ATENEO CENTRAL BAR OPERATIONS 2007 Remedial Law SUMMER REVIEWER

3. Special Proceedings – remedy by which a party seeks to establish a status, a right, or a particular fact.

CIVIL PROCEDURE

CLASSIFICATION OF ACTIONS (A) As to nature
ORDINARY ACTION Governed by rules. CIVIL ordinary SPECIAL CIVIL ACTION Also governed by ordinary rules but SUBJECT to specific rules prescribed (Rules 62 to 71). Special features not found in ordinary civil actions.

RULE 1 GENERAL PROVISIONS Section 1. Title of the Rules The Rules of Court are not penal statutes. They cannot be given retroactive effect. They can, however, be made applicable to cases pending at the time of their passage and therefore are retroactive in that sense. Under the 1987 Constitution, the rule-making power of the Supreme Court has the following limitations: 1. It must provide a simplified and inexpensive procedure for the speedy disposition of cases; 2. Uniform for all courts of the same grade; and 3. Shall not diminish, increase or modify substantive rights (Art: VIII Section 5[5]). Section 2. In what courts applicable Section 3. Cases governed ACTION CLAIM An ordinary suit in a A right possessed by one court of justice. against another. One party prosecutes The moment said claim is another for the filed before a court, the enforcement or claim is converted into an protection of a right or action or suit. QuickT the prevention or redress ime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. of a wrong. APPLICABILITY: 1. Civil Action – one by which a party sues another for the enforcement or protection of a right or the prevention or redress of a wrong. 2. Criminal Action – one by which the Stake prosecutes a person for an act or omission punishable by law.

Formal demand of one’s legal rights in a court of justice in the manner prescribed by the court for by the law.

(B) As to object
ACTION IN REM Direct against the thing itself. Jurisdiction over the person of the defendant is NOT required. ACTION IN PERSONAM Directed against particular persona Jurisdiction over the person of the defendant IS required. ACTION QUASI IN REM Directed against particular persons. Jurisdiction over the person of the defendant is NOT required as long as jurisdiction over the res is acquired. A proceeding to subject the interest of a named defendant over a particular property to an obligation or lien burdening it.

A proceeding to determine the state or condition of a thing.

An action to impose a responsibility or liability upon a person directly.

Judgment is binding on the whole world.

Ex. Probate proceeding; cadastral proceeding.

Judgment is binding only upon parties impleaded or their successors in interest. Ex. Action for specific performance; action for breach of contract.

Judgment binding upon particular persons.

Ex. An action for partition; action to foreclose real estate mortgage.

—Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G. Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan—

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007
The distinction is important in determining whether or not jurisdiction over the persons of the defendant is required. (C) As to cause REAL ACTION PERSONAL ACTION Ownership or Personal possession of property is real property is sought to be involved. recovered or where damages for breach of contract are sought. Founded on Founded on privity of real privity of estate. contract. Filed in the Filed in the court where the court where the property or any plaintiff or any part thereof is of the situated defendants resides, at the option of the plaintiff Ex. Accion Ex. Action for a reinvidicatoria sum of money. MIXED ACTION Both real and personal properties are involved. The Rules of Court are applicable by analogy or in a suppletory character and whenever practicable and convenient. Section 5. Commencement of action A civil action is commencement by: 1. The FILING OF THE COMPLAINT (when 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); and Cabrera v. Tiano 8 SCRA 54 (1963) Civil actions are deemed commenced from the date of the filing and docketing of the complaint, without taking into account the issuance and service of summons 2. The PAYMENT OF DOCKET FEES (determined not only in the amount of the claim but also by the amount of damages). NOTE: The amount of damages should be specified not only in the body of pleading but also in the prayer. Ex. Accion publicana with a claim for damages The court may allow the payment of the deficient docket fee within a reasonable period but not beyond the applicable prescriptive or reglementary period. An action can be commenced by filing the complaint by registered mail. In which case, it is the date of mailing that is considered as the date of filing and not the date of the receipt thereof by the clerk of court. Section 6. Construction GENERAL RULE: Liberal construction EXCEPTIONS: 1. reglementary periods; 2. rule on forum shopping.

Founded both.

on

The rules on venue of real actions shall govern.

The distinction is significant in determining the venue of an action. (D)As to place of filing LOCAL ACTION TRANSITORY ACTION Must be brought in a Dependent on the place particular place where the party resides where the subject regardless of where the property is located, cause of action arose subjec unless there is an to Section 4, Rule 4. agreement to the contrary (Section 4, Rule 4). Ex. Action to recover QuickTime™ and a to recover sum Ex. Action decompressor real property. TIFF (Uncompressed) this picture. of money are needed to see Section 4. In what cases not applicable

RULE 2 CAUSE OF ACTION Section 1. Ordinary Civil Actions, basis of

NOT APPLICABLE TO: 1. Election Cases; 2. Land registration/cadastral cases; 3. Naturalization; 4. Insolvency proceedings; 5. Other cases not provided in the Rules of Court.

Section 2. Cause of action defined CAUSE OF ACTION – is the act or omission by which a party violates the right of another.

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007
The essential requisite of a cause of action 1. LEGAL RIGHT of the plaintiff. 2. CORRELATIVE OBLIGATION of the defendant to respect plaintiff’s right; and 3. Act or omission of the defendant in VIOLATION of the plaintiff’s legal right. RIGHT OF ACTION – right of a person to bring and prosecute action to obtain judgment. The essential requisites of a right of action: 1. There must be a GOOD CAUSE; 2. Compliance with all the CONDITONS PRECEDENT; and 3. Action, must be instituted by the PROPER PARTY. CAUSE OF ACTION Delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff. The reason action. for the RIGHT OF ACTION Remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him. The remedy or means afforded or the consequent relief. The remedial right given to a person because of the occurrence of the alleged facts. A matter of right and depends on substantive law. Affected by defenses. affirmative Section 3. One suit for a single cause of action Section 4. Splitting a cause of action, effect of SPLITTING OF CAUSE OF ACTION – is the act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. It is NOT ALLOWED. PURPOSE: To avoid multiplicity of suits and unnecessary vexation and harassment of defendants. Applies NOT only to complaints counterclaims and cross-claims. but also to

Remedies against splitting a single cause of action: A. Motion to dismiss on the ground of: 1. Litis pendentia (Rule 16, Section 1 [e]); or 2. Res judicata (Rule 16, Section 1 [f]). B. An answer alleging either as affirmative defense. (Rule 16, Section 6) GENERAL RULE: A contract embraces only one cause of action even if it contains several stipulations. EXCEPTION: A contract to do several things at several times is divisible, and judgment for a single breach of a continuing contract is not a bar to a suit for a subsequent breach. (e.g., promissory not payable in several installments so long as there is no acceleration clause) Blossom & Co. v. Manila Gas Corp., 55 Phil.226 (1930) DOCTRINE OF ANTICIPATORY BREACH An UNQUALIFIED and POSITIVE REFUSAL to perform a contract, though the performance thereof is not yet due, may, if the renunciation goes into the whole contract, be treated as a complete breach which will entitle the injured party to bring his action at once. Section 5. Joinder of causes of action Joinder of causes of action is purely permissive. The plaintiff can always file separate actions for each cause of action.

The formal statement of the operative facts that gives rise to remedial right. A matter of procedure and depends on the pleadings filed by the parties. Not affected by affirmative defenses (fraud, prescription, estoppel, etc.). RELIEF REMEDY

SUBJECT MATTER The procedure The thing The redress, or appropriate wrongful act, protection, legal form of contractor award or relief QuickTime™ and a property which is of action coercive TIFF (Uncompressed) decompressor which maythis picture. directly involved measure are needed to see be availed of by in the action, which the the plaintiff as concerning which plaintiff prays the means to the wrong has the court to obtain the been done and render in his desired relief. with respect to favor as which the consequence controversy has of the delict arisen. committed by the defendant.

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3. causes of action. PROHIBITED. Rule 3). Misjoinder of causes of action Not a ground for dismissal of an action. NECESSARY PARTIES Should be joined whenever possible. substantive law prevails over procedural laws. parties. Where the causes of action are between the same parties but pertain to different venues or jurisdiction is with the Regional Trial Court. No valid judgment if indispensable party is not joined.A right to relief in respect to or arising out of the same transaction or series of transaction and . DEFENDANT . An entity authorized by law. They are those with such an interest in the There is no sanction against non-joinder of separate causes of action since a plaintiff needs only a single cause of action to maintain an action. SPLITTING OF A JOINDER OF CAUSES CAUSE OF ACTION OF ACTION There is a single cause Contemplate several of action. Who may be parties. A misjoined case of action may be severed and proceeded with separately. 2. and b. The original plaintiff becoming a defendant to original defendant’s counterclaim. venue lies thereon. An unwilling plaintiff or one who should be joined as plaintiff but refuses to give his consent thereto (Section 10. One of the causes of action falls within the jurisdiction of the RTC. One necessary to a complete determination or settlement of the questions involved therein: Section 2. and 3. irrespective of whether the causes of action arose out of the same or different transaction. (Totality Rule) NOTE: The following are the elements for a joinder of parties (Section 5. They are those whose presence is necessary to Page 6 of 289 . PLAINTIFF – one having an interest in the matter of the action or in obtaining the relief demanded. INDISPENSABLE PARTIES Must be joined under any and all conditions. Where the claims in the causes of action are principally for recovery of money. RULE 3 PARTIES TO CIVIL ACTIONS Section 1.one claiming an interest in the controversy or the subject thereof adverse to the plaintiff. The party joining the causes of action must comply with the rules on joinder of parties. provided that: a. NOTE: We will follow the totality rule in BP 129 because it is elementary in statutory construction that in case of conflict. The joinder shall not include special and actions or actions governed by special rules. 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. or 3.A common question of law TOTALITY RULE UNDER BP129 [Section 33(1)] Where there are several claims or causes of actions between the same or different parties. 2. A juridical person. It multiplicity of suits and minimizes multiplicity of double vexation on the suits and inconvenience QuickTime™ and a TIFF (Uncompressed) decompressor part of the defendant ed to seeonpicture. the action can proceed even in their absence. Rule 3). plaintiff and defendant PARTIES TO A CIVIL ACTION 1. their presence being a sine qua non for the exercise of judicial power. It causes ENCOURAGED. The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined. A natural person 2. the amount of the demand shall be the totality of the claims in all causes of action. embodied in the same complaint. . 4. The term defendant may include: 1. the are need this Section 6.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 REQUISITES FOR JOINDER OF CAUSES OF ACTION: 1. the aggregate amount claimed shall be the test of jurisdiction.

There is a question of law or fact common to all the plaintiffs or defendants. executors. Unwilling co-plaintiff Tuason v. and 2. Minor or incompetent Under the present rules.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 controversy that a final would necessarily affect their rights so that the court cannot proceed without their presence. 2. adjudicate the whole controversy but whose interests are so far separable that a final decree can be made in their absence without affecting them. and 3. Section 9. it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained by ordering plaintiff to file an amended complaint impleading the necessary party therein as co-defendant. Necessary (or proper) parties – those who are not indispensable but ought to be joined as parties if complete relief is to be accorded as to those already parties. State the name of the necessary party. SERIES OF TRANSACTIONS – transactions connected with the same subject matter of the suit. 5. Compulsory joinder of Indispensable parties Section 8. Rule 3 of the Rules of Court requires that an action must be brought in the name but not necessarily by the real party in interest. Such joinder is not otherwise prescribed by the provisions of the rules on jurisdiction and venue. being sufficient that his incompetency be alleged in the corresponding pleadings.. Section 7. Spouses as parties Section 5. The beneficiary shall be included in the title of the case and shall be deemed to be real part in interest. Section 6. 2.the rule on permissive joinder of parties is that they can be joined in one single complaint or may themselves maintain or be sued in separate suits. Requisites of permissive joinder of parties: 1. Permissive joinder of parties PERMISSIVE JOINDER . of for a complete determination or settlement of the claim subject of the action (may or may not be joined) 3. Section 10. a suit may be brought by or against a minor or incompetent but with the assistance of his parents or his guardian. Quasi parties – those in whose behalf a class or representative suit is brought. or administrators. i. In fact. Indispensable parties-those without whom and final determination can be had of an action (must be joined under all conditions). to file the complaint in the name of the plaintiff. the practice is for an attorney in fact to bring the action. Non-joinder of necessary parties to be pleaded Duty of a pleader whenever a necessary party is not joined or impleaded: 1. if known. Representative parties – those acting in fiduciary capacity such as trustees. A person NEED NOT be judicially declared incompetent.those who are required to be joined as co-parties in suits by or against another party as may be provided by the applicable substantive law or procedural rule such as in the case of spouses under Section 4. Representative this picture. are needed to see as parties QuickTime™ and a Section 4. TIFF (Uncompressed) decompressor Section 3. Necessary party JOINT DEBTORS – indispensable party in a suit against him but necessary party in a suit against his co-debtor. Bolanos 95 Phil 06 (1954) Section 2. Pro forma parties. NOTE: The failure to comply with the court’s order to include or join a necessary party without justifiable cause shall be deemed a waiver of the claim against such party. Right to relief arises out of the same transaction or series of transactions. State why said necessary arty is omitted in the pleading Should the court find the reason for the omission unmeritorious.e. it Page 7 of 289 . 4. CLASSIFICATION OF PARTIES IN INTEREST: 1. guardians.

Community of interests. 2001). or other designation. They enter into a transaction. A wrong or delict is committed against a third person in the course of such transaction. NOTE: Any party in interest shall have the right to intervene to protect his individual interest. 5. Section 15. he may join any OR all of them in the alternative. 3. Section 11. Section 14. by a MOTION TO STRIKE THE NAMES OF THE PARTIES impleaded. heir. 4. sued as unknown owner.e. NOTE: Persons associated in an entity without juridical personality may be sued under the name by which they are generally or commonly known. 2. not a mere additional defendant. Fictitious name may be used because of ignorance of defendant’s true name an said ignorance is alleged in the complaint. he may be made a defendant and the reason therefore shall be stated in the complaint. defendant Unknown identity or name of REQUISITES: 1. Whether the suit is or is not a class suit depends upon the attending facts. The service of summons may be effected upon all the defendants by serving upon any of them. The action must however be converted into an action in rem or quasi by attaching the defendant’s property in the Philippines. The court should order the joinder of such party and non compliance with the said order would be a ground to the dismissal of the action (Feria. Subject matter of the controversy is one of common or GENERAL INTEREST to many persons. The representative sues or defends for the benefit of all. i. There is a defendant 2. Alternative Defendants Where the plaintiff is uncertain against who of several persons he is entitled to relief. (This is an instance when a person may intervene as a matter of right. Section 12. and 3. The persons are so NUMEROUS that it is impracticable to join them all as parties. Identifying description may be used. Class suit CLASS SUIT An action where one or more may sue for the benefit of all. NOTE: Service of summons upon a defendant whose identify is unknown may be made by publication in a newspaper of general circulation in accordance with Section 14of Rule 14. Objections to misjoinder cannot be raised for the first time on appeal. 4. the moment such defect becomes apparent. His identity or name is unknown. REQUISITES OF A CLASS SUIT: 1. are needed to see this picture. and 6..) CLASS SUIT There is one single action pertaining to numerous persons. implying that if the parties are numerous and it is impracticable to bring them to court. Section 13. Amendment to the pleading when identify of true name is discovered. although a right to relief against one may be inconsistent with a right to relief against the other. devisee. 2. PERMISSIVE JOINDER OF PARTIES There are multiple causes of action separately belonging to several perons. or upon the Page 8 of 289 . and 3. Defendant is the defendant being sued. There are two or more persons not organized as a juridical entity. one or more may sue for their benefit. Entity without juridical personality as defendant REQUISITES: 1. Parties bringing the class suit are SUFFICIENTLY NUMEROUS AND REPRESENTATIVE of the class and can fully QuickTime™ protect the TIFF (Uncompressed)alland a interests of decompressor concerned. Misjoinder and non-joinder of parties Neither misjoinder nor non-joinder of parties is a ground for dismissal of the action NOTE: Objections to defects in parties should be made at the earliest opportunity. but they cannot sue under such name. NOTE: An action does not become a class suit merely because it is designated as such in the pleadings. The non joinder of an indispensable or a necessary party is not by itself ipso facto a ground for the dismissal of the action.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 If the consent of any party who should be joined as plaintiff can not be obtained.

the heirs will be substituted for the deceased OR if no legal representative is named then the court will order the opposing party to procure the appointment of an executor or administrator for the estate of the deceased. the there is a SUBSTANTIAL NEED for continuing or maintaining the action. DEBT. Recover for an injury to person or property by reason of tort or delict committed by the deceased. The claim. within 30 days after the successor takes office. duty of counsel This provision applies where the claim is NOT thereby extinguished as in cases involving property and property rights such as: 1. Public officer is a PARTY TO AN ACTION in his official capacity. The ORDER OF SUBSTITUTION shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party. However. That the successor ADOPTS ORCONTINUES OR THREATENS TO ADOPT OR CONTINUE QuickTime™ and a TIFF (Uncompressed) decompressor the action of are needed to see this picture. in which case. AROSE FROM CONTRACT. Section 17. Death or separation of a party who is a public officer REQUISITES: 1. D. Section 18. It is satisfactorily shown to the court by any party. Transfer of Interest NOTE: The transfer of interest that is obviously referred to in this section is a transfer that occurs during the pendency of the action. he either DIES.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 person in charge of the office or place of business maintained under such name (Sec. The deceased shall be substituted by his legal representatives in the manner provided for in Section 16 of Rule 3 and the action continues until the entry of final judgment. Defendant dies BEFORE THE ENTRY OF FINAL JUDGMENT in the court in which the action was pending NOTE: Under this section. OR OTHERWISE CEASES to hold office. the death of the defendant will not result in the dismissal of the action. the action survives and may be continued by against the incompetent incapacitated assisted by his legal guardian or guardian ad litem who is his legal representative. During the pendency of the action. INSTANCES WHERE SUBSTITUTION OF PARTIES IS PROPER: A. Rule 14). In this case. Incompetency or Incapacity In case a party becomes incompetent or incapacitated. In case of minor heirs. 2. the remaining plaintiffs can processed with their own cause of action. The transferor would no longer be the real party in interest if the transfer is made before the commencement of the suit. The action must primarily be for RECOVERY OF MONEY. 8. Death of party. execution shall not issue in favor of the winning party. The case will be dismissed if the interest of plaintiff is transferred to defendant UNLESS there are several plaintiffs. 2. The substitute defendant need not be summoned. GENERAL RULE: The rule does not consider the transferee an indispensable party. Enforcement of client on such properties and. RESIGNS. Action on contractual money claims REQUISITES 1. Recovery of real and personal property against the estate. The party or officer affected has been given REASONABLE NOTICE of the application therefore and accorded an opportunity to be heard. and his predecessor. 4. express or implied. the court may appoint a guardian ad litem for them. Hence. Page 9 of 289 . Section 20. the action may proceed without the need to implead him. subject of the action. Section 21. It should be filed as a claim against the estate of the decedent without need of proving the claim. 3. EXCEPTION: When the substitution by or joinder of the transferee is ordered by court. OR INTEREST thereon. 2. C. Indigent party B. and 3. 5. Section 16. 3. Section 19.

Section 3. or 2. If case involves two properties located in two different places: 1. Cannot be the subject of the agreement of the parties. Polytrade Corp. The rule on VENUE IS NOT APPLICABLE in cases: 1. Jurisdiction over the subject matter over the nature of the action is conferred by law and cannot be waived. Section 22. The parties have validly agreed in writing before the filing of the action in the exclusive venue thereof (Section 4). Where the plaintiff or any of the principal plaintiffs resides. 2. May be changed by the written agreement of the parties.e. An exemption from the payment of transcript of stenographic notes. NOTE: ALL AT THE ELECTION OF THE PLAINTIFF. Venue of real actions The venue is the place where the real property or any portion thereof is located. and 3. VENUE OF PERSONAL ACTIONS: 1. or 3. or 4. Executed by the parties before the filing of the action. Voluntary submission to the court where the case is filed. 2. or physical habitation of a person. meaning the personal. Affirmative relief sought in the court where the case is filed. such authority shall include: 1. Were the defendant or any of the principal defendants resides. Court of Appeals 166 SCRA 50 (1988) RESIDENCE –should be viewed or understood in its popular sense. An exemption from the payment of docket fees. QuickTime™ and a REQUISITES FOR VENUE TO BE EXCLUSIVE: 1. In the case of a non-resident defendant. He need not be a pauper to entitle him to litigate in forma pauperis While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing. A valid written agreement. Means of waiving venue: 1. VENUE Place where the action is instituted. 3. Exclusive nature of the venue. actual residence or place of abode. Section 2. an action for damages arising from libel). Maybe waived JURISDICTION Power of the court to hear and decide a case. Substantive. Notice to the Solicitor General In the absence of qualifying or restrictive words. and basic necessities. Venue of personal actions Raymond v. Procedural. 2. Laches. the action may be brought in the place where he may be found. it may be contested by the adverse party at any time before judgment is rendered. file it in any of the two places. shelter. venue stipulation is merely permissive meaning that the stipulated venue is in addition to the venue provided for in the rules. separate actions should be filed in each place unless property joined. v. 2. if the properties are the object of the same transaction. Examples of qualifying or restrictive words: ‘’Only’’ ‘’Solely’’ ‘’Exclusively in this court’’ Section 1. If they are the subjects of two distinct transactions. Page 10 of 289 . Venue of actions against non-residents RULE 4 VENUE OF ACTIONS VENUE – the place trial or geographical location in which an action or proceeding should be brought. actual. Where a specific rule or law provides otherwise (i. 2. If property is located at the boundaries of two places: File case in either place at the option of the plaintiff. Failure to object via motion to dismiss. Banco 30 SCRA 187 (1969) TIFF (Uncompressed) decompressor are needed to see this picture. If one is authorized to litigate as an indigent.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Indigent – one who has no money or property sufficient and available for food.

An exception is provided in Section 4 of the Rule on summary Procedure. except: 1. If sole defendant fails to appear. Section 4. for personal actions – where the plaintiff resides. Personal status of plaintiff – venue: where plaintiff resides. Any property of said defendant located in the Philippines – venue: where the property or any portion thereof is situated or found. and b.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. NON-RESIDENT NOT FOUND IN THE PHILIPPINES – An action may be filed only when the case involves: a. 2. When Rule not applicable Preliminary conference within 30 days after last answer is filed RULES ON SUMMARY PROCEDURE SUMMARY PROCEDURE IN CIVIL CASES Filing of verified complaint with the MTC Court may summon the defendant Court may dismiss the case outright Within 10 days from receipt of summons defendant answers incorporating compulsory counterclaims or crossclaim & serves a copy on plaintiff If Defendant fails to answer in 10 days—the court motu propio or on plaintiffs own motion. complaint may be dismissed. All crossclaim dismissed RULE 5 UNIFORM PROCEDURE IN TRIAL COURT Section 1. Defendant entitle to decision based on his counterclaim. The Supreme Court has the power to order a change of venue to prevent miscarriage of justice. for real actions – where the property is located. where a particular provision expressly or impliedly applies only to either of said courts or. in civil cases governed by the Rule on Summary Procedure Section 2. plaintiff entitled to judgment based on complaint and what is proved therein Within 5 days after conference. (). NON-RESIDENT FOUND IN THE PHILIPPINESa. 2. b. Dacoycoy v. IAC 195 SCRA 641 (1991) The Court may not motu proprio dismiss a complaint on the ground of improper venue. may render judgment based on facts alleged in the complaint without prejudice to RULE 9 Sec 3 (c) Answer to counterclaim and crossclaim within 10 days If plaintiff fails to appear n preliminary conference. Meaning of terms QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. Uniform Procedure The procedure in the MTC shall be the dame as in the RTC. court issues record of preliminary conference Within 10 days from receipt of order submission by the parties of affidavits and position papers Rendition of judgment within 30 days from receipt of last affidavit or within 15 days after last clarificatory paper Page 11 of 289 .

