Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel

E. Chavez

CIVIL PROCEDURE NOTES PRELIMINARIES Remedial Law Branch of law which prescribes the method of enforcing the rights or obtaining redress for their invasions 1. Civil Procedure (Rules 1-71) 2. Special Proceedings (Rules 72-109) 3. Criminal Procedure (R110-R127) 4. Rules on Evidence (Rules 128-134)

Remedial Law vs Substantive Law Substantive Law Part of the law which creates, defines, or regulates rights concerning life, liberty, or property or the powers of agencies or instrumentalities for the administration of public affairs Makes vested rights possible Prospective in application Remedial Law Refers to the legislation providing means or methods whereby causes of action may be effectuated, wrongs redressed, and relief obtained (adjective law)

What are the sources of Remedial Law? 1. 1987 Constitution 2. BP 129 (Judiciary Reorganization Act of 1980) as amended by RA7691 (Act expanding the jurisdiction of MTCs, MuTCs, MCTCs 3. Rules of Court 4. Supreme Court Administrative Matters and Circulars 5. Supreme Court decisions

Has no vested rights Governs rights and transactions which took place (retroactive) SC is expressly empowered to promulgate procedural rules

6. New Civil Code 7. Family Code 8. Local Government Code (RA 7160), particularly the Katarungang Pambarangay Law 9. Special Laws and amendments 10. Rules of Procedure on Small Claims 11. Revised Manual of the Clerk of Court

Cannot be enacted by SC

Differentiate: Civil Actions, Special Proceedings, Criminal Actions Special Proceedin gs Criminal Procedure Civil Action

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Main Divisions of Remedial Law:

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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez

A remedy by which a party seeks to establish a status, a right, or a particular fact (Rule 1 S3c)

The State prosecutes a person for an act or omission punishable by law (Rule 1 S3b)

A proceeding wherein a person is prosecuted by the State for acts or omissions committed in violation of penal laws, and to impose the correspondi ng penalty provided for by penal laws Governed by special rules, and in the absence of special provisions, the rules provided for in ordinary civil actions shall be, as far as practicable, Governed by the Revised Rules of Criminal Procedure

A party sues another for the enforcemen t or protection of a right, or the prevention or redress of a wrong

apply suppletory (R72 S2) May involve only one party Initiated by petition Involves the State against the accused Initiated by complaint (but filed in court by Information ) Based on an act or omission punishable by law Involves 2 or more parties Initiated by complaint, or, in some special civil actions, by petition Based on a cause of action

A civil action may be ordinary or special. (R1 S3a)

Except Habeas Corpus, NOT based on a cause of action

CONSTITUTIONAL PROVISIONS Relating to CIVIL PROCEDURE Both are governed by the Rules for ordinary civil actions, subject to specific rules prescribed for a special civil action (R1 S3a) A8 S1 Judicial Power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial Power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there is grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez

What are those other Courts as may be established by Law? Sandiganbayan Family Courts (RA 8369) Court of Tax Appeals Sharia Court

o o o

Certiorari Prohibition Mandamus Quo warranto Habeas corpus

o
o

A3 S1 No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

A7 S4 The Supreme Court en banc shall be the sole judge of all contests relating to the election, returns, and qualification of the President or Vice President, and may promulgate its rules for the purpose.

A3 S9—(Basis of Rule 67) Private property shall not be taken for public use without payment of just compensation

A7 S18 The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within 30 days from its filing.

A6 S30 No law shall be passed increasing the appellate jurisdiction of the SC as provided in this Constitution without its advice and concurrence.

A8 S5 P2—(Basis of Rule 56) Review Revise Reverse Modify Affirm o On appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

A8 S5 P1 The Supreme Court shall have the following powers: Exercise original jurisdiction over cases affecting: o o Ambassadors Other public ministers and consuls

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Over petitions for

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any penalty imposed in relation thereto 3. instruction h. is in question 2. b. all cases involving the legality of any a. impost c. proclamation f. all criminal cases in which the penalty imposed is reclusion perpetua or higher 4 . order g. Rules of procedure of special court and quasi judicial bodies shall remain effective unless disapproved by the SC c. regulation i. law d. tax b. prescribe. Provide simplified and inexpensive procedure for speedy disposition of cases 2. all cases in which only an error or question of law is involved A8 S5 P5 (basis of Rules of Court) The SC shall have the power to promulgate rules concerning: 1. Pleading. Shall be uniform for all courts of the same grade 3. 4. Chavez 1. treaty. increase. presidential decree e.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. procedure in all courts 3. Integrated Bar 5. toll e. all cases in which the jurisdiction of any lower court is in issue A8 S2 The Congress shall have the power to define. modify substantive rights. international or executive agreement 5. Protection and enforcement of constitutional rights 2. practice. Admission to practice of law 4. ordinance i. All cases in which constitutionality or validity of any a. and apportion the jurisdiction of the various courts but may not deprive the SC of its jurisdiction over cases enumerated in S5 thereof. assessment d. Legal assistance to the underprivileged Such rules shall (Limits to SC-rule making power): 1. Shall not diminish.

Authority of the court to hear and decide a case and to implement its decision A3 S16 All persons shall have the right to speedy disposition of cases before before all judicial. May be changed by written agreement of the parties Not a ground for motu proprio dismissal. or memorandum required by the rules of the Commission or by the Commission itself. or ruling of each Commission may be brought to the SC on certiorari by the aggrieved party within 30 days from receipt of a copy thereof.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez No law shall be passed reorganizing the Judiciary when it undermines security of tenure of its members. Unless otherwise provided by this Constitution or by law. except in Summary Procedure Place where action is instituted May be waived Jurisdiction Power of court to hear and decide a case Jurisdiction over subject matter and over nature of action are conferred by law and cannot be waived Substantive Cannot be subject of the agreement of the parties A ground for motu proprio dismissal General Jurisdiction Power to adjudicate all controversies except those expressly withheld from the plenary powers of the court. CIVIL PROCEDURE PROPER Jurisdiction It extends to all controversies which may be brought before a court within the legal bounds of rights and remedies. administrative bodies. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading. any decision. No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without starting the legal basis therefor. Procedural A9A S7 (basis of Rule 64) Each Commission shall decide by majority of all its Members in any case or matter brought before it within 60 days from date of its submission for decision or resolution. 5 . Rule 30 Rule 36 Rule 39 Venue A8 S14—(basis for Rule 36) No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. brief. quasi judicial. order.

Writ of Amparo. or the authority of a court higher in rank to re-examine the final order or judgment of a lower court which tried the case or elevated for judicial review. Chavez Original Jurisdiction Special or Limited Jurisdiction One which restricts the court’s jurisdiction only to particular cases and subject to such limitations as may be provided by the governing law. SC. or which can be exercised only under the limitations and circumstances prescribed by the statute Appellate Jurisdiction Power and authority conferred upon a superior court to rehear and determine causes which have been tried in lower courts. by appeal or writ of error.g. Writ of Habeas Data Refers to geographical area within which the court’s powers can be exercised 6 . to take cognizance at the same stage of the same case in the same or different judicial territories Exclusive Original Jurisdiction Power of the court to take judicial cognizance of a case instituted for judicial action for the first time to the exclusion of all other courts Territorial Jurisdiction E. It is jurisdiction conferred upon or inherent in the first instance It is confined to particular causes. from the decision of a lower court or the review by a superior court of the final judgment or order of some lower courts Jurisdiction conferred by law and filed at the first instance (NOTE: all civil actions) Exclusive Jurisdiction Power to adjudicate a case or proceeding to the exclusion of all other courts at that stage Jurisdiction of the court to the exclusion of all other courts Concurrent / Confluent / Coordinate Jurisdiction Power conferred upon different courts. Sandiganbayan.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Power of the court to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law and appellate jurisdiction. RTC. the cognizance which a superior court takes of a case removed to it. CA. whether of the same or different ranks.in HC cases.

whether the lower court acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion Mode of review / SPECIAL CIVIL ACTION Directed against interlocutory order of the court or where there is no appeal or any plain. Chavez In civil cases. assumes importance in case of venue of real or mixed action In criminal cases.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. consideration of territory and locus of crime determine venue and jurisdiction Territorial jurisdictions: SC and CA National RTC Regional jurisdiction Inferior courts Territorial jurisdiction as defined by SC in BP129 *Power of tribunal considered with reference to the territory within which it is to be exercised. courts shall not take cognizance of a case unless it has been decided at the administrative level Coordinate Jurisdiction (same as Concurrent Jurisdiction) Power conferred upon different courts. whether of the same or different ranks. to take cognizance at the same stage of the same case in the same or different judicial territories Ancillary Jurisdiction Power of the courts to settle issues which are incidental to main issue Delegated Jurisdiction The grant of authority to inferior courts to hear and determine cadastral and land registration cases under certain conditions Appeal by Certiorari Rule 45 Petition is based on questions of law Petition for Certiorari Rule 65 Petition is based on questions of jurisdiction. especially where the question demands the exercise of sound administrative discretion requiring special knowledge and experience of said tribunal in determining technical and intricate matters of fact Mode of appeal Involves review of the judgment award or final order on the merits 7 . Doctrine of Primary Jurisdiction courts will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal.

Certiorari b. law. Mandamus d. or resolution sought to be reviewed Unless a writ of preliminary injunction or temporary restraining order is issued. reverse.(Rule 56) The SC shall have exclusive original jurisdiction over cases involving: 1. Other public ministers and consuls Appellant and appellee are original parties to the action. if a motion for reconsideration or new trial is filed. tribunal. modify. the petition does not stay the challenged proceeding filed with the Supreme Court with the RTC. as the law or the Rules of Court may provide. quasi judicial agency. the period shall not only be interrupted but another 60 days shall be given to petitioner (SC Admin Matter 02-03) Court exercises original jurisdiction 3. internation or executive agreement.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. revise. Chavez speedy. Comelec JURISDICTION SUPREME COURT Original Jurisdiction of the Supreme Court: A8 S5 P1. corporation. presidential Court is in exercise of its appellate jurisdiction and power of review Petition shall be Petition shall be filed 8 . Sandiganbayan. final judgments and orders of lower courts in: 1. Over petitions for: a. All cases in which the constitutionality or validity of any treaty. Prohibition c. or affirm on appeal or certiorari. or resolution appealed from Stays judgment or final order appealed from Filed not later than 60 days from notice of judgment. board or officer or person are public respondents who are impleaded in the action Motion for reconsideration or for new trial is required. order. Habeas corpus Motion for reconsideration is not required Appellate Jurisdiction of the Supreme Court: A8 S5 P2 The SC may review. court. and the lower court or quasi judicial agency is not impleaded Judge. Quo warranto e. CA. or adequate remedy Filed within 15 days from notice of judgment. final order. Ambassadors 2.

impost. All criminal cases in which the penalty imposed is reclusion perpetua or higher (WITHIN THE SCOPE OF CRIMINAL PROCEDURERULE 45) Original jurisdiction / Original Concurrent Jurisdiction Original jurisdiction to issue writs of: Mandamus Prohibition Certiorari Habeas corpus Quo warranto Auxiliary writs and processes.a party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals may file with the SC a verified petition for review on certiorari.PURE QUESTIONS OF LAW - Administrative Supervision of the Supreme Court: 1.over RTC decisions in the exercise of its ORIGINAL JURISDICTION (via Notice or Record of Appeal) 9 . Over court personnel 2. order.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. proclamation. Note that questions of law can be raised before the CA (BP129) 3. instruction. Over Justices 3. Practice of Law 5. Over Judges 4. The petition shall raise only questions of law which must be distinctly set forth. All cases in which the jurisdiction of any lower court is in issue COURT OF APPEALS 4. All cases in which only an error or question of law is imposed 1 and 2. Chavez decree. Members of the Integrated Bar Exclusive Original Jurisdiction: Exclusive original jurisdiction over the actions for annulment of judgments of RTCs Appellate Jurisdiction: CA decisions Appealable to SC under Rule 45 1. assessment or toll. All cases involving the legality of any tax. Rule 41. or any penalty imposed in relation thereto R45 S1. ordinance. or regulation is in question 2. o Whether or not in aid of its appellate jurisdiction 5.

Rule 43. where gross value of estate exceeds 300k OMM or exceeds 400k MM Gross value. In all civil actions and special proceedings falling within Exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law 9.Exclusive appellate jurisdiction over all final judgments. In all actions involving the contract of marriage and marital relations RTC Exclusive Original Jurisdiction: 1. attorney’s fees. or awards of quasi judicial agencies. litigation expenses. In all matters of probate. MuTC. tribunal. value of property involved exceeds 50k Except actions of FE and UD of lands and buildings.assessed value of property of deceased before deduction (NOT market value) 3. orders.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. resolution. In all civil actions which involve title to or possession of real property or any interest therein. person or body exercising jurisdiction of any court. boards. damages of whatever kind. including Special Civil Actions 4.over RTC decisions in the exercise of its APPELLATE JURISDICTION (via Petition for Review) 5. testate or intestate. In all actions in admiralty and maritime actions where demand or claim exceeds 300k OMM or exceeds 400k MM 2. Chavez - RTC jurisdiction. 10 . MCTC 8. original jurisdiction of which is conferred with MTC. exclusive of interest. tribunal. person or body exercising judicial or quasi judicial functions 2. first instance. Actions which cannot be quantified into monetary estimation Subject matter (BP129) (refer to 902-A below) 3. where assessed value of property involved exceeds 20k OMM or in MM. instrumentalities. In all other cases in which the demand. or commissions (via Petition for Review) 6. Rule 42. In all actions in which the subject of litigation is incapable of pecuniary estimation 7. In all cases not within the exclusive jurisdiction of any court.

then the MTC of the place where his estate is located. its offices or partnership.Gross value is 200k. or association of which they are stockholders. CA. business associates. but is under management of a rehabilitation receiver or management committee Concurrent Original Jurisdiction: With SC. Controversies in election or appointment of directors. below 20-50. partnerships. If a non resident. in cases where the corporation.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. 300-400) Ordinary Civil Actions: 11 . What is the jurisdiction and venue? MTC of the place of decedent’s actual residence at the time of his death. partnerships or associations to be declared in the state of suspension of payments. members or associates respectively. between and among stockholders.2 as amended by PD902-A)exclusive and original jurisdiction of the RTC to hear and decide following cases: 1. habeas corpus 2.over petitions for certiorari. MCTCs in their respective territorial jurisdictions MTC (note: baligtarin ang RTC jurisdiction. members or associates. partners. partnership or association possesses sufficient property to cover all its debts but foresees the impossibility of meeting them when the respectively fall due or in cases where the corporation. prohibition. 3. mandamus. Controversies arising out of intracorporate or partnership relations. officers or managers of such corporations. amounting to fraud or misrepresentation which may be interest of the public and/or of the stockholders. between any and all of them and the corporation. Chavez and costs or the value of property in controversy exceeds 300k OMM or exceeds 400k MM 1996 Bar. partnership or association has no sufficient assets to cover its liabilities. partnership. Cases involving devices or schemes employed by or any acts of the board of directors. MuTCs. quo warranto. Petitions of corporations. and between such corporation. or associations (RA8799 S5. partnership or association and the state insofar as it concerns their individual franchise or right to exist as such entity Appellate Jurisdiction: Over all cases decided by MTCs. if a resident of the Philippines. property located in Pampanga. trustees. members of associations or organizations registered with the Commission 4. -.

of whatever kind. exclusive original jurisdiction over civil actions and probate proceedings.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Provided. Chavez 1. estate or amount of the demand does not exceed 300k OMM or 400k MM exclusive of interest. and costs shall be included in the determination of the filing fees. Where AF are awarded. the value of such property shall be determined by assessed value of adjacent lots 4. embodied in the same complaint. AF. the issue of ownership shall be resolved only to determine the issue of possession (see: Summary Procedure) Summary Procedure: 1. litigation expenses and costs. where the value of the personal property. irrespective of the amount of damages or unpaid rentals sought to be recovered. including grant of provisional remedies in proper cases. over actions involving personal property valued at not more than 300k OMM or not more than 400k MM 6. exclusive original jurisdiction over cases of forcible entry or unlawful detainer. the amount of demand shall be the totality of the claims in all the causes of action. provided that when. Provided further that where there are several claims or causes of actions between the same or different parties. defendant raises questions of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership. All other civil cases. Provided that in cases of land not declared for taxation purposes. admiralty and maritime cases where the demand or claim does not exceed 300k OMM or does not exceed 400k MM 2. testate and intestate. damages of whatever kind. that interest. AF. the amount of which must be specifically alleged. litigation expenses. except probate proceedings. where the total amount of the plaintiff’s claim does not exceed 100k OMM or 200k MM exclusive of interests and costs (as amended by AM 2-11-9-SC) 12 . exclusive original jurisdiction in all civil actions involving title to or possession of property or any interest therein where assessed value of property or interest therein 2. costs. All cases of FE and UD. damages. AF. damages of whatever kind. civil cases where the demand does not exceed 300k or not more than 400k MM 5. in such cases. irrespective of whether the cause of action arose out of same or different transactions does not exceed 20k OMM or does not exceed 50k MM exclusive of interest. litigation expenses. the same shall not exceed 20k 3.

irrespective of whether the motion for its admission. Civil cases not higher than 100kSubject to the Rule on Small Claims By filing of original complaint in court plus payment of requisite docket fees What if. below 200k MM.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. SC-CA-RTC-MTC In Criminal Procedure. the action is commenced with regard to him on the date of filing of such later pleading. Right of Action (Simplified Version) Action Suit to enforce one’s right or for the prevention or redress of a wrong Cause of Action Act or omission by which a party violates a right of another Right of Action Remedial right to file a suit based on cause of action DOCKET FEES. Action. hence. in such case. subject to Summary Procedure pa rin Jurisdiction over defendant By voluntary appearance or service of summons Jurisdiction over subject matter Why the need to discuss jurisdiction? To know whether subject to Motion to Dismiss (Rule S1b). that the court has no jurisdiction over the subject matter of the case Conferred by law Jurisdiction over the issue Determined by allegations in the complaint In Civil Procedure. SC-CASANDIGANBAYAN-RTC-MTC Jurisdiction over the res By actual or constructive seizure of property by way of attachment or execution Commencement of a Civil Action: R1 S5 Civil action is commenced by the filing of the original complaint in court and payment of the requisite docket fees. if necessary. Chavez 3. gumitna? 150k? Higher than 100k OMM. then subject to Regular Proceedings in MTC BUT. If an additional defendant is impleaded in a later pleading. Cause of Action.needed to acquire jurisdiction over the case Original Distinctions: Jurisdiction over plaintiff Action Cause of Right of 13 . is denied by the court.

etc) - Mixed Action - Action affecting title to or possession of real property + Privity of Contract Venue: R4 S1 - Affected by affirmative defenses 2ND GROUP: for purposes of determining jurisdiction/service of summons Action In Rem Action which binds the whole world Note: all Special Proceedings are in rem actions 14 .Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. estoppel. prescription. Chavez Action Suit filed in court for enforcemem t or protection of a right. or the prevention or redress of a wrong (R1 S3) Act or omission by which a party violate a right of another (R2 S2) Action Remdial right or right to relief granted by law to a party to institute an action against a person who has committed delict or wrong against him Remedy or means afforded or the consequent relief Remedial right given to a person because of occurrence of the alleged facts A matter of right and depends on substantive law Kinds of actions: 1ST GROUP: for purposes of venue under Rule 4 Real Action Actions affecting title to or possession of real property (A415 NCC in consideration) Venue: R4 S1 - Reason for the action Personal Action - Involves privity of contract/personal property (A416-417 of NCC in consideration) Venue: R4 S2 Formal statement of operative facts that give rise to a remedial right Matter of procedure and depends on the pleadings filed by the parties Not affected by affirmative defenses (fraud.

Examples: Examples: Action for specific performance Action for partition Action in rem Directed against the thing itself Jurisdiction over person of defendant is not required Action in personam Directed against particular persons Jurisdiction over person of defendant is required Action Quasi in Rem Directed against particular persons Jurisdiction over the person of the defendant is not required as long as jurisdiction over the res is acquired A proceeding to subject the interest of a named defendant over a cadastral proceeding.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez - Summons/notification by PUBLICATION directly Action in Personam Action which binds the parties Judgment is binding on the whole world Judgment is bonding only upon the parties impleaded or their successors in interest Examples: particular property to an obligation or lien burdening it Judgment is binding upon particular persons Action Quasi In Rem Action which binds interests o o o o Foreclosure of mortgage Partition Attachment Any interest or lien on real property Probate proceeding. Action for breach of contract Action to foreclose real estate mortgage special proceedings Real Action Ownership or possession of real property is involved Personal Action Personal property is sought to be recovered or where damages for breach of contract are sought Founded on privity of contract Filed in the Mixed Action Both real and personal properties are involved A proceeding to determine the state or condition of a thing An action to impose a responsibilit y or liability upon a person Founded on privy of real estate Filed in the Founded on both Filed in the 15 .

depending on whether in rem. personal action. at option of plaintiff 16 . may be real action. or particular persons. because the action may also be real or mixed R4 S1 or R4 S2 may govern. depends on whether the action is real. depending on whether the action is real action Filed in court where plaintiff or any of defendants reside. where he may be found. mixed action Not necessarily. at election of plaintiff (R4 S2) Example: court where the property or any part thereof is situated (R4 S1) (R4 S2) or personal action Mixed Action Both real and personal properties are involved Founded on both privity of real estate and privity of contract Quasi In Rem Action Both real and personal properties may also be involved Action directed against particular persons. personal. but jurisdiction over defendant is not required as long as jurisdiction over the res is acquired Rules on personal actions govern (?) Example: Example: Rules on venue of real actions shall govern (R4 S1) Accion reivindicatori a Action for a sum of money Accion publiciana with a claim for damages Real Action Ownership or possession of real property is involved Filed in court where property or portion thereof is situated A proceeding founded on privity of real estate Judgment may bind whole world. or in case of non resident defendant. mixed A proceeding to determine state or condition of a thing Judgment is binding upon the whole world Personal Action Personal property is sought to be recovered or where damages for breach of contract are sought Founded on privity of contract Action in personam An action directed against particular persons.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. where defendant or any of the defendants resides. Chavez court where the property or any part thereof is situated (R4 S1) court where the plaintiff or any of the plaintiffs resides. in personam. quasi in rem In rem action Action directed against the thing itself Not necessarily.

Chavez PLEADING (R6 S1) Sworn written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment In special civil actions In special proceedings Counter counter claim Counter cross claim Counter Counter Claim Any claim which defending party in a counterclaim may have against the original counterclaimant COMPULSORYArises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim Counter Cross Claim Any claim which a defending party in a cross claim may have against the original cross claimant Can be an initiatory pleading. Answer (R6 S4) Pleading in which a defending party sets forth his defenses INITIATORY PLEADING A pleading that initiates an action RESPONSIVE PLEADING A pleading that responds to allegations in the adverse party’s pleading Initiatory Pleadings Original complaint Permissive counterclaim Cross claim Third party complaint 4th party complaint Complaint in intervention Petition PERMISSIVE.does not arise of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim Responsive Pleadings Answer to original complaint Answer to permissive counterclaim 17 .Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. if permissive Complaint (R6 S3) The complaint is the pleading alleging the plaintiff’s cause or causes of action.

Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez Answer to third party complaint Answer to fourth party complaint Answer to complaint in intervention Comment or objection to petition Compulsory counterclaim Reply Answer to counter counter claim Answer to counter cross claim counterclai m Answer to permissive counterclaim Cross claim Answer to third party complaint Third party complaint 4th party complaint Answer to fourth party complaint A motion IS NOT A PLEADING A position paper IS NOT A PLEADING A memorandum IS NOT A PLEADING Why? Motion is an application for relief other than by a pleading (R15 S1) Position Paper and Memorandum only narrate facts of the case. but only contain discussions Petition Complaint in interventio n Answer to complaint in intervention Comment or objection to petition In special civil actions Compulsory counterclaim Initiatory Pleading A pleading that initiates an action Responsive Pleading A pleading that responds to allegations in the adverse party’s pleading In special proceedings Reply Counter counter claim Answer to counter counter claim Original complaint Answer to original complaint Counter cross claim Answer to counter cross claim Permissive Need to be verified. no cause of action. issues. no defenses. with Except when otherwise provided by 18 .

action or proceedings involving any matter within authority of the Lupon shall be filed or instituted directly or indirectly in court or in any other government office or adjudication unless there has been a confrontation between the parties before the Lupon Chairman or the pangkat. plus payment of docket fees law or these Rules. where one party is the government or any subdivision or instrumentality thereof Answer to permissive counterclaim 2. BARANGAY CONCILIATION PROCEEDINGS No need for certification against forum shopping. docket fees are suspended) General Rule with respect to Barangay Conciliation Proceedings: S412. Chavez certification against forum shopping. and the dispute relates to performance of his official functions offenses punishable by imprisonment exceeding 1 year or a fine exceeding 5k pesos Succeeding pleadings in special proceedings Complaint. offenses where there is no private offended party FLOW OF CIVIL PROCEDURE 4. LGC Allegations of usury 1. Instances when verification is needed: Actionable document Exceptions to above rule: S408. where the dispute involves real properties located in different cities or municipalities unless the parties 19 . and not need for payment of docket fees (Note: compulsory counterclaim.a pleading alleging plaintiff’s cause and causes of action 3. and that no conciliation or settlement has been reacehed as certified by lupon or pangkat chairman. petition.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. need not be verified I. LGC No complaint. where one party is a public officer or employee.

7. because provisional remedies are merely ancillary to the main action. and support pendent lite where the action may otherwise be barred by the statute of limitations Venue of Barangay Conciliation Proceedings: S409. action to annul a judgment upon a compromise 5. LGC Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the lupon of said barangay 11.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. where the actions are coupled with provisional remedies such as preliminary injunction. disputes involving parties who actually reside in barangays of different cities or municipalities. in case of labor disputes 20 . such other classes of disputes which the President may determine in the interest of justice Does the Exclusive Original Jurisdiction of the RTC on actions involving those incapable of pecuniary estimation include provisional remedies as falling within the category? No. Chavez thereto agree to submit their differences to amicable settlement by an appropriate lupon 12. where one of the parties is a juridical entity 8. The category of actions incapable of pecuniary estimation refers only to main actions. (Zamora vs Heirs of Izquierdo) 9. delivery of personal property. except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon 13. where accused is under police custody or detention Purpose of Barangay Proceedings: Reduce the number of litigations and prevent the deterioration of the quality of justice which has been brought about by indiscriminate filing of cases in the courts. where the person has otherwise been deprived of personal liberty calling for habeas corpus proceeding 10. Disputes involving traditions of an indigenous cultural community 6. CARL disputes 14. attachment.

However. in which case the compromise settlement agreed upon by the parties before the lupon shall be submitted to the court and upon approval thereof. After the lapse of such time. the parties must appear in person without the assistance of counsel or representative. file a motion to dismiss under R16 S1j on the ground that a 21 . LGC The amicable settlement and arbitration award shall have the force and effect of a final judgment of a court upon the expiration of 10 days from the date Remedy in case of failure to comply with Barangay Conciliation: As defendant. LGC In all katarungang pambarangay proceedings. this provision shall not apply to court cases settled by the lupon under last paragraph of S408 of this Code. shall be brought in the barangay where such workplace or institution is located Rules on execution of judgment in Barangay Proceedings: S417. Chavez Those involving actual residents of different barangays within the same city or munipality shall be brought in the barangay where the respondent or any of the respondents actually resides. Rules on appearance before Barangay Proceedings: S415. File the case before the proper court 2. unless repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or municipal court. LGC The amicable settlement or arbitration award may be enforced by execution by the lupon within 6 months from the date of the settlement.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. the settlement may be enforced by action in the appropriate city or municipal court. except for minors and incompetents who may be assisted by their next of kin who are not lawyers. Repudiate the agreement (S418. at the election of the complainant thereof. Remedies of the parties in case of failure of amicable settlement before the lupon: 1. have the force and effect of a judgment of said court. LGC) 3. All disputes involving real property or any interest therein shall be brought in the barangay where the real property or the larger portion thereof is situated Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study. File a petition before the MTC to nullify the agreement (basis?) Effect of Amicable Settlement and Arbitration Award: S416.

M2D S1j OR amend the complaint (?) Jurisdiction IF. court has no jurisdiction. if real property is involved. computed from his receipt of the notice of the denial. patay (?). remedy of defendant? R16 S4 states that if the motion is denied. Undergone Barangay Conciliation Proceedings NOTE: If the case undergone Barangay conciliation proceedings first. movant shall file his answer within the balance of the period granted by Rule 11 to which he was entitled at the time of serving his motion. and when the decision is adverse.State R16 S4 (yung BUONG SAGOT na Gusto ni Boss Atty Tan) ** In between Barangay conciliation and filing of complaint.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Proceed with the trial. M2D R16 S1b (importance of knowing BP129 as amended by RA7691 Rules on Jurisdiction) Granted. o There is need to register it with the register of deeds Motion to dismiss was granted.Refile Denied. II. remedy of plaintiff? Re file the case with the certification of having undergone Barangay conciliation proceedings. Motion to dismiss was denied. Chavez condition precedent has not been complied with. or can file notice of lis pendens Notice of Lis Pendens “buyer beware” Notice to buyer of existence of an adverse claim o It is not a pleading Summary Procedure: Cases covered: 1. Where AF are awarded. file an appeal raising as error the ground for denial of the motion to dismiss. When the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. there must be a specific allegation in the complaint that there is compliance with Barangay Conciliation proceedings Pag wala. as the dismissal is without prejudice. the same shall not exceed 20k 22 . COMPLAINT Complaint (R6 S3) The complaint is the pleading alleging the plaintiff’s cause or causes of action. but not less than 5 days in any event. plaintiff can file adverse claim over the property. irrespective of the amount of damages or unpaid rentals sought to be recovered. file petition for certiorari under Rule 65. All cases of FE and UD.

with respect to SMALL CLAIMS CASES. Failure to comply with Barangay Conciliation Proceedings HOWEVER. All other civil cases. if Venue R4 S4 1. Lack of jurisdiction over the person of the defendant 3. Lack of jurisdiction over the subject matter of the claim 2. Chavez 2.. and the action affects the personal status of the plaintiff or any property of said defendant located in the Philippines. The parties have validly agreed in writing 23 . Civil cases not higher than 100kSubject to the Rule on Small Claims GENERAL RULE on Summary Procedure: No Motion to Dismiss is allowed (Prohibited Pleading) EXCEPT: 1. except probate proceedings. where the defendant or any of the defendants resides.. where the total amount of the plaintiff’s claim does not exceed 100k OMM or 200k MM exclusive of interests and costs (as amended by AM 2-11-9-SC) Can be subject to stipulation of the parties State: Rules on venue R4 S1 Actions affecting title to or possession of real property or interest therein shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved or a portion thereof is situated. Forcible entry and unlawful detainer actions shall be commenced and tried in the MTC of the municipality or city wherein the real property involved or a portion thereof is situated.NOTE: Rule 4 SHALL NOT APPLY. or in case of a non resident defendant he may be found at the election of the plaintiff. the action may be commenced and tried in the court of the place where the plaintiff resides. or where the property or any portion thereof is situated or found EXCLUSIVITY OF VENUE.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. R4 S2 All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides. R4 S3 3. ABSOLUTE RULE: motion to dismiss is not allowed Reason: defeats the purpose of Small Claims Proceedings If any of the defendants does not reside and is not found in the Philippines.

Certiorari Rule 65 is the proper remedy Motion to dismiss was denied. B lives in Manila. When the decision is adverse. Following Rule 4 S1. being the place where the property or portion thereof is situated. Exclusive venue is stipulated Atty Tan’s comment: Rule 4 of the Rules of Court did not provide for MAY. because the order of dismissal is without prejudice (R16).can be subject of agreement. Then. and that the suit can be filed somewhere else other than what S1 provides? (Parang ok lang sana kung concern e personal action under R4 S2.) Seems there is a loophole in Rule 4 The motion was granted (court issues not a judgment but an ORDER). it means that Rule 4 S1 can be the subject of agreement. However. Remedy for defendant? Rule 16 S4 File an answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion but not less than 5 days in any event. provided that the requisites of R4 S4 as to exclusivity of venue are complied with So. but SHALL Suppose. If the denial of the motion is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. file petition for certiorari under Rule 65.. If the venue is permissive. Chavez 2. EXCEPT: if there exists grave abuse of discretion amounting to lack or excess of jurisdiction. Real property is subject of dispute (real action). the parties can exclusively agree that the venue can be filed in Baguio. the suit should be filed in Davao. The agreement in writing was made before the filing of the action 3. go to trial. computed from his receiving of notice of denial. the real property is located in Davao. or entities authorized by law may be parties in a civil 24 . Then the venue is in addition to the rules on venue Motion to dismiss on the ground of improper venue IS A PROHIBITED PLEADING under the Rules on Summary Procedure.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E.. Remedy? I will refile the case in the court of the proper venue. and more so in Small Claims Remedy: raise the ground as an affirmative defense Action was filed in the wrong venue: I will file motion to dismiss under R16 S1c on the ground that the venue is improperly laid Parties (R3 S1) Only natural or juridical persons. A lives in Pasay. pero venue of REAL ACTION CAN BE SUBJECT OF AGREEMENT?! Labo ata. file an appeal raising as error the denial of the motion to dismiss. Counsel for plaintiff.

Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. or for a complete determination or settlement of the claim subject of the action (R3 S8) 25 . or the party entitled to the avails of the suit. or the 3rd 4th etc party plaintiff. or the 3rd 4th etc party defendant. or any other relief in A necessary party is a party who is not indispensable but who ought to be joined as a party if complete relief is to be accorded as to those already parties. the defendant in the counterclaim. every action must be prosecuted or defended in the name of the real party in interest(R3 S2) - Plaintiff A person having an interest in the matter of the action or in obtaining the relief demanded Defendant A person claiming an interest in the controversy or the subject thereof adverse to the plaintiff Indispensable Party An indispensable party is a party in interest without whom no final determination can be had of an action who shall be joined either as plaintiff or defendant (R3 S7) Necessary Party 3rd party plaintiff A defending party who may with leave of court file against a third person not party to the action called the 3rd 4th etc party defendant a claim for contribution. The term defendant may refer to the original defending party. cross claimant. Plaintiff includes: Counter counterclaimant Counter cross claimant respect of his opponent’s claim (R6 S11) Cross Claimant A party to an original action who has a claim against a co party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein (R6 S8) Defendant includes: Defendant in counter counterclaim Defendant in counter cross claim An unwilling co plaintiff or one who should be joined as plaintiff but refuses to give consent thereto (R3 S10) A person necessary to a complete determination or settlement of the questions involved therein Real Party In Interest A real party in interest is the party who stands to be benefited or injured by the judgment in the suit. indemnity. subrogation. the counterclaimant. The term plaintiff may refer to the claiming party. Chavez action. Unless otherwise provided by law or these rules. the cross defendant.

Then. proceed with the trial. but those whose interests are so far separable that final decree can be made in their absence without affecting them (Quisumbing vs CA GR 93335 9/13/1990) Parties who are required to be joined as co parties in suits by or against another party as may be provided by the applicable substantive law or procedural rule EXAMPLE: Spouses. Chavez Who is a proper party? A proper Party is the same as a necessary party. However.refile Denied: I will file an answer within the balance of the period prescribed by Rule 11 to which i am entitled at the time of serving my motion. or for a complete determination or settlement of the claim subject of the action (R3 S8) Party those presence is necessary to adjudicate the whole controversy.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. The beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest.husband and wife shall sue or be sued jointly. then I will file petition for certiorari under Rule 65. except as provided by law (R3 S4) Quasi Party Parties in whose behalf a class or representative suit is brought Not a real party in interest: Remedy? Representative party R3 S3 Party acting in a fiduciary capacity. computed from my receipt of notice of denial. It may be: Trustee of an express trust Guardian Executor Administrator A party authorized by law or these rules o (agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal) MOTION TO DISMISS on the ground of failure to state cause of action Granted. Right to relief arises out of the same transaction or series of transactions Pro Forma Party 26 . JOINDER OF PARTIES Requisites: 1. if the denial is tainted with GAD amounting to lack or excess of jurisdiction. a party who is not indispensable but who is ought to be joined as a party if complete relief is to be accorded as to those already parties. but not less than 5 days in any event. In case of adverse decision I will appeal the judgment and assign as error the denial of the motion to dismiss.

Non joinder/Misjoinder of parties. if the denial is tainted with GAD amounting to lack or excess of jurisdiction. in the alternative or otherwise. Such joinder is not otherwise proscribed by the provisions of the rules on jurisdiction and venue R3 S6 All persons in whom or against whom any right to relief in respect to or arising out of the same or series of transactions is alleged to exist. remedy: M2D R16 S1g. either jointly. Correlative obligation the part of defendant to respect plaintiff’s legal right 3. Defendant violates plaintiff’s legal right in a manner contrary to law. Chavez 2. amend pleading Denied: I will file an answer within the balance of the period prescribed by Rule 11 to which i am entitled at the time of serving my motion. may.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. proceed with the trial. except as otherwise provided in these rules. public policy *STATE ALL CAUSES OF ACTION in the PLEADING! IF NOT. public order. severally. good customs. as many causes of 27 . morals. computed from my receipt of notice of denial. Then. join as plaintiffs or be joined as defendants in one complaint. 4. Jurisdiction over plaintiffs and defendants can be obtained Act or omission by which a party violates a right of another (R2 S2) 3. However. In case of adverse decision I will appeal the judgment and assign as error the denial of the motion to dismiss. where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action. Plaintiff exercises a legal right 2. There is question of law or fact common to all plaintiffs or defendants What are the elements of a cause of action? 1. remedy: Amendment of the pleading (Rule 3 in relation to Rule 10 Cause of Action Joinder of Causes of Action (R2 S5) A party may in one pleading assert. but not less than 5 days in any event. or in the alternative.not a ground for motion to dismiss IF so. but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest.failure to state cause of action GRANTED: refile. then I will file petition for certiorari under Rule 65.

. the filing of one or a judgment upon the merits in any one is available as a ground for dismissal of the others. Expropriation (R67) 7. Declaratory Relief (R63) 3. Forcible Entry and Unlawful Detainer (R70) 10. CoA (R64) 4. Interpleader (R62) 2. C. Prohibition. Review of Judgments and Final orders or resolutions of COMELEC. The joinder shall not include special civil actions and actions governed by Special Rules Special Civil Actions: 1. remedy? File a motion to amend the complaint (as a matter or right before a responsive pleading is filed. Where the claims in all causes of action are principally for recovery of money. the 28 . Foreclosure of Real Estate Mortgage (R68) 8. sue in alternative / either or D. Certiorari. Chavez action as he may have against an opposing party. the aggregate amount claimed shall be the test of jurisdiction If you are counsel for plaintiff. Partition (R69) 9.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Contempt (R71) INCLUDES: SPECIAL PROCEEDINGS (SEGTARHHCVJCDC +) Sum of money + Foreclosure of Mortgage = CANNOT BE JOINED! (latter is a special civil action) Hence. or with leave of court after a responsive pleading is filed if the amendment is substantial—Here. subject to the following conditions: A. Mandamus (R65) 5. di ko alam kung substantial to. Where the claims pertain to different venues or jurisdictions. Quo Warranto (R66) 6.) – R10 S2 and 3 Splitting a Single Cause of Action: It is the act of dividing or indivisible cause of action into several causes of actions and bringing several actions thereon R2 S3 A party may not institute more than one suit for a single cause of action R2 S4 If 2 or more suits are instituted on the basis of the same cause of action.. and the causes of action are not joined. That the party joining the causes of action shall comply with the rules on joinder of parties joinder shall be allowed in the RTC provided that it falls within the jurisdiction of said court and the venue lies therein B.

Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez

Supposing, the plaintiff split a single cause of action, remedy? As defendant, I will file a motion to dismiss on the ground of litis pendencia or res judicata (R16 S1 e or f) GRANTED, remedy: APPEAL (dismissal is with prejudice) DENIED: I will file an answer within the balance of the period prescribed by Rule 11 to which i am entitled at the time of serving my motion, but not less than 5 days in any event, computed from my receipt of notice of denial. Then, proceed with the trial. In case of adverse decision I will appeal the judgment and assign as error the denial of the motion to dismiss. However, if the denial is tainted with GAD amounting to lack or excess of jurisdiction, then I will file petition for certiorari under Rule 65.

respective participation in the case shall be indicated.

R7 S2 The body of the pleading shall set forth its: 1. Designation 2. Allegation of the claims or defenses 3. Relief prayed for 4. Date of the pleading

Paragraph The allegations in the body of a pleading shall be divided into paragraphs so numbered as to be readily identified each of which shall contain a statement of a single act of circumstances so far as can be done with convenience. A paragraph may be referred to by its number in all succeeding pleadings. Headings When 2 or more causes of action are joined, the statement of the first shall be prefaced by the words first cause of action, of the second by second cause of action and so on for the others. When one or more paragraphs in the answer are addressed to one of several causes of action in the complaint, they shall be prefaced by the words answer to the second cause of action or answer to the second cause of action and so on; and when one or more paragraphs are addressed to several causes of action, they shall be prefaced by words to that effect. Relief

PLEADING / PARTS OF A PLEADING Rule 7 S1 The caption sets forth: a. Name of the court b. Title of the action c. Docket number if assigned The title of the action indicates the names of the parties. They shall be named in the original complaint or petition. But in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. Their

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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez

The pleading shall specify the relief sought, but it may add a general prayer for such further or other relief as may be deemed just and equitable. Date Every pleading shall be dated

R7 S4 Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified, or accompanied by affidavit. A pleading is verified by an affidavit that 1. the affiant has read the pleading

R7 S3 Every pleading must be signed by the party or counsel representing him stating in either case his address which should not be a post office box. The signature of counsel constitutes a certification by him that 1. he has read the pleading, 2. that to the best of his knowledge, information or belief there is good ground to support it, and 3. that it is not interposed for delay An unsigned pleading produces no legal effect However, the court may, in its discretion, allow such deficiency to be remedied if it appear that the same was due to mere inadvertence and not intended for delay. 1. Counsel who deliberately files unsigned pleading 2. Signs a pleading in violation of these rule, 3. or alleges scandalous or indecent matter therein, 4. Or fails to promptly report to the court a change of his address, shall be subject to appropriate disciplinary action

2. that the allegations therein are true and correct of his personal knowledge or based on authentic records A pleading required to be verified which contains a verification based 1. on information and belief or 2. upon knowledge, information and belief 3. or lacks a proper verification shall be treated as an unsigned pleading

Is a jurat a part of a pleading? The general rule is that pleadings need not be verified. However, if the law or the Rules require that a pleading be verified, verification is done by way of affidavit. In an affidavit, there is a need for jurat to be present. Hence, in a verified pleading, a jurat becomes part of a pleading.

What are the pleadings that need to be verified? Petition for relief from judgment or order (R38 S3)

Petition for review from RTC to CA (R42 S1)

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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez

Interpleader (R62) Petition for review from CTA and q-j agencies to the CA (R43 S5) Appeal by certiorari from the CA to SC (R45 S4)

Declaratory Relief and Similar Remedies (R63)

Petition for annulment of judgment or final orders and resolutions (R47 S4)

Review of Judgments and Final Orders or

Resolutions of COMELEC, CoA (R64) Complaint for injunction (R58 S4) Petitions for certiorari, prohibition, mandamus (R65) Application for appointment of receiver (R59 S1) Quo Warranto (R66) Application for support pendent lite (Rule 61 S1) (all initiatory pleadings) Original Complaint Foreclosure of Real Estate Mortgage (Rule 68)

Expropriation (R67)

Permissive Counterclaim Partition (R69) Cross Claim Forcible Entry and Unlawful Detainer (R70) 3rd 4th etc party complaint Contempt (R71) Complaint in intervention (all Special Proceedings) Settlement of Estate of Deceased (R73-90)

Petition (all Special Civil Actions)

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Chavez Escheat (R91) Cancellation or Correction of Entries in the Civil Registry (R108) Petition for guardianship of minors (AM __-__-__-SC) Petition for guardianship of incompetents (R92-97) Voluntary Dissolution of Corporations (Corporation Code ) Petition for custody of minors in relation to habeas corpus. ) Trusteeship (R98) Constitution of the Family Home (Family Code. ) Petition for Domestic Adoption (Domestic Adoption Act. ) Declaration of Absence and Presumptive Petition for inter country adoption (Inter Country Adoption Act. ) Death (R107 in relation to Civil and Family Code ) Habeas Corpus (R102) Petition for declaration of Nullity and Annulment of Marriage ( ) Writ of Amparo ( ) Petition for legal separation ( ) Writ of Habeas Data ( ) Pleadings not required be verified in the manner and form prescribed by S4 of this Rule but the same must be under oath: ) Change of Name (R103) Clerical Error Act ( 32 .Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. AM __-____-SC) Judicial Approval of Voluntary Recognition of Minor Natural Children (Family Code.

mistake. save for following instances: Answer to allegations of usury in a complaint to recover usurious interests (R8 S11) Motion for new trial on the ground of fraud. Chavez Denial of genuineness and due execution of actionable document (R8 S8) Third party claim (R39 S16) Proof required of a redemptioner (R39 S30) Denial of allegations of usury (R8 S11) Motion for preliminary attachment (R57 S3) Motion to set aside default order (R9 S3b) Motion for dissolution of preliminary injunction (R58 S6) Answer to written interrogatories (R25 S2) Application for writ of replevin (R60 S2) Answer to request for admission (R26 S2) Claim against estate of a decedent (R86 9) The following pleadings or motion with affidavit or affidavits of merit: Motion to postpone for absence of evidence (R30 S3) Motion for new trial on the ground of newly discovered evidence in criminal cases (R121 S4) Motion to postpone for illness of a party or counsel (R30 S4) Motion for summary judgment or opposition thereto (R35 S1. or excusable negligence or opposition thereto (r37 S2) When the answer is based on an actionable document (R8 S8) Petition for relief from judgment or order (R38 S3) Answer under the Revised Rules on Summary Procedure 33 .Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. answers need not be verified. accident.3.2.5) Does the answer need to be verified? As a general rule.

