Remedial Law Review

Civil Procedure Prof. Antonio R. Bautista

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This is the Remedial Law Reviewer for the class of Prof. Antonio R. Bautista, as updated by the Class of 2001. This reviewer is now CivPro 1997 Rules-compliant, and takes into account the pertinent substantive laws that have been passed as of this date, as well as Sir’s latest comments in his lectures. Please be advised, however, that due to time constraints, this reviewer was not edited in its entirety. There may therefore be errors – typographical or substantial – that have gone unchecked. While reading this reviewer, kindly crossreference with the 1997 Rules of Civil Procedure, your own lecture notes, and other legal materials which you trust. The updated, clean version will be released before April 2001 in time for Bar review. Promise.

I.

INTRODUCTION
Remedial law is also known as adjective lawyer or procedural law. Prof. Bautista likes to call remedial law as the lawyer’s law – the rules of the lawyer’s game. Even if you are not in litigation, one needs to know remedial law. For example, in contract drafting, it really helps to know remedial law as the lawyer can anticipate how the contract would stand in court. In fact, the great disparity of lawyers lies largely due to their knowledge or lack of knowledge of remedial law. The goals of remedial law are: 1. uniformity 2. stability 3. predictability Our law provides for the so-called Katarungang Pambarangay. In these proceedings, anyone can appear except lawyers. Prof. Bautista thinks this can be challenged on the ground that it violates the Equal Protection Clause. Many of the provisional remedies found in the Philippine Rules of Court have been declared unconstitutional in the U.S. In the Philippines, it is the Supreme Court which promulgated the Rules of Court. In the U.S., it is Congress which does so. Therefore, it seems highly unlikely that our Supreme Court will declare their own Rules of Court as unconstitutional. In remedial law the following laws are important: 1. Rules of Civil Procedure 2. BP 129 3. Judiciary Act of 1948 – many of these provisions have not been repealed In San Miguel v. Sec. of Labor, the Supreme Court said that the Supreme Court cannot be deprived of its certiorari jurisdiction. In the case of St. Martin Funeral Homes and Fabian v. Desierto, the Supreme Court said that the Supreme Court’s jurisdiction cannot be increased. The Constitution has given the Supreme Court rule-making power.

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Remedial Law Review
Civil Procedure
Brief Historical Outline of Remedial Law General Order 58 – The U.S. uprooted the Spanish procedure and replaced it with their own rules since the Spanish system was so inefficient and abusive. Ist few acts of Philippines Commission was Act 190. This act overhauled procedural law. It codified the rules on civil and special procedure.

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Prof. Antonio R. Bautista

1935 Constitution – vested rule making power in the Supreme Court; there was a transitory provision which provided that until the Rules of Court have been promulgated, the existing statutes (Gen Ord. 58, Act 190 and some other statutes) shall first constitute the temporary Rules of Court. 1940 – Ist Rules of Court (Rule-making power cannot modify substantive rights) 1964 – next revision 1985 – Rules on Criminal Procedure 1988 – Changes on the Rules on Evidence 1997 – Rules on Civil Procedure 2000 – New Criminal Procedure The Supreme Court from time to time, amends the rules on a case to case basis. Furthermore, the Supreme Court issues circulars.

II.

JURISDICTION

It is hard to conceive how any system of law which institutionalizes a mode of settling disputes cannot have a concept of jurisdiction. It is a fundamental concept. The concept of jurisdiction is not easy to grasp. It is elastic and admits of many meanings. It is elusive. It is sometimes confused with mootness, standing, ripeness, etc. Furthermore, lack of cause of action is often times confused with lack of jurisdiction over the subject matter. Generally, a judgment which is final is not vulnerable to attack. If a court rendered judgment without subject matter jurisdiction, the judgment is void ab initio. Thus the voidness can be raised collaterally. In fact, one of the grounds for annulment of judgment under Rule 47 is lack of jurisdiction over the subject matter. In one case, the Supreme Court said that jurisdiction over the subject matter is the power to hear and decide a case with binding and enforceable effect. Without this binding and enforceable effect, the proceedings would be useless. There is a distinction between the competence of the court to entertain an action and the power to render a judgment on the merits. One outstanding feature of subject matter jurisdiction which is stressed is that it is conferred by the legislature. Thus, courts cannot be vested or ousted by jurisdiction over the subject matter by the action of the parties. Sec. 2, Art. VIII of the 1987 Constitution provides that the Congress shall have the

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Remedial Law Review
Civil Procedure Prof. Antonio R. Bautista

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power to create courts. Thus, it is only Congress which has the power to sole power to do so. Therefore, Congress has plenary power to create courts and define jurisdiction. However, there are limitations. Congress cannot diminish the jurisdiction of the Supreme Court. Neither can Congress undermine the security of tenure of the judges. Judicial power is vested in the courts. How much judicial power is vested in these courts is up to congress. Which courts exercise which judicial power is also up to Congress. Features of subject matter jurisdiction: 1. conferred by law 2. can be raised at anytime 3. to be determined by the allegations of the case 4. determined by the allegations in the pleadings, not the evidence 5. sometimes is territorial Problem: A shipment of goods by sea from HongKong to Manila is covered by a bill of lading. The consignee is unhappy with the shipment. He brings an action against the shipper and the carrier in Manila. The stipulation in the contract provides that cases should be filed in HongKong. The defendants filed a Motion to Dismiss on the ground that the Manila court has no jurisdiction. Rule on the Motion to Dismiss. Answer: Denied. Jurisdiction is vested by law, and the parties cannot stipulate otherwise. Prof. Bautista however adds that there is a case in Private International Law which says that in a multi-state transaction, contracting parties may stipulate the choice of forum. Problem: A shipment of goods by sea from HongKong to Manila is covered by a bill of lading. The consignee is unhappy with the shipment. He brings an action against the shipper and the carrier in Manila. The stipulation in the contract provides for an arbitration clause. The defendants filed a Motion to Dismiss on the ground of failure to comply with condition procedure – arbitration. Rule on the Motion to Dismiss. Answer: Denied. If the plaintiff files a case which is premature or fails to exhaust administrative remedies, then the case can be dismissed for failure to state a cause of action. Since there is no cause of action, the case is not yet ripe for adjudication. When the plaintiff fails to resort to Katarungang Pambarangay according to Supreme Court Administrative Circular 14-93, the case can be dismissed for failure to state a cause of action or failure to comply with condition precedent. However, the Supreme Court also said that the proceedings in court can also be suspended. Thus, according to Prof. Bautista, Bengzon v. Chan is probably still good law. If there is no resort to arbitration before the case is brought to court, the court may suspend the case applying Supreme Court Administrative Circular 14-93. What does lack of capacity to sue contemplate? The general rule is that the court’s lack of jurisdiction over the subject matter can be questioned. There is an exception – estoppel by laches as held in the Tijam case. According to Prof. Bautista however, the Tijam case has very peculiar facts. The effect was that the parties conferred jurisdiction by themselves.

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33 (1) of BP 129 as amended by RA 7691. Original and Concurrent. . Court of Appeals.C. RTCs and MTCs please see pages 48-53 of Regalado. Answer: Denied.000. R. can the plaintiff go directly to the Supreme Court? No.000.000. in cases where the claim for damages is the main case of action. the amount of such claim shall be considered in determining the jurisdiction of the court. Jurisdiction of the courts is based on amounts. Lower courts have the jurisdiction to rule on the constitutionality of statutes. habeas corpus and injunction. its subdivision or instrumentality thereto Compiled by Remedial Law Class of 2001. However. how do we determine the region. Actual damages are worth P300. The total amount prayed for is P 410. prohibition.000. applies to cases where the damages are merely incidental to or a consequence of the main cause of action. Pano. . 7961 which took effect on April 15. Attorney’s fees are worth P 50. Defendant files a Motion to Dismiss for lack of jurisdiction over the subject matter. Rule. 1994 expanded the jurisdiction of MTCs. or one of the causes of action. Jurisdiction is determined by the allegations in the complaint and not the evidence presented. quo warranto. However there are exceptions to Katarungang Pambarangay: 1. Interest is worth P60. Do you have to go through Katarungang Pambarangay? Answer: Yes. the plaintiff is only entitled to P100.A. Adoption and matrimonial cases are to be filed with the RTCs. Plaintiff must go through the process in the barangay of the defendant. For an outline of the Jurisdiction (Original and Exclusive. If one wants to challenge the constitutionality of a statute. Effectively. The Court of Appeals has exclusive and original jurisdiction over actions for annulment of judgments of the RTCs The Court of Appeals has the power to try and receive evidence in cases where a new trial is sought on the ground that there is newly discovered evidence and in cases where the judgment of the RTC is being annulled.000. Antonio R.000. The complaint is lodged with the RTC. where 1 of the parties is the government. Now. In Administrative Circular 9-94. The defendants reside in Q. Is the region the place where the act takes place or where the person to be enjoined is located? See Dagupan Electric v.000. Problem: Complaint prays for sum of money. these RTCs cannot be enjoined if the matter is outside their region. Problem: Plaintiff files an action to collect P10. and Appellate). 21 (1) of BP 129.000. mandamus. 19 (8) and sec.000. the Supreme Court in the implementation of RA 7961 clarified that: “The exclusion of the term ‘damages of whatever kind’ in determining the jurisdictional amount under sec. Where do you file? Answer: No answer given. Bautista 4 Under sec. Problem: Plaintiff files an action for ejectment and recovery of P1. But in truth and in fact.000. RTCs can issue writs of certiorari.000. Where do you file the case? Answer: File with the RTC. of the Supreme Court. Problem: The complaint prays for damages worth P1.Remedial Law Review Civil Procedure Prof.

Sandiganbayan b. quo warranto and habeas corpus against person and entities other than courts and administrative agencies whose decisions are appealable to the SC or the CA 2. Sandiganbayan Compiled by Remedial Law Class of 2001. Although BP 129 did not repeal directly any jurisdiction of the SC. You cannot remove that from us. The SC said that it cannot be. fall within the exclusive. The jurisdiction of the SC by other mode may be removed by law. how did it affect the jurisdiction of the SC? A : Now.) Problem: Plaintiff files an action to foreclose a chattel mortgage which secured a loan of P50. DOLE and BLR Q : What cases. Which court do you file? Answer: No answer given. the SC cannot review them. COMELEC c. prohibition and mandamus against the CA 2. offenses where there is no private offended party 5. prohibition and mandamus against the ff: a. such other cases or disputes which the President may in the interest of justice determine upon the recommendation of the Sec of Justice (Kindly check the law as this enumeration may be incomplete. prohibition. if any. cases decided by the ff courts and administrative agencies: b.Remedial Law Review Civil Procedure Prof. it cannot be removed. if any. Antonio R. if any. Jurisdiction of the SC as defined in the constitution cannot be removed nor diminished but that is not so with jurisdiction of any other court. fall within the appellate jurisdiction of the SC? A: 1. the power of the SC to issue those writs especially against lower courts in cases not in aid of its appellate jurisdiction is diminished since this power is now shared by the SC with the CA. COMMENT: This is not constitutional because the only prohibition in the constitution is that legislature cannot diminish the jurisdiction of the SC as defined in the constitution. . (See the provisions of the Chattel Mortgage Law. original jurisdiction of the SC? A: 1. That’s why in 1 case. cases affecting ambassadors. petition for certiorari. CA c. petition for certiorari. So under BP 129. fall within the original jurisdiction of the SC concurrent with the RTC? A: 1. Q : What cases. It did not say that the SC cannot review them but a contention was made that since it is final. petition for certiorari. the San Miguel Corp vs Sec of Labor. mandamus.000. where 1 party is a public officer or employee and the dispute relates to the performance of his official functions 3. the CA has jurisdiction to issue writs of prohibition and mandamus whether or not in aid of its appellate jurisdiction whereas before BP 129. offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5T 4. Bautista 5 2. it could issue writs only in aid of its appellate jurisdiction. at that time the Labor Code provided that a decision of the NLRC is final and executory.) Q : What cases. But if the jurisdiction is granted by the constitution. Jurisdiction is granted by the constitution. other public ministers and consuls Q : The legislature is prohibited by the constitution from diminishing the power of the SC as defined in the constitution. action to prevent and restrain violation of laws concerning monopolies and combination in restraint of trade (sec 17 Judiciary Act of 1948) 3. COA d.

(Fireman’s Fund Ins Co vs Cia General de Tabacos de Filipinas) The stipulation in the BOL is void. A. IX. all other cases in which only errors or questions of law are involved Q : Complaint filed in the RTC to recover on PN for P15T. Now. Sec. Calimlim vs Ramirez) (Please check the answer to this one. Sec. impost. defendant moves to dismiss on the ground of RTC’s lack of jurisdiction. 7) e. Therefore. Admiralty cases which are within the exclusive original jurisdiction of the RTC regardless of the amount involved refer to all maritime K or controversies such as K of affreightment and charter parties. enlarged or diminished by any act or omission of the parties. Sec 19 (3) of BP 129 as amended by sec 8 RA 7154 vests in the RTC exclusive original jurisdiction where the demand or claim exceed P200T (MM). The consignee sued the carrier in Mla RTC. all cases in which the jurisdiction over the subject matter of lower courts is in issue e. this no longer holds. atty’s fees of P5T. 2) This is a significant change from the old rules where the CA could certify a wrongly-filed case to the SC. Bautista 2. ordinance or executive order or regulation is in question c. A : The CA should dismiss the case outright. jurisdiction cannot be fixed by the agreement of the parties. Jurisdiction is conferred by law and cannot be stipulated by the parties. A. it must be brought in the HK RTC. it cannot be acquired through. (Zapata vs M/S Brenem) Where there is no error or overreaching and there is no showing that the enforcement of the choice-of-law clause would be unreasonable or unjust. A : Motion denied for lack of merit. Motion granted.. There is jurisprudence – conflicting though – to the effect that arbitration clauses. Decide. (But take note of the Zapata ruling in Intl Law which contradicts this rule. The clause in the Bill of Lading requiring that the case be brought before the HK courts deprives Philippine courts of jurisdiction over the dispute. all criminal cases involving offenses punishable with death or life imprisonment or reclusion perpetua b. law. Shipment shortlanded in Mla. . the clause must be given effect. xxx. neither can it be conferred by acquiescence of the court. IX. Latter moves to dismiss on the ground of lack of jurisdiction on the subject matter involving the stipulation in the BOL. That we accept the general principles of international law. The carrier moved to dismiss on the ground of lack of jurisdiction of the C since it is provided in the Bill of Lading that in case of dispute.Remedial Law Review Civil Procedure d. Resolve the appeal. A : Motion will not prosper. all cases involving the legality of any tax. or waived. and interest accrued as of the time of filing P1. subject matter (fr RTC) a. Resolve. Sec. assessment or toll.5T . Basic in the law on procedure is the doctrine that the jurisdiction of a court over the subject matter of an action is conferred only by the constitution or the law and that the Rules of Court yield to substantive law. all cases in which the constitutionality or validity of any treaty. it cannot be removed by the parties. COMELEC (Art.) Q : K of affreightment containing shipment from HK to Mla provides for an arbitration clause where any claim arising out of the BOL shall be filed only in HK courts. 7) 6 Prof. Q : There was a short shipment in a K for the shipment of goods from HK to Mla. COA (Art.) Compiled by Remedial Law Class of 2001. The parties can stipulate as to the venue but not with jurisdiction. (Rule 50. absent any fraud or unjustness – must be given effect. (De Jesus vs Garcia. Plaintiff appeals to CA. Antonio R. Consignee brings action claiming P25T in RTC Mla against vessel owner. or any penalty imposed in relation thereto d.

if arising from the same transaction. COMMENT : If the K’s wording is such that there can be no action brought to court at all without the case first being brought to arbitration. which amount is determinative of the jurisdiction of the court? A : Amount in the claim. A: MTC has exclusive original jurisdiction over cases of forcible entry and unlawful detainer. The defendant moved to dismiss on the ground of lack of jurisdiction. The settled rule is that the jurisdiction of the court over the subject matter is determined by the allegations of the complaint. making use of arbitration as a condition precedent to court action. One party moves to dismiss the case filed by the other on the ground that that case was not yet submitted for arbitration. the ruling of the SC here is that the action will not be dismissed. Q : Action for unlawful detainer filed in the MTC adding also for the payment of arrears and damages of more than P50T. Q : If the action is to recover P15T balance from K to buy a car worth P500T. See the Ship Mortgage Decree. Arbitration clause is proper. unlawful detainer is effectively a rescission of a contract. it will only be suspended. a pleading to confer jurisdiction on the court when under the original pleading there was none? A: No answer. Bautista. The clause in the K provides that no suit can be brought to court without first resorting to arbitration. Q : Can a vessel be sued in our courts? A : Yes. However. Resolve. When is the subject matter “incapable of pecuniary estimation?” Problem: Plaintiff files an action to rescind the contract. then that would be putting a restriction to file a case in court and is improper. A : Motion denied. This is not an instance of contracting away the court’s jurisdiction. Decide. According to Prof.) Q : Can you amend a complaint. Which has jurisdiction? A: Check the chattel mortgage law. where do you file? Answer: RTC since it is not capable of pecuniary estimation. The parties directed to resort to arbitration. can be joined in a complaint and filed with RTC (Rizal Surety vs Mla Railroad) Q : Suppose a K between 2 parties states that no action arising from the K may be filed in court without first being submitted for arbitration. Action is merely suspended. Bautista 7 NOTE : an action against a defendant involving admiralty and lease falling within the jurisdiction of the RTC and an action for a sum of money against an alternative defendant falling within the jurisdiction of a municipal court. Antonio R. Compiled by Remedial Law Class of 2001. Moreover. Thereby a motion to dismiss for failure to comply with condition precedent was argued on that ground. (Also note that separate causes of action of unlawful detainer and damages cannot be joined in the RTC because FEUD is a special civil action.Remedial Law Review Civil Procedure Prof. . damages in this case are merely incidental to the main case of unlawful detainer. if with admiralty jurisdiction. it must still be brought in the MTC. In other words. Q : Action to foreclose a chattel mortgage of betamax worth P8T. Q :What are libel suits in the context of civil procedure? A : Formerly the initiatory pleadings in actions in admiralty which correspond to the complaint now. However.

The defendant files a Motion to Dismiss on the ground of lack of jurisdiction of the MTC alleging that the RTC has jurisdiction since the subject matter is incapable of pecuniary estimation. Atty’s fees are included in the determination of the jurisdictional amount. According to Prof. Antonio R. Prayer for damages is incidental to action. What court has jurisdiction? A : RTC Q : What if damages sought is only P10T? A : RTC.” There is a principle in law that provisions such as this mean that it is renewable upon the option of the lessee. and therefore the case must be filed in the RTC. if the alternative prayer cannot be granted without first determining the main prayer. interest and cost of suit are excluded. (2) However. Where do you file? Answer: Check jurisprudence.000 worth of damages.000. Where do you file? Answer: RTC. it is not capable of Compiled by Remedial Law Class of 2001. Q : Action for rescission of K with prayer for damages amounting to P100T. The defendant moved to dismiss on the ground that the transaction is not capable of pecuniary estimation. A contract is renewable for 5 years. The K of lease contained a renewal clause which said that “this lease is renewable for a fixed term or for another year upon mutual agreement of the parties. Plaintiff files an ejectment suit. the jurisdiction of the RTC it is said that the subject matter of litigation cannot be determined by complaint. If you read BP 129. Q : What if action is for specific performance? A : RTC because incapable of pecuniary estimation. Q : What if action for rescission or P10T damages? A : MTC. How should the court rule? A : When the subject matter of compromise is the expiration of the K.Remedial Law Review Civil Procedure Prof. the case is capable of pecuniary estimation and should therefore be filed in the MTC (since the amount of P 50. The alternative prayer moots lack of pecuniary estimation. alleging that the lease has expired with the MTC. then the subject matter is not subject to pecuniary estimation. Q : What is meant by sec 19 (1) of BP 129 “ in which the subject of litigation is incapable of pecuniary estimation”? Should not the jurisdiction be determined by the allegations in the complaint and answer? Can you determine the subject matter of the litigation from the complaint alone or also by consideration of all pleadings? A : Jurisdiction over the subject matter is conferred by law. it is not capable of pecuniary action. Bautista. Now where the subject matter is the rescission of mortgage. Problem: Plaintiff files a case for specific performance of a contract to sell involving P50.000. the case remains incapable of pecuniary estimation. Q : An action for unlawful detainer on the ground of expiration of lease. Bautista Problem: Plaintiff files a case for specific performance of a contract to sell involving P50. . The defendant alleges as an affirmative defense that he is entitled to renewal. There are 2 scenarios: 8 (1) If the alternative prayer can be granted without granting the main prayer.000 with alternative prayer of P50. However. It is determined by the amount pleaded in the complaint under the totality ruling.00 is within the jurisdictional limits of the MTC). the Supreme Court said that if it is an interpretation of court.

Case was filed in the MTC. When he received the summons he filed a motion to dismiss. to be cognizable. Sec. it must be exclusive. at the CA level. Bautista 9 pecuniary estimation. it must be to the effect that it is the ONLY venue. however. If your cause of action is specific performance or rescission together with damages.look at Tijam vs Sibonghanoy. Action for unlawful detainer to eject them. once attached cannot be ousted by subsequent happenings or events. . after trial before the RTC then appeal to CA. Antonio R. Q : Is there any decision of the MTC which can be appealed directly to the CA? A : No. (Double-check this. although of a character which would have prevented jurisdiction from attaching in the first instance. the plaintiff can file in other venues. Compiled by Remedial Law Class of 2001. in arrears for 3 months. must be within the jurisdiction of the court both as to the amount and the nature thereof. elevate it to higher court at once on certiorari. VENUE If there’s a stipulation as to venue.Remedial Law Review Civil Procedure Prof. Even before the tenant could be served summons. Rule 40. An unlawful detainer action is within the exclusive original jurisdiction of the MTC. CA used principle of latches applied to estop the defendant from raising the issue of lack of jurisdiction III. Defendant-lessor counterclaims for unlawful detainer on the ground that the term of the lease had expired for which prior demand is not necessary when the ground for ejectment is expiration of a lease term. Cui. A : Motion is denied. Meaning. Otherwise. In what court should the action be brought? A : In MTC. Q : Action filed with the RTC to fix a period for K of lease filed by the lessee against his lessor. The jurisdiction of a court whether in criminal or civil cases. Decide. the RTC must dismiss the counterclaim. there are 2 bases for determining jurisdiction. he voluntarily left the place. Q : What court has jurisdiction over guardianship cases? A : RTC Q : Action for unlawful detainer to eject tenant and recover rentals due of more than P120T. BP 129 sec 33 (2) . Therefore. The political counselor is not a public minister or consul hence Art 8 of constitution is not applicable. Questions on venue should be raised at the earliest time possible because you have to resolve it at once. Rule 6. 1 provides that appeals from judgments and final orders of the MTC are taken to the RTC exercising jurisdiction over the area to which said MTC pertains. Sec. In Eastern Insurance v. the Supreme Court said that a 3RD party plaintiff and 3rd party defendant are subordinate to the principal action.) Q : The political counselor of the Cuban Embassy is renting a house for his personal use and that of his family. So that where objection to venue is denied. Can the RTC entertain the counterclaim? A : No. Is it really true that the parties cannot confer jurisdiction on a court? . Monthly rent of P40T. The 3rd party plaintiff and 3rd party defendant cannot control the venue of the main action. 7 provides that a compulsory counterclaim. defendant questioned jurisdiction of RTC.

Antonio R. 15 – Entity without juridical personality as defendant – when 2 or more persons not organized as an entity with juridical personality enter into a transaction. section 15. Defendant on a counterclaim (Rule 6 Section 14) . This is one legal significance of being a party. 9. parties are limited to the following (sec 1.e. 4. 19. 2. they may be sued under the name by which they are generally or commonly known. See also sec. Bautista 10 IV. . One cannot file a separate action to recover against the surety since that would be multiplicity of suits. When you sue 2. 8. Q: May a foreign corporation doing business in the Philippines be sued? How about if it wants to sue? How about counterclaim if it is sued. supersedeas bond – bond to stay execution [ sec. It is not a juridical person. Rule 3): a. Rule 39) Due process demands that no judgment can bind one who is not a party. Rule 70]. pleadings. 3. When you are sued 3. Rule 3. 10. Compiled by Remedial Law Class of 2001. sec. juridical persons c.brought as new party The following are parties: plaintiff defendant 3rd party plaintiff 3rd party defendant cross plaintiff cross defendant intervenor plaintiff in counterclaim defendant in counterclaim sureties (Surety becomes a party when the bond is filed – i. assuming it is not incorporated? A: NO. Q: Can it be sued? A: Yes. Impleaded later thru third–party (etc) complaint 1. Q: Can Winlaw sue. Intervention 2. PARTIES Q: What are the different modes by which a person becomes a party in a civil suit? A: 1. attachment bond – answers for damages in case attachment is improper. They can also take part in the proceedings. If there is no judgment surety is discharged. permissive or compulsory? 1. 47 (b). 5. Another implication of parties is that parties are entitled to notice as to orders. The section is not limited to business association and is extended to non-profit or charitable associations.Remedial Law Review Civil Procedure Prof. natural persons b. entities authorized by law Note however that a vessel may be a party to a civil litigation under the Ship Mortgage Decree. Winlaw cannot sue in Philippine courts since it does not have capacity to sue. It comes under the term business association. under Rule 3. 6. 7. etc. In the Rules of Court.

The fact that Eva Fonda was shot led to her being unable to finish the film. 2. Art. Plus. e. married. a compulsory counterclaim not set up in the same proceeding will be barred and that permissive counterclaim not set up is not barred. Without license – cannot sue but can be sued. 16. In the alternative. that would be a waste of judicial resources. It does not involve conjugal property of the spouses. is a movie actress. She was accidentally shot by a hunter so she was hospitalized. Sec. Eva Fonda. VIII of the Constitution provides that the courts can only adjudicate actual controversies. If Eva Fonda sues both D. since she is a minor. Bautista A: These are the rules for foreign corporation doing business in the Philippines: 1. section 11. What is her capacity to sue? Can she sue alone? A: No. Rule 2. 1. a hunter.Remedial Law Review Civil Procedure Prof. then the case can be dismissed on the ground that there is a failure to state a cause of action. she was shot in the leg by D. Compiled by Remedial Law Class of 2001. A minor is no longer emancipated by marriage. She is unable to complete the movie. Standing is a part of the cause of action. With license – can sue and be sued. thus taken out of the picture. guardian. well-known mark. Otherwise. without her husband? Answer: Yes. then there may be an overlap of legislation. She went shooting in the jungles of Mindoro. Isolated transaction – Foreign corporation can sue. is a movie actress. Eva sues for tort. One cannot have a joinder of causes of action if the parties are misjoined. she must be joined by her mother. the hunter. She is replaced by Ara Mina. 3. the movie company may be guilty of contributory negligence since it should have made sure that no harm would come to Eva. 11 PROBLEM: Mrs. It is necessary to inquire if there is a proper joinder of parties under sec. Where a corporation can sue. She has to be joined and assisted by her father. She brought an action against LVN and against the hunter. Note that the phrase “doing business in the Philippines” is defined in RA 5455. there would be 1 plaintiff with 2 defendants and 2 causes of action (tort and breach of contract). Antonio R. In this case. Problem: Eva Fonda. REAL PARTY IN INTEREST The rationale for requiring that there be real parties in interest is that if the courts are allowed to adjudicate moot and hypothetical cases. or guardian ad litem. Also any claim against a misjoined party may be severed and proceeded with separately. If one is not a real party in interest. The parties are properly joined because there is the same transaction AND involves common questions of law and fact. Q: What is the procedural remedy if defendant or plaintiff is not a real party in interest? A: Rule 3. 19. there is a common question of fact. If a party is not the real party in interest. 5 (a). he is not entitled to initiate the judicial machinery. Is there a problem with capacity to sue? Can she sue alone. While shooting on location in Mindoro.g. The parties may be dropped or added by order of the court in 2 ways: a) by the court’s own initiative b) by motion of any party This may be done at any stage of the action and on such terms as are just. and the movie company. the suit involves her exercise of profession. .