3. 7.00. and 2. Disputes involving parties who actually reside in barangays of different cities or municipalities. 3. All that is required is that within (10) days from receipt by the parties of the court’s pre-trial order. including ejectment cases. Petition for relief from judgment. 6. 4. The filing of a prohibited pleading will not suspend the period to file an answer or to appeal Heirs of Olivas v. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5. Offenses where there is no private offended party (i. the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon. There has been CONFRONTATION BETWEEN THE PARTIES before the lupon chairman or pangkat. its filing after the answer had already been submitted does not constitute a pleading prohibited by the summary rules. Interventions. the plaintiff may nevertheless file a motion to render judgment as may be warranted when the defendant fails to file an answer. Petition for certiorari. Dilatory motions for postponement. are IMMEDIATELY EXECUTORY. they shall submit: 1. 5. Where one party is the government or any subdivision or instrumentality thereof. 8. 7. 11. motu proprio refer the case concerned to the lupon for amicable settlement. The affidavits of their witnesses. Flor 161 SCRA 393 (1988) Although a motion to dismiss is a prohibited pleading. 12. Where one party is a public officer or employee. Other evidence on the factual issues set forth in the pre-trial order. Judgments of inferior courts in cases governed by summary procedure are applicable to the RTC. 5. 2. 10. KATARUNGANG PAMBARANGAY LAW (Title One. 2.e.000. 4. Such other classes of disputes which the President may determine in the interest of justice. Motion for a new trial or for reconsideration of a judgment or for reopening of trial. or prohibition against any interlocutory order issued by the court. NOTE: While a motion to declare the defendant in default is prohibited by the rules on summary procedure. and b. genocide).Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 their position papers setting forth the law and the facts relied upon by them. Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter or failure to comply with prior barangay conciliation (referral to the Lupon). at any time before trial. Memorandum. Motion to declare defendant in default. The decision of the RTC (on appeal) in civil cases under this rule. Reply. action. Third party complaints. mandamus. non criminal cases Page 12 of 289 . That no conciliation or settlement has been reached OR unless the settlement has been repudiated by the parties thereto. together with TIFF (Uncompressed) decompressor are needed to see this picture. The issuance of the pre-trial order is an important part of the summary procedure because it is its receipt by the parties that begins the ten0day period to submit the affidavitsQuickTime™ and a evidence. EXCEPT: a. or proceeding involving any matter within the authority of the lupon shall be fired or instituted directly in court or any other government office for adjudication UNLESS 1. and 2. Book III. or any other paper. Motion for extension of time to file pleadings. and the disputer relates to the performance of his official functions. 9. 8. Where the dispute involves real properties located indifferent cities or municipalities UNLESS the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon. and other TRIAL PROCEDURE IN CIVIL CASES No testimonial evidence is required nor cross examination of witnesses allowed. RA 7160) No complaint petition. 6. The court may. affidavits. Motion for a bill of particulars. PROHIBITED PLEADINGS / MOTIONS UNDER THE RULE ON SUMMARY PROCEDURE 1. What the rules proscribe is a motion to dismiss that would stop the running of the period to file an answer and cause undue delay. CASES NOT COVERED BY THE KATARUNGANG PAMBARANGAY LAW (SUBSTANTIVE EXCEPTIONS): 1. where such barangay units adjoin each other.

May be filed even after judgment. conciliation.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 not falling within the authority of the latter. 4. The settlement and arbitration agreement may be repudiated on the ground that consent is vitiated by fraud. Disputes involving the TRADITIONS of indigenous cultural community. Section 2. 158 SCRA 459) The parties may at any stage of the proceeding AGREE IN WRITING to have the matter in dispute DECIDED by ARBITRATION either the LUPONG BARANGAT or PANGKAT. delivery of personal property. THE PARTIES MAY GO DIRECTLY TO COURT IN THE FOLLOWING INSTANCES (PROCEDURAL EXCEPTIONS): 1. Tupac. Pleadings defined PLEADINGS – the written statements of the respective claims and defenses of the parties submitted to the court for appropriated judgment. Escayo 171 SCRA 442)). 5. and support pendente lite. Where one of the parties is a juridical entity. and 9. 3. there are motions that actually seek judgment like a motion for judgment on pleadings (Rule34) and motion for summary judgment (Rule 35). 6. Such interruption shall not exceed 60 days from the time of the filing of the complaint with the punong barangay. 3. Pleadings allowed 1. CARL disputes. Actions to ANNUL JUDGMENT upon a compromise (Sanchez v. 4. 7. Complaint. Counterclaim. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint in court or any government office for adjudication. Where the person has otherwise been deprived of personal liberty calling for HABEAS CORPUS proceeding. Many kinds of motion are allowed. Page 13 of 289 . 2. May be initiatory Always filed before judgment Only 9 kinds of pleading are allowed by the rules MOTION The purpose is to apply for an order not included in the judgment. PROCEDURE IN REGIONAL TRIAL COURTS RULE 6 KINDS OF PLEADINGS Section 1. Disputes between residents of the same barangay shall be brought for settlement before lupon of said barangay. 2. In such case arbitrational hearings shall follow order of adjudicative trials. NOTE: A motion to dismiss is not pleading. Disputes arising at the WORKPLACE where the contending parties are employed or at the INSTITUTION where such parties are enrolled for study – in the barangay where such workplace or institution located. PLEADING The purpose is to submit a claim or defense for appropriate judgment. Any CLASS OF DISPUTE which the President may determine in the interest of justice or upon recommendation of the secretary of Justice. Residents of different barangays within the same city or municipality – in the barangay where the respondent or any of the respondents reside at the election of the complainant. Where the ACTIONS are coupled with provisional remedies such as preliminary injunction. or intimidation. attachment. NOTE: HOWEVER. violence. RULES ON VENUE UNDER THE KATARUNGAN PAMBARANAGAY LAW QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. Where the action may otherwise be barred by the STATUTE OF LIMITATIONS. 9. the prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing or the complaint with the punong barangay. Cannot be initiatory as they are always made in a case already filed in court. or arbitration. LABOR Disputes (Montaya v. 2. While the dispute is under mediation. 1. Where the accused is under police CUSTODY or detention. Disputes involving real property or any interest therein – where real property or larger portion thereof is situated. and 8.

General denial. Complaint-in-intervention. For this reason.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. NEGATIVE DEFENSES . 2. Counter-counterclaim. Answer. release payment. Upon its filing. Answer ANSWER – the pleading where the defendant sets forth his affirmative or negative defenses. Page 14 of 289 . ULTIMATE FACTS – essential facts constituting the plaintiff’s cause of action. Section 6. 4. TEST OF SUFFICIENCY OF THE FACTS ALLEGED IN THE COMPLAINT: Determine whether upon the averment of facts. Cross-claim. Section7. statements of law. the excess is considered waived Calo v. 2. 8. Counterclaim COUNTERCLAIM – any claim which a defending party may have against an opposing party. not evidently facts or legal conclusions. It should contain a concise statement of the ultimate facts constituting the plaintiff’s cause of action. Although it may be alleged in the answer. the same proceedings are had as in the original complaint. Insufficient denial or denial amounting to admissions: 1. Evidentiary or immaterial facts. Denial in the form of a negative pregnant. 7. 3. COMPULSORY COUNTERCLAIM One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of PERMISSIVE COUNTERCLAIM It does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim. What are NOT ultimate facts: 1. it must be answered within ten (10) days from service. Enumeration is not exclusive Section 3. Agustin v. Legal conclusions. 2 kinds of defenses that may be set forth in the answer: 1. a valid judgment may be properly rendered. would nevertheless prevent or bar recovery by him. AFFIRMATIVE DEFENSES. both as to the amount and nature thereof. Section 5. or incorrect inferences or conclusions from facts stated. Counter-Cross claim. Third-party Complaint. or 2. 6. Compulsory Counterclaim A counterclaim before the MTC must be within the jurisdiction of said court. It may likewise be the response to a counterclaim on a cross claim. the counterclaim may be considered compulsory regardless of the amount (Section 7. Complaint COMPLAINT – is the pleading alleging the plaintiff’s cause or causes of action. Nature of counterclaim: A counterclaim is in the nature of a cross-complaint. Section 4. Rule 6). The details of probative matter or particulars of evidence. 5. inferences and arguments. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. Reply. prescription. Affirmative defenses include fraud. Ajax International 22 SCRA 996 (1968) The remedy where a counterclaim is beyond the jurisdiction of the MTC is to set off the claims and file a separate action to collect the balance. Counterclaims may either be: 1. 4. and any other matter by way of confession and avoidance. conclusions or inferences of facts not stated. An allegation that a contract is valid or void is a mere conclusion of law. while hypothetically admitting the material allegations in the pleading of the claimant. 2. 9. Bacalan 135 SCRA 340 (1985) If a counterclaim is filed in the MTC in excess of its jurisdictional amount. it is not part of the answer.specific denial of the material facts or facts alleged in the pleading of the claimant essential to his cause of action. Defenses QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. Permissive NOTE: In an original action before the RTC. Compulsory.allegation of anew matter which.

it is barred except: 1. but if he opts to set up his counterclaim. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. 3. A claim by one party against a co-party. to be no 1. 2. it is outside the jurisdiction of the court. in which case it is called a permissive counterclaim. but not a cross-claim seeking an affirmative relief. Must be answered. 3rd party Complaint Against a person not a party to the action. It is NOT barred even if not set up in the action. or 2. otherwise. it may be pleaded by filing a supplemental answer or pleading before judgment. It is barred it not set up in the action. Gojo v. the transaction or occurrence that is the subject matter of the opposing party’s claim. must choose only the needed to see decompressor are same time. In which case. It must arise out of the subject matter of the complaint or of the counterclaim. Must be in respect of the opponent’s claim (Plaintiff). It must arise out of. Goyola 35 SCRA 557 (1970) A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default . The cross-claimant is prejudiced by the claim against him by the opposing party. or be necessarily connected with. In this case. he on remedy. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Counter-counterclaims and counter cross-claims Counter-Counterclaims – is a claim asserted against an original counterclaimant Counter-Crossclaims – is a claim filed against an original cross-claimant. If it is not set up in the action. Cross-claim REQUIREMENTS FOR A CROSS-CLAIM: Section 9. It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. If the court cannot acquire jurisdiction over third parties whose presence is necessary for the adjudication of said cross-claim.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 the opposing party’s claim. Section 10. default. Reply Page 15 of 289 . it is called a compulsory counterclaim. the defendant can be declared in default. Rule 11) NOTE: the filing of a motion to dismiss and the setting up of a compulsory counterclaim are incompatible remedies. The dismissal f the complaint carries with it the dismissal of a cross-claim which is purely defensive. It must be within the jurisdiction of the court. May arise out of or be necessarily connected with the transaction or that is the subject matter of the opposing party’s claim in which case. In the event that a defending party has around forQuickTime™ and a and a compulsory dismissal counterclaim at TIFF (Uncompressed) this picture. and 3. principally because the issued raised in the counterclaim are deemed automatically joined by the allegations of the complaint. 2. he may so plead his ground for dismissal as an affirmative defense in his answer. When. he will lose his counterclaim. Need not answered. the cross-claim is considered permissive. (Section 9. Section 8. or it may not. GENERAL RULE: A compulsory counterclaim not set up in the answer is deemed barred. EXCEPTION: If it is a counterclaim which either matured or was acquired by party after serving his answer. Cross Claim Against a coparty Must arise out of the transaction that is the subject matter of the original action or of a counterclaim therein Counterclaim Against an opposing party. If he decide to file must a motion dismiss . REQUISITES OF A COMPULSORY COUNTER CLAIM: 1.

then the other necessary parties may be brought in under this section. Its designation. RULE 7 PARTS OF A PLEADING Section 1. 2. The date of the pleading Section 3. indemnity. etc. The title of the action. Page 16 of 289 TESTS to determine whether the third-party complaint is in respect of plaintiff’s claim: 1. THIRD-PARTY COMPLAINT Brings into the action a third person who was not originally a party. Where the trial court has jurisdiction over the main case. Third (fourth. Bringing New Parties Distinguish from a 3rd party complaint: A 3rd party complaint is proper when not one of the third party defendants therein is a party to the main action. fourth etc-party defendant must be served for the court to obtain jurisdiction over his person. There could also be a fourth. COMPLAINT IN INTERVENTION Same. Central Surety & Insurance 25 SCRA 641 (1968) . EXCEPTION: Reply is required Where the answer is based on an ACTIONABLE DOCUMENT (Sec. and QuickTime™ and a TIFF (Uncompressed) decompressor 3.). Whether it arises out of the same transaction on which the plaintiff’s claim is based. 8. and 3.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 REPLY – the response of the plaintiff to the defendant’s answer the function of which is to deny or allege facts in denial or in avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. etc. subrogation or any other relief. . Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff’s claim against the original defendant. That to the best of his knowledge. third party defendant may assert any defenses which the third-party plaintiff has or may have to plaintiff’s claim Summons on third. The relief prayed for: and 4. with leave of court. since he is not an original party. the court may. 2. information or belief. The Body PARTS OF A PLEADING The Caption contains the following: 1. in its discretion. Initiative is with a nonparty who seeks to join the action. NOTE: An UNSIGNED PLEADING produces no legal effect. NOTE: A third party complaint is no proper in an action for declaratory relief. The name of the court. The docket number if assigned. However. EFFECT OF FAILURE TO REPLY GENERAL RULE: Filing a reply is merely optional. or although arising out of another or different transaction. there is good ground to support it. and 3. Rule 8. That he has read the pleading. allow such deficiency to be remedied if it shall appear that the same was due to inadvertence and not intended for delay. 2. The allegation of the party’s claims and defenses. It is not interposed for delay.party complaint THIRD – PARTY COMPLAINT – a claim that a defending party may.) Section 11. Caption Section 2. Signature and address The signature of the counsel is a certification: 1. The Body sets forth: 1. is connected with the plaintiff’s claim. in respect of his opponent’s claim.party complaint with the same purpose and function. Whether theare needed to see this picture. Initiative is with the person already a party to the action. Section 12. 3. New facts that were alleged in the answer are deemed controverted should a party fail o reply thereto. 2. regardless of the amount involved as a third party complaint is merely auxiliary to and is a continuation of the man action. Republic v. file against a person not a party to the action for contribution. If one or more of the defendants in a counterclaim or cross-claim is already a party to the action. it also has jurisdiction over the third party complaint.

Deliberately signing a pleading in violation of the Rules. Without prejudice to the filing administrative and criminal actions of EFFECT OF WILLFUL AND DELIBERATE FORUM SHOPPING: 1. omitting the statement of mere evidentiary facts. yet the plaintiff is so imperfectly informed that he can’t state them with certainty Plaintiff should state the DEFENDANT Defendant may state hypothetical allegations (affirmative defense) Defendant may also Page 17 of 289 . cite the pertinent legal provisions thereof. (b) rights or causes of action. Section 5. and not by counsel. and 2. to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same relief. cross-claim. Certification against forum-shopping FORUM SHOPPING – consists of filing multiple suits in different courts. etc. as well as its applicability to him Section 2. or 4. RULE 8 MANNER OF MAKING ALLEGATIONS IN A PLEADING Section 1. Test to determine the presence of forumshopping: Whether in the two (or more) cases pending. 3. concise and direct statement of the ultimate facts. involving the same parties. Required ONLY for complaints or initiatory pleadings such as permissive counterclaim. Section 4. UST Hospital v. Indirect Contempt 2. Verification Pleadings need NOT be verified EXCEPT when otherwise provided by the law or rules. A counterclaim is not an initiatory pleading EFFECT OF FAILURE TO COMPLY: Not curable by mere amendment of the pleading but shall be cause for dismissal of the case. Direct contempt. 2. If the ultimate facts are NOT alleged. Alternative causes of action or defense PLAINTIFFS Alternative allegations – cases where the facts essential to the plaintiff’s cause are within the knowledge of the defendant. Alleging scandalous or indecent matter in the pleading. 2. The certificate is to be executed by petitioner. ULTIMATE FACTS – those which directly form the bases of the right sought to be enforced or the defense relied upon. Surla 294 SCRA 382 (1998) Certificate of non-forum shopping is not required in a compulsory counterclaim.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 DISCIPLINARY ACTION ON COUNSEL IN THE FOLLOWING CASES: 1. either simultaneously or successively. HOW A PLEADING IS VERIFIED By an affidavit that the affiant: 1. unless otherwise provided upon motion and after hearing EFFECT OF SUMBISSION FO FALSE CERTIFICATION OR NON-COMPLIANCE WITH THE UNDERTAKINGS THEREIN: QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. without prejudice. omitting statement of mere evidentiary facts If defense relied is based on law. the cause of action would be insufficient. EVIDENTIARY FACTS – those which are necessary to prove the ultimate fact or which furnish evidence of the existence of some other facts. and (c) relief sought. Has read the pleading. COMPLAINT Filed by plaintiff ANSWER Filed by defendant Must contain a direct statement of the ultimate facts. Shall be ground for summary dismissal of the case with prejudice. there is identity of (a) parties. 1. as well as a cause for administrative sanctions. Failing to promptly report a change of his address. In general Every pleading shall contain in a methodical and logical form a plain. That the allegations therein are true and correct of his personal knowledge or based on authentic documents. Deliberately filing an unsigned pleading.

4. otherwise. Capacity to sue or be sued in a representative capacity. compliance with conciliation process at the barangay level. failure to compromise. Judgments of domestic or foreign courts. -Example of what must be pleaded: -that a foreign corporation (generally not allowed to sue. condition of the mind Fraud or mistake must be stated with particularity while malice or intent must be averred generally. are merely conclusions of law. (BUT there must still be an allegation that the specific condition precedent has been complied with. it is sufficient to aver the decision or judgment without setting forth matter showing jurisdiction to render it. Section 4. he should file a motion to dismiss on that ground or set it up as affirmative defense in the answer Page 18 of 289 . he should question the jurisdiction of the court over his person Section 5. or officers. NOTE: Compliance with conciliation process is a condition precedent but not a jurisdictional requirement.e. be they compatible with each other or not plead as many defenses and counterclaims he may have -on the other hand. tribunals. knowledge. Conditions Precedent Pleading must state conditions precedent to the cause of action. it may still be a ground for dismissal on reason of non-compliance with condition precedent. boards. the court may simply dismiss the complaint. Failure to state the conditions precedent will make the complaint defective and vulnerable to dismissal. Legal existence of an organization. or other condition of the mind. and are without statement of the facts to which such terms have reference. 5. Section 7. intent. If after the granting the motion for bill of particulars. i. but to plead in alternative the doubtful facts which are wholly within the defendant’s knowledge and call upon the defendant to make full disclosure of these facts Plaintiff may state alternative causes of action. but can be sued) has license to do business in the and a country or is not doing QuickTime™ TIFF (Uncompressed) decompressor business are neededcountry in the to see this picture. however. even on appeal. (no need to show jurisdiction) 7. etc. Judgment The jurisdiction of the court a quo is presumed. if the defendant wants to raise an issue of his legal capacity to be sued. Capacity Facts showing the capacity to sue and be sued must be averred. Fraud.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 facts within his knowledge with certainty. NOTE: a party desiring to raise an issue as to the legal existence or capacity of any party to sue or be sued in a representative capacity shall do so by SPECIFIC DENIAL which shall include supporting particulars within the pleader’s knowledge. Malice. -foreign corporation must also aver its capacity to sue or be sued -Example of what the defendant must plead: -if the defendant wants to raise an issue as to the plaintiff’s legal capacity to sue. the plaintiff still refuses to do so. IN SUMMARY: FACTS THAT MAY BE AVERRED GENERALLY: 1. it will be dismissed for lack of cause of action) 2. FACTS THAT MUST BE AVERRED PARTICULARLY: Circumstances showing fraud or mistake in all averments of fraud or mistake. Action or defense based on document Section 3. on ground of lack of cause of action. Official document or act. Section 6. A party desiring to raise the issue of lack of capacity to sue must do so by specific denial. mistake. 6. Inconsistency does not operate as waiver or withdraw of defense in another portion of his answer It is sufficient that each is consistent with itself The defendant may move for a bill of particulars when the allegations of fraud. Capacity to sue or be sued. 3. Conditions precedent.

By setting forth what is claimed to be the facts. that if signed by somebody else such representative had the authority to do so. counterfeit. Unauthorized signature. as in the case of an agent signing for his principal. Central Surety v. When the adverse party was not a party to the instrument. 9.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Applies to a cause of action or defense that relies on written document. do not put evidence yet. 5. Fraud. BUT the following defenses are waived: 1. it was in words and figures exactly as set out in the pleadings. By specific denial under oath. Payment. When compliance with an order for an inspection was refused. Estopped. present the substance of the document in the pleading 2. Hodges 38 SCRA 159 (1971) Failure to specifically deny under oath the genuineness and due execution of an actionable document generally implies an admission of the same by the other party. By setting forth said document verbatim in the pleading. attach an original or copy of the document as an exhibit 3. Duress. mail) they have no place in a pleading A non-actionable document is some other extraneous document which is not the main object of the action. and that the formalities were complied. Two permissible ways of pleading an actionable document: 1. but. EXCEPT than an oath is not required: a. Promissory note. At the time the document was signed. ex. GENUINENESS means nothing more than that the instrument is not spurious. However. ex. deed of mortgage. What to do? 1. 2. OR b. execution of said document. 2. or 2. and 2. 3. it was not in words and figures exactly as set out in the pleading. How to contest such document HOW TO CONTEST AN ACTIONABLE DOCUMENT: 1. 7. DUE EXECUTION mean that the document was signed voluntarily and knowingly by the party whose signature appears thereon. QuickTime™ and a 1. Forgery in the signature. or of different import on its face from the one executed by the party or that the party whose signature it hears has signed it and that at the time it was signed. even if in writing (ex letters. Defenses not waived despite specifically deny under oath: 1. Statute of Limitations. The admission of thedecompressor genuineness and due TIFF (Uncompressed) are needed to see this picture. Want of delivery. Section 8. such IMPLIED ADMISSION IS DEEMED WAIVED if the party asserting the same has allowed the adverse party to present evidence contrary to the contents of such document without objection Section 9 Official document or act Section 10 Specific Denial Page 19 of 289 . Mistake. 2. the failure to specifically deny under oath the same results in. 8. that it was duly delivered. Where the actionable document is properly alleged. Want or illegality of consideration. 3. Minority or imbecility failure to The aforementioned defenses are not inconsistent with the genuineness and due execution of the document. or 5. in case of variance in the substance of the document set forth in the pleading and in the document attached). 6. Demand letter An actionable document is the main object of the action. By setting forth the substance of such document in the pleading and attaching said document thereto as an exhibit (contents of the document annexed are controlling. 4. Compromise. The corporation was not authorized under its charter to sign the instrument. written contract ACTIONABLE DOCUMENT – written instrument upon which the action or defense is based. The document need not be formally offered in evidence. 4.