How about an authorized representative? Can he verify? Yes. as counsel for plaintiff. but there is no genuine issue because the allegations are deemed admitted. remedy? File for judgment on the pleadings under Rule 34 S1. a complete statement of the present status thereof Who can verify a pleading? A party need not sign the verification. on the ground of admission of material allegations of the adverse party’s pleadings.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Submission of a false certification or non compliance with any of the undertakings therein shall constitute indirect contempt of court without prejudice to corresponding administrative and criminal actions. if there is no such other pending action or claim. he shall report that fact within 5 days therefrom to the court where his aforesaid complaint or initiatory pleading has been filed Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or pleading but shall be cause for dismissal of the case without prejudice. if he should thereafter learn that the same or similar action or claim is filed or is pending. and. R34 S1 Grounds for judgment on the pleadings: Answer fails to tender an issue Answer admits the material allegations of the adverse party’s pleading 2. no such other claim or action is pending therein If the pleading is not verified. The following may sign verification: Party Party’s representative Party’s Lawyer Any person who personally knows the truth of the facts alleged in the pleading 3. to the best of his knowledge.certification against forum shopping Plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading assisting a claim for relief. Ground is based on the fact that an answer is filed. that he has not theretofore commenced any action or filed any claim involving the same issues in any court. tribunal or quasi judicial agency. unless otherwise provided. 1. or in a sworn certification annexed thereto and simultaneously filed therewith. upon motion and after hearing. Chavez Answer in Small Claims Cases R7 S5. if armed with proper authority from the party (Through SPA?) 34 .

to the best of his knowledge. and cause for administrative sanctions. Original complaint Permissive counterclaim Cross claim 3rd 4th etc party complaint Forum Shopping: Forum shopping is an act of malpractice of filing multiple suits in different courts either simultaneously or successively. involving the same parties. direct contempt. the same shall be ground for summary dismissal with prejudice. That he has not theretofore commenced any action or filed any claim involving the same issues in any court.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. a complete statement of the present status thereof 3. he shall report that fact within 5 days therefrom to the court wherein his aforeseaid complaint or initiatory pleading has been filed 3 ways of committing forum shopping: Filing multiple cases based on the same cause of action and with the same prayer the previous not having been resolved (litis pendencia) Filing multiple cases based on the same cause of action and with the same prayer. or in a sworn certification annexed thereto and simultaneously filed therewith: 1. If there is such other pending claim or action. If he should thereafter learn that the same or similar action or claim has been filed or is pending. and asking the courts to rule on the same or related causes and/or to grant the same or substantially the same relief Complaint in intervention Petition What is stated in certification against forum shopping: R7 S5 The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief. Chavez If acts of party or counsel clearly constitute wilful and deliberate forum shopping. the previous having been resolved with finality (res judicata) Filing multiple cases based on same causes of action but with different prayers (splitting cause of action on the ground of litis pendencia or res judicata) Pleadings requiring certification against forum shopping: Initiatory Pleadings States the effects of: (R7 S5) Failure to attach certification against forum shopping 35 . tribunal or quasi judicial agency and. no such other action or claim is pending therein 2.

unless otherwise provided. Remedy is file motion to dismiss R16 S1j. remedy? As plaintiff. Motion to dismiss was granted. and cause for administrative sanctions. i will file notice of appeal under Rule 41. file motion to dismiss under Rule 16 S1j on the ground that a condition precedent has not been complied with. refile the case. and if granted.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Define. plaintiff’s remedy is to refile the case with the required certification. on the ground that the dismissal is without prejudice. Serves as FINAL ORDER. appeal is the proper remedy if motion to dismiss under R16 S1j is granted Counterclaim (R6 S6) Any claim which a defending party may have against an opposing party Compulsory Counterclaim (R6 S7) A counterclaim which being cognizable by the regular courts of justice arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does Remedies in case of failure to attach certification against forum shopping: 36 . and the complaint was dismissed. the same shall be ground for summary dismissal with prejudice. remedy is appeal As counsel for defendant. enumerate. upon motion and after hearing. remedy? As plaintiff. Submission of a falser certification or non compliance of any of the undertakings therein Submission of a false certification or non compliance of any of the undertakings therein shall constitute indirect contempt of court without prejudice to corresponding administrative and criminal actions If the plaintiff committed wilful and deliberate forum shopping. Willful and deliberate forum shopping If the acts of party or counsel clearly constitute wilful and deliberate forum shopping. in the nature of a final order. Chavez Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or pleading but shall be cause for dismissal of the case without prejudice. each pleadings: Complaint (R6 S3) The complaint is the pleading alleging the plaintiff’s cause or causes of action. hence. direct contempt. unless if declared by the court as dismissal with prejudice. hence. hence. because the dismissal is without prejudice.

indemnity. Chavez not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction Answer in intervention (R19 S3) Filed by intervenor if he unites with the defending party in resisting a claim against the latter Permissive Counterclaim (R6 S7) A counterclaim which being cognizable by the regular courts of justice does not arise out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and may require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction Answer (R6 S4) Pleading in which a defending party sets forth his defenses Counter counterclaim (R6 S9) A counterclaim that may be asserted against an original counterclaimant Cross claim (R6 S8) Any claim by one party against a co party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein Counter crossclaim A cross claim which may be filed against an original cross claimant 3rd 4th etc party complaint (R6 S11) A claim that a defending party may. subrogation.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. with leave of court. file against a person not a party to the action. or any other relief in respect of his opponent’s claim Counterclaim Original complaint A vs B Counterclaim Counter Counter Claim Complaint in intervention (R19 S1) Pleading filed by an intervenor if he answers a claim against either or all of the original parties Cross Claim A vs B and C 37 . called a 3rd 4th etc party defendant for contribution.

with leave of court. or in the success of either of the parties.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. or who has an Docket fees are suspended not 38 . or any other relief in respect of his opponent’s claim COMPLAINT IN INTERVENTION Rule 19 Pleading filed by an intervenor if he answers a claim against either or all of the original parties Permissive CC Does not arise out of or is connected with the transaction or occurrence that is the subject matter of the opposing party’s claim Needs verification and certification against forum shopping Docket fee is required to be paid Failure to file answer results in declaration of Compulsory CC Arises out of or is connected with the transaction or occurrence that is the subject matter of the opposing party’s claim Not Intervenor is any person who has a legal interest in the matter in ligitation. subrogation. or who is so situated as to be adversely affected by the distribution or other disposition of property in the custody of the court or of an officer thereof Complaint In intervention A vs B C (or) C wants to be impleaded in the action Third party has legal interest and wants to be impleaded in the suit Requires payment of docket fees Permissive Counterclaim vs Compulsory Counterclaim (Simplified version) THIRD PARTY COMPLAINT Rule 6 A claim that a defending party may. Chavez (Original Complaint) Cross Claim Counter Cross Claim Third Party Complaint A vs B vs C (for CISA) C is impleaded for CISA Third party is impleaded in the suit for CISA Initiatory Pleadings interest against both parties. file against a person not a party to the action. called a 3rd 4th etc party defendant for contribution. indemnity.

same facts. ancillary to the main action for protection and preservation of rights while the main action is pending PROVISIONAL REMEDIES Temporary. same causes of action. auxiliary. ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending 3PC vs Third party claim Third Party Complaint Initiated by way of complaint Filed before the court For CISA Pleading Docket fees are required to be paid Third Party Claim By way of affidavit Filed before the sheriff Terceria Affidavit Not The following are the provisional remedies: 1. Receivership (Rule 59) 4. regardless of which party is successful. Preliminary Attachment (Rule 57) 2. Replevin (Rule 60) 5. Chavez default may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction Not barred even if not set up in the action Initiatory pleading Does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction Barred if not set up in the action Not an initiatory pleading case. PROVISIONAL REMEDIES may be availed of. Support Pendente Lite (Rule 61) NOTE: Not Exclusive! Protection orders Notice to buyer of existence of an adverse claim Provisional orders 39 . would amount to res judicata in the other case Notice A ground for motion to dismiss under Rule 16 Simultaneous or after filing of the original complaint/pleading asserting a claim. Preliminary Injunction (Rule 58) Lis Pendens vs Litis Pendencia Lis Pendens “buyer beware” Litis Pendencia Filing multiple suits in different courts involving same parties. the identity of the 2 cases such that any judgment that may be rendered in one 3. same relief.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E.

detained. or by any other person in a fiduciary capacity. other than moral and exemplary. or any part thereof. In an action against a party who has removed or disposed of his property. has been concealed. broker. Rules on Nullity/Annulment of Marriage/Legal Separation. contract. or clerk. factor. agent. or in the performance thereof Grounds for preliminary attachment (NOTE: TINATANONG SA BAR!) Rule 57 S1 e. Writ of Habeas Data NOTE ALSO: Injunction and replevin can be main actions in themselves an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer. In an action for recovery of a specified amount of money or damages. In an action to recover the possession of property unjustly or fraudulently taken.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. or on whom summons may be served by publication 40 . on a cause of action arising from law. In Witness protection orders See: RA 9262. Preliminary 57) When filed? (R57 S1) At the commencement of the action or at any time before entry of judgment. or disposed of to prevent its being found or taken by the applicant or an authorized person PROVISIONAL REMEDIES A. or an officer of a corporation. in the course of his employment as such. Writ of Amparo. delict or quasi delict against a party who is about to depart from the Phils with intent to defraud his creditors f. quasi contract. when the property. In an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought. a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of judgment that may be recovered in the following cases (See grounds) Attachment (Rule d. or an attorney. In an action against a party who does not reside and is not found in the Phils. or is about to do so with intent to defraud his creditors a. Chavez Production orders b. or converted. Petition for Custody of Minors. or for a wilful violation of duty c. removed.

not a prohibited pleading FE/UD.No Amount 200k MM.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Verified application through Affidavit attached to motion or complaint - Stating the grounds That there is no sufficient security Ordinary Civil Actions. Because under Summary Procedure. Chavez Requirements: (Rule 57 S3) 1. warning on subsequent buyer subject to outcome of the case At any time before judgment By verified motion 41 . By way of motion or by way of complaint Cany you apply for writ of attachment before the MTC? YES.yes 100k.yes When is it necessary to issue summons? 3.no 2. Allegation of the ground necessitating the need for preliminary attachment In case of implementation of preliminary attachment (3rd stage) the 4. In all instances? YES. Posting of bond in an amount to be determined by the court Stages: Publication Order/Execution o BOTH ARE EX PARTE How is attachment applied for? By way of complaint? EITHER motion? Or by way of - Implementation o With Summons HOW? At the commencement of the complaint By verified complaint How attached? Garnishment Levy on attachment o Annotated on back of title.

the discharge shall be limited to the excess Order of denial of motion to quash: INTERLOCUTORY. agency. TRO.appeal Can preliminary injunction be issued ex parte? Writ of Preliminary Attachment Covers real or personal property At the commencement of the action or at any time before entry of judgment Amount of the bond is the value of the obligation (fixed by Writ of Replevin Covers only personal property Commencement of the action or at any time before answer Amount of the bond is double the amount of the NO (?).interlocutory Remedy: certiorari If FJ. or proceeding whereby a party is ordered to do or refrain from doing a particular act That the writ was improperly or irregularly issued or enforced That the bond is insufficient - Preliminary Injunction An order granted at any stage of an action or proceeding prior to the judgment requiring a party or a court. Chavez Remedy in case of issuance of writ of attachment: R57 S12 and S13 S12. process.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Preliminary Injunction (Rule 58) Injunction Judicial writ. R41 S1b Preliminary Mandatory Injunction An order requiring the performance of a particular act or acts Purpose of the bond: To answer for damages incurred by the adverse party in case writ of attachment is improperly or irregularly enforced Denial. hence.Motion to discharge attachment upon giving of counterbond S13. requiring TRO An order to restrain particular act or acts of a party for a limited period of time 42 .Motion to quash the attachment on the ff grounds: writ of the court) May be resorted to even if property is in the possession of a third person personal property Can be sought only when defendant is in actual possession of the property B. or a person to refrain a particular act or acts If the attachment is excessive. o o M4R R65 S4 Certiorari R65 S1.yes Writ of preliminary injunction A writ granted at any stage of action or proceeding prior to the judgment or final order.

That the applicant is entitled to the relief demanded. Must be verified and accompanied by an affidavit of merit if the ground for the motion is FAME 3. Grounds upon which it is based and c. That the commission.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. agency. court. either for a limited period or perpetually reasonable redress can be had therefore in court of law or where there is no standard by which their amount can be measured with reasonable accuracy How do you avail? By way of MOTION or by way of VERIFIED COMPLAINT IF by verified complaint. or in requiring the performance of an act or acts. Relief sought to be obtained b. or a person is doing. then by an application for relief complying with the Rules on Motion: 1. some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding. and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of. In writing. continuance. or is attempting to do. It may also require performance of a particular act or acts. Motion is set for hearing by applicant (R15 S4) 43 . at the commencement of the action or before entry of judgment. or non performance of the act or acts complained of during the litigation would probably work injustice to the applicant. If required by these Rules or necessary to prove facts alleged therein. [except those made upon in open court or in the course of a hearing or trial ] (R15 S2) b. shall be supported by supporting affidavits and other papers Irreparable damage and injury Of such constant and frequent recurrence that no fair or 4. or is procuring or suffering to be done. or 2. Chavez a party or a court. threatening. agency or person from a particular act or acts. Shall state the following (R15 S3) c. That a party. and tending to render the judgment ineffectual a. INCORPORATED IN THE BODY OF THE COMPLAINT If by motion. in which case it shall be known as a preliminary mandatory injunction GROUNDS for preliminary injunction (R58 S3): a.

The motion shall be considered as not filed 7. 4. such mode resorted to must be accompanied by a written HOW? At the commencement of the complaint By verified complaint At any time before judgment By verified motion Status Quo Order Order issued by the court to maintain the last. 6 of Rule 15? 1. or in lieu thereof. If service is by registered mail. actual. If the motion is not served to the other party by personal service. It does not interrupt the running of the prescriptive/reglementary period for the filing of the requisite pleading 3. specifying the time and date of hearing which must not be later than 10 days after the filing of the motion (R15 S5) explanation why the service or filing was not done personally. 5. the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. Notice of hearing addressed to all parties concerned. proof shall be made by such affidavit and registry receipt issued by the mailing office The registry return card shall be filed immediately upon its receipt by the sender. place. It will be ground for denial of the motion 4. and manner of service - If by service is by ordinary mail. 8. uncontested condition of the parties before the action or proceeding 44 . Motion and notice of hearing must be served at least 3 days before the date of hearing (3 day notice rule) Effect of failure to comply with Sections. *the motion shall be treated as a worthless piece of paper which the clerk of court has no right to receive and the court has no authority to act upon (mere scrap of paper) 2. proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with S7 of this Rule. Chavez 5. peaceable. A violation of this Rule may be cause to consider the paper as not filed (R13 S11) 6.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Proof of service of the motion R13 S13 Proof of personal service shall consist of: Written admission of party served or Official return of the server or Affidavit of the party serving containing a full statement of the date.

A restraining order issued by the Supreme Court or a member thereof shall be effective until further orders. if issued by the Court of Appeals or a member thereof. the Court of Appeals. subject to the provisions of the preceding sections. within the same period. why the injunction should not be granted.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. including the original seventy-two hours provided herein. Chavez TRO. the Sandiganbyan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court. Thereafter. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days. board. the temporary restraining order is deemed automatically vacated. if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury. Within the twenty-day period. the executive judge of a multiplesala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance. the temporary restraining order shall be effective for sixty (60) days from service on the party or person sought to be enjoined. the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. or quasi-judicial agency shall decide the main case or petition within six (6) months from the issuance of the writ. The effectivity of a temporary restraining order is not extendible without need of any judicial declaration to that effect. the court must order said party or person to show cause at a specified time and place. may issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined. Preliminary injunction not granted without notice.order restraining particular act or acts of a party for a limited period of time. 5. but shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith. The court shall also determine. within the aforesaid seventy-two (72) hours. and no court shall have authority to extend or renew the same on the same ground for which it was issued. exception.AM 7-7-12) Sec. can be issued ex parte (RULE 58. In the event that the application for preliminary injunction is denied or not resolved within the said period. the court to which the application for preliminary injunction was made. l The trial court. officer. However. except as herein provided. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice. and accordingly issue the corresponding order. However. “Lifetime” (R57 S5 in relation to AM 7-7-12) 45 . No preliminary injunction shall be granted without hearing and prior notice to the party or persons sought to be enjoined. whether or not the preliminary injunction shall be granted.

Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. to prevent defendant from committing further acts of dispossession against plaintiff.  But shall immediately comply with provisions of the next preceding section as to service of summons and documents to be served Can the court issue injunction ex parte? NO!. TRO. w/n P injunction should be granted.requires notice and hearing Can MTC issue TRO? Ordinary Civil Actions.order restraining acts of a party for a limited period of time 20 days 72 hours (ex parte). applicant will suffer grave injustice and irreparable injury. o Court to order said party or person to show cause at a specified time and place why injunction should not be granted. in accordance with the provisions of R58 thereof. judge to conduct summary hearing to determine whether the TRO can be extended until application for preliminary injunction can be heard.. o Total period of effectivity of TRO shall NOT EXCEED 20 DAYS. Chavez - Effective only for a period of 20 DAYS from service on the party or person sought to be enjoined. and accordingly issue the corresponding order SC or member issues: effective until further orders AGAIN. the latter may issue a writ of preliminary mandatory injunction to restore plaintiff in possession if the court is satisfied that - Within the 72 hours. A possessor deprived of possession through Fe or UD may. The court shall decide the motion within 30 days from filing thereof R70 S20 Upon motion of plaintiff. executive judge of multi sala court or presiding judge of single sala court may issue EX PARTE TRO o Effective for only 72 HOURS from issuance. within 10 days from perfection of appeal to the RTC.YES R70 S15 Court may grant preliminary injunction. within 5 days from filing of complaint.. including the original 72 hours provided therein CA issues: effective for 60 DAYS from service on the party or person sought to be enjoined 46 . present a motion in the action for FE UD for issuance of writ of preliminary mandatory injunction to restore him in his possession.extreme urgency 20 days non extendible - IF the matter is of EXTREME URGENCY.Pwede Forcibly Entry / UnlawFul Detainer.

would cause irreparable damage to the party or person enjoined while applicant can be fully compensated for such damages he may suffer Other requirements for quashal of writ: 1.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. When prejudicial involved in the case question is 5. Chavez - defendant’s appeal is frivolous or dilatory. except in: Case falling under Summary Procedure. Prohibition Special civil action Rule 65 Petition in case a person exercising J.preliminary mandatory injunction and preliminary prohibitory injunction are allowed Can there be injunction in criminal cases? YES. Ministerial Function acted without jur or with GAD amounting to 47 . or that the appeal of plaintiff is prima facie meritorious 1. if it appears after hearing that although applicant is entitled to the injunction or restraining order. if the claim being 100k (Small Claims). QJ. no. To Prevent the long arm of the law from being vindictive 1. filing of bond in amount fixed by court conditioned that he will pay all damages which applicant may suffer by the denial or dissolution of the injunction or restraining order Denied: M4R Certiorari Rule 65 4. In case of criminal under an invalid law prosecution Can MTC issue preliminary injunction? YES. in case of preliminary injunction with respect to preliminary investigation (general rule. as a case may be. upon showing of insufficiency 2. When there is need for protecting the Constitutional rights of the accused Granted: (Rule 57 S6) quash the writ based on: 3. but the enumerations are the exceptions) Prohibitory Injunction Provisional remedy Rule 58 An order granted at any stage of an action or proceeding prior to the judgment requiring a party or a court. When prejudicial to the rights of the accused - REMEDIES IN INJUNCTION: CASE OF PRELIMINARY 2. EXCEPT: FE and UD o R70. the issuance or continuance thereof. on other grounds upon affidavits of the party or person enjoined 3.

When it appears from the verified application. and that its value is probably insufficient to discharge the mortgage debt. CA 3. or to aid execution when execution has been returned unsatisfied or when judgment obligor refuses to apply his property in satisfaction of the judgment or otherwise to carry the judgment into effect d. that the party c. or to dispose of it according to the judgment. or 48 . Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving. Chavez agency. Receivership (Rule 59) - Provisional remedy to preserve a property subject of litigation from further loss. or that the parties have so stipulated in the contract of mortgage C.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. to preserve the property during the pendency of an appeal. After judgment. and such other proof as the court may require. or materially injured unless a receiver be appointed to administer and preserve it Directed against a party Provisional remedy By way of motion b. wastage. and that such property or fund is in danger of being lost. damage. administering. dissipation for the protection of another person Where applied for? 1. or a person to refrain a particular act or acts lack or excess of jurisdiction. When it appears in an action by the mortgagee for the foreclosure of mortgage that the property is in danger of being wasted or dissipated or materially injured. removed. Court where action is pending 2. SC Grounds: (R59 S1) a. for respondent to desist from further proceedings Mandamus Special Civil Action Rule 65 Requires performance of a ministerial act or to desist from excluding another from a right or office (ministerial) Directed against a Judicial or quasi judicial bodies exercising ministerial functions Original action By way of petition Mandatory Injunction Provisional Remedy Rule 58 An order requiring the performance of a particular act or acts applying for the appointment of receiver has an interest in the property or fund which is the subject of the action or proceeding.

Verified motion in a complaint / Verified complaint at commencement of action (R59 S1) R59 S6 Subject to the control of the court in which the action or proceeding is pending. in such capacity. Bring and defend.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. To compound for and compromise the same IF after judgment. To collect debts due to himself. except in Small Claims General powers of receiver: REQUIREMENTS: 1. Take and keep possession of the property in controversy 3. Receivership with appointment of receiver: pwede Receivership with MTC: pwede. corporation to which he is the receiver 5. while receivership of corporation is an original action applicable only to corporations under the Corporation Code of the Philippines 7. a receiver shall have the power to 1. property. as receiver or to the fund. By verified complaint 4. person. By way of motion 6. Oath and Bond by receiver to faithfully discharge of his duties in an action or proceeding and obey court orders IF pending appeal. the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said court. To pay outstanding debts 49 . estate. Bond by applicant in an amount to be fixed by the court to pay such person against whom application is presented to pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause(R59 S2) 2. To receive rents 3. actions in his own name 2. To make transfers NOTE: Receivership as provisional remedy applies to all civil actions. Chavez disposing of the property in litigation During pendency of appeal.

motu proprio or on motion of either party. or is entitled to the possession thereof RTC or MTC (300k-400k OMM MM higher lower) 2. and belief c. alleging cause of detention thereof according to the best of his knowledge. or apportioned. after due notice to all interested parties and hearing. then it is an action for recovery of unlawfully withheld personal property in the possession of another Jurisdiction/Venue: Termination of receivership. To do such acts respecting the property as the court may authorize However. 3. That the property is wrongfully detained by adverse party. compensation of receiver R59 S8 Whenever the court. settle the accounts of the receiver. REQUIREMENTS: (R60 S2) 1. direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them. and order the discharge of the receiver from further duty as such The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez 8. particularly describing it. to be taxed as costs against the defeated party. shall determine that the necessity for receiver no longer exists. as justice requires. it shall. That applicant is the owner of the property claimed. To divide the money and other property that shall remain among the persons legally entitled to receive the same D. information. Verified Application (by affidavit)/complaint before service of answer Facts: a. b. funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action. 1. REPLEVIN (Rule 60) 9. No action may be filed by or against a receiver without leave of the court which appointed him A provisional remedy for recovery of personal property / reacquisition of personal property subject of litigation Can be a provisional remedy or a main action If a main action. That the property has not been distrained or taken for a tax assessment or a fine pursuant to 50 .

Chavez law. that it is exempt from such seizure or custody (Exception: Criminal cases falling under MTC jurisdiction?) When available? Action for support Relief sought applicant is support for d. and for payment to adverse party of such sum as he may recover from the applicant in the action - - S1. SUPPORT PENDENTE LITE (Rule 61) - Amount of support provisionally fixed by the court in favour of the person or persons entitled thereto during the pendency of an action for support IMMEDIATELY EXECUTORY! Where filed? FAMILY COURT Why not in MTC? Because action for support is incapable of pecuniary estimation  51 . or otherwise placed under custodia legis.Application Denied.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. or seized under a writ of execution or preliminary attachment. or at any time prior to the judgment or final order. or if so seized. Posting of bond by applicant in double the value of the property stated in the affidavit mentioned. for return of the property to adverse party if such return be adjudged. The actual market value of the property - Nullity of marriage Annulment of marriage Legal separation Custody of minors in relation to habeas corpus Criminal cases: o o Rape RA9262 2. REMEDY: Counterbond property double the amount of At the commencement of the proper action or proceeding. or other authentic documents in support thereof E. o a verified application for support pendentee lite may be filed by any party  stating the grounds for the claim and the financial conditions of both parties. depositions. and commenced by affidavits.

the court shall fix o the amount of money to be provisionally paid. If the application is granted. and terms of payment or mode for providing the support.  taking into account the necessities of the applicant and the resources or means of the adverse party. issue an order of execution against him.  If the application is denied. or other authentic documents in support thereof. and shall render such order as justice and equity may require. or 2. the principal case shall be tried and decided as early as possible. the application shall be set for hearing not more than 3 days thereafter The facts in issue shall be proved in the same manner as if proved for evidence on motions. motu proprio or upon motion. o The comment shall be verified and shall be accompanied by affidavits. proper resolution of the question involved. o without prejudice to liability for contempt. depositions.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. 52 . a. After the comment is filed. S5. o who shall have 5 days to comment thereon  unless a different period is fixed by the court upon his motion. having due regard to the probable outcome and such other circumstances as may aid in the When the person ordered to give support pendente lite refuses or fails to do so.enforcement of order If the adverse party fails to comply with an order granting support pendente lite.Hearing 1. after due notice and hearing in the same case. the court shall. Chavez S2.Order The court shall determine provisionally 1. after the expiration of the period for its filing. his S4.  S3. the pertinent facts. or such other forms of support as should be provided. any third person who furnished that support to the applicant may.Comment A copy of the application and all supporting documents shall be served upon adverse party.

Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez

o

obtain a writ of execution to enforce his right of reimbursement against the person ordered to provide such support.

-

it shall order the recipient thereof to return to the former the amounts already paid with legal interest from the dates of actual payment, o without prejudice to the right of recipient to obtain reimbursement in a separate action from the person legally obliged to give the support.

S6- Support in criminal cases In criminal cases 1. where the civil liability includes support for the offspring as a consequence of the crime 2. and civil aspect thereof has not been waived, reserved, or instituted prior to its filing, a. the accused may be ordered to provide support pendente lite to the child born to the offended party allegedly because of the crime. The application therefore may be filed successively by the offending party, her parents, grandparents, or guardian and the state in the corresponding criminal case during its pendency, o in accordance with the procedure established in this Rule.

Should recipient fail to reimburse said amounts, the person who provided the same may likewise o seek reimbursement thereof in a separate action from the person legally obliged to give such support.

Failure of action for support pendente lite, REMEDY: move for motion for execution

DENIED, file petition for indirect contempt, for disobedience to lawful order of the court

SPECIAL CIVIL ACTIONS (discussed in this stage because initiatory pleadings are filed, by complaint or by petition, as the case may be) SCA initiated by complaint - Interpleader (62) - Foreclosure of mortgage (68) - Forcible entry SCA initiated by petition - declaratory relief (62) - review of adjudication of comelec, coa (64)

S7- Restitution When the judgment or final order of the court finds that the person who has been providing support pendente lite is not liable therefor,

53

Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez

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/ UD (70) Partition (69) Expropriation (67)

-

c, m, p (65) qw (66) contempt (71)

-

Initiated by way of complaint

S1- When proper Whenever conflicting claims upon the same subject matter o are or may be made against a person who claims no interest whatever in the subject matter or an interest in which in whole or in part is not disputed by claimants,  he may bring an action against conflicting litigants to compel them to interplead and litigate their several claims among themselves

1. Interpleader (62) 2. Declaratory Relief and other similar remediesv (63) 3. Review of judgments, final orders, resolutions of CoA, COMELEC (64) 4. Certiorari, (65) Prohibition, Mandamus

o

5. Quo Warranto (66) 6. Expropriation (67) 7. Foreclosure of Real Estate Mortgage (68) 8. Partition (69) 9. Forcible (70) Entry/Unlawful Detainer

10. Contempt (71) Governed by Special Rules, Rules on ordinary civil actions apply in a suppletory manner (OR is it the other way? R1 states governed by rules on ordinary civil actions, subject to specific rules prescribed in a special civil action) Examples: VENUE MOTION TO DISMISS DEMURRER TO EVIDENCE PARTS OF A PLEADING

NOTE: Person in possession has no legal interest

Interpleader Rule 61 Without leave of court Original / Special Civil action Filed by complaint for interpleader

Intervention Rule 19 With leave of court Ancillary to main action If for plaintiffcomplaint in intervention If for defendantanswer in intervention Before judgment

At any time JURISDICTION:

INTERPLEADER (Rule 62)

RTC or MTC 20-50 real 300-400 personal higher lower

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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez

VENUE: Real- R4 S1 Personal- R4 S2

from the notice of denial. (See Rule 16 S4)

S5- Answer and other pleadings S2- Order Upon filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another. Each claimant shall file his answer setting forth his claim within 15 days from service of the summons upon him, serving a copy thereof upon each of the other conflicting claimants, o who may file their reply thereto as provided in these Rules.

If the interests of justice so require, the court may direct in such order o that the subject matter be paid or delivered to the court.

If any claimant fails to plead within the time therein fixed, the court may, on motion, declare him in default and thereafter render judgment barring him from any claim in respect to the subject matter.

S3- Summons Summons shall be served upon the conflicting claimants, together with a copy of the complaint and order.

The parties in an interpleader action may file counterclaims, cross claims, 3rd party complaints and responsive pleading thereto, as provided in these Rules.

S4- Motion to dismiss Within the time for filing an answer, each claimant may file motion to dismiss on the ground of impropriety of the interpleader action or on other appropriate specified in Rule 16. grounds S6- Determination After the pleadings of the conflicting claimants have been filed, and pre trial has been conducted in accordance with these Rules, the court shall proceed to determine their respective rights and adjudicate their several claims.

-

The period to file the answer shall be tolled and if the motion is denied, the movant may file his answer within the remaining period, which shall not be less than 5 days in any event, reckoned

In case of adverse Resolution, Appeal pursuant to R40-42

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if not. as - consolidate ownership In case of pacto de retro sale or foreclosure of mortgage. file for consolidation of ownership under this Rule 56 . ordinance. then not subject here NOTE: DECLARATORY RELIEF is the only civil action (special vis a vis ordinary) that can be filed even before breach or violation thereof JURISDICTION/VENUE: Declaratory Relief: RTCincapable estimation of pecuniary Queting of title: MTC or RTC 20-50 OMM MM lower higher determining validity of: o o o o o statute. regulation. will. contract. actions incapable of pecuniary estimation Requirements: S2.RTC EO Jur. annulment of contract quiet title to real property remove clouds therefrom or NO. or other written instrument.Parties All persons who have or claim any interest which would be affected by the declaration shall be made parties. not necessarily owner agad. and no declaration shall. executive order. or any other regulation governmental Consolidation of ownership: RTCincapable estimation of pecuniary Reformation of contracts: RTCincapable estimation of pecuniary OTHER SIMILAR REMEDIES CONTEMPLATED which applies the provisions of this Rule: reformation of an instrument Can the SC entertain declaratory relief? petition for NOTE: INSTRUMENT. BP129. or (EXCLUSIVE) hence.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. hence. except provided in these Rules. e subject of another proceeding to. Chavez DECLARATORY RELIEF AND OTHER SIMILAR REMEDIES (R63) Objective: (R63 S1) Interpretation/Construction of: o o o o deed. not the elements of the instrument—if such.

Mode SC. S3. filed within remaining period and not less than any event reckoned from notice of the denial 57 .Notice on Sol Gen In any action which involves validity of statute. final COMELEC. resolutions of  shall be entitled to be heard upon such question S4. or memorandum required by the rules of the Commission or by the Commission itself. or ruling of each Commission may be brought to the SC on certiorari by the aggrieved party within 30 days from receipt of a copy thereof.Scope Final orders or judgments of COA and COMELEC If such ordinance is alleged to be unconstitutional. EO. Chavez o prejudice the rights of persons not parties to the action. o The Sol Gen shall be notified by the party assailing the same and REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND COMMISSION ON AUDIT (Rule 64 [but applying Rule 65]) Constitutional Basis: A9A S7 (basis of Rule 64) Each Commission shall decide by majority of all its Members in any case or matter brought before it within 60 days from date of its submission for decision or resolution. COVERAGE: (R64 S1) Judgments.Time Within 30 days from notice of judgment IF M4r denied.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. or regulation. the Sol Gen shall also be notified and entitled to be heard.Local government ordinances In any action involving the validity of a local government ordinance. S2.petition for certiorari under Rule 65 In case of adverse resolution APPEAL R41 o (R40 to RTC if Quieting in MTC) S3. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading. order. brief. CoA orders. any decision. Unless otherwise provided by this Constitution or by law. S1. or any other governmental regulation. the corresponding prosecutor or attorney of the LGU involves shall be similarly notified and entitled to be heard.

by respondent. resolution sought to be reviewed. SC Rule 43 Appeal/Petition for review of decisions of Quasi Judicial Bodies 15 days from notice of award. Questions are too unsubstantial to warrant further proceedings S4. Filed manifestly for delay 58 . CA. Verified petition.Docket. Non payment of docket and 500 for costs 3. unless SC shall direct otherwise upon such terms as may be just Petitioner may apply for TRO or preliminary injunction to stay execution 5. Accompanied by sworn certification against forum shopping 6. Respondent is Comelec or CoA.Effect of filing Filing of certiorari will not stay execution of judgment. 18 copies. Finding of fact supported by substantial evidence. FO. Proof of service of its copy on commission and adverse party. and of payment of docket and other lawful fees S6. final and non reviewable 4. or else. Non compliance contents with form and 2. final orders.Form/Contents 1. lawful fees Pay. + 500 for costs S7. only in 40 41 42 43 45 4. quasi judicial court or tribunals 60 days from denial of motion for reconsideration (AM 7-7-12-SC) Motion for reconsideration is required Petition filed before RTC. resolutions of CoA and COMELEC 30 days from notice of judgment or final order or resolution sought to be reviewed NOT Petition filed before SC Rule 64 Petition for review of judgments and final orders or resolutions of COMELEC and CoA 30 days from notice of judgment or final order sought to be reviewed S8. final judgment. resolution Rule 64 Applies to judgments.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E.order to comment Within 10 days from notice of order or judgment.Comments of respondents 18 copies No other pleading may be filed unless required or allowed by court S5. person interested in sustaining 3. dismissed Grounds for dismissal 1. State specific material showing it was filed on time dates Rule 65 Applies to orders of judicial. with certified true copy of judgment 2. Chavez NO FRESH PERIOD RULE.

as the law or the Rules of Court may provide. impost c. instruction h. and to determine whether or not there is grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. ordinance i. all cases in which the jurisdiction of any lower court is in issue 9. All cases in which constitutionality or validity of any a. proclamation f. b. all cases involving the legality of any a. final judgments and orders of lower courts in: g. all cases in which only an error or question of law is involved What is the MATERIAL DATES RULE? As far as Rule 65 is concerned. order CERTIORARI. any penalty imposed in relation thereto 8. international or executive agreement 10. assessment d. Chavez With the CA With the SC d. PROHIBITION. presidential decree e. all criminal cases in which the penalty imposed is reclusion perpetua or higher 6. law 59 . the following material dates must be stated in c. toll e. regulation i. tax b. is in question 7. A8 S5 P2 Review Revise Reverse Modify Affirm o On appeal or certiorari. treaty. MANDAMUS (Rule 65) Constitutional Basis: A8 S1 P2 Judicial Power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E.

to annul or modify proceedings of such court. officer or person. board. 45 General Rule: M4R is required to allow the court to correct its errors 60 . Date of the filing of the motion for reconsideration 3. or adequate remedy in the ordinary course of law Certiorari Special civil action directed to an inferior court.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. the petition would be denied: 1. board or officer directing judicial or quasi judicial functions. or ministerial functions. ej. quasi judicial. tribunal. officer or person exercising judicial. Date of the denial of the motion for reconsideration performance of ministerial duty or unlawfully excluded another from use and enjoyment of a right or office to which such other is entitled QUALIFICATIONS in ALL 3: that there is no plain. in the event that the same unlawfully neglected in the Errors of Jurisdiction Court acted with GAD amounting to lack or excess of jurisdiction Action of the court Correctible by certiorari Rule 65 Errors of Judgment Misapprehension of law or facts by the court Valid proceeding Correctible by appeal Rules 40-43. board. Notice of the order or judgment 2. to do the act required to be done to protect the rights of petitioner and to pay damages sustained by petitioner by reason of the respondent’s wrongful act. corporation. ej function ministerial ministerial function function Without or GAD Unlawful Without or GAD neglect of ministerial duty or excluded another from a right or office Correct errors Performance of To restrain or of jurisdiction act or desist prevent from excluding usurpation of another from a jurisdiction right or office Mandamus Ministerial Mandamus Special civil action directed against any tribunal. speedy. board or officer in the event that the same has acted with grave abuse of discretion amounting to lack or excess of jurisdiction o Seeks to correct errors of jurisdiction Certiorari discretionary Prohibition Special civil action directed against any tribunal. to desist from further proceedings in the event that the same acted with grave abuse of discretion amounting to lack or excess of jurisdiction Prohibition Discretionary and ministerial To annul order To order To restrain performance performance 60 days from receipt of final judgment or order or from denial of motion for reconsideration Against entity Against entity Against entity or person or person or person exercising j or exercising exercising j. tribunal. Chavez the verified petition or else.

Chavez Exception: 1. resolution. where question raised in the certiorari proceedings have been duly raised and passed upon by the lower court. in a criminal case. grounds relied upon for the relief prayed for 5. relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable 5. where petitioner was deprived of due process.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. order. where the proceedings in the lower court are a nullity for lack of due process 6. 500 for costs 7. verified petition in 7 legible copies 3. where the order is a patent nullity. where the issue raised is one purely of law or where public interest is involved REQUIREMENTS: 1. accompanied by clearly legible duplicate originals or certified true copies of award. factual background of the case. certification against forum shopping 7. a motion for reconsideration would be useless 3. where under the circumstances. contain full names and addresses of petitioners and respondents. or are the same as those raised and passed upon by the lower court 9. as where the court has no jurisdiction 8. order or resolution sought to be assailed or from denial of M4R 4. pay docket and lawful fees. and there is extreme urgency for relief 4. where the proceeding were ex parte or in which the petitioner had no opportunity to object 2. where. serve copy upon adverse party or parties and the court 61 . concise statement of matters involved. it should be filed not later than 60 days from notice of judgment. where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interest of the government or the petitioner or the subject of the action is perishable 2. judgment. ruling subject 6.

whether such motion is required or not. It may also be filed with the Court of Appeals The petition shall be filed not later than sixty (60) days from notice of the judgment. order or resolution. speedy. service and filing to be done personally.60 days RTC to CA. it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. RTC Special civil action Rule 45 15 Days Not Questions of law SC Mode appeal/petition review of for - appeal is not a remedy o no appeal or no plain. Rule 42 (appellate) CA to SC.Rule 45 The above-stated is the PRINCIPLE OF HIERARCHY OF COURTS superior courts would not take cognizance of a case brought before it unless the case has been decided If the petition relates to an act or an omission of a municipal trial court or of a corporation.Rule 41 (original). in event of denial of petition. the petition shall be filed not later than sixty (60) days counted from the notice of the denial of the motion.60 days 65 vs 45 (simplified) Rule 65 60 days Motion for reconsideration required Questions of jurisdiction SC. a board. adequate remedy - court without jurisdiction Rule 65 as amended by Am 7-7-12: when deprived of substantial rights Sec.60 days General rule: Certiorari is not a substitute for lost appeal Except: denial of due process CA to SC. an officer or a person. Note: in the cases. 62 .Rule 40 RTC to CA. and in exercise of original jurisdiction. 4.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. CA. with explanation if not done personally by the lower courts in the exercise of its jurisdiction Same principle in certiorari: MTC to RTC. remedy is APPEAL MTC to RTC. In case a motion for reconsideration or new trial is timely filed. When and where to file the petition. Chavez 8.

or franchise NO MORE EXTENSION OF TIME IS GIVEN TO FILE CERTIORARI! b. not including interlocutory orders c. or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: a. In election cases involving an act or an omission of a municipal or a regional trial court. Chavez or with the Sandiganbayan. position or franchise if his right is unfounded or if he had forfeited his right to enjoy the privilege - after cause of ouster or right of petitioner to hold such office. intrudes into. a public officer who does or suffers an act which by provision of law constitutes a ground for the forfeiture of his office M4R based on Rule 65 Of interlocutory order. usurpation of public office within 1 YEAR from usurpation of public office REMEDY IF DENIED: Appeal 63 . the petition shall be filed exclusively with the Commission on Elections. an association which acts as a corporation within the Phils without being legally incorporated or without lawful authority to act *Sol Gen commences action (S2.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. position. position or franchise and to oust the person holding or exercising such office. 2 kinds of quo warranto: 1.. in aid of its appellate jurisdiction. as preparation to file certiorari M4R based on Rule 37 Of final judgment or final order.. If the petition involves an act or an omission of a quasi-judicial agency. S3) Period: (S11) Within 1 YEAR QUO WARRANTO (Rule 66) proceeding or writ issued by the court to determine the right to the use or exercise of an office. position. dissolution of a de facto corporation Rule 66 S1 An action for usurpation of a public office. whether or not the same is in aid of the courts appellate jurisdiction. or position arose Within 1 YEAR (action for damages) after entry of judgment establishing petitioner’s right to the office in question in short. a person who usurps. 2. or unlawfully holds or exercises a public office. the petition shall be filed with and be cognizable only by the Court of Appeals. unless otherwise provided by law or these rules.

CA. SC If Solicitor General files.R4 S1 R4 S2 Jurisdiction: RTC. final order of just compensation Within 1 year from usurpation of office Filed by government or person entitled to the office Remedy of person after expropriation. incapable of pecuniary estimation (BP129) Venue: Where the property is located Basis: (action involving title to or real property under R4 S1) CANNOT BE FILED WITH SC. SC If other person files. because under EO jur of RTC Private property shall not be taken for public use without payment of just compensation Quo Warranto Election Code Election Code COMELEC.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E.RTC.procedure to be observed in the exercise of the right of eminent domain recover property from expropriator within 5 years after non payment FORECLOSURE OF MORTGAGE (Rule 68) (Tan. order of expropriation 3. R66 Subject to BP129 Cannot be filed with MTC Show title to public office or exercise public franchise Usurpation. Chavez A3 S9 Jurisdiction and Venue: RTC. forfeiture.right and authority of the State to acquire private property for public use upon observance of due process and payment of just compensation Expropriation. no payment made: Expropriation (Rule 67) Eminent Domain. association illegal NOTE: Expropriation is an instance where multiple appeals are filed (30 day record on appeal in case of multiple appeal) Why? 3 orders issued under Rule 67: 1. CA. pp 142-145) Foreclosure Constitutional Basis: - action by which a mortgagee or pledge or any other lien holder cuts 64 . Handbook on Civil Procedure and pleadings. CA. order of compensation 2. SC Basis: A8 Consti. RTC. MTC Omnibus Election Code Not Can be filed with MTC Contest right of elected public officer to hold public office Ineligibility or disqualification of person elected to hold the office Within 10 days after proclamation of candidate Filed by any voter Quo Warranto Rule 66 Rules of Court RTC.

amount thereon claimed to be unpaid b. because of default in meeting the obligation Foreclosure of Mortgage termination of all the rights of the mortgagor in the property covered by the mortgage Nature of Action: QUASI IN REM Service of summons by publication Jurisdiciton/Venue: MTC-RTC 20-50 OMM MM lower higher Manner of foreclosure of mortgage: Rule 68 S1 Contents of action: 1. Chavez off the right of debtor whose property is pledged. Filing of ordinary action to collect debt 7. names and residences of mortgagor and mortgagee 4. under b. description of mortgaged property Possession of property sold may be given to purchaser by sheriff after the period of redemption had expired. names and residences of all persons having of claiming interest in the property subordinate in right to that of the holder of the mortgage.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Judicial or extrajudicial foreclosure of mortgage 6. date and mortgage due execution of Where real property or portion thereof is situated (R4 S1) Classification of Foreclosure of Mortgage: 1. JUDICIAL FORECLOSURE To have the property seized and sold by the court order to the end that the proceeds thereof be applied to payment of plaintiff’s claim 2. assignments. statement of date of the note or other documentary evidence of the obligation secured by the mortgage Remedies of Mortgagee in case of default of mortgagor/waiver of right to foreclose: a. if any 3. EJ FORECLOSURE 2. unless there is a third person actually holding the property adversely to the mortgagor 5. deemed to have waived his right to proceed against the property in a foreclosure proceeding 65 . all of whom shall be made defendants in the action - Here.

takes place when court intervenes petition and approves the PARTITION (Rule 69) (Tan. division. and absolute J Foreclosure. Provisional. Extrajudicial- division may be made by testator himself or by some person named by deceased or amicably by interested heirs by common agreement (Rule 74 S1) Classes of partition: R69 S1 A person having the right to compel partition of real estate may do so as provided in this Rule. Compulsory.division of property by the act of the parties themselves 2. assignment of a thing held in common among those to whom it may belong 6. Voluntary. final. until a definite division is made final or 4. Definite- when the resulting division is permanent. Total.when some of the things Right of Redemption Exists in EJ foreclosure By mortgagee within 1 year from registration of the sale in the Office of the Registry of Deeds Equity of Redemption Exists in J foreclosure By mortgagor during not less than 90 days nor more than 120 days from entry of judgment or foreclosure or even after foreclosure sale but before judicial confirmation of the same are divided. Partial. the rest remaining in community ownership 3. Chavez 2. no right of redemption. Handbook on Civil Procedure and pleadings. except only if morgagee is a bank 5.when it is temporary or conditional.all the things are divided among the participants 66 . pp 148-149) Separation.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Judicial.partition by judicial proceedings at the instance of one or more of the co tenants without regard to the wishes of the other co tenants Kinds of Partition MTC RTC 20-50 300-400 OMM MM lower higher R4 S1 R4 S2 1. setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property Covers: REAL or PERSONAL PROPERTY Jurisdiction/Venue: 1.

action for recovery of OWNERSHIP 67 . other person against whom possession of any land or building is unlawfully withheld Unlawful Detainer Withholding by a person of possession of land or building Legal but becomes illegal Pay AND vacate. binding upon the parties NOTE: 3 kinds of recovery of real property 1. Order of accounting Ejectment. Order of partition 2. applies to all cases subject to Rules on Summary Procedure. Accion reivindicatoria.involves possession of real property. with damages for illegal detention 2 kinds: FE and UD Forcible Entry Person in physical possession of land was deprived of possession through FISTS Unlawful ab initio Not require demand to vacate Prove prior possession until deprived 1 y from date of actual entry on land Filed by: R70 S1 Person deprived of possession of land or building by FISTS. Accion interdictalsummary action for recovery of physical possession of the property where dispossession has lasted for more than 1 year. vendor. Accion publiciana..30 day record on appeal (R69 S2) Why? (tingin ko lang) Orders under Rule 69: 1.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. pp 153-158) Real Action + Action in personam.form of action by which possessory titles to corporeal hereditariments may be tried and possession obtained which lies to regain possession of real property. or lessor. vendee.plenary action for recovery POSSESSION of real right of Pertinent Provisions of the Rules on Summary Procedure: (note the same. Handbook on Civil Procedure and pleadings. jurisdictional No need to prove prior physical possession 1 year from date of last demand NOTE: Partition is one mode of settlement of estate of the deceased (relate to R7577) FORCIBLE ENTRY AND UNLAWFUL DETAINER (Rule 70 in relation to Rules on Summary Procedure) (issue is that of possession) (Tan.. 3. Chavez In case of adverse resolution: MULTIPLE APPEALS. FE or UD Jurisdiction/Venue: MTC of the place where property or portion thereof is situated (R4 S1) Proceedings SUMMARY IN NATURE! (Rules on Summary Procedure) 2.

