REMEDIAL LAW REVIEWER Part VI of IX SPECIAL CIVIL ACTIONS

I.Civil Procedure A.Special Civil Actio ! "Rule #$%&'( '.I terpleader a.Defi itio
A person who has property in his possession or an obligation to render, wholly or partially without claiming any right therein, or an interest in which in whole or in part is not disputed by the claimants, comes to court and asks that the persons who consider themselves entitled to demand compliance with the obligation be required to litigate among themselves in order to determine finally who is entitled to the same.

).Rule #$ General Procedure in Interpleader

.1 complaint for interpleader is filed .2 court issues order requiring the claimants to interplead .3 summons served on the claimants .4 claimants may file interpleader action, t! on the unique ground of impropriety of t! tolls period to file answer

." court resolves t!# claimant has remaining period to file answer or at least " days from notice of denial .$ claimants file answer within 1" days from receipt of summons .% opposing claimants may file a reply .& pre'trial .( court )determine*s+ their respective rights and ad,udicate their several claimsSectio '. When interpleader proper. * W+e ever co flicti , clai-! upo t+e !a-e !u).ect -atter are or -a/ )e -ade a,ai !t a per!o 0+o clai-! o i tere!t 0+atever i t+e !u).ect -atter1 or a i tere!t 0+ic+ i 0+ole or i part i! ot di!puted )/ t+e clai-a t!1 +e -a/ )ri , a actio a,ai !t t+e co flicti , clai-a t! to co-pel t+e- to i terplead a d liti,ate t+eir !everal clai-! a-o , t+e-!elve!. "'a1 R#2( .ote that the plaintiff need not wait for each defendant to make a formal demand. /t is enough that a claim may be made by such defendants. Sec. $. Order. * 3po t+e fili , of t+e co-plai t1 t+e court !+all i!!ue a order re4uiri , t+e co flicti , clai-a t! to i terplead 0it+ o e a ot+er. If t+e i tere!t! of .u!tice !o re4uire1 t+e court -a/ direct i !uc+ order t+at t+e !u).ect -atter )e paid or delivered to t+e court. "$a1 R#2( Sec. 2. Summons. * Su--o ! !+all )e !erved upo t+e co flicti , clai-a t!1 to,et+er 0it+ a cop/ of t+e co-plai t a d order. "21 R#2(

Special Civil Actions 2 .ote that the plaintiff does not furnish the defendant copies of his complaint. 0e need only file his complaint with the court. /t is the responsibility of the court to issue the summons and to serve a copy of the complaint. Sec. 5. Motion to dismiss. * Wit+i t+e ti-e for fili , a a !0er1 eac+ clai-a t -a/ file a -otio to di!-i!! o t+e ,rou d of i-propriet/ of t+e i terpleader actio or o ot+er appropriate ,rou d! !pecified i Rule '# *motion to dismiss+. T+e period to file t+e a !0er !+all )e tolled a d if t+e -otio i! de ied1 t+e -ova t -a/ file +i! a !0er 0it+i t+e re-ai i , period1 )ut 0+ic+ !+all ot )e le!! t+a five "6( da/! i a / eve t1 rec7o ed fro- otice of de ial. " ( 1he defendants must file their answer within the standard 1" days from receipt of the summons. Sec. 6. Answer and other pleadings. * Eac+ clai-a t !+all file +i! a !0er !etti , fort+ +i! clai- 0it+i fiftee "'6( da/! fro- !ervice of t+e !u--o ! upo +i-1 !ervi , a cop/ t+ereof upo eac+ of t+e ot+er co flicti , clai-a t! 0+o -a/ file t+eir repl/ t+ereto a! provided )/ t+e!e Rule!. If a / clai-a t fail! to plead 0it+i t+e ti-e +erei fi8ed1 t+e court -a/1 o -otio 1 declare +i- i default a d t+ereafter re der .ud,-e t )arri , +i- fro- a / clai- i re!pect to t+e !u).ect -atter. T+e partie! i a i terpleader actio -a/ file cou terclai-!1 cro!!%clai-!1 t+ird%part/ co-plai t! a d re!po !ive pleadi ,! t+ereto1 a! provided )/ t+e!e Rule!. "5a1 R#2( Sec. #. clai-a t! accorda ce re!pective Determination. * After t+e pleadi ,! of t+e co flicti , +ave )ee filed1 a d pre%trial +a! )ee co ducted i 0it+ t+e Rule!1 t+e court !+all proceed to deter-i e t+eir ri,+t! a d ad.udicate t+eir !everal clai-!. "6a1 R#2(

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Sec. &. Docket and other lawful fees, costs and litigation expenses as liens. * T+e doc7et a d ot+er la0ful fee! paid )/ t+e part/ 0+o filed a co-plai t u der t+i! Rule1 a! 0ell a! t+e co!t! a d liti,atio e8pe !e!1 !+all co !titute a lie or c+ar,e upo t+e !u).ect -atter of t+e actio 1 u le!! t+e court !+all order ot+er0i!e. "#a1 R#2(

c.Ca!e! Mesina v. IAC, 145 SCRA 497 (1986)

2acts3 4o5s lost check was presented for payment by esina. 6heck was dishonored. esina now claims from the drawer bank. 7ank files action for interpleader naming 4o and esina as respondents. 6ourt orders respondents to file their answers. 0eld3 /nterpleader was a proper remedy. An order to file an answer is proper and equivalent to an order to interplead. 2ailure to file an answer results in the party being declared in default.