The plaintiff instituted the action in his behalf and on behalf of the other subdivision owners as a class suit. A: Motion to dismiss denied. Bautista 12 Q: A building was burned. is not the real party in interest and the real party in interest subrogated is the insurance company. if from what he pays it wipes out the obligation then he is the real party in interest. it may be dismissed for failure to state a cause of action. section 3) GENERAL RULE: Unless the action is authorized to be brought in the name of the representative. or the party entitled to the avails of the suit. Yes. the parties must have a common or general interest in the subject matter of the litigation. REPRESENTATIVE PARTIES (Rule 3. the action must be brought in the name of the real party in interest.must have a present substantial interest or such interest of a party in the subject matter of the action as will entitle him. suppose the defendant pays the plaintiff or suppose the judgment is rendered against the defendant ordering the defendant to pay the plaintiff. Rule 3.Remedial Law Review Civil Procedure Prof. More concretely here. X Co. . has fire insurance on its building. Conversely. that is on the same account. Who is a representative? There must be true representation. under the substantive law. section 3: If allowed to be brought by the representative: 1. Is that a class suit? A: No. to recover if evidence is sufficient. received on loan to be repaid only in case company is able to recover from the party responsible for the fire. is paid the insurance. Executor/administrator 4. otherwise. It was insured. the alleged arsonist. sues D. Antonio R. The test to determine whether a party is a real party in interest is whether he stands to be benefited or injured by the judgment in the suit. Party authorized by law or by the Rules Compiled by Remedial Law Class of 2001. Defendant moved to dismiss on the ground that the owner is not the real party in interest and that it was really the insurer. 1. There must be many persons so numerous that it is impracticable to join all as parties. Guardian 3. A party. “Loan receipt” for P 1 Million. i. thereby insulated from having to make payment to anybody else? If so. Under the documentation. Beneficiary included in the title of the case 2. The owner brings an action for such recovery against defendant alleging that defendant caused the fire. Q: Action by one subdivision owner in a subdivision against the subdivision developer to recover damages for non-compliance with some of the commitments in the contract to sell. the owner is the real party in interest. is the defendant. X Co. is the defendant the real party in interest? Yes. X Co. Resolve the motion to dismiss. It burned and after proper claim. must be a real party in interest and the action must be in the name of the real party in interes. not merely on the question involved. Q: X Co.. The real party in interest . to be qualified to bring an action. Beneficiary is the real party in interest. For there to be a class suit. then the plaintiff is the real party in interest. says it was not paid. Trustee of an express trust 2. D says in answer that the documentation is a sham. D moves to dismiss on the ground of failure to state a cause of action as X Co. Insurance company is the real party in interest in relation to D. e. A: D’s motion to dismiss sustained. see Rule 3 section 12. only loaned the amount by the insurance co. As simple as that. Rule on the motion. D is responsible for the fire. The insurance company paid to the owner the amount of the insurance under the following documentation: A loan agreement was executed by the owner to the insurance company whereby it was received that the amount paid to the owner may have from the one who caused the fire and obligating the owner to institute the action for such recovery.

section 3. Q: Is a junior mortgagee an indispensable party for a foreclosure of mortgage? A: No because final determination of the action can be had without him. And in a class unit. sue the developer re the assessment. Q: How do we know if a party is indispensable or not? A: Indispensable parties are those without whom no final determination can be had of an action. section 11. Class suit may prosper. (1 Moran 208) Legal implication of a class suit – Everyone will be bound by a judgment even if they disagree. failure to prosecute. for and in behalf of all residents. Dismissal of Actions. BAUTISTA: Re realty. There should be unanimity. you move to dismiss complaint on the ground of Rule 17. a person is risky to apply the principle but it is allowed under the strict requirements of the rules. EXC: when suit is about things belonging to the principal 13 Prof. out of the same transaction or series of transactions. INDISPENSABLE PARTIES Q: What should the defendant do if an indispensable party is not impleaded? A: Rule 3. Antonio R. Q: City passes ordinance imposing additional tax for park beautification of 10 centavos per movie ticket. Failure to comply with the Rule for no justifiable cause requiring the impleading of indispensable parties for an unreasonable length of time. by application of the class-suit principle. the developer puts up a common TV antenna for all residents and assesses them a sum monthly whether or not the residents use the antenna. Rule 3. Note that the body of the provision says that neither misjoinder nor nonjoinder is a ground for dismissal of action. An indiscriminate application for the class suit principle may be held bound although he was not really notified of the litigation on the theory that he belongs to a class and that he was properly represented in that class. It is more appropriate to cite Rule 3. P. Compiled by Remedial Law Class of 2001. Bautista Q: In a subdivision. BAUTISTA: A party is indispensable if you cannot render a judgment in the case without affecting his interest. section 12. A word more on class suit.interest of one is only as to his own house and lot. Can he sue for and in behalf of all other residents in a class suit? How about those who agree to the tax? A: It seems like the class suit cannot be brought by X for he does not satisfy the requisite that the parties bringing the representative suit be sufficiently numerous or representative of the class and also. That is a very violent ruling which must be seemingly resorted to because it is basic that a person should not be bound by a judgment in a case to which he was not a party. section 6 which authorizes joinder of parties who have a common interest in the same question of fact and law where the relief sought arises. Can X sue to annul the ordinance and recover all he has paid.Remedial Law Review Civil Procedure Agent of undisclosed principal acting in his own name: 1. Can P properly represent in a class suit? A: Distinguish between common interest in the subject matter and common interest in the legal issue. may sue or be sued without joining the principal 2. You are being presumptuous in assuming that all residents share that common interest with you. So move for addition of the new party and if the plaintiff does not comply. Professor Bautista is of the opinion that all residents to be affected should be unanimous in sharing that interest of the plaintiff. .

When a party received the complaint and the summons. In order for these to be a proper joinder of causes of action where there are multiple parties. He Supreme Court said that this is not just. C. Actually. he will say. etc. The court may grant the request on such terms as are just. BAUTISTA: Note that under Rule 2. They can ask the court to drop the names of the parties misjoined.contract c/a – cause of action LIN TAN HO VS. Plaintiff. D and E that will amount to a substantial amendment of your complaint of which A and B although in default are entitled to notice (Rule 9. misjoinder of parties is not a ground to dismiss an action. the Compiled by Remedial Law Class of 2001. Dinismiss sila ng plaintiff. REMOLETE Plaintiff sued 5 defendants on a common cause of action alleging that they are all jointly and severally liable. Second. there must first be a proper joinder of parties. pabayaan ko.” That’s why he is presumed to have willingly consented to be in default. Q: Can he also join another action against C (may utang pa si C na ibang jewelry?). section 3a). in Rule 9. another from C.000 lang pala and hinihingi. it is presumed that he does so knowingly. among the requirements is that there is joinder of parties which is in Rule 3. Bautista Q: Can a maker and a payee join together as plaintiffs to collect the amount of a check in a suit against the certifying bank? Are the plaintiffs properly joined? What is the remedy case of a misjoinder? Can you move to dismiss? A: No. it is an exaggeration. You can use the following symbols in your exam. That is why one situation can call for the application of myriad procedural rules. Anyway. BAUTISTA: Here is an illustration which is important not so much on the application of that rule but as an illustration of the way problems in procedure are solved and intersect. D and E answered. intelligently na sinadya nya. the plaintiff moved to drop C. That is why one of the rules on default is that the plaintiff cannot recover more than the amount prayed for. has a cause of action to recover on the promissory note from A. P50. the evidence presented against non-defaulting defendants is also presented against the defaulting defendants. interweave and interrelate. Chicken. kesa magabogado pa ako. section 11. sec. After the answer. wittingly. A and B defaulted. Hindi sya nagbayad. This is what makes Remedial Law a little difficult. and E. section 6. Δ . arising out of a series of transactions. Can the cause of action be joined? A: No. If you drop C. “Ah. section 3c. If there is a misjoinder of parties.defendant Π . and E invoking Rule 3. Q: Can they be joined together in one action? A: Yes. Why? Because when a person defaults by not answering. You have to correlate with the rules on default.Remedial Law Review Civil Procedure JOINDER OF PARTIES 14 Prof. talagang utang ko naman yon. They gave a promissory note in equal amounts. For example: A. D. But when a common cause of action is pleaded against the defendants. and C as co-owners bought a resort from the plaintiff (1/3 pro-indiviso). Each one has a right to expect that the others will make a common cause with him. Antonio R. B. D.plaintiff K . everything is easy. The promissory notes arise from the series of transactions. The trial court erred in granting the motion to drop C. . 5. another promissory note from B.

debt. These are same claims which do not survive. Antonio R. suit can survive. sec. damages arising from physical injuries of a vehicular accident. the defendant dies. there can be substitution of party as the claim is not extinguished. Q: Now about illustration Defendant #1 – action on promissory note Defendant #2 – action in promissory note Can they be impleaded together in one complaint? A: No. Those actions in Rule 87 Section 1 are highly litigious and cannot be resolved summarily by the probate court and a probate proceeding is summary. because in order for causes of action to be joined together. Therefore. action for acknowledgement of a natural child). same. it depends on what stage he died. But in Civil Law.Remedial Law Review Civil Procedure Prof. 16) As to plaintiff dying. you can proceed with the levy and sale. interest. See Rule 3 Section 20. it survives. In the probate court. whether the action is in the RTC or inferior court? The argument is very strong for the proposition that there is no difference because BP 129 says the procedure is the same. it is required that they arise out of the same transaction or series of transactions. you share with the other general unsecured creditors. SUBSTITUTION OF PARTIES BAUTISTA: We use the term actions which survive and those which do not survive in respect to claim against the defendant whether you will dismiss them to be prosecuted in the probate court of if it survive. If the plaintiff is the one who dies. Pending trial. Q: The first cause of action is a promissory note. The second is quasi-delict. you file the judgment as a money claim in the probate court. Please look at Rule 86 Section 5 (Claims Against the Estate). The claims that survive are enumerated in Rule 87 Section 1. If it has not yet been levied. otherwise they will be barred are found in Rule 86 Section 5. In libel cases. can they be joined? A: No. (Rule 3. See also Rule 3. sec. If his cause of action is one of those which descend or is not extinguished by his death (there are some which are not extinguished by his death. That is another case. recovery is for damages. otherwise you will be unnecessarily delaying and dragging one of the defendants into a litigation which he has no concern. Compiled by Remedial Law Class of 2001. Claims not surviving after death are those for recovery of money. you also use those terms in connection with whether actions can survive the death of the owner of the action. . If the defendant is the one who dies. If the judgment had already been levied. meaning when the defendant dies before final judgment in the RTC. like action for support. unless they arise out of the same transaction and also there is a common issue of fact and law common to defendant 1 and 2. An action for damages arising from quasi-delict is not regarded as a money claim. But it is applicable to that case when the plaintiff dies. You will be paid probate if the estate is sufficient. you just substitute him. Q: Civil action of libel for damages in RTC. The claims which must be filed in the probate court within the time for filing such claims. whether to substitute the defendant with his legal representative. The claims which survive. These actions can be brought against the executors or administrators and therefore they survive. Bautista 15 causes of action also multiplied will be misjoined because one of the requirements for joinder of causes of action is proper joinder of parties. What happens to the action? What if it is the plaintiff who dies? A: If defendant dies. Action still continues. Do you suppose there is a difference if the action on a money claim and the defendant dies pending trial. 20. called the statute of non-claim.

If the action is personal to the plaintiff. Q: Plaintiff dies during the pendency of the libel suit. enforce a lien 3. Q: Action in the RTC to collect a sum of money based on a promissory note amounting to P401.Remedial Law Review Civil Procedure Prof. recover real/personal property/interest therein 2. If it survives. See the last paragraph of Section 16. You are now the lawyer for the defendant. Rule 87 Section 1: 1. what would you do? A: I will file the case in the probate court because the action here is a money claim which does not survive. those involving real properties and personal properties. So the plaintiff has to file it in the settlement of the estate of the defendant. Rule 3. What do you do. Action survives and the court orders plaintiff’s counsel to submit within 30 days for substitution by legal heirs. Q: What if defendant dies after judgment in the RTC and while it is pending appeal in the CA. It is not proper to say that the action is extinguished. A: I will move for the substitution of the parties and continue with the appeal. all claims for money arising from contract. What do you do? A: Nothing.000 promissory note. Is this correct? A: No. a money claim for P50. Court may order opposing party to procure appointment of executor who shall immediately appear for deceased. Compiled by Remedial Law Class of 2001. money judgment against decedent 5. Claims which do not survive: 1.000. You are the lawyer for the plaintiff. the defendant died. It dies with the death of the defendant.00. action to collect on a P50. Q: Action to recover damages on personal property. money debt or interest Q: What are the actions which survive? A: Real actions. he cannot be substituted. Q: Suppose the action is pending trial in the RTC. express or implied 2. recover damages for an injury to person or property. Antonio R. what will you do? A: There would be substitution. Q: Can the deceased plaintiff be substituted in all cases? A: No. The counsel may be disciplined. you are the lawyer for the plaintiff. funeral expenses 3. Bautista 16 BAUTISTA: Action not surviving only means that you have to prosecute in another court (probate) and the case in the regular court will have to be dismissed. The plaintiff died. Counsel does not follow and the court dismisses the action. . expenses for last sickness 4. Rule 3 Section 8. After issues were joined and during the trial. real or personal Q: Are proper and necessary parties the same? A: Yes. Q: Can a co-owner of a row of apartments alone file an ejectment suit against a tenant? A: Yes.000 on the promissory note. Rule 86 Section 5.

X may file a third-party complaint against B for contribution. under sec. Rule 3. surety. Q: What is the rationale for allowing 3rd party complaints and actions for interpleader? A: To prevent multiple suits. Illustrations: a. S may file a third-party complaint against M for indemnity of whatever amount he may be adjudged to pay. “ … or in the alternative. When the pot was returned. Contribution – A sues X for collection of P40. 000 based on a promissory note signed jointly and severally with B. According to Prof. In it. 2. Otherwise. alternative plaintiffs are allowed. it was cracked.” Alternative causes of action are allowed under sec. Rule 8. it was already cracked. or the crack was caused by force majeure. according to Prof. NEW / ADDITIONAL PARTY IMPLEADER (3rd PARTY COMPLAINT) Q: What is a third-party complaint? A: A third-party complaint is a claim that a defending party designated as the third party plaintiff has against a person not yet a party to the action. Q: What is the rule on fourth-party obligation? A: A third-party defendant may proceed against any person not a party to any action who is or may be liable to him or to the third-party plaintiff for all or part of the claim made in the action against the thirdparty defendant.Remedial Law Review Civil Procedure ALTERNATIVE AND UNKNOWN DEFENDANTS 17 Prof. Bautista. the counsel is subject to appropriate disciplinary action. the defendant borrowed a pot in good condition. . the defendant states that he didn’t borrow it or if he did borrow it. Bautista According to Prof. Rule 8 allows for alternative defenses. Antonio R. Q: Does the third-party defendant have to file his answer to the original complaint? A: Rule 11 Section 5. D sues X with third-party complaint because of a promissory note. Rule 6 Section 11. may except as otherwise provided in these Rules. Third-party complaint is proper because it passes the test for the third-party defendant would be liable to the plaintiff or defendant for all or part of the plaintiff’s claim against the original defendant although the third-party defendant’s liability arises out of another transaction (1 Moran 282). join as plaintiffs. 6. However. called the third-party defendant. For example. is sued for recovery of the obligation of M. for contribution. Bautista. 3. it is provided that the third-party defendant shall file his answer to the third-party complaint and allege his defenses and counterclaims and cross-claims against the plaintiff. A plaintiff can sue in the alternative is the plaintiff does not know who among the defendants is liable. The defendant files his answer. third-party plaintiff and other parties. subrogation or any other relief in respect of his opponent’s claim. Q: P sues D to recover purchase price for goods sold to D. or if he did borrow it. Is the third-party complaint proper? A: Yes. sec. this is not allowed under sec. Counsel must be sure. indemnity. For example. Bautista. Indemnity – S. Rule 7 which provides that the counsel believes that there is good ground to support the pleading. Compiled by Remedial Law Class of 2001. b. if paternity is a mystery. 2. it was returned intact. This is not the case.

What if in the same problem. 13. Can you as fiancée intervene in the suit? Answer: No. 18 Prof. Besides.Remedial Law Review Civil Procedure c. Later. indemnity. X may file a third-party complaint against M for his warranty against eviction. . still it is up to the discretion of the court whether or not to allow the 3rd party complaint since it may delay the main action. Bautista Subrogation – The lessor sues the lessee for his failure to make repairs which under the contract of lease he agreed to do. the 3rd party plaintiff prays that if he is adjudged liable to the plaintiff. then it is the 3 rd party defendant who should be liable. That’s why it’s always necessary to ask for leave of court when filing a 3rd party complaint. the 3rd party complaint must be in respect of the plaintiff’s claim – contribution. The plaintiff does not have to amend the complaint in order to hold the 3 rd party defendant liable against him. A 3 rd party complaint basically offers a new defendant. Problem: Laarni Enriquez sues Loi Estrada for alienation of affections. The 3rd party complaint must be answered in 15 days except if the court fixes a different period. IV. Problem: Can a 3rd party defendant raise as defenses in his answer. the intervenor must have legal interest. Even if the requisites of a 3rd party complaint have been complied with. Compiled by Remedial Law Class of 2001. SUMMONS CONCEPT o A writ or process issued and served upon the defendant in a civil action for the purpose of securing his appearance therein. The lessee may file a third-party complaint against sublessee who failed to comply with the obligation. And Other Relief – X bought a parcel of land from M. defenses which are available to the defendant against the plaintiff? Answer: Yes. subrogation or other relief. Rule 6. under sec. d. o The service of summons enables the court to acquire jurisdiction over the person of the defendant. Antonio R. the intervenor is the live-in partner? What if the intervenor is an unsecured creditor of either the plaintiff’s or defendants? What kind of interest is required for intervention? INTERPLEADER Is there a deadline for filing a interpleader? Is it the prescriptive period under the Civil Code.000 is filed by X. the 3rd party complainant can always file it in a different action. Can a 3rd party complainant file a claim for a vehicular accident? Answer: No. INTERVENTION Problem: Action for sum of money for P1. In the prayer for the 3rd party complaint. B files an action against X to recover the property.000.

2. Rule 14). summons should be served upon him. B. Antonio R. Compiled by Remedial Law Class of 2001.Summons. 2) Directed to the defendant Signed by the Clerk of Court under seal A. 4.Clerk. and unless the defendant waives such defect by his voluntary appearance in court. 5. If you fail to do so. judgment by default will be taken against you for the relief demanded in the complaint. such as the substitution of the administrator or the heirs of the deceased. It is possible to have more than one residence. When a defendant is merely substituted for the deceased defendant. plaintiff will take judgment by default and may be granted the relief applied for.. Residence as opposed to domicile is physical. Form 2. if any Specification of period within which to answer Specification of consequence if D fails to answer. within fifteen (15) days after service hereof exclusive of the day of service.2) Name of the court Name of the parties to the action A direction that the defendant answer within the time fixed by Rules Notice that unless defendant so answers. 3. I.Remedial Law Review Civil Procedure o 19 Prof. S. Copy of complaint attached 1. as an exception.e. any judgment rendered in regard to such defendant is null and void. An example of an instance when a suitable person is authorized by the court to serve summons is when the court is overworked and understaffed or it the court doesn’t know the location. service upon him of the ORDER making him party is sufficient without service of summons. However. D. judgment by default and grant of relief prayed for CONTENTS (R14. To ___________________________. ___________________. copy of which is hereby served upon you.   Form/Directive (R 14. i. RTC of ____________   When an additional defendant is included in the action. The general rule is that summons is served by the sheriff or the court officer. defendant You are hereby summoned and required to file and serve your answer to the complaint. Bautista In the absence of service of summons. the court for justifiable reason allow any suitable person authorized by the court to serve summons (Sec. 3. File and serve Attach copy of complaint and/or order for appointment of a guardian ad litem. . C.

it published local news and general information. However. 3. Bautista. Issuance and Service 20 Prof. any suitable person authorized by the court issuing the summons 1. . handing b. when the relief demanded in such action consists. Publication 4. Compiled by Remedial Law Class of 2001. sheriff 2. Office – with some competent person in charge thereof • • One cannot leave summons with a receptionist since the person is not in charge of the office. Read the Laus case (219 SCRA 688). i. 1) upon filing of complaint and payment of the requisite legal fees Who serves? 1. It must state the efforts exerted by the sheriff. Who issues? Clerk of Court (R 14. sheriff’s deputy 3. 2. the following elements must concur: 1. Residence – with some person of suitable age and discretion residing therein b. there must be a statement that says that personal service is not possible. Antonio R. not merely feature articles. or the subject of which is property within the Philippines. By other means • What do you mean by other means? Under the Electronic Commerce Act. The Supreme Court set a very strict standard. when the defendant non-resident’s property has been attached in the Philippines For a newspaper to be a newspaper of general circulation. in excluding the defendant from any interest in property located in the Philippines. The standard is such because substituted service is an extreme case. According to Prof. Substituted – This is allowed only when the defendant cannot be served summons by personal service. is putting it under the door tendering?) 2. one cannot serve summons by a pigeon or through smoke signals. This is the law now.e.Remedial Law Review Civil Procedure II. and 4. S. Bautista A. it must be a newspaper. tendering – occurs when the person refuses (But what do you exactly mean by tendering. actual or contingent. registered mail is also one of the other means by which summons may be served if the court deems it sufficient. when the action affects the personal status of the plaintiff. Personal a. In the sheriff’s return. a. Extraterritorial service is proper only in 4 instances: 1. when the action relates to. other proper court officer 4. 3. wholly or in part. in which the defendant has or claims a lien or interest. summons may be served by fax or even e-mail.

The return and the proof of service is not conclusive. and iv) when the place where the case has been brought is that specified in a contract in writing between the parties.) The Supreme Court in one case said that the Daily Record was a newspaper of general circulation. Modes of Service of Summons Note: Important if service is jurisdictional. III. the parties may agree as to whom summons should be served. iii) when the action is against 2 or more defendants residing in different provinces. 4 .Process of superior courts enforced throughout RP  Sec. in cases falling under their jurisdictions. it appears that the Pinoy Times has “evolved” into a newspaper by now publishing predominantly news and matters of general interest.Judgments and processes issued by the METC. Antonio R. published at regular intervals (not just occasionally). or is the place of the execution of such contract as appears therefrom. MTC and MCTC . BP 129. It only has featured articles. as amended (1980)  Sec. 38 (2) . 3.Process of inferior courts enforceable within the province where the municipality or city lies. Where summons effective: Rule 135 (1997)  Sec. . IV. Bautista 2. 3 . In some contracts. May be served outside province with the approval of the RTC Judge of said province & only in the ff cases: i) when order for DELIVERY OF PERSONAL PROPERTY lying outside the province is to be complied with. Handing it to defendant Personal Tendering it if D refuses to receive it Compiled by Remedial Law Class of 2001. (Although as of 1 February 2001. the Pinoy Times is probably not a newspaper since it does not contain any news articles. like international contracts. may be served ANYWHERE in the Philippines without the necessity of certification by the Judge of the RTC. ii) when an ATTACHMENT of REAL property lying outside the province is to be made. published for the general public and not just a specific group of persons 21 Thus.Remedial Law Review Civil Procedure Prof.

wholly or in part. copy of summons and order of court sent by registered mail to last known address. actual or contingent. Extraterritorial θ HOW DONE?  By leave of court  Either by: a) personal service OR b) publication in a newspaper of general circulation in such places and for such time as the court may order. Antonio R. service by publication must be COUPLED with sending of summons and order of the court by REGISTERED MAIL to the last known address of the D *Registered mail  note the numbering machine has a lock to prevent tampering 2.Remedial Law Review Civil Procedure Prof. OR ⇒ in which the RELIEF demand consists. in EXCLUDING D from any interest therein OR ⇒ property of D has already been attached w/in RP ** in cases falling under extraterritorial service [R 14(15)]. squatters area/houses with no numbers Publication 2. Resident temporarily outside of RP (but resort to substituted service first**) Compiled by Remedial Law Class of 2001.1. location is not important.g.3. θ Order granting such leave shall specify reasonable time within w/c def must answer  must not be less than 60 days D does not resident and is not found in RP AND action : ⇒ affects the PERSONAL STATUS of the plaintiff OR ⇒ relates to or the subject matter of which is PROPERTY W/IN RP in which the D has or claims a lien or interest.2.1.3.. so service could be done anywhere. Tender  note that in both of these modes of personal service . Tatalon estate.3. D whose identity or whereabouts unknown {R 14 (14)} 2. . Bautista Handing v. no need for it to be made at the residence of the D WHERE residence Substituted **when D can’t be served within reasonable time WITH WHOM suitable age & discretion & residing therein competent person in charge thereof 22 office or place of business Justifiable reasons for substituted service: (a) staff not available (understaffed) (b) distance (c) identification of person to be sued e.

personal 2. Laus v. publication 2. Personal * Handing * tendering 1. CA 219 SCRA 688 ⇒substituted service allowed only if there is JUSTIFIABLE CAUSE ⇒Sheriff must exercise REASONABLE EFFORT to give the summons personally ⇒Sheriff must substantiate his reasonable efforts (must be thorough) Summons Pleadings & Other Final Orders papers Judgments Mode of Service & 1. . personal 2. Personal 2.service effected upon all the defs by serving upon:  any one of them. S. Compiled by Remedial Law Class of 2001. ENTITY WITHOUT JURIDICAL PERSONALITY .Remedial Law Review Civil Procedure Any other manner the court may deem sufficient 23 Prof. Antonio R. Mail Specific Rules: 1.8) NOTE: Service shall not bind any person whose connection with the entity has. registered mail • • registered ordinary 1. personal * delivery to party/counsel * leaving it in office with clerk or person in charge * leaving it in residence of party or counsel from 8 am to 6 pm substituted * with clerk of court after personal service fails mail ♦ registered (date of mailing is date of filing) ♦ ordinary 1. 15: summons may be sent in any other manner the court may deem sufficient. R 14. 1. substituted * residence: with resident of sufficient age & discretion * office/regular place of business: some competent person in charge thereof 1. been severed before the action was brought. Mode of Filing n/a 1. (R14. any other means 3. Bautista Q: Can summons be served by fax/e-mail? A: SC has allowed it. mail * registered 3. publication if D summoned by publication fails to appear in action 2. upon due notice. or  person in charge of the office or place of business maintained in such name.

AND  Legal guardian. b. Managing partner. if he has one. MINORS (R14. . FOREIGN PRIVATE JURIDICAL ENTITY (R14. 3. ASSOCIATIONS a. or  Any of its officers or agents within the Phil. or (2) If no resident agent:  Gov’t official designated by law. If defendant is the Republic  On Solicitor General b. INCOMPETENTS (R14. upon guardian ad litem (appointment to be applied for by plaintiff).10)  Upon minor personally. Treasurer. The case of Summit Trading answered whether or not summons may be left with the secretary of the President. AND  Legal guardian. by publication in a newspaper of general circulation in such places and for such time as the court may order Compiled by Remedial Law Class of 2001. INSANE. PUBLIC CORPORATIONS (R14.Remedial Law Review Civil Procedure 1. PRISONERS (R14. city. or if none.  Mother or father – optional 3. municipality or like public corps  On Executive Head . General Manager. DOMESTIC PRIVATE JURIDICAL PERSONS (R14.9)  Served upon prisoner by the officer having the management of such jail or institution. or In-house counsel 24 Prof. Said officer deemed deputized as a special sheriff for said purpose “Officer” = Jail warden 3. one cannot leave summons with the Vice President or Personnel Manager. UNKNOWN DEFENDANT (R14.14) – by publication o With leave of court.10)  Upon insane or incompetent personally. upon guardian ad litem (appointment to be applied for by plaintiff). Antonio R. if he has one.or  Other officer/s as the law or the court may direct 3. Corporate Secretary. 3. Bautista Note: This list is EXCLUSIVE! Thus.11) * * * * * * President. or if none.13) a.12) (1) Resident Agent designated in accordance with law. If defendant is a province.

5) Issued by Clerk of Court. Antonio R.  Without return of service . NON-RESIDENT . (R14. RETURN OF SERVICE (R14.20) Defendant’s voluntary appearance equivalent to service of summons.. PLACE AND DATE OF SERVICE Specify any paper which have been served with the process Name of the person who received it Sworn to when made by a person other than a sheriff or his deputy      PROOF OF SERVICE BY PUBLICATION (R14.burden is on plaintiff XCP: Return was patently irregular XCP to XCP: DOCTRINE OF SUBSTANTIAL COMPLIANCE (i. or b) by publication in a newspaper of general circulation in such places and for such time as the court may order. S4-5 FORM/CONTENT In writing Set forth the MANNER.4) WHO MAKES THE RETURN: Server (Sheriff. service may be effected out of the Phil: 25 Prof.20) PROOF OF SERVICE. deputy sheriff.15)) ρ ρ WAIVER OF SERVICE (R14.  BUT REGALADO SAYS: USE SUBSTITUTED SERVICE MUNA before service by publication 3. directed to the defendant by registered mail to his last known address. when: Compiled by Remedial Law Class of 2001. upon demand of plaintiff. or person deputized) WHEN: Within 5 DAYS from completion of service HOW:  Serve copy of return. AND 3) Affidavit showing the deposit of a copy of the summons and order of publication in the post office.  Copy of summons and order of court sent by registered mail to last known address. (R14.Remedial Law Review Civil Procedure 3.e. accompanied by proof of service. if defendant actually received summons and complaint) ALIAS SUMMONS – (R14. Inclusion in a motion to dismiss (R16) of other grounds aside from lack of jurisdiction over the person of the defendant shall NOT be deemed a voluntary appearance. GEN RULE: Return of service of summons immediately shifts burden of evidence (that summons was served) from plaintiff to defendant since there’s a presumption of regularity.Extra-territorial service (See Above R14. postage pre-paid. Bautista a) by personal service.16)  By leave of court. . ALIAS SUMMONS R14. business or advertising manager 2) Attach copy of the publication. or o the editor. RESIDENTS TEMPORARILY OUT OF THE PHIL. to the plaintiff’s counsel.19) 1) Affidavit of: o the printer.  Return summons to the Clerk who issued it. personally or by registered mail. his foreman or principal clerk.

These are reviewable by the court. Rule 14. 1. the trial judge gave validity to the service of summons. 16.). by leave of court be effected out of RP by personal service as under Sec. Defenses and objections not -pleaded in a MTRD or in the answer are deemed waived. SC said: “There is no question that the requirement of due process has been met as shown by the fact that defendants ACTUALLY RECEIVED the summons and copies of the Compiled by Remedial Law Class of 2001. When sheriff went to his house to serve summons. They cannot take these out of judicial review. This is because of the OMNIBUS MOTION RULE (R 9. in Cariaga Jr. S. But there is a presumption of regularity.) Q: Is return of the sheriff of the service of summons conclusive on the court? A: NO! it is not conclusive because the recital of the sheriff in the return are FINDINGS OF FACT (e. A: By extraterritorial service. OR in any other manner as the court may deem sufficient (R 14. He lives in Forbes park and has an office in Salcedo Village. Q: What to do if service of summons not valid? A: Make a SPECIAL APPEARANCE for the LIMITED and EXCLUSIVE PURPOSE of questioning the validity of service of summons. Generally. to quash it and move to dismiss on the ground of lack of jurisdiction over the person of D. If you add other grounds (e. prescription /failure to state a c/a. .Remedial Law Review Civil Procedure Prof. HOWEVER. the only person he found was D’s daughter who was VISITING the latter. PROBLEMS ON SERVICE OF SUMMONS: 26 Q: A lawyer was a D in an action for collection. S. Cariaga filed a petition for certiorari. OR B) summons lost. Malaya (143 SCRA 441). Q: Can summons be served by registered mail alone? A: NO. Can summons be served on the daughter? A: NO! Rule requires that the person to whom summons may be served must be RESIDING in the D’s dwelling house/residence. in extra-territorial service. Bautista a) summons returned without being served:  Server to make a return within 5 days stating reason for failure of service Copy of return served also on plaintiff’s counsel. S. 15) Note that there must be publication first. He left for a five-month vacation in Europe. How can he be served with summons.g. the sheriff served it on one of the persons mentioned in Rule). These are very serious factual issues which even have a heavy legal element. you are deemed to have waived the ground because that would be tantamount to an ADMISSION of the jurisdiction of the court .Residents temporarily out of the Phil. An action for collection was filed against him. in the service to the private domestic corporation. service may. in which case. v. Q: Defendant is a RP resident. not merely a visitor. etc. a copy of the summons and order of the court shall be sent by REGISTERED MAIL (so in addition to publication) to the last known address of the defendant. where extra-territorial service was done by REGISTERED MAIL.. Antonio R.g. hence. 6 OR by publication in a newspaper of general circulation in such places and for such time as the court may order.