Final .appealable EXCEPTIONS: 1. Allegations immaterial as to the cause of action. 2. RULE 9 EFFECT OF FAILURE TO PLEAD Section 1. 2. REQUISITES FOR A DECLARATION OF DEFAULT: 1. Defenses and objections not pleaded GENERAL RULE: Defenses and objections not raised in MOTION TODISMISS or in the ANSWER are deemed waived. Conclusion of law. It is not his failure to appear nor failure to present evidence. and 4. 3. By specifically denying the averment and. and 3. Default. plaintiff’s evidence. Part admission and part denial. NOT specifically EXCEPTIONS: 1. Allegation not specifically denied deemed admitted GENERAL RULE: allegations denied are deemed admitted. Lack of jurisdiction over the subject matter Litis pendentia. Tijam v. whenever practicable. There must be PROOF of such failure to answer. on plaintiff’s motion for failure of the defendant to failure his responsive pleading seasonably.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 THREE WAYS OF MAKING A SPECIFIC DENIAL: 1. These defenses may be raised at any stage of the proceedings even for the first time on appeal EXCEPT that lack of jurisdiction over the subject matter may be barred by laches. so plain and necessarily within the defendant’s knowledge that his averment of ignorance must be palpable untrue. 2. or excusable neglect. to the knowledge of the court. Res Judicata Prescription of the action. declaration of DEFAULT – the failure of the defendant to answer within the proper period. Allegations as to he amount of unliquidated damages. Compulsory Counterclaim. 4. NEGATIVE PREGNANT – a form of denial which at the same time involves an affirmative implication favorable to the opposing party. 3. Section 3. ORDER OF DEFAULT Issued by the court. WHERE NO DEFAULTS ARE ALLOWED: Page 20 of 289 . By an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party’s pleading. Section 11. and 3. There must be NOTICE to the defendant by serving upon him a copy of such motion. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. Section 2. There must be a MOTION to declare the defendant in default. Sibonghanoy 23 SCRA 29 (1968) The court shall dismiss the claim if any of these grounds appears from the pleadings or the evidence on record. NOTE: this does not apply where the fact as to which want of knowledge is asserted is. but due to oversight. it was not set up. an admission of the averment to pregnant with an admission of the substantial facts in the pleading responded to. Striking out of pleading or matter contained therein Allegations of merely evidentiary or immaterial facts may be expunged from the pleading or may be stricken out on motion. Section12. 2. Defendant FAILS TO ANSWER within the time allowed therefore. inadvertence. ex parte. Interlocutorynot appealable JUDGMENT BY DEFAULT Rendered by the court following a default order or after it received. A SUPPLEMENTAL ANSWER is proper if the counterclaim or cross-clam matures or is acquired after the answer is filed. or Crossclaim not set-up barred An AMENDED ANSWER is proper if the counterclaim or cross claim already existed at the time the original answer was filed. it is in effect. setting forth the substance of the matters relied upon for such denial.

Adding an allegation of a party. Subsequent proceedings. A responsive pleading had already been served. AND 2. As such. Declaration of nullity of marriage. and 4. NOTE: a motion to dismiss is not a responsive pleading. Amendments by leave of court Leave of court is required: 1. If the defendant was declared in default upon an original complaint. Motion to declare him in default. Some of the defending parties answer and the others fall to do so. within 10 days after it was SERVED. Correcting a mistake or inadequate allegation or description in any other respect. Legal Separation. prohibition and mandamus where comment instead of an answer is required to be filed 5. 2. Florendo 154 SCRA 610 (1987) A defendant declared in default cannot take part in the trial. Service of final orders and judgments Cavili v. Correcting a mistake in the name of a party. RULE 10 AMENDED AND SUPPLEMENTAL Section 1. Summary procedure EFFECT OF AN ORDER OF DEFAULT: entitled to notice of 1. Notice to the adverse party. 2. Amendments as a matter of right Amendment is a matter of right before a responsive pleading is SERVED. 3. hence the defendant was entitled to file the answer to the amended complaint as to which he was not in default. and 6. in which case. The answer interposes a common defense. but he cannot be disqualified from testifying as a witness in favor of non-defaulting defendants. Amendments in general Pleadings may be amended: 1. Subsequent amendments should be made only by leave of court even if the other party has not yet served a responsive pleading. and 3. 4. 2. Hence. There must be a motion filed in court. 3. Adding the name of a party. it will not benefit those who did not answer. 2. Order declaring him in default. Annulment of marriage. and 5. 3. Special civil actions of certiorari. EFFECT OF PARTIAL DEFAULT: The court will try the case against ALL defendants upon the answer of some EXCEPT where the defense is personal to the one who answered. Section 2. or in case of a REPLY. The default asserting a claim states a common cause of action against several defending parties. PARTIAL DEFAULT: 1. reconsideration at any time are needed after service of judgment by default and within 15/30 days therefrom QuickTime™ and a Failure to appeal without defendants fault Petition for relief from judgment within 60 days from notice of the judgment but within 6 months from entry thereof Annulment of Judgment under RULE 47 EXTENT OF RELIEF TO BE AWARDED IN A JUDGMENT B DEFAULT: Shall not exceed the amount OR be different in kind from that prayed for NOR award unliquidated damages. If the amendment is substantial. the filing of the amended complaint resulted in the withdrawal of the original complaint. Correcting a mistake in the name of a party. REMEDIES FROM JUDGMENT BY DEFAULT Judgment by default TIFF (Uncompressed) decompressor Motion for new trial or to see this picture. 4. Requisites: 1. and Failure to file a motion for new trial/ denial of said motion Perfect appeal from said judgment by default within the balance of said 15/30 day period Page 21 of 289 .Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. it may be done without leave of court. 2. Such rights can only be exercised ONCE. Section 3. Striking out the name of a party. an amendment AFTER the denial of a motion to dismiss is still considered as a matter of right.

Pleadings may be amended to conform to the evidence. NOTE: Admission in a superseded pleading is an EXTRAJUDICAL ADMISSION and may be proved by the party relying thereon by formal offer in evidence. Within 15 days after service of summons. a. Amendment to cure a premature or non-existing cause of action. p. Admissions in the superseded pleading can still be received in evidence against the pleader. 3. When cause of action. UNLESS a different period is fixed by the court. b. 2. and 4. entire pleading. occurrences. Instances when amendment by leave of court may not be allowed: 1. 2. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived. Section 7. or events which have happened since the date of the filing of the complaint. Amendment to conform to or authorize presentation of evidence When issues NOT RAISED in the pleadings are tried with the express implied consent of parties 1. 2002. (Regalado. An amended pleadings supersedes the pleading that it amends. NOTE: Some authors are of the opinion that admissions in superseded pleadings need not be offered in evidence pursuant to Section 4 of Rule 129. Take the place of the Taken together with the original pleading. Opportunity to be heard afforded to the adverse party.193) RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS Section 1. and 3. 2. Can be made as a matter Always with leave of QuickTime™ and a TIFF (Uncompressed) court decompres of right as when nosee this picture. defense or theory of the case is changed. 2.within 15 days after service of summons to him. 3.sor are needed to responsive pleading has yet been filed. Section 6. 3. EFFECT OF AMENDED PLEADING 1. original pleading. Formal Amendments Section 5. They shall be treated as if raised in the pleading. Answer of a defendant foreign private juridical entity Answer to a complaint 1. Amendment for purposes of delay. but it has an agent or officer in the Philippines – within 15 days after service of summons to said agent or officer. In case the defendant is a foreign private juridical entity. In case of service of summons by publication – within the time specified in the order granting leave to serve summons by Refers to facts existing at the time of the commencement of the action. Answer to the complaint Section 2. if it has a resident agent. Supplemental pleadings SUPPLEMENTAL PLEADINGS – is one which sets forth transactions. Section 4. c.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. it has no resident agent nor agent nor officer – in which case service of summons is to be made on the proper government office which will then send a copy by registered mail to the home office of the foreign private corporation – within 30 days after receipt of summons by the home office of the foreign private entity. Filing of amended pleadings Page 22 of 289 . anew does not require the filing copy of the entire of a new copy of the pleading must be filed. if it has no resident agent. CA 229 SCRA 627) AMENDED PLEADING SUPPLEMENTAL PLEADING Refers to facts arising after the filing of the original pleading. Amendment is intended to confer jurisdiction to the court. When an amended A supplemental pleading pleading is filed. Failure to amend does not affect the result of the trial of these issues. NOTE: The cause of action stated in the supplemental complaint must be the same as that stated in the court should not admit the supplemental complaint (Asset Privatization Trust v.

and 3. 60 days from service of summons. If the filing of an amended complain is NOT a matter of right—within 10 days counted from notice of the court order admitting the same. to file his answer. NOTE: The rule shall apply to the answer to an amended counterclaim. in case of a non-resident defendant on whom extraterritorial service of summons is made. the period to answer should be at least 60 days. Galeon 60 SCRA 234 (1976) An action cannot be dismissed on the ground that the complaint is vague or indefinite. Leave of court is necessary. The motion for bill of particulars shall be filed before responding to a pleading. and amended complaint-in-intervention) If no new answer is filed. Extension of time to plead REQUISITES: 1. amended third (fourth. the court may fix a different period for QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. Reply A reply may be filed within 10 days from service of the pleading responded to. The defects complained of: 2.)-party complaint The third party defendant is served with summons just like the original defendant. Hence. 2. RULE 12 BILL OF PARTICULARS BILL OF PARTICULARS – a more definite statement of any matter which is not averred with sufficient definiteness or particularity. answering the supplemental complaint in lieu of the10-day reglementary period. 30. Section 11. etc. Answer to counterclaim or cross-claim Section 1. When applied for. Answer to third (fourth. Section 8. Section 15) 4. inadvertence. or excusable neglect or when justice requires may be set up by the pleader BEFORE JUDGMENT. it must be filed within the period granted by the Rules (Rule 11) for the filing of a responsive pleading. as the case may be. Answer to amended pleadings 1. unlike the former. The motion shall point out: 1. Section 3. The paragraphs wherein contained. As in the case of the filing of an amended pleading with leave of court. answer to original pleading shall be deemed as answer to the amended pleading. However. Section 7. PURPOSE: to aid in the preparation of a responsive pleading. The court may extend the time to file the pleadings but may not shorten them.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 publication. Answer to supplemental complaint Answer to a supplemental complaint must be filed within 10 days from notice of the order admitting the same. Galeon v. Section 4. they are Page 23 of 289 . the filing of supplemental complaint requires leave of court. There must be a motion. purpose A counterclaim or cross-claim must be answered within 10 days from service.party complaint. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. On such terms as may be just. Omitted counterclaim or cross-claim Counterclaims or cross-claims omitted through oversight. which shall NOT be less than 60 days after notice (rule 14. he also has 15. Existing counterclaim or cross-claim Section 9. With service of such motion to other party. and 3. In the filing of an amended complaint is a matter of right—within 15 days from service of amended complaint 2. Section 5. The details desired. hence. etc. amended cross-claim. Counterclaim or cross-claim arising after answer Section 10. Section 6..

Compliance with order EFFECTS OF MOTION 1. the court: a. serving a copy thereof on the adverse party. counted from service of the order denying his motion. If the order is not obeyed or in case of insufficient compliance therewith. or b. Section 4. Section 3) Section 5. the movant can wait until the bill of particulars is served on him by the opposing party and then he will have the balance of the reglementary period within which to file his responsive pleading. The bill of particulars may be filed either in a separate or in an amended pleading. 4. If defendant fails to obey. Effect of non-compliance Effect of non-compliance: 1. if the plaintiff fails to obey. defined FILING OF PLEADINGS -Act of presenting the pleading or other paper to the clerk of court a) personally to the clerk of court b) sending them by registered mail SERVICE OF PLEADINGS Act providing a party with a copy of the pleading or paper concerned -judgment.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 2. NOTE: If ether case. Stay of period to file responsive pleading QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. JUDGMENTS AND OTHER PAPERS Note: This rule is not arranged per section but per topic. Action by court The court may either: 1. except: 1) when he has no counsel 2) when counsel of record can’t be located 3) when party himself is directed by court to show cause (ex. 2. his complaint may be dismissed with prejudice UNLESS otherwise ordered by the court. unless service thereof on the party himself was ordered by the court or the technical defect was waived. Deny: or 2. Personal Service. Section4. Section 6. Bill a part of pleading RULE 13 FILING AND SERVICE OF PLEADINGS. Coverage Notice given to a party who is represented by counsel is a nullity. Allow the parties the opportunity to be heard. (Rule 12. make such order as it may deem just. 2. Section 1. Rule 17. Section 2. If the motion is granted. may order the striking out of the pleading or the portion thereof to which the order is directed. (Rule 12. Rule 17. Section3. service of notice on any of the latter is sufficient. Section 3) 3. Sec. Where party is represented by more than one counsel of record. Section 4. If his motion is denied. Contempt) -if represented by 2 counsels. he shall have not less than 5 days to file his responsive pleading. It becomes part of the pleading sought to be clarified. or Page 24 of 289 . Grant it outright: or 3. hi answer will be stricken off and his counterclaim dismissed. Rule 9. he will still have such balance of the reglementary period to file his responsive pleading. Manner of Filing FILING – act of presenting the pleasing or other paper to the clerk of court Manner of filing 1. pleadings and orders are served to counsel. Filing and service. and he will be declared in default upon motion of the plaintiff. in whole or in part. notice may be made either upon both or either of them MODES OF SERVICE a) personally b) mail c) substituted service Section 3.

Service by mail Section 8. a QuickTime™ and TIFF (Uncompressed) d 9. Section 5. Demand.Actual delivery of the processes to him (includes service at the residence or his attorney) Section 7. FINAL ORDERS. Modes of Service SERVICE OF PAPERS SERVICE OF JUDGMENTS. and not through other means of transmission. Personal Service PERSONAL SERVICE. 4. Judgment. 3. 7. Inc. Similar papers Papers subsequent to complaint must be filed with court and served upon parties. Offer of judgment. 5.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. with a person of sufficient age and discretion residing therein Section 6. 6. Benguet Electric Cooperative. PERSONALLY TO THE CLERK OF COURT Clerk of court endorse the date and hour of the filing SENDING THEM BY REGISTERED MAIL Date of mailing shall be considered as the date of filing Registered mail only -reason: government postal service enjoys the presumption of regularity -date of mailing = date of filing Private letter couriers -not recognized because you can’t apply the presumption of regularity to private entity -nevertheless. Substituted Service SUBSTITUTED SERVICE Delivering copy to the clerk of court with proof of failure of both personal and service by mail (different from substituted service under Sec. Order. Pleading subsequent to the complaint. Appearance. with 2) by leaving it instructions of in his office return to with clerk or sender if person undelivered having within 10 days charged thereof 3) leaving it at the residence of either. 10. 2. RESOLUTIONS a) personal service b) registered mail c) publication a) personal service b) registered mail c) ordinary mail Promulgation of decision in criminal cases = reading of judgment Promulgation of decision in civil cases = date when the copy was served on the counsel by registered mail 3 KINDS OF SERVICE: PERSONAL SERVICE BY SERVICE MAIL Depositing Deliver copy in the personally: 1) party or post office. Rule 14) Section 4. to see thiecompressor are needed or s picture. because you must first serve a copy thereof to the plaintiff. 8. Written Motion. This simply means that defendant’s answer can’t be filed at once to the Page 25 of 289 . signed by him –only then can you file an answer with proof of service. NLRC 209 SCRA 55 (1992) If a private carrier is availed of by the party. the date of actual receipt is the one counted clerk of court. Notice. Registered mail Filing by mail should be through the registry service which is made by deposit of the pleading in the post office. service may be done by ordinary mail. Resolution. Papers required to be filed and served 1. Pleadings subsequent to original complaint and written motions should first be served on the parties before they are filed with court. v. If registry service is not available in the locality of either sender or addressee. 7. is deemed to be the date of the filing of that pleading. or counsel residence. the date of actual receipt by the court of such pleading and not the date of delivery to the private carrier.

b. If filed TIFF (Uncompressed) decompressor proved by the by registered mall: are needed to see this picture. containing the date. Page 26 of 289 . Official return of the server. Completeness of Service Service is completed when: Personal Registered service mail Upon actual Upon actual delivery receipt by the addressee or 5 days from the date he received 1st notice from postmaster -1st notice from postmaster needs conclusive proof Ordinary mail Upon expiration of 10 days after mailing SERVICE. 3. at the party’s or counsel’s residence. with a person of sufficient age and discretion then residing therein—if no is person found in his office. Affidavit of the party serving.m.Act of providing a party with a copy of the pleading of paper concerned SUMMARY OF MODES OF SERVICE 1. Final Orders or Resolutions Service by publication = only when he absconds and defendant’s address is unknown Section 10. Priorities in modes of service and filing Personal service is preferred and written explanation is needed why such was not taken Service by registered mail may be done if the distance from the court to the adverse party is considered Section 12. SUBSTITUTED SERVICE (SECTION 8) Delivering the copy to the clerk of court with proof of failure of both personal and service by mail. and Completeness begins the running of the period for filing of the responsive pleadings Section 11. The date and place of depositing the mail in the post office in a sealed envelope addressed to the court. and 6 p. or 3. Delivering personally a copy to the party or his counsel.m. Affidavit of maller showing compliance of Section 7 Rule 13. 2. Written admission of the party served. if known. and c. or if his office is unknown. With instructions to the postmaster to return the mail to the sender after 10 days if undelivered. registry receipt and the affidavit of the person who did the mailing with a full statement of: a. If filed personally: proved by the written or stamped acknowledgement of its filing by the clerk of court on a copy of the same: or QuickTime™ and a 2. 2. of either sender or addressee. and. Proof of filing Filing is proved by its existence in the record of the case. 1. Section 13 Proof of Service Proof of personal service: 1. Action affects the title or the right of possession of the real property. SERVICE BY MAIL (SECTION 7) If no registry service is available in the locality. Notice of lis pendens LIS PENDENS – a notice of a pendency of the action between the parties involving title to or right of possession over real property. With postage fully paid. place and manner of service. or if he has no office. and 2. Registry receipt issued by the mailing office Section 14. or c. Leaving a copy in counsel’s office with his clerk or with a person having charge thereof. PERSONAL SERVICE (SECTION 6) a. service may be done by ordinary mail.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 9 Service of Judgments. or 2. If it is not in the record. REQUISITES: 1. Proof of service by ordinary mail: Affidavit of the person mailing showing compliance of Section 7 Rule 13. Leaving the copy between 8 a. Affirmative relief is claimed. or b. Proof of service by registered mail: 1.

PURPOSE OF SUMMONS: 1. GENERAL RULE: When an additional defendant is joined. In cases of substitution of the deceased under Section16 of Rule 3. Action in rem (AFP Mutual Benefit Association . To give notice to the defendant than an action has been commenced against him (right to due process). 327 SCRA 203) NOTE: This serves as a warning to all persons. or 3. Custodio 1 SCRA 780 (1961) Where the defendant has already been served with summons on the original complaint. EXCEPTION: 1. It s not necessary to protect the rights of the party who caused it to be recorded. as section 14 provides that such cancellation may be authorized ONLY upon order of court after proper showing that: 1. nonservice or irregular service of summons renders null and void all subsequent proceedings and issuances in the action from the order of default up to and Section 5. the service of the deceased under Section 16 of Rule 3. as the original complaint was deemed withdrawn upon such amendment. SUMMONS – is the writ by which he defendant is notified of the action brought against him. 2. Return EFFECT OF NON-SERVICE: Unless the defendant voluntary submits to the jurisdiction of the court. By whom served Summons may be served by: 1. CA. Where upon the death of the original defendant his infant heirs are made parties. summons must be served upon him. or 4. Notice of lis pendens CANNOT be cancelled on an ex parte motion or upon the mere filing of a bond by the party on whose title the notice is annotated. Clerk to issue summons Summons to be issued: 1. The notice is for the purpose of molesting the adverse party. Enumeration is EXCLUSIVE Section 4. and defendantsee decompressor in a civil are needed to 2. Domingo 44 Phil 680 (1923) But where the defendant was declared in default on the original complaint and the plaintiff subsequently filed an amended complaint. Upon the filing of the complaint. For justifiable reasons. To acquire jurisdiction over the person of QuickTime™ and a the TIFF (Uncompressed) this picture. Sheriff’s deputy. Issuance of Alias Summons ALIAS SUMMONS – is one issued when the original has not produced its effect because of a defect in Page 27 of 289 RULE 14 SUMMONS Minucher v. prospective purchasers or encumbrancers of the property in litigation to keep their hands off the property in litigation unless they are prepared to gamble on the result of the proceedings. new summons must served on the defendant on the amended complaint. or 2. CA 214 SCRA 242 (1992) Jurisdiction over the person of the defendant in a civil case is acquired either by his VOLUNTARY APPEARANCE or SERVICE OF SUMMONS upon him. v. including the judgment by default and the order of execution. and 3. 2. Section 1. Sheriff. no further summons is required on the amended complaint if it does not introduce new cause of action Atkins v. Other proper court officers. Section 2. by any suitable person authorized by the court issuing the summons. Notice shall contain the name of the parties and the object of the action or defense an a description of the property affected thereby. Contents Section 3. Inc. AND 2. .Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. When the administrator of a deceased party defendant substitutes the deceased. Payment of the requisite legal fees. NOTE: In these instances. The defendant may also record a notice of lis pendens when he claims an affirmative relief in his answer. One Peng v. 4. case.

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007
form or in the manner of service, and when issued, superseded the first writ. Section 6. Service in person on defendant Section 7. Substituted Service Section 8. Service upon entity without juridical personality Section 9. Service upon prisoner Section 10. incompetents Service upon minors and Citizen Surety v. Melencio-Herrera 38 SCRA 369 (1971) In action in personam where the defendant cannot be served with summons personal or by substituted service, the case must first be converted into an in rem or quasi in rem action by attaching the property of the defendant found in the Philippines before summons can be served by publication. If no property can be found, the action shall be archived but shall not be dismissed, SERVICE ENTITIES OF SUMMONS ON DIFFERENT C. Publication (Section 14) Requisites: 1. The action is in rem or quasi in rem; 2. Defendant’s identity and whereabouts are unknown and cannot be ascertained or diligent inquiry and 3. there must be leave of court

Section 11. Service juridical entity

upon

domestic

private

Section 12. Service upon foreign private juridical entity Section 13. Service upon public corporations Section 14. Service upon defendant whose identity or whereabouts are unknown Section 15. Extraterritorial Service Section 16. Residents temporarily outside the Philippines MODES OF SERVICE OF SUMMONS: A. Service in person on defendant (Section 6) 1. By handling a copy of summons to him, OR of he refuses to receive it; 2. By tendering it to him. B. Substituted Service (Section 7) For substituted service of summons to be valid, it is necessary to establish the following: 1. The impossibility of the personal service of summons within a person reasonable time; 2. The efforts exerted to locate the person to be served; and 3. Service upon a person of sufficient QuickTime™ and a Tage and discretion residing in the IFF (Uncompressed) decompressor are needed to see this picture. same place as defendant OR some competent person in charge of his office or regular place of business. Spouses Venturanza v. CA 156 SCRA 305 (1987) In substituted service, the sheriff’s return must show that an effort or attempt was exerted to personally serve the summons on the defendant and that the same had failed.

Service on entity without juridical personality (Section 8) Upon any or all the defendants being sued under common name; or person in charge of the office Service upon minors and incompetents (Section 10) In case of minors: by serving upon the minor regardless of age, AND upon his legal guardian, or also upon either of his parents In case of incompetents: by serving on him personally AND upon his legal guardian, but not upon his parents, unless they are his legal guardians In any event, if the minor or incompetent has no legal guardian the plaintiff must obtain the appointment of a guardian ad litem for him. Service upon prisoner (Section 9) Serve on officer having management of the jail or prisoner (warden) Service upon domestic private juridical entity (Section 11) To the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.
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NOTE: Service upon a person other than those mentioned is invalid and does not bind the corporation. The enumeration is EXCLUSIVE. c) any other manner the court may deem sufficient Service upon a resident temporarily outside the Philippines (Section 16) Substituted service or with leave of court, personal service out of the Philippines as under extraterritorial service. Service upon an unknown defendant or whose whereabouts are unknown (Section 14) with leave of court, by publication in a newspaper of general circulation Montalban v. Maximo 22 SCRA 1070 (1968) Summons is validly served if it is left with some person of suitable age and discretion then residing in the defendant’s residence, even if defendant was abroad at that time. The fact that defendant did not actually receive the summons did not invalidated the service of such summons. Section 17. Leave of Court Section 18. Proof of Service Section 19. Proof of Service by Publication Section 20. Voluntary Appearance Any form of appearance in court, by the defendant, by his agent authorized to do so, or by attorney, is equivalent to service of summons EXCEPT where such appearance is precisely to object to the jurisdiction of the court over the person of the defendant. NOTE: Inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall NOT be deemed a voluntary appearance.