$.Declarator/ Relief a d Si-ilar Re-edie! a.Rule #2

Sectio '. Who may file petition. * A / per!o i tere!ted u der a deed1 0ill1 co tract or ot+er 0ritte i !tru-e t1 0+o!e ri,+t! are affected )/ a !tatute1 e8ecutive order or re,ulatio 1 ordi a ce1 or

Special Civil Actions 3 a / ot+er ,over -e tal re,ulatio -a/1 )efore )reac+ or violatio t+ereof1 )ri , a actio i t+e appropriate Re,io al Trial Court to deter-i e a / 4ue!tio of co !tructio or validit/ ari!i ,1 a d for a declaratio of +i! ri,+t! or dutie!1 t+ereu der. A actio for t+e refor-atio of a i !tru-e t1 to 4uiet title to real propert/ or re-ove cloud! t+erefro-1 or to co !olidate o0 er!+ip u der Article '#9& of t+e Civil Code1 -a/ )e )rou,+t u der t+i! Rule. "'a1 R#5(
Cf Article 1607 NCC: Art. 1607. In case of real property, the consolidation of ownership in the vendee by virtue of the failure of the vendor to co ply with the provisions of article 1616 shall not be recorded in the Registry of Property without a judicial order, after the vendor has been duly heard. Cf Article 1616 NCC: Art. 1616. !he vendor cannot avail hi self of the ri"ht of repurchase without returning to the vendee the price of the sale, and in addition: 1. !he expenses of the contract, and any other legitimate payments ade by reason of the sale# $. !he necessary and useful expenses ade on the thin" sold.

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Requi ite !or declarator" relie!

.1 plaintiff is interested written instrument under a deed, will, contract or other

.2 plaintiff5s rights are affected by a statute, e8ecutive order or regulation, ordinance, or any other governmental regulation .3 before breach or violation thereof .4 bring an action in the appropriate 916 ." purpose is .a to determine any question of construction or validity arising thereunder, and .b for a declaration of his rights or duties thereunder An action for declaratory relief may also be brought for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership. 1o register his title to real property bought with a right redemption, the buyer must file an action for declaratory relief. cf Art. 1$:% and 1$1$ .66
Art. 1$:%. /n case of real property, the consolidation of ownership in the vendee by virtue of the failure of the vendor to comply with the provisions of article 1$1$ shall not be recorded in the 9egistry of ;roperty without a ,udicial order, after the vendor has been duly heard. *n+ Art. 1$1$. 1he vendor cannot avail himself of the right of repurchase without returning to the vendee the price of the sale, and in addition3 *1+ 1he e8penses of the contract, and any other legitimate payments made by reason of the sale# *2+ 1he necessary and useful e8penses made on the thing sold. *1"1&+

of

oreover, the action should be predicated on the ff conditions3 1. there must be a ,usticiable controversy# 2. the controversy must be between persons whose interest are adverse# 3. the party seeking declaratory relief must have a legal interest in the controversy# and 4. the issue involved must be ripened for ,udicial determination. *1olentino vs. 7oard of Accountancy, (: ;hil., &3+.

Special Civil Actions 4 Sec. $. Parties. * All per!o ! 0+o +ave or clai- a / i tere!t 0+ic+ 0ould )e affected )/ t+e declaratio !+all )e -ade partie!: a d o declaratio !+all1 e8cept a! ot+er0i!e provided i t+e!e Rule!1 pre.udice t+e ri,+t! of per!o ! ot partie! to t+e actio . "$a1 R#5( Sec. 2. otice on Solicitor !eneral. * I a / actio 0+ic+ i volve! t+e validit/ of a !tatute1 e8ecutive order or re,ulatio 1 or a / ot+er ,over -e tal re,ulatio 1 t+e Solicitor ;e eral !+all )e otified )/ t+e part/ a!!aili , t+e !a-e a d !+all )e e titled to )e +eard upo !uc+ 4ue!tio . "2a1 R#5( Sec. 5. "ocal go#ernment ordinances. * I a / actio i volvi , t+e validit/ of a local ,over -e t ordi a ce1 t+e corre!po di , pro!ecutor or attor e/ of t+e local ,over -e tal u it i volved !+all )e !i-ilarl/ otified a d e titled to )e +eard. If !uc+ ordi a ce i! alle,ed to )e u co !titutio al1 t+e Solicitor ;e eral !+all al!o )e otified a d e titled to )e +eard. "5a1 R#5( Sec. 6. $ourt action discretionary. * E8cept i actio ! falli , u der t+e !eco d para,rap+ of !ectio ' of t+i! Rule1 t+e court1 -otu proprio or upo -otio 1 -a/ refu!e to e8erci!e t+e po0er to declare ri,+t! a d to co !true i !tru-e t! i a / ca!e 0+ere a deci!io 0ould ot ter-i ate t+e u certai t/ or co trover!/ 0+ic+ ,ave ri!e to t+e actio 1 or i a / ca!e 0+ere t+e declaratio or co !tructio i! ot ece!!ar/ a d proper u der t+e circu-!ta ce!. "6a1 R#5(

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Ground !or t#e court to re!u e to e$erci e declarator" relie!

.1 a decision would not terminate the uncertainty or controversy which gave rise to the action, or .2 the declaration or construction is not necessary and proper under the circumstances. Sec. #. $on#ersion into ordinary action. * If )efore t+e fi al ter-i atio of t+e ca!e1 a )reac+ or violatio of a i !tru-e t or a !tatute1 e8ecutive order or re,ulatio 1 ordi a ce1 or a / ot+er ,over -e tal re,ulatio !+ould ta7e place1 t+e actio -a/ t+ereupo )e co verted i to a ordi ar/ actio 1 a d t+e partie! !+all )e allo0ed to file !uc+ pleadi ,! a! -a/ )e ece!!ar/ or proper. "#a1 R#5( Ordi ar/ civil actio < plaintiff alleges that his right has been violated by the defendant# ,udgment rendered is coercive in character# a writ of e8ecution may be e8ecuted against the defeated party Special civil actio of declarator/ relief < an impending violation is sufficient to file a declaratory relief# no e8ecution may be issued# the court merely makes a declaration

).Ca!e! Edades v. Edades, 99 P#il 675 (1956)

1he determination of hereditary rights in the estate of a living person is not a proper sub,ect of an action for declaratory relief. 1he remedy is declaratory relief for declaration of filiation.

Santos v. Aquino, 94 P#il 65 (195%)

!eclaratory relief for construction is not a proper remedy where the terms of the questioned ordinance are are clear and unambiguous. 1he remedy of declaratory relief for invalidity is precluded by a breach *e.g. the ta8 imposed by the questioned ordinance is already due when

Special Civil Actions 5 the case was filed+. 2inally, an action for declaratory relief must also be brought by a real party in interest. Note3 0ad the case been filed before the ta8es became due, the action would have been converted into an ordinary civil action.