Note: In Bello v. the case was against her husband.Was there a valid service of summons? Compiled by Remedial Law Class of 2001. i. 27 Q: Suppose a motion to dismiss was filed on the ground of lack of jurisdiction over the person because the summons was allegedly improperly served and because of improper venue.. Evidently. he is likewise not authorized. Q: Can the sheriff be authorized to serve summons in Canada? In what cases can be serve summons in Canada? Can we not serve summons to Mrs. 15. motion attacking a pleading or a proceeding shall include all objections then available for objections not so included are deemed waived). all others have to be specially authorized or else service is invalid. Final judgement against her was made for a sum of money. Bautista complaint and as evidenced by the Registry Return Card x x x . her lawyer filed a petition in the SC to annul the judgment. Similarly. Process of the courts effective only within the Philippines just as our judgment cannot be enforced abroad (R. Defendants have no reason to complain that they were unaware of the action filed against them or claim that they were denied due process. . his deputy or other proper court officer.Remedial Law Review Civil Procedure Prof.” Sir Bautista’s interpretation: Extraterritorial service can be made by: a) personal service b) publication c) Any other manner the court may deem sufficient (includes bus and easy call) d) Registered mail Incidentally. Bautista said SEC issued an order that service by bus is valid service. Hence. the sheriff’s return read like this: “Summons was served on her maid. Antonio R. aside from the sheriff.e. Under the omnibus motion rule (R. 135. D had to include all objections open to him but the Rule on the other hand says that if he raises a ground other than improper service or summons or lack of jurisdiction over his person. Grade 5 education. According to her. in Olay v. Whatever defect there may have been in the service of summons was aptly corrected by the court a quo in its assailed order x x x which gave said defendants 90 days from receipt of order within which to file their respective pleadings. S. Actually. summons was not validly served because the POLICE SERGEANT who was not a sheriff or a court officer was not authorized by the court to deliver the summons. the court said the enumeration of who could serve summons is EXCLUSIVE. he is deemed to have submitted himself to the jurisdiction of the court. 15 years old. service was deemed invalid. Secs. Leyte was not qualified . Q: Can you serve summons issued by a court? A: Siempre hindi unless I am authorized. Q: How about the policeman in the municipality where the court sits? A: Same answer. “ She then said that the maid gave her the summons five (5) months later. In the Bello case. Is the first ground waived by being conjoined with the second ground? A: Yes but this puts the D in a quandary. Ubo (117 SCRA 91). 3 and 4 & BP 129) Q: An English professor came to you for advice. 8. in her cottage in Area 2. Marcos? A: No. Siyempre. Anna (90 SCRA 114) where the POSTMASTER of Bato.

Summons was served on his 21 yr ols son who. He was declared in default. Knoll and Co.2) θ The CLAIMS of a party are asserted in a:  Complaint  Counterclaim (CC)  Cross-Claim (XC)  3rd (4th) Party Complaint  Complaint-In-Intervention θ The DEFENSES of a party are alleged in the:  θ BP 129. Note however that this defect is curable by proof that the summons was ACTUALLY DELIVERED to the defendant as when D files a motion to dismiss. answer to XC. 36 An answer may be responded to by a:  Reply Answer (answer to CC. v Domingo 44 Phil 680). She could not have appreciated the importance of the document given her. he was tending the store. PLEADINGS PLEADINGS – written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment (R6.) Compiled by Remedial Law Class of 2001. a lawyer was sued. is there a need for issuance of summons? Answer: It depends. NO further summons is required on the amended complaint if it DOES NOT INTRODUCE NEW CAUSES OF ACTION (Ong Peng v. Yes if the defendant was declared in DEFAULT on the original complaint and the plaintiff subsequently filed an amended complaint. 3/25. even called a psychiatrist to testify. 1961). according to him.Remedial Law Review Civil Procedure Prof. S. SC said that son was of sufficient age and discretion because although mentally retarded. answer to 3PC. Q: In one case.1). VI. New summons must be served on the D on the amended complaint as the original complaint was deemed withdrawn upon such amendment (Atkins. (Bautista appealed to the CA on the ground that the service was invalid since the husband is an immigrant (not residing in RP) and service should be by extraterritorial service (by publication). PLEADINGS ALLOWED (R6. Q: If the complaint is amended. Custodio. Bautista 28 A: NO! The maid is NOT of sufficient age and discretion. S 7 says it must be with some competent person in charge of the office or regular place of business. . Q: What about substituted service on a receptionist? A: NO. was mentally retarded. Rule 14. Antonio R. He service was made in the 1st floor of his house which was a sari-sari store. etc. He sought to set aside the order of default. he is smart enough to understand the significance of summons. If he was smart enough to tend the store. Was service valid? A: SC said YES & scolded the lawyer. NO if the D has already been served with summons on the original complaint.

Negative Defense – the specific denial of the material fact/s alleged in the pleading of the claimant essential to his cause/s of action.4) SC Administrative Circular No. (R6.if defendant desires to deny only a part of an averment. may be avoided. effective 15 November 1991: ♦ In cases under SUMMARY PROCEDURE. the only pleadings allowed are: 1. Compulsory Counterclaim if not asserted in answer.defendant specifies each material allegation of fact the truth of which he does not admit and set forth the substance of the matters upon which he relies to support his denial. (R8. Complaint 2. Antonio R. Revised Rules on Summary Procedure in MTC Cases.5(a)) Kinds of Denial: a) SPECIFIC DENIAL .(R8. Answer – affirmative and negative defenses not pleaded are deemed WAIVED except for: . he shall specify so much of it as is true and material and shall deny the remainder.10) .10) Compiled by Remedial Law Class of 2001.lack of jurisdiction over subject matter ***answer to counterclaim must be filed and served within 10 days from service of answer  All pleadings must be VERIFIED Gerales v. 04-94 (re forum-shopping) issued on 08 February 1994 and effective 01 April 1994 D) Splitting & joinder of causes of action 3. Bautista ♦ RULES to provide that AFFIDAVITS AND COUNTER-AFFIDAVITS may be admitted in lieu of oral testimony and that PERIODS FOR FILING PLEADINGS shall be NONEXTENDIBLE. rules & regulations * violations of rental law (irrespective of paid rentals sought to be recovered) and * other cases as SC determines 29 Prof. S 4) TYPES OF DEFENSES 1. (R6. CA Pleadings as well as remedial law should be liberally construed in order that the litigant may have ample opportunity to prove their respective claims & possible denial of substantial justice. . Cross-claim 4.Remedial Law Review Civil Procedure SUMMARY PROCEDURE IN SPECIAL CASES ♦ TO TRY exclusively: · FE UD( irrespective of amount of damages) * violations of traffic laws. THE ANSWER Answer – pleading in which the defending party sets forth his defenses (R 6. due to technicalities. barred 3. DEFN: A pleading in which a defending party sets forth his defenses.

a) NEGATIVE PREGNANT – a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. (R6. while hypothetically admitting the material allegations in the pleading of the claimant.allegations of usury in a complaint to recovery usurious interest must be denied under oath. Illegality f.10) b) SPECIFIC DENIAL UNDER OATH – to contest the authenticity or due execution of an actionable document. Other matters by way of confession and avoidance.5[b])  includes: a. (R 8. Sweet Lines. (Philamgen v. a. Affirmative Defense – an allegation of a new matter which. Compiled by Remedial Law Class of 2001. in effect an admission of the averment it is directed to. Statute of limitation c. Release d. would nevertheless prevent or bar recovery by him. 212 SCRA 194 (1993) 1. Bautista 30 a) SPECIFIC DENIAL FOR LACK OF KNOWLEDGE OR INFORMATION SUFFICIENT TO FORM A BELIEF AS TO THE TRUTH OF A MATERIAL AVER-MENT MADE IN THE COMPLAINT (R8. Antonio R. .11) EXCEPTIONS: No need to specifically deny under oath:  When adverse party not a party to the instrument  When compliance with an order for an inspection of the original document is refused. Estoppel h. Statute of frauds g.Remedial Law Review Civil Procedure Prof. Payment e. (R 9. Former recovery i. Fraud b.8) . Discharge in bankruptcy j.

counterclaim or cross claim either matured or was acquired by a party after serving his pleading (S. R11 S8-10 COUNTERCLAIMS (CC) DEFN: Any claim which a defending party may have against an opposing party. COMPULSORY PERMISSIVE .1. S.7)– requisites: (all must be present) a. COUNTERCLAIM. Prescription D. Litis pendentia c. CROSS-CLAIM AND THIRD PARTY COMPLAINT R6. by presenting such a counterclaim or cross-claim by SUPPLEMENTAL pleading OR 2. IMPT: A permissive counterclaim requires the payment of docket fees (Sun Insurance v. 9 & 10) : 1.. 9) * How? With permission of the court.12. acquire jurisdiction court has jurisdiction to entertain the claim 1. s. S6-9. (R6. Compulsory CC (R6. Res judicata d.2. S1) EXCEPTIONS: a. 8. Implied Admissions – defenses and objections not raised in a MTD or answer deemed WAIVED (R9. arises out of or is connected with the transaction or occurrence constituting the subjectmatter of the opposing party’s claim b. R9. Lack of jurisdiction over the subject-matter b. not barred even if not set up in the action. Asuncion). does not require for its adjudication the presence of 3rd parties of whom the court cannot c. Pleader fails to set up a counterclaim or a cross-claim through :  oversight  inadvertence  excusable neglect  when justice requires * How? by leave of court BY AMENDMENT before judgment (S 10) Kinds of Counterclaims 1. Permissive CC – does not arise out of nor is it necessarily connected with the subject of the opposing party’s claim. a compulsory cc or a cross-claim that a defending party has at the time he files his answer shall be contained therein) EXCEPTION: (when counterclaim or cross-claim may be filed after the answer R 11.6) How raised GEN RULE: Included in the Answer (R 11.

. It is not barred even if not set up in the action. For failure to raise a compulsory counterclaim  NONE. it is barred.  with leave of court.10) 2. has already submitted to the jurisdiction of the court. Otherwise. Sec. may set up counterclaim by amendment before judgment. June 25. MUST IT BE SET UP IN THE ACTION? TEST Remedies 1. must be against a CO-PARTY 2. Compulsory counterclaim not set up considered barred. being a plaintiff in the original complaint. A cross-claim not set up shall be barred. (R9. no other parties involved 4. (R9. (R17 S3) Francisco Motors Corp v. AGAINST A CO-PARTY arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. IMPT: A cross-claim is ALWAYS COMPULSORY. the defendant in the counterclaim. within the jurisdiction of the court THIRD (4TH) PARTY COMPLAINT . 100812. (R11. CA (GR No. Oversight. In case main action fails  Dismissal of action due to fault of plaintiff shall be without prejudice to the right of defendant to prosecute his CC in the same or separate action. Although a counterclaim is treated as an entirely distinct and independent action. Gloria) Does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction Yes. 1999) Nothing in the Rules of Court says that summons should first be served on the defendant before an answer to the counterclaim must be made. CROSS-CLAIM (R6.8) DEFN: Any claim by one party. CA) Does not arise out of nor is it necessarily connected with the subject matter of the opposing parties claim “set-off” (Lopez v.e. etc.DEFINITION ALSO CALLED THIRD-PARTIES One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim “recoupment” (Lopez v. i. must always arise out of the same transaction that is the subject matter of the original complaint or of a counterclaim 3. Gloria) Requires the presence of 3rd parties over whom the court cannot acquire jurisdiction No. inadvertence.2) 1. (Rule 9.2) Requisites: 1. excusable neglect. where separate trials of each of the respective claims would involve a substantial duplication of effort or time by the parties and the courts. 2) The logical relationship between the claim alleged in the complaint and that in the counterclaim. as where they involve many of the same factual and/or legal issues (Meliton v.

(R6. file against a person not a party to the action for contribution. E. subrogation and any other relief in respect to the claim of the plaintiff against defendant. In such case.11) Note that a responsive pleading to a complaint is the ANSWER. . subrogation or any other relief in respect of his original plaintiff’s claim 3. crucial character is that defendant is attempting to transfer to the 3PD the liability asserted against him by the original plaintiff. indemnity. or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. with leave of court. REQUISITES: 1. indemnity. action is for contribution. CA If the 3rd party is not secondarily liable to defendant for contribution. (R6. To challenge authenticity or due execution of an actionable document (R8. although the 3rd party defendant’s liability arises out of another transaction.10 DEFN: A pleading to deny. Whether it arises out of the SAME TRANSACTION on which the plaintiff’s claim is based.10) EXCEPTIONS: A reply must be filed: 1. in situations were 3PC filed without undergoing condition precedent. TESTS TO DETERMINE WHETHER 3RD PARTY COMPLAINT PROPER: 1. Allied Banking Corp v. then the 3PC is improper. all new matters alleged in the answer are DEEMED CONTROVERTED. θ A 3rd party complaint that is not set up is not deemed barred  it may be filed as a separate action. CA GEN RULE is that the court which has jurisdiction over the res of the main action has jurisdiction over the 3PC. Republic v.8) 2. 3RD party defendant (3PD) not a party to the action 2. Allegations of usury in a complaint to recover usurious interest (R9. indemnity.DEFN: A claim that a defending party may. not the reply so reply does not need to file a reply in this case. THE REPLY R6. Whether the 3rd party defendant may assert any defenses which the 3rd party plaintiff has or may have to the plaintiff’s claim Balbastro v. 2. Central Surety 3rd party complaint is an ancillary suit which depends on the jurisdiction of the court over the main action. However. in respect of his opponent’s claim. subrogation or any other relief. Whether the 3rd 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.10) GEN RULE: Plaintiff has option not to file a reply. and 3. although arising out of another or different contract or transaction is CONNECTED with the plaintiff’s claim. 3PC will be dismissed independent of the main action. or WON the 3rd party claim.

1). and date of the pleading. f. Petition for prohibition (Rule 65. Sec. Sec. CAPTION – name of court. Sec.3)  SIGNATURE OF COUNSEL  a certification that: a. Sec. 5). d.2) 3. 1. title of action (the names of parties with their respective participation in the case indicated). Application for appointment of receiver (Rule 59. Petition for certiorari (Rule 65. VERIFICATION A pleading is verified by an AFFIDAVIT that the affiant has read the pleading and that the allegations therein are true and correct of his knowledge and belief GEN RULE: Pleadings need not be under oath. Petition for annulment of judgments or final orders and resolutions (Rule 47.  IF PLEADING UNSIGNED  produces no legal effect  BUT court may allow such deficiency to be remedied if due to mere inadvertence and not intended for delay. Petition for indirect contempt (Rule 71. Sec. 4). 3). Petition for mandamus (Rule 65. Sec. 2). and c. Sec. information and belief there is good ground to support it. Petition for change of name (Rule 103. Application for support pendente lite (Rule 69. t. FORMAL REQUIREMENTS OF PLEADING RULE 7 PARTS OF A PLEADING 1. 2). Sec. l. Sec. b. Sec. 1). p. 3). to the best of his knowledge. allegations of party’s claims/defenses. verified or accompanied by affidavit XCP: When otherwise specifically required by law or rule In what cases are a verification required? a. 2). c. . Complaint for forcible entry or unlawful detainer (Rule 70. o. Sec. 1). he has read the pleading. j. Sec. Sec. Sec. n. u. m. 1). Petition for the declaration of competency of a ward (Rule 97. Sec. (R7. Petition for relief from judgment or order (Rule 38. g. 4). q. Petition for quo warranto (Rule 66. 2). k. 1). relief prayed for. Complaint for injunction (Rule 58. 4). final orders or resolutions of constitutional commissions (Rule 64. i. it is not interposed for delay. and docket number (R7. 4). b.1) 2. r. Petition for leave to sell or encumber property of an estate by a guardian (R 95 S1) s. Petition for certiorari against the judgments. 3). Sec. Petition for review from the CTA and quasi-judicial agencies to the CA (Rule 43 Sec. Complaint for expropriation (Rule 67. 1). BODY – designation of pleading. h. Petition for habeas corpus (Rule 102. (R7.F. Petition for appointment of a general guardian (Rule 93. e. Petition for review from the RTC to the CA (Rule 42. Appeal by certiorari from the CA to the SC (Rule 45. Sec. 1). Sec. SIGNATURE AND ADDRESS – RULE: Pleading must be signed by the PARTY OR COUNSEL. 1). Sec.

Sec. Sec. mistake or excusable negligence or opposition thereto (Rule 37. he shall report that fact within 5 DAYS therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Sec. Proof required of a redemptioner (Rule 39. 8 Feb 1994) Plaintiff or principal party shall certify under OATH in the complaint or other initiatory pleading. Sec. HOW ALLEGATIONS ARE MADE: 1. 9). Sec. If there is such other pending action/claim. 5). 1). b. d. Answer to request for admission (Rule 26. Sec. 4). c. Third-party claim (Rule 39. Sec. DETAIL IN PLEADING R8 S1-9. 1. 2). b. f. sec. Denial of the genuineness and due execution of an actionable document (R 8. k. no such other action or claim is pending therein. tribunal or quasi-judicial agency and. to the best of his knowledge. Sec. 2. accident. 2) SUPPORTING AFFIDAVITS OR AFFIDAVITS OF MERITS REQUIRED IN: a. IN GENERAL . CERTIFICATION AGAINST FORUM-SHOPPING (R7. Motion to postpone for absence of evidence (Rule 30. Petition for voluntary judicial dissolution of a corporation (Rule 104. Sec. 30). 2). b. 16). 3 (b)). Motion for preliminary attachment (Rule 57. i. Sec. Sec.    Submission of false certification – INDIRECT CONTEMPT Non-compliance with any of the undertakings – INDIRECT CONTEMPT WILLFUL AND DELIBERATE FORUM SHOPPING – a ground for SUMMARY DISMISSAL WITH PREJUDICE. Denial of allegations of usury (Rule 8. Motion to set aside a default order (Rule 9. Motion for dissolution of preliminary injunction (Rule 58. 3. Application for writ of replevin (Rule 60. Sec. and w. c. as well as a cause for administrative sanctions. NOTE: Absence of certification a cause for DISMISSAL of the case without prejudice. 3). 11). Motion for summary judgment or opposition thereto (Rule 35. 04-94. Answer to written interrogatories (Rule 25. and c. or in a sworn certification annexed thereto and simultaneously filed therewith: a. Secs. d. a complete statement of its present status.R12 G.5) (See also SC Admin Circular No.v. Motion for new trial on the ground of newly-discovered evidence in criminal cases (Rule 121. upon motion and after hearing. Sec. Petition for relief from judgment or order (Rule 38. 6). Sec. shall also constitute DIRECT CONTEMPT. Petition for cancellation or correction of entries in the civil registry (R 108 S 1) MUST BE UNDER OATH: a. e. S 8). 4) 1. g. Sec. and l. 3). unless otherwise provided. j. Claim against the estate of a decedent (Rule 86. h. 2). 3). Motion for new trial on the ground of fraud. If he should thereafter learn that the same or similar action or claim has been filed or is pending. e. Motion to postpone for illness of a party or counsel (Rule 30. That he has not commenced any action or filed any claim involving the same issued in any court.

it exists side by side with the original pleading Always a matter of discretion Grounds for the supplemental pleading arose after the 1st pleading was filed Must conform to certain formalities . H. (R8. he must do so by SPECIFIC DENIAL with supporting particulars as are peculiarly within the pleader’s knowledge. b. 3.6) 7. CONDITIONS OF MIND  malice. (R8. both copying and annexing the document into the pleading ACTIONABLE DOCUMENT – a document which is really the basis of the cause of action (or defense). intent. annexing or incorporating the document into the pleading.1) TEST OF ULTIMATE FACTS: WON fact/s can’t be stricken out without leaving the statement of the cause of action insufficient (Tantuico v. AMENDED AND SUPPLEMENTAL PLEADINGS – R10 AMENDED PLEADING Supersedes the pleading amended Either as a matter of right or a matter of discretion Reason for the amendment available at time of the 1st pleading Must conform to certain formalities AMENDMENTS SUPPLEMENTAL PLEADING Supplements the pleading. concise & direct statement of the ULTIMATE FACTS on which the party pleading relies for his claim or defense  if defense relied on based on law. (R8.3) 5. FRAUD AND MISTAKE  the circumstances constituting fraud or mistake must be stated with particularity. OFFICIAL DOCUMENTS  sufficient to aver that the document was issued or the act done in compliance with law. ALTERNATIVE CLAIMS AND DEFENSES  if one of them if made independently would be sufficient. and not merely evidentiary thereof. JUDGMENTS  sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. knowledge or other condition of the mind may be averred generally. (R8. or c. in a methodical & logical form  plain.5) 6. CONDITION PRECEDENT  general averment sufficient (R8.9) 9. the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.7)  allege by: a. CAPACITY  aver facts showing:  capacity to sue or be sued. ACTION OR DEFENSE BASED ON A DOCUMENT (R8. or  the legal existence of an organized association. (R8.4) NOTE: If party wants to question the capacity to sue of the other party. or  authority to sue or be sued in a representative capacity. (R8. Republic) 2. cite provisions and their applicability. (R8. copying a substantial portion of the document into the pleading.2) 4.6) 8.

7) EFFECT: The amended pleading SUPERSEDES the pleading that it amends. v.1) Barfel Dev’t. (R10.  Admissions in superseded pleadings may be received in evidence against the pleader. As a MATTER OF RIGHT – allowed ONLY ONCE  before a responsive pleading is served. or 2. and  Hearing GROUND FOR DENIAL: If motion is made with intent to delay.3) 1. (R10. decreases as it progresses. CA Liberality in allowing amendments is greatest in the early stages of a lawsuit. (R10. incorporating the amendments. SUBSTANTIAL AMENDMENTS a.2) a.4)  Defect in the designation of the parties. FORM: File a new copy of the entire pleading. which shall be indicated by appropriate marks. Co.  Claims/defenses in superseded pleading not incorporated in the amended pleading shall be DEEMED WAIVED. As a MATTER OF DISCRETION – by leave of court HOW MADE?  Upon motion  Notice to adverse party. without regard to technicalities.HOW: 1. (R10. OR  In the case of a REPLY. (R10. By adding or striking out an allegation or the name of any party. TO CONFORM TO EVIDENCE (IMPLIED AMENDMENT) (R10. (R10.1) PURPOSE: To have the actual merits of the controversy speedily determined. FORMAL AMENDMENTS (R10. at any time within 10 DAYS after it is served. or  Other clearly clerical or typographical errors HOW AMENDED: By the court motu propio or by motion WHEN: At ANY STAGE of the action CONDITION: No prejudice is caused to the adverse party 1.5)    Issues not raised in the pleadings Tried with the express or implied consent of the parties Treated in all respects as if they had been raised in the pleadings PURPOSE OF AMENDMENT:  To cause pleadings to conform to evidence or  To raise these issues HOW DONE: By motion . By correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect.8) KINDS 1. and in the most expeditious and inexpensive manner. and changes at times to a strictness amounting to a prohibition.

the original complaint exists side by side with the supplemental complaint. an answer earlier filed may serve as the answer to the amended complaint COMMENT If def a foreign private juridical entity and service of summons is made on the gov’t official designated by law to receive them. etc. SUPPLEMENTAL PLEADING (R10.  Court may grant continuance to enable amendment to be made.) party complaint Supplemental complaint rd th . R22 FILE WITHIN: 15 days from service of summons 15 days from service of copy 10 days from notice of order admitting amended complaint 10 days from service 10 days from service 15 days from service of summons 10 days from notice of order admitting the same The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed. I. not to entirely substitute the latter.6) REQUISITES:  Motion of a party  Reasonable notice  Upon such terms as are just CONTENTS: Transactions. PERIODS FOR PLEADING R11. Unlike in an amended complaint. ANSWER TO: Complaint Amended complaint as a matter of right Amended complaint with leave of court Counterclaim Crossclaim 3 (4 . If no new answer is filed.WHEN: At ANY TIME. CA A supplemental complaint or pleading supplies DEFICIENCIES in aid of an original pleading. even after judgment BY WHOM: By any party EFFECT OF FAILURE TO AMEND: No effect on the result of the trial on these issues. occurrences or events which have happened since the date of the pleading sought to be supplemented. file answer within 30 DAYS after receipt of summons by such entity. IF EVIDENCE IS OBJECTED TO AT THE TRIAL ON THE GROUND THAT IT IS NOT WITHIN THE ISSUES MADE BY THE PLEADINGS: Court may allow the pleadings to be amended and shall do so with liberality IF presentation of the merits of the action and the ends of substantial justice will be subserved. Shoemart v.

Complaint-inintervention 15 days from notice of order admitting the same Court may prescribe a different period θ Period to file an answer may be extended upon motion and on such terms as the court may find just. plainly addressed to ORDINARY MAIL Posting via ordinary mail SUBSTITUTED SERVICE Delivering a copy to the clerk of court. Notice 7. with proof of failure of both personal service and . Order 4.11) Reply: file 10 DAYS from service of pleading responded to. (R11. (R13.4) 1. IF NOT IN THE RECORD Whenever practicable. in a sealed envelope.1 and R13. It is the preferred mode of filing Presenting the originals personally to the clerk of court Date and hour presented to clerk of court Written or stamped acknowledgment of filing by clerk of court on a copy of the pleading REGISTERED MAIL When personal filing is not practicable Sending via registered mail Date of mailing. J. Written motion 6.2) COVERAGE (R13. and by the affidavit of the person who did the mailing SERVICE OF PLEADINGS & PAPERS PERSONAL HOW DONE Delivering personally a copy of the papers to the party or his REGISTERED MAIL Depositing a copy in the post office. Resolution 3. as shown by the post office stamp on the envelope or the registry receipt Registry receipt. (R13. Offer of judgment or similar paper FILING OF PLEADINGS AND PAPERS PERSONAL WHEN RESORTED TO HOW DONE CONSIDERED DATE OF FILING PROOF OF FILING. Demand 9. 5. FILING AND SERVICE OF PLEADINGS AND OTHER PAPERS – R13 FILING – the act of presenting the pleading or other paper to the clerk of court.2) SERVICE – the act of providing a party with a copy of the pleading or paper concerned. Pleading subsequent to the complaint. Appearance 8. Judgment 2.

 EXCEPTION: Papers emanating from the court  If no written explanation is filed: paper considered not filed. Containing a full statement of the date. Leaving papers in party’s office with his clerk or with a person having charge thereof. 7 of Rule 13. place and manner of service Affidavit of the person mailing of facts showing compliance with Sec. or at his residence service by mail Upon actual receipt by the addressee. or Official return of the server. (R13. Registry receipt issued by the mailing office  Registry return card shall be filed immediately upon its receipt by the sender. whichever date is earlier Affidavit of the person mailing of facts showing compliance with Sec. or Affidavit of the party serving. . unless the court provides otherwise. or after 5 DAYS from the date addressee received the 1st notice of the postmaster.11) If other modes: must be accompanied by a WRITTEN EXPLANATION why the service or filing was not done personally. the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee Upon expiration of 10 DAYS after mailing. At the time of delivery to the clerk of court PROOF OF SERVICE Written admission of the party served. or in lieu thereof. Leaving the copy (between 8AM6PM) at party’s or counsel’s residence. 7 of Rule 13   PERSONAL SERVICE always the preferred mode.counsel. with a person of sufficient age and discretion residing therein WHEN COMPLE TED Upon delivery actual the party or his counsel at his office.

Must have all the PARTS A. it will fall under a particular set of rules . Designation . b. Body 1. . act/omission of defendant in violation of plaintiff’s right with consequential injury or damage to the plaintiff 2. 2.3[a]) Bautista 1. narrows down and clarifies the issues. litis pendentia.Complaint 2.1. To characterize action or proceeding – ordinary civil action or special proceedings – If it is an ordinary civil action .2) 3 ELEMENTS OF A CAUSE OF ACTION a. Caption 1. Issues are important in determining defenses (e.notice to other parties of claims /defenses.1. Title of the Action 3.g.1) CAUSE OF ACTION is the act/omission by which a party violates a right of another (R2. Actionable documents ♦ written instrument upon which the claims/defenses are based.NOTE: Party in default entitled to NOTICE of subsequent proceedings but not to take part in the trial (R9. Function of Pleadings 1. Names of the Parties (same for record on appeal) ♦ ONLY OTHER PLEADING which require names of all the parties ♦ Note that docket number is assigned by the court (so no docket number pa at this stage) B. Allegation 3.  States the names and Every ordinary civil action must be based on a cause of action (R2. To define issues – so both parties and the court know the issues. Rules Governing a Complaint DEFN: The pleading alleging the plaintiff’s cause/s of action.2. To give notice . res judicata re identity of issues or WON issues necessarily adjudicated in prior action) **identify TRIABLE issues 1. legal right of plaintiff. and to the court as to the cause of action or defense 1. The objective is to AVOID CHAOS. correlative legal duty of defendant and c.1. Name of the Court 2. residences of the plaintiff/s and defendant/s.

S.jurisdiction 2.numbered. ♦ Condition precedent (R. What it means .if not specifically denied under oath. Paragraphs --. S. 11  Allegations NOT specifically denied deemed admitted. 4). ♦ Rule 8. 3) ♦ Fraud. the circumstances constituting fraud or mistake must be stated with . CONCISE and DIRECT statement of the ULTIMATE FACTS on which the party pleading relies for his claim or defense. S. S. Prayer for Relief ♦ Legal significance of relief  R 9. No allegation of law nor conclusions of law B. Material facts only 2. 8. 5) : in all averments of fraud or mistake. to deny legal existence of any party or the capacity of any party to sue or be sued in a representative capacity. S. Sec.2. condition of mind (R 8. Ultimate facts only (not evidentiary facts or conclusions of fact) ♦ Rule 8. mistake. 1.R.3 1. omitting the statement of mere evidentiary facts. document is deemed to be: ♦ genuine and ♦ duly executed 4. All constitutive/operative facts (of the cause of action) 1. one must SPECIFICALLY DENY same. ♦ in ALL OTHER judgments  court may award reliefs greater or other than those prayed for ♦ Rule 10. as the case may be. 7. 1 paragraph = 1 set of circumstances C. 5 - amendment to conform to or authorize presentation of evidence C. Allegations of specific matters: ♦ capacity/authority to sue (Rule 8. Certification Against Forum Shopping 2. Effect of lack E. 3(d) : a judgment rendered against a party in defauolt shall NOT EXCEED the amount or be DIFFERENT in kind from that prayed for nor award unliquidated damages. S. Essential Allegation A. Signature and Addresses. 1 Every pleading shall contain in a methodical and logical form. a PLAIN. Verification ( required if a provisional remedy is prayed for) F.Legal Significance of actionable document .

