UST LAW PRE-WEEK 2018

JURISDICTION OVER THE ISSUES TOTALITY RULE

The power of the court to try and decide issues raised
in the pleadings of the parties (Reyes v. Diaz, G.R. No.
48754, November 26, 1941) or by their agreement in a
pre-trial order or those tried by the implied consent of
the parties.(Sec. 5, Rule 10)
It may also be conferred by waiver or failure to object
to the presentation of evidence on a matter not raised
in the pleadings. The issues tried shall be treated in all
respect as if they had been raised in the pleadings.(Sec.
5, Rule 10)
JURISDICTION OVER THE RES
OR PROPERTY IN LITIGATION
Where there are several claims or causes of actions
between the same or different parties embodied in one
complaint, the amount of the demand shall be the
totality of the claims in all causes of action, irrespective
of whether the causes of action arose out of the same
or different transactions.(Sec. 33(1], B.P. 129, as
amended)
However, the causes of action in favor of the two or
more plaintiffs or against the two or more defendants
should arise out of the same transaction or series of
transactions and there should be a common question of
law or fact, as provided in Sec. 6, Rule 3 (permissive
joinder of parties).

It is acquired either by: The totality rule is not applicable if the claims are
separate and distinct from each other and did not arise
1. The seizure of the property under legal process; from the same transaction.
2. As a result of the institution of legal proceedings,
in which the power of the court is recognized and Claim for damages
made effective (Banco Español Filipino v. Palanca,
G.R. No. L-11390, Macrh 26, 1918); If the main action is for the recovery of sum of money
3. Placing the property of thing under the custody of and the damages being claimed are merely the
the court(custodia legis),e.g. attachment of consequences of the main cause of action, the same are
property; or not included in determining the jurisdictional amount.
4. The court through statutory authority conferring However, in cases where the claim for damages is the
upon it the power to deal with the property or main cause of action, or one of the causes of action, the
thing within the court’s territorial amount of such claim shall be considered in
jurisdiction,e.g.suits involving the status of the determining the jurisdiction of the court.(Albano, 2010)
parties or suits involving the property in the
Philippines of non-resident defendants.(Riano,
2011)

CIVIL PROCEDURE

ACTIONS

PERSONAL ACTIONS AND REAL ACTIONS

Personal Action Real Action

Scope Recovery of personal property, the
enforcement of a contract or the recovery of
damages.
Basis Founded on privity of contract such as
damages, claims of money, etc.
Affects title to or possession of real
property, or an interest therein. (Sec. 1, Rule
4)
Founded upon the privity of a real estate.
The realty or interest therein is the subject
matter of the action.

NOTE: It is important that the matter in

litigation must also involve any of the
following issues:
(POPIFT)
1. Partition;
2. Ownership;
3. Possession;
4. Any interest in real property;
5. Foreclosure of mortgage; or
6. Title. (Riano, 2014)

Venue Place where the plaintiff or any of the Area wherein the real property involved, or
principal plaintiffs resides, or where the a portion thereof is situated. (Sec. 1, Rule 4)
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. (Sec. 2, Rule 4)

ACTIONS IN REM, IN PERSONAM AND QUASI IN REM

Action In Rem Action InPersonam Action Quasi In Rem

Nature A proceeding to determine A proceeding to enforce A proceeding to subject the
title, status or condition of personal rights and property of the named
property within its borders. obligations brought against defendant or his interests
the person. (Riano, 2014) therein to the obligation or
lien burdening the property.
(Riano, 2014)
Scope Directed against the thing Directed against particular Directed against particular
itself instead of against the persons. persons with respect to the

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 REMEDIAL LAW
person. (Riano, 2014)
Required Jurisdiction over the person of
jurisdiction the defendant is not required.
Jusrisdiction over the res is
required through publication
in a newspaper of general
circulation.
Effect of judgment Judgment is binding upon the
whole world.
res.
Jurisdiction over the person of Jurisdiction over the person of
the defendant is required. the defendant is not required
as long as jurisdiction over the
res is acquired. However,
summons must still be served
for purposes of due process.
Judgment is binding only upon Judgment will be binding only
the parties impleaded or their upon the litigants, privies, and
successors-in-interest but not successors-in-interest but the
upon third person. judgment shall be executed
against a particular property.
The res involved will answer
for the judgment.

INDEPENDENT CIVIL ACTION contractual or obligations arising from law;

This is an action based on provisions of the Civil Code,
namely Articles 32, 33, 34 that arise from law and
Article 2176 that arises from quasi-delicts. They shall
proceed independently of the criminal action and shall
require only a preponderance of evidence.
intentional torts; and culpa aquiliana); or
b. where the injured party is granted a right to
file an action independent and distinct from
the criminal action. (L.G. Foods Corporation v.
Pagapong-Agraviador, G.R. No. 158995,
September 26, 2006)

Two separate civil liabilities that may arise from a NOTE: The filing of the collection case after the
single act or omission dismissal of the estafa cases against the offender did
not amount to forum-shopping. Although the cases
1. Civil liability ex –delicto; or filed by the offended party arose from the same act or
2. Independent civil liabilities such as those: omission of the offender, they are, however, based on
different causes of action such that they can proceed
a. not arising from an act or omission independently of each other. (Lim v. Kou Co Ping, G.R.
complained of as felony (e.g., culpa No. 175256, August 23, 2012, Del Castillo, J.)

CAUSE OF ACTION

RIGHT OF ACTION versus CAUSE OF ACTION

Right of Action Cause of Action

Definition Right of a plaintiff to bring an action and to Act or omission by which a party violates the
prosecute that action until final judgment. rights of another.
Requisites 1. There must be a good cause (existence of a cause (LOV)
of action); 1. A legal right in favor of the plaintiff;
2. Compliance with all the conditions precedent to 2. An obligation on the part of the defendant to
the bringing of the action; and respect or not to violate sich right; and
3. Right to bring and maintain the action must be 3. Act or omission on the part of such defendant in
by the person instituting it. violation of the right of the plaintiff, or
constituting a breach of the obligation of the
defendant to the plaintiff for which the latter
may maintain an action for recovery of damages
or other appropriate relief. (Riano, 2014)
Nature Procedural in character or the consequence of the Actually predicated upon substantive law on
violation of the right of the plaintiff. (Riano, 2014) quasi-delicts under the NCC. (Riano, 2014)
Basis Plaintiff’s cause of action. There is no right of Allegations of the plaintiff in the complaint.
action where there is no cause of action. (Ibid.)

FAILURE TO STATE A CAUSE OF ACTION

Failure to State Cause of Action vs. Lack of Cause of Action

Failure to state cause of action Lack of cause of action

Definition Insufficiency of allegation in the Where the evidence does not sustain the cause of action.
pleading.
As a ground Raised in a motion to dismiss under Raised in a demurrer to evidence under Rule 33 after the
for dismissal Rule 16 before a responsive pleading is plaintiff has rested his case.
filed. (Riano, 2014)
Determination Determined only from the allegations of Resolved only on the basis of the evidence he presented in
the pleading and not from evidentiary support of his claim. (Riano, 2014)
matters. (Ibid.)

SPLITTING A SINGLE CAUSE OF ACTION AND ITS
EFFECTS
It is the act of dividing a single or indivisible cause of
action into several parts or claims and bringing several
actions thereon. (Riano, 2014)
The practice of splitting a cause of action is
discouraged because it breeds multiplicity of suits,
clogs the court dockets, leads to vexatious litigation,
operates as an instrument of harassment, and
generates unnecessary expenses to the parties. It
applies not only to complaints but also to
counterclaims and cross-claims. (Riano, 2014)
If two or more suits are instituted on the basis of the
same cause of action, the filing of one or a judgment

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 UST LAW PRE-WEEK 2018
upon the merits in any one is available as a ground for any other general stands to be: (BIE)
the dismissal of the others. (Sec. 4, Rule 2) disqualifications of a 1. Benefited; or
party. 2. Injured by the
Remedy against splitting cause of action: File a judgment in the suit;
motion to dismiss, on the ground of litis pendentia or or
on the ground of res judicata. 3. The party entitled to
the avails of the suit.
JOINDER AND MISJOINDER OF CAUSES OF ACTION (Sec. 2, Rule 3)

Joinder of causes of action NOTE: By real interest is

meant a present
It is the assertion of as many causes of action a party substantial interest, as
may have against another in one pleading alone. (Sec. 5, distinguished from a mere
Rule 2) expectancy or a future,
contingent, subordinate,
Requisites or consequential interest.
(Miñoza v. Lopez, G.R. No.
1. The party shall comply with the rules on joinder of 170914, April 13, 2011,
parties (Sec. 6, Rule 3) Del Castillo, J.)
a. Right to relief arises out of the same Ground for a motion to Ground for motion to
transacton or series of transaction; and dismiss based on the dismiss for failure to state
b. There is common question of law or fact; ground of lack of legal cause of action.
capacity to sue.
NOTE: This presupposes multiple defendants.
Indispensable Parties Necessary Parties
2. The joinder shall not include special civil actions Parties in interest without Not indispensable but
governed by special rules; whom no final who ought to be joined as
3. Where the causes of action are between the same determination can be had a party if complete relief
parties but pertain to different venues or of an action shall be is to be accorded as to
jurisdictions, the joinder may be allowed in the joined either as plaintiffs those already parties, or
RTC provided one of the causes of action falls or defendants. (Sec. 7, for a complete
within the jurisdiction of said court and venue lies Rule 3) determination or
therein; and settlement of the claim
4. Where claims in all causes of action are principally NOTE: Must be joined subject of the action. (Sec.
for recovery of money, the aggregate amount under any and all 8, Rule 3)
claimed shall be the test of jurisdiction. (Sec. 5, conditions because the
Rule 2) court cannot proceed
without him. (Riano,
NOTE: A joinder of causes of action is only permissive, 2014)
not compulsory; hence, a party may desire to file a
single suit for each of his claims. (Riano, 2014) No valid judgment if they The case may be
Misjoinder of causes of action are not joined. determined in court but
the judgment therein will
There is a misjoinder when two or more causes of NOTE: The absence of an not afford a complete
action were joined in one complaint when they should indispensable party relief in favor of the
not be so joined. This is not a ground for dismissal of an renders all subsequent prevailing party.
action. A misjoined cause of action may, on motion of a actions of the court null
party, or on the initiative of the court, be severed and and void for want of
proceeded with separately. (Sec. 6, Rule 2) authority to act, not only
as to the absent parties
Joinder of causes of action vs. Joinder of parties but even as to those
present. (Riano, 2014)
Joinder of Causes of Joinder of Parties
Action COMPULSORY AND PERMISSIVE JOINDER OF
It refers to the procedural It may be employed when PARTIES
device whereby a party there are various causes
who asserts various of actions that accrue in Compulsory joinder of parties (2009 Bar)
claims against the same favor of one or more
or several parties, file all plaintiffs against one or The joinder of parties becomes compulsory when the
his claims against them in more defendants i.e. there one involved is an indispensable party. Clearly, the rule
a single complaint. is plurality of parties. directs a compulsory joinder of indispensable parties.
It will not necessarily It may or may not be (Riano, 2014)
involve a joinder of involved in a joinder of
parties. causes of actions. (Riano, Permissive joinder of parties (2002 Bar)
2014)
1. Right to relief arises out of the same transaction or
series of transactions (connected with the same
PARTIES TO CIVIL ACTIONS subject matter of the suit); and
2. There is a question of law or fact common to all
Lack of Legal Capacity Lack of Legal the plaintiffs or defendants.
to Sue Personality
to Sue MISJOINDER AND NON-JOINDER OF PARTIES
It refers to plaintiff’s The plaintiff is not the
general disability to sue real party in interest. Misjoinder of Parties Non-Joinder of Parties
such as on account of He is made a party to an He is supposed to be
minority, insanity, Real party in interest action although he should joined but is not
incompetence, lack of not be impleaded. (Riano, impleaded in the action.
juridical personality or He is the party who 2014) (Riano, 2014)