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Gomez v. Palomar, &5 SCRA 8&7 (1968)

A requisite for declaratory relief for invalidity is that it must have been brought before a breach or violation. 6onversion into a civil action applies only if the breach occurs after the filing of the action but before the termination thereof.

'atalin Coconut () 'unicipalit" o! 'ala*an+, 14% SCRA 4,4 (1986)

=here a ta8 imposed by the questioned ordinance was paid under protest, there is no breach, and hence declaratory relief still lies. /n any case, declaratory relief is proper as to future ta8es that may be imposed. Note3 6ould not the plaintiffs in Santos and Gomez claim that their action for declaratory relief is proper for future ta8es to be imposed or future stamps to be required>

2.Revie0 of <ud,-e t! a d =i al Order! or Re!olutio ! of t+e Co--i!!io o Electio ! a d t+e Co--i!!io o Audit "Rule #5(
Sectio '. Scope. * T+i! Rule !+all ,over t+e revie0 of .ud,-e t! a d fi al order! or re!olutio ! of t+e Co--i!!io o Electio ! a d t+e Co--i!!io o Audit. " ( .ote that despite ?ec. %, Art. /@'A of the 1(&% 6onstitution,
?ection %. 888 Anless otherwise provided by this 6onstitution or by law, any decision, order, or ruling of each 6ommission may be brought to the ?upreme 6ourt on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

appeals from decisions of the 6ivil ?ervice 6ommission are now brought to the 6A by law *9A %(:2 which took effect on 2ebruary 1(("+ via petition for review under 9ule 43. Sec. $. Mode of re#iew. * A .ud,-e t or fi al order or re!olutio of t+e Co--i!!io o Electio ! a d t+e Co--i!!io o Audit -a/ )e )rou,+t )/ t+e a,,rieved part/ to t+e Supre-e Court o certiorari u der Rule #61 e8cept a! +erei after provided. " ( Sec. 2. %ime to file petition. * T+e petitio !+all )e filed 0it+i t+irt/ "29( da/! frootice of t+e .ud,-e t or fi al order or re!olutio !ou,+t to )e revie0ed. T+e fili , of a -otio for e0 trial or reco !ideratio of !aid .ud,-e t or fi al order or re!olutio 1 if allo0ed u der t+e procedural rule! of t+e Co--i!!io co cer ed1 !+all i terrupt t+e period +erei fi8ed. If t+e -otio i! de ied1 t+e a,,rieved part/ -a/ file t+e petitio 0it+i t+e re-ai i , period1 )ut 0+ic+ !+all ot )e le!! t+a five "6( da/! i a / eve t1 rec7o ed fro- otice of de ial. " ( .ote that petition for review from decisions of quasi',udicial agencies to the 6A should be within 1" days and does not stay the decision appealed. ;etition for review from decisions of the 916 decided in its appellate ,urisdiction filed to the 6A should be filed within 1" days and stays e8ecution, unless the case is under the rules of ?ummary ;rocedure.

Special Civil Actions 6 ?pecial civil actions of certiorari, prohibition, and mandamus, from 6omelec and 6oA should be filed within 3: days, and does not stay the decision appealed. >otto-li e3 !ecisions of quasi',udicial bodies are not stayed by appeal alone. !ecisions of regular courts are stayed on appeal *de Beon3 1hough in petition for review on certiorari to the ?6 via 9ule 4", there is no e8press provision on effect of appeal on e8ecution+. Note3 1he )not less than " days- provision for filing a pleading applies only to .1 filing an answer after a denial of a t! .2 filing an answer after denial or service of a bill of particulars .3 filing an special civil action for certiorari from a decision of the 6omelec or 6oA after denial of a f9 or .1 /t does not apply to filing appeal from decisions of other entities after denial of a f9 or .1. /n such cases, either the parties have a fresh 1" days, or the balance. Sec. 5. Docket and other lawful fees. * 3po t+e fili , of t+e petitio 1 t+e petitio er !+all pa/ to t+e cler7 of court t+e doc7et a d ot+er la0ful fee! a d depo!it t+e a-ou t of P699.99 for co!t!. " ( Sec. 6. &orm and contents of petition. * T+e petitio !+all )e verified a d filed i ei,+tee "'?( le,i)le copie!. T+e petitio !+all a-e t+e a,,rieved part/ a! petitio er a d !+all .oi a! re!po de t! t+e Co--i!!io co cer ed a d t+e per!o or per!o ! i tere!ted i !u!tai i , t+e .ud,-e t1 fi al order or re!olutio a 4uo. T+e petitio !+all !tate t+e fact! 0it+ certai t/1 pre!e t clearl/ t+e i!!ue! i volved1 !et fort+ t+e ,rou d! a d )rief ar,u-e t! relied upo for revie01 a d pra/ for .ud,-e t a ulli , or -odif/i , t+e 4ue!tio ed .ud,-e t1 fi al order or re!olutio . =i di ,! of fact of t+e Co--i!!io !upported )/ !u)!ta tial evide ce !+all )e fi al a d o %revie0a)le. T+e petitio !+all )e acco-pa ied )/ a clearl/ le,i)le duplicate ori,i al or certified true cop/ of t+e .ud,-e t1 fi al order or re!olutio !u).ect t+ereof1 to,et+er 0it+ certified true copie! of !uc+ -aterial portio ! of t+e record a! are referred to t+erei a d ot+er docu-e t! releva t a d perti e t t+ereto. T+e re4ui!ite u-)er of copie! of t+e petitio !+all co tai plai copie! of all docu-e t! attac+ed to t+e ori,i al cop/ of !aid petitio . T+e petitio !+all !tate t+e !pecific -aterial date! !+o0i , t+at it 0a! filed 0it+i t+e period fi8ed +erei 1 a d !+all co tai a !0or certificatio a,ai !t foru- !+oppi , a! provided i t+e t+ird para,rap+ of !ectio 21 Rule 5#. T+e petitio !+all furt+er )e acco-pa ied )/ proof of !ervice of a cop/ t+ereof o t+e Co--i!!io co cer ed a d o t+e adver!e part/1 a d of t+e ti-el/ pa/-e t of doc7et a d ot+er la0ful fee!. T+e failure of petitio er to co-pl/ 0it+ a / of t+e fore,oi , re4uire-e t! !+all )e !ufficie t ,rou d for t+e di!-i!!al of t+e petitio . " ( 4oing to the ?6, always 1& copies. 4oing to the 6A, always % copies. 1he petitioner must also file a certification against forum'shopping. Sec. #. Order to comment. * If t+e Supre-e Court fi d! t+e petitio !ufficie t i for- a d !u)!ta ce1 it !+all order t+e re!po de t! to file t+eir co--e t! o t+e petitio 0it+i te "'9( da/! fro- otice t+ereof: ot+er0i!e1 t+e Court -a/ di!-i!! t+e petitio outri,+t. T+e