♦ Specific amount of damages  claim for monetary damages should be specified (what is the legal basis?)  totality rule C. Registered • Service by registered mail is complete upon actual receipt by the addressee or after 5 days from the date he received the first notice of the postmaster. . Ordinary • Service by ordinary mail is complete upon the expiration of 10 days after mailing unless the court provides otherwise. Registered Mail Only • The date of mailing is the date of filing. Service of Judgments. Filing of Pleadings 1. knowledge or other condition of the mind of a person may be averred GENERALLY. final orders or resolutions against him shall be served upon him by publication.O. Personal 2.e. The law does not allow pleadings to be mailed to P.A party may set forth 2 or more statements of claim or defenses alternatively or hypothetically. Personal 2. Rule 13) 1. 9. either in one cause of action or defense or in separate causes of action or defenses. distance) • Personal service is complete upon actual delivery.When a party summoned by publication has failed to appear in the action. Registered Mail 3. Publication -. S. b. 2. Mail a. counsel must explain why (i. intent. When 2 or more statements are made in the ALTERNATIVE. Alternative/ Hypothethical/ Inconsistent C/a/ Defenses ♦ Rule 8. 2: Alternative Causes of Action . 3. the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. and one of them if made independently would be sufficient. If one cannot serve the pleadings by personal service. The address cannot be a post office box. Personal • Personal service is the preferred mode. Substituted Service The lawyer of a party must give his office address. Service of Pleadings 1. Malice.PARTICULARITY. boxes because no one would sign the receipt. judgments. no messenger. Final Orders or Resolutions (Sec.

setting forth the substance of the matters relied upon for such denial b. Rule 8). special proceeding) In the Rules of Summary Procedure. If ultimate facts are not alleged then the complaint is insufficient. • There is a general denial when the defendant denies everything without denying it per paragraph 2. General Denial • This is not allowed by the Rules of Court. If the complaint alleges more than the ultimate facts. how and other issues of fact. It is vulnerable to a motion to dismiss for failure to state a cause of action. 3. issue defining – for purposes of litis pendentia or res judicata. Pleadings must state the ultimate facts only and not the evidentiary facts. 2 Kinds of Denials 1. 2. 10. The denial of the allegations in the complaint should create the issue of fact.Pleadings are the written statements of the respective claims and defenses of parties. by specifically denying the averment and whenever possible. notice giving a. then it is vulnerable to a motion to strike since the other allegations would be irrelevant. categorize (i. It is important to allege the ultimate facts for 2 reasons: 1. Specific Denial a. Ultimate facts are also called operative facts which means those facts which constitute a cause of action. . Under Rule 34. then there are triable issues. special civil action. giving notice to the defense 2. Problem: The plaintiff alleges in his complaint that the defendant owes him P1.000 which is due and demandable. If the defendant denies the allegations. The following are the functions of pleadings: 1. 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 A negative pregnant is a denial pregnant with an admission – a bad pleading (2ND sentence of Sec. The complaint must still allege when.000. giving notice to the claim b. the general rule is that a motion to dismiss is not allowed.e. judgment on the pleadings is allowed if there are no triable issues. the complaint is not sufficient. The exception is a motion to dismiss on the ground of lack of jurisdiction. Is this complaint sufficient? Answer: No.

” Causes of Action are important: 1. Problem: Plaintiff files a case for collection of sum of money based on a promissory note. the judgment or final order is. In the defendant’s answer. At the trial. Rule 39 (b) provides. Rule 8 talks of genuiness and due execution. The insurance company pays for the damage to B’s car. It was merely an allegation in anticipation of a defense. Problem: Plaintiff files a case for collection of sum of money based on a promissory note. it is not an implied admission. In the defendant’s answer. driving a Ford Expedition. It does not speak of the validity of the contract itself.The following are the instances wherein a specific denial is insufficient but must be under oath: 1. the defendant alleges that there was no valuable consideration for the promissory notes. Is the defendant’s failure to deny that allegation an implied admission? Answer: No. allegations of usury 2. 47. Problem: A. How many causes of action are there? Is there a splitting of a cause of action? . “The effect of a judgment or final order rendered by a court is that in other cases. The complaint alleges that the defendant tried to pay the note with other notes which the defendant deceived plaintiff into accepting through defendant’s misrepresentations. 8. The complaint alleges that the defendant tried to pay the note with other notes which the defendant deceived plaintiff into accepting through defendant’s misrepresentations. The insurance company files a suit against A for damages against the car. the defendant did not deny the allegations that he deceived the plaintiff in accepting the other notes. The complaint alleges that the plaintiff remains unpaid. In order to see if there is splitting of a cause of action. with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto. B files a suit against A for physical injuries. litigating for the same thing under the same title and in the same capacity. the authenticity and due execution of actionable documents properly pleaded where the opposing party was a party thereto. Sec. B is injured. The complaint alleges that the plaintiff remains unpaid. Such allegation is not a material averment. Is the defendant barred from alleging this? Answer: No. B’s car is insured. Joinder of Parties – compulsory Joinder of Causes of Action – always permissive • The statement that the joinder of causes of action is permissive must be qualified Sec. the defendant did not deny the allegations that he deceived the plaintiff in accepting the other notes. hits B who is driving a Kia Pride. conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceedings.

In this case.Answer: According to Prof. There would be 2 causes of action here if B is injured and the car B was driving was owned by someone else. The counterclaim is for P1. For amendments of the cause of action. 4. Problem: The complaint is with the RTC. there is only 1 cause of action. In order to see if there are 2 or more causes of action. The test is to count how many rights were violated. Regardless of the amount. Under the ruling in the Manchester case. or is necessarily connected with. Sec. 3.000. Bautista. Does this mean the person files a case for the leg and one for the arm. There is a counterclaim for unlawful detainer? Does the RTC have jurisdiction over the counterclaim? Answer: No. res judicata b. a compulsory counterclaim which is not set up shall be barred.000. 2. Rule 141 provides for filing fees. The exception refers only to amount and not to the nature. the transaction or occurrence which is the subject matter of the opposing party’s claim. ltis pendentia c. Rule 6 provides that “such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof. Does the MTC have jurisdiction over the counterclaim? The complaint is with the RTC. 7. 2. Problem: The complaint is with the MTC. the RTC does not have jurisdiction over the counterclaim. The exception is with regard to compulsory counterclaims. except that in an original action before the RTC. The analogy is similar to a person having 1 leg and 1 arm injured. the counterclaim may be compulsory regardless of the amount. the Supreme Court said that the filing fee will be determined by the amount prayed for with respect to all the damages. Rule 9. The number of rights violated would be the number of causes of action. the court would have jurisdiction over the compulsory counterclaim. A counterclaim is compulsory when: a) it arises out of. b) it does not require for its adjudication the presence of 3 rd parties of whom the court cannot acquire jurisdiction Under Sec.000. failure to state a cause of action It is important to note that compulsory counterclaims have no filing fees (the problem however is that the clerk of court does not have the judicial power to determine whether the counterclaim is compulsory or not). there is only 1 cause of action. Motions to Dismiss a. . The counterclaim is for P10. Does the RTC have jurisdiction over the counterclaim? Answer: The general rule is that the court must have jurisdiction over the nature and the amount.

Answer: No answer. The exception refers only to amount and not to the nature. Remember. the general rule is that one cannot alter the theory of the original complaint. The exception refers only to amount and not to the nature.as to the amount and the nature thereof. Parties can augment or amplify but they cannot depart from the original theory of the pleading. as where they involve many of the same factual and/or legal issues. In a separate case. Problem: A wife files an action for separate maintenance. as to the amount and the nature thereof. except that in an original action before the RTC. filing a reply according to Prof. Bautista may be useful if one wants to bring in new matters. adultery being the ground. The test for determining whether the counterclaim is compulsory is the logical relationship between the claim alleged in the complaint and that in the counterclaim. Although the reply is optional. it is important to see if there is a substantial alteration of the cause of action or if there is merely an amplification. Generally courts are stricter with amendments of the complaint. The husband answers with a counterclaim for legal separation. In order to bring in new matters. the plaintiff can always file another case. PROBLEMS AND CASES ON PLEADINGS: Q: Is there a need for new summons if the complaint is amended? A: It depends. If the courts do not allow the amendment. The husband files a motion to dismiss on the ground that the paramour’s action is a compulsory counterclaim which is barred.e. except that in an original action before the RTC. where separate trials of each would involve a substantial duplication of effort or time by the parties and the courts. The courts are more liberal in amendments of answers. the paramour files an action against the husband for libel because of the husband’s malicious imputation. In amendments of pleadings. Cross claims are permissive when: a) the cross claim is outside the jurisdiction of the court b) the court cannot acquire jurisdiction over the parties It is always important to remember that cross claims must always arise out of the same transaction. the counterclaim may be compulsory regardless of the amount. the counterclaim may be compulsory regardless of the amount. i. The husband impleads the paramour as a defendant in the counterclaim. A party does not suffer any adverse consequences if he does not file a reply since new matters are deemed controverted if no reply is filed. a) YES if new D is added b) YES if complaint amended as a matter of right before answer is filed c) NO if with leave of court after answer has been filed . file a reply.

can this be done? A: NO! If it involves new matters. D puts up the defense of PAYMENT but D later on moves to amend his answer. 10. Q: A supplemental complaint changed the cause of action in the original complaint. Substantially. 5) Q: What if the complaint only contains conclusions of law? A: Ask The court for a BILL OF PARTICULAR (R 12 – need for definite statement of any matter not averred with sufficient definiteness or particularity to enable him to properly prepare his responsive pleading) Q: What is an example of conclusion of law ? A: “defendant drove negligently. The supplemental complaint must relate to the cause of action in the original complaint. D and E. A filed a motion to amend the complaint. Can this new theory be allowed? A: No (this is the answer before because it would amount to a substantial amendment of the theory of the case as then provided) But I submit that under the new Rule (R. . The complaint said that: 1. S 3).Q: Is leave of court necessary for the plaintiff to amend the complaint? A: Again. thereby anchoring legal theory on a breach of contract. On such date. 2. But if you disallow an amendment to an answer. that the plaintiff was a passenger in D’s bus. SUPPLEMENTAL: facts arose AFTER the filing of the original complaint.e. there is a substantial amendment? A: (No answer but I infer that the answer depends). Q: A sued B for damages in the original complaint based on tort. wala na. But in the above case. this may be allowed because the only ground for the court to refuse the amendment is when the motion to amend appears to be made with INTENT TO DELAY ) Q: If you change the legal theory. The plaintiff can still file another complaint. NO PREJUDICE TO THE PLAINTIFF IN SHORT. Leave of court is necessary if the D has already filed the answer. the change in theory also changes the cause of action from a tort to a breach of contract. the parties are A. it will amount to changing of facts on which the defense is based and to a substantial amendment which is disallowed. But the plaintiff can amend the complaint as a matter of right (no leave of court needed) if D has not filed and served his answer. C. thereby changing his previous defense of just payment/ Is that okay? A: Greater liberality is shown by the courts in allowing amendments of answer than amendments to complaint. Additional allegations were added in the complaint. saying that the PN was executed upon P’s fraudulent inducement. C or 3rd party. Q: So what is the difference between an amended and a supplemental complaint? A: AMENDED: facts already occurred while the original complaint was filed. it depends. BY FRAUD OR MISREPRESENTATION. Q: In an action on a PN. D induced P to accept in payment a PN annexed(?) to A. it will change the theory of the case. plaintiff rendered certain services to D on Saturday. Then. B. Q: Action to recover a sum of money. B filed answer. Suppose in a case. does it mean that you change the cause of action? Is the legal theory that which characterizes the operative or constitutive facts of the cause of action. S.” Q: How to make it statement of ultimate facts? A: “defendant drove without brakes. Does it mean that if you remove E. B. i. Complaint was amended on the theory of FRAUD. WHY? Because if you allow amendments to the complaint. Q: In what cases may an amendment to conform to evidence warranted? A: When the facts had already been tried with the express or implied consent of the party (R 10.

1. Q: What is meant by material? A: It is material if it constitutes the cause of action. since it cannot be ascertained whether it is the fact or only the qualification that is intended to be denied. shall be deemed admitted when not specifically denied. A: Deny the motion for judgment on the pleadings. But in defense. Q: You filed an action for damages wherein you allege in the complaint that D negligently drove his vehicle without regard to the conditions of the road. etc. 1): 1. D said that obligation was paid by the PN but he did NOT specifically deny the allegation that the note was forced upon the plaintiff by fraud or misrepresentation. and the denial is conjunctive. 2 ND allegation is in the nature of an anticipatory defense to D’s defense of payment by PN.In the answer. As stated in one case (Galofa v. R 9 s. Nee Bon Seng 22 SCRA 48): “a denial in the form of a negative pregnant is an AMBIGUOUS pleading. D answered with a negative pregnant. Q: What are the 2 kinds of specific denial? A: 1) D to specify each material allegation of fact the truth of which he does not admit and whenever practicable. Q: What rule prohibits a negative pregnant? (bad pleading) A: R. Can you move for judgment on the pleadings? When is judgment on the pleadings proper? A: Yes. . Material averments in the complaint. other than those as to amount of damages. Rule on the motion. s. 8. A negative pregnant is a denial pregnant with admission of the substantial facts alleged in a pleading. a negative pregnant exists and only the qualification or modification is denied while the act itself is admitted. traffic. Where a fact is alleged with some qualifying or modifying language. Q: What is the effect of a negative pregnant? A: It is an admission of the substantial averments in a complaint. 10 (2nd sentence) … Where a defendant desires to deny only a part of an averment. he shall specify so much of it as is true and material and shall deny only the remainder. an answer fails to tender an issue 2. shall set forth the substance of the matters upon which he relies to support his denial. this receipt was obtained by D by misrepresentation. P now moves for judgment on the pleadings on the ground that there was implied admission of that allegation in the complaint which was not specifically denied. Is the allegation of the complaint to the effect that there is misrepresentation deemed to have been impliedly admitted? A: No. Q: Complaint for a sum of money alleges that D borrowed money from P and has not paid it on maturity and while D holds a supposed document purporting to be a receipt for payment signed by P. s.” Judgment on the pleading is proper when (R 34. The allegation need NOT specifically be denied under pain of an implied admission because it is NOT A MATERIAL ALLEGATION as to the cause of action. an answer admits the material allegations of the adverse party’s pleading. In CAB. D’s answer does not deny the allegations of the complaint with respect to the objections over the receipt of payment by misrepresentation. Q: What is a negative pregnant pregnant with? A: It is pregnant with admission. the allegation that the services were performed and an obligation as incurred therefor. Only the material facts are deemed admitted.

When complaint alleges USURY (R. Note that failure to deny the PN (actionable document) only means admission of the genuineness and due authenticity thereof . nothing more. Now. Would that evidence be admissible? A: YES. R 9. S. In what cases is a reply mandatory or where failure to reply would have adverse consequences? A: In cases where: 1. the responsive pleading to which is an ANSWER (not a reply) so that it is only when “allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath” (in the answer). In Ras v. otherwise the new matters will be deemed admitted.) Q: When must a D answer under oath? 1. D would like to introduce evidence to show that he signed the note as an agent for an undisclosed principal and not for his own behalf. 9. Q: Is the prayer in the complaint an essential part of the complaint? What is the legal significance of the prayer? A: Yes. Here.2) where a D is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint. S. all the new matters alleged in the answer are deemed controverted “(disputed). There is no specific denial of the genuineness and authenticity of the attached PN. 11 refers to the complaint.. 5). Resolve. 2. there is a need for a reply. 18. S. Sua. he shall so state and this shall have the effect of a denial. Q: What happens when an attorney of record does NOT SIGN a pleading? A: That pleading may be STRICKEN OFF the record so it is without any legal effect (R 7. Q: Action to recover damages arising from physical injuries incurred in a vehicular accident estimated to be P50T. R. s. 11 (Allegations not specifically denied deemed admitted. S. And this is the case where the other party is IN DEFAULT (R. At the trial. S. The answer contains nothing but general denials. The evidence does not relate to the genuineness and due execution of the PN. Q. Note also that re USURY. answer is based on actionable document (the genuineness and due execution of which will be deemed admitted if the document is not specifically denied under oath (R 8. 3) . S. 11 says that x xx “if the party does NOT file such reply. Bautista: There is one instance wherein the court cannot award more than what is asked for in the prayer or any relief different from what is asked for. 7. S. 8) Note: New Rules does not anymore say that when the answer raises NEW MATTERS. the prayer serves as a limitation. A: Motion GRANTED because of R 9. the court said: it is not the caption of the pleading but the allegations therein that determine the nature of the action and the court shall grant the relief warranted by the allegations and the proof even if no such relief is prayed for. when complaint pleads an actionable document because failure to deny under oath means admitting the genuineness and due execution of that document. 2 (c) requires the prayer as part of the body. 11) because allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath. Plaintiff moves for judgment on the pleadings. R 6. Q: Action on a PN which was made an integral part of the complaint.

It does not state facts showing what acts were done and how unlawfully they were executed. Q: Same facts. The Court may hear the matter on affidavits and depositions presented by respective parties. provided that: 1.) . While motion pending resolution. in what instances may the court direct that an order be served on the party himself and not on the attorney of record? A: When the court directs something to be done by the party himself. (compare this with R 16. Suit was for recovery of P17T principal. a bill of particulars was filed and on 8/1. (Note that the jurisdictional amounts under BP 129 exclude attorney’s fees and the amounts are increased to P200T and P400 T in Metro Manila for RTC jurisdiction). P3 T interest and P3T attorney’s fees.Order of denial of MTD received When is the last day for D to answer? A: July 6 because under R 16.Q: When a party is represented by counsel. S 7) re Evidence on Motion. Case: Rosario v.Summons served with copy of the complaint (so until 7/16 to answer) July 10-MTD filed (4 days left to answer) 8/1 . such is of a kind of mixed conclusion of fact and law. Q: Is a complaint which alleges that defendant negligently drove his car causing injuries to the plaintiff sufficient? Why? A: Yes. where the amendment is allowed. they relate to the transactions. Is the amendment proper? A: MTD not a responsive pleading (R 10. occurrence. the result would be that the court is conferred jurisdiction over the subject matter where it had none in the first place and this cannot be allowed. which are succinct and have a definite meaning to lawyers and is deemed a sufficient allegation. D received order of denial of Motion for BOP. Q: Can new causes of action be alleged in a supplemental complaint? A: Yes. P amended complaint and increased attorney’s fees to P5T. When is the last day to file his answer? A: 8/16. S 2) so amendment is allowed as a matter of right. ***Bautista thinks it is arguable that such amendment conferring jurisdiction on the court which originally had none is allowed when the P is making the amendment as a matter of right. R 12 S 5 says the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion. Carandang A proposed amendment may be refused when it confers jurisdiction on the court in which it is filed when the cause of action set forth is not originally within the court’s jurisdiction. Q: As a general rule. S4. Complaint filed in RTC. Q. 4… within the BALANCE of the period…but not less than 5 days in any event. which shall not be less than 5 days in any event. HOWEVER. It does not enable the D to plead and prepare for trial. MTD on the ground of subject matter jurisdiction. they relate to the subject matter of the pleading sought to be supplemented Q: July 1. Q: How about a complaint that alleges that D caused P injuries in an unlawful manner? A: Insufficient. events which arose since the date of pleading sought to be supplemented and provided further that 2. What if on 7/14. the D must answer during the balance of the period to file an answer but in no case shall this be less than 5 days. when should a pleading be verified? A: When you assert facts which are not of record (R 133.. S.

S. MOTIONS Motions are not pleadings.claim/demand has been paid. A motion is an application for relief other than by a pleading. When is service complete? A: Personal service - upon actual delivery Ordinary mail  upon expiration of 10 days after mailing unless provided otherwise Registered mail - upon actual receipt by addressee or after 5 days from date of first notice of the postmaster Q: D filed motion for BOP.. waived. A: MTD denied. (Rule 133. S 4) Q. S. abandoned or otherwise extinguished ♦ Rule 16. P opposes MTD on the ground that objection to improper venue was not raised in the first instance and so deemed waived. not necessarily his residence. elevate it to the higher court at once on certiorari. Bautista says that questions on venue must be raised at the earliest time possible because you have to resolve it at once. However. res judicata 5. case law on substantial amendments to complaints ( those that alter the cause of action) 3. D files motion to dismiss for improper venue. S.. A can be served with summons at AIT hotel because under R 14. Is this proper? Can A be served with summons in AIT hotel? A: A cannot make QC the venue of his suit because it is not his residence (R 4). the court may hear the matter on affidavits or depositions presented by the respective parties. but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. He is not from QC but from Surigao. 1(e):MTD ground. splitting of cause of action 2. if personal service is effected and not substituted service. Sec.Q: How many days to answer 3rd party complaint? A: 15 days (R 11 S 5) Q: How many days to answer complaint in intervention? A: 15 days (R 19. Re service of pleadings. 1 (f) VII. litis pendentia ♦ Rule 16. He makes QC the venue of his suit against B who is in Surigao. Within the time for filing pleading.there is another action pending b/w same parties for same cause 4. rule v. 7) Q: What motions don’t have or need not have to bear notice of hearing? . Q: A stays in AIT hotel for a few days. it is okay to serve A with summons wherever he may be not. Rule on MTD. 1 (h). rule on sufficiency ♦ Rule 16. CAUSE OF ACTION : central concept of the Rules 1. This was denied. When a motion is based on facts not appearing of record. So if an objection to venue is denied.

” The government is especially critical with respect to motion for new trial which as you know includes motion for reconsideration. If a motion for new trial for instance has such defective notice of hearing it will amount to no motion at all. Please submit the foregoing motion for reconsideration for approval of the court on such date and time as may be convenient to it. place and time of hearing. OBJECTIONS TO PLEADINGS (also. The motion will be tantamount to no motion at all and to use the colorful language of the court. This is a defective notice of hearing of motion. it will not interrupt the running of the period for the finality of the judgment which will then become executory. without going to a fulldress trial: (1) MOTION TO DISMISS (a) Rule 16 • A court may dismiss motu proprio a case on the following grounds (Sec. This cannot be made dependent on the clerk. Q: Suppose a motion is filed on July 1.A: Bautista: Motions made ex parte. July 4. it can be deemed “an outlaw that can be slain on sight. in the afternoon of the next working day. There are various devices by which a civil action may be pre-terminated. it is strictly enforced. The burden is on the party or the movant to set the date. Such is the importance of the form of the notice for hearing. Rule 9): (i) lack of jurisdiction over the subject matter . not controversial.1. Therefore. place and time of hearing. WAYS OF CHALLENGING PLEADINGS) Most objections to pleadings would concern the complaint. can you imagine a motion with a notice of hearing worded like this: Clerk of court Regional Trial Court of Makati Branch 5 Greetings. The receipt for the form of the notice of hearing advises the adverse party of the date. Example: Motions of continuance and where matter is not litigable. Q: What is motion day under the rules? A: Except those motions requiring immediate action all motions should be scheduled for hearing on Friday afternoons or if Friday is a non-working day. When is the earliest time that it can be set for hearing? A: After 3 days. VIII. It is mandatory. Failure to comply with this requirement as to form will result in a fatal defect.

The lack of earnest effort to resolve the matter between husband and wife is a condition precedent to the cause of action for the recovery of money such that the . facts inadmissible in evidence. Rule 14 abandons the old rulings of the Supreme Court to the effect that a motion to dismiss on the ground of lack of jurisdiction over the person should be based exclusively on that ground. the general rule is that if a Motion to Dismiss has been filed.(ii) (iii) (iv) litis pendentia res judicata prescription of the action • The general rule however is that a motion must be filed in order to dismiss a case. Is it correct to say. Problem: Defendant files a motion to dismiss on the ground of lack of capacity to sue. Rule 16) Dismissal by motu proprio is the exception. Rule 15. matters contained in the annexes attached to the complaint. • The following are the possible rulings a court can make in a Motion to Dismiss: (1) grant the motion (2) deny the motion (3) amend the pleading Under Sec. 3. the defendant may now give other grounds other than the fact that the court has not acquired jurisdiction over the person – special appearance. the court is limited to the consideration of the allegations of the complaint which are all deemed to be admitted? A: Matters which are outside the complaint may be considered by the Court as in matters of judicial notice. Can the defendant re-plead lack of capacity to sue as an affirmative defense? Answer: No. Q: H sued W for a sum of money. But according to Prof. • Sec. there is no more deferment. motion to dismiss was filed citing lack of earnest effort to resolve the matter. Bautista. The exceptions would be: (1) lack of jurisdiction over the subject matter (2) litis pendentia (3) res judicata (4) prescription of the action (the exceptions to the Omnibus Motion Rule) Q: Ground for dismissal is failure to state cause of action going to the sufficiency of the allegations of the Cause of Action (not the lack of cause of action). he thinks that parties should be able to appeal right away if the motion to dismiss is denied. the order being interlocutory. • It is has been held that a denial of a motion to dismiss is not appealable. Thus. Garcia: Court can disregard allegations in the complaint which are legally impossible facts. as an absolute rule. The court denies the motion. 20. 8. Wife files answer and shortly before pre-trial. The rule now is in accord with the Omnibus Motion rule in Sec. the grounds alleged in the motion to dismiss cannot be re-pleaded. A: Motion to dismiss granted. The court is no longer allowed to defer the resolution of the motion until the trial if the ground alleged does not appear to be indubitable. Marcopper vs. that in considering a Motion to Dismiss on the ground of failure to state a cause of action. (Sec. 1. Rule on the motion. Why should the parties wait right that long. Rule 16. facts appearing by record/document included in the pleading which are unfounded.

Problem: First action – A v. Q: H sues W and her lover for recovery of money. B interposed res judicata. Food for thought: • What is the test for identity of causes of action even though the first action has a different theory from the second action? . (Magabaleta vs. It is not punctuated upon such contingency. Bono) Problem: First Action – Annulment of a contract of mortgage Second Action – Foreclosure of a mortgage Should the motion to dismiss be granted or denied? Answer: It should be denied. B recover the same parcel of land this time claiming he inherited it. Motion to dismiss by defendants on the ground that earnest efforts to compromise were not exerted. C recover the same parcel of land. regardless of the party is successful. Why? Identity between the 2 actions must be such any judgment rendered on the other action will amount to an adjudication of the action under consideration. Second action – A v.failure of the husband to cite the earnest effort had been undertaken would amount to a failure to state cause of action. Although there is identity of parties and there may be identity of rights asserted yet the judgment which may be rendered in the first action does not necessarily bar the second action. it still results in res judicata with the 2nd action. Should the motion to dismiss be granted? Answer: No answer. A: Motion denied. Rule on the motion. C moved to dismiss the action on the ground of res judicata. A lost the case Second Action – B v. A lost in this case. B recover a parcel of land but before this action can be instituted B already sold the land to C. 2. Problem: First action – A v. is there res judicata? Answer: No answer. you don’t have to exert earnest effort to compromise. the allegation after filing of the answer is not too late. B to recover a parcel of land that B bought from the money of A under cestui que trust. It is applicable between the same particularly when the judgement to be rendered in the 1st action will be such that. Where 3rd party is involved. Problem: First Action – Recovery of a parcel of land Second Action – to quiet title over the same parcel of land Should the motion to dismiss be granted or denied? Answer: The motion should be denied for the same reason given in Problem 1. And since failure to state cause of action is an exception in rule 9 Sec.

the mortgagee brings action against mortgagor for foreclosure to which the mortgagor moves for dismissal on ground of litis pendentia. (See I Moran 485). when one invokes res judicata that he himself was bound in the prior action? A: NO LITIS PENDENTIA Q: What are the elements of a motion to dismiss based on litis pendentia? A: (1) identity of parties or at least representing the same interest in both actions. While that was pending. The trial court denied it. and now the rule more accurately states is… “ In ruling upon a motion to dismiss for failure to state a cause of action. That must be qualified now. The SC reversed.” Q: Is it required. WENCESLAO VINZONS TAN Facts: Forestry boundary dispute. the documents prevail. Q: The first action was to annul an REM by mortgagor against mortgagee. the determining factor as to sameness of the cause of action? • Is it necessary that all the constitutive facts be the same in order for the cause of action to be the same for the purpose of res judicata? INSUFFICIENT ALLEGATION Failure to state a cause of action is the ground and not lack of cause of action. Rule on the motion. which ruled that annexes to the complaint are part of the complaint and if the allegation in the complaint are contradicted or varied by the recitals in the annexed documents. all evidence available. This ground must be based on the allegation of the complaint which a motion based on this ground is deemed to hypothetically admit and that therefore a motion to dismiss on the ground of failure to state must be ruled upon on the basis exclusively of the allegation of the complaint. relief being founded on same facts. There are many cases. SC said that although the complaint alleged that the boundaries are here but the map presented in evidence during the injunction showed a different boundary. evidence was adduced among them a map. (3) judgment which may be rendered on the other motion will amount to res judicata in the action under consideration. all admissions already on record as of the time of the hearing of Motion to Dismiss may be validly considered together with the allegations of the complaint. then the case shall be dismissed for failure to state a cause of action. Complaint to recover certain area of forest concession. 2 (2) identity of rights asserted and relief prayed for. World Wide Surety vs. . During the hearing. So not only the allegations of the complaint but including its annexes. the defendant filed a motion to dismiss for failure to state a cause of action. and the complaint embodied an application for preliminary injunction on which there was a hearing. DIRECTOR OF FORESTRY V.• What makes for sameness of a cause of action? • Do we follow some kind of test like same evidence rule? test? • Is the sameness of the relief sought. Mc Crown (?) among them. After the injunction incident.

