CIVPRO LECTURES

By Dean F. Tan
2nd Sem AY 2012-2013
1st Sem AY 2014-2015
NOTE: Let it be known that this is just a guide; not complete nor perfect. Feel free to correct or supplement whatever is needed. But I am
hoping that this will help you in studying the subject. -IBYANG-

What is Remedial Law?

- Nature (Procedural NOT A LAW but has the force and effect of a law)
- Distinction between procedural and substantive law (definition, purpose, who promulgates, application,
waivability, effect of rights)
- 4 divisions of remedial law (civil, criminal, special proceedings, evidence)

Civil Procedure, define

- Distinguish from crimpro and spec-pro (definition, governing law, parties, commencement, basis of
institution)
Q: Is a petition for declaration of presumptive death a spec-pro? How about declaration of nullity of marriage?
A: Yes, establishing a status.
Parts of Civpro (ordinary, provisional remedies, and special civil actions)
Application of Civpro in crimpro and specpro - suppletory and by analogy; Sec. 4, Rule 1
Sources of civpro (Constitution, BP 129 as amended by RA. 7169, RA 7160 LGC Sec. 399-422, Admin circulars,
jurisprudence, NCC, at marami pang iba)
Constitutional Provisions (at marami pang iba)
1. Art. 3, Sec. 1 due process
2. Art. 8, Sec. 1 Constitutional court (SC) (Sandiganbayan, CTA, Sharia District/Lower Court, CA, RTC, MTC
Statutory courts)
Q: Is a military court a judicial court? No, jurisprudence, under the executive branch.
3. Art. 8, Sec. 1, Par 2 judicial power
4. Art.3, Sec. 9 Expropriation (Rule 67)
5. Art. 8, Sec. 5 Powers of SC (Rules 56, 65, 102, and 45-Question of law/constitutionality, 65-jurisdiction)
6. Art. 8, Sec. 5 Rule making power of SC (not absolute; with limitations)
7. Art. 8, Sec. 18 requirements of valid judgment (Rule 36)
8. Art. 9-A, Sec. 7 COMELEC and COA (Rule 64)
Jurisdiction
- Define (Rule 30-try, 36-decide, 39-execute)
- Distinguished from venue (definition, relations, waivability, dismissal, effect of dismissal, governing law)
- Kinds (original, exclusive, exclusive original, appellate, delegated, general, special, concurrent,
territorial [within territory], primary jurisdiction [exhaustion of admin. rem], ancillary)
- How acquired:
a) Over plaintiff filing of complaint and payment of docket and other lawful fees
b) Over defendant voluntary appearance (xpn: special appearance) or summons
c) Over the subject matter allegations in the complaint/initiatory pleading
d) Over issue allegations in the pleadings
e) Over res actual or constructive seizure
f) Over claim payment of docket fee
- Jurisdiction of different courts (marami po ito)
Ibyang |

a)
b)
c)
d)
e)
f)

SC, CA
Sandiganbayan Civil: forfeiture of illegally acquired properties
CTA
Sharia District/Lower Court [PROPERTY RELATIONS] parties involved are Muslims
RTC land registration cases: uncontested
MTC
- Ordinary procedure (claim less than 300/400, exclusion/inclusion of voters)
- Summary [NO TRIAL] (Rule 70: Unlawful detainer and Forcible entry, claims less than 100/200
[except probate], small claims)

Commencement of action (Rule 1, Sec. 5)

- Filing of initiatory pleading
- Plus payment of docket fees
Barangay Conciliation [Local Government Code]
Small claims: Lack of - raise an affirmative defense or motu propio dismissal
Exceptions: Prov. Remedies (not limited to Rule 57-61), Estate (a juridical entity)
Effect of pendency (tolls the prescriptive period for not more than 60 days; Sec. 412)
Effect of failure to raise waived, xpns: summary procedure/small claims
REMEDIES:
o Plaintiff amendment
o Dismissal not yet final revive
o Dismissal is final refile
Appearance (personal); lawyer who appears (subject to DA, filed with IBP)
Repudiation: filing of sworn statement within 10 days (due to vitiated consent, fraud, force)
Non-execution of settlement: after 6 months, file to a regular court based on jurisdiction
Preparation of a complaint
Distinctions between pleadings and motion (definition, purpose, kinds, form, when filed)
Initiatory pleadings (original complaint, Permissive Counter Claim [Permissive Counter
rd th
Counter Claim], Cross-Claim, 3 -4 party complaint, complaint-in-intervention, petitions,
special civil actions [except Direct Contempt, special proceedings])
Responsive pleadings (Answer and Reply to all initiatory pleadings, Response in small claims)
Initiatory pleadings require verification, cert of non-forum shopping, payment of docket fees
o Verification