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 REMEDIAL LAW
If there is a claim against Whenever in any pleading EFFECTS OF STIPULATIONS ON VENUE
a party misjoined, the in which a claim is
same may be severed and asserted a necessary The mere stipulation on the venue of an action is not
proceeded with party is not joined, the enough to preclude parties from bringing the case in
separately. (Sec. 11, Rule pleader shall set forth his other venue. In the absence of restrictive words (e.g.
3) name, if known, and shall solely, to the exclusion of all other courts, etc.), the
state why he is omitted. stipulation should be deemed as merely an agreement
Should the court find the on an additional forum, not as limiting venue. While
reason unmeritorious, it they are considered valid and enforceable, venue
may order the inclusion of stipulations in a contract do not, as a rule, supersede
the omitted necessary the general rule set forth in Rule 4 in the absence of
party if jurisdiction over qualifying or restrictive words. If the language is
his person may be restrictive, the suit may be filed only in the place
obtained. (Sec. 9, Rule 3) agreed upon by the parties. (Spouses Lantin v. Lantion,
G.R. No. 160053, August 28, 2006)
Neither misjoinder nor non-joinder of parties is a
ground for the dismissal of an action. Parties may be RULES ON PLEADINGS
dropped or added by the court on motion of any party
or motu proprio at any stage of the action and on such Pleadings are the written statements of the respective
terms as are just. (Sec. 11, Rule 3) (2015, 2017 Bar) claims and defenses of the parties submitted to the
court for appropriate judgment. (Sec. 1, Rule 60) (2007
However, even if neither is a ground for dismissal of Bar)
the action, the failure to obey the order of the court to
drop or add a party is a ground for the dismissal of the A mere letter addressed to an RTC Executive Judge,
complaint based on the failure of the plaintiff to comply requesting for his intervention regarding an alleged
with a court order. (Sec. 3, Rule 17; Riano, 2014) anomalous auction sale is not considered a pleading or
complaint for lack of compliance with Rule 7 of the
EFFECT OF DEATH OF PARTY LITIGANT Rules of Court. It cannot be the basis of
jurisdiction.(Eduardo D. Monsanto, Decoroso D.
1. Purely personal action – the death of either of the Monsanto, Sr., and Rev. Fr. Pascual D. Monsanto, Jr. v.
parties extinguishes the claim and the action is Leoncio Lim and Lorenzo De Guzman, G.R. No. 178911,
dismissed. September 17, 2014,Del Castillo, J.)
2. Action that is not purely personal – claim is not
extinguished and the party should be substituted KINDS OF PLEADINGS
by his heirs, executor or administrator. In case of
minor heirs, the court may appoint a guardian ad Counterclaim
litem for them.
3. Action for recovery of money arising from contract Compulsory Permissive Counterclaim
and the defendant dies before entry of final Counterclaim
judgment – it shall not be dismissed but shall One which arises out of It does not arise out of
instead be allowed to continue until entry of or is necessarily nor is it necessarily
judgment. A favorable judgment obtained by the connected with the connected with the
plaintiff shall be enforced in the manner provided transaction or subject matter of the
in the rules for prosecuting claims against the occurrence that is the opposing party’s claim.
estate of a deceased person. (Sec. 20, Rule 3) subject matter of the
opposing party’s claim
NOTE: The substitute defendant need not be (Sec. 7, Rule 6)
summoned. The order of substitution shall be served Barred if not set up in the Not barred even if not set
upon the parties substituted for the court to acquire action (Sec. 2, Rule 9) up in the action
jurisdiction over the substitute party. If there is notice Need not be answered; It must be answered;
of death, the court should await the appointment of no default otherwise, the party may
legal representative; otherwise, subsequent be declared in default.
proceedings are void. (Riano, 2014) Not an initiatory Initiatory pleading
pleading
VENUE The court has Must be within the
jurisdiction to entertain jurisdiction of the court
VENUE OF ACTIONS AGAINST NON-RESIDENTS both as to the amount where the case is
and nature. (Sec. 7, Rule pending and cognizable
Defendant does 1. Personal actions – where the 6; Ibid.) by regular courts of
not reside but is plaintiff or any of the principal justice, otherwise,
found in the plaintiffs resides, or where the defendant will have to
Philippines non-resident defendant may be file it in separate
found, at the election of the proceeding which
plaintiff. (Riano, 2014, citing requires payment of
Sec. 2, Rule 4) docket fee.
2. Real actions – area wherein the
real property involved, or a Effect on the counterclaim when the complaint is
portion thereof, is situated. (Id., dismissed
citing Sec. 1, Rule 4)
Defendant does 1. If the action affects the 1. If no motion to dismiss has been filed, any of the
not reside and personal status of the plaintiff grounds for dismissal under Rule 16 may be
is not found in – place where the plaintiff pleaded as an affirmative defense in the answer,
the Philippines resides. and in the discretion of the court, a preliminary
2. If it involves any property of hearing may be had thereon as if a motion to
the non-resident defendant – dismiss has been filed. (Sec. 6, Rule 16) After
where the property or any hearing, when the complaint is dismissed, the
portion thereof is situated. counterclaim, whether compulsory or permissive,
(Sec. 3, Rule 4) is not dismissed.

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2. When the plaintiff himself files a motion to dismiss
his complaint after the defendant has pleaded his
answer with a counterclaim. If the court grants the
motion, the dismissal shall be limited to the
complaint. It shall be without prejudice to the
right of the defendant to prosecute his
counterclaim in a separate action unless within 15
days from notice of the motion, he manifests his
preference to have his counterclaim resolved in
the same action. (Sec. 2, Rule 17)
3. When the complaint is dismissed through the fault
of the plaintiff and at a time when a counterclaim
has already been set up, the dismissal is without
prejudice to the right of the defendant to
prosecute his counterclaim in the same or
separate action. (Sec. 3, Rule 17; Riano, 2014)
Third (fourth, etc.) party complaint
it fatally defective. (Sarmiento v. Zaranta, G.R. No.
167471, February 5, 2007)
3. The absence of verification may be corrected by
requiring an oath. The rule is in keeping with the
principle that rules of procedure are established to
secure substantial justice and that technical
requirements may be dispensed with in
meritorious cases. (Pampanga Sugar Development
Co., Inc. v. NLRC, G.R. No. 112650, May 29, 1997)
Forum Shopping (2006 Bar)
It is an act of a party against whom an adverse
judgment has been rendered in one forum of seeking
and possibly getting a favorable opinion in another
forum, other than by appeal or the special civil action
of certiorari. (Sps. Carpio v. Rural Bank of Sto. Tomas
Batangas, G.R. No. 153171, May 4, 2006)

Third-party complaint Rules on bringing in new
It is proper when not
one of the third-party
defendants therein is a
party to the main
action. (Riano, 2011)
Complaint-in-intervention
NOTE: A civil case before the trial court involving
parties recovery of payment of the insured's insurance claim
If one or more of the plus damages can proceed simultaneously with an
defendants in a administrative case before the Insurance
counterclaim or cross- Commissioner. While the parties are the same, and
claim is already a party both actions are predicated on the same set of facts,
to the action, then the and will require identical evidence, the issues to be
other necessary resolved, the quantum of evidence, the procedure to be
parties may be followed, and the reliefs to be adjudged by these two
brought in under the bodies are different. (Malayan Insurance Co., Inc. v. Lin,
rules on bringing in G.R. No. 207277, January 16, 2017, Del Castillo, J.)
new parties.
Non-compliance with the rule on certification
against forum shopping

1. Legal interest in the matter in controversy; It is not curable by mere amendment and shall be a
2. Legal interest in the success of either of the cause for the dismissal of action. (Ibid.)
parties;
3. Legal interest against both; NOTE: Willful and deliberate forum shopping of the
4. So situated as to be adversely affected by a party or his counsel shall be a ground for summary
distribution or other disposition of property in the dismissal. This dismissal is with prejudice and shall
custody of the court or of an officer thereof; constitute direct contempt as well as cause for
5. Intervention will not unduly delay or prejudice the administrative sanctions on the part of the counsel.
adjudication of the rights of original parties; and (Ibid.)
6. Intervenor’s rights may not be fully protected in a
separate proceeding. Execution of certification against forum shopping
(Sec. 1, Rule 19) (2000, 2014 Bar)

VERIFICATION AND CERTIFICATION AGAINST As a rule, the certification against forum shopping must
FORUM SHOPPING be executed by the party-pleader, not by his counsel. If,
however, for reasonable or justifiable reasons, the
How to verify pleadings party-pleader is unable to sign, he must execute a
Special Power of Attorney designating his counsel of
It is verified by an affidavit. This affidavit declares that record to sign on his behalf.(Anderson v. Ho, G.R. No.
the: 172590, January 7, 2013, Del Castillo, J.)

1. Affiant has read the pleading; and
2. Allegations therein are true and correct of his
personal knowledge or based on authentic
records. (Sec. 4, Rule 7)
GR: Verification is not necessary in pleadings.
With respect to a corporation, the certification against
forum shopping may be signed for and on its behalf, by
a specifically authorized lawyer who has personal
knowledge of the facts required to be disclosed in such
document. (Cosco Philippines Inc. v. Kemper Insurance
Co., G.R. No. 179488, April 23, 2012)

XPN: When otherwise specifically required by law or NOTE: The certification against forum shopping is only
rule. (Ibid.) required in a complaint or other initiatory pleading.
(Sec. 5, Rule 7; Arquiza v. Court of Appeals, G.R. No.
Effects of lack of verification (2016 Bar) 160479, June 8, 2005)

1. A pleading required to be verified but lacks the Substantial compliance

proper verification shall be treated as an unsigned
pleading. (Sec. 4, as amended by A.M. 00-2-10, May
1, 2000) Hence, it produces no legal effect. (Sec. 3,
Rule 7)
2. It does not necessarily render the pleading
defective. It is only a formal and not a
jurisdictional requirement. The requirement is a
condition affecting only the form of the pleading
(Benguet Corp. v. Cordillera Caraballo Mission, Inc.,
G.R. No. 155343, September 2, 2005) and non-
compliance therewith does not necessarily render
The court must consider the concept of "substantial
compliance" in the requirements of verification and
certificate of non-forum shopping.
The verification requirement is deemed substantially
complied with when a person who has sufficient
knowledge to swear to the truth of the allegations in
the complaint or petition signs the verification; and
matters alleged therein have been made in good faith
or are true and correct. Thus, there is substantial

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 REMEDIAL LAW
compliance if at least one of the petitioners makes a FILING AND SERVICE OF PLEADINGS, JUDGMENTS,
proper verification. FINAL ORDERS AND RESOLUTIONS

On the other hand, when the plaintiffs or petitioners MANNER OF FILING

share a common interest and invoke a common cause
of action or defense, the signature of one of them in the
certificate against forum shopping is considered
substantial compliance with the rules.
The court could have ordered that those who did not
sign be dropped as parties, but not the outright
dismissal of the petition. (Bacolor v. VL Makabali
Memorial Hospital, Inc., G.R. No. 204325, April 18, 2016,
Del Castillo, J.)
DEFAULT
A party may be declared in default when he fails to
answer within the time allowed therefor, and upon
motion of the claiming party with notice to the
defending party, and proof of such failure. (Sec. 3, Rule
9)
Effect of an order of default
It is the act of presenting the pleading or other paper to
the clerk of court. (Sec. 2, Rule 13)
1. By presenting the original copies thereof, plainly
indicated as such, personally to the clerk of court;
or
2. By sending them through registered mail.
(Sec. 3, Rule 13)
In the first case, the date of filing is the date of receipt.
In the second case, the date of mailing is the date of
receipt.
NOTE: The date of delivery of pleadings to a private
letter-forwarding agency is not to be considered as the
date of filing thereof in court; instead, the date of actual
receipt by the court is deemed the date of filing of that
pleading. (Heirs of Numeriano Miranda, Sr., v. Pablo
Miranda, G.R. No. 179638, July 8, 2013, Del Castillo, J.)