A: Motion for dismissal of mortgagor is not proper. Litis pendentia does not apply. Although there is identity of parties, a resolution of one case will not constitute res judicata, whatever the judgment in 1st action that REM is valid, if not yet dispose of action for foreclosure. (Tambunting vs. de Leon) Q: Petition in Bureau of Lands for issuance of free Patent over a parcel of land and another action to recover said land during pendency of proceedings in the BOL. Does it constitute litis pendentia? A: Not litis pendentia because 1st action is administrative while 2nd one is instituted in court. (Regalado, p. 155) Q: 1st action - A vs. B for recovery of land and while pending 2nd action – B vs. A to quiet title over same land. A motion to dismiss was filed by A on ground of litis pendentia. Resolve. A: Francisco vs. Vda. De Blas: Motion to dismiss sustained; there’s identity of parties, of cause of action and or relief and any judgment that may be rendered in the first case, regardless of which party is successful, will necessarily amount to an adjudication of the 2nd. Q: Case in RTC by lessee against lessor to fix period after expiration of original lease and while this was pending, lessor filed suit for ejectment on ground for expiry of lease. Litis pendentia? A: Yes. (Teodoro vs. Mirasol and see I Moran 487). The ground for dismissal if there is a pending action and not a pending prior action. The fact that the unlawful detainer suit was of later date is no bar for dismissal of the present action for declaratory relief and also the question of whether lessee has a right to occupy the land lased against the lessor is more proper in a suit for unlawful detainer under Rule 70 (Lim Si vs. Lim); since there’s already an action for illegal detainer, the suit for declaratory relief should be dismissed. What is the difference between Bar by prior judgment and Estoppel by judgment? A: The former is governed by Sec 49(b) of Rule 39 while the latter is governed by Sec 49 (c) of Rule 39. The distinction between bar by prior judgment and estoppel is as follows: In the former, any issue that was raised or which could have been raised but was not raised is barred from being raised in another action in the future. In the latter, only the issued actually raised and necessarily adjudged by the Art are barred. Other issues not raised are not barred because the causes of action of the cases are different. Bar by prior judgment is a ground for a motion to dismiss but not estoppel by judgment because in the latter, the cause of action is different. Examples of Estoppel by Judgment 1. First Action – A v B for recovery of land Second Action – A v B for damages to a piece of land In the first action, one of the issues which was necessarily ruled upon was whether a certain deed of donation was valid and it was held to be valid. If that same issue again as to validity of the Deed of donation was raised in the second action between A and B. Although the cause of action be different, that issue is already settled once and for all. Res Judicata Proper or Bar by prior judgment, the entire case is barred. 2. Unlawful Detainer which by the very provisions of the rules, a judgment in an action of unlawful detainer is conclusive only on the issue of possession so even if the judgment may contain some statements about ownership or other matters, it is not conclusive even between same parties on any other matter except on ownership.

What is the difference between bar by prior judgment and estoppel by (conclusiveness of) judgment? BAR BY PRIOR JUDGMENT (RES JUDICATA PROPER) 1. Sec 47 (b), Rule 39 2. Elements
   

jurisdiction of the court final judgment judgment on the merits identity of parties and cause of action

3. Scope of Preclusion – What is precluded is the entire action  all matters directly adjudged in the 1st case  any matter that could have been raised in relation thereto Q: What’s the difference between Res Judicata and Law of the Case (Stare Decisis)? A: Res Judicata bars the filing of the case. It involves 2 different actions. The law of the case involves only 1 litigation. LAW OF THE CASE V. RES JUDICATA - refers to different cases

-refers to what has been decided in the same case between same parties, whether right or wrong, which can’t be overruled anymore except by the Superior Court and until then, such decision is or must be upheld; 1 case involved only Note:

Both law of the case and res judicata have the effect of preclusion

Q: P v. A to recover a parcel of land but it turns out before the first action was commenced, A sold the land to X already; 2nd action now by P v. X. Decide. Is there res judicata? A: 1st case should have been dismissed for not being against the real party in interest. but, yes, there is res judicata. (R 39 S 49b). X is a party in interest by title subsequent to the commencement of the action, litigating for the same thing, under the same thing, under the same title and in the same capacity. Q: Meralco vs. CA. X sues Meralco for abatement of nuisance. Judgment was against Meralco ordering it to reduce noise to a certain decibel. Later, X found that a stipulation in the contract of sale of land by PHMC to Meralco stated that land can be used only for residential purposes. X then brings 2nd suit against Meralco for breach of contract. Motion to dismiss by Meralco. What can be the ground for dismissal of 2nd suit by Meralco. 2nd action is for recission of contract. A: Res judicata. Meralco’s contention that there is splitting of cause of action is not correct. No splitting because cause of action for abatement of nuisance is different from a cause of action for cancellation of contract. However, it does mean that a judicial proceding can’t be barred by a previous case involving another cause of action. The principle applicable would be estoppel by judgment/collateral estoppel by judgment. The issue of whether the land is for residential purpose only is necessarily adjudged already in the proceeding for abatement of nuisance. Note: Kinds/Forms of Res Judicata 1. R39 S49 – RJ proper 2. R9 S4 – Counter/Cross claim not set up is barred 3. R2 S4 – Splitting a single cause of action

4. R57 S20 – Claim for damages on account of illegal attachment (if you don’t file action against the bond for wrongful attachment before judgment in the same case, ten any form of bond is already barred) 5. R17 S3 – Dismissal for failure to prosecute in a judgment on the merits unless otherwise stated in the order. Distinction between R39 S49 b-Bar by prior judgment 1. scope of preclusio is wider; entire record is precluded 2. identity of parties 3. identity of cause of action c-Conclusiveness of judgment 1. scope of preclusion is limited to specific issues only; such issue is barred from being relitigated 2. same 3. no identity of COA

Q: How does R39 S49 apply? What is it that can no longer be relitigated? A: In conclusiveness of judgment, the judgment in the 1st is binding only with respect to the matters actually raised and adjudged therein (Viray vs. Maonas); matters so adjudged or which were actually and necessarily included therein or necessary thereto. Q: 1st action – P v A & B to annul sale of land and recovery thereof on ground that sale of A to B is in fraud of P. Judgment for A & B and sale found valid. 2nd action – A v. B to annul sale because sale was only colorable on understanding that the sale is in connivance against P and because B did not honor said agreement. B filed Motion to Dismiss. Decide. A: Carandang vs. Venturanza is case in point. Motion denied because res judicata does not apply where the present protagonists were defendants in the 1st case, except, where as co-defendants, they submitted conflicting claims between themselves. There is no identity of parties in the sense that they are placed in the same capacity and urging same right, so how can there be res judicata? In the 1st case A & B weren’t in an adversarial position as they are in 2nd Q: 1st case – P vs. contractor for damages suffered due to negligence of contractor; judgment for contractor. Later, P vs. the building owner for same cause of action. Is there res judicata? A: No answer. ESTOPPEL BY JUDGMENT (CONCLUSIVENESS OF JUDGMENT) 1. Sec 47 (c) 2. Elements a. b. c. d. 2. jurisdiction of the court final judgment judgment on the merit identity of parties

Scope of preclusion – Here only specific issues are prevented from being re-litigated  matters adjudged in a final judgment or final order which appears upon its face to have been adjudged  matters actually and necessarily included therein or necessary thereto Problem: 1st action – A vs. B to foreclose real estate mortgage. 2nd action – B vs. A to quiet title. A files a motion to dismiss.

This was denied. Answer: No litis pendentia. example: in my answer filed. Q: A stays in AIT Hotel for a few days. He is not from QC. 12) (2) The pleading alleges scandalous or indecent matter therein (Rule 7. B to fix period in a contract of lease 2nd action – B vs. MOTION TO STRIIKE OUT Q: What are the grounds for a motion to strike out a pleading or any part thereof? A: (1) The pleading contains sham. A sues C. 3) NOTE: A complaint CAN be stricken out!!! Q: What is meant by “sham”.) Nowhere in the rules does it state that the objection to improper venue must be raised at the 1st instance/1st objection. D files motion to dismiss for improper. immaterial. Problem 1st action – A vs. Rule on the Motion to Dismiss. The allegation which is good in form but false in fact. Answer: Conclusiveness of judgment. A ejectment Both A and B file motions to dismiss. B sold to C. .Answer: Bar by prior judgment Problem: 1st action – A vs. Problem: A sold to B. Sec. A. Is this proper? Can A be served summons in AIT Hotel? A: A can’t make QC the venue of his suit because it is not his residence as contemplated in Rule 4. P opposes Motion to Dismiss on the ground that objection to improper venue was not raised in the 1st instance and so deemed waived. There is no judgment on the merits. A to quiet title A files a motion to dismiss. B to recover land 2nd action – B applies with Bureau of lands A files a motion to dismiss. 4) (4) Refusal to comply with court order to submit to modes of discovery (Rule 29. B to recover land 2nd action – B vs. A: D’s motion to dismiss must be denied (Sy vs. (Rule 8. A sued B to recover what he sold to B. impertinent or scandalous matter. Sec. false. Problem: 1st action – A vs. Answer: Litis pendentia. Can A sue C? Answer: Yes because A should not have sued B in the first place since B was not the proper party. The issue of the validity of the mortgage cannot be relitigated. He makes QC the venue of his suit against B who is in Surigao. 3) (3) Non-compliance with court's order for bill of particulars (Rule 12. I allege that I am 16 feet tall. To R14 if personal service is effected and not substituted service for AIT Hotel wouldn’t be the residence of A. Sec. Different jurisdictions. MOTION FOR BILL OF PARTICULARS Q: D filed Motion for Bill of Particulars. Give examples. Tyson Ent. He is from Surigao. A lost. redundant. Sec. Within the time for filing pleading. However. There was no cause of action. A can be served summons at AIT Hotel accdg. The 1st case should dismissed even if it were filed first.

In case a separate judgment is rendered. Allegations as to the amount of damages need not be specifically denied. 2.Differentiate between motion for summary judgment and motion for judgment on the pleadings. judgment on the pleadings is still proper. So when there is no issue of fact. the court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered. at any stage. render judgment against one or more of them. certiorari • If the court denies a motion to dismiss. 4. If there is only an issue of law. Sec. That is if it is a pure question of law and it does not have underlying factual issues. then judgment on the pleading is proper. certiorari. 1. Rule 41 the Rules provide that no appeal may be taken from a judgment or final order for or against one or more several parties or in separate claims. Rule 36 provides that when more than one claim for relief is presented in an action. 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. the court. The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims. Final and executory – after appeal has lapsed. Q: How will it expedite litigation? Why don’t we allow it in all cases? A: Judgment on the pleadings is allowed when there is no issue of fact. most lawyers merely cite the denial of the motion to dismiss as an assignment of error. Rule 36 Sec. Because you do not try issues of law. cross-claims and third party complaints. Rule 36 provides that in an action against several defendants. the party can attack the denial via Rule 65. 4. Under Sec 1 (g). counterclaims. If you do this though. when a several judgment is proper. However. QUERY: Can you appeal from partial judgments found in Secs. leaving the action to proceed against the others. 3. ripe for execution Q: May defendant move for judgment on Pleadings? . while the main case is pending unless the court allows an appeal therefrom. all issues disposed of Interlocutory order – not appealable but can attack the order via Rule 65. It is not a speedy remedy. 4 & 5. 5. 4 and 5 of Rule 36? Are the partial judgments in these sections final? Can a motion for reconsideration be filed? Final and appealable judgment – can appeal. may render a separate judgment disposing of such claim. At most you argue your positions on issues of law. JUDGMENT ON THE PLEADINGS Q: What is the reason for the rule allowing judgment of the pleadings? A: To expedite litigation. you would have to go through the whole trial. Those are infrequent cases where the issues are purely law. As to grounds – When an answer fails to tender an issue or admits material allegations Who may ask – plaintiff At what stage may be invoked – after filing of the answer and before trial Partial Judgment is allowed – Secs. you do not receive evidence on issues of law. Recall when I told you about the problem when there is an issue as to damages. the court may.

4. Regalado p. although disputable. Sec. meaning it requires for its resolution a full dress hearing or a trial where you call witnesses. There is no need to spend time on factually baseless claims and defenses. I believe it’s the owner. though (the former Rule 19. Why not just present affidavits and the receipt? What is there to try? Kailangan pa ba ng testigo dyan at mag cross-examine? The classic example here in the Philippines. not moving. It involved a three vehicle accident. The plaintiffs were passengers in vehicle C which was parked properly. The vehicle C was parked properly. a copyright infringement case. Nagum. under Rule 18. negligence) As to grounds – When there is no genuine issue as to any material fact in the action Who may ask – plaintiff or defendant At what stage may be invoked – at any time before judgment Partial Judgment is allowed – Sec. Q: When is an issue as to a material fact genuine? A: An issue is genuine if it is properly triable. rape. T he lack of a cause of action means that there is an intrinsic lack of the cause of action. Sec. this is allowed. 5 requires that the affidavit should be based on personal knowledge. which moved for summary judgment to get his partial summary judgment to get off the case ahead of A and B. As far as he is concerned. for instance. it can clearly be established without need for a full dress trial that it was blameless. 230) Q: A: (1) (2) (3) (4) What is a genuine issue? There is a genuine issue if a regular trial is needed to resolve it (ex. binangga. the plaintiff sues for collection on a PN and the defendant does not deny the execution of the note but defends by saying that he has paid. The failure to state a cause of action is different from a lack of cause of action. There was a dissent by Justice Ramon Aquino who said that the affidavits are hearsay. The plaintiff claimed that the songs (Bagin and Bagin) composed by Cole Porter were copied from . when it merits trial. it is between A and B. (Aegenas v. is Estrada vs. This was not disputed in the counter-affidavits by the defendant. 1 under the pre-1997 Rules) which seems to indicate that only plaintiff may do so. during pre-trial. There is another rule. The classic case in the USA involved Cole Porter. Rule 35. Consolacion. Rule 35 Rationale: spare the court and the other party of going through with the trial. It requires an evidentiary hearing. the failure to state a cause of action can be seen by merely looking at the complaint. there should be summary judgment because there is no actual issue. A: A motion filed by plaintiff against defendant whereby plaintiff alleges damages. No. There is a point to that. MOTION FOR SUMMARY JUDGMENT Q: When is Summary Judgment availed of? A: When there is no genuine issue as to any material fact involved. If there is any triable issue of fact. operator of vehicle C.A: Yes. direct and cross exam. On the other hand. It was hit by one vehicle B because it was hit by vehicle A. Where. Prayer: asking for relief which the movant is entitled to as a matter of law Q: What is the rationale for the rule allowing summary judgment? Give an example of a case which is proper for summary judgment. Defendant answers that the amount of damages sought to be recovered by plaintiff should only be limited to this particular amount. The plaintiff filed a motion for summary judgment and they presented the traffic investigator’s report with the sketch.

him. The defendant denied it. He said that he didn’t even know the plaintiff’s composition existed. Then the defendant Cole porter moved for summary judgment. Among the affidavits he presented were affidavits of musical experts to show that the notes of his songs were radically different from those of plaintiff. The trial court granted the summary judgment. It said that obviously there can be no copying. There is no need to go to trial. The Supreme Court in the case of Eistein vs. Porter reversed and pronounced itself strongly against indiscriminate summary judgment by saying that this would result to trial by affidavits. And Justice Aquino saw that point in Estrada vs. Consolascion, when he said that the affidavits were hearsay. Kailangan ang cross examination. How can you know assure that sketch is but significantly the fact is that sketch was not disol by any counter affidavits. Now the theory of summary judgment is that court time like classroom time is very precious, very limited. It should not be noted unnecessarily on issues which don’t really need to be tried. The USSC said in the Cole Porter case, that if the complaint says that if the composition material girl was copied from Rabel’s Bolero then summary judgment could easily issue because it is obvious that they are not the same. They are very dissimilar. Anyway, the Court in that case said that there are other factual issues which need trial, for instance, accuse (?) to copying. But in the same Cole Porter, he said that dissimilarity is not like that as to warrant summary judgment. It requires trial. Estrada vs. Consolascion also stressed that after a motion for summary judgment which is to be accompanied by affidavits and deposition. The other party has 10 days to submit counteraffidavits. There should be an order first granting the motion, o the summary judgment itself. Q: A: Is partial Summary Judgment possible? Yes. R34 S4.

Q: Is such decision (partial summary judgment) immediately appealable? A: Yes. (Guevara vs Guevara) were just. Conrado Vasquez ruled that way. However, Bautista says this is wrong because what is referred to is actually R35 S5 which is Judgment at Various Stages. Q: Can defendant move for Summary Judgment even before filing answer? A: Yes. R34 S2 provides that the defendant can at any time, move for summary judgment even before or without filing his answer but with respect to summary judgment moved by the plaintiff, he can’t do so if the answer has not been filed yet. Q: Compare and contrast the following: Summary Judgment -issue of fact involved - trial by affidavits (w/o full-blown trial) Regular Trial - issued of fact and law are tried

Judgment on Pleadings -no issue of fact involved

IX.

DISMISSALS AND DEFAULTS
Important Points for Dismissals 1. When is there need for prior leave of court? • Dismissal is effected not by motion but by mere notice of dismissal which is a matter of right before the defendant has answered or moved

(1) DISMISSALS

for summary judgment. Otherwise, there is need for prior leave of court. Since it is dismissal by mere notice and not by motion, there is no need to furnish a copy to the other party. Problem: The plaintiff files today then withdraws tomorrow. What does the plaintiff do if he wants to re-file? Answer: The plaintiff can re-file, but he has to pay the docket fees again.

2. What is the effect of dismissal on a pending counterclaim? 3. Preclusive effect • Dismissals under Secs. 1 and 2, Rule 17 are without prejudice except: a) where the notice of dismissal so provides b) where the plaintiff has previously dismissed the same case in a court of competent jurisdiction – 2 dismissal rule  If the plaintiff withdraws the case for the 2nd time, then it is equivalent to an adjudication of the case. According however to Prof. Bautista, for practical purposes, how would the defendant know if the plaintiff has filed the case for the 2nd time? He probably won’t know. Therefore, for practical purposes, this is illusory. The implication is that the plaintiff can re-file even after a 2nd time.  Another reason why the plaintiff might want to keep on re-filing is to try to get another judge. c) when stated to be with prejudice in the order of court • Dismissals under Sec. 3, Rule 17 amount to an adjudication of the merits unless otherwise declared by the court.

Problem: Plaintiff files a complaint. After 6 months, there has been no service of summons. The case is dismissed for failure to prosecute. 2 months later, the plaintiff re-files the same case. The defendant files for a motion to dismiss under Sec.3, Rule 17. Rule on the Motion to Dismiss. Answer: Not granted. The first court did not acquire jurisdiction over the defendant. No summons had been issued yet. There is no res judicata either. If the complaint has been dismissed, the plaintiff in the counterclaim has 15 days to decide whether to pursue the action in the same case or in a separate action. If the complaint is dismissed before an answer is filed, there is no counterclaim to speak of. The presence of a compulsory counterclaim presupposes that the defendant was able to file an answer. Problem: A purchased a car through a finance company. The finance company files a case against A to pay for the car. The car of A is repossessed through replevin. The finance company then moves to dismiss its complaint. What happens to the replevin? Answer: According to Prof. Bautista, the plaintiff, finance company cannot dismiss the case as a matter of right since it has been afforded an affirmative relief. In fact, even if there was no need for prior leave of court,

the court must still issue an order confirming the dismissal. The purpose of the confirmation is to see to it that rights are not prejudiced (i.e. right to claim against the bond). The effect of dismissing the case would be as if there would be a taking without any hearing. Q. The rule is that plaintiff can move to dismiss (generally, w/ out prejudice) his action before answer is filed by defendant without leave of court. What are the exceptions? A: a. 2 dismissal rule – R17 S1 – prior dismissal in competent court of an action based on or including the same action/ claim b. class suit – R3 S12 Q: Plaintiff’s lawyer didn’t appear at the trial, can the Court motu proprio dismiss the action? A: No. R17 S3 says it must be the plaintiff himself who’s absent. Q : If at pre-trial, plaintiff himself doesn’t appear, can the court motu proprio dismiss the case? A : a. Yes (R17 S5 ), for failure to obey court order. See also R20 S2, the failure to appear at pre-trial may result in the party’s being non-suited/considered in default but court can’t declare party in default motu proprio ( R18 S1 ). But if the court is to give default order instead of having action dismissed, court can’t declare such without motion. b. failure to prosecute is equal to non-suit. Failure to prosecute – motu proprio/def’s motion –judgment on merits 1. failure to appear 2. failure to prosecute for an unreasonable length of time 3. failure to comply with these rules or court order Q: Other than Rule 17, are there no other grounds by which a Court can dismiss an action? Is the enumeration of the grounds for dismissal in Rule 16 exclusive? Do you need a Motion always or can the court dismiss action motu propio? A: Court can dismiss an action motu propio for any of the 4 grounds enumerated in Rule 9, Sec. 1. (2) DEFAULTS Default occurs when the defendant fails to answer within the time allowed. The court may also order a judgment by default against the disobedient party if such party refuses to comply with the modes of discovery (Sec. 3 (c), Rule 29). If the defendant fails to appear at pre-trial, this is cause for allowing the plaintiff to present his evidence ex parte and the court can render a judgment on the basis thereof. If the plaintiff does not appear at pre-trial, then it shall cause the dismissal of the complaint. Q : What is the order/sequence of a party’s being in default? A : Ist – Motion to declare party in default. 2nd – Order of default -party not entitled to participate, 3rd – Judgment by default Grounds for Declaration of Default – Failure to answer within the required time How Declaration of Default is made – Only upon motion of the party not in default Q: Can a court motu propio declare a judgment in default? A: No. See Rule 9 Sec. 3.

Q : Can the defaulting defendant appeal without filing a motion to set aside Judgment of Default? A : Yes. In this case. 6. Opposition -. can file a motion for reconsideration when there has been judgment by default. According to Prof. If the order of default is illegal then there is no need for an affidavit of merits. he does not like filing a motion to declare the party in default since the other party will merely file a motion to set aside the order of default. If the motion to set aside the order of default is granted. the basis of the court’s judgment would perhaps be an admission by silence. Petition for relief from judgment Certiorari.Effect of Declaration – The court shall proceed to render judgment granting the claimant such relief as his pleading may warrant. The defendant may take part in the trial or the defendant regains his standing upon the granting (not just the mere filing. Remedies of a Party Declared in Default 1. par-3. Bautista. According to Prof. if the court decides that there is no need for the plaintiff to present evidence. Motion to set aside order of default -.when the other party files a motion to declare the opposing party in default 2. 5. Q : A Motion to Set Aside Order of Default is denied because no affidavit of merit is attached. • It lies within the discretion of the court whether or not the plaintiff shall present evidence. such order cannot be appealed. did not file a motion to set aside in default. Appeal • After judgment has been rendered. The movant must cite his grounds accompanied by an affidavit of merits. A : If the declaration of default is illegal/improper. It’s as if there was no default. The remedy is certiorari. the defendant has a clean slate. 3. Courts usually give defendants a chance. R41 S2. appeal is available even if the party in default did not file a motion for new trial. .when there is an order of default • • • • This may resorted to anytime. 4. Decide. Motion for new trial or motion for reconsideration • The party in default cannot file a motion for reconsideration to set aside the order of default. Rule 65 • Since the order declaring the party in default is interlocutory. then affidavit of merit must be attached. the party in default cannot take part in the trial but is still entitled to notice of subsequent proceedings. then the motion need not be accompanied by an affidavit of merit. The party in default however. If improvident declaration (given based on mistaken assumption / misleading information / advice). unless the court in its discretion requires the claimant to submit evidence. Rule 65. He is not merely given a chance to cross-examine. I think) of a motion to set aside an order of default. Bautista.

even if a bond is filed. P amended complaint to drop DEF & court granted it. provisional remedies come in before final judgment. X. that’s why the US Supreme Court struck down most of them since these essentially violate due process. A judgment rendered against a party in default cannot: a) exceed the amount b) or be different in kind from that prayed for c) or award unliquidated damages   According to Prof. The bonds do not fully relieve the infirmity For example. the defendant can perhaps afford the sum prayed for. It is essence though is theoretically a provisional remedy since it gives provisional relief to the movant. Decide.F jointly and severally . Sec 3(c) provides that the court must try case against all upon the answers filed & render judgment upon the evidence presented. The prayer serves as the upper limit of the amount and kind for judgments by default.E.D. Please check if this is still applicable under the new rules.B. Rule 9. A.C. (1) NOTICE OF LIS PENDENS Lis pendens is not really a provisional remedy. ABC declared in default. A : Wrong move by court. Ex-parte presentation of evidence against ABC. the Generally. These are prejudgment remedies. Reasons: a. Q : P v. Bautista. CA. In the case of Matute v. Perhaps he sees no need to spend for a lawyer. Q : Is certiorari available against an order of default? A : No since the remedy of Motion to Set Aside Order of Default is still available. Limitations on Judgment by Default 1.Q : Can a party in default question the legality of the Order of Default even if he has not filed a Motion to Set Aside Order of Default? A : Yes. b. it was stated that judgment by default /order of Default may be declared void in an appeal even if no Motion to Set Aside it is filed. Also. dropping DEF is a substantial amendment in the pleading that will expand the liability of defaulting defendants (Lim Tan Ho v. cannot occur for the following cases: a) annulment of marriage b) declaration of nullity of marriage c) legal separation 2. The notice of lis pendens . this is logical since the law assumes that the defendant is willing allowing himself to be declared in default. These provisional remedies are not final. Arboleda). PROVISIONAL REMEDIES Provisional remedies are also known as auxiliary remedies (in aid of). For example. it doesn’t fully compensate the person since there is a prohibition to transfer the property until the litigation is terminated.

there is a need for preliminary attachment since it is highly likely that there will be prejudice to the applicant. this is tempered by the fact that it will not be allowed unless the grounds enumerated by law are present. For example. Although it may seem that preliminary attachment is very harsh. The function of attachment is 2-fold: 1. either express or implied. Rule 57 since the amount of damages must be specified. 2. attachment may now issue for quasi-delicts. unliquidated claims cannot be recovered under Sec. It serves as a warning to all would-be buyers. the fraud there refers to both . Before it was only limited to contracts. not necessary to protect the rights of the party (2) PRELIMINARY ATTACHMENT ( May be granted Ex parte ) Quote from Sir: Ballroom dancing is harder than learning the Rules of Court kasi it doesn’t make sense. These grounds are limited. Q. For how long is a notice of lis pendens good? A : For as long as it is not cancelled by the court. Previously. Bautista. Prevents the loss of property by fraud or otherwise It subjects the debtor’s property to payment of CR’s claim in those instances where personal service cannot be obtained upon the debtor.affects the alienability of the property. This is child’s play if you understand. Q . In Sec. Q . Also. Q: What is the purpose of attachment? A: As a security for the satisfaction of any judgment that may be recovered in the uses enumerated in Rule 57. it seizes the property of an alleged debtor in advance of final judgment and holds it subject to appropriation in satisfaction of the judgment if finally obtained. it was allowed only for dolo causante. Therefore. prospective purchases or incumbrances of the property in litigation to keep their hands off the property in litigation. What are the grounds for cancelling? A. A second significant change is that attachment can issue for cases of both dolo incidente and dolo causante. Rule 57. Rule 57. Q : What is the purpose of lis pendens? A : A notice of lis pendans is a notice of pending action between the parties involving title or the right possession over real property. 1 (d). For practical purposes therefore. Under the 1997 Rules of Court. unless they are prepared samble on the result of the proceedings. the property which is the subject of litigation cannot be attached. 1 (a). They are litigious and involve issues of fact. Claims arising from quasi-delict cannot be resolved summarily. 1. it operates like an attachment. no one would buy the property. In Sec 1 (b). According to Prof. insolvency is not a ground for attachment. It serves a warning to all persons. The rationale was that it was easier to evaluate the merits of whether or not to issue the attachment. The probable claims are based on the contract itself. Purpose of molesting the other party 2. except that a notice of lis pendans only involves real property. A notice on lis pendens would operate like what kind of provisional remedy? A : Attachment.

Merely temporary. Rule 57 refers to natural persons only and not to juridical persons. Regular: B. Q : What is the difference between attachment and garnishment? A : Attachment usually refers to property being levied upon or being taken into actual custody of the sheriffs whereas garnishment is a notice of sequestration.fraud causante and incidente. The rationale according to the Supreme Court in one case is that garnishment does not involve asking how much money there is in the bank (although if the bank deposit is not enough. property in the Attachment of money. Sec. Rule 57). Garnishment: Attachment of corporeal possession of the party. 1 (f). According to availability and effects: A. • The garnishee is a forced intervenor since he is forced to respond because he holds the property. B. Preliminary: resorted to at the commencement of the action or at any time before entry of judgment. also known as levy upon execution. For the satisfaction of a judgment. It merely involves knowing whether the debtor has a bank deposit in that bank or not. The movant can file for preliminary attachment any time before entry of final judgment. Thus. However. garnishment – a species of execution • involves a notice of sequestration • refers to incorporeal property • The Bank Secrecy Law does not apply in cases of garnishment. According to form and procedure of enforcement: A. 1. and other incorporeal property which belongs to the party but is in the possession or under the control of a third person. . 5. the writ cannot issue unless preceded or contemporaneously accompanied by service of summons (Sec. CLASSIFICATION OF ATTACHMENTS: I. you will find out). The issuance of the attachment order and the writs are done by the courts only. There are 2 kinds of attachment: 1. Rule 57). stocks. Final: available after the judgment in the main action has become executory. the order of attachment can be issued even before summons since it can be filed at the commencement of the action (Sec. credits. attachment proper • involves actual physical custody • refers to tangible property 2. II.

PROCEDURE IN PRELIMINARY ATTACHMENT (1) Party files a motion for preliminary attachment in the court in which the action is pending. (b) The ground for the application is covered by the instances provided for in Rule 57. and issue its order accordingly. or at any time before entry of judgment (2) Applicant (or some other person who personally knows the facts) must submit an affidavit stating. if the court shall finally adjudged that he (applicant) was not entitled to the writ. 1. including:    a defendant on his counterclaim. (3) Applicant must then give a bond executed to the adverse party in the amount fixed by the court in its order. (c) There is no other sufficient security for the claim sought to be enforced by the action. (Of course it goes without saying that the adverse party must have notice of the motion. (6) If the court grants the writ. Sec. (4) The court will proceed to hear the motion. is as much as the sum for which the order is granted above all legal counterclaims. 3rd party plaintiff on his 3rd party claim When: at the commencement of the action. Notes: The property attached should: . a co-party on his cross-claim. or (2) To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. or in the CA or SC.PURPOSES OF PRELIMINARY ATTACHMENT: (1) To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment. then the sheriff shall enforce the same without delay and with all reasonable diligence. (5) The court will then decide on whether or not to grant the writ. among others that: (a) His / her cause of action (which must be found to be existing and sufficient). or the value of the property the possession of which he is entitled to recover.) Who: Any party. Conditions of the bond: The applicant will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment. (d) The amount due to the applicant.

description. (4) The action is one in rem or quasi in rem (7) After enforcing the writ. (2) the defendant is a resident of the Philippines temporarily absent therefrom.) MODES OF ATTACHING PROPERTY: Real property. (3) The defendant is a non-resident of the Philippines.(1) be located in the Philippines. (b) Complete inventory of the property attached. (7) The sheriff may then cause the judgment to be satisfied out of the property attached as follows: (Please fill in. Enforcement of the writ must be preceded or contemporaneously accompanied by the following: (1) (2) (3) (4) (5) Service of summons. or with such other person or his agent if found within the province. The exceptions to contemporaneous service of summons are: (1) where personal or substituted service of summons could not be effected despite diligent efforts. and notice with the occupant of the property. and The order and writ of attachment. (2) belong to the party against whom the writ is issued. The return must be accompanied by the following: (a) Full statement of proceedings under the writ. if any. or standing crops thereon or any interest therein By filing a copy of the order with the Register of Deeds. make a return of the writ to the court which issued it. A copy of the applicant’s affidavit and bond. Personal property capable of manual delivery . and Leaving a copy of such order. without delay. or his agent. A copy of the complaint.  AT THIS POINT. (3) not be exempt from execution. may move for the discharge of the attachment wholly or in part on the security given. the party whose property was attached. the sheriff must. (4) be sufficient to satisfy the applicant’s demand (not excessive). The sheriff shall also serve copies of the foregoing on the applicant. given by the party against whom attachment was issued. together with a description of the property attached. (c) Counter-bond. if any. A copy of the application for attachment. and a notice that it is attached.