Duty of the Court After the court determines that the case falls under summary procedure. Cross claims and compulsory counterclaims not asserted in the answer shall be considered barred. however. S5. the plaintiff shall be entitled to judgment in accordance with S6 hereof. 68 . if there are 2 or more defendants. All cross claims shall be dismissed. Chavez ESPECIALLY PROHIBITED PLEADINGS AND MOTIONS) S3. The rules on pre trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule. shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. The answer to counterclaims or cross claims shall be filed and served within 10 days from service of the answer in which they are pleaded. from an examination of the allegations therein and such evidence as may be attached thereto. The defendant who appears in the absence of plaintiff shall be entitled to judgment on his counterclaim in accordance with S6 hereof. S7. VERIFIED! S4. Affirmative and negative defenses not pleaded therein shall be deemed waived. If a sole defendant shall fail to appear. dismiss the case outright on any of the grounds apparent therefrom for the dismissal of a civil action.Pleadings - Within 10 summons o o DAYS from service of Rule 70 Summ Pro The only pleadings allowed to be filed are the: 1.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. a preliminary conference shall be held.Preliminary conference. the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. motu proprio or on motion of the plaintiff.Answer Within 10 days from service of summons. the court. Provided. appearance of parties Not later than 30 days after the last answer is filed. except for lack of jurisdiction over the subject matter. If no ground for dismissal is found it shall forthwith issue summons which shall state that the summary procedure under this Rule shall apply. The failure of the plaintiff to appear in the preliminary conference shall be cause for dismissal of the complaint. it may. Complaints 2. Cross claims pleaded in the answer 4. that the court may in its discretion reduce the amount of damages and AF claimed for being excessive or otherwise unconscionable. Compulsory counterclaims 3. This Rule shall not apply where one of 2 or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference.Effect of Failure to answer Should the defendant fail to answer the complaint within the period above provided. Answers thereto S6. This is without prejudice to applicability of R15 S4 of the Rules of Court.

and require the parties to submit affidavits or other evidence on the said matters within 10 days from receipt of said order. the court shall render judgment. S18. Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter. or failure to comply with the preceding section S10. Such other matters intended to expedite the disposition of the case S9. The stipulations or admissions entered into by the parties However. S19.Record of Preliminary Conference Within 5 days after the termination of the preliminary conference. judgment may be rendered without the need of further proceedings. Chavez S8. together with their position papers setting forth the law and the facts relied upon by them. A clear specification of material facts which remain controverted e. the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order.Submission of affidavits and position papers Within 10 days from receipt of the order mentioned in the next preceding section. or the expiration of the period for filing the same. or petitions shall not be allowed in the cases covered by this Rule: a. including but not limited to: a. issue an order specifying the matter to be clarified. Whether the parties have arrived at an amicable settlement. during the said period. d. b. the terms thereof Within 30 days after receipt of the last affidavits and position papers. Whether.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. and if so. c. on the basis of the pleadings and the stipulations and admissions made by the parties. in which effect the judgment shall be rendered within 30 days from issuance of the order The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment. shall be dismissed without prejudice and may be revived only after such requirement shall have been complied with. motions. the court shall issue an order stating the matters taken up therein. it may.Prohibited pleadings and motions The following pleadings. should the court find it necessary to clarify certain material facts.Referral to Lupon Cases requiring referral to the Lupon under the provisions of PD1508 where there is no showing of compliance with such requirement. Motion for a bill of particulars 69 . or the expiration of the period for filing the same. Judgment shall be rendered within 15 days after the receipt of the last clarificatory affidavits.Rendition of judgment b.

The decision of the RTC in civil cases governed by this Rule including forcible entry and unlawful detainer. M4R pwede na MTC Summary Procedure. but is governed by rules on Ordinary Civil Actions k. without prejudice to a further appeal that may be taken therefrom.Appeal e. or any other paper The judgment or final order shall be appealable to the appropriate RTC which shall decide the same in accordance with S22 of BP129. Petition for certiorari. only up to MTC level lang o Once the case was elevated to RTC. Motion for new trial. Petition for relief from judgment S21. f. mandamus. Chavez c. Motion to default declare defendant in 15 DAYS from notice of judgment or final order. Motion for extension of time to file pleadings. notice of appeal + bond to RTC o NO M4R pleading) (prohibited i.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Third party complaints l. Reply However. S10 of Rule 70 shall be deemed repealed.Affidavits The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the affiants which are admissible in evidence. and shall be cause to expunge the inadmissible affidavit or portion thereof from the record. Interventions S20. affidavits. d. if RTC decision adverse. it is no longer summary. Dilatory motions for postponement j. and shall show their competence to testify to the matters stated therein.YES R70 S15 70 . Memoranda g. (in exercise of appellate jurisdiction). or for opening of trial A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action. or prohibition against any interlocutory order issued by the court h. or for reconsideration of a judgment. Injunction in FE and UD: Forcibly Entry / UnlawFul Detainer. shall be immediately executor.

Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez Court may grant preliminary injunction. Handbook on Civil Procedure and pleadings. Direct Contempt (R71 S1) 2. the latter may issue a writ of preliminary mandatory injunction to restore plaintiff in possession if the court is satisfied that defendant’s appeal is frivolous or dilatory. The court shall decide the motion within 30 days from filing thereof R70 S20 Upon motion of plaintiff. acting in opposition to authority. within 10 days from perfection of appeal to the RTC. in accordance with the provisions of R58 thereof. present a motion in the action for FE UD for issuance of writ of preliminary mandatory injunction to restore him in his possession. A possessor deprived of possession through Fe or UD may. justice. or that the appeal of plaintiff is prima facie meritorious or prejudice parties litigant or their witnesses during litigation 2 classifications of contempt: 1. Indirect Contempt (R71 S2) DISCUSSION: 1. DIRECT CONTEMPT (S1) - A remedy Acts covered: Misbehaviour in presence of or so near the court as to obstruct or interrupt proceedings before the same - - Disrespect toward the court CONTEMPT (Rule 71) - Offensive personalities people in court towards (Tan. within 5 days from filing of complaint. dignity Refusal to subscribe an affidavit or deposition when lawfully required to do so Refusal to be sworn or to answer as a witness Contempt of Court conduct which tends to bring authority and administration of law into disrespect or to interfere with Punishment: (RTC/of equivalent or higher rank) F: not exceeding 2k OR 71 . pp 162-166) Contempt wilful disregard or disobedience to court. to prevent defendant from committing further acts of dispossession against plaintiff.

Any abuse of or any unlawful interference with the processes or proceedings of the court not constituting direct contempt as under S1 2. OR BOTH person adjudged to be entitled thereof (lower court) F: not exceeding 200 I: not exceeding 1 day. The rescue. after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction. Assuming to be an attorney or officer of the court and acting as such without authority f.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. to impede. Chavez I: not exceeding 10 days. order. Disobedience of or resistance to a lawful writ. of a person or property in the custody of an officer by virtue of an order or process of a court held by him Remedy: (R71 S11) Appeal to proper court as in criminal cases 72 . or in any manner disturbs possession given to the e. OR BOTH Note highlighted: case in MTC where case is pending If after ejectment. re entered the property. indirect contempt (relate to Rule 70) Remedy: CERTIORARI or PROHIBITION (R71 S2) c. directly or indirectly. enters or attempts or induces another to enter into or upon such real property. degrade administration of justice Actions covered: a. obstruct. judgment of a court. Misbehaviour of an officer of a court in the performance of his official duties or in his official transactions b. or attempted rescue. including act of person who. process. INDIRECT CONTEMPT (S3) - Main / Original action o Can be filed in RTC or MTC d. for the purpose of executing acts of ownership or possession. Failure to obey subpoena duly served g. Improper conduct tending.

and only its pendency against the parties designated by their real names Upon filing of complaint. when affirmative relief is claimed in his answer. after proper showing that the notice is for the purpose of molesting the adverse party. may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action Said notice shall contain the names of the parties and the object of the action or defense. Initiate Not in presence of judge. or that it is not necessary to protect the rights of the party who caused it to be recorded Rule 13 Section 14 In an action affecting the title or the right of possession of real property. and a description of the property in that province affected thereby FILING AND SERVICE of the pleading Differentiate: Filing from service R13 S2 Filing is the act of presenting the pleading or paper to the clerk of court. disobey court order Rem: appeal Original action or encumbrancer of the property affected thereby. the plaintiff and the defendant.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. motu proprio or upon motion Cant initiate In presence or so near judge Rem: certiorari remedy Indirect Contempt Only from the time of filing such notice for record shall a purchaser. What are the papers required to be filed and served under Rule 13? 73 . Service is the act of providing a party with a copy of the pleading or paper concerned. be deemed to have constructive notice of the pendency of the action. plaintiff may opt to file notice of lis pendens with the register of deeds The notice of the lis pendens hereinabove mentioned may be cancelled Notice of Lis Pendens “buyer beware” Notice to buyer of existence of an adverse claim It is not a pleading There is need to register it with the register of deeds only upon order of the court. Chavez Direct Contempt In presence of a judge.

with a person of sufficient age and discretion then residing therein NOTE: NO TENDERING under Rule 13 S6! Sa summons lang yon. IF defendant refuses both modes of service. service may be done by ordinary mail. with postage fully prepaid and with instructions to the postmaster to return the mail to the sender after 10 days if undelivered If no registry service is available in the locality of either in the sender or the addressee. What are the modes of service of pleading? (R13 S5) Personal Service (R13 S6) Service by Registered Mail (R13 S7) Substituted Service (R 13 S8) How is it done? Personal Service R13 S6 Service of papers may be made By delivering personally a copy to the party or his counsel or By leaving it in his office with the clerk or a person having charge thereof If no person is found in his office or his office is not known or he has no office. at his residence. if known. in a sealed envelope plainly addressed to the party or his counsel at his office. then. resort to: Substituted Service R13 S8 74 . if known.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. when defendant refuses to accept the same Service by mail Service by registered mail shall be made by depositing the copy in the post office. Chavez (PAMNOJDORS) Pleading subsequent to the complaint Appearance Written Motion Notice Order Judgment Demand Offer of judgment Resolution Similar papers R13 S7 By leaving the copy between the hours of 8 in the morning and 6 in the evening at the party’s or counsel’s residence. if known. otherwise.

orders. resolutions. Except with respect to papers emanating from the court. Service by registered mail is complete upon actual receipt by the addressee or after 5 days from the date he received the first notice of the postmaster. Chavez If service of pleadings. the pleading produces no legal effect When is service deemed completed? Note: Wag ipaghalo ang provisions ng Rule 13 and Rule 14!!! Personal Service (R13 S10) Personal service is complete upon actual delivery or by handling a copy to defendant Service by mail (R13 S10) Service by ordinary mail is complete upon the expiration of 10 days after mailing. Would not toll the running of the reglementary period 4. A violation of this rule may be cause to consider the paper as not filed (R13 S11) What is constructive service of pleading? R13 S10 Service by registered mail is complete. Rather. the service and filing of pleadings and other papers shall be done personally. Effect of non compliance with personal service? Note: Service other than personal service R13 S11 Whenever practicable. 75 . with proof of failure of both personal service and service by mail The service is complete at the time of such delivery. a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. it will NOT RESULT in defendant being declared in default 5. whichever date is earlier. motions.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. A violation of this rule may be cause to consider the paper as not filed. 2. the office and place of residence of the party or his counsel being unknown. with proof of failure of both personal service or service by mail. The pleading/paper would not be admissible in court 3.. In case of defendant. notices. unless the court otherwise provides. service may be made by: Delivering the copy to the clerk of court. or other papers cannot be made under the 2 preceding section. Substituted Service (R13 S8) Substituted service is complete at the time of delivery of the copy to the clerk of court. State in detail: Effects 1.

SERVICE OF SUMMONS 76 . or defense as an indigent if the court.A party may be authorized to litigate his action. court to order correct payment NOTE: Docket fees are suspended in compulsory counterclaims (SC Resolution 9-21-04) Any adverse party may contest the grant of such authority at any time before the judgment is rendered by the trial court If the court should determine after hearing that the party declared as an indigent is in fact a person with sufficient income or property. claim.after 5 days from the date he received the notice of the postmaster. upon an ex parte application and hearing.with the office with the clerk of court Required in ALL INITIATORY PLEADINGS + PAYMENT OF THE REQUISITE DOCKET FEES (See Rule 1 Section 5) Pag kulang. and basic necessities for himself and his family Such authority shall include an exemption from payment of docket and other lawful fees. Chavez .Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E.. shelter. whichever date is earlier which the court may order to be furnished him The amount of docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent. execution shall issue or the payment thereof. and of transcript of stenographic notes After filing of the complaint and the payment of the requisite legal fees. REMEDY? File a motion to be declared as pauper litigant (R3 S21) R3 S21.Rule 13 S1. without prejudice to such other sanctions as the court may impose IF you cannot pay docket fees. o unless the court otherwise provides FILING. III. is satisfied that the party is the one who has no money or property sufficient and available for food. the proper docket and other lawful fees shall be assessed and collected by the clerk of court If payment is not made within the time fixed by the court.

or other things under his control (Subpoena duces tecum) Order for a person to appear and to testify at a hearing. or there is defect in the manner or form of service Summons a writ or a process issued to a defending party by the clerk of court. Original Summons.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. attendance fee.issued by the branch clerk of court upon motion of the plaintiff in case the summons are lost. and reasonable cost of production fee Ad testificandum or 77 . documents. destroyed. ordering defendant to answer the complaint within the time fixed by these Rules. or proper court office. or any suitable person Subpoena (R21 S1) A process directed to a person requiring him to attend and to testify at the hearing or trial of an action. Chavez Summons Writ or process in the name of the RP. or other things under his control (R21 S1) 2 kinds of summons: 1. and unless defendant answers. his deputy. or for taking of his deposition OR to produce books. plaintiff will take judgment by default and may be granted the relief applied for (R14 S2) Served on the defendant Does not need tender of kilometrage and other fees Original or alias May be served to a non-party Needs tender of kilometrage. investigation. and to give notice to defendant that an action has been commenced against him. (Subpoena ad testificandum) A process directed to a person requiring him to bring with him any books. to file an answer within the reglementary period. be declared in default Office of the Clerk of Court Office Receives complaint and payment of the docket fees Branch Clerk of Court Person Serves summons upon the defending party authorized by the court issuing the summons. Alias Summons. delivered by a sheriff. improperly served. issued by the Branch clerk of court informing the defendant of the filing of the case against him.issued by the branch clerk of court to the defendants upon the filing of the complaint and the payment of the requisite docket fees 2. with the purpose of obtaining jurisdiction over the person of the defendant and giving him notice that an action has been commenced against him conducted by competent authority or for the taking of his deposition. documents. or at any investigation Purpose is to obtain jurisdiction over person of defendant. action. or else.

done through: 1. place. Chavez duces tecum Upon filing of the complaint and payment of requisite docket fees During trial or investigation Service in person on defendant (R14 S6) The summons shall be served by handing a copy thereof to the defendant in person. or quasi in rem—for purpose of service of summons Tendering summons to defendant (R14 S6) In case defendant refuses to receive or sign for it. as well as the manner of non-receipt Substituted Service of Summons on defendant (R14 S7) Requisites. Defendant’s residence with some person of suitable age and discretion then residing therein or 78 . in rem. by tendering it to him. Impossibility of the personal service of summons within a reasonable time The efforts exerted to locate the person to be served To whom served / how? By leaving copies of the summons at: Can you serve summons by mail? NO How to serve summons? 1. The officer serving the summons shall make an affidavit addressed to the court stating that the time. Note: significant to know whether the action is in personam.in personam actions IN PERSONAM Service in person Substituted service IN REM Service in person Substituted Service Publication Extraterritorial Service QUASI IN REM Service in person Substituted service Publication 2. manner of service of summons. the same refused to receive it. and that despite efforts to try and serve the summons in person on defendant.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Leaving copy of the summons to the defendant who refuses to receive it FE and UD.

or the subject of which. and the action: (AREA—R14 S15) - Affects personal status of the plaintiff or Relates to. in excluding defendant from any interest therein. and the action affects the personal status of the plaintiff or relates to. service may. or in which the relief demanded consists. When defendant does not reside and is not found in the Philippines. 3. With sufficient knowledge and comprehension that what he is receiving on behalf of defendant are summons notifying defendant that a suit was brought against the same.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez 2. be effected out of the Philippines by: 1. or In which the relief demanded consists.by service of summons by substituted service How is a person deemed of suitable age and discretion? 1. actual or contingent. Upon defendant designated as unknown owner or the like. in Excluding the defendant from any interest therein or The property of the defendant has been Attached within the Philippines - - - Service by publication in a newspaper of general circulation R14 S15 Service by leave of court by publication in a newspaper of general circulation in such place and for such time as the court may order. wholly or in part. is property within the Philippines in which defendant has or claims a lien or interest. R14 S15 states that when defendant does not reside and is not found in the Philippines. by leave of court. or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry (R14 S14) 79 . When defendant ordinarily resides in the Philippines but who is temporarily out of it (R14 S16) Can there be personal service of summons in in rem actions? Yes. in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant. wholly or in part. is property within the Philippines in which defendant has or claims a lien or interest. Personal service as under S6** Suffices under the following instances: 1. By leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof Through process server or upon motion. or the property of defendant has been attached within the Philippines. actual or contingent. Of legal age 2. AND PREFERABLY KNOWS HOW TO SPEAK ENGLISH 2. or the subject of which.

GRANT M2D. Instance where in personam. unless tainted with grave abuse of discretion 80 . Impossibility of the personal service of summons within a reasonable time The efforts exerted to locate the person to be served To whom served / how? By leaving copies of the summons at: Defendant’s residence with some person of suitable age and discretion then residing therein or By leaving the copies at defendant’s office or regular place of Extraterritorial Service Arises in case defendant is non resident. or the like. In any other manner the court may deem sufficient R14 S14 In any action where the defendant is designated as an unknown order.by service of summons by substituted service 3. that the court has no jurisdiction over the person of the defending party 3 options of the court: 1. or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry. in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of defendant. yet publication is allowed (exception to the general rule) o Identity is unknown or whereabouts are unknown Substituted Service vs Extraterritorial Service of Summons Substituted Service Requisites. or in any other manner the court may deem sufficient Defective service of summons. Chavez 2.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. refile the case. remedy: M2D Rule 16 S1a. in abroad. action in rem. By publication in a newspaper of general circulation in such places and for such time as the court may order. service may. or business with some competent person in charge thereof Through process server or upon motion. be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order.as plaintiff. by publication in a newspaper of general circulation. by way of personal service outside of Phils. by leave of court.

been severed before the action was brought. To whom summons are made? 1. I will file an answer within the balance of the period prescribed by Rule 11 to which I am entitled at the time of serving my motion. motion to dismiss not allowed. Then proceed with the trial. or upon the person in charge of the office or place of business maintained in such name. Ordinary defendant Upon domestic private juridical entity Upon an entity without juridical personality R14 S11 81 . Can Rule 16 S1a be a ground for Motion to dismiss under Rules on Summary Procedure? YES. ISSUANCE OF ALIAS SUMMONS R14 S9 When defendant is a prisoner confined in a jail or institution. following Rule 16 S4. Upon Prisoners 3. DENY M2D As defendant.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. insane. service may be effected upon all the defendants by serving upon any one of them. General rule. computed from my receipt of notice of denial. upon due notice. But such service shall not bind individually any person whose connection with the entity has. and when the decision is adverse against me. Chavez 2. And when the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court. upon his guardian ad litem whose appointment shall be applied for by the plaintiff. except #1 instance. lack of jurisdiction over the person of the defending party (RULES ON SUMMARY PROCEDURE) Reason: the court cannot proceed with the case without jurisdiction over the person of the defending party Exception to exception: SMALL CLAIMS Upon Minors and Incompetents R14 S10 When defendant is a minor. service shall be made on his father or mother. I will file for certiorari under Rule 65. I will file an appeal assigning as error the denial of the motion to dismiss. In case of a minor. R14 S8 When persons associated as an entity without a juridical personality are sued under the name by which they are generally or commonly known. or otherwise an incompetent. service may be effected upon him by the officer having the management of such jail or institution who is deputized as a special sheriff for said purpose. or if none. but not less than 5 days in any event. service shall be made upon him personally or on his legal guardian if he has one.

service may be made on its resident agent designated in accordance with law for that purpose. by leave of court. or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry. service shall be made on the Solicitor General. Service upon defendant whose identity or whereabouts are unknown Upon residents temporarily out of the Philippines R14 S14 R14 S16 82 . be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. and the action affects the personal status of plaintiff or relates to. or. or on such other officer or officers as the law or the court may direct. in which the defendant has or claims a lien or interest. Any order granting such leave shall specify a reasonable time. or like public corporations. within which the defendant must answer. in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant. or in any other manner the court may deem sufficient. which shall not be less than 60 days after notice. wholly or in party. or on any of its officers or agents within the Philippines. General Manager. or the like. Treasurer. city or municipality. in excluding defendant from any interest therein. Corporate Secretary. is property within the Philippines. if there be no such agent. In any action where the defendant is designated as an unknown order. service may. Service upon public corporations R14 S13 When the defendant is the Republic of the Philippines. or In House Counsel NOTE: the LIST IS EXCLUSIVE!!!!! Service upon foreign private juridical entity R14 S12 When the defendant is a foreign private juridical entity which has transacted business in the Philippines. by leave of court. in case of a province. partnership. Managing Partner. or in which the relief demanded consists. or the property of the defendant has been attached within the Philippines. service may be made on the President. or the subject of which. service may be effected on its executive head. Chavez When the defendant is a corporation.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. be effected out of the Philippines by personal service as under S6. on the government official designated by law to that effect. or by publication in a newspaper of general circulation in such places and for such time as the court may order. service may. Extraterritorial Service R14 S15 When the defendant does not reside and is not found in the Philippines. actual or contingent. or association organized under the laws of the Philippines without a juridical personality.

as under the preceding section. action for sum of money. Court acquires jurisdiction over the RES Because nature of the case has become quasi in rem 2. In case of formal not substantial amendments May bayad ba summons? (relate to Rule 10) As far as amendment of the pleading. baka hindi i serve) Relate Rule 14 to Rule 58 Ex parte issuance of preliminary injunction 83 . Complaint in intervention. or out of the Phils. serve summons 3. sige ka. Substantial not merely formal amendment Relate Rule 14 to Rule 57 2. With respect to third party complaint. meron. be also effected out of the Philippines. action for sum of money WITH ATTACHMENT OF PROPERTY. Not in permissive counterclaimbecause defendant aka original plaintiff is already a party to the action. issued ex parte To implement. but who is temporarily out of it. Other parties are impleaded Order of attachment. unknown. in the following instances: 1.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. serve upon third party defendant (relate to R6 S11) WALA! Pag pinaserve mo sa process server. service may. Chavez When any action is commenced against a defendant who ordinarily resides within the Philippines. Hence. as plantiff. serve upon 4th party defendant (relate to R6 S11) NOT in: 1. summons by publication can already be made. jurisdiction over him in original complaint was already taken from the start 3.because third person submitted to jurisdiction of the court If summons cannot be served because non resident. 4. what is your remedy? Convert action in personam to quasi in rem A vs B Corporation. but not required (abutan mo na lang para hindi kawawa. Amend the complaint. by leave of court. is summons required to be served? YES. writ of attachment. With respect to fourth party complaint.

Submitted to jurisdiction of the court. Motion to Dismiss (Rule 16) Motion for Bill of Particulars (Rule 12) Motion to amend the pleading (Rule 10) Motion for Extension of Time to File Responsive Pleading (Rule 11) Can the court dismiss a case motu proprio for lack of jurisdiction over the person of the defending party for defective service of summons? NO! Dismissal shall only be by MOTION! Motion to dismiss Motion for Summary Judgment (Rule 35) Order of Default/Judgment by Default (Rule 9) 84 .Voluntary appearance The defendant’s voluntary appearance shall be equivalent to service of summons. After service of summons. Filed responsive pleading Prescription DOES NOT INCLUDE: lack of jurisdiction over the person of the defending party (Wala to!) 2. serve summons Rule 9 S1 (relate to Rule 16) provides for the following instances when the court may dismiss a case motu proprio: Lack of jurisdiction over the subject matter Litis pendencia Res judicata Court not to issue injunction unless there is invalid service of summons Notice and hearing EXCEPTION TO SERVICE OF SUMMONS: Voluntary appearance 1. REFER TO THE FOLLOWING: When questioning the jurisdiction of the court Rule 14 S20 S20. EXCEPT: IV.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. Chavez To implement.

complaint in intervention. That the court has no jurisdiction over the subject matter of the claim NOTE: Subject matter (BP129. cross claim. And when the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court. if there is motion to dismiss. but not less than 5 days in any event. and when the decision is adverse.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. if not within. before filing of a responsive pleading NOTE: Motion to dismiss is not a pleading! It is not a responsive pleading! Hence. the complaint may still be amended as a matter of right even if there is a motion to dismiss! Move for alias summons DENIED: File an answer within the balance of the period prescribed by Rule 11 to which entitled at the time of serving motion. filed within the time for but before filing the answer to the complaint or pleading asserting a claim After service of summons. file an appeal assigning as error the denial of the motion to dismiss. a defendant in a permissive counterclaim. b.conferred by law) Exclusive original jurisdiction of courts. a motion to dismiss may be made on basis of the following grounds: a. computed from receipt of notice of denial. file for certiorari under Rule 65. Chavez appearance is to question the jurisdiction of the court ONE-AT-A-TIME. except if DENIED: 85 . 3rd 4th etc party complaint. That the court has no jurisdiction over the person of the defending party Relate to R14 Jurisdiction over defendant may be acquired by: voluntary appearance or by valid service of summons. A. then M2D is proper GRANTED: Refile + docket fees OR Amend complaint to confer jurisdiction (no need for docket fees) Grounds for motion to dismiss: Rule 16 S1 states that within the time for but before filing the answer to the complaint or pleading asserting a claim. Then proceed with the trial. MOTION TO DISMISS (Rule 16) GRANTED: Refile Motion to dismiss A motion to dismiss in an application for relief filed by an original defendant.