Service upon foreign private juridical entity (Section 12) Serve on resident agent; or if none; on government official designated by law; or any officer or agent of the corporation within the Philippines Service upon public corporations (Section 13) In case defendant is the Republic of the Philippines: by serving upon the Solicitor General In case of province , city or municipality, or like public corporations: by serving on its executive head or on such other officer or officers as the law or the court may direct Extraterritorial Service (Section 15) Requisites 1. defendant does not reside or is not found the Philippines; 2. The action must be an action in rem or quasi in rem. It either: a) affects the personal status of plaintiff; b) relates to the subject which is property within the Philippines in which defendant has a lien or interest; c) demands a relief which consists wholly or in part in excluding the defendant from any interest in any property within the Philippines; or d) property of defendant has been attached in the Philippines 3. Mode of Service a) with leave of court, serve outside QuickTime™ and a the Philippine by personal TIFF (Uncompressed) decompressor are needed to see this picture. service; or b) with leave of court, serve by publication in a newspaper of general circulation, in which case copy of the summons and order of court must also be sent by registered mail to the last known address of defendant; or

RULE 15 MOTIONS Section 1. Motion, defined Motion - is an application for relief other then by a pleading KINDS OF MOTIONS

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007
a. motion EX PARTE – made without the presence or a notification to the other party because the question generally presented is not debatable. (i.e. motion for extension of time to file pleadings) b. motion OF COURSE – where the movant is entitled to the relief or remedy sought as a matter of discretion on the part of the court. c. LITIGATED motion – one made with notice to the adverse party to give an opportunity to oppose. (i.e. motion to dismiss) d. SPECIAL motion – motion addressed to the discretion of the court. GENERAL judgment. RULE: A motion cannot pray for 4. Motion and notice of hearing must be served at least 3 DAYS BEFORE THE DATE OF HEARING; (Section 4) and 5. PROOF OF SERVICE.(Section 6) EXCEPTIONS TO THE 3 DAYNOTICE RULE: 1. Ex parte motions; 2. Urgent motions; 3. Motions agreed upon by the parties to be heard on shorter notice or jointly submitted by the parties; and 4. Motions for summary judgment which must be served at least 10 days before its hearing. NOTE: Any motion that does not comply with Sections 4,5 and 6 of this Rule (requirements 4-5) is a mere scrap of paper. It does not interrupt the reglementary period for the filing of the requisite pleading. Section 7. Motion Day Friday afternoon Section 8. Omnibus Motion Omnibus Motion Rule – A motion attacking a pleading, order judgment or proceeding shall include all objections then available. Objections not included shall be deemed waived except the defense referred in Section 1 Section9. Motion for leave Contents: 1. The relief sought to be obtained; 2. The ground upon which it is based; and 3. If required by the Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. Section 4. Hearing of Motion Section 5. Notice of Hearing Section 6. Proof of Service Necessary
QuickTime™ REQUISITES OF A MOTIONand a NOT TIFF (Uncompressed) decompressor MADE IN OPEN are needed to see this picture. COURT OR IN THE COURSE OF HEARING OR TRIAL: 1. it must be in WRITING; 2. HEARING OF MOTION set by the applicant; 3. NOTICE OF HEARING shall be addressed to all parties concerned not later than 10 days from the filing of the motion; (Section 5)

EXCEPTIONS: 1. Motion for judgment on the pleadings; 2. Motion for summary judgment; 3. Motion for judgment on demurrer to evidence. Section 2. Motion must be in writing GENERAL RULE: Motions must be in writing. EXCEPTIONS: Those made in OPEN COURT or in the COURSE OF HEARING or TRIAL. Section 3. Contents

Section 10. Form

RULE 16 MOTION TO DISMISS A MOTION TO DISMISS is NOT a responsive pleading. It is not a pleading at all. It is subject to the omnibus motion rule since it is a motion that attacks a pleading. Hence, it must raise all objections available at the time of the filing thereof. GENERAL RULE: A court may not motu propio dismiss a case unless a motion to that effect is filed by a party thereto. EXCEPTIONS: 1. Those cases where the court may dismiss a case motu proprio (Section 1, Rule 9); 2. Section2 Rule 17; (Upon the plaintiff’s own motion)
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If granted appeals and the order . a summary judgment (Rule 35). 3.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. Motion to dismiss before answer under Rule 16. 6. 10. 2. the admission extends ONLY to material and relevant allegations. regardless of which party is successful. Should be filed within kTime™ and a filed only after May be Quic the time for but TIFF (Uncompressed) this picture. Identify of parties or at least such parties representing the same interests in both actions. Failure to state a cause of action. It hypothetically admits the allegations stated in the complaint. May be filed only by the defendant against the complaint of the plaintiff. However. 3. Improper venue. 11. 5. such as in a judgment on the pleadings (Rule 34). Motion to dismiss may be filed in either suit. Litis pendentia. Applies at law. Motion to dismiss under Rule 17. asserting the claim against him. Not based on fixed time Page 31 of 289 Grounded on preliminary objections. There is substantial identity in the cause of action and relief sought. Non-statutory Applies in equity. NOTE: a motion to dismiss generally partakes the nature of a demurrer. Previous final judgment. No jurisdiction over the person of the defending party. Res judicata. Grounds 1. Upon notice by plaintiff. plaintiff default. Claim is unenforceable under the Statute of Frauds. A matter of time. Statutory. REQUISITES OF RES JUDICATA 1. Motion to dismiss called a demurer to evidence after plaintiff has completed the presentation of his evidence under Rule 33. prior to to see decompressor the plaintiff has are needed the filing of the answer completed the of the defending party presentation of his to the pleading evidence. would amount to res judicata in the other case. Judgment upon the merits. Upon motion by plaintiff. Dismissal of an appeal Section 1. 7. or otherwise extinguished. No jurisdiction over the subject matter of the calm. Jurisdiction over the subject matter and the parties by the court rendering it. Claim or demand has been paid. waived. of subject matter and of cause of action between the first and second actions. A matter of equity. 8. Due to fault of plaintiff. 3. MOTION TO DISMISS UNDER RULE 16 MOTION TO DISMISS UNDER RULE 33 (demurrer to evidence) Based on insufficiency of evidence. If denied. PRESCRIPTION Concerned with the fact of delay. Non-compliance with a condition precedent for filing claim. 4. The identity in the two cases should be such that any judgment that may be rendered in one. or else he may present evidence may be declared in if granted. REQUISITES OF LITIS PENDENTIA 1. 2. no legal capacity to sue. NOTE: There could be res judicata without a trial. not necessarily in the one instituted first. Rule on Summary Procedure (Section 4. 2. and 3. LACHES Concerned with the effect of delay. 4. Prescription. of the dismissal is reversed. Based on fixed time. defendant answers. or an order of dismissal under Section 3 of Rule 17. 9. the defendant loses his right to present evidence. 1991 Revised Rule on Summary Procedure) TYPES OF DISMISSAL OF ACTION: 1. 2. defendant If denied. PRESCRIPTION A motion to dismiss on the ground of prescription will be given due course only if the complaint shows on its face that the action has already prescribed. plaintiff may appeal or if subsequent case is not barred. abandoned. the relief being founded on the same facts. he may refile the case. There must be identity of parties. 4. May be filed by any defending party against whom a claim is asserted in the action.

of Sec. Prescription. Effect of dismissal GENERAL RULE: the action or claim may be re-filed EXCEPTION: the action cannot be re-filed if it was dismissed on any of these grounds: 1. 2. are needed to see this picture. The ordinary procedure is for the defendant to file hi answer and go to trial and if the decision is adverse. Instead. NON-COMPLIANCE WITH A CONDITION PRECEDENT Non-compliance with P. Resolution of Motion The court may order: a. The 2nd par. RULE 17 DIMISSAL OF ACTIONS Section 1. he should NOT file a motion to dismiss. Deny the motion. The former means there is insufficiency in the allegations in the pleading.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 COMPLAINT STATES NO CAUSE OF ACTION When the ground for dismissal is that the complaint states no cause of action. or c. 3. the defendant can PROSECUTE his counterclaim. CERTIORARI or PROHIBITON QuickTime™ and a TIFF (Uncompressed) decompressor lies. he should allege the grounds of a motion to dismiss as affirmative defenses in his answer with a counterclaim. Extinguishment of the claim or demand. EXCEPTION: if the court acts without or in excess of jurisdiction or with grave abuse of discretion in denying the motion. he can appeal from the judgment and assign as error the denial of the motion to dismiss.D 1508 (Katarungang Pambarangay Law) may result to dismissal of the case on the ground on non-compliance with a condition precedent. and in the event the complaint too dismissed. The dismissal of the action. Unenforceability under the Statue of Frauds. such fact can be determined only from the facts alleged in the complaint. FAILURE TO STATE A CAUSE OFACTION and NOT LACK ORABSENCE OFCAUSE OF ACTION is the ground for a motion to dismiss. Res judicata. the remedy of the plaintiff is APPEAL. Hearing of Motion Section 3. Section 5. Dismissal upon notice by plaintiff Page 32 of 289 . Section 2. counted from his receipt o the denial order. b. 6 clearly provides that the dismissal of the complaint without prejudice to the prosecution of the counterclaim. may be pleaded as affirmative defenses and a preliminary hearing may be had thereon in the discretion of the court. The latter means that there is insufficiency in the factual basis of the action. Section 6. NOTE: if the defendant would want to file a counterclaim. but not less than 5 days in any event. and 4. Time to plead Defendant is granted only the balance of the reglementary period to which he was entitled at the time he filed his motion to dismiss. Appeal Certiorari and prohibition if there is grave abuse of discretion amounting to lack or excess of jurisdiction under rule 65 Section 4. In these instances. INCLUDING IMPROPER VENUE. any of the grounds for dismissal provided for in rule 16. Pleading grounds as affirmative defenses If no motion to dismiss had been filed. GENERAL RULE: an order denying a motion to dismiss is interlocutory. EFFECTS OF ACTION ON MTD Order granting motion to dismiss is final order (without prejudice) Order granting motion to dismiss (with prejudice) Order denying the motion to dismiss is interlocutory REMEDY Refile the complaint. A preliminary hearing mat be had thereon. Amend the pleading.

Dismissal upon motion of plaintiff Under this section. Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim on the same separate action. EXCEPTION: 1. Plaintiff fails to comply with these Rules or any order of the court. Such dismissal shall be without prejudice to the right of the defendant to either: 1.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Dismissal is effected not by motion but by mere NOTICE of dismissal which is a matter of right BEFORE the SERVICE of: 1. In this case. It is merely a waiver of his right to cross-examine and to object to the admissibility of evidence Complaint may be dismissed 1. 774 (1953) The dismissal is still with prejudice even if the notice of dismissal does not so provide. TIFF remedies of decompressor These alternative (Uncompressed) this picture. EXCEPT: 1. Dismissal due to fault of plaintiff CAUSES FOR DISMISSAL 1.the defendant are are needed to see available to him REGARDLESS OFWHETHER HIS COUNTERCLAIM IS COMPULSORY OR PERMISSIVE. When otherwise stated in the motion to dismiss. Plaintiff fails to appear for no justifiable cause on the date of the presentation of his evidence in chief on the complaint. unless otherwise declared by the court. Dismissal is a matter of evidence. Where the notice of dismissal so provides. Upon motion of the defendant. 2. the dismissal shall be limited to the complaint. Prosecute his counterclaim in a separate action. Page 33 of 289 . GENERAL RULE: Such dismissal is WITHOUT PREJUDICE. When stated to be with prejudice in the order of the court. Plaintiff fails to prosecute his action for an unreasonable length of time. A motion for summary judgment. defendant must manifest such preference to the trial court within 15 days from notice to him of plaintiff’s motion to dismiss. Section 3. (NOLLEPRODEQU!) 3. or 2. or 2. Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction (TWO-DISMISSAL RULE) Serrano v. The rule requires a COURT ORDER confirming the dismissal. where such notice is premised on the fact of payment by the defendant of the claim involved Section 2. an adjudication on the merits. The approval of the court is necessary in the dismissal or compromise of a class suit. Dismissal under this rule is WITHOUT PREJUDICE. Cabrera 93 Phil. The answer. 2. OR 2. Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless w/in 15 days from notice SECTION 3 Dismissal is not procured by plaintiff though justified by causes imputable to him. the dismissal of the complaint is subject to the DISCRETION of the court and upon such terms and conditions as may be just. Dismissal is a matter of procedure. QuickTime™ and a 2. Jalover v. Upon the court’s own motion. SECTION 2 Dismissal is at the instance of the plaintiff. To have the same resolved in the same action. Ytoriaga 80 SCRA 100 (1977) The plaintiff’s failure to appear at the trial after he has presented his evidence and rested his case DOES NOT WARRANT the dismissal of the case on the ground of failure to prosecute. If a counterclaim has been pleaded by the defendant PRIOR TO THE SERVICE upon hum of the plaintiff’s motion for dismissal. Dismissal shall have the effect of an ADJUDICATION UPON THE MERITS (RES JUDICATA). without prejudice unless otherwise stated in the order of the court or on plaintiff’s motion to dismiss his own complaint.

The possibility of obtaining STIPULATIONS or ADMISSIONS of facts and documents to avoid unnecessary proof. Enter into stipulations or admissions of facts and of documents. Section 2. 2. or of dismissing the action should a valid ground therefore be found to exist. For purposes of the pre-trial.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 of the motion he manifests his intention to have his counterclaim resolved in the same action. with prejudice. Section 4. facts or evidence. 5. 8. The necessity or desirability of AMENDMENTS TO THE PLEADINGS. When conducted The plaintiff should promptly file a motion ex parte that the case be set for pre-trial. Section 7. or summary judgment. Sarmiento v. 3. Such OTHER MATTERS as may aid in the prompt disposition of the case. Filoil Marketing Corp. If a representative shall appear in his behalf fully authorized in writing to: a. Juan 120 SCRA 403 (1983) The “last pleading” need not be literally construed as the actual filing of the last pleading. When the parties are unable to arrive at a stipulation of agreed facts. Appearance of parties When non-appearance of a party may be excused: 1. UNLESS modified before trial to prevent manifest injustice. 4. is essentially voluntary. cross-claim or third party complaint 6. The limitation WITNESSES. the expiration of the period for filing the last pleading is sufficient . Notice of Pre-trial Section 4. Section 5. The advisability of a PRELIMINARY REFERENCE of issues to a commissioner. unless otherwise ordered by the court. Section 3. The advisability or necessity of SUSPENDING THE PROCEEDINGS. b. 2. Pre-trial brief Failure to file pre-trial brief has the same effect as failure to appear at the pre-trial. Effect of failure to appear EFFECT OF NON-APPEARANCE OF PLAINTIFF: Cause for dismissal of the action. The possibility of an AMICABLE SETTLEMENT or of a submission to alternative modes of dispute resolution. Section 1. c. v. of the number of Page 34 of 289 . Nature and purpose The court shall consider: 1. EFFECT OF NON-APPEARANCE OF DEFENDANT: Cause the plaintiff to present evidence ex parte and for the court to render judgment on the basis thereof. Record of pre-trial The contents of the PRE-TRIAL order shall control the subsequent course of the action. Dismissal of counterclaim. is essentially voluntary. and this he must do upon the service and filing of the last pleading. Section 6. 160 SCRA 133 (1988) QuickTime™ and a TIFF (Uncompressed) decompressor The process are needed to see this admissions. and 9. 7. The SIMPLICATION OF ISSUES. If a valid cause is shown therefore. The property of RENDERING JUDGMENT on the pleadings. Submit alternative modes of dispute resolution. Dy Pac & Co. whether of of securing picture. the court must close the pre-trial and proceed with the trial of the case. but must be complemented by a showing of valid cause for the non-appearance of the party himself. Enter into an amicable settlement. Whether of facts or evidence. NOTE: the mere presentation of such written authority is not sufficient. RULE 18 PRE-TRIAL PRE-TRIAL – a mandatory conference and personal confrontation before the judge between he parties and their respective counsel.

The remedy of the movant is to file a separate action. Whether the in intervenor’s rights may be fully protected in a separate proceeding. court rules in favor of either one or dismisses the case Defendants are already original parties to the pending suit RULE 19 INTERVENTION Intervention . Whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. One who has an interest against both parties or 4.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 A party is deemed to have waived the delimitations in a pre-trial order if he failed to object to the introduction of evidence on an issue outside of the pre-trial order.is a legal proceeding by which a third person is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirement set by the Rules of Court TIFF (Uncompressed) decompressor NOTE: Intervention is see this picture. Answer-in-intervention Section 1. Hence the final dismissal of the principal action results into dismissal of said ancillary action. even if the judgment itself recognizes the right of the movant. an independent never are needed to proceeding but is ancillary and supplemental to an existing litigation. when so required to attend. and 2. Amendments to pleading. INTERPLEADER An original action Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein which in whole or in part is not disputed by the other parties to the action. If defendant is absent. 2. as well as in cross-examining the witness in regard to said evidence. Complaint-in-intervention if intervenor asserts a claim against either or all of the original parties. Schedule of trial If plaintiff is absent. a motion to intervene is barred. INTERVENTION An ancillary action Proper in any of the four situations mentioned in this Rule. court may hear evidence of plaintiff ex parte PRE-TRIAL No settlement Amicable Settlement Failure to appear Agreements made by parties. One who has a legal interest in the success of either of the parties 3. Section 3. Defendants are being sued precisely to implead them. QuickTime™ and a Section 2. One who is so situated as to be adversely affected by distribution of other disposition of property in the custody of the court or of an officer thereof. Who may intervene 1. FACTORS TO BE CONSIDERED BY THE COURT 1. 2. One who has legal interest in the matter in litigation Page 35 of 289 . TRIAL Court renders If evidence is sufficient to prove plaintiff’s cause of action or defendant’s counterclaim. NOTE: After rendition of judgment. Time to intervene The motion to intervene must be filed at any time before the rendition of judgment by the trial court. Pleadings-in-intervention 1. the court may dismiss the case The interest which entitles a person to intervene in a suit must be on the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.

or QuickTime™ and a b. 2. b. (Section 1) 2. Mandamus. the name of the court and 2. (and) shall be directed to the person required to attend. if there is grave abuse of discretion If there is improper granting of intervention. Section 4) Liebnow v. (Rule 136. (Section 2) No prisoner (1) sentenced to death. Appeal 2. the name of the court and 2. or c. Answer to a complaint-in-intervention Within 15 days from notice of the order admitting the same REMEDIES FOR THE DENIAL OF INTERVENTION 1. RULE 21 SUBPOENA Section 1. IF SUBPOENA IS ISSUED TO A PRISONER When application for a subpoena to a prisoner is made. (Section 2) The deposition of a prisoner confined in prison may be taken only by leave of court on such terms as the court prescribes. documents. Section1) FORM AND CONTENTS OF A SUBPOENA AD TESTIFICANDUM A subpoena shall state: 1. Any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines. the title of the action or investigation 3. Calendar of cases Section 2. (Section 3) FORM AND CONTENTS OF A SUBPOENA DUCES TECUM 1. The court of the place where the deposition is to be taken. The officer or body authorized by law to do so in connection with its investigations conducted by said officer or body. Assignment of cases. 4. Subpoena ad testificandum – process directed to a person requiring him to attend and to testify a. (Rule 23. TIFF (Uncompressed) decompressor conducted by at any investigation are needed to see this picture. the remedy of the party is Certiorari. or 4. or c. (Section1) Section 2. Subpoena duces tecum – process directed to a person which requires him to bring with him a. It must contain a reasonable description of the books. the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose. for the taking of his deposition. the title of the action or investigation 3. documents or things demanded which must appear to the court prima facie relevant. a proper remedy is motion to vacate or set aside the subpoena. (Section 3) Page 36 of 289 Section 4. 3. (Section 2) A subpoena is signed by the Clerk of Court. Philippine Vegetable Oil 39 Phil 60 (1918) If a subpoena duces tecum is improperly issued.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 if intervenor unites with the defendant in resisting a claim against the latter 1. (and) shall be directed to the person required to attend. Form and Contents WHO ISSUES A SUBPOENA . at the hearing or the trial of an action. reclusion perpetua or life imprisonment and (2) 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. Subpoena and subpoena duces tecum TWO KINDS OF SUBPOENA 1. By who issued Section 3. competent authority. other things under his control. RULE 20 CALENDAR OF CASES Section 1. any books. The court before whom witness is required to attend.

violations of QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. documents or things does not appear. a written permission of the depositor. the fees for one day’s attendance and the kilometrage allowed by these rules EXCEPT THAT. 2. b. or 4. The witness is not bound thereby When is witness not bound? if witness resides more than 100 km from the place where he is to travel by the ordinary course of travel. documents or things demanded if subpoena duces tecum 3. upon order of a competent court in cases of bribery or dereliction of duty of public officials. Subpoena ad testificandum a. Subpoena duces tecum The court may a. or 2. cost of production fees and attendance Notifies party that a complaint against him has been filed and that he should file an answer within a given period Issued only once at the start. the original shall be exhibited and a copy thereof delivered to the person on whom it is served. the tender need not be made. if he is a detention prisoner and no permission is obtained from the court in which his case is pending. tendering to him a. this is subject to the provisions of Section11 of the Anti-Money Laundering Act which gives the Anti-Money Laundering Council the right to examine any particular deposit or investment upon order of any competent court in cases of violation of the AMLA but there is no need for court order if such violation of the AMLA is related to kidnapping for ransom. The relevancy of the books. in any event. b. (Section 4) Section 2 of RA 1405 provides in summary that bank deposits can only be examined when there is: 1. 1. fees for one’s days attendance subject to the same exception as a subpoena ad testificandum the reasonable cost of producing the books. the Comprehensive Dangerous Drugs Act of 2002 and hijacking. Quashing a Subpoena GROUNDS FOR QUASHING A SUBPOENA 1. However. if (grounds) It is unreasonable and oppressive. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. Witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served. upon motion promptly made and. Section 5. Service HOW IS SERVICE OF A SUBPOENA MADE? Service of a subpoena shall be made in the same manner as personal or substituted service of summons. (Section 6 SUBPOENA An order to appear and testify or to produce books and documents May be served to a nonparty Needs tender of kilometrage. or 3. (Section 4) 2. b. or The person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. The witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served. in cases where the money deposited or invested is the subject matter of the litigation. if subpoena duces tecum. at or before the time specified therein c. Subpoena for deposition Section 6. for the court to acquire jurisdiction and for the issues to be joined SUMMONS Order to answer complaint a Served on the defendant Does not need tender of kilometrage and other fees Notice of the date of the hearing of which he is required to attend May be issued more than once at anytime Page 37 of 289 . in cases of impeachment. if subpoena ad testificandum. when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 4.

If the last day falls on a Saturday. There are two instances: 1. it shall be deemed as contempt of the court from which the subpoena is issued (Section 9) What if the subpoena was not issued by the court? The disobedience to the subpoena shall be punished in accordance with the applicable law or Rule. Sunday. the first day (or the day of the act or event from which the designated period is to run) shall be excluded while the last day (the date of performance) shall be included. (Section 1) Section 2. or by order of the court. the extension should be counted from the last day which is a Saturday. proof of the service thereof and 2. (Section 7) Section8.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Violation: default Violation: contempt indirect 2. (Section 10) Section 7. or legal holiday. Compelling Attendance Section 9. (Section 9) ARE THERE ANY EXCEPTIONS TO COMPELLING ATTENDANCE OF WITNESSES ISSUED A QuickTime™ and a TIFF (Uncompressed) decompressor SUBPOENA AND FROM BEING HELD IN are needed to see this picture. or RULE 22 COMPUTATION OF TIME Section 1. A. CONTEMPT OR PUNISHED FOR DISOBEDIENCE? YES. upon: 1. if the witness resides more than 100 kilometers from his residence to the place where he is to testify by the ordinary course of travel (known as viatory right. the court or judge issuing the subpoena. or Legal Holiday and a Motion for Extension Filed on Next Working Day is Granted. Since the motion to dismiss filed interrupts the period to file the answer. proof of the failure of the witness. In case of a failure of a witness to attend. Effect of Interruption WHAT IS THE EFFECT OF INTERRUPTION? If period is interrupted. Contempt CAN THE COURT COMPEL THE ATTENDANCE OF A PERSON TO WHOM A SUBPOENA HAS BEEN ISSUED? YES. How to compute time HOW IS TIME COMPUTED? In computing any period of time prescribed or allowed by these Rules. may issue a warrant to the sheriff of the province. the allowable period after such interruption shall start to run after notice of the cessation of the cause of such interruption. or his deputy. The day of the act that caused the interruption shall be excluded in the computation of the period. A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court or officer. the cost of the warrant and seizure of such witness shall be paid by the witness (Section 8) 2. to a detention prisoner if no permission of the court in which his case is pending is obtained. (Section 8) If the failure to attend was willful and without just cause. to arrest the witness and bring him before the court or officer where his attendance is required. Sunday. When the last day of the period falls on a Saturday. or a legal holiday.M. applicable only in civil cases). what is the balance of his allowable period? ANSWER: 11 days. Personal Appearance in court CAN A PERSON PRESENT IN COURT BE REQUIRED TO TESTIFY? YES. No. time shall not run until the next working day. (Re: Computation of Time when the Last Day Falls on a Saturday. you exclude that day in the computation of the period and so the allowable period would be 11 days. a Sunday. or by any applicable statute. 00-2-14-SC. 1. 2000) Page 38 of 289 . and a party is granted an extension of time. QUESTION: If the defendant files a motion to dismiss on the fifth day. Sunday or a nonworking legal holiday in the place where the court sits.

