CIVIL PROCEDURE
Morillo Notes
CIVIL PROCEDURE
MORILLO NOTES
(ASG. MARISSA GUILLEN/
Atty. ERIC LAVADIA)
I. GENERAL PRINCIPLES OF REMEDIAL LAW
CONCEPT OF REMEDIAL LAW:
- Rules which prescribe the procedure for the
protection and enforcement of all claims arising from
the rights and duties created by law. (Riano, 2014)
- It provides the means and methods whereby causes
of actions of action may be effectuated, wrongs
redressed and relief obtained. (Black Law’s Dictionary,
5 Edition)
th
OBJECTIVE OF REMEDIAL LAW:
- Procedural rules are intended to facilitate the
administration of justice, not frustrate it. It is always
better that a case is decided on the merits rather than
disposed of because of procedural infirmities. (Heirs
of Marilou Santiago vs. Aguila, GR. 174034, March 9,
2011)
- The SC promulgated the Rules (of Procedure) in order
to provide a remedy for summary and non-adversarial
rehabilitation proceedings of distressed but viable
corporations. These Rules are to be construed
liberally to obtain for the parties a just, expeditious,
and inexpensive disposition of the case. To be sure,
strict compliance with the rules of procedure is
essential to the administration of justice. Nonetheless,
technical rules of procedure are mere tools designed
to facilitate the attainment of justice. Their strict and
rigid application should be relaxed when they hinder
rather than promote substantial justice. (Asia Trust
Development Bank vs. First Aikka Development, Inc.,
GR. 179558, June 1, 2011)
DIFFERENCE BETWEEN REMEDIAL LAW and
SUBSTANTIVE LAW:
Substantive Law Remedial Law
Creates, defines, and Prescribes the methods of
regulates rights and duties enforcing those rights and
concerning life, liberty or obligations created by
property. substantive law.
The violation of this give It provides a procedural system
rise to a cause of action. for obtaining redress for the
invasion of rights and violations
of duties, and by laying out
rules as to how suits are filed,
tried, and decided upon by the
courts.
PROSPECTIVE EFFECT OF REMEDIAL LAW:
- As a General Rule: Procedural Law should not be
applied retrospectively.
o Rules of Court are not penal laws and are not
to be given retroactive effect (Bermejo vs.
Barrios, 31 SCRA 764)
o The Rules of Court and to govern cases brought
after they take effect, and also all further
proceedings in cases then pending, except to the
extent that, in the opinion of the court, their
application would not be feasible or would work
injustice, in which event, the former procedure
shall apply. (Rule 144, Rules of Court)
o In the case of Herce, Jr. vs. Municipality of
Cabuyao, Laguna (GR no. 166645, November 11,
2005), the SC held that once a decree of
registration is made under the Torrens System,
and the reglementary period has passed within
which the decree may be questioned, the (land)
title is perfected and cannot be collaterally
questioned later on.
- Exception: Rules of procedure may be made
applicable to actions pending and undetermined at
the time of their passage, and are deemed retroactive
in that sense and to that extent.
o As a general rule, the retroactive application of
procedural laws cannot be considered violative of
any personal rights because no vested right may
attach to nor arise therefrom. (IN RE: To declare
in Contempt of Simeon Datumanong, 497 SCRA
626)
o Procedural laws may be given retroactive effect
to actions pending and to those which are not yet
undetermined at the time of their passage
because there are no vested rights in the rules of
procedure. (Go vs. Sunbanon, 642 SRA 367)
o In the case of Neypes vs. CA (469 SCRA 633),
The SC applied to pending actions a rule
promulgated through a case which standardized
the priod for appeal by allowing a “fresh period”
of 15 days within which to file the notice of appeal
in the RTC, counted from receipt of the order
dismissing a motion for a new trial or motion for
reconsideration.
WHEN PROCEDURAL RULES DO NOT APPLY TO
PENDING ACTION:
1. Where the statute itself or by necessary implication
provides that pending actions are excepted from its
operation;
2. If applying the rule to pending proceedings would
impair vested rights;
3. When to do so would not be feasible or would work
injustice; or
4. If doing so would involve intricate problems of due
process or impair the independence of the courts.
(Tan vs. CA, 373 SCRA 524)
SCOPE OF CIVIL PROCEDURE:
1. Ordinary civil action (Rules 1-56)
2. Provisional remedies (Rules 57-61); and
3. Special Civil Action (Rules 62-71)
II. RULE-MAKING POWER OF THE SUPREME COURT
CONSTITUTIONAL BASIS:
- The SC have the power to promulgate rules
concerning the protection and enforcement of
constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice
of law, the integrated bar, and legal assistance to the
underprivileged. (Sec. 5(5), Art. VIII, 1987 Constitution)
- Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall
CIVIL PROCEDURE 1
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Morillo Notes
be uniform for all courts of the same grade, and shall
not diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasi-judicial
bodies shall remain effective unless disapproved by
the Supreme Court. (Sec. 5(5), Art. VIII, 1987
Constitution)
POWER TO AMEND THE RULES:
- The 1987 Constitution took away the power of
Congress to repeal, alter, or supplement rules
concerning pleading, practice and procedure.
(Echegaray vs. Secretary of Justice, 301 SCRA 96)
- SC has the power to amend, repeal or even establish
new rules for a more simplified and inexpensive
process, and the speedy disposition of cases.
(Neypes vs. CA 469 SCRA 633)
- The rule-making power of the SC was expanded. This
Court for the first time was given the power to
promulgate rules concerning the protection and
enforcement of constitutional rights. The Court was
also granted for the first time the power to disapprove
rules of procedure of special courts and quasi-judicial
bodies. (Echegaray vs. Secretary of Justice, GR no.
13260, January 19,1999)
POWER TO OVERTURN THE RULES:
- Under Sec. 2, Rule 52, ROC; “x x x No second motion
for reconsideration of judgment or final resolution by
the same party shall be entertained”. (Sec.2, Rule 52,
ROC)
- In People vs. Romualdez, 587 SCRA 123), the SC
entertained a second motion for reconsideration
based on prescription of the offense, a ground
previously raised in the first motion for
reconsideration.
- The inherent power of a court to amend and control
its processes and orders includes the right to reverse
itself if only to make its findings and conclusions
conformable to law and justice. Every court has the
power and the corresponding duty to review, amend,
or reverse its findings and conclusions whenever its
attention is seasonably called to any error or defect
that it may have committed. (Herce vs. Municipality of
Cabuyao, 512 SCRA 332)
- The constitutional power of the SC to promulgate
rules of practice and procedure and to amend or
repeal necessarily carries with it the power to overturn
judicial precedents on points of remedial law though
amendment of the Rules of Court. (Pinga vs. Heirs of
Santiago, 494 SCRA 393)
POWER TO RELAX OR SUSPEND THE RULES:
- SC has the power to relax or suspend technical or
procedural rules or to except a case from their
operation when compelling reasons so warrant or
when the purpose of justice requires it. What
constitutes good and sufficient that would merit
suspension of the rules is discretionary upon the
courts. (Commissioner of Internal Revenue vs. Migrant
Pagbilao Corporation, 504 SCRA 484)
- The SC, in the exercise of its rule-making power, can
suspend its rules with respect to a particular case (pro
hac vice). (De la Cruz vs. CA, 510 SCRA 103)
- In the case of Samala vs. CA (GR no.128628, August
23, 2001), the last day for filing the notice of appeal
fell on a Friday, October 13, 1995, Petitioners
entrusted the filing of the notice of appeal to Jose
2 CIVIL PROCEDURE
Samala on Oct. 11, 1995. However, he suffered from
stomach pains which lasted until the following days.
Jose Samala filed the notice immediately on the next
business day, Monday. He believed in good faith that
still file it on Monday. Delay in filing the ntice of appeal
was actually for 1 day (excluding Saturdays and
Sundays). Considering the facts, the SC held that this
was excusable negligence.
POWER TO ALTER THAT WHICH HAS ALREADY BECOME
FINAL:
- The power to suspend or even disregard rules can be so
pervasive and compelling as to alter even the which the
SC itself had already declared to be final. (Apo Fruits
Corporation vs. Landbank of the Philippines, 632 SCRA
727)
- In the case of Manotok IV vs. Heirs of Barque (574 SCRA
468), the SC set aside the Decision and Resolution of its
First Division, recalled the Entry of Judgment and
remanded the cases involved to the CA for further
proceedings.
LIMITATION ON THE RULE-MAKING POWER OF THE
SUPREME COURT:
1. The rule shall provide a simplified and inexpensive
procedure for the speedy disposition of cases;
2. The rules shall be uniform for courts of the same
grade; and
3. The rules shall not diminish, increase, or modify
substantive rights. (Sec. 5(5), Art. VIII, 1987
Constitution)
III. JURISDICTION
JURISDICTION IN GENERAL
DEFINITION OF JURISDICTION:
- It is the power or authority of the court to try, hear,
and decide over a case. (Cuenca vs. PCGG, 535
SCRA 102)
TEST OF JURISDICTION:
- The test is whether the court has the power to enter
into the inquiry.
- Therefore, the question of whether a court has
jurisdiction over the subject matter, calls for
interpretation and application of the law on jurisdiction
which distributes the judicial power among the
different courts in the Philippines. (Reyes vs. Diaz, 73
Phil. 484)
DUTY OF THE COURT TO DETERMINE ITS
JURISDICTION:
- Courts are bound to take notice of the limits of their
authority and they may act accordingly by dismissing
the action even though the issue of jurisdiction is not
raised in the pleadings or not even suggested by
counsel. (Ace Publications vs. Commissioner of
Customs, 11 SCRA 147)
- When it appears that the court has no jurisdiction over
the subject matter of a complaint filed before it The
Court has the duty to dismiss the claim and can do so
motu proprio. (Rule 9, Sec.1, ROC)
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Morillo Notes
- Even if the parties do not challenge the jurisdiction of
a court or tribunal, this does not prevent the court
from addressing the issue especially where the lack of
jurisdiction is apparent on the face of the complaint or
petitions. (Heirs of Dela Cruz vs. Heirs of Cruz, 475
SCRA 743)
- As to Foreign Jurisdiction, the general principle that a
court which has jurisdiction over a case is bound to
exercise that jurisdiction is not without qualification.
o In certain situations, a court having
jurisdiction over a case may in its discretion
decline to exercise it as where the doctrine of
Forum non conveniens is applicable. (Riano
(2014), Civil Procedure Vol. 1, p. 70)
EFFECT OF LACK OF JURISDICTION:
- A court devoid of jurisdiction over the case cannot
make a decision in favor of wither party. It can only
dismiss the case for want of jurisdiction. However, a
court may set aside orders it had improperly made
before the want of jurisdiction is discovered and it is
said that a judgment by a court without jurisdiction
over the subject matter may be set aside and vacated
at any time by the court that rendered it. (Riano
(2014), Civil Procedure Vol. 1, p. 70)
BASIC PRINCIPLES OF CIVIL JURISDICTION
JURISDICTION IS DETERMINED BY THE LAW IN FORCE
AR THE RIME OF COMMENCEMENT:
- Jurisdiction of the court to hear and decide a case is
conferred by the law in force at the time of the institution
of the action, unless such statute provides for a
retroactive application thereof. (Dayap vs. Sendiong, GR
no. 177960, January 29, 2009)
- In the case of Dayap vs. Sendiong (GR no. 177960,
January 29, 2009), A case of Reckless Imprudence was
filed on December 29, 2004 before the RTC Sibulan,
Negros Oriental by the City Prosecutor. When the case
was filed on December 29, 2004. Sec. 32(2) of BP 129
had already been amended by RA 7691, which extended
the jurisdiction of the first-level courts over criminal cases
to include all offenses with imprisonment not exceeding 6
years irrespectively of the amount fine, and regardless of
other imposable accessory or other penalties including
those for civil liability. It explicitly states “that in offenses
involving damage to property through criminal
negligence, they shall have exclusive original jurisdiction
thereof.” It follows that criminal cases for reckless
imprudence punishable with prision correccional in its
medium and maximum periods should fall within the
jurisdiction of the MTC and not RTC.
DIFFERENCE BETWEEN JURISDICTION AND VENUE:
JURISDICTION VENUE
The authority to hear and The place where the case is to
determine a case; be heard or tried;
This is a matter of substantive This is a matter of procedural
law law
Establishes a relation between Establishes a relation between
the court and the subject matter plaintiff and defendant (or
petitioner and respondent);
Fixed by law and cannot be May be conferred by the act or
conferred by the parties. agreement of the parties.
Cannot be waived May be waived
The court may dismiss an action The court may not dismiss an
motu proprio in case of lack of action motu proprio because of
jurisdiction over the subject improper venue.
matter.
Sources: Nocum vs. PDI (GR no. 145022, Sept. 23, 2005);
Hiers of Lopez vs. De Castro (324 SCRA 591); Rudolf Lietz
Holdings, inc. vs. Registry of Deeds (344 SCRA 680)
DAVAO LIGHT & POWER CO. vs. CA
GR no. 93262, December 29, 1991
The SC held that “It is incorrect to theorize that after an
action or proceeding has been commenced and jurisdiction
over the person of the plaintiff has been vested in the court,
but before the acquisition of jurisdiction over the person of
the defendant (either by service of summons or his voluntary
submission to the court’s authority), nothing can be validly
done by the plaintiff or the court.”
DIFFERENCE BETWEEN ‘ERRORS OF JURISDICTION’
AND ‘ERROR OF JUDGMENT’:
- An “error of judgment” is one which the court may
commit in the exercise of its jurisdiction, and which
error is reviewable only by an appeal. On the other
hand, an “error of jurisdiction” is one where the act
complained of was issued by the court, officer or a
quasi-judicial body without or in excess of jurisdiction
or with grave abuse of discretion which is tantamount
to lack or in excess of jurisdiction. This error is
correctible only by the extraordinary writ of certiorari.
(Donato vs. CA, GR no. 129638, December 8, 2003)
- A petition for certiorari is proper to correct only errors
of jurisdiction committed by any court, tribunal or
administrative agency. Public respondent acts without
jurisdiction if it does not have the legal power to
determine the case, or in excess of jurisdiction if it
oversteps its authority as determined by law. Grave
abuse of discretion is committed when respondent
acts in a capricious, whimsical, arbitrary, or despotic
manner in the exercise of its judgment as to be
equivalent to lack o jurisdiction. (Soneja vs. CA, GR
no. 161533, June 5, 2009)
- Where the court has jurisdiction and, having all the
facts necessary for a judgment, it rendered a decision
without holding any trial or hearing (where the parties
are allowed to present their respective evidence in
support of their cause of action and defense), such
judgment cannot be assailed as having been rendered
without or in excess of jurisdiction nor rendered with
grave abuse of discretion. (Republic vs. “G” Holdings,
GR no. 141241, November 22, 2005)
DOCTRINE OF ADHERENCE TO JURISDICTION
(CONTINUITY OF JURISDICTION):
- This doctrine means that once jurisdiction has
attached, it cannot be ousted by subsequent
happenings or events, although of a character which
would have prevented jurisdiction from attaching in
the first instance. The court, once jurisdiction has
been acquired, retains that jurisdiction until it finally
disposes of the case. (San Miguel Corporation vs.
Sandiganbayan, GR no. 104637038, September 14,
2000)
- In another case, it was held that the trial court did not
lose jurisdiction over the case involving a public
official by the mere fact that said official ceased to be
in office during the pendency of the case. (Flores vs.
Sumaljag, AM no. MTJ-97-1115, June 5, 1998)
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 CIVIL PROCEDURE
Morillo Notes
- Also, the fact that the complainant resigned after the
filing of the administrative complaint did not affect the
case because jurisdiction had already been acquired
over the case upon the filing of the complaint.
Jurisdiction, once acquired, is not lost by the
resignation of the complaining party; it continues until
the case is terminated. (Basilio vs. Dinio, AM no. P-09-
2700, November 15, 2010)
- Even the finality of the judgment does not totally
deprive the court of jurisdiction over the case. What
the court loses is the power to amend, modify, or alter
the judgment. Even after the judgment has become
final, the court retains jurisdiction to enforce and
execute it. (Echegaray vs. Secretary of Justice, 301
SCRA 96)
EFFECT OF LACK OF JURISDICTION:
- A court devoid of jurisdiction over the case cannot
make a decision in favor of either party. It can only
dismiss the case for lack of jurisdiction. However, a
court may set aside orders it had improperly made
before that lack of jurisdiction is discovered and it is
said that a judgment by a court without jurisdiction
over the subject matter may be set aside and vacated
at any time by the court that rendered it. (Riano, Civil
Procedure, Vol. I, p. 70)
- Petitioners’ failure to ask the CIR for a reconsideration
of the assailed revenue regulations and RMCs is
another reason why the instant case should be
dismissed. It is settled that the premature invocation
of the court's intervention is fatal to one's cause of
action. If a remedy within the administrative machinery
can still be resorted to by giving the administrative
officer every opportunity to decide on a matter that
comes within his jurisdiction, then such remedy must
first be exhausted before the court’s power of judicial
review can be sought. The party with an
35
administrative remedy must not only initiate the
prescribed administrative procedure to btain relief but
also pursue it to its appropriate conclusion before
seeking judicial intervention in order to give the
administrative agency an opportunity to decide the
matter itself correctly and prevent unnecessary and
premature resort to the court. (Asia International
Auctioneers, Inc. vs. Parayno, Jr., GR no. 163445,
December 18, 2007)
- Petitioners’ insistence for this Court to rule on the
merits of the case would only prove futile. Having
declared the court a quo without jurisdiction over the
subject matter of the instant case, any further
disquisition would be obiter dictum. (Asia International
Auctioneers, Inc. vs. Parayno, Jr., GR no. 163445,
December 18, 2007)
- The SC barred a belated objection to jurisdiction that
was raised by a party only when an adverse decision
was rendered by the lower court against it and
because it raised the issue only after seeking
affirmative relief from the court and actively
participating in all stages of the proceedings. The
Doctrine of Estoppel by Laches is based upon
grounds of public policy and is principally a question
of the inequity or unfairness of permitting a right or
claim to be enforced or asserted. (Tijam vs.
Sibonghanoy, GR no. L-21450, April 15, 1968)
- A party who has invoked the jurisdiction of the court
over a particular matter to secure affirmative relief
cannot be permitted to afterwards deny that same
4 CIVIL PROCEDURE
jurisdiction to escape liability. (Emilio La’o vs.
Republic, GR no. 160719, January 23, 2006)
SUSPENDED JURISDICTION:
- The real justification is to enable management
committee or rehabilitation receiver to effectively
exercise its/his power free from any judicial or extra-
judicial interference that might unduly hinder or
prevent the rescue of the debtor company. To allow
such other action to continue would only add to the
burden of the management committee or
rehabilitation receiver, whose time, effort and
resources would be wasted in defending claims
against the corporation instead of being directed
toward its restructuring and rehabilitation. ( PAL vs.
Kurangking, GR no. 146698, September 24, 2002)
ORIGINAL JURISDICTION:
- Means that jurisdiction to take cognizance of a case at
its inception, try it and pass judgment upon the law
and facts. (Cubero vs. Laguna West, 509 SCRA 410)
EXCLUSIVE JURISDICITON:
- Precludes the idea of co-existence and refers to
jurisdiction possessed to exclusion of others. (Cubero
vs. Laguna West, 509 SCRA 410)
CONCURRENT JURISDICITON:
- The power of different courts to take cognizance of
the same subject matter. Where there is concurrent
jurisdiction, the court first taking cognizance of the
case assumes jurisdiction to the exclusion of the other
courts.
DOCKET FEES:
PAYMENT OF DOCKET FEES:
- A case is deemed filed only upon payment of the
docket fee regardless of the actual date of filing in
court. The Court acquires jurisdiction over any case
only upon the payment of the prescribed docket fee.
An amendment of the complaint or similar pleading
will not thereby vest jurisdiction in the Court, much
less the payment of the docket fee based on the
amounts sought in the amended pleading. The ruling
in the Magaspi case in so far as it is inconsistent with
this pronouncement is overturned and reversed.
(Manchester Development Corp. vs. CA, GR no.
75919, May 7, 1987)
- The contention that Manchester case cannot apply
retroactively to this case is untenable. Statutes
regulating the procedure of the courts will be
construed as applicable to actions pending and
undetermined at the time of their passage. Procedural
laws are retrospective in that sense and to that extent.
(Sun Insurance Office vs. Asuncion, GR no. 79937-38,
February 13, 1989)
- Non-payment at the time if filing does not
automatically cause the dismissal of thcase, as long
as the fee is paid within the applicable prescriptive or
reglementary period, x x x. Thus, when insufficient
filing fees were initially paid by the plaintiffs and there
was no intention to defraud the government, the
Machester case rule does not apply. (Sun Insurance
Office vs. Asuncion, GR no. 79937-38, February 13,
1989; Proton Pilipinas Corp. vs. Banque, GR no. 151
 CIVIL PROCEDURE
Morillo Notes
242, June 15, 2005; Lu vs. Lu, GR no. 153690, August not raised in the
4, 2009) pleadings.
- The correct docket fees must be paid before courts Over the Res Refers to the court’s By placing the
can act on a petition or complaint. The exception to jurisdiction over the property or thing
thing or the property under the custody of
the rule on payment of docket fees is when a party is
which is the subject the court of
considered as an “Indigent Party” under Sec. 21, Rule of the action. constructive seizure.
3, and Sec. 19, Rule 141 of the 1997 Rules of Civil Source: Riano (2014), Civil Procedure Volume 1 (The Bar
Procedure. (Tokio Marine Malayan Insurance vs. Lecture Series))
Valdez, GR no. 150107, January 28, 2008)

STAGGERED DOCKET FEE:

- While the payment of the prescribed docket fee is a
jurisdictional requirement, even its nonpayment at the
time of filing does not automatically cause the
dismissal of the case, as long as the fee is paid within
the applicable prescriptive or reglementary period,
more so when the party involved demonstrates a
willingness to abide by the rules prescribing such
payment. (Sps. Go vs. Tong, GR no.151942,
November 27, 2003)
- While the cause of action of private respondent was
supposed to prescribe in 4 years, he was allowed to
pay; and he in fact paid the docket fee in a year’s
time. The SC do not see how this period can be
deemed unreasonable. (Sps. Go vs. Tong, GR
no.151942, November 27, 2003)
ASPECTS OF JURISDICTION:
ASPECTS OF JURISDICTIONS:
a. Jurisdiction over the subject matter;
b. Jurisdiction over the parties;
c. Jurisdiction over the issues of the case; and
d. Jurisdiction over the res or thing involved in the
litigation (Boston Equity Resources, Inc. vs. CA, GR
no. 173946, June 19, 2013)
HOW ACQUIRED
JURISDICTION: MEANING OR
CONFERRED?
IV. NATURE OF OUR PHILIPPINE COURTS
GENERAL PRINCIPLES
COURTS OF LAW AND EQUITY:
- Philippine courts are courts of both law and equity.
Therefore, both legal and equitable jurisdiction is
dispensed with in the same tribunal. (US vs. Tamparong,
31 Phil. 321)
- As a rule, when supported by substantial evidence, the
findings of the CA are conclusive and binding on the
parties and are not reviewable by the SC. However, there
are times when the SC finds the need to re-evaluate and
re-examine the factual findings of the CA, as when the
same contradict the findings of a lower tribunal. When the
SC makes such reevaluation, it does so in the exercise of
its equity jurisdiction. (Torres vs. Rural Bank of San Juan,
693 SCRA 357, March 12, 2013)
WHAT IS EQUITY JURISDICTION?
- It is the power of the court to resolve issues presented in a
case, in accordance with the natural rules of fairness and
justice, and in the absence of a clear, positive law
governing such issues. (Riano, Civil Procedure, Vol. I, The
Bar Lectures Series, p. 55)
APPLICATION OF EQUITY JURISDICTION:
- Equity denotes a concept of fairness, justness, and right
dealing among men. (Black Law Dictionary, 5 Edition).
th

Over the Subject The power or This is conferred by

Matter authority to hear and law which may be
determine cases of either the
the general class to Constitution or a
which the statute.
proceeding in
question belongs.
Over the Person The power of the If over the plaintiff, it
court to render a is acquired by his or
personal judgment her filing of the
against a party to an complaint or petition.
action or proceeding. (Davao Light vs. CA,
It is also the power 204 SCRA 343)
which a court has If over the defendant
over the defendant’s in civil cases, it is
person which is acquired by his
required before a voluntary
court can enter a appearance in court
personal judgment. or by service of
summons.
Over the Issue The power of the This is conferred and
court to try and determined by the
decide the issues allegations in the
raised in the pleadings of the
pleadings of the parties, or during
parties. pre-trials, or by
waiver or failure to
object to the
presentation of
evidence on a matter
- Equity is available only in the absence of law and not as its
replacement. (Tankiko vs. Cezar, 302 SCRA 559)
- Equity is never availed of against statutory law or judicial
pronouncements. (David-Chan vs. CA, 268 SCRA 677)
- In the case of David-Chan vs. CA (268 SCRA 677), The
petitioner, upon seeing the inadequacy of her legal
arguments, pleaded that “those who have less in life
should have more in law.” She sought the application of
Filipino values of ‘pakikisama’ and ‘pakikipagkapwa tao’ in
resolving her case. The SC held that such appeal of the
petitioner has been described as “justice outside legality”,
and such argument cannot prevail over the legal findings.
- In an action to annul a contract of sale of land, the buyer
moved for the court to order the seller to deposit in court
the amount initially given to the seller as consideration for
the land to prevent the dissipation of the amount paid. The
seller opposed it arguing that a deposit is not among the
provisional remedies enumerated in the ROC. The SC,
nevertheless, granted the motion of the buyer because this
is a case of insufficiency of the law and Art. 9, Civil Code,
mandates a ruling despite the “silence, obscurity or
insufficiency of the laws.” This calls for the application of
equity, which fills the open spaces of the law. In ordering
the deposit, the Court accordingly exercised its “equity
jurisdiction.” (Reyes vs. Lim, 408 SCRA 560)

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Morillo Notes
DOCTRINE OF HIERARCHY OF COURTS (PRINCIPLE OF
JUDICIAL HIERARCHY):
- A case must be filed before the lowest court possible
having the appropriate jurisdiction, except if one can
advance a special reason which would allow a party a
direct resort to a higher court. (Riano, Civil Procedure,
Vol. I, The Bar Lectures Series, p. 57)
APPLICATION OF THE DOCTRINE OF HIERARCHY OF
COURTS:
- The concurrence of jurisdiction does not grant the party
seeking relief the absolute freedom to file a petition in
any court of his choice. (Vivas vs. Monetary Board of
Bangko Sentral ng Pilipinas, GR no.191424, August 7,
2013)
- While the issuance of writ of prohibition under Rule 65,
ROC, is within the original jurisdiction of the SC, a
petitioner cannot seek relief from the SC where the
issuance of such writ is also within the competence of
the RTC or the CA. The SC is a court of last resort. It
cannot be burdened with the task of deciding cases in
the first instance. Its jurisdiction to issue extraordinary
writs should be exercised only where absolute
necessary or where serious and important reasons
exists. (Purok Bagong Silangan vs. Yuipco, 489 SCRA
382)
- In the case of Cruz vs. Gingoyon (658 SCRA 254), it held
that “Unwarranted demands upon the SC’s attention
must be prevented, to allow time and devotion for
pressing matters within its exclusive jurisdiction.
PURPOSE OF THE DOCTRINE OF HIERARCHY OF
COURTS:
a. It would be an imposition upon the limited time of the
Court; and
b. It would inevitably result in delay, intended or
otherwise, in the adjudication of cases. (Rosario Jr.
vs. De Guzman, GR no. 191247, July 10, 2013)
WHEN THE DOCTRINE OF HIERARCHY OF COURTS MAY
BE DISREGARDED:
- A direct resort to the SC was allowed in certain cases,
to wit:
o When there are special and important reasons
clearly stated in the petition;
o When dictated by public welfare and the
advancement of public policy;
o When demanded by the broader interest of
justice;
o When the challenged orders were patent
nullities; or
o When analogous exceptional and compelling
circumstances called for and justified the
immediate and direct handling by the Court.
(Republic vs. Caguioa, 691 SCRA 306, February
20, 2013)
DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF
JUDICIAL STABILITY:
- It holds that courts of equal and coordinate
jurisdiction cannot interfere with each other’s orders.
(Lapu-Lapu Development and Housing Corp. vs.
Group Management Corp., 388 SCRA 493)
- A RTC has no power or authority to nullify or enjoin
the enforcement of a writ of possession issued by
6 CIVIL PROCEDURE
another RTC. (Suico Industrial Corp., vs. CA, 301
SCRA 212)
- The Doctrine of Non-interference is with equal force to
administrative bodies. When the law provides for an
appeal from the decision of an administrative body to
the SC or CA, it means that such body is co-equal
with the RTC in terms of rank and stature, and
logically beyond the control of the latter. (Philippine
Sinter Corporation vs. Cagayan Electric Power and
Light Co., Inc., 381 SCRA 582)
DOCTRINE OF PRIMARY JURISDICTION (PRIMARY
ADMINISTRATIVE JURISDICTION):
- Courts cannot and will not resolve a controversy
involving a question within the jurisdiction of an
administrative tribunal, especially when the question
demands the sound exercise of administrative
discretion requiring special knowledge, experience
and services of the administrative tribunal to
determine technical and intricate matters of fact. The
court cannot arrogate unto itself the authority to
resolve a controversy, the jurisdiction of which is
initially lodged with the administrative body of special
competence. (BF Homes, Inc vs. Manila Electric
Company, 636 SCRA 495)
- If determination of a case requires the expertise,
specialized training, and knowledge of an
administrative body, relief must first be obtained in an
administrative proceeding before resort to the court is
had even if the matter may well be within the latter’s
proper jurisdiction. (Nestle Philippines, Inc. vs.
Uniwide Sales, Inc. 634 SCRA 232)
OBJECTIVE OF THE DOCTRINE OF PRIMARY
JURISDICTION:
- To guide the court in determining whether it should
refrain from exercising its jurisdiction until after an
administrative agency has determined some question
arising in the proceeding before the court. (Nestle
Philippines, Inc. vs. Uniwide Sales, Inc., 634 SCRA
232)
- The SC recognized that the MWSS was in the best
position to evaluate and decide which bid for a
waterworks project was compatible with its
development plan. (Concerned Officials of the MWSS
vs. Vasquez, 240 SCRA 502)
EXCEPTIONS TO THE DOCTRINE OF PRIMARY
JURISDICTION:
a. Where there is estoppel on the part of the party
invoking the doctrine;
b. Where the challenged administrative act is patently
illegal, amounting to lack of jurisdiction;
c. Where there is unreasonable delay or official inaction
that will irretrievably prejudice the complainant;
d. Where the amount involved is relatively small;
e. Where the question involved is purely legal and
will ultimately have to be decided by the courts of
justice;
f. Where judicial intervention is urgent;
g. When its application may cause great and irreparable
damage;
h. Where the controverted acts violate due process;
i. When the issue of non-exhaustion of administrative
remedies has been rendered moot;
 CIVIL PROCEDURE
Morillo Notes
j. When there is no other plain, speedy and adequate
remedy; when strong public interest is involved; and
k. In Quo warranto proceedings. (Province of Aklan vs.
Jody King Constructions, GR no. 197592, November THE PHILIPPINE COURTS
27, 2013)

DIFFERENCE BETWEEN JURISDICTION AND EXERCISE SUPREME COURT OF THE PHILIPPINES

OF JURISDICTION:
- Jurisdiction refers to the authority to decide a case,
not the orders or the decision rendered therein.
Accordingly, where a court has jurisdiction over the
person and the subject matter, the decision on all
questions arising from the case is but an exercise of
such jurisdiction. (Platinum Tours and Travel, Inc. vs.
Panlilio, GR no. 133365, September 16, 2003)
- Any error that the court may commit in the exercise of
its jurisdiction is merely an error of judgment which
does not affect its authority to decide the case, much
less divest the court of the jurisdiction over the case.
(Platinum Tours and Travel, Inc. vs. Panlilio, GR no.
133365, September 16, 2003)
HIERARCHY OF COURTS:
- Under the doctrine of Hierarchy of Courts, a case
must be filed before the lowest court possible having
the appropriate jurisdiction. (Riano, Civil Procedure,
Vol. 1, p. 57)
- However, in another case where a party alleged that
the submission of this controversy to the Supreme
Court at the first instance is a violation of the rule on
hierarchy of courts because the trial court have
concurrent jurisdiction with the SC with respect to a
special civil action for prohibition and, therefore, it
must first be filed before the trial court. The SC held
that the rule on hierarchy of courts will not prevent
them (the SC) from assuming jurisdiction over the
case at bar. The said rule may be relaxed when the
redress desired cannot be obtained in the appropriate
courts or where exceptional and compelling
circumstances justly availment of a remedy within and
calling for the exercise of the SC’s primary jurisdiction.
(Agan, Jr. vs. Philippine International Air Terminals, GR
no. 155001, May 5, 2003)
TOTALITY RULE:
- Where there are several claims or causes of actions
between the same or different parties, embodied in
the same complaint the amount of the demand shall
be the totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out
of the same or different transactions. (Sec. 33(1), BP
129)
ILLUSTRATION:
A owes B the following:
● P250,000.00 representing the balance on the purchase
price of a car;
● P250,000.00 based on a simple loan;
● P275,000.00 also based on another loan.
All debts are due and a demand to pay went unheeded. If an
action if filed and the causes of action are joined, the basis of
jurisdiction would be the total amount due.
Who has jurisdiction?
The RTC, in this case, has jurisdiction. If each debt is
made the subject of a separate complaint, the MTC, by
reason of the amount, has jurisdiction.
EXCLUSIVE ORIGINAL JURISDICTION in petitions for
Certiorari, Prohibition, and Mandamus against the:
1. Court of Appeals;
2. Commission on Election;
3. Commission on Audit;
4. Sandiganbayan;
5. Court of Tax Appeals.
CONCURRENT ORIGINAL JURISDICTION:
1. With the Court of Appeals in petitions for certiorari,
prohibition, and mandamus against the:
a. RTC;
b. Civil Service Commission;
c. Central Board of Assessment Appeals;
d. National Labor Relations Commissions;
e. Other Quasi-Judicial Agencies;
2. With the CA and RTC in petitions for Certiorari,
Prohibition and Mandamus against lower courts and
bodies, and in petitions for Quo Warranto and
Habeas Corpus;
3. With the RTC in cases affecting ambassadors, public
ministers, and consuls.
APPELLATE JURISDICTION By way of petition for review on
Certiorari under Rule 45 against the:
1. CA;
2. Sandiganbayan;
3. Regional Trial Court on:
a. Pure questions of law; and
b. In cases involving the constitutionality or
validity of a law or treaty, international or
executive agreement, law, presidential
decree, proclamation, order, instruction,
ordinance or regulation, legality of a tax,
impost, assessment, toll or penalty,
jurisdiction of a lower court;
4. Court of Tax Appeal in its decisions rendered en
banc.
CASES WHICH MUST BE HEARD BY THE SUPREME
COURT EN BANC:
1. All cases involving the constitutionality of a treaty,
international or executive agreement, or law;
2. All cases which are required to be heard En Banc
under the Rules of Court;
3. All cases involving the constitutionality, application,
or operation of presidential decrees, proclamations,
orders, instructions, ordinances, and other
regulations.
4. Cases heard by a division when the required number
in the division is not obtained;
5. Cases involving a modification or reversal of a
doctrine or principle of law laid down previously by
the Supreme Court in a decision rendered En Banc
or by a division;
6. Cases involving the discipline of judges of lower
courts;

CIVIL PROCEDURE 7

 CIVIL PROCEDURE
Morillo Notes
7.Contests relating to the election, returns, and
qualifications of the President or Vice-President.
PROCEDURE WHEN THE SUPREME COURT EN BANC IS
EQUALLY DIVIDED:
1. The case shall be deliberated on.
2. If after such deliberation, No Decision is reached
the Original action commenced in the court shall be
dismissed.
3. In appealed cases the judgment or other appealed
from shall stand affirmed.
4. On all incidental matters the Petition or motion shall
be denied. (See. Rule 56, Sec. 7, ROC).
COURT OF APPEALS:
NOTE: Unlike the SC which could sit En Banc in
order to resolve cases, the CA may sit En Banc
only for the purpose of exercising administrative,
ceremonial, o rother non-adjudicatory functions
(Sec. 4, BP 129)
EXCLUSIVE ORIGINAL JURISDICITON:
- In actions for the annulment of the judgments of the
RTC. (Sec. 9(2), BP 129)
CONCURRENT AND ORIGINAL JURISDICTION:
● With the Supreme Court to issue writs of Certiorari,
Prohibition and Mandamus against:
o RTC
o Civil Service Commission;
o Central Board of Assessments Appeals;
o Other quasi-judicial agencies mentions in
Rule 43 of the ROC; and
o National Labor Relations Commissions
● With the Supreme Court and RTC:
o To issue writs of Certiorari, Prohibition, and
Mandamus against lower courts and bodies
and also writs of Quo Warranto and Habeas
Corpus.
EXCLUSIVE APPELLATE JURISDICTION:
● By way of ordinary appeal from the judgments of the
RTC and the Family Courts; (Sec. 14, RA 8369)
● By way of petition for review from the judgment of
the RTC rendered in the exercise of its appellate
jurisdiction.
● By way of petition for review from the decisions,
resolutions orders or awards of the Civil Service
Commission, and other bodies mentioned in Rule 43
of the ROC.
● Decisions of the Office of the Ombudsman in
Administrative Disciplinary cases are appealable to
the CA. (Gonzales vs. Rosas, 423 SCRA 488)
APPELLATE JURISDICTION:
- Over decisions of the MTC in cadastral or land
registration caes pursuant to its delegated jurisdiction.
(Sec. 34, BP 129, as amended by RA 7691).
- This is because the decisions of the MTC in these
cases are appealable in the same manner as
decisions of the RTC. (Sec. 34, BP 129)
POWER TO TRY AND CONDUCT EARINGS LIKE A TRIAL
COURT:
- The CA shall have the power to try cases and conduct
hearings, receive evidence, and perform any and all
8 CIVIL PROCEDURE
acts necessary to resolve factual issues in cases
falling not only within its original jurisdiction but also in
cases falling within its appellate jurisdiction. This
authority includes the power to grant and conduct
new trials or further proceedings. (Sec. 9(3), BP 129,
as amended by RA 7902)
- The CA may pass upon the evidence to factual issues
as when a petition for certiorari is filed before it, or in
petitions for writ of amparo or habeas data or, in case
of actions to annul the judgment of the RTC over
which the CA has original jurisdiction. (Alcazaren vs.
Univet Agricultural Products, 475 SCRA 636)
- The authority granted by law to the CA to conduct
trials or hearings is subject to the following limitations:
o Trials or hearings must be continuous;
o Trials and hearings must be completed within
3 months, except when extended by the
Chief Justice. (Sec. 9(3), BP 129)
COURT OF TAX APPEALS
EXCLUSIVE APPELLATE JURISDICTION TO REVIEW BY
APPEAL:
1. Decisions of the Commissioner of Internal Revenue
in cases involving disputed assessments, refunds of
internal revenue taxes, fees or other charges,
penalties in relation thereto, or other matters arising
under the National Internal Revenue or other laws
administered by the Bureau of Internal Revenue;
2. Inaction by the Commissioner of Internal Revenue in
cases involving disputed assessments, refunds of
internal revenue taxes, fees or other charges,
penalties in relations thereto, or other matters arising
under the National Internal Revenue Code or other
laws administered by the Bureau of Internal Revenue,
where the National Internal Revenue Code provides a
specific period of action, in which case the inaction
shall be deemed a denial;
3. Decisions, orders or resolutions of the Regional Trial
Courts in local tax cases originally decided or
resolved by them in the exercise of their original or
appellate jurisdiction;
4. Decisions of the Commissioner of Customs in cases
involving liability for customs duties, fees or other
money charges, seizure, detention or release of
property affected, fines, forfeitures or other penalties
in relation thereto, or other matters arising under the
Customs Law or other laws administered by the
Bureau of Customs;
5. Decisions of the Central Board of Assessment
Appeals in the exercise of its appellate jurisdiction
over cases involving the assessment and taxation of
real property originally decided by the provincial or
city board of assessment appeals;
6. Decisions of the Secretary of Finance on customs
cases elevated to him automatically for review from
decisions of the Commissioner of Customs which are
adverse to the Government under Section 2315 of
the Tariff and Customs Code;
7. Decisions of the Secretary of Trade and Industry, in
the case of nonagricultural product, commodity or
article, and the Secretary of Agriculture in the case of
agricultural product, commodity or article, involving
dumping and countervailing duties under Section
301 and 302, respectively, of the Tariff and Customs
Code, and safeguard measures under Republic Act
 CIVIL PROCEDURE
Morillo Notes
No. 8800, where either party may appeal the
decision to impose or not to impose said duties.
(Sec. 7, RA 9282)
JURISDICTION OVER TAX COLLECTION CASES:
1. Exclusive original jurisdiction in tax collection cases
involving final and executory assessments for taxes,
fees, charges and penalties: Provided, however, That
collection cases where the principal amount of taxes
and fees, exclusive of charges and penalties claimed,
is less than P1,000,000.00 shall be tried by the
proper Municipal Trial Court, Metropolitan Trial Court
and Regional Trial Court.
2. Exclusive appellate jurisdiction in tax collection
cases:
a. Over appeals from the judgments,
resolutions or orders of the RTC in tax
collection cases originally decided by them,
in their respective territorial jurisdiction.
b. Over petitions for review of the judgments,
resolutions or orders of the RTC in the
exercise of their appellate jurisdiction over
tax collection cases originally decided by
the MTC, MeTC, MCTC, in their respective
jurisdiction.
REGIONAL TRIAL COURT
RTC IS A COURT OF GENERAL JURISDICITON:
- Under BP 129, Sec. 19(6), it includes as part of the
exclusive original jurisdiction of the RTC, cases “not
within the exclusive jurisdiction of any court, tribunal,
person or body exercising judicial or quasi-judicial
functions.”
- The RTC is a court of general jurisdiction because all
cases, the jurisdiction of which is not specifically
provided by law to be within the jurisdiction of any
other court falls within the jurisdiction of the RTC.
(Durisol Philippines, vs. CA, 377 SCRA 353)
EXCLUSIVE ORIGINAL JURISDICTION:
1. In all civil actions in which the subject of the litigation
is incapable of pecuniary estimation;
2. In all civil actions which involve the title to, or
possession of, real property, or any interest therein,
where the assessed value of the property involved
exceeds Twenty thousand pesos (P20,000.00) or for
civil actions in Metro Manila, where such the value
exceeds Fifty thousand pesos (50,000.00) except
actions for forcible entry into and unlawful
detainer of lands or buildings, original jurisdiction
over which is conferred upon Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts;
3. In all actions in admiralty and maritime jurisdiction
where he demand or claim exceeds P300,000.00
outside Metro Manila, or where such demand or
claim exceeds P400,000.00 within Metro Manila;
4. In all matters of probate, both testate and intestate,
where the gross value of the estate exceeds
P300,000.00 outside Metro Manila or, in probate
matters in Metro Manila, where such gross value
exceeds P400,000.00;
5. In all actions involving the contract of marriage and
marital relations;
NOTE: This jurisdiction is modified by Sec. 5 of RA 8369,
the law which established the Family Courts. However,
under Sec. 17 of the same provides that in areas where
there are no Family Courts, the cases referred to in Sec. 5
of the same shall be adjudicated by the RTC.
6. In all cases not within the exclusive jurisdiction of any
court, tribunal, person or body exercising jurisdiction
or any court, tribunal, person or body exercising
judicial or quasi-judicial functions;
NOTE: This jurisdiction is often described as the “general” jurisdiction
of the RTC making it a court of “general jurisdiction.
7. In all civil actions and special proceedings falling
within the exclusive original jurisdiction of a Juvenile
and Domestic Relations Court and of the Courts of
Agrarian Relations as now provided by law; and
NOTE: The jurisdiction of the RTC over cases under the exclusive
original jurisdiction of the Juvenile and Domestic Relations
Court is subject to RA 8369 (Family Courts)
8. In all other cases in which the demand, exclusive of
interest, damages of whatever kind, attorney's fees,
litigation expenses, and costs or the value of the
property in controversy exceeds P300,000.00
outside Metro Manila or, in such other
abovementioned items exceeds P400,000.00 within
Metro Manila. (As amended by R.A. No. 7691)
CONCURRENT ORIGINAL JURISDICTION:
- With the SC in actions affecting ambassadors, other
public ministers, and consuls.
- With the SC and CA in petitions for Certiorari,
Prohibition, and Mandamus against lower courts and
bodies and in petitions for Quo Warranto and Habeas
Corpus.
APPELLATE JURISDICTION:
- Over all cases decided by the MTC, MeTC, MCTC in
their respective territorial jurisdictions.
- Decisions of the RTC in the exercise of its appellate
jurisdiction shall be appealable by petition for review
to the CA. the appeal shall be given due course only
when the petition shows prima facie that the lower
court has committed an error of fact or law that would
warrant a reversal or modification of the decision or
judgment sought to be reviewed. (Sec. 22, BP 129)
SPECIAL JURISDICTION TO TRY SPECIAL CASES:
- Certain RTC branches may be designated by the SC
to handle exclusively criminal cases, juvenile and
domestic relations cases, agrarian cases, urban and
land reform cases which do not fall under the
jurisdiction of quasi-judicial bodies and agencies,
and/or such other special cases as the SC may
determine in the interest of a speedy and efficient
administration of justice. (Sec. 23, BP 129)
JURISDICTION OVER INTER-CORPORATE
CONTROVERSIES:
Sec. 5.2 of the Securities Regulation Code (RA 9799)
provides that the RTC shall exercise original and exclusive
jurisdiction to hear and decide the following cases:
CIVIL PROCEDURE 9
 CIVIL PROCEDURE
Morillo Notes
1. Devices or schemes employed by or any acts, of the
board of directors, business associates, its officers
or partners, amounting to fraud and
misrepresentation which may be detrimental to the
interest of the public and/or of the stockholder,
partners, members of associations or organizations
registered with the Commission;
2. Controversies arising out of intra-corporate or
partnership relations, between and among
stockholders, members, or associates; between any
or all of them and the corporation, partnership or
association of which they are stockholders, members
or associates, respectively; and between such
corporation, partnership or association and the state
insofar as it concerns their individual franchise or
right to exist as such entity;
3. Controversies in the election or appointments of
directors, trustees, officers or managers of such
corporations, partnerships or associations.
4. Petitions of corporations, partnerships or
associations to be declared in the state of
suspension of payments in cases where the
corporation, partnership or association possesses
sufficient property to cover all its debts but foresees
the impossibility of meeting them when they
respectively fall due or in cases where the
corporation, partnership or association has no
sufficient assets to cover its liabilities, but is under
the management of a Rehabilitation Receiver or
Management Committee created pursuant to this
Decree.
NOTE: An intra-corporate controversy is one which pertains
to any of the following relationships:
1. Between the corporation, partnership or
association and the public;
2. Between the corporation, partnership or
association and the State insofar as its franchise,
permit or license to operate is concerned;
3. Between the corporation, partnership or
association and its stockholders, partners,
members or officers; and
4. Among the stockholders, partners or associates
themselves.
Thus, under the relationship test, the existence of any of the
above intra-corporate relations makes the case
intracorporate.
CALLEJA vs. PANDAY
GR no. 168696, February 28, 2006
While a petition for review on certiorari under Rule 45 would
ordinarily be inappropriate to assail an interlocutory order, in the
interest, however, of arresting the perpetuation of an apparent error
committed below that could only serve to unnecessarily burden the
parties, the Court has resolved to ignore the technical flaw and, also,
to treat the petition, there being no other plain, speedy and adequate
remedy, as a special civil action for certiorari. Not much, after all, can
be gained if the Court were to refrain from now making a
pronouncement on an issue so basic as that submitted by the parties.
In this case, the basic issue of which court has jurisdiction
over cases previously cognizable by the SEC under Section 5,
Presidential Decree No. 902-A (P.D. No. 902-A), and the propensity of
the parties to resort to violence behoove the Court to look beyond
petitioners’ technical lapse of filing a petition for review
on certiorari instead of filing a petition for certiorari under Rule 65 with
the proper court. Thus, the Court shall proceed to resolve the case on
its merits.
It should be noted that allegations in a complaint for quo
warranto that certain persons usurped the offices, powers and
10 CIVIL PROCEDURE
functions of duly elected members of the board, trustees and/or
officers make out a case for an intra-corporate controversy.
ACTIONS INCAPALE OF PECUNIARY ESTIMATION:
- To determine if an action is one incapable of
pecuniary estimation, it is necessary to ascertain the
nature of the principal remedy sought. If it is primarily
for the recovery of a sum of money, it is capable of
pecuniary estimation. (Riano (2014), Civil Procedure
Volume 1, p. 154).
- If the basic issue is something other than the right to
recover a sum of money, or the money claim is merely
incidental to the relief, the action is incapable for
pecuniary estimation. (Ungria vs. CA, 654 SCRA 314.
EXAMPLES OF ACTIONS INCAPABLE OF PECUNIARY
ESTIMATION:
1. Action for reformation of an instrument;
2. Action for rescission of contract;
3. Action for Specific Performance;
4. Action for Declaration of Nullity of Documents,
Recovery of Shares, Partition, Damages and
Attorney’s Fees (Genesis Investment vs. Heirs of
Ebarasabal, GR 181622, November 20, 2013);
5. A complaint for expropriation (Barangay San Roque,
vs. Heirs of Pastor, 334 SCRA 127);
6. An action for annulment of a GOCC Resolution
(Polomolok Water vs. Pomolok General consumers
Assoc., 636 SCRA 647);
7. An action for the annulment of an extrajudicial
foreclosure sale of real property with an assessed
value of P50,000.00 located in Laguna (Riano, Supra,
p. 156);
8. An action for a writ of injunction is within the
jurisdiction of the RTC, it is an action incapable of
pecuniary estimation (Riano, supra);
MUNICIPAL TRIAL COURTS,
METROPOLITAN TRIAL COURTS,
MUNICIPAL CIRCUIT TRIAL COURTS:
DEMAND NOT EXCEEDING P300,000.00 or P400,000.00:
- MTC exercises exclusive original jurisdiction over civil
actions where the value of the personaly property,
estate or amount of the demand does not exceed
P300,000.00 outside Metro Manila, or not more than
P400,000.00 within Metro Manila (Sec. 1, RA 7691).
- The jurisdictional amount does not include the
following:
o Interest;
o Damages of whatever kind;
o Attorney’s fees;
o Litigation expenses; and
o Costs. (Sec. 33(1), NP 129)
EXCLUSIVE ORIGINAL JURISDICTION:
1. Over civil actions and probate proceedings, testate
and intestate, including the grant of provisional
remedies in proper cases, where the value of the
personal property, estate, or amount of the demand
does not exceed P300,000.00 outside Metro Manila
or, in Metro Manila where such personal property,
estate, or amount of the demand does not exceed
P400,000.00 exclusive of interest damages of
whatever kind, attorney's fees, litigation expenses,
 CIVIL PROCEDURE
Morillo Notes
and costs, the amount of which must be specifically
alleged;
2. Over cases of forcible entry and unlawful detainer;
3. All civil actions which involve title to, or possession
of, real property, or any interest therein where the
assessed value of the property or interest therein
does not exceed Twenty thousand pesos
(P20,000.00) or, in civil actions in Metro Manila,
where such assessed value does not exceed Fifty
thousand pesos (P50,000.00) exclusive of interest,
damages of whatever kind, attorney's fees, litigation
expenses and costs;
4. Over all violations of city or municipal ordinances
committed within their respective territorial
jurisdiction; and
5. Over all offenses punishable with imprisonment not
exceeding six (6) years irrespective of the amount of
fine, and regardless of other imposable accessory or
other penalties, including the civil liability arising from
such offenses or predicated thereon, irrespective of
kind, nature, value, or amount thereof. (RA 7691)
6. Over cases falling under the 1991 Rules on Summary
Procedure (Sec. 36, BP 129);
7. Over cases falling under the Rule of Procedure for
Small Claims Cases. (Sec. 2, AM no. 08-8-7-SC);
8. To grant provisional remedies in proper cases. (Sec.
33(1), BP 129).
DELEGATED JURISDICTION:
1. The MTC may be assigned by the Supreme Court to
hear and determine cadastral or land registration
cases covering lots where there is no controversy or
opposition, or contested lots the where the value of
which does not exceed One hundred thousand
pesos (P100,000.00).
2. Such value to be ascertained by;
a. The affidavit of the claimant; or
b. By agreement of the respective claimants if
there are more than one; or
c. From the corresponding tax declaration of
the real property.
3. The decision of the MTC in these cases shall be
appealable in the same manner as decisions of the
Regional Trial Courts. (as amended by R.A. No. 7691)
4. The jurisdiction is only a delegated one because it is
the RTC (formerly CFI) which normally has
jurisdiction ove dastral and land registration cases.
SPECIAL JURISDICTION:
- In the absence of all the Regional Trial Judges in a
province or city, any Metropolitan Trial Judge,
Municipal Trial Judge, Municipal Circuit Trial Judge
may hear and decide petitions for a writ of habeas
corpus or applications for bail in criminal cases in the
province or city where the absent Regional Trial
Judges sit. (Sec. 35, BP 129)
SANDIGANBAYAN
(Presidential Decree No. 1606)
JURISDICTION OVER:
a. Violations of Republic Act No. 3019, as amended,
otherwise, known as the Anti-Graft and Corrupt
Practices Act, and Republic Act No. 1379;
b. Crimes committed by public officers and employees
including those employed in government-owned or
controlled corporations, embraced in Title VII of the
Revised Penal Code, whether simple or complexed
with other crimes; and
c. Other crimes or offenses committed by public
officers or employees, including those employed in
government-owned or controlled corporations, in
relation to their office.
d. Vesting the Sandiganbayan original and exclusive
jurisdiction over all criminal and civil suits filed by the
Presidential Commission on Good Government.
(Executive Order No. 14)
JURISDICTION CONFERRED:
- The jurisdiction herein conferred shall be original and
exclusive if the offense charged is punishable by a penalty
higher than prision correccional, or its equivalent, except as
herein provided; in other offenses, it shall be concurrent
with the regular courts.
WHEN PRIVATE INDIVIDUALS ARE CHARGED:
- In case private individuals are charged as co-principals,
accomplices or accessories with the public officers or
employees including those employed in government-owned
or controlled corporations, they shall be tried jointly with
said public officers and employees.
COMMENTS ON SANDIGANBAYAN’S JURISDICTION:
- Where an accused is tried for any of the above offenses and
the evidence is insufficient to establish the offense charged,
he may nevertheless be convicted and sentenced for the
offense proved, included in that which is charged.
- Any provision of law or the Rules of Court to the contrary
notwithstanding, the criminal action and the corresponding
civil action for the recovery of civil liability arising from the
offense charged shall at all times be simultaneously
instituted with, and jointly determined in the same
proceeding by, the Sandiganbayan, the filing of the criminal
action being deemed to necessarily carry with it the filing of
the civil action, and no right to reserve the filing of such
action shall be recognized; Provided, however, that, in
cases within the exclusive jurisdiction of the
Sandiganbayan, where the civil action had therefore been
filed separately with a regular court but judgment therein
has not yet been rendered and the criminal case is hereafter
filed with the Sandiganbayan, said civil action shall be
transferred to the Sandiganbayan for consolidation and joint
determination with the criminal action, otherwise, the
criminal action may no longer be filed with the
Sandiganbayan, its exclusive jurisdiction over the same
notwithstanding, but may be filed and prosecuted only in
the regular courts of competent jurisdiction; Provided,
further, that, in cases within the concurrent jurisdiction of
the Sandiganbayan and the regular courts, where either the
criminal or civil action is first filed with the regular courts,
the corresponding civil or criminal action, as the case may
be, shall only be filed with the regular courts of competent
jurisdiction.
- Excepted from the foregoing provisions, during martial law,
are criminal cases against officers and members of the
armed forces in the active service.
- Until otherwise provided by law, all prosecution under this
Act shall be within the original jurisdiction of the
Sandiganbayan. (Sec. 3, RA 7080 or “An Act Defining and
Penalizing the Crime of Plunder”)
FAMILY COURTS
(Republic Act no. 8369)
CIVIL PROCEDURE 11
 CIVIL PROCEDURE
Morillo Notes
EXCLUSIVE ORIGINAL JURISDICTION:
1. Petitions for guardianship, custody of children,
habeas corpus in relation to the latter;
2. Petitions for adoption of children and the revocation
thereof;
3. Complaints for annulment of marriage, declaration of
nullity of marriage and those relating to marital status
and property relations of husband and wife or those
living together under different status and
agreements, and petitions for dissolution of conjugal
partnership of gains;
4. Petitions for support and/or acknowledgment;
5. Summary judicial proceedings brought under the
provisions of Executive Order No. 209, otherwise
known as the "Family Code of the Philippines";
6. Petitions for declaration of status of children as
abandoned, dependent o neglected children,
petitions for voluntary or involuntary commitment of
children; the suspension, termination, or restoration
of parental authority and other cases cognizable
under Presidential Decree No. 603, Executive Order
No. 56, (Series of 1986), and other related laws;
7. Petitions for the constitution of the family home;
8. Cases against minors cognizable under the
Dangerous Drugs Act, as amended;
9. Violations of Republic Act No. 7610, otherwise
known as the "Special Protection of Children Against
Child Abuse, Exploitation and Discrimination Act," as
amended by Republic Act No. 7658; and
10. Cases of domestic violence against:
a. Women - which are acts of gender based
violence that results, or are likely to result in
physical, sexual or psychological harm or
suffering to women; and other forms of
physical abuse such as battering or threats
and coercion which violate a woman's
personhood, integrity and freedom
movement; and
b. Children - which include the commission of
all forms of abuse, neglect, cruelty,
exploitation, violence, and discrimination
and all other conditions prejudicial to their
development.
If an act constitutes a criminal offense, the accused or
batterer shall be subject to criminal proceedings and the
corresponding penalties.
If any question involving any of the above matters should arise
as an incident in any case pending in the regular courts, said
incident shall be determined in that court.
BRAZA vs. CITY CIVIL REGISTRAR
GR no. 181174, December 4, 2009
In a Special proceeding for correction of entry under Rule
108 (Cancellation or Correction of Entries in the Original Registry),
the trial court has no jurisdiction to nullify marriages and rule on
legitimacy and filiation.
Rule 108 of the Rules of Court vis-à-vis Art. 412 of the Civil
Code charts the procedure by which an entry in the civil registry may
be cancelled or corrected. The proceeding contemplated therein
may generally be used only to correct clerical, spelling, typographical
and other innocuous errors in the civil registry. A clerical error is one
which is visible to the eyes or obvious to the understanding; an error
made by a clerk or a transcriber; a mistake in copying or writing, or a
harmless change such as a correction of name that is clearly
12 CIVIL PROCEDURE
misspelled or of a misstatement of the occupation of the parent.
Substantial or contentious alterations may be allowed only in
adversarial proceedings, in which all interested parties are impleaded
and due process is properly observed.
SHARI’A COURT
(Presidential Decree No. 1083)
PURPOSE OF ITS CREATION:
- Recognition of “the legal system of the Muslim in the
Philippines as part of the law of the land and seeks
to make Islamic institutions more effective.” (Art. 2,
PD 1083)
TYPES OF SHARI’A COURTS:
a. Shari’a District Courts; and
b. Shari’a Circuit Courts
A. SHARI’A DISTRICT COURTS:
EXCLUSIVE ORIGINAL JURISDICTION:
a. All cases involving custody, guardianship, legitimacy,
paternity and filiation arising under this Code;
b. All cases involving disposition, distribution and
settlement of the estate of the deceased Muslims,
probate of wills, issuance of letters of administration or
appointment of administrators or executors regardless
of the nature or the aggregate value of the property;
c. Petitions for the declaration of absence and death and
for the cancellation or correction of entries in the Muslim
Registries mentioned in Title VI of Book Two of this
Code;
d. All actions arising from customary contracts in which the
parties are Muslims, if they have not specified which law
shall govern their relations; and
e. All petitions for mandamus, prohibition, injunction,
certiorari, habeas corpus, and all other auxiliary writs
and processes in aid of its appellate jurisdiction.
CONCURRENT JURISDICTION: with existing civil courts, the
Shari’a District Court shall have original jurisdiction over:
a. Petitions by Muslims for the constitution of a family
home, change of name and commitment of an insane
person to an asylum;
b. All other personal and real actions not mentioned in
paragraph 1 (d) wherein the parties involved are
Muslims except those for forcible entry and unlawful
detainer, which shall fall under the exclusive original
jurisdiction of the Municipal Circuit Court; and
c. All special civil actions for interpleader or declaratory
relief wherein the parties are Muslims or the property
involved belongs exclusively to Muslims. (Art. 143, PD
1083)
APPELLATE JURISDICTION:
1. Shari'a District Courts shall have appellate
jurisdiction over all cases tried in the Shari'a Circuit
Courts within their territorial jurisdiction.
2. The Shari'a District Court shall decide every case
appealed to it on the basis of the evidence and
records transmitted as well as such memoranda,
briefs or oral arguments as the parties may submit.
(Art. 144, PD 1083)
FINALITY OF DECISIONS:
 CIVIL PROCEDURE
Morillo Notes
- The decisions of the Shari'a District Courts whether
on appeal from the Shari'a Circuit Court or not shall
be final. Nothing herein contained shall affect the
original and appellate jurisdiction of the Supreme
Court as provided in the Constitution.
B. SHARI’A CIRCUIT COURTS:
EXCLUSIVE ORIGINAL JURISDICTION:
1. All cases involving offenses defined and punished
under this Code.
2. All civil actions and proceedings between parties
who are Muslims or have been married in
accordance with Article 13 involving disputes relating
to:
a. Marriage;
b. Divorce recognized under this Code;
c. Betrothal or breach of contract to marry;
d. Customary dower (mahr);
e. Disposition and distribution of property
upon divorce;
f. Maintenance and support, and consolatory
gifts, (mut'a); and
g. Restitution of marital rights.
3. All cases involving disputes relative to communal
properties.
BARANGAY CONCILIATION PROCEEDINGS
(Secs. 399-422 of RA 7160)
IMPORTANCE OF BARANGAY CONCILIATION
PROCEEDINGS:
- No complaint, petition, action, or proceeding
involving any matter within the authority of the lupon
shall be filed or instituted directly in court or any
other government office for adjudication, unless
there has been a confrontation between the parties
before the lupon chairman or the pangkat, and that
no conciliation or settlement has been reached as
certified by the lupon secretary or pangkat secretary
as attested to by the lupon or pangkat chairman or
unless the settlement has been repudiated. (Sec.
412, RA 7160 (Local Government Code)
- Where the case is covered by the Katarungang
Pambarangay Law, the compulsory process of
arbitration required therein is a pre-condition for filing
a complaint in court. Where the complaint (a) did not
state that it is one of the excepted cases, or (b) did
not allege prior availment of said conciliation
process, or (c) did not have a certification that no
conciliation or settlement had been reached by the
parties, the case should be dismissed. (Agbayani vs.
CA, 674 SCRA 358)
any of the respondents actually resides, at the
election of the complaint.
3. All disputes involving real property or any interest
therein shall be brought in the barangay where the
real property or the larger portion thereof is situated.
4. Those arising at the workplace where the contending
parties are employed or at the institution where such
parties are enrolled for study, shall be brought in the
barangay where such workplace or institution is
located.
Objections to venue shall be raised in the mediation
proceedings before the punong barangay; otherwise,
the same shall be deemed waived. Any legal
question which may confront the punong barangay in
resolving objections to venue herein referred to may
be submitted to the Secretary of Justice, or his duly
designated representative, whose ruling thereon shall
be binding. (Sec. 409, RA 7160)
INITIATION OF PROCEEDINGS:
- Upon payment of the appropriate filing fee, any
individual, who has a cause of action against another
individual, involving any matter within the authority of
the lupon ,ay complain, orally or in writing, to the
chairman of the lupon. The chairman of the lupon is
the Brgy. Chairman. The fact that the complaint was
addressed to the barangay captain is of no moment
because he is the chairman of the Lupong
Tagapamayapa. (Magno vs. Velasco-Jacoba, 475
SCRA 584)
- Upon receipt of the complaint, the chairman shall
summon the respondents within the next working
day to appear. If the chairman fails in his mediation
efforts within 15 days from the first meeting, he shall
set a date to constitute the pangkat ng
Tagapagkasundo. (Sec. 410, RA 7160)

SUBJECT MATTERS FOR SETTLEMENT:

- The lupon of each barangay shall have the authority
to bring together the parties actually residing in the
same city or municipality for amicable settlement of
all disputes. (Torbela vs. Rosarion, 661 SCRA 633)

VENUE:
1. Disputes between persons actually residing in the
same barangay shall be brought for amicable
settlement before the lupon of said barangay.
2. Those involving actual residents of different
barangays within the same city or municipality shall
be brought in the barangay where the respondent or

CIVIL PROCEDURE 13

 CIVIL PROCEDURE
Morillo Notes
NOTE: “Proceedings are to be regarded as criminal
1997 RULES OF CIVIL PROCEDURE when the purpose is primarily punishment, and civil
(Amended by AM No. 19-10-20-SC or the 2019 Proposed when the purpose is primarily compensatory or
Amedments to the 1997 Procedure) remedial. (People vs. Godoy, 243 SCRA 64). The
purpose of special proceeding is to establish a
status, a right, or a particular fact. (Sec. 3, Rule 1,
RULE 1 ROC)
GENERAL PROVISIONS
SPECIAL PROCEEDINGS CASES:
Section 1: Title of the Rules 1. Settlement of Estate of deceased persons;
2. Escheat;
Title of the Rules –These Rules shall be 3. Guardianship and custody of children;
known and cited as the Rules of Court. 4. Trustees;
5. Adoption;
6. Rescission and revocation of adoption;
CONSTITUTIONAL MANDATE: (Art. VIII, Sec. 5(5), 1987
7. Hospitalization of insane person;
Constitution)
8. Habeas Corpus;
- The Supreme Court shall the power to promulgate
9. Change of name;
rules concerning the following;
10. Voluntary dissolution of corporation;
o Protection and enforcement of constitutional
11. Judicial approval of voluntary recognition of minor
rights;
natural children;
o Pleading, practice, and procedure in all
12. Constitution of family home;
courts;
13. Declaration of absence and death; and
o The admission to the practice of law;
14. Cancellation or correction of entries in the civil
o The Integrated Bar; and
registry. (Sec. 1, Rule 72, ROC)
o Legal assistance to the under-priviledged.
15. Arbitration under Sec. 22 of RA 876 or the Arbitration
- Such rules shall provide a simplified and inexpensive
Law;
procedure for speedy disposition of cases, shall be
16. Proceedings for recognition and enforcement of an
uniform for all courts of the same grade, and shall not
arbitration agreement or for vacation, setting aside,
diminish, increase, or modify substantive rights.
correction or modification of an arbitral award, and
- Rules of procedure of specials and quasi-judicial
any application with a court for arbitration assistance
bodies shall remain effective unless disapproved by
and supervision (Sec. 47, RA 9285);
the Supreme Court.
17. A petition for Writ of Amparo; (De Lima vs. Gatdula,
GR. 204528, February 19, 2013);
Section 2: In what courts applicable?
Writ of Amparo – a remedy by which a party seeks to establish a
status, a right or particular fact. It is not a civil nor a criminal
These Rules shall apply to all courts, except as action. (De Lima vs. Gatdula, supra)
otherwise provided by the Supreme Court. (Sec. 2,
Rule 1)
18. A VERIFIED PETITION of the bond filed by a parent
to exercise legal guardianship over the property of
APPLICATION OF THE ROC: his emancipated children. (Art. 225, Family Code)
- These Rules shall apply in all the courts, except as
otherwise provided by the Supreme Court. (Sec. 2,
SUPPLEMENTAL APPLICATION OF ORIDNARY CIVIL
Rule 1)
ACTIONS:
- The rules of ordinary civil actions have Suppletory
Section 3: Cases governed application in special proceedings. The rule is clear:
“In the absence of special provisions, the rules
Cases governed: provided for in ordinary actions shall be, as far as
- The ROC shall govern the procedure to be observed practicable, applicable in special proceedings”.(Sec.
in actions, civil or criminal and special proceedings. 2, Rule 72)
(Sec. 3, par. 1, Rule 1)
Section 4: In what cases not applicable
Distinction between “Civil Action, Criminal Action, and
Special Proceeding” NON-APPLICATION OF THE RULES OF COURT: These
CRIMINAL SPECIAL Rules shall not apply to:
CIVIL ACTION
ACTION PROCEEDING a. Election cases;
A party sues One which the A remedy by b. Land registration;
another for the State prosecutes which a party c. Cadastral;
enforcement or a person for an seeks to establish d. Naturalization and insolvency proceedings;
protection of a act or omission a status, a right, e. Other cases not herein provided for, except by
right, or the punishable by or a particular analogy or in a suppletory character and whenever
prevention or law. fact. practicable and convenient. (Sec. 4, Rule 1)
redress of a
wrong.
Source: Sec. 3, Rule 1

14 CIVIL PROCEDURE

 CIVIL PROCEDURE
Morillo Notes
Section 5: Commencement of action
COMMENCEMENT OF ACTION: A civil action is commenced
by:
a. Filing of the original complaint in court.
b. If an additional defendant is impleaded in a later
pleading, the action is commenced with regard to him
on the date of the filing of such later pleading,
irrespective of whether the motion for its admission, if
necessary, is denied by the court. (Sec. 5, Rule 1)
Section 6: Construction
LIBERAL CONSTRUCTION RULE:
- The Rules of Court shall be liberally construed in order
to promote their objective of securing a just, speedy,
and inexpensive disposition of every action and
proceedings. (Rule 1, Section 6, ROC)
- The rule means that the rigid application of the ROC
may be relaxed so that the ends of justice may be
better served, and that technicality or procedural
imperfections should not serve as basis of decisions.
(Cruz vs. CA, 476 SCRA 581; Polanco vs. Cruz, 579
SCRA 489)
- It also means that the ROC must not be applied rigidly
so as not to override substantial justice because the
ROC must be used to facilitate, not frustrate
substantial justice. (Canton vs. City of Cebu, 515
SCRA 441)
ORDINARY CIVIL ACTIONS
[Rule 2 to Rule 5]
RULE 2
CAUSE OF ACTION
Section 1: Ordinary civil action, basis of.
BASIS OF ORDINARY CIVIL ACTION:
- Every ordinary civil action must be based on a cause
of action. (Sec. 1, Rule 2, ROC)
DEFINITION OF “ACTION”:
- An action is the legal and formal demand of one’s
right from another person made and insisted upon in a
court of justice. (Bouvier’s law Dictionary)
- In the Philippines, the terms “action” and “suit”
synonymous but the determinative operative act
which convert claims into an “action” or ”suit” is the
filing of the same with a court of justice. (Lopez vs.
Compania de Seguros, 16 SCRA 855)
DIFFERENCE BETWEEN ACTION AND CAUSE OF
ACTION:
ACTION CAUSE OF ACTION
The suit filed in court for the The basis of the action filed.
enforcement or protection of (Sec. 1, Rule 2)
a right, or the prevention or
redress of a wrong. (Sec.
3(1), Rule 1)
Section 2: Cause of action, defined
DEFINITION OF CAUSE OF ACTION:
- It is the act or omission by which a party violates the
rights of another. (Sec. 2, Rule 2)
ELEMENTS OF A CAUSE OF ACTION:
1. There exist a right in favor of the plaintiff;
2. The defendant is bound to respect or not to violate
the right of the plaintiff: and
3. By act or omission, the defendant violated such right
which constitutes breach of obligation on the part of
the defendant. (Anchor Savings vs. Furigay, 693
SCRA 394)
NOTE: Although the first two elements may exists, a cause of
action arises only upon the occurrence of the last elements,
giving the plaintiff the right to maintain an action in court for
recovery of damages or other appropriate relief. (Turner vs.
Lorenzo Shipping, 636 SCRA 13)
CAUSE OF ACTION IN CERTAIN CASES:
Administrative ● The issue is not whether the complainant
has a cause of action against respondent,
Cases
but whether the respondent has breached
the norms and standards of the office
(Mutia vs. Pacariem, 494 SCRA 448)
Based on ● A cause of action based on breach of
Contracts contract merely requires the following
elements: (a) the existence of a contract;
and (b)
● In breached of contract of carriage, the
action can be prosecuted merely by
proving the (a) existence of the contract,
and (b) that the obligor failed to transport
the passenger safely to his destination.
(Calalas vs. CA, 332 SCRA 358)
Sum of money ● Where the cause of action rests on a
based on a promissory note, filing the action before
the due date of the obligation would be
promissory
premature because the obligation is one
note with a period. He cannot be charged
before the due date, unless he loses the
right to make use of the period. (Art.
1196-1198, NCC)
● A cause of action for a sum of money
based on a promissory note requires an
allegation that a debt exists.
Unlawful ● The cause of action does not accrue
Detainer unless there is a demand to vacate and
such is not complied with. However, if the
suit is based on expiration of the lease,
notice and demand are not required.
(Labastida vs. CA, 287 SCRA 662)
Forcible Entry ● Plaintiff must allege in the complaint and
prove that he was in prior physical
possession of the property in dispute until
he was deprived thereof by the defendant
by any means of force, intimidation,
threat, strategy, or stealth. (Sarmienta vs.
Manalite Homeowners Assoc., 632 SCRA
538)
Malicious Plaintiff must prove the following:
Prosecution 1. The prosecution did occur, and the
defendant was himself the prosecutor
or that he instigated its
commencement;
2. The criminal action finally ended with
an acquittal;
3. In bringing the action, the prosecutor
acted without probable cause; and
4. The prosecution was impelled by
CIVIL PROCEDURE 15
 CIVIL PROCEDURE
Morillo Notes
malice. (Magbanua vs. Junsay, 515
SCRA 419)
Environmental ● The complaint shall state that is is an
Cases environmental case, and the law involved.
(Sec. 3, Rule 2, Rules of Procedure for
Environmental cases)
FAILURE TO STATE A CAUSE OF ACTION (TEST OF
SUFFICIENCY OF THE ALLEGATIONS):
- Mere existence of a cause of action is not sufficient
for a complaint to prosper. Even if the plaintiff has a
cause of action against the defendant, the complaint
may be dismissed if the complaint or the pleading
asserting the claim “states no cause of action” (Sec.
1(g), Rule 16)
- The test of the sufficiency of the facts alleged in the
complaint Whether or not, admitting the facts
alleged, the court can render a valid judgment upon
the same in accordance with the prayer of the plaintiff.
o The focus is on the sufficiency of the material
allegations.
o Failure to make a sufficient allegations of a
cause of action in the complaint warrants its
dismissal (Anchor Savings vs. Furigay, supra)
EFFECT OF A FINDING THAT THE COMPLAINT STATES A
CAUSE OF ACTION:
- It does not necessarily mean that the complaint is
meritorious but it shall only reinstate the complaint
and the hearing of the case for presentation of
evidence by the parties.” (Manaloto, vs. Veloso III, 632
SCRA 347)
FAILURE TO STATE A CAUSE OF ACTION vs. LACK OF A
CAUSE OF ACTION:
FAILURE TO STATE A LACK OF A CAUSE OF
CAUSE OF ACTION: ACTION:
An insufficiency in the allegations Refers to the failure to prove or
in the complaint. establish by evidence that one
has a cause of action.
Ground for dismissal Not ground for dismissal
TEST OF THE SUFFICIENCY OF THE STATEMENT OF A
CAUSE OF ACTION:
- The test is whether or not admitting the facts alleged,
the court could render a valid verdict in accordance
with the prayer in the complaint. (Misamis Occidental
II Cooperative vs. David, 468 SCRA 63)
- A complaint is said to assert a sufficient cause of
action if, admitting what appears solely on its face to
be correct, the plaintiff would be entitled to the relief
prayed for.
- Accordingly, if the allegations furnish sufficient basis
by which the complaint can be maintained, the same
should not be dismissed regardless of the defenses
that may be averred by the defendants” (Heirs of
Magdaleno Ypon, vs. Ricaforte, GR 198680, July 8,
2013)
ALLEGATIONS IN THE COMPLAINT DETERMINE
WHETHER OR NOT THE COMPLAINT STATES A CAUSE
OF ACTION:
- The court should not consider matters that are outside
of the complaint in determining whether or not a
complaint states a cause of action. The court should
only consider the allegations in the complaint and
there is no need to require the presentation of
16 CIVIL PROCEDURE
evidence to determine whether or not the complaint
states a cause of action because the allegations in the
complaint will disclose the compliance or non-
compliance of the required statement of the cause of
action. (Riano (2014), Civil Procedure Vol. 1, p. 248)
- The sufficiency of the statement of the cause of action
must appear on the face of the complaint and its
existence may be determined only by the allegations
in the complaint, consideration of the other facts
being proscribed and any attempt to prove
extraneous circumstances not being allowed.
(Viewmaster Construction Corp. vs. Roxas, 335 SCRA
540)
IMPORTANCE OF THE ALLEGATIONS IN THE
COMPLAINT:
- The designation or caption is not controlling, more
than the allegations in the complaint themselves are,
for it is not even an indispensable part of the
complaint. (De la Cruz, vs. CA, 510 SCRA 103)
- In one case, the complaint filed in the RTC was
captioned “Collection of a Sum of Money with
Damages.” The complaint alleged that he demanded
payment of the rentals in arrears and for the
defendant to vacate the property. The SC held that
the nature of the allegations make out a cause of
action for unlawful detainer, not an action for
collection of sum of money. Moreover, the RTC has
no jurisdiction over the case because it is an unlawful
detainer suit which is cognizable under the jurisdiction
of the MTC. (Barrazona vs. RTC Br. 61, Baguio City,
486 SCRA 555)
Section 3: One suit for a single cause of action
PROHIBITION AGAINST SPLITTING A SINGLE CAUSE OF
ACTION:
- Splitting a single cause of action is not allowed by the
ROC under Sec. 4, Rule 2. (“A party may not institute
more than one suit for a single cause of action”)
- The practice of splitting a single 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.
- A cause of action in a counterclaim and again invoke
it is a complaint against the same person or party,
would be splitting a cause of action which is not
sanctioned by the ROC. (Mariscal vs. CA, 311 SCRA
51)
- An action for forcible entry should not include not only
the plea for restoration of possession, but also claims
for damages arising out of the forcible entry. The
claim for damages cannot be filed separately.
(Progressive Development Corp. vs. CA, 301 SCRA
637)
- A bank cannot file a civil action against the debtor for
the collection of the debt and, subsequently file an
action to foreclose the mortgage. This would be
splitting a single cause of action. (Danao vs. CA, 154
SCRA 446)
Section 4: Splitting a single cause of action
SPLITTING A SINGLE CAUSE OF ACTION; MEANING:
 CIVIL PROCEDURE
Morillo Notes
- It is the act of instituting two or more suits on the
basis of the same cause of action. (Sec. 4, Rule 2,
ROC)
- In splitting a cause of action, the pleader divides a
single cause of action, claim or demand into two or
more parts and brings a suit for one of such parts with
the intent to reserve the rest for another separate
action. (Quadra vs. CA, 497 SCRA 221)
- To interpose a cause of action in a counterclaim and
again invoke it in a complaint against the same person
or party, would be splitting a cause of action.
(Mariscal vs. CA, 311 SCRA 51)
TESTS TO ASCERTAIN WHETHER TWO SUITS RELATE
TO A SINGLE OR COMMON CAUSE OF ACTION:
a. Whether the same evidence would support and
sustain both the first and second causes of action
(aka the “same-evidence” test);
b. Whether the defenses in one case may be used to
substantiate the complaint in the other;
c. Whether the cause of action in the second case
existed at the time of the filing of the first complaint.
(Umale vs. Canoga Park, 654 SCRA 155)
EFFECT OF SPLITTING A SINGLE CAUSE OF ACTION:
- The filing of one or a judgment upon the merits in any
one is available as a ground for the dismissal of the
others” (Sec. 4, Rule 2, ROC)
o The remedy of the defendant is to file a
motion to dismiss.
o Therefore, if the first action is pending when
the second action is filed, the latter may be
dismissed based on litis pendencia. If a final
judgment had been rendered in the first
action when the second action is filed, the
latter may be dismissed based on res
judicata.
Section 5: Joinder of causes of action
JOINDER OF CAUSES OF ACTION:
- A party may in one pleading assert, in the alternative
or otherwise, as many causes of action as he may
have against an opposing party, subject to the
following conditions:
a. The party joining the causes of action shall
comply with the rules on joinder of parties;
b. The joinder shall not include special civil
actions or actions governed by special rules;
c. Where the causes of action are between the
same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the
RTC provided one of the causes of action falls
within the jurisdiction of said court and the
venue lies therein; and
d. Where the claims in all the causes of action are
principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction.
(Sec. 5, Rule 2)
Section 6: Misjoinder of causes of action
MISJOINDER OF CAUSES OF ACTION:
- Misjoinder of causes of action is not a ground of
dismissal of an action.
- A misjoined cause of action may, on motion of a party
or on the initiative of the court, be severed and
proceeded with separately. (Sec. 6, Rule 2)
RULE 3
PARTIES TO CIVIL ACTIONS
Section 1: Who may be parties; plaintiff and defendant
PARTIES TO A CIVIL ACTION:
PLAINTIFF DEFENDANT
Refers to the claiming party, the Refers to the original defending
counter-claimant, the cross- party, the defendant in a
claimant, or the third (fourth, counterclaim, the cross-
etc.)-party plaintiff. defendant, or the third (fourth,
etc.)-party defendant.
Source: Sec. 1, Rule 3
WHO MAY BE PARTIES:
- Only (1) natural or (2 )juridical persons, or (3) entities
authorized by law may be parties in a civil action.
(Sec. 1, Rule 3)
JURIDICAL PERSON TO A CIVIL ACTION:
1. The State and its political subdivisions;
2. Other corporations, institutions and entities for public
interests or purpose, created by law; and
3. Corporation, partnerships and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member. (Art. 44, NCC)
ENTITIES AUTHORIZED BY LAW TO BE PARTIES IN A
CIVIL ACTION:
1. A corporation by estoppel is precluded from denying
its existence the members thereof can be sued and be
held liable as general partners. (Sec. 21, Corporation
Code);
2. A contract of partnership having a capital of
P3,000.00 or more but which fails to comply with the
registration requirements is nevertheless in relation to
Art. 1768, NCC;
3. The estate of a deceased person is a juridical entity
that has a personality of its own since it has a
personality of its own, it may be a party to an action
(Nazareno vs. CA, 343 SCRA 637);
4. A legitimate labor organization may sue and be sued
in its registered name. (Art. 242(e), LCP);
5. A dissolved corporation may prosecute and defend
suits by ir against it provided that the suits (i) occur
within 3 years after its dissolution, and (ii) closure of its
affairs. (Sec. 122, Corporation Code)
AVERMENT OF CAPACITY TO SUE OR BE SUED:
- Facts showing the capacity of a party t sue or be
sued, or the authority of a party to sue or be sued in a
representative capacity, or the legal existence of an
organized association of persons that is made a party,
must be averred. (Sec. 4, Rule 8)
Section 2: Parties in interest
REAL PARTY IN INTEREST:
- The party who stands to be benefited or injured by the
judgment in the suit; or
- The party entitled to the avails of the suit. (Sec. 2,
Rule 1)
CIVIL PROCEDURE 17
 CIVIL PROCEDURE
Morillo Notes
- Unless otherwise authorized by law or these Rules,
every action must be prosecuted or defended in the
name of the real party in interest. (Sec. 2, Rule 1)
- To be a real party in interest, the interest must be
‘real’ which is a present substantial interest as
distinguished from a mere expectancy or a future,
contingent subordinate or consequential interest.
(Rayo vs. Metrobank, 539 SCRA 571)
- It is an interest that is material and direct, as
distinguished from a mere incidental interest. (Mayor
Rhustom Dagadag vs. Michael Tongnawa, 450 SCRA
437)
DOCTRINE OF LOCUS STANDI:
- It requires a litigant to have a material interest in the
outcome of a case.
- In private suits, it requires a litigant to be a “real party-
in-interest” which is the party who stands to be
benefited or injured by the judgment in the suit or the
party entitled to the avails of the suits. (United Church
of Christ in the Philippines vs. Bradford United Church
of Christ, Inc, 674 SCRA 92, june 20, 2012)
- In non-private suits, the doctrine requires that the one
who sues must show that he has sustained injury or
will sustain a direct injury as a result of a government
action, or has a material interests in the issue affected
by the challenged official act. (Fina vs. Agra, 6919
SCRA 196)
PROSECUTION/DEFENSE OF AN ACTION IN THE NAME
OF THE REAL PARTY IN INTEREST:
- Every action must be prosecuted and defended in the
name of the real party in interest, unless otherwise
authorized by law or the Rules of Court. (Sec. 2, Rule
3)
LOCUS STANDI vs. REAL PARTY-IN-INTEREST:
LOCUS STANDI REAL PARTY IN INTEREST
Non-Private Cases Private Cases
This requires an analysis of Involves only a question on
broader policy concerns whether a party would be
benefited or injured by the
judgment.
Source: Baltazar vs. Ombudsman, 510 SCRA 74; Kilosbayan,
Inc. vs. Morato, 246 SCRA 540)
Section 3: Representatives as parties
REPRESENTATIVE PARTIES:
- Where the action is allowed to be prosecuted or
defended by a representative or someone acting in a
fiduciary capacity (like a trustee of an express trust, a
guardian, an executor or administrator, or a party
authorized by law), the beneficiary shall be included in
the title of the case and shall be deemed to be the real
party in interest. (Sec. 3, Rule 3)
SUIT BY AN AGENT:
- An agent acting in his own name and for the benefit of
an undisclosed principal may sue or be sued without
joining the principal except when the contract involves
things belonging to the principal. (Sec. 3, Rule 3)
Section 4: Spouses as parties
SPOUSES AS PARTIES:
18 CIVIL PROCEDURE
- Husband and wife shall sue or be sued jointly, except
as provided by law. (Sec. 4, Rule 3)
INSTANCES WHEN A SPOUSE IS NOT JOINED IN A SUIT:
- An instance when a spouse need not be joined in a
suit involving the other is when the litigation pertains
to an exclusive property of a spouse. In such a case,
the owner-spouse may appear alone in court to
litigate with regard to the same.(Art. 111, Family
Code)
- There may be instances when, despite the
separation of property, one spouse may end up
being sued and held answerable for the liabilities
incurred by the other spouse because “The liability of
the spouses to creditors for family expenses shall,
however, be solidary. (Art. 146, Family Code)
Section 5: Minor or incompetent persons
MINOR OR INCOMPETENT PERSONS:
- A minor or a person alleged to be incompetent, may
sue or be sued, with the assistance of his father,
mother, guardian, or if he has none, a guardian ad
litem. (Sec. 5, Rule 3)
Section 6: Permissive joinder of parties
PERMISSIVE JOINDER OF PARTIES:
- All persons in whom or against whom any right to
relief in respect to or arising out of the same
transaction or series of transactions is alleged to exist,
whether jointly, severally, or in the alternative, may,
except as otherwise provided in these Rules, join as
plaintiffs or be joined as defendants in one complaint,
where any question of law or fact common to all such
plaintiffs or to all such defendants may arise in the
action; but the court may make such orders as may
be just to prevent any plaintiff or defendant from being
embarrassed or put to expense in connection with any
proceedings in which he may have no interest. (Sec.
6, Rule 3)
Section 7: Indispensable parties
DEFINITION OF AN INDISPENSABLE PARTY:
- It is a real party without whom no final determination
can be had of an action. (Sec. 7, Rule 3)
- It is a party who has such an interest in the
controversy or subject matter that a final adjudication
cannot be made, in his absence, without injuring or
affecting that interest, a party who has not only an
interest in the subject matter of the controversy, but
also has an interest of such nature that a final decree
cannot be made without affecting his interest or
leaving the controversy in such a condition that its
final determination may be wholly inconsistent with
equity and good conscience. (Lucman vs. Malawi, 511
SCRA 268);
- An indispensable party is a person in whose absence
there cannot be a determination between the parties
already before the court which is effective, complete,
or equitable. Further, an indispensable party is one
who must be included in an action before it may
properly go forward. (Lucman vs. Malawi, supra)
EXAMPLES OF INDISPENSABLE PARTY:
 CIVIL PROCEDURE
Morillo Notes
1. The person whose right to the office is challenged is
an indispensable party. No action can proceed
unless he is joined. (Galarosa vs. Valencia, 227 SCRA
726)
2. In an action for reconveyance of a property, the
persons against whom reconveyance is asserted are
indispensable parties. (Lozano vs. Balesteros, 195
SCRA 681)
COMPULSORY JOINDER OF INDISPENSABLE PARTIES:
- Generally, a joinder of parties is permissive (under
Sec. 6, Rule 3). However, the joinder of a party
become compulsory when the one involved is an
indispensable party. (Sec. 7, Rule 3; Crisologo vs.
JEWN Agro-Industrial Corporation, GR no. 196894,
March 3, 2014)
- The joinder of indispensable parties is mandatory and
courts cannot proceed without their presence (De
Castro vs. CA, 384 SCRA 607)
- If there is a failure to implead an indispensable party,
any judgment rendered would have no effectiveness.
A decision valid on its face, cannot attain finality
where there is want of indispensable parties. (Go vs.
Distinction Properties Development, Inc., 671 SCRA
461)
- The joinder of indispensable parties in mandatory.
Without the presence of indispensable parties to the
suit, the judgment of the court cannot attain real
finality. Strangers to a care are not bound by the
judgment rendered by the court. (Lucman vs. Malawi,
supra)
DISMISSAL FOR FAILURE TO IMPLEAD AN
INDISPENSABLE PARTY:
- Since the joinder of the indispensable parties is
compulsory, the action should be dismissed when
indispensable parties are not impleaded or are not
before the court. The absence of an indispensable
parties renders all subsequent actions of trial court
null and void for want of authority to act, not only as
to the absent parties but even as to those present.
(MWSS, CA, 297 SCRA 287)
- The Court, in its rulings, did not hold that the failure to
join an indispensable party results in the outright
dismissal of action. An outright dismissal is not the
immediate remedy authorized by the ROC because
the non-joinder (or misjoinder) of parties is not a
ground for dismissal of action. Instead, parties may be
dropped or added by the court on motion of any party
or on its own initiative at any stage of the action and
on such terms as are just. (Sec. 11, Rule 3)
- An immediate dismissal of the action when
indispensable parties are not impleaded is not the
immediate procedural remedy. (Pamplona Plantation
Co. vs. Tinghil., 450 SCRA 421)
Section 8: Necessary parties
DEFINITION OF NECESSARY PARTY:
- It is one who is not indispensable but who ought to be
joined as a party to the case if complete relief is to be
accorded as to those already parties, or for a
complete determination or settlement of the claim
subject of the action. (Sec. 8, Rule 3)
EXAMPLE:
- A transferee of a property pendete lite is not an
indispensable party, as it would, in any event, be
bound by the judgment against the predecessor.
(Santiago Land Development Corporation vs. CA,
267 SCRA 79)
DIFFERENCE BETWEEN AN INDISPENSABLE PARTY AND
NECESSARY PARTY:
INDISPENSABLE PARTIES NECESSARY
PARTIES
Must be joined under any and all Presence not mandatory
conditions; because his interest is separable
There can be no final decree There can be final decree even
without joining an indispensable without a necessary party;
party;
Source: Borlasa vs. Polistico, 47 Phil. 345; Chua vs. Torres,
468 SCRA 358
Section 9: Non-joinder of necessary
parties to be pleaded
DUTY OF PLEADER IF A NECESSARY PARTY IS NOT
JOINED; EFFECT:
- Whenever, in any pleading in which a claim is
asserted, a necessary party is not joined, the pleader
shall set forth the name of the necessary party, if his
name is known, and state why such party is omitted.
(Sec. 9, Rule 3)
WHEN COURT MAY ORDER JOINDER OF A NECESSARY
PARTY:
- If the reason given for the non-joinder of the
necessary party is found by the court to be
unmeritorious, it may order the pleader to join the
omitted party if jurisdiction over his person may be
obtained. (Sec. 9, Rule 3)
EFFECT OF FAILURE TO COMPLY WITH THE ORDER OF
THE COURT:
- The failure to comply with the order of the court to
include a necessary party, without justifiable cause,
shall be deemed a waiver of the claim against such
party. (Sec. 9, Rule 3)
EFFECT OF A JUSTIFIED NON-INCLUSION OF A
NECESSARY PARTY:
- The non-inclusion of a necessary party does not
prevent the court from proceeding in the action, and
the judgment rendered therein shall be without
prejudice to the rights of such necessary party. (Sec.
9, Rule 3)
ILLUSTRATIONS:
“A” and “B” are the signatories to a promissory note
which reads: “We promise to pay to the order of “C”
P1,000,000.00 on February 27, 2014.” On the due date of the
obligation, the debtors failed to pay despite demand.
Q: May “C” sue “A” alone?
A: Yes, “C” may sue “A” alone. The cause of action against
“A” is separate and distinct from the cause of action
against “B”. The tenor of the note discloses merely a joint
obligation. Being debtors in a joint obligation, they are
liable separately for P500,000.00 each.
CIVIL PROCEDURE 19
 CIVIL PROCEDURE
Morillo Notes
Q: Is “A” (in a suit by “C” against him) a necessary party or
an indispensable party?
A: “A” is an indispensable party. Without him being impleaded
as defendant, “C” cannot collect the P500,000.00 share of
“A:. Without “A”, there cannot be a final determination of
the case against him.
Q: In the suit by “C” against “A”, is “B” a necessary or an
indispensable party?
A: “B” is not an indispensable party but he is a necessary
party. “C” can collect from “A” P500,000.00 without
impleading “B”. He is only a necessary party because,
without “B” being made a party to the action, “C” cannot
have a complete relief.
Q: Assuming that the debtors bound themselves to pay
the P1 Million solidarily, would “B” be an indispensable
party or a necessary party in a suit by “C” against “A”?
A: “B” would not be a necessary party. Complete relief could
be had by “C” without joining “B” because the obligation is
solidary. “A” could be ordered to pay the entire obligation
of P1Million. Neither is “B” an indispensable party. There
could be complete and final determination of the action for
a sum of money without “B” being joined.
Solidarity does not make a solidary obligor (debtor) an
indispensable party in a suit filed by the creditor against
another solidary debtor. (Republic vs. Sandiganbayan, 173
SCRA 73)
Section 10: Unwilling co-plaintiff
UNWILLING CO-PLAINTIFF:
- An unwilling co-plaintiff is a party who is supposed to
be a plaintiff but whose consent to be joined as a
plaintiff cannot be obtained as when he refuses to be
a party to the action.
- Unwilling co-plaintiff may be made a defendant, and
the reason therefore shall be stated in the complaint.
(Sec. 10, Rule 3)
Section 11: Misjoinder and non-joinder of parties
DIFFERENCE BETWEEN MISJOINDER AND NON-
JOINDER:
MISJOINED PARTY NON-JOINED PARTY
When a party is made a When a party is supposed
party to the action although to be joined but is not
he should not be impleaded. impleaded in the action.
Source: Riano (2014), Civil Procedure Vol.1, p. 285
RULE ON MISJOINDER AND NON-JOINDER OF PARTIES:
- Neither misjoinder nor non-joinder of parties is
ground for dismissal of an action. Parties may be
dropped or added by order of the court on motion of
any party or on its own initiative at any stage the
action and on such terms as are just. Any claim
against a misjoined party may be severed and
proceeded with separately. (Sec. 11, Rule 3)
20 CIVIL PROCEDURE
- Misjoinder of parties does not involve questions of
jurisdiction and, is not a ground for
dismissal.(Republic vs. Herbieto, 459 SCRA 183)
- Even if neither misjoinder nor non-joinder is a ground
for dismissal of 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 complaint under Sec. 3, Rule
17 of the Rules of Court.
- The rule on misjoinder or non-joinder of parties does
not comprehend whimsical and irrational dropping or
adding of parties in a complaint. what it really
contemplates is erroneous or mistaken non-joinder
and misjoinder of parties. The rule presupposes that
the original inclusion had been made in the honest
conviction that it was proper and the subsequent
dropping is requested because it has turned out that
such inclusion was a mistake. And this is the reason
why the rule ordains that the dropping is “on such
terms as are just”. (Lim Tan Hu vs. Ramolete, 66
SCRA 425)
Section 12: Class suit
CONCEPT OF A CLASS SUIT:
- It is an action where one or more may sue for the
benefit of all if the requisites for said action are
complied with. (Mathay vs. Consolidated Bank &
Trust Company, 58 SCRA 559)
REQUISITES OF CLASS SUITS:
1. The subject matter if the controversy must be of
common or general interest to many persons:
2. The persons are so numerous that it is impracticable
to join all the parties;
3. The parties actually before the court are sufficiently
numerous and representative as to fully protect the
interests of all concerned; and
4. The representatives sue or defend for the benefit of
all. (Sec. 12, Rule 3)
COMMON OR GENERAL INTEREST OF THE SUBJECT
MATTER:
- The ‘subject matter’ of the action is meant the
physical, the things real or personal, the money,
lands, chattels, and the like, in relation to the suit
which is prosecuted and not the delict or wrong
committed by the defendant. (Mathay vs.
Consolidated Bank, supra)
- What is required by the ROC is a common or general
interest in the subject matter of the litigation and not
commonality of interest in the questions involved in
the suit. (Supra)
DISMISSAL OR COMPROMISE OF A CLASS SUIT:
- A class suit shall not be dismissed or compromise
without the approval of the court. (Sec. 2, Rule 17)
- This provision is obviously intended to protect the
common interests of all those who initiated the class
suit.
Section 13: Alternative defendants
ALTERNATIVE DEFENDANTS:
 CIVIL PROCEDURE
Morillo Notes
- Where the plaintiff is uncertain against who of several
persons he is entitled to relief, he may join any or all
of them as defendants in the alternative, although a
right to relief against one may be inconsistent with a
right of relief against the other. (Sec. 13, Rule 3)
- Plaintiff may sue the shipping company and the
arrastre operator alternatively for the recovery of
damages to goods shipped through a maritime
vessel. (Rizal Surety vs. Manila Railroad Corp., 70
SCRA 187)
ILLUSTRATION:
Q: Assume that Mr. X (a pedestrian) was injured in the
collision of 2 vehicles. He suffered injuries but does not
know the certainty which vehicle caused the mishap.
What should Mr. X do if he wants to sue?
A: He should sue the vehicle drivers/owners in the
alternative.
Q: P sent some goods to D pursuant to a contract. The
goods were delivered to E (the known agent of D). D
did not pay P. D contends that he has not received the
goods. P claims otherwise and insists that D had
received the goods. Should P sue D or should he sue
E?
A: P should sue both but in the alternative.
Section 14: Unknown identity or
name of defendant
UNKNOWN IDENTITY OR NAME OF DEFENDANT:
- Whenever the identity or name of a defendant is
unknown, he may be sued as the unknown owner
heir devisee, or by such other designation as the
case may require, when his identity or true name is
discovered, the pleading must be amended
accordingly. (Sec. 14, Rule 3)
Section 15: Entity without juridical
personality as defendant
ENTITY WITHOUT JURIDICAL PERSONALITY AS
DEFENDANT:
- When two or more persons not organized as an
entity with juridical personality enter into a
transaction, they may be sued under the name by
which they are generally or commonly known. (Sec.
15, Rule 3)
- In the answer of such defendant, the name and
addresses of the persons composing said entity
must all be revealed. (Sec. 15, Rule 3)
Section 16: Death of party; duty of counsel
EFFECT OF DEATH OF A PARTY ON THE ATTORNEY-
CLIENT RELATIONSHIP:
- The death of the client extinguishes the attorney-
client relationship and divests the counsel of his
authority to represent the client. Accordingly, a dead
client has no personality and cannot be represented
by an attorney (Lavina vs. CA, 171 SCRA 691)
- Neither does he become the counsel of the heirs of
the deceased unless his services are engaged by
said heis. (Lawas vs. CA, 146 SCRA 173)
DUTY OF COUNSEL UPON THE DEATH OF HIS CLIENT:
- Whenever a party to a pending action dies, and the
claim is not thereby extinguished, it shall be the duty
of his counsel to inform the court within thirty (30)
days after such death of the fact thereof, and to give
the name and address of his legal representative or
representatives. Failure of counsel to comply with his
duty shall be a ground for disciplinary action. (Sec.
16, Rule 3)
ACTION OF COURT UPON NOTICE OF DEATH; EFFECT
OF DEATH ON THE CASE:
- Upon receipt of the notice of death, the court shall
determine whether or not the claim is extinguished
by such death. If the claim survives, the court shall
order the legal representative/s of the deceased to
appear and be substituted for the deceased within
30 days from notice. (Sec. 16, Rule 3)
- The substitution of the deceased would not be
ordered by the court in cases where the death of the
party would extinguish the action because
substitution is proper only when action survives.
(Aguas vs. Llemos, 5 SCRA 959)
- Under the present rule, the heir of the deceased may
be allowed to be substituted for the deceased. In
such a case, there is no more need to require the
appointment of an executor or administrator. If there
is an heir and the heir is a minor, the court may
appoint a guardian ad litem. (Sec. 16, Rule 3)
- It is possible that the court may order the opposing
party to procure the appointment of an executor or
administrator of the estate of the deceased. This may
happen, in any of the following situations:
- Counsel for the deceased does not name a
legal representative, or
- There is a representative named but he fails
to appear within the specified period.
- All court charges in procuring such appointment, if
defrayed by the opposing party, may be recovered
as costs. (Sec. 16, Rule 3)
WHEN THERE IS NO NEED TO PROCURE AN EXECUTOR
OR ADMINISTRATOR:
- The heirs of the deceased may be allowed to be
substituted for the deceased, without requiring the
appointment of the administrator. (Sec. 16, Rule 3)
- However, if a legal representative fails to appear
within the specified period, the court may order the
opposing counsel, within a specified period to
procure the appointment of an administrator or
executor who shall immediately appear for the estate
of the deceased. (San Juan vs. Cruz, 497 SCRA 410)
- The Court ruling in LAWAS vs. CA (146 SCRA 173
which provides that the priority is given to the legal
representative of the deceased (the executor or
administrator) and that it is only in case of
unreasonable delay in the appointment of an
executor or administrator, or in cases where the heirs
resort to an extrajudicial settlement of the estate that
the court may adopt the alternative of allowing the
heirs of the deceased to be substituted for the
deceased, is no longer true. (San Juan vs. Cruz,
supra)
CIVIL PROCEDURE 21
 CIVIL PROCEDURE
Morillo Notes
- Therefore, the heirs do not need to first secure the
appointment of an administrator of the estate of the
deceased because from the very moment of death,
they stepped into the shoes of the deceased and
acquired his rights as devisee/legatee. Said heirs
may designate one or some of them as their
representative before the trial court. (San Juan vs.
Cruz, supra)
NO REQUIREMENT FOR SERVICE OF SUMMONS:
- Service of summons is not required to effect a
substitution. Nothing in Sec. 16, Rule 3 mandates
service of summons. Instead of summon, the court
shall (under the authority of the same provision) order
the legal representative of the deceased to appear
and be substituted for the said deceased within 30
days from notice. (Riano (2014), Civil Procedure Vol.
1, p. 288)
- By virtue of the same rule, it is significant to
remember that it is not the amendment of the
pleading, but the order of substitution and is service
that are the initial steps towards the substitution of
the deceased by his representative or heir. (Riano
(2014), supra)
PURPOSE AND IMPORTANCE OF SUBSTITUTION OF THE
DECEASED:
- To protect the right of every party to due process;
- To ensure that the deceased would continue to be
properly represented in the suit through the duly
appointed legal representative of the estate. (Torres
vs. CA, 278 SCRA 811)
NON-COMPLIANCE WITH THE RULES ON
SUBSTITUTION:
- It renders the proceedings of the trial court infirm
because the court acquired no jurisdiction over the
person of the legal representative of the heirs of the
deceased because no man should be affected by a
proceeding to which he is a stranger. (Brioso vs. Rili-
Mariano, 396 SCRA 549)
- However, in an ejectment case, the non-substitution
of the deceased by his legal representatives because
of the failure of counsel to inform the court of the
death of his client, does not deprive the court of
jurisdiction. → The decision of the court is,
nevertheless, binding upon the successor-in-interest
of the deceased. A judgment in an ejectment case
may be enforced not only against defendants therein
but also against the members of their family, their
relatives, or privies who derived their right of
possession from the deceased defendant. (Florendo,
Jr. vs. Coloma, 129 SCRA 304)
- Formal substitution is not necessary when the heirs
themselves voluntarily appeared in the action,
participated therein and presented evidence in
defense of the deceased defendant. (Vda. de Salazar
vs. CA, 250 SCRA 305)
- In the absence of a formal substitution, the court can
acquire jurisdiction over the person of the decedent’s
representative if he voluntarily submits himself to
said jurisdiction (Cordova vs. Tornilla, 246 SCRA 430)
22 CIVIL PROCEDURE
EXAMPLES OF ACTIONS WHICH SURVIVE THE DEATH OF
A PARTY:
1. Action to recover real and personal property from the
estate;
2. Actions to enforce a lien thereon; and
3. Actions to recover damages for an injury to person or
property. (Aguas vs. Llemos, 5 SCRA 959)
4. Action to recover damages arising from delicts;
5. Actions based on the tortious conduct of the
defendant survive the death of the latter. (Board of
Liquidators vs. Kalaw, 20 SCRA 987)
6. Actions for the recovery of money, arising from a
contract express or implied are not extinguished by
the death of the defendant. (Sec. 20, Rule 3)
Section 17: Death or separation of
a party who is a public officer
DEATH OR SEPARATION OF A PARTY WHO IS A PUBLIC
OFFICER:
- When a public officer is a party in an action in his
official capacity and during its pendency dies,
resigns, or otherwise ceases to hold office, the action
may be continued and maintained by or against his
successor if, within thirty (30) days after the
successor takes office or such time as may be
granted by the court, it is satisfactorily shown to the
court by any party that there is a substantial need for
continuing or maintaining it and that the successor
adopts or continues or threatens to adopt or
continue to adopt or continue the action of his
predecessor. Before a substitution is made, the party
or officer to be affected, unless expressly assenting
thereto, shall be given reasonable notice of the
application therefor and accorded an opportunity to
be heard. (Sec. 17, Rule 3)
Section 18: Incompetency or incapacity
INCOMPETENCY OR INCAPACITY:
- If a party becomes incompetent or incapacitated, the
court, upon motion with notice, may allow the action
to be continued by or against the incompetent or
incapacitated person assisted by his legal guardian
or guardian ad litem. (Sec. 18, Rule 3)
Section 19: Transfer of interest
TRANSFER OF INTEREST:
- In case of any transfer of interest, the action may be
continued by or against the original party, unless the
court upon motion directs the person to whom the
interest is transferred to be substituted in the action
or joined with the original party. (Sec. 19, Rule 3)
Section 20: Action on contractual money claims
ACTION ON CONTRACTUAL MONEY CLAIMS:
- When the action is for the recovery of money arising
from contract (express or implied) and the defendant
dies before entry of final judgment in the court in
 CIVIL PROCEDURE
Morillo Notes
which the action was pending at the time of such
death → The Court shall not dismiss the suit. The
case shall be allowed to continue until entry of final
judgment. (Sec. 20, Rule 3).
- Since the action survives the death of the defendant,
substitution of the defendant shall be done following
the procedure prescribed by the Rules (Sec. 16, Rule
3);
- If the plaintiff obtains a favorable judgment, said
judgment shall be enforced following the procedure
provided for in the Rules for prosecuting claims
against the estate of a deceased person. (Sec. 20,
Rule 3)
- Since the action is one for recovery of money, the
judgment favorable to the plaintiff shall be filed as a
money claim against the estate of the decedent.
(Rule 86)
- Claims against the deceased person should be filed
during the settlement proceedings of the deceased.
(Heirs of Sps. Maglasang vs. Manila Banking Corp.,
GR no. 171206, September 23, 2013)
Section 21: Indigent party
INDIGENT PARTY:
- A party may be authorized to litigate as an indigent if
the court is satisfied that the party is one who has no
money or property sufficient and available for food,
shelter and basic necessities for himself and his
family. (Sec. 21, Rule 3)
HOW IS APPLICATION TO LITIGATE AS INDIGENT PARTY
MADE:
- The application and hearing to litigate as an indigent
litigant is made Ex Parte. (Sec. 21, Rule 3)
EXCEPTION OF BEING LITIGATED AS AN INDIGENT
PARTY:
- If one is authorized to litigate as an indigent, such
authority shall include an exemption from the
payment of the following:
- docket fees:
- other lawful fees; and
- transcripts of stenographic notes, which the
court may order to be furnished him. (Sec.
21, Rule 3)
- However, the amount of the docket and other lawful
fees, which the indigent was exempted from paying,
shall be lien on the judgment in the case favorable to
the indigent. A lienon the judgment shall not arise if
the court provides otherwise. (Sec. 21, Rule 3)
WHEN THE COURT FOUND THAT A PARTY IS NOT AN
INDIGENT PARTY:
- While the rule allows an Ex Parte application hearing
to litigate as an indigent, at any time before the
judgment is rendered by the trial court, any adverse
party may contest the grant of the authority to a
party to litigate as an indigent. (Sec. 21, Rule 3)
- If the court should determine that the party, declared
as an indigent is in fact a person with sufficient
income and property, the property docket and lawful
fees shall be assessed and collected by the clerk of
court. (Sec. 21, Rule 3)
- In case the grant of authority to litigate as an indigent
is contested by any party, the determination of the
court on whether or not the grant of the earlier
authority is proper is to be made after hearing, not Ex
Parte. (Sec. 21, Rule 3)
Section 22: Notice to the Solicitor General
ROLE OF THE SOLICITOR GENERAL:
- In any action involving the validity of any treaty, law,
ordinance, executive order, presidential decree, rules
or regulations, the court, in its discretion, may require
the appearance of the Solicitor General who may be
heard in person or a representative duly designated
by him. (Sec. 22, Rule 3)
- The rules is that only the Solicitor General can bring
and defend actions on behalf of the Republic of the
Philippines and that actions filed in the name of the
Republic of the Philippines or its agencies and
instrumentalities, if not initiated by the Solicitor
General, will be summarily dismissed. The authority
of the Solicitor General is embodied in Sec. 35(1),
Chapter 12, Title III, and Book IV of the
Administrative Code. (Cooperative Development
Authority vs. Dolefil Agrarian Reform Beneficiaries
Cooperative, 382 SCRA 552)
- Also, under Sec. 5 of Rule 110 of the Revised Rule
on Criminal Procedure , as amended, “All criminal
actions, commenced by a complaint or information,
shall be prosecuted under the direction and control
of a public prosecutor.” (People vs. Gabriel, 510
SCRA 197)
RULE 4
VENUE
MEANING OF VENUE:
- It is the place, or the geographical area in which a
court with jurisdiction may hear and determine a
case or the place where a case is to be tried. (Nocum
vs. Tan, 470 SCRA 639)
DIFFERENCE OF VENUE IN CIVIL CASES AND CRIMINAL
CASES:
VENUE IN VENUE IN
CIVIL CASES CRIMINAL CASES
Intended to accord It is an essential element of
convenience to the parties, as it jurisdiction.
relates to the place of trial.
Not a matter of jurisdiction but It becomes jurisdictional, failure
it concerns a rule of procedure to file in a place where the
offense was not committed
amounts for the quashal of the
information for lack of
jurisdiction over the offense
charged.
Source: Dolot vs. Paje, GR no. 199199, August 27, 2013;
Heirs of Lopez vs. De Castro, 324 SCRA 591; Golden Arches
Development Corp vs. St. Francis Square, 640 SCRA 227;
CIVIL PROCEDURE 23
 CIVIL PROCEDURE
Morillo Notes
DIFFERENCE BETWEEN VENUE AND JURISDICTION:
JURISDICTION: VENUE:
The authority to hear and The place where the case is to
determine a case; be heard or tried;
This is a matter of substantive This is a matter of procedural
law law
Establishes a relation between Establishes a relation between
the court and the subject matter plaintiff and defendant (or
petitioner and respondent);
Fixed by law and cannot be May be conferred by the act or
conferred by the parties. agreement of the parties.
Source: Nocum vs. Tan, supra
Section 1: Venue of real actions
VENUE OF REAL ACTIONS:
- Actions affecting title to or possession of real
property, or interest therein, shall be commenced
and tried in the proper court which has jurisdiction
over the area wherein the real property involved, or a
portion thereof, is situated. (Sec. 1, Rule 4)
- Actions for unlawful detainer, forcible entry and
accion publiciana are real actions and must be filed
in the place where the subject property is situated.
(Latorre vs. Latorre, 617 SCRA 88)
- Note that an action for specific performance does
not involve real property, therefore it is a personal
action. However, where a complaint is denominated
as one for specific performance but prays for the
issuance of a deed of sale for a parcel of land, to
enable the plaintiff to acquire ownership thereof, its
primary objective and nature is one to recover the
parcel of land itself, and thus deemed a real action
and the venue therefore is the place where the real
property involved is situated. (Gochan va. Gochan,
372 SCRA 256)
VENUE OF ACTIONS FOR FORCIBLE ENTRY AND
UNLAWFUL DETAINER:
- It shall be commenced and tried in the municipal
court of the municipality or city wherein the real
property involved, or a portion thereof, is situated.
(Sec. Rule 4)
Section 2: Venue of personal actions
VENUE OF PERSONAL ACTIONS:
- The venue in personal action is where the plaintiff or
any of the principal plaintiffs resides, or where the
defendant or any of the principal defendants resides,
at the election of the plaintiff. (Sec. 2, Rule 4)
- If the defendant is a non-resident, the venue is where
the plaintiff or any of the principal plaintiffs resides,
or where the non- resident defendant may be found,
at the election of the plaintiff. (Sec. 2, Rule 4)
24 CIVIL PROCEDURE
Section 3: Venue of actions against non-resident
APPLICATION OF SECTION 3, RULE 4:
a. Any of the defendants is a non-resident and, at the
same time, not found in the Philippines; and
b. The action affects the personal status of the plaintiff;
or
c. The action affects any personal property of the non-
resident defendant located in the Philippines.
VENUE OF ACTIONS AGAINST NON-RESIDENTS
AFFECTING THE PERSONAL STATUS OF THE PLAINTIFF;
ACTIONS AFFECTING PROPERTY OF THE NON-
RESIDENT IN THE PHILIPPINES:
- Under Sec. 3, Rule 4, If an action for partition of real
property is filed by the plaintiff, a resident of Manila,
naming his co-owners brothers, all residents of Los
Angeles, California, as defendants, and involving a
property located in Makati City, the plaintiff may file
the action in Makati City, the place where the
property is situated. However, the tenor of the rule
appears to give the plaintiff a choice of venue. He
may commence and have the action tried either in
Manila, the place where he resides, or in Makati City,
the place where the property is situated. (Riano,
(2014), Civil Procedure Vol. 1, p. 200)
Section 4: When Rule not applicable:
WHEN THE RULES ON VENUE DO NOT APPLY:
1. Where the parties have validly agreed in writing
before the filing of the action on the exclusive venue
thereof;
2. In those cases where a specific rule or law provides:
Examples:
- A quo warranto proceeding commenced by
the Solicitor General and filed in the RTC of
Manila. This particular rule does not
consider the residence of the respondent.
(Sec. 7, Rule 66);
- A petition for a continuing writ of mandamus
filed with the RTC exercising jurisdiction
over the territory where the actionable
neglect or omission occurred. (Sec. 2, Rule
8)
STIPULATIONS ON VENUE:
- Parties may agree in a specific venue which could be
in a place where neither of them resides. (Universal
Robina vs. Lim, 535 SCRA 95).
- In real actions, the parties may stipulate on a venue
other than the place where the real property is
situated. (Union Bank vs. Maunlad Homes, 678
SCRA 539)
REQUISITES OF STIPULATIONS ON VENUE:
1. The agreement is in writing,
2. made before the filing of the action; and
3. exclusive as to the venue (Sec. 4(b), Rule 4)
Note: While the first two requisites rarely pose a
problem, the third has been the source of
controversy in the past.
 CIVIL PROCEDURE
Morillo Notes
INTERPRETING STIPULATIONS ON VENUE:
- Written stipulations as to venue are either mandatory
or permissive. In interpreting stipulations, inquiry
must be made as to whether or not the agreement is
restrictive in the sense that the suit may be filed only
in the place agreed upon or merely permissive in that
the parties may file their suits not only in the place
agreed upon but also in the places fixed by the rules
(Supena vs. Dela Rosa, 267 SCRA 1)
MANDATORY STIPULATION:
- Where the venue stipulated upon is mandatory or
restrictive, the complaint is to be filed only in the
stipulated venue. (Pacific Consultants vs. Schonfeld,
516 SCRA 209)
- Examples of words with restrictive meaning are:
“Only,” “solely,” “exclusively in this court,” “in no
other court save ____,” “particularly,” “nowhere else
except ___,” or words of equal import. (Pacific
Consultants s. Schonfeld, supra)
- EXAMPLE: A stipulation that “any suit arising from
this contract shall be filed only in Quezon City”
PERMISSIVE STIPULATION:
- Where the stipulated venue is merely permissive, the
complaint may be filed in the place designated by
the Rules or in the place stipulated. (Pacific
Consultants vs. Schonfeld, supra)
- Mere stipulation on the venue of an action is not
enough to preclude parties from bringing a case in
the other venues. Absence of qualifying or restrictive
words, the stipulation should be deemed as merely
an agreement on an additional forum, not as limiting
venue to the specified place. (Sps. Lantin vs. Lantion,
499 SCRA 718)
- EXAMPLE: A stipulation that the “parties agree to
sue and be sued in the courts of Manila”
VENUE IN A CONTRACT OF ADHESION:
- Contracts of adhesion might be occasionally struck
down only if there was a showing that the dominant
bargaining party left the weaker party without any
choice as to be “completely deprived of an
opportunity to bargain effectively” (Prieto vs. CA, 673
SCRA 371)
DISMISSAL BASED ON IMPROPER VENUE:
- A motu proprio dismissal based on improper venue
is plain error and patently incorrect. (Republic vs.
Glasgow Credit and Collection Services, Inc., 542
SCRA 95)
- A court may not dismiss an action motu proprio on
the ground of improper venue as it is not one of the
grounds wherein the court may dismiss an action
motu proprio on the basis of the pleadings (Universal
Corporation vs. Lim, 535 SCRA 95)
- Unless and until the defendant objects to the venue
in a motion to dismiss, the venue cannot be truly said
to be improperly laid, because the venue may be
acceptable to the parties for whose convenience the
rules on venue have been devised. The trial court
cannot preempt the defendant’s prerogative to
object to the improper laying of the venue by motu
proprio dismissing the case. (Dacuycoy vs. IAC, 195
SCRA 641)
WHEN COURT MAY MAKE A MOTU PROPRIO DISMISSAL
BASED ON IMPROPER VENUE:
- The court may effect a motu proprio dismissal of the
complaint based on improper venue in an action
covered by the rules on summary procedure.
- In small claims cases, the court may dismiss the
cases out right on any of the grounds apparent from
the Claims for the dismissal of the civil action, from
an examination of the allegations of the Statement of
Claim and such evidence attached thereto. (Sec. 9m
Rule of Procedure for Small Claims Cases as
amended)
- In actions for forcible entry and unlawful detainer, the
court may dismiss the case outright after
examination of the complaint and such evidence
attached thereto. The dismissal may be based on
any of the grounds for the dismissal of a civil action.
A motion to dismiss is not required. (Sec. 5, Rule 70)
DENIAL OF A MOTION TO DISMISS BASED ON
IMPROPER VENUE; NO APPEAL:
- Because an order denying a motion to dismiss is
merely interlocutory. It is not final. Only final orders or
judgments may be appealed from. (Emergency Loan
vs. CA, 353 SCRA 89)
- The remedy is to file an answer and interpose the
ground as an affirmative defense, go to trial and
appeal from the adverse judgment. (Emergency Loan
vs. CA, supra)
AUTHORITY OF THE SUPREME COURT IN RELATION TO
VENUE OF CASES:
- To avoid miscarriage of justice, the SC may order a
change in venue. (Sec. 5(4), Art. VIII, 1987
Constitution)
- This rule refers to both civil and criminal action.
RULE 5
UNIFORM PROCEDURE IN TRIAL COURTS
Section 1. Uniform procedure. — The procedure in the
Municipal Trial Courts shall be the same as in the Regional
Trial Courts, except (a) where a particular provision expressly
or impliedly applies only to either of said courts, or (b) in civil
cases governed by the Rule on Summary Procedure.
Section 2. Meaning of terms. — The term "Municipal Trial
Courts" as used in these Rules shall include Metropolitan Trial
Courts, Municipal Trial Courts in Cities, Municipal Trial Courts,
and Municipal Circuit Trial Courts
PROCEDURE IN REGIONAL TRIAL COURTS
[Rule 6 to Rule 39]
CIVIL PROCEDURE 25
 CIVIL PROCEDURE
Morillo Notes
RULE 6
KINDS OF PLEADINGS
Section 1: Pleadings defined:
DEFINITION OF PLEADING:
- These are the written statements of the respective
claims and defenses of the parties submitted to the
court for appropriate judgment. (Sec. 1, Rule 6)
NECESSITY AND PURPOSE OF PLEADINGS:
- Pleadings are necessary, in order to confer
jurisdiction on a court, that the subject matter be
presented for its consideration in a mode sanctioned
by law and this is done by the filing of a complaint or
other pleading. Unless a complaint or other pleading
is filed, the judgment of a court of record is void and
subject to collateral attack, even though it may be a
court which has jurisdiction over the subject matter
referred to in the judgment. (Riano (2014), Civil
Procedure Vol. 1, p. 299)
- Pleadings are intended to secure a method by which
the issues may be properly laid before the court
(Santiago vs. Delos Santos, 61 SCRA 146);
- Pleadings are designed to develop and present the
precise points in dispute between the parties. The
object of pleadings is to notify the opposite party of
the facts which the pleader expects to prove so he
may not be misled in the preparation of his case.
(Riano (2014, supra)
CONSTRUCTION OF PLEADINGS:
- All pleadings shall be liberally construed so as to do
substantial justice. (Concrete Aggregate Corp. vs.
CA, 266 SCRA 88)
- While it is the rule that pleadings should be liberally
construed, it is also a rule that a party is strictly
bound by the allegations, statements or admissions
made in his pleadings and cannot be permitted to
take a contradictory position. Therefore, an
admission in the pleadings cannot be controverted
by the party making such admission and ae
conclusive as to him, and that all proofs submitted
by him contrary thereto or inconsistent therewith,
should be ignored, whether objection is interposed or
not. (Santiago vs. Delos Santos, 61 SCRA 146)
CONSTRUCTION OF AMBIGUOUS ALLEGATIONS IN
PLEADINGS:
- In case of ambiguities in the pleadings, the same
must be construed strongly against the pleader and
that no presumption in his favor are to be indulged
in. (Riano (2014), supra)
- It is the pleader who selects the language used and if
his pleading is open to different constructions, such
ambiguities must be at the pleader’s peril. (Supra)
Section 2: Pleadings allowed
KINDS OF PLEADINGS ALLOWED BY THE RULES OF
COURT:
a. Complaint;
26 CIVIL PROCEDURE
b. Answer;
c. Counterclaim;
d. Cross-claim;
e. Third (forth, etc.)-party complaint;
f. Complaint-in-intervention; and
g. Reply. (Sec. 2, Rule 6)
DEFENSES AND ANSWERS:
- The defenses of a party are alleged in the answer to
the pleading asserting a claim against him or her.
(AM No. 19-10-20-SC)
- An answer may be responded to by a reply only if the
defending party attaches an actionable document to
the answer. (AM No. 19-10-20-SC)
Section 3: Complaint
DEFINITION OF COMPLAINT:
- The complaint is the pleading alleging the plaintiff’s
or claiming party’s cause or causes of action. (Sec.
3, Rule 6, AM no. 19-10-20-SC)
- The names and residences of the plaintiff and
defendant must be stated in the complaint. (Supra)
FILING OF THE COMPLAINT:
- The filing of the complaint is the act of submitting the
said complaint to the court. (Sec. 2, Rule 13, AM No.
19-10-20-SC)
SIGNIFICANCE OF FILING OF THE COMPLAINT:
- The filing of the original complaint in court signifies
the commencement of the civil action. (Sec. 5, Rule
1)
- By the filing of the complaint, the court also acquires
jurisdiction over the person of the plaintiff.
- Submission to the jurisdiction of the court is implied
from the very filing of the complaint where the
affirmative relief is prayed for by the plaintiff.
- It also has the effect of interrupting the prescription
of actions pursuant to Art. 1156 of the Civil Code of
the Philippines
PAYMENT OF DOCKET FEES AND ACQUISITION OF
JURISDICTION:
- General Rule: Court acquires jurisdiction over the
claim of damages upon payment of the correct
docket fees. (Nestle Philippines, Inc. vs. FY Sons,
Inc., 489 SCRA 624). Any defect in the original
pleading resulting in underpayment of the docket fee
cannot be cured by amendment since there is no
original complaint over which the court has acquired
jurisdiction. (Manchester Development Corp. vs. CA,
149 SCRA 562)
- Exceptions: While the payment of the required
docket fee is a jurisdictional requirement, its
nonpayment at the time of filing does not
automatically cause the dismissal of the case as long
as the fee is paid within the applicable prescriptive or
reglementary period. (Sun Insurance Office vs.
Asuncion, 170 SCRA 274). If the amount of the
docket fees is insufficient considering the amount of
the claim, the party filing the case will be required to
pay the deficiency but jurisdiction is not
automatically lost. (Rivera vs. Del Rosario, 419 SCRA
626).
 CIVIL PROCEDURE
Morillo Notes
- NOTE: The rule on non-payment of docket fees
It is stated in the form of The affirmative defenses
elaborated in the case of Manchester Development specific denial and the kinds of include;
Corp. vs. CA should not be applied in the absence of specific denials are described in ● fraud,
such intent to defraud. (Unicapital vs. Consing, Jr., Sec. 10, Rule 8. ● statute of limitations,
GR no. 192073, September 11, 2011) ● release, payment,
● illegality,
EFFECT OF FAILURE TO PAY DOCKET FEE ON ● statute of frauds,
● estoppel,
SUPPLEMENTAL COMPLAINT:
● former recovery,
- Non-payment of additional filing fees due on their ● discharge in
additional claims did not divest the RTC of the bankruptcy, and
jurisdiction it already had over the case. (Do-All ● any other matter by
Metals Industries, Inc. vs. Security Bank Corp., 639 way of confession
SCRA 39) and avoidance.