Initiatory pleadings

Answer (Actionable document, usury, with PCC, with CR-C, response in
small claims, forcible entry, unlawful detainer, summary procedure)
rd th
o Default (Rules 29, Sec. 5; 62. Sec. 5, lack of answer in OC, PCC, CRC, 3 4 party
complaint, intervention)
o Cert of non-forum shopping (initiatory pleading, answer with PCC or CRC) (petitions
in appellate court)

No splitting in crimpro

Motu propio dismissal (Acts of forum shopping: litis pendentia/res
judicata; Lack of CNFS in summary procedure)
Dismissal with prejudice (ACTS of forum shopping, willful and
deliberate)
Dismissal without prejudice (LACK of CNFS)
Q:

Should dismissal under Rule 17, Secs. 1 and 2 be included in CNFS No.
CNFS is required for substantial amendment
o Jurisdiction
Ibyang |

Venue

Dismissal (Motu propio or by motion)

Without prejudice: Amend or refile
With prejudice: Appeal
Distinguish venue in crim (Rule 110, Sec. 15) from civil (Rule 4)
Distinguish from jurisdiction

Venue
Real (location)
Personal (residence)
Mixed (location or residence)

vs.

Jurisdiction (Summons)
Rem (Due process)
Personam (acquire jurisdiction over the defendant)
Quasi-in-rem (ex. Rules 57, 68, 69) (Due process)

o Venue
Exclusivity of venue (in writing, before filing, agreed by the parties, use of word/s of exclusivity)
Improper venue: MTD (Rule 16, Sec. 1, c); XPN: Summary Procedure and Small claims
If not objected to: deemed waived
If MTD is granted: dismissal without prejudice; remedy refile
If MTD is dismissed: file an answer within the balance remaining, raise the issue as an affirmative defense,
proceed with trial, appeal an adverse decision and assign it as an error; if TGAD, Rule 65
FAVORITE BAR QUESTION: Venue if outside the Phils. (where property is located or where plaintiff resides)
-

Parties

Joinder of parties

Indispensable party: (Rule 3, Sec. 2 in relation to Rule 16, Sec. 1, g)

Class suit (common and general interest)
Distinguished from derivative suit (filed by minority stockholder;
ground for dissolution of corp) and citizen suit (environmental
laws)
Q: Is there a class suit in labor cases? Yes, ROC is suppletory

Death of a party: Rule 3, Sec. 16 and 20 in relation to Rule 86 and 87
(abandon mortgage, file against estate, foreclose property and apply for a
claim against estate)
o Cause of Action

Joinder of COA (Rule 2, Sec. 5/Rule 3, Sec. 6)

Splitting of COA (Act of forum shopping that may lead to litis pendentia
and eventually, to res judicata)
Cause for dismissal with prejudice: remedy, appeal

May be amended to confer jurisdiction (amendment as a matter of right)

Equity applies if there is no law applicable
o

Additional Notes:
Cert. of Non-Forum Shopping (a condition precedent; may be dismissed without prejudice; remedy: refile)(Rule 7,
Sec.5)
Acts of non-forum shopping (litis pendentia, res judicata, splitting of COA)
o AM/CP/FD DC/SS/SP-CA-R/FJ (Act of malpractice committed by a party by filing different suits in
different courts either successively or simultaneously, involving same parties, cause of action,
relief for the purpose of securing favorable judgment)
o Dismissal with prejudice: appeal
GR: Signed by the parties; EXCEPTION: Lawyer has authority and personal knowledge
Ibyang |

Q:
-

Substantial compliance rule (Rule 1, Sec.6)

Is jurat part of a pleading (GR: No, unless the affidavit is verified or with CNFS)
Should contain IBP, PTR, MCLE, Roll number (lack of: pro forma, no legal effect, ground for dismissal)

PROVISIONAL REMEDIES
Should be considered in preparation of pleadings.
Nature: Temporary, effective during the pendency of the action; provisional.
Purpose: protect the property, status quo (last actual, peaceable, uncontested status of the parties), to
secure payment of obligation.
Available in all courts (ancillary jurisdiction) except support pendent lite
Q:
Is the list (Rule 57-61) exclusive? No.
(Temporary Environmental Protection Order, delivery of legitime, support, visitational rights, witness protection
order, production/inspection orders, temporary protection/restraining orders, hold departure order)
1.