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Special Civil Actions 7 Court -a/ al!o di!-i!! t+e petitio if it 0a! filed -a ife!tl/ for dela/1 or t+e 4ue!tio ! rai!ed are too u !u)!ta tial to 0arra t furt+er proceedi ,!. " ( Sec. &. $omments of respondents. * T+e co--e t! of t+e re!po de t! !+all )e filed i ei,+tee "'?( le,i)le copie!. T+e ori,i al !+all )e acco-pa ied )/ certified true copie! of !uc+ -aterial portio ! of t+e record a! are referred to t+erei to,et+er 0it+ ot+er !upporti , paper!. T+e re4ui!ite u-)er of copie! of t+e co--e t! !+all co tai plai copie! of all docu-e t! attac+ed to t+e ori,i al a d a cop/ t+ereof !+all )e !erved o t+e petitio er. No ot+er pleadi , -a/ )e filed )/ a / part/ u le!! re4uired or allo0ed )/ t+e Court. " ( Sec. ?. 'ffect of filing. * T+e fili , of a petitio for certiorari !+all ot !ta/ t+e e8ecutio of t+e .ud,-e t or fi al order or re!olutio !ou,+t to )e revie0ed1 u le!! t+e Supre-e Court !+all direct ot+er0i!e upo !uc+ ter-! a! it -a/ dee- .u!t. " ( Sec. @. Su(mission for decision. * 3 le!! t+e Court !et! t+e ca!e for oral ar,u-e t1 or re4uire! t+e partie! to !u)-it -e-ora da1 t+e ca!e !+all )e dee-ed !u)-itted for deci!io upo t+e fili , of t+e co--e t! o t+e petitio 1 or of !uc+ ot+er pleadi ,! or paper! a! -a/ )e re4uired or allo0ed1 or t+e e8piratio of t+e period to do !o. " (

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5.Certiorari1 Pro+i)itio a.Defi itio !

0it+out .uri!dictio want of ,urisdiction

a d Ma da-u!

< no ,urisdiction from the beginning# absolute the limits of authority

i e8ce!! of .uri!dictio < transcended without any statutory authority

,rave a)u!e of di!cretio < e8ercised its power in an arbitrary or despotic manner by reason of passion or personal hostilities# so patent and gross as to amount to an evasion or virtual refusal to perform the duty en,oined or to act in contemplation of law

).Purpo!e! of a 0rit of
Certiorari < to correct errors of ,urisdiction# refers to only to ,udicial or quasi',udicial functions Pro+i)itio < to prevent respondent from usurping a ,urisdiction which it is not legally vested# refers to ,udicial, quasi',udicial, or ministerial functions Ma da-u! < to require or compel the respondent to perform a particular duty, which duty results from the official station of the respondent, or from operation of law# refers only to ministerial duties Auo Warra to ' a demand made by the state upon some individual or corporation to show by what right they e8ercise some franchise or privilege appertaining to the ?tate which according to the 6onstitution or the laws of the land, they can not legally e8ercise by virtue of a grant or authority from the ?tate

c.Di!ti ,ui!+

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Certiorari !irected against a person e8ercising to ,udicial or quasi' ,udicial functions Cb,ect is to correct ;urpose is to annul or modify the proceedings ;erson or entity must have acted without or in e8cess of ,urisdiction, or with grave abuse of discretion Pro+i)itio Always the main action

Special Civil Actions Pro+i)itio !irected against a person e8ercising ,udicial or quasi' ,udicial functions, or ministerial functions Cb,ect is to prevent ;urpose is to stop the proceedings ;erson or entity must have acted without or in e8cess of ,urisdiction, or with grave abuse of discretion Ma da-u!

Certiorari ( ) Pro#i*ition ( ) 'anda-u

!irected against a person e8ercising ministerial duties Cb,ect is to compel ;urpose is to compel performance of the act required and to collect damages ;erson must have neglected a ministerial duty or e8cluded another from a right or office

Pro#i*ition ( ) In.unction
I .u ctio ay be the main action or ,ust a provisional remedy !irected against a party !oes not involve a question of ,urisdiction

!irected against a court, a tribunal e8ercising ,udicial or quasi',udicial functions 4round must be the court acted without or in e8cess of ,urisdiction

Pro#i*ition ( ) 'anda-u
Pro+i)itio 1o prevent an act by a respondent ay be directed against entities e8ercising ,udicial or quasi' ,udicial, or ministerial functions D8tends to discretionary functions Ma da-u! 1o compel an act desired ay be directed against ,udicial and non',udicial entities D8tends only to ministerial functions Auo 0arra to 6larifies who has legal title to the office, or franchise 9espondent usurps the office

'anda-u ( /uo 0arranto

Ma da-u! 6larifies legal duties, not legal titles 9espondent, without claiming any right to the office, e8cludes the petitioner Certiorari a! a Mode of Appeal "Rule 56( only questions of law may be raised

Certiorari Rule45 ( ) Certiorari Rule65

Certiorari a! a Special Civil Actio "Rule #6( question of whether the lower court acted without or in e8cess