By taking and safely keeping it in his custody. Answer: No. Stocks or shares of any corporation or company. and the proper notice Interest in property belonging to the estate of a decedent By serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice. an Accord. or even after the release of the attached property . and a notice stating that the stock or interest is attached in pursuance of the writ Debts and credits and other personal property not capable of manual delivery By leaving with the debtor. and Serving a notice of the attachment upon the custodian of the property. Problem: Can the attaching creditor attach an overdraft? An overdraft is an accommodation by a bank – a loan. or an interest therein By leaving with the Pres. and a Camry. ALL PROPERTIES EXEMPT FROM EXECUTION ARE THE PROPERTIES EXEMPT FROM ATTACHMENT. cannot attach an overdraft. That would be tantamount to compelling the person to borrow money If the sheriff for example attaches a car. legatee. and Serving copies of the writ and notice upon the heir. etc. The sheriff cannot deliver the car to the plaintiff as that would be a replevin. Property in custodia legis By filing a copy of the writ with the proper court or quasi-judicial agency. the sheriff takes the car and stores it in a warehouse. or devisee concerned. MOTION TO SET ASIDE / DISCHARGE ATTACHMENT: Who files: When: party whose property has been ordered attached While the action is pending. or his agent a copy of the writ. before or after levy. there is no order. or managing agent thereof. or person having possession or control of the credits or other personal property. The plaintiff would have to pay for warehouse fees. a copy of the writ. Differentiate between attachment and execution. Can the plaintiff tell the sheriff which to take? Answer: Unlike execution. Problem: Defendant has a Benz. Filing a copy of the writ and notice with the clerk of the court in which the estate is being settled. Even property in custodia legis is allowed to be attached. There are significant differences. and issuing the corresponding receipt therefor.

Rule. relying on Sec. • The value of the property is determined by affidavits. • a) b) c) Recovery against the attachment bond must be filed (sec. no ground for attachment.. good faith is irrelevant. (6) The property attached is exempt from execution and preliminary attachment. • The general rule is that the plaintiff-creditor must file a claim against the counterbond in the same action. Trial ensues. • For the adverse party to collect actual damages. it will be decided by the court. Rule 57) before trial before appeal is perfected before judgment becomes executory • The time is limited because the issue is whether or not the adverse party or creditor is entitled to the attachment. The counterbond is filed. 20. So. or (4) The bond is insufficient. For the adverse party to collect moral damages. judgment is rendered in favor of the plaintiff. (2) The writ of attachment was improperly or irregularly issued. (5) The attachment is excessive (Note: the discharge shall be limited to the excess). Problem: Plaintiff attaches and levies property. At the end. (2) Counterbond • The amount is based on the value of the property. Rule 57. • Conditioned that the applicant will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment . 20.Grounds: (1) The debtor has posted a counter-bond or has made the requisite cash deposit. E. • The counterbond is liable if judgment is rendered in favor of the attaching creditor and the judgment cannot be satisfied. in case of disagreement as to the value. There is an exception – if the main action is dismissed for lack of jurisdiction or improper venue. if the court finally adjudge that the applicant was not entitled thereto. Defendant-debtor argues that the plaintiff-creditor cannot recover against the counterbond since the judgment is now final and executory. Plaintiff-creditor recovers against the counterbond even if the judgment is final and executory. . 3 Kinds of Bonds (1) Applicants Bond (Attachment Bond) • The amount is based on the amount due or the value of the property. affidavit filed is defective or Insufficient (3) The writ of attachment was improperly or irregularly enforced. the party must allege bad faith. It is not conclusive.g. (7) The judgment is rendered against the attaching creditor.

What will the sheriff do with the affidavit? A. Problem: After trial the judgment is rendered in favor of the plaintiff. Rule 57 refers to recovery against the attachment bond and not against the counterbond. Sec. The sheriff sees that the defendant has property in Pasig. Q. He has a right to possession 2. • The value of the property is determined by affidavits.. itself (Manila Herald Publishing v. Adverse party has no claim to property Q : Does he have to give supporting documents? A : Rules do not say. Q. it will be decided by the court.C. RTC Pasig is merely telling the sheriff not to levy on that property in Pasig. Where is affidavit filed? A. . The amount is based on the value of the property. The defendant files a notice of appeal. It is not conclusive. rules in favor of the plaintiff. Ramos) What are the remedies of a 3rd party claimant? 1. the 3rd party claimant should file an affidavit with the following essential recitals: 1. So.C. with notice that if attachment creditor does not give bond. This is not interference by RTC Pasig. Grounds of such right 3. this is allowed. • The bond answers for damages which 3rd parties may suffer when the sheriff does not re-deliver the property to them Problem: RTC Q. The defendant gets an injunction from RTC Pasig to prevent the sheriff from levying on the property. since the rules don’t distinguish if appealing is pending or not for as long as the judgment is unsatisfied. officer shall relinquish possession of property. Can the plaintiff recover on the counterbond pending appeal. Answer: Yes. Serve to the party attachment creditor. Is this allowed? Answer: Yes.Answer: The plaintiff-creditor can recover against the counterbond even if it is final and executory. (3) Sheriff’s Bond (Indemnity Bond) • • The sheriff’s bond is filed by the plaintiff. in case of disagreement as to the value. 3rd party claim Under Sec. A writ of execution is issued. 20. With the sheriff. It is not interfering with the judgment of RTC Q. 14.

Al. 32 Phil. Means. If there is malice. Bull & Co.  These remedies are cumulative (not mutually exclusive). 5.• If the 3rd party claim is denied by the court. reinvindicatory action – action to recover title damages –recover against the indemnity or sheriff’s bond within 120 days from the date of the filing of bond cancel annotation – see Property Registration Decree If attachment is levied on real property. Tuano. The remedy of the 3rd party claimant would be to intervene. Gasayta v. certiorari. or some of them are untrue. 3. Bangue General v. Q: When is he liable? A: If judgment is for the defendant. he is liable for damages just the same. 2. However. he may file petition in land registration court for the deletion of the annotation under the property Registration Decree on the ground that the annotation was made through error or mistake or fraud. (Check this!) Q : It is mandatory for the court to dissolve the attachment or to lift it upon the proffer of a counter bond? . 7/31/61 Q: When is the counterbond liable? A: When the judgment is in favor or the creditor and it is returned unsatisfied. Q : Is good faith a defense to a claim for damages for wrongful attachment? A : It depends on the type of damages: Reco v.12736. 4. Q: Why is there a time limit for damages? A: Because the issue is WON the creditor was entitled to the attachment.. L. the 3rd party claimant cannot recover twice. 245 XXX the mere fact that the plaintiff dismisses his action renders him liable for damages sustained on account of the attachment issued his instance. et. moral damages can be additionally be claimed (Lazatin v. although he may have acted in good faith. 34 Phil. the adverse party cannot recover on the attachment bond. The element of malice is unnecessary. Fallon. (Note : General liability attaches as long as the court shall finally adjudge that the attaching party was entitled thereto. 4/29/55: XXX an attachment is wrongful if secured by a party who is not entitled thereto. intervention • Intervention is not available in execution. even if judgment was rendered against the attaching creditor but he proves he acted in good faith in procuring such preliminary attachment. L-7550. the 3rd party claimant cannot attack the denial via Rule 65. 164: However. If the plaintiff has no right to attachment because the facts stated in his affidavit. (General Rule) Where there is no issue malice – compensatory damages (actual loss) can be claimed.

D timely appeals to CA but before appeal is perfected is granted immediate execution. The Supreme Court said that sec. P got an attachment. 10/21/34 Q : What about property under probate administration? A : Sec 7 Rule 57. may apply for the discharge of an attachment. Nava v. by judicial process. or the party whose property has been attached. The grounds in Rule 57. only a defendant. Rule. Property legally attached is property in custodia legis and cannot be interfered with without the permission of the proper court but this is confined to cases where the property belongs to the defendant or one in which the defendant has proprietary interest. supposing he will ever avail himself thereof will become a debtor instead of a creditor. Q : You take a bus going to Baguio.) Q : You were sued for libel by Penthouse Magazine. A : In City of Manila v. Q : What is the rational for not allowing attachment where the claim is unliquidated? A :The amount of the bond cannot be ascertained because the amount of the claim is undetermined. (Verify this. 12. 437. it is possible that the motion will be denied. 12). the court said of sec. 1 must be strictly construed (Balbastro). In your suit against the bus company for breach of contract. It is discharged upon D’s filing a counter bond. Note that the said rule requires that the action be for recovery of a specified amount of money or damages. An overdraft account is not a credit in favor of the judgment debtor. Bautista’s lecture notes. L-3905. 17 refers to judgment makes no distinction whether it's final or pending appeal. Can you get an attachment? Do you have a ground for that? A : No. This execution levied but returned unsatisfied. D and the surety object. Q . (Rule 57 sec. IAC. You were able to hang on to some branch of a protruding tree and you survive. But take note another remedy (according to Prof. 10/31/51. and not a stranger. Note that the provision applies only to natural persons. 1a) Take note however that absent any allegation of a specified amount of damages being claimed. Q : Can an overdraft account of the defendant be attached? A : No.A : (Note : Bautista cut de Leon’s answer of no and jumped to another question ) Yes. P would like to levy on the counter bond. Sec. so it will apply. Traders Royal Bank IAC. Q: When is a separate action allowed? A: No answer. Sec. The plaintiff cannot attach property which he is claiming to be his or which is the subject of the litigation. yes. Food for thought: Differentiate between replevin and preliminary attachment. provided that the defendant is about to depart from the Philippines with intent to defraud his creditors (Rule 57. San Jose. to borrow funds with which to pay his judgment creditor. et al v. Can A attach this land? A : No. because the latter. Judgment for P. To attach such overdraft account would be tantamount to compelling a person. It falls off the ravine because of a tremor. You sued for damages. 69 Phil. this is the “proper remedy”) is to file a claim against the estate. Under this provision. if the application for a counter bond is made by the party whose property has been attached on the person appearing in his behalf. In Tiacqui. . can you file a motion for preliminary attachment? A : YES. L-66326. Jugo. Q : A sues B to recover land which according to A he was defrauded by B to sell.

He cannot. Q. 1. If attachment creditor is the Republic of the Philippines or. Q. or does he have to attach first personal before proceeding to attach real? Is there an order prescribed by the rules that he must attach first personal and exhaust it and only if it is insufficient. (Student) Can sheriff execute on properties of local governments? Sir : No. Sec 7 (a). Note: In case of personal property capable of manual delivery. real and personal. (3) PRELIMINARY INJUNCTION ( Note : Granted at any stage of the action prior to final judgment) . How about the form of writ of execution? A. Although they can make a constructive levy because hakutan can be very violent. Q. Where will sheriff bring property kung hahakutin niya? Bakit hindi niya bigay sa plaintiff. Expense easily outsteps value of property unless they are gold bars. state property is exempt from execution. Sec. do you have notify owner? Is it required? If real property? A : No.Q : Apart from giving notice. In no way can he sell property which is attached? A. court may order sale) Q. But he can still hold on to the property even if he is not given a bond? (Note: When bond is not needed) A. Q. Can the attachment debtor direct sheriff as to what properties to attach first? Can he attach real property if there are available personal. 2. In administrative code just like salaries of government officials. Food for thought: Differentiate between preliminary attachment and execution. Could be occupant. Neither is there any requirement in the rules to attach personal property first. the attachment debtor cannot direct the sheriff as to what properties to attach first. This entails expense. Yes. can he then proceed to attach real? A: NO. I don’t think it is worth it. the writ of attachment is implemented by taking physical custody of the property called LEVY and Carry. execution debtor can direct which property will be executed. That is the practical thing about attachment because of the warehousing expense which will be at the expense of the creditor to begin although subject to reimbursement. He can. Q. 8 (d) specifically states that real property will be levied upon only if sufficient personal property cannot be found. What does the sheriff do with personal property he attached? Sir : He has to take care of it so he will put it in bodega. a safe place and he has to have it guarded. This is in contrast to execution where Rule 39. anyway may bond naman? A. If he wants to take the risk. (Note : Perishable – on motion. Sec. Q: How about in the form of writ of attachment? What does form say (Form No. Sir: In execution. 16)? A. 8 Rule 39. Unless they are gold bars.

Q. mag-uunahan sila to change the status quo and then magdedemanda na agad yong isa. A says: When I sued. That is not the status quo defined. A group of stockholders is disputing the election of directors of a corp on the ground that the meeting was not properly called in accordance with the by-laws. Kung hindi. and thereafter brings an action to contest the election of the first board and seeks injunction to prevent the first board from sitting and acting as the board. And this group called its own meeting and elected its own set of directors. A claims different boundary and builds fence in new boundary. The parties will be free to take the law in their own hands. A files suit against B and enjoins B from interfering or breaking down the fence. An injunction may not be granted ex parte. The status quo before the dispute is the original boundary to be maintained. as it existed at the interruption. If it’s a multi-branch. Otherwise. bond insufficient 3. tapos na ang fence. Alfonso). This would result in grab law – the parties taking the law in their own hands. Will the damage suffered by the plaintiff if injunction is not given be as much or less than the injury to be suffered by the defendant if injunction is given? (Note: Balance of comparative inconvenience – test of irreparable damage) Q. Injunction can or cannot be granted by considering the situation of the parties. • Ways of Dissolving an Injunction 1. the parties would be racing against time and will try to change the situation before the suit is filed. Why do we want to maintain the STATUS QUO ANTE LITEM or the STATUS QUO ANTE of the parties? If we do not maintain the status quo and parties are free to change status quo ante. Controversy over that fence ensues. the litigation might become moot or the judgment rendered therein may become ineffectual. the judgment may be rendered academic. there is a hearing. comparative or relative damage • The defendant will suffer more damage if the injunction is issued . However. The status quo is the status before the fence is put up. • The court may order a bond to be posted upon its discretion. For example. none of the boards should sit. Only the court issues a TRO. without either party being able to alter the situation during the pendency of the litigation and preempt the judgment of the court. The status quo is the last. If the court finds that the TRO should be extended. a TRO can be granted if it is urgent. That is the status quo. no ground 2. Therefore. actual. What is meant by the “comparative or relative convenience in the law of injunction? A. The Court must be given the opportunity to decide the controversy between the parties at the point it arose. Within 72 hours. a fence is put up in a certain place. the executive judge issues. uncontested status prior to the controversy which gave rise to litigation (Rodolfo v. It is important to preserve the status quo since otherwise.The rationale for preliminary injunction is to preserve the status quo. Q: A and B own adjoining lots. the court may grant an additional 17 days. A: That is not the status quo before the dispute. peaceable. Can injunction be properly issued? What is the status quo to be preserved by a preliminary injunction in such a case? A: The status quo ante is the situation before the election of the first board.

Note however that Art. Injunction can be preventive or mandatory. You cannot issue injunction against the whole world. 20 days. (4) RECEIVERSHIP The function of a receiver is to preserve the property. “Will this not cause a confusion as to which court has authority . but it turned out that she had already entered into an earlier contract with the Manila Hotel. 6. According to Prof. Q: Some actions cannot be enjoined. paragraph 2 of the Civil Code provides only for cases for “forcible entry. e. 539. Check this please! On what grounds may writ of preliminary injunction be dissolved? A. Rule 70. Sec. Rule 59. A party may not be appointed as a receiver since the receiver must be impartial. Bautista asks. How about the TRO issued by the CA? A: A TRO issued by the Court of Appeals or a member thereof (again. Prof. No. Is that TRO good for 20 days only? A. Bautista’s lecture notes. Injunction operates in personam. 5) Q. What is the lifetime of a temporary restraining order? A. unfair labor practice. Under Sec 1 (b). 1. You cannot compel her to sing. In case bond is required. Mortgage foreclosure of government financial institutions with colatilla: if you have not paid so much. not individually) shall be effective until further orders. in unlawful detainer cases. an inferior court has no jurisdiction to issue a writ of preliminary mandatory injunction. Can a court issue preliminary injunction enjoining all persons from entering certain premises? A. Parties in Manila Hotel bring injunction to prevent her from singing. strikes. an anomalous situation) is effective for 60 days from service on the party or person sought to be enjoined. the bond is not sufficient. Sec. but you can prevent her from singing. Sec. Acts already consummated. Sec.Q. Rule 58. Property is put under custodia legis when it is under attachment or it is under the administration of the court. Labor disputes. 2. To enjoin party litigant. Can an MTC issue a writ of preliminary mandatory injunction in unlawful detainer case? A. property in custodia legis can be put under receivership. The receiver has no power to operate the business. Is the injunction proper? A: Yes. Rule 59 enumerates the powers of a receiver. (Rule 58. No sufficient cause for application. Criminal prosecution. TRO can be issued by the Supreme Court.g.” Unlawful detainer is different from forcible entry. Collection of taxes by Revenue Code provision 3. 20 percent 4. You cannot enjoin strikes. Q: What are the injunction-proof actions? 1. What are these actions? Suppose Britney Spears was contracted to sing at the Araneta. 15 provides that the MTC can issue a writ of preliminary mandatory injunction. 2. 5. No. 5 provides that a restraining order issued by the Supreme Court or any member thereof (Ma’am Avena finds this anomalous since the Supreme Court decides either en banc or in divisions.

1 (c). Upon allegation and showing that the defendant is in imminent danger of insolvency. Action to recover one million peso indebtedness. 3 Bonds 1. Receiver’s Bond (Sec. In this case. 3) 3. Rule 39 – this operates like an injunction and attachment combined Who may be appointed receiver? A. 1 (c). Yes.over the property – the court which attaches for example and the court which orders the receivership. 43. Problem: A bank files an action to recover an unsecured loan from a borrower who operates a lumber yard. However.” Q. Because the function of the receiver is the representative or arm of the court so he has to be impartial. Sec.000. in the case of judicial mortgage foreclosure under Rule 59. it is not the mill but the indebtedness which is the subject of the litigation. will application for receivership prosper? A: NO. Receiver – to assure that he will do his job. No. Parties to the litigation unless parties agree. Defendant debtor is a logging company and operates a lumber mill. Rule 59 2. the subject matter of the action is not the lumber yard but the loan. What bond and who has to put up the bond? A. Applicant’s Bond 2. 1. Sec. there are 2 exceptions to the general rule that only property which is the subject matter of the litigation may be put under receivership: 1. Sec. Can property under custodia legis be put to receivership? A. instances where receivers may be appointed for property not subject of the litigation. The plaintiff bank asks the court to issue a writ of receivership. Sec.00 which was incurred to maintain operation in the premises alleging insolvency of owner. The bank alleges that the lumber yard is on the verge of insolvency. Counterbond Q: Action to recover P5. Receivership can only be issued for property which is the subject of the litigation. Sir: A receiver is usually a last ditch remedy. 41. The property under receivership must be the subject matter of the action. But there are exceptions. See Rule 39. can the plaintiff properly sue a receivership over the lumber mill of the defendant? A. i. Person petitioning for receivership General Rule: No Exception: if ex parte petition 2. Rule. equivalent to sequestration of the PCGG. Here. Answer: This is not proper. Sir: Receivership is rather drastic. (5) REPLEVIN (To recover possession) .e.

the sheriff takes the personal property and keeps it for 5 days. Defendant did not ask for it nor object to the bond. Q. Sheriff gives it to the plaintiff. Problem: Can plaintiff use the thing? Answer: No answer. to return. if the adverse party does not avail of any of the remedies available to him. Can the plaintiff appeal for support pendente lite in the appellate court. Paano kung nabangga? Can he really use it? How much is the bond – double the value? What is the bond for? A. for damages. How can defendant obtain redelivery of property pendente lite? If he objects. How about the applicant? A. what will you do? The sheriff shall take possession of the motorcycle and retain it in his custody. Replevin bond answers for the return of the property and the loss of the value of the property since most personal property (except wine and jewelry) depreciate. 1972) . At what stage of the litigation will a writ of replevin be issued? A. there must be an allegation that the property is not under custodia legis in order to avoid interference. Assuming plaintiff knows how to ride the motorcycle. (Note that in attachment. Sheriff takes the motorcycle and 5 days pass. (6) SUPPORT PENDENTE LITE Support pendente lite is allowed only at a proper action (i.Replevin In replevin. Replevin is allowed at any time before the answer is filed. how do you go about it? Assume property is a Trendy motorcycle. legal separation. After the 5 th day. Answer: Yes. Q. he cannot unless the bond is found to be insufficient. The defendant cannot object at the sufficiency of the bond or file a counterbond at the same time. the sheriff must deliver the property to the applicant. In replevin. When sheriff has in his hands a writ of replevin. Yes. 2 things: first.e. A. Defendant gives bond double the value of the property. see Ramos v. Within 5 days after the taking of the property. Di parang sa kanya na. replevin is allowed only if there is recovery of possession of personal property. the sheriff should deliver the property to the plaintiff unless the defendant objects to the sufficiency of the bond or files a counterbond. Also. Q. and second. CA (June 30. annulment). can he ride it? Can he use it? A. what does he do with it? Assume you are the sheriff entrusted with a writ of replevin. At the commencement of the action and anytime before answer.action for support. Gives bond double the value of the property. Q. the sheriff keeps property under guard. Q. Problem: Suppose support pendente lite is denied by the trial court.) Q.

Q. Several crewmembers perished. Q. The work product rule was enunciated in the case of Hickman v. By being able to obtain more knowledge as to the issues and facts. this would ideally save on time. Taylor. Q. Fortenbough. Yet he does not comply with the order When can an application for alimony pendente lite be filed? At the commencement of the action and at anytime afterwards before judgment in the trial court. The owner of the barge hired a lawyer. A. support pendete lite. When the heirs of the crew members filed an action against the barge owners. The other instance is Rule 39. a money judgment. according to Prof. etc. He interviewed the surviving crew members. 40. In that case. The goals of discovery are: 1. which provides that a judgment obligor required to pay in fixed monthly installments may be punished for indirect contempt if he fails to pay any such installment when due without good excuse. there was a barge which sank. not through contempt. Fortenbough refused. impressions of the lawyer. He has means to do so and 2. Originally. A. their lawyer asked Fortenbough to produce all his notes and interviews. However. discovery does not always make the case shorter: contrary to expectations that it will expedite the litigation. DISCOVERY The purpose of discovery is to obtain the fullest knowledge of the issues and fact. 2. may be enforced by contempt. Bautista. memoranda. XI. How about pending appeal? Alimony pendente lite can no longer be issued pending appeal because plaintiff has already been given a more adequate remedy or no right to remedy at all. last paragraph. Can he be held in contempt of court? Yes. An order for payment of a alimony pendente lite is immediately executory. 3. The Supreme Court said that the notes. A. Sec. However. What is that? Order execution. discovery was intended as a device for expediting the case. Q. to find out how strong the case is to anticipate the opponent’s actions to get evidence to support one’s case The following are not subject to discovery: (1) privileged matters • Work Product Rule Related to privileged matters is the work-product rule. in preparing . This is one of the two instances wherein money judgment is enforcible by contempt. Although there is an alternative means to enforce the order.The general rule is that money judgments can only be enforced through execution. Suppose defendant was ordered to pay alimony pendente lite but refuses to pay and therefore disobeys the order. it has protracted it because this is an additional battleground/source of skirmishes. A. provided: 1.

Leave of court is necessary when no answer has been filed. then anything under the sun can be asked. If there is no answer yet.for a case are not discoverable. • Examples of privileged matters: i. right to privacy – the lawyer cannot get the entire sexual history of the other party ii. 2. Classification of Depositions 1. . trade secrets – may be allowed if its an in camera (in the chambers) disclosure (2) impeaching evidence • This is a gray area as commentators are not in agreement. Sec 6. The scope must be limited. One of the purposes of Secs. Rule 26 (Effect of Failure to File and Serve Request for Admission) are new provisions. The purpose of these 2 new provisions is to provide sanctions for failure of counsel to resort to these remedies since the time of the court is valuable. According to Manner of Taking a) oral b) written  See Rule 134 for perpetuation of testimony. DEPOSITIONS Depositions are taken to preserve testimony – to avoid flip-flopping. Direct Cross Re-direct Re-cross Under Rules 23 and 24. If such are discoverable. Rule 25 (Effect of Failure to Serve Written Interrogatories) and Sec. the written interrogatories are the following: direct. According to the Stage in Litigation (when taken) a) before action or pending appeal or in perpetuam rei – Rule 24 b) pending action or de bene esse – Rule 23 2. Such are not discoverable not because of the attorney-client privilege but because of the so-called work product rule. There can be more than 1 set. there are no issues. Counsel should try to take the deposition right away when the impressions are still fresh. then the legal profession would collapse. If there are no issues. Kinds of Written Interrogatories 1. The argument is that if the intention is shown in advance – to discover impeaching evidence --then it’s useless. 3. cross. 5. 4. redirect. and re-cross. Therefore lawyers resort to pro forma interrogatories so that they may not be precluded from calling the adverse party as a witness. 16 and 18 of Rule 23 is to confine and limit the scope of the examination. Lawyers would not be diligent since their very own efforts could be used against them.

the deposition may be used for impeachment purposes. Any party make take depositions. . Since the deponent is not your witness. But this is balanced by the oath taken and the cross. an order refusing to allow the disobedient party to support/oppose designated claims/ defenses 3. the deposition of a non-party may be used for both impeachment or evidentiary purposes if it falls under any of the 5 circumstances. the party is not bound to introduce the deposition as evidence. 2. Depositions are really hearsay in the cases enumerated in Sec. Rule 23. Q: Supposes deponent refuses to comply with the order? A: The court may make such orders as are just. The person before whom the deposition is taken cannot rule on the objections. In addition. Q.those taken to perpetuate evidence for purposes of an anticipated action (Rule 24) Q. the deposition may be used for any purpose. 2. or rendering a judgment by default against the disobedient party 4. The parties may take the deposition of any person. If the deposition is that of a party. Q: Suppose a deponent refuses to answer a question propounded upon oral examination? A: The proponent may EITHER STOP the examination or COMPLETE IT ON OTHER MATTERS and then take the necessary steps to secure an order from the court COMPELLING DEPONENT TO ANSWER. Any purpose means to use as substantive evidence – to prove the truth. the deposition of Atong Ang can show that his cook makes P2000. an order that matters regarding which the questions were asked shall be taken to be established. It makes a difference if the deposition is that of party’s or a non-party. or staying further proceedings until the order is obeyed or dismissing the action or proceeding or any part thereof. So that the court can give limiting orders to protect the deponent as in Sections 16 and 18 of Rule 23. there are no redirect or re-cross interrogatories. The difference is as to use. As to when they may be taken: De benne esse – those taken for the purpose of a pending action (Rule 23) In perpetuam rei memoriam. 4(c). an order striking out pleadings/parts thereof. The taking of a deposition does not mean that the deponent is your witness. the ff: 1. What are the kinds of depositions? A. under Sec. For example. it may be used to prove a prior inconsistent statement. these objections must be made right away. Why is there a need to ask leave of court to take depositions before an answer is filed? A. there is only 1 set of written interrogatories. Depositions are exceptions to the hearsay rule. an order directing the arrest of the party. For example. If a party uses a deposition. As to form: Oral and written.Under Rule 25. However. However. 1. the party makes the deponent a witness except in cases of impeachment. and among others. If the deposition is that of a non-party. Rule 23. 4(c).

reputation evidence is not allowed. or who is financially interested in the action. what is the point of raising objections during the deposition-taking? A. No. INTERROGATORIES TO PARTIES . a commissioner can rule upon the admissibility of evidence unless otherwise provided in the order of reference. Q. prior inconsistent statements. When the deponent is in prison. Rule 129: may be used in other proceedings. Because when the deponent is not your witness. Why do you want to take a deposition before action or pending appeal? A. Q. Rule 24 Section 29. Q. No. Do you make the deponent your witness by taking his deposition? A. He can only take note of the objections. Who can be a deposition officer within the Philippines? A. What is the 100 km limit for? A. If the officer cannot rule on the admissibility of evidence. Q. Notary public. (Rule 32. If the deponent is your witness. (Sec 7 Rule 23). Accused has right to coercive process. to prove the truth like reported testimony which is an exception to the hearsay rule. Does the deposition officer have the power to rule on the admissibility of evidence? A. the four kinds of impeaching evidence (contradictory evidence. Q. Q. To pin him down and impeach him with prior inconsistent statements. Rule 26: may not be used for other purposes but only for the pending action. One. Who are disqualified? A. It modifies the use of the deposition but not the right to take a deposition. Q. Can you take the deposition of a person who resides within 100 km from the place of trial? A. What is the difference between Rule 26 and Rule 129 on admissions? A. When is the only instance where you always need leave of court before taking depositions? A. How many sets of interrogatories may be served a party under Rule 25? A. or who is a relative within the same degree or employee of the counsel. What is the significance of this? Why is it important to determine whether he is your witness or not? A. To perpetuate his testimony in case he might die.Q. Yes. any person authorized to administer oaths. (In contrast. No. Sec. As substantive evidence. There are objections which will be deemed waived if not raised during the taking of the deposition such as grounds which might have been avoided or removed if presented at that time. Judge. Relatives within the 6th degree of consanguinity or affinity or employee or counsel of any of the parties. Does the 100 km limit apply to criminal cases? A. reputation evidence and prior conviction) may be used against him. Q. Q. 3)) Q. Q. Q.