Q:

Attachment (Rule 57, Sec. 1 define)

Placing the property to courts jurisdiction
Quasi-in-rem
COMMENCEMENT: filing of verified complaint or verified motion (before judgment)
Suppletory to Rule 127 when there is civil liability attached to the criminal case
REQUIREMENTS: verified motion/complaint, there is no security for the the judgment,
all grounds available, bond
STAGES: application (anytime before judgment, issuance (may be ex parte), annotation
of writ [levy: real property] or seizure/garnishment [personal property], served with
summons for due process
REMEDIES: (Rule 57, Sec. 12) Discharge Attachment and Bond or Motion to quash
without the bond [Sec. 13, Rule 57] (If bond is not required, Rule 39, Sec. 13); If denied,
MR/certiorari
If one party dies, rule 86, claims against the estate.
Is there attachment in MTC? Yes.

REMEDIES:
a.

b.

c.
d.

2.

MTC
MTQ denied: MR in 15 days [Rule 65, Sec. 4] Denied: Certiorari to RTC within 60 days
(Rule 65, Sec. 4 in relation to Rule 37) MR within 15 days (Rule 37) Appeal to CA
(Rule 41) MR (Rule 37 in relation to Rule 52) Appeal to SC within 15 days (Rule 45)
MR (Rule 52)
*Rule 65 plus TRO or injunction (Sec. 7)
*MR is required in certiorari
RTC
MTQ denied MR within 15 days (Rule37) Certiorari to CA within 60 days (Rule 37 in
relation to Rule 65, Sec. 4) MR (Rule 52) Appeal to SC (Rule 45) MR (Rule 52)
CA
MTQ denied MR (Rule 37) Certiorari to SC (Rule 65) MR (Rule 52)
SC
MTQ denied MR (Rule 52)
REQUIREMENTS: verified application, bond, grounds, affidavit

Injunction (Rule 58)

KINDS: Preliminary-prohibitory, preliminary-mandatory and final-perpetual
NATURE: Discretionary, interlocutory; final (remedy is appeal)
COMMENCEMENT: filing of verified complaint or verified motion (before judgment)
Ibyang |

3.

4.

5.

If as a main action, file with RTC because it is incapable of pecuniary estimation

CRIMINAL PROCEDURE: Not applicable UNLESS 10 conditions (Rule 127 and 112; Broca
vs. Enrile) (Ex: preliminary investigations, pending strikes and lock-outs, acts already
gone, government infrastructure, franchise or privileges)
Requires notice and hearing
TRO may be ex parte (effective for 20 days if issued by RTC/MTC; 60 days if issued by CA;
until further notice if issued by SC)
If action involves irreparable damage: TRO will be effective within 20 days, nonextendible
If needed for extreme urgency: 72 hours, extendible by 17 days (AM # 07-7-12)
GROUNDS: Sec. 3
Distinguish TRO from Status Quo Order (purpose, dates)
TRO vs. Injunction (dates, requirements ex parte/notice and hearing)
TRO vs. Temporary Environmental Protection Order (applicability)
TRO in summary procedure: Sec. 15 and 20
TRO is not applicable to environmental cases
Preliminary-mandatory injunction vs. mandamus (Provisional remedy vs. special civil
action; discretionary vs. ministerial; directed to persons, court or tribunal vs. directed to
judicial and quasi-judicial)
Rule 56 vs. Rule 65, Sec. 7
Preliminary prohibitory injunction vs. preliminary mandatory injunction vs. final (order,
remedy, purpose, when to file)
REMEDY: Motion to Quash with Bond or Rule 65

Receivership (Rule 59)

Purpose and grounds
COMMENCEMENT: verified complaint or verified motion (before judgment)
REQUIREMENTS: verified application, affidavit, bond, grounds
Interlocutory order
If ground no longer exists, file a motion to terminate receivership
Replevin (Rule 60)
Can either be ordinary action or provisional remedy
Jurisdiction if ordinary action: RTC/MTC
COMMENCEMENT: verified complaint or verified motion with application (before
service of answer)
REQUIRES BOND: twice the value of the property
For DISCHARGE: double the bond
Applicable to crimpro (Rule 126): if not used in the commission of the crime nor
mentioned in search warrant
Distinguish from attachment (subject matter, when to avail, type of action, bond)
Support pendente lite (Rule 61)
Only in RTC because the main action is support(incapable of pecuniary estimation)
Applicable to criminal procedure
Requires notice and hearing by way of verified complaint or motion
Immediately executory
o EFFECTS: Indirect contempt/writ of execution (Sec. 5)
Restitution, reparation, and damages are available (Sec. 7)