PAYMENT OF DOCKET FEES FOR CASES ON APPEAL: A defense is negative when the Affirmative defenses may also
- Appellate docket and other lawful fees must be paid material averments alleged in include grounds for the
the pleading of the claimant are dismissal of a complaint,
within the same period for taking an appeal. (Sec. 4,
specifically denied. specifically, that the court has
Rule 41) no jurisdiction over the subject
- Payment of the docket fee within the prescribed matter, that there is another
period is mandatory for the perfection of an appeal. action pending between the
Without such payment, the appellate court does not same parties for the same
acquire jurisdiction over the subject matter of the cause, or that the action is
action and the decision sought to be appealed from barred by a prior judgment.
becomes final and executory. (Regalado vs. Go, 514
Source: Sec. 5, Rule 6, AM No. 19-10-20-SC; Pesane Animas
SCRA 616) Mongao vs. Pryce Properties Corp., 467 SCRA 201)
- Non-payment is a valid ground for the dismissal of
an appeal. (M.A. Santander Construction vs.
NOTE: Affirmative defenses are further discussed under Sec.
Villanueva, 441 SCRA 525)
12, Rule 8
- However, delay in the payment of the docket fees
confers upon the court a discretionary, not
mandatory, power to dismiss an appeal. (Villamor vs.
NEGATIVE PREGNANT:
CA, 434 SCRA 565)
- In a pleading, a negative pregnant is a negative
implying also an affirmative and which, although is
Section 4: Answer stated in a negative form, really admits the
allegations to which it relates.(Black’s Law
Dictionary)
NATURE OF ANSWER: - A negative pregnant does not qualify as a specific
- The answer is a pleading in which a defending party denial. It is conceded to be actually an admission. It
sets forth his or her defenses. (Sec. 4, Rule 6, AM refers to a denial which implies its affirmative
No. 19-10-20-SC opposite by seeming to deny only a qualification or
- This pleading may be an answer to the complaint, an incidental aspect of the allegation but not the
counterclaim or a cross-claim. There is no answer to allegation itself.
a reply but there could be an answer to a third-party - A denial in the form of a negative pregnant is an
complaint or complaint-in-intervention. (Riano (2014), ambiguous pleading, since it cannot be ascertained
Civil Procedure Vol. 1, p. 354) whether it is the fact or only the qualification that is
intended to be denied. The Court thus, reiterated the
Section 5: Defenses rule that “Where a fact is alleged without some
qualifying or modifying language, and the denial is
conjunctive, a negative pregnant exists, and only the
DEFENSES IN THE ANSWER: qualification or modification is denied, while the fact
- An answer contains the defenses of the answering itself is admitted. (Venzon vs. Rural Bank, GR no.
party. These defenses may either be negative or 178031, Aug. 28, 2013)
affirmative. (Sec. 5, Rule 6)

NEGATIVE VS. AFFIRMATIVE DEFENSES: Section 6: Counterclaim

NEGATIVE AFFIRMATIVE DEFENSE

DEFENSE
It is the specific denial of the
material fact or facts alleged in
the pleading of the claimant
essential to his or her cause or
causes of action.
It is an allegation of a new
matter which, while
hypothetically admitting the
material allegations in the
pleading of the claimant, would
nevertheless prevent or bar
recovery by him or her.
DEFINITION OF COUNTERCLAIM:
- A counterclaim is any claim which a defending party
may have against an opposing party. (Sec. 6, Rule 6).
It partakes of a complaint by the defendant against
the plaintiff.
NATURE OF A COUNTERCLAIM:
- It is in itself a distinct and independent cause of
action and when filed, there are two simultaneous
actions between the same parties. (Pro-Line Sports

CIVIL PROCEDURE 27

 CIVIL PROCEDURE
Morillo Notes
Center, Inc vs. CA, 281 SCRA 162). A counterclaim is
a pleading. PERMISSIVE COUNTERCLAIM:
- A counterclaim is described by the ROC as any - If any of the elements of a compulsory counterclaim
claim. This may refer to a claim for (a) money, or (b) is absent.
some other relief against an opposing party. - Absent of a logical connection with the subject
(Yulienco vs. CA, 308 SCRA 206) matter of the complaint. (International Container
- A counterclaim is permitted by the ROC as a way of Terminal vs. CA, 214 SCRA 456)
preventing multiplicity of suits by allowing in one
action, the determination of the entire controversies DISTINCTION BETWEEN COMPULSORY AND
between the parties. (Raymundo vs. Felipe, 42 SCRA PERMISSIVE COUNTERCLAIM:
615)
- A counterclaim may be compulsory or permissive. COMPULSORY PERMISSIVE
COUNTERCLAIM COUNTERCLAIM

Section 7: Compulsory counterclaim Shall be contained in the May be set up as an

answer at the time of filing, independent action and will not
otherwise it is barred be barred if not contained in the
NATURE OF COMPULSORY COUNTERCLAIM: answer of the complaint.
- A compulsory counterclaim is one which, being
cognizable by the regular courts of justice, arises out Not an initiatory pleading Considered as an initiatory
of or is connected with the transaction or occurrence pleading
constituting the subject matter of the opposing
party's claim and does not require for its adjudication It does not required to be Must be accompanied by a
the presence of third parties of whom the court accompanied by a Certificate of certificate of non-forum
Non-Forum Shopping and a shopping as well as a certificate
cannot acquire jurisdiction. (Sec. 7, Rule 6)
Certificate to file an action to file action issued by the
- Such a counterclaim must be within the jurisdiction issued by the Lupong Lupong Tagapamayapa
of the court both as to the amount and the nature Tagapamayapa. because it is an initiatory
thereof, except that in an original action before the pleading.
Regional Trial Court, the counterclaim may be
considered compulsory regardless of the amount. Failure to answer this is not a Must be answered by the party
(Supra) cause for a default declaration against whom it is interposed,
- A compulsory counterclaim not raised in the same because it is deemed otherwise, he may be declared
action is barred, unless otherwise allowed by these automatically joined by the in default as to the
Rules. (Sec. 7, Rule 6, AM No. 19-10-20-SC) allegations in the complaint. counterclaim.

Source: Ponciano vs. Parentela, 331 SCRA 605; Gojo vs.

ELEMENTS OF COMPULSORY COUNTERCLAIM:
a. It arises out of or is necessary connected with the
transaction or occurrence which is the subject matter
of the opposing party’s claim;
b. It does not require for its adjudication the presence
of third parties over whom the court cannot acquire
jurisdiction; and
c. It is cognizable by the regular courts of justice and
such courts have jurisdiction to entertain the
counterclaim both as to the amount and nature.
(Financial Building Corp. vs. Forbes Park Assoc., 338
SCRA 346)
TEST TO DETERMINE COMPULSORY COUNTERCLAIM:
a. Are the issues of fact and law raised by the claim and
the counterclaim largely the same?
b. Would res judicata bar a subsequent suit on
defendant’s claims, absent the compulsory
counterclaim rule?
c. Will substantially the same evidence support or
refute plaintiff’s claim as well as the defendant’s
counterclaim?
d. Is there any logical relation between the claim and
the counterclaim?
- A positive answer to all four questions would indicate
the counterclaim is compulsory (GSIS vs. Heirs of
Caballero, 632 SCRA 5)
- One compelling test of compulsoriness is the logical
relation between the claim alleged in the complaint
and that in the counterclaim (Bayer Philippines, Inc.
vs. CA, 340 SCRA 437)
Goyala, 35 SCRA 557; GSIS vs. Heirs of Caballero, 632 SCRA
5
HOW TO SET UP AN OMITTED COUNTERCLAIM:
- A counterclaim not initially set up because of the
pleader’s oversight, inadvertence, excusable neglect,
or when justice requires, may be set up, by leave of
court, by amendment before judgment. (Sec. 10,
Rule 11)
- If not set up in the action, the compulsory
counterclaim shall be barred. (Sec. 2, Rule 9).
- However, a permissive counterclaim will not be
barred.
HOW TO SET UP A COUNTERCLAIM ARISING AFTER THE
ANSWER:
- A counterclaim, which either matured or acquired by
a party after serving his pleading, may (with the
permission of the court) be presented as a
counterclaim by supplemental pleading before
judgment. (Sec. 9, Rule 11)
PERIOD TO ANSWER A COUNTERCLAIM:
- It must be made within 20 calendar days from
service (Sec. 4, Rule 11, AM No. 19-10-20-SC)
Section 8: Cross-claim

28 CIVIL PROCEDURE

 CIVIL PROCEDURE
Morillo Notes
DEFINITION OF CROSS-CLAIM:
- It is any claim by one party against a co-party arising
out of the transaction or occurrence that is the
subject matter either of the original action or a
counterclaim therein. (Sec. 8, Rule 6)
- Such cross-claim may cover all or part of the original
claim. (Sec. 8, Rule 6, AM No. 19-10-20-SC)
NATURE OF A CROSS-CLAIM:
- While a counterclaim is asserted by a defending
party against a claimant, a cross-claim is asserted by
a defending party against a co-defending party so
that the latter may be held liable for the claim which
the claimant seeks to recover from the cross-
claimant. If XYZ Bank sues A and B for the collection
of a loan, A (who merely acted as an accommodation
party) may file a cross-claim against his co-
defendant, B, by asserting that it is B who is the
actual and true debtor and, therefore, should be
ultimately liable for the payment of the loan.
NO CROSS-CLAIM FOR THE FIRST TIME ON APPEAL:
- While a defendant may have a definite cause of
action against a co-defendant, it cannot succeed in
seeking judicial sanction against the latter if the
records disclose that no cross-claim was interposed,
nor was there a prayer that the co-defendant should
be liable for all claims that may be adjudged in favor
of the plaintiff. Under the ROC, a cross-claim not set
up shall be barred. Therefore, a cross-claim cannot
be set up for the first time on appeal. (Loadmaster
Customs Services, Inc. vs. Glodel Brokerage Corp.,
639 SCRA 69)
DISTINCTION BETWEEN COUNTERCLAIM AND CROSS-
CLAIM:
COUNTERCLAIM CROSS-CLAIM
Claim against the opposing Claim against a co-party
party
May or may not arise out of the It must arise from the
subject matter of the complaint. transaction or occurrence that
is the subject matter of the
original complaint or
counterclaim.
Source: Sec. 8, Rule 6
HOW TO SET UP A CROSS-CLAIM ARISING AFTER THE
ANSWER:
- A cross-claim which either matured or was acquired
by a party after serving his pleading may, with the
permission of the court, be presented as a cross-
claim by supplemental pleading before judgment.
(Sec. 9, Rule 11)
HOW TO SET UP AN OMITTED CROSS-CLAIM:
- When a pleader fails to set up across-claim through
oversight, inadvertence or excusable neglect, or
when justice requires he may, by leave of court, set
up the cross-claim by amendment before judgment.
(Sec. 10, Rule 11)
PERIOD TO ANSWER A CROSS-CLAIM:
- A cross-claim must be answered within 20 calendar
days from service. (Sec. 4, Rule 11)
Section 9: Counter-counterclaims and counter-cross-
claims
COUNTER-COUNTERCLAIMS AND
COUNTER-CROSS-CLAIMS:
- A counterclaim may be asserted against an original
counter-claimant.
- A cross-claim may also be filed against an original
cross-claimant. (Sec. 9, Rule 6)
Section 10: Reply
DEFINITION OF REPLY:
- It is a pleading, the function of which is to deny, or
allege facts in denial or avoidance of new matters
alleged in, or relating to, said actionable document.
(Sec. 10, Rule 6, AM No. 19-10-20-SC)
NATURE OF A REPLY:
- A reply is the responsive pleading in an answer. It is
not a responsive pleading to a counterclaim or a
cross-claim. The proper response to a counterclaim
or cross-claim is an answer to the counterclaim or
answer to the cross-claim. (Riano (2014), Civil
Procedure Vol. 1, p. 400)
ACTIONABLE DOCUMENT ATTACHED TO A REPLY:
- In the event of an actionable document attached to
the reply, the defendant may file a rejoinder if the
same is based solely on an actionable document.
(Sec. 10, Rule 6, AM No. 19-10-20-SC)
FILING OF A REPLY:
- All new matters alleged in the answer are deemed
controverted. (Sec. 10, Rule 6, AM No. 19-10-20-SC)
- If the plaintiff wishes to interpose any claims arising
out of the new matters so alleged, such claims shall
be set forth in an amended or supplemental
complaint. (Supra)
- However, the plaintiff may file a reply only if the
defending party attaches an actionable document to
his or her answer. (Supra)
Section 11: Third(forth, etc.)-party complaint
DEFINITION OF A THIRD (FORTH, ETC.)-PARTY
COMPLAINT:
- It is a claim which a defending party may, with leave
or court, file against a person who is not yet a party
to the action for contribution, indemnity, subrogation
or any other relief, in respect of his or her opponent's
claim. (Sec. 11, Rule 6, AM no. 19-10-20-SC)
NATURE OF A THIRD (FORTH, ETC.)-PARTY COMPLAINT:
- A third-party complaint is actually a complaint
independent of, and separate and distinct, from the
plaintiff’s complaint. Were it not for the above rule,
such third-party complaint would have to be filed
independently and separately from the original
CIVIL PROCEDURE 29
 CIVIL PROCEDURE
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complaint. The purpose is to avoid circuitry of action
and unnecessary proliferation of lawsuits and
dispose expeditiously in one litigation all the matters
arising from one particular set of facts.
- Trial courts are not especially enjoined by law to
admit a third-party complaint. They are vested with
discretion to allow or disallow a party to an action to
implead an additional party. Thus, a defendant has
no vested right to file a third-party complaint. (China
Banking Corp. vs. Padilla, 514 SCRA 35)
GROUNDS WHERE THIRD (FORTH, ETC.)-PARTY
COMPLAINT SHALL BE DENIED ADMISSION; THE COURT
SHALL REQUIRE THE DEFENDANT TO INSTITUTE A
SEPARATE ACTION:
a. Where the third (forth, etc.)-party defendant cannot
be located within 30 calendar days from the grant of
such leave;
b. Where matters extraneous to the issue in the
principal case are raised; or
c. Where the effect would be to introduce a new and
separate controversy into the action. (Sec. 11, Rule
6, AM No. 19-10-20-SC)
FILING A THIRD (FORTH, ETC.)-PARTY COMPLAINT
AGAINST ONE WHO IS ALREADY A PARTY TO THE
ACTION IS IMPROPER:
- It is not proper to file a third-party complaint against
one who is already a party to the action such as
against the plaintiff or a co-defendant. A claim by the
defendant against his co-defendant is set up by way
of a cross-claim. Thus, if Mr. S sells a car to Mr. B,
and later, the real owner of the car, Mr. O, files an
action against Mr. B to recover the car, Mr. B may
file a third-party against S to require the latter to
answer for the breach of warranty against eviction.
(Art. 1558, NCC)
LEAVE OF COURT:
- The filing of a third-party complaint requires leave of
court (Sec. 11, Rule 6) and, Therefore, its admission
is subject to judicial discretion.
- Leave of court is not required in filing a counterclaim
or a cross-claim because the parties involved are
already parties to the action.
ANSWER TO A THIRD-PARTY COMPLAINT:
- The time to answer a third-party complaint shall be
governed by the same rule as the answer to the
complaint (Sec. 5, Rule 11).
- Hence, within 30 calendar days from service of
summons. (Sec. 1, Rule 11, AM No. 19-10-20-SC)
Section 12: Bringing new parties
BRINGING NEW PARTIES:
- When the presence of parties other than those to the
original action is required for the granting of
complete relief in the determination of a counterclaim
or cross- claim, the court shall order them to be
brought in as defendants, if jurisdiction over them
can be obtained. (Sec. 12, Rule 6)
Section 13: Answer to third (forth, etc.)-party complaint
30 CIVIL PROCEDURE
ANSWER TO THIRD (FORTH, ETC.)-PARTY COMPLAINT:
- A third (fourth, etc.)party defendant may allege in his
or her answer his or her defenses, counterclaims or
cross-claims, including such defenses that the third
(fourth, etc.)- party plaintiff may have against the
original plaintiff's claim. In proper cases, he or she
may also assert a counterclaim against the original
plaintiff in respect of the latter's claim against the
third-party plaintiff. (Sec. 13, Rule 6, AM No. 19-10-
20-SC)
PERIOD TO FILE A REPLY:
- A reply may be filed within 15 calendar days from
service of the pleading responded to. (Sec. 6, Rule
11, AM no. 19-10-20-SC)
RULE 7
PARTS AND CONTENTS OF A PLEADING
Section 1: Caption
CAPTION OF THE PLEADING:
- The caption contains the following (a) name of the
court; (b) title of the action; and (c) docket number, if
assigned. (Sec.1, Rule 7)
TITLE OF THE ACTION:
- The title of the action contains the names of the
parties whose participation in the case shall be
indicated. This means the parties shall be indicated
as either plaintiff or defendant. They shall all be
named in the original complaint or petition; but in
subsequent pleadings, it shall be sufficient if the
name of the first party on each side be stated with an
appropriate indication whether there are other
parties. (Sec. 1, Rule 7)
- Their respective participation in the case shall be
indicated. (Sec. 1, Rule 7)
Section 2: The body
BODY OF THE PLEADING:
- The body of the pleading set forth its designation,
the allegations of the party’s claims or defenses, the
relief prayed for, and the date of the pleading. (Sec.
2, Rule 7)
- The allegations in the body of the pleading shall be
divided into paragraph s and shall be so numbered
for ready identification. This numbering scheme is
significant because, in subsequent pleadings, a
paragraph may be referred to only by its number
without need for repeating the entire allegations in
the paragraph. Each paragraph shall contain a
statement of a single set of circumstances so far as
that can be done with convenience. (Sec. 2, Rule 7)
A. PARAGRAPH:
- The allegations in the body of a pleading shall be
divided into paragraphs so numbered to be readily
 CIVIL PROCEDURE
Morillo Notes
identified, each of which shall contain a statement of
a single set of circumstances so far as that can be
done with convenience. A paragraph may be referred
to by its number in all succeeding pleadings. (Sec. 2,
Rule 7)
B. HEADINGS:
- When two or more cause of action are joined, the
first cause of action shall be prefaced with the
words, “first cause of action,” of the second cause of
action by the words, “second cause of action,” and
so on for the others. (Sec. 2, Rule 7)
- When one or more paragraphs in the answer are
addressed to one of several causes of action in the
complaint, they shall be prefaced by the words
"answer to the first cause of action" or "answer to
the second cause of action" and so on; and when
one or more paragraphs of the answer are addressed
to several causes of action, they shall be prefaced by
words to that effect. (Sec. 2, Rule 7)
C. RELIEF:
- The pleading shall specify the relief sought, but it
may add a general prayer for such further or other
relief as may be deemed just or equitable. (Sec. 2(c),
Rule 7)
- A court can grant the relief warranted by the
allegations and the proof even if it is not specifically
sought by the injured party; the inclusion of a general
prayer may justify the grant of a remedy different
from or together with the specific remedy sought, if
the facts alleged in the compliant and the evidence
introduced so warran. (Prince Transport, Inc. vs.
Garcia, 639 SCRA 312)
D. DATE:
- Every pleading shall be dated. (Sec. 2(d), Rule 7)
Section 3: Signature and address
MANDATORY SIGNING OF A PLEADING:
- Every pleading and other written submissions to the
court must be signed by the party or counsel
representing him or her. (Sec. 3(a), Rule 7, AM no.
19-10-20-SC)
- A signed pleading is one that is signed either by the
party himself or his counsel. Sec. 3, Rule 7 requires
that a pleading must be signed by the party or
counsel representing him. Therefore, only the
signature of either the party himself or his counsel
operates to validly convert a pleading from one that
is unsigned to one that is signed. (Republic vs.
Kendrick Development Corporation, 498 SCRA 220)
EFFECT OF SIGNATURE OF COUNSEL:
- The signature of the counsel constitutes a certificate
by him or her that (a) he or she has read the pleading
and document; and (b) that to the best of his or her
knowledge, information and belief, formed after an
inquiry reasonable under the circumstances:
1. It is not being presented for any improper
purpose, such as to harass, cause
unnecessary delay, or needlessly increase
the cost of litigation;
2. The claims, defenses, and other legal
contentions are warranted by existing law or
jurisprudence, or by a non-frivolous
argument for extending jurisprudence;
3. The factual contentions have support or, if
specifically so identified, will likely have
evidentiary support after availment of the
modes of discovery under these rules; and
4. The denials of factual contentions are
warranted on the evidence or, if specifically
so identified, are reasonably based on belief
or a lack of information. (Sec. 3, Rule 7, AM
No. 19-10-20-SC)
VIOLATION OF THIS RULE; THE COURT MAY IMPOSE
APPROPRIATE SANCTIONS:
- If the court determines, on motion or motu proprio
and after notice and hearing, that this rule has been
violated, it may impose appropriate sanction or refer
such violation to the proper office for disciplinary
action, on any attorney, law firm, or party that
violated the rule, or is responsible for the violation.
(Sec. 3, Rule 7, AM no. 19-10-20-SC)
LIABILITY OF THE LAW FIRM TO ITS PARTNER,
ASSOCIATE, OR EMPLOYEE:
- Absence of exceptional circumstances, a law firm
shall be held jointly and severally liable for a violation
committed by its partner, associate, or employee.
(Sec. 3, Rule 7, AM no. 19-10-20-SC)
WHAT ARE THOSE APPROPRIATE SANCTIONS? The
sanction may include, but shall not be limited to the following:
a. Non-monetary directive or sanction;
b. An order to pay a penalty in court; or
c. If imposed on motion and warranted for effective
deterrence, a order directing payment to the movant
of part or all of the reasonable attorney’s fees and
other expenses directly resulting from the he
violation, including attorney’s fees for the filing of the
motion for sanction. (Sec. 3, Rule 7, AM no. 19-10-
20-SC)
CAN A LAWYER OR LAW FIRM PASS ON THE MONETARY
PENALTY TO THE CLIENT?
- NO, The lawyer or law firm cannot pass on the
monetary penalty to the client. (Sec. 3, Rule 7, AM
No. 19-10-20-SC)
Section 4: Verification
VERIFICATION IN A PLEADING:
- Pleadings need not be under oath, verified or
accompanied by affidavit, except when so required
by law or rule. (Sec. 4, Rule 7)
HOW A PLEADING IS VERIFIED:
- A pleading is verified by an affidavit of an affiant duly
authorized to sign said verification. (Sec. 4, Rule 7,
AM no. 19-10-20-SC)
- The authorization of the affiant to act on behalf of a
party, whether in the form of a secretary’s certificate
or a special power of attorney, should be attached to
the pleading, and shall allege the following
attestations:
1. The allegations in the pleadings are true and
correct based on his or her personal
CIVIL PROCEDURE 31
 CIVIL PROCEDURE
Morillo Notes
knowledge, or based on authentic
documents;
2. The pleading is not filed to harass, cause
unnecessary delay, or needlessly increase
the cost of litigation; and
3. The factual allegations therein have
evidentiary support, or, if specifically so
identified, will likewise have evidentiary
support after a reasonable opportunity for
discovery. (Sec. 4, Rule 7, AM No. 19-10-
20-SC)
- The signature of the affiant shall further serve as a
certification of the truthfulness of the allegations in
the pleading. (Sec. 4, Rule 7, AM No. 19-10-20-SC)
SIGNIFICANCE OF A VERIFICATION:
- Verification is intended to secure an assurance that
the allegations in a pleading are true and correct and
not the product of the imagination or a matter of
speculation and that the pleading is filed in good
faith. (Sarmiento vs. Zaratan, 514 SCRA 246)
EFFECT OF LACK OF A VERIFICATION:
- The lack of a proper verification is cause to treat the
pleading as unsigned and dismissible. (Chua vs.
Torres, 468 SCRA 358)
- A verification is not proper when the verification does
not comply with the requirement of the rule. For
instance, a pleading required to be verified but which
contains a verification based on “information and
belief” or upon “knowledge, information and belief,”
shall be treated as an unsigned pleading. (Sec. 4,
Rule 7)
- However, the absence of a verification, or the non-
compliance with the verification requirement 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 and non-compliance therewith
does not necessarily render it fatally defective. The
Court may order its submission or correction or act
on the pleading if the attending circumstances are
such that strict compliance with the ROC may be
dispensed with in order that the ends of justice may
be served thereby. (Vda. De Formoso vs. PNB, 650
SCRA 35)
Section 5: Certification against forum shopping
CERTIFICATION AGAINST FORUM SHOPPING:
- This is a sworn statement in which the plaintiff or
principal party certifies in a complaint or initiatory
pleading to the following matters:
a. that he has not commenced any action or
filed any claim involving the same issues in
any court, tribunal, or quasi-judicial agency
and, to the best of his knowledge, no such
other action or claim is pending therein;
b. that if there is such other pending action or
claim, a complete statement of the present
status thereof; and
c. that if he should thereafter learn that the
same or similar action or claim has been
filed or is pending, he shall report that fact
within 5 calendar days therefrom to the
32 CIVIL PROCEDURE
court wherein his aforesaid complaint or
initiatory pleading has been filed. (Sec. 5,
Rule 7, AM No. 19-10-20-SC)
- The authorization of the affiant to act on behalf of a
party whether in the form of a secretary’s certificate
or a special power of attorney (SPA), should be
attached to the pleading. (Sec. 5, Rule 7, AM No. 19-
10-20-SC)
MEANING OF FORUM SHOPPING:
- There is forum shopping when, as a result of an
adverse opinion in one forum, a party seeks a
favorable opinion, other than by appeal or certiorari
in another. (Huibonhoa vs. Concepcion, 497 SCRA
562)
- Also, there is forum shopping when a party institutes
two or more suits in different courts, either
simultaneously or successively, in order to ask the
courts to rule on the same or related causes and/or
to grant the same or substantially the same reliefs on
the supposition that one or the other court would
make a favorable disposition or increase a party’s
chances of obtaining a favorable decision or action.
(Huibonhoa vs. Concepcion, supra)
REQUISITES FOR THE EXISTENCE OF FORUM
SHOPPING:
a. Identity of parties, or at least such parties as
represent the same interest in both actions;
b. Identity of rights asserted and relief prayed for, the
relief being founded on the same facts; and
c. The identity of the two preceding particulars is such
that any judgment rendered in the pending case,
regardless of which party is successful, would
amount to res judicata in the other case. (Brown-
Araneta vs. Araneta, GR no. 190814, October 9,
2013)
THREE WAYS OF COMMITTING FORUM SHOPPING:
1. Filing multiple cases based on the same cause of
action and with the same prayer, the previous case
not having been resolved yet (where the ground is
litis pendentia);
2. Filing multiple cases based on the same cause of
action and the same prayer, the previous case
having been resolved (where the ground for dismissal
is res judicata); and
3. Filing multiple cases based on the same cause of
action, but with different prayers (splitting of causes
of action, where the ground for dismissal is also
either litis pendentia or res judicata). (Chua vs.
Metrobank, 596 SCRA 524)
REASON FOR THE PROHIBITION ON FORUM SHOPPING:
- A party should not be allowed to pursue
simultaneous remedies in two different fora. Filing
multiple petitions or complaints constitutes abuse of
court processes. which tends to degrade the
administration of justice, wreaks havoc upon orderly
judicial procedure, and adds to the congestion of the
heavily burdened dockets of the courts. (Huibonhoa
vs. Concepcion, supra)
 CIVIL PROCEDURE
Morillo Notes
WHO EXECUTES THE CERTIFICATION AGAINST FORUM
SHOPPING?
● General Rule: It is the plaintiff or principal party who
executes the certification under oath. (Sec. 5, Rule 7)
because it is the petitioner and not the counsel who
is in the best position to know whether he or it
actually filed or caused the filing of a petition. A
certification signed by the counsel is defective
certification and a valid cause for dismissal. (Far
Eastern Shipping vs. CA, 297 SCRA 30)
● Exceptions:
○ For justifiable reasons, when the party-pleader
execute a Special Power of Attorney designating
his counsel of record to sign on his behalf. (Vda.
de Formoso vs. PNB, 650 SCRA 35);
○ With respect to a corporation, the certification
must be executed by an officer or member of the
board of directors or by one who is duly
authorized by a resolution of the board of
directors; otherwise, the complaint will have to be
dismissed. (Cosco Philippines vs. Kemper
Insurance, 670, SCRA 343);
○ A president of a corporation can sign the
verification and certification against forum
shopping on behalf of the corporation without the
benefit of a board resolution. In some cases, the
SC allowed the following to sign: (a) Chairperson
of the board of directors; (b) General Manager or
Acting general manager; (c) a Personnel officer;
and (d) an Employment Specialist in a labor case.
(South Cotabato Communications vs. Sto.
Tomas, 638 SCRA 566)
○ An academic dean in a case involving a faculty
member in his college. (University of the East vs.
Pepanio, 689 SCRA 250)
○ A belated submission of the written authority of
the board was found to be a substantial
compliance with Sec. 5, Rule 7, especially when
the acts of the officer in filing the petition were
also ratified by the board. (Swedish Match
Philippines vs. Treasurer of City of Manila, GR no.
181277,July 3, 2013)
RULE IF THERE ARE SEVERAL PLAINTIFFS OR
PETITIONERS:
- General Rule: The certification against forum
shopping must be signed by all the plaintiffs or
petitioners in a case; otherwise, those who did not
sign will be dropped as parties to the case. (SKM Art
Craft vs. Bauca, GR no. 171282, November 27, 2013)
- Exception: Under reasonable or justifiable
circumstances as when the plaintiffs or petitioners
share a common interest and invoke a common
cause of action or defense, the signature of only one
of them substantially complies with the ROC. (SKM
Art Craft vs. Bauca, supra). This will not be applied if
dishonesty attended the signing of the certification.
PLEADINGS REQUIRING A CERTIFICATION AGAINST
FORUM SHOPPING:
- the certification against forum shopping applies to
the complaint and other initiatory pleadings asserting
a claim for relief. (Sec. 5, Rule 7)
- These initiatory pleadings include not only the
original complaint but also a permissive
counterclaim, cross-claim, third (forth, etc.)-party
complaint, complaint-in-intervention, petition or any
application in which a party asserts his claim for
relief.
- The rules does not require a certification against
forum shopping for a compulsory counterclaim
because it cannot be the subject of a separate and
independent adjudication, as when the counterclaim
is for damages, moral, exemplary or attorney’s fees,
by reason of the alleged malicious and unfounded
suit filed against the defendant. It is, therefore, not an
initiatory pleading. (Santo Tomas university vs. Surla,
294 SCRA 382)
EFFECTS OF NON-COMPLIANCE WITH THE RULE ON
CERTIFICATION AGAINST FORUM SHOPPING:
- Failure to comply with the foregoing requirements
shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be
cause for the dismissal of the case without prejudice,
unless otherwise provided, upon motion and after
hearing. (Sec. 5, Rule 7)
- The submission of a false certification or non-
compliance with any of the undertakings therein shall
constitute indirect contempt of court, without
prejudice to the corresponding administrative and
criminal actions. (Sec. 5, Rule 7)
- If the acts of the party or his or her counsel clearly
constitute willful and deliberate forum shopping, the
same shall be ground for summary dismissal with
prejudice and shall constitute direct contempt, as
well as a cause for administrative sanctions. (Sec. 5,
Rule 7)
EXCEPTIONS TO THE EFFECTS OF NON-COMPLIANCE:
- Non-compliance with the rule requiring a certification
against forum shopping or defect therein is generally
not curable by its subsequent submission or
correction thereof, unless there is a need to relax the
rule on the ground of ‘subsequential compliance’ or
there is the presence of special circumstances or
compelling reasons. (Vda. De Formoso vs. PNB, GR
no. 154704, June 1, 2011)
Q: If a complaint is dismissed for failure to comply with
the required certification against forum shopping, may
the plaintiff appeal from the order of dismissal where
such dismissal is one without prejudice?
A: He cannot appeal from the order. This is because an
order dismissing an action without prejudice is not
appealable. The remedy provided for under Sec. 1, Rule
41 is to avail of the appropriate special civil action under
Rule 65. (Sec. 1(g), Rule 41)
EFFECT OF WILLFUL AND DELIBERATE FORUM
SHOPPING:
- The same shall be a ground for summary dismissal
which means that there is no motion to dismiss and
hearing is required. The dismissal in this case is with
prejudice and shall constitute direct contempt, as
well as cause for administrative sanctions. (Sec. 5,
Rule 7)
EFFECT OF SUBMISSION OF A FALSE CERTIFICATION:
- The submission of a false certification or non-
compliance with any of the undertakings therein shall
constitute indirect contempt of court, without
prejudice to the corresponding administrative and
criminal actions. (Sec. 5, Rule 7)
CIVIL PROCEDURE 33
 CIVIL PROCEDURE
Morillo Notes
Section 6: Contents
[Note: this is a new section under Rule 7
that was added by AM No. 19-10-20-SC]
CONTENTS IN THE PLEADING:
- Every pleading stating a party’s claims or defenses
shall, in addition to those mandated by Section 2,
Rule 7, state the following:
a. Names of witnesses who will be presented
to prove a party’s claim or defense;
b. Summary Of The Witnesses Intended
testimonies, provided that the judicial
affidavits of said witnesses shall be
attached to the pleading and form an
integral part thereof. Only witnesses whose
judicial affidavits are attached to the
pleading shall be presented by the parties
during trial. Except if a party presents
meritorious reasons as basis for the
admission of additional witnesses, no other
witness or affidavit shall be heard or
admitted by the court; and
c. Documentary and object evidence in
support of the allegations contained in the
pleading. (Sec. 6, Rule 7, AM No. 19-10-20-
SC)
RULE 8
MANNER OF MAKING ALLEGATIONS
IN PLEADINGS
Section 1: In general
MANNER OF MAKING ALLEGATIONS (IN GENERAL):
- Every pleading shall contain in a methodical and
logical form, a plain, concise and direct statement of
the ultimate facts, including the evidence on which
the party pleading relies for his or her claim of
defense, as the case may be. (Sec. 1, Rule 8, AM No.
19-10-20-SC)
- If a cause of action or defense relied on is based on
law, the pertinent provisions thereof and their
applicability to him or her shall be clearly and
concisely stated. (Sec. 1, Rule 8, AM No. 19-10-20-
SC)
MEANING OF ULTIMATE FACTS:
- It refers to the essential facts of the claim. A fact is
essential if it cannot be stricken out without leaving
the statement of the cause of action inadequate.
(Ceroferr Realty Corp. vs. CA, 376 SCRA 144).
- The ultimate facts are the important and substantial
facts which form the basis of the primary right of the
plaintiff and make up the wrongful act or omission of
the defendant. (Tantuico, Jr. vs. Republic, 204 SCRA
428)
- The ultimate facts do not refer to the details of
probative matter or the particulars of evidence by
which the material elements are to be established.
They are the principal, determinate, constitutive
34 CIVIL PROCEDURE
facts, upon the existence of which, the entire cause
of action rests. (Tantuico, Jr. vs. Republic, supra)
Section 2: Alternative causes
of action or defenses
PLEADING ALTERNATIVE CAUSES OF ACTIONS OR
DEFENSES:
- A party may set forth two or more statements of a
claim or defense, alternatively or hypothetically,
either in one cause of action or defense in separate
causes of action or defense. (Sec. 2, Rule 8)
- When two or more statements are made in the
alternative and one of them if made independently
would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the
alternative statements. (Sec. 2, Rule 8)
- The subject provision recognizes that the liability of
the defendant may possibly be based on either one
of two or more possible causes of action. The
plaintiff may, for example, believe that the liability of
the carrier may be based either on a breach of
contract of carriage or quasi-delict, but he may not
be certain which of the causes of action would
squarely fit the set of facts alleged in the complaint,
although he is certain that he is entitled to relief.
Therefore, he may state his causes of action in the
alternative. This provision in effect, also relieves a
party from being compelled to choose only one
cause of action.
LA MALLORCA vs. CA
17 SCRA 739
Here, the plaintiffs were allowed to sue based upon a
quasi-delict theory, and in the alternative, upon a breach of
contract, where the death of their child occurred when they
were no longer on board the bus of the common carrier but
at the time the father was in the process of retrieving the
family’s personal belongings from the bus. Although,
ultimately, the case was ruled to be a breach of contract of
carriage, the procedural device of pleading alternative
causes of action was strongly affirmed in this case.
NOTE: The rule allowing alternative defenses is consistent
with even the Omnibus Motion Rule which requires that all
motions attacking a pleading shall include all objections then
available, and all objections not so included shall be deemed
waived. (Sec. 8, Rule 15)
Section 3: Conditions precedent
CONDITIONS PRECEDENT:
- Generally, these are matters which must be complied
with before a cause of action arises.
- When a claim is subject to a condition precedent, the
compliance of the same must be alleged in the
pleading.
- In all pleading, a general averment of the
performance or occurrence of all conditions
precedent shall be sufficient. (Sec. 3, Rule 8)
 CIVIL PROCEDURE
Morillo Notes
EXAMPLES OF CONDITION PRECEDENT:
● A tender of payment is required before making a
consignation. (Art. 1256, NCC);
● Exhaustion of administrative remedies is required in
certain cases before resorting to judicial action.
(Lopez vs. City of Manila, 303 SCRA 448)
● Prior resort to barangay conciliation proceedings is
necessary in certain cases. (Chap. 7, Title I, Book III,
Local Government Code)
● Earnest efforts toward a compromise must be
undertaken when the suit is between members of the
same family and if no effects were in fact made, the
case must be dismissed. (Art. 151, FC) [Note: Such
efforts are not required in special proceedings]
● Arbitration may be a condition precedent when the
contract between the parties provides for arbitration
first before recourse to judicial remedies.
EFFECT OF FAILURE TO COMPLY WITH A CONDITION
PRECEDENT:
- The failure to comply with a condition precedent is
an independent ground for a motion to dismiss: That
a condition precedent for filing the claim has not
been complied with (Sec. 1(j), Rule 16)
Section 4: Capacity
PLEADING CAPACITY TO SUE OR BE SUED:
- Facts showing the capacity of a party to sue or be
sued must be averred. (Sec. 4, Rule 8)
- If a party is suing or sued in a representative
capacity, his authority must also be averred. (Supra)
- If a party is an organized association of person, its
legal existence must likewise be averred. (Supra)
WHEN A PARTY IS QUESTIONING THE CAPACITY TO SUE
OR BE SUED OF ANY OF THE PARTIES:
- A party desiring to raise an issue as to the legal
existence of any party or the capacity of any party to
sue or be sued in a representative capacity, shall do
so by specific denial, which shall include such
supporting particulars as are peculiarly within the
pleader’s knowledge. (Sec. 4, Rule 8)
Section 5: Fraud, mistake, condition of the mind
PLEADING FRAUD, MISTAKE, OR CONDITION OF THE
MIND:
- When making averments of fraud or mistake, the
circumstances constituting such fraud or mistake
must be stated with particularity. (Sec. 5, Rule 8)
- Under the provision, the complaint must state with
particularity the fraudulent acts of the adverse party.
These particulars which would necessarily include
the specific acts of fraud committed against the
plaintiff would help apprise the judge of the kind of
fraud involved in the complaint. → Note that under the
Civil Code, there are various types of frauds, each of
them has its own legal effects. (See Arts. 1170, 1330,
1390, 1344, 1359, 1381, NCC). The same is true with
acts constituting mistake (See Arts. 1331-1334,
NCC)
- Malice, intent, knowledge or other conditions of the
mind of a person may be averred generally. (Sec. 5,
Rule 8). Unlike in fraud or mistake, they need not be
stated with particularity. The rule is borne out of
human experience. It is difficult to state the
particulars constituting these matters. Hence, a
general averment is sufficient.
Section 6: Judgment
PLEADING A JUDGMENT:
- In pleading a judgment or decision of a domestic or
foreign court, judicial or quasi-judicial tribunal, or of a
board or officer, it is sufficient to aver the judgment
or decision without setting forth matter showing
jurisdiction to render it. (Sec. 6, Rule 8)
- An authenticated copy of the judgment or decision
shall be attached to the pleading. (Sec. 6, Rule 8, AM
No. 19-10-20-SC)
- Under Sec. 3(n), Rule 131, there is a disputable
presumption that “a court, or judge acting as such,
whether in the Philippines or elsewhere, was acting
in the lawful exercise of jurisdiction.”
Section 7: Action or defense based on document
PLEADING ACTIONABLE DOCUMENTS:
- Whenever an action or defense is based upon a
written instrument or document, the substance of
such instrument or document shall be set forth in the
pleading, and the original or a copy thereof shall be
attached to the pleading as an exhibit, which shall be
deemed to be a part of the pleading. (Sec. 7, Rule 8)
- The plaintiff’s cause of action or the defendant’s
defense is based upon a written instrument or
document. The document used in such cases is what
is commonly termed an “actionable document”
which, in current usage is referred to as the
document relied upon by either the plaintiff or the
defendant as when the plaintiff sues on a written
contract of lease. (Araneta, Inc. vs. Lyric Factor
Exchange, 58 Phil. 736)
- Examples:
- In an action for collection of money, the
actionable document would be the
promissory note executed by the defendant
in favor of the plaintiff.
- In an action for foreclosure of a mortgage,
the actionable document would be the deed
of mortgage.
- If the defendant alleges that the debt has
been paid, the receipt of payment issued by
the plaintiff would be the actionable
document.
Section 8: How to contest such document
HOW TO CONTEST AN ACTIONABLE DOCUMENT; OATH
REQUIRED:
- When the action is founded upon a document
pleaded in the manner required by Sec. 7, Rule 8,
the party, who has no intent of admitting the
genuineness and due execution of the document,
must contest the same by (1) specifically denying the
genuineness and due execution of the document
CIVIL PROCEDURE 35
 CIVIL PROCEDURE
Morillo Notes
under oath; and (2) setting forth what he claims to be
the facts. (Sec. 8, Rule 8)
- A mere specific denial of the actionable document is
insufficient. The denial must be coupled with an oath.
In current usage, this means that the denial must be
verified. The absence of an oath will result in the
implied admission of the due execution and
genuineness of the document. (Sec. 8, Rule 8)
WHEN AN OATH IS NOT REQUIRED:
a. When the adverse party does not appear to be a
party to the instrument; or
b. When compliance with an order for an inspection of
the original instrument is refused. (Sec. 8, Rule 8)
MEANING OF ADMISSION:
- By the admission of the genuineness and due
execution of an instrument is meant that the party
whose signature it bears admits that he signed it or
that it was signed by another for him with authority;
that, at the time it was signed, it was in words and
figures exactly as set out in the pleadings of the
party relying upon it; that the document was
delivered; and that any formal requisites required by
law, such as a seal, acknowledgment, or revenue
stamp, which it lacks, are waived by him. (Hibberd
vs. Rohde and Mcmillian, 32 Phil. 476)
DEFENSES CUT OFF BY THE ADMISSION OF
GENUINENESS AND DUE EXECUTION:
- When a party is deemed to have admitted the
genuineness and due execution of an actionable
document, defenses that are implied from said
admission are necessarily waived like the defenses
of forgery of the document, lack of authority to
execute the document, that the party charged signed
the document in some other capacity than that
alleged in the pleading, or that the document was
never delivered. (Hibberd vs. Rohde and Mcmillian,
supra)
- Also cut off by the admission is the defense that the
document was not in words and figures as set out in
the pleadings. (Imperial Textile vs. CA, 183 SCRA
584)
DEFENSES NOT CUT OFF BY THE ADMISSION OF
GENUINENESS AND DUE EXECUTION:
- The following defenses maybe interposed despite
the implied admission of the genuineness and due
execution of the document:
a. Payment or non-payment;
b. Want of consideration;
c. Illegality of consideration;
d. Usury; and
e. Fraud
- These defenses are not inconsistent with the
admission of the genuineness and due execution of
the instrument and are not barred. (Hibberd vs.
Rohde and Mcmilliam, supra)
- It is submitted that prescription, release, waiver,
statute of frauds, estoppel and former recovery or
discharge in bankruptcy are not likewise barred,
these defenses having no direct relationship to the
concepts of “genuineness and due execution.”
36 CIVIL PROCEDURE
Section 9: Official document or act
PLEADING ON OFFICIAL DOCUMENT OR ACT:
- In pleading an official document or official act, it is
sufficient to aver that the document was issued or
the act was done in compliance with law. (Sec. 9,
Rule 8, AM No. 19-10-20-SC)
Section 10: Specific denial
Section 10. Specific denial. — A defendant must specify each
material allegation of fact the truth of which he or she does not
admit and, whenever practicable, shall set forth the substance of
the matters upon which he or she relies to support his or her denial.
Where a defendant desires to deny only a part of an averment, he
or she shall specify so much of it as is true and material and shall
deny only the remainder. Where a defendant is without knowledge
or information sufficient to form a belief as to the truth of a material
averment made to the complaint, he or she shall so state, and this
shall have the effect of a denial.
EFFECT OF ABSENCE OF A SPECIFIC DENIAL:
- Under Sec. 11, Rule 8, material avernments in the
complaint (other than those as to the amount of
unliquidated damages) not specifically denied shall
be deemed admitted.
- If the allegations are deemed admitted, there is no
more triable issue between the parties and if the
admissions appear in the answer of the defendant,
the plaintiff may file a motion for judgment on the
pleadings pursuant to Rule 34.
- An admission in a pleading cannot be controverted
by the party making such admission because the
admission is conclusive as to him. All proofs
submitted by him contrary thereto or inconsistent
therewith should be ignored whether an objection is
interposed by a party or not. (Republic vs. Sarabia,
468 SCRA 142).
- Said admission is a judicial admission, having been
made by a party in the course of the proceedings in
the same case, and does not require proof. A party
who desires to contradict his own judicial admission
may do so only in either of two ways: (a) By showing
that the admission was made through palpable
mistake; or (b) That no such admission was made.
(Sec. 4, Rule 129).
PURPOSE OF A SPECIFIC DENIAL:
- The purpose of requiring the defendant to make a
specific denial is to make him disclose the matters
alleged in the complaint which he succinctly intends
to disprove at the trial, together with the matter
which he relied upon to support the denial. The
parties are compelled to lay their cards on the table.
(PBCom vs. Go, 642 SCRA 693)
KINDS OF SPECIFIC DENIALS:
1. Absolute Denial:
- The defendant specifies each material allegation of
fact the truth of which he does not admit and,
whenever practicable, sets forth the substance of the
matters upon which he relies to support his denial.
(Sec. 10, Rule 8)
 CIVIL PROCEDURE
Morillo Notes
EXAMPLE: “Defendant denies the truth of the
allegations in par. 7 of the complaint alleging that he
owes the plaintiff P450,000.00, the truth of the matter
being that it is the Plaintiff who owes the defendant
the same amount.
NOTE: Here, the defendant absolutely denies his
liability and alleges what to him are the actual facts.
In making a specific denial, reference must be made
to the paragraph sought to be denied. Since the rule
requires that the defendant must “specify each
material allegation of fact,” a denial of the allegations
in each paragraph is required.
2. Partial Denial:
- When the defendant denies only part of the
averment. If he chooses this type of denial, he
specifies that part the truth of which he admits and
denies only the remainder.
EXAMPLE: In an action for damages, the defendant
avers: “Defendant admits the allegations in par. 5 of
the complaint, that Plaintiff sustained injuries when
his car collided with the herein Defendant’s car, but
denies the allegation that the collision occurred
through Defendant’s fault.”
3. Denial by Disavowal of Knowledge:
- Where the defendant alleges that he “is without
knowledge or information sufficient to form a belief
as to the truth of a material averment made in the
complaint. This type of specific denial must be made
sincerely and in good faith. (Warner Barnes & Co. vs.
Reyes, 103 Phil. 662)
EXAMPLE: Mr. D signs a promissory note in favor of
Mr. P. Since Mr. D failed to pay despite demand, a
suit was brought against him. The complaint duly
pleaded the promissory note as an actionable
document. Mr. D denies the alleged promissory note
by averring lack of knowledge of the note. This
averment appears to be one in bad faith and shall be
considered as an admission because it is absurd for
Mr. D not to know of the promissory note he himself
signed.
Section 11: Allegations not specifically denied deemed
admitted
ALLEGATIONS NOT SPECIFICALLY DENIED DEEMED
ADMITTED:
- Material averments in a pleading asserting a claim or
claims, other than those as to the amount of
unliquidated damages, shall be deemed admitted
when not specifically denied. (Sec. 11, Rule 8, AM
No. 19-10-20-SC)
MATTERS NOT DEEMED ADMITTED BY THE FAILURE TO
MAKE A SPECIFIC DENIAL:
- The following are nevertheless, not deemed admitted
by the failure to make a specific denial in a party’s
responsive pleading:
a. Amount of unliquidated damages (Sec. 11,
Rule 8);
b. Conclusions in a pleading because only
ultimate facts need be alleged in a pleading.
(Sec. 1, Rule 8)
c. Non-material averments or allegations
because only material allegations have to be
denied. (Sec. 11, Rule 8)
Section 12: Affirmative defenses
[Note: This is a new provision under AM No. 19-10-20-SC]
DEFINITION OF AFFIRMATIVE DEFENSE:
- It is an allegation of a new matter which, while
hypothetically admitting the material allegations in
the pleading of the claimant, would nevertheless
prevent or bar recovery by him or her. (Sec. 5, Rule
6)
GROUNDS OF THE DEFENDANT FOR RAISING
AFFIRMATIVE DEFENSES:
- A defendant shall raise his or her affirmative
defenses in his or her answer, which shall be limited
to the reasons set forth under Section 5(b), Rule 6,
and the following grounds:
1. That the court has no jurisdiction over the
person of the defending party;
2. That venue is improperly laid;
3. That the plaintiff has no legal capacity to
sue;
4. That the pleading asserting the claim states
no cause of action; and
5. That a condition precedent for filing the
claim has not been complied with. (Sec.
12(a), Rule 8, AM No. 19-10-20-SC)
WAIVER OF AFFIRMATIVE DEFENSES:
- Failure to raise the affirmative defenses at the earliest
opportunity at the earliest opportunity shall
constitute a waiver thereof. (Sec. 12(b), Rule 8, AM
No. 19-10-20-SC)
PERIOD OF THE COURT RESOLVE AFFIRMATIVE
DEFENSES:
- The court shall motu proprio resolve the above
affirmative defenses within thirty (30) calendar days
from the filing of the answer. (Sec. 12(c), Rule 8, AM
No. 19-10-20-SC)
- As to the other affirmative defenses under the first
paragraph of Section 5(b), Rule 6, the court may
conduct a summary hearing within fifteen (15)
calendar days from the filing of the answer. Such
affirmative defenses shall be resolved by the court
within thirty (30) calendar days from the termination
of the summary hearing. (Sec.12(d), Rule 8, AM No.
19-10-20-SC)
REMEDY IF THE AFFIRMATIVE DEFENSES IS DENIED:
- Affirmative defenses, if denied, shall not be the
subject of a motion for reconsideration or petition for
certiorari, prohibition or mandamus, but may be
among the matters to be raised on appeal after
a judgment on the merits. (Sec. 12(e), Rule 8,
AM No. 19-10-20-SC)
Section 13: Striking out of pleading
CIVIL PROCEDURE 37
 CIVIL PROCEDURE
Morillo Notes
or matter contained therein
[Note: This is former Section 12, Rule 7,
in the old Rules]
STRIKING OUT OF PLEADING OR MATTER CONTAINED
THEREIN:
- Upon motion made by a party before responding to a
pleading or, if no responsive pleading is permitted by
these Rules, upon motion made by a party within
twenty (20) calendar days after the service of the
pleading upon him or her, or upon the court's own
initiative at any time, the court may order any
pleading to be stricken out or that any sham or false,
redundant, immaterial, impertinent, or scandalous
matter be stricken out therefrom. (Sec.13, Rule 8, AM
No. 19-10-20-SC)
RULE 9
EFFECT OF FAILURE TO PLEAD
Section 1: Defenses and objection not pleaded
DEFENSES AND OBJECTION NOT PLEADED:
- Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed
waived. However, when it appears from the
pleadings or the evidence on record that the court
has no jurisdiction over the subject matter, that there
is another action pending between the same parties
for the same cause, or that the action is barred by a
prior judgment or by statute of limitations, the court
shall dismiss the claim. (Sec. 1, Rule 9)
Section 2: Compulsory counterclaim, or cross-claim,
not set up barred
COMPULSORY COUNTERCLAIM, OR CROSS-CLAIM,
NOT SET UP BARRED:
- A compulsory counterclaim, or a cross-claim, not set
up shall be barred. (Sec. 2, Rule 9)
Section 3: Default, Declaration of
NATURE OF DEFAULT:
- Default is a procedural concept that occurs when the
defending party fails to file his or her answer within
the reglementary period. (Riano (2014), Civil
Procedure Vol. 1, p. 362)
- A declaration or order of default is issued as a
punishment for unnecessary delay in joining issues.
(Vlason Enterprises Corp. vs. CA, GR no. 121662-
64, July 6, 1999)
- The rule on default clearly establishes the “failure to
answer within the time allowed therefor” as the
ground for a declaration of default. (Sec. 3, Rule 9)
- Default does not technically occur from the failure of
the defendant to attend either the pre-trial or the trial.
(Sec. 3, Rule 9). Therefore, the failure to of the
defendant to appear at the pre-trial while a cause for
38 CIVIL PROCEDURE
the court to order the plaintiff to present his evidence
ex parte and for the court to render judgment on the
basis thereof → is not a ground for a declaration of
default as the term is contemplated under Sec. 3,
Rule 9. While the effect of the failure of the defendant
to appear at the pre-trial is similar to that of default,
under the Rules, this consequence is not to be
called a declaration of default.
The term “Default” in Rule 9 is not identified with the
failure to appear in court, but with the failure of the
defending party to answer.
REQUISITES BEFORE A DEFENDING PARTY MAY BE
DECLARED IN DEFAULT:
a. The court had validly acquired jurisdiction over the
person of the defending party, either by service of
summons or voluntary appearance;
b. The defending party must have failed to file his
answer within the time allowed therefor;
c. The claiming party must file a motion to declare the
defending party in default;
d. The claiming party must prove that the defending
party has failed to answer within the period provided
by the Rules of Court. (Sablas vs. Sablas, 526 SCRA
292);
e. The defending party must be notified of the motion to
declare him in default. (Sec. 3, Rule 9);
f. There must be a hearing set on the motion to declare
the defending party in default. (Sps. Delos Santos vs.
Carpio, 501 SCRA 390)
NO MOTU PROPRIO DECLARATION OF DEFAULT:
- The rule on default requires the filing of a motion and
notice of such motion to the defending party. It is not
enough that the defendant fails to answer the
complaint within the reglementary period. The trial
court cannot, motu proprio, declare a defendant in
default, as the rule leaves it up to the claiming party
to protect his or its interests. The trial court should
not, under any circumstances, act as counsel of the
claiming party.” (Sablas vs. Sablas, 526 SCRA 292)
EXTENSION OF THE TIME TO ANSWER:
- The trial court has the discretion not only to extend
the time for filing an answer but also allow an answer
to be filed after the reglementary period. Therefore, it
is erroneous for the CA to rule that the trial court has
no recourse but to declare the defending party in
default for failure to file a timely answer. (Sablas vs.
Sablas, Supra)
EFFECT OF A DECLARATION/ORDER OF DEFAULT:
- The party declared in default loses his standing in
court. The loss of such standing prevents him from
taking part in trial. (Sec. 3(a), Rule 9)
- While the defendant can no longer take part in the
trial, he is 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.
- A declaration of default is not tantamount to an
admission of the truth or the validity of the plaintiff’s
claims. (Monarch Insurance vs. CA, 333 SCRA 71)
EFFECT OF PARTIAL DEFAULT:
 CIVIL PROCEDURE
Morillo Notes
- When a pleading asserting a claim states a common
cause of action against several defending parties,
some of whom answer and the others fail to do so,
the court shall try the case against all upon the
answers thus filed and render judgment upon the
evidence presented. (Sec. 3(c), Rule 9)
ACTION OF THE COURT AFTER THE
DECLARATION/ORDER OF DEFAULT:
- Under Sec. 3, Rule 9, when a party is declared in
default, the court may do either of the 2 things:
1. proceed to render judgment granting the
claimant such relief as his pleading may
warrant; or
2. require the claimant to submit evidence ex
parte.
- The choice of which action to take is a matter of
judicial discretion.
COURT NOT REQUIRED TO RECEIVE EVIDENCE
PERSONALLY:
- The court need not personally receive the evidence if
it decides to hear the evidence of the claiming party.
The reception of the evidence may be delegated to
the clerk of court. (Sec. 3, Rule 9)
REMEDIES OF A DEFENDING PARTY DECLARED IN
DEFAULT:
a. Remedy after notice of order and before judgment;
- A party declared in default may, at any time
after notice thereof and before judgment,
file a motion under oath to set aside the
other of default and properly show that:
a. the failure to answer was due to
fraud, accident, mistake,
excusable negligence; and
b. He has a meritorious defense. (ie.
there must be an affidavit of merit.
b. Remedy after judgment and before judgment
becomes final and executory;
- If the judgment has already been rendered
when the defendant discovered the default,
but before the same has become final and
executory, he may file a motion for new trial
under Rule 37. He may also appeal from the
judgment as being contrary to the evidence
or the law. (Republic vs. Sandiganbayan,
540 SCRA 431)
c. Remedy after the judgment becomes final and
executory:
- The defendant may file a petition for relief
from judgment under Rule 38. (Republic vs.
Sandiganbayan, supra)
d. Remedy when defendant was improperly declared in
default:
- The defendant must file a petition for
certiorari. (Viacrusis vs. Estenzo, GR no. L-
18457, June 30, 1962)
CURRENT JUDICIAL TREND ON DEFAULTS:
1. The current judicial trend is to avoid defaults and,
therefore, courts are enjoined to be liberal in setting
aside orders of default. (Ampeloquio vs. CA, 333
SCRA 465)
2. The issuance of orders of default should be the
exception rather than the rule. Default orders shall be
allowed only in clear cases of obstinate refusal by the
defendant to comply with the orders of the trial court.
because suits should, as much as possible, be
decided on the merits and not on technicalities.
Thus, in practice, an answer under oath containing
the defenses of the defendant, may (under the rules
on liberal interpretation) be deemed as the equivalent
of an affidavit of merit. (Lorbes vs. CA, 351 SCRA
716; Samartino vs. Raon, 383 SCRA 664)
3. The policy of the law is to have every litigant’s case
tried on the merits as much as possible. Hence,
judgments by default are frowned upon. A case is
best decided when all contending parties are able to
ventilate their respective claims, present their
arguments and adduce evidence in support thereof.
(Sablas vs Sablas, 526 SCRA 292)
IMPLIED LIFTING OF THE ORDER OF DEFAULT:
- illustrated in the case below:
REPUBLIC vs. SANDIGANBAYAN
540 SCRA 431
Under the ROC, a defending party may be declared in
default, upon motion and notice, for failure to file an answer
within the allowable period. As a result, the defaulting party
cannot take part in the trial albeit he is entitled to notice of
subsequent proceedings.
In this case, former Pres. Marcos was declared in default
for failure to file an answer. He died in Hawaii as an exile
while this case was pending, since he and his family fled to
Hawaii in 1986 during a people-power revolt in Metro
Manila. His representatives failed to file a motion to lift the
order of default. Nevertheless, respondent, as executor of
his father’s estate, filed a motion for leave to file a
or
responsive pleading, three motions for extension to file an
answer, and a motion for a bill of particulars of all of which
were granted by the anti-graft court.
Given the existence of the default order then, what is
the legal effect of the granting of the motions to file a
responsive pleading and bill of particulars? → The SC’s
view, the effect is that the default order against the former
president is deemed lifted.
While it is that there was no positive act on the part of the
court to lift the default order because there was no motion
nor order to that effect, the anti-graft court’s act of granting
respondent the opportunity to file a responsive pleading
meant the lifting of the default order on terms the court
deemed proper in the interest of justice. It was the
operative act of lifting the default order and thereby
reinstating the position of the original defendant whom
respondent is representing, founded on the court’s
discretionary power to set aside orders of default.
EXTENT OF RELIEF IN A JUDGMENT BY DEFAULT:
- The reliefs that may be granted in default situations
are restricted by Sec. 3(d), Rule 9, ROC.
- Thus, if the complaint seeks to recover P1Million but
the evidence of the complaint seeks to recover
P1.5Million, the court has no authority to grant the
latter amount despite the evidence.
- This is because, under the Rules, “A judgment
rendered against a party in default shall not exceed
the amount or be different in kind from that prayed

CIVIL PROCEDURE 39

 CIVIL PROCEDURE
Morillo Notes
for nor award unliquidated damages”. (Sec. 3(d),
Rule 9)
CASES WHERE A DECLARATION/ORDER OF DEFAULT
CANNOT BE MADE:
- Default is not allowed in the following actions:
a. Annulment of marriage;
b. Declaration of nullity of Marriage; and
c. Legal Separation (Sec. 3(e), Rule 9)
- If no answer is filed in any of the above actions, the
court shall order the Solicitor-General or any of his or
her deputized public prosecutors to investigate
whether or not collusion exists between the parties.
(Sec. 3(e), Rule 9, AM No. 10-10-20-SC)
- If there is no collusion, the court shall order the
Solicitor-General or any or his or her public
prosecutors to intervene for the State in order to see
to it that the evidence submitted is not fabricated.
(Sec. 3(e), Rule 9, AM No. 19-10-20-SC)
JUDGMENT BY DEFAULT FOR REFUSAL TO COMPLY
WITH THE MODES OF DISCOVERY:
- General Rule: A default order and a default
judgment is triggered by the failure of the defending
party to file the required answer. (Sec. 3, Rule 9).
- Exception: A judgment by default may be rendered in
the following cases despite an answer having been
filed:
- If a disobedient party refuses to obey an
order requiring him to comply with the
various modes of discovery. (Sec. 3(c), Rule
29); or
- If a party or officer or managing agent of a
party willfully fails to appear before the
officer who is to take his deposition, or a
party fails to serve answers to
interrogatories. (Sec. 5, Rule 29)
RULE 10
AMENDED AND SUPPLEMENTAL PLEADINGS
Section 1: Amendments in general
AMENDMENTS IN GENERAL:
- Pleadings may be amended by adding or striking out
an allegation or the name of any party, or by
correcting a mistake in the name of a party or a
mistaken or inadequate allegation or description in
any other respect, so that the actual merits of the
controversy may speedily be determined, without
regard to technicalities, in the most expeditious and
inexpensive manner. (Sec. 1, Rule 10)
Section 2: Amendments as a matter of right
AMENDMENT AS A MATTER OF RIGHT:
- A plaintiff has the right to amend his complaint once
at (a) any time before a responsive pleading is served
by the other party or (b) in case of a reply to which
there is no responsive pleading, at any time within 10
40 CIVIL PROCEDURE
calendar days after it is served. (Sec. 2, Rule 9, AM
No. 19-10-20-SC). Therefore, before an answer is
served on the plaintiff, the latter may amend his
complaint as a matter of right. The defendant may
also amend his complaint as a matter of right, before
a reply is served upon him.
NOTE: Sec. 2, Rule 10 → refers to an amendment made
before the Court of Appeals (CA). The CA is vested with
discretion to admit or deny amended petitions filed
before it. (Navarro vs. Vda. De Taroma, 478 SCRA 336)
- The right to amend a pleading may be exercised only
once. Hence, even if no responsive pleading has yet
served, if the amendment is subsequent to a
previous amendment made as a matter of right, the
subsequent amendment must be with leave of court.
- Before the service of a responsive pleading, a party
has the absolute right to amend his pleading,
regardless of whether a new cause of action or
change in theory is introduced. Since a motion to
dismiss is not a responsive pleading, a plaintiff may
file an amended complaint even after the original
complaint was ordered dismissed, provided the
order of dismissal is not yet final. (Bautista vs. Maya-
Maya Cottages, Inc., 476 SCRA 416)
- A motion to dismiss is not a responsive pleading.
(Alphine Lending Investors vs. Corpuz, 508 SCRA 45;
Bautista vs. Maya-Maya Cottages, Inc., Supra)
APPLICABILITY OF MANDAMUS:
- The court would be in error if it refuses to admit an
amended pleading when its exercise is a matter of
right. This error is correctible by mandamus because
the trial court’s duty to admit an amended complaint
made is a matter of right is purely ministerial.
(Alphine Lending Investors vs. Corpuz, 508 SCRA 45)
Section 3: Amendments by leave of court
AMENDMENT BY LEAVE OF COURT:
- Leave of Court is required for an amendment made
after service of a responsive pleading. For example,
the plaintiff cannot amend his complaint by changing
his cause of action or adding a new one after the
defendant’s answer without leave of court. (Sec. 3,
Rule 10; Calo and San Jose vs. Roldan, 76 Phil. 445)
- Orders of the court upon the matters provided in this
Section shall be made upon motion filed in court,
and after notice to the adverse party, and an
opportunity to be heard. (Sec. 3, Rule 10)
- After a responsive pleading is filed, an amendment to
the complaint may be substantial and will
correspondingly require a substantial alteration in the
defenses of the adverse party. The amendment of
the complaint is not only unfair to the defendant but
will cause unnecessary delay in the proceedings.
Leave of court is required. On the other hand, where
no responsive pleading has yet been served, no
defenses would be altered. The amendment of the
pleading will not then require leave of court. (Siasco
vs. CA, 303 SCRA 186)
- The clear intent of Sec. 3, Rule 10 is that this should
only be applied when, despite a substantial change
or alteration in the cause of action or defense, the
 CIVIL PROCEDURE
Morillo Notes
amendments sought to be made shall serve the
higher interest of substantial justice, and prevent
delay and equally promote the laudable objective of
the ROC which is to secure a “just, speedy and
inexpensive disposition of every action and
proceeding.” (Phil. Ports Authority vs. William
Gothong & Aboitiz (WG&A), 542 SCRA 514)
WHEN LEAVE OF COURT SHALL BE REFUSED:
- Such leave of court shall be refused if it appears to
the court that;
a. The motion was made with intent to delay or
confer jurisdiction on the court; or
b. The pleading stated no cause of action from
the beginning which could be amended. (Sec.
3, Rule 10, AM No. 19-10-20-SC)
Section 4: Formal Amendments
FORMAL AMENDMENTS:
- A defect in the designation of the parties and other
clearly clerical or typographical errors may be
summarily corrected by the court at any stage of the
action, at its initiative or on motion, provided no
prejudice is caused thereby to the adverse/ (Sec. 4,
Rule 10)
Section 5: No amendment necessary to conform to
conform to or authorize presentation of evidence
[Note: This is amended by AM No. 19-10-20-SC]
NO AMENDMENT TO CURE A FAILURE TO STATE A
CAUSE OF ACTION OR TO CONFORM TO THE EVIDENCE:
- Under the old rules, when evidence not within the
issues raised in the pleadings is presented by the
parties during the trial, the pleadings are
subsequently amended on motion of a party to
conform to such evidence. Thus, a complaint which
fails to state a cause of action may be cured by
evidence presented during the trial. (Swagman
Hotels & Travel Inc. v. Court of Appeals, G.R. No.
161135, April 8, 2005)
- Now, Under amended Rules of Civil Procedure (AM
No. 19-10-20-SC), it expressly states that “When
issues not raised by the pleadings are tried with the
express or implied consent of the parties, they shall
be treated in all respects as if they had been raised in
the pleadings. No amendment of such pleadings
deemed amended is necessary to cause them to
conform to the evidence.” (Sec. 5, Rule 10, AM No.
19-10-20-SC)
Section 6: Supplemental pleadings
SUPPLEMENTAL PLEADINGS:
- A supplemental pleading is one which sets forth
transactions, occurrences, or events which have
happened since the date of the pleading sought to
be supplemented. (Sec. 6, Rule 10)
- The filing of supplemental pleadings requires leave of
court. The court may allow the pleading only upon
such terms as are just. This leave of court is sought
by the filing of a motion with notice to all parties.
(Sec. 6, Rule 10)
CAUSE OF ACTION IN SUPPLEMENTAL PLEADINGS:
- When the cause of action in the supplemental
complaint is different from the cause of action
mentioned in the original complaint → the court
should not admit the supplemental complaint. (Asset
Privatization Trust vs. CA, 324 SCRA 533)
ANSWER TO A SUPPLEMENTAL COMPLAINT IS NOT
MANDATORY:
- See. Sec.7, Rule 11
- A supplemental pleading only serves to supplement
or add something to the primary pleading. It does not
replace the original but it is the continuation of the
complaint. (Chan vs. Chan, 569 SCRA 106)
Section 7: Filing of amended pleadings
FILING OF THE AMENDED PLEADINGS:
- When any pleading is amended, a new copy of the
entire pleading, incorporating the amendments,
which shall be indicated by appropriate marks, shall
be filed. (Sec. 7, Rule 10)
AMENDMENT TO CORRECT A JURISDICTIONAL DEFECT:
If filed before a responsive If filed after a responsive
pleading is served. pleading is served.
This is a matter of Right This must be with Leave of
Court.
Section 8: Effect of amended pleadings
EFFECT OF AMENDED PLEADINGS:
- An amended pleading supersedes the pleading that
it amends. However, admissions in superseded
pleadings may be offered in evidence against the
pleader, and claims or defenses alleged therein not
incorporated in the amended pleading shall be
deemed waived. (Sec. 8, Rule 10, AM No. 19-10-20-
SC)
EFFECT OF THE AMENDMENT ON THE ORIGINAL
PLEADING:
- An amended pleading supersedes the original one
which it amends. However, it has been held that the
original complaint is deemed superseded and
abandoned by the amendatory complaint only if the
latter introduces a new or different cause of action.
(Sec. 8, Rule 10; Verzosa vs. CA, 299 SCRA 100)
EFFECT OF THE AMENDMENT ON ADMISSIONS MADE IN
THE ORIGINAL PLEADING:
- Admissions made in the original pleadings cease to
be judicial admissions. They are to be considered as
extrajudicial admissions. (Ching vs. CA, 331 SCRA
16; Torres vs. CA, 131 SCRA 24)
- However, admissions in superseded pleadings may
be offered in evidence against the pleader. (Sec. 8,
Rule 10; Ching vs. CA, Supra)
CIVIL PROCEDURE 41
 CIVIL PROCEDURE
Morillo Notes
EXISTING COUNTERCLAIM OR CROSS-CLAIM:
- A compulsory counterclaim or a cross-claim that a
defending party has at the time he or she files his or
RULE 11
her answer shall be contained therein. (Sec. 8, Rule
WHEN TO FILE RESPONSIVE PLEADINGS 11, AM No. 19-10-20-SC)
(Amended by AM No. 19-10-20-SC)

COUNTERCLAIM OR CROSS-CLAIM ARISING AFTER

ANSWER:
Matrix of Period: - A counterclaim or a cross-claim which either
matured or was acquired by a party after serving his
Responsive or her pleading may, with the permission of the
Period Reckoning Point
Pleading
court, be presented as a counterclaim or a cross-
claim by supplemental pleading before judgment.
After service of
Answer to the (Sec. 9, Rule 11, AM No. 19-10-20-SC)
Within 30 Calendar Summons unless a
Complaint
Days different period is
(Sec. 1) OMITTED COUNTERCLAIM OR CROSS-CLAIM:
fixed by Court.
- When a pleader fails to set up a counterclaim or a
Answer of a cross-claim through oversight, inadvertence, or
Defendant Foreign After receipt of excusable neglect, or when justice requires, he or
Within 60 Calendar
Private Juridical
Days
summons by such she may, by leave of court, set up the counterclaim
Entity entity. or cross-claim by amendment before judgment. (Sec.
(Sec. 2) 10, Rule 11, AM No. 19-10-20-SC)

A Matter of Right: EXTENSION OF TIME TO FILE AN ANSWER:

After being served
- A defendant may, for meritorious reasons, be
Within 30 Calendar with a copy thereof.
Answer to the Days granted an additional period of not more than thirty
Amended (30) calendar days to file an answer. A defendant is
Complaint Not a Matter of only allowed to file one (1) motion for extension of
(Sec. 3) Right: From notice of the time to file an answer. (Sec. 11, Rule 11, AM No. 19-
order admitting the 10-20-SC)
Within 15 Calendar same.
Days A motion for extension to file any pleading, other
than an answer, is prohibited and considered a mere
Answer to scrap of paper. The court, however, may allow any
counterclaim or Within 20 Calendar
From Service other pleading to be filed after the time fixed by
cross-claim Days
these Rules. (Sec. 11, Rule 11, AM No. 19-10-20-SC)
(Sec. 4)

A Matter of Right: - It is not correct to say that a trial court has no

After being served recourse but to declare a defending party in default
Within 30 Calendar with a copy thereof. when he fails to file an answer within the required
Answer to Third Days period. The rule is that the defendant’s answer
(Forth, etc.)-party should be admitted where it is filed before a
complaint. Not a Matter of declaration of default and no prejudice is caused to
(Sec. 5) Right: From notice of the the plaintiff. (Sablas vs. Sablas, 526 SCRA 292)
order admitting the
Within 15 Calendar same.
Days
RULE 12
If allowed under BILL OF PARTICULARS
Sec. 10, Rule 6: From the service of
Reply
pleading responded
(Sec. 6)
Within 15 Calendar to.
Days
Section 1: When applied for; purpose
From notice of the
Answer to
order admitting the
Supplemental Within 20 Calendar PRELIMINARY NOTE:
same, unless a
Complaint Days - Although under the ROC, the defendant is required
different period is
(Sec. 7) to answer the complaint within 30 calendar days
fixed by the court.
from the service of summons (Sec. 1, Rule 11, AM
No. 19-10-20-SC), the defendant need not to file his
ANSWER TO THE SUPPLEMENTAL COMPLAINT: answer to the complaint within the required period if
- The answer to the complaint shall serve as the there are matters in the complaint, which are vague
answer to the supplemental complaint if no new or or ambiguous or not averred with sufficient
supplemental answer is filed. (Sec. 7, Rule 11, AM definiteness. Instead, he may file a Motion for Bill of
No. 19-10-20-SC) Particulars under Rule 12, ROC.

