AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA Judicial decisions applyin$ or interpretin$ the laws or the Constitution shall for# part of the le$al syste# of the Philippines. (Article 8% Civil Code+ No !ud$e or court shall decline to render !ud$#ent "y reason of the silence% o"scurity or insufficiency of the law. (Article 9% Civil Code+

CIVIL PROCEDURE REVIEWER PROFESSOR VICTORIA A. AVENA
I. Introductory Concepts II. Judici ! Po"er A. Nature and Scope of Judicial Power 1. 1987 Philippine Constitution Actual Controversy and Judicial Review.
he !udicial power shall "e vested in one Supre#e Court and in such lower courts as #ay "e esta"lished "y law. Judicial power includes the duty of the courts of !ustice 1. o settle ctu ! contro#ersies involvin$ ri$hts which are le$ally de#anda"le and enforcea"le% and &. o deter#ine whether or not there has "een a $r #e %use o& discretion 'ountin$ to ! c( or e)cess o& *urisdiction on the part of any "ranch or instru#entality of the 'overn#ent. (Article )***% Section 1% 1987 Constitution+

:. Constitutional Protections 1. Constitutional Status
he Con$ress shall have the power to define% prescri"e% and apportion the !urisdiction of the various courts "ut #ay not deprive the Supre#e Court of its !urisdiction over cases enu#erated in Section ; hereof. No law shall "e passed reor$ani8in$ the Judiciary when it under#ines the security of tenure of its 4e#"ers. (Article )***% Section &% 1987 Constitution+ he Supre#e Court shall have the followin$ powers< ./0 19ercise ori$inal !urisdiction over cases affectin$ a#"assadors% other pu"lic #inisters and consuls% and over petitions for certiorari% prohi"ition% #anda#us% -uo warranto% and ha"eas corpus. .10 Review% revise% reverse% #odify% or affir# on appeal or certiorari% as the law or the Rules of Court #ay provide% final !ud$#ents and orders of lower courts in< . 0 All cases in which the constitutionality or validity of any treaty% international or e9ecutive a$ree#ent% law% presidential decree% procla#ation% order% instruction% ordinance% or re$ulation is in -uestion. .%0 All cases involvin$ the le$ality of any ta9% i#post% assess#ent% or toll% or any penalty i#posed in relation thereto. .c0 All cases in which the !urisdiction of any lower court is in issue. .d0 All cri#inal cases in which the penalty i#posed is reclusion perpetua or hi$her. .e0 All cases in which only an error or -uestion of law is involved. .20 Assi$n te#porarily !ud$es of lower courts to other stations as pu"lic interest #ay re-uire. Such te#porary assi$n#ent shall not e9ceed si9 #onths without the consent of the !ud$e concerned. .30 =rder a chan$e of venue or place of trial to avoid a #iscarria$e of !ustice. .40 Pro#ul$ate rules concernin$ the protection and enforce#ent of constitutional ri$hts% pleadin$% practice% and procedure in all courts% the ad#ission to the practice of law% the inte$rated "ar% and le$al assistance to the under2 privile$ed. Such rules shall provide a si#plified and ine9pensive procedure for the speedy disposition of cases% shall "e unifor# for all courts of the sa#e $rade% and shall not di#inish% increase% or #odify su"stantive ri$hts. Rules of procedure of special courts and -uasi2!udicial "odies shall re#ain effective unless disapproved "y the Supre#e Court. .50 Appoint all officials and e#ployees of the Judiciary in accordance with the Civil Service 5aw. (Article )***% Section ;% 1987 Constitution+ he Supre#e Court shall have ad#inistrative supervision over all courts and the personnel thereof. (Article )***% Section .% 1987 Constitution+

,eclaratory Relief

Any person interested under a deed% will% contract or other written instru#ent% or "+ose ri$+ts re &&ected %y st tute, e)ecuti#e order or re$u! tion, ordin nce, or ny ot+er $o#ern'ent ! re$u! tion ' y% "efore "reach or violation thereof% "rin$ an action in the appropriate Re$ional rial Court to deter'ine ny -uestion o& construction or # !idity risin$, nd &or dec! r tion o& +is ri$+ts or duties, t+ereunder. An action for the refor#ation of an instru#ent% to -uite title to real property or re#over cloud therefro#% or to consolidate ownership under Article 1./7 of the Civil Code% #ay "e "rou$ht under this Rule. (Rule .0% Sec. 1+

Presidential and )ice Presidential 1lections

he Supre#e Court% sittin$ en "anc% shall "e the sole !ud$e of all contests relatin$ to the election% returns% and -ualifications of the President or )ice2President% and #ay pro#ul$ate its rules for the purpose. (Article )**% Section 3% para$raph 7% 1987 Constitution+

4artial 5aw and Suspension of 6rit of 7a"eas Corpus
he Supre#e Court #ay review% in an appropriate proceedin$ filed "y any citi8en% the sufficiency of the factual "asis of the procla#ation of #artial law or the suspension of the privile$e of the writ of ha"eas corpus or the e9tension thereof% and #ust pro#ul$ate its decision thereon within thirty days fro# its filin$. (Article )**% Section 18% Para$raph 0% 1987 Constitution+

&. Statutory :asis of Judicial Review

6hen the courts declare a law to "e inconsistent with the Constitution% the for#er shall "e void and the latter shall $overn. Ad#inistrative or e9ecutive acts% orders and re$ulations shall "e valid only when they are not contrary to the laws or the Constitution. (Article 7% Para$raph &20% Civil Code+

&. Statutory *ncrease of Appellate Jurisdiction

0. Judicial 5e$islation

No law shall "e passed increasin$ the appellate !urisdiction of the Supre#e Court as provided in this Constitution without its advice and concurrence. (Article )**% Section 0/% 1987 Constitution+

1 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

A#en Notes Pre!i'in ry Consider tions .// No# 630 6hat is Jurisdiction> Jurisdiction is the power of the courts to hear and entertain action or proceedin$s and to render a !ud$#ent therein that "inds the parties to the action or proceedin$s. *t pertains to the authority to decide cases su"#itted "efore a court of law. 7ow a"out -uasi2!udicial "odies> ?uasi2!udicial "odies perfor# duties and decide cases si#ilar to courts. hey decide the ri$hts and o"li$ations of the persons and settle disputes su"#itted "efore the#. 7ow is !urisdiction created> Jurisdiction is conferred "y law. he !urisdiction of the lower courts is defined under the Judiciary Reor$ani8ation Act of 198/ (:P 1&9% which too@ effect on Au$ust 13% 1981+. he !urisdiction of the Supre#e Court is defined under the 1987 Constitution. (Article )***% Section ;+. 4ay the parties stipulate or a$ree on a courtAs !urisdiction> No. 6hat is !udicial power> *s !urisdiction part of !udicial power> Judicial power is the power to hear and settle disputes. Althou$h the definition of !udicial power is not clearly spelled out in the law% Prof. Avena is of the "elief that the concept of !udicial power was developed throu$hout the history of A#erican and 1n$lish laws% to which our le$al syste# owes a lot throu$h coloni8ation "y the BS. *n the BS% !urisdiction was defined "y e9perience% in that there #ust "e a "ody or entity with the power to decide a case. Jurisdiction is part of !udicial power. Ori$in ! *urisdiction is when a court ta@es co$ni8ance of a case at the first instance% which is why the R C where for#erly called the Courts of Cirst *nstance (or in the words of Prof. Avena D @orte n$ unan$ dulo$+. Appe!! te *urisdiction is the power of a court to review the final orders or decisions of a lower court. race the develop#ent of !urisdiction throu$h the laws and statutes $overnin$ it. Judiciary Act of 1938 (RA &9.+ EF Judiciary Reor$ani8ation Act of 198/ (:P 1&9+ EF A#endin$ Certain Sections of the Judiciary Reor$ani8ation Act of 198/ (1= 00+ EF (RA 79/&+

6hat are speciali8ed courts> Specific or li#ited courts are courts whose !urisdiction was specifically li#ited "y law to certain classes of actions li@e cases involvin$ !uveniles or landlord2tenant relations. he speciali8ed courts included the Juvenile and ,o#estic Relations Court% Court of A$rarian Relations and Circuit Cri#inal Court. hese courts have "een a"olished and the !urisdiction of the cases% which they could ta@e co$ni8ance of have "een transferred to the Re$ional rial Court. 6hat courts have $eneral !urisdiction> he #unicipal courts% Re$ional rial courts% Court of Appeals and the Supre#e Court are courts of $eneral !urisdiction. Althou$h the law i#poses li#its on the !urisdiction of courts% they are still considered courts of $eneral !urisdiction and not speciali8ed courts as speciali8ed courts pertain to li#its due to the su"!ect #atter of the action and not to procedural #atters. Are a civil action% civil case% and civil suit the sa#e in our !urisdiction> Ges% these ter#s are used interchan$ea"ly. he distinction was used in A#erican !urisprudence in relation to distin$uishin$ courts of law and courts of e-uity. Re$ional rial Courts pertain to territorial !urisdiction or !udicial re$ions. here are currently 10 !udicial re$ions% includin$ a#on$ the# the 4etropolitan 4anila Judicial Re$ion. Althou$h the Re$ional rial Courts e9ercise the sa#e powers in ter#s of !urisdiction% the scope of their !urisdiction is li#ited to their !udicial re$ions. A ?C R C cannot issue an e!ect#ent order to "e e9ecuted in ,avao. A#en Notes ./2 No# 630

7ow #any constitutional courts do we have> he 1987 Constitution e9pressly created only one court% the Supre#e Court. he Sandi$an"ayan is a constitution !!y ' nd ted court. All other courts in the Philippines are statutory courts or courts created "y law. 7ow do we deter#ine su"!ect2#atter !urisdiction> Jurisdiction is deter#ined "y law. 7owever% a court ac-uires !urisdiction over an action "y $oin$ to the alle$ations in the pleadin$s. *f the alle$ations in the pleadin$s are sufficient that they pass the re-uisites pre2 deter#ined "y law% then the proper court shall ta@e co$ni8ance of the action. Su"!ect #atter !urisdiction is defined "y the law "ut in a pleadin$% the necessary ele#ents #ust "e alle$ed in order for the court to e9ercise !urisdiction. 6hat is evidence aliunde>

2 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

E#idence !iunde is evidence fro# outside or fro# another source. *t is the evidence drawn fro# sources e9terior to the written instru#ent% in the case of civil action% sources apart fro# the pleadin$ itself. 6hen can a #otion to dis#iss for lac@ of !urisdiction "e raised> A #otion to dis#iss for lac@ of !urisdiction of the court can "e raised at any ti#e e9cept that in cases where estoppel "y laches applies% the Supre#e Court has held that lac@ of !urisdiction #ay "e overloo@ed and the action prospers in the interest of !ustice. i!a# v. Si"on$hay CAC S< i!a# filed an action to recover P1%9/8 "ond fro# the 4anila Surety Corporation. Althou$h the case should have "een filed with the 4unicipal rial Court% the plaintiff filed it with the Re$ional rial Court. he defendant% 4anila Surety Corporation% did not o"!ect to the !urisdiction of the 4unicipal rial Court despite the a#ount of the clai#. 6hen the R C rendered a decision in favor of 4anila Surety% i!a# filed an appeal with the CA. *n the CA% the R CAs decision in favor of 4anila Surety was reversed and ordered 4anila Surety to pay i!a#. 4anila Surety appealed to the Supre#e Court sayin$ that the ori$inal decision of the R C should "e declared void for it lac@ed !urisdiction. *n short% 4anila Surety wanted to reverse the ori$inal decision in the R C "ecause of the unfavora"le decision it $ot in the Court of Appeals. 715,< Jurisdiction over the su"!ect #atter is conferred upon the court e9clusively "y law. 6hen a court has no !urisdiction of the case "ased on the pleadin$s% then a #otion to dis#iss #ust "e filed at the earliest possi"le ti#e. 4anila Surety was estopped fro# -uestionin$ the !urisdiction "ecause it voluntarily su"#itted to the !urisdiction of the R C% even if the a#ount of the clai# #ade the action co$ni8a"le "y the #unicipal court. 7ow is su"!ect #atter !urisdiction different fro# perfectin$ an appeal> Su"!ect #atter !urisdiction refers to the nature of the action "y which a court has power to decide the action or proceedin$. *n perfectin$ an appeal% the action #ust co#ply with certain re-uire#ents (li@e periods+ "efore an appellate court can ta@e co$ni8ance of the case. ,ifferentiate "etween a -uestion of fact and a -uestion of law. A -uestion o& & ct relates to an issue involvin$ the appreciation of the fact% for e9a#ple the interpretation of the contract.

A -uestion o& ! " deals with the application of the law. 6hat are au9iliary writs or process> hey are te#porary orders of the court li@e preli#inary in!unction and "ail. heir i#portance lies in the !urisdiction of the Court of Appeals (:P 1&9 Sec. 9 (1++. H he Court of Appeals shall e9ercise ori$inal !urisdiction to issue writes of #anda#us% prohi"ition% certiorari% ha"eas corpus% and -uo warranto% and u)i!i ry "rits or processes, "+et+er or not in id o& its ppe!! te *urisdiction. St. 4artin Cuneral v N5RC Rulin$s of the National 5a"or Reconciliation Co##ission should first "e appealed to the Court of Appeals% "efore it can reach the Supre#e Court. Prof. Avena says it was an ano#alous decision "ecause previously the rules and statutes provided that decisions of the N5RC are to "e appealed directly to the Supre#e Court% "ut the decision #ade in this case was contrary to that effect and was without any "asis in law. 6hat is $ency> the doctrine o& -u !i&ied po!itic !

he e9ecutive power is vested in the Chief 19ecutive. 7owever% he also acts throu$h his Ca"inet Secretaries. 6hat is the doctrine o& pri' ry *urisdiction> he doctrine of pri#ary !urisdiction or e9haustion of ad#inistrative re#edies provides that where the law vests in an ad#inistrative a$ency the power to decide a controversy or treat an issue% the courts will refrain fro# entertainin$ the case until the a$ency has fulfilled its statutory o"li$ation. Should the con!u$al property "e included in the co#putation of the a#ount of the clai#> Ges. Con!u$al property is included in the a#ount of the clai#. Accordin$ to Cernande8 v. 4aravilla ('R No. 5218799% 01 4arch 19.3+% where the property% which is the only one wherein the decedent had any proprietary ri$hts% is con!u$al in nature% it is the total value of the such con!u$al property% and not only the value of the share of the decedent therein% which should furnish the !urisdictional test. 4anchester ,evelop#ent v CA. ('R No. 7;919% 7 4ay 1987+ ,oc@et fees #ust "e paid within reasona"le ti#e. he rule is well2settled Ithat a case is dee#ed filed only upon pay#ent of the doc@et fee re$ardless of the actual date of filin$ in court.I hus% in the present case the trial court did not ac-uire !urisdiction over the case "y the pay#ent of only P31/.// as doc@et fee. Neither can the a#end#ent of the co#plaint there"y vest !urisdiction upon the

3 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

Court. Cor all le$al purposes there is no such ori$inal co#plaint that was duly filed which could "e a#ended. Conse-uently% the order ad#ittin$ the a#ended co#plaint and all su"se-uent proceedin$s and actions ta@en "y the trial court are null and void. he Court ac-uires !urisdiction over any case only upon pay#ent of the prescri"ed doc@et fee. An a#end#ent of the co#plaint or si#ilar pleadin$ will not there"y vest !urisdiction in the Court% #uch less the pay#ent of the doc@et fee "ased on the a#ounts sou$ht in the a#ended pleadin$ Sun *nsurance v Asuncion ('R No. 79907208% 10 Ce"ruary 1989+ *n cases where there is a #iscalculation of the doc@et fees and #ore da#a$es were awarded than that stated in the pleadin$% the "alance on the filin$ fee will constitute a lien on the !ud$#ent for da#a$es. Private respondent clai#s that the rulin$ in 4anchester cannot apply retroactively to the civil action for at the ti#e said civil case was filed in court there was no such 4anchester rulin$ as yet. Curther% private respondent avers that what is applica"le is the rulin$ of this Court in 4a$aspi v. Ra#olete% wherein this Court held that the trial court ac-uired !urisdiction over the case even if the doc@et fee paid was insufficient. he contention that 4anchester cannot apply retroactively to this case is untena"le. Statutes re$ulatin$ the procedure of the courts will "e construed as applica"le to actions pendin$ and undeter#ined at the ti#e of their passa$e. Procedural laws are retrospective in that sense and to that e9tent. 6here the trial court ac-uires !urisdiction over a clai# "y the filin$ of the appropriate pleadin$ and pay#ent of the prescri"ed filin$ fee "ut% su"se-uently% the !ud$#ent awards a clai# not specified in the pleadin$% or if specified the sa#e has "een left for deter#ination "y the court% the additional filin$ fee therefor shall constitute a lien on the !ud$#ent. Are actions for rescission and actions for specific perfor#ance in cases of "reach of contract always action incapa"le of pecuniary esti#ation> Not always. *n cases of "reach of contract% actions for specific perfor#ance are not necessarily incapa"le of pecuniary esti#ation for it depends on the @ind of perfor#ance which the plaintiff de#ands. (action for specific perfor#ance to sin$ in a concert v to pay an outstandin$ "alance on a de"t+. *t is the sa#e with cases of rescission% wherein what is de#anded in return is deter#inative of whether or not the action is incapa"le of pecuniary esti#ation. ,ifferentiate an action for e!ect#ent "ased on forci"le entry or unlawful detainer. accion pu"liciana and accion reinvindicatoria.

An ction &or e*ect'ent arises in case of forci"le entry or unlawful detainer when the action was "rou$ht within one year fro# the ti#e the plaintiff was re#oved fro# lawful possession. An ccion pu%!ici n is an action to clai# ri$htful possession of property of which the owner was effectively dispossessed fro# and with a clai# to ownership. he action arises after a year of the act of effective dispossession of the owner. Jurisdiction is with the Re$ional rial Court. 19a#ple< Possession of the land is due to #ere tolerance of the owner. Accion rein#indic tori or action for recovery of real property has for its o"!ect the recovery of the do#inion over the property as its owner. he #ain issue is ownership and not #erely possession. his is the re#edy availa"le when an action referrin$ to possession has already "een decided. 19a#ple< 6hen a party refuses to deliver the property due to an adverse clai# of ownership.

4 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

III. 7Prescri%ed Jurisdiction8 Jurisdiction over the Su"!ect 4atter 6hat is su"!ect #atter> Su"!ect #atter is the thin$% wron$ful act% contract or property which is directly involved in the action% concernin$ which the wron$ has "een done and with respect to which the controversy has arisen. 6hat are the features of su"!ect #atter !urisdiction> 1. Conferred "y law &. Can "e raised at anyti#e 0. ,eter#ined "y the alle$ations of the case 3. ,eter#ined "y the alle$ations in the pleadin$s and N= the evidence. ;. So#eti#es is territorial. Article )***% S1C *=N &% 1987 Constitution
he Con$ress shall have the power to define% prescri"e% and apportion the !urisdiction of various courts "ut #ay not deprive the Supre#e Court of its !urisdiction over cases enu#erated in Section ; hereof.

2 involves $ricu!tur ! ! nd which is covered "y CARP% hence DARA9 has uesclusive ori$inal !urisdiction Pet D =pposition to the 4otion to ,is#iss 2 not an a$rarian disputeK no tenancy or leasehold relationship *ssue< whether R C or ,ARA: has !urisdiction 7eld< Jurisdiction over the su"!ect #atter is deter#ined "y the !!e$ tions o& t+e co'p! int. *t is not affected "y the pleas set2up "y the defendant in his answer or in a #otion to dis#issK otherwise% !urisdiction would "e dependent on his whi#s. Since alle$ations in the co#plaint show that the dispute involves an action for recovery of possession of land (accion reinvindicatoria+ and does not involve an a$rarian dispute% RTC + s *urisdiction o#er it. here was no denial "y the respondents that the controversy did not involve a tenancy or leasehold a$ree#ent% which is su"!ect to the !urisdiction of the ,ARA: fallin$ under a$ricultural disputes.

7ow is su"!ect #atter !urisdiction deter#ined> As a $eneral rule% the su"!ect #atter !urisdiction of the court is deter#ined "y the alle$ation in the co#plaint. Can su"!ect #atter !urisdiction "e stipulated> No. =ne outstandin$ feature of su"!ect #atter !urisdiction which is stressed is that it is conferred "y the le$islature. Since su"!ect #atter !urisdiction is the e9clusive prero$ative of the le$islature% the parties to an action or proceedin$ cannot stipulate on the #atter as to vest or oust !urisdiction in or fro# the court. PR=:514< A ship#ent of $oods "y sea fro# 7on$ Jon$ to 4anila is covered "y a "ill of ladin$. he consi$nee is unhappy with the ship#ent. 7e "rin$s an action a$ainst the shipper and carrier in 4anila. he stipulation in the contract provides that cases should "e filed in 7J. he defendants filed a 4otion to ,is#iss on the $round that the 4anila court has no !urisdiction. Rule on the #otion. ANS61R< ,enied. Jurisdiction is vested "y law and the parties cannot stipulate otherwise. 7owever% there is a case in Private *nternational 5aw which says that in a #ulti2 state transaction% contractin$ parties #ay stipulate the choice of foru#. Sindico v. ,ia8 Cacts< Pet D Accion Reivindicatoria with preli#inary 4andatory *n!unction with the RTCK the complaint does not allege tenurial relationship ,ef D 4otion to ,is#iss 2 R C has no !urisdiction over the su"!ect #atter

:INDS o& JURISDICTION 1. as to C=)1RA'1 General Jurisdiction Power to ad!udicate all controversies e9cept those e9pressly withheld fro# the plenary powers of the court. Special or Limited Jurisdiction hose which have no power to decide their own !urisdiction

&. as to C='N*LANC1 of a CAS1 Original Power of the court to ta@e !udicial co$ni8ance of a case instituted for !udicial action for the first ti#e under conditions provided "y law Appellate Authority of a court hi$her in ran@ to ree9a#ine the final order or !ud$#ent of a lower court which tried the case now elevated for review.

0. as to C=NCBRR1NC1 with = 71R C=BR S Exclusive Power to ad!udicate a case or proceedin$ to the e9clusion of all other courts at that sta$e Concurrent Power conferred upon different courts% whether of the sa#e or different ran@s% to ta@e co$ni8ance at the sa#e sta$e of the sa#e case in the sa#e or different !udicial territories.

5 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

3. as to SC=P1 Jurisdiction over the Person Jurisdiction ac-uired "y the person "eco#in$ a party to the action or proceedin$ "efore the court either throu$h voluntary appearance or upon service of su##ons or other !udicial process Jurisdiction over the Subject Matter Jurisdiction which pertains to the classes or @inds of actions or proceedin$s which the court is authori8ed to entertain and ad!udicate.

Jurisdiction is the power of the court to hear or entertain an action or proceedin$s and to render a !ud$#ent thereon which will "ind the parties to such action or proceedin$. Distin$uis+ed &ro' e)ercise o& *urisdiction here is a distinction "etween the co#petence of the court to entertain an action (!urisdiction+ and the power to render a !ud$#ent on the #erits (e9ercise of !urisdiction+. 6here there is !urisdiction% the decision of all -uestions arisin$ in the case is "ut an e9ercise of !urisdiction. Distin$uis+ed &ro' #enue )enue deter#ines the -uestion which of several courts in the Philippines havin$ !urisdiction of a case shall ta@e co$ni8ance of it. JBR*S,*C *=N Authority to hear and deter#ine a case 4atter of su"stantive law 1sta"lishes a relation "etween the court and the su"!ect #atter Ci9ed "y law and cannot "e conferred "y the parties )1NB1 Place where the case is to "e heard or tried 4atter of procedural law 1sta"lishes a relation "etween plaintiff and defendant% or petitioner and respondent 4ay "e conferred "y the act or a$ree#ent of the parties.

Classifications of Philippine Courts 1. as to SC=P1 =C 71*R JBR*S,*C *=N General Jurisdiction hose co#petent to decide their own !urisdiction hose co#petent to ta@e co$ni8ance of all @inds of cases% unless otherwise provided "y the law or Rules Special or Limited Jurisdiction hose which have no power to decide their own !urisdiction hose which can only try cases per#itted "y statute.

Nature 5aw of which it is concerned Relationship esta"lished

&. as to J*N, =C JBR*S,*C *=N Original Jurisdiction hose courts% which under the law% action or proceedin$s #ay ori$inally "e co##enced. 0. as to RANJ< Superior Courts Courts which have the power of review or supervision over another and lower court. 3. as to their CR1A *=NK Constitutional Courts hose which owe their creation and e9istence to the Constitution and% therefore cannot "e le$islated out of e9istence or deprived "y law of the !urisdiction and powers un-ualifiedly vested in the# "y the constitution. W+ t is *urisdiction;
of 229

Appellate Jurisdiction Courts which have the power to review on appeal the decisions or orders of a lower court

Creation

Manila Railroad v. Atty.-General
n!erior Courts hose which% in relation to another court% are lower in ran@ and su"!ect to review and supervision "y the latter. Cacts< 7eld< Jurisdiction is assured% whatever the place of its e9ercise. Jurisdiction is the thin$K the place of its e9ercise is its incident. )enue si#ply $rants to the defendant certain ri$hts and privile$es as a$ainst the plaintiff relative to the place of trial. N= 1S< si#ply put% CC* had !urisdiction over the su"!ect #atter% i.e.% e9propriation. )enue has nothin$ to do with !urisdiction over the su"!ect #atter. Sec. 18% :.P. 1&9 he Supre#e Court shall define the territory over which a "ranch of the R C shall e9ercise its authority. he territory thus defined shall "e dee#ed to "e the territorial area of the the "ranch concerned for purposes of deter#inin$ the venue of all suits% proceedin$s or actionsM

Statutor" Courts hose created% or$ani8ed and with !urisdiction e9clusively deter#ined "y law.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

<EN. RULE= Jurisdiction c nnot %e " i#ed Jud$#ent without !urisdiction is #oid. 5ac@ of !urisdiction can "e raised t ny st $e o& t+e proceedin$s, e#en on ppe !. Rule 9% Section 1. ,efenses and o"!ections not pleaded either in a 'otion to dis'iss or in the ns"er are dee#ed waived. 7owever% when it appears fro# the p!e din$s or the e#idence on record that the (1+ court has no !urisdiction over the su"!ect #atter% that there is (&+ another action pendin$ "etween the sa#e parties for the sa#e cause ( litis pendiencia#% or that the (0+ action is "arred "y a prior !ud$#ent or "y (3+ statute of li#itations% the court shall dis#iss the clai#. A""ain v. Chua Co#plaint alle$es the e9istence of landlord2 tenant relationship. Jud$#ent of the Justice of the Peace Court is void% "ecause it has no !urisdiction over cases involvin$ a landlord2tenant relationship. Jurisdiction is with the Court of A$rarian Relations. Since the !ud$#ent of the lower court is void% it can "e attac@ed directly or collaterally even after the ti#e for appeal or review has elapsed. HSuch a !ud$#ent is held to "e a dead li#" on the !udicial tree% which should "e lopped off or wholly disre$arded as the circu#stances #ay re-uire.N E>CEPTION= Jurisdiction %y Estoppe! 'eneral rule is that estoppel does not confer !urisdiction to a court which has none at the onset. $he decision is void until the SC sa"s other%ise& i'e' that estoppel or laches applies to bar attac(s on jurisdiction. (Prof Avena+ S1AC,1C v. N5RC. A case of ille$al dis#issal was "rou$ht a$ainst S1AC,1C% an international or$ani8ation% with the N5RC. =ne of the "asic i##unities of an international or$ani8ation is i##unity fro# local !urisdiction. he invocation of estoppel is not #eritorious in this case "ecause estoppel does not apply to confer !urisdiction to a tri"unal that has none over the cause of action. N= 1< why no estoppel> (1+ )octrine o! mmunit" !rom Suit (&+*##unity was not waivedK In t+eir Ans"er p ! n$, in#o(ed ! c( o& *urisdiction? *n Soliven% acts i#plied waiver (pina$od an$ court+ Soliven v. Castfor#s Phils. Castfor#s cti#e!y p rticip ted in !! st $es of the proceedin$s and invo@ed its authority

"y as@in$ the court for &&ir' ti#e re!ie&. (Citin$ the case of PN=C Shippin$ v. CA+ he rationale "ehind the e9ception of !urisdiction "y estoppel is to prohi"it parties fro# acceptin$ !ud$#ents of court only if favora"le to the#. Jurisdiction c nnot %e t+e su%*ect o& Co'pro'ise Article &/0;% Civil Code No co#pro#ise upon the followin$ -uestion shall "e valid< OOO OOO OOO (;+ he !urisdiction of courts. Retro cti#ity o& L " E)p ndin$ Jurisdiction o& Courts he provisions of this Act shall apply to all civil cases that have not yet reached the pre2trial sta$e. 7owever% %y $ree'ent o& !! t+e p rties % civil cases co$ni8a"le "y the 4 C "y the provisions of this Act #ay "e transferred fro# the R C to the latter. he e9ecutive !ud$e of the appropriate R C shall define the ad#inistrative procedure of transferrin$ the cases affected "y the redefinition of !urisdiction of the 4e C% 4 C% 4C C. (Sec.7% R.A. 7.91 2F a#endin$ :.P.1&9+ Jurisdiction once tt c+ed to court, c nnot %e ousted %y su%se-uent st tute (unless the statute itself so provides+ Southern Coods v. Salas '1N. RB51< =nce the court already o"tained and is e9ercisin$ !urisdiction over a controversy% its !urisdiction is not affected "y new le$islation placin$ !urisdiction over the controversy to another tri"unal. 1OC1P *=N< Bnless the statute itself conferrin$ new !urisdiction e9pressly provides for retroactive effect. Jurisdiction o& @u siAJudici ! 9odies

! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

IV. 7Ac-uired Jurisdiction8 A. =ver the Person O! the Plainti!! Jurisdiction over the person (of the plaintiff+ is conferred "y consent and #ade to depend indirectly at least% on the partyAs own volition. (4anila Railroad v. Atty2'eneral+ O! the )e!endant 1. :y Service of Su##ons. (Rule 13+
2 Cler@ to issue su##ons (Sec.1+ 2 Cor#< directed to defendant% si$ned "y cler@ under seal Contents< (a+ na#e of court and parties ("+ direction that defendant answer within the ti#e fi9ed "y the Rules (c+ notice that unless defendant answers% plaintiff will ta@e !ud$#ent "y default (Sec.&+ 2 Served "y sheriff% deputy% court officer% or for !ustifia"le reasons "y any suita"le person (Sec.0+

&. :y )oluntary Appearance.

T+e de&end ntBs #o!unt ry ppe r nce in t+e ction s+ !! %e e-ui# !ent to ser#ice o& su''ons . he inclusion in a #otion to dis#iss of other $rounds aside fro# lac@ of !urisdiction over the person of the defendant shall not "e dee#ed a voluntary appearance. (Sec. &/% Rule 13+

:oticano v. Chu. Chu voluntarily su"#itted to the courtAs !urisdiction "y (1+ su"#ittin$ pleadin$s to the court and (&+ "y appearin$ in person in court thru his counsel. he defects of the su##ons were cured "y the voluntary appearance of the defendant. 0. )oluntary Su"#ission. Rodri$ue8 v. Ali@pala he olentino spouses% parents of 4rs. Re"ollado% voluntarily su"#itted to the courtAs !urisdiction "y assu#in$ or participatin$ in the defense as co2#ovants with the 4r. and 4rs. Re"ollado% in the #otion for !ud$#ent on a co#pro#ise. :. =ver the Res.
(a+ 6hen the defendant does not reside and is not found in the Philippines% and the action affects the personal status of the plaintiff or relates to% or ("+ the su"!ect of which is% property "it+in t+e P+i!ippines, in "+ic+ t+e de&end nt + s or c! i's !ien or interest, ctu ! or contin$ent % or in "+ic+ t+e re!ie& de' nded consists, "+o!!y or in p rt, in e)c!udin$ t+e de&end nt &ro' ny interest t+erein, or t+e property o& t+e de&end nt + s %een tt c+ed "it+in t+e P+i!ippines% service #ay% "y leave of court% "e effected out of the Philippines "y personal service as under section . or "y pu"lication in a newspaper of $eneral circulation in such places and for such ti#e as the court #ay order% in which case a copy of the su##ons and order of the court shall "e sent "y re$istered #ail to the last @nown address of the defendant% or in any other #anner the court #ay dee# sufficient. Any order $rantin$ such leave shall specify a reasona"le ti#e% which shall not "e less than si9ty (./+ days after notice% within which the defendant #ust answer. (Sec. 1;% Rule 13+

Personal Service or Service in person on defendant.

6henever practica"le% the su##ons shall "e served "y handin$ a copy thereof to the defendant in person% or% if he refuses to receive and si$n for it% "y tenderin$ it to hi#. (Sec. .% Rule 13+

Su"stituted Service.

*f% for !ustifia"le causes% the defendant cannot "e served within a reasona"le ti#e as provided in the precedin$ section% service #ay "e effected (a+ "y leavin$ copies of the su##ons at the de&end ntBs residence with so#e person of suita"le a$e and discretion then residin$ therein% or ("+ "y leavin$ the copies at de&end ntBs o&&ice or re$u! r p! ce o& %usiness with so#e co#petent person in char$e thereof. (Sec.7% Rule 13+

19traterritorial Service and Service "y Pu"lication.
6hen the defendant does not reside and is not found in the Philippines% and the action affects the personal status of the plaintiff or relates to% or the su"!ect of which is% property within the Philippines% in which the defendant has or clai#s a lien or interest% actual or contin$ent% or in which the relief de#anded consists% wholly or in part% in e9cludin$ the defendant fro# any interest therein% or the property of the defendant has "een attached within the Philippines% service #ay% (a+ %y !e #e o& court, %e e&&ected out o& t+e P+i!ippines %y person ! ser#ice s under section 5 or ("+ %y pu%!ic tion in ne"sp per o& $ener ! circu! tion in suc+ p! ces nd &or suc+ ti'e s t+e court ' y order% in which case a copy of the su##ons and order of the court shall "e sent b" registered mail to the last (no%n address o! the de!endant% (c+ or in ny ot+er ' nner t+e court ' y dee' su&&icient. Any order $rantin$ such leave shall specify a reasona"le ti#e% which shall not "e less than si9ty (./+ days after notice% within which the defendant #ust answer. (Sec. 1;% Rule 13+

:anco21spaPol Cilipino v. Palanca *n the foreclosure of real estate #ort$a$e% the court ac-uires !urisdiction over the property since it is found in the Philippines% "ut does not ac-uire !urisdiction over the person since #ort$a$or is a nonresident. After si$nin$ the real estate #ort$a$e% Palanca% owner of the foreclosed real estate% lived thereafter in China and had died there without payin$ his de"t. Conditions &or t+e Forec!osure o& Property o& Nonresident Cort$ $ors= 1. !urisdiction of the court is derived fro# the power which the court possesses over the property. &. !urisdiction over the person is not ac-uired and is not essential.

" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

0. that the relief $ranted "y the court #ust "e li#ited to such as can "e enforced upon the property itself. ,e 4id$ely v. Cerandos. Jurisdiction over de 4id$ely% a resident of Spain% was ac-uired "y her voluntary appearance in court. *f the #otion is for any other purpose than to o"!ect to the !urisdiction of the court over his person% he there"y su"#its to the !urisdiction of the court. *n this case% e9tra2territorial service of su##ons was #ade throu$h the Philippine e#"assy in Spain% he court held that service throu$h the e#"assy can "e enco#passed under e9traterritorial service "y reasona"ly sufficient #eans. An action is one in re# where the direct o"!ect is to reach and dispose of property owned "y the#. (i.e. testa#entary proceedin$ which is an action in re# par e9cellance+ C. =ver the *ssues. Pre2trial =rder.
he proceedin$s in the pre2trial shall "e recorded. Bpon the ter#ination thereof% the court shall issue an order which shall recite in detail the #atters ta@en up in the conference% the action ta@en thereon% the a#end#ents allowed to the pleadin$s% and the a$ree#ents or ad#issions #ade "y the parties as to any of the #atters considered. Should the action proceed to trial% t+e order s+ !! e)p!icit!y de&ine nd !i'it t+e issues to %e tried . T+e contents o& t+e order s+ !! contro! t+e su%se-uent course o& t+e ction % unless #odified "efore trial to prevent #anifest in!ustice. (Sec. 7% Rule 18+

Jurisdiction is ac-uired over the person< a. when there is voluntary appearance ". throu$h the coercive power of le$al process (su##ons+ Jurisdiction over the property is ac-uired< a. when there is actual sei8ure of the property "y the court. ". when there is reco$nition of the power of the court over the property.

A#end#ent to confor# to or authori8e presentation of evidence.

W+en issues not r ised %y t+e p!e din$s re tried "it+ t+e e)press or i'p!ied consent o& t+e p rties, t+ey s+ !! %e tre ted in !! respects s i& t+ey + d %een r ised in t+e p!e din$s. Such a#end#ent of the pleadin$s as #ay "e necessary to cause the# to confor# to the evidence and to raise these issues #ay "e #ade upon #otion of any party at any ti#e% even after !ud$#entK "ut failure to a#end does not affect the result of the trial of these issues. *f evidence is o"!ected to at the trial on the $round that it is not within the issues #ade "y the pleadin$s% the court #ay allow the pleadin$s to "e a#ended and shall do so with li"erality if the presentation of the #erits of the action and the ends of su"stantial !ustice will "e su"served there"y. he court #ay $rant a continuance to ena"le the a#end#ent to "e #ade. (Sec. ;% Rule 1/+

'on8a$a v. CA A party is entitled to such relief consistent with and li#ited to that sou$ht "y the pleadin$s or incidental thereto. 'on8a$a spouses did not include in their prayer that a refund "e $ranted to the# of P9/%/// as a$ainst the third party defendants% 're$orio spouses. 7ow is !urisdiction ac-uired over the person> =ver property>
9 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA within si9ty days fro# the date of its su"#ission for decision or resolution. A case or #atter is dee#ed su"#itted for decision or resolution upon the filin$ of the last pleadin$% "rief% or #e#orandu# re-uired "y the rules of the Co##ission or "y the Co##ission itself. Un!ess ot+er"ise pro#ided %y t+is Constitution or %y ! ", ny decision, order, or ru!in$ o& e c+ Co''ission ' y %e %rou$+t to t+e Supre'e Court on certior ri %y t+e $$rie#ed p rty "it+in t+irty d ys &ro' receipt o& copy t+ereo&. (Sec. 7% Article *O D A% 1987 Constitution+

V. Speci&ic Jurisdiction o& Courts. A. Supre#e Court. 1987 Constitution
he !udicial power shall "e vested in one Supre#e Court and in such lower courts as #ay "e esta"lished "y law. Judicial power includes the duty of the courts of !ustice to settle actual controversies involvin$ ri$hts which are le$ally de#anda"le and enforcea"le% and to deter#ine whether or not there has "een a $rave a"use of discretion a#ountin$ to lac@ or e9cess of !urisdiction on the part of any "ranch or instru#entality of the 'overn#ent. (Article )***% Section 1% 1987 Constitution+ he Con$ress shall have the power to define% prescri"e% and apportion the !urisdiction of the various courts "ut #ay not deprive the Supre#e Court of its !urisdiction over cases enu#erated in Section ; hereof. No law shall "e passed reor$ani8in$ the Judiciary when it under#ines the security of tenure of its 4e#"ers. (Article )***% Section &% 1987 Constitution+ he Supre#e Court shall have the followin$ powers< ./0 19ercise ori$inal !urisdiction over cases affectin$ a#"assadors% other pu"lic #inisters and consuls% and over petitions for certiorari% prohi"ition% #anda#us% -uo warranto% and ha"eas corpus. .10 Review% revise% reverse% #odify% or affir# on appeal or certiorari% as the law or the Rules of Court #ay provide% final !ud$#ents and orders of lower courts in< . 0 All cases in which the constitutionality or validity of any treaty% international or e9ecutive a$ree#ent% law% presidential decree% procla#ation% order% instruction% ordinance% or re$ulation is in -uestion. .%0 All cases involvin$ the le$ality of any ta9% i#post% assess#ent% or toll% or any penalty i#posed in relation thereto. .c0 All cases in which the !urisdiction of any lower court is in issue. .d0 All cri#inal cases in which the penalty i#posed is reclusion perpetua or hi$her. .e0 All cases in which only an error or -uestion of law is involved. .20 Assi$n te#porarily !ud$es of lower courts to other stations as pu"lic interest #ay re-uire. Such te#porary assi$n#ent shall not e9ceed si9 #onths without the consent of the !ud$e concerned. .30 =rder a chan$e of venue or place of trial to avoid a #iscarria$e of !ustice. .40 Pro#ul$ate rules concernin$ the protection and enforce#ent of constitutional ri$hts% pleadin$% practice% and procedure in all courts% the ad#ission to the practice of law% the inte$rated "ar% and le$al assistance to the under2 privile$ed. Such rules shall provide a si#plified and ine9pensive procedure for the speedy disposition of cases% shall "e unifor# for all courts of the sa#e $rade% and shall not di#inish% increase% or #odify su"stantive ri$hts. Rules of procedure of special courts and -uasi2!udicial "odies shall re#ain effective unless disapproved "y the Supre#e Court. .50 Appoint all officials and e#ployees of the Judiciary in accordance with the Civil Service 5aw. (Article )***% Section ;% 1987 Constitution+

Rule 30 HAppeals fro# the Court of a9 Appeals and ?uasi2Judicial A$encies to the Court of Appeals.N ?uestion of 5aw. Br"ano v. Chave8 his involves the participation of the Solicitor 'eneral in two cases involvin$ $overn#ent officials. he issues presented "y "oth the cases are purely -uestions of law. 6hether or not the conclusions of the trial court are in consonance with law and !urisprudence is a -uestion of law. =rti$as v. CA he Court of Appeals was without !urisdiction over the case presented "ecause the appellate !urisdiction over cases involvin$ purely le$al -uestions is e9clusively vested with the Supre#e Court. ?uestions of !urisdiction are purely le$al -uestions. Josefa v. Lhandon$ radin$ Corporation '1N1RA5 RB51< *n a petition for review on certiorari to the Supre#e Court% only -uestions of law #ay "e raised. 1OC1P *=NS< 1. conclusion is $rounded on speculations% sur#ises or con!ectures &. the inference is #anifestly #ista@en% a"surd or i#possi"le 0. there is $rave a"use of discretion 3. the !ud$#ent is "ased on a #isapprehension of facts ;. the findin$s of fact are conflictin$ .. there is no citation of specific evidence on which the factual findin$s are "ased 7. the findin$ of a"sence of facts is contradicted "y the presence of evidence on record. 8. the findin$s of the Court of Appeals are contrary to those of the trial court. 9. the Court of Appeals #anifestly overloo@ed certain relevant and undisputed facts that% if properly considered% would !ustify a different conclusion. 1/. the findin$s of the Court of Appeals are "eyond the issues of the case. 11. such findin$s are contrary to the ad#issions of the parties. Chan$e of )enue.
powers< he Supre#e Court shall have the followin$

Constitutional Co##issions

1ach Co##ission shall decide "y a #a!ority vote of all its 4e#"ers% any case or #atter "rou$ht "efore it

10 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 .30 =rder a chan$e of venue or place of trial to avoid a #iscarria$e of !ustice. (Article )***% Section ;% 1987 Constitution+

JONATHAN PAMPOLINA ccord nce "it+ Ru!e 34 o& t+e Ru!es o& Court. he Supre#e Court shall decide any case on appeal pro#ptly and without the necessity of placin$ it upon the re$ular calendar. 6henever% in any case decided% the death penalty shall have "een i#posed% the records shall "e forwarded to the Supre#e Court% whether the accused shall have appealed or not% for review and !ud$#ent% as law and !ustice shall dictate. Cinal !ud$#ents and orders of the Sandi$an"ayan shall "e e9ecuted and enforced in the #anner provided "y law.

People v. Sola. his was a petition for a chan$e of venue filed in the Supre#e Court. he Supre#e Court is $ranted the constitutional power to order a chan$e of venue to avoid a #iscarria$e of !ustice. *n this case% the witnesses to the cri#inal case a$ainst Pa"lo Sola were not at li"erty to reveal what they @now. 9ATAS PAC9ANSA 9L<. /1D (Judiciary Reor$ani8ation Act of 198/+

:. Court of Appeals 9ATAS PAC9ANSA 9L<. /1D (Judiciary Reor$ani8ation Act of 198/+
S1C *=N 9. Jurisdiction. he *nter#ediate Appellate Court shall e9ercise< (1+ Ori$in ! *urisdiction to issue writs of #anda#us% prohi"ition% certiorari% ha"eas corpus% and -uo warranto% and au9iliary writs or processes% whether or not in aid of its appellate !urisdictionK (&+ E)c!usi#e ori$in ! *urisdiction over actions for annul#ent of !ud$#ents of Re$ional rial CourtsK and (0+ E)c!usi#e ppe!! te *urisdiction over all final !ud$#ents% decisions% resolutions% orders% or awards of Re$ional rial Courts and -uasi2!udicial a$encies% instru#entalities% "oards or co##issions% includin$ the Securities and 19chan$e Co##ission% the Social Security Co##ission% the 1d#ployees Co#pensation Co##ision% and the Civil Service Co##ission% e9cept those fallin$ within the appellate !urisdiction of the Supre#e Court in accordance with the Constitution% the 5a"or Code of the Phils. under P.,. No.33&% as a#ended% the provisions of this Act% and of su"para$raph (1+ of the third para$raph and su"para$raph (3+ of the fourth para$raph of Section 17 of the Judiciary Act of 1938. he Court of Appeals shall have the power< a. to try cases and conduct hearin$s% ". to receive evidence and c. to perfor# any and all acts necessary to resolve factual issues raised in cases fallin$ within its ori$inal and appellate !urisdiction% includin$ the power to $rant and conduct new trials or further proceedin$s. rials and hearin$s #ust "e continuous and #ust "e co#pleted within three (0+ #onths% unless e9tended "y the Chief Justice.

S1C *=N 9. Jurisdiction. he *nter#ediate Appellate Court shall e9ercise< (1+ =ri$inal !urisdiction to issue writs of #anda#us% prohi"ition% certiorari% ha"eas corpus% and -uo warranto% and au9iliary writs or processes% whether or not in aid of its appellate !urisdictionK (&+ 19clusive ori$inal !urisdiction over actions for annul#ent of !ud$#ents of Re$ional rial CourtsK and (0+ 19clusive appellate !urisdiction over all final !ud$#ents% decisions% resolutions% orders% or awards of Re$ional rial Courts and -uasi2!udicial a$encies% instru#entalities% "oards or co##issions% inc!udin$ t+e Securities nd E)c+ n$e Co''ission, t+e Soci ! Security Co''ission, t+e Ed'p!oyees Co'pens tion Co''ision, nd t+e Ci#i! Ser#ice Co''ission, e9cept those fallin$ within the appellate !urisdiction of the Supre#e Court in accordance with the Constitution% t+e L %or Code o& t+e P+i!s. under P.D. No.331, s 'ended, the provisions of this Act% and of su"para$raph (1+ of the third para$raph and su"para$raph (3+ of the fourth para$raph of Section 17 of the Judiciary Act of 1938. he Court of Appeals shall have the power to try cases and conduct hearin$s% receive evidence and perfor# any and all acts necessary to resolve factual issues raised in cases fallin$ within its ori$inal and appellate !urisdiction% includin$ the power to $rant and conduct new trials or further proceedin$s. Tri !s nd +e rin$s 'ust %e continuous nd 'ust %e co'p!eted "it+in t+ree .20 'ont+s, un!ess e)tended %y t+e C+ie& Justice. Q hese provisions shall not apply to decisions and interlocutory orders issued under the 5a"or Code of the Philippines and "y the Central :oard of Assess#ent Appeals.RS Ste9t in "old and HQ RN are a#end#ents inserted and re#oved "y
RA79/&

Ru!e 32 7Appe !s &ro' t+e Court o& T ) Appe !s nd @u siAJudici ! A$encies to t+e Court o& Appe !s.8 PD 331, s Labor Code 'ended %y RA 5E/4

R1)*S*N' PR1S*,1N *A5 ,1CR11 N=. 138. CR1A *N' A SP1C*A5 C=BR = :1 JN=6N AS ISAN,*'AN:AGANI AN, C=R = 71R PBRP=S1S (P, 1./.+
S1C *=N 7. Cor#% finality and enforce#ent of decisions. ,ecisions and final orders of the Sandi$an"ayan shall contain co#plete findin$s of facts on all issues properly raised "efore it. A petition for reconsideration of any final order or decision #ay "e filed within (1;+ days fro# pro#ul$ation or notice of the final order or !ud$#ent% and such petition for reconsideration shall "e decided within thirty (0/+ days fro# su"#ission thereon. Decisions nd &in ! orders s+ !! %e su%*ect to re#ie" on certior ri %y t+e Supre'e Court in

St. 4artinAs Cuneral 7o#e v. N5RC. Bnder Rule .; (petitions for certiorari+% appeals fro# the decisions of the N5RC #ust first "e "rou$ht to the CA "efore SC hears it. SC Reso!ution A.C. No. DDA1A6/ QA.4. N=. 992&2/12SC. Ce"ruary 9% 1999.R IN RE= DISCISSAL OF SPECIAL CIVIL ACTIONS IN NLRC CASES< National 5a"or Relations Co##ission% ,is#issal of Special Civil Action *n li$ht of the decision in St. 4artin Cuneral 7o#es v. N5RC ('.R. No. 10/8..% 1. Septe#"er

11 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA upon 4etropolitan rial Courts% 4unicipal rial Courts% and 4unicipal Circuit rial CourtsK (0+ *n all actions in ad#iralty and #ariti#e !urisdiction where the de#and or clai# e9ceeds twenty thousand pesos (P&/%///.//+K (3+ *n all #atters of pro"ate% "oth testate and intestate% where the $ross value of the estate e9ceeds twenty thousand pesos (P&/%///.//+K (;+ *n all actions involvin$ the contract of #arria$e and #arital relationsK (.+ *n all cases not within the e9clusive !urisdiction of any court% tri"unal% person or "ody e9ercisin$ !udicial or -uasi2!udicial functionsK (7+ *n all civil actions and special proceedin$s fallin$ within the e9clusive ori$inal !urisdiction of a Juvenile and ,o#estic Relations Court and of the Courts of A$rarian Relations as now provided "y lawK and (8+ *n all other cases in which the de#and% e9clusive of interest and costs or the value of the property in controversy% a#ounts to #ore than twenty thousand pesos (P&/%///.//+.

1998+% !! speci ! ci#i! ctions risin$ out o& ny decision or &in ! reso!ution or order o& t+e N tion ! L %or Re! tions Co''ission &i!ed "it+ t+e Court &ter 6/ June /DDD s+ !! no !on$er %e re&erred to t+e Court o& Appe !s, %ut s+ !! &ort+"it+ %e DISCISSED. 5et this resolution "e pu"lished in two newspapers of $eneral circulation in the Philippines and copies thereof furnished the *nte$rated :ar of the Philippines and the National 5a"or Relations Co##ission. SC Reso!ution A.C. No. 66A1A62 . 'endin$ Ru!e 54, Sec.30 QA.4. No. //2&2/02SC. Septe#"er 1% &///.R FURTFER ACENDIN< SECTION 3, RULE 54 OF TFE RULES OF CIVIL PROCEDURE R1S=5B *=N :1 * R1S=5)1,% AS * *S 71R1:G R1S=5)1,% to further a#end Section 3% Rule .;% of the 1997 Rules of Civil Procedure% as a#ended "y the Resolution of July &1% 1998% so as to read as follows<

S1C *=N 3. 6hen and where petition filed. he petition shall "e filed not later than si9ty (./+ days fro# notice of the !ud$#ent% order or resolution. *n case a #otion for reconsideration or new trial is ti#ely filed% whether such #otion is re-uired or not% the si9ty (./+ day period shall "e counted fro# notice of the denial of said #otion. he petition shall "e filed in the Supre#e Court% or% if it relates to the acts or o#issions of a lower court or of a corporation% "oard% officer or person% in the Re$ional rial Court e9ercisin$ !urisdiction over the territorial area as defined "y the Supre#e Court. It ' y !so %e &i!ed in t+e Court o& Appe !s "+et+er or not t+e s 'e is in id o& its ppe!! te *urisdiction % or in the Sandi$an"ayan if it is in aid of its appellate !urisdiction. *f it involves the acts or o#issions of a -uasi !udicial a$ency% unless otherwise provided "y law or these rules% the petition shall "e filed in and co$ni8a"le only "y the Court of Appeals. No e9tension of ti#e to file the petition shall "e $ranted e9cept for co#pellin$ reason and in no case e9ceedin$ fifteen (1;+ days. (3a+ his resolution shall ta@e effect on Septe#"er 1% &///% followin$ its pu"lication in two (&+ newspapers of $eneral circulation.

REPU9LIC ACT NO. E5D/ (AN AC 1OPAN,*N' 71 JBR*S,*C *=N =C 71 41 R=P=5* AN R*A5 C=BR S% 4BN*C*PA5 R*A5 C=BR S% AN, 4BN*C*PA5 C*RCB* R*A5 C=BR S% A41N,*N' C=R 71 PBRP=S1 :A AS PA4:ANSA% :5'. 1&9% = 71R6*S1 JN=6N AS 71 IJB,*C*ARG R1=R'AN*LA *=N AC =C 198/I+ S1C *=N 1. Section 19 of :atas Pa#"ansa :l$. 1&9% otherwise @nown as the IJudiciary Reor$ani8ation Act of 198/I% is here"y a#ended to read as follows<

C. Re$ional rial Court Ordinar" Civil amended# Actions *Sec' +,& -P +.,& as

9ATAS PAC9ANSA 9L<. /1D (Judiciary Reor$ani8ation Act of 198/+
S1C *=N 19. Jurisdiction in civil cases. Re$ional rial Courts shall e9ercise e9clusive ori$inal !urisdiction< (1+ *n all civil actions in which the su"!ect of the liti$ation is incapa"le of pecuniary esti#ationK (&+ *n all civil actions which involve the title to% or possession of% real property% or any interest therein% e9cept actions for forci"le entry into and unlawful detainer of lands or "uildin$s% ori$inal !urisdiction over which is conferred
#

ISec. 19. Jurisdiction in civil cases. Re$ional rial Courts shall e9ercise e9clusive ori$inal !urisdiction. I(1+ *n all civil actions in which the su"!ect of the liti$ation is incapa"le of pecuniary esti#ationK I(&+ *n all civil actions which involve the title to% or possession of% real property% or any interest therein% "+ere t+e ssessed # !ue o& t+e property in#o!#ed e)ceeds T"enty t+ous nd pesos .P16,666,660 or, &or ci#i! ctions in Cetro C ni! , "+ere suc+ # !ue e)ceeds Fi&ty t+ous nd pesos .P46,666.660∗ e9cept actions for forci"le entry into and unlawful detainer of lands or "uildin$s% ori$inal !urisdiction over which is conferred upon the 4etropolitan rial Courts% 4unicipal rial Courts% and 4unicipal Circuit rial CourtsK I(0+ *n all actions in ad#iralty and #ariti#e !urisdiction where the de#and or clai# e)ceeds One +undred t+ous nd pesos .P/66,666.660 or, in Cetro C ni! , "+ere suc+ de' nd or c! i' e)ceeds T"o +undred t+ous nd pesos .P166,666.660K I(3+ *n all #atters of pro"ate% "oth testate and intestate% "+ere t+e $ross # !ue o& t+e est te e)ceeds One +undred t+ous nd pesos .P/66,666.660 or, in pro% te ' tters in Cetro C ni! , "+ere suc+ $ross # !ue e)ceeds T"o Fundred t+ous nd pesos .P166,666.660G I(;+ *n all actions involvin$ the contract of #arria$e and #arital relationsK I(.+ *n all cases not within the e9clusive !urisdiction of any court% tri"unal% person or "ody e9ercisin$ !urisdiction of any court% tri"unal% person or "ody e9ercisin$ !udicial or -uasi2!udicial functionsK

$o%& '()' *(+*(,(-', '.( /.0-1(, f*o2 '.( +*3o* %045 E2+.0,3, 3, 26 o4-5

12 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 I(7+ *n all civil actions and special proceedin$s fallin$ within the e9clusive ori$inal !urisdiction of a Juvenile and ,o#estic Relations Court and of the Court of A$rarian Relations as now provided "y lawK and I(8+ *n all other cases in which the de#and% e9clusive of interest% da#a$es of whatever @ind% attorneyTs fees% liti$ation e9penses% and costs or the value of the property in controversy e)ceeds One +undred t+ous nd pesos .P/66,666.660 or, in suc+ ot+er c ses in Cetro C ni! , "+ere t+e de' nd e)c!usi#e o& t+e %o#e'entioned ite's e)ceeds T"o Fundred t+ous nd pesos .P166,666.660.H

JONATHAN PAMPOLINA (&+ *n ctions &&ectin$ '% ss dors ot+er pu%!ic 'inisters nd consu!s . nd

Exclusive Appellate Jurisdiction' *Sec' ..& -P +.,# 9ATAS PAC9ANSA 9L<. /1D (Judiciary Reor$ani8ation Act of 198/+
S1C *=N &&. Appellate !urisdiction. Re$ional rial Courts shall e9ercise appellate !urisdiction o#er !! c ses decided %y Cetropo!it n Tri ! Courts, Cunicip ! Tri ! Courts, nd Cunicip ! Circuit Tri ! Courts in t+eir respecti#e territori ! *urisdictions. Such cases shall "e decided on the "asis of the entire record of the proceedin$s had in the court of ori$in and such #e#oranda andVor "riefs as #ay "e su"#itted "y the parties or re-uired "y the Re$ional rial Courts. he decision of the Re$ional rial Courts in such cases shall "e appeala"le "y petition for review to the *nter#ediate Appellate Court which #ay $ive it due course only when the petition shows pri#a facie that the lower court has co##itted an error of fact or law that will warrant a reversal or #odification of the decision or !ud$#ent sou$ht to "e reviewed.

6hat are the new !urisdictional a#ounts "ased on RA 7.91> :ased on Section ;% RA 7.91 which "eca#e effective in April 1993% the !urisdictional a#ounts are the followin$< Period Bpon enact#ent of RA 7.91 April 99 D April /3 (five years after effectivity of RA 7.91+ April /3 to present =utside of 4etro 4anila P 1//%///.// P &//%///.// *n 4etro 4anila P &//%///.// P 3//%///.//

Special Jurisdiction *Sec' .0& -P +.,# 9ATAS PAC9ANSA 9L<. /1D (Judiciary Reor$ani8ation Act of 198/+
S1C *=N &0. Special !urisdiction to try special cases. he Supre#e Court #ay desi$nate certain "ranches of the Re$ional rial Courts to handle e9clusively cri#inal cases% !uvenile and do#estic relations cases% a$rarian cases% ur"an land refor# cases which do not fall under the !urisdiction of -uasi2!udicial "odies and a$encies% andVor such other special cases as the Supre#e Court #ay deter#ine in the interest of a speedy and efficient ad#inistration of !ustice.

P 0//%///.//

P 3//%///.//

:ut these ad!usted !urisdictional a#ounts shall only apply to the followin$ instances delineatin$ the !urisdictional a#ounts for the R C and 4 C. 1. ad#iralty and #ariti#e actions. &. pro"ate proceedin$s 0. in all other cases not involvin$ real property. he !urisdictional a#ount with respect to all civil actions which involve title to% or possession of real property and any interest therein still re#ains the sa#e ( P;/%/// for civil actions in 4etro 4anila and P&/%/// outside of 4etro 4anila.+ Special Civil Actions and the Special Proceeding o! /abeas Corpus *Sec' .+& -P +.,# 9ATAS PAC9ANSA 9L<. /1D (Judiciary Reor$ani8ation Act of 198/+
S1C *=N &1. =ri$inal !urisdiction in other cases. U Re$ional rial Courts shall e9ercise ori$inal !urisdiction< (1+ *n the issuance of writs of certiorari% prohi"ition% #anda#us% -uo warranto% ha"eas corpus and in!unction which #ay "e enforced in any part of their respective re$ionsK and (&+ *n actions affectin$ a#"assadors and other pu"lic #inisters and consuls. S1C *=N &1. =ri$inal !urisdiction in other cases Re$ional rial Courts shall e9ercise ori$inal !urisdiction< (1+ *n the issuance of writs of certior ri, pro+i%ition, ' nd 'us, -uo " rr nto, + %e s corpus nd in*unction which #ay "e enforced in any part of their respective re$ionsK and

Rule 1% Sec.3 (N*C15+

hese Rules shall not apply to election cases% land re$istration% cadastral% naturali8ation and insolvency proceedin$s% and other cases not herein provided for% e9cept "y analo$y or in a suppletory character and whenever practica"le and convenient.

Rule 130 Applica"ility of the Rules
hese Rules shall not apply to land re$istration% cadastral% and election cases% naturali8ation and insolvency proceedin$s% and other cases not herein provided for% e9cept "y analo$y or in a suppletory character and whenever practica"le and convenient.

SC Ad'inistr ti#e Circu! r No. 6DAD3 SBPR141 C=BR A,4*N*S RA *)1 C*RCB5AR N=. /9293 SB:J1C < Guidelines in the mplementation o! 1epublic Act 2o' 34,+& Entitled 5An Act Expanding the Jurisdiction o! the Metropolitan $rial Courts& Municipal $rial Courts and Municipal Circuit $rial Courts& Amending !or the Purpose -atas Pambansa -lg' +.,& other%ise (no%n as the Judiciar" 1eorgani6ation Act o! +,785 =< $he Court o! Appeals& Sandiganba"an& 1egional $rial Courts& Metropolitan $rial Courts& Municipal

13 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

$rial Courts& Municipal Circuit $rial Courts& All Members o! the Government Prosecution Service and All Members o! the ntegrated -ar o! the Philippines

C: v. CA

Cor the $uidance of the :ench and at the :ar% the followin$ $uidelines are to "e followed in the i#ple#entation of Repu"lic Act No. 7.91% entitled IAn Act 19pandin$ the Jurisdiction of the 4etropolitan rial Courts% 4unicipal rial Courts% and 4unicipal Circuit rial Courts% A#endin$ for the Purpose :atas Pa#"ansa :l$. 1&9% =therwise Jnown as the Judiciary Reor$ani8ation Act of 198/I< 1. he new !urisdiction of the Re$ional rial Courts% 4etropolitan rial Courts% 4unicipal rial Courts% and 4unicipal Circuit rial Courts in civil and ori$inal cases% and in cadastral and land re$istration cases% under Sections 19% 0&% 00% and 03 of :.P. :l$. 1&9% as a#ended "y R.A. No. 7.91% " s e&&ecti#e on Apri! /4, /DD3, &i&teen ./40 d ys &ter pu%!ic tion in t+e C ! y nd in t+e Ti'es Journ ! on C rc+ 26, /DD3 pursu nt to Section I o& R.A. No. E5D/. &. he e9clusion of the ter# Hd ' $es o& "+ te#er (indH in deter#inin$ the !urisdictional a#ount under Section 19 (8+ and Section 00 (1+ of :.P. :l$. 1&9% as a#ended "y R.A. No. 7.91% pp!ies to c ses "+ere t+e d ' $es re 'ere!y incident ! to or conse-uence o& t+e ' in c use o& ction. 7owever% in cases where the clai# for da#a$es is the #ain cause of action% or one of the causes of action% the a#ount of such clai# shall "e considered in deter#inin$ the !urisdiction of the court. 0. he cri#inal !urisdiction of the 4etropolitan rial Courts% 4unicipal rial Courts% and 4unicipal Circuit rial Courts under Section 0& (&+ of :.P. :l$. 1&9% as a#ended "y R.A. No. 7.91% has "een increased to cover offenses punisha"le with i#prison#ent not e9ceedin$ si9 (.+ years irrespective of the a#ount of the fine. As a conse-uence% the Re$ional rial Courts have no #ore ori$inal !urisdiction over offenses co##itted "y pu"lic officers and e#ployees in relation to their office% where the offense is punisha"le "y #ore than four (3+ years and two (&+ #onths up to si9 (.+ years. 3. he provisions of Section 0& (&+ of :.P. :l$. 1&9% as a#ended "y R.A. No. 7.91% apply only to offenses punisha"le "y i#prison#ent or fine% or "oth% in which cases the a#ount of the fine is disre$arded in deter#inin$ the !urisdiction of the court. 7owever% in cases where the only penalty provided "y law is a fine% the a#ount thereof shall deter#ine the !urisdiction of the court in accordance with the ori$inal provisions of Section 0& (&+ of :.P. :l$. 1&9 which fi9ed the ori$inal e9clusive !urisdiction of the 4etropolitan rial Courts% 4unicipal rial Courts% and 4unicipal Circuit rial Courts over offenses punisha"le with a fine of not #ore than a four thousand pesos% the Re$ional rial Courts shall have !urisdiction% includin$ offenses co##itted "y pu"lic officers and e#ployees in relation to their office% where the a#ount of the fine does not e9ceed si9 thousand pesos. 7owever% this rule does not apply to offenses involvin$ da#a$e to property throu$h cri#inal ne$li$ence which are under the e9clusive ori$inal !urisdiction of the 4etropolitan rial Courts% 4unicipal rial Courts% and 4unicipal Circuit rial Courts% irrespective of the a#ount of the i#posa"le fine. 4anila% June 13% 1993.

his was the case of the P1/& doc@et fee. 1ven if the a#ount of da#a$es is not in the prayer% the doc@et fees shall "e assessed if the a#ount prayed for is in the "ody of the co#plaint. Ascue v. CA 6here the thin$ sou$ht to "e deposited or consi$ned is a su# of #oney% the a#ount of the de"t due is deter#ina"le and capa"le of pecuniary esti#ation. Ne$re v. Ca"ahu$ Shippin$ All ad#iralty and #ariti#e cases fall under the !urisdiction of the CC*% irrespective of the a#ount or value of the $oods involved. (Judiciary Act% Sec. 33+ CVf :P 1&9 Sec.19 (0+% as a#ended "y RA 7.91 D he present law places a peso li#it under which the R C can e9ercise !urisdiction over ad#iralty and #ariti#e cases. :aito v. Sar#iento An action for support falls under the !urisdiction of the CC* for "ein$ incapa"le of pecuniary esti#ation. he followin$ are factors that deter#ine support< a#ount to "e $iven% relation of the parties% ri$ht to support created "y that relation% needs of the clai#ant and financial resources of the person fro# who# support is sou$ht. ,. 4etropolitan% 4unicipal and 4unicipal Circuit Courts (4e C% 4 C% 4C C+ Rule ;% Sec. &
he ter# I4unicipal rial CourtsI as used in these Rules shall include 4etropolitan rial Courts% 4unicipal rial Courts in Cities% 4unicipal rial Courts% and 4unicipal Circuit rial Courts.

rial

9P /1D Sec. 14 J 2/,

s

'ended %y RA E5D/

9ATAS PAC9ANSA 9L<. /1D (Judiciary Reor$ani8ation Act of 198/+
C7AP 1R *** 4etropolitan rial Courts% 4unicipal 4unicipal Circuit rial Courts rial Courts% and

S1C *=N &;. 1sta"lish#ent of 4etropolitan rial Courts% 4unicipal rial Courts and 4unicipal Circuit rial Courts. here shall "e created a 4etropolitan rial Court in each #etropolitan area esta"lished "y law% a 4unicipal rial Court in each of the other cities or #unicipalities% and a 4unicipal Circuit rial Court in each circuit co#prisin$ such cities andVor #unicipalities as are $rouped to$ether pursuant to law. S1C *=N &.. ?ualifications. No person shall "e appointed !ud$e of a 4etropolitan rial Court% 4unicipal rial Court% or 4unicipal Circuit rial Court unless he is a natural2"orn citi8en of the Philippines% at least 0/ years of a$e% and% for at least five years% has "een en$a$ed in the practice of law in the

SC Circu! r No. 6DAD3 ransfer to R C fro# 4 C of cases within the !urisdiction of Ca#ily Courts under RA 80.9 (Ca#ily Courts Act of 1997+

14 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 Philippines% or has held a pu"lic office in the Philippines re-uirin$ ad#ission to the practice of law as an indispensa"le re-uisite. S1C *=N &7. 4etropolitan rial Courts of the National Capital Re$ion. here shall "e a 4etropolitan rial Court in the National Capital Re$ion% to "e @nown as the 4etropolitan rial Court of 4etro 4anila% which shall "e co#posed of ei$hty2two (8&+ "ranches. here shall "e< (list of "ranches o#itted+ S1C *=N &8. =ther 4etropolitan rial Courts. he Supre#e Court shall constitute 4etropolitan rial Courts in such other #etropolitan areas as #ay "e esta"lished "y law whose territorial !urisdiction shall "e co2 e9tensive with the cities and #unicipalities co#prisin$ the #etropolitan area. 1very 4etropolitan rial Jud$e shall "e appointed to a #etropolitan area which shall "e his per#anent station and his appoint#ent shall state "ranch of the court and the seat thereof to which he shall "e ori$inally assi$ned. A 4etropolitan rial Jud$e #ay "e assi$ned "y the Supre#e Court to any "ranch within said #etropolitan area as the interest of !ustice #ay re-uire% and such assi$n#ent shall not "e dee#ed an assi$n#ent to another station within the #eanin$ of this section. S1C *=N &9. 4unicipal rial Courts in cities. *n every city which does not for# part of a #etropolitan area% there shall "e a 4unicipal rial Court with one "ranch% e9cept as hereunder provided< (list of "ranches o#itted+ S1C *=N 01. 4unicipal Circuit rial Courts. here shall "e a 4unicipal Circuit rial Court in each area defined as a #unicipal circuit% co#prisin$ one or #ore cities andVor one or #ore #unicipalities. he #unicipalities co#prisin$ #unicipal circuits as or$ani8ed under Ad#inistrative =rder No. 00% issued on June 10% 1978 "y the Supre#e Court pursuant to Presidential ,ecree No. ;07% are here"y constituted as #unicipal circuits for purposes of the esta"lish#ent of the 4unicipal Circuit rial Courts% and the appoint#ents thereto of 4unicipal Circuit rial Jud$es< Provided% however% hat the Supre#e Court #ay% as the interests of !ustice #ay re-uire% further reor$ani8e the said courts ta@in$ into account wor@load% $eo$raphical location% and such other factors as will contri"ute to a rational allocation thereof% pursuant to the provisions of Presidential ,ecree No. ;07 which shall "e applica"le insofar as they are not inconsistent with this Act. 1very 4unicipal Circuit rial Jud$e shall "e appointed to a #unicipal circuit which shall "e his official station. he Supre#e Court shall deter#ine the city or #unicipality where the 4unicipal Circuit rial Court shall hold sessions.

JONATHAN PAMPOLINA 671R1AS% there are at present 1%333 #unicipal courts e9clusive of city courts in the inferior courts level all over the countryK 671R1AS% a nu#"er of these #unicipal courts did not receive a sin$le case for investi$ation or trial durin$ Ciscal Gear 19712197& and a still #uch "i$$er nu#"er received not #ore than ./ cases durin$ the said periodK 671R1AS% these #unicipal courts #ay "e constituted into #unicipal circuit courts each co#prisin$ two or #ore #unicipalities without detri#ent to the ad#inistration of !usticeK 671R1AS% the constitution of #unicipal circuit courts will #ean su"stantial savin$s in pu"lic funds which can "e profita"ly utili8ed for carryin$ out vital pro!ects of the national $overn#ent. N=6% 71R1C=R1% *% C1R,*NAN, 1. 4ARC=S% President of the Philippines% "y virtue of the powers vested in #e "y the Constitution% do here"y decree and order that #unicipal circuit courts "e constituted and or$ani8ed out of the present #unicipal courts of the 5and under and in accordance with the followin$ conditions and criteria< 1. he capital of a province shall not "e $rouped with any other #unicipality e9cept in the third% fourth% fifth% si9th and seventh class provinces. &. he #unicipalities to "e constituted under a #unicipal circuit court shall% as #uch as possi"le% "e conti$uous to each other. 0. he circuit !ud$e shall have his official station in a #unicipality within the circuit which shall "e as centrally located and easily accessi"le as possi"le fro# the other #unicipalities co#prisin$ the circuit. 3. he !urisdiction of #unicipal circuit courts of which the capital of a province or su"2province is a part shall "e the sa#e as that of the #unicipal courts of provincial capitals% while the !urisdiction of other #unicipal circuit courts shall "e the sa#e as that of ordinary #unicipal courts under e9istin$ law. ;. All cases arisin$ within the circuit shall "e tried at the official station of the circuit !ud$eK Provided% however% that whenever the nu#"er of cases or the interest of the ad#inistration of !ustice re-uires it% the Supre#e Court #ay authori8e the circuit !ud$e to hold session outside his official station "ut within the circuit. .. he #unicipal circuit courts shall "e courts of record. All proceedin$s therein shall "e recorded% and appeals fro# their !ud$#ents shall "e ta@en and prosecuted in accordance with the procedure prescri"e under e9istin$ law and rules. 7. he Supre#e Court shall carry out the provisions of this decree throu$h i#ple#entin$ orders% on a province2to2 province "asis. RANS* =RG PR=)*S*=NS 15 of 229

Ad'inistr ti#e Order No. 22
Presidenti ! Decree No. 42E PR1S*,1N *A5 ,1CR11 No. ;07 Au$ust 1&% 1973 C=NS * B *N' 4BN*C*PA5 C=BR S *N = 4BN*C*PA5 C*RCB* C=BR S

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 1. Pendin$ the issuance "y the Supre#e Court of the i#ple#entin$ orders herein a"ove authori8ed% the #unicipal courts shall continue to function as presently constituted and or$ani8ed. &. he #ost senior in point of service in the !udiciary a#on$ the #unicipal !ud$es of the #unicipalities constituted into a circuit court shall "e retained as #unicipal circuit !ud$e% unless the Supre#e Court% in the interest of a "etter ad#inistration of !ustice% dee#s it necessary to consider other factors. he !ud$e who is retained shall% with the approval of the Supre#e Court% appoint a cler@ of court% two steno$raphers% a cler@2 interpreter% and such other personnel as #ay "e provided "y law% $ivin$ preference to the -ualified personnel of the #unicipal courts co#prisin$ the circuit. Cor this purpose% the Chief Justice is here"y authori8ed% within the li#its of appropriations authori8ed for the 4unicipal Courts% to created additional positions% to #a@e chan$es in the assi$n#ent of personnel% and to effect such reor$ani8ation as #ay"e necessary. 0. Bpon the issuance of the i#ple#entin$ orders "y the Supre#e Court% the #unicipal circuit courts constituted thereunder shall co##ence to e9ist. he #unicipal courts or$ani8ed into the circuit shall "e dee#ed auto#atically a"olished% and the incu#"ent #unicipal !ud$es not desi$nated to continue as circuit !ud$es shall cease to hold office. 3. 4unicipal !ud$es and su"ordinate e#ployees who shall "e separated fro# office "y reason of this decree shall "e entitled% in addition to the #oney value of their accu#ulated leave credits% a $ratuity e-uivalent to one #onth salary for every year of service rendered "ut not e9ceedin$ twelve #onths on the "asis of the hi$hest salary received% char$ea"le a$ainst savin$s in appropriations for the courtsK Provided% if said !ud$es and e#ployees are entitled to $ratuity or pension under any retire#ent law% they shall select either the $ratuity or pension under said retire#ent law or the $ratuity provided for in this decree. ;. All cases pendin$ in the #unicipal courts constituted and or$ani8ed into a circuit shall "e transferred to the proper #unicipal circuit court and shall "e tried and decided therein. .. his decree shall not apply to city courts in chartered cities. *f a chartered city is reverted to a #unicipality% such #unicipality shall "e $rouped with other #unicipalities constituted under a #unicipal circuit court. his ,ecree shall ta@e effect i##ediately. ,one in the City of 4anila% this 1&th day of Au$ust% in the year of =ur 5ord% nineteen hundred and seventy2four.

JONATHAN PAMPOLINA

9P /1D, Sec. 22 ./0, ! st pro#iso, %y RA E5D/

s

'ended

Sec. 00. Jurisdiction of 4etropolitan rial Courts% 4unicipal rial Courts and 4unicipal Circuit rial Courts in Civil Cases. 4etropolitan rial Courts% 4unicipal rial Courts% and 4unicipal Circuit rial Courts shall e9ercise< (1+ 19clusive ori$inal !urisdiction over civil actions and pro"ate proceedin$s% testate and intestate% includin$ the $rant of provisional re#edies in proper cases% where the value of the personal property% estate% or a#ount of the de#and does not e9ceed =ne hundred thousand pesos (P1//%///.//+ or% in 4etro 4anila where such personal property% estate% or a#ount of the de#and does not e9ceed wo hundred thousand pesos (P&//%///.//+% e9clusive of interest% da#a$es of whatever @ind% attorneyTs fees% liti$ation e9penses% and costs% the a#ount of which #ust "e specifically alle$ed< Provided% hat interest, d ' $es o& "+ te#er (ind, ttorneyBs &ees, !iti$ tion e)penses, nd costs s+ !! %e inc!uded in t+e deter'in tion o& t+e &i!in$ &ees< Provided% further% hat where there are several clai#s or causes of actions "etween the sa#e or different parties% e#"odied in the sa#e co#plaint% t+e 'ount o& t+e de' nd s+ !! %e t+e tot !ity o& t+e c! i's in !! t+e c uses o& ction, irrespecti#e o& "+et+er t+e c uses o& ction rose out o& t+e s 'e or di&&erent tr ns ctionsK

SC Ad'inistr ti#e Circu! r No 6DAD3 (supra+ &. in Corci"le 1ntry and Bnlawful ,etainer cases 9P /1D, Sec. 22 .10,
Sec. 00. Jurisdiction of 4etropolitan rial Courts% 4unicipal rial Courts and 4unicipal Circuit rial Courts in Civil Cases. 4etropolitan rial Courts% 4unicipal rial Courts% and 4unicipal Circuit rial Courts shall e9ercise< (&+ 19clusive ori$inal !urisdiction over cases of forci"le entry and unlawful detainer< Provided% hat when% in such cases% the defendant raises the -uestions o& o"ners+ip in his pleadin$s and the -uestion of possession cannot "e resolved without decidin$ the issue of ownership% the issue of ownership shall "e resolved only to deter#ine the issue of possessionK

s

'ended %y RA E5D/

5i# v. CA 5awyer who was prevented fro# $ettin$ his law "oo@s fro# a unit he owned in a "uildin$. he action is for forci"le entry and unlawful detainer under Rule 7/. Possession still re#ained with Re$inaldo althou$h he was prevented fro# e9ercisin$ his ri$ht of in$ress and e$ress into the "uildin$. 0. in Civil Actions involvin$ title to or possession of real property 9P /1D, Sec. 22 .20, s 'ended %y RA E5D/ Sec. 00. Jurisdiction of 4etropolitan rial Courts% 4unicipal rial Courts and 4unicipal Circuit rial Courts in Civil Cases.

Exclusive Original Jurisdiction 1. in Civil and 1state Settle#ent Proceedin$sV over provisional re#edies

1 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA petitions and #otions for reconstitution of lost certificate of title. he clear tenor and intention of Ad#inistrative Circular No. .2902A is that only ori$inal cadastral or land re$istration cases are covered. he !urisdiction of the Cirst 5evel Courts% "ein$ #erely dele$ated% should "e li#ited to what is e9pressly #entioned in the dele$ation. 1. here are li#its to the dele$ation% i'e.% either the su"!ect #atter is an uncontested lot or if contested the value of the lot should not e9ceed =ne hundred thousand QP1//%///.//R Pesos. here will "e difficulty in the deter#ination of these li#its if and when the Cirst 5evel Courts are re-uired to e9ercise dele$ated !urisdiction over petitions su"se-uent to ori$inal re$istration. &. A Cirst 5evel Court should not "e placed in a situation where% in disposin$ of a #atter su"se-uent to re$istration% it will have to consult the records of another Court% which $ranted the ori$inal re$istration. 0. o re-uire Cirst 5evel Courts to handle petitions after ori$inal re$istration would unduly increase their doc@ets already loaded with cases covered "y R. A. 7.91% the law on their e9panded !urisdiction. herefore% #atters su"se-uent to the ori$inal re$istration deter#ined "y Second 5evel Courts% includin$ petitions for reconstitution of lost titles% should not "e unloaded to the Cirst 5evel Courts. he Second 5evel Courts are here"y directed to ta@e co$ni8ance of and e9ercise !urisdiction over such #atters. June &/% 1997.

4etropolitan rial Courts% 4unicipal rial Courts% and 4unicipal Circuit rial Courts shall e9ercise< (0+ 19clusive ori$inal !urisdiction in all civil actions which involve title to% or possession of% real property% or any interest therein where the assessed value of the property or interest therein does not e9ceed wenty thousand pesos (P&/%///.//+ or% in civil actions in 4etro 4anila% where such assessed value does not e9ceed Cifty thousand pesos (P;/%///.//+ e9clusive of interest% da#a$es of whatever @ind% attorneyTs fees% liti$ation e9penses and costs< Provided% hat in cases of land not declared for ta9ation purposes% the value of such property shall "e deter#ined "y the assessed value of the ad!acent lots. Russel v. )estil *t is the R C that has !urisdiction over this case. he #ain purpose of the action was to declare null and void a docu#ent (a$ree#ent of partition which e9cluded so#e of the heirs of properties worth P;%///+ which is incapa"le of pecuniary esti#ation. he partition of the property is #erely incidental to the #ain relief sou$ht. 3. ,ele$ated Jurisdiction. 9P /1D, Sec. 23, s 'ended %y RA E5D/
Sec. 03. ,ele$ated Jurisdiction in Cadastral and 5and Re$istration Cases. 4etropolitan rial Courts% 4unicipal rial Courts% and 4unicipal Circuit rial Courts #ay "e assi$ned "y the Supre#e Court to hear and deter#ine cadastral or land re$istration cases coverin$ lots where there is no controversy or opposition% or contested lots where the value of which does not e9ceed =ne hundred thousand pesos (P1//%///.//+% such value to "e ascertained "y the affidavit of the clai#ant or "y a$ree#ent of the respective clai#ants if there are #ore than one% or fro# the correspondin$ ta9 declaration of the real property. heir decisions in these cases shall "e appeala"le in the sa#e #anner as decisions of the Re$ional rial Courts.

;. Special Jurisdiction 9P /1D, Sec. 24,
S1C *=N 0;. Special !urisdiction in certain cases. *n the a"sence of all the Re$ional rial Jud$es in a province or city% any 4etropolitan rial Jud$e% 4unicipal rial Jud$e% 4unicipal Circuit rial Jud$e #ay hear and decide petitions &or "rit o& + %e s corpus or pp!ic tions &or % i! in cri'in ! c ses in t+e pro#ince or city "+ere t+e %sent Re$ion ! Tri ! Jud$es sit .

s

'ended %y RA E5D/

SC Circu! r No. 2IADE
$O9 1EG O2AL $1 AL CO:1$S& ME$1OPOL $A2 $1 AL CO:1$S& M:2 C PAL $1 AL CO:1$S 2 C $ ES& M:2 C PAL $1 AL CO:1$S A2) M:2 C PAL C 1C: $ $1 AL CO:1$S S:-JEC$9 CLA1 ; CA$ O2 O; $/E E<$E2$ O; )ELEGA$E) J:1 S) C$ O2 :2)E1 A)M 2 S$1A$ =E C 1C:LA1 2O' 4>,0>A O; Me$Cs& M$CCs& M$Cs A2) MC$Cs $O /EA1 A2) )E$E1M 2E CA)AS$1AL A2) LA2) 1EG S$1A$ O2 CASES'

A#en

Notes ./I No# 630

Nu#erous -ueries fro# the Courts concerned have "een received "y the Court Ad#inistrator re$ardin$ the scope of the dele$ated !urisdiction under Ad#inistrative Circular No. .2902A of 4e Cs% 4 CCs% 4 Cs AN, 4C Cs to hear and deter#ine cadastral and land re$istration cases% particularly as to whether or not the dele$ation covers

4RR v Atty2'eneral *t is a #atter of procedural law in deter#inin$ the venue of the action. he venue of a real action lies where the land or real property is situated. he CC* has !urisdiction over all lands over the country. *t is a #atter of procedure which deter#ines which of the co#petent CC*As in the country venue lies. Parties% however% #ay a$ree to chan$e the venue su"!ect to certain conditions i#posed "y the Rules. A""ain v Chua

1! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

his is an action to order tenant A""ain to vacate the land. he issue is whether the !ustice of the peace or the CAR has !urisdiction. A landlord tenant relationship e9isted "etween the partiesK Chua even alle$ed in the record that A""ain was a tenant. S1AC,1C v N5RC his was an action which involved the dis#issal of an e#ployee of S1AC,1C. he N5RC was without !urisdiction "ecause S1AC,1C was an international or$ani8ation% which en!oyed i##unity fro# suit. 1stoppel cannot confer !urisdiction. he rulin$ in i!a# is #erely an e9ceptional e9ception. A)1NA< 6as the court sayin$ that the N5RC could not ta@e co$ni8ance of the case "ecause there was lac@ of cause of action or that S1AC,1C was i##une fro# suit> A lac@ of cause of action pertains to the su"!ect #atter !urisdiction of the court which prevents it fro# e9ercisin$ !urisdiction. *##unity fro# suit spea@s of the fact that even if the court can ta@e !urisdiction of a case% the !uridical person (S1AC,1C+ was i##une fro# suit "ein$ an international or$ani8ation. PR=:514< A rally is sta$ed in the BS 1#"assy a$ainst $lo"ali8ation "y #ilitant $roups. Pasay police officers and BS e#"assy $uards are deployed to @eep the peace. A riot "rea@s out and in the co##otion so#e #ilitants are in!ured. A suit is filed a$ainst the Cilipino police officers and e#"assy $uards. 6ill the action prosper a$ainst the parties> ANS61R< he court will ac-uire !urisdiction over the person of the Cilipino officers "ut not over the BS 1#"assy $uards "ein$ forei$ners wor@in$ in the e#"assy they are i##une fro# suit here. he action will prosper "ut only a$ainst the local law enforce#ent officers. Soliven v. Cast Cor#s Castfor#s failed to pay a P17/%/// loan to Soliven. he action clai#ed da#a$es totalin$ P19;%1;;. *n A4 Cir 9293% the Supre#e Court clarified that the ter# Hda#a$es of whatever @indN #ean incidental da#a$es. Southern Cood Sales v Salas his case involved two action< one filed with the CC* for da#a$es arisin$ fro# the dis#issal and another in the N5RC for the validity of the dis#issal. Bnder the old law% in cases of dis#issal an action -uestionin$ the validity of the dis#issal can "e separated fro# an action for civil da#a$es arisin$ fro# the dis#issal. he la"or ar"iterAs !urisdiction is li#ited to those cases arisin$ fro# an e#ployer2 e#ployee relationship and the civil courts have !urisdiction over actions for da#a$es. :ut RA.71; repealed the old law in that the civil action for

da#a$es should "e instituted with the dis#issal case in the N5RC. :ut RA.71; did not provide retroactivity for cases currently pendin$. he rules of procedure at the ti#e of the co#plaint is filed deter#ines the rules applica"le to the co#plaint and the !urisdiction of the courts. Sindico v ,ia8 his was an accion reinvindicatoria filed in the R C. 5and was alle$ed to "e a$ricultural land. ,ARA: has !urisdiction over a$ricultural disputes "ut the case lac@ed any proof of a landlord2 tenant relationship. See RA ..;7 and RA8799. So#e R C have !urisdiction over co##ercial disputes and intellectual property cases that were #er$ed to for# the Special Co##ercial Courts. :ut essentially% these Special Co##ercial Courts continue to "e R Cs. 6hat is ac-uired !urisdiction> *t is the !urisdiction ac-uired "y the court over the parties (plaintiff and defendant+. Hp! inti&&H E clai#in$ party% the counter2 clai#ant% the cross2clai#ant% or the third (fourth% etc.+ party plaintiff. Hde&end ntH E ori$inal defendin$ party% the defendant in a counterclai#% the cross2defendant% or the third (fourth% etc.+ party defendant. *n third party clai#s% parties #ay want to sue other persons not yet parties to the action. *n cross clai#s% plaintiffVs sue several defendants "ut defendants file a cross clai# a$ainst their fellow defendants. 7ow is !urisdiction over the defendant ac-uired> 1. service of su##ons. &. voluntary appearance. 0. voluntary su"#ission. 7ow is service of su##ons effected> 1. personal service (handin$ a copy to the person of defendant or tender to hi#+ &. su"stituted service (place of residence or re$ular place of "usiness+ 0. service "y pu"lication 3. e9tra2territorial service. 6ho puts into effect service of su##ons> he Sheriff. 6hat is tender of service of su##ons> ender is an offer to serve su##ons to the person of the defendant "ut the defendant refuses to receive such su##ons. Can service "e effected "y leavin$ the su##ons at the foot of the person> Ges. *f there is a tender to the defendant who refuses to receive it.

1" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

6hat is the effect if the service of su##ons is not proper> Since there is no service of su##ons% then the court ac-uires no !urisdiction over the person. *t proceedin$s% !ud$#ent and decision will "e null and void with respect to the person not served with su##ons. :oticano v. Chu his case involved an a$ree#ent to pay for the repairs of the truc@. Su##ons was served throu$h su"stituted service to the wife. he plaintiff wanted to proceed e9pediently with the case so% he #oved to dis#iss the action with respect to the driver. 7e did this "ecause if he i#pleaded the driver% the case cannot proceed until the driver was served with su##ons. *f he was not i#pleaded% then the plaintiff can continue with the case "ecause the owners were already served with su##ons. Can a person appear in court in a civil case without a lawyer> Ges. Rodri$ue8 v Ali@pala. he parents of the defendant dau$hter a$reed to the co#pro#ise a$ree#ent in the lower court which "inds the# to it. 4 C had a final !ud$#ent e#"odied in the co#pro#ise a$ree#ent as it reco$ni8ed the a$ree#ent. So it had the authority to hear the action for a writ of e9ecution of its !ud$#ent. his is different is there was an out of court settle#ent "etween the parties and the case was dis#issed. *n this case% there was no decision "y the court to "e e9ecuted% thus a writ of e9ecution of !ud$#ent is not availa"le. 4aAa# says for purposes of practice% it is "est that when the parties enter into a co#pro#ise a$ree#ent% let the court reco$ni8e it. he courtAs reco$nition of the co#pro#ise a$ree#ent acts as an assurance that its condition will "e followed% or else would $ive rise to an action for e9ecution for enforce#ent of the courtAs decision. A#en Notes .16 No# 630

3. the property of the defendant has "een attached within the Philippines. 7ow is service of su##ons effected if the defendant is found in the Philippines> 1. personal service &. su"stituted service 7ow is service of su##ons effected if the defendant is N= found in the Philippines> 1. pu"lication and re$istered #ail &. personal service outside of the Philippines 0. any other #anner the court #ay dee# sufficient (i.e. throu$h the Philippine e#"assy% #ail% and courier+ Rule 18. Sec. 7. 1ecord o! pre>trial' he proceedin$s in the pre2trial shall "e recorded. Bpon the ter#ination thereof% the court shall issue an order which shall recite in detail the #atters ta@en up in the conference% the action ta@en thereon% the a#end#ents allowed to the pleadin$s% and the a$ree#ents or ad#issions #ade "y the parties as to any of the #atters considered. S+ou!d t+e ction proceed to tri !, t+e order s+ !! e)p!icit!y de&ine nd !i'it t+e issues to %e tried . he contents of the order shall control the su"se-uent course of the action% unless #odified "efore trial to prevent #anifest in!ustice. his provision is si$nificant "ecause if counsel is not careful% issues which were not in the pre2trial order could "e raised "y opposin$ counsel durin$ the trial. Rule 1/ Sec. ;. Amendment to con!orm to or authori6e presentation o! evidence' 6hen issues not r ised %y t+e p!e din$s re tried "it+ t+e e)press or i'p!ied consent o& t+e p rties% they shall "e treated in all respects as if they had "een raised in the pleadin$s. Such a#end#ent of the pleadin$s as #ay "e necessary to cause the# to confor# to the evidence and to raise these issues #ay "e #ade upon #otion of any party at any ti#e% even after !ud$#entK "ut failure to a#end does not affect the result of the trial of these issues. *f evidence is o"!ected to at the trial on the $round that it is not within the issues #ade "y the pleadin$s% the court #ay allow the pleadin$s to "e a#ended and shall do so with li"erality if the presentation of the #erits of the action and the ends of su"stantial !ustice will "e su"served there"y. he court #ay $rant a continuance to ena"le the a#end#ent to "e #ade. *n relation to the other provision% this rule is used a$ainst inattentive lawyers. *f opposin$ party raises an issue durin$ trial "ut not in the pleadin$s and defense counsel does not o"!ect% the issue is dee#ed to have "een raised as if they were written in the pleadin$s. Br"ano v. Chave8

6hat are the instances where e9traterritorial service of su##ons is proper> (Rule 13 Sec. 1;+ 1. when the defendant does not reside and is not found in the Philippines and the action affects the personal status of the plaintiff (i.e. reco$nition of paternity% #arria$e% etc.+ &. the su"!ect of which is property within the Philippines% in which the defendant has or clai#s a lien or interest% actual or contin$ent 0. the relief de#anded consists% wholly or in part in e9cludin$ the defendant fro# any interest in the real property in the Philippines.

19 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

he case pertains to two instances involvin$ the appearance of Solicitor 'eneral in so#e cases. ?uestions of law are e9clusively handled "y the Supre#e Court. =rti$as v CA his involved an error of !urisdiction at each sta$e of the action. 4 C has no !urisdiction. Action was appealed to the R C "ut the R C wron$fully too@ co$ni8ance of the action. CA e9ercised appellate !urisdiction. Josefa v Lhandon$ '1N1RA5< RB51< =nly -uestions of law are entertained "y the Supre#e Court in a petition for review on certiorari. 1OC1P *=NS< 1. the conclusion is $rounded on speculations% sur#ises or con!ectures. &. the inference is #anifestly #ista@en% a"surd or i#possi"le. 0. there is $rave a"use of discretion 3. the !ud$#ent is "ased on #isapprehension of facts. ;. the findin$s of fact are conflictin$ .. there is no citation of specific evidence on which the factual findin$s are "ased. 7. the findin$ of a"sence of facts is contradicted "y the presence of evidence on record 8. the findin$ of the Court of Appeals are contrary to those of the trial court. 9. the Court of Appeals #anifestly overloo@ed certain relevant and undisputed facts that% if properly considered% would !ustify a different conclusion 1/. the findin$s of the Court of Appeals are "eyond the issues of the case. 11. such findin$ are contrary to the ad#issions of "oth parties People v Sola his is a petition "y certiorari to chan$e venue that was a direct action to the Supre#e Court. he Supre#e Court has e9clusive power to chan$e the venue upon assertion of the party of e9ceptional circu#stances warrantin$ such chan$e. ,efendants in the case were pu"lic officers who threatened the witnesses. C: v CA his is the P1//%///%/// clai# that paid only P1&/ for doc@et fees. Ascue v CA. Consi$nation esti#ation. A#en is capa"le of pecuniary

his is an action involvin$ the shippin$ of dried fish that was lost even "efore the ship had sailed. 4ariti#e and ad#iralty cases involved trade and transactions in the sea. :ut in this case the ship had not yet #oved% was there already a #ariti#e trade or transaction> 4ariti#e !urisdiction included #ariti#e tort. :aito v Sar#iento his was an action for support a#ountin$ to P7&/. he action for support is incapa"le of pecuniary esti#ation "ecause the court is as@ed to deter#ine first whether or not the wife was indeed entitled to support. After a deter#ination of that support is warranted% the court is then as@ed to deter#ine the a#ount of the clai# usin$ relevant factors in the case. ,oes the R C have !urisdiction to hear ori$inal actions to annul decision of the 4 C% !ust li@e the authority of CA over R C> Bnder :P1&9 Sec9% the CA has ori$in ! *urisdiction to hear ori$inal actions for the annul#ent of decisions of R C. Bnder :P1&9 Sec&&% the R C e9ercises ppe!! te *urisdiction to over all decisions of the 4 C% which is dissi#ilar to the power of the CA% a"ove#entioned% "ecause the latter pertains to an ori$inal action (suit filed in the first instance+. :ut the R C is said to still e9ercise such ori$inal !urisdiction over ori$inal actions for annul#ent of 4 C decisions under Rule 37 Section 1/% to wit% HAn action to annul a !ud$#ent or final order of a 4unicipal rial Court shall "e filed in the Re$ional rial Court havin$ !urisdiction over the for#er. *t shall "e treated as an ordinary civil action and sections &% 0% 3% 7% 8 and 9 of this Rule shall "e applica"le thereto.N Also another "asis for this is the $eneral ori$inal !urisdiction $ranted to R C (:P1&9 Section .% in all other cases not within the e9clusive !urisdiction of any court+. 5i# Jieh on$ v. CA his was the case of the lawyer loc@ed out of his own apart#ent unit in a "uildin$ and was forced to "uy three new law "oo@s. he action was one for forci"le entry and unlawful detainer as the tenant2lawyer was prevented fro# ta@in$ possession of his roo# in the "uildin$. Actions for Corci"le 1ntry and Bnlawful ,etainer. Rule 7/ Section 1. ?ho ma" institute proceedings& and %hen. Su"!ect to the provisions of the ne9t succeedin$ section% a person deprived of the possession of any land or "uildin$ "y force% inti#idation% threat% strate$y% or stealth% or !essor, #endor, #endee, or ot+er person $ inst "+o' t+e possession o& ny ! nd or %ui!din$ is un! "&u!!y "it++e!d after the e9piration or

Notes .12 No# 630

Ne$re v Ca"ahu$

20 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

ter#ination of the ri$ht to hold possession% "y virtue of any contract% e9press or i#plied% or the le$al representatives or assi$ns of any such lessor% vendor% vendee% or other person% #ay% at any ti#e within one (1+ year after such unlawful deprivation or withholdin$ of possession% "rin$ an action in the proper 4unicipal rial Court a$ainst the person or persons unlawfully withholdin$ or deprivin$ of possession% or any person or persons clai#in$ under the#% for the restitution of such possession% to$ether with da#a$es and costs. he provision allows C1B, (forci"le entry and unlawful detainer+ to "e filed even "y lessees of land% "uildin$ and even parts thereof (roo#s in a "uildin$+ 6hat is the difference of =R'*NA5 JBR*S,*C *=N and APP155A 1 JBR*S,*C *=N in reference to the rulin$ in the St. 4artinAs case> A petition for certiorari under Rule .; ($rave a"use of discretion+ is an ori$inal action% since the cause of action is to "e ta@en "y the court for the first ti#e. A petition for review on certiorari under Rule 3; (-uestion of law+ is part of the process of appeal% as a decision of a lower court has already "een rendered. *n St. 4artinAs% it was held that the old law provided appeal fro# decisions of the N5RC to the ,=51 Secretary and then appeal to the =ffice of the President. :ut P, 091 a"olished appeals fro# decisions of the N5RC and would see# that N5RC had the last and final say in the case. :ut despite the a"olition of the appeal to the ,=51 Secretary and President "y P, 091% the Supre#e Court ruled that the law did not deprive the Supre#e CourtAs !udicial power to hear a la"or case "ut N= as an appeal fro# the decision of the N5RC "ut as an ori$inal action. :ut in St. 4artinAs% it was also ruled that despite the power e9ercised "y the Supre#e Court% an action -uestionin$ the decision of the N5RC should first pass throu$h the CA which has concurrent !urisdiction "ecause of the a"undance of la"or cases co#in$ to the SC and "ecause of the deference afforded to the hierarchy of courts. 6hen is !udicial power e9ercised> 6hat is !udicial review> Judicial power is the power vested in the Supre#e Court and to such lower courts as #ay "e esta"lished "y law. Judicial power is e9ercised in the followin$ instances< 1. to settle actual controversies involvin$ ri$hts which are le$ally de#anda"le and enforcea"le. &. to deter#ine whether or not there has "een a $rave a"use of discretion a#ountin$ to lac@ of or e9cess of !urisdiction on the part of any "ranch or instru#entality of the $overn#ent. 0. actions for declaratory relief (Rule .0+

Judicial review is the power of the courts to review the decisions of another depart#ent or level of $overn#ent or to declare a le$islative act of Con$ress void for "ein$ unconstitutional. 4ar"ury v 4adison. Russel v )estil his was an action for declaration of nullity of a deed of partition. An action for declaration of nullity is incapa"le of pecuniary esti#ation. he a#ount clai#ed for was #erely incidental to the #ain relief that was for declaration of nullity. ,ifferentiate an action for declaration of nullity and action to annul. An action for declaration of nullity pertains to contracts which are void a" intio and had no effect whatsoever. An action to annul is used a$ainst voida"le contracts. 1. Special Rules 4anufacturerAs ,istri"utorAs v. Gu Siu 5ion$ he action was to co#pel Gu Siu 5ion$ to accept delivery of the $oods% which is incapa"le of pecuniary esti#ation. Pay#ent in #oney is not an alternative e-uivalent% "ut a conse-uence or result of the specific perfor#ance and cannot constitute a pecuniary esti#ation thereof. Cru8 v an he alternative re#edy of specific perfor#ance that consists of finishin$ the house% is capa"le of pecuniary esti#ation at the sa#e a#ount% #ore or less. he !urisdiction of the court is deter#ined "y the value of the de#and and not the value of the transaction out of which the de#and arose. 5apitan v. Scandia Rescission is a counterpart of specific perfor#ance and there #ust "e in-uiry into #atters which would !ustify the settin$ aside of the contract. he deter#ination of da#a$es% de#and an in-uiry into other factors which the law has dee#ed to "e #ore within the co#petence of the CC*% which were the lowest courts of record at the ti#e. 'ood ,evelop#ent v. 5apitan he CC* had !urisdiction over the case even if the action was to recover only P1%;&/% "ecause the personal property su"!ect to the chattel #ort$a$e a#ounted to P1;%03/. 6hen the action involves the foreclosure of a chattel #ort$a$e concernin$ properties valued at #ore than P1/%///% the action should "e instituted with the CC*.

21 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

A#en

Notes .12 No# 630

4N14=N*C< 4aAa# su$$ests you do it alpha"etically (&/ a$encies+. A D1% :2&% C23% ,21% 12&% '21% *21% 521% N2&% =21% P2 1% S2&% )21 A$ricultural *nventions :oard :oard of *nvest#ents :ureau of Patents% rade#ar@s and echnolo$y ransfer Central :oard of Assess#ent Appeals Civil Service Co##ission Civil Aeronautics :oard Construction *ndustry Ar"itration Co##ission ,epart#ent of A$rarian Refor# under Repu"lic Act No. ..;7 1#ployees Co#pensation Co##ission 1ner$y Re$ulatory :oard 'overn#ent Service *nsurance Syste# *nsurance Co##ission 5and Re$istration Authority National 1lectrification Ad#inistration National eleco##unications Co##ission =ffice of the President Philippine Ato#ic 1ner$y Co##ission Securities and 19chan$e Co##ission Social Security Co##ission )oluntary ar"itrators authori8ed "y law.

4anufacturerAs v Gu Siu 5ion$ his involved an action to accept delivery of $oods that the purchaser refused to accept fro# the vendor. he value of the $oods was incidental to the enforce#ent of deliver or co#pulsion to accept delivery% which was incapa"le of pecuniary esti#ation. Cru8 v an his case involved an action to co#pel either the finishin$ of the construction of the house OR pay the su# of P.33. he alternative relief prayed for was capa"le of pecuniary esti#ation. he action to co#pel finishin$ the house is% at first $lance% incapa"le of pecuniary esti#ation "ut #a@in$ an alternative relief for a definite su# of #oney the co#pulsion to co#plete the house e-uivalent to that su#. Co#pared to 4anufacturerAs% the de#and for a su# of #oney which was the value of the car$o to "e delivered in 4anufacturerAs was incidental to the #ain relief of co#pellin$ the purchaser to first accept the $oods. 5apitan v. Scandia 5apitan purchased an en$ine fro# Scandia which "ro@e twice. So 5apitan wanted to rescind the contract of purchase and return of the purchase price. Rescission is the counterpart or opposite of specific perfor#ance. Since specific perfor#ance was incapa"le of pecuniary esti#ation% then so was rescission. 'ood ,evelop#ent v. utaan his was an action for a su# of #oney P1%;&/ secured "y chattel #ort$a$e of personal property worth P1;%03/. he Court loo@ed at the value of the chattel property in deter#inin$ which court had !urisdiction citin$ the case of Seno v. Pestolante. 4aAa# -uestioned the decision of the SC "ecause it deter#ined the !urisdictional a#ount "ased on an accessory contract of chattel #ort$a$e. :ut in chattel #ort$a$e% the #ort$a$ee has no ri$ht to the property itself (pactu# co##isoriu#+ and his only ri$ht to sell the property in a pu"lic auction and apply the proceeds of the sale to his loan. he value of the property was not yet deter#inate at the ti#e of foreclosure% "ecause the value can $o fluctuate dependin$ on the "ids #ade at the pu"lic auction. 6hat is the e9tent of appellate !urisdiction of the CA over -uasi2!udicial "odies> he CA has e9clusive appellate !urisdiction over decisions of -uasi2!udicial a$encies. Rule 30 Section 1

22 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

VI. Scope Procedure

nd Construction o& Ru!es o& Ci#i!

$itle o! the 1ules.
hese Rules shall "e @nown and cited as the Rules of Court. (Sec. 1% Rule 1+

n %hat courts applicable.
hese Rules shall apply in all the courts% e9cept as otherwise provided "y the Supre#e Court. (Sec. &% Rule 1+

fro# their operation "ecause the Rules were precisely adopted with the pri#ary o"!ective of enhancin$ fair trial and e9peditious !ustice. (Repu"lic v. CA% et al. 'R 5201/02/3% 4ay 01% 1978+ he Supre#e Court has inherent !urisdiction that it can always e9ercise in settin$s attended "y unusual circu#stances to prevent #anifest in!ustice that could result to "are technical adherence to the law and i#precise !urisprudence. (Co v PN:% 'R No. ;17.7% June &9% 198&+ PRESIDENTIAL DECREE NO. D35 R1=R'AN*L*N' 71 C=BR S =C A'RAR*AN R15A *=NS% S R1A45*N*N' 71*R PR=C1,BR1S% AN, C=R = 71R PBRP=S1S (June 17% 197.+
S1C *=N 1.. Rules of Procedure. he Courts of A$rarian Relation shall adopt unifor# rules of procedure on #atters not provided for in this ,ecree in order to achieve a !ust% e9peditious and ine9pensive deter#ination of every action or proceedin$ filed "efore the#. T+e ru!es o& Court s+ !! not %e pp!ic %!e to $r ri n c ses, e#en in supp!etory c+ r cter. *t is the spirit and intention of this ,ecree that the Courts of A$rarian Relations shall utili8e and e#ploy every and all reasona"le #eans to ascertain the facts of every case in accordance with !ustice and e-uity and the #erits of the case% without re$ard to technicalities of law and procedure. o this end% each Court of A$rarian Relations shall have the authority to adopt any appropriate #easure or procedure in any situation or #atter not provided for or covered "y this ,ecree and in the unifor# rules of procedure of the Courts of A$rarian Relations. All such special #easures or procedures% and the situations to which they are applied shall "e reported to the Supre#e Court "y the individual Jud$es throu$h the 19ecutive Jud$e who shall furnish copies of such reports to all the other Jud$es. *n cri#inal and e9propriation cases the Rules of Court shall apply.

Cases governed'
hese Rules shall $overn the procedure to "e o"served in actions% civil or cri#inal% and special proceedin$s. (Sec. 0% Rule 1+ (a+ A ci#i! ction is one "y which a party sues another for the enforce#ent or protection of a ri$ht% or the prevention or redress of a wron$. A civil action #ay either "e ordinary or special. :oth are $overned "y the rules for ordinary civil actions% su"!ect to the specific rules prescri"ed for a special civil action. ("+ A cri'in ! ction is one "y which the State prosecutes a person for an act or o#ission punisha"le "y law. (c+ A speci ! proceedin$ is a re#edy "y which a party see@s to esta"lish a status% a ri$ht% or a particular fact.

n %hat cases not applicable.
hese Rules shall not apply to election cases% land re$istration% cadastral% naturali8ation and insolvency proceedin$s% and other cases not herein provided for% e9cept "y analo$y or in a suppletory character and whenever practica"le and convenient. (Sec. 3% Rule 1+

Commencement o! action'

A civil action is co##enced "y the filin$ of the ori$inal co#plaint in court. *f an additional defendant is i#pleaded in a later pleadin$% the action is co##enced with re$ard to hi# on the date of the filin$ of such later pleadin$% irrespective of whether the #otion for its ad#ission% if necessary% is denied "y the court. (Sec. ;% Rule 1+

Construction.
hese Rules shall "e li"erally construed in order to pro#ote their o"!ective of securin$ a !ust% speedy and ine9pensive disposition of every action and proceedin$. (Sec. .% Rule 1+

6hat are the types of actions $overned "y the Rules of Court> 1. Civil Action &. Cri#inal Action 0. Special Proceedin$ 6hat is a civil action> A civil action is one "y which a party sues another for the enforce#ent or protection of a ri$ht% or the prevention or redress of a wron$. 6hat are the @inds of civil actions> 1. =rdinary. &. Special Civil Action. S:oth are $overned "y the rules for ordinary civil actions% su"!ect to the specific rules prescri"ed for a special civil action. All rules pertainin$ to ordinary civil actions (Rule 1 D .1+ are applica"le to special civil actions. 6hat is a cri#inal action> A cri#inal action is one "y which the State prosecutes a person for an act or o#ission punisha"le "y law.

Re$ ! do Notes= CVf Rule 10; Section .. he Code of Civil Procedure (Act No. 19/+ is one of the #ain sources of the old Rules of Court% which too@ effect on July 1% 193/ and% in turn of the present revised Rules. hey have the force and effect of law. Can the Supre#e Court suspend the application of the Rules of Court> Ges% in the interest of !ust and e9peditious proceedin$s% the Supre#e Court #ay suspend the application of the Rules of Court and e9cept a case

23 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

6hat is a special proceedin$> A special proceedin$ is a re#edy "y which a party see@s to esta"lish a status% a ri$ht% or a particular fact. *s there a distinction "etween a suit and an action in Philippine !urisprudence> No% there is no difference "etween a suit and an action as our courts are courts of law and e-uity. Action is $enerally confined to proceedin$s in courts of law% while suit is e-ually applied to prosecution at law or in e-uity. *n what cases is the Rules of Court not applica"le> 4ne#onic< N*C15. 1. Naturali8ation proceedin$s &. *nsolvency proceedin$s 0. Cadastral proceedin$s 3. 1lection cases ;. 5and re$istration proceedin$s. S 19cept that the Rules of Court #ay "e applied "y analo$y or in a suppletory character and whenever practica"le and convenient. Also e9cluded fro# the applica"ility of the Rules of Court are corporate disputes under P, 9/&A and "an@ruptcy proceedin$s. 6hen is an action said to have "een co##enced> An action is co##enced "y the filin$ of the ori$inal co#plaint in court. As lon$ as the co#plaint is filed within the prescriptive period% the clai# alle$ed therein is not "arred even if su##ons was served on the defendant AC 1R the prescriptive period. Can an action "e co##enced "y the filin$ the co#plaint throu$h re$istered #ail> Ges. *f the #ailin$ was done in accordance with Rule 10% Section 0% the fact that said co#plaint% as #ailed% was actually received "y the cler@ of said court after the lapse of the prescriptive period is i'' teri ! as the date of #ailin$ is considered the date of the filin$ of said co#plaint. 6hat is the rule on co##ence#ent of an action in relation to doc@et fees> 'eneral rule is that a case is dee#ed filed only upon the pay#ent of the doc@et fee. *f the re-uisite doc@et fee was actually paid% either personally or also "e #ail% su"se-uent to the #ailin$ of the co#plaint% the date of such pay#ent or the #ailin$ of said a#ount therefore shall "e considered as the date of the filin$ of the co#plaint. 7ow are doc@et fees assessed> All co#plaints% petitions% answers and si#ilar pleadin$s #ust specify the a#ount of da#a$es "ein$ prayed for "oth in the %ody o& t+e p!e din$ and in the pr yer therein% and said da#a$es shall "e considered in the assess#ent of the filin$ fees.

6here the action involved real property and related clai#s for da#a$es% the le$al fees shall "e assessed on "oth the value of the property and total a#ount of da#a$es sou$ht. 6hat happens if the co#plaint was filed without payin$ the doc@et fees> *f there is no pay#ent of doc@et fees% the pleadin$ shall not "e accepted for filin$ and shall "e e9pun$ed fro# the record. (4anchester ,evelop#ent Corp% et al v. CA% et al. 'R No. 7;919% 4ay 7% 1987+ 7owever% this rulin$ has "een #odified as follows (Sun *nsurance =ffice% 5td. v Asuncion% 'R No. 79907208% Ce"ruary 10% 1989+< a. when the filin$ of the initiatory pleadin$ is not acco#panied "y pay#ent of the doc@et fee% the court #ay allow pay#ent of the fee within a reasona"le ti#e "ut not "eyond the applica"le prescriptive or re$le#entary period. ". the sa#e rule applies to per#issive counterclai#s% third2party clai#s and si#ilar pleadin$s. c. when the trial court ac-uire !urisdiction over a clai# "y the filin$ of the appropriate pleadin$ and pay#ent of the prescri"ed filin$ fee "ut su"se-uently% the !ud$#ent awards a clai# not specified in the pleadin$s% or if specified the sa#e has "een left for deter#ination "y the court% the additional filin$ fee therefore shall constitute a lien on the !ud$#ent which shall "e enforced and the additional fee assessed and collected "y the cler@ of court. 6hat is the doctrine of e9haustion of re#edies> 6hat are the e9ceptions to this rule> :efore "rin$in$ an action in or resortin$ to the courts of !ustice% all re#edies of ad#inistrative character affectin$ or deter#inative of the controversy at that level should first "e e9hausted "y the a$$rieved party. he e9ception to this rule includes the followin$ cases< 1. 6here the issue is purely a le$al one and nothin$ of an ad#inistrative nature is to "e and can "e done or when no ad#inistrative re#edy is provided "y law. &. 6here the insistence on its o"servance would result in nullification of the clai# "ein$ asserted or when to re-uire e9haustion of ad#inistrative re#edies would "e unreasona"le. 0. 6here the controverted act is patently ille$al or was perfor#ed without the !urisdiction or in e9cess of !urisdiction or when there is estoppel on the part of the ad#inistrative a$ency concerned. 3. 6here the respondent is a depart#ent secretary% whose acts as an alter e$o of the President "ear the i#plied or assu#ed approval of the latter% unless actually disapproved "y the President. ;. 6here there are circu#stances indicatin$ the ur$ency of !udicial intervention.

24 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

.. 6hen the rule does not provide a plain% speedy and ade-uate re#edy or when the issue of non2 e9haustion of ad#inistrative re#edies has "een rendered #oot. 7. 6hen there is a violation of due process. 8. 6hen there is irrepara"le in!ury. 9. 6hen the su"!ect #atter is a private land in land case proceedin$s. 7ow should the Rules of Court "e construed> hese Rules shall "e li"erally construed in order to pro#ote their o"!ective of securin$ a !ust% speedy% and ine9pensive disposition of every action and proceedin$. Are the rules on period li"erally construed> 6hile the Rules are li"erally construed% the provisions on re$le#entary periods are strictly applied as they are dee#ed indispensa"le to the prevention of needless delays and necessary to the orderly and speedy dischar$e of !udicial "usiness. A#en Notes ./5 No# 630

VII. Uni&or' Procedure
he procedure in the 4unicipal rial Courts shall "e the sa#e as in the Re$ional rial Courts% e9cept (a+ where a particular provision e9pressly or i#pliedly applies only to either of said courts% or ("+ in civil cases $overned "y the Rule on Su##ary Procedure. (Sec. 1% Rule ;+

A#en

Notes .12 No# 630

6hat is the unifor# procedure rule in trial courts> Are there e9ceptions to the rule> he procedure in the 4unicipal rial Courts shall "e the sa#e as in the Re$ional rial Courts. (Rule ;% Section 1+ 1OC1P *=NS< 1. where a particular provision e9pressly or i#pliedly applies only to either of said courts% or &. in civil cases $overned "y the Rule on Su##ary Procedure. 6hat is the scope of the Rules of Su##ary Procedure> Su##ary procedure includes the followin$< 1. Corci"le entry and unlawful detainer% irrespective of the a#ount of da#a$es or unpaid rentals sou$ht to "e recovered. &. All other cases where the total a#ount of plaintiffAs clai# does not e9ceed P1/%///.// e9cept pro"ate 6hat are the only pleadin$s allowed in su##ary procedures> a. co#plaint ". co#pulsory counterclai# and crossclai# c. answers thereto.