SPECIAL CIVIL ACTIONS

-

Extraordinary remedies (Rule 62-71)

Ordinary and special civil actions cannot be joined (Rule 2, Sec. 5)
Ibyang |

May be used as suppletory or ordinary action (Rule 7, Sec. 1, venue)

REMEDY: MTD/demurrer
List is not exclusive (continuing mandamus, writ of kalikasan)
Initiatory pleading except Direct Contempt

1.

Interpleader (Rule 62)

Verified complaint
Filed either to MTC/RTC
Claimants must file an answer within 15 days
Default is applicable
Distinguish from intervention

2.

Declaratory relief and other similar remedies (Rule 63)

Quieting of title, consolidate ownership, reformation of instrument, breach of contract
(list is exclusive)
For Declaratory Relief: Violation shall convert the action into ordinary civil action
JURISDICTION: RTC except quieting of title (20/50, MTC/RTC)
PURPOSE: for construction or validity

3.

Rule 65
-

Matter to consider: GAD, no plain, adequate, speedy relief nor appeal and Rule 41, Sec.
1
GR: Hierarchy of courts; EXCEPTION: special compelling reasons (SC)
Material dates rule
MR is required except in 10 scenarios
Motion to extend time is prohibited; fixed and non-extendible
Requires CNFS
Correlate to Rule 46 (affidavit of service)

Ibyang |

64

65

45

a.
COA/COMELEC
[in relation to
R112] - > SC

a.
Ombudsman
(criminal), SB,
CTA, CA > SC

a. SB, CA,
CTA, RTC
> SC

Subject to
Doctrine of
Heirarchy of
courts

RTC:
Purely
questions
of law.

43 in relation
to R43
a. QJB and
Ombudsman
(admin) >
CA
List is not
exclusive.
XPN: NLRC
(R65 to CA
within 60
days)

b. RTC > CA

30

c. MTC >
RTC
d. QJB - >CA
60

Certiorari

Certiorari
Requires MR,
subject to 10
xpns.

42 RTC
appellate
a.
MTC/RTC
> CA

41 RTC
original
a. RTC/MTC
(land
registration,
contested)
> CA

40
MTC > RTC

COURTS

DAYS (from receipt

of order)
TYPE OF
PLEADING/PETITION

Also see Rule

40, Sec. 8

b.
MTC/RTC
-> SB

15

15

15

15/30

15/30

Petition
for
Review on
Certiorari

Petition for
Review

Petition
for
Review

Notice of
Appeal/
Record on
Appeal

Notice of
Appeal/Record
on Appeal

Jurisdiction

Jurisdiction

Law,
except 13

Law/Facts

Law/Facts

Law/Facts

Law/Facts

ISSUES/QUESTION

Consti

Consti

Consti

Statute

Statute

Statute

Statute

BASIS

Rules 41, 42, 43 and 45 Forms of appeal

Rule 45
-

Original parties
Does not require MR
Mode of appeal
Period is extendible

Rule 65
Court/tribunal must be impleaded
Requires MR, 10 xpns
Mode of review
Not extendible
Rule 37 not extendible, except in special and compelling reasons
Rule 52/53, extendible only in SC.

Ibyang |

(Continuation of Rule 65)

Distinguish
o Certiorari to annul/modify; discretionary
o Mandamus to require to act; discretion/ministerial
o Prohibition to prohibit; ministerial
As an extraordinary remedy, it should be filed 60 days from notice of the judgment or
order denying MR
Material dates rule applies
Hierarchy of courts is applicable
Grounds: (a.) GAD, (b.) no plain, adequate, speedy remedy, ex. small claims, (c.) no
appeal, R41, Sec. 1
Requires TRO to toll execution/stop proceedings below.
Applicability: (Remedy)
o Interlocutory order because not appealable; order which does not dispose
the case in its entirety and leaves something else to be done
o Decision from Rule 65 is a final order, thus, appealable
o Judgment by default If there is evidence on record, appeal; if none [usual
case], MR/MNT [37] Certiorari [65] MR [52] Relief [38]/Annulment [47]
o NLRC MR R65 (CA) MR [52] R45 (SC)
o Sec. of Labor R65 (CA)
o Denial of registration of union R65 (CA)
o Resolution of Ombudsman R65
o Bailable criminal offenses R65 (CA)
o Order of default Motion to lift R65
o Order of execution R65

Grave abuse of discretion (GAD) arbitrary, whimsical; Excess
beyond; lack no basis
4.