WHEN TO FILE A MOTION FOR BILL OF PARTICULARS:

42 CIVIL PROCEDURE

 CIVIL PROCEDURE
Morillo Notes
- Before responding to a pleading, a party may move
for a definite statement or for a bill of particulars of
any matter, which is not averred with sufficient
definiteness or particularity, to enable him or her
properly to prepare his or her responsive pleading. If
the pleading is a reply, the motion must be filed
within ten (10) calendar days from service thereof.
Such motion shall point out the defects complained
of, the paragraphs wherein they are contained, and
the details desired. (Sec. 1, Rule 12, AM No. 19-10-
20-SC)
PURPOSE OF A MOTION FOR BILL OF PARTICULARS:
- The purpose is to seek an order from the court
directing the pleader to submit a bill of particulars
which avers matters with “sufficient definiteness or
particularity” to enable the movant to properly
prepare his responsive pleading. (Sec. 1, Rule 12)
- In a less technical terms, a function of a bill of
particulars is to clarify the allegations in the pleading
so an adverse party may be informed with certainty
of the exact character of the cause of action or
defense. Without the clarifications sought by the
motion, the movant may be deprived of the
opportunity to submit an intelligent responsive
pleading.
- An allegation that the “defendant acted in unlawful
concert with the other defendant in illegally amassing
assets, property and funds in amounts
disproportionate to the latter’s income” is a proper
subject of a motion for bill of particulars. Plaintiff is
bound to clarify the specific nature, manner and
extent of the alleged collaboration between the
defendants. The allegation in the complaint does not
actually state the ultimate facts to show the alleged
“unlawful concert.” Allegations couched in general
terms are not statements of ultimate facts. (Republic
vs. Sandiganbayan, 540 SCRA 431)
PURPOSE OF A MOTION FOR BILL OF PARTICULARS IN
A CRIMINAL CASE:
- To enable the movant to (a) properly plead, and (b)
prepare for trial. (Sec. 9, Rule 116)
REQUIREMENT FOR THE MOTION FOR BILL OF
PARTICULARS:
- Aside from the requirements for a motion as set forth
in Rule 15, the motion shall point out the (a) defects
complained of; (b) paragraphs wherein they are
contained; and (c) details desired. (Sec. 1, Rule 12)
Section 2: Action by the court
ACTION BY THE COURT:
- Upon the filing of the motion, the clerk of court must
immediately bring it to the attention of the court,
which may either deny or grant it outright, or allow
the parties the opportunity to be heard. (Sec. 2, Rule
12)
Section 3: Compliance with order
COMPLIANCE WITH ORDER:
- If the motion is granted, either in whole or in part, the
compliance therewith must be effected within ten
(10) calendar days from notice of the order, unless a
different period is fixed by the court. The bill of
particulars or a more definite statement ordered by
the court may be filed either in a separate or in an
amended pleading, serving a copy thereof on the
adverse party. (Sec. 3, Rule 12, AM No. 19-10-20-
SC)
Section 4: Effect of non-compliance
EFFECT OF NON-COMPLIANCE OR INSUFFICIENT
COMPLIANCE WITH THE ORDER OF THE COURT:
- If the order is not obeyed, or in case of insufficient
compliance therewith, the court may order the
striking out of the pleading or the portions thereof to
which the order was directed, or make such other
order as it deems just. (Sec. 4, Rule 12)
Section 5: Stay of period to
file responsive pleading
STAY OF PERIOD TO FILE RESPONSIVE PLEADING:
- Amotion for bill of particulars is not a pleading,
therefore, not a responsive pleading. Whether or not
his motion is granted, the movant may file his
responsive pleading. When he files a motion for bill
of particulars, the period to file the responsive
pleading is stayed or interrupted. (Riano (2014), Civil
Procedure Vol. 1, p. 472)
- After service of the bill of particulars or of a more
definite pleading, or after notice of denial of his or her
motion, the moving party may file his or her
responsive pleading within the period to which he or
she was entitled at the time of filing his or her
motion, which shall not be less than five (5) calendar
days in any event. (Sec. 5, Rule 12, AM No. 19-10-
20-SC)
Section 6: Bill a part of pleading
BILL A PART OF PLEADING:
- A bill of particulars becomes part of the pleading for
which it is intended. (Sec. 6, Rule 12)
RULE 13
FILING AND SERVICE OF PLEADINGS, JUDGMENTS
AND OTHER PAPERS
Section 1: Coverage
COVERAGE OF RULE 13:
- This Rule shall govern the filing of all (1) pleadings, (2)
motions, and (3) other court submissions, as well as
(4) their service, except those for which a different
mode of service is prescribed. (Sec. 1, Rule 13, AM
No. 19-10-20-SC)
CIVIL PROCEDURE 43
 CIVIL PROCEDURE
Morillo Notes
Section 2: Filing and service, defined
DEFINITION OF FILING:
- It is the act of submitting the pleading or other paper
to the court. (Sec. 2, Rule 13, AM No. 19-10-20-SC)
DEFINITION OF SERVICE:
- It is the act of providing a party with a copy of the
pleading or any other court submission. (Sec. 2, Rule
13, AM No. 19-10-20-SC)
TO WHOM SERVICE SHALL BE MADE?
- To the party himself or herself if he/she has not
appeared by a counsel.
- If a party has appeared by counsel, service upon
such party shall be made upon his or her counsel,
unless service upon the party and the party’s
counsel is ordered by the court. (Sec. 2, Rule 13, AM
No. 19-10-20-SC)
- The rule is that when a party is represented by
counsel in an action in court, notices of all kinds,
including motions, pleadings, and orders must be
served on said counsel and notice to him is notice to
the client. (People vs. Gabriel, 510 SCRA 197)
- Service upon the parties’ counsels of record is
tantamount to service upon the parties themselves,
but service upon the parties themselves is not
considered service upon their lawyers because,
generally, parties have no formal knowledge of the
rules of procedure, thus, they may also be unaware
of the rights and duties of a litigant relative to the
receipt of a decision. (Delos Santos vs. Elizalde, 514
SCRA 14)
SERVICE UPON COUNSEL REPRESENTING SEVERAL
PARTIES:
- Where one counsel appears for several parties, such
counsel shall only be entitled to one copy of any
paper served by the opposite side. (Sec. 2, Rule 13,
AM No. 19-10-20-SC)
SERVICE UPON SEVERAL COUNSEL REPRESENTING
ONE PARTY:
- Where several counsels appear for one party, such
party shall be entitled to only one copy of any
pleading or paper to be served upon the lead
counsel if one is designated, or upon any one of
them if there is no designation of a lead counsel.
(Sec. 2, Rule 13, AM No. 19-10-20-SC)
Section 3: Manner of filing
MODES OF FILING OF PLEADINGS AND OTHER COURT
SUBMISSIONS:
a. Personal submission thereof to the court;
- the clerk of court shall endorse on the
pleading or paper filed, the date and hour of
filing. (Sec. 3, Rule 13)
b. Sending them by registered mail;
- the date of the mailing of motions,
pleadings, and other court submissions,
and payments or deposits, as shown by the
44 CIVIL PROCEDURE
post office stamp on the envelope or the
registry receipt, shall be considered as the
date of their filing, payment, or deposit in
court. (Sec. 3, Rule 13)
- The envelope shall be attached to the
record of the case. (Sec. 3, Rule 13)
- Therefore, the date of filing is determinable
from two sources: (a) from the post office
stamp on the envelope or (b) from the
registry receipt, either of which may suffice
to prove the timeliness of the filing of the
pleadings. If the date stamped on one is
earlier than the other, the former may be
accepted as the date of filing. This
presupposes, however, that the envelope or
registry receipt and the dates appearing
thereon are duly authenticated before the
tribunal where they are presented. (GSIS vs.
NLRC, 635 SCRA 251)
c. Sending them by accredited courier;
- same discussion above
d. Transmission thereof by electronic mail or other
electronic means as may be authorized by Court in
places where the court is electronically equipped.
- the date of electronic transmission shall be
considered as the date of filing. (Sec. 3,
Rule 13, AM No. 19-10-20-SC)
Section 4: Papers required to be filed and served
PAPERS REQUIRED TO BE FILED AND SERVED UPON
THE PARTIES AFFECTED:
a. Judgments;
b. Resolutions;
c. Orders;
d. Pleadings subsequent to the complaint;
e. Written motions;
f. Notices;
g. Appearances;
h. Demands;
i. Offers of judgment; or
j. Similar papers (Sec. 4, Rule 13)
Section 5: Modes of service
MODES OF SERVICE:
a. Personal Service (see Sec. 6, Rule 13);
b. Service by mail (see Sec. 7, Rule 13);
c. Accredited Courier;
d. Electronic Mail (see Sec. 9, Rule 13);
e. Facsimile transmission (see Sec. 9, Rule 13);
f. Other electronic means authorized by Court; or
g. Other means as provided by for in international
conventions to which the Philippines is a party;
Section 6: Personal Service
TO WHOM/WHERE A COPY OF COURT SERVICE MAY
PERSONALLY SERVED?
1. To the party; or
2. To the party’s counsel;
 CIVIL PROCEDURE
Morillo Notes
3. To the party’s authorized representative named in
the appropriate pleading or motion; or
4. By living it in his or her office with his or her clerk, or
with a person having charge thereof. (Sec. 6, Rule
13, AM No. 19-10-20-SC)
- In the case of DBP vs. COA (498 SCRA 537), the
resident corporate auditor of DBP is neither an
official nor an employee of the DBP. He does not
come within the definition of “clerk or person having
charge” of the office that may be validly served with
a copy of the resolution of the respondent as
contemplated by the ROC. In fact, the resident
corporate auditor is an extension of the respondent
COA and no department of the petitioner was
actually served with a copy of the resolution.
- In the case of Marinduque Mining (MMIC) vs. CA
(567 SCRA 483), the SC ruled that NAPOCOR
complied with the Rules. NAPOCOR’s notice of
appeal sufficiently explained why the notice of
appeal was served and filed by registered mail - due
to lack of manpower to effect personal service. This
explanation is acceptable for it to satisfactorily
shows why personal service was not practicable.
TO WHOM/WHERE A COPY OF COURT SERVICE MAY
PERSONALLY SERVICE IF PARTY NOT IN HIS OR HER
OFFICE; IF OFFICE IS UNKNOWN:
- If no person is found in his or her office, or his or her
office is not known, or he or she has no office → a
copy may be left at the party’s or counsel’s
residence, if known, with a person of sufficient age
and discretion residing therein between the hours of
eight in the morning and six in the evening. (Sec. 6,
Rule 13, AM No. 19-10-20-SC)
Section 7: Service by mail
SERVICE BY MAIL:
- Service by registered mail shall be made by
depositing, in a sealed envelope, plainly addressed
to the party or to the party’s counsel at his or her
office, if known, otherwise at his or her residence, if
known, with postage fully pre-paid, and with
instructions to the postmaster to return the mail to
the sender after 10 calendar days if undelivered. If no
registry service is available in the locality of either the
sender or the addressee, service may be done by
ordinary mail. (Sec. 7, Rule 13, AM No. 19-10-20-SC)
Section 8: Substituted Service
SUBSTITUTED SERVICE:
- This mode is available only when there is failure to
effect service personally or by mail. This failure
occurs when the office and residence of the party or
counsel are unknown. (Sec. 8, Rule 13
- Substituted service is effected 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)
WHEN SUBSTITUTED SERVICE IS COMPLETE:
- Substituted service is complete at the time of
delivery of the copy to the clerk of court. (Sec. 8,
Rule 13)
Section 9: Service by electronic
means and facsimile
[Note: This is a new section under AM No. 19-10-20-SC]
DEFINITION OF FACSIMILE:
- A facsimile or fax transmission is a process involving
the transmission and reproduction of printed and
graphic matter by scanning an original copy, one
elemental area at a time, and representing the shade
or tone of each area by a specified amount of electric
current. The current is transmitted as a signal over
regular telephone lines or via microwave relay and is
used by the receiver to reproduce an image of the
elemental area in the proper position and the correct
shade. The receiver is equipped with a stylus or other
device that produces a printed record on paper
referred to as a facsimile. (MMC Industrial Sales vs.
SSangyong Corp., GR no. 170633, October 17,
2007)
SERVICE BY ELECTRONIC MEANS AND FACSIMILE:
- Service by electronic means and facsimile shall be
made if the party concerned consents to such
modes of service. (Sec. 9, Rule 13, AM No. 19-10-
20-SC)
MANNER OF SERVICE BY ELECTRONIC MEANS:
- Service by electronic means shall be made by
sending an e-mail to the party’s or counsel’s
electronic mail address, or through other electronic
means of transmission as the parties may agree on,
or upon direction of the court. (Sec. 9, Rule 13, AM
No. 19-10-20-SC)
MANNER OF SERVICE BY FACSIMILE
- Service by facsimile shall be made by sending a
facsimile copy to the party’s or counsel’s given
facsimile number. (Sec. 9, Rule 13, AM No. 19-10-
20-SC)
Section 10: Presumptive service
[Note: This is a new section under AM No. 19-10-20-SC]
PRESUMPTIVE SERVICE:
- There shall be presumptive notice to a party of a
court setting if such notice appears on the records to
have been mailed at least twenty (20) calendar days
prior to the scheduled date of hearing and if the
addressee is from within the same judicial region of
the court where the case is pending, or at least thirty
(30) calendar days if the addressee is from outside
the judicial region. (Sec. 10, Rule 13, AM No. 19-10-
20-SC)
Section 11: Change of electronic
mail address or facsimile number
[Note: This is a new section under AM No. 19-10-20-SC]
CIVIL PROCEDURE 45
 CIVIL PROCEDURE
Morillo Notes
CHANGE OF ELECTRONIC MAIL ADDRESS OR
FACSIMILE NUMBER:
- A party who changes his or her electronic mail
address or facsimile number while the action is
pending must promptly file, within five (5) calendar
days from such change, a notice of change of e-mail
address or facsimile number with the court and serve
the notice on all other parties. (Sec. 11, Rule 13, AM
No. 19-10-20-SC)
- Service through the electronic mail address or
facsimile number of a party shall be presumed valid
unless such party notifies the court of any change, as
aforementioned. (Sec. 11, Rule 13, AM No. 19-10-
20-SC)
Section 12: Electronic mail and facsimile subject and
title of pleadings and other documents
[Note: This is a new section under AM No. 19-10-20-SC]
PRESCRIBED FORMAT OF THE SUBJECT OF THE
ELECTRONIC MAIL AND FACSIMILE:
- The subject of the electronic mail and facsimile must
follow the prescribed format: case number, case title
and the pleading, order or document title. (Sec. 12,
Rule 13, AM No. 19-10-20-SC)
ORDERS, PLEADINGS AND OTHER DOCUMENTS THAT
MUST BE SERVED OR FILED PERSONALLY OR BY
REGISTERED MAIL:
a. Initiatory pleadings and initial responsive pleadings,
such as an answer;
b. Subpoenae, protection order, and writs;
c. Appendices and exhibits to motions or other
documents that are not readily amenable to
electronic scanning may, at the option of the party
filing such, be filed and served conventionally; and
d. Sealed and confidential documents or records; (Sec.
14, Rule 13, AM No. 19-10-20-SC)
- Sec. 14, Rule 13 tenor; “Notwithstanding the
foregoing, the following orders, pleadings, and other
documents must be served or filed personally or by
registered mail when allowed, and shall not be
served or filed electronically, unless express
permission is granted by the Court x x x.”
Section 15: Completeness of service
[Note: This is former Section 10 under the old rules]
MATRIX OF COMPLETENESS OF SERVICE:

TITLE OF THE PLEADING OF ELECTRONIC MAIL AND MODE OF SERVICE HOW COMPLETED?
FACSIMILE:
- The title of each electronically-filed or served Upon Actual Delivery
Personal Service
pleading or other document, and each submission
served by facsimile shall contain sufficient
Service by Ordinary Mail Upon the expiration of 10
information to enable the court to ascertain from the
calendar days after mailing,
title:
unless the court otherwise
a. the party or parties filing or serving the
provides.
paper;
b. nature of the paper;
Service by Registered Mail Upon actual receipt by the
c. the party or parties against whom relief, if
addressee, or after 5
any, is sought; and
calendar days from the date
d. the nature of the relief sought. (Sec. 12,
he or she received the first
Rule 13, AM No. 19-10-20-SC)
notice of the postmaster,
whichever date is earlier.
Section 13: Service of Judgments,
Final Orders or Resolutions Service by Accredited Upon actual receipt by the
[Note: This is former Section 9 under the old rules] Courier addressee, or after at least
two (2) attempts to deliver
by the courier service, or
SERVICE OF JUDGMENTS, FINAL ORDERS OR upon the expiration of five
RESOLUTIONS: (5) calendar days after the
- Judgments, final orders, or resolutions shall be first attempt to deliver,
served either personally or by registered mail. whichever is earlier.
- Upon ex parte motion of any party in the case, a
copy of the judgment, final order, or resolution may At the time of the electronic
Electronic Service
be delivered by accredited courier at the expense of transmission of the
such party. document, or when
- When a party summoned by publication has failed to available, at the time that
appear in the action, judgments, final orders or the electronic notification of
resolutions against him or her shall be served upon service of the document is
him or her also by means of publication at the sent.
expense of the prevailing party. (Sec. 13, Rule 13,
AM No. 19-10-20-SC)
Service by Facsimile Upon receipt by the other
Transmission party, as indicated in the
Section 14: Conventional service or filing of orders, facsimile transmission
pleadings and other documents printout.
[Note: This is a new section under AM No. 19-10-20-SC]

46 CIVIL PROCEDURE

 CIVIL PROCEDURE
Morillo Notes
WHEN ELECTRONIC SERVICE IS NOT COMPLETE:
amended under AM No. 19-10-20-SC]
- Electronic service is not effective or complete if the
party serving the document learns that it did not
reach the addressee or person to be served. (Sec.
15, Rule 13, AM No. 19-10-20-SC) HOW SERVICE IS PROVEN?

Section 16: Proof of filing MODE OF SERVICE HOW PROVEN?

[Note: This is formerly Section 15 under the old rules but
amended under AM No. 19-10-20-SC] Personal Service By a written admission of the
party served, or the official
return of the server, or the
HOW FILING IS PROVEN? affidavit of the party serving,
containing a statement of the
date, place, and manner of
MODE OF FILING HOW PROVEN? service.

Personally Filed
(Not on record)
(Sec. 16 (a), Rule 13)
By Registered Mail
(Sec. 16(b), Rule 13)
By Accredited Courier
Service
(Sec. 16(c), Rule 13)
By Electronic Mail
(Sec. 16(d), Rule 13)
By other authorized
electronic means
(Sec. 16, par. 2, Rule 13)
Section 17: Proof of service
[Note: This is former Section 13 under the old rules but
By the written or stamped
acknowledgment of its filing by
the clerk of court on a copy of
the pleading or court
submission.
By the registry receipt and by
the affidavit of the person who
mailed it, containing a full
statement of the date and
place of deposit of the mail in
the post office in a sealed
envelope addressed to the
court, with postage fully
prepaid, and with instructions
to the postmaster to return the
mail to the sender after ten
(10) calendar days if not
delivered.
By an affidavit of service of the
person who brought the
pleading or other document to
the service provider, together
with the courier’s official
receipt and document tracking
number.
By an affidavit of electronic
filing of the filing party
accompanied by a paper copy
of the pleading or other
document transmitted or a
written or stamped
acknowledgement of its filing
by the clerk of court. If the
paper the paper copy sent by
electronic mail as filed by
registered mail, par. b of this
section applies.
By an affidavit of electronic
filing of the filing party
accompanied by a copy of the
electronic acknowledgment of
its filing by the court.
Ordinary Mail By an affidavit of the person
mailing stating the facts
showing compliance with
Section 7, Rule 13.
Registered Mail By the affidavit of the person
mailing stating the facts
showing compliance with
Sec. 7, Rule 13; and the
registry receipt issued by the
mailing office.
The registry return card shall
be filed immediately upon its
receipt by the sender, or in
lieu thereof, the unclaimed
letter together with the
certified or sworn copy of the
notice given by the
postmaster to the addressee.
Accredited Courier By an affidavit of service
Service executed by the person who
brought the pleading or paper
to the service provider,
together with the courier’s
official receipt or document
tracking number.
Electronic Mail, By an affidavit of service
facsimile, or other executed by the person who
authorized electronic sent the e-mail, facsimile, or
means of transmission other electronic transmission,
together with a printed proof
of transmittal.
Section 18: Court-issued orders
and other documents
[Note: This is a new section under AM No. 19-10-20-SC]
COURT-ISSUED ORDER AND OTHER DOCUMENTS:
- The court may electronically serve orders and other
documents to all the parties in the case which shall
have the same effect and validity as provided herein.
(Sec. 18, Rule 13, AM No. 19-10-20-SC)
- A paper copy of the order or other document
electronically served shall be retained and attached

CIVIL PROCEDURE 47

 CIVIL PROCEDURE
Morillo Notes
to the record of the case. (Sec. 18, Rule 13, AM No.
19-10-20-SC)
Section 19: Notice of lis pendens
[Note: This is Section 14 under the old rules]
NOTICE OF LIS PENDENS:
- In an action affecting the title or the right of
possession of real property, the plaintiff and the
defendant, when affirmative relief is claimed in his or
her answer, may record in the office of the registry of
deeds of the province in which the property is
situated a notice of the pendency of the action.
- Said notice shall contain the names of the parties
and the object of the action or defense, and a
description of the property in that province affected
thereby.
- Only from the time of filing such notice for record
shall a purchaser, or encumbrancer of the property
affected thereby, be deemed to have constructive
notice of the pendency of the action, and only of its
pendency against the parties designated by their real
names. (Sec. 19,Rule 13, AM No. 19-10-20-SC)
CANCELLATION OF NOTICE OF LIS PENDENS:
- The notice of lis pendens hereinabove mentioned
may be cancelled only upon order of the court, after
proper showing that the notice is for the purpose of
molesting the adverse party, or that it is not
necessary to protect the rights of the party who
caused it to be recorded. (Sec. 19, Rule 13, AM No.
19-10-20-SC)
RULE 14
SUMMONS
DEFINITION OF SUMMONS:
- It is the writ by which the defendant is notified of the
action brought against him. (Republic vs. Domingo,
657 SCRA 621)
- It is a notice to the defendant that a particular person
named therein has commenced an action against
him in a particular.
EFFECT OF KNOWLEDGE OF THE FILING OF THE
ACTION:
- Knowledge by the defendant or its agents of an
action filed against him does not dispense with the
need for summons. Summons must still be issued
and served. Therefore, “Jurisdiction over the person
of the defendant cannot be acquired notwithstanding
his knowledge of the pendency of a case against
him, unless he was validly served with summons.
(Ellice Agro-Industrial Corp. vs. Young, 686 SCRA
51)
- Where the defendant had not been summoned, the
court did not acquire jurisdiction over the person.
The judgment against him is void. (Echevarria vs.
Parsons Hardware Co., 51 Phil. 980)
PURPOSE OF SUMMONS IN PERSONAL ACTIONS
(ACTIONS IN PERSONAM):
48 CIVIL PROCEDURE
- In an action in personam, the purpose of summons
is; (1) to comply with due process and also (2) to
acquire jurisdiction over the person of the defendant.
- Mere filing of the complaint and the payment of
docket fees, the Court acquires jurisdiction only over
the person of the plaintiff, and not over the person of
the defendant. (Ellice Agro-Industrial Corp. vs.
Young, Supra)
- Where the action is in personan, that is, one brought
against a person on the basis of her personal liability,
jurisdiction over the person of the defendant is
necessary for the court to validly try and decide the
case. (Velayo-Fong vs. Velayo, 510 SCRA 320)
- In actions for damages - an action in personam -
service of a writ of summons upon the defendant is
the means by which the court acquires jurisdiction
over his person and is acquired through coercive
process, generally by the service of summons issued
by the court, or through the defendant’s voluntary
appearance or submission to the court. (Republic vs.
Domingo, 657 SCRA 621)
PURPOSE OF SUMMONS IN REAL ACTIONS (ACTIONS IN
REM AND QUASI-IN REM):
- Recall that jurisdiction over the ‘Res’ is acquired by
either: (1) the seizure of the property under legal
process, whereby it is brought into actual custody of
the law; or (2) as a result of the institution of legal
proceedings, in which the power of the court is
recognized and made effective. The service of
summons or notice to the defendant is not for the
purpose of vesting the court with jurisdiction but
merely for satisfying the due process requirement.”
(Alba vs. CA, 465 SCRA 495)
- In an action ‘In Rem’ or ‘Quasi-In Rem’, jurisdiction
over the person of the defendant is not a prerequisite
to confer jurisdiction on the court provided that the
court acquires jurisdiction over the ‘Res’ or the
‘Thing’ itself. However, this does not mean that the
service of summons may be dispensed with. The
Court adds that summons must still be served upon
the defendant in order to satisfy the due process
requirements. (Asiavest Limited vs. CA, 296 SCRA
539; PCI Bank vs. Alejandro, 533 SCRA 738)
Section 1: Clerk to issue summons
ISSUANCE OF SUMMONS:
- Unless the complaint is on its face dismissible under
Section 1, Rule 9, the court shall, within five (5)
calendar days from receipt of the initiatory pleading
and proof of payment of the requisite legal fees,
direct the clerk of court to issue the corresponding
summons to the defendants. (Sec. 1, Rule 14, AM
No. 19-10-20-SC)
WHO ISSUES THE SUMMONS:
- The court shall direct the clerk of court to issue the
summons who shall sign the same under seal. (Secs.
1-2, Rule 14, AM No. 19-10-20-SC)
WHEN SUMMONS IS ISSUED:
- Within 5 calendar days from receipt of the initiatory
pleading and proof of payment of payment of the
 CIVIL PROCEDURE
Morillo Notes
requisite legal fees. (Sec. 1, Rule 14, AM No. 19-10-
20-SC)
TO WHOM SUMMONS IS DIRECTED:
- The summons is a writ that is directed to the
defendant, not the plaintiff. (Sec. 2, Rule 14)
Section 2: Contents
CONTENTS OF THE SUMMONS:
a. The name of the court and the names of the parties
to the action;
b. When authorized by the court upon ex parte motion,
an authorization for the plaintiff to serve summons to
the defendant;
c. A direction that the defendant answer within the time
fixed by these Rules; and
d. A notice that unless the defendant so answers,
plaintiff will take judgment by default and may be
granted the relief applied for. (Sec. 2, Rule 14, AM
No. 19-10-20-SC)
ATTACHMENTS:
- A copy of the complaint and order for appointment of
guardian ad litem, if any, shall be attached to the
original and each copy of the summons. (Sec. 2, Rule
14)
Section 3: By whom serves
WHO SERVES THE SUMMONS:
- General Rule: The summons may be served by the
sheriff, his or her deputy, or other court officer. (Sec.
3, Rule 14, AM No. 19-10-20-SC)
- Exception: In case of failure of service of summons
by them, the court may authorize the plaintiff - to
serve the summons - together with the sheriff. (Sec.
3, Rule 14, AM No. 19-10-20-SC)
IF CASES WHERE SUMMONS IS TO BE SERVED OUTSIDE
THE JUDICIAL REGION OF THE COURT WHERE THE
CASE IS PENDING:
- The plaintiff shall be authorized to cause the service
of summons. (Sec. 3, Rule 14, AM No. 19-10-20-SC)
IF THE PLAINTIFF IS A JURIDICAL ENTITY:
- It shall notify the court, in writing, and name its
authorized representative therein, attaching a board
resolution or secretary’s certificate thereto, as the
case may be, stating that such representative is duly
authorized to serve the summons on behalf of the
plaintiff. (Sec. 3, Rule 14, AM No. 19-10-20-SC)
IF THE PARTY MISREPRESENTS THAT THE
DEFENDANTS WAS SERVED SUMMONS; LATER PROVED
THAT NO SUMMONS WAS SERVED:
- The case shall be dismissed with prejudice, the
proceedings shall be nullified, and the plaintiff shall
be meted appropriate sanctions. (Sec. 3, Rule 14,
AM No. 19-10-20-SC)
IF SUMMONS IS RETURNED WITHOUT BEING SERVED
ON ANY DEFENDANTS:
- The court shall order the plaintiff to cause the service
of summons by other means available under the
Rules. (Sec. 3, Rule 14, AM No. 19-10-20-SC)
EFFECT OF FAILURE TO COMPLY WITH THE ORDER OF
SUMMONS:
- It shall cause the dismissal of the initiatory pleading
without prejudice. (Sec. 3, Rule 14, AM No. 19-10-
20-SC)
Section 4: Validity of summons and
issuance of alias summons
[Note: This is amended by AM No. 19-10-20-SC]
VALIDITY OF SUMMONS:
- Summons shall remain valid until duly served, unless
it is recalled by the Court. (Sec. 4, Rule 14, AM No.
19-10-20-SC)
ISSUANCES OF ALIAS SUMMONS:
- In case of loss, or destruction of summons, the court
may, upon motion, issue an alias summons. (Sec. 4,
Rule 14, AM No. 19-10-20-SC)
FAILURE OF SERVICE OF SUMMONS:
- There is failure of service of summons after
unsuccessful attempts to personally serve the
summons on the defendant in his or her address
indicated in the complaint. (Sec. 4, Rule 14, AM No.
19-10-20-SC)
SERVICE OF SUMMONS WITHOUT COPY OF THE
COMPLAINT:
- A defendant is still bound to comply with the
summons even if service was made without
attaching a copy of the complaint.
PAGALARAN vs. BAL-LATAN
13 Phil. 135
FACTS: Defendant Bidayanes was personally served with
summons. She was notified of the order to appear before
the court and file her answer and was given a duplicate
copy of the order, the receipt of which she acknowledged.
The summons, however, was not accompanied by a copy
of the complaint. The defendant did not appear and file her
answer as ordered. The trial court then issued an order
declaring her in default. The principal issue raised in the SC
was whether the proceedings in the trial court should be
annulled on the ground that the defendant had never been
summoned pursuant to the ROC because she was not
served with a copy of the complaint.
RULING: The SC admitted that the service of the summons
was defective but it treated the defect as having been
waived by the defendant’s failure to seasonably challenge
the trial court’s jurisdiction over her person.
Section 5: Service in person on defendant
[Note: This is Section 6 under the old rules]
MANNER OF SERVING THE SUMMON TO THE
DEFENDANT IN PERSON:
CIVIL PROCEDURE 49
 CIVIL PROCEDURE
Morillo Notes
- Whenever practicable, the summons shall be served;
- by handing a copy thereof to the defendant
in person and informing the defendant that
he or she is being served, or
- if he or she refuses to receive and sign for it,
by leaving the summons within the view and
in the presence of the defendant. (Sec. 5,
Rule 14, AM No. 19-10-20-SC)
Section 6: Substituted Service
[Note: This is Section 7 under the old rules]
MANNER OF SUBSTITUTED SERVICE: If, for justifiable
reasons, the defendant cannot be served personally after at
least 3 attempts on 2 different dates, service may be effect:
a. By leaving copies of the summons at the defendant's
residence to a person at least eighteen (18) years of
age and of sufficient discretion residing therein;
b. By leaving copies of the summons at the defendant's
office or regular place of business with some
competent person in charge thereof;
c. By leaving copies of the summons, if refused entry
upon making his or her authority and purpose
known, with any of the officers of the homeowners’
association or condominium corporation, or its chief
security officer in charge of the community or the
building where the defendant may be found; and
d. By sending an electronic mail to the defendant’s
electronic mail address, if allowed by the court. (Sec.
6, Rule 14, AM No. 19-10-20-SC)
SUITABLE AGE AND DISCRETION:
- A person of suitable and discretion is one who has
attained the age of full legal capacity (18 years old)
and is considered to have enough discernment to
understand the importance of summons. (Manotoc
vs. CA, 499 SCRA 21)
- Discretion is defined as the ability to make decisions
which represent a responsible choice and for which
an understanding of what is lawful, right or wise may
be presupposed. (Manotoc vs. CA, Supra)
- Therefore, to be of sufficient age and discretion, such
person must know how to read and understand
English to comprehend the import of the summons,
and fully realize the need to deliver the summons and
complaint to the defendant at the earliest possible
time for the person to take appropriate action.
(Manotoc vs. CA, Supra)
COMPETENT PERSON:
- A competent person includes, but is not limited to,
one who customarily receives correspondence for
the defendant. (Sec. 6(b), Rule 14, AM No. 19-10-20-
SC)
- A competent person in charge of the office or regular
place of business must be one managing the office
or business of defendant, such as the president or
manager; and such individual must have sufficient
knowledge to understand the obligation of the
defendant in the summons, its importance, and the
prejudicial effects arising from the inaction on the
summons. Again, the details must be contained in
the Return. (Manotoc vs. CA, 499 SCRA 21)
- It is not necessary that the person in charge of the
defendant’s regular place of business be specifically
50 CIVIL PROCEDURE
authorized to receive the summons. It is enough that
he appears to be in charge. (Gochanco vs. CFI of
Negros Occidental, 157 SCRA 40)
EFFECT IF DEFENDANT DOES NOT ACTUALLY RECEIVE
THE SUMMONS:
- Where the substituted service has been validly
served, its validity is not affected by the defendant’s
failure to actually receive the summons from the
person with whom the summons had been left. It is
immaterial that the defendant does not in fact receive
actual notice. The rule does not require the sheriff or
any authorized server to verify that the summons left
in the defendant’s residence or office was actually
delivered to the defendant. (Montalban vs. Maximo,
22 SCRA 1070)
WHEN DEFENDANT PREVENTS SERVICE OF SUMMONS:
ROBINSON vs. MIRALLES
510 SCRA 678
FACTS: Summons was served on the defendant at her given
address, but per return of service of the sheriff, it was learned that
the defendant no longer resided at such address. Later, the trial
court issued an alias summons to be served at the defendant’s
new address. Again, the summons could not be served on the
defendant. The Sheriff explained that he was refused to enter the
subdivision (to effect the service of summons to the defendant) by
the Security Guard because the defendant instructed the latter to
not let anybody proceed to her house if she is not around. That
despite all explanation, the security guard still refused to let the
sheriff go inside the subdivision and serve the summons. Therefore
the summons was served by leaving a copy thereof. Thereafter, the
plaintiff filed a motion to declared the defendant in default, which
the trial court granted. On the other hand, Defendant filed a petition
for relief of judgment by default claiming that summons was
improperly served upon her, therefore, the trial court never
acquired jurisdiction over her and that all its proceedings are void.
The trial denied her petition for relief. Defendant raised this matter
before the SC.
RULING: The SC declared that the statutory requirements of
substituted service must be followed strictly, faithfully, and fully
and any substituted service other than that authorized by the Rules
is considered ineffective. However, the SC frown an overly strict
application of the Rules. It is the spirit, rather than the letter of the
procedural rules, that governs. In his Return, the sheriff declared
that he was refused entry by the security guard in the subdivision/
The latter informed him that petitioner prohibits him from allowing
anybody to proceed to her residence whenever she is out.
Obviously, it was impossible for the sheriff to effect personal or
substituted service of summons upon the petitioner. The SC note
that she failed to controvert the sheriff’s declaration. Nor did she
deny having received the summons through the security guard.
Considering her strict instruction to the security guard, she must
bear its consequences. Thus, we agree with the trial court that
summons has been properly served upon petitioner and that it has
acquired jurisdiction over her.”
Section 7: Service upon entity
without juridical personality
[Note: This is Section 8 under the old rules]
SERVICE OF SUMMONS UPON ENTITY WITHOUT
JURIDICAL PERSONALITY:
- When 2 or more persons not organized as an entity
with juridical personality enters into a transaction,
they may be sued under the name by which they are
generally or commonly known. (Sec.15, Rule 3)
 CIVIL PROCEDURE
Morillo Notes
Thus, if A, B, and C enter into a transaction under the
name of ABC Corporation (an entity which has
actually no juridical personality), A, B, and C may be
sued under the name of ABC Corporation.
- How, then, may summons be served upon the non-
existent corporation or upon those who compose the
“corporation”?
Answer: When persons associated in an entity
without juridical personality are sued under the name
by which they are generally or commonly known,
service may be effected upon all the defendants by
serving upon any one of them, or upon the person in
charge of the office or place of business maintained
in such name. But such service shall not bind
individually any person whose connection with the
entity has, upon due notice, been severed before the
action was filed. (Sec. 7, Rule 14, AM No. 19-10-20-
SC)
Section 8: Service upon prisoner
[Note: This is Section 9 under the old rules]
SERVICE OF SUMMONS UPON PRISONER:
- When the defendant is a prisoner confined in a jail or
institution, service shall be effected upon him or her
by the officer having the management of such jail or
institution who is deemed as a special sheriff for said
purpose. The jail warden shall file a return within five
(5) calendar days from service of summons to the
defendant. (Sec. 8, Rule 14, AM No. 19-10-20-SC)
Section 9: Service consistent
with international conventions
[Note: This is a new section under AM No. 19-10-20-SC]
SERVICE CONSISTENT WITH INTERNATIONAL
CONVENTIONS:
- Service may be made through methods which are
consistent with established international conventions
to which the Philippines is a party. (Sec. 9, Rule 14,
AM No. 19-10-20-SC)
Section 10: Service upon minors
and incompetents
SERVICE OF SUMMONS UPON MINORS AND
INCOMPETENTS:
- When the defendant is a minor, insane or otherwise
an incompetent person, service of summons shall be
made upon him or her personally and on his or her
legal guardian if he or she has one, or if none, upon
his or her guardian ad litem whose appointment
shall be applied for by the plaintiff. In the case
of a minor, service shall be made on his or her
parent or guardian. (Sec. 10, Rule 14, AM No.
19-10-20-SC)
Section 11: Service upon spouses
[Note: This is a new section under AM no. 19-10-20-SC]
SERVICE OF SUMMONS UPON SPOUSES:
- When spouses are sued jointly, service of summons
should be made to each spouse individually. (Sec.
11, Rule 14, AM No. 19-10-20-SC)
Section 12: Service upon domestic
private juridical entity
[Note: This is Section 11 under the old rules]
SERVICE OF SUMMONS UPON DOMESTIC PRIVATE
JURIDICAL ENTITY:
- When the defendant is a corporation, partnership or
association organized under the laws of the
Philippines with a juridical personality, service may
be made upon the following persons:
a. President;
b. Managing Partner;
c. General Manager;
d. Corporate Secretary;
e. Treasurer;
f. In-House Counsel of the corporation
whenever they may be found; or
g. In-House Counsel’s secretaries, in the
absence or unavailability of the In-House
Counsel. (Sec. 12, Rule 14, AM No. 19-10-
20-SC)
IF SERVICE OF SUMMONS CANNOT BE MADE UPON THE
ABOVE-MENTIONED PERSONS:
- It shall be made upon the person who customarily
receives the correspondence for the defendant at its
principal office. (Sec. 12, Rule 14, AM No. 19-10-20-
SC)
IF THE DOMESTIC JURIDICAL ENTITY IS UNDER
RECEIVERSHIP OR LIQUIDATION:
- The service of summons shall be made on the
receiver or liquidator, as the case may be. (Sec. 12,
Rule 14, AM No. 19-10-20-SC)
IF THE ABOVE-MENTIONED PERSONS REFUSED TO
RECEIVE THE SUMMONS:
- Should there be a refusal on the part of the persons
above-mentioned to receive summons despite at
least three (3) attempts on two (2) different dates,
service may be made electronically, if allowed by the
court, as provided under Section 6 of this Rule. (Sec.
12, Rule 14, AM No. 19-10-20-SC)
Section 13: Duty of counsel of record
[Note: This is a new section under AM No. 19-10-20-SC]
DUTY OF COUNSEL OF RECORD:
- Where the summons is improperly served and a
lawyer makes a special appearance on behalf of the
defendant to, among others, question the validity of
service of summons, the counsel shall be deputized
by the court to serve summons on his or her client.
(Sec. 13, Rule 14, AM No. 19-10-20-SC)
Section 14: Service upon foreign
private juridical entities
[Note: This is Section 12 under the old rules]
CIVIL PROCEDURE 51
 CIVIL PROCEDURE
Morillo Notes
SERVICE OF SUMMONS UPON FOREIGN PRIVATE
JURIDICAL ENTITY:
- When the defendant is a foreign private juridical
entity which has transacted or is doing business in
the Philippines, as defined by law, service may be
made on its resident agent designated in accordance
with law for that purpose, or, if there be no such
agent, on the government official designated by law
to that effect, or on any of its officers, agents,
directors or trustees within the Philippines. (Sec. 14,
Rule 14, AM No. 19-10-20-SC)
- When a foreign corporation has designated a person
to receive summons on its behalf pursuant to the
Corporation Code, that designation is exclusive and
service of summons on any other person is
inefficacious. (H.B. Zachry Company vs. CA, 232
SCRA 329)
IF THE FOREIGN PRIVATE JURIDICAL ENTITY IS NOT
REGISTERED IN THE PHILIPPINES OR AGENT:
If the the foreign private juridical entity is not registered in the
Philippines, or has no resident agent but has transacted or is
doing business in it, as defined by law, such service may, with
leave of court, be effected outside of the Philippines through
any of the following means:
a. By personal service coursed through the appropriate
court in the foreign country with the assistance of the
department of foreign affairs;
b. By publication once in a newspaper of general
circulation in the country where the defendant may
be found and by serving a copy of the summons and
the court order by registered mail at the last known
address of the defendant;
c. By facsimile;
d. By electronic means with the prescribed proof of
service; or
e. By such other means as the court, in its discretion,
may direct. (Sec. 15, Rule 14, AM No. 19-10-20-SC;
AM No. 11-3-6-SC, March 15, 2011)
Section 15: Service upon public corporations
[Note: This is Section 13 under the old rules]
SERVICE OF SUMMONS UPON THE REPUBLIC OF THE
PHILIPPINES:
- When the defendant is the Republic of the
Philippines → Service of summons may be effect on
the Solicitor General. (Sec. 15, Rule 14, AM No. 19-
10-20-SC)
SERVICE OF SUMMONS UPON PUBLIC CORPORATIONS:
- When the defendant is a province, city or
municipality or like public corporation → Service of
summons may be effected on its executive head, or
on such other officer/s as the law or the court may
direct/ (Sec. 15, Rule 14, AM No. 19-10-20-SC)
SERVICE OF SUMMONS UPON AN UNINCORPORATED
GOVERNMENT AGENCY:
- It should be noted that because it is unincorporated,
it possesses no juridical personality of its own → the
suit is against the agency’s principal, i.e. the State.
(Republic vs. Domingo, 657 SCRA 621)
52 CIVIL PROCEDURE
- Where the complaint for specific performance with
damages was filed against DPWH Region III, which is
a mere agent of the Republic, the summons in this
case should have been served on the Office of the
Solicitor General. (Republic vs. Domingo, 657 SCRA
621)
Section 16: Service upon defendant whose identity or
whereabouts are unknown
[Note: This is Section 14 under the old rules]
SERVICE UPON DEFENDANT WHO IDENTIFY OR
WHEREABOUTS ARE UNKNOWN (SUMMONS BY
PUBLICATION):
- In any action where the defendant is designated as
an unknown owner, or the like, or whenever his or
her whereabouts are unknown and cannot be
ascertained by diligent inquiry, within ninety (90)
calendar days from the commencement of the
action, service may, by leave of court, be effected
upon him or her by publication in a newspaper of
general circulation and in such places and for such
time as the court may order.
Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty
(60) calendar days after notice, within which the
defendant must answer. (Sec. 16, Rule 14, AM No.
19-10-20-SC)
RULE ON SUMMONS BY PUBLICATION:
- General Rule: Summons by publication is available
only in actions in rem or quasi-in rem. It is not
available as a means of acquiring jurisdiction over
the person of the defendant in an action in
personam. (Jose vs. Boyon, 414 SCRA 216)
- Exception: Summons against a resident in an action
in personam is permissible under the conditions set
forth in the following rules:
- Sec. 14, Rule 14 (now Sec. 16, Rule 14) -
where the identity or whereabouts of the
defendant are unknown;
- Sec. 16, Rule 14 (now Sec. 18, Rule 14) -
When the defendant is a resident
temporarily out of the Philippines.
- Public is notice to the whole world that the
proceeding has, forits object, to bar indefinitely all
who might be minded to make an objection of any
sort against the right sought to be established. It is
the publication of such notice that brings in the
whole world as a party in the case and vests the
court with jurisdiction to hear and decide it. (Cynthia
Alaban vs. CA, 470 SCRA 697).
- Publication is not a mode of service in an action in
personam against a resident defendant except under
Secs. 14 (now 16) and 16 (now 18) of Rule 14.
Section 17: Extraterritorial Service
[Note: This is Section 15 under the old rules]
REQUISITES FOR THE APPLICATION OF SECTION 17,
RULE 17:
a. Defendant is a non-resident:
b. He or she is not found in the Philippines; and
 CIVIL PROCEDURE
Morillo Notes
c. The action against him is either in rem or quasi-in
rem. (Jose vs. Boyon, 414 SCRA 216)
NOTE:
● A possible exception to this rule would be under Sec. 18,
Rule 14 → Residents temporarily out of the Philippines
(Where service may, by leave of court,
ACTIONS INVOLVED IN EXTRATERRITORIAL SERVICE OF
SUMMONS:
a. Actions affects the personal status of the plaintiff; or
b. Actions which relates to, or the subject of which is,
property within the Philippines, in which the
defendant has or claims a lien or interest, actual or
contingent; or
c. Actions in which the relief demanded consists,
wholly or in part, in excluding the defendant from any
interest in property located in the Philippines; or
d. When the defendant’s the property of the defendant
has been attached within the Philippines. (Sec. 17,
Rule 14, AM No. 19-10-20-SC)
NOTE:
● From the foregoing, extraterritorial service of summons
applies only where the action is in rem or quasi-in rem, and
not in personam action.
● The rationale for this is that in In Rem and Quasi-In Rem
actions, jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court provided that
the court acquire jurisdiction over the Res.
● When the defendant is a non-resident, personal service of
summons within the state is essential to the acquisition of
jurisdiction over the person. Summons on the defendant
must be served by handing a copy thereof to the defendant
in person. This cannot be done if the defendant is not
physically present in the country, and thus, the court cannot
acquire jurisdiction over his person and, therefore, cannot
validly try and decide the case against them. (Velayo-Fong
vs. Velayo, 510 SCRA 320)
● HOWEVER, IT SHOULD BE NOTED: That under AM No. 19-
10-20-SC, summons can be also served by electronic mail
to the defendant’s electronic address, if allowed by court.
(Sec. 6, Rule 14, AM No. 19-10-20-SC)
MODES OF EXTRATERRITORIAL SERVICE: Service of
summon to by extraterritorial service must be by leave of
court and any of the following:
a. By personal service as provided under Section 6 of
Rule 14; or
b. As provided for in international conventions to which
the Philippines is a party; or
c. By publication in a newspaper of general circulation
in such places and for such time as the court may
order, in which case a copy of the summons and
order of the court shall be sent by registered mail to
the last known address of the defendant, or
d. In any other manner the court may deem sufficient.
(Sec. 17, Rule 14, AM No. 19-10-20-SC)
PERIOD OF ANY ORDER GRANTING SUCH LEAVE OF
COURT:
- Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty
(60) calendar days after notice, within which the
defendant must answer. (Sec. 17, Rule 14, AM No.
19-10-20-SC)
Section 18: Residents temporarily
out of the Philippines
[Note: This is Section 16 under the old rules]
RESIDENTS TEMPORARILY OUT OF THE PHILIPPINES:
- When any action is commenced against a defendant
who ordinarily resides within the Philippines, but who
is temporarily out of it, service may, by leave of
court, be also effected out of the Philippines, as
under Sec. 17, Rule 14.. (Sec. 18, Rule 14, AM No.
19-10-20-SC)
Section 19: Leave of court
[Note: This is Section 17 under the old rules]
LEAVE OF COURT:
- Any application to the court under this Rule for leave
to effect service in any manner for which leave of
court is necessary shall be made by motion in
writing, supported by affidavit of the plaintiff or some
person on his behalf, setting forth the grounds for the
application. (Sec. 19, Rule 14, AM No. 19-10-20-SC)
Section 20: Return
[Note: This is Section 4 under the old rules]
RETURN:
- Within thirty (30) calendar days from issuance of
summons by the clerk of court and receipt thereof,
the sheriff or process server, or person authorized by
the court, shall complete its service. Within five (5)
calendar days from service of summons, the server
shall file with the court and serve a copy of the return
to the plaintiff’s counsel, personally, by registered
mail, or by electronic means authorized by the Rules.
(Sec. 20, Rule 14, AM No. 19-10-20-SC)
- Should substituted service have been effected, the
return shall state the following:
a. The impossibility of prompt personal service
within a period of thirty (30) calendar days
from issue and receipt of summons;
b. The date and time of the three (3) attempts
on at least (2) two different dates to cause
personal service and the details of the
inquiries made to locate the defendant
residing thereat; and
c. The name of the person at least eighteen
(18) years of age and of sufficient discretion
residing thereat, name of competent person
in charge of the defendant’s office or regular
place of business, or name of the officer of
the homeowners’ association or
condominium corporation or its chief
security officer in charge of the community
or building where the defendant may be
found. (Sec.20, Rule 14, AM No. 19-10-20-
SC)
Section 21: Proof of service
[Note: This is Section 18 under the old rules]
PROOF OF SERVICE:
CIVIL PROCEDURE 53
 CIVIL PROCEDURE
Morillo Notes
- The proof of service of a summons shall be made in
writing by the server and shall set forth the manner,
place, and date of service; shall specify any papers
which have been served with the process and the
name of the person who received the same; and
shall be sworn to when made by a person other than
a sheriff or his or her deputy.
If summons was served by electronic mail, a printout
of said e-mail, with a copy of the summons as
served, and the affidavit of the person mailing, shall
constitute as proof of service. (Sec. 21, Rule 14, AM
No. 19-10-20-SC)
Section 22: Proof of service by publications
[Note: This is Section 19 under the old rules]
PROOF OF SERVICE BY PUBLICATIONS:
- If the service has been made by publication, service
may be proved by the affidavit of the publisher,
editor, business or advertising manager, to which
affidavit a copy of the publication shall be attached
and by an affidavit showing the deposit of a copy of
the summons and order for publication in the post
office, postage prepaid, directed to the defendant by
registered mail to his or her last known address.
(Sec. 22, Rule 14, AM No. 19-10-20-SC)
Section 23: Voluntary Appearance
[Note: This is Section 20 under the old rules]
VOLUNTARY APPEARANCE:
- The defendant's voluntary appearance in the action
shall be equivalent to service of summons.
- The inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the
defendant shall be deemed a voluntary appearance.
(Sec. 23, Rule 14, AM No. 19-10-20-SC)
RULE 15
MOTIONS
Section 1: Motion defined
DEFINITION OF A MOTION:
- A motion is an application for relief other than by a
pleading. (Sec. 1, Rule 15)
Section 2: Motions must be in writing
FORMS OF MOTIONS:
- A motion must be in writing except those (a) made in
open court; and (b) in the course of hearing or trial.
(Sec. 2, Rule 15)
- The rules that apply to pleadings shall also apply to
written motions with respect to caption, designation,
signature, and other matters of form. (Sec. 11, Rule
15, AM No. 19-10-20-SC)
54 CIVIL PROCEDURE
WHEN MOTION IS MADE IN OPEN COURT OR IN THE
COURSE OF HEARING OR TRIAL:
- The motion should immediately be resolved in open
court, after the adverse party is given the opportunity
to argue his or her opposition thereto. (Sec. 2, Rule
15, AM No. 19-10-20-SC)
WHEN A MOTION IS BASED ON FACTS NOT APPEARING
ON RECORD:
- The court may hear the matter on affidavits or
depositions presented by the respective parties, but
the court may direct that the matter be heard wholly
or partly on oral testimony or depositions. (Sec. 2,
Rule 15, AM No. 19-10-20-SC)
Section 3: Contents
CONTENTS OF A MOTION:
a. Statement of the relief sought to obtained;
b. The grounds upon which the motion is based; and
c. The supporting affidavits and other papers (applies
only when so mandated by the ROC or when
necessary to prove facts stated in the motion). [Sec.
3, Rule 15]
Section 4: Non-litigious motions
[Note: This amended Section 4 under the old rules]
NATURE OF NON-LITIGIOUS MOTIONS:
- Motions which the court may act upon without
prejudicing the rights of the adverse parties are non-
litigious motions. (Sec. 4, Rule 15, AM no. 19-10-20-
SC)
KINDS OF NON-LITIGIOUS MOTIONS:
a. Motion for the issuance of an alias summons;
b. Motion for extension to file answer;
c. Motion for postponement;
d. Motion for the issuance of a writ of execution;
e. Motion for the issuance of an alias writ of execution;
f. Motion for the Issuance of a Writ of Possession;
g. Motion for the issuance of an order directing the
sheriff to execute the final certificate of sale; and
h. Other similar motions. (Sec. 4, Rule 15, AM No. 19-
10-20-SC)
PERIOD OF RESOLVING NON-LITIGIOUS MOTIONS:
- These motions shall not be set for hearing and shall
be resolved by the court within 5 calendar days from
receipt thereof. (Sec. 4, Rule 15, AM No. 19-10-20-
SC)
Section 5: Litigious motions
[Note: This is a new section under AM No. 19-10-20-SC]
NATURE OF A LITIGIOUS MOTIONS:
- Motions which the court MAY NOT ACT upon
without prejudicing the rights of the adverse parties
are non-litigious motions.
- All motions shall be served by personal service,
accredited private courier or registered mail, or
electronic means so as to ensure their receipt by the
 CIVIL PROCEDURE
Morillo Notes
other party. (Sec. 5(b), Rule 15, AM No. 19-10-20-
SC)
KINDS OF LITIGIOUS MOTIONS:
1. Motion for bill of particulars;
2. Motion to dismiss;
3. Motion for new trial;
4. Motion for reconsideration;
5. Motion for execution pending appeal;
6. Motion to amend after a responsive pleading has
been filed;
7. Motion to cancel statutory lien;
8. Motion for an order to break in or for a writ of
demolition;
9. Motion for intervention;
10. Motion for judgment on the pleadings;
11. Motion for summary judgment;
12. Demurrer to evidence;
13. Motion to declare defendant in default; and
14. Other similar motions. (Sec. 5, Rule 15, AM No. 19-
10-20-SC)
WHEN THE OPPOSING PARTY SHALL THE OPPOSITION
TO THE LITIGIOUS MOTION:
- The opposing party shall file his or her opposition to
a litigious motion within five (5) calendar days from
receipt thereof. No other submissions shall be
considered by the court in the resolution of the
motion. (Sec. 5(c), Rule 15, AM No. 19-10-20-SC)
PERIOD OF RESOLVING LITIGIOUS MOTIONS:
- The motion shall be resolved by the court within
fifteen (15) calendar days from its receipt of the
opposition thereto, or upon expiration of the period
to file such opposition. (Sec. 5), Rule 15, AM No. 19-
10-20-SC)
Section 6: Notice of hearing on
litigious motion; discretionary
[Note: This amended Sec. 5 under the old rules]
NOTICE OF HEARING ON LITIGIOUS MOTIONS;
DISCRETIONARY:
- The court may, in the exercise of its discretion, and if
deemed necessary for its resolution, call a hearing on
the motion. (Sec. 6, Rule 15, AM No. 19-10-20-SC)
- The notice of hearing shall be addressed to all
parties concerned, and shall specify the time and
date of the hearing. (Sec. 6, Rule 15, AM No. 19-10-
20-SC)
- A motion without a notice of hearing is considered
‘pro forma’ and does not affect the reglementary
period for the appeal or the filing of the requisite
pleading. (Flores vs. People, 692 SCRA 127)
Section 7: Proof of service necessary
[Note: This is Section 6 under the old rules]
PROOF OF SERVICE NECESSARY:
- No written motion shall be acted upon by the court
without proof of service thereof, pursuant to Section
5(b) of Rule 15. (Sec. 7, Rule 15, AM No. 19-10-20-
SC)
- Under Sec. 5(b), Rule 15; “All motions shall be
served by personal service, accredited private
courier or registered mail, or electronic means so as
to ensure their receipt by the other party.”
Section 8: Motion day
[Note: This is Section 7 under the old rules]
MOTION DAY:
- Except for motions requiring immediate action,
where the court decides to conduct hearing on a
litigious motion, the same shall be set on a Friday.
(Sec. 8, Rule 15, AM No. 19-10-20-SC)
Section 9: Omnibus motion
[Note: This is Section 8 under the old rules]
OMNIBUS MOTION RULE:
- General Rule: A motion attacking a pleading, order,
judgment, or proceeding shall include all objections
then available, and all objections not so included
shall be deemed waived. (Sec. 9, Rule 15, AM No.
19-10-20-SC)
- Exception: Under Sec. 1, Rule 9, the following
defenses are not deemed waived even if not raised in
the motion to dismiss:
a. The court has no jurisdiction over the
subject matter;
b. There is another action pending between
the same parties for the same cause (Litis
pendentia);
c. The action is barred by a prior judgment
(Res judicata); or
d. The action is barred by the statute of
limitations (Prescription).
- The defense of lack of jurisdiction over the person of
the defendant is not one of those defenses which are
not deemed waived under Sec. 1, Rule 9. Such
defense must be invoked when a motion to dismiss
is filed to prevent a waiver of the defense. (Boston
Equity Resources vs. CA, GR no. 173946, June 19,
2013)
Section 10: Motion for leave
[Note: This is Section 9 under the old rules]
MOTION FOR LEAVE:
- A motion for leave to file a pleading or motion shall
be accompanied by the pleading or motion sought to
be admitted. (Sec. 10, Rule 15, AM No. 19-10-20-
SC)
Section 11: Form
[Note: This is Section 10 under the old rules]
FORM:
- The Rules applicable to pleadings shall apply to
written motions so far as concerns caption,
designation, signature, and other matters of form.
(Sec. 11, Rule 15, AM No. 19-10-20-SC)
Section 12: Prohibited motions
[Note this is a new section under AM No. 19-10-20-SC]
CIVIL PROCEDURE 55
 CIVIL PROCEDURE
Morillo Notes
- Subject to the right of appeal, the following shall bar
RULE ON PROHIBITED MOTIONS: the refiling of the same action or claim:
WHAT ARE PROHIBITED MOTIONS An order granting a motion to dismiss or an
(OR MOTIONS THAT ARE NOT ALLOWED)? affirmative defense
- that the cause of action is barred by a prior
KINDS: EXCEPTIONS: judgment or by the statute of limitations;
- that the claim or demand set forth in the
1. Motion to dismiss ● When the court has no
plaintiff’s pleading has been paid, waived,
jurisdiction over the
subject matter;
abandoned or otherwise extinguished; or
● There is another action - that the claim on which the action is
pending between the same founded is unenforceable under the
parties for the same cause provisions of the statute of frauds, (Sec. 13,
(Litis pendentia); Rule 15, AM No. 19-10-20-SC)
● The action is barred by a
prior judgment (Res
judicata);
RULE 16
2. Motion to hear affirmative
(None) MOTION TO DISMISS
defenses

3. Motion for reconsideration

of the court’s action on the (None)
affirmative defenses NOTE: Under AM No. 19-10-20-SC, the
provisions under Rule 16 are either deleted or
4. Motion to suspend transposed.
proceedings without a
temporary restraining (None)
order or injunction issued DOCTRINE OF RES JUDICATA:
by a higher court - The concept of Res Judicata provides that a final
judgment or decree on the merits by a court of
5. Motion for extension of ● A motion for extension to competent jurisdiction is conclusive of the rights of
time to file pleadings, file an answer as provided the parties or their privies, in all later suits and on all
affidavits or any other under Sec. 11, Rule 11 points and matters determined in the previous suits.
papers (Riano (2014), Civil Procedure Vol. 1, p. 480).
- The term literally means a “matter adjudged,
6. Motion for postponement if it is based on acts of God, judicially acted upon, or settled by judgment.”
intended for delay force majeure or physical
- The principle bars a subsequent suit involving the
inability of the witness to
appear and testify.
same parties, subject matter, and cause of action.
- The rationale for this rule is that “public policy
Source: Sec. 12, Rule 15, AM No. 19-10-20-SC) requires that controversies must be settled with
finality at a given point in time.”
ADDITIONAL NOTES; MOTION FOR POSTPONEMENT:
- A motion for postponement, whether written or oral, TWO CONCEPTS OF RES JUDICATA:
shall, at all times, be accompanied by the original
official receipt from the office of the clerk of court “BAR BY PRIOR “CONCLUSIVENESS OF
evidencing payment of the postponement fee under JUDGMENT” JUDGMENT”
Section 21(b), Rule 141, to be submitted either at the
time of the filing of said motion or not later than the Sec. 47(b), Rule 39 Sec. 47(c), Rule 39
next hearing date.
In other cases, the judgment or In any other litigation between
- The clerk of court shall not accept the motion unless
final order is, with respect to the the same parties or their
accompanied by the original receipt. (Sec. 12, Rule matter directly adjudged or as successors in interest, that only
15, AM No. 19-10-20-SC) to any other matter that could is deemed to have been
have been missed in relation adjudged in a former judgment
RULE IF THE MOTION IS GRANTED BASED ON THE thereto, conclusive between the or final order which appears
ABOVE EXCEPTIONS: parties and their successors in upon its face to have been so
- If the motion is granted based on such exceptions, interest, by title subsequent to adjudged, or which was actually
the moving party shall be warned that the the commencement of the and necessarily included therein
action or special proceeding, or necessary thereto.
presentation of its evidence must still be terminated
litigating for the same thing and
on the dates previously agreed upon. (Sec. 12, Rule under the same title and in the
15, AM No. 19-10-20-SC) same capacity;

Source: Topacio vs. Banco Filipino, 635 SCRA 50

Section 13: Dismissal with prejudice
[Note: This is Section 5, Rule 16 under the old rules]
DISMISSAL WITH PREJUDICE:
ELEMENTS OF RES JUDICATA:
1. The former judgment must be final;
2. The court which rendered it had jurisdiction over the
subject matter and the parties;