1. The party declared in default loses his standing in MODES OF SERVICE

court and prevents him from taking part in the
trial (Sec. 3(a), Rule 9);
2. While the defendant can no longer take part in the
trial, he is nevertheless entitled to notices of
subsequent proceedings. (Sec. 3(a), Rule 9) It is
submitted that he may participate in the trial, not
as a party but as a witness; and
3. A declaration of default is not an admission of the
truth or the validity of the plaintiff’s claims.
(Monarch Insurance v. CA, G.R. No. 92735, June 8,
2000)
Relief from an order of default
Remedies from an order of default
After notice of Motion under oath to set aside
order and before the order of default on the
judgment grounds of FAME and he has
meritorious defense
(PeRMS)
1. Personal service (Sec. 6, Rule 13);
2. Service by registered mail (Sec. 7, Rule 13); or
3. Substituted service. (Sec. 8, Rule 13)
Substituted Service(2002, 2004, 2009 Bar)
If service of pleadings, motions, notices, resolutions,
orders and other papers cannot be made through
personal service or by mail, the office and place of
residence of the party or his counsel being unknown,
service may be made by delivering the copy to the clerk
of court, with proof of failure of both personal service
and service by mail. (Sec. 8, Rule 13)
AMENDMENT
AMENDMENTS AS A MATTER OF RIGHT

If denied – he may move for Amendment is considered as a matter of right at any

reconsideration; Grounds: time before a responsive pleading is served or, in the
FAME case of a reply, at any time within 10 days after it is
served. (Sec. 2, Rule 10)
If denied -Petition for certiorari
under Rule 65 NOTE: It is settled that a motion to dismiss is not the
responsive pleading contemplated by the Rule. A
Remedies from a judgment of default plaintiff may file an amended complaint even after the
original complaint was ordered dismissed, provided
After judgment but 1. New trial (Rule 37); or that the order of dismissal is not yet final. (Riano, 2014,
before judgment 2. Appeal (Rule 40 or 41) citing Bautista v. Maya-Maya Cottages, Inc., G.R. No.
becomes final and Grounds: 148411, November 29, 2005)
executory 1. Failure of the plaintiff to
prove the material AMENDMENTS BY LEAVE OF COURT
allegations of the
complaint; 1. If the amendment is substantial(Sec. 3, Rule 10); or
2. Decision is contrary to 2. If a responsive pleading had already been served.
law; or (Siasoco v. CA, G.R. No. 132753, February 15, 1999)
3. The amount of judgment
is excessive or different in AMENDMENTS TO CONFORM TO OR
kind from that prayed for. AUTHORIZE PRESENTATION OF EVIDENCE
(Otero v. Tan, G.R. No.
200134, August 15, 2012) 1. When issues not raised by the pleadings are tried
After judgment has 1. Petition for Relief from with the express or implied consent of the parties;
become final and judgment (Rule 38); or
executory 2. Annulment of Judgment NOTE: Failure to amend does not affect the result
(Rule 47) of the trial of said issue.
Defendant has been He may avail of the special civil
wrongly or action of certiorari under Rule 2. If evidence is objected to at the trial on the ground
improvidently 65. that it is not within the issues made by the
declared in default pleadings, if the presentation of the merits of the
action and the ends of substantial justice will be
subserved thereby. (Sec. 5, Rule 10)

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SUPPLEMENTAL PLEADINGS 3. Service by publication; and
4. Substituted service.
Amended Pleading Supplemental Pleading
Refers to the facts Refers to facts occurring SUBSTITUTED SERVICE
existing at the time of after the filing of the
filing of original original pleading 1. The party relying on substituted service or the
pleading sheriff must show that defendant cannot be served
Supersedes the original Merely supplements the promptly or there is impossibility of prompt
original pleading service;
May be amended Always with leave of 2. The sheriff must describe in the Return of
without leave of court court Summons the facts and circumstances
before a responsive surrounding the attempted personal service;
pleading is filed 3. If the substituted service will be effected at
defendant’s house or residence, it should be left
EFFECT OF AMENDED PLEADING with a person of “suitable age and discretion
residing therein” and must have the “relation of
An amended pleading supersedes the pleading it confidence” to the defendant;
amends. However, admissions in the superseded 4. If the substituted service will be done at
pleading can still be received in evidence against the defendant’s office or regular place of business,
pleader. Claims or defenses alleged therein but not then it should be served on a competent person in
incorporated or reiterated in the amended pleading are charge of the place. (Manotoc v. CA, G.R. No.
deemed waived. (Sec. 8, Rule 10) 130974, August 16, 2006)

SUMMONS Impossibility of prompt service (2013, 2016, 2017

It is the writ by which the defendant is notified of the
action brought against him. (Gomez v. CA, G.R. No.
127692, March 10, 2004)
An important part of that notice is a direction to the
defendant that he must answer the complaint within
the period fixed by the Rules, and that unless he so
answers, plaintiff will take judgment by default and
may be granted the relief applied for. (Riano, 2014)
Bar)
For substituted service of summons to be available,
there must be several attempts by the sheriff to
personally serve the summons within a reasonable
period of one month which eventually resulted in
failure to prove impossibility of prompt service.
"Several attempts" means at least three (3) tries,
preferably on at least two different dates. (Borlongan v.
BDO, G.R. No. 217617 and 215840, April 5, 2017)

Alias Summons Impossibility of prompt service should be shown by

stating the efforts made to find the defendant
Summons issued by the court when the original personally and the fact that such efforts failed. This
summons cannot be served or when wrongfully served. statement should be made in the proof of service.
(Galura v. Math-Agro Corporation, G.R. No. 167230,
NATURE AND PURPOSE OF SUMMONS IN RELATION August 14, 2009)
TO ACTIONS IN PERSONAM, IN REM AND QUASI IN
REM Summons on private juridical entity (1999, 2006
Bar)
1. Actions in personam
a. To acquire jurisdiction over the person of the Service may be made on the: (PIGS-MT)
defendant; and
b. To give notice to the defendant that an action 1. President;
has been commenced against him. (Umandap 2. In-house counsel;
v. Sabio, Jr., G.R. No. 140244, August 29, 2000) 3. General manager;
4. Corporate secretary;
2. Actions in rem and quasi in rem – not to acquire 5. Managing partner; or
jurisdiction over the defendant but mainly to 6. Treasurer. (sec. 11, rule 14)
satisfy the constitutional requirement of due
process. (Gomez v. CA, G.R. No. 127692, March 10, NOTE: The enumeration is restricted, limited and
2004) exclusive.(E.B. Villarosa& Partner, Ltd. v. Benito, G.R.
No. 136326, August 6, 1999)
VOLUNTARY APPEARANCE
EXTRATERRITORIAL SERVICE, WHEN ALLOWED
GR: The defendant’s voluntary appearance shall be
equivalent to service of summons and the consequent 1. The defendant is a nonresident;
submission of one’s person to the jurisdiction of the 2. He is not found in the Philippines; and
court. (Sec. 20, Rule 14) 3. The action against him is either in rem or quasi in
rem.
NOTE: Voluntary appearance cures the defect in the
service of summons. (Sy v. Fairland Knitcraft Co., Inc, MOTIONS
G.R. No. 182915, December 12, 2011, Del Castillo, J.)
In general, a motion is an application for relief other
XPN: The inclusion in a motion to dismiss of other than by a pleading. (Sec. 1, Rule 15) (2007 Bar)
grounds (affirmative defenses, not affirmative relief)
aside from/in addition to lack of jurisdiction over the MOTIONS IN GENERAL
person of the defendant shall not be deemed a
voluntary appearance. Kinds of motions

Types of service of summons(PEPS) 1. Motion ex parte – One which does not require that
the parties be heard and which the court may act
1. Personal service; upon without prejudicing the rights of the other
2. Extraterritorial service; party (e.g. motion to set case for pre-trial) (2002
Bar);

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 REMEDIAL LAW
2. Litigated motion – One which requires parties to b. The court which rendered it has
be heard before a ruling on the motion is made by jurisdiction over the subject matter
a court (e.g. motion to dismiss and motion for and the parties;
summary judgment) (Riano, 2014); c. Judgment must be on the merits; and
3. Pro forma motion – One which does not satisfy the d. There must be identity of parties,
requirements of the rules and one which will be subject matter and causes of action.
treated as a motion intended to delay the
proceedings. (Marikina Development Corporation 7. That the pleading asserting the claim states no
v. Flojo, G.R. No. 110801, December 8, 1995) cause of action;
8. That the claim or demand set forth in the
Omnibus Motion Rule plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;
GR: All grounds for objection then available in 9. That the claim on which the action is founded is
attacking a pleading, order, judgment, or proceeding unenforceable under the provisions of the statute
should be invoked, otherwise, they shall be deemed of frauds; and
waived. (Sec. 8, Rule 15) (2010 Bar) 10. That a condition precedent for filing the claim has
not been complied with. (Sec. 1, Rule 16)
XPNs:
1. Lack of jurisdiction over the subject matter; Bar by dismissal
2. Litis pendentia;
3. Res judicata; and Instances when a complaint can no longer be re-filed
4. Prescription. after the court grants a motion to dismiss:
(Sec. 1, Rule 9)
1. Cause of action is barred by prior judgment (Res
MOTION TO DISMISS judicata);
2. Bar by the statute of limitations (Prescription);
GR: A motion must be filed by a party thereto. 3. Claim or demand has been paid, waived,
abandoned, or otherwise extinguished; and
XPNs: 4. Claim is unenforceable under the statute of frauds.
1. Those cases where the court may dismiss a case
motu proprio (i.e. lack of jurisdiction over the NOTE: In the four instances mentioned, the remedy
subject matter; litis pendentia; res judicata; and would be to appeal the dismissal.
prescription) (Sec. 1, Rule 9);
2. Failure to prosecute for an unreasonable length of Distinguished from demurrer to evidence under
time (Sec. 3, Rule 17); and Rule 33
3. Rule on Summary Procedure. (Sec. 4, 1991, Revised
Rule on Summary Procedure) Rule 16 (Motion to Rule 33 (Demurrer to
Dismiss) Evidence in Civil Cases)
Grounds Grounded on Based on insufficiency
preliminary objections of evidence
1. That the court has no jurisdiction over the person May be filed by any May be filed only by
of the defending party; defending party the defendant against
2. That the court has no jurisdiction over the subject against whom a claim the complaint of the
matter of the claim; is asserted in the plaintiff
3. That venue is improperly laid; action
4. That the plaintiff has no legal capacity to sue; Should be filed within May be filed only after
the time for but prior the plaintiff has
NOTE: The issue of the plaintiff’s lack of legal to the filing of the completed the
capacity to sue cannot be raised for the first time answer of the presentation of his
on appeal where the defendant dealt with the defending party to the evidence. (Riano,
former as a party in the proceeding. pleading asserting the 2014)
claim
5. That there is another action pending between the If denied, defendant If denied, defendant
same parties for the same cause (2007 Bar); must file an answer may present evidence.
within the balance, but
NOTE: Requisites of Litis Pendentia: (PRR) not less than five (5) Denial is not
days from receipt of appealable because
a. Identity of the parties or at least such notice of denial. the order is
parties representing the same interest interlocutory. (Riano,
in both actions; If granted, plaintiff 2014)
b. Identity of rights asserted and reliefs may appeal or if
prayed for, being founded on the same subsequent case is not If granted, but on
facts; and barred, he may re-file appeal the order of
c. Identity with respect to the two the case. It depends dismissal is reversed,
preceding particulars, such that any on the ground if it is the defendant loses his
judgment that may be rendered in the with or without right to present
pending case would amount to res prejudice. (Sec 1, Rule evidence. (Riano,
judicata in the other case. (Lim v. 41) 2014)
Vianzon, G.R. No. 137187, August 3,
2006) DISMISSAL OF ACTIONS

6. That the cause of action is barred by a prior DISMISSAL UPON NOTICE BY THE PLAINTIFF;
judgment or by the statute of limitations; TWO – DISMISSAL RULE

NOTE: Requisites of res judicata: It applies when:

a. The former judgment must be final; 1. Plaintiff has twice dismissed the actions by filing a
second notice of dismissal;