Quo warranto (Rule 66)

Define; ground for dissolution of a corp.
Concurrent: RTC, CA, SC, Sandiganbayan
Jurisdiction if initiated by Soloen: Sec. 7 (RTC, Manila)
Appealable

5.

Expropriation (Rule 67)

Subject matter: right of the state to take private property with just compensation
Procedures/Judgments:
o Right to expropriate
o Just compensation
o Execution
(all are appealable through record on appeal)
LGU: There should be an ordinance; for public use and with just compensation
Counterclaim and MTD are not applicable.
Distinguish from Rule 91 (pro v rem vs. spec-pro; purpose; jurisdiction RTC exclusive
vs. MTC/RTC depending on the value)

6.

Foreclosure (Rule 68) correlate with receivership and consolidation of ownership

Real action and quasi-in-rem (20/50 assessed value)
REMEDIES OF MORTGAGE, in case of death of mortgagor: (Rule 68 in relation to Rule 86)
o Abandon the mortgage and file a claim against the estate (Rule 86)
o Foreclose the property
o Foreclose, and if there is a deficiency, file a claim against the estate
Action that survives and may be claimed against the estate
Ibyang |

7.

Partition (Rule 69)

-

Not a prejudicial question in BP 22 cases.

Equity of redemption: Judicial foreclosure (90 120 days or before confirmation)
EXCEPT Banks (within 1 year) and family home (R39, Sec. 13)
Right of redemption: Extra-judicial foreclosure (1 year from sale)

Co-ownership
Quasi-in-rem/Personal, real, mixed action
Non-probate proceeding: compulsory heirs may file
Rule 74, Sec. 1, if a compulsory heir later on disagrees.
STAGES:
o Determination of co-ownership
o Partition
(Appealable through record on appeal)

8.

Forcible entry and Unlawful detainer (Rule 70)

Summary in nature (MR is prohibited)
Distinguish unlawful detainer vs. forcible entry
Tolerance should be based on facts
Appeal:
o Notice of appeal within 15 days + appeal docket fees + bond
o Record on appeal deposit of periodic rentals
If judgment is reversed: restitution and damages
Judgment is immediately executory unless appeal is perfected
REMEDIES: MTC (adverse decision) Appeal-RTC [R40] MR [37] (converted into
ordinary civ-pro) 42 52 45 52
To RTC: Rule 65 because order is interlocutory PLUS TRO or injunction
STUDY prohibited motions and pleadings (Sec. 20)

9.

Contempt (Rule 71)

-

KINDS:
o Direct Sec. 1
o Indirect Sec. 3
o Criminal penal in nature; attacking the integrity of the court
o Civil non-compliance with lawful order
o Out of court indirect
o In court direct
Remedy for direct contempt: Sec. 2
Contempt is inherent power of courts
Contempt power of QJB: Sec. 12
Where to file: governing law of the QJB, if none, RTC
Contempt power of NLRC/LA: Sec. 218 of Labor Code; Federico vs. NLRC (2012)

10. Continuing Mandamus

Environmental cases; order directed to government office or official
Continues until judgment is fully satisfied.
11. Writ of Kalikasan
-

2 or more damages of the environment

REMEDY: R45

Ibyang |

FILING OF PLEADINGS
-

Before the clerk of court

o Office of clerk of court where to file
o Branch clerk of court issues summons
REMEDIES/PROCEDURES:
o LTD

Affidavit of adverse claim filed with the Register of Deeds MR (within
5 days) Appeal (LRA within 10 days, Sec. 117) CA (R43) MR (R52)
SC (R45) MR (R52)

Notice of lis pendens filed with the Register of Deeds MR within 10
days Appeal to LRA within 10 days MR [R37] within 10 days CA
(R43) MR (R52) SC (R45) MR (R37)
Distinguish lis pendens vs. litis pendentia (R13, Sec. 14 vs. R16, Sec. 1, e) (notice vs.
motion; where to file, purpose, remedy)