Rule 1 Section 1 itle of the Rules of Court he Rules of Court were preceded "y the 193/ Code of Civil Procedure% then "y the 19.3 Rules of Court. 6hat are the new !urisdictional a#ounts "ased on RA 7.91> :ased on Section ;% RA 7.91 which "eca#e effective in April 1993% the !urisdictional a#ounts are the followin$< Period Bpon enact#ent of RA 7.91 April 99 D April /3 (five years after effectivity of RA 7.91+ April /3 to present =utside of 4etro 4anila P 1//%///.// P &//%///.// *n 4etro 4anila P &//%///.// P 3//%///.//

P 0//%///.//

P 3//%///.//

:ut these ad!usted !urisdictional a#ounts shall only apply to the followin$ instances delineatin$ the !urisdictional a#ounts for the R C and 4 C. 1. ad#iralty and #ariti#e actions. &. pro"ate proceedin$s 0. in all other cases not involvin$ real property. he !urisdictional a#ount with respect to all civil actions which involve title to% or possession of real property and any interest therein still re#ains the sa#e ( P;/%/// for civil actions in 4etro 4anila and P&/%/// outside of 4etro 4anila.+

25 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

VI. Actions Jinds of Actions (Rule 1% Section 0+
hese Rules shall $overn the procedure to "e o"served in actions% civil or cri#inal% and special proceedin$s. (a+ A ci#i! ction is one "y which a party sues another for the enforce#ent or protection of a ri$ht% or the prevention or redress of a wron$. A civil action #ay either "e ordinary or special. :oth are $overned "y the rules for ordinary civil actions% su"!ect to the specific rules prescri"ed for a special civil action. ("+ A cri'in ! ction is one "y which the State prosecutes a person for an act or o#ission punisha"le "y law. (c+ A speci ! proceedin$ is a re#edy "y which a party see@s to esta"lish a status% a ri$ht% or a particular fact.

sustained. 7ernande8 v. Rural :an@ of 5ucena Personal Action D action a$ainst personal property Real Action D action on real property Action in Persona# D action a$ainst a person Action in Re# D action a$ainst a thin$. &. As to their :*N,*N' 1CC1C Action 1em in =ne which is not directed only a$ainst a particular persons "ut a$ainst the thin$ itself and the o"!ect of which is to "ar indifferently all who #i$ht "e #inded to #a@e an o"!ection a$ainst the ri$ht sou$ht to "e enforced (!ud$#ent which is "indin$ to the whole world+ =ne which is directed a$ainst particular persons on the "asis of their personal lia"ility to esta"lish a clai# a$ainst the# and the !ud$#ent wherein is "indin$ only upon the parties i#pleaded or their successors in interest =ne directed a$ainst particular persons "ut the purpose of which is to "ar and "ind not only said persons "ut any other person who clai#s any interest in the property or ri$ht su"!ect of the suit.

6hat is a cause of action> 6hat is a ri$ht of action> Are they different fro# one another>

A c use o& ction is the act or o#ission "y which a party violates a ri$ht of another. A ri$+t o& ction is the re#edial ri$ht or ri$ht to relief $ranted "y law to a party to institute an action a$ainst a person who has co##itted a delict or wron$ a$ainst hi#.

Action in Personam

Cause o! Action Cause of action is the delict or wron$ *s deter#ined "y aver#ents of pleadin$ re$ardin$ acts co##itted "y defendant the the the the

1ight o! Action Ri$ht of action is the ri$ht to sue as a conse-uence of that delict *s deter#ined "y the su"stantive law.

Action @uasi in 1em

6hat is re!ie&> he redress% protections% award or coercive #easure which the plaintiff prays the court to render in his favor as a conse-uence of the delict co##itted "y the defendant. 6hat is a re'edy> he procedure or type of action which #ay "e availed of "y the plaintiff as the #eans to o"tain the relief desired. Nature of Actions 1. As to SB:J1C 4A 1eal Action 1R

,e 4id$ely v. Cerandos A -uasi in re# action is an action "etween parties where the direct o"!ect is to reach and dispose of property owned "y the# or so#e interest therein. Jurisdiction was ac-uired "ecause it was a -uasi in re# action% where !urisdiction over the person is not re-uired and where the service of su##ons is re-uired only for the purpose of co#plyin$ with the re-uire#ent of due process. 0. As to )1NB1 $ransitor" Action =ne the venue of which is dependent $enerally upon the residence of the parties re$ardless of where the cause of action arose =ne which is re-uired "y the Rules to "e instituted in a particular place in the a"sence of an a$ree#ent to the contrary

Personal Action Mixed Action

Action "rou$ht for the protection of real ri$hts% land% tene#ents or heredita#ents or one founded on privity of estate only (accion reivindicatoria# Action which is not founded upon privity of real ri$hts or real property (action for a su# of #oney+ Actions "rou$ht for protection or recovery of real property and also for award for da#a$es

Local Action

PR=:514< A ship#ent of $oods "y sea fro# 7on$ Jon$ to 4anila is covered "y a "ill of ladin$. he consi$nee is unhappy with the ship#ent. 7e "rin$s an action a$ainst the shipper and carrier in 4anila. he stipulation in the contract provides for an ar"itration clause. he defendants filed a 4otion to
2 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

,is#iss on the $round of failure to co#ply with condition procedure D ar"itration. Rule on the #otion. ANS61R< ,enied. *f the plaintiff files a case which is pre#ature or fails to e9haust ad#inistrative re#edies% then the case can "e dis#issed for failure to state a cause of action. Since there is no cause of action% the case is not yet ripe for ad!udication "y a court. S 6hen the plaintiff fails to resort to the Aatarungang Pambarangga" accordin$ to Supre#e Court Ad#inistrative Circular 13290% the case can "e dis#issed for failure to state a cause of action or failure to co#ply with condition precedent. 7owever% the Supre#e Court also said that the proceedin$s in court can also "e suspended. (:en$8on v Chan+. *f there is no resort to ar"itration "efore the case is "rou$ht to court% the court #ay suspend the case applyin$ SC Ad#inistrative Circular 13290. PR=:514< he co#plaint prays for su# of da#a$es worth P&%///%///.//. he co#plaint is lod$ed with the R C. :ut in truth and in fact% the plaintiff is only entitled to P1//%///.// ,efendant filed a #otion to dis#iss for lac@ of !urisdiction over the su"!ect #atter. Rule on the #otion. ANS61R< ,enied. Jurisdiction is deter#ined "y the alle$ations in the co#plaint and not the evidence presented. Jurisdiction of the courts is "ased on the a#ounts stipulated in the alle$ations. PR=:514< Petitioner wants to challen$e the constitutionality of a statute% can he $o directly to the Supre#e Court> ANS61R< No. 5ower courts have the !urisdiction to rule on the constitutionality of statutes. his refers to a decentrali8ed type of !udicial review% in which the power to decide the constitutionality of a statute is not reposed on the Supre#e Court alone% "ut to lower courts as well. PR=:514< Plaintiff files an action for e!ect#ent and recovery of P1%;//%///.//. 6here should he file> ANS61R< 4 C. he Revised Rules of Su##ary Procedure provide that all cases of forci"le entry and unlawful detainer *RR1SP1C *)1 of the a#ount of da#a$es and unpaid rentals sou$ht to "e recovered are vested with the 4 C% 4e C% 4C C. (Revised Rules of Su##ary Procedure Section 1 A (1++. PR=:514< Plaintiff files an action to collect P1/%///.//. he defendants reside in ?C. ,o they still have to $o throu$h the Aatarungang Pambaranga"> ANS61R< Ges. Plaintiff #ust $o throu$h the process in the "aran$ay of defendant. 7owever there are 1OC1P *=NS to the Aatarungan Pambaranga" (SUPRECE COURT ADCINISTRATIVE CIRCULAR NO. /3AD2+<

1. 6here one party is the $overn#ent% or any su"division or instru#entality thereofK &. 6here one party is a pu"lic officer or e#ployee% and the dispute relates to the perfor#ance of his official functionsK 0. 6here the dispute involves real properties located in different cities and #unicipalities% unless the parties thereto a$ree to su"#it their difference to a#ica"le settle#ent "y an appropriate 5uponK 3. Any co#plaint "y or a$ainst corporations% partnerships or !uridical entities% since only individuals shall "e parties to :aran$ay conciliation proceedin$s either as co#plainants or respondents (Sec. 1% Rule )*% Jatarun$an$ Pa#"aran$ay Rules+K ;. ,isputes involvin$ parties who actually reside in "aran$ays of different cities or #unicipalities% e9cept where such "aran$ay units ad!oin each other and the parties thereto a$ree to su"#it their differences to a#ica"le settle#ent "y an appropriate 5uponK .. =ffenses for which the law prescri"es a #a9i#u# penalty of i#prison#ent e9ceedin$ one (1+ year or a fine over five thousand pesos (P;%///.//+K 7. =ffenses where there is no private offended partyK 8. ,isputes where ur$ent le$al action is necessary to prevent in!ustice fro# "ein$ co##itted or further continued% specifically the followin$< a. Cri#inal cases where accused is under police custody or detention (See Sec. 31& ("+(1+% Revised Jatarun$an$ Pa#"aran$ay 5aw+K ". Petitions for ha"eas corpus "y a person ille$ally deprived of his ri$htful custody over another or a person ille$ally deprived of his li"erty or one actin$ in his "ehalfK c. Actions coupled with provisional re#edies such as preli#inary in!unction% attach#ent% delivery of personal property and support durin$ the pendency of the actionK and d. Actions which #ay "e "arred "y the Statute of 5i#itations. 9. Any class of disputes which the President #ay deter#ine in the interest of !ustice or upon the reco##endation of the Secretary of JusticeK 1/. 6here the dispute arises fro# the Co#prehensive A$rarian Refor# 5aw (CAR5+ (Secs. 3. W 37% R.A. ..;7+K 11. 5a"or disputes or controversies arisin$ fro# e#ployer2e#ployee relations (4ontoya vs. 1scayo% et al.% 171 SCRA 33&K Art. &&.% 5a"or Code% as a#ended% which $rants ori$inal and e9clusive !urisdiction over conciliation and #ediation of disputes% $rievances or pro"le#s to certain offices of the ,epart#ent of 5a"or and 1#ploy#ent+K 1&. Actions to annul !ud$#ent upon a co#pro#ise% which #ay "e filed directly in court (See Sanche8 vs. upa8% 1;8 SCRA 3;9+. PR=:514< Co#plainant filed in the R C to recover pay#ent for P1;%///.//% attorneyAs fees of

2! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

P;%///.// and interest accrued as of the ti#e of the filin$% P1%;//.//. ,efendant #oves to dis#iss on the $round of R CAs lac@ of !urisdiction. 7is #otion is $ranted. Plaintiff then appeals to the Court of Appeals. Resolve the appeal. ANS61R< he CA should dis#iss the case outri$ht. (Rule ;/% Sec &+. his is a si$nificant chan$e fro# the old rules where the CA should !ust certify a wron$fully2filed case to the SC. Supre#e Court has appellate !urisdiction over cases in which the !urisdiction of the Re$ional rial Court over the su"!ect #atter is an issue. PR=:514< *f the action is to recover the P1;%///.// "alance fro# a contract to "uy a car which is worth P;//%///.//% which a#ount is deter#inative of the !urisdiction of the court> ANS61R< A#ount in the clai#. he settled rile is that the !urisdiction over the su"!ect #atter is deter#ined "y the alle$ations of the co#plaint. 4 C% 4e C and 4C C have !urisdiction over the P1;%///.// "alance. PR=:514< Plaintiff files for an action to rescind a contract. 6here #ust it "e filed> ANS61R< R C% since the action is not capa"le of pecuniary esti#ation. PR=:514< Plaintiff files a perfor#ance of a contract P;/%///.//. 6here do you file> case for specific to sell involvin$

irrespective of whether the #otion for its ad#ission% if necessary% is denied "y the court. C: v. CA H6here the filin$ of the initiatory pleadin$ is not acco#panied "y pay#ent of the doc@et fee% the court #ay allow pay#ent of the fee within a reasona"le ti#e "ut in no case "eyond the applica"le prescriptive or re$le#entary period.N he prescriptive period #entioned here refers to the period within which a specific action #ust "e filed. *n this case% the clai# for da#a$es arisin$ out of an in!ury of P:PAs ri$hts was filed "eyond the four2year e9tinctive prescriptive period under Article 113.% Civil Code. 4anuel v. Alfeche his was the li"el case filed "y the Sha"u ?ueen a$ainst the Panay News. *n case the civil lia"ility is instituted with the cri#inal action% the followin$ rules shall apply in assessin$ the filin$ fees% (citin$ 'eneral v. Clavall+ (a+ when the a#ount of da#a$es% other than actual% is alle$ed% then filin$ fees should "e paid. ("+ if there is a clai# for da#a$es "ut the a#ount is not specified% then filin$ fees shall constitute a lien on the !ud$#ent and filin$ fees need not "e paid. 'o v on$. *n this case% the court allowed for the pay#ent of doc@et fees in a sta$$ered "asis% for as lon$ as the full pay#ent was #ade within reasona"le ti#e "ut not "eyond the prescriptive period. 6hen is an action said to have "een co##enced> An action co##ences fro# the filin$ of the ori$inal co#plaint and the pay#ent of the prescri"ed doc@et fees. A#en Notes .12 No# 630

ANS61R< R C. he action is for specific perfor#ance which is not capa"le of pecuniary esti#ation. PR=:514< Plaintiff files a case for specific perfor#ance of a contract to sell involvin$ a P;/%//.// with alternative prayer of P;/%///.// worth of da#a$es. 6here do you file> ANS61R< wo scenarios are conte#plated< 1. if the alternative prayer can "e $ranted without $rantin$ the #ain prayer% the case is capa"le of pecuniary esti#ation and should therefore "e filed in the 4 C% since the a#ount of P;/%///.// is within the !urisdictional li#its of the 4 C. &. 7owever% if the alternative prayer cannot "e $ranted without first deter#inin$ the #ain prayer% the case re#ains incapa"le of pecuniary esti#ation% and therefore #ust "e filed with the R C. Co##ence#ent of an Action (Rule 1% Sec.;+ 6hen is an action said to have "een co##enced> A civil action is co##enced "y the filin$ of the ori$inal co#plaint in court. *f an additional defendant is i#pleaded in a later pleadin$% the action is co##enced with re$ard to hi# on the date of the filin$ of such later pleadin$%

7ernande8 v Rural :an@ his was a personal action "y 7ernande8 spouses to co#pel Rural :an@ to accept a chec@ in pay#ent of their P.%/// loan and to cancel #ort$a$e on their land. 6hen the 7ernande8 spouses filed suit% the li-uidation of the "an@ was already pendin$. *t was so#ewhat stran$e for the spouses to have #ailed the chec@ to the court. An action to foreclose a #ort$a$e on real property is a real action since it affected the ownerAs title and ri$ht to the property. )enue was i#properly laid since the action was filed in CC*25ipa City despite the fact that the property #ort$a$ed was in ?ue8on City and the spouses lived in Cu"ao% ?ue8on City. 4anuel v. Alfeche ,elia 4anuel was alle$ed to "e the #illionaire Sha"u ?ueen "y the Panay News. ,elia "rou$ht a li"el suit a$ainst Panay News.

2" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA (e+ hat there is not+er ction pendin$ "etween the sa#e parties for the sa#e causeK (f+ hat the cause of action is "arred "y a prior *ud$'ent or "y the st tute o& !i'it tionsK

'1N1RA5 RB51< A civil action is dee#ed instituted in a cri#inal action% thus no filin$ fees are re-uired. 1OC1P *=N (cVf 'eneral v. Clavall+< 1. when the a#ount of da#a$es% other than actual% is alle$ed "y the co#plainant then the filin$ fees should "e paid. &. if there is a clai# for da#a$es "ut the a#ount is not specified% then the filin$ fees should constitute a lien on the !ud$#ent and the filin$ fee need not "e paid. C use o& Action RB51 & CABS1 =C AC *=N Ordinar" civil actions& basis o!.
1very ordinary civil action #ust "e "ased on a cause of action. (Sec. 1% Rule &+

Joinder of Parties. (Rule 0% Sec. .+
All persons in who# or a$ainst who# any ri$ht to relief in respect to or arisin$ out of the s 'e tr ns ction or series o& tr ns ctions is alle$ed to e9ist% whether !ointly% severally% or in the alternative% #ay% e9cept as otherwise provided in these Rules% !oin as plaintiffs or "e !oined as defendants in one co'p! int% where ny -uestion o& ! " or & ct co''on to !! suc+ p! inti&&s or to !! suc+ de&end nts ' y rise in t+e ction K "ut the court #ay #a@e such orders as #ay "e !ust to prevent any plaintiff or defendant fro# "ein$ e#"arrassed or put to e9pense in connection with any proceedin$s in which he #ay have no interest.

Cause o! action& de!ined'
A cause of action is the act or o#ission "y which a party violates a ri$ht of another. (Sec. &% Rule &+

Celipe v. 5euterio A contestant has no ri$ht to the pri8e% unless and until he or she is declared winner "y the "oard of referees or !ud$es. A wron$% under a cause of action% refers to a violation of a ri$ht. CVf da#nu# a"s-ue in!uria D da#a$es without le$al in!ury. Santia$o v. :autista Co##ittee of teachers% who were tas@ed with ran@in$ the honor students% was not e9ercisin$ -uasi2!udicial functions as it was not deter#inin$ what the law was. Sa$rada v. NAC=C= Sa$rada filed suit a$ainst NAC=C= for sei8ure of lands that Sa$rada previously owned prior to the Japanese occupation. NAC=C= was not lia"le under any of the sources of o"li$ation< was not $uilty of an offense% was not ne$li$ent and was not privy to any contract. 4a2ao Su$ar Central v. :arrios his was an action to recover #oney "efore the out"rea@ of the war. he co#plaint did not state a cause of action% as there was no act or o#ission of the defendant in violation of the plaintiffAs ri$ht due to the prevailin$ 4oratoriu# 5aw that had suspended the pay#ent of de"ts. here can "e no action to co#pel reco$nition of a de"t which is not yet due% "ecause it would unnecessarily re-uire the de"tor to "ear incidental e9penses. Bnion 'lass v. S1C Bnion 'lass should "e !oined in the action "etween Pioneer 'lass and ,:P "ecause Bnion 'lass was in possession of the $lass plant su"!ect of the dacion en pa$o a$ree#ent "etween Pioneer 'lass and ,:P. Re$ ! do Notes. 6hat is a cause of action>

One suit !or a single cause o! action.
A party #ay not institute #ore than one suit for a sin$le cause of action. (Sec. 0% Rule &+

Splitting a single cause o! actionB e!!ect o!'
*f two or #ore suits are instituted on the "asis of the sa#e cause of action% the filin$ of one or a !ud$#ent upon the #erits in any one is availa"le as a $round for the dis#issal of the others. (Sec. 3% Rule &+

Joinder o! causes o! action'
A party #ay in one pleadin$ assert% in the alternative or otherwise% as #any causes of action as he #ay have a$ainst an opposin$ party% su"!ect to the followin$ conditions< (a+ he party !oinin$ the causes of action shall co#ply with the rules on !oinder of partiesK ("+ he !oinder shall not include special civil actions or actions $overned "y special rulesK (c+ 6here the causes of action are "etween the sa#e parties "ut pertain to different venues or !urisdictions% the !oinder #ay "e allowed in the Re$ional rial Court provided one of the causes of action falls within the !urisdiction of said court and the venue lies thereinK and (d+ 6here the clai#s in all the causes of action are principally for recovery of #oney% the a$$re$ate a#ount clai#ed shall "e the test of !urisdiction. (Sec. ;% Rule &+

Misjoinder o! causes o! action'
4is!oinder of causes of action is not a $round for dis#issal of an action. A #is!oined cause of action #ay% on #otion of a party or on the initiative of the court% "e severed and proceeded with separately. (Sec. .% Rule &+

1ffect of Splittin$ a Cause of Action. 'rounds for 4otion to ,is#iss an Action (Rule 1.% Section 1 (e+% (f++
6ithin the ti#e for "ut "efore filin$ the answer to the co#plaint or pleadin$ assertin$ a clai#% a #otion to dis#iss #ay "e #ade on any of the followin$ $rounds<

29 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

A cause of action is the act or o#ission "y which a party violates a ri$ht of another. *t is the delict or wron$ful act or o#ission co##itted "y the defendant in violation of the pri#ary ri$ht of the plaintiff. he sin$leness of a cause of action lies in the sin$leness of the delict or wron$ violatin$ the ri$hts of one person. hese pertain to ri$hts under su"stantial law that are violated. 6hat is splittin$ a sin$le cause of action> Splittin$ a cause of action is the act of divin$ a sin$le cause of action% clai# or de#and into two or #ore parts% and "rin$in$ suit for one of such parts only% intendin$ to reserve the rest for another separate action. he purposes of the rule are to avoid harass#ent and ve9ation to the defendant and to o"viate #ultiplicity of suits. 6hat is the re#edy for splittin$ a cause of action> 6here a sin$le cause of action has "een split% the re#edy of the defendant is to #ove to dis#iss under Rule 1. (4otion to ,is#iss+ on the $round that there is another action pendin$ "etween the sa#e parties for the sa#e cause% or litis pendentia (Rule 1. Sec 1(e++K or if the first action has already "een ter#inated% on the $round of re !udicata (Rule 1. Sec 1(f++. *n 4aAa# conyo accent% HitAs when you #a@e the action tin$iN.  Can a non2pay#ent of #ort$a$e loan "e split into two action> No% there cannot "e one action for pay#ent of de"t and another action for the foreclosure of the #ort$a$e. here is "ut one cause of action. 6hat is a !oinder of cause of action> he !oinder of a cause of action in one co#plaint is the assertion of a party of as #any causes of action as he #ay have a$ainst an opposin$ party. he purpose of the !oinder of causes of action is to avoid #ultiplicity of suits. he !oinder of cause of action is #erely per'issi#e. he plaintiff can always file separate action for each cause of action. 6hat are the re-uisites for the *oinder o& c use o& ction> 1. hat the !oinder of cause of action co#plies with the rules of !oinder of parties. &. hat the !oinder of parties does not include any special civil actions. (i.e. one cannot !oin an action for an insolvency proceedin$+ 0. 6here the causes of action are "etween the sa#e parties "ut pertain to different venues or !urisdictions% the !oinder #ay "e allowed in the Re$ional rial Court provided one of the causes of

action falls within the !urisdiction of said court and the venue lies thereinK and 3. 6here the clai#s in all the causes of action are principally for recovery of #oney% the a$$re$ate a#ount clai#ed shall "e the test of !urisdiction. 6hat are the re-uisites for a *oinder o& p rties> 1. action is "ased on the sa#e transaction or series of transactions. &. the controversy involves a co##on -uestion of law or fact. 0. the !oinder of parties is allowed "y law. *s !oinder of causes of action different fro# !oinder of parties> Joinder of causes of action refer to two or #ore person% each havin$ a cause of action a$ainst another person% !oin their causes of action in one co#plaint or where the plaintiff havin$ several causes of action% each a$ainst several persons% !oin theses causes of action in one co#plaint. Joinder of parties properly applies when two or #ore persons havin$ a !oint ri$ht in one clai#% or are !ointly lia"le in one clai#. 6hat is a #is!oinder of causes of action> *n cases of #is!oinder of causes of action% the cause of action is erroneously !oined to each other. *n such cases% the cause of action erroneously !oined need only "e separated and dis#issed without% affectin$ the action with re$ard to the other cause or causes of action. A #is!oinder of causes of action is not a $round for dis#issal of an action. here is no provision on or sanction a$ainst a non2!oinder of separate causes of action since the plaintiff needs only a sin$le cause of action to #aintain an action. his is in full accord with the idea that !oinder of causes of action is #erely per#issive.

A#en

Notes ./5 No# 630

6hat are the ele#ents of a cause of action> 1. le$al ri$ht of the plaintiff &. correlative o"li$ation of the defendant 0. act or o#ission of the defendant in violation of said ri$ht. 'ive an e9a#ple of a splittin$ of a cause of action. *n a case of contract to sell a car% the vendor chan$es his #ind and sells the car to so#eone else. *f the vendee institutes one suit for specific perfor#ance to co#pel vendor to sell hi# the car and another suit for da#a$es% then the vendee is said to have split his cause of action. here is one cause of action (the failure of the vendor to sell the car to the vendee+ "ut two suits.

30 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

he cause of action refers to the act or o#ission. A sin$le cause of action can $ive rise to #any reliefs. 'ive an e9a#ple of !oinder of causes of action. A !oinder of causes of action happens when there are several causes of action a$ainst a sin$le opposin$ party. An e9a#ple would "e in a case for a transportation accident. (cVf #ariti#e trade under Prof. Ca#acho+. 6hen a passen$er is transported "y a co##on carrier li@e a !eepney and throu$h the driverAs ne$li$ence the passen$er is in!ured due to a collision with a truc@% then the accident $ives rise to two types of action D one for a "reach of transportation contract with the co##on carrier ("reach of contract+ and another as well for da#a$es arisin$ fro# the ne$li$ence of the driver (-uasi2delict under Article &17. and &18/ of the Civil Code+. 6hat is #eant "y HtransactionN and Ha series of transactionsN in a !oinder of causes of action or !oinder of parties> A transaction refers to an event and it does not necessarily pertain to a contract. A vehicular accident% althou$h there is no contract% $ives rise a transaction under a -uasi2delict. Series of transaction refer to chronolo$ically successive events. H'B5A N *NC*,1N . (4aAa#As favorite e9a#ple+ A law student suffers fro# a heart condition and is fre-uently stressed fro# his civ pro case load. Not @nowin$ of his condition% his "loc@#ate hides "ehind the door to surprise hi#. 6hen the stressed out law student enters the classroo#% his pran@ster class#ate surprises hi#. Startled% the surprised law student suffered a #ild heart attac@ and was rushed to the BP *nfir#ary. 7e had to "e hospitali8ed for 7 days% paid for his hospital "ills% and #issed his favorite civ pro class. 7e sues the pran@ster class#ate in court for da#a$es. 6ill the suit prosper> his is a case of da#nu# a"s-ue in!uria or loss% hurt or har# without in!ury in the le$al sense% that is without such "reach of duty as is redressi"le "y a le$al action. here is a loss or in!ury "ut it does not $ive rise to an action for da#a$es a$ainst the person causin$ it. Accordin$ to #aAa#% pran@s are part of the Cilipino culture. Paano @aya @un$ si #aAa# yun $inulat> ,ifferentiate a -uestion of fact and a -uestion of law. A -uestion of fact pertains to what had happened. *t points to an issue involvin$ the resolution of a factual dispute. (i.e. whether or not an vehicular accident did occur+ A -uestion of law pertains to -uestions concernin$ the le$al effects to "e $iven an undisputed set of facts or an issue which involves the application or interpretation of a law. (i.e. havin$

esta"lished that there was a vehicular accident% who a#on$ the parties should "e lia"le+ A#en Notes .12 No# 630

*n reference to the sore losers cases of Celipe v. 5euterio (oratorical contest+ and Santia$o v. :autista (third honors @id+% were the cases dis#issed for lac@ of cause of action or lac@ of !udicial power or "oth> Accordin$ to 4aAa#% the court #uddled the "asis for not ta@in$ co$ni8ance of the cases presented. *f the "asis was lac@ of !udicial power% then the courtAs ar$u#ent is pre#ised on the e9ercise of !udicial power% as provided "y the constitution% which was confined to decidin$ actual controversies of ri$hts arisin$ fro# law or in instances of a pu"lic officerAs $rave a"use of discretion. *n cases of oratorical% "eauty and other contests% there is no law that is said to apply as it is a private affair. *f the "asis is lac@ of cause of action% then the ar$u#ent would "e that contestants in such co#petition have no ri$ht to de#and the pri8e and the or$ani8ers have no o"li$ation to $ive the pri8e% unless one is declared a winner. =nly when a contestant is declared a winner% that a vested ri$ht arises to the pri8e. Another e9a#ple would "e "ettin$ in a lotteryK a "ettor cannot de#and a ri$ht to the pri8e "y #ere purchase of the tic@et "ecause a ri$ht vests upon the "ettor only upon the winnin$ of his tic@et. here was no le$al o"li$ation that arose in favor of the contestants. (o"li$ations are derived fro# law% contract% -uasi2contract% delict% -uasi2 delict+. A#en Notes .14 No# 630

Celipe v 5euterio he case of the disputed oratorical contest were Celipe did not win. he "asis for the action was the faulty addition of one of the !ud$es of CelipeAs score. *n this case% what is the act or o#ission "y which CelipeAs ri$ht was violated> 6hat was the le$al o"li$ation which $ave rise to CelipeAs ri$ht> Santia$o v :autista Co##ittee of teachers which decided the honors placed to $raduates of a pri#ary school. Bnder the 1987 Constitution% every $overn#ent "ody was su"!ect to review. cVf Rule 30 Sa$rada v NAC=C= his case involved land sold durin$ the Japanese occupation. Bnder the radin$ with the 1ne#y Act% all ene#y property was confiscated "y the BS.

31 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

Sa$radaAs clai# for unpaid rentals used on their land was without "asis. Civil procedure co#es under the #andate of !udicial power. 4aAao Su$ar Central v :arrios his case involved the application of the de"t #oratoriu# after the war to de"ts. he cause of action #ust e9ist "y the ti#e the co#plaint was filed. =ne would not file a co#plaint if there was no cause of action precedin$ that would !ustify the filin$ of the action. (4aAa# e9plains< @aya @a n$a #a$dede#anda @asi #ay nan$yari.+ Bnder the de"t #oratoriu# law% the cause of action e9isted% since the de"t "eca#e due as per a$ree#ent of the parties. 7owever% the enforcea"ility of a creditorAs clai# for a de"t a$ainst the de"tor was suspended due to the #oratoriu# law. Suspension of the cause of action is different fro# the suspension of the enforcea"ility of the cause of action. he latter descri"es the situation in this case% where the le$al o"li$ation still e9ists "ut the creditor cannot #ove for its e9ecution% unless the de"t #oratoriu# i#posed "y the $overn#ent is lifted. he cause of action did arise "ut its enforcea"ility was suspended "y law. (4aAa# co##ents that the decision "y the SC in this case was ha8y "ecause the court said there was N= cause of action% which is to "e distin$uished fro# that the enforcea"ility of the action was suspended.+ Bnion 'lass v S1C his involved a case of an intra2corporate dispute "etween stoc@holders. he SC said that even if Bnion 'lass had possession of the $lass plant of Pioneer 'lass% the action filed in the S1C was "etween stoc@holders of Pioneer. Since there was no intra2corporate relation "etween the stoc@holders and Bnion 'lass% Bnion 'lass should not "e !oined in the action. S 4aAa# is -uic@ to point out that under the new rules% the rulin$ in Bnion 'lass has "een overturned as the R C now has !urisdiction of intra2corporate disputes. R C is #ore co#petent than S1C officers "ecause S1C officers are ad#inistrative officers and not o"!ective and @nowled$ea"le ar"iters of disputes.

32 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

I>. P rties to Ci#i! Actions .Ru!e 20 A. Re-uisites 6ho #ay "e parties>
=nly n tur ! or *uridic ! persons% or entities ut+oriKed %y ! " #ay "e parties in a civil action. he ter# Ip! inti&&I #ay refer to the clai#in$ party% the counter2clai#ant% the cross2clai#ant% or the third (fourth% etc.+ party plaintiff. he ter# Ide&end ntI #ay refer to the ori$inal defendin$ party% the defendant in a counterclai#% the cross2defendant% or the third (fourth% etc.+ party defendant. (Sec. 1% Rule 0+

S@yvision% since the a$ree#ent to set2off S@yvision loan with )elardeAs retire#ent "enefits was su"!ect to the approval of S@yvision. :. Jinds of Parties Representatives as parties.
6here the action is allowed to "e prosecuted or defended "y a representative or so#eone actin$ in a fiduciary capacity% the "eneficiary shall "e included in the title of the case and shall "e dee#ed to "e the real party in interest. A representative #ay "e a trustee of an e9press trust% a $uardian% an e9ecutor or ad#inistrator% or a party authori8ed "y law or these Rules. An a$ent actin$ in his own na#e and for the "enefit of an undisclosed principal #ay sue or "e sued without !oinin$ the principal e9cept when the contract involves thin$s "elon$in$ to the principal. (Sec. 0% Rule 0+

Juasin$ 7ardware v. 4endo8a Juasin$ 7ardware had no personality to sue "ecause it was neither a natural or !uridical person with capacity to sue. Juasin$ 7ardware was a sin$le proprietorship% which is a #ere for# of "usiness. he case should have "een filed in the na#e of the owner with the words Hdoin$ "usiness% as Juasin$ 7ardware.N 6hat is a party in interest> A real party in interest is the party who stands to "e "enefited or in!ured "y the !ud$#ent in the suit% or the party entitled to the avails of the suit. Bnless otherwise authori8ed "y law or these Rules% every action #ust "e prosecuted or defended in the na#e of the real party in interest. (Sec. &% Rule 0+ Joya v. PC'' his was an action filed "y a $roup of art lovers to en!oin the PC'' fro# pushin$ throu$h with an auction of paintin$s and silverware. he art lovers had no le$al standin$% which is defined as personal and su"stantial interest in the case such that the party has sustained or will sustain direct in!ury as a result of a $overn#ent act. (#aterial interest+ =posa v Cactoran. Class suit of #inors and their parents a$ainst ,1NR Secretary to stop issuance of ti#"er license a$ree#ents. Class suit was allowed to represent even $enerations yet un"orn. (*nter$enerational responsi"ility+ C15*C*AN=< he court reco$ni8ed a "eneficiariesA ri$ht of action in the field of environ#ental protection. )elarde v. 5ope8 Counterclai# of )elarde should not "e a$ainst 5ope8 "ut a$ainst S@yvision% "ecause )elarde was an e#ployee of S@yvision and S@yvision had a separate corporate personality as a su"sidiary fro# the parent co#pany of 5ope8 'roup. he tortuous #anner of forced retire#ent is attri"uta"le to

Spouses as parties.

7us"and and wife shall sue or "e sued !ointly% e9cept as provided "y law. (Sec. 3% Rule 0+ 1ach spouse shall own% dispose of% possess% ad#inister and en!oy his or her own separate estate% without need of the consent of the other. o each spouse shall "elon$ all earnin$s fro# his or her profession% "usiness or industry and all fruits% natural% industrial or civil% due or received durin$ the #arria$e fro# his or her separate property. (Article 13;% Ca#ily Code+ A spouse of a$e #ay #ort$a$e% encu#"er% alienate or otherwise dispose of his or her e9clusive property% without the consent of the other spouse% and appear alone in court to liti$ate with re$ard to the sa#e. (Article 111% Ca#ily Code+

4inor or inco#petent persons.

A #inor or a person alle$ed to "e inco#petent% #ay sue or "e sued% with the assistance of his father% #other% $uardian% or if he has none% a $uardian ad lite#. (Sec. ;% Rule 0+ A$e of #a!ority was lowered to 18 years of a$e "y RA .8/9. Any #ale or fe#ale of the a$e of ei$hteen years or upwards not under any of the i#pedi#ents #entioned un Articles 07 and 08% #ay contract #arria$e. (Article ;% Ca#ily Code+

1ntity without !uridical personality as defendant.

6hen two or #ore persons not or$ani8ed as an entity with !uridical personality enter into a transaction% they #ay "e sued under the na#e "y which they are $enerally or co##only @nown. *n the answer of such defendant% the na#es and addresses of the persons co#posin$ said entity #ust all "e revealed. (Sec. 1;% Rule 0+

Bn@nown identity or na#e of defendant.
6henever the identity or na#e of a defendant is un@nown% he #ay "e sued as the un@nown owner% heir% devisee% or "y such other desi$nation as the case #ay re-uireK when his identity or true na#e is discovered% the pleadin$ #ust "e a#ended accordin$ly. (Sec. 13% Rule 0+

Bnwillin$ co2plaintiff.

*f the consent of any party who should "e !oined as plaintiff cannot "e o"tained% he #ay "e #ade a

33 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 defendant and the reason therefor shall "e stated in the co#plaint. (Sec. 1/% Rule 0+

JONATHAN PAMPOLINA plaintiff or defendant fro# "ein$ e#"arrassed or put to e9pense in connection with any proceedin$s in which he #ay have no interest. (Sec. .% Rule 0+

*ndi$ent Party.
A party #ay "e authori8ed to liti$ate his action% clai# or defense as an indi$ent if the court% upon an e9 parte application and hearin$% is satisfied that the party is one who has no #oney or property sufficient and availa"le for food% shelter and "asic necessities for hi#self and his fa#ily. Such authority shall include an e9e#ption fro# pay#ent of doc@et and other lawful fees% and of transcripts of steno$raphic notes which the court #ay order to "e furnished hi#. he a#ount of the doc@et and other lawful fees which the indi$ent was e9e#pted fro# payin$ shall "e a lien on any !ud$#ent rendered in the case favora"le to the indi$ent% unless the court otherwise provides. Any adverse party #ay contest the $rant of such authority at any ti#e "efore !ud$#ent is rendered "y the trial court. *f the court should deter#ine after hearin$ that the party declared as an indi$ent is in fact a person with sufficient inco#e or property% the proper doc@et and other lawful fees shall "e assessed and collected "y the cler@ of court. *f pay#ent is not #ade within the ti#e fi9ed "y the court% e9ecution shall issue for the pay#ent thereof% without pre!udice to such other sanctions as the court #ay i#pose. (Sec. &1% Rule 0+

Clores v. 4allare2Philipps his was a case involvin$ two separate purchases of truc@ tires "y two distinct entities fro# one vendor% Clores. here was a #is!oinder of parties "ecause each had a separate and distinct cause of action. he totality of clai#s rule applies only when a suit !oins tow or #ore causes of actions that arise out of the sa#e transaction or series of transactions. *f !oinder of causes of action arises out of the sa#e transaction or co##on -uestion% then the totality of all the clai#s is the !urisdictional testK if there are different causes of action% each clai# shall "e the test of !urisdiction. Non2!oinder of necessary parties to "e pleaded.

Co#pulsory !oinder of indispensa"le parties.

Parties in interest without who# no final deter#ination can "e had of an action shall "e !oined either as plaintiffs or defendants. (Sec. 7% Rule 0+

Arcelona v. CA he nonresident "rother% sister and wife of the deceased "rother should have "een i#pleaded in the action% as they were co2owners of an indivisi"le pond and as such were indispensa"le parties. A tenant who fails to i#plead all co2owners cannot esta"lish with finality his tenancy over the entire co2owned land. Cere8o v. uason he driver of the vehicle in a car accident was not an indispensa"le party in this case% since the action was for the ne$li$ence of the e#ployer. An e#ployerAs lia"ility for -uasi2delict is pri#ary and direct% unli@e in a cri#inal action where the e#ployerAs lia"ility is su"sidiary. Necessary party.
A necessary party is one who is not indispensa"le "ut who ou$ht to "e !oined as a party if co#plete relief is to "e accorded as to those already parties% or for a co#plete deter#ination or settle#ent of the clai# su"!ect of the action. (Sec. 8% Rule 0+

6henever in any pleadin$ in which a clai# is asserted a necessary party is not !oined% the pleader shall set forth his na#e% if @nown% and shall state why he is o#itted. Should the court find the reason for the o#ission un#eritorious% it #ay order the inclusion of the o#itted necessary party if !urisdiction over his person #ay "e o"tained. he failure to co#ply with the order for his inclusion% without !ustifia"le cause% shall "e dee#ed a waiver of the clai# a$ainst such party. he non2inclusion of a necessary party does not prevent the court fro# proceedin$ in the action% and the !ud$#ent rendered therein shall "e without pre!udice to the ri$hts of such necessary party. (Sec. 9% Rule 0+

Alternative defendants.
6here the p! inti&& is uncert in $ inst "+o o& se#er ! persons +e is entit!ed to re!ie& % he #ay !oin any or all of the# as defendants in the alternative% !t+ou$+ ri$+t to re!ie& $ inst one ' y %e inconsistent "it+ ri$+t o& re!ie& $ inst t+e ot+er. (Sec. 10% Rule 0+

Class suit.

6hen the su"!ect #atter of the controversy is one of co''on or $ener ! interest to #any persons so nu'erous that it is i#practica"le to !oin all as parties% nu'%er o& t+e' "+ic+ t+e court &inds to %e su&&icient!y nu'erous nd represent ti#e as to fully protect the interests of all concerned #ay sue or defend for the "enefit of all. Any party in interest shall have the ri$ht to intervene to protect his individual interest. (Sec. 1&% Rule 0+

Per#issive !oinder of parties.
All persons in who# or a$ainst who# any ri$ht to relief in respect to or arisin$ out of the s 'e tr ns ction or series o& tr ns ctions is alle$ed to e9ist% whether !ointly% severally% or in the alternative% #ay% e9cept as otherwise provided in these Rules% *oin s p! inti&&s or %e *oined s de&end nts in one co'p! int % where ny -uestion o& ! " or & ct co''on to all such plaintiffs or to all such defendants #ay arise in the actionK "ut the court #ay #a@e such orders as #ay "e !ust to prevent any

Newswee@ v. *AC his was a class action for li"el "rou$ht "y an association of su$ar planters a$ainst Newswee@ for an article a"out the "rutality and e9ploitation of su$ar can la"orers. he action was not a proper class suit "ecause each plaintiff has a separate and distinct reputation within the co##unity. *n a li"el case% the person upon who# the defa#atory re#ar@s are

34 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

ai#ed should "e identified and individuali8ed% in order that the readers can identify the#. Notice to the Solicitor 'eneral. *n any action involvin$ the # !idity o& ny tre ty, ! ", ordin nce, e)ecuti#e order, presidenti ! decree, ru!es or re$u! tions % the court% in its discretion% #ay re-uire the appearance of the Solicitor 'eneral who #ay "e heard in person or throu$h a representative duly desi$nated "y hi#. (Sec. &&% Rule 0+ C. 1ffects 4is!oinder and non2!oinder of parties.
Neit+er 'is*oinder nor nonA*oinder o& p rties is $round &or dis'iss ! o& n ction . Parties #ay "e dropped or added "y order of the court on #otion of any party or on its own initiative at any sta$e of the action and on such ter#s as are !ust. Any clai# a$ainst a #is!oined party #ay "e severed and proceeded with separately. (Sec. 11% Rule 0+

Cather filed an action for da#a$es for the death of his deaf2#ute son% who died while ali$htin$ fro# a "us of :icol ransport Co#pany. An a$ree#ent was entered into "etween the father and his son in law% in which the father assi$ned his interest in the case to his son in law. After the father had assi$ned his interest in the case to his son in law% father continued the suit as a trustee. he son in law re#ained the real party in interest and su"stitution was a #ere for#ality. 'o!o v. 'oyala :efore a#endin$ of the co#plaint in case of death of the plaintiff% there #ust "e a su"stitution order "y the court. An order to a#end the co#plaint "efore proper su"stitution of parties if void and i#poses no duty to co#ply.
*n case of any transfer of interest% the action #ay "e continued "y or a$ainst the ori$inal party% unless the court upon #otion directs the person to who# the interest is transferred to "e su"stituted in the action or !oined with the ori$inal party. (Sec. 19% Rule 0+

ransfer of interest.

Supervenin$ *nco#petency or *ncapacity.

*f a party "eco#es inco#petent or incapacitated% the court% upon #otion with notice% #ay allow the action to "e continued "y or a$ainst the inco#petent or incapacitated person assisted "y his le$al $uardian or $uardian ad lite#. (Sec. 18% Rule 0+

,eath or separation of a party who is a pu"lic officer.
6hen a pu"lic officer is a party in an action in his official capacity and durin$ its pendency dies% resi$ns% or otherwise ceases to hold office% the action #ay "e continued and #aintained "y or a$ainst his successor if% within thirty (0/+ days after the successor ta@es office or such ti#e as #ay "e $ranted "y the court% it is satisfactorily shown to the court "y any party that t+ere is su%st nti ! need &or continuin$ or ' int inin$ it and that t+e successor dopts or continues or t+re tens to dopt or continue t+e ction o& +is predecessor. :efore a su"stitution is #ade% the party or officer to "e affected% unless e9pressly assentin$ thereto% shall "e $iven reasona"le notice of the application therefor and accorded an opportunity to "e heard. (Sec. 17% Rule 0+

,eath of partyK duty of counsel.
6henever a party to a pendin$ action dies% and the clai# is not there"y e9tin$uished% it shall "e the duty of his counsel to infor# the court within thirty (0/+ days after such death of the fact thereof% and to $ive the na#e and address of his le$al representative or representatives. Cailure of counsel to co#ply with this duty shall "e a $round for disciplinary action. he heirs of the deceased #ay "e allowed to "e su"stituted for the deceased% without re-uirin$ the appoint#ent of an e9ecutor or ad#inistrator and the court #ay appoint a $uardian ad lite# for the #inor heirs. he court shall forthwith order said le$al representative or representatives to appear and "e su"stituted within a period of thirty (0/+ days fro# notice. *f no le$al representative is na#ed "y the counsel for the deceased party% or if the one so na#ed shall fail to appear within the specified period% the court #ay order the opposin$ party% within a specified ti#e% to procure the appoint#ent of an e9ecutor or ad#inistrator for the estate of the deceased and the latter shall i##ediately appear for and on "ehalf of the deceased. he court char$es in procurin$ such appoint#ent% if defrayed "y the opposin$ party% #ay "e recovered as costs. (Sec. 1.% Rule 0+ 6hen the action is for recovery of #oney arisin$ fro# contr ct% e9press or i#plied% and the de&end nt dies %e&ore entry o& &in ! *ud$'ent in t+e court in "+ic+ t+e ction " s pendin$ t t+e ti'e o& suc+ de t+% it shall not "e dis#issed "ut shall instead "e allowed to continue until entry of final !ud$#ent. A favora"le !ud$#ent o"tained "y the plaintiff therein shall "e enforced in the #anner especially provided in these Rules for prosecutin$ clai#s a$ainst the estate of a deceased person. (Sec. &/% Rule 0+

Re$ ! do Notes= Bnder the Rules of Court% who #ay "e parties to an action> 1. Natural persons. &. Juridical persons. 0. 1ntities authori8ed "y law. 6ho is a party in interest> A real party in interest is the party who stands to "e "enefited or in!ured "y the !ud$#ent in the suit or the party entitled to the avails of the suit. (i.e. in an action for e!ect#ent% the owner of the property is a real party in interest+. he underlyin$ notion "ehind the re-uire#ent of the real party in interest is to protect the party who pays or recovers accordin$ to the !ud$#ent. ,ue process de#ands that no !ud$#ent can "ind one who is not a party. As such% parties to a

,el Castillo v. Jay#alin
35 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

case are entitled to notice as to orders% pleadin$s% etc. hey can also ta@e part in the proceedin$s. *f the suit is "rou$ht a$ainst a party who is not a real party in interest% what should one do> *f the action is prosecuted "y one who is not the real party in interest% then the action #ay well "e #oot and would then not "e an actual controversy involvin$ ri$hts which are le$ally de#anda"le and enforcea"le and therefore outside the scope of the !udicial power e9ercisa"le "y our courts. (Art )***% Sec.1% 1987 Constitution+. Courts are not allowed to ad!udicate #oot and hypothetical case. *f the suit is not "rou$ht in the na#e of or a$ainst the real party in interest% a #otion to dis#iss #ay "e filed on the $round that the co#plaint states no cause of action. (Rule 1. Sec 1($++. Standin$ in an action is part of the cause of action. 6hat are the different #odes of "eco#in$ a party in a civil suit> 1. 6hen you sue. &. 6hen you are sued. 0. *#pleaded throu$h a third party co#plaint. 3. *ntervention. ;. ,efendant on a counterclai#% "rou$ht in as a new party. Should a representative i#plead his principal in the suit> Ges. he i#pleadin$ of the "eneficiary as a party to the suit is now a #andatory re-uire#ent and not a discretionary procedure. Bnless the action is authori8ed to "e "rou$ht in the na#e of the representative% the action #ust "e "rou$ht in the na#e of the real party in interest% otherwise% it #ay "e dis#issed for failure to state a cause of action. 6hat are the different classes of parties in interest> ndispensable Parties' hose who without who# no final deter#ination can "e had of an action. (Sec 7+. *f a !ud$#ent in the action cannot "e rendered without affectin$ a party% then this party is indispensa"le% as in an action "y a lessor a$ainst a su"2lessee the su"lessor #ay well "e an indispensa"le party. 2ecessar" Parties. hose who are not indispensa"le parties "ut ou$ht to "e parties if co#pleter relief is to "e accorded as to those already parties% or for a co#plete deter#ination or settle#ent of the clai# su"!ect of the action. (Sec 8+ i.e. !unior #ort$a$ee who% if not #ade a party to an action for foreclosure of the real estate #ort$a$e% will si#ply not "e "ound "y the !ud$#ent therein "ut his non2!oinder will not preclude the action. 1epresentative Parties. hose who act in a representative capacity for another. (Sec 0+. *.e. la"or unions

Pro ;orma Parties. hose who are re-uired to "e !oined as co2parties in suits "y or a$ainst another party as #ay "e provided "y applica"le su"stantive law or procedural rule (Sec 3+ Also @nown as no#inal parties or parties who are !oined as plaintiffs or defendants% not "ecause they have any real interest in the su"!ect #atter or "ecause any relief is de#anded a$ainst the#% "ut #erely "ecause the technical rules of pleadin$ re-uire their presence on the record. *.e. spouses in so#e cases. @uasi Parties. hose in whose "ehalf a class or representative suit is "rou$ht. (Sec 17+. Parties who were not initially and for#ally pleaded as ori$inal parties to the case% "ut later "ound the#selves to co#ply with the ter#s of a !ud$#ent on co#pro#ise rendered therein #ay also "e considered as -uasi parties in said case. (Rodri$ue8 v Ali@pala% 'R No. 5208013% June &;% 1973+ 6hen can the wife "e sued alone> Art' ++0 Civil Code. he hus"and #ust "e !oined in all suits "y or a$ainst the wife% e9cept< (1+ 6hen they are !udicially separatedK (&+ *f they have in fact "een separated for at least one yearK (0+ 6hen there is a separation of property a$reed upon in the #arria$e settle#entsK (3+ *f the ad#inistration of all the property in the #arria$e has "een transferred to her% in accordance with Articles 19. and 197K (;+ 6hen the liti$ation is "etween the hus"and and wifeK (.+ *f the suit concerns her paraphernal propertyK (7+ 6hen the action is upon the civil lia"ility arisin$ fro# a cri#inal offenseK (8+ *f the liti$ation is incidental to the profession% occupation or "usiness in which she is en$a$edK (9+ *n any civil action referred to in Articles &; to 0;K and (1/+ *n an action upon a -uasi2delict. *n the cases #entioned in Nos. 7 to 1/% the hus"and #ust "e !oined as a party defendant if the third para$raph of Article 1.0 is applica"le. (n+ *n a suit "y an inco#petent person% #ust there "e a !udicial declaration of inco#petence "efore his parents or $uardian can sue or "e sued throu$h the#> No. he suit can "e "rou$ht "y or a$ainst hi# personally "ut with the assistance of his parents or his $uardian. *t is sufficient that his inco#petency "e alle$ed in the correspondin$ pleadin$s and the trial court #ay pass upon the truth and effects thereof. 6hat are the re-uisites for per#issive !oinder of parties> 1. hat there e9ists in their favor or a$ainst the# a ri$ht of relief in respect or arisin$ out of the sa#e transaction or series of transaction.

3 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

&. here is a -uestion of law or fact co##on to all the plaintiffs or defendants. 0. Such !oinder is not otherwise proscri"ed "y the provisions of the Rules on !urisdiction and venue. 6hat is a #is!oinder of parties> 6hen any of the first two re-uire#ents for per#issive !oinder of parties is not satisfied% then there is a case of #is!oinder of parties. *s #is!oinder or non2!oinder of parties a $round for dis#issal> No. Any clai# a$ainst a #is!oined party #ay "e severed and proceeded with separately. *n case of non2!oinder of an indispensa"le party% the party who insists on his i#pleader #ay #ove for such !oinder. *s !oinder of causes of action different fro# !oinder of parties> Joinder of causes of action refer to two or #ore person% each havin$ a cause of action a$ainst another person% !oin their causes of action in one co#plaint or where the plaintiff havin$ several causes of action% each a$ainst several persons% !oin theses causes of action in one co#plaint. Joinder of parties properly applies when two or #ore persons havin$ a !oint ri$ht in one clai#% or are !ointly lia"le in one clai#. 6hat does Hseries of transactionsN #ean> Series of transactions #eans separate dealin$s with the parties "ut all of which dealin$s are directly connected with the sa#e type of su"!ect #atter of the suit. 6hat is the effect of the rule on totality of clai#s to !oinder of parties and !urisdiction of the court> 6here a co#plaint contained two causes of action each for a su# of #oney less than P1//%///.// owed "y the plaintiff to a different defendant and arisin$ fro# different and independent transactions% althou$h the total of "oth clai#s e9ceeds P1//%///.//% the Re$ional rial Court has no !urisdiction since the totality rule involvin$ the different parties% in Sec 00(1+ if :P 1&9 and Sec. 11 of the *nteri# Rules% is su"!ect to the re-uire#ents of !oinder of parties% one of which is that the ri$ht to relief arises out of the sa#e transaction or series of transactions. (Clores v 4allare2Philipps% et al% 'R No. ...&/% Septe#"er &3% 198.+ PR=:514< 1va Conda% 1.% is a #ovie actress. She went to a shootin$ in the !un$les of 4indanao. She was accidentally shot "y a hunter% so she was hospitali8ed% thus ta@en out of the picture. She "rou$ht an action a$ainst Re$al Cil#s% the #ovie production% and a$ainst the hunter. 6hat is her capacity to sue> Can she sue alone>

ANS61R< 1va Conda cannot sue alone. She has to "e !oined and assisted "y her father% #other or $uardian% since she is a #inor. *n the alternative. PR=:514< 1va Conda% is now 19 and #arried to her co2star. 6hile shootin$ for a different fil# in 4indoro% she was shot on the le$ "y a hunter. She is una"le to co#plete the #ovie and was replaced "y a risin$ starlet. 1va sues for tort. ,oes she have the capacity to sue> Can she sue alone% without her hus"and> ANS61R< Ges% she can sue alone without her hus"and% since the cause of action was in the e9ercise of her profession and it does not involve the con!u$al property of the spouses. PR=:514< *f 1va Conda sues "oth the hunter and the #ovie co#pany% there would "e 1 plaintiff with & defendants and & causes of action (tort and "reach of contract+. Should there "e a !oinder of causes of action under Rule &% Section ; (a+ ANS61R< =ne cannot have a !oinder of causes of action% if the parties are #is!oined. he parties are properly !oined "ecause there is the sa#e transaction and involves co##on -uestions of law and fact. *n this case% there is a co##on -uestion of fact. he fact that 1va was shot% led to her "ein$ una"le to finish the fil#. Plus% the #ovie #ay "e held lia"le for contri"utory ne$li$ence since it should have #ade sure that no har# would co#e to 1va. A#en Notes .14 No# 630 or entities

6ho #ay "e parties> Natural or !uridical persons authori8ed "y law. (Rule 0 Sec.1+

6ho are natural persons> 6ho are !uridical persons> Natural persons are hu#an persons. Art. 3/. :irth deter#ines personalityK "ut the conceived child shall "e considered "orn for all purposes that are favora"le to it% provided it "e "orn later with the conditions specified in the followin$ article. (Civil Code+ Art. 31. Cor civil purposes% the fetus is considered "orn if it is alive at the ti#e it is co#pletely delivered fro# the #otherTs wo#". 7owever% if the fetus had an intra2uterine life of less than seven #onths% it is not dee#ed "orn if it dies within twenty2four hours after its co#plete delivery fro# the #aternal wo#". (Civil Code+ Juridical persons are those entities created "y law. hey e9ist as le$al fiction. (i.e. corporations and partnerships which have a separate and distinct le$al personality fro# stoc@holders and partners% respectively.+

3! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

Art. 33. he followin$ are !uridical persons< (1+ he State and its political su"divisionsK (&+ =ther corporations% institutions and entities for pu"lic interest or purpose% created "y lawK their personality "e$ins as soon as they have "een constituted accordin$ to lawK (0+ Corporations% partnerships and associations for private interest or purpose to which the law $rants a !uridical personality% separate and distinct fro# that of each shareholder% partner or #e#"er. (Civil Code+ =posa v. Cactoran his was an action to prohi"it Sec. Cul$encio Cactoran fro# issuin$ any #ore ti#"er license a$ree#ents and to cancel those currently e9istin$. he action was sued in representation of $eneration yet un"orn with re$ard to their ri$ht to a healthful and "alanced ecolo$y. he SC reco$ni8ed their ri$ht to sue "ut li#ited their relief to te#porary restrainin$ orders and to prohi"ition. hey were not allowed to as@ for da#a$es. A#en Notes .26 No# 630

the person or over the property of the ward or "oth at the sa#e ti#e. 6hen an action is not prosecuted or defended in the na#e of the real party in interest% what is the re#edy> he opposin$ party can file a #otion to dis#iss on the $round that the pleadin$ su"#itted failed to state a cause of action% since na#in$ of the real party in interest is an ele#ent in any cause of action. he #otion to dis#iss "ased on a lac@ of capacity to sue is untena"le "ecause there was no real party in interest to spea@ of in the first place% #uch less capacity. 4aAa# AvenaAs Jericho Rosales e9a#ple. Jericho Rosales #et a vehicular accident which led to in!uries to his face and forced hi# to cancel fil#in$ of his Cil#fest entry. 7e filed suit a$ainst the driver and the owner of the car for da#a$es. he president of his fans clu" also filed action a$ainst the driver and the owner of the car% sayin$ that she had sleepless ni$hts and hurt feelin$s in seein$ her idol disfi$ured and una"le to act any#ore. 6ill her suit prosper> A real party in interest is one who has a direct and su"stantial interest to the case. *f you are not a real party in interest% then you have no cause of action. Sa#ple Pleadin$ to illustrate real party in interest and cause of action. (A "orrowed #oney fro# O. A failed to pay O. O files an action in court+ Repu"lic of the Philippines Re$ional rial Court National Capital Re$ion 4s. O% Plaintiff vs. 4r. A% ,efendant Case No. /917 C=R< Su# of 4oney COCPLAINT P5A*N *CC% "y counsel% respectfully states that< 1. 7A Plaintiff% 4s. O is a Cilipino and of le$al a$e% residin$ at 1 4ala@as St.% ?ue8on City. &. 7A ,efendant% 4r. O% is a Cilipino and of le$al a$e% residin$ at & 4ala@as St.% ?ue8on City. 0. 7A on 1 January &///% ,efendant loaned fro# #e P3//%///.//. 3. 7A defendant a$reed to pay the plaintiff on 1 January &//3. ;. 7A after 1 January &//3% defendant failed to pay his loan. .. 7A after repeated de#ands% defendant refuses to pay his loan to this day. 7. 7A defendantAs refusal to pay has caused plaintiff to suffer #aterial in!ury "ecause she was not a"le to use the #oney for her other livin$ e9penses.

6ho can sue> (Rule 0 Sec.1+ 1. Natural Persons &. Juridical Persons 0. 1ntities authori8ed "y law 6hat is !uridical personality> *s it different with !udicial capacity> Juridical personality% with respect to civil procedure% is the capacity to sue and "e sued. *t pertains to a partyAs ri$hts and o"li$ations. Juridical personality does not always #ean !uridical capacity. Juridical capacity% which is the fitness to "e the su"!ect of le$al relations% is inherent in every natural person and is lost only throu$h death. Capacity to act% which is the power to do acts with le$al effect% is ac-uired and #ay "e lost. (Art. 07% Civil Code+ Can a retard sue> Ges. 1ven if a person is an i#"ecile% he can still act throu$h his father% #other% or $uardian. 6hat is a $uardian ad lite#> *s he any different fro# an ordinary $uardian> A $uardian ad lite# is a special $uardian appointed "y the court in which a particular liti$ation is pendin$ to represent an infant% ward or un"orn person in that particular liti$ation% and the status of the $uardian ad lite# e9ists only in that specific liti$ation in which the appoint#ent occurs. (:lac@As 5aw ,ictionary.+ 7e is a representative of his ward for a particular suit. 7e is different fro# an ordinary $uardian. A $eneral $uardian is one who has the $eneral care and control of the person and estate of the ward. (:lac@As 5aw ,ictionary+. 7e can "e a $uardian over

3" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

671R1C=R1% plaintiff respectfully prays for !ud$#ent in its favor "y orderin$ defendant to pay the principal su# of P3//%///.//% le$al interest fro# 1 January &//3 until the loan is paid% #oral da#a$es% e9e#plary da#a$es and costs of this suit. 6hat are the ele#ents of a cause of action> 1. the ri$ht invo@ed "y the plaintiff. &. the act or o#ission co##itted "y the defendant 0. that said act or o#ission violated the ri$hts of the plaintiff. S *f any of these ele#ents are not present% then the co#plaint fails to state a cause of action. Can a real party in interest "e represented> Ges. (Rule 0 Section 0+ PR=:514< An owner of a "uildin$ in 4anila now resides in South Africa. he owner $ives a special power of attorney to the ad#inistrator of the "uildin$ to #ana$es the "uildin$ and send to hi# rentals fro# the tenants of the "uildin$. =ne of the tenants fails to pay% so the ad#inistrator sues the defaultin$ tenant. he ad#inistrator presents the power of attorney% !ustifyin$ his appearance in the action in representation of the non2resident owner. Counsel for the tenant discovers that the power of attorney was for$ed and wants to su"#it this issue "efore the court. 6hat should he do> Counsel for the tenant should file a #otion to dis#iss "ased on lac@ of capacity to sue (Rule 1.% Sec 1(d++ "ecause the ad#inistrator had no authority to sue in "ehalf of the owner of the "uildin$ since his alle$ed authority was derived fro# a false power of attorney. 6hat are the li#itations to a partyAs ri$ht to sue> 1. a$e. &. inco#petency 0. civil interdiction 3. #arria$e. *s an unwillin$ co2plaintiff a necessary or indispensa"le party> he unwillin$ co2plaintiff is an indispensa"le party and cannot refer to a necessary party "ecause the suit would not proceed without the co2plaintiff "ein$ i#pleaded in the action. 'ive an e9a#ple of an unwillin$ co2plaintiff under Rule 0 Sec 1/. *n a suit for recovery of rentals fro# a lessee where the "uildin$ leased is co2owned "y four sisters and 1 "rother% the "rother does not want to !oin in the suit a$ainst the lessee. Since co2owners are indispensa"le parties% all co2owners #ust "e i#pleaded in the action concernin$ the property co2 owned. *f the "rother refuses to !oin his sisters% the sisters can continue with the case and i#plead their

co2owner "rother as a defendant and state the reason why his consent to the suit cannot "e o"tained. Are co2owners always indispensa"le parties to a suit involvin$ the property co2owned "y the#> Ges% e9cept in cases of e!ect#ent. 6here the real property is co2owned% each co2owner is allowed to "rin$ an action "y hi#self alone for e!ect#ent. he theory here is that each co2owner is owner of the entire property pro indiviso. (Art. 387% Civil Code+. Can there "e per#issive !oinder of parties involvin$ indispensa"le parties> No. Per#issive !oinder of parties in Rule 0 Section 9 pertains to necessary parties. hat a party is indispensa"le #eans that their !oinder in the action is co#pulsory and not #erely per#issive. ,istin$uish "etween entities authori8ed "y law (Rule 0 Sec. 1+ and persons not or$ani8ed as an entity with !uridical personality (Rule 0 Sec. 1;+. 1ntities authori8ed "y law include 1. corporations "y estoppel (Chian$ Jai She@ School v CA+ &. estate of a deceased person (5i#!oco v *ntestate 1state of Cra$rante% 1state of 4ota v. Concepcion+ 0. the Ro#an Catholic Church (:arlin v. Rodri$ue8+ 3. action "rou$ht a$ainst a "uildin$ (:roadway heater+% where the lessee filed an answer and later entered into a co#pro#ise a$ree#ent ad#ittin$ lia"ility ()entanilla 1nterprises Corp. v. 5a8aro+ Joya v. PC'' Artists were not the real parties in interest since the artwor@s co#plained of were not owned "y the# and the action was not a proper ta9 payerAs suit "ecause no dis"urse#ent of pu"lic funds were involved. he artifacts and paintin$s were not considered as national treasures nor were they part of the cultural herita$e as evidenced "y the cultural properties re$ister. =posa v. Cactoran he prayer of the plaintiffs was twofold. 1. annul or cancel the e9istin$ ti#"er license a$ree#ents &. stop the Sec. Cactoran fro# issuin$ ti#"er license a$ree#ents. he #inors sued as plaintiffs invo@in$ their ri$ht to a "alanced and healthful ecolo$y% provided "y the Constitution. he SC reco$ni8ed the "eneficiariesA ri$ht of action as even those $enerations yet un"orn had a ri$ht to a "alanced and healthful ecolo$y as it was

39 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

connected with the inter$enerational responsi"ility to protect the environ#ent. C15*C*AN= (Concur+< *t is necessary that we e#phasi8e that the le$al interest that we spea@ of that $ives rise a cause of action is one that is specific% direct and #aterial interest and not one that is of a $eneral and va$ue #andate of the law. *f otherwise% the court will "e flooded with suits of a $eneral nature not actual controversies. SAvena says that the court only $ranted the ri$ht to sue to $enerations yet un"orn. heir reco$nition of these children yet un"orn is li#ited only for the purpose of suin$ and to protect such $eneration in the present. *t could not $ive rise for da#a$es as the co#putation for such would effectively "an@rupt the $overn#ent due to the indeter#inancy of the nu#"er of children that one #i$ht have. )elarde v. S@yvision )elarde% an e#ployee of S@yvision sued 5ope8 *nc. for his retire#ent "enefits. Co#plaint a$ainst 5ope8 did not prosper since )elardeAs e#ployer was actually S@yvision and the piercin$ of the corporate veil was unwarranted "ecause S@yvision and 5ope8 *nc. was of two distinct and separate personalities% even if S@yvision was a su"sidiary of 5ope8 *nc. Arcelona v. CA enant was assertin$ a clai# over a fishpond owned pro2indiviso "y the si"lin$s. All the co2owners of the fishpond should "e i#pleaded as to #a@e any !ud$#ent "indin$ on the property and parties% even if so#e of the co2owners had already #i$rated to the BS. Cere8o v uason he e#ployee2driver of the "us co#pany was not an indispensa"le party in a -uasi2delict a$ainst the e#ployer and owner of the "us co#pany since the lia"ility of the owner in a -uasi2delict is direct and pri#ary. A necessary party is not i#pleaded in the case. *f the plaintiff fails to include the necessary party despite an order of the court to do so% the plaintiffAs clai# a$ainst the necessary party is waived. (Rule 0 Sec. 9+. *f the necessary party files an action a$ainst the plaintiff after the latterAs co#plaint has "een dis#issed% will the su"se-uent action prosper> Ges% the !ud$#ent rendered in the ori$inal action "y the plaintiff is without pre!udice to the ri$hts of the o#itted necessary party. 1OA4P51< *n a clai# for da#a$es arisin$ fro# a car accident% the plaintiff sues the defendant "ut does not i#plead the insurer who is "ound to pay under the defendantAs insurance contract. he !ud$e dis#isses the co#plaint sayin$ the plaintiff was at fault. *f the insured defendant su"ro$ates his ri$hts to the insurer after pay#ent "y the latter% the

insurer is not prevented fro# filin$ a new clai# a$ainst the plaintiff in the for#er case. 9 utist Notes=

Can an entity without !uridical capacity file an action a$ainst a person> No. An entity without !uridical personality #ay not sue "ut it can "e sued. (Rule0 Section 1;+. i.e. a school or$ani8ation or law partnership neither of which are duly re$istered with the S1C. *n a class suit% what @ind of interest is considered> he interest of the class #ust "e a co##on or $eneral interest in the su"!ect #atter of the controversy and not #erely in the le$al -uestion involved. he interest #ust "e co##on and not independent for each #e#"er of the class and should not conflict with each other. =wners of su"division lots in a su"division cannot sue as a class "ecause their interest is only in their respective lots. (Sulo n$ :ayan% *nc. v Araneta% *nc.+ 6hat is the "asis or policy "ehind allowin$ class suits> he authori8ation for a class suit is "ased on convenience. 19tre#e care #ust however "e e9ercised in seein$ to it that the class is a true class and that its #e#"ers really have a co##on interest and that the one suin$ in "ehalf of the class is a #e#"er of that class and ade-uately represents their interest. 6hat should the defendant do if an indispensa"le party is not i#pleaded> Rule 0 Sec. 11 provides that neither #is!oinder or non2!oinder of parties is a $round for dis#issal of an action. So #ove for addition of the new party and if the plaintiff does not co#ply% you #ove to dis#iss the co#plaint on the $round of Rule 17 Sec 0% for failure to co#ply without !ustifia"le cause to the orders of the Court re-uirin$ that an indispensa"le party "e i#pleaded. A#en Notes .3 Dec 630

Clores v. 4allare Philipps Clores !oined two causes of action a$ainst two different persons. he !oinder was not proper "ecause it related to two transactions of different parties and there was no co##on -uestion of fact. he decision clarified and corrected the phrase found in :P 1&9 Sec 00 (1+ Hirrespective of whether the causes of action arose out of the sa#e or different transactionsN. *n a class suit% can a #e#"er of that class intervene>

40 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

Ges% any party in interest shall have the ri$ht to intervene to protect his individual interest. (Sec.1&% Rule 0+ Newswee@ v. *AC he li"el case filed "y the su$ar planters a$ainst Newswee@ was not a proper class suit . Reputation should "e of co##on or $eneral interestK "ut the reputations of each of the su$ar planters was distinct and individual to the#. =posa v. Cactoran he court found the case to "e a proper class suit. Please refer to CelicianoAs opinion on the "eneficiariesA ri$ht of action. *s the appearance of the Solicitor 'eneral #andatory in actions involvin$ the validity of any treaty% law% ordinance% e9ecutive order% presidential decree% rules or re$ulations> No% it is discretionary upon the court to re-uire the appearance of the Solicitor 'eneral in such cases. (Sec. &&% Rule 0+ 6hat are e9a#ples of action that are e9tin$uished "y death> *n a cri#inal action where the accused dies% the civil action that is i#pliedly instituted with the cri#inal action dies with the accused. *n cases of tort% the action is e9tin$uished only when the defendant dies. ,el Castillo v Jay#alin ,eed of assi$n#ent of interest of the father in prosecutin$ his clai# for da#a$es for the death of his deaf2#ute son was contracted in favor of the fatherAs son in law. he deed of assi$n#ent was a cession of ri$hts of the father to his son in law. ,ifferentiate a #otion to dis#iss "ased on lac@ of capacity to sue and failure to state a cause of action. 5ac@ of capacity to sue pertains to the authority $ranted "y law to a person to file suit or capacity to sue. ,oes the plaintiff have the le$al re-uire#ents in order to have le$al capacity to file the suit> Cailure to state a cause of action descri"es a situation where su"stantive law does not $rant a specific ri$ht to a person. ,oes the person state fully in his co#plaint his su"stantive ri$hts $ranted "y law that were violated> 6as there a le$al ri$ht violated> 'o!o v. 'oyala his case involved a dispute as to whether the parties a$reed to a pacto de retro sale of land or a loan with real estate #ort$a$e. he court found it was loan with e-uita"le #ort$a$e. =rder of a#end#ent "y the trial court is void "ecause the court should first order the su"stitution of parties.

6hat are the incidents or processes upon the death of a party to an action> 1. ,uty of counsel to infor# the court of the death within 0/ days after of the fact of death. &. Counsel #ust also $ive the na#e and address of the le$al representatives of the deceased party. 0. Court shall order said le$al representatives to appear and "e su"stituted within 0/ days fro# notice. 3. *f le$al representatives ordered to su"stituted fails to appear% court #ay order opposin$ party to procure the appoint#ent of an e9ecutor or ad#inistrator for the estate of the deceased to i##ediately appear for and on "ehalf of the deceased party. 6ho #ay "e le$al representatives that can "e su"stituted for the deceased party> 1. 7eirs of the deceased% without re-uirin$ the appoint#ent of e9ecutors or ad#inistrators. &. *f the heirs are #inors% the court #ay appoint a $uardian ad lite# for the#. 0. e9ecutors and ad#inistrators of the estate of the deceased party. 3. court appointed e9ecutor or ad#inistrator of the estate of the deceased party% procured "y the opposin$ party. (court char$es of procurin$ such appoint#ent "y opposin$ party #ay "e recovered "y the opposin$ party as costs.+ 6hat are the conditions for continuin$ an action a$ainst a pu"lic officer who died or was separated fro# pu"lic service> (Sec. 17% Rule 0+ 1. Court is satisfactorily convinced "y any party that there is a su"stantial need for continuin$ or #aintainin$ the action. &. he successor of the pu"lic officer adopts or continues or threatens to adopt or continue the action of his predecessor. 0. Application for continuin$ the action a$ainst the pu"lic officer is to "e $ranted only after 0/ days fro# the day the successor ta@es office. 3. :efore su"stitution is #ade% the successor of the pu"lic officer shall "e $iven reasona"le notice of the application and "e accorded an opportunity to "e heard.

41 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

>. Venue o& Actions .Ru!e 30 =enue o! real actions'
Actions affectin$ title to or possession of real property% or interest therein% shall "e co##enced and tried in the proper court which has !urisdiction over the area wherein the real property involved% or a portion thereof% is situated. Corci"le entry and detainer actions shall "e co##enced and tried in the #unicipal trial court of the #unicipality or city wherein the real property involved% or a portion thereof% is situated. (Sec. 1% Rule 3+

Parties% under Section 3 of Rule 3% are allowed to a$ree on the venue of any action arisin$ "etween the#% su"!ect to the followin$ re-uisites< 1. chosen venue is e9clusive in nature or in intent &. a$ree#ent is e9pressed in writin$ 0. it was a$reed upon "efore the filin$ of the suit. 1ven if the service a$ree#ent was a contract of adhesion% the stipulations were clear and left no roo# for a#"i$uity. Re$ ! do Notes 7ow is the present rule on venue different fro# the old rules> he present revised Rule has adopted a unifor# rules of venue for A55 R*A5 C=BR S. :oth the R C and the 4unicipal Courts now have !urisdiction over real actions% dependin$ on the value of the property in controversy. he venue for real actions "ein$ deter#ined "y the place where the real property is situated. Cor personal actions% the venue is deter#ined "y the residence of the parties% with special provisions for nonresident defendants. *f the action involves various parcels of land situated in different provinces% where should the venue lie> he venue is deter#ined "y the sin$u! rity or p!ur !ity o& t+e tr ns ction in#o!#in$ s id p rce!s o& ! nd. 6here said parcels are the o"!ects of one and the sa#e transaction% the venue was in the R C of any of the provinces wherein a parcel of land is situated. (1l 7o$ar Cilipino v. Seva+ *f the parcels of land are su"!ect of separate and distinct transactions% there is no co##on venue and separate actions should "e laid in the R C of the province wherein each parcel of land is situated. (4i!ares v. Piccio+ 'ive e9a#ples of real action and personal action. R1A5 AC *=NS. 1. Action for annul#ent or rescission of a sale and the return of realty. &. Action to co#pel the vendor to accept pay#ent of the purchase price of the land. 0. Action to co#pel the vendor to deliver the certificates of title to the land. P1RS=NA5 AC *=NS. 1. Action to recover the purchase price of the land. &. Actions for recovery a$ainst the Assurance Cund. 0. Action for the annul#ent of the cancellation of the award of a lot in favor of the plaintiff 3. Action to co#pel the #ort$a$ee to accept pay#ent and for the conse-uent cancellation of a real estate #ort$a$e% if the #ort$a$ee has not foreclosed the #ort$a$e and the #ort$a$or is in possession of the pre#ises.

=enue o! personal actions'
All other actions #ay "e co##enced and tried where the plaintiff or any of the principal plaintiffs resides% or where the defendant or any of the principal defendants resides% or in the case of a non2resident defendant where he #ay "e found% at the election of the plaintiff. (Sec. &% Rule 3+

=enue o! actions against non>residents'
*f any of the defendants does not reside and is not found in the Philippines% and the action affects the personal status of the plaintiff% or any property of said defendant located in the Philippines% the action #ay "e co##enced and tried in the court of the place where the plaintiff resides% or where the property or any portion thereof is situated or found. (Sec. 0% Rule 3+

?hen 1ule not applicable'

his Rule shall not apply< (a+ *n those cases where a specific rule or law provides otherwiseK or ("+ 6here the parties have validly a$reed in writin$ "efore the filin$ of the action on the e9clusive venue thereof. (Sec. 3% Rule 3+

People v. Sola Supre#e Court has the constitutional power to order the chan$e the venue of an action to avoid a #iscarria$e of !ustice. i#e *nc.% v. Reyes his was a li"el suit filed "y 4anila 4ayor )ille$as and 1nrile a$ainst i#e for an article entitled HCorruption in AsiaN in the CC*2Ri8al. Since the pu"lic officer holds office in 4anila and the li"elous article was not printed in Ri8al% the propert venue of the li"el case is in CC*24anila% as per RA 30.0% which is now Article 0./ of the RPC. he intent of the law was that a li"eled pu"lic officer #ust sue in the court where he holds office in order to prosecute the action with little interference with the dischar$e of his pu"lic duties. Pilipino elephone v. ecson his was an action filed in R C D *li$an for a su# of #oney "ased on . cellular phone su"scription e#"odied in a 4o"iline Service A$ree#ent that stipulated that any suit arisin$ fro# such relationship will "e filed with R C D 4a@ati and the su"scri"er waives any other venue.

42 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

*n an action to review an ad#inistrative decision of a pu"lic office involvin$ real property% where does venue lie> Action should "e "rou$ht to the R C of the place where the pu"lic officer who rendered the decision holds office% and not where the land is situated. *n a personal action% what does residence pertain to> he residence referred to is the place where the party actually resides at the ti#e the action is instituted% not his per#anent ho#e or do#icile. he residence of the person is his personal% actual or physical ha"itation or his actual residence or place of a"ode% whether per#anent or te#porary as lon$ as he resides with continuity and consistency therein. *f there are #ore than one plaintiffs or defendants in an action% whose residence shall "e considered in deter#inin$ the venue> he residences of the principal parties should "e the "asis for deter#inin$ the proper venue. *f i#proper venue is not o"!ected to in a #otion to dis#iss% is such $round dee#ed waived> No. Bnder the new rules% the $round for i#proper venue (Rule 1. Sec. 1 (c++ is placed on the sa#e footin$ as the other $rounds for dis#issal in Rule 1.% in that if such $round was not pleaded in a #otion to dis#iss% it #ay still "e raised as an affir#ative defense in the answer. (Rule 1. Sec. .+ 6hat are the ele#ents in stipulation "y the parties of venue> 1. hat the parties have validly a$reed to stipulations re$ardin$ the venue of any action arisin$ fro# their relation. &. he a$ree#ent #ust "e in writin$. 0. he a$ree#ent #ust have arisen "efore the filin$ of the action. 3. he parties #ust have a$reed on the e9clusive nature of the venue. (restrictive nature of a$ree#ent+ 6hat is the funda#ental principle "ehind the rules on venue> he funda#ental principle is that the situs is fi9ed to attain the $reatest convenience possi"le to the liti$ants "y ta@in$ into consideration the #a9i#u# accessi"ility to the# of the courts of !ustice. *f the parties have stipulated the venue arisin$ out of the action% can the court annul these stipulations> Ges% the court #ay declare a$ree#ents on venue as contrary to pu"lic policy if such stipulation un!ustly denies a party a fair opportunity to file suit in the place desi$nated "y the rules. i.e. contracts of adhesion involvin$ passa$e tic@ets where the stipulation of venue was in fine print.

*n actions involvin$ do#estic corporations with a networ@ of offices throu$hout the country% where does the venue lie> Cor purposes of venue% what is controllin$ is the location of the principal place of "usiness and not the "ranch office or place of "usiness thereof. (Sy v yson 1nterprises+. *s the venue of a third2party co#plaint different fro# the venue of the #ain action> No. Since a third party2co#plaint is "ut ancillary to a #ain action% the rules on !urisdiction and venue do not apply to it. A third party co#plaint yields to the !urisdiction and venue of the #ain action even if said third party co#plaint is "ased on a separate a$ree#ent which specifies a different venue for suits arisin$ fro# said a$ree#ent. 9 utist Notes.

6hen should a -uestion on venue "e raised> ?uestions on venue should "e raised at the earliest ti#e possi"le "ecause the court has to resolve it at once. So that where the o"!ection to the venue is denied% counsel #ust elevate it to the hi$her court at once on certiorari. A#en Notes . E Dec 630

i#e *nc. v Reyes his case applied the e9ception to the rule on venue under Section 3(a+ of Rule 3 "ecause Article 0./ of the RPC specifically provides a different law on the venue of li"el cases filed "y pu"lic officers. Article 0./ (para$raph 0+ provides that the li"el suit of the pu"lic officer shall "e filed either in the CC* where he holds office at the ti#e of the co##ission of the offense or where the li"elous article is printed and first pu"lished. 6hat are the re-uisites for the stipulation of parties as to venue of an action "etween the#> (Sec. 3("+% Rule 0+ 1. Parties #ust have validly a$reed in writin$ as to the venue stipulation. &. he written a$ree#ent was contracted prior to the filin$ of the action. 0. he stipulated venue of actions #ust "e e9clusive and cannot "e concurrent or alternative.

43 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

>I. :inds o& P!e din$s .Ru!e 50 OVERVIEW OF :INDS OF PLEADIN<S 1. Pleadin$s in 'eneral (Rule . W 8+ &. he Clai# (Rule .+ 0. he Answer (Rule .+ 3. he Reply (Rule .+ ;. Co##on Provisions (Rule 7 W 8+ .. A#endedV Supple#ental Pleadin$s (Rule 1/+ 7. 6hen to Cile Responsive Pleadin$s (Rule 11+ 8. Cilin$V Service of Pleadin$s% Jud$#ents and =ther Papers (Rule 10+ 9. Co#putation of i#e (Rule &&+ 1/. :ill of Particulars. (Rule 1&+ 1. *n 'eneral Pleadin$s defined.
Pleadin$s are the written state#ents of the respective clai#s and defenses of the parties su"#itted to the court for appropriate !ud$#ent. (Sec. 1% Rule .+

6hat are ulti#ate facts> 7ow is it different fro# evidentiary facts> U!ti' te & cts refer to those events% occurrences or transaction that are to "e alle$ed in the co#plaint that will constitute a cause of action. hese are facts which are essential to the ri$ht of action or #atter of defense and which are necessary to deter#ine the issues in the case. E#identi ry & cts are those specific instances or circu#stances that will prove the ulti#ate facts. hey are the pre#ises upon which conclusions of ulti#ate facts are "ased. Sa#ple Co#plaint alle$in$ the ulti#ate facts. (: was sideswiped "y car driven and owned "y A+ COCPLAINT Plaintiff% "y counsel% respectfully states that< 1. Plaintiff : is a Cilipino of le$al a$e% and resident of .7;/ Ayala% 4a@atiK while ,efendant A is also a Cilipino of le$al a$e% and resident of 1&0 Ayala% Ala"an$. &. So#eti#e on ,ece#"er &;% &//3 at around ;Ao cloc@ in the afternoon% Plaintiff : was wal@in$ alon$ Ayala Avenue. 0. Around the sa#e ti#e% ,efendant A was drivin$ alon$ Ayala Avenue in his "lac@ :46% with plate nu# OOO1/1. 3. 6hile Plaintiff : was wal@in$ on the sidewal@% the :46 driven "y ,efendant A suddenly went up to the sidewal@ and "u#ped Plaintiff : on his left side. ;. he :46 of ,efendant A was drivin$ at a"out a 1// #iles per hour when it hit Plaintiff : and stopped only when it hit a near"y 4eralco post. .. 6hen ,efendant A stepped out of his :46% he s#elled of alcohol. 7. After the car hit hi#% Plaintiff : suffered a "ro@en le$ and #inor "ruises and had to "e rushed to the hospital. 8. Plaintiff : had to pay hospital "ill worth P;/%/// and was "edridden and una"le to $o to wor@ for thirty days. PRALER he 4a@ati police filed a police report of the car accident. *s this police report an actiona"le docu#ent> No% it is a #ere evidentiary docu#ent. *t is not an actiona"le docu#ent "ecause the cause of action arose out of the car accident and not "ecause of the police report. Santia$o v. ,elos Santos he two docu#ents attached to the pleadin$ (Pasture 5ease A$ree#ent and the ,1NR Secretary order+ were i#portant as attach#ents are dee#ed part of the pleadin$s and are thus "indin$ on the parties who filed the pleadin$.

Jinds of Pleadin$s. (Sec. &% Rule .+
he clai#s of a party are asserted in a co#plaint% counterclai#% cross2clai#% third (fourth% etc.+ party co#plaint% or co#plaint2in2intervention. he defenses of a party are alle$ed in the answer to the pleadin$ assertin$ a clai# a$ainst hi#. An answer #ay "e responded to "y a reply.

4anner of 4a@in$ Alle$ations in Pleadin$s.
1very pleadin$ shall contain in a #ethodical and lo$ical for#% a plain% concise and direct state#ent of the u!ti' te & cts on which the party pleadin$ relies for his clai# or defense% as the case #ay "e% o#ittin$ the state#ent of #ere evidentiary facts. *f a de&ense re!ied on is % sed on ! " % the pertinent provisions thereof and their applica"ility to hi# shall "e clearly and concisely stated. (Sec. 1% Rule 8+ 6henever an ction or de&ense is % sed upon "ritten instru'ent or docu'ent% the su"stance of such instru#ent or docu#ent shall "e set forth in the pleadin$% and the ori$inal or a copy thereof shall "e attached to the pleadin$ as an e9hi"it% which shall "e dee#ed to "e a part of the pleadin$% or said copy #ay with li@e effect "e set forth in the pleadin$. (Sec. 7% Rule 8+

Santia$o v. ,elos Santos Santia$o applied for re$istration of a land% which was opposed "y ,elos Santos "ecause the land sou$ht to "e re$istered "y Santia$o was pu"lic land which was leased to ,elos Santos "y virtue of a Pasture 5ease A$ree#ent. Santia$o had ad#itted in his pleadin$s that the land was for#erly of pu"lic do#ain "ut was released for a$ricultural purposes under the order of the ,1NR Secretary. A#en Notes .E Dec 630

44 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

he attach#ents proved that Santia$o had no continuous% open and uninterrupted possession of the land "ecause the said land was inaliena"le. Re$ ! do Notes 6hat is a pleadin$> 6hat is included in the ter# pleadin$> A pleadin$ is the written state#ents of the for#al alle$ations "y the parties to a suit of the respective clai#s and defenses% with the intended purpose "ein$ to provide notice of what is to "e e9pected at trial. he ter# Hpleadin$N includes all papers filed% e9cludin$ evidentiary #atters% fro# the co#plaint down to the !ud$#ent. ,ocu#ents attached to the pleadin$s and #ade a part thereof are considered evidence and also part of the pleadin$s. (Asia :an@ v. =lsen+. Are all @inds of pleadin$s allowed in actions $overned "y su##ary procedure> No. he only pleadin$s allowed to "e filed in su##ary procedure are the co#plaint% co#pulsory counter clai#% cross clai#s pleaded in the answer and the answers thereto. (1991 Revised Rules on Su##ary Procedure% Sec. 0(a++. *n a ne$ative defense% what is to "e considered as a specific denial> A defendant #ust specify each #aterial alle$ation of fact the truth of which he does not ad#it and% whenever practica"le% shall set forth the su"stance of the #atters upon which he relies to support his denial. 6here a defendant desires to deny only a part of an aver#ent% he shall specify so #uch of it as is true and #aterial and shall deny only the re#ainder. 6here a defendant is without @nowled$e or infor#ation sufficient to for# a "elief as to the truth of a #aterial aver#ent #ade in the co#plaint% he shall so state% and this shall have the effect of a denial. (Sec. 1/% Rule 8+ Are the enu#erations in the Rules of affir#ative defenses e9clusive> No. =ther affir#ative defenses not #entioned in the rules include< 1. res !udicata &. ultra vires acts of a corporation% or lac@ of authority of a person assu#in$ to act for the corporation 0. laches 3. unconstitutionality 6hat is the effect of a counter clai#> A counterclai# is considered in effect a N16 SB* in which the party na#ed as the defendant in the ori$inal co#plaint is the plaintiff in the new co#plaint and the plaintiff in the ori$inal co#plaint "eco#es the defendant in the new suit.

6hen is a counterclai# per#issive> 6hat are its deter#inin$ factors> 1. *f it arises out of% or is necessarily connected with% the transaction or occurrence which is the su"!ect #atter of the opposin$ partyAs clai# &. *t does not re-uire for its ad!udication the presence of third parties of who# the court cannot ac-uire !urisdiction 0. Su"!ect to the -ualification on the !urisdictional a#ount with re$ard to counterclai#s raised in the R C% the court has !urisdiction to entertain the clai#. S he one co#pellin$ test of co#pulsoriness is the lo$ical relationship "etween the clai# alle$ed in the co#plaint and that in the counter clai#. 6hat are the criteria for deter#inin$ whether a clai# is co#pulsory or per#issive% accordin$ to the case of Alday v. C'B *nsurance> 1. the issues of fact and law raised "y the clai# and the counterclai# are essentially the sa#e. &. res !udicata would "ar a su"se-uent suit or defendantAs clai# a"sent the co#pulsory counterclai# rule. 0. su"stantially the sa#e evidence support or refute the clai# and the counterclai#. 3. there is a lo$ical relationship "etween the clai# and the counter clai#. ,istin$uish "etween a co#pulsory counter clai# and a per#issive counterclai#. C=4PB5S=RG P1R4*SS*)1 Also @nown Recoup#ent Set2off as Relation to =ne which arises ,oes N= arise the su"!ect out of or is out or nor is #atter of the necessarily necessarily opposin$ connected with connected partyAs clai# the transaction or occurrence in the ori$inal co#plaint *f it is not *t is :ARR1,. N= :ARR1,. se2up with the ori$inal co#plaint S 1ven if the counterclai# arises out of the su"!ect #atter of the opposin$ partyAs clai# "ut is not within the !urisdiction of the re$ular courts% or it re-uires for its ad!udication the presence of third parties over who# the court cannot ac-uire !urisdiction% it is only considered as a per#issive counterclai# and is not "arred even if not set up in the action. *s an after2ac-uired counterclai# "arred> No. Bnder Rule 8 Section 11% even if the counter clai# was not set2up alon$side the co#plaint% an after2ac-uired counterclai# #ay still "e set up since the "asis for co#pulsory counterclai# e9ists at the ti#e he files his answer. Should a counterclai# or cross clai# "e answered> A counterclai# or cross2clai# need not "e answered if it is "ased on and insepara"le fro# the

45 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

very defense raised "y the opposin$ party% as it will #erely result in said opposin$ party pleadin$ the sa#e facts already raised in the for#er pleadin$. (Navarro v. :ello+ A plaintiff who choose not to answer a co#pulsory counterclai# cannot "e declared in default on such counterclai#. ('o!o v 'oyala+ 7ow does a cross clai# differ fro# Cross2Clai# A$ainst A$ainst a co2 who# filed. party Relation to Always arises out the su"!ect of the transaction #atter of the or occurrence #ain clai# that is the su"!ect #atter of the ori$inal action or of a counterclai# there in. (always co#pulsory+ *f it is not :ARR1, se2up with the #ain action a counterclai#> Counterclai# A$ainst opposin$ party So#eti#es is per#issive (not necessarily connected or arises out of the su"!ect #atter of the #ain action+

1. leave of court is re-uired &. if leave of court is $ranted% su##ons will have to "e served on the third party defendant. Co#pare a third party co#plaint to a co#plaint in intervention. S*4*5AR* G. :oth result in "rin$in$ into the action a third person who was not ori$inally a party. ,*CC1R1NC1. As to the initiative of "rin$in$ the action% the initiative of filin$ a third party co#plaint lies with the person already a party to the actionK in a co#plaint in intervention the initiative rests upon the non2party who see@s to !oin the action. ,oes a third party co#plaint need to arise out of or "e entirely dependent on the #ain action> No. *t suffices that the third party co#plaint "e only in respect of the clai# of the third party plaintiffAs opponent. Conse-uently% the !ud$#ent on a third party co#plaint #ay "eco#e final and e9ecutory without waitin$ for the final deter#ination of the #ain cause. (Pascual v. :autista+ 6hat are the tests to deter#ine whether the third party co#plaint is in respect of plaintiffAs clai#> 1. 6here it arises out of the sa#e transaction on which the plaintiffAs clai# is "asedK or whether the third party clai#% althou$h arisin$ out of another or different contract or transaction is connected with the plaintiffAs clai# &. 6hether the third party defendant would "e lia"le to the plaintiff or to the defendant for all or part of the plaintiffAs clai# a$ainst the ori$inal defendant% althou$h the third party defendantAs lia"ility arises out of another transaction. 0. 6hether the third party defendant #ay assert any defenses which the third party plaintiff has or #ay have to the plaintiffAs clai#. A #ain action if filed "y the plaintiff2pedestrian in the R C% involvin$ a car accident out of which da#a$es of P;//%///.// is clai#ed. he defendant2drive files a third party co#plaint a$ainst his passen$er for havin$ distracted hi# while drivin$ thus causin$ hi# to lose control over the car for at half of the actual da#a$es caused to the plaintiff2pedestrian. he third party defendant files a #otion to dis#iss sayin$ that the third party co#plaint is not within the !urisdiction of the R C% since the a#ount would only "e P&;/%///.//. 7ow should the court rule> 6here the trial court has !urisdiction over the #ain case% it also has !urisdiction over the third party co#plaint re$ardless of the a#ount involved% as a third party co#plaint is #erely au9iliary to and is a continuation of the #ain action. (Repu"lic v. Central SuretyK 1ASC= v Cui+.

*f per#issive% it is not "arredK "ut it is "arred if it is co#pulsory

6hat is the effect of a dis#issal of the #ain co#plaint with the cross clai#> he dis#issal of the co#plaint carries with it the dis#issal of a cross2clai# which is purely defensive% "ut not a cross clai# see@in$ affir#ative relief. ( orres v CA+ 6hat is the purpose of the reply> o !oin issues with new #atters in the answer and there"y authori8e the pleader of the reply to introduce evidence on said new issues. *s a reply #andatory> No% the filin$ of a reply is optional as the new #atters raised in the answer are dee#ed controverted even without a reply. 6hat is the li#itation on the reply as re$ards the cause of action> A party cannot% in his reply% a#end his cause of action nor introduce therein new or additional causes of action. Co#pare a third party co#plaint to a cross clai#. S*4*5AR* G. :oth see@ to recover fro# another person so#e relief in respect to the opposin$ partyAs clai#. ,*CC1R1NC1. 6ith respect to the sta$e in which the person is involved% a third party co#plaint see@s to i#plead a person not yet party to the actionK in a cross clai#% the third party is already i#pleaded in the action. S*n the filin$ of a third2party co#plaint%

4 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA counterclai# therein. Such cross2clai# #ay include a clai# that the party a$ainst who# it is asserted is or #ay "e lia"le to the cross2clai#ant for all or part of a clai# asserted in the action a$ainst the cross2clai#ant. (Sec. 8% Rule .+

9 utist

Notes.

6hat is the An$lo2Sa9on procedure of pleadin$s> he An$los2Sa9on procedure of pleadin$s re$ard the pleadin$ as essentially "indin$ the parties in the trial% unli@e in countries of Continental 1urope where the parties are not "ound at the trial "y what they have previously said in the#. 6hat are the functions of pleadin$s> 1. Pleadin$s pri#arily perfor# a notice2$ivin$ function in that they serve to infor# each side of his version as to the #atters of fact. &. Pleadin$s also assist "oth the court and the parties as they for#ulate the issues to "e tried. 0. he pleadin$s are e9pected also at a #ini#u# to sufficiently differentiate the situation of fact which is "ein$ liti$ated fro# all the other situations to allow the application of the doctrine of res !udicata. 3. Pleadin$s serve as a device for the proper routin$ of cases to secure the #ost effective #eans of trial. 6hat is a denial of the alle$ations in a pleadin$ in the for# of a ne$ative pre$nant> A ne$ative pre$nant is a for# of denial% considered to "e pre$nant with ad#issions as it is a#"i$uous. A ne$ative pre$nant has "een defined as that for# of a denial which i#plies an affir#ative% or as a denial in such a for# as to i#ply or e9press an ad#ission of the su"stantial fact which apparently is controverted% or a denial which% althou$h in the for# of a traverse% really ad#it the i#portant facts contained in the alle$ations to which it relates. *n disallowin$ a pleader of a ne$ative pre$nant% the Rules e9pressly re-uire that where a defendant desires to deny only a part of an aver#ent% he should specify so #uch of it as is true and #aterial and deny only the re#ainder. (Rule 8 Sec. 11+ &. he Clai#. 6here the Clai# is asserted.
he clai#s of a party are asserted in a co#plaint% counterclai#% cross2clai#% third (fourth% etc.+ party co#plaint% or co#plaint2in2intervention. (Sec. & (para. 1+% Rule .+

Counter2counterclai#s and counter2cross2clai#s.

A counterclai# #ay "e asserted a$ainst an ori$inal counter2clai#ant. A cross2clai# #ay also "e filed a$ainst an ori$inal cross2clai#ant. (Sec. 9% Rule .+

Clai#s of a Plaintiff after ,efendantAs Reply.

*f the plaintiff wishes to interpose any clai#s arisin$ out of the new #atters so alle$ed% such clai#s shall "e set forth in an a#ended or supple#ental co#plaint. (Sec. 1/ (para. &+% Rule .+

Counterclai# or Cross2clai# Arisin$ After Answer.

A counterclai# or a cross2clai# which either #atured or was ac-uired "y a party after servin$ his pleadin$ #ay% with the per#ission of the court% "e presented as a counterclai# or a cross2clai# "y supple#ental pleadin$ "efore !ud$#ent. (Sec. 9% Rule 11+

NA4ARC= v. Cederation of Bnited NA4ARC= NA4ARC= entered into a contract of sale of candies to Cederation secured "y 0 do#estic letters of credit fro# PN:. Cederation% first% filed suit to co#pel NA4ARC= to deliver $oods and accept pay#ent. NA4ARC=% later% filed suit to co#pel Cederation to #a@e pay#ents% since the letters of credit were dishonored. A counterclai# #ust e9ist at the ti#e the counterclai#ant files his answer. herefore% an after2 ac-uired counterclai# (cause of action of the counterclai# arose only after the filin$ of answer+ is not "arred "ut can "e set2up in a supple#ental pleadin$ "efore the !ud$#ent. :rin$in$ New Parties. 6hen the presence of parties other than those to the ori$inal action is re-uired for the $rantin$ of co#plete relief in the deter#ination of a counterclai# or cross2clai#% the court shall order the# to "e "rou$ht in as defendants% if !urisdiction over the# can "e o"tained. (Sec. 1&% Rule .+ *f an ddition ! de&end nt is i'p!e ded in ! ter p!e din$% the action is co##enced with re$ard to hi# on the date of the filin$ of such later pleadin$% irrespective of whether the #otion for its ad#ission% if necessary% is denied "y the court. (Sec. ;% Rule 1+ Bpon #otion of a party the court #ay% upon reasona"le notice and upon such ter#s as are !ust% per#it hi# to serve a supp!e'ent ! p!e din$ settin$ forth transactions% occurrences or events "+ic+ + #e + ppened since t+e d te o& t+e p!e din$ sou$+t to %e supp!e'ented. he adverse party #ay plead thereto within ten (1/+ days fro# notice of the order ad#ittin$ the supple#ental pleadin$. (Sec. .% Rule 1/+ hird% (fourth% etc.+ party co#plaint.

Co#plaint.
he co#plaint is the pleadin$ alle$in$ the plaintiffTs cause or causes of action. he na#es and residences of the plaintiff and defendant #ust "e stated in the co#plaint. (Sec. 0% Rule .+

Counterclai#.
A counterclai# is any clai# which a defendin$ party #ay have a$ainst an opposin$ party. (Sec. .% Rule .+

Cross2clai#.
A cross2clai# is any clai# "y one party a$ainst a co2party arisin$ out of the transaction or occurrence that is the su"!ect #atter either of the ori$inal action or of a

4! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

A third (fourth% etc.+ party co#plaint is a clai# that a defendin$ party #ay% with leave of court% file a$ainst a person not a party to the action% called the third (fourth% etc.+ party defendant% for contri"ution% inde#nity% su"ro$ation or any other relief% in respect of his opponentTs clai#. (Sec. 11% Rule .+ Repu"lic v. Central Surety (&. SCRA 731+ Read the SC decision of =cto"er &.% 19.8 (&; SCRA .31+. his present action is a #otion to #odify =cto"er &.% 19.8 !ud$#ent. 4otion was $ranted as a$ainst the third2party defendants "ecause no co##ent was filed "y the# as of the date of this resolution. 1ffect of ,is#issal of Clai# to ,efendantAs Counterclai#. *f no #otion to dis#iss has "een filed% any of the $rounds for dis#issal provided for in this Rule #ay "e pleaded as an affir#ative defense in the answer and% in the discretion of the court% a preli#inary hearin$ #ay "e had thereon as if a #otion to dis#iss had "een filed. he dis#issal of the co#plaint under this section shall "e "it+out pre*udice to t+e prosecution in t+e s 'e or sep r te ction o& counterc! i' p!e ded in t+e ns"er . (Sec. .% Rule 1.+ ,is#issal of Clai# upon 4otion of Plaintiff. 19cept as provided in the precedin$ section% a co#plaint shall not "e dis#issed at the plaintiffTs instance save upon approval of the court and upon such ter#s and conditions as the court dee#s proper. I& counterc! i' + s %een p!e ded %y de&end nt prior to t+e ser#ice upon +i' o& t+e p! inti&&Bs 'otion &or dis'iss !, t+e dis'iss ! s+ !! %e !i'ited to t+e co'p! int . he dis#issal shall "e "it+out pre*udice to t+e ri$+t o& t+e de&end nt to prosecute +is counterc! i' in sep r te ction unless within fifteen (1;+ days fro# notice of the #otion he #anifests his preference to have his counterclai# resolved in the sa#e action. Bnless otherwise specified in the order% a dis#issal under this para$raph shall "e without pre!udice. A class suit shall not "e dis#issed or co#pro#ised without the approval of the court. (Sec. &% Rule 17+ Co'pu!sory Counterc! i' nd Crossc! i'.

court "oth as to the a#ount and the nature thereof% e9cept that in an ori$inal action "efore the Re$ional rial Court% the counterclai# #ay "e considered co#pulsory re$ardless of the a#ount. (Sec. 7% Rule .+ Calo v. A!a9 Calo ordered wire rope worth P0%3&/ fro# A!a9. :enavides% which ac-uired the credit of A!a9% filed suit in 4 C to enforce outstandin$ credit a$ainst Calo. Calo su"se-uently filed suit in CC* for co#pletion of delivery of the $oods or reduce the credit with le$al costs. CaloAs clai# was not a co#pulsory counterclai#% even if it arises out of the sa#e transaction and does not re-uire the presence of third parties. he a#ount of CaloAs clai# e9ceeds the !urisdiction of the 4 CK even if it was a co#pulsory counterclai# in the 4 C% Calo would still have to file a separate action in CC* "ecause 4 C did not have !urisdiction over the P1&%/// clai#. 19istin$ counterclai# or cross2clai#. A co#pulsory counterclai# or a cross2clai# that a defendin$ party has t t+e ti'e +e &i!es +is ns"er shall "e contained therein. (Sec. 8% Rule 11+ Co#pulsory counterclai#% or cross2clai#% not set up "arred. A co#pulsory counterclai#% or a cross2clai#% not set up shall "e "arred. (Sec. &% Rule 9+ Chave8 v. Sandi$an"ayan PC'' filed a case a$ainst Co!uan$co and 1nrile for reconveyance and reversion. 1nrile filed an answer with co#pulsory counterclai# and cross2 clai# for da#a$es i#pleadin$ Chave8 and other officials sayin$ that the action was #eant to harass hi#. he clai# for alle$ed harass#ent of Chave8 does not constitute a co#pulsory counterclai# and #ust "e filed in a separate civil action. A lawyer should not "e sued on a counterclai# in the very sa#e case he has filed only as counsel and not as a party in interestK this rule applies #ore particularly to the Solicitor 'eneral whose function is to defend national interest. H o allow a counterclai# a$ainst a lawyer who files a co#plaint for his clients% who is #erely their representative in court and not a plaintiff or co#plainant in the case% would lead to #ischievous conse-uences.N (:or!a v. :or!a+ Co!uan$co v. )ille$as Co!uan$co filed an e!ect#ent suit for )ille$as% whose occupation of Co!uan$coAs land and the construction of the house was #erely tolerated "y the land owner. Counterclai# of )ille$as for pay#ent of i#prove#ents on the land worth P0//%/// should have "een set2up in the e!ect#ent case% in line with her clai# that she was a "uilder in $ood faith and

Co#pulsory Counterclai#. A co#pulsory counterclai# is one which% "ein$ co$ni8a"le "y the re$ular courts of !ustice% arises out of or is connected with the transaction or occurrence constitutin$ the su"!ect #atter of the opposin$ partyTs clai# and does not re-uire for its ad!udication the presence of third parties of who# the court cannot ac-uire !urisdiction. Such a counterclai# #ust "e within the !urisdiction of the

4" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

should "e paid the value of the i#prove#ents #ade "y her. Carpena v. 4analo *n an action for recovery of a parcel of land% the defendant #ust set2up a counterclai# for the value of the i#prove#ents #ade or introduced "y hi# on the property% otherwise his clai# would "e "arred. Ca"aero v. Cantos No doc@et fees are re-uired for a co#pulsory counterclai#. he defendant filed counterclai# with the answer "ecause civil lia"ility was dee# i#pliedly instituted with the cri#inal action. Chan v. CA Chan leased a rooftop of his "uildin$ to Cu for the purpose of usin$ the property as a learnin$ center. 5ease was su"se-uently ter#inated and Chan refused to accept further rentals fro# Cu. Cu filed action for consi$nation with the 4 CK Chan filed a counterclai# for e!ect#ent sayin$ the lease was e9pired. :oth parties have conceded to the propriety of the counterclai# for e!ect#ent in the action for consi$nation. Cu even filed a counter counterclai# to ChanAs counterclai#. he counterclai# for e!ect#ent was co#pulsory as it arose or is necessarily connected with the lease contract% as re$ards whether pay#ent of rentals was due or whether the lease had already e9pired. A#en Notes .E Dec 630

0. court has !urisdiction to entertain the clai#. 6hat are the tests of co#pulsoriness counterclai#> a. identity of issues ". would "e "ound "y res !udicata c. sa#e or su"stantial identity of evidence d. lo$ical relationship. of a

NA4ARC= v. Cederation he first case filed "y the Cederation involved the initial delivery of $oods% where the court declared the contract to "e valid and NA4ARC= was ordered to deliver the $oods. he second case filed "y NA4ARC= as@ed for the pay#ent for the delivery of the $oods. Althou$h the contract su"!ect of the controversy was the sa#e% each case pertained to a different transaction. 6hat @ind of parties are sou$ht to "e "rou$ht in under Section 1&% Rule .> hese are necessary parties to the deter#ination of a counterclai# or cross2clai#. his is different fro# a necessary party to a pleadin$ assertin$ a clai# under Section 9% Rule 0 "ecause necessary parties to a clai# are $iven #ore privile$es for e9a#ple failure of party to co#ply with order of inclusion of necessary party shall "e dee#ed a waiver of the clai# a$ainst the necessary party and any !ud$#ent where a necessary party is not included is without pre!udice to the ri$hts of such necessary party. A plaintiff2landowner files an e!ect#ent action a$ainst a defendant2lessor. ,efendant lessor files an answer with counterclai# for value of the i#prove#ents #ade on the land as a "uilder in $ood faith. Plaintiff2landowner withdraws the co#plaint for e!ect#ent% and court dis#isses the action. *s the defendantAs counterclai# also dis#issed> No% the dis#issal is li#ited to the co#plaint without pre!udice to the clai#s of the defendant in his counterclai#% which continues to su"sist. =5, RB51< *f counterclai# is co#pulsory and the #ain action is dis#issed% the co#pulsory counterclai# is also dis#issed. *f the counterclai# is per#issive and the #ain action is dis#issed% the per#issive counterclai# survives. he deter#inin$ factor is whether or not the counterclai# is per#issive or co#pulsory. N16 RB51< Any dis#issal of the action upon #otion of the plaintiff or upon defendantAs own #otion to dis#iss is without pre!udice to the filin$ of the defendant of his counterclai# in a separate action (Sec. .% Rule 1. and Sec. &% Rule 17+. 7owever% in case where the defendant already filed a counterclai# prior to the service upon hi# of the plaintiffAs #otion for dis#issal% the dis#issal shall "e li#ited to the co#plaint and the defendant% within

he co#plaint alle$es the cause of actionK while the answer contains the defenses a$ainst the co#plaintAs cause of action. A counter clai# as@s for a positive and independent relief and% unli@e the answer% does not !ust defeat the opposin$ partyAs clai#. A counterclai# is any clai# whether per#issive or co#pulsory. A cross clai# is a clai# a$ainst a co2party. (it is a clai# a$ainst you @a@a#pi or a party on the sa#e side+ A counter cross clai# is essentially a counterclai# and can "e either per#issive or co#pulsory. A third2party co#plaint defendin$ party. is availa"le only to a

6hat are the re-uisites of a co#pulsory counterclai#> 1. arises out of or is necessarily connected with the transaction or occurrence that is the su"!ect #atter of opposin$ partyAs clai#. &. does not re-uire presence of third parties of who# the court cannot ac-uire !urisdiction

49 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

fifteen days fro# notice of the #otion% #ay #anifest his preference to have his counterclai# "e resolved in the sa#e action. (Sec. &% Rule 17+ he deter#inin$ factor now is who filed first "ecause the counterclai# #ust survive if the answer has already "een $iven. Co!uan$co v. )ille$as *n accion reinvindicatoria% the action pertains to issues of ownership and possession. *n the second case% )ille$as as@ed for the value of i#prove#ents as an alternative. he first action served as a prior !ud$#ent which "arred the second case. Res !udicata "ars all issues raised or should have "een raised at the first action. All clai#s that inured to the "enefit of )ille$as should have "een alle$ed in the first action and cannot file piece#eal suits. 0. Answer ,efinition.
he defenses of a party are alle$ed in the answer to the pleadin$ assertin$ a clai# a$ainst hi#. (Sec. &% Rule .+ An answer is a pleadin$ in which a defendin$ party sets forth his defenses. (Sec. 3% Rule .+

*f no #otion to dis#iss has "een filed% any of the $rounds for dis#issal provided for in this Rule #ay "e pleaded as n &&ir' ti#e de&ense in t+e ns"er and% in the discretion of the court% a preli#inary hearin$ #ay "e had thereon as if a #otion to dis#iss had "een filed. he dis#issal of the co#plaint under this section shall "e without pre!udice to the prosecution in the sa#e or separate action of a counterclai# pleaded in the answer. (Sec. .% Rule 1.+ Specific ,enial. A defendant #ust speci&y e c+ ' teri ! !!e$ tion o& & ct t+e trut+ o& "+ic+ +e does not d'it and% whenever practica"le% shall set forth the su"stance of the #atters upon which he relies to support his denial. 6here a defendant desires to deny only a p rt o& n #er'ent% he shall specify so #uch of it as is true and #aterial and shall deny only the re#ainder. 6here a defendant is "it+out (no"!ed$e or in&or' tion su&&icient to &or' %e!ie& s to t+e trut+ o& ' teri ! #er'ent ' de in t+e co'p! int% he shall so state% and this shall have the effect of a denial. (Sec. 1/% Rule 8+ Alle$ations Not Specifically ,enied ,ee#ed Ad#itted. 4aterial aver#ent in the co#plaint% ot+er t+ n t+ose s to t+e 'ount o& un!i-uid ted d ' $es% shall "e dee#ed ad#itted when not specifically denied. Alle$ations of usury in a co#plaint to recover usurious interest are dee#ed ad#itted if not denied under oath. (Sec. 11% Rule 8+ ec :i v. Chartered :an@ of *ndia his case involved a -uantity of leaf to"acco sold "y ec :i to 5a Brania Ci$ar Cactory% who then pled$ed the said leaf to"acco to Chartered :an@ of *ndia as security for a P&;%/// loan. :an@ too@ @eys to the "ode$a where the to"acco was stored and sold the $oods. ec :i was a preferred creditor of 5a Brania as an unpaid seller and was not "ound "y the pled$e a$ree#ent with Chartered :an@% which was not set forth in a pu"lic instru#ent. :an@ said ec :i alle$ed in its answer that the :an@ had Ha"solute and e9clusive possession of the $oodsN. A $eneral ad#ission of the truth of the alle$ations set forth in a pleadin$ is not an ad#ission of the truth of< (a+ an i#possi"le conclusion of fact drawn fro# other facts set out in the pleadin$ ("+ a wron$ conclusion of law "ased on the alle$ations of fact well pleaded (c+ a $eneral aver#ent of facts contradicted "y #ore specific aver#ents. Philippine Advertisin$ v. Revilla Phil. Advertisin$ filed a co#plaint for a recovery of a su# of #oney a$ainst Southern

Answer to hird (fourth% etc.+ Party Co#plaint.

A third (fourth% etc.+ party defendant #ay alle$e in his answer his defenses% counterclai#s or cross2clai#s% includin$ such defenses that the third (fourth% etc.+ party plaintiff #ay have a$ainst the ori$inal plaintiffTs clai#. *n proper cases% he #ay also assert a counterclai# a$ainst the ori$inal plaintiff in respect of the latterTs clai# a$ainst the third2party plaintiff. (Sec. 10% Rule .+

,efenses.
,efenses #ay either "e ne$ative or affir#ative. (a+ A ne$ ti#e de&ense is the specific denial of the #aterial fact or facts alle$ed in the pleadin$ of the clai#ant essential to his cause or causes of action. ("+ An &&ir' ti#e de&ense is an alle$ation of a new #atter which% while hypothetically ad#ittin$ the #aterial alle$ations in the pleadin$ of the clai#ant% would nevertheless prevent or "ar recovery "y hi#. he affir#ative defenses include fraud% statute of li#itations% release% pay#ent% ille$ality% statute of frauds% estoppel% for#er recovery% dischar$e in "an@ruptcy% and any other #atter "y way of confession and avoidance. (Sec. ;% Rule .+

'o!o v. 'oyala A plaintiff who fails or chooses not to answer a co#pulsory counterclai# #ay not "e declared in default. *ssues in the counterclai# are dee#ed auto#atically !oined "y the alle$ation of the co#plaint. *n this case% the counterclai# that the contract was really a loan with real estate #ort$a$e was clearly inconsistent and directly controverted the whole theory and "asic alle$ations of the co#plaint that the contract was a pacto de retro sale. Pleadin$ 'rounds as Affir#ative ,efenses.