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2. Based on or including the same claim; and It is set when the plaintiff It is ordered by the court
3. In a court of competent jurisdiction. moves ex parte to set the and no motion to set the
(Riano, 2014) case for pre-trial. (Sec. 1, case for pre-trial is
Rule 18) required from either the
NOTE: The second notice of dismissal will bar the re- prosecution or the
filing of the action because it will operate as an defense. (Sec. 1, Rule 118)
adjudication of the claim upon the merits. The motion to set the case The pre-trial is ordered
for pre-trial is made after by the court after
PRE-TRIAL the last pleading has been arraignment and within
served and filed. (Ibid.) 30 days from the date the
It is a procedural device by which the court is called court acquires
upon, after the filing of the last pleading, to compel the jurisdiction over the
parties and their lawyers to appear before it, and person of the accused.
negotiate an amicable settlement or otherwise make a (Ibid.)
formal statement and embody in a single document the It considers the It does not include the
issues of fact and law involved in the action, and such possibility of an amicable possibility of amicable
other matters as may aid in the prompt disposition of settlement as an settlement of criminal
the action. important objective. (Sec liability as one of its
2[a], Rule 18) purposes. (Ibid.)
It is mandatory. (Sec. 2, Rule 18)
Requires the proceeding All agreements or
Duty to file during the preliminary admissions made or
conference to be recorded entered during the pre-
After the last pleading has been served and filed, it in the minutes of trial conference shall be
shall be the duty of the plaintiff to promptly move ex preliminary conference to reduced in writing and
partethat the case be set for pre-trial. (Sec. 1, Rule 18) be signed by both parties signed by both the
and/or counsel. The rule accused and counsel,
NOTE: If the plaintiff does not file a motion to set the allows either the party or otherwise, they cannot be
case for pre-trial five days after the last pleading has his counsel to sign the used against the accused.
been served and filed, the Clerk of Court is authorized minutes. (A.M. No. 03-1- (Sec. 2, Rule 118)
to give to the parties a notice of pre-trial. There will be 09-SC)
no delay in the case because the Clerk of Court will take Sanctions for non- The sanctions in a
over. (A.M. 03-1-09-SC, July 13, 2004) appearance in a pre-trial criminal case are imposed
are imposed upon the upon the counsel for the
Non-compliance with service of notice of pre-trial plaintiff and the accused or the
defendant in a civil case. prosecutor. (Sec. 3, Rule
If no notice of pre-trial is served, all the proceedings at (Sec. 4, Rule 18) 118)
the pre-trial are null and void. (Sec. 3, Rule 18) It is specifically required It is not specifically
to be submitted in a civil required in a criminal
APPEARANCE OF PARTIES; case. (Sec. 6, Rule 18) case.
EFFECT OF FAILURE TO APPEAR
One Day Examination of Witness Rule (2009, 2016
1. Plaintiff’s failure to appear – cause for the Bar)
dismissal of the action, with prejudice, unless
otherwise ordered by the court. In the pre-trial, the court shall ask the parties to agree
on the specific dates for continuous trial, adhere to the
NOTE: The plaintiff’s remedies from the order of case flow chart determined by the court and use the
dismissal include: time frame for each stage setting the trial dates.
a. appeal; or
b. re-filing of the complaint, if the order of Adherence to the One Day Examination of Witness Rule
dismissal is without prejudice. (Sec. 1 [g], Rule shall be required where the witness shall be fully
41) examined in 1 day only, subject to the court’s
discretion during the trial on whether or not to extend
2. Defendant’s non-attendance – cause to allow the the examination for justifiable reasons.
plaintiff to present evidence ex parte, and the
court to render judgment on the basis thereof. Most Important Witness Rule (2016 Bar)
(Sec. 5, Rule 18)
Where no settlement has been effected, the court shall
NOTE: The defendant may move for the follow the Most Important Witness Rule, where the
reconsideration of the order and, if the denial is court shall determine the most important witnesses
tainted with grave abuse of discretion, he may file and limit the number of such witnesses and require the
a petition for certiorari. parties and/or counsels to submit to the branch clerk
of court the names, addresses and contact numbers of
PRE-TRIAL BRIEF; EFFECT OF FAILURE TO FILE the witnesses to be summoned by subpoena. Note,
however, that the court may also refer the case to a
It shall have the same effect as failure to appear at the trial by commissioner under Rule 32. (A.M. No. 03-1-09-
pre-trial. (A.M. No. 03-1-09-SC, July 13, 2004) SC, July 13, 2004)
NOTE: The dismissal of the complaint for failure to file INTERVENTION
pre-trial brief is discretionary on the part of the trial
court. (Ramos v. Spouses Lavendia, G.R. No. 176706, It is a legal proceeding by which a third person is
October 8, 2008) permitted by the court to become a party by
intervening in a pending action after meeting the
DISTINCTION BETWEEN PRE-TRIAL IN A CIVIL CASE conditions and requirement set by the Rules of Court.
AND PRE-TRIAL IN A CRIMINAL CASE This person who intervenes is one who is not originally
impleaded in the action. (First Philippine Holdings Corp.
Pre-trial in a civil case Pre-trial in a criminal v. Sandiganbayan, G.R. No. 88345, February 1, 1996)
case

11
 REMEDIAL LAW
An intervenor must have legal interest in the matter in
litigation. (Sec. 1, Rule 19)
Intervention is not an independent proceeding
(2000, 2011 Bar)
It is not an independent proceeding but is ancillary and
supplemental to an existing litigation. (Saw v. CA, G.R.
No. 90580, April 8, 1991) Its purpose is to enable a
stranger to an action to become a party to protect his
interest. (Santiago Land Development Corporation v. CA,
G.R. No. 106194, August 7, 1997)
An intervention cannot alter the nature of the action,
and the issues are already joined. (Castro v. David, G.R.
No. L-8508, November 29, 1956)
The modes of discovery are designed to serve as an
additional device aside from pre-trial, to narrow and
clarify the basic issues between the parties, to ascertain
the facts relative to the issues, and to enable the parties
to obtain the fullest possible knowledge of the issues
and facts before civil trials and thus prevent the said
trials to be carried on in the dark. It is intended to
make certain that all issues necessary to the
disposition of a case are properly raised. (Tinio v.
Manzano, G.R. No. 132102, May 19, 1999)
NOTE: As contemplated by the Rules, the device may
be used by all the parties to the case.
Limitations:

Denial of a motion to intervene does not constitute res 1. Those matters which are privileged;
judicata. The remedy of the intervenor is to file a 2. Those under protection order; and
separate action. 3. The modes of discovery must not be conducted in
bad faith.
MODES OF DISCOVERY

Deposition Pending By leave of court after jurisdiction has been obtained over any defendant or over property which is the
Action subject of the action, or without such leave after an answer has been served, the testimony of any person,
(Rule 23)/Deposition de whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination
benne esse or written interrogatories. (2010 Bar)

NOTE: The attendance of witnesses may be compelled by the use of subpoena.

Deposition before A person who desires to perpetuate his own testimony or that of another person regarding any matter
action or pending that may be cognizable in any court of the Philippines, may file a verified petition in the court of the place
appeal of the residence of any expected adverse party. If the court finds that the perpetuation of the testimony is
(Rule 24)/Deposition in proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken.
perpetuam rei (Sec. 7, Rule 24)
memoriam
Written interrogatories Under the same conditions specified in Sec. 1, Rule 23, any party desiring to elicit material and relevant
to adverse parties facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered
(Rule 25) by the party served or, if the party served is a public or private corporation or a partnership or
association, by any officer thereof competent to testify in its behalf.
Admission by adverse At any time after issues have been joined, a party may file and serve upon any other party a written
party request for the admission by the latter of the genuineness of any material and relevant document or of
(Rule 26) the truth of any material and relevant matter of fact.

NOTES:

There is an implied admission unless, 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, the
party to whom the request is directed files and serves upon the party requesting the admission a sworn
statement either denying specifically the matters of which an admission is requested or setting forth in
detail the reasons why he cannot truthfully either admit or deny those matters. (Sec. 2, Rule 26)

The court may allow the party making the admission to withdraw or amend the admission upon such
terms as may be just. (Sec. 4, Rule 26)

Any admission made by a party pursuant to such request is for the purpose of the pending action only
and shall not constitute an admission by him for any other purpose nor may the same be used against
him in any other proceeding. (Sec. 3, Rule 26)

Production or Upon motion of any party showing good cause therefor, the court in which an action is pending may
inspection of documents order any party to produce and permit the inspection and copying of any designated documents or order
or things any party to permit entry upon designated land or other property in his possession or control for the
(Rule 27) purpose of inspecting or photographing the property or any designated relevant object or operation
thereon. (2002, 2009 Bar)
Physical and mental In an action in which the mental or physical condition of a party is in controversy, the court in which the
examination of persons. action is pending may in its discretion order him to submit to a physical or mental examination by a
(Rule 28) physician. (2005 Bar)

NOTES: The modes of discovery are cumulative. They
are neither alternative nor mutually exclusive.
Rules of Discovery also apply to special proceedings.
(Sec. 2 Rule 72)(2008 Bar)
Effect of substitution of parties
It does not affect the right to use depositions
previously taken; and when an action has been
dismissed and another action involving the same
subject is afterward brought between the same parties
or their representatives or successors-in-interest, all
depositions lawfully taken and duly filed in the former
action may be used in the latter as if originally taken
therefor. (Sec. 5, Rule 23)
Objections to evidence
A deposition officer has no authority to rule on the
objection. Evidence objected to shall be taken subject
to the objection, which will be ruled upon by the court
when the deposition is offered in evidence. (Feria
&Noche, 2013)

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Depositions upon written interrogatories under This mode of discovery does not authorize the
Sec. 25, Rule 23 vs. Interrogatories to parties under opposing party or the clerk of court or other
Rule 25 functionaries of the court to distrain the articles or
deprive the person who produced the same of their
Depositions Upon Interrogatories possession, even temporarily. (Tanda v. Aldaya, G.R. No.
Written to Parties (Rule L-13423, November 23, 1959)
Interrogatories to 25)
Parties (Sec. 25, Limitations on the request for production or
Rule 23) inspection of documents or things
Deponent Party or ordinary Party only
witness 1. Should not be privileged;
Procedure With intervention No intervention 2. Should constitute or contain evidence material to
of the officer any matter involved in the action and which are in
authorized by the Served directly his (the party ordered) possession, custody, or
court to take upon the control (Sec. 1, Rule 27);
deposition adverse party. 3. In the petition, the papers and documents to be
(Sec. 1, Rule 25) produced must be sufficiently described.
Not served upon
the adverse party Procedure to avail of the production or inspection
directly. They are of documents or things
instead delivered to
the officer before 1. A motion must be filed by the party seeking the
whom the production or inspection of documents and things
deposition is to be and the motion must show good cause supporting
taken. (Sec. 26, Rule the same; and
23) 2. The order shall specify the time, place and manner
Scope Direct, cross, Only one set of of making the inspection and the taking copies and
redirect, re-cross interrogatories photographs, and may prescribe such terms and
examination conditions as are just.
Interrogato- No fixed time 15 days to (Sec. 1, Rule 27)
ries answer unless
extended or Physical and mental examination of persons
reduced by the
court It may be ordered in an action in which the physical or
Binding Binding to anyone Binding only to mental condition of a party is in controversy. (Sec. 1,
Effect who is present the parties Rule 28)
during the
deposition Effect if the party examined requests and obtains a
report on the results of the examination
Effect of failure to serve written interrogatories
1. He has to furnish the other party a copy of the
GR: A party not served with written interrogatories report of any previous or subsequent examination
may not be compelled by the adverse party to give of the same physical and mental condition (Sec. 3,
testimony in open court, or to give a deposition Rule 28); and
pending appeal. 2. He waives any privilege he may have in that action
or any other involving the same controversy
NOTE: It will be presumed that a party who does not regarding the testimony of every other person
serve written interrogatories on the adverse party who has so examined or may thereafter examine
beforehand will most likely be unable to elicit facts him. (Sec. 4, Rule 28)
useful to its case if it later opts to call the adverse party
to the witness stand as its witness. (Spouses CONSEQUENCES OF REFUSAL TO COMPLY
Afulugencia v. Metropolitan Bank, G.R. No. 185145, WITH MODES OF DISCOVERY
February 05, 2014, Del Castillo, J.)
Refusal to answer any question upon oral
XPN: When allowed by the court and there is good examination
cause shown and the same is necessary to prevent a
failure of justice. (Sec. 6, Rule 25) 1. Order to compel an answer;
2. Contempt;
Production or inspection of documents or things 3. Require payment of reasonable fees incurred by
under Rule 27 vs. Subpoena duces tecum the proponent;
4. Designated facts shall be taken to be established
Production or Subpoena Duces Tecum for the purposes of the action in accordance with
Inspection of the claim of the party obtaining the order;
Documents or Things 5. Dismiss the action or the proceeding;
Essentially a mode of Means of compelling 6. Render a judgment by default against the
discovery production of evidence disobedient party;
7. Refuse to allow the disobedient party to support
Limited to the parties to It may be directed to any or oppose claims or defenses;
the action person whether a party or 8. Strike out all or any part of the pleading of the
not disobedient party;
Issued only upon motion Issued upon an ex 9. Stay further proceedings until order is obeyed; or
with notice to the adverse parteapplication 10. Order the arrest of the refusing party.
party Refusal to produce document or thing for
inspection, copying or photographing
Distraint of articles subject of production or
inspections of documents or things 1. Designated facts shall be taken to be established
for the purposes of the action in accordance with
the claim of the party obtaining the order;

13
 REMEDIAL LAW
2. Refuse to allow the disobedient party to support
or oppose claims or defenses;
3. Strike out all or any part of the pleading of the
disobedient party;
4. Dismiss the action or the proceeding;
5. Stay further proceedings until order is obeyed;
6. Render a judgment by default against the
disobedient party; or
7. Order the arrest of the refusing party.
Refusal to submit to physical or mental
examination
1. Designated facts shall be taken to be established
for the purposes of the action in accordance with
the claim of the party obtaining the order;
2. Prohibit the disobedient party to introduce
evidence of physical and mental conditions;
3. Strike out all or any part of the pleading of the
disobedient party;
4. Dismiss the action or the proceeding;
5. Stay further proceedings until order is obeyed; or
6. Render a judgment by default against the
disobedient party.
Refusal to the request for admission by adverse
party
ground that upon the facts and the law the plaintiff has
shown no right to relief. (Sec. 1, Rule 33)
EFFECT OF DENIAL
The defendant shall have the right to present his
evidence. (Sec. 1, Rule 33) This means that the denial of
the demurrer to evidence does not deprive the
defendant the opportunity to adduce evidence in his
behalf.
NOTE: In election cases, when a party who files a
demurrer to evidence is subsequently denied, he
cannot insist on the right to present evidence because
the provision of the Rules governing demurrer to
evidence does not apply to an election case. (Gementiza
v. COMELEC, G.R. No. 140884, March 6, 2001)
An order denying a demurrer to evidence is not
appealable because it is interlocutory.
It can be subject to petition for certiorari in case of
grave abuse of discretion or an oppressive exercise of
judicial authority. (Katigbak v. Sandiganbayan, G.R. No.
140183, July 10, 2003)