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Special Civil Actions 9 of ,urisdiction or with grave abuse of discretion may be directed against an interlocutory order of the court or where no appeal or plain or speedy remedy available in the ordinary course of law

involves review of ,udgments, awards, or final orders *e8ception3 may be directed against an interlocutory order when such order is patently illegal. ;p v 9amos &3 ?69A 1+ filed within 1" days from notice of the ,udgment or final order or resolution appealed from, or of the denial of the petitioner5s .1 or f9# the ?6 may for ,ustifiable reasons grant an e8tension of 3: days stays e8ecution of the ,udgment, award or order appealed from lower courts or ,udges thereof are not impleaded

filed within $: days from notice of the ,udgment, order or resolution

D8ecution is not stayed unless a 19C or a writ of ;/ has been issued the lower court or ,udge is impleaded as a public respondent f9 is a condition precedent, sub,ect to e8ceptions to wit3

;rior

f9 not required

.1 case involves atters of e%tre e ur"ency# .$ order or &ud" ent co plained of is a patent nullity# .' when the (uestion has been properly raised, ar"ued and sub itted to respondent court and passed upon by it.

applicable to regular courts *6A, 916, ?andiganbayan+

appellate ,urisdiction is invoked *power to review+ Note3 D8ension of 3: days may be granted for ,ustifiable reasons Note3 2iled only with the ?6 Note3 ?6 may deny the decision motu propio

applicable to regular courts, tribunals, and quasi',udicial bodies. original ,urisdiction is invoked# ?6 e8ercises its power of control and supervision over proceedings of the lower court *power of control+ Note3 D8tension of 1" days may be granted for compelling reasons Note3 ay be filed in all courts of general ,urisdiction

$ertiorari1 Pro+i)itio d.Rule #6

a d Ma da-u!

Sectio '. Petition for certiorari. * W+e a / tri)u al1 )oard or officer e8erci!i , .udicial or 4ua!i%.udicial fu ctio ! +a! acted 0it+out or i e8ce!! of it! or +i! .uri!dictio 1 or 0it+ ,rave a)u!e of di!cretio a-ou ti , to lac7 or e8ce!! of .uri!dictio 1 a d t+ere i! o appeal1 or a / plai 1 !peed/1 a d ade4uate re-ed/ i t+e

Special Civil Actions 10 ordi ar/ cour!e of la01 a per!o a,,rieved t+ere)/ -a/ file a verified petitio i t+e proper court1 alle,i , t+e fact! 0it+ certai t/ a d pra/i , t+at .ud,-e t )e re dered a ulli , or -odif/i , t+e proceedi ,! of !uc+ tri)u al1 )oard or officer1 a d ,ra ti , !uc+ i cide tal relief! a! la0 a d .u!tice -a/ re4uire. T+e petitio !+all )e acco-pa ied )/ a certified true cop/ of t+e .ud,-e t1 order or re!olutio !u).ect t+ereof1 copie! of all pleadi ,! a d docu-e t! releva t a d perti e t t+ereto1 a d a !0or certificatio of o %foru- !+oppi , a! provided i t+e t+ird para,rap+ of !ectio 21 Rule 5#. "'a( Me-oriBeC .ote that certiorari is directed only against an entity exercising judicial or quasi-judicial functions. 1he result is proceedings are annulled or modified. Sec. $. Petition for prohi(ition. * W+e t+e proceedi ,! of a / tri)u al1 corporatio 1 )oard1 officer or per!o 1 0+et+er e8erci!i , .udicial1 4ua!i%.udicial or -i i!terial fu ctio !1 are 0it+out or i e8ce!! of it! or +i! .uri!dictio 1 or 0it+ ,rave a)u!e of di!cretio a-ou ti , to lac7 or e8ce!! of .uri!dictio 1 a d t+ere i! o appeal or a / ot+er plai 1 !peed/1 a d ade4uate re-ed/ i t+e ordi ar/ cour!e of la01 a per!o a,,rieved t+ere)/ -a/ file a verified petitio i t+e proper court1 alle,i , t+e fact! 0it+ certai t/ a d pra/i , t+at .ud,-e t )e re dered co--a di , t+e re!po de t to de!i!t fro- furt+er proceedi ,! i t+e actio or -atter !pecified t+erei 1 or ot+er0i!e ,ra ti , !uc+ i cide tal relief! a! la0 a d .u!tice -a/ re4uire. T+e petitio !+all li7e0i!e )e acco-pa ied )/ a certified true cop/ of t+e .ud,-e t1 order or re!olutio !u).ect t+ereof1 copie! of all pleadi ,! a d docu-e t! releva t a d perti e t t+ereto1 a d a !0or certificatio of o %foru- !+oppi , a! provided i t+e t+ird para,rap+ of !ectio 21 Rule 5#. "$a( Me-oriBeC .ote that pro+i)itio is directed against anybody. 1he result is the respondent is ordered to desist from further proceedings. Sec. 2. Petition for mandamus. * W+e a / tri)u al1 corporatio 1 )oard1 officer or per!o u la0full/ e,lect! t+e perfor-a ce of a act 0+ic+ t+e la0 !pecificall/ e .oi ! a! a dut/ re!ulti , fro- a office1 tru!t1 or !tatio 1 or u la0full/ e8clude! a ot+er fro- t+e u!e a d e .o/-e t of a ri,+t or office to 0+ic+ !uc+ ot+er i! e titled1 a d t+ere i! o ot+er plai 1 !peed/ a d ade4uate re-ed/ i t+e ordi ar/ cour!e of la01 t+e per!o a,,rieved t+ere)/ -a/ file a verified petitio i t+e proper court1 alle,i , t+e fact! 0it+ certai t/ a d pra/i , t+at .ud,-e t )e re dered co--a di , t+e re!po de t1 i--ediatel/ or at !o-e ot+er ti-e to )e !pecified )/ t+e court1 to do t+e act re4uired to )e do e to protect t+e ri,+t! of t+e petitio er1 a d to pa/ t+e da-a,e! !u!tai ed )/ t+e petitio er )/ rea!o of t+e 0ro ,ful act! of t+e re!po de t. T+e petitio !+all al!o co tai a !0or certificatio !+oppi , a! provided i t+e t+ird para,rap+ of !ectio "2a( Me-oriBeC .ote that -a da-u! is directed against entities exercising only ministerial functions. 1he result is the respondent is ordered to desist from further proceedings. of o %foru21 Rule 5#.