50 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

*ndustrial for pro#otion and advertisin$ services. *n SouthernAs answer% it said that they were without sufficient @nowled$e or infor#ation to for# a "elief as to the truth of the #atter. he docu#ents attached to the pleadin$ were written ad#issions of inde"tedness. he rule on denial of alle$ations "ased on lac@ of sufficient @nowled$e or infor#ation does not apply if fro# the facts to which want of @nowled$e is asserted is so plainly within the defendantAs @nowled$e. 5ia# 5aw v. =ly#pic Saw#ill. =ly#pic Saw#ill% defendant2de"tor% ad#itted it owned 5ia# 5aw% plaintiff2creditor% P1/%/// "ut said that the additional P.%/// clai#ed "y 5ia# 5aw was usurious interest. Bnder Section 9 of the Bsury 5aw% failure to deny that the interest was usurious was dee#ed to "e an i#plied ad#ission. 7owever% this provision does not apply% where it is the defendant and not the plaintiff% which clai#s usury. C9 Circu! r No. D64 *nterest rates are not lon$er su"!ect to any ceilin$ prescri"ed in the Bsury 5aw. Action or ,efense :ased on ,ocu#ent D Actiona"le ,ocu#ents. 6henever an action or defense is "ased upon a written instru#ent or docu#ent% the su"stance of such instru#ent or docu#ent shall "e set forth in the pleadin$% and the ori$inal or a copy thereof shall "e attached to the pleadin$ as an e9hi"it% which shall "e dee#ed to "e a part of the pleadin$% or said copy #ay with li@e effect "e set forth in the pleadin$. (Sec. 7% Rule 8+ 7ow to Contest Actiona"le ,ocu#ents. 6hen an action or defense is founded upon a written instru#ent% copied in or attached to the correspondin$ pleadin$ as provided in the precedin$ section% the $enuineness and due e9ecution of the instru#ent shall "e dee#ed ad#itted unless t+e d#erse p rty, under o t+, speci&ic !!y denies t+e'% and sets forth what he clai#s to "e the factsK "ut the re-uire#ent of an oath does not apply when the adverse party does not appear to "e a party to the instru#ent or when co#pliance with an order for an inspection of the ori$inal instru#ent is refused. (Sec. 8% Rule 8+ P:C v. CA Sar#iento o"tained a P3.1&. 4 loan fro# Philippine :an@in$ Corp.% as evidenced "y a pro#issory note. 6hen Sar#iento failed to pay P:C the loan% P:C filed a co#plaintK Sar#iento denied he received the proceeds of the loan. he pro#issory not proved only the e9istence of such docu#ent (actiona"le docu#ent+. A state#ent in a written instru#ent re$ardin$ pay#ent of consideration is #erely in the nature of a

receipt and #ay"e contradicted. P:C deposited the proceeds of the loan "ut on the sa#e day withdrew the# fro# Sar#ientoAs account. Alternative Causes of Action or ,efenses. A party #ay set forth two or #ore state#ents of a clai# or defense alternatively or hypothetically% either in one cause of action or defense or in separate causes of action or defenses. 6hen two or #ore state#ents are #ade in the alternative and one of the# if #ade independently would "e sufficient% the pleadin$ is not #ade insufficient "y the insufficiency of one or #ore of the alternative state#ents. (Sec. &% Rule 8+ ,efenses and o"!ections not pleaded. ,efenses and o"!ections not p!e ded eit+er in 'otion to dis'iss or in t+e ns"er are dee#ed " i#ed. 7owever% when it appears fro# the pleadin$s or the evidence on record that the court has no !urisdiction over the su"!ect #atter% that there is another action pendin$ "etween the sa#e parties for the sa#e cause% or that the action is "arred "y a prior !ud$#ent or "y statute of li#itations% the court shall dis#iss the clai#. (Sec. 1% Rule 9+ Jaton v. Palanca So#"rero *sland land dispute where Jaton applied for conversion of the land and was $ranted "ut failed to apply for a ho#estead application% thus others were a"le to $ain a foothold on JatonAs efforts to convert the land. Jaton had no cause of action to contest the ho#estead applications "ecause he was not the owner of the land neither did was he authori8ed to as@ for reversion of the converted land (only Solicitor 'eneral had that power+. he court also has the discretion to dis#iss an action which was ti#e "arred due to prescription. A#en Notes .// Dec 630

ec :i v. Charted :an@ of *ndia Pled$e "etween the "an@ and 5a Brania Ci$ar Cactory was not "indin$ on ec :i and third parties "ecause ec :i was not privy to the a$ree#ent and it was not e#"odied in a pu"lic instru#ent. he Hthe "an@As a"solute and e9clusive possession of the to"accoN as alle$ed "y ec :i in his co#plaint was not an ad#ission "ecause it was a wron$ conclusion of law. Phil. Advertisin$ v. Revilla Southern *ndustries ad#itted to the e9istence of the de"t throu$h its attach#ents in its answer to the co#plaint (two docu#ents< one detailin$ the periodic pay#ents and the other listin$ Phil. Advertisin$ as a creditor+.

51 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

Anne9es to the answer are dee#ed part of the answer. 6hat are the three ways of denial> 1. 4aterial ,enial &. Partial ,enial 0. ,enial throu$h insufficient infor#ation or @nowled$e sufficient to for a "elief as to the truth of a #aterial aver#ent P:C v. CA 6hat is proven under Section 8% Rule 8 is the due e9ecution and $enuineness of the docu#ent "ut not as to the truth of the #atter alle$ed in the docu#ent (the receipt of the #oney+. 6hat is ad#itted upon the su"#ission of an actiona"le docu#ent without specific denial under oath of the opposin$ party> he su"#ission of the actiona"le docu#ent ad#its the $enuineness nd due e)ecution o& t+e "ritten instru'ent "ut not the truth of #atters alle$ed therein. 'enuineness #eans that the docu#ent is truly what they purport to "e and that they are free fro# for$ery or counterfeitin$. ,ue e9ecution of a docu#ent pertains to the perfor#ance of all acts necessary (for#al and su"stantial re-uire#ents+ to render it co#plete as an instru#ent and i#ports the idea that nothin$ re#ains to "e done to #a@e co#plete and effective the docu#ent. Jaton v. Palanca Jaton only converted So#"rero *sland to aliena"le land "ut failed to apply for a ho#estead patent. Jaton had no le$al capacity to sue. A#en Notes ./3 Dec 630

have "een denied% if the denial was not #ade under oath> 1. Actiona"le docu#ents #ust "e denied under oath. (Sec. 8% Rule 8+. &. Alle$ations of usury #ust also "e denied under oath. (Sec. 11% Rule 8+. P:C v CA :orrower ad#itted to the pro#issory note "ut denied that the proceeds were ever received. he loan and the acco#panyin$ note were not effectively denied "ecause the denial was not #ade under oathK denial in the answer was thus defective. *n effect% there was an ad#ission as to the correctness of the pro#issory note. 7owever% this ad#ission is li#ited to the $enuineness and due e9ecution of the docu#ent and not as to the correctness of the contents. here was no ad#ission that the proceeds of the loan were ever received. Jaton v. Palanca his was the case of ho#estead patents $ranted over So#"rero *sland and not to Jaton who had applied for the pu"lic property to "e converted. *n the respondentAs #otion to dis#iss% they raised the issues of lac@ of capacity to sue and estoppel "y laches. *n the decision of the SC% Pan$ani"an added another "asis for dis#issal of a clai#% which was failure to state a cause of action. (cVf Sec.1% Rule 9 which enu#erates the only causes "y which the court can #otu propio dis#iss a case< lac@ of !urisdiction% litis pendentia% res !udicata and prescription+% S Pan$ani"an see#ed to add one #ore condition for #otu propio dis#issal of a clai# "y the court which is failure to state a cause of action. 4aAa# "elieves this rulin$ would ne$ate the privile$es of a#end#ents to the pleadin$ to confor# to the evidence (Sec.;% Rule 1/+. Pana$ni"an did not specifically say that the rulin$ a#ended Rule 1.. (cVf dis#issal of an action "y the court #otu propio Sec. 0% Rule 17+ *s an alternative defense the sa#e as an alternative defendant> ,uh>X A party #ay set forth two or #ore state#ents of alternative defenses. (Sec. &% Rule 8+. Alternative defendants refer to several parties upon who# a co#plainant is uncertain who a#on$ the# he is entitled to relief. (Sec. 10% Rule 0+. 6hat are the two types of defenses> (Sec. ;% Rule .+ 1. Ne$ative &. Affir#ative 6hat are the classes of ne$ative defenses or denials> (Sec. 1/% Rule 8+ 1. specific denial &. partial denial

6hat is a ne$ative pre$nant> A ne$ative pre$nant is when there is a denial of a fact% which at the sa#e ti#e involves an affir#ative i#plication. *t is therefore an ad#ission and is not an effective denial. 'ive an e9a#ple of a ne$ative pre$nant. *n a co#plaint for the su# of #oney% the Plaintiff A states that the ,efendant : "orrowed fro# hi# P14 on ,ece#"er 0/% &//3 so that ,efendant : could purchase firewor@s for the New Gear Cele"rations. ,efendant : in his answer stipulates that he did not "orrow P14 fro# Plaintiff A on ,ece#"er 0/% &//3 "ecause he "orrowed the #oney on ,ece#"er 01% &//3. here is no effective denial of the #aterial alle$ations only a denial of the -ualifyin$ conditions. 6hat @inds of alle$ations% even if specifically denied in the answer of the defendant% are dee#ed not to

52 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

0. defendant is without @nowled$e or infor#ation sufficient to for# a "elief as to the truth of the #aterial aver#ent. 6hat is a default order> 6hat its effects to the case> (Sec. 0% Rule 9+ A default order is a declaration "y the court that the defendin$ party is in default "ecause of its failure to answer the clai# within the ti#e allowed. An default order is upon #otion of the clai#in$ party with notice to the defendin$ party and proof of such failure. 1CC1C S< a. A party in default shall "e entitled to notice of su"se-uent proceedin$s "ut not to ta@e part in the trial. (4a@i@ita #o na niluluto @a sa sarili #on$ #anti@a D 4aAa#% super si8e #eX+ ". Bpon its discretion% the court #ay re-uire the clai#ant to su"#it evidence. c. Court will render !ud$#ent $rantin$ the relief prayed for "y the clai#ant. (*n short% plaintiff wins.+ *s a #otion to declare a defendant in default the sa#e as a #otion for !ud$#ent on the pleadin$s> No% #otion for an order of default is pre#ised upon failure of the defendant to answer with the ti#e allowed. (Sec. 0% Rule 9+ A #otion for !ud$#ent on the pleadin$s happens when the defendant files an answer "ut his answer fails to tender an issue or ad#its the #aterial alle$ations of the adverse partyAs pleadin$s. (Sec. 1% Rule 03+ 6hat are the conse-uences of a default !ud$#ent> a. Party clai#ant assu#es total victory. ". Relief $ranted "y the court should not "e different in @ind or a#ount as to what is prayed for and should not include unli-uidated da#a$es. (cVf Sec.11% Rule 8+ Na#e all the re#edies that a defendant party upon a default !ud$#ent a$ainst hi#. 1. #otion to set aside the default !ud$#ent D "efore !ud$#ent (Sec. 0% Rule 9+ &. #otion for new trial D after !ud$#ent of default "ut durin$ appeal (Sec. 1(a+% Rule 07+ 0. petition for relief of !ud$#ent D when !ud$#ent has "eco#e final (Rule 08+ 3. appeal fro# !ud$#ent (Sec. 1% Rule 31+ ;. petition for certiorari (Rule .;+ .. annul#ent of !ud$#ent (Rule 37+ 6hat are the re-uisites in order for a defaultin$ defendant can file a #otion to set aside default !ud$#ent> a. 4otion #ust "e filed after notice of default order and "efore !ud$#ent. ". ,efendant #ust show that his failure to answer was "ecause of fraud% accident% #ista@e or e9cusa"le ne$li$ence (CA41+ c. ,efendant #ust show that he has a #eritorious defense to the clai#s presented "y the plaintiff.

3. Reply ,efinition. An answer #ay "e responded to "y a reply. (Sec. &% Rule .+ A reply is a pleadin$% the office or function of which is to deny% or alle$e facts in denial or avoidance of new #atters alle$ed "y way of defense in the answer and there"y !oin or #a@e issue as to such new #atters. *f a party does not file such reply% all the new #atters alle$ed in the answer are dee#ed controverted. *f the plaintiff wishes to interpose any clai#s arisin$ out of the new #atters so alle$ed% such clai#s shall "e set forth in an a#ended or supple#ental co#plaint. (Sec. 1/% Rule .+ A#en Notes .E Dec 630

A reply is a denial of the new issues or #atters raised in the answer. *f there is no reply filed "y the plaintiff% all new #atters raised in the answer of the defendant is dee#ed to "e controverted. *f plaintiff wishes to raise new #atters after the defendant has filed an answer% he can do so "y a#endin$ or supple#entin$ his co#plaint. A reply is filed to #a@e the issues clearer to the court. ;. Co##on Provisions a. Parts of a Pleadin$ (Rule 7+ Caption. he caption sets forth the na#e of the court% the title of the action% and the doc@et nu#"er if assi$ned. he title of the action indicates the na#es of the parties. hey shall all "e na#ed in the ori$inal co#plaint or petitionK "ut in su"se-uent pleadin$s% it shall "e sufficient if the na#e of the first party on each side "e stated with an appropriate indication when there are other parties. heir respective participation in the case shall "e indicated. (Sec. 1% Rule 7+ he :ody. he "ody of the pleadin$ sets forth its desi$nation% the alle$ations of the partyTs clai#s or defenses% the relief prayed for% and the date of the pleadin$. (a+ Paragraphs. 2 he alle$ations in the "ody of a pleadin$ shall "e divided into para$raphs so nu#"ered as to "e readily identified% each of which shall contain a state#ent of a sin$le set of circu#stances so far as that can "e done with

53 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

convenience. A para$raph #ay "e referred to "y its nu#"er in all succeedin$ pleadin$s. ("+ /eadings. 2 6hen two or #ore causes of action are !oined% the state#ent of the first shall "e prefaced "y the words Ifirst cause of action%I of the second "y Isecond cause of action%I and so on for the others. 6hen one or #ore para$raphs in the answer are addressed to one of several causes of action in the co#plaint% they shall "e prefaced "y the words Ianswer to the first cause of actionI or Ianswer to the second cause of actionI and so onK and when one or #ore para$raphs of the answer are addressed to several causes of action% they shall "e prefaced "y words to that effect. (c+ 1elie!. 2 he pleadin$ shall specify the relief sou$ht% "ut it #ay add a $eneral prayer for such further or other relief as #ay "e dee#ed !ust or e-uita"le. (d+ )ate. 2 1very pleadin$ shall "e dated. (Sec. &% Rule 7+ Si$nature and address. 1very pleadin$ #ust "e si$ned "y the party or counsel representin$ hi#% statin$ in either case his address which should not "e a post office "o9. he si$nature of counsel constitutes a certificate "y hi# that he has read the pleadin$K that to the "est of his @nowled$e% infor#ation% and "elief there is $ood $round to support itK and that it is not interposed for delay. An unsi$ned pleadin$ produces no le$al effect. 7owever% the court #ay% in its discretion% allow such deficiency to "e re#edied if it shall appear that the sa#e was due to #ere inadvertence and not intended for delay. Counsel who deli"erately files an unsi$ned pleadin$% or si$ns a pleadin$ in violation of this Rule% or alle$es scandalous or indecent #atter therein% or fails to pro#ptly report to the court a chan$e of his address% shall "e su"!ect to appropriate disciplinary action. (Sec. 0% Rule 7+ )erification. 19cept when otherwise specifically re-uired "y law or rule% pleadin$s need not "e under oath% verified or acco#panied "y affidavit. A pleadin$ is verified "y an affidavit that the affiant has read the pleadin$ and that the alle$ations therein are true and correct of his @nowled$e and "elief. A pleadin$ re-uired to "e verified which contains a verification "ased on Iinfor#ation and "elief%I or upon I@nowled$e% infor#ation and "elief%I or lac@s a proper verification% shall "e treated as an unsi$ned pleadin$. (Sec. 3% Rule 7+ Certification a$ainst foru# shoppin$. he plaintiff or principal party shall certify under oath in the co#plaint or other initiatory pleadin$ assertin$ a clai# for relief% or in a sworn certification anne9ed thereto and si#ultaneously

filed therewith< (a+ that he has not theretofore co##enced any action or filed any clai# involvin$ the sa#e issues in any court% tri"unal or -uasi2 !udicial a$ency and% to the "est of his @nowled$e% no such other action or clai# is pendin$ thereinK ("+ if there is such other pendin$ action or clai#% a co#plete state#ent of the present status thereofK and (c+ if he should thereafter learn that the sa#e or si#ilar action or clai# has "een filed or is pendin$% he shall report that fact within five (;+ days therefro# to the court wherein his aforesaid co#plaint or initiatory pleadin$ has "een filed. Cailure to co#ply with the fore$oin$ re-uire#ents shall not "e cura"le "y #ere a#end#ent of the co#plaint or other initiatory pleadin$ "ut shall "e cause for the dis#issal of the case without pre!udice% unless otherwise provided% upon #otion and after hearin$. he su"#ission of a false certification or non2co#pliance with any of the underta@in$s therein shall constitute indirect conte#pt of court% without pre!udice to the correspondin$ ad#inistrative and cri#inal actions. *f the acts of the party or his counsel clearly constitute wilful and deli"erate foru# shoppin$% the sa#e shall "e $round for su##ary dis#issal with pre!udice and shall constitute direct conte#pt% as well as a cause for ad#inistrative sanctions. (Sec. ;% Rule 7+ SC Circu! r 3I J 1666 $O9 $/E CO:1$ O; APPEALS& SA2) GA2-ACA2& CO:1$ O; $A< APPEALS& 1EG O2AL $1 AL CO:1$S& S/A1 DA ) S$1 C$ CO:1$S& ME$1OPOL $A2 $1 AL CO:1$S& M:2 C PAL $1 AL CO:1$S 2 C $ ES& M:2 C PAL $1 AL CO:1$S& M:2 C PAL C 1C: $ $1 AL CO:1$S A2) S/A1 DA C 1C: $ CO:1$S' S:-JEC$9 A'M' 2o' 88>.>+8>SC' 1E9 AME2)ME2$S $O SEC$ O2 E& 1:LE 3 A2) SEC$ O2 +0& 1:LE E+ O; $/E +,,3 1:LES O; C = L P1OCE):1E'
Cor the infor#ation and $uidance of all concerned% -uoted hereunder are the a#ended provisions in the 1997 Rules of Civil Procedure< (a+ Section 3 of Rule 7< and ("+ Section 10 of Rule 31% to wit< HRULE E Sec. 3. =eri!ication. 2 19cept when otherwise specifically re-uired "y law or rule% pleadin$s need not "e under oath% verified or acco#panied "y affidavit. A pleadin$ is verified "y an affidavit that the affiant has read the pleadin$ and that the alle$ations therein are true and correct of his personal @nowled$e or "ased on authentic records. A pleadin$ re-uired to "e verified which contains a verification "ased on Iinfor#ation and "elief% or upon I@nowled$e% infor#ation and "elief%I or lac@s a proper verification% shall "e treated as an unsi$ned pleadin$. (3a+

54 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 RULE 3/ S1C 10. )ismissal o! appeal.2 Prior to the trans#ittal of the ori$inal record or the record on appeal to the appellate court% the trial court #ay% motu propio or on #otion% dis#iss the appeal for havin$ "een ta@en out of ti#e or non2pay#ent of the doc@et and other lawful fees within the re$le#entary period.(10a+I he fore$oin$ a#end#ents too@ effect last 4ay 1% &///.

JONATHAN PAMPOLINA

S A case is $iven a doc@et nu#"er after rafflin$ of the case with the different "ranches of the R C. here is a central doc@etin$ office which caters to one R C% which has #any "ranches. he title of the case and pleadin$ are one and the sa#e. rue or Calse. Calse. he title of the case or action states the na#es of the parties and their participation in the case i.e. 4s. 4a$alan$% Plaintiff v. 4s. 4ahinhin% ,efendant. he title of the pleadin$ is its desi$nation% i.e. Co#plaint for Su# of 4oney. Alle$ations are re-uired to "e divided into nu#"ered para$raphs to prevent lon$2winded pleadin$s. Counsel for$ot to si$n a Co#plaint for a Su# of 4oney. 6hat is the effect> (Sec. 0% Rule 7+ An unsi$ned pleadin$ is without le$al effect "ecause the si$nature is a certification or warranty that< a. counsel has read the pleadin$ ". counsel has a $ood $round for action c. pleadin$ was not intended for delay *n relation to the pleadin$s su"#itted "y counsel% what actions "y counsel would su"!ect hi# to disciplinary action> (Sec. 0% Rule 7+ 1. Counsel files an unsi$ned pleadin$. &. Counsel si$ns a pleadin$ in violation of Rule 7. 0. Counsel alle$es scandalous or indecent #atter in the pleadin$. 3. Counsel fails to report a chan$e of his address. 1OP5ANA *=N =C 71 4A*5 R1'*S RG SGS 14. Bnli@e an ordinary #ail% the re$istered #ail is delivered to the recipient with a re$istry return card that will "e $iven "ac@ to the sender. he recipient of the re$istered #ail will si$n the return card as proof of delivery of the #ail. 6hat is the effect of verification> (Sec. 3% para$raph &% Rule 7+ 1. Affiant has read the pleadin$. &. he alle$ations in the pleadin$ are true and correct of his personal @nowled$e or "ased on authentic records. Cil 1state 'olf v. CA Pleadin$s in "oth cases were the sa#e as proved "y the use of the sa#e cedula in "oth co#plaints. his ne$ated the clai# of 5ayos that the first co#plaint was not authori8ed "y hi#. ,:P v. CA Atty. 'alaport of ,:P should have si$ned the pleadin$ "ecause he was the special sheriff who conducted the e9tra2!udicial foreclosure. *f foru# shoppin$ is wilful and deli"erate and not inadvertently% what is the effect on the pleadin$>

Cil 1state 'olf v. CA his involved the two cases filed "y 5ayos a$ainst C1RC and C1',*% which had constructed a hi$hway interchan$e in a lot alle$edly owned "y 5ayos. he first case (R C D :inan+ was denied "ecause 5ayos was una"le to su"stantiate his clai#. *n the second case (R C D San Pedro+% C1',* filed a #otion to dis#iss citin$ the previous rulin$ of the issue. 5ayos resorted to foru# shoppin$ since the co#plaints in "oth cases were identical and that there was identity of parties even if C1',* was not i#pleaded in the first co#plaint "ut only in the second co#plaint. Coru# shoppin$% an act of #alpractice% is proscri"ed and conde#ned as triflin$ with the courts and a"usin$ their processes. *t is i#proper conduct that de$rades the ad#inistration of !ustice. (:u$nay Construction v. 5aron+ ,:P v. CA 6ee v. 'alve8

A#en

Notes ./3 Dec 630

Counterclai# and crossclai# #ust have a certification a$ainst non2foru# shoppin$. rue or Calse. (Sec. ;% Rule 7+ Calse. he certification a$ainst non2foru# shoppin$ is li#ited to co#plaints or other initiatory pleadin$s. he counterclai# and crossclai# are not initiatory pleadin$s "ecause they are ancillary actions. 6hat pleadin$s #ust "e verified> *nitiatory pleadin$s and appeals need to "e verified. Sa#ple Caption. Repu"lic of the Philippines Re$ional rial Court :ranch 1&0

55 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA decision without settin$ forth #atter showin$ !urisdiction to render it. (Sec. .% Rule 8+

1. *t will "e a $round for su##ary dis#issal with pre!udice. &. *t shall constitute direct conte#pt. 0. *t will "e a cause for ad#inistrative sanctions. 6ee v. 'alve8 he court allowed reasona"le co#pliance with the certification a$ainst foru# shoppin$ (CCS+ when it allowed the dau$hter of a non2resident co#plainant to si$n the CCS. he dau$hter was $iven a special power of attorney to si$n all papers and docu#ents includin$ the co#plaint. *t was the dau$hter who had actual and personal @nowled$e of whether or not an action prior to the co#plaint was initiated. ". 4anner of 4a@in$ Alle$ations (Rule 8+ *n $eneral.
1very pleadin$ shall contain in a #ethodical and lo$ical for#% a plain% concise and direct state#ent of the ulti#ate facts on which the party pleadin$ relies for his clai# or defense% as the case #ay "e% o#ittin$ the state#ent of #ere evidentiary facts. *f a defense relied on is "ased on law% the pertinent provisions thereof and their applica"ility to hi# shall "e clearly and concisely stated. (Sec. 1% Rule 8+

Action or defense "ased on docu#ent.
6henever an action or defense is "ased upon a written instru#ent or docu#ent% the su"stance of such instru#ent or docu#ent shall "e set forth in the pleadin$% and the ori$inal or a copy thereof shall "e attached to the pleadin$ as an e9hi"it% which shall "e dee#ed to "e a part of the pleadin$% or said copy #ay with li@e effect "e set forth in the pleadin$. (Sec. 7% Rule 8+ 6hen an action or defense is founded upon a written instru#ent% copied in or attached to the correspondin$ pleadin$ as provided in the precedin$ section% the $enuineness and due e9ecution of the instru#ent shall "e dee#ed ad#itted unless the adverse party% under oath% specifically denies the#% and sets forth what he clai#s to "e the factsK "ut the re-uire#ent of an oath does not apply when the adverse party does not appear to "e a party to the instru#ent or when co#pliance with an order for an inspection of the ori$inal instru#ent is refused. (Sec. 8% Rule 8+

=fficial docu#ent or act.
*n pleadin$ an official docu#ent or official act% it is sufficient to aver that the docu#ent was issued or the act done in co#pliance with law. (Sec. 9% Rule 8+

Specific denial.

Alternative causes of action or defenses.

A party #ay set forth two or #ore state#ents of a clai# or defense alternatively or hypothetically% either in one cause of action or defense or in separate causes of action or defenses. 6hen two or #ore state#ents are #ade in the alternative and one of the# if #ade independently would "e sufficient% the pleadin$ is not #ade insufficient "y the insufficiency of one or #ore of the alternative state#ents. (Sec. &% Rule 8+

Conditions precedent.

A defendant #ust specify each #aterial alle$ation of fact the truth of which he does not ad#it and% whenever practica"le% shall set forth the su"stance of the #atters upon which he relies to support his denial. 6here a defendant desires to deny only a part of an aver#ent% he shall specify so #uch of it as is true and #aterial and shall deny only the re#ainder. 6here a defendant is without @nowled$e or infor#ation sufficient to for# a "elief as to the truth of a #aterial aver#ent #ade in the co#plaint% he shall so state% and this shall have the effect of a denial. (Sec. 1/% Rule 8+

*n any pleadin$ a $eneral aver#ent of the perfor#ance or occurrence of all conditions precedent shall "e sufficient. (Sec. 0% Rule 8+

Alle$ations not specifically denied dee#ed ad#itted.
4aterial aver#ent in the co#plaint% other than those as to the a#ount of unli-uidated da#a$es% shall "e dee#ed ad#itted when not specifically denied. Alle$ations of usury in a co#plaint to recover usurious interest are dee#ed ad#itted if not denied under oath. (Sec. 11% Rule 8+

Capacity.
Cacts showin$ the capacity of a party to sue or "e sued or the authority of a party to sue or "e sued in a representative capacity or the le$al e9istence of an or$ani8ed association of persons that is #ade a party% #ust "e averred. A party desirin$ to raise an issue as to the le$al e9istence of any party or the capacity of any party to sue or "e sued in a representative capacity% shall do so "y specific denial% which shall include such supportin$ particulars as are peculiarly within the pleaderTs @nowled$e. (Sec. 3% Rule 8+

Perpetual Savin$s v. Ca!ardo 6ee v 'alve8

Craud% #ista@e% condition of the #ind.
*n all aver#ents of fraud or #ista@e% the circu#stances constitutin$ fraud or #ista@e #ust "e stated with particularity. 4alice% intent% @nowled$e or other condition of the #ind of a person #ay "e averred $enerally. (Sec. ;% Rule 8+

A#en

Notes ./3 Dec 630

a"le of Alle$ations 'enerally or Specifically Averred. 'enerally Averred 2 perfor#ance or occurrence of all conditions precedent 2 facts showin$ the capacity to sue or Specifically Averred 2 when party raises an issue as to le$al e9istence of party or its capacity to sue or authority to sue in a

Jud$#ent.

*n pleadin$ a !ud$#ent or decision of a do#estic or forei$n court% !udicial or -uasi2!udicial tri"unal% or of a "oard or officer% it is sufficient to aver the !ud$#ent or

5 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA *f the defendin$ party fails to answer within the ti#e allowed therefor% the court shall% upon #otion of the clai#in$ party with notice to the defendin$ party% and proof of such failure% declare the defendin$ party in default. hereupon% the court shall proceed to render !ud$#ent $rantin$ the clai#ant such relief as his pleadin$ #ay warrant% unless the court in its discretion re-uires the clai#ant to su"#it evidence. Such reception of evidence #ay "e dele$ated to the cler@ of court. (a+ E!!ect o! order o! de!ault . 2 A party in default shall "e entitled to notice of su"se-uent proceedin$s "ut not to ta@e part in the trial. ("+ 1elie! !rom order o! de!ault. 2 A party declared in default #ay at any ti#e after notice thereof and "efore !ud$#ent file a #otion under oath to set aside the order of default upon proper showin$ that his failure to answer was due to fraud% accident% #ista@e or e9cusa"le ne$li$ence and that he has a #eritorious defense. *n such case% the order of default #ay "e set aside on such ter#s and conditions as the !ud$e #ay i#pose in the interest of !ustice. (c+ E!!ect o! partial de!ault. 2 6hen a pleadin$ assertin$ a clai# states a co##on cause of action a$ainst several defendin$ parties% so#e of who# answer and the others fail to do so% the court shall try the case a$ainst all upon the answers thus filed and render !ud$#ent upon the evidence presented. (d+ Extent o! relie! to be a%arded. 2 A !ud$#ent rendered a$ainst a party in default shall not e9ceed the a#ount or "e different in @ind fro# that prayed for nor award unli-uidated da#a$es. (e+ ?here no de!aults allo%ed. 2 *f the defendin$ party in an action for annul#ent or declaration of nullity of #arria$e or for le$al separation fails to answer% the court shall order the prosecutin$ attorney to investi$ate whether or not a collusion "etween the parties e9ists% and if there is no collusion% to intervene for the State in order to see to it that the evidence su"#itted is not fa"ricated. (Sec. &% Rule 9+

authority of a party to sue in a representative capacity 2 le$al e9istence of an or$ani8ed association of persons that is #ade a party 2 #alice% intent% @nowled$e or other condition of the #ind of a person 2 pleadin$ a decision or !ud$#ent of a court without settin$ forth #atter showin$ !urisdiction to render it 2 that the docu#ent was issued or the act done was in co#pliance with the law

representative capacity. 2 all aver#ents of fraud or #ista@es and the circu#stance constitutin$ the#

A#en

Notes ./E Dec 630

7ow do you plead an official act or docu#ent> *t is enou$h to #erely aver that the docu#ent was issued or the act done in co'p!i nce "it+ t+e ! ". 7ow do you cite a provision of law in your pleadin$s which is the "asis of your defense> he defendant #ust clearly and concisely state< 1. the pertinent provision of law &. the applica"ility of such provision of law to hi#. 6ee v. 'alve8 he lead sentence was lac@in$ the word Hco#pro#iseN. :ut conditions precedent need only "e $enerally averred fro# the alle$ations of the co#plaint. c. 1ffect of Cailure to Plead (Rule 9+ ,efenses and o"!ections not pleaded.
,efenses and o"!ections not pleaded either in a #otion to dis#iss or in the answer are dee#ed waived. 7owever% when it appears fro# the pleadin$s or the evidence on record that the court has no !urisdiction over the su"!ect #atter% that there is another action pendin$ "etween the sa#e parties for the sa#e cause% or that the action is "arred "y a prior !ud$#ent or "y statute of li#itations% the court shall dis#iss the clai#. (Sec. 1% Rule 9+

Jud$e to receive evidenceK ,ele$ation to cler@ of court.
he !ud$e of the court where the case is pendin$ shall personally receive the evidence to "e adduced "y the parties. 7owever% in default or e9 parte hearin$s% and in any case where the parties a$ree in writin$% the court ' y de!e$ te t+e reception o& e#idence to its c!er( o& court who is a 'e'%er o& t+e % r. he cler@ of court shall have no power to rule on o"!ections to any -uestion or to the ad#ission of e9hi"its% which o"!ections shall "e resolved "y the court upon su"#ission of his report and the transcripts within ten (1/+ days fro# ter#ination of the hearin$. (Sec. 9% Rule 0/+

Co#pulsory counterclai#% or cross2clai#% not set up "arred.

A co#pulsory counterclai#% or a cross2clai#% not set up shall "e "arred. (Sec. &% Rule 9+

,efaultK declaration of.

an v. ,u#arpa ,u#arpa was a State Prosecutor who o"tained a fa@e receipt to cover his cash advance fro# an the caterer. A suit was filed a$ainst ,u#arpa and in turn% ,u#arpa filed a li"el suit a$ainst an% for #alicious pu"lication of what transpired in the 4anila i#es. After denial of her 4 ,% an was not a"le to appear at the pre2trial and was declared in default. an @new of the default !ud$#ent when appeal was still availa"le to her. So% she should have filed a #otion for new trial. rial court deprived an of due process "y sayin$ that her 4otion for Reconsideration was #erely pro for#a and "y

5! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

disallowin$ her to prove that she was not notified of the pre2trial. Cere8o v. uason

"ecause there are so#e defenses that are personal to each and every defendant. Cere8o v. uason *n Cere8o% the court was #ore strict in denyin$ the re2hearin$ of their case% as co#pared to an% where the court was #ore li"eral in allowin$ a rehearin$. :ut in Cere8o% she had no #eritorious defense. here was no reason for her petition for review "ecause there was no alle$ation of fraud% accident% #ista@e or e9cusa"le ne$li$ence. 6hat are the defendantAs re#edies for a default !ud$#ent> 1. 4otion to set aside order of default "ecause of fraud% accident% #ista@e or e9cusa"le ne$li$ence (CA41+. &. 4otion for new trial% within fifteen days to appeal (Rule 07+% also due to CA41. 0. Petition for Relief of Jud$#ent (cVf 5ina v. CA and uason v. CA+ 3. Appeal. ;. Certiorari (Rule .;+ filed within ./ days fro# issuance+. .. Annul#ent of !ud$#ent (Rule 37+ *n a relief for an order of default% what #ust "e alle$ed> 1. here #ust "e proper showin$ that his failure to file an answer was due to CA41. &. hat the defendant has a #eritorious defense. 6hen you appeal the order of default in a 4otion for New rial% what is "ein$ as@ed is to declare everythin$ ("oth the default order and default !ud$#ent+ to "e declared void. *s an order of default a final court order> No% an order of default is an interlocutory order. 6hen if a petition for relief fro# !ud$#ents or orders availa"le> (Sec. 0% Rule 08+ *t is availa"le only if the !ud$#ent has "eco#e final and e9ecutory and all other reliefs are no lon$er availa"le. *t #ust "e filed< a. ./ days after petitioner learns of the !ud$#ent% and ". not #ore than . #onths after such !ud$#ent or final order is entered. 6hat does a petition for relief -uestion> A petition for relief -uestions< 1. 6hen a !ud$#ent or final order is entered% or any other proceedin$ thereafter ta@en a$ainst a party in any court throu$h CA41. (Sec. 1% Rule 08+ &. 6hen a !ud$#ent or final order is rendered "y any court in a case% and a party thereto% "y CA41% has "een prevented fro# ta@in$ an appeal. (Sec.&% Rule 08+

A#en

Notes ./E Dec 630

6hat is the effect of a default order on the action> 1. the court renders a default !ud$#ent a$ainst the defendant. &. the court #ay as@ the plaintiff or clai#ant to present evidence e9 parte in support of his co#plaint. 6hat is the effect of default order to the defendant> 1. the defendant is entitled to notice of su"se-uent proceedin$s. &. defendant is% however% not allowed to ta@e part in the trial. 0. the e9tent or relief that #ay "e ad!ud$ed a$ainst hi# shall not e9ceed the a#ount or "e different in @ind fro# that prayed for nor award unli-uidated da#a$es. an v. ,u#arpa his was the case of alle$ations a$ainst prosecutor ,u#arpa for #alversation of pu"lic funds. an% who was the plaintiff% in the li"el case filed "y ,u#arpa% did not appear in the pre2trial% which has the sa#e effect as not filin$ an answer. he trial court #ade !ud$#ent on the #erits of the #otion for reconsideration without even hearin$ the facts as to the lac@ of notice of the pre2 trial which prevented an fro# appearin$ in the pre2 trial. 6hether or not they received notice of the pre2 trial is a -uestion of fact. S =rdinary appeal v. Petition for certiorari. An appeal% under Rule 3; Petition for Review% is where the sa#e case $oes throu$h the hierarchy of courts. he action under Rule .;% Petition for Certiorari% is an ori$inal action. Cor e9a#ple% in a case of A v. :% the trial court dis#issed the action for lac@ of verification and Certificate of Non2Coru# Shoppin$ (CCS+. A% now appeals the trial court decision for "ein$ e9ercised with $rave a"use of discretion% in a petition for certiorari entitled% : v. R C. 6hat is partial default> Partial default occurs when in an action where there are several defendants "ein$ sued "ased on one cause of action and so#e of the# fail to answer% the court shall try the case "ased on the answer of those who filed. he for#er rule was that when a defendant has a co##on defense% it inures to the "enefit of the others. A t present this is no lon$er strictly applied

5" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA section shall "e #ade upon #otion filed in court% and after notice to the adverse party% and an opportunity to "e heard. (Sec. 0% Rule 1/+

uason v. CA 6hen you -uestion the !ud$#ent of the trial court% then you should appeal. *f you cannot appeal "ecause you were prevented "y CA41% then use petition for relief. S :ut in Cere8o% SC said petition for relief was not proper. *n contrast with an% the su"!ect of the appeal was only an order of the court not a final decisionK 4aAa# says @awawa na#an si an% if she cannot use PR if appeal was not availa"le. *n an% the order of default was unfair "ecause notice was not received. SS Carpio in his opinion in Cere8o% says the loss of appeal was also due to CA41. 6hat are the $rounds for the #otion for annul#ent of !ud$#ent> (Sec. & and 0% Rule 37+ 1. 19trinsic fraud (action #ust "e filed within 3 years fro# its discovery.S &. lac@ of !urisdiction (action #ust "e filed "efore it is "arred "y laches or estoppel. S 19trinsic fraud shall not "e a valid $round if it was availed of% or could have "een availed of% in a #otion for new trial or petition for relief. (Sec. &% Rule 08+ d. stri@in$ out pleadin$s Stri@in$ out of pleadin$ or #atter contained therein.
Bpon #otion #ade "y a party "efore respondin$ to a pleadin$ or% if no responsive pleadin$ is per#itted "y these Rules% upon #otion #ade "y a party within twenty (&/+ days after the service of the pleadin$ upon hi#% or upon the courtTs own initiative at any ti#e% the court #ay order any pleadin$ to "e stric@en out or that any sha# or false% redundant% i##aterial% i#pertinent% or scandalous #atter "e stric@en out therefro#. (Sec.1&% Rule 8+

Cor#al a#end#ents.

A defect in the desi$nation of the parties and other clearly clerical or typo$raphical errors #ay "e su##arily corrected "y the court at any sta$e of the action% at its initiative or on #otion% provided no pre!udice is caused there"y to the adverse party. (Sec. 3% Rule 1/+

A#end#ent to confor# to or authori8e presentation of evidence.

6hen issues not raised "y the pleadin$s are tried with the e9press or i#plied consent of the parties% they shall "e treated in all respects as if they had "een raised in the pleadin$s. Such a#end#ent of the pleadin$s as #ay "e necessary to cause the# to confor# to the evidence and to raise these issues #ay "e #ade upon #otion of any party at any ti#e% even after !ud$#entK "ut failure to a#end does not affect the result of the trial of these issues. *f evidence is o"!ected to at the trial on the $round that it is not within the issues #ade "y the pleadin$s% the court #ay allow the pleadin$s to "e a#ended and shall do so with li"erality if the presentation of the #erits of the action and the ends of su"stantial !ustice will "e su"served there"y. he court #ay $rant a continuance to ena"le the a#end#ent to "e #ade. (Sec. ;% Rule 1/+

Supple#ental pleadin$s.
Bpon #otion of a party the court #ay% upon reasona"le notice and upon such ter#s as are !ust% per#it hi# to serve a supple#ental pleadin$ settin$ forth transactions% occurrences or events which have happened since the date of the pleadin$ sou$ht to "e supple#ented. he adverse party #ay plead thereto within ten (1/+ days fro# notice of the order ad#ittin$ the supple#ental pleadin$. (Sec. .% Rule 1/+

Cilin$ of a#ended pleadin$s.
6hen any pleadin$ is a#ended% a new copy of the entire pleadin$% incorporatin$ the a#end#ents% which shall "e indicated "y appropriate #ar@s% shall "e filed. (Sec. 7% Rule 1/+

.. A#ended and Supple#ental Pleadin$s. (Rule 1/+ A#end#ents in $eneral.
Pleadin$s #ay "e a#ended "y addin$ or stri@in$ out an alle$ation or the na#e of any party% or "y correctin$ a #ista@e in the na#e of a party or a #ista@en or inade-uate alle$ation or description in any other respect% so that the actual #erits of the controversy #ay speedily "e deter#ined% without re$ard to technicalities% and in the #ost e9peditious and ine9pensive #anner. (Sec. 1% Rule 1/+

1ffect of a#ended pleadin$s.
An a#ended pleadin$ supersedes the pleadin$ that it a#ends. 7owever% ad#issions in superseded pleadin$s #ay "e received in evidence a$ainst the pleaderK and clai#s or defenses alle$ed therein not incorporated in the a#ended pleadin$ shall "e dee#ed waived. (Sec. 8% Rule 1/+

Additional ,efendant.
*f an additional defendant is i#pleaded in a later pleadin$% the action is co##enced with re$ard to hi# on the date of the filin$ of such later pleadin$% irrespective of whether the #otion for its ad#ission% if necessary% is denied "y the court. (Sec. ;% Rule 1+

Jinds of A#end#ents. Amendments as a matter o! right'
A party #ay a#end his pleadin$ once as a #atter of ri$ht at any ti#e "efore a responsive pleadin$ is served or% in the case of a reply% at any ti#e within ten (l/+ days after it is served. (Sec. &% Rule 1/+

Amendments b" leave o! court'
19cept as provided in the ne9t precedin$ section% su"stantial a#end#ents #ay "e #ade only upon leave of court. :ut such leave #ay "e refused if it appears to the court that the #otion was #ade with intent to delay. =rders of the court upon the #atters provided in this

,auden 7ernande8 v. ,elos An$eles Actress 4arlene ,auden (si@at daw siya nun panahon ni 4aAa#+ sued 7ollywood Car 1ast Productions for P13% 7// for "alance of service rendered in two #otion pictures she #ade with the#. he trial court $ranted a 4otion to ,is#iss "ecause the clai# was not evidence "y a written

59 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

docu#ent and that the co#plaint was defective on its face. A 4otion for Recon was filed to a#end the co#plaint "ut it was also denied. A second 4otion for Recon was filed "ut it now as@ed that the denial of the first 4otion for Recon "e reviewed. rial court still denied the second #otion for recon. SC said it was an error for the trial court to dis#iss the co#plaint without $ivin$ the party plaintiff an opportunity to a#end the co#plaint% if she so chooses. A #otion to dis#iss is N= A R1SP=NS*)1 P51A,*N'X Plaintiff was entitled as a #atter of ri$ht to a#end his co#plaint. Philippine 19port v. Philippine *nfrastructures P1C5' e9ecuted ; letters of $uarantees to PN: for credit acco##odation in favor of Phil. *nfrastructure. Phil. *nfrastructure% et al% in turn si$ned an inde#nity a$ree#ent with P1C5'. Phil. *nfrastructure failed to pay PN: the loans. So PN: #ade clai#s on P1C5'% who then #ade clai#s a$ainst Phil. *nfrastructure. P1C5' sued Phil. *nfrastructure. ,urin$ the course of the proceedin$s% P1C5' paid PN: the a#ount due. P1C5'% then as@ed the court to a#end the co#plaint. 1ven if there was an affir#ative defense in the answer (failure to state a cause of action+% the issues not !oined are dee#ed ad#itted% if the defendant produces evidence to contradict the cause of action. he de"it #e#o for# PN: and the testi#ony of reasury ,epart#ent was presented to prove that P1C5' had already paid for the loan% and no o"!ection was raised to this presentation of evidence. A#en ./E Dec 630

party durin$ trial% the plaintiff can now as@ a#end#ent of the co#plaint to confor# to the evidence already presented in trial. (Sec. ;% Rule 1/+ 7. 6hen to Cile Responsive Pleadin$s. (Rule 11+ Answer to the co#plaint.
he defendant shall file his answer to the co#plaint within fifteen (l;+ days after service of su##ons% unless a different period is fi9ed "y the court. (Sec. 1% Rule 11+ 6here the defendant is a forei$n private !uridical entity and service of su##ons is #ade on the $overn#ent official desi$nated "y law to receive the sa#e% the answer shall "e filed within thirty (0/+ days after receipt of su##ons "y such entity. (Sec. &% Rule 11+

Answer to third (fourth% etc.+2 party co#plaint.

he ti#e to answer a third (fourth% etc.+2 party co#plaint shall "e $overned "y the sa#e rule as the answer to the co#plaint. (Sec. ;% Rule 11+

Answer to a#ended co#plaint% a#ended counterclai#% a#ended cross2clai#% a#ended third (fourth% etc.+ party co#plaint% and a#ended co#plaint2in2intervention.

6here the plaintiff files an a#ended co#plaint as a #atter of ri$ht% the defendant shall answer the sa#e within fifteen (l;+ days after "ein$ served with a copy thereof. 6here its filin$ is not a #atter of ri$ht% the defendant shall answer the a#ended co#plaint within ten (1/+ days fro# notice of the order ad#ittin$ the sa#e. An answer earlier filed #ay serve as the answer to the a#ended co#plaint if no new answer is filed. (Sec. 0% Rule 11+

Answer to supple#ental co#plaint.

,auden 7ernande8 v. ,elos An$eles A#end#ent of a pleadin$ is a #atter of ri$ht% if it is "efore a responsive pleadin$. A #otion to dis#iss is not a responsive pleadin$. *n this case% ,auden filed a petition for certiorari under Rule .; for $rave a"use of discretion% "ecause she could not appeal the denial of the 4otion for Reconsideration% as it was #erely a court order. S 4aAa# says it is "etter to file an answer with affir#ative defenses citin$ the $rounds for a #otion to dis#iss rather than filin$ a #otion to dis#iss. (Sec. .% Rule 1.+ P1C5' v. Phil. *nfrastructure his was a case involvin$ an inde#nity contract. P1C5' filed a #otion to a#end the co#plaint "ecause pay#ent was already #ade. rial court dis#issed the action for failin$ to state a cause of action. Court of Appeals said the real purpose of the a#end#ent was to introduce a new cause of action (C=A+. As to the CAAs point of introducin$ a new C=A% since there was no o"!ection "y the adverse

A supple#ental co#plaint #ay "e answered within ten (1/+ days fro# notice of the order ad#ittin$ the sa#e% unless a different period is fi9ed "y the court. he answer to the co#plaint shall serve as the answer to the supple#ental co#plaint if no new or supple#ental answer is filed. (Sec. 7% Rule 11+

Answer to counterclai# or cross2clai#.

A counterclai# or cross2clai# #ust "e answered within ten (l/+ days fro# service. (Sec. 3% Rule 11+

19istin$ counterclai# or cross2clai#.

A co#pulsory counterclai# or a cross2clai# that a defendin$ party has at the ti#e he files his answer shall "e contained therein. (Sec. 8% Rule 11+

Counterclai# or cross2clai# arisin$ after answer.
A counterclai# or a cross2clai# which either #atured or was ac-uired "y a party after servin$ his pleadin$ #ay% with the per#ission of the court% "e presented as a counterclai# or a cross2clai# "y supple#ental pleadin$ "efore !ud$#ent. (Sec. 9% Rule 11+

=#itted counterclai# or cross2clai#.

6hen a pleader fails to set up a counterclai# or a cross2clai# throu$h oversi$ht% inadvertence% or e9cusa"le ne$lect% or when !ustice re-uires% he #ay% "y leave of

0 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 court% set up the counterclai# or cross2clai# a#end#ent "efore !ud$#ent. (Sec. 1/% Rule 11+ "y

JONATHAN PAMPOLINA Fi!in$ is the act of presentin$ the pleadin$ or other paper to the cler@ of court. Ser#ice is the act of providin$ a party with a copy of the pleadin$ or paper concerned. *f any party has appeared "y counsel% service upon hi# shall "e #ade upon his counsel or one of the#% unless service upon the party hi#self is ordered "y the court. 6here one counsel appears for several parties% he shall only "e entitled to one copy of any paper served upon hi# "y the opposite side. (Sec. &% Rule 10+

Reply.
A reply #ay "e filed within ten (l/+ days fro# service of the pleadin$ responded to. (Sec. .% Rule 11+

19tension of ti#e to plead.
Bpon #otion and on such ter#s as #ay "e !ust% the court #ay e9tend the ti#e to plead provided in these Rules. he court #ay also% upon li@e ter#s% allow an answer or other pleadin$ to "e filed after the ti#e fi9ed "y these Rules. (Sec. 1/% Rule 11+

4anner of filin$.

A#en

Notes . 3 J n 630

6hen do you file responsive pleadin$> 'enerally there are two periods 1; days and 1/ days. 1; ,ays 1. Answer to an ori$inal co#plaint. &. Answer to an a#ended co#plaint% if a #atter of ri$ht 0. Answer to a third party co#plaint. 3. Answer to an a#ended counterclai#% a#ended cross2clai#% a#ended 0rd party co#plaint% and a#ended co#plaint in intervention. 1/ ,ays 1. Answer to a a#ended co#plaint% "y leave of court &. Answer to counterclai# or cross clai#. 0. Answer to a reply 3. Answer to supple#ental co#plaint.

he filin$ of pleadin$s% appearances% #otions% notices% orders% !ud$#ents and all other papers shall "e #ade "y presentin$ the ori$inal copies thereof% plainly indicated as such% person !!y to t+e c!er( o& court or %y sendin$ t+e' %y re$istered ' i!. *n the first case% the cler@ of court shall endorse on the pleadin$ the date and hour of filin$. *n the second case% the date of the #ailin$ of #otions% pleadin$s% or any other papers or pay#ents or deposits% as shown "y the post office sta#p on the envelope or the re$istry receipt% shall "e considered as the date of their filin$% pay#ent% or deposit in court. he envelope shall "e attached to the record of the case. (Sec. 0% Rule 10+

Papers re-uired to "e filed and served.

1very !ud$#ent% resolution% order% pleadin$ su"se-uent to the co#plaint% written #otion% notice% appearance% de#and% offer of !ud$#ent or si#ilar papers shall "e filed with the court% and served upon the parties affected. (Sec. 3% Rule 10+

4odes of service.
Service of pleadin$s% #otions% notices% orders% !ud$#ents and other papers shall "e #ade either< (Sec. ;% Rule 10+ a. personally or ". "y #ail.

A counterclai# is si#ilar to a co#plaint since it is a pleadin$ which asserts a clai# a$ainst another party. :ut why is a defendant to a counterclai# $iven only 1/ days to file an answer> :ecause the defendant of the counterclai# is the plaintiff in the ori$inal co#plaint. As he is the one who filed the ori$inal co#plaint% it is presu#ed that he would @now the #eat of the action. Can the court $rant an e9tension of ti#e> Ges% the court #ay $rant an e9tension of ti#e% in pursuit of the li"eral construction of the Rules. 8. Cilin$V Service of Pleadin$s% Jud$#ents and =ther Papers (Rule 10+ Covera$e.
his Rule shall $overn the filin$ of all pleadin$s and other papers% as well as the service thereof% e9cept those for which a different #ode of service is prescri"ed. (Sec. 1% Rule 10+

Personal service.

Service of the papers #ay "e #ade "y deliverin$ personally a copy to the party or his counsel% or "y leavin$ it in his office with his cler@ or with a person havin$ char$e thereof. *f no person is found in his office% or his office is not @nown% or he has no office% then "y leavin$ the copy% "etween the hours of ei$ht in the #ornin$ and si9 in the evenin$% at the partyTs or counselTs residence% if @nown% with a person of sufficient a$e and discretion then residin$ therein. (Sec. .% Rule 10+

Service "y Re$istered 4ail.

Service "y re$istered #ail shall "e #ade "y depositin$ the copy in the office% in a sealed envelope% plainly addressed to the party or his counsel at his office% if @nown% otherwise at his residence% if @nown% with posta$e fully pre2paid% and with instructions to the post#aster to return the #ail to the sender after ten (l/+ days if undelivered. (Sec. 7% Rule 10+

Service "y =rdinary 4ail.
*f no re$istry service is availa"le in the locality of either the sender or the addressee% service #ay "e done "y ordinary #ail. (Sec. 7% Rule 10+

Cilin$ and service% defined.

1 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA he re$istry return card shall "e filed i##ediately upon its receipt "y the sender% or in lieu thereof the unclai#ed letter to$ether with the certified or sworn copy of the notice $iven "y the post#aster to the addressee. (Sec. 10% Rule 10+

Su"stituted service.

*f service of pleadin$s% #otions% notices% resolutions% orders and other papers cannot "e #ade under the two precedin$ sections% the office and place of residence of the party or his counsel "ein$ un@nown% ser#ice ' y %e ' de %y de!i#erin$ t+e copy to t+e c!er( o& court% with proof of failure of "oth personal service and service "y #ail. he service is co#plete at the ti#e of such delivery. (Sec. 8% Rule 10+

Notice of lis pendens.

Service of !ud$#ents% final orders or resolutions.

Jud$#ents% final orders or resolutions shall "e served either personally or "y re$istered #ail. 6hen a party su##oned "y pu"lication has failed to appear in the action% !ud$#ents% final orders or resolutions a$ainst hi# shall "e served upon hi# also "y pu"lication at the e9pense of the prevailin$ party. (Sec. 9% Rule 10+

Co#pleteness of service.
delivery. Person ! ser#ice is co#plete upon actual Ser#ice %y ordin ry ' i! is co#plete upon the e9piration of ten (1/+ days after #ailin$% unless the court otherwise provides. Ser#ice %y re$istered ' i! is co#plete upon actual receipt "y the addressee% or after five (;+ days fro# the date he received the first notice of the post#aster% whichever date is earlier. (Sec. 1/% Rule 10+

*n an action affectin$ the title or the ri$ht of possession of real property% the plaintiff and the defendant% when affir#ative relief is clai#ed in his answer% #ay record in the office of the re$istry of deeds of the province in which the property is situated a notice of the pendency of the action. Said notice shall contain 1. the na#es of the parties and &. the o"!ect of the action or defense% and 0. a description of the property in that province affected there"y. =nly fro# the ti#e of filin$ such notice for record shall a purchaser% or encu#"rancer of the property affected there"y% "e dee#ed to have constructive notice of the pendency of the action% and only of its pendency a$ainst the parties desi$nated "y their real na#es he notice of lis pendens hereina"ove #entioned #ay "e cancelled only upon order of the court% after proper showin$ that the notice is for the purpose of #olestin$ the adverse party% or that it is not necessary to protect the ri$hts of the party who caused it to "e recorded. (Sec. 13% Rule 10+

Priorities in #odes of service and filin$.

SC Reso!ution o& Fe%ru ry /E, /DDI A#en Notes .3 J n 630

6henever practica"le% the service and filin$ of pleadin$s and other papers shall "e done personally. 19cept with respect to papers e#anatin$ fro# the court% a resort to other #odes #ust "e acco#panied "y a written e9planation why the service or filin$ was not done personally. A violation of this Rule #ay "e cause to consider the paper as not filed. (Sec. 11% Rule 10+

Proof of filin$.
he filin$ of a pleadin$ or paper shall "e proved "y its e9istence in the record of the case. *f it is not in t+e record% "ut is clai#ed to have "een filed personally% the filin$ shall "e proved "y the written or sta#ped ac@nowled$#ent of its filin$ "y the cler@ of court on a copy of the sa#eK if filed "y re$istered #ail% "y the re$istry receipt and "y the affidavit of the person who did the #ailin$% containin$ a full state#ent of the date and place of depositin$ the #ail in the post office in a sealed envelope addressed to the court% with posta$e fully prepaid% and with instructions to the post#aster to return the #ail to the sender after ten (1/+ days if not delivered. (Sec. 1&% Rule 10+

6hat are the #odes of service of pleadin$s and other papers> 1. Personal service &. Re$istered #ail. 0. Su"stituted service 3. Service "y pu"lication. S Accordin$ to 4aAa#% it is an unwritten rule that counsel #ust first serve the papers to the adverse party "efore filin$ to the court. 6hat are the ten @inds of pleadin$s and papers that are re-uired to "e filed and served> (Sec. 3% Rule 10+ Jud$#ent% resolution% order% pleadin$ su"se-uent to the co#plaint% written #otion% notice% appearance% de#and% offer of !ud$#ent or si#ilar paper. 4N14=N*C< JR=P6NA,=S. An ori$inal co#plaint has a special #ode of service which is throu$h su##ons. 7ow do you file !ud$#ents and final orders that are issued "y the court> he !ud$e files it directly with the cler@ of court. here will "e a certification "y the cler@ of court of the dispositive portion of the !ud$#ent and final order. 6hat is entry of !ud$#ent> 1ntry of !ud$#ent is when the period for appealin$ a !ud$#ent or final order has lapsed. *t is

Proof of service.
Proo& o& person ! ser#ice shall consist of a. a written ad#ission of the party served% or ". the official return of the server% or c. the affidavit of the party servin$% containin$ a full state#ent of the date% place and #anner of service. *f the ser#ice is %y ordin ry ' i! % proof thereof shall consist of an affidavit of the person #ailin$ of facts showin$ co#pliance with section 7 of this Rule. *f service is #ade "y re$istered ' i!% proof shall "e #ade "y a. such affidavit (#entioned a"ove+ and ". the re$istry receipt issued "y the #ailin$ office.

2 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

not the actual physical filin$% "ecause the !ud$#ent #ay have already "een entered% "ut the cler@ of court only records it three #onths thereafter. 4ode of Cilin$ Personally throu$h the cler@ of court who shall endorse on the pleadin$ the date and hour of filin$. :y sendin$ the# throu$h re$istered #ail. (the date of filin$% pay#ent or deposit in court shall "e the date of the #ailin$ as shown in the post office sta#p on the envelope% or the re$istry receipt. Proof of Cilin$% if N= in the Record he written or sta#ped ac@nowled$e#ent of its filin$ "y the cler@ of court on a copy of the pleadin$ or paper. :y the re$istry receipt and "y the affidavit of the person who did the #ailin$

Also an e#ployee of the court% the sheriff has other duties to the court aside fro# servin$ papers li@e in e#"ar$o or e9ecution of !ud$#ents. *f the party has counsel% service shall "e #ade on the counsel and not the party. *f the party e#ploys several counsels% service can "e li#ited to !ust one of the#% and not necessarily the lead counsel. *f several parties to an action have the sa#e counsel% that counsel is entitled only to one copy of the paper or pleadin$ to "e served. 7ow do you @now that a corporation is forei$n> he corporation is forei$n% if the co#pany was incorporated under the laws of a forei$n country. (test< where incorporated+ 9. Co#putation of i#e. (Rule &&+ 7ow to co#pute ti#e.
*n co#putin$ any period of ti#e prescri"ed or allowed "y these Rules% or "y order of the court% or "y any applica"le statute% a. t+e d y o& t+e ct or e#ent &ro' "+ic+ t+e desi$n ted period o& ti'e %e$ins to run is to "e e9cluded and ". t+e d te o& per&or' nce included. *f the ! st d y o& t+e period% as thus co#puted% falls on a Saturday% a Sunday% or a le$al holiday in the place where the court sits% the ti#e shall not run until the ne9t wor@in$ day. (Sec. 1% Rule &&+

6hat is a re$istry receipt> *s it the sa#e as a re$istry return card> A re$istry receipt is proof that you have entered #ail throu$h the re$istry service. *t is different fro# a re$istry return card% which proves that the sendee or person to who# the #ail is sent to has actually received the re$istered #ail. Service "y the Court 4odes of Service Personal Proof of Service 1. 6ritten Ad#ission of the party served% or &. =fficial return of the Server% or 0. Affidavit of the party servin$. 1. Affidavit of the person #ailin$ of facts showin$ co#pliance with Sec. 7% Rule 10% AN, &. Re$istry receipt issued "y the #ailin$ office. Affidavit of the person #ailin$ of facts showin$ co#pliance with Sec. 7% Rule 10. :y the records of the court.

1ffect of interruption.

Re$istered 4ail

Should an act "e done which effectively interrupts the runnin$ of the period% a. the allowa"le period after such interruption shall st rt to run on t+e d y &ter notice o& t+e cess tion o& t+e c use t+ereo&. ". he d y o& t+e ct t+ t c used t+e interruption shall "e e9cluded in the co#putation of the period. (Sec. &% Rule &&+

=rdinary 4ail (if no re$istry service is availa"le in the locality of either the sender or addressee+ Su"stituted Service to the Cler@ of Court Service "y Pu"lication (allowed only if su##ons was also "y pu"lication+

AC No. 66A1A/3 SC A#en Notes .3 J n 640

6hat #otions or pleadin$s interrupt the period for filin$ of the responsive pleadin$> 1. 4otion for 19tension of i#e &. 4otion to ,is#iss 0. 4otion for :ill of Particulars E' Motion to Amend Pleading 7ow are the provisions of Section 1 and Section & of Rule && different> Section 1 provides for the co#putation of the period. Section & conte#plates the co#putation of ti#e% when there is an interruption.

6hat is a process server> *s he also a sheriff> A process serve% as the na#e i#plies% is an e#ployee of the court% which serves the processes e#anatin$ fro# the court. (Court #essen$er+.

3 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA *f the #otion is $ranted% either in whole or in part% the co#pliance therewith #ust "e effected "it+in ten .!60 d ys &ro' notice o& t+e order% unless a different period is fi9ed "y the court. he "ill of particulars or a #ore definite state#ent ordered "y the court #ay "e filed either in a sep r te or in n 'ended p!e din$% servin$ a copy thereof on the adverse party. (Sec. 0% Rule 1&+

Counsel was to send a pleadin$ throu$h re$istered #ail on Criday% which was the last day for the period. :ut the P'4A declared Criday% a non2wor@in$ holiday in honor of San 5oren8o Rui8. :ut the post office continued to wor@ on Criday. Counsel was a"le to send the pleadin$ only on 4onday. ,id the period lapse> No. 1ven if the post office wor@s on the day of the holiday% the ti#e of the period would lapse only on 4onday. (6CC v. 'alan$+ PR=:514< June & Su##ons was served on the defendant. June 1. ,efendant files a #otion to dis#iss (4 ,+ "ased on lac@ of capacity to sue. July 1; 4 , of defendant is denied. July 18 Notice of denial of 4 , is $iven to ,efendant. July &0 ,efendant files an answer. ,id the period for filin$ the answer lapse> ANS61R< No% the answer was filed on ti#e. 1ven if the "alance of the period was only & days (June. 0 D June 1; is 10 days+% Sec. 3% Rule 17 allows the defendant in this case is entitled to file an answer not less than ; days fro# his receipt of the notice. (July 19 D July &0 is five days+. 5u8 v. National A#nesty his was the case where 5u8 applied for a#nesty "ut was denied and he appealed to the National A#nesty :oard. 7e filed two e9tensions. he court only allowed the first e9tension "ut denied the second e9tension for "ein$ filed out of ti#e. Bnder SC A42//2&213% the second #otion to e9tend should "e counted fro# actual last day of the period% which was ,ec. 7% even if it was a Saturday and not on the day where the e9tension was allowed to "e filed% which was ,ec. 9. 1/. :ill of Particulars. (Rule 1&+ 6hen applied forK Purpose.
:efore respondin$ to a pleadin$% a party #ay #ove for a definite state#ent or for a "ill of particulars of any #atter which is not averred with sufficient definiteness or particularity to ena"le hi# properly to prepare his responsive pleadin$. *f the pleadin$ is a reply% the #otion #ust "e filed within ten (1/+ days fro# service thereof. Such #otion shall point out the a. defects co#plained of% ". the para$raphs wherein they are contained% and c. the details desired. (Sec. 1% Rule 1&+

1ffect of non2co#pliance.
*f the order is not o"eyed% or in case of insufficient co#pliance therewith% the court #ay order the stri@in$ out of the pleadin$ or the portions thereof to which the order was directed or #a@e such other order as it dee#s !ust. (Sec. 3% Rule 1&+

Stay of period to file responsive pleadin$.

After service of the "ill of particulars or of a #ore definite pleadin$% or after notice of denial of his #otion% the #ovin$ party #ay file his responsive pleadin$ within the period to which he was entitled at the ti#e of filin$ his #otion% which shall not "e less than five (;+ days in any event. (Sec. ;% Rule 1&+

:ill of Particulars% A Part of the Pleadin$.

A "ill of particulars "eco#es part of the pleadin$ for which it is intended. (Sec. .% Rule 1&+

A#en

Notes .E J n 630

*s a #otion for a "ill of particulars a #atter of ri$ht> Ges. S 4aAa# wishes to stress that when a defendant files a 'otion &or %i!! o& p rticu! rs and it is $ranted% it is the plaintiff who is tas@ed to file the %i!! o& p rticu! rs. 7ow should a plaintiff co#ply with order to su"#it a "ill of particulars> 1. hrou$h a separate pleadin$. &. hrou$h an a#end#ent of the ori$inal co#plaint. S 4aAa# opines that it is "etter to a#end the co#plaint rather than su"#it a separate pleadin$ "ecause it is easier for the !ud$e to inspect and see the a#end#ents introduced. Re$ ! do Notes 6hat is the purpose of a "ill of particulars> *t is to ena"le the defendin$ party to properly prepare his responsive pleadin$. Courts should not "e left to con!ecture in the deter#ination of the issues su"#itted "y the liti$ants. *s the court duty "ound to always allow a #otion for a "ill of particulars> No. he $rantin$ of a #otion of a "ill of particulars lies within the sound discretion of the court.

Action "y the court.
Bpon the filin$ of the #otion% the cler@ of court #ust i##ediately "rin$ it to the attention of the court which #ay either< (Sec. &% Rule 1&+ a. deny ". $rant it outri$ht% or c. allow the parties the opportunity to "e heard.

Co#pliance with order.
4 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

he court is not wholly satisfied with all the assertions #ade in the #otion for "ill of particulars. Should it deny the #otion in its entirety. No. he court #ay $rant the #otion for "ill of particulars in whole or in part as not all the alle$ations -uestioned are necessarily so a#"i$uous as to re-uire clarification. ,oes the #otion for a "ill of particulars interrupts the ti#e to plead> Ges "ut only if the #otion is sufficient in for# and in su"stance. Bpon $rantin$ "y the court of a #otion of a "ill of particulars% how shall the plaintiff file the "ill of particulars> A "ill of particulars #ay "e filed "y the co#plainant either throu$h a separate pleadin$ or an a#ended pleadin$. 9 utist Notes

6hat are #atters that can "e order to "e particulari8ed in a #otion for a "ill of particulars> 6hat #ay "e ordered to "e particulari8ed on a #otion for "ill of particulars are the alle$ations of the ele#ents of a cause of action or defense. he alle$ation of evidentiary #atters cannot "e ordered on a #otion for "ill of particulars. (Repu"lic v. Sandi$an"ayan+ PR=:514< , files a #otion for "ill of particulars. C denied #otion. 6ithin the ti#e for filin$ pleadin$% , files a 4 , for i#proper venue. P opposes 4 , on the $round that o"!ection to i#proper venue was not raised in the first instance and so dee#ed waived. Rule on the 4 ,. ANS61R< PAs 4 , #ust "e denied. (Sy v. yson+. Nowhere in the rules does it state that the o"!ection to i#proper venue #ust "e raised at the first instance or first o"!ection. PR=:514< A stays in Sulo 7otel for a few days. A is not fro# ?C. 7e is fro# Suri$ao. 7e #a@es ?C the venue of his suit a$ainst : who is in Suri$ao. *s this proper> Can A "e served su##ons at Sulo hotel> ANS61R< No. A cannot #a@e ?C the venue of his suit "ecause it is not his residence as conte#plated in Rule 3. 7owever% A can "e served su##ons at Sulo 7otel accordin$ to Rule 13% if personal service is effected and not su"stituted service for Sulo 7otel would not "e the residence of A. (* a# not sure why Prof. :autista put this pro"le# in this topic.+

5 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

>II. Su''ons .Ru!e /30 A. Contents% 6hen *ssued and :y 6ho# *ssued Contents.
he su##ons shall "e directed to the defendant% si$ned "y the cler@ of court under seal% and contain< (a+ the n 'e o& t+e court and the n 'es o& t+e p rties to t+e ctionK ("+ a direction that the de&end nt ns"er "it+in t+e ti'e &i)ed %y t+ese Ru!esK (c+ a notice t+ t un!ess t+e de&end nt so ns"ers, p! inti&& "i!! t (e *ud$'ent %y de& u!t and #ay "e $ranted the relief applied for. (Sec. &% Rule 13+

@now that the defendant fre-uents a ni$ht clu" in ?ue8on Avenue. he sheriff $oes to the ni$ht clu" and waits for the defendant. 5i@e cloc@wor@% defendant enters the ni$ht clu" at 1& #idni$ht. he sheriff serves su##ons on hi#. *s this service of su##ons valid> Ges. Personal service of su##ons #ay "e effected anywhere. 6hat are the re-uisite conditions "efore su"stituted service can "e resorted to> (Sec. 7% Rule 13+ 1. *t is for !ustifia"le reasons. &. Personal service cannot "e #ade on the defendant within reasona"le ti#e. *s the #ode su"stituted service of su##ons the sa#e as su"stituted service of pleadin$s and papers> No. Su"stituted service of su##ons (Sec. 7% Rule 13+ is effected throu$h servin$ su##ons to a person who is of sufficient a$e and discretion residin$ in the residence of the defendant% at the residence of the defendant and to a person havin$ char$e of the defendantAs office or principal place of "usiness% at such office. Su"stituted service of pleadin$s and other papers (Sec. 8% Rule 10+% su"stituted service is done "y deliverin$ copy to the cler@ of court with proof of failure of "oth personal service and service "y #ail. Since su"stituted service is a dero$ation of the nor#al #ode which is personal service% the fact the $enuine efforts were #ade to serve such su##ons shall "e stated in the return of service. :. 4odes of Service 1. )oluntary Service (Sec. &/% Rule 13+ )oluntary appearance.
he defendantTs voluntary appearance in the action shall "e e-uivalent to service of su##ons. he inclusion in a #otion to dis#iss of other $rounds aside fro# lac@ of !urisdiction over the person of the defendant shall not "e dee#ed a voluntary appearance.

=ther Papers *ncluded in the Su##ons

1. A copy o& t+e co'p! int and &. order &or ppoint'ent o& $u rdi n d !ite'% if any% shall "e attached to the ori$inal and each copy of the su##ons. (Sec. &% Rule 13+

6ho *ssues Su##ons.

Bpon the !iling o! the complaint and the pa"ment o! the reFuisite legal !ees% the c!er( o& court shall forthwith issue the correspondin$ su##ons to the defendants. (Sec. 1% Rule 13+

:y 6ho# Shall Su##ons "e Served.

he su##ons #ay "e served a. "y the sheriff% ". "y the sheriffAs deputy c. other proper court officer d. for !ustifia"le reasons "y any suita"le person authori8ed "y the court issuin$ the su##ons. (Sec. 0% Rule 13+

*ssuance of alias su##ons.

1. *f a su##ons is returned without "ein$ served on any or all of the defendantsK or &. *f the su##ons has "een lost the cler@% on de#and of the plaintiff% #ay issue an !i s su''ons. *f a su##ons is returned without "ein$ served on any or all of the defendants% the server shall also serve a copy of the return on the plaintiffTs counsel% statin$ the reasons for the failure of service% within five (;+ days therefro#. (Sec. ;% Rule 13+

A#en

Notes .5 J n 630

&. )oluntary Su"#ission Rodri$ue8 v. Ali@pala his was the case where the parents were considered parties as they were co2#ovants in a #otion for !ud$#ent on a co#pro#ise a$ree#ent si$ned to$ether with the dau$hter and her hus"and. 0. Service in Person (Sec. .% Rule 13+ Service in person on defendant. 6henever practica"le% the su##ons shall "e served a. "y handin$ a copy thereof to the defendant in person% or%
of 229

6hen the su##ons is served% will the defendant @now the na#e of the !ud$e> No. =nly the "ranch of the trial will "e indicated. Can the plaintiff who is an interested party in the case "e allowed to serve su##ons on the defendant> Ges. he court #ay even authori8e the plaintiff to "e the one to effect service of su##ons on the defendant. he rules provide safe$uards that prevent hi# fro# defraudin$ the defendant. A sheriff @nows the residence of the defendant "ecause the defendant is his nei$h"our and he also

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

". if he refuses to receive and si$n for it% "y tenderin$ it to hi#. oyota Cu"ao v. CA Strict co#pliance of the Rules was applied herein% when the return of the su##ons did not specify why su"stituted service was resorted to. 3. Su"stituted Service (Sec. 7% Rule 13+ Su"stituted service. *f% for !ustifia"le causes% the defendant cannot "e served within a reasona"le ti#e as provided in the precedin$ section% service #ay "e effected (a+ "y leavin$ copies of the su##ons at the de&end ntBs residence with so#e person of suita"le a$e and discretion then residin$ therein% or ("+ "y leavin$ the copies at de&end ntBs o&&ice or re$u! r p! ce o& %usiness with so#e co#petent person in char$e thereof. (Sec. 7% Rule 13+ Jose v. :oyon *n this case% there was no $enuine effort to locate the defendants and serve the# with su##ons. ;. 19traterritorial Service (Sec. 1;% Rule 13+ 19traterritorial service.
6hen the defendant does not reside and is not found in the Philippines% and the action affects the personal status of the plaintiff or relates to% or the su"!ect of which is% property within the Philippines% in which the defendant has or clai#s a lien or interest% actual or contin$ent% or in which the relief de#anded consists% wholly or in part% in e9cludin$ the defendant fro# any interest therein% or the property of the defendant has "een attached within the Philippines% service #ay% "y leave of court% "e effected out of the Philippines a. "y personal service as under section .K or ". "y pu"lication in a newspaper of $eneral circulation in such places and for such ti#e as the court #ay order% in which case a copy of the su##ons and order of the court shall "e sent "y re$istered #ail to the last @nown address of the defendant% or c. in any other #anner the court #ay dee# sufficient. Any order $rantin$ such leave shall specify a reasona"le ti#e% which shall not "e less than si9ty (./+ days after notice% within which the defendant #ust answer.

circulation nor is it necessary they have the lar$est nu#"er of su"scri"ers. :onnevie v. CA ,ial Corp v. Soriano An action for in!unction is a personal action where e9traterritorial service of su##ons on a non2 resident defendant is not allowed. Courts are powerless to reach non2resident defendants of actions in persona# "ecause personal service of su##ons is only within the state. Contractual ri$hts are not property ri$hts. 4ontal"an v. 4a9i#o his was the case of Cr. 4a9i#oAs car accident where the su##ons was served on Cr. :autista in the church "ecause Cr. 4a9i#o was at the ti#e in 1urope. Su"stituted service of su##ons can "e e9ecuted a$ainst a Philippine resident te#porarily out of the country. *n the BS% do#icilliaries of the state thou$h te#porarily a"sent are always a#ena"le to suits in persona# filed within the state% as it is reco$ni8ed that states still e9ercise authority over its citi8ens. ,A4id$ley v. Cerandos he four instances were e9tra territorial service of su##ons is allowed. 1. Action affects personal property of the plaintiff. &. Action relates to property of the defendant which is in the Philippines 0. Relief consists of e9cludin$ defendant fro# any interest in the property located in the Philippines. 3. Non2resident defendantAs property in the Philippines has "een attached. Sahu$an v. CA he Rules did not prescri"e e9tra territorial service of su##ons "y pu"lication to "e effected on the place where the defendant resides. he e9tra territorial service of su##ons in this case was also defective "ecause no re$istered #ail was sent to the last @nown address of the defendant. REPU9LIC ACT NO. 3II2 AN AC = A41N, S1C *=N =N1 =C R1PB:5*C AC NB4:1R1, C=BR 7=BSAN, C*)1 7BN,R1, S*O G2 N*N1 1N * 51, IAN AC R1'B5A *N' 71 PB:5*CA *=N =C JB,*C*A5 N= *C1S% A,)1R *S141N S =C PB:5*C :*,,*N'S% N= *C1S =C ABC *=N SA51S AN, = 71R S*4*5AR N= *C1SI
S1C *=N 1. Section one of Repu"lic Act Nu#"ered Cour thousand five hundred si9ty2nine is here"y a#ended to read as follows< Sec. 1. All !udicial notices% advertise#ents for pu"lic "iddin$s% notices of auction sales and other si#ilar notices or announce#ents re-uired "y law to "e pu"lished in newspaper or periodical of $eneral circulation in

:asa v. 4ercado *n$ Jatipunan was held to "e a newspaper of $eneral circulation "ecause it possessed the four re-uisites% na#ely< a+ it was pu"lished for disse#ination of local news and $eneral infor#ation% "+ it had a "ona fide su"scription list of payin$ su"scri"ers% c+ it was pu"lished at re$ular intervals and d+ it was N= devoted to the interests of particular $roup of people. he law does not re-uire a fi9ed nu#"er of su"scri"ers to constitute a newspaper of $eneral

! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 particular provinces andVor cities s+ !! %e pu%!is+ed in ne"sp pers or pu%!ic tions pu%!is+ed, edited nd printed in t+e s 'e city ndMor pro#ince "+ere t+e re-uire'ent o& $ener ! circu! tion pp!ies < Provided% hat in the event there is no ne"sp per or periodic ! pu%!is+ed in t+e !oc !ity % the sa#e "e pu"lished in the ne"sp per or periodic ! pu%!is+ed nd edited in t+e ne rest to"n, city or pro#ince< Provided% further% hat no ne"sp per or periodic ! "+ic+ + s not %een re$u! r!y pu%!is+ed &or t !e st t"o ye rs %e&ore t+e d te o& pu%!ic tion o& t+e notices or nnounce'ents which #ay "e assi$ned to it shall "e -ualified to pu"lish the said notices.I S1C *=N &. his Act shall ta@e effect upon its approval. Approved< June 17% 19.7

JONATHAN PAMPOLINA Provided% hat the province or city where the pu"licationTs principal office is located shall "e considered the place where it is edited and pu"lished< Provided% further% hat in the event there is no newspaper or periodical pu"lished in the locality% the sa#e #ay "e pu"lished in the newspaper or periodical pu"lished% edited and circulated in the nearest city or province< Provided% finally% hat no newspaper or periodical which has not "een authori8ed "y law to pu"lish and which has not "een re$ularly pu"lished for at least one year "efore the date of pu"lication of the notices or announce#ents which #ay "e assi$ned to it shall "e -ualified to pu"lish the said notices. SECTION 1. he e9ecutive !ud$e of the court of first instance shall desi$nate a re$ular wor@in$ day and a definite ti#e each wee@ durin$ which the said !udicial notices or advertise#ents shall "e distri"uted personally "y hi# for pu"lication to -ualified newspapers or periodicals as defined in the precedin$ section% which distri"ution shall "e done "y raffle< Provided% hat should the circu#stances re-uire that another day "e set for the purpose% he shall notify in writin$ the editors and pu"lishers concerned at least three (0+ days in advance of the desi$nated date< Provided% further% hat the distri"ution of the said notices "y raffle shall "e dispensed with in case only one newspaper or periodical is in operation in a particular province or city. SECTION 2. No newspaper or periodical shall char$e for the pu"lication of the said notices and announce#ents less than ten pesos (P1/.//+ per colu#n inch% nor #ore than ei$hty percent (8/Y+ of their re$ular co##ercial display advertisin$ rates< Provided% hat pu"lications whose re$ular co##ercial advertisin$ rates are lower than ten pesos (P1/.//+ shall not char$e "elow ten pesos (P1/.//+ per colu#n inch for the pu"lication of the a"ove2#entioned notices and announce#ents< Provided% further% hat in the case of pu"lications that do not carry co##ercial display advertisin$% the rate for the pu"lication of le$al and !udicial notices shall "e fi9ed at ten pesos (P1/.//+ per colu#n inch< Provided% finally% hat newspapers or periodicals #ay only char$e #ore than ten pesos (P1/.//+ up to ei$hty percent (8/Y+ of their re$ular co##ercial display advertisin$ rates when there is proper and ade-uate proof that the rate clai#ed is the re$ular co##ercial display advertisin$ rate. SECTION 3. *n the pu"lication of the le$al and !udicial notices referred to a"ove% newspapers or periodicals shall use less "ut not #ore than ei$ht (8+ points for the te9t% less "ut not #ore than ten (1/+ points for the headin$% and #ore "ut not less than nine (9+ e#s colu#n widthK Provided% hat the printin$ of the te9t and headin$ shall "e solid% without slu$s or leads "etween lines and #ar$insK SECTION 4. No pu"lishers% editor% #edia personnel or any other person shall directly or indirectly offer or $ive #oney% co##ission or $ift of any @ind to e9ecutive !ud$es of the court of first instance or any court e#ployee in consideration of the award of le$al and !udicial notices and si#ilar announce#ents defined in section 1 hereof. Neither shall the latter directly or indirectly de#and of or receive fro# the for#er #oney% co##ission or $ifts of any @ind in consideration of any pu"lication herein referred to. SECTION 5. )iolation of any provision of this ,ecree shall "e punished "y a fine or not less than five thousand pesos (P;%///.//+ nor #ore than twenty thousand pesos (P&/%///.//+ and i#prison#ent for not less than (.+ #onths nor #ore than two (&+ years. he offendin$

PRESIDENTIAL DECREE NO. /6ED R1)*S*N' AN, C=NS=5*,A *N' A55 5A6S AN, ,1CR11S R1'B5A *N' PB:5*CA *=N =C JB,*C*A5 N= *C1S% A,)1R *S141N S C=R PB:5*C :*,,*N'S% N= *C1S =C ABC *=N SA51S AN, = 71R S*4*5AR N= *C1S

671R1AS% in order to "etter serve the pu"lic $ood% it is necessary to properly disse#inate infor#ation contained in !udicial notices% advertise#ents for pu"lic "iddin$s% notices of auction sales and other si#ilar notices re-uired "y Repu"lic Act No. 3;.9% as a#ended "y Repu"lic Act No. 3880 and Presidential ,ecree No. 79;K 671R1AS% Presidential ,ecree No. 19 has further a#ended the a"ove2#entioned law "y authori8in$ the pu"lication of the said notices in any e9istin$ newspaper or periodical in any part of the country durin$ the present national e#er$encyK 671R1AS% there is an ur$ent need to revise Presidential ,ecree No. 19 to preclude any confusion in the distri"ution of the notices referred to a"oveK 671R1AS% Presidential ,ecree No. 19 was intended #erely as an e#er$ency #easure to prevent the paraly8ation of the nor#al transactions of the $overn#ent and the private sector that #i$ht have resulted fro# the scarcity of newspapers in the provinces durin$ the early sta$es of #artial law% which possi"ility no lon$er e9ists todayK 671R1AS% to "etter i#ple#ent the philosophy "ehind the pu"lication of the a"ove2#entioned notices and announce#ents and prevent cross co##ercialis# and unfair co#petition a#on$ co##unity newspapers% which conditions prove to "e ini#ical to the develop#ent of a truly free and responsi"le press% it is necessary to revise and consolidate all laws and decree affectin$ the pu"lication of !udicial notices and other announce#ents herein referred toK N=6% 71R1C=R1% *% C1R,*NAN, 1. 4ARC=S% President of the Philippines% "y virtue of the powers vested in #e "y law% do here"y order and decree the followin$< SECTION /. All notices of auction sales in e9tra2!udicial foreclosure of real estate #ort$a$e under Act No. 010; as a#ended% !udicial notices such as notices of sale on e9ecution of real properties% notices in special proceedin$s% court orders and su##onses and all si#ilar announce#ents arisin$ fro# court liti$ation re-uired "y law to "e pu"lished in a newspaper or periodical of $eneral circulation in particular provinces andVor cities shall "e pu"lished in newspapers or pu"lications pu"lished% edited and circulated in the sa#e city andVor province where the re-uire#ent of $eneral circulation applies<

" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 e9ecutive !ud$e or court personnel shall "e perpetually dis-ualified fro# holdin$ any pu"lic office in the $overn#ent. SECTION E. Any provision of law% decree% e9ecutive order% rule or re$ulation contrary to or inconsistent with the provisions of this decree are here"y a#ended% #odified or repealed accordin$ly. SECTION I. his ,ecree shall ta@e effect i##ediately. ,one in the City of 4anila% this &8th day of January in the year of =ur 5ord% nineteen hundred and seventy2seven.

JONATHAN PAMPOLINA

he re-uire#ent that the pu"lication in a newspaper of $eneral circulation #ust "e done once a wee@ for three wee@s% need not "e within the full &1 days. (6ee@ 1< Pu"lish CridayK 6ee@ &< Pu"lish uesdayK 6ee@ 0< Pu"lish 4onday< =n uesday of 6ee@ 0% you can already call for a hearin$+ *n$ Jatipunan was a newspaper of $eneral circulation. A newspaper of $eneral circulation need not "e the one with the "i$$est newspaper su"scription. 6hat are the re-uisites for a newspaper to "e one of $eneral circulation> 1. Pu"lished for disse#ination of local news and $eneral infor#ation. &. 7as a "ona fide su"scription list of payin$ su"scri"ers. 0. Pu"lished at re$ular intervals. 3. Not devoted to interests of a particular $roup of people. ,ial Corp. v. Soriano ,ial Corp.% was a forei$n corporation% in which e9tra territorial service of su##ons (,75 Courier+ was effected to ac-uire !urisdiction over it in an action in persona#. 19tra territorial service is proper only if the defendant is a non2resident and cannot "e found in the Philippines and falls under the four instances enu#erated in ,e. 4id$ley. 4ontal"an v. 4a9i#o his was a car accident involvin$ Cr. 4a9i#o% who was out of the country when su##ons was served in his parish. 19traterritorial service of su##ons is allowed when the resident of the Philippines is te#porarily out of the country. he reason "ein$ is that a person who intends to return to his residence would not a"andon his property% when he is te#porarily a"road. *n su"stituted service% actual delivery to the defendant is necessary in order for the court to ac-uire !urisdiction over the person> No. Su"stituted service of su##ons is co#pleted upon delivery of su##ons to the person residin$ in defendantAs residence or the person in char$e in the defendantAs office or principal place of "usiness. *t is the responsi"ility of the person receivin$ the su##ons for the defendant% to infor# the defendant of the su##ons. Su"stituted service is dee#ed as sufficient constructive service of su##ons on the defendant. Saha$un v. CA Saha$un assi$ned to Cilinvest for valua"le consideration% credit fro# a fictitious sale of a car. A"el Saha$un was in the BS% so su##ons was throu$h pu"lication. Saha$un said pu"lication should "e in the BS and not in the Philippines.

.. Service "y Pu"lication Service upon defendant wherea"outs are un@nown. whose identity or

a. *n any action where the defendant is desi$nated as an un@nown owner% or the li@e% or ". whenever his wherea"outs are un@nown and cannot "e ascertained "y dili$ent in-uiry% service #ay% "y leave of court% "e effected upon hi# "y pu"lication in a newspaper of $eneral circulation and in such places and for such ti#e as the court #ay order. (Sec. 13% Rule 13+

19traterritorial service. (Sec. 1;% Rule 13+

6hen the defendant does not reside and is not found in the Philippines% and the action affects the personal status of the plaintiff or relates to% or the su"!ect of which is% property within the Philippines% in which the defendant has or clai#s a lien or interest% actual or contin$ent% or in which the relief de#anded consists% wholly or in part% in e9cludin$ the defendant fro# any interest therein% or the property of the defendant has "een attached within the Philippines% service #ay% "y leave of court% "e effected out of the Philippines "y personal service as under section .K or %y pu%!ic tion in ne"sp per o& $ener ! circu! tion in suc+ p! ces nd &or suc+ ti'e s t+e court ' y order, in "+ic+ c se copy o& t+e su''ons nd order o& t+e court s+ !! %e sent %y re$istered ' i! to t+e ! st (no"n ddress o& t+e de&end nt % or in any other #anner the court #ay dee# sufficient.

Residents te#porarily out of the Philippines. (Sec. 1.% Rule 13+
6hen any action is co##enced a$ainst a de&end nt "+o ordin ri!y resides "it+in t+e P+i!ippines% "ut who is te'por ri!y out o& it % service #ay% "y leave of court% "e also effected out of the Philippines% as under the precedin$ section.

oyota Cu"ao v. CA 'uevarra had repaired his oyota car "ut paid with a chec@ that did not have sufficient funds. A !ud$e in R C2?C issued a su##ons to "e served "y the sheriff of Cala#"a% where the defendant was residin$. Su"stituted service was not valid "ecause the return of service did not state affir#atively that earnest efforts were #ade to effect service. :asa v. 4ercado his was case where su##ons "y pu"lication was -uestioned.

9 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

he rules do not state where the pu"lication in a newspaper should "e. he server should e9ert his very "est to $ive due notice. *t is also i#possi"le to pu"lici8e in the BS without entailin$ hu$e costs and also "ecause Saha$unAs wherea"outs in which particular BS state was un@nown. C. 4odes of Service upon Certain ,efendants 1. Bpon ,o#estic Private Judicial 1ntity Service upon do#estic private !uridical entity.
6hen the defendant is a corporation% partnership or association or$ani8ed under the laws of the Philippines with a !uridical personality% service #ay "e #ade on the president, ' n $in$ p rtner, $ener ! ' n $er, corpor te secret ry, tre surer, or inA+ouse counse! . (Sec. 11% Rule 13+

fro# "ein$ sued in Philippine courts for acts done a$ainst a person in the Philippines. Case was rendered #oot "ecause Cacilities 4ana$e#ent paid dela =sa. 0. Bpon Resident e#porarily A"road. Residents te#porarily out of the Philippines.
6hen any action is co##enced a$ainst a defendant who ordinarily resides within the Philippines% "ut who is te#porarily out of it% service #ay% "y leave of court% "e also effected out of the Philippines% as under the precedin$ section. (Sec. 1.% Rule 13+

Paluwa$an n$ :ayan v. Jin$ Paluwa$an n$ :ayan filed an action for recovery of #oney #ar@et place#ent throu$h pro#issory notes a$ainst 4ercantile Cinancin$ Corp. (4CC+ and its directors and officers. Su##ons was served only on the assistant #ana$er of 4CC at their office "uildin$ in 5 A. Su##ons was not proper with re$ard the officers and directors. Since the directors and officers were "ein$ held lia"le in their personal capacity% su##ons #ust "e served on the# personally. &. Bpon Corei$n Private Juridical 1ntity Service upon forei$n private !uridical entity.
6hen the defendant is a forei$n private !uridical entity which has transacted "usiness in the Philippines% service #ay "e #ade a. on its resident $ent desi$nated in accordance with law for that purpose% or% ". if there "e no such a$ent% on the $o#ern'ent o&&ici ! desi$n ted %y ! " to t+ t e&&ect% or c. on any of the &orei$n pri# te *uridic ! entityNs o&&icers or $ents "it+in t+e P+i!ippines . (Sec. 1&% Rule 13+

4ontal"an v. 4a9i#o Cr. 4a9i#o was in 1urope when su##ons was served on hi# at his Church% which was received "y another priest. Su"stituted service of su##ons on the priest was proper and allowed the court to ac-uire !urisdiction over Cr. 4a9i#o. 3. Bpon ,efendant 6hose *dentity or 6herea"outs Bn@nown. Service upon defendant wherea"outs are un@nown. whose identity or

*n any action where the de&end nt is desi$n ted s n un(no"n o"ner, or t+e !i(e % or whenever +is "+ere %outs re un(no"n nd c nnot %e scert ined %y di!i$ent in-uiry % service #ay% "y leave of court% "e effected upon hi# "y pu"lication in a newspaper of $eneral circulation and in such places and for such ti#e as the court #ay order. (Sec. 13% Rule 13+

5eave of court.
Any application to the court under this Rule for leave to effect service in any #anner for which leave of court is necessary shall a. "e #ade "y #otion in writin$% ". supported "y affidavit of the plaintiff or so#e person on his "ehalf% c. settin$ forth the $rounds for the application. (Sec. 17% Rule 13+

Answer of a defendant forei$n private !uridical entity.
6here the defendant is a forei$n private !uridical entity and service of su##ons is #ade on the $overn#ent official desi$nated "y law to receive the sa#e% the answer shall "e filed "it+in t+irty .260 d ys &ter receipt o& su''ons %y suc+ entity . (Sec. &% Rule 11+

;. Bpon =thers. Service upon entity without !uridical personality.
6hen persons associated in an entity without !uridical personality are sued under the na#e "y which they are $enerally or co##only @nown% service #ay "e effected upon all the defendants "y servin$ a. upon any one of the#% or ". upon the person in char$e of the office or place of "usiness #aintained in such na#e. :ut such service shall not "ind individually any person whose connection with the entity has% upon due notice% "een severed "efore the action was "rou$ht. (Sec. 8% Rule 13+

.Sec. /3, Ru!e /3, /D53 Ru!es o& Court0 Cacilities 4ana$e#ent v. ,ela =sa ,ela =sa was a Cilipino e#ployee of Cacilities 4ana$e#ent% which was a forei$n corporation that was do#iciled in the 6a@e *slands. A forei$n corporation not en$a$ed in "usiness in the Philippines cannot clai# e9e#ption

Service upon prisoners.
6hen the defendant is a prisoner confined in a !ail or institution% service shall "e effected upon hi# "y the

!0 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 o&&icer + #in$ t+e ' n $e'ent o& suc+ institution who is dee#ed deputiKed s s+eri&& for said purpose. (Sec. 9% Rule 13+ * i! or speci !

JONATHAN PAMPOLINA

Service upon #inors and inco#petents.

6hen the defendant is a #inor% insane otherwise an inco#petent% service shall "e #ade 1. upon hi# personally and &. on his le$al $uardian if he has one% or if none% upon $uardian ad lite# whose appoint#ent shall "e applied "y the plaintiff. 0. *n the case of a #inor% service #ay also "e #ade on father or #other. (Sec. 1/% Rule 13+

or his for his

a#ended co#plaint does N= introduce new causes of action. :ut% if defendant has not filed a responsive pleadin$ and the a#ended co#plaint introduces new causes of action% a new su##ons #ust "e issued a$ainst the defendant. :ut if defendant has already appeared in response to the first su##ons "y filin$ a 4 , or an answer% a new su##ons need not "e served upon the a#ended co#plaint "ecause defendant was already in court when the co#plaint was a#ended. A police ser$eant served su##ons on the de"tor "ecause the plaintiff said de"tor was the police ser$eantAs ne9t door nei$h"or and friend. *s service of su##ons valid> No. he enu#eration of persons who #ay serve su##ons is 1OC5BS*)1. Su##ons on a defendant livin$ in 7on$ Jon$ was served "y #ail only "ecause% plaintiff had no funds to pay for pu"lication "y newspaper. rial court held service of su##ons was valid. 6as the trial court correct> No. Su##ons cannot "e served "y #ail. Resort to re$istered #ail% when service of su##ons is "y pu"lication% is only co#ple#entary to service of su##ons "y pu"lication% "ut it does not #ean that service "y re$istered #ail alone would suffice. Plaintiff filed an action for e!ect#ent. 7e served su##ons "y pu"lication on P,*% Philippine Star and 4anila :ulletin for three successive wee@s and had su##ons sent throu$h re$istered #ail to the defendant who was in :a$uio. rial court said su##ons "y pu"lication was proper. 6as trial court correct> No. An e!ect#ent case% "ein$ in persona# action% personal service of su##ons on the defendant within the state of the foru# is essential to ac-uire !urisdiction over his personK hence su##ons "y pu"lication in this case is null and void. *n service of su##ons upon prisoners% what is the si$nificance of the deputi8ation as special sheriff of the head of the penal institution> hat officer "ein$ deputi8ed as a special sheriff shall "e char$ed with the duty of co#plyin$ with the re-uire#ent for the service of the return under Sec. 3 and ; of Rule 13. A:C Corporation was sued for non pay#ent of de"t. Sheriff served su##ons on the secretary of the President of the Corporation% since the President was on vacation leave. rial court held that service was i#proper. 6as trial court correct> Ges% service upon other persons #entioned in Sec. 10% Rule 13 on service of su##ons on do#estic private !uridical entities is invalid and does not "ind the corporation. he secretary of the President is different fro# the corporate secretary.

Service upon pu"lic corporations.

a. 6hen the defendant is the Repu"lic of the Philippines% service #ay "e effected on the Solicitor 'eneralK ". in case of a province% city or #unicipality% or li@e pu"lic corporations% service #ay "e effected on its e)ecuti#e +e d% or on suc+ ot+er o&&icer or o&&icers s t+e ! " or t+e court ' y direct. (Sec. 10% Rule 13+

,. Return or Proof of Service Return.
6hen the service has "een co#pleted% the server 1. shall% within five (;+ days therefro#% serve a copy of the return% personally or "y re$istered #ail% to the plaintiffTs counsel% and &. shall return the su##ons to the cler@ who issued it% acco#panied "y proof of service. (Sec. 3% Rule 13+

Proo& o& ser#ice.
he proof of service of a su##ons 1. shall "e #ade in writin$ "y the server and shall set forth the #anner% place% and date of serviceK &. shall specify any papers which have "een served with the process and the na#e of the person who received the sa#eK and 0. shall "e sworn to when #ade "y a person other than a sheriff or his deputy. (Sec. 18% Rule 13+

Proo& o& ser#ice %y pu%!ic tion.
*f the service has "een #ade "y pu"lication% service #ay "e proved 1. "y the affidavit of the printer% his fore#an or principal cler@% or of the editor% "usiness or advertisin$ #ana$er% to which affidavit a copy of the pu"lication shall "e attached% and &. "y an affidavit showin$ the deposit of a copy of the su##ons and order for pu"lication in the post office% posta$e prepaid% directed to the defendant "y re$istered #ail to his last @nown address. (Sec. 19% Rule 13+

Re$ ! do Notes 'eneral Rule< Jurisdiction cannot "e ac-uired over the person of the defendant 6* 7=B service of su##ons. Plaintiff filed an a#ended co#plaint. Should a new su##ons "e issued a$ainst the defendant who was already served su##ons in the ori$inal co#plaint> ,efendant need not "e issued a new su##ons for the a#ended co#plaint% if the

!1 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

6hat is the ulti#ate test on the validity and sufficiency of service of su##ons on a do#estic private !uridical entity> 6hether the su##ons and the attach#ents there to were ulti#ately received "y the corporation under such circu#stances that no undue pre!udice was sustained "y it fro# the procedural lapse and that it was afforded full opportunity to present its responsive pleadin$s. 6hat is a newspaper of $eneral circulation> 1. one which is pu"lished for the disse#ination of local news and $eneral infor#ationK &. it has a "ona fide su"scription list of su"scri"ers 0. is pu"lished at re$ular intervals (cVf RA 3880% newspaper #ust have "een re$ularly pu"lished for at least two years "efore the date of the pu"lication in -uestion+ 3. it is not pu"lished for or devoted to the interest of a particular $roup of persons. Any for# of appearance in the court "y the defendant or his a$ent or counsel is e-uivalent to service of su##ons. rue or Calse. Calse. 6hen appearance "y the defendant or his a$ent or counsel is precisely to o"!ect to the !urisdiction of the court over the person of the defendant. (* thin@ this is what they call as special appearance to contest the !urisdiction of the court over the person.+ 9 utist Notes

4r. 4A,B'AS% Cler@ R C of ?ue8on City% :ranch 1&0 Can su##ons "e served "y fa9 or e#ail% as under other #eans of service> Accordin$ to Prof. :autista% su##ons can "e served "y fa9 or e#ail as it co#es under the purview of the 1lectronic Co##erce Act. :ut * a# not sure under which provision. Can a police#an serve su##ons> Ges. *f and only if% the court $rants hi# special authority to serve su##ons. Sheriff was ordered to serve su##ons on defendant. 6hen sheriff reached the house of defendant% he waited for ten #inutes without any success in servin$ the su##ons on the defendant. Since he had other su##ons to serve% sheriff resorted to su"stituted service "y $ivin$ the su##ons to a person who purported to "e the defendantAs #aid. 6as there valid su"stituted service of su##ons> No. Su"stituted service of su##ons #ay "e resorted to only if personal service cannot "e #ade within a reasona"le ti#e. he sheriff should have e9erted #ore reasona"le efforts to serve su##ons. (5aus v. CA+ *n the sheriffAs return of service% it was stated that su"stituted service was done on the nephew of the defendant who was at the house of the defendant when the sheriff ca#e. ,efendant files a 4 , for lac@ of !urisdiction over the person due to i#proper service of su##ons and was a"le to prove that his nephew was #erely 13% althou$h he loo@ed #uch older. Plaintiff said that sheriffAs return of service is conclusive upon this court. Rule on the 4 ,. 4 , $ranted. he recital of facts in the sheriffAs return of service is not conclusive. his is especially so when the recital of facts has a le$al co#ponent% where% for instance% the sheriff concludes that su"stituted service was #ade on a person of suita"le a$e and discretion. (4echanical Appliance Co v% Castle#an% ;3 5. 1d. &7&+ 6hat is special appearance> Special appearance is a procedural device reco$ni8ed in our !urisdiction where the defendant #ay challen$e the !urisdiction of the court "ased on the invalidity of the service of su##ons upon hi# and he is not there"y considered to have su"#itted hi#self to the !urisdiction of the court. (Bnited Coconut PlanterAs :an@ v% =n$pin+ ,efendant is served with su##ons in his 4a@ati office throu$h his wife% who happened to "e visitin$ his office. 7e appears "efore the court to file a #otion for additional ti#e to answer "ecause he read the su##ons when he discovered it in his des@ a wee@ after. Plaintiff o"!ects and says% his filin$ of the #otion should "e dee#ed as voluntary su"#ission to the !urisdiction of the court. ,efendant ar$ues that

6hat is su##ons> Su##ons is the process "y which a party is "rou$ht to court as a defendant. *t is a writ or process issued and served upon the defendant in a civil action for the purpose of securin$ his appearance therein. Service of su##ons ena"les the court to ac-uire !urisdiction over the person of the defendant. 6hat is the effect of !ud$#ent where there is no service of su##ons on the defendant> *n the a"sence of service of su##ons and unless the defendant waives such defect "y his voluntary appearance in court% any *ud$'ent in re$ rd to suc+ de&end nt is nu!! nd #oid. SA4P51 SB44=NS o 4s. 4A7*NA7=N% ,efendant. Gou are here"y su##oned and re-uired to file and serve your answer to the co#plaint% copy of which is here"y served upon you% within fifteen (1;+ days after service hereof e9clusive of the day of service. *f you fail to do so% !ud$#ent "y default will "e ta@en a$ainst you for the relief de#anded in the co#plaint.

!2 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

he will file a special appearance to -uestion the service of su##ons. Rule on the ar$u#ents. here is already voluntary appearance. ,efendant waives his o"!ection to any defect in the service of su##ons where he #oves for additional ti#e to answer. (=rosa v. CA+ Can the parties stipulate in advance upon who# su##ons shall "e served% if and when an action "etween the# arises> Ges. *n so#e contracts% li@e international contracts% the parties #ay a$ree as to who# su##ons should "e served. 6hat are the !ustifia"le reasons for su"stituted service> 1. staff is not availa"le (understaffed+ &. distance 0. identification of person to "e sued is i#possi"le (*n the case of the atalon estate% the service was su"stituted "ecause the defendant lived in a s-uatterAs area where the houses did not have nu#"ers. '1N1RA5 RB51< Return of service of su##ons i##ediately shifts the "urden of evidence (that su##ons was served+ fro# plaintiff to defendant% since there is a presu#ption of re$ularity. a"le of 4odes of Service. P51A,*N' Su##ons 4=,1 =C S1R)*C1 1. Person ! (either handin$ or tenderin$+ &. Su%stituted a. Residence< with resident of sufficient a$e and discretion ". =fficeVRe$ular Place of :usiness< with so#e co#petent person in char$e thereof. 0. pu%!ic tion 3. ny ot+er 'e ns 1. Person ! a. delivery to partyV counsel ". leavin$ it in office with cler@ or person in char$e c. leavin$ it in residence of party or counsel fro# 8A42.P4 &. Su%stituted Ser#ice 2 with cler@ of court after personal service fails. 0. C i! a. Re$istered #ail< date of #ailin$ is date of filin$ ". =rdinary 4ail< *f no re$istry service is availa"le 1. Person ! &. Re$istered C i! 0. Pu%!ic tion ("ut only if defendant was su##oned "y pu"lication and defendant failed to appear in the action.

PR=:514< A lawyer was a defendant in an action for collection. 6hen sheriff went to his house to serve su##ons% he only person he found was defendantAs dau$hter who was visitin$ hi#. Can su##ons "e served on the dau$hter. ANS61R< No. Rule re-uires that the person to who# su##ons #ay "e served #ust "e R1S*,*N' in the defendantAs house and not #erely a visitor. PR=:514< 6hat is one supposed to do if service of su##ons is not valid> ANS61R< 4a@e a special appearance for the li#ited and e9clusive purpose of -uestionin$ the validity of service of su##ons% to -uash it and #ove to dis#iss on the $round of lac@ of !urisdiction over the person of the defendant. *f you add other $rounds (i.e. prescription% failure to state a cause of action+% you are not dee#ed to have waived the $round of invalid service of su##ons. :ecause of the o#ni"us #otion rule (Sec. 1% Rule 9+ where defenses or o"!ections not pleaded in 4 , or in the answer are dee#ed waived. PR=:514< A civil action was filed a$ainst Ro"ert Strun@ who is still at present in the BS. Court issued a su##ons for hi# to appear. Can the sheriff "e authori8ed to serve su##ons in the BS> ANS61R< No. Processes of the courts are effective only within the Philippines !ust as our !ud$#ents cannot "e enforced a"road. (Sec. 0 and 3% Rule 10;+ PR=:514< *n one Philippine case% a lawyer was sued. 7e was declared in default for failin$ to file an answer. 7e sou$ht to set aside the order of default. he service was #ade on the first floor of his house% which was a sari2sari store% to his son who was #annin$ the store. 7e clai#s that su##ons was served on his &12year2old son% who accordin$ to hi# was #entally retarded and not of sufficient discretion and even called a psychiatrist to testify to that fact. 6as service valid> ANS61R< SC said G1S and even scolded the lawyer. SC said that son was of sufficient a$e and discretion "ecause althou$h #entally retarded% the lawyer allowed hi# to tend to the store. *f he was s#art enou$h to tend the store% he is s#art enou$h to understand the si$nificance of the su##ons. *f co#plaint is a#ended% is there a need for a new issuance of su##ons> ,1P1N,S< a. N=. *f the defendant has already "een served with su##ons on the ori$inal co#plaint and the a#ended co#plaint does not introduce new causes of actions% no further su##ons is re-uired. (=n$ Pen$ v% Custodio+ ". G1S. *f the defendant was declared in default on the ori$inal co#plaint and the plaintiff su"se-uently filed an a#ended co#plaint% new su##ons #ust "e served on the defendant on the a#ended co#plaint

Pleadin$s and =ther Papers

Cinal Jud$#ents% =rders and ,ecisions

!3 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

as the ori$inal co#plaint was dee#ed withdrawn upon such a#end#ent. (Jnoll and Co v. ,o#in$o+

!4 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

>III. Cotions in <ener ! .Ru!e /40 6hat is a #otion>
A #otion is an application for relief other than "y a pleadin$. (Sec. 1% Rule 1;+

A#en

Notes .E J n 630

Are #otion pleadin$s> echnically% N=. :ecause the Rules say it is other than a pleadin$. 6ho sets the hearin$ on the #otion> he applicant sets the hearin$ on the #otion% su"!ect to the followin$ conditions< a. date and ti#e of hearin$ shall not "e later than 1/ days after the filin$ of the #otion. ". service of notice of hearin$ on the adverse party shall "e done at least 0 days "efore the date of hearin$. Re$ ! do Notes 6hat are the e9ception to the three day notice rule in Section 3% Rule 1;> 1. e9 parte #otions &. ur$ent #otions 0. #otions a$reed upon "y the parties to "e heard on shorter notice. 3. #otions for su##ary !ud$#ent which #ust "e served at least 1/ days "efore its hearin$ (Sec. 0% Rule 0;+ 6hat are the e9ceptions to the $eneral rule that all written #otions shall "e set for hearin$> he e9ceptions to the $eneral rule are non2 liti$ata"le or non2liti$ated #otion% or #otions which #ay "e acted upon "y the court without pre!udicin$ the ri$hts of the adverse party. A #otion which does not contain a notice of ti#e and place of hearin$ is a useless piece of paper and of no le$al effect. 6hat is the purpose of attachin$ the pleadin$ sou$ht to "e ad#itted in a #otion for leave to file such pleadin$> *t is to provide the court with the "asis for deter#inin$ the #erits of the #otion for leave of court to file the desired pleadin$ or #otion. *t is unfair to the court and to the adverse party to see@ a rulin$ and the ad#ission of a pleadin$ si$ht unseen% since the court will have to fatho# the contents of the pro!ected pleadin$ and the opposin$ party cannot for#ulate his opposition to the ad#ission thereof. 9 utist Notes.

4otions #ust "e in writin$.

All #otions shall "e in writin$ e9cept those #ade in open court or in the course of a hearin$ or trial. (Sec. &% Rule 1;+

Contents.
A #otion shall state< (Sec. 0% Rule 1;+ a. the relief sou$ht to "e o"tained and ". the $rounds upon which it is "ased% and c. if re-uired "y these Rules or necessary to prove facts alle$ed therein% shall "e acco#panied "y supportin$ affidavits and other papers.

7earin$ of #otion.
19cept for #otions which the court #ay act upon without pre!udicin$ the ri$hts of the adverse party% every written #otion shall "e set for hearin$ "y the applicant. 1very written #otion re-uired to "e heard and the notice of the hearin$ thereof shall "e served in such a #anner as to ensure its receipt "y the other party t !e st t+ree .20 d ys %e&ore t+e d te o& +e rin$ % unless the court for $ood cause sets the hearin$ on shorter notice. (Sec. 3% Rule 1;+

Notice of hearin$.

he notice of hearin$ 1. shall "e addressed to all parties concerned% and &. shall specify the ti#e and date of the hearin$ which #ust not "e later than ten (1/+ days after the filin$ of the #otion. (Sec. ;% Rule 1;+

Proof of service necessary.
No written #otion set for hearin$ shall "e acted upon "y the court without proof of service thereof. (Sec. .% Rule 1;+

4otion day.

19cept for #otions re-uirin$ i##ediate action% all #otions shall "e scheduled for hearin$ on Criday afternoons% or if Criday is a non2wor@in$ day% in the afternoon of the ne9t wor@in$ day. (Sec. 7% Rule 1;+

=#ni"us #otion.

Su"!ect to the provisions of section 1 of Rule 9% a #otion attac@in$ a pleadin$% order% !ud$#ent% or proceedin$ shall include all o"!ections then availa"le% and all o"!ections not so included shall "e dee#ed waived. (Sec. 8% Rule 1;+

4otion for leave.
A #otion for leave to file a pleadin$ or #otion shall "e acco#panied "y the pleadin$ or #otion sou$ht to "e ad#itted. (Sec. 9% Rule 1;+

Cor#.

he Rules applica"le to pleadin$s shall apply to written #otions so far as concerns caption% desi$nation% si$nature% and other #atters of for#. (Sec. 1/% Rule 1;+

PR=:514< Suppose a #otion is filed on July 1. 6hen is the earliest ti#e that it can "e set for hearin$> ANS61R< After 0 days% or July 3. he receipt for the for# of the notice of hearin$ advises the adverse party of the date% ti#e and place of hearin$. *t is #andatory and strictly enforced.

!5 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

Cailure to co#ply with this re-uire#ent will result in a fatal defect. his #otion will "e tanta#ount to no #otion at all and in the word of the SC% it can "e dee#ed Han outlaw that can "e slain on si$ht.N he "urden is on the party or the #ovant to set the date% ti#e and place of hearin$. his cannot "e #ade dependent on the cler@ of court.

! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

>IV. Cotion to Dis'iss .Ru!e /50 6hat are the $rounds for a 4otion to ,is#iss (4 ,+>
6ithin the ti#e for "ut "efore filin$ the answer to the co#plaint or pleadin$ assertin$ a clai#% a #otion to dis#iss #ay "e #ade on any of the followin$ $rounds< 4N14=N*C< JJ)CP D PC6BC (Sec. 1% Rule 1.+ (a+ hat the court has no *urisdiction o#er t+e person of the defendin$ partyK ("+ hat the court has no *urisdiction o#er t+e su%*ect ' tter o& t+e c! i'K (c+ hat #enue is i#properly laidK (d+ hat the plaintiff has no le$al c p city to sueK (e+ hat there is not+er ction pendin$ "etween the sa#e parties for the sa#e causeK (f+ hat the cause of action is "arred "y a prior *ud$'ent or %y t+e st tute o& !i'it tions K ($+ hat the pleadin$ assertin$ the clai# states no c use o& ctionK (h+ hat the clai# or de#and set forth in the plaintiffTs pleadin$ has "een p id, " i#ed, % ndoned, or ot+er"ise e)tin$uis+edK (i+ hat the clai# on which the action is founded is unen&orce %!e under the provisions of the statute of fraudsK and (!+ hat a condition precedent for filin$ the clai# has not "een co#plied with.

Pleadin$ $rounds as affir#ative defenses.

*f no #otion to dis#iss has "een filed% any of the $rounds for dis#issal provided for in this Rule #ay "e pleaded as an affir#ative defense in the answer and% in the discretion of the court% a preli#inary hearin$ #ay "e had thereon as if a #otion to dis#iss had "een filed. he dis#issal of the co#plaint under this section shall "e without pre!udice to the prosecution in the sa#e or separate action of a counterclai# pleaded in the answer. (Sec. 1% Rule 1.+

A#en

Notes .E J n 640

he plaintiff% a 032year old lawyer% files an action for recovery of possession of property. ,efendant clai#s plaintiff has no interest or clai# in the property and is thus not the real party in interest. 7e files a 4 , "ased on lac@ of capacity to sue. *s the "asis for the 4 , correct> No. he correct $round is the co#plaint states no cause of action "ecause the plaintiff is ar$ued to "e not the real party in interest. Co#pare litis pendentia with res !udicata. 5* *S P1N,1N *A 1. identity of parties &. identity of causes of action 0. a decision in one will "ar the other action "y res !udicata R1SJB,*CA A 1. the decision is final &. the court decidin$ the action is a co#petent court which has !urisdiction over the case. 0. identity of parties 3. as@s for the sa#e reliefs

7earin$ of #otion.
At the hearin$ of the #otion% the parties shall su"#it their ar$u#ents on the -uestions of law and their evidence on the -uestions of fact involved e9cept those not availa"le at that ti#e. Should the case $o to trial% t+e e#idence presented durin$ t+e +e rin$ s+ !! uto' tic !!y %e p rt o& t+e e#idence o& t+e p rty presentin$ t+e s 'e. (Sec. &% Rule 1.+

Resolution of #otion.
After the hearin$% the court #ay a. dis#iss the action or clai#% ". deny the #otion% or c. order the a#end#ent of the pleadin$. he court shall not defer the resolution of the #otion for the reason that the $round relied upon is not indu"ita"le. *n every case% the resolution shall state clearly and distinctly the reasons therefor. (Sec. 0% Rule 1.+

he final !ud$#ent re-uisite in res !udicata need not "e one which was on the #erits. 1OA4P51< A 4 , if $ranted% is a final !ud$#ent which is not "ased on the #erits of the case. :ut the plaintiff can still appeal. he $rounds in a #otion to dis#iss can "e alle$ed in the defendantAs answer% if no #otion to dis#iss is filed. BS v. Rui8 his is an action for specific perfor#ance a$ainst the BS% that involved a contract "iddin$ for repairs. 6hen a state or international or$ani8ation clai#s i##unity for suit% the $round for dis#issin$ the action is lac@ of !urisdiction over the person and N= lac@ of !urisdiction over the su"!ect #atter. National Bnion v. Stolt2Nielsen 6hen a condition precedent is not co#plied with (did not $o throu$h ar"itration process+% the $round for dis#issal is not failure to state a cause of action "ut failure to co#ply with a condition precedent.

*f the #otion is denied% the #ovant shall file his answer within the "alance of the period prescri"ed "y Rule 11 to which he was entitled at the ti#e of servin$ his #otion% "ut not less than five (;+ days in any event% co#puted fro# his receipt of the notice of the denial. *f the pleadin$ is ordered to "e a#ended% he shall file his answer within the period prescri"ed "y Rule 11 counted fro# service of the a#ended pleadin$% unless the court provides a lon$er period. (Sec. 3% Rule 1.+

i#e to plead.