1. Each of the matters of which an admission is EFFECT OF GRANT

requested is deemed admitted (Sec. 5, Rule 26); or
1.
NOTE: The remedy of the party, in this case, is to
file a motion to be relieved of the consequences of
the implied admission. The amendment of the
complaint per se cannot set aside the legal effects
of the request for admission since its materiality
has not been affected by the amendment.
The case shall be dismissed.
NOTE: The plaintiff may file an appeal and if the
appeal is granted (that is, the order of dismissal is
reversed), the defendant loses his right to present
evidence. (Sec. 1, Rule 33; Republic v. Tuvera, G.R.
No. 148246, February 16, 2007)

2. Require payment of reasonable fees incurred by 2. Upon appeal, the appellate court reversing the
the proponent. (Secs. 1-4, Rule 26) order granting the demurrer should not remand
the case to the trial court. Instead, it should render
judgment based on the evidence submitted by the
TRIAL plaintiff. (Radiowealth Finance Corporation v. Del
Rosario, G.R. No. 138739, July 6, 2000)
CONSOLIDATIONOR SEVERANCE OF HEARING OR
TRIAL DEMURRER TO EVIDENCE IN A CIVIL CASEversus
DEMURRER TO EVIDENCE IN A CRIMINAL CASE
Consolidation Severance (1991, 1996, 2001, 2003, 2007 Bar)
Involves several actions Contemplates a single
having a common action having a number of Civil Case Criminal Case
question of law or fact claims, counterclaims, How filed After the plaintiff The court may
which may be jointly cross-claims, third-party has completed the dismiss the action
tried. (Sec. 1, Rule 31) complaints, or issues presentation of his on the ground of
which may be separately evidence, the insufficiency of
tried. (Sec. 2, Rule 31) defendant may evidence
move for dismissal (1) on its own
DELEGATION OF RECEPTION OF EVIDENCE vs. on the ground that initiative after
TRIAL BY COMMISSIONERS upon the facts and giving the
the law the prosecution
plaintiff has shown the
Delegation to Clerk of Trial by Commissioner
Court no right to relief. opportunity to
(Sec. 1, Rule 33) be heard; or
Delegation is made during Commissioner can be
(2) upon
trial appointed even after the
demurrer to
case has become final and
evidence filed
executory
by the accused
with or
Clerk of court must be a Commissioner need not
without leave
lawyer be a lawyer
of court. (Sec.
23, Rule 119)
Clerk of court cannot rule Commissioner can rule on
Leave of Not required With or without
on objections or on the objections or on
court (Sec. 23, Rule 119)
admissibility of evidence admissibility of evidence
If granted The plaintiff may The plaintiff
DEMURRER TO EVIDENCE
appeal from the cannot make an
order of dismissal appeal from the
Dismissal based on insufficiency of evidence
of the case. (Sec. 1, order of dismissal
Rule 33) due to the
After the plaintiff has completed the presentation of his
constitutional
evidence, the defendant may move for dismissal on the
prohibition against

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14 ACADEMICS COMMITTEE 2018
 UST LAW PRE-WEEK 2018
double jeopardy. thereto, as it becomes a judgment that is subject to
If denied The defendant may The defendant may execution in accordance with the Rules of Court.
proceed to adduce adduce his (Cathay Land, Inc. v. Ayala Land, Inc., G.R. No.
his evidence. evidence only if the 210209, August 9, 2017, Del Castillo, J.)
demurrer is filed
with leave of court. 4. Where the parties agree in writing, upon the facts
involved in the litigation, and submit the case for
If there was no judgment on the facts agreed upon, without the
leave of court, introduction of evidence. If, however, there is no
accused can no agreement as to all the facts in the case, trial may
longer present his be held only as to the disputed facts (Sec. 6, Rule
evidence and 30);
submits the case 5. Where the complaint has been dismissed with
for decision based prejudice(Sec. 5, Rule 16; Sec. 3, Rule 17; last. par.;
on the Sec. 5, Rule 7);
prosecution’s 6. Where the civil case falls under the operation of
evidence. (Sec. 23, the Rules on Summary Procedure (Rule 17);
Rule 119) 7. When the case falls under the Rule on Small
Claims.
JUDGMENTS AND FINALS ORDERS
JUDGMENT ON THE PLEADINGS
Doctrine of Immutability of Judgment or Finality of (2012, 2014, 2015, 2016 Bar)
Judgment
A judgment on the pleadings is a judgment on the facts
GR: When a final judgment is executory, it becomes as pleaded, and is based exclusively upon the
immutable and unalterable. It may no longer be allegations appearing in the pleadings of the parties
modified in any respect either by the court which and the accompanying annexes. (Comglasco
rendered it or even by the Supreme Court. The doctrine Corporation/Aquila Glass v. Santos Car Check Center
is founded on considerations of public policy and Corporation G.R. No. 202989, March 25, 2015)
sound practice that, at the risk of occasional errors,
judgments must become final at some definite point in NOTE: A motion for judgment on the pleadings may be
time. filed only by the plaintiff or the claimant. (2016 Bar)

XPN: In order to serve substantial justice considering:
a. matters of life, liberty, honor or property;
b. the existence of special or compelling
circumstances;
c. the merits of the case;
d. a cause not entirely attributable to the fault or
negligence of the party favored by the suspension
of the rules;
e. a lack of any showing that the review sought is
merely frivolous and dilatory; and
f. the other party will not be unjustly prejudiced
thereby. (Pinewood Marine Inc. v. EMCO Plywood
Corporation, G.R. No. 179789, June 17, 2015)
When a final judgment is executory, it becomes
immutable and unalterable. The only recognized
exceptions to the general rule on immutability of final
judgments are the correction of clerical errors, the so
called nunc pro tunc entries which cause no prejudice
to any party, void judgments, and whenever
circumstances transpire after the finality of the
decision rendering its execution unjust and inequitable.
The Court cannot issue a writ of certiorari so as to
allow the presentation of evidence as the same should
have been raised during trial. (Torres, et al. v. Aruego,
G.R. No. 201271, September 20, 2017, Del Castillo, J.)
JUDGMENT WITHOUT TRIAL
Grounds (1999, 2015 Bar)
1. The answer fails to tender an issue because of:
a. General denial of the material allegations of
the complaint;
b. Insufficient denial of the material allegations
of the complaint; or
2. The answer admits material allegations of the
adverse party’s pleadings. (Sec. 1, Rule 34)
NOTE: When it appears, however, that not all the
material allegations of the complaint were
admitted in the answer, because some of them
were either denied or disputed, and the defendant
has set up certain special defenses which, if
proven, would have the effect of nullifying
plaintiff’s main cause of action, judgment on the
pleadings cannot be rendered. (Philippine National
Bank v. Aznar, G.R. No. 17105, May 30, 2011)
Instances when judgment on the pleadings is not
applicable
1. Actions for declaration of nullity of marriage,
annulment of marriage or for legal separation;
2. Unliquidated damages; and
3. Insufficiency of fact – amendment is the remedy

1. Where the pleadings of the parties tender no issue Judgment on the pleadings vs. Judgment by default
at all, a judgment on the pleadings may be
directed by the court (Rule 34); Judgment on the Judgment by Default
2. Where from the pleadings, affidavits, depositions Pleadings
and other papers, there is actually no genuine The defendant answered, The defendant did not file
issue, the court may render a summary but did not tender an an answer.
judgment(Rule 35); issue or admitted the
3. Where the parties have entered into a material allegations in the
compromise or an amicable settlement either complaint.
during the pre-trial or while the trial is in progress Evidence is not received Evidence is received.
(Rule 18; Art. 2028, NCC); as the same is based on
the pleadings alone.
NOTE: A compromise agreement has the effect of Decision is based on the Decision is based on the
res judicata between the parties. Once a allegations in the evidence presented.
compromise agreement is approved by a final pleadings.
order of the court, it transcends its identity as a
mere contract binding only upon the parties

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 REMEDIAL LAW
Generally available only Available to plaintiff.
to the plaintiff, unless the
defendant presents a
counterclaim.
NOTE: When the plaintiff
moves for judgment on
the pleadings and
defendant interposes no
objection, the latter is
deemed to have admitted
the truth of the
allegations of the
complaint, so that there is
no longer any necessity
for the plaintiff to submit
evidence of his claims.
(Phil. Advertising
Counselors, Inc. v. Revilla,
G.R. No. L-31869, August 8,
1973)
SUMMARY JUDGMENT
It is proper where, upon motion filed after the issues
had been joined and on the basis of the pleadings and
papers filed, the court finds that there is no genuine
issue as to any material fact except as to the amount of
damages. (Ley Construction & Dev. Corp. v. Union Bank
of the Phil., G.R. No. 133801, June 27, 2000)
Summary judgments are sanctioned by the Rules of
Court as a device to simplify and expedite the
resolution of cases when, as shown by pleadings,
affidavits, depositions or admissions on the records,
there are no genuine issues which would entail an
expensive, lengthy and protracted trial. (Jose Feliciano
Loy, Jr., et al. v. San Miguel Corporation Employees
Union-Philippine Transport and General Workers
Organization, et al., G.R. No. 164886, November 24, 2009,
Del Castillo, J.)
NOTE: A claimant may, at any time after the pleading in
answer thereto has been served, and the defendant
may, at any time, move with supporting affidavits,
depositions or admissions for a summary judgment in
his favor upon all or any part thereof. (Secs. 1 and 2,
Rule 35)
A request for admission may even complement a
summary judgment in that the request for admission
may be used as basis for filing a summary judgment.
(Estate of Ferdinand E. Marcos v. Republic of the
Philippines, G.R. No. 213027, January 18, 2017)
Requisites of summary judgment (2015 Bar)
1. The motion shall be served at least 10 days before
the time specified for the hearing. The adverse
party may serve opposing affidavits, depositions,
or admissions at least 3 days before the hearing;
NOTE: The hearing contemplated is for the
purpose of determining whether the issues are
genuine or not, and not to receive evidence on the
issues set up in the pleadings. The matter may be
resolved, and usually is, on the basis of affidavits,
depositions, admissions. (Galicia v. Polo, G.R. No. L-
49668, Nov. 14, 1989; CarconDevt. Corp. v. CA, G.R.
No. 88218, December 17, 1989)
2. Except for the amount of damages, there must be
no genuine issue as to any material fact;
NOTE: There is genuine issue when an issue of
fact is presented which requires presentation of
evidence as distinguished from a sham, fictitious,
16
contrived or false claim. (Villuga v. Kelly Hardware
and Construction Supply Inc., G.R. No. 176570, July
18, 2012)
3. The party presenting the motion for summary
judgment must be entitled to a judgment as a
matter of law.
Partial Summary Judgment (2004 Bar)
A partial summary judgment envisioned by the Rules is
an interlocutory order that was never meant to be
treated separately from the main case. It will not ripen
into a final and executory judgment, despite failure to
file a certiorari petition to challenge the judgment. The
remedy against a partial summary judgment is an
appeal to be taken by the parties once the court a quo
has completely resolved all the issues involved in the
present case in a final judgment. (Philippine Business
Bank v. Chua, G.R. No. 178899, November 15, 2010)
RENDITION OF JUDGMENTS AND FINAL ORDERS
Rendition of judgment is the filing of the same with the
clerk of court. Even if the judgment has already been
put in writing and signed, it is still subject to
amendment if it has not yet been filed with the clerk of
court. Hence, before its filing, it does not yet constitute
the real judgment of the court. (Ago v. CA, G.R. No. L-
17898, October 31, 1962)
Requisites of a valid judgment
1. The court or tribunal must be clothed with
authority to hear and determine the matter before
it;
2. The court must have jurisdiction over the parties
and the subject matter;
3. The parties must have been given an opportunity
to adduce evidence in their behalf;
4. The evidence must have been considered by the
tribunal in deciding the case;
5. The judgment must be in writing, personally and
directly prepared by the judge; and
6. The judgment must state clearly the facts and the
law on which it is based, signed by the judge and
filed with the clerk of court. (Sec. 1, Rule 36)
NOTE: These requirements refer to decisions and final
orders on the merits not to those resolving incidental
matters. (Pablo-Gualberto v. Gualberto, G.R. No. 154994,
June 28, 2005)
Rendition of a judgment based on issues not raised
GR: A judgment must conform to the pleading.
Therefore, a judgment going outside the issues and
purporting to adjudicate something on which the
parties were not heard is invalid. Where a court enters
a judgment or awards relief beyond the prayer of the
complaint or the scope of its allegations, the excessive
relief is not merely irregular but is void for want of
jurisdiction, and is open to collateral attack.
XPN: Such issues were tried with the express or
implied consent of the parties.
Promulgation
It is the process by which a decision is published,
officially announced, made known to the public, or
delivered to the clerk of court for filing, coupled with
notice to the parties or their counsel. A decision
becomes binding only after it is validly promulgated.
Several judgments vs. Separate judgments
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ACADEMICS COMMITTEE 2018
 UST LAW PRE-WEEK 2018
Several Judgment Separate Judgment This is filed within the period to file an appeal based on
Proper where the liability Proper when more than the ground of extrinsic fraud, accident, mistake,
of each party is clearly one claim for relief is excusable negligence or newly-discovered evidence.
separable and distinct presented in an action (FAMEN)
from his co-parties such and a determination as to
that the claims against the issues material to the Requisites of newly discovered evidence (Berry
each of them could have claim has been made. The Rule)
been the subject of a action shall proceed as to
separate suit, and the the remaining claims. 1. The evidence was discovered after trial;
judgment for or against 2. Such evidence could not have been discovered and
one of them will not produced at the trial with reasonable diligence;
necessarily affect the and
other. 3. Such evidence is material, not merely cumulative,
corroborative or impeaching, and is of such weight
NOTE: A several that if admitted would probably change the
judgment is not proper in judgment. (CIR v. A. Soriano Corporation, G.R. No.
actions against solidary 113703, January 31, 1997)
debtors.
Denial of the MNT; effect