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 MODES OF DISCOVERY (RULES 23-29) DISCOVERY – disclosure of facts resting in the knowledge of the defendant. Production or inspection of documents. in order to maintain the right or title of the party asking it.. readily manufacture testimony in contradiction to his deposition. Ltd. Depositions pending action (Rule 23) 2. “A copy of the order of the court requiring the parties to avail of interrogatories to parties under Rule 25 Page 39 of 289 . TIFF (Uncompressed) decompressor embarrass. and intended to be used in preparation and upon the trial of a civil or criminal prosecution. It is a pre-trial discovery device by which one party (through his or her attorney) asks oral questions of the other party or of a witness for the other party. Irrelevant 4. Denial of Bills of Particulars does not bar the use of the Modes of Discovery.M. or things (Rule 27) 6. (People v. A. but in pursuance of a commission to take testimony issued by a court. v. Privileged matters Using of the modes of discovery is highly encouraged by the court. Depositions before action or pending appeal (Rule 24) 3. 3. or as production of deeds. in a suit or proceeding. 312 SCRA 573. not to supply evidentiary matters To prepare for responsive pleading MODES OF DISCOVERY To discover evidentiary facts To prepare for (abbreviates trial) trial 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 Rule 27 and 28 within 5 days from the filing of the answer shall be served upon the defendant together with the summons and upon the plaintiff. writings. 1999) PURPOSES OF TAKING DEPOSITIONS 1. CA. to narrow and clarify basic issues between the parties. however. and reduced to writing and duly authenticated. (Rule 35) BILL OF PARTICULARS To make ultimate facts more definite.” (Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures. Webb. It is of great assistance in ascertaining the truth and in checking and preventing perjury. 92 (1994)] PURPOSE OF THE MODES OF DISCOVERY 1. A party or witness whose deposition has been taken at an early stage in the litigation cannot. 16. subject to the inquiry. not in open court. The reasons for this are: a. at a later date. it appears that some lawyers furnish the witness with copies of the interrogatories and thereby enable him to prepare his answers in advance. 2004) RULE 23 DEPOSITIONS PENDING ACTIONS DEPOSITION – is the testimony of a witness taken upon oral examination or written interrogatories. When it can be shown that the examination is being conducted in bad faith 2. to support a motion for summary judgment. or things in his possession or power. c. When it can be shown that the examination is being conducted in such a manner as to QuickTime™ and annoy. The witness (including a party) is examined while his memory is fresh: b. Admission by adverse party (Rule 26) 5. or aoppress the person are needed to see this picture. Aug. Physical and mental examination of persons (Rule 28) LIMITATIONS TO MODES OF DISCOVERY 1. MODES OF DISCOVERY UNDER THE RULES OF COURT 1. 03-1-09-SC. 2. Where the examination is upon written interrogatories. It is cumulative. as a device for ascertaining the facts relative to those issues 3. Interrogatories to parties (Rule 25) 4. [Insular Life Assurance Co. No. The witness (including a party) is generally not coached in preparation for a pre-trial oral examination with the result that his testimony is likely to be more spontaneous. 238 SCRA 88. or under a general law or court rule on the subject.

the time and place for the taking of the deposition (upon motion of any party upon whom the notice is served. together with a copy of the petition stating the time and place. his deposition is available. It is an effective means of detecting and exposing false. IAC. It makes available in a simple. Depositions pending action. It expedites the disposal of litigation. 7. For a deposition upon oral examination (Section 15) a. The name or descriptive title and address of the officer before whom the deposition is to be taken 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 Page 40 of 289 . Depositions on Oral Examinations (Secs. G.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 d. and often inexpensive way facts which otherwise could not have been proved. 5. It safeguards against surprise at the trial. if known. and clears the docket of many cases by settlements and dismissals which otherwise would have to be tried. WHEN MAY DEPOSITIONS BE TAKEN? 1. Section 7) The party must make a motion for leave to take deposition in the court which rendered judgment and give notice in writing to every other party to the action 2. Deposition pending appeal (Rule 24. the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. 15-24) 2. 1. Deposition De Bene Esse – taken for purposes of pending action 2. convenient. and sham claims and defenses. except with great difficulty and sometimes not at all. 1994) NOTICE AND SERVICE Deposition a party desiring to take a deposition pending shall give reasonable notice in writing action to every other party to the action (Rule 23. 6. the name and address of each person to be examined. and narrows and simplifies the issues to be tried. If unknown. (Rule 24. a general description sufficient to identify him or the particular class or group to which he belongs. No. thereby encouraging settlements out of court. It facilitates both the preparation and trial of the cases. Depositions upon Written Interrogatories (Secs. when may be taken QuickTime™ and WHAT TO FILETIFF(SECTION 1) aressor (Uncompressed) decomp are needed to see this picture. 2. 1-14) Section 1. Testimony is preserved. (Fortune v. After jurisdiction has been obtained over any defendant or over property which is the subject of the action but before answer. Depositions in Perpetuam Rei Memoriam – those taken to perpetuate evidence for purposes of an anticipated action or further proceedings in a case on appeal KINDS OF DEPOSITIONS 1. Section 15) Deposition the petitioner shall serve a notice before upon each person named in the action petition as an expected adverse party. 25-28) GENERAL PROVISIONS ON DEPOSITIONS (Secs. thereby expediting the trial. the court may for cause shown enlarge or shorten the time) and b. For deposition upon written interrogatories a. saves the time of the courts. Section 3) At least 20 days before the date of the hearing. It educates the parties in advance of trial as to the real value of their claims and defenses. fraudulent. Motion to Take Oral Deposition or Written Interrogatories (By Leave of Court) 2. Notice to take Oral Deposition or Written Interrogatories (Without Leave of Court) CONTENTS OF THE NOTICE 1. After an answer has been served. 108119. so that if a witness unexpectedly dies or becomes unavailable at the trial. prevents delays. 3. The names and address of the person who is to answer and b.R. 4.

Ex : secrecy of bank deposits. Section 24) husband and wife attorney and client doctor and patient public officer priest and confessant b. or an interlocutory proceeding. nature. Witness is unable to testify because of age. or upon application and notice. description. and location of any books. examination without formal interrogation and cross-examination Can be competent Not admissible in testimonial evidence evidence except in cases governed by the Rule on Summary Procedure Section 4. sickness. or is out of the Philippines. issue a subpoena duces tecum to any such person without an order of the court. not privileged a. UNLESS it appears that absence of witness is procured by party offering the deposition. result of census. condition. and with due regard to the importance of presenting the testimony of witnesses orally in open court. The clerk shall not. documents. custody. Page 41 of 289 . (Rule 21. not restricted by protective order or motion to limit examination (Secs. (Cross reference to Rule 24 Section 6 and 7) For depositions before action. however.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 said notice by the clerk of court of the place in which the deposition is to be taken. that such exceptional circumstances exist as to make it desirable. or imprisonment. in advance of trial and hearing QuickTime™ and a TIFF (Uncompressed) decompressor parte Opportunity for neededcross. non-disclosure of trade secrets. or tangible things and the identity and location of persons having knowledge of relevant facts (Section 2) 3.pictEx statements are to see this ure. before action and pending appeal. Examination and cross-examination may proceed as permitted at the trial under Sections 3 to 18 of Rule 132. the list of privileged communication is not exclusive. Section 6) For depositions pending action or pending appeal. (Rule 23. Witness resides at a distance more than 100 km from place of trial or hearing. privileged communication (Rule 130. candidate voted for except in an election case 2. it may be used in an action involving the same subject matter. the deponent may be examined regarding ANY MATTER (should concur) 1. Section 5) Section 2. including the existence. upon hearing of a motion. whether relating to the claim or defense of any other party. relevant to the subject of the pending action. Use of depositions WHAT ARE THE USES OF DEPOSITIONS? Rule 23 Section 4 is applicable in depositions pending action. Party offering the deposition has been unable to procure the attendance of the witness by subpoena. to allow the deposition to be used. 16 and 18) Section 3. deposition of a witness – may be used by any party a. to contradict or impeach the deponent’s testimony as a witness b. Section 1) Any part or all of a deposition. in the interest of justice. infirmity. may be used against any party who was present or represented during the taking of the deposition or who had notice thereof in accordance with any one of the following provisions: 1. which is admissible in evidence. (Rule 24. Scope of Examination WHAT IS THE SCOPE OF EXAMINATION? Unless otherwise ordered by the court as provided by Section 16 or 18 of this Rule. depositions may be used at the trial. DEPOSITION AFFIDAVIT Written testimony of witness Mere sworn written in course of judicial statements proceedings. for any purpose if the court finds that: Witness is dead.

and. (Section 7) Deposition is a mode of discovery and so it is possible that you will not use the deposition as part of your evidence and so by taking depositions. vice-consul. and any party may introduce any other parts. consul-general. (Cross reference to Rule 24 Section 6 and 7) Substitution of parties does not affect the right to use depositions previously taken. director. (Section 5) Section 6. Notary public c. A party may refuse to present witness even if his deposition was taken. Before such person or officer as may be appointed by commission or under letters rogatory Page 42 of 289 . Rebutting depositions WHAT IS THE EFFECT OF TAKING DEPOSITIONS? A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. Section 10. In foreign countries a.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. On notice. 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. contained in a deposition whether introduced by him or by any other party. deposition of any party.(b) Section4) Defendant may present witness even if it was the plaintiff who took the witness’s deposition. If only part of the deposition is introduced. Within the Philippines a. Deposition of your opponent does not make him your witness 3. Why is an ambassador not included? Because an ambassador is only concerned with political matters. consul. (Section 9) Section 7. before action and pending appeal. or managing agent of a public or private corporation – may be used by an adverse party for any purpose 3. you do not make the deponent automatically your witness. Objections to admissibility WHEN ARE OBJECTIONS TO ADMISSIBILITY OF DEPOSITION MADE? Objection may be made at the trial or hearing to receive 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. Persons before who depositions may be taken in foreign countries BEFORE WHOM MAY DEPOSITIONS BE TAKEN 1. BUT: the introduction in evidence of the deposition or any part thereof makes the deponent the witness of the party introducing the deposition (Section 8) EXCEPTIONS to Section 8: 1. all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefore. consular agent of the Philippines. b. Any Judge b. adverse party may require that all of it which is relevant to the part introduced be introduced. or anyone who at the time of taking the deposition was an officer. Any person authorized to administer oaths if the parties so stipulate in writing (Section 10) 2. Deposition of an officer of a corporation (par. Persons before who depositions may be taken within the Philippines Section 11. his deposition is inadmissible in evidence and he should be made to testify. Effect of using depositions Section 9. Deposition is used to impeach or contradict 2. Section5. Effect of taking depositions ] Section 8. Effect of Substitution of Parties WHAT IS THE EFFECT OF SUBSTITUTION OF PARTIES TO DEPOSITIONS PREVIOUSLY TAKEN? Rule 23 Section 5 is applicable in depositions pending action. before a secretary of any embassy or legation. (Section 4) Where the witness is available to testify and the situation is not one of those excepted under Section 4. (Section 6) And it is also at trial or hearing when any party mayQuickTime™ and a relevant evidence rebut any TIFF (Uncompressed) decompressor are needed to see this picture.

Disqualification by interest WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS? 1. 1 July 1993 The right of a party to take depositions as means of discovery is not exactly absolute. a witness who is within the jurisdiction of the judge or court to whom such letter is addressed Applicable rules of procedure are those of the requesting court Resorted to if permission of the foreign country is given Leave of court is not necessary. embarrassment or opposition (Section 16 and 18) The court in which the action is pending Makes an order that: 1. Relative within 6th degree of consanguinity or affinity of any party 2. CA. Depositions upon oral examination. notice. and on such terms and with such direction as are just and appropriate An instrument issued by Instrument sent in the the court of justice or name and by authority of tribunal to authorize a a judge or court to person to take another judge or court depositions or to do any requesting the latter to other act by authority of custody examine upon such court or tribunal interrogatories filed in a case pending in the former. or oppress the deponent or party The court in which the action is pending or the RTC of the place where the deposition is being taken Orders the officer conducting the examination to Section 12.95863. these provisions expressly authorize the court to either prevent the taking of a deposition or stop one that is already being taken. it may be taken only at Page 43 of 289 . Counsel of any party 4. Orders for the protection of parties and deponents PROTECTION ORDERS OF PARTIES AND DEPONENTS (Section 16 and Section 28) After notice is served for taking a deposition upon motion seasonably made by any party or by the person to be examined and for good cause shown (which means it will be done before the taking of the deposition) MOTION TO TERMINATE OR LIMIT EXAMINATION (Section 18) At any time during the taking of the deposition. time and place Section 16. Any person authorized to administer oaths if the parties so stipulate.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 c. (Section 11) Autographics. Employee ofQuickTime™ and a party’s counsel TIFF financiallydecompressor (Uncompressed) interested in the action 6. Employee of any party 3. Section 13. Commission or letters rogatory COMMISSION LETTERS ROGATORY Issued only when necessary or convenient. 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. deposition shall not be taken 2. on application and notice. embarrass. Section 15. v. Relative within the same degree of any party’s counsel 5. GROUNDS FOR NOT TAKING A DEPOSITION 1. sections 16 and 18 of Rule 24. This is implicit in the provisions of the Rules of Court cited by appellants themselves. GR No. to protect a party or witness from annoyance. In such instances. Applicable rules of procedure are those of the foreign court requested to act Resorted to if the execution of the commission is refused in the foreign country Leave of court is necessary. not relevant (Section 1) 2. Anyoneare needed to see this picture. Inc.

Certification and filing by officer Section 21. 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. Submission to witness. objections Section 18. changes. All objections made at the time of the examination to the qualifications of the officer taking the deposition. 8. or may limit the scope and manner of the taking of the deposition. or by some one acting under his direction and in his presence. parties served with notice of taking a deposition may transmit written interrogatories to the officers. examination Record of Examination. or to the manner of taking it. the taking of the deposition shall be suspended for the time necessary to make a notice for an order. or research need not be disclosed. 6. and any other objection to the proceedings. shall be noted by the officer upon the deposition. Notice of Filing Section 22. the court may QuickTime™ and a TIFF (Uncompressed) decompressor impose upon either party or upon the witness the are needed to see this picture. oath. signing Section 20. If the deposition is not signed by the witness. changes. oath. Evidence objected to shall be taken subject to the objections. objections (Section 17) The officer before whom the deposition is to be taken shall put the witness on oath and shall personally. If the order made under Section 18 terminates the examination.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 some designated place other than that stated in the notice it may be taken only on written interrogatories or only upon oral examination certain matters shall not be inquired into the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel that after being sealed. the officer shall sign it and state on the record the facts of the waiver or of the illness or absence of the witness or the fact Page 44 of 289 3. who shall propound them to the witness and record the answers verbatim. 4. Furnishing Copies PROCEDURE FOR TAKING ORAL DEPOSITIONS 1. In lieu of participating in the oral examination. requirement to pay such costs or expenses as the court may deem reasonable Section 17. signing (Section 19) When the testimony is fully transcribed. Section 19. Submission to witness. the deposition shall be submitted to the witness for examination and shall be read to or by him unless such examination and reading are waived by the witness and by the parties. or oppression cease forthwith from taking the deposition. 9. unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. Record of examination. or to the evidence presented. record the testimony of the witness. Motion to terminate or limit . developments. 10. or to the conduct of any party. 2. it shall be resumed only upon order of the court in which the action is pending. In granting or refusing such order. or that it shall not be taken before the officer designated in the notice (Section 28) any other order which justice requires to protect the party or witness from annoyance. embarrassment. 7. 5. Upon demand of the objecting party or deponent. the deposition shall be opened only by order of the court that secret processes. The deposition shall then be signed by the witness. or that the parties shall simultaneously file specified documents or information enclosed in a sealed envelope to be opened as directed by the court. The testimony shall be taken stenographically unless the parties agree otherwise.

After service of notice. the officer shall furnish a copy of the deposition to any party or to the deponent. He shall then securely seal the deposition in an envelope endorsed 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. Furnishing copies (Section 22) Upon payment of reasonable charges therefor. including reasonable attorney’s fees. (Section 26) 5. the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. the court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attend. within 10 days thereafter. interrogatories Deposition upon written service of notice and Section 26. When a deposition upon interrogatories is filed. A copy of the notice and copies of all interrogatories served shall be delivered to the officer designated in the notice who shall proceed promptly.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 of the refusal to sign together with the reason given therefore. Certification and filing by officer (Section 20) The officer shall certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness. to take the testimony of the witness in response to the interrogatories and to prepare. Section 23. a party may serve recross-interrogatories upon the party proposing to take the deposition. (Section 27) Section 29. Failure of party giving notice to serve subpoena HOW ABOUT IF THEQuickTime™ and FAILS TO SERVE A PARTY a TIFF (Uncompressed) decompressor are needed to see this picture. As to notice – waived unless written objection is promptly served upon the party giving the notice 2. and may furnish copies to them or to the deponent upon payment of reasonable charges therefore. Officers to take responses and prepare record Section 27. Effect of errors and irregularities in depositions WHAT ARE THE EFFECTS OF ERRORS AND IRREGULARITIES IN THE DEPOSITIONS? 1. and 20 of this Rule. (Section 24) 2. (Section 24) Section 25 interrogatories. Notice of filing (Section 21) The officer taking the deposition shall give prompt notice of its filing to all the parties. 19. the party proposing to take the deposition may serve re-direct interrogatories upon a party who has served cross-interrogatories. SUBPOENA UPON THE WITNESS? If another party attends in person or by counsel because he expects the deposition of that witness to be taken and the witness fails to attend because of the failure of the party giving notice to serve a subpoena upon the witness. 4. unless a motion to suppress is filed. Orders for the protection of parties an deponents PROCEDURE FOR DEPOSITION UPON WRITTEN INTERROGATORIES 1. As to disqualification of officer – waived unless made before the taking of the deposition begins or as soon thereafter as Page 45 of 289 . certify. Within 3 days after being served with redirect interrogatories. (Section 24) 3. the party so served with the notice may serve cross-interrogatories upon the party proposing to take the deposition. in the manner provided by sections 17. Within 5 days thereafter. 5. and the deposition may be used fully as though signed. the officer taking it shall promptly give notice thereof to all the parties. Failure to attend of party giving notice WHAT HAPPENS IF A PARTY GIVING THE NOTICE OF THE TAKING OF THE DEPOSITION FAILS TO ATTEND AND PROCEED WITH THE TAKING OF DEPOSITION? If the party giving the notice fails to attend and proceed therewith and another attends in person or by counsel pursuant to the notice. (Section 24) 4. Notice of filing and furnishing copies Section 28. 3. and file or mail the deposition. if any. (Section 23) Section 24. then the same consequence as above. attaching thereto the copy of the said notice and the interrogatories received by him.

Errors occurring at the oral examination in the manner of taking the deposition. 3. the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it. the names and addresses of the persons to be examined and the substance of the Page 46 of 289 . that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought. indorsed. in oath or affirmation.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 the disqualification becomes known or could be discovered with reasonable diligence As to competency or relevancy of evidence . As to manner of preparation . Objections to re-direct interrogatories can made within 3 days. the substance of the testimony which he expects to elicit from each. filed or otherwise dealt with by the officer are waived unless a motion to suppress the deposition or some part of it is made with reasonable promptness after such defect is. be be be be 3. unless ground is one which might have been obviated or removed if presented at that time As to oral examination and other particulars . Alumbres. Diman v.NOT waived by failure to make them before or during the taking of the deposition. it is the law which makes that determination. d tthe this picture. certified. subject are neede o see his interest therein. 27 Nov 1998 A trial court has no discretion to determine what the consequences of a party's refusal to allow or make discovery should be. the names and addresses of the persons to be examined and 2. and errors of any kind which might be obviated. 5. As to form of written interrogatories waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after the service of the last interrogatories authorized. or in conduct of parties. 4. signed. and 3. and it is grave abuse of discretion for the Court to refuse to recognize and observe the effects of that refusal as mandated by law. removed. QuickTime™ and a TIFF (Uncompressed) decompressor matter of the expected action and 2. in the form of questions and answers. Objections to re-cross interrogatories can made within 3 days.errors as to manner in which the testimony is transcribed or the deposition is prepared. sealed. Objections to cross interrogatories can made within 5 days. the reason for perpetuating their testimony (Section 7) What to file? a verified petition. cured if promptly prosecuted are waived unless reasonable objection is made at the taking of the deposition. transmitted. Objections to direct interrogatories can made within 10 days. 2. Hon. the names or a description of the persons he expects will be adverse parties and their addresses so far as known. 4. and 5. 6. ascertained. G. No. (Section 29) RULES ON OBJECTIONS 1. RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL Who apply? can DEPOSITIONS BEFORE ACTION A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines (Section 1) DEPOSITIONS PENDING APPEAL Any person can perpetuate their testimony for use in the event of further proceedings in the said court (Section 7) motion upon notice and service. 3. or with due diligence might have been.R. 4. contents of which are: 1. 131466. contents of which are: The petition shall be entitled in the name of the petitioner and shall show: 1.

(Section 1 & 2) in the court of the place of the residence of any expected adverse party (Section 1) Before the action. 10 days to object. (Rule 129. then it will be answered by any officer competent to testify in its behalf. QuickTime™ and a you need leave TIFF (Uncompressed) this picture. you still have 5 days to file an answer. shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony. specify the subject matter of the examination and 3. In case objection is denied. which shall be set at an early time. service thereof WHO CAN APPLY? ANY PARTY desiring to elicit material and relevant facts FROM ANY ADVERSE PARTY shall file and serve upon the latter written interrogatories to be answered by the party served. Objections to interrogatories WHEN DO YOU MAKE OBJECTIONS TO INTERROGATORIES? Objections to any interrogatories may be presented to the court within ten (10) days after service thereof. Depositions before action is only applicable in civil cases. then you do not need leave of court. (Section 3) 15 days to answer. (Section 1) DO YOU NEED LEAVE OF COURT FOR WRITTEN INTERROGATORIES? DEPENDS. which shall: 1. Where to apply? When to file? Court order and examination the court in which the judgment was rendered (Section 7) At any time before judgment becomes final: 1. (Section 4 & 7) INTERROGATORIES Disclosure of matters of proof May be made part of the records as evidence BILL OF PARTICULARS Disclosure only of matters which define the issues Become a part of the pleadings RULE 25 NTERROGATORIES TO PARTIES Section 1 Interrogatories to parties. Answer to interrogatories WHAT IS THE FORM OF AN ANSWER TO INTERROGATORIES? 1. (Section 1. answered fully in writing and 2. designate or describe the persons whose deposition may be taken and 2. with notice as in case of a motion. it may make an order allowing the depositions to be taken. Section 4) Section 2. and 6. (Section 2) Section 3. answer HAS BEEN of court. If the person served is a private or public corporation. or 2. including the Court of Appeals in proper cases. Page 47 of 289 . cross refer to Rule 23 Section 1) Interrogatories and the answers thereto should be filed in court and served on adverse parties.tobutdecompressor if the are needed see served. partnership or association.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 testimony which he expects to elicit from each. specify whether the depositions shall be taken upon oral examination or written interrogatories. and answers shall be deferred until the objections are resolved. signed and sworn to by the person making them. as practicable. so that the answers may constitute judicial admissions. If an answer has NOT YET BEEN served. before the taking of an appeal if the time therefore has not expired (Section 7) If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice. If an appeal has been taken from a judgment of a court.