SUMMONS
-

Define
Distinguished from subpoena (definition, purpose, who issues, kinds)
Ground for MTD: Lack of jurisdiction over the person of the defendant
Actions of the court for such ground:
o Grant dismiss without prejudice (Refile)
o Deny answer
o Issue an alias summon
MODES OF SERVICE
o Personal (handing/tendering plus affidavit of service)
o Substitute (residence or office)
o Extraterritorial
Foreign juridical entity without agent: through DFA (personal, publication plus mail,
electronic means)
If there is MERGER of corporations: To the original corp, UNLESS prevailing corp
assumes liability of the original.
Effect of amendment
o Appeared (answer already filed) no need to reissue summons EXCEPT if
amendment is substantial
o Not yet appeared reissue summons
Motion to admit answer is equivalent to motion to extend time
Motion to extend time: voluntary submission UNLESS to question the courts jurisdiction
REMEDIES AFTER SUMMONS BEFORE FILING OF RESPONSIVE PLEADING (including Motion for summary judgment,
provisional remedies, intervention)
a. Motion to Dismiss (Rule 16)
Omnibus and litigated motion
Subject matter: all initiatory pleadings
GR: Prohibited in Summary Procedure
EXCEPTION: Lack of jurisdiction over subject matter and brgy. conciliation (condition
precedent)
EXCEPTION TO EXCEPTION: Small claim (MTD is absolutely prohibited)
Prohibited in envi cases, absolute.
Dismissal with prejudice: Sec. 5 plus litis pendentia (REMEDY: Appeal)
Dismissal without prejudice: All the rest, refile (GR) or amend (also see Rule 41, Sec. 1)
EXCEPT: Lack of jurisdiction over subject matter and failure to state cause of action
(ADDITIONAL REMEDY: Amend to confer jurisdiction, as a matter of right)
DISTINGUISH Rule 16 from Rule 33 (nature, when filed, grounds, if granted, if denied)
DISTINGUISH Rule 16 from Rule 50 (court, what is to be dismissed)
Ibyang |

10

Q: Can you amend a pleading if there is MTD? Yes, MTD is not a responsive pleading.
Q: Can you amend after judgment? Yes, provided that its not final and executory.
b.

Motion for Bill of Particulars (Rule 12)

Distinguish from Bill of Particulars, from order to answer MBoP (motion, order, bill)
Distinguish Rule 12 vs. Rule 116, Sec. 9 (purpose, when to file, who may move,
addressed to which pleading)
Not allowed in summary procedure/small claims.
Q: Is BoP part of the pleading? Yes, together with initiatory pleadings.
c.

Motion to extend time (Rule 11, Sec. 11)

Tantamount to submission to courts jurisdiction (same with motion to admit)
Filed within the period to be extended
Not applicable to Rule 65, with 10 xpns.

d.

Amendment (Rule 10)

Supersedes the original complaint
KINDS: Matter of right, by leave of court, to confer jurisdiction [before a responsive
pleading], to conform to evidence, formal, substantial
REMEDY: MR R65 because order is interlocutory
*Issue summons if no jurisdiction yet
- Amendment in case of non-joinder of action
- Distinguish from supplemental (leave of court, when, effects)

e.

Rule 17 (DISMISSAL BY PLAINTIFF)

f.
g.

Summary Judgment
Intervention
- ancillary
- REMEDY if denied: Appeal or file a separate action
- Not applicable to Summary Procedure, small claims, creditors of estate
- Applicable to envi cases

h. Modes of Discovery
- Rule 23-28 is not an exclusive list
- Subject to the courts discretion.
- Define; purposes (7 + obtain full information)
- Kinds: Rule 23-28
- Habaes Data/Amparo: Rule 27 applies
- Rule23 in relation to rule 134
Q: Are the modes applicable to criminal cases? Yes, only in suppletory character (Rule 27 does not apply because
of Rule 116, Sec. 10 AND Rule 23 does not apply because of Rule 119, Sec. 12 and 13)
i.
-

Rule 23
Deposition is evidence (object, documentary, testimonial), in case of admission
Taking of deposition (oral/written, videotape in case of child witness)
o How (filing, examination of witness [Rule 132, Sec. 3-18], transcribed and
presented to deponent, signed, sealed, and filed to court)
o Who may take deposition
Use of deposition: Sec. 4
(Impeachment: Rule 132, Secs. 11 and 13)
Effect of death of deponent: remains as an evidence (Rule 130, Sec. 47; no violation in
using hearsay evidence)
Ibyang |