JUDGMENT ON THE PLEADINGS versus If the motion is denied, the remedy is to appeal from
SUMMARY JUDGMENTS the judgment or final order, and not to appeal the order
(2016 Bar) denying the motion for new trial, because the order is
not appealable. (Sec. 9, Rule 37)
Judgment on the Summary Judgment
Pleadings (Rule 35) Grant of the MNT; effect
(Rule 34)
Based solely on the Based on the pleadings, If the motion for new trial is granted, the original
pleadings depositions, admissions judgment is vacated and the action shall stand for trial
and affidavits de novo. But the recorded evidence taken upon the
Generally available only Available to both plaintiff former trial, so far as the same is material and
to the plaintiff, unless the and defendant competent to establish the issues, shall be used at the
defendant presents a new trial without retaking the same. (Sec. 6, Rule 37)
counterclaim
Second Motion for New Trial
The answer fails to tender There is no genuine issue
an issue or there is an between the parties, i.e. A second motion for new trial, based on a ground not
admission of material there may be issues but existing or available when the first motion was made,
allegations. these are irrelevant. may be filed within the time provided in Section 5, Rule
37 excluding the time during which the first motion
3-day notice for motion 10-day notice required had been pending.
required
Motion for reconsideration (MR)
On the merits May be interlocutory (i.e.
partial summary This is filed within the period for appeal based on any
judgments) or on the of the following grounds:
merits a. damages are excessive;
b. evidence is insufficient; or
NOTE: Simply stated, what distinguishes a judgment on c. the decision or order is contrary to law.
(Sec. 1, Rule 37)
the pleadings from a summary judgment is the
presence of issues in the Answer to the Complaint.
(Iloilo Jar Corporation v. Comglasco Corporation, G.R. The motion shall specifically point out the portion of
the judgment not supported by evidence or which are
No. 219509, January 18, 2017)In a proper case for
contrary to law. Otherwise, it will be considered as a
judgment on the pleadings, there is no ostensible issue
at all because of the failure of the defending party’s pro forma motion and will not have the effect of
suspending or interrupting the period to appeal.
answer to raise an issue. On the other hand, in the case
of a summary judgment, issues apparently exist, i.e.
Denial of the MR; effect
facts are asserted in the complaint regarding which
there is as yet no admission, disavowal or qualification;
If the motion is denied, the remedy is to appeal from
or specific denials or affirmative defenses are in truth
set out in the answer, but the issues thus arising from the judgment or final order and not to appeal the order
denying the motion because it is not appealable.
the pleadings are sham, fictitious or not genuine, as
shown by affidavits, depositions, or admissions. (Adolfo
v. Adolfo, G.R. No. 201427, March 18, 2015, Del Castillo, Grant of the MR; effect
J.)
If the motion is granted, the court may amend the
POST-JUDGMENT REMEDIES judgement or final order, accordingly. The amended
judgment is in the nature of a new judgment which
The following are remedies before a judgment or final supersedes the original judgment, and is not a mere
supplemental decision. (Esquivel v. Alegre, G.R. No.
order becomes final and executor:
79425, April 17, 1989)
1. Motion for new trial;
2. Motion for reconsideration; or Second Motion for Reconsideration
3. Appeal
GR: No party shall be allowed a second motion for
reconsideration of a judgment or final order. (Sec. 5,
MOTION FOR NEW TRIAL OR RECONSIDERATION
Rule 37)
Motion for new trial (MNT)
XPNs:

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 REMEDIAL LAW
1. Motion for reconsideration of an interlocutory
order, unless it is a mere reiteration of arguments
already passed upon by the court(San Juan, Jr. v.
Cruz, G.R. No. 167321, July 31, 2006);
2. Where a tribunal renders a decision substantially
reversing itself on a matter, MR seeking
reconsideration of this reversal, for the first time,
is not prohibited (Cristobal v. Philippine Airlines,
Inc., G.R. No. 201622, October 4, 2017); and
3. If filed with the Supreme Court, and only after
meeting the following requirements:
a. with express leave;
b. for extraordinarily persuasive reasons;
c. by the vote of at least 2/3 of the actual
membership of the SC en banc; and
d. before the ruling sought to be reconsidered
becomes final by operation of the law or by
the Court’s declaration. (League of Cities of the
Philippines v. COMELEC, G.R. No. 176951, June
28, 2011)
Fresh Period Rule or Neypes Rule
The Court deems it practical to allow a fresh period of
15 days within which to file the notice of appeal,
counted from the receipt of the order dismissing a
motion for new trial or motion for reconsideration to
standardize the appeal periods provided in the Rules
and to afford litigants fair opportunity to appeal their
cases. (Neypes v. CA, G.R. No. 141524, September 14,
2005)
It applies to:
1. Rule 40 – MTC to RTC
2. Rule 41 – Appeals from RTC
3. Rule 42 – Petition for Review from RTC to CA
4. Rule 43 – Appeals from quasi-judicial agencies to
CA
5. Rule 45 – Appeals by certiorari to the SC
Applicability of the NeypesRule to administrative
proceedings
The Neypes Rule applies to Rule 40, 41, 42, 43, and 45,
which are judicial proceedings under the Rules of Civil
Procedure. The fresh period rule does not apply to
administrative appeals. (San Lazaro Ruiz Builders and
Developers Group Inc., v. Ma. Cristina F. Bayong, G.R No.
194702, April 20, 2015)
APPEALS
Matters not appealable
1. Order denying a petition for relief or any similar
motion seeking relief from judgment;
2. Interlocutory order;
3. Order disallowing or dismissing an appeal;
4. Order denying a motion to set aside a judgment by
consent, confession or compromise on the ground
of fraud, mistake or duress, or any other ground
vitiating consent;
5. Order of execution;
6. Judgment or final order for or against one or more
of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending, unless
the court allows an appeal therefrom;
7. Order dismissing an action without prejudice, e.g.
motion to dismiss on improper venue (Sec. 1, Rule
41, as amended by A.M. No. 07-7-12-SC); and
8. Judgment based on compromise.
In those instances where the judgment or final order is
not appealable, the aggrieved party may file the
appropriate special civil action under Rule 65. (Sec. 1,
Rule 41)
18
Final Judgment Rule
An appeal may be taken from a judgment or final order
that completely disposes of the case, or of a particular
matter therein when declared by these Rules to be
appealable. (Sec. 1, Rule 41)
Modes of appeal
ORDINARY APPEAL
1. Ordinary appeal under Rule 40 – from MTC to RTC
NOTE: Questions of fact or mixed questions of fact
and law
2. Ordinary Appeal under Rule 41 – from RTC in the
exercise of its original jurisdiction to CA
NOTE: Questions of fact or of law or mixed
questions of fact and law that have been raised in
the court below and are within the issues framed
by the parties
PETITION FOR REVIEW
1. Petition for review under Rule 42 – RTC in its
appellate jurisdiction to CA;
NOTE: Questions of fact, of law, or mixed
questions of fact and law
2. Petition for review under Rule 43 – Quasi-judicial
bodies to CA
NOTE: Questions of fact, of law, or mixed
questions of fact and law
PETITION FOR REVIEW ON CERTIORARI
Appeal by certiorari under Rule 45
a. RTC to SC (Sec. 2(c), Rule 41) – questions of law
b. CA to SC (Sec. 1, Rule 45) - questions of law
c. Sandiganbayan to SC (Sec. 1, Rule 45) - questions of
law
d. CTA en banc to SC (Sec. 11, RA 9282; Sec. 1 Rule 45,
as amended by AM No. 07- 7-12- SC) – questions of
law
e. Appeals from a judgment or final order in a
petition for a writ of amparo to the SC (AM No. 07-
9-12- SC) – questions of fact and law
f. Appeals from a judgment or final order in a
petition for a writ of habeas data (AM No. 08-1-16-
SC) - questions of fact and law
g. Appeals from judgment or final order in a petition
for writ of kalikasan (AM No. 09-6-8-SC) - questions
of fact and law
Period of appeal
VIA NOTICE OF APPEAL
A party-litigant may either file his notice of appeal with
the court that rendered the judgment within 15 days
from receipt of court’s decision, or file it within 15 days
from receipt of the final order denying his motion for
new trial or motion for reconsideration.
NOTE: Appeal in habeas corpus cases shall be taken
within 48 hours from receipt of the court’s decision or
final order denying motion for reconsideration or new
trial.
VIA RECORD ON APPEAL
The period is 30 days counted from receipt of court’s
decision or the final order denying his motion for new
trial or motion for reconsideration.
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ACADEMICS COMMITTEE 2018
 UST LAW PRE-WEEK 2018
Perfection of appeal
Appeal by notice of appeal of a party is deemed
perfected upon the filing of the notice of appeal within
the reglementary period. Appeal by record on appeal is
deemed perfected upon the approval of the record on
appeal filed in due time.
GR: Judgment is not vacated by appeal, but is merely
stayed and may be affirmed, modified or reversed or
findings of facts or conclusions of law may be adopted
by reference.
XPN: Rules on Summary Procedureincluding forcible
entry and unlawful detainer cases which shall be
immediately executory without prejudice to a further
appeal that maybe taken therefrom. Also, under Rule
43, an appeal from quasi-judicial bodies shall not stay
the judgment unless the CA directs otherwise.
Effect of non-payment of appellate docket fees
Payment of docket fee is jurisdictional. Without such
payment, the appellate court does not acquire
jurisdiction over the subject matter of the action and
the decision sought to be appealed from becomes final
and executory. (Regalado v. Go, G.R. No. 167988,
February 6, 2007)However, the failure to pay appellate
court docket fee within the reglementary period allows
only discretionary dismissal, not automatic dismissal,
of the appeal. Such power should be used in the
exercise of the court’s sound discretion. (Rep. v. Sps.
Luriz, G.R. No. 158992, January 26, 2007)
Residual jurisdiction of the court
It refers to the authority of the trial court to issue
orders for the protection and preservation of the rights
of the parties even if the trial court loses jurisdiction
over the case or the subject matter involved in the
appeal. Provided, that this is done by the court prior to
the transmittal of the original records or record on
appeal. (Fernandez v. CA, G.R. No. 131094, May 16, 2005)
Before the trial court can be said to have residual
jurisdiction over a case, a trial on the merits must
have been conducted, the court rendered judgment,
and the aggrieved party appealed therefrom. Hence,
the RTC could not have reached the residual
jurisdiction stage if the case was dismissed due to
improper venue. (DBP v. Carpio, et al., G.R. No. 195450,
February 1, 2017)
The “Harmless Error Rule” in Appellate Decisions
The court at every stage of the proceeding must
disregard any error or defect which does not affect the
substantial rights of the parties. (Sec. 6, Rule 51)

Petition for Review on Certiorari under Rule 45, Review of Judgments, Final Orders or Resolutions Rule 64 and
Certiorari under Rule 65

Petition for Review on
Certiorari
(Rule 45)
Mode of appeal which seeks to
review final judgments and orders.
(Sec. 2, Rule 41)
It shall be filed within 15 days
from notice of judgment or final
order appealed from.
Review of Judgments, Final Orders or
Resolutions (Rule 64)
Independent special civil action; appellate
jurisdiction
30 days from the notice of the judgment or
final order or resolution sought to be
reviewed.
Non-extendible period
Special Civil Action for Certiorari
(Rule 65)
Special civil action; an original
action. It may be directed against
an interlocutory order or matters
where no appeal may be taken
from. (Sec. 1, Rule 41)
It shall be filed not later than 60
days from notice of judgment,
order or resolution sought to be
assailed or from denial of an MR or
MNT.