Scope and use of interrogatories Section 6. Request for admission Purpose of written request for admission To expedite trial and relieve the parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry What request may include: 1. either party or witness Any matter as long as relevant and not privileged Rule 23. If the document is actionable. Admission of the genuineness of any material and relevant document described in and exhibited with the request 2. Section 5) 15 days to answer unless extended or reduced by the RULE 26 ADMISSION BY ADVERSE PARTY Intervention by the Court With intervention of the office who is authorized to take the deposition court No intervention since interrogatories are directed to the party himself Section 1. UNLESS thereafter allowed by the court 1. recross. the original or a copy should be attached to the complaint. Under this rule. to give a deposition pending appeal. Po v. Section 4 No fixed time Interrogatories to Parties (Rule 25) File and serve questions and the party has to answer them Only a party to the case. Distinguished from Written Interrogatories Page 48 of Procedure Deponents Coverage Uses Interrogatories . You just serve QUESTIONS Any person. or copied therein. a matter of fact not related to any documents may be presented to the other party for admission or denial Distinguished from Rule on Actionable Documents A request for admission is proper when the genuineness of an evidentiary document is sought to be admitted. and its genuineness and due execution is deemed impliedly admitted unless specifically denied under oath by the adverse party. cross. Number of interrogatories HOW MANY INTERROGATORIES CAN YOU FILE? No party may. or 2. Section 5) Same (Rule 25. redirect.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 4. (Section 4) Section 5. for good cause shown and 2. particularly the adverse party Same (Rule 25. without leave of court. its genuineness it deemed admitted. serve more than one set of interrogatories to be answered by the SAME party. Effect of failure to serve written interrogatories WHAT IS THE EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES? A party not served with written interrogatories may not be 1. to prevent a failure of justice (Section 6) WHAT IS THE EFFECT TO FAILURE TO ANSWER INTERROGATORIES? Case may be dismissed or a judgment by default may be given Depositions under Written upon Written Interrogatories (Rule 23) Direct. compelled by the adverse party to give testimony in open court. or documents described in and exhibited with the request. If not denied under oath in accordance with Section 2. whose purpose is to establish said party’s cause of action or defense. Admission of the truth of any material and relevant matter of fact set forth in the request 3. Court of Appeals 164 SCRA 668 (1998) A request for admission is not intended to merely reproduce or reiterate the allegations of the requesting party’s pleading but should set forth relevant evidentiary matters of fact.

Documents constitute or contain evidence material to any matter involved in the action. Remedy of the party File a motion to be relieved of the consequences of the implied admission. Objections on the ground of irrelevancy or impropriety of the matter requested shall be promptly submitted to the court for resolution. order Purpose of the rule This rule is not intended for use as a dragnet or any fishing expedition. Effect of admission Use of the admission An admission under this section is for the purpose of the pending action only and cannot be used in other proceedings. Section 4. place and manner of making the inspection and taking copies AND b. a party may present evidence regarding said fact even if he failed to file a request for admission. If an adverse party denies a fact within his personal knowledge.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 WRITTEN INTERROGATORIES Adverse party or witness NOT required to deny or admit anything Written request must be filed in court and served on the adverse party Must be objected within 10 days (Rule 25) REQUEST FOR ADMISSSION Adverse party only Required to admit or deny something Written request must be filed in court and served on the adverse party Must be objected within 15 days RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS Section 1. Section 3. and which are in his (the party ordered) possession. Effect of failure to make a reply to a request for admission Each of the matters of which an admission is requested is deemed admitted. or control Contents of the Order a. May prescribe such terms and conditions which are just. Shall specify the time. custody. Documents should not be privileged 2. or custody of a party Limitations of the Order 1. Rule only applicable to: a pending action and the documents or things subject of the motion must be only those within the possession. The amendment of the complaint per se cannot set aside the legal affects of the request for admission since its materiality has not been affected by the amendment. party may move for summary judgment. Paragraph (b) applies to Real/Personal property Distinguished from Subpoena Duces Tecum PRODUCTION OR SUBPOENA DUCES INSPECTION OF TECUM DOCUMENTS OR THINGS Essentially a mode of Means of compelling discovery production of evidence The Rules is limited to the May be directed to a parties to the action person whether a party or not The order under this Rule May be issued upon an is issued only upon motion ex parte application with notice to the adverse party Section 2. control. Withdrawal. Effect of failure to file and serve request for admission. Implied admission The motion for extension of time to answer the request for admission should be served on the adverse party but need not be set for hearing. Motion for production or inspection. Page 49 of . If facts are admitted or deemed admitted. This rule is also not intended to open all of a party’s records to other party on vague chance than they might contain some material relevant to some theory advanced by the other party. Section 5.

and upon notice to the party to be examined and to all other parties. Rule 130 – Since the results of the examination are intended to be made public. Refusal to answer. Section 4. and shall specify the time. Apply to court for order Section 2. the examination may be completed on other matters or adjourned as the proponent of the question may prefer. Other consequences Other consequences If a party/officer or managing agent of a party refuses to obey an order requiring him: Page 50 of . Refusal to answer If a party or other deponent refuses to answer any question upon oral examination. then determine the physician who shall conduct the examination. In an action to recover damages for personal injury. Section 3. Examples of Mental or Physical Condition of a party in controversy: 1. Order for examination The order for examination may be made only: on motion for good cause shown. RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY Section 1. place. When examination may be ordered This applies only to parties. Section 2. The Court must first determine whether a physical examination is necessary. Adjourn 3. NOT witnesses. conditions and scope of the examination and the person or persons by whom it is to be made. In a petition for guardianship on the ground of insanity. The refusing party or his counsel to pay the expenses incurred in obtaining the order. What is good cause When the ends of justice so require and the examination may be made without danger to the party’s life or health or the infliction upon him of serious pain. The proponent may apply to the court for an order to compel an answer. including the attorney’s fees (if it finds the refusal to answer without substantial justification) ii. The court may then order: i. the same are not covered by the physician-patient privilege. . Waiver of privilege. the physical condition of the plaintiff in controversy 2. The proponent or his counsel to pay the expenses incurred in opposing the application. Report of findings Discretion of Court The Court exercises full discretion in regulating physical and mental examinations of a party to a controversy. including attorney’s fees (if it finds the application to be without substantial justification) Where to file for the order to compel RULE 23 Depositions pending actions – application for an order must be filed with the court of the place where the deposition is being taken RULE 25 Interrogatories to parties – application for an order must be filed with the court where the action is pending Remedies 1. the mental condition of the ward is in controversy Section 24(b). Complete other matters 2.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS Section 1. manner. Contempt of court Contempt of court: If a party or other witness: refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken Section 3. The defendant seeking physical examination of a plaintiff has no absolute right to choose his own physician.

Expenses against the Republic of the Philippines RULE 30 TRIAL TRIAL It is the judicial process of investigating and determining the legal controversies.(d)) 2. or the physical and mental condition of the party be taken to be established. The dismissal of the action or parts thereof d. may: strike out all or any part of any pleading of that party. Judgment by Confession 5. starting with the production of evidence by the plaintiff and ending with his closing arguments GENERAL RULE: There should be a trial when an issue exists. For while the modes of discovery are intended to attain the resolution of litigations with great expediency. NOTE: Orders enumerated above are NOT exclusive. A decision should not be made without trial EXCEPTIONS: 1. including attorney’s fees. The prohibition of the disobedient party to present evidence. c. Judgment with Prejudice (Rule 17) Page 51 of . b. order him to pay reasonable expenses incurred by the other. Summary Judgment (Rule 35) 3. Enter a judgment by default against that party. the court may: a. CA 238 SCRA 88 (1994) The matter of how. Dismiss the action or any part thereof. Insular Life Assuarance Co. and in its discretion. The striking out of the pleadings or parts thereof d.. That the matters regarding which the questions were asked. b. they are not contemplated. The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical or mental examination If a party refuses to attend or serve answers. after being served with a proper notice. including attorney’s fees. Pay expenses Arrest (Section3 par. To submit to a physical or mental examination The court may order: a. Ltd. To answer designated questions b. Rendering judgment by default against the disobedient party OR e. Affect disposition of the case (Section3 par. The disallowance of the disobedient party’s claims c. EXCEPT an order to submit to a physical or mental examination. or dismiss the action or proceeding or any part thereof. however. Facts will be deemed established (Section3 par. In lieu of any of the foregoing orders or in addition thereto. or enter a judgment by default against that party.(b)) 6. Contempt (Section2) 4. The court on motion and notice. or the character of the land or the thing. the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the case pends. Judgment on the Pleading (Rule 34) 2.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 a. an order directing the arrest of any party or agent of a party for disobeying any of such orders.(a)) 5. or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories.(c)) Section 4. Section 6. Order that party to pay reasonable expenses incurred. To produce a thing for inspection or to permit entry upon property c. (Section1) 3. Expenses on refusal to admit Failure of party to attend or serve answer If a party or an officer or managing agent of a party willfully: fails to appear before the officer who is to take his deposition. Strike out all or any part of any pleading of that party. SANCTIONS: 1. having always in mind the paramount and overriding interest of justice. and when. v. Judgment on Compromise 4. ultimately to be of injustice. Prohibiting from introducing evidence (Section3 par. OR/AND d.

continues with hearing After presentation of evidence. Order of trial Plaintiff presents evidence in support of his complaint If the adverse party admits the facts for which evidence is to be presented. Section 2. That the character of his illness is such as to render non-attendance excusable. the trial will not be postponed. and (2) due diligence in procuring it.submission of memoranda DECISION Reverse Order of Trial In this situation. That the presence of the party or counsel at the trial is indispensable. Requisites of motion to postpone trial for absence of evidence There must be an affidavit showing: (1) materiality or relevance of evidence. Adjournments and postponements Section 3. Such stipulations are binding unless relief therefrom is permitted by the court on good cause shown. Section 4. Requisites of motion to postpone trial for illness of party or counsel REQUISITES An affidavit showing that: 1. and 2. 2. 1. a reverse order of trial is proper Section 6. such as Page 52 of . Notice of trial Notice at least 5 days before the trial date is a part of procedural due process. Agreed statement of facts This is known as STIPULATION OF FACTS and is among the purposes of a pre-trial. Rebuttal evidence by parties Third party defendant presents evidence.oral arguments. the defendant presents evidence ahead of the plaintiff When Reverse Order of Trial Proper If the defendant in his/her answer relies upon an affirmative defense. The parties may also stipulate verbally in open court. if any Court grants motion: renders dismissal Court denies motion.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 1. such Defendant presents evidence to support his defense/counterclaim/c ross-claim/third party complaint Defendant files: demurrer to evidence Section 5.

REQUISITES FOR CONSOLIDATION: 1. But counsel cannot stipulate on what their respective EVIDENCE consists of and ask that judgment be rendered on the basis of such stipulation. within 10 days from the termination of the hearing. authorization from the SC is necessary. delegation to clerk of court GENERAL RULE: The judge must himself personally receive and resolve the evidence of the parties. EVERY CIVIL ACTION OR PROCEEDING SHALL BE SUSPENDED 1. By hearing only the principal case and suspending the hearing on the others until judgment has been rendered in the principal case. NOTE: Stipulations of facts are not permitted in actions for ANNULMENT OF MARRIAGE and for LEGAL SEPARATION. 3 WAYS OF CONSOLIDATING CASES: 1. Section 7. offered to discuss a possible compromise but the other party refused the offer. before the commencement of the action or proceeding. Section 1. (b) The reception of evidence shall be made only by the clerk of that court who is a member of the bar. Separate trials on any claim. guard against oppression or abuse. clear congested dockets. the case which was appealed later and bearing the higher docket number is consolidated with the case having the lower docket number. • If filed with different courts. By recasting the cases already instituted. Consolidation of cases on appeal and assigned to different divisions of the SC and the CA is also authorized. Suspension of actions ART. Consolidation GENERAL RULE: Consolidation is discretionary upon the court. EXCEPTIONS: Consolidation becomes a matter of duty when: 1. prevent delay. The actions are pending before the same court. third-party complaints. Generally. and 3. Contemplates a single action having a number of claims. (TEST-CASE METHOD) Section 2. Statement of judge Section 8. crossclaim. counterclaims. and (d) He shall submit his report and transcripts of the proceedings. PURPOSE To avoid multiplicity of suits. or an agreement in writing by the parties. and 2. Judge to receive evidence. If the cases are pending before the same judge. conducting only one hearing and rendering only one decision. RULE 31 CONSOLIDATION OR SEVERANCE CONSOLIDATION Involves several actions having a common question of law or fact which may be jointly tried. together with the objections to be resolved by the court. simplify the work of the Trial Court and save unnecessary costs and expenses. Section 9. By consolidating the existing cases and holding only one hearing and rendering only one decision. REQUSITES ON VALID DELEGATION OF POWER TO RECEIVE (a) The delegation may be made only in defaults or ex parte hearings. or issues which may be separately tried. (c) Said clerk shall have no power to rule on objections to any question or to admission of evidence or exhibits. 2. 2030 OF THE CIVIL CODE. OR 2. If it appears that one of the parties.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 error or fraud. etc. Actions which involves a common question of law or fact. cross-claims. or 2. If filed with different branches of the same RTC and one of such cases has not been partially tried. If willingness to discuss a possible compromise is expressed by one or both parties. SEVERANCE Page 53 of .

The parties shall be notified by the clerk. Commissioner shall avoid delays Section 9. Section 11. Stipulations as to findings When the parties stipulate that a commissioner’s findings of fact shall be final. Hearing upon report Section 12. Cases when reference by motion of one of the parties or motu proprio SITUATIONS WHEN REFERENCE TO A COMMISSIONER MAY BE MADE ON MOTION 1. or to receive and report evidence only 2. Order of reference. UNLESS they were made before the Commissioner. includes a referee. Section 8. hear the parties and report thereon to the court. and upon whose report. An irregularity in the appointment of a commissioner must be seasonably raised in the trial court where the defect could still be remedied. Failure of parties to appear before Commissioner If a party fails to appear at the time and place appointed. Refusal of witness to obey subpoena issued by Commissioner Disobedience to a subpoena issued by the commissioner is deemed contempt of the court which appointed the latter. Proceedings before Commissioner Section 6. AND 2. the commissioner may proceed ex parte or. Compensation of Commissioner RULE 32 TRIAL BY COMMISSIONER COMMISSIONER A person to whom a case pending in court is referred. The parties shall be allowed 10 days within which to object to the findings of the report. Oath of Commissioner before he enters into his duties Section 5. in his discretion. giving notice to the absent party or his counsel of the adjournment. Taking of an account is necessary for the information of the court before judgment or for carrying a judgment order into effect 3. Trial requires examination of a long account of either side 2. Question of fact. It can be waived by consent of the parties expressly or impliedly. POWERS OF THE COMMISSIONER 1. if confirmed. Objections to the report based upon grounds which were available to the parties during the proceedings before the Commissioner shall not be considered by the court.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 When the separate trial of claims is conducted by the court under this section. Section 1. 3. Swear witnesses 5. an auditor and an examiner. Exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties Page 54 of . only questions of law shall thereafter be considered. other than upon the pleadings. Unless otherwise provided in the order of reference. Section 13. for him to take testimony. Report of Commissioner Section 10. judgment is rendered. Notice to parties of the filing of report UPON FILING OF THE REPORT OF THE COMMISSIONER: 1. Section 7. Section 2. in any stage of the case Section 3. Issue subpoenas and subpoenas duces tecum 4. Reference to Commissioner by consent of both parties Reference to a commissioner may be had by the written consent of both parties. or to do or perform particular acts. Report only upon particular issues. adjourn the proceedings to a future day. he may rule upon the admissibility of evidence Section 4. arises upon motion or otherwise. powers of the Commissioner Order may specify or limit the powers of the Commissioner. it may render separate judgments on each claim.

Demurrer to evidence DEMURRER TO EVIDENCE It is presented after the plaintiff has rested its case. the plaintiff has shown no right to relief. accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence. If the court finds plaintiff’s evidence insufficient. If the motion is denied. If plaintiff appeals and judgment is reversed by the appellate court. RULE 33 DEMURRER TO EVIDENCE Section 1. if demurrer was with leave. the requirement in Section 1. Order of the court is an ADJUDICATION ON THE MERITS. accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence. the complaint is dismissed and depending on the ground. The ground is based on insufficiency of evidence. The decision of the appellate court will be based only on the evidence of the plaintiff. will not apply. If court denies the demurrer: a. CRIMINAL CASES May be filed with or without leave of court. Movant shall have the right to present his evidence. The denial is NOT appealable. Judgment of acquittal is not appealable. If the motion is granted. The judgment of dismissal is appealable by the plaintiff. defendant will present his evidence. it will decide the case on the basis of the plaintiff’s evidence with the consequence that the defendant already loses his right to present evidence. If court denies the demurrer: a. no res judicata in dismissal due to demurrer. defendant may file his responsive pleading. double jeopardy sets in. hence. Leave of court is necessary so that the DEMURRER TO EVIDENCE It is made by the defendant after the plaintiff has completed the presentation of his evidence where the defendant moves for dismissal on the ground that upon the facts and the law. accused may present evidence b. It may be used on any of those enumerated in Rule 16. The remedy of the plaintiff is to APPEAL. Sec. 2 SCENARIOS: MOTION DENIED MOTION GRANTED BUT REVERSED ON APPEAL MOTION TO DISMISS Presented before a responsive pleading (answer) is made by the defendant. if the demurrer was without leave. if the demurrer was without leave. accused may present evidence b. defendant will present his evidence. the defendant may present his evidence.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 accused could present his evidence if the demurrer is denied. Movant is deemed to have waived his right to present evidence. it will grant the demurrer by rendering judgment acquitting accused. made after Page 55 of . it will grant the demurrer by dismissing the complaint. as the defendant loses his right to have the case remanded for reception of his evidence. Denial is interlocutory. if demurrer was with leave. If the court finds the prosecution’s evidence insufficient. If court denies demurrer. the complaint may be re-filed. 1. CIVIL CASES Defendant need not ask for leave of court. If the motion is denied. JUDGMENT ON DEMURRER TO EVIDENCE It is a judgment rendered by the court dismissing a case upon motion of the defendant. Rule 36 should be complied with. If court denies demurrer. If the motion is granted. the complaint is dismissed. Rule 36 (that judgment should state clearly and distinctly the facts and the law on which it is based).

or “to obtain declaratory relief”. the pleadings alone. on the ground that upon the facts presented by the plaintiff and the law on the matter. Answer admits material allegations of the adverse party’s pleading. on the ground that upon the facts presented by the plaintiff and the law on the matter. made after plaintiff has rested his case. Section 1. crossclaim. MOTION FOR JUDGMENT ON THE PLEADINGS Filed by the plaintiff if the answer raises no issue. Falcasantos v. Annulment of marriage 3. plaintiff has not shown any right to relief. When judgment on the pleadings is proper A judgment on the pleadings must be on motion of the claimant.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 plaintiff has rested his case. also unavailable in actions for annulment of a and declaration of nullity of marriage. MOTION TO DISMISS Decision is based on the evidence presented. plaintiff has not shown any right to relief. must be understood to ADMIT all MATERIAL and RELEVANT ALLEGATIONS of the opposing party and to rest his motion for judgment on those allegations taken together with such of his own as are admitted in the pleadings. GROUNDS: 1. Claim for such damages must be alleged and proved. . cross-claim or third-party complaint. fictitious. plaintiff waives his claim for unliquidated damages. or to obtain a declaratory relief. if at pre-trial. Legal separation JUDGMENT ON THE PLEADINGS The defendant answered. If the complaint states no cause of action. b. it may render such judgment motu proprio. May be asked for by a party seeking to recover upon a claim.” or to recover a debt or a liquidated demand for money. However. Page 56 of Evidence is received. Decision is based on the allegations in the pleadings. Answer fails to tender an issue because of: a. Although Rule does not specifically provide. contrived. and for legal separation since Section 1 refers to actions “to recover upon a claim. Filed by defendant to a complaint. a motion to dismiss should be filed and no a motion for judgment on the pleading. and patently unsubstantial so as not to constitute a genuine issue for trial. counterclaim. insufficient denial of the material allegations of the complaint or 2. ACTIONS WHERE THE MATERIAL FACTS ALLEGED IN THE COMPLAINT MUST ALWAYS BE PROVED 1. general denial of the material allegations of the complaint. By moving for judgment on the pleading. Declaration of nullity of marriage 2. Evidence is not received as the same is based on JUDGMENT BY DEFAULT The defendant did not file an answer. RULE 35 SUMMARY JUDGMENTS SUMMARY JUDGMENT One granted by the court for the prompt disposition of civil actions wherein it clearly appears that there exists no genuine issue or controversy as to any material fact. RULE 34 JUDGMENT ON THE PLEADINGS JUDGMENT ON THE PLEADINGS It is a judgment rendered by the court dismissing a case upon motion of the defendant. How Suy Ching 91 Phil 456 (1952) One who prays for judgment on the pleadings without offering proof as to the truth of his own allegations and without giving the opposing party an opportunity to introduce evidence. the court finds that a judgment on the pleadings is proper. GENUINE ISSUE It is an issue of fact which calls for the presentation of evidence as distinguished from an issue which is sham. but did not tender an issue or admitted the material allegations in the complaint. counterclaim.

Section 5. depositions. admissions. Admissions of the adverse party under Rule 26. 2. set-up in bad faith. Summary judgment for claimant May be filed at any time after the pleading in answer thereto has been served. Available to both plaintiff and defendant. and admissions on file. and patently unsubstantial. depositions.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 1. except damages which must always be proved. show that. Available to plaintiff. further adjudge the offending party or counsel guilty of contempt. Answers to interrogatories under Rule 25. or admissions at least 3 days before the hearing. Section 2. The trial shall be conducted on the controverted facts only. Motion and proceedings thereon. The motion shall be served at least 10 days before the time specified for the hearing. SUMMARY JUDGMENT Based on the pleadings. all intended to show that: a.e. It may. unless the defendant presents a counterclaim. BASES OF SUMMARY JUDGMENT 1. CA 156 SCRA 753 (2005) Trial courts are authorized to grant relief by summary judgment. Mallilin v. and b. Vergara v. supporting affidavits. depositions. the movant is entitled to a judgment as a matter of law. Suelto 156 SCRA 753 (1987) Even if the answer does tender an issue. including attorney’s fees. 3-day notice required. 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. i. 4. Page 57 of . The answer fails to tender an issue or there is an admission of material allegations. fictitious. Section 3. JUDGMENT BY DEFAULT (Rule 9) Based on the complaint and evidence. except as to the amount of damages. Summary judgment for defending party May be file at any time. c. On the merits. there may be issues but these are irrelevant. the judgment sought shall be rendered forthwith if the pleadings. or solely for the purpose of delay. set-up in bad faith. are sham. JUDGMENT ON THE PLEADINGS Based solely on the pleadings Generally available only to the plaintiff. Section 4. and therefore a judgment on the pleadings is NOT proper. Case not fully adjudicated on motion. After the hearing. May be interlocutory or No issues as no answer is filed by the defending party. Form of affidavits and supporting papers Section 6. The adverse party may serve opposing affidavits. as distinguished from an issue which is sham. 3-day notice rule applies. contrived. Affidavits made on personal knowledge. after hearing. There is no genuine issue between the parties.e. Velasco v. or patently unsubstantial. there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. and affidavits. Castillo 156 SCRA 753 (2000) Where the pleadings under a genuine issue i. a summary judgment may still be rendered if the issues tendered are NOT genuine. summary judgment is not proper. an issue of fact the resolution of which calls for the presentation of evidence. This is intended to expedite or promptly dispose of cases where the facts appear undisputed and certain from the pleading’ admissions and affidavits. the court shall forthwith order the offending party or counsel to pay to the other party the amount of reasonable expenses which the filing of the affidavits caused him to incur. if presentation is required. there is no genuine issue as to any material fact. This rule does not vest in the court summary jurisdiction to try the issue on pleadings and affidavits but gives the court limited authority to enter summary judgment only if it clearly appears that there is no genuine issue of material fact. 10-day notice required. On the merits. contrived. Depositions of the adverse party or a third party under Rule 23 3.