11

Objections: officer should not UNLESS granted by the court in the order to take
deposition
LIMITATIONS: privileged communications, tends to harass or annoy
ii. Rule 24
Petition filed to any court
iii. Rule 25
Distinguish from Rule 23
Answer should be verified: If not, summary judgment (R35 or Rule 29, Sec. 5)
REMEDY for actionable document: File answer with specific denial under oath
LIMITATIONS: privileged communications, tends to harass or annoy
iv. Rule 26
- Answer should be verified: If not, R34 judgment on the pleadings
v. Rule 27
- Distinguished from subpoena duces tecum (how, purpose, when available, nature)
- Matters to consider: production and surveying provided its not privileged
- Correlate with Rule 130, Sec. 24
- Applies to AMparo, Data, envi
- Rule 130, Sec. 3, (b) distinguished from R27
R27
Mode of discovery
Motion
No prior knowledge of the questions/subject matter

R130
Exception to best evidence rule
Notice
Requesting party has prior knowledge

vi. Rule 28
- Applicable to parties only
- Distinguish Rule 28 and Rule 101 (nature, purpose, form, who may file)
- Rule 29: Effects

DEFAULT
-

Distinguish Motion to Declare Defendant in Default (MTDDD) vs. Order of Default (OD)
vs. Judgment by Default (JD)
Process of MTDDD (REQUIRES: acquisition of jurisdiction, failure to respond, proof of
failure, motion, notice, hearing)
Q: When can there be an Order of Default? Non-response to initiatory pleadings and Rule 25
Effects of OD? Lose standing, can still be a witness, admissions are extrajudicial
admission, entitle to receive notice, judgment order, substantial amendments
Q: Effect if there is substantial amendment? OD is lifted.
REMEDY FOR ORDER OF DEFAULT (EX MTC)
o Motion to lift OD, verified, based on FAME, affidavit of merit
o Motion to admit answer + answer
o If denied, MR (R65, Sec. 4 plus TRO or injunction) [because interlocutory
order] RTC MR (R37) CA (R41) [because judgment of RTC is final] MR (R52)
SC (R45) MR (52)
Judgment by default: judgment rendered by virtue of order by default after
presentation of evidence ex parte
REMEDIES FOR JUDGMENT BY DEFAULT: (MTC)
o Before it becomes final and executory MR/MNT/Motion to set aside judgment
by default (FAME, verified, affidavit of merit) RTC (R65 plus TRO or injunction)
MR (R37) CA (R41) MR (R52) SC (R45) MR (R52)
o Final and Executory
Ibyang |

12



Relief from judgment (R38) MR MTC (R65 plus TRO) MR (R37)

CA (R41) MR (R52) SC (R45) MR (R52)
Annulment of judgment (R47) (only in RTC/CA) MR (R37) R65
Certiorari (Ex. RTC) (R65) MR (R37) CA (R41) MR (R52) SC (R45)
MR (R52)

ANSWER
-

GR: Need not be verified

Exceptions: Answer with PCC, Answer with CrC, Answer to Interrogatories, Answer for
actionable document, usury, small claims and summary procedure
KINDS: Affirmative, Negative, SLAPP (of defenses)
Matters to consider: Verification and defenses
DAYS: 10 (summary procedure), 15 (ordinary), 30 (foreign private entity), 60
(extraterritorial, foreign entity)
Judgment on the pleadings is possible
Pleadings may be amended with leave of court
A party may file a reply

REMEDIES AFTER FILING OF ANSWER

a. Rule 34
b. Supplemental Answer
c. Rule 17, Sec 2
d. Rule 10, Sec. 2
e. Deposition
f. Provisional remedies
PRE-TRIAL (Rule 18)
-