56 CIVIL PROCEDURE

 CIVIL PROCEDURE
Morillo Notes
3. The judgment must be on the merits; and
4. There must be between the first and the second
actions, identity of parties, subject matter and
causes of action. (FELS Energy, Inc. vs. Province of
Batangas, 516 SCRA 186)
IDENTITY OF PARTIES:
- The application of Res judicata does not require
absolute identity of parties but merely substantial
identity of parties.
- There is substantial identity of parties when there is
community of interest or privity of interest between a
party in the first and a party in the second case even
if the first case did not implead the latter. (FELS
Energy vs. Province of Batangas, Supra)
NO RES JUDICATA IN CRIMINAL PROCEEDINGS:
- Res Judicata is a doctrine of civil law and, therefore,
has no bearing on criminal proceedings. Even if the
argument were to be expanded to contemplate “res
judicata in prison grey.” or the criminal law concept
of double jeopardy, the reinvestigation cannot be
barred by reason of double jeopardy. The dismissal
of case during preliminary investigation does not
constitute double jeopardy, preliminary investigation
not being part of the trial. (Trinidad vs. Office of
Ombudsman, 539 SCRA 415)
LITIES PENDENTIA:
- This refers to a situation where two actions are
pending between the same parties for the same
cause of action, so that one of them becomes
unnecessary and vexatious. It is based on the policy
against multiplicity of suits and authorizes a court to
dismiss a case motu proprio. (Film Development
Council vs. SM Prime Holdings, GR no. 197937, April
3, 2013)
REQUISITES OF LITIS PENDENTIA:
a. The identity of the parties, or at least such as
representing the same interest in both actions;
b. The identity of rights asserted and relief prayed for,
the relief being founded on the same facts; and
c. The identity of the two cases such that judgment in
one, regardless of which party is successful, would
amount to res judicata in the other. (Film
Development Council vs. SM Prime Holdings, Supra)
RULE 17
DISMISSAL OF ACTIONS
Section 1: Dismissal upon notice of plaintiff
DISMISSAL BY MERE NOTICE OF DISMISSAL:
- Before the service of an answer or a motion for
summary judgment, a complaint may be dismissed
by the plaintiff by filing a notice of dismissal. (Sec. 1,
Rule 17)
- Upon the filing of the notice of dismissal, the court
shall issue an order confirming the dismissal. (Sec 1.
Rule 17)
DISMISSAL WITHOUT PREJUDICE:
- General Rule: A dismissal made by filing of a notice
of dismissal is a dismissal without prejudice. (i.e. the
complaint can be refiled)
- Exception: The dismissal will be one with prejudice
in any of the following situations:
a. The notice of dismissal by the plaintiff
provides that the dismissal is with prejudice;
or
b. the plaintiff has previously dismissed the
same case in a court of competent
jurisdiction based on or including the same
claim. (Sec. 1, Rule 17)
TWO-DISMISSAL RULE:
- Requirements:
1. The plaintiff’s action has been dismissed
twice;
2. based on or including the same claim;
3. in a court of competent jurisdiction. (Riano
(2014), Civil Procedure, Vol. 1, p. 490)
Note: The second notice of dismissal will bar the refiling
of the action because it will operate as an adjudication of
the claim upon the merits. In other words, the claim may
only be filed twice, the first being the claim embodied in
the original complaint. Since (as a rule) the dismissal is
without prejudice, the same can be refiled. However, if
the refiled claim or complaint is dismissed again through
a second notice of dismissal, that second notice triggers
the application of the two-dismissal rule and the
dismissal is to be deemed one with prejudice because it
is considered as an adjudication upon the merits.
- Illustration: PP files before the RTC Manila an action
to collect P300,000.00 from DD. The complaint was
dismissed when PP immediately filed a notice of
dismissal. The same claim was again filed in the
MeTC Manila. Before DD served either an answer or
a motion for summary judgment, PP filed a notice of
dismissal. Does the two-dismissal rule apply? → NO.
The first court (RTC) was not a court of competent
jurisdiction because the claim was below its
jurisdictional amount.
Section 2: Dismissal upon motion of plaintiff
DISMISSAL BY FILING A MOTION TO DISMISS:
- Once either an answer or a motion for summary
judgment has been served on the plaintiff, the
dismissal is no longer a matter of right and will
require the filing of a motion to dismiss, not a mere
notice of dismissal. The motion to dismiss will now
be subject to the approval of the court which will
decide on the motion upon such terms and
conditions as are just. (Sec. 2, Rule 17)
- The dismissal under Sec. 2, Rule 17, is no longer a
matter of right on the part of the plaintiff but a matter
of judicial discretion.
EFFECT OF DISMISSAL UPON A COUNTERCLAIM
ALREADY PLEADED:
- If a counterclaim has already been pleaded by the
defendant prior to the service upon him of the
plaintiff’s motion to dismiss,and the court grants the
said motion to dismiss, the dismissal “shall be limited
to the complaint’. (Sec. 2, Rule 17). The provision is
CIVIL PROCEDURE 57
 CIVIL PROCEDURE
Morillo Notes
clear that the counterclaim is not dismissed (whether
compulsory or permissive) because the rule makes
no distinction.
- The defendant, if he so desires, may prosecute his
counterclaim in a separate action, unless he
manifests his preference to have his counterclaim
resolved in the same action. He shall inform the court
of such preference within 15 calendar days from
notice of the motion to dismiss served by the
plaintiff. (Sec. 2, Rule 17)
DISMISSAL WITHOUT PREJUDICE:
- The dismissal authorized under Sec. 2, Rule 17, is a
dismissal without prejudice except if the order of
dismissal specifies that it is with prejudice. (Sec. 2,
Rule 17)
DISMISSAL OF A CLASS SUIT:
- A class suit shall not be dismissed or compromised
without the approval of the court. (Sec. 2, Rule 17)
Section 3: Dismissal due to fault of plaintiff
GROUNDS FOR DISMISSAL UNDER SEC. 3, RULE 17:
a. The failure of plaintiff, without justifiable reasons, to
appear on the date of the presentation of his
evidence in chief;
b. The failure of the plaintiff to prosecute his action for
an unreasonable length of time;
c. The failure of the plaintiff to comply with the Rules of
Court; or
d. The failure of the plaintiff to comply with any order of
the court. (Sec. 3, Rule 17)
DISMISSAL DUE TO FAULT OF PLAINTIFF:
- The dismissal due to the fault of the plaintiff may be
done by the court on its own motion (motu proprio)
or upon a motion filed by the defendant. (Sec. 3,
Rule 17; AFP Retirement Benefit System vs.
Republic, 694 SCRA 118, March 20, 2013)
- When there are not justifiable reasons that explain
the plaintiff’s absence during the presentation of his
evidence in chief, the court may dismiss the
complaint. The use of the word “may” denotes its
directory nature and operates to confer upon the
court the discretion to decide between the dismissal
of the case on this technicality. (Republic vs. Diaz-
Enriquez, 694 SCRA 102)
EFFECT OF DISMISSAL ON THE COUNTERCLAIM:
- The dismissal of the complaint, under Sec. 3, Rule 17
(ie. because of the fault of the plaintiff) is without
prejudice to the right of the defendant to prosecute
his counterclaim in the same action or separate
action. (Pinga vs. Heirs of Santiago, 494 SCRA 393)
DISMISSAL WITH PREJUDICE:
- The dismissal under Sec. 3, Rule 17, shall have the
effect of an adjudication on the merits, unless
otherwise declared by the court. Therefore, as a rule,
it is a dismissal with prejudice. (AFP Retirement
Benefits System vs. Republic, Supra)
Section 4: Dismissal of counterclaim,
58 CIVIL PROCEDURE
cross-claim, or third-party complaint
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM, OR
THIRD-PARTY COMPLAINT:
- The provisions of this Rule shall apply to the
dismissal of any counterclaim, cross- claim, or third-
party complaint.
- A voluntary dismissal by the claimant by notice as in
Section 1 of this Rule, shall be made before a
responsive pleading or a motion for summary
judgment is served or, if there is none, before the
introduction of evidence at the trial or hearing. (Sec.
4, Rule 17)
RULE 18
PRE-TRIAL
Section 1: When conducted
HOW PRE-TRIAL IS CALLED; ISSUANCE OF THE BRANCH
CLERK OF COURT:
- After the last responsive pleading has been served
and filed, the branch clerk of court shall issue, within
5 calendar days from filing, a notice of pre-trial which
shall be set not later than 60 calendar days from the
filing of the last responsive pleading. (Sec. 1, Rule
18, AM No. 19-10-20-SC)
MEANING OF “LAST PLEADING”:
- Where the last pleading has not yet been served and
filed, the case is not yet ready for pre-trial. (Pioneer
Insurance & Surety Corp. vs. Hontanosas, 78 SCRA
447)
- However, the last pleading need not be literally
construed as one having been served and filed. For
purposes of the pre-trial, the expiration of the period
for filing the last pleading, without it having been
served and filed, is sufficient. (Sarmiento vs. Juan,
GR no. L-56605, January 28, 1983)
Section 2: Nature and purpose
MANDATORY NATURE OF PRE-TRIAL:
- The pre-trial is mandatory and should be terminated
promptly. (Sec. 2, Rule 18, AM No. 19-10-20-SC)
- Pre-trial is mandatory in civil cases. (Interlining Corp.
vs. PTC, 378 SCRA 521)
- Pre-trial is also mandatory in all criminal cases
cognizable by the Sandiganbayan, RTCs, MeTCs,
MTCs, and MCTCs. (Sec. 1, Rule 118)
- A preliminary conference, similar to pre-trial, is
likewise mandatory in both criminal and civil cases
under the Rules on Summary Procedure. (Secs. 7
and 14, 1991 Rules on Summary Procedure)
DIFFERENCE BETWEEN PRE-TRIAL IN CIVIL AND
CRIMINAL CASES:
PRE-TRIAL IN PRE-TRIAL IN
CIVIL CASES CRIMINAL CASES
 CIVIL PROCEDURE
Morillo Notes
It is set when the plaintiff It is ordered by the court
moves ex parte to set the and no motion to set the
case for pre-trial. case for pre-trial is required
for either parties.
The motion to set the case Pre-trial is ordered by the
for pre-trial is made after the court after arraignment and
last responsive pleading has within 30 days from the date
been served and filed. the court acquires
jurisdiction over the person
of the accused.
It considers the possibility of It does not include
an amicable settlement as considering the possibility of
an important objective amicable settlement of
criminal liability as one of its
purposes.
Pre-trial brief is required Pre-trial brief is not required
Source: Rule 7 and Rule 118, Rules of Court
PURPOSES OF PRE-TRIAL:
a. The possibility of an amicable settlement or of a
submission to alternative modes of dispute
resolution;
b. The simplification of the issues;
c. The possibility of obtaining stipulations or
admissions of facts and of documents to avoid
unnecessary proof;
d. The limitation of the number and identification of
witnesses and the setting of trial dates;
e. The advisability of a preliminary reference of issues
to a commissioner;
f. The propriety of rendering judgment on the
pleadings, or summary judgment, or of dismissing
the action should a valid ground therefor be found to
exist;
g. The requirement for the parties to:
i. Mark their respective evidence if not yet
marked in the judicial affidavits of their
witnesses;
ii. Examine and make comparisons of the
adverse parties' evidence vis-avis the
copies to be marked;
iii. Manifest for the record stipulations
regarding the faithfulness of the
reproductions and the genuineness and due
execution of the adverse parties' evidence;
iv. Reserve evidence not available at the pre-
trial, but only in the following manner:
1. For testimonial evidence, by giving
the name or position and the
nature of the testimony of the
proposed witness;
2. For documentary evidence and
other object evidence, by giving a
particular description of the
evidence.
No reservation shall be allowed if
not made in the manner described
above.
h. Such other matters as may aid in the prompt
disposition of the action. (Sec. 2, Rule 18, AM No.
19-10-20-SC)
EFFECT OF FAILURE TO APPEAR DURING PRE-TRIAL:
- The failure without just cause of a party and counsel
to appear during pre-trial despite notice → shall result
in a waiver of any objections to the faithfulness of the
reproductions marked, or their genuineness and due
execution. (Sec. 2, Rule 18, AM No. 19-10-20-SC)
EFFECT OF FAILURE TO BRING THE EVIDENCE
REQUIRED:
- The failure without just cause of a party and counsel
to bring the evidence required shall be deemed a
waiver of the presentation of such evidence. (Sec.
2,Rule 18, AM No. 19-10-20-SC)
MINUTES AND FORMAT OF PRE-TRIAL:
- It is the branch clerk of court who shall prepare the
minutes of the pre-trial, under the provided format
under AM No. 19-10-20-SC. (Sec. 2, Rule 18, AM
No. 19-10-20-SC)
Section 3: Notice of pre-trial
NOTICE OF PRE-TRIAL:
- The notice of pre-trial shall include the dates
respectively set for the following:
a. Pre-trial:
b. Court-Annexed Mediation; and
c. Judicial Dispute Resolution, if necessary.
(Sec. 3, Rule 18, AM No. 19-10-20-SC)
- The notice of pre-trial shall be served on the counsel,
or on the party if he or she has no counsel. The
counsel served with such notice is charged with the
duty of notifying the party represented by him or her.
(Se. 3, Rule 18, AM No. 19-10-20-SC)
- Notice is important that it would be grave abuse of
discretion for the court, for example, to allow the
plaintiff to present his evidence ex parte for failure of
the defendant to appear before the pre-trial who did
not receive, through his counsel, a notice of pre-trial.
Accordingly, there is no legal basis for a court to
consider a party notified of the pre-trial and that
there is no longer a need to send notice of pre-trial
merely because it was his counsel who suggested
the date of pre-trial (Agulto vs. Tecson, 476 SCRA
395)
- Non-appearance at any of the foregoing setting shall
be deemed as non-appearance at the pre-trial and
shallmerit the same sanctions under Sec. 5 of Rule
18. (Sec. 2, Rule 18, AM No. 19-10-20-SC)
Section 4: Appearance of the parties
MANDATORY APPEARANCE (GENERAL RULE):
- It shall be the duty of the parties and their counsel to
appear at the following:
a. Pre-trial;
b. Court-annexed mediation; and
c. Judicial dispute resolution, if necessary.
(Sec. 4, Rule 18, AM No. 19-10-20-SC)
- Mediation is a part of pre-trial and failure to appear
therein merits sanction on the part of the absent
party. (Senarlo vs. Judge Paderanga, 617 SCRA 247)
CIVIL PROCEDURE 59
 CIVIL PROCEDURE
Morillo Notes
EXCEPTION TO THE MANDATORY APPEARANCE:
- The non-appearance of a party and counsel may be
excused only for acts of God, force majeure, or
duly substantiated physical inability. (Sec. 4,
Rule 18, AM No. 19-10-20-SC)
APPEARANCE BY A REPRESENTATIVE:
- A representative may appear on behalf of a
party, but must be fully authorized in writing to
enter into an amicable settlement, to submit to
alternative modes of dispute resolution, and to
enter into stipulations or admissions of facts
and documents. (Sec. 4, Rule 18, AM No. 19-
10-20-SC)
Section 5: Effect of Failure to appear
EFFECT OF FAILURE TO APPEAR BY THE PLAINTIFF:
- When duly notified, the failure of the plaintiff and
counsel to appear without valid cause when so
required, pursuant to the next preceding Section
(Section 3), shall cause the dismissal. (Sec. 5, Rule
18, AM No. 19-10-20-SC)
- The dismissal shall be with prejudice except when
the court orders otherwise. (Sec. 5, Rule 18, AM No.
19-10-20-SC)
REMEDY OF THE PLAINTIFF WHEN IT FAILED TO
APPEAR:
- Since the dismissal of the action shall be with
prejudice, unless otherwise provided, the same shall
have the effect of an adjudication on the merits,
therefore, final. The remedy of the plaintiff is to
appeal from the order of dismissal. An order
dismissing an action with prejudice is appealable.
- ROC provides that it is only when the order of
dismissal is without prejudice that appeal cannot be
availed of. (Sec. 1(g), Rule 41). Since appeal is
available, petition for a certiorari is the remedy
because the application of a petition for certiorari
(under Rule 65) is conditioned upon the absence of
an appeal or any plain, speedy and adequate remedy
in the ordinary course of law. (Sec. 1, Rule 65)
- A dismissal without prejudice is to be considered an
adjudication on the merits of the case, where the
proper remedy is appeal under Rule 41, not a petition
for certiorari. (Chingkoe vs. Republic, GR no. 183608,
July 31, 2013)
EFFECT OF FAILURE TO APPEAR BY THE DEFENDANT:
- When duly notified, the failure of the defendant and
counsel to appear without valid cause when so
required, pursuant to the next preceding Section
(Section 3), shall cause to allow the plaintiff to
present his or her evidence ex-parte within 10
calendar days from the termination of the pre-trial,
and the court to render judgment on the basis of the
evidence offered. (Sec. 5, Rule 18, AM No. 19-10-20-
SC)
REMEDY WHEN DEFENDANT FAILED TO APPEAR:
60 CIVIL PROCEDURE
- The order of the court allowing the plaintiff to present
his evidence ex parte does not dispose of the case
with finality. Therefore, the order is merely
interlocutory, hence, not appealable.
- No appeal may be taken from an interlocutory order.
(Sec. 1(b), Rule 41). The defendant who feels
aggrieved by the order may move for the
reconsideration of the order, and if the denial is
tainted with grave abuse of discretion, he may file a
petition for certiorari.
Section 6: Pre-trial brief
FILING OF PRE-TRIAL BRIEF:
- The parties shall file with the court their respective
pre-trial briefs which should be received at least 3
calendar days before the date of the pre-trial. (Sec.
6, Rule 18)
- This pre-trial brief shall be served on the adverse
party in such manner that will ensure his receipt also
at least 3 calendar days before the date of the pre-
trial. (Sec. 6, Rule 18)
CONTENTS OF PRE-TRIAL BRIEF:
a. A concise statement of the case and the reliefs
prayed for;
b. A summary of the admitted facts and proposed
stipulations of facts;
c. The main factual and legal issues to be tried or
resolved;
d. The propriety of referral of factual issues to
commissioners;
e. The documents or other object evidence to be
marked, stating the purpose thereof;
f. The names of the witnesses, and the summary of
their respective testimonies; and
g. A brief statement of points of law and citation of
authorities. (Sec. 6, Rule 18, AM No. 19-10-20-SC)
IDENTIFICATION AND MARKING OF EVIDENCE:
- No evidence shall be allowed to be presented and
offered during the trial in support of a party’s
evidence-in-chief other than those that had been
earlier identified and pre-marked during the pre-trial,
except if allowed by the court for good cause shown.
(AM No. 03-1-09-SC, July 13, 2004)
LEGAL EFFECT OF REPRESENTATIONS AND
STATEMENTS IN THE PRE-TRIAL BRIEF:
- the parties are bound by the representations and
statements in their respective pre-trials briefs. (AM
No. 03-1-09-SC).
- Such representations and statements are in the
nature of judicial admissions in relation to Sec. 4,
Rule 129.
EFFECT OF FAILURE TO FILE A PRE-TRIAL BRIEF:
- Failure to file the pre-trial brief shall have the same
effect as failure to appear at the pre-trial. (Sec. 6,
Rule 18)
- Therefore, if it is the plaintiff who fails to file a pre-
trial brief, such failure shall be cause for dismissal of
the action. On the other hand, if the defendant fails
to file a pre-trial brief, such failure shall be cause to
 CIVIL PROCEDURE
Morillo Notes
allow the plaintiff to present his or her evidence ex
parte.
- The dismissal of a complaint for failure to file a pre-
trial brief is discretionary on the part of the trial court.
(Ramos vs. Sps. Lavendia, 568 SCRA 239)
Section 7: Pre-trial order
[Note: This amended Section 7 under the old rules]
ISSUANCE OF THE PRE-TRIAL ORDER:
- Upon the termination of the pre-trial, the court shall
issue an (pre-trial) order within 10 calendar days
which shall recite in detail the matters taken up. (Sec.
7, Rule 18, AM No. 19-10-20-SC)
CONTENTS OF THE PRE-TRIAL ORDER:
a. An enumeration of the admitted facts;
b. The minutes of the pre-trial conference;
c. The legal and factual issue/s to be tried;
d. The applicable law, rules, and jurisprudence;
e. The evidence marked;
f. The specific trial dates for continuous trial, which
shall be within the period provided by the Rules;
g. The case flowchart to be determined by the court,
which shall contain the different stages of the
proceedings up to the promulgation of the decision
and the use of time frames for each stage in setting
the trial dates;
h. A statement that the one-day examination of witness
rule and most important witness rule under AM No.
03-1-09-SC (Guidelines for Pre-Trial) shall be strictly
followed; and
i. A statement that the court shall render judgment on
the pleadings or summary judgment,as the case may
be. (Sec. 7, Rule 18, AM No. 19-10-20-SC)
NOTE: The contents of the pre-trial order shall control the
subsequent proceedings, unless modified before trial to
prevent manifest injustice. (Sec. 7 (last par.), Rule 18, AM No.
19-10-20-SC)
DIRECT TESTIMONY OF WITNESSES:
- The direct testimony of witnesses for the plaintiff
shall be in the form of judicial affidavits. (Sec. 7, Rule
18, AM No. 19-10-20-SC)
- After the identification of such affidavits, cross-
examination shall proceed immediately. (Sec. 7, Rule
18, AM No. 19-10-20-SC)
ONE DAY EXAMINATION OF WITNESS RULE:
- The court shall ask the parties to agree on the
specific dates for continuous trial, adhere to the case
flow chart determined by the court, and use the time
frame for each stage in setting the trial dates.
- Adherence to the One day Examination of Witness
Rule shall be required where the witness shall be fully
examined in 1 day only, subject to the court’s
discretion during the trial on whether or not to extend
the examination for justifiable reasons. (AM No. 03-1-
09-SC)
MOST IMPORTANT WITNESS RULE:
- Where no settlement has been effected, the court
shall follow the Most Important Witness Rule.
- Most Important Witness Rule → It is where the court
shall determine the most important witness, limit the
number of such witnesses and require the parties
and/or counsels to submit to the branch clerk of
court the names, addresses and contact numbers of
the witnesses to be summoned by subpoena. (AM
No. 03-1-09-SC)
- However, the court may also refer the case to a trial
by commissioner under Rule 32.
POSTPONEMENT OF WITNESSES:
- General Rule: Postponement of the parties’
witnesses at a scheduled date is prohibited.
- Exception: it is not prohibited if the postponement is
based on the following:
a. Acts of God;
b. Force Majeure; or
c. Duly substantiated physical inability of the
witness to appear and testify. (Sec. 7, Rule
18, AM No. 19-10-20-SC)
EFFECT OF THE POSTPONEMENT OF WITNESSES:
- The party who caused the postponement is warned
that the presentation of its evidence must still be
terminated within the remaining dates previously
agreed upon. (Sec. 7, Rule 18, AM No.19-10-20-SC)
- Should the opposing party fail to appear without
valid cause, the presentation of the scheduled
witness will proceed with the absent party being
deemed to have waived the right to interpose
objection and conduct cross-examination. (Sec. 7,
Rule 18, AM No. 19-10-20-SC)
QUESTIONS ARE TO BE ASKED BY THE JUDGE:
- During the pre-trial, the judge shall be the one to ask
questions on issues raised by the parties, and all
questions or comments by counsel or parties must
be directed to the judge to avoid hostilities between
the parties. (AM No. 03-1-09-SC)
IMPLIED ISSUES ARE DEEMED INCLUDED IN THE PRE-
TRIAL ORDER:
- A pre-trial order is not intended to be a detailed
catalogue of each and every issue that is to be taken
during the trial, for it is unavoidable that there are
issues that are impliedly included among those listed
or that may be inferable from those listed by
necessary implication which are as much integral
parts of the pre-trial order as those expressly listed.
(Phil. Export and Foreign Loan vs. Amalgamated
Management, 658 SCRA 273)
Section 8: Court Annexed Mediation
[Note: This is a new section provided
by AM No. 19-10-20-SC]
COURT ANNEXED MEDIATION:
- After pre-trial and, after issues are joined, the court
shall refer the parties for mandatory court-annexed
mediation. (Sec. 8, Rule 18, AM No. 19-10-20-SC)
WHAT IS COURT-ANNEXED MEDIATION (CAM):
- It is a voluntary process conducted under the
auspices of the court by referring the parties to the
Philippine Mediation Center (PMC) Unit for the
settlement of their dispute, assisted by a Mediator
accredited by the Supreme Court. (AM No. 11-1-6-
SC PHILJA, January 11, 2011)
CIVIL PROCEDURE 61
 CIVIL PROCEDURE
Morillo Notes
WHAT ARE THE CASES SUBJECT TO C.A.M.?
1. All civil cases, except those which by law may not be
compromised (Article 2035, New Civil Code);
2. Special proceedings for the settlement of estates;
3. The civil aspect of Quasi-Offenses under Title 14 of
the Revised Penal Code;
4. The civil aspect of criminal cases where the
imposable penalty does not exceed six years
imprisonment and the offended party is a private
person; and
5. The civil aspect of theft (not qualified theft), estafa
(not syndicated or large scale estafa), and libel. (AM
No. 11-1-6-SC PHILJA, January 11, 2011)
WHAT ARE THE THAT CANNOT BE REFERRED TO
C.A.M.?
1. Civil cases which by law cannot be compromised, as
follows:
a. The civil status of persons;
b. The validity of a marriage or a legal
separation;
c. Any ground for legal separation;
d. Future support;
e. The jurisdiction of courts; and
f. Future legitime.
2. Civil aspect of non-mediatable criminal cases;
3. Petitions for Habeas Corpus;
4. All cases under Republic Act No. 9262 (Violence
against Women and Children); and
5. Cases with pending application for Restraining
Orders/Preliminary Injunctions. (AM No. 11-1-6-SC
PHILJA, January 11, 2011)
Note: In cases covered in numbers 1, 4 and 5 where the parties
inform the court that they have agreed to undergo mediation on
some aspects thereof, e.g., custody of minor children, separation
of property, or support pendente lite, the court shall refer them to
mediation.
PERIOD FOR COURT-ANNEXED MEDIATION:
- it shall not exceed 30 calendar days without further
extension. (Sec. 8, Rule 18, AM No. 19-10-20-SC)
Section 9: Judicial dispute resolution
[Note: This is a new section provided
by AM No. 19-10-20-SC]
NO TERMINATION OF PRE-TRIAL FOR FAILURE TO
SETTLE:
- The judge should not allow the termination of pre-
trial because of the manifestation of the parties that
they cannot settle the case. Instead, he should
expose the parties to the advantages of pre-trial. (AM
No. 02-1-09-SC)
- If all efforts to settle fail, the trial judge shall endeavor
to achieve other purposes of a pre-trial like obtaining
admissions or stipulations of fact. To obtain
admissions, the judge shall ask the parties to submit
whatever depositions that have been taken under 23,
the answers to written interrogatories under the Rule
25 and the answers to requests for admissions by
the adverse party under Rule 26. He may, also,
require the production of documents or things
requested by a party under Rule 27 and the results of
62 CIVIL PROCEDURE
the physical and mental examination of persons
under Rule 28 of the Rules of Court. (AM No. 03-1-
09-SC)
NATURE OF A JUDICIAL DISPUTE RESOLUTION:
- It is a process whereby the judge (called the JDR
Judge) employs conciliation, mediation or early
neutral evaluation in order to settle a case at the pre-
trial stage. In the event the JDR fails, then another
judge (called the trial judge) shall proceed to hear
and decide the case.
REFERRAL TO JUDICIAL DISPUTE RESOLUTION:
- Only if the Judge of the court to which the case was
originally raffled is convinced that settlement is still
possible, the case may be referred to another court
for judicial dispute resolution. (Sec. 9, Rule 18, AM
No. 19-10-20-SC)
PERIOD OF CONDUCTING JUDICIAL DISPUTE
RESOLUTION:
- The judicial dispute resolution shall be conducted
within a non-extendible period of fifteen (15) calendar
days from notice of failure of the court-annexed
mediation. (Sec. 9, Rule 18, AM No. 19-10-20-SC)
EFFECT OF FAILURE TO SETTLE IN JUDICIAL DISPUTE
RESOLUTION:
- If judicial dispute resolution fails, trial before the
original court shall proceed on the dates agreed
upon. (Sec. 9, Rule 18, AM No. 19-10-20-SC)
CONFIDENTIALITY:
- All proceedings during the court-annexed mediation
and the judicial dispute resolution shall be
confidential. (Sec. 9, Rule 18, AM No. 19-10-20-SC)
Section 10: Judgment after pre-trial
[Note: This is a new section provided
by AM No. 19-10-20-SC]
JUDGEMENT AFTER PRE-TRIAL:
- Should there be no more controverted facts, or no
more genuine issue as to any material fact, or an
absence of any issue, or should the answer fail to
tender an issue, the court shall, without prejudice to
a party moving for judgment on the pleadings under
Rule 34 or summary judgment under Rule 35, motu
proprio include in the pre-trial order that the case be
submitted for summary judgment or judgment on the
pleadings, without need of position papers or
memoranda. In such cases, judgment shall be
rendered within ninety (90) calendar days from
termination of the pre-trial. (Sec. 10, Rule 18, AM No.
19-10-20-SC)
- The order of the court to submit the case for
judgment pursuant to this Rule shall not be the
subject to appeal or certiorari. (Sec. 10, Rule 18, AM
No. 19-10-20-SC)
RULE 19
INTERVENTION
 CIVIL PROCEDURE
Morillo Notes
NATURE OF INTERVENTION:
- It is a remedy by which a third party (not originally
impleaded in the proceedings) becomes a litigant
therein to enable him, her or it to protect or preserve
a right or interest which may be affected by such
proceedings. (Mactan-Cebu International Airport vs.
Heirs of Minoza, 641 SCRA 520)
- It is a proceeding in a suit or action by which a third
person is permitted by the court to make himself a
party, either joining the plaintiff in claiming what is
sought by the complaint, or uniting with the
defendant in resisting the claims of the plaintiff, or
demanding something adverse to both of them.
(Mactan-Cebu International Airport vs. Heirs of
Minoza, Supra)
- It is an act or proceeding by which a third person
becomes a party in a suit pending between others for
the protection of some right of interest alleged by
him to be affected by such proceedings. (Office of
the Ombudsman vs. Samaniego, 564 SCRA 567)
REQUISITES FOR INTERVENTION:
1. He or she must not be a party to the case;
2. There must be a motion for intervention filed before
rendition of judgment by the trial court. (A motion is
necessary because leave of court is required before
a person may be allowed to intervene);
3. The movant must show in his motion that he has a:
a. Legal interest in the following:
i. The matter in litigation;
ii. The success of either of the parties
in the action; or
iii. Against both parties;
b. The isso situated as to be adversely
affected by a distribution or other
disposition of property in the custody of the
court or of an officer thereof;
c. The intervention must not unduly delay or
prejudice the adjudication of the rights of
the original parties; and
d. The intervenor’s rights may not be fully
protected in a separate proceeding.
(Mabayo Farms vs. CA, 385 SCRA 110;
Acenas II vs. CA, 247 SCRA 773)
Section 1: Who may intervene
PERSONS ALLOWED TO INTERVENE: Intervention is
allowed to a person who has the following:
1. A legal interest in the matter in litigation; or
2. A legal interest in the success of any of the parties;
or
3. An interest against both parties; or
4. When he or she is so situated as to be adversely
affected by a distraction or disposition of property in
the custody of the court or an officer thereof. (Sec. 1,
Rule 19; Fernandez vs. CA, 691 SCRA 167)
ADDITIONAL NOTES:
- Intervention is not a matter of absolute right but may
be permitted by the court when the applicant shows
facts which satisfy the requirements of the statute
authorizing intervention. Under the ROC, What
qualifies a person to intervene is his possession of a
legal interest in the matter in litigation or in the
success of either of the parties, or an interest against
both; or when he is so situated as to adversely affect
by a distribution or other disposition of property in
the custody of the court or an officer thereof.
(Executive Secretary vs. Northeast Freight, 581
SCRA 736)
- Intervention is never an independent proceeding but
ancillary and supplemental to an existing litigation
and in subordination to the main proceeding. (Saw
vs, CA, 195 SCRA 740)
- The purpose of intervention is to enable a stranger to
an action to become a party to protect his interest.
(Santiago Land Development vs. CA, 267 SCRA 79)
- An intervention cannot alter the nature of the action
and the issues already joined. (Castro vs. David, 100
Phil. 454)
- The court’s power to allow or deny intervention is
circumscribed by the basic demand of sound
juridical procedure that only a person with interest in
an action or proceeding may be allowed to intervene.
A court has no authority to allow a person, who has
no interest in an action or proceeding, to intervene.
(Anonuevo vs. Intestate of Jalandoni, 636 SCRA 420
“LEGAL INTEREST” REFERRED:
- As regards to the legal interest as a qualifying factor,
the SC has ruled that such interest must be of a
direct and immediate character so that the intervenor
will either gain or lose by the direct legal operation of
the judgment. (Executive Secretary vs. Northeast
Freight, Supra)
- The interest must be actual and material, a concern
which is more than mere curiosity, or academic or
sentimental desire; it must not be indirect and
contingent, indirect and remove, conjectural,
consequential or collateral. However,
notwithstanding the presence of a legal interest,
permission to intervene is subject to the sound
discretion of the court, the exercise of which is
limited by considering “whether or not the
intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and
whether or not the intervenor’s rights may be fully
protected in a separate proceeding. (Executive
Secretary vs. Northeast Freight, Supra)
- In an action for foreclosure of mortgage, the alleged
owners of the land sought to be foreclosed may
intervene. They have an interest in the matter in
litigation of such direct and immediate character that
they stand to gain or loss by the direct legal
operation and effect of the judgment. (Roxas vs.
Dinglasan, 28 SCRA 430)
Section 2: Time to intervene
TIME FOR INTERVENTION:
- The motion to intervene may be filed at any time
before the rendition of judgment by the trial court.
(Sec. Rule 2, Rule 19)
- Hence, Intervention after trial and decision can no
longer be permitted. (Yau vs. manila Banking Corp.,
384 SCRA 340)
WHEN INTERVENTION IS NOT PROPER:
- Generally, an independent controversy cannot be
injected into a suit by intervention, hence, such
CIVIL PROCEDURE 63
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Morillo Notes
intervention will not be allowed where it would
enlarge the issues in the action and expand the
scope of the remedies.
- It is not proper where there are certain facts giving
the intervenor’s case an aspect peculiar to himself
and differentiating it clearly from that of the original
parties; the proper course is for the would-be
intervenor to litigate his claim in a separate suit.
- Intervention is not intended to change the nature and
character of the action itself, or to stop or delay the
placid operation of the machinery of the trial.
- The remedy of intervention is not proper where it will
have the effect of retarding the principal suit or
delaying the trial of the action. (Mactan-Cebu
International Airport vs. Heirs of Minoza, 641 SCRA
520)
Section 3: Pleadings-in-intervention
PLEADING-IN-INTERVENTION:
- The intervenor shall file a complaint- in-Intervention if
he or she asserts a claim against either or all of the
original parties, or an answer-in-intervention if he or
she unites with the defending party in resisting a
claim against the latter. (Sec. 3, Rule 19)
Section 4: Answer to complaint-in-intervention
ANSWER TO COMPLAINT-IN-INTERVENTION:
- The answer to the complaint-in-intervention shall be
filed within fifteen (15) calendar days from notice of
the order admitting the same, unless a different
period is fixed by the court. (Sec. 4, Rule 19)
RULE 20
CALENDAR OF CASES
Section 1: Calendar of Cases
CALENDAR OF CASES:
- The clerk of court, under the direct supervision of the
judge, shall keep a calendar of cases for pre-trial, for
trial, those whose trials were adjourned or
postponed, and those with motions to set for
hearing. Preference shall be given to habeas corpus
cases, election, cases, special civil actions, and
those so required by law. (Sec. 1, Rule 20)
Section 2: Assignment of Cases
ASSIGNMENT OF CASES:
- The assignment of cases to the different branches of
a court shall be done exclusively by raffle. The
assignment shall be done in open session of which
adequate notice shall be given so as to afford
interested parties the opportunity to be present.
(Sec. 2, Rule 20)
64 CIVIL PROCEDURE
- The raffle of cases is of vital importance to the
administration of justice because it is intended to
insure impartial adjudication of cases. By raffling the
cases public suspicion regarding assignment of
cases to predetermined judges is obviated. A
violation or disregard of the Court’s circular on how
the raffle of cases should be conducted is not to be
countenanced. A party has the right to be heard by
an impartial and unbiased tribunal.cWhen the
respondent judge conducted the raffle of the three
criminal cases in question, apparently in violation of
the Court’s Circular No. 7, he did not only arouse the
suspicion that he had some ulterior motive for doing
so, but he violated the cardinal rule that all judicial
processes must be done above board. We consider
the procedure of raffling cases to be an important
element of judicial proceedings, designed precisely
to give assurance to the parties that the court
hearing their case would be impartial. On this point,
we found the petition meritorious. (Ang Kek Chen vs.
Bello, GR no. L-76344-46, June 30, 1988)
RULE 21
SUBPOENA
Section 1: Subpoena and Subpoena Duces Tecum
MEANING OF SUBPOENA:
- It is a process directed to a person requiring him or
her to attend and to testify at the hearing or the trial
of an action, or at any investigation conducted by
competent authority, or for the taking of his or her
deposition. (Sec. 1, Rule 21, AM No. 19-10-20-SC)
SUBPOENA DUCES TECUM:
- It is a process directed to a person requiring him or
her to bring with him or her any books, documents,
or other things under his or her control. Sec. 1, Rule
21, AM No. 19-10-20-SC)
- Well-settled is Our jurisprudence that, in order to
entitle a party to the issuance of a "subpoena duces
tecum ", it must appear, by clear and unequivocal
proof, that the book or document sought to be
produced contains evidence relevant and material to
the issue before the court, and that the precise book,
paper or document containing such evidence has
been so designated or described that it may be
identified. A "subpoena duces tecum once issued by
the court may be quashed upon motion if the
issuance thereof is unreasonable and oppressive or
the relevancy of the books, documents or things
does not appear, or if the persons in whose behalf
the subpoena is issued fails to advance the
reasonable cost of production thereof. (Universal
Rubber Products, Inc. vs. CA, GR no. 30266, June
29, 1984)
Section 2: By whom issued
 CIVIL PROCEDURE
Morillo Notes
WHO MAY ISSUE A SUBPOENA?
1. The court before whom the witness is required to
attend;
2. The court of the place where the deposition is to be
taken;
3. The officeror body authorized by law to do so in
connection with investigations conducted by said
officer or body; or
4. Any Justice of the Supreme Court or the Court of
Appeals in any case or investigation pending within
the Philippines. (Sec. 2, Rule 21, AM No. 19-10-20-
SC)
SUBPOENA FOR THE PRISONER:
- When an application for a subpoena to a prisoner is
made, the judge or officer shall examine and study
carefully such application to determine whether the
same is made for a valid purpose. (Sec. 2, Rule 21,
AM No. 19-10-20-SC)
- No prisoner sentenced to death, reclusion perpetua
or life imprisonment and who is confined in any penal
institution shall be brought outside the penal
institution for appearance or attendance in any court
unless authorized by the Supreme Court. (Sec. 2,
Rule 21)
Section 3: Form and Contents
FORM AND CONTENTS OF A SUBPOENA:
- A subpoena shall state the name of the court and the
title of the action or investigation, shall be directed to
the person whose attendance is required, and in the
case of a subpoena duces tecum, it shall also
contain a reasonable description of the books,
documents or things demanded which must appear
to the court prima facie relevant. (Sec. 3, Rule 21)
Section 4: Quashing a subpoena
QUASHAL OF SUBPOENA DUCES TECUM:
- The court may quash a subpoena duces tecum upon
motion promptly made and, in any event, at or before
the time specified therein if it is unreasonable and
oppressive, or the relevancy of the books,
documents or things does not appear, or if the
person in whose behalf the subpoena is issued fails
to advance the reasonable cost of the production
thereof. (Sec. 4, Rule 21)
QUASHAL OF SUBPOENA AD TESTIFICADUM:
- The court may quash a subpoena ad testificandum
on the ground that the witness is not bound thereby.
In either case, the subpoena may be quashed on the
ground that the witness fees and kilometrage
allowed by these Rules were not tendered when the
subpoena was served. (Sec. 4, Rule 21)
Section 5: Subpoena for depositions
SUBPOENA FOR DEPOSITIONS:
- Proof of service of a notice to take a deposition, as
provided in Sections 15 and 25 of Rule 23, shall
constitute sufficient authorization for the issuance of
subpoenas for the persons named in said notice by
the clerk of the court of the place in which the
deposition is to be taken. (Sec. 5, Rule 21)
- The clerk shall not, however, issue a subpoena
duces tecum to any such person without an
order of the court. )Sec. 5, Rule 21)
Section 6: Service
SERVICE OF SUBPOENA:
- Service of a subpoena shall be made in the same
manner as personal or substituted service of
summons. The original shall be exhibited and a copy
thereof delivered to the person on whom it is served.
The service must be made so as to allow the witness
a reasonable time for preparation and travel to the
place of attendance. (Sec. 6, Rule 21)
- Costs for court attendance and the production of
documents and other materials subject of the
subpoena shall be tendered or charged accordingly.
(Sec. 6, Rule 21, AM No. 19-10-10=20-SC)
Section 7: Personal appearance in court
PERSONAL APPEARANCE IN COURT:
- A person present in court before a judicial officer
may be required to testify as if he or she were in
attendance upon a subpoena issued by such court
or officer. (Sec. 7, Rule 21, AM No. 19-10-20-SC)
Section 8: Compelling attendance
COMPELLING ATTENDANCE:
- In case of failure of a witness to attend, the court or
judge issuing the subpoena, upon proof of the
service thereof and of the failure of the witness, may
issue a warrant to the sheriff of the province, or his or
her deputy, to arrest the witness and bring him or her
before the court or officer where his or her
attendance is required, and the cost of such warrant
and seizure of such witness shall be paid by the
witness if the court issuing it shall determine that his
or her failure to answer the subpoena was willful and
without just excuse. (Sec. 8, Rule 21, AM No. 19-10-
20-SC)
Section 9: Contempt
CONTEMPT:
- Failure by any person without adequate cause to
obey a subpoena served upon him or her shall be
deemed a contempt of the court from which the
subpoena is issued. If the subpoena was not issued
by a court, the disobedience thereto shall be
punished in accordance with the applicable law or
Rule. (Sec. 9, Rule 21)
Section 10: Exceptions
EXCEPTIONS TO RULE 8 AND RULE 9:
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- The provisions of Sections 8 and 9 of this Rule shall
not apply to a witness who resides more than one
hundred (100) kilometers from his or her residence to
the place where he or she is to testify by the ordinary
course of travel, or to a detention prisoner if no
permission of the court in which his or her case is
pending was obtained. (Sec. 10, Rule 21, AM No. 19-
10-20-SC)
RULE 22
COMPUTATION OF TIME
Section 1: How to compute time
HOW TO COMPUTE TIME:
- In computing any period of time prescribed or
allowed by these Rules, or by order of the court, or
by any applicable statute, the day of the act or
event from which the designated period of time
begins to run is to be excluded and the date of
performance included. If the last day of the period,
as thus computed, falls on a Saturday, a Sunday, or
a legal holiday in the place where the court sits, the
time shall not run until the next working day. (Sec. 1,
Rule 22)
Section 2: Effect of interruption
EFFECT OF INTERRUPTION:
- Should an act be done which effectively interrupts
the running of the period, the allowable period after
such interruption shall start to run on the day after
notice of the cessation of the cause thereof. (Sec. 2,
Rule 22)
- The day of the act that caused the interruption shall
be excluded in the computation of the period. (Sec.
2, Rule 22)
FRESH PERIOD RULE (NEYPES RULING):
- If the motion is denied, the movant has a “fresh
period” of 15 days from receipt or notice of the order
denying or dismissing the motion for reconsideration
within which to file a notice of appeal. (Neypes vs.
CA, 469 SCRA 633)
- This new period becomes significant if either a
motion for reconsideration or a motion for new trial
has been filed but was denied or dismissed.
- Accordingly, this rule was adopted to standardize the
appeal period in the ROC and to afford fair
opportunity to review the case, and, in the process,
minimize any error of judgment. (Neypes vs. CA,
Supra)
- The rule in Neypes vs. CA was adopted by the SC by
the latter’s power to amend, repeal and create new
procedural rules in all courts. (Manaloto vs. Veloso III,
632 SCRA 347)
NO APPLICATION OF THE FRESH PERIOD RULE (NEYPES
RULE):
- The ruling in Neypes vs. CA shall not apply where no
motion for new trial or motion for reconsideration has
66 CIVIL PROCEDURE
been filed, in which case the 15-day period for
appeal shall run from notice of the judgment.
APPLICATION OF THE “FRESH PERIOD” RULE IN CIVIL
PROCEDURE:
1. Rule 40
2. Rule 41
3. Rule 42
4. Rule 43
5. Rule 45
RETROACTIVE APPLICATION OF THE FRESH PERIOD
RULE:
- This “fresh period” has a retroactive application to
cases pending and undetermined upon its effectivity.
- The general rule is that procedural laws may be given
retroactive effect to actions pending and
undetermined at the time of their passage, there
being no vested rights in the rules of procedure.
(Sumiran vs. Damaso, 596 SCRA 450)
RULE 23
DEPOSITIONS PENDING ACTIONS
PRELIMINARY DISCUSSION
ON THE MODES OF DISCOVERY:
MEANING OF DISCOVERY:
- Generally, it is a device employed by a party to
obtain information about relevant matters on the
case from the adverse party in preparation for the
tria. As contemplated by the ROC, the device may be
used by all the parties to the case. (Riano (2014),
Civil Procedure Vol. 1, p. 510)
PURPOSE OF DISCOVERY:
- To permit mutual knowledge before trial of all
relevant facts gathered by both parties so that either
party may compel the other to disgorge facts
whatever he has in his possession.
- The modes of discovery are designed to serve as an
additional device aside from a pre-trial. (Tinio vs.
Manzano, 307 SCRA 460)
DUTY OF THE COURT IN RELATION TO THE MODES OF
DISCOVERY:
- Aside from preparing the summons within 1 day from
the receipt of the complaint, the court is required to
issue an order requiring the parties to avail of
interrogatories to parties under Rule 25 and request
for admission by adverse party under Rule 26, or, at
their discretion, make use of depositions under Rule
23, or other measures under Rules 27 and 28 within
5 days from the filing of the answer. (AM No. 03-1-
09-SC)
- A copy of this order SHALL BE SERVED UPON THE
DEFENDANT TOGETHER WITH THE SUMMONS. a
copy of the shall also be served upon the plaintiff.
(AM No. 03-1-09-SC)
MODES OF DISCOVERY UNDER THE RULES OF COURT:
 CIVIL PROCEDURE
Morillo Notes
a. Depositions pending action (Rule 23);
b. Depositions before action or pending appeal (Rule
24);
c. Interrogatories to parties (Rule 25);
d. Admission by adverse party (Rule 26);
e. Production or inspection of documents or things
(Rule 27); and
f. Physical and mental examination of persons (Rule
28)
Section 1: Depositions pending action,
who may be taken
NATURE OF A DEPOSITION:
- It is the taking of the testimony of any person,
whether he be a party or not, but at the instance of a
party to the action. This testimony is taken out of
court.
- A deposition may be sought for use in a pending
action; a future action; or for use in a pending
appeal. (Rule 23-24)
- Upon ex parte motion of a party, the testimony of
any person, whether a party or not, may be taken by
deposition upon oral examination or written
interrogatories. The attendance of witnesses may be
compelled by the use of a subpoena as provided in
Rule 21. Depositions shall be taken only in
accordance with these Rules. (Sec. 1, Rule 23)
TWO METHODS FOR TAKING DEPOSITION:
a. By an oral examination; or
b. By a written interrogatory. (Sec. 1, Rule 23)
DEPOSITION OF A PRISONER:
- When it is the deposition of a prisoner that is to be
taken, his deposition may be taken only with leave of
court and upon such terms as the court may
prescribe. (Sec. 1, Rule 23)
Section 2: Scope of examination
SCOPE OF EXAMINATION OF THE DEPONENT:
- Unless otherwise ordered by the court as provided
by Section 16 or 18 of this Rule, the deponent may
be examined regarding any matter, not privileged,
which is relevant to the subject of the pending
action, whether relating to the claim or defense of
any other party, including the existence, description,
nature, custody, condition, and location of any
books, documents, or other tangible things and the
identity and location of persons having knowledge of
relevant facts. (Sec. 2, Rule 23)
- Relevant Sections: Secs. 15, 16, 1, 3, 2, and 17 of
Rule 23
Section 3: Examination and cross-examination
EXAMINATION AND CROSS-EXAMINATION:
- Examination and cross-examination of deponents
may proceed as permitted at the trial under Sections
3 to 18 of Rule 132. (Sec. 3, Rule 23)
- [Note: See further discussion on Secs. 3 to 18 of
Rule 132 (Evidence)]
- Relevant Sections: Secs. 15, 16, 1, 3, 2, and 17 of
Rule 23
Section 4: Use of depositions
USE OF DEPOSITIONS PENDING ACTION:
- Any part or all of the deposition (so far as admissible
under the rules on evidence) may be used on the
following:
a. Against any party who was present or
represented at the taking of the deposition;
or
b. Against one who had due notice of the
deposition. (Sec. 4, Rule 23)
- The deposition, or any of its parts, may be used at
the trial or upon the hearing of a motion or an
interlocutory proceeding. (Sec. 4, Rule 23)
- The deposition may be used for the following
purposes:
a. For contradicting or impeaching the
testimony of the deponent as a witness;
b. For any purpose by the adverse party where
the deponent is a party or, at the time of
taking the deposition was an officer,
director, or managing agent of a public or
private corporation, partnership, or
association which is a party;
c. For any purpose by any party, where the
deponent is a witness, whether or not a
party, if the court finds that:
i. the witness is dead;
ii. that the witness resides more than
100 kilometers from the place of
trial or hearing, or is out of the
Philippines, unless it appears that
his absence was procured by the
party offering the deposition;
iii. that the witness is unable to attend
or testify because of age, sickness,
infirmity, or imprisonment;
iv. that the party offering the
deposition has been unable to
procure the attendance of
witnesses by subpoena; or
v. when exceptional circumstances
exists, upon application and
notice. (Sec. 4, Rule 23)
Section 5: Effect of substitution of parties
EFFECT OF SUBSTITUTION OF PARTIES:
- Substitution of parties does not affect the right to use
depositions previously taken; and, when an action
has been dismissed and another action involving the
same subject is afterward brought between the same
parties or their representatives or successors in
interest, all depositions lawfully taken and duly filed
in the former action may be used in the latter as if
originally taken therefor. (Sec. 5, Rule 23)
Section 6: Objections to admissibility
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 CIVIL PROCEDURE
Morillo Notes
OBJECTIONS TO ADMISSIBILITY:
- This is subject to the provisions of Section 29 of this
Rule;
- That objections may be made at the trial or hearing
to receiving in evidence any deposition or part
thereof for any reason which would require the
exclusion of the evidence if the witness were then
present and testifying. (Sec. 6, Rule 23)
Section 7: Effect of taking depositions
EFFECT OF TAKING DEPOSITIONS:
- A party shall not be deemed to make a person his or
her own witness for any purpose by taking his or her
deposition. (Sec. 7, Rule 23)
Section 8: Effect of using depositions
EFFECT OF USING DEPOSITIONS:
- The introduction in evidence of the deposition or any
part thereof for any purpose other than that of
contradicting or impeaching the deponent makes the
deponent the witness of the party introducing the
deposition, but this shall not apply to the use by an
adverse party of a deposition as described in
paragraph (b) of Section 4 of this Rule. (Sec. 8, Rule
23)
Section 9: Rebutting deposition
REBUTTING DEPOSITION:
- At the trial or hearing, any party may rebut any
relevant evidence contained in a deposition whether
introduced by him or her or by any other party. (Sec.
9, Rule 23)
Section 10: Persons before whom deposition
may be taken within the Philippines
PERSONS BEFORE WHOM THE DEPOSITION MAY BE
TAKEN WITHIN THE PHILIPPINES:
- Within the Philippines, a deposition need not be
taken before a judge, although it may be taken
before one. It may also be taken before a notary
public (Sec. 10, Rule 23) or before any person
authorized to administer oaths if the parties so
stipulate in writing. (Sec. 14, Rule 23)
Section 11: Persons before whom deposition
may be taken in foreign countries
PERSONS BEFORE WHOM DEPOSITION MAY BE TAKEN
IN FOREIGN COUNTRIES:
- Outside of the Philippines, a deposition may be taken
before the following persons;
a. A secretary of an embassy or legation,
consul general, consul, vice-consul, or
consular agent of the Republic of the
Philippines;
68 CIVIL PROCEDURE
b. Such person or officer as may be appointed
by the commission or letters rogatory; or
c. A person authorized to administer oaths by
written stipulation of the parties. (Sec. 11,
Rule 23; Sec. 14, Rule 23)
Section 12: Commission or letters rogatory
COMMISSION OR LETTERS ROGATORY:
- A commission or letters rogatory shall be issued only
when necessary or convenient, on application and
notice, and on such terms and with such direction as
are just and appropriate. Officers may be designated
in notices or commissions either by name or
descriptive title and letters rogatory may be
addressed to the appropriate judicial authority in the
foreign country. (Sec. 12, Rule 23)
Section 13: Disqualification by interest
DISQUALIFICATION BY INTEREST:
- No deposition shall be taken before the following
persons:
a. A relative within the 6th degree of
consanguinity or affinity, or employee or
counsel of any of the parties;
b. A relative within the same degree, or
employee of such counsel; or
c. One financially interested in the action. (Sec.
13, Rule 23)
Section 14: Stipulations regarding
taking of depositions
STIPULATIONS REGARDING TAKING OF DEPOSITIONS:
- If the parties so stipulate in writing, depositions may
be taken before any person authorized to administer
oaths, at any time or place, in accordance with these
Rules, and when so taken may be used like other
depositions. (Sec. 14, Rule 23)
Section 15: Deposition upon oral examination; notice;
time and place
ORAL DEPOSITION:
- A party desiring to take the deposition of any person
upon oral examination shall give to every party to the
action a reasonable notice in writing. (Sec. 15, Rule
23)
CONTENTS OF THE NOTICE:
a. The time and place for taking the deposition; and
b. The name and address of each person to be
examined, if known; if not known, there must be a
general description sufficient to identify him or the
particular class or group to which he belongs. (Sec.
15, Rule 23)
Section 16: Orders for the protection
of parties and deponents
 CIVIL PROCEDURE
Morillo Notes
PRELIMINARY NOTES:
- After the notice is served, the court may make any
order for the protection of the parties and the
deponents. (Sec. 16, Rule 23)
- The court may make any other order which justice
requires to protect the party or witness from
annoyance, embarrassment, or oppression. (Sec. 16,
Rule 23)
ORDERS FOR THE PROTECTION OF PARTIES AND
DEPONENTS:
a. That the deposition shall not be taken;
b. That the deposition may be taken only at some
designated place other than that stated in the notice;
c. That the deposition may be taken only on written
interrogatories;
d. That certain matters shall not be inquired into;
e. That the scope of the examination shall be held with
no one present except the parties to the action and
their officers or counsel;
f. That after being sealed the deposition shall be
opened only by order of the court;
g. That secret processes, developments, or research
need not be disclosed; or
h. That the parties shall simultaneously file specified
documents or information enclosed in sealed
envelopes to be opened as directed by the court.
(Sec. 16, Rule 23)
Section 17: Record of examination;
oath ; objections
ORAL DEPOSITION; CERTAIN GUIDELINES FOR ORAL
DEPOSITION:
● The officer before whom the deposition is taken shall
put the witness on oath;
● The testimony of the witness or deponent must be
recorded and be taken stenographically, unless the
parties agree otherwise;
● All objections made at the time of the examination
shall be noted;
● Evidence objected to shall be taken but subject to
the objections.
● In lieu of participating in the oral examination, parties
served with notice of taking a deposition may
transmit written interrogatories to the officers, who
shall propound them to the witness and record the
answers verbatim. (Sec. 17, Rule 23)
Section 18: Motion to terminate
or limit examination
MOTION TO TERMINATE OR LIMIT EXAMINATION:
- At any time during the taking of the deposition, on
motion or petition of any party or of the deponent
and upon a showing that the examination is being
conducted in bad faith or in such manner as
unreasonably to annoy, embarrass, or oppress the
deponent or party, the court in which the action is
pending or the Regional Trial Court of the place
where the deposition is being taken may order the
officer conducting the examination to cease forthwith
from taking the deposition, or may limit the scope
and manner of the taking of the deposition, as
provided in Section 16 of this Rule.
- If the order made terminates the examination, it shall
be resumed thereafter only upon the order of the
court in which the action is pending.
- Upon demand of the objecting party or deponent,
the taking of the deposition shall be suspended for
the time necessary to make a notice for an order. In
granting or refusing such order, the court may
impose upon either party or upon the witness the
requirement to pay such costs or expenses as the
court may deem reasonable. (Sec. 18, Rule 23)
Section 19: Submission to witness;
changes; signing
ORAL DEPOSITION; SUBMISSION TO WITNESS;
CHANGES; WHEN SIGNED:
- When the testimony is fully transcribed, the
deposition shall be submitted to the witness for
examination and shall be read to or by him or her,
unless such examination and reading are waived by
the witness and by the parties.
- Any changes in form or substance which the witness
desires to make shall be entered upon the deposition
by the officer with a statement of the reasons given
by the witness for making them.
- The deposition shall then be signed by the witness,
unless the parties by stipulation waive the signing or
the witness is ill or cannot be found or refuses to
sign. (Sec. 19, Rule 23)
ORAL DEPOSITION; SUBMISSION TO WITNESS;
CHANGES; WHEN NOT SIGNED:
- If the deposition is not signed by the witness, the
officer shall sign it and state on the record the fact of
the waiver or of the illness or absence of the witness
or the fact of the refusal to sign together with the
reason given therefor, if any, and the deposition may
then be used as fully as though signed, unless on a
motion to suppress under Section 29(f) of this Rule,
the court holds that the reasons given for the refusal
to sign require rejection of the deposition in whole or
in part. (Sec. 19, Rule 23)
Section 20: Certification and filing by officer
ORAL DEPOSITION; CERTIFICATION AND FILING BY
OFFICER:
- The officer shall certify on the deposition that the
witness was duly sworn to by him or her and that the
deposition is a true record of the testimony given by
the witness.
- He or she shall then securely seal the deposition in
an envelope indorsed with the title of the action and
marked "Deposition of (here insert the name of
witness)" and shall promptly file it with the court in
which the action is pending or send it by registered
mail to the clerk thereof for filing. (Sec. 20, Rule 23)
Section 21: Notice of Filing
NOTICE OF FILING:
CIVIL PROCEDURE 69
 CIVIL PROCEDURE
Morillo Notes
- The officer taking the deposition shall give prompt
notice of its filing to all the parties. (Sec. 21, Rule 23)
Section 22: Furnishing copies
FURNISHING COPIES:
- Upon payment of reasonable charges therefor, the
officer shall furnish a copy of the deposition to any
party or to the deponent. (Sec. 21, Rule 23)
Section 23: Failure to attend of
the party giving notice
FAILURE TO ATTEND OF THE PARTY GIVING NOTICE:
- If the party giving the notice of the taking of a
deposition fails to attend and proceed therewith and
another attends in person or by counsel pursuant to
the notice, the court may order the party giving the
notice to pay such other party the amount of the
reasonable expenses incurred by him or her and his
or her counsel in so attending, including reasonable
attorney's fees. (Sec. 23, Rule 23)
Section 24: Failure of party giving notice
to serve subpoena
FAILURE OF PARTY GIVING NOTICE TO SERVE
SUBPOENA:
- If the party giving the notice of the taking of a
deposition of a witness fails to serve a subpoena
upon him or her and the witness because of such
failure does not attend, and if another party attends
in person or by counsel because he or she expects
the deposition of that witness to be taken, the court
may order the party giving the notice to pay such
other party the amount of the reasonable expenses
incurred by him or her and his or her counsel in so
attending, including reasonable attorney's fees. (Sec.
24, Rule 23)
Section 25: Deposition upon written interrogatories;
service of notice and of interrogatories
DEPOSITION UPON WRITTEN INTERROGATORIES:
- A party desiring to take the deposition of any person
upon written interrogatories shall serve them upon
every other party with a notice stating the name and
address of the person who is to answer them and the
name or descriptive title and address of the officer
before whom the deposition is to be taken. (Sec. 25,
Rule 23)
DEPOSITION UPON WRITTEN INTERROGATORIES;
PERIODS OF SERVICE:
- Within ten (10) calendar days thereafter, a party so
served may serve cross-interrogatories upon the
party proposing to take the deposition. Within five (5)
calendar days thereafter the latter may serve re-
direct interrogatories upon a party who has served
cross- interrogatories. Within three (3) calendar days
after being served with re-direct interrogatories, a
party may serve recross- interrogatories upon the
70 CIVIL PROCEDURE
party proposing to take the deposition. (Sec. 25, Rule
25, AM No. 19-10-20-SC)
Section 26: Officers to take responses
and prepare record
DEPOSITION UPON WRITTEN INTERROGATORIES;
OFFICERS TO TAKE RESPONSES AND PREPARE
RECORD:
- A copy of the notice and copies of all interrogatories
served shall be delivered by the party taking the
deposition to the officer designated in the notice,
who shall proceed promptly, in the manner provided
by Sections 17, 19 and 20 of this Rule, to take the
testimony of the witness in response to the
interrogatories and to prepare, certify, and file or mail
the deposition, attaching thereto the copy of the
notice and the interrogatories received by him or her.
(Sec. 26, Rule 23)
Section 27: Notice of filing and furnishing copies
NOTICE OF FILING AND FURNISHING COPIES:
- When a deposition upon interrogatories is filed, the
officer taking it shall promptly give notice thereof to
all the parties and may furnish copies to them or to
the deponent upon payment of reasonable charges
therefor. (Sec. 27, Rule 23)
Section 28: Orders for the protection
of parties and deponents
ORDERS FOR THE PROTECTION OF PARTIES AND
DEPONENTS:
- After the service of the interrogatories and prior to
the taking of the testimony of the deponent, the court
in which the action is pending, on motion promptly
made by a party or a deponent, and for good cause
shown, may make any order specified in Sections 15,
16 and 18 of this Rule which is appropriate and just
or an order that the deposition shall not be taken
before the officer designated in the notice or that it
shall not be taken except upon oral examination.
(Sec. 28, Rule 23)
Section 29: Effect of errors and
irregularities in depositions
ERRORS AND
EFFECT:
IRREGULARITIES:
a. As to notice All errors and irregularities in the
notice for taking a deposition
are waived unless written
objection is promptly served
upon the party giving the
notice.
b. As to disqualification Objection to taking a deposition
of officer because of disqualification of
the officer before whom it is to
be taken is waived unless made
 CIVIL PROCEDURE
Morillo Notes
before the taking of the
deposition begins or as soon
thereafter as the disqualification
becomes known or could be
discovered with reasonable
diligence.
c. As to competency or Objections to the competency
relevancy of evidence of a witness or the competency,
relevancy, or materiality of
testimony are not waived by
failure to make them before or
during the taking of the
deposition, unless the ground of
the objection is one which
might have been obviated or
removed if presented at that
time.
Errors and irregularities
d. As to oral examination
occurring at the oral
and other particulars
examination in the manner of
taking the deposition, in the
form of the questions or
answers, in the oath or
affirmation, or in the conduct of
the parties and errors of any
kind which might be obviated,
removed, or cured if promptly
prosecuted, are waived unless
reasonable objection thereto is
made at the taking of the
deposition.
e. As to form of written Objections to the form of
interrogatories written interrogatories
submitted under Sections 25
and 26 of this Rule are waived
unless served in writing upon
the party propounding them
within the time allowed for
serving succeeding cross or
other interrogatories and within
three (3) calendar days after
service of the last
interrogatories authorized.
f. As to manner of Errors and irregularities in the
manner in which the testimony
preparation
is transcribed or the deposition
is prepared, signed, certified,
sealed, indorsed, transmitted,
filed, or otherwise dealt with by
the officer under Sections 17,
19, 20 and 26 of this Rules are
waived unless a motion to
suppress the deposition or
some part thereof is made with
reasonable promptness after
such defect is, or with due
diligence might have been,
ascertained.
Source: Sec. 29, Rule 23)
RULE 24
DEPOSITIONS BEFORE ACTION
OR PENDING APPEAL
DIFFERENCE BETWEEN DEPOSITIONS UNDER RULE 23
AND DEPOSITIONS UNDER RULE 24:
DEPOSITION RULE 23 DEPOSITION RULE 24
Deposition “De benne esse” Deposition “In perpetuam
rei memoriam”
If the deposition is for use If the deposition
during a pending action perpetuates a testimony for
use in future proceedings,
as when it is sought before
the existence of an action,
or for cases on appeal.
DEPOSITION BEFORE ACTION (DEPOSITION UNDER
RULE 24):
- This type of deposition is availed of when a person
desire to perpetuate his own testimony or that of
another person regarding any matter that may be
cognizable in any court of the Philippines. (Sec. 1,
Rule 24)
PERPETUATION OF TESTIMONY BEFORE ACTION:
- the perpetuation of a testimony is done by filing a
verified petition in the place of the residence of any
expected adverse party. (Sec. 1, Rule 24)
- Notices shall be sent in accordance with the ROC
(Sec. 3, Rule 24) and if the court is satisfied that the
perpetuation of the testimony may prevent a failure
or delay of justice, it shall make the appropriate order
for the taking of the deposition. (Sec. 4, Rule 24)
- The deposition taken under this Rule (Rule 24) is
admissible in evidence in any action subsequently
brought involving the same subject matter. (Sec. 6,
Rule 24)
DEPOSITIONS PENDING APPEAL:
- If an appeal has been taken from a judgment of a
court, including the Court of Appeals in proper
cases, or before the taking of an appeal if the time
therefor has not expired, the court in which the
judgment was rendered may allow the taking of
depositions of witnesses to perpetuate their
testimony for use in the event of further proceedings
in the said court. (Sec. 7, Rule 24)
- In such case the party who desires to perpetuate the
testimony may make a motion in the said court for
leave to take the depositions, upon the same notice
and service thereof as if the action was pending
therein. (Sec. 7, Rule 24)
- The motion shall state (a) the names and addresses
of the persons to be examined and the substance of
the testimony which he or she expects to elicit from
each; and (b) the reason for perpetuating their
testimony. (Sec. 7, Rule 24)
- If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of
justice, it may make an order allowing the
depositions to be taken, and thereupon the
depositions may be taken and used in the same
manner and under the same conditions as are
prescribed in these Rules for depositions taken in
pending actions. (Sec. 7, Rule 24)
CIVIL PROCEDURE 71
 CIVIL PROCEDURE
Morillo Notes
2. No party may, without leave of court, serve more
than one set of interrogatories to be answered by the
RULE 25
same party. (Sec. 4, Rule 24)
INTERROGATORIES TO PARTIES 3. The interrogatories shall be answered fully in writing
and shall be signed and sworn to by the person
making them. The party upon whom the
PURPOSE OF INTERROGATORIES TO PARTIES: interrogatories have been served shall file and serve
- This is available by a party to the action for the a copy of the answers on the party submitting the
purpose of eliciting material and relevant facts from interrogatories within fifteen (15) calendar days after
any adverse party. (Sec. 1, Rule 25) service thereof, unless the court, on motion and for
- Existing rules consider this mode of discovery as good cause shown, extends or shortens the time.
important because within one day from receipt of the (Sec. 2, Rule 24, AM No. 19-10-20-SC)
complaint, the rule mandates not only the 4. Objections to any interrogatories may be presented
preparation of the summons but also the issuance of to the court within ten (10) calendar days after
an order requiring the parties Rule 25 and request for service thereof, with notice as in case of a motion;
admission by adverse party under Rule 26. However, and answers shall be deferred until the objections
the parties may use (at their discretion) depositions are resolved, which shall be at as early a time as is
under Rule 23 or other measures under Rule 27 and practicable. (Sec. 3, Rule 24, AM No. 19-10-20-SC)
29 within 5 days from the filing of the answer. (AM
No. 03-1-09-SC, IA, 1) SCOPE AND USE OF INTERROGATORIES:
- Interrogatories may relate to any matters that can be
INTERROGATORIES TO PARTIES VS. BILL OF inquired into under Section 2 of Rule 23, and the
PARTICULARS: answers may be used for the same purposes
provided in Section 4 of the same Rule. (Sec. 5, Rule
INTERROGATORIES 25)
BILL OF PARTICULARS
TO PARTIES
EFFECT OF FAILURE TO SERVE WRITTEN
This is not directed against This is directed to a INTERROGATORIES:
a particular pleading but, pleading and is designed to - Unless thereafter allowed by the court for good
instead, they seek the seek for a more definite cause shown and to prevent a failure of justice, a
disclosure of all material and statement or for particulars party not served with written interrogatories may not
relevant facts from a party. of any matter not averred be compelled by the adverse party to give testimony
(Sec. 1, Rule 25) with sufficient definiteness in open court, or to give a deposition pending
in a pleading. (Sec. 1, Rule appeal. (Sec. 6, Rule 25)
12)

INTERROGATORIES TO PARTIES VS. WRITTEN RULE 26

INTERROGATORIES IN A DEPOSITION: ADMISSION BY ADVERSE PARTY
WRITTEN
INTERROGATORIES TO
INTERROGATORIES IN A
PARTIES
DEPOSITION PURPOSE OF ADMISSION BY ADVERSE PARTY:
● To allow one party to request the adverse party, in
This is served directly upon This is not served upon the writing, to admit certain material and relevant matters
the adverse party. (Sec. 1, adverse party directly. which will not be disputed during the trial.
Rule 25) Instead, they are delivered ● To avoid unnecessary inconvenience to the parties in
to the officer designated in going through the rigors of proof before the trial, a
the notice. (Sec. 26, Rule party may request the other to:
23) ○ admit the genuineness of any material and
relevant document described in and exhibit
The service of written with the request; or
interrogatories is a mode of ○ admit the truth of any material and relevant
deposition separate and matter of fact set forth in the request. (Sec.
distinct from interrogatories 1, Rule 26)
to parties. (Sec. 1, Rule 23)
WHEN REQUEST IS MADE:
- A party may file and serve the written request at any
time after issues have been joined (Sec.1, Rule 26)
PROCEDURE OF INTERROGATORIES TO PARTIES:
1. Upon ex parte motion, any party desiring to elicit
EFFECT OF NOT FILING A WRITTEN REQUEST FOR
material and relevant facts from any adverse parties
shall file and serve upon the latter written ADMISSION:
interrogatories to be answered by the party served - Unless otherwise allowed by the court for good
or, if the party served is a public or private cause shown and to prevent a failure of justice, a
corporation or a partnership or association, by any party who fails to file and serve a request for
officer thereof competent to testify in its behalf. (Sec. admission on the adverse party of material and
1, Rule 24, AM No. 19-10-20-SC) relevant facts at issue which are, or ought to be,

72 CIVIL PROCEDURE

 CIVIL PROCEDURE
Morillo Notes
within the personal knowledge of the latter, shall not
be permitted to present evidence on such facts.
(Sec. 5, Rule 26)
- Note: That within one day from receipt of the
complaint, the rule mandates not only the
preparation of the summons but also the issuance of
an order requiring the parties to avail of
interrogatories to parties under Rule 25 and request
for admission by adverse party under Rule 26.
However, the parties may use (at their discretion)
depositions under Rule 23 or other measures under
Rule 27 and 29 within 5 days from the filing of the
answer. (AM No. 03-1-09-SC, IA, 1)
EFFECT OF FAILURE TO FILE AND SERVE A SWORN
STATEMENT OF DENIAL:
- It is advisable for the party to whom the written
request is directed to file and serve upon the party
requesting the admission a sworn statement either
(a) specifically denying the matters of which
admission is requested, or (b) if he does not deny the
same, to set forth in detail the reasons why he
cannot truthfully admit or deny those matters. This
sworn statement shall be filed and served within the
period designated in the request but which shall not
be less than 15 calendar days from the service of
such request, or within such further time as the court
may allow. (Sec. 2, Rule 26, AM No. 19-10-20-SC)
- If the party to whom the written request for
admission is directed does not file the required
sworn statement, each of the matters of which an
admission is requested shall be deemed admitted.
(Sec. 2, Rule 26)
EFFECT OF ADMISSION:
- Any admission made by a party as a consequence of
the failure to comply with the request is only for the
purpose of the pending action and shall not be
deemed an admission for any other purpose.
Likewise, the admission cannot be used against the
admitting party in any other proceeding. (Sec. 3, Rule
26)
DEFERMENT OF COMPLIANCE:
- To avoid the implied admission, the party requested
may have the compliance of the filing and service of
the sworn statement deferred. This deferment may
be effected by the filing with the court objections to
the request for admission.
- Objections to any request for admission shall be
submitted to the court by the party requested within
the period for and prior to the filing of his or her
sworn statement as contemplated in the preceding
paragraph and his or her compliance therewith shall
be deferred until such objections are resolved, which
resolution shall be made as early as practicable.
(Sec. 2, par. 2, Rule 26)
WITHDRAWAL OF ADMISSION:
- Admissions made under Rule 26, whether express or
implied, are not final and irrevocable. 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).
- To effect the withdrawal, the admitting party should
file a motion to be relieved of the effects of his
admission.
RULE 27
PRODUCTION OR INSPECTION OF
DOCUMENTS OR THINGS
PURPOSE OF PRODUCTION OR INSPECTION OF
DOCUMENTS OR THINGS:
● To allow a party to seek an order from the court in
which the action is pending to:
○ Order any party to produce and permit the
inspection and copying or photographing,
by or on behalf of the moving party, of any
any designated documents, papers, books,
accounts, letters, photographs, objects or
tangible things, not privileged, which
constitute or contain evidence material to
any matter involved in the action and which
are in his possession, custody or control;
and
○ Order any party to permit entry upon
designated land or other property in his
possession or control for the purpose of
inspecting, measuring, surveying, or
photographing the property or any
designated relevant object or operation
thereon. (Sec. 1, Rule 27)
LIMITATIONS OF RULE 27:
- Under Rule 27, the documents to be disclosed and
produced should be “not privileged”. (Chan vs.
Chan, GR no. 1791786, July 24, 2013)
FILING OF A MOTION; ORDER OF THE COURT:
- A motion must be filed by the party seeking the
production or inspection of documents and things,
and the motion must show good cause supporting
the same. (Sec. 1, Rule 27)
- The order shall specify the time, place and manner of
making the inspection and taking copies and
photographs, and may prescribe such terms and
conditions as are just. (Sec. 1, Rule 27)
PRIVILEGED DOCUMENTS:
- Rule 27 provides that the documents, papers, books,
accounts, letters, photographs, objects or tangible
things that may be produced and inspected should
not be privileged. The document may be produced
and inspected should not be privileged. The
documents must not be privileged against
disclosure. On the ground of public policy, the rules
providing for production and inspection of books and
papers do not authorize the production or inspection
of privileged matter; that is, books and papers which,
because of their confidential and privileged
character, could not be received in evidence. Such a
condition is in addition to the requisite that the items
be designated and must constitute or contain
evidence material to any matter involved in the action
and which are in the party’s possession, custody or
control. (Sec. 1, Rule 27)
TYPES OF DISQUALIFICATION BY REASON OF
PRIVILEGED COMMUNICATIONS:
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 CIVIL PROCEDURE
Morillo Notes
1. Communication between husband and wife;
2. Communication between attorney and client;
3. Communication between physician and patient;
4. Communication between priest and penitent; and
5. Communication of public officers involving public
interest. (Sec. 24, Rule 130)
6. Editors may not be compelled to disclose the source
of published news (Air Philippines Corp. vs.
Pennswell, 540 SCRA 215);
7. Voters may not be compelled to disclose for whom
they voted (Air Philippines Corp. vs. Pennswell,
Supra);
8. Trade secrets (Air Philippines Corp. vs. Pennswell,
Supra);
9. Information contained in tax census returns (Air
Philippines Corp. vs. Pennswell, Supra); and
10. Bank Deposits (Air Philippines Corp. vs. Pennswell,
Supra).
RULE 28
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
APPLICATION OF RULE 28:
- This mode of discovery applies to an action in which
the mental or physical condition of a party is in
controversy. (Sec. 1, Rule 28)
- Example:
a. An action for annulment of a contract where
the ground relied upon is insanity;
b. A petition for guardianship of a person
alleged to be insane;
c. An action to recover damages for personal
inquiry where the issue is the extent of the
injuries of the plaintiff.
PROCEDURE:
1. A motion must show good cause for the
examination, with notice to the other parties aside
from the party to be examined.
2. The order for examination may be made only on
motion for good cause shown and upon notice to the
party to be examined and to all other parties, and
shall specify the time, place, manner, conditions and
scope of the examination and the person or persons
by whom it is to be made. (Sec. 2, Rule 28). The
motion is to be filed with the court where the action
is pending. (Sec. 1, Rule 28)
3. If requested by the party examined, the party
causing the examination to be made shall deliver to
him or her a copy of a detailed written report of the
examining physician setting out his or her findings
and conclusions. After such request and delivery, the
party causing the examination to be made shall be
entitled upon request to receive from the party
examined a like report of any examination, previously
or thereafter made, of the same mental or physical
condition. (Sec. 3, Rule 28)
4. If the party examined refuses to deliver such report,
the court on motion and notice may make an order
requiring delivery on such terms as are just, and if a
physician fails or refuses to make such a report, the
court may exclude his or her testimony if offered at
the trial. (Sec.3, Rule 28)
74 CIVIL PROCEDURE
WAIVER OF PRIVILEGE:
- By requesting and obtaining a report of the
examination so ordered or by taking the deposition
of the examiner, the party examined waives any
privilege he or she may have in that action or any
other involving the same controversy, regarding the
testimony of every other person who has examined
or may thereafter examine him or her in respect of
the same mental or physical examination. (Sec. 4,
Rule 28)
RULE 29
REFUSAL TO COMPLY WITH THE MODES OF
DISCOVERY
A. REFUSAL TO ANSWER ANY QUESTION UPON
ORAL EXAMINATION
● If a party refuses to answer any question upon oral
examination, the proponent may apply to the proper
court, for an order to compel an answer. The same
procedure may be availed of when a party or witness
refuses to answer any interrogatory submitted
pursuant to the rules on the modes of discovery.
(Sec. 1, Rule 29).
● If the application is granted, the court shall order the
deponent or refusing party to answer the question or
interrogatory. If the refusal is unjustified, the court
may require the refusing party or deponent or the
counsel advising the refusal, or both of them, to pay
the proponent the amount of the reasonable
expenses incurred on obtaining the order, including
attorney’s fees. (Sec. 1, Rule 29)
● Also, a refusal to answer after being directed by the
proper court may be considered a contempt of that
court. (Sec. 2, Rule 29)
● If the application for an order to compel a deponent
to answer is denied because of the absence of a
substantial justification, the court may require the
proponent or the counsel advising the application, or
both of them, to pay to the refusing party or
deponent the amount of the reasonable expenses
incurred in opposing the application, including
attorney’s fees. (Sec. 1, Rule 29)
B. REFUSAL TO ANSWER DESIGNATED OR
PARTICULAR QUESTIONS OR REFUSAL TO
PRODUCE DOCUMENTS OR THINGS OR TO
SUBMIT TO PHYSICAL OR MENTAL
EXAMINATION
● The court may order that the matters regarding
which the questions were asked, or the character or
description of the thing or land, or the contents of the
paper, or the physical or mental condition of the
party, or any other 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 (Sec. 3(a), Rule 29);
● The court may order refusing to allow the
disobedient party to support or oppose designated
 CIVIL PROCEDURE
Morillo Notes
claims or defenses or prohibiting him or her from
introducing in evidence designated documents or
things or items of testimony, or from introducing
evidence of physical or mental condition (Sec. 3(b),
Rule 29);
● The court may order striking out pleadings or parts
thereof, or staying further proceedings until the order
is obeyed, or dismissing the action or proceeding or
any part thereof, or rendering a judgement by default
against the disobedient party (Sec. 3(c), Rule 29);
and
● The court may direct the arrest of any party or agent
of a party for disobeying any of the orders of the
court, except an order to submit to a physical or
mental examination. (Sec. 3(d), Rule 29)
C. REFUSAL TO BE SWORN
● A refusal of a party to be sworn after being directed
by the court may be considered a contempt of that
court. (Sec. 2, Rule 29)
D. REFUSAL TO ADMIT
● If a party after being served with a request under
Rule 26 to admit the genuineness of any document
or the truth of any matter of fact, serves a sworn
denial thereof and if the party requesting the
admissions thereafter proves the genuineness of
such document or the truth of any such matter of
fact, he or she may apply to the court for an order
requiring the other party to pay him or her the
reasonable expenses incurred in making such proof,
including reasonable attorney's fees. (Sec. 4, Rule
29)
● Unless the court finds that there were good reasons
for the denial or that admissions sought were of no
substantial importance, such order shall be issued.
(Sec. 4, Rule 29)
E. FAILURE TO ATTEND DEPOSITIONS OR TO
SERVE ANSWERS TO INTERROGATORIES
● If a party or an officer or managing agent of a party
wilfully fails to appear before the officer who is to
take his or her deposition, after being served with a
proper notice, or fails to serve answers to
interrogatories submitted under Rule 25 after proper
service of such interrogatories, the court on motion
and notice, may strike out all or any part of any
pleading of that party, or dismiss the action or
proceeding or any part thereof, or enter a judgment
by default against that party, and in its discretion,
order him or her to pay reasonable expenses
incurred by the other, including attorney's fees. (Sec.
5, Rule 29)
● The consequences under Sec. 5, Rule 29 will apply if
a party refuses to answer the whole set of written
interrogatories, and not just a particular question.
Where the party, upon whom the written
interrogatories is served, refuses to answer a
particular question in the set of written
interrogatories and despite an order compelling him
to answer the particular question, still refuses to
obey the order, Sec. 3(c) of Rule 29 will apply.
(Zepeda vs. China Banking, 504 SCRA 126)
F. EXPENSES AGAINST THE REPUBLIC OF THE
PHILIPPINES
● Expenses and attorney’s fees are not to be imposed
upon the Republic of the Philippines under this Rule.
(Sec. 6, Rule 29)
RULE 30
TRIAL
NATURE OF TRIAL:
- Trial is the judicial examination and determination of
the issues between the parties to the action. (Black’s
Law Dictionary)
- It is the judicial process of investigating and
determining the legal controversies between or
among the parties.
- Trial ends when judgment begins. (Acosta vs.
People, 5 SCRA 774)
WHEN TRIAL IS UNNECESSARY IN CIVIL CASES:
a. Where the pleadings of the parties tender no issue at
all, a judgment on the pleadings may be directed by
the court (Rule 34);
b. Where from the pleadings, affidavits, depositions and
other papers, there is actually no genuine issue, the
court may render a summary judgment (Rule 35);
c. Where the parties have entered into a compromise or
an amicable settlement either during the pre-trial or
while the trial is in progress (Rule 18);
d. Where the complaint has been dismissed with
prejudice, or when the dismissal has the effect of an
adjudication on the merits (Sec. 3, Rule 17);
e. Where the case falls under the operation of the Ru;es
on Summary Procedure;
f. Where, the parties agree, in writing, upon the facts
involved in the litigation, and submit the case for
judgment on the facts agreed upon, without the
introduction of evidence. However, if there is no
agreement as to all the facts in the case, trial may be
held only as to the disputed facts. (Sec. 6, Rule 30)
Section 1: Schedule of trial
[Note: This is amended by AM No. 19-10-20-SC]
SCHEDULE OF TRIAL:
- The parties shall strictly observe the scheduled
hearings as agreed upon and set forth in the pre-trial
order. (Sec. 1, Rule 30, AM No. 19-10-20-SC)
- The schedule of the trial dates, for both plaintiff and
defendant, shall be continuous and within the
following periods prescribed under this Rule. (Sec. 1,
Rule 30, AM No. 19-10-20-SC)
- The court shall decide and serve copies of its
decision to the parties within a period not exceeding
ninety (90) calendar days from the submission of the
CIVIL PROCEDURE 75
 CIVIL PROCEDURE
Morillo Notes
case for resolution, with or without memoranda.
(Sec. 1 last par., Rule 30, AM No. 19-10-20-SC)
PERIOD OF PLAINTIFF’S INITIAL PRESENTATION OF
EVIDENCE:
- The initial presentation of plaintiff’s evidence shall be
set not later than thirty (30) calendar days after the
termination of the pre-trial conference. (Sec. 1a(i),
Rule 30, AM No. 19-10-20-SC)
- Plaintiff shall be allowed to present its evidence
within a period of three (3) months or ninety (90)
calendar days which shall include the date of the
judicial dispute resolution, if necessary. (Sec. 1a(i),
Rule 30, AM No. 19-10-20-SC)
PERIOD OF DEFENDANT’S INITIAL PRESENTATION OF
EVIDENCE:
- The initial presentation of defendant’s evidence shall
be set not later than thirty (30) calendar days after
the court’s ruling on plaintiff’s formal offer of
evidence. (Sec. 1a(ii), Rule 30, AM No. 19-10-20-SC)
- The defendant shall be allowed to present its
evidence within a period of three (3) months or ninety
(90) calendar days. (Sec. 1a(ii), Rule 30, AM No. 19-
10-20-SC)
PERIOD FOR THE PRESENTATION OF THIRD (FORTH,
ETC.)-PARTY CLAIM, COUNTERCLAIM, OR CROSS-
CLAIM:
- The period for the presentation of evidence on the
third (fourth, etc.) -party claim, counterclaim or
cross-claim shall be determined by the court, the
total of which shall in no case exceed ninety (90)
calendar days. (Sec. 1a(iii), Rule 30, AM No. 19-10-
20-SC)
PERIOD TO PRESENT REBUTTAL EVIDENCE; IF
NECESSARY:
- If deemed necessary, the court shall set the
presentation of the parties’ respective rebuttal
evidence, which shall be completed within a period
of thirty (30) calendar days. (Sec. 1a(iv), Rule 30, AM
No. 19-10-20-SC)
TRIAL DATES MAY BE SHORTENED:
- The trial dates may be shortened depending on the
number of witnesses to be presented, provided that
the presentation of evidence of all parties shall be
terminated within a period of ten (10) months or three
hundred (300) calendar days. (Sec. 1(b), Rule 30, AM
No. 19-10-20-SC)
- If there are no third (fourth, etc.)-party claim,
counterclaim or cross-claim, the presentation of
evidence shall be terminated within a period of six (6)
months or one hundred eighty (180) calendar days.
(Sec. 1(b), Rule 30, AM No. 19-10-20-SC)
Section 2: Adjournments and postponements
ADJOURNMENTS AND POSTPONEMENTS:
- General Rule: A court may adjourn a trial from day
to day, and to any stated time, as the expeditious
and convenient transaction of business may require.
(Sec. 2, Rule 30)
- Exception:
76 CIVIL PROCEDURE
- Court has no power to adjourn a trial for a
period longer than 1 month for each
adjournment, nor more than 3 months in all,
except when authorized in writing by the
Court Administrator. (Sec. 2, Rule 30)
- A motion for postponement should not be
filed on the last hour especially when there
is no reason why it could not have been
presented earlier. (Republic vs.
Sandiganbayan, 301 SCRA 237)
ADDITIONAL NOTES:
- A party asking for postponement has no absolute
right to expect that his motion would be granted.
(Republic vs. Sandiganbayan, Supra)
- The party who caused the postponement is warned
that the presentation of its evidence must still be
terminated on the remaining dates previously agreed
upon. (Sec. 2, Rule 30, AM No. 19-10-20-SC)
POSTPONEMENT OR CONTINUANCE; NOT A MATTER OF
RIGHT:
- As a rule, the grant or denial of a motion for
postponement is addressed to the sound discretion
of the court which should always be predicated on
the consideration that more than the mere
convenience of the courts or of the parties, the ends
of justice and fairness should be served thereby."
Furthermore, this discretion must be exercised
intelligently. (Milwaukee Industries vs. Court of Tax
Appeal, GR no. 173815, November 24, 2010)
Section 3: Requisites of motion to postpone trial for
illness of the party or counsel
[Note: This is Section 4 under the old rules]
POSTPONEMENT ON THE GROUND OF ILLNESS;
REQUISITES:
a. A motion to postponement must be filed;
b. The motion must be supported by an affidavit or
sworn certification that the presence of such party or
counsel at the trial is indispensable and that the
character of his or her illness is such as to render his
or her non-attendance excusable. (Sec. 4, Rule 30,
AM No. 19-10-20-SC)
Section 4: Hearing days and calendar call
[Note: This is a new section under AM No. 19-10-20-SC]
SCHEDULE OF TRIALS:
- Trial shall be held from Monday to Thursday, and
courts shall call the cases at exactly 8:30 a.m. and
2:00 p.m., pursuant to Administrative Circular No. 3-
99. (Sec. 4, Rule 30, AM No. 19-10-20-SC)
SESSION HOURS; ADMINISTRATIVE CIRCULAR NO. 3-99:
- Under Administrative Circular No. 3-99, The session
hours of all Regional Trial Courts, Metropolitan Trial
Courts, Municipal Trial Courts in Cities, Municipal
Trial Courts and Municipal Circuit Trial Courts shall
be from 8:30 A.M. to noon and from 2:00 P.M. to
4:30 P.M. from Monday to Friday. The hours in the
morning shall be devoted to the conduct of trial,
while the hours in the afternoon shall be utilized for
 CIVIL PROCEDURE
Morillo Notes
(1) the conduct of pre-trial conferences; (2) writing of
decisions, resolutions, or orders; or (3) the
continuation of trial on the merits, whenever
rendered necessary, as may be required by the Rules
of Court, statutes, or circular in specified cases.
- However, in multi-sala courts in places where there
are few practicing lawyers, the schedule may be
modified upon request of the Integrated Bar of the
Philippines such that one-half of the branches may
hold their trial in the morning and the other half in the
afternoon.
- Except those requiring immediate action, all motions
should be scheduled for hearing on Friday
afternoons, or if Friday is a non-working day, in the
afternoon of the next business day. The unauthorized
practice of some judges of entertaining motions or
setting them for hearing on any other day or time
must be immediately stopped. (AC No. 3-99)
HEARING DAYS:
- Hearing on motions shall be held on Fridays,
pursuant to Section 8, Rule 15. (Sec. 4, Rule 30, AM
No. 19-10-20-SC)
- Under Sec. 8, Rule 15, Except for motions requiring
immediate action, where the court decides to
conduct hearing on a litigious motion, the same shall
be set on a Friday. (Sec. 8, Rule 15, AM No. 19-10-
20-SC)
CALENDAR CALLS:
- All courts shall ensure the posting of their court
calendars outside their courtrooms at least one (1)
day before the scheduled hearings, pursuant to OCA
Circular No. 250-2015. (Sec. 4, Rule 30, AM No. 19-
10-20-SC)
- All judges are strictly required to ensure the posting
of their court calendars at least 1 before the
scheduled hearings. (OCA Circular No. 250-2015)
Section 5: Order of trial
ORDER OF TRIAL:
a. The plaintiff shall adduce evidence in support of his
complaint;
b. The defendant shall then adduce evidence in support
of his defense, counterclaim, cross-claim and third-
party complaint;
c. The Third-party defendant, if any, shall adduce
evidence of his defense, counterclaim, cross-claim
and fourth-party complaint;
d. The fourth-party, and so forth, if any, shall adduce
evidence of the material facts pleaded by them;
e. The parties against whom any counterclaim or cross-
claim has been pleaded, shall adduce evidence in
support of their defense, in the order to be
prescribed by the court; and
f. Upon admission of the evidence, the case shall be
deemed submitted for decision, unless the court
directs the parties to argue or to submit their
respective memoranda or any other pleadings.
If several defendants or third-party defendants, and
so forth, having separate defenses appear by
different counsel, the court shall determine the
relative order of presentation of their evidence. (Sec.
5, Rule 30)
ADDITIONAL NOTES:
- The above order of trial is only the general rule. The
order of trial is (a) subject to the provisions of Sec.
Rule 31, and (b) unless, for special reasons, the court
otherwise directs.(Sec. 5, Rule 30)
- Therefore, the normal order of trial may be modified if
the court, in furtherance of convenience and to avoid
prejudice, orders a separate trial of any claim, cross-
claim, counterclaim, or third-party complaint. It may
also order, for the same reasons, a separate trial of
any separate issues or of any number of claims,
cross-claims, counterclaims, third-party complaints
or issues. (Sec. 2, Rule 31)
- Under the same rule, the court may, likewise, order a
modification of the order of trial if it so directs for
“special reasons”.
REOPENING THE CASE OF A PARTY FOR THE PURPOSE
OF INTRODUCING FURTHER EVIDENCE:
- The parties may be permitted by the court to adduce
evidence on their original case even after the
presentation of their original evidence, provided:
a. there are good reasons; and
b. such reasons are in furtherance of justice.
(See Sec. 5(f), Rule 30, as basis)
REPUBLIC vs. SANDIGANBAYAN (Fourth Division)
662 SCRA 152
“Under this rule, a party who has the burden of proof must
introduce, at the first instance, all the evidence he relies upon and
such evidence cannot be given piecemeal. The obvious rationale of
the requirement is to avoid injurious surprises to the other party and
the consequent delay in the administration of justice.
A party’s declaration of the completion of the presentation of his
evidence prevents him from introducing further evidence; but
where the evidence is rebuttal in character, whose necessity, for
instance, arose from the shifting of the burden of evidence from
one party to the other; or where the evidence sought to be
presented is in the nature of newly discovered evidence, the party’s
right to introduce further evidence must be recognized. Otherwise,
the aggrieved party may avail of the remedy of certiorari.”
Section 6: Oral offer of exhibits
[Note: This is a new section under AM No. 19-10-20-SC]
ORAL OFFER OF EXHIBITS:
- The offer of evidence, the comment or objection
thereto, and the court ruling shall be made orally in
accordance with Sections 34 to 40 of Rule 132. (Sec.
6, Rule 30, AM No. 19-10-20-SC)
Section 7: Agreed statement of facts
[Note: This is Section 6 under the old rules]
AGREED STATEMENT OF FACTS:
- The parties to any action may agree, in writing, upon
the facts involved in the litigation, and submit the
case for judgment on the facts agreed upon, without
the introduction of evidence. (Sec. 7, Rule 30, AM
No. 19-10-20-SC)
- If the parties agree only on some of the facts in issue,
the trial shall be held as to the disputed facts in such
CIVIL PROCEDURE 77
 CIVIL PROCEDURE
Morillo Notes
order as the court shall prescribe. (Sec. 7, Rule 30,
AM No. 19-10-20-SC)
Section 8: Suspension of actions
SUSPENSION OF ACTIONS:
- The suspension of actions shall be governed by the
provisions of the Civil Code and other laws. (Sec. 8,
Rule 30, AM No. 19-10-20-SC)
Section 9: Judge to receive evidence;
delegation to the clerk of court
RECEPTION OF EVIDENCE:
- The judge of the court where the case is pending
shall personally receive the evidence to be adduced
by the parties.
- Reception of the evidence may, nevertheless, be
delegated to the clerk of court, who is a member of
the bar, in any of the following cases:
a. in default hearings;
b. in ex parte hearings; or
c. in any case by written argument of the
parties.
- The clerk of court shall have no power to rule on
objections to any question or to the admission of
exhibits, which objections shall be resolved by the
court upon submission of his or her report and the
transcripts within ten (10) calendar days from
termination of the hearing. (Sec. 9, Rule 30, AM No.
19-10-20-SC)
RULE 31
CONSOLIDATION OR SEVERANCE
Section 1: Consolidation
CONSOLIDATION:
- It is a procedural device, granted to the court as an
aid in deciding how cases in its docket are to be
tried, so that the business of the court may be
dispatched expeditiously while providing justice to
the parties. (Republic vs. Heirs of Oribello, Jr., 692
SCRA 645)
- When actions involving a common question of law or
fact are pending before the court, it may order a joint
hearing or trial of any or all the matters in issue in the
actions; it may order all the actions consolidated;
and it may make such orders concerning
proceedings therein as may tend to avoid
unnecessary costs or delay. (Sec. 1, Rule 31)
- The use of the word “may '', indicates that
consolidate or severance of cases is not
mandatory and is within the sound
discretion of the court. (Republic vs. Heirs
of Oribello, Supra)
KINDS OF CONSOLIDATION:
1. Quasi-Consolidation - Where all, except one of
several of actions are stayed until one is tried, in
78 CIVIL PROCEDURE
which case the judgment in the one trial is conclusive
as to the others. (This is not actually consolidation)
2. Actual Consolidation - Where several actions are
combined into one, lose their separate identity, and
become a single action in which a single judgment is
rendered. This is illustrated by a situation where
several actions are pending between the same
parties stating claims which might have been set out
originally in one complaint.
3. Consolidation for Trial - Where several actions are
ordered to be tried together, but each retains its
separate character, and requires the entry of a
separate judgment. This type of consolidation does
not merge the suits into a single action, or cause the
parties to one action to be parties to the other.
(Republic vs. Heirs of Oribello, Supra; Neri vs.
Sandiganbayan, GR no. 202243, August 7, 2013)
Section 2: Separate trials
SEPARATE TRIALS OR SEVERANCE:
- The court, in furtherance of convenience or to avoid
prejudice, may order a separate trial of any claim,
cross-claim, counterclaim, or third- party complaint,
or of any separate issue or of any number of claims,
crossclaims, counterclaims, third-party complaints or
issues. (Sec. 2, Rule 31)
RULE 32
TRIAL BY COMMISSIONER
Section 1: Reference by consent
COMMISSIONER:
- As used in these Rules, the word "commissioner"
includes a referee, an auditor and an examiner. (Sec.
1, Rule 32)
REFERENCE BY CONSENT:
- By written consent of both parties, the court may
order any or all of the issues in a case to be referred
to a commissioner to be agreed upon by the parties
or to be appointed by the court. (Sec. 1, Rule 32)
Section 2: Reference ordered on motion
REFERENCE ORDERED ON MOTION: When the parties do
not consent, the court may, upon the application of either or
of its own motion, direct a reference to a commissioner in the
following cases:
a. When the trial of an issue of fact requires the
examination of a long account on either side, in
which case the commissioner may be directed to
hear and report upon the whole issue or any specific
question involved therein;
b. When the taking of an account is necessary for the
information of the court before judgment, or for
carrying a judgment or order into effect;
c. When a question of fact, other than upon the
pleadings, arises upon motion or otherwise, in any
 CIVIL PROCEDURE
Morillo Notes
stage of a case, or for carrying a judgment or order
into effect. (Sec. 2, Rule 32)
Section 3: Order of reference;
Powers of the commissioner
ORDER OF REFERENCE:
- When a reference is made, the clerk shall forthwith
furnish the commissioner with a copy of the order of
reference.
- The order may specify or limit the powers of the
commissioner, and may direct him or her to report
only upon particular issues, or to do or perform
particular acts, or to receive and report evidence
only, and may fix the date for beginning and closing
the hearings and for the filing of his or her report.
(Sec. 3, Rule 32)
POWERS OF THE COMMISSIONER:
- Subject to the specifications and limitations
stated in the order, the commissioner has and
shall exercise the power to regulate the
proceedings in every hearing before him or her
and to do all acts and take all measures
necessary or proper for the efficient
performance of his or her duties under the
order. He or she may issue subpoenas and
subpoenas duces tecum, swear witnesses, and
unless otherwise provided in the order of
reference, he or she may rule upon the
admissibility of evidence. The trial or hearing
before him or her shall proceed in all respects
as it would if held before the court. (Sec. 3, Rule
32)
Section 4: Oath of commissioner
OATH OF COMMISSIONER:
- Before entering upon his or her duties the
commissioner shall be sworn to a faithful and honest
performance thereof. (Sec. 4, Rule 32)
Section 5: Proceedings before the commissioner
PROCEEDINGS BEFORE THE COMMISSIONER:
- Upon receipt of the order of reference unless
otherwise provided therein, the commissioner shall
forthwith set a time and place for the first meeting of
the parties or their counsel to be held within ten (10)
calendar days after the date of the order of reference
and shall notify the parties or their counsel. (Sec. 5,
Rule 32)
Section 6: Failure of parties to appear
before the commissioner
FAILURE OF PARTIES TO APPEAR BEFORE THE
COMMISSIONER:
- If a party fails to appear at the time and place
appointed, the commissioner may proceed ex parte
or, in his or her discretion, adjourn the proceedings
to a future day, giving notice to the absent party or
his or her counsel of the adjournment. (Sec. 6, Rule
32)
Section 7: Refusal of the witness
REFUSAL OF THE WITNESS:
- The refusal of a witness to obey a subpoena issued
by the commissioner or to give evidence before him
or her, shall be deemed a contempt of the court
which appointed the commissioner. (Sec. 7, Rule 32)
Section 8: Commissioner shall avoid delay
COMMISSIONER SHALL AVOID DELAY:
- It is the duty of the commissioner to proceed with all
reasonable diligence. (Sec. 8, Rule 32)
- Either party, on notice to the parties and
commissioner, may apply to the court for an order
requiring the commissioner to expedite the
proceedings and to make his or her report. (Sec. 8,
Rule 32)
Section 9: Report of the commissioner
REPORT OF THE COMMISSIONER:
- Upon the completion of the trial or hearing or
proceeding before the commissioner, he or she shall
file with the court his or her report in writing upon the
matters submitted to him or her by the order of
reference. (Sec. 9, Rule 32)
- When his or her powers are not specified or limited,
he or she shall set forth his or her findings of fact and
conclusions of law in his or her report. (Sec. 9, Rule
32)
- He or she shall attach thereto all exhibits, affidavits,
depositions, papers and the transcript, if any, of the
testimonial evidence presented before him or her.
(Sec. 9, Rule 32)
Section 10: Notice to parties of the filing of report
NOTICE TO PARTIES OF THE FILING OF REPORT:
- Upon the filing of the report, the parties shall be
notified by the clerk, and they shall be allowed ten
(10) calendar days within which to signify grounds of
objections to the findings of the report, if they so
desire. (Sec. 10, Rule 32)
- Objections to the report based upon grounds which
were available to the parties during the proceedings
before the commissioner, other than objections to
the findings and conclusions therein set forth, shall
not be considered by the court unless they were
made before the commissioner. (Sec. 10, Rule 32)
Section 11: Hearing upon report
HEARING UPON REPORT:
- Upon the expiration of the period of ten (10) calendar
days referred to in the preceding section, the report
CIVIL PROCEDURE 79
 CIVIL PROCEDURE
Morillo Notes
shall be set for hearing, after which the court shall
issue an order adopting, modifying, or rejecting the
ILLUSTRATION:
report in whole or in part, or recommitting it with 1. The regular order of trial requires the plaintiff to adduce
instructions, or requiring the parties to present evidence in support of his complaint. During the trial, he
further evidence before the commissioner or the presents all the pieces of evidence available to him
court. (Sec. 11, Rule 32) (object, documentary and testimonial);
2. After the plaintiff has completed the presentation of his
evidence, the defendant shall, then, adduce evidence in
Section 12: Stipulations as to findings support of his defense, counterclaim or third-party
complaint, as the case may be.(See. Sec. 5, Rule 30);

STIPULATIONS AS TO FINDINGS:
- When the parties stipulate that a commissioner's
findings of fact shall be final, only questions of law
shall thereafter be considered. (Sec. 12, Rule 32)
3.
Section 13: Compensation of commissioner
However, the defendant may sincerely feel that the
plaintiff has not lived up to his burden of proving the
material allegations of his claim and, therefore, is not
entitled to the relief sought for in his complaint.
Instead of presenting his evidence, the defendant may
move for dismissal of the case on the ground that, upon
the facts and the law, the plaintiff has shown no right to
relief (Sec. 1, Rule 33)

COMPENSATION OF COMMISSIONER:
- The court shall allow the commissioner such GROUND FOR A DEMURRER TO EVIDENCE:
reasonable compensation as the circumstances of - The defendant may move for dismissal on the ground
the case warrant, to be taxed as costs against the that upon the facts and the law, the plaintiff has
defeated party, or apportioned, as justice requires. shown no right to relief. (Sec. 1, Rule 33)
(Sec. 13, Rule 32)
RES JUDICATA NOT APPROPRIATE GROUND FOR
DEMURRER TO EVIDENCE:
- Res judicata is an inappropriate ground for
RULE 33 sustaining a demurrer to evidence, even as it stands
DEMURRER TO EVIDENCE as a proper ground for motion to dismiss. A demurrer
may be granted if, after the presentation of plaintiff’s
evidence, it appears upon the facts and the law that
the plaintiff has shown no right to relief. In contrast,
Section 1: Demurrer to Evidence the grounds for res judicata present themselves even
before the presentation of evidence, and it should be
DEMURRER TO EVIDENCE IN CIVIL AND CRIMINAL at the stage that the defense of res judicata should
be invoked as a ground for dismissal. (Republic vs.
CASES:
Tuvera, 516 SCRA 113)
DEMURRER TO DEMURRER TO EFFECT OF GRANTING THE DEMURRER TO EVIDENCE:
EVIDENCE IN CIVIL EVIDENCE IN CRIMINAL - If the demurrer is granted, the case shall be
CASES: CASES: dismissed. However, if (on appeal the order granting
the motion is reversed) the defendant loses his right
Leave of court is not It is filed with or without to present evidence. (Sec. 1, Rule 33)
required before its filing. leave of court. - It is not correct for the appellate court reversing the
order granting the demurrer to remand the case to
If granted, the order of the order of dismissal is not the trial court for further proceedings. The appellate
dismissal is appealable. appealable because of the court should, instead of remanding the case, render
constitutional policy against judgment on the basis of the evidence submitted by
double jeopardy. the plaintiff. “A remand is not only frowned upon by
the ROC, it is also logically unnecessary on the basis
If denied, the defendant may The accused may adduce of the facts on record.” (Radiowealth Finance Corp.
proceed to present his his evidence only if the vs. Del Rosario, 335 SCRA 288)
evidence. demurrer is filed with leave
of court. He cannot present
Section 2: Action on demurrer to evidence
his evidence if he filed the
[Note: This is a new section under AM No. 19-10-20-SC]
demurrer without leave of
court.
EFFECT OF DENIAL OF THE DEMURRER TO EVIDENCE.:
The cannot cannot, on its The court can make the - The order denying the demurrer to evidence shall not
own, make a demurrer. demurrer on its own. be subject of an appeal or petition for certiorari,
prohibition or mandamus before judgment. (Sec. 2,
Source: Sec. 1, Rule 33; Sec. 23, Rule 119) Rule 33, AM No. 19-10-20-SC)
- If the demurrer to evidence is denied, he or she shall
STAGE OF THE PROCEEDINGS WHEN DEMURRER TO have the right to present evidence. (Sec. 1, Rule 33)
EVIDENCE IS AVAILED OF: - Where a court denied a demurrer to evidence, it
- A demurrer to evidence is availed of by the should set the date for the reception of the
defendant after the plaintiff has completed the defendant’s evidence in chief. It should not proceed
presentation of his evidence. (Sec. 1, Rule 33)

80 CIVIL PROCEDURE

 CIVIL PROCEDURE
Morillo Notes
to grant the relief demanded by the plaintiff.
(Northwest Airlines, Inc. vs. CA, 284 SCRA 408)
- An order denying the demurrer to the evidence is
interlocutory and, therefore, non-appealable.
However, it can be the subject of a petition for
certiorari in case of grave abuse of discretion or an
oppressive exercise of judicial authority (Katigbak vs.
Sandiganbayan, 405 SCRA 558)
- A party who files a demurrer to evidence that is
subsequently denied in an election case cannot insist
on the right to present evidence. The provision of the
ROC governing demurrer to evidence does not apply
to an election case. (Gementiza vs. Comelec, 353
SCRA 724)
ACTION ON DEMURRER TO EVIDENCE IS SUBJECT TO
RULE 15:
- Under Sec. 2, Rule 33, A demurrer to evidence shall
be subject to the provisions of Rule 15. (Sec. 2, Rule
33, AM No. 19-10-20-SC)
- Rule 15 provides for the rules on Motions, which
provides that a demurrer to evidence must be in
writing and shall state the relief sought to be
obtained and the grounds upon which it is based,
and if required by these Rules or necessary to prove
facts alleged therein, shall be accompanied by
supporting affidavits and other papers.
-
RULE 34
JUDGMENT ON THE PLEADINGS
Section 1: Judgment on the pleadings
NATURE OF JUDGMENT ON THE PLEADINGS:
- Judgment on the pleadings is appropriate when an
answer fails to tender an issue, or otherwise admits
the material allegations of the adverse party’s
pleading.
- As such, it is a judgment that is exclusively based on
the submitted pleadings, without the introduction of
evidence as the factual issue remains
uncontroverted. (GSIS vs. Prudential Guarantee and
Assurance, Inc., GR no. 165585, November 20, 2013)
- The concept of a judgment of pleadings will not
apply when no answer is filed. It will come into
operation when an answer is served and filed but the
same fails to tender an issue or admits the material
allegations of the adverse party’s pleading. (Sec. 1,
Rule 34)
MOTION REQUIRED:
- A judgment on the pleadings cannot be rendered by
the court motu proprio. It can be done only where
there is a prior motion to the effect filed by the
appropriate party. (Sec. 1, Rule 34)
CASES WHERE JUDGMENT ON THE PLEADINGS WILL
NOT APPLY:
a. Actions for the declaration of nullity of a marriage;
b. Actions for annulment of marriage; and
c. Actions for legal separation. (Sec. 1, Rule 34)
Note: In the above cases, the material facts alleged in the
complaint shall always be proved. (Sec. 1, Rule 34)
Section 2: Action on motion for judgment
on the pleadings
[Note: This is a new section under AM No. 19-10-20-SC]
ACTION ON MOTION FOR JUDGMENT ON THE
PLEADINGS:
- The court may motu proprio or on motion render
judgment on the pleadings if it is apparent that the
answer fails to tender an issue, or otherwise admits
the material allegations of the adverse party’s
pleadings. Otherwise, the motion shall be subject to
the provisions of Rule 15 of these Rules. (Sec. 2,
Rule 34, AM No. 19-10-20-SC)
- Any action of the court on a motion for judgment on
the pleadings shall not be subject of an appeal or
petition for certiorari, prohibition or mandamus. (Sec.
2, Rule 34, AM No. 19-10-20-SC)
RULE 35
SUMMARY JUDGMENTS
NATURE OF SUMMARY JUDGMENT:
- This is also called “Accelerated Judgment”.
- A summary judgment is granted to settle
expeditiously a case if, on motion of either party,
there appears from the pleadings, depositions,
admissions, and affidavits that no important issues of
fact are involved, except the amount of damages.
(Ybiernas vs. Tanco-Gabaldon, 650 SCRA 154)
- A summary judgment is proper where, upon the
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 vs. Union Bank, 334 SCRA 443)
MEANING OF GENUINE ISSUE:
- It is an issue of fact which requires the presentation
of evidence as distinguished from a sham, fictitious,
contrived or false claim.
- When the facts, as pleaded, appear uncontested or
undisputed, then there is no real or genuine issue or
question as to the facts, and summary judgment is
called for.
- The party who moves for summary judgment has the
burden of demonstrating clearly the absence of any
genuine issue of fact, or that the issue posed in the
complaint is patently unsubstantial so as not to
constitute a genuine issue for trial. (Phil. Bank of
Communications vs. Go, 642 SCRA 693)
Section 1: Summary judgment for claimant
SUMMARY JUDGMENT FOR CLAIMANT:
- A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a
declaratory relief may, at any time after the pleading
in answer thereto has been served, move with
CIVIL PROCEDURE 81
 CIVIL PROCEDURE
Morillo Notes
supporting affidavits, depositions or admissions for a
summary judgment in his or her favor upon all or any
part thereof. (Sec.1, Rule 35)
Section 2: Summary judgment for defending party
SUMMARY JUDGMENT OF DEFENDING PARTY:
- A party against whom a claim, counterclaim, or
cross-claim is asserted or a declaratory relief is
sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary
judgment in his or her favor as to all or any part
thereof. (Sec. 2, Rule 35)
Section 3: Motions and proceedings thereon
[Note: This is amended by AM No. 19-10-20-SC]
MOTIONS AND PROCEEDINGS THEREON:
- The motion shall cite the supporting affidavits,
depositions or admissions, and the specific law
relied upon. (Sec. 3, Rule 35, AM No. 19-10-20-SC)
- The adverse party may file a comment and serve
opposing affidavits, depositions, or admissions
within a non- extendible period of five (5) calendar
days from receipt of the motion. (Sec. 3, Rule 35, AM
No. 19-10-20-SC)
- Unless the court orders the conduct of a hearing,
judgment sought shall be rendered forthwith if the
pleadings, supporting affidavits, depositions and
admissions on file, show that, except as to the
amount of damages, there is no genuine issue as to
any material fact and that the moving party is entitled
to judgment as a matter of law. (Sec. 3, Rule 35, AM
No. 19-10-20-SC)
- Any action of the court on a motion for summary
judgment shall not be subject of an appeal or petition
for certiorari, prohibition or mandamus. (Sec. 3, Rule
35, AM No. 19-10-20-SC)
Section 4: Case not fully adjudicated on motion
[Note: This is amended by AM No. 19-10-20-SC]
CASE NOT FULLY ADJUDICATED ON MOTION:
- If on motion under this Rule, judgment is not
rendered upon the whole case or for all the reliefs
sought and a trial is necessary, the court may, by
examining the pleadings and the evidence before it
and by interrogating counsel, ascertain what material
facts exist without substantial controversy, including
the extent to which the amount of damages or other
relief is not in controversy, and direct such further
proceedings in the action as are just. (Sec. 4, Rule
35, AM No. 19-10-20-SC)
- The facts so ascertained shall be deemed
established, and the trial shall be conducted on the
controverted facts accordingly. (Sec. 4, Rule 35, AM
No. 19-10-20-SC)
Section 5: Forms of affidavit
and supporting papers
FORMS OF AFFIDAVIT AND SUPPORTING PAPERS:
82 CIVIL PROCEDURE
- Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to
the matters stated therein. (Sec. 5, Rule 35)
- Certified true copies of all papers or parts thereof
referred to in the affidavit shall be attached thereto or
served therewith. (Sec. 5, Rule 35)
Section 6: Affidavits in bad faith
AFFIDAVITS IN BAD FAITH:
- Should it appear to its satisfaction at any time that
any of the affidavits presented pursuant to this Rule
are presented in bad faith, or solely for the purpose
of delay, the court shall forthwith order the offending
party or counsel to pay to the other party the amount
of the reasonable expenses which the filing of the
affidavits caused him or her to incur, including
attorney's fees, it may, after hearing further adjudge
the offending party or counsel guilty of contempt.
(Sec. 6, Rule 35)
RULE 36
JUDGMENTS, FINAL ORDERS
AND ENTRY THEREOF
PRELIMINARY NOTES
ON JUDGMENTS:
DEFINITION OF JUDGMENT:
- It is the final ruling by a court of competent
jurisdiction regarding the rights or other matters
submitted to it in an action or proceeding. (Macahilig
vs. Heirs of Garcia Magalit, 344 SCRA 838)
- “Judgment” is normally synonymous with “Decision”.
(Tung Chin Hui vs. Rodriguez, 340 SCRA 765)
REQUISITES OF VALID JUDGMENT:
a. The court or tribunal must be clothed with authority
to hear and determine the matter before it;
b. The court must have jurisdiction of the parties and
the subject matter;
c. The parties must have been given an opportunity to
adduce evidence in their behalf;
d. The evidence must have been considered by the
tribunal in deciding the case;
e. The judgment must be in writing, personally and
directly prepared by the judge. A verbal judgment is
not esse, therefore, ineffective;
f. 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. (Acosta vs. Comelec, 293
SCRA 578; Corpus vs. Sandiganbayan, 442 SCRA
294; Art. VIII, Sec. 14, 1987 Constitution)
ADDITIONAL NOTES:
- Decisions, no matter how concisely written, must
distinctly and clearly set forth the acts and law upon
which they are based. This rule, however, does not
require that the court shall state in its decision all the
 CIVIL PROCEDURE
Morillo Notes
facts found in the records. (Naguiat vs. NLRC, 269
SCRA 564; Yu Eng Cho vs. Pan American World
Airways, Inc., 328 SCRA 717; People vs. Derpo, 168
SCRA 447)
- A decision need not be a complete recital of the
evidence presented. So long as the factual and legal
basis is distinctly and clearly set forth, the judgment
is valid. (Chan vs. CA, 457 SCRA 502)
- A decision that does not clearly and distinctly state
the facts and the law on which it is based leaves the
parties in the dark as to how it was reached, and is
specially prejudicial to the losing party, who is unable
to pinpoint the possible errors of the court for review
by a higher tribunal. (Miguel vs. JCT Groups, Inc. 453
SCRA 529)
PARTS OF JUDGMENT:
A. RATIO DECIDENDI B. FALLO
The body of the decision The dispositive portion
CONFLICT BETWEEN RATIO DECIDENDI AND FALLO:
- The general rule is that where is a conflict between
the dispositive portion or fallo of the decision and the
body of the decision, the fallo controls because the
Fallo is the final order while the opinion in the body is
merely a statement ordering nothing. However,
where the conclusion from the body of the decision
is so clear that there was a mere mistake in the
dispositive portion, the body of the decision will
prevail. (So vs. Food Fest Land, 642 SCRA 592)
- The Ratio Decidendi is not the part of the judgment
that is subject to execution but the Fallo because it is
the latter which constitutes the judgment of the
court.
- The Fallo should state whether the complaint or
petition is granted or denied, the specific relief
granted, and the costs. (Morales vs. CA, 461 SCRA
34)
INTERLOCUTORY ORDERS:
- “Interlocutory” refers to something intervening
between the commencement and the end of the suit
which decides some point or matter but is not a final
decision of the whole controversy. (Rudecon
Management Corp. vs. Singson, 454 SCRA 612)
- They are those that determine incidental matters that
do not touch on the merits of the case or put an end
to the proceedings. (Silverio, Jr. vs. Filipino Business
Consultants, 466 SCRA 584)
- Interlocutory orders are not decisions or judgments
within the constitutional definition, therefore,
Judgments under Sec. 1 of Rule 36 do not include
resolutions which are interlocutory orders. (Amargo
vs. CA, 53 SCRA 64)
QUESTIONING INTERLOCUTORY ORDERS:
- Proper remedy to question an improvident
interlocutory order is through a petition for certiorari
under Rule 65, not Rule 45. (Silverio, Jr. vs. Filipino
Business Consultants, supra)
- One cannot appeal from an interlocutory order,
otherwise, it may result in multiplicity of appeals in a
single action, thus, prolonging the action. (Rudecon
Management vs. Singson, Supra)
MEMORANDUM DECISIONS:
- This is one rendered by an appellate court and
incorporates by reference the findings of facts and
conclusions of law contained in the decision or order
under review. Francisco vs. Permskul, 173 SCRA
324)
- Memorandum decisions are authorized by BP. 129
and Rule 51 of the ROC. Both provide: “Every
decision or final resolution of a court in appealed
cases shall clearly and distinctly state the findings of
facts and the conclusions of law on which it is based,
which may be contained in the decision or final
resolution itself, or adopted by reference from those
set forth in the decision, order, or resolution
appealed from”. (Sec. 40, BP 129; Sec. 5, Rule 51,
ROC)
PENNED JUDGMENTS:
A. JUDGMENT PENNED BY A JUDGE WHO DID NOT
HEAR THE EVIDENCE:
- In such an event, another judge has to continue and
finish the trial. The succeeding judge can examine
and evaluate the evidence already presented by the
simple expedient of going over the transcripts of the
testimony of the witnesses in the same manner as
appellate courts review the evidence on record.
(People vs. Tuvera, 319 SCRA 515)
- The validity of a judgment is not rendered erroneous
solely because the judge who heard the case was
not the same judge who rendered the decision. In
fact, it is not necessary for the validity of a judgment
that the judge who penned the decision should
actually hear the case in its entirety, for he can
merely rely on the transcribed stenographic notes
taken during the trial as the basis for his decision.
(Kummer vs. People, GR no. 174461, September 11,
2013)
B. JUDGMENT PENNED BY A JUDGE WHO HAD
CEASED TO BE A JUDGE:
- A decision penned by a judge after his retirement
cannot be validly promulgated and cannot acquire a
binding effect. In like manner, a decision penned by
a judge during his incumbency cannot be validly
promulgated after his retirement. When a judge
retires, all his authority to decide any case, ie., to
write, sign and promulgate the decision has also
“retired” with him. (Nazareno vs. CA, 378 SCRA 28)
- There is a presumption that the RTC judge, in
resolving the case and drafting his or her decision,
reviewed, evaluated, and weighed all the evidence on
record. That the said RTC judge is not the same
judge who heard the case and received the evidence
is of little consequence when the records and
transcripts of stenographic notes are complete and
available for consideration by the former. (Citibank
vs. Sabeniano, 504 SCRA 378)
C. JUDGMENT PENNED BY A JUDGE WHO WAS
TRANSFERRED:
- A judge who was permanently transferred to another
court of equal jurisdiction, before the case heard by
him was decided, may validly prepare and sign his
decision on the said case and send the same to the
CIVIL PROCEDURE 83
 CIVIL PROCEDURE
Morillo Notes
court where he was originally assigned. (Valentin vs.
Sta. Maria, 55 SCRA 40)
- The judge who pens the decision of a case heard by
him before he was assigned or transferred to another
district or branch of the court of equal jurisdiction is
considered an incumbent Judge. (Marchadesch vs.
Vda. De Yepes, 442 SCRA 254)
DOCTRINE OF STARE DECISIS
(Stare Decisis Et Non Quieta Movere):
NATURE OF STARE DECISIS:
- This principle holds that a point of law, once
established by the Supreme Court, will generally be
followed by the same court and by all courts of lower
rank in subsequent cases involving a similar legal
issue. This proceeds from the legal principle that, in
absence of powerful countervailing considerations,
like cases ought to be decided alike. (Cabigon vs.
Pepsi-Cola Products, Philippines., 541 SCRA 149)
- In simpler terms, the principle of Stare Decisis
enjoins adherence to judicial precedents and
requires courts to follow the rule established in a final
decision of the Supreme Court. That decision
becomes a judicial precedent to be followed in
subsequent cases by all courts of the land. It based
on the principle that once a question of law has been
examined and decided, it should be deemed settled
and closed to further argument. (Ting vs. Velez-Ting,
582 SCRA 694)
BASIS OF STARE DECISIS:
- The rule of stare decisis is entrenched in Art. 8 of the
Civil Code; “Judicial decisions applying or
interpreting the laws of the Constitution shall form
part of the legal system of the Philippines.”
PRO HAC VICE RULINGS:
- “Pro hac vice” a latin term which refers to one
rendered ‘for this particular case”. A ruling expressly
qualified as such cannot be relied upon as a
precedent to govern other cases. (Tajeda vs. People,
691 SCRA 252)
OBITER DICTUM:
- It is an opinion expressed by the court, which is not
necessary to the decision of the case before it. It is
neither enforceable as a relief nor a source of a
judicially-actionable claim. (Delta Motors vs. CA, 276
SCRA 212; Republic vs. Nolasco, 457 SCRA 400)
DOCTRINE OF IMMUTABILITY OF JUDGMENTS OR
CONCLUSIVENESS OF JUDGMENTS:
- This doctrine provides that a decision that has
acquired finality becomes immutable and
unalterable, and may no longer be modified in any
respect, even if the modification is meant to correct
erroneous conclusions of fact and law, and whether
it be made by the court that rendered it or by the
Highest Court of the land. Any act which violates this
principle must immediately be struck down. (Arra
Realty vs. Paces International, 636 SCRA 339)
EXCEPTIONS TO THE RULE ON IMMUTABILITY OF
JUDGMENTS:
84 CIVIL PROCEDURE
a. The correction of clerical errors (Filipinas Palmoil vs.
Dejapa, 641 SCRA 572);
b. The “Nunc pro tunc” which cause no prejudice to
any party and void judgments. (Briones-Vasquez vs.
CA, 450 SCRA 482);
c. Whenever circumstances transpire after the finality of
the decision rendering its execution unjust and
inequitable (Apo Fruits v. Landbank, 647 SCRA 207;
d. In cases of special and exceptional nature as when
facts and circumstances transpire which render the
judgment’s execution impossible or unjust, when
necessary in the interest of justice to direct its
modification to harmonize the deposition with
prevailing circumstances. (Industrial Timber Corp. vs.
Ababon, 480 scra 171);
e. In case of void judgments (Apo Fruits vs. Landbank,
Supra);
f. When there is a strong showing that a grave injustice
would result from the application of the ROC
(Almuete vs. People, 693 SCRA 167);
g. When there are grounds for annulment of the
judgment or petition for relief. (Gochan vs. Mancao,
GR no. 182314, November 13, 2013);
h. When it would involve the sacrifice of justice for
technicality (Heirs of Maura So vs. Obliosca, 542
SCRA 406).
TWO-FOLD PURPOSE OF THE DOCTRINE OF
IMMUTABILITY OF JUDGMENTS:
1. To avoid delay in the administration of justice and,
therefore, procedurally, to make orderly the
discharge of judicial business; and
2. To put an end to judicial controversies, at the risk of
occasional errors, which is precisely why courts
exist. Controversies cannot drag on indefinitely. The
rights and obligations of every litigant must not hang
in suspense for an indefinite period of time. This
doctrine is not a mere technicality to be easily
brushed aside, but a matter of public policy as well
as a time-honored principle of procedural law.
(Marcos vs. Pamintuan, 639 SCRA 658)
REMEDIES AGAINST A FINAL AND EXECUTORY
DECISION:
- A final and executory decision can only be annulled
by a petition to annul a judgment on the ground of
extrinsic fraud and lack of jurisdiction, or by a
petition for relief from a final order or judgment under
Rule 38, ROC, it can no longer be disturbed, altered,
or modified in any respect except to correct clerical
errors or to make nunc pro tunc entries. Nothing
further can be done to a final judgment except to
execute it. (Salting vs. Velez; Gochan vs. Mancao,
GR no. 182314, November 13, 2013)
DOCTRINE OF “LAW OF THE CASE”:
- “Law of the case” is defined as the opinion delivered
on a former appeal. (Sps. Sy vs. Young, GR no.
169214, June 19, 2013)
- This principle provides that whatever is once
irrevocably established as the controlling legal rule or
decision between the same parties in the case,
whether correct on general principles or not, so long
as the facts on which such decision was predicated
continue to be the facts of the case before the court.
 CIVIL PROCEDURE
Morillo Notes
(RCPI vs. CA, 488 SCRA 306; Samson vs. Cabanas,
461 SCRA 545)
CONDITIONAL JUDGMENT:
- This refers when the effectivity of which depends
upon the occurrence or the non-occurrence of an
event. Such a judgment is generally void because of
the absence of a disposition. (Cu-Unjieng vs.
Mabalacat Sugar, 70 Phil. 384)
JUDGMENT “SIN PERJUICIO”:
- A judgment sin perjuicio is traditionally understood to
be a brief judgment containing only the dispositive
portion, without prejudice to the making of a more
extensive discussion of the findings of facts and law
to support it. → This is not actually a final decision,
should be avoided and should not be looked with
favor. (Director of Lands vs. Sanz, 45 Phil. 117)
JUDGMENT “NUNC PRO TUNC”:
- literally means “now for then”
- It is a judgment intended to enter into the record acts
which had already been done, but which did not
appear in the record. (Lichauco vs. Tan Pho, 51 Phil.
682)
JUDGMENT UPON A COMPROMISE:
- This is a judgment rendered by the court on the basis
of a compromise agreement entered into between
the parties to the action. (Diamond Builders vs.
Country Bankers, 540 SCRA 194)
- A compromise agreement is defined as “A contract
whereby the parties, by making reciprocal
concessions, avoid litigation or put an end to one
already commenced.” A compromise is a form of
amicable settlement that is not only allowed but also
encouraged in civil cases. (Art. 2028, NCC; Harold
vs. Aliba, 534 SCRA 178)
- The agreement is perfected by mere consent,
manifested by the meeting of the offer and
acceptance of the parties. Likewise, it must not be
contrary to law, publicorder, public policy, morals or
good customs. (Villauz vs. Ligon, 468 SCRA 486;
Catedrilla vs. Lauron, GR no. 179011, April 15, 2013)
JUDGMENT UPON A CONFESSION (COGNOVIT
ACTIONEM):
- This is a judgment rendered by the court when a
party expressly agrees to the other party’s claim or
acknowledges the validity of the claim against. him.
(Riano (2014), Civil Procedure Vol.1, p. 609)
Section 1: Rendition of judgments and final orders
MEANING OF RENDITION OF JUDGMENT:
- Rendition of a judgment is the filing of the same with
the clerk of court. It is not the pronouncement of the
judgment in open court that constitutes the rendition.
(Ago vs. CA, 6 SCRA 530; Castro vs. Malazo, 99
SCRA 164)
CONCEPT AND NATURE OF “JUDGMENT ON THE
MERITS”:
- A judgment is “on the merits” when it amounts to a
legal declaration of the respective rights and duties
of the parties, based upon the disclosed facts.
- What appears to be essential to a judgment on the
merits is that it be a reasoned decision, which clearly
states the facts and the law on which it is based.
(Luzon Development Bank vs. Conquilla, 470 SCRA
533)
FORM AND CONTENTS OF A JUDGMENT OR FINAL
ORDER DETERMINING THE MERITS OF THE CASE:
a. The judgment or final order shall be in writing
personally and directly prepared by the judge;
b. It must state clearly and distinctly the facts and the
law on which it is based,
c. It must be signed by him (the judge); and
d. It must be filed with the clerk of court. (Sec. 1, Rule
36)
PERIOD WITHIN WHICH TO RENDER A DECISION:
- All cases filed must be decided or resolved by the
SC within 24 months from the date of their
submission for decision, and unless reduced by the
SC, within 12 months for all lower collegiate courts
and 3 months for all other lower courts. (Art. VIII,
Sec. 15, 1987 Constitution)
- A case is deemed submitted for resolution upon the
filing of the last pleading, brief or memorandum
required by the ROC or by the Court. (Supra)
EXTENSION OF THE PERIOD TO RENDER A DECISION:
- An extension of the period to render a decision may
be set by the SC within which to decide a case upon
request by the judge concerned on account of heavy
caseload or by other reasonable excuse. Without an
extension granted by the court, a delay in the
disposition of cases is tantamount to gross
inefficiency on the part of the judge. (Arap vs.
Mustafa, 379 SCRA 1)
WHEN A JUDGMENT BECOMES FINAL:
- The term “final”, when used to describe a judgment
may be used in two senses. In the first, it refers to a
judgment that disposes of a case in a manner that
leaves nothing more to be done by the court with
respect thereto. In this sense, a final judgment is
distinguished from an interlocutory order which does
not finally terminate or dispose of the case. (Rudecon
Management vs. Singson, 454 SCRA 612)
- Under Sec.1, Rule 39, the word “final” may refer to a
judgment that is no longer appealable and is already
capable of being executed because the period for
appeal of if there has been an appeal, it has already
been resolved by a highest possible tribunal. In this
sense, the judgment is commonly referred to as one
that is “final and executory”.
Section 2: Entry of judgments and final order
CONCEPT OF ENTRY OF JUDGMENT:
- The entry of judgment refers to the physical act
performed by the clerk of court in entering the
dispositive portion of the judgment in the book of
entries of judgment after the same has become final
and executory. (Riano (2014), Civil Procedure, Vol. 1,
p. 615)
CIVIL PROCEDURE 85
 CIVIL PROCEDURE
Morillo Notes
ENTRY OF JUDGMENT OR FINAL ORDER; DATE
THEREOF:
- If no appeal or motion for new trial or reconsideration
is filed within the time provided in these Rules, the
judgment or final order shall forthwith be entered by
the clerk in the book of entries of judgments. (Sec. 2,
Rule 36)
- The date of finality of the judgment or final order shall
be deemed to be the date of its entry (in the book of
entries of judgment). (Sec. 2, Rule 36)
CONTENTS OF THE RECORD (BOOK OF ENTRIES OF
JUDGMENT):
- The record shall contain the dispositive portion of the
judgment or final order and shall be signed by the
clerk of court, with a certificate by said clerk that the
judgment has already become moot and executory.
(Sec. 2, Rule 36)
separate judgment (let us say) on the cross-claim or
the counterclaim. The judgment will terminate the
action with respect to that claim and the action shall
proceed as to the remaining claims. Despite the
rendition of a separate judgment, the court may stay
the execution of the separate judgment until the
rendition of a judgment on all the other claims. (Sec.
5, Rule 36)
Section 6: Judgment against entity without juridical
personality
JUDGMENT AGAINST ENTITY WITHOUT JURIDICAL
PERSONALITY:
- When judgment is rendered against two or more
persons sued as an entity without juridical
personality, the judgment shall set out their individual
or proper names, if known. (Sec. 6, Rule 36)