The power to amend a judgment is inherent to the court before judgment becomes final and executory. Opinion of the court (findings of fact and conclusions of law) 2. Available in any action except annulment of marriage or legal separation cases. Where the judgment is void. Must state clearly and distinctly the facts and the law on which it I based. In judgments for support. It should be in writing. annulment of judgment. Rule 38 2. even if the purpose is to correct perceived erroneous conclusions of the facts or law. and 3. or the dispositive part of the decision while the opinion gives the grounds for the decision. or for a liquidated sum of money or for declaratory relief. coupled with notice to the parties or their counsel. NOTE: A JUDGMENT is considered RENDERED: the filing of the signed decision constitutes the rendition of a judgment. before finality 1. RULE OF IMMUTABILITY OF JUDGMENT A final judgment cannot be modified. DATE OF FINALITY OF JUDGMENT/ORDER Date of the finality of the judgment or final order shall be deemed to be the date of its entry.appeal b. To make corrections of clerical errors. Judgment is the result. Rule 47 RULE 36 JUDGMENTS. To clarify an ambiguity which is borne out by and justifiable in the context of the decision. The process by which a decision is published.motion for new trial or reconsideration 2. EXCEPTIONS: 1. The judgment or final order shall be entered by the clerk in the book of entries of judgments if no appeal or motion for new trial or reconsideration is filed within 15 days. 2. Available only in actions to recover a debt. Section 1. personally and directly prepared by the judge. after finality 1. It is NOT appealable. Rendition of judgments and final orders REQUISITES OF A JUDGMENT 1. PROMULGATION Page 58 of . Available in any action except annulment of marriage or legal separation cases. not substantial amendments. as by an amendment nunc pro tunc. Signature of the judge JUDGMENT UPON THE MERITS Judgment rendered after consideration of the evidence submitted by the parties during the trial of the case. 3. Disposition of the case (dispositive portion) 3. A judgment based on a compromise otherwise known as JUDICIAL COMPROMISE has the force of law and is conclusive between parties. 2. upon matters submitted to it in an action or proceeding. relief from judgment. This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule. MEMORANDUM DECISION The judgment or final resolution of the appellate court may adopt by reference the findings of facts and conclusions of law contained in the decision of the trial court.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 on the merits. It should contain a dispositive and should be signed by the judge and filed with the clerk of court PARTS OF A JUDGMENT 1. NOTE: Attack of judgment maybe direct or collateral Direct attack a. but which do not appear in the records. or 4. FINAL ORDERS AND ENTRY THEREOF JUDGMENT Final consideration and determination by a court of the rights of the parties. it can always be amended from time to time. made known to the public or delivered to the clerk of court for filing. JUDGMENT NON PRO TUNC A judgment intended to enter into the records acts which had already been done. officially announced.

which terminates such claim. Section 6. 2. 2. Several judgments is proper where the liability of each party is clearly separable and distinct from his coparties such that the claims against each of them could have been the subject of separate suits. The date of finality of the judgment or final order shall be deemed to be the date of its entry if no appeal or MNT or MR The date of finality of the judgment or final order shall be the date of its entry. Annulment of Judgment. upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim. judgment becomes final and executory Court maintains decision Court grants motion: 1.grants new trial REMEDIES AGAINST JUDGMENTS OR FINAL ORDERS Before finality of judgment or final order: 1. Judgment against entity without juridical personality The judgment shall set out their individual or proper names.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 judgment for or against one of them will not necessarily affect the other. made at any stage. It is not proper in actions against solidary debtors. if known. and 3. Relief from Judgment or Final Order. Accepts decision without further contest Within 15 days from notice of judgment: Motion for reconsideration. Petition for Certiorari Losing party may appeal within the remaining period Section 2. and 3. and the Page 59 of . Section 3. The action shall proceed as to the remaining claims.modifies decision. If no appeal is taken or did not avail of remedies. Appeal After Finality of the judgment or final order: 1. Motion for Reconsideration. Section 5. Several judgments SEVERAL JUDGMENT Judgment rendered by a court against one or more several defendants and not against all of them leaving the action to proceed against the others. Action shall proceed as to other claims. or motion for new trial It is proper when more than one claim for relief is presented in an action and a determination as to the issues material to the claim has been made. Judgment for or against one or more of several parties Section 4. Motion for New Trial. Separate judgments PROMULGATION OF JUDGMENT Court Renders Decision Losing Party Filing appeal within 15 days from notice of judgment SEPARATE JUDGMENT Judgment rendered to dispose of one of the several claims for relief presented in an action. or 2.

in case of newly discovered evidence. will have to wait for the judgment and appeal therefrom If denied. 2. the motion for new trial or reconsideration is considered PRO-FORMA or merely a scrap of scratch paper and will not toll the reglementary period for appeal Second motion may be allowed If a new trial is granted the trial court will set aside the judgment or final order Second motion from same party is prohibited If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law. not appealable. (a. have discovered and produced at the trial. Order denying motion for new trial Second motion for new trial based on grounds not existing or available when 1st motion was filed Appeal from the judgment or final order and assign as one of the errors the denial of the motion for new trial Order denying a motion for new trial is not appealable Section 1. must be in writing 2. and which if presented would probably alter the result Required: 1. 4. The damages awarded are excessive. or new evidence is introduced.) affidavit of new witnesses.) duly authenticated documents to be introduced Required: 1. it may amend such judgment or final order accordingly If denied. not appealable. (b. or 3. will have to wait for the judgment and appeal therefrom GROUNDS: MOTION FOR NEW TRIAL Page 60 of . affidavit of merit setting forth the particular facts claimed to constitute a meritorious cause of action. MOTION FOR A NEW TRIAL The grounds are: 1. Mistake or Excusable Negligence (FAME). or both steps are taken. Newly discovered evidence which could not. 2. express reference to testimonial or documentary evidence or to provisions of law RULE 37 NEW TRIAL OR RECONSIDERATION Filed within 15 days from notice of judgment and resolved by the court within 30 days from submission for resolution. Must point out specifically the conclusion of judgment. or 2. Grounds of and period for filing motion for new trial or reconsideration NEW TRIAL It is the rehearing of a case already decided by the court but before the judgment rendered thereon becomes final and executory. 3. affidavit of the existence of FAME and newly discovered evidence. Accident. The evidence is insufficient to justify the decision or final order. Fraud (Extrinsic). whereby errors of law or irregularities are expunged from the record. with MOTION FOR RECONSIDERATION The grounds are: 1. Absent the requirements above. The decision or final order is contrary to law.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 reasonable diligence.

e. EXCUSABLE NEGLIGENCE – depends upon the circumstances of the case. or 2. Action upon motion for new trial or reconsideration The Court may either:: 1.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. Evidence is insufficient to justify the decision or final order 3. Newly discovered evidence FRAUD – Must be extrinsic fraud. Remedy against order denying a motion for new trial or reconsideration is appeal from the judgment Page 61 of . stay the enforcement of such judgment Section 9. Effect of order for partial new trial EFFECTS OF AN ORDER FOR PARTIAL NEW TRIAL 1. it does not point out specifically the findings or conclusions of the judgment as are contrary to law. REQUSITES TO BE CONSIDERED AS NEWLY DISCOVERED EVIDENCE 1. no second motion is allowed. or for reopening of trial. and is merely intended to delay the proceedings or if there is no affidavit of merit. a second motion is allowed but must be based on a ground not existing or available when the first motion was made. Damages awarded are excessive 2. is a prohibited pleading under Section 19 of the Revised Rule on Summary Procedure. "The motion prohibited by this Section is that which seeks reconsideration of the judgment rendered by the court after trial on the merits of the case. Decision is contrary to law Section 2. however. accident. 2. Effect of granting of motion for new trial When motion is granted.g. Fraud. Section 3. ACCIDENT – an event that takes place without one’s foresight or expectation. the original judgment is thereby vacated and the action stands for trial de novo. If presented. shall be used at the new trial taking the same. Resolution of motion Section 5. Fabros 324 SCRA 1 (2000) A Motion for new trial. deny the motion for new trial or motion for reconsideration 3. amend such judgment or final order accordingly Section 4. GROUNDS FOR MOTION FOR RECONSIDERATION 1. could probably alter the result of the action Otherwise it is called forgotten evidence. in good faith. but the recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues. Lucas v. NOTE: New trial. Second motion for new trial Section 6. Extrinsic fraud connotes any fraudulent scheme executed by the prevailing party outside the trial against the missing party who because of such fraud is prevented from presenting his side of the case. or for reconsideration of a judgment. Could not have been discovered and produced at trial despite the exercise of reasonable diligence 3. set aside judgment or final order and grant new trial 2." Section7. Contents of motion for new trial or reconsideration and notice thereof A motion suspends or tolls the running of the reglementary period except when it is pro-forma. applies only where the judgment sought to be reconsidered is one rendered on the merits. making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. NOTE: Motion for reconsideration. however. PRO-FORMA MOTION It is that which does not comply with Rule 15 and Rule 37. MISTAKE – generally refers to mistakes of fact or law where. Discovered after trial 2. or excusable negligence (FAME). mistake. enter a judgment or final order as to the rest of the issues. Partial new trial or reconsideration when issues severable Section 8. This rule. which may be filed during the remainder of the 15-day period. the defendant was mislead in the case.

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Not more than 6 months after such judgment FORM AND CONTENTS OF THE PETITION 1. Uniform procedure for relief from judgments of MTC and RTC After petition is filed. Judgment not yet final. OR OTHER PROCEEDINGS Section 1. Preliminary Injunction is granted upon filing of the petitioner of the BOND in favor of adverse party. ORDERS. Basco v. judgment set aside and court shall proceed as if timely motion for new trial has been granted. The two remedies are exclusive of one another. Such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon the property of the petitioner. Party who has filed a timely motion for new trial cannot file a petition for relief after the former is denied. order. Order to file an answer If petition is sufficient in form and substance to justify relief. NEW TRIAL/ RECONSIDERATION Must be filed within the appeal period. It must be supported by affidavit showing the FAME relied upon. Judgment or final order entered against a party by FAME. Time for filing petition. Petition for relief from judgment. 2. If granted. court shall issue an order requiring adverse parties to file answer within 15 days from receipt of the notice. After answer is filed or expiration of period therefore. it is not a fatal defect to warrant denial of the petition so long as the facts required to be set out also appear in the verified petition. More on equity FAME only Relief from judgment/order on other proceeding A legal right FAME + Newly Discovered Evidence Judgment on final order Section 3. Judgment or final order is rendered and party has been prevented by FAME from taking an appeal For fraud to be extrinsic. court shall hear the petition. Petition for relief from denial of appeal GROUNDS FOR PETITION FOR RELIEF 1. Preliminary injunction pending proceedings PURPOSE This is to preserve the rights of the parties. The affidavit of merit accompanying the petition must also show facts constituting the petitioner’s good or substantial cause of action or defense. such that the defective notice of hearing on petitioner’s motion for reconsideration was due to the day-long brownouts that plagued the metropolis. or 2. The petition for relief must be verified. if granted against denial of appeal. RELIEF FROM JUDGMENT Judgment is final within 60 days after petitioner learns of the judgment to be set aside and within 6 months after such judgment is entered. Section 4. However. An affidavit of merit serves as the jurisdictional basis for the court to entertain a petition for relief. Section 5. the losing party must never have had a chance to controvert the adverse party’s evidence. Section 6. court shall order adverse parties to answer within 15 days from receipt. and 3. counsel’s failure to specify the date and time for hearing of petitioner’s motion for reconsideration should rightly be deemed excusable negligence. CA 326 SCRA 768 (2000) In view of the peculiar circumstance of this case. Proceedings after answer is filed TWO HEARINGS: RULE 38 RELIEF FROM JUDGMENTS. court shall give due course to appeal. or other proceedings Section 2. contents and verification Filed within 60 days after learning of judgment Page 62 of .

remedy is certiorari under Rule 65. On equitable grounds Section 1. Execution upon judgments or final orders WHEN EXECUTION IS A MATTER OF RIGHT 1. on motion. judgment debtor has been paid or otherwise satisfied. 4. w/o any stated facts in support of the conclusion) 2. SATISFACTION AND EFFECT OF JUDGMENTS JUDGMENTS THAT ARE NOT APPEALABLE: 1. issued against the wrong party. Sin perjuico judgments (judgment. 2. 2. FINAL JUDGMENTS Dispose of. Writ of execution improvidently issued. Conditional judgments 3. leaves room for interpretation. When relief sought may be the staying of immediate execution due to FAME. When relief sought may be the allowance of an appeal after the expiration of the period to appeal. Upon judgment or order that disposes of the action or proceeding. or determine the rights of parties Still subject to appeal FINAL AND EXECUTORY JUDGMENTS Becomes final & excecutory by operation of law After lapse of period to appeal and no appeal was perfected. 2. Controversy has never been submitted to the judgment of the court. 3. Injunction. On motion. judgment. Writ of execution varies judgment. WHEN EXECUTION OF FINAL AND EXECUTORY JUDGMENT MAY BE ENJOINED 1. Award. defective in substance. Section 7. It cannot refuse execution and is compellable by Mandamus. Upon filing of a petition for relief from judgment 2. 3. 4. When appeal has been duly perfected and resolved. In the above exceptions. writ has been issued w/o authority. accounting and support 3. Execution is sought against property exempt from execution 5. 6. adjudicate. the appellate court may. receivership. Execution of judgment not a matter of right Execution of judgment a matter of right JUDGMENTS AND FINAL ORDERS THAT MAY BE EXECUTED AS A MATTER OF RIGHT BEFORE EXPIRATION OF TIME TO APPEAL 1. EXCEPTIONS: 1. Forcible entry and detainer 2. a hearing on the merits of the case WHEN TRIAL ON THE MERITS NOT NECESSARY 1. Attack against a judgment which is void for lack of jurisdiction. Procedure 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 cases as if a timely and proper appeal had been made. final order. no further action can be had Page 63 of . by filing a motion with the court of origin submitting true copies of the final judgment or final order sought to be enforced. direct the court of origin to issue the writ. Terms of the judgment not clear. Upon expiration of the period to appeal therefrom and no appeal has been duly perfected. Change in the situation of the parties which makes the execution inequitable or unjust.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 (a) Hearing to determine whether the judgment be set aside (b) If in the affirmative. or obtained through fraud 3. If the court of origin refuses to issue a writ of execution. or resolution of quasi-judicial agencies appealable to CA INTERLOCUTORY ORDER EXECUTED Support pendente lite THAT MAY BE RULE 39 EXECUTION. Incomplete judgments GENERAL RULE: Trial Court has a ministerial duty to order execution of final and executory judgments.

leading the action to proceed against others DISCRETIONARY EXECUTION May issue before the lapse of period to appeal Discretionary upon the court. to clarify ambiguity. award of ownership does not necessarily include possession Section 2. there is inquiry on whether there is good reason for execution SEPARATE/PARTIAL JUDGMENTS Rendered at any stage of the action regarding a particular claim. corrected even after judgment has become final and executory JUDICIAL ERROR Mistake relates to something the court did not consider or pass on. or considered and erroneously decided Cannot be modified must be done in another case/suit (b) When trial court has lost jurisdiction but has not transmitted records of the case to the appellate court. GENERAL RULE: Final and executory judgment cannot be amended or modified • Any amendment w/c substantially affects a final and executory judgment is null and void for lack of jurisdiction EXCEPTION: JUDGMENT MAY BE MODIFIED AS TO: 1. except when a co-defendant is solvent and his liability is subsidiary What are not good reasons: 1) the mere fact that a claim is not secured. CLERICAL ERROR Errors not the result of exercise of judicial functions May be modified. and 3) The good reasons must be stated in a special order. Page 64 of 2. Execution of several. leaving the action to proceed as to the remaining claims EXECUTION AS A MATTER OF RIGHT Issued when period to appeal has already lapsed and no appeal has been perfected Ministerial duty of the provided there are no supervening events REQUISITES FOR EXECUTION PENDING APPEAL 1) On motion by the prevailing party. Examples of good reasons 1) Where education of a person to be supported would unduly be delayed 2) The immediate execution of an order to support is valid 3) The judgment debtor is insolvent. separate or partial judgments SEVERAL JUDGMENTS Rendered against one or more of several defendants. but not moral and exemplary damages. or 3. A final and executory judgment can no longer be amended by adding thereto relief not originally included e. In cases falling under the (6) exceptions above Judgment novated by a subsequent agreement cannot be executed. with notice to the adverse party. . • Support depends not only on the varying conditions affecting the ability of the obligor to pay. • e.to make a present record of an order w/c the court rendered at a previous term but. agreement entered into by the parties other than terms of payment Judgment for support is not final in a sense that it cannot be modified. (c) When trial court has lost jurisdiction and has transmitted records motion for execution pending appeal with appellate court 2.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 4.g. clerical errors or mistakes.g. by inadvertence has not been entered. 2) Good reasons for issuing execution. the trial judge may not rightfully determine the same 3) Mere posting of a bond Award for actual and compensatory damages may be ordered executed pending appeal. but also upon the ever-changing needs of the beneficiary himself. Discretionary execution WHEN ISSUANCE OF WRIT OF EXECUTION IS DISCRETIONARY 1. to enter nunc pro tunc orders . Execution pending appeal (a) While trial court has jurisdiction over the case and is in possession of either the original record or record on appeal. w/o any allegation that the defendant is insolvent or is about to dispose of his properties 2) Where the reason given is that an appeal is frivolous or dilatory.

judgment has been paid . This remedy may be availed of notwithstanding the fact that 1) he has appealed from the judgment. jointly and severally. and 5. Accounting. by another action w/in 10 years from finality of the revived judgment. not from the date of entry REVIVAL OF A JOINT AND SEVERAL JUDGMENT A judgment rendered against several defendants. modification. unless otherwise ordered by the trial court: 1. an aggrieved party may file a special civil action of certiorari under Rule 65 against the order granting execution pending appeal where the same is not founded upon good reasons. 4. or 2) By filing another action w/in 10 years from entry Lifespan of writ of execution= 5 years A revived judgment is again enforceable by motion w/in 5 years and thereafter. Stay of discretionary judgment Stay of execution may be allowed at the discretion of the court by filing a supersedeas bond SUPERSEDEAS BOND It is one filed by a petitioner and approved by the court before judgment becomes final and executory and conditioned upon the performance of the judgment appealed from in case it be affirmed wholly or in part. title of 3rd party is protected. Execution by motion or by independent action. where: . but subsequently sold to a 3rd party Section 6. He can be required to restore the excess realized upon the execution over and above the amount finally awarded Sale is not affected by reversal.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Moral and exemplary damages depends on actual result of the appeal Execution pending appeal is not applicable in land registration proceedings Section 3. Aside from the supersedeas bond. 2. unless writ of execution is absolutely void. or annulment of judgment under Rule 47 is granted How restitution is made. A final and executory judgment or order may be executed: 1) On motion. Section 5. The supersedeas bond guarantees satisfaction of the judgment in case of affirmance on appeal. the 5 year/10 year period must be counted from the end of such term. not the original judgment EXECUTION OF A JUDGMENT BY COMPROMISE WITH A TERM If a compromise agreement w/ a term suspends the enforceability of a final judgment. w/in 5 years from entry. not other things like damage to property pending the appeal. except when there is want of jurisdiction over the subject matter He may be required to surrender the property Creditor may be required to account for the value received by virtue of the sale to the 3rd party. enforceable after their rendition and shall not be stayed by an appeal. Injunction. issue restitution or reparation in an event of a reversal after a petition for relief under Rule 38.execution levied on wrong party Sale of a creditor to himself in a public sale Sale to a creditor. title of 3rd person is protected. Page 65 of .execution upon a void judgment . Receivership. Such other judgments declared to be immediately executory unless otherwise ordered by the trial court. Judgments not stayed by an appeal The following judgments are immediately executory. Effects of reversal. can be revived against one of them only. Support. Section 4. Effect of reversal of executed judgment The trial court may. 3. or 2) has filed a supersedeas bond. COMPLETE SPECIFIC RESTITUTION Sale by sheriff to a 3rd person REVERSAL Modified judgment Creditor may not be compelled to make specific restitution. on motion.

In this case. Issuance.g. Page 66 of . damages. Section 6 This section applies when a party dies after rendition of judgment.may still be enforced by motion even after the 5 year period 2) Special proceedings . or profits due as of the date of issuance of the writ. The court never loses jurisdiction to enforce such.execution will issue 2. Action for a sum of money – execution will NOT issue. The writ of execution must conform to the judgment to be executed.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 WHEN 5/10 YEAR PERIOD SUSPENDED 1) When the enforceability of a final decision is suspended by the court. Section 1 JURISDICTION TO ENFORCE JUDGMENT Continues even after judgment has become final. A judgment of foreclosure of mortgage is enforceable by execution against the executor or administrator whether the judgment obligor died before or after entry of judgment. administrator. for purposes of execution and enforcement Governed by Rule 39. or successorin-interest Death Before Levy: 1. Against his executor. and contents of a writ of execution. ALTER. Execution in case of death of party.e. The motion for execution and the writ of execution must state specifically the amount of interest. real action where the property is located DEFENSES AVAILABLE IN AN ACTION FOR ENFORCEMENT OF JUDGMENT prescription satisfaction of claim counterclaims JURISDICTION TO CHANGE. VENUE OF ACTION FOR ENFORCEMENT OF JUDGMENT personal action where plaintiff resides or defendant resides. at the election of the plaintiff. before or after entry. DEATH OF A OBLIGEE Execution will issue in any case Upon application of his executor. form. costs. the execution sale must take place w/in the 10 year period WHEN 5 AND 10 YEAR PERIODS NOT APPLICABLE 1) Judgment for support . administrator. aside from the principal obligation Special sheriffs for the service of writ of execution are not authorized by law. the judgment obligee should file claim against the estate of the judgment obligor under Rule 86. otherwise it is null and void. Action for recovery of real or personal property or any lien . land registration proceedings NOTE: An action for support does not prescribe and may still be enforced by motion even after the lapse of 5 year period since the obligation is a continuing one. MODIFY JUDGMENT Terminates when the judgment becomes final Governed by Rule 39. 2) When the 5 year period is interrupted or suspended by agreement of the parties 3) When the judgment creditor institutes supplementary proceedings to the execution 4) When delays are caused by judgment obligor’s own initiatives and for her advantage A valid execution issued and levied w/in the 5 year period may be enforced by sale even after the lapse of the said period The levy is the essential act by which the property is set apart for satisfaction of judgment However. or successorin-interest An appeal is the remedy for an order denying the issuance of a writ of execution.does not prescribe . rents. Death After Levy: execution will issue since the property is already separated from the estate of the deceased and is deemed in custodia legis. Section 8. DEATH OF A OBLIGOR Section 7.