1ffect of dis#issal.
Su"!ect to the ri$ht of appeal% an order $rantin$ a #otion to dis#iss "ased on para$raphs (f+% (h+ and (i+ of section 1 hereof shall "ar the refilin$ of the sa#e action or clai#. (Sec. ;% Rule 1.+

!! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

,iu v. CA his was the case where the :aran$$ay Chair#an did not constitute the Pan$@at n$ a$apa#ayapa to settle the issue% "ut instead wrote a letter su"#ittin$ the issue for court intervention. A #otion to dis#iss was failed sayin$ that the court did not have !urisdiction "ecause the process of the Jatrun$an$ Pa#"aran$$ay was not resorted to fully. he $round for dis#issin$ the action is not the lac@ of !urisdiction of the court over the su"!ect #atter% "ut failure to co#ply with the condition precedent. :ut even then% fro# the facts of the case there was no $enuine resolve "y the parties to settle a#ica"ly the issue. So it is "est that they $o directly to the court. :esides% the participation of the :aran$$ay Chair#an was su"stantial co#pliance with the law. 4arcopper v. 'arcia A re-uest for ad#ission was filed "y 'arcia fro# 4arcopper% who was clai#in$ that the land held in possession "y 'arcia was actually theirs. S 4aAa# "elieves that the SC in this case was usin$ the wron$ technical words% in disposin$ of the case. A #otion to dis#iss on the $round of & i!ure to st te c use o& ction will lie only at the "e$innin$ of the case% where the trial court will li#it itself to the four corners of the co#plaint and test whether the alle$ations if hypothetically ad#itted will !ustify the awardin$ of the relief. *n a dis#issal of an action for ! c( o& c use o& ction% the #otion co#es after the plaintiff has su"#itted its evidence and the defendant "elieves that the evidence presented did not prove the cause of action stated in the co#plaint. 7ere% the trial court is allowed to loo@ at the whole records of the case and is not li#ited to the co#plaint. Susti$uer v. a#ayo his was the case of an award of land "y the #ayor to Aposa$a% "ut was su"se-uently sold to a#ayo. Aposa$a and Susti$uer% who was the loser in the award of land "y the #ayor% filed suit sayin$ they have a preferential ri$ht to the land. :ut Aposa$a withdrew fro# the suit later on. a#ayo now clai#s that Susti$uer was not the real party in interest. A$ain the court was confused in delineatin$ the ter#s lac@ of C=A and failure to state C=A. he #otion to dis#iss the co#plaint was only filed after Aposa$aAs withdrawal% which was done in the #iddle of the trial. :a$uirro v. :arrios :a$uirro "uilt a house in violation of an oral a$ree#ent with the owner of the land. An action was filed "y the owner to either pay the rentals or vacate the land. CC* has no !urisdiction "ecause of the !urisdictional a#ount of the rent clai#ed for and "ecause the action was forci"le entry of :a$uirro in

occupyin$ land in e9cess of what was orally a$reed upon. :arnes v. Reyes his was an appeal of a decision of the lower court% wherein only one of the si"lin$s si$ned the certificate for non2foru# shoppin$. SC said that the sister had a special power of attorney% wherein she was allowed to si$n for her si"lin$s who were also co2owners with her. Juasin$ v. 7ardware. his was the case where the sole proprietorship filed suit. Juasin$ 7ardware is not a le$al person. he $round for dis#issal should "e lac@ of le$al personality% "ecause it did not e9ist in the eyes of the law. *t is not lac@ of capacity to sue% "ecause personality refers to the fitness to "e the su"!ect of le$al relations. 5ee :un in$ v. CA his case involved a sale of land to an alien% to which the vendor wanted the land returned. *n a 19;. decision% SC declared that vendor did not have a !uridical re#edy under the law% "ecause he was also in pari delicto. 6hen the su"se-uent rulin$ of P:C v. 5i (Rulin$< 19ception to the pari delicto rule D when the pari delicto rule would render in!ustice+ ca#e a"out% vendor a$ain returned to the trial court to have the land ad!udicated "ac@ to hi#. here was a "ar "y prior !ud$#ent of the SC. Present parties are still the sa#e. Co#pare :ar "y prior !ud$#ent v. Conclusiveness of !ud$#ent :ar "y Prior Jud$#ent (Sec. 37 ("+% Rule 09+ Co#plete res !udicata (identity of parties% su"!ect #atter% and issues+ All #atters directly ad!ud$ed or as to any other #atter that could have "een raised in relation thereto Conclusiveness of Jud$#ent (Sec. 37 (c+% Rule 09+ here is N= identity of issues% "ut there is identity of parties and it involves the sa#e su"!ect #atter. hat which is only "een dee#ed to have "een ad!ud$ed in a for#er !ud$#ent or final order which appears upon its face to have "een ad!ud$ed% or which was actually or necessarily included therein or necessary thereto.

Jind of Res Judicata

Scope of 4atters which are rendered conclusive

!" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

S Res !udicata is #erely a re2liti$ation of the sa#e issues with the sa#e parties. Re$ ! do Notes= A#en Notes .I J n 640 ,ifferentiate a #otion to dis#iss under Rule 1. as a$ainst a de#urrer to evidence under Rule 00. 4otion to ,is#iss 'rounded on preli#inary o"!ections. 4ay "e filed "y any defendin$ party a$ainst who# a clai# is asserted in the action. Should "e filed within the ti#e for "ut prior to the filin$ of the answer to the defendin$ party to the pleadin$ assertin$ the clai# a$ainst hi#. ,e#urrer to 1vidence :ased on insufficiency of evidence. 4ay "e filed only "y the defendant a$ainst the co#plaint of the plaintiff. 4ay "e filed for the dis#issal of the case only after the plaintiff has co#pleted the presentation of his evidence.

As per all #otions% proof of service is necessary "efore the court shall act on the #otion. (Sec. .% Rule 1;+ A hearin$ on the #otion to dis#iss was ordered "y the court. he defendant present evidence in the hearin$ on the #otion. he 4 , is denied. he defendant files an answer and durin$ the trial ar$ues "ased on evidence presented durin$ the preli#inary hearin$ on the 4 ,. he plaintiff o"!ects sayin$ that the court has ruled and denied the 4 ,% so the defendant cannot raise the $rounds or evidence presented in the hearin$ on the 4 ,. Rule on the o"!ection. ="!ection should "e overruled "ecause the Rules auto#atically #a@e the evidence presented durin$ the hearin$ on the 4 , part of the evidence of the defendant who filed it% even if the 4 , is denied. (Sec. &% Rule 1.+ S his principle% accordin$ to #aAa# is a $reat preservative of your evidence. *n rulin$ on a #otion to dis#iss% what is the advanta$e of a court orderin$ #erely an a#end#ent to the co#plaint> *f the court orders an a#end#ent of the co#plaint after hearin$ on the 4 ,% the plaintiff #ay !ust file an a#ended co#plaint without payin$ doc@et fees. *f the court $rants the 4 , and dis#isses the case% then counsel for the plaintiff has to file doc@et fees anew. Se#pio v. CA his was the case involvin$ three action the su"!ect #atter of which was the land owned "y Se#pio that was sold in a e9tra !udicial foreclosure "y ,:P. ,:P su"se-uently sold the land to uason. SC held that uason was aware of the proceedin$s instituted "y Se#pio a$ainst ,:P% "ut still he did not participate in the case "ut filed a separate case% when he learned the Se#pio was $iven possession of the land. SC said uasonAs ri$ht over the property was contin$ent on the ri$hts of ,:P over the e9tra2!udicial foreclosure. S he SC separated su"stantial identity of parties and co##unity of interest. he SC descri"ed co##unity of interest "etween the parties as the situation wherein uason was a successor in interest to ,:P. =n the other hand% su"stantial identity of interest pertained to the idea that it does not re-uire a"solute identity of the parties. o AvenaAs #ind% the two concepts are actually the sa#e "anana% "ecause there is su"stantial identity of parties "ecause of co##unity of interests. :asis 6ho file> #ay

Period filin$.

for

,oes a 4 , ad#it the whole truth of the #atter alle$ed in the co#plaint> No. A 4 , only hypothetically ad#its the truth of the facts alle$ed in the co#plaint. Such% ad#ission however% is li#ited only to all #aterial and relevant facts which are well pleaded in the co#plaint. Can a co#pliant "e dis#issed "y the court% on a $round not alle$ed in the 4 ,> No. An action cannot "e dis#issed on a $round not alle$ed in the 4 ,% even if said $round% e.$. prescription% is provided for in Rule 1.% 1OC1P in those cases where the court #ay dis#iss a case #otu propio. (4ali$ v.:ush+ *f defendant files a 4 , challen$in$ the !urisdiction of the court over his person and also on the $round of prescription% does he waive his ri$ht of special voluntary appearance and does the court now e9ercise !urisdiction over his person> No. 1ven if he challen$es the !urisdiction of the court over his person% as "y reason of a"sence or defective service of su##ons% and he also invo@es other $rounds for the dis#issal of the action under Rule 1.% he is not dee#ed to "e in estoppel or to have waived his o"!ection to !urisdiction over his person. (5a Naval ,ru$ v. CA+ A party files an action for specific perfor#ance. he court dis#isses the action "ecause the o"li$ation has

!9 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

"een paid. he plaintiff files an appeal -uestionin$ the !urisdiction of the R C. Rule on the appeal. Appeal is denied. 6here a party invo@es the !urisdiction of a court to o"tain affir#ative relief and fails% he cannot thereafter repudiate such !urisdiction. 6hile the issue of !urisdiction #ay "e raised at any ti#e% he is estopped as it is tanta#ount to speculatin$ on the fortunes of liti$ation. (Crisosto#o v. CA+ Can there "e an i#plied waiver of i#proper venue> Ges% where the plaintiffs filed the action in a court of i#proper venue and thereafter su"#itted to its !urisdiction% the issue of venue was there"y waived and they are in estoppel to repudiate or -uestion the proceedin$s in said court. ()da. ,e Suan v. Cusi+ ="!ections to venue is also i#pliedly waived where the party enters into trial% cross2e9a#ines the witnesses of the adverse party and adduces evidence. (Paper *ndustries v. Sa#son+ A plaintiff files an action for -uietin$ of title a$ainst defendant. ,efendant says that plaintiff is not the real party in interest "ecause he is not the real owner of the property. Counsel files a 4 , "ased on lac@ of capacity to sue. *s the "asis valid> No. 6here the plaintiff is not the real party in interest the $round for the 4 , is failure to state a cause of action. (Casi#iro v. Ra#ire8+ 5ac@ of le$al capacity to sue #eans that the plaintiff is either not in the e9ercise of his civil ri$hts or does not have the character or representation that he clai#s. (5unsod v. =rte$a+ 6hat are the re-uisites of litis pendentia> 1. the parties to the action are the sa#e. &. that there is su"stantial identity in the cause of action and reliefs sou$ht 0. that the result of the first action is deter#inative of the second in any event. ,oes the pendency of an ad#inistrative action constitute litis pendentia on the civil action> No. he pendency of an ad#inistrative case "etween the parties does not $enerally constitute litis pendentia in another civil or cri#inal case "etween the#. 6hen the $round for dis#issal is that the co#plaint states no cause of action% such fact can "e deter#ined only fro# the facts alle$ed in the co#plaint. his i#plies that the issues #ust "e passed upon on the "asis of the alle$ation assu#in$ the# to "e true and the court cannot in-uire into the truth of the alle$ations and declare the# to "e false% otherwise% it would "e a procedural error and a denial of due process to the plaintiff. he trial court can consider all the pleadin$s filed includin$ anne9es% #otions and the evidence on record. 6hat is the test of failure to state a cause of action>

he test is whether% assu#in$ the alle$ations of fact in the co#plaint% a valid !ud$#ent could "e rendered in accordance with the prayer in the co#plaint. Action is for cancellation of the defendantAs title% "ut the alle$ations therein are inade-uate. Can the plaintiff now say that he has #ade i#prove#ents on the land and should "e rei#"ursed thereof> 6here the facts alle$ed to #a@e out the principal cause of action and relief are insufficient% the case should "e dis#issed and plaintiff cannot rely on ancillary #atters in the co#plaint to #a@e out a cause of action. A suit is filed a$ainst de"tor for failure to pay his o"li$ation. *n the co#plaint% it does not alle$e the consideration for the o"li$ation. he case $oes to trial and defendant does not o"!ect to the lac@ of consideration stated in the co#plaint. Plaintiff now #oves that the co#plaint "e a#ended to introduce the consideration of the o"li$ation. Should this "e allowed or should the co#plaint "e dis#issed. Allow the a#end#ent of the co#plaint to confor# to the evidence presented. *f the defendant per#its evidence to "e introduced% without o"!ection% which supplies the necessary alle$ation in such defective co#plaint% this evidence cures the defects of such co#plaint which #ay no lon$er "e dis#issed on that account and the court shall award such relief as is consistent with the case #ade out "y the pleadin$s and the evidence. (Pascua v. CA and also see Sec. ;% Rule 1/+ 6hat $round can "e cited to dis#iss an action "ased on the $round that the alle$ations of the co#plaint are va$ue or indefinite> None. An action cannot "e dis#issed on the $round that the co#plaint is va$ue or indefinite. he re#edy of the defendant is to #ove for a "ill of particulars or avail of the proper #ode of discovery. A rulin$ on the #otion to dis#iss is unappeala"le. rue or false> *t depends. *f the 4 , is denied% the order of denial is interlocutory and not appeala"le% unless the !ud$eAs denial is done with $rave a"use of discretion or in e9cess of !urisdiction. *f the 4 , is $ranted% the order $rantin$ the 4 , is final and appeala"le. 6hen a court $rants the 4 , and dis#isses the co#plaint% can the plaintiff refile a$ain correctin$ the #ista@es of the prior co#plaint> Ges. 19cept if the order $rantin$ the 4 , is "ased on the followin$ $rounds< 1. res !udicata &. prescription 0. e9tin$uish#ents 3. unenforcea"ility under the Statute of Crauds

"0 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

hat a cause of action has prescri"ed% the $round for dis#issal is that the cause of action is "arred "y the statute of li#itations. hat the ownership or other real ri$hts clai#ed have prescri"ed or in cases of e9tinctive prescription% the $round for dis#issal of the action is that the clai# or de#and has "een e9tin$uished. 9 utist Notes=

PR=:514< 7us"and sues wife and her para#our for recovery of #oney. 4 , was filed "y the defendants on the $round that earnest efforts to co#pro#ise were not e9erted. Rule on the #otion. ANS61R< 4 , is denied. 6here third parties are involved% you donAt have to e9ert earnest efforts to co#pro#ise. (4a$a"aleta v. :ono+ PR=:514< Cirst action was for the annul#ent of a contract of #ort$a$e. A second action was filed for the foreclosure of a #ort$a$e. A 4 , was filed a$ainst the second action. Rule on the 4 ,. ANS61R< 4 , is denied. Althou$h there is identity of parties and there #ay "e identity of ri$hts asserted yet the !ud$#ent which #ay "e rendered in the first action does not necessarily "ar the second action. (6hat if the first action was dis#issed and the court rules that the contract of #ort$a$e was valid.+ *dentity "etween the two actions #ust "e such that ny *ud$'ent rendered on t+e ot+er ction will a#ount to an ad!udication of the action under consideration. *t is not punctuated upon such contin$ency. *t is applica"le "etween with the sa#e particularity when the !ud$#ent to "e rendered in the first action will "e such that% re$ rd!ess o& t+e p rtyNs success% it still results in res !udicata with the second action. PR=:514< Petition in the :ureau of 5ands for issuance of free patent over a parcel of land. Another action was filed to recover said land durin$ pendency of the proceedin$s in the :ureau of 5ands. A 4 , in the civil action was filed on the "asis of litis pendentia. Rule on the 4 ,. ANS61R< 4 , is denied. here is no litis pendentia "ecause the first action is ad#inistrative% while the second action is instituted in court. ,ifferentiate "etween :ar "y Prior Jud$#ent and 1stoppel "y Jud$#ent. :ar "y Prior 1stoppel "y Jud$#ent Jud$#ent *ssues Any issue that was =nly the issues "arred. raised or which actually raised could have "een and necessarily raised "ut was not ad!ud$ed "y the raised is "arred action are fro# "ein$ raised "arred. =ther in another action in issues not the future. raised are not "arred "ecause the causes of action of the cases are different. *s 4 , Ges% it is a $round Not a $round valid> for a 4 , "ecause for a 4 , it is co#plete res "ecause the !udicata. cause of action is different.

6here the defendant #oved to dis#iss the co#plaint on the $round of lac@ of S4 !urisdiction and litis pendentia "ut the court instead dis#issed the co#plaint on $round that the case has "eco#e #oot and acade#ic. *s the dis#issal "y the court valid> Ges% the dis#issal was held to have "een effectively #ade #otu propio and without an opportunity afforded the plaintiff to "e heard despite the presence of factual issues that need to "e proved. (:or!e v. CC*24isa#is =ccidental+ A lessee sued his lessor to fi9 the period for their contract of lease. 5essor% in turn sues the lessee for e!ect#ent. 5essee in the second case% #oves for dis#issal sayin$ that the first action is litis pendentia on the second and that the lessee was the one who filed first. Rule on the #otion. 4otion to dis#iss is denied. *t was held that what should "e dis#issed is the first case of fi9in$ the period of the lease "ecause e!ect#ent is the #ore appropriate action for deter#ination of the lesseeAs ri$ht to occupy the pre#ises and fi9in$ of the period for the lease is discretionary with the court. here is no re-uire#ent in litis pendentia that the other pendin$ action should have "een filed first. ( eodoro v.4irasol+ PR=:514< ,efendant files a 4 , on the $round of lac@ of capacity to sue. he court denies 4 ,. Can the defendant re2plead lac@ of capacity to sue as an affir#ative defense. ANS61R< No% the $eneral rule is that if a 4 , has "een filed% the $rounds alle$ed in the 4 , cannot "e repleaded% unless it is for lac@ of S4 !urisdiction% litis pendentia% res !udicata or prescription of the action. PR=:514< 7us"and sues his wife for a su# of #oney. 6ife files an answer% "ut shortly "efore pre2 trial she files a 4 , on the $round of lac@ of earnest efforts to resolve the #atter. Rule on the #otion. ANS61R< 4 , $ranted. he lac@ of earnest efforts to resolve the #atter "etween hus"and and wife is a condition precedent to the cause of action for the recovery of #oney such that the failure of the hus"and to cite the earnest effort had "een underta@en would a#ount to a failure to state a cause of action. Since the failure to state a cause of action is an e9ception to Rule 9% Section &% the alle$ations after filin$ of the answer is not too late.

"1 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

6hat are the ele#ents of :ar "y Prior Jud$#ent or Res Judicata Proper> 6hat is the scope of preclusion> 1. Jurisdiction of the court &. Cinal !ud$#ent. 0. Jud$#ent on the 4erits 3. *dentity of parties and cause of action 6hat is precluded is the entire action% which #eans all #atters directly ad!ud$ed in the first case and any #atter that could have "een raised in relation thereto. 6hat are the ele#ents of 1stoppel "y Jud$e#ent or Conclusiveness of Jud$#ent> 6hat is the scope of preclusion> 1. Jurisdiction of the Court. &. Cinal Jud$#ent 0. !ud$#ent on the #erits 3. *dentity of parties "ut not the causes of action. =nly specific issues are prevented fro# "ein$ re2liti$ated% which #eans #atters ad!ud$ed in a final !ud$#ent or final order which appears upon its face to have "een ad!ud$ed and #atters actually and necessarily included therein or necessary thereto. PR=:514< 1st action D A v. : to foreclose real estate #ort$a$e. &nd action D : v. A to -uiet title. A files a 4 ,. Rule on the #otion. ANS61R< 4 , $ranted. *t is a "ar "y prior !ud$#ent. PR=:514< 1st action D A v. : to recover land. & nd action D : v. A to -uiet title. A files a 4 ,. Rule on the #otion. ANS61R< 4 , is $ranted. here is conclusiveness of !ud$#ent "ecause the issue of the validity of the #ort$a$e cannot "e re2liti$ated. A#en Notes ./I J n 640

was with respect da#a$es to Shell. HSince you "u#ped #e% which therefore led #e to "u#p Shell% a$anas% you should pay Shell what Shell is as@in$ fro# #e.N Re$ala v. Sandi$an"ayan his was the case filed a$ainst 1duardo Co!uan$co% which i#pleaded the ACCRA lawyers in their capacity as no#inee stoc@holders. PC'' filed a #otion to ad#it third a#ended co#plaint. Accordin$ to #aAa#% SC went ahead of itself and !u#ped the $un when it dis#issed the co#plaint a$ainst the ACCRA lawyers. *n evidence% the attorney2client privile$ed is only invo@ed when the attorney is as@ed to ta@e the witness stand and testify a$ainst his client. :ut here the SC already ruled on the applica"ility of the attorney2client privile$e even "efore they were as@ed to ta@e the stand. Procedurally% the ACCRA lawyers were not yet i#pleaded in the Co!uan$co case in the Sandi$an"ayan% which was why PC'' was tryin$ to a#end their co#plaint. Get% the SC dis#issed the case a$ainst the ACCRA lawyers without the# "ein$ i#pleaded and without resolvin$ the #otion to ad#it the a#ended co#plaint. 5icarios v. Sandi$an"ayan his was the case of the ill2$otten wealth of 5ucio an% who in conspiracy with the then 'overnor of the C:% 5icarios% was a"le to purchase the assets of ': C for P.; 4 only. here was no failure to state a cause of action% since there was sufficient facts i#puted a$ainst 5icarios in the co#plaint to i#plead hi# in the conspiracy. ancuntian v. 'e#pesaw he issue in this case was whether ancuntian was filin$ a case for reversion or -uietin$ of title. he SC said this was for -uietin$ of title "ecause ancuntian had an ori$inal certificate of title to the land in -uestionK which renders the $rant "y the :ureau of 5ands of the free patent null and void "ecause the real property was no lon$er pu"lic land. Co#pared to Jaton% ancuntian had re$istered his title to the land via an ori$inal certificate of title. Jaton% on the other hand% was ne$li$ent in not pushin$ for the application for the re$istration of the So#"rero *sland. A$ilient v. *nte$rated Silicon he first case was "ased on a "reach of contract% wherein *nte$rated Silicon sued A$ilient for not e9tendin$ the period of the contract. he second case was for replevin% in which A$ilient sued *nte$rated Silicon for recovery of e-uip#ent owned "y A$ilient. here was no litis pendentia "ecause there was no identity of causes of action and of the issues.

&3. Corp v. ,away his is the Role9 trade#ar@ infrin$e#ent case. A #otion to dis#iss with #otion for preli#inary hearin$ is not an a"solute ri$ht of the plaintiff. A #otion for preli#inary hearin$ is availa"le only if there is no need for evidence aliunde and the court is as@ed only to loo@ at the co#plaint. a$anas v. 1#usalan his was the case of the four way vehicular accident. C*RS CAS1< Juntos (owner of the *su8u van+ v. a$anas (Petron truc@ owner+. a$anas won the suit% Juntos was !ud$ed as lia"le. S1C=N, CAS1< Shell v. Juntos and a$anas. Juntos filed a cross clai# a$ainst a$anas. *n the first case% the cause of action was in relation to da#a$es to the JuntosA car. H a$anas% you "u#ped #y "ehind.N *n the second case% JuntosAs second cause of action in the cross clai#

"2 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

>V. Dis'iss ! o& Action %y C! i' nt .Ru!e /E0 ,is#issal upon notice "y plaintiff.
A co#plaint #ay "e dis#issed "y the plaintiff "y filin$ a notice of dis#issal at any ti#e %e&ore ser#ice o& t+e ns"er or o& 'otion &or su'' ry *ud$'ent . Bpon such notice "ein$ filed% the court shall issue an order confir#in$ the dis#issal. (Sec. 1% Rule 17+

"ecause "efore the a#end#ent there #ust "e su"stitution of the deceased party. Re$ ! do Notes= 6hen is the notice "y the plaintiff of the dis#issal of the co#plaint with pre!udice> 1. 6here the notice of dis#issal so provides. &. 6here the plaintiff has previously dis#issed the sa#e case in a court of co#petent !urisdiction 0. 6here the notice of dis#issal does not provide that it is with pre!udice% "ut it is presu#ed on the fact of pay#ent "y the defendant of the clai# involved. 6hat causes the loss of the plaintiffAs ri$ht to effect dis#issal of action "y #ere notice> *t is the ser#ice on t+e p! inti&& of the defendantAs answer or of a #otion of su##ary !ud$#ent and N= the filin$ of the defendantAs answer. (cVf filin$ v. servin$ of pleadin$s and papers.+ ('o v. Cru8+ 6here the first co#plaint for foreclosure of a chattel #ort$a$e for non2pay#ent of certain instal#ents due thereunder was dis#issed with pre!udice% at the instance of the plaintiff% another co#plaint later filed "y hi# for non2pay#ent of instal#ents su"se-uent to those involved in the first case should not "e dis#issed on the $round of res !udicata since the second case involved different causes of action. (Cilinvest Credit Corp. v. Salas+ *f the defendant wishes to pursue his counterclai# in an action dis#issed upon #otion of the plaintiff% are the alternative re#edies of either continuin$ the counterclai# in the sa#e action or filin$ it separately dependent on whether the counterclai# is co#pulsory> No. he alternative re#edies are availa"le to the defendant who filed the counterclai# re$ardless of whether his counterclai# is co#pulsory or per#issive. *s the rule on dis#issal of the action "y the plaintiff% under Section 1 and & of Rule 17% the sa#e as the rules on droppin$ or addin$ parties under Section 11% Rule 0> No. ,roppin$ or addin$ parties refers to the ' inten nce o& t+e c se a$ainst all parties% e9cept that one or #ore defendants #ay "e e9cluded. he action still prevails or continues% only that so#e of the defendants or plaintiffs are e9cludedK unli@e in a dis#issal of the action under Rule 17% where the action is clearly ter#inated with re$ard A55 the parties. Plaintiff is a"sent durin$ the presentation of evidence of the defendant. ,efendant #oves to dis#iss action a$ainst plaintiff on the "asis that plaintiff did not appear durin$ the trial. Rule on the #otion.

wo2,is#issal Rule.
Bnless otherwise stated in the notice% the dis#issal is without pre!udice% e9cept that a notice operates as an ad!udication upon the #erits when filed "y a plaintiff who has once dis#issed in a co#petent court an action "ased on or includin$ the sa#e clai#. (Sec. 1% Rule 17+

,is#issal upon #otion of plaintiff.

19cept as provided in the precedin$ section% a co#plaint shall not "e dis#issed at the plaintiffTs instance save upon approval of the court and upon such ter#s and conditions as the court dee#s proper. *f a counterclai# has "een pleaded "y a defendant prior to the service upon hi# of the plaintiffTs #otion for dis#issal% the dis#issal shall "e li#ited to the co#plaint. he dis#issal shall "e without pre!udice to the ri$ht of the defendant to prosecute his counterclai# in a separate action unless within fifteen (1;+ days fro# notice of the #otion he #anifests his preference to have his counterclai# resolved in the sa#e action. Bnless otherwise specified in the order% a dis#issal under this para$raph shall "e without pre!udice. A class suit shall not "e dis#issed or co#pro#ised without the approval of the court. (Sec. &% Rule 17+

,is#issal due to fault of plaintiff.

*f% for no !ustifia"le cause% the plaintiff a. & i!s to ppe r on the date of the presentation of his evidence in chief on the co#plaint% or ". & i!s to prosecute +is ction for an unreasona"le len$th of ti#e% or c. & i!s to co'p!y "it+ t+ese Ru!es or ny order o& t+e court% the co#plaint #ay "e dis#issed upon #otion of the defendant or upon the courtTs own #otion% without pre!udice to the ri$ht of the defendant to prosecute his counterclai# in the sa#e or in a separate action. his dis#issal shall have the effect of an ad!udication upon the #erits% unless otherwise declared "y the court. (Sec. 0% Rule 17+

,is#issal of counterclai#% cross2clai#% or third2party co#plaint.
he provisions of this Rule shall apply to the dis#issal of any counterclai#% cross2clai#% or third2party co#plaint. A voluntary dis#issal "y the clai#ant "y notice as in section 1 of this Rule% shall "e #ade "efore a responsive pleadin$ or a #otion for su##ary !ud$#ent is served or% if there is none% "efore the introduction of evidence at the trial or hearin$. (Sec. 3% Rule 17+

'o!o v. 'oyala Cailure of the plaintiff to co#ply with the orders of the court is a $round for a #otu propio dis#issal of the co#plaint. his rule did not apply in this case "ecause the order of the court to a#end the pleadin$s to su"stitute the heirs was void

"3 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

4otion is denied. Since the plaintiffAs presence is now re-uired only durin$ the presentation of his evidence in chief% his a"sence durin$ the presentation of evidence of the defendant or other parties% nor even at the re"uttal or su"se-uent sta$es of the trial% is not a $round for dis#issal. (Section 0% Rule 17+ 7ow can the plaintiffAs action "e dis#issed on the "asis of failure to prosecute> Bn!ustifia"le inaction on the part of plaintiff to have the case set for trial is $round for dis#issal for failure to prosecute. he unreasona"le len$th of ti#e in failure to prosecute is addressed to the sound discretion of the trial court. Counsel for plaintiff presented evidence of his clientAs clai# for da#a$es a$ainst defendant. After his presentation of evidence% counsel was sent to =lan$apo "y his law fir# for so#e Hrecreational dutiesN and was una"le to appear at plaintiffAs su"se-uent hearin$ where defendant was to present his evidence in defense. ,efendant% after he presents his case% files a #otion for dis#issal of the action "ased on failure to prosecute. Rule on the #otion. 4otion is denied. 6here counsel for the plaintiff had adduced evidence for his client% his failure to appear at a su"se-uent hearin$ cannot "e considered as failure to prosecute "ut only a waiver of the ri$ht to cross2e9a#ine the witnesses for the defendant and to o"!ect to the ad#issi"ility of evidence for the latter. (Jalover v. Gtoria$a+ 9 utist Notes

purposes% how would the defendant @now if the plaintiff has filed the case for the second ti#e> 7e pro"a"ly would not. herefore% for practical purposes% this is illusory and the i#plication is that the plaintiff can re2file even after the second ti#e. PR=:514< Plaintiff files a co#plaint. After si9 #onths% there has "een no service of su##ons. he case is dis#issed for failure to prosecute. wo #onths later. he plaintiff re2files the sa#e case. he defendant files for a #otion to dis#iss under Section 0% Rule 17. Rule on the #otion to dis#iss. ANS61R< 4otion to dis#iss is denied. he first court did not ac-uire !urisdiction over the defendant. No su##ons had "een issued yet. here is no res !udicata either. 6here an action has "een dis#issed #otu propio "y the court for failure to prosecute in that su##ons has not yet "een served on defendant despite the lapse of considera"le len$th of ti#e% the dis#issal has no res !udicata effect "ecause the court "y that ti#e had not yet ac-uired !urisdiction over the defendant. 6ithout such !urisdiction% the court had no co#petence to dispose of the cause on the #erits and to render a "indin$ !ud$#ent. (4eliton v. CA+ A#en Notes ./I J n 640

6hen is a dis#issal under Rule 17% an ad!udication upon the #erits of the case> 1. Bnder Sec. 0 of Rule 17% where the plaintiff is at fault. &. Bnder Sec. 1 of Rule 17% under the two dis#issal rule. A#en Notes .16 J n 640

*n dis#issal of the action "y #ere notice of the plaintiff% a copy #ust "e furnished to the defendant. rue or Calse. Calse. Since it is dis#issal "y #ere notice and not "y #otion% there is no need to furnish a copy to the other party. PR=:514< he plaintiff files today% "ut withdraw the ne9t day. 6hat does the plaintiff do if he wants to re2file> ANS61R< he plaintiff can re2file the action% "ut he has to pay the doc@et fees a$ain. ,is#issal under Section 1 and & of Rule 17 are without pre!udice 1OC1P < 1. where the notice of dis#issal so provides. &. where the plaintiff has previously dis#issed the sa#e case in a court of co#petent !urisdiction (two dis#issal rule+ 0. when stated to "e with pre!udice in the order of the court. S Prof. :autista notes that if the plaintiff withdraws the case for the second ti#e% then it is e-uivalent to an ad!udication of the case. 7owever% for practical

Can a defendant file a notice of dis#issal of the action> No. Notice of dis#issal under Sec. 1 or Rule 17 is availa"le only to the clai#in$ party. 6hen a defendant wants to dis#iss an action filed a$ainst hi#% it #ust "e throu$h a #otion in which the adverse party is afforded a chance to oppose. 4aAa# says% @awawa na#an yun na$ de#anda if upon #ere notice of the defendant% his clai# is dis#issed. As a $eneral rule% is a dis#issal under Rule 17 with pre!udice> No. ,is#issal of an action under Sections 1 and & of Rule 17 is $enerally without pre!udice. 1OC1P *=NS< 1. Bnder the two dis#issal rule of Sec. 1 of Rule 17. &. Bnless otherwise stated in the court order of dis#issal.

"4 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

0. 6hen dis#issal is pre#ised on the fact of pay#ent% dis#issal shall "e with pre!udice. (Serrano v. Ca"rera+ 6hen should notice of dis#issal "e filed "y the plaintiff> At any ti#e "efore the service of the answer or of a #otion for su##ary !ud$#ent. 4aAa# is pu88led why a #otion for su##ary !ud$#ent is included% since a #otion for su##ary !ud$#ent is proper after the pleadin$ in answer (Rule 0;+. HBntil now% * still cannot fi$ure out the pu88le.N 'o!o v. 'oyala ,is#issal of the action for failure to co#ply with a court order will not "e applica"le if the court order% as in this case% was null and void. he court ordered the party to a#end the co#plaint% to introduce the su"stituted party of the deceased% :1C=R1 there was any su"stitution at all. *n this case% the SC ruled that an action cannot "e dis#issed "y the plaintiff% if the defendant has filed a co#pulsory counterclai#. ,id the 1997 Rules of Court confor# to the rulin$ of 'o!o v. 'oyala> No. :ecause under the new rules% the dis#issal of the action in Rule 17 is li#ited only to the action and the counterclai#% whether co#pulsory or not% can prosper in the sa#e proceedin$ or in a separate action% upon the choice of the defendant. ,o you need to file an answer in a co#pulsory counterclai#> No. :ecause the ori$inal co#plaint controverts the issues in the co#pulsory counterclai#.

"5 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

>VI. Jud$e'ent on t+e P!e din$s .Ru!e 230 Jud$#ent on the pleadin$s.
A. 6here an answer fails to tender an issue% or :. otherwise ad#its the #aterial alle$ations of the adverse partyTs pleadin$% the court #ay% on #otion of that party% direct !ud$#ent on such pleadin$. 7owever% in actions for declaration of nullity or annul#ent of #arria$e or for le$al separation% the #aterial facts alle$ed in the co#plaint shall always "e proved. (Sec. 1% Rule 03+

Rules on 4otion Applica"le.

Su"!ect only to the 02day notice rule and where all the #aterial aver#ents of the co#plaint are ad#itted% such #otion #ay "e #ade e9 parte.

Re-uires the 1/2 day notice.

Repu"lic v. Co!uan$co (Sandi$an"ayan decision+

Re$ ! do Notes= A !ud$#ent on the pleadin$s presupposes that there is N= controverted issue whatsoever "etween the parties% hence the plaintiff is also assu#ed to have ad#itted all the relevant alle$ations of fact of the defendant in his answer. he !ud$#ent is "ased e9clusively upon the alle$ations appearin$ in the pleadin$s of the parties and the anne9es thereto% if any without consideration of any evidence aliunde. he plaintiff% "y #ovin$ for !ud$#ent on the pleadin$s is not dee#ed to have ad#itted irrelevant alle$ations in the defendantAs answer% neither is the defendant dee#ed to have ad#itted alle$ations of da#a$es in the co#plaint. Co#pare Jud$#ent on the Pleadin$s under Rule 03 and Su##ary Jud$#ent under Rule 0;. Jud$#ent on the Su##ary Pleadin$s Jud$#ent 6hen proper. 6hen it appears Proper even if that there is N= there is an issue '1NB*N *SSB1 as to da#a$es "etween the recovera"le. parties. *ntroduction :ased e9clusively :ased not only of 1vidence. upon the on the pleadin$s pleadin$s "ut also the 6* 7=B affidavits% introduction of depositions and evidence ad#issions of the parties showin$ that% e9cept as to a#ount of da#a$es% there is no $enuine issue. *n what @inds Availa"le in ANG Proper only in of actions AC *=N% e9cept actions to availa"le for annul#ent of recover a de"t% #arria$e or le$al or for a separation. li-uidated su# of #oney or for declaratory relief.

Co#pare Jud$#ent on the Pleadin$s and Su##ary Jud$#ent with Jud$#ent "y ,efault. *n !ud$#ent "y default% 1. 'enuine issues of fact andVor law are nor#ally involved. &. 1vidence #ust "e introduced on the #aterial alle$ations% al"eit e9 parte% e9cept in cases covered "y the rule on su##ary procedure 0. All cases #ay "e su"!ect to !ud$#ents "y default% e9cept those for annul#ent or declaration of nullity of #arria$e or le$al separation. 3. 4otions for default !ud$#ents #ay "e filed e9 parte% e9cept under the rule on su##ary procedure wherein upon failure of defendant to answer% the court% #otu propio or on plaintiffAs #otion% shall render the correspondin$ !ud$#ent. 9 utist Notes=

6hat is the reason for the rule allowin$ !ud$#ent on the pleadin$s> o e9pedite liti$ation. 6here on the pleadin$s there is nothin$ presented "ut an issue of law% no evidentiary hearin$ is re-uired and !ud$#ent #ay thence "e si#ply "e rendered on the pleadin$s. his #ay well happen where an answer fails to tender an issue% or otherwise ad#its the #aterial alle$ations of the adverse partyAs pleadin$s. 6hen is !ud$#ent on the pleadin$s allowed> Jud$#ent on the pleadin$s is allowed when there is N= *SSB1 =C CAC . *f there is only an issue of law% !ud$#ent on the pleadin$s is proper "ecause you do not try issues of law and you do not receive evidence on issues of law. At #ost you ar$ue your positions on issues of law. 6hat are the $rounds for !ud$#ent on pleadin$s> 1. 6hen an answer fails to tender an issue &. 6hen an answer ad#its #aterial alle$ations 6ho #ay as@ for a !ud$#ent on the pleadin$s> he plaintiff. Can the defendant as@ for !ud$#ent on the pleadin$s> Ges% under Rule 18% durin$ pre2trial it is allowed. the

" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

At what sta$e of the proceedin$ can a #otion for !ud$#ent on the pleadin$s "e invo@ed> After filin$ of the answer and "efore the trial. *s partial !ud$#ent allowed on the #otion for !ud$#ent on the pleadin$s allowed> Ges% under Rule 0. Sections 3 and ;. A court #ay render !ud$#ent on the pleadin$s on so#e of the defendant or "ased on so#e of the causes of action and allow that trial "e shall proceed with the other defendant or other causes of action. A#en Notes .16 J n 640

A #otion for !ud$#ent on the pleadin$s can "e filed with any pleadin$ with a clai# 1OC1P with a co#pulsory counterclai# in which no answer is needed.

6hat are the two $rounds for a #otion for a !ud$#ent on the pleadin$s> Are they the sa#e> he $rounds for the #otion for !ud$#ent on the pleadin$s are< 1. the answer fails to tender an issue. &. the answer ad#its the #aterial alle$ations of the pleadin$. Accordin$ to #aAa#% they are the sa#e "ecause the first $round purports to #a@e a show of controvertin$ the co#plaint "ut actually does not. *n the second $round% there is an ad#ission "y the party and no controversy as to the alle$ations in the co#plaint. A #otion on !ud$#ent on the pleadin$s as@s the court to render a !ud$#ent on what pleadin$s> he co#plaint and the answer. ,ifferentiate a #otion for !ud$#ent on the pleadin$s the sa#e as a default !ud$#ent. 4otion for ,efault Jud$#ent Jud$#ent on the Pleadin$s 'round Pre#ised on an ,efendant does answer filed "y not file any the defendant "ut ANS61R at all. fails to #a@e an issue as to the alle$ations of the co#plaint or ad#its the alle$ations 1vidence there is no after a default presentation of order% the court evidence and the can as@ the court renders plaintiff to present !ud$#ent "ased evidence e9 parte on the pleadin$s to his clai#. presented "efore it Relief No li#itation as to Relief shall not "e relief prayed for. different in @ind or a#ount as to what is prayed for in the co#plaint.

"! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA ("+ A su##ary of ad#itted facts and proposed stipulation of factsK (c+ he issues to "e tried or resolvedK (d+ he docu#ents or e9hi"its to "e presented% statin$ the purpose thereofK (e+ A #anifestation of their havin$ availed or their intention to avail the#selves of discovery procedures or referral to co##issionersK and (f+ he nu#"er and na#es of the witnesses% and the su"stance of their respective testi#onies. Cailure to file the pre2trial "rief shall have the sa#e effect as failure to appear at the pre2trial. (Sec. .% Rule 18+

>VII. PreATri ! .Ru!e /I0 6hen conducted.
After the last pleadin$ has "een served and filed% it shall "e the duty of the plaintiff to pro#ptly #ove e9 parte that the case "e set for pre2trial. (Sec. 1% Rule 18+

Nature and purpose. (Sec. &% Rule 18+
he pre2trial is ' nd tory. he court shall consider< (a+ he possi"ility of an a#ica"le settle#ent or of a su"#ission to alternative #odes of dispute resolutionK ("+ he si#plification of the issuesK (c+ he necessity or desira"ility of a#end#ents to the pleadin$sK (d+ he possi"ility of o"tainin$ stipulations or ad#issions of facts and of docu#ents to avoid unnecessary proofK (e+ he li#itation of the nu#"er of witnessesK (f+ he advisa"ility of a preli#inary reference of issues to a co##issionerK ($+ he propriety of renderin$ !ud$#ent on the pleadin$s% or su##ary !ud$#ent% or of dis#issin$ the action should a valid $round therefor "e found to e9istK (h+ he advisa"ility or necessity of suspendin$ the proceedin$sK and (i+ Such other #atters as #ay aid in the pro#pt disposition of the action.

Record of pre2trial.

he proceedin$s in the pre2trial shall "e recorded. (Sec. 7% Rule 18+

Pre2 rial =rder.

Notice of pre2trial.

he notice of pre2trial shall "e ser#ed on counse!% or on t+e p rty "+o + s no counse!. he counsel served with such notice is char$ed with the duty of notifyin$ the party represented "y hi#. (Sec. 0% Rule 18+

Bpon the ter#ination thereof% the court shall issue an order which shall recite in detail 1. the #atters ta@en up in the conference% &. the action ta@en thereon% 0. the a#end#ents allowed to the pleadin$s% and 3. the a$ree#ents or ad#issions #ade "y the parties as to any of the #atters considered. Should the action proceed to trial% the order shall e9plicitly define and li#it the issues to "e tried. he contents of the order shall control the su"se-uent course of the action% unless #odified "efore trial to prevent #anifest in!ustice. (Sec. 7% Rule 18+

REPU9LIC ACT No. IE5 COCPROCISE.
Articles .8.7 to .8E+& Civil Code' itle O*). 2 C=4PR=4*S1S AN, AR:* RA *=NS

Appearance of parties.
*t shall "e the duty of the parties and their counsel to appear at the pre2trial. (Sec. 3% Rule 18+

Non2Appearance of Parties.
he non2appearance of a party #ay "e e9cused 1. only if a valid cause is shown therefor or &. if a representative shall appear in his "ehalf fully authori8ed in writin$ to enter into an a#ica"le settle#ent% to su"#it to alternative #odes of dispute resolution% and to enter into stipulations or ad#issions of facts and of docu#ents. (Sec. 3% Rule 18+

C7AP 1R 1 C=4PR=4*S1S Art. 161I. A co'pro'ise is a contract where"y the parties% "y #a@in$ reciprocal concessions% avoid a liti$ation or put an end to one already co##enced. Art. 161D. he court shall endeavor to persuade the liti$ants in a civil case to a$ree upon so#e fair co#pro#ise. (n+ Art. 1626. 1very civil action or proceedin$ shall "e suspended< (1+ *f willin$ness to discuss a possi"le co#pro#ise is e9pressed "y one or "oth partiesK or (&+ *f it appears that one of the parties% "efore the co##ence#ent of the action or proceedin$% offered to discuss a possi"le co#pro#ise "ut the other party refused the offer. he duration and ter#s of the suspension of the civil action or proceedin$ and si#ilar #atters shall "e $overned "y such provisions of the rules of court as the Supre#e Court shall pro#ul$ate. Said rules of court shall li@ewise provide for the appoint#ent and duties of a#ica"le co#pounders. Art. 162/. he courts #ay #iti$ate the da#a$es to "e paid "y the losin$ party who has shown a sincere desire for a co#pro#ise. (n+

1ffect of failure to appear.

he & i!ure o& t+e p! inti&& to ppe r when so re-uired pursuant to the ne9t precedin$ section shall "e cause for dis#issal of the action. he dis#issal shall "e with pre!udice% unless otherwise ordered "y the court. A si#ilar & i!ure on t+e p rt o& t+e de&end nt shall "e cause to allow the plaintiff to present his evidence e9 parte and the court to render !ud$#ent on the "asis thereof. (Sec. ;% Rule 18+

Pre2trial "rief.

he parties shall file with the court and serve on the adverse party% in such #anner as shall ensure their receipt thereof at least three (0+ days "efore the date of the pre2trial% their respective pre2trial "riefs which shall contain% a#on$ others< (a+ A state#ent of their willin$ness to enter into a#ica"le settle#ent or alternative #odes of dispute resolution% indicatin$ the desired ter#s thereofK

"" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 Art. 1621. he courtBs ppro# ! is necess ry in co#pro#ises entered into "y $uardians% parents% a"senteeTs representatives% and ad#inistrators or e9ecutors of decedentTs estates. (181/a+ Art. 1622. Juridical persons #ay co#pro#ise only in the for# and with the re-uisites which #ay "e necessary to alienate their property. (181&a+ Art. 1623. here #ay "e a co#pro#ise upon the ci#i! !i %i!ity risin$ &ro' n o&&ense K "ut such co#pro#ise shall not e)tin$uis+ t+e pu%!ic ction &or t+e i'position o& t+e !e$ ! pen !ty . (1810+ Art. 1624. NO COCPROCISE upon the followin$ -uestions shall "e valid< (1+ he civil status of personsK (&+ he validity of a #arria$e or a le$al separationK (0+ Any $round for le$al separationK (3+ Cuture supportK (;+ he !urisdiction of courtsK (.+ Cuture le$iti#e. Art. 1625. A co#pro#ise co#prises only those o"!ects which are definitely stated therein% or which "y necessary i#plication fro# its ter#s should "e dee#ed to have "een included in the sa#e. A $eneral renunciation of ri$hts is understood to refer only to those that are connected with the dispute which was the su"!ect of the co#pro#ise. (181;+ Art. 162E. A co#pro#ise has upon the parties the effect and authority of res *udic t K "ut there shall "e no e)ecution e)cept in co'p!i nce "it+ *udici ! co'pro'ise. (181.+ Art. 162I. A co#pro#ise in which there is #ista@e% fraud% violence% inti#idation% undue influence% or falsity of docu#ents% is su"!ect to the provisions of Article 100/ of this Code. 7owever% one of parties cannot set up a #ista@e of fact as a$ainst the other if the latter% "y virtue of the co#pro#ise% has withdrawn fro# a liti$ation already co##enced. Art. 162D. 6hen the parties co#pro#ise $enerally on all differences which they #i$ht have with each other% the discovery of docu#ents referrin$ to one or #ore "ut not to all of the -uestions settled shall not itself "e a cause for annul#ent or rescission of the co#pro#ise% unless said docu#ents have "een concealed "y one of the parties. :ut the co#pro#ise #ay "e annulled or rescinded if it refers only to one thin$ to which one of the parties has no ri$ht% as shown "y the newly2discovered docu#ents. Art. 1636. *f after a liti$ation has "een decided "y a final !ud$#ent% a co#pro#ise should "e a$reed upon% either or "oth parties "ein$ unaware of the e9istence of the final !ud$#ent% the co'pro'ise ' y %e rescinded. *$norance of a !ud$#ent which #ay "e revo@ed or set aside is not a valid $round for attac@in$ a co#pro#ise. Art. 163/. *f one of the parties fails or refuses to a"ide "y the co#pro#ise% the ot+er p rty ' y eit+er en&orce t+e co'pro'ise or re$ rd it s rescinded nd insist upon +is ori$in ! de' nd.

JONATHAN PAMPOLINA

Re$ ! do Notes= 6hat is the pu"lic policy "asis for i#posin$ on the plaintiff the duty to #ove for a pre2trial> he transfer of responsi"ility to the plaintiff hi#self is "ased on the policy that whosever is the proponent of the particular sta$e of the proceedin$ should hi#self initiate the correspondin$ steps to have !udicial action ta@en thereon since he is presu#ed to "e the one interested in the speedy disposition thereof. he pre2trial and the trial on the #erits of the case #ust "e held in separate dates. 6hen can the plaintiff properly #ove for a pre2trial> A pre2trial cannot "e validly held until the last pleadin$ has "een filed% which last pleadin$ #ay "e the plaintiffAs reply% 1OC1P where the period to file the last pleadin$ has lapsed. ,efendant in a plunder case will not "e a"le to attend the pre2trial "ecause of @nee sur$ery in 7on$ Jon$. 7e wants to appoint you as his representative. 6hat #ust "e contained in the special power of attorney to "e $iven to you% in order for the court to reco$ni8e you as the defendantAs proper representative> he special authority on the partyAs representative #ust confer the followin$< a. power to enter into a co#pro#ise or a#ica"le settle#ent. ". power to su"#it to alternative #odes of dispute settle#ent c. power to enter into stipulations or ad#ission of fact and docu#ents. he #ere presentation of such written authority is not sufficient% "ut #ust "e co#ple#ented "y a showin$ of )A5*, CABS1 for the non2appearance of the party hi#self. *n the precedin$ e9a#ple% the written special power of authority $iven to you "y the defendant was rendered unintelli$i"le "ecause you spilled oran$e #ocha frappucino on it while studyin$ the case at Star"uc@s. he defendant is already under$oin$ sur$ery in 7on$ Jon$ and cannot fa9 a new SPA. Can you still appear in court without such written authority> Ges. *t has "een held that the authority need not "e in writin$ and #ay "e esta"lished "y co#petent evidence or su"se-uently ratified "y the party concerned. 6here the defendant was present at the pre2trial% the court has no authority to thereafter call a second pre2trial and declare defendant in default for his a"sence therein. 6here a pre2trial has already "een held% the fact that an a#ended co#plaint was later filed% with leave of court% does not necessitate another pre2trial.

"9 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

Notice of pre2trial was served on the defendant% "ut not on his counsel. ,efendant ac@nowled$ed receipt "ut failed to infor# his counsel "ecause he fi$ured in a frea@ $as station accident and was i##o"ili8ed for a wee@ for "urns all over his "ody. Counsel failed to attend the pre2trial. At pre2trial% trial court declared defendant in default and received evidence of the plaintiff e9 parte. 6as the trial courtAs action valid> No. 6here petitionerAs counsel was not served with a separate notice of pre2trial% althou$h the client ac@nowled$ed receipt of a copy thereof in its "ehalf and of said counsel% said service is insufficient and the order of default and the e9 parte proceedin$s "efore the co##issioner are null and void. 9 utist Notes=

Plaintiff can appeal fro# dis#issal% as it is a final order. A#en Notes .16 J n 640

the

order

of

6hat is the nature and purpose of pre2trial> *t is for the pro#pt disposition of case. 6ho has the duty to #ove for a pre2trial> 6hen should he do so> *t is the duty of the plaintiff to #ove for pre2 trial and should do so upon the filin$ of the last pleadin$ allowed or upon the lapse of the period for filin$ of the last pleadin$ allowed. Plaintiff as the party #ovin$ for the pre2trial also decides the date of pre2trial hearin$. rue or false. Calse. *t is up to the court to decide the date of the pre2trial hearin$. 6hose appearance is re-uired in a pre2trial> he $eneral rule is that "oth the party and counsel should appear at the pre2trial. he rationale for the personal appearance of the party is for the possi"ility of a#ica"le settle#ent% resort to alternative #odes of dispute resolution and for stipulation of the facts. *n the pre2trail hearin$% Plaintiff A was a"le to attend% "ut his counsel% Atty. : did not. Should Plaintiff A "e declared non2suited "ecause his lawyer did not appear in trial> 4aAa# is of the opinion that it can "e ar$ued either way. Bnder a strict interpretation of the Rules% the appearance of "oth the party AN, his counsel is what is re-uiredK failure to appear of either of the#% renders the party non2suited. :ut under an old rulin$ of the SC% the a"sence of the lawyer in a pre2trial is i##aterial and should not pre!udice the party% "ein$ represented "y the a"sent lawyer% who appeared at the pre2trial. Jonathan 5andoil v. 4an$udadatu his involved the non2appearance of the 5andoil and its two counsels in the pre2trial hearin$. he two counsels were said to have withdrawn their services fro# 5andoil. rial court allowed the presentation of evidence e9 parte% upon 5andoilAs a"sence at pre2trial. Bnder Sec. 0% Rule 7% counsel re#ains to "e counsel of record% until there is a for#al withdrawal of counsel throu$h the court. he re#edy for non2appearance at the pre2 trial which resulted in opposin$ partyAs presentation of evidence e9 parte is a #otion for reconsiderationK which is unli@e a default !ud$#ent which has different re#edies.

6hat is pre2trial> 6hat is its purpose> Pre2trial is a conference or hearin$ at which the court with the cooperation of the parties% see@s to deter#ine definitively what precisely are the factual issues to "e tried and how each party intends to esta"lish his position on each disputed factual issue. ,oes the pre2trial cover only factual issues> No% the pre2trial covers "oth factual and le$al issues. Pre2trial is not #andatory if the issue is purely le$al. Pre2trials are conducted after the last pleadin$ has "een served and filed. 4ay pre2trial "e scheduled "y the plaintiff% if he has not filed an answer to the defendantAs co#pulsory counterclai#> Ges. Pre2trial #ay "e properly scheduled even if the plaintiff has not yet filed his answer to the defendantAs co#pulsory counterclai#% since no answer is re-uired to "e filed thereto. 6here no"ody appeared at the pre2trial e9cept the counsel for the plaintiff "ut said counsel had no special authority to represent the plaintiff% the plaintiff #ay properly "e declared non2suited. he plaintiff #ay "e so declared non2suited and the case dis#issed without #otion "y the defendant. rial court has the discretion to declare a party non2 suited and% unless otherwise provided% such dis#issal has the effect of an ad!udication on the #erits. 6hat are the re#edies for declaration on non2suited party> ,efendant can file a #otion for reconsideration (without need for affidavits of #erit+ on the $rounds of CA41. *f this is denied% he can file certiorari under Rule .; as such order is interlocutory.

90 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA the parties to ar$ue or to su"#it their respective #e#oranda or any further pleadin$s. (Sec. ;% Rule 0/+ *f several defendants or third2party defendants% and so forth% havin$ separate defenses appear "y different counsel% the court shall deter#ine the relative order of presentation of their evidence. (Sec. ;% Rule 0/+

>VIII. Course o& Tri ! +' $rial Proper *1ule 08# Notice of trial.
Bpon entry of a case in the trial calendar% the cler@ shall notify the parties of the date of its trial in such #anner as shall ensure his receipt of that notice t !e st &i#e .40 d ys %e&ore suc+ d te. (Sec. 1% Rule 0/+

A$reed state#ent of facts.
he parties to any action #ay a$ree% in writin$% upon the facts involved in the liti$ation% and su"#it the case for !ud$#ent on the facts a$reed upon% without the introduction of evidence. *f the parties a$ree only on so#e of the facts in issue% the trial shall "e held as to the disputed facts in such order as the court shall prescri"e. (Sec. .% Rule 0/+

Ad!ourn#ents and postpone#ents.
A court #ay ad!ourn a trial fro# day to day% and to any stated ti#e% as the e9peditious and convenient transaction of "usiness #ay re-uire% "ut shall have no power to ad!ourn a trial for a lon$er period than one 'ont+ &or e c+ d*ourn'ent % nor 'ore t+ n t+ree 'ont+s in !! % e9cept when authori8ed in writin$ "y the Court Ad#inistrator% Supre#e Court. (Sec. &% Rule 0/+

State#ent of !ud$e.

,urin$ the hearin$ or trial of a case any state#ent #ade "y the !ud$e with reference to the case% or to any of the parties% witnesses or counsel% shall "e #ade of record in the steno$raphic notes. (Sec. 7% Rule 0/+

Re-uisites of #otion to postpone trial for a"sence of evidence.

Suspension of actions.

A #otion to postpone a trial on the $round of a"sence of evidence can "e $ranted only upon a. affidavit showin$ the ' teri !ity or re!e# ncy o& suc+ e#idence% and ". that due di!i$ence + s %een used to procure it. (Oception<+ :ut if the adverse party ad#its the facts to "e $iven in evidence% even if he o"!ects or reserves the ri$ht to their ad#issi"ility% the trial shall not "e postponed. (Sec. 0% Rule 0/+

he suspension of actions shall "e $overned "y the provisions of the Civil Code. (Sec. 8% Rule 0/+

Jud$e to receive evidenceK dele$ation to cler@ of court.
he !ud$e of the court where the case is pendin$ shall personally receive the evidence to "e adduced "y the parties. 7owever% in default or e9 parte hearin$s% and in any case where the parties a$ree in writin$% the court ' y de!e$ te t+e reception o& e#idence to its c!er( o& court who is a #e#"er of the "ar. he cler@ of court shall have no power to rule on o"!ections to any -uestion or to the ad#ission of e9hi"its% which o"!ections shall "e resolved "y the court upon su"#ission of his report and the transcripts within ten (1/+ days fro# ter#ination of the hearin$. (Sec. 9% Rule 0/+

Re-uisites of #otion to postpone trial for illness of party or counsel.

A #otion to postpone a trial on the $round of illness of a party or counsel #ay "e $ranted a. if it appears upon affidavit or sworn certification that the presence o& suc+ p rty or counse! t t+e tri ! is indispens %!e and ". that the c+ r cter o& +is i!!ness is suc+ s to render +is nonA ttend nce e)cus %!e. (Sec. 3% Rule 0/+

OCA Circu! r No. 2DADI

=rder of trial.
Su"!ect to the provisions of section & of Rule 01% and unless the court for special reasons otherwise directs% the trial shall "e li#ited to the issues stated in the pre2trial order and shall proceed as follows< (a+ he p! inti&& shall adduce evidence in support of his co#plaintK ("+ he de&end nt shall then adduce evidence in support of his defense% counterclai#% cross2clai# and third2party co#plaintK (c+ he t+irdAp rty de&end nt% if any% shall adduce evidence of his defense% counterclai#% cross2clai# and fourth2party co#plaintK (d+ he &ourt+Ap rty, nd so &ort+% if any% shall adduce evidence of the #aterial facts pleaded "y the#K (e+ he p rties $ inst "+o' ny counterc! i' or crossAc! i' + s %een p!e ded % shall adduce evidence in support of their defense% in the order to "e prescri"ed "y the courtK (f+ he parties #ay then respectively adduce re%uttin$ e#idence on!y% unless the court% for $ood reasons and in the furtherance of !ustice% per#its the# to adduce evidence upon their ori$inal caseK and ($+ Bpon ad#ission of the evidence% the case shall "e dee#ed su%'itted &or decision% unless the court directs

Re$ ! do= ,oes a #otion to postpone a trial due to illness re-uire a #edical certificate> A #ere #edical certificate is $enerally insufficient. *t #ust "e under oath% or in the for# of an affidavit. 6hen can a civil action or proceedin$ "e suspended> Bnder Article &/0/ of the Civil Code% every civil action or proceedin$ shall "e suspended< 1. if willin$ness to discuss a possi"le co#pro#ise is e9pressed "y one or "oth parties. &. if it appears that one of the parties% "efore the co##ence#ent of the action or proceedin$% offered to discuss a possi"le co#pro#ise "ut the other party refused the offer. he duration and ter#s of suspension of the civil action or proceedin$ and si#ilar #atters shall "e

91 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

$overned "y such provisions of the R=C as the SC shall pro#ul$ate. Said R=C shall li@ewise provide for the appoint#ent and duties of a#ica"le co#pounders. 6hat are the re-uisites for dele$ation of reception of evidence to the cler@ of court> 1. he dele$ation #ay "e #ade only in default or e9 parte hearin$s% or on a$ree#ent in writin$ "y the parties. &. he reception of evidence shall "e #ade only "y the cler@ of court who is a #e#"er of the "ar. 0. Said cler@ shall have no power to rule on o"!ections to any -uestion or to the ad#ission of evidence or e9hi"its 3. 7e shall su"#it his report and transcripts of the proceedin$s% to$ether with the o"!ections to "e resolved "y the court% within ten days fro# the ter#ination of the hearin$. 9 utist Notes=

6hat are the $rounds for postponin$ a trial upon #otion of the party> 1. a"sence of evidence &. illness of the party or counsel *s i#pendin$ death a $round for postponin$ trial> =n a case to case "asis. Can the court re-uire the plaintiff to present witnesses first% on direct testi#ony% "efore anyone of the# is cross2e9a#ined> Ges. :ecause it is still within the rule that the plaintiff presents his evidence first in the for# of testi#ony. Can a !ud$e in a civil case direct that a party present all the direct testi#ony of all his witnesses in the for# of affidavits su"!ect to cross e9a#ination> *t depends on the character of the proceedin$. *n case of su##ary proceedin$s% testi#ony "y affidavits and counter2 affidavits are allowed. (Rule 9 of the Revised Rules of Su##ary Procedure+ :ut in non2su##ary proceedin$s% it is not allowed.

92 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

.' Ainds o! $rial a. Consolidated and Separate (Rule 01+ C=NS=5*,A *=N =R S1)1RANC1 Conso!id tion.
6hen actions involvin$ a co''on -uestion o& ! " or & ct are pendin$ "efore the court% a. it #ay order a !oint hearin$ or trial of any or all the #atters in issue in the actionsK ". it #ay order all the actions consolidatedK and c. it #ay #a@e such orders concernin$ proceedin$s therein as #ay tend to avoid unnecessary costs or delay. (Sec. 1% Rule 01+

0. "y hearin$ only the principal case and suspendin$ the hearin$ on the others until !ud$#ent has "een rendered in the principal case. (Sala8ar v. CC* D 5a$una% .3 Phil. 78;+ Can the SC order the consolidation of cases involvin$ the sa#e parties and sa#e issues where one was filed in R C2?C and R C2Cavite> Ges. =n considerations of !udicial econo#y and for the convenience of parties% the SC can also order the consolidation of cases involvin$ su"stantially the sa#e parties and issues "ut which have "een filed in different courts of e-ual !urisdiction. (Superlines ransco.% v. )ictor% 0/ Sept. 1980+ Can the R C D ?C order separation of trial of clai#s% where one of the clai#s involves property in 7on$ Jon$> Ges. he provision per#ittin$ separate trials presupposes that the clai#s involved are within the !urisdiction of the court. 6hen one of the clai#s is not within its !urisdiction% the sa#e should "e dis#issed% so that it #ay "e filed in the proper court. ". rial "y Co##issioners. (Rule 0&+ TRIAL 9L COCCISSIONER Reference "y consent.
:y written consent of "oth parties% the court #ay order any or all of the issues in a case to "e referred to a co##issioner to "e a$reed upon "y the parties or to "e appointed "y the court. As used in these Rules% the word Ico##issionerI includes a referee% an auditor and an e9a#iner. (Sec. 1% Rule 0&+

Separate trials.
he court% in furtherance of convenience or to avoid pre!udice% #ay order a sep r te tri ! of any clai#% cross2clai#% counterclai#% or third2party co#plaint% or of any separate issue or of any nu#"er of clai#s% cross2 clai#s% counterclai#s% third2party co#plaints or issues. (Sec. &% Rule 01+

Re$ ! do Notes= 6hat is the rationale for consolidation or !oint hearin$> 1. to avoid #ultiplicity of suits &. to $uard a$ainst oppression or a"use 0. to prevent delay 3. to clear con$ested doc@ets ;. to si#plify the wor@ of the trial court .. to save unnecessary costs and e9penses *n short% consolidation see@s to attain !ustice with the least e9pense and ve9ation to the liti$ants. (Palanca v. ?ueru"in% &9 Nov. 19.9+ *s consolidation li#ited to cases pendin$ "efore the sa#e court> 'enerally% the rule on consolidation of cases applies only to cases pendin$ "efore the sa#e !ud$e% not to cases pendin$ in different "ranches of the sa#e court or in different courts. (PA5 v. eodora% 97 Phil. 3.1+ :ut Re$alado is of the opinion that% whenever appropriate% and in the interest of !ustice% consolidation of cases in different "ranches of the sa#e court or in different courts can "e affected. Consolidation of cases on appeal and assi$ned to different divisions of the SC or CA is also authori8ed% and $enerally the case which was appealed and "earin$ the +i$+er doc(et nu'%er is consolidated with the case havin$ the lower doc@et nu#"er. (:ut Re$alado $ives no le$al "asis for this.+ 6hat are the ways of consolidatin$ a case> 1. "y recastin$ the cases already instituted% conductin$ only one hearin$ and renderin$ only one decision. &. "y consolidatin$ the e9istin$ cases and holdin$ only one hearin$ and renderin$ only one decision.

Reference ordered on #otion.
6hen the parties do not consent% the court #ay% upon the application of either or of its own #otion% direct a reference to a co##issioner in the followin$ cases< (a+ 6hen the trial of an issue of fact re-uires the e9a#ination of a !on$ ccount on either side% in which case the co##issioner #ay "e directed to hear and report upon the whole issue or any specific -uestion involved thereinK ("+ 6hen the ta@in$ of an account is necess ry &or t+e in&or' tion o& t+e court "efore !ud$#ent% or for carryin$ a !ud$#ent or order into effectK (c+ 6hen a -uestion o& & ct, ot+er t+ n upon t+e p!e din$s, rises upon 'otion or ot+er"ise % in any sta$e of a case% or for carryin$ a !ud$#ent or order into effect. (Sec. &% Rule 0&+

=rder of referenceK powers of the co##issioner.

6hen a reference is #ade% the cler@ shall forthwith furnish the co##issioner with a copy of the order o& re&erence. he order of reference #ay a. specify or li#it the powers of the co##issioner% and direct hi# to report only upon particular issues% or ". direct hi# to do or perfor# particular acts% c. direct hi# or to receive and report evidence only% and

93 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 d. fi9 the date for "e$innin$ and closin$ the hearin$s and for the filin$ of his report. Su"!ect to the specifications and li#itations stated in the order% the co##issioner has and shall e9ercise the po"er to re$u! te t+e proceedin$s in every hearin$ "efore hi# and to do !! cts nd t (e !! 'e sures necess ry or proper for the efficient perfor#ance of his duties under the order. 7e #ay issue su"poenas and su"poenas duces tecu#% swear witnesses% and unless otherwise provided in the order of reference% he ' y ru!e upon t+e d'issi%i!ity o& e#idence. he trial or hearin$ "efore hi# shall proceed in all respects as it would if held "efore the court. (Sec. 0% Rule 0&+

JONATHAN PAMPOLINA d ys "it+in "+ic+ to si$ni&y $rounds o& o%*ections to t+e &indin$s o& t+e report% if they so desire. ="!ections to the report "ased upon $rounds "+ic+ "ere # i! %!e to t+e p rties durin$ t+e proceedin$s %e&ore t+e co''issioner % other than o"!ections to the findin$s and conclusions therein set forth% shall not "e considered "y the court unless they were #ade "efore the co##issioner. (Sec. 1/% Rule 0&+

7earin$ upon report.
Bpon the e9piration of the period of ten (l/+ days referred to in the precedin$ section% the report shall "e set for hearin$% after which the court shall issue an order< a. adoptin$ ". #odifyin$% or c. re!ectin$ the report in whole or in part% or d. reco##ittin$ it with instructions% or e. re-uirin$ the parties to present further evidence "efore the co##issioner or the court. (Sec. 11% Rule 0&+

=ath of co##issioner.

:efore enterin$ upon his duties the co##issioner shall "e sworn to a faithful and honest perfor#ance thereof. (Sec. 3% Rule 0&+

Proceedin$s "efore co##issioner.
Bpon receipt of the order of reference and unless otherwise provided therein% the co##issioner shall forthwith set a ti#e and place for the first #eetin$ of the parties or their counsel to "e held "it+in ten .!60 d ys &ter t+e d te o& t+e order o& re&erence and shall notify the parties or their counsel. (Sec. ;% Rule 0&+

Stipulations as to findin$s.

6hen the parties stipulate that a co##issionerTs findin$s of fact shall "e final% only -uestions of law shall thereafter "e considered. (Sec. 1&% Rule 0&+

Co#pensation of co##issioner.
he court shall allow the co##issioner such reasona"le co#pensation as the circu#stances of the case warrant% to "e ta9ed as costs a$ainst the defeated party% or apportioned% as !ustice re-uires. (Sec. 10% Rule 0&+

Cailure of parties to appear "efore co##issioner.
*f a party & i!s to ppe r t t+e ti'e nd p! ce ppointed% a. the co##issioner #ay proceed e9 parte or% ". in his discretion% ad!ourn the proceedin$s to a future day% $ivin$ notice to the a"sent party or his counsel of the ad!ourn#ent. (Sec. .% Rule 0&+

=rder of e9propriation.
*f the o"!ections to and the defenses a$ainst the ri$ht of the plaintiff to e9propriate the property are overruled% or when no party appears to defend as re-uired "y this Rule% the court #ay issue an order of e9propriation declarin$ that the plaintiff has a lawful ri$ht to ta@e the property sou$ht to "e e9propriated% for the pu"lic use or purpose descri"ed in the co#plaint% upon the pay#ent of !ust co#pensation to "e deter#ined as of the date of the ta@in$ of the property or the filin$ of the co#plaint% whichever ca#e first. A final order sustainin$ the ri$ht to e9propriate the property #ay "e appealed "y any party a$$rieved there"y. Such appeal% however% shall not prevent the court fro# deter#inin$ the !ust co#pensation to "e paid. After the rendition of such an order% the plaintiff shall not "e per#itted to dis#iss or discontinue the proceedin$ e9cept on such ter#s as the court dee#s !ust and e-uita"le. (Sec. ;% Rule .7+

Refusal of witness.
he refusal of a witness to o"ey a su"poena issued "y the co##issioner or to $ive evidence "efore hi#% shall "e dee#ed a conte#pt of the court which appointed the co##issioner. (Sec. 7% Rule 0&+

Co##issioner shall avoid delays.
*t is the duty of the co##issioner to proceed with all reasona"le dili$ence. 1ither party% on notice to the parties and co##issioner% #ay apply to the court for an order re-uirin$ the co##issioner to e9pedite the proceedin$s and to #a@e his report. (Sec. 8% Rule 0&+

Report of co##issioner.
Bpon the co#pletion of the trial or hearin$ or proceedin$ "efore the co##issioner% he shall file with the court his report in writin$ upon the #atters su"#itted to hi# "y the order of reference. 6hen his powers are not specified or li#ited% he shall set forth his findin$s of fact and conclusions of law in his report. 7e shall attach thereto all e9hi"its% affidavits% depositions% papers and the transcript% if any% of the testi#onial evidence presented "efore hi#. (Sec. 9% Rule 0&+

Re$ ! do Notes Can the co##issioner rule on the ad#issi"ility of evidence> Ges. *n the proceedin$s under this section% the co##issioner #ay rule upon the ad#issi"ility of evidence% BN51SS otherwise provided in the order of reference. Note that the cler@ of court under Sec. 9% Rule 0/ does N= have the sa#e power and the cler@ of court shall !ust receive the evidence su"!ect to the o"!ections interposed thereto and such -uestions or o"!ections shall "e resolved "y the court after the cler@ has su"#itted his report in it.

Notice to parties of the filin$ of report.

Bpon the filin$ of the report% the parties shall "e notified "y the cler@% and they shall "e !!o"ed ten .!60

94 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

Are the co##issioners allowed to do whatever acts in proceedin$ with the trial% despite the li#ited scope of their proceedin$s> Ges. 6hat Section 0% authori8es to "e li#ited is the scope of the proceedin$s "efore the co##issioner% not the 4=,A5* G thereof. he order of reference #ay direct the co##issioner to perfor# different acts in and for purposes of the proceedin$s. (Al!e#As Corp. v. CA% &8 4ar. &//1+ Considerin$ that the co##issioners are allowed to proceed in whatever #ode they dee# fit and necessary% are they allowed to dispense with hearin$> No. 6hen the co##issioner did not hold a hearin$ in violation of Section 0 of Rule 0/% it is error for the trial court to issue an order approvin$ said co##issionerAs report over the o"!ection of the a$$rieved party. (Jaca v. ,avao 5u#"er% &9 4ar. 198&+ 6hatever #ay "e the case% the re-uire#ent for the co##issioners to hold a hearin$ cannot "e dispensed with as this is the essence of due process. (Jaca v. ,avao 5u#"er% &9 4ar. 198&+ 9 utist Notes

C is not "ound "y the findin$s of the co##issioners or precluded fro# disre$ardin$ the sa#e and it #ay adopt% #odify or re!ect the report. C did not adopt the survey #ade "y co##issioners "ecause the survey of the land was done individually.

*f the ri$ht to trial with the assistance of assessors is de#anded% is it a #atter of ri$ht> Ges. Bnder Sec.1% Rule 0&% the !ud$e S7A55... #eanin$ the !ud$e has N= discretion. N= 1< :autista< his is practically a dead provision "ut it is the @ind of provisions which they resurrect in the "ar. :ut as per wordin$ in the 1997 R=C% it is now 4AG and not S7A55% so it is now discretionary. Can the co##issioners write opinions to cases> Ges% "ut it is the !ud$e who finally deter#ines the rulin$. he value of the co##issionerAs opinion is #erely to advise the !ud$e on -uestions of facts. 6hen are co##issioners appointed "y the trial court> :y written consent of "oth parties% or if they disa$ree upon #otion of any of the parties or "y the court #otu propio.

An$ara v. Ced#an ,evelop#ent Corp. Ced#an filed a co#plaint a$ainst An$ara for refusin$ to vacate a parcel of land which supposedly "elon$ed to Ced#an. C ordered the constitution of a co##ittee of 0 surveyors. After the survey% An$ara filed a #otion to render !ud$#ent "ased on the co##issionersA report. C denied An$araAs #otion sayin$ that co##issioners did not conduct a !oint survey of the land.

95 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA A copy of the pleadin$2in2intervention shall "e attached to the #otion and served on the ori$inal parties. (Sec. &% Rule 19+

0' ncidents or Processes a. Calendar of Cases (Rule &/+ Calendar of cases.
he cler@ of court% under the direct supervision of the !ud$e% shall @eep a calendar of cases 1. for pre2trial% &. for trial% 0. for those whose trials were ad!ourned or postponed% and 3. for those with #otions to set for hearin$. Preference shall "e $iven to ha"eas corpus cases% election cases% special civil actions% and those so re-uired "y law. (Sec. 1% Rule &/+

Pleadin$s2in2intervention.

he intervenor shall file a co#plaint2in2 intervention if he asserts a clai# a$ainst either or all of the ori$inal parties% or an answer2in2intervention if he unites with the defendin$ party in resistin$ a clai# a$ainst the latter. (Sec. 0% Rule 19+

Answer to co#plaint2in2intervention.
he answer to the co#plaint2in 2intervention shall "e filed within fifteen (1;+ days fro# notice of the order ad#ittin$ the sa#e% unless a different period is fi9ed "y the court. (Sec. 3% Rule 19+

Assi$n#ent of cases.

he assi$n#ent of cases to the different "ranches of a court shall "e done e9clusively "y r &&!e. he assi$n#ent shall "e done in open session of which ade-uate notice shall "e $iven so as to afford interested parties the opportunity to "e present. (Sec. &% Rule &/+

Re$ ! do Notes. *s there an a"solute ri$ht to intervene> No. he ri$ht to intervene is not an a"solute ri$ht. he procedure to secure the ri$ht to intervene is fi9ed "y the statute or rule and intervention can "e secured only in accordance with the ter#s of the applica"le provisions. he allowance or disallowance of a #otion to intervene is addressed to the sound discretion of the court. (:i$ Country Ranch Corp. v. CA% 1& =ct. 199&+ ,oes intervention chan$e the nature of the action> No. *ntervention is not intended to chan$e the nature and character of the action itself. ('arcia v. ,avid% .7 Phil. &79+ *n $eneral% an independent controversy cannot "e in!ected into a suit "y intervention% hence such intervention will not "e allowed where it would enlar$e the issues in the action and e9pand the scope of the re#edies. (:i$ Country Ranch Corp. v. CA% 1& =ct. 199&+ ,istin$uish *ntervention (Rule 19+ and *nterpleader (Rule .&+ *ntervention *nterpleader Jind of Ancilliary action =ri$inal Action Action 6hen *n any of the four Presupposes that proper situations the plaintiff has #ention in Rule no interest in the 19 su"!ect #atter of the action or has an interest therein which in whole or in part% is not disputed "y the other parties to the action. Parties to ,efendants are ,efendants are the suit already ori$inal "ein$ sued parties to the precisely to pendin$ suit i#plead the#

A#en

Notes .11 J n 640

6hat @inds of proceedin$s #ust "e calendared> 1. trial &. pre2trial 0. ad!ourn#ent and postpone#ent 3. #otions with preference to ha"eas corpus cases% election cases% special civil actions. 6hat are the two conditions for a proper rafflin$ of cases> 1. Rafflin$ should "e done in open session. &. Rafflin$ is done with ade-uate notice. 6hy should the rafflin$ of cases "e in open session> Rafflin$ is done in open session% in order to prevent collusion. Any person can "e at the rafflin$ to avoid any cheatin$. ". *ntervention (Rule 19+ 6ho #ay intervene.
a. A person who has a !e$ ! interest in t+e ' tter in liti$ation% or in the success of either of the parties% or an interest a$ainst "oth% or ". A person is so situated as to "e d#erse!y &&ected %y distri%ution or ot+er disposition o& property in the custody of the court or of an officer thereof #ay% with leave of court% "e allowed to intervene in the action. he court shall consider whether or not the intervention will unduly delay or pre!udice the ad!udication of the ri$hts of the ori$inal parties% and whether or not the intervenorTs ri$hts #ay "e fully protected in a separate proceedin$. (Sec. 1% Rule 19+

he #otion to intervene #ay "e filed at any ti#e %e&ore rendition o& *ud$'ent %y t+e tri ! court. 9 of 229

i#e to intervene.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

6hat is the effect of dis#issal of the principal action to the co#plaint in intervention> A. ntervention is dismissed' *-rg"' Matictic v' Elbinias& .3 ;eb +,73# Since said order had achieved finality% the dis#issal of the #otion for intervention is unavoida"le as the #ain action havin$ ceased to e9ist% there was no pendin$ proceedin$ wherein the intervention #ay "e "ased. :esides% its interests #ay "e protected in a separate case which it #ay prevail upon the #unicipality to re2file or if the intervenor has the re-uisite authority% it can file the action for e9propriation itself. :. ntervention continues despite dismissal o! the principal action' *Metropolitan -an( v' Presiding Judge& .+ Sept' +,,8# *f the co#plaint2in2intervention was filed :1C=R1 the plaintiffAs action had "een e9pressly dis#issed% the intervenorAs co#plaint was not su"!ect to dis#issal on the $round that no action was pendin$% "ecause dis#issal of plaintiffAs action did not affect the ri$hts of the intervenor or effect the dis#issal of the intervenorTs co#plaint. 4oreover% to re-uire private respondent to refile another case will result in unnecessary delay and e9penses and entail #ultiplicity of suits and% therefore% defeat the very purpose of intervention which is to deter#ine all conflictin$ clai#s on the #atter in liti$ation and settle in one action and "y a sin$le !ud$#ent the whole controversy a#on$ the persons involved. *s intervention optional> Ges. 6hile% as a rule% intervention is optional and whether the failure to intervene #ay "e dee#ed as waiver or estoppel depends on each case. 6hat are the twin re-uire#ents for filin$ a co#plaint in intervention> 1. that the #ovant has direct le$al interest in the #atter in liti$ation. &. consideration #ust "e $iven as to whether or not the ad!udication of the ri$hts of the ori$inal parties #ay "e delayed or pre!udiced% while those of the intervenor #ay "e protected in a separate proceedin$. A#en Notes .11 J n 640

1. Person has a le$al interest in the #atter in liti$ation. &. Person has a le$al interest in the success of either party 0. Person has an interest a$ainst "oth 3. Person is so situated as to "e adversely affected "y a distri"ution or other disposition of property in the custody of the court or of an officer thereof. Repu"lic v. Co!uan$co S4C filed an intervention in the se-uestration of S4C shares purchased supposedly "y coco levy funds. S4C is not party to the Sandi$an"ayan case a$ainst Co!uan$coK it was #erely a transferee of the ri$hts. As a transferee pendente lite% S4C is "ound "y the rulin$s of the court on its transferor% which was the C**C co#panies of Co!uan$co. S4C need not "e a party to the suit "ecause his interest is a"ly represented "y his transferor% who is the ori$inal party in the co#plaint. 7oliday *nn v. Sandi$an"ayan his was the #ana$e#ent contract of 7oliday *nn with NR7,C% which was rescinded without honourin$ 7oliday *nnAs ri$ht of first refusal to purchase the hotel. NR7,C was su"!ected to se-uestration proceedin$s "y the PC'' as part of the ill2$otten wealth of :enedicto. he cause of action in the Sandi$an"ayan case referred to the issue of whether or not the hotel of NR7,C was part of the ill2$otten wealth. :ut 7oliday *nnAs cause of action was dissi#ilar and not contin$ent upon the case in the Sandi$an"ayan% "ecause it was for the interpretation of the #ana$e#ent contract which $ave it a ri$ht of first refusal. his was a civil action which could "e tried separately. =rdone8 v. 'ustilo his was the case of the recla#ation contract approved "y the #ayor% in which "aran$$ay captains tried to intervene sayin$ that the recla#ation contract was void and not actual recla#ation too@ place. Since the #ain case involvin$ the #ayor and the assi$nor of the recla#ation co#pany was resolved throu$h an a#ica"le settle#ent% the co#plaint in intervention should li@ewise "e dis#issed "ecause it is a ancillary action which had no le$ to stand on upon the approval of the co#pro#ise a$ree#ent. c. Su"poena. (Rule &1+ Su"poena and su"poena duces tecu#.
Su%poen is a process directed to a person re-uirin$ hi# to attend and to testify at the hearin$ or the trial of an action% or at any investi$ation conducted "y co#petent authority% or for the ta@in$ of his deposition. *t #ay also re-uire hi# to "rin$ with hi# any "oo@s% docu#ents% or other thin$s under his control% in

6hat is the purpose of intervention> *ntervention is for the "enefit of non2parties% who #ust have an interest or is situated to "e adversely affected. A co#plaint in intervention is directed a$ainst the defendant and an answer in interventions is directed a$ainst the plaintiff. 6hat are the four $rounds for intervenin$ in an action>

9! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 which case it is called a su%poen Rule &1+ duces tecu'. (Sec. 1%

JONATHAN PAMPOLINA hi# the fees for one dayTs attendance and the @ilo#etra$e allowed "y these Rules% e9cept that% when a su"poena is issued "y or on "ehalf of the Repu"lic of the Philippines or an officer or a$ency thereof% the tender need not "e #ade. he service #ust "e #ade so as to allow the witness a reasona"le ti#e for preparation and travel to the place of attendance. *f the su"poena is duces tecu#% the reasona"le cost of producin$ the "oo@s% docu#ents or thin$s de#anded shall also "e tendered. (Sec. .% Rule &1+

:y who# issued.
he su"poena #ay "e issued "y< a+ the court "efore who# the witness is re-uired to attendK "+ the court of the place where the deposition is to "e ta@enK c+ the officer or "ody authori8ed "y law to do so in connection with investi$ations conducted "y said officer or "odyK or d+ any Justice of the Supre#e Court or of the Court of Appeals in any case or investi$ation pendin$ within the Philippines. (Sec. &% Rule &1+ 6hen application for a su"poena to a prisoner is #ade% the !ud$e or officer shall e9a#ine and study carefully such application to deter#ine whether the sa#e is #ade for a valid purpose. No prisoner sentenced to death% reclusion perpetua or life i#prison#ent and who is confined in any penal institution shall "e "rou$ht outside the said penal institution for appearance or attendance in any court unless authori8ed "y the Supre#e Court. (Sec. &% Rule &1+

Personal appearance in court.
A person present in court "efore a !udicial officer #ay "e re-uired to testify as if he were in attendance upon a su"poena issued "y such court or officer. (Sec. 7% Rule &1+

Co#pellin$ attendance.
*n case of & i!ure o& "itness to ttend % the court or !ud$e issuin$ the su"poena% upon proof of the service thereof and of the failure of the witness% #ay issue a " rr nt to the sheriff of the province% or his deputy% to arrest the witness and "rin$ hi# "efore the court or officer where his attendance is re-uired% and the cost of such warrant and sei8ure of such witness shall "e paid "y the witness if the court issuin$ it shall deter#ine that his failure to answer the su"poena was willful and without !ust e9cuse. (Sec. 8% Rule &1+

Cor# and contents.

A su"poena shall 1. state the na#e of the court and the title of the action or investi$ation% &. "e directed to the person whose attendance is re-uired% and 0. in the case of a su"poena duces tecu#% it shall also contain a reasona"le description of the "oo@s% docu#ents or thin$s de#anded which #ust appear to the court pri#a facie relevant. (Sec. 0% Rule &1+

Conte#pt.
Cailure "y any person without ade-uate cause to o"ey a su"poena served upon hi# shall "e dee#ed a conte#pt of the court fro# which the su"poena is issued. *f the su"poena was not issued "y a court% the diso"edience thereto shall "e punished in accordance with the applica"le law or Rule. (Sec. 9% Rule &1+

?uashin$ a su"poena.
he court #ay -uash a su"poena duces tecu# upon #otion pro#ptly #ade and% in any event% at or "efore the ti#e specified therein a. if it is unreasona"le and oppressive% or ". the relevancy of the "oo@s% docu#ents or thin$s does not appear% or c. if the person in whose "ehalf the su"poena is issued fails to advance the reasona"le cost of the production thereof. he court #ay -uash a su"poena ad testificandu# on the $round that the witness is not "ound there"y. *n either case% the su"poena #ay "e -uashed on the $round that the witness fees and @ilo#etra$e allowed "y these Rules were not tendered when the su"poena was served. (Sec. 3% Rule &1+

19ceptions.
he provisions of sections 8 and 9 of this Rule shall not apply 1. to a witness who resides #ore than one hundred (1//+ @ilo#eters fro# his residence to the place where he is to testify "y the ordinary course of travel% or &. to a detention prisoner if no per#ission of the court in which his case is pendin$ was o"tained. (Sec. 1/% Rule &1+

*ndirect conte#pt to "e punished after char$e and hearin$.
After a char$e in writin$ has "een filed% and an opportunity $iven to the respondent to co##ent thereon within such period as #ay "e fi9ed "y the court and to "e heard "y hi#self or counsel% a person $uilty of any of the followin$ acts #ay "e punished for indirect conte#pt< (f+ Cailure to o"ey a su"poena duly servedK :ut nothin$ in this section shall "e so construed as to prevent the court fro# issuin$ process to "rin$ the respondent into court% or fro# holdin$ hi# in custody pendin$ such proceedin$s. (Sec. 0 (f+% Rule 71+

Su"poena for depositions.
Proo& o& ser#ice o& notice to t (e deposition % as provided in sections 1; and &; of Rule &0% shall constitute sufficient authori8ation for the issuance of su"poenas for the persons na#ed in said notice "y the cler@ of the court of the place in which the deposition is to "e ta@en. he cler@ shall not% however% issue a su"poena duces tecu# to any such person without an order of the court. (Sec. ;% Rule &1+

Re$ ! do Notes. 6hat is the #i tory ri$+t o& "itnesses> *t is the ri$ht of witnesses N= to "e co#pelled to attend upon a su"poena "y reason of the distance fro# the residence of the witness to the place where he is to testify.

Service.

Service of a su"poena shall "e #ade in the sa#e #anner as person ! or su%stituted ser#ice o& su''ons. he ori$inal shall "e e9hi"ited and a copy thereof delivered to the person on who# it is served% tenderin$ to

9" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

here is no distinction under the present rules as to whether or not the witness resides in the sa#e province as the place where he is re-uired to $o and testify or produce docu#ents. 6hat is now deter#inative is that the distance "etween "oth places does not e9ceed 1// @ilo#eters "y the ordinary course of travel% $enerally "y overland transportation. *s the viatory ri$ht of witness availa"le in all actions> No% the ri$ht is availa"le only in civil cases and not in cri#inal cases. (People v. 4onte!o% 01 =ct. 19.7+ 9 utist Notes.

,istin$uish a su"poena duces tecu# (Rule &1+ and #otion for production and inspection of docu#ents or thin$s (Rule &7+. Su"poena ,uces ecu# 4otion for production and inspection of ,ocu#ent or thin$s 'ood cause #ust "e shown 'rounds -uashin$ different su"poena. for are with

Cause 'rounds -uashin$ for

o who# directed Sanctions for failure to o"ey

No showin$ of $ood cause necessary here are listed $rounds for -uashin$ a su"poena duces tecu# 4ay "e directed to a non2party to the liti$ation *f without ade-uate cause% #ay constitute conte#pt of court

Can only "e directed a$ainst a party. =ther sanctions #ay "e i#posed other than conte#pt.

99 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

d. 4odes of ,iscovery Ad'inistr ti#e C tter No. 62A/A6D SC .Ju!y /2, 16630 Preliminar" Matters' Re$ ! do Notes= 6hat are the principal "enefits desira"le fro# the availa"ility and operation of a li"eral discovery procedure> 1. it is of $reat assistance in ascertainin$ the truth and preventin$ per!ury "ecause the witness is e9a#ined while his #e#ory is still fresh% he is $enerally not coached% he cannot at a later date contradict his deposition% and his deposition is preserved in case he "eco#es unavaila"le. &. it is an effective #eans of detectin$ and e9posin$ fa@e% fraudulent and sha# clai#s and defenses. 0. it #a@es availa"le in a si#ple convenient and often ine9pensive way facts which otherwise could not have "een proved later. 3. it educates the parties in advance of trial on the real values of their clai#s and defenses% there"y encoura$in$ settle#ents out of court. ;. it e9pedites the disposal of liti$ations% saves the ti#e of the court and helps clear the doc@ets. .. it safe$uards a$ainst surprise at the trial% prevents delays% si#plifies the issues% and there"y e9pedites the trial 7. it facilitates "oth the preparation and trial of cases. (Cortune Corporation v. CA% 19 January 1993+ 9 utist Notes.

&. to anticipate the opponentAs actions and eli#inate the suspense. 0. to $et evidence to support oneAs case. 6hat #atters are not su"!ect to discovery> 1. privile$ed #atters li@e the wor@2product rule% those su"!ect to ri$ht to privacy% and trade secrets. &. i#peachin$ evidence ( his is a $ray area as co##entators are not in a$ree#ent. he ar$u#ent is that if the intention is shown in advance D to discover i#peachin$ evidence D then it is useless+ 6hat is the wor@2product rule> he wor@2product rule was enunciated in the case of 7ic@#an v. aylor. *n that case% there was a "ar$e that san@ and several crew#e#"ers perished. he owner of the "ar$e hired a lawyer% Corten"ou$h. Corten"ou$h interviewed the survivin$ crew #e#"ers. 6hen the heirs of the crew#e#"ers filed an action a$ainst the "ar$e owners% their lawyers as@ed Corten"ou$h to produce all his N= 1S AN, *N 1R)*16S. Corten"ou$h naturally refused. he BS SC said that the notes% #e#oranda% i#pressions of the lawyers% etc.% in preparin$ the case are N= ,*SC=)1RA:51. Such are not discovera"le not "ecause of the attorney2client privile$e "ut "ecause the so called word product rule. *f such are discovera"le% then the le$al profession would collapse. 5awyers would not "e dili$ent since their very own efforts could "e used a$ainst the#. )eposition Pending Action (Rule &0+ ,epositions pendin$ action% when #ay "e ta@en.
:y leave of court after !urisdiction has "een o"tained over any defendant or over property which is the su"!ect of the action% or without such leave after an answer has "een served% the testi'ony o& ny person, "+et+er p rty or not% #ay "e ta@en% at the instance of any party% "y deposition upon 1. oral e9a#ination or &. written interro$atories. he attendance of witnesses #ay "e co#pelled "y the use of a su"poena as provided in Rule &1. ,epositions shall "e ta@en only in accordance with these Rules. he deposition of a person confined in prison #ay "e ta@en only "y leave of court on such ter#s as the court prescri"es. (Sec. 1% Rule &0+

6hat is the purpose of discovery> he purpose of discovery is to o"tain the fullest @nowled$e of the issues and fact. =ri$inally% discovery was intended as a device for e9peditin$ the case. :y "ein$ a"le to o"tain #ore @nowled$e as to the issues and facts% this would ideally save on ti#e. As recently as Nove#"er 1991% the Phil. SC o"served what it ter#ed the Hunreasoned and unreasona"le disinclinationN to resort to discovery Hwhich could% as the e9perience of other !urisdictions convincin$ly de#onstrates effectively shorten the period of liti$ation and speed up ad!udication.N (Repu"lic v. Sandi$an"ayan% &/3 SCRA &1&+ 7owever% accordin$ to Prof. :autista% discovery does not always #a@e the case shorterK contrary to e9pectations that it will e9pedite the liti$ation% it has protracted it "ecause this is an additional "attle$roundV source of s@ir#ish. 6hat are the $oals of discovery> 1. to find out how stron$ the case is.

Scope of e9a#ination.

Bnless otherwise ordered "y the court as provided "y section 1. or 18 of this Rule% the deponent #ay "e e9a#ined re$ardin$ ny ' tter, not pri#i!e$ed, "+ic+ is re!e# nt to t+e su%*ect o& t+e pendin$ ction, "+et+er re! tin$ to t+e c! i' or de&ense o& ny ot+er p rty% includin$ the e9istence% description% nature% custody% condition% and location of any "oo@s% docu#ents% or other tan$i"le thin$s and the identity and location of persons havin$ @nowled$e of relevant facts. (Sec. &% Rule &0+

19a#ination and cross2e9a#ination.
100 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 19a#ination and cross2e9a#ination of deponents #ay proceed as per#itted at the trial under sections 0 to 18 of Rule 10&. (Sec. 0% Rule &0+

JONATHAN PAMPOLINA he introduction in evidence of the deposition or any part thereof for any purpose other than that of contradictin$ or i#peachin$ the deponent #a@es the deponent the witness of the party introducin$ the deposition% "ut this shall not apply to the use "y an adverse party of a deposition as descri"ed in para$raph ("+ of section 3 of this Rule. (Sec. 8% Rule &0+

Bse of depositions.

At the trial or upon the hearin$ of a #otion or an interlocutory proceedin$% any part or all of a deposition% so far as ad#issi"le under the rules of evidence% #ay "e used $ inst ny p rty "+o " s present or represented t t+e t (in$ o& t+e deposition or "+o + d due notice t+ereo&% in accordance with any one of the followin$ provisions< (a+ Any deposition #ay "e used "y any party for the purpose of contradictin$ or i#peachin$ the testi#ony of deponent as a witnessK ("+ he deposition of a party or of any one who at the ti#e of ta@in$ the deposition was an officer% director% or #ana$in$ a$ent of a pu"lic or private corporation% partnership% or association which is a party #ay "e used "y an adverse party for any purposeK (c+ he deposition of a witness% whether or not a party% #ay "e used "y any party for any purpose if the court finds< (1+ that the witness is deadK or (&+ that the witness resides at a distance #ore than one hundred (1//+ @ilo#eters fro# the place of trial or hearin$% or is out of the Philippines% unless it appears that his a"sence was procured "y the party offerin$ the depositionK or (0+ that the witness is una"le to attend or testify "ecause of a$e% sic@ness% infir#ity% or i#prison#entK or (3+ that the party offerin$ the deposition has "een una"le to procure the attendance of the witness "y su"poenaK or (;+ upon application and notice% that such e9ceptional circu#stances e9ist as to #a@e it desira"le% in the interest of !ustice and with due re$ard to the i#portance of presentin$ the testi#ony of witnesses orally in open court% to allow the deposition to "e usedK and (d+ *f only p rt o& deposition is offered in evidence "y a party% the adverse party #ay re-uire hi# to introduce all of it% which is relevant to the part introduced% and any party #ay introduce any other parts. (Sec. 3% Rule &0+

Re"uttin$ deposition.
At the trial or hearin$% any party #ay re"ut any relevant evidence contained in a deposition whether introduced "y hi# or "y any other party. (Sec. 9% Rule &0+

Persons "efore who# depositions #ay "e ta@en "it+in t+e P+i!ippines.
6ithin the Philippines% depositions #ay "e ta@en "efore any 1. !ud$e% &. notary pu"lic% or 0. the person referred to in section 13 hereof. (Sec. 1/% Rule &0+

Persons "efore who# depositions #ay "e ta@en in &orei$n countries.
*n a forei$n state or country% depositions #ay "e ta@en (a+ on notice "efore a secretary of e#"assy or le$ation% consul $eneral% consul% vice2consul% or consular a$ent of the Repu"lic of the PhilippinesK ("+ "efore such person or officer as #ay "e appointed "y co##ission or under letters ro$atoryK or (c+ the person referred to in section 13 hereof. (Sec. 11% Rule &0+

Co##ission or letters ro$atory.
A co##ission or letters ro$atory shall "e issued only when necessary or convenient% on application and notice% and on such ter#s and with such direction as are !ust and appropriate. =fficers #ay "e desi$nated in notices or co##issions either "y na#e or descriptive title and letters ro$atory #ay "e addressed to the appropriate !udicial authority in the forei$n country. (Sec. 1&% Rule &0+

1ffect of su"stitution of parties.

Su"stitution of parties does not affect the ri$ht to use depositions previously ta@enK and% when an action has "een dis#issed and another action involvin$ the sa#e su"!ect is afterward "rou$ht "etween the sa#e parties or their representatives or successors in interest% all depositions lawfully ta@en and duly filed in the for#er action #ay "e used in the latter as if ori$inally ta@en therefor. (Sec. ;% Rule &0+

,is-ualification "y interest.
No deposition shall "e ta@en "efore a. a person who is a relative within the si9th de$ree of consan$uinity or affinity% or ". e#ployee or counsel of any of the partiesK or c. a person who is a relative within the sa#e de$ree% or e#ployee of such counselK or d. a person who is financially interested in the action. (Sec. 10% Rule &0+

="!ections to ad#issi"ility.

Su"!ect to the provisions of section &9 of this Rule% o"!ection #ay "e #ade at the tri ! or +e rin$ to recei#in$ in e#idence ny deposition or p rt t+ereo& for any reason which would re-uire the e9clusion of the evidence if the witness were then present and testifyin$. (Sec. .% Rule &0+

Stipulations re$ardin$ ta@in$ of depositions.
*f the parties so stipulate in writin$% depositions #ay "e ta@en "efore any person authori8ed to ad#inister oaths% at any ti#e or place% in accordance with these Rules% and when so ta@en #ay "e used li@e other depositions. (Sec. 13% Rule &0+

1ffect of t (in$ depositions.

A party shall not "e dee#ed to #a@e a person his own witness for any purpose "y ta@in$ his deposition. (Sec. 7% Rule &0+

,eposition upon oral e9a#inationK noticeK ti#e and place.
A party desirin$ to ta@e the deposition of any person upon oral e9a#ination shall $ive reasona"le notice in writin$ to every other party to the action. he notice shall state

1ffect of usin$ depositions.

101 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 the ti#e and place for ta@in$ the deposition and o the na#e and address of each person to "e e9a#ined% if @nown% o and if the na#e is not @nown% o a $eneral description sufficient to identify hi# or o the particular class or $roup to which he "elon$s. =n #otion of any party upon who# the notice is served% the court #ay for cause shown enlar$e or shorten the ti#e. (Sec. 1;% Rule &0+ o

JONATHAN PAMPOLINA the court in which the action is pendin$ or the Re$ional rial Court of the place where the deposition is "ein$ ta@en #ay order the officer conductin$ the e9a#ination to ce se &ort+"it+ &ro' t (in$ t+e deposition % or #ay !i'it t+e scope nd ' nner o& t+e t (in$ o& t+e deposition % as provided in section 1. of this Rule. *f the order #ade ter#inates the e9a#ination% it shall "e resu#ed thereafter only upon the order of the court in which the action is pendin$. Bpon de#and of the o"!ectin$ party or deponent% the ta@in$ of the deposition shall "e suspended for the ti#e necessary to #a@e a notice for an order. *n $rantin$ or refusin$ such order% the court #ay i#pose upon either party or upon the witness the re-uire#ent to pay such costs or e9penses as the court #ay dee# reasona"le. (Sec. 18% Rule &0+

Orders &or deponents.

t+e

protection

o&

p rties

nd

After notice is served for ta@in$ a deposition "y oral e9a#ination% upon #otion seasona"ly #ade "y any party or "y the person to "e e9a#ined and for $ood cause shown% the court in which the action is pendin$ #ay #a@e an order a+ that the deposition shall not %e t (en% or "+ that it #ay "e ta@en only t so'e desi$n ted p! ce ot+er t+ n t+ t st ted in t+e notice% or c+ that it #ay "e ta@en only on "ritten interro$ tories% or d+ that cert in ' tters s+ !! not %e in-uired into% or e+ that the scope of the e9a#ination shall "e +e!d "it+ no one present e9cept the parties to the action and their officers or counsel% or f+ that after "ein$ sealed the deposition shall "e opened on!y %y order o& t+e court% or $+ that secret processes% develop#ents% or research need not %e disc!osed% or h+ that the parties shall si'u!t neous!y &i!e speci&ied docu'ents or in&or' tion enc!osed in se !ed en#e!opes to %e opened s directed %y t+e courtK i+ or the court #ay #a@e ny ot+er order "+ic+ *ustice re-uires to protect the party or witness fro# annoyance% e#"arrass#ent% or oppression. (Sec. 1.% Rule &0+

Su"#ission to witnessK chan$esK si$nin$.

Record of e9a#inationK oathK o"!ections.

he officer "efore who# the deposition is to "e ta@en shall put the witness on oath and shall personally% or "y so#e one actin$ under his direction and in his presence% record the testi#ony of the witness. he testi#ony shall "e ta@en steno$raphically unless the parties a$ree otherwise. All o"!ections #ade at the ti#e of the e9a#ination to the -ualifications of the officer ta@in$ the deposition% or to the #anner of ta@in$ it% or to the evidence presented% or to the conduct of any party% and any other o%*ection to t+e proceedin$s, s+ !! %e noted "y the officer upon the deposition. 1vidence o"!ected to shall "e ta@en su"!ect to the o"!ections. *n lieu of participatin$ in the oral e9a#ination% parties served with notice of ta@in$ a deposition #ay trans#it written interro$atories to the officers% who shall propound the# to the witness and record the answers ver"ati#. (Sec. 17% Rule &0+

6hen the testi#ony is fully transcri"ed% the deposition 1. shall "e su%'itted to t+e "itness &or e) 'in tion and &. shall "e re d to or %y +i'% BN51SS such e9a#ination and readin$ are waived "y the witness and "y the parties. Any chan$es in for# or su"stance which the witness desires to #a@e shall "e entered upon the deposition "y the officer with a state#ent of the reasons $iven "y the witness for #a@in$ the#. he deposition s+ !! t+en %e si$ned %y t+e "itness% unless the parties "y stipulation waive the si$nin$ or the witness is ill or cannot "e found or refuses to si$n. *f the deposition is not si$ned %y t+e "itness % the officer shall si$n it and state on the record the fact of the waiver or of the illness or a"sence of the witness or the fact of the refusal to si$n to$ether with the reason $iven therefor% if any% and the deposition #ay then "e used as fully as thou$h si$ned% unless on a #otion to suppress under section &9 (f+ of this Rule% the court holds that the reasons $iven for the refusal to si$n re-uire re!ection of the deposition in whole or in part. (Sec. 19% Rule &0+

Certification and filin$ "y officer.
he officer shall certify on the deposition that the witness was duly sworn to "y hi# and that the deposition is a true record of the testi#ony $iven "y the witness. 7e shall then secure!y se ! t+e deposition in an envelope indorsed with the title of the action and #ar@ed I,eposition of (here insert the na#e of witness+I and shall pro#ptly file it with the court in which the action is pendin$ or send it "y re$istered #ail to the cler@ thereof for filin$. (Sec. &/% Rule &0+

Notice of filin$.

he officer ta@in$ the deposition shall $ive pro#pt notice of its filin$ to all the parties. (Sec. &1% Rule &0+

Curnishin$ copies.

4otion to ter#inate or li#it e9a#ination.

At any ti#e durin$ the ta@in$ of the deposition% on #otion or petition of any party or of the deponent and upon a showin$ that a. the e9a#ination is "ein$ conducted in "ad faith or ". in such #anner as unreasona"ly to annoy% e#"arrass% or oppress the deponent or party%

Bpon pay#ent of reasona"le char$es therefor% the officer shall furnish a copy of the deposition to any party or to the deponent. (Sec. &&% Rule &0+

F i!ure to

ttend o& p rty $i#in$ notice.

*f the party $ivin$ the notice of the ta@in$ of a deposition fails to attend and proceed therewith and another attends in person or "y counsel pursuant to the notice% the court #ay order the party $ivin$ the notice to

102 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 pay such other party the a#ount of the reasona"le e9penses incurred "y hi# and his counsel in so attendin$% includin$ reasona"le attorneyTs fees. (Sec. &0% Rule &0+

JONATHAN PAMPOLINA All errors and irre$ularities in the notice for ta@in$ a deposition are waived unless written o"!ection is pro#ptly served upon the party $ivin$ the notice.

("+ As to disFuali!ication o! o!!icer.

F i!ure o& su%poen .

p rty

$i#in$

notice

to

ser#e

*f the party $ivin$ the notice of the ta@in$ of a deposition of a witness fails to serve a su"poena upon hi# and the witness "ecause of such failure does not attend% and if another party attends in person or "y counsel "ecause he e9pects the deposition of that witness to "e ta@en% the court #ay order the party $ivin$ the notice to pay to such other party the a#ount of the reasona"le e9penses incurred "y hi# and his counsel in so attendin$% includin$ reasona"le attorneyTs fees. (Sec. &3% Rule &0+

="!ection to ta@in$ a deposition "ecause of dis-ualification of the officer "efore who# it is to "e ta@en is waived unless #ade "efore the ta@in$ of the deposition "e$ins or as soon thereafter as the dis-ualification "eco#es @nown or could "e discovered with reasona"le dili$ence.

(c+ As to competenc" or relevanc" o! evidence'

="!ections to the co#petency of a witness or the co#petency% relevancy% or #ateriality of testi#ony are not " i#ed "y failure to #a@e the# "efore or durin$ the ta@in$ of the deposition% unless the $round of the o"!ection is one which #i$ht have "een o"viated or re#oved if presented at that ti#e.

,eposition upon written interro$atoriesK service of notice and of interro$atories.
A party desirin$ to ta@e the deposition of any person upon written interro$atories shall serve the# upon every other party with a notice statin$ the na#e and address of the person who is to answer the# and the na#e or descriptive title and address of the officer "efore who# the deposition is to "e ta@en. 6ithin ten (1/+ days thereafter% a party so served #ay serve crossAinterro$ tories upon the party proposin$ to ta@e the deposition. 6ithin five (;+ days thereafter% the latter #ay serve reAdirect interro$ tories upon a party who has served cross2 interro$atories. 6ithin three (0+ days after "ein$ served with re2 direct interro$atories% a party #ay serve recrossA interro$ tories upon the party proposin$ to ta@e the deposition. (Sec. &;% Rule &0+

(d+ As to oral examination and other particulars'

1rrors and irre$ularities occurrin$ at the oral e9a#ination in the #anner of ta@in$ the deposition% in the for# of the -uestions or answers% in the oath or affir#ation% or in the conduct of the parties and errors of any @ind which #i$ht "e o"viated% re#oved% or cured if pro#ptly prosecuted% are waived unless reasona"le o"!ection thereto is #ade at the ta@in$ of the deposition.

(e+ As to !orm o! %ritten interrogatories'

="!ections to the for# of written interro$atories su"#itted under sections &; and &. of this Rule are waived unless served in writin$ upon the party propoundin$ the# within the ti#e allowed for servin$ succeedin$ cross or other interro$atories and within three (0+ days after service of the last interro$atories authori8ed.

(f+ As to manner o! preparation'

=fficers to ta@e responses and prepare record.
A copy of the notice and copies of all interro$atories served shall "e delivered "y the party ta@in$ the deposition to the officer desi$nated in the notice% who shall proceed pro#ptly% in the #anner provided "y sections 17% 19 and &/ of this Rule% a. to ta@e the testi#ony of the witness in response to the interro$atories and ". to prepare% certify% and file or #ail the deposition% attachin$ thereto the copy of the notice and the interro$atories received "y hi#. (Sec. &.% Rule &0+

1rrors and irre$ularities in the #anner in which the testi#ony is transcri"ed or the deposition is prepared% si$ned% certified% sealed% indorsed% trans#itted% filed% or otherwise dealt with "y the officer under sections 17% 19% &/ and &. of this Rule are waived unless a #otion to suppress the deposition or so#e part thereof is #ade with reasona"le pro#ptness after such defect is% or with due dili$ence #i$ht have "een% ascertained.

Re$ ! do Notes= 6hat are the @inds of depositions> As to the for# of deposition% there is 1. depositions on oral e9a#ination and &. depositions upon written interro$atories. As to the purpose of the deposition% there is 1. deposition de "ene esse 2 those ta@en for purposes of a pendin$ action+ and &. depositions in perpetua# rei #e#oria# 2 those ta@en to perpetuate evidence for purposes of an anticipated action or further proceedin$s in a case on appeal+ *s leave of court necessary to ta@e a deposition> *t depends. Section 1% Rule &0 provides that a deposition #ay "e resorted to after !urisdiction has "een o"tained over ANG defendant% N= A55 defendants. 5eave of court is N= necessary to ta@e a deposition after an answer to the co#plaint has "een filed. :ut such leave is re-uired where N= answer has yet "een filed (even if !urisdiction has "een

Notice of filin$ and furnishin$ copies.
6hen a deposition upon interro$atories is filed% the officer ta@in$ it shall pro#ptly $ive notice thereof to all the parties% and #ay furnish copies to the# or to the deponent upon pay#ent of reasona"le char$es therefor. (Sec. &7% Rule &0+

=rders for the protection of parties and deponents.

After the service of the interro$atories and prior to the ta@in$ of the testi#ony of the deponent% the court in which the action is pendin$% on #otion pro#ptly #ade "y a party or a deponent% and for $ood cause shown% #ay #a@e any order specified in sections 1;% 1. and 18 of this Rule which is appropriate and !ust or an order that the deposition shall not "e ta@en "efore the officer desi$nated in the notice or that it shall not "e ta@en e9cept upon oral e9a#ination. (Sec. &8% Rule &0+

1ffects of errors and irre$ularities in depositions. (a+ As to notice'

103 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

o"tained over any defendant+% since "efore the filin$ of the answer% the disputed facts are not clear. :efore service of such answer% leave of court #ay "e $ranted "ut only in e9ception or unusual situations. (Repu"lic v. Sandi$an"ayan% 0/ 4ay &//1+ Are depositions su"stitutes for testi#ony in open court> 'enerally% depositions are not #eant to "e a su"stitute for the actual testi#ony in open court of a party or witness. he deponent #ust% as a rule "e presented for oral e9a#ination in open court at the trial. Any deposition offered to prove the facts therein at the trial of the case% in lieu of actual testi#ony of the deponent in court% #ay "e opposed and e9cluded for "ein$ 71ARSAG% e9cept in those specific instances authori8ed "y the Rile under particular conditions and for certain li#ited purposes. (,as#arinas 'ar#ents% *nc.% v. Reyes% &3 Au$ust 1990+ ,oes the introduction of the deposition "ind the party who introduces it> As a $eneral rule% yes% the introduction of the deposition "inds the part who introduces it% since he there"y #a@es the deponent his witness. 1OC1P % a. if it is introduced to i#peach or contradict the witness. ". if it is the deposition of the opposin$ party. ,ifferentiate a co##ission and letters ro$atory. Co##ission 5etters Ro$atory. Addressed Any authority in a A !udicial to who> forei$n country authority in the authori8ed forei$n country. therein to ta@e down depositions. Rules that Su"!ect to the Su"!ect to the $overn> rules laid down rules laid down "y the C=BR "y such C=R1*'N *SSB*N' 71 JB,*C*A5 C=44*SS*=N AB 7=R* G 6hen are letters ro$atory resorted to> 5etters ro$atory are resorted to when there is a difficulty or i#possi"ility of o"tainin$ the deposition "y co##ission. 5etters ro$atory #ay "e applied for and issued only AC 1R a co##ission has "een returned une9ecuted. (,as#arinas 'ar#ents% *nc. v. Reyes+ 9 utist Notes=

presides over the proceedin$ "ut with li#ited authority to rule on the ad#issi"ility of evidence. he deposition #ay or #ay not "e introduced in court as evidence since it #ay have "een resorted to for purely discovery purposes. he deposition #ay "e ta@en pendin$ action or even "efore any action is filed in court or pendin$ appeal. 6hy are depositions ta@en> ,eposition are ta@en to preserve testi#ony D to avoid flip2floppin$. Counsel should try to ta@e the deposition ri$ht away when the i#pressions are still fresh. 6hat are the @inds of written interro$atories> 1. ,irect &. Cross. (1/ days fro# notice of interro$atories+ 0. Re2direct. (; days fro# notice of cross+ 3. Re2cross. (0 days fro# notice of re2direct+ Parties #ay ta@e the deposition of ANG P1RS=N. 6hat is the difference if the deponent is a party to the action or a non2party> he difference lies in their use. *f the deposition is that of a PAR G to the action% the deposition #ay "e used for any purpose. Any purpose #eans to use as su"stantive evidence D to prove the truth. Cor e9a#ple% the deposition of Aton$ An$ can show that his coo@ #a@es P&%///. *f the deposition is that of a N=N PAR G% the deposition #ay "e used for i#peach#ent purposes. Cor e9a#ple% it #ay "e used to prove a prior inconsistent state#ent. 7owever% under Sec. 3(c+% Rule &0% the deposition of a N=N2PAR G #ay "e used for "oth i#peach#ent or evidentiary purposes if it falls under any of the ; circu#stances. 7earsay is an out2of2court state#ent offered for the truth of the #atter asserted. ,o depositions fall under the hearsay rule> ,epositions are e9ceptions to the hearsay rule. ,epositions are really hearsay in the cases enu#erated in Sec. 3(c+% Rule &0. :ut this is "alanced "y oath ta@en and the cross e9a#ination. Can the deponent officer rule on the o"!ections to the deposition> he person "efore who# the deposition is ta@en cannot rule on the o"!ections. 7owever% these o"!ection #ust "e #ade ri$ht away or else they are waived. A deponent refuses to answer a -uestion propounded upon oral e9a#ination. 6hat can the party proposin$ the -uestion do> he proponent has two options< a. S =P the e9a#ination% or ". C=4P51 1 the e9a#ination on other #atters.