RULE 25 Addressed only to the adverse party. for refusal to Judgment by default or dismissal of the action or proceeding or part thereof or strike out all or any part of the pleading. Served to the adverse party himself. RULE 23 As to whom addressed. suspension of proceeding 6. May be oral or written and sent to an officer.Q: Differentiate between Rule 23 and Rule 25. order to answer 2. Procedure Need for cross-interrogatories May be addressed to a party or non-party. On whom binding. Served within 10 days from receipt of notice and written interrogatories. Sec. Contempt. 6) Q: Suppose a party to whom R 25 Interrogatories (to Parties) are served. party prohibited from introducing contradictory evidence 5. Time to answer. Payment of expenses to the other party or contempt. declared non-suited or in default 7. unless extended or reduced by the court. subject of discovery deemed admitted/established 4. striking of pleading 8. No fixed time. (Section 3 Rule 29) Only on the party served. Pay expenses of other party. arrest 9. There are sanctions common to both devices. refuses to answer the set of interrogatories? A: Consequences of refusal are: 1. Within 15 days after service of interrogatories. (Rule 25. Sanctions answer. contempt 3. cost . answers are Any party who was present or represented at the taking of the deposition or who had due notice thereof or who had the opportunity to serve crossinterrogatories. No cross-interrogatories. Q: What is the effect of failure to serve written interrogatories? A: The party not served may not be compelled by the adverse party to give testimony in open court or to give a deposition pending appeal. after there has been a refusal of the order to answer.

or any Justice of SC or CA in any case or investigation pending within the Phil. measuring. irrelevant. or clerk or body authorized by law. Unreasonable and oppressive. of any designated documents. documents or other things under his control/possession. Only to a party Before and/or during trial Issued by the court where the action is pending When issued Must good cause be shown? Grounds quashal for Issued upon a motion YES. is required to . or the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. Issued upon request NO. OR order a party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting. surveying. No good cause shown Q: Who issues subpoena? A: It shall be issued by the COURT or JUDGE before whom the witness is required to attend or by the JUDGE IF THE RTC of the province or ANY JUDGE OF MUNICIPALITY/city where the deposition is to be taken or the investigation is to be conducted. If a prisoner not confined in a municipal jail. or photographing the property or any designated relevant object or operation thereon. papers. ORDER FOR PRODUCTION/INSPECTION Order to produce or permit the inspection & copying or photographing.PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS Q: What is the difference between subpoena duces tecum and an order for production or inspection of document? SUBPOENA DUCES TECUM Nature Process requiring a person to bring with him any books. by or on behalf of the moving party. or court where the deposition is to be taken. or by any JUSTICE OF SC OR CA in any case pending within the RP. To whom directed When it may be asked Issued whom by To any person Only during trial Issued by a court before whom the witness is required to attend. books etc.

Q: Thee is a special rule for issuance of a SDT for deposition. when a party wishes to take the deposition of a witness upon oral exam/written interrogatory. Can you ask for a psychiatric examination of a witness? A.attend before an inferior court. If a party refuses to be subjected to discovery. 4) Q: Effects where a party refuses to submit to a physical/mental exam? 1. Q: What are the consequences of his asking for a copy? A: He waives any privilege he may have regarding the report of examination made at ANY OTHER TIME of the same mental or physical condition and consequently. it shall DESIGNATE OR DESCRIBE REASONABLY the papers or articles demanded. (Rule 28. is there something special on subpoena duces tecum? A: For a SDT to be enforced. 15 & 25 of R 24. suspension of proceedings 5. party prohibited from introducing contradictory evidence 4. only a party. declared non-suited or in default 6. the first step to take is to serve the NOTICE provided in S. and 2. subject of discovery deemed admitted/established 3. PHYSICAL AND MENTAL EXAMINATIONS OF PERSONS Q. The physician cannot testify only in a CIVIL case. does he get a copy of the report? Is he entitled to a copy? A: Yes. Yes. contempt 2. a subpoena should be issued. The clerk. can you put him in jail? A. Q: How about the person who is examined. or by the judge of the municipality/city where the deposition is to be taken after receiving proof of service of notice. or by SC or CA Justice. To secure the attendance before the officer designated to take the deposition. Q: As to form and manner of issuance. No. 5 of R 23. because the issuance of the order involves the exercise of judicial discretion as to the requirements regarding DESCRIPTION and RELEVANCY of the document/objects required to be produced. the subpoena may be issued by the RTC judge of the province where the inferior court is sitting. may NOT issue the SDT without an express order of the court. What is it? A: Under S. does that not violate the rule on privileged communication? A: NO because the privilege covers only a situation where the information was acquired by a physician in attending to a patient in a professional capacity. Sec. such papers/articles must prima facie appear relevant to the issue. which info was necessary to enable him to act in that capacity and which would blacken the character of the patient. it must comply with the ff requirements: 1. Q: If the physician is going to report the findings. except for refusal to submit to a physical or mental examination. however. striking of pleadings . the party causing the examination to be made shall deliver to him a copy of the detailed written report of the examining physician setting our his findings and conclusions. Q. If requested by the person examined. This subpoena may be issued by the clerk of court of the RTC for the province. he may be compelled to produce such report.

. the plaintiff may properly be declared non-suited. limit the number of witnesses 3. To arrive at amicable settlement 1. • • When conducted: after the last pleading has been served and filed Exception: where the period to file the last pleading has lapsed.Trial court has discretion to declare a party non-suited and. obtain admissions 5. PRE-TRIAL Q: What is the purpose of pre-trial? A: 1. pre-trial is not mandatory if the issue is purely legal.Where nobody appeared at the PT except the counsel for the plaintiff but said counsel had no special authority to represent the plaintiff. If the party is a corporation. 4: Appearance of Parties .7. The plaintiff may be so declared non-suited and the case dismissed without motion by the defendant. file certiorari (R. Sarmiento vs. amend pleadings 4. The purpose is to compel the parties to appear personally before the court to reach. . 5: Effect of failure to appear .Defendant: shall be cause to allow plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof. if possible. 23 Rule 138. Factual as well as legal issues. • • • • . a compromise.There is a necessity for the personal appearance of the parties at the PT Conference. Sir. Sec. The notice of PT is served on counsel or on the party who has no counsel Sec. It is the duty of the plaintiff to move ex parte that the case be set for PT. such authority must be made with an appropriate resolution of its BOD. cost XII. Defendant: 2. Juan: PT may be properly scheduled even if plaintiff had not yet filed his answer to the defendant’s compulsory counterclaim since no answer is required to be filed thereto. as it is a final order. advisability of referring the matter to commissioners and possibility of compromise Q: Does it cover only factual issues? A: No.65) as such order of default is interlocutory Appeal from Order of dismissal. . such dismissal has the effect of an adjudication on the merits.Special authority for an attorney to compromise is required under Sec. Plaintiff: file MR (without need for affidavits of merit) on the grounds of FAME If denied. unless otherwise provided.Plaintiff: cause for dismissal of action WITH prejudice unless otherwise ordered by the Court . to simplify issues 2. .REMEDY: 1.

6: Filing of PT Brief is mandatory. Q: Can a lawyer ask for postponement on the ground that he is suffering from LBM? A: Yes. Q: Must it be in the form of a medical certificate? A: Yes AND accompanied by an affidavit. ABSENCE OF EVIDENCE. TRIAL SUSPENSION OF ACTION Q: What are the grounds for postponing a trial upon motion of a party? A: The only grounds are: 1. Q: What about impending death? A: On a case to case basis.• • When a PT has already been held. Q: Can The court require the plaintiff to present his witnesses first. on direct testimony before anyone of them is cross-examined? For instance. Judge says. Sec. Sec. he has to go to the bathroom. bring all of them here and let’s listen to their direct testimony and after the direct testimony of all of them. Q: Is pre-trial mandatory? A: Yes for both civil cases (Rule 18. Sec. 3 provides that notice of pre-trial shall be served on counsel or on the party who has no counsel. Q: can reverse trial be done in civil case ? A: YES. The failure to file will have the same effect as failure to appear at PT. the court says. The counsel served with such notice is charged with the duty of notifying the party represented by him. Q: Can you still resort to discovery after pre-trial? A: YES. and 2. the materiality of which and the diligence used to obtain it. Is that proper? A: YES because it is still within the rule that the P present his evidence first in the form of testimony… . 2) and criminal cases (under Speedy Trial Act). ILLNESS OF PARTY OR COUNSEL if it appears on affidavit that the presence of such party /counsel in the trial is indispensable and that the character of his illness is such as to make his non-attendance excusable. Q: Is it possible to serve the notice to the party thru counsel? A: Yes. I will allow the defendant to cross examine them one by one. being shown by affidavit. Okay. 6 (e)) XIII. but only if the party has counsel. (Rule 19. Rule 18. if every 5 mins. the fact that an amended complaint was later filed does not necessitate another PT Sec. Q: Does he have to submit a medical certificate? A: NO. how may witnesses are going to be presented? Lima po.

the judge SHALL x x x meaning judge has no discretion. commence with the presentation of his evidence 2. the D can still present his evidence. . Q: In a vehicular accident case. BUT this might collide with the prescription found in the Consti v. submit case for decision on the basis of P’s evidence alone and WAIVE the presentation of his evidence. yes. can the parties stipulate that the road where the accident occurred is FIVE METERS WIDE at least for purposes of litigation? A: Theoretically. the movant D loses right to present his evidence. Q: What are the functions of the commissioners? A: Rule 32(8). DEMURRER TO EVIDENCE Q: What is the ground for demurrer to evidence? A: Upon the facts and the law. 2) Q: Can any matters/issues be referred to Commissioners? A: YES.Q: Can a judge in a civil case direct that P or a party present all the direct testimony of all his witnesses in the form of affidavit subject to cross examination? A: YES in the case of SUMMARY PROCEEDINGS. Q: How many commissioners may be appointed? A: 2. 3. (By affidavits & counter-affidavits) NO in non-summary proceedings. Q: When are commissioners appointed by the trial court? A: By motion of BOTH PARTIES OR by the COURT MOTU PROPRIO (R 33. Q: What is the risk in D filing a demurrer? A: If the motion is granted and there is an appeal of the judgment and it is reversed. Sec. File demurrer to evidence.S1) Q: If the demurrer is denied. Q: Can commissioners also write opinions? A: Yes BUT it is the judge who finally determines the ruling. TRIAL BY COMMISSIONER Q: If the right to trial with the assistance of assessors is demanded. s. rendering advisory opinion because if this can be done. What are the courses of action available to defendant after the P has concluded the presentation of his evidence? A: His options are: 1. is it a matter of right? A: Yes under R 32 (1). Q: Can a deaf-mute testify? A: YES Rule 132 (5) you can ask LEADING QUESTIONS if he is a deaf mute. The value of the opinion is merely to advise the judge on questions of fact. See Rule 32. Sir: this is practically a dead provision but it is the kind of provisions which they resurrect in the bar exams. 9. They shall sit with the judge during the hearing of an action & advise him in the determination of the questions of facts involved. the P has shown no right to relief (R 35. you can practically take a hypothetical case and submit it for resolution by the court.

It violates rules on appeals. what will prevail? A.XIV. Q: Who is entitled to recover costs ? A: Prevailing party. Consti) Q. Q: What is a COGNOVIT NOTE? A: It is a provision in a promissory note usually appointing the holder in case of default of the maker to pay the note on maturity. stating clearly and distinctly the facts and the law on which it is based. SIGNED by him and filed with the clerk of court. ordering the recording of an act FORMERLY DONE but which does not appear on the record. Q: Suppose there is no promulgation as to costs. Basic requirements of a valid judgment? A. personally and directly prepared by the judge. 3) state findings of fact and law. These provisions authorize getting judgment on the note. on compulsory counterclaim. 1) in writing. Q. for uniformity of procedure and due to constitutional requirements. 2) personally and directly prepared by judge. Note that the requirements as to the contents/recitals of a judgment on a criminal case is a little different. sec. What is a sin perjuicio judgment? . JUDGMENTS Q: What is a judgment? A: It is in WRITING. (Art. It is NOT APPEALABLE because parties have consented . Q: Are these cognovit notes valid? A: NO. Yes. Q: What is a judgment by COMPROMISE? A: this is a judgment which is IMMEDIATELY EXECUTORY and final whereby the parties agree on the issued litigated upon. The holder is appointed as attorney in fact to go to court and confess judgment for the maker. Suppose there is a conflict between the dispositive portion and the body of the decision. 14. Does this apply to judgments of inferior courts? A. who will pay the costs? A: Each will bear his own cost. TREBLE COSTS if action is frivolous (S 3) Q. Dispositive portion. VIII. It is prohibited because the maker is DENIED HIS DAY IN COURT therefore due process is not observed. The recording of such judgment it previously rendered retroacts to the fate when it is was previously rendered. 1308 of CC. to confess judgment on the maker. and Art. 4) signed by judge Q. Q: What is an example of a NUNC PRO TUNC JUDGMENT? (Judgment rendered by court NOW FOR THEN) A: One rendered by a court. No decision shall be rendered by any court without expressing clearly and distinctly the facts and the law on which it is based.

Sanz. (not allowed anymore) 2. Judgment issued but before it could be reduced into final form. the plaintiff died. but no only the second kind is allowed: 1. Manila Oil Refining. as attorney in fact to go to court and confess judgment for the maker. . it will be barred) 3. 1308 of the New Civil Code NUNC PRO TUNC JUDGMENT o Rendered by a court. 45 Phil 119) Q. ordering the recording of an act it had formerly done but which does not appear on the record o The recording of such judgment it previously rendered retroacts to the date when it was mutually rendered. it may be valid if there is basis therefor. o Prohibited because the maker is denied a day in court o Due process is not observed because it violates the following: 1. which may be contained in the decision or final resolution itself. Are judgments nunc pro tunc valid in our jurisdiction? A. However. Rule on compulsory counterclaim (if the maker has a CCC. (Art. Yes. o Judgment rendered by the court now for then o There originally was two classes of nunc pro tunc judgments. What about an RTC judgment on an appeal from an MTC case? A.A. who denies the rest thereof. When a judgment has already been issued but through the judge’s fault or through no fault of the parties. 14. It may be deduced from the notes that if the case has already come to its end but the facts have not been made of record. Consti) Q. (PNB vs. Lichauco v. 43 Phil. A cognovit judgment is defined as a confession of judgment whereby a portion of the complaint is confessed by defendant. or adopted by reference from those set forth in the decision. Is it possible for the RTC to issue a minute resolution? A. then a judgment nunc pro tunc may be valid. 862) held that it is not valid. Yes. This is not a valid judgment because it violates due process requirements.  Q. Every decision on final resolution of a court in appealed cases shall clearly and distinctly state the findings of fact and the conclusions of law on which it is based. sec. 40). 460). Rule on appeals 2. sec. Ex. rules on appeals and compulsory counterclaims. it was not made of record. order or resolution appealed from (BP 129. then they could issue a judgment antedated before the plaintiff died.  COGNOVIT NOTE o Provision in a promissory note usually appointing the holder. No. The attempt to enter an order nunc pro tunc there approving the loan was not allowed. in case of default of the maker to pay the note on maturity. Tan Pho (51 Phil. Judgment had really been issued but due to error/mistake was not made of record. What do you understand by a cognovit judgment? Is this a judgment by confession? A. VIII. Art. A judgment without stating any of the facts in support of the court’s conclusion and reserving the making of such statements of facts in a subsequent decision. Q. (Director of Lands v.

How about a judgment directing defendant to pay plaintiff the equivalent in Philippine currency of US$12. no pronouncement – each bears own costs Q. But there is an issue here. SIR: That refers to obligations incurred in the Philippines. Q: How do you distinguish an ADVISORY OPINION from a declaratory judgment? ADVISORY OPINION DECLARATORY JUDGMENT . Advisory Opinion Rendered at request of the executive or legislative dept a tax ordinance. pacto de retro sales Q. Rule 142. Declaratory relief  no actual controversy but only ripening seeds of controversy and the judgment has no coercive effect. When time for appeal has lapsed and no appeal was filed. 5) judgment in unlawful detainer  JUDGMENTS BY COMPROMISE Immediately executory and final. 1) judgment by compromise. each bears his own costs o Treble costs are imposed if the action is frivolous (Sec. Is that a valid judgment? A. SC – clerk or corresponding court. What are actions to consolidate ownership? A. p. Advisory opinion  facts are hypothetical and there is no actual controversy. 3)  Q. Notes: lower court – municipal judges. 8. E. How does declaratory relief action differ from an ordinary action? A. Philippine citizenship.000 at the rate of exchange prevailing at the time of payment.Q. 4) judgment for support. Is not the judgment thereby rendered indefinite or conditional? A. and moot Q. Declaratory judgment  there are ripening seeds of controversy  DECLARATORY JUDGMENTS Declaratory Judgment Proceeding determinative of the rights of the parties to the case Quieting effect Ripening seed of controversy Discretionary o Not available to test the validity of cases. sec. JUDGMENTS FOR COSTS o Prevailing party is entitled to recover costs o If there is no promulgations as to costs. 2) judgment for accounting. What is the difference between an advisory opinion and a declaratory judgment? A. The Rule of Obligations and Contracts says that payments of money must be in Philippine currency even if pegged in foreign currency. Yes. whereby the parties agree on the issues litigated upon. What judgments are immediately final and executory? A. Q. When does judgment become final? A. 194. Ordinary action  there is an actual controversy and the judgment therein has coercive effect. Who taxes costs? Judge or clerk? A. 2 Moran. 3) judgment for partition. Q.g.

v. Mun. decreed that the fees and charges collected be refunded. (Rule 64. Another way of distinguishing modes of review is whether it is with the same court or with another court. Or to declare Philippine citizenship? (to test citizenship) A. pacify Q. the SC held that it was proper for the court to order the municipal council to refund taxes in order to avoid multiplicity of suits. Because of reasons of public policy. Effect is quieting. Whether a person is a citizen or not is already defined by law. Council of Malabang) XV. REVIEW AND CORRECTION OF TRIAL COURT ERRORS MOTION FOR NEW TRIAL Q: There are various modes of obtaining a review of a judgement or order of the court. or construe the instrument? A. there is already a ripening seed of controversy not just an actual controversy. 2) In any case where the declaration or construction is not necessary and proper at the time under all circumstances. Before the judgment becomes final. Q. What are the modes by which one may obtain review of a judgment by the issuing court before it becomes final? A: Motion for Reconsideration (MR) or Motion for New Trial (MNT) . The validity of an ordinance “imposing certain fees on certain merchants dealing with certain goods” was tested or challenged a declaratory relief action by an association of merchants who were affected by the surcharge. it is well-settled that declaratory relief is not available to test the validity of a tax. Was it proper for the court to make an order for refund in an action for declaratory relief? A. sec. 1) Where a decision would not terminate the uncertainty or controversy which gave rise to the action. Q. the modes of review are generally limited to the issuing court itself. cannot be enjoined. For instance. an action for declaratory relief shall not be followed by any coercive decrees of the court. The court in that action declared the ordinance invalid and additionally.* * Rendered by the executive legislative department or in advisory opinion. everything is vague and hypothetical To guide action * Proceeding determinative of the rights of the parties to the case Coercive relief – may be in separate action Proper and often resorted an can be the subject of considerable state laws. The basis of the distinction is whether the order or judgement is already final. However. in that case. 5) Q. (Matalin Coconut Co. will or statue. What are some of the grounds on which the court may decline to declare the parties’ rights on contract. There are some well-settled rules regarding the availability or non-availability of declaratory relief. even though the statute granting the right of the government to collect taxes is invalid. Here. They need not convert the action into an ordinary action since the SC already declared the ordinance null and void. As a general rule. Because the collection of taxes. Why? What is the reason for that? A.

accident. Q: The time for filing an MNT is the time for appeal. excusable negligence. Q: Is an MR a MNT? A: Yes. No. Newly discovered evidence 3. or that the decision is against the law SIR: In common parlance. Q: What is your authority for that? A: Rule 37. in ordinary appeals. Q: Cannot the period for appealing be extended? How about the time for filing a notice of appeal? Can it be extended? A: Lacsamana v. The third ground for MNT refers to the grounds for MR. In an MNT the grounds are specified in Rule 37. Q: How many MNT may you file? Do we distinguish as to the court? As to the ground? Because you can file the MNT in different levels of courts. mistake. Sec. . 4 . IAC. Q: What are the other kinds of appeals? A: Appeals in special proceedings or multiple appeals.the Interim Rules provide that no second MR shall be allowed. it is possible that a second MNT shall be allowed.Q: Is there a difference between an MR and a MNT? A: Yes. In an MR. the grounds are limited to the same case where the court made errors in deciding the case. 1 Q: Is an MNT always a MR? A: No. except when the case is pending in the Supreme Court. Japson (142 SCRA 208). 1 (c) is popularly called Motion for Reconsideration Q: Is there a time within which MNT may be filed? A: Yes. The party who lost can file a second MNT. Q: What are the grounds for MNT? A: 1. Within the period for perfecting an appeal . But as to the first two grounds. Sec. no. Court allows extension. Can the time for filing an MNT be extended? A: Habaluyas v. Rule 37. insufficiency of evidence to justify the decision.when the ground was not existing nor available at the time of the filing of the first motion.. Sec. from notice. If the first motion resulted in the reversal of the original judgment.fraud.15 days or 30 days as the case may be. Award of excessive damages. FAME. 2. Q: How about in the Court of Appeals? Can you file a second MNT? A: Yes. Does it make any difference in what court? A: As to grounds .

Although a student was arguing that the clear wording ways that you have that extra day within which t appeal. 3. Q: Or if it goes to the SC? A: Yes. Rule 37. according to the Rule 41. So. MTC to RTC to CA ." Q: Just subtract. Pwede bang magamit iyon for some other purpose? The SC seems to insinuate that no .you cannot file a motion for Execution Pending Appeal anymore on that extra day. It did not say it can only be used for appeal. Q: Where is the rule which says that if you file your MR on the last day for appeal. Q: One student said that you can file a second MNT. regardless of whether it is an appeal from the decision of the RTC in an original case. you have the whole next day after you receive the denial within which to perfect an appeal? A: Rule 41. or a decision of RTC in an appellate case? A: There is a distinction: 1. 2nd paragraph. Sec. 4 you have the remaining time within which to appeal.no extension 2.Q: The Lacsamana case does not cover the filing of notice of appeal from the inferior court to the RTC. You agree? You can file 2nd MNT? A: Yes. Q: Within what time can you file 2nd MNT? A: Rule 37. sec. so if you have one more day appeal. Assume that the first MNT is filed on the 15th day from notice of the judgement. You subtract the time during which the MNT was pending. I don't know if it can be used for a 2nd MNT. Sec. Sec.the 15 days can be given an extension of another 15 days. you have that other day within which to file a 2nd MT. RTC to CA . Sec. 3. . And then. 4 . you have the whole of the following day that you received the order to appeal. Can you use that extra day to file a 2nd MT? SIR: According to Rule 37. But there is a query whether it can be used for the filing of a 2nd MNT. It cannot be extended if from the inferior court to the RTC. 1. Q: RTC to CA? A: No extension. within which to file a MNT minus the time that the 1 st was pending. does it? A: It is covered. It is just like the time for appealing. 3. The SC only said that it cannot be used for a Motion for Execution ending appeal. meaning when the ground is 1 (a) or 1 (b) of Sec. Q: Are you telling us that the period for filing a notice of appeal from the RTC to the CA cannot be extended."filed within the time herein provided excluding the time during which the 1st motion has been pending. You have still one more day according to Rule 41.

If it does not raise any argument. to just go ahead and appeal. Q: A complaint under RTC is dismissed on D’s motion on the ground that the court has no jurisdiction over the subject matter. that you might be shocked to find out that the decision had become final. If the MNT is placed under ©.trial de novo. such a MR has been ruled as pro forma. especially in very complicated cases are requested to file memoranda. Note: There are 3 broad grounds for a MB\NT under Rule 37 . SIR: It is a pro forma MR if: 1.what is the danger? A: You lose your right to appeal. If it repeats the same arguments which were raised. It does not contain a notice of hearing in accordance with the Rules. Is D correct? . Q: How many motions for NT may be filed in the trial court? A: No answer. making express reference to the testimonial or documentary evidence or to the provision of law alleged to be contrary to such findings or conclusions. it is commonly known in legal parlance as a MFR. If you repeat the same arguments that you made in your memorandum in your MR.But Rule 37. there are requirements for motion whether the ground is A. Sec. before judgment. in your memorandum before decision. So MFR is always a MNT. B or C and also effects when motion is granted under a. Sec. If you do that. you can file MNT. Q: What is the effect of the grant of a MNT? A: It depends on what ground the new trial is granted . If it is granted under (a) or (b) . 2. and (c). If you will notice . S. It is very dangerous. Q: When is a motion for new trial pro forma? A: when it fails to point out SPECIFICALLY the FINDINGS or CONCLUSION of the judgment which are contrary to law. say. It fails specifically to point out the findings and conclusions of the judgment as required by Rule 37. 2 par. 3. Q: Suppose the ground is (b)? A: Trial de novo and particular newly discovered evidence should be received. the parties.if it is granted under Sec 1 (a). The D said that the MFR is defective because it did not contain an affidavit of merit. b. (b). 1 (a to c). It raises grounds which were already considered by the court in its decision. 2. the introduction of new evidence will take place. you do not interrupt/ toll the period for appeal. Then he went up on certiorari questioning the denial. then that MR is pro forma. Decision becomes final and executory. It is not bad practice unless you really have something new to say. Q: If (a)? A: Evidence of record will stay and if necessary. Usually. or c/ this is one way of arguing that MFR is only under c. especially after you have filed a memorandum. 4 also says that the only day you have to appeal. The P moves in due time for MFR and the motion was denied. Which means. If the arguments in the MR are the same arguments which were raised in the memoranda and were already considered by the court. Q: You know what a pro-forma MR is? You know that if the 2 nd MR does not meet the requirements .

When is the first day to appeal.. is AM required? AL YES.A: NO. Q: Suppose after trial is concluded. D. D filed a MFR. and all interlocutory orders as are related to the appealed judgment or final order for the proper understanding of the issues involved. Is that pro-forma? A: Not necessarily. when is the last day to appeal? A: (five days pa rin di ba?) Q: When is entry of judgment material? A: In Petitions for Relief from Judgment (R 38) and in Execution for the motion. (2) Judgment or final order from which the appeal is taken. motions. Q: Judgment is rendered in favor of P and v. The material dates showing the timeliness of the appeal CONTENTS OF RECORD ON APPEAL: (1) Full names of all the parties to the proceedings. (3) In chronological order. On 1 Sept. A: 5 DAYS after 1 Sept (no case less 5 days) so on 6 Sept. Q: Is a MFR a condition precedent to filing of an appeal? A: No. there is an amended decision. (4) Data that will show that the appeal was perfected on time. Judgment or final order or part thereof appealed from. it involves allegation on the part of the P and defense on the part of D which is necessary in the case. On 14 July. This is based under letter © and affidavit of merit only is needed for letter a (?) Q: How about in b. petitions. Then D filed MFR reiterating what he had written in the memorandum. copies of such pleadings. GROUNDS FOR DISMISSAL OF APPEAL: . court requires party to submit memorandum and judgment was rendered in favor of P and v. Court to which the appeal is being taken. RULE 41 APPEAL FROM THE RTC WHEN TAKEN: If notice on appeal: If record on appeal: Within 15 days from notice of the J / FO appealed from Within 30 days from notice of the J / FO appealed from CONTENTS OF NOTICE ON APPEAL: (1) (2) (3) (4) Parties to the appeal. the affidavit of merit is not necessary. D on 1 July and served on 1 July on D. then new trial was held and on 1 Sept. Q: Suppose there is an order granting new trial.. the court denied the MFR of D.

HOW APPEAL TAKEN: (1) (2) (3) (4) File a verified petition for review with the CA. CONTENTS OF PETITION: (1) Full names of the parties to the case. (5) The requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition. upon filing of the notice of appeal in due time As to appellant. without impleading the lower courts or judges thereof either as petitioners or respondents. the specification of errors of fact or law. or both. (3) Concise statement of the matters involved. with respect to the subject matter of the appeal. Furnish the RTC and the adverse party with a copy of the petition. upon approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties RULE 42 PETITION FOR REVIEW FROM THE RTC TO THE CA WHEN TAKEN: Petition should be filed and served within 15 days from notice of the decision sought to be reviewed. . the issues raised. allegedly committed by the RTC. (6) Certification under oath against forum-shopping GROUNDS FOR DISMISSAL OF THE PETITION: (1) Non-payment of docket and other lawful fees. (4) Clearly legible duplicate originals or true copies of the J / FO of both lower courts. Pay to the clerk of court the corresponding docket and other lawful fees. or Within 15 days from the denial of the motion for new trial or reconsideration filed in due time after judgment. certified correct by the clerk of court of the RTC. (2) Specific material dates showing that it was filed on time.(1) Appeal taken out of time (2) Non-payment of docket fees (See 2000 midterms) WHEN APPEAL DEEMED PERFECTED: If notice of appeal: If record on appeal: As to appellant. and the reasons relied upon for the allowance of the appeal. Deposit the amount of P 500. upon approval of the record on appeal filed in due time WHEN LOWER COURT LOSES JURISDICTION: If notice of appeal: If record on appeal: Upon perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties With respect to the subject matter.00 for costs.

(3) Non-compliance with proof of service of the petition. the law. RULE 43 APPEALS FROM THE CTA and QUASI-JUDICIAL AGENCIES TO THE CA WHEN TAKEN: Within 15 days from notice of the award. (6) Petition is prosecuted manifestly for delay.(2) Non-deposit for costs. WHEN RTC LOSES JURISDICTION: Upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties.00 for costs. final order or resolution. or the Rules of Court. with proof of service of a copy thereof on the adverse party and on the court or agency a quo. if publication is required by law for its effectivity. (2) Pay to the clerk of court the corresponding docket and other lawful fees. (4) Failure to comply with the requisite contents and documents that should accompany the petition. or Within 15 days from the date of its last publication. upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees. . upon approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties EFFECT OF APPEAL: Shall stay the judgment or final order EXCEPTIONS: (1) If the case is a civil case decided under the Rule on Summary Procedure. If notice of appeal: If record on appeal: Upon perfection of the appeals filed in due time and the expiration of the time to appeal of the other parts With respect to the subject matter. HOW APPEAL TAKEN: (1) File a verified petition for review with the CA in 7 legible copies. (5) Petition is patently without merit. judgment. WHEN APPEAL DEEMED PERFECTED: As to petitioner. (2) If otherwise provided by the CA. (3) Deposit the amount of P 500. or Within 15 days from the denial of petitioner’s motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. (7) The questions raised in the petition are too unsubstantial to require consideration.