The on execution creates a lien in favor of the judgment obligee over the right. or if ‐ not practicable. to the sheriff. certified bank check payable to the judgment obligee. vesting title . 3) execution sought to be enforced against property exempt from execution. or writ issued without authority Section 9. the court may direct the act to be done at the cost of the disobedient party . 2) change in the situation of the parties making execution inequitable and unjust. officer shall levy 1st on personal property. delivery of deeds. levy on a barge by registration w/ Philippine Coast Guard (constructive) Section 10. otherwise officer shall oust such persons 4) Removal of improvements on property subject of execution . 6) writ of execution is improvidently issued. royalties. and restore possession to judgment obligee. Execution of judgments for money. mortgagee. not capable of manual delivery in the possession or control of 3rd parties Notice served on 3rd party (garnishee) ‐ GENERAL RULE: All property belonging to judgment obligor not exempt from execution may be attached. commissions and other personal property. defective in substance. subject to liens and encumbrances then existing. issued against the wrong party. how enforced 3 WAYS TO ENFORCE A JUDGMENT FOR MONEY 1. Execution of judgments for specific act SPECIFIC ACTS 1) Conveyance. then on real property The sheriff shall sell only property sufficient to satisfy the judgment and other lawful fees. satisfaction by levy LEVY An act by which an officer sets apart or appropriates a part or whole of the property of the judgment debtor for purposes of the execution sale. or otherwise 3) Unused balance of an overdraft account (credit not subject to garnishment) Levy on personal property may be actual or constructive e.officer shall not destroy. including bank deposits. Immediate payment on demand ‐ judgment obligor shall pay in cash. or other specific acts. 4) controversy has never been submitted to the judgment of the court. to a fiduciary account 2.if party fails to comply within the time specified. garnishment of debts and credits Page 67 of GARNISHMENT An act of appropriation by the court when property of debtor is in the hands of third persons.g. or any other form of payment acceptable to the latter ‐ payment made to the judgment obligee or his representative. if not exercised.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 GROUNDS FOR QUASHING A WRIT OF EXECUTION: 1) writ of execution varies judgment. or other credits. demolish. 5) terms of judgment are not clear and there remains room for interpretation. title. or remove improvements except upon special order of the court . The officer shall levy upon properties of the judgment obligor not otherwise exempt from execution Judgment obligor exercises option to chose w/c property levied upon. EXCEPTIONS: 1) Usufruct 2) Ascertainable interest in real estate as mortgagor. and interest of the judgment obligor in such property at the time of the levy.officer shall demand person to peaceably vacate property w/in 3 working days. judgment debt has been paid.Real or personal property situated w/in the Philippines: court in lieu of conveyance may give order divesting title and may vest it in others 2) Sale of real or personal property 3) Delivery or restitution of real property . 3. or if not present. financial interests. ‐ The sheriff may levy on debts due to debtor.

deliver – the sheriff will take possession and deliver it to the winning party. It requires the performance of any other act than payment of money. clothing. Section 239. wages. Remedial Law Compendium Vol. except jewelry 5) household furniture and utensils necessary for housekeeping ≤ P100K 6) Provisions for individual or family use sufficient for 4 months 7) Professional libraries and equipment 8) One fishing boat and accessories ≤ P100K used in livelihood 9) Salaries. and 177) 10) Copyrights and other rights in intellectual property under the former copright law (PD 49 cf. F. or the sale or delivery of real or personal property Failure to comply with special judgment under Section 11 is punishable as contempt by imprisonment Section 12. cows. shelter. 447-448). or annuities accruing out of any life insurance 12) Properties specially exempt from execution OTHER PROPERTIES SPECIALLY EXEMPT FROM EXECUTION 1) Property mortgaged to DBP (Section 26. ORDER OF DEMOLITION COULD BE ISSUED AFTER THE 5 YEAR PERIOD but writ of execution must be served w/in 5 years order of demolition ancillary to writ Certiorari is available if requirements for issuance of order of demolition are not followed Section 11. 1. 3. RA 8293) 11) Bonds issued under RA 1000 (NASSCO v. after judgment obligor failed to remove the same 5) Delivery of personal property officer shall take possession of the same and deliver it to the judgment oblige • Failure to comply with specific acts under Rule 39 Sec. except for debts incurred for food. 2. privileges.3. NCC) 9) Benefit payments from the SSS (Section 16 RA 1161 as amended by PDs 24. or homestead. A demolition order from the court is required to effect removal of an improvement constructed by the defeated party. and medical attendance (Art. comply – the court can appoint some other person at the expense of the disobedient party and the act shall have the same effect as if the required party performed it • No time limit w/in which an order of demolition should be carried out. Execution of special judgment SPECIAL JUDGMENT A special judgment is one that can be complied with only by the judgment obligor himself. 10 is not necessarily punishable by contempt. employment. land necessarily used in connection therewith 2) ordinary tools and implements used in trade. carabaos. benefits.. 65.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 special order issued upon motion. subject to limitations (Section21. if a party refuses to: 1. Page 68 of . However. or other beast of burden necessarily used in his ordinary occupation 4) necessary clothing and articles for ordinary personal use. Effect of Levy on execution as to third persons Section 13. Property exempt from execution PROPERTIES EXEMPT FROM EXECUTION 1) family home. vacate the property – the sheriff must oust the party. pp. or earnings as are necessary for support of family w/in 4 months preceding levy 10) Lettered gravestones 11) Monies. with limitations (RA 4917) 8) Labor wages. work animals. CIR L-17874 31 August 1963) (Regalado. 8th ed. and farm implements of agricultural lessees. defeated party is given reasonable period to look for another place. 1708. CA 458) 2) Property taken over by Alien Property Administration (Section 9[f]. US Trading With The Enemy Act) 3) Savings of national prisoners deposited with the Postal Savings Bank (Act 2489) 4) Backpay of pre-war civilian employees (RA 304) 5) Philippine Government backpay to guerillas (RA 897) 6) Produce. or livelihood 3) 3 horses. RA 6389) 7) Benefits from private retirement systems of companies and establishments.

Vindicate his claim in a separate action .000: notice posted in 3 public notice posted in 3 places for 20 days public places for such time as may be reasonable considering the . The sheriff may or may not require the judgment obligee to file a bond. Liable in solidum because liability is joint and solidary Want of notice does not invalidate the execution sale where purchaser is innocent and no collusion appears (buyer in good faith) Section 16.If > 50.other personal notice posted in 3 public property: notice places for 20 days posted in 3 public places for not less than 5 days . or right of possession thereof. File a claim for damages against the bond .amount of bond not less than value of property . File a separate action for damages against the sheriff (if no bond filed) 3.perishable property: . INDEMNITY BOND FILED Action for damages brought against the principal and sureties on the bond Sheriff not liable for damages Sheriff bound to keep property on behalf of judgment obligee NO INDEMNITY BOND FILED Action for damages may be brought against sheriff himself Sheriff liable for damages Sheriff not bound to keep property under levy REMEDY OF THE CREDITOR 1.sheriff not liable for damages if bond is filed 2.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 14. File a claim for damages against 3rd party in the same or separate action . Notice of sale of property on execution REQUISITES FOR REQUISITES FOR NOTICE OF SALE OF NOTICE OF SALE OF PERSONAL REAL PROPERTY PROPERTY . and should serve such affidavit upon the sheriff and a copy thereof to the judgment obligee.If ≤ 50.In all cases. at least 3 days before the sale. written notice of the sale shall be given to the judgment obligor.based on the ground that 3rd party claim is frivolous or plainly spurious REMEDY OF THE 3RD PARTY 1. EFFECTS OF AN EXECUTION SALE WITHOUT THE REQUIRED NOTICE 1.000: Publication once a week for 2 character & condition consecutive weeks and of the property . except as provided in paragraph (a) hereof where notice shall be given at any time.claim must be w/in 120 days from filing of bond Page 69 of . File a bond to indemnify 3rd party complainant . so as long as the sheriff has the possession of the property levied upon. Return of writ of execution Writ of execution is returnable to the court after judgment it satisfied Sheriff shall report to the court w/in 30 days after receipt and every 30 days until the judgment is satisfied in full Lifetime of writ of execution – 5 years from entry of judgment The rules do not provide any lifetime for a writ of attachment unlike writ of execution Section 15. or before the property is sold under execution WHAT IS THE PROCEDURE FOR A 3RD PARTY CLAIM 3rd party should make an affidavit of his title thereto. Proceedings where property claimed by third persons 3RD PARTY CLAIM A claim by any person other than the judgment debtor or his agent on property levied on execution PURPOSE OF 3RD PARTY CLAIM 1) To recover property levied on by sheriff (although 3rd party can vindicate claim in a separate action) 2) To hold sheriff liable for damages for the taking or keeping of such property WHEN TO FILE A 3RD PARTY CLAIM At any time. Sheriff and creditor are joint tortfeasors 2.no intervention allowed since judgment final & executory 2.

no more sale shall be made and any excess shall be promptly delivered to the judgment obligor or his authorized representative. Adjournment of Sale If both obligee and obligor agree in writing. actual damages Section 18. who issued the writ of execution Officer conducting sale. punitive damages to any person injured thereby = P5000. Conveyance to purchaser of personal property capable of manual delivery After purchaser pays the purchase price. The judgment creditor cannot be compelled to file a bond because he is at complete liberty to do so.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 The sheriff is at complete liberty to suspend or not to suspend execution if the judgment creditor does not file a bond. unless otherwise directed by the judgment or order of the court. 2. a sale of less than whole would be sufficient to satisfy debt Mere inadequacy of price is not material if there is a right of redemption. Shocking inadequacy of price may be ground for setting aside sale Who has jurisdiction to set aside execution sale? Court w/c rendered judgment that became final and executory has exclusive jurisdiction After sufficient property has been sold to satisfy the execution. or removing or defacing notice PERSONS LIABLE UNDER SECTION 17 1) Officer selling without notice 2) Any person willfully removing or defacing notice posted (e. when it appears that a larger sum would have been realized from a sale in parcels. to start at the exact time fixed in the notice Sale of real properties must be made in the province where the same are situated Purpose is to obtain the best price PERSONS PROHIBITED FROM BUYING Judge. Refusal of purchaser to pay Section 21. sale may be adjourned to any date and time agreed upon Without such agreement. the sheriff acts at his own risk if he keeps the property (can be liable for damages). who may direct manner and order of sale All sales of property under execution must be made: 1. at a public auction 2. Adjournment = waiver of publication of another notice requirement Section 23. or 2. Penalty for selling without notice. Judgment obligee as purchaser Officer may sell again the property to the highest bidder refusing purchaser may be liable for amount of loss occasioned by such refusal Refusing purchaser may be punished for contempt Officer may reject subsequent bid of refusing purchaser If judgment obligee is the successful bidder BID ≤ JUDGMENT IF BID > JUDGMENT Judgment obligee not required to pay bid Judgment obligee required to pay excess Section 22. No sale if judgment and costs paid If judgment obligor paid the amount of judgment NO writ of execution may be issued or implemented. or his deputy EFFECT OF SALE OF REAL PROPERTY IN MASS GENERAL RULE: Valid EXCEPTION: 1. Section 20. Without an indemnity bond. the sheriff must deliver the property capable of manual delivery to the purchaser If desired the sheriff shall execute and deliver a certificate of sale No right of redemption in sales of personal property on execution Page 70 of . How property sold on execution. notice posted in 3 public places) What is the liability? 1. Section 17.g. sale may be adjourned from day to day if it becomes necessary to o so for lack of time. to the highest bidder 3. Section 19.

Once he redeems. through no fault of redemptioner. Personal Property – None. successive redemptions. heirs.g. interest and claim of judgment obligor.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 24. A surety is NOT a successor in interest By paying the debt. Certificate of sale where property claimed by 3rd person The certificate of sale to be issued shall make express mention of the existence of such third-party claim. Auction sale retroacts to date of levy E. Real Property – there is a right of redemption WHO MAY REDEEM? JUDGMENT DEBTOR Judgment obligor. Rule 39 allows certified bank check If check is dishonored. The auction sale retroacts to the date of the levy. judgment. Section 27. and amounts payable on. joint debtors) When? Within 1 year from the date of registration of the certificate of sale REDEMPTIONER One who has a lien by virtue of another attachment. of course. or 2.g. 9. Purchaser of property registered under Torrens system acquires the same free from liens or encumbrances not noted thereon. he stands in the place of the creditor. the officer must execute and deliver to purchaser certificate of sale (symbolic delivery) Section 25. not obligor Right of redemption cannot be levied on by judgment creditor The judgment debtor may. Further redemption allowed. The fact that the 3rd party claim was presented 1 day before the execution sale is immaterial. as redemption is long as each redemption is allowed made w/in 60 days after the last Payment – how and to whom made Tender of redemption money may be made to purchaser or sheriff If tender to sheriff – duty to accept Medium of payment Cash. Within 1 year from the date of registration of the certificate of sale. Time and manner of. Conveyance to purchaser of personal property not capable of manual delivery For personal property not capable of manual delivery. a 3rd party claim was filed after the levy. Who may redeem real property so sold RIGHT OF REDEMPTION: 1. redemption invalid If check became stale for not being presented. sale is absolute . Conveyance of real property. 2) Price paid (per lot) 3) Whole price paid 4) Statement of right of redemption 1 year from date of registration of certificate of sale ORDINARY SALE ON EXECUTION Need not be confirmed Right of redemption Purchaser acquires upon expiration redemption period title of EXECUTION IN JUDICIAL FORECLOSURE OF MORTGAGE Needs judicial confirmation No right of redemption (except where mortgagee is a bank) Purchaser acquires title after judicial confirmation of sale 2. etc. legally sell his right of redemption Section 28. redemption valid Page 71 of Purchaser acquires only right. assignee. certificate thereof given to purchaser and filed with registry of deeds CERTIFICATE OF SALE MUST CONTAIN 1) Description of real property sold. the sale is also valid. or his successor in interest (e. transferee. or mortgage on property SUBSEQUENT to the lien under which the property was sold When? 1. notice to be given and filed PERIOD OF REDEMPTION JUDGMENT REDEMPTIONER OBLIGOR Judgment Obligor 1st redemptioner has 1 year to has 1 year from redeem registration of 2nd redemptioner has 60 to redeem after 1st redemption certificate of sale 3rd redemptioner has 60 days after 2nd. Within 60 days from the last redemption by another redemptioner. The purchaser is not entitled to possession during the period of redemption. title. although Sec. no further even after lapse of 1 year. Section 26. If the levy is valid.

Amount of lien. The Person to whom redemption was made must execute and deliver to the judgment obligor a certificate of redemption. earnings. income and fruits derived still belong to the debtor.Same as . by whom executed or given Upon expiration when no redemption has been made within 1 year. expenses. Deed and possession to be given at expiration of redemption period. Within 1 year purchaser acquires only the rights. Payments may be made redemptioner.Same as judgment obligor redemptioner . no further redemption is allowed. 3) Make necessary repairs to buildings thereon Section 32. During the period of redemption. possession 2. If interest + purchaser also assessment creditor w/ prior or taxes lien If he redeems from If he redeems from redemptioner .Redemption . waste restrained During the period pending the redemption. to whom payments on redemption made If judgment obligor redeems. title. or sheriff. certified bank checks. the court issues an order to restrain the commission of waste on the property by injunction.Purchase judgment obligor price + 1% . WHAT IS NOT COMMISSION OF WASTE 1) Use in the same a manner previously used. showing amount due on lien Failure to produce proof by redemptioner is waived by refusal on other grounds.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Amounts Payable On Redemption JUDGMENT REDEMPTIONER OBLIGOR If he redeems from the If he redeems from the purchaser: purchaser: . must serve: . within the period to redeem.must serve copy of judgment or final order. and a certificate to be delivered and recorded thereupon. reimbursement for improvements Section 33. Redemption can be paid in other forms than cash. AND . Upon expiration when no redemption has been made within 6 months. all rents. w/ interest interest + assessment or taxes If based on Mortgage or other lien. or any assignment. Manner of using premises pending redemption. receive the rents. to the purchaser. Rents. Proof required of redemptioner PROOF REQUIRED JUDGMENT OR FINAL ORDER No proof required Right of redemption appears on record REDEMPTIONER If based on judgment or final order: . purchaser is entitled to conveyance and possession of property. the purchaser or redemptioner is not entitled to: 1. Effect of redemption by judgment obligor. the purchaser now has his own right and Page 72 of Section 29.affidavit. 2) Use in the ordinary course of husbandry. certified by clerk of court . Validity of redemption not affected by failure to present proof If person to whom redemption was offered accepts without requiring proof – redemption valid Section 31. A formal offer to redeem is not necessary where the right to redeem is exercised through the filing of a complaint to redeem in the courts. After 1 year. and even checks. interest and claim of judgment obligor to property. and income of property sold on execution. Section 30. earnings and income of property pending redemption During the period of redemption. The rule is construed liberally in allowing redemption (aid rather than to defeat the right) and it has been allowed to in the case of a cashier’s check.memorandum of record. last redemptioner is entitled to conveyance and possession of property.Amount of liens held by last redemptioner prior to price + 2% his own. 3.

and judgment is still unsatisfied. revival of judgment If purchaser fails to recover possession. Enforcement of attendance and conduct of examination A party or other person may be compelled by an order of subpoena. requiring him to pay his debt not to the judgment debtor but to the creditor (a form of involuntary novation). investigate income. 36 – examination of judgment obligor’s property 2) Sec. or 3rd party vindicated claim. Right to contribution or reimbursement If property is executed against several persons. or is indebted to the debtor court may order such person to be examined to bind the credits due to debtor CITATION The garnishee becomes a forced intervenor. 37 – examination of judgment obligor’s debtor (garnishee) 3) Sec. to be applied to the satisfaction of the judgment Investigation of income and expenses if it appears earnings more than necessary for support of family court may order that he pay judgment in fixed monthly installments otherwise contempt Page 73 of of Section 34. or 2) have original judgment revived for whole price w/ interest Section 35. Court may order property of judgment obligor. PROCEEDINGS SUPPLEMENTARY TO EXECUTION The proceedings are to aid judgment creditors in discovery of debtor’s property and its application to the satisfaction of judgment. Writ of possession may be enforced against judgment obligor. Failure to obey such order or subpoena may be punished for contempt. the creditor may ask the court to require the debtor to appear and his property or income be examined . 42 – sale of debtor’s interest in real estate 8) Sec. expenses. Obligor may pay execution against obligee Persons indebted to the debtor may pay sheriff. court may order creditor to institute action against such person to pay debt Section 37. Examination of judgment obligor when judgment unsatisfied Upon return of writ of execution. Order for application of property and income to satisfaction of judgment. earnings order fix monthly payments 6) Sec. purchaser may. 43 – if garnishee denies debt.but NOT against persons whose right possession is adverse to the latter 5) Sec. 41 – appoint receiver 7) Sec. successors-in-interest . evicted. Examination of obligor of judgment obligor Any person or corporation who has property of the debtor. 39 – judgment obligor’s debtor may pay sheriff Sheriff’s receipt shall mean a discharge for the amount paid and shall be credited by the obligee on execution Section 40. judgment reversed. 38 – enforcement of attendance and conduct of examination (punishable by contempt) 4) Sec. 40 – order to apply to obligor’s property in the hands of another. or money due him. It is at this time that the writ of possession is issued. Section 39. Recovery of price if sale not effective. It is to compel the disclosure of any property that is not exempt from execution 1) Sec. in the hands of either himself or another. and more than due proportion has been satisfied one who pays may compel contribution from the others If surety pays principal he may compel repayment from the Section 36. on motion or in a separate action: 1) recover from creditor price paid w/ interest. to attend before the court or commissioner to testify as provided in Sections 36 & 37.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 acquires right to the property. property exempt from execution. or so much w/c is not returned to judgment obligor. Section 38.

may punish disobedience of such order as for contempt. Proceedings when indebtedness denied or another person claims property.if principal not notified.Court may direct money to be paid to the court. or otherwise) Receiver may be ordered to sell and convey real estate or interest therein Section 43.surety should notify principal and request him to join in defense. 2. the debtor who is compelled to pay does NOT lose right to appeal. Section 42.If tender refused.If tender refused. TENDER OF PAYMENT OF JUDGMENT TENDER OF PAYMENT OF CONTRACTUAL DEBT . he may set up defenses in a subsequent action PRINCIPAL AND SURETY JOINTLY SUED . not necessary to make consignation .surety should file cross-claim for reimbursem ent PRINCIPAL SUED ALONE . If Judgment obligor has interest in real estate (as mortgagor or mortgagee. Appointment of receiver The sheriff is not a proper person to be appointed as receiver. surety must still file separate action for reimbursement but principal can no longer set up defenses w/c he could have set up in the original action . must consign payment w/ court Section 46. Sale of ascertainable interest of judgment obligor in real estate. When principal bound by judgment against surety SURETY SUED ALONE . Person or corporation having property of obligor or indebted to him.principal has no cause of action against surety The principal is bound by the same judgment from the time he has notice of the action or proceeding and Page 74 of . Entry of satisfaction of judgment by clerk of court Section 45.principal also bound by judgment . Court cannot make a finding that 3rd person has in his possession property belonging to judgment debtor or is indebted to him and to order said person to pay amount to judgment creditor Execution may issue only upon an incontrovertible showing that 3rd party holds property of judgment obligor or is indebted to him Section 44. claims an interest in property adverse to him or denies debt Court may: 1. or 3. and order entry of satisfaction of judgment . Entry of satisfaction with or without admission Judgment obligee is obliged to execute and acknowledge admission of satisfaction of judgment only if judgment obligor demands ENTRY OF SATISFACTION OF JUDGMENT-WHEN MADE 1) upon return of execution satisfied 2) upon filing of admission of satisfaction by creditor 3) upon indorsement of such admission 4) upon order of the court Creditor who compels satisfaction of judgment loses right of appeal. Debtor who voluntary satisfies judgment loses right to appeal.judgment may be rendered against them jointly & severally . authorize judgment obligee to institute action against person or corporation for recovery of such interest or debt. forbid transfer or other disposition of such interest or debt w/in 120 days from notice of order. But.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 41.

to join the defense. foreign judgment is presumed to be valid and binding. political.Refers to same action.Absolute bar to subsequent action .identity of parties. SM only Section 48. 2) Against a person – presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. collusion. SM.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 has been given an opportunity at the surety’s request. in all other actions or suits in the same or any other judicial tribunal.identity of parties. However. Section 47.judgment merely an estoppel only as to those matters in issue or controverted Paragraph (b) refers to as “bar by former judgment or Res Judicata in judgments IN PERSONAM RES JUDICATA It is a matter adjudged. or clear mistake of law or fact. claim or demand . only prima facie evidence of the death of the testator or intestate Condition. 2) Court has jurisdiction over subject matter and parties. an existing final judgment or decree rendered on the merits is conclusive upon the rights of the parties or their privies. on the points and matters in issue in the first suit.Refers to another action between same parties but involves different claim . fraud.there is finality as to the claim or demand in controversy. Test to determine IDENTITY OF CAUSE OF ACTION Whether the same evidence would sustain both causes of action NOTE: Res Judicata applies only between adverse parties in a former suit. RES JUDICATA OR BAR BY FORMER JUDGMENT . Page 75 of . JUDGMENT OR FINAL ORDER Against A specific thing Probate of a will or administration of the estate of a deceased person In respect to the personal. subject matter. ENFORCEMENT OF FOREIGN JUDGMENTS By filing an action based on said judgment. not only to matters presented. It is based on the principle that parties should not litigate the same matter more than once. but as to any other admissible matter w/c might have been presented . status. Paragraph (a) refers to rule on Res Judicata in judgments IN REM. or legal condition or status of a particular person EFFECT: CONCLUSIVE AS TO the title of the thing Will or administration. notice. EFFECT OF A FOREIGN ORDER OR TRIBUNAL: 1) Against a specific thing – conclusive upon title to the thing. 4) Identity of parties. or relationship of the person CONCLUSIVENESS OF JUDGMENT Issues are actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action. RECOGNITION OF A FOREIGN JUDGMENT Raise the foreign judgment as res judicata in the defense (not in a separate action). In both instances. the judgment may be repelled by evidence of want of jurisdiction. 3) Former judgment or order was on merits. Effect of foreign judgments or final orders. NOT between co-parties Paragraph (c) is known as “conclusiveness of judgment” or preclusion of issues or rule of AUTER ACTION PENDANT . and cause of action between first and second action. cause of action ESTOPPEL BY JUDGMENT OR CONCLUSIVENESS BY JUDGMENT . REQUISITES OF RES JUDICATA 1) Former judgment or order must be final and executory. Effect of judgment or final orders.

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