Section 3: Judgement for or against one

or more of several parties

RULE 37
JUDGMENT FOR OR AGAINST ONE OR MORE OF
NEW TRIAL OR RECONSIDERATION
SEVERAL PARTIES:
- Judgment may be given for or against one or more of
several plaintiffs and for or against one or more of
several defendants. When justice so demands, the MATRIX OF COMPARISON:
court may require the parties on each side to file
adversary pleadings as between themselves and RECONSIDERATION NEW TRIAL
determine their ultimate rights and obligations. (Sec.
3, Rule 36) As to Nature or Objective:

Section 4: Several judgment
SEVERAL JUDGMENT:
- A several judgment is one rendered by a court
against one or more defendants, but not against all,
leaving the action to proceed against the others.
(Sec. 4, Rule 36)
- A several judgment is proper when the liability of
each party is clearly separable and distinct from that
of his co-parties, such that the claims against each
of them could have been the subject of separate
suits, and judgment for or against one of them will
not necessarily affect the other. (Fernando vs.
Santamaria, 446 SCRA 136)
- Debtors under a joint obligation have distinct and
separable interests. In a joint obligation, the credit or
debt is divided into as many equal shares as there
are creditors and debtors, the credits or debts being
distinct from one another. (Art. 1208, NCC)
One that is directed against a A remedy that seeks to temper
judgment or a final order. the severity of a judgment or
prevent a failure of justice.
When to file?
Within the period for taking an appeal either by:
(a) “Notice of Appeal” → within 15 days after notice to the
applicant of the judgment or final order appealed from.
(Sec. 2, Rule 40; Sec. 3, Rule 40; Sec. 2, Rule 45);
(b) “Record on Appeal” → within 30 days from notice of the
judgment or final order. (Sec. 2, Rule 40; Sec. 3, Rule
41). [Note: This is required only in special proceedings
and in other cases of multiple or separate appeals. (Sec.
3, Rule 40)]
Effect of the filing of motion on
the period to appeal:
Interrupts the period of appeal

Section 5: Separate judgment Grounds (What to allege):

SEPARATE JUDGMENT:
a. That the damages
- This kind of judgment presupposes that there are
awarded are excessive;
several claims for relief presented in a single action. b. The the evidence is
- Aside from the original complaint for instance, the insufficient to justify the
defendant may interposed a counterclaim, cross- decision or final order;or
claim, or third-party complaint. The court may, after c. That the decision or final
determining the issues relative to a claim and order is contrary to law.
considering other circumstances, may render
a. Fraud, Accident, Mistake
or Excusable negligence
which ordinary prudence
could not have guarded
against and, by reason of
which, such aggrieved
party has probably been
impaired in his rights; or

86 CIVIL PROCEDURE

 CIVIL PROCEDURE
Morillo Notes
b. Newly-discovered
evidence, which he could
not, with reasonable
diligence, have diligence
and produced at the trial ,
and which, if presented,
would probably alter the
results.
Period of resolving the motion:
Within 30 days from the time it is submitted for resolution.
Remedy when the motion is denied:
Appeal from the judgment or Appeal from the judgment or
final order itself subject of the final order.
motion for reconsideration.
Effect of granting such motion:
The court may amend such The original judgment or final
judgment or final order order shall be vacated, and the
accordingly, which will be in the action shall stand for trial de
nature of a new judgment which novo. The recorded evidence
supersedes the original taken upon the former trial shall
judgment. be used at the new trial without
retaking the same if the
evidence is material and
competent.
- A motion for reconsideration of a judgment or final
order is filed within the period for taking an appeal.
(Sec. 1, Rule 37)
- No motion for extension of time to file a motion for
reconsideration shall be allowed. (Sec. 2, Rule 40;
Sec. 3, Rule 41)
- The period for appeal depends on whether the
appeal is (a) by mere notice of appeal or (b) by record
on appeal,which begins to run upon receipt of notice
of the decision or final order appealed from. Such
periods begin upon receipt of notice by the counsel
of record, which is considered notice to the parties.
Service of judgment on the party represented by
counsel is not considered the official notice and
receipt of the judgment.
- It has been held that notice upon the parties’
counsels of record is tantamount to service upon the
parties themselves, but service upon the parties
themselves is not considered service upon their
lawyers. (Delos Santos vs. Elizalde, 514 SCRA 14)
- As a rule, notice to the client, and not to his counsel
of record is not notice in law unless, for instance,
when the court or tribunal orders service upon the
party, or when the technical defect in the manner of
notice is waived. (Heirs of Benjamin Mendoza vs. CA,
565 SCRA 506)
STATUS OF MOTION FOR RECONSIDERATION AND FOR
NEW TRIAL IN CERTAIN CASES:
Motion for Motion for New
Reconsideration Trial

Source: Rule 37; Rule 40, Rule 41; Ybiernas vs. Tanco- Summary
Gabaldon, GR no. 178925, June 1, 2011) PROHIBITED PROHIBITED
Procedure
MOTION MOTION
Cases
Section 1: Grounds of and period for filing motion for
new trial or reconsideration Small Claims PROHIBITED PROHIBITED
Cases MOTION MOTION

GROUNDS FOR A MOTION A FOR RECONSIDERATION: Environmental

1. That the damages awarded are excessive; ALLOWED ALLOWED
Cases
2. The the evidence is insufficient to justify the decision
or final order;or Source: Sec. 19(c), IV, 1991 Rules on Summary Procedure;
3. That the decision or final order is contrary to law. Sec. 14(c), AM No. 08-8-7-SC; Sec. 1, Rule 2, Part. II, Rules
(Sec. 1, Rule 37) of Procedure for Environmental Cases)

NATURE OF A NEW TRIAL: Section 2: Contents of motion for

- A new trial is a remedy that seeks to temper the
severity of a judgment or prevent a failure of justice.
The grant of a new trial is, generally, addressed to
the sound discretion of the court which cannot be
interfered with unless a clear abuse thereof is shown.
(Ybiernas vs. Tanco-Gabaldon, Supra)
GROUNDS FOR A MOTION FOR NEW TRIAL:
a. Fraud, Accident, Mistake or Excusable negligence
which ordinary prudence could not have guarded
against and, by reason of which, such aggrieved
party has probably been impaired in his rights; or
b. Newly-discovered evidence, which he could not, with
reasonable diligence, have diligence and produced at
the trial , and which, if presented, would probably
alter the results. (Sec. 1, Rule 37)
PERIOD FOR FILING A MOTION FOR A MOTION FOR
RECONSIDERATION AND FOR NEW TRIAL:
new trial or reconsideration
FORMS OF MOTION FOR RECONSIDERATION OR NEW
TRIAL:
- The motion shall be made in writing stating the
ground or grounds therefor, a written notice of which
shall be served by the movant on the adverse party.
(Sec. 2, Rule 37)
CONTENTS OF THE MOTION FOR RECONSIDERATION:
- A motion for reconsideration shall point out
specifically the findings or conclusions of the
judgment or final order which are not supported by
evidence or which are contrary to law, making
express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be
contrary to such findings or conclusions. (Sec. 2,
Rule 37)

CIVIL PROCEDURE 87

 CIVIL PROCEDURE
Morillo Notes
CONTENTS OF THE MOTION FOR NEW TRIAL:
- A motion for new trial for the cause mentioned in
paragraph (a) of Sec. 1, Rule 37, shall be supported
by affidavits of merits which may be rebutted by
affidavits. (Sec. 2, Rule 37)
- A motion for the cause mentioned in paragraph (b) of
Sec. 1, Rule 37, shall be supported by affidavits of
the witnesses by whom such evidence is expected to
be given, or by duly authenticated documents which
are proposed to be introduced in evidence. (Sec. 2,
Rule 37)
AFFIDAVIT OF MERIT:
- The facts constituting the movant’s good and
substantial defense, which may be proven if the
petition were granted, must be shown in the affidavit
which should accompany the motion for a new trial.
An affidavit of merit should state facts, and not mere
opinion or conclusion of law. (Uy vs. First Metro
Steel, 503 SCRA 704)
- An affidavit of merit is required in a motion for new
trial founded on fraud, accident, mistake or
excusable negligence. (Uy vs. First Metro Steel,
Supra)
REQUISITES FOR NEW-DISCOVERY EVIDENCE GROUND:
1. That the evidence was discovered after trial;
2. The such evidence could not have been discovered
and produced at the trial even with the exercise of
reasonable diligence;
3. That it is material, not merely cumulative,
corroborative, or impeaching; and
4. The evidence is of such weight that it would probably
change the judgment, if admitted. (Ybiernas vs.
Tanco-Gabaldon, Supra)
EFFECT OF NON-COMPLIANCE WITH THE
REQUIREMENT UNDER SECTION 2, RULE 37:
- Non compliance of the requirement under Sec. 2,
Rule 37, would reduce the motion to a mere pro-
forma motion. (Sec. 2, Rule 37)
PRO FORMA MOTION:
- It is one which does not satisfy the requirements of
the rules and will be treated as a motion intended to
delay the proceedings. (Marikina Development Corp.
vs. Flojo, 251 SCRA 87)
- A pro forma motion for new trial or reconsideration
shall not toll the reglementary period of appeal. (Sec.
2, Rule 37)
Section 3: Action upon motion for
new trial or reconsideration
EFFECT OF GRANTING A MOTION FOR
RECONSIDERATION:
- If the court grants the motion, ie., it finds that
excessive damages have been awarded or that the
judgment or final order is contrary to the evidence or
law, it may amend such judgment or final
accordingly. (Sec. 3, Rule 37)
- The amended judgment is in the nature of a new
judgment which supersedes the original judgment. It
is not a mere supplemental decision which does not
88 CIVIL PROCEDURE
supplant the original but only serves to add
something to it. (Esquivel vs. Alegre, 172 SCRA 315)
Section 4: Resolution of motion
RESOLUTION OF MOTION:
- A motion for new trial or reconsideration shall be
resolved within thirty (30) days from the time it is
submitted for resolution. (Sec. 4, Rule 37)
Section 5: Second motion for new trial
THE “SINGLE MOTION” RULE:
- A party shall not be allowed to file a second motion
for reconsideration of a judgment or a final order. The
rule states: “No party shall be allowed a second
motion for reconsideration of a judgment or final
order.” (Sec. 5, Rule 37)
- Note: The prohibition on a second motion applied
only when the motion is directed against a judgment
of final order.
- This rule does not apply to a motion for
reconsideration of an interlocutory order.
SECOND MOTION FOR NEW TRIAL:
- While a second motion for reconsideration is not
allowed, a second motion for a new trial is authorized
by the ROC. A motion for new trial shall include all
grounds then available. Those not so included are
deemed waived. However, when a ground for a new
trial was not existing or available when the first
motion was made, a second motion for a new trial
may be filed within the period allowed but excluding
the time during which the first motion had been
pending. (Sec. 5, Rule 37)
Section 6: Effect of granting of
motion for new trial
EFFECT OF GRANTING OF MOTION FOR NEW TRIAL:
- If a new trial is granted in accordance with the
provisions of this Rules the original judgment or final
order shall be vacated, and the action shall stand for
trial de novo; but the recorded evidence taken upon
the former trial, insofar as the same is material and
competent to establish the issues, shall be used at
the new trial without retaking the same. (Sec. 6, Rule
37)
Section 7: Partial new trial or reconsideration
PARTIAL NEW TRIAL OR RECONSIDERATION:
- If the grounds for a motion under this Rule appear to
the court to affect the issues as to only a part, or less
than an of the matter in controversy, or only one, or
less than all, of the parties to it, the court may order
a new trial or grant reconsideration as to such issues
 CIVIL PROCEDURE
Morillo Notes
if severable without interfering with the judgment or
final order upon the rest. (Sec. 7, Rule 37)
Section 8: Effect of order for partial new trial
EFFECT OF ORDER FOR PARTIAL NEW TRIAL:
- When less than all of the issues are ordered retried,
the court may either enter a judgment or final order
as to the rest, or stay the enforcement of such
judgment or final order until after the new trial. (Sec.
8, Rule 37)
Section 9: Remedy against order denying a motion for
new trial or reconsideration
REMEDY AGAINST ORDER DENYING A MOTION FOR
NEW TRIAL OR RECONSIDERATION:
- An order denying a motion for new trial or
reconsideration is not appealed, the remedy being an
appeal from the judgment or final order. (Sec. 9, Rule
37)
RULE 38
RELIEF FROM JUDGMENTS, ORDERS OR OTHER
PROCEEDINGS
Section 1: Petition for relief from judgment,
order, or other proceedings
NATURE OF THE PETITION FOR RELIEF FROM
JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS:
- It is a legal remedy whereby a party seeks to set
aside a judgment rendered against him by a court
whenever he was unjustly deprived of a hearing or
was prevented from taking an appeal because of
fraud, accident, mistake or excusable neglect.
(Quelnan vs. VHF Philippines, 470 SCRA 73)
- It is an equitable remedy that is allowed only in
exceptional cases when there is no other remedy
available to him. Other remedies referred are (a) a
motion for new trial; or (b) appeal from an adverse
decision of the trial court. (Trust International Paper
vs. Pelaez, 499 SCRA 552)
GROUNDS FOR A PETITION FOR RELIEF; PROPER
COURT:
a. When a judgment or final order is entered, or any
other proceeding is thereafter taken against the
petitioner in any court through fraud, accident,
mistake, or excusable negligence (Sec. 1, Rule 38);
or
b. When the petitioner has been prevented from taking
an appeal by fraud, accident, mistake, or excusable
negligence. (Sec. 2, Rule 38)
ADDITIONAL NOTES:
- Under letter “a” (above), the petition shall be filed
with such court and in the same case (not in another
or higher court). The petition shall pray that the
judgment, order or proceeding be set aside. (Sec. 1,
Rule 38).
- In letter “b” (above), the petition shall also be filed
with such court and in the same case (not in another
or higher court) but prayer this time is that the appeal
be given due course. (Sec. 2, Rule 38)
- Under the ROC, petitions for relief from a judgment,
final order or other proceeding rendered or taken
should be filed with and resolved by the court in the
same case from which the petition arose. Therefore,
a petition for relief from a judgment, final order or
proceeding involved in a case tried by a MTC shall
be filed with and decided by the same court in the
same case, or in the RTC if the case was decided by
it. (Afdal vs. Carlos, 636 SCRA 389)
CONCEPT OF EXTRINSIC FRAUD:
- It is referred to as “that fraud which the prevailing
party caused to prevent the losing party from being
heard on his action or defense. Such fraud concerns
not the judgment itself but the manner in which it
was obtained. (AFP Mutual Benefit Association vs.
RTC Marikina, 642 SCRA 720)
- For example, the petition of a defending party would
be justified where the plaintiff deliberately caused
with the process server’s connivance the service of
summons on defendant at the wrong address and,
therefore, succeeded in getting a judgment by
default against him.” (AFP Mutual Benefit Association
vs. RTC Marikina, 642 SCRA 720)
PETITION IS AVAILABLE ONLY TO THE PARTIES:
- A petition for relief from judgment, together with a
motion for new trial and a motion for reconsideration,
are remedies available only to parties in the
proceedings where the assailed judgment is
rendered. In fact, it has been held that a person, who
was never a party to the case, or even summoned to
appear therein, cannot avail of a petition for relief
from judgment. (Alaban vs. CA, 470 SCRA 697)
PETITION IS AVAILABLE TO PROCEEDINGS AFTER THE
JUDGMENT:
- A petition for relief is available not only against a
judgment or final order. Under Sec. 1, Rule 38, it is
also available when “any other proceeding is
thereafter taken against a party in any court through
fraud, accident, mistake, or excusable negligence.”
- Thus, it was held that a petition for relief is also
applicable to a proceeding taken after the entry of
judgment or final order such as an order of
execution. Rule 38 does not only refer to judgments
but also to orders, or any other proceedings.
(Cayetano vs. Ceguerra, 13 SCRA 73)
Section 2: Petition for relief from denial of appeal
PETITION FOR RELIEF FROM DENIAL OF APPEAL:
- When a judgment or final order is rendered by any
court in a case, and a party thereto, by fraud,
accident, mistake, or excusable negligence, has
been prevented from taking an appeal, he may file a
petition in such court and in the same case praying
that the appeal be given due course. (Sec. 2, Rule
38)
CIVIL PROCEDURE 89
 CIVIL PROCEDURE
Morillo Notes
Section 3: Time for filing petition;
contents and certification
WHEN TO FILE THE PETITION:
- The petition shall be filed within 60 days after the
petitioner learns of the judgment, final order or
proceeding and not more than 6 months after such
judgment or final order was entered, or such
proceeding was taken (Sec. 3, Rule 38)
- Both periods are not extendable and never should be
interrupted. (Quelnan vs. VHF Philippines, 470 SCRA
73)
FORM OF THE PETITION; AFFIDAVIT OF MERIT:
- The petition must be verified and accompanied with
affidavits showing fraud, accident, mistake or
excusable negligence relied upon, and the facts
constituting the petitioner’s good and substantial
cause of action or defense, as the case may be
(Sec.3, Rule 38)
Section 4: Order to file an answer
ORDER TO FILE AN ANSWER:
- If the petition is sufficient in form and substance to
justify relief, the court in which it is filed, shall issue
an order requiring the adverse parties to answer the
same within fifteen (15) days from the receipt thereof.
The order shall be served in such manner as the
court may direct, together with copies of the petition
and the accompanying affidavits. (Sec. 4, Rule 38)
Section 5: Preliminary injunction
pending proceedings
PRELIMINARY INJUNCTION PENDING PROCEEDINGS:
- The court in which the petition is filed may grant
such preliminary injunction as may be necessary for
the preservation of the rights of the parties, upon the
filing by the petitioner of a bond in favor of the
adverse party, conditioned that if the petition is
dismissed or the petitioner fails on the trial of the
case upon its merits, he will pay the adverse party all
damages and costs that may be awarded to him by
reason of the issuance of such injunction or the other
proceedings following the petition, but such
injunction shall not operate to discharge or
extinguish any lien which the adverse party may have
acquired upon, the property, of the petitioner. (Sec.
5, Rule 38)
Section 6: Proceedings after answer is filed
HEARING OF THE PETITION:
- After the filing of the answer or the expiration of the
period to file the answer, the court shall hear the
petition. (Sec. 6, Rule 38)
ACTION OF THE COURT:
- After the hearing and the court finds that the
allegations therein are not true, it shall dismiss the
petition. On the other hand, If the court finds the
90 CIVIL PROCEDURE
allegations to be true, it shall set aside the judgment,
final order or other proceeding complained of. Then,
the case shall stand as if such judgment, final order
or proceeding had never been rendered, issued or
taken. The court shall then proceed to hear and
determine the case as if a timely motion for a new
trial or reconsideration had been granted by it.
(Sec.6, Rule 38)
Section 7: Procedure where the denial
of an appeal is set aside
PROCEDURE WHERE THE DENIAL OF AN APPEAL IS SET
ASIDE:
- Where the denial of an appeal is set aside, the lower
court shall be required to give due course to the
appeal and to elevate the record of the appealed
case as if a timely and proper appeal had been
made. (Sec. 7, Rule 38)
NO PETITION FOR RELIEF IN THE SUPREME COURT AND
COURT OF APPEALS:
- A petition for relief judgment is not available remedy
in the Supreme because of the following:
- A Sec. 1, Rule 38 rule must be interpreted in
harmony with Rule Sec. 1, Rule 56 which
provides that a petition for relief judgment is
not included in the list thereof which is
originally cognizable by the Supreme Court;
- While Rule 38 radically phrase “any court,” it
refers only to MTC, MeTC and RTC;
- The procedure in the CA and the SC are
governed by separate provisions of the
ROC. (Purcon vs. MRM Philippines, 566
SCRA 645)
RULE 39
EXECUTION, SATISFACTION AND EFFECT OF
JUDGMENTS
MEANING OF EXECUTION:
- It is the remedy afforded for the satisfaction of a
judgment. Its object being to obtain satisfaction of
the judgment on which the writ is issued. (Cagayan
de Oro Coliseum vs. CA, 320 SCRA 731)
- It is the fruit and of the suit, and is the life of the law.
(Ayo vs. Violago-Isnani, 308 SCRA 543)
PART OF THE JUDGMENT TO BE EXECUTED:
- It is the dispositive portion (or the “Fallo”) of the
judgment which is subject to execution under Rule
39. Hence, if there is a conflict between the
dispositive portion of the decision and the body
thereof, the dispositive portion controls irrespective
of what appears in the body. (Globe Telecom vs.
Florendo-Flores, 39- SCRA 201)
WHEN EXECUTION SHALL ISSUE:
- Execution is a matter of right upon the expiration of
the period to appeal and no appeal was perfected
from a judgment or order that disposes of the action
or proceeding. (Sec. 1, Rule 39)
 CIVIL PROCEDURE
Morillo Notes
- Once judgment becomes final and executory, the
prevailing party can have it executed as a matter of
right, and the issuance of a writ of execution
becomes the ministerial duty of the court. (Buaya vs.
Stronghold Insurance, 342 SCRA 576)
- Once a judgment becomes final, it is basic that the
prevailing party is entitled as a matter of right to a
writ of execution the issuance of which is the trial
court’s ministerial duty, compellable by mandamus.
(Greater Metro Manila Solid Waste Management
Committee vs. Jancom Environmental Corp., 494
SCRA 280)
HOW EXECUTION SHALL BE ISSUED:
- “Execution shall issue .. on motion” as clearly set
forth under Sec. 1, Rule 39. Therefore, there is a
need to file a motion before the issuance of a writ of
execution.
- A judge may not order execution of the judgment in
the decision itself. Also, even in judgments which
are immediately executory, “there must be a motion
to that effect and a hearing called for the purpose.”
(Lou vs. Siapno, 335 SCRA 181)
- Under SC Circular No. 24-94, a motion for the
issuance of a writ must contain a notice to the
adverse party. (Pallada vs. RTC, Kalibo Aklan, 304
SCRA 440)
WHERE APPLICATION FOR EXECUTION MADE:
- Execution shall be applied for in the court of origin. If
an appeal has been duly perfected and finally
resolved, the execution may be applied for also in
the court of origin on motion of the judgment obligee.
(Sec. 1, Rule 39)
- In filing a motion for execution of an appealed
decision, there is no need to wait for the records of
the case to be remanded to the court of origin. All
that is required is for the appeal to have been duly
perfected and finally resolved before the execution
may be applied for. (Bergonia vs. Decano, 317 SCRA
660)
- When the judgment obligee files a motion for
execution in the court of origin, all he has to do is to
attach the certified true copies of (a) the judgment of
the appellate court, and (b) the entry of the said
judgment, with notice to the adverse party (Sec. 1,
Rule 39) even if the records have not yet as yet been
remanded to the court of origin. This procedure
prevents needless delays in the execution of the
judgment.
- However, if the execution cannot be had with
dispatch in the court of origin, the new rules likewise
afford the judgment obligee a remedy. He may file a
motion with the appellate court to direct the court of
origin, in the interest of justice, to issue the writ of
execution. (Sec. 1, Rule 39)
NO APPEAL FROM AN ORDER OF EXECUTION:
- An appeal may be taken from a judgment or final
order that completely disposes of the case. (Sec. 1,
Rule 41)
- No appeal may be taken from an order of execution.
(Sec. 1(e), Rule 41).
- A party desiring to assail an order of execution may
instead file an appropriate special civil action under
Rule 65. (Sec. 1, Rule 41).
FORM AND CONTENTS OF WRIT OF EXECUTION:
- It is issued in the name of the Republic of the
Philippines and shall state the following:
a. the name of the court which granted the
motion;
b. the case number and title;
c. the dispositive portion of the judgment or
order subject of the execution; and
d. shall require the sheriff or other proper
officer to whom it is directed to enforce the
writ according to its terms. (Sec. 8, Rule 39)
WRIT OF EXECUTION SHOULD CONFORM TO THE
DISPOSITIVE PORTION OF THE JUDGMENT:
- The writ of execution should conform to the
dispositive portion of the decision to be execution
and the execution is void if it is in excess of and
beyond the original judgment or award for it is a
settled general principle that a writ of execution must
conform strictly to every essential particulars of the
judgment promulgated (Ex-Bataan Veterans vs.
NLRC, 250 SCRA 418)
- An order of execution which does not substantially
conform to the dispositive portion of the decision
sought to be executed or which varies or goes
beyond the terms of the judgment it seeks to enforce
is null and void. (Lao vs. King, 500 SCRA 280)
- A writ of execution must conform to the judgment
which is to be executed, substantially to every
essential particular thereof, is settled. It may not
thus, vary the terms of the judgment it seeks to
enforce, nor go beyond its terms. Where the
execution is not in harmony with the judgment which
gives it life and exceeds it, it has no validity. (Greater
Metro Manila Solid Waste Management Committee
vs. Jancom Environmental Corp., Supra)
LIFETIME OF THE WRIT OF EXECUTION:
- The writ shall continue in effect during the period
within which the judgment may be enforced by
motion. (Sec. 14, Rule 39). Hence, the writ is
enforceable within the 5-year period from entry of
judgment as provided for in Sec. 6, Rule 39 because
within that period, the writ may be enforced by
motion.
WHEN EXECUTION WILL BE DENIED: The trial court may
refuse to have the judgment executed in the following cases:
a. When the judgment has already been executed by
the voluntary compliance thereof by the parties
(Cunanan vs. CA, 25 SCRA 263);
b. When the judgment has been novated by the parties
(Dormitorio vs. Fernandez, 72 SCRA 366);
c. When a petition for relief is filed and a preliminary
injunction is granted in accordance with Sec. 5, Rule
38. Also, when execution of the judgment is enjoined
by a higher court;
d. When the judgment sought to be executed is
conditional or when the judgment sought to be
executed is incomplete (Co-Unjieng vs. Hijos
Mabalacat, 70 Phil. 380; Del Rosario vs. Villegas, 49
Phil. 634);
e. When facts and circumstances transpire which
would render execution inequitable or unjust.
(Bachrach Corp. vs. CA, 296 SCRA 487);
CIVIL PROCEDURE 91
 CIVIL PROCEDURE
Morillo Notes
f. When execution is sought more than 5 years from its
entry without the judgment having been revived
(Cunanan vs. CA, Supra)’
g. When execution is sought against property exempt
from execution under Sec. 13, Rule 39; or
h. When refusal to execute the judgment has become
imperative in the higher interest of justice. (Phil.
Veterans Bank vs. IAC, 78 SCRA 645)
QUASHAL OF A WRIT OF EXECUTION:
- Well-entrenched rule is that the execution of final and
executory judgments may no longer be contested
and prevented, and no appeal should lie therefrom.
Otherwise, cases would be interminable, and there
would be negation of the overmastering need to end
litigation.
- However, there maybe instances when errors may be
committed prejudicial to the rights of a party and do
call for correction by a superior court. In these
exceptional circumstances, considerations of justice
and equity dictate that there be some mode available
to the party aggrieved of elevating the question to a
higher court. That mode of elevation may be either
by appeal or by a special civil action of certiorari,
prohibition, or mandamus. (Reburiano vs. CA, 301
SCRA 342)
EXAMPLES OF EXCEPTIONAL CIRCUMSTANCES THAT
MAY PREVENT THE EXECUTION OF A JUDGMENT OR
ALLOW THE QUASHAL OF A WRIT OF EXECUTION
ALREADY ISSUED:
a. When the writ of execution varies the judgment;
b. When there has been a change in the situation of the
parties making execution inequitable or unjust;
c. When execution is sought to be enforced against
property exempt from execution;
d. When it appears that the controversy has never been
submitted to the judgment of the court;
e. When the terms of the judgment are not clear
enough and there remains room for interpretation
thereof;
f. When it appears that the writ of execution has been
improvidently issued;
g. When it appears that the writ of execution is
defective in substance, or is used against the wrong
party, or that the judgment debt has been paid or
otherwise satisfied, or the writ was issued without
authority (Reburiano vs. CA, 301 SRA 342)
DUTY OF SHERIFF:
- It is purely ministerial because he shall execute the
order of the court strictly to the letter. He has no
discretion whether to execute the judgment or not.
(Cebu International Finance Corp. vs. Cabigon, 515
SCRA 616)
- If the execution is not enforced, such decisions are
empty victories on the part of the prevailing parties.
(Cebu International Finance vs. Cabigon, Supra)
MODES OF EXECUTION OF A JUDGMENT:
a. Execution by motion if the enforcement of the
judgment is sought within 5 years from the date of its
entry; and
b. Execution by independent action if the 5-year period
by elapsed and before it is barred by the statute of
limitations. (Sec. 6, Rule 39)
92 CIVIL PROCEDURE
REVIVAL OF JUDGMENT:
- An action for revival of judgment is no more than a
procedural means of securing the execution of a
previous judgment which has become dormant after
the passage of 5 years without it being executed
upon motion of the prevailing party. It is not intended
to re-open any issue affecting the merits of the
judgment of debtor’s case nor the property or
correctness of the first judgment. An action for
revival of judgment is a new and independent action,
different and distinct from either the recovery of
property case or the reconstitution case, wherein the
cause of action is the decision itself and not the
merits of the action upon which the judgment sought
to be enforced is rendered. Revival of judgment is
premised on the assumption that the decision to be
revived is already final and executory. (Saligumba vs.
Palanog, 573 SCRA 8)
- The action to revive a judgment must be filed within
10 yrs from the date the judgment became final
because an action to enforce a judgment prescribed
in 10 years from the finality of the judgment. (Art.
1144(3), relating to Art. 1152, NCC).
- Since the date of the finality of the judgment or final
order shall be deemed to be the date of its entry
(under Sec. 2, Rule 36), the prescriptive period
period is supposed to run from the date of entry of
the judgment.
- A revived judgment is deemed a new judgment
separate and distinct from the original judgment. It is
not a continuation of the original judgment. The
action to revive the judgment is a new action and
results in a new judgment constituting a new cause
of action with a new period of limitations. Hence, the
10-year period to revive the revived judgment shall
commence to run from the date of the finality of the
revived judgment and not from the date of finality of
the old, original judgment. (PNB vs. Bondoc, 14
SCRA 770)
- A proceeding by separate ordinary action to revive a
judgment is a new action rather than a continuation
of the old, and results in a new judgment constituting
a new cause of action, upon which a new period of
limitation begins to run. (PNB vs. Bondoc, Supra)
VENUE OF AN ACTION TO REVIVE A JUDGMENT:
- It depends on the determination of whether the
present action for revival of judgment is a real action
or personal action. If the action for revival of
judgment affects title to or possession of real
property, interest therein, then it is a real action that
must be filed with the court of the place where the
real property is located. If such action does not fall
under the category of real action, it is then a personal
action that may be filed with the court of the place
where the plaintiff or defendant resides. (Infante vs.
Aran Builders, 531 SCRA 123)
WHEN THE 5-YEAR PERIOD IS INTERRUPTED:
- General Rule: The execution of a judgment can no
longer be effected by mere motion after 5 years from
the date of entry of the judgment.
- Exceptions: When the delay in the execution of
judgment were through causes clearly attributable to
the judgment debtor as when he employs legal
 CIVIL PROCEDURE
Morillo Notes
maneuvers to block the enforcement of the
judgment. Delays attributable to the defendant have
the effect of suspending the running of the
prescriptive period for the enforcement of the
judgment. (Camacho vs. CA, 287 SCRA 611). The
period may also be interrupted by the agreement of
the parties to suspend the enforcement of the
judgment (Macias vs. Lim, 431 SCRA 20)
WHERE THE 5 AN 10 YEAR PERIODS DO NOT APPLY:
a. Special proceedings, such as land registration and
cadastral cases, wherein the right to ask for a writ of
possession does not prescribe. (Rodil vs. Benedicto,
95 SCRA 137);
b. Judgments for support which do not become
dormant and which can always be executed by
motion despite lapse of the 5-year period because
the obligation is a continuing one and the court never
loses jurisdiction to enforce the same. (Canonizado
vs. Benitez, 127 SCRA 610)
STAY OF EXECUTION OF A JUDGMENT:
- General Rule: An appeal perfected in due tie stays
the execution of a judgment.
- Exceptions: There are judgments that the execution
of which is not stayed by a pending appeal,
classified under the following categories;
a. Those judgments which by express
provision of the rules are immediately
executory and are not stayed by an appeal.
(Sec. 4, Rule 39);
b. Those judgments that have become the
object of discretionary execution. (Sec. 2,
Rule 39)
JUDGMENTS NOT STAYED BY APPEAL:
a. Judgment for injunction;
b. Judgment for receivership;
c. Judgment for accounting; and
d. Judgment for support. (Sec. 4, Rule 39)
ADDITIONAL NOTES:
- The above judgments, which are immediately
executory and not stayed by an appeal, is not
absolute because the court is authorized to order
otherwise. Also on appeal therefrom, the appellate
court in its discretion may make an order,
suspending, modifying, restoring or granting the
injunction, receivership, accounting or award of
support. (Sec. 4, Rule 39)
- The stay of the execution of the above judgments, if
ordered by the trial court, shall be upon such terms
as to bond or otherwise as may be considered
proper for the security or protection of the rights of
the adverse part. (Sec. 4, Rule 39)
- A judgment rendered against the defendant in an
action for forcible entry and unlawful detainer is
likewise immediately executory upon motion. (Sec.
19, Rule 70).
- Even if the above judgment is immediately executory,
there must be a motion to that effect and a hearing
called for that purpose. In an ejectment case, the
adverse party is entitled to notice before execution.
(Lou vs. Siapno, 335 SCRA 181)
DISCRETIONARY EXECUTION:
- This constitutes an exception to the general rule that
a judgment cannot be executed before the lapse of
the period for appeal or during the pendency of an
appeal. Under Sec.1, Rule 39, execution shall issue
only as a matter of right upon a judgment or final
order that finally disposes of the action or
proceeding upon the expiration of the period to
appeal therefrom if no appeal has been duly
perfected.
- Good reasons must exists and the compelling
grounds for the issuance of the writ must be stated
in a special order after due hearing. (Bangkok Bank
Public Company vs. Lee, 479 SCRA 267)
REQUISITES FOR DISCRETIONARY EXECUTION:
1. There must be a motion filed by the prevailing party
with notice to the adverse party;
2. There must be a hearing of the motion for discovery
execution;
3. The motion must be filed in the trial court while it has
jurisdiction over the case and is in possession of
either the original record or the record on appeal;
4. There must be good reasons to justify the
discretionary execution; and
5. The good reasons must be stated in a special order.
(Sec. 2, Rule 39; Mancenido vs. CA, 330 SCRA 419;
Bangkok Bank vs. Lee, Supra)
DISCRETIONARY EXECUTION IS TO BE STRICTLY
CONSTRUED:
- A discretionary execution must be strictly construed
because it is an exception to the general rule. It is not
meant to be availed of routinely because it applies
only in extraordinary circumstances. (Corona
International vs. CA, 343 scra 512)
GOOD REASONS:
- This is what confer discretionary power upon the
court to issue a writ of execution pending appeal.
(Intramuros Tennis Club vs. CA, 341 SCRA 90)
- Good reasons call for the attendance of compelling
circumstances warranting immediate execution for
fear that favorable judgment may yield to an empty
victory. In this regard, the ROC does not
categorically and strictly define what constitutes
“good reasons”and therefore, its presence or
absence must be determined in view of the peculiar
circumstances of each case. As a guide,
jurisprudence dictates that the”good reason”
yardstick imports superior circumstances that will
outweigh injury or damage to the adverse party.
Corollarily, the requirement of “good reason” does
not necessarily entail unassailable and flawless
bases but at the very least, an invocation thereof
must be premised on solid footing”. (GSIS vs.
Prudential Guarantee, GR no. 165558, November 20,
2013)
- Certiorari will lie against an order granting execution
pending appeal where the same is not founded upon
good reasons. (International School (Manila) vs. CA,
309 SCRA 474)
JURISPRUDENTIAL EXAMPLES OF GOOD REASONS:
a. The insolvency of the debtors may justify
discretionary execution as when it is proven that had
been exhausting for their personal use all the
CIVIL PROCEDURE 93
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monthly installments being received by them from
the sales of the different lots of the subdivision in
question, they have not constructed therein the
improvements required by law like the construction
of roads, gutters and that they do not appear to have
any other properties or assets to answer not only for
the aforementioned obligations but more particularly
the obligations imposed upon them by the decision.
(Lao vs. Mencias, 21 SCRA 1021);
b. The purpose of preventing irreparable injury to the
consumers of an electric cooperative which needs
the amount of the judgment for its operations and
the repair of its transmission lines, electric posts,
transformers, accessories, towers and fixtures within
its coverage area. (Fortune Guarantee vs. CA, 379
SCRA 7)
c. The fact that the goods subject of the judgment will
perish or deteriorate during the pendency of the
appeal, a fact which would render the judgment in
favor of the prevailing party ineffective. (Federac=tion
of United NAMARCO Distributors vs. CA, 4 SCRA
867);
d. The failure in an unlawful detainer case to make the
required periodic deposits to cover the amount of
rentals due under the contract or for payment of the
reasonable value of the use and occupation of the
premises, or the failure to post a supersedeas bond
may be good reasons to allow execution pending
appeal. (Sec. 19, Rule 70)
FRIVOLOUS APPEAL AS REASON FOR DISCRETIONARY
EXECUTION:
- Where the sole reason given by the trial court in
allowing execution is that the appeal is frivolous and
dilatory, execution pending appeal cannot be
justified because the authority to disapprove an
appeal pertains to the appellate court. (International
School (Manila) vs. CA, Supra)
- It is not within the competence of the trial court, in
resolving a motion for execution pending appeal, to
rule that the appeal is patently dilatory and rely on
the same as basis for finding good reasons to grant
the motion. Only an appellate court can appreciate
the dilatory intent of an appeal as an additional good
reason in upholding an order for execution pending
appeal. (Sangkay vs. NPC, 489 SCRA 401)
POSTING OF BOND AS REASON FOR DISCRETIONARY
EXECUTION:
- The rule is that the mere filing of a bond by the
successful party is not in itself a good reason for
ordering execution pending appeal, because it is the
combination of circumstances which is the
dominating reason that would justify immediate
execution, the bond being only an additional factor.
(International School (Manila) vs. CA, Supra)
- It is already settled that the mere filing of a bond
does not warrant execution pending appeal. To
consider the mere filing of a bond a good reason
would precisely make immediate execution of a
judgment pending appeal routinary, the rule rather
than the exception. (Stronghold Insurance vs. CA,
179 SCRA 117)
FINANCIAL DISTRESS AS REASON FOR DISCRETIONARY
EXECUTION:
94 CIVIL PROCEDURE
- The fact that the prevailing party is in financial
distress is also not in itself a good reason to justify
execution pending appeal. (Intramuros Tennis vs.
CA, Supra)
WHERE TO FILE AN APPLICATION FOR DISCRETIONARY
EXECUTION:
- The motion for discretionary execution shall be filed
with the trial court while (a) it has jurisdiction over the
case and while (b) it is in possession of either the
original record or the record on appeal. After the trial
court has lost jurisdiction, the motion for execution
pending appeal may be filed in the appellate court.
(Sec. 2, Rule 39)
REMEDY WHERE THE JUDGMENT SUBJECT TO
DISCRETIONARY EXECUTION IS REVERSED OR
ANNULLED:
- where the executed judgment is reversed totally or
partially, or annulled, on appeal or otherwise, the trial
court may, on motion, issue such orders of
restitution or reparation of damages as equity and
justice may warrant under the circumstances. (Sec.
5, Rule 39)
- There is no need of specifying in the judgment that
there should be restitution because restitution is
expressly provided for in the ROC. Said rule should
apply in the absence of a disposition to the contrary
in the judgment of the appellate court. (Salas vs.
Quinga, 13 SCRA 143)
EXECUTION IN CASE THE JUDGMENT OBLIGEE
(CREDITOR) DIES:
- The death of the judgment obligee will not prevent
the execution of the judgment. In case the judgment
obligee dies, the execution may issue upon the
application of his executor, administrator or
successor in interest. (Sec. 7(a), Rule 39)
EXECUTION IN CASE THE JUDGMENT OBLIGOR
(DEBTOR) DIES:
- Likewise, it will not prevent execution of the
judgment. In case the judgment obligor dies,
execution shall still go on because under the ROC,
execution shall issue against his executor or
administrator or successor in interest, if the judgment
be for the recovery of real or personal property, or
the enforcement of a lien thereon. (Sec. 7(b), Rule 39)
- If the death occurs after the execution is actually
levied upon any of his property, the same may be
sold for the satisfaction of the judgment obligation. If
there is any surplus after the sale, the officer making
the sale shall account to the corresponding executor
or administrator. (Sec. 7(c), Rule 39)
HOW TO EXECUTE JUDGMENTS FOR MONEY: The sheriff
shall following steps:
a. Demand from the judgment obligor the immediate
payment of the full amount stated in the judgment
including the lawful fees in cash, certified check
payable to the judgment obligee or any other form of
payment acceptable to him. (Sec. 9(a), Rule 39);
b. If the judgment obligor cannot pay all or part of the
obligation in cash, certified check or other mode of
payment, the officer shall levy upon the properties of
 CIVIL PROCEDURE
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the judgment obligor. The judgment obligor shall
have the option to choose which property or part
thereof may be levied upon. If the judgment obligor
does not exercise the option, the officer shall first
levy on the personal properties, if any, and then on
the real properties if the personal properties are
insufficient to answer for the personal judgment but
the sheriff shall set only so much of the property that
is sufficient to satisfy the judgment and lawful fees.
(Sec. 9(b), Rule 39)
c. The officer may levy on the debts due the judgment
debtor including bank deposits, financial interests,
royalties, commissions and other personal property
not capable of manual delivery in the possession or
control of third parties. The process of effecting this
form of levy is called “garnishment”.
MONEY JUDGMENTS ARE ENFORCEABLE ONLY
AGAINST PROPERTY OF JUDGMENT DEBTOR:
- The sheriff cannot and should not be the one to
determine which property to levy of the judgment
obligor cannot immediately pay because it is the
judgment obligor who is given the option to choose
which property or part thereof may be levied upon to
satisfy the judgment.
- In case where the judgment obligor is not the owner
of the subject vehicle that the sheriff levied on, it was
improper for him to have enforced the writ of
execution on a property that did not belong to the
judgment debtor/obligor. Respondent Sheriff
evidently failed to perform his duty with utmost
diligence. (Sarmiento vs. Mendiola, 638 SCRA 345)
GARNISHMENT OF DEBTS AND CREDITS:
- Garnishment shall be made by (a) serving notice
upon the third person having in possession or control
of the credits in favor of the judgment obligor/debtor;
(b) the third person or garnishee shall make a written
report to the court within 5 days from service of the
notice of garnishment stating whether or not the
judgment obligor has sufficient funds to satisfy the
judgment. If sufficient, the garnishee shall deliver the
amount in cash or certified check directly to the
judgment obligee/creditor within 10 working days
from service of notice on said garnishee. The lawful
fees shall be directly paid to the court. If the amount
is insufficient, the garnishee shall make a report as to
the amount he holds for the judgment obligor/debtor.
(Sec. 9, Rule 39)
LEVY OF ENCUMBERED PROPERTY:
- In determining properties to be levied upon, the ROC
requires the sheriff to levy only on those “properties
of the judgment debtor” which are “not otherwise
exempt from judgment debtor”. For purposes of the
levy, a property is deemed to belong to the judgment
debtor if he holds a beneficial interest in such
property that he can sell or otherwise dispose of for
value. In a contract of mortgage, the debtor retains
beneficial interest over the property notwithstanding
the encumbrance, since the mortgage only serves to
secure the fulfillment of the principal obligation.
Indeed, even if the debtor defaults, this fact does not
operate to vest in the creditor the ownership of the
property; the creditor must still resort to foreclosure
proceedings. Thus, a mortgaged property may still
be levied upon by the sheriff to satisfy the judgment
debtor’s obligations” (Golden Sun Finance Corp. vs.
Albano, AM No. P-11-2888, July 27, 2011)
EFFECT OF LEVY AND SALE OF PROPERTY:
- Execution is enforced by the fact of levy and sale.
The result of such execution was that title over the
subject property is vested immediately in the
purchaser subject only to the right to redeem the
property within the period provided for by law. The
right acquired by the purchaser at an execution sale
is inchoate and does not become absolute until after
the expiration of the redemption period without the
right of redemption having been exercised. But
inchoate though it be, it is entitled to protection and
must be respected until extinguished by redemption.
If there is failure to redeem the subject property
within the period allowed by law, the redemptioner is
divested of his rights over the property. (Ching vs.
Family Savings banks, 634 SCRA 585)
EXECUTION OF A JUDGMENT FOR THE PERFORMANCE
OF A SPECIFIC ACT:
- If the judgment requires a person to perform a
specific act, said act must be performed but if the
party fails to comply within the specified time, the
court may direct the act to be done by someone at
the cost of the disobedient party and the act when
so done shall have the effect as if done by the party.
(Sec. 10(a), Rule 39).
- If the judgment directs a conveyance of real or
personal property, and said property is in the
Philippines, the court in lieu of directing the
conveyance thereof, may by an order divest the title
of any party and vest it in others, which shall have
the force and effect of a conveyance executed in due
form of law. (Sec. 10(a), Rule 39)
EXECUTION FOR A JUDGMENT FOR THE DELIVERY OR
RESTITUTION OF REAL PROPERTY:
- An example of this kind of judgment is one rendered
in an action for ejectment. In such a case, the officer
shall demand from the judgment obligor/debtor to
vacate peaceably within 3 working days, and restore
possession of the property to the judgment
obligee/creditor. (Sec. 10(c), Rule 39)
- When a decision is immediately executory it does not
mean dispensing with the required 3-day notice. A
sheriff who enforces the writ without the required
notice is running afoul with the rules. The
requirement of a notice to vacate is based on the
rudiments of justice and fair play. The rule requires
that notice be served on the “person against whom
the judgment for the delivery or restitution of real
property is rendered and all persons claiming rights
under him”. (Calaunan vs. Madolori, 642 SCRA 1)
- After the lapse of the period given and the judgment
obligor/debtor refuses to vacate, then the sheriff may
enforce the writ by ousting the judgment
obligor/debtor and all the persons claiming a right
under him, with the assistance, if necessary, of
appropriate peace officers, and employing such
means as may be reasonably necessary to retake
possession and place the judgment obligee/creditor
in possession of such property. (Sec. 10(c), Rule 39).
This provision authorizes the bodily removal of the
defendant and his belongings (Mendoza vs. Doroni,
481 SCRA 41)
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 CIVIL PROCEDURE
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REMOVAL OF IMPROVEMENT ON THE PROPERTY
SUBJECT OF EXECUTION:
- When the property subject of the execution contains
improvements constructed or planted by the
judgment obligor or his agent, the officer shall not
destroy, demolish or remove said improvements
except upon special order of the court, issued upon
motion of the judgment obligee after the hearing and
after the former has failed to remove the same within
a reasonable time fixed by the court. (Sec. 10(d),
Rule 39)
PROPERTY EXEMPT FROM EXECUTION:
a. The judgment obligor/debtor’s family home as
provided by law, or the homestead in which he
resides, and the ;and necessarily used in connection
therewith;
b. Ordinary tools and implements personally used by
him in his trade, employment, or livelihood;
c. Three horses, or three carabaos, or other beasts of
burden, such as the judgment obligor/debtor may
select necessarily used by him in his ordinary
occupation;
d. His necessary clothing and articles for ordinary
personally use, excluding jewelry;
e. Household furniture and utensils necessary for
housekeeping, and used for that purpose by the
judgment obligor and his family, such as the
judgment obligor may select, of a value not
exceeding one hundred thousand pesos;
f. Provisions for individual or family use sufficient for
four months;
g. The professional libraries and equipment of judges,
lawyers, physicians, pharmacists, dentists,
engineers, surveyors, clergymen, teachers, and other
professionals, not exceeding three hundred
thousand pesos in value;
h. One fishing boat and accessories not exceeding the
total value of one hundred thousand pesos owned by
a fisherman and by the lawful use of which he earns
his livelihood;
i. So much of the salaries, wages, or earnings of the
judgment obligor for his personal services within the
four months preceding the levy as are necessary for
the support of his family;
j. Lettered gravestones;
k. Monies, benefits, privileges, or annuities accruing or
in any manner growing out of any life insurance;
l. The right to receive legal support, or money or
property obtained as such support, or any pension or
gratuity from the Government;
m. Properties specially exempted by law. (Sec. 13, Rule
39)
WHEN THE PROPERTY MENTIONED IS NOT EXEMPT
FROM EXECUTION:
- Under Sec. 13, Rule 39; “But no article or species of
property mentioned in this section shall be exempt
from execution issued upon a judgment recovered
for its price or upon a judgment of foreclosure of a
mortgage thereon.” (Sec. 13, Rule 39)
PROCEEDINGS WHEN THE PROPERTY LEVIED UPON IS
CLAIMED BY THIRD PERSONS:
96 CIVIL PROCEDURE
- If the property levied on is claimed by any person
other than the judgment obligor or his agent, and
such person makes an affidavit of his title thereto or
right to the possession thereof, stating the grounds
of such right or title, and serves the same upon the
officer making the levy and copy thereof, stating the
grounds of such right or tittle, and a serves the same
upon the officer making the levy and a copy thereof
upon the judgment obligee, the officer shall not be
bound to keep the property, unless such judgment
obligee, on demand of the officer, files a bond
approved by the court to indemnity the third-party
claimant in a sum not less than the value of the
property levied on. In case of disagreement as to
such value, the same shall be determined by the
court issuing the writ of execution. No claim for
damages for the taking or keeping of the property
may be enforced against the bond unless the action
therefor is filed within one hundred twenty (120) days
from the date of the filing of the bond. (Sec. 16, Rule
39)
- The officer shall not be liable for damages for the
taking or keeping of the property, to any third-party
claimant if such bond is filed. Nothing herein
contained shall prevent such claimant or any third
person from vindicating his claim to the property in a
separate action, or prevent the judgment obligee
from claiming damages in the same or a separate
action against a third-party claimant who filed a
frivolous or plainly spurious claim. (Sec. 16, Rule 39)
- When the writ of execution is issued in favor of the
Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be
required, and in case the sheriff or levying officer is
sued for damages as a result of the levy, he shall be
represented by the Solicitor General and if held liable
therefor, the actual damages adjudged by the court
shall be paid by the National Treasurer out of such
funds as may be appropriated for the purpose. (Sec.
16, Rule 39)
MISCELLANEOUS PRINCIPLES TO BE REMEMBERED IN
EXECUTION SALES:
- A notice of sale is required before the property levied
upon is sold on execution. All sales of property under
execution must be made at public auction to the
highest bidder but the execution sale must be
preceded by a valid levy which is indispensable for a
valid execution sale. (Tan vs. CA, 162 SCRA 237)
- A “levy” is the act whereby the sheriff sets apart or
appropriates a part of the whole of the properties of
the judgment obligor/debtor to satisfy the command
of the writ. (Fiestan vs. CA, 185 SCRA 751)
- A levy is necessary only if the obligor/debtor cannot
satisfy the judgment in cash, certified check or any
other mode of payment acceptable to the judgment
creditor. (Sec. 9(b), Rule 39).
- A levy upon real property is made by the officer by
performing 2 specific acts: (a) filing with the Register
of Deeds a copy of the order, description of the
attached property and notice of the attachment; and
(b) leaving with the occupant of the property copy of
the same order, description and notice. Non-
compliance with any of these requisites is fatal
because a special statutory provision respecting the
manner of carrying out levy of attachment must be
strictly complied with and departure therefrom shall
 CIVIL PROCEDURE
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invalidate the levy. (Delta Motors vs. CA, 168 SCRA
206)
- After sufficient property has been sold to satisfy the
execution, no more shall be sold. (Sec. 19, Rule 39)
- Any excess property or proceeds of the sale shall be
delivered to the judgment obligor/debtor. (Sec. 19,
Rule 39)
- If a purchaser refuses to pay the amount bid by him
for property struck off to him at a sale under
execution, the officer may again sell the property to
the highest bidder and shall not be responsible for
any loss occasioned thereby; but the court may
order the refusing purchaser to pay into the court the
amount of such loss, with costs, and may punish him
for contempt if he disobeys the order. The amount of
such payment shall be for the benefit of the person
entitled to the proceeds of the execution, unless the
execution has been fully satisfied, in which event
such proceeds shall be for the benefit of the
judgment obligor. The officer may thereafter reject
any subsequent bid of such purchaser who refuses
to pay. (Sec. 20, Rule 39)
- When the purchaser is the judgment obligee, and no
third-party claim has been filed, he need not pay the
amount of the bid if it does not exceed the amount of
his judgment. If it does, he shall pay only the excess.
(Sec. 21, Rule 39)
- When the purchaser of any personal property,
capable of manual delivery, pays the purchase price,
the officer making the sale must deliver the property
to the purchaser and, if desired, execute and deliver
to him a certificate of sale. The sale conveys to the
purchaser all the rights which the judgment obligor
had in such property as of the date of the levy on
execution or preliminary attachment. (Sec. 23, Rule
39)
- When the purchaser of any personal property, not
capable of manual delivery, pays the purchase price,
the officer making the sale must execute and deliver
to the purchaser a certificate of sale. Such certificate
conveys to the purchaser all the rights which the
judgment obligor had in such property as of the date
of the levy on execution or preliminary attachment.
(Sec. 24, Rule 39)
SALE AND REDEMPTION OF REAL PROPERTY:
- Upon a sale of real property, the officer must give to
the purchaser a certificate of sale. Such certificate
must be registered in the registry of deeds of the
place where the property is situated. (Sec. 25, Rule
39)
- The real property sold may be redeemed from the
purchaser, at any time within 1 year from the date of
the registration of the certificate of sale. If there are
other creditors having a lien on the property, the
property so redeemed may again be redeemed
within 60 days from the last redemption. The
property may again, and as often a redemptioner is
so disposed,be redeemed from any previous
redemptioner within 60 days after the last
redemption. (Sec. 28, Rule 39)
EFFECT IF NO REDEMPTION IS MADE:
- If no redemption be made within one (1) year from
the date of the registration of the certificate of sale,
the purchaser is entitled to a conveyance and
possession of the property; or, if so redeemed
whenever sixty (60) days have elapsed and no other
redemption has been made, and notice thereof
given, and the time for redemption has expired, the
last redemptioner is entitled to the conveyance and
possession; but in all cases the judgment obligor
shall have the entire period of one (1) year from the
date of the registration of the sale to redeem the
property. The deed shall be executed by the officer
making the sale or by his successor in office, and in
the latter case shall have the same validity as though
the officer making the sale had continued in office
and executed it. (Sec. 33, Rule 39)
- Upon the expiration of the right of redemption, the
purchaser or redemptioner shall be substituted to
and acquire all the rights, title, interest and claim of
the judgment obligor to the property as of the time of
the levy. The possession of the property shall be
given to the purchaser or last redemptioner by the
same officer unless a third party adversely to the
judgment obligor. (sEC. 33, rule 39)
RENTS, INCOME AND EARNINGS OF THE PROPERTY
PENDING THE REDEMPTION:
- The purchaser or a redemptioner shall not be entitled
to receive the rents, earnings and income of the
property sold on execution, or the value of the use
and occupation thereof when such property is in the
possession of a tenant. All rents, earnings and
income derived from the property pending
redemption shall belong to the judgment obligor until
the expiration of his period of redemption. (Sec. 32,
Rule 39)
REMEDY WHEN THE JUDGMENT IS UNSATISFIED:
- When the return of a writ of execution issued against
property of a judgment obligor, or any one of several
obligors in the same judgment, shows that the
judgment remains unsatisfied, in whole or in part, the
judgment obligee, at any time after such return is
made, shall be entitled to an order from the court
which rendered the said judgment, requiring such
judgment obligor to appear and be examined
concerning his property and income before such
court or before a commissioner appointed by it at a
specified time and place; and proceedings may
thereupon be had for the application of the property
and income of the judgment obligor towards the
satisfaction of the judgment. But no judgment obligor
shall be so required to appear before a court or
commissioner outside the province or city in which
such obligor resides or is found. (Sec. 36, Rule 39)
PRELIMINARY NOTES ON APPEAL
GENERAL PRINCIPLES:
- The right to appeal is not a part of due process but a
mere statutory privilege that has to be exercised only
in the manner and in accordance with the provisions
of law. (Stolt-Nielsen vs. NLRC, 477 SCRA 516)
JUDGMENTS OR ORDERS THAT ARE NOT APPEALABLE:
a. An order denying a petition for relief or any similar
motion seeking relief from judgment;
b. An interlocutory order;
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 CIVIL PROCEDURE
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c. An order disallowing or dismissing an appeal;
d. An order denying a motion to set aside a judgment
by consent, confession or compromise on the
ground of fraud, mistake or duress, or any other
ground vitiating consent;
e. An order of execution;
f. A judgment or final order for or against one or more
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; and
g. An order dismissing an action without prejudice. (AM
No. 07-7-12-SC, December 1, 2007)
NOTE: In any of the foregoing circumstances, the aggrieved
party may file an appropriate special civil action as provided in
Rule 65. (AM No. 07-7-12-SC, December 1, 2007)
REMEDY IN CASE THE JUDGMENT OR FINAL ORDER IS
NOT APPEALABLE:
- 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; Crisologo vs. JEWN Agro-Industrial
Corp., GR no. 196894, March 3, 2014)
ROLE OF THE APPELLEE:
- Appellee’s rule is confined to the task of refuting the
assigned errors interposed by the appellant.
- Since the appellee is not the party who instituted the
appeal, he merely assumes a defensive stance and
his interest is solely relegated to the affirmance of the
judgment appealed from. Accordingly, it is highly
erroneous for the appellee to either assign any error,
or seek any affirmative relief or modification of the
lower court’s judgment without interposing his own
appeal. (Cruz vs. Manila International Airport
Authority, GR no. 184732, September 9, 2013)
APPEALS IN CRIMINAL CASES:
- In a criminal case, the SC instructed that it is
axiomatic that where an accused appeals the
decision against him, throws open the whole case for
review and it, then, becomes the duty of the SC to
correct any error as may be found in the appealed
judgment, whether it was made the subject of
assignment of errors or not. (Dico vs. CA, 452 SCRA
441)
- An appeal in a criminal case opens the entire case
for review. The SC can correct errors unassigned in
the appeal. (People vs. Dela Torre, 567 SCRA 651)
PAYMENT OF DOCKET FEE:
- Payment of docket fee within the prescribed period
is mandatory for the perfection of an appeal. Without
such payment, the appellate court does not acquire
jurisdiction over the subject matter of the action; and
the decision sought to be appealed becomes final
and executory. (Regalado vs. Go, 514 SCRA 616)
QUALIFICATIONS FOR THE PAYMENT OF DOCKET FEE:
1. The failure to pay appellate court docket fee within
the docket fees within the reglementary period allows
only discretionary dismissal, not automatic dismissal,
of the appeal;
98 CIVIL PROCEDURE
2. Such power should be used in the exercise of the
Court’s sound discretion “in accordance with the
tenets of justice and fair play and with great deal of
circumspection considering all attendant
circumstances” (Republic vs. Sps. Luriz, 513 SCRA
140)
RULE 40
APPEAL FROM MUNICIPAL TRIAL COURTS TO THE
REGIONAL TRIAL COURTS
WHERE TO APPEAL FROM A JUDGMENT OR FINAL
ORDER OF A MUNICIPAL COURT:
- An appeal from a judgment or final order of a MTC
mat be taken to the RTC exercising jurisdiction over
the area to which the former pertai. (Sec. 1, Rule 40)
WHEN TO APPEAL:
- Within 15 days after notice to the appellant of the
judgment or final orde appealed from (Sec. 2, Rule
40)
- Where a record on appeal is required, the appellant
shall file a notice of appeal and a record on appeal
within 30 days after notice of the judgment or final
order. (sec. 2, Rule 40).
- A record on appeal shall be required only in special
proceedings and in cases of multiple or separate
appeals. (Sec. 3, Rule 40)
CONTENTS OF NOTICE OF APPEAL:
a. Indicate the parties to the appeal;
b. The judgment or final order or part thereof appealed
from; and
c. State the material dates showing the timeliness of
the appeal (Sec. 3, Rule 40)
HOW TO APPEAL:
- Appeal is taken by the following:
a. By filing a notice of appeal and record of
appeal, where appropriate, with the court
that rendered the judgment or final order
appealed from; and
b. By serving a copy of the notice and record
on the adverse party/ (Sec. 3, Rule 40)
- Therefore, if the judgment was rendered by the
MeTC, the notice of appeal must be filed with said
court, not with the RTC. (Sec. 3, Rule 40)
- Within the period for taking an appeal, the appellant
shall pay to the clerk of the court which rendered the
judgment or final order appealed from the full amount
of the appellate court docket and other lawfl fees.
Proof of payment thereof shall be transmitted to the
appellate court together with the original record or
the record on appeal, as the case may be. (Sec. 5,
Rule 40)
- Within 15 days from the perfection of the appeal, the
clerk of court of the lower court shall transmit the
original record or the record on appeal, together with
transcripts and exhibits, which he shall certify as
complete, to the proper RTC. (Sec. 6, Rule 40)
 CIVIL PROCEDURE
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PERFECTION OF THE APPEAL:
- A party’s appeal by notice is deemed perfected as to
him upon the filing of the notice of appeal in due
time. A party’s appeal by record on appeal is
deemed perfected as to him with respect to the
subject matter thereof upon the approval of the
record on appeal filed in due time. (Sec. 4, Rule 40 in
relation to Sec. 9, Rule 41)
- The notice of appeal does not require the approval of
the court. The function of the notice of appeal is
merely to notify the trial court that the appellate was
availing of the right to appeal, and not to seek the
court’s permission that he be allowed to pose an
appeal. The trial court’s only duty with respect to a
timely notice of appeal is to transmit the original
record of the case to the appellate court. (Crisologo
vs. Daray, 562 SCRA 382)
DUTY OF THE CLERK OF COURT OF THE RTC:
- Upon receipt of the complete record or the record on
appeal, the clerk of court of the RTC shall notify the
parties of such fact. (Sec. 7(a), Rule 40)
SUBMISSION OF MEMORANDUM:
- Within 15 days from such notice, it shall be the duty
of the appellant to submit a memorandum, copy of
which shall be furnished the appellee. (Sec. 7(b), Rule
40)
- For the appellant, the filing of a memorandum is vital
to his appeal. Failure to file shall be ground for the
dismissal of the appeal. The memorandum shall
briefly discuss the errors imputed to the lower court.
The appellee may (if he so desires) file his
memorandum within 15 days from receipt of the
appellant’s memorandum. (Sec. 7(b), Rule 40)
WHEN CASE IS DEEMED SUBMITTED FOR DECISION:
- The case shall be considered submitted for decision
upon the filing of the memorandum of the appellee,
or the expiration of the period to do so. (Sec. 7(c),
Rule 40)
BASIS OF THE DECISION:
- The RTC shall decide the case on the basis of the
entire record of the proceedings had in the court of
origin and such memoranda as are filed. (Sec. 7(c),
Rule 40)
APPEAL FROM AN ORDER DISMISSING A CASE FOR
LACK OF JURISDICTION:
- If an appeal is taken from an order of the lower court
dismissing the case without a trial on the merits, the
Regional Trial Court may affirm or reverse it, as the
case may be. In case of affirmance and the ground of
dismissal is lack of jurisdiction over the subject
matter, the Regional Trial Court, if it has jurisdiction
thereover, shall try the case on the merits as if the
case was originally filed with it. In case of reversal,
the case shall be remanded for further proceedings.
(Sec. 8, Rule 40).
- If the case was tried on the merits by the lower court
without jurisdiction over the subject matter, the
Regional Trial Court on appeal shall not dismiss the
case if it has original jurisdiction thereof, but shall
decide the case in accordance with the preceding
section, without prejudice to the admission of
amended pleadings and additional evidence in the
interest of justice. (Sec. 8, Rule 40)
RULE 41
APPEALS FROM THE REGIONAL TRIAL COURTS
MODES OF APPEAL FROM THE DECISION OF THE
REGIONAL:
a. An ordinary appeal:
- The appeal to the Court of Appeals in cases decided
by the Regional Trial Court in the exercise of its
original jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the judgment
or final order appealed from and serving a copy
thereof upon the adverse party. No record on appeal
shall be required except in special proceedings and
other cases of multiple or separate appeals where
law on these Rules so require. In such cases, the
record on appeal shall be filed and served in like
manner. (Sec. 2(a), Rule 41)
b. Petition for review:
- The appeal to the Court of Appeals in cases decided
by the Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition for review in
accordance with Rule 42. (Sec. 2(b), Rule 41)
c. Appeal by certiorari:
- In all cases where only questions of law are raised or
involved, the appeal shall be to the Supreme Court
by petition for review on certiorari in accordance with
the Rule 45. (Sec. 2(c), Rule 41)
MODES OF APPEAL FROM THE REGIONAL TRIAL COURT
TO THE COURT OF APPEALS:
a. By writ of error (ordinary appeal) → where the
appealed judgment was rendered in a civil or criminal
action by the RTC in the exercise of its original
jurisdiction; or
b. By petition for review → where the judgment was
rendered by the RTC in the exercise of its appellate
jurisdiction. (Leynes vs. Former Tenth Division of the
CA, GR no. 154462, January 19, 2011)
APPLICATION OF RULE 41 ON ORDINARY APPEAL:
- Rule 41 applies to appeals from the judgment or final
order of the RTC in the exercise of its original
jurisdiction. This appeal is called “Ordinary Appeal”
(Sec. 2(a), Rule 41)
- Example: If a judgment by the RTC in an action for
specific performance is to be appealed from, Rule 41
will govern the appeal. This is because an action for
specific performance is initially filed with the said
court. Any judgment rendered by it on the case
would, then, be a judgment rendered in the exercise
of its original jurisdiction.
- On the other hand, if a litigant loses in the MTC and,
on appeal, loses in the RTC, the mode of appeal to
the CA is by way of a petition for review under Rule
42. This is because the decision of the RTC is one in
the exercise of its appellate jurisdiction.
WHEN TO APPEAL:
- The appeal shall be taken within 15 days from notice
of the judgment or final order appealed from. Where
CIVIL PROCEDURE 99
 CIVIL PROCEDURE
Morillo Notes
a record on appeal is required, the appellant shall file
a notice of appeal and a record on appeal within 30
days from notice of the judgment or final order. (Sec.
3, Rule 41)
- In habeas corpus cases, the appeal shall be taken
within 48 hours from notice of judgment or final
order. (Sec. 3, Rule 41)
APPELLATE COURT DOCKET AND OTHER LAWFUL
FEES:
- Within the period for taking an appeal, the appellant
shall pay to the clerk of the court which rendered the
judgment or final order appealed from, the full
amount of the appellate court docket and other
lawful fees. (Sec. 4, Rule 41)
- Proof of payment of said fees shall be transmitted to
the appellate court together with the original record
or the record on appeal. (Sec. 4, Rule 41)
NOTICE OF APPEAL:
- The notice of appeal shall indicate the parties to the
appeal, specify the judgment or final order or part
thereof appealed from, specify the court to which the
appeal is being taken, and state the material dates
showing the timeliness of the appeal. (Sec. 5, Rule
41)
RECORD ON APPEAL; FORM AND CONTENTS THEREOF:
- The full names of all the parties to the proceedings
shall be stated in the caption of the record on appeal
and it shall include the judgment or final order from
which the appeal is taken and, in chronological
order, copies of only such pleadings, petitions,
motions and all interlocutory orders as are related to
the appealed judgment or final order for the proper
understanding of the issue involved, together with
such data as will show that the appeal was perfected
on time. (Sec. 6, Rule 41)
- If an issue of fact is to be raised on appeal, the
record on appeal shall include by reference all the
evidence, testimonial and documentary, taken upon
the issue involved. (Sec. 6, Rule 41)
- The reference shall specify the documentary
evidence by the exhibit numbers or letters by which it
was identified when admitted or offered at the
hearing, and the testimonial evidence by the names
of the corresponding witnesses. (Sec. 6, Rule 41)
- If the whole testimonial and documentary evidence in
the case is to be included, a statement to that effect
will be sufficient without mentioning the names of the
witnesses or the numbers or letters of exhibits. (Sec.
6, Rule 41)
- Every record on appeal exceeding twenty (20) pages
must contain a subject index. (Sec. 6, Rule 41)
APPROVAL OF RECORD ON APPEAL:
- Upon the filing of the record on appeal for approval
and if no objection is filed by the appellee within five
(5) days from receipt of a copy thereof, the trial court
may approve it as presented or upon its own motion
or at the instance of the appellee, may direct its
amendment by the inclusion of any omitted matters
which are deemed essential to the determination of
the issue of law or fact involved in the appeal. (Sec.
7, Rule 41)
100 CIVIL PROCEDURE
- If the trial court orders the amendment of the record,
the appellant, within the time limited in the order, or
such extension thereof as may be granted, or if no
time is fixed by the order within ten (10) days from
receipt thereof, shall redraft the record by including
therein, in their proper chronological sequence, such
additional matters as the court may have directed
him to incorporate, and shall thereupon submit the
redrafted record for approval, upon notice to the
appellee, in like manner as the original draft. (Sec. 7,
Rule 41)
JOINT RECORD ON APPEAL:
- Where both parties are appellants, they may file a
joint record on appeal within the time fixed by
section 3 of this Rule, or that fixed by the court. (Sec.
8, Rule 41)
EFFECT OF PERFECTION OF APPEAL:
- A party's appeal by notice of appeal is deemed
perfected as to him upon the filing of the notice of
appeal in due time. (Sec. 9, Rule 41)
- A party's appeal by record on appeal is deemed
perfected as to him with respect to the subject
matter thereof upon the approval of the record on
appeal filed in due time. (Sec. 9, Rule 41)
- In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the
time to appeal of the other parties. (Sec. 9, Rule 41)
- In appeals by record on appeal, the court loses
jurisdiction only over the subject matter thereof upon
the approval of the records on appeal filed in due
time and the expiration of the appeal of the other
parties. (Sec. 9, Rule 41)
- In either case, prior to the transmittal of the original
record or the record on appeal, the court may issue
orders for the protection and preservation of the
rights of the parties which do not involve any matter
litigated by the appeal, approve compromises,
permit appeals of indigent litigants, order execution
pending appeal in accordance with 2 of Rule 39, and
allow withdrawal of the appeal. (Sec. 9, Rule 41)
DUTY OF CLERK OF COURT OF THE LOWER COURT
UPON PERFECTION OF APPEAL:
a. To verify the correctness of the original record or the
record on appeal, as the case may be aid to make
certification of its correctness;
b. To verify the completeness of the records that will
be, transmitted to the appellate court;
c. If found to be incomplete, to take such measures as
may be required to complete the records, availing of
the authority that he or the court may exercise for
this purpose; and
d. To transmit the records to the appellate court. (Sec.
10, Rule 41)
ADDITIONAL NOTES:
- Within 30 days after the perfection of all the appeals
in accordance with Sec. 9, Rule 41, it shall be the
duty of the clerk of court to perform the above-
mentioned duties. (Sec. 10, Rule 41)
- If the efforts to complete the records fail, he shall
indicate in his letter of transmittal the exhibits or
transcripts not included in the records being
 CIVIL PROCEDURE
Morillo Notes
transmitted to the appellate court, the reasons for
their non-transmittal, and the steps taken or that
could be taken to have them available. (Sec. 10, Rule
41)
- The clerk of court shall furnish the parties with copies
of his letter of transmittal of the records to the
appellate court. (Sec. 10, Rule 41)
TRANSCRIPT:
- Upon the perfection of the appeal, the clerk shall
immediately direct the stenographers concerned to
attach to the record of the case five (5) copies of the
transcripts of the testimonial evidence referred to in
the record on appeal. (Sec. 11, Rule 41)
- The stenographers concerned shall transcribe such
testimonial evidence and shall prepare and affix to
their transcripts an index containing the names of the
witnesses and the pages wherein their testimonies
are found, and a list of the exhibits and the pages
wherein each of them appears to have been offered
and admitted or rejected by the trial court. (Sec. 11,
Rule 41)
- The transcripts shall be transmitted to the clerk of
the trial court who shall thereupon arrange the same
in the order in which the witnesses testified at the
trial, and shall cause the pages to be numbered
consecutively. (Sec. 11, Rule 41)
TRANSMITTAL:
- The clerk of the trial court shall transmit to the
appellate court the original record or the approved
record on appeal within thirty (30) days from the
perfection of the appeal, together with the proof of
payment of the appellate court docket and other
lawful fees, a certified true copy of the minutes of the
proceedings, the order of approval, the certificate of
correctness, the original documentary evidence
referred to therein, and the original and three (3)
copies of the transcripts. (Sec. 12, Rule 41)
- Copies of the transcripts and certified true copies of
the documentary evidence shall remain in the lower
court for the examination of the parties. (Sec. 12,
Rule 41)
DISMISSAL OF APPEAL:
- Prior to the transmittal of the original record or the
record on appeal to the appellate court, the trial
court may motu propio or on motion dismiss the
appeal for having been taken out of time. (Sec. 13,
Rule 41)
RULE 42
PETITION FOR REVIEW FROM THE REGIONAL TRIAL
COURTS TO THE COURT OF APPEALS:
APPLICATION OF RULE 42:
- It applies to an appeal from the judgment or final
order of the RTC to the CA in cases decided by the
former in the exercise of its appellate jurisdiction.
(Guzman vs. Guzman, 693 SCRA 318)
- Example: Plaintiff received an adverse judgment in a
suit for collection of P350,000.00 filed with the MeTC
Manila. He appealed from the judgment of the lower
court with the appropriate RTC and lost again. The
judgment of the RTC is a judgment rendered by it in
the exercise of its appellate jurisdiction. If he desires
to appeal from this judgment, he should avail of a
petition for review under Rule 42.
WHEN TO APPEAL:
- Appeal shall be made within 15 days from the notice
of the decision sought to be reviewed or of the denial
of the petitioner’s motion for new trial or
reconsideration filed in due time after judgment. The
court may grant an additional period of 15 days only
provided the extension is sought (a) upon proper
motion, and (b) payment of the full amount of the
docket and other lawful fees and the deposit for
costs before the expiration of the reglementary
period. No further extension shall be granted except
for the most compelling reason and in no case to
exceed 15 days. (Sec. 1, Rule 42, Go vs. BPI
Finance, GR no. 199354, June 26, 2013)
HOW TO APPEAL:
- The appeal is made by filing a verified petition for
review with the CA, paying at the same time to the
clerk of said court the corresponding docket and
other lawful fees, depositing the amount of P500.00
for costs, and furnishing the RTC and the adverse
party with a copy of the petition. (Sec. 1, Rule 42)
- The appeal is perfected as to the petitioner upon the
timely filing of a petition for review and thepayment
of the corresponding docket and other lawful fees.
(Sec. 8(a), Rule 42)
- The petition shall be filed in the proper form required
in Sec. 2, Rule 42 stating a concise statement of the
metters involved, the issues raised, the specification
of errors of law or fact, or both, allegedly committed
by the trial court and the reasons or arguments relied
upon for the allowance of the appeal. The petitioner
shall also indicate the specific material dates
showing that the petition was filed on time (Sec. 2,
Rule 42).
- The failure to comply with any of the requirements in
Sec. 2, Rule 42 regarding the payment of the docket
and other lawful fees, the deposit for costs, proof of
service of the petition, and the contents of and the
documents which should accompany the petition
shall be sufficient ground for the dismissal of the
petition. (Sec. 3, Rule 42)\The CA may dismiss the
petition if it finds the same to be patently without
merit, prosecuted merely for delay, or that the
questions raised are too unsubstantial to require
consideration. (Sec. 4, Rule 42)
- If the Court does not dismiss the petition, it may
require the respondent to file a comment on the
petition within 10 days from notice. The respondent
shall file a comment, not a motion to dismiss. (Sec.
4, Rule 42)
- If the CA finds a prima facie that the lower court has
committed an error of fact or law that will warrant a
reversal or modification of the appealed decision, it
may, accordingly, give due course to the petition.
(Sec. 6, Rule 42)
- If the petition is given course, the CA may set the
case for oral argument or require the parties to
submit memoranda within a period of 15 days from
notice. The case shall be deemed submitted for
decision upon the filing of the last pleading or
memorandum required. (sec. 9, Rule 42)
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DOCTRINE OF RESIDUAL JURISDICTION:
- It applies also to Rule 42
- The "residual jurisdiction" of trial courts is available
at a stage in which the court is normally deemed to
have lost jurisdiction over the case or the subject
matter involved in the appeal. This stage is reached
upon the perfection of the appeals by the parties or
upon the approval of the records on appeal, but prior
to the transmittal of the original records or the
records on appeal. In either instance, the trial court
still retains its so-called residual jurisdiction to issue
protective orders, approve compromises, permit
appeals of indigent litigants, order execution pending
appeal, and allow the withdrawal of the appeal.
(Katon vs. Palanca, GR no. 151149, September 7,
2009)
EFFECT OF PERFECTION OF APPEAL:
- (a) Upon the timely filing of a petition for review and
the payment of the corresponding docket and other
lawful fees, the appeal is deemed perfected as to the
petitioner.
- The Regional Trial Court loses jurisdiction over the
case upon the perfection of the appeals filed in due
time and the expiration of the time to appeal of the
other parties.
- However, before the Court of Appeals gives due
course to the petition, the Regional Trial Court may
issue orders for the protection and preservation of
the rights of the parties which do not involve any
matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants,
order execution pending appeal in accordance with
section 2 of Rule 39, and allow withdrawal of the
appeal.
- (b) Except in civil cases decided under the Rule on
Summary Procedure, the appeal shall stay the
judgment or final order unless the Court of Appeals,
the law, or these Rules shall provide otherwise. (Sec.
8, Rule 42)
SUBMISSION FOR DECISION:
- If the petition is given due course, the Court of
Appeals may set the case for oral argument or
require the parties to submit memoranda within a
period of fifteen (15) days from notice. The case shall
be deemed submitted for decision upon the filing of
the last pleading or memorandum required by these
Rules or by the court itself. (Sec. 9, Rule 42)
RULE 43
APPEALS FROM THE COURT OF TAX APPEALS AND
QUASI-JUDICIAL AGENCIES TO THE COURT OF
APPEALS
SCOPE OF RULE 43:
- Rule 43 shall apply to appeals from judgments or
final orders of the CTA and from awards, judgments,
final orders or resolutions of or authorized by any
quasi-judicial functions. (Sec. 1, Rule 43)
102 CIVIL PROCEDURE
QUASI-JUDICIAL AGENCIES WHERE RULE 43 APPLY:
a. Civil Service Commission;
b. Central Board of Assessment Appeals;
c. Securities and Exchange Commission;
d. Office of the President;
e. Land Registration Authority;
f. Social Security Commission;
g. Civil Aeronautics Board;
h. Bureau of Patents;
i. Trademarks and Technology Transfer;
j. National Electrification Administration;
k. Energy Regulatory Board;
l. National Telecommunications Commission;
m. Department of Agrarian Reform under Republic Act
No. 6657;
n. Government Service Insurance System;
o. Employees Compensation Commission;
p. Agricultural Invention Board;
q. Insurance Commission;
r. Philippine Atomic Energy Commission;
s. Board of Investments;
t. Construction Industry Arbitration Commission; and
u. Voluntary arbitrators authorized by law. (Sec. 1, Rule
43)
WHEN RULE 43 DOES NOT APPLY:
- Rule 43 does not apply to judgments or final orders
issued under the Labor Code of the Philippines. (Sec.
2, Rule 43)
REVIEW OF DECISIONS OF THE NLRC:
- The remedy of a party aggrieved by the decision of
the NLRC is to promptly move for the
reconsideration of the decision and, if denied, to
timely file a special civil action for certiorari under
Rule 65 within 60 days from notice of decision. In
observance of the doctrine of hierarchy of courts, the
petition for certiorari should be filed with the CA. (St.
Martin Funeral Homes vs. NLRC, GR no. 130866,
September 16, 1988)
- Because of the St. Martin Case, all special civil
actions arising out of any decision, final resolution or
order of the NLRC FILED WITH THE sc after June 1,
1999, shall no longer be referred to the CA but shall
be dismissed. (AM No. 99-2-01-SC, February 9,
1999)
REVIEW OF DECISIONS OF VOLUNTARY ARBITRATORS
IN LABOR CASES:
- Decisions of voluntary arbitrators issued pursuant to
the Labor Code do not come within the ambit of Sec.
2, Rule 43. A petition for review under Rule 43 is the
proper remedy “just like those of the quasi-judicial
agencies, boards and commissions enumerated
therein, and consistent with the original purpose to
provide a uniform procedure for the appellate review
of adjudications of all quasi-judicial entities. (Royal
Plant Workers Union vs. Coca-Cola Bottlers Phil. -
Cebu, GR no. 198783, April 15, 2013)
APPEALS FROM THE SANDIGANBAYAN:
- Decisions and final orders of the Sandiganbayan
shall be appealable to the SC by petition for review
on certiorari raising pure questions of law in
accordance with Rule 45 of the ROC. (Sec. 7, RA
8249)
 CIVIL PROCEDURE
Morillo Notes
- Whenever, in any case decided by the
Sandiganbayan, the penalty of reclusion perpetua,
life imprisonment or death is imposed, the decision
shall be appealable to the Supreme Court in the
manner prescribed in the ROC. (Sec. 7, RA 8249)
REVIEW OF THE RULINGS OF THE OMBUDSMAN:
a. In Administrative Cases: Appeals from decisions of
the Ombudsman in administrative disciplinary
actions should be brought to the CA under Rule 43.
(Enemecio vs. Office of the Ombudsman, 419 SCRA
82)
b. In Criminal Cases: The ruling of the Ombudsman
shall be elevated to the SC by way of Rule 65.
APPEALS FROM JUDGMENT OF THE COURT OF TAX
APPEAL:
- A party adversely affected by a resolution of a
Division of the CTA on a motion for reconsideration
or new trial may file a petition for review with the CTA
En Banc (Sec. 11, RA 9282)
- A party adversely affected by a decision or ruling of
the CTA En Banc may file with the SC a verified
petition for review on certiorari pursuant to Rule 45.
REVIEW OF THE RESOLUTION OF THE SECRETARY OF
JUSTICE:
- The CA is clothed with jurisdiction to review the
resolution issued by the Secretary of the DOJ
through a petition for certiorari under Rule 65, ROC,
solely on the ground of grave abuse of discretion
amounting to lack of jurisdiction. (Alcaraz vs.
Gonzales, 533 Phil 796; Tan vs. Matsuura, GR no.
179003, January 9, 2013)
WHERE TO APPEAL:
- An appeal under this Rule may be taken to the Court
of Appeals within the period and in the manner
herein provided, whether the appeal involves
questions of fact, of law, or mixed questions of fact
and law. (Sec. 3, Rule 43)
PERIOD OF APPEAL:
- The appeal shall be taken within fifteen (15) days
from notice of the award, judgment, final order or
resolution, or from the date of its last publication, if
publication is required by law for its effectivity, or of
the denial of petitioner's motion for new trial or
reconsideration duly filed in accordance with the
governing law of the court or agency a quo.
- Only one (1) motion for reconsideration shall be
allowed.
- Upon proper motion and the payment of the full
amount of the docket fee before the expiration of the
reglementary period, the Court of Appeals may grant
an additional period of fifteen (15) days only within
which to file the petition for review. No further
extension shall be granted except for the most
compelling reason and in no case to exceed fifteen
(15) days. (Sec. 4, Rule 43)
HOW APPEAL TAKEN:
- Appeal shall be taken by filing a verified petition for
review in seven (7) legible copies with the Court of
Appeals, with proof of service of a copy thereof on
the adverse party and on the court or agency a quo.
The original copy of the petition intended for the
Court of Appeals shall be indicated as such by the
petitioner.
- Upon the filing of the petition, the petitioner shall pay
to the clerk of court of the Court of Appeals the
docketing and other lawful fees and deposit the sum
of P500.00 for costs. Exemption from payment of
docketing and other lawful fees and the deposit for
costs may be granted by the Court of Appeals upon
a verified motion setting forth valid grounds therefor.
If the Court of Appeals denies the motion, the
petitioner shall pay the docketing and other lawful
fees and deposit for costs within fifteen (15) days
from notice of the denial. (Sec. 5, Rule 43)
CONTENTS OF THE PETITION: The petition for review shall:
a. State the full names of the parties to the case,
without impleading the court or agencies either as
petitioners or respondents;
b. Contain a concise statement of the facts and issues
involved and the grounds relied upon for the review;
c. Be accompanied by a clearly legible duplicate
original or a certified true copy of the award,
judgment, final order or resolution appealed from,
together with certified true copies of such material
portions of the record referred to therein and other
supporting papers; and
d. Contain a sworn certification against forum shopping
as provided in the last paragraph of section 2, Rule
42.
e. The petition shall state the specific material dates
showing that it was filed within the period fixed
herein. (Sec. 6, Rule 43)
EFFECT OF FAILURE TO COMPLY WITH
REQUIREMENTS:
- The failure of the petitioner to comply with any of the
foregoing requirements regarding the payment of the
docket and other lawful fees, the deposit for costs,
proof of service of the petition, and the contents of
and the documents which should accompany the
petition shall be sufficient ground for the dismissal
thereof. (Sec. 7, Rule 43)
ACTION ON THE PETITION:
- The Court of Appeals may require the respondent to
file a comment on the petition not a motion to
dismiss, within ten (10) days from notice, or dismiss
the petition if it finds the same to be patently without
merit, prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to
require consideration. (Sec. 8, Rule 43)
CONTENTS OF COMMENT:
- The comment shall be filed within ten (10) days from
notice in seven (7) legible copies and accompanied
by clearly legible certified true copies of such
material portions of the record referred to therein
together with other supporting papers. (Sec. 9, Rule
43)
- The comment shall (a) point out insufficiencies or
inaccuracies in petitioner's statement of facts and
issues; and (b) state the reasons why the petition
should be denied or dismissed. (Sec. 9, Rule 43)
- A copy thereof shall be served on the petitioner, and
proof of such service shall be filed with the Court of
Appeals. (Sec. 9, Rule 43)
CIVIL PROCEDURE 103
 CIVIL PROCEDURE
Morillo Notes
DUE COURSE:
- If upon the filing of the comment or such other
pleadings or documents as may be required or
allowed by the Court of Appeals or upon the
expiration of the period for the filing thereof, and on
the records the Court of Appeals finds prima facie
that the court or agency concerned has committed
errors of fact or law that would warrant reversal or
modification of the award, judgment, final order or
resolution sought to be reviewed, it may give due
course to the petition; otherwise, it shall dismiss the
same. (Sec. 10, Rule 43)
- The findings of fact of the court or agency
concerned, when supported by substantial evidence,
shall be binding on the Court of Appeals. (Sec. 10,
Rule 43)
TRANSMITTAL OF RECORD:
- Within fifteen (15) days from notice that the petition
has been given due course, the Court of Appeals
may require the court or agency concerned to
transmit the original or a legible certified true copy of
the entire record of the proceeding under review.
(Sec. 11, Rule 43)
- The record to be transmitted may be abridged by
agreement of all parties to the proceeding. (Sec. 11,
Rule 43)
- The Court of Appeals may require or permit
subsequent correction of or addition to the record.
(Sec. 11, Rule 43)
EFFECT OF APPEAL:
- The appeal shall not stay the award, judgment, final
order or resolution sought to be reviewed unless the
Court of Appeals shall direct otherwise upon such
terms as it may deem just. (Sec.12, Rule 43)
SUBMISSION FOR DECISION:
- If the petition is given due course, the Court of
Appeals may set the case for oral argument or
require the parties to submit memoranda within a
period of fifteen (15) days from notice. The case shall
be deemed submitted for decision upon the filing of
the last pleading or memorandum required by these
Rules or by the court of Appeals. (Sec. 13, Rule 43)
PROCEDURE IN THE COURT OF APPEALS
[Rule 44 to Rule 55]
RULE 44
ORDINARY APPEALED CASES
Section 1: Title of cases
TITLE OF CASES:
- In all cases appealed to the Court of Appeals under
Rule 41, the title of the case shall remain as it was in
the court of origin, but the party appealing the case
104 CIVIL PROCEDURE
shall be further referred to as the appellant and the
adverse party as the appellee. (Sec. 1, Rule 44)
Section 2: Counsel and guardians
COUNSEL AND GUARDIANS:
- The counsel and guardians ad litem of the parties in
the court of origin shall be respectively considered as
their counsel and guardians ad litem in the Court of
Appeals.
- When others appear or are appointed, notice thereof
shall be served immediately on the adverse party and
filed with the court. (Sec. 2, Rule 44)
Section 3: Order of transmittal of record
ORDER OF TRANSMITTAL OF RECORD:
- If the original record or the record on appeal is not
transmitted to the Court of Appeals within thirty (30)
days after the perfection of the appeal, either party
may file a motion with the trial court, with notice to
the other, for the transmittal of such record or record
on appeal. (Sec. 3, Rule 44)
Section 4: Docketing of case
DOCKETING OF CASE:
- Upon receiving the original record or the record on
appeal and the accompanying documents and
exhibits transmitted by the lower court, as well as the
proof of payment of the docket and other lawful fees,
the clerk of court of the Court of Appeals shall
docket the case and notify the parties thereof. (Sec.
4, Rule 44)
- Within ten (10) days from receipt of said notice, the
appellant, in appeals by record on appeal, shall file
with the clerk of court seven (7) clearly legible copies
of the approved record on appeal, together with the
proof of service of two (2) copies thereof upon the
appellee. (Sec. 4, Rule 44)
- Any unauthorized alteration, omission or addition in
the approved record on appeal shall be a ground for
dismissal of the appeal. (Sec. 4, Rule 44)
Section 5: Completion of record
COMPLETION OF RECORD:
- Where the record of the docketed case is
incomplete, the clerk of court of the Court of Appeals
shall so inform said court and recommend to it
measures necessary to complete the record. It shall
be the duty of said court to take appropriate action
towards the completion of the record within the
shortest possible time. (Sec. 5, Rule 44)
Section 6: Dispensing with complete record
DISPENSING WITH COMPLETE RECORD:
- Where the completion of the record could not be
accomplished within a sufficient period allotted for
said purpose due to insuperable or extremely difficult
 CIVIL PROCEDURE
Morillo Notes
causes, the court, on its own motion or on motion of
any of the parties, may declare that the record and
its accompanying transcripts and exhibits so far
available are sufficient to decide the issues raised in
the appeal, and shall issue an order explaining the
reasons for such declaration. (Sec. 6, Rule 44)
Section 7: Appellant’s brief
APPELLANT’S BRIEF:
- It shall be the duty of the appellant to file with the
court, within forty-five (45) days from receipt of the
notice of the clerk that all the evidence, oral and
documentary, are attached to the record, seven (7)
copies of his legibly typewritten, mimeographed or
printed brief, with proof of service of two (2) copies
thereof upon the appellee. (Sec. 7, Rule 44)
Section 8: Appellee’s brief
APPELLEE’S BRIEF:
- Within forty-five (45) days from receipt of the
appellant's brief, the appellee shall file with the court
seven (7) copies of his legibly typewritten,
mimeographed or printed brief, with proof of service
of two (2) copies thereof upon the appellant. (Sec. 8,
Rule 44)
Section 9: Appellant’s reply brief
APPELLANT’S REPLY BRIEF:
- Within twenty (20) days from receipt of the appellee's
brief, the appellant may file a reply brief answering
points in the appellee's brief not covered in his main
brief. (Sec. 9, Rule 44)
Section 10: Time for filing memoranda
in special cases
TIME FOR FILING MEMORANDA IN SPECIAL CASES:
- In certiorari, prohibition, mandamus, quo warranto
and habeas corpus cases, the parties shall file in lieu
of briefs, their respective memoranda within a non-
extendible period of thirty (30) days from receipt of
the notice issued by the clerk that all the evidence,
oral and documentary, is already attached to the
record. (Sec. 10, Rule 44)
- The failure of the appellant to file his memorandum
within the period therefor may be a ground for
dismissal of the appeal. (Sec. 10, Rule 44)
Section 11: Several appellants or appellees or several
counsel for each party
SEVERAL APPELLANTS OR APPELLEES OR SEVERAL
COUNSEL FOR EACH PARTY:
- Where there are several appellants or appellees,
each counsel representing one or more but not all of
them shall be served with only one copy of the briefs.
When several counsel represent one appellant or
appellee, copies of the brief may be served upon any
of them. (Sec. 11, Rule 44)
Section 12: Extension of time for filing brief
EXTENSION OF TIME FOR FILING BRIEF:
- Extension of time for the filing of briefs will not be
allowed, except for good and sufficient cause, and
only if the motion for extension is filed before the
expiration of the time sought to be extended. (sec.
12, Rule 44)
Section 13: Contents of appellant’s brief
CONTENTS OF APPELLANT’S BRIEF:
a. A subject index of the matter in the brief with a digest
of the arguments and page references, and a table of
cases alphabetically arranged, textbooks and
statutes cited with references to the pages where
they are cited;
b. An assignment of errors intended to be urged, which
errors shall be separately, distinctly and concisely
stated without repetition and numbered
consecutively;
c. Under the heading "Statement of the Case," a clear
and concise statement of the nature of the action, a
summary of the proceedings, the appealed rulings
and orders of the court, the nature of the judgment
and any other matters necessary to an
understanding of the nature of the controversy with
page references to the record;
d. Under the heading "Statement of Facts," a clear and
concise statement in a narrative form of the facts
admitted by both parties and of those in controversy,
together with the substance of the proof relating
thereto in sufficient detail to make it clearly
intelligible, with page references to the record;
e. A clear and concise statement of the issues of fact or
law to be submitted, to the court for its judgment;
f. Under the heading "Argument," the appellant's
arguments on each assignment of error with page
references to the record. The authorities relied upon
shall be cited by the page of the report at which the
case begins and the page of the report on which the
citation is found;
g. Under the heading "Relief," a specification of the
order or judgment which the appellant seeks; and
h. In cases not brought up by record on appeal, the
appellant's brief shall contain, as an appendix, a
copy of the judgment or final order appealed from.
(Sec. 13, Rule 44)
Section 14: Contents of appellee’s brief
CONTENTS OF APPELLEE’S BRIEF:
a. A subject index of the matter in the brief with a digest
of the arguments and page references, and a table of
cases alphabetically arranged, textbooks and
statutes cited with references to the pages where
they are cited;
b. Under the heading "Statement of Facts," the
appellee shall state that he accepts the statement of
facts in the appellant's brief, or under the heading
CIVIL PROCEDURE 105
 CIVIL PROCEDURE
Morillo Notes
"Counter-Statement of Facts," he shall point out
such insufficiencies or inaccuracies as he believes
exist in the appellant's statement of facts with
references to the pages of the record in support
thereof, but without repetition of matters in the
appellant's statement of facts; and
c. Under the heading "Argument," the appellee shall set
forth his arguments in the case on each assignment
of error with page references to the record. The
authorities relied on shall be cited by the page of the
report at which the case begins and the page of the
report on which the citation is found. (Sec. 14, Rule
44)
Section 15: Questions that may be
raised on appeal
QUESTIONS THAT MAY BE RAISED ON APPEAL:
- Whether or not the appellant has filed a motion for
new trial in the court below he may include in his
assignment of errors any question of law or fact that
has been raised in the court below and which is
within the issues framed by the parties. (Sec. 15,
Rule 44)
RULE 45
APPEAL BY CERTIORARI TO
THE SUPREME COURT
Section 1: Filing of petition with Supreme Court
APPLICATION OF RULE 45:
a. Appeal from a judgment or final order of the RTC in
cases where only questions of law are raised or are
involved, and the case is one decided by said court
in the exercise of its original jurisdiction. (Sec, 2(c),
Rule 41);
- This rule applies only when the decision of the
RTC is in the exercise of its original jurisdiction
because when the decision is rendered by the
RTC in the exercise of its appellate jurisdiction,
regardless of whether the appellant raises
questions of fact, questions of law, or mixed
questions of fact and law, the appeal shall be
brought to the CA by filing a petition for review
under Rule 42, and even if only a question law is
raised. (Quezon City vs. ABS-CBN,567 SCRA
496)
b. Appeal from the judgment, final order, or resolutions
of the CA, where the petition shall raise only
questions of law distinctly set forth (Sec. 1, Rule 45);
- The filing of a petition for certiorari under Rule 65
from the judgment of the CA is availing of an
improper remedy. The petition would merit an
outright dismissal. (Romullo vs. Samahang
Magkakapitbahay, GR no. 180687, October 6,
2010)
c. Appeal from the judgment, final order, or resolutions
of the Sandiganbayan where the petition shall raise
only questions of law distinctly set forth. (Sec. 1,
Rule 45);
106 CIVIL PROCEDURE
d. Appeal from the decision or ruling of the Court of Tax
Appeals En Banc (Sec. 11, RA 9282; Sec. 1, Rule 45
as amended by AM no. 07-7-12-SC);
e. Appeals from a judgment or final order in a petition
for a writ of amparo to the Supreme Court;
- While in other cases of appeal under Rule 45,
only questions of law may be raised, here the
questions of fact, or both law and fact (AM no.
07-9-12-SC, Rules on the Writ of Amparo (Sec.
19)
f. Appeals from a judgment or final order in a petition
for a writ of habeas data:
- The appeal may raise questions of fact or law, or
both. (AM no. 08-1-16-SC, Rule on the Writ of
Habeas Data (Sec. 19))
PROVISIONAL REMEDIES:
- The petition for review on certiorari under Rule 45
may include an application for a writ of preliminary
injunction or other provisional remedies. The
petitioner may seek the same provisional remedies
by verified motion filed in the same action or
proceeding at any time during its pendency. (AM no.
07-7-12-SC)
QUESTIONS OF LAW; QUESTIONS OF FACT:
QUESTIONS OF LAW QUESTIONS OF FACT
Where there is doubt as to Where the doubt arises as
what the law is on a certain to the truth or falsity of the
state of facts. alleged facts.
When the doubt or When the doubt or
controversy concerns the difference arises as to the
correct application of law or truth or falsehood of facts.
jurisprudence to a certain
set of facts.
Source: Republic vs. Malabana, 632 SCRA 338; ASIAN
TERMINALS, Inc. vs. SImon Enterprises, 692 SCRA 87)
TEST TO DETERMINE QUESTIONS OF LAW OR
QUESTIONS OF FACT:
- The test of whether a question is one or law or fact is
whether the appellate can determine the issue raised
without reviewing or evaluating the evidence, in
which case, it is a question of law; otherwise, it is a
question of fact. (Jarantilla vs. Jarantilla, 636 SCRA
299)
- A request in a Rule 45 petition for the Court to
examine the testimony of a witness in the transcript
of stenographic notes concerning his alleged
testimonial proof of damages cannot be
accommodated and the substantive issue of whether
or not one is entitled to moral and exemplary
damages, as well as attorney’s fees, is a factual
issue which is beyond the province of a petition for
review on certiorari. (Vda. de Formose vs. PNB, GR
no. 154704, June 1, 2011)
- The question of whether the ownership of a certain
person has been sustained with finality is factual in
nature since it requires the presentation of the
evidence. (Republic vs. Malabana, Supra)
- The question of whether a person acted with good
faith or bad faith in purchasing and registering real
 CIVIL PROCEDURE
Morillo Notes
property is a question of fact. (Heirs of Cabigas vs.
Limbaco, GR no. 175291, July 27, 2011)
- An assertion that no tenancy relationship existed
between the parties is a question of fact beyond the
province of the Court in a petition for review under
Rule 45 of the ROC, in which only questions of law
may be raised. Absent any of the obtaining
exceptions to this rule, the findings of facts
(especially by the CA) are binding on the SC. (Reyes
vs. Mauricio, 636 SCRA 79)
FINDINGS OF FACTS, NOT ORDINARILY REVIEWED;
FACTUAL-ISSUE-BAR RULE:
- The jurisdiction of the SC in cases brought before it
from the CA is limited to reviewing and revising the
errors of law imputed to it, its findings of fact being
conclusive (Republic vs. Bellate, GR no. 175685,
August 7, 2013)
- Findings of fact of the CA, when supported by
substantial evidence, are conclusive and binding on
the parties and are not reviewable by the Court.
(Office of the Ombudsman vs. Bernardo, 692 SCRA
557)
- However, the Higher Court is not entirely precluded
from reviewing and reversing the findings of the
lower court if it is not convinced that they conform to
the evidence on record and to its own impressions of
the credibility of the witnesses. (Sps. Surtida vs.
Rural Bank of Malinao Albay, 511 SCRA 507)
Stress iNTERNATIONAL, 576 scra 24; Jarantilla vs.
Jarantilla, Supra)
APPEAL FROM A JUDGMENT IN A PETITION FOR A WRIT
OF AMPARO OR WRIT OF HABEAS DATA; WRIT OF
KALIKASAN:
- Any party, in a petition for writ of amparo, may
appeal from the final order or judgment of the court
to the SC under Rule 45. Although Rule 45 mandates
raising only questions f law. (Sec. 1, Rule 45)
- An appeal from a judgment in a petition for writ of
amparo, by way of exception to the general rule
under Rule 45, may raise not only questions of law
but also questions of facts, or both questions of law
and fact. (Sec. 19, rule on the Writ of Amparo)
- An appeal from a judgment in a petition for writ of
habeas data may be appealed to the SC under Rule
45. Said appeal, may also raise questions of fact or
law, or both. (Sec.19, Rule on Writ of Habeas Data)
- An appeal to the SC under Rule 45 in a petition for a
writ of kalikasan may raise question of fact. (Sec. 16,
Rule 7, Writ of Kalikasan, Part III, Rules of Procedure
for Environmental Cases:
DIFFERENCE BETWEEN CERTIORARI RULE 45 AND
CERTIORARI UNDER RULE 65:
RULE 45 RULE 65
CERTIORARI CERTIORARI