Chavez File an answer within the balance of the period prescribed by Rule 11 to which entitled at the time of serving motion. c. file an appeal assigning as error the denial of the motion to dismiss. Identity of parties or at least such parties representing the same interests in both actions 2. computed from receipt of notice of denial. would amount to res judicata in the other case 86 . regardless of which party is successful. except if GAD. And when the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court. file for certiorari under Rule 65. That there is substantial identity in the cause of action and in the relief sought. And when the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court. and when the decision is adverse. computed from receipt of notice of denial. file an appeal assigning as error the denial of the motion to dismiss.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. file for certiorari under Rule 65. e. and when the decision is adverse. That plaintiff has no legal capacity to sue GRANTED: Refile 3. but not less than 5 days in any event. the relief being founded on the same facts d. then certiorari Rule 65 DENIED: File an answer within the balance of the period prescribed by Rule 11 to which entitled at the time of serving motion. file for certiorari under Rule 65. Then proceed with the trial. but not less than 5 days in any event. And when the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court. Then proceed with the trial. and when the decision is adverse. That venue is improperly laid Note: Rule 4 GRANTED: Refile. but not less than 5 days in any event. Identity in the two cases would be such that any judgment that may be rendered in one. DENIED: File an answer within the balance of the period prescribed by Rule 11 to which entitled at the time of serving motion. computed from receipt of notice of denial. That there is another action pending between parties for the same cause aka LITIS PENDENCIA Elements: 1. file an appeal assigning as error the denial of the motion to dismiss. Then proceed with the trial.

2nd. Chavez Which should be dismissed in case of litis pendencia? The 1st. And when the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court. That the action is barred by prior judgment or by the statute of limitations Aka RES JUDICATA Elements: There is previous final judgment or order g. file for certiorari under Rule 65. And when the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court. f. There must be identity of the parties. and when the decision is adverse. Then proceed with the trial. file an appeal assigning as error the denial of the motion to dismiss. computed from receipt of notice of denial. computed from receipt of notice of denial. Then proceed with the trial. That the pleading asserting the claim states no cause of action Aka FAILURE TO STATE CAUSE OF ACTION GRANTED: Refile Amend the pleading The previous final judgment is a judgment upon the merits 87 . Jurisdiction over the subject matter and the parties by the court rendering it GRANTED: Appeal DENIED: File an answer within the balance of the period prescribed by Rule 11 to which entitled at the time of serving motion. but not less than 5 days in any event. of subject matter. 3rd.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. file an appeal assigning as error the denial of the motion to dismiss. and of cause of action between the first and second actions Aka PRESCRIPTION GRANTED: Appeal DENIED: File an answer within the balance of the period prescribed by Rule 11 to which entitled at the time of serving motion. but not less than 5 days in any event. 4th action? The later case(s) would be dismissed. and when the decision is adverse. file for certiorari under Rule 65.

or otherwise extinguished GRANTED: Appeal DENIED: File an answer within the balance of the period prescribed by Rule 11 to which entitled at the time of serving motion. waived. Exhaust then refile DENIED: i. h. file for certiorari under Rule 65. EXCEPT: In case of wilful and deliberate forum shopping. computed from receipt of notice of denial. abandoned. Appeal In case of non exhaustion of administrative remedies. and when the decision is adverse. And when the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court. computed from receipt of notice of denial. Chavez DENIED: File an answer within the balance of the period prescribed by Rule 11 to which entitled at the time of serving motion. Then proceed with the trial. And when the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court. That a condition precedent for filing the claim has not been complied with GRANTED: General Rule: refile plus comply with condition precedent. computed from receipt of notice of denial. In the latter case. Then proceed with the trial. And when the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court. NCC) GRANTED: Appeal DENIED: File an answer within the balance of the period prescribed by Rule 11 to which entitled at the time of serving motion. file for certiorari under Rule 65. hence. but not less than 5 days in any event. file for certiorari under Rule 65. unenforceable under the Statute of Frauds (note: 1403. and when the decision is adverse. file an appeal assigning as error the denial of the motion to dismiss. which operates as dismissal with prejudice. and when the decision is adverse. but not less than 5 days in any event.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. but not less than 5 days in any event. Then proceed with the trial. j. file an appeal assigning as error the denial of the motion to dismiss. file an appeal assigning as error the denial of the motion to dismiss. That the claim on which the action is founded is 88 . That the claim or demand set forth in the plaintiff’s pleading has been paid.

Failure of appellant to pay the docket and other lawful fees prescribed in S5 of R40 and S4 Rule 41 2.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. summing up Rule 16. when it appears from the pleadings or the evidence on record that 2. that there is another action pending between the parties for the same cause. i of Rule 16 WITHOUT PREJUDICE. the court shall dismiss the claim NOTE ALSO: Rule 7 S5 Hence. the court has no jurisdiction over the subject matter. file an appeal assigning as error the denial of the motion to dismiss. but not less than 5 days in any event. computed from receipt of notice of denial. and when the decision is adverse. that the action is barred by prior judgment or by statute of limitations. or 3. h. on the following grounds: 1. or additions in the approved record on appeal as provided in S4 of Rule 44 5. f.the rest of Rule 16 MOTU PROPRIO DISMISSAL: (see underlined below) Rule 9 S1 Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived Rule 50 S1. Failure of the record on appeal to show on its face that the appeal was taken within the period prescribed by these Rules However. Failure of appellant to serve and file the required number of copies of his 89 . omissions. And when the denial is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the court. 4.e. file for certiorari under Rule 65. Unauthorized alterations. WITH PREJUDICE. Chavez File an answer within the balance of the period prescribed by Rule 11 to which entitled at the time of serving motion.Motion to dismiss appeal An appeal may be dismissed by the CA on its own motion or on that of appellee. Failure to file notice of appeal or the record on appeal within the period prescribed by these Rules 1. 3. Then proceed with the trial.

Notice of hearing (Due process). It does not interrupt the running of the prescriptive/reglementary period for the filing of the requisite pleading 3. 1. explanation why not done via personal service (R13 S11) Other party files comment or objection 5. The fact that the order or judgment appealed from is not appealable Side note: RULES ON MOTION Note requirements of written motion: 1. because it would be deemed as a final order 3. Failure of appellant to take necessary steps for the correction or completion of the record within the time limited by the court in its order 4. *the motion shall be treated as a worthless piece of paper which the clerk of court has no right to receive and the court has no authority to act upon (mere scrap of paper) 9. d. Proof of service (different from proof of mailing. Set hearing 10 days after filing of the motion 4. f of Rule 44 7. The motion shall be considered as not filed Execution of the act subject of the motion.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. and IF requisites are not complied with. or directive of the court without justifiable cause. circulars. c.3 daay notice rule 2. Failure of appellant to appear at the preliminary conference under R48 or to comply with orders. It will be ground for denial of the motion 2. only as far as filing) 90 . File reply to comment 8. Chavez brief or memorandum within the time provided by these Rules - To see whether the adverse party was able to receive the motion 6. Absence of specific assignment of errors in the appellant’s brief. IF by registered mail. accompanied by proof of service. or of page references to the record as required in S13 par a.

file M4R within 15 days (Rule 37) Motion made with notice to the adverse party to give him an opportunity to oppose it LITIGATED MOTION Comply with requisites for written motion NON LITIGATED MOTION No need to comply with all the requirements. Chavez If act is adversely ruled due to non compliance with the Rules on Motion. but with need to hear on the motion Special Motion A motion addressed to the discretion of the court Examples of Litigated Motions: Motion to dismiss If not. would affect the right of parties IF not. then not set for hearing Motion to declare defendant in default What is a motion? R15 S1 A motion is an application for relief other than by a pleading Motion for summary judgment Motion for judgment on the pleadings What are the kinds of motions? Motion ex parte / Non Litigated Motion Made without the presence of or notification to the other party because the question generally presented is not debatable Motion for new trial Motion for reconsideration Motion to dismiss complaint upon plaintiff’s motion Motion of course Movant is entitled to the relief or remedy sought as a matter of discretion on the part of the court Motion to lift order of default Litigated Motion Motion to declare a party in direct contempt 91 .Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E.

PWEDE! Because motion to dismiss is NOT a responsive pleading Motion to dismiss.not a pleading Motions that need to be verified: Motion for relief from judgment Motion to lift order of default Position paper.relate to Rule 10 Amendment as a matter of right if a motion to dismiss is filed.not a pleading Memorandum. 92 . pwede. Chavez Motion for demurrer to evidence All motions for provisional remedies: Motion for consolidation or severance of case Motion for preliminary attachment Motion for trial by commissioner Motion for dissolution of preliminary injunction Motion to strike out evidence or testimony off the record Motion for writ of replevin Examples of non-litigated motions: Motion to reset pre trial Motion in support pendent lite Motion to postpone pre trial Motion to postpone for absence of evidence Motion to extend time for filing pleadings Motion to postpone for illness of a party or counsel Motion to set case for pre trial Rule 16. for as long as the motion is final and executory Motion for new trial on ground of FAME OF the 10 grounds.not a pleading Motion to postpone trial Amendment if order granting motion to dismiss.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E.

the motion must be filed within 10 days from service Purpose is to enable properly to plead and prepare for trial 3. following the reglementary periods provided for under R11. raise as affirmative defense. and the details desired Note: the motion is a LITIGATED MOTION To clarify ambiguities Done before filing of a responsive pleading What is a bill of particulars? R12 S1 states that a bill of particulars is a more definite statement of any matter which is not averred with sufficient definiteness or particularity.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez Motion to dismiss after a responsive pleading. with the purpose of aiding in the preparation of a responsive pleading. the motion must be filed within 10 days from service thereof) B. Notice of hearing shall be addressed to all the parties concerned not 93 . PWEDE. then set the motion to dismiss for hearing When do you file bill of particulars? R12 S1 states that a bill of particulars is filed before responding to a pleading. Hearing of motion set by applicant 7. If the pleading is a reply. In writing 6. 4. A written motion by the defending party before the court for a bill of particulars 2. MOTION FOR BILL OF PARTICULARS (R12) (Note: Different from motion for bill of particulars in Criminal Procedure) Motion for Bill of Particulars in Civ Pro Rule 12 May be filed before responding to a pleading Address any matter in the pleading not averred with sufficient definiteness or particularity Purpose is to prepare responsive pleading Motion for Bill of Particulars in Crim Pro R116 S9 May be filed before arraignment Address alleged defects in the criminal complaint or information Requirements for filing Bill of Particulars: (R12 S1 in relation to R15) 1. The motion shall point out the defects complained of. The motion is to be filed before the filing of responsive pleading 5. the paragraphs wherein they are contained. (If the pleading is a reply.

the court may order the striking out of the pleading or the portions thereof to which the order was directed. Amendment as a matter of right: (R10 S2) 94 . file bill of particulars Denied. Remedy? R12 S5 After service of the Bill of Particulars or of a more definite pleading. or make such order as it deems just. the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion which shall not exceed 5 days in any event Effect of order of failure to comply to file Bill of Particulars R12 S4 If the order is not obeyed. Adding or striking out an allegation or name of any party or 2. MOTION TO AMEND THE PLEADING (Rule 10) Amendment. is the process of: 1. 9. c. (File a motion to strike out the pleading) Motion for Bill of Particulars: Granted: Clarify. And in the most expeditious and inexpensive manner IN SHORT: Amendment is the process of adding or striking out or correcting a name or allegation Amendment as a matter of right To correct alterations in a PLEADING (not in a motion) The motion for bill of particulars is denied. a. or after notice of denial of his motion. answer within the plenary period Kinds of amendments: 1. as provided under R10 S1. Without regard to technicalities. Proof of service C. Correcting a mistake in the name of a party or a written or inadequate allegation or description in any other respect. b. Motion and notice of hearing must be served at least 3 days before the date of hearing R12 S6 provides that a bill of particulars becomes part of the pleading for which it is intended. So that the actual merits of the controversy may speedily be determined. or in case of insufficient compliance therewith. Chavez later than 10 days from the filing of the motion IS bill of particulars part of a pleading? YES! 8.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E.

the old pleading is no more. there is second motion to amend (not once as a matter of right). amendment is allowed to conform to evidence o NOTE: meron din to sa criminal procedure 5. pleadings may be amended to conform to the evidence. Once the pleading is amended. they shall be treated as if raised in the pleadings. admissions made in the old pleading - With already presentation of evidence. provided no prejudice is caused thereby to the adverse party. Formal Amendments (R10 S4) A defect in the designation of the parties or other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. substantial amendments may be made only upon leave of court Amendment is substantial A responsive pleading had already been served Amendment of the pleading which would change the original cause of action 6. there is discrepancy. Chavez A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or in the case of a reply. at its initiative or on motion. at any time within 10 days after it is served. Substantial amendments 2.MANDAMUS Amendment with leave of court (after the filing of a responsive pleading) DENIED: Remedy? 95 .matter of discretion 4. and failure to amend does not affect the result of the trial of these issues Amendment as a matter of right DENIED: remedy. but as far as allegations are concerned. Amendments to conform or to authorize presentation of evidence (R10 S5) When issues not raised in the pleadings are tried with the express or implied consent of parties. so. is the second motion to amend a matter of right or a matter of discretion? (Question unanswered yet) If there is no responsive pleading yetamendment as a matter of right Once. Question: Amendment as a matter of right. EXCEPT. Amendment to confer jurisdiction Amendment as a matter of right. so far as no responsive pleading is served 3. Amendment by leave of court: (R10 S3) Except as provided in the next preceding section.

counterclaim. o AMEND the complaint A substantial pleading does not require the filing of a new copy of the entire pleading A supplemental 96 . and the original is superseded by amendment.amendment of the pleadings naman ang tinutukoy eh Relate Rule 10 to Rule 6 When the answer does not allege cross claim. any provisional remedy is affected by amendment Amendment of complaint. which includes prayer for writ of attachment. a new copy of the entire pleading must be filed Amendment as a Supplemental Pleading Refers to facts arising after the filing of the original pleading Taken together with the original pleading Always with leave of court - Answer omitted counterclaim or cross claim.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. o AMEND the pleading Relate to Rule 3 Related to joinder of parties. the provisional remedy shall be DISSOLVED. - Amendment of complaint to join another party. o Remedy is to AMEND the answer Relate to Rule 2 In case of non joinder of causes of action. Chavez Certiorari Rule 65 in relation to Rule 41 S1 Order is interlocutory Related to Rule 14 and Rule 57 In personam to quasi in rem. o Remedy: AMENDMENT of the pleading Amended Pleading Refers to facts existing at the time of the commencement of the action Takes the place of the original pleading Can be made as matter of right when no responsive pleading has yet been filed When amended pleading is filed. publication is allowed Substantial amendment o Service of summons required Relate Rule 10 to Provisional Remedies If the original complaint or verified complaint has provisional remedies. o Need to serve summons Amendment of the answer? 3PC? 4PC? Complaint in intervention? PWEDE!.

An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed (R11 S3) Supersedes original pleading With or without leave of court pleading may be answered within 10 days from notice of the order admitting the same. upon like terms. notice. (within 15 days after being served with a copy thereof)—(R11 S3) Amendment by leave of court is to be answered within 10 days from notice of the order admitting the same. BASED ON CAUSE Not a litigated motion no need for hearing. unless a different period is fixed by the court.motion set for hearing at least 10 days 97 .further motion 3 days before hearing 10 days. The answer to the complaint shall serve as answer to the supplemental complaint if no new or supplemental answer is filed (R11 S7) o NO PROHIBITION under the Rules on Summary Procedure D.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. MOTION FOR EXTENSION OF TIME TO FILE RESPONSIVE PLEADING (Rule 11) Rule 11 S11 Section 11 Upon motion and on such terms as may be just. grant the motion to dismiss. Chavez matter of right is to be answered before the filing of the responsive pleading. Supplements original pleading With leave of court allow an answer or other pleading to be filed after the time fixed by these Rules Relate to Rule 16 The court may either deny the motion to dismiss. or ORDER THE AMENDMENT OF THE PLEADING Extend. and filing Is there amendment of the pleading in summary procedure? YES As a matter of right As a matter of discretion 3 day notice rule. the court may extend the time to plead provided in these Rules The court may also.

except as to the amount of damages ORDER OF DEFAULT Rule 9 S3 provides that a defending party who fails to file an answer to an initiatory pleading within the time allowed therefor may be declared in default.3rd party defendant In a cross claim.PLAINTIFF or DEFENDANT Files Plaintiff.co defendant Requirements for declaration of default: (R9 S3) 98 .at any time after the pleading in answer thereto has been served Defendant. failure to comply with the Barangay Conciliation Proceedings EXCEPTION TO EXCEPTION: Small Claims Cases. S1 and 2. but there is no genuine issue Maganda ka? Maganda ka nga ORDER OF DEFAULT / JUDGMENT BY DEFAULT (Rule 9) Order of Default Order issued by the court where defendant failed to file answer Judgment by Default Decision or judgment by the court after order of default and presentation of evidence ex parte by plaintiff E. Chavez Is bill of particulars allowed in Summary Procedure? NO (Prohibited pleading) o DENIED: plead o final judgment on the merits Motion to dismiss in Summary Procedure? NO (prohibited pleading) EXCEPT: 1.motion to dismiss absolutely hindi pwede there is issue. SUMMARY JUDGMENT (Rule 35) Summary judgment judgment rendered by the court without trial if it clearly appears that there exists no genuine issue or controversy as to any material fact.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. lack of jurisdiction over the person of the defending party 2. lack of jurisdiction over the person of the defendant 3.at any time NOTE: LITIGATED MOTION GRANTED: remedy is APPEAL DEFENDING PARTY INCLUDES: In a permissive counterclaimoriginal plaintiff In a 3PC.

be declared in default (R9 in relation to Rule 6) 99 .Ordinary and Special Civil actions (from MTC). CERTIORARI RULE 65 with TRO or injunction Dahil pag wala. FAME. Written motion by claiming party to declare defendant in default (NOT oral motion!) (state R15 requirements) NOTE: umaakyat to hanggang SC. The court must have validly acquired jurisdiction over the person of the defendant either by service of summons or voluntary appearance - S4 R65 Interlocutory o NOT Rule 37 as basis (because Rule 37 applies only to Final orders) 2. Motion for reconsideration Rule 37 with RTC DENIED. final judgment) ORDINARY CIVIL ACTION Order of default DENIED. at may order of default.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. and in what instances required [all FAME]) Granted: File answer Denied. NATURE OF ORDER OF DEFAULT: interlocutory (making reference to R41) Motion for reconsideration DENIED. tuloy tuloy na + judgment of default 3. [not Spec Pro] MTC (all special civil actions. FILE MOTION FOR RECONSIDERATION Certiorari Rule 65 RTC with TRO (S7 R9 amended by AM 7-7-12) DENIED. Affidavit of Merit (note what it is. original actions in exercise of original jurisdiction. Notice of appeal with CA Rule 41 (original jurisdiction of RTC ang certiorari Rule 65)— Plaintiff failed to file answer. Proof of service of summons on the defendant Denied. REMEDY: MOTION TO LIFT ORDER OF DEFAULT Verified. The defendant fails to answer within the time allowed therefore 4. Chavez 1.

the refusing party may be declared in default In case of motion to declare defendant in default. SC M4R Rule 52 o Due to refusal to comply with the modes of discovery. file MOTION TO RENDER JUDGMENT As defendant. WEH!  R1 S6. you can file answer R9 S3 in relation to Rule 10 Order of default issued by court. motion to strike out answer. CA M4R Rule 52 DENIED. ikaw ang defendant Go to office of the clerk of court. substantially amended pleadings - ETO DISKARTE MO.Liberal application of the rules. Hierarchy of courts DENIED. at pag ayaw tanggapin.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. resolution. Chavez apply Neypes. there is amendment of the pleading. doctrine of hierarchy of courts DENIED. don’t file motion to admit answer It is equal to motion for extension of time to file pleadings o PROHIBITED PLEADING Effect of order of default: Lose standing Not to participate at the trial but shall be entitled to notices Entitled to 2 copies of decision. file it by registered mail o Pag nag argue ang kalaban. file your answer. order of default is dissolved R9 in relation to Modes of Discovery R29 Summary Procedure 100 . SC R45 Petition for Review on Certiorari apply Neypes. HENCE. there is one more remedy: File motion to admit answer o Mawawala ang motion to declare defendant in default dahil may answer na eh DOCTRINE OF HIERARCHY OF COURTS Higher courts will not entertain any case brought before it unless the same is decided before the lower courts Summary Proceedings Motion to declare defendant in default is a PROHIBITED PLEADING As plaintiff in such a case.

CERTIORARI Rule 65 with TRO/injunctionPREFERRED over appeal Because appeal is not the adequate. File petition for annulment of judgment or final order or resolution on the ground of extrinsic fraud (R47 S1 and 2) 101 . Remedy? JUDGMENT BY DEFAULT Nature: Final Judgment R9 in relation to R11 Based on presentation of evidence ex parte File a petition for review on certiorari before the SC raising only questions of law which must be distinctly set forth. Chavez Given 10 days to answer from receipt of service of summons Basis: R52 S1 Denied.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. with proof of service on the adverse party. Motion for reconsideration Denied. Remedy? File a motion for reconsideration of the judgment or final resolution within 15 days from service thereof before the SC. order. final order. with proof of service on the adverse party. or any other proceeding is thereafter taken against a party in a court through FAME (Rule 38 S1) 2. Basis: R52 S1 AFTER FINALITY OF JUDGMENT: Any of the following remedies: o Judgment kasi is based on evidence ex parte.CA judgment. or other proceeding on the ground of entry of such judgment or final order.no evidence to review because no evidence in the first place is presented by defendant GENERAL RULE: certiorari is not a substitute for lost appeal. speedy remedy Denied. or resolution can be elevated to the SC raising only questions of law BEFORE JUDGMENT BECOMES FINAL AND EXECUTORY: REMEDY: Motion to set aside judgment or final order due to FAME Denied. within 15 days from notice of the denial of petitioner’s motion for reconsideration filed in due time after notice of the judgment. File petition for relief from judgment. Remedy? File a motion for reconsideration of the judgment or final resolution within 15 days from service thereof before the CA. Basis: R45 S2 and R45 S1-. adequate remedy Denied. 1. EXCEPTION: when appeal is not a speedy.