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Special Civil Actions 11 Sec 5. When and where petition filed. % T+e petitio !+all )e filed ot later t+a !i8t/ "#9( da/! fro- otice of t+e .ud,-e t1 order or re!olutio . I ca!e a -otio for reco !ideratio or e0 trial i! ti-el/ filed1 0+et+er !uc+ -otio i! re4uired or ot1 t+e !i8t/ "#9( da/ period !+all )e cou ted fro- otice of t+e de ial of t+e !aid -otio . T+e petitio !+all )e filed i t+e Supre-e Court or1 if it relate! to t+e act! or o-i!!io ! of a lo0er court or of a corporatio 1 )oard1 officer or per!o 1 i t+e Re,io al Trial Court e8erci!i , .uri!dictio over t+e territorial area a! defi ed )/ t+e Supre-e Court. It -a/ al!o )e filed i t+e Court of Appeal! 0+et+er or ot t+e !a-e i! i t+e aid of it! appellate .uri!dictio 1 or i t+e Sa di,a )a/a if it i! i aid of it! appellate .uri!dictio . If it i volve! t+e act! or o-i!!io ! of a 4ua!i%.udicial a,e c/1 u le!! ot+er0i!e provided )/ la0 or t+e!e rule!1 t+e petitio !+all )e filed i a d co, iBa)le o l/ )/ t+e Court of Appeal!. No e8te !io of ti-e to file t+e petitio !+all )e ,ra ted e8cept for co-pelli , rea!o a d i o ca!e e8ceedi , fiftee "'6( da/!. "5a( Bike petitions for review to the 6A and petition for review on certiorari to the ?6, the period to file a special civil action for certiorari is counted from notice of the ,udgment or denial of a .1 or f9, unlike in ordinary appeals where an f9 or .1 only tolls the period and the appellant has only remainder of the original 1" day period to appeal. Sec. 6. )espondents and costs in certain cases. * W+e t+e petitio filed relate! to t+e act! or o-i!!io ! of a .ud,e1 court1 4ua!i% .udicial a,e c/1 tri)u al1 corporatio 1 )oard1 officer or per!o 1 t+e petitio er !+all .oi 1 a! private re!po de t or re!po de t! 0it+ !uc+ pu)lic re!po de t or re!po de t!1 t+e per!o or per!o ! i tere!ted i !u!tai i , t+e proceedi ,! i t+e court: a d it !+all )e t+e dut/ of !uc+ private re!po de t! to appear a d defe d1 )ot+ i +i! or t+eir o0 )e+alf a d i )e+alf of t+e pu)lic re!po de t or re!po de t! affected )/ t+e proceedi ,!1 a d t+e co!t! a0arded i !uc+ proceedi ,! i favor of t+e petitio er !+all )e a,ai !t t+e private re!po de t! o l/1 a d ot a,ai !t t+e .ud,e1 court1 4ua!i%.udicial a,e c/1 tri)u al1 corporatio 1 )oard1 officer or per!o i-pleaded a! pu)lic re!po de t or re!po de t!. 3 le!! ot+er0i!e !pecificall/ directed )/ t+e court 0+ere t+e petitio i! pe di ,1 t+e pu)lic re!po de t! !+all ot appear i or file a a !0er or co--e t to t+e petitio or a / pleadi , t+erei . If t+e ca!e i! elevated to a +i,+er court )/ eit+er part/1 t+e pu)lic re!po de t! !+all )e i cluded t+erei a! o-i al partie!. Do0ever1 u le!! ot+er0i!e !pecificall/ directed )/ t+e court1 t+e/ !+all ot appear or participate i t+e proceedi ,! t+erei . "6a( Sec. #. Order to comment. * If t+e petitio i! !ufficie t i fora d !u)!ta ce to .u!tif/ !uc+ proce!!1 t+e court !+all i!!ue a order re4uiri , t+e re!po de t or re!po de t! to co--e t o t+e petitio 0it+i te "'9( da/! fro- receipt of a cop/ t+ereof. Suc+ order !+all )e !erved o t+e re!po de t! i !uc+ -a er a! t+e court -a/ direct1 to,et+er 0it+ a cop/ of t+e petitio a d a / a e8e! t+ereto. I petitio ! for certiorari )efore t+e Supre-e Court a d t+e Court of Appeal!1 t+e provi!io ! of !ectio $1 Rule 6#1 !+all )e o)!erved. >efore ,ivi , due cour!e t+ereto1 t+e court -a/ re4uire t+e re!po de t! to file t+eir co--e t to1 a d ot a -otio to di!-i!!1 t+e petitio . T+ereafter1 t+e court -a/ re4uire t+e fili , of a repl/ a d !uc+ ot+er re!po !ive or ot+er pleadi ,! a! it -a/ dee- ece!!ar/ a d proper. "#a(

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Special Civil Actions 12 Sec. &. 'xpediting proceedings* in+uncti#e relief. * T+e court i 0+ic+ t+e petitio i! filed -a/ i!!ue order! e8pediti , t+e proceedi ,!1 a d it -a/ al!o ,ra t a te-porar/ re!trai i , order or a 0rit of preli-i ar/ i .u ctio for t+e pre!ervatio of t+e ri,+t! of t+e partie! pe di , !uc+ proceedi ,!. T+e petitio !+all ot i terrupt t+e cour!e of t+e pri cipal ca!e u le!! a te-porar/ re!trai i , order or a 0rit of preli-i ar/ i .u ctio +a! )ee i!!ued a,ai !t t+e pu)lic re!po de t fro- furt+er proceedi , i t+e ca!e. "&a( A special civil action for certiorari, prohibition, and mandamus does not stay e8ecution, unless a 19C or ;/ is issued. Sec. ?. Proceedings after comment is filed. * After t+e co--e t or ot+er pleadi ,! re4uired )/ t+e court are filed1 or t+e ti-e for t+e fili , t+ereof +a! e8pired1 t+e court -a/ +ear t+e ca!e or re4uire t+e partie! to !u)-it -e-ora da. If after !uc+ +eari , or !u)-i!!io of -e-ora da or t+e e8piratio of t+e period for t+e fili , t+ereof t+e court fi d! t+at t+e alle,atio ! of t+e petitio are true1 it !+all re der .ud,-e t for t+e relief pra/ed for or to 0+ic+ t+e petitio er i! e titled. T+e court1 +o0ever1 -a/ di!-i!! t+e petitio if it fi d! t+e !a-e to )e pate tl/ 0it+out -erit1 pro!ecuted -a ife!tl/ for dela/1 or t+at t+e 4ue!tio ! rai!ed t+erei are too u !u)!ta tial to re4uire co !ideratio . "?a(