6hat are depositions and what is their i#portance> he deposition is perhaps the #ost thorou$h and co#prehensive #ode of discovery. ,eposition2 ta@in$ is a trial li@e e9a#ination of a witness% called the deponent% "efore a deposition officer who

104 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

*n either case% the proponent #ay then ta@e the necessary steps to secure an order fro# the court co#pellin$ the deponent to answer. Suppose the deponent% in the a"ove#entioned e9a#ple% persists and still refuses to answer the -uestion even after a court order% what can "e done> he court #ay #a@e such orders as are !ust% and a#on$ others% the followin$< 1. an order that #atters re$ardin$ which the -uestions were as@ed shall "e ta@en to "e esta"lished. &. an order refusin$ to allow the diso"edient party to supportVoppose desi$nated clai#sVdefenses. 0. an order stri@in$ out pleadin$sVparts thereof% or stayin$ further proceedin$s until the order is o"eyed or dis#issin$ the action or proceedin$ or any part thereof% or renderin$ a !ud$#ent "y default a$ainst the diso"edient party. 3. an order directin$ the arrest of the party. 6hy is there a need to as@ for leave of court to ta@e depositions "efore an answer is filed> So that the court can $ive li#itin$ orders to protect the deponent as in Sections 1. and 18 of Rule &0. 6hen is the only instance where one always needs leave of court "efore ta@in$ depositions> 6here the deponent is in !ail. Can you ta@e the deposition of a person who resides within 1// @ilo#eters fro# the place of the trial> 6hat is the 1// @# li#it for> Ges% you can ta@e such deposition. he 1// @# li#it #odifies the BS1 of the deposition "ut N= the ri$ht to ta@e a deposition. *f the deponent resides "eyond the 1// @# li#it% his deposition can "e used as a su"stantive evidence in court as an e9ception to the hearsay rule. ,o you #a@e the deponent your witness "y ta@in$ his deposition> *s deter#inin$ whether the deponent is you witness or not actually i#portant> No% the deponent does not auto#atically "eco#e your witness "y #erely ta@in$ his deposition. his is si$nificant "ecause when the deponent is not your witness% the four @inds of i#peachin$ evidence (contradictory evidence% prior inconsistent state#ents% reputation evidence and prior conviction+ can "e used a$ainst hi#. *f the deponent is you witness% reputation evidence is not allowed. A#en Notes . 11 J n 640

6hat is the ri$ht to su"poena> *t is the ri$ht to $et evidence fro# the person% whether testi#onial or docu#entary. *n a case in ?C R C% A sues :. :ut : is in 5A. A applies for a su"poena in 5A. *s the su"poena valid> No. Su"poena should "e issued "y ?C R C. he 5A court does not issue the su"poena. Can the 4 C issue a su"poena% even if it is a lower court> Ges. he su"poena issued "y a court is applica"le only within the !urisdiction of the issuin$ court. rue or Calse. rue. he power of Philippine process will not $o "eyond Philippine soil. Su"poena and other processes will not wor@ outside of the Philippines. 6ho can ta@e depositions in a forei$n country> 1. a#"assador% consul &. co##ission or letters ro$atory 0. person stipulated "y writin$% who is authori8ed to ad#inister an oath 6hat is the difference "etween a co##ission and letters ro$atory> A co##ission is addressed to a person in the forei$n country appointed "y the court and the deposition is $overned "y Philippine Rules of Court. A letter ro$atory is a re-uest fro# the local courts addressed to another forei$n court to ta@e deposition of the person% in which case the rules of deposition ta@in$ of the forei$n court shall $overn. 6ho can issue su"poena for deposition ta@in$> 1. Court where witness is re-uired to attend. &. Court where deposition is to "e ta@en. 0. =fficer or "ody authori8ed "y law. 3. Any Justice of the SC or CA. O files an action a$ainst G in ?C R C. =ne of the witnesses% L% resides in ,avao. Can the ,avao court issue a su"poena> Ges. Bpon #otion of O to the ?C R C court for deposition% the ?C R C can as@ the ,avao court to ta@e the deposition. he ,avao court then issues a su"poena% to order deponent to appear "efore it for deposition ta@in$. ,epositions are hearsay evidence and thus% inad#issi"le. rue or false. rue. ,epositions are only alternative #odes. Bnless the conditions under Rule &0% Section 3 are present% depositions are inad#issi"le evidence. 6hat are the three functions of a su"poena> he purpose of the su"poena is li#ited only to the followin$ instances. 1. to order person to testify

Can Philippine courts su"poena any"ody outside the Philippines> 'enerally% they cannot% unless the su"poena is for deposition under Rule &0% Section 3.

105 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

&. to order the production of docu#ents 0. to call person for deposition. he su"poena has no other purpose than that #entioned. 6hat are the $rounds for -uashin$ a su"poena duces tecu#> 1. Su"poena is unreasona"le and oppressive &. he "oo@s% docu#ents or thin$s are irrelevant to the su"!ect #atter of the suit. 0. here is a failure to advance reasona"le costs. 6hat are the $rounds for -uashin$ a su"poena ad testificandu#> 1. 6itness is not "ound "y the su"poena. &. he witness fees and @ilo#etra$e was not paid. 6hat are the si9 instances when depositions can "e ad#itted as evidence in court% without presentin$ the deponent in court> 1. ,eponent is dead. &. ,eponent resides #ore than 1// @ilo#eters fro# the court. 0. ,eponent is outside of the country. 3. ,eponent cannot appear "efore the court due to a$e% sic@ness% infir#ity or i#prison#ent. ;. he presence of the deponent has not "een secured even "y a su"poena issued "y the court. .. =ther such e9ceptional circu#stances. As re$ards the deponent% what is pri#ary evidence re-uired in court> he pri#ary evidence ad#issi"le in court with re$ard a deponent is his actual presence and testi#ony in open court. *f he is not a"le to appear in court "ecause of the reasons enu#erated under the Rules% the deponentAs deposition can "e presented in court as evidence. 6ho chooses the #ode of deposition whether throu$h written interro$atories or oral e9a#ination> 1. the party who #oves for the deposition. &. "y the court% when !ustice re-uires. Can you stipulate where deposition ta@in$ shall ta@e place> Ges% unless it is clearly oppressive as adduced "y the court. 6ho should "e $iven notice of deposition> All parties should "e $iven notice of the deposition ta@in$. he deposition can "e used a$ainst all parties who received notice of the deposition. 6hat is the ri$ht of the parties $iven notice of the deposition ta@in$> Parties have a ri$ht to attend and even send a representative to the deposition. hey can as@ -uestions or send written interro$atories.

6hat is the order of deposition> 1. ,eponent swears under oath. &. he flow of the presentation of witness under Rule 10&% Sections 0218 is% then% followed. (,irect% cross% re2direct and re2cross+ 0. he record of the deposition shall then "e written or transcri"ed. 3. he deponent will then e9a#ine the deposition and can as@ or propose chan$es to his deposition. ;. After% the deponent #ust si$n the deposition. *f the deponent refuses to si$n or cannot si$n due to waiver% illness% or is su"se-uently a"sent% deposition officer should note down such circu#stance. 7ow is the deposition to "e recoded> he proceedin$s of the deposition shall "e recorded throu$h a steno$rapher or "y different #ode ordered "y the court. S 4aAa# says the deposition officer is li@e a SP=N'1 22 he #erely a"sor"s everythin$. 6hat is the #ore e9pensive #ode of deposition ta@in$> 4aAa# says deposition ta@in$ throu$h written interro$atories is a #ore e9pensive #ode of discovery "ecause of the a#ount of copies you have to produce for all parties. 6hat is the su"!ect #atter of deposition> 1. #atter related to the clai# or action &. only relevant #atters 0. #atters that are not privile$ed. A#en Notes .1E J n 640

4ovin$ for the deposition of a person% #a@es the deponent the #ovin$ partyAs witness. rue or Calse. Calse. 4erely ta@in$ depositions does not #ean that the deponent is a witness of the person who #oved for the deposition. he deponent does not necessarily even "eco#e a witness in the case. As a follow2up% usin$ the deposition of the person in court #a@es the deponent your witness. rue or Calse. rue. he person who uses or su"#its the deposition as evidence in open court #a@es the deponent his witness% 1OC1P when the deposition is used to contradict the deponent2witness or when it is deposition of the party hi#self "ein$ used "y the adverse party. 7ow can the deposition "e used to i#peach the deponent witness> he deposition can "e used as i#peachin$ evidence under Rule 10&% Section 11 in the followin$ #anner< a. as contradictory evidence ". as evidence that the deponentAs reputation for truth% honesty and inte$rity is "ad.

10 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

c. as evidence of prior inconsistent state#ents (layin$ the predicate+ 6hat are the $rounds for -uestionin$ the deposition and when is the proper ti#e for raisin$ such -uestions> :1C=R1 deposition 2 lac@ of notice to parties 2 deponent officer is dis-ualified 2 lac@ of relevance% #ateriality and co#petence of the deposition to the action ,BR*N' deposition 2 deponent officer is dis-ualified 2 error in the #anner of ta@in$ the deposition 2 error in the for# of the deposition AC 1R deposition 2 #anner of preparin$ the deposition

10! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

)epositions -e!ore Action and Pending Appeal (Rule &3+ ,epositions "efore actionK petition.
A person who desires to perpetu te +is o"n testi'ony or t+ t o& not+er person re$ rdin$ ny ' tter t+ t ' y %e co$niK %!e in ny court o& t+e P+i!ippines% #ay file a verified petition in the court of the place of the residence of any e9pected adverse party. (Sec. 1% Rule &3+

,epositions pendin$ appeal.

Contents of petition.
he petition shall "e entitled in the na#e of the petitioner and shall show< (a+ that the petitioner e9pects to "e a party to an action in a court of the Philippines "ut is presently una"le to "rin$ it or cause it to "e "rou$htK ("+ the su"!ect #atter of the e9pected action and his interest thereinK (c+ the facts which he desires to esta"lish "y the proposed testi#ony and his reasons for desirin$ to perpetuate itK (d+ the na#es or a description of the persons he e9pects will "e adverse parties and their addresses so far as @nownK and (e+ the na#es and addresses of the persons to "e e9a#ined and the su"stance of the testi#ony which he e9pects to elicit fro# each% and shall as@ for an order authori8in$ the petitioner to ta@e the depositions of the persons to "e e9a#ined na#ed in the petition for the purpose of perpetuatin$ their testi#ony. (Sec. &% Rule &3+

(a+ *f an appeal has "een ta@en fro# a !ud$#ent of a court% includin$ the Court of Appeals in proper cases% or ("+ "efore the ta@in$ of an appeal if the ti#e therefor has not e9pired% the court in which the !ud$#ent was rendered #ay allow the ta@in$ of depositions of witnesses to perpetuate their testi#ony for use in the event of further proceedin$s in the said court. *n such case the party who desires to perpetuate the testi#ony #ay #a@e a #otion in the said court for leave to ta@e the depositions% upon the sa#e notice and service thereof as if the action was pendin$ therein. he #otion shall state (a+ the na#es and addresses of the persons to "e e9a#ined and the su"stance of the testi#ony which he e9pects to elicit fro# eachK and ("+ the reason for perpetuatin$ their testi#ony. *f the court finds that the perpetuation of the testi#ony is proper to avoid a failure or delay of !ustice% it #ay #a@e an order allowin$ the depositions to "e ta@en% and thereupon the depositions #ay "e ta@en and used in the sa#e #anner and under the sa#e conditions as are prescri"ed in these Rules for depositions ta@en in pendin$ actions. (Sec. 7% Rule &3+

Re$ ! do Notes= 6hat is the purpose of ta@in$ depositions "efore an action or pendin$ appeal> he purpose is to perpetuate the testi#ony of witnesses for pro"a"le use in a future case or in the event of further proceedin$s in the sa#e case. (,eposition in perpetua# rei #e#oria#+ 9 utist Notes=

Notice and service.

he petitioner shall serve a notice upon each person na#ed in the petition as an e9pected adverse party% to$ether with a copy of the petition% statin$ that the petitioner will apply to the court% at a ti#e and place na#ed therein% for the order descri"ed in the petition. At !e st t"enty .160 d ys %e&ore t+e d te o& t+e +e rin$% the court shall cause notice thereof to "e served on the parties and prospective deponents in the #anner provided for service of su##ons. (Sec. 0% Rule &3+

=rder and e9a#ination.
*f the court is satisfied that the perpetuation of the testi#ony #ay prevent a failure or delay of !ustice% it shall #a@e an order desi$natin$ or descri"in$ the persons whose deposition #ay "e ta@en and specifyin$ the su"!ect #atter of the e9a#ination and whether the depositions shall "e ta@en upon oral e9a#ination or written interro$atories. he depositions #ay then "e ta@en in accordance with Rule &0 "efore the hearin$. (Sec. 3% Rule &3+

6hy do you want to ta@e a deposition "efore an action or pendin$ appeal> o perpetuate his testi#ony in case he #i$ht die or to pin hi# down and i#peach hi# with prior inconsistent state#ents. As su"stantive evidence% to prove the truth li@e reported testi#ony which is an e9ception to the hearsay rule.

Reference to court.
Cor the purpose of applyin$ Rule &0 to depositions for perpetuatin$ testi#ony% each reference therein to the court in which the action is pendin$ shall "e dee#ed to refer to the court in which the petition for such deposition was filed. (Sec. ;% Rule &3+

Bse of deposition.

*f a deposition to perpetuate testi#ony is ta@en under this Rule% or if% althou$h not so ta@en% it would "e ad#issi"le in evidence% it #ay "e used in any action involvin$ the sa#e su"!ect #atter su"se-uently "rou$ht in accordance with the provisions of sections 3 and ; of Rule &0. (Sec. .% Rule &3+

10" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

nterrogatories to Parties (Rule &;+ *nterro$atories to partiesK service thereof.
Bnder the sa#e conditions specified in section 1 of Rule &0% any party desirin$ to elicit #aterial and relevant facts fro# any adverse parties shall file and serve upon the latter "ritten interro$ tories to "e answered "y the party served or% if the party served is a pu"lic or private corporation or a partnership or association% "y any officer thereof co#petent to testify in its "ehalf. (Sec. 1% Rule &;+

Answer to interro$atories.
he interro$atories shall "e answered fully in writin$ and shall "e si$ned and sworn to "y the person #a@in$ the#. he party upon who# the interro$atories have "een served shall file and serve a copy of the answers on the party su"#ittin$ the interro$atories within fifteen (1;+ days after service thereof% unless the court% on #otion and for $ood cause shown% e9tends or shortens the ti#e. (Sec. &% Rule &;+

oral e9a#ination si#ilar to that sou$ht had "een o"tained "y answers to interro$atories does not "an an e9a#ination "efore trial% and is not a valid o"!ection to the ta@in$ of a deposition in $ood faith and there "ein$ no duplication and @nowled$e "y the petitioner of the facts concernin$ which the proposed deponent is to "e e9a#ined does not !ustify refusal of such e9a#ination. he various #odes of discovery under the Rules are clearly intended to "e cu#ulative and not alternative or #utually e9clusive. (Cortune Corp% v. CA% 19 January 1993+ 6hat is the !ustification for not co#pellin$ testi#ony or deposition pendin$ appeal of a party who un!ustifia"ly refuses to elicit facts #aterial and relevant to his case "y addressin$ written interro$atories to the adverse party. he !ustification for Section .% Rule &; is that the party in need of said facts have fore$one the opportunity to in-uire into the sa#e fro# the other party throu$h #eans availa"le to hi#% he should not thereafter "e per#itted to unduly "urden the adverse party with courtroo# appearances or other cu#"erso#e processes. he sanction adopted "y the Rules is not one of co#pulsion in the sense that the party is "ein$ directly co#pelled to avail of the discovery #echanics% "ut one of ne$ation "y deprivin$ hi# of evidentiary sources which would otherwise have "een accessi"le to hi#. 6hat is the difference "etween the sanctions in Section .% Rule &; and those in Rule &9> he sanction under Section .% Rule &; is directed at a party who fails or refuses to R1S=R to discovery procedures therein. he sanction under Rule &9 is directed upon a party who refuses or fails to C=4P5G 6* 7 discovery procedures% duly availed of "y his opponent. 9 utist Notes=

="!ections to interro$atories.

="!ections to any interro$atories #ay "e presented to the court within ten (1/+ days after service thereof% with notice as in case of a #otionK and ns"ers s+ !! %e de&erred until the o"!ections are resolved% which shall "e at as early a ti#e as is practica"le. (Sec. 0% Rule &;+

Nu#"er of interro$atories.

No party #ay% without leave of court% serve #ore than one set of interro$atories to "e answered "y the sa#e party. (Sec. 3% Rule &;+

Scope and use of interro$atories.
*nterro$atories #ay relate to any #atters that can "e in-uired into under section & of Rule &0% and the answers #ay "e used for the sa#e purposes provided in section 3 of the sa#e Rule. (Sec. ;% Rule &;+

1ffect of failure to serve written interro$atories.
Bnless thereafter allowed "y the court for $ood cause shown and to prevent a failure of !ustice% a party not served with written interro$atories #ay not %e co'pe!!ed %y t+e d#erse p rty to $i#e testi'ony in open court, or to $i#e deposition pendin$ ppe ! . (Sec. .% Rule &;+

Re$ ! do Notes= *s leave of court necessary in servin$ written interro$atories> Just li@e depositions% a party #ay serve written interro$atories to the other party% without leave of court only after an answer has "een served. :efore that% leave of court #ust "e o"tained. Can a party who previously availed of written interro$atories% now% resort to a deposition on oral e9a#ination> Ges% the fact that a party had previously availed of a #ode of discovery% which is "y written interro$atories% cannot "e considered as $ood cause to prevent his resort to a deposition on oral e9a#ination "ecause the fact that infor#ation on

6hat are the li#itations of discovery "y written interro$atories to parties> his #ode of discovery has necessarily inherent li#itations as a device for developin$ facts prior to trial. 19tensive e9a#ination of the adverse party "y interro$atories #ay "e cu#"erso#e and li@ely to prove inefficient as co#pared with deposition2ta@in$. (Coca2cola v. ,i9i2Cola 5a"% 0/ C. Supp. &7;% 1909+ ,ifferentiate depositions (Rule &0+ and written interro$atories (Rule &;+ ,epositions 4ay "e addressed to a party or non2 party *nterro$atories Addressed only to the adverse party.

As to who# addressed>

109 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

Procedure.

Need for cross2 interro$atories Sanctions for refusal to answer.

4ay "e oral or written and sent to a deposition officer. Served within 1/ days fro# receipt of notice of written interro$atories. Pay e9penses of other party. Conte#pt% after there has "een a refusal of the order to answer. S here are sanctions co##on to "oth devices. (Sec. 0% Rule &9+

Served to the adverse party hi#self No cross2 interro$atories

=n who# answers are "indin$.

i#e to Answer.

Any party who was present or represented at the ta@in$ of the deposition or who had due notice thereof or who had the opportunity to serve cross2 interro$atories No fi9ed ti#e.

Jud$#ent "y default or dis#issal of the action or proceedin$ or part thereof or stri@e out all or any part of the pleadin$. Pay#ent of e9penses to the other party or conte#pt. =nly on the party served.

P:P v. CA State *nvest#ent 7ouse *nc. (S*7*+ filed a co#plaint for a su# of #oney a$ainst ProducerAs :an@ of the Philippines (P:C+ for the principal and unpaid of the ti#e deposits. P:P clai#s that it had paid the interests and that the ti#e deposits was issued to Johnny 5u and pay#ents were already #ade to 5u. S*7* served written interro$atories to P:P after S*7*As presentation of re"uttal witness. *SSB1< 6=N court was correct in allowin$ the ad#ission of written interro$atories filed "y S*7* even if the trial was a"out to "e ter#inated. 715,< Ges. Rule &0 does not provide any deadline within which #odes of discovery should "e resorted to "ecause the purpose of discovery is to discover every "it of infor#ation that #ay "e useful in the preparation for trial. he interro$atories were related to the e9istence of the lia"ility of P:P as P:P alle$es pay#ent to 5u of the o"li$ation and is connected to the factual and principal issues in dispute.

6ithin 1; days after service of interro$atories% unless e9tended or reduced "y the court.

6hat is the effect of failure to serve written interro$atories> he party not served #ay not "e co#pelled "y the adverse party to $ive testi#ony in open court or to $ive a deposition pendin$ appeal. (Sec. .% Rule &;+ Suppose a party to who Rule &; interro$atories are served% refuses to answer the set of interro$atories% what are the conse-uences> he conse-uences of refusal are< 1. order to answer &. conte#pt 0. su"!ect of discovery is dee#ed ad#itted or esta"lished. 3. party prohi"ited fro# introducin$ contradictory evidence ;. suspension of proceedin$ .. declared non2suited or in default 7. stri@in$ of pleadin$ 8. arrest 9. cost
110 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

Admission b" Adverse Part" (Rule &.+ Re-uest for ad#ission.
At any ti#e after issues have "een !oined% a party #ay file and serve upon any other party a written re-uest for the ad#ission "y the latter of the $enuineness o& ny ' teri ! nd re!e# nt docu'ent descri"ed in and e9hi"ited with the re-uest or of the truth of any #aterial and relevant #atter of fact set forth in the re-uest. Copies o& t+e docu'ents shall "e delivered with the re-uest unless copies have already "een furnished. (Sec. 1% Rule &.+

re-uestin$ partyAs pleadin$ "ut should set forth relevant evidentiary #atters of fact% or docu#ents descri"ed in and e9hi"ite with the re-uest% for the purpose of esta"lishin$ the partyAs cause of action or defense. (Po v. CA% && Au$ust 1988+ 6hen is an ad#ission "y an adverse party% as a #ode of discovery not proper> An adverse party should not "e co#pelled to ad#it< a. ad#it #atters of fact already ad#itted% in his pleadin$ and concernin$ which there is no issue% nor ". should he "e re-uired to #a@e a second denial of those #atters already denied in his answer to the co#plaint. (Po v. CA% && Au$ust 1988+ 6hat is the le$al re#edy of a plaintiff who failed to file an answer to the re-uest for ad#ission under Rule &.> 6here the plaintiff failed to answer a re-uest for ad#ission filed under Rule &.% "ased on its alle$ations in its ori$inal co#plaint% the le$al effects of its i#plied ad#ission of the facts stated in the re-uest cannot "e set aside "y its su"se-uent filin$ of an a#ended co#plaint. *t should have filed a #otion to "e relieved of the conse-uences of said i#plied ad#ission. (:ay )iew 7otel% *nc. v. Jer W Co.% 01 Au$ust 199&+ 9 utist Notes=

*#plied ad#ission.
1ach of the #atters of which an ad#ission is re-uested shall "e dee#ed ad#itted unless% within a period desi$nated in the re-uest% which shall not "e less than fifteen (1;+ days after service thereof% or within such further ti#e as the court #ay allow on #otion% the party to who# the re-uest is directed files and serves upon the party re-uestin$ the ad#ission s"orn st te'ent eit+er denyin$ speci&ic !!y t+e ' tters o& "+ic+ n d'ission is re-uested or settin$ &ort+ in det i! t+e re sons "+y +e c nnot trut+&u!!y eit+er d'it or deny t+ose ' tters. ="!ections to any re-uest for ad#ission shall "e su"#itted to the court "y the party re-uested within the period for and prior to the filin$ of his sworn state#ent as conte#plated in the precedin$ para$raph and his co#pliance therewith shall "e deferred until such o"!ections are resolved% which resolution shall "e #ade as early as practica"le. (Sec. &% Rule &.+

1ffect of ad#ission.
Any ad#ission #ade "y a party pursuant to such re-uest is a. &or t+e purpose o& t+e pendin$ ction on!y and ". s+ !! not constitute n d'ission %y +i' &or ny ot+er purpose nor ' y t+e s 'e %e used $ inst +i' in ny ot+er proceedin$. (Sec. 0% Rule &.+

6ithdrawal.

he court #ay allow the party #a@in$ an ad#ission under this Rule% whether e9press or i#plied% to "it+dr " or 'end it upon such ter#s as #ay "e !ust. (Sec. 3% Rule &.+

Notice for re-uest for ad#ission under Rule &. #ay "e served on the adverse partyAs counsel. rue or Calse. Calse. he re-uest for ad#ission #ust "e served on the party and not on the counsel. his is an e9ception to the $eneral rule that notices shall "e served upon the counsel and not upon the party. (,u-ue v. CA% & July &//&+ A#en Notes .1D J n 640

1ffect of failure to file and serve re-uest ad#ission.

for

Bnless otherwise allowed "y the court for $ood cause shown and to prevent a failure of !ustice% a party who fails to file and serve a re-uest for ad#ission on the adverse party of #aterial and relevant facts at issue which are% or ou$ht to "e% within the person ! (no"!ed$e of the latter% s+ !! not %e per'itted to present e#idence on suc+ & cts. (Sec. ;% Rule &.+

Can a re-uest for ad#ission "e covered in a written interro$atory> Ges. A written interro$atory can cover anythin$ even those outside the personal @nowled$e of the deponent. 7owever% a re-uest for ad#ission in written interro$atories is allowed% if the $enuineness of the docu#ent is within the personal @nowled$e of the deponent witness. 6hy is personal @nowled$e i#portant in this #ode of discovery> he si$nificance of havin$ personal @nowled$e as to the $enuineness of the docu#ent lies in the effects of a failure to answer. *f the adverse party refuses to answer the re-uest for ad#ission% then the $enuineness of the docu#ent is dee#ed ad#itted.

Re$ ! do Notes< 6hat does ad#ission "y adverse party conte#plate> Ad#ission "y adverse party% as a #ode of discovery% conte#plates interro$atories see@in$ clarification in order to deter#ine the truth of the alle$ations in a pleadin$. A re-uest for ad#ission should not #erely reproduce or reiterate the alle$ations of the

111 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA Su"poena ,uces ecu# Nature Process re-uirin$ a person to "rin$ with hi# any "oo@s% docu#ents or other thin$s under his control or possession. =rder for Production or *nspection order to produce nd per'it t+e inspection nd copyin$ or p+oto$r p+in$% "y or on "ehalf of the #ovin$ party% of any desi$nated docu#ents% papers% "oo@s% etc.% =R order any party to per'it entry upon desi$nated land or other property in his possession or control for the purpose of inspectin$% #easurin$% surveyin$% or photo$raphin$ the property or any desi$nated relevant o"!ect or operation thereon. =nly to a PAR G :efore andVor durin$ trial *ssued "y the court where the action is pendin$.

Production or nspection o! )ocuments or $hings (Rule &7+ 4otion for production or inspectionK order. Bpon #otion of any party showin$ $ood cause therefor% the court in which an action is pendin$ #ay (a+ order any party to produce nd per'it t+e inspection nd copyin$ or p+oto$r p+in$% "y or on "ehalf of the #ovin$ party% of any desi$nated docu#ents% papers% "oo@s% accounts% letters% photo$raphs% o"!ects or tan$i"le thin$s% not privile$ed% which constitute or contain evidence #aterial to any #atter involved in the action and which are in his possession% custody or controlK or ("+ order any party to per'it entry upon desi$nated land or other property in his possession or control for the purpose of inspectin$% #easurin$% surveyin$% or photo$raphin$ the property or any desi$nated relevant o"!ect or operation thereon. he order shall specify the ti#e% place and #anner of #a@in$ the inspection and ta@in$ copies and photo$raphs% and #ay prescri"e such ter#s and conditions as are !ust. (Sec. 1% Rule &7+ Re$ ! do Notes= Co#pare Rule &7 with a su"poena duces tecu#. he production of docu#ents affords #ore opportunity for discovery than a su"poena duces tecu# as% in the latter% the docu#ents are "rou$ht to the court for the first ti#e on the date of the scheduled trial wherein such docu#ents are re-uired to "e produced. he inspection of land and other real property for the purposes authori8ed "y Rule &7 also avoids the need for ocular inspection thereof "y the court. he court is authori8ed under Rule &7 to ta@e the su"!ect #atter of the #otion for production or inspection of docu#ents or thin$s in custodia le$is. rue or false. Calse. his #ode of discover under Rule &7 does N= authori8e opposin$ party or the cler@ or other functionaries of the court to distrain the articles or deprive the person who produced the sa#e of their possession% even te#porarily. ( anda v. Aldaya% 89 Phil. &97+ 6hat is the test to "e applied in deter#inin$ the relevancy of docu#ents and the sufficiency of their description> he test is one of reasona"leness and practica"ility. (5ine Corp. of the Phils. ). 4oran% ;9 Phil. 17.+ 9 ustist Notes=

o who# directed 6hen it #ay "e as@ed> *ssued "y 6ho#>

o ANG person =nly durin$ trial *ssued "y a court "efore who# the witness is re-uired to attend% or court where the deposition is to "e ta@en or cler@ or "ody authori8ed "y law or any Justice of SC or CA in any case or investi$ation pendin$ within the Phils. *ssued upon re-uest No.

6hen *ssued> 4ust $ood cause "e shown> 'rounds for -uashal.

*ssued upon #otion. Ges.

Conse-uence of ,iso"edience

,ifferentiate a su"poena duces tecu# and an order for production or inspection of docu#ents.
112 of 229

Bnreasona"le and oppressive% irrelevant% or the person in whose "ehalf the su"poena is issued fails to advance the reasona"le costs of the production thereof Constitutes conte#pt of the court fro# which the su"poena was issued

No $ood cause shown.

See Sec. 0% Rule &9

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

,efendant files a #otion for production of docu#ents. Plaintiff o"!ects to the #otion% sayin$ that the infor#ation could "e co#e availa"le in a su"poena duces tecu#. Rule on the #otion. 4otion is $ranted and o"!ection is denied. *t is not a valid o"!ection to a #otion for production and inspection of docu#ents that the infor#ation could "eco#e availa"le "y depositions or su"poena duces tecu# "ecause that would "e tanta#ount to the ar$u#ent that the party is entitled to retain his evidence until the actual trial% with all the advanta$es of secrecy and surprise. (Sa9ton v. 6S As@ew Co% 08 C.Supp. 0&0+ Nor is it a defense to a #otion for production that the docu#ents contain inad#issi"le evidence "ecause such docu#ents #i$ht "e used for re"uttal or i#peach#ent purposes or for other reasons for which they #ay "e ad#issi"le. (4ac@erer v. New Gor@% 1 C.R.,. 3/8+

113 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

Ph"sical and Mental Examination o! Persons (Rule &8+ 6hen e9a#ination #ay "e ordered.
*n an ction in "+ic+ t+e 'ent ! or p+ysic ! condition o& p rty is in contro#ersy% the court in which the action is pendin$ #ay in its discretion order hi# to su"#it to a physical or #ental e9a#ination "y a physician. (Sec. 1% Rule &8+

1. party e9a#ined has to furnish the other party a copy of the report of any previous or su"se-uent e9a#ination of the sa#e physical and #ental condition. &. party e9a#ined waives any privile$e he #ay have in that action or any other involvin$ the sa#e controversy re$ardin$ the testi#ony of any other person who has so e9a#ined hi# or #ay thereafter e9a#ine hi#. 9 ustist Notes=

=rder for e9a#ination.

he order for e9a#ination #ay "e #ade a. only on #otion for $ood cause shown and ". upon notice to the party to "e e9a#ined and to all other parties% and c. shall specify the ti#e% place% #anner% conditions and scope of the e9a#ination and the person or persons "y who# it is to "e #ade. (Sec. &% Rule &8+

Report of findin$s.
*f re-uested "y the party e9a#ined% the party causin$ the e9a#ination to "e #ade shall deliver to hi# a copy of a detailed written report of the e9a#inin$ physician settin$ out his findin$s and conclusions. A&ter suc+ re-uest nd de!i#ery, t+e p rty c usin$ t+e e) 'in tion to %e ' de s+ !! %e entit!ed upon re-uest to recei#e &ro' t+e p rty e) 'ined !i(e report o& ny e) 'in tion, pre#ious!y or t+ere &ter ' de, o& t+e s 'e 'ent ! or p+ysic ! condition. *f the party e9a#ined re&uses to de!i#er suc+ report% the court on #otion and notice #ay #a@e an order re-uirin$ delivery on such ter#s as are !ust% and if a physician fails or refuses to #a@e such a report the court #ay e9clude his testi#ony if offered at the trial. (Sec. 0% Rule &8+

1#ployee P files an action for se9ual harass#ent a$ainst 1#ployer OOO. P alle$es e#otional distress and #ental an$uish fro# her e9perience with OOO. OOO files a #otion for #ental e9a#ination of P. P o"!ects sayin$ in se9ual harass#ent suit% her #ental condition was not an issue. Rule on the #otion. 4otion is $ranted. *n an action for se9ual harass#ent where the plaintiff alle$ed that the defendantAs action caused her e#otional distress and #ental an$uish% plaintiff was ordered on defendantAs #otion to under$o a #edical and physical e9a#ination. Plaintiff was held to have placed her #ental condition in controversy "y alle$in$ #ental and e#otional distress and defendant is entitled to discover whether plaintiffAs alle$ed distress was caused "y a pre2e9istin$ #ental condition or "y alternative causes. ()inson v. CA% 30 Cal.0d 800+ Can you as@ a psychiatric e9a#ination of a witness> No. =nly a party. 'enerally% if a party refuses to "e su"!ected to any of the #odes of discovery% can you put hi# in !ail> Ges% e9cept for refusal to su"#it to a physical or #ental e9a#ination. A#en Notes .1D J n 640

6aiver of privile$e.
:y re-uestin$ and o"tainin$ a report of the e9a#ination so ordered or "y ta@in$ the deposition of the e9a#iner% t+e p rty e) 'ined " i#es ny pri#i!e$e +e ' y + #e in t+ t ction or ny ot+er in#o!#in$ t+e s 'e contro#ersy, re$ rdin$ t+e testi'ony o& e#ery ot+er person "+o + s e) 'ined or ' y t+ere &ter e) 'ine +i' in respect o& t+e s 'e 'ent ! or p+ysic ! e) 'in tion. (Sec. 3% Rule &8+

Re$ ! do Notes= Are the results of the physical and #ental e9a#ination "y order of the court protected under the physician2patient privile$e> No. Since the results of the e9a#ination are intended to "e #ade pu"lic% the sa#e are not covered "y the physician2patient privile$e. Such e9a#ination is N= necessary to treat or cure the patient "ut to assess the e9tent of in!ury or to evaluate his physical or #ental condition. 6hat are the conse-uences when the party e9a#ined re-uests for a report on the results of the e9a#ination> 6here the party e9a#ined re-uests and o"tains a report on the results of the e9a#ination% the conse-uences are<

6hat are the conditions for a court order for physical and #ental e9a#ination of the person> 1. $ood cause &. notice to the party to "e e9a#ined 0. #ust specify physician 3. scope of the e9a#ination ;. ti#e% place and #anner of e9a#ination. 6hat is the $round for o"!ectin$ to a #ental or physical e9a#ination> he #ental or physical e9a#inations will not "e proper if the #ental or physical condition of the person is not in controversy.

114 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA (d+ *n lieu of any of the fore$oin$ orders or in thereto% an order directin$ the rrest of any party of a party for diso"eyin$ any of such orders e9cept to su"#it to a physical or #ental e9a#ination. Rule &9+ addition or a$ent an order (Sec. 0%

1e!usal to Compl" %ith Modes o! )iscover" (Rule &9+ Refusal to answer.
*f a party or other deponent re&uses to ns"er ny -uestion upon or ! e) 'in tion % the e9a#ination #ay "e a. co#pleted on other #atters or ". ad!ourned as the proponent of the -uestion #ay prefer. he proponent #ay thereafter apply to the proper court of the place where the deposition is "ein$ ta@en% for an order to co'pe! n ns"er. he sa#e procedure #ay "e availed of when a party or a witness refuses to answer any interro$atory su"#itted under Rules &0 or &;. (a+ *f the pp!ic tion is $r nted% the court shall re-uire the refusin$ party or deponent to answer the -uestion or interro$atory and if it also finds that the refusal to answer was without su"stantial !ustification% it #ay re-uire the refusin$ party or deponent or the counsel advisin$ the refusal% or "oth of the#% to pay the proponent the a#ount of the reasona"le e9penses incurred in o"tainin$ the order% includin$ attorneyTs fees. ("+ *f the pp!ic tion is denied and the court finds that it was filed without su"stantial !ustification% the court #ay re-uire the proponent or the counsel advisin$ the filin$ of the application% or "oth of the#% to pay to the refusin$ party or deponent the a#ount of the reasona"le e9penses incurred in opposin$ the application% includin$ attorneyTs fees. (Sec. 1% Rule &9+

19penses on refusal to ad#it.

*f a party after "ein$ served with a re-uest under Rule &. to ad#it the $enuineness of any docu#ent or the truth of any #atter of fact% serves a sworn denial thereof and if the party re-uestin$ the ad#issions thereafter proves the $enuineness of such docu#ent or the truth of any such #atter of fact% he #ay apply to the court for an order re-uirin$ the other party to pay hi# the reasona"le e9penses incurred in #a@in$ such proof% includin$ attorneyTs fees. Bnless the court finds that there were $ood reasons for the denial or that ad#issions sou$ht were of no su"stantial i#portance% such order shall "e issued. (Sec. 3% Rule &9+

Cailure of party to attend or serve answers.
*f a party or an officer or #ana$in$ a$ent of a party wilfully fails to appear "efore the officer who is to ta@e his deposition% after "ein$ served with a proper notice% or fails to serve answers to interro$atories su"#itted under Rule &; after proper service of such interro$atories% the court on #otion and notice% #ay 1. stri@e out all or any part of any pleadin$ of that party% or &. dis#iss the action or proceedin$ or any part thereof% or 0. enter a !ud$#ent "y default a$ainst that party% and in its discretion% order hi# to pay reasona"le e9penses incurred "y the other% includin$ attorneyTs fees. (Sec. ;% Rule &9+

Conte#pt of court.
or (1+ *f a party or other witness refuses to "e sworn (&+ refuses to answer any -uestion after "ein$ directed to do so "y the court of the place in which the deposition is "ein$ ta@en% the refusal #ay "e considered a conte#pt of that court. (Sec. &% Rule &9+

19penses a$ainst the Repu"lic of the Philippines.
19penses and attorneyTs fees are not to %e i'posed upon t+e Repu%!ic o& t+e P+i!ippines under this Rule. (Sec. .% Rule &9+

=ther conse-uences.

A. *f any party or an officer or #ana$in$ a$ent of a party refuses to o"ey an order #ade under section 1 of this Rule re-uirin$ hi# to answer desi$nated -uestions% or :. an order under Rule &7 to produce any docu#ent or other thin$ for inspection% copyin$% or photo$raphin$ or to per#it it to "e done% or to per#it entry upon land or other property% or C. an order #ade under Rule &8 re-uirin$ hi# to su"#it to a physical or #ental e9a#ination% the court #ay #a@e such orders in re$ard to the refusal as are !ust% and a#on$ others the followin$< (a+ An order that the #atters re$ardin$ which the -uestions were as@ed% or the character or description of the thin$ or land% or the contents of the paper% or the physical or #ental condition of the party% or any other desi$nated facts s+ !! %e t (en to %e est %!is+ed &or t+e purposes o& t+e ction in accordance with the clai# of the party o"tainin$ the orderK ("+ An order re&usin$ to !!o" t+e diso%edient p rty to support or oppose desi$n ted c! i's or de&enses or pro+i%itin$ +i' &ro' introducin$ in e#idence desi$nated docu#ents or thin$s or ite#s of testi#ony% or fro# introducin$ evidence of physical or #ental conditionK (c+ An order stri(in$ out p!e din$s or p rts t+ereo&, or st yin$ &urt+er proceedin$s unti! t+e order is o%eyed, or dis'issin$ t+e ction or proceedin$ or ny p rt t+ereo&, or renderin$ *ud$'ent %y de& u!t a$ainst the diso"edient partyK and

A:51 =N 1CC1C S =C R1CBSA5
ype of Refusal Refusal to answer -uestions in interro$atories (Rule &0 or &;+ Refusal to o"ey court order to answer (Rule &9.1% Rule &.% Rule &7+ Conse-uence A. either co#plete the e9a#ination on other #atter =R ad!ourn the e9a#ination :. Apply to the court for order to co#pel an answer 4ay "e re-uired "y the court to pay the proponent the a#ount of reasona"le e9penses incurred in o"tainin$ court order% includin$ attorneyAs fees. Other ConseFuences9 2 such orders as the court #ay dee# !ust 2 order that the su"!ect #atter re$ardin$ the in-uiry shall "e ta@en to "e esta"lished for the purposes of the action in accordance with the clai# of the party o"tainin$ the order. 2 order prohi"itin$ the introduction of evidence 2 order to stri@e out pleadin$s or part thereof 2 order to stay further

115 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 proceedin$s 2 order dis#issin$ the action or proceedin$ or any part thereof. 2 order renderin$ !ud$#ent "y default. 2 order the arrest Proponent of the application #ay "e re-uired to pay the refusin$ party or deponent the a#ount or reasona"le e9penses incurred in opposin$ the application includin$ attorneyAs fees. Conte#pt of court where the swearin$ in should have "een done Conte#pt of court

JONATHAN PAMPOLINA

*f there is a denial of application for court to co#pel refusin$ deponent to answer

Refusal to "e sworn in Refusal to answer any -uestion after "ein$ directed to do so "y the court of the place where the deposition is "ein$ ta@en Refusal to su"#it to a physical and #ental e9a#ination (Rule &8+

Refusal to ad#it $enuineness of any docu#ent or the truth of any #atter of fact (Rule &9.3 in relation to Rule &.+

o

o

Refuses to appear "efore deposition officer% after "ein$ served with proper notice Refuses to serve answers to interro$atories su"#itted under Rule &;% after proper service of such interro$atories

Other ConseFuences9 (sa#e as a"ove in Refusal to produce or inspect docu#ents or thin$s+ 1OC1P that party refusin$ to su"#it to e9a#ination #ay N= "e ARR1S 1, for his refusal to su"#it. Proponent #ay as@ court order re-uirin$ refusin$ party to pay proponent reasona"le e9penses incurred in #a@in$ such proof% includin$ attorneyAs fee. BN51SS there were $ood reasons for denial or that ad#issions sou$ht were of no su"stantial i#portance 2 order to stri@e out pleadin$s or part thereof 2 order to stay further proceedin$s 2 order dis#issin$ the action or proceedin$ or any part thereof. 2 order renderin$ !ud$#ent "y default. 2 order to pay reasona"le e9penses incurred "y the other includin$ attorneyAs fees.

11 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA reasona"le e9penses which the filin$ of the affidavits caused hi# to incur% includin$ attorneyTs fees. *t #ay% after hearin$% further ad!ud$e the offendin$ party or counsel $uilty of conte#pt. (Sec. .% Rule 0;+

e. Su##ary Jud$#ent (Rule 0;+ Su##ary !ud$#ent for c! i' nt.
A party see@in$ to recover upon a clai#% counterclai#% or cross2clai# or to o"tain a declaratory relief #ay% at any ti#e &ter t+e p!e din$ in ns"er t+ereto + s %een ser#ed% #ove with supportin$ affidavits% depositions or ad#issions for a su##ary !ud$#ent in his favor upon all or any part thereof. (Sec. 1% Rule 0;+

Re$ ! do Notes= 6hen are su##ary !ud$#ents proper> Su##ary !ud$#ent is proper only when there is clearly no $enuine issue s to ny ' teri ! & ct in t+e ction, nd i& t+ere is ny -uestion or contro#ersy upon ny -uestion o& & ct, t+ere s+ou!d %e tri ! on t+e 'erits . (A$canas v. Na$u#+ Su##ary !ud$#ent is N= proper where the defendant presented defenses tenderin$ factual issues which call for the presentation of evidence. ()illanueva v. NA4ARC=+ ,efendant files a #otion for su##ary !ud$#ent. Jud$e i##ediately $rants the #otion e9 parte. Plaintiff contests the !ud$eAs order. *s the !ud$eAs order valid> N=. here #ust "e a #otion for su##ary !ud$#ent and a hearin$ of said #otion% the non2 o"servance of which procedural re-uire#ents warrants the settin$ aside of the su##ary !ud$#ent. (Cadirao v. 1sten8o+ 6hat is the test for the propriety of a #otion for su##ary !ud$#ent> he test for the propriety of a #otion for su##ary is whether the pleadin$% affidavits and e9hi"its in support of the #otion are sufficient to overco#e the opposin$ papers and to !ustify the findin$ that as a #atter of law% there is no defense to the action or the clai# is clearly #eritorious (1strada v. Consolacion+ Can a #otion for su##ary !ud$#ent "e rendered on the a#ount of da#a$es that is to "e recovered> No% under Section 0 of Rule 0;% su##ary !ud$#ent #ay not "e rendered on the A4=BN of da#a$es% althou$h such !ud$#ent #ay "e entered on the issue of the R*'7 to da#a$es. hereafter the court #ay proceed to assess the a#ount recovera"le. (Ju$ador v. ,e )era+ Also the court cannot i#pose attorneyAs fees in a su##ary !ud$#ent in the a"sence of proof as to the a#ount thereof. (6arner :arnes v. 5u8on Surety+ *f there is dou"t as to the propriety of a su##ary !ud$#ent% to who# shall the dou"t "e resolved> he dou"t shall "e resolved a$ainst the #ovin$ party. he court should ta@e that view of evidence #ost favora"le to the party a$ainst who# it is directed and $ive that party the "enefit of all favora"le inferences. ('atchalian v. Pavilin+

Su##ary !ud$#ent for de&endin$ p rty.

A party a$ainst who# a clai#% counterclai#% or cross2clai# is asserted or a declaratory relief is sou$ht #ay% t ny ti'e% #ove with supportin$ affidavits% depositions or ad#issions for a su##ary !ud$#ent in his favor as to all or any part thereof. (Sec. &% Rule 0;+

4otion and proceedin$s thereon.
he #otion shall "e served t !e st ten ./60 d ys %e&ore t+e ti'e speci&ied &or t+e +e rin$. he adverse party #ay serve opposin$ affidavits% depositions% or ad#issions t !e st t+ree .20 d ys %e&ore t+e +e rin$. After the hearin$% the !ud$#ent sou$ht shall "e rendered forthwith if the pleadin$s% supportin$ affidavits% depositions% and ad#issions on file% show that% e9cept as to the a#ount of da#a$es% there is no $enuine issue s to ny ' teri ! & ct nd t+ t t+e 'o#in$ p rty is entit!ed to *ud$'ent s ' tter o& ! " . (Sec. 0% Rule 0;+

Case not fully ad!udicated on #otion.
*f on #otion under this Rule% !ud$#ent is not rendered upon the whole case or for all the reliefs sou$ht and a trial is necessary% the court at the hearin$ of the #otion% "y e9a#inin$ the pleadin$s and the evidence "efore it and "y interro$atin$ counsel shall ascertain 1. what #aterial facts e9ist without su"stantial controversy and &. what are actually and in $ood faith controverted. *t shall thereupon #a@e an order specifyin$ the facts that appear without su"stantial controversy% includin$ the e9tent to which the a#ount of da#a$es or other relief is not in controversy% and directin$ such further proceedin$s in the action as are !ust. he facts so specified shall "e dee#ed esta"lished% and the trial shall "e conducted on the controverted facts accordin$ly. (Sec. 3% Rule 0;+

Cor# of affidavits and supportin$ papers.

Supportin$ and opposin$ affidavits a. shall "e #ade on personal @nowled$e% ". shall set forth such facts as would "e ad#issi"le in evidence% and c. shall show affir#atively that the affiant is co#petent to testify to the #atters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall "e attached thereto or served therewith. (Sec. ;% Rule 0;+

Affidavits in "ad faith.

Should it appear to its satisfaction at any ti#e that any of the affidavits presented pursuant to this Rule are presented in % d & it+% or so!e!y &or t+e purpose o& de! y% the court shall forthwith order the offendin$ party or counsel to pay to the other party the a#ount of the

11! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

,enials% unacco#panied "y any fact which would "e ad#issi"le in evidence at a hearin$% are sufficient to raise a $enuine issue of fact. rue or false. Calse. 4ere denials are N= sufficient to raise a $enuine issue of fact sufficient to defeat a #otion for su##ary !ud$#ent. (Plantadosie v. 5oewAs+ 6here all the facts are within the !udicial @nowled$e of the court% su##ary !ud$#ent #ay "e $ranted as a #atter of ri$ht. Bpon #otion for su##ary !ud$#ent% the !ud$e finds that the #otion is only partially #eritorious and $rants the partially the #otion. he trial court continues with the hearin$ of the case. he #ovant appeals the partial denial of his #otion. As the appellate court% rule on the appeal. Appeal is denied. 6hile sec. 3 of Rule 0; authori8es the rendition of a partial su##ary !ud$#ent% such !ud$#ent is interlocutory in nature and is not a final and appeala"le !ud$#ent. he appeal fro# the partial su##ary should "e ta@en to$ether with the !ud$#ent in the entire case after the trial shall have "een conducted on the #aterial facts on which a su"stantial controversy e9ists. ('uevarra v. CA+ 9 ustist Notes=

here is a $enuine issue if a re$ular trial is needed to resolve it. 6hen is an issue as to a #aterial fact $enuine> An issue is $enuine if it is properly tria"le% when it #erits trial% #eanin$ it re-uires for its resolution a full dress hearin$ or a trial where you call witnesses% direct and cross e9a#ine. 6here% for instance% the plaintiff sues for collection on a note paya"le and the defendant does not deny the e9ecution of the note "ut defends "y sayin$ that he has paid. 6hy not !ust present affidavits and the receipt> 6hat is there to try> Repu"lic v. Sandi$an"ayan his was the forfeiture case to declare the 4arcos assets held in escrow in PN: as ill2$otten wealth. wo #otions for su##ary !ud$#ent were filed< the first "ased on the co#pro#ise a$ree#ent reached with the PC'' and the second was filed after pre2trial. 4arcos failed to raise any $enuine issue. Stoc@ or $eneral denials due to lac@ or insufficiency of @nowled$e of the 4arcos of such accounts was N= a proper denial. he 4arcosAs #erely asserted that the wealth was le$ally ac-uired "ut without $ivin$ su"stantial proof of the sa#e. 'rand Car#s v. CA 'rand Car#s filed for an annul#ent of the e9tra !udicial foreclosure proceedin$s of their property instituted "y :anco Cilipino% sayin$ that the latter did not $ive notice of the foreclosure. 'rand Car#s filed a re-uest for ad#ission as@in$ the :an@ to ad#it that there was no personal notice $iven to 'rand Car#s. he :an@ replied sayin$ that they notified 'rand Car#s Hthrou$h postin$ of notices and pu"lication.N 'rand Car#s #oved for su##ary !ud$#ent. he #otion for su##ary !ud$#ent was proper "ecause to re-uire trial despite the lac@ of personal notice to 'rand Car#s of the foreclosure would "e a superfluity. he "an@As answer was a tacit ad#ission that it did not send a for#al notice personally to 'rand Car#s% which notice was specifically en!oined "y the #ort$a$e contract. he test o& t+e propriety o& 'otion &or su'' ry *ud$'ent is whether or not the pleadin$s% affidavits and e9hi"its in support of the #otion are sufficient to overco#e the opposin$ papers and to !ustify a findin$ as a #atter of law that there is no defence to the action or that the clai# is #eritorious. Allied A$ri2:usiness v. CA Cherry )alley% a forei$n corporation% sued Allied A$ri2:usiness for pay#ent of several duc@ hatchlin$ e$$s and duc@lin$s. ?uintosAs% President of Allied A$ri2:usiness% invited Cherry )alley to "e a stoc@holder in a new co#pany% "ut Cherry )alley

6hat is the two step procedure on a #otion for su##ary !ud$#ent> 1. here #ust "e a deter#ination that the case is appropriately resolva"le on a su##ary !ud$#ent. &. After such deter#ination% the court will resolve the case on the "asis of the affidavits% depositions and ad#issions on file. (1strada v. Consolacion+ 6hat is the principal purpose of allowin$ su##ary !ud$#ent> *t is to isolate and dispose of factually unsupported clai#s or defenses. *n order to show that there is a $enuine issue of fact which would re-uire a trial% the "urden is on the opposin$ party to $o "eyond the pleadin$s "y deposition% supportin$ affidavits and ad#issions. (Celote9 v. Catrett+ Su##ary !ud$#ent is particularly inappropriate where the inferences which the parties see@ to have drawn deal with -uestions of #otive% intent and su"!ective feelin$s and reactions. (Cross v. BS+ 6hat is the rationale for the rule allowin$ for su##ary !ud$#ent> *t is to spare the court and the other party of $oin$ throu$h with the trial. here is no need to spend ti#e on factually "aseless clai#s and defenses. 6hat is a $enuine issue>

11" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

declined. *n a letter to Cherry )alley% ?uintos e9pressly ac@nowled$ed the o"li$ation. Cherry )alley filed a re-uest for ad#ission "ut Allied A$ri2:usiness refused to co#ply. Cherry )alley #oved for su##ary !ud$#ent. Allied A$ri2:usiness failed to su"#it answers to the re-uest for ad#ission and therefore ad#itted the alle$ations. Su##ary !ud$#ent #ay "e $ranted if the facts which stand ad#itted "y reason of failure to deny the state#ents% show no #aterial issue of facts% as what happened in this case. 'S*S v. Philippine )illa$e 7otel A 4=A was reached "etween Philippine )illa$e 7otel *nc. (P)7*+ and 'S*S where the for#er would pay P0//4 to settle all its outstandin$ accounts. P)7* filed an action for specific perfor#ance to co#pel 'S*S to accept the "alance of P&7/4. P)7*% after presentin$ their evidence% #oved for a partial su##ary !ud$#ent% which the trial court $ranted confir#in$ the validity of the 4=A and orderin$ 'S*S to accept the "alance. P)7* appealed the $rant of its own #otion. CA denied the appeal. *SSB1< 6=N the CA #ay pass upon the partial su##ary !ud$#ent of R C% considerin$ the R C has not yet ad!ud$ed the a#ount of recovera"le da#a$es. A partial su##ary !ud$#ent is N= reviewa"le "y the CAK it does not finally dispose of the action. *t is #erely an interlocutory order and not a final !ud$#ent. he !ud$#ent postponed the hearin$ on the a#ount of da#a$es and the findin$ of da#a$es is insepara"le fro# the validity of the 4=A. A#en Notes ./ Fe% 640

&. he affected party can !ust let the trial proceed% and if the decision is still unfavoura"le% he can appeal. Allied A$ri2:usiness v. CA here was no $enuine issue of fact "ecause ?uintos had ad#itted the de"t throu$h the letter. (evidence aliunde+ 'rand Car#s v. CA here was an i#plied ad#ission "y :anco Cilipino that 'rand Car#s was not $iven P1RS=NA5 N= *C1 of the foreclosure of the property% which was specifically provided for in the #ort$a$e contract. Repu"lic v. Sandi$an"ayan *n a petition for forfeiture% there is a presu#ption of ill2$otten wealth when the property ac-uired is "eyond the salaries of a pu"lic official. he defenses raised "y the 4arcos on their face would tender an issue% "ut upon presentation of other docu#ents% the defenses were indeed a Hsha#N. *n this case% the #otion for su##ary !ud$#ent a$ainst the 4arcos used the pleadin$s of the 4arcos and even other evidence aliunde< 1. the answer% &. pre2trial "rief% 0. de#urrer to evidence% 3. co#pro#ise and supple#ental a$ree#ent "ased on the Swiss court rulin$% ;. #otion to free8e% .. #anifestation of *#elda that 9/Y of the dollar account "elon$ to *#elda and .. the other attach#ents to the #otion for su##ary !ud$#ent. S *n a #otion for su##ary !ud$#ent% the answer tenders an issue of fact (which #a@es it different fro# a #otion for !ud$#ent on the pleadin$s+ "ut the issue of fact presented is N= a $enuine issue.

*s there a deadline for filin$ a #otion for su##ary !ud$#ent> No. As to the evidence presented% differentiate a #otion for !ud$#ent on the pleadin$s with a #otion for su##ary !ud$#ent. *n a #otion for !ud$#ent on the pleadin$s% the court "ases its decision only on the pleadin$s D the co#plaint of the plaintiff and the answer of the defendant. *n a #otion for su##ary !ud$#ent% the court relies on the pleadin$s% affidavits% depositions and ad#ission for its decision. 'S*S v. Philippine )illa$e 7otel A partial su##ary !ud$#ent interlocutory order and is not appeala"le. is an

6hat are the re#edies a$ainst a partial su##ary !ud$#ent issued "y the court> 1. Cile an ori$inal action for certiorari under Rule .; for $rave a"use of discretion in issuin$ the partial su##ary !ud$#ent.
119 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

f. ,e#urrer to 1vidence (Rule 00+ ,e#urrer to 1vidence.
A&ter t+e p! inti&& + s co'p!eted t+e present tion o& +is e#idence % the defendant #ay #ove for dis#issal on the $round that upon t+e & cts nd t+e ! " t+e p! inti&& + s s+o"n no ri$+t to re!ie& . a. *f his 'otion is denied% he shall have the ri$ht to present evidence. ". *f the 'otion is $r nted %ut on ppe ! t+e order o& dis'iss ! is re#ersed he shall "e dee#ed to have waived the ri$ht to present evidence. (Sec. 1% Rule 00+

&. ,efendant #ay waive the presentation of his evidence and decide to su"#it the case for decision on the "asis of plaintiffAs evidence alone. 0. ,efendant #ay file what is @nown as a Hde#urrer to evidenceN. 6hat is the ris@ in defendant filin$ a de#urrer> *f the de#urrer is $ranted and there is an appeal of the !ud$#ent and it is reversed% the #ovant2defendant loses his ri$ht to present his evidence. he defendant therefore ta@es the chance where his de#urrer is $ranted% and this can only #ean that he should "e fairly sure of the solidity of his $round when he #oves for !ud$#ent without havin$ to adduce evidence on his side. Northwest Airlines v. CA his was the case where orres purchased firear#s in the BS and $ot lost when transported "y Northwest Airlines. orres filed suit in the Philippines for actual% #oral% te#perate and e9e#plary da#a$es a$ainst Northwest. After orres presented his evidence% Northwest filed a de#urrer to the evidence (as to the #oral% te#perate and e9e#plary da#a$es+ with a #otion for su##ary !ud$#ent (as to the actual da#a$es+. C rendered a full2"lown decision orderin$ Northwest to pay actual and #oral da#a$es. Su##ary !ud$#ent can only "e $ranted as to the actual da#a$es "ut it cannot cover clai#s for #oral da#a$es and attorneyAs fees. he #otion for su##ary !ud$#ent was not proper "ecause there was a $enuine issue of fact% 6=N Northwest was lia"le and if so% for how #uch. *n denyin$ NorthwestAs de#urrer% the trial court cannot i##ediately $rant orres relief. Northwest% upon the denial of its de#urrer% should "e allowed to present evidence. Choa v. Choa Alfonso Choa filed for declaration of nullity of his #arria$e with 5eni Choa "ased on Art.0. psycholo$ical incapacity. After Alfonso presented his evidence in chief% 5eni filed a de#urrer to the evidence sayin$ that Alfonso did not esta"lish psycholo$ical incapacity. C denied the de#urrer sayin$ Alfonso esta"lished a -uantu# of evidence which #ust "e controverted. A de#urrer to evidence is proper when the evidence% which the adverse party produced is insufficient in point of law to #a@e out his case or sustain the issues. AlfonsoAs evidence was insufficient to support any findin$ of psycholo$ical incapacity.

Re$ ! do Notes. 6hat is a de#urrer to evidence> A de#urrer to evidence is a #otion to dis#iss on the $round of insufficiency of evidence and is presented after the plaintiff rests his case. 7ow is a de#urrer to evidence different to a #otion to dis#iss% under Rule 1.> A de#urrer to evidence differs to a #otion to dis#iss under Rule 1. which is $rounded on preli#inary o"!ections and is presented at the outset of the case. 6hat are the effects if a lower court decision $rantin$ a de#urrer is su"se-uently reversed "y the appellate court> he defendants lose the ri$ht to present their own evidence. he appellate court shall% in addition% resolve the case and render !ud$#ent on the #erits% inas#uch as a de#urrer ai#s to discoura$e prolon$ed liti$ations. *t cannot re#and the case for further proceedin$s. (Radio 6ealth Cinance v. ,el Rosario+ he decision of the appellate court will "e "ased only on the evidence of the plaintiff as the defendant loses his ri$ht to have the case re#anded for reception of his evidence. (Siayn$co v. Costi"olo+ *s an order resolvin$ a de#urrer to evidence a final order of the court> *t depends. 6here the defendantAs de#urrer to evidence is sustained and the case is dis#issed% such order would "e an ad!udication on the #erits% hence the re-uire#ent that said !ud$#ent should state clearly and distinctly the facts and the law on which it is "ased. 6here the de#urrer is denied% the denial order is interlocutory in nature. Such denial order is not controlla"le "y certiorari% a"sent an oppressive e9ercise of !udicial authority. 9 utist Notes.

After the plaintiff has rested his case% what are the options of the defendant> 1. ,efendant #ay proceed to present his evidence.

120 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA A certification to this effect si$ned "y the Chief Justice shall "e issued and a copy thereof attached to the record of the case and served upon the parties. Any 4e#"ers who too@ no part% or dissented% or a"stained fro# a decision or resolution% #ust state the reason therefore. he sa#e re-uire#ent shall "e o"served "y all lower colle$iate courts. (Sec. 10+ No decision s+ !! %e rendered %y ny court "it+out e)pressin$ t+erein c!e r!y nd distinct!y t+e & cts nd t+e ! " on "+ic+ it is % sed. No petition for review or #otion for reconsideration of a decision of the court shall "e refused due course or denied without statin$ the le$al "asis therefore. (Sec. 13+

>I>. Jud$'ents, Fin ! Orders .Ru!e 250

nd Entry T+ereo&

Rendition of !ud$#ents and final orders.
A !ud$#ent or final order deter#inin$ the #erits of the case shall "e a. in writin$ personally and directly prepared "y the !ud$e% ". statin$ clearly and distinctly the facts and the law on which it is "ased% c. si$ned "y hi#% and d. filed with the cler@ of the court. (Sec. 1% Rule 0.+

1ntry of !ud$#ents and final orders.

*f no appeal or #otion for new trial or reconsideration is filed within the ti#e provided in these Rules% the !ud$#ent or final order shall forthwith "e entered "y the cler@ in the "oo@ of entries of !ud$#ents. he date of finality of the !ud$#ent or final order shall "e dee#ed to "e the date of its entry. he record shall contain the dispositive part of the !ud$#ent or final order and shall "e si$ned "y the cler@% with a certificate that such !ud$#ent or final order has "eco#e final and e9ecutory. (Sec. &% Rule 0.+

Jud$#ents and processes.

Jud$#ent for or a$ainst one or #ore of several parties.
Jud$#ent #ay "e $iven for or a$ainst one or #ore of several plaintiffs% and for or a$ainst one or #ore of several defendants. 6hen !ustice so de#ands% the court #ay re-uire the parties on each side to file adversary pleadin$s as "etween the#selves and deter#ine their ulti#ate ri$hts and o"li$ations. (Sec. 0% Rule 0.+

All !ud$#ents deter#inin$ the #erits of cases shall "e a. in writin$% ". statin$ clearly the facts and the law on which they were "ased% c. si$ned "y the Jud$e and d. filed with the Cler@ of Court. Such !ud$#ent shall "e appeala"le to the R C in accordance with the procedure now prescri"ed "y law for appeals to the Court of Cirst *nstance "y the provisions of this Act% and "y such rules as the SC #ay hereafter prescri"e. (Sec. 08% para.1% :P 1&9+ All processes issued "y the 4e C% 4 C and 4C C% in cases fallin$ within their !urisdiction% #ay "e served anywhere in the Philippines without the necessity of certification "y the Jud$e of the Re$ional rial Court. (Sec. 08% para.&% :P 1&9+

Several !ud$#ents.

*n an action a$ainst several defendants% the court #ay% when a several !ud$#ent is proper% render !ud$#ent a$ainst one or #ore of the#% leavin$ the action to proceed a$ainst the others. (Sec. 3% Rule 0.+

Re$ ! do Notes. 6hat is the decision of the court> he decision of the court is the entire docu#ent prepared and pro#ul$ated "y it% ad!udicatin$ and deter#inin$ the ri$hts of the parties to the case. 6hat is the fallo> he fallo or the dispositive portion or decretal portion is what actually constitutes the !ud$#ent or resolution of the court and which can "e the su"!ect of e9ecution% althou$h the other parts of the decision #ay "e resorted to in order to deter#ine the ration decidendi for such !ud$#ent or resolution. 6hat should $overn should there "e a conflict "etween the fallo and the "ody of the decision> he dispositive portion or fallo controls irrespective of what appears in the "ody of the decision. 1OC1P *=NS< a. where the inevita"le conclusion fro# the findin$s of fact in the opinion is so indu"ita"le and clear as to show that there was a #ista@e in the dispositive portion. ". 6here e9plicit discussion and settle#ent of the issue is found in the "ody of the decision. 6hen the dispositive part of a final order or decision is definite% clear and une-uivocal and can "e

Separate !ud$#ents.

6hen #ore than one clai# for relief is presented in an action% the court% at any sta$e% upon a deter#ination of the issues #aterial to a particular clai# and all counterclai#s arisin$ out of the transaction or occurrence which is the su"!ect #atter of the clai#% #ay render a separate !ud$#ent disposin$ of such clai#. he !ud$#ent shall ter#inate the action with respect to the clai# so disposed of and the action shall proceed as to the re#ainin$ clai#s. *n case a separate !ud$#ent is rendered% the court "y order #ay stay its enforce#ent until the rendition of a su"se-uent !ud$#ent or !ud$#ents and #ay prescri"e such conditions as #ay "e necessary to secure the "enefit thereof to the party in whose favor the !ud$#ent is rendered. (Sec. ;% Rule 0.+

Jud$#ent a$ainst entity without !uridical personality.

6hen !ud$#ent is rendered a$ainst two or #ore persons sued as an entity without !uridical personality% the !ud$#ent shall set out their individual or proper na#es% if @nown. (Sec. .% Rule 0.+

1987 Constitution% Article )***

he Conclusions of the Supre#e Court in any case su"#itted to it for decision en "anc or in division shall "e reached in consultation "efore the case is assi$ned to a 4e#"er for the writin$ of the opinion of the Court.

121 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

wholly $iven effect without the need of interpretation or reconstruction% the sa#e is considered as the !ud$#ent of the court to the e9clusion of anythin$ said in the "ody thereof. 6hat are the special for#s of !ud$#ent under the Rules and !urisprudence> 1. Jud$#ent "y default (Sec. 0% Rule 9+ &. Jud$#ent on the pleadin$s (Rule 03+ 0. Su##ary Jud$#ent (Rule 0;+ 3. Several Jud$#ent (Sec. 3% Rule 0.+ ;. Separate Jud$#ent (Sec. ;% Rule 0.+ .. Jud$#ent for Specific Acts (Sec. 1/% Rule 09+ 7. Special Jud$#ent (Sec. 11% Rule 09+ 8. Jud$#ent upon confession 9. Jud$#ent upon co#pro#ise% or on consent or a$ree#ent 1/. HClarificatoryN Jud$#ent 11. Jud$#ent nunc pro tunc. *s a !ud$#ent "y consent and a !ud$#ent "y confession the sa#e thin$> No. A *ud$'ent %y consent is one the provisions and ter#s of which are settled and a$reed upon "y the parties to the action% and which is entered in the record "y the consent of the court. here #ust "e un-ualified a$ree#ent a#on$ the parties to "e "ound "y the !ud$#ent on consent "efore said !ud$#ent #ay "e so entered and the court does not have the power to supply ter#s% provisions or essential details not previously a$reed "y the parties. A *ud$'ent %y con&ession is not a plea "ut an affir#ative and voluntary act of the defendant hi#self and the court e9ercises a certain a#ount of supervision over their su"se-uent status. 6hat #ust "e alle$ed in the an appeal fro# a !ud$#ent on co#pro#ise> 1. a party appealin$ #ust #ove to set aside the !ud$#ent on co#pro#ise &. a party appealin$ #ust also #ove to set aside or annul the co#pro#ise a$ree#ent itself. A sued :. hey reached a co#pro#ise and the court rendered a !ud$#ent on the co#pro#ise. A #oved to e9ecute !ud$#ent a$ainst C who was not a party to the suit. C files a #otion to set aside the !ud$#ent on the co#pro#ise "ecause he was not i#pleaded in the suit. C denies the #otion. *s the denial of the #otion valid> Ges. 6here a !ud$#ent "ased on a co#pro#ise is sou$ht to "e enforced a$ainst a person who was not a party thereto% he #ay file an ori$inal petition for certiorari to -uash the writ of e9ecution. 7e could not #ove to the have the co#pro#ise a$ree#ent set aside and then appeal fro# the order denyin$ his #otion since he is not a party to the co#pro#ise or the !ud$#ent therein. A petition for relief would "e an inade-uate re#edy as the e9ecution was already "ein$ carried out. (Jacinto v. 4ontesa% &8 Ce". 19.7+

Can a co#pro#ise a$ree#ent% once approved "y the court% still "e overturned "y the court> 'enerally% a co#pro#ise a$ree#ent% once approved "y the court has the force of res !udicata "etween the parties and should not "e distur"ed. 1OC1P < a. co#pro#ise was for$ed. ". there was a vice of consent in the co#pro#ise. 6hat is a !ud$#ent note> *s a !ud$#ent note reco$ni8ed in our !udicial syste#> A !ud$#ent note is a pro#issory note wherein the #a@er authori8es in advance% on warrant of attorney% a confession of !ud$#ent a$ainst hi# in the event of non2pay#ent of the note on its #aturity. here is no law in our !urisdiction which reco$ni8es a !ud$#ent note. his is considered void as "ein$ contrary to pu"lic policy% since the pro#issory "ar$ains away his day in court and this #i$ht "e a source of a"use and oppression. (PN: v. 4anila =il Refinin$% 30 Phil. 333+ 6hat is a !ud$#ent nunc pro tunc> A !ud$#ent nunc pro tunc (literally% Hnow for thenN+ is rendered to enter or record such !ud$#ent as had "een for#erly rendered "ut has not "een entered as thus rendered. *ts only function is to record so#e act of the court which was done at a for#er ti#e% "ut which was not then recorded% in order to #a@e the record spea@ the truth% without any chan$es in su"stance or in any #aterial respect. (5ichuaco v. an Pho% ;1 Phil. 8.&+ he o"!ect of a !ud$#ent nunc pro tunc is not the rendition of a new !ud$#ent and the ascertain#ent and deter#ination of new ri$hts% "ut is one placin$ in proper for# on the record the !ud$#ent that has "een previously rendered% to #a@e it spea@ the truth and there"y show what the !udicial action really was. *t #ay not "e availed of to correct !udicial errors% such as to render a !ud$#ent which the court ou$ht to have rendered in place of the one it did erroneously render or to supply non2 action "y the court however erroneous the !ud$#ent #ay have "een. (4annin$ *nternational Corp. v. N5RC% 10 4arch 1991+ 6hen is there a rendition of !ud$#ent> *t is the filin$ of the si$ned decision with the cler@ of court and not its pronounce#ent in open court that constitutes rendition of !ud$#ent. *f the decision is sent "y the !ud$e "y re$istered #ail% it is considered filed in court as of the date of its receipt "y the cler@ % and not of the date of its postin$ or #ailin$. (Sec. ;1 RA &9.+ C renders a !ud$#ent contrary to the e9press provisions of law. Adversely affected party refuses to su"#it to the e9ecution% clai#in$ that the !ud$#ent rendered was void. *s the clai# correct>

122 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

No. A !ud$#ent contrary to the e9press provisions of law is 1RR=N1=BS% "ut it is N= )=*,. =nce it "eco#es final and e9ecutory% it is "indin$ and effective% will "e enforced as a valid !ud$#ent in accordance with its dispositions. (4ercado v. CA% 1/ June 1988+ Can the validity of a !ud$#ent or order of a court "e collaterally attac@ed> 'enerally% validity of a !ud$#ent or order of a court cannot collaterally attac@ed. 1OC1P *=N< a. lac@ of !urisdiction ". irre$ularity of its entry apparent fro# the face of the record. 6hat is a #otion for clarificatory !ud$#ent> A #otion for clarificatory !ud$#ent is the re#edy where the !ud$#ent is a#"i$uous and difficult to co#ply with. 6hat is a #e#orandu# decision> *s it valid in the Philippines> Bnder Sec. 3/% :P 1&9% #e#orandu# decisions are authori8ed species of succinctly written decisions "y appellate courts for e9pediency% practicality and convenience in consideration of the doc@et status of our courts. *t has "een held that such decisions co#ply with the constitutional #andate. (=il and Natural 'as Co##ission v. CA% &8 Septe#"er 1999+ 7owever% to "e valid such #e#orandu# decision should actually e#"ody the factual findin$s and le$al conclusions in an anne9 attached to and #ade an inte$ral part of the decision. Also% such decisions should "e sparin$ly used and #ay "e resorted to only in cases where the facts are accepted in the #ain "y the parties% are easily deter#ina"le "y the !ud$e and do not involve doctrinal i#plications re-uirin$ e9tended discussion *t #ay "e e#ployed in si#ple cases where the appeal is o"viously $roundless and deserves no #ore than the ti#e to dis#iss it. (Gao v. CA% &3 =cto"er &///+ Can a transferred !ud$e still render a decision in his for#er court> A !ud$e per#anently transferred to another court of e-ual !urisdiction can render a decision on a case in his for#er court which was totally heard "y hi# and su"#itted for decision% with the parties havin$ ar$ued the case. ()alentin v. Sta. 4aria% 17 January 1973+ 6hat is a several !ud$#ent> A several !ud$#ent is proper where the lia"ility of each party is clearly separa"le and distinct fro# that of his co2parties such that the clai#s a$ainst each of the# could have "een the su"!ect of separate suits% and !ud$#ent for or a$ainst one of the# will not necessarily affect the other.

*n actions a$ainst solidary de"tors% is a several !ud$#ent proper> No. 9 utist Notes.

6hat are the traditional parts of a !ud$#ent> a. he "ody or opinion ". he decretal or dispositive portion c. he si$nature of the !ud$e. *f there is a conflict "etween the opinion and the dispositive portion% which part shall prevail> he dispositive portion shall prevail. 6hat is a Hsin per!uicioN !ud$#ent> *s it allowed in our !urisdiction> A !ud$#ent which contains the dispositive portion only and reserves the #a@in$ of findin$s in a su"se-uent !ud$#ent is @nown as a Hsin per!uicioN !ud$#ent. A Hsin per!uicioN !ud$#ent is not allowed and shall have no effect. (,i8on v. 5ope8+ *s a conditional !ud$#ent valid> No. A conditional !ud$#ent cannot e9ecuted and so#e courts say it is null and void. "e

6here the !ud$#ent is for a su# of #oney to "e deter#ined "y another court% it is co#plete !ud$#ent which can "e e9ecuted. rue or Calse. Calse. *t is an inco#plete !ud$#ent which cannot "e e9ecuted. (,:P v. anada+ 6hat is a co$novit !ud$#ent> A co$novit !ud$#ent is one rendered upon confession entered pursuant to a co$novit clause in a pro#issory not or a contract authori8in$ the holder or party upon default to confess !ud$#ent as the #a@erAs or partyAs attorney2in2fact upon the note or contract. Such @ind of a !ud$#ent is considered void in our !urisdiction for denyin$ a party his ri$ht to a day in court and his ri$ht to file counterclai#s. (PN: v. 4anila =il Refinin$% 8 June 19&&+ :ut there is no reason for invalidatin$ a co$novit provision where"y a party voluntarily waives his ri$ht to pre2!ud$#ent notice and hearin$ and such a provision #ay well serve a useful purpose in the co##ercial world. (,7 =ver#eyer Co. v. Cric@ Co. 3/; BS 173+ 6hat are the two classes of cases in which it was ori$inally held proper to enter a !ud$#ent nunc pro tunc> a. those cases in which the suitors have done all in their power to place the cause in a condition to "e decided in a court "ut in which% owin$ to the delay of the court% no final !ud$#ent has "een entered. ". hose cases in which !ud$#ent thou$h pronounced "y the court% have% fro# accident or

123 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

#ista@e of the officers of the court% never "een entered on the records of the court. *n our !urisdiction only the second class would "e appropriate for the rendition of a nunc pro tunc !ud$#ent. Rui8 v. Cane"a

)elarde v. SJS

124 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

1. 1ffect of Jud$#ent 1ffect of !ud$#ents or final orders.
he effect of a !ud$#ent or final order rendered "y a court of the Philippines% havin$ !urisdiction to pronounce the !ud$#ent or final order% #ay "e as follows<

(a+ 1es Judicata in Judgments n 1em

*n case of a !ud$#ent or final order a$ainst a specific thin$% or in respect to the pro"ate of a will% or the ad#inistration of the estate of a deceased person% or in respect to the personal% political% or le$al condition or status of a particular person or his relationship to another% the !ud$#ent or final order is conclusive upon the title to the thin$% the will or ad#inistration% or the condition% status or relationship of the personK however% the pro"ate of a will or $rantin$ of letters of ad#inistration shall only "e pri#a facie evidence of the death of the testator or intestateK

6hat is conclusiveness of !ud$#ent> 6hat are its effects> *n conclusiveness of !ud$#ent% the parties in "oth actions #ay "e the sa#e "ut the causes of action are different. 7ence% the !ud$#ent in the first is "indin$ only with respect to the #atters actually raised and ad!ud$ed therein and is not a "ar to another action "etween the sa#e parties on a different cause of action. 6hat are the re-uisites for res !udicata> a. he for#er !ud$#ent or order #ust "e FINAL. ". *t #ust "e a *ud$'ent or order on t+e 'erits% that is% it was rendered after a consideration of the evidence or stipulations su"#itted "y the parties at the trial of the case. c. *t #ust have "een rendered "y a court havin$ *urisdiction over the su"!ect #atter and the parties d. here #ust "e% "etween the first and second actions% identity o& p rties, su%*ect ' tter nd o& c use o& ction. his re-uisite is satisfied if the two actions are su"stantially "etween the sa#e parties. Cor a !ud$#ent or order to "e on the #erits% there #ust "e a trial where there is presentation and consideration of evidence. rue or Calse. Calse. Althou$h there has "een no trial or presentation and consideration of evidence therein% a dis#issal of the co#plaint under the circu#stances provided in Sec. 0% Rule 17 shall have the effect of an ad!udication of the case on the #erits% unless otherwise declared "y the court. he sa#e rule applies when the case is dis#issed for non2suit due to un!ustified failure of the plaintiff to appeal at the pre2trial of his case. (Sec. ;% Rule 17+ *s there identity of parties when co2defendant sue each other in a su"se-uent suit> No. 6here in a prior case the parties were co2defendant without any hostile or conflictin$ clai#s raised in issue or ad!udicated as "etween the#% and the second action is "etween the# as plaintiff and defendant% the !ud$#ent in the first action does not constitute res !udicata to "ar the second action as there is no identity of parties in "oth actions. ()alde8 v. 4endo8a% 89 Phil. 80+ 6hen is there identity of causes of action> 1ven if the for#s or nature of the two actions "e different% there is identity of causes of action when< a. the !ud$#ent sou$ht will "e inconsistent with the prior !ud$#ent% or ". if the sa#e evidence will sustain the second action. ,oes the doctrine of res !udicata apply where the second action is to annul the !ud$#ent in the first action>

("+ 1es Judicata in Judgments n Personam

*n other cases% the !ud$#ent or final order is% with respect to the #atter directly ad!ud$ed or as to any other #atter that could have "een raised in relation thereto% conclusive "etween the parties and their successors in interest "y title su"se-uent to the co##ence#ent of the action or special proceedin$% liti$atin$ for the sa#e thin$ and under the sa#e title and in the sa#e capacityK and

(c+ Conclusiveness o! Judgment

*n any other liti$ation "etween the sa#e parties or their successors in interest% that only is dee#ed to have "een ad!ud$ed in a for#er !ud$#ent or final order which appears upon its face to have "een so ad!ud$ed% or which was actually and necessarily included therein or necessary thereto. (Sec. 37% Rule 09+

1ffect of forei$n !ud$#ents or final orders.
he effect of a !ud$#ent or final order of a tri"unal of a forei$n country% havin$ !urisdiction to render the !ud$#ent or final order is as follows<

(a+ ;oreign Judgments in Actions in 1em

*n case of a !ud$#ent or final order upon a specific thin$% the !ud$#ent or final order is conclusive upon the title to the thin$K and

("+ ;oreign Judgments in Actions in Personam

*n case of a !ud$#ent or final order a$ainst a person% the !ud$#ent or final order is presu#ptive evidence of a ri$ht as "etween the parties and their successors in interest "y a su"se-uent title. *n either case% the !ud$#ent or final order #ay "e repelled "y evidence of a want of !urisdiction% want of notice to the party% collusion% fraud% or clear #ista@e of law or fact. (Sec. 38% Rule 09+ A co#pro#ise has upon the parties the effect and authority of res !udicataK "ut there shall "e no e9ecution 1OC1P in co#pliance with a !udicial co#pro#ise. (Art. &/07% Civil Code+

Re$ ! do Notes= 6hat is res !udicata> 6hat are its effects> *n res !udicata% the parties and the causes of action in "oth actions are identical or su"stantially the sa#e. he !ud$#ent in the first action is conclusive as to every #atter offered and received therein and as to any other #atter ad#issi"le therein and which #i$ht have "een offered for that purpose% hence it is an a"solute "ar to a su"se-uent action for the sa#e cause.

125 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

No. =ne of the re-uisites of res !udicata is that there #ust "e a for#er valid !ud$#ent. he rule of res !udicata applies to final decisions of -uasi2!udicial a$encies. rue or Calse. rue. Can a !ud$#ent of a forei$n tri"unal "e enforced "y e9ecution in the Philippines> No. Such !ud$#ent only creates a ri$ht of action and its non2satisfaction% a cause of action% and it is necessary that a suit "e "rou$ht upon said forei$n !ud$#ent in our local courts. Cilipino defendant participated as party to the forei$n !ud$#ent. Corei$n court ruled a$ainst the Cilipino defendant. Corei$ner co#plainant see@s to enforce the forei$n !ud$#ent in the ?C R C. Cilipino defendant see@s to dis#iss the action sayin$ that the forei$n !ud$#ent cannot "e enforced in the Philippines. Rule on the #otion. 4otion denied. *f the defendant had also "een a party to and actually participated in the proceedin$s in the forei$n court% he is "ound "y the !ud$#ent therein and the doctrine of res !udicata will apply to such forei$n !ud$#ent. ('eneral Corporation of the Philippines v. Bnion *nsurance Society of Canton% 07 Phil. 010+ 5ee :un in$ v. Ali$aen 6orld 4achine 1nterprises v. *AC Na"us v. CA :uan v. 5ope8 Bnited 7ousin$ v. ,ayrit Jose apia purchased a parcel of land fro# Bnited 7ousin$ Corp.% "ut no a"solute deed of sale or transfer or title was e9ecuted. apia filed a co#plaint with the 7u#an Settle#ents Re$ulatory Co##ission (now 75BR:+. A co#pro#ise was reached wherein B7C pro#ised to deliver the title. (!ud$e#ent upon co#pro#ise+ B7C failed to deliver the title to apia% so apia #oved for e9ecution "ut 75BR: forwarded the case to Prosecutor 'a"riel as a cri#inal case in violation of Sec. &; of P, 9;7. apia also filed for specific perfor#ance for e9ecution of a"solute deed of sale with the R C. B7C filed a 4 , for lac@ of !urisdiction of the R C. R C denied B7CAs 4 ,. *SSB1< 6=N a case of specific perfor#ance decided "y the 75BR: whose decisions has "eco#e final% #ay "e reliti$ated in the R C on the sa#e issue and "etween the sa#e parties> 715,< he !urisdiction for specific perfor#ance of o"li$ations filed "y the "uyers a$ainst the su"division lot owners is vested with the 7SRC% now 75BR:. he Jud$e#ent upon co#pro#ise is a

!ud$e#ent on the #erits and is conclusive upon the parties. he 75BR:V7SRC can issue a writ of e9ecution on its !ud$#ent on co#pro#ise. Since the 75BR: did not issue writ of e9ecution% apia should have filed for #anda#us. SC said the action for specific perfor#ance is untena"le. :ua8on v. CA :a$on$ :arrio and 7ousin$ Cooperative clai#ed ownership over a one2storey "uildin$. 1st CAS1< :uan8on (Pres. =f Coop+. v. 4a"alay W )illanueva *n the 4 C% an e!ect#ent case was filed a$ainst lessees in which the cooperative participated. he 4 C declared :ua8on as the owner and ordered the lessees to vacate. &nd CAS1< 4a"alayW )illanueva v. :ua8on *n the R C% a co#plaint for ownership was filed. he R C declared :ua8on as the owner and ordered old lessees to vacate. 0rd CAS1< Coop v. :ua8on and & new lessees. *n the 4 C case for unlawful detainer% the 4 C ruled for the Coop% declarin$ the Coop as the owner and orderin$ :ua8on and the new lessees to vacate. =n appeal% the R C sustained :ua8onAs defence sayin$ that there is already res !udicata with re$ard ownership of the "uildin$. CA reversed the R C and ruled that there was no res !udicata. SC held that there was no res !udicata. Coop was not a party nor was it i#pleaded as a party in the prior cases involvin$ :ua8on. Coop cannot "e "ound "y a decision it was not a party to and as such the decision is "indin$ only "etween :ua8on and 4a"alay2)illanueva. *n cases of forci"le entry and unlawful detainer% the decision of the 4 C as re$ards the title or issue of ownership is not conclusive and is only conclusive with respect to the issue of #aterial possession. Philsec *nvest#ent v. CA

12 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

Perfection of appealK effect thereof.

he perfection of the appeal and the effect thereof shall "e $overned "y the provisions of section 9% Rule 31. (Sec. 3% Rule 3/+

Perfection of appealK effect thereof. 2otice o! Appeal
A partyTs appeal "y notice o& ppe ! is dee#ed perfected as to hi# upon the filin$ of the notice of appeal in due ti#e. *n appeals "y notice of appeal% the court loses !urisdiction over the case upon the perfection of the appeals filed in due ti#e and the e9piration of the ti#e to appeal of the other parties.

No. 6hile a party can withdraw an appeal% he cannot do so in order to revive the !urisdiction of the trial court to ena"le hi# to ta@e another course of action callin$ for the e9ercise of that !urisdiction% such as the filin$ of a #otion for new trial or reconsideration. his is so "ecause "y filin$ his notice of appeal% insofar as he is concerned he has perfected his appeal to the appellate court and it is in that court where he can pursue any further re#edy. Co2defendants A and : receive an unfavoura"le !ud$#ent fro# 4anila R C. A appeals the case to the CA. :% on the other hand% files a #otion for reconsideration. Plaintiff O #oves to dis#iss :As #otion for reconsideration "ecause A had already filed an appeal% thus the 4anila R C has no #ore !urisdiction of the case. Rule on OAs #otion. 4otion denied. he rule on perfection of appeal applies indi#idu !!y and only to each of the parties so circu#stanced since the ti#eliness of their recourse to appellate re#edy depends on when the respectively received a copy of the !ud$#ent or final order. *n the #eanti#e% the trial court retains !urisdiction over the case. he C lose !urisdiction over the entire case upon the filin$ of the record of appeal. rue or Calse. Calse. A partyAs appeal "y record on appeal is dee#ed perfected as to hi# upon the approval of his record on appeal seasona"ly filed% "ut only with respect to the su"!ect #atter thereof. 6here all the parties have either perfected their appeals in such #anner or the period therefore has e9pired for those who did not do so then the trial court loses !urisdiction over the su"!ect #atter of their appeals upon the approval of their records on appeal and the e9piration of the period to do so of the other parties. *n an appeal "y record of appeal% the trial court loses !urisdiction only over the su"!ect #atter of the respective appeals of the parties "ut retains !urisdiction over the case or special proceedin$ fro# which such appeals were ta@en. his is "ecause this #ode of appeal is involved and proper in special proceedin$s wherein the possi"ility of several appeals is conte#plated% specifically fro# the various order enu#erated in Rule 1/9 which are declared appeala"le% and in civil actions where several appeals #ay li@ewise "e ta@en fro# certain aspects thereof. he lower court retains !urisdiction over the special proceedin$ or civil action% and since the ori$inal record re#ains with it for purposes of further re#edies which the parties #ay avail of% a record on appeal has to "e filed "y any appellant. 6hat is the effect of perfection of an appeal> After the perfection of the appeal "y either #ode% the trial court loses !urisdiction over the case or the su"!ect #atter involved in the appeal% as the case #ay "e. *n either instance% and "efore the trans#ittal to the appellate court of the ori$inal record or the record on appeal% the trial court still retains its so2called residual !urisdiction to issue

1ecord on Appeal

A partyTs appeal "y record on ppe ! is dee#ed perfected as to hi# with respect to the su"!ect #atter thereof upon the approval of the record on appeal filed in due ti#e. *n appeals "y record on appeal% the court loses !urisdiction only over the su"!ect #atter thereof upon the approval of the records on appeal filed in due ti#e and the e9piration of the ti#e to appeal of the other parties. *n either case% prior to the trans#ittal of the ori$inal record or the record on appeal% the court #ay issue orders for the protection and preservation of the ri$hts of the parties which do not involve any #atter liti$ated "y the appeal% approve co#pro#ises% per#it appeals of indi$ent liti$ants% order e9ecution pendin$ appeal in accordance with section & of Rule 09% and allow withdrawal of the appeal. (Sec. 9% Rule 31+

Perfection of appealK effect thereof.
(a+ Bpon the ti#ely filin$ of a petition for review and the pay#ent of the correspondin$ doc@et and other lawful fees% the appeal is dee#ed perfected as to the petitioner. he Re$ional rial Court loses !urisdiction over the case upon the perfection of the appeals filed in due ti#e and the e9piration of the ti#e to appeal of the other parties. 7owever% "efore the Court of Appeals $ives due course to the petition% the Re$ional rial Court #ay issue orders for the protection and preservation of the ri$hts of the parties which do not involve any #atter liti$ated "y the appeal% approve co#pro#ises% per#it appeals of indi$ent liti$ants% order e9ecution pendin$ appeal in accordance with section & of Rule 09% and allow withdrawal of the appeal. ("+ 19cept in civil cases decided under the Rule on Su##ary Procedure% the appeal shall stay the !ud$#ent or final order unless the Court of Appeals% the law% or these Rules shall provide otherwise. (Sec. 8% Rule 3&+

Re$ ! do Notes= 6hen is a record of appeal re-uired> A record on appeal shall "e necessary in the followin$< a. appeals in special proceedin$s as provided in Rule 1/9 ". other cases wherein #ultiple appeals are allowed. Can an appeal "y the defendant "e withdrawn to revive the !urisdiction of the trial court% to ena"le hi# to file a #otion for reconsideration>

12! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

protective orders% approve co#pro#ises% per#it appeals of indi$ent liti$ants and% to order discretionary e9ecution and to allow the withdrawal of the appeal. 1ven if the appeal has already "een perfected "ut the records have not yet "een trans#itted to the appellate court% the C still has !urisdiction to set aside its order approvin$ the record on appeal. (Ca"un$cal v. Cernande8% &/ April 19.3+ he rule is that an interlocutory order re#ains under the control of the court and can "e #odified or rescinded "efore the entry of final !ud$#ent. (5arro"is v. 6isle8e#ers% 3& Phil. 3/1+ ,oes a perfected appeal stay the challen$ed !ud$#ent or final order> 'enerally% yes. hat stay of !ud$#ent% however% is not applica"le to civil cases under the Rule on Su##ary Procedure% which as revised% provides in Sec. &1 thereof that the decision of the R C in civil cases $overned "y said rule includin$ forci"le entry and unlawful detainer cases shall "e i''edi te!y e)ecutory% without pre!udice to a further appeal that #ay "e ta@en therefro#. New Sa#pa$uita v. Canoso

Cortune 5ife and 'en. *nsurance v. CA

=ropesa v. Allied :an@

12" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA A several separate or partial !ud$#ent #ay "e e9ecuted under the sa#e ter#s and conditions as e9ecution of a !ud$#ent or final order pendin$ appeal. (Sec. &% Rule 09+

&. 19ecution and Satisfaction of Jud$#ents
he followin$ persons cannot ac-uire "y purchase% even at a pu"lic or !udicial auction% either in person or throu$h the #ediation of another< (1+ he $uardian% the property of the person or persons who #ay "e under his $uardianshipK (&+ A$ents% the property whose ad#inistration or sale #ay have "een entrusted to the#% unless the consent of the principal has "een $ivenK (0+ 19ecutors and ad#inistrators% the property of the estate under ad#inistrationK (3+ Pu"lic officers and e#ployees% the property of the State or of any su"division thereof% or of any $overn#ent2owned or controlled corporation% or institution% the ad#inistration of which has "een intrusted to the#K this provision shall apply to !ud$es and $overn#ent e9perts who% in any #anner whatsoever% ta@e part in the saleK (;+ Justices% !ud$es% prosecutin$ attorneys% cler@s of superior and inferior courts% and other officers and e#ployees connected with the ad#inistration of !ustice% the property and ri$hts in liti$ation or levied upon an e9ecution "efore the court within whose !urisdiction or territory they e9ercise their respective functionsK this prohi"ition includes the act of ac-uirin$ "y assi$n#ent and shall apply to lawyers% with respect to the property and ri$hts which #ay "e the o"!ect of any liti$ation in which they #ay ta@e part "y virtue of their profession. (.+ Any others specially dis-ualified "y law. (Art.1391% Civil Code+

Stay of discretionary e9ecution.
,iscretionary e9ecution issued under the precedin$ section ' y %e st yed upon approval "y the proper court of a sufficient supersedeas "ond filed "y the party a$ainst who# it is directed% conditioned upon the perfor#ance of the !ud$#ent or order allowed to "e e9ecuted in case it shall "e finally sustained in whole or in part. he "ond thus $iven #ay "e proceeded a$ainst on #otion with notice to the surety. (Sec. 0% Rule 09+

Jud$#ents not stayed "y appeal.
Jud$#ents in actions for 1. in!unction% &. receivership% 0. accountin$ and 3. support% and ;. such other !ud$#ents as are now or #ay hereafter "e declared to "e i##ediately e9ecutory% s+ !! %e en&orce %!e &ter t+eir rendition nd s+ !! not %e st yed %y n ppe ! t (en t+ere&ro' % unless otherwise ordered "y the trial court. =n appeal therefro#% the appellate court in its discretion #ay #a@e an order suspendin$% #odifyin$% restorin$ or $rantin$ the in!unction% receivership% accountin$% or award of support. he stay of e9ecution shall "e upon such ter#s as to "ond or otherwise as #ay "e considered proper for the security or protection of the ri$hts of the adverse party. (Sec. 3% Rule 09+

Rule 09 19ecution upon !ud$#ents or final orders.
19ecution shall issue as a ' tter o& ri$+t% on #otion% upon a !ud$#ent or order that disposes of the action or proceedin$ upon the e9piration of the period to appeal therefro# if no appeal has "een duly perfected. *f the appeal has "een duly perfected and finally resolved% the e9ecution #ay forthwith "e applied for in the court of ori$in% on 'otion o& t+e *ud$'ent o%!i$ee % su"#ittin$ therewith certified true copies of the !ud$#ent or !ud$#ents or final order or orders sou$ht to "e enforced and of the entry thereof% with notice to the adverse party. he appellate court #ay% on #otion in the sa#e case% when the interest of !ustice so re-uires% direct the court of ori$in to issue the writ of e9ecution. (Sec. 1% Rule 09+

1ffect of reversal of e9ecuted !ud$#ent.
6here the e9ecuted !ud$#ent is reversed totally or partially% or annulled% on appeal or otherwise% the trial court #ay% on #otion% issue such orders of restitution or reparation of da#a$es as e-uity and !ustice #ay warrant under the circu#stances. (Sec. ;% Rule 09+

19ecution "y #otion or "y independent action.

,iscretionary e9ecution. (a+ Execution o! a judgment or !inal order pending appeal.

A final and e9ecutory !ud$#ent or order #ay "e e9ecuted on 'otion within five (;+ years fro# the date of its entry. After the lapse of such ti#e% and "efore it is "arred "y the statute of li#itations% a !ud$#ent #ay "e enforced "y ction. he re#i#ed *ud$'ent #ay also "e enforced "y #otion within five (;+ years fro# the date of its entry and thereafter "y action "efore it is "arred "y the statute of li#itations. (Sec. .% Rule 09+

=n #otion of the prevailin$ party will notice to the adverse party filed in the trial court while it has !urisdiction over the case and is in possession of either the ori$inal record or the record on appeal% as the case #ay "e% at the ti#e of the filin$ of such #otion% said court #ay% in its discretion% order e9ecution of a !ud$#ent or final order even "efore the e9piration of the period to appeal. After the trial court has lost !urisdiction% the #otion for e9ecution pendin$ appeal #ay "e filed in the appellate court. ,iscretionary e9ecution #ay only issue upon $ood reasons to "e stated in a special order after due hearin$.

19ecution in case of death of party.

("+ Execution o! several& separate or partial judgments'

*n case of the death of party% e9ecution #ay issue or "e enforced in the followin$ #anner< (a+ *n case of the de t+ o& t+e *ud$'ent o%!i$ee% upon the application of his e9ecutor or ad#inistrator% or successor in interestK ("+ *n case of the de t+ o& t+e *ud$'ent o%!i$or % a$ainst his e9ecutor or ad#inistrator or successor in interest% if the !ud$#ent "e for the recovery of real or personal property% or the enforce#ent of the lien thereonK (c+ *n case of the de t+ o& t+e *ud$'ent o%!i$or % after e9ecution is actually levied upon any of his property% the sa#e #ay "e sold for the satisfaction of the !ud$#ent o"li$ation% and the officer #a@in$ the sale shall account to

129 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 the correspondin$ e9ecutor or ad#inistrator for any surplus in his hands.

JONATHAN PAMPOLINA !ud$#ent. he e9cess% if any% shall "e delivered to the !ud$#ent o"li$or while the lawful fees shall "e retained "y the cler@ of court for disposition as provided "y law. *n no case shall the e9ecutin$ sheriff de#and that any pay#ent "y chec@ "e #ade paya"le to hi#. (Sec. 9% Rule 09+

*ssuance% for# and contents of a writ of e9ecution.
he writ of e9ecution shall< (1+ issue in the na#e of the Repu"lic of the Philippines fro# the court which $ranted the #otionK (&+ state the na#e of the court% the case nu#"er and title% the dispositive part of the su"!ect !ud$#ent or orderK and (0+ re-uire the sheriff or other proper officer to who# it is directed to enforce the writ accordin$ to its ter#s% in the #anner herein after provided< (a+ *f the e9ecution "e a$ainst the property of the !ud$#ent o"li$or% to satisfy the !ud$#ent% with interest% out of the real or personal property of such !ud$#ent o"li$orK ("+ *f it "e a$ainst real or personal property in the hands of personal representatives% heirs% devisees% le$atees% tenants% or trustees of the !ud$#ent o"li$or% to satisfy the !ud$#ent% with interest% out of such propertiesK (c+ *f it "e for the sale of real or personal property% to sell such property% descri"in$ it% and apply the proceeds in confor#ity with the !ud$#ent% the #aterial parts of which shall "e recited in the writ of e9ecutionK (d+ *f it "e for the delivery of the possession of real or personal property% to deliver the possession of the sa#e% descri"in$ it% to the party entitled thereto% and to satisfy any costs% da#a$es% rents% or profits covered "y the !ud$#ent out of the personal property of the person a$ainst who# it was rendered% and if sufficient personal property cannot "e found% then out of the real propertyK and (e+ *n all cases% the writ of e9ecution shall specifically state the a#ount of the interest% costs% da#a$es% rents% or profits due as of the date of the issuance of the writ% aside fro# the principal o"li$ation under the !ud$#ent. Cor this purpose% the #otion for e9ecution shall specify the a#ounts of the fore$oin$ reliefs sou$ht "y the #ovant. (Sec. 8% Rule 09+

("+ Satis!action b" lev".

*f the !ud$#ent o"li$or cannot pay all or part of the o"li$ation in cash% certified "an@ chec@ or other #ode of pay#ent accepta"le to the !ud$#ent o"li$ee% the officer shall levy upon the properties of the !ud$#ent o"li$or of every @ind and nature whatsoever which #ay "e disposed of for value and not otherwise e9e#pt fro# e9ecution $ivin$ the latter the option to i##ediately choose which property or part thereof #ay "e levied upon% sufficient to satisfy the !ud$#ent. *f the !ud$#ent o"li$or does not e9ercise the option% the officer shall first levy on the personal properties% if any% and then on the real properties if the personal properties are insufficient to answer for the !ud$#ent. he sheriff shall sell only a sufficient portion of the personal or real property of the !ud$#ent o"li$or which has "een levied upon. 6hen there is #ore property of the !ud$#ent o"li$or than is sufficient to satisfy the !ud$#ent and lawful fees% he #ust sell only so #uch of the personal or real property as is sufficient to satisfy the !ud$#ent and lawful fees. Real property% stoc@s% shares% de"ts% credits% and other personal property% or any interest in either real or personal property% #ay "e levied upon in li@e #anner and with li@e effect as under a writ of attach#ent. (Sec. 9% Rule 09+

(c+ Garnishment o! debts and credits.

19ecution of *ud$'ents &or 'oney% how enforced. (a+ mmediate pa"ment on demand'

he officer shall enforce an e9ecution of a !ud$#ent for #oney "y de#andin$ fro# the !ud$#ent o"li$or the i##ediate pay#ent of the full a#ount stated in the writ of e9ecution and all lawful fees. he !ud$#ent o"li$or shall pay in cash% certified "an@ chec@ paya"le to the !ud$#ent o"li$ee or his authori8ed representative if present at the ti#e of pay#ent. he lawful fees shall "e handed under proper receipt to the e9ecutin$ sheriff who shall turn over the said a#ount within the sa#e day to the cler@ of court of the court that issued the writ. *f the !ud$#ent o"li$ee or his authori8ed representative is not present to receive pay#ent% the !ud$#ent o"li$or shall deliver the aforesaid pay#ent to the e9ecutin$ sheriff. he latter shall turn over all the a#ounts co#in$ into his possession within the sa#e day to the cler@ of court of the court that issued the writ% or if the sa#e is not practica"le% deposit said a#ount to a fiduciary account in the nearest $overn#ent depository "an@ of the Re$ional rial Court of the locality. he cler@ of court shall thereafter arran$e for the re#ittance of the deposit to the account of the court that issued the writ whose cler@ of court shall then deliver said pay#ent to the !ud$#ent o"li$ee in satisfaction of the

he officer #ay levy on de"ts due the !ud$#ent o"li$or and other credits% includin$ "an@ deposits% financial interests% royalties% co##issions and other personal property not capa"le of #anual delivery in the possession or control of third parties. 5evy shall "e #ade "y servin$ notice upon the person owin$ such de"ts or havin$ in his possession or control such credits to which the !ud$#ent o"li$or is entitled. he $arnish#ent shall cover only such a#ount as will satisfy the !ud$#ent and all lawful fees. he $arnishee shall #a@e a written report to the court within five (;+ days fro# service of the notice of $arnish#ent statin$ whether or not the !ud$#ent o"li$or has sufficient funds or credits to satisfy the a#ount of the !ud$#ent. *f not% the report shall state how #uch funds or credits the $arnishee holds for the !ud$#ent o"li$or. he $arnished a#ount in cash% or certified "an@ chec@ issued in the na#e of the !ud$#ent o"li$ee% shall "e delivered directly to the !ud$#ent o"li$ee within ten (1/+ wor@in$ days fro# service of notice on said $arnishin$ re-uirin$ such delivery% e9cept the lawful fees which shall "e paid directly to the court. *n the event there are two or #ore $arnishees holdin$ deposits or credits sufficient to satisfy the !ud$#ent% the !ud$#ent o"li$or% if availa"le% shall have the ri$ht to indicate the $arnishee or $arnishees who shall "e re-uired to deliver the a#ount dueK otherwise% the choice shall "e #ade "y the !ud$#ent o"li$ee. he e9ecutin$ sheriff shall o"serve the sa#e procedure under para$raph (a+ with respect to delivery of pay#ent to the !ud$#ent o"li$ee. (Sec. 9% Rule 09+

19ecution of !ud$#ents for specific act.

130 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA su"!ect to liens and encu#"rances then e9istin$. (Sec. 1&% Rule 09+

(a+ Conve"ance& deliver" o! deeds& or other speci!ic actsB vesting title.
*f a !ud$#ent directs a party who e9ecute a conveyance of land or personal property% or to deliver deeds or other docu#ents% or to perfor# any other specific act in connection therewith% and the party fails to co#ply within the ti#e specified% the court #ay direct the act to "e done at the cost of the diso"edient party "y so#e other person appointed "y the court and the act when so done shall have li@e effect as if done "y the party. *f real or personal property is situated within the Philippines% the court in lieu of directin$ a conveyance thereof #ay "e an order divest the title of any party and vest it in others% which shall have the force and effect of a conveyance e9ecuted in due for# of law. (Sec. 1/% Rule 09+

Property e9e#pt fro# e9ecution.
19cept as otherwise e9pressly provided "y law% the followin$ property% and no other% shall "e e9e#pt fro# e9ecution< (a+ he !ud$#ent o"li$orTs & 'i!y +o'e as provided "y law% or the ho#estead in which he resides% and land necessarily used in connection therewithK ("+ Ordin ry too!s nd i'p!e'ents personally used "y hi# in his trade% e#ploy#ent% or livelihoodK (c+ hree horses% or three cows% or three cara"aos% or other %e sts o& %urden such as the !ud$#ent o"li$or #ay select necessarily used "y hi# in his ordinary occupationK (d+ 7is necess ry c!ot+in$ nd rtic!es &or ordin ry person ! use, e)c!udin$ *e"e!ryK (e+ Fouse+o!d &urniture nd utensi!s necess ry &or +ouse(eepin$% and used for that purpose "y the !ud$#ent o"li$or and his fa#ily% such as the !ud$#ent o"li$or #ay select% of a value not e9ceedin$ one hundred thousand pesosK (f+ Pro#isions &or indi#idu ! or & 'i!y use su&&icient &or &our 'ont+sK ($+ he pro&ession ! !i%r ries nd e-uip'ent of !ud$es% lawyers% physicians% phar#acists% dentists% en$ineers% surveyors% cler$y#en% teachers% and other professionals% not e9ceedin$ three hundred thousand pesos in valueK (h+ One &is+in$ %o t nd ccessories not e9ceedin$ the total value of one hundred thousand pesos owned "y a fisher#an and "y the lawful use of which he earns his livelihoodK (i+ So #uch of the salaries% wa$es% or earnin$s of the !ud$#ent o"li$or of his personal services "it+in t+e &our 'ont+s precedin$ t+e !e#y s re necess ry &or t+e support o& +is & 'i!yK (!+ Lettered $r #estonesK (@+ Conies %ene&its, pri#i!e$es, or nnuities ccruin$ or in ny ' nner $ro"in$ out o& ny !i&e insur nce K (l+ he ri$ht to receive !e$ ! support% or #oney or property o"tained as such support% or any pension or $ratuity fro# the 'overn#entK (#+ Properties speci !!y e)e'pt %y ! ". :ut no article or species of property #entioned in his section shall "e e9e#pt fro# e9ecution issued upon a !ud$#ent recovered for its price or upon a !ud$#ent of foreclosure of a #ort$a$e thereon. (Sec. 10% Rule 09+

("+ Sale o! real or personal propert"

*f the !ud$#ent "e for the sale of real or personal property% to sell such property% descri"in$ it% and apply the proceeds in confor#ity with the !ud$#ent. (Sec. 1/% Rule 09+

(c+ )eliver" or restitution o! real propert"

he officer shall de#and of the person a$ainst who# the !ud$#ent for the delivery or restitution of real property is rendered and all person clai#in$ ri$hts under hi# to peacea"ly vacate the property within three (0+ wor@in$ days% and restore possession thereof to the !ud$#ent o"li$eeK otherwise% the officer shall oust and such persons therefro# with the assistance% if necessary of appropriate peace officers% and e#ployin$ such #eans as #ay "e reasona"ly necessary to reta@e possession% and place the !ud$#ent o"li$ee in possession of such property. Any costs% da#a$es% rents or profits awarded "y the !ud$#ent shall "e satisfied in the sa#e #anner as a !ud$#ent for #oney. (Sec. 1/% Rule 09+

(d+ 1emoval o! improvements on propert" subject o! execution

6hen the property su"!ect of the e9ecution contains i#prove#ents constructed or planted "y the !ud$#ent o"li$or or his a$ent% the officer shall not destroy% de#olish or re#ove said i#prove#ents e9cept upon special order of the court issued upon #otion of the !ud$#ent o"li$ee after due hearin$ and after the for#er has failed to re#ove the sa#e within a reasona"le ti#e fi9ed "y the court. (Sec. 1/% Rule 09+

(e+ )eliver" o! personal propert"

Return of writ of e9ecution.

*n !ud$#ents for the delivery of personal property% the officer shall ta@e possession of the sa#e and forthwith deliver it to the party entitled thereto and satisfy any !ud$#ent for #oney as therein provided. (Sec. 1/% Rule 09+

19ecution of special !ud$#ents.

6hen a !ud$#ent re-uires the perfor#ance of any act other than those #entioned in the two precedin$ sections% a certified copy of the !ud$#ent shall "e attached to the writ of e9ecution and shall "e served "y the officer upon the party a$ainst who# the sa#e is rendered% or upon any other person re-uired there"y% or "y law% to o"ey the sa#e% and such party or person #ay "e punished for conte#pt if he diso"eys such !ud$#ent. (Sec. 11% Rule 09+

he writ of e9ecution shall "e returna"le to the court issuin$ it i##ediately after the !ud$#ent has "een satisfied in part or in full. *f the !ud$#ent cannot "e satisfied in full within thirty (0/+ days after his receipt of the writ% the officer shall report to the court and state the reason therefor. Such writ shall continue in effect durin$ the period within which the !ud$#ent #ay "e enforced "y #otion. he officer shall #a@e a report to the court every thirty (0/+ days on the proceedin$s ta@en thereon until the !ud$#ent is satisfied in full% or its effectivity e9pires. he returns or periodic reports shall set forth the whole of the proceedin$s ta@en% and shall "e filed with the court and copies thereof pro#ptly furnished the parties. (Sec. 13% Rule 09+

1ffect of levy on e9ecution as to third persons.

Notice of sale of property on e9ecution.
:efore the sale of property on e9ecution% notice thereof #ust "e $iven as follows<

he levy on e9ecution shall create a lien in favor of the !ud$#ent o"li$ee over the ri$ht% title and interest of the !ud$#ent o"li$or in such property at the ti#e of the levy%

131 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 (a+ *n case of peris+ %!e property% "y postin$ written notice of the ti#e and place of the sale in three (0+ pu"lic places% prefera"ly in conspicuous areas of the #unicipal or city hall% post office and pu"lic #ar@et in the #unicipality or city where the sale is to ta@e place% for such ti#e as #ay "e reasona"le% considerin$ the character and condition of the propertyK ("+ *n case of ot+er person ! property% "y postin$ a si#ilar notice in the three (0+ pu"lic places a"ove2 #entioned for not less than five (;+ daysK (c+ *n case of re ! property% "y postin$ for twenty (&/+ days in the three (0+ pu"lic places a"ove2#entioned a si#ilar notice particularly descri"in$ the property and statin$ where the property is to "e sold% and if the assessed value of the property e9ceeds fifty thousand (P;/%///.//+ pesos% "y pu"lishin$ a copy of the notice once a wee@ for two (&+ consecutive wee@s in one newspaper selected "y raffle% whether in 1n$lish% Cilipino% or any #a!or re$ional lan$ua$e pu"lished% edited and circulated or% in the a"sence thereof% havin$ $eneral circulation in the province or cityK (d+ *n !! c ses% written notice of the sale shall "e $iven to the !ud$#ent o"li$or% at least three (0+ days "efore the sale% e9cept as provided in para$raph (a+ hereof where notice shall "e $iven at any ti#e "efore the sale% in the sa#e #anner as personal service of pleadin$s and other papers as provided "y Section . of Rule 10. he notice shall specify the place% date and e9act ti#e of the sale which should not "e earlier than nine oTcloc@ in the #ornin$ and not later than two oTcloc@ in the afternoon. he place of the sale #ay "e a$reed upon "y the parties. *n the a"sence of such a$ree#ent% the sale of real property or personal property not capa"le of #anual delivery shall "e held in the office of the cler@ of court of the Re$ional rial Court or the 4unicipal rial Court which issued the writ or which was desi$nated "y the appellate court. *n the case of personal property capa"le of #anual delivery% the sale shall "e held in the place where the property is located. (Sec. 1;% Rule 09+

JONATHAN PAMPOLINA action a$ainst a third2party clai#ant who filed a frivolous or plainly spurious clai#. 6hen the writ of e9ecution is issued in favor of the Repu"lic of the Philippines% or any officer duly representin$ it% the filin$ of such "ond shall not "e re-uired% and in case the sheriff or levyin$ officer is sued for da#a$es as a result of the levy% he shall "e represented "y the Solicitor 'eneral and if held lia"le therefor% the actual da#a$es ad!ud$ed "y the court shall "e paid "y the National reasurer out of such funds as #ay "e appropriated for the purpose. (Sec. 1.% Rule 09+

Penalty for sellin$ without notice% or re#ovin$ or defacin$ notice.
An officer sellin$ without the notice prescri"ed "y section 1; of this Rule shall "e lia"le to pay punitive da#a$es in the a#ount of five thousand (P;%///.//+ pesos to any person in!ured there"y% in addition to his actual da#a$es% "oth to "e recovered "y #otion in the sa#e actionK and a person willfully re#ovin$ or defacin$ the notice posted% if done "efore the sale% or "efore the satisfaction of the !ud$#ent if it "e satisfied "efore the sale% shall "e lia"le to pay five thousand (P;%///.///+ pesos to any person in!ured "y reason thereof% in addition to his actual da#a$es% to "e recovered "y #otion in the sa#e action. (Sec. 17% Rule 09+

No sale if !ud$#ent and costs paid.

At any ti#e %e&ore t+e s !e o& property on e)ecution% the !ud$#ent o"li$or #ay prevent the sale "y payin$ the a#ount re-uired "y the e9ecution and the costs that have "een incurred therein. (Sec. 18% Rule 09+

7ow property sold on e9ecutionK who #ay direct #anner and order of sale.
All sales of property under e9ecution #ust "e #ade at pu%!ic uction% to the hi$hest "idder% to start at the e9act ti#e fi9ed in the notice. After su&&icient property + s %een so!d to s tis&y t+e e)ecution % no #ore shall "e sold and any e9cess property or proceeds of the sale shall "e pro#ptly delivered to the !ud$#ent o"li$or or his authori8ed representative% unless otherwise directed "y the !ud$#ent or order of the court. W+en t+e s !e is o& re ! property % consistin$ of several @nown lots% they #ust "e sold separatelyK or% when a portion of such real property is clai#ed "y a third person% he #ay re-uire it to "e sold separately. W+en t+e s !e is o& person ! property c p %!e o& ' nu ! de!i#ery % it #ust "e sold within view of those attendin$ the sa#e and in such parcels as are li@ely to "rin$ the hi$hest price. he !ud$#ent o"li$or% if present at the sale% #ay direct the order in which property% real or personal% shall "e sold% when such property consists of several @nown lots or parcels which can "e sold to advanta$e separately. Neither the officer conductin$ the e9ecution sale% nor his deputies% can "eco#e a purchaser% nor "e interested directly or indirectly in any purchase at such sale. (Sec. 19% Rule 09+

Proceedin$s where property clai#ed "y third person.

*f the property levied on is clai#ed "y any person other than the !ud$#ent o"li$or or his a$ent% and such person #a@es an affidavit of his title thereto or ri$ht to the possession thereof% statin$ the $rounds of such ri$ht or title% and serves the sa#e upon the officer #a@in$ the levy and a copy thereof upon the !ud$#ent o"li$ee% the officer shall not "e "ound to @eep the property% unless such !ud$#ent o"li$ee% on de#and of the officer% files a "ond approved "y the court to inde#nify the third2party clai#ant in a su# not less than the value of the property levied on. *n case of disa$ree#ent as to such value% the sa#e shall "e deter#ined "y the court issuin$ the writ of e9ecution. No clai# for da#a$es for the ta@in$ or @eepin$ of the property #ay "e enforced a$ainst the "ond unless the action therefor is filed within one hundred twenty (1&/+ days fro# the date of the filin$ of the "ond. he officer shall not "e lia"le for da#a$es for the ta@in$ or @eepin$ of the property% to any third2party clai#ant if such "ond is filed. Nothin$ herein contained shall prevent such clai#ant or any third person fro# vindicatin$ his clai# to the property in a separate action% or prevent the !ud$#ent o"li$ee fro# clai#in$ da#a$es in the sa#e or a separate

Refusal of purchaser to pay.

*f a purchaser refuses to pay the a#ount "id "y hi# for property struc@ off to hi# at a sale under e9ecution% the officer #ay a$ain sell the property to the hi$hest "idder and shall not "e responsi"le for any loss occasioned there"yK

132 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 "ut the court #ay order the refusin$ purchaser to pay into the court the a#ount of such loss% with costs% and #ay punish hi# for conte#pt if he diso"eys the order. he a#ount of such pay#ent shall "e for the "enefit of the person entitled to the proceeds of the e9ecution% unless the e9ecution has "een fully satisfied% in which event such proceeds shall "e for the "enefit of the !ud$#ent o"li$or. he officer #ay thereafter re!ect any su"se-uent "id of such purchaser who refuses to pay. (Sec. &/% Rule 09+

JONATHAN PAMPOLINA

Certificate of sale where property clai#ed "y third person.
6hen a property sold "y virtue of a writ of e9ecution has "een clai#ed "y a third person% the certificate of sale to "e issued "y the sheriff pursuant to sections &0% &3 and &; of this Rule shall #a@e e9press #ention of the e9istence of such third2party clai#. (Sec. &.% Rule 09+

6ho #ay redee# real property so sold.
Real property sold as provided in the last precedin$ section% or any part thereof sold separately% #ay "e redee#ed in the #anner hereinafter provided% "y the followin$ persons< (a+ he *ud$'ent o%!i$or, or +is successor in interest in the whole or any part of the propertyK ("+ A creditor + #in$ !ien %y #irtue o& n tt c+'ent, *ud$'ent or 'ort$ $e on t+e property sold% or on so#e part thereof% su"se-uent to the lien under which the property was sold. Such redee#in$ creditor is ter#ed a rede#ptioner. (Sec. &7% Rule 09+

Jud$#ent o"li$ee as purchaser.