Lack of is not a ground to dismiss because clerk of court is directed to set the pre-trial if
plaintiff fails to move (AM 03-1-09)
Mandatory but can be waived if lack of it is not raised during trial.
Distinguished from R118 (who inititates, when, main purpose, pretrial brief, effect of
non-appearance, signature in PTA, effects)
Rule of appearance on parties: personal
Non-appearance of plaintiff: dismissal with prejudice unless otherwise ordered
(Principle of non-suited)
Preliminary Conference in Summary Procedure: does not require ex parte motion, does
not require brief unless ordered by the court.
Preliminary Conference in CA (Rule 48)
Matters to consider: 1-day, 1-witness rule, Most Important Witness Rule, JDR, Judicial
Affidavit Rule
EFFECTS/REMEDIES FOR NON-APPEARANCE OF DEFENDANT
o Order allowing = MR R65 MR Appeal
o Order allowing plus presentation of evidence ex parte = MR/Motion to set
aside R65 + TRO R52 Appeal
o Order allowing plus presentation of evidence plus judgment which is not final
and executory = MR/MNT R65 MR Appeal
o Judgment becomes final and executory
i. R38 MR R65 MR Appeal
ii. R47 MR R65 MR Appeal
iii. R65 MR Appeal
iv. Collateral Attack (separate action attacking the judgment)

TRIAL (Read Rule 132) (Rule 30)

Ibyang |

13

KINDS: In absentia, inverted, ex parte, one-sided, impartial, de novo, public trial, trial by
commissioner
Order of trial (Sec 5)
Inverted trial happens if defendant files an answer with affirmative defense
NO TRIAL: summary procedure, small claims, r34, r35, compromise, MTD (grounds
raised is for dismissal with prejudice), r17, s3 except non-compliance with order of the
court.
Evidence not marked are deemed waived unless allowed by the court
Rule 132, Section 4-8
Offer of testimony: Rule 132, Section 35
Offer of evidence: Rule 132, Section 34
Offer of examination: Rule 132, Section 5-8
Judicial Affidavit Rule: written testimony of witness (lack of, witness will not be allowed
to testify)
Types of objection to testimony/evidence (Leading: suggesting answer, Misleading:
contrary to testimony, Argumentative, Hypothetical, No basis, Calling on conclusion,
Narrative, Immaterial, Irrelevant)
Actions of court: Rule 132, Section 38 and Section 40 (Section 40: remedy for excluded
testimony; to be able to attach to records for appeal)
Resting the case: after all evidence were presented by plaintiff; done by plaintiff

DEMURRER TO EVIDENCE (Rule 33)

Nature: Form of MTD, litigated
Distinguish Rule 33 from Rule 119, Section 23
Distinguish from Rule 16
Effects if granted (Appeal)/denied
PRESENTATION BY DEFENDANT
JUDGMENT (not yet final)
MR/MNT (Rule 37): Before appeal
Final: Reopening of case (based on equity); for additional evidence (crim: R119, Section
24/civil: equity)
Neypes ruling applies: Fresh period rule
APPEAL
Distinguish R37 vs R52 vs R53
REMEDIES/PROCEDURE:
o Before finality of trial

MTC MR (R37) RTC (R40) MR (R37) CA (R42) MR (R52/53) SC
(R45) MR (R52/53)

RTC MR (R37) CA (R41) MR (R52/53) SC (R45) MR (R52/53)

RTC MR (R37) SC (R45, question of law only)

SB SC (R45)
Residual power of the lower court pending appeal
Fresh period rule applies
How perfected: Notice of appeal or Record on appeal
o After finality

Rule 38 filed with the court of origin within 60 days from knowledge
and within 6 months from entry of judgment

Annulment of judgment (Rule 47): Not applicable to labor cases

Rule 65

Collateral Attack: separate action attacking the judgment
Ibyang |

14

EXECUTION (Rule 39)

-

Available in crimpro, in so far as the civil aspect is concerned.

Total of 10 years to execute
Non-satisfaction of whole judgment: Examination of the defendant
Order of execution: (properties) personal real debts/bonds
IMMEDIATELY EXECUTORY: injunction, support, accounting, judgment in Rule 70 in favor
of plaintiff, small claims.
REMEDIES against execution:
a. Motion to Quash the writ of execution
o If as a matter of right Mandamus
o If as a matter of discretion Certiorari
o GROUNDS: wrong party, exempt property, Dispositive portion, compromise
agreement
b. Terceria (r39, s16 and r57, s14)
rd
o 3 -party claim
o Affidavit filed with the sheriff
c. Writ of Possession in case of denial
o Ex parte (ministerial)
d. Examination under oath of debtor
e. Garnishment
f. Redemption
g. Injunction
h. R70, S19

NOTE: Let it be known that this is just a guide; not complete nor perfect. Feel free to correct or supplement whatever is needed. But I am
hoping that this will help you in studying the subject. -IBYANG-

Ibyang |

15