Chavez 3.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. File petition for certiorari (Rule 65) Answer to amended complaint 4. FILING OF ANSWER Answer. Collateral Attack Answer to amended counterclaim V.the pleading setting forth the defending party’s defenses (Bears the same parts of a pleading) WITHIN WHEN? What are the responsive pleadings? Rule 6 of the Rules of Court in relation to Rule 11 provides for the following responsive pleadings: Answer to the original complaint Answer to amended cross claim Answer to amended 3rd 4th etc party complaint Answer to amended complaint in intervention Answer to supplemental complaint Rejoinder Compulsory counterclaim Answer to counter counterclaim Answer to the permissive counterclaim Answer to counter cross claim Answer to cross claim Answer to amended counter counterclaim Answer to 3rd 4th etc party complaint Answer to amended counter cross claim Answer to complaint in intervention Reply 102 .

answer shall be filed within 30 days after receipt of summons by the home office of the foreign private entity R11 S4 A permissive counterclaim must be answered within 10 days from service 4. and summons is made on the proper government office designated by law to receive the same (SEC). In case of a non resident defendant in whom extraterritorial service of summons is made. answer shall be filed within the time specified in the order granting leave to serve summons by publication which shall not be less than 60 days after notice. 2. Chavez Discuss the periods to answer to responsive pleadings under Rule 11 of the Rules of Court: 1. answer shall be filed within 15 days from service of summons to him - when it has no resident agent but has an agent or officer in the Philippines. Compulsory counterclaim (note above periods?) - to a resident agent. within which the defendant must answer. unless a different period is fixed by the court R13 S2 Where the defendant is a foreign private juridical entity and service of summons is made: In case of summons by publication. the period to answer should be at least 60 days. Answer to cross claim R11 S4 A cross claim must be answered within 10 days from service R14 S15 103 .Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Answer to the original complaint R13 S1 Defendant shall file answer to the complaint within 15 days after service of summons. Answer to permissive counterclaim - if it has no resident agent nor an agent or officer. answer shall be filed within 15 days after service of summons to said agent or officer 3. which will then send a copy thereof by registered mail within 10 days to the home office of the foreign private corporation.

unless a different period is fixed by the court A supplemental complaint may be answered within 10 days of the order admitting the same. unless a different period is fixed by the court. follow R11 S1. Amended 34etc PC. The answer to the complaint shall serve as answer to the supplemental complaint if no new or supplemental answer is filed. Amended CII Answer within 10 days from service 104 . Reply R11 S6 A reply may be filed within 10 days from service of the pleading responded to (?) 8. Chavez 5. amended 3rd 4th etc party complaint. Answer to amended complaint R11 S3 Where plaintiff files amended complaint as a matter of right. Answer to 3rd 4th etc party complaint R11 S5 Time to answer a 3rd 4th etc party complaint shall be governed by the same rule as the answer to the complaint (hence.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Answer to supplemental complaint R11 S7 6. the defendant shall answer the amended complaint within 10 days from notice of the order admitting the same R11 S4 (?) 9. 11. Rejoinder 7. amended cross claim. Amended CC. amended complaint in intervention 10. 2 plus amendments) R11 S3 (note the period) shall apply to the answer to an amended counter claim. Answer to complaint in intervention R19 S4 The answer to the complaint in intervention shall be filed within 15 days from notice of the order admitting the same. the defendant shall answer the same within 15 days after being served with a copy thereof Where its filing is not a matter of right.

case is dismissed with prejudice.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. not result in default Not an initiatory pleading Docket fees are suspended presence of third parties over which the court cannot acquire jurisdiction Not barred even if not set up in the action Must be answered or else defendant can be declared in default Initiatory pleading With docket fees Answer may raise counterclaim or cross claim Answer in third party complaint.Can you raise Counterclaim or cross claim? YES! But. if counterclaim against counterclaim. without prejudice to counterclaim It may require for its adjudication the DEFENSES and DENIALS 105 . R11 S3 (?)—note the periods presence of third parties over whom the court cannot acquire jurisdiction Barred if not set up in the action Need not be answered. proceed after service of answer (Rule 17 S1 and 2) Counterclaim with respect to Rule 18 Plaintiff failed to appear in pre trial. then counter cross claim Counterclaim Any claim which a defending party may have against the opposing party Cross Claim Any claim by one party against a co party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein Omitted counterclaim or cross claim REMEDY: amend the answer Motion to dismiss with counterclaim If permissive counterclaim. Chavez 17-18. independent sa main action Counterclaim with respect to Rule 17 Compulsory Counterclaim Arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim Does not require for its adjudication the Permissive Counterclaim Does not arise out of nor is necessarily connected with the subject matter of the opposing party’s claim Pwede. counter counterclaim IF cross claim against cross claim. PWEDE Kasi.

Fraud b. Release d. The affirmative defenses include: a. while hypothetically admitting the material allegations in the pleading of the claimant. Illegality f. Equivalent to motion to dismiss By specifically denying the averment and whenever practicable. may be pleaded as an affirmative defense in the answer Motion to set affirmative defense for hearing. case is dismissed. Statute of limitations c. Estoppel h. Discharge in bankruptcy Any other matter by way of confession and avoidance Kinds of Denials: 1. 2. defending party to present evidence first  INVERTED TRIAL Affirmative defense is granted. Former recovery i. Chavez What are the types of defenses? 1. Statute of frauds o During hearing. Remedy? APPEAL (Because trial is on the merits) With respect too negative defenses. setting forth the substance of the matters relied upon for such denial With support dapat 106 .Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Negative defense R6 S5 Negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. Payment e. Specific Absolute Denial - Ground for motion to dismiss (if M2D not filed or M2D denied). would nevertheless prevent or bar recovery by him. note SPECIFIC DENIALS What is a negative pregnant? General denials are deemed admissions Plaintiff’s remedy in such a case? JUDGMENT ON THE PLEADINGS (Rule 34) g. Affirmative defense R6 S5 An affirmative defense is an allegation of new matter which. j.

no need to verify EXCEPT: 1.. Summary procedure 2. judgment on the pleadings By an allegation of lack of knowledge or information sufficient to form a belief as to the truth or falsity of the averment in the opposing party’s pleading Except: 1. which serves as basis for filing of the complaint - 107 . Partial specific denial 4. Fraud/forgery 2. parties may resort to: VI.. or else. Actionable Document - Depositions pending action (under R23) Depositions before action or pending appeal (R24) Interrogatories to parties under R25 Admission by adverse party (R26) Production or inspection of documents or things under (Rule 27) - - Document which creates rights. deemed an admission Specific denial in par __ __ __ for lack of knowledge to truth or belief of the same After jurisdiction is acquired by court. 2. Chavez Specifically deny par 2 __ for being untrue. Not a party to the actionable document In good faith. Usury in a complaint 3. MODES OF DISCOVERY Rules 23-28 Specific not necessarily Specific Denial Answer. 3.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Answer with permissive counterclaim - Part admission and part denial With support dapat Not denied under oath an actionable document such as deed of sale or mortgage. Disavowal of knowledge Failure to verify = deemed admitted HENCE. the truth of the matter is that.

After answer and deponent is not confined in prison Scope of examinations: 1. as it can be controverted at the trial in the same manner as though no perpetuation of testimony was ever had BUT. Matter which is relevant to the subject of the pending action 2. Depositions before action or pending appeal (Rule 24) Aka perpetuam rei memoriam 4. Chavez - Physical and mental examination of persons under (Rule 28) - Objective is to perpetuate testimony of a witness for future use o Taken conditionally.a written testimony of a witness given in the course of a judicial proceeding in advance of the trial or hearing upon oral examination or in response to written interrogatories and where an opportunity is given for cross examination Aka depositions de bene esse May be taken with leave of court when: 1. Not restricted by a protective order - - Do not prove existence of any right and the testimony perpetuated is not in itself conclusive proof.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Depositions pending action (R23) Deposition. Not privileged 3. Interrogatories to parties (R25) Purpose is to elicit facts from any adverse party Answers may also be used as admissions of the adverse party Written interrogatories and the answers thereto must be both filed and served. to be used at the trial only in case deponent is not available Discussing each: 1. the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition 3. in the absence of any objection to its taking. either of the existence of any right nor even of the facts to which they relate. Admission by Adverse Party under Rule 26 108 . hence. Deposition of a person confined in prison May be taken without leave of court: 1. After jurisdiction has been obtained over any defendant or over the property which is the subject of the action but before an answer has been filed 2. the answers may constitute as judicial admissions - - 2. and even if the deponent did not testify at the hearing.

Production or inspection of documents or things under Rule 27 Applies only to a pending action and the documents or things subject of the motion must only be those within the possession. custody. or else.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. they must be sufficiently described and identified. Residing 100 km away. the same are not covered by physicianpatient privilege Use of depositions: 1. Chavez - Purpose is to expedite trial and relieve parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry An admission made is for the purpose of the pending action only and cannot be used in other proceedings 6. the facts are deemed admitted. File answer or comment. usually arising in controversy in proceedings for guardianship over an imbecile or insane person. or custody of a party This mode of discovery is available in an action in which the mental or physical condition of a party is in controversy. hence. Physical and Mental Examination of Persons under Rule 28 - - 5. or else. Should constitute or contain evidence material to any matter involved in the action and which are in the party’s possession. sick or infirm The documents to be produced must have the following requisites: 1. copying. no issue. Impeach adverse party’s witness (relate to evidence) 2. control.Relate to R134 (Deposition) Interrogatories/Admission by adverse party 1. Should not be privileged 2. judgment on the pleadings Production/Inspection of documents or things For photographing. inspecting 109 . In a petition for production of papers and documents. the petition will not prosper This mode of discovery does not authorize the opposing party or clerk or other functionaries of the court to distrain the articles or deprive the person who produced the same of their possession. while the physical condition of the party is generally involved in physical injuries cases Since the results of the examination are intended to be made public. or control 3. even temporarily R23 R24.

because the requesting party has the secondary evidence - At any time before service of the answer or of a motion for summary judgment Before filing responsive pleading or motion for summary judgment 2.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. because such is in the presence of adverse party. the requesting party can ask for production of the original by way of notice Without prior knowledge as to contents With prior knowledge of contents of the document. Chavez Production or Inspection of Documents or Things Mode of discovery By motion Subpoena Governed by Rule 101 Special proceeding Governed by Rule 28 Mode of discovery File a motion Any party may avail of Process By request File a petition Filed by Regional Director of DOH Production or Inspection of Documents or Things Mode of discovery By motion Original of Evidence in Custody of Adverse Party Exception to the best evidence rule By notice Another remedy which may be availed of: MOTION TO DISMISS BY PLAINTIFF (Rule 17) What are the grounds for dismissal under Rule 17? 1. by way of motion without prejudice to counterclaim May be filed independently or separately 110 . Dismissal upon notice by plaintiff (R17 S1) If there is no original document. Dismissal upon motion by plaintiff (R17 S2) Upon approval of the court and Upon such terms and conditions as the court deems proper Mental and Physical examination of Persons vs Hospitalization of Insane Persons Hospitalization of Insane Persons Physical and Mental examination of persons With answer.

upon motion of plaintiff 111 . plaintiff filed notice of dismissal of the first complaint. First complaint filed by plaintiff before court of competent jurisdiction 2. At any time before service of answer or of motion for summary judgment. Plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint Plaintiff fails to prosecute his action for an unreasonable length of time Exceptions to 2 Dismissal Rule: Plaintiff fails to comply with these Rules or any order of the court 1.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. upon notice by plaintiff Unless otherwise stated in the notice. including the same claim before court of competent jurisdiction 4. which the court granted (effect without prejudice) (*2 dismissal rule) .. Elements of 2 dismissal rule: (R17 S1) 1. Dismissal due to fault of plaintiff. Second complaint filed by plaintiff involving an action based on or (S2). 1st action is not related to the second action What is the 2 dismissal rule? What are its elements? (R17 S1) -.. when for justifiable cause. the dismissal is without prejudice. Chavez 3. plaintiff filed notice of dismissal of the second complaint based on or including the same claim as the first complaint Effect of 2 dismissal rule (R17 S1): The second notice of dismissal shall operate as an adjudication upon the merits. At any time before service of answer or of motion for summary judgment.the notice of dismissal by plaintiff operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim 2. Court dismissing the second action is a court not of competent jurisdiction Nature of Dismissal of actions under Rule 17: (S1).except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim 3.

dismissal due to fault of plaintiff Appeal the dismissal If the court declares that the dismissal is without prejudice. What are your remedies. refile the case irrelevant allegations immaterial allegations allegations of damages in the complaint Judgment on the Summary 112 . unless otherwise specified in the order Another: JUDGMENT ON THE PLEADINGS (Rule 34) S1 (S3). as plaintiff. in such cases? S1. Chavez The dismissal shall be without prejudice.dismissal upon notice by plaintiff refile the case (unless the 2dismissal rule applies [?]) the court may.dismissal upon motion of plaintiff Refile the case Exception that JoP be on motion: if at pre trial court finds that judgment on the pleadings is proper. due to fault of plaintiff The dismissal shall have the effect of an adjudication upon the merits unless otherwise declared by the court Where the answer fails to tender an issue or otherwise admits the material allegations of the adverse party’s pleading. it can render such judgment motu proprio If the court declares that the dismissal is with prejudice.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. on motion of that party. appeal the dismissal the material facts alleged in the complaint shall always be proved S2. direct judgment on such pleading However. in an action for declaration of nullity or annulment of marriage or for legal separation. or if so declared with prejudice. appeal the dismissal Allegations not deemed admitted by filing of judgment on the pleadings: S3.

yes If filed by defendant.may be filed within 10 days from service of the pleading responded to Reply to answer to permissive counterclaim VIII. a pre trial is to be conducted upon motion ex parte by plaintiff that the case be set for pre trial Interlocutory or on the merits If filed by plaintiff. If a party does not file such reply. the office or function of which is to deny or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. all the new matters alleged in the answer are deemed controverted. admissions. affidavits No genuine issue between the parties Second pleading on the party on the part of defendant being his answer to the plaintiff’s replication Another form of responsive pleading Answer fails to tender an issue or there is an admission of material allegations On the merits There is answer filed IX. PRE TRIAL (Rule 18) Rule 18 S1 COMPLETE: AFTER the LAST PLEADING ASSERTING A CLAIM has been served and filed. Chavez Pleadings 3 day notice rule Filed by plaintiff Based solely on the pleadings Judgment 10 day notice rule Filed by defendant Based on pleadings. REPLY (R6 S10) A pleading. or AFTER the EXPIRATION OF THE TIME FOR FILING THE LAST PLEADING ASSERTING A CLAIM. REJOINDER Answer to cross claim Answer to third party complaint Answer to complaint in intervention Reply to answer 113 .Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. filed at any time before answer is served Pre Trial Conference. R11. may be filed at any time even before answer Answer Answer to permissive counterclaim VII. depositions.

is the case dismissed for failure to prosecute? Techinically. the clerk of court shall issue notice of pre trial conference Failure of defendant to appear. and without acceptable excuse for lack of cooperation. within 30 days from the date the court acquires jurisdiction over the accused Rule 118 No pre trial brief After the last pleading asserting a claim has been served and filed Rule 18 Pre trial brief is required to be filed and served Parties and counsel Presence of private offended party is not required (as only required to appear at arraignment) Prê trial agreement is in writing. plaintiff to present evidence ex parte Pre Trial in Criminal Cases Pre Trial in Civil Cases Mandatory requirement After arraignment. or representative shall appear in behalf duly authorized in writing to enter into amicable settlement. or else. signed by accused and counsel. submit to ADR. o It is not dismissed Failure of counsel of accused or prosecutor to appear. enter into stipulations of facts and of document Failure of plaintiff to appear. court may impose proper sanctions or penalties Non appearance may be excused only if valid cause is shown. yes. if plaintiff failed to file motion ex parte that the case be set for pre trial. dismissal of the case with prejudice. unless otherwise ordered by the court Hence.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. cannot be used against accused Considerations in pre trial conference: Signed by parties and counsel (?) Considerations in pre trial: Counsel of accused 114 . Chavez Reply to answer to cross claim and prosecutor are required to appear are required to appear Reply to answer to third party complaint Reply to answer to complaint in intervention Rejoinder By MOTION If the motion is not filed. but ff R1 S6 (liberal construction.

summary judgment.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. dismissing the action should a valid ground therefor be found to exist Modification of order of trial if accused admits the charge but interposes a lawful defense Such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof Advisability or necessity of suspending the proceedings Such other matters as may aid in the prompt disposition of the action Limitation on the number of witnesses (simplified) Pre Trial In Criminal After arraignment Pre Trial in Civil After last pleading asserting a claim has been served and filed With pre trial brief Advisability of preliminary conference of issues to No pre trial brief 115 . Chavez Plea bargaining Stipulation of facts Marking of identification of evidence of the parties Possibility of amicable settlement or submission to alternative modes of dispute resolution commissione r Simplification of the issues Waiver of objections to admissibility of evidence Necessity or desirability of amendments to the pleadings Propriety of rendering judgment on the pleadings.

The necessity or desirability of amendments to the pleadings a. A summary of stipulated facts and proposed stipulation of facts e. their respective pre trial briefs which shall contain. dismissal of case with prejudice f.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. plaintiff to present evidence ex parte h. Such other matters as may aid in the prompt disposition of the action S6. among others: b. in such manner as shall ensure their receipt thereof at least 3 days before the date of the pre trial. The simplification of the issues c.Pre trial brief The parties shall file with the court and serve on the adverse party. The limitation of the number of witnesses c. The advisability of a preliminary conference of issues to a commissioner g. indicating the desired terms thereof d. sanctions against counsel and prosecutor Failure to appear by plaintiff. The advisability or necessity of suspending the pleadings What are the purposes of pre-trial? (Rule 18 S2) The court shall consider: a. A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution. The propriety of rendering judgment on the pleadings or summary judgment or of dismissing the action should a valid ground therefore the found to exist Failure to appear by defendant. The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution i. The issues to be tried or resolved 116 . The possibility of obtaining stipulations of admissions of facts and of documents to avoid necessary proof b. Chavez Order of pre trial signed by accused and counsel so admissions are binding Failure to appear.

The documents or exhibits to be presented.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. unless otherwise ordered by the court. PRE TRIAL BRIEF Required to be filed at least 3 days before the Pre Trial Conference Ensure na really good. same effect Requisites for appearance at the pre trial: (R18 S4) 1.representative is armed with SPECIAL POWER OF ATTORNEY If party is a JURIDICAL PERSON (corporations or partnerships)representative is armed with BOARD RESOLUTION (Board resolution is binding upon the entire corporation. The number and names of the witnesses. The dismissal shall be with prejudice. bawat pleading) —pagkakitaan Effects of failure to appear at the pre trial: Plaintiff fails to appear R18 S5 Failure to file at pre trial brief = failure to appear at pre trial. may bayad. because the Board of Directors [in case of stock corporations] or the Board of Trustees [in case of non stock corporations] are the ones who make the decisions of the corporation through Board Resolution-note that Board Resolution prevails over SPA) f. Duty of the parties and their counsel to appear at the pre trial The failure of plaintiff to appear at the pre trial conference when so required shall be cause for the dismissal of the action. Chavez d. Defendant fails to appear R18 S5 The failure of defendant to appear at the pre trial conference shall be cause to allow 117 . A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners If party a NATURAL PERSON. stating the purpose thereof 2. and the substance of their respective testimonies Failure to file the pre trial brief shall have the same effect as failure to appear at the pre trial. for filing memoranda (all remedies. The non-appearance of a party may be excused only if a valid cause is shown therefor or IF A REPRENTATIVE SHALL APPEAR IN HIS BEHALF FULLY AUTHORIZED IN WRITING e.

a LAWYER o Hence. 4 SCENARIOS ARE CONTEMPLATED: Issuance of order allowing ex parte presentation of evidence/before presentation of evidence Order allowing ex parte presentation of evidence was issued. no appeal may be taken from it. hence. plaintiff presents ex parte evidence Before judgment becomes final and executory After judgment becomes final and executory PRESENTATION OF EVIDENCE EX PARTE Conducted by Court of CLERK OF COURT Clerk of court. hence. if judge delegated to clerk of court who is not a lawyer.whether such m4r is required or not. BAWAL - - - Can clerk of court charge Commissioner’s Fee? BAWAL accdg sa Manual of Clerk of Court (ugat ng corruption) The only time na pwede is when he is not an employee of a court 118 . R41 (1). which in such a case. defendant would be avail of the remedy of refiling the case or filing a petition for certiorari under Rule 65 - If M4R denied.. unless the dismissal is ruled to be without prejudice. hence.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. which includes certiorari Defendant fails to appear NOTE: Defendant WILL NOT BE DECLARED IN DEFAULT! Likewise. Chavez the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof.. aggrieved party may file the appropriate special civil action under Rule 65. file petition for certiorari under Rule 65 R41 (1).the order allowing ex parte presentation of evidence is an interlocutory order. based on R65 S4 and R41 S1 R65 (4). no appeal may be taken from it Remedies in case of failure to appear by plaintiff / defendant: Plaintiff fails to appear Plaintiff can file an appeal. File motion for reconsideration..the order allowing ex parte presentation of evidence is an interlocutory order. there is no such thing under the 1997 Rules on Civil Procedure AS IN DEFAULT (sa luma to) When defendant fails to appear. ORDER ALLOWING PLAINTIFF’S PRESENTATION OF EVIDENCE EX PARTE REMEDIES: The order is interlocutory.

speedy and adequate remedy in the ordinary course of law - Appeal the judgment (Rule 41) or - File motion for reconsideration (Rule 37) or Ground: that the evidence is insufficient to justify the decision or final order - Make a collateral attack on the judgment 119 .the order allowing ex parte presentation of evidence is an interlocutory order. no appeal may be taken from it. or other proceedings under Rule 38 or o GROUND: any proceeding is thereafter taken against the party in any court through FAME If the motion for reconsideration + motion to set aside is denied. and there is no appeal nor any plain. aggrieved party may file the appropriate special civil action under Rule 65. file a petition for certiorari under Rule 65 R41 (1). Chavez REMEDIES: File a motion for reconsideration + Set aside the Evidence Ex parte on the ground that the order is contrary to law [R37]? OR. order. which includes certiorari - File for annulment of judgment. the evidence shall form part of the records of the case – kawawa ka cge - File a motion for new trial (Rule 37) Ground: FAME which ordinary prudence could not have guarded against and by reason of which such aggrieved party has been impaired in his right - After judgment becomes final and executory REMEDIES: - File Relief from judgment. hence. that. final order. the order allowing ex parte presentation of evidence is an interlocutory order) if you fail this. or resolution under Rule 47 or o GROUND: extrinsic fraud Before judgment becomes final and executory REMEDIES: - File petition for certiorari under Rule 65 or o GROUND: GAD amounting to lack or excess of jurisdiction on the part of the tribunal exercising judicial functions.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E.

8) - Avoid except in preliminary matters 120 . WHEN. in accordance with purpose in pre trial brief o Pre Trial conference. WHERE. X. Chavez Pre Trial Order Order issued by the court stating what transpired during the pre trial conference o o Can be amended accordingly By filing motion to amend or correct the pre trial order. WHY CONSIDER violations and exceptions: Leading Questions (Rule 30 in relation to Rule 132 S4. PROPONENT’S / PLAINTIFF’S TESTIMONIES AND EVIDENCE IN CHIEF as well as that of witnesses With respect to Rule 7 (parts of a pleading) stating the cause of action in the body of the pleading Ultimate facts to be proven during the trial of the case ORDER: Direct Examination Transform allegations of the complaint in the body of the pleading Cause of action Direct testimony Show sinumpaang salaysay Cause of action admitted by defendant. for purposes of substantial justice Pre Trial May be delegated to clerk of court who is a lawyer After PRE TRIAL. offer of testimony. within 5 days after receipt of the pre trial order NO NEED for counsel to sign the pre trial order A proceeding where parties present evidence and ends in oral argument With respect to examination of witnesses Pre trial brief (see above) presented in trial All witnesses in pre trial brief to be presented Before witness is presented. WHAT. 6. Rule 18 in relation to Rule 34  JUDGMENT ON THE PLEADINGS Conclusive on part of admitter. TRIAL The best part of law practice - HOW.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. 5.relates to judicial admissions under Rule 129 Adverse party admits your proposals/stipulations Deemed admitted 1. 7.

121 . ipa correct After presentation of all witnesses. preliminaries Is your name Ms X? Leading Is your age 27? Leading TSN is best evidence of what transpired during trial • To impleach testimony of witness To refresh memory of the witness Ididiscuss din to isa isa sa memorandum • Misleading questions • Cross Examination Requires knowledge of: Facts Evidence Defenses questions are allowed Re Direct Examination Re establish what was destroyed during the cross examination Re Cross Examination Destroy what was re established in the re direct examination NOTE: Identify all witnesses Offer of Testimony Made at the time the witness is presented on the witness stand Offer of Evidence After termination of presentation of evidence of prosecution Leading Totoo bang ikaw ay maganda? Leading Obtain affirmative answers...Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. YES Executed sometime. adverse party. etc.pag may mali.GOOD Line of questioning: Is it not a fact you are 1 of. minors. but from credible testimony Evidence in chief Evidence supporting allegations in the complaint - o WHY? Asa TSN. YES NOTE: Lead mo papunta sayo Test credibility of witness.. test credibility of testimony Not from the mouth of credible witness.. Chavez - Propound answers which proponent desires  NOTE EXCEPTIONS: hostile witnesses.

Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez

Offer of evidence

Then, Comment or objection Secondary Not identical

If granted but on appeal order of dismissal is reversed, defendant is deemed to have waived the right to present evidence

With prejudiceappeal Without prejudicerefile

Both by way of motion

Then, Order of admission/Exclusion of evidence Admitted; Exh A, Exh B Excluded: Exh C, etc TENDER OF EXCLUDED EVIDENCE Considered by CA in appeal

NOTE: in summary proceedings, no trial, no demurrer to evidence In Criminal Cases, There is demurrer to evidence in Summary Procedure Constitutional Right to Due process

Demurrer to evidence in Civil Procedure Rule 33 No leave of court required

Demurrer to evidence in Criminal Procedure Rule 119 S23 With or without leave of court

After PLAINTIFF RESTS ITS CASE, (defendant may file) DEMURRER TO EVIDENCE (Rule 33) D2E vs M2D (simplified) D2E Rule 33 After plaintiff rests its case That plaintiff has shown no right of relief If granted, case dismissed Rule 16 Before filing of responsive pleading 10 grounds M2D

If with leave of court, accused could present evidence if demurrer is denied

If granted, case dismissed, remedy depends:

If without leave of court, accused could not present evidence if demurrer is denied If court finds that evidence is insufficient (plaintiff If court finds that prosecution’s evidence is

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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez

has shown no right to relief), complaint dismissed as demurrer is granted

insufficient, demurrer granted, accused is acquitted

and submits case for decision based on prosecution’s evidence

Judgment of acquittal not appealable, hence, DJ sets in Judgment of dismissal is appealable Judgment of acquittal is not appealable; DJ sets in

(simplified version)

D2E Civil Rule 33 With or without leave of court

D2E Criminal Rule 119 S23 With LoC- if denied, accused presents evidence

If demurrer is granted but on appeal, order of dismissal is reversed, defendant is deemed to have waived the right to present evidence

If granted, but on appeal is reversed, defendant loses the right to present evidence, case submitted for decision

Without LoC- if denied, defendant cannot present evidence

(NO res judicata in dismissal due to demurrer) Plaintiff files motion to deny motion due to demurrer to evidence If court denies demurrer, defendant will present evidence Court may motu proprio deny motion

After plaintiff rests its case, no D2E or D2E denied no appeal, 2. DEFENDANT’S EVIDENCE IN CHIEF

If court denies demurrer, Order: With LoC- accused may present evidence

Prove allegations in the body of the answer (R7 S1)

Direct Examination Cross Examination Re Direct Examination

W/O LoC- accused can no longer present evidence

Re Cross Examination Formal offer of evidence

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Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Chavez

Comment Objection Offer Tender of excluded evidence DEFENDANT RESTS ITS CASE Note: No more D2E- Rule 33- after PLAINTIFF rests its case...

Final consideration and determination of a court of competent jurisdiction upon the matters submitted to it in an action or proceeding S1- Rendition of judgments and final orders: A judgment or final order determines the merits of a case, shall be in writing, personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, must contain a dispositive part, signed by him, and filed with the clerk of court

3. REBUTTAL EVIDENCE

-

Purpose is to rebut defendant’s evidence in chief Order: (same as previously stated) 4. SUR REBUTTAL EVIDENCE -

Purpose is to rebut the rebuttal Order: (Same as previously stated)

CONSTITUTIONAL BASIS: A8 S14—(basis for Rule 36) No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without starting the legal basis therefor.

5. MEMORANDUM

Narration of facts of the case, issues, no cause of action, no defenses, but only contain discussions

After trial, XI. JUDGMENT (Rule 36)

Kinds of Judgments: JUDGMENT UPON A COMPROMISE

Declares rights/reliefs of parties

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NCC) Court could render judgment upon a compromise. in case of breach of any of the conditions. the party may ask the court for execution of judgment. Chavez - Judgment rendered by the court on the basis of compromise agreement entered into by the parties Immediately executory upon signing of compromise agreement in absence of motion to set aside on the ground of FAME Has effect of res judicata Compromise agreement May be submitted to by parties at any stage of a case. After pleading and before trial. defendant both confesses the plaintiff’s cause of action and withdrew or abandoned his plea or other allegations.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. file petition for certiorari under Rule 65 (R41 S1) Judgment upon compromise Provisions and terms are settled and agreed upon by the parties to the action and which is entered by the consent of the court Judgment by confession An affirmative and voluntary act of defendant himself. and. even after F and E. compromise: File motion to set aside Judgment rendered by court when a party expressly agrees to the other party’s claim or acknowledges validity of the claim against him If denied. even without court approval Judgment by Cognovit actionem - Defendant after service instead of entering a plea. The court exercises a certain amount of supervision over the entry of judgment JUDGMENT UPON THE MERITS Judgment that is rendered after consideration of the evidence submitted by the parties during the trial of the case CLARIFICATORY JUDGMENT 2 kinds of judgment by confession: 125 . acknowledged and confessed that plaintiff’s cause of action was just and rightful - Judgment by Confession Relicta Verificatione (A2028-2046. whereupon judgment was entered against him without proceeding to trial JUDGMENT UPON CONFESSION Remedies to judgment by consent. confession.

granting the claiming party the relief prayed for on the basis of his evidence presented ex parte by plaintiff Judgment rendered by the court where in an action against several defendants. Chavez Judgment rendered to clarify an ambiguous judgment or one difficult to comply with otherwise admits the material allegations of the adverse party’s pleading JUDGMENT NON PRO TUNC SUMMARY JUDGMENT (R35) Now for then Judgment intended to enter into the record the acts which had already been done. supporting affidavits. the court renders judgment against one or more of them. depositions and admissions of plaintiff or defendant show that: JUDGMENT SIN PERJUICIO Without prejudice Refers to dismissal of a case without prejudice to its being refiled R36 S4 JUDGMENT BY DEFAULT (R9 S3) except as to the amount of damages. leaving the action to proceed against the others SEPARATE JUDGMENT JUDGMENT ON THE PLEADINGS (R34) Judgment rendered by the court upon motion by plaintiff where the answer of defendant fails to tender an issue or R36 S5 Judgment rendered disposing of a claim among several others presented in a case after a determination of issues material to a particular claim and all counterclaims arising out of the 126 . but which do not appear in the records Judgment rendered by the court if the pleadings. there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SEVERAL JUDGMENT Judgment rendered by the court following an order of default.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E.

leaving nothing to be done by the court but to enforce in execution what has been determined JUDGMENT FOR SPECIFIC ACTS R39 S10 Judgment of a court directing a party to execute a conveyance of land or personal property or to deliver deeds or other documents. Chavez transaction or occurrence which is the subject matter of said claim and the law on the matter. on the ground that upon the facts presented by plaintiff Judgment of the court which serves to bolster or add to the original judgment. and does not take place nor extinguish the original judgment Conclusiveness of judgment 127 . or by law. plaintiff has not shown any right to relief SPECIAL JUDGMENT R39 S11 Judgment requiring performance of an act other than execution of judgments for money execution of judgments for a specific act. a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. or upon any other person required thereby. to obey the same. it is an entirely new judgment. or to perform any other specific act in connection therewith AMENDED JUDGMENT Aka clarified judgment. made after plaintiff rested his case. and such party or person can be held liable for contempt for disobedience of such special judgment CONDITIONAL JUDGMENT Judgment wherein effectivity of such depends upon occurrence or non occurrence of an event FINAL JUDGMENT Judgment which disposes of the whole subject matter or terminates the particular proceedings or action. which supersedes an original judgment rendered by the court SUPPLEMENTAL JUDGMENT JUDGMENT ON DEMURRER TO EVIDENCE R33 judgment rendered by court dismissing case upon motion of defendant.

Motion for Reconsideration (Rule 37) R37 S1 Within the period for taking an appeal. Damages awarded are excessive Obiter Dictum b. MOTION FOR CLARIFICATORY JUDGMENT NOTE: M4R here is directed against judgment or final order.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. not an interlocutory order which preceded petition for certiorari (R41 S1 in relation to R65 yon) NOTE: Interlocutory orders are non appealable (AM 7-7-12-SC) Under Summary Procedure. BAWAL ang M4R and MNT R37 (General Rule) Exception: If against interlocutory order XII. That the decision or order is contrary to law If after judgment is promulgated. a motion for reconsideration may move for reconsideration on the grounds that: a. Chavez Reopening of Trial (Rule 119) Res Judicata (note above) Appeal (Rules 40-43. 45) Stare Decisis 1. Motion for New Trial (Rule 37) Motion for New Trial (Rule 37) - Motion to Rehear a case already decided by court but before 128 . Evidence is insufficient to justify the decision or final order Law of the Case c. REMEDIES BEFORE JUDGMENT BECOMES FINAL AND EXECUTORY: Motion for reconsideration (Rule 37) 2. the judgment is ambiguous and difficult to comply.

Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Partition) Neypes vs CA Fresh Period to Appeal: 15 days from denial of M4R/MNT 30 days from denial of M4R/MNT MTC decisions 2. order of denial.for reason of admission of additional evidence Petitio n4 review on certior ari under SC SC M4R Rule 52 4. APPEAL (Rules 40-43. FAME which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his right or 30 days. with reasonable diligence.for reasons of EQUITY For criminal cases.Expropriation. to set aside the judgment or final order order and grant a new trial based on the ff grounds materially affecting substantial rights of a party: (R37 S1) 1. 45) - from the judgment.record on appeal (Spec Pro. Chavez judgment thereon becomes final and executory. assignment of errors o FINAL ORDER. Multiple Appeals. filed within the period for taking an appeal. Reopening of Trial (civil in relation to criminal procedureR119 S24) Reopening of the proceedings to avoid miscarriage of justice Civil.ordinary appeal 129 . have discovered and produced at the trial and which if presented would probably alter the result MTC M4R Under Rule 37 RTC Notice / Record on Appeal under R40 Petition for Review under Rule 42 (from RTC decisions in exercise of appellate jurisdicti on) CA M4R Under Rule 52 3. Newly discovered evidence which he could not.decision or the denial of M4R or MNT 15 days.

appellant’s Brief 45 days to file record on appeal 4. When findings of fact are conflicting 6. Sandiganba yan. Chavez Record on appeal or record on appeal Of RTC Decision s original jurisdicti on for Review for Review (Appeal ?) Of quasi judicial bodies Review on Certiorari Of MTC decisions Of RTC decision s appellat e jurisdicti on Question s of fact law. When CA in making its findings went beyond the issues of the case and the same is contrary to both Memorand um of appeal Notice or Appellan t’s Brief Petition for Review Petition Petition for Review on Certiorari Petition for Notice 130 . CTA. When there is GAD in appreciation of facts Rule 40 Rule 41 Rule 42 Rule 43 Petition For Review Petition Rule 45 5. When finding is grounded entirely on speculations. conjecture SC M4R Rule 52 2. or both To CA Of CA. RTC decisions RTC decisions in exercise of original jurisdiction RTC Questions of fact law or both Question s of fact law or both To CA Questio ns of fact law or both To CA Questions of law To RTC To SC M4R Under Rule 37 Notice or Record on appeal under Rule 41 CA General Rule: Finding of fact of CA are final and conclusive and cannot be reviewed on appeal to SC: SC M4R Under Rule 52 EXCEPTIONS: Petitio n4 review on certior ari under 1. mistaken. When inference is manifestly absurd. When judgment is premised on a misrepresentation of facts Notice/Record on Appeal In case of Record on Appeal. surmise.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. or impossible 3.

order.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. would alter the result of the case in that they would entitle accused to acquittal 2. Ground: extrinsic fraud Annulment of judgment 131 . he may file a petition in such court and in the same case and praying that the appeal be given due course.Petition for relief from denial of appeal When judgment or final order is rendered by court in any case. he may file a petition in such court and in the same case praying that the judgment. when certain material facts and circumstances which have been overlooked by the trial court which. When findings of fact are conclusions without citation of specific evidence on which they are based S2. when findings of fact of the CA is premised on supposed evidence and is contradicted by evidence on record Filed within 60 days from knowledge of judgment and within 6 months from entry of judgment - Relate to appeal o Failure to appeal due to FAME 11. or any other proceeding is thereafter taken against a party in any court through FAME. or proceeding be set aside OTHER PROCEEDING INCLUDES: o o Order or writ of execution Order dismissing appeal 8. Petition for relief from Judgment (Rule 38) S1. if taken into account. by FAME. When facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by respondents 10. other proceedings judgment.Petition for relief from orders. Chavez the admissions of appellants and appellees 7. Petition for Annulment judgment (Rule 47) RTC exclusive original jurisdiction to CA MTC exclusive original jurisdiction to RTC of REMEDIES AFTER JUDGMENT BECOMES FINAL AND EXECUTORY: 1. When findings of fact of CA are at variance with those of the trial court. has been prevented from taking an appeal. the SC has to review the evidence in order to arrive at the correct findings based on record When a judgment or final order is entered. and a party thereto. 9.

mandamus or appeal is the proper remedy Nature of writ of execution: R39 S8 4. upon judgment or order that disposes of the action or proceeding S2. appeal from. Collateral Attack The writ of execution is issued in the name of RP and shall state: e. by MOTION Execution as a matter of right (R39 S1) Execution shall issue as a matter of right. 1. file petition for relief against. Extrinsic or collateral fraud 2.10 YEARS. Case number Execution remedy afforded by law for the enforcement of a judgment g. or take other appropriate remedies assailing questioned judgment or final order or resolution through no fault attributable to him Revival of Judgment. Chavez - Remedy in law independent of the case where the judgment sought to be annulled was rendered and may be availed of though the judgment has been executed - object is to obtain satisfaction of the judgment on which the writ is issued BY MOTION.5 years AFTER 5 years Important condition: Petitioner failed to move for MNT. Certiorari under Rule 65 IF DENIED.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Dispositive portion of the judgment or order subject of the execution 132 . Lack of jurisdiction over subject matter and over the person a.Grounds 1. Name of court which granted the motion EXECUTION OF JUDGMENT Nothing left for the court but to enforce its decision f. upon expiration of period to appeal therfrom if no appeal has been duly perfected NOTE: (rules on motion) ministerial on the part of the court 3. on motion.

Defective in substance Rule: Matter of right on part of winning party (execution). Judgment is novated by parties Rule: Dispositive portion of decision is the part that becomes subject of execution 3. Improvidently issued 5. Judgment has become dormant 6. Controversy was never submitted to the court 2. Where extensive and explicit discussion and settlement of the issue is found in the body of the decision 5. Shall require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms 3. Equitable grounds like change in situation of the parties which makes execution inequitable Except: 1. Issued without authority 4. and court cannot refuse Except: 1. When judgment turns out to be incomplete or conditional 6. When there is ambiguity in the dispositive portion 4. Judgment is already satisfied 7. Chavez h.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Execution is unjust or impossible S2. and even during appeal Discretionary upon the court. Execution is enjoined 2.Discretionary Execution Discretionary Execution May issue before lapse of period to appeal. Change in situation of parties renders execution inequitable 2. no appeal is perfected Ministerial duty of the court provided there are no supervening events When proper to Quash Writ of Execution: 1. Issued against the wrong party 133 . there is inquiry on whether there is good reason for execution Execution as a matter of right Period to appeal has already lapsed.

There is notice of said motion to the adverse party 3. in case it be affirmed wholly or in part After the trial court has lost jurisdiction. o at the time of the filing of such motion. in its discretion. order an execution before expiration of the time within which to appeal. said court may.  order execution of a judgment or final order even before the expiration of the period to appeal Court may.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. without prejudice to the outcome of appeal S4. Remedy in case of execution as matter of discretion. separate. or partial judgments A several. 1. Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing. CERTIORARI o Interlocutory. provided. There is motion for execution filed by winning party 2. separate.Discretionary execution 2. Chavez S2. Execution of a judgment or a final order pending appeal On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal. There are good reasons stated in a special order after due hearing Supersedeas Bond Bond filed by petitioner and approved by court before the judgment becomes final and executor and conditioned upon performance of the judgment appealed from. in its discretion. Execution of several. Wastage debtor of asset by judgment a. the motion for execution pending appeal may be filed in the appellate court.Judgments not stayed by appeal Grounds: 1. or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal. Insolvency of judgment debtor (Exception to general rule) In the following cases: 134 . b. as the case may be.

other incorporeal property which belong to judgment debtor but is in the possession or under control of a third person 135 . Special proceedings registration cases and land S6. Contempt orders in unauthorized reentry on land by ejected defendant 3. or his assignee. Judgments for support 2. stocks. Garnishment of debts and credits 2. Receivership 3. Chavez 1. how enforced 1. NCC Levy Act by which officer sets apart or appropriates part of whole property of judgment debtor for purposes of execution sale Revival of judgment S6 Independent action Assumes there is no execution within first 5 years Party who files the action is the judgment creditor himself. By motion within 5 years from date of entry S9. Support 5. Immediate payment on demand 2. Issuance of writs of possession and 4.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Other judgments declared to be immediately executory unless otherwise ordered by trial court S6 N/A to: 1. credits. By independent action for revival of judgment after 5 years from entry and before it is barred by statute of limitations which is 10 years from entry under 1144. Injunction 2. or his successor in intereest Filed due to lapse of 5 year period Revival of judgment S34 Carried out through filing of a motion in court Assumes that judgment is executed within first 5 years Party who files such motion is not the original judgment creditor but he is the highest bidder in the public auction Filed because movant is deprived of property purchased Garnishment Act of appropriation by the court when property of debtor is in the hands of a third person Attachment Refers to corporate property in possession of judgment debtor Garnishment Refers to money.Award of judgments of money. Accounting 4.Execution by motion or independent action Modes of enforcement: 1. Satisfaction by levy 3.

Necessary clothing and articles for ordinary personal use. 3 carabaos. Delivery property or restitution of real judgment obligor and his family.Execution of judgments for specific act 1. or any pension or gratuity from government 136 . Lettered gravestones 4. teachers. Judgment obligor’s family home as provided by law. Household furniture and utensils necessary for housekeeping. delivery of deeds. Removal of improvements property subject of execution 5. Sale of real or personal property 3. Professional libraries and equipment of judges. privileges. pharmacists. wages. Delivery of personal property on 7. Right to receive legal support. dentists. or money or property obtained as such support. 3 cows. other professionals.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. engineers. lawyers. of a value not exceeding 100k pesos 6. including jewelry 11. clergymen. and used for that purpose by the 12. 3 horses. or livelihood 9. other specific acts vesting title 2. such as the judgment obligor may select. surveyors. Provisions for individual or family use sufficient for 4 months 4. So much of the salaries. and the land necessarily used in connection therewith 8. not exceeding 300k pesos in value S13. annuities accruing or in any manner growing out of any life insurance 5. Monies. benefits. other beasts of burden such as judgment obligor may select necessarily used by him in his ordinary occupation 10. Ordinary tools and implements personally used by him in his trade. employment. or earnings of the judgment obligor for his personal services within the 4 months preceding the levy as are necessary for support of his family 3. One fishing boat and accessories not exceeding total value of 100k pesos owned by a fisherman and by the lawful use of which he earns his livelihood 2. Chavez S10.Property Exempt from Execution: 1. physicians. Conveyance. or the homestead in which he resides.

or person from whom he seeks to redeem.Proof required of redemption Redemptioner must produce to officer. Ordinary sale on execution Need not be confirmed by court Sale in judicial foreclosure of mortgage Must be confirmed by court in order to divest rights in the property of the parties and to vest the rights in the purchaser No right of redemption except when mortgagee is a bank or a banking institution Title is acquired upon confirmation and registration of the foreclosure sale S16.Proceedings where property claimed by third person Remedies of 3rd party claimant: 1. Persons specially exempted by law BUT not article or species of articles of property mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. If he redeems upon a mortgage or other lien. Chavez Note: Cumulative remedies 13.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. A copy of the judgment or final order certified by the clerk of court wherein the judgment or final order is entered 4. Independent reivindicatory action Terceria A person claiming property levied upon may execute affidavit of title or right of possession over the property o Such affidavit must state the grounds of such right or title The affidavit shall be served upon officer making a levy and a copy thereof must also be served upon the judgment oblige 2. or o 3. Terceria or third party claim filed with sheriff Title is acquired after expiration of redemption period when final deed of conveyance is executed 3. and serve with his notice to the officer: 1. or 137 . certified by RD. An original or certified copy of any assignment necessary to establish his claim. Action for damages on the bond posted by judgment creditors S30. a memorandum of the record thereof. Summary hearing before court of competent jurisdiction Right of redemption exists 2.

If the person alleged to have the property of the judgment debtor or 138 . If after examination.Remedies of judgment creditor in aid of execution 1. and income derived from the property until expiration of the period of redemption S35. Use it in the ordinary course of business 5.Rents. An affidavit executed by him or his agent showing the amount then actually due on the lien 2. Remain in possession of property 3. Chavez 4. He may cause examination of debtor of the judgment debtor as to any debt owed by him or to any property of the judgment debtor in his possession S32. Court may appoint a receiver for the property of the judgment debtor not exempt from execution or forbid a transfer or disposition or interference with such property 6. earnings. Cannot be ejected A party or other person may be compelled. the court may order the sale of such interest 7. Use the property in the same manner it was previously used 4. Collect rents. If court finds that the judgment debtor has an ascertainable interest in real property either as mortgagor. the court may order the property applied to the satisfaction of the judgment 2. he may cause examination of judgment debtor as to his property and income 6. Earnings. it may order payment in instalments 5. If execution is returned unsatisfied. If court finds the earnings of the judgment debtor are more than sufficient for his family’s needs. mortgagee or otherwise. Income of property pending redemption Rights of judgment debtor: 1. the court finds property of the judgment debtor.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. and his interest can be ascertained without controversy. to attend before the court or commissioner to testify as provided by S36 and S37 3. Make necessary repairs to buildings thereon while he occupies the property 4. either in his own hands or that of any person. by order or subpoena.

whether in the lower court or in the appellate court on a subsequent appeal Decisions of court must be immutable at some definite period of time S48. collateral estoppel by judgment or preclusion of issues or rule of auter accion pendent. forbid is transfer and may punish disobedience for contempt subject matter. In case of judgment against a specific thing. Chavez be indebted to him. Second action can be prosecuted Has the effect of preclusion only to issues S47. covers par c Public Policy Principle Inalterability of final and executory judgment Refers to the legal conclusions announced on a first appeal. not only prescribe the duty and limit the power of the trial court to conduct obedience and conformity thereto. estoppel by record. the court may authorize judgment creditor to institute an action to recover the property. but they become and remain the law of the case in all other steps.Effect of judgment or final order Res judicata Bar by former judgment/direct estoppel by judgment Law of the case - Conclusiveness of judgment Estoppel by verdict. causes of action First judgment constitutes absolute bar to all matters directly adjudged and those that might have been adjudged Has the effect of preclusion of claims and subject matter First judgment is conclusive only as to matters directly adjudged and actually litigated in the first action. Conclusiveness of judgment Identity of parties 1.Effect of foreign judgment or final orders Public policy principle Conclusiveness of judgment Issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action - Judgment by a court is enforceable only within its territorial jurisdiction Effect of foreign judgments Provided that jurisdiction the tribunal has Bar by former judgment Identity of parties.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. claims an adverse interest in the property or denies the debt. whether on the general law or the law as applied to the concrete facts. 139 .

Judgment is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title b. Collusion 4. Want of notice 3. a. Collusion 4. a judgment or final order may be repelled by evidence of: 1. Fraud 2. Ordinary action to enforce the foreign judgment may be filed in court or In both instances. the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title In either case. having jurisdiction to render judgment or final order is as follows: 140 . Want of jurisdiction 2. It may be pleaded in an answer or motion to dismiss 5.Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E. Want of jurisdiction 2. Clear mistake of law or fact 2 ways of giving effect to a foreign judgment: 1. In case of a judgment or final order against a person. Want of notice to a party 3. the judgment or final order is conclusive upon the title to the thing and 2. Chavez a. Fraud may be LAST NOTES ON CIVIL PROCEDURE Note latest Rules on ADR (2009) in relation to Rule 18 Effect of foreign judgment: R39 S8 The effect of a foreign judgment or final order of a tribunal of a foreign country. Judgment is conclusive upon title to the thing a. In case of judgment against a person. In case of a judgment or final order upon a specific thing. judgment repelled by evidence of: 1.

Chavez 141 .Remedial Law Review Notes under Atty Ferdinand Tan CONSOLIDATED NOTES in CIVIL PROCEDURE Notes by: Paul Lemuel E.

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