6hen the purchaser is the !ud$#ent o"li$ee% and no third2party clai# has "een filed% he need not pay the a#ount of the "id if it does not e9ceed the a#ount of his !ud$#ent. *f it does% he shall pay only the e9cess. (Sec. &1% Rule 09+

Ad!ourn#ent of sale.

:y written consent of the !ud$#ent o"li$or and o"li$ee% or their duly authori8ed representatives% the officer ' y d*ourn t+e s !e to ny d te nd ti'e $reed upon %y t+e'. 6ithout such a$ree#ent% +e ' y d*ourn t+e s !e &ro' d y to d y if it "eco#es necessary to do so for lac@ of ti#e to co#plete the sale on the day fi9ed in the notice or the day to which it was ad!ourned. (Sec. &&% Rule 09+

i#e and #anner of% and a#ounts paya"le on% successive rede#ptionsK notice to "e $iven and filed.
he !ud$#ent o"li$or% or rede#ptioner% #ay redee# the property fro# the purchaser% a. at any ti#e within one (1+ year fro# the date of the re$istration of the certificate of sale% ". "y payin$ the purchaser the a#ount of his purchase% with one per centu# per #onth interest thereon in addition% up to the ti#e of rede#ption% c. to$ether with the a#ount of any assess#ents or ta9es which the purchaser #ay have paid thereon after purchase% and interest on such last na#ed a#ount at the sa#e rateK d. and if the purchaser "e also a creditor havin$ a prior lien to that of the rede#ptioner% other than the !ud$#ent under which such purchase was #ade% the a#ount of such other lien% with interest. Property so redee#ed #ay a$ain "e redee#ed a. within si9ty (./+ days after the last rede#ption ". upon pay#ent of the su# paid on the last rede#ption% with two per centu# thereon in addition% and c. the a#ount of any assess#ents or ta9es which the last rede#ptioner #ay have paid thereon after rede#ption "y hi#% with interest on such last2na#ed a#ount% and d. in addition% the a#ount of any liens held "y said last rede#ptioner prior to his own% with interest. he property #ay "e a$ain% and as often as a rede#ptioner is so disposed% redee#ed fro# any previous rede#ptioner a. within si9ty (./+ days after the last rede#ption% ". on payin$ the su# paid on the last previous rede#ption% with two per centu# thereon in addition% and c. the a#ounts of any assess#ents or ta9es which the last previous rede#ptioner paid after the rede#ption thereon% with interest thereon% and d. the a#ount of any liens held "y the last rede#ptioner prior to his own% with interest. 6ritten notice of any rede#ption #ust "e $iven to the officer who #ade the sale and a duplicate filed with the re$istry of deeds of the place% and if any assess#ents or ta9es are paid "y the rede#ptioner or if he has or ac-uires any lien other than that upon which the rede#ption was #ade% notice thereof #ust in li@e #anner "e $iven to the officer and filed with the re$istry of deedsK if such notice "e not filed% the property #ay "e redee#ed without payin$ such assess#ents% ta9es% or liens. (Sec. &8% Rule 09+

Conveyance to purchaser of person ! property c p %!e o& ' nu ! de!i#ery.
6hen the purchaser of any personal property% capa"le of #anual delivery% pays the purchase price% the officer #a@in$ the sale #ust de!i#er t+e property to t+e purc+ ser and% if desired% e9ecute and deliver to hi# a certificate of sale. he sale conveys to the purchaser all the ri$hts which the !ud$#ent o"li$or had in such property as of the date of the levy on e9ecution or preli#inary attach#ent. (Sec. &0% Rule 09+

Conveyance to purchaser of person ! property not c p %!e o& ' nu ! de!i#ery.
6hen the purchaser of any personal property% not capa"le of #anual delivery% pays the purchase price% the officer #a@in$ the sale #ust e)ecute nd de!i#er to t+e purc+ ser certi&ic te o& s !e . Such certificate conveys to the purchaser all the ri$hts which the !ud$#ent o"li$or had in such property as of the date of the levy on e9ecution or preli#inary attach#ent. (Sec. &3% Rule 09+

Con#ey nce o& re ! propertyK certificate thereof $iven to purchaser and filed with re$istry of deeds.
Bpon a sale of real property% the officer #ust $ive to the purchaser a certi&ic te o& s !e containin$< (a+ A particular description of the real property soldK ("+ he price paid for each distinct lot or parcelK (c+ he whole price paid "y hi#K (d+ A state#ent that the ri$ht of rede#ption e9pires one (1+ year fro# the date of the re$istration of the certificate of sale. Such certificate #ust "e re$istered in the re$istry of deeds of the place where the property is situated. (Sec. &;% Rule 09+

133 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

1ffect of rede'ption %y *ud$'ent o%!i$or% and a certificate to "e delivered and recorded thereuponK to who# pay#ents on rede#ption #ade.

,eed and possession to "e $iven at e9piration of rede#ption periodK "y who# e9ecuted or $iven.
a. *f no rede#ption "e #ade within one (1+ year fro# the date of the re$istration of the certificate of sale% the purchaser is entitled to a conveyance and possession of the propertyK or% ". if so redee#ed whenever si9ty (./+ days have elapsed and no other rede#ption has "een #ade% and notice thereof $iven% and the ti#e for rede#ption has e9pired% the last rede#ptioner is entitled to the conveyance and possessionK "ut in all cases the !ud$#ent o"li$or shall have the entire period of one (1+ year fro# the date of the re$istration of the sale to redee# the property. he deed shall "e e9ecuted "y the officer #a@in$ the sale or "y his successor in office% and in the latter case shall have the sa#e validity as thou$h the officer #a@in$ the sale had continued in office and e9ecuted it. Bpon the e9piration of the ri$ht of rede#ption% the purchaser or rede#ptioner shall "e su"stituted to and ac-uire all the ri$hts% title% interest and clai# of the !ud$#ent o"li$or to the property as of the ti#e of the levy. he possession of the property shall "e $iven to the purchaser or last rede#ptioner "y the sa#e officer unless a third party is actually holdin$ the property adversely to the !ud$#ent o"li$or. (Sec. 00% Rule 09+

*f the !ud$#ent o"li$or redee#s% he #ust #a@e the sa#e pay#ents as are re-uired to effect a rede#ption "y a rede#ptioner% "+ereupon, no &urt+er rede'ption s+ !! %e !!o"ed nd +e is restored to +is est te. he person to who# the rede#ption pay#ent is #ade #ust e9ecute and deliver to hi# a certi&ic te o& rede'ption ac@nowled$ed "efore a notary pu"lic or other officer authori8ed to ta@e ac@nowled$#ents of conveyances of real property. Such certificate #ust "e filed and recorded in the re$istry of deeds of the place in which the property is situated% and the re$istrar of deeds #ust note the record thereof on the #ar$in of the record of the certificate of sale. he pay#ents #entioned in this and the last precedin$ sections #ay "e #ade to the purchaser or rede#ptioner% or for hi# to the officer who #ade the sale. (Sec. &9% Rule 09+

Proof re-uired of rede#ptioner.

A rede#ptioner #ust produce to the officer% or person fro# who# he see@s to redee#% and serve with his notice to the officer 1. a copy of the !ud$#ent or final order under which he clai#s the ri$ht to redee#% certified "y the cler@ of the court wherein the !ud$#ent or final order is enteredK or% &. if he redee#s upon a #ort$a$e or other lien% a #e#orandu# of the record thereof% certified "y the re$istrar of deedsK or 0. an ori$inal or certified copy of any assi$n#ent necessary to esta"lish his clai#K and an affidavit e9ecuted "y hi# or his a$ent% showin$ the a#ount then actually due on the lien. (Sec. 0/% Rule 09+

Recovery of price if sale not effectiveK revival of !ud$#ent.

4anner of usin$ pre#ises pendin$ rede#ptionK waste restrained.
Bntil the e9piration of the ti#e allowed for rede#ption% the court #ay% as in other proper cases% restrain the co##ission of waste on the property "y in!unction% on the application of the purchaser or the !ud$#ent o"li$ee% with or without noticeK "ut it is not " ste for a person in possession of the property at the ti#e of the sale% or entitled to possession afterwards% durin$ the period allowed for rede#ption% a. to continue to use it in the sa#e #anner in which it was previously usedK or ". to use it in the ordinary course of hus"andryK or c. to #a@e the necessary repairs to "uildin$s thereon while he occupies the property. (Sec. 01% Rule 09+

A. *f the purchaser of real property sold on e9ecution% or his successor in interest% fails to recover the possession thereof% or :. is evicted therefro#% in conse-uence of irre$ularities in the proceedin$s concernin$ the sale% or C. "ecause the !ud$#ent has "een reversed or set aside% or ,. "ecause the property sold was e9e#pt fro# e9ecution% or 1. "ecause a third person has vindicated his clai# to the property% he #ay on #otion in the sa#e action or in a separate action recover fro# the !ud$#ent o"li$ee the price paid% with interest% or so #uch thereof as has not "een delivered to the !ud$#ent o"li$orK or he #ay% on #otion% have the ori$inal !ud$#ent revived in his na#e for the whole price with interest% or so #uch thereof as has "een delivered to the !ud$#ent o"li$or. he !ud$#ent so revived shall have the sa#e force and effect as an ori$inal !ud$#ent would have as of the date of the revival and no #ore. (Sec. 03% Rule 09+

Ri$ht to contri"ution or rei#"urse#ent.
6hen property lia"le to an e9ecution a$ainst several persons is sold thereon% and #ore than a due proportion of the !ud$#ent is satisfied out of the proceeds of the sale of the property of one of the#% or one of the# pays% without a sale% #ore than his proportion% he #ay co#pel a contri"ution fro# the othersK and when a !ud$#ent is upon an o"li$ation of one of the#% as security for another% and the surety pays the a#ount% or any part thereof% either "y sale of his property or "efore sale% he #ay co#pel repay#ent fro# the principal. (Sec. 0;% Rule 09+

Rents% earnin$s and inco#e of property pendin$ rede#ption.

he purchaser or a rede#ptioner shall not "e entitled to receive the rents% earnin$s and inco#e of the property sold on e9ecution% or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents% earnin$s and inco#e derived fro# the property pendin$ rede#ption s+ !! %e!on$ to t+e *ud$'ent o%!i$or until the e9piration of his period of rede#ption. (Sec. 0&% Rule 09+

19a#ination of !ud$#ent o"li$or when !ud$#ent unsatisfied.
6hen the return of a writ of e9ecution issued a$ainst property of a !ud$#ent o"li$or% or any one of

134 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 several o"li$ors in the sa#e !ud$#ent% shows that the !ud$#ent re#ains unsatisfied% in whole or in part% the !ud$#ent o"li$ee% at any ti#e after such return is #ade% shall "e entitled to an order fro# the court which rendered the said !ud$#ent% re-uirin$ such !ud$#ent o"li$or to appear and "e e9a#ined concernin$ his property and inco#e "efore such court or "efore a co##issioner appointed "y it% at a specified ti#e and placeK and proceedin$s #ay thereupon "e had for the application of the property and inco#e of the !ud$#ent o"li$or towards the satisfaction of the !ud$#ent. :ut no !ud$#ent o"li$or shall "e so re-uired to appear "efore a court or co##issioner outside the province or city in which such o"li$or resides or is found. (Sec. 0.% Rule 09+

JONATHAN PAMPOLINA

=rder for application of property and inco#e to satisfaction of !ud$#ent.
he court #ay order any property of the !ud$#ent o"li$or% or #oney due hi#% not e9e#pt fro# e9ecution% in the hands of either hi#self or another person% or of a corporation or other !uridical entity% to "e applied to the satisfaction of the !ud$#ent% su"!ect to any prior ri$hts over such property. *f% upon investi$ation of his current inco#e and e9penses% it appears that the earnin$s of the !ud$#ent o"li$or for his personal services are #ore than necessary for the support of his fa#ily% the court #ay order that he pay the !ud$#ent in fi9ed #onthly install#ents% and upon his failure to pay any such install#ent when due without $ood e9cuse% #ay punish hi# for indirect conte#pt. (Sec. 3/% Rule 09+

19a#ination of o"li$or of !ud$#ent o"li$or.

6hen the return of a writ of e9ecution a$ainst the property of a !ud$#ent o"li$or shows that the !ud$#ent re#ains unsatisfied% in whole or in part% and upon proof to the satisfaction of the court which issued the writ% that a person% corporation% or other !uridical entity + s property o& suc+ *ud$'ent o%!i$or or is inde%ted to +i' % the court #ay% "y an order% re-uire such person% corporation% or other !uridical entity% or any officer or #e#"er thereof% to appear "efore the court or a co##issioner appointed "y it% at a ti#e and place within the province or city where such de"tor resides or is found% and "e e9a#ined concernin$ the sa#e. he service of the order shall "ind all credits due the !ud$#ent o"li$or and all #oney and property of the !ud$#ent o"li$or in the possession or in the control of such person% corporation% or !uridical entity fro# the ti#e of serviceK and the court #ay also re-uire notice of such proceedin$s to "e $iven to any party to the action in such #anner as it #ay dee# proper. (Sec. 07% Rule 09+

Appoint#ent of receiver.
he court #ay appoint a receiver of the property of the !ud$#ent o"li$orK and it #ay also for"id a transfer or other disposition of% or any interference with% the property of the !ud$#ent o"li$or not e9e#pt fro# e9ecution. (Sec. 31% Rule 09+

Sale of ascertaina"le interest of !ud$#ent o"li$or in real estate.

1nforce#ent e9a#ination.

of

attendance

and

conduct

of

*f it appears that the !ud$#ent o"li$or has an interest in real estate in the place in which proceedin$s are had% as #ort$a$or or #ort$a$ee or otherwise% and his interest therein can "e ascertained without controversy% the receiver #ay "e ordered to sell and convey such real estate or the interest of the o"li$or thereinK and such sale shall "e conducted in all respects in the sa#e #anner as is provided for the sale of real estate upon e9ecution% and the proceedin$s thereon shall "e approved "y the court "efore the e9ecution of the deed. (Sec. 3&% Rule 09+

A party or other person #ay "e co#pelled% "y an order or su"poena% to attend "efore the court or co##issioner to testify as provided in the two precedin$ sections% and upon failure to o"ey such order or su"poena or to "e sworn% or to answer as a witness or to su"scri"e his deposition% #ay "e punished for conte#pt as in other cases. 19a#inations shall not "e unduly prolon$ed% "ut the proceedin$s #ay "e ad!ourned fro# ti#e to ti#e% until they are co#pleted. *f the e9a#ination is "efore a co##issioner% he #ust ta@e it in writin$ and certify it to the court. All e9a#inations and answers "efore a court or co##issioner #ust "e under oath% and when a corporation or other !uridical entity answers% it #ust "e on the oath of an authori8ed officer or a$ent thereof. (Sec. 08% Rule 09+

Proceedin$s when inde"tedness denied or another person clai#s the property.

*f it appears that a person or corporation% alle$ed to have property of the !ud$#ent o"li$or or to "e inde"ted to hi#% clai#s an interest in the property adverse to hi# or denies the de"t% the court #ay authori8e% "y an order #ade to that effect% the !ud$#ent o"li$ee to institute an action a$ainst such person or corporation for the recovery of such interest or de"t% for"id a transfer or other disposition of such interest or de"t within one hundred twenty (1&/+ days fro# notice of the order% and #ay punish diso"edience of such order as for conte#pt. Such order #ay "e #odified or vacated at any ti#e "y the court which issued it% or "y the court in which the action is "rou$ht% upon such ter#s as #ay "e !ust. (Sec. 30% Rule 09+

="li$or #ay pay e9ecution a$ainst o"li$ee.
After a writ of e9ecution a$ainst property has "een issued% a person inde"ted to the !ud$#ent o"li$or #ay pay to the sheriff holdin$ the writ of e9ecution the a#ount of his de"t or so #uch thereof as #ay "e necessary to satisfy the !ud$#ent% in the #anner prescri"ed in section 9 of this Rule% and the sheriffTs receipt shall "e a sufficient dischar$e for the a#ount so paid or directed to "e credited "y the !ud$#ent o"li$ee on the e9ecution. (Sec. 09% Rule 09+

1ntry of satisfaction of !ud$#ent "y cler@ of court.

Satisfaction of a !ud$#ent shall "e entered "y the cler@ of court in the court doc@et% and in the e)ecution %oo(% upon the return of a writ of e9ecution showin$ the full satisfaction of the !ud$#ent% or upon the filin$ of an ad#ission to the satisfaction of the !ud$#ent e9ecuted and ac@nowled$ed in the sa#e #anner as a conveyance of real property "y the !ud$#ent o"li$ee or "y his counsel unless a revocation of his authority is filed% or upon the endorse#ent of such ad#ission "y the !ud$#ent o"li$ee or his counsel on the face of the record of the !ud$#ent. (Sec. 33% Rule 09+

135 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

1ntry of satisfaction with or without ad#ission.
6henever a !ud$#ent is satisfied in fact% or otherwise than upon an e9ecution% on de#and of the !ud$#ent o"li$or% the *ud$'ent o%!i$ee or +is counse! 'ust e)ecute nd c(no"!ed$e, or indorse, n d'ission o& t+e s tis& ction as provided in the last precedin$ section% and after notice and upon #otion the court #ay order either the !ud$#ent o"li$ee or his counsel to do so% or #ay order the entry of satisfaction to "e #ade without such ad#ission. (Sec. 3;% Rule 09+

after the sa#e have "een re#anded to the lower court% the appellate court can direct the issuance of the write of e9ecution since such act is #erely in the enforce#ent of its !ud$#ent and which it has the power to re-uire. 6hat are the instances when a trial court can reasona"ly refuse to issue a writ of e9ecution for a !ud$#ent or order that has "eco#e e9ecutory> 1. 6hen su"se-uent facts and circu#stances transpire which render such e9ecution un!ust or i#possi"le% such as a supervenin$ cause. &. =n e-uita"le $rounds% as when there has "een a chan$e in the situation of the parties which #a@es the e9ecution ine-uita"le. 0. 6here the !ud$#ent has "een novated "y the parties. 3. 6hen a petition for relief or an action to en!oin the !ud$#ent is filed and a preli#inary in!unction is prayed for and $ranted. ;. 6here the !ud$#ent has "eco#e dor#ant% the ;2 year period under Sec. . of Rule 09 havin$ e9pired without !ud$#ent havin$ "een revived. .. 6here the !ud$#ent turns out "e inco#plete or is conditional% since as a #atter of law% such !ud$#ents cannot "eco#e final. 6hat is the re#edy fro# a denial of a #otion for e9ecution> he re#edy is an appeal. (Socorro v. =rti8% &3 ,ece#"er 19.3+ 6hen is a -uashal of a writ of e9ecution proper> he -uashal of a writ of e9ecution is proper when< 1. he writ of e9ecution was i#providently issued &. he writ is defective in su"stance 0. he writ is issued a$ainst the wron$ party 3. he !ud$#ent was already satisfied. ;. he writ was issued without authority. .. here is a chan$e in the situation of the parties which renders e9ecution ine-uita"le. 7. he controversy was never validly su"#itted to the court 8. he writ of e9ecution varies the ter#s of the !ud$#ent. 9. he writ is sou$ht to "e enforced a$ainst property e9e#pt fro# e9ecution 1/. here is a#"i$uity in the ter#s of the !ud$#ent. Can the court a#end a !ud$#ent that has "eco#e e9ecutory> 'enerally% it cannot. 1OC1P *=NS< a. o #a@e corrections of clerical errors% #ista@es or o#issions. ". o clarify an a#"i$uity which is "orne out "y and !ustifia"le in the conte9t of the decision% especially if the parties ac-uiesced thereto. c. *n !ud$#ents for support% which can always "e a#ended fro# ti#e to ti#e% in li$ht of the circu#stance of the parties.

6hen principal "ound "y !ud$#ent a$ainst surety.

6hen a !ud$#ent is rendered a$ainst a party who stands as surety for another% the latter is also "ound fro# the ti#e that he has notice o& t+e ction or proceedin$ % and n opportunity t t+e suretyBs re-uest to *oin in t+e de&ense. (Sec. 3.% Rule 09+

SC Circu! r /6 J 14 J 1666

Re$ ! do Notes. 6hat are the two senses "y which the ter# Hfinal orderN is used> 1. *ssue of Appeala"ility. Cor purpose of appeal% an order is HfinalN if it disposes of the action% as distin$uished fro# an interlocutory order which leaves so#ethin$ to "e done in the trial court with respect to the #erits of the case. &. *ssue of :indin$ 1ffect. Cor purposes of "indin$ effect or whether it can "e su"!ect of e9ecution% an order is HfinalN or e9ecutory after the lapse of the re$le#entary period to appeal and no appeal has "een perfected. 4ust the party who won the appeal wait for the records of the appellate court to "e re#anded to the trial court "efore he can #ove for an e9ecution> No. he prevailin$ party can secure certified true copies of the !ud$#ent or final order of the appellate court and the entry thereof% and su"#it the sa#e to the court of ori$in with and to !ustify his #otion for a writ of e9ecution% without waitin$ for its receipt of the records fro# the appellate court. hat #otion #ust "e with notice to the adverse party% with a hearin$ when the circu#stances so re-uire% to ena"le hi# to file any o"!ection thereto or "rin$ to the attention of said court #atters which #ay have transpired durin$ the pendency of the appeal and which #ay have "earin$ on the e9ecution sou$ht to enforce the !ud$#ent. 6hat is the re#edy when the trial court% for its own reasons or other un!ustifia"le circu#stances% unduly delays or unreasona"ly refuses to act on the #otion for e9ecution or issue the writ for a final !ud$#ent or order of the appellate court> =n #otion in the sa#e case while the records are still with the appellate court% or even

13 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

6hat are the re#edies a$ainst a !ud$#ent or order which has "eco#e e9ecutory> 1. Petition for Relief (Rule 08+ &. ,irect attac@ a$ainst the !ud$#ent 0. Collateral attac@ a$ainst the !ud$#ent. 6hen can the trial court $rant discretionary e9ecution> ,iscretionary e9ecution #ay "e $ranted "y the trial court a. while it has !urisdiction over the case and ". is still in possession of the ori$inal record thereof or the record on appeal in those instances where the latter is re-uired. 6hen can an e9ecution pendin$ appeal "e filed with the appellate court> *f the trial court has lost !urisdiction over the case "e reason of perfection of the appeal fro# the !ud$#ent therein% the #otion for e9ecution pendin$ appeal #ay "e filed in the appropriate appellate court to which the ori$inal record or on the record on appeal shall have conse-uently "een elevated. Can a decision of the CA% in the e9ercise of its ori$inal !urisdiction% "e i##ediately #ade e9ecutory "y the CA> No. *n ori$in ! ctions &i!ed in t+e CA% said court has no authority to issue i##ediate e9ecution pendin$ appeal of its own decision therein. =nce final and e9ecutory% the !ud$#ent on appeal #ust "e re#anded to the lower court where a #otion for e9ecution #ay "e filed after its entry. *n other words% the !ud$#ent in such cases cannot "e e9ecuted "efore its finalityK it cannot "e enforced "y discretionary e9ecution. (7eirs of Justice Reyes% v. CA% 1. Au$ust &///+ his should not "e confused with the procedure outlined in the & nd para$raph of Sec. & (a+ of Rule 09% which $overns discretionary e9ecution of the decisions of the Re$ion ! Tri ! Court% which is on appeal in the CA and the R C has already lost !urisdiction over the case. *n #ovin$ for a stay of discretionary e9ecution% what is a supersedeas "ond> A supersedeas "ond is an au9iliary process desi$ned to supersede enforce#ent of a CAs !ud$#ent "rou$ht up for review% and its application is li#ited to the !ud$#ent fro# which an appeal is ta@en. *n #odern practice% the ter# is used synony#ously with a Hstay of proceedin$sN and desi$nates the effect of an act or proceedin$ which in itself suspended the enforce#ent of a !ud$#ent. 6hat are the instances or $ood reasons when even "efore the !ud$#ent has "eco#e e9ecutory and "efore appeal was perfected can the court in its discretion% #ay order e9ecution as stated in a special order "y said court>

1. 6here the lapse of ti#e would #a@e the ulti#ate !ud$#ent ineffective &. 6here the appeal is clearly dilatory 0. 6here the !ud$#ent is for support and the "eneficiary is in need thereof. 3. 6here the articles su"!ect of the case would deteriorate% and hence under Sec. 1; (a+ of Rule 09% the court can fi9 the ti#e for notice of e9ecution sale of perisha"le property. ;. 6here defendants are e9haustin$ their inco#e and no other property aside fro# the proceeds of the su"division lots su"!ect of the action. .. 6here the !ud$#ent de"tor is i##inent dan$er of insolvency 7. 6here the prevailin$ party is of advanced a$e and in a precarious state of health and the o"li$ation in the !ud$#ent is non2trans#issi"le 8. 6here there is uncontradicted evidence showin$ that% in order to house #achineries which they were forced to place on a pu"lic street% #ovants were in e9tre#e need of the pre#ises su"!ect of the suit and the possession whereof was ad!ud$ed to the# in the trial courtAs decision% and the correspondin$ "ond to answer for da#a$es in case of reversal of appeal had "een posted "y the#. 9. 6here the case involved escrow deposits and the prevailin$ party posts sufficient "ond to answer for da#a$es in case of reversal of !ud$#ent. 6hat is the re#edy a$ainst an order $rantin$ e9ecution pendin$ appeal where the order is not founded upon $ood reasons> Certiorari. he fact that the losin$ party had also appealed fro# the !ud$#ent does not "ar the certiorari proceedin$s as the appeal could not "e an ade-uate re#edy fro# such pre#ature e9ecution. An e9ecution pendin$ appeal can "e awarded for actual% #oral and e9e#plary da#a$es prayed for in the co#plaint. rue or Calse. Calse. 6here fro# the decision and the evidence presented "efore the trial court% the !ud$#ent creditor is clearly entitled to actual da#a$es% the sa#e can "e the su"!ect of e9ecution pendin$ appeal% "ut N= the other awards for #oral and e9e#plary da#a$es and attorneyAs fees. (RCP* v. CA% 01 January 198;+ 6hat is the effect of a reversal of an e9ecuted !ud$#ent> he property itself #ust "e returned to the !ud$#ent de"tor% if the sa#e is still in the possession of the !ud$#ent creditor% plus co#pensation to the for#er for the deprivation and use of property. his can "e effected "y #otion to the trial court. *f restitution of the property is i#possi"le% how should co#pensation "e #ade> a. *f the purc+ ser t t+e pu%!ic uction " s t+e *ud$'ent creditor% he #ust pay the full value of

13! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

the property at the ti#e of its sei8ure% plus interest thereon. ". *f the purc+ ser t pu%!ic uction " s t+ird person% the !ud$#ent creditor #ust pay the !ud$#ent de"tor the a#ount reali8ed fro# the sale of said property at the sheriffAs sale% with interest thereon. c. I& t+e *ud$'ent " rd " s reduced on ppe !% the !ud$#ent creditor #ust return to the !ud$#ent de"tor only the e9cess which he received over and a"ove that to which he is entitled under the final !ud$#ent% with interest on the e9cess. Can a writ of e9ecution "e enforced if the levy was #ade after the five year period> No. *f no levy was #ade within the ;2year period% the writ of e9ecution #ay no lon$er "e enforced even if it was issued within the ;2year period. *f a writ of e9ecution was issued and levy #ade on the property within the ;2year period% the sale of property thereafter will "e valid provided it is #ade within the 1/ year period. ,oes the failure to o"!ect to a #otion for a writ of e9ecution issued after ; years fro# final !ud$#ent validate the writ> No% the -uestion of !urisdiction of the court is involved and !urisdiction cannot "e conferred "y the will of the parties. 6hen will e9ecution issue a$ainst the estate of the !ud$#ent de"tor> *f the *ud$'ent is &or su' o& 'oney % and the !ud$#ent o"li$or dies "efore the levy has "een #ade on his property% such !ud$#ent cannot "e enforced "y writ of e9ecution "ut #ust "e filed as acclai# a$ainst his estate. 7owever% if the !ud$#ent o"li$or dies after the entry of !ud$#ent "ut "efore levy on his property% e9ecution will issue if it "e for the reco#ery o& re ! or person ! property. Provided that% if !ud$#ent o"li$or dies AC 1R levy has "een #ade% the e9ecution sale #ay proceed% *t is the actual date of levy on e9ecution which is the cut2off date. Can a party a$$rieved "y a writ of e9ecution $ranted "y the C appeal> No. An order $rantin$ the issuance of a writ of e9ecution of a final !ud$#ent is not appeala"le. Appeal is a re#edy fro# an order ,1NG*N' the issuance of a writ of e9ecution. A party who has voluntarily e9ecuted a !ud$#ent% partially or in toto% or who voluntarily ac-uiesces in or ratifies% either partially or in toto% the e9ecution of such !ud$#ent is not per#itted to appeal fro# it. rue or Calse. rue.

*s conte#pt of court the re#edy a$ainst a party who refuses to yield possession of a property as ordered "y a writ of e9ecution> No. he sheriff #ust oust said party fro# the property "ut if de#olition is involved% there #ust "e a hearin$ on #otion and due notice for the issuance of a special order under Sec. 13 of Rule 09. 6hat is a special H"rea@2openN order> A special H"rea@2openN is an order fro# the court authori8in$ the sheriff to destroy% de#olish or re#ove i#prove#ents on property su"!ect of e9ecution. (Sec. 1/ (d+% Rule 09+. 7owever% a writ of e9ecution directin$ the sheriff to cause the defendant to vacate is in the nature of a ha"ere facias possessione# and authori8es the sheriff% without need of securin$ a H"rea@2openN order% to "rea@ open the pre#ises where there is no occupant therein. (Arcadio v. Gla$an% 0/ July 198.+ 6hat is the special !ud$#ent in Sec. 1& of Rule 09> 7ow is it different fro# e9ecution of !ud$#ents for specific acts> *t is a !ud$#ent which re-uires the perfor#ance of any act% other than the pay#ent of #oney or the sale or delivery or real or personal property% which p rty 'ust person !!y do %ec use +is person ! -u !i&ic tions nd circu'st nces + #e %een t (en in to consider tion. Jud$#ents for a specific act under Sec. 1/ of Rule 09% on the other hands% directs a party to e9ecute conveyance of land or to deliver deeds or other docu#ents% or to perfor# any other specific acts in connection therewith "ut "+ic+ cts c n %e per&or'ed %y persons ot+er t+ n s id p rty . 7ence% on refusal to co#ply% the court can appoint so#e other person to perfor# the act directed to "e done at the e9pense of the diso"edient party and the act when so done shall have the sa#e effect as if perfor#ed "y the party hi#self. 6hat is levy> 5evy #eans the act or acts "y which an officer sets apart or appropriates a part or the whole of the property of the !ud$#ent de"tor for purposes of the prospective e9ecution sale. 6ithout a valid levy "ein$ #ade% any sale of the property thereafter is void. 6hat is $arnish#ent> *f the property involved is #oney% stoc@s or other incorporeal property in the hands of third persons% the act of appropriation "y the sheriff is @nown as $arnish#ent. he $arnishee will not "e directed "y the court to deliver the funds or property to the !ud$#ent creditor as the $arnish#ent #erely sets apart such funds "ut does not constitute the creditor as the owner of the $arnished property.

13" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

*s the $arnish#ent of a "an@ deposit a violation of RA 13/; (Secrecy of :an@ ,eposits 5aw+> No. *t is not a violation of the said law% as it does not involve an in-uiry or e9a#ination of such "an@ deposit. (China :an@in$ Corp.% v. =rte$a% 01 January 1970+ As to property e9e#pted fro# e9ecution% are sophisticated tools of advanced technolo$ical desi$n e9e#pt> No. Sophisticated tools of advanced technolo$ical desi$ns with considera"le value% such as power tools used in industrial or co##ercial concerns are N= e9e#pt. Are "enefits fro# life insurance e9t fro# e9ecution> Ges. All #onies% "enefits% privile$es or annuities accruin$ or $rowin$ out of any !i&e insur nce are now e9e#pt re$ardless of the a#ount of the pre#iu#s paid. 7owever% this e9e#ption does not apply to nonA!i&e insur nce covera$e. 6hen can property e9e#pted fro# e9ecution still "e clai#ed in an e9ecution !ud$#ent> he e9e#ptions enu#erated under the Sec. 10% Rule 09 cannot "e clai#ed% if a. the !ud$#ent is for the recovery of the unpaid price of the article involved. ". the !ud$#ent is for the foreclosure of a #ort$a$e on the property. Aside fro# those specifically enu#erated under the Rules% what other properties are specially e9e#pted> 1. Property #ort$a$ed to the ,:P. &. Property ta@en over "y the Alien Property Ad#inistration 0. Savin$s of national prisoners deposited with the Postal Savin$s :an@. 3. :ac@pay of pre2war civilian e#ployees ;. Philippine 'overn#ent "ac@pay to $uerrillas. .. Produce% wor@ ani#als and far# i#ple#ents of a$ricultural lessees su"!ect to li#itations. 7. :enefits fro# private retire#ent syste#s of co#panies and esta"lish#ents% with li#itations. 8. 5a"orerAs wa$es e9cept for de"ts incurred for food% shelter% clothin$ and #edical attendance. 9. :enefits fro# the SSS 1/. Copyri$hts and other ri$hts in intellectual property under the for#er copyri$ht law. 11. :onds issued "y RA 1/// 6hat is the life ti#e of the writ of e9ecution> he lifeti#e of the writ of e9ecution corresponds to the period within which the !ud$#ent #ay "e enforced "y #otion (within ; years fro# entry thereof+ since thereafter such !ud$#ent "eco#es dor#ant and su"!ect to a revival action. 6ithin the period for its enforcea"ility and fro# its receipt "y the officer tas@ed with its enforce#ent% the officer shall #a@e periodic reports

to the court as re-uired "y Sec. 13 of Rule 09% until the !ud$#ent is fully satisfied or "eco#es ineffective. 6hat is the effect of the "ond filed "y the prevailin$ party as re$ards the third party clai#> 6here a third party clai# has "een filed in due for#% the prevailin$ party can co#pel the sheriff to proceed "y the filin$ of a "ond to answer for da#a$es that #ay "e incurred as a conse-uence of the e9ecution. =n the other hand% if the sheriff proceeds with the sale% without such a "ond% he will "e personally lia"le for such da#a$es as #ay "e sustained "y and awarded to the third2party clai#ant. (:ayer Phil. *nc.% v. A$ana% 8 April 197;+ 6hat is the re#edy of a third party whose clai# was disre$arded "y the sheriff "ecause of a "ond filed "y the prevailin$ party or the court denies the third party clai#> he re#edy of the third party clai#ant is to file an independent rein#indic tory action a$ainst the !ud$#ent creditor or the purchaser at pu"lic auction. he third party clai#ant cannot appeal nor avail of certiorari as a re#edy% since he is not a party to the ori$inal action. 6hat are the re#edies outlined under Sec. 1. of Rule 09 for third party clai#ants> Are the re#edies cu#ulative> 1. Su##ary hearin$ "efore the court which authori8ed the e9ecution. &. TERCERIA D third party clai# filed with the sheriff 0. Action for da#a$es on the "ond posted "y the !ud$#ent creditor. 3. *ndependent reinvindicatory action Ges% these are cu#ulative re#edies and #ay "e resorted to "y a third party clai#ant independently of or separately for# and without need of availin$ of the others. ,ifferentiate third party clai#s in e9ecution proceedin$s with third party clai#s arisin$ fro# attach#ent proceedin$s (Sec. 13% Rule ;7+ and in replevin suits (Sec.7% Rule ./+> A third party clai#ant see@in$ to vindicate his clai# to the property% or a !ud$#ent o"li$e with a clai# for da#a$es #ay enforce their clai#s in a sep r te ction instituted for that purpose and N= in the sa#e court where the e9ecution proceedin$s are "ein$ conducted. =n the other hand% such third party clai#s conte#plated and arisin$ in attach#ent proceedin$s and in replevin suits #ay "e liti$ated in the s 'e ction in#o!#ed or in sep r te suit. he reason for the difference is that the !ud$#ent in the case su"!ect of e9ecution is already final and e9ecutory% while Rules ;7 and ./ involve actions still pendin$ in the trial court.

139 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

Can the !ud$#ent creditor "id and purchase at the pu"lic auction> 7ow a"out the e9ecution sheriff> he !ud$#ent creditor can "id and purchase at the pu"lic auction. (Sec. &1% Rule 09+. :ut the officer conductin$ the e9ecution sale or his deputy are dis-ualified. =ther persons dis-ualified fro# participatin$ in e9ecution sale are enu#erated in Article 1391 of the Civil Code. 6hat is the re#edy a$ainst an irre$ular sale> he re#edy a$ainst an irre$ular sale is a #otion to vacate or set aside the sale to "e filed in the court which issued the writ of e9ecution. 6hat is the #easure of da#a$es to which the !ud$#ent creditor is entitled a$ainst the refusin$ purchaser or unlawful intervenor under Sec. &/ of Rule 09> he a#ount would "e the difference "etween the a#ount which would have "een reali8ed were it not for the ille$al intervention ("ut not to e9ceed the !ud$#ent account+ and the total a#ount which he actually recovered on the !ud$#ent fro# all sources% includin$ the a#ount actually reali8ed at the auction sale% plus the e9penses incurred as a conse-uence of the ille$al intervention. (4ata v. 5ichuaco% 0. Phil. 8/9+ *n the e9ecution sale% the "iddin$ was not co#pleted on the hursday% it was supposed to "e scheduled. he sheriff is co#in$ down with a flu and unilaterally decides to reset the #eetin$ to ne9t 4onday. *s the sheriffAs action valid> No. he officer #ay ad!ourn the sale fro# day to day if it is necessary to do so for lac@ of ti#e to co#plete the sale on the date fi9ed in the notice. 7e #ay N= ad!ourn the sale to not+er d te% unless with the written consent of the parties. =therwise the sale thus conducted will "e null and void. (A"ro8ar v. *AC% 1; January 1988+ A Role9 watch was levied upon and was sold in an e9ecution sale on 4arch 1% &//0. he !ud$#ent de"tor and owner of the watch wanted to redee# his watch on Ce"ruary &9% &//3. Should rede#ption "e allowed> No. here is no ri$ht of rede#ption where the property sold at !udicial sale is personal property. A house and lot was levied and sold under an e9ecution sale on ,ece#"er 1% &//3. he certificate of sale was $iven "y the e9ecutin$ officer to Purchaser O only on January 3% &//; "ecause of the confusion of the Christ#as season. he Jud$#ent ,e"tor L wants to redee# the property fro# the purchaser and offered the purchase price in cash to hi# on ,ece#"er &3% &//;. Purchaser O% "ein$ an old Scroo$e refuses to accept% sayin$ that the period for rede#ption has already e9pired. *s the refusal proper>

No. he period of rede#ption has not run at all "ecause the period for rede#ption only "e$ins to run fro# the re$istration of the certificate of sale in the re$istry of deeds. *n this case% the certificate of sale has not "een re$istered and thus% the period for rede#ptions does not run. ('arcia v. =ca#po% 1/; Phil. 1/&+ Can the purchaser and !ud$#ent de"tor a$ree that the period of rede#ption "e shortened into si9 #onths fro# the re$istration of the certificate of sale> Ges. 6here the parties a$reed on the date of rede#ption% the statutory period for !e$ ! rede'ption was converted into one of con#ention ! rede'ption and the period "indin$ on the# is that a$reed upon. (5a8o v. Repu"lic Surety W *nsurance Co.% 0/ January 197/+ he certificate of sale of real property confers the ri$ht of possession and ownership of the real property su"!ect of the e9ecution sale to the purchaser. rue or Calse. Calse. he certificate of sale of real property is #erely a #e#orial of the fact of the sale and does not confer any ri$ht to the possession% #uch less the ownership% of the real property purchased. *t is the deed of sale e9ecuted "y the sheriff at the e9piration of the period of rede#ption which constitutes effective conveyance of the property sold and entitles the purchaser to possession of the property sold. 6hen is a lien created as to $rant the lien holder a ri$ht to redee#> Althou$h the rede#ptioner is defined as one who has a lien "y attach#ent or !ud$#ent% the sa#e does not per se create such lien as it is the !e#y pursu nt to s id "rit o& tt c+'ent or *ud$'ent that creates a lien on the property. 7ence the definition under the Rules have "een restated to read that such lien is H"y virtueN thereof. Can a creditor% whose lien is prior to the !ud$#ent under which the property is sold% redee# the property> No. A rede#ptioner is defined as a creditor with a lien su%se-uent to the !ud$#ent which was the "asis of the e9ecution sale. *f the lien of the creditor is prior to the !ud$#ent under which the property was sold% he is not a rede#ptioner and therefore can N= redee# property. he interests of a creditor with a prior lien are fully protected% since any purchaser at the pu"lic auction of said property ta@es the sa#e% su"!ect to such prior lien which he has to satisfy. he !ud$#ent de"tor or the rede#ptioner need not prove their ri$ht to redee#. rue or false. Calse. Bnli@e the !ud$#ent de"tor% a rede#ptioner #ust prove his ri$ht to redee# "y

140 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

producin$ the docu#ents called for "y Sec. 0/ of Rule 09. Can there "e partial rede#ption of real property> Ges. 6here several parcels of land were sold at a pu"lic auction to satisfy a !ud$#ent% the defendant #ay redee# so#e of the properties "y payin$ the prices at which there were sold at the auction sale. Piece2#eal rede#ption is allowed since% in the rede#ption of properties sold at an e9ecution sale% the a#ount paya"le is no lon$er the !ud$#ent de"t "ut the purchase price. (,ulay v. Caria$a% &9 July 1980+ he rule is different in the rede#ption of properties #ort$a$ed with the PN: or ,evelop#ent :an@ and which are foreclosed !udicially or e9tra !udicially% since under the provisions of their respective charters% the rede#ptioner #ust pay all the a#ounts owed "y the de"tor on said #ort$a$e. he sa#e rule applies to foreclosures "y "an@in$ institutions in view of the provisions of Sec. 78 of RA 007. *s there a difference in the periods of rede#ption "y a !ud$#ent de"tor and a rede#ptioner> Ges. he !ud$#ent de"tor has always one year fro# the re$istration of the certificate of sale within which to redee#% re$ardless of whether there have "een any prior rede#ptions and the date of such rede#ptionsK and the #o#ent said !ud$#ent de"tor redee#s% there shall "e no further rede#ption. he rede#ptioner #ust redee# within the one2year period% if he is the first rede#ptioner% and within ./ days fro# the last rede#ption% if he "e a su"se-uent rede#ptioner% provided that the !ud$#ent de"tor has not e9ercised his ri$ht of rede#ption. ,urin$ the period of rede#ption% what are the ri$hts of the !ud$#ent de"tor> he !ud$#ent de"tor is entitled to the followin$ ri$hts< 1. ri$ht to possess the property &. ri$ht to receive the fruits of the pre#ises 0. ri$ht not to "e re-uired to pay rent to the creditor or purchaser. A vacation house in a$aytay was sold in an e9ecution sale. After 11 #onths fro# re$isterin$ the certificate of sale% the purchaser as@ed the sheriff if he could use the vacation house for his & #onth "rea@ fro# wor@. he sheriff allowed the purchaserAs re-uest. he !ud$#ent de"tor now co#es to you for advice. 6hat would you do> Cile an action for forci"le entry. *f the sheriff puts the purchaser at the pu"lic auction in possession of the land durin$ the one2year period of rede#ption% an action for forci"le entry lies a$ainst the sheriff and said purchaser. (Ca"ico v. =n$% 30 Phil. ;7&+

Cro# the prior e9a#ple% the !ud$#ent de"tor wants to lease the vacation house in a$aytay to his hi$h school sweetheart for si9 #onths i##ediately after the re$istration of the certificate of sale to $enerate #oney for the rede#ption. he purchaser $ot wind of the lease a$ree#ent and as@ed the de"torAs for#er flin$ to pay the lease pay#ent to hi# rather than to the !ud$#ent de"tor. he for#er sweetheart co#plied with the re-uest and $ave the pay#ents to the purchaser. Can the !ud$#ent de"tor recover the lease pay#ents> Ges. All rents% earnin$s and inco#e derived fro# the property pendin$ rede#ption shall "elon$ to the !ud$#ent de"tor until the e9piration of his period of rede#ption% and not to the purchaser or rde#ptioner. 6hen is the purchaser or rede#ptioner su"stituted for the !ud$#ent o"li$or as to the property sold at an e9ecution sale> Bpon the e9piration of the ri$ht to rede#ption. 7owever% he shall ac-uire all the ri$hts% title% interests and clai#s of the !ud$#ent o"li$or to the property s o& t+e ti'e o& t+e !e#y. 6hat is the rec@onin$ period of the ri$hts of the purchaser to the property sold at an e9ecution sale> he ri$ht of the purchaser to the property retroacts to the date of the levy. his fi9in$ of the date is i#portant "ecause% since the sale retroacts to the date of the levy% any disposition or lien in favour of third person created "y acts of the de"tor &ter t+e !e#y on re ! property shall N= "e "indin$ a$ainst the purchaser to who# a final deed of sale was su"se-uently issued. ('uerrero v. A$ustin% &7 April 19.0+ After the deed of sale has "een e9ecuted% is the purchaser therein entitled to a writ of possession> Ges. :ut the writ of possession shall issue only where it is the !ud$#ent de"tor or his successors in interest who are in possession of the pre#ises. 6here the land is occupied "y a third party% the court should order a hearin$ to deter#ine the nature of his adverse clai#. 6hat are the options $iven to a purchaser where the e9ecution sale was not effective under the conditions in Sec. 03 of Rule 09> he purchaser #ay< (:elle8a v. Landa$a% 98 Phil. 7/&+ a+ :rin$ a separate action or file a #otion in the sa#e action a$ainst the !ud$#ent creditor for the a#ount paid "y hi# at the !udicial sale "+ Cile a #otion in the sa#e action where e9ecution was issued for the revival of the !ud$#ent in his na#e a$ainst the !ud$#ent de"tor. c+ :rin$ an action to recover possession of the property sold to hi# at pu"lic auction.

141 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

6hat are the "ases "y which an entry of satisfaction of !ud$#ent shall "e #ade in the court doc@et and in the e9ecution "oo@> a. he return of an e9ecution satisfied "y action of the sheriff in accordance with Sec. 33 of Rule 09. ". An ad#ission of the satisfaction of !ud$#ent e9ecuted and ac@nowled$ed in the sa#e #anner as a conveyance of real property "y the !ud$#ent o"li$e or his counsel c. he indorse#ent of such ad#ission "y the !ud$#ent creditor or his attorney on the face of the record of the !ud$#ent. d. :y order of the court% upon satisfactory proof of such satisfaction of !ud$#ent. *s the surety "ound "y the !ud$#ent a$ainst the principal "y #ere notice of the action or proceedin$> No. he converse of Sec. 3. of Rule 09 is not true. *n order that the surety #ay "e "ound "y the !ud$#ent a$ainst his principal% such surety #ust "e i#pleaded in the action or $iven an opportunity to "e heard% otherwise the writ of e9ecution issued a$ainst the surety is void. (5u8on Surety Co. v. :eson% 0/ January 197/+ 9 utist Notes

Conditional or inco#plete !ud$#ents cannot "e e9ecuted nor #ay e9ecution of a !ud$#ent still issue where this !ud$#ent had "een novated "y a contract e9ecuted su"se-uent thereto. Can the sheriff levy on the personal property of !ud$#ent o"li$or that has "een #ort$a$ed> No. 6here personal property of the !ud$#ent o"li$or has "een #ort$a$ed% the sheriff cannot levy on the property itself "ut only on the o"li$orAs ri$ht and e-uity therein. (Northern 4otors% *nc. v. Co-uia% .. SCRA 31;% .8 SCRA 073+ 6hat is the ri$ht $iven to the transferee of the !ud$#ent de"torAs ri$ht of rede#ption> 6here the !ud$#ent de"tor transfers his ri$ht of rede#ption% then his transferee shall redee# the property under the ri$ht of such !ud$#ent de"tor as he shall thence "e su"ro$ated to the ri$hts and o"li$ations of the !ud$#ent de"tor. Can the one year period of le$al rede#ption "e e9tended> As a $eneral rule% the one year period for redee#in$ real property fro# e9ecution sale cannot "e e9tended% so that after the e9piration of the period the title should "e consolidated in the vendee. (Cenas v. Santos% &/3 SCRA ;0+ :ut where the rede#ptioner and the !ud$#ent o"li$e cannot a$ree on the rede#ption price and the rede#ption period is a"out to e9pire the rede#ptioner #ay preserve his ri$ht of rede#ption throu$h !udicial action which #ust however "e filed within the one2year rede#ption period and the filin$ of such court action would "e e-uivalent to a for#al offer to redee#% preservin$ his rede#ptive ri$hts and Hfree8in$N the e9piration of the one2year period. (7i2Gield Realty *nc.% v. CA% 1& Septe#"er &//&+ ,ifferentiate Rede#ption "y Jud$#ent ,e"tor and Rede#ption "y a Rede#ptioner. Jud$#ent ,e"tor Rede#ptioner i#e of =ne year fro# Si9ty days fro# Rede#ption the date of the the last sale rede#ption A#ount to Pay the purchase Price which "e Paid price% ta9es paid constitutes the "y the !ud$#ent value of the lien creditor and of the su"se-uent interest of 1Y rede#ptioner and per #onth interest of &Y per #onth% plus ta9es paid Cinality of =nce redee#ed Can "e su"!ect to Rede#ption "y !ud$#ent a su"se-uent de"tor% no further rede#ption rede#ption #ay "e allowed.

6hat is a $ood reason for allowin$ e9ecution pendin$ appeal> he $ood reason for allowin$ e9ecution pendin$ appeal constitutes such superior circu#stances de#andin$ ur$ency which will outwei$h the in!ury or da#a$es should the losin$ party secure a reversal of the !ud$#ent. he #ere filin$ "y the !ud$#ent creditor of a "ond is not "y itself a H$ood reasonN to !ustify i##ediate e9ecution% otherwise i##ediate e9ecution would "eco#e routinary. Nor would it "e a H$ood reasonN for the issuance of i##ediate e9ecution that the appeal is frivolous and dilatory "ecause this would "e pre2e#ptive of the ri$ht of the appellate court to ad!udicate the appeal. (=n$ v. CA% &/0 SCRA 08+ 6hat !ud$#ents are i##ediately final and e9ecutory and whose enforce#ent is not stayed "y an appeal ta@en therefro#> 1. Actions for *n!unction &. Actions for Receivership 0. Actions for Accountin$ 3. Actions for Support ;. Jud$#ents upon co#pro#ise .. Jud$#ents in forci"le entry and unlawful detainer cases (Sec. 19% Rule 7/+ 7. Jud$#ents in ,irect Conte#pt. (Sec. &% Rule 71+ 6hat in the decision of the court is su"!ect to e9ecution> =nly the dispositive part of a !ud$#ent is su"!ect to e9ecution.

142 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

*s the penalty of conte#pt for non pay#ent of a #oney !ud$#ent unconstitutional or is prohi"ited under the ri$ht a$ainst i#prison#ent for de"t> No. he i#position of penalty for conte#pt upon the !ud$#ent o"li$or who fails to co#ply with an order to pay a #oney !ud$#ent in fi9ed #onthly instal#ents does not constitute i#prison#ent for de"t. he de"tor is then "ein$ punished for diso"eyin$ an order of the court% else the court would "e powerless to enforce its order for pay#ent and the creditor would have no re#edy for the collection of his !ust de"t. (Reeves v. Crownshield% &73 NG 73% 1907+ 6hat are the $rounds to stay e9ecution of a final !ud$#ent> 1. Relief &. *n!unction 0. 1-uita"le $rounds 6ithin what ti#e #ay you #ove for e9ecution of !ud$#ent> Cive years. Can a revived !ud$#ent also "e revived> Ges. Gou have another ten years to revive it. OUTLINE OF TLPES OF JUD<CENT *. 4=N1G JB,'41N A. Procedure 1. 4otion for 19ecution &. =rder of 19ecution 0. 6rit of 19ecution 3. 5evy (5evy is effected "y t (in$ p+ysic ! possession or "y $ rnis+'ent+ :. Choosin$ Property to "e 5evied. Bnder Sec. 9 ("+% Rule 09% the !ud$#ent de"tor is $iven the option to choose which property the officer shall levy. *f the !ud$#ent de"tor does not e9ercise the option% the officer shall first levy on personal property if any and then on real properties if the personal properties are insufficient. C. 19ecution Sale 1. 2otice 2 6ritten notice in 0 pu"lic places prefera"ly in conspicuous areas of the #unicipal or city hall% post office and pu"lic #ar@et 2 ,uration of notice will depend on the type of property 2 Notice "y pu"lication is also necessary in case the sale involves real property is the value of such e9ceeds P;/%///.//. he notice #ust "e once a wee@ for & consecutive wee@s in a newspaper selected "y raffle% whether in 1n$lish% Cilipino or any #a!or re$ional lan$ua$e.

2 he notice re-uire#ent is for the "enefit of the !ud$#ent de"tor. he notice infor#s potential "idders of the sale. his facilitates de"t reha"ilitation. 2 *f these notice re-uire#ents are not co#plied with% the sale is voida"le at the instance of the !ud$#ent de"tor% unless the !ud$e#ent de"tor was in connivance with the sheriff. 2 Sec. 17% Rule 09 provides the penalty for sellin$ without notice% re#ovin$ or defacin$ notice. &. Auction 2 he auction sale can "e postponed under Sec. &&% Rule 09. 7owever% there #ust "e a notice as to postpone#ent. 2 he hi$hest "idder shall $et the o"!ect "ein$ sold. he hi$hest "idder always pat cash. 1ven if the !ud$#ent creditor is the hi$hest "idder% he #ust pay cash where thereAs a 0rd party clai#. 0. Certi!icateG )eed o! Sale 3. 1edemption*s# 2 here #i$ht "e #ore than one rede#ption. 2 =nly re ! property #ay "e redee#ed. 2 he followin$ persons #ay redee# (Sec.&7% Rule 09+ a. Jud$#ent ="li$or ". Rede#ptioner E a creditor havin$ a lien "y virtue of an attach#ent% !ud$#ent or #ort$a$e on the property sold% or on so#e part thereof% su"se-uent to the lien under which the property was sold. 2 *f the rede#ption is #ade "y the !ud$#ent de"tor% then there can "e no #ore possi"le rede#ptions. 2 'enerally% the period for rede#ption cannot "e e9tended. 2 ,urin$ the period of rede#ption% possession re#ains with the !ud$#ent de"tor. *f there is a lease% the rents would $o to the !ud$#ent de"tor. **. JB,'41N S C=R SP1C*C*C AC S a. Conveyance% delivery of deeds or other specific actsK vestin$ title. ". Sale of real or personal property c. ,elivery or restitution of real property d. Re#oval of i#prove#ents on property su"!ect of e9ecution e. ,elivery of personal property ***. SP1C*C*C JB,'41N S 2 An e9a#ple of a special !ud$#ent is a !ud$#ent orderin$ a !ud$#ent de"tor to sin$ in a concert. 2 *f the !ud$#ent de"tor does not wish to co#ply with the special !ud$#ent% then he #ay "e cited for conte#pt. 2 Bnder Sec. 10 (@+% Rule 09% life insurance proceedin$s are e9e#pt. here is no li#it as to the

143 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

a#ount. 2 Bnder Sec. 10 (d+% Rule 09% necessary clothin$ is li#ited for ordinary personal use. 2 0rd parties have the sa#e re#edies as in provisional re#edies 1OC1P intervention%. he 0 rd party is not a party to the case. Since he is not a party% he can always file da#a$es in a separate action. 1. $hird Part" Claim 2 *f the 0rd party clai# is denied "y the court% rd the 0 party clai#ant cannot attac@ the denial via Rule .;% certiorari. he re#edy of the 0 rd party clai#ant would "e to intervene. &. 1einvindicator" Action 2 Action to recover title 0. )amages 2 Recover a$ainst the inde#nity or sheriffAs "ond within 1&/ days fro# the date of the filin$ of the "ond. 3. Cancel Annotation 2 See Property Re$istration ,ecree 2 hese Re#edies are cu'u! ti#e (N= #utually e9clusive+. 7owever% the 0rd party clai#ant CANN= recover twice. *). C5=6 =C 1O1CB *=N 1. Jud$#ent "eco#es final &. 4otion for 19ecution filed "y !ud$#ent creditor 0. =rder of 19ecution of the court (N= APP1A5A:51+ 3. 6rit of 19ecution issued "y the cler@ of court in the na#e of the court in which the !ud$#ent or order is entered. ;. 5evy in 19ecution. he procedure in e9ecution sale is #ore in ordinary !ud$#ent or !ud$#ent for pay#ent of a su# of #oney. .. Sale. *n sale% the procedure is< notice% pu"lication% auction% certification% delivery% re$istration% rede#ption. 7. Return of the 6rit. ). PR=C11,*N'S *N A*, =C 1O1CB *=N 1. &. 0. 3. 19a#ination of Jud$#ent ,e"tor 19a#ination of ,e"tors of the Jud$#ent ,e"tor *nstal#ent Receivers

pendin$ appeal. C $ranted e9ecution pendin$ appeal% since there was an a"sence of NAP=C=RAs o"!ection on the co##issionerAs report. CA annulled the CAs e9ecution order and ordered )illa#or to pay P3.94. *SSB1< 6=N e9ecution pendin$ appeal was proper> No. RA *=< C only loses !urisdiction when an appeal is perfected and the period to file the sa#e has lapsed. )illa#or was not a"le to receive order denyin$ 4RAs resolution. Since )illa#or was uninfor#ed% there was no period "y which to count the appeal and thus% the period did not run at all. )illa#or had no $ood reason for filin$ an e9ecution pendin$ an appeal. NAP=C=RAs failure to o"!ect to the co##issionerAs report is not a sufficient reason and neither was there a showin$ that NAP=C=R would fail to answer its o"li$ations. he appeal #ade "y NAP=C=R was also not dilatory. *f !ud$#ent is e9ecuted% there #i$ht "e da#a$es% despite restitution. S6hat are the re-uisites for the proper $rant of a discretionary e9ecution pendin$ appeal> 1. #otion "y the prevailin$ party &. $ood reason 0. $ood reason #ust "e stated in the special order. ,iesel Construction v. Jolli"ee CAC S< ,CC* constructed "uildin$s in 5a$una for Jolli"ee. ,CC* filed for action for recovery of escalated construction costs. *n response% Jolli"ee filed a counterclai#% sayin$ that ,CC* failed to co#plete the pro!ects on ti#e. C found that ,CC* had co#pleted the pro!ects on ti#e and is entitled to escalated construction costs fro# Jolli"ee. =n 7 July 1997% ,CC* filed a #otion for e9ecution "ecause it was in financial distress and needed the #oney% "ut on 13 July 1997% ,CC* filed a notice of appeal. R C $ranted e9ecution since it was a #atter of ri$ht and that ,CC* would post a "ond. ,CC* filed for #otion for issuance of writ of e9ecution in the CA. CA ordered R C to $rant the e9ecution "ut to stay the e9ecution upon filin$ of a supersedeas "ond "y Jolli"ee. *SSB1< Can the CA "e co#pelled to enforce e9ecution order of R C> No. RA *=< ,CC* filed a petition as@in$ for issuance of e9ecution of decision of R C fro# the CA. he $rant of the writ of e9ecution is not a #inisterial duty of the CA and CA cannot "e co#pelled to enforce special order of C "ecause CA has separate discretionary power. C lost !urisdiction upon trans#ittal of records to CA. =nly CA% in this case% can $rant discretionary e9ecution. Also% that ,CC* was in financial distress was not a $ood reason to order the e9ecution. Ca#acho v. CA

)illa#or v. Napocor CAC S< NAP=C=R filed suit a$ainst Carlos )illa#or for e9propriation of lot owned "y )illa#or to install trans#ission lines for its &0/J6 interconnection pro!ect. R C $ranted petition and issued writ of possession a$ainst the lot. NAP=C=R deposited P&0%11;.7/ to PN:. NAP=C=R a#ended co#plaint to include two #ore lots and was a$ain issued a writ of possession. R C e9propriated the lots for P0.91&.4 (for the land+ and P1./&14 (for i#prove#ents+. NAP=C=R filed a notice of appeal on & 4arch 1998. *n 1. 4arch 1998% )illa#or filed for e9ecution

144 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

CAC S< An action for specific perfor#ance was filed a$ainst Aurora Ca#acho "ased on the deeds of sale over the land. C% CA% and SC ordered Ca#acho to se$re$ate the lots in favour of the five purchasers. he SC decision "eca#e final and e9ecutory in &0 4ay 1980. A writ of e9ecution was $ranted in &. Au$ust 1980. Ca#acho #oved for defer#ent of the e9ecution "ecause of the a"sence of the su"division plan. C% CA and SC denied the defer#ent. =n &. Septe#"er 198.% a new writ of e9ecution was issued in the na#e of the Aurora Ca#acho. he issuance of the new writ was due to the continued unenforce#ent of the !ud$#ent a$ainst Ca#acho "ecause Ca#acho refused to surrender her title and su"se-uently% transferred the title to her dau$hter. he C which heard the case was vacated due to the loss of the !ud$e. =n 1; June 199&% a new writ of e9ecution was a$ain as@ed for. C denied the new writ "ecause it was for an alias writ which should have "een filed within a five year period fro# the ti#e the SC decision on the #otion for defer#ent was final (&. Ce"ruary 198.+. CA reversed C% sayin$ the period for filin$ an alias writ has not tolled. *SSB1< 6=N a new writ should "e issued. Ges. RA *=< :ased on principles of e-uity% SC ruled that a writ of e9ecution should "e $ranted even if filed two and half years after finality of !ud$#ent "ecause the delays were not due to the #ovantAs fault "ut to the due defer#ent of Ca#acho and the vacancies of !ud$es in the trial court. China"an@ v. =rdinario CAC S< China"an@ $ranted three loans (P&7.0;04+ to rans A#erican% which was owned "y the spouses 'arcia. he loan was secured "y a re$istered R14 on 3; parcels of land. rans A#erican defaulted and China"an@ e9tra!udicially foreclosed the R14 in a pu"lic auction and was the hi$hest "idder. China"an@ filed for a writ of possession. R C $ranted the writ. Spouses =rdinario filed an 4R clai#in$ that they had purchased the land under C 7.07. C denied =rdinarioAs 4R. CA $ranted 4R and e9cluded C 7.07 fro# the writ of possession. *SSB1< 6=N the 4R of Spouses =rdinario should "e $ranted> No. RA *=< =rdinarioAs 4R in the case involvin$ the writ of possession was a procedural #isstep "ecause the Spouses =rdinario were not parties to the case. hey were third party purchasers of the land. he re#edies of a third party clai#ant in cases where the property su"!ect of e9ecution "elon$s to a third party are< a. 1RC1R*A D 6=N sheriff ri$htly too@ hold of property which did not "elon$ to the !ud$#ent de"tor. ". S1PARA 1 AC *=N D vindicate the clai# of ownership. he re#edies are cu#ulative. Phil. :an@ of Co##erce v. CA

CAC S< P:C filed two collection suits a$ainst Cortune 4otors and Corte 4erchant% with Joseph Chua as surety. P:C ran after Chua who had a property situated in 4a@ati "ut was earlier transferred to Jaleco ,evelop#ent. he transfer to Jaleco was #ade with ChuaAs wife consent. P:C filed an action for annul#ent of the sale of the property for "ein$ in fraud of creditors. C ruled for P:C in the collection suit "ut could not issue e9ecution "ecause of the pendin$ action. hereafter% C declared sale of land to Jaleco to "e void and upon finality of the decision% ChuaAs property was levied. ChuaAs wife filed a third party clai# with the Sheriff and two other reinvidicatory actions. P:C filed a #otion to direct sheriff to enforce the writ of e9ecution. R C denied P:CAs #otion. CA dis#issed P:CAs petition and said the deter#ination of 6=N ChuaAs wife is a stran$er to the case is "est left with the C. *SSB1< 6=N ChuaAs wife is considered a stran$er to entitle her to re#edies in Sec. 17% Rule 09> No. RA *=< A wife is not considered a stran$er who is entitled to the re#edies of a third party clai#ant in an action to recover properties su"!ect of e9ecution. *n this case% the wife $ave #arital consent and did not intervene properly when the case was "ein$ liti$ated. Chua fa#ily had control of Jaleco and continued to stay in the 4a@ati property despite "ein$ sold to Jaleco. he transfer to Jaleco was a sha#. ,:P v. Bnion"an@ CAC S< Bnion"an@ sou$ht collection of #onthly rentals and da#a$es fro# ,:P. ,:P counters sayin$ lia"ility does not attach until it receives rentals fro# Cood#aster Co#pany. C ruled for Bnion"an@. CA ordered Cood#aster to pay ,:P P0&4 for unpaid rentals and ordered ,:P% after pay#ent "y Cood#aster% to pay 0/Y to Bnion"an@ of what it re#its fro# Cood#atser. SC affir#ed CA decision (& Au$ust &///+ Bnion"an@ filed for e9ecution a$ainst ,:P and ,:P li@ewise filed the sa#e a$ainst Cood#aster. C $ranted the writ of e9ecution and authori8ed deputy sheriff to e9ecute CA !ud$#ent. *n a 4R% C denied the 4R sayin$ that the writ of e9ecution a$ainst Cood#aster was N1)1R i#ple#ented. CA denied ,:PAs petition for certiorari. RA *=< 6rit of e9ecution #ust confor# to the dispositive portion of the decision. he variance "etween the e9ecution "y the R C and the CA decision was that the CA decision involved a two step process% while the e9ecution ordered "y the R C was for the i##ediate pay#ent of a sin$le o"li$ation. he R C writ of e9ecution was va$ue. he "ody and dispositive portion of the CA decision ac@nowled$ed ,:PAs o"li$ation to Bnion"an@ and the o"li$ation is contin$ent with the lia"ility of Cood#aster for pay#ent of rentals. he lia"ility of ,:P for the principal is in a separate court. 6rit of e9ecution was declared null and void.

145 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

Perla Co#pania v. Re#olete CAC S< A !eepney owned "y Nelia 1nri-ue8 and driven "y Cose# Casas collided with a privately owned !eep and @illed Pal#es% Cali9to and :or"on. he widow of Pal#es filed a co#plaint a$ainst 1nri-ue8 and Casas. C ruled for Pal#es and ordered 1nri-ue8 to pay actual% #oral% co#pensatory and e9e#plary da#a$es and attorneyAs fees. 6rit of e9ecution was unsatisfied. Bpon e9a#ination% 1nri-ue8 clai#s the occurrence was covered "y third party lia"ility insurance with Perla Co#pania. C ordered a $arnish#ent "e issued a$ainst the insurance policy. Perla Co#pania filed an 4R and a #otion to -uash% "ut "oth #otions were denied. After two years% Perla filed with SC a R.; certiorari with the SC alle$in$ Jud$e Re#oleteAs $rave a"use of discretion. *SSB1< 6=N C #ay issue $arnish#ent on PerlaAs insurance policy> Ges. RA *=< A $arnish#ent is an attach#ent for reachin$ any property or credits pertainin$ or paya"le to a !ud$#ent de"tor (forced novation+ "y su"stitution of creditors. C can "ind $arnishee "y service of writ of $arnish#ent and $arnishee need not "e i#pleaded% "ecause the $arnishee is a virtual party or forced intervenor. *nsurer assu#es the o"li$ation of payin$ in!ured third party. Separate action for $arnishee is needed only if $arnishee clai#s an interest in the property adverse to the !ud$#ent de"tor or denies the de"t.

14 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA the evidence or law% it #ay 'end suc+ *ud$'ent or &in ! order accordin$ly. (Sec. 0% Rule 07+

>>. Ne" Tri ! or Reconsider tion. RB51 07 'rounds of and period for filin$ #otion for new trial or reconsideration. Motion !or 2e% $rial

Resolution of #otion.
A #otion for new trial or reconsideration shall "e resolved within t+irty .260 d ys &ro' t+e ti'e it is su%'itted &or reso!ution. (Sec. 3% Rule 07+

Wit+in t+e period &or t (in$ n ppe ! % the a$$rieved party #ay #ove the trial court to set aside the !ud$#ent or final order and $rant a new trial for one or #ore of the followin$ causes #aterially affectin$ the su"stantial ri$hts of said party< (a+ Fr ud, ccident, 'ist (e or e)cus %!e ne$!i$ence which ordinary prudence could not have $uarded a$ainst and "y reason of which such a$$rieved party has pro"a"ly "een i#paired in his ri$htsK or ("+ Ne"!y disco#ered e#idence% which he could not% with reasona"le dili$ence% have discovered and produced at the trial% and which if presented would pro"a"ly alter the result. (Sec. 1% Rule 07+

Second #otion for new trial.

A #otion for new trial shall include all $rounds then availa"le and those not so included shall "e dee#ed waived. (=#ni"us #otion rule+ A second 'otion &or ne" tri ! % "ased on a $round not e9istin$ nor availa"le when the first #otion was #ade% #ay "e filed within the ti#e herein provided e9cludin$ the ti#e durin$ which the first #otion had "een pendin$. No party shall "e allowed a second 'otion &or reconsider tion of a !ud$#ent or final order. (Sec. ;% Rule 07+

Motion !or 1econsideration
6ithin the sa#e period% the a$$rieved party #ay also #ove for reconsideration upon the $rounds that< (Sec. 1% Rule 07+ (a+ the da#a$es awarded are e)cessi#e% ("+ that the e#idence is insu&&icient to !ustify the decision or final order% or (c+ that the decision or final order is contr ry to ! ".

1ffect of $rantin$ of #otion for new trial.
*f a new trial is $ranted in accordance with the provisions of this Rule% a. the ori$inal !ud$#ent or final order shall "e vacated% and ". the action shall stand for trial de novoK c. "ut the recorded evidence ta@en upon the for#er trial% in so far as the sa#e is #aterial and co#petent to esta"lish the issues% shall "e used at the new trial without reta@in$ the sa#e. (Sec. .% Rule 07+

Contents of #otion for new trial or reconsideration and notice thereof.
he #otion shall "e #ade in writin$ statin$ the $round or $rounds therefor% a written notice of which shall "e served "y the #ovant on the adverse party.

Partial new trial or reconsideration.
*f the $rounds for a #otion under this Rule appear to the court to affect the issues as to only a part% or less than all of the #atter in controversy% or only one% or less than all% of the parties to it% the court #ay order a new trial or $rant reconsideration as to such issues if severa"le without interferin$ with the !ud$#ent or final order upon the rest. (Sec. 7% Rule 07+

Motion !or 2e% $rial

A 'otion &or ne" tri ! shall "e proved in the #anner provided for proof of #otions. (a+ A #otion for the cause #entioned in para$raph (a+ of the precedin$ section shall "e supported "y affidavits of #erits which #ay "e re"utted "y affidavits. ("+ A #otion for the cause #entioned in para$raph ("+ shall "e supported "y affidavits of the witnesses "y who# such evidence is e9pected to "e $iven% or "y duly authenticated docu#ents which are proposed to "e introduced in evidence.

1ffect of order for partial new trial.

6hen less than all of the issues are ordered retried% the court #ay either a. enter a !ud$#ent or final order as to the rest% or ". stay the enforce#ent of such !ud$#ent or final order until after the new trial. (Sec. 8% Rule 07+

Motion !or 1econsideration

Re#edy a$ainst order denyin$ a #otion for new trial or reconsideration.

A #otion for reconsideration shall point out specifically the findin$s or conclusions of the !ud$#ent or final order which are not supported "y the evidence or which are contrary to law% #a@in$ e9press reference to the testi#onial or docu#entary evidence or to the provisions of law alle$ed to "e contrary to such findin$s or conclusions. A pro for#a #otion for new trial or reconsideration shall not toll the re$le#entary period of appeal. (Sec. &% Rule 07+

An order denyin$ a #otion for new trial or reconsideration is not ppe ! %!e% the re#edy "ein$ an appeal fro# the !ud$#ent or final order. (Sec. 9% Rule 07+

6hen to appeal.

Action upon #otion for new trial or reconsideration.
1. he trial court #ay set side t+e *ud$'ent or &in ! order nd $r nt ne" tri !% upon such ter#s as #ay "e !ust% (Sec. .% Rule 07+ or &. #ay deny t+e 'otion. (Sec. 9% Rule 07+ 0. *f the court finds that e9cessive da#a$es have "een awarded or that the !ud$#ent or final order is contrary to

An appeal #ay "e ta@en within fifteen (1;+ days after notice to the appellant of the !ud$#ent or final order appealed fro#. 6here a record on appeal is re-uired% the appellant shall file a notice of appeal and a record on appeal within thirty (0/+ days after notice of the !ud$#ent or final order. he period of appeal shall "e interrupted %y ti'e!y 'otion &or ne" tri ! or reconsider tion . No 'otion &or e)tension o& ti'e to file a #otion for new trial or reconsideration shall "e allowed. (Sec. &% Rule 3/+

14! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

Period of ordinary appeal.

he appeal shall "e ta@en within fifteen (1;+ days fro# notice of the !ud$#ent or final order appealed fro#. 6here a record on appeal is re-uired% the appellant shall file a notice of appeal and a record on appeal within thirty (0/+ days fro# notice of the !ud$#ent or final order. he period of appeal shall "e interrupted "y a ti#ely #otion for new trial or reconsideration. No #otion for e9tension of ti#e to file a #otion for new trial or reconsideration shall "e allowed. (Sec. 0% Rule 31+

reiterate his ar$u#ents in a different li$ht% the courts should "e slow to declare the sa#e outri$ht as pro for#a. ('uerra 1nterprises Co.% v. CC*% 52&801/% 17 April 197/+. 6hat is the effect of a 4R that is "ased on the sa#e $rounds as that of 4N > A 4R% if "ased on the sa#e $rounds as that for a 4N % is considered a 4N and has the sa#e effect. (Rodri$ue8 v. Rovira% .0 Phil. 37.+. 6hat @ind of fraud is necessary to "e a $round for a new trial> Craud% as a $round for a new trial% #ust "e e9trinsic or collateral% that is% it is the @ind of fraud which prevented the a$$rieved party fro# havin$ a trial or presentin$ his case to the court% or was used to procure the !ud$#ent without fair su"#ission of the controversy. *t is to "e distin$uished fro# intrinsic fraud which refers to the acts of a party at the trial which prevented a fair and !ust deter#ination of the case. 6hat is the rule on #ista@e that would constitute as a $round for a 4N > 4ista@e $enerally refers to #ista@es of fact% "ut #ay also conclude #ista@es of law% where in $ood faith% the defendant was #isled in the case. As a $eneral rule% a client is "ound "y the #ista@es of his counsel. =nly when the application of this $eneral rule would result in serious in!ustice should an e9ception thereto "e applied. 6hat is the rule on ne$li$ence> Ne$li$ence #ust "e e9cusa"le and $enerally i#puta"le to the party. :ut the ne$li$ence of counsel is "indin$ on the client !ust as the latter is "ound "y he #ista@es of his lawyer. 7owever% the ne$li$ence of the counsel #ay also "e a $round for a new trial% if it was so $reat such that the party was pre!udiced and prevented fro# fairly presentin$ his case. 6hat are the re-uisites for newly discovered evidence to warrant a new trial> 1. 4ust have "een discovered after trial. &. Could not have "een discovered and produced at the trial despite reasona"le dili$ence. 0. *f presented would pro"a"ly alter the result of the action. *s a #otion for reopenin$ the trial the sa#e as a 4N > No. A #otion for reopenin$ the trial% unli@e a 4N % is N= specifically #ention in the Rules% "ut is nevertheless a reco$ni8ed procedural recourse or device derivin$ validity and acceptance fro# lon$ esta"lished usa$e. *t differs fro# a 4N % which is proper only after pro#ul$ation of !ud$#ent% since a #otion to reopen #ay properly "e presented only after either or "oth parties have for#ally offered and closed their

Re$ ! do Notes *s there a difference "etween perfectin$ an appeal and ta@in$ an appeal> Ges. An appeal is ta@en "y filin$ a notice of appeal and the appeal is perfected upon the e9piration of the last day to appeal "y any party. *n cases where a record of appeal is re-uired% appeal is ta@en "y filin$ the notice of appeal and record on appeal% and the appeal is perfected upon the approval of the record on appeal. 6hen should a #otion for new trial "e filed> A 4N should "e filed with the period for appeal% that is% within 1; or 0/ days fro# notice of !ud$e#ent. A 4N suspends the runnin$ of the period to appeal "ut does not e9tend the ti#e within which an appeal #ust "e perfected (now% ta@en+% hence% if denied% the #ovant has only the :A5ANC1 of the re$le#entary period within which to perfect (ta@e+ his appeal. 6hen is 4N considered pro for#a> 1. *t is "ased on the sa#e $round as that raised in the a precedin$ 4N or 4R which has already "een denied. &. *t contains the sa#e ar$u#ents and #anner of discussion appearin$ in the prior opposition to the 4 , and which #otion was $ranted. 0. he new $round alle$ed in the second 4N already e9isted% was availa"le and could have "een alle$ed in the first 4N which was denied. 3. *t is "ased on the $round of insufficiency of evidence or that the !ud$#ent is contrary to law "ut does not specify the supposed defects in the !ud$#ent. ;. *t sis "ased on the $round of CA41 "ut does not specify the facts constitutin$ these $rounds andVor is not acco#panied "y an affidavit of #erits. Can there "e a pro for#a 4R a$ainst interlocutory orders> No. he concept of pro for#a 4R is properly directed a$ainst a final !ud$e#ent or order and not those a$ainst an interlocutory order. N= 1< H6here the circu#stances of a case show an intent on the part of the pleader to delay the proceedin$s% and his #otion reveals fide effort to present additional #atters do not #erely a "ona or to

14" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

evidence "efore !ud$#ent. Also% a 4N is "ased on the specific $rounds #entioned under the Rules% while a #otion to reopen the case is controlled "y no other rule than the para#ount interests of !ustice% restin$ entirely on the sound discretion of a trial court. 6hat should "e contained in an affidavit of #erits% necessary for a 4N > An affidavit of #erits is one which states a. the nature or character of the CA41 on which the 4N is "ased ". the facts constitutin$ the #ovantAs $ood and su"stantial defenses or valid causes of action. c. the evidence which he intends to present if his #otion is $ranted. An affidavit of #erits should state facts and not #ere opinions or conclusions of law. 6hat is the effect of a 4N "y an affidavit of #erits> he 4N is denied. that is not acco#panied

6hat is the dan$er of filin$ a pro for#a 4N > 6hen the C declares an 4N to "e pro for#a% the #ovant loses his ri$ht to appeal. hus% the decision "eco#es final and e9ecutory. Cansino v. CA CAC S< ,anilo Cansi#o% 5inda de Jesus and 1lena 4esa constructed houses in lots% "elievin$ that the land was pu"lic land. :ut% these lots were owned "y Spouses Castro. Castro spouses filed in 4e C a co#plaint for unlawful detainer and treated the #atter as a su##ary procedure. 4e C denied the co#plaint and ruled that the CastroAs should first prove prior physical possession of property in an e!ect#ent suit. R C affir#ed 4 C% sayin$ that there was no proof of prior possession. *n a #otion for reconsideration in the R C% the Castro spouses appended docu#entary evidence showin$ ownership over the land. R C reversed itself and declared that the land "elon$ed to CastroAs and was not pu"lic land. CA affir#ed R C% declarin$ that Cansino was not a"le to prove ownership. *SSB1< 6=N R CAs consideration of the docu#entary evidence of land ownership on 4R is proper> No. RA *=< A 4otion for Reconsideration (4R+ cannot "e used as a vehicle to introduce new evidence. 4R is proper only if the findin$s "y the C are not supported "y the evidence so presented. he Castro spouses should have a 4N . hey did not have any !ustification for the delay in presentin$ the evidence. PA5 v. Salcedo CAC S< 4elanio Salcedo% a PA5 e#ployee% was accused of stealin$ "all "earin$s and sellin$ the# to A"ala!on% who in turn sold the $oods to a store. PA5 ar"itrarily dis#issed Salcedo and filed false char$es of -ualified theft. Bpon investi$ation% Salcedo was e9onerated "ut PA5 still refused to reinstate Salcedo. Salcedo% with PA5 1#ployees Association (PA51A+ filed an action for reinstate#ent with "ac@ salaries a$ainst PA5. C ordered PA5 to reinstate Salcedo. CA reversed the C and denied the 4R. :ut "efore Salcedo received notice of the denial of the 4R% Salcedo filed an additional petition in support of the 4R. CA reversed itself and order C to receive testi#ony of Ro#luo 4atro. *SSB1< 6=N testi#ony of 4atro should "e received "y the C> Ges. Ratio< Salcedo had not "een ne$li$ent in procurin$ 4atroAs testi#ony. Salcedo only discovered 4atro% upon 4atroAs approachin$ of SalcedoAs counsel. 4atroAs testi#ony was to the effect that the store "ou$ht the "all "earin$s fro# 4atro% who $ot the# not fro# Salcedo "ut fro# Carte$ana and Calderon. 4atro @ept -uiet "ecause of his fear of !eopardi8in$ his e#ploy#ent in PA5. 4atroAs testi#ony can

*s there an e9ception to the rule that affidavits of #erits should acco#pany an 4N > Ges. An affidavit of #erits need not "e attached with an 4N % when< a. he !ud$#ent is null and void as where the court has no !urisdiction over the defendant or the su"!ect #atter. ". he !ud$#ent is procedurally defective as where !ud$#ent "y default was rendered "efore the re$le#entary period to answer had e9pired. c. he defendant was unreasona"ly deprived of his day in court% as when no notice of hearin$ was furnished hi# in advance. 6hat should "e contained in an affidavit of #erits for a 4R> None. Affidavits of #erits are N= re-uired in 4R. *s an order denyin$ an 4R or 4N appeala"le> No. An order denyin$ a 4N or 4R is N= appeala"le. he re#edy of the #ovant is an appeal fro# the !ud$#ent or final order in due ti#e. *f the defendant file for a 4N or 4R of the decision of the trial court% and the plaintiff see@s to perfect an appeal of the decision% what is the proper procedure for the trial court> he court should withhold action on the plaintiffAs appeal% until after the 4N or 4R shall have "een resolved. 9 utist Notes

he ti#e for filin$ an 4N is the ti#e for appeal. Can the ti#e for filin$ an 4N "e e9tended> No. 19cept when the case is pendin$ in the SC. (7a"aluyas v. Japson% 13& SCRA &/8+.

149 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

chan$e the result of the suit dependin$ on whose testi#ony is $iven credence% since the new evidence #ay affect the credi"ility of the testi#ony of the witness. People v. A#parado CAC S< CC* found Nor#an A#parado $uilty of #urder for sta""in$ 4anuel 4a$hanoy. SC affir#ed the CC*As decision. A#aprado filed a 4N to introduce the testi#ony of Antonio Cachin and 4anuel Au8a. A#parado only @new of Cachin and Au8a fro# the SC decision. *SSB1< 6=N the testi#ony of Cachin and Au8a can "e considered as newly discovered evidence> Ges. RA *=< he conviction of the accused was "ased on a sin$le testi#ony of Ro$elio Patan$an. he testi#ony of Cachin and Au8e would refute that Patan$an was i##ediately present after 4a$hanoyAs sta""in$. he new witnesses were only discovered after the SC rendered its decision. 7el#uth% Jr. v. People CAC S< Joseph 7el#uth% Cernand 7er"uella and Silverio )illa#or were char$ed in the Sandi$an"ayan for falsification of pu"lic docu#ents. hey were alle$ed to have for$ed the si$nature of A-uiliana Reyes% which caused the transfer of ri$hts to a "urial lot in the 4anila South Ce#etery. Sandi$an"ayan ac-uitted )illa#or "ut convicted 7el#uth% althou$h the records were devoid of direct evidence lin@in$ 7el#uth to the act% as superintendent of the ce#etery. 7el#uth filed a petition to e9culpate hi#self sayin$ he was convicted "ased on circu#stantial evidence. After% 7el#uth was convicted% 7er"uella su"#itted an affidavit which e9culpated 7el#uth. 7el#uth filed a supple#ental petition to ad#it 7er"uellaAs affidavit. RA *=< Affidavit of 7er"uella was si$nificant and could result in alterin$ the Sandi$an"ayan decision and ac-uittin$ 7el#uth. he supple#ental petition to ad#it 7er"uellaAs affidavit should "e considered as an 4N . People v. ,el 4undo CAC S< )ictorino de 4undo was char$ed with si9 (.+ counts of rape "y her ten year old dau$hter% 4arivic del 4undo. he 4edico25e$al Report (&0 Au$ust 1993+ "y ,r. Concepcion% a city health officer was presented. ,r. Concepcion found that there was positive showin$ of va$inal penetration. =n 17 Nove#"er 1993% 4arivic presented an affidavit of desistance. ,espite the desistance "y the victi#% the C convicted del 4undo of rape. ,el 4undo filed a 4N % presentin$ the N:*As 4edical Report (0/ Au$ust 199;+% which found that the victi#As physical vir$inity was preserved. *SSB1< 6=N 4N should "e $ranted "ased on N:* 4edical Report> Ges.

RA *=< Althou$h the 4N was $ranted% the N:* #edical report was not considered as newly discovered evidence. he 4N was $ranted "ased on the "roader $round of su"stantial !ustice due to the variance "etween the #edical reports of the city health officer and the N:*. here was a su"stantial dou"t as to del 4undoAs $uilt. (li"eral construction of the rules+ Cuenca v. People CAC S< 1dil"erto Cuenca was found $uilty "y the C of violation of rust Receipts 5aw. CA and SC affir#ed the conviction. Cuenca filed for su"stitution of counsel with a #otion for leave to file 4N % "ased on newly discovered evidence (affidavit of CuencaAs "rother+. CA $ranted su"stitution "ut denied the 4N . *SSB1< 6=N 4N should "e $ranted> Ges. RA *=< Rodolfo Cuenca stated in his affidavit that their co#pany C,CP did not pay A"ra the a#ount correspondin$ the steel #aterials covered under the trust receipts and that he $ave specific instructions to their co#panyAs treasurer not to pay the trust receipts issued "y China"an@. Rodolfo accepted personal responsi"ility for the trust receipts. 1dil"erto% thus% had no power to cause the pay#ent of the trust receipts. he RodolfoAs ad#ission a$ainst interest was ad#itted as new evidence. > no reason !or change o! mind' t %as an a!ter> thoght' -orn out o! conspirac"' ?here that is involved& there is !raud' EFuitable reason !or M2$ disappears' :P* v. )eloso

150 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA ". "ut if it finds said alle$ations to "e true% it shall set side t+e *ud$'ent or &in ! order or ot+er proceedin$s co#plained of upon such ter#s as #ay "e !ust. hereafter the case shall stand as if such !ud$#ent% final order or other proceedin$ had never "een rendered% issued or ta@en. he court shall then proceed to hear and deter#ine the case as if a ti#ely #otion for a new trial or reconsideration had "een $ranted "y it. (Sec. .% Rule 08+

>>I. Re!ie& &ro' Jud$'ents, Orders or Ot+er Proceedin$s .Ru!e 2I0 RB51 08 'rounds for Petition for Relief fro# Jud$#ents% =rders or =ther Proceedin$s. Petition !or relie! !rom judgment& order& or other proceedings'

W+en *ud$'ent or &in ! order is entered, or ny ot+er proceedin$ is t+ere &ter t (en $ inst p rty in ny court t+rou$+ &r ud, ccident, 'ist (e, or e)cus %!e ne$!i$ence% he #ay file a petition in such court and in the sa#e case prayin$ that the !ud$#ent% order or proceedin$ "e set aside. (Sec. 1% Rule 08+

Procedure where the denial of an appeal is set aside.
6here the denial of an appeal is set aside% the lower court shall "e re-uired to $ive due course to the appeal and to elevate the record of the appealed case as if a ti#ely and proper appeal had "een #ade. (Sec. 7% Rule 08+

Petition !or relie! !rom denial o! appeal'

6hen a !ud$#ent or final order is rendered "y any court in a case% and a party thereto% "y fraud% accident% #ista@e% or e9cusa"le ne$li$ence% + s %een pre#ented &ro' t (in$ n ppe !% he #ay file a petition in such court and in the sa#e case prayin$ that the appeal "e $iven due course. (Sec. &% Rule 08+

SC C*RCB5AR N=. ;298 =< A55 1O1CB *)1 JB,'1S SB:J1C < R1?B*R141N S C=R 71 PB:5*CA *=N =C JB,*C*A5 N= *C1S AN, = 71R S*4*5AR ANN=BNC141N S.
o forestall co#plaints fro# pu"lishers of newspapers relative to the participation of pu"lications not -ualified to pu"lish !udicial notices and other si#ilar announce#ents in the distri"ution "y raffle of the said notices and other si#ilar announce#ents in the distri"ution "y raffle of the said notices and to prevent the co##ission of any irre$ularity% unnecessary co##ercialis# and unfair co#petition a#on$ co##unity newspapers% all 19ecutive Jud$es concerned should strictly co#ply with the followin$ provisions of Presidential ,ecree No. 1/79 Q1977R< 1. IS1C *=N 1. All notices of auction sales in e9tra!udicial foreclosure of real estate #ort$a$e under Act No. 010;% as a#ended% !udicial notices such as notices of sale on e9ecution of real properties% notices in special proceedin$s% court orders and su##onses and all si#ilar announce#ents arisin$ fro# court orders andVor periodical of $eneral circulation in particular provinces andVor cities shall "e pu"lished in a newspaper or periodical of $eneral circulation in particular provinces andVor cities shall "e pu"lished in newspapers% or pu"lications pu"lished% edited and circulated in the sa#e city andVor province where the re-uire#ent of $eneral circulation applies< Provided% hat the province or city where the pu"licationTs principal office is located shall "e considered the place where it is edited and pu"lished< Provided% !urther% hat in the event there is no newspaper or periodical pu"lished in the locality% the sa#e #ay "e pu"lished in the newspaper or periodical pu"lished% edited and circulated in the nearest city or province< Provided% !inall"% hat no newspaper or periodical which has not "een authori8ed "y law to pu"lish and which has not "een re$ularly pu"lished for at least one year "efore the date of pu"lication of the notices or announce#ents which #ay "e assi$ned to it% shall "e -ualified to pu"lish the said noticesKI and &. IS1C. &. he 19ecutive Jud$e of the QRe$ional rial CourtR shall desi$nate a re$ular wor@in$ day and a definite ti#e each wee@ durin$ which the said !udicial notices or advertise#ents shall "e distri"uted personally "y hi# for pu"lication to -ualified newspapers or periodicals as defined in the precedin$ section% which distri"ution shall "e done "y raffle< Provided% hat should the circu#stances re-uire that

A petition provided for in either of the precedin$ sections of this Rule #ust "e 1. verified% &. filed within si)ty .560 d ys &ter t+e petitioner !e rns o& t+e *ud$'ent, &in ! order, or ot+er proceedin$ to %e set side % and not 'ore t+ n si) .50 'ont+s &ter suc+ *ud$'ent or &in ! order " s entered, or suc+ proceedin$ " s t (en K and 0. #ust "e acco#panied with affidavits showin$ the fraud% accident% #ista@e% or e9cusa"le ne$li$ence relied upon% and the facts constitutin$ the petitionerTs $ood and su"stantial cause of action or defense% as the case #ay "e. (Sec. 0% Rule 08+

i#e for filin$ petitionK contents and verification.

=rder to file an answer.
*f the petition is sufficient in for# and su"stance to !ustify relief% the court in which it is filed% shall issue an order re-uirin$ the adverse parties to ns"er the sa#e "it+in &i&teen ./40 d ys &ro' t+e receipt t+ereo& . he order shall "e served in such #anner as the court #ay direct% to$ether with copies of the petition and the acco#panyin$ affidavits. (Sec. 3% Rule 08+

Preli#inary in!unction pendin$ proceedin$s.

he court in which the petition is filed% #ay $rant such preli#inary in!unction as #ay "e necess ry &or t+e preser# tion o& t+e ri$+ts o& t+e p rties % upon the filin$ "y the petitioner of a "ond in favor of the adverse party all da#a$es and costs that #ay "e awarded to hi# "y reason of issuance of such in!unction or the other proceedin$s followin$ the petitionK "ut such in!unction shall not oper te to disc+ r$e or e)tin$uis+ ny !ien "+ic+ t+e d#erse p rty ' y + #e c-uired upon t+e property o& t+e petitioner . (Sec. ;% Rule 08+

Proceedin$s after answer is filed.
After the filin$ of the answer or the e9piration of the period therefor% the court shall hear the petition and if after such hearin$% a. it finds that the alle$ations thereof are not true% the petition s+ !! %e dis'issedK

151 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 another day "e set for the purpose% he shall notify in writin$ the editors and pu"lishers concerned at least three Q0R days in advance of the desi$nated date< Provided% !urther% hat the distri"ution of the said notices "y raffle shall "e dispensed with in case only one newspaper or periodicals is in operation in a particular province or city.I Attention is also invited to the followin$ provisions of Presidential ,ecree No. 1/79< 1. IS1C. ;. No pu"lishers% editors% #edia personnel or any other person shall directly or indirectly offer or $ive #oney% co##ission or $ift of any @ind to 19ecutive Jud$es of the QRe$ional rial CourtsR or any court e#ployee in consideration of the award of le$al and !udicial notices and si#ilar announce#ents defined in Section 1 hereof. Neither shall the latter directly or indirectly de#and of or receive fro# the for#er #oney% co##ission or $ifts of any @ind in consideration of any pu"lication herein referred toKI and &. IS1C. .. )iolation of any provision of this ,ecree shall "e punished "y a fine of not less than five thousand pesos QP;%///.//R nor #ore than twenty thousand pesos QP&/%///.//R and i#prison#ent for not less than si9 Q.R #onths nor #ore than two Q&R years. he offendin$ 19ecutive Jud$e or court personnel shall "e perpetually dis-ualified fro# holdin$ any pu"lic office in the $overn#ent.I Cor strict co#pliance.

JONATHAN PAMPOLINA

or proceedin$s% and N= fro# the date he actually read the sa#e. he si9 #onth period is co#puted fro# the date of actual entry of the order or !ud$#ent% which is to "e also the date of the finality of the !ud$e#ent or final order. (,iri$e v. :iranya% 52&&/00 0/ July 19..+ 4ust the petition for relief fro# !ud$#ent "e acco#panied with an affidavit of #erit> Ges. An affidavit of #erits #ust acco#pany the petition and the petition itself #ust "e verified. 4uch li@e a 4N % the a"sence of an affidavit of #erits is a fatal defect and warrants the denial of the petition. 6hat are the two steps or hearin$s in a petition for relief> 1. A hearin$ to deter#ine whether the !ud$#ent% order or proceedin$ should "e set aside. &. *f in the affir#ative% a hearin$ on the #erits of the case. 6ill failure to answer the petition for relief constitute a default> No. 1ven without the answer of the respondent to the petition% the court will still have to hear the petition and deter#ine the #erits. *s an order $rantin$ a petition for relief appeala"le> No. An order $rantin$ a petition for relief is interlocutory and non2appeala"le. 9 utist Notes

SC Circu! r 5AD1

Re$ ! do Notes 6here should a petition for relief of !ud$#ent (PCR+ "e filed> he PCR should "e filed in and resolved "y the court in the sa#e case fro# which the petition arose. 6hen is a petition for relief of !ud$#ent allowed> A petition for relief is an e-uita"le re#edy and is allowed only in e9ceptional cases fro# final !ud$#ents or orders where N= other re#edy is availa"le. A petition for relief of !ud$#ent will not "e entertained when the proper re#edy is appeal or certiorari. Are the two periods for filin$ a petition for relief of !ud$#ent e9tendi"le> No. he two periods for filin$ the petition are not e9tendi"le and never interrupted. (?ui!ano v. a#eta% 521.370% &/ April 19.1+ Cro# what ti#e are the periods for filin$ a petition for relief fro# !ud$#ent rec@oned> he ./2day period is rec@oned fro# the ti#e the party ac-uired @nowled$e of the order% !ud$#ent

6hat is the effect of a petition for relief that is filed in a different court% other than the one hearin$ the case> 6here the petition for relief was filed in another court and doc@eted as a new case therein% it should "e dis#issed "y the court in which it was filed for lac@ of !urisdiction. (Servicewide Specialists% *nc. v. Sheriff of 4anila% 'R No. 73;8.% 17 =cto"er 198.% 13; SCRA 109+ 6hat is the purpose of the in!unction "ond filed "y the petitioner> he in!unction "ond here is N= to answer for the satisfaction of the !ud$#ent sou$ht to "e set aside "ut for the da#a$es and costs to "e awarded to the defendant "y reason of the issuance of the in!unction. Cere8o v. uason (supra'+ 5ina v. CA CAC S< Northern 4otors sued Ale9 5ina for a su# of #oney with da#a$es.
April &&S 4ay ; 5ina was served su##ons 5ina filed for #otion for e9tension to file responsive pleadin$ "y re$ular #ail.

152 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 4ay 8 4ay 19 Northern 4otors #oved for order of default 5ina opposed Northern 4otorAs #otion sayin$ he had already filed a #otion for e9tension 4ay &. C declared 5ina in default 4ay &7 5ina files his answer July &8 C ruled for Northern 4otors Au$ 11 5ina filed a #otion to set aside !ud$#ent Au$ &; C denied 5inaAs #otion Sall dates occurred in 198&

JONATHAN PAMPOLINA

5ina then filed with the CA a petition for certiorari and prohi"ition. *SSB1< 6=N 5ina was entitled to a #otion for e9tension to file responsive pleadin$> No. RA *=< he $rantin$ of additional ti#e to file an answer is addressed to the sound discretion of the trial court. A PCR could have "een !ust as plain% ade-uate and speed re#edy as certiorari. he CAs declaration that 5ina was in default was an i#plied denial of 5inaAs #otion for e9tension. ,*SS1N < C should have resolved the #otion for e9tension "efore declarin$ 5ina in default. uason v. CA CAC S< )ictoria uason file a petition for annul#ent of her #arria$e to 1#ilio uason "ased on Art.0. CC (psycholo$ical incapacity+% clai#in$ that her hus"and physically a"used her% was into dru$s and was a wo#in8er. 1#ilioAs counsel failed to appear and was declared to have su"#itted the case for decision. C annulled the #arria$e. Clai#in$ that he was denied due process% 1#ilio filed for PCR "ut was denied "y the C. CA affir#ed CAs denial of the PCR. *SSB1< 6=N PCR is warranted> No. RA *=< 1#ilio failed to appear in the hearin$s "ecause he was confined for #edical reasons (treat#ent for dru$ dependency+. Counsel of 1#ilio was ine9cusa"ly ne$li$ent when he did not infor# the C of his clientAs confine#ent and was out of the country durin$ the ti#e of the hearin$s. PCR is availa"le only under e9ceptional cases% where there is no other re#edy availa"le or ade-uate. PCR is not availa"le when the loss of the re#edy was due to the petitionerAs own fault. A$an v. Nueva CAC S< ,iosdada Nueva% with #arital consent% sold a parcel of land in Ca$ayan de =ro City to Philadelphia A$an under a pacto de retro sale for P&1%///. Nueva failed to repurchase the land within the si92#onth period. 6hen Nueva died% the land was e9tra2 !udicially partitioned. he title to the land was reconstituted under the na#es of NuevaAs children% Ann and 5ou. A$an filed a petition for reconsideration of ownership a$ainst NuevaAs children. NuevaAs children answered that the pacto de retro sale was actually an e-uita"le #ort$a$e. C consolidated the ownership of the land with A$an :B $ave the Nueva children the ri$ht to repurchase the sa#e within 0/ days. A$an refused to accept the rede#ption price and so filed a PCR clai#in$ that the $rant of a 0/2

day rede#ption was #ere surplusa$e. C deleted the rede#ption provision of its decision. CA reversed the C sayin$ the PCR is not a proper re#edy% since there is another ade-uate re#edy availa"le to A$an% na#ely 4N or appeal. *SSB1< 6=N PCR should "e $ranted "ased on the "elief that the decision of the C on rede#ption was a #ista@e> No. RA *=< he #ere "elief of A$an that the $rant of rede#ption was #ere surplusa$e was not the #ista@e conte#plated under Rule 08 to "e a $round for a PCR. he erroneous opinion of A$an cannot "e e#ployed as a $round for PCR. Judicial errors of C can "e corrected "y an appeal. 4oreover% A$an could not clai# an honest "elief% "ecause he only #oved for the PCR after the offer rede#ption% and not i##ediately after the C !ud$#ent. 5e$arda v. CA CAC S< New Cathay entered into a lease a$ree#ent over land and its i#prove#ents throu$h Ro"erto Ca"rera with the owner )ictoria 5e$arda. 5e$arda refused to si$n the lease. New Cathay filed a suit for specific perfor#ance with preli#inary in!unction. 5e$ardaAs counsel% ,ean Antonio Coronel% filed a #otion to e9tend ti#e to file an answer "ut had failed to file an answer. C declared 5e$arda in default. C ordered 5e$arda to e9ecute lease. 5e$ardaAs counsel% upon receipt of the !ud$#ent% did not ta@e any action. 5e$ardaAs property was su"!ect to e9ecution and later sold to Ca"rera. 5e$arda% then% prevailed on her counsel% Antonio% who filed a PCR in the CA. Antonio assured his client% 5e$arda% that the co#plaint a$ainst her would "e withdrawn. CA found ,ean Antonio to "e ne$li$ent "ut dis#issed the PCR. After ter#inatin$ Antonio% 5e$arda found a new lawyer% who filed a Rule .; petition with the SC. *SSB1< 6=N there was ne$li$ence of counsel that would !ustify a PCR> Ges. RA *=< Antonio% as counsel for 5e$arda% had a"andoned his clientAs cause and is $uilty of $ross and rec@less ne$li$ence. Antonio failed to file a proper 4 , or draw a co#pro#ise in the R C. 5e$arda% who was a"road #ost of the ti#e% only learned of the adverse decision fro# the secretary of the law fir#. Cu@u8u#i v. Sanritsu CAC S< C ordered Gusu@e Cu@u8u#i to pay Sanritsu 'reat *nternational Corporation% etsu!i 4aruya#a and A@ira Ju"ota.
Ce" 9S Ce" &0 4ay ; 4ay 7 June & June 1/ June && Cu@u8u#i received notice of !ud$#ent Cu@u8u#i filed a 4R (13 days fro# notice of !ud$#ent+ Cu@u8u#i received C !ud$#ent denyin$ his 4R (only has one day to file appeal+ Cu@u8u#i filed a notice of appeal (one day late+  denial C denies notice of appeal Cu@u8u#i receives denial of notice of appeal Cu@u8u#i files a PCR.

153 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 Sall dates occurred in 1999

JONATHAN PAMPOLINA

Cu@u8u#iAs PCR was "ased on the $round that his counsel% Atty. Polines% suffered hi$h "lood pressure on 4ay .% 1999 and was as@ed to rest for 0 days% as evidenced "y a #edical certificate. C denied the PCR. *SSB1< 6=N Cu@u8u#i was entitled to a PCR> N=. RA *=< A PCR cannot "e $ranted if the loss of the re#edy was due to petitionerAs own ne$li$ence. =therwise% resortin$ to PCR would "e tanta#ount to revivin$ a ri$ht of appeal which has already "een lost. Cu@u8u#iAs failure to file a notice of appeal on ti#e is N= e9cusa"le. 4edical certificate as@ed Atty. Polines to rest for three days (4ay .28+% yet counsel filed notice of appeal on 4ay 7% without infor#in$ the C of his hi$h "lood pressure. he #edical certificate was also procured only on June 18. he alle$ation of hi$h "lood pressure was a #ere afterthou$ht.

154 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA "+ which he shall certify as co#plete% to the proper Re$ional rial Court. c+ A copy of his letter of trans#ittal of the records to the appellate court shall "e furnished the parties. (Sec. .% Rule 3/+

>>II. Appe ! 1. Cro# 4 C to R C (Rule 3/+ RB51 3/ APP1A5 CR=4 4BN*C*PA5 R*A5 C=BR S = 71 R1'*=NA5 R*A5 C=BR S 6here to appeal.
An appeal fro# a !ud$#ent or final order of a 4unicipal rial Court #ay "e ta@en to the Re$ion ! Tri ! Court e)ercisin$ *urisdiction o#er t+e re to "+ic+ t+e &or'er pert ins. he title of the case shall re#ain as it was in the court of ori$in% "ut the party appealin$ the case shall "e further referred to as the appellant and the adverse party as the appellee. (Sec. 1% Rule 3/+

Procedure in the Re$ional rial Court.

6hen to appeal.

An appeal #ay "e ta@en within &i&teen ./40 d ys after notice to the appellant of the !ud$#ent or final order appealed fro#. 6here a record on ppe ! is re-uired % the appellant shall file a notice of appeal and a record on appeal "it+in t+irty .260 d ys after notice of the !ud$#ent or final order. he period of appeal shall "e interrupted "y a ti#ely #otion for new trial or reconsideration. No #otion for e9tension of ti#e to file a #otion for new trial or reconsideration shall "e allowed. (Sec. &% Rule 3/+

(a+ Bpon receipt of the co#plete record or the record on appeal% the cler@ of court of the Re$ional rial Court shall noti&y t+e p rties of such fact. ("+ 6ithin fifteen (1;+ days fro# such notice% it shall "e the duty o& t+e ppe!! nt to su%'it 'e'or ndu' which shall "riefly discuss the errors i#puted to the lower court% a copy of which shall "e furnished "y hi# to the adverse party. 6ithin fifteen (1;+ days fro# receipt of the appellantTs #e#orandu#% t+e ppe!!ee ' y &i!e +is 'e'or ndu'. F i!ure o& t+e ppe!! nt to &i!e 'e'or ndu' s+ !! %e $round &or dis'iss ! o& t+e ppe !. (c+ Bpon the filin$ of the #e#orandu# of the appellee% or the e9piration of the period to do so% the case shall "e considered su"#itted for decision. he Re$ional rial Court shall decide the case on the "asis of the entire record of the proceedin$s had in the court of ori$in and such #e#oranda as are filed. (Sec. 7% Rule 3/+

Appeal fro# orders dis#issin$ case without trialK lac@ of !urisdiction.

7ow to appeal.
he appeal is ta@en "y filin$ a notice o& ppe ! with the court that rendered the !ud$#ent or final order appealed fro#. he notice of appeal shall indicate the parties to the appeal% the !ud$#ent or final order or part thereof appealed fro#% and state the #aterial dates showin$ the ti#eliness of the appeal. A record on ppe ! shall "e re-uired only in special proceedin$s and in other cases of #ultiple or separate appeals. he for# and contents of the record on appeal shall "e as provided in section .% Rule 31. Copies of the notice of appeal% and the record on appeal where re-uired% shall "e served on the adverse party. (Sec. 0% Rule 3/+

*f an appeal is ta@en fro# an order of the lower court dis'issin$ t+e c se "it+out tri ! on t+e 'erits% the Re$ional rial Court #ay affir# or reverse it% as the case #ay "e. 1. *n case of &&ir' nce and the $round of dis#issal is lac@ of !urisdiction over the su"!ect #atter% the Re$ional rial Court% if it has !urisdiction thereover% shall try the case on the #erits as if the case was ori$inally filed with it. &. *n case of re#ers !% the case shall "e re#anded for further proceedin$s. *f the c se " s tried on t+e 'erits %y t+e !o"er court "it+out *urisdiction o#er t+e su%*ect ' tter% the Re$ional rial Court on appeal shall not dis#iss the case if it has ori$inal !urisdiction thereof% "ut shall decide the case in accordance with the precedin$ section% without pre!udice to the ad#ission of a#ended pleadin$s and additional evidence in the interest of !ustice. (Sec. 8% Rule 3/+

Perfection of appealK effect thereof.

he perfection of the appeal and the effect thereof shall "e $overned "y the provisions of section 9% Rule 31.

Applica"ility of Rule 31.

Appellate court doc@et and other lawful fees.

6ithin the period for ta@in$ an appeal% the appellant shall p y to t+e c!er( o& t+e court "+ic+ rendered t+e *ud$'ent or &in ! order ppe !ed &ro' the full a#ount of the appellate court doc@et and other lawful fees. Proof of pay#ent thereof shall "e trans#itted to the appellate court to$ether with the ori$inal record or the record on appeal% as the case #ay "e. (Sec. ;% Rule 3/+

he other provisions of Rule 31 shall apply to appeals provided for herein insofar as they are not inconsistent with or #ay serve to supple#ent the provisions of this Rule. (Sec. 9% Rule 3/+

OVERVIEW OF APPEAL FROC CTC TO RTC
4 C Jud$#ent ↓ Notice of Jud$#ent of 4 C to Appellant ↓ Perfection of Appeal (Notice of Appeal 1; ,ays fro# notice of !ud$#ent+ (Record of Appeal 0/ ,ays fro# notice of !ud$#ent+ ↓ rans#ittal of Records to R C "y 4 C Cler@ of Court (1; days fro# perfection+ ↓ Receipt of Records "y R C R C $ives Notice to Parties of Appeal

,uty of the cler@ of court.

6ithin fifteen (1;+ days fro# the perfection of the appeal% the cler@ of court or the "ranch cler@ of court of the lower court shall a+ trans#it the ori$inal record or the record on appeal% to$ether with the transcripts and e9hi"its%

155 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 ↓ AppellantAs 4e#orandu# is Su"#itted (1; days fro# Notice "y R C of Appeal+ S*f no #e#orandu# is su"#itted "y the appellant% the appeal is dis#issed. ↓ ApelleeAs 4e#orandu# is su"#itted. (1; days fro# notice of appellantAs #e#orandu#+ ↓ Appeal is dee#ed su"#itted for ,ecision. (upon su"#ission of appelleeAs #e#orandu# or e9piration of the period to file the sa#e+

JONATHAN PAMPOLINA

with it. he consent of the parties to such assu#ption of ori$inal !urisdiction over the case is not re-uired. his new rule under Sec. 8% para. &% Rule 3/ a"andons the previous rulin$s which #ade it optional on the part of the parties whether or not to su"#it to such ori$inal !urisdiction of the R C. 6ill the R C% e9ercisin$ appellate !urisdiction over a case tried "y the 4 C on the #erits "ut without !urisdiction% "e "ound #erely to the records of the 4 C> No. Since there was an actual trial of the case on the #erits% which nor#ally entailed reception of evidence on which the !ud$#ent of the lower court was "ased% in the interest of !ustice% the parties #ay "e allowed to file a#ended pleadin$s and adduce additional evidence at the trial of the case in the R C. 4=,1S W P1R*=,S =C APP1A5 (5acsa#ana v. *AC% 'R No. 7013.2;0% &. Au$ust 198.+S
4=,1 =C APP1A5 =rdinary Appeals "y 4ere Notice of Appeal (4 C 2F R C+ (R C 2F CA+ Appeals in Special Proceedin$s and other cases wherein #ultiple appeals are allowed (record of appeal is re-uired+ P1R*=, =C APP1A5 1; day period for filin$ an appeal. (interrupted "y a 4N or 4R+. No e9tension of ti#e to file such a notice of appeal is needed% #uch less allowed. 0/ day period for filin$ an appeal. (interrupted "y a 4N or 4R+. A #otion for e9tension of ti#e to file the record on appeal #ay "e $ranted. S he thirty day period #ay "e e9tended "ecause% where the record is volu#inous or the appellant has other pressin$ #atters to attend to% it #ay not "e practica"le to su"#it the record on appeal within the re$le#entary period. (Ro-ue v. 'uni$undo% 89 SCRA 178% 180+ 1; day period for filin$ a petition for review. :ut if in case an 4R or 4N is filed within the said period% then there is a 1; day period for &i!in$ n ppe !, &ro' notice o& t+e reso!ution denyin$ t+e CR or CNT. (Sec. 1% Rule 3&+ he CA #ay $rant an additional period of 1; days only within which to file the petition for review. No further e9tension shall "e $ranted e9cept for the #ost co#pellin$ reason and in no case to e9ceed 1; days. 1; day period for filin$ appeal fro# notice of the award% !ud$#ent% final order or resolution% or fro# the date of its last pu"lication% if pu"lication is re-uired "y law for its effectivity. (Sec. 3% Rule 30+ :ut if in case an 4R or 4N is filed within the sa#e period in accordance with the $overnin$ law of the court or a$ency concerned% then there is a 1; day period for filin$ an appeal% fro# notice of the resolution denyin$ the 4R or 4N . (Sec. 3% Rule 30+

Re$ ! do Notes 6hat are re-uired to "e indicated in the notice of appeal> 1. the parties to the suit &. the !ud$#ent or final order or part thereof appealed fro# 0. the #aterial dates showin$ the ti#eliness of the appeal. 6hat is the effect of non2pay#ent or delay in the pay#ent of appellate doc@et fee> 6hile co#pliance with the re-uire#ent for ti#ely pay#ent of doc@et fees on appeal is a #andatory re-uire#ent% the appellate court is not without power to #a@e e9ceptions thereto on !ustifia"le cause% instead of dis#issin$ the appeal on that sole $round. *n cases of appeal% what is the duty of the cler@ of court of the 4 C% where the action ori$inated> he 4 C cler@ of court shall elevate to the R C% where the appeal is filed% not !ust the ori$inal record or the record on appeal "ut as well as the transcripts and e9hi"its ta@en or su"#itted to the 4 C% within 1; days fro# the perfection of the appeal. A certification of the co#pleteness of the docu#ents trans#itted to the appellate court #ust "e furnished to the parties for their verification and appropriate action. 6ill notice "e effective if the appellate court $ives notice to the counsel of record in the lower court> Ges. 6here the party had appeared "y counsel in the inferior court% the notice conte#plated in Sec. 7% Rule 3/ should "e sent to the attorney. (1lli v. ,itan% 5217333% 0/ June 19.&+. :ut if the notice was sent to the party hi#self and he actually received the sa#e% such notice is valid and "indin$. ()aluen8uela v. :alayo% 5218708% 0/ 4arch 19.0+. Should the R C dis#iss outri$ht an appeal tried "y the 4 C% "ut involves a su"!ect #atter outside the !urisdiction of the 4 C> No. 6here the -uestion of law involves lac@ of !urisdiction over the su"!ect #atter and the R C has !urisdiction over thereover% the R C shall try the case on the #erits% as if the case was ori$inally filed

Appeals "y petition for review to the CA and SC. (4 C 2F R C 2F CA+ (4 C 2F R C 2F SC+

Appeals fro# ?uasi Judicial :odes to the CA (notice of appeal+

15 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 he CA #ay $rant an additional period of 1; days only within which to file the petition for review. No further e9tension shall "e $ranted e9cept for the #ost co#pellin$ reason and in no case to e9ceed 1; days. 1; day period to file appeal fro# notice o& *ud$'ent or of the deni ! o& +is CR filed in due ti#e and payin$ at the sa#e ti#e the correspondin$ doc@et fees. *n other words% in the event that a 4R is filed and denied% the period of fifteen days "e$ins to run a$ain fro# notice of denial. A #otion for e9tension of ti#e to file a petition for review on certiorari #ay "e filed with the SC within the re$le#entary period% payin$ at the sa#e ti#e the correspondin$ doc@et fee. An e9tension of only fifteen days for filin$ a petition for review #ay "e $ranted "y the CA% save in e9ceptionally #eritorious cases and it #ust "e filed and the correspondin$ doc@et fee paid within the re$le#entary period of appeal.

JONATHAN PAMPOLINA

Appeals Certiorari to SC (R C 2F SC+ (CA 2F SC+ (S: 2F SC+

"y the

Period of 19tension of i#e to file petition for review.

S here have "een su"se-uent chan$es in the Rules which affected the procedure in the 5acsa#ana rulin$% which have "een already incorporated in this outline. *n particular Rule 3& (Petition for Review of R C order to CA+ and Rule 30 (Appeals fro# ?uasi2 Judicial :odies+ 1nri-ue8 v. CA CAC S< 4el"a 4oncal 1nri-ue8 was stayin$ n the land of 1n$racia 4acaraya "y #ere tolerance. Bpon 1nri-ue8As refusal to "uy the land% 4acaraya sold the land to i$le. i$le wanted 1nri-ue8 to vacate% so she filed an unlawful detainer suit a$ainst 1nri-ue8. 1nri-ue8% in her answer with counterclai#% said that the land was co2owned with 4acaraya and thus she sold only 1V7 of the share of the property to i$le. 4e C $ranted unlawful detainer suit and ordered 1nri-ue8 to vacate. =n appeal% R C ordered parties to su"#it #e#oranda% "ut 1nri-ue8 failed to su"#it the sa#e within the 1;2day period. R C dis#issed 1nri-ue8As appeal. 1nri-ue8 filed an 4R adoptin$ her position in 4e C "ut was denied. =n appeal% the CA dis#issed 1nri-ue8As appeal sayin$ that under the Rules the filin$ of a #e#orandu# is a #andatory re-uire#ent. CA also denied 1nri-ue8As 4R. *SSB1< 6=N dis#issal of 1nri-ue8As petition was proper for failure to file the #e#orandu#> Ges. RA *=< 1nri-ue8 is duty2"ound to su"#it his #e#orandu#. An appellate court has no power to resolve an unassi$ned error% which does not affect the courtAs !urisdiction over the su"!ect #atter% save for a plain or clerical error. An appeal is a purely statutory ri$ht and in order to "e entitled thereto% the person clai#in$ such ri$ht #ust confor# to the lawAs conditions.

15! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA he failure of the petitioner to co#ply with any of the fore$oin$ re-uire#ents re$ardin$ the pay#ent of the doc@et and other lawful fees% the deposit for costs% proof of service of the petition% and the contents of and the docu#ents which should acco#pany the petition s+ !! %e su&&icient $round &or t+e dis'iss ! t+ereo& . (Sec. 0% Rule 3&+

&. Cro# 4 C to R C to CA (Rule 3&+ RB51 3& P1 * *=N C=R R1)*16 CR=4 71 R1'*=NA5 R*A5 C=BR S = 71 C=BR =C APP1A5S 7ow appeal ta@enK ti#e for filin$.
A party desirin$ to appeal fro# a decision of the Re$ional rial Court rendered in t+e e)ercise o& its ppe!! te *urisdiction #ay a. file a verified petition for review with the Court of Appeals% ". payin$ at the sa#e ti#e to the cler@ of said court the correspondin$ doc@et and other lawful fees% depositin$ the a#ount of P;//.// for costs% and c. furnishin$ the Re$ional rial Court and the adverse party with a copy of the petition. d. he petition shall "e filed and served within fifteen (1;+ days fro# notice of the decision sou$ht to "e reviewed or of the denial of petitionerTs #otion for new trial or reconsideration filed in due ti#e after !ud$#ent. Bpon proper #otion and the pay#ent of the full a#ount of the doc@et and other lawful fees and the deposit for costs "efore the e9piration of the re$le#entary period% the Court of Appeals #ay $rant an additional period of fifteen (1;+ days only within which to file the petition for review. No further e9tension shall "e $ranted e9cept for the #ost co#pellin$ reason and in no case to e9ceed fifteen (1;+ days. (Sec. 1% Rule 3&+

Action on the petition.

he Court of Appeals #ay 1. re-uire the respondent to &i!e co''ent on t+e petition% not a #otion to dis#iss% within ten (1/+ days fro# notice% or &. dis'iss t+e petition if it finds the sa#e to "e a. patently without #erit% ". prosecuted #anifestly for delay% or c. that the -uestions raised therein are too unsu"stantial to re-uire consideration. (Sec. 3% Rule 3&+

Contents of co##ent.
he co##ent of the respondent shall "e filed in seven (7+ le$i"le copies% acco#panied "y certified true copies of such #aterial portions of the record referred to therein to$ether with other supportin$ papers and shall (a+ state whether or not he accepts the state#ent of #atters involved in the petitionK ("+ point out such insufficiencies or inaccuracies as he "elieves e9ist in petitionerTs state#ent of #atters involved "ut without repetitionK and (c+ state the reasons why the petition should not "e $iven due course. A copy thereof shall "e served on the petitioner. (Sec. ;% Rule 3&+

Cor# and contents.
he petition shall "e filed in seven (7+ le$i"le copies% with the ori$inal copy intended for the court "ein$ indicated as such "y the petitioner% and shall (a+ state the full na#es of the parties to the case% without i#pleadin$ the lower courts or !ud$es thereof either as petitioners or respondentsK ("+ indicate the specific #aterial dates showin$ that it was filed on ti#eK (c+ set forth concisely a state#ent of the #atters involved% the issues raised% the specification of errors of fact or law% or "oth% alle$edly co##itted "y the Re$ional rial Court% and the reasons or ar$u#ents relied upon for the allowance of the appealK (d+ "e acco#panied "y clearly le$i"le duplicate ori$inals or true copies of the !ud$#ents or final orders of "oth lower courts% certified correct "y the cler@ of court of the Re$ional rial Court% the re-uisite nu#"er of plain copies thereof and of the pleadin$s and other #aterial portions of the record as would support the alle$ations of the petition. he petitioner shall also su"#it to$ether with the petition a certification under oath that he has not theretofore co##enced any other action involvin$ the sa#e issues in the Supre#e Court% the Court of Appeals or different divisions thereof% or any other tri"unal or a$encyK if there is such other action or proceedin$% he #ust state the status of the sa#eK and if he should thereafter learn that a si#ilar action or proceedin$ has "een filed or is pendin$ "efore the Supre#e Court% the Court of Appeals% or different divisions thereof% or any other tri"unal or a$ency% he underta@es to pro#ptly infor# the aforesaid courts and other tri"unal or a$ency thereof within five (;+ days therefro#. Zcerti&ic tion $ inst &oru' s+oppin$ [ (Sec. &% Rule 3&+

,ue course.

*f upon the filin$ of the co##ent or such other pleadin$s as the court #ay allow or re-uire% or after the e9piration of the period for the filin$ thereof without such co##ent or pleadin$ havin$ "een su"#itted% the Court of Appeals finds pri#a facie that the lower court has co##itted an error of fact or law that will warrant a reversal or #odification of the appealed decision% it #ay accordin$ly $ive due course to the petition. (Sec. .% Rule 3&+

1levation of record.
6henever the Court of Appeals dee#s it necessary% it #ay order the cler@ of court of the Re$ional rial Court to e!e# te t+e ori$in ! record o& t+e c se inc!udin$ t+e or ! nd docu'ent ry e#idence within fifteen (1;+ days fro# notice. (Sec. 7% Rule 3&+

Perfection of appealK effect thereof.

1ffect of failure to co#ply with re-uire#ents.

(a+ Bpon the ti#ely filin$ of a petition for review and the pay#ent of the correspondin$ doc@et and other lawful fees% the appeal is dee#ed perfected as to the petitioner. he Re$ional rial Court loses !urisdiction over the case upon the perfection of the appeals filed in due ti#e and the e9piration of the ti#e to appeal of the other parties. 7owever% "efore the Court of Appeals $ives due course to the petition% the Re$ional rial Court #ay issue orders for the protection and preservation of the ri$hts of the parties which do not involve any #atter liti$ated "y the appeal% approve co#pro#ises% per#it appeals of indi$ent liti$ants% order e9ecution pendin$ appeal in accordance with section & of Rule 09% and allow withdrawal of the appeal.

15" of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 ("+ 19cept in civil cases decided under the Rule on Su##ary Procedure% the appeal shall stay the !ud$#ent or final order unless the Court of Appeals% the law% or these Rules shall provide otherwise. (Sec. 8% Rule 3&+

JONATHAN PAMPOLINA

Su"#ission for decision.
*f the petition is $iven due course% the Court of Appeals #ay set the case for or ! r$u'ent or re-uire the parties to su%'it 'e'or nd within a period of fifteen (1;+ days fro# notice. he case shall "e dee#ed su"#itted for decision upon the filin$ of the last pleadin$ or #e#orandu# re-uired "y these Rules or "y the court itself. (Sec. 9% Rule 3&+

6hat @inds of -uestions #ay "e raised on appeal under Rule 3&> he appeal under Rule 3& #ay "e on either -uestions of fact% or of law% or on #i9ed -uestions of fact and law. Should lower courts or !ud$es that rendered the !ud$#ent or final order co#plained of "e i#pleaded as parties in the appeal> No. Rule 3& is a petition for the purpose of appeal and not petitions in ori$inal actions. 4endo8a v. ,avid CAC S< *n 1997% eresita 4endo8a ordered 0 pieces of furniture fro# :eth ,avid for P18;%.;/ with specification provided "y 4endo8a. 6hen the furniture was co#pleted% 4endo8a re!ected the $oods sayin$ they were of inferior -uality and as@ed for the refund of the initial deposit of P8/%.;/. ,avid refused to $ive the #oney "ac@. 4endo8a filed suit for collection of #oney a$ainst ,avid. 4 C dis#issed 4endo8aAs co#plaint% sayin$ ,avid is not lia"le to return the deposit "ecause there was already a perfected sale. =n appeal% R C ordered 4endo8a to pay the "alance and ordered ,avid to deliver the furniture upon pay#ent. CA dis#issed petition for review of 4endo8a for failure to append the C pleadin$s. *n a 4R% 4endo8a attached the C pleadin$s% "ut the 4R was still denied. *SSB1< 6=N petition for review to the CA should "e dis#issed outri$ht for failure to append the pleadin$s in the lower court> No. RA *=< Cailure to append the pleadin$s and #aterial portions of the record does not !ustify the outri$ht dis#issal of the petition. here was su"stantial co#pliance when the pleadin$s were attached to the 4R. CA decided without su"stantial evidence and should re-uired the C to elevate the records. CA should have ruled on the #erits. he sale was a #ade to order sale in which the furniture was #anufactured accordin$ to the specification of 4endo8a. ,avid did not co##it any "reach of the contract of sale.

=)1R)*16 =C APP1A5 CR=4 4 C = R C = CA
4 C ,ecision ↓ Appeal of 4 C ,ecision to R C ↓ R C ,ecision of Appeal ↓ Notice of R C ,ecision ↓ Cile Petition for Review of R C ,ecision with CA (1; days fro# notice of R C decision+ (1st 1O 1NS*=N< additional 1; day period to file petition "ut with pay#ent of doc@et fees+ (&nd 1O 1NS*=N< Additional 1; day period to file petition "ut only for e9ceptional cases+ SCA can dis#iss the petition under the $rounds on Sec. 3% Rule 3& ↓ CA can order appellee to file a co##ent to the petition ↓ Apellee files a Co##ent with the period or fails to file a co##ent upon e9piration of the period (1/ days fro# notice of CAAs order to co##ent+ ↓ CA $ives due course to the appeal or dis#isses the appeal. SCA can also order the R C to elevate the records% which the R C #ust co#ply with within 1; days fro# notice of the order ↓ *f the appeal is $iven due course% CA #ay set the case for oral ar$u#ent or re-uire parties to su"#it #e#oranda. (1; days fro# notice of order+ ↓ Parties $ive oral ar$u#ents or su"#it #e#oranda. ↓ CA decides the appeal. ( he case shall "e dee#ed su"#itted for decision upon the filin$ of the last pleadin$ or #e#orandu# re-uired "y these Rules or "y the court itself+

Re$ ! do Notes ,ifferentiate Rule 31 appeal and Rule 3& appeal of decisions of the R C to the CA. Rule 31 refers to appeals fro# the R C e9ercisin$ original !urisdiction. Rule 3& refers to appeals of decisions of the R C in the e9ercise of its appellate !urisdiction.

159 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA 7owever% an appeal in ha"eas corpus cases shall "e ta@en within forty2ei$ht (38+ hours fro# notice of !ud$#ent or final order appealed fro#. he period of appeal shall "e interrupted "y a ti#ely #otion for new trial or reconsideration. No #otion for e9tension of ti#e to file a #otion for new trial or reconsideration shall "e allowed. (Sec. 0% Rule 31+

0. Cro# R C to CA D Rule 31 RB51 31 APP1A5 CR=4 71 R1'*=NA5 R*A5 C=BR S Su"!ect of appeal.
An appeal #ay "e ta@en fro# a !ud$#ent or final order t+ t co'p!ete!y disposes o& t+e c se, or o& p rticu! r ' tter t+erein when declared "y these Rules to "e appeala"le. (Sec. 1% Rule 31+

Appellate court doc@et and other lawful fees.

6hat order or !ud$#ents #ay not "e appealed>
No ppe ! #ay "e ta@en fro#< (a+ An order denyin$ a #otion for new trial or reconsiderationK ("+ An order denyin$ a petition for relief or any si#ilar #otion see@in$ relief fro# !ud$#entK (c+ An interlocutory orderK (d+ An order disallowin$ or dis#issin$ an appealK (e+ An order denyin$ a #otion to set aside a !ud$#ent "y consent% confession or co#pro#ise on the $round of fraud% #ista@e or duress% or any other $round vitiatin$ consentK (f+ An order of e9ecutionK ($+ A !ud$#ent or final order for or a$ainst one or #ore of several parties or in separate clai#s% counterclai#s% cross2 clai#s and third2party co#plaints% while the #ain case is pendin$% unless the court allows an appeal therefro#K and (h+ An order dis#issin$ an action without pre!udice. *n all the a"ove instances where the !ud$#ent or final order is not appeala"le% t+e $$rie#ed p rty ' y &i!e n ppropri te speci ! ci#i! ction under Ru!e 54 . (Sec. 1% Rule 31+

6ithin the period for ta@in$ an appeal% the appellant shall p y to t+e c!er( o& t+e court "+ic+ rendered t+e *ud$'ent or &in ! order ppe !ed &ro' % the full a#ount of the appellate court doc@et and other lawful fees. Proof of pay#ent of said fees shall "e trans#itted to the appellate court to$ether with the ori$inal record or the record on appeal. (Sec. 3% Rule 31+

Notice of appeal.

he notice of appeal shall 1. indicate the parties to the appeal% &. specify the !ud$#ent or final order or part thereof appealed fro#% 0. specify the court to which the appeal is "ein$ ta@en% and 3. state the #aterial dates showin$ the ti#eliness of the appeal. (Sec. ;% Rule 31+

Record on appealK for# and contents thereof.
1. he full na#es of all the parties to the proceedin$s shall "e stated in the caption of the record on appeal and &. it shall include the !ud$#ent or final order fro# which the appeal is ta@en and% 0. in chronolo$ical order% copies of only such pleadin$s% petitions% #otions and all interlocutory orders as are related to the appealed !ud$#ent or final order for the proper understandin$ of the issue involved% 3. to$ether with such data as will show that the appeal was perfected on ti#e. ;. *f an issue of fact is to "e raised on appeal% the record on appeal shall include "y reference all the evidence% testi#onial and docu#entary% ta@en upon the issue involved. he reference shall specify the docu#entary evidence "y the e9hi"it nu#"ers or letters "y which it was identified when ad#itted or offered at the hearin$% and the testi#onial evidence "y the na#es of the correspondin$ witnesses. *f the whole testi#onial and docu#entary evidence in the case is to "e included% a state#ent to that effect will "e sufficient without #entionin$ the na#es of the witnesses or the nu#"ers or letters of e9hi"its. .. 1very record on appeal e9ceedin$ twenty (&/+ pa$es #ust contain a su"!ect inde9. (Sec. .% Rule 31+

6hat are the #odes of appeal. (a+ Ordinar" appeal.

he appeal to the Court of Appeals in c ses decided %y t+e Re$ion ! Tri ! Court in t+e e)ercise o& its ori$in ! *urisdiction shall "e ta@en "y filin$ a notice o& ppe ! with the court which rendered the !ud$#ent or final order appealed fro# and servin$ a copy thereof upon the adverse party. No record on appeal shall "e re-uired e9cept in special proceedin$s and other cases of #ultiple or separate appeals where the law or these Rules so re-uire. *n such cases% the record on appeal shall "e filed and served in li@e #anner. (Sec. &% Rule 31+

("+ Petition !or revie%
he appeal to the Court of Appeals in c ses decided %y t+e Re$ion ! Tri ! Court in t+e e)ercise o& its ppe!! te *urisdiction shall "e "y petition for review in accordance with Rule 3&. (Sec. &% Rule 31+

(c+ Appeal b" certiorari.
*n all c ses "+ere on!y -uestions o& ! " re r ised or in#o!#ed% the appeal shall "e to the Supre#e Court "y petition for review on certiorari in accordance with Rule 3;. (Sec. &% Rule 31+

Approval of record on appeal.

Period of ordinary appeal.
he appeal shall "e ta@en "it+in &i&teen ./40 d ys fro# notice of the !ud$#ent or final order appealed fro#. 6here a record on appeal is re-uired% the appellant shall file a notice of appeal and a record on appeal within t+irty .260 d ys fro# notice of the !ud$#ent or final order.

Bpon the filin$ of the record on appeal for approval and if no o"!ection is filed "y the appellee within five (;+ days fro# receipt of a copy thereof% the trial court #ay a. approve it as presented or ". upon its own #otion or at the instance of the appellee% #ay direct its a#end#ent "y the inclusion of any o#itted #atters which are dee#ed essential to the deter#ination of the issue of law or fact involved in the appeal. *f the trial court orders the a#end#ent of the record% the appellant% within the ti#e li#ited in the order% or such e9tension thereof as #ay "e $ranted% or if no ti#e is fi9ed "y the order within ten (1/+ days fro# receipt thereof% shall redraft the record "y includin$ therein% in

1 0 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 their proper chronolo$ical se-uence% such additional #atters as the court #ay have directed hi# to incorporate% and shall thereupon su"#it the redrafted record for approval% upon notice to the appellee% in li@e #anner as the ori$inal draft. (Sec. 7% Rule 31+

JONATHAN PAMPOLINA to the record of the case five (;+ copies of the transcripts of the testi#onial evidence referred to in the record on appeal. he steno$raphers concerned shall transcri"e such testi#onial evidence and shall prepare and affi9 to their transcripts an inde9 containin$ the na#es of the witnesses and the pa$es wherein their testi#onies are found% and a list of the e9hi"its and the pa$es wherein each of the# appears to have "een offered and ad#itted or re!ected "y the trial court. he transcripts shall "e trans#itted to the cler@ of the trial court who shall thereupon arran$e the sa#e in the order in which the witnesses testified at the trial% and shall cause the pa$es to "e nu#"ered consecutively. (Sec. 11% Rule 31+

Joint record on appeal.

6here %ot+ p rties re ppe!! nts % they #ay file a !oint record on appeal within the ti#e fi9ed "y section 0 of this Rule% or that fi9ed "y the court. (Sec. 8% Rule 31+

Perfection of appealK effect thereof. 2otice o! Appeal

A partyTs appeal "y notice o& ppe ! is dee#ed perfected as to hi# upon the filin$ of the notice of appeal in due ti#e. *n appeals "y notice o& ppe !% the court loses !urisdiction over the case upon the perfection of the appeals filed in due ti#e and the e9piration of the ti#e to appeal of the other parties. (Sec. 9% Rule 31+

1ecord on Appeal

A partyTs appeal "y record on ppe ! is dee#ed perfected as to hi# with respect to the su"!ect #atter thereof upon the approval of the record on appeal filed in due ti#e. *n appeals "y record on ppe !% the court loses !urisdiction only over the su"!ect #atter thereof upon the approval of the records on appeal filed in due ti#e and the e9piration of the ti#e to appeal of the other parties. (Sec. 9% Rule 31+

2otice o! Appeal and 1ecord o! Appeal

*n either case% prior to the trans#ittal of the ori$inal record or the record on appeal% the court #ay issue orders for the protection and preservation of the ri$hts of the parties which do not involve any #atter liti$ated "y the appeal% approve co#pro#ises% per#it appeals of indi$ent liti$ants% order e9ecution pendin$ appeal in accordance with section & of Rule 09% and allow withdrawal of the appeal. ZResidu ! Jurisdiction o& t+e Tri ! Court[ (Sec. 9% Rule 31+

he cler@ of the trial court shall trans#it to the appellate court 1. the ori$inal record or the approved record on appeal within thirty (0/+ days fro# the perfection of the appeal% &. to$ether with the proof of pay#ent of the appellate court doc@et and other lawful fees% 0. a certified true copy of the #inutes of the proceedin$s% 3. the order of approval% ;. the certificate of correctness% .. the ori$inal docu#entary evidence referred to therein% and 7. the ori$inal and three (0+ copies of the transcripts. Copies of the transcripts and certified true copies of the docu#entary evidence shall re#ain in the lower court for the e9a#ination of the parties. (Sec. 1&% Rule 31+

rans#ittal.

,is#issal of appeal.
Prior to the trans#ittal of the ori$inal record or the record on appeal to the appellate court% t+e tri ! court ' y, 'otu proprio or on 'otion, dis'iss t+e ppe ! &or a. + #in$ %een t (en out o& ti'e or ". nonAp y'ent o& t+e doc(et nd ot+er ! "&u! &ees "it+in t+e re$!e'ent ry period. (Sec. 10% Rule 31+

,uty of cler@ of court of the lower court upon perfection of appeal.

6ithin thirty (0/+ days after perfection of all the appeals in accordance with the precedin$ section% it shall "e the duty of the cler@ of court of the lower court< (a+ o verify the correctness of the ori$inal record or the record on appeal% as the case #ay "e% and to #a@e a certification of its correctnessK ("+ o verify the co#pleteness of the records that will "e trans#itted to the appellate courtK (c+ *f found to "e inco#plete% to ta@e such #easures as #ay "e re-uired to co#plete the records% availin$ of the authority that he or the court #ay e9ercise for this purposeK and (d+ o trans#it the records to the appellate court. *f the efforts to co#plete the records fail% he shall indicate in his letter of trans#ittal the e9hi"its or transcripts not included in the records "ein$ trans#itted to the appellate court% the reasons for their non2trans#ittal% and the steps ta@en or that could "e ta@en to have the# availa"le. (e+ he cler@ of court shall furnish the parties with copies of his letter of trans#ittal of the records to the appellate court. (Sec. 1/% Rule 31+

SUPRECE COURT CIRCULAR NO. 3IA66 =< he Court =f Appeals% Sandi$an"ayan% Court =f a9 Appeals% Re$ional rial Courts% ShariTa ,istrict Courts% 4etropolitan rial Courts% 4unicipal rial Courts *n Cities% 4unicipal rial Courts% 4unicipal Circuit rial Courts And ShariTa Circuit Courts SB:J1C < A.4. No. //2&21/2SC. Re< A#end#ents o Section 3% Rule 7 And Section 10% Rule 31 =f he 1997 Rules =f Civil Procedure
Cor the infor#ation and $uidance of all concerned% -uoted hereunder are the a#ended provisions in the 1997 Rules of Civil Procedure< (a+ Section 3 of Rule 7< and ("+ Section 10 of Rule 31% to wit< 1:LE 3& Sec' E' =eri!ication' 19cept when otherwise specifically re-uired "y law or rule% pleadin$s need not "e under oath% verified or acco#panied "y affidavit. A pleadin$ is verified "y an affidavit that the affiant has read the pleadin$ and that the alle$ations therein are true and correct of his personal @nowled$e or "ased on authentic records. A pleadin$ re-uired to "e verified which contains a verification "ased on Iinfor#ation and "elief% or upon

ranscript.
Bpon the perfection of the appeal% the cler@ shall i##ediately direct the steno$raphers concerned to attach

1 1 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 I@nowled$e% infor#ation and "elief%I or lac@s a proper verification% shall "e treated as an unsi$ned pleadin$. (3a+ 1:LE E+& Sec' +0' )ismissal o! appeal' Prior to the trans#ittal of the ori$inal record or the record on appeal to the appellate court% t+e tri ! court ' y, 'otu proprio or on 'otion, dis'iss t+e ppe ! &or + #in$ %een t (en out o& ti'e or nonAp y'ent o& t+e doc(et nd ot+er ! "&u! &ees "it+in t+e re$!e'ent ry period. he fore$oin$ a#end#ents too@ effect last 4ay 1% &///.

JONATHAN PAMPOLINA

*f no o"!ection is #ade a$ainst an appeal of an interlocutory order% should the appellate court continue with hearin$ the appeal> No. 6here the order appealed fro# is interlocutory% the appellate court can dis#iss the appeal even if N= =:J1C *=N thereto was filed "y the appellee in either the trial or appellate court. 6hat is the funda#ental difference "etween an appeal and an action to review> *n the case of appeal% the court "y which the first deter#ination was #ade is not a party to the proceedin$ for review. 6hile in an action to review% the court which #ade the deter#ination is a party to the proceedin$ for review. Can the period to appeal "e e9tended> Ges. he period to appeal #ay "e e9tended "ut such e9tension is addressed to the sound discretion of the court. 6hen should a #otion to e9tend the period for filin$ the record on appeal "e filed> he #otion to e9tend the period #ust "e filed within the 0/2day period for perfectin$ an appeal. *t should "e heard and resolved pro#ptly% or "efore the lapse of said period% so as to apprise the appellant 6=N his o"li$ation to file the record on appeal within the said period is dispensed with. ,oes the #ere filin$ and pendency of a #otion for e9tension of ti#e to perfect an appeal suspend the runnin$ of the re$le#entary period> No. 6hat is the effect if the trial court approves the record on appeal even if the period for the appeal has e9pired> he approval of the trial court of the appeal is tanta#ount to a valid order $rantin$ the e9tension prayed for "y the appellant if any such #otion has "een filed. (:er@en@otter v. CA+ Conversely% the dis#issal of the appeal "y the C constitutes a denial of the e9tension prayed for% in which case the only -uestion that can arise is 6=N the C had $ravely a"used its discretion in denyin$ such e9tension. (P) A v. ,elos An$eles% 52 &970.% 01 =cto"er 1973+. 6hich court will deter#ine 6=N the appeal is pro for#a> '1N1RA5 RB51< he appellate court deter#ines 6=N the appeal is pro for#a% frivolous% or dilatory and thereafter dis#iss the appeal% as the C has the #inisterial duty to elevate the records if the appeal is duly perfected. 1OC1P *=N< *f the C dis#issed the appeal "ecause it was clearly de#onstrated to "e dilatory and frivolous% such order will not "e distur"ed "y the appellate court. (,e la Cru8 v. :lanco% 70 Phil. ;9.+.

=)1R)*16 =C APP1A5 CR=4 R C = CA
R C ,ecision (=ri$inal Jurisdiction+ ↓ Notice of ,ecision of R C ↓ Perfection of Appeal (1; days fro# Notice for Notice of Appeal+ (0/ days fro# Notice for Record on Appeal+ S he period for perfectin$ an appeal is interrupted "y a ti#ely 4R or 4N . ↓ R C approves the appeal. (; days fro# receipt of notice or record on appeal+ SR C can a#end its own decision "y the inclusion of any o#itted #atters and thereafter appellant shall redraft the record and su"#it the sa#e for approval. (Sec. 7% Rule 31+ ↓ R C Cler@ of Court trans#its the records to CA. (6ithin 0/ days fro# perfection of appeal+ SPrior to the trans#ittal of the records to the appellate court% the C #ay #otu propio or on #otion ,*S4*SS the appeal for havin$ "een ta@en out of ti#e or for non2 pay#ent of doc@et fees. (Sec. 10% Rule 31+

Re$ ! do Notes 6hen is an order considered interlocutory> An order is considered interlocutory if it does not dispose of the case "ut leaves so#ethin$ else to "e done "y the trial court on the #erits of the case. An order is final% for purposes of appeal% if it disposes of the entire case. 6hat are the re#edies a$ainst interlocutory orders> '1N1RA5 RB51< 6here the order is interlocutory% the #ovant has to wait for the !ud$#ent and then appeal fro# the !ud$#ent% in the course of which appeal he can assi$n as error the said interlocutory order. he interlocutory order cannot "e appealed fro# separately fro# the !ud$#ent. (4apua v. Su"ur"an heaters% *nc.% 81 Phil 011+ 1OC1P *=N< 6here the interlocutory order was rendered without or in e9cess of !urisdiction or with $rave a"use of discretion% the re#edy is certiorari% prohi"ition or #anda#us dependin$ on the facts of the case.

1 2 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

*s the re-uire#ent% that the record on appeal #ust show on its face that the appeal was perfected on ti#e #andatory and !urisdictional> Ges. *f the re-uire#ent of #aterial dates is not co#plied with% the appellate court ac-uires no !urisdiction and the appeal #ust "e dis#issed. 6ill the failure of counsel to si$n the record on appeal "e a $round for dis#issal of the appeal> No. he court can #erely re-uire the counsel to si$n the record on appeal. *s there an e9ception to the #aterial date rule under Sec. .% Rule 31> Ges. he #aterial date rule need not "e o"served if the C issued an order to the effect that the appeal was seasona"ly perfected with the filin$ of the notice of appeal% and the record on appeal within the re$le#entary period. (Pi#entel v. CA% 52 09.83% &7 June 197;+ he #aterial date rule has "een li"erali8ed in the sense that reliance can "e placed on the CAs order of approval and its deter#ination of the ti#eliness of the appeal% especially when the ti#eliness of perfection of such appeal has not "een i#pu$ned "y the appellee who filed no opposition to the approval "y the C of the record on appeal. (Saura *#port W 19port% *nc. v. CA% 520377/% 18 4ay 1978+ ,oes a record of appeal have to "e set for hearin$ in the C "y the appellant> No. A record of appeal is dee#ed su"#itted for approval upon its filin$ and the rule #erely re-uires the adverse party to file any o"!ection thereto within five (;+ days. 6hen does the C lose !urisdiction over an appeal> After the perfection of the appeal "y notice of appeal or record of appeal% the C loses !urisdiction over the case or the su"!ect #atter involved in the appeal% as the case #ay "e. 6hat is the residual !urisdiction of the trial court> :efore the trans#ittal to the appellate court of the ori$inal record or the record on appeal% the C retains its so2called residual !urisdiction to issue protective orders% approve co#pro#ises% per#it appeals of indi$ent liti$ants and% as has "een added "y a#end#ent% to order discretionary e9ecution and to allow withdrawal of the appeal. 6hat is the effect on the CAs !urisdiction of an appeal that is perfected "ut the records have not yet "een trans#itted to the appellate court> 1ven if the appeal has already "een perfected "ut the records have not yet "een trans#itted to the appellate court% the C still has !urisdiction to set aside its order approvin$ the record on appeal. (Ca"un$cal v. Cernande8% 521.;&/% &/ April 19.3+

6ho has the responsi"ility of trans#itted the records to the appellate court> he trans#ittal of the record should "e the sole responsi"ility of the cler@ of court. Curther#ore% it is the duty of the cler@ of court to furnish the parties with copies of his letter of trans#ittal of the records to the appellate court% to ena"le the parties to #onitor or verify the cler@As co#pliance with his duty to do so. 6here should a #otion to dis#iss an appeal "e filed> A #otion to dis#iss an appeal should "e filed with the trial court% prior to the trans#ittal of the ori$inal record or the record on appeal to the appellate court. *f the appellee fails to #ove for the dis#issal of the appeal% will the appellee "e forever "arred fro# challen$in$ the appeal> No. he failure of the appellee to #ove for the dis#issal in the C of an appeal perfected out of ti#e does N= prevent hi# fro# filin$ such a #otion in the appellate court as it involves the appellate !urisdiction of the latter court. ('ar$anta v. CA% 1/; Phil. 31&+ 6hat is the re#edy of an appellant who fails to perfect his appeal on ti#e due to fraud% accident% #ista@e and e9cusa"le ne$li$ence> he appellant #ay file for a petition for relief under Rule 08% Sec. &. *f his petition for relief is denied% he can file a petition under Rule .;% since the denial of a petition for relief is no lon$er appeala"le under Sec. 1 of Rule 31. (,e 5una v. Palacio% 52&.9&7% &7 ,ece#"er 19.9+. Au$usto v. Rises An order to surrender title in order to "e annotated is an interlocutory order which cannot "e appealed. :atara v. CA he filin$ of a 4R interrupts the period to file an appeal. :ut if the 4R is denied% the period to file an appeal is not renewed and the appeal should "e filed within the "alance of the re$le#entary period. Allied :an@in$ v. 1ser!ose An appeal is #erely a statutory ri$ht and strict adherence to the re-uire#ents for its e9ercise is called for. Notice of appeal that is filed three (0+ days after the re$le#entary period cannot "e ta@en co$ni8ance of. he perfection of an appeal is a !urisdictional re-uire#ent.

1 3 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

Santander v. )illanueva Pay#ent of doc@et fees for appeal was filed only at 4R. Appeal should "e denied for pay#ent of fees su"se-uently did not cure the defect of the appeal. Pay#ent of appellate doc@et fees is a !urisdictional re-uire#ent. 1strella v. 1spiridion Appellant did not specify to which court the appeal was "ein$ "rou$ht to. SC ruled that CA was too strict in applyin$ the rules "ut ruled that after ; Septe#"er 1998% stricter reliance on details. :arnes v. Padilla 4otion for e9tension to file 4R was $ranted. CA denied the #otion "ecause period was not e9tendi"le. SC said CA should not "e too strict and should have heard the case.

1 4 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA he ori$inal copy of the petition intended for the Court of Appeals shall "e indicated as such "y the petitioner. Bpon the filin$ of the petition% the petitioner shall p y to t+e c!er( o& court o& t+e Court o& Appe !s t+e doc(etin$ nd ot+er ! "&u! &ees nd deposit t+e su' o& P466.66 &or costs. 19e#ption fro# pay#ent of doc@etin$ and other lawful fees and the deposit for costs #ay "e $ranted "y the Court of Appeals upon a verified #otion settin$ forth valid $rounds therefor. *f the Court of Appeals denies the #otion% the petitioner shall pay the doc@etin$ and other lawful fees and deposit for costs within fifteen (1;+ days fro# notice of the denial. (Sec. ;% Rule 30+

3. Cro# C A and ?JA to CA D Rule 30 RB51 30 APP1A5S CR=4 71 C=BR =C AO APP1A5S AN, ?BAS*2JB,*C*A5 A'1NC*1S = 71 C=BR =C APP1A5S Scope.
his Rule shall apply to appeals fro# !ud$#ents or final orders of the Court of a9 Appeals and fro# awards% !ud$#ents% final orders or resolutions of or authori8ed "y any -uasi2!udicial a$ency in the e9ercise of its -uasi2!udicial functions. (Refer to 5ist created earlier listin$ the ?JAs alpha"etically+ A#on$ these a$encies are the Civil Service Co##ission% Central :oard of Assess#ent Appeals% Securities and 19chan$e Co##ission% =ffice of the President% 5and Re$istration Authority% Social Security Co##ission% Civil Aeronautics :oard% :ureau of Patents% rade#ar@s and echnolo$y ransfer% National 1lectrification Ad#inistration% 1ner$y Re$ulatory :oard% National eleco##unications Co##ission% ,epart#ent of A$rarian Refor# under Repu"lic Act No. ..;7% 'overn#ent Service *nsurance Syste#% 1#ployees Co#pensation Co##ission% A$ricultural *nventions :oard% *nsurance Co##ission% Philippine Ato#ic 1ner$y Co##ission% :oard of *nvest#ents% Construction *ndustry Ar"itration Co##ission% and voluntary ar"itrators authori8ed "y law. (Sec. 1% Rule 30+

Contents of the petition.
he petition for review shall (a+ state the full na#es of the parties to the case% without i#pleadin$ the court or a$encies either as petitioners or respondentsK ("+ contain a concise state#ent of the facts and issues involved and the $rounds relied upon for the reviewK (c+ "e acco#panied "y a clearly le$i"le duplicate ori$inal or a certified true copy of the award% !ud$#ent% final order or resolution appealed fro#% to$ether with certified true copies of such #aterial portions of the record referred to therein and other supportin$ papersK and (d+ contain a sworn certification a$ainst foru# shoppin$ as provided in the last para$raph of section &% Rule 3&. (e+ he petition shall state the specific #aterial dates showin$ that it was filed within the period fi9ed herein. (Sec. .% Rule 30+

Cases not covered.

his Rule shall not apply to !ud$#ents or final orders issued under the L %or Code o& t+e P+i!ippines. (Sec. &% Rule 30+

1ffect of failure to co#ply with re-uire#ents.
he failure of the petitioner to co#ply with any of the fore$oin$ re-uire#ents re$ardin$ the pay#ent of the doc@et and other lawful fees% the deposit for costs% proof of service of the petition% and the contents of and the docu#ents which should acco#pany the petition s+ !! %e su&&icient $round &or t+e dis'iss ! t+ereo& . (Sec. 7% Rule 30+

6here to appeal.
An appeal under this Rule #ay "e ta@en to the Court o& Appe !s within the period and in the #anner herein provided% whether the appeal involves -uestions o& & ct, o& ! ", or 'i)ed -uestions o& & ct nd ! ". (Sec. 0% Rule 30+

Period of appeal.

Action on the petition.

he appeal shall "e ta@en within fifteen (1;+ days a. fro# notice of the award% !ud$#ent% final order or resolution% or ". fro# the date of its last pu"lication% if pu"lication is re-uired "y law for its effectivity% or c. of the denial of petitionerTs #otion for new trial or reconsideration duly filed in accordance with the $overnin$ law of the court or a$ency a -uo. =nly one (1+ #otion for reconsideration shall "e allowed. Bpon proper #otion and the pay#ent of the full a#ount of the doc@et fee "efore the e9piration of the re$le#entary period% the Court of Appeals #ay $rant an ddition ! period o& &i&teen ./40 d ys only within which to file the petition for review. No further e9tension shall "e $ranted e9cept for the #ost co#pellin$ reason and in no case to e9ceed fifteen (1;+ days. (Sec. 3% Rule 30+

he Court of Appeals #ay re-uire the respondent to file a co##ent on the petition% not a #otion to dis#iss% within ten (1/+ days fro# notice% or dis#iss the petition if it finds the sa#e to "e patently without #erit% prosecuted #anifestly for delay% or that the -uestions raised therein are too unsu"stantial to re-uire consideration. (Sec. 8% Rule 30+

Contents of co##ent.
he co##ent shall "e filed within ten (1/+ days fro# notice in seven (7+ le$i"le copies and acco#panied "y clearly le$i"le certified true copies of such #aterial portions of the record referred to therein to$ether with other supportin$ papers. he co##ent shall (a+ point out insufficiencies or inaccuracies in petitionerTs state#ent of facts and issuesK and ("+ state the reasons why the petition should "e denied or dis#issed. (c+ A copy thereof shall "e served on the petitioner% and proof of such service shall "e filed with the Court of Appeals. (Sec. 9% Rule 30+

7ow appeal ta@en.
Appeal shall "e ta@en "y filin$ a verified petition for review in seven (7+ le$i"le copies with the Court of Appeals% with proof of service of a copy thereof on the adverse party and on the court or a$ency a -uo.

,ue course.

1 5 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 *f upon the filin$ of the co##ent or such other pleadin$s or docu#ents as #ay "e re-uired or allowed "y the Court of Appeals or upon the e9piration of the period for the filin$ thereof% and on the "asis of the petition or the records the Court of Appeals finds pri#a facie that the court or a$ency concerned has co##itted errors of fact or law that would warrant reversal or #odification of the award% !ud$#ent% final order or resolution sou$ht to "e reviewed% it #ay $ive due course to the petitionK otherwise% it shall dis#iss the sa#e. he &indin$s o& & ct o& t+e court or $ency concerned, "+en supported %y su%st nti ! e#idence % shall "e "indin$ on the Court of Appeals. (Sec. 1/% Rule 30+

JONATHAN PAMPOLINA CA #ay re-uire court or a$ency to trans#it the records. (within 1; days fro# notice of CAAs order $ivin$ due course on the petition% records #ust "e trans#itted+ ↓ *f the appeal is $iven due course% CA #ay also set the case for oral ar$u#ent or re-uire parties to su"#it #e#oranda. ↓ Parties set for oral ar$u#ents or su"#it #e#oranda. (=ral ar$u#ents and #e#orandu# #ust "e set or su"#itted within 1; days fro# notice of order.+ ↓ Appeal is su"#itted for decision to CA.

6ithin fifteen (1;+ days fro# notice that the petition has "een $iven due course% the Court of Appeals #ay re-uire the court or a$ency concerned to trans#it the ori$inal or a le$i"le certified true copy of the entire record of the proceedin$ under review. he record to "e trans#itted #ay "e a"rid$ed "y a$ree#ent of all parties to the proceedin$. he Court of Appeals #ay re-uire or per#it su"se-uent correction of or addition to the record. (Sec. 11% Rule 30+

rans#ittal of record.

Re$ ! do Notes 6ill the prosecutorAs -uasi2!udicial function of conductin$ a preli#inary investi$ation su"!ect to appeal under Rule 30> No. A prosecutor conductin$ a preli#inary investi$ation perfor#s a -uasi2!udicial function% "ut his office is not a -uasi2!udicial "ody and does not e9ercise ad!udicatory or rule2#a@in$ functions. he prosecutorAs action of approvin$ the filin$ of an infor#ation is not appeala"le to the CA under Rule 30. (:autista v. CA% 'R 13007;% . July &//1+. 6hat is the effect of an appeal that fails to co#ply with the re-uire#ents under Rule 30 or where the #erits of the petition do not warrant consideration> Sections 7 and 8 authori8e the outri$ht dis#issal of the petition. 9 utist Notes
6ithin 1; days fro# notice of award% !ud$#ent% final order or resolution% or 6ithin 1; days fro# the date of its last pu"lication% if pu"lication is re-uired "y law for its effectivity% or 6ithin 1; days fro# the denial of petitionerAs 4N or 4R duly filed in accordance with the $overnin$ law of the court or a$ency a -uo. 1. Cile a verified petition for review with the CA in 7 le$i"le copies% with proof of service of a copy thereof on the adverse party and on the court or a$ency a -uo. &. Pay to the cler@ of court the correspondin$ doc@et and other lawful fees. 0. ,eposit the a#ount of P;// for costs. N= 1< 19e#ption fro# pay#ent of doc@etin$ and other lawful fees and the deposit for costs #ay "e $ranted "y the CA upon a verified #otion settin$ forth valid $rounds therefore. 1. Cull na#es of the parties to the case% without i#pleadin$ the courts of a$encies either as petitioners or respondents. &. Concise state#ent of the facts and issues and the $rounds relied upon for the review 0. Clearly le$i"le duplicate ori$inal or certified true copy of the award% !ud$#ent

1ffect of appeal.

he appeal s+ !! not st y t+e " rd, *ud$'ent, &in ! order or reso!ution sou$+t to %e re#ie"ed unless the Court of Appeals shall direct otherwise upon such ter#s as it #ay dee# !ust. (Sec. 1&% Rule 30+

Su"#ission for decision.
*f the petition is $iven due course% the Court of Appeals #ay set the case for or ! r$u'ent or re-uire the parties to su%'it 'e'or nd within a period of fifteen (1;+ days fro# notice. he case shall "e dee#ed su"#itted for decision upon the filin$ of the last pleadin$ or #e#orandu# re-uired "y these Rules or "y the Court of Appeals. (Sec. 10% Rule 30+

Appeals fro# C A and ?JA to the CA
6hen ta@en>

=)1R)*16 =C APP1A5 CR=4 C A and ?JA to CA
C A or ?JA ,ecision ↓ Appellant files appeal to CA (6ithin 1; days fro# notice of award% !ud$#ent% final order or resolution% or fro# date of last pu"lication or denial of 4N or 4R+ (1st 1O 1NS*=N< additional 1; day period to file petition "ut with pay#ent of doc@et fees+ (&nd 1O 1NS*=N< Additional 1; day period to file petition "ut only for e9ceptional cases+ ↓ CA #ay re-uire Respondent to file a co##ent. (CA #ay also dis#iss the petition outri$ht if the petitioner fails to co#ply with the re-uire#ents% is filed out of ti#e% is patently without #erit% prosecuted for delay% or the -uestions raised are to unsu"stantial+ ↓ Respondent files a co##ent. (Co##ent should "e filed within 1/ days fro# notice+ ↓ CA $ives due course to the petition or dis#isses the petition. ↓ 1

7ow ta@en

appeal

Contents Petition

of

of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 or final order or resolution appealed fro#% to$ether with certified true copies of such #aterial portions of the record referred to therein and other supportin$ papers 3. Sworn certification a$ainst foru#2 shoppin$ ;. Specific #aterial dates showin$ that the petition was filed within the period fi9ed in the Rules 1. Non2pay#ent of doc@et and other lawful fees. &. Non2deposit for costs. 0. Non2co#pliance with proof of service of the petition 3. Cailure to co#ply with the re-uisite contents and docu#ents that should acco#pany the petition. ;. Petition is patently without #erit .. Petition is prosecuted #anifestly for delay. 7. he -uestions raised in the petition are too unsu"stantial to re-uire consideration. 8. A"sence of pri#a facie showin$ that the court or a$ency concerned has co##itted errors of fact or law that would warrant reversal or #odification of the award% !ud$#ent% final order or resolution sou$ht to "e reviewed. he appeal does not stay the award% !ud$#ent% final order or resolution 1OC1P *=N< *f the CA directs otherwise% upon such ter#s as it #ay dee# !ust. (Sec. 1&+

JONATHAN PAMPOLINA

'rounds for ,is#issal of the Petition.

1ffect Appeal

of

1 ! of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA doc@et and other lawful fees% deposit for costs% proof of service of the petition% and the contents of and the docu#ents which should acco#pany the petition s+ !! %e su&&icient $round &or t+e dis'iss ! t+ereo& . (Sec. ;% Rule 3;+ he Supre#e Court ' y on its o"n initi ti#e deny the petition on the $round that 1. the appeal is without #erit% or &. is prosecuted #anifestly for delay% or 0. that the -uestions raised therein are too unsu"stantial to re-uire consideration. (Sec. ;% Rule 3;+

;. o SC D Rule 3;K Rule .; RB51 3; APP1A5 :G C1R *=RAR* = 71 SBPR141 C=BR Cilin$ of petition with Supre#e Court.
A party desirin$ to appeal "y certiorari fro# a *ud$'ent or &in ! order or reso!ution o& t+e Court o& Appe !s, t+e S ndi$ n% y n, t+e Re$ion ! Tri ! Court or ot+er courts "+ene#er ut+oriKed %y ! " % #ay file with the Supre#e Court a verified petition for review on certiorari. he petition shall raise on!y -uestions o& ! " which #ust "e distinctly set forth. (Sec. 1% Rule 3;+

Review discretionary.
A review is not a #atter of ri$ht% "ut of sound *udici ! discretion% and will "e $ranted only when there are special and i#portant reasons therefor. he followin$% while neither controllin$ nor fully #easurin$ the courtTs discretion% indicate the character of the reasons which will "e considered< (a+ 6hen the court a -uo has decided a -uestion of su"stance% not theretofore deter#ined "y the Supre#e Court% or has decided it in a way pro"a"ly not in accord with law or with the applica"le decisions of the Supre#e CourtK or ("+ 6hen the court a -uo has so far departed fro# the accepted and usual course of !udicial proceedin$s% or so far sanctioned such departure "y a lower court% as to call for an e9ercise of the power of supervision. (Sec. .% Rule 3;+

i#e for filin$K e9tension.
he petition shall "e filed "it+in &i&teen ./40 d ys &ro' notice of the !ud$#ent or final order or resolution appealed fro#% or of the denial of the petitionerTs #otion for new trial or reconsideration filed in due ti#e after notice of the !ud$#ent. =n #otion duly filed and served% with full pay#ent of the doc@et and other lawful fees and the deposit for costs "efore the e9piration of the re$le#entary period% the Supre#e Court #ay for !ustifia"le reasons $rant an e)tension o& t+irty .260 d ys on!y within which to file the petition. (Sec. &% Rule 3;+

,oc@et and other lawful feesK proof of service of petition.
Bnless he has theretofore done so% the petitioner shall pay the correspondin$ doc@et and other lawful fees to the cler@ of court of the Supre#e Court and deposit the a#ount of P;//.// for costs at the ti#e of the filin$ of the petition. Proo& o& ser#ice o& copy thereof on the lower court concerned and on the adverse party shall "e su"#itted to$ether with the petition. (Sec. 0% Rule 3;+

Pleadin$s and docu#ents that #ay "e re-uiredK sanctions.
Cor purposes of deter#inin$ whether the petition should "e dis#issed or denied pursuant to section ; of this Rule% or where the petition is $iven due course under section 8 hereof% the Supre#e Court #ay re-uire or allow the filin$ of such pleadin$s% "riefs% #e#oranda or docu#ents as it #ay dee# necessary within such periods and under such conditions as it #ay consider appropriate% and i#pose the correspondin$ sanctions in case of non2 filin$ or unauthori8ed filin$ of such pleadin$s and docu#ents or non2co#pliance with the conditions therefor. (Sec. 7% Rule 3;+

Contents of petition.
he petition shall "e filed in ei$hteen (18+ copies% with the ori$inal copy intended for the court "ein$ indicated as such "y the petitioner% and shall (a+ state the full na#e of the appealin$ party as the petitioner and the adverse party as respondent% without i#pleadin$ the lower courts or !ud$es thereof either as petitioners or respondentsK ("+ indicate the #aterial dates showin$ when notice of the !ud$#ent or final order or resolution su"!ect thereof was received% when a #otion for new trial or reconsideration% if any% was filed and when notice of the denial thereof was receivedK (c+ set forth concisely a state#ent of the #atters involved% and the reasons or ar$u#ents relied on for the allowance of the petitionK (d+ "e acco#panied "y a clearly le$i"le duplicate ori$inal% or a certified true copy of the !ud$#ent or final order or resolution certified "y the cler@ of court of the court a -uo and the re-uisite nu#"er of plain copies thereof% and such #aterial portions of the record as would support the petitionK and (e+ contain a sworn certification a$ainst foru# shoppin$ as provided in the last para$raph of section &% Rule 3&. (Sec. 3% Rule 3;+

,ue courseK elevation of records.

*f the petition is $iven due course% the Supre#e Court #ay re-uire the elevation of the co#plete record of the case or specified parts thereof within fifteen (1;+ days fro# notice. (Sec. 8% Rule 3;+

Rule applica"le to "oth civil and cri#inal cases.

he #ode of appeal prescri"ed in this Rule shall "e applica"le to "oth civil and cri#inal cases% e)cept in cri#inal cases where the penalty i#posed is death% reclusion perpetua or life i#prison#ent. (Sec. 9% Rule 3;+

,is#issal or denial of petition.
he failure of the petitioner to co#ply with any of the fore$oin$ re-uire#ents re$ardin$ the pay#ent of the

SC Ad#in. Circular 029. =< Court of Appeals% Sandi$an"ayan% Court of a9 Appeals% Re$ional rial Courts% 4etropolitan rial Court% 4unicipal rial Courts% 4unicipal Circuit rial Courts% ?uasi2Judicial A$encies% he =#"uds#an% he Solicitor 'eneral% he 'overn#ent Corporate Counsel% 4e#"ers of the 'overn#ent Prosecution Service% and 4e#"ers of the *nte$rated :ar of the Philippines

1 " of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA co#pliance shall not warrant any reconsideration unless the court is fully satisfied that the non2co#pliance was not in any way attri"uta"le to the party% despite due dili$ence on his part% and that there are hi$hly !ustifia"le and co#pellin$ reasons for the court to #a@e such other disposition as it #ay dee# !ust and e-uita"le. his Circular shall "e pu"lished in two newspapers of $eneral circulation and shall ta@e effect on June 1% 199..

SB:J1C < Clarification of the Provisions of Para$raph (0+% Revised Circular No. 1288 and Supple#ental Rules herefor
Para$raph (0+ of Revised Circular No. 1288 provides as follows< I(0+ Copies of !ud$#ent or resolution sou$ht to "e reviewed U Petitions filed with the Supre#e Court% whether under Rule 3;% Rule .;% R.A. No. ;33/ or P.,. No. 1./. shall "e acco#panied "y a clearly le$i"le duplicate ori$inal or certified true copy of the decision% !ud$#ent% resolution% or order su"!ect thereof% and the re-uisite nu#"er of plain copies thereof. he certification shall "e acco#plished "y the proper Cler@ of Court or "y his duly authori8ed representative or "y the proper officer of the court% tri"unal% "oard% co##ission% or office involved% or "y his duly authori8ed representative. Certification "y the parties the#selves% their counsel or any other person shall not "e allowed.I he failure to co#ply with or #isco#prehension of the aforesaid re-uire#ent in petitions to the Supre#e Court% or in petitions or other initiatory pleadin$s filed in other courts or -uasi2!udicial a$encies which have adopted the sa#e or si#ilar provisions% has created unnecessary controversies and resulted in undue delay in the proceedin$s therein. Cor the $uidance of all concerned% the followin$ clarifications and supple#ental rules in co#plyin$ with the re-uire#ent in Para$raph (0+ of Revised Circular No. 1288 are here"y announced for strict co#pliance< 1. he Iduplicate ori$inal copyI shall "e understood to "e that copy of the decision% !ud$#ent% resolution or order which is intended for and furnished to a party in the case or proceedin$ in the court or ad!udicative "ody which rendered and issued the sa#e. he Icertified true copyI thereof shall "e such other copy furnished to a party at his instance or in his "ehalf% duly authenticated "y the authori8ed officers or representatives of the issuin$ entity as herein"efore specified. &. he duplicate ori$inal copy #ust "e duly si$ned or initialed "y the authorities or the correspondin$ officer or representative of the issuin$ entity% or shall at least "ear the dry seal thereof or any other official indication of the authenticity and co#pleteness of such copy. Cor this purpose% all courts% offices or a$encies furnishin$ such copies which #ay "e used in accordance with Para$raph (0+ of Revised Circular No. 1288 shall #a@e arran$e#ents for and desi$nate the personnel who shall "e char$ed with the i#ple#entation of this re-uire#ent. 0. he certified true copy #ust further co#ply with all the re$ulations therefor of the issuin$ entity and it is the authenticated ori$inal of such certified true copy% and not a #ere 9ero9 copy thereof% which shall "e utili8ed as an anne9 to the petition or other initiatory pleadin$. 3. Re$ardless of whether a duplicate ori$inal copy or a certified true copy of the ad!udicatory docu#ent is anne9ed to the petition or initiatory pleadin$% the sa#e #ust "e an e9act and co#plete copy of the ori$inal% and all the pa$es thereof #ust "e clearly le$i"le and printed on white "ond or e-uivalent paper of $ood -uality with the sa#e di#ensions as the ori$inal copy. 1ither of the aforesaid copies shall "e anne9ed to the ori$inal copy of the petition or initiatory pleadin$ filed in court% while plain copies thereof #ay "e attached to the other copies of the pleadin$. ;. *t shall "e the duty and responsi"ility of the party usin$ the docu#ents re-uired "y Para$raph (0+ of Circular No. 12 88 to verify and ensure co#pliance with all the re-uire#ents therefor as detailed in the precedin$ para$raphs. Cailure to do so shall result in the re!ection of such anne9es and the dis#issal of the case. Su"se-uent

Re$ ! do Notes Can a Rule 3; appeal "e used to -uestion the decision of the R C rendered in e9ercise of its appellate !urisdiction> No. he appeal under Rule 3; conte#plates that the R C rendered the !ud$#ent or final order or resolution actin$ in its ori$inal !urisdiction. *f it rendered the sa#e in the e9ercise of its appellate !urisdiction% in the instances provided for in Rule 3& and 30% the appeal shall "e ta@en to the CA even if only -uestions of law are raised "y the petitioner. 6hat is a -uestion of law> 6hat is a -uestion of fact> 6hat is the test used for distin$uishin$ the two -uestions> A -uestion of law e9ists when there is a dou"t or controversy as to what the law is on a certain state of facts. here is a -uestion of fact when the dou"t or difference arises as to the truth or falsehood of facts. (Ra#os v. Pepsi% 52&&;00% 9 Ce"ruary 19.7+ =ne test is whether the appellate court can deter#ine the issue raised without reviewin$ or evaluatin$ the evidence% in which case it is a -uestion of law% otherwise it will "e a -uestion of fact. he -uestion #ust not involve the e9a#ination of the pro"ative value of the evidence presented. ()da. ,e Arroyo v. 1l :eaterio% 52&&//;% 0 4ay 19.8+ 6ho deter#ines whether an appeal involves only a -uestion of law or "oth -uestions of law and fact> 6hether an appeal involves only -uestions of law or "oth -uestions of law and fact is "est left to the deter#ination of an appellate court and not "ut the court which rendered the decision appealed fro#. (PN: v. Ro#illo% 'R. 7/.81% 1. =cto"er 198;+. 6hat is the rule on the conclusiveness of factual findin$s of the CA to the SC> '1N1RA5 RB51< he findin$s of fact of the CA are final and conclusive and cannot "e reviewed on appeal to the SC. 1OC1P *=N< Cindin$s of fact of the CA #ay "e reviewed "y the SC on appeal "y certiorari% when< a. 6hen the conclusion is a findin$ $rounded entirely on speculations% sur#ises or con!ectures ". 6hen the inference #ade is #anifestly #ista@en% a"surd or i#possi"le

1 9 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

c. 6here there is $rave a"use of discretion in the appreciation of facts. d. 6hen the !ud$#ent is "ased on a #isapprehension of facts e. 6hen the findin$s of fact of the CA are conflictin$ f. 6hen the CA% in #a@in$ its findin$s% went "eyond the issues of the case and the sa#e is contrary to the ad#issions of "oth appellant and appellee $. 6here the CA #anifestly overloo@ed certain relevant facts not disputed "y the parties and which% if properly considered% would !ustify a different conclusion. h. 6here the findin$s of fact of the CA are contrary to those of the C% or are #ere conclusions without citation of specific evidence% or where the facts set forth "y the petitioner are not disputed "y the respondent% or where the findin$s of fact of the CA are pre#ised on a"sence of evidence "ut are contradicted "y the evidence of record. ,ifferentiate certiorari under Rule 3; and certiorari under Rule .;.
Rule 3; Certiorari Petition is "ased on -uestions of law which the appellant desires the appellate court to resolve. *nvolves the review of the !ud$#ent% award or final order on the #erits. Rule .; Certiorari Petition raises the issue as to 6=N the lower court acted without or in e9cess of !urisdiction or with $rave a"use of discretion 4ay "e directed a$ainst an interlocutory order of the court prior to the appeal fro# the !ud$#ent or where there is no appeal or any other plain% speedy or ade-uate re#edy. 4ay "e filed not later than si9ty (./+ days fro# notice of the !ud$#ent% order or resolution sou$ht to "e assailed. ,oes not stay the challen$ed proceedin$s% unless a writ of preli#inary in!unction or a R=. he parties are the a$$rieved party a$ainst the lower court or ?JA and the prevailin$ parties% who there"y respectively "eco#e the petitioners and respondents. A 4R is a condition precedent. he hi$her the court e9ercises ori$inal !urisdiction under its power of control and supervision over the proceedin$s of lower courts.

7owever% althou$h a copy of the petition is served on the lower court concerned% it is only for the purpose of $ivin$ notice that its !ud$#ent should not "e entered since it is not yet e9ecutory "ecause of the pendin$ petition for review thereof. he lower court does not% however% "eco#e a party to the case. *s the appeal "y certiorari under Rule 3; discretionary> Ges. he appellate review under Rule 3; is discretionary and can "e $ranted only when there are special and i#portant reasons therefore. 5an8ona v. *AC

6ee v. 'alve8 6=N order of CA denyin$ R.; petition is a final order> Ges. CA decided 6=N there was a $rave a"use of discretion. ropical 7o#es v. Cortun SC approved co#pro#ise a$ree#ent. ,ecision on the co#pro#ise a$ree#ent only "inds parties to the appeal and does not affect other parties. 1OC1P *=N< a. 6hen the clai#s are inti#ately intertwined. ". 6hen their clai#s are not severa"le.

4ust "e #ade within the re$le#entary period for appeal.

Stays the !ud$#ent% award or order appealed fro#.

he petitioner and respondent are the ori$inal parties to the action% and the lower court or ?JA is not to "e i#pleaded. he prior filin$ of a 4R is N= re-uired. he appellate court is in the e9ercise of its appellate !urisdiction and power of review.

6hat is the effect of failure to present proof of service of copies to the lower court and on the adverse party> 5ac@ of proof of service of copies to the lower court and the adverse party shall result to the outri$ht of the dis#issal of the appeal.
1!0 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

4AAA4 A)1NAAs =)1R)*16 and C71CJ5*S =C 4=,1S =C APP1A5S
1. Period to file an appeal RB51 3/ 1; days fro# notice of order (notice of appeal+ 0/ days fro# notice of order (record on appeal+ N= e9tension for 4N V4R RB51 3& 1; days notice fro# RB51 31 1; days fro# notice of order (notice of appeal+ 0/ days fro# notice of order (record on appeal+ N= e9tension for 4N V4R RB51 30 1; days fro# notice of order% !ud$#ent% pu"lication or denial of 4N or 4R 1st 19tension< 1; days ("ut with pay#ent of fees+ &nd 19tension< 1; days (for co#pellin$ reasons only+ Ges 7 copies RB51 3; 1; days fro# notice of order% !ud$#ent% pu"lication or denial of 4N or 4R 0/ day e9tension + only for !ustifia"le reasons+

&. 4otion to 19tend

0. )erified> 3. No. of copies to "e su"#itted to the appellate court ;. ,oc@et fees .. Service to adverse party of appeal.

1st 19tension< 1; days ("ut with pay#ent of fees+ &nd 19tension< 1; days (for co#pellin$ reasons only+ Ges 7 copies

Ges 18 copies

Proof of pay#ent Copies served to parties. 4 C furnishes copies of trans#ittal to parties a. Parties to the appeal. ". !ud$#entV order appealed fro# c. #aterial dates rule

Pay#ent to CA

Proof of pay#ent R C furnishes copies of referral to parties.

Pay#ent of doc@et fees to CA

Pay fees to SC

7. Contents of the Petition

8. C71CJ5*S

Notice of Appeal 1. Parties &. !ud$#entV final order appealed fro# 0. #aterial dates rule 2 Proof of pay#ent of doc@et fees 2 4e#orandu# of appellant or appellee

a. Cull na#e of parties ". 4aterial dates rule c. State#ent of #atters involvin$ a -uestion of law or fact% or "oth d. duplicate ori$inal or true copies of the !ud$#entV order e. Certification a$ainst foru#2 shoppin$ f. proof of service to parties. Notice of Appeal 2 full na#es of petitioner W respondent 2 State#ent of #aterial dates 2 State#ent of issues% errors of fact or law 2 Ar$u#ents 2 CCS 2 )erification Attach< 2 certified true copyV duplicate ori$inal of !ud$#ent 2 si$nificant pleadin$s Proof of service

a. Parties to the appeal. ". !ud$#entV order appealed fro# c. #aterial dates rule d. copies of relevant pleadin$s (record on appeal+

a. Cull na#e of parties ". State#ent of facts and issues c. duplicate ori$inal or certified true copies of !ud$#entV order d. Certification a$ainst foru#2 shoppin$ e. #aterial dates rule.

a. Cull na#e of parties ". 4aterial dates rule c. State#ent of #atters involvin$ a -uestion of law or fact% or "oth d. duplicate ori$inal or true copies of the !ud$#entV order e. Certification a$ainst foru#2 shoppin$ 2 Na#es of petitioner W respondent 2 4aterial dates rule 2 #aterial alle$ations or reasons or ar$u#ents for the allowance of the petition 2 )erification 2 CCS Attach< 2 certified true copyV duplicate ori$inal of !ud$#ent 2 si$nificant pleadin$s Proof of Service

Notice of Appeal :rief of Appellant 1. su"!ect inde9 &. Assi$n#ent of errors 0. State#ent of case 3. State#ent of facts ;. State#ent of issues .. Ar$u#entV relief 7. Copy of !ud$#ent or final order appealed fro#.

Notice of Appeal :rief of Appellant 1. su"!ect inde9 &. Assi$n#ent of errors 0. State#ent of case 3. State#ent of facts ;. State#ent of issues .. Ar$u#entV relief 7. Copy of !ud$#ent or final order appealed fro#.

1!1 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA the a#ount of P;//.// for costs at the ti#e of the filin$ of the petition. he failure of the petitioner to co#ply with any of the fore$oin$ re-uire#ents s+ !! %e su&&icient $round &or t+e dis'iss ! o& t+e petition. (Sec. 0% Rule 3.+

>>III. Ori$in ! Actions in CA Rule 3. =R*'*NA5 CAS1S
*n all cases ori$inally filed in the Court of Appeals% a. the party institutin$ the action shall "e called the petitioner and ". the opposin$ party the respondent. (Sec. 1% Rule 3.+

itle of cases.

Jurisdiction ac-uired.

over

person

of

respondent%

how

his Rule shall apply to ori$inal actions for certiorari% prohi"ition% #anda#us and -uo warranto. (Sec. &% Rule 3.+ 19cept as otherwise provided% (Sec. &% Rule 3.+ 1. the actions for annul#ent of !ud$#ent shall "e $overned "y Rule 37% &. for certiorari% prohi"ition and #anda#us "y Rule .;% and 0. for -uo warranto "y Rule ...

o what actions applica"le.

he court shall ac-uire !urisdiction over the person of the respondent "y the ser#ice on +i' o& its order or reso!ution indic tin$ its initi ! ction on t+e petition or %y +is #o!unt ry su%'ission to such !urisdiction. (Sec. 3% Rule 3.+

Action "y the court.

he court #ay dis#iss the petition outri$ht with specific reasons for such dis#issal or re-uire the respondent to file a co##ent on the sa#e within ten (1/+ days fro# notice. =nly pleadin$s re-uired "y the court shall "e allowed. All other pleadin$s and papers #ay "e filed only with leave of court. (Sec. ;% Rule 3.+

Contents and filin$ of petitionK co#pliance with re-uire#ents.

effect of non2

,eter#ination of factual issues.
6henever necessary to resolve factual issues% the court itself #ay a. conduct hearin$s thereon or ". dele$ate the reception of the evidence on such issues to any of its #e#"ers or to an appropriate court% a$ency or office. (Sec. .% Rule 3.+

he petition shall contain a. the full n 'es and actual ddresses of all the petitioners and respondents% ". a concise st te'ent o& t+e ' tters involved% the factual "ac@$round of the case% and c. the $rounds re!ied upon &or t+e re!ie& pr yed &or . *n actions filed under Rule .;% the petition shall further indicate the ' teri ! d tes showin$ when notice of the !ud$#ent or final order or resolution su"!ect thereof was received% when a #otion for new trial or reconsideration% if any% was filed and when notice of the denial thereof was received. *t shall "e filed in se#en .E0 c!e r!y !e$i%!e copies to$ether with proo& o& ser#ice thereof on the respondent with the ori$inal copy intended for the court indicated as such "y the petitioner% and shall "e acco#panied "y a clearly le$i"le dup!ic te ori$in ! or certi&ied true copy o& t+e *ud$'ent, order, reso!ution, or ru!in$ su%*ect t+ereo&% such #aterial portions of the record as are referred to therein% and other docu#ents relevant or pertinent thereto. he certification shall "e acco#plished "y the proper cler@ of court or "y his duly authori8ed representative% or "y the proper officer of the court% tri"unal% a$ency or office involved or "y his duly authori8ed representative. he other re-uisite nu#"er of copies of the petition shall "e acco#panied "y clearly le$i"le plain copies of all docu#ents attached to the ori$inal. he petitioner shall also su"#it to$ether with the petition a sworn certification that he has not theretofore co##enced any other action involvin$ the sa#e issues in the Supre#e Court% the Court of Appeals or different divisions thereof% or any other tri"unal or a$encyK if there is such other action or proceedin$% he #ust state the status of the sa#eK and if he should thereafter learn that a si#ilar action or proceedin$ has "een filed or is pendin$ "efore the Supre#e Court% the Court of Appeals% or different divisions thereof% or any other tri"unal or a$ency% he underta@es to pro#ptly infor# the aforesaid courts and other tri"unal or a$ency thereof within five (;+ days therefro#. ZCerti&ic tion $ inst &oru' s+oppin$ [ he petitioner shall pay the correspondin$ doc(et nd ot+er ! "&u! &ees to the cler@ of court and deposit

1ffect of failure to file co##ent.
6hen no co##ent is filed "y any of the respondents% the c se ' y %e decided on t+e % sis o& t+e record% without pre!udice to any disciplinary action which the court #ay ta@e a$ainst the diso"edient party. (Sec. 7% Rule 3.+

RB51 37 ANNB541N =C JB,'41N S =R C*NA5 =R,1RS AN, R1S=5B *=NS Covera$e.
his Rule shall $overn the annul#ent "y the Court of Appeals of !ud$#ents or final orders and resolutions in civil actions of Re$ional rial Courts f or "+ic+ t+e ordin ry re'edies o& ne" tri !, ppe !, petition &or re!ie& or ot+er ppropri te re'edies re no !on$er # i! %!e t+rou$+ no & u!t o& t+e petitioner . (Sec. 1% Rule 37+

'rounds for annul#ent.
he annul#ent #ay "e "ased only on the $rounds of e)trinsic &r ud and ! c( o& *urisdiction. 19trinsic fraud shall not "e a valid $round if it was availed of% or could have "een availed of% in a #otion for new trial or petition for relief. (Sec. &% Rule 37+

Period for filin$ action.

A. *f "ased on e)trinsic &r ud% the action #ust "e filed within four (3+ years fro# its discoveryK :. and if "ased on ! c( o& *urisdiction % "efore it is "arred "y laches or estoppel.

Cilin$ and contents of petition.

he action shall "e co##enced "y filin$ a verified petition alle$in$ therein with particularity

1!2 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 a. the & cts nd t+e ! " re!ied upon &or nnu!'ent, ". as well as those supportin$ the petitionerBs $ood nd su%st nti ! c use o& ction or de&ense % as the case #ay "e. he petition shall "e filed in se#en .E0 c!e r!y !e$i%!e copies% to$ether with sufficient copies correspondin$ to the nu#"er of respondents. A certi&ied true copy o& t+e *ud$'ent or &in ! order or reso!ution shall "e attached to the ori$inal copy of the petition intended for the court and indicated as such "y the petitioner. he petitioner shall also su"#it to$ether with the petition affidavits of witnesses or docu#ents supportin$ the cause of action or defense and a sworn certification that he has not theretofore co##enced any other action involvin$ the sa#e issues in the Supre#e Court% the Court of Appeals or different divisions thereof% or any other tri"unal or a$encyK if there is such other action or proceedin$% he #ust state the status of the sa#e% and if he should thereafter learn that a si#ilar action or proceedin$ has "een filed or is pendin$ "efore the Supre#e Court% the Court of Appeals% or different divisions thereof% or any other tri"unal or a$ency% he underta@es to pro#ptly infor# the aforesaid courts and other tri"unal or a$ency thereof within five (;+ days therefro#. ZCerti&ic tion $ inst &oru'As+oppin$[ (Sec. 3% Rule 37+

JONATHAN PAMPOLINA

Annul#ent of !ud$#ents or final orders of 4unicipal rial Courts.

An action to annul a !ud$#ent or final order of a 4unicipal rial Court shall "e filed in the Re$ional rial Court havin$ !urisdiction over the for#er. *t shall "e treated as an ordinary civil action and sections &% 0% 3% 7% 8 and 9 of this Rule shall "e applica"le thereto. (Sec. 1/% Rule 37+

Re$ ! do Notes Counsel filed an ori$inal action for certiorari with the CA "ut for$ot to attach a certification a$ainst foru# shoppin$. After discoverin$ his #ista@e% he "elatedly su"#its the CCS. Should the CA dis#iss the appeal outri$ht> Ges. he lac@ of CCS is $enerally N= cura"le "y the su"#ission thereof after the filin$ of a petition. *n e9ceptional circu#stances% however% such as the filin$ of the certification a day after "ut within the re$le#entary period for filin$ such petition% the "elated filin$ was allowed as a su"stantial co#pliance. 6hile the filin$ of the certification is #andatory% still the re-uire#ent #ust not "e interpreted literally. (Shipside% *nc. v. CA% 'R No. 13077% &/ Ce"ruary &//1+ 6hen should the deposit for costs "e #ade> he deposit for costs is re-uired to "e #ade upon the filin$ of the co#plaint% unli@e "efore wherein the costs are re-uired upon notice after the petition is $iven due course. he failure of the respondent to file the re-uired co##ent results in a declaration of default and default !ud$#ent a$ainst respondent. rue or false> Calse. he failure of the respondent to file the re-uired co##ent does N= result in a sanction si#ilar to defaults in the C% since the appellate court #ay !ust decide that case on the "asis of the record "efore it% specifically the petition and its attach#ents "ut sans the co##ent or any representation in "ehalf of the respondent. 6hat @ind of re#edy is annul#ent of a !ud$#ent under Rule 37> Annul#ent of a !ud$#ent is a re#edy in law independent of the case where the !ud$#ent sou$ht to "e annulled was rendered. he !ud$#ent #ay "e annulled on the $round of e9trinsic or collateral fraud. A person who is not a party to the !ud$#ent #ay sue for its annul#ent provided he can prove that the sa#e was o"tained throu$h fraud or collusion and that he would "e adversely affected there"y. An action for annul#ent of !ud$#ent #ay "e availed of even if the !ud$#ent to "e annulled has already "een fully e9ecuted or i#ple#ented. (*sla#ic ,aA6ah Council of the Phils. v. CA% 'R No. 8/89&% &9 Septe#"er 1989+

Action "y the court.
Should the court find no su"stantial #erit in the petition% the sa#e ' y %e dis'issed outri$+t with specific reasons for such dis#issal. Should pri#a facie #erit "e found in the petition% the s 'e s+ !! %e $i#en due course nd su''ons s+ !! %e ser#ed on t+e respondent. (Sec. ;% Rule 37+

Procedure.
he procedure in ordinary civil cases shall "e o"served. Should a trial "e necessary% the reception of the evidence #ay "e referred to a #e#"er of the court or a !ud$e of a Re$ional rial Court. (Sec. .% Rule 37+

1ffect of !ud$#ent.
A !ud$#ent of annul#ent shall set aside the -uestioned !ud$#ent or final order or resolution and render the sa#e null and void% without pre!udice to the ori$inal ction %ein$ re&i!ed in t+e proper court . 7owever% where the !ud$#ent or final order or resolution is set aside on the $round of e9trinsic fraud% the court #ay on 'otion order t+e tri ! court to try t+e c se s i& ti'e!y 'otion &or ne" tri ! had "een $ranted therein. (Sec. 7% Rule 37+

Suspension of prescriptive period.

he prescriptive period for the refilin$ of the aforesaid ori$inal action shall "e dee'ed suspended fro# the filin$ of such ori$inal action until the finality of the !ud$#ent of annul#ent. 7owever% the prescriptive period shall not "e suspended where the e)trinsic &r ud is ttri%ut %!e to t+e p! inti&& in t+e ori$in ! ction . (Sec. 8% Rule 37+

Relief availa"le.
he !ud$#ent of annul#ent #ay include the award of da#a$es% attorneyTs fees and other relief. *f the -uestioned !ud$#ent or final order or resolution had already "een e9ecuted% the court #ay issue such orders of restitution or other relief as !ustice and e-uity #ay warrant under the circu#stances. (Sec. 9% Rule 37+

1!3 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN PAMPOLINA

6hat is the #ost i#portant condition for avail#ent of annul#ent of !ud$#ent under Rule 37> he petitioner failed to #ove for new trial in% or appeal fro#% or file a petition for relief a$ainst or ta@e other appropriate re#edies assailin$ the -uestioned !ud$#ent or final order or resolution t+rou$+ no & u!t ttri%ut %!e to +i'. 6hat is e9trinsic or collateral fraud that can "e a $round for a Rule 37 re#edy> 19trinsic or collateral fraud is such that was not revealed to or was even deli"erately suppressed fro# the opposin$ party and the court% hence relief under Rule 37 is availa"le su"!ect to certain conditions. *f such $round of e9trinsic fraud had really "een availed of "y the party in a 4N or PCR in the ori$inal court and was re!ected with finality% he should not "e per#itted another chance on the sa#e $round which had "een concluded "y the ad!udication of the case thereon. *f% on the other hand% he did not avail hi#self thereof% then he #ust suffer the conse-uences of his i#plied waiver. 6hat are the two sta$es in evaluatin$ a petition for annul#ent of !ud$#ent> 1. Preli#inary evaluation of the petition for pri#a facie #erit therein% &. *f in the affir#ative% the issuance of su##ons as in ordinary civil cases and such appropriate proceedin$s thereafter. SSi#ilar to the procedure in Rule 08. 6hat is the re#edy of the a$$rieved party fro# a decision annullin$ a prior !ud$#ent under Rule 37> 1. *f the annul#ent is on the $round of lac@ of !urisdiction% the a$$rieved party #ay refile the action in the proper court. &. *f the annul#ent is "ased on e9trinsic fraud co##itted "y the offendin$ party% the prevailin$ party% on #otion "ased on !ustifia"le $rounds% need not refile the action and the C which rendered the !ud$#ent can "e ordered to try the case anew as if a ti#ely 4N had "een $ranted therein. S he difference lies in the fact that in the second process% the ori$inal !ud$#ent was not tainted "y !urisdictional defects% "ut "y the deception which resulted in pre!udicial errors therein. 4acapa$al v. CAK Silverio v. CA 4acapa$al% a "oard #e#"er of Philippine Cinance% was not #ade aware of the !ud$#ent. A petition for annul#ent of !ud$#ent "ecause of e9trinsic fraud is proper. 5a8aro v. Rural :an@. Su##ons was served in )alen8uela and not in Jatipunan residence. :efore one can invo@e R37

annul#ent of !ud$#ent% petitioner #ust first e9haust all re#edies availa"le. )an 4elle v. 1ndaya he petition did not contain an attach#ent of final order or proceedin$ that was "ein$ appealed fro#.

1!4 of 229

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA *t shall "e the duty of the appellant to file with the court% within forty2five (3;+ days fro# receipt of the notice of the cler@ that all the evidence% oral and docu#entary% are attached to the record% seven (7+ copies of his le$i"ly typewritten% #i#eo$raphed or printed "rief% with proof of service of two (&+ copies thereof upon the appellee. (Sec. 7% Rule 33+

>>IV. Procedure in CA Rule 33 =R,*NARG APP1A51, CAS1S itle of cases.
*n all cases appealed to the Court of Appeals under Rule 31% the title of the case shall re#ain as it was in the court of ori$in% "ut the party appealin$ the case shall "e further referred to as the appellant and the adverse party as the appellee. (Sec. 1% Rule 33+

Contents of appellantTs "rief.

Counsel and $uardians.
he counsel and $uardians ad lite# of the parties in the court of ori$in shall "e respectively considered as their counsel and $uardians ad lite# in the Court of Appeals. 6hen others appear or are appointed% notice thereof shall "e served i##ediately on the adverse party and filed with the court. (Sec. &% Rule 33+

=rder of trans#ittal of record.

*f the ori$inal record or the record on appeal is not tr ns'itted to t+e Court o& Appe !s "it+in t+irty .260 d ys &ter t+e per&ection o& t+e ppe ! % either party #ay file a #otion with the trial court% with notice to the other% for the trans#ittal of such record or record on appeal. (Sec. 0% Rule 33+

,oc@etin$ of case.

Bpon receivin$ the ori$inal record or the record on appeal and the acco#panyin$ docu#ents and e9hi"its trans#itted "y the lower court% as well as the proof of pay#ent of the doc@et and other lawful fees% the cler@ of court of the Court of Appeals shall doc(et t+e c se nd noti&y t+e p rties t+ereo&. 6ithin ten (1/+ days fro# receipt of said notice% the appellant% in appeals "y record on appeal% shall file with the cler@ of court seven (7+ clearly le$i"le copies of the approved record on appeal% to$ether with the proof of service of two (&+ copies thereof upon the appellee. Any un ut+oriKed !ter tion, o'ission or ddition in t+e ppro#ed record on ppe ! s+ !! %e $round &or dis'iss ! o& t+e ppe ! . (Sec. 3% Rule 33+

he appellantTs "rief shall contain% in the order herein indicated% the followin$< (a+ A su"!ect inde9 of the #atter in the "rief with a di$est of the ar$u#ents and pa$e references% and a ta"le of cases alpha"etically arran$ed% te9t"oo@s and statutes cited with references to the pa$es where they are citedK ("+ An assi$n#ent of errors intended to "e ur$ed% which errors shall "e separately% distinctly and concisely stated without repetition and nu#"ered consecutivelyK (c+ Bnder the headin$ IState#ent of the Case%I a clear and concise state#ent of the nature of the action% a su##ary of the proceedin$s% the appealed rulin$s and orders of the court% the nature of the !ud$#ent and any other #atters necessary to an understandin$ of the nature of the controversy% with pa$e references to the recordK (d+ Bnder the headin$ IState#ent of Cacts%I a clear and concise state#ent in a narrative for# of the facts ad#itted "y "oth parties and of those in controversy% to$ether with the su"stance of the proof relatin$ thereto in sufficient detail to #a@e it clearly intelli$i"le% with pa$e references to the recordK (e+ A clear and concise state#ent of the issues of fact or law to "e su"#itted to the court for its !ud$#entK (f+ Bnder the headin$ IAr$u#ent%I the appellantTs ar$u#ents on each assi$n#ent of error with pa$e references to the record. he authorities relied upon shall "e cited "y the pa$e of the report at which the case "e$ins and the pa$e of the report on which the citation is foundK ($+ Bnder the headin$ IRelief%I a specification of the order or !ud$#ent which the appellant see@sK and (h+ *n cases not "rou$ht up "y record on appeal% the appellantTs "rief shall contain% as an appendi9% a copy of the !ud$#ent or final order appealed fro#. (Sec. 10% Rule 33+

AppelleeTs "rief.
6ithin forty2five (3;+ days fro# receipt of the appellantTs "rief% the appellee shall file with the court seven (7+ copies of his le$i"ly typewritten% #i#eo$raphed or printed "rief% with proof of service of two (&+ copies thereof upon the appellant. (Sec. 8% Rule 33+

Co#pletion of record.

6here the record of the doc@eted case is inco#plete% the cler@ of court of the Court of Appeals shall so infor# said court and reco##end to it #easures necessary to co#plete the record. *t shall "e the duty of said court to ta@e appropriate action towards the co#pletion of the record within the shortest possi"le ti#e. (Sec. ;% Rule 33+

Contents of appelleeTs "rief.

,ispensin$ with co#plete record.
6here the co#pletion of the record could not "e acco#plished within a sufficient period allotted for said purpose due to insupera"le or e9tre#ely difficult causes% the court% on its own #otion or on #otion of any of the parties, ' y dec! re t+ t t+e record nd its cco'p nyin$ tr nscripts nd e)+i%its so & r # i! %!e re su&&icient to decide t+e issues r ised in t+e ppe !, and shall issue an order e9plainin$ the reasons for such declaration. (Sec. .% Rule 33+

AppellantTs "rief.

he appelleeTs "rief shall contain% in the order herein indicated% the followin$< (a+ A su"!ect inde9 of the #atter in the "rief with a di$est of the ar$u#ents and pa$e references% and a ta"le of cases alpha"etically arran$ed% te9t"oo@s and statutes cited with references to the pa$es where they are citedK ("+ Bnder the headin$ IState#ent of Cacts%I the appellee shall state that he accepts the state#ent of facts in the appellantTs "rief% or under the headin$ ICounter2State#ent of Cacts%I he shall point out such insufficiencies or inaccuracies as he "elieves e9ist in the appellantTs state#ent of facts with references to the pa$es of the record in support thereof% "ut without repetition of #atters in the appellantTs state#ent of factsK and (c+ Bnder the headin$ IAr$u#ent%I the appellee shall set forth his ar$u#ents in the case on each assi$n#ent of error with pa$e references to the record. he authorities relied on shall "e cited "y the pa$e of the report at which the

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 case "e$ins and the pa$e of the report on which the citation is found. (Sec. 13% Rule 33+

JONATHAN T5 PAMPOLINA

Record of the conference.

AppellantTs reply "rief.
6ithin twenty (&/+ days fro# receipt of the appelleeTs "rief% the appellant #ay file a reply "rief answerin$ points in the appelleeTs "rief not covered in his #ain "rief. (Sec. 9% Rule 33+

he proceedin$s at such conference shall "e recorded and% upon the conclusion thereof% a reso!ution shall "e issued e#"odyin$ all the actions ta@en therein% the stipulations and ad#issions #ade% and the issues defined. (Sec. &% Rule 38+

i#e for filin$ #e#oranda in special cases.
*n certiorari% prohi"ition% #anda#us% -uo warranto and ha"eas corpus cases% the parties shall file% in lieu of "riefs% their respective #e#oranda within a non2e9tendi"le period of thirty (0/+ days fro# receipt of the notice issued "y the cler@ that all the evidence% oral and docu#entary% is already attached to the record. he failure of the appellant to file his #e#orandu# within the period therefor #ay "e a $round &or dis'iss ! o& t+e ppe !. (Sec. 1/% Rule 33+

:indin$ effect of the results of the conference.

Su"!ect to such #odifications which #ay "e #ade to prevent #anifest in!ustice% the resolution in the precedin$ section shall control the su"se-uent proceedin$s in the case unless% within five (;+ days fro# notice thereof% any party shall satisfactorily show valid cause why the sa#e should not "e followed. (Sec. 0% Rule 38+

RB51 39 =RA5 AR'B41N 6hen allowed.
At its own instance or upon #otion of a party% the court #ay hear the parties in oral ar$u#ent on the #erits of a case% or on any #aterial incident in connection therewith. he oral ar$u#ent shall "e li#ited to such #atters as the court #ay specify in its order or resolution. (Sec. 1% Rule 39+

Several appellants or appellees or several counsel for each party.
6here there are several appellants or appellees% each counsel representin$ one or #ore "ut not all of the# s+ !! %e ser#ed "it+ on!y one copy o& t+e %rie&s . 6hen several counsel represent one appellant or appellee% copies of the "rief #ay "e served upon any of the#. (Sec. 11% Rule 33+

19tension of ti#e for filin$ "riefs.
E)tension o& ti'e &or t+e &i!in$ o& %rie&s "i!! not %e !!o"ed, 19cept for $ood and sufficient cause% and only if the #otion for e9tension is filed "efore the e9piration of the ti#e sou$ht to "e e9tended. (Sec. 1&% Rule 33+

Conduct of oral ar$u#ent.
Bnless authori8ed "y the court% only one counsel #ay ar$ue for a party. he duration allowed for each party% the se-uence of the ar$u#entation% and all other related #atters shall "e as directed "y the court. (Sec. &% Rule 39+

?uestions that #ay "e raised on appeal.

6hether or not the appellant has filed a #otion for new trial in the court "elow% he #ay include in his assi$n#ent of errors any -uestion of law or fact that has "een raised in the court "elow and which is within the issues fra#ed "y the parties. (Sec. 1;% Rule 33+

No hearin$ or oral ar$u#ent for #otions.

4otions shall not %e set &or +e rin$ and% unless the court otherwise directs% no hearin$ or oral ar$u#ent shall "e allowed in support thereof. he adverse party #ay file o"!ections to the #otion within five (;+ days fro# service% upon the e9piration of which such #otion shall "e dee#ed su"#itted for resolution. (Sec. 0% Rule 39+

Ru!es 3I to 43 RB51 38 PR15*4*NARG C=NC1R1NC1 Preli#inary conference.
At any ti#e durin$ the pendency of a case% the court #ay call the parties and their counsel to a preli#inary conference< (a+ o consider the possi"ility of an a#ica"le settle#ent% e9cept when the case is not allowed "y law to "e co#pro#isedK ("+ o define% si#plify and clarify the issues for deter#inationK (c+ o for#ulate stipulations of facts and ad#issions of docu#entary e9hi"its% li#it the nu#"er of witnesses to "e presented in cases fallin$ within the ori$inal !urisdiction of the court% or those within its appellate !urisdiction where a #otion for new trial is $ranted on the $round of newly discovered evidenceK and (d+ o ta@e up such other #atters which #ay aid the court in the pro#pt disposition of the case. (Sec. 1% Rule 38+

RB51 ;/ ,*S4*SSA5 =C APP1A5 'rounds for dis#issal of appeal.
An appeal #ay "e dis#issed "y the Court of Appeals% on its own #otion or on that of the appellee% on the followin$ $rounds< (a+ Cailure of the record on appeal to s+o" on its & ce t+ t t+e ppe ! " s t (en "it+in t+e period fi9ed "y these RulesK ("+ Cailure to &i!e t+e notice o& ppe ! or t+e record on ppe ! "it+in t+e period prescri"ed "y these RulesK (c+ Cailure of the appellant to p y t+e doc(et nd ot+er ! "&u! &ees as provided in section 3 of Rule 31K (d+ Un ut+oriKed !ter tions, o'issions or dditions in t+e ppro#ed record on ppe ! as provided in section 3 of Rule 33K (e+ Cailure of the appellant to ser#e nd &i!e t+e re-uired nu'%er o& copies o& +is %rie& or 'e'or ndu' "it+in t+e ti'e provided "y these RulesK (f+ A%sence o& speci&ic ssi$n'ent o& errors in t+e ppe!! ntBs %rie&, or o& p $e re&erences to t+e record

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 as re-uired in section 10% para$raphs (a+% (c+% (d+ and (f+ of Rule 33K ($+ Cailure of the appellant to t (e t+e necess ry steps &or t+e correction or co'p!etion o& t+e record "it+in t+e ti'e !i'ited %y t+e court in its orderK (h+ Cailure of the appellant to ppe r t t+e pre!i'in ry con&erence under Rule 38 or to co'p!y "it+ orders, circu! rs, or directi#es o& t+e court "it+out *usti&i %!e c useK and (i+ he fact that the order or *ud$'ent ppe !ed &ro' is not ppe ! %!e . (Sec. 1% Rule ;/+

JONATHAN T5 PAMPOLINA *f the three Justices do not reach a unani#ous vote% the cler@ shall enter the votes of the dissentin$ Justices in the record. hereafter% the Chair#an of the division shall refer the case% to$ether with the #inutes of the deli"eration% to the Presidin$ Justice who shall desi$nate two Justices chosen "y raffle fro# a#on$ all the other #e#"ers of the court to sit te#porarily with the#% for#in$ a special division of five Justices. he participation of all the five #e#"ers of the special division shall "e necessary for the deli"eration re-uired in section & of this Rule and the concurrence of a #a!ority of such division shall "e re-uired for the pronounce#ent of a !ud$#ent or final resolution. (Sec. 0% Rule ;1+

,is#issal of i#proper appeal to the Court of Appeals.

An appeal under Rule 31 ta@en fro# the Re$ional rial Court to the Court of Appeals raisin$ only -uestions of law shall "e dis#issed% issues purely of law not "ein$ reviewa"le "y said court. Si#ilarly% an appeal "y notice of appeal instead of "y petition for review fro# the appellate !ud$#ent of a Re$ional rial Court shall "e dis#issed. An appeal erroneously ta@en to the Court of Appeals shall not "e transferred to the appropriate court "ut s+ !! %e dis'issed outri$+t. (Sec. &% Rule ;/+

,isposition of a case.
he Court of Appeals% in the e9ercise of its appellate !urisdiction% a. #ay affir#% ". reverse% or c. #odify the !ud$#ent or final order appealed fro#% and #ay direct a new trial or further proceedin$s to "e had. (Sec. 3% Rule ;1+

6ithdrawal of appeal.

An appeal #ay "e withdrawn as of ri$ht at any ti#e "efore the filin$ of the appelleeTs "rief. hereafter% the withdrawal #ay "e allowed in the discretion of the court. (Sec. 0% Rule ;/+

Cor# of decision.

RB51 ;1 JB,'41N 6hen case dee#ed su"#itted for !ud$#ent. A. *n ordinary appeals.
A case shall "e dee#ed su"#itted for !ud$#ent< 1+ 6here no hearin$ on the #erits of the #ain case is held% upon the filin$ of the last pleadin$% "rief% or #e#orandu# re-uired "y the Rules or "y the court itself% or the e9piration of the period for its filin$. &+ 6here such a hearin$ is held% upon its ter#ination or upon the filin$ of the last pleadin$ or #e#orandu# as #ay "e re-uired or per#itted to "e filed "y the court% or the e9piration of the period for its filin$. (Sec. 1% Rule ;1+

1very decision or final resolution of the court in appealed cases shall clearly and distinctly state the findin$s of fact and the conclusions of law on which it is "ased% which #ay "e contained in the decision or final resolution itself% or adopted fro# those set forth in the decision% order% or resolution appealed fro#. (Sec. ;% Rule ;1+

7ar#less error.

No error in either the ad#ission or the e9clusion of evidence and no error or defect in any rulin$ or order or in anythin$ done or o#itted "y the trial court or "y any of the parties is $round for $rantin$ a new trial or for settin$ aside% #odifyin$% or otherwise distur"in$ a !ud$#ent or order% unless refusal to ta@e such action appears to the court inconsistent with su"stantial !ustice. he court at every sta$e of the proceedin$ 'ust disre$ rd ny error or de&ect "+ic+ does not &&ect t+e su%st nti ! ri$+ts o& t+e p rties. (Sec. .% Rule ;1+

Jud$#ent where there are several parties.

:. *n ori$inal actions and petitions for review.2
1+ 6here no co##ent is filed% upon the e9piration of the period to co##ent. &+ 6here no hearin$ is held% upon the filin$ of the last pleadin$ re-uired or per#itted to "e filed "y the court% or the e9piration of the period for its filin$. 0+ 6here a hearin$ on the #erits of the #ain case is held% upon its ter#ination or upon the filin$ of the last pleadin$ or #e#orandu# as #ay "e re-uired or per#itted to "e filed "y the court% or the e9piration of the period for its filin$. (Sec. 1% Rule ;1+

*n all actions or proceedin$s% an appealed !ud$#ent #ay "e affir#ed as to so#e of the appellants% and reversed as to others% and the case shall thereafter "e proceeded with% so far as necessary% as if separate actions had "een "e$un and prosecutedK and e9ecution of the !ud$#ent of affir#ance #ay "e had accordin$ly% and costs #ay "e ad!ud$ed in such cases% as the court shall dee# proper. (Sec. 7% Rule ;1+

?uestions that #ay "e decided.

:y who# rendered.
he !ud$#ent shall "e rendered "y the #e#"ers of the court who participated in the deli"eration on the #erits of the case "efore its assi$n#ent to a #e#"er for the writin$ of the decision. (Sec. &% Rule ;1+

No error which does not affect the !urisdiction over the su"!ect #atter or the validity of the !ud$#ent appealed fro# or the proceedin$s therein will "e considered unless st ted in t+e ssi$n'ent o& errors, or c!ose!y re! ted to or dependent on n ssi$ned error and proper!y r$ued in t+e %rie&% save as the court #ay pass upon plain errors and clerical errors. (Sec. 8% Rule ;1+

?uoru# and votin$ in the court.
he participation of all three Justices of a division shall "e necessary at the deli"eration and the unani#ous vote of the three Justices shall "e re-uired for the pronounce#ent of a !ud$#ent or final resolution.

Pro#ul$ation and notice of !ud$#ent.
After the !ud$#ent or final resolution and dissentin$ or separate opinions% if any% are si$ned "y the Justices ta@in$ part% they shall "e delivered for filin$ to the cler@ who shall indicate thereon the date of pro#ul$ation

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 and cause true copies thereof to "e served upon the parties or their counsel. (Sec. 9% Rule ;1+

JONATHAN T5 PAMPOLINA At any ti#e after the appeal fro# the lower court has "een perfected and "efore the Court of Appeals loses !urisdiction over the case% a party #ay file a #otion for a new trial on the $round o& ne"!y disco#ered e#idence which could not have "een discovered prior to the trial in the court "elow "y the e9ercise of due dili$ence and which is of such a character as would pro"a"ly chan$e the result. he #otion shall "e acco#panied "y &&id #its s+o"in$ t+e & cts constitutin$ t+e $rounds t+ere&or nd t+e ne"!y disco#ered e#idence. (Sec. 1% Rule ;0+

1ntry of !ud$#ents and final resolutions.
*f no appeal or #otion for new trial or reconsideration is filed within the ti#e provided in these Rules% the !ud$#ent or final resolution shall forthwith "e entered "y the cler@ in the "oo@ of entries of !ud$#ents. he date when the !ud$#ent or final resolution "eco#es e9ecutory shall "e dee#ed as the date of its entry. he record shall contain the dispositive part of the !ud$#ent or final resolution and shall "e si$ned "y the cler@% with a certificate that such !ud$#ent or final resolution has "eco#e final and e9ecutory. (Sec. 1/% Rule ;1+

7earin$ and order.
he Court of Appeals shall consider the new evidence to$ether with that adduced at the trial "elow% and #ay $rant or refuse a new trial% or #ay #a@e such order% with notice to "oth parties% as to the ta@in$ of further testi#ony% either orally in court% or "y depositions% or render such other !ud$#ent as ou$ht to "e rendered upon such ter#s as it #ay dee# !ust. (Sec. &% Rule ;0+

19ecution of !ud$#ent.
19cept where the !ud$#ent or final order or resolution% or a portion thereof% is ordered to "e i##ediately e9ecutory% the #otion for its e9ecution #ay only "e filed in the proper court after its entry. *n ori$in ! ctions in the Court of Appeals% its writ of e9ecution shall "e acco#panied "y a certified true copy of the entry of !ud$#ent or final resolution and addressed to any appropriate officer for its enforce#ent. *n ppe !ed c ses% where the #otion for e9ecution pendin$ appeal is filed in the Court of Appeals at a ti#e that it is in possession of the ori$inal record or the record on appeal% the resolution $rantin$ such #otion shall "e trans#itted to the lower court fro# which the case ori$inated% to$ether with a certified true copy of the !ud$#ent or final order to "e e9ecuted% with a directive for such court of ori$in to issue the proper writ for its enforce#ent. (Sec. 11% Rule ;1+

Resolution of #otion.

*n the Court of Appeals% a #otion for new trial shall "e resolved within ninety (9/+ days fro# the date when the court declares it su"#itted for resolution. (Sec. 0% Rule ;0+

Procedure in new trial.

Bnless the court otherwise directs% the procedure in the new trial shall "e the sa#e as that $ranted "y a Re$ional rial Court. (Sec. 3% Rule ;0+

RB51 ;3 *N 1RNA5 :BS*N1SS ,istri"ution of cases a#on$ divisions.
All the cases of the Court of Appeals shall "e allotted a#on$ the different divisions thereof for hearin$ and decision. he Court of Appeals% sittin$ en "anc% shall #a@e proper orders or rules to $overn the allot#ent of cases a#on$ the different divisions% the constitution of such divisions% the re$ular rotation of Justices a#on$ the#% the fillin$ of vacancies occurrin$ therein% and other #atters relatin$ to the "usiness of the courtK and such rules shall continue in force until repealed or altered "y it or "y the Supre#e Court. (Sec. 1% Rule ;3+

RB51 ;& 4= *=N C=R R1C=NS*,1RA *=N Period for filin$.
A party #ay file a #otion for reconsideration of a !ud$#ent or final resolution within fifteen (1;+ days fro# notice thereof% with proof of service on the adverse party. (Sec. 1% Rule ;&+

Second #otion for reconsideration.
No second #otion for reconsideration of a !ud$#ent or final resolution "y the sa#e party shall "e entertained. (Sec. &% Rule ;&+

?uoru# of the Court.
A #a!ority of the actual #e#"ers of the court shall constitute a -uoru# for its session en "anc. hree #e#"ers shall constitute a -uoru# for its sessions of a division. he affir#ative votes of the #a!ority of the #e#"ers present shall "e necessary to pass a resolution of the court en "anc. he affir#ative votes of three #e#"ers of a division shall "e necessary for the pronounce#ent of a !ud$#ent or final resolution% which shall "e reached in consultation "efore the writin$ of the opinion "y any #e#"er of the division. (Sec. &% Rule ;3+

Resolution of #otion.

*n the Court of Appeals% a #otion for reconsideration shall "e resolved within ninety (9/+ days fro# the date when the court declares it su"#itted for resolution. (Sec. 0% Rule ;&+

Stay of e9ecution.

he pendency of a #otion for reconsideration filed on ti#e and "y the proper party shall stay the e9ecution of the !ud$#ent or final resolution sou$ht to "e reconsidered unless the court% for $ood reasons% shall otherwise direct. (Sec. 3% Rule ;&+

RB51 ;0 N16 R*A5 Period for filin$K $round.

Re$ ! do Notes Can the CA consider errors that were not assi$ned in the appellantAs "rief>

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA

'1N1RA5 RB51< No. =nly errors specifically assi$ned and properly ar$ued in the "rief will "e considered. 1OC1P *=NS< a. Bnassi$ned errors affectin$ !urisdiction over the su"!ect #atter and plain and clerical errors. ". Bnassi$ned errors closely related to or dependent upon an assi$ned error and properly ar$ued in the "rief. c. Bnassi$ned errors which are necessary for a !ust decision in the case% or in the interest of !ustice% if they involve -uestions passed upon in the C and are #atters of record havin$ so#e "earin$ on the issues su"#itted. (Jorean Airlines v. CA% 'R No. 113/.1% 0 Au$ust 1993+ he "asic procedural rule is that only errors clai#ed and assi$ned "y a party will "e considered "y the court% 1OC1P errors affectin$ its !urisdiction over the su"!ect #atter. Can an appellee who has not appealed #a@e assi$n#ent of errors of the decision of the lower court in his appelleeAs "rief> No. An appellee who has N= appealed cannot #a@e assi$n#ents of errors in his "rief. ('orospe v. Penaflorida% 1/1 Phil. 88.+ he appellee cannot assi$n errors to have the !ud$#ent #odified% for to do so% he #ust have appealed (Appari v. CA% 52&/&73% 0/ =cto"er 19.;+ Althou$h% the appellee who has not appealed can #a@e counter2assi$n#ents of errors in order to sustain the !ud$#ent. (Saen8 v. 4itchel% ./ Phil. .9+. An appellee% in his "rief% can also ar$ue on issues raised at the trial to sustain the !ud$#ent in his favor on other $rounds% even if the sa#e were not included in the decision of the court a -uo nor raised in the appellantAs assi$n#ent of errors or ar$u#ents. 7ence% the appellate court can affir# a !ud$#ent on $rounds i$nored or erroneously decided "y the lower court. (Relativo v. Castro% 7. Phil. ;.0+ 6hat @ind of -uestions can "e raised on appeal> he ordinary appeal of cases can only raise -uestions of law or fact that a. were raised in the court "elow% and ". are within the issues fra#ed "y the parties therein. An issue which was neither averred in the co#plaint nor raised durin$ the trial in the court "elow cannot "e raised for the first ti#e on appeal as it would "e offensive to the "asic rules of fair play% !ustice and due process. Can parties chan$e their theory of action or defense on appeal> No% since these chan$e of theories would "e outside the issues fra#ed in the lower court. (At@ins% Jroll W Co.% v. Chu 7uan e@% 1/& Phil. 938+ 6ill the reversal of a !ud$#ent on appeal affect parties who did not appeal>

No. he reversal of a !ud$#ent on appeal is "indin$ only on the parties in the appealed case and does not affect or inure to the "enefit of whose who did not !oin or were not #ade parties to the appeal. 7owever% where a !ud$#ent cannot "e reversed as to the party appealin$ without affectin$ the ri$hts and lia"ilities of the parties who did not appeal and those who appealed are so interwoven and dependent on each other as to "e insepara"le% a reversal as to one operates as a reversal as to all "ecause of the co##unity of their interests. ( ropical 7o#es *nc. v. Cortun% 'R No. ;1;;3% 10 January 1989+. Just li@e other #otions% #otions in the SC and CA #ust contain notices of hearin$. rue or Calse. Calse. 4otions in the SC and CA do not contain notices of hearin$ of said #otions as N= oral ar$u#ents will "e heard in support thereof. *f the appellate court desiers to hold a hearin$ thereon% it will itself set the date with notice to the parties. *f such notice of hearin$ is appended to the #otion% the court #ay si#ply disre$ard the sa#e. Are the $rounds for dis#issin$ an appeal under Sec. 1 Rule ;/ #andatory> No. 19cept for Sec. 1 ("+% the fore$oin$ $rounds for the dis#issal of an appeal are ,*R1C =RG and not #andatory% and it is not the #inisterial duty of the court to dis#iss the appeal. (Ayala 5and v. Carpo% 'R No. 13/1.&% && Nove#"er &///+ Aside fro# the $rounds enu#erated under Sec. 1% Rule ;/% what are the other $rounds for the dis#issal of an appeal> a. :y a$ree#ent of the parties% as where the case was a#ica"ly settled "y the#. (Arcos v. Aradales% 52 &7033% &8 4ay 197/+ ". 6here the appealed case has "eco#e #oot or acade#ic. (Ca#us v. CA% 52101&;% 10 Ce"ruary 19.9+ c. 6here the appeal is frivolous. (de la Cru8 .v :lanco% 70 Phil. ;9.+ A files an appeal under Rule 31 to the CA% -uestionin$ the decision of the R C on a -uestion of law. CA dis#isses the case for lac@ of !urisdiction to hear cases on -uestions of law and forwards the case to the SC. 6as the CA action proper> No. An appeal erroneously ta@en to the CA shall not "e transferred to the appropriate court "ut shall "e dis#issed outri$ht. 6ill the resolution of a division "e valid% when two of the three !ustices are already resi$ned> No. o "e "indin$% a !ud$#ent #ust "e duly si$ned and pro#ul$ated durin$ the incu#"ency of the !ud$e who si$ned it. 6here the decision was pro#ul$ated after two of the three !ustices necessary to constitute a -uoru# in a division had lost their authority to act as

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA

!ustices "y reason of the presidential acceptance of their resi$nations of which they were infor#ed "efore such pro#ul$ation% said decision is null and void. (5ao v. o2Chip% 'R No. 7.;93% &. Ce"ruary 1988+ 6hen the CA in the e9ercise of its appellate !urisdiction directs a new trial or further proceedin$s to "e had% can the CA hear the case> '1N1RA5 RB51< No. he case shall ordinarily "e re#anded to the court a -uo% as the CA is not essentially a trial court. 1OC1P *=N< Bnder Sec. ;% 1= 00% H he CA shall have the power to receive evidence and perfor# any and all acts necessary to resolve factual issues raised on a. cases fallin$ within its ori$inal !urisdiction% such as actions for annul#ent of !ud$#ents% as provided in para$raph (&+ hereof% and ". cases fallin$ within its appellate !urisdiction wherein a 4N "ased only on the $round of newly discovered evidence is $ranted "y it. he CA will issue the writ of e9ecution of its decisions. rue or Calse. *t depends on 6=N the CA e9ercises ori$inal or appellate !urisdiction. a. *n actions ori$inally co##enced in the CA% the writ of e9ecution shall "e issued "y it and addressed to any appropriate officer for its enforce#ent. o o"viate any possi"le -uestions% the writ shall "e acco#panied "y a certified true copy of the entry of !ud$#ent% final order or resolution. ". *n cases pendin$ on appeal in the CA% a #otion for discretionary e9ecution of the !ud$#ent of the C #ay "e filed in the CA% provided the CA is in possession of the ori$inal record or the record on appeal. *f it $rants the #otion% it will N= issue a writ of e9ecution "ut shall order the court of ori$in to issue the writ upon receipt of its resolution $rantin$ the #otion therefore. A copy of such resolution and a certified copy of the !ud$#ent or final order to "e e9ecuted shall forthwith "e trans#itted to said trial court.

SC Reso!ution o& Fe%ru ry /E, /DDI

Cucueco v. CA

7eirs of the 5ate Cru8 :arredo v. Asis.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA ($+ he fact that the case is not appeala"le to the Supre#e court. (Sec. ;% Rule ;.2:+

>>V. Procedure in SC RB51 ;.2A ORI<INAL CASES =ri$inal cases co$ni8a"le.
=nly petitions for 1. certiorari% &. prohi"ition% 0. #anda#us% 3. -uo warranto% ;. ha"eas corpus% .. disciplinary proceedin$ a$ainst #e#"ers of the !udiciary and attorneys% and 7. cases affectin$ a#"assadors% other pu"lic #inisters and consuls #ay "e filed ori$inally in the Supre#e Court. (Sec. 1% Rule ;.2A+

,isposition of i#proper appeal.
19cept as provided in Section 0% Rule 1&& re$ardin$ appeals in cri#inal cases where the penalty i#posed is death% reclusion perpetua or life i#prison#ent% an appeal ta@en to the Supre#e Court "y notice o& ppe ! shall "e dis#issed. An appeal "y certiorari ta@en to the Supre#e Court fro# the Re$ional rial Court su"#ittin$ issues of fact ' y %e re&erred to t+e Court o& Appe !s &or decision or ppropri te ction. he deter#ination of the Supre#e Court on whether or not issues of fact are involved shall "e final. (Sec. .% Rule ;.2:+

Procedure if opinion is e-ually divided.
6here the Court en "anc is e-ually divided in opinion% or the necessary #a!ority cannot "e had% the case shall a$ain "e deli"erated on% and if after such deli"eration no decision is reached% the ori$in ! ction co##enced in the Court shall "e dis#issedK in ppe !ed c ses% the !ud$#ent or order appealed fro# shall stand affir#edK and on !! incident ! ' tters% the petition or #otion shall "e denied. (Sec. 7% Rule ;.2:+

Rules applica"le.
he procedure in ori$inal cases for certiorari% prohi"ition% #anda#us% -uo warranto and ha"eas corpus shall "e in accordance with the applica"le provisions of the Constitution% laws% and Rules 3.% 38% 39% ;1% ;& and this Rule% su"!ect to the followin$ provisions< a+ All references in said Rules to the Court of Appeals shall "e understood to also apply to the Supre#e CourtK "+ he portions of said Rules dealin$ strictly with and specifically intended for appealed cases in the Court of Appeals shall not "e applica"leK and c+ 1i$hteen (18+ clearly le$i"le copies of the petition shall "e filed% to$ether with proof of service on all adverse parties. (Sec. &% Rule ;.2A+ he proceedin$s for disciplinary action a$ainst #e#"ers of the !udiciary shall "e $overned "y the laws and Rules prescri"ed therefor% and those a$ainst attorneys "y Rule 1092:% as a#ended. (Sec. &% Rule ;.2A+

See also Rule 3;% 38% ;1.1% ;1.&% ;1.;211 and ;& Re$ ! do Notes Can the SC review errors not assi$ned on appeal to it> Ges. he SC is clothed with a#ple authority to review #atters% even if they are not assi$ned as errors on appeal% if it finds that their consideration is necessary in arrivin$ a !ust decision of the case. *t #ay consider an unassi$ned error closely related to an error properly assi$ned or upon which the deter#ination of the -uestion properly assi$ned is dependent. Curther#ore% where the SC is in a position to resolve the dispute "ased on the records "efore it% it #ay resolve the action on the #erits in the pu"lic interest and for the e9peditious ad#inistration of !ustice% as such where the ends of !ustice would not "e su"served "y the re#and of the case. (Ro#an Catholic Arch"ishop of 4anila v. CA 'R. 773&;% 19 June 1991 and Sec. 8% Rule ;1+

RB51 ;.2: APPEALED CASES 4ode of appeal.
An appeal to the Supre#e Court #ay "e ta@en only "y a petition for review on certiorari% e)cept in cri#inal cases where the penalty i#posed is death% reclusion perpetua or life i#prison#ent. (Sec. 0% Rule ;.2:+

Procedure.

he appeal shall "e $overned "y and disposed of in accordance with the applica"le provisions of the constitution% laws% Rules 3;% 38% Sections 1% &% and ; to 11 of Rule ;1% ;& and this Rule. (Sec. 3% Rule ;.2:+

'rounds for dis#issal of appeal.

he appeal #ay "e dis#issed #otu proprio or on #otion of the respondent on the followin$ $rounds< (a+ Cailure to ta@e the appeal within the re$le#entary periodK ("+ 5ac@ of #erit in the petitionK (c+ Cailure to pay the re-uisite doc@et fee and other lawful fees or to #a@e a deposit for costsK (d+ Cailure to co#ply with the re-uire#ents re$ardin$ proof of service and contents of and the docu#ents which should acco#pany the petitionK (e+ Cailure to co#ply with any circular% directive or order of the Supre#e Court without !ustifia"le causeK (f+ 1rror in the choice or #ode of appealK and

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA appoint#ent of the receiver has "een applied for e9 parte. A#ount is dou"le the value of the personal property to "e sei8ed. No "ond is $enerally re-uired fro# the applicant.

>>VI. Pro#ision ! Re'edies O#er#ie" o& Pro#ision ! Re'edies 1. &. 0. 3. ;. Preli#inary Attach#ent (Rule ;7+ Preli#inary *n!unction (Rule ;8+ Receivership (Rule ;9+ Replevin (Rule ./+ Support Pendente 5ite (Rule .1+
Replevin (R./+ Support Pendente (R.1+ 5ite

1. Preli#inary Attach#ent (Rule ;7+ Pre!i'in ry Consider tions 6hat are provisional re#edies> Provisional re#edies% also @nown as ancillary or au9iliary re#edies% are writs and processes availa"le durin$ the pendency of the action which #ay "e resorted to "y a liti$ant to preserve and protect certain ri$hts and interests therein pendin$ rendition% and for purposes of the ulti#ate effects% of a final !ud$e#ent in the case. hey are provisional "ecause they constitute te#porary #easures availed of durin$ the pendency of the action and they are ancillary "ecause they are #ere incidents in and are dependent upon the result of the #ain action. Can the 4e C% 4 C and 4C C $rant provisional re#edies> Ges. All inferior courts can $rant all appropriate provisional re#edies% provided that the #ain action is within their !urisdiction. 671N AR1 PR=)*S*=NA5 R141,*1S A)A*5A:51.
Provisional Re#edy Preli#inary Attach#ent (R;7+ Preli#inary *n!unction (R;8+ Receivership (R;9+ 6hen Availa"le At any sta$e of the action "ut "efore the entry of a final !ud$#ent in the case. At any sta$e of the action "ut "efore the entry of a final !ud$#ent in the case. At any sta$e of the action or proceedin$ and even after final !ud$#ent therein in order to preserve the property involved or to aid e9ecution or otherwise to carry the !ud$#ent into effect. :efore the defendant files his answer At any sta$e of the action% and even for the first ti#e on appeal provided the "asis or propriety thereof was esta"lished at the trial% "ut "efore the final !ud$#ent in said case on appeal.

:autistaAs =verview of Procedure for Preli#inary Attach#ent
COTION FOR PRELICINARL ATTACFCENT Party files a #otion for Preli#inary Attach#ent in court in which the action is pendin$ or in the CA or SC. (Adverse party #ust have notice of the #otion.+ S:y 6ho< Any party includin$ a defendant on his counterclai#% a co2party on his cross clai#% or 0rd party plaintiff on his 0rd party clai#. S6hen< At the co##ence#ent of the action% or at any ti#e "efore entry of !ud$#ent ↓ AFFIDAVIT Applicant or so#e other person who personally @nows the facts #ust su"#it an affidavit. C=N 1N S of the Affidavit< 1. 7is cause of action (which #ust "e found to "e e9istin$ and sufficient+ &. he $round for the application is covered "y the instances provided for in Sec. 1% Rule ;7 0. here is N= other sufficient security for the clai# sou$ht to "e enforced "y the action 3. he a#ount due to the applicant% or the value of the property the possession of which is entitled to recover% is as #uch as the su# for which the order is $ranted a"ove all le$al counter clai#s. ↓ 9OND Applicant #ust then $ive a "ond e9ecuted to the adverse party in the a#ount fi9ed "y the court in its order. SC=N,* *=NS of the :=N,< he applicant will pay all the costs which #ay "e ad!ud$ed to theadverse party and all da#a$es which he #ay sustain "y reason of the attach#ent% if the court shall finally ad!ud$ed that the applicant was not entitled to the writ. ↓ FEARIN< ON TFE COTION ↓ DECISION OF TFE COURT ON TFE COTION he court will decide 6=N to $rant the writ and issue its order accordin$ly. ↓ ENFORCECENT OF TFE WRIT *f the court $rants the writ% then the sheriff shall enforce the writ without delay and with all reasona"le dili$ence. S he property attached should "e located in the Philippines% "elon$ to the party a$ainst who# the writ is issued% not e9e#pt fro# e9ecution and "e sufficient to satisfy the applicantAs de#and (not e9cessive+. ↓ 1nforce#ent of the 6rit #ust "e preceded or conte#poraneously acco#panied "y the followin$< 1. Service of Su##ons &. Copy of the Co#plaint

Replevin (R./+ Support Pendente 5ite (R.1+

A#ount of :ond Re-uired for Provisional Re#edies.
Provisional Re#edy Preli#inary Attach#ent (R;7+ Preli#inary *n!unction (R;8+ Receivership (R;9+ A#ount of :ond Sound discretion of the court.

Sound discretion of the court. :ond is fi9ed "y the court and always re-uired of the petitioner% 6=N the

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 0. Copy of the Application for Attach#ent 3. A copy of the applicantAs affidavit and "ond ;. =rder and 6rit of Attach#ent 1OC1P *=NS to Conte#poraneous Service of Su##ons a. 6here personal or su"stituted service of su##onds could not "e effected despite dili$ent efforts ". he defendant is a resident of the Philippines te#porarily a"sent therefro# c. he defendant is a non2resident of the Philippines. d. he action is one in re# or -uasi in re#. ↓ SFERIFF8S RETURN After enforcin$ the writ% the sheriff #ust without delay% #a@e a return of the writ to the court which issued it. S he return #ust "e acco#panied "y the followin$< a. Cull state#ent of proceedin$s under the writ. ". Co#plete inventory of the property attached. c. Counter2"ond% if any% $iven "y the party a$ainst who# the attach#ent was issued. SS he sheriff shall also serve copies of the fore$oin$ on the applicant. ↓ APPLICATION FOR DISCFAR<E he party whose property was attached or his a$ent% #ay #ove for the dischar$e of the attach#ent wholly or in part on the security $iven. ↓ SATISFACTION OF JUD<CENT he sheriff #ay then cause the !ud$#ent to "e satisfied out of the property attached as follows< (a+ :y payin$ to the !ud$#ent o"li$ee the proceeds of all sales of perisha"le or other property sold in pursuance of the order of the court% or so #uch as shall "e necessary to satisfy the !ud$#entK ("+ *f any "alance re#ains due% "y sellin$ so #uch of the property% real or personal% as #ay "e necessary to satisfy the "alance% if enou$h for that purpose re#ain in the sheriffTs hands% or in those of the cler@ of the courtK (c+ :y collectin$ fro# all persons havin$ in their possession credits "elon$in$ to the !ud$#ent o"li$or% or owin$ de"ts to the latter at the ti#e of the attach#ent of such credits or de"ts% the a#ount of such credits and de"ts as deter#ine "y the court in the action% and stated in the !ud$#ent% and payin$ the proceeds of such collection over to the !ud$#ent o"li$ee.