Mode of Appeal; A continuation A Special Civil Action that is an

REVIEW IS ONLY OF THE ERRORS OF THE APPELLATE
of the appellate process over original action and not a mode
COURT: the original cases of appeal; Not part of the
- Where a case was appealed to the CA, the decision (A Petition for Review) appellate process but an
of which was subsequently appealed to the SC, it is independent action
only the errors of the CA which is reviewed by the SC (Original Civil Action)
in a petition for review on certiorari, and not those of
the trial court, quasi-judicial agency, tribunal or Seeks to review final judgments Directed against an
officer which rendered the decision in the first or final orders interlocutory order or matters
instance. The SC finds it imperative to refrain from where no appeal may be taken
from
conducting further scrutiny of the findings of the trial
court. To do so would convert the SC into a trier of
Raises questions of law Raises questions of jurisdiction
facts. (Primo vs. Mendoza, GR no. 172532,
November 20, 2013)
Must be filed within 15 days Shall be filed not later than 60
from notice of judgments, final days from notice of judgment,
WHEN QUESTIONS OF FACT MAY BE PASSED UPON IN A order or resolution appealed order or resolution sought to be
RULE 45 PETITION: from assailed.
a. The conclusion of the CA is grounded entirely on
speculations, surmises and conjectures; Does not require a prior motion Generally requires a prior
b. The interference made is manifestly mistaken, absurd for reconsideration motion for reconsideration
or impossible;
c. There is a grave abuse of discretion; Stays the judgment appealed Does not stay the judgment or
d. The judgment is based on misapprehension of facts; from order subject of the petition,
unless enjoyed or restrained
e. The findings of facts are conflicting;
f. The CA, in making its findings, went beyond the
The parties are the original The tribunal, board, officer
issues if the case and the same is contrary to the parties with the appealing party exercising judicial or quasi-
admissions of both appellant and appellee; as the petitioner and the judicial functions is impleaded
g. The findings of fact of the CA ARE CONTRARY TO adverse party as respondent as respondent. In other words,
THOSE OF THE TRIAL COURT; without impleading the lower the parties are the aggrieved
h. the findings of fact are conclusions without citation court or its judge. party against the lower court or
of specific evidence on which they are based; quasi-judicial agency and the
i. the facts set forth in the petition, as well as in the prevailing parties, who thereby
respectively become the
petitioner’s main and reply briefs, are not disputed
petitioner and respondent.
by the respondents; or
j. The findings of fact of the CA are premised on the Filed only with the SC may be filed with the RTC, CA,
supposed absence of evidence and contradicted by or SC
the evidence on record. (Golden Delta Sales vs. Pre-

CIVIL PROCEDURE 107

 CIVIL PROCEDURE
Morillo Notes
Source: Rule 41, 45,and 65; KEPCO Phils vs. CIR, 636 SCRA
166; Fortune Guarantee vs. CA, 379 SCRA 7; the Bases
Conversion vs. Uy, 506 SCRA 524; Systems Factors vs.
NLRC, 346 SCRA 149; Yasuda vs. CA, 330 SCRA 385)
WHEN RULE 65 PETITION IS TREATED AS A RULE 45
PETITION:
A. when the petition has been filed within the 15-day
period reglementary period;
B. When public welfare and the advancement of public
policy dictate such treatment;
C. When the broader interests of justice require such
treatment;
D. When the writs issued were null and void; or
E. When the questioned decision or order amounts to
an oppressive exercise of judicial authority. (Dongon
vs. Rapid Movers, GR no. 163431, August 28, 2013)
Section 2: Time for filing; extension
TIME FOR FILING; EXTENSION:
- The petition shall be filed within fifteen (15) days from
notice of the judgment or final order or resolution
appealed from, or of the denial of the petitioner's
motion for new trial or reconsideration filed in due
time after notice of the judgment. (Sec. 2, Rule 45)
EXTENSION FOR THE TIME OF FILING:
- On motion duly filed and served, with full payment of
the docket and other lawful fees and the deposit for
costs before the expiration of the reglementary
period, the Supreme Court may for justifiable
reasons grant an extension of thirty (30) days only
within which to file the petition. (Sec. 2, Rule 45)
Section 3: Docket and other lawful fees;
proof of service of petition
DOCKET AND OTHER LAWFUL FEES:
- Unless he has thereto done so, the petitioner shall
pay the corresponding docket and other lawful fees
to the clerk of court of the Supreme Court and
deposit the amount of P500.00 for costs at the time
of the filing of the petition. (Sec. 3, Rule 45)
PROOF OF SERVICE OF PETITION:
- Proof of service of a copy, thereof on the lower court
concerned and on the adverse party shall be
submitted together with the petition. (Sec. 3, Rule 45)
Section 4: Contents of petition
CONTENTS OF PETITION:
- The petition shall be filed in eighteen (18) copies,
with the original copy intended for the court being
indicated as such by the petitioner and shall:
a. state the full name of the appealing party as
the petitioner and the adverse party as
respondent, without impleading the lower
courts or judges thereof either as petitioners
or respondents;
b. indicate the material dates showing when
notice of the judgment or final order or
108 CIVIL PROCEDURE
resolution subject thereof was received,
when a motion for new trial or
reconsideration, if any, was filed and when
notice of the denial thereof was received;
c. set forth concisely a statement of the
matters involved, and the reasons or
arguments relied on for the allowance of the
petition;
d. be accompanied by a clearly legible
duplicate original, or a certified true copy of
the judgment or final order or resolution
certified by the clerk of court of the court a
quo and the requisite number of plain
copies thereof, and such material portions
of the record as would support the petition;
and
e. contain a sworn certification against forum
shopping as provided in the last paragraph
of section 2, Rule 42. (Sec. 4, Rule 45)
Section 5: Dismissal or denial of petition
DISMISSAL OR DENIAL OF PETITION:
- The failure of the petitioner to comply with any of the
foregoing requirements regarding the payment of the
docket and other lawful fees, deposit for costs, proof
of service of the petition, and the contents of and the
documents which should accompany the petition
shall be sufficient ground for the dismissal thereof.
(Sec. 5, Rule 45)
- The Supreme Court may on its own initiative deny
the petition on the ground that the appeal is without
merit, or is prosecuted manifestly for delay, or that
the questions raised therein are too unsubstantial to
require consideration. (Sec. 5, Rule 45)
Section 6: Review discretionary
APPEAL OR REVIEW UNDER RULE 45 IS NOT A MATTER
OF RIGHT:
- An appeal or review under Rule 45 is not a matter of
right, but of sound judicial discretion, and will be
granted only when special and important reasons
could justify the petition. (Sec. 6, Rule 45)
- Every appeal to the SC is not a matter of right, but of
sound judicial discretion with the exception of cases
where the death penalty or reclusion perpetua is
imposed. (People vs. Flores, 481 SCRA 451)
EXAMPLES OF REASONS WHICH THE COURT MAY
CONSIDER IN ALLOWING PETITIONS UNDER RULE 45:
a. When the court below has decided a question of
substance not yet determined by the SC;
b. When the court below decided a question of
substance in a way that is probably not in accord
with law or the applicable decisions of the SC; and
c. When the court below has departed from the
accepted and usual course of judicial proceedings,
or so far sanctioned such departure by a lower court,
as to call for the exercise of the power of supervision
of the SC. (Sec. 6, Rule 45)
Section 7: Pleadings and documents that
 CIVIL PROCEDURE
Morillo Notes
may be required; sanctions
PLEADINGS AND DOCUMENTS THAT MAY BE
REQUIRED; SANCTIONS:
- For purposes of determining whether the petition
should be dismissed or denied pursuant to section 5
of this Rule, or where the petition is given due course
under section 8 hereof, the Supreme Court may
require or allow the filing of such pleadings, briefs,
memoranda or documents as it may deem necessary
within such periods and under such conditions as it
may consider appropriate, and impose the
corresponding sanctions in case of non-filing or
unauthorized filing of such pleadings and documents
or non-compliance with the conditions therefor. (Sec.
7, Rule 45)
Section 8: Due Course; elevation of records
DUE COURSE; ELEVATION OF RECORDS:
- If the petition is given due course, the Supreme
Court may require the elevation of the complete
record of the case or specified parts thereof within
fifteen (15) days from notice. (Sec. 8, Rule 45)
Section 9: Rule applicable to both
civil and criminal cases
RULE APPLICABLE TO BOTH CIVIL AND CRIMINAL
CASES:
- The mode of appeal prescribed in this Rule shall be
applicable to both civil and criminal cases, except in
criminal cases where the penalty imposed is death,
reclusion perpetua or life imprisonment. (Sec. 9, Rule
45)
RULE 46
ORIGINAL CASES
Section 1: Title of cases
TITLE OF CASES:
- In all cases originally filed in the Court of Appeals,
the party instituting the action shall be called the
petitioner and the opposing party the respondent.
(Sec. 1, Rule 46)
Section 2: To what actions applicable
APPLICATION OF RULE 46:
- This Rule shall apply to original actions for certiorari,
prohibition, mandamus and quo warranto. (Sec. 2,
Rule 46)
- Except as otherwise provided, the actions for
annulment of judgment shall be governed by Rule 47,
for certiorari, prohibition and mandamus by Rule 65,
and for quo warranto by Rule 66. (Sec. 2, Rule 46)
Section 3: Contents and filing of petition; effect of non-
compliance with requirements
CONTENTS OF THE PETITION UNDER RULE 46:
- The petition shall contain the full names and actual
addresses of all the petitioners and respondents, a
concise statement of the matters involved, the
factual background of the case, and the grounds
relied upon for the relief prayed for. (Sec. 3, Rule 46)
- In actions filed under Rule 65, the petition shall
further indicate the material dates showing when
notice of the judgment or final order or resolution
subject thereof was received, when a motion for new
trial or reconsideration, if any, was filed and when
notice of the denial thereof was received. (Sec. 3,
Rule 46; SC Circular no. 39-98)
- The petitioner shall also submit together with the
petition a sworn certification that he has not
theretofore commenced any other action involving
the same issues in the Supreme Court, the Court of
Appeals or different divisions thereof, or any other
tribunal or agency; if there is such other action or
proceeding, he must state the status of the same;
and if he should thereafter learn that a similar action
or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5)
days therefrom. (Sec. 3, Rule 46)
PERIOD OF FILING:
- It shall be filed in seven (7) clearly legible copies
together with proof of service thereof on the
respondent with the original copy intended for the
court indicated as such by the petitioner, and shall
be accompanied by a clearly legible duplicate
original or certified true copy of the judgment, order,
resolution, or ruling subject thereof, such material
portions of the record as are referred to therein, and
other documents relevant or pertinent thereto. (Sec.
3, Rule 46)
- The certification shall be accomplished by the proper
clerk of court or by his duly authorized
representative, or by the proper officer of the court,
tribunal, agency or office involved or by his duly
authorized representative. The other requisite
number of copies of the petition shall be
accompanied by clearly legible plain copies of all
documents attached to the original. (Sec. 3, Rule 46)
PAYMENT OF DOCKET FEES:
- The petitioner shall pay the corresponding docket
and other lawful fees to the clerk of court and
deposit the amount of P500.00 for costs at the time
of the filing of the petition. (Sec. 3, Rule 46)
EFFECT OF NON-COMPLIANCE WITH THE
REQUIREMENTS:
- The failure of the petitioner to comply any of the
requirements shall be sufficient ground for the
dismissal of the petition. (Sec. 3, Rule 46)
Section 4: Jurisdiction over person of respondent; How
CIVIL PROCEDURE 109
 CIVIL PROCEDURE
Morillo Notes
acquired
HOW THE COURT ACQUIRES JURISDICTION OVER THE
PERSON OF THE RESPONDENT:
- The court shall acquire jurisdiction over the person of
the respondent by the service on him of its order or
resolution indicating its initial action on the petition or
by his voluntary submission to such jurisdiction.
(Sec. 4, Rule 46)
Section 5: Action by the court
ACTION BY THE COURT:
- The court may dismiss the petition outright with
specific reasons for such dismissal or require the
respondent to file a comment on the same within ten
(10) days from notice. Only pleadings required by the
court shall be allowed. (Sec. 5, Rule 46)
- All other pleadings and papers, may be filed only
with leave of court. (Sec. 5, Rule 46)
Section 6: Determination of factual issues
DETERMINATION OF FACTUAL ISSUES:
- Whenever necessary to resolve factual issues, the
court itself may conduct hearings thereon or
delegate the reception of the evidence on such issue
to any of its members or to an appropriate court,
agency or office. (Sec. 6, Rule 46)
Section 7: Effect of failure to file comment
EFFECT OF FAILURE TO FILE COMMENT:
- When no comment is filed by any of the
respondents, the case may be decided on the basis
of the record, without prejudice to any disciplinary
action which the court may take against the
disobedient party. (Sec. 7, Rule 46)
RULE 47
ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND
RESOLUTIONS
NATURE OF THE ACTION:
- An action for annulment of judgment is a remedy in
law independent of the case where the judgment
sought to be annulled was rendered. it is resorted to
in cases where the ordinary remedies of new trial,
appeal, petition for relief from judgment, or other
appropriate remedies are no longer available through
no fault of the petitioner. (Alaban vs. CA, 470 SCRA
697)
GROUNDS FOR ANNULMENT:
a. Extrinsic Fraud; and
b. Lack of Jurisdiction (Sec. 2, Rule 47)
c. Denial of due process (Diona vs. Balangue, 688
SCRA 22)
110 CIVIL PROCEDURE
EXTRINSIC FRAUD:
- Fraud is regarded as extrinsic where it prevents a
party from having a trial or from presenting his entire
case to the court, or where it operates upon matters
pertaining not to the judgment itself but to the
manner in which it is procured. (Alaban vs. CA, 470
SCRA 697; Gochan vs. Mancao, GR no. 182314,
November 13, 2013)
- This kind of fraud prevents the aggrieved party from
having a trial or presenting his case to the court, or is
used to procure the judgment without fair
submission of the controversy, as when there is a
false promise of a compromise or when one is kept
ignorant of the suit. (Villanueva vs. Nite, 496 SCRA
459)
- In other words, Extrinsic fraud exists when there is a
fraudulent act committed by the prevailing party
outside of the trial of the case, whereby the defeated
party deception is practiced on him by the prevailing
party. (Alba vs. CA, 465 SCRA 495)
FORGERY OR PERJURY:
- the use of forged instruments or perjured
testimonies during trial is not an extrinsic fraud. Such
evidence does not preclude a party’s participation in
the trial. (Bobis vs. CA, 348 SCRA 23)
- Offering manufactured evidence is intrinsic fraud.
Intrinsic fraud is not sufficient to annul a judgment.
(Conde vs. IAC, 144 SCRA 144)
LACK OF JURISDICTION AS A GROUND FOR
ANNULMENT UNDER RULE 47:
- This refers to either lack of jurisdiction over the
person of the defending party or over the subject
matter of the claims. Where the court has jurisdiction
over the defendant and over the subject matter of the
case, its decision will not be voided on the ground of
absence of jurisdiction. (Republic vs. G Holdings,
475 SCRA 608)
- The petitioner must show not a mere grave abuse of
discretion but an absolute lack of jurisdiction. The
concept of lack of jurisdiction, as a ground to annul a
judgment, does not embrace abuse of discretion.
(Republic vs. G Holdings, Supra)
- In a petition for annulment of judgment based on
lack of jurisdiction, the petitioner must show an
absolute lack of authority on the part of the court to
hear and decide the case. There would be no valid
ground to grant the petition for annulment where the
error raised pertains to the trial court’s exercise of
jurisdiction, not the absence of jurisdiction. (Heirs of
Maura So vs. Obliosca, 542 SCRA 406)
PERIOD FOR FILING THE ACTION:
- If based on extrinsic fraud → the action must be filed
within 4 years from its discovery.
- If based on lack of jurisdiction → the action must be
brought before the action is barred by laches or
estoppel. (Sec. 3, Rule 47)
WHO MAY FILE THE ACTION:
- The petitioner need not be a party to the judgment
sought to be annulled to acquire personality to file
the action for annulment of judgment. What is
essential is that the petitioner is one who can prove
his allegation that the judgment was obtained by the
 CIVIL PROCEDURE
Morillo Notes
use of fraud and collusion, and that he was affected
thereby. (Alaban vs. CAm 470 SCRA 697)
- An action for annulment can be filed by one who was
not a party to the action in which the assailed
judgment was rendered. It is a remedy in law
independent of the case where the judgment sought
to be annulled is promulgated. (Villanueva vs. Nite,
496 SCRA 459)
BASIC PROCEDURE:
- A petition for annulment of judgment filed with the
CA shall observe the procedure in ordinary civil
cases. Should the CA find a trial necessary, the
reception of evidence may be referred to a member
of the court or to a judge of a RTC (Sec. 6, Rule 47).
A petition filed with the RTC shall also be treated as
an ordinary civil action (Sec. 10, Rule 47)
- An action for annulment of a judgment although
treated as an ordinary civil action, departs from the
usual norm because the court, upon the filing of the
petition, may make an outright dismissal of the
petition as long as it has specific reasons for its
dismissal. This dismissal may be made even before
summons are served. It is only when the court finds a
prima facie merit in the petition shall summons be
served on the respondent. (Sec. 5, Rule 47)
- When a court finds no substantial merit in a petition
for annulment of judgment, while it may dismiss the
petition outright, it shall clearly set out the specific
reasons for such dismissal. (Castigador vs. Nicolas,
692 SCRA 333)
EFFECT OF JUDGMENT OF ANNULMENT:
- A judgment of annulment shall set aside the
questioned judgment or final order or resolution and
render the same null and void, without prejudice to
the original action being refiled in the proper court.
However, where the judgment or final order or
resolution is set aside on the ground of extrinsic
fraud, the court may on motion order the trial court to
try the case as if a timely motion for new trial had
been granted therein. (Sec. 7, Rule 47)
- The prescriptive period for the refiling of the
aforesaid original action shall be deemed suspended
from the filing of such original action until the finality
of the judgment of annulment. However, the
prescriptive period shall not be suspended where the
extrinsic-fraud is attributable to the plaintiff in the
original action. (Sec. 8, Rule 47)
- The judgment of annulment may include the award of
damages, attorney's fees and other relief. (Sec. 9,
Rule 47)
REMEDY WHEN THE QUESTIONED JUDGMENT HAS
ALREADY BEEN EXECUTED:
- If the questioned judgment or final order or resolution
had already been executed the court may issue such
orders of restitution or other relief as justice and
equity may warrant under the circumstances. (Sec. 9,
Rule 47)
APPLICATION OF RULE 47; ANNULMENT OR FINAL
ORDERS OF THE MTC:
- An action to annul a judgment or final order of a
Municipal Trial Court shall be filed in the Regional
Trial Court having jurisdiction over the former. (Sec.
10, Rule 47)
- It shall be treated as an ordinary civil action and
sections 2, 3, 4, 7, 8 and 9 of this Rule shall be
applicable thereto. (Sec. 10, Rule 47)
RULE 48
PRELIMINARY CONFERENCE
PURPOSE OF A PRELIMINARY CONFERENCE:
a. To consider the possibility of an amicable settlement,
except when the case is not allowed by law to be
compromised;
b. To define, simplify and clarify the issues for
determination;
c. To formulate stipulations of facts and admissions of
documentary exhibits, limit the number of witnesses
to be presented in cases falling within the original
jurisdiction of the court, or those within its appellate
jurisdiction where a motion for new trial is granted on
the ground of newly discovered evidence; and
d. To take up such other matters which may aid the
court in the prompt disposition of the case. (Rule 7,
CA Internal Rules). [Sec. 1, Rule 48]
PERIOD OF CONDUCTING THE PRELIMINARY
CONFERENCE:
- The court may call the parties and their counsel to a
preliminary conference at any time during the
pendency of a case. (Sec. 1, Rule 48)
RECORD OF THE CONFERENCE:
- The proceedings at such conference shall be
recorded and, upon the conclusion thereof, a
resolution shall be issued embodying all the actions
taken therein, the stipulations and admissions made
and the issues defined. (Sec. 2, Rule 48)
BINDING EFFECT OF THE RESULTS OF THE
PRELIMINARY CONFERENCE:
- Subject to such modifications which may be made to
prevent manifest injustice, the resolution in the
preceding section shall control the subsequent
proceedings in the case unless, within five (5) days
from notice thereof, any party shall satisfactorily
show valid cause why the same should not be
followed. (Sec. 3, Rule 48)
RULE 49
ORAL ARGUMENT
WHEN IS ORAL ARGUMENT ALLOWED?
- At its own instance or upon motion of a party, the
court may hear the parties in oral argument on the
merits of a case, or on any material incident in
connection therewith. (Sec. 1, Rule 49)
LIMITATIONS ON ORAL ARGUMENTS:
- The oral argument shall be limited to such matters as
the court may specify in its order or resolution. (Sec.
1, Rule 39)
CIVIL PROCEDURE 111
 CIVIL PROCEDURE
Morillo Notes
CONDUCT OF ORAL ARGUMENT:
- Unless authorized by the court, only one counsel
may argue for a party. The duration allowed for each
party, the sequence of the argumentation, and all
other related matters shall be as directed by the
court. (Sec. 2, Rule 49)
NO HEARING OR ORAL ARGUMENT FOR MOTIONS:
- Motions shall not be set for hearing and, unless the
court otherwise directs, no hearing or oral argument
shall be allowed in support thereof. (Sec. 3, Rule 49)
- The adverse party may file objections to the motion
within five (5) days from service, upon the expiration
of which such motion shall be deemed submitted for
resolution. (Sec. 3, Rule 49)
RULE 50
DISMISSAL OF APPEAL
GROUNDS FOR DISMISSAL OF APPEAL:
a. Failure of the record on appeal to show on its face
that the appeal was taken within the period fixed by
these Rules;
b. Failure to file the notice of appeal or the record on
appeal within the period prescribed by these Rules;
c. Failure of the appellant to pay the docket and other
lawful fees as provided in section 5, Rule 40 and
section 4 of Rule 41; (Bar Matter No. 803, 17
February 1998)
d. Unauthorized alterations, omissions or additions in
the approved record on appeal as provided in
section 4 of Rule 44;
e. Failure of the appellant to serve and file the required
number of copies of his brief or memorandum within
the time provided by these Rules;
f. Absence of specific assignment of errors in the
appellant's brief, or of page references to the record
as required in section 13, paragraphs (a), (c), (d) and
(f) of Rule 44;
g. Failure of the appellant to take the necessary steps
for the correction or completion of the record within
the time limited by the court in its order;
h. Failure of the appellant to appear at the preliminary
conference under Rule 48 or to comply with orders,
circulars, or directives of the court without justifiable
cause; and
i. The fact that the order or judgment appealed from is
not appealable. (Sec. 1, Rule 50)
ADDITIONAL NOTE:
- An appeal may be dismissed by the CA, on its own
motion or on that of the appellee. (Sec. 1, Rule 50)
DISMISSAL OF IMPROPER APPEAL TO THE CA:
- An appeal under Rule 41 taken from the Regional
Trial Court to the Court of Appeals raising only
questions of law shall be dismissed, issues purely of
law not being reviewable by said court. Similarly, an
appeal by notice of appeal instead of by petition for
review from the appellate judgment of a Regional
Trial Court shall be dismissed. (Sec. 2, Rule 50)
112 CIVIL PROCEDURE
- An appeal erroneously taken to the Court of Appeals
shall not be transferred to the appropriate court but
shall be dismissed outright. (Sec. 2, Rule 50)
WITHDRAWAL OF APPEAL:
- An appeal may be withdrawn as of right at any time
before the filing of the appellee's brief. Thereafter,
the withdrawal may be allowed in the discretion of
the court. (Sec. 3, Rule 50)
RULE 51
JUDGMENT
DEFINITION OF JUDGMENT:
- It is the final ruling by a court of competent
jurisdiction regarding the rights or other matters
submitted to it in an action or proceeding. (Macahilig
vs. Heirs of Garcia Magalit, 344 SCRA 838)
- “Judgment” is normally synonymous with “Decision”.
(Tung Chin Hui vs. Rodriguez, 340 SCRA 765)
WHEN A CASE IS DEEMED SUBMITTED FOR JUDGMENT
IN ORDINARY APPEALS:
1. Where no hearing on the merits of the main case is
held, upon the filing of the last pleading, brief, or
memorandum required by the Rules or by the court
itself, or the expiration of the period for its filing.
2. Where such a hearing is held, upon its termination or
upon the filing of the last pleading or memorandum
as may be required or permitted to be filed by the
court, or the expiration of the period for its filing.
(Sec. 1(A), Rule 51)
WHEN A CASE IS DEEMED SUBMITTED FOR JUDGMENT
IN ORIGINAL ACTIONS AND PETITIONS FOR REVIEW:
1. Where no comment is filed, upon the expiration of
the period to comment
2. Where no hearing is held, upon the filing of the last
pleading required or permitted to be filed by the
court, or the expiration of the period for its filing.
3. Where a hearing on the merits of the main case is
held, upon its termination or upon the filing of the last
pleading or memorandum as may be required or
permitted to be filed by the court, or the expiration of
the period for its filing. (Sec. 1(B), Rule 51)
BY WHOM JUDGMENT IS RENDERED?
- The judgment shall be rendered by the members of
the court who participated in the deliberation on the
merits of the case before its assignment to a member
for the writing of the decision. (Sec. 2, Rule 51)
QUORUM AND VOTING IN THE COURT:
- The participation of all three Justices of a division
shall be necessary at the deliberation and the
unanimous vote of the three Justices shall be
required for the pronouncement of a judgment or
final resolution.
- If the three justices do not reach a unanimous vote,
the clerk shall enter the votes of the dissenting
Justices in the record.
- Thereafter, the Chairman of the division shall refer
the case, together with the minutes of the
 CIVIL PROCEDURE
Morillo Notes
deliberation, to the Presiding Justice who shall
designate two Justices chosen by raffle from among
all the other members of the court to sit temporarily
with them, forming a special division of five Justices.
- The participation of all the five members of the
special division shall be necessary for the
deliberation required in section 2 of this Rule and the
concurrence of a majority of such division shall be
required for the pronouncement of a judgment or
final resolution. (Sec. 3, Rule 51)
DISPOSITION OF A CASE:
- The Court of Appeals, in the exercise of its appellate
jurisdiction, may affirm, reverse, or modify the
judgment or final order appealed from, and may
direct a new trial or further proceedings to be had.
(Sec. 4, Rule 51)
FORM OF DECISION:
- Every decision or final resolution of the court in
appealed cases shall clearly and distinctly state the
findings of fact and the conclusions of law on which
it is based, which may be contained in the decision
or final resolution itself, or adopted from those set
forth in the decision, order, or resolution appealed
from. (Sec. 40, BP Blg. 129)
HARMLESS ERROR:
- No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order
or in anything done or omitted by the trial court or by
any of the parties is ground for granting a new trial or
for setting aside, modifying, or otherwise disturbing a
judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial
justice.
- 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)
JUDGMENT WHERE THERE ARE SEVERAL PARTIES:
- In all actions or proceedings, an appealed judgment
may be affirmed as to some of the appellants, and
reversed as to others, and the case shall thereafter
be proceeded with, so far as necessary, as if
separate actions had been begun and prosecuted,
and execution of the judgment of affirmance may be
had accordingly, and costs may be adjudged in such
cases, as the court shall deem proper. (Sec. 7, Rule
51)
QUESTIONS THAT MAY BE DECIDED:
- No error which does not affect the jurisdiction over
the subject matter or the validity of the judgment
appealed from or the proceedings therein will be
considered unless stated in the assignment of errors,
or closely related to or dependent on an assigned
error and properly argued in the brief, save as the
court may pass upon plain errors and clerical errors.
(Sec. 8, Rule 51)
PROMULGATION AND NOTICE OF JUDGMENT:
- After the judgment or final resolution and dissenting
or separate opinions, if any, are signed by the
Justices taking part, they shall be delivered for filing
to the clerk who shall indicate thereon the date of
promulgation and cause true copies thereof to be
served upon the parties or their counsel. (Sec. 9,
Rule 51)
ENTRY OF JUDGMENT AND FINAL RESOLUTIONS:
- If no appeal or motion for new trial or reconsideration
is filed within the time provided in these Rules, the
judgment or final resolution shall forthwith be entered
by the clerk in the book of entries of judgments. The
date when the judgment or final resolution becomes
executory shall be deemed as the date of its entry.
The record shall contain the dispositive part of the
judgment or final resolution and shall be signed by
the clerk, with a certificate that such judgment or
final resolution has become final and executory. (Sec.
10, Rule 51)
EXECUTION OF JUDGMENT:
- Except where the judgment or final order or
resolution, or a portion thereof, is ordered to be
immediately executory, the motion for its execution
may only be filed in the proper court after its entry.
(Sec. 11, Rule 51)
EXECUTION OF JUDGMENT IN ORIGINAL ACTIONS:
- In original actions in the Court of Appeals, its writ of
execution shall be accompanied by a certified true
copy of the entry of judgment or final resolution and
addressed to any appropriate officer for its
enforcement. (Sec. 11, Rule 51)
EXECUTION OF JUDGMENT IN APPEALED CASES:
- In appealed cases, where the motion for execution
pending appeal is filed in the Court of Appeals at a
time that it is in possession of the original record or
the record on appeal, the resolution granting such
motion shall be transmitted to the lower court from
which the case originated, together with a certified
true copy of the judgment or final order to be
executed, with a directive for such court of origin to
issue the proper writ for its enforcement. (Sec. 11,
Rule 51)
RULE 52
MOTION FOR RECONSIDERATION
PERIOD OF FILING:
- A party may file a motion for reconsideration of a
judgment or final resolution within fifteen (15) days
from notice thereof, with proof of service on the
adverse party. (Sec. 1, Rule 52)
SECOND MOTION FOR RECONSIDERATION:
- No second motion for reconsideration of a judgment
or final resolution by the same party shall be
entertained. (Sec. 2, Rule 52)
RESOLUTION OF MOTION:
- In the Court of Appeals, a motion for reconsideration
shall be resolved within ninety (90) days from the
date when the court declares it submitted for
resolution. (Sec. 3, Rule 52)
STAY OF EXECUTION:
CIVIL PROCEDURE 113
 CIVIL PROCEDURE
Morillo Notes
- The pendency of a motion for reconsideration filed
on time and by the proper party shall stay the
execution of the judgment or final resolution sought
to be reconsidered unless the court, for good
reasons, shall otherwise direct. (Sec. 4, Rule 52)
RULE 53
NEW TRIAL
GROUNDS FOR FILING A NEW TRIAL UNDER RULE 53:
- A party may file a motion for new trial on the ground
of newly discovered evidence which could not have
been discovered prior to the trial in the court below
by the exercise of due diligence and which is of such
character as would probably change the result. (Sec.
1, Rule 53)
PERIOD FOR FILING OF NEW TRIAL UNDER RULE 53):
- At any time after the appeal from the lower court
has been perfected and before the CA loses
jurisdiction over the case, a party may file a motion
for new trial. (Sec. 1, Rule 53)
- the motion shall be accompanied by affidavits
showing the facts constituting the grounds therefor
and the newly discovered evidence. (Sec. 1, Rule 53)
HEARING AND ORDER:
- The Court of Appeals shall consider the new
evidence together with that adduced at the trial
below, and may grant or refuse a new trial, or may
make such order, with notice to both parties, as to
the taking of further testimony, either orally in court,
or by depositions, or render such other judgment as
ought to be rendered upon such terms as it may
deem just. (Sec. 2, Rule 53)
RESOLUTION OF MOTION:
- In the Court of Appeals, a motion for new trial shall
be resolved within ninety (90) days from the date
when the court declares it submitted for resolution.
(Sec. 3, Rule 53)
PROCEDURE IN NEW TRIAL:
- Unless the court otherwise directs, the procedure in
the new trial shall be the same as that granted by a
Regional Trial Court. (Sec. 4, Rule 53)
- see discussions under Rule 37
RULE 54
INTERNAL BUSINESS
DISTRIBUTION OF CASES AMONG DIVISIONS:
- All the cases of the Court of Appeals shall be allotted
among the different divisions thereof for hearing and
decision.
- The Court of Appeals, sitting en banc, shall make
proper orders or rules to govern the allotment of
cases among the different divisions, the constitution
of such divisions, the regular rotation of Justices
among them, the filing of vacancies occurring
114 CIVIL PROCEDURE
therein, and other matters relating to the business of
the court; and such rules shall continue in force until
repealed or altered by the Supreme Court. (Sec. 1,
Rule 54)
QUORUM OF THE COURT:
- A majority of the actual members of the court shall
constitute a quorum for its sessions en banc.
- Three members shall constitute a quorum for the
sessions of a division.
- The affirmative votes of the majority of the members
present shall be necessary to pass a resolution of the
court en banc.
- The affirmative votes of three members of a division
shall be necessary for the pronouncement of a
judgment or final resolution, which shall be reached
in consultation before the writing of the opinion by
any member of the division. (Sec. 11, first par. of BP
Blg. 129, as amended by Sec. 6 of EO 33).
RULE 55
PUBLICATION OF JUDGMENTS AND FINAL
RESOLUTIONS
PUBLICATION OF THE JUDGMENTS AND FINAL
RESOLUTIONS:
- The judgments and final resolutions of the court shall
be published in the Official Gazette and in the
Reports officially authorized by the court in the
language in which they have been originally written,
together with the syllabi therefor prepared by the
reporter in consultation with the writers thereof.
Memoranda of all other judgments and final
resolutions not so published shall be made by the
reporter and published in the Official Gazette and the
authorized reports. (Sec. 1, Rule 55)
PREPARATION OF OPINIONS FOR PUBLICATION:
- The reporter shall prepare and publish with each
reported judgment and final resolution a concise
synopsis of the facts necessary for a clear
understanding of the case, the names of counsel, the
material and controverted points involved, the
authorities cited therein, and a syllabus which shall
be confined to points of law. (Sec. 22a, R.A. No. 296)
GENERAL MAKE-UP OF VOLUMES:
- The published decisions and final resolutions of the
Supreme Court shall be called "Philippine Reports,"
while those of the Court of Appeals shall be known
as the "Court of Appeals Reports."
- Each volume thereof shall contain a table of the
cases reported and the cases cited in the opinions,
with a complete alphabetical index of the subject
matters of the volume.
- It shall consist of not less than seven hundred pages
printed upon good paper, well bound and numbered
consecutively in the order of the volumes published.
(Sec. 23a, R.A. No. 296) [Sec. 3, Rule 55)
 CIVIL PROCEDURE
Morillo Notes

PROCEDURE:
PROCEDURE IN THE SUPREME COURT
- The appeal shall be governed by and disposed of in
[Rule 56]
accordance with the applicable provisions of the
Constitution, laws, Rules 45, 48, sections 1, 2, and 5
to 11 of Rule 51, 52 and this Rule. (Sec. 4, Rule 56)
- The appeal may be dismissed motu proprio or on the
motion of the respondent. (Sec. 5, Rule 56)
RULE 56
GROUNDS FOR DISMISSAL OF APPEAL:
a. Failure to take the appeal within the reglementary
period;
A. ORIGINAL CASES b. Lack of merit in the petition;
c. Failure to pay the requisite docket fee and other
lawful fees or to make a deposit for costs;
ORIGINAL CASES COGNIZABLE IN THE SUPREME
d. Failure to comply with the requirements regarding
COURT:
proof of service and contents of and the documents
1. Petitions for Certiorari;
which should accompany the petition;
2. Petitions for Prohibition;
e. Failure to comply with any circular, directive or order
3. Petitions for Mandamus;
of the Supreme Court without justifiable cause;
4. Petitions for Mandamus;
f. Error in the choice or mode of appeal; and
5. Petitions for Quo Warranto;
g. The fact that the case is not appealable to the
6. Petitions for Habeas Corpus;
Supreme Court. (Sec. 5, Rule 56)
7. Disciplinary Proceedings against members of the
Judiciary and Attorneys; and
DISPOSITION OF IMPROPER APPEAL:
8. cases affecting ambassadors, other public ministers
- Except as provided in section 3, Rule 122 regarding
and consuls. (Sec. 1, Rule 56; Sec. 5(1), Art. VIII,
appeals in criminal cases where the penalty imposed
1987 Constitution)
is death, reclusion perpetua or life imprisonment, an
appeal taken to the Supreme Court by notice of
RULES APPLICABLE FOR CERTIORARI, PROHIBITION,
appeal shall be dismissed.
MANDAMUS, QUO WARRANTO AND HABEAS CORPUS:
- An appeal by certiorari taken to the Supreme Court
- The procedure in original cases, in accordance with
from the Regional Trial Court submitting issues of
the applicable provisions of the Constitutions, laws,
fact may be referred to the Court of Appeals for
and Rules 46, 48, 49, 51, 52 and 56 shall be the
decision or appropriate action. The determination of
applicable rules for the aforementioned petitions, and
the Supreme Court on whether or not issues of fact
subject to the following provisions:
are involved shall be final. (Sec. 6, Rule 56)
a. All references in said Rules to the CA shall
be understood to also apply to the SC;
PROCEDURE IF OPINION IS EQUALLY DIVIDED:
b. The portions of said Rules dealing strictly
- Where the court en banc is equally divided in
with and specifically intended for appealed
opinion, or the necessary majority cannot be had, the
cases in the CA shall not be applicable; and
case shall again be deliberated on, and if after such
c. Eighteen (18) clearly legible copies of the
deliberation no decision is reached, the original
petition shall be filed, together with proof of
action commenced in the court shall be dismissed, in
service on all adverse parties. (Sec. 2, Rule
appealed cases, the judgment or order appealed
56(A))
from shall stand affirmed; and on all incidental
matters, the petition or motion shall be denied. (Sec.
RULES APPLICABLE FOR DISCIPLINARY PROCEEDINGS
7, Rule 56)
AGAINST MEMBERS OF THE JUDICIARY AND
ATTORNEYS:
- The proceedings for disciplinary action against
members of the Judiciary shall be governed by the PROVISIONAL REMEDIES
laws and rules prescribed therefor, and those against (Rule 57 to Rule 61)
attorneys by Rule 139-B. (Sec. 2, Rule 56(A))
- Proceedings for disbarment, suspension or discipline
of attorneys may be taken by the Supreme Court
motu proprio, or by the Integrated Bar of the NATURE OF PROVISIONAL REMEDIES:
Philippines (IBP) upon the verified complaint of any - Provisional remedies are temporary, auxiliary, and
person. (Sec. 1, Rule 139-B) ancillary remedies available to a litigant for various
purposes like the protection and preservation of his
rights while the main action is pending or until final
B. APPEALED CASES disposition of a matter in litigation can occur. (Riano
(2012), Civil Procedure Vol. 2, p. 3)
- They are not causes of action in themselves but
MODE OF APPEAL TO THE SUPREME COURT:
merely adjuncts to a main suit. They are provisional
- An appeal to the SC may be taken only by a petition
because they constitute temporary measures availed
for review on certiorari, except in criminal cases
of during the pendency of the action and ancillary
where the penalty imposed is death, reclusion
because they are mere incidents in and are
perpetua or life imprisonment. (Sec. 1, Rule 56(B))
dependent upon the results of the main ation.

CIVIL PROCEDURE 115

 CIVIL PROCEDURE
Morillo Notes
(Estares vs. CA, 459 SCRA 604; Buyco vs. Baraquia,
608 SCRA 699)
PURPOSE OF PROVISIONAL REMEDIES:
1. To preserve or protect their rights or interests while
the main action is pending;
2. To secure the judgment;
3. To preserve the status quo; or
4. To preserve the subject matter of the action. (Riano
(2012), Civil Procedure Vol. 2, p. 3)
COURT WITH JURISDICTION OVER PROVISIONAL
REMEDIES:
- The court which grants or issues a provisional
remedy is the court which has jurisdiction over the
main action. The ancillary and provisional remedy of
preliminary injunction cannot exist except only as an
incident of an independent action or proceeding. (BF
Homes vs. Manila Electric Company, 636 SCRA 495)
- The authority to grant a provisional remedy is not the
sole prerogative of superior courts. Even inferior
courts may grant a provisional remedy in an action
pending with it and within its jurisdiction. (Batas
Pambansa Blg. 129)
KINDS OF PROVISIONAL REMEDIES IN CIVIL CASES:
a. Preliminary Attachment (Rule 57);
b. Preliminary Injunction (Rule 58);
c. Receivership (Rule 59);
d. Replevin (Rule 60); and
e. Support pendente lite (Rule 61);
PROVISIONAL REMEDIES IN CRIMINAL CASES:
- The provisional remedies in civil actions, insofar as
they are applicable, may be availed of in connection
with the civil action deemed instituted with the
criminal action. (Sec. 1, Rule 127)
- When the civil action is properly instituted in the
criminal action as provided in Rule 111, the offended
party may have the property of the accused attached
as security for the satisfaction of any judgment that
may be recovered from the accused in the following
cases:
a. When the accused is about to abscond
from the Philippines;
b. When the criminal action is based on a
claim for money or property embezzled or
fraudulently misapplied or converted to the
use of the accused who is a public officer,
officer of a corporation, attorney, factor,
broker, agent or clerk, in the course of his
employment as such, or by any other
person in a fiduciary capacity, or for a willful
violation of duty;
c. When the accused has concealed,
removed, or disposed of his property, or is
about to do so; and
d. When the accused resides outside the
Philippines. (Sec. 2, Rule 127)
- Note: The rule on the institution of the civil action
with the criminal action does not apply when the
offended party; (a) waives the civil action; (b)
reserves the right to institute the civil action
separately; or (c) institutes the civil action prior to the
criminal action.
116 CIVIL PROCEDURE
RULE 57
PRELIMINARY ATTACHMENT
NATURE OF PRELIMINARY ATTACHMENT:
- A provisional attachment may be defined as the
provisional remedy, in virtue of which a plaintiff or
other party may, at the commencement of the action
or at any time thereafter, have the property of the
adverse party taken into the custody of the court as
security for the satisfaction of any judgment that may
be recovered. It is a remedy which is purely statutory
in respect of which the law requires a strict
construction of the provisions granting it. Withal, no
principle, statutory or jurisprudential, prohibits its
issuance by any court before acquisition of
jurisdiction over the person of the defendant. (Davao
Light and Power vs. CA, 204 SCRA 343)
- While attachment is an action in rem or quasi in rem,
this classification is true only when the defendant
does not appear in the action. If the defendant
appears, the cause becomes mainly a suit in
personam, with the added incident that the property
attached remains liable, under the control of the
court, to answer to any demand which may be
established against the defendant by the final
judgment of the court. (Banco-Espanol Filipino vs.
Palanca, 37 Phil. 921)
GRANT OF PRELIMINARY ATTACHMENT IS
DISCRETIONARY:
- The grant of the remedy is addressed to judicial
discretion to be exercised in accordance with the
requirements of the applicable rules.
- For instance, a judge gravely abused his discretion
when he issued a writ of preliminary attachment,
even if there was no ground for the issuance. The
court would also be acting in excess of its
jurisdiction if it issues a writ on the basis of an
affidavit, which does not contain all the allegations
mandated by the Rules to support the application for
the issuance of the writ. (K.O. Glass Construction vs.
Valenzuela, 116 SCRA 563)
KINDS OF ATTACHMENTS:
a. Preliminary Attachment;
b. Garnishment;
c. Levy on Execution.
KINDS OF ATTACHMENTS:
A. PRELIMINARY ATTACHMENT:
- One issued at the commencement of the action or at
any time before entry of the judgment as security for
the satisfaction of any judgment that may be
recovered in the cases provided for by the rules.
- Here, the court takes custody of the property of the
party against whom the attachment is directed.
(Riano (2012), Civil Procedure Vol. 2, p. 19)
B. GARNISHMENT:
- A kind of attachment in which the attaching party
seeks to subject to his claim either the property of
 CIVIL PROCEDURE
Morillo Notes
the adverse party, in the hands of a third person
called, garnishee, or the money which said third
person owes the adverse party.
- The Court considers garnishment as a specie of
attachment for reaching credits belonging to the
judgment debtor and owing to him from a stranger to
the litigation. (RCBC vs. Castro, 168 SCRA 49)
- by means of garnishment, the plaintiff reaches
credits belonging to the defendant and owing to him
from a third person who is a stranger to the litigation.
(Riano (2012), Civil Procedure Vol. 2, p. 20)
- Garnishment simply impounds the property in the
garnishee’s possession and maintains the status quo
until the main action is finally decided. (Riano (2012),
Civil Procedure Vol. 2, p. 20)
C. LEVY ON EXECUTION:
- The process available after the judgment has
becomes executory by which the property of the
judgment obligor/debtor is taken into the custody of
the court before the sale of the property on execution
for the satisfaction of a final judgment. (Riano (2012),
Civil Procedure Vol. 2, p. 22)
- In this process, the sheriff or an officer of the court
appropriates the judgment debtor’s property
pursuant to the writ of execution as a preliminary
step to the sale on execution of the property of the
judgment debtor. (Riano (2012), Civil Procedure Vol.
2, p. 22)
Section 1: Grounds upon which the
attachment may issue
WHO MAY AVAIL OF PRELIMINARY ATTACHMENT:
- Under Sec. 1, Rule 47, provides that the plaintiff or
any proper party may have the property of the
adverse party attached. These terms (proper porty)
are broad enough to refer also to a defendant who
files a counterclaim, cross-claim or third-party
complaint. Hence, the proper party may also refer to
the counterclaimant, cross-claimant or the third-
party plaintiff as long as the application for the writ is
supported by the proper ground. (BORJA VS. platon,
73 Phil. 659)
PURPOSE OF PRELIMINARY ATTACHMENT:
● To seize the property of the debtor in advance of
final judgment and to hold it for purposes of
satisfying said judgment, as in the grounds stated in
paragraphs (a) to (e) of Section 1, Rule 57; or
● To acquire jurisdiction over the action by actual or
constructive seizure of the property in those
instances where personal or substituted service of
summons on the defendant cannot be effected, as in
paragraph (f) of Section 1, Rule 57. (Phil. Commercial
International Bank vs. Alejandro, 533 SCRA 738)
STAGE OF THE PROCEEDINGS WHEN PRELIMINARY
ATTACHMENT MAY BE APPLIED FOR.
a. At the commencement of the action:
- The application may be incorporated in a verified
complaint alleging all the grounds relied upon and
complying with all the requisites for the grant of the
application.
b. At any time before entry of judgment:
- The stage before the entry of the judgment is the last
opportunity to avail of the remedy.
- The date of finality of judgment or final order shall be
deemed to be the date of its entry. (Sec. 2, Rule 36)
- Therefore, the issuance of the writ may be applied for
before the judgment becomes final and executory.
After the judgment becomes final and executory, a
writ of preliminary attachment can no longer be
obtained because the judgment, by then, has already
been entered by operation of the ROC. The next
stage will then be the filing of a motion for execution.
GROUNDS FOR THE ISSUANCE OF A WRIT OF
PRELIMINARY ATTACHMENT:
A. RECOVERY OF A SPECIFIED AMOUNT OF MONEY
OR DAMAGES:
- Provision: ”In an action for the recovery of a
specified amount of money or damages, other than
moral and exemplary, on a cause of action arising
from law, contract, quasi-contract, delict or quasi-
delict against a party who is about to depart from the
Philippines with intent to defraud his creditors” (Sec.
1(a), Rule 57)
Additional Notes:
- Under the above provision, a party is sued for
money or damages, the amount of which must be
“Specified”. The cause of action need not arise from
a contract alone. It may be based upon any sources
of obligations under Art. 1157, Civil Code (law,
contract, quasi-contract, delict, quasi-delict)
- However, where the action is for the recovery of
moral damages or exemplary damages alone,
preliminary attachment will not lie under Sec. 1(a),
Rule 57, even if the applicant specifies the amount
he seeks to recover. (Sec. 1, Rule 57)
- A writ of preliminary attachment cannot be issued for
moral and exemplary damages and other
unliquidated and contingent claims (Insular Savings
Bank vs. CA, 460 SCRA 122
- It must also show that such departure is “with the
intent to defraud his creditor.” The act is considered
an “attempt to abscond” which is a ground for the
debtor to lose the right to make use of the period in
case the obligation is one with a period or term, thus,
making the obligation one that is immediately
demandable.
- A mere allegation that the defendant is foreigner,
without alleging that he intends to depart from the
Philippines to defraud his creditor, is not sufficient for
the issuance of a writ of preliminary attachment.
(K.O. Glass Construction vs. Valenzuela, Supra)
B. ACTION FOR MONEY OR PROPERTY EMBEZZLED:
- Provision: “In an action for money or property
embezzled or fraudulently misapplied or converted to
his own use by a public officer, or an officer of a
corporation, or an attorney, factor, broker, agent, or
clerk, in the course of his employment as such, or by
any other person in a fiduciary capacity, or for a
willful violation of duty.” (Sec. 1(b), Rule 57)
CIVIL PROCEDURE 117
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Morillo Notes
Additional Notes:
- Under this provision, it is the character of the office
or the duty of the defendant that is to be considered
when the prohibited acts are performed.
- A fiduciary is one “founded in trust and confidence”.
(Webster’s Dictionary)
- In an action against a public officer who
misappropriated funds entrusted to him, by virtue of
his office, the issuance of a writ of preliminary
attachment is proper.
- It may also be issued against a corporate officer
who, with abuse of confidence, appropriates
corporate funds for his personal use but the
allegations of fraud, embezzlement and
misappropriation must be substantiated. (Walter
olsen vs. Olsen, 48 Phil. 238; Phil. Bank of
Communications vs. CA, 352 SCRA 616)
and renders a contract employing it to pay
annullable or voidable. damages. (Art. 1344, NCC)
(Arts. 1330 & 1339, NCC)
- Under Sec. 1(d), Rule 57, it is submitted that the
willful delivery of counterfeit money in payment of a
debt may be considered as a ground for preliminary
attachment. This is “Dolo Causante”(Causal Fraud),
fraud in the performance of the obligation. (Phil. Bank
of Communications vs. CA, 352 SCRA 616)
E. REMOVAL OR DISPOSAL OF PROPERTY WITH
INTENT TO DEFRAUD:
- Provision: “In an action against a party who has
removed or disposed of his property, or is about to
do so, with intent to defraud his creditors..” (Sec.
1(d), Rule 57)

C. RECOVERY OF PROPERTY OR FRAUDULENTLY Additional Notes:

TAKEN:
- Provision: “In an action to recover the possession of
property unjustly or fraudulently taken, detained or
converted, when the property, or any part thereof,
has been concealed, removed, or disposed of to
prevent its being found or taken by the applicant or
an authorized person.” (Sec. 1(c), Rule 57)
Additional Notes:
- This ground does not refer to a defendant acting in a
fiduciary capacity.
- The justification for the writ is his unjust or fraudulent
taking of property, or of converting or detaining the
same and that the recovery of which is the purpose
of the action.
- the applicant must further show that aside from the
acts already mentioned, the defendant has
concealed, removed or disposed of the property for
the purpose of preventing its being found or taken by
either the applicant or authorized person. (Raino
(2012), Civil Procedure Vol. 2, p. 25)
D. FRAUD IN CONTRACTING OR PERFORMING AN
OBLIGATION:
- Provision: “In an action against a party who has
been guilty of a fraud in contracting the debt or
incurring the obligation upon which the action is
brought, or in the performance thereof.” (Sec. 1(c),
Rule 57)
Additional Notes:
- The basis of the application for this provision is the
fraudulent act of a party in either (a) contracting the
debt or incurring the obligation; or (b) in the
performance of his obligation.
- Two Kinds of Frauds contemplated here:
DOLO CAUSANTE DOLO INCIDENTE
(Casual Fraud) (Incidental Fraud)
- Two elements required in this Rule:
a. A party has removed or disposed of his
property, or is about to do so; and
b. The aforementioned acts must be with
intent to defraud the creditor.
F. ACTIONS AGAINST NON-RESIDENTS OR ON WHOM
SUMMONS MAY BE SERVED BY PUBLICATION:
- Provision: “In an action against a party who does
not reside and is not found in the Philippines, or on
whom summons may be served by publication.”
(Sec. 1(f), Rule 57)
Additional Notes:
- The situation does not solely refer to parties who are
non-residents but also to other parties who may be
residents but on whom summons by publication may
be served.
- As to non-residents, one purpose of the remedy of
attachment is to reach the property of an absent,
non-resident defendant in an action in personam,
thus, dispensing with the need for acquiring
jurisdiction over his person. The attachment is
intended to enable the court too acquire jurisdiction
over the Res by converting the action in Personam to
an action Quasi in Rem and thus, justifying summons
by publication and other modes of summon under
Sec. 15, Rule 14.
- When property located in the Philippines of a non-
resident, who at the same time is outside the
Philippines is attached, the court acquires jurisdiction
over the Res and in that event, the jurisdiction over
the person of said defendant is not essential.
(Mabanag vs. Gallemore, 81 Phil. 254)
- Sec. 1(f), Rule 57, also applies to those persons who
need not be non-residents but on whom summons
may be served by publication. Preliminary
attachment may be availed of against their
properties.

Fraud used to induce fraud employed by a party

another to enter into a in the fulfillment of his Section 2: Issuance and contents of order
contract. (Art. 1338, NCC) obligation or after the
obligation has been
contracted. ISSUANCE OF THE ORDER; EX PARTE ISSUANCE OR
UPON MOTION WITH NOTICE AND HEARING:
Fraud employed in This kind of fraud only - The order of preliminary attachment may be granted
contracting an obligation obliges the person upon motion and notice and hearing by the court in

118 CIVIL PROCEDURE

 CIVIL PROCEDURE
Morillo Notes
which the action is pending, and may even be issued
by the CA, or the SC. (Sec. 2, Rule 57)
- It may also be issued ex part and even before
summons is served upon the defendant. However
the writ may not be enforced and validly
implemented unless preceded or simultaneously
accompanied by service of summons, copy of the
complaint, application for attachment, order of
attachment and the attachment bond. (Davao Light &
power vs. CA, 204 SCRA 343; Mangila vs. CA, 387
SCRA 162)
CONTENTS OF THE ORDER OF ATTACHMENT:
- The order must require the sheriff of the court to
attach so much of the property in the Philippines of
the party against whom it is issued, not exempt from
execution, as may be sufficient to satisfy the
applicant’s demand, unless such party makes a
deposit or gives a bond in an amount equal to that
fixed in the order, which may be the amount
sufficient to satisfy the applicant’s demand or the
value of the property to be attached as stated by the
applicant, exclusive of costs. (Sec. 2, Rule 57)
Section 3: Affidavit and bond required
REQUISITES FOR THE ISSUANCE OF AN ORDER OF
PRELIMINARY ATTACHMENT; AFFIDAVIT AND BOND
REQUIRED:
- An order of attachment shall be granted only upon
the filing of the requisite affidavit and bond. These
must be duly filed with the court before the order of
attachment is issued. (Sec. 3, Rule 57)
- The required affidavit need not be executed by the
applicant. It may be executed by some other person
who personally knows the facts. (Sec. 3, Rule 57)
- Aside from the affidavit executed, the party applying
for an order of preliminary attachment must post a
bond in the amount fixed by the court and executed
to the adverse party. (This is called an attachment
bond). [Secs. 3 & 4, Rule 57]
CONTENTS OF THE AFFIDAVIT:
a. That a sufficient case of action exists;
b. That the case is one of those mentioned in Sec. 1,
Rule 57;
c. That there is no other sufficient security for the claim
sought to be enforced by the action; and
d. That the amount due to the applicant, or the value of
the property the possession of which he is entitled to
recover, is as much as the sum for which the order is
granted above all legal counterclaims. (Sec. 3, Rule
57)
Section 4: Condition of applicant’s bond
CONDITION OF APPLICANT’S BOND:
- The party applying for the order must thereafter give
a bond executed to the adverse party in the amount
fixed by the court in its order granting the issuance of
the writ, 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)
- The attachment bond answers only for the payment
of all damages which the defendant may sustain if
the court shall finally adjudge that the plaintiff was
not entitled to the attachment. The liability attaches if
the plaintiff is not entitled to the attachment because
the requirements entitling him to the writ are wanting,
or that the facts stated in his affidavit, or some of
them are untrue. (China banking Corp. vs. Asian
Construction, 550 SCRA 585)
Section 5: Manner of attaching property
PRIOR OR CONTEMPORANEOUS SERVICE OF
SUMMONS:
- The writ of attachment is implemented by the sheriff
who shall make a levy on attachment pursuant to the
writ issued under Sec. 2, Rule 57. However, under
the ROC, the sheriff is not allowed to make a levy on
attachment if such levy is not preceded or
contemporaneously accompanied, by the service on
the defendant within the Philippines, of the following:
a. Service of Summons;
b. Copy of the complaint;
c. Application for attachment;
d. Applicant’s affidavit and bond; and
e. Order and writ of attachment. (Sec. 5, Rule
57)
STAGES IN THE GRANT OF PRELIMINARY ATTACHMENT:
1. The Court issues the order granting the application
First Stage);
2. The writ of attachment issues pursuant to the order
granting the writ (Second Stage); and
3. The writ is implemented (Third Stage).
Additional Notes:
- In the third stage, when the writ is to be
implemented, the court must have acquired
jurisdiction over the person of the defendant. Without
such jurisdiction having been obtained, the court has
no power and authority to act in any manner against
the defendant. (Mangila vs. CA, 387 SCRA 162)
- The rule that no levy on attachment pursuant to the
writ of preliminary attachment shall be enforced
unless it is preceded, or contemporaneously
accompanied, by the service of summons, together
with a copy of the complaint, the application for
attachment, the applicant’s affidavit and bond, and
the order and writ of attachment, on the defendant
within the Philippines. (Sec. 5, Rule 57)
WHEN THE REQUIREMENT OF PRIOR OR
CONTEMPORANEOUS SERVICE SHALL NOT APPLY:
a. When the summons could not be served personally
despite diligent efforts;
b. When the summons could not be served by
substituted service despite diligent efforts;
c. When the defendant is a resident of the Philippines
temporarily absent threfrom;
d. When the defendant is a non-resident of the
Philippines; and
e. When the action is one in Rem or Quasi In Rem.
(Sec. 5, Rule 57)
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 CIVIL PROCEDURE
Morillo Notes
Section 6: Sheriff’s return
SHERIFF’S RETURN:
- After enforcing the writ, the sheriff must likewise
without delay make a return thereon to the court
from which the writ issued, with a full statement of
his proceedings under the writ and a complete
inventory of the property attached, together with any
counter-bond given by the party against whom
attachment is issued, and serve copies thereof on
the applicant. (Sec. 6, Rule 57)
Section 7: Attachment of real
and personal property
ATTACHMENT OF REAL PROPERTY; GROWING CROPS:
- Real property or growing crops shall be attached by
the sheriff executing the writ by filing with the
Registry of Deeds the following:
a. Copy of the order of attachment;
b. Description of the property attached; and
c. Notice that the property subject of the writ
is attached (Sec. 7(a), Rule 57)
- The sheriff shall then leave a copy of such order,
description, and notice with the occupant of the
property, if any, or with such other person or his
agent if found within the province. (Sec. 7(a), Rule 57)
- Where the property has been brought under the
operation of either the LRA or Property Registration
Decree (PD 1529), the notice shall contain a
reference to the (a) number of the certificate of title;
(b) volume and page in the registration book where
the certificate is registered; and (c) registered
owner/s thereof.. (Sec. 7, Rule 57)
ATTACHMENT OF PERSONAL PROPERTY CAPABLE OF
MANUAL DELIVERY:
- Personal property capable of manual delivery, by
taking and safely keeping it in his custody, after
issuing the corresponding receipt therefor.(Sec. 7(b),
Rule 57)
ATTACHMENT OF STOCKS OR SHARES OR INTEREST
THEREIN:
- Stocks or shares, or an interest in stocks or shares,
of any corporation or company, shall be attached by
leaving with the president or managing agent thereof
the following:
a. Copy of the writ, and
b. Notice stating that the stock or interest of
the party against whom the attachment is
issued is attached in pursuance of such
writ. (Sec. 7(c), Rule 57)
ATTACHMENT OF BANK DEPOSITS AND SIMILAR
PROPERTY NOT CAPABLE OF MANUEL DELIVERY:
- Real and personal property shall be attached by the
sheriff executing the writ in the following manner x x
x debts and credits, including bank deposits,
financial interest, royalties, commissions and other
personal property not capable of manual delivery, by
leaving with the person owing such debts, or having
in his possession or under his control, such credits or
other personal property, or with his agent, a copy of
120 CIVIL PROCEDURE
the writ, and notice that the debts owing by him to
the party against whom attachment is issued, and
the credits and other personal property in his
possession, or under his control, belonging to said
party, are attached in pursuance of such writ. (Sec.
7(d), Rule 57)
ATTACHMENT OF INTEREST IN PROPERTY BELONGING
TO THE ESTATE OF THE DECEDENT:
- Real and personal property shall be attached by the
sheriff executing the writ in the following manner x x
x the interest of the party against whom attachment
is issued in property belonging to the estate of the
decedent, whether as heir, legatee, or devisee, by
serving the executor or administrator or other
personal representative of the decedent with a copy
of the writ and notice that said interest is attached.
(Sec. 7(e), Rule 57)
- A copy of said writ of attachment and of said notice
shall also be filed in the office of the clerk of the
court in which said estate is being settled and served
upon the heir, legatee or devisee concerned. (Sec.
7(e), Rule 57)
ATTACHMENT OF PROPERTY IN CUSTODIA LEGIS;
REQUIREMENT:
- Property in custodia legis may be subject of an order
preliminary attachment. The provisions of the last
paragraph of Sec. 7, Rule 57, authorizes an
attachment of property already under the custody of
law. What will arise in this event will be a priority in
the liens which means that the first attachment will
have priority over subsequent attachments. The
attachment of a property already in custodia legis
merely operates as a lien and does not mean that the
attaching court will wrest custody of the property
from another court.
- If the property attached is in custodia legis, the rule
requires that a copy of the writ of attachment shall
be filed with the proper court or quasi-judicial
agency, and notice of the attachment served upon
the custodian of said property. (Sec. 7, last
paragraph, Rule 57; Bangko Sentral ng Pilipinas vs.
Lanzanas, 637 SCRA 475)
Section 8: Effect of attachment of debts, credits and all
other similar personal property
EFFECT OF ATTACHMENT OF DEBTS, CREDITS AND ALL
OTHER SIMILAR PERSONAL PROPERTY:
- All persons having in their possession or under their
control any credits or other similar personal property
belonging to the party against whom attachment is
issued, or owing any debts to him, at the time of
service upon them of the copy of the writ of
attachment and notice as provided in the last
preceding section, shall be liable to the applicant for
the amount of such credits, debts or other similar
personal property, until the attachment is
discharged, or any judgment recovered by him is
satisfied, unless such property is delivered or
transferred, or such debts are paid, to the clerk,
sheriff, or other proper officer of the court issuing the
attachment. (Sec. 8, Rule 57)
 CIVIL PROCEDURE
Morillo Notes
Section 9: Effect of attachment of interest in property
belonging to the estate of a decedent
EFFECT OF ATTACHMENT OF INTEREST IN PROPERTY
BELONGING TO THE ESTATE OF A DECEDENT:
- The attachment of the interest of an heir, legatee, or
devisee in the property belonging to the estate of a
decedent shall not impair the powers of the executor,
administrator, or other personal representative of the
decedent over such property for the purpose of
administration. (Sec. 9, Rule 57)
- Such personal representative, however, shall report
the attachment to the court when any petition for
distribution is filed, and in the order made upon such
petition, distribution may be awarded to such heir,
legatee or devisee, but the property attached shall be
ordered delivered to the sheriff making the levy,
subject to the claim of such heir, legatee, or devisee,
or any person claiming under him. (Sec. 9, Rule 57)
Section 10: Examination of party whose property is
attached and persons indebted to him or controlling his
property;
delivery of property to sheriff
EXAMINATION OF PARTY WHOSE PROPERTY IS
ATTACHED OR OF PERSON INDEBTED TO HIM:
- Any person owing debts to the party whose property
is attached or having in his possession or under his
control any credit or other personal property
belonging to such party, may be required to attend
before the court in which the action is pending, or
before a commissioner appointed by the court, and
be examined on oath respecting the same.
- The party whose property is attached may also be
required to attend for the purpose of giving
information respecting his property, and may be
examined on oath.
- The court may, after such examination, order
personal property capable of manual delivery
belonging to him, in the possession of the person so
required to attend before the court, to be delivered to
the clerk of the court or sheriff on such terms as may
be just, having reference to any lien thereon or claim
against the same, to await the judgment in the
action. (Sec. 10, Rule 57)
Section 11: When attached property may be sold after
levy on attachment and before entry of judgment
WHEN ATTACHED PROPERTY MAY BE SOLD AFTER
LEVY ON ATTACHMENT AND BEFORE ENTRY OF
JUDGMENT:
- Whenever it shall be made to appear to the court in
which the action is pending, upon hearing with notice
to both parties, that the property attached is
perishable, or that the interests of all the parties to
the action will be subserved by the sale thereof, the
court may order such property to be sold at public
auction in such manner as it may direct, and the
proceeds of such sale to be deposited in court to
abide the judgment in the action. (Sec. 11, Rule 57)
- An attached property may be sold after levy on
attachment and before entry of judgment whenever it
shall be made to appear to the court in which the
action is pending, upon hearing with notice to both
parties, that the attached property is perishable or
that the interests of all the parties to the action will
be subserved by the sale of the attached property.
(China Banking Corp. vs. Asian Construction, 550
SCRA 585)
Section 12: Discharge of attachment
upon giving counter-blood
EFFECT OF THE DISCHARGE OF THE ATTACHMENT:
- Upon the discharge of an attachment, the property
attached, or the proceeds of any sale thereof, shall
be delivered to the party making the deposit or giving
the counter-bond, or to the person appearing on his
behalf. (Sec. 12, Rule 57(
- Note: See discussion on Sec. 13, Rule 57)
Section 13: Discharge of attachment
on other grounds
PREVENTING THE ATTACHMENT:
- Under Sec. 5, Rule 57, the sheriff enforcing the writ
shall do so without delay unless the party against
whom the writ was issued shall make the required
deposit or counter-bond. Therefore, a party whose
property is sought to be attached may prevent the
enforcement of the writ of attachment by depositing
with the court from which the writ was issued or by
giving a counter-bond executed to the applicant, in
an amount equal to the bond fixed by the court in the
order of attachment or to the value of the property to
be attached, exclusive of costs. (Sec. 5, Rule 57)
DISCHARGE OF ATTACHMENT; COUNTER-BOND AND
OTHER GROUNDS:
A. By filing a motion to discharge the attachment and
making a deposit and counter bond:
- The motion shall be filed by the party whose property
has been attached or by the person appearing on his
behalf.
- Aside from the filing of a motion, the movant shall
make a cash deposit, or file a counter-bond
executed to the attaching party with the clerk of
court where the application is made, in an amount
equal to that fixed by the court in the order of
attachment, exclusive of costs.
- However, if the discharge is sought with respect to a
particular property only, the counter-bond shall be
equal to the value of that property as determined by
the court. (Sec. 12, Rule 57)
- After due notice and hearing, the court shall direct
that the attachment be discharged (Sec. 12, Rule 57)
- Mere posting of the counter-bond does not
automatically discharge the writ of attachment. It is
only after due notice and hearing, and after the judge
has ordered the discharge of attachment that the
same is properly discharged.
- the cash deposit or counter-bond shall secure the
payment of any judgment that the attaching party
may recover in the action. (Sec. 12, Rule 57)
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- Counter-bonds are also replacements of the property
formerly attached, and just as the latter, may be
levied upon final judgment. (security Pacific
Assurance, vs. Tria-Infante, 468 SCRA 526)
B. By filing a motion to set aside or discharge the
attachment on other grounds without need for filing a
counter-bond:
- Under Sec. 13, Rule 57, the party whose property
has been ordered attached may file a motion with the
court in which the action is pending, for an order to
set aside or discharge the attachment. The motion
be based on any of the following grounds:
a. The attachment was improperly or
irregularly issued or enforced;
b. The bond is insufficient;
c. The attachment is excessive (but in this
case, the discharge shall be limited to the
excess_; and
d. The property is exempt from execution, and
as such, is also exempt from preliminary
attachment. (Secs. 2 & 5, Rule 57)
- the motion may be filed (1) before levy, (2) after levy,
or (3) even after the release of the attached property.
If the motion be made on affidavits on the part of the
movant but not otherwise, the attaching party may
oppose the motion by counter-affidavits or other
evidence in addition to that on which the attachment
was made. (Sec. 13, Rule 57)
- After due notice and hearing, the court shall order
the setting aside or the corresponding discharge of
the attachment (Sec. 13, Rule 57)
- An ex Parte discharge is a disservice to the orderly
administration of justice and nullifies the underlying
role and purpose of preliminary attachment in
preserving the rights of the parties pendente lite as
an ancillary remedy. (Peroxide Phils. Corp. vs. CA,
199 SCRA 882)
Section 14: Proceedings where the property claimed by
third person
PROCEEDINGS WHERE THE PROPERTY CLAIMED BY
THIRD PERSON:
- If the property attached is claimed by any person
other than the party against whom attachment had
been issued or his agent, and such person makes an
affidavit of his title thereto, or right to the possession
thereof, stating the grounds of such right or 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, the sheriff shall not
be bound to keep the property under attachment,
unless the attaching party or his agent, on demand
of the sheriff, shall file 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. In
case of disagreement as to such value, the same
shall be decided by the court issuing the writ of
attachment. No claim for damages for the taking or
keeping of the property may be enforced against the
bond unless the action therefor is filed within one
hundred twenty (120) days from the date of the filing
of the bond.
122 CIVIL PROCEDURE
- The sheriff shall not be liable for damages for the
taking or keeping of such property to any such third-
party claimant, if such bond shall be filed. Nothing
herein contained shall prevent such claimant or any
third person from vindicating his claim to the
property, or prevent the attaching party from
claiming damages against a third-party claimant who
filed a frivolous or plainly spurious claim, in the same
or a separate action.
- When the writ of attachment is issued in favor of the
Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be
required, and in case the sheriff is sued for damages
as a result of the attachment, he shall be represented
by the Solicitor General, and if held liable therefor,
the actual damages adjudged by the court shall be
paid by the National Treasurer out of the funds to be
appropriated for the purpose. (Sec. 14, Rule 57)
Section 15: Satisfaction of judgment out of property
attached; return of sheriff
MANNER OF SATISFYING THE JUDGMENT OUT OF THE
PROPERTY ATTACHED:
a. By paying to the judgment obligee the proceeds of
all sales of perishable or other property sold in
pursuance of the order of the court, or so much as
shall be necessary to satisfy the judgment;
b. If any balance remains due, by selling so much of the
property, real or personal, as may be necessary to
satisfy the balance, if enough for that purpose remain
in the sheriff's hands, or in those the clerk of the
court;
c. By collecting from all persons having in their
possession credits belonging to the judgment
obligor, or owing debts to the latter at the time of the
attachment of such credits or debts, the amount of
such credits and debts as determined by the court in
the action, and stated in the judgment, and paying
the proceeds of such collection over to the judgment
obligee/creditor. (Sec. 15, Rule 57)
RETURN OF SHERIFF:
- The sheriff shall forthwith make a return in writing to
the court of his proceedings under this section and
furnish the parties with copies thereof. (Sec. 15, Rule
57)
Section 16: Balance due collected
upon an execution
BALANCE DUE COLLECTED UPON AN EXECUTION:
- If after realizing upon all the property attached,
including the proceeds of any debts or credits
collected, and applying the proceeds to the
satisfaction of the judgment less the expenses of
proceedings upon the judgment any balance shall
remain due, the sheriff must proceed to collect such
balance as upon ordinary execution.
- Whenever the judgment shall have been paid, the
sheriff, upon reasonable demand, must return to the
judgment obligor the attached property remaining in
his hands, and any proceeds of the sale of the
 CIVIL PROCEDURE
Morillo Notes
property attached not applied to the judgment. (Sec.
16, Rule 57)
Section 17: Recovery upon the counter-bond
RECOVERY UPON THE COUNTER-BOND:
- When the judgment has become executory, the
surety or sureties on any counter-bond given
pursuant to the provisions of this Rule to secure the
payment of the judgment shall become charged on
such counter-bond and bound to pay the judgment
obligee upon demand the amount due under the
judgment, which amount may be recovered from
such surety or sureties after notice and summary
hearing in the same action. (Sec. 17, Rule 57)
Section 18: Disposition of money deposited
DISPOSITION OF MONEY DEPOSITED:
- Where the party against whom attachment had been
issued has deposited money instead of giving
counter-bond, it shall be applied under the direction
of the court to the satisfaction of any judgment
rendered in favor of the attaching party, and after
satisfying the judgment the balance shall be
refunded to the depositor or his assignee. If the
judgment is in favor of the party against whom
attachment was issued, the whole sum deposited
must be refunded to him or his assignee. (Sec. 18,
Rule 57)
Section 19: Disposition of attached property where
judgment is for party against whom attachment was
issued
DISPOSITION OF ATTACHED PROPERTY WHERE
JUDGMENT IS FOR PARTY AGAINST WHOM
ATTACHMENT WAS ISSUED:
- If judgment be rendered against the attaching party,
all the proceeds of sales and money collected or
received by the sheriff, under the order of
attachment, and all property attached remaining in
any such officer's hands, shall be delivered to the
party against whom attachment was issued, and the
order of attachment discharged. (Sec. 19, Rule 57)
Section 20: Claim for damages on account of improper,
irregular or excessive attachment
DAMAGES FOR A WRONGFUL ATTACHMENT:
- An application for damages on account of improper,
irregular or excessive attachment must be filed
before the trial or before appeal is perfected or
before the judgment becomes executory, with due
notice to the attaching party and his surety or
sureties setting forth the facts showing his right to
damages and the amount thereof. Such damages
may be awarded only after proper hearing and shall
be included in the judgment on the main case.
- If the judgment of the appellate court be 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 in the
appellate court, with notice to the party in whose
favor the attachment was issued or his surety or
sureties, before the judgment of the appellate court
becomes executory. The appellate court may allow
the application to be heard and decided by the trial
court.
- Nothing herein contained shall prevent the party
against whom the attachment was issued from
recovering in the same action the damages awarded
to him from any property of the attaching party not
exempt from execution should the bond or deposit
given by the latter be insufficient or fail to fully satisfy
the award. (Sec. 20, Rule 57)
ADDITIONAL NOTES:
- Where there is wrongful attachment, the attachment
defendant may recover actual damages even without
proof that the attachment plaintiff acted in bad faith
obtaining the attachment. However, if it is alleged
and established that the attachment was not merely
wrongful but also malicious, the attachment
defendant may recover moral damages and
exemplary damages as well. (Sps. Yu vs. Ngo Yet Te,
514 SCRA 423)
- The “Proper Hearing” requirement ties with the
indispensable demand of procedural due process.
Due notice to the adverse party and its surety setting
forth the facts supporting the applicant’s right to
damages and the amount thereof under the bond is
essential. No judgment for damages may be entered
and executed against the surety without giving it an
opportunity to be heard as to the reality or
reasonableness of the damages resulting from the
wrongful issuance of the writ. (Carlos vs. Sandoval,
471 SCRA 266)
- To merit an award of actual damages arising from a
wrongful attachment, the attachment defendant must
prove the fact of loss or injury suffered and the
amount thereof. Such loss of injury must be of the
kind which is not only capable of proof but must
actually be proved with a reasonable degree of
certainty. As to its amount, the same must be
measurable based on specific facts, and not on
guesswork or speculation. In particular, if the claim
for actual damages covers unrealized profits, the
amount of unrealized profits must be established and
supported by independent evidence of mean income
of the business undertaking interrupted by the illegal
seizure. (Sps. Yu vs. Ngo Yet Te, (Supra)
RULE 58
PRELIMINARY INJUNCTION
Section 1: Preliminary Injunction defined
DEFINITION OF A PRELIMINARY INJUNCTION:
- It is an order granted at any stage of an action or
proceeding prior to the judgment or final order,
requiring a party of a court, agency or a person to
refrain from a particular act or acts. (Sec. 1, Rule 58)
CIVIL PROCEDURE 123
 CIVIL PROCEDURE
Morillo Notes
- It may also require the performance of a particular STAGE OF PROCEEDINGS WHEN GRANTED:
act or acts, in which case it shall be known as a - Preliminary injunction is granted at any stage of the
preliminary mandatory injunction. (Sec. 1, Rule 58) action or proceedings prior to the judgment or final
order. (Sec. 1, Rule 58)
NATURE OF A PRELIMINARY INJUNCTION:
- Preliminary injunction is a preservation remedy for AGAINST WHOM THE WRIT OF PRELIMINARY
the protection of substantive rights or interests. It is INJUNCTION IS DIRECTED:
not a cause of action in itself but merely a provisional a. Party;
remedy, an adjunct to a main suit and subject to the b. Court;
latter’s outcome. (Estares vs. CA, 459 SCRA 604; c. Agency; or
Dela Rosa vs. Heirs of Juan Valdez, 654 SCRA 467) d. Person. (Sec. 1, Rule 58)

PRELIMINARY INJUNCTION AS AN EQUITABLE REMEDY: KINDS OF PRELIMINARY INJUNCTION:

- Equity = “He who goes to court must come with 1. Prohibitory Injunction - commands one to refrain
clean hands” (Palm Tree Estates vs. PNB, GR no. from doing a particular act.
159370, October 3, 2012) 2. Mandatory Injunction - commands the performance
- It is to be resorted to by a litigant to prevent or of some positive act to correct a wrong in the past.
preserve a right or interest where there is a pressing (Dela Rosa vs. Heirs of Juan Valdez, 654 SCRA 467)
necessity to avoid injurious consequences which
cannot be remedied under any standard of PRELIMINARY PROHIBITORY INJUNCTION
compensation. A petition for a writ of preliminary DISTINGUISHED FROM PRELIMINARY MANDATORY
injunction rests upon an alleged existence of an INJUNCTION:
emergency or of a special reason for such a writ
before the case can be regularly tried. By issuing a PRELIMINARY PRELIMINARY
writ of preliminary injunction, the court thereby PROHIBITORY MANDATORY
prevent a threatened or continued irreparable injury INJUNCTION INJUNCTION
to the plaintiff before a judgment can be rendered on
the claim. (Sps. Nisce vs. Equitable PCI-Bank, 516 When it requires one to refrain When it requires the
from a particular act or acts performance of a particular act
SCRA 231)
or acts because it commands
the performance of some
PRELIMINARY INJUNCTION NOT A JUDGMENT ON THE positive act to correct a wrong
MERITS: in the past
- A writ of preliminary injunction is generally based
solely on initial and incomplete evidence. The The act has not yet been The act has already been
evidence submitted during the hearing on an performed because it is performed and this act has
application for a writ of preliminary injunction is not restrained or prevented by the violated the rights of another.
conclusive or complete, for only a “sampling” is injunction
needed to give the trial court an idea of the
Purpose: To prevent a future or Purpose: To restore the Status
justification for the preliminary injunction pending the
threatened injury Quo and then preserve it.
decision of the case on the merits.
- An order granting a preliminary injunction is not a
The Status Quo is preserved; The Status Quo is restored;
final resolution or decision disposing of the case. It is The consummated acts cannot
based on a preliminary determination of the status be enjoined
quo and on petitioner’s entitlement to the writ.
- The findings of fact and opinion of a court when Source: Sec. 1, Rule 58; City Government of Butuan vs.
issuing the writ of preliminary injunction are Consolidated broadcasting System, 636 SCRA 320)
interlocutory in nature and made before the trial on
the merits is commenced or terminated. There may MAIN ACTION FOR INJUNCTION DISTINGUISHED FROM
be vital facts to be presented at trial which may not A PRELIMINARY INJUNCTION:
be obtained or presented during the hearing on the MAIN ACTION
application for the injunctive writ. The trial court
INJUNCTION PRELIMINARY
needs to conduct substantial proceedings in order to
(PERMANENT INJUNCTION
put the main controversy to rest” (Recto vs. Escaler,
INJUNCTION)
634 SCRA 180)
Independent main action Not a principal action and can
ISSUANCE OF THE WRIT AS SUBJECT TO JUDICIAL only exist as an incident to a
DISCRETION: principal action
- The issuance of the writ of preliminary injunction
rests upon the sound discretion of the trial court Seeks a judgment embodying a Seeks to preserve the Status
because it involves a factual determination which is final injunction. It perpetually Quo until the merits can be
not the function of the appellation court. (Sps. Castro restrains a person from the heard.
vs. Sps. Dela Cruz, 639 SCRA 187) commission or continuance of
an act or confirms the previous
preliminary mandatory
injunction.

Judgment to this must be An order granting this is not a

124 CIVIL PROCEDURE

 CIVIL PROCEDURE
Morillo Notes
assailed by a timely appeal final resolution or decision
disposing of the case and may
be challenged by a petition for
certiorari under Rule 65
Sources: Rule 58; Agoo Rice Mill vs. Land Bank, GR no.
173036, September 28,, 2012; Bacolod Water District vs.
Labayen, 446 SCRA 110; BPI vs. Homg, 666 SCRA 71;
Casilan vs. Ibanez, 6 SCRA 590; Recto vs. Escaler, 634 SCRA
180
EXAMPLE OF ACTS SUBJECT TO THE MAIN ACTION FOR
INJUNCTION:
a. Prying into the privacy of another’s residence;
b. Meddling with or disturbing the private life or family
relations of another;
c. Intriguing to cause another to be alienated from his
friends; and
d. Vexing or humiliating another on account of his
religious beliefs, lowly station in life place of birth,
physical defect, or other personal condition. (Art. 26,
NCC)
ACTION FOR INJUNCTION DISTINGUISHED FROM A
PETITION FOR DECLARATORY RELIEF:
ACTION FOR INJUNCTION PETITION FOR
DECLARATORY RELIEF
Ordinary Civil Action Special Civil Action
Seeks to enjoin or compel a Seeks a declaration of rights or
party to perform certain duties, or determination of any
acts. question or validity arising
under a statute, executive order
or regulation, ordinance, or any
other governmental regulation,
or under a deed, will, contract
or other written instrument,
under which his rights are
affected, and before breach or
violation.
Source: PDIC vs. Countryside Rural Bank, 640 SCRA 322
PRELIMINARY PROHIBITORY INJUNCTION
DISTINGUISHED FROM A PETITION FOR PROHIBITION:
PRELIMINARY
PETITION FOR
PROHIBITORY
PROHIBITION
INJUNCTION
Not an independent action An independent special civil
action
Generally directed against a Not directed against a party
party litigant, it may also be litigant against a tribunal,
directed against a court, an corporation, board, officer or
agency or person. person exercising judicial,
quasi-judicial or ministerial
functions
Applies even if there is no issue Applies when the acts or
of jurisdiction, grave abuse of proceedings of any tribunal,
discretion, or other similar acts corporation, board, officer or
which amount to lack of person are without or in excess
jurisdiction. of its or his jurisdiction, or with
grave abuse of discretion
amounting to lack of
jurisdiction. Hence, the basis of
prohibition is a jurisdictional
issue.
Source: Sec. 1, Rule 58; Sec. 2, Rule 65
PRELIMINARY MANDATORY INJUNCTION
DISTINGUISHED FROM A PETITION FOR MANDAMUS:
PRELIMINARY
PETITION FOR
MANDATORY
MANDAMUS
INJUNCTION
Provisional Remedy, Not Main Special Civil Action and a Main
or Independent Action Action
Generally directed against a Directed against a tribunal,
party litigant, it may also be board, officer or person.
issued against a court, agency
or person
Issued to require a party to Seeks a judgment commanding
perform an act in order to a tribunal, corporation, board,
restore the last peaceable and officer or person to perform a
uncontested status preceding duty which the law specifically
the controversy enjoins as a duty or a person
was unlawfully excluded from
the use and enjoyment of an
office to which such person is
entitled
Source: Sec. 1, Rule 58; Sec. 3, Rule 65)
Section 2: Who may grant preliminary injunction
WHO MAY GRANT PRELIMINARY INJUNCTION:
- A preliminary injunction may be granted by the court
where the action or proceeding is pending. If the
action or proceeding is pending in the Court of
Appeals or in the Supreme Court, it may be issued
by said court or any member thereof. (Sec. 2, Rule
58)
Section 3: Grounds for issuance of
preliminary injunction
GROUNDS FOR ISSUANCE OF PRELIMINARY
INJUNCTION:
a. That the applicant is entitled to the relief demanded,
and the whole or part of such relief consists in
restraining the commission or continuance of the act
or acts complained of, or in requiring the
performance of an act or acts either for a limited
period or perpetually;
b. That the commission, continuance or non-
performance of the act or acts complained of during
the litigation would probably work injustice to the
applicant; or
c. That a party, court, agency or a person is doing,
threatening, or is attempting to do, or is procuring or
suffering to be done some act or acts probably in
violation of the rights of the applicant respecting the
subject of the action or proceeding, and tending to
render the judgment ineffectual. (Sec. 3, Rule 58)
EXISTENCE OF A CLEAR AND UNMISTAKABLE RIGHT:
CIVIL PROCEDURE 125
 CIVIL PROCEDURE
Morillo Notes
- A clear legal right means one clearly founded in or
granted by law or is enforceable as a matter of law.
(Australian Professional vs. Municipality of Padre
Garcia, Batangas, 668 SCRA 253)
- In other words, for the writ to issue, the right sought
to be protected must be a present right, a legal right
which must be shown to be clear and positive.
Accordingly, this means that the applicants praying
for the issuance of a writ of preliminary injunction
“must show that they have an ostensible right to the
final relief prayed for in their complaint. (Juana
Complex vs. fil-Estate land, 667 SCRA 440)
Section 4: Verified application and
bond for preliminary injunction or
temporary restraining order
REQUISITES FOR ISSUANCE OF A WRIT OF
PRELIMINARY INJUNCTION OR A TEMPORARY
RESTRAINING ORDER:
a. The application in the action or proceeding is
verified, and shows facts entitling the applicant to the
relief demanded; and
b. Unless exempted by the court the applicant files with
the court where the action or proceeding is pending,
a bond executed to the party or person enjoined, in
an amount to be fixed by the court, to the effect that
the applicant will pay to such party or person all
damages which he may sustain by reason of the
injunction or temporary restraining order if the court
should finally decide that the applicant was not
entitled thereto. Upon approval of the requisite bond,
a writ of preliminary injunction shall be issued.
c. When an application for a writ of preliminary
injunction or a temporary restraining order is
included in a complaint or any initiatory pleading, the
case, if filed in a multiple-sala court, shall be raffled
only after notice to and in the presence of the
adverse party or the person to be enjoined. In any
event, such notice shall be preceded, or
contemporaneously accompanied, by service of
summons, together with a copy of the complaint or
initiatory pleading and the applicant's affidavit and
bond, upon the adverse party in the Philippines.
However, where the summons could not be served
personally or by substituted service despite diligent
efforts, or the adverse party is a resident of the
Philippines temporarily absent therefrom or is a
nonresident thereof, the requirement of prior or
contemporaneous service of summons shall not
apply.
d. The application for a temporary restraining order
shall thereafter be acted upon only after all parties
are heard in a summary hearing which shall be
conducted within twenty-four (24) hours after the
sheriff's return of service and/or the records are
received by the branch selected by raffle and to
which the records shall be transmitted immediately.
(Sec. 4, Rule 58)
POSTING OF A BOND:
- An applicant for preliminary injunction is required to
file a bond executed to the party or person sought to
be enjoined, to the effect that the applicant will pay
126 CIVIL PROCEDURE
to such party or person all damages which he may
sustain by reason of the injunction. The purpose of
the injunction bond is to protect the defendant
against loss or damage by reason of the injunction in
case the court finally decides that the plaintiff was
not entitled to it, and the bond is usually conditioned
accordingly. (Landbank vs. Heirs of Listana, 649
SCRA 416)
- However, The applicant for a writ of preliminary
injunction may be exempted by the court from
posting a bond. (Sec. 4(b), Rule 58)
- The party filing a bond shall serve a copy of such
bond on the other party. If the applicant’s bond is
found to be insufficient in amount, and a bond
sufficient in amount with sufficient sureties is not
filed, the injunction shall be dissolved. If the bond of
the adverse party is found to be insufficient in
amount and a bond sufficient in amount is not filed
forthwith, the injunction shall be granted or restored,
as the case may be. (Sec. 7, Rule 58)
Section 5: Preliminary injunction not granted without
notice; exception
NATURE OF A TEMPORARY RESTRAINING ORDER (TRO):
- It is issued to preserve the Status quo until the
hearing of the application for a writ of preliminary
injunction because the injunction cannot be issued
ex parte. (Bacolod Water District vs. Labayen, 446
SCRA 110)
PRELIMINARY INJUNCTION NOT GRANTED WITHOUT
NOTICE; EXCEPTION:
- No preliminary injunction shall be granted without
hearing and prior notice to the party or person
sought to be enjoined. If it shall appear from facts
shown by affidavits or by the verified application that
great or irreparable injury would result to the
applicant before the matter can be heard on notice,
the court to which the application for preliminary
injunction was made, may issue a temporary
restraining order to be effective only for a period of
twenty (20) days from service on the party or person
sought to be enjoined, except as herein provided.
Within the said twenty-day period, the court must
order said party or person to show cause, at a
specified time and place, why the injunction should
not be granted, determine within the same period
whether or not the preliminary injunction shall be
granted, and accordingly issue the corresponding
order. (Bar Matter No. 803, 17 February 1998)
- However, and subject to the provisions of the
preceding sections, if the matter is of extreme
urgency and the applicant will suffer grave injustice
and irreparable injury, the executive judge of a
multiple-sala court or the presiding judge of a single
sala court may issue ex parte a temporary restraining
order effective for only seventy-two (72) hours from
issuance but he shall immediately comply with the
provisions of the next preceding section as to service
of summons and the documents to be served
therewith. Thereafter, within the aforesaid seventy-
two (72) hours, the judge before whom the case is
pending shall conduct a summary hearing to
determine whether the temporary restraining order
 CIVIL PROCEDURE
Morillo Notes
shall be extended until the application for preliminary
injunction can be heard. In no case shall the total
period of effectivity of the temporary restraining order
exceed twenty (20) days, including the original
seventy-two hours provided herein.
- In the event that the application for preliminary
injunction is denied or not resolved within the said
period, the temporary restraining order is deemed,
automatically vacated. The effectivity of a temporary
restraining order is not extendible without need of
any judicial declaration to that effect and no court
shall have authority to extend or renew the same on
the same ground for which it was issued.
- However, if issued by the Court of Appeals or a
member thereof, the temporary restraining order
shall be effective for sixty (60) days from service on
the party or person sought to be enjoined. A
restraining, order issued by the Supreme Court or a
member thereof shall be effective until further orders.
(AM no. 07-7-12-SC)
Section 6: Grounds for objection to, or for motion of
dissolution of, injunction or restraining order
GROUNDS FOR OBJECTION TO, OR FOR MOTION OF
DISSOLUTION OF, INJUNCTION OR RESTRAINING
ORDER:
- The application for injunction or restraining order
may be denied, upon a showing of its insufficiency.
- The injunction or restraining order may also be
denied, or, if granted, may be dissolved, on other
grounds upon affidavits of the party or person
enjoined, which may be opposed by the applicant
also by affidavits. It may further be denied, or if
granted, may be dissolved, if it appears after hearing
that although the applicant is entitled to the
injunction or restraining order, the issuance or
continuance thereof, as the case may be, would
cause irreparable damage to the party or person
enjoined while the applicant can be fully
compensated for such damages as he may suffer,
and the former files a bond in an amount fixed by the
court conditioned that he will pay all damages which
the applicant may suffer by the denial or the
dissolution of the injunction or restraining order.
- If it appears that the extent of the preliminary
injunction or restraining order granted is too great, it
may be modified. (Sec. 6, Rule 58)
Section 7: Service of copies of bonds; effect of
disapproval of same
SERVICE OF COPIES OF BONDS; EFFECT OF
DISAPPROVAL OF THE SAME:
- The party filing a bond in accordance with the
provisions of this Rule shall forthwith serve a copy of
such bond on the other party, who may except to the
sufficiency of the bond, or of the surety or sureties
thereon. If the applicant's bond is found to be
insufficient in amount, or if the surety or sureties
thereon fail to justify, and a bond sufficient in amount
with sufficient sureties approved after justification is
not filed forthwith the injunction shall be dissolved. If
the bond of the adverse party is found to be
insufficient in amount, or the surety or sureties
thereon fail to justify a bond sufficient in amount with
sufficient sureties approved after justification is not
filed forthwith, the injunction shall be granted or
restored, as the case may be. (Sec. 7, Rule 58)
Section 8: Judgment to include damages against party
and sureties
JUDGMENT TO INCLUDE DAMAGES AGAINST PARTY
AND SURETIES:
- At the trial, the amount of damages to be awarded to
either party, upon the bond of the adverse party,
shall be claimed, ascertained, and awarded under
the same procedure prescribed in section 20 of Rule
57. (Sec. 8, Rule 58)
Section 9: When final injunction granted
WHEN FINAL INJUNCTION GRANTED:
- If after the trial of the action it appears that the
applicant is entitled to have the act or acts
complained of permanently enjoined the court shall
grant a final injunction perpetually restraining the
party or person enjoined from the commission or
continuance of the act or acts of confirming the
preliminary mandatory injunction. (Sec. 9, Rule 58)
RULE 59
RECEIVERSHIP
Section 1: Appointment of receiver
NATURE OF A RECEIVERSHIP:
- Receivership under Rule 59 is directed to the
property which is the subject of the action or
proceeding, and does not refer to the receivership
authorized under the Banking Laws and other laws. It
presupposes that there is an action or proceeding
and that the property subject of such action or
proceeding requires its preservation. (Riano (2012),
Civil Procedure vol. 2, p. 129)
PURPOSE OF RECEIVERSHIP:
- To protect and preserve the rights of the parties
during the pendency of the main action, during the
pendency of an appeal, or as an aid in the execution
of a judgment as when the writ of execution has
been returned unsatisfied. (Sec. 1, Rule 59; Arranza
vs. BF Homes, 333 SCRA 799)
MEANING OF A RECEIVER:
- It refers to a person appointed by the court in behalf
of all the parties to the action for the purpose of
preserving and conserving the property in litigation
and prevent its possible destruction or dissipation, if
it were left in the possession of any of the parties.
(Commodities Storage & Ice Plant vs. CA, 274 SCRA
439)
CIVIL PROCEDURE 127
 CIVIL PROCEDURE
Morillo Notes
- A receiver is not an agent or representative of any
party to the action. He is an officer of the court
exercising his functions in the interest of neither
plaintiff nor defendant, but for the common benefit of
all the parties in interest. (Pacific Merchandising
Corp. vs. Consolacion Insurance, 73 SCRA 564)
APPOINTMENT OF A PARTY OR CLERK OF COURT AS A
RECEIVER:
- Neither party to the litigation should be appointed as
a receiver without the consent of the other.
(Alcantara vs. Abbas, 9 SCRA 54)
- The appointment of a receiver is not a matter of
absolute right. It depends upon the sound discretion
of the court and is based on facts and circumstances
of each particular case. (Commodities Storage & Ice
Plant vs. CA, Supra)
CASES THAT JUSTIFY THE APPOINTMENT OF A
RECEIVER:
1. When it appears from the verified application, and such
other proof as the court may require, that the party
applying for the appointment of a receiver has an interest
in the property or fund which is the subject of the action
or proceeding, and that such property or fund is in
danger of being lost, removed, or materially injured
unless a receiver be appointed to administer and
preserve it (Sec. 1(a), Rule 59);
2. When it appears in an action by the mortgagee for the
foreclosure of a mortgage that the property is in danger
of being wasted or dissipated or materially injured, and
that its value is probably insufficient to discharge the
mortgage debt, or that the parties have so stipulated in
the contract of mortgage (Sec. 1(b), Rule 59);
3. After judgment, to preserve the property during the
pendency of an appeal, or to dispose of it according to
the judgment, or to aid execution when the execution has
been returned unsatisfied or the judgment obligor refuses
to apply his property in satisfaction of the judgment, or
otherwise to carry the judgment into effect (Sec. 1(c),
Rule 59);
4. Whenever in other cases it appears that the appointment
of a receiver is the most convenient and feasible means
of preserving, administering, or disposing of the property
in litigation (Sec. 1(d), Rule 59).
COURTS THAT CAN GRANT RECEIVERSHIP:
a. By the court in which the action is pending;
b. By the CA or any member thereof; or
c. By the SC, or any member thereof. (Sec. 1, Rule 59)
WHEN RECEIVERSHIP MAY BE AVAILED OF:
- Receivership may be availed of even after the
judgment has already become final and executory.
Under Sec. 1(d), Rule 59, it may be applied for to aid
in the execution of the judgment or to carry it into
effect.
REQUISITES FOR THE APPOINTMENT OF A RECEIVER:
1. A verified application must be filed by the party
applying for the appointment of a receiver;
2. The applicant must have an interest in the property
or funds subject of the action; That he must show
that the property or fund is in danger of being lost,
removed,materially altered, wasted or dissipated or
there is a need to preserve or administer the
128 CIVIL PROCEDURE
property, or that all the grounds justifying the
appointment of a receiver exist (Sec. 1, Rule 59);
3. The application must be with notice and set for
hearing. A hearing is necessary because the grounds
for a receivership require the resolution of factual
issues.
4. Before issuing the appointment of a receiver, the
court shall require the applicant to post a bond
executed to the party against whom the application
is presented. (Sec. 2, Rule 59); and
5. Before entering upon his duties, the receiver must be
sworn to perform his duties faithfully and shall file a
bond. (Sec. 4, Rule 59).
Section 2: Bond on appointment of receiver
KINDS OF BONDS:
a. The bond required before the appointment of a
receiver (Sec. 2, Rule 59); and
b. The bond required of a receiver before entering upon
his duties (Sec. 4, Rule 59).
Additional Note: Another bond is the one which the court
may require, at any time after the appointment of the receiver,
as further security for damages that may be sustained by the
other party by reason of such appointment. (Sec. 2, Rule 59)
BOND ON APPOINTMENT OF RECEIVER:
- Before issuing the order appointing a receiver the
court shall require the applicant to file a bond
executed to the party against whom the application
is presented, in an amount to be fixed by the court,
to the effect that the applicant will pay such party all
damages he may sustain by reason of the
appointment of such receiver in case the applicant
shall have procured such appointment without
sufficient cause; and the court may, in its discretion,
at any time after the appointment, require an
additional bond as further security for such
damages. (Sec. 2, Rule 59)
Section 3: Denial of application or
discharge of receiver
DENIAL OF APPLICATION OR DISCHARGE OF RECEIVER:
- The application may be denied, or the receiver
discharged, when the adverse party files a bond
executed to the applicant, in an amount to be fixed
by the court, to the effect that such party will pay the
applicant all damages he may suffer by reason of the
acts, omissions, or other matters specified in the
application as ground for such appointment. (Sec. 3,
Rule 59)
- The receiver may also be discharged if it is shown
that his appointment was obtained without sufficient
cause. (Sec. 3, Rule 59)
Section 4: Oath and bond of receiver
OATH AND BOND OF RECEIVER:
 CIVIL PROCEDURE
Morillo Notes
- Before entering upon his duties, the receiver shall be
sworn to perform them faithfully, and shall file a
bond, executed to such person and in such sum as
the court may direct, to the effect that he will
faithfully discharge his duties in the action or
proceeding and obey the orders of the court. (Sec. 4,
Rule 59)
Section 5: Service of copies of bonds;
effect of disapproval
SERVICE OF COPIES OF BONDS; EFFECT OF
DISAPPROVAL:
- The person filing a bond in accordance with the
provisions of this Rule shall forthwith serve a copy
thereof on each interested party, who may except to
its sufficiency or of the surety or sureties thereon.
- If either the applicant's or the receiver's bond is
found to be insufficient in amount, or if the surety or
sureties thereon fail to justify, and a bond sufficient in
amount with sufficient sureties approved after
justification is not filed forthwith, the application shall
be denied or the receiver discharged, as the case
may be.
- If the bond of the adverse party is found to be
insufficient in amount or the surety or sureties
thereon fail to justify, and a bond sufficient in amount
with sufficient sureties approved after justification is
not filed forthwith, the receiver shall be appointed or
re-appointed, as the case may be. (Sec. 5, Rule 59)
Section 6: General powers of receiver
GENERAL POWERS OF A RECEIVER:
1. To bring and defend actions in his own name in his
capacity as receiver;
2. To take and keep possession of the property subject
of the controversy;
3. To receive rents;
4. To collect debts due to himself as receiver or to the
fund, property, estate, person, or corporation of
which he is the receiver;
5. To compound for and compromise the same;
6. To make transfer;
7. To pay outstanding debts;
8. To divide the money and property that shall remain
among the persons legally entitled to receive the
same; and
9. Generally, to do such acts respecting the property as
the court may authorize. (Sec. 6, Rule 59)
INVESTMENT OF FUNDS BY RECEIVER:
- A receiver may not invest funds in his custody
without an order from the court and without the
written consent of all the parties to the action. (Sec.
6, Rule 59)
- A receiver has no right or power to make any
contract binding the property or fund in his custody
or to pay out funds in his hands without authority or
approval of the court. The custody of the receiver is
the custody of the court. His acts and possession are
the acts and possession of the courts, and his
contracts and liabilities are, in contemplation of law,
the contracts and the liabilities of the court. As a
necessary consequence, the receiver is subject to
the control and supervision of the court at every step
in his management of the property or funds placed in
his hands. He cannot operate independently of the
court, and cannot enter into any contract without its
approval. (Pacific Merchandising Corp vs.
Consolacion Insurance, 73 SCRA 564)
SUITS AGAINST A RECEIVER:
- No action may be filed against a receiver without
leave of the court which appointed him. (Sec. 6, Rule
59)
Section 7: Liability for refusal or neglect
to deliver property to receiver
LIABILITY FOR REFUSAL OR NEGLECT TO DELIVER
PROPERTY TO RECEIVER:
- A person who refuses or neglects, upon reasonable
demand, to deliver to the receiver all the property,
money, books, deeds, notes, bills, documents and
papers within his power or control, subject of or
involved in the action or proceeding, or in case of
disagreement, as determined and ordered by the
court, may be punished for contempt and shall be
liable to the receiver for the money or the value of the
property and other things so refused or neglected to
be surrendered, together with all damages that may
have been sustained by the party or parties entitled
thereto as a consequence of such refusal or neglect.
(Sec. 7, Rule 59)
Section 8: Termination of receivership; compensation of
receiver
TERMINATION OF RECEIVERSHIP; COMPENSATION OF
RECEIVER:
- Whenever the court, motu proprio or on motion of
either party, shall determine that the necessity for a
receiver no longer exists, it shall, after due notice to
all interested parties and hearing, settle the accounts
of the receiver, direct the delivery of the funds and
other property in his possession to the person
adjudged to be entitled to receive them and order the
discharge of the receiver from further duty as such.
The court shall allow the receiver such reasonable
compensation as the circumstances of the case
warrant, to be taxed as costs against the defeated
party, or apportioned, as justice requires. (Sec. 9,
Rule 59)
Section 9: Judgment to include recovery
JUDGMENT TO INCLUDE RECOVERY:
- The amount, if any, to be awarded to any party upon
any bond filed in accordance with the provisions of
this Rule, shall be claimed, ascertained, and granted
under the same procedure prescribed in section 20
of Rule 57. (Sec. 9, Rule 59)
CIVIL PROCEDURE 129
 CIVIL PROCEDURE
Morillo Notes
Property under Custodia Legis
RULE 60 cannot be the object hereof
REPLEVIN
The bond is double the value of
the property as stated in the
affidavit submitted in support of
the application
Section 1: Application
Can be availed even if the
property is in Custodia legis
The bond is equal to that fixed
by the court which is the
amount sufficient to satisfy the
applicant’s demand or the value
of the property to be attached