If MR is denied, the petition must be filed It may be extended for another 60

Stays the judgment sought to be
appealed
The parties are the original parties
with the appealing party as the
petitioner and the adverse party as
respondent without impleading
the lower court or its judge. (Sec.
4[a], Rule 45)
Filed with the SC
within the remaining period, but which days.
shall not be less than 5 days reckoned from
notice of denial of MR.
Does not stay the judgment or order subject Does not stay the judgment or
of the petition unless enjoined or order subject of the petition unless
restrained enjoined or restrained
The petitioner and private respondent are The tribunal, board, officer
the original parties to the action. exercising judicial or quasi-judicial
functions is impleaded as
The COA and COMELEC shall be impleaded respondent. (Sec. 5 Rule 65)
as public respondents.
Filed with the SC Filed with the RTC (Sec. 21, BP
129);

With the CA (Sec. 9, BP 129); or

With the SC. (Sec. 5[1], Article VIII,

1987 Constitution)

Relief from judgments or final orders and The order of denial is not appealable; the remedy is
resolutions appropriate special civil action under Rule 65.

A verified petition for relief, based on FAMEN, is filed
within 60 days from knowledge of the judgment and
within 6 months from entry of judgment. (Double
Period Rule)
NOTE: A 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. (Sec. 9, Rule 38; Francisco v. Puno, G.R. No. L-
55694, October 23, 1981)

19
 REMEDIAL LAW
ANNULMENT OF JUDGMENTS Insurance Corp, now MAA General Insurance Inc.,
OR FINAL ORDERS AND RESOLUTIONS G.R. No. 167976, January 20, 2010)

A petition for annulment of judgment is a remedy in Remedy if a motion for execution is denied
equity so exceptional in nature that it may be availed of
only when: The issuance of writ of execution is a ministerial duty
of the court under Sec. 1 of Rule 39, compellable by a
1. Other remedies are wanting; and writ of mandamus. (Greater Metropolitan Manila Solid
2. If the judgment, final order or final resolution Waste Management Committee v. Jancom
sought to be annulled was rendered by a court Environmental Corporation, G.R. No. 163663, June 30,
lacking jurisdiction, or through extrinsic fraud or 2006)
denial of due process. (Spouses Teano vs.
Municipality of Navotas, G.R. No. 205814, February Discretionary execution
15, 2016)
1. There must be a motion filed by the prevailing
Grounds for annulment of judgment (2008 Bar) party with notice to the adverse party;
2. There must be a hearing of the motion for
1. Lack of jurisdiction over the subject matter and discretionary execution;
over the person – This may be barred by estoppels 3. There must be good reasons to justify the
by laches, which is that: discretionary execution; and
a. failure to do something which should be done 4. The good reasons must be stated in a special
or to claim or enforce a right at a proper time; order. (Sec. 2, Rule 39)
or
b. neglect to do something which one should do Where to file an application for discretionary
or seek or enforce a right at a proper time; execution

2. Denial of due process(Alaban v. CA, G.R. No. 156021, 1. The motion for discretionary execution shall be
September 23, 2005); and filed with the trial court:
3. Extrinsic fraud or collateral fraud – However, this a. While it has jurisdiction over the case; and
could not be a valid ground if it was availed of, or b. While it is in possession of either the original
could have been availed of, in a motion for new record or the record on appeal; or
trial or petition for relief.
2. After the trial court has lost jurisdiction, the
Judgements, Final Judgments, Final motion for execution pending appeal may be filed
Orders or Resolutions of Orders or Resolutions in the appellate court. (Bangkok Republic Company
RTC of MTC Limited v. Lee, G.R. No. 159806, January 20, 2006)

As to the court that has exclusive original Execution “Pending Appeal”

jurisdiction
CA (B.P. 129, Sec. 9, par. 2) RTC (B.P. 129, Sec. 19, Discretionary execution is allowed only when the
par. 6) period to appeal has commenced but before the trial
As to discretion to dismiss the petition outright court loses jurisdiction over the case. The period to
The CA may dismiss the The RTC has no appeal where a motion for reconsideration has been
case outright which is discretion. Rule 47, Sec. filed commences only upon the receipt of the order
discretionary.(Rule 47, Sec. 10 does not make Sec. 5 disposing of the MR. The pendency of a MR, therefore,
5) of the same rule prevents the running of the period to appeal. Thus,
applicable to petitons for where there is pending MR, an order of execution
annulment before the pending appeal is improper and premature. (JP Latex
RTC. Technology, Inc. v. Ballons Granger Balloons, Inc., et al.,
G.R. No. 177121, March 16, 2009)
EXECUTION, SATISFACTION AND EFFECT OF
JUDGMENTS Remedy when the judgment is reversed or
annulled
Execution is a process provided by law for the
enforcement of a final judgment. It is the fruit and end The trial court may, on motion, issue such orders of
of suit. (Cagayan de Oro Coliseum v. CA, G.R. No. 129713, restitution or reparation of damages as equity and
Dec. 15, 1999; Ayo v. Violago-Isani, A.M. No. RTJ-99- justice may warrant under the circumstances. (Sec. 5,
1445, June 21, 1999) Rule 39)

A writ of execution must conform substantially to
every essential particular of the judgment
promulgated. An execution not in harmony with the
judgment is bereft of validity. (Stronghold Insurance vs.
Pamana Island Resort, G.R. No. 174838, June 1, 2016)
WHEN EXECUTION SHALL ISSUE
Execution as a matter of right
1. The judgment has become final and executory
(Sec. 1, Rule 39);
2. Judgment debtor has renounced or waived his
right to appeal;
3. The period for appeal has lapsed without an
appeal having been filed; or
4. Having been filed, the appeal has been resolved
and the records of the case have been returned to
the court of origin. (Florendo v. Paramount
NOTE: In Philippines Nails and Wire Corporation v.
Malayan Insurance Company, Inc. (G.R. No. 143933,
February 14, 2003), the SC held that one party may
validly question a decision in a regular appeal and at
the same time assail the execution pending appeal via
certiorari without violating the rule against forum
shopping. This is because the merits of the case will not
be addressed in the Petition dealing with the execution
and vice versa. The resolution or a favorable judgment
in either will not amount to res judicata in the
subsequent proceedings between the same parties.
(2014 Bar)
Staying the discretionary execution
It may be stayed upon approval by the proper court of
a sufficient supersedeas bond filed by the party
against whom execution is directed, conditioned upon
the performance of the judgment or order allowed to
be executed in case it shall be finally sustained in whole

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20 ACADEMICS COMMITTEE 2018
 UST LAW PRE-WEEK 2018
or in part. The bond thus given may be proceeded (Rule 57) of the action or money; and
against on motion with notice to the surety. (Sec. 3, at any time 2. Recovery of
Rule 39) before entry of possession of
property
judgment
Judgments not stayed by appeal unjustly or
fraudulently
GR: Judgment is stayed by appeal. taken,
detained or
XPNS: Instances when judgment is immediately converted
executory (IRASO)

1. Injunction; Preliminary At any stage of Action for

2. Receivership; Injunction the action prior injunction,
3. Accounting;
(Rule 58) to the judgment whether or not
4. Support; and
5. Such other judgments declared to be immediately or final order coupled with
executory unless otherwise ordered by the trial other prayers
court (e.g. Rule 70, Sec. 19). Receivership At any stage of 1. Receivership
(Rule 59) the proceedings action;
EXAMINATION OF JUDGMENT OBLIGOR and even 2. Real action
WHEN JUDGMENT IS UNSATISFIED involving title
afterjudgment
to or
Effect when the judgment was returned unsatisfied has become possession of
final and realty;
1. The judgment creditor may cause examination of executory as 3. Foreclosure of
the judgment debtor as to his property and income means of mortgage; and
(Sec. 36, Rule 39); and enforcing 4. Dissolution of
2. The judgment creditor may cause examination of judgment corporation
the debtors of the judgment debtor as to any debt
owed by him or to any property of the judgment
debtor in his possession.(Sec. 37, Rule 39) Replevin At the 1. Recovery of
(Rule 60) commencement possession of
ENFORCEMENT AND EFFECT OF personal
of the action or
FOREIGN JUDGMENTS OR FINAL ORDERS property; and
at any time
2. Recovery of
Effect of a foreign order before answer
personal
property
1. Against a specific thing – conclusive upon title to subject of
the thing. chattel
2. Against a person – presumptive evidence of a right mortgage as a
as between the parties and their successors-in- preliminary
interest by a subsequent title. step to
(Sec. 48, Rule 39) extrajudicial
foreclosure
NOTE: In both instances, the judgment may be repelled
by evidence of want of jurisdiction, want of notice to
the party, collusion, fraud, or clear mistake of law or Support At the 1. Support,
fact. whether as
PendenteLite commencement
(Rule 61) of the prior the main case
Enforcement of a judgment of a foreign court or as one of
action or
several causes
Judgment of foreign courts may only be enforced in the proceeding or at of action; and
Philippines through an action validly heard in the RTC. any time prior 2. Criminal
Thus, it is actually the judgment of the Philippine court to judgment or actions where
enforcing the foreign judgment that shall be executed. final order the civil
liability
PROVISIONAL REMEDIES includes
support of the
GENERAL MATTERS offspring as a
consequence
Provisional remedies under the Rules of of the crime,
Court(SARIR) i.e. rape,
seduction
1. Preliminary Attachment (Rule 57);
2. Preliminary Injunction (Rule 58); PRELIMINARY ATTACHMENT
3. Receivership (Rule 59);
4. Replevin (Rule 60); and Kinds of attachment
5. Support (Rule 61).
Preliminary It is one issued at the
When to apply and in what principal actions Attachment commencement of the action or at
available any time before entry of the
judgment, as security for the
Provisional When to Apply In What satisfaction of any judgment that
Remedy Principal may be recovered in the cases
Action/s provided for by the Rules. The
court takes custody of the property
Preliminary At the 1. Recovery of
of the party against whom the
Attachment commencement liquidated
attachment is directed.
sum of