EFFECT OF APPEAL: Does not stay the award. together with certified true copies of such material portions of the record referred to therein and other supporting papers. CONTENTS OF PETITION: (1) Full names of the parties to the case. Non-compliance with proof of service of the petition. ENFORCEMENT OF JUDGMENTS 3 Types of Judgment 1. without impleading the courts or agencies either as petitioners or respondents. J / FO or resolution sought to be reviewed.Note: Exemption from payment of docketing and other lawful fees and the deposit for costs may be granted by the CA upon a verified motion setting forth valid grounds therefor. (5) Specific material dates showing that the petition was filed within the period fixed in the Rules. (3) Clearly legible duplicate original or certified true copy of the award. Non-deposit for costs. If the judgment debtor does not exercise the option. 9 (b). Petition is patently without merit. Absence of prima facie showing that the court or agency concerned has committed errors of fact or law that would warrant reversal or modification of the award. (2) Concise statement of the facts and issues and the grounds relied upon for the review. and (4) Sworn certification against forum-shopping. judgment. Petition is prosecuted manifestly for delay. The questions raised in the petition are too unsubstantial to require consideration. final order or resolution EXCEPTION: If the CA directs otherwise upon such terms as it may deem just (Sec. Failure to comply with the requisite contents and documents that should accompany the petition. Money Judgment • Procedure a) Motion for execution b) Order of execution c) Writ of execution d) Levy – Levy is effected by taking physical possession or by garnishment Under Sec. Execution Sale • • . the judgment debtor is given the option to choose which property the officer shall levy. Rule 39. 12) XVI. GROUNDS FOR DISMISSAL OF THE PETITION: (1) (2) (3) (4) (5) (6) (7) (8) Non-payment of docket and other lawful fees. the officer shall first levy on personal property if any and then on real properties if the personal properties are insufficient. J / FO or resolution appealed from.

the rents would go to the judgment debtor.a) Notice       Written notice in 3 public places preferably in conspicuous areas of the municipal or city hall. Duration of notice will depend on the type of property. Special Judgments • • An example of a special judgment is a judgment ordering a judgment debtor to sing in a concert. Even if the judgment creditor is the highest bidder. Sec. Rule 39. removing or defacing notice. there must be a notice as to postponement. 17. post office and public market. If these notice requirements are not complied with. 22. whether in English. or other specific acts. or on some part thereof. However. he must pay cash when there’s a 3rd party claim. c) certificate/deed of sale d) redemption(s) – There might be more than 1 redemption. Filipino or any major regional language. Judgment for Specific Acts a) b) c) d) e) Conveyance. the sale is voidable at the instance of the judgment debtor unless the judgment debtor was in connivance with the sheriff. The notice requirement is for the benefit of the judgment debtor.000. subsequent to the lien under which the property was sold. Rule 39) 1. If there is a lease.  During the period of redemption. then he may be cited for contempt. b) Auction   The auction sale can be postponed under Sec. Rule 39 provides the penalty for selling without notice.  If the redemption is made by the judgment debtor then there can be no more possible redemptions. 2. redemptioner – a creditor having a lien by virtue of an attachment.  Only real property may be redeemed. vesting title Sale of real or personal property Delivery or restitution of real property Removal of improvements on property subject of execution Delivery of personal property 3. Notice by publication is also necessary in case the sale involves real property if such real property exceeds P50. 27.  The period for redemption cannot be extended. The highest bidder must always pay cash. The highest bidder shall get the object being sold. judgment or mortgage on the property sold. This facilitates debt rehabilitation. The notice must be once a week for 2 consecutive weeks in a newspaper selected by raffle. judgment obligor 2. The notice informs potential bidders of the sale.  The following persons may redeem (Sec. delivery of deeds. . possession remains with the judgment debtor. If the judgment debtor does not wish to comply with the special judgment.

equitable grounds Q: Within what time may you move for execution of judgment? A: 5 years. Under Sec. The 3rd party is not a party to the case. Rule 39. delivery. relief 2.Under Sec. necessary clothing is limited for ordinary personal use. Judgment. However. certiorari. 13 (d). you have procedure: notice. then it becomes final. In sale. 3. redemption. 5. Sale. the 3rd party claimant cannot attack the denial via Rule 65. The procedure in execution sale is more in ordinary judgment or judgment for payment of a sum of money. damages –recover against the indemnity or sheriff’s bond within 120 days from the date of the filing of bond 9. reinvindicatory action – action to recover title 8. do you deduct the time during which the injunction was enforced from the running of the 5-yrd period? Suppose the compromise provides for the default to pay an installment. The remedy of the 3rd party claimant would be to intervene. certification. he can always file damages in a separate action. 3rd parties have the same remedies as in provisional remedies except intervention. Rule 39. There is no limit as to the amount. 4 Proceedings in Aid of Execution (1) examination of judgment debtor (2) examination of the debtors of the debtor (3) installment (4) receivers FLOW OF EXECUTION 1. 3rd party claim • If the 3rd party claim is denied by the court. 13 (k). Q: What are the grounds to stay execution of final judgment? A: 1. Q: Suppose there is an injunction v. Since he is not a party. publication. 6. 2. injunction 3. cancel annotation – see Property Registration Decree  These remedies are cumulative (not mutually exclusive). will the 5-yrd period run? . registration. auction. life insurance proceedings are exempt. 7. the enforcement of a judgment during that five-yr period. 6. 4. then you Move for execution Order of execution Writ of execution Levy. the 3rd party claimant cannot recover twice.

2. 15) Judgment for delivery/sale Q: What is an ordinary judgment for the recovery of money? How is it imposed when the J debtor does not pay? A: Levy on his personal property first before real. Personal property not perishable? A. redemption 6. Order of Execution – not appealable 3. Example of perishable property? A.A: No answer. Real property is not perishable. Q. YOU HAVE ANOTHER 10 YRS TO REVIVE IT. Demolition order 5. Return of Writ Q: A revived judgment. S. Q: Suppose the execution writ was issued within 5 yrs . Writ of Execution –issued by clerk of court in name f the court in which J/Order is entered. Q: What is the chronology of execution procedure? A: 1.2.1. Motion for Execution 2.3. a judgment may be enforced by action. can it also be revived? A: YES. it is personal. sec. Sale 5. Q: J for the delivery of real and personal property under S. . Notice requirement for bananas? A. Levy in execution 4. Q. date when you gave writ to sheriff has legal significance (this is when you start counting the 60 DAYS which is the lifetime of the writ) 4.1. Bananas. Q: What is the special judgment? A: Judgment requiring the performance of ANY ACT OTHER THAN THE PAYMENT OF MONEY or the sale or delivery of real property Q: Classify Judgment A: Judgment for payment of money (R 39. 13. and before it is barred by the statute of limitations. auction 5. you give the writ to the sheriff. 18 (a) Q. notice 5. Posting of the notice of sale in 3 public places where the sale is to be conducted. can it be levied after five years? A: Not by motion but by independent action. Rule 39. Third party claim 4. Can you levy the writ after 5 yrs? A: After 5 yrs from date of entry of judgment or from date it becomes final and executory. In case of perishable properties. Q.

if the creditor induce the sheriff to proceed with the sale notwithstanding noncompliance with the requirement. e.Publication requirement is necessary if the value of the property exceeds P400. and the place where the property is situated hence in 6 public places. How many newspapers and for how long? A. Q. 18.g.00 published in the newspaper of general circulation in the places where the property is situated. For whose interest is the publication and notice requirement? A. lawyers who participated in the case. presiding judge. Rule 39. . Q. to minimize its repayment value. What is the purpose of the law in allowing successive redemption? A. Why is the lawyer of the debtor disqualified? A. What is the significance or purpose of the notice? What will happen to the sale if any of the requirement is not fulfilled. 29. Creditors of the debtor subsequent to the judgment. Rule 39. To maximize the debt repaying capacity of the property because usually execution sales are forced sale and therefore sacrifice sales. There might be a clash in their interest. sec.Q. publication? A. Who is a redemptioner? A. Q. Rule 39) Q. No. To enhance the debt repaying capacity of the property. Purpose of the requirement as to notice. Notice requirement for real property? A. Sheriff. because it is not a newspaper of general circulation in the province where the property is located? Q. . Q. How does this requirement tend to subserve the interest of the judgment debtor? A. Can you publish a notice of sale of a property here in Makati in the El Ponente? A. deputy sheriff.In the place where the property is to be sold and in the place where the sale is to be conducted. Q. Judgement debtor and its successors in interest and redemptioner (sec. Q. it is only published for 19 days or 2 weeks or if the newspaper is not of general circulation of rif there is a newspaper of general circulation in Spanish and it is not published in the newspaper or it is reported only in 2 newspapers or if it is posted only in 2 public places. sec. Q.3 public places. what is the effects if any of these requirements is not fulfilled? A. Q. notices of sale. . Who may redeem? A. For the interest of the judgment debtor. Due process. A right of redemption is allowed if the property sold is real property. Anybody disqualified from purchasing in the execution sale? A. The more who knows the greater is the chance that more bidders will bid and the better price you are likely to get. It depends. 13 (O) notice of sale and publication requirement . the sheriff can be sued for actual damages.

If Y can redeem ahead of the defendant. by redemptioner – price which constitutes the value of the lien of the subsequent redemptioner and interest of 2% per month plus taxes paid. sir did not give the right answer) Q. What are the payments to be made by the redemptioner? A.000. If the defendant should like to redeem the property from X. In the case of a redemptioner. Sec. Sec. can he still redeem the property after Y has redeem it? R. Q. the property was mortgaged to Y for P25. Another important distinction between a redemption of redemptioner and redemption by a judgment debtor is that if it is the judgment debtor who redeems. 31. Can he redeem ahead of the defendant? A. If there is another mortgage (D) after him for P10.000. Cost of lien which is P50. Q. Q. Can a redemptioner redeem ahead of the judgment debtor? A. .000? A. Q. If the defendant will redeem the property directly from Y then he only has to pay P50. (questionable.000 to X plus interests. 30. Yes. How much does Y have to pay to redeem? A.000. 30. Rule 39. Amount paid by the purchase is 1% interest together with the amount of any assessments or taxes which the purchaser may have paid plus interest. No. P50. Sec. Plaintiff v. How much does the defendant have to pay Y for him to redeem the property? A. Q.000. Yes. Rule 39. Then that presupposes it might be that the redemptioner goes ahead. What is the difference between a redemption of a judgment debtor and a redemption of a redemptioner? A. 12 months. Period of redemption. taxes paid by the judgment creditor and interest of 1% per month. Y is also qualified to redeem. In case of a judgment debtor the period is within 12 months from the date of the sale. Defendant. A. Q. Q. P50.000 plus taxes plus interest. what will happen to the defendant. Execution was levied upon the property of the defendant and is sold for P50. Q. he has to pay P50. Yes.000 can D also redeem? Can he redeem pay of X? A. Q. He does not have to pay the P25. How much time does he have to redeem it? A.Q. the period is within 60 days from the last redemption. As the amount payable upon redemption : by judgment debtor – pay the purchase price.000. It is sold to X thereafter and after the levy and before the sale. Rule 39 provides that a judgment debtor in effecting redemption must make the same payment as a redemptioner does.000 plus taxes plus interest. Judgement is for P100. Q. no further redemption is allowed. how much does he pay? A.

How much should the judgment debtor pay X to recover the property? P30 + interest. How much will the redemptioner money be? P3M – P480. Q. If the judgment debtor wants to redeem the property. What are the actions against a reneging bidder? A. the mortgage came after the levy of execution but X bought it at the foreclosure. If the property is in the possession of the judgment debtor he is not required to pay rents.000 a month. B. but X who is a mortgagee of the property. This is not unfair because the purchaser is supposed to get a 1% a month interest to make up for the difference between the fair market value and the value at which he paid. the rents will go to the judgment creditor and rents received will be credited from the redemption money. Pending redemption at the time of the sale it was being leased to a foreigner for P40. 31 Rule 39. the property for P20 to (also)?.000 a month. the debtor mortgagee. Judgment against its owner and it was levied upon and sold on execution to X for P3M. Yes. Judgment – debt – P100 Property of the debtor levied upon and sold for execution for P30. when during the period of redemption a suit is brought to destroy the right to redeem and judgment is rendered in favor of the existence of the right of redemption. What is the difference between redemption by judgment debtor and redemtion by redemptioner? A. P40. If the property is in the possession of a third person or a tenant. If you want the property badly and it is worth more than what it might draw at an execution sale (an execution sale is a sacrifice sale). It is considered that he got a bonus because he bought it cheap. If after the judgment was levied on the property which was sold for P30. 34. C. how much would he pay to s? P30 + interest.000 x 12 months = P480.000 – P2520 interest. he must pay what the redemptioner paid plus interest.000 E. D. To whom will the rent go? to X. It depends who is in possession of the property. You will never get the fair market value here. If redemption made by the judgment debtor. no further redemption is allowed under sec.g. Dasmarinas property rented out to a foreigner for P40. e. The execution sale is conducted by auction sale between the hours of 9am to 5 pm.Therefore is judgment debtor redeems from a redemptioner. Q. That means a redemptioner can go ahead. so it is better to lend the debtor money on the security of the property which was already levied upon and then you buy the property because for the debtor to redeem it from you he has to pay both for what you pay for it plus P20. Q. Q Is it possible for the redemption period to go ahead beyond one year? A. Ex: A. 1) He is liable for the amount of the loss – difference between the amount which have been realized and the amount which was actually realized. Another reason is stated under Sec. 2) Contempt . Who is entitled to the rents pending redemption? A. It was sold to X.

What are the notices for execution sale? A. 3. B. B (another plntf) and a judgment against B was rendered then C can levy on B’s right to redeem the property subject of the first case (A v. (What the third party claim will recite. Order For Application of Property and income to satisfaction of judgment in fixed monthly installment. B). with whom will he file it. Debtor may pay execution against creditor. That is why successive redemption is allowed. posting b. sec. in an execution for bidding unlike a third party claimant in an attachment proceeding intervene. What execution is returned unsatisfied. He can file a third party claim. C. 18. The remedies of a third party claimant are same with the exemption of the third party complaint. _____________ of _____ of judgment debtor. Q. we have already taken that up) 2. Rule 39. If the judgement is adverse to B. Sale of ascertainable interest of judgment debtor in interest Junior encumbrances usually redeems the property because it is in this way that his lien can be paid.Redemption is to maximize the debt repaying capacity. He can file a petition if the levy is on real property for the removal of the annotation of levy on the ground that it is done through error or mistake under the Property Registration Decree. publication . B. He can file an action for damages against the indemnity bond filed by the judgment creditor. 46. what is the remedy of the judgment creditor? A. 1. _____________ of judgment debtor. If judgment debtor redeems it he does not have to pay the balance of P100. Q. the right of redemption of B cannot be levied upon by A. only P50 because the lien of the judgment creditor is also derived from the judgment which is the subject of execution. He can intervene in the action under Rule 12. 4. Illustration: A v. and the levying creditor in which he can also ask for a writ of _______(?). THIRD PARTY CLAIMS: Procedure is the same as in attachment. Suppose there is another case C v. He can also redeem ahead of someone more senior to him. E. He can bring a separate reinvindicatory action against the sheriff. What are the remedies of a person who claims a right or interest or title on property levied upon on attachment? A. Rule 39 Kinds of notice in this kind of sale: a. In all these remedies are available to a third party claimant in an execution for …… except that he cannot intervene because trial has already ended and intervention can only be done before and or during trial. 5. Appointment of a receiver F. D. How is satisfaction of judgment entered? By who? Sec.

in an action for declaratory relief. Plaintiff loses. Problem: What if the tenant does not vacate. Problem: Plaintiff lessor files an unlawful detainer case against the lessee. partition. this is not true in ordinary judgments of the court. They include interpleader. before breach of the contract. He wins the appeal. If this were an ordinary action. certiorari. For example. any of the parties may institute an action in court for a determination of any question of construction or validity arising under the instrument or for a determination and declaration of his rights and duties thereunder. Postponements are not allowed. it is not conclusive even between the same parties on any matter other than possession. If the period to file a case of unlawful detainer lapses. Bautista didn’t answer. Tacita reconducta means impliedly renewed. all basically ordinary civil proceedings. 21. there is a need for a prior demand. can he be held in contempt? . Instant relief is needed since the situation is volatile. and this right is violated by the defendant. For example. eminent domain. In an ordinary civil action. in a special action. Otherwise. However. He appeals. Forcible entry and unlawful detainer are given special treatment because they affect public order. The demand must be to vacate and to pay the rent. This occurs if the lessor allows the lessee to stay. thereby causing prejudice or damage. in unlawful detainer cases. forcible entry and unlawful detainer and contempt. foreclosure of mortgage. then accion publiciana will lie. it is not necessary for these 2 factors to be present. for a plaintiff to go to court. a judgment in an action for unlawful detainer is conclusive only on the issue of possession such that even if the judgment may contain some statements about ownership or other matters. Under Sec. in an action for foreclosure of mortgage. 2. two basic factors must be present: he must have a right. declaratory relief. then the action would be for rescission of contract. prohibition. under Sec. The demand SHOULD NOT be to vacate or pay the rent. Rule 70. two judgments are possible. The judgment is immediately executory. this will not qualify as an unlawful detainer since the lessee is given an option. quo warranto. SPECIAL CIVIL ACTIONS What is a special civil action? How is it distinguished from an ordinary civil action? Special civil actions are the actions provided for by the Revised Rules of Court from Rules 62 to 71. FORCIBLE ENTRY AND UNLAWFUL DETAINER By the very provisions of the rules. There are prohibiting pleadings. The procedure here is summary.XVII. Problem: Does the immediate execution refer to vacate or to pay the rentals? Answer: Prof. What makes them special are the distinct peculiarities inherent in their very nature not found in ordinary civil actions. Is this immediately executory? Answer: Yes.

The order of immediate execution is OK.00 a month under a written contract for one year.000. 72 SCRA 148) Q: T was leasing his apartment from L at P 5. (Felisilda v. the MTC ordered the defendant to vacate the leased premises and to pay a monthly rental plus attorney's fees. D challenged the validity of the immediate execution for having been issued without any previous notice to him.Answer: No. T refused to vacate. then the sheriff needs a special order. (Pangilinan v. (NCC 487) Can an MTC award moral and exemplary damages in an unlawful detainer suit? No. Anyone of the co-owners may bring an action for ejectment. The award of attorney's fees is proper. plus P 10. The only damages that can be recovered in an unlawful detainer suit are the fair rental value or the reasonable compensation for the use and occupation of the real property. But the RTC granted plaintiff's motion for execution on the ground of defendant's failure to file a supersedeas bond. Villanueva.00 stipulated rental and P 500. L served a demand upon T to vacate the premises upon its expiry because he was going to demolish the building. as where the action is brought by a vendee or other person against whom the possession is unlawfully withheld after the expiration or termination of the right to hold possession. a parcel of land in 1985. D forcibly entered into and took possession of the property. L's building plans were delayed. 15. The attorney's fees need not be covered by a supersedeas bond. though. Other damages must be claimed in an ordinary action. MTC granted execution pending appeal for D's failure to post a supersedeas bond.00 attorney's fees.00 a day for damages cannot properly be made in an unlawful detainer action where the only damages recoverable are those which are caused by the loss of the use and occupation of the property and not such damages as may be recovered only by the plaintiff if he were the owner and he cannot be declared as such in an unlawful detainer action. Rule 70. 139 SCRA 431) Unlawful detainer action by P against D was decided in P's favor by MTC. (Reyes v. Adil. 43 SCRA 136) Q: In an ejectment case. Is the decision objectionable in any way? A: Yes. Is the order of execution correct? A: No. In consequence. It is the prevailing party moving for execution pending . The award of P 500. Q: May a person not in possession of the premises bring an action for unlawful detainer of these premises? A: Yes. (De Lauriano v. One month before the expiration of the lease. Rule. If improvements must be removed.000. Sec. (?) MTC is not duty-bound to notify D of immediate enforcement of the appealed decision. On appeal. defendant deposited the current rentals with the RTC. Sec. See Rule 70.000. Aguilar. CA) A and B inherited from their father C. The sheriff can bodily throw out the tenant. It is directed to the sheriff. So L brought an action for unlawful detainer against T and obtained judgment therein directing T to pay him the P 5. On P's motion. the order is not directed to the tenant.00 a day for every day of delay as damages until he finally vacates the premises. Q: Can the MTC grant a writ of preliminary mandatory injunction in an unlawful detainer case? A: YES. 19 requires a supersedeas bond only if there are rentals in arrears. May A by himself and without including B as his co-plaintiff. bring an action for ejectment against D? Yes. IN 1992.

After D filed his answer. declaring the residential building constructed on the lot by D as forfeited in P's favor. So.appeal who is obliged to serve a copy of such motion on the adverse party's counsel. In his complaint.000 attorney's fees to P. Tutaan. can the party file an action for declaratory relief in the SC? Does the SC have jurisdiction over such a case? Can it render a declaratory relief judgment? Is the granting of declaratory relief discretionary? Yes. A declaratory judgment is a proceeding determinative of the rights of the parties to the case. the MTC rendered a judgment on the pleadings granting all the reliefs prayed for in P's complaint. When a party has doubts about a certain act. it is an opportunity for the party without having to violate but they have already acquired vested rights. P moved to have D cited and adjudged in contempt. D cannot be punished for contempt for his alleged disobedience of an order not addressed to him. Sec. 221 SCRA 15) P filed a complaint for unlawful detainer against D in the MTC. The writ of execution. So. For refusing to comply with the writ of execution. Should the motion be granted? The motion for contempt should be denied. An advisory opinion is rendered at the request of the executive or legislative department. (Eh?) Distinguish an advisory opinion from a declaratory judgment. P prayed for judgment ordering D to vacate the leased premises and to surrender them to P. Montesa. What will give forth to the court's discretion whether to grant or deny declaratory relief? In what instances is declaratory relief not appropriate? (1) Citizenship (2) Invalidity of a tax ordinance where the tax is due and demandable CONTEMPT The RTC rendered judgment ordering D to vacate a certain house and deliver it to P. Is this judgment assailable on any jurisdictional grounds? DECLARATORY RELIEF What is the purpose of a declaratory relief device? It does not require the party to wait to violate the law before it can acquire vested rights. 124 SCRA 877) . 8 (d)). (De los Santos v. is addressed to the sheriff and not to D. (Lipata v. This judgment became final but D refused to vacate the house despite service upon him by the sheriff of the writ of execution. and adjudging D liable to pay accrued rentals and P 5. being for the delivery of real property (Rule 39.

P moved to have X and Y cited for contempt. Their elements are similar. these remedies emanated from the Court of Chancery. The land was sold on execution sale to P. The requisites are generally the same.P sued D in the RTC to recover a parcel of land. there's always Rule 65. In a Rule 65 certiorari. These remedies were instituted by a king to temper the harshness of the judgments of the law courts and to avoid the clash between the courts of law and the courts of equity. For P to recover the properties from X and Y. Execution of this judgment was levied on a parcel of land owned and occupied by D. That is why you can not file a petition for Rule 65 certiorari to review an order of default and you cannot avail of the motion to set aside an order of default. 75 SCRA 234) Judgment for a sum of money was rendered by the RTC against D and in favor of P. PROHIBITION AND MANDAMUS We take them up as modes of review of trial court actions although these prerogative writs are available as modes of review not only of judicial actions but even of actions of quasi-judicial government bodies. Where the act to be performed is discretionary. or a petition for relief. so evidence is not received. (Flores v. So when we are thinking of the modes of attacking a judgment. Facts are not tried. D refused to vacate the land despite the issuance of a writ of execution and possession.not a special judgment under Sec. These equitable remedies were granted only when the remedies of law were not adequate. Arlegui. For refusing to vacate the land. and we study them as modes of review of trial court actions which are the modes they are commonly used as in a defense. When all else is lost. 9 of Rule 39. from the subject land. the alleged occupants. not to X and Y. or C. After the expiration of the redemption period. X and Y were not parties to the case in which the judgment was issued and so this judgment cannot bind them. They usually are asked for in tandem -certiorary and prohibition. 8 -. Ruiz. P then moves to have D cited for contempt. certiorari. What would constitute contempt is the pre-entry of D after possession has been delivered to P by the sheriff in enforcement of the writ of execution. Moreover. it is limited to a review of the records. It was a process intended to enforce a judgment for the delivery of the possession of real property as contemplated by Rule 38. A writ of execution and a writ of possession were subsequently issued. its performance cannot be compelled by a . disobedience to which may be punished by contempt. Sec. the sheriff sought to physically remove X and Y. As to the history of these prerogative writs. 90 SCRA 428) CERTIORARI. the writ of possession was addressed to the sheriff. Is D liable for contempt? No. D's mere refusal or unwillingness to vacate the property is not contempt. (Gatchalian v. In an effort to enforce the writ of possession. Certiorari as a mode of review of trial court action is available only when there is no appeal or other remedy. Should the motion be granted? No. P has to file another action. P & M. we always put at the bottom Rule 65. it does not mean that these extraordinary writs are available. The writ of execution is addressed solely and exclusively to the sheriff who is called upon to oust D and place P in possession. You must show that you did not lose those other remedies by neglect. Mandamus is available to compel the performance of a mandatory duty mandated by law. whether the mode of review is directed at a trial court or at an administrative body. Judgment was rendered in P's favor directing D to reconvey the land to P. (?) Even if the other remedies are no longer available.

In certiorari as an original action. the petition raises the issue as to whether the lower court acted without or in excess of jurisdiction or with grave abuse of discretion. the prior filing of a motion for reconsideration is not required while certiorari as an original action. In certiorari as an original action. award or final order on the merits. • In certiorari for purposes of appeal. the appellate court is in the exercise of its appellate jurisdiction and power of review. CERTIORARI Certiorari – Rule 45 differentiated from Rule 65 • In appeal by certiorari. The following are the exceptional instances when a motion for reconsideration need not be filed before a Rule 65 petition for certiorari: e) where the order is a patent nullity f) where the questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court. Prohibition can be used not only to stop actions not yet performed but also to undo acts already done on the principle that equity affords a complete relief. In this case. the petition is based on questions of law which the appellant desires the appellate court to resolve. speedy or adequate remedy. • In appeal by certiorari. An original action for certiorari may be filed not later than 60 days from notice of the judgment. • Certiorari. while in certiorari as an original action. involves the review of judgment. Mandamus is also used as a mode of testing entitlement to an office. the occupant of the office is an absolute usurper and the petitioner claims no title to it for himself. a motion for reconsideration is a condition precedent.mandamus although the exercise of discretion may be compelled by mandamus but not the exercise of discretion in a particular way. the petitioner and respondent are the original parties to the action. • In appeal by certiorari. the parties are the aggrieved party against the lower court or quasi-judicial agency and the prevailing parties. order or resolution sought to be assailed. as a mode of appeal. does not stay the challenged proceeding. IN mandamus. • Appeal by certiorari stays the judgment. award or order appealed from. we have to be careful in distinguishing it from quo warranto. The original action for certiorari may be directed against an interlocutory order of the court prior to appeal from the judgment or where there is no appeal or any other plain. or are the same as those raised and passed upon in the lower court g) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government . the higher court exercises original jurisdiction under its power of control and supervision over the proceedings of lower courts. who thereby respectively become the petitioner and respondents. • Appeal by certiorari must be made within the reglementary period for appeal. An original action for certiorari unless a writ of preliminary injunction or a temporary restraining order shall have been issued.

The significance of this fact is that. An election contest challenges the right of a person to hold office on the ground of irregularities in the conduct of elections for the said office. Claiming that the documents are privileged. a motion for reconsideration would be useless i) where the petitioner was deprived of due process and there is extreme urgency for relief j) where the proceedings in the lower court are a nullity for lack of due process k) where the proceeding was ex parte or in which the petitioner had no opportunity to object l) where the issue raised is one purely of law or where public interest is involved Defendant was ordered by the MTC to produce certain documents. 1 and 3) QUO WARRANTO Quo Warranto may be distinguished from election contests as follows: The basis for quo warranto is that the occupant is disqualified from holding the office by reason of ineligibility or disloyalty. In election contests. the successful protestant will assume the office if he had obtained a plurality of the valid votes. Alleging MTC's grave abuse of discretion and want of jurisdiction. Defendant has available to him the remedy of appeal and this is an adequate remedy because the execution of the judgment is suspended pending the appeal. the RTC ordered defendant to be jailed until he complies with the order to produce. the reglementary period to appeal shall be 30 days and a record on appeal shall be required for each of the permissible appeals. EXPROPRIATION An appeal may be taken from the order authorizing expropriation and. the commissioners take into account unearned or accrued benefit (Sec. So. defendant filed with the RTC a petition for certiorari seeking to set aside the RTC contempt order directing him to be jailed. In determining just compensation. In the condemnation proceedings the issues are whether or not there is a right to condemn and whether or not the property is condemnable. If the quo warranto proceedings succeeds. 4 in relation to Sec.h) where under the circumstances. (Rule 74. just as in special proceedings. thereafter. without the court first requiring the partitioning heirs to put up any bond at all? Yes. (Rule 71. Sec. There is no need for a bond if only realty is partitioned and no personalty is distributed. Is the certiorari petition proper? No. after due notice and hearing. Sec. defendant refused to comply with the order. Rule67) FORECLOSURE OF REAL ESTATE MORTGAGE . 6. the respondent will be ousted but the petitioner will not assume the office. 2) PARTITION May a court approve an extrajudicial partition among the co-heirs of a deceased who died intestate and without debts. another appeal lies against the judgment on the just compensation.

There is no need for judicial confirmation of the sale. The excess of the proceeds goes to the judgment debtor. etc. 2.e. There is a need for confirmations since the sale may be unconscionable or the buyer may have been prohibited from purchasing the real property (i. . But there is what is called “equity of redemption”. • The excess of the proceeds goes to the junior encumbrancers. • Junior encumbrancers are necessary and not indispensable parties. • See Sec. Real Estate Mortgage Foreclosure (a) Judicial • There is no right to redeem. Execution Sale • • • There is right of redemption for real property. Note the difference in redemption in cases of REM foreclosure and execution sales.1. 47 of the General Banking Law of 2000. • There is a need for confirmation of the sale. auction officer. (b) Extrajudicial • There is a right of redemption within 1 year from registration of sale.) • The excess of the proceeds goes to the junior encumbrancers.

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