JONATHAN T5 PAMPOLINA (c+ *n an action to recover the possession of property un!ustly or fraudulently ta@en% detained or converted% when the property% or any part thereof% + s %een conce !ed, re'o#ed, or disposed o& to pre#ent its %ein$ &ound or t (en %y t+e pp!ic nt or n ut+oriKed person K (d+ *n an action a$ainst a party who has "een $ui!ty o& &r ud in contr ctin$ t+e de%t or incurrin$ t+e o%!i$ tion upon which the action is "rou$ht% or in the perfor#ance thereofK (e+ *n an action a$ainst a party who has re#oved or disposed of his property% or is a"out to do so% "it+ intent to de&r ud +is creditorsK or (f+ *n an action a$ainst a p rty "+o does not reside nd is not &ound in t+e P+i!ippines % or on "+o' su''ons ' y %e ser#ed %y pu%!ic tion. (Sec. 1% Rule ;7+

*ssuance and contents of order.

An order of attach#ent #ay "e issued eit+er e) p rte or upon 'otion "it+ notice nd +e rin$ "y the court in which the action is pendin$% or "y the Court of Appeals or the Supre#e Court% and #ust re-uire the sheriff of the court to attach so #uch of the property in the Philippines of the party a$ainst who# it is issued% not e9e#pt fro# e9ecution% as #ay "e sufficient to satisfy the applicantTs de#and% unless such party ' (es deposit or $i#es %ond s +erein &ter pro#ided in n 'ount e-u ! to t+ t &i)ed in t+e order % which #ay "e the a#ount sufficient to satisfy the applicantTs de#and or the value of the property to "e attached as stated "y the applicant% e9clusive of costs. Several writs #ay "e issued at the sa#e ti#e to the sheriffs of the courts of different !udicial re$ions. (Sec. &% Rule ;7+

Affidavit and "ond re-uired.
An order of attach#ent shall "e $ranted only when it appears "y the affidavit of the applicant% or of so#e other person who personally @nows the facts% a. that a su&&icient c use o& ction e9ists% ". that the case is one o& t+ose 'entioned in section / +ereo&% c. that there is no ot+er su&&icient security for the clai# sou$ht to "e enforced "y the action% and d. that the a#ount due to the applicant% or the value of the property the possession of which he is entitled to recover% is s 'uc+ s t+e su' &or "+ic+ t+e order is $r nted %o#e !! !e$ ! counterc! i's . he affidavit% and the "ond re-uired "y the ne9t succeedin$ section% #ust "e duly filed with the court "efore the order issues. (Sec. 0% Rule ;7+

RB51 ;7 PR15*4*NARG A

AC741N

'rounds upon which attach#ent #ay issue.
At t+e co''ence'ent o& t+e ction or t ny ti'e %e&ore entry o& *ud$'ent% a plaintiff or any proper party #ay have the property of the adverse party attached as security for the satisfaction of any !ud$#ent that #ay "e recovered in the followin$ cases< (a+ *n an action for the recovery of a specified a#ount of #oney or da#a$es% other than #oral and e9e#plary% on a cause of action arisin$ fro# law% contract% -uasi2contract% delict or -uasi2delict a$ainst a p rty "+o is %out to dep rt &ro' t+e P+i!ippines "+ic+ intent to de&r ud +is creditorsK ("+ *n an action for #oney or property e'%eKK!ed or &r udu!ent!y 'is pp!ied or con#erted to +is o"n use %y pu%!ic o&&icer, or n o&&icer o& corpor tion, or n ttorney, & ctor, %ro(er $ent, or c!er( % in the course of his e#ploy#ent as such% or "y other person in a fiduciary capacity% or for a willful violation of dutyK

Condition of applicantTs "ond.

he party applyin$ for the order #ust thereafter $ive a %ond e9ecuted to the adverse party a. in the a#ount fi9ed "y the court in its order $rantin$ the issuance of the writ% ". conditioned that the latter will pay all the costs which #ay "e ad!ud$ed to the adverse party and all da#a$es which he #ay sustain "y reason of the attach#ent% if the court shall finally ad!ud$ed that the applicant was not entitled there to. (Sec. 3% Rule ;7+

4anner of attachin$ property.
he sheriff enforcin$ the writ shall without delay and with all reasona"le dili$ence attach% to await !ud$#ent and e9ecution in the action% on!y so 'uc+ o& t+e property in t+e P+i!ippines o& t+e p rty $ inst "+o'

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 t+e "rit is issued, not e)e'pt &ro' e)ecution, s ' y %e su&&icient to s tis&y t+e pp!ic ntBs de' nd % unless the for#er #a@es a deposit with the court fro# which the writ is issued% or $ives a counter %ond e9ecuted to the applicant% in an a#ount e-ual to the "ond fi9ed "y the court in the order of attach#ent or to the value of the property to "e attached% e9clusive of costs. (Sec. ;% Rule ;7+ No levy on attach#ent pursuant to the writ issued under section & hereof shall "e enforced unless it is preceded% or conte#poraneously acco#panied% a. "y service of su##ons% ". to$ether with a copy of the co#plaint% c. the application for attach#ent% d. the applicantTs affidavit and "ond% and e. the order and writ of attach#ent% on the defendant within the Philippines. (Sec. ;% Rule ;7+ he re-uire#ent of prior or conte#poraneous service of su##ons shall not apply a. where the su##ons could not "e served personally or "y su"stituted service despite dili$ent efforts% or ". the defendant is a resident of the Philippines te#porarily a"sent therefro#% or c. the defendant is a non2resident of the Philippines% or the action is one in re# or -uasi in re#. (Sec. ;% Rule ;7+

JONATHAN T5 PAMPOLINA accurate for the identification of the land or interest to "e affected shall "e included in the re$istration of such attach#entK ("+ Person ! property c p %!e o& ' nu ! de!i#ery % "y ta@in$ and safely @eepin$ it in his custody% after issuin$ the correspondin$ receipt thereforK (c+ Stoc(s or s+ res, or n interest in stoc(s or s+ res, o& ny corpor tion or co'p ny % "y leavin$ with the president or #ana$in$ a$ent thereof% a copy of the writ% and a notice statin$ that the stoc@ or interest of the party a$ainst who# the attach#ent is issued is attached in pursuance of such writK (d+ De%ts nd credits, inc!udin$ % n( deposits, &in nci ! interest, roy !ties, co''issions, nd ot+er person ! property not c p %!e o& ' nu ! de!i#ery % "y leavin$ with the person owin$ such de"ts% or havin$ in his possession or under his control% such credits or other personal property% or with his a$ent% a copy of the writ% and notice that the de"ts owin$ "y hi# to the party a$ainst who# attach#ent is issued% and the credits and other personal property in his possession% or under his control% "elon$in$ to said party% are attached in pursuance of such writK (e+ he interest o& t+e p rty "+o' tt c+'ent is issued in property %e!on$in$ to t+e est te o& t+e decedent% whether as heir% le$atee% or devisee% "y servin$ the e9ecutor or ad#inistrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. A copy of said writ of attach#ent and of said notice shall also "e filed in the office of the cler@ of the court in which said estate is "ein$ settled and served upon the heir% le$atee or devisee concerned. *f the property sou$ht to "e attached is in custodia le$is% a copy of the writ of attach#ent shall "e filed with the proper court or -uasi2!udicial a$ency% and notice of the attach#ent served upon the custodian of such property. (Sec. 7% Rule ;7+

SheriffTs return.

After enforcin$ the writ% the sheriff #ust li@ewise without delay #a@e a return thereon to the court fro# which the writ issued% a. with a full state#ent of his proceedin$s under the writ and ". a co#plete inventory of the property attached% c. to$ether with any counter2"ond $iven "y the party a$ainst who# attach#ent is issued% and serve copies thereof on the applicant. (Sec. .% Rule ;7+

Attach#ent of real and personal propertyK recordin$ thereof.
Real and personal property shall "e attached "y the sheriff e9ecutin$ the writ in the followin$ #anner< (a+ Re ! property, or $ro"in$ crops t+ereon, or ny interest t+erein% standin$ upon the record of the re$istry of deed of the province in the na#e of the party a$ainst who# attach#ent is issued% or not appearin$ at all upon such records% or "elon$in$ to the party a$ainst who# attach#ent is issued and held "y any other person% or standin$ on the records of the re$istry of deeds in the na#e of any other person% "y filin$ with the re$istry of deeds a copy of the order% to$ether with a description of the property attached% and a notice that it is attached% or that such real property and any interest therein held "y or standin$ in the na#e of such other person are attached% and "y leavin$ a copy of such order% description% and notice with the occupant of the property% if any% or with such other person or his a$ent if found within the province. 6here the property has "een "rou$ht under the operation of either the 5and Re$istration Act or the Property Re$istration ,ecree% the notice shall contain a reference to the nu#"er of the certificate of title% the volu#e and pa$e in the re$istration "oo@ where the certificate is re$istered% and the re$istered owner or owners thereof. he re$istrar of deed #ust inde9 attach#ents filed under this section in the na#es of the applicant% the adverse party% or the person "y who# the property is held or in whose na#e it stands in the records. *f the attach#ent is not clai#ed on the entire area of the land covered "y the certificate of title% a description sufficiently

1ffect of attach#ent of de"ts% credits and all other si#ilar personal property.
All persons havin$ in their possession or under their control any credits or other si#ilar personal property "elon$in$ to the party a$ainst who# attach#ent is issued% or owin$ any de"ts to hi#% at the ti#e of service upon the# of the copy of the writ of attach#ent and notice as provided in the last precedin$ section% s+ !! %e !i %!e to t+e pp!ic nt &or t+e 'ount o& suc+ credits, de%ts or ot+er si'i! r person ! property % until the attach#ent is dischar$ed% or any !ud$#ent recovered "y hi# is satisfied% unless such property is delivered or transferred% or such de"ts are paid% to the cler@% sheriff% or other proper officer of the court issuin$ the attach#ent. (Sec. 8% Rule ;7+

1ffect of attach#ent of interest in property "elon$in$ to the estate of a decedent.

he attach#ent of the interest of an heir% le$atee% or devisee in the property "elon$in$ to the estate of a decedent s+ !! not i'p ir t+e po"er o& t+e e)ecutor, d'inistr tor, or ot+er person ! represent ti#e o& t+e decedent o#er suc+ property &or t+e purpose o& d'inistr tion . Such personal representative% however% shall report the attach#ent to the court when any petition for distri"ution is filed% and in the order #ade upon such petition% distri"ution #ay "e awarded to such heir% le$atee%

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 or devisee% "ut the property attached shall "e ordered delivered to the sheriff #a@in$ the levy% su"!ect to the clai# of such heir% le$atee% or devisee% or any person clai#in$ under hi#. (Sec. 9% Rule ;7+

JONATHAN T5 PAMPOLINA attachin$ party #ay apply for a new order of attach#ent. (Sec. 1&% Rule ;7+

,ischar$e of attach#ent on other $rounds.
he party whose property has "een ordered attached #ay file a #otion with the court in which the action is pendin$% "efore or after levy or even after the release of the attached property% for an order to set side or disc+ r$ed t+e tt c+'ent on t+e $round t+ t t+e s 'e " s i'proper!y or irre$u! r!y issued or en&orced, or t+ t t+e %ond is insu&&icient . *f the tt c+'ent is e)cessi#e % the dischar$e shall "e li#ited to the e9cess. *f the #otion "e #ade on affidavits on the part of the #ovant "ut not otherwise% the attachin$ party #ay oppose the #otion "y counter2affidavits or other evidence in addition to that on which the attach#ent was #ade. After due notice and hearin$% the court shall order the settin$ aside or the correspondin$ dischar$e of the attach#ent if it appears that it was i#properly or irre$ularly issued or enforced% or that the "ond is insufficient% or that the attach#ent is e9cessive% and the defect is not cured forthwith. (Sec. 10% Rule ;7+

19a#ination of party whose property is attached and persons inde"ted to hi# or controllin$ his propertyK delivery of property to sheriff.
Any person owin$ de"ts to the party whose property is attached or havin$ in his possession or under his control any credit or other personal property "elon$in$ to such party% #ay "e re-uired to attend "efore the court in which the action is pendin$% or "efore a co##issioner appointed "y the court% and "e e9a#ine on oath respectin$ the sa#e. he party whose property is attached #ay also "e re-uired to attend for the purpose of $ivin$ infor#ation respectin$ his property% and #ay "e e9a#ined on oath. he court #ay% after such e9a#ination% order personal property capa"le of #anual delivery "elon$in$ to hi#% in the possession of the person so re-uired to attend "efore the court% to "e delivered to the cler@ of the court or sheriff on such ter#s as #ay "e !ust% havin$ reference to any lien thereon or clai# a$ainst the sa#e% to await the !ud$#ent in the action. (Sec. 1/% Rule ;7+

6hen attached property #ay "e sold after levy on attach#ent and "efore entry of !ud$#ent.
6henever it shall "e #ade to appear to the court in which the action is pendin$% upon hearin$ with notice to "oth parties% t+ t t+e p rty tt c+ed is peris+ %!e, or t+ t t+e interests o& !! t+e p rties to t+e ction "i!! %e "i!! %e su%ser#ed %y t+e s !e t+ereo& % the court #ay order such property to "e sold at pu"lic auction in such #anner as it #ay direct% and the proceeds of such sale to "e deposited in court to a"ide the !ud$#ent in the action. (Sec. 11% Rule ;7+

Proceedin$s person.

where

property

clai#ed

"y

t+ird

,ischar$e of attach#ent upon $ivin$ counter "ond.

After a writ of attach#ent has "een enforced% the party whose property has "een attached% or the person appearin$ on his "ehalf% #ay #ove for the dischar$e of the attach#ent wholly or in part on the security $iven. he court shall% after due notice and hearin$% order the dischar$e of the attach#ent if the #ovant #a@es a cash deposit% or files a counter2"ond e9ecuted to the attachin$ party with the cler@ of the court where the application is #ade% in an a#ount e-ual to that fi9ed "y the court in the order of attach#ent% e9clusive of costs. :ut if the attach#ent is sou$ht to "e dischar$ed with respect to a particular property% the counter2"ond shall "e e-ual to the value of that property as deter#ined "y the court. *n either case% the cash deposit or the counter2 "ond shall secure the pay#ent of any !ud$#ent that the attachin$ party #ay recover in the action. A notice of the deposit shall forth with "e served on the attachin$ party. Bpon the dischar$e of an attach#ent in accordance with the provisions of this section% the property attached% or the proceeds of any sale thereof% shall "e delivered to the party #a@in$ the deposit or $ivin$ the counter2"ond% or to the person appearin$ on his "ehalf% the deposit or counter2"ond aforesaid standin$ in place of the property so released. Should such counter2"ond for any reason to "e found to "e or "eco#e insufficient% and the party furnishin$ the sa#e fail to file an additional counter2"ond% the

*f the property attached is clai#ed "y any person other than the party a$ainst who# attach#ent had "een issued or his a$ent% and a. such person #a@es an &&id #it o& +is tit!e t+ereto, or ri$+t to t+e possession t+ereo&% statin$ the $rounds of such ri$ht or title% and ". ser#es suc+ &&id #it upon t+e s+eri&& while the latter has possession of the attached party% and a copy thereof upon the attachin$ party% the sheriff shall not "e "ound to @eep the property under attach#ent% unless the attachin$ party or his a$ent% on de#and of the sheriff% shall file a %ond approved "y the court to inde#nify the third2party clai#ant in a su# not less than the value of the property levied upon. *n case of disa$ree#ent as to such value% the sa#e shall "e decided "y the court issuin$ the writ of attach#ent. No clai# for da#a$es for the ta@in$ or @eepin$ of the property #ay "e enforced a$ainst the "ond unless the action therefor is filed "it+in one +undred t"enty ./160 d ys &ro' t+e d te o& t+e &i!in$ o& t+e %ond. he sheriff shall not "e lia"le for da#a$es for the ta@in$ or @eepin$ of such property% to any such third2party clai#ant% if such "ond shall "e filed. Nothin$ herein contained shall prevent such clai#ant or any third person fro# #indic tin$ +is c! i' to t+e property% or pre#ent t+e tt c+in$ p rty &ro' c! i'in$ d ' $es $ inst t+irdAp rty c! i' nt "+o &i!ed &ri#o!ous or p! in!y spurious c! i', in t+e s 'e or sep r te ction. 6hen the writ of attach#ent is issued in favor of the Repu"lic of the Philippines% or any officer duly representin$ it% the filin$ of such "ond shall not "e re-uired% and in case the sheriff is sued for da#a$es as a result of the attach#ent% he shall "e represented "y the Solicitor 'eneral% and if held lia"le therefor% the actual da#a$es ad!ud$ed "y the court shall "e paid "y the National reasurer out of the funds to "e appropriated for the purpose. (Sec. 13% Rule ;7+

Satisfaction of !ud$#ent out of property attachedK return of sheriff.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 I& *ud$'ent %e reco#ered %y t+e tt c+in$ p rty nd e)ecution issue t+ereon% the sheriff #ay cause the !ud$#ent to "e satisfied out of the property attached% if it "e sufficient for that purpose in the followin$ #anner< (a+ :y payin$ to the !ud$#ent o"li$ee the proceeds o& !! s !es o& peris+ %!e or ot+er property so!d in pursuance of the order of the court% or so #uch as shall "e necessary to satisfy the !ud$#entK ("+ *f any "alance re#ains due% %y se!!in$ so 'uc+ o& t+e property, re ! or person !, s ' y %e necess ry to s tis&y t+e % ! nce, if enou$h for that purpose re#ain in the sheriffTs hands% or in those of the cler@ of the courtK (c+ :y co!!ectin$ &ro' !! persons + #in$ in t+eir possession credits %e!on$in$ to t+e *ud$'ent o%!i$or, or o"in$ de%ts to t+e ! tter t t+e ti'e o& t+e tt c+'ent o& suc+ credits or de%ts % the a#ount of such credits and de"ts as deter#ine "y the court in the action% and stated in the !ud$#ent% and payin$ the proceeds of such collection over to the !ud$#ent o"li$ee. (Sec. 1;% Rule ;7+ he sheriff shall forthwith #a@e a return in writin$ to the court of his proceedin$s under this section and furnish the parties with copies thereof. (Sec. 1;% Rule ;7+

JONATHAN T5 PAMPOLINA received "y the sheriff% under the order of attach#ent% and all property attached re#ainin$ in any such officerTs hands% s+ !! %e de!i#ered to t+e p rty $ inst "+o' tt c+'ent " s issued, nd t+e order o& tt c+'ent disc+ r$ed. (Sec. 19% Rule ;7+

Clai# for da#a$es on account of i#proper% irre$ular or e9cessive attach#ent.
An application for d ' $es on ccount o& i'proper, irre$u! r or e)cessi#e tt c+'ent #ust "e filed "efore the trial or "efore the trial or "efore appeal is perfected or "efore the !ud$#ent "eco#es e9ecutory% with due notice to the attachin$ party and his surety or sureties% settin$ forth the facts showin$ his ri$ht to da#a$es and the a#ount thereof. Such da#a$es #ay "e awarded only after proper hearin$ and shall "e included in the !ud$#ent on the #ain case. *f the !ud$#ent of the appellate court "e favora"le to the party a$ainst who# the attach#ent was issued% he #ust clai# da#a$es sustained durin$ the pendency of the appeal "y filin$ an application in the appellate court% with notice to the party in whose favor the attach#ent was issued or his surety or sureties% "efore the !ud$#ent of the appellate court "eco#es e9ecutory. he appellate court #ay allow the application to "e heard and decided "y the trial court. Nothin$ herein contained shall prevent the party a$ainst who# the attach#ent was issued fro# recoverin$ in the sa#e action the da#a$es awarded to hi# fro# any property of the attachin$ party not e9e#pt fro# e9ecution should the "ond or deposit $iven "y the latter "e insufficient or fail to fully satisfy the award. (Sec. &/% Rule ;7+

:alance due collected upon an e9ecutionK e9cess delivered to !ud$#ent o"li$or.
After reali8in$ upon all the property attached% includin$ the proceed of any de"ts or credits collected% and applyin$ the proceeds to the satisfaction of the !ud$#ent% less the e9penses of proceedin$s upon the !ud$#ent% ny % ! nce s+ !! re' in due, t+e s+eri&& 'ust proceed to co!!ect suc+ % ! nce s upon ordin ry e)ecution. 6henever the !ud$#ent shall have "een paid% the sheriff% upon reasona"le de#and% 'ust return to t+e *ud$'ent o%!i$or t+e tt c+ed property re' inin$ in +is + nds, nd ny proceeds o& t+e s !e o& t+e property tt c+ed not pp!ied to t+e *ud$'ent . (Sec. 1.% Rule ;7+

Re$ ! do Notes. =nly the plaintiff can as@ for a preli#inary attach#ent. rue or Calse. Calse. Bnder the Rules% any party% not only the plaintiff can avail of preli#inary attach#ent as lon$ as any of the $rounds therefore e9ist. A defendant on his counterclai#% a co2party on his cross2clai#% and a third party plaintiff on his third2 party clai# #ay #ove for the issuance of the writ. Can a party as@ for preli#inary attach#ent after entry of !ud$#ent> No. 6here the !ud$#ent is already final and e9ecutory% a #otion for e9ecution is the proper re#edy. he property of a forei$n corporation duly licensed to do "usiness in the Philippines can "e attached "ased solely on the $round of "ein$ a forei$n corporation. rue or Calse. Calse. A forei$n corporation duly licensed to do "usiness in the Philippines is N= A N=N2 R1S*,1N within the #eanin$ of Sec. 1 (f+% Rule ;7% hence% its property here #ay not "e attached on the #ere $round that its is a non2resident. he authori8ation for the issuance of a writ of attach#ent a$ainst a non2resident defendant does not apply to

Recovery upon the counter2"ond.
6hen the !ud$#ent has "eco#e e9ecutory% the surety or sureties on any counter2"ond $iven pursuant to the provisions of this Rule to secure the pay#ent of the !ud$#ent shall "eco#e char$ed on such counter2"ond and "ound to pay the !ud$#ent o"li$ee upon de#and the a#ount due under the !ud$#ent% which a#ount #ay "e recovered fro# such surety or sureties after notice and su##ary hearin$ in the sa#e action. (Sec. 17% Rule ;7+

,isposition of #oney deposited.
6here the party a$ainst who# attach#ent had "een issued + s deposited 'oney inste d o& $i#in$ counterA%ond% it shall "e applied under the direction of the court to the satisfaction of any !ud$#ent rendered in favor of the attachin$ party% and &ter s tis&yin$ t+e *ud$'ent t+e % ! nce s+ !! %e rendered to t+e depositor or +is ssi$nee . *f the !ud$#ent is in favor of the party a$ainst who# attach#ent was issued% t+e "+o!e su' deposited 'ust %e re&unded to +i' or +is ssi$nee . (Sec. 18% Rule ;7+

,isposition of attached property where !ud$#ent is for party a$ainst who# attach#ent was issued.
*f !ud$#ent "e rendered a$ainst the attachin$ party% all the proceeds of sales and #oney collected or

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA

corporations "ut to natural persons only. (Claude Neon 5i$hts v. Phil. Advertisin$ Corp.% ;7 Phil. ./7+ *s the insolvency of the defendant de"tor a $round for issuance of a writ of preli#inary attach#ent> No. (A"oiti8 W Co.% *nc. v. Prov. Sheriff% 52 0;99/% 17 June 1981+ 6hat are the two for#s of attach#ent> 1. Re$ular for# of attach#ent refers to corpore ! property in the possession of the party. &. 'arnish#ent refers to #oney% stoc@s% credits and other incorpore ! property which "elon$s to the party "ut is in the possession or under the control of a third person. 6hat is $arnish#ent> 'arnish#ent is a species of attach#ent for reachin$ the property or credits pertainin$ or paya"le to a !ud$#ent de"tor. *t results in a forced novation "y the su"stitution of creditors% that is% the !ud$#ent de"tor who is the ori$inal creditor of the $arnishee is% throu$h service of the writ of $arnish#ent% su"stituted "y the !ud$#ent creditor who there"y "eco#es the creditor of the $arnishee. 6hat is the purpose of preli#inary attach#ent> 1. o sei8e the property of the de"tor in advance of final !ud$#ent and to hold it for purposes of satisfyin$ the said !ud$#ent &. o ena"le the court to ac-uire !urisdiction over the action "y the actial or constructive sei8ure of the property in those instances where personal service of su##ons on the creditor cannot "e affected. (4a"una$ v. 'alli#ore% 81 Phil. 0;3+ *s there a difference "etween the order of preli#inary attach#ent and the writ of preli#inary attach#ent> Ges. he order can "e si$ned only "y the !ud$e hi#self. he order is "ased on the #otion filed therefore and any opposition thereto and #ay or #ay not contain the specific details "ut only the nature of the acts desired "y the court. An i#ple#entin$ writ #ay "e s$ned and issued either "y the cler@ of court or the presidin$ !ud$e. he writ shall "e "ased on the order and shall contain the details re-uired "y the latter or the provisions of the law or Rules $overnin$ the sa#e. *s notice and hearin$ re-uired for preli#inary attach#ent> No. A writ of preli#inary attach#ent #ay "e sou$ht and issued e9 parte. No notice to the adverse party is re-uired% as the ti#e which the hearin$ will entail could "e enou$h to ena"le the defendant to a"scond or dispose of his property "efore the writ of preli#inary attach#ent issues. 6hat are the re-uisites for the issuance of the writ of preli#inary attach#ent>

he only re-uisites for the issuance of the writ are the affidavit and "ond of the applicant. 6hat property is e9e#pt attach#ent or $arnish#ent> Property e9e#pt fro# e9e#pt fro# preli#inary $arnish#ent. fro# preli#inary

e9ecution is also attach#ent or

6hat is the effect of an affidavit that lac@s one of the alle$ations in Sec. 0% Rule ;7> Cor a writ of attach#ent to "e valid% the affidavit filed therefor #ust contain all the allea$ations re-uired. Cailure to do so renders the writ totally defective as the !ud$e issuin$ the writ acts in e9cess of !urisdiction. (J.=. 'las Consturction v. )alen8uela% 52387;.% 11 Septe#"er 198&+ *f the o"li$ation under liti$ation is duly secured "y a R14% "ut the #ort$a$ee% instead of foreclosin$ the property% filed an ordinary action to recover the su# of #oney involved% can the #ort$a$ee apply for a writ of preli#inary attach#ent> No. 4ort$a$ee is not entitled to a writ of preli#inary attache#ent% since Sec. 0 of Rule ;7 authori8es the sa#e only if there is N= = 71R SBCC*C*1N S1CBR* G for the plaintiffAs clai#. (Sal$ado v. CA% 'R No. ;;081% &. 4arch 1983+ 6hat are the three sta$es of $rantin$ the provisional re#edy of attach#ent> 1. he court issues the order $rantin$ the application. &. he writ of preli#inary attach#ent issues pursuant to the order $rantin$ the sa#e. 0. he writ is i#ple#ented. *s it necessary that !urisdiction over the person of the defendant "e first o"tained> No. Jurisdiction over the defendant is not necessary durin$ the first two sta$es (order of the court and issuance of the writ+. 7owever% once the i#ple#entation co##ences% the court #ust have ac-uired !urisdiction over the defendant% otherwise the court has not power and authority to act in any #anner a$ainst or "ind the defendant. (Cuartero v. CA% '.R. No. 1/&338 0 Au$ust 199&+ 6hat is the purpose of the "ond posted "y the attachin$ creditor> he "ond posted "y the attachin$ creditor responds for the da#a$es and accosts which #ay "e ad!ud$ed to the adverse party arisin$ fro# and "y reason of the attach#ent. Conse-uently% there #ust "e a findin$ the decision of the court i#posin$ such lia"ilityand the costs shall only "r those arisin$ fro# the attach#ent itself and not the other !udicial costs that #ay "e i#posed a$ainst the losin$ party. (Rocco v. 4eads% 9. Phil. 88;+ 'enerally% the lia"ility on the attach#ent "ond provided for in this section is li#ited to actual

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA

da#a$es% "ut #oral and e9e#plary da#a$es #ay "e recovered where the attach#ent was alle$ed and proved to "e #alicious. 6hat is the purpose of an attachin$ de"torAs counter "ond> he counter "ond posted for the dischar$e of attach#ent responds for the pay#ent of the !ud$#ent recovered "y the attachin$ creditor% re$ardless of the wordin$s of the "ond. he plaintiff succeeds attachin$ the P1/4 house and lot of defendant for a de"t a#ountin$ only to P&.;4. Can the defendant as@ that his car worth P04 "e su"stituted instead> No. here is no rule allowin$ su"stitution of attached property. Althou$h an attach#ent #ay "e dischar$ed wholly or in part upon the security of a counter2"ond offered "y the defendant upon application to the court% with notice to and after hearin$ the attachin$ creditor. *f the attach#ent is e9cessive% the re#edy of the defendant is to apply for the court for a reduction or partial dischar$e and su"stitution of the attached properties. =therwise% the lien ac-uired "y the plaintiff creditor as of the date of the ori$inal levy would "e lost and this would% in effect% constitute a deprivation without due process of law of the attachin$ creditorAs interest in the attached property as security for the satisfaction of the !ud$#ent which he #ay o"tain. (Santos v. A-uino% Jr.% '.R. No. 8.18128&% 01 January 199&+ Are the $oods i#ported into the country "y the defendant2de"tor% "ut su"!ect to the possession of the Collector of Custo#s and "efore duties have "een paid% su"!ect to attach#ent> No. he custo#s authorities have e9clusive !urisdiction of the $oods and such writ of attach#ent would constitute the Collector of Custo#s as "ailee over said $oods% a duty inco#pati"le with his duties under the ariff and Custo#s Code. ()irata v. A-uino% 520;/&7% 1/ Septe#"er 1978+. :etween an attachin$ creditor and a prior #ort$a$ee over the attached property% who has a "etter ri$ht to the property> 6here the property attached "y the !ud$#ent creditor has "een previously #ort$a$ed% the !ud$#ent creditorAs lien if inferior to that of the #ort$a$ee which #ust first "e satisfied in the event of foreclosure. *n reality% what was attached "y the !ud$#ent creditor was #erely the !ud$#ent creditorAs ri$ht or e-uity of rede#ption. ( op Rate *nternational Service% *nc.% v. *AC% 'R. .739.% 7 July 198.+ *s it necessary that the $arnishee "e served with su##ons in order that the C #ay ac-uire !urisdiction to "ind hi#> No. 'arnishee need not also "e i#pleaded as a party to the case. All that is necessary is the

service upon hi# of the writ of $arnish#ent% as a conse-uence of which he "eco#es a virtual party or a forced intervenor in the case and the C there"y ac-uires !urisdiction to re-uire co#pliance "y hi# with all its orders and processes. (Perla Co#pania de Se$uros% *nc.% v. Ra#olete% '.R. No. ./883% 10 Nove#"er 1991+ Bnder Sec. 1/ of Rule ;7% the e9a#ination of party whose property is attached is properly only when the writ of preli#inary attach#ent is returned unsatisfied. rue or Calse. Calse. he e9a#ination under Rule ;7% unli@e e9a#inations under e9ecution of !ud$#ents (Rule 09+% is not su"!ect to a preli#inary condition "ut is anticipatory in nature and #ay "e resorted to even if the writ of attach#ent was not returned "ecause no property could "e found to "e levied upon thereunder. =f course% if the attachin$ party has succeeded in locatin$ property of the adverse party sufficient for purposes of the property levy% it would "e unnecessary for hi# to resort to the e9a#ination conte#plated in Sec. 1/% Rule ;7. Can the $arnishee refuse to su"#it to e9a#ination under Sec. 1/% Rule ;7> Ges. he court which issued the writ of attach#ent cannot co#pel the $arnishee to appear "efore it for e9a#ination as Sec. 1/ of Rule ;7 applies only where the $arnishee ad#its havin$ in his possession property "elon$in$ to the defendant. (41RA5C= v. 'en"ancor ,ev. Corp% 52317;.% 0/ July 197.+. *f the $arnishee does not ad#it the inde"tedness or he clai#s the property% the controversy #ust "e deter#ined in an independent action. (:urca Corp.% v. 4acadae$% 83 Phil. 390+ he attachin$ creditor #ay% however% resort to #odes of discovery. 6hen will a preli#inary attach#ent "e dischar$ed> A preli#nary attach#ent shall "e dischar$ed when it is esta"lished that< a. he de"tor has posted a counter "ond or has #ade the re-uisite cash deposit ". he attach#ent was i#properly or irre$ularly issued as hwere there is no $round for attach#ent% or the affidavit andVor "ond filed therefor was defective or insufficient. c. he attach#ent is e9cessive% "ut the dischar$e shall "e li#ited to the e9cess d. he property attached is e9e#pt fro# e9ecution% hence e9e#pt fro# preli#inary attach#ent. e. he !ud$#ent is rendered a$ainst the attachin$ creditor. Can there "e an e9 parte dischar$e of the attach#ent> No. 6here the attach#ent is challen$ed for havin$ "een ille$ally or i#properly issued% there #ust "e a hearin$% with the "urden of proof to

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA

sustain the writ "ein$ on the attachin$ creditor. (Cilinvest Credit Corp.% v. Relova+ Are the #erits of the co#plaint tria"le in a #otion to dischar$e an attach#ent> No. he #erits of the co#plaint are not tria"le in a #otion to dischar$e an attach#ent% otherwise an applicant for the dissolution of the writ could force a trial on the #erits of the case on the stren$th alone of such #otion. (Consolidated :an@ and rust Corp.% v. CA% '.R. No. 83;88% &9 4ay 1991+ 6hen the preli#inary attach#ent is issued upon a $round which also constitutes the applicantAs cause of action% such as an action for #oney or property e#"e88led or fraudulently converted "y the defendant% he is not allowed to #ove for the dissolution of the attach#ent under Sec. 10 of Rule ;7 "y offerin$ the falsity of the aver#ents in the applicantAs #otion and supportin$ docu#ents since the hearin$ on that #otion for dissolution would "e tanta#ount to a trial on the #erits in the #ain action. (Chuidian v. Sandi$an"ayan% '.R. No. 109931% 19 January &///+ A third party clai#in$ an interest in the attached property can file a separate action to vindicate his interest. rue or Calse. rue. 6here the property of a defendant has "een attached% a third party clai#in$ an interest therein can #aintain a separate action to vindicate his interest over the property and the in!unctive relief $ranted in the latter case does N= constitute an interference with the writ of attach#ent issued "y the other court. ( raders Royal :an@ v. *AC% '.R. No. ..0&1% 01 =cto"er 1983+ *n a case where a counter "ond was filed a$ainst the attach#ent of the property% what is the effect if a su"se-uent writ of e9ecution of a final !ud$#ent is returned unsatisfied> he lia"ility of the counter "ond auto#atically attaches without the need for the plaintiff to file a supple#ental pleadin$ to clai# pay#ent fro# the surety. ()an$uard Assurance Corp.% v. CA% 52&;9&1% &7 4ay 197;+. *f !ud$#ent was rendered a$ainst the attachin$ creditor "ut he proves that he acted in $ood faith in procurin$ such preli#inary attach#ent% then the adverse party cannot recover on the attach#ent "ond. rue or Calse. rue. (:an-ue 'eneral :el$e v. :ull W Co.% 83 Phil. 1.3.+ Can the attachin$ creditor as@ for da#a$es for the attach#ent even on appeal> Ges. *f the case is appealed and the !ud$#ent of the appellate court is in favor of the party whose property was attached% he can as@ for da#a$es sustained "y hi# durin$ the pendency of the appeal "y filin$ a #otion in the appellate court at

any ti#e "efore such !ud$#ent on appeal "eco#es e9ecutory. (5uneta 4otor Co.% v. 4enende8% 117 Phil. 97/+ :ut if he did not apply for da#a$es in the trial court% he cannot as@ for da#a$es durin$ the pendency of the trial "y #otion in the appellat court. Can the attachin$ de"tor clai# for da#a$es in a separate action> No. he clai# for da#a$es a$ainst the "ond in an alle$ed wron$ful attach#ent can only "e sou$ht in the sa#e court where the "ond was filed and the attach#ent was issued. he procedure for clai#in$ da#a$es outlined in Sec. &/ of Rule ;7 is 1OC5BS*)1% hence such clai#s for da#a$es cannot "e the su"!ect of an independent action. 1OC1P *=NS< 1. 6here the principal case was dis#issed for lac@ of !urisdiction "y the C without $ivin$ opportunity to the party whose property was attached to apply for and prove his clai# for da#a$es% and &. 6here the da#a$es "y reason of the attach#ent was sustained "y a third person who was not a party to the action wherein such writ was issued. 9 utist Notes

6hat is the difference "etween attach#ent and $arnish#ent> Attach#ent usually refers to property "ein$ levied upon or "ein$ ta@en into actual custody of the sheriffs. 'arnish#ent is a notice of se-uestration. Can attach#ent "e $ranted for unli-uidated da#a$es> No. 6here the clai# is for unli-uidated da#a$es% an attach#ent #ay not properly issue "ecause then the applicant cannot swear that the a#ount due to hi# is as #uch as the su# for which the order is $ranted a"ove all le$al counterclai#s. (Pere$rina v. Panis% 100 SCRA 7&+ *n a foreclosure suit% can property not su"!ect of #ort$a$e "e su"!ect of attach#ent> Ges. *n an action to foreclose a R14% property not covered "y the #ort$a$e #ay "e attached upon a showin$ that the #ort$a$ed property is insufficient to cover the de"t. (Reyes v. CC*% ;; Phil. 31/+ Classification of Attach#ents.
According to Availaibility and Effects A. Preli#inary 2 Resorted to at the co##ence#ent of the action or at any ti#e "efore entry of !ud$#ent 2 4erely te#porary. :. Cinal 2 Availa"le after the !ud$#ent in the #ain action has "eco#e e9ecutory 2 Cor the satisfaction of a !ud$#ent% also @nown as levy upon e9ecution.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 According to Form and Procedure of Enforcement A. Re$ular 2 Attach#ent of corporeal property in the possession of the party :. 'arnish#ent 2 Attach#ent of #oney% stoc@s% credits% and other incorporeal property which "elon$s to the party "ut is in the possession or under the control of a third person.

JONATHAN T5 PAMPOLINA

property first. *n contrast with e9ecution under Sec. 8% Rule 09% there is no order as to what property should first "e attached. 4otion to Set AsideV ,ischar$e Attach#ent
6ho files> 6hen filed> Party whose property has "een ordered attached. 6hile the action is pendin$% "efore or after levy% or even after release of the attached property. 1. he de"tor has posed a counter2"ond or has #ade the re-uisite cash deposit &. he writ of attach#ent was i#properly or irre$ularly issued 0. he writ of attach#ent was i#properly or irre$ularly enforced 3. he "ond is insufficient ;. he attach#ent is e9cessive (Note< the dischar$e shall "e li#ited to the e9cess only+ .. he property attached is e9e#pt fro# e9ecution and preli#inary attach#ent 7. he !ud$#ent is rendered a$ainst the attachin$ creditor.

4odes of Attachin$ Property
Aind o! Propert" Real Property% or standin$ crops thereon or any interest therein Mode o! Attachment 2 Cile a copy of the order with the Re$ister of ,eeds% to$ether with a description of the property attached% and a notice that it is attached. 2 5eave a copy of such order% description and notice with the occupant of the property% if any% or with such other person or his a$ent if found within the province. 2 :y ta@in$ and safely @eepin$ it in sheriffAs custody and issuin$ the correspondin$ receipt. 2 :y leavin$ with the President or #ana$in$ a$ent thereof% a copy of the writ and a notice statin$ that the stoc@ or interest is attached in pursuance of the writ 2 :y leavin$ with the de"tor% or person havin$ possession or control of the credits or other personal property% or his a$ent a copy of the writ% and the proper notice. 2 :y servin$ the e9ecutor or ad#inistrator or other personal representative of the decedent with a copt of the writ and notice. 2 :y filin$ a copy of the writ and notice with the cler@ of court in which the estate is "ein$ settled 2 :y servin$ copies of the writ and notice upon the heir% le$atee or devisee concerned. 2 :y filin$ a copy of the writ with the proper court or -uasi2!udicial a$ency 2 :y servin$ a notice of attach#ent upon the custodian of the property. 'rounds filin$> for

Personal Property capa"le of #anual delivery Stoc@s or shares of any corporation or co#pany or an interest therein. ,e"ts and credits and other personal property not capa"le of #anual delivery. *nterest in property "elon$in$ to the estate of a decedent

Property in custodia le$is

6hat are the three "onds involved in a preli#inary attach#ent> 1. App!ic ntNs 9ond .Att c+'ent 9ond0 2 he a#ount is "ased on the a#ount dues or the value of the property. 2 *t is conditioned on the fact that the applicant will pay all the costs which #ay "e ad!ud$ed to the adverse party and all da#a$es which he #ay sustain "y reason of the attach#ent% if the court finally ad!ud$e that the applicant was not entitled thereto. 2 Cor the adverse party to collect actual da#a$es% $ood faith is irrelevant. Cor the adverse party to collect #oral da#a$es% the party #sut alle$e "ad faith. 2 Recovery a$ainst the attach#ent "ond #ust "e filed "efore trial% "efore the appeal is perfected or "efore the !ud$#ent "eco#es e9ecutory. ( he ti#e is li#ited "ecause the issue is 6=N the adverse party or creditor is entitled to attach#ent.+ &. Counter 9ond 2 he a#ount is "ased on the value of the property. 2 he value of the property is deter#ined "y affidavits. *t is not conclusive. So in case of disa$ree#ent as to the value% it will "e decided "y the court. 2 he counter"ond is lia"le if !ud$#ent is rendered in favor of the attachin$ creditor and the !ud$#ent cannot "e satisfied. 2 he $eneral rule is that the plaintiff2creditor #ust file a clai# a$ainst the counter"ond in the sa#e action. 1OC1P *=N< *f the #ain action is dis#issed for lac@ of !urisdiction or i#proper venue. 0. S+eri&&Ns 9ond .Inde'nity 9ond0 2 he sheriffAs "ond is filed "y the plaintiff. 2 he a#ount is "ased on the value of the property. 2 he value of the property is deter#ined "y affidavits. *t is not conclusive. So in case of

An overdraft is an acco##odation "y a "an@% and is si#ilar to a loan. Can the attachin$ creditor attach an overdraft> No. An overdraft account is not a credit in favor of the !ud$#ent de"tor% "ecause the latter% supposin$ he will ever avail hi#self thereto% will "eco#e a de"tor instead of a creditor. Attachin$ an overdraft would "e tanta#ount to co#pellin$ a person% "y !udicial process% to "orrow funds with which to pay his !ud$#ent creditor. (Nava v. San Jose% 5209/;% 01 =cto"er 19;1+ ,efendant has a :en8% a Cortuner% and an 19pedition. Can the plaintiff tell the sheriff which to ta@e> he attach#ent de"tor cannot direct the sheriff as to what properties to attach first% neither is there any re-uire#ent in the rules to attach personal

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA

disa$ree#ent as to the value% it will "e decided "y the court. 2 he "ond answers for da#a$es which 0 rd parties #ay suffer when the sheriff does not re2deliver the property to the#. PR=:514< Plaintiff attaches and levies property. he counter"ond is filed. rial ensures. At the end% !ud$#ent is rendered in favor of the plaintiff. Plaintiff2creditor recovers a$ainst the counter "ond% even if the !ud$#ent is final and e9ecutory. ,efendant de"tor ar$ues that the plaintiff creditor cannot recover a$ainst the counter "ond since the !ud$#ent is now final and e9ecutory% relyin$ on Sec. &/% Rule ;7. Rule. ANS61R< he plaintiff creditor can recover a$ainst the counter"ond even if it is final and e9ecutory. Sec. &/% Rule ;7 refers to recovery a$ainst the attach#ent "ond and not a$ainst the counter "ond. (See Sec. 17% Rule ;7+ PR=:514< After the trial% the !ud$#ent is rendered in favor of the plaintiff. he defendant files a notice of appeal. Can the plaintiff recover on the counter "ond pendin$ appeal> ANS61R< Ges% since the rules does not distin$uish if appeal is pendin$ or not for as lon$ as the !ud$#ent is unsatisfied. PR=:514< R C ?C rules in favor of the plaintiff. A writ of e9ecution is issued. he sheriff sees that the defendant has property in Pasi$. he defendant $ets an in!unction fro# R C Pasi$ to prevent the sheriff fro# levyin$ on the property. *s this allowed> ANS61R< Ges% this is allowed. his is not interference "y R C Pasi$. R C Pasi$ is #erely tellin$ the sheriff not to levy on that property in Pasi$. *t is not interferin$ with the !ud$#ent of R C ?C itself. (4anila 7erald Pu"lishin$ v. Ra#os+ 6hat are the re#edies of a third party clai#ant in cases of attach#ent> 1. hird Party Clai#% under Sec. 13% Rule ;7 &. Reinvindicatory Action D action to recover title to the property. 0. ,a#a$es D recover a$ainst the inde#nity or sheriffAs "ond within 1&/ days fro# the date of the filin$ of the "ond. 3. Cancel Annotation D if attach#ent is levied on real property% he #ay file a petition in land re$istration court for the deletion of the annotation under the property Re$istration ,ecree on the $round that the annotation was #ade throu$fh error or #ista@e or fraud. ;. *ntervention D intervention is not availa"le in e9ecution. S hese re#edies are cu#ulative (not #utually e9clusive+. 7owever% the 0 rd party clai#ant cannot recover twice.

6hat should "e included in the affidavit of a third party clai#ant under Sec. 13% Rule ;7> he third party clai#ant shold file an affidavit with the followin$ essential recitals< 1. hird party has a ri$ht to the possession &. he $rounds for such ri$ht. 0. Adverse party has no clai# to property. 6here should the affidavit of the third party clai#ant "e filed> 6ith the sheriff. he sheriff will% then% serve to the party attach#ent creditor% with notice that if attach#ent creditor does not $ive a "ond% the officer shall relin-uish possession of the property. Bpon denial of his third party clai#% can the third party clai#ant file Rule .; certiorari a$ainst such denial> No. he re#edy of the third party clai#ant is to intervene in the action. A sues : to recover land% which accordin$ to A% he was defrauded "y : to sell. Can A attach this land> No. he plaintiff cannot attach property which he is clai#in$ to "e his or which is the su"!ect of the liti$ation.

4a"ana$ v. 'alle#ore State #ust ac-uire !urisdiction over the property. Cuartero v. CA C #ust ac-uire !urisdiction at the ti#e the writ is sou$ht to "e i#ple#ented.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA sala court% shall "e raffled only after notice to and in the presence of the adverse party or the person to "e en!oined. *n any event% such notice shall "e preceded% or conte#poraneously acco#panied% "y service of su##ons% to$ether with a copy of the co#plaint or initiatory pleadin$ and the applicantTs affidavit and "ond% upon the adverse party in the Philippines. 7owever% where the su##ons could not "e served personally or "y su"stituted service despite dili$ent efforts% or the adverse party is a resident of the Philippines te#porarily a"sent therefro# or is a nonresident thereof% the re-uire#ent of prior or conte#poraneous service of su##ons shall not apply. (d+ he application for a te#porary restrainin$ order shall thereafter "e acted upon on!y &ter !! p rties re +e rd in su'' ry +e rin$ "+ic+ s+ !! %e conducted "it+in t"entyA&our .130 +ours after the sheriffTs return of service andVor the records are received "y the "ranch selected "y raffle and to which the records shall "e trans#itted i##ediately. (Sec. 3% Rule ;8+

&. Preli#inary *n!unction (Rule ;8+ RB51 ;8 PR15*4*NARG *NJBNC *=N Preli#inary in!unction definedK classes.
A pre!i'in ry in*unction is an order $ranted at any sta$e of an action or proceedin$ prior to the !ud$#ent or final order% re-uirin$ a party or a court% a$ency or a person to refrain fro# a particular act or acts. *t #ay also re-uire the perfor#ance of a particular act or acts% in which case it shall "e @nown as a pre!i'in ry ' nd tory in*unction . (Sec. 1% Rule ;8+

6hen final in!unction $ranted.

*f after the trial of the action it appears that the applicant is entitled to have the act or acts co#plained of per#anently en!oined% the court shall $rant a final in!unction perpetually restrainin$ the party or person en!oined fro# the co##ission or continuance of the act or acts or confir#in$ the preli#inary #andatory in!unction. (Sec. 9% Rule ;8+

Preli#inary in!unction not $ranted without noticeK e9ception.

6ho #ay $rant preli#inary in!unction.
A preli#inary in!unction #ay "e $ranted "y the court where the action or proceedin$ is pendin$. *f the action or proceedin$ is pendin$ in the Court of Appeals or in the Supre#e Court% it #ay "e issued "y said court or any #e#"er thereof. (Sec. &% Rule ;8+

'rounds for issuance of preli#inary in!unction.

A preli#inary in!unction #ay "e $ranted when it is esta"lished< (a+ hat the applicant is entit!ed to t+e re!ie& de' nded% and the whole or part of such relief consists in restrainin$ the co##ission or continuance of the act or acts co#plained of% or in re-uirin$ the perfor#ance of an act or acts% either for a li#ited period or perpetuallyK ("+ hat the co##ission% continuance or non2perfor#ance of the act or acts co#plained of durin$ the liti$ation "ou!d pro% %!y "or( in*ustice to t+e pp!ic nt K or (c+ hat a party% court% a$ency or a person is doin$% threatenin$% or is atte#ptin$ to do% or is procurin$ or sufferin$ to "e done% so#e act or acts pro"a"ly in #io! tion o& t+e ri$+ts o& t+e pp!ic nt respectin$ t+e su%*ect o& t+e ction or proceedin$, nd tendin$ to render t+e *ud$'ent ine&&ectu !. (Sec. 0% Rule ;8+

)erified application and "ond for preli#inary in!unction or te#porary restrainin$ order.
A preli#inary in!unction or te#porary restrainin$ order #ay "e $ranted only when< (a+ he application in the action or proceedin$ is #eri&ied% and shows facts entitlin$ the applicant to the relief de#andedK and ("+ Bnless e9e#pted "y the court% the applicant files with the court where the action or proceedin$ is pendin$% a %ond e9ecuted to the party or person en!oined% in an a#ount to "e fi9ed "y the court% to the effect that the applicant will pay to such party or person all da#a$es which he #ay sustain "y reason of the in!unction or te#porary restrainin$ order if the court should finally decide that the applicant was not entitled thereto. Upon ppro# ! o& t+e re-uisite %ond, "rit o& pre!i'in ry in*unction s+ !! %e issued . (c+ 6hen an application for a writ of preli#inary in!unction or a te#porary restrainin$ order is included in a co#plaint or any initiatory pleadin$% the case% if filed in a #ultiple2

No preli#inary in!unction shall "e $ranted without +e rin$ nd prior notice to t+e p rty or person sou$+t to %e en*oined. *f it shall appear fro# facts shown "y affidavits or "y the verified application that $reat or irrepara"le in!ury would result to the applicant "efore the #atter can "e heard on notice% the court to which the application for preli#inary in!unction was #ade% ' y issue e) p rte te'por ry restr inin$ order to %e e&&ecti#e on!y &or period o& t"enty .160 d ys &ro' ser#ice on t+e p rty or person sou$+t to %e en*oined % e9cept as herein provided. 6ithin the said twenty2day period% the court #ust order said party or person to show cause% at a specified ti#e and place% why the in!unction should not "e $ranted% deter#ine within the sa#e period whether or not the preli#inary in!unction shall "e $ranted% and accordin$ly issue the correspondin$ order. 7owever% and su"!ect to the provisions of the precedin$ sections% if the #atter is of e9tre#e ur$ency and the applicant will suffer $rave in!ustice and irrepara"le in!ury% t+e e)ecuti#e *ud$e o& 'u!tip!eAs ! court or t+e presidin$ *ud$e o& sin$!eAs ! court ' y issue e) p rte te'por ry restr inin$ order e&&ecti#e &or on!y se#entyAt"o .E10 +ours &ro' issu nce "ut he shall i##ediately co#ply with the provisions of the ne9t precedin$ section as to service of su##ons and the docu#ents to "e served therewith. hereafter% within the aforesaid seventy2two (7&+ hours% the !ud$e "efore who# the case is pendin$ shall conduct a su'' ry +e rin$ to deter#ine whether the te#porary restrainin$ order shall "e e9tended until the application for preli#inary in!unction can "e heard. In no c se s+ !! t+e tot ! period o& e&&ecti#ity o& t+e te'por ry restr inin$ order e)ceed t"enty .160 d ys, inc!udin$ t+e ori$in ! se#entyAt"o +ours pro#ided +erein. *n the event that the application for preli#inary in!unction is denied or not resolved within the said period% the te#porary restrainin$ order is dee#ed auto#atically vacated. he effectivity of a te#porary restrainin$ order is not e)tendi%!e without need of any !udicial declaration to that effect and no court shall have authority to e9tend or renew the sa#e on the sa#e $round for which it was issued.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 7owever% if issued "y the Court of Appeals or a #e#"er thereof% the te#porary restrainin$ order shall "e effective for si9ty (./+ days fro# service on the party or person sou$ht to "e en!oined. A restrainin$ order issued "y the Supre#e Court or a #e#"er thereof shall "e effective until further orders. (Sec. ;% Rule ;8+

JONATHAN T5 PAMPOLINA *4P5141N A *=N AN, C=4P51 *=N =C '=)1RN41N *NCRAS RBC BR1 PR=J1C S :G PR=7*:* *N' 5=61R C=BR S CR=4 *SSB*N' 14P=RARG R1S RA*N*N' =R,1RS% PR15*4*NARG *NJBNC *=NS =R PR15*4*NARG 4AN,A =RG *NJBNC *=NS% PR=)*,*N' P1NA5 *1S C=R )*=5A *=NS 71R1=C% AN, C=R = 71R PBRP=S1S% which was approved "y the President on 7 Nove#"er &/// and pu"lished in the 11 Nove#"er &/// issues of he 4anila :ulletin and he 4alaya% newspapers of $eneral circulation in the Philippines. he law ta@es effect fifteen (1;+ days followin$ such pu"lication. Pertinent provisions of the Act read as follows< SECTION /. ,eclaration of Policy. U Article O**% Section . of the Constitution states that the use of property "ears a social function% and all econo#ic a$ents shall contri"ute to the co##on $ood. owards this end% the State shall ensure the e9peditious and efficient i#ple#entation and co#pletion of $overn#ent infrastructure pro!ects to avoid unnecessary increase in construction% #aintenance andVor repair costs and to i##ediately en!oy the social and econo#ic "enefits therefro#. SECTION 1. ,efinition of er#s. U (a+ INational $overn#ent pro!ectsI shall refer to all current and future national $overn#ent infrastructure% en$ineerin$ wor@s and service contracts% includin$ pro!ects underta@en "y $overn#ent2owned and 2controlled corporations% all pro!ects covered "y Repu"lic Act No. .9;7% as a#ended "y Repu"lic Act No. 7718% otherwise @nown as the :uild2=perate2and2 ransfer 5aw% and other related and necessary activities such as site ac-uisition% supply andVor installation of e-uip#ent and #aterials% i#ple#entation% construction% co#pletion% operation% #aintenance% i#prove#ent% repair and reha"ilitation% re$ardless of the source of fundin$. ("+ IService contractsI shall refer to infrastructure contracts entered into "y any depart#ent% office or a$ency of the national $overn#ent with private entities and non$overn#ent or$ani8ations for services related or incidental to the functions and operations of the depart#ent% office or a$ency concerned. SECTION 2. Prohi"ition on the *ssuance of e#porary Restrainin$ =rders% Preli#inary *n!unctions and Preli#inary 4andatory *n!unctions. U No court% e9cept the Supre#e Court% shall issue any te#porary restrainin$ order% preli#inary in!unction or preli#inary #andatory in!unction a$ainst the $overn#ent% or any of its su"divisions% officials or any person or entity% whether pu"lic or private% actin$ under the $overn#entTs direction% to restrain% prohi"it or co#pel the followin$ acts< (a+ Ac-uisition% clearance and develop#ent of the ri$ht2of2way andVor site or location of any national $overn#ent pro!ectK ("+ :iddin$ or awardin$ of contractVpro!ect of the national $overn#ent as defined under Section & hereofK (c+ Co##ence#ent% prosecution% e9ecution% i#ple#entation% operation of any such contract or pro!ectK (d+ er#ination or rescission of any such contractVpro!ectK and (e+ he underta@in$ or authori8ation of any other lawful activity necessary for such contractVpro!ect. his prohi"ition shall apply in all cases% disputes or controversies instituted "y a private party% includin$ "ut not li#ited to cases filed "y "idders or those clai#in$ to have ri$hts throu$h such "idders involvin$ such contractVpro!ect. his prohi"ition shall not apply when the #atter is of e9tre#e ur$ency involvin$ constitutional issue% such that unless a te#porary restrainin$ order is issued% $rave

'rounds for o"!ection to% or for #otion of dissolution of% in!unction or restrainin$ order.
he application for in!unction or restrainin$ order #ay "e denied% upon s+o"in$ o& its insu&&iciency . he in!unction or restrainin$ order #ay also "e denied% or% if $ranted% #ay "e dissolved% on ot+er $rounds upon &&id #its o& t+e p rty or person en*oined, "+ic+ ' y %e opposed %y t+e pp!ic nt !so %y &&id #its . *t #ay further "e denied% or% if $ranted% #ay "e dissolved% if it appears after hearin$ that althou$h the applicant is entitled to the in!unction or restrainin$ order% t+e issu nce or continu nce t+ereo&, s t+e c se ' y %e, "ou!d c use irrep r %!e d ' $e to t+e p rty or person en*oined "+i!e t+e pp!ic nt c n %e &u!!y co'pens ted &or suc+ d ' $es s +e ' y su&&er % and the for#er files a %ond in an a#ount fi9ed "y the court conditioned that he will pay all da#a$es which the applicant #ay suffer "y the denial or the dissolution of the in!unction or restrainin$ order. *f it appears that the e9tent of the preli#inary in!unction or restrainin$ order $ranted is too $reat% it #ay "e #odified. (Sec. .% Rule ;8+

Service of copies of "ondsK effect of disapproval of sa#e.
he party filin$ a "ond in accordance with the provisions of this Rule shall forthwith serve a copy of such "ond on the other party% who #ay e9cept to the sufficiency of the "ond% or of the surety or sureties thereon. *f the applicantTs "ond is found to "e insufficient in a#ount% or if the surety or sureties thereon fail to !ustify% and a "ond sufficient in a#ount with sufficient sureties approved after !ustification is not filed forthwith% the in!unction shall "e dissolved. *f the "ond of the adverse party is found to "e insufficient in a#ount% or the surety or sureties thereon fail to !ustify a "ond sufficient in a#ount with sufficient sureties approved after !ustification is not filed forthwith% the in!unction shall "e $ranted or restored% as the case #ay "e. (Sec. 7% Rule ;8+

Jud$#ent to include da#a$es a$ainst party and sureties.
At the trial% the a#ount of da#a$es to "e awarded to either party% upon the "ond of the adverse party% shall "e clai#ed% ascertained% and awarded under the sa#e procedure prescri"ed in section &/ of Rule ;7. (Sec. 8% Rule ;8+

SUPRECE COURT ADCINISTRATIVE CIRCULAR NO. //A66

= < Jud$es of 5ower Courts R1 < :an on the *ssuance of e#porary Restrainin$ =rders or 6rits of Preli#inary Prohi"itory or 4andatory *n!unctions in Cases *nvolvin$ 'overn#ent *nfrastructure Pro!ects Gour attention is invited to Repu"lic Act No. 897;% entitled AN AC = 1NSBR1 71 1OP1,* *=BS

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 in!ustice and irrepara"le in!ury will arise. he applicant shall file a "ond% in an a#ount to "e fi9ed "y the court% which "ond shall accrue in favor of the $overn#ent if the court should finally decide that the applicant was not entitled to the relief sou$ht. *f after due hearin$ the court finds that the award of the contract is null and void% the court #ay% if appropriate under the circu#stances% award the contract to the -ualified and winnin$ "idder or order a re"iddin$ of the sa#e% without pre!udice to any lia"ility that the $uilty party #ay incur under e9istin$ laws. SECTION 3. Nullity of 6rits and =rders. U Any te#porary restrainin$ order% preli#inary in!unction or preli#inary #andatory in!unction issued in violation of Section 0 hereof is void and of no force and effect. SECTION 4. ,esi$nation of Re$ional rial Courts. U he Supre#e Court #ay desi$nate re$ional trial courts to act as co##issioners with the sole function of receivin$ facts of the case involvin$ ac-uisition clearance and develop#ent of ri$ht2of2way for $overn#ent infrastructure pro!ects. he desi$nated re$ional trial court shall within thirty (0/+ days fro# the date of receipt of the referral% forward its findin$s of facts to the Supre#e Court for appropriate action. SECTION 5. Penal Sanction. U *n addition to any civil and cri#inal lia"ilities he or she #ay incur under e9istin$ laws% any !ud$e who shall issue a te#porary restrainin$ order% preli#inary in!unction or preli#inary #andatory in!unction in violation of Section 0 hereof% shall suffer the penalty of suspension of at least si9ty (./+ days without pay. Please "e $uided accordin$ly. he Court Ad#inistrator shall i##ediately disse#inate copies of this Ad#inistrative Circular to all lower court Jud$es and see to it that they strictly co#ply with the law. *ssued this 10th day of Nove#"er &///.

JONATHAN T5 PAMPOLINA or a #inin$% fishery% forest or other natural resource develop#ent pro!ect of the $overn#ent% or any pu"lic utility operated "y the $overn#ent% includin$ a#on$ others pu"lic utilities for the transport of the $oods or co##odities% stevedorin$ and arrastre contracts% to prohi"it any person or persons% entity or $overn#ental official fro# proceedin$ with% or continuin$ the e9ecution or i#ple#entation of any such pro!ect% or the operation of such pu"lic utility% or pursuin$ any lawful activity necessary for such e9ecution% i#ple#entation or operation. SECTION 1. his decree shall ta@e effect i##ediately.

,one in the City of 4anila% this 1.th day of January% in the year of =ur 5ord% nineteen hundred and ei$hty2one.

SC CIRCULAR NO. 5IAD3

PRESIDENTIAL DECREE NO. /I/I
P1O/ - $ 2G CO:1$S ;1OM SS: 2G 1ES$1A 2 2G O1)E1S O1 P1EL M 2A1C 2J:2C$ O2S 2 CASES 2=OL= 2G 2;1AS$1:C$:1E A2) 2A$:1AL 1ESO:1CE )E=ELOPME2$ P1OJEC$S O;& A2) P:-L C :$ L $ ES OPE1A$E) -C& $/E GO=E12ME2$ 671R1AS% Presidential ,ecree No. ./; prohi"its the issuance "y the courts of restrainin$ orders or in!unctions in cases involvin$ concessions% licenses% and other per#its issued "y ad#inistrative officials or "odies for the e9ploitation% develop#ent and utili8ation of natural resources of the countryK 671R1AS% it is in the pu"lic interest to adopt a si#ilar prohi"ition a$ainst the issuance of such restrainin$ orders or in!unctions in other areas of activity e-ually critical to the econo#ic develop#ent effort of the nation% in order not to disrupt or ha#per the pursuit of essential $overn#ent pro!ects. N=6% 71R1C=R1% *% C1R,*NAN, 1. 4ARC=S% President of the Philippines% "y virtue of the powers vested in #e "y the Constitution% do here"y decree and order as follows< SECTION /. No court in the Philippines shall have !urisdiction to issue any restrainin$ order% preli#inary in!unction% or preli#inary #andatory in!unction in any case% dispute% or controversy involvin$ an infrastructure pro!ect%

S:-JEC$9 Strict Observance o! Section + o! P')' +7+7 Envisioned b" Circular 2o' +0>,0 dated March H& +,,0 and Circular 2o' .8>,. dated March .E& +,,. $O9 Judges o! the 1egional $rial Courts& ShariDa )istrict Courts& Metropolitan $rial Courts& Municipal $rial Courts in Cities& Municipal $rial Courts& Municipal Circuit $rial Courts and ShariDa Circuit Courts here have "een reports that despite Circular 102 90% dated 4arch ;% 1990% so#e courts are still issuin$ te#porary restrainin$ orders andVor preli#inary in!unctions even in cases% disputes% or controversies involvin$ $overn#ent infrastructure pro!ects in violation of Section 1 of P.,. 1818% which% provides< ISec. 1. No court in the Philippines shall have !urisdiction to issue any restrainin$ order% preli#inary in!unction% or preli#inary #andatory in!unction in any case% dispute% or controversy involvin$ an infrastructure pro!ect% or a #inin$% fishery% forest% or other natural resource develop#ent pro!ect of the $overn#ent% or any pu"lic utility operated "y the $overn#ent% includin$ a#on$ others pu"lic utilities for the transport of the $oods or co##odities% stevedorin$ and arrastre contracts% to prohi"it any person or persons% entity or $overn#ent officials fro# proceedin$ with% or continuin$ the e9ecution or i#ple#entation of any such pro!ect% or the operation of such pu"lic utility% or pursuin$ any lawful activity necessary for such e9ecution% i#ple#entation or operation.I *n order to o"viate co#plaints a$ainst the indiscri#inate issuance of restrainin$ orders and court in!unctions a$ainst $overn#ent pu"lic utilities and infrastructure pro!ects in $ross violation of the aforesaid Presidential ,ecree% the provision of Circular No. 10290 issued on 4arch ;% 1990 is here"y reiterated for your strict co#pliance. All Cler@s of Court are here"y directed to i##ediately furnish this =ffice copies of any restrainin$ order(s+ andVor writ(s+ of in!unction a$ainst $overn#ent corporations and pu"lic utility fir#s. Cor strict co#pliance. Nove#"er 0% 1993.

SC Reso!ution /E Fe%ru ry /DDI SC Cir. No /2 J DI

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA

SUPRECE COURT ADCINISTRATIVE CIRCULAR NO. 16AD4
$O9 CO:1$ O; APPEALS& SA2) GA2-ACA2& CO:1$ O; $A< APPEALS& 1EG O2AL $1 AL CO:1$S& ME$1OPOL $A2 $1 AL CO:1$S& M:2 C PAL $1 AL CO:1$S& M:2 C PAL $1 AL CO:1$S 2 C $ ES& M:2 C PAL C 1C: $ $1 AL CO:1$S& S/A1 DA ) S$1 C$ CO:1$SB S/A1 DA C 1C: $ CO:1$S A2) ALL MEM-E1S O; $/E 2$EG1A$E) -A1 O; $/E P/ L PP 2ES' S:-JEC$9 1E9 SPEC AL 1:LES ;O1 $EMPO1A1C 1ES$1A 2 2G O1)E1S A2) P1EL M 2A1C 2J:2C$ O2S'

c. here is an ur$ent and para#ount necessity for the writ to prevent serious da#a$es. (:autista v. :arcelona% 1// Phil. 1/78+ ,istin$uish "etween an in!unction and prohi"ition.
*n!unction 'enerally directed a$ainst a party in the action. ,oes not involve !urisdiction of the court the Prohi"ition ,irected a$ainst a court% tri"unal or person e9ercisin$ !udicial powers. 4ay "e on the $round that the court a$ainst who# the writ is sou$ht acted without or in e9cess of !urisdiction *s always the #ain action.

1. 6here an application for te#porary restrainin$ order ( R=+ or writ of preli#inary in!unction is included in a co#plaint or any initiatory pleadin$ filed with the trial court% such co#plaint or initiatory pleadin$ shall "e raffled only after notice to the adverse party and in the presence of such party of counsel. &. he application for a R= shall "e acted upon only after all parties are heard in a su##ary hearin$ conducted within twenty2four (&3+ hours after the records are trans#itted to the "ranch selected "y raffle. he records shall "e trans#itted i##ediately after raffle. 0. *f the #atter is of e9tre#e ur$ency% such that unless a R= is issued% $rave in!ustice and irrepara"le in!ury will arise% the 19ecutive Jud$e shall issue the R= effective only for seventy2two (7&+ hours fro# issuance "ut shall i##ediately su##on the parties for conference and i##ediately raffle the case in their presence. hereafter% "efore the e9piry of the seventy2two (7&+ hours% the Presidin$ Jud$e to who# the case is assi$ned shall conduct a su##ary hearin$ to deter#ine whether the R= can "e e9tended for another period until a hearin$ in the pendin$ application for preli#inary in!unction can "e conducted. *n no case shall the total period of the R= e9ceed twenty (&/+ days% includin$ the ori$inal seventy2two (7&+ hours% for the R= issued "y the 19ecutive Jud$e. 3. 6ith the e9ception of the provisions which necessarily involve #ultiple2sala stations% these rules shall apply to sin$le2sala stations especially with re$ard to i##ediate notice to all parties of all applications for R=. Cor i##ediate co#pliance. his Circular shall "e pu"lished in two (&+ newspapers of $eneral circulation and shall ta@e effect on =cto"er 1% 199;. Septe#"er 1&% 199;

4ay "e the #ain action itself% or !ust a provisional re#edy in the #ain action.

'1N1RA5 RB51< Courts should avoid issuin$ a writ of preli#inary in!unction which in effect disposes of the #ain case without trial. After denial of preli#nary in!unction% can a plaintiff apply for a second preli#inary in!unction> Ges. A second application for preli#inary in!unction% which rests in the sound discretion of the court% will ordinarily "e denied% unless it is "ased on facts un@nown at the ti#e of the first application. 7owever% this rule applies only where the second application is to operate on the SA41 AC sou$ht to "e en!oined in the first application% and cannot "e invo@ed where relief is sou$ht a$ainst a ,*CC1R1N AC . (Reyes v. CA% '.R. No. 87.37% &1 4ay 199/+ Can R C 4anila en!oin the sheriff fro# sellin$ properties levied upon to satisfy the !ud$#ent of R C ?C> Ges. 6here the properties involved were those of a stran$er to the action% the R C of 4anila can validly issue a writ of in!unction to prevent the sale thereof which was intended to satisfy the !ud$#ent of the R C ?C. his does not constitute an interference with the processes of a court of coordinate and co2e-ual !urisdiction as the sheriff was i#properly i#ple#entin$ the writ of e9ecution. (A"iera v. CA% 52&.&93% 01 4ay 197&+ 6ill in!unction lie a$ainst acts already consu##ated> No. *n!unction conte#plates acts "ein$ co##itted or a"out to "e co##itted and not acts already consu##ated. (Reyes v. 7arty% &1 Phil. 3&&+ :ut% if the acts co#plained of have already "een co##itted% "ut such acts are continuin$ in nature and were in dero$ation of plaintiffAs ri$hts at the outset% preli#inary #andatory in!unction #ay "e availed of to restore the parties to the status -uo. (,ayrit v. ,e 5os Santos% 18 Phil. &7;+ *s te#porary restrainin$ order different fro# an in!unction> A te#porary restrainin$ order is intended only as a restraint upon the defendant until the

Re$ ! do Notes. 6hat is the pri#ary purpose of an in!unction> *ts pri#ary purpose is to preserve the status -uo "y restrainin$ action or interference or "y furnishin$ preventive relief. he status -uo is the last actual% peacea"le% uncontested status which precedes the pendin$ controversy. (Rodulfa v. Alfonso% 7. Phil. &&;+ 6hen will a #andatory in!unction issue> A #andatory in!unction is an e9tre#e re#edy and will "e $ranted only on showin$ that< a. he invasion of the ri$ht is #aterial and su"stantial. ". he ri$ht of the co#plainant is clear and un#ista@ea"le.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA

propriety of $rantin$ an in!unction pendente lite% te#porary or perpertual% can "e deter#ined% and it does no #ore than restrain the proceedin$s until such deter#ination. Accordin$ly% the $rant% denial or liftin$ of a restrainin$ order does not in any way pree#pt the courtAs power to decide the issue in the #ain action which is the in!unction suit. (An$lo2Cil radin$ Corp.% v. 5a8aro% '.R. No. ;39;8% & Septe#"er 1980+ *s a status -uo order issued "y the SC the sa#e as an in!unction> A status -uo order is intended to #aintain the last actual% peacea"le and uncontested state of thin$s which preceded the controversy. he order is issued #otu propio on e-uita"le considerations. Bnli@e% a R= or a preli#inary in!unction% a status -uo order is #ore in the nature of a cease and desist order% since it does not direct the doin$ or undoin$ of acts as in the case of prohi"itory or #andatory in!unctive relief. A status -uo order also does not re-uire the postin$ of a "ond. 6hat are the conditions for issuance of an e9 parte te#porary restrainin$ order> he e9ecutive !ud$e of a #ultiple sala court% or the president !ud$e of a sin$le sala court% is e#powered to issue e9 parte a R=% "ut su"!ect to the followin$ conditions< 1. R= shall "e effective for only 7& hours. &. 7e shall i##ediately co#ply with Sec. 3 re$ardin$ service of su##ons and acco#panyin$ docu#ents% and 0. 7e shall conduct a su##ary hearin$ within said 7& hours to deter#ine whether the restrainin$ order shall "e e9tended until the application for preli#inary in!unction can "e heard. 6hat are the $rounds for refusin$ or dissolvin$ the in!unction> 1. he co#plaint is insufficientK &. he defendant is per#itted to post a counter "ond% it appearin$ that he would sustain $reat da#a$es while the plaintiff can "e a#ply co#pensatedK andVor 0. =ther $rounds% as where the "ond posted "y the applicant turned out to "e insufficient or defective. he filin$ of a counter "ond warrants the dissolution of the in!unction. rue or Calse. Calse. he court has to assess the pro"a"le relative da#a$es. (,ir. of :ureau of eleco##unications v. Ali$aen% 520110;% &9 4ay 197/+ 9 utist Notes.

*C S* v. CA

:en$uet v. CA

,un$o$ v. CA

5:P v. 5istana

Repu"lic v. 4i$rino

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA direct% to the effect that he will faithfully dischar$e his duties in the action or proceedin$ and o"ey the orders of the court. (Sec. 3% Rule ;9+

0. Receivership (Rule ;9+ RB51 ;9 R1C1*)1RS7*P Appoint#ent of receiver.
Bpon a verified application% one or #ore receivers of the property su"!ect of the action or proceedin$ #ay "e appointed "y the court where the action is pendin$% or "y the Court of Appeals or "y the Supre#e Court% or a #e#"er thereof% in the followin$ cases< (a+ 6hen it appears fro# the verified application% and such other proof as the court #ay re-uire% that the party applyin$ for the appoint#ent of a receiver has an interest in the property or fund which is the su"!ect of the action or proceedin$% and that such property or fund is in dan$er of "ein$ lost% re#oved% or #aterially in!ured unless a receiver "e appointed to ad#inister and preserve itK ("+ 6hen it appears in an action "y the #ort$a$ee for the foreclosure of a #ort$a$e that the property is in dan$er of "ein$ wasted or dissipated or #aterially in!ured% and that its value is pro"a"ly insufficient to dischar$e the #ort$a$e de"t% or that the parties have so stipulated in the contract of #ort$a$eK (c+ After !ud$#ent% to preserve the property durin$ the pendency of an appeal% or to dispose of it accordin$ to the !ud$#ent% or to aid e9ecution when the e9ecution has "een returned unsatisfied or the !ud$#ent o"li$or refuses to apply his property in satisfaction of the !ud$#ent% or otherwise to carry the !ud$#ent into effectK (d+ 6henever in other cases it appears that the appoint#ent of a receiver is the #ost convenient and feasi"le #eans of preservin$% ad#inisterin$% or disposin$ of the property in liti$ation. ,urin$ the pendency of an appeal% the appellate court #ay allow an application for the appoint#ent of a receiver to "e filed in and decided "y the court of ori$in and the receiver appointed to "e su"!ect to the control of said court. (Sec. 1% Rule ;9+

Service of copies of "ondsK effect of disapproval of sa#e.
he person filin$ a "ond in accordance with the provisions of this Rule shall forthwith serve a copy thereof on each interested party% who #ay e9cept to its sufficiency or of the surety or sureties thereon. *f either the applicantTs or the receiverTs "ond is found to "e insufficient in a#ount% or if the surety or sureties thereon fail to !ustify% and a "ond sufficient in a#ount with sufficient sureties approved after !ustification is not filed forthwith% the application shall "e denied or the receiver dischar$ed% as the case #ay "e. *f the "ond of the adverse party is found to "e insufficient in a#ount or the surety or sureties thereon fail to !ustify% and a "ond sufficient in a#ount with sufficient sureties approved after !ustification is not filed forthwith% the receiver shall "e appointed or re2appointed% as the case #ay "e. (Sec. ;% Rule ;9+

'eneral powers of receiver.
Su"!ect to the control of the court in which the action or proceedin$ is pendin$% a receiver shall have the power 1. to "rin$ and defend% in such capacity% actions in his own na#eK &. to ta@e and @eep possession of the property in controversyK 0. to receive rentsK 3. to collect de"ts due to hi#self as receiver or to the fund% property% estate% person% or corporation of which he is the receiverK ;. to co#pound for and co#pro#ise the sa#eK to #a@e transfersK .. to pay outstandin$ de"tsK 7. to divide the #oney and other property that shall re#ain a#on$ the persons le$ally entitled to receive the sa#eK 8. and $enerally to do such acts respectin$ the property as the court #ay authori8e. 7owever% funds in the hands of a receiver #ay "e invested only "y order of the court upon the written consent of all the parties to the action. No action #ay "e filed "y or a$ainst a receiver without leave of the court which appointed hi#. (Sec. .% Rule ;9+

:ond on appoint#ent of receiver.

:efore issuin$ the order appointin$ a receiver the court shall re-uire the applicant to file a "ond e9ecuted to the party a$ainst who# the application is presented% in an a#ount to "e fi9ed "y the court% to the effect that the applicant will pay such party all da#a$es he #ay sustain "y reason of the appoint#ent of such receiver in case the applicant shall have procured such appoint#ent without sufficient causeK and the court #ay% in its discretion% at any ti#e after the appoint#ent% re-uire an additional "ond as further security for such da#a$es. (Sec. &% Rule ;9+

5ia"ility for refusal or ne$lect to deliver property to receiver.

,enial of application or dischar$e of receiver.

he application #ay "e denied% or the receiver dischar$ed% when the adverse party files a "ond e9ecuted to the applicant% in an a#ount to "e fi9ed "y the court% to the effect that such party will pay the applicant all da#a$es he #ay suffer "y reason of the acts% o#issions% or other #atters specified in the application as $round for such appoint#ent. he receiver #ay also "e dischar$ed if it is shown that his appoint#ent was o"tained without sufficient cause. (Sec. 0% Rule ;9+

A person who refuses or ne$lects% upon reasona"le de#and% to deliver to the receiver all the property% #oney% "oo@s% deeds% notes% "ills% docu#ents and papers within his power or control% su"!ect of or involved in the action or proceedin$% or in case of disa$ree#ent% as deter#ined and ordered "y the court% #ay "e punished for conte#pt and shall "e lia"le to the receiver for the #oney or the value of the property and other thin$s so refused or ne$lected to "e surrendered% to$ether with all da#a$es that #ay have "een sustained "y the party or parties entitled thereto as a conse-uence of such refusal or ne$lect. (Sec. 7% Rule ;9+

=ath and "ond of receiver.

er#ination receiver.

of

receivershipK

co#pensation

of

:efore enterin$ upon his duties% the receiver shall "e sworn to perfor# the# faithfully% and shall file a "ond% e9ecuted to such person and in such su# as the court #ay

6henever the court% #otu proprio or on #otion of either party% shall deter#ine that the necessity for a receiver no lon$er e9ists% it shall% after due notice to all

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 interested parties and hearin$% settle the accounts of the receiver% direct the delivery of the funds and other property in his possession to the person ad!ud$ed to "e entitled to receive the#% and order the dischar$e of the receiver fro# further duty as such. he court shall allow the receiver such reasona"le co#pensation as the circu#stances of the case warrant% to "e ta9ed as costs a$ainst the defeated party% or apportioned% as !ustice re-uires. (Sec. 8% Rule ;9+

JONATHAN T5 PAMPOLINA

Jud$#ent to include recovery a$ainst sureties.

he a#ount% if any% to "e awarded to any party upon any "ond filed in accordance with the provisions of this Rule% shall "e clai#ed% ascertained% and $ranted under the sa#e procedure prescri"ed in section &/ of Rule ;7. (Sec. 9% Rule ;9+

ala$ v. CA

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA a "ond e9ecuted to the applicant% in dou"le the value of the property as stated in the applicantTs affidavit for the delivery thereof to the applicant% if such delivery "e ad!ud$ed% and for the pay#ent of such su# to hi# as #ay "e recovered a$ainst the adverse party% and "y servin$ a copy of such "ond on the applicant. (Sec. ;% Rule ./+

3. Replevin (Rule ./+ RB51 ./ R1P51)*N Application.
A party prayin$ for the recovery of possession of personal property #ay% at the co##ence#ent of the action or at any ti#e "efore answer% apply for an order for the delivery of such property to hi#% in the #anner hereinafter provided. (Sec. 1% Rule ./+

,isposition of property "y sheriff.
*f within five (;+ days after the ta@in$ of the property "y the sheriff% a. the adverse party does not o"!ect to the sufficiency of the "ond% or of the surety or sureties thereonK ". or if the adverse party so o"!ects and the court affir#s its approval of the applicantTs "ond or approves a new "ond% c. or if the adverse party re-uires the return of the property "ut his "ond is o"!ected to and found insufficient and he does not forthwith file an approved "ond% the property shall "e delivered to the applicant. (Sec. .% Rule ./+ *f for any reason the property is not delivered to the applicant% the sheriff #ust return it to the adverse party. (Sec. .% Rule ./+

Affidavit and "ond.

he applicant #ust show "y his own affidavit or that of so#e other person who personally @nows the facts< (a+ hat the applicant is the owner of the property clai#ed% particularly descri"in$ it% or is entitled to the possession thereofK ("+ hat the property is wron$fully detained "y the adverse party% alle$in$ the cause of detention thereof accordin$ to the "est of his @nowled$e% infor#ation% and "eliefK (c+ hat the property has not "een distrained or ta@en for a ta9 assess#ent or a fine pursuant to law% or sei8ed under a writ of e9ecution or preli#inary attach#ent% or otherwise placed under custodia le$is% or if so sei8ed% that it is e9e#pt fro# such sei8ure or custodyK and (d+ he actual #ar@et value of the property. he applicant #ust also $ive a "ond% e9ecuted to the adverse party in dou"le the value of the property as stated in the affidavit afore#entioned% for the return of the property to the adverse party if such return "e ad!ud$ed% and for the pay#ent to the adverse party of such su# as he #ay recover fro# the applicant in the action. (Sec. &% Rule ./+

Proceedin$s where property clai#ed "y third person.

=rder.
Bpon the filin$ of such affidavit and approval of the "ond% the court shall issue an order and the correspondin$ writ of replevin descri"in$ the personal property alle$ed to "e wron$fully detained and re-uirin$ the sheriff forthwith to ta@e such property into his custody. (Sec. 0% Rule ./+

,uty of the sheriff.
Bpon receivin$ such order% the sheriff #ust serve a copy thereof on the adverse party% to$ether with a copy of the application% affidavit and "ond% and #ust forthwith ta@e the property% if it "e in the possession of the adverse party% or his a$ent% and retain it in his custody. *f the property or any part thereof "e concealed in a "uildin$ or enclosure% the sheriff #ust de#and its delivery% and if it "e not delivered% he #ust cause the "uildin$ or enclosure to "e "ro@en open and ta@e the property into his possession. After the sheriff has ta@en possession of the property as herein provided% he #ust @eep it in a secure place and shall "e responsi"le for its delivery to the party entitled thereto upon receivin$ his fees and necessary e9penses for ta@in$ and @eepin$ the sa#e. (Sec. 3% Rule ./+

*f the property ta@en is clai#ed "y any person other than the party a$ainst who# the writ of replevin had "een issued or his a$ent% and such person #a@es an affidavit of his title thereto% or ri$ht to the possession thereof% statin$ the $rounds therefor% and serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant% the sheriff shall not "e "ound to @eep the property under replevin or deliver it to the applicant unless the applicant or his a$ent% on de#and of said sheriff% shall file a "ond approved "y the court to inde#nify the third2party clai#ant in a su# not less than the value of the property under replevin as provided in section & hereof. *n case of disa$ree#ent as to such value% the court shall deter#ine the sa#e. No clai# for da#a$es for the ta@in$ or @eepin$ of the property #ay "e enforced a$ainst the "ond unless the action therefor is filed within one hundred twenty (1&/+ days fro# the date of the filin$ of the "ond. he sheriff shall not "e lia"le for da#a$es% for the ta@in$ or @eepin$ of such property% to any such third2party clai#ant if such "ond shall "e filed. Nothin$ herein contained shall prevent such clai#ant or any third person fro# vindicatin$ his clai# to the property% or prevent the applicant fro# clai#in$ da#a$es a$ainst a third2party clai#ant who filed a frivolous or plainly spurious clai#% in the sa#e or a separate action. 6hen the writ of replevin is issued in favor of the Repu"lic of the Philippines% or any officer duly representin$ it% the filin$ of such "ond shall not "e re-uired% and in case the sheriff is sued for da#a$es as a result of the replevin% he shall "e represented "y the Solicitor 'eneral% and if held lia"le therefor% the actual da#a$es ad!ud$ed "y the court shall "e paid "y the National reasurer out of the funds to "e appropriated for the purpose. (Sec. 7% Rule ./+

Return of property.
*f the adverse party o"!ects to the sufficiency of the applicantTs "ond% or of the surety or sureties thereon% he cannot i##ediately re-uire the return of the property% "ut if he does not so o"!ect% he #ay% at any ti#e "efore the delivery of the property to the applicant% re-uire the return thereof% "y filin$ with the court where the action is pendin$

Return of papers.
he sheriff #ust file the order% with his proceedin$s indorsed thereon% with the court within ten (1/+ days after ta@in$ the property #entioned therein. (Sec. 8% Rule ./+

Jud$#ent.

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 After trial of the issues% the court shall deter#ine who has the ri$ht of possession to and the value of the property and shall render !ud$#ent in the alternative for the delivery thereof to the party entitled to the sa#e% or for its value in case delivery cannot "e #ade% and also for such da#a$es as either party #ay prove% with costs. (Sec. 9% Rule ./+

JONATHAN T5 PAMPOLINA

Jud$#ent to include recovery a$ainst sureties.

he a#ount% if any% to "e awarded to any party upon any "ond filed in accordance with the provisions of this Rule% shall "e clai#ed% ascertained% and $ranted under the sa#e procedure as prescri"ed in section &/ of Rule ;7. (Sec. 1/% Rule ./+

Sapu$ay v. CA

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA durin$ its pendency% in accordance with the procedure esta"lished under this Rule. (Sec. .% Rule .1+

;. Support Pendente 5ite (Rule .1+ RB51 .1 SBPP=R P1N,1N 1 5* 1 Application.
At the co##ence#ent of the proper action or proceedin$% or at any ti#e prior to the !ud$#ent or final order% a verified application for support pendente lite #ay "e filed "y any party statin$ the $rounds for the clai# and the financial conditions of "oth parties% and acco#panied "y affidavits% depositions or other authentic docu#ents in support thereof. (Sec. 1% Rule .1+

Restitution.
6hen the !ud$#ent or final order of the court finds that the person who has "een providin$ support pendente lite is not lia"le therefor% it shall order the recipient thereof to return to the for#er the a#ounts already paid with le$al interest fro# the dates of actual pay#ent% without pre!udice to the ri$ht of the recipient to o"tain rei#"urse#ent in a separate action fro# the person le$ally o"li$ed to $ive the support. Should the recipient fail to rei#"urse said a#ounts% the person who provided throu$h sa#e #ay li@ewise see@ rei#"urse#ent thereof in a separate action fro# the person le$ally o"li$ed to $ive such support. (Sec. 7% Rule .1+

Co##ent.

A copy of the application and all supportin$ docu#ents shall "e served upon the adverse party% who shall have five (;+ days to co##ent thereon unless a different period is fi9ed "y the court upon his #otion. he co##ent shall "e verified and shall "e acco#panied "y affidavits% depositions or other authentic docu#ents in support thereof. (Sec. &% Rule .1+

7earin$.
After the co##ent is filed% or after the e9piration of the period for its filin$% the application shall "e set for hearin$ not #ore than three (0+ days thereafter. he facts in issue shall "e proved in the sa#e #anner as is provided for evidence on #otions. (Sec. 0% Rule .1+

=rder.
he court shall deter#ine provisionally the pertinent facts% and shall render such orders as !ustice and e-uity #ay re-uire% havin$ due re$ard to the pro"a"le outco#e of the case and such other circu#stances as #ay aid in the proper resolution of the -uestion involved. *f the application is $ranted% the court shall fi9 the a#ount of #oney to "e provisionally paid or such other for#s of support as should "e provided% ta@in$ into account the necessities of the applicant and the resources or #eans of the adverse party% and the ter#s of pay#ent or #ode for providin$ the support. *f the application is denied% the principal case shall "e tried and decided as early as possi"le.

1nforce#ent of order.

*f the adverse party fails to co#ply with an order $rantin$ support pendente lite% the court shall% #otu proprio or upon #otion% issue an order of e9ecution a$ainst hi#% without pre!udice to his lia"ility for conte#pt. 6hen the person ordered to $ive support pendente lite refuses or fails to do so% any third person who furnished that support to the applicant #ay% after due notice and hearin$ in the sa#e case% o"tain a writ of e9ecution to enforce his ri$ht of rei#"urse#ent a$ainst the person ordered to provide such support. (Sec. ;% Rule .1+

Support in cri#inal cases.

*n cri#inal actions where the civil lia"ility includes support for the offsprin$ as a conse-uence of the cri#e and the civil aspect thereof has not "een waived% reserved or instituted prior to its filin$% the accused #ay "e ordered to provide support pendente lite to the child "orn to the offended party alle$edly "ecause of the cri#e. he application therefor #ay "e filed successively "y the offended party% her parents% $randparents or $uardian and the State in the correspondin$ cri#inal case

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA thereafter render !ud$#ent "arrin$ hi# fro# any clai# in respect to the su"!ect #atter. he parties in an interpleader action #ay file counterclai#s% cross2clai#s% third2party co#plaints and responsive pleadin$s thereto% as provided "y these Rules. (Sec. ;% Rule .&+

>>VII. Speci ! Ci#i! Actions O#er#ie" o& Speci ! Ci#i! Actions 1. *nterpleader (Rule .&+ &. ,eclaratory Relief (Rule .0+ 0. Review of Jud$#ents of C=4151C and C=A (Rule .3+ 3. Certiorari (Rule .;+ ;. Prohi"ition (Rule .;+ .. 4anda#us (Rule .;+ 7. ?uo 6arranto (Rule ..+ 8. 19propriation (Rule .7+ 9. Coreclosure of Real 1state 4ort$a$e (Rule .8+ 1/. Partition (Rule .9+ 11. Corci"le 1ntry and Bnlawful ,etainer (Rule 7/+

,eter#ination.
After the pleadin$s of the conflictin$ clai#ants have "een filed% and pre2trial has "een conducted in accordance with the Rules% the court shall proceed to deter#ine their respective ri$hts and ad!udicate their several clai#s. (Sec. .% Rule .&+

,oc@et and other lawful fees% costs and liti$ation e9penses as liens.
he doc@et and other lawful fees paid "y the party who filed a co#plaint under this Rule% as well as the costs and liti$ation e9penses% shall constitute a lien or char$e upon the su"!ect #atter of the action% unless the court shall order otherwise. (Sec. 7% Rule .&+

1. *nterpleader (Rule .&+ RB51 .& *N 1RP51A,1R 6hen interpleader proper.
6henever conflictin$ clai#s upon the sa#e su"!ect #atter are or #ay "e #ade a$ainst a person who clai#s no interest whatever in the su"!ect #atter% or an interest which in whole or in part is not disputed "y the clai#ants% he #ay "rin$ an action a$ainst the conflictin$ clai#ants to co#pel the# to interplead and liti$ate their several clai#s a#on$ the#selves. (Sec. 1% Rule .&+

=rder.
Bpon the filin$ of the co#plaint% the court shall issue an order re-uirin$ the conflictin$ clai#ants to interplead with one another. *f the interests of !ustice so re-uire% the court #ay direct in such order that the su"!ect #atter "e paid or delivered to the court. (Sec. &% Rule .&+

Su##ons.
Su##ons shall "e served upon the conflictin$ clai#ants% to$ether with a copy of the co#plaint and order. (Sec. 0% Rule .&+

4otion to dis#iss.

6ithin the ti#e for filin$ an answer% each clai#ant #ay file a #otion to dis#iss on the $round of i#propriety of the interpleader action or on other appropriate $rounds specified in Rule 1.. he period to file the answer shall "e tolled and if the #otion is denied% the #ovant #ay file his answer within the re#ainin$ period% "ut which shall not "e less than five (;+ days in any event% rec@oned fro# notice of denial. (Sec. 3% Rule .&+

Answer and other pleadin$s.
1ach clai#ant shall file his answer settin$ forth his clai# within fifteen (1;+ days fro# service of the su##ons upon hi#% servin$ a copy thereof upon each of the other conflictin$ clai#ants who #ay file their reply thereto as provided "y these Rules. *f any clai#ant fails to plead within the ti#e herein fi9ed% the court #ay% on #otion% declare hi# in default and

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA

&. ,eclaratory Relief and Si#ilar Re#edies (Rule .0+ RB51 .0 ,1C5ARA =RG R15*1C AN, S*4*5AR R141,*1S 6ho #ay file petition.
a. Any person interested under a deed% will% contract or other written instru#ent% ". whose ri$hts are affected "y a statute% e9ecutive order or re$ulation% ordinance% or any other $overn#ental re$ulation #ay% c. "efore "reach or violation thereof% "rin$ an action in the appropriate Re$ional rial Court to deter#ine any -uestion of construction or validity arisin$% and for a declaration of his ri$hts or duties% thereunder. 1. An action for the refor#ation of an instru#ent% &. to -uiet title to real property or re#ove clouds therefro#% or 0. to consolidate ownership under Article 1./7 of the Civil Code% #ay "e "rou$ht under this Rule. (Sec. 1% Rule .0+

SC Reso!ution /E Fe%ru ry /DDI

)elarde v. SJS

P,*C v. CA

Parties.

All persons who have or clai# any interest which would "e affected "y the declaration shall "e #ade partiesK and no declaration shall% e9cept as otherwise provided in these Rules% pre!udice the ri$+ts o& persons not p rties to t+e ction. (Sec. &% Rule .&+

Notice on Solicitor 'eneral.
*n any ction "+ic+ in#o!#es t+e # !idity o& st tute, e)ecuti#e order or re$u! tion, or ny ot+er $o#ern'ent ! re$u! tion % the Solicitor 'eneral shall "e notified "y the party assailin$ the sa#e and shall "e entitled to "e heard upon such -uestion. (Sec. 0% Rule .&+

5ocal $overn#ent ordinances.

*n any action involvin$ the validity of a local $overn#ent ordinance% the correspondin$ prosecutor or attorney of the local $overn#ental unit involved shall "e si#ilarly notified and entitled to "e heard. *f such ordinance is alle$ed to "e unconstitutional% the Solicitor 'eneral shall also "e notified and entitled to "e heard. (Sec. 3% Rule .&+

Court action discretionary.
19cept in actions fallin$ under the second para$raph of section 1 of this Rule% the court% #otu proprio or upon #otion% ' y re&use to e)ercise t+e po"er to dec! re ri$+ts nd to construe instru'ents in any case where a decision would not ter#inate the uncertainty or controversy which $ave rise to the action% or in any case where the declaration or construction is not necessary and proper under the circu#stances. (Sec. ;% Rule .&+

Conversion into ordinary action.
*f "efore the final ter#ination of the case% a "reach or violation of an instru#ent or a statute% e9ecutive order or re$ulation% ordinance% or any other $overn#ental re$ulation should ta@e place% the action #ay thereupon "e con#erted into n ordin ry ction % and the parties shall "e allowed to file such pleadin$s as #ay "e necessary or proper. (Sec. .% Rule .&+

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA

0. Review of Jud$#ents Resolutions of C=4151C Appoint#ents (Rule .3+

and Cinal =rders and Co##ission

or of

RB51 .3 R1)*16 =C JB,'41N S AN, C*NA5 =R,1RS =R R1S=5B *=NS =C 71 C=44*SS*=N =N 151C *=NS AN, 71 C=44*SS*=N =N AB,* Scope.
his Rule shall $overn the review of !ud$#ents and final orders or resolutions of the Co##ission on 1lections and the Co##ission on Audit. (Sec. 1% Rule .3+

shall contain a sworn certification a$ainst foru# shoppin$ as provided in the third para$raph of section 0% Rule 3.. he petition shall further "e acco#panied "y proof of service of a copy thereof on the Co##ission concerned and on the adverse party% and of the ti#ely pay#ent of doc@et and other lawful fees. he failure of petitioner to co#ply with any of the fore$oin$ re-uire#ents shall "e sufficient $round for the dis#issal of the petition. (Sec. ;% Rule .3+

=rder to co##ent.

4ode of review.

A !ud$#ent or final order or resolution of the Co##ission on 1lections and the Co##ission on Audit #ay "e "rou$ht "y the a$$rieved party to the Supre#e Court on certiorari under Rule .;% e9cept as hereinafter provided. (Sec. &% Rule .3+

a. *f the Supre#e Court finds the petition sufficient in for# and su"stance% it shall order the respondents to file their co##ents on the petition within ten (1/+ days fro# notice thereofK ". otherwise% the Court #ay dis#iss the petition outri$ht. he Court #ay also dis#iss the petition if it was filed #anifestly for delay% or the -uestions raised are too unsu"stantial to warrant further proceedin$s. (Sec. .% Rule .3+

Co##ents of respondents.
he co##ents of the respondents shall "e filed in ei$hteen (18+ le$i"le copies. he ori$inal shall "e acco#panied "y certified true copies of such #aterial portions of the record as are referred to therein to$ether with other supportin$ papers. he re-uisite nu#"er of copies of the co##ents shall contain plain copies of all docu#ents attached to the ori$inal and a copy thereof shall "e served on the petitioner. No ot+er p!e din$ ' y %e &i!ed %y ny p rty unless re-uired or allowed "y the Court. (Sec. 7% Rule .3+

i#e to file petition.
he petition shall "e filed within thirty (0/+ days fro# notice of the !ud$#ent or final order or resolution sou$ht to "e reviewed. he filin$ of a #otion for new trial or reconsideration of said !ud$#ent or final order or resolution% if allowed under the procedural rules of the Co##ission concerned% shall interrupt the period herein fi9ed. *f the #otion is denied% the a$$rieved party #ay file the petition within the re#ainin$ period% "ut which shall not "e less than five (;+ days in any event% rec@oned fro# notice of denial. (Sec. 0% Rule .3+

1ffect of filin$.

,oc@et and other lawful fees.
Bpon the filin$ of the petition% the petitioner shall pay to the cler@ of court the doc@et and other lawful fees and deposit the a#ount of P;//.// for costs. (Sec. 3% Rule .3+

he filin$ of a petition for certiorari shall not st y t+e e)ecution o& t+e *ud$'ent or &in ! order or reso!ution sou$+t to %e re#ie"ed % unless the Supre#e Court shall direct otherwise upon such ter#s as it #ay dee# !ust. (Sec. 8% Rule .3+

Su"#ission for decision.
Bnless the Court sets the case for oral ar$u#ent% or re-uires the parties to su"#it #e#oranda% the case shall "e dee#ed su"#itted for decision upon the filin$ of the co##ents on the petition% or of such other pleadin$s or papers as #ay "e re-uired or allowed% or the e9piration of the period to do so. (Sec. 9% Rule .3+

Cor# and contents of petition.
he petition shall "e verified and filed in ei$hteen (18+ le$i"le copies. he petition shall na#e the a$$rieved party as petitioner and shall !oin as respondents the Co##ission concerned and the person or persons interested in sustainin$ the !ud$#ent% final order or resolution a -uo. he petition shall state the facts with certainty% present clearly the issues involved% set forth the $rounds and "rief ar$u#ents relied upon for review% and pray for !ud$#ent annullin$ or #odifyin$ the -uestioned !ud$#ent% final order or resolution. Findin$s o& & ct o& t+e Co''ission supported %y su%st nti ! e#idence s+ !! %e &in ! nd nonA re#ie" %!e. he petition shall "e acco#panied "y a clearly le$i"le duplicate ori$inal or certified true copy of the !ud$#ent% final order or resolution su"!ect thereof% to$ether with certified true copies of such #aterial portions of the record as are referred to therein and other docu#ents relevant and pertinent thereto. he re-uisite nu#"er of copies of the petition shall contain plain copies of all docu#ents attached to the ori$inal copy of said petition. he petition shall state the specific #aterial dates showin$ that it was filed within the period fi9ed herein% and

SC Reso!ution /E Fe%ru ry /DDI

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA GE2E1AL& $/E GO=E12ME2$ CO1PO1A$E CO:2SEL& MEM-E1S O; $/E GO=E12ME2$ P1OSEC:$ O2 SE1= CE A2) MEM-E1S O; $/E 2$EG1A$E) -A1 O; $/E P/ L PP 2ES S:-JEC$9 CLA1 ; CA$ O2 O2 $/E P1O= S O2S O; PA1AG1AP/ *0#& 1E= SE) C 1C:LA1 2O' +>77 A2) S:PPLEME2$AL 1:LES $/E1E;O1' Para$raph (0+ of Revised Circular No. 1288 provides as follows< I(0+ Copies o! judgment or resolution sought to be revie%ed' 2 Petitions filed with the Supre#e Court% whether under Rule 3;% Rule .;% R. A. No. ;33/ or P. ,. No. 1//.% shall "e acco#panied "y a clearly le$i"le duplicate ori$inal or certified true copy of the decision% !ud$#ent% resolution or order su"!ect thereof% and the re-uisite nu#"er of plain copies thereof. he certification shall "e acco#plished "y the proper Cler@ of Court or "y proper officer of the court% tri"unal% "oard% co##ission or office involved. Certification "y the parties the#selves% their counsel or any other person% shall not "e allowed.I he failure to co#ply with or #isco#prehension of the aforesaid re-uire#ent in petitions to the Supre#e Court% or in petitions or other initiatory pleadin$s filed in other courts or -uasi2!udicial a$encies which have adopted the sa#e or si#ilar provisions has created unnecessary controversies and resulted in undue delay in the proceedin$s therein. Cor the $uidance of all concerned% the followin$ clarifications and supple#ental rules in co#plyin$ with the re-uire#ent in Para$raph (0+ of Revised Circular No. 128. are here"y announced for strict co#pliance< Q1R he 5duplicate original cop"5 shall "e understood to "e that copy of the decision% !ud$#ent% resolution or order which is intended for and furnished to a party in the case or proceedin$ in the court or ad!udicative "ody which rendered and issued the sa#e. he Icertified true copyI thereof shall "e such other copy furnished to a party at his instance or in his "ehalf% duly authenticated "y the authori8ed officers or representatives of the issuin$ entity as herein"efore specified. Q&R he duplicate ori$inal copy #ust "e duly si$ned or initialed "y the authorities or the correspondin$ officer or representative of the issuin$ entity% or shall at least "ear the dry seal thereof or any other official indication of the authenticity and co#pleteness of such copy. Cor this purpose% all courts% offices or a$encies furnishin$ such copies which #ay "e used in accordance with Para$raph (0+ of Revised Circular No. 1288 shall #a@e arran$e#ent for and desi$nate the personnel who shall "e char$ed with the i#ple#entation of this re-uire#ent. Q0R he certified true copy #ust further co#ply with all the re$ulations therefor of the issuin$ entity and it is the authenticated ori$inal of such certified true copy% and not a #ere 9ero9 copy thereof% which shall "e utili8ed as an anne9 to the petition or other initiatory pleadin$. Q3R Re$ardless of whether a duplicate ori$inal copy or a certified true copy of the ad!udicatory docu#ent is anne9ed to the petition or initiatory pleadin$% the sa#e #ust "e an e9act and co#plete copy of the ori$inal% and all the pa$es

3. Certiorari (Rule .;+ Petition for certiorari.
a. 6hen any tri"unal% "oard or officer e9ercisin$ !udicial or -uasi2!udicial functions has acted without or in e9cess of its or his !urisdiction% or with $rave a"use of discretion a#ountin$ to lac@ or e9cess of !urisdiction% ". and there is no appeal% or any plain% speedy% and ade-uate re#edy in the ordinary course of law% a person a$$rieved there"y #ay file a verified petition in the proper court% !!e$in$ t+e & cts "it+ cert inty nd pr yin$ t+ t *ud$'ent %e rendered nnu!!in$ or 'odi&yin$ t+e proceedin$s o& suc+ tri%un !, %o rd or o&&icer % and $rantin$ such incidental reliefs as law and !ustice #ay re-uire. he petition shall "e acco#panied "y a certified true copy of the !ud$#ent% order or resolution su"!ect thereof% copies of all pleadin$s and docu#ents relevant and pertinent thereto% and a sworn certification of non2foru# shoppin$ as provided in the third para$raph of section 0% Rule 3.. (Sec. 1% Rule .;+

SC Reso!ution / Septe'%er 1666 in AC No. 66A 1A62 SC . 'endin$ Ru!e 54.3 s 'ended %y OCA Cir. No. 2D J DI0 IA'M' 2o' 88>.>80>SC' September +& .888'J

;:1$/E1 AME2) 2G SEC$ O2 E& 1:LE 4H O; $/E 1:LES O; C = L P1OCE):1E R1S=5B *=N :1 * R1S=5)1,% AS * *S 71R1:G R1S=5)1,% to further a#end Section 3% Rule .;% of the 1997 Rules of Civil Procedure% as a#ended "y the Resolution of July &1% 1998% so as to read as follows< SECTION 3. 6hen and where petition filed. U he petition shall "e filed not later than si9ty (./+ days fro# notice of the !ud$#ent% order or resolution. *n case a #otion for reconsideration or new trial is ti#ely filed% whether such #otion is re-uired or not% the si9ty (./+ day period shall "e counted fro# notice of the denial of said #otion. he petition shall "e filed in the Supre#e Court% or% if it relates to the acts or o#issions of a lower court or of a corporation% "oard% officer or person% in the Re$ional rial Court e9ercisin$ !urisdiction over the territorial area as defined "y the Supre#e Court. *t #ay also "e filed in the Court of Appeals whether or not the sa#e is in aid of its appellate !urisdiction% or in the Sandi$an"ayan if it is in aid of its appellate !urisdiction. *f it involves the acts or o#issions of a -uasi !udicial a$ency% unless otherwise provided "y law or these rules% the petition shall "e filed in and co$ni8a"le only "y the Court of Appeals. No e9tension of ti#e to file the petition shall "e $ranted e9cept for co#pellin$ reason and in no case e9ceedin$ fifteen (1;+ days. his resolution shall ta@e effect on Septe#"er 1% &///% followin$ its pu"lication in two (&+ newspapers of $eneral circulation.

SC Ad'in Cir. No. 2 J D5 ADCINISTRATIVE CIRCULAR NO. 2AD5
$O9 CO:1$ O; APPEALS& SA2) GA2-ACA2& CO:1$ O; $A< APPEALS& 1EG O2AL $1 AL CO:1$S& ME$1OPOL $A2 $1 AL CO:1$S& M:2 C PAL $1 AL CO:1$S& M:2 C PAL C 1C: $ $1 AL CO:1$S& @:AS > J:) C AL AGE2C ES& $/E OM-:)SMA2& $/E SOL C $O1

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05 thereof #ust "e clearly le$i"le and printed on white "ond or e-uivalent paper of $ood -uality with the sa#e di#ensions as the ori$inal copy. 1ither of the aforesaid copies shall "e anne9ed to the ori$inal copy of the petition or initiatory pleadin$ filed in court% while plain copies thereof #ay "e attached to the other copies of the pleadin$. Q;R *t shall "e the duty and responsi"ility of the party usin$ the docu#ents re-uired "y para$raph 0 of Circular No. 12 88 to verify and ensure co#pliance with all the re-uire#ents thereof as detailed in the precedin$ para$raphs. Cailure to do so shall result in the re!ection of such anne9es and the dis#issal of the case. Su"se-uent co#pliance shall not warrant any reconsideration unless the Court is fully satisfied that the non2co#pliance was not in any way attri"uta"le to the party% despite due dili$ence on his part% and that there are hi$hly !ustifia"le and co#pellin$ reasons for the Court to #a@e such other disposition as it #ay dee# !ust and e-uita"le. his Circular shall "e pu"lished in two newspapers of $eneral circulation and shall ta@e effect on June 1% 199.. April 17% 199..

JONATHAN T5 PAMPOLINA

4ayor :alindon$ v. )ice 'ov. ,acalos

esorero v. 4athay

,:P v. Pin$ol

Cortune v. CA

SC Reso!ution D Fe%ru ry /DDD RE= AC No. DDA 1A6/ SC 6ee v. 'alve8

ano v. Socrates ,u$o$ v. CA

Cala$ui v. CA

4acias v. 4acias Repu"lic v. CA

Serrano v. 'alant Siena Realty Corp v. 'al2lan$

:adua v. Cordillera :odon$

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA

;. Prohi"ition (Rule .;+ Petition for prohi"ition.
a. 6hen the proceedin$s of any tri"unal% corporation% "oard% officer or person% whether e9ercisin$ !udicial% -uasi2 !udicial or #inisterial functions% are without or in e9cess of its or his !urisdiction% or with $rave a"use of discretion a#ountin$ to lac@ or e9cess of !urisdiction% ". and there is no appeal or any other plain% speedy% and ade-uate re#edy in the ordinary course of law% a person a$$rieved there"y #ay file a verified petition in the proper court% alle$in$ the facts with certainty and prayin$ that !ud$#ent "e rendered co'' ndin$ t+e respondent to desist &ro' &urt+er proceedin$s in t+e ction or ' tter speci&ied t+erein, or otherwise $rantin$ such incidental reliefs as law and !ustice #ay re-uire. he petition shall li@ewise "e acco#panied "y a certified true copy of the !ud$#ent% order or resolution su"!ect thereof% copies of all pleadin$s and docu#ents relevant and pertinent thereto% and a sworn certification of non2foru# shoppin$ as provided in the third para$raph of section 0% Rule 3.. (Sec. &% Rule .3+

4anila Prince 7otel v. 'S*S

Paredes v. 'open$co

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA

.. 4anda#us (Rule .;+ Petition for #anda#us.
a. 6hen any tri"unal% corporation% "oard% officer or person unlawfully ne$lects the perfor#ance of an act which the law specifically en!oins as a duty resultin$ fro# an office% trust% or station% or unlawfully e9cludes another fro# the use and en!oy#ent of a ri$ht or office to which such other is entitled% ". and there is no other plain% speedy and ade-uate re#edy in the ordinary course of law% the person a$$rieved there"y #ay file a verified petition in the proper court% alle$in$ the facts with certainty and prayin$ that !ud$#ent "e rendered co'' ndin$ t+e respondent, i''edi te!y or t so'e ot+er ti'e to %e speci&ied %y t+e court, to do t+e ct re-uired to %e done to protect t+e ri$+ts o& t+e petitioner, nd to p y t+e d ' $es sust ined %y t+e petitioner %y re son o& t+e "ron$&u! cts o& t+e respondent . he petition shall also contain a sworn certification of non2foru# shoppin$ as provided in the third para$raph of section 0% Rule 3..

Syste#s Plus v. 5ocal 'ovAt of Caloocan

PA51A v. PA5

Bnited 7ousin$ v. ,ayrit

:autista v. Peralta

)ital2'o8on v. CA

4un. of 4a@ati v. CA

AVENA CIVIL PROCEDURE REVIEWER 2ND SEM AY ’04 – ’05

JONATHAN T5 PAMPOLINA he petition shall not interrupt the course of the principal case unless a te#porary restrainin$ order or a writ of preli#inary in!unction has "een issued a$ainst the pu"lic respondent fro# further proceedin$ in the case. (Sec. 7% Rule .;+

S RB51 .; C=44=N PR=)*S*=NS 6here petition filed.
he petition #ay "e filed not later than si9ty (./+ days fro# notice of the !ud$#ent% order or resolution sou$ht to "e assailed in the Supre#e Court or% if it relates to the acts or o#issions of a lower court or of a corporation% "oard% officer or person% in the Re$ional rial Court e9ercisin$ !urisdiction over the territorial area as defined "y the Supre#e Court. *t #ay also "e filed in the Court of Appeals whether or not the sa#e is in aid of its appellate !urisdiction% or in the Sandi$an"ayan if it is in aid of its !urisdiction. *f it involves the acts or o#issions of a -uasi2 !udicial a$ency% and unless otherwise provided "y law or these Rules% the petition shall "e filed in and co$ni8a"le only "y the Court of Appeals. (Sec. 3% Rule .;+

Proceedin$s after co##ent is filed.

Respondents and costs in certain cases.
6hen the petition filed relates to the acts or o#issions of a !ud$e% court% -uasi2!udicial a$ency% tri"unal% corporation% "oard% officer or person% the petitioner shall !oin% as private respondent or respondents with such pu"lic respondent or respondents% the person or persons interested in sust inin$ t+e proceedin$s in t+e courtK and it shall "e the duty of such private respondents to appear and defend% "oth in his or their own "ehalf and in "ehalf of the pu"lic respondent or respondents affected "y the proceedin$s% and the costs awarded in such proceedin$s in favor of the petitioner shall "e a$ainst the private respondents only% and not a$ainst the !ud$e% court% -uasi2!udicial a$ency% tri"unal% corporation% "oard% officer or person i#pleaded as pu"lic respondent or respondents. Bnless otherwise specifically directed "y the court where the petition is pendin$% the pu"lic respondents shall not appear in or file an answer or co##ent to the petition or any pleadin$ therein. *f the case is elevated to a hi$her court "y either party% the pu"lic respondents shall "e included therein as no#inal parties. 7owever% unless otherwise specifically directed "y the court% they shall not appear or participate in the proceedin$s therein. (Sec. ;% Rule .;+

After the co##ent or other pleadin$s re-uired "y the court are filed% or the ti#e for the filin$ thereof has e9pired% the court #ay hear the case or re-uire the parties to su"#it #e#oranda. *f after such hearin$ or su"#ission of #e#oranda or the e9piration of the period for the filin$ thereof the court finds that the alle$ations of the petition are true% it shall render !ud$#ent for the relief prayed for or to which the petitioner is entitled. he court% however% #ay dis#iss the petition if it finds the sa#e to "e patently without #erit% prosecuted #anifestly for delay% or that the -uestions raised therein are too unsu"stantial to re-uire consideration. (Sec. 8% Rule .;+

Service and enforce#ent of order or !ud$#ent.

A certified copy of the !ud$#ent rendered in accordance with the last precedin$ section shall "e served upon the court% -uasi2!udicial a$ency% tri"unal% corporation% "oard% officer or person concerned in such #anner as the court #ay direct% and diso"edience thereto shall "e punished as conte#pt. An e9ecution #ay issue for any da#a$es or costs awarded in accordance with section 1 of Rule 09. (Sec. 9% Rule .;+

=rder to co##ent.

*f the petition is sufficient in for# and su"stance to !ustify such process% the court shall issue an order re-uirin$ the respondent or respondents to co##ent on the petition within ten (1/+ days fro# receipt of a copy thereof. Such order shall "e served on the respondents in such #anner as the court #ay direct% to$ether with a copy of the petition and any anne9es thereto. *n petitions for certiorari "efore the Supre#e Court and the Court of Appeals% the provisions of section &% Rule ;.% shall "e o"served. :efore $ivin$ due course thereto% the court #ay re-uire the respondents to file their co##ent to% and not a #otion to dis#iss% the petition. hereafter% the court #ay re-uire the filin$ of a reply and such other responsive or other pleadin$s as it #ay dee# necessary and proper. (Sec. .% Rule .;+

19peditin$ pro