Source: Riano (2012), Civil Procedure Vol. 2, p. 142

NATURE OF A REPLEVIN:
- It is broadly understood as a form of principal WHEN A WRIT OF REPLEVIN MAY BE APPLIED FOR:
remedy and of a provisional relief. It may refer either - The writ may be applied for at the commencement of
to the action itself, ie. to regain the possession of the action, or any time before the answer. (Sec. 1,
personal chattels being wrongfully detained from the Rule 60)
plaintiff by another, or to the provisional remedy that
would allow the plaintiff to retain the thing during the
pendency of the action and hold it pendente lite. The Section 2: Affidavit and bond
action is primarily possessory in nature and generally
determines nothing more than the right of PROCEDURE FOR THE APPLICATION FOR REPLEVIN:
possession”. (BA Finance Corp. vs. CA, 258 SCRA 1. A party praying for Replevin must file an
102) “APPLICATION” for a writ of replevin. His
- Replevin is a possessory action, the gist of which is application must be filed at the commencement of
the right of possession in the plaintiff. The primary the action or at any time before the adverse party
relief sought therein is the return of the property in answers. (Sec. 1, Rule 60);
specie wrongfully detained by another person. It is 2. The application must show by an affidavit executed
an ordinary statutory proceeding to adjudicate rights by the (a) applicant; or (b) of some other person who
to the title or possession of personal property. personally knows the facts of the matters required
(Basaya vs. Militante, 156 SCRA 299) under the ROC. (Sec. 2, Rule 60);
- A foreclosure under a chattel mortgage may properly 3. The Affidavit shall:
be commenced only once there is default on the part a. particularly describe the property;
of the mortgagor of his obligation secured by the b. state that the applicant is the owner of the
mortgage. The replevin has been sought to pave the property or is entitled to the possession
way for the foreclosure of the object covered by the thereof;
chattel mortgage. (BA Finance Corp vs. CA, Supra) c. State that the property is wrongfully
detained by the adverse party, alleging the
REPLEVIN DISTINGUISHED FROM A PRELIMINARY cause of the detention according to the best
ATTACHMENT: of his knowledge, information, and belief;
PRELIMINARY d. state that the property has not been
REPLEVIN distrained or taken for a tax assessment or
ATTACHMENT
a fine pursuant to law, or seized under a writ
Purpose is to recover personal Purpose is not to recover any of execution or preliminary attachment, or
property capable of manuel property but to place the otherwise placed in Custodia Legis. If it has
delivery from the adverse party property under the custody of been seized, then the affidavit must state
the court to secure the that it is exempt from such seizure or
satisfaction of the judgment custody; and
that may be rendered in favor of e. state the actual market value of the
the applicant at some future
property. (Sec. 2, Rule 60)
time.
4. The applicant must give a bond, executed to the
adverse party in double the value of the property as
The personal property belongs The property does not belong
either to the plaintiff or one over to the plaintiff but to the stated in the affidavit. (Sec. 2, Rule 60)
which the plaintiff has a right of defendant.
possession PROPERTY IN CUSTODIA LEGIS:
- Replevin is not available when the property is in
Can be availed only when the Can be availed even if the Custodia Legis (under attachment or seized pursuant
defendant is in actual or property is in the custody of to law) because if it were otherwise, there would be
constructive possession of the third persons. interference with the possession before the function
personal property. of the law had been performed as to the process
under which the property was taken. (Chua vs. CA,
It extends only to personal Extends to all kinds of property,
222 SCRA 85)
property capable of manual real or personal or even
delivery incorporeal property. - A thing is in Custodia Legis when it is shown that it
has been and is subject to the official custody of a
May be availed of without In order to avail, the party judicial executive officer in pursuance of his
showing that the property is applying for the writ needs to execution of a legal writ. Only when property is
being concealed or disposed of show that the property is being lawfully taken by virtue of legal process is it
to the prejudice of the applicant removed, concealed or considered in the custody of the law, and not
disposed of in certain cases. otherwise. (Bagalihug vs. Fernandez, 198 SCRA 614)

130 CIVIL PROCEDURE

 CIVIL PROCEDURE
Morillo Notes
- Where personal property is seized under a search
warrant and there is reason to belive that the seizure
will not anymore be followed by the filing of a
criminal case, the proper remedy is the filing of an
action for replevin, and if there are conflicting claims
over the seized property, an interpleader may be filed
in the proper court, not necessarily the same one
which issued the search warrant. Where there is still
a probability that the seizure will be followed by the
filing of a criminal action or the criminal information
has actually been commenced, or filed, and actually
prosecuted, and there are conflicting claims over the
property seized, the proper remedy is to question the
validity of the search warrant in the same court which
issued it and not in any other branch of the said
court. (Chua vs. CA, 222 SCRA 85)
UNDERTAKING OF THE REPLEVIN BOND:
- The bond is for the return of the property to the
adverse party if such return be adjudged; and
payment to the adverse party of such sum as he may
recover from the applicant in the action. (Sec. 2, Rule
60)
Section 3: Order
ORDER OF THE COURT:
- Upon the filing of such affidavit and approval of the
bond, the court shall issue an order and the
corresponding writ of replevin, describing the
personal property alleged to be wrongfully detained
and requiring the sheriff forthwith to take such
property into his custody. (Sec. 3, Rule 60)
Section 4: Duty of sheriff
DUTY OF SHERIFF IN THE IMPLEMENTATION OF THE
WRIT OF REPLEVIN:
1. Upon receiving such order, the sheriff must serve a
copy thereof on the adverse party, together with a
copy of the application, affidavit and bond, and must
forthwith take the property, if it be in the possession
of the adverse party, or his agent, and retain it in his
custody.
2. If the property or any part thereof be concealed in a
building or enclosure, the sheriff must demand its
delivery, and if it be not delivered, he must cause the
building or enclosure to be broken open and take the
property into his possession.
3. After the sheriff has taken possession of the property
as herein provided, he must keep it in a secure place
and shall be responsible for its delivery to the party
entitled thereto upon receiving his fees and
necessary expenses for taking and keeping the
same. (Sec. 4, Rule 60)
4. If within five (5) days after the taking of the property
by the sheriff, the adverse party does not object to
the sufficiency of the bond, or of the surety or
sureties thereon; or if the adverse party so objects
and the court affirms its approval of the applicant's
bond or approves a new bond, or if the adverse party
requires the return of the property but his bond is
objected to and found insufficient and he does not
forthwith file an approved bond, the property shall be
delivered to the applicant. If for any reason the
property is not delivered to the applicant, the sheriff
must return it to the adverse party. (Sec. 6, Rule 60)
Section 5: Return of property
REDELIVERY BOND:
- If the adverse party objects to the sufficiency of the
applicant's bond, or of the surety or sureties thereon,
he cannot immediately require the return of the
property, but if he does not so object, he may, at any
time before the delivery of the property to the
applicant, require the return thereof, by filing with the
court where the action is pending a bond executed
to the applicant, in double the value of the property
as stated in the applicant's affidavit for the delivery
thereof to the applicant, if such delivery be adjudged,
and for the payment of such sum, to him as may be
recovered against the adverse party, and by serving
a copy of such bond on the applicant. (Sec. 5, Rule
60)
- Where the adverse party did not object to the other
party’s bond nor posted a redelivery bond to recover
the possession of the property taken under the writ
of replevin, the sheriff is under obligation to deliver
the property to the applicant. (Adoma vs. Gatcheco,
448 SCRA 299)
REQUIREMENTS FOR THE ADVERSE PARTY TO EFFECT
THE RETURN OF HIS PROPERTY UNDER THE CUSTODY
OF THE SHERIFF:
1. He should post a redelivery bond in an amount
double the value of the property;
2. The bond is executed to the applicant;
3. He should serve a copy of the bond to the applicant;
4. He must perform the above acts before the delivery
of the property to the applicant. This means within 5
days from the taking of the property by the sheriff;
5. The bond is sufficient. (Secs. 5 & 6, Rule 60)
Section 6: Disposition of property by sheriff
DISPOSITION OF PROPERTY BY SHERIFF:
- If within five (5) days after the taking of the property
by the sheriff, the adverse party does not object to
the sufficiency of the bond, or of the surety or
sureties thereon; or if the adverse party so objects
and the court affirms its approval of the applicant's
bond or approves a new bond, or if the adverse party
requires the return of the property but his bond is
objected to and found insufficient and he does not
forthwith file an approved bond, the property shall be
delivered to the applicant. If for any reason the
property is not delivered to the applicant, the sheriff
must return it to the adverse party. (Sec. 6, Rule 60)
Section 7: Proceedings where property
claimed by third person
PROCEEDINGS WHERE THE PROPERTY CLAIMED BY
THIRD PERSON:
- If the property taken is claimed by any person other
than the party against whom the writ of replevin had
CIVIL PROCEDURE 131
 CIVIL PROCEDURE
Morillo Notes
been issued or his agent, and such person makes an
affidavit of his title thereto, or right to the possession
thereof, stating the grounds therefor, and serves
such affidavit upon the sheriff while the latter has
possession of the property and a copy thereof upon
the applicant, the sheriff shall not be bound to keep
the property under replevin or deliver it to the
applicant unless the applicant or his agent, on
demand of said sheriff, shall file a bond approved by
the court to indemnify the third-party claimant in a
sum not less than the value of the property under
replevin as provided in section 2 hereof. In case of
disagreement as to such value, the court shall
determine the same. No claim for damages for the
taking or keeping, of the property may be enforced
against the bond unless the action therefor is filed
within one hundred twenty (120) days from the date
of the filing of the bond.
- The sheriff shall not be liable for damages, for the
taking or keeping of such property, to any such third-
party claimant if such bond shall be filed. Nothing
herein contained shall prevent such claimant or any
third person from vindicating his claim to the
property, or prevent the applicant from claiming
damages against a third-party claimant who filed a
frivolous or plainly spurious claim, in the same or a
separate action.
- When the writ of replevin is issued in favor of the
Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be
required, and in case the sheriff is sued for damages
as a result of the replevin, he shall be represented by
the Solicitor General, and if held liable therefor, the
actual damages adjudged by the court shall be paid
by the National Treasurer out of the funds to be
appropriated for the purpose. (Sec. 7, Rule 60)
Section 8: Return of papers
RETURN OF PAPERS:
- The sheriff must file the order, with his proceedings
indorsed, thereon, with the court within ten (10) days
after taking the property mentioned therein. (Sec. 8,
Rule 60)
Section 9: Judgment
JUDGMENT IN A REPLEVIN:
- After trial of the issues the court shall determine who
has the right of possession to and the value of the
property and shall render judgment in the alternative
for the delivery thereof to the party entitled to the
same, or for its value in case delivery cannot be
made, and also for such damages as either party
may prove, with costs. (Sec. 9, Rule 60)
Section 10: Judgment to include
recovery against sureties
JUDGMENT TO INCLUDE RECOVERY AGAINST
SURETIES:
- The amount, if any, to be awarded to any party upon
any bond filed in accordance with the provisions of
132 CIVIL PROCEDURE
this Rule, shall be claimed, ascertained, and granted
under the same procedure as prescribed in section
20 of Rule 57. (Sec. 10, Rule 60)
RULE 61
SUPPORT “PENDENTE LITE”
NATURE OF A SUPPORT PENDENTE LITE:
- It is an amount of support provisionally fixed by the
court in favor of the person or persons entitled
thereto during the pendency of an action for support.
Section 1: Application
APPLICATION OF SUPPORT OF SUPPORT PENDENTE
LITE:
- At the commencement of the proper action or
proceeding, or at any time prior to the judgment or
final order, a verified application for support
pendente lite may be filed by any party stating the
grounds for the claim and the financial conditions of
both parties, and accompanied by affidavits,
depositions or other authentic documents in support
thereof. (Sec. 1, Rule 61)
- In its frequent application, the main action is usually
for support and support pendente lite is the
provisional remedy.
- Note that the main action for support is not the only
basis for seeking support pendente lite. Art. 198,
Family Code (FC) declares that “During the
proceedings for legal separation or annulment of
marriage, and for declaration of nullity of marriage,
the spouses and their children shall be supported
from the properties of the absolute community or the
conjugal partnership.” This provision not only
identifies the source of the support but it also
impliedly authorized support pendente lite.
- Art. 203, FC, provides that “Support pendente lite
may be claimed in accordance with the ROC)
- Temporary support was granted in an action for
habeas corpus filed by the mother in behalf of a
minor child against the father, where the father has
recognized the child as his and has not been given
support in another action for support. (David vs. CA,
250 SCRA 82)
WHO MAY ASK FOR SUPPORT PENDENTE LITE?
- Any party as long as there are legal grounds to
support such an application. (Sec. 1, Rule 61)
WHEN TO APPLY FOR SUPPORT PENDENTE LITE?
- Support pendente lite may be applied for at the
commencement of the proper action or proceeding,
or at any time prior to the judgment or final order.
(Sec. 1, Rule 61)
Section 2: Comment
COMMENT:
- A copy of the application and all supporting
documents shall be served upon the adverse party,
 CIVIL PROCEDURE
Morillo Notes
who shall have five (5) days to comment thereon
unless a different period is fixed by the court upon
his motion. The comment shall be verified and shall
be accompanied by affidavits, depositions or other
authentic documents in support thereof. (Sec. 2,
Rule 61)
Section 3: Hearing
HEARING:
- After the comment is filed, or after the expiration of
the period for its filing, the application shall be set for
hearing not more than three (3) days thereafter. The
facts in issue shall be proved in the same manner as
is provided for evidence on motions. (Sec. 3, Rule
61)
Section 4: Order
PROCEDURE OF APPLICATION FOR SUPPORT
PENDENTE LITE:
1. Filing of a verified application for support pendente
lite:
- The verified application shall state the grounds for
the claim, and the financial conditions of both
parties.
- Such application shall be accompanied by affidavits,
depositions or other authentic documents in support
thereof. (Sec. 1, Rule 61)
- If the right to support is put in issue in the pleadings
or the fact from which the right to support arises has
not been established, the court cannot grant support
pendente lite. (Francisco vs. Zandueta, 61 Phil. 752)
2. The adverse party shall be asked to comment on the
Application:
- The period of the adverse party to comment on the
application shall be within 5 days from service upon
him of a copy of the application and supporting
documents to it. (Sec. 2, Rule 61)
- This comment shall be verified and accompanied by
affidavits, depositions or other authentic documents
in support thereof. (Sec. 2, Rule 61
3. Set for hearing:
- After the comment is filed, or after the expiration of
the time for its filing, the application shall be set for
hearing not more than 3 days thereafter. The facts in
issue in the hearing shall be proved in the same
manner as provided for evidence on motions. (Sec.
3, Rule 61)
4. Judgment:
- If the application is granted, the court shall fix the
amount of money to be provisionally paid or such
other forms of support as should be provided, taking
into account the necessities of the applicant and the
resources or means of the adverse party, and the
terms of payment or mode for providing the support.
(Sec. 4, Rule 61)
- If the application is denied, the principal case shall
be tried and decided as early as possible. (Sec. 4,
Rule 61)
- The amount fixed in the order is only provisional. It is
not final in character and can be modified depending
on the changing conditions affecting the ability of the
obligor/debtor to pay the amount fixed for support.
(San Juan vs. Valenzuela, 117 SCRA 926)
Section 5: Enforcement of order
ENFORCEMENT OF ORDER:
- If the adverse party fails to comply with an order
granting support pendente lite, the court shall, motu
proprio or upon motion; issue an order of execution
against him, without prejudice to his liability for
contempt.
- When the person ordered to give support pendente
lite refuses or fails to do so, any third person who
furnished that support to the applicant may, after due
notice and hearing in the same case obtain a writ of
execution to enforce his right of reimbursement
against the person ordered to provide such support.
(Sec. 5, Rule 61)
Section 6: Support in criminal cases
SUPPORT PENDENTE LITE IN CRIMINAL CASES:
- In criminal actions where the civil liability includes
support for the offspring as a consequence of the
crime and the civil aspect thereof has not been
waived, reserved and instituted prior to its filing, the
accused may be ordered to provide support
pendente lite to the child born to the offended party
allegedly because of the crime. (Sec. 6, Rule 61)
- The application therefor may be filed successively by
the offended party, her parents, grandparents or
guardian and the State in the corresponding criminal
case during its pendency, in accordance with the
procedure established under this Rule. (Sec. 6, Rule
61)
ADULTERY AS A DEFENSE:
- It is true that the adultery of the wife is a defense in
an action for support however, the alleged adultery
of the wife must be established by competent
evidence. The allegation that the wife has committed
adultery will not bar her from the right to receive
support pendente lite. Adultery is a good defense
and if properly proved and sustained will defeat the
action. (Reyes vs. Ines-Luciano, GR no. 48219, 88
SCRA 803)
Section 7: Restitution
RESTITUTION:
- When the judgment or final order of the court finds
that the person who has been providing support
pendente lite is not liable therefor, it shall order the
recipient thereof to return to the former the amounts
already paid with legal interest from the dates of
actual payment, without prejudice to the right of the
recipient to obtain reimbursement in a separate
action from the person legally obliged to give the
support. Should the recipient fail to reimburse said
amounts, the person who provided the same may
CIVIL PROCEDURE 133
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likewise seek reimbursement thereof in a separate
action from the person legally obliged to give such
support. (Sec. 7, Rule 61)
MISCELLANEOUS PROVISIONAL REMEDIES
PROVISIONAL REMEDIES (INTERIM RELIEFS) AVAILABLE
TO THE PETITIONER IN A PETITION FOR WRIT OF
AMPARO:
AM No. 07-9-12-SC (Rules on Writ of Amparo
SEC. 14. Interim Reliefs. — Upon filing of the petition or at
anytime before final judgment, the court, justice or judge may grant
any of the following reliefs:
(a) Temporary Protection Order. – The court, justice or judge, upon
motion or motu proprio, may order that the petitioner or the
aggrieved party and any member of the immediate family be
protected in a government agency or by an accredited person or
private institution capable of keeping and securing their safety. If
the petitioner is an organization, association or institution referred
to in Section 3(c) of this Rule, the protection may be extended to
the officers involved.
The Supreme Court shall accredit the persons and private
institutions that shall extend temporary protection to the petitioner
or the aggrieved party and any member of the immediate family, in
accordance with guidelines which it shall issue.
The accredited persons and private institutions shall comply with
the rules and conditions that may be imposed by the court, justice
or judge.
(b) Inspection Order. — The court, justice or judge, upon verified
motion and after due hearing, may order any person in possession
or control of a designated land or other property, to permit entry
for the purpose of inspecting, measuring, surveying, or
photographing the property or any relevant object or operation
thereon.
The motion shall state in detail the place or places to be inspected.
It shall be supported by affidavits or testimonies of witnesses
having personal knowledge of the enforced disappearance or
whereabouts of the aggrieved party.
If the motion is opposed on the ground of national security or of
the privileged nature of the information, the court, justice or judge
may conduct a hearing in chambers to determine the merit of the
opposition.
The movant must show that the inspection order is necessary to
establish the right of the aggrieved party alleged to be threatened
or violated.
The inspection order shall specify the person or persons authorized
to make the inspection and the date, time, place and manner of
making the inspection and may prescribe other conditions to
protect the constitutional rights of all parties. The order shall expire
five (5) days after the date of its issuance, unless extended for
justifiable reasons.
(c) Production Order. – The court, justice or judge, upon verified
motion and after due hearing, may order any person in possession,
custody or control of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute or contain
evidence relevant to the petition or the return, to produce and
permit their inspection, copying or photographing by or on behalf
of the movant.
134 CIVIL PROCEDURE
The motion may be opposed on the ground of national security or
of the privileged nature of the information, in which case the court,
justice or judge may conduct a hearing in chambers to determine
the merit of the opposition.
The court, justice or judge shall prescribe other conditions to
protect the constitutional rights of all the parties.
(d) Witness Protection Order. – The court, justice or judge, upon
motion or motu proprio, may refer the witnesses to the Department
of Justice for admission to the Witness Protection, Security and
Benefit Program, pursuant to Republic Act No. 6981.
The court, justice or judge may also refer the witnesses to other
government agencies, or to accredited persons or private
institutions capable of keeping and securing their safety.
PROVISIONAL REMEDIES (INTERIM RELIEFS) AVAILABLE
TO THE RESPONDENT IN A PETITION FOR A WRIT OF
AMPARO:
- Upon verified motion of the respondent and after due
hearing, the court, justice or judge may issue an
inspection order or production order under
paragraphs (b) and (c) of the preceding section.
- A motion for inspection order under this section shall
be supported by affidavits or testimonies of
witnesses having personal knowledge of the
defenses of the respondent. (Sec. 15, Rule 71)
SPECIAL CIVIL ACTIONS
[Rule 62 to Rule 71]
ORDINARY AND SPECIAL CIVIL ACTIONS:
- Both ordinary and special civil actions are governed
by the rules for ordinary civil actions, subject to the
specific rules prescribed for a specific civil action.
(Sec. 3(a), Rule 1).
- Although both types of actions are governed by the
rules for ordinary civil actions, there are certain rules
that are applicable only to specific civil actions. The
fact that an action is subject to certain special rules,
other than those applicable to ordinary civil actions,
is what makes a civil action special.
THE SPECIAL CIVIL ACTIONS IN THE ROC:
1. Interpleader (Rule 62);
2. Declaratory relief and similar remedies (Rule 63);
3. Review of judgments and final orders or resolutions
of the Commission on Elections and the Commission
on Audit (Rule 64);
4. Certiorari, Prohibition and Mandamus (Rule 65);
5. Quo Warranto (Rule 66);
6. Expropriation (Rule 57);
7. Foreclosure of real estate mortgage (Rule 68);
8. Partition (Rule 69);
9. Forcible entry and unlawful detainer (Rule 70)’ and
10. Contempt (Rule 72).
HOW SPECIAL CIVIL ACTIONS ARE INITIATED OR
COMMENCED:
BY PETITION: BY A COMPLAINT:
a. Declaratory relief and other a. Interpleader;
 CIVIL PROCEDURE
Morillo Notes
similar remedies; b. Expropriation;
b. Review of adjudications of c. Foreclosure of real estate
the COMELEC and COA; mortgage;
c. Certiorari, prohibition and d. Partition;
mandamus; e. Forcible Entry; and
d. Quo warranto; and f. Unlawful detainer
e. Contempt
RULE 62
INTERPLEADER
Section 1: When interpleader is proper
MEANING OF AN INTERPLEADER:
- It is a special civil action filed by a person against
whom two conflicting claims are made upon the
same subject matter and over which he claims no
interest whatever, or if he has an interest, it is one
which in whole or in part is not disputed by the
claimants. The action is brought against the
conflicting claimants to compel them to interplead
and litigate their claims among themselves. (SEC. 1,
rULE 62)
REQUISITES FOR AN INTERPLEADER:
a. There must be two or more claimants with adverse or
conflicting interests upon a subject matter;
b. The conflicting claims involve the same subject
matter;
c. The conflicting claims are made against the same
person (Plaintiffs);
d. The plaintiff has no claim upon the subject matter of
the adverse claims or if he has an interest at all, such
interest is not disputed by the claimant. (Sec. 1, Rule
62)
WHEN INTERPLEADER IS PROPER (WHEN IT IS FILED):
- An interpleader may originate from a situation where
a person has property in his custody over which he
himself asserts no interest but several persons claim
a right to the property. It may also arise when one,
who has an obligation to perform an act, is
confronted with conflicting claims asserting the right
to be entitled to the benefits of the performance of
the obligation. The person upon whom the conflicting
claims are made is faced with a legal problem
involving a determination of who among the
conflicting claimants has the legal right to receive
the property subject of the controversy or who
among them is entitled to the performance of the
obligation. (Riano (2014), Civil Procedure Vol. 2, pp.
192-193)
- An action for interpleader is proper when the lessee
does not know to whom payment of rentals should
be made due to conflicting claims on the property
(or on the right to collect). The remedy is afforded not
to protect a person against double liability but to
protect him against double vexation in respect of
one’s liability. (pasricha vs. Don Luis Dizon Realty,
548 SCRA 273)
- The action of interpleader is a remedy whereby a
person who has property whether personal or real, in
his possession, or an obligation to render wholly or
partially, without claiming any right in both, or claims
an interest which in whole or in part is not disputed
by the conflicting claimants, comes to court and asks
that the persons who claim the said property or who
consider themselves entitled to demand compliance
with the obligation, be required to litigate among
themselves, in order to determine finally who is
entitled to one or the other thing. The remedy is
afforded not to protect a person against a double
liability but to protect him against a double vexation
in respect of one liability. When the court orders that
the claimants litigate among themselves, there arises
in reality a new action and the former are styled
interpleaders, and in such a case the pleading which
initiates the action is called a complaint of
interpleader and not a cross-complaint. (Ocampo vs.
Tiroma, GR no. 147812, April 6, 2005)
COURT WITH JURISDICTION OVER AN ACTION FOR
INTERPLEADER:
- Where the civil action involves interest in real
property (aside from title to, or possession of, real
property), except actions for forcible entry and
unlawful detainer, the assessed value of the property
is determinative of jurisdiction. (Secs. 19(2) and 33(3),
BP 129 as amended by RA 7691)
- If the subject is one capable of pecuniary estimation
like where the interpleader has for its subject matter
the performance of an obligation, the RTC has
jurisdiction. (Sec. 19(1), BP 129)
- The MTC has exclusive original jurisdiction over civil
actions where the value of the personal property
does not exceed P300,000 or P400,000, as the case
may be, (BP 129 as amended by RA 7691)
HOW TO COMMENCE AN ACTION FOR INTERPLEADER?
- An interpleader is commenced by the filing of a
complaint. The action is brought by the person
against whom conflicting claims upon the same
subject matter are made. (Secs. 1-2, Rule 62)
INTERPLEADER DISTINGUISHED FROM INTERVENTION:
INTERPLEADER INTERVENTION
Special civil action, Ancillary action, dependent
independent and original upon the existence of a
previous pending action.
Commenced by filing of a Commenced by a motion for
complaint (being an original leave to intervene filed in a
action) pending case attaching thereto
the pleading-in-intervention.
Filed by a person who has no Filed by a person who has a
interest in the subject matter of legal interest in any of the
the action or if he has an following:
interest, the same is not a. The subject matter of the
disputed by the claimants. litigation;
b. The success of either of
the parties;
c. An interest against both;
or
d. He may be adversely
affected by the
disposition or distribution
CIVIL PROCEDURE 135
 CIVIL PROCEDURE
Morillo Notes
of property in the custody
of the court or of an
officer thereof.
The defendants are brought into The defendants are already
the action because they are parties to an existing suit not
sued and impleaded as such in because of the intervention but
the complaint. because of the original suit.
Source: Riano (2012), Civil Procedure Vol. 2, pp. 200-201
Section 2: Order
ORDER TO INTERPLEAD:
- Upon the filing of the complaint, the court shall issue
an order requiring the conflicting claimants to
interplead with one another. If the interests of justice
so require, the court may direct in such order that the
subject matter be paid or delivered to the court.
(Sec. 2, Rule 62)
Section 3: Summons
SUMMONS:
- Summons shall be served upon the conflicting
claimants, together with a copy of the complaint and
order. (Sec. 3, Rule 62)
- Also served together with the summons is a copy of
the complaint and the order.
Section 4: Motion to dismiss
MOTION TO DISMISS:
- Within the time for filing an answer, each claimant
may file a motion to dismiss on the ground of
impropriety of the interpleader action or on other
appropriate grounds specified in Rule 16. The period
to file the answer shall be tolled and if the motion is
denied, the movant may file his answer within the
remaining period, but which shall not be less than
five (5) days in any event, reckoned from notice of
denial. (Sec. 4, Rule 62)
- Note that AM No. 19-10-20-SC (2019 Amended
Rules of Civil Procedure) removed Rule 16.
EFFECT OF THE FILING OF A MOTION TO DISMISS ON
THE PERIOD TO ANSWER:
- The period to file an answer is interrupted or tolled by
the filing of a motion to dismiss. If the motion is
denied, the movant may file his answer within the
remaining period to answer, but which shall not be
less than 5 days in any event. This period shall be
counted from the notice of denial of the motion. (Sec.
4, Rule 62)
Section 5: Answer and other pleading
ANSWER:
- Each claimant shall file his answer setting forth his
claim within 15 days from service of the summons
upon him, serving a copy thereof upon each of the
other conflicting claimants. (Sec. 5, Rule 62)
136 CIVIL PROCEDURE
- The rule is clear as to what the answer should
contain. The rule provides that the answer shall set
forth the claim of the answering claimant.
DEFAULT:
- If any claimant fails to plead within the time fixed, the
court may, on motion, declare him in default and
thereafter render judgment barring him from any
claim in respect to the subject matter. (Sec. 5, Rule
62)
- Under this provision, the court is not authorized to
declare a claimant in default motu proprio. Any
declaration of default requires a prior motion to that
effect. The tenor of the rule suggests that a
declaration of default is not mandatory on the part of
the court. The use of word “may” leaves no doubt as
to the meaning of the rule.
- When the court declares a claimant in default, the
judgment to be rendered is specified by the rule. The
judgment is one that bars him from any claim in
respect to the subject matter. (Sec. 5, Rule 62)
REPLY:
- Each claimant shall file his answer setting forth his
claim within 15 days from service of the summons
upon him, serving a copy thereof upon each of the
other conflicting claimants. (Sec. 5, Rule 62)
- Under Sec. 5, Rule 62, the claimant served with the
answer may file his reply to the same. The rule does
not consider the filing of a reply mandatory. Recall
that even in an ordinary civil action, a party may or
may not file a reply because even if a reply is not
filed, all the new matters alleged in the answer are,
nevertheless, deemed controverted or denied.
OTHER PLEADINGS:
- the parties to an interpleader action may file
counterclaims, cross-claims, third-party complaints
and responsive pleadings thereto, as provided by the
ROC. (Sec. 6, Rule 62)
- Such pleadings may likewise be filed in an
interpleader because, as a rule, special civils are also
governed by the rules for ordinary civil actions,
subject to specific rules prescribed for a particular
special civil action. (Sec. 3(a), Rule 1)
Section 6: Determination
PRE-TRIAL:
- A pre-trial is also conducted in an interpleader action
in accordance with the ROC. (Sec. 6, Rule 62)
- Therefore, Rule 18 of the ROC shall also apply.
DETERMINATION; ADJUDICATION:
- The court shall determine the respective rights of the
claimants and shall adjudicate the several claims:
a. After the pleadings of the conflicting
claimants have been filed; and
b. The pre-trial has been conducted. (Sec. 6,
Rule 62)
Section 7: Docket and other lawful fees, costs and
litigation expenses as liens
 CIVIL PROCEDURE
Morillo Notes
DOCKET AND OTHER LAWFUL FEES:
- The docket and other lawful fees paid by the party
who filed a complaint under this Rule, as well as the
costs and litigation expenses, shall constitute a lien
or change upon the subject matter of the action,
unless the court shall order otherwise. (Sec. 7, Rule
62)
RULE 63
DECLARATORY RELIEF AND
SIMILAR REMEDIES
TWO TYPES OF ACTION UNDER RULE 63:
a. An action for Declaratory Relief; and
b. Similar Remedies
A. DECLARATORY RELIEF:
MEANING OF A DECLARATORY RELIEF:
- It is an action by any person interested in a deed,
will, contract or other written instrument, executive
order or resolution, to determine any question of
construction or validity arising from the instrument,
executive order or regulation, or statute; and for a
declaration of his rights and duties thereunder.
(Province of Camarines Sur vs. CA, 600 SCRA 569)
- The only issue that may be raised in such a petition
is the question of construction or validity of
provisions in an instrument or statute. (Province of
Camarines Sur vs. CA, Supra)
PURPOSE OF DECLARATORY RELIEF:
● To determine any question of construction or validity
arising from the subject of the action; and
● To seek for a declaration of the petitioner’s rights
thereunder. (Sec. 1, Rule 63; Social Justice Society
vs. Lina, 574 SCRA 462)
● To secure an authoritative statement of the rights
and obligations of the parties under a contract or
statute for their guidance in the enforcement or
compliance with the same. (Meralco vs. Phil.
Consumers Foundation, 374 SCRA 262)
WHEN COURT MAY REFUSE A JUDICIAL DECLARATION:
- In declaratory relief, the court is given the discretion
to act or not to act on the petition. Therefore, it may
choose not to construct the instrument sought to be
construed or refrain from declaring the rights of the
petitioner under the deed or law. (Sec. 5, Rule 63)
- A refusal of the court to declare a right to construe
an instrument may be considered as the functional
equivalent of the dismissal of the petition on any of
the two grounds under Sec. 5, Rule 63, namely:
a. Where a decision on the petition would not
terminate the uncertainty or controversy
which gave rise to the action; or
b. Where the declaration or construction is not
necessary and proper under the
circumstances as when the instrument or
the statute has already been breached.
- On the other hand, the cort does not have the
discretion to refuse to act with respect to actions
described as “similar remedies”. Sec. 5, Rule 63
expressly states “Except in actions falling under the
second paragraph of Section 1 of this Rule”
REQUISITES FOR DECLARATORY RELIEF:
1. The subject matter of the controversy must be a
deed, will, contract or other written instrument,
statute, executive order or regulation, or ordinance;
2. The terms of said documents and the validity thereof
are doubtful and require judicial construction;
3. There must have been no breach of documents in
question;
4. There must be an actual justiciable controversy or
the “ripening seeds” of one between persons whose
interests are adverse;
5. The issue must be ripe for judicial determination;
and
6. Adequate relief is not available through other means
or other forms of action or proceeding. (Almeda vs.
Bathala Marketing, 542 SCRA 470)
SUBJECT MATTER IN A PETITION FOR DECLARATORY
RELIEF (EXCLUSIVE LIST):
a. Deed;
b. Will;
c. Contract or other written instrument;
d. Statute;
e. Executive Order or regulation;
f. Ordinance; or
g. Any other governmental regulation. (Sec. 1, Rule 63)
INSTANCES WHERE A PETITION FOR DECLARATORY
RELIEF IS NOT PROPER:
1. An action for declaratory relief to ask the court to
declare his filliation and consequently his hereditary
rights is improper (Edades vs. Edades, 99 Phil. 675)
2. An action for declaratory relief is not proper to
resolve doubts concerning one’s citizenship (Lim vs.
Republic, 37 SCRA 78)
3. A petition for declaratory relief cannot properly have
a court decision as its subject matter. A court
decision cannot be interpreted as included within
the purview of the words “other written instrument”
because the provisions of the ROC already provide
for the ways by which an ambiguous or doubtful
decision may be corrected or clarified without need
of resorting to the expedient prescribed by a petition
for declaratory relief. (Reyes vs. Dizon, 628 SCRA 1)
ISSUE AND RELIEF:
- The only issue that may be raised in such a petition
is the question of construction or validity of
provisions in an instrument or statute (Province of
Camarines Sur vs. CA, 600 SCRA 569)
- The remedy sought is the declaration of the
petitioner’s rights or duties thereunder. (Sec. 1, Rule
63)
WHO MAY FILE THE PETITION:
- Where the subject of the petition is a deed, will,
contract or other written instrument, the petition is
commenced by “any person interested” therein.
(Sec. 1, Rule 63; Social justice Society vs. Lina, 574
SCRA 462)
CIVIL PROCEDURE 137
 CIVIL PROCEDURE
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- Those who may sue under the contract should have
an interest in the contract like the parties, their
assignees and heirs as required by substantive law.
(Art. 1311, NCC)
OTHER PARTIES:
- All persons who have or claim any interest which
would be affected by the declaration shall be made
parties; and no declaration shall, except as otherwise
provided in these Rules, prejudice the rights of
persons not parties to the action. (Sec. 2, Rule 63)
- Since their rights are not to be prejudiced by their
non-inclusion, the failure to implead such persons
does not, therefore, affect the jurisdiction of the court
over the petition (Baguio Citizen’s Action vs. City
Council, 121 SCRA 368)
- In any action which involves the validity of a statute,
executive order or regulation, or any other
governmental regulation, the Solicitor General shall
be notified by the party assailing the same and shall
be entitled to be heard upon such question. (Sec. 3,
Rule 63)
COURT WITH JURISDICTION:
- The action for declaratory relief should be brought “in
the appropriate RTC”. (Sec. 1, Rule 63)
- The purpose of the petition is to ask the court to
determine any question of construction or validity
arising from the subject matter thereof, and for the
declaration of rights and duties thereunder. hence,
the subject matter of a petition for declaratory relief
raises issues which are not capable of pecuniary
estimation and must be filed with the RTC. (Sec. 1,
Rule 63; Sec. 19(1), BP 129)
B. SIMILAR REMEDIES:
TYPES OF SIMILAR REMEDIES:
a. Action for the reformation of an instrument (Arts.
1359-1369, NCC);
b. Action for quieting of title to real property or remove
clouds therefrom. (Arts. 476-481, NCC); and
c. Action for consolidation of ownership (Art. 1607,
NCC)
REFORMATION OF AN INSTRUMENT:
- An action for reformation is not one brought to
reform a contract but “to reform the instrument”
evidencing the contract.
- The instrument is to be reformed because despite
the meeting of minds of the parties as to the object
and cause of the contract, the instrument which is
supposed to embody the agreement of the parties
does not reflect their tre agreement by reason of
mistake, fraud, inequitable conduct or accident. The
action is brought so the true intention of the parties
may be expressed in the instrument (Art. 1359, NCC)
REFORMATION OF AN INSTRUMENT VS. ANNULMENT
OF CONTRACT:
- Where the consent of a party to a contract has been
procured by fraud, inequitable conduct or accident,
and an instrument was executed by the parties in
accordance with the contract, what is defective is
the contract itself because of the vitiation of consent.
138 CIVIL PROCEDURE
The remedy is not to bring an action for reformation
of the instrument but to file an action for annulment
of the contract. (Art. 1359, NCC)
- a contract where one party’s consent is vitiated is
voidable or annullable. (Art. 1330 and 1390(2), NCC)
EXAMPLES OF REFORMATION OF AN INSTRUMENT:
a. When the parties have agreed on the area of the land
subject of the sale. By an act of fraud of the seller
who prepared the deed of sale, a smaller area is
indicated in the deed. Here, the defect is not found in
the meeting of the minds but in the deed of sale,
which is the instrument. (See Art. 1305, NCC);
b. When a mutual mistake of the parties causes the
failure of the instrument to disclose their real
agreement, said instrument may be reformed. (Art.
1361, NCC);
c. An instrument may be reformed if the instrument
does not express the true intention of the parties
because of lack of skill of the person drafting the
instrument (Art. 1364, NCC);
d. If the parties agree upon the mortgage or pledge of
property, but the instrument states that the property
is sold absolutely or with a right of repurchase,
reformation of the instrument is proper. (Art. 1365,
NCC)
WHERE REFORMATION OF THE INSTRUMENT CANNOT
BE BROUGHT:
a. Simple donations inter vivos wherein no condition is
imposed;
b. Wills; or When the real agreement is void. (Art. 1366,
NCC)
CONSOLIDATION OF OWNERSHIP:
- The concept of consolidation of ownership under Art.
1607, NCC has its origins in the substantive
provisions of the law on sales. Under the law, a
contract of sale may be extinguished either by (a)
Legal redemption (Art.. 1619, NCC); or (b)
Conventional redemption (Art. 1601, NCC)
- The action brought to consolidate ownership is not
for the purpose of consolidating the ownership of the
property in the person of the vendee or buyer but for
the registration of the property. The lapse of the
redemption period without the seller ‘a retro’
exercising his right of redemption consolidates
ownership or title upon the person of the vendee by
operation of law.
- Art. 1607, NCC, requires the filing of the petition to
consolidate ownership because the law precludes
the registration of the consolidated title without a
judicial order.
LEGAL REDEMPTION (RETRACTO LEGAL):
- It is a statutory mandated redemption of a property
previously sold.
- For instance, a co-owner of a property may exercise
the right of redemption in case the shares of all the
other co-owners or any of them are sold to a third
person. (Art. 1620, NCC)
- The owners of adjoining lands shall have the right of
redemption when a piece of rural land with an area of
one hectare or less is alienated. (Art. 1621, NCC)
CONVENTIONAL REDEMPTION (PACTO DE RETRO):
 CIVIL PROCEDURE
Morillo Notes
- It is one that is not mandated by statute but one
which takes place because of the stipulation of the
parties to the sale.
- Conventional redemption shall take place when the
vendor reserves the right to repurchase the thing
sold. (Art. 1601, NCC)
- the period of redemption may be fixed by the parties
which cannot exceed 10 years from the date of the
contract. In the absence of an express agreement,
the redemption period shall be 4 years from the date
of the contract (Art. 1606, NCC)
QUIETING OF TITLE; QUASI IN REM ACTION:
- This action is brought to remove a cloud on title to
real property or any interest therein. The action is
called one to quiet title to real property. Whenever
there is a cloud on title to real property or any
interest therein, by reason of any instrument, record,
claim, encumbrance or proceeding which is
apparently valid or effective but is in truth and in fact
invalid, ineffective, voidable, or unenforceable, and
may be prejudicial to said title, an action may be
brought to remove such cloud or to quiet the title. An
action may also be brought to prevent a cloud from
being cast upon title to real property or any interest
therein. (Art. 476, NCC)
- There may also be an action to quiet title or remove a
cloud therefrom when the contract, instrument or
other obligation has been extinguished or has
terminated, or has been barred by extinctive
prescription. (Art. 478, NCC)
- The plaintiff must have legal or equitable title to, or
interest in the real property which is the subject
matter of the action. He need not be in possession of
said property. (Art. 477, NCC)
REQUISITES FOR QUIETING OF TITLE:
1. The plaintiff or complainant has a legal or equitable
title or interest in the real property subject of the
action; and
2. the deed, claim, encumbrance, or proceeding
claimed to be casting cloud on his title must be
shown to be in fact invalid or inoperative despite its
prima facie appearance of validity or legal efficacy.
(Phil-Ville Development vs. Bonifacio, 651 SCRA 327)
RULE 64
REVIEW OF JUDGMENTS AND FINAL ORDERS OR
RESOLUTIONS OF THE COMMISSION ON ELECTIONS
AND THE COMMISSION ON AUDIT
CONSTITUTIONAL BASIS OF RULE 64:
- “x x Unless otherwise provided by this Constitution
or by law, any decision, order, or ruling of each
commission may be brought to the SC on certiorari
by the aggrieved party within 30 days from receipt of
a copy thereof.” (Sec. 7, Art. IX-A, 1987 Constitution)
MODE OF REVIEW:
- A judgment or final order or resolution of the
Commission on Elections and the Commission on
Audit may be brought by the aggrieved party to the
Supreme Court on certiorari under Rule 65, except
as hereinafter provided. (Sec. 2, Rule 64)
RAISING JURISDICTIONAL GROUNDS:
- The petitioner must anchor the petition on
jurisdictional grounds, such as that the commission
concerned acted without or in excess of jurisdiction
or with grave abuse of discretion amounting to lack
or excess of jurisdiction.
- it was ruled that the office of the petition for certiorari
is not to correct simple errors of judgment; any resort
to the said petition under Rule 64, in relation to Rule
65, of the ROC is limited to the resolution of
jurisdictional issues. To raise the issue of the validity
of a prepayment scheme in assailing a COA
resolution is to raise an issue that is inherently a
question of fact or an error of judgment which is not
within the ambit of Rule 64 petition. (Reyna vs.
Commission on Audit, 642 SCRA 210)
TIME TO FILE PETITION:
- The petition shall be filed within thirty (30) days from
notice of the judgment or final order or resolution
sought to be reviewed.
- The filing of a motion for new trial or reconsideration
of said judgment or final order or resolution, if
allowed under the procedural rules of the
Commission concerned, shall interrupt the period
herein fixed. If the motion is denied, the aggrieved
party may file the petition within the remaining
period, but which shall not be less than five (5) days
in any event, reckoned from notice of denial. (Sec. 3,
Rule 64)
DOCKET AND OTHER LAWFUL FEES:
- Upon the filing of the petition, the petitioner shall pay
to the clerk of court the docket and other lawful fees
and deposit the amount of P500.00 for costs. (Sec.
4, Rule 64)
FORM AND CONTENTS OF THE PETITION:
- The petition shall be verified and filed in eighteen (18)
legible copies. The petition shall name the aggrieved
party as petitioner and shall join as respondents the
Commission concerned and the person or persons
interested in sustaining the judgment, final order or
resolution a quo. The petition shall state the facts
with certainty, present clearly the issues involved, set
forth the grounds and brief arguments relied upon for
review, and pray for judgment annulling or modifying
the questioned judgment, final order or resolution.
Findings of fact of the Commission supported by
substantial evidence shall be final and non-
reviewable. (Sec. 5, Rule 64)
- The petition shall be accompanied by a clearly
legible duplicate original or certified true copy of the
judgment, final order or resolution subject thereof,
together with certified true copies of such material
portions of the record as are referred to therein and
other documents relevant and pertinent thereto. The
requisite number of copies of the petition shall
contain plain copies of all documents attached to the
original copy of said petition. (Sec. 5, Rule 64)
- The petition shall state the specific material dates
showing that it was filed within the period fixed
herein, and shall contain a sworn certification against
forum shopping as provided in the third paragraph of
section 3, Rule 46. (Sec. 5, Rule 64)
CIVIL PROCEDURE 139
 CIVIL PROCEDURE
Morillo Notes
- The petition shall further be accompanied by proof of
service of a copy thereof on the Commission
concerned and on the adverse party, and of the
timely payment of docket and other lawful fees. (Sec.
5, Rule 64)
EFFECT OF FAILURE TO COMPLY WITH THE
REQUIREMENTS:
- The failure of petitioner to comply with any of the
foregoing requirements shall be sufficient ground for
the dismissal of the petition. (Sec. 5, Rule 64)
ORDER TO COMMENT:
- If the Supreme Court finds the petition sufficient in
form and substance, it shall order the respondents to
file their comments on the petition within ten (10)
days from notice thereof; otherwise, the Court may
dismiss the petition outright.
- The Court may also dismiss the petition if it was filed
manifestly for delay or the questions raised are too
unsubstantial to warrant further proceedings. (Sec. 6,
Rule 64)
COMMENTS OF RESPONDENTS:
- The comments of the respondents shall be filed in
eighteen (18) legible copies.
- The original shall be accompanied by certified true
copies of such material portions of the record as are
referred to therein together with other supporting
papers.
- The requisite number of copies of the comments
shall contain plain copies of all documents attached
to the original and a copy thereof shall be served on
the petitioner.
- No other pleading may be filed by any party unless
required or allowed by the Court. (Sec. 7, Rule 64)
EFFECT OF FILING:
- The filing of a petition for certiorari shall not stay the
execution of the judgment or final order or resolution
sought to be reviewed, unless the Supreme Court
shall direct otherwise upon such terms as it may
deem just. (Sec. 8, Rule 64)
SUBMISSION FOR DECISION:
- Unless the Court sets the case for oral argument, or
requires the parties to submit memoranda, the case
shall be deemed submitted for decision upon the
filing of the comments on the petition, or of such
other pleadings or papers as may be required or
allowed, or the expiration of the period to do so.
(Sec. 9, Rule 64)
RULE 65
CERTIORARI, PROHIBITION AND MANDAMUS
CERTIORARI
Section 1. Petition for certiorari. — When any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted
140 CIVIL PROCEDURE
without or in excess its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is
no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty
and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the
judgment, order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent thereto, and a
sworn certification of non-forum shopping as provided in the third
paragraph of section 3, Rule 46.
CERTIORARI UNDER RULE 65 IS AN ORIGINAL AND
INDEPENDENT ACTION (A SPECIAL CIVIL ACTION):
- Certiorari, as a special civil action, is an original
action invoking the original jurisdiction of a court to
annul or modify the proceedings of a tribunal, board
or officer exercising judicial or quasi-judicial
functions. It is an original and independent action
that is not a part of the trial or the proceedings on
the complaint filed before the trial court. (Siok Ping
Tang vs. Subic Bay Distribution, 638 SCRA 457)
- Certiorari is an independent action which is not part
or a continuation of the trial which resulted in the
rendition of the judgment complained of (Juliano-
Llave vs. Republic, 646 SCRA 637)
- Since certiorari as a special civil action is an original
action, the adverse decision rendered on such action
is appealable, and not reviewable by another petition
for certiorari. (Magtoto vs. CA, GR no. 175792,
November 21, 2012)
CERTIORARI UNDER RULE 65 IS DIFFERENT FROM
CERTIORARI UNDER RULE 45:
- Certiorari under Rule 65 is not a mode of appeal. It is
the certiorari under Rule 45 which is the mode of
appeal and traditionally called a “petition for review
on certiorari”. The certiorari under Rule 65 is known
as a “Petition for certiorari.” (Riano (2012) Civil
Procedure Vol. 2, p. 251)
CERTIORARI REVIEWS ERRORS OF JURISDICTION, NOT
ERRORS OF JUDGMENT:
- A petition for certiorari under Rule 65 is limited to
correction of errors of jurisdiction or grave abuse of
discretion amounting to lack or excess of jurisdiction.
(Tan vs. Antazo, 544 SCRA 337). On the other hand,
in a petition for review on certiorari under Rule 45,
the scope of the SC’s judicial review is limited to
reviewing only errors of law, not of fact. (Dela Rosa
vs. Michaelmar Phils., Inc., 648 SCRA 721)
- Certiorari under Rule 65 is a remedy to correct acts
of any tribunal, board or officer exercising judicial or
quasi-judicial functions that constitute grave abuse
of discretion amounting to lack or excess of
jurisdiction. (AAG Trucking vs. Yuag, 659 SCRA 91)
ERROR OF JUDGMENT → One which the court may commit
in the exercise of its jurisdiction, and which error is reviewable
only by an appeal. (San Fernando Rural Bank vs. Pampanga
Omnibus, 520 SCRA 564)
ERROR OF JURISDICTION → One where the act complained
of was issued by the court without or in excess of jurisdiction
 CIVIL PROCEDURE
Morillo Notes
and which error is correctible only by the extraordinary writ of
certiorari. San Fernando Rural Bank vs. Pampanga Omnibus,
520 SCRA 564)
CERTIORARI DISTINGUISHED FROM APPEAL:
SPS. LEYNES vs. FORMER TENTH
DIVISION OF THE COURT OF APPEALS
GR No. 154462, January 19, 2011
Between an appeal and a petition for certiorari, there are
substantial distinctions which shall be explained below.
As to the Purpose. Certiorari is a remedy designed for the
correction of errors of jurisdiction, not errors of judgment. In Pure
Foods Corporation v. NLRC, we explained the simple reason for
the rule in this light:
"When a court exercises its jurisdiction, an error committed while
so engaged does not deprive it of the jurisdiction being exercised
when the error is committed. If it did, every error committed by a
court would deprive it of its jurisdiction and every erroneous
judgment would be a void judgment. This cannot be allowed. The
administration of justice would not survive such a rule.
Consequently, an error of judgment that the court may commit in
the exercise of its jurisdiction is not correct[a]ble through the
original civil action of certiorari."
The supervisory jurisdiction of a court over the issuance of a writ of
certiorari cannot be exercised for the purpose of reviewing the
intrinsic correctness of a judgment of the lower court – on the basis
either of the law or the facts of the case, or of the wisdom or legal
soundness of the decision. Even if the findings of the court are
incorrect, as long as it has jurisdiction over the case, such
correction is normally beyond the province of certiorari. Where the
error is not one of jurisdiction, but of an error of law or fact – a
mistake of judgment – appeal is the remedy.
As to the Manner of Filing. Over an appeal, the CA exercises its
appellate jurisdiction and power of review. Over a certiorari, the
higher court uses its original jurisdiction in accordance with its
power of control and supervision over the proceedings of lower
courts. An appeal is thus a continuation of the original suit, while a
petition for certiorari is an original and independent action that was
not part of the trial that had resulted in the rendition of the
judgment or order complained of. The parties to an appeal are the
original parties to the action. In contrast, the parties to a petition
for certiorari are the aggrieved party (who thereby becomes the
petitioner) against the lower court or quasi-judicial agency, and the
prevailing parties (the public and the private respondents,
respectively).
As to the Subject Matter. Only judgments or final orders and
those that the Rules of Court so declare are appealable. Since the
issue is jurisdiction, an original action for certiorari may be directed
against an interlocutory order of the lower court prior to an appeal
from the judgment; or where there is no appeal or any plain,
speedy or adequate remedy.
As to the Period of Filing. Ordinary appeals should be filed within
fifteen days from the notice of judgment or final order appealed
from. Where a record on appeal is required, the appellant must file
a notice of appeal and a record on appeal within thirty days from
the said notice of judgment or final order. A petition for review
should be filed and served within fifteen days from the notice of
denial of the decision, or of the petitioner’s timely filed motion for
new trial or motion for reconsideration. In an appeal by certiorari,
the petition should be filed also within fifteen days from the notice
of judgment or final order, or of the denial of the petitioner’s motion
for new trial or motion for reconsideration.
On the other hand, a petition for certiorari should be filed not later
than sixty days from the notice of judgment, order, or resolution. If
a motion for new trial or motion for reconsideration was timely
filed, the period shall be counted from the denial of the motion.
As to the Need for a Motion for Reconsideration. A motion for
reconsideration is generally required prior to the filing of a petition
for certiorari, in order to afford the tribunal an opportunity to
correct the alleged errors. Note also that this motion is a plain and
adequate remedy expressly available under the law. Such motion
is not required before appealing a judgment or final order.
PETITION FOR REVIEW ON CERTIORARI (APPEAL BY
CERTIORARI) AND PETITION FOR CERTIORARI ARE
MUTUALLY EXCLUSIVE:
- “A petition for review on certiorari under Rule 45 and
a petition for certiorari under Rule 65 are mutually
exclusive remedies. Certiorari cannot co-exist with
an appeal or any other adequate remedy. If a petition
for review is available, even prescribed, the nature of
the questions of law intended to be raised on appeal
is of no consequence. It may well be that those
questions of law will treat exclusively of whether or
not the judgment or final order was rendered without
or in excess of jurisdiction, or with grave abuse of
discretion. This is immaterial. The remedy is appeal,
not certiorari as a special civil action. (Portillo vs.
Rudolf Lietz, GR no. 196539, October 10, 2012)
SOME PROCEEDINGS WHERE CERTIORARI IS NOT
AVAILABLE:
a. Petition for a writ of amparo;
b. Petition for a writ of habeas data;
c. Small claims cases;
d. Cases governed by the Rules on Summary
Procedure.
JUDICIAL COURTESY IS NOT THE PREVAILING RULE:
- General Rule: Mere pendency of a special civil
action for certiorari, commenced in relation to a case
pending before a lower court or court of origin, does
not stay the proceedings therein in the absence of a
writ of preliminary injunction or temporary restraining
order. (Sec. 7, Rule 65)
- Exception: Judicial Courtesy, It is true that there are
instances where, even if there is no writ of
preliminary injunction or temporary restraining order
issued by a higher court, it would be proper for a
lower court or court of origin to suspend its
proceedings on the precept of judicial courtesy. (De
Leon vs. Public Estates Authority, 626 SCRA 547)
- Note that the precept of judicial courtesy should not
be applied indiscriminately and haphazardly if we are
to maintain the relevance of Sec. 7, Rule 65. (De
Leon vs. Public Estate Authority, Supra)
CERTIORARI IS NOT A SUBSTITUTE FOR A LOST
APPEAL:
- The filing of a petition for certiorari as a substitute for
a lost appeal is erroneous. Certiorari is not and
cannot be made a substitute for an appeal where the
latter remedy is available but was lost through fault
or negligence. “The remedy to obtain reversal or
modification of the judgment on the merits is appeal.
This holds true even if the error ascribed to the court
rendering the judgment is its lack of jurisdiction over
the subject matter, or the exercise of power in
excess thereof, or grave abuse of discretion in the
findings of fact or of law set out in the decision. The
CIVIL PROCEDURE 141
 CIVIL PROCEDURE
Morillo Notes
existence and availability of the right of appeal c. Acting with grave abuse of discretion amounting to
prohibits the resort to certiorari because one of the lack of jurisdiction or in excess of jurisdiction even if
requirements for the latter remedy is that there the tribunal, board or officer initially had jurisdiction.
should be no appeal”. (Bugarin vs. Palisoc, 476 (Sec.1, Rule 65)
SCRA 587)
ACTING WITHOUT JURISDICTION; IN EXCESS OF
WHEN CERTIORARI IS AVAILABLE DESPITE THE LOSS JURISDICTION; GRAVE ABUSE OF DISCRETION:
OF APPEAL:
WITHOUT EXCESS OF GRAVE ABUSE OF
- General Rule: Certiorari is not available when the DISCRETION:
JURISDICTION JURISDICTION
period of appeal has lapsed.
- Exceptions:
The tribunal, board, When the tribunal, Connotes
a. When appeal is ost without the appellee’s or officer acted with board, or officer capricious and
negligence; absolute lack of exceeds its power whimsical exercise
b. when public welfare and the advancement authority or acts without any of judgment
of public policy dictates; statutory authority. equivalent to lack or
c. When the broader interest of justice so excess of
requires; jurisdiction.
d. When the writs issued are null and void; and Source: Milwaukee Industries vs. CTA, 636 SCRA 70)
e. When the questioned order amounts to an
oppressive exercise of judicial authority.
EXCESS OF JURISDICTION DISTINGUISHED FROM
(Chua vs. CA, 344 SCRA 136; Crisostomo
ABSENCE OF JURISDICTION:
vs Endencia, 66 Phil. 1)
EXCESS OF ABSENCE OF
ESSENTIAL REQUISITES FOR A PETITION FOR JURISDICTION JURISDICTION
CERTIORARI:
1. The petition is directed against a tribunal, board or An act, though within the Lack or want of legal power,
officer exercising judicial or quasi-judicial functions; general power of tribunal, right, or authority to hear and
2. Such tribunal, board or officer has acted without or in board, or officers, is not determine a cause/s,
authorized and invalid with considered either in general or
excess of jurisdiction or with grave abuse of
respect to the particular with reference to a particular
discretion amounting to lack or excess of jurisdiction; proceeding because the matter.
3. There is neither appeal nor any plain, speedy and conditions, which alone
adequate remedy in the ordinary course of law for authorize the exercise of the
the purpose of annulling or modifying the general power in respect
proceeding. There must be capricious, arbitrary and thereof, are wanting.
whimsical exercise of power for it to prosper. (Sec. 1,
Source: Chamber of Real Estate and Builders vs. Secretary of
Rule 65; Aggabao vs. COMELEC, 449 SCRA 400;
Agrarian Reform, 621 SCRA 295)
Milwaukee Industries Corp. vs. CTA, 636 SCRA 70)
NECESSITY FOR A MOTION FOR RECONSIDERATION:
RESPONDENT MUST EXERCISE JUDICIAL OR QUASI-
- The filing of a motion for reconsideration is a
JUDICIAL FUNCTIONS:
condition sine qua non to the filing of a petition for
- Rule 65 clearly requires that a petition for certiorari is
certiorari to allow the court an opportunity to correct
directed against a “tribunal, board or officer
its imputed errors. (Romy’s Freight Service vs.
exercising judicial or quasi-judicial functions”. (Sec.
Castro, 490 SCRA 160; Reyes vs. CA, 321 SCRA
1, Rule 65)
368)
- A respondent is said to be exercising judicial function
- Mere fact that a petitioner fails to move for the
where he has the power to determine what the law is
reconsideration of the court a quo’s order denying
and what the legal rights of the parties are, and then
his motion is a sufficient cause for the outright
undertakes to determine these questions and
dismissal of a petition for certiorari. (Bokingo vs. CA,
adjudicate upon the rights of the parties. Quasi-
489 SCRA 521)
judicial function is a term which applies to the action,
discretion, etc., of public administrative officers of
EXCEPTIONS TO THE REQUIREMENT OF A MOTION FOR
bodies, which are required to investigate facts ir
RECONSIDERATION:
ascertain the existence of facts, hold hearings, and
1. When the order is a patent nullity, as where the court
draw conclusions from them as a basis for their
a quo has no jurisdiction;
official action and to exercise discretion of a judicial
2. When the questions raised in the certiorari
nature. Ministerial function is one which an officer or
proceeding have been duly raised and passed upon
tribunal performs in the context of a given set of
by the lower court, or are the same as those raised
facts, in a prescribed manner and without regard to
and passed upon in the lower court;
the exercise of his own judgment upon the propriety
3. When there is an urgent necessity for the resolution
or impropriety of the act done. (Metrobank vs.
of the question and any further delay would prejudice
NWPC, 514 SCRA 346)
the interests of the government or of the petitioner;
4. When the subject matter of the action is perishable;
KINDS OF JURISDICTIONAL ERRORS:
5. When, under the circumstances, a motion for
a. Acting without jurisdiction;
reconsideration would be useless;
b. Acting in excess of jurisdiction even if initially the
6. When petitioner was deprived of due process and
tribunal, board or officer had jurisdiction; or
there is an extreme urgency for relief;

142 CIVIL PROCEDURE

 CIVIL PROCEDURE
Morillo Notes
7. In a criminal case, when relief from order of arrest is
urgent and the granting of such relief by the trial
court is improbable;
8. When the proceedings in the lower court are a nullity
for lack of due process;
9. When the proceedings were done ex parte or in
which the petitioner had no opportunity to object;
10. Where the issue raised is one purely of law; or
11. Where public interest is involved. (Tan vs.
Sandiganbayan, 292 SCRA 452; Hamilton vs. Levy,
344 scra 821; Ermita vs. Aldecoa-Delorino, 651
SCRA 128)
ABSENCE OF APPEAL OR ANY PLAIN, SPEEDY AND
ADEQUATE REMEDY:
- A special action for certiorari under Rule 65 ;ies only
when “there is no appeal nor any plain, speedy and
adequate remedy in the ordinary course of law,” and
certiorari cannot be allowed when a party to a case
fails to appeal a judgment despite the availability of
that remedy, certiorari not being a substitute for a
lost appeal. (People vs. CA, 626 SCRA 352)
WHEN CERTIORARI IS ALLOWED DESPITE AVAILABILITY
OF APPEAL:
- Even if the extraordinary remedy of certiorari is not
proper when an appeal is available, it may be
allowed when it can be shown that appeal would be
inadequate, slow, inefficient, and will not promptly
relieve a party from the injurious effects of the order
complained of (HUalam vs. Construction and
Development vs. CA, 214 SCRA 612)
FILING OF THE PETITION FOR CERTIORARI:
- The person aggrieved may file a verified petition in
the proper court. The verified petition is required ro
(1) allege the facts with certainty; (2) pray that
judgment be rendered annulling or modifying the
proceedings of the tribunal, board or officer; and (3)
grant such incidental reliefs as law and justice may
require (Sec. 1, Rule 65)
- Specifically, the petition shall contain the full names
and addresses of all the petitioners and respondents,
a concise statement of the matters involved, the
factual background of the case, and the grounds
relied upon for the relief prayed for. (Sec. 3, Rule 46)
OTHER REQUIREMENTS FOR FILING THE PETITION:
- The petition shall be accompanied by (a) a certified
true copy of the judgment, order or resolution
subject of the petition, (b) copies of all pertinent
pleadings and documents. and (c) a sworn
certification of non-forum shopping (Sec. 1, Rule 65)
MATERIAL DATE RULE: The following material dates must
be stated in the petition:
a. When notice of judgment, final order or resolution
subject of the petition was received;
b. When a motion for new trial or reconsideration was
filed (if any); and
c. When notice of the denial of the motion for new trial
or reconsideration was received (Sec. 3, Rule 46)
PURPOSE OF THE MATERIAL DATE RULE:
- To determine the timeliness of the petition, since the
perfection of an appeal (in the manner and within the
period prescribed by law) is jurisdictional and failure
to perfect an appeal, as required by law, rendered
the judgment final and executory. (Great Southern
Maritime vs. Acuna, 452 SCRA 422)
WHERE AND WHEN TO FILE THE PETITION FOR
CERTIORARI:
- The petition shall be filed not later than sixty (60)
days from notice of the judgment, order or
resolution. In case a motion for reconsideration or
new trial is timely filed, whether such motion is
required or not, the petition shall be filed not later
than sixty (60) days counted from the notice of the
denial of the motion.
- If the petition relates to an act or an omission of a
municipal trial court or of a corporation, a board, an
officer or a person, it shall be filed with the Regional
Trial Court exercising jurisdiction over the territorial
area as defined by the Supreme Court. It may also
be filed with the Court of Appeals or with the
Sandiganbayan, whether or not the same is in aid of
the court’s appellate jurisdiction. If the petition
involves an act or an omission of a quasi-judicial
agency, unless otherwise provided by law or these
rules, the petition shall be filed with and be
cognizable only by the Court of Appeals.
- In election cases involving an act or an omission of a
municipal or a regional trial court, the petition shall
be filed exclusively with the Commission on
Elections, in aid of its appellate jurisdiction. (Sec. 4,
AM no. 07-7-12-SC, December 27, 2007)
MEANING OF “IN AID OF ITS APPELLATE
JURISDICTION”:
- A court may issue a writ of certiorari in aid of its
appellate jurisdiction if said court has jurisdiction to
review, by appeal or writ of error, the final orders or
decisions of the lower court. Accordingly, since it is
the COMELEC which has jurisdiction to take
cognizance of an appeal from the decisions of the
RTC in election contests involving elective municipal
officials, then it is also the COMELEC which has
jurisdiction to issue a writ of certiorari in aid of its
appellate jurisdiction. (Galang vs. Geronimo, GR no.
192793, February 22, 2011)
PARTIES TO THE PETITION:
- It shall be filed by the “person aggrieved” (Sec. 1,
Rule 65). The person aggrieved under Sec. 1, Rule 65
is not to be construed to mean that any person who
feels injured by the lower court’s order or decision
can question the said court’s disposition by
certiorari. It pertains to the person who was a party in
the proceedings before the lower court. (Tong vs.
CA, 325 SCRA 394)
- Where the petition relates to the acts or omission of
a judge, officer or person, the petitioner shall join as
a private respondent, the person/s interested in
sustaining the proceedings in the court (Sec. 5, Rule
65).
DUTY OF PRIVATE RESPONDENT:
- the private respondent should appear and defend
not only in his own behalf but also in behalf of the
public respondent affected by the proceedings. If
costs shall be against the private respondent only
and not against the public respondent. (Sec. 5, Rule
65)
CIVIL PROCEDURE 143
 CIVIL PROCEDURE
Morillo Notes
PUBLIC RESPONDENT; APPEARANCE NOT REQUIRED;
EXCEPTION:
- The public respondent is not mandated to appear in,
or file an answer or comment to the petition therein
as a nominal party. However, unless otherwise
specifically directed by the court, he shall not appear
or participate in the proceedings therein. (Sec. 5,
Rule 65)
EXPEDITING PROCEEDINGS; INJUNCTIVE RELIEF:
- The court in which the petition is filed may issue
orders expediting the proceedings, and it may also
grant a temporary restraining order or a writ of
preliminary injunction for the preservation of the
rights of the parties pending such proceedings. The
petition shall not interrupt the course of the principal
case, unless a temporary restraining order or a writ
of preliminary injunction has been issued, enjoining
the public respondent from further proceeding with
the case.
- The public respondent shall proceed with the
principal case within ten (10) days from the filing of a
petition for certiorari with a higher court or tribunal,
absent a temporary restraining order or a preliminary
injunction, or upon its expiration. Failure of the public
respondent to proceed with the principal case may
be a ground for an administrative charge. (Sec. 7,
AM No.. 07-7-12-SC)
ORDER TO COMMENT:
- If the petition is sufficient in form and substance to
justify such process, the court shall issue an order
requiring the respondent or respondents to comment
on the petition within ten (10) days from receipt of a
copy thereof. Such order shall be served on the
respondents in such manner as the court may direct
together with a copy of the petition and any annexes
thereto.
- In petitions for certiorari before the Supreme Court
and the Court of Appeals, the provisions of section 2,
Rule 56, shall be observed. Before giving due course
thereto, the court may require the respondents to file
their comment to, and not a motion to dismiss, the
petition. Thereafter, the court may require the filing of
a reply and such other responsive or other pleadings
as it may deem necessary and proper. (Sec. 6, Rule
65)
PROCEEDINGS AFTER COMMENT:
- After the comment or other pleadings required by the
court are filed, or the time for the filing thereof has
expired, the court may hear the case or require the
parties to submit memoranda.
- If, after such hearing or filing of memoranda or upon
the expiration of the period for filing, the court finds
that the allegations of the petition are true, it shall
render judgment for such relief to which the
petitioner is entitled. (Sec. 8, Rule 65)
GROUNDS FOR DISMISSAL OF THE PETITION FOR
CERTIORARI:
a. The petition is found to be patently without merit;
b. The petition is prosecuted manifestly for delay; or
144 CIVIL PROCEDURE
c. The questions raised in the petition are too
unsubstantial to require consideration. (Sec. 8, Rule
65)
EFFECTS OF FILING UNMERITORIOUS PETITIONS:
- In the event of dismissal of unmeritorious petitions,
the court may award in favor of the respondent treble
costs solidarily against the petitioner and counsel, in
addition to subjecting the counsel to administrative
sanctions under Rules 139 and 1390B of the ROC.
(Sec. 8, AM No. 07-7-12-SC).
- In addition, the SC may impose motu proprio, based
in res ipsa loquitur, other disciplinary sanctions or
measures on erring lawyers for patently dilatory and
unmeritorious petitions for certiorari (Sec. 8, AM No.
07-7-12-SC)
SERVICE OF COPY OF JUDGMENT TO PUBLIC
RESPONDENT:
- A certified copy of the judgment rendered in the
certiorari proceedings shall be served upon the
public respondent concerned. (Sec. 9, Rule 65)
CONTEMPT FOR DISOBEDIENCE:
- Disobedience to the judgment or order shall be
punished as contempt. (Sec. 9, Rule 65)
RELIEF:
- The primary relief will actually be the annulment or
modification of the judgment, order, resolution or
proceeding subject of the petition. It may also
include such other incidental reliefs as law and
justice may require. (Sec. 1, Rule 65)
- The court, in its judgment, may also award damages.
The execution of the award for damages or costs
shall follow the procedure in Sec. 1, Rule 39, ROC.
(Sec. 9, Rule 65)
REVIEW OF JUDGMENT IN A CERTIORARI PETITION:
- The decision of a court in a petition for certiorari in
Rule 65 is reviewable by appeal because certiorari is
an original action.
PROHIBITION
Section 2. Petition for prohibition. — When the proceedings of any
tribunal, corporation, board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions, are without or in
excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal
or any other plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered commanding the respondent to
desist from further proceedings in the action or matter specified
therein, or otherwise granting such incidental reliefs as law and
justice may require.
The petition shall likewise be accompanied by a certified true copy
of the judgment, order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent thereto, and a
sworn certification of non-forum shopping as provided in the third
paragraph of section 3, Rule 46.
 CIVIL PROCEDURE
Morillo Notes
NATURE OF PROHIBITION:
- Prohibition is an extraordinary writ of commanding a
tribunal, corporation, board, officer or person,
whether exercising functions that are judicial, quasi-
judicial or ministerial, to desist from further
proceedings when such are conducted without or in
excess of its jurisdiction, or with grave abuse of its
discretion, there being no appeal or any other plain,
speedy, and adequate remedy in the ordinary course
of law. (Sec. 2, Rule 65)
PROHIBITION AS AN ORIGINAL ACTION:
- A special civil action of prohibition is an original and
independent action and not merely a continuation or
a part of the trial resulting in the rendition of the
judgment or order complained of. Neither is such an
action ancillary or substitute to the action for which
the supervisory authority of the appellate court is
sought and directed. It bears stressing that an action
for prohibition or certiorari, for that matter, does not
divest the inferior court of its jurisdiction validly
acquired over the case pending before it; it is merely
an invocation for the exercise of its supervisory
power over the lower court to insure that the lower
court acts within its jurisdiction. (Mayon Estate Corp.
vs. Marietta altura, 440 SCRA 377)
- Because prohibition is an original action, the mere
filing thereof will not immediately enjoin the
performance of an act sought to be prevented while
the petition is ending. The petitioner has to obtain a
writ of preliminary injunction or a temporary
restraining order pending final resolution of the
petition for prohibition.
REQUISITES FOR A WRIT OF PROHIBITION:
1. The impugned act must be that of a tribunal,
corporation, board or person exercising judicial,
quasi-judicial, or ministerial functions;
2. The tribunal, corporation, board or person must have
acted without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack of
jurisdiction;
3. There is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law; and
4. The petition for prohibition shall be accompanied by
a certified true copy of the judgment or order subject
of the petition, copies of all the pleadings and
documents relevant and pertinent thereto, and a
sworn certification of non-forum shopping as
provided in Sec. 3, Rule 46. (Sec. 2, Rule 65;
Ongsuco vs. Malones, 604 SCRA 499; Longino vs.
General, 451 SCRA 423)
INSTANCES WHERE PROHIBITION IS NOT APPLICABLE:
- When any person or group of persons is acting in a
purely private capacity. Prohibition will not lie against
private individuals or corporations (Destileria
Limtuaco & Company vs. Advertising Board of the
Philippines, 572 SCRA 455)
- The remedy of prohibition is not available against a
mere resolution expressing the desire of a
Sangguniang Panglungsod to expropriate property.
At this stage it would be premature for the
petitioners to mount any judicial challenge against
the resolution because the power of eminent domain
could be exercised by the City only through the filing
of a verified complaint in the proper court. Before the
City as the expropriating authority files such verified
complaints, no expropriation proceeding could be
said to exist. Until then, the petitioners as the owners
could not be deemed as having been deprived of
their property under the power of eminent domain.
(Sps. Yusay vs. CA, 647 SCRA 269)
PROHIBITION DISTINGUISHED FROM INJUNCTION:
PROHIBITION INJUNCTION
A special civil action directed This is a main action, this is
against a tribunal, corporation,
an ordinary civil action.
board, officer or person which
exercises judicial, quasi-judicial,
or ministerial functions
commanding the same to desist
from further proceedings.
PROHIBITION DISTINGUISHED FROM CERTIORARI:
PROHIBITION CERTIORARI
Directed not only against a Seeks to annul acts of a
respondent exercising judicial respondent performing judicial
or quasi-judicial act but even or quasi-judicial functions.
against one exercising
ministerial functions
Directed to the tribunal itself Directed to the action of the
commanding it to desist from court which is sought to be
further proceeding with the annulled.
case
Purpose is to command the Purpose is to annul or modify
respondent to desist from the judgment, order, resolution
further proceedings. or proceedings of the public
respondent.
Source: Secs. 1& 2, Rule 65
DECLARATORY RELIEF TREATED AS PROHIBITION:
- There are precedents for treating a petition for
declaratory as one for prohibition of the case has far-
reaching implications and raises questions that need
to be resolved for the public good. The SC also held
that a petition for prohibition is a proper remedy to
prohibit or nullify acts of executive officials that
amount to usurpation of legislative authority. (Diaz
vs. Secretary of Finance, 654 SCRA 96)
MANDAMUS
Section 3. Petition for mandamus. — When any tribunal,
corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which
such other is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be
rendered commanding the respondent, immediately or at some
other time to be specified by the court, to do the act required to be
done to protect the rights of the petitioner, and to pay the damages
sustained by the petitioner by reason of the wrongful acts of the
respondent.
CIVIL PROCEDURE 145
 CIVIL PROCEDURE
Morillo Notes
The petition shall also contain a sworn certification of non-forum
shopping as provided in the third paragraph of section 3, Rule 46.
(Sec. 3, Rule 65)
NATURE AND PURPOSE OF MANDAMUS:
- It is an extraordinary writ commanding a tribunal,
corporation, board, officer or person to do an act
required to be done:
a. When it or he unlawfully neglects the
performance of an act which the law
specifically enjoins as a duty, and there is
no other plain, speedy, and adequate
remedy in the ordinary course of law. The
duty referred herein is one which results
from an office, trust, or station.
b. It is also available when one unlawfully
excludes another from the use and
enjoyment of a right or office to which such
other is entitled and there is no other plain,
speedy and adequate remedy in the
ordinary course of law. (Sec. 3, Rule 65;
Militante vs. CA, 330 SCRA 318)
- A writ of mandamus is a command issuing from a
court of law of competent jurisdiction, in the name of
the state or sovereign, directed to an inferior court,
tribunal, or board, or to some corporation or person,
requiring the performance of a particular duty therein
specified, which duty results from the official station
of the party to whom the writ is directed, or from
operation of law. It is employed to compel the
performance, when refused, of a ministerial duty
which, as opposed to a discretionary one, is that
which an officer or tribunal performs in a given state
of facts, in a prescribed manner, in obedience to the
mandate of legal authority, without regard to or the
exercise of his or its own judgment upon the
propriety or impropriety of the act done. (National
Home Mortgage vs. Abayari, 602 SCRA 242)
- The principal function of mandamus is to command,
not to inquire, expedite or to adjudicate. (BPI Family
Savings Bank vs. Manikan, 395 scra 373)
PRAYER IN A PETITION FOR MANDAMUS:
1. The judgment be rendered commanding the
respondent to do the act required to be done to
protect the rights of the petitioner; and
2. That the respondent pay the damages sustained by
the petitioner by reason of the wrongful acts of the
respondent. (Sec. 3, Rule 65)
REQUISITES FOR MANDAMUS TO BE AVAILABLE:
1. The plaintiff has a clear legal right right to the act
demanded;
2. It must be the duty of the defendant to perform the
act, because it is mandated by law;
3. The defendant unlawfully neglects the performance
of the duty enjoined by law;
4. The act to be performed is ministerial, not
discretionary; and
5. There is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law. (De
Castro vs. JBC, 615 SCRA 666)
EXISTENCE OF A CLEAR LEGAL RIGHT:
- The writ of mandamus can be awarded only when
the petitioners’ legal right to the performance of the
146 CIVIL PROCEDURE
particular act, which is sought to be compelled, is
clear and complete. Under Rule 65, a clear legal right
which is indubitably granted by law or inferable as a
matter of law. If the right is clear and the case is
meritorious, objections raising merely technical
questions will be disregarded. But where the right
sought to be enforced is in substantial doubt or
dispute, mandamus cannot issue (Angeles vs.
Secretary of Justice, 614 SCRA 478)
MINISTERIAL VS. DISCRETIONARY ACT:
- The distinction between a ministerial and
discretionary act is well delineated. A purely
ministerial act or duty is one which an officer or
tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of a
legal authority, without regard to or the exercise of
his own judgment upon the propriety or impropriety
of the act done. If the law imposes a duty upon a
public officer and gives him the right to decide how
or when the duty shall be performed, such duty is
discretionary and not ministerial. The duty is
ministerial only when the discharge of the same
requires neither the exercise of official discretion or
judgment. (Espiridion vs, CA, GR no. 146933, June 8,
2006)
MINISTERIAL ACT OR DUTY:
- Mandamus is a writ that commands the performance
of a purely ministerial duty imposed by law. (Black’s
Law Dictionary, p. 866) A duty is ministerial when it
demands no special judgment, discretion or skill. It is
one in which nothing is left to discretion and is
simple and definite duty imposed by law. (Black’s
Law Dictionary, p. 899)
WHEN MANDAMUS IS NOT APPLICABLE:
1. Against a government school or an official with a
duty that involves the exercise of discretion like on
matters of admission of students. (UP vs. Ayson, 176
SCRA 571);
2. To compel an academic institution (like UP) to allow
the graduation of a student who has failed to comply
with the academic rules of the school. (Magtibay vs.
Garcia, 120 SCRA 370);
3. Any claim for re-correction or revision of examination
by the PRC cannot be compelled by mandamus. The
function of re-viewing and re-assessing answers to
the examination questions is a discretionary function
of the Medical Board, and not a ministerial and
mandatory one. (Antolin vs. Domondon, 623 SCRA
163);
4. Where administrative remedies are available,
mandamus does not apply. (Systems Plus Computer
College vs. LGU Caloocan City, 408 SCRA 494);
5. Mandamus will not lie to compel a prosecutor to file
an information because it is a remedy to compel the
performance of a ministerial duty imposed by law
upon a respondent. (Hegerty vs. CA, 409 SCRA 285);
WHEN MANDAMUS IS AVAILABLE TO COMPLY THE
PROSECUTOR:
1. When the prosecutor refuses to include in the
information certain persons, whose participation in
the commission of a crime clearly appears; and
 CIVIL PROCEDURE
Morillo Notes
2. To follow the proper procedure for the discharge of
these persons in order that they may be utilized as
prosecution witnesses. (Cuarto vs. Ombudsman, 658
SCRA 580)
WHEN MANDAMUS MAY LIE TO COMPEL
DISCRETIONARY RULE:
- When the act sought to be performed involves the
exercise of discretion, the respondent may only be
directed by mandamus to act but to act in one way
or the other. Nonetheless, it is also available to
compel action, when refused, in matters involving
judgment and discretion, but not to direct the
exercise of judgment in a particular manner.
However, this rule admits of exceptions. Mandamus
is the proper remedy in cases where there is gross
abuse of discretion, manifest injustice, or palpable
excess of authority. (Dejuras vs. Villa, 635 SCRA 569)
CONTRACTUAL DUTIES NOT COMPELLABLE BY
MANDAMUS:
- Mandamus cannot be availed of as a remedy to
enforce the performance of contractual obligations.
No rule of law is better settled than that mandamus
does not lie to enforce the performance of
contractual obligations. It was not intended to aid a
plaintiff in the enforcement of a mere contract right,
or to take the place of the other remedies provided
by law for the adjudication of disputed claims. To
permit the writ of mandamus to be used for the
purpose of enforcing a mere contract right would be
a wide departure from the settled practice in respect
to the character of cases in which relief by
mandamus may be obtained. (Manalo vs. PAIC
Savings Bank, 453 SCRA 747)
REQUISITES FOR MANDAMUS:
1. The plaintiff has a clear legal right to the act
demanded. It will never be issued in doubtful cases.
[NOTE: Mandamus does not establish a legal right,
but merely enforces one that is already clearly
established];
2. It must bbe the duty of the defendant to perform the
act because the same is mandated by law;
3. The defendant unlawfully neglects the performance
of the duty enjoined by law;
4. the act to be performed is ministerial, not
discretionary; and
5. There is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law. (Sec.
3, Rule 65)
NATURE OF THE JUDGMENT IN MANDAMUS:
- A favorable judgment rendered in a special civil
action for mandamus is in the nature of a special
judgment. As such, it requires the performance of
any other act than the payment of money or the sale
or delivery of real or personal property the execution
of which is governed by Section 11, Rule 39 of the
Rules of Court which states: “When the judgment
requires the performance of any act other than those
mentioned in the two preceding sections, a certified
copy of the judgment shall be attached to the writ of
execution and shall be served by the officer upon the
party against whom the same is rendered, or upon
any other person required thereby, or by law, to obey
the same, and such party or person may be
punished for contempt if he disobeys such
judgment.” (National Home Mortgage Finance vs.
Abayari, 602 SCRA 242)
- The respondent who receives an adverse judgment
shall be ordered to perform the act required to be
done to protect the rights of the petitioner and to pay
the damages sustained by the petitioner by reason of
the wrongful acts of the respondent. (Sec., Rule 65)
DECLARATORY RELIEF TREATED AS MANDAMUS:
- The court may treat a petition for declaratory relief as
one for mandamus if the issue involved has far-
reaching implications. (Gamboa vs. Teves, 652 SCRA
690)
SERVICE AND ENFORCEMENT OF ORDER OR
JUDGMENT:
- A certified copy of the judgment rendered in
accordance with the last preceding section shall be
served upon the court, quasi-judicial agency,
tribunal, corporation, board, officer or person
concerned in such manner as the court may direct,
and disobedience thereto shall be punished as
contempt. An execution may issue for any damages
or costs awarded in accordance with section 1 of
Rule 39. (Sec. 9, Rule 65)
RULE 66
QUO WARRANTO
NATURE OF A QUO WARRANTO:
- A Quo warranto proceeding is generally defined as
an action against a person who usurps, intrudes into,
or unlawfully holds or exercises a public office.
(Tecson vs. COMELEC, 424 SCRA 277)
- it is specifically described as an action for the
usurpation of a public (a) office, (b) position, or (c)
franchise that is commenced by a verified petition in
the name of the Republic of the Philippines. (Sec. 1,
Rule 66)
- the special civil action of Quo warranto is a
prerogative writ by which the Government can call
upon any person to show by what warrant he holds a
public office or exercises a public franchise. Quo
warranto is specifically available as a remedy if it is
thought that a government corporation has offended
against its corporate charter or misused its franchise
(Divinagracia vs. Consolidated Broadcasting, 584
SCRA 213)
QUO WARRANTO DISTINGUISHED FROM MANDAMUS:
QUO WARRANTO MANDAMUS
A proceeding is brought against It is a suit brought against the
the holder of the office, who is person who is responsible for
the person claiming the office unlawfully excluding the
as against the petitioner, not the petitioner from office. The
one who excludes the respondent here does not have
petitioner. to usurp, intrude into or hold the
office.
Source: Cornejo vs. Gabriel, 41 Phil. 188
CIVIL PROCEDURE 147
 CIVIL PROCEDURE
Morillo Notes
Section 1: Action by Government
against individuals
A PETITION GENERALLY BROUGHT IN THE NAME OF
THE REPUBLIC OF THE PHILIPPINES; VERIFIED
PETITION:
- A quo warranto is a special civil action commenced
in the name of the Republic of the Philippines by a
verified petition. (Sec. 1, Rule 66)
- However, in certain instances, the petition may be
brought by an individual in his own name if he claims
to be entitled to a public office usurped or unlawfully
held or exercised by another. (Sec. 5, Rule 66)
AGAINST WHOM PETITION MAY BE BROUGHT:
- The petition for the usurpation of a public office,
position or franchise may be brought against any of
the following:
a. person;
b. public officer; or
c. association.
- If brought against a person, said person is one who
usurps, intrudes into, or unlawfully holds or exercises
a public office, position or franchise.
- If filed against a public officer, said officer is one who
does or suffers an act which, by the provision of law,
constitutes a ground for the forfeiture of his office.
- If filed against an association, it is one which acts as
a corporation within the Philippines without being
legally incorporated or without lawful authority to do
so. (Sec. 1, Rule 66)
Section 2: When Solicitor General or public prosecutor
must commence action
WHEN SOLICITOR GENERAL OR PUBLIC PROSECUTOR
MUST COMMENCE ACTION:
- The Solicitor General or a public prosecutor, when
directed by the President of the Philippines, or when
upon complaint or otherwise he has good reason to
believe that any case specified in the preceding
section can be established by proof, must
commence such action. (Sec. 2, Rule 66)
Section 3: When Solicitor General or public prosecutor
may commence action with permission of court
WHEN SOLICITOR GENERAL OR PUBLIC PROSECUTOR
MAY COMMENCE ACTION WITH PERMISSION OF
COURT:
- The Solicitor General or a public prosecutor may,
with the permission of the court in which the action is
to be commenced, bring such an action at the
request and upon the relation of another person; but
in such case the officer bringing it may first require
an indemnity for the expenses and costs of the
action in an amount approved by and to be
deposited in the court by the person at whose
request and upon whose relation the same is
brought. (Sec. 3, Rule 66)
Section 4: When hearing had on application for
148 CIVIL PROCEDURE
permission to commence action.
WHEN HEARING HAD ON APPLICATION FOR
PERMISSION TO COMMENCE ACTION:
- Upon application for permission to commence such
action in accordance with the next preceding
section, the court shall direct that notice be given to
the respondent so that he may be heard in
opposition thereto; and if permission is granted, the
court shall issue an order to that effect, copies of
which shall be served on all interested parties, and
the petition shall then be filed within the period
ordered by the court. (Sec. 4, Rule 66)
Section 5: When an individual may commence such an
action
WHEN AN INDIVIDUAL MAY COMMENCE THE ACTION:
- A person claiming to be entitled to a public office or
position usurped or unlawfully held or exercised by
another may bring an action therefor in his own
name. (Sec. 5, Rule 66)
- However, not any person may file the petition for
Quo warranto. The person authorized to file the same
is the one who claims to be entitled to a public office
or position which was usurped or unlawfully held or
exercised by another person. (Sec. 5, Rule 66)
- The private person, as petitioner, may maintain the
action without the intervention of the Solicitor’s
General. (Navaro vs. Gimenez, 10 Phil. 226).
- In bringing a petition for quo warranto, he must show
that he has a clear right to the office allegedly being
held by another. (Cuevas vs. Bacal, 347 SCRA 338)
Section 6: Parties and contents of
petition against usurpation
PARTIES AND CONTENTS OF PETITION AGAINST
USURPATION:
- When the action is against a person for usurping a
public office, position or franchise, the petition shall
set forth the name of the person who claim to be
entitled thereto, if any, with an averment of his right
to the same and that the respondent is unlawfully in
possession thereof.
- All persons who claim to be entitled to the public
office, position or franchise may be made parties,
and their respective rights to such public office,
position or franchise determined, in the same action.
(Sec. 6, Rule 66)
Section 7: Venue
VENUE:
- An action under the preceding six sections can be
brought only in the Supreme Court, the Court of
Appeals, or in the Regional Trial Court exercising
jurisdiction over the territorial area where the
respondent or any of the respondents resides, but
when the Solicitor General commences the action, it
may be brought in a Regional Trial Court in the City
 CIVIL PROCEDURE
Morillo Notes
of Manila, in the Court of Appeals, or in the Supreme
Court. (Sec. 7, Rule 66)
QUO WARRANTO IN SANDIGANBAYAN:
- The Sandiganbayan shall have exclusive original
jurisdiction over petitions for the issuance of the writs
of mandamus, prohibition, certiorari, habeas corpus,
injunctions, and other ancillary writs and processes
in aid of its appellate jurisdiction and over petitions of
similar nature, including quo warranto, arising or that
may arise in cases filed or which may be filed under
Executive Order Nos. 1,2,14 and 14-A, issued in
1986: Provided, That the jurisdiction over these
petitions shall not be exclusive of the Supreme
Court. (Sec. 4, PD 1606, as amended by RA 8249)
QUO WARRANTO UNDER THE OMNIBUS ELECTION
CODE:
- Any voter contesting the election of any Member of
the Batasang Pambansa, regional, provincial, or city
officer on the ground of ineligibility or of disloyalty to
the Republic of the Philippines shall file a sworn
petition for quo warranto with the Commission within
ten days after the proclamation of the results of the
election.
Any voter contesting the election of any municipal or
barangay officer on the ground of ineligibility or of
disloyalty to the Republic of the Philippines shall file
a sworn petition for quo warranto with the regional
trial court or metropolitan or municipal trial court,
respectively, within ten days after the proclamation
of the results of the election. (Sec. 253 - Petition for
Quo Warranto, Omnibus Election Code)
Section 8: Period for pleadings and proceedings may be
reduced; action given precedence
PERIOD FOR PLEADINGS AND PROCEEDINGS:
- The court may reduce the period provided by these
Rules for filing pleadings and for all other
proceedings in the action in order to secure the most
expeditious determination of the matters involved
therein consistent with the rights of the parties.
- Such action may be given precedence over any other
civil matter pending in the court. (Sec. 8, Rule 66)
Section 9: Judgment where usurpation
JUDGMENT WHERE USURPATION:
- When the respondent is found guilty of usurping into,
intruding into, or unlawfully holding or exercising a
public office, position or franchise, judgment shall be
rendered that such respondent be ousted and
altogether excluded therefrom, and that the
petitioner or relator, as the case may be, recover his
costs.
- Such further judgment may be rendered determining
the respective rights in and to the public office,
position or franchise of all the parties to the action as
justice requires. (Sec. 9, Rule 66)
Section 10: Rights of persons adjudged
entitled to public office;
delivery of books and papers; damages
RIGHTS OF PERSONS ADJUDGED ENTITLED TO PUBLIC
OFFICE:
- If judgment be rendered in favor of the person
averred in the complaint to be entitled to the public
office he may, after taking the oath of office and
executing any official bond required by law, take
upon himself the execution of the office, and may
immediately thereafter demand of the respondent all
the books and papers in the respondent's custody or
control appertaining to the office to which the
judgment relates. If the respondent refuses or
neglects to deliver any book or paper pursuant to
such demand, he may be punished for contempt as
having disobeyed a lawful order of the court.
- The person adjudged entitled to the office may also
bring action against the respondent to recover the
damages sustained by such person by reason of the
usurpation. (Sec. 10, Rule 66)
Section 11: Limitations
LIMITATIONS:
- Nothing contained in this Rule shall be construed to
authorize an action against a public officer or
employee for his ouster from office unless the same
be commenced within one (1) year after the cause of
such ouster, or the right of the petitioner to hold such
office or position, arose, nor to authorize an action
for damages in accordance with the provisions of the
next preceding section unless the same be
commenced within one (1) year after the entry of the
judgment establishing the petitioner's right to the
office in question. (Sec. 11, Rule 66)
Section 12: Judgment for costs
JUDGMENT FOR COSTS:
- In an action brought in accordance with the
provisions of this Rule, the court may render
judgment for costs against either the petitioner, the
relator, or the respondent, or the person or persons
claiming to be a corporation, or may apportion the
costs, as justice requires. (Sec. 12, Rule 66)
RULE 67
EXPROPRIATION
CONSTITUTIONAL DEMARCATION:
- The power of eminent domain in particular has been
described as a right to take or reassert dominion
over property within the state for public use or meet
a public exigency. It is also said to be an essential
part of governance even in its most primitive form
and, therefore, inseparable from sovereignty, (Air
Transport Office vs. Gopuco, Jr., 462 SCRA 544)
- The taking of private property must be done only for
public use and upon payment of just compensation
CIVIL PROCEDURE 149
 CIVIL PROCEDURE
Morillo Notes
as well as due process and equal protection clauses.
(Sec. 9 and Sec. 1, Art. III, 1987 Constitution)
ESSENCE OF EXPROPRIATION (CONCEPT OF PUBLIC
USE):
- Expropriation is forced private property taking, the
landowner being really without a ghost of a chance
to defeat the case of the expropriating agency,
withal, the mandatory requirement of due process
shout be strictly followed, such that the state must
show a genuine need, an exacting public purpose to
take property, the purpose to be specifically alleged
or least reasonably deducible from the complaint.
(Riano (2012), Civil Procedure, Vol. 2, p. 355)
- Public use has now an expansive meaning to include
any use that is of :usefulness, utility, or advantage, or
what is productive of general benefit of the public.”
(Vda. de Ouano vs. Republic, 642 SCRA 384)
DEFINITION OF JUST COMPENSATION:
- Just compensation is defined as the full and fair
equivalent of the property sought to be expropriated.
The measure is not the taker’s gain but the owner’s
loss. The compensation, to be just, must be fair not
only to the owner but also to the taker. Even as
undervaluation would deprive the owner of its
property without due process, so too would its
overvaluation unduly favor him to the prejudice of the
public. (National Power Corporation vs. Dela Cruz,
514 SCRA 56; Republic vs. Rural Bank of Kabacan,
664 SCRA 233)
- Apart from the requirement that compensation for
expropriation must be fair and reasonable,
compensation, to be “just”, must also be paid
without delay if the property is immediately taken as
the property owner suffers the immediate deprivation
of both his land and its fruits or income. (Apo Fruits
Corp. vs. Landbank, 632 scra 727
EXERCISE OF EMINENT DOMAIN BY LOCAL
GOVERNMENT UNITS (REQUISITES):
a. An ordinance is enacted by a local legislative council
to exercise the power of eminent domain, or pursue
expropriation proceedings over a particular private
property through its chief executive;
b. The power of eminent domain is exercised for public
use, purpose or welfare, or for the benefit of the poor
and the landless;
c. There is payment of just compensation, as required
under the Constitution, and other pertinent aws; and
d. A valid and definite offer has been previously made
to the owner of the property sought to be
expropriated, but said offer was not accepted. (Sec.
19, RA 7160)
EXERCISE OF EMINENT DOMAIN THROUGH AN
ORDINANCE:
- A resolution will not suffice for a local government
unit to be able to expropriate private property; and
the reason for this is settled because a municipal
ordinance is different from a resolution. An ordinance
is a law, but a resolution is merely a declaration of
the sentiment or opinion of a lawmaking body on a
specific matter. An ordinance possesses a general
and permanent character, but a resolution is
temporary in nature. Additionally, the two enacted
150 CIVIL PROCEDURE
differently - a third reading is necessary for an
ordinance, but not a resolution, unless decided
otherwise by a majority of all the Sanggunian
members” (Beluso vs. Municipality of Panay Capiz,
498 SCRA 113)
HOW THE LOCAL UNIT MAY IMMEDIATELY TAKE
POSSESSION OF THE PROPERTY:
a. Expropriation proceedings are filed; and
b. The local government makes a deposit with the
proper court of at least 15% of the fair market value
of the property based on the current tax declaration
of the property to be expropriated. (sec. 19, RA,
7160)
Note: The amount to be paid for the property shall be
based on the fair market value at the time of the
taking of the property.
EXPROPRIATION NOT LIMITED TO ACQUISITION OF
TITLE:
- Expropriation is not limited to the acquisition of real
property with a corresponding transfer of title or
possession. The right-of-way easement resulting in a
restriction or limitation on property rights over the
land traversed by transmission lines also falls within
the ambit of term “expropriation”. (National Power
Corporation vs. Santa Loro Vda. de capin, 569 SCRA
648)
STAGES IN THE EXPROPRIATION PROCESS:
1. The determination of the authority of the plaintiff to
expropriate:
- Concerned with the determination of the authority of
the plaintiff to exercise the power of eminent domain
and the propriety of its exercise in the context of
facts involved in the suit.
- It ends with with an order, of not of dismissal of the
action, “of condemnation declaring that the plaintiff
has a lawful right to take the property sought to be
condemned, for the public use or purpose described
in the complaint, upon the payment of just
compensation to be determined as of the date of the
filing of the complaint”
- An order of dismissal, if this be ordained, would be a
final one, since it finally disposes of the action and
leaves nothing more to be done by the Court on the
merits. So, too, would an order of condemnation be
a final one, for thereafter, as the ROC expressly
states, in the proceedings before the trial court, “No
objection to the exercise of the right of
condemnation (or the propriety thereof) shall be filed
or heard. (Municipality of Binan vs. Garcia, 180 SCRA
576)
2. The determination of just compensation through the
court-appointed commissioners:
- Concerned with the determination by the Court of
“just compensation for the property sought to be
taken.”
- This is done by the Court with the assistance of not
more than 3 commissioners. The order fixing the just
compensation on the basis of the evidence before,
and findings of, the commissioners would be final,
too.
- It would finally dispose of the second stage of the
suit, and leave nothing more to be done by the Court
 CIVIL PROCEDURE
Morillo Notes
regarding the issue. (Municipality of Binan vs.
Garcia, 180 SCRA 576)
MATTERS TO BE ALLEGED IN A COMPLAINT FOR
EXPROPRIATION:
- An expropriation proceeding is commenced by the
filing of a verified complaint which shall:
a. state with certainty the right of the plaintiff
to expropriation and the purpose thereof;
b. describe the real or personal property
sought to be expropriated; and
c. join as defendant all persons owning or
claiming to own, or occupying, any part of
the property or interest therein, showing, so
far as practicable, the interest of each
defendant. If the plaintiff cannot identify the
real owners with accuracy, averment to that
effect shall be made in the complaint. (Sec.
1, Rule 67)
WHO MAY BE DEFENDANTS?
- The defendant shall be served with summons (Sec.
2, Rule 67)
- The defendants in an expropriation case are not
limited to the owners of the property condemned
because the can also all other persons owning,
occupying or claiming to own the property. When
property is taken by eminent domain, the owner is
not necessarily the only person who is entitled to
compensation. (Republic vs. Mangotara, 624 SCRA
360)
COURT WITH JURISDICTION:
- An action for expropriation is filed with the RTC
because it is an action incapable of pecuniary
estimation regardless of the value of the subject
property.barangay San Roque vs. Heirs of pastor,
334 SCRA 127)
DEFENSES AND OBJECTIONS IN THE ANSWER:
- The defendant shall serve an answer if he has an
objection to the filing of the complaint, allegations in
the complaint, or objection or defense to the taking
of his property. This answer shall be served within
the time stated in the summons. (Sec. 3, Rule 67)
- The answer is required to specifically designate or
identify the property in which the defendant claims to
have an interest, and state the nature and extent of
the interest claimed. He must also allege all his
objections and defenses to the taking of his property
because those not adduced are deemed waived.
(Sec. 3, rule 67)
REMEDY WHEN SOME DEFENSES ARE OMITTED:
- If the answer omits some defenses, the remedy (in
order to prevent a waiver of those defenses not
alleged) is to seek leave to amend the answer within
10 days from the filing thereof. (Sec. 3, Rule 67)
- In expropriation proceedings, the permission of the
court is always required before the answer is
amended for the purpose of incorporating defenses
and objections not so alleged. (Sec. 3, Rule 67)
COUNTERCLAIMS, CROSS-CLAIMS OR THIRD-PARTY
COMPLAINTS:
- The defendant cannot file an answer with a
counterclaim, answer with a cross-claim, or third-
party complaint. (Rule 67)
EFFECT OF WAIVER OF DEFENSES OR FAILURE TO
ANSWER:
- In expropriation proceedings , whether or not a
defendant has previously appeared or answered, he
may present evidence as to the amount of the
compensation to be paid for his property, and share
in the distribution of the award. (Sec. 3, Rule 67)
WHEN AN ANSWER IS NOT REQUIRED:
- An answer is not required if the defendant has no
objection or defense to the action or to the taking of
his property. Instead, he may file and serve a (1)
notice of appearance, and (2) manifestation to the
fact that he has no objection or defense to the taking
of his property, within the time stated in the
summons. (Sec. 3, Rule 67)
- In the manifestation, he shall specifically designate or
identify the property in which he claims to have an
interest Thereafter, he shall be entitled to notices of
all proceedings affecting the property even if he has
no objections of defenses. (Sec. 3, Rule 67)
ENTRY UPON THE PROPERTY OR POSSESSION
THEREOF; DEPOSIT AND NOTICE:
- Upon the filing of the complaint or at any time
thereafter and after due notice to the defendant, the
plaintiff shall have the right to take or enter upon the
possession of the real property involved if he
deposits with the authorized government depositary
an amount equivalent to the assessed value of the
property for purposes of taxation to be held by such
bank subject to the orders of the court. (Sec. 2, Rule
57)
- Such deposit shall be in money, unless in lieu thereof
the court authorizes the deposit of a certificate of
deposit of a government bank of the Republic of the
Philippines payable on demand to the authorized
government depositary. (Sec. 2, Rule 57)
- If personal property is involved, its value shall be
provisionally ascertained and the amount to be
deposited shall be promptly fixed by the court. (Sec.
2, Rule 57)
EFFECT OF MAKING THE REQUIRED DEPOSIT:
- After such deposit is made the court shall order the
sheriff or other proper officer to forthwith place the
plaintiff in possession of the property involved and
promptly submit a report thereof to the court with
service of copies to the parties. (Sec. 2, Rule 67)
PURPOSE OF DEPOSIT:
- The deposit requirement serves as an advanced
payment to the owner of the property should the
court decide in favor of the plaintiff, and should it be
otherwise, the deposit shall serve as indemnity
against any damage which the owner may have
sustained (Visayan Refining Company vs. Camus and
Paredes, 40 Phil. 550)
REPUBLIC ACT NO. 8974 VERSUS RULE 67:
RA 8974 or “AN ACT TO FACILITATE THE ACQUISITION OF
RIGHT-OF-WAY, SITE OR LOCATION FOR NATIONAL
CIVIL PROCEDURE 151
 CIVIL PROCEDURE
Morillo Notes
GOVERNMENT INFRASTRUCTURE PROJECTS AND FOR
OTHER PURPOSES”
Section 4. Guidelines for Expropriation Proceedings. - Whenever it
is necessary to acquire real property for the right-of-way or
location for any national government infrastructure project through
expropriation, the appropriate implementing agency shall initiate
the expropriation proceedings before the proper court under the
following guidelines:
(a) Upon the filing of the complaint, and after due notice to the
defendant, the implementing agency shall immediately pay the
owner of the property the amount equivalent to the sum of (1) one
hundred percent (100%) of the value of the property based on the
current relevant zonal valuation of the Bureau of Internal Revenue
(BIR); and (2) the value of the improvements and/or structures as
determined under Section 7 hereof;
- Rule 67 merely requires the Government to deposit
with an authorized government depository the
assessed value of the property for expropriation for it
to be entitled to a writ of possession.
- RA 8974 requires that the Government make a direct
payment to the property owner before the writ may
issue. Moreover, such payment is based on zonal
valuation of the BIR in the case of land, the value of
the improvements or structures under the
replacement cost method, or if no such valuation is
available and in cases of utmost urgency, the
proferred value of the property to be seized.
- RA 8974, which provides for a procedure eminently
more favorable to the property owner than Rule 67,
inescapably applies in instances when the national
government expropriates property “for national
government infrastructure projects:. Therefore, if
expropriation is engaged in by the national
government for purposes other than national
infrastructure projects, the assessed value standard
and the deposit mode prescribed in Rule 67
continues to apply. (Republic vs. Gingoyon, 478
SCRA 474; MCWD vs. J.King and Sons, 585 SCRA
484)
ORDER OF EXPROPRIATION:
- An order of expropriation/condemnation will be
issued declaring that the plaintiff has a lawful right to
take the property for the use or purpose described in
the complaint upon the payment of just
compensation. (Sec. 4, Rule 67)
- This order shall issue in any of the following cases:
a. In the event the objections of the defendant
are overruled; or
b. When no party appears to object to or
defend against the expropriation. (Sec. 4,
Rule 67)
NO DISMISSAL BY PLAINTIFF UPON RENDITION OF THE
ORDER OF EXPROPRIATION:
- After the rendition of the order of expropriation, the
plaintiff shall not be permitted to dismiss or
discontinue the proceeding except upon such terms
as the court deems just and equitable. (Sec. 4, Rule
67)
APPEAL FROM THE ORDER OF EXPROPRIATION:
- The order of expropriation is appealable. The final
order sustaining the right to expropriate the property
152 CIVIL PROCEDURE
may be appealed from by any party aggrieved by
such order. (Sec. 4, Rule 67)
MATTERS NOT AFFECTED BY THE APPEAL:
- When the order of expropriation is appealed from,
such appeal shall not prevent the court from
determining the just compensation to be paid. (Sec.
4, Rule 67)
- The right of the plaintiff to enter upon the property of
the defendant and appropriate the same for public
use or purpose shall not be delayed by an appeal
from the judgment. (Sec. 11, Rule 67)
RULE OF THE TRIAL COURT’S DECISION IS REVERSED
ON APPEAL:
- if on appeal, the appellate court determines that the
plaintiff has no right of expropriation, judgment shall
be rendered ordering the RTC to enforce the
restoration of the possession of the property to the
defendant and to determine the damages which the
defendant sustained and may recover by reason of
the possession taken by the plaintiff. (Sec. 11, Rule
67)
ASCERTAINMENT OF COMPENSATION:
- Upon the rendition of the order of expropriation, the
court shall appoint not more than three (3) competent
and disinterested persons as commissioners to
ascertain and report to the court the just
compensation for the property sought to be taken.
- The order of appointment shall designate the time
and place of the first session of the hearing to be
held by the commissioners and specify the time
within which their report shall be submitted to the
court.
- Copies of the order shall be served on the parties.
- Objections to the appointment of any of the
commissioners shall be filed with the court within ten
(10) days from service, and shall be resolved within
thirty (30) days after all the commissioners shall have
received copies of the objections. (Sec. 5, Rule 67)
PROCEEDINGS BY COMMISSIONERS:
- Before entering upon the performance of their duties,
the commissioners shall take and subscribe an oath
that they will faithfully perform their duties as
commissioners, which oath shall be filed in court with
the other proceedings in the case. Evidence may be
introduced by either party before the commissioners
who are authorized to administer oaths on hearings
before them, and the commissioners shall, unless the
parties consent to the contrary, after due notice to
the parties, to attend, view and examine the property
sought to be expropriated and its surroundings, and
may measure the same, after which either party may,
by himself or counsel, argue the case.
- The commissioners shall assess the consequential
damages to the property not taken and deduct from
such consequential damages the consequential
benefits to be derived by the owner from the public
use or purpose of the property taken, the operation
of its franchise by the corporation or the carrying on
of the business of the corporation or person taking
the property. But in no case shall the consequential
benefits assessed exceed the consequential
damages assessed, or the owner be deprived of the
 CIVIL PROCEDURE
Morillo Notes
actual value of his property so taken. (Sec. 6, Rule
67)
REPORT BY COMMISSIONERS AND JUDGMENT
THEREUPON:
- The court may order the commissioners to report
when any particular portion of the real estate shall
have been passed upon by them, and may render
judgment upon such partial report, and direct the
commissioners to proceed with their work as to
subsequent portions of the property sought to be
expropriated, and may from time to time so deal with
such property.
- The commissioners shall make a full and accurate
report to the court of all their proceedings, and such
proceedings shall not be effectual until the court shall
have accepted their report and rendered judgment in
accordance with their recommendations. Except as
otherwise expressly ordered by the court, such
report shall be filed within sixty (60) days from the
date the commissioners were notified of their
appointment, which time may be extended in the
discretion of the court.
- Upon the filing of such report, the clerk of the court
shall serve copies thereof on all interested parties,
with notice that they are allowed ten (10) days within
which to file objections to the findings of the report, if
they so desire. (Sec. 7, Rule 67)
ACTION UPON COMMISSIONERS’ REPORT:
- Upon the expiration of the period of ten (10) days
referred to in the preceding section, or even before
the expiration of such period but after all the
interested parties have filed their objections to the
report or their statement of agreement therewith, the
court may, after hearing, accept the report and
render judgment in accordance therewith, or, for
cause shown, it may recommit the same to the
commissioners for further report of facts, or it may
set aside the report and appoint new commissioners;
or it may accept the report in part and reject it in part
and it may make such order or render such judgment
as shall secure to the plaintiff the property essential
to the exercise of his right of expropriation, and to
the defendant just compensation for the property so
taken. (Sec. 8, Rule 67)
- The determination of compensation in expropriation
cases is a function addressed to the discretion of the
courts and may not be usurped by any other branch
or official of the government. (National Power Corp
vs. Tuazon, 653 SCRA 84)
UNCERTAIN OWNERSHIP:
- If the ownership of the property taken is uncertain, or
there are conflicting claims to any part thereof, the
court may order any sum or sums awarded as
compensation for the property to be paid to the court
for the benefit of the person adjudged in the same
proceeding to be entitled thereto.
- But the judgment shall require the payment of the
sum or sums awarded to either the defendant or the
court before the plaintiff can enter upon the property,
or retain it for the public use or purpose if entry has
already been made. (Sec. 9, Rule 67)
COSTS, BY WHOM PAID:
- The fees of the commissioners shall be taxed as a
part of the costs of the proceedings. All costs,
except those of rival claimants litigating their claims,
shall be paid by the plaintiff, unless an appeal is
taken by the owner of the property and the judgment
is affirmed, in which event the costs of the appeal
shall be paid by the owner. (Sec. 12, Rule 67)
RIGHTS OF PLAINTIFF AFTER JUDGMENT AND
PAYMENT:
- Upon payment by the plaintiff to the defendant of the
compensation fixed by the judgment, with legal
interest thereon from the taking of the possession of
the property, or after tender to him of the amount so
fixed and payment of the costs, the plaintiff shall
have the right to enter upon the property
expropriated and to appropriate it for the public use
or purpose defined in the judgment, or to retain it
should he have taken immediate possession thereof
under the provisions of section 2 hereof.
- If the defendant and his counsel absent themselves
from the court, or decline to receive the amount
tendered, the same shall be ordered to be deposited
in court and such deposit shall have the same effect
as actual payment thereof to the defendant or the
person ultimately adjudged entitled thereto. (Sec. 10,
Rule 67)
RECORDING JUDGMENT, AND ITS EFFECT:
- The judgment entered in expropriation proceedings
shall state definitely, by an adequate description, the
particular property or interest therein expropriated,
and the nature of the public use or purpose for which
it is expropriated.
- When real estate is expropriated, a certified copy of
such judgment shall be recorded in the registry of
deeds of the place in which the property is situated,
and its effect shall be to vest in the plaintiff the title to
the real estate so described for such public use or
purpose. (Sec. 13, Rule 67)
POWER OF GUARDIAN IN SUCH PROCEEDINGS:
- The guardian or guardian ad litem of a minor or of a
person judicially declared to be incompetent may,
with the approval of the court first had, do and
perform on behalf of his ward any act, matter, or
thing respecting the expropriation for public use or
purpose of property belonging to such minor or
person judicially declared to be incompetent, which
such minor or person judicially declared to be
incompetent could do in such proceedings if he were
of age or competent. (Sec. 14, Rule 67)
RULE 68
FORECLOSURE OF REAL ESTATE MORTGAGE
REAL ESTATE MORTGAGE:
- A real estate mortgage (REM) is an accessory
contract executed by a debtor in favor of a creditor
as security for the principal obligation. The principal
obligation is usually a simple loan or mutuum
described in Art. 1953, Civil Code.
CIVIL PROCEDURE 153
 CIVIL PROCEDURE
Morillo Notes
- To be a REM, the contract must be constituted on
either immovables (real property) or alienable real
rights. If constituted on movables, the contract is a
chattel mortgage. (Art. 2124, NCC)
- A REM creates a real right which follows the property
whoever the owner may be after the constitution of
the mortgage. Hence, the new owner, who knows of
the mortgage (or if registered) is bound by the
mortgage even if he is not a party to the contract of
mortgage. “The mortgage directly and immediately
subjects the property upon which it is imposed,
whoever the possessor may be, to the fulfillment of
the obligation for whose security it was constituted.”
(Art. 2126, NCC)
ACCOMMODATION MORTGAGORS:
- This refers to the mortgagor who is not the debtor in
the principal obligation.
- Third persons who are not parties to the principal
obligation may secure the latter by pledging or
mortgaging their own property” (Art. 2085, NCC)
- Accommodation mortgagors are not in any way
liable for the payment of the loan or principal
obligation of the debtor/borrower. The liability of the
accommodation mortgagors extends only up to the
loan value of the mortgaged property and not to the
entire loan itself. (Belo vs. PNB, 353 SCRA 359)
DRAGNET CLAUSE OR BLANKET MORTGAGE CLAUSE:
- This is a provision in the mortgage contract wherein
the mortgage is used as a security for past, present
and future indebtedness. This is valid and legal
according to the SC.
- While a REM may exceptionally secure future loans
or advancements, these future debts must be
sufficiently described in the mortgaged contract.
(Traders Royal Bank vs. Castanares, 636 SCRA 519)
WHEN FORECLOSURE IS PROPER:
- Foreclosure is valid only when the petition is in
default in the payment off his obligation, such default
occurs when the payment is not made after a valid
demand unless the contract between the parties
carries with it a stipulation that demand is not
necessary for default to arise. (DBP vs. Licuanan,
516 SCRA 644)
ALTERNATIVE REMEDIES OF THE CREDITOR IN CASE OF
DEFAULT OF THE DEBTOR:
a. File an action for collection of a sum of money; or
b. Foreclose the mortgage, if one had been constituted.
(Flores vs. Lindo, Jr., 648 SCRA 772)
PACTUM COMMISSORIUM CONCEPT:
- It is a stipulation empowering the creditor to
appropriate the thing given as guaranty for the
fulfillment of the obligation in the event the
obligor/debtor fails to live up to his undertakings,
without further formality, such as foreclosure
proceedings, and a public sale. (Edralin vs. Phil.
Veterans Bank, 645 SCRA 75)
- Art. 2088 of the Civil Code expressly prohibits
Pactum Commissorium because this appropriation
by the creditor has been interpreted to refer to an
automatic appropriation granted by the contract to
him in case of non-payment of the debtor to the
154 CIVIL PROCEDURE
obligation within the stipulated period. (Bustamante
vs. Rosel, 319 SCRA 413)
ELEMENTS OF PACTUM COMMISSORIUM:
1. There should be a property mortgaged by way of
security for the payment of the principal obligation;
and
2. There should be a stipulation for automatic
appropriation by the creditor of the thing mortgaged
in case of non-payment of the principal obligation
within the stipulated period.” (Edralin vs. Phil.
Veterans Bank, 645 SCRA 75)
Section 1: Complaint in action for foreclosure
COURT WITH JURISDICTION TO HEAR ACTIONS FOR
FORECLOSURE:
- It is the RTC that has jurisdiction to hear and decide
actions for foreclosure of a REM. (BP 129, Russel vs.
Vestil, 304 SCRA 738)
- For purposes of venue, an action for foreclosure of
mortgage of real property is an action affecting
interest in real property and, therefore, is a real
action. The venue of real actions is the place where
the real property involved, or a portion thereof is
situated. (Sec. 1, Rule 4)
EFFECT OF DEATH OF THE MORTGAGOR/DEBTOR:
- The death of the mortgagor does not extinguish his
debt. Such death does not also preclude the
foreclosure of any REM he may have executed prior
to this death. (Rano, (2012), Civil Procedure Vol. 2, p.
394)
REMEDIES OF THE MORTGAGEE/CREDITOR WHEN THE
MORTGAGOR/DEBTOR DIES:
a. Creditor may abandon the security and prosecute his
claim in the manner provided for under Rule 86, and
share in the general distribution of the assets of the
estate;
b. He may foreclose the mortgage by action in court,
making the executor or administrator a party
defendant, and if there be a deficiency judgment
after the sale of the mortgaged property, he may
claim the deficiency in the manner provided under
Rule 86; or
c. He may rely upon the mortgage or other security
alone, and foreclose the same at any time before it is
barred by prescription, and in that event, he shall not
be admitted as a creditor, without the right to share
in the distribution of the other assets of the state
(Sec. 7, Rule 86)
SPLITTING OF A SINGLE CAUSE OF ACTION:
- A creditor cannot file a civil action against the debtor
for collection of the debt and subsequently file an
action to foreclose the mortgage. This is an example
of splitting of a single cause of action which is
prohibited under the ROC. (Danao vs. CA, 154 SCRA
446)
MODES OF FORECLOSURE OF REAL ESTATE
MORTGAGE:
a. Judicial Foreclosure; and
b. Extrajudicial Foreclosure
 CIVIL PROCEDURE
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Section 2: Judgment on foreclosure