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Ground !or t#e court to -otu proprio di -i !or CP'

.1 patently without merit .2 prosecuted manifestly for delay, or .3 the questions raised consideration. therein are too

t#e pecial ci(il action

unsubstantial

to

require

Sec. @. Ser#ice and enforcement of order or +udgment. * A certified cop/ of t+e .ud,-e t re dered i accorda ce 0it+ t+e la!t precedi , !ectio !+all )e !erved upo t+e court1 4ua!i%.udicial a,e c/1 tri)u al1 corporatio 1 )oard1 officer or per!o co cer ed i !uc+ -a er a! t+e court -a/ direct1 a d di!o)edie ce t+ereto !+all )e pu i!+ed a! co te-pt. A e8ecutio -a/ i!!ue for a / da-a,e! or co!t! a0arded i accorda ce 0it+ !ectio ' of Rule 2@. "@a(

e.Ca!e! 1ortic# () Corona, &89 SCRA 6&9 (Apr 1998)

An error of ,udgment is one which the court may commit in the e8ercise of its ,urisdiction, and which error is reviewable only by an appeal. Drror of ,urisdiction is one where the act complained of was issued by the court, officer or a quasi',udicial body without or in e8cess of ,urisdiction, or with grave abuse of discretion which is tantamount to lack or in e8cess of ,urisdiction. 1his error is correctable only by the e8traordinary writ of certiorari.

Dela Cruz v. IAC, 1%4 SCRA 417 (1985)

1he remedy from a dismissal of a case is appeal. ?pecial 6ivil Action of 6ertiorari is precluded where the remedy of appeal was available but has been lost. ?pecial 6ivil Action of 6ertiorari can not take the place of a lost appeal.

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Special Civil Actions

13

*Dauz v. Eleosida, 1 SCRA 99, (1961)

=act!E !auE was charged for non'payment of municipal license fees for the 2nd, 3rd, and 4th quarters of 1("&. !auE moved to quash on the ground that the facts did not constitute an offense because he had paid municipal license fees for the 1st quarter and therefore the remedy of the government was to collect by civil action. !enied by the ,ustice of the peace. !auE files a petition for certorari with the 62/. Again denied. DeldE 1he act complained of was clearly in violation of an ordinance which provides for a penalty therefore. =hether or not he paid for the 1st quarter constitutes a defense which he may prove during the trial. /f such defense fails, appeal is available. =here appeal is available, certiorari and prohibition do not lie.

People v. Ramos, 8% SCRA 1 (1978)

=here an information or complaint been allowed despite a patent defect *e.g. prescription+, appeal is not an adequate remedy. 0owever, mandamus is not a proper remedy to quash an information because the latter is not a ministerial function. 1he proper remedies are certiorari and prohibition.

*Bautista v. Sarmiento, 1&8 SCRA 587 (1985)

?pecial civil action for certiorari is not the proper remedy from a denial of a demurrer to evidence. !enial of a demurrer to evidence is merely an interlocutory order which can not be the sub,ect of a petition for certiorari. 1he remedy is to continue with the trial of the case and had the decision been adverse, to raise the issue on appeal. Note3 =hat happened to the principle that )interlocutory orders are not appealable, but may be sub,ect to certiorari>- ?pecial civil action for certiorari is precisely the only remedy from interlocutory orders. / think what the ?6 was trying to say was interlocutory orders are not appealable, and the only remedy is a special civil action for certiorari. 7ut this remedy is available only as an e8ception rather than the rule.

*Vda. de Ba an! v. CA, 1&5 SCRA 1%7 (198%)

=act!E ;etitioners filed action to recover their hereditary shares in land that was awarded 43 years ago in a cadastral case. 9espondents moved to dismiss on res ,udicata and prescription. !enied. DeldE ;etitionersF action is clearly barred by valid prior ,udgments and prescription. ;rivate respondentsF 1orrens titles over the hacienda have long become indefeasible. ?ince the grounds for dismissal are indubitable, the defendants had the right to resort to the more speedy and adequate remedies of certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of ,urisdiction, committed by the trial court in not dismissing the case. =here the lower court refuses to dismiss the on a ground shown to be indubitable *e.g. res ,udicata and prescription+, certiorari and prohibition is allowed. Note3 /n these cases, the ?6 could have decided either way. 2A A!C93 a 1orrens 1itle may be attacked by questioning the validity of the Crder granting such title. 1he right to question a void act does not prescribe.

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Special Civil Actions

14

Santia!o v. CA, 184 SCRA 59, (199,)

=act!3 Gudge disapproves agreement of parties as to ,ust compensation in an e8propriation proceedings. Cn special civil action for certiorari to the 6A, 6A reverses. 6ontending that since he was impleaded in the certiorari case before the 6A, he now files a petition for review on certiorari before the ?6. Deld3 Cnly a party is allowed to appeal to the ?6 by petition for review on certiorari. 1he ,udge who rendered the questioned decision is not a party. 1he fact that he was named a party respondent before the ?6 does not give him capacity to appeal. 0is being named a respondent is only for the purpose of questioning the ,urisdiction of the court itself. 1he ,udge is merely a nominal party. 9espect for ,udicial hierarchy bars a ,udge from suing against an adverse opinion of an appellate court.