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 REMEDIAL LAW
Levy on It is the act of taking possession
execution and control by the sheriff or
proper officer of sufficient
property of the losing party to
satisfy the decision, order, or
award. A sale not preceded by a
valid levy is void and the
purchaser acquires no title.
Garnishment It is the levy of money, goods, or
chattels, and/or an interest
thereon, belonging or owing to a
losing party in the possession or
control of a third party.
The proceeding by garnishment is
a specie of attachment for reaching
credits belonging to the judgment
debtor and owing to him from a
stranger to the litigation. By means
of the citation the stranger
becomes a forced intervenor; and
the court, having acquired
jurisdiction over him by means of
the citation, requires him to pay
his debt, not to his former creditor,
but to the new creditor, who is the
creditor in the main litigation.
(Domingo Bautista v. Jose Ma.
Barredo, G.R. No. L-20653, April 30,
1965)
NOTE: Property of an incompetent under guardianship
in custodia legiscan be attached provided that, a copy of
the writ of attachment shall be filed with the proper
court and the notice of the attachment shall be served
upon the custodian of such property.
REQUISITES
1. An affidavit executed by the applicant, or of some
other person who personally knows the facts.
The contents of the affidavit are:
a. A sufficient cause of action exists;
b. The case must be any of those where
preliminary attachment is proper as stated in
Sec. 1, Rule 57;
c. No sufficient security for the claim sought to
be enforced; and
d. The amount due to the applicant, or the value
of the property the possession of which he is
entitled to recover, is as much as the sum for
which the order is granted above all legal
counterclaims. (Sec. 3, Rule 57)
2. Attachment bond – a bond executed in favor of the
adverse party in an amount to be fixed by the
judge, not exceeding the plaintiff’s claim,
conditioned that the latter will pay all the costs
which may be adjudged to the adverse party and
all damages which he may sustain by reason of the
attachment, if the court shall finally adjudge that
the applicant was not entitled thereto. (Sec. 4, Rule
57) (2008 Bar)
NOTE: Failure to allege matters required under Sec. 3,
Rule 57 renders the writ totally defective as the judge
issuing the writ acts in excess of jurisdiction. (K.O Glass
Construction Co., Inc. v. Valenzuela, et al., G.R. No. L-
48756, September 11, 1982; Regalado, 2012)
ISSUANCE OF ORDER OF ATTACHMENT
The writ of preliminary attachment may be issued:
1. Ex parte and even before summons is served upon
the defendant.
22
NOTE: An ex parte issuance of the writ is intended
to pre-empt any possible disposition of property
by the adverse property to the detriment of the
attaching creditor and thus defeat the very
purpose of attachment. (Mindanao Savings & Loan
Association, Inc. v. CA, G.R. No. 84481, April 18,
1989) (2001 Bar)
2. Upon motion and notice of hearing, by the court in
which the action is pending and may even be
issued by the CA or the SC (Sec. 2, Rule 57);
NOTE: A hearing on a motion or application for
preliminary attachment is not generally necessary
unless otherwise directed by the trial court.
(Toledo v. Burgos, G.R. No. L-75466, December 19,
1988)
WHEN PROPERTY ATTACHED IS CLAIMED
BY THIRD PERSONS
(TII)
1. A terceria or third-party claim - The third person
whose property was levied on must make an
affidavit of his title thereto, or right to the
possession thereof, stating the grounds of such
right and title and serves such affidavit upon the
sheriff while the latter has possession of the
attached property and a copy thereof upon the
attaching party;
GR: The sheriff is not bound to keep the property.
XPN: The sheriff is bound to keep the property
when the attaching party, on demand of the
sheriff, files a bond approved by the court to
indemnify the third-party claimant in a sum not
less than the value of the property levied upon.
2. Independent action to recover his property; or
3. Motion for intervention – available only before
judgment is rendered. (Ong v. Tating, G.R. No. L-
61042, April 15, 1987)
NOTE: No claim for damages for the taking or keeping
the property may be enforced against the bond unless
the action therefor is filed within 120 days from the
filing of the bond. (Sec. 7, Rule 60)
When property is wrongfully attached
Where there is wrongful attachment, the defendant
may recover actual damages even without proof that
the plaintiff acted in bad faith in obtaining the
attachment. However, if it is alleged and established
that the attachment was not merely wrongful but also
malicious, the defendant may recover moral damages
and exemplary damages as well. (Spouses Yu v. Ngo Yet
Te, G.R. No. 155868, February 6, 2007)
Application for damages
The application for damages must be filed:
1. Before the trial;
2. Before appeal is perfected; or
3. Before the judgment becomes executory.
If the case is on appeal and the judgment of the
appellate court is favorable to the party against whom
the attachment was issued, he must claim damages
sustained during the pendency of the appeal by filing
an application with the appellate court, with due
notice to the attaching party and his surety or sureties,
before the judgment of the appellate court becomes
executory. (Sec. 20, Rule 57)
DISCHARGE AND THE COUNTER-BOND
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Once the preliminary attachment is issued, the same relief nor did the allegations in his pleading sufficiently
rule provides for two ways by which it can be dissolved make out a case for a TRO.
or discharged.
1. The writ of preliminary attachment may be TRO vs. Status Quo Order
discharged upon security given, i.e. a counter-
bond; or TRO Status Quo Order
2. It must be shown to have been irregularly or Summary hearing Issued motu proprio on
improperly issued. (Magaling v. Ong, G.R. No. equitable considerations
173333, August 13, 2008)
Prevents the doing of an More in the nature of a
PRELIMINARY INJUNCTION act cease and desist order
since it neither directs the
DEFINITIONS AND DIFFERENCES; doing or undoing of acts
PRELIMINARY INJUNCTION AND
TEMPORARY RESTRAINING ORDER (TRO) Requires the posting of a Does not require the
bond, unless exempted by posting of a bond
Preliminary Injunction vs. TRO court

Preliminary Injunction Temporary Restraining REQUISITES

Effective during the
pendency of the action
unless earlier dissolved
NOTE: The trial court, the
Court of Appeals, the
Sandiganbayan or the
Court of Tax Appeals that
issued a writ of
preliminary injunction
against a lower court,
board, officer, or quasi-
judicial agency shall
decide the main case or
petition within 6 months
from the issuance of the
writ. (Sec. 5, Rule 58, as
amended by A.M. No. 07-7-
12-SC)
Restrains or requires the
performance of particular
acts
Notice and hearing
always required. (Sec. 5,
Rule 58)
Can be issued to compel
the performance of an act
Status quo order
It is resorted to when the projected proceedings in the
case made the conservation of the status quo desirable
or essential but the affected party neither sought such
Order
This is non-extendible
(Sec. 5, Rule 58):
1. If issued by RTC/MTC
– 20 days from notice
to the person
restrained;
2. If issued by CA – 60
days from service on
the party or person
sought to be enjoined;
or
3. If issued by SC – until
lifted.
4. RTC, CA, SB or CTA, -
issued a writ of
preliminary
injunction against a
lower court, board,
officer, or quasi-
judicial agency shall
decide the main case
or petition within six
(6) months from the
issuance of the writ.
NOTE: Prohibition
against the renewal
applies only if the same is
sought under and by
reason of the same
ground for which it was
originally issued.
(Regalado, 2008)
Maintain status quo ante
GR: Notice and hearing
required
XPN: To prevent
urgent/irreparable injury,
TRO may be issued by an
executive judge or
presiding judge for 72
hours and a summary
hearing be subsequently
conducted within such
period.
Cannot be issued to
compel the performance
of an act
1. The applicant must have a clear and unmistakable
right, that is a right in esse;
2. There is a material and substantial invasion of
such right;
3. There is an urgent need for the writ to prevent
irreparable injury to the applicant; and
4. No other ordinary, speedy, and adequate remedy
exists to prevent the infliction of irreparable
injury.(Los Baos Rural Bank, Inc. v Africa, G.R. No.
143994, July 11, 2002, cited in PNB v. Castalloy
Technology Corporation, G.R. No. 178367, March 19,
2012)
NOTE: The application must be verified, and applicant
must put up a bond, unless exempted.
KINDS OF INJUNCTION
Preliminary Prohibitory Preliminary Mandatory
Injunction Injunction
Requires a person to Requires a person to
refrain from a particular perform a particular act
act
The act has not yet been The act has already been
performed. performed and this act
has violated the rights of
another. (Riano, 2012)
Preliminary Injunction vs.Main Action for
Injunction
Preliminary Injunction Main Action for
(Ancillary Remedy) Injunction
Provisional remedy; Independent/Primary
It is not a cause of action Action
itself but merely an
adjunct to a main suit.
Seeks to preserve the Perpetually restraining or
status quo until the merits commanding the
can be heard performance of an act
after trial
NOTE: Respondent’s failure to conclusively establish
his claimed right over the subject land which has not
been declared alienable and disposable when he
started to occupy the same does not entitle him to the
issuance of a final injunction. Two requisites must
concur for injunction to issue: (1) there must be a right
to be protected and (2) the acts against which the
injunction is to be directed are violative of said right.
The land must be considered as still inalienable public
domain and therefore not a proper subject of
possession. Respondents merely relied on such
‘recognition’ of possible private rights. (Republic v.

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 REMEDIAL LAW
Cortez, GR. No. 197472, September 7, 2015, Del Castillo,
J.)
Doctrine of non-interference or doctrine of judicial
stability
GR: No court can interfere by injunction with the
judgments or orders of another court of concurrent
jurisdiction having the power to grant the relief sought
by the injunction. (Atty. Cabili v. Judge Balindog, A.M.
No. RTJ-10-2225, September 6, 2011)The rationale for
the rule is founded on the concept of jurisdiction: a
court that acquires jurisdiction over the case and
renders judgment therein has jurisdiction over its
judgment, to the exclusion of all other coordinate
courts, for its execution and overall its incidents, and to
control, in furtherance of justice, the conduct of
ministerial officers acting in connection with this
judgment. (United Alloy vs UCPB, G.R. No. 179257,
November 23, 2015, Del Castillo, J.)
XPN: The doctrine does not apply where a third-party
claimant is involved. (Santos v. Bayhon, G.R. No. 88643,
July 23, 1991)
RECEIVERSHIP
It is a provisional remedy wherein the court appoints a
representative to preserve, administer, dispose of and
prevent the loss or dissipation of the real or personal
property during the pendency of an action. It may be
the principal action itself or a mere provisional
remedy; it can be availed of even after the judgment
has become final and executory as it may be applied for
to aid execution or carry judgment into effect.
NOTE: Receivership under Rule 59 is a receivership
that is ancillary to a main action. The receivership
under Rule 59 is directed to the property which is the
subject of the action and does not refer to the
receivership authorized under the banking laws and
other rules or laws. Rule 59 presupposes that there is
an action and that the property subject of the action
requires its preservation. (Riano, 2012)
REQUISITES
1. Party applying for receivership has an existing
interest in the property or funds subject of the
action and the property or funds is in danger of
being lost, wasted or dissipated;
2. Verified application filed at any stage of the
proceedings even after final judgment, prior to the
satisfaction of judgment (Sec. 1, Rule 59);
3. The application must be with notice and hearing;
4. The applicant must post a bond executed to the
party against whom the application is presented
(Sec. 2, Rule 59); and
5. Receiver must be sworn to perform his duties
faithfully and shall file a bond. (Sec. 4, Rule 58)
TERMINATION OF RECEIVERSHIP
1. By the court motupropio or on motion by either
party;
2. Based on the following grounds:
a. Necessity for receiver no longer exists;
b. Receiver asserts ownership over the property
(Martinez v. Graño, G.R. No. L-25437, August
14, 1926); and
3. After due notice and hearing to all interested
parties. (Sec. 8, Rule 59)
Grounds for the discharge of receiver
1. Posting of counter-bond by adverse party (Sec. 3,
Rule 59);
24
NOTE: Where counter-bond is insufficient or
defective, receiver may be re-appointed. (Sec. 5,
Rule 59)
2. Appointment of receiver was made without
sufficient cause (Sec. 3, Rule 59);
3. Insufficient or defective applicant’s bond (Sec. 5,
Rule 59);
4. Insufficient or defective receiver’s bond (Sec. 5,
Rule 59); and
5. Receiver no longer necessary. (Sec. 8, Rule 59)
REPLEVIN
A remedy which may be a principal remedy or a
provisional relief.
1. As a main action- it seeks to regain the possession
of personal chattels being wrongfully detained
from the plaintiff.
2. As a provisional remedy- to allow the plaintiff to
allow the plaintiff to retain the thing during the
pendency of the action and hold it pendente lite.
(BA Finance Corp. v. CA, G.R. No. 102998, July 5,
1996)
WHEN MAY A WRIT OF REPLEVIN BE ISSUED
The writ of replevin may only be obtained when the
defendant in the action has not yet filed his answer to
the complaint where it is necessary to:
1. Protect plaintiff’s right of possession to property;
or
2. Prevent defendant from destroying, damaging or
disposing of the property.
REQUISITES
1. The application for the writ must be filed at the
commencement of the action or at anytime before
the defendant files an answer (Sec. 1, Rule 60);
2. The application must contain an affidavit where
the applicant particularly describes the property
that he is the owner of the property or that he is
entitled to the possession thereof;
NOTE: The affidavit must contain the following:
a. Applicant is the owner of the property
claimed, particular description of such
entitlement to possession;
b. Property is wrongfully detained, alleging
cause of detention according to applicant’s
knowledge, information and belief;
c. Property has not been taken for tax
assessment or fine, or seized by writ of
execution, preliminary attachment, in
custodia legis, if so seized, that is exempt or
should be released from custody; and
d. Actual market value of the property. (Sec. 2,
Rule 60)
3. The applicant must give a bond, executed to the
adverse party and double the value of the
property. (Sec. 2, Rule 60)
NOTE: When a person entrusts his vehicle to another
for re-sale, the former constituted the latter as his
agent. Since the agent was able to sell the subject
vehicle, the principal thus ceased to be the owner
thereof. Nor is the principal entitled to the possession
of the vehicle; together with his ownership, he lost his
right of possession over the vehicle. Considering that
he was no longer the owner or rightful possessor of the
subject vehicle at the time he filed the case, he may not
seek a return of the same through replevin. (Siy v.
Tomlin, G.R. No. 205998, April 24, 2017, Del Castillo, J.)
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