SUMMARY DISTINCTION: JUDICIAL FORECLOSURE AND
for payment or sale
EXTRAJUDICIAL FORECLOSURE OF REAL ESTATE
MORTGAGE:
JUDGMENT ON FORECLOSURE:
JUDICIAL FORECLOSURE EXTRAJUDICIAL
- If upon the trial in such action the court shall find the
FORECLOSURE
facts set forth in the complaint to be true, it shall
render a judgment containing the following matters:
Governed by the Rules of Court Governed by Act 3135, as
amended a. Ascertainment of the amount due to the
plaintiff upon the mortgage debt or
Involves the filing of an Does not require the filing of an obligation, including interest and other
independent action action charges as approved by the court, and
costs;
Equity of redemption and no There is right of redemption b. Render judgment for the sum so found due;
right of redemption except c. Order that the same be paid to the court or
when the mortgagee is a to the judgment obligee within a period of
banking institution not less than ninety (90) days nor more than
one hundred twenty (120) days from the
There could be a deficiency No judgment for its deficiency
entry of judgment; and
judgment rendered by the court because there is no judicial
in the same proceeding proceeding, although recovery
d. Admonition that in default of such payment
of the deficiency is allowed. the property shall be sold at public auction
to satisfy the judgment. (Sec. 2, Rule 68)
Recovery of the deficiency can The recovery pf the deficiency - The judgment of the court on the above matters is
be done by mere motion for a is through an independent considered final adjudication of the case and,
deficiency judgment action, and although nothing therefore, subject to challenge by the aggrieved party
about the recovery of the by appeal or other post-judgment remedies.
deficiency is provided under Act
3135, there is no prohibition
EQUITY OF REDEMPTION:
either.
- The period mentioned in the judgment of the court
Source: Riano (2012), Civil Procedure Vol. 2, p. 412 (Sec. 2, Rule 68) is the period within which the
mortgagor may start exercising his “equity of
ALLEGATIONS IN A COMPLAINT FOR FORECLOSURE: redemption,”which is the right to extinguish the
a. The date and due execution of the mortgage; mortgage and retain ownership of the property by
b. The assignments of the mortgage if any; paying the debt. The payment may be made even
c. The names and residences of the mortgagor and after the foreclosure sale provided it is made before
mortgagee; the sale is confirmed by the court. (GSIS vs. CFI, 175
d. A description of the mortgaged property; SCRA 19)
e. A statement of the date of the note and other
documentary evidence of the obligation secured by RIGHT OF REDEMPTION:
the mortgage; - General Rule: In judicial foreclosures, there is no
f. The amount claimed to be unpaid thereon and right of redemption but only an equity of redemption
g. The names and residences of all persons having or which can be exercised prior to the confirmation of
claiming an interest in the property subordinate in the foreclosure sale.
right to that of the holder of the mortgage, all of - Exception: There is a right of redemption in a judicial
whom shall be made defendants in the action. (Sec. foreclosure if the foreclosure is in favor of banks as
1, Rule 68) mortgagees, whether the foreclosure be judicial or
- Note that these include persons who may extrajudicial. (Huerta Alba vs. CA, 339 SCRA 534)
now own the property mortgaged. Under rt. - This right of redemption is explicitly provided under
2130 of the Civil Code, the mortgagor may Sec.1 , Rule 47 of the General Banking Laws of
sell the property despite a mortgage 2000. Therefore, if the mortgagee is a bank, the
constituted over it because a “stipulation mortgagor may exercise a right of redemption even if
forbidding the owner from alienating the the foreclosure is judicially made pursuant to Rule
immovable mortgaged shall be void.” 68, ROC. (Huerta Alba vs. CA, supra)
- Also included as defendants are the junior
encumbrancers; the persons who may have, PERIOD OF REDEMPTION IN EXTRAJUDICIAL
under the contract, obligated to pay the FORECLOSURES:
mortgaged debt; or those who may have - General Rule: the period of redemption is one year.
control over the property mortgaged. - Exception: Under the General Banking Act, when the
mortgagor is a juridical person. The period of
PROCEDURE: redemption is “until, but not after” the registration of
- A foreclosure suit will proceed like an ordinary civil the certificate of sale with the Register of Deeds,
insofar as they are not inconsistent with Rule 68. “which in no case shall be more than 3 months after
- The is because of the absence of a special provision foreclosure, whichever is earlier.” (Sec. 47, General
in Rule 68 on the mechanics of the suit. Banking Acts of 2000)

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Morillo Notes
Section 3: Sale of mortgaged property; effect
EFFECT OF SALE OF MORTGAGED PROPERTY:
- When the defendant, after being directed to do so as
provided in the next preceding section, fails to pay
the amount of the judgment within the period
specified therein, the court, upon motion, shall order
the property to be sold in the manner and under the
provisions of Rule 39 and other regulations governing
sales of real estate under execution. Such sale shall
not affect the rights of persons holding prior
encumbrances upon the property or a part thereof,
and when confirmed by an order of the court, also
upon motion, it shall operate to divest the rights in
the property of all the parties to the action and to
vest their rights in the purchaser, subject to such
rights of redemption as may be allowed by law.
- Upon the finality of the order of confirmation or upon
the expiration of the period of redemption when
allowed by law, the purchaser at the auction sale or
last redemptioner, if any, shall be entitled to the
possession of the property unless a third party is
actually holding the same adversely to the judgment
obligor. The said purchaser or last redemptioner may
secure a writ of possession, upon motion, from the
court which ordered the foreclosure. (Sec. 3, Rule 68(
Section 4: Disposition of proceeds of sale
DISPOSITION OF THE PROCEEDS OF THE
FORECLOSURE SALE:
- The amount realized from the foreclosure sale of the
mortgaged property shall, after deducting the costs
of the sale, be paid to the person foreclosing the
mortgage, and when there shall be any balance or
residue, after paying off the mortgage debt due, the
same shall be paid to junior encumbrancers in the
order of their priority, to be ascertained by the court,
or if there be no such encumbrancers or there be a
balance or residue after payment to them, then to the
mortgagor or his duly authorized agent, or to the
person entitled to it. (Sec. 4, Rule 68)
Section 5: How sale to proceed in case
the debt is not all due
HOW SALE TO PROCEED IN CASE THE DEBT IS NOT ALL
DUE:
- If the debt for which the mortgage or encumbrance
was held is not all due as provided in the judgment
as soon as a sufficient portion of the property has
been sold to pay the total amount and the costs due,
the sale shall terminate; and afterwards as often as
more becomes due for principal or interest and other
valid charges, the court may, on motion, order more
to be sold. But if the property cannot be sold in
portions without prejudice to the parties, the whole
shall be ordered to be sold in the first instance, and
the entire debt and costs shall be paid, if the
proceeds of the sale be sufficient therefore, there
being a rebate of interest where such rebate is
proper. (Sec. 5, Rule 68)
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Section 6: Deficiency judgment
DEFICIENCY JUDGMENT; WHEN THERE IS NO
DEFICIENCY JUDGMENT:
- If upon the sale of any real property as provided in
the next preceding section there be a balance due to
the plaintiff after applying the proceeds of the sale,
the court, upon motion, shall render judgment
against the defendant for any such balance for
which, by the record of the case, he may be
personally liable to the plaintiff, upon which
execution may issue immediately if the balance is all
due at the time of the rendition of the judgment;
otherwise; the plaintiff shall be entitled to execution
at such time as the balance remaining becomes due
under the terms of the original contract, which time
shall be stated in the judgment. (Sec. 6, Rule 68)
RULE IN CASE THERE IS A SURPLUS INSTEAD OF A
DEFICIENCY:
- It is the duty of the mortgagee to return to the
mortgagor any surplus in the selling price during the
foreclosure sale. *Sulit. vs. CA, 268 SCRA 441)
Section 7: Registration
REGISTRATION OF THE SALE:
- A certified copy of the final order of the court
confirming the sale shall be registered in the registry
of deeds. If no right of redemption exists, the
certificate of title in the name of the mortgagor shall
be cancelled, and a new one issued in the name of
the purchaser. (Sec. 7, Rule 68)
- Where a right of redemption exists, the certificate of
title in the name of the mortgagor shall not be
cancelled, but the certificate of sale and the order
confirming the sale shall be registered and a brief
memorandum thereof made by the registrar of deeds
upon the certificate of title. In the event the property
is redeemed, the deed of redemption shall be
registered with the registry of deeds, and a brief
memorandum thereof shall be made by the registrar
of deeds on said certificate of title. (Sec. 7, Rule 68)
- If the property is not redeemed, the final deed of sale
executed by the sheriff in favor of the purchaser at
the foreclosure sale shall be registered with the
registry of deeds; whereupon the certificate of title in
the name of the mortgagor shall be cancelled and a
new one issued in the name of the purchaser. (Sec.
7, Rule 68)
Section 8: Applicability of other provisions
APPLICABILITY OF OTHER PROVISIONS:
- The provisions of sections 31, 32 and 34 of Rule 39
shall be applicable to the judicial foreclosure of real
estate mortgages under this Rule insofar as the
former are not inconsistent with or may serve to
supplement the provisions of the latter. (Sec. 8, Rule
68)
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Morillo Notes
RULE 69
PARTITION
MEANING OF PARTITION:
- Partition is the separation, division, and assignment
of a thing held in common by those to whom it may
belong. (Art. 1079, NCC; Cano Vda. De Viray vs. Sps.
Usi, GR no. 192486, Nov. 21, 2012)
INSTANCES WHEN A CO-OWNER MAY NOT DEMAND
PARTITION:
1. When there is an agreement among the co-owners to
keep the property undivided for a certain period of
time but not extending 10 years. However, this term
may be extended by a new agreement. (Art. 494
NCC);
2. When partition is prohibited by the donor or testator
for a period not exceeding 20 years (Arts. 494 &
1083, NCC)
3. When partition is prohibited by law (Art. 494, NCC);
4. When the property is not subject to a physical
division and to do so would render it unserviceable
for the use for which it is intended (Art. 495, NCC); or
5. When the conditions imposed upon voluntary heirs
before they can demand partition has not yet been
fulfilled. (Art. 1084, NCC)
PARTITION IS NOT A CONVEYANCE:
- Partition among heirs is not legally deemed a
conveyance of real property resulting in change of
ownership. It is not a transfer of property from one to
the other, but rather, it is a confirmation or ratification
of title or right of property that an heir is renouncing
in favor of another heir who accepts and receives the
inheritance. It is merely a designation and
segregation of that part which belongs to each heir.
(Heirs of Ureta, Sr. vs. Heirs of Ureta, 657 SCRA 555)
COURT WITH JURISDICTION TO HEAR AN ACTION FOR
PARTITION:
HEIRS OF VALERIANO CONCHA, SR.
vs. SPS. LUMOCSO
GR no. 158121, December 12, 2007
The original text of Section 19(2) of B.P. 129 as well as its
forerunner, Section 44(b) of R.A. 296, as amended, gave the RTCs
(formerly courts of first instance) exclusive original jurisdiction
"[i]n all civil actions which involve the title to, or possession of,
real property, or any interest therein, except actions for forcible
entry into and unlawful detainer of lands or buildings, original
jurisdiction over which is conferred upon Metropolitan Trial Courts,
[MTCs], and Municipal Circuit Trial Courts (conferred upon the city
and municipal courts under R.A. 296, as amended)." Thus, under
the old law, there was no substantial effect on jurisdiction whether
a case is one, the subject matter of which was incapable of
pecuniary estimation, under Section 19(1) of B.P. 129 or one
involving title to property under Section 19(2). The distinction
between the two classes became crucial with the amendment
introduced by R.A. No. 7691 in 1994 which expanded the exclusive
original jurisdiction of the first level courts to include "all civil
actions which involve title to, or possession of, real property, or
any interest therein where the assessed value of the property or
interest therein does not exceed Twenty thousand pesos
(P20,000.00) or, in civil actions in Metro Manila, where such
assessed value does not exceed Fifty thousand pesos
(P50,000.00) exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses and costs." Thus, under the
present law, original jurisdiction over cases the subject matter of
which involves "title to, possession of, real property or any interest
therein" under Section 19(2) of B.P. 129 is divided between the first
and second level courts, with the assessed value of the real
property involved as the benchmark. This amendment was
introduced to "unclog the overloaded dockets of the RTCs which
would result in the speedier administration of justice.
MODES OF PARTITION:
a. By agreement of the parties; or
b. By judicial proceedings under the ROC when the
parties cannot reach an agreement. (Art. 496, NCC;
Figuracion-Gerilla vs. Vda. de Figuracion, 499 SCRA
484)
STAGES/PHASES OF PARTITION:
FIRST PHASE This is taken up with the determination
of whether or not a co-ownership in fact
exists, and a partition is proper and may
be made by voluntary agreement of all
the parties interested in the property.
This phase may end with a declaration
that the plaintiff is not entitled to have a
partition either because a co-ownership
does not exist, or partition is legally
prohibited.
On the other hand, it may end with an
adjudgment that a co-ownership does in
truth exist, partition is proper in the
premises, and an accounting of rents
and profits received by the defendant
from the real estate in question is in
order.
This is commenced when it appears that
SECOND PHASE
the parties are unable to agree upon the
partition directed by the court. IN THIS
EVENT, Partition shall be done for the
parties by the court with the assistance
of not more than 3 commissioners.
This second stage may well also deal
with the rendition of the accounting itself
and its approval by the court after the
parties have been accorded opportunity
to be heard thereon, and an award for
the recovery by the party or parties
thereto entitled of their just share in the
rents and profits of the real estate in
question
Source: Labayan vs. Samoy, 645 SCRA 677)
SUBJECT TO MULTIPLE APPEALS:
- The action for partition is subject to multiple appeals
and would require a record on appeal. Multiple
appeals are allowed in special proceedings, actions
for recovery of property with accounting, actions for
partition of property with accounting, special civil
actions of eminent domain and foreclosure of
mortgage. The rationale behind allowing more than
one appeal in the same case is to enable the rest if
the case to proceed in the event that a separate and
distinct issue is resolved by the court and held to be
final. (Roman Catholic Archbishop of Manila vs. CA,
258 SCRA 186)
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Section 1: Complaint in action for
partition of real estate
WHO MAY FILE ACTION FOR PARTITION; DEFENDANTS:
- The action shall be brought by the person who has a
right to compel the partition of real estate or of an
estate composed of personal property, or of both
real and personal property. (Secs. 1 & 13, Rule 69)
- The plaintiff is a person who is supposed to be a co-
owner of the property or estate sought to be
partitioned. The defendants are all co-owners.
- All the co-owners must be joined. An action
will not lie without the joinder of all co-
owners and other persons having interest in
the property. Therefore, All the co-owners
are indispensable parties. (Garcia de Lara
vs. Gonzales de Lara, 2 Phil. 294; Reyes vs.
Cordero, 46 Phil. 658)
- A division of property cannot be ordered by the court
unless the existence of a co-ownership is first
established. An action for partition will not lie if the
claimant has no rightful interest over the property.
(Co Giok Lun vs. Co, 655 SCRA 131)
MATTERS TO BE ALLEGED IN THE COMPLAINT:
- the plaintiff shall state in his complaint the nature and
extent of his title, and an adequate description of the
real or personal estate of which partition is
demanded, and shall join as defendants all other
persons interested in the property. (Secs. 1 & 13,
Rule 69)
- These cannot be demanded in another action
because they are parts of the cause of action for
partition. These will be barred if not set up in the
same action pursuant to the rule against splitting a
single cause of action.
- When the allegations in the complaint allege that the
plaintiff asserts exclusive ownership of the property
sought to be partitioned, the nature of the action is
not one for partition. It is an action for the recovery of
property. (Dela Cruz vs. CA,, 412 SCRA 282)
Section 2: Order for partition, and partition by
agreement thereunder
ORDER FOR PARTITION:
- During the trial, the court shall determine whether or
not the plaintiff is truly a co-owner of the property,
that there is indeed a co-ownership among the
parties, and that a partition is not legally prescribed,
thus, may be allowed. If the courts so finds that the
facts are such that a partition would be in order, and
that the plaintiff has a right to demand partition, the
court will issue an order for partition.
- If after the trial, the court finds that the plaintiff has
the right to a partition, the court shall order the
partition of the property among all the parties in
interest. (See Sec. 2, Rule 69)
PARTITION BY AGREEMENT:
- Observe that the order for partition is one that directs
the parties or co-owners to partition the property
where they may make the partition among
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themselves by proper instruments of conveyance, if
they agree among themselves. If they do not agree,
the court shall then confirm the partition so agreed
upon by all the parties, and such partition, together
with the order of the court confirming the same, shall
be recorded in the registry of deeds of the place
where the property is situated. Sec. 2, Rule 69)
- There always exists the possibility that the co-
owners are unable to agree upon the partition. If they
cannot partition the property among themselves, the
next stage in the action will follow, and this stage is
the appointment of commissioners.
Section 3: Commissioners to make partition
when parties fail to agree
PARTITION BY COURT - APPOINTED COMM- ISSIONERS:
APPOINTMENT:
- If the parties are unable to agree upon the partition,
the court shall appoint not more than 3
commissioners, who are competent and
disinterested persons, to make the partition for the
parties. (Sec.3 , Rule 69)
- The appointment of commissioners presupposes
that the parties cannot agree on the partition among
themselves.
- NOTE that nothing in Sec. 3, Rule 69 grants the
commissioners the authority to adjudicate on the
questions of title of ownership of property.
Section 4: Oath and duties of commissioners
OATH AND DUTIES IF COMMISSIONERS:
- Before making such partition; the commissioners
shall take and subscribe an oath that they will
faithfully perform their duties as commissioners,
which oath shall be filed in court with the other
proceedings in the case. In making the partition, the
commissioners shall view and examine the real
estate, after due notice to the parties to attend at
such view and examination, and shall hear the
parties as to their preference in the portion of the
property to be set apart to them and the comparative
value thereof, and shall set apart the same to the
parties in lots or parcels as will be most
advantageous and equitable, having due regard to
the improvements, situation and quality of the
different parts thereof. (Sec. 4, Rule 69)
Section 5: Assignment or sale of
real estate by commissioners
ASSIGNMENT OR SALE OF REAL ESTATE BY
COMMISSIONERS:
- When it is made to appear to the commissioners that
the real state, or a portion thereof, cannot be divided
without prejudice to the interests of the parties, the
court may order it assigned to one of the parties
willing to take the same, provided he pays to the
other parties such amount as the commissioners
deem equitable, unless one of the interested parties
asks that the property be sold instead of being so
assigned, in which case the court shall order the
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Morillo Notes
commissioners to sell the real estate at public sale
under such conditions and within such time as the
court may determine. (Sec. 5, Rule 69)
Section 6: Report of commissioners; proceedings not
binding until confirmed
REPORT OF THE COMMISSIONERS:
- The commissioners shall make a full and accurate
report to the court of all their proceedings as to the
partition, or the assignment of real estate to one of
the parties, or the sale of the same. Upon the filing of
such report, the clerk of court shall serve copies
thereof on all the interested parties with notice that
they are allowed ten (10) days within which to file
objections to the findings of the report, if they so
desire. (Sec. 6, Rule 69)
PROCEEDINGS BEFORE THE COMMISSIONERS; NO
BINDING EFFECT:
- The proceedings had before the commissioners shall
not bind the parties or pass title to the property until
the court shall have accepted the report of the
commissioners and rendered judgment thereon.
(Sec. 6, Rule 69)
Section 7: Action of the court upon commissioners’
report
ACTION OF THE COURT UPON THE REPORT OF THE
COMMISSIONERS:
a. Accept the report and render judgment in
accordance with the same;
b. Recommit the same to the commissioners for further
report of facts, instead of accepting the report;
c. Set aside the report and appoint new
commissioners;
d. Make such order and render such judgment that
shall effectuate a fair and just partition of the estate
(Sec. 7, Rule 69)
Section 8: Accounting for rent and
profits in action for partition
ACCOUNTING FOR RENT AND PROFITS IN ACTION FOR
PARTITION:
- In an action for partition in accordance with this Rule,
a party shall recover from another his just share of
rents and profits received by such other party from
the real estate in question, and the judgment shall
include an allowance for such rents and profits. (Sec.
8, Rule 69)
Section 9: Power of guardian in such proceedings
POWER OF GUARDIAN IN SUCH PROCEEDINGS:
- The guardian or guardian ad litem of a minor or
person judicially declared to be incompetent may,
with the approval of the court first had, do and
perform on behalf of his ward any act, matter, or
thing respecting the partition of real estate, which the
minor or person judicially declared to be incompetent
could do in partition proceedings if he were of age or
competent. (Sec. 9, Rule 69)
Section 10: Costs and expenses to
be taxed and collected
COSTS AND EXPENSES TO BE TAXED AND COLLECTED:
- The court shall equitably tax and apportion between
or among the parties the costs and expenses which
accrue in the action, including the compensation of
the commissioners, having regard to the interests of
the parties, and execution may issue therefor as in
other cases. (Sec. 10, Rule 69)
Section 11: The judgment and its effect; copy to be
recorded in registry of deeds
JUDGMENT OF PARTITION; EFFECTS OF JUDGMENT:
- The judgment shall have the effect of vesting in each
party to the action the portion of the real estate
assigned to him. (Sec. 11, Rule 69)
- If the whole property is assigned to one of the parties
upon his paying to the others the sums ordered by
the court, the effect of the judgment shall be to vest
in the party making the payment the whole of the real
estate free from any interest on the part of the other
parties to the action. (Sec. 11, Rule 69)
- If the property is sold and the sale is confirmed by
the court, the effect of the judgment shall be to vest
the real estate in the purchasers making the
payments, free from the claims of any of the parties
to the action. (Sec. 11, Rule 69)
RECORDING OF THE JUDGMENT:
- A certified copy of the judgment shall be recorded in
the registry of deeds of the place where the real
estate is situated, and the expenses of such
recording shall be taxed as part of the costs of the
action. (Sec. 11, Rule 69)
RULE WHERE THERE ARE EXPENSES TO BE PAID FROM
THE ESTATE:
- In a situation where there remains an issue as to the
expenses chargeable to the estate, partition is
inappropriate. The determination of the expenses like
those related to the deceased’s final illness and
burial, which are chargeable to the estate, cannot be
done in an action for partition. Therefore, the heirs
have to first submit the decedent father’s estate to
settlement because in estate settlement
proceedings, there is a proper procedure for the
accounting of all expenses for which the estate must
answer. If it is any consolation at all to petitioner, the
heirs or distributees of the properties may take
possession thereof even before the settlement of
accounts, as long as they first file a bond
conditioned on the payment of the estate’s
obligations (Figuracion-Gerilla vs. Vda. de Figuracion,
499 SCRA 484)
Section 12: Neither paramount rights nor amicable
partition affected by this Rule
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NEITHER PARAMOUNT RIGHTS NOR AMICABLE
PARTITION AFFECTED BY THIS RULE:
- Nothing in Rule 69 contained shall be construed so
as to prejudice, defeat, or destroy the right or title of
any person claiming the real estate involved by title
under any other person, or by title paramount to the
title of the parties among whom the partition may
have been made, nor so as to restrict or prevent
persons holding real estate jointly or in common from
making an amicable partition thereof by agreement
and suitable instruments of conveyance without
recourse to an action. (Sec. 12, Rule 69)
Section 13: Partition of personal property
PARTITION OF PERSONAL PROPERTY:
- The provisions of Rule 69 shall apply to partitions of
estates composed of personal property, or of both
real and personal property, in so far as the same may
be applicable. (Sec. 13, Rule 69)
RULE 70
FORCIBLE ENTRY AND
UNLAWFUL DETAINER
PRELIMINARY NOTES:
- There are 3 Kinds of actions available to recover
possession of real property, namely:
1. Accion Interdicta - the summary action for
(a) forcible entry (detentacion), where the
defendant’s possession of the property is
illegal ab initio; or (b) for unlawful detainer
(desahuico), where the defendant’s
possession was originally lawful but ceased
to be so by the expiration of his right to
possess, both of which must be brought
within 1 year from the date of actual entry
on the land, in case of forcible entry, and
from the date of the last demand, in case of
unlawful detainer.
2. Accion Publiciana - a plenary action for the
recovery of the right to possess, when the
dispossession has lasted for more than one
year; and
3. Accion Reivindicatoria - seeks the recovery
of ownership and includes the jus
possidendi. (Serdoncillo vs. Benolirao, 297
SCRA 448)
DEFINITION OF AN ACTION FOR FORCIBLE ENTRY:
- An action to recover possession of a property from
the defendant whose occupation there is illegal from
the beginning since he acquired possession by force,
intimidation, threat, strategy or stealth. (Sarmienta
vs. Manalite Homeowners Assoc., 632 SCRA 538)
- In forcible entry, one is deprived of physical
possession of real property by means of force,
intimidation, strategy, threats, or stealth.
DEFINITION OF UNLAWFUL DETAINER:
- An action for recovery of possession from the
defendant whose possession of the property was
160 CIVIL PROCEDURE
inceptively lawful by virtue of a contract (express or
implied) with the plaintiff, but became illegal when he
continued his possession despite the termination of
his right thereunder. (Sarmienta vs. Manalite
Homeowners Assoc., Supra)
- In unlawful detainer, one illegally withholds
possession from the plaintiff after the expiration or
termination of his right to hold possession under any
contract (express or implied)
ALLEGATIONS IN FORCIBLE ENTRY:
a. That the plaintiff had prior physical possession of the
property; and
b. That the defendant deprived him of such possession
by means of force, intimidation, threats, strategy, or
stealth. (Abad vs. Farrales, 647 SCRA 473)
Example:
- Unlawfully entering the subject property, erecting a
structure thereon and excluding the lawful possessor
therefrom would necessarily imply the use of force.
In order to constitute force, the trespasser does not
have to institute a state of war. No other proof is
necessary. (Antazo vs. Doblada, 611 SCRA 586)
ALLEGATIONS IN UNLAWFUL DETAINER:
a. Initially, possession of property by the defendant was
contract with or by tolerance of the plaintiff;
b. Eventually, such possession became the illegal upon
notice by plaintiff to defendant of the termination of
the latter’s right of possession;
c. Thereafter, the defendant remained in possession of
the property and deprived the plaintiff of the
enjoyment thereof; and
d. Within one year from the last demand on the
defendant to vacate the property, the plaintiff
instituted the complaint for ejectment. (Romullo vs.
Samahang Magkakapitbahay, 632 SCRA 411)
WHEN THE COMPLAINT FAILS TO AVER FACTS HOW
ENTRY WAS EFFECTED:
- The jurisdictional facts must appear on the face of
the complaint. When the complaint fails to aver facts
constitutive of forcible entry or unlawful detainer, as
where it does not state how entry was effected or
how and when dispossession started, the remedy
should either be an Accion publiciana or Accion
reinvidicatoria. (Jose vs. Alfuerto, GR no. 169380,
November 26, 2012)
POSSESSION AS THE ISSUE:
- Legally speaking, Possession does not mean that a
man has to have his feet on every square meter of
the ground before he is deemed to be in possession.
(Dela Rosa vs. Carlos, 414 SCRA 226)
- Where the basic issue is not possession but
interpretation, enforcement and/or rescission of the
contract the same is no longer an ejectment suit.
Hence, it is beyond the jurisdiction of the MTC to
hear and determine. (Villena vs. Chavez, 415 SCRA
33)
- Since the issue in ejectment cases is mere
possession, it is worth remembering that the
decision in an ejectment case does not bind the title
to or ownership of the land or building. It does not
also bar an action between the same parties

respecting title to the property. (Balanon-Anciete vs.
Balanon, 402 SCRA 514)
DISTINCTIONS BETWEEN
UNLAWFUL DETAINER:
FORCIBLE ENTRY
The Entry is illegal; The
possession of the defendant is
illegal from the very beginning
having deprived the actual
possessor of his possession
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Morillo Notes
FORCIBLE ENTRY AND
UNLAWFUL DETAINER
The Entry is legal but later
became illegal; The possession
of the defendant is legal in the
beginning but subsequently
becomes illegal because of the
expiration or termination of the
right to have possession, by
virtue of any contract (express
of implied), and after a demand
to vacate was not heeded by
the defendant.
detainer action, the possession of the defendant was
originally legal and his possession was permitted by
the owner through an express or implied contract.
The defendant’s possession becomes illegal only
upon the plaintiff’s demand for the defendant to
vacate the property and the defendant’s subsequent
refusal.. Since the complaint characterizes the
defendant’s occupancy as unlawful even before the
formal demand letters were written by the
petitioner’s counsel, the unlawful withholding of
possession should not be based on the date the
demand letters were sent, as the alleged unlawful act
had taken place at an earlier unspecified date. (Jose
vs. Alfuerto, GR no. 169380, November 26, 2012)
Section 1: Who may institute proceedings,
and when

Plaintiff must allege in the No allegations shall be made,

complaint, and prove, that he instead, there must be WHO MAY INSTITUTE THE ACTION FOR FORCIBLE
was in prior physical allegations in the complaint of ENTRY OR UNLAWFUL DETAINER:
possession of the property until how the possession of the - A person deprived of the possession of any land or
he was deprived by the defendant started or continued building by force, intimidation, threat, strategy, or
defendant by means of force, by virtue of lease or any
stealth, or a lessor, vendor, vendee, or other person
intimidation, threat, strategy or contract, and that he held
stealth. possession of the land after the
against whom the possession of any land or building
expiration or termination of the is unlawfully withheld after the expiration or
contract. termination of the right to hold possession, by virtue
of any contract, express or implied, or the legal
Demand to vacate is not Demand to vacate is necessary representatives or assigns of any such lessor,
required before the filing of the as a rule and within 1 year from vendor, vendee, or other person, may, at any time
action because the occupancy the last demand on the within one (1) year after such unlawful deprivation or
is illegal; from the very defendant to vacate the withholding of possession, bring an action in the
beginning. property, the plaintiff may proper Municipal Trial Court against the person or
institute the complaint for
ejectment.
persons unlawfully withholding or depriving of
possession, or any person or persons claiming under
The one-year period within Counted from the date of the them, for the restitution of such possession, together
which to file the action is last demand to vacate. When with damages and costs. (Sec. 1, Rule 70)
counted generally from the date the demand to vacate is not
of actual entry on the land by heeded, then the unlawful EFFECT OF THE PENDENCY OF AN ACTION INVOLVING
the defendant (ie, from the time withholding of possession OWNERSHIP ON THE ACTION FOR FORCIBLE ENTRY
of possession), Exception to begins. AND UNLAWFUL DETAINER:
this is when the entry is made
- A pending involving ownership of the subject
by stealth, the period must be
counted from the demand to property does not bar the filing of an ejectment suit,
vacate upon learning of the nor suspend the proceedings of one already
entry by stealth. instituted. The underlying reason is to prevent the
defendant from trifling with the summary nature of an
Source: Sec. 1, Rule 70; Tirona vs. Alejo, 367 SCRA 17; Heirs ejectment suit by the simple expedient of asserting
of Demeterio Melchor vs. Melchor, 415 SCRA 726; Sarmienta ownership over the disputed property. (Tecson vs.
vs. Manalite Homeowners Assoc, 632 SCRA 538; Romullo vs. Gutierrez, 452 SCRA 781)
Samahang Magkakapitbahay, 632 SCRA 411; Peralta
Labrador vs. Bugarin, 468 SCRA 308) EXAMPLES OF CASES WHICH DO NOT BAR AN ACTION
FOR FORCIBLE ENTRY OR UNLAWFUL DETAINER:
WHEN DEFENDANT OCCUPIES THE PREMISES BY MERE
TOLERANCE: WILMON AUTO SUPPLY CORP vs. CA
- If the defendant stays in the premises by mere GR no. 97637, April 10, 1992
tolerance of the owner, the possession becomes
unlawful only upon failure to comply with the 1. Injunction suits instituted in the RTC by defendants in ejectment
demand to vacate made by the owner. The unlawful actions in the municipal trial courts or other courts of the first level
(Nacorda v. Yatco, 17 SCRA 920 [1966] do not abate the latter; and
withholding of possession is to be counted from the
neither do proceedings on consignation of rentals (Lim Si v. Lim, 98
date of the demand to vacate and the possessor by Phil. 868 [1956], citing Pue, et al. v. Gonzales, 87 Phil. 81 [1950]).
tolerance refuses to comply with such demand.
(Arcal vs. CA, 285 SCRA 34) 2. An "accion publiciana" does not suspend an ejectment suit
- Where the complaint clearly alleges that the against the plaintiff in the former (Ramirez v. Bleza, 106 SCRA 187
defendants’ occupancy of the premises was unlawful [1981]).
from the start and was bereft of contractual or legal
basis, the plaintiff’s allegations run counter to the 3. A "writ of possession case" where ownership is concededly the
principal issue before the Regional Trial Court does not preclude
requirements for unlawful detainer. In an unlawful

CIVIL PROCEDURE 161

 CIVIL PROCEDURE
Morillo Notes
nor bar the execution of the judgment in an unlawful detainer suit
where the only issue involved is the material possession or
possession de facto of the premises (Heirs of F. Guballa, Sr. v.
C.A., et al.; etc., 168 SCRA 518 [l988]).
4. An action for quieting of title to property is not a bar to an
ejectment suit involving the same property (Quimpo v. de la
Victoria, 46 SCRA 139 [1972]).
5. Suits for specific performance with damages do not affect
ejectment actions (e.g., to compel renewal of a lease contract)
(Desamito v. Cuyegkeng. 18 SCRA 1184 [1966], Pardo de Tavera v.
Encarnacion, 22 SCRA 632 [1968], Rosales v. CFI, 154 SCRA 153
[1987]; Commander Realty, Inc. v. C.A., 161 SCRA 264 [1988]).
6. An action for reformation of instrument (e.g., from deed of
absolute sale to one of sale with pacto de retro) does not suspend
an ejectment suit between the same parties (Judith v. Abragan, 66
SCRA 600 [1975]).
7. An action for reconveyance of property or "accion
reivindicatoria" also has no effect on ejectment suits regarding the
same property (Del Rosario v. Jimenez, 8 SCRA 549 [1963]; Salinas
v. Navarro, 126 SCRA 167; De la Cruz v. C.A., 133 SCRA 520
[1984]; Drilon v. Gaurana, 149 SCRA 352 [1987]; Ching v. Malaya,
153 SCRA 412 [1987]; Philippine Feeds Milling Co., Inc. v. C.A.,
174 SCRA 108; Dante v. Sison, 174 SCRA 517 [1989]; Guzman v.
C.A. [annulment of sale and reconveyance], 177 SCRA 604 [1989];
Demamay v. C.A., 186 SCRA 608 [1990]; Leopoldo Sy v. C.A., et
al., [annulment of sale and reconveyance], G.R. No. 95818, Aug. 2,
1991).
8. Neither do suits for annulment of sale, or title, or document
affecting property operate to abate ejectment actions respecting
the same property (Salinas v. Navarro [annulment of deed of sale
with assumption of mortgage and/or to declare the same an
equitable mortgage], 126 SCRA 167 [1983]; Ang Ping v. RTC
[annulment of sale and title], 154 SCRA 153 [1987]; Caparros v.
C.A. [annullment of title], 170 SCRA 758 [1989]; Dante v. Sison
[annulment of sale with damages], 174 SCRA 517; Galgala v.
Benguet Consolidated, Inc. [annulment of document], 177 SCRA
288 [1989]).
The underlying reasons for the above rulings were that the actions
in the Regional Trial Court did not involve physical or de facto
possession and, on not a few occasions, that the case in the
Regional Trial Court was merely a ploy to delay disposition of the
ejectment proceeding, or that the issues presented in the former
could quite as easily be set up as defenses in the ejectment action
and there resolved. This is specially true in the cases at bar, where
the petitioners-lessees' claims — that the lessors (and the buyer of
the leased premises) had violated their leasehold rights because (a)
they (the lessees) were not accorded the right of preemption, (b)
the buyer was not required to respect their leases, and (c) the
lessees were denied the option to renew their leases upon the
expiration thereof — constituted their causes of action in the suits
commenced by them in the Regional Court.
WHEN JUDICIAL ACTION IS NOT NECESSARY:
- Contractual stipulations empowering the lessor to
repossess the leased property extrajudicially from a
lessee whose lease contract has expired have been
held to be valid. Under the contract, respondents
authorized the petitioner to extrajudicially take over
the possession of the leased military housing
quarters after their retirement. Being the law between
the parties, the stipulations must be respected. Since
the respondents agreed to abide by the regulations
of the military facility, judicial action is no longer
necessary to evict respondents from the military
quarters. (Republic vs. Peralta, 653 scra 629)
162 CIVIL PROCEDURE
Section 2: Lessor to proceed against
lessee only after demand
DEMAND IN UNLAWFUL DETAINER CASES:
- Unless otherwise stipulated, such action by the
lesser shall be commenced only after demand to pay
or comply with the conditions of the lease and to
vacate is made upon the lessee, or by serving written
notice of such demand upon the person found on the
premises if no person be found thereon, and the
lessee fails to comply therewith after fifteen (15) days
in the case of land or five (5) days in the case of
buildings. (Sec. 2, Rule 70)
- It is the demand to vacate the premises and the
refusal to do so which make unlawful the withholding
of the possession. Such refusal violates the plaintiff’s
right of possession and gives rise to an action for
unlawful detainer. (Larano vs. Sps. Calendacion, 525
SCRA 57)
FORM OF DEMAND:
- The demand may be in the form of a written notice
served upon the person found in the premises. The
demand may also be made by posting such written
notice on the premises if no person can be found
thereon. (Sec. 2, Rule 70)
- However, the demand upon a tenant may be verbal
and is deemed sufficient compliance with
jurisdictional requirements. (Jakihaca vs. Aquino, 181
SCRA 67). NOTE: Since this demand is not written,
sufficient evidence must be adduced to show that
there was indeed a demand like testimonies from
disinterested and unbiased witnesses.
WHEN RIGHT TO COMMENCE THE ACTION ARISES:
- The right to commence the action shall commence if
the lessee fails to comply with the requisite demand
after 15 days in the case of land or 5 days in the case
of buildings. (Sec. 2, Rule 70
WHEN DEMAND IS NOT NECESSARY IN UNLAWFUL
CASES:
a. When there is a stipulation dispensing with a
demand. (Ar.t 1169, NCC); or
b. When the ground for the suit is based on the
expiration of the lease. (Panganiban vs. Pilipinas
Shell Petroleum, 395 SCRA 624)
TACITA RECONDUCCION:
- If at the end of the contract of lease, the lessee
should continue enjoying the property leased for 15
days with the consent of the lessor, and no notice to
the contrary has been given, it is understood that
there is an implied new lease, not for the period of
the original contract, but for the time established in
Arts. 1682 & 1687 of the Civil Code. (Art. 1670, NCC)
- For instance, if the period for the lease has not been
fixed, it is understood to be from, year to year, if the
rent agreed is annual. It is understood to be from
month to month, if the agreed rent is monthly; from
week to week, if paid weekly; and from day to day if
paid daily. (Art. 1697, NCC)
- When there is tacita reconduccion, the lessee cannot
be deemed as unlawfully withholding the property.
 CIVIL PROCEDURE
Morillo Notes
There is no unlawful detainer to speak of. (Bowe vs.
CA, Supra)
REQUISITES OF TACITA RECONDUCCION:
1. The term of the original contract of lease has expired;
2. The lessor has not given the lessee a notice to
vacate; and
3. The lessee continued enjoying the thing leased for 15
days with the acquiescence of the lessor. This
acquiescence may be inferred from the failure to
serve a notice to quit. (Bow vs. CA, 220 SCRA 158)
Section 3: Summary procedure
SUMMARY NATURE OF THE ACTION:
- The proceedings in forcible entry and unlawful
detainer actions are summary in nature and designed
to provide for an expeditious means of protecting
actual possession or the right to possession of the
property involved. (Tubaniano vs. Razo, 335 SCRA
531)
- Both of these actions faull under the coverage of the
Rules on Summary Procedure irrespective of the
amount of damages or unpaid rentals sought to be
recovered. (Sec. 3, Rule 70)
COURT WITH JURISDICTION OVER FORCIBLE ENTRY
AND UNLAWFUL DETAINER:
- The action for forcible entry and unlawful detainer are
within the exclusive and original jurisdiction of the
MTC, MeTC, MCTC and shall be governed by the
rules on summary procedure irrespective of the
amount of damages or unpaid rentals sought to be
recovered. (Sec. 33(2), BP 129 as amended; Sec. 3,
Rule 70)
REAL AND IN PERSONAM NATURE OF THE ACTIONS;
VENUE:
- Forcible entry and unlawful detainer actions are
those affecting possession of real property, hence,
are real actions. The venue of these actions,
therefore, is the place where the property subject of
the action is situated. (Sec. 1, Rule 4)
- Forcible entry and unlawful detainer actions are not
only real actions. They are also actions in personman
because the plaintiff seeks to enforce a personal
obligation to vacate the property subject of the
action and restore physical possession thereof to the
plaintiff (Domagas vs. Jensen, 448 SCRA 663)
Section 4: Pleadings allowed
PLEADINGS ALLOWED IN FORCIBLE ENTRY AND
UNLAWFUL DETAINER:
1. Complaint;
2. Compulsory Counterclaim;
3. Cross-claim pleaded in the answer; and
4. Answers thereto. (Sec. 4, Rule 70)
NOTE: All pleadings shall be verified. (Sec. 4, Rule 70)
Section 5: Action on complaint
ACTION ON COMPLAINT:
- The court may, from an examination of the
allegations in the complaint and such evidence as
may be attached thereto, dismiss the case outright
on any of the grounds for the dismissal of a civil
action which are apparent therein. If no ground for
dismissal is found, it shall forthwith issue summons.
(Sec. 5, Rule 70)
Section 6: Answer
ANSWER TO THE COMPLAINT; WAIVER OF DEFENSES:
- The rule requires the defendant to file his answer to
the complaint and serve a copy thereof on the
plaintiff, within 10 days from service of summons.
(Sec. 6, Rule 70)
- Affirmative and negative defenses not pleaded in the
answer shall be deemed waived, except lack of
jurisdiction over the subject matter. (Sec. 6, Rule 70)
- Cross-claims and compulsory counterclaims not
asserted in the answer shall be considered barred.
The answer to counterclaims or cross-claims shall be
served and filed within 10 days from service of the
answer in which they are pleaded. (Sec. 6, Rule 70)
Section 7: Effect of failure to answer
EFFECT OF FAILURE TO ANSWER:
- Recall that under Sec. 3, Rule 9, if the defending
party fails to answer within the time allowed for the
filing of such pleading,, “the court shall, upon motion
of the claiming party, declare the defending party in
default”
- Under Sec. 7, Rule 70, If the defendant fails to
answer the complaint within the period above
provided, the court, motu proprio or on motion of the
plaintiff, shall render judgment as may be warranted
by the facts alleged in the complaint and limited to
what is prayed for therein. The court may in its
discretion reduce the amount of damages and
attorney's fees claimed for being excessive or
otherwise unconscionable, without prejudice to the
applicability of section 3 (c), Rule 9 if there are two or
more defendants.
Section 8: Preliminary conference;
appearance of parties
PRELIMINARY CONFERENCE; APPEARANCE OF
PARTIES:
- Not later than thirty (30) days after the last answer is
filed, a preliminary conference shall be held. The
provisions of Rule 18 on pre-trial shall be applicable
to the preliminary conference unless inconsistent
with the provisions of this Rule.
- The failure of the plaintiff to appear in the preliminary
conference shall be cause for the dismissal of his
complaint. The defendant who appears in the
absence of the plaintiff shall be entitled to judgment
on his counterclaim in accordance with the next
preceding section. All cross-claims shall be
dismissed.
CIVIL PROCEDURE 163
 CIVIL PROCEDURE
Morillo Notes
- If a sole defendant shall fail to appear, the plaintiff
shall likewise be entitled to judgment in accordance
with the next preceding section. This procedure shall
not apply where one of two or more defendants sued
under a common cause of action defense shall
appear at the preliminary conference.
- No postponement of the preliminary conference shall
be granted except for highly meritorious grounds and
without prejudice to such sanctions as the court in
the exercise of sound discretion may impose on the
movant. (Sec. 8, Rule 70)
Section 9: Record of preliminary conference
RECORDING OF PRELIMINARY CONFERENCE:
- Within five (5) days after the termination of the
preliminary conference, the court shall issue an order
stating the matters taken up therein, including but
not limited to:
1. Whether the parties have arrived at an
amicable settlement, and if so, the terms
thereof;
2. The stipulations or admissions entered into
by the parties;
3. Whether, on the basis of the pleadings and
the stipulations and admission made by the
parties, judgment may be rendered without
the need of further proceedings, in which
event the judgment shall be rendered within
thirty (30) days from issuance of the order;
4. A clear specification of material facts which
remain converted; and
5. Such other matters intended to expedite the
disposition of the case. (Sec. 9, Rule 70)
Section 10: Submission of affidavits
and position papers
SUBMISSION OF AFFIDAVITS AND POSITION PAPERS:
- Within ten (10) days from receipt of the order
mentioned in the next preceding section, the parties
shall submit the affidavits of their witnesses and
other evidence on the factual issues defined in the
order, together with their position papers setting
forth the law and the facts relied upon by them. (Sec.
10, Rule 70)
Section 11: Period for rendition of judgment
PERIOD FOR RENDITION OF JUDGMENT:
- Within thirty (30) days after receipt of the affidavits
and position papers, or the expiration of the period
for filing the same, the court shall render judgment.
- However, should the court find it necessary to clarify
certain material facts, during the said period, issue
an order specifying the matters to be clarified, and
require the parties to submit affidavits or other
evidence on the said matters within ten (10) days
from receipt of said order. Judgment shall be
rendered within fifteen (15) days after the receipt of
the last affidavit or the expiration of the period for
filing the same.
164 CIVIL PROCEDURE
- The court shall not resort to the foregoing procedure
just to gain time for the rendition of the judgment.
(Sec. 11, Rule 70)
Section 12: Referral for conciliation
CONCILIATION REQUIREMENT:
- In case conciliation is required, and there is no
showing of compliance with such requirement, the
case shall be dismissed. However, the dismissal is
one without prejudice. Therefore, the case may be
revived but only if the conciliation requirements are
complied with. (Sec. 12, Rule 70)
Section 13: Prohibited pleadings and motions
PROHIBITED PLEADINGS, PETITIONS AND MOTIONS:
1. Motion to dismiss the complaint except on the
ground of lack of jurisdiction over the subject matter,
or failure to comply with section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. 12. Interventions. (Sec. 13, Rule 70)
Section 14: Affidavits
AFFIDAVITS REQUIRED:
- The affidavits required to be submitted under this
Rule shall state only facts of direct personal
knowledge of the affiants which are admissible in
evidence, and shall show their competence to testify
to the matters stated therein.
- A violation of this requirement may subject the party
or the counsel who submits the same to disciplinary
action, and shall be cause to expunge the
inadmissible affidavit or portion thereof from the
record. (Sec. 14, Rule 70)
Section 15: Preliminary injunctions
PRELIMINARY INJUNCTION; HOW TO OBTAIN
POSSESSION OF THE PREMISES DURING THE
PENDENCY OF THE ACTION IN THE MTC:
- A possessor deprived of his possession through
forcible from the filing of the complaint, present a
motion in the action for forcible entry or unlawful
detainer for the issuance of a writ of preliminary
mandatory injunction to restore him in his
possession. The court shall decide the motion within
thirty (30) days from the filing thereof. (Sec. 15, Rule
70)
 CIVIL PROCEDURE
Morillo Notes
PRELIMINARY INJUNCTION TO PREVENT FURTHER
ACTS OF DISPOSSESSION:
- The court may grant preliminary injunction, in
accordance with the provisions of Rule 58 of the
ROC, to prevent the defendant from committing
further acts of dispossession against the plaintiff.
(Sec. 15, Rule 70)
Section 16: Resolving defense of ownership
RESOLVING THE DEFENSE OF OWNERSHIP:
- When the defendant raises the defense of ownership
in his pleadings and the question of possession
cannot be resolved without deciding the issue of
ownership, the issue of ownership shall be resolved
only to determine the issue of possession. (Sec. 16,
Rule 70)
- The assertion of ownership by the defendant over the
disputed property does not serve to divest the
inferior court of its jurisdiction. (Rural Bank of Sta.
Ignacia vs. Dimatulac, 401 SCRA 742). The
defendant cannot deprive the court of jurisdiction by
merely claiming ownership of the property involved.
(Perez vs. Cruz, 404 SCRA 487)
- When defendant raises the question of ownership in
his pleadings and the question of possession cannot
be resolved without deciding the issue of ownership,
the issue of ownership shall be resolved only to
determine the issue of possession. (Sec. 33(2), BP
129, as amended by RA 7691)
Section 17: Judgment
JUDGMENT:
- If after trial court finds that the allegations of the
complaint are true, it shall render judgment in favor
of the plaintiff for the restitution of the premises, the
sum justly due as arrears of rent or as reasonable
compensation for the use and occupation of the
premises, attorney's fees and costs.
- If a counterclaim is established, the court shall render
judgment for the sum found in arrears from either
party and award costs as justice requires. (Sec. 17,
Rule 70)
PERSONS BOUND BY THE JUDGMENT IN EJECTMENT
CASES
- As a rule, the judgment in an ejectment case is
binding only upon the parties properly impleaded
and given an opportunity to be heard. This is
because an ejectment suit is an action in personam.
However, the judgment may become binding on
anyone who has not been impleaded in certain
instances.
- Although an ejectment suit is an action in personam
wherein the judgment is binding only upon the
parties properly impleaded and given an opportunity
to be heard, the judgment becomes binding on
anyone who has not been impleaded if he or she is a:
1. Trespasser, squatter or agent of the
defendant fraudulently occupying the
property to frustrate the judgment;
2. Guest or occupant of the premises with the
permission of the defendant;
3. A transferee pendente lite;
4. Sublessee;
5. Co-lessee; or
6. member of the family, relative or privy of the
defendant. (Sunflower Neighborhood Assoc.
vs. CA, 410 SCRA 318)
Section 18: Judgment conclusive only on possession
JUDGMENT CONCLUSIVE ONLY ON POSSESSION:
- The judgment rendered in an action for forcible entry
or detainer shall be conclusive with respect to the
possession only and shall in no wise bind the title or
affect the ownership of the land or building. Such
judgment shall not bar an action between the same
parties respecting title to the land or building.
- The judgment or final order shall be appealable to
the appropriate Regional Trial Court which shall
decide the same on the basis of the entire record of
the proceedings had in the court of origin and such
memoranda and/or briefs as may be submitted by
the parties or required by the Regional Trial Court.
(Sec. 18, Rule 70)
Section 19: Immediate execution of judgment; how to
stay same
IMMEDIATE EXECUTION OF JUDGMENT:
- If judgment is rendered against the defendant,
execution shall issue immediately upon motion
unless an appeal has been perfected and the
defendant to stay execution files a sufficient
supersedeas bond, approved by the Municipal Trial
Court and executed in favor of the plaintiff to pay the
rents, damages, and costs accruing down to the time
of the judgment appealed from, and unless, during
the pendency of the appeal, he deposits with the
appellate court the amount of rent due from time to
time under the contract, if any, as determined by the
judgment of the Municipal Trial Court. In the absence
of a contract, he shall deposit with the Regional Trial
Court the reasonable value of the use and
occupation of the premises for the preceding month
or period at the rate determined by the judgment of
the lower court on or before the tenth day of each
succeeding month or period. The supersedeas bond
shall be transmitted by the Municipal Trial Court, with
the papers, to the clerk of the Regional Trial Court to
which the action is appealed.
- All amounts so paid to the appellate court shall be
deposited with said court or authorized government
depositary bank, and shall be held there until the final
disposition of the appeal, unless the court, by
agreement of the interested parties, or in the
absence of reasonable grounds of opposition to a
motion to withdraw, or for justifiable reasons, shall
decree otherwise. Should the defendant fail to make
the payments above prescribed from time to time
during the pendency of the appeal, the appellate
court, upon motion of the plaintiff, and upon proof of
such failure, shall order the execution of the
judgment appealed from with respect to the
CIVIL PROCEDURE 165
 CIVIL PROCEDURE
Morillo Notes
restoration of possession, but such execution shall
not be a bar to the appeal taking its course until the
final disposition thereof on the merits.
- After the case is decided by the Regional Trial Court,
any money paid to the court by the defendant for
purposes of the stay of execution shall be disposed
of in accordance with the provisions of the judgment
of the Regional Trial Court. In any case wherein it
appears that the defendant has been deprived of the
lawful possession of land or building pending the
appeal by virtue of the execution of the judgment of
the Municipal Trial Court, damages for such
deprivation of possession and restoration of
possession and restoration of possession may be
allowed the defendant in the judgment of the
Regional Trial Court disposing of the appeal. (Sec.
19, Rule 70)
Section 20: Preliminary mandatory injunction in case of
appeal
PRELIMINARY INJUNCTION WHEN CASE IS ON APPEAL
TO THE RTC:
- If the judgment of the MTC is appealed, the RTC may
issue a writ of preliminary mandatory injunction to
restore the plaintiff in his possession, upon his
motion which shall be filed within 10 days from the
perfection of the appeal. (Sec. 20, Rule 70)
- The grant of a writ of preliminary mandatory
injunction is predicated upon a finding that the (a)
defendant's appeal is frivolous or dilatory, or (b)
plaintiff’s appeal is prima facie meritorious. (Sec. 20,
Rule 70)
Section 21: Immediate execution on appeal to Court of
Appeals or Supreme Court
DECISION OF THE RTC ON APPEAL IS IMMEDIATELY
EXECUTORY
- The judgment of the Regional Trial Court against the
defendant shall be immediately executory, without
prejudice to a further appeal that may be taken
therefrom. (Sec. 21, Rule 70)
- However, Sec. 21, 19911 Rule on Summary
Procedure suggests that decisions of the RTC in civil
cases under summary procedure appealed to it,
including forcible entry and unlawful detainer, are
immediately executory whether or not the judgment
be against the plaintiff or the defendant because the
said rule makes no specific reference to the
defendant.
RULE 71
CONTEMPT
GENERAL DEFINITION OF CONTEMPT OF COURT:
- Contempt of court as a willful disregard or
disobedience of a public authority, In its broad
sense, contempt is a disregard of, or disobedience
166 CIVIL PROCEDURE
to, the rules or orders of a legislative or judicial body
or an interruption of its proceedings by disorderly
behavior behavior or insolent language in its
presence or so near thereto as to disturb its
proceedings or to impair the respect due to such a
body. In its restricted and more usual sense,
contempt comprehends a despising of the authority,
justice, or dignity of a court. The phrase contempt of
court is generic, embracing within its legal
signification a variety of different acts. (Lorenzo
Shipping Corp. vs. Distribution Association
Management, 656 SCRA 331)
CONTEMPT POWER IS INHERENT IN COURTS:
- The power to punish for contempt is inherent in all
courts, and need not be specifically granted by
statute. It lies at the core of the administration of the
judicial system. Indeed, there ought to be no
question that courts have the power, by virtue of
their very creation, to impose silence, respect, and
decorum in their presence, submission to their lawful
mandates, and preserve themselves and their
officers from the approach and insults of pollution.
The power to punish for contempt essentially exists
for the preservation of order in judicial proceedings
and for the enforcement of judgments, orders, and
mandates of the courts, and consequently, for the
due administration of justice.
- The reason behind the power to punish for contempt
is that respect for the courts guarantees the stability
of their institution; without such guarantee, the
institution of the courts would be resting on a very
shaky foundation. (Lorenzo Shipping vs. Distribution
Association, supra)
PURPOSES AND NATURE OF CONTEMPT
PROCEEDINGS:
1. Vindication of public interest by punishment of
contemptuous conduct; and
2. Coercion to compel the contemnor to do what the
law requires him to uphold the power of the Court;
and
3. To Secure the rights of the parties to a suit awarded
by the Court. (Regalado vs. Go, 514 SCRA 616)
4. To preserve the order in a judicial proceedings and
for the enforcement of judgments, orders, and
mandates of the courts, and consequently, for the
due administration of justice. (Lorenzo Shipping Corp
vs. Distribution Management Assoc., Supra)
DIRECT AND INDIRECT CONTEMPT:
LORENZO SHIPPING CORP. vs. DISTRIBUTION
MANAGEMENT ASSOCIATION OF THE PHILIPPINES
GR no. 155849, August 31, 2011
Contempt of court is of two kinds, namely: direct contempt, which
is committed in the presence of or so near the judge as to obstruct
him in the administration of justice; and constructive or indirect
contempt, which consists of willful disobedience of the lawful
process or order of the court.
The punishment for the first is generally summary and immediate,
and no process or evidence is necessary because the act is
committed in facie curiae. The inherent power of courts to punish
contempt of court committed in the presence of the courts without
further proof of facts and without aid of a trial is not open to
question, considering that this power is essential to preserve their
 CIVIL PROCEDURE
Morillo Notes
authority and to prevent the administration of justice from falling
into disrepute; such summary conviction and punishment accord
with due process of law. There is authority for the view, however,
that an act, to constitute direct contempt punishable by summary
proceeding, need not be committed in the immediate presence of
the court, if it tends to obstruct justice or to interfere with the
actions of the court in the courtroom itself. Also, contemptuous
acts committed out of the presence of the court, if admitted by the
contemnor in open court, may be punished summarily as a direct
contempt, although it is advisable to proceed by requiring the
person charged to appear and show cause why he should not be
punished when the judge is without personal knowledge of the
misbehavior and is informed of it only by a confession of the
contemnor or by testimony under oath of other persons.
In contrast, the second usually requires proceedings less summary
than the first. The proceedings for the punishment of the
contumacious act committed outside the personal knowledge of
the judge generally need the observance of all the elements of due
process of law, that is, notice, written charges, and an opportunity
to deny and to defend such charges before guilt is adjudged and
sentence imposed.
Plainly, therefore, the word summary with respect to the
punishment for contempt refers not to the timing of the action with
reference to the offense but to the procedure that dispenses with
the formality, delay, and digression that result from the issuance of
process, service of complaint and answer, holding hearings, taking
evidence, listening to arguments, awaiting briefs, submission of
findings, and all that goes with a conventional court trial.
A distinction between in-court contempts, which disrupt court
proceedings and for which a hearing and formal presentation of
evidence are dispensed with, and out-of-court contempts, which
require normal adversary procedures, is drawn for the purpose of
prescribing what procedures must attend the exercise of a court’s
authority to deal with contempt. The distinction does not limit the
ability of courts to initiate contempt prosecutions to the summary
punishment of in-court contempts that interfere with the judicial
process.
Section 1: Direct contempt punished similarly
ACTS PUNISHABLE AS DIRECT CONTEMPT:
1. Misbehavior in the presence of or so near the court
as to obstruct or interrupt the proceedings before the
same;
2. Disrespect toward the court;
3. Offensive personalities toward others;
4. Refusal to be sworn as a witness or to answer as
witness; and
5. Refusal to subscribe an affidavit or deposition when
lawfully required to do so. (Sec. 1, Rule 71)
6. The acts of a party or a counsel which constitute
willful and deliberate forum shopping also amount to
direct contempt. (Sec. 5, Rule 71)
Examples of Direct Contempt
- Unfounded accusations, allegations or words tending
to embarrass the court or bring it into disrepute have
no place in a pleading. If a pleading containing
derogatory, offensive and malicious statements is
submitted in the same court or judge in which the
proceedings are pending, it is direct contempt,
equivalent as it is to a misbehavior committed in the
presence of or so near a court or judge as to
interrupt the administration of justice. (RE: Letter
dated 21 February 2205 of Atty. Noel S.. Sorreda,
464 SCRA 32)
NO FORMAL PROCEEDING REQUIRED; SUMMARY
PROCEEDINGS:
- No formal proceedings are required to cite a person
in direct contempt. The court may summarily
adjudge one in direct contempt without a hearing.
(Sec. 1, Rule 71; Encines vs. National Bookstore, 464
SCRA 572)
- The court may proceed, upon its own knowledge of
the facts without further proof and without issue or
trial in any form, to punish a contempt committed
directly under its eye or within its view. But there
must be adequate facts to support a summary order
for contempt in the presence of the court. The
exercise of the summary power to imprison for
contempt is a delicate one and care is needed to
avoid arbitrary or oppressive conclusions. (Lorenzo
Shipping Corp. vs. Distribution Management Assoc.,
Supra)
PENALTIES FOR DIRECT CONTEMPT:
1. If the act constituting direct contempt against the
RTC or a court of equivalent or higher rank, the
penalty is a fine not exceeding P2,000.00 or
imprisonment not exceeding 10 days, or both.
(Sec.1, Rule 71);
2. If the act constituting direct contempt was
committed against a lower court, the penalty is a fine
not exceeding P200.00 or imprisonment not
exceeding 1 day, or both. (Sec. 1, Rule 71)
3. If the contempt consists in the refusal or omission to
do an act which is yet within the power of the
respondent to perform, he may be imprisoned by
order of the court concerned until he performs it.
(Sec. 8, Rule 71)
Section 2: Remedy therefrom
REMEDY OF A PERSON ADJUDGED IN DIRECT
CONTEMPT:
- The person adjudged in direct contempt by any court
may not appeal therefrom, but may avail himself of
the remedies of certiorari or prohibition. The
execution of the judgment shall be suspended
pending resolution of such petition, provided such
person files a bond fixed by the court which rendered
the judgment and conditioned that he will abide by
and perform the judgment should the petition be
decided against him. (Sec. 2, Rule 71; Canada vs.
Suerte, 474 SCRA 379)
Section 3: Indirect contempt to be punished after
charge and hearing
NATURE OF INDIRECT CONTEMPT:
1. Disobedience or resistance to a lawful writ, process,
order or judgment of a court;
2. Any abuse of or any unlawful interference with the
processes or proceedings of a court not constituting
direct contempt; and
3. Any improper conduct tending, directly or indirectly,
to impede, obstruct or degrade the administration of
justice. (Siy vs. NLRC, 468 SCRA 154)
ACTS PUNISHABLE AS INDIRECT CONTEMPT:
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Morillo Notes
1. Misbehavior of an officer of a court in the
performance of his official duties or in his official
transactions;
2. Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court, including the
act of a person who, after being dispossessed or
ejected from any real property by the judgment or
process of any court of competent jurisdiction,
enters or attempts or induces another to enter into or
upon such real property, for the purpose of executing
acts of ownership or possession, or in any manner
disturbs the possession given to the person
adjudged to be entitled thereto;
3. Any abuse of or any unlawful interference with the
processes or proceedings of a court not constituting
direct contempt under section 1 of this Rule;
4. Any improper conduct tending, directly or indirectly,
to impede, obstruct, or degrade the administration of
justice;
5. Assuming to be an attorney or an officer of a court,
and acting as such without authority;
6. Failure to obey a subpoena duly served;
7. The rescue, or attempted rescue, of a person or
property in the custody of an officer by virtue of an
order or process of a court held by him. (Sec. 3, Rule
71)
Examples of Indirect Contempt:
- The failure by counsel to inform the court of the
death of his client constitutes indirect contempt
within the purview of Sec. 3, Rule 71, since it
constitutes an improper conduct tending to impede
the administration of justice. It is also a ground for
disciplinary action under Sec. 16, Rule 3.
Section 4: How proceedings commenced
HOW A PROCEEDING FOR INDIRECT CONTEMPT IS
COMMENCED:
- Unlike direct contempt which is a summary
procedure, an act constituting an indirect contempt
is to be punished only after a charge in writing and
hearing. (Sec. 3, Rule 71)
- However, The requirement of a written charge and
hearing shall not be construed to prevent the court
from issuing process to bring the respondent into
court, or from holding him in custody pending the
proceedings. (Sec. 3, Rule 71)
PROCEDURAL REQUISITES BEFORE THE ACCUSED MAY
BE PUNISHED FOR INDIRECT CONTEMPT:
1. Charge in writing;
2. Opportunity for the person charged to appear and
explain his conduct; and
3. Opportunity to be heard by himself or counsel.
(Barredo-Fuentes vs. Albarracin, 456 SCRA 120)
TWO WAYS BY WHICH A PERSON CAN BE CHARGED
WITH DIRECT INDIRECT CONTEMPT:
1. By order or final charge initiated by the court
motu proprio:
- Proceedings for indirect contempt may be
initiated motu propio by the court against
which the contempt was committed by an
order or any other formal charge requiring
168 CIVIL PROCEDURE
the respondent to show cause why he
should not be punished for contempt. (Sec.
4, Rule 71)
2. Through a verified petition:
- In all other cases, charges for indirect
contempt shall be commenced by a verified
petition with supporting particulars and
certified true copies of documents or papers
involved therein, and upon full compliance
with the requirements for filing initiatory
pleadings for civil actions in the court
concerned. If the contempt charges arose
out of or are related to a principal action
pending in the court, the petition for
contempt shall allege that fact but said
petition shall be docketed, heard and
decided separately, unless the court in its
discretion orders the consolidation of the
contempt charge and the principal action
for joint hearing and decision. (Sec. 4, Rule
71)
Section 5: Where charge to be filed
COURT WHERE THE CHARGE FOR INDIRECT CONTEMPT
IS TO BE FILED:
1. Where the act was committed against a RTC or a
court of equivalent or higher rank, or against an
officer appointed by it, the charge may be filed with
such court. (Sec. 5, Rule 71)
2. Where the act was committed against a lower court,
the charge may be filed with the RTC of the place in
which the lower court is sitting. It may also be filed in
the lower court against, which the contempt was
allegedly committed. The decision of the lower court
is subject to appeal to the RTC. (Sec. 5, Rule 71; En
Banc Resolution, SC, July 21, 1998)
3. Unless otherwise provided by law, where the act was
committed against persons, entitles, bodies or
agencies exercising quasi-judicial functions, the
charge shall be filed with the RTC of the place
wherein the contempt was committed. (Sec. 12, Rule
71)
Section 6: Hearing; release on bail
NECESSITY FOR HEARING:
- If the hearing is not ordered to be had forthwith, the
respondent may be released from custody upon
filing a bond, in an amount fixed by the court, for his
appearance at the hearing of the charge.
- On the day set therefor, the court shall proceed to
investigate the charge and consider such comment,
testimony or defense as the respondent may make or
offer. (Sec. 6, Rule 71)
Section 7: Punishment for indirect contempt
PUNISHMENT FOR INDIRECT CONTEMPT:
1. Where the act was committed against a RTC or a
court of equivalent or higher rank, he may be
punished by a fine not exceedings P30,000.00 or
 CIVIL PROCEDURE
Morillo Notes
imprisonment not exceeding 6 months, or both. (Sec.
7, Rule 71)
2. Where the act was committed against a lower court,
he may be punished by a fine not exceeding
P5,000.00, or imprisonment not exceeding 1 month,
or both. (Sec. 7, Rule 71; Ciocon-Reer vs. Lubao,
AM . OCA IPI 093210-RTJ, June 20, 2012)
3. If the contempt consists in the violation of a writ of
injunction, temporary restraining order or status quo
order, he may also be ordered to make complete
restitution to the party injured by such violation of the
property involved or such amount as may be alleged
and proved. (Sec. 7, Rule 71)
4. Where the act was committed against a person or
entity exercising quasi-judicial functions, the penalty
imposed shall depend upon the provisions of the law
authorizing a penalty for contempt against such
persons or entities. However, Rule 71, has a
suppletory effect. (Sec. 12, Rule 71)
Section 8: Imprisonment until order obeyed
IMPRISONMENT UNTIL THE ORDER IS OBEYED:
- When the contempt consists in the refusal or
omission to do an act which is yet in the power of the
respondent to perform, he may be imprisoned by
order of the court concerned until he performs it.
(Sec. 8, Rule 71)
- It is only the judge, who orders the confinement of a
person for contempt of court, who can issue the
Order of Release. (Inoturan vs. Limsiaco, Jr., 458
SCRA 48)
Section 9: Proceeding when party released
on bail fails to answer
PROCEEDING WHEN A PARTY RELEASED ON BAIL FAILS
TO ANSWER:
- When a respondent released on bail fails to appear
on the day fixed for the hearing, the court may issue
another order of arrest or may order the bond for his
appearance to be forfeited and confiscated, or both;
and, if the bond be proceeded against, the measure
of damages shall be the extent of the loss or injury
sustained by the aggrieved party by reason of the
misconduct for which the contempt charge was
prosecuted, with the costs of the proceedings, and
such recovery shall be for the benefit of the party
injured. If there is no aggrieved party, the bond shall
be liable and disposed of as in criminal cases. (Sec.
9, Rule 71)
Section 10: Court may release respondent
RELEASE OF THE RESPONDENT:
- The court which issued the order imprisoning a
person for contempt may discharge him from
imprisonment when it appears that public interest will
not be prejudiced by his release. (Sec. 10, Rule 71)
Section 11: Review of judgment or final order; bond for
stay
REMEDY OF A PERSON ADJUDGED IN INDIRECT
CONTEMPT:
- A person adjudged in direct contempt may appeal
from the judgment or final order of the court in the
same manner as in criminal cases. However, the
appeal will have the effect of suspending the
judgment if the person adjudgment in contempt does
not file a bond in an amount fixed by the court from
which the appeal is taken. This bond is conditioned
upon his performance of the judgment or final order
if the appeal is decided against him. (Sec. 11, Rule
71)
REVIEW OF JUDGMENT OR FINAL ORDER; BOND FOR
STAY:
- The judgment or final order of a court in a case of
indirect contempt may be appealed to the proper
court as in criminal cases. But execution of the
judgment or final order shall not be suspended until a
bond is filed by the person adjudged in contempt, in
an amount fixed by the court from which the appeal
is taken, conditioned that if the appeal be decided
against him he will abide by and perform the
judgment or final order. (Sec. 11, Rule 71)
Section 12: Contempt against
quasi-judicial entitles
CONTEMPT AGAINST QUASI-JUDICIAL ENTITIES:
- Unless otherwise provided by law, this Rule shall
apply to contempt committed against persons,
entities, bodies or agencies exercising quasi-judicial
functions, or shall have suppletory effect to such
rules as they may have adopted pursuant to authority
granted to them by law to punish for contempt. The
Regional Trial Court of the place wherein the
contempt has been committed shall have jurisdiction
over such charges as may be filed therefor. (Sec. 12,
Rule 71)
- The NLRC (and the labor arbiters) may hold any
offending party in contempt, directly or indirectly,
and impose appropriate penalties in accordance with
law. The penalty for direct contempt consists of
either imprisonment or fine, the degree or amount
depends on whether the contempt is against the
Commission of the labor arbiter. (Art. 218, Labor
Code). However, the LCP requires the labor arbiter or
the NLRC to deal with indirect contempt in the
manner prescribed under Rule 71, ROC.
OTHER KINDS OF CONTEMPT:
1. Criminal Contempt - consists in conduct that is
directed against the authority and dignity of a court
or judge acting judicially, as in unlawfully assailing or
discrediting the authority and dignity of the court or
judge, or doing a duly forbidden act. (Lorenzo
Shipping Corp. vs. Distribution Association
Management, Supra)
2. Civil Contempt - consists in the failure to do
something ordered to be done by a court or judge for
the benefit of the opposing party therein and is,
therefore, an offense against the party in whose
behalf the violated order was made. (Montenegro vs.
Montenegro, 431 SCRA 415)
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