2Calderon () Solicitor3General, &15 SCRA 876 (199&)

=act!E Gudge increases bail to an amount beyond that prescribed. Cn special civil action for certiorari, 6A annuls ,udge5s order. Gudge files f9 in which the ?olicitor 4eneral refuses to represent him. Gudge goes to ?6 on special civil action for certiorari and mandamus to compel the ?olicitor 4eneral to represent him. DeldE A ,udge can not seek a reversal of a decision reversing his own decision. 1he ,udge has no standing to file the certiorari proceeding. 0e is merely a nominal party in the certiorari proceeding before the 6A. 2urthermore, the ?olicitor 4eneral has discretion to decide when and how to prosecute a case. 0is duty is therefore discretionary, not ministerial, and therefore can not be compelled by mandamus. Note3 .ote that in these last ,udges were invoking the fact /t is only in special civil courts are impleaded. /n all is, strictly speaking, not impleaded. 2 decisions *Santos and Calderon+, the that they were impleaded before the 6A. actions for certiorari that the lower modes of appeal *special civil action an appeal+, the lower court is not

2'unicipalit" o! 4i5an, 6a+una () CA, &19 SCRA 69 (199%)

=act!E unicipality files an e,ectment case against a lessee of its property. 16 rules for municipality. D8ecution pending appeal was granted. Bessee questions the e8ecution pending appeal in a petition for certiorari before the 6A. 1he 6A not only annulled e8ecution pending appeal, but also reversed the main decision. DeldE 1he only issue in the certiorari proceedings was the propriety of the e8ecution pending appeal. Dven if the error in the main decision was raised in the certiorari proceedings, such issue is improper because the remedy of appeal is still available and was in fact availed of.

Cara*ot () CA 145 SCRA %77 6.Auo Warra to

Auo Warra to < a demand made by the ?tate upon some individual or corporation to show by what right they e8ercise some franchise or privilege appertaining to the ?tate which according to the 6onstitution or the laws of the land, they can not legally e8ercise by virtue of a grant or authority from the ?tate Auo Warra to Ma da-u!

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Special Civil Actions duties,

15

9emedy to try an office or 1o clear legal franchise and to oust the holder disputed titles from en,oyment

not

1here is usurpation or intrusion 9espondent need not claim right to into an office by the respondent an office but e8cludes petitioner therefrom Auo Warra to Electio Co te!t

!isputes relates to the !ispute refers to irregularities eligibility of the candidate elect in the conduct of election 9espondent ousted but petitioner ?uccessful protestant will assume does not always assume office office if he had plurality of valid votes Auo Warra to i /ssue is respondent Elective Office! of Auo Warra to i Appoi tive Office! validity to of the

eligibility

the /ssue is the appointment

;etitioner does not seek replace ;etitioner respondent repondent

seeks

replace

Auo Warra to a.Rule ##

4eneral procedure in quo warranto Sectio '. Action (y !o#ernment against indi#iduals. * A actio for t+e u!urpatio of a pu)lic office1 po!itio or fra c+i!e -a/ )e co--e ced )/ a verified petitio )rou,+t i t+e a-e of t+e Repu)lic of t+e P+ilippi e! a,ai !tE "a( A per!o 0+o u!urp!1 i trude! i to1 or u la0full/ +old! or e8erci!e! a pu)lic office1 po!itio or fra c+i!e: ")( A pu)lic officer 0+o doe! or !uffer! a act 0+ic+1 )/ t+e provi!io of la01 co !titute! a ,rou d for t+e forfeiture of +i! office: or "c( A a!!ociatio 0+ic+ act! a! a corporatio 0it+i t+e P+ilippi e! 0it+out )ei , le,all/ i corporated or 0it+out la0ful aut+orit/ !o to act. "'a(

Ground !or quo 7arranto !iled "# t$e !overnment

.1 a person usurps, intrudes into, or unlawfully holds or e8ercises a public office, position or franchise# .2 a public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office# or .3 an association which acts as a corporation within the ;hilippines without being legally incorporated or without lawful authority so to act. Sec. $. When Solicitor !eneral or pu(lic prosecutor must commence action. * T+e Solicitor ;e eral or a pu)lic pro!ecutor1 0+e directed )/ t+e Pre!ide t of t+e P+ilippi e!1 or 0+e upo co-plai t or

Special Civil Actions 16 ot+er0i!e +e +a! ,ood rea!o to )elieve t+at a / ca!e !pecified i t+e precedi , !ectio ca )e e!ta)li!+ed )/ proof1 -u!t co--e ce !uc+ actio . "2a( Sec. 2. When Solicitor !eneral or pu(lic prosecutor may commence action with permission of court. * T+e Solicitor ;e eral or a pu)lic pro!ecutor -a/1 0it+ t+e per-i!!io of t+e court i 0+ic+ t+e actio i! to )e co--e ced1 )ri , !uc+ a actio at t+e re4ue!t a d upo t+e relatio of a ot+er per!o : )ut i !uc+ ca!e t+e officer )ri ,i , it -a/ fir!t re4uire a i de- it/ for t+e e8pe !e! a d co!t! of t+e actio i a a-ou t approved )/ a d to )e depo!ited i t+e court )/ t+e per!o at 0+o!e re4ue!t a d upo 0+o!e relatio t+e !a-e i! )rou,+t. "5a( Sec. 5. When hearing had on application for permission to commence action. * 3po applicatio for per-i!!io to co--e ce !uc+ actio i accorda ce 0it+ t+e e8t precedi , !ectio 1 t+e court !+all direct t+at otice )e ,ive to t+e re!po de t !o t+at +e -a/ )e +eard i oppo!itio t+ereto: a d if per-i!!io i! ,ra ted1 t+e court !+all i!!ue a order to t+at effect1 copie! of 0+ic+ !+all )e !erved o all i tere!ted partie!1 a d t+e petitio !+all t+e )e filed 0it+i t+e period ordered )/ t+e court. "6a(

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Requi ite !or /uo 0arranto *" Go(ern-ent a+ain t indi(idual

.1 verified petition .2 commenced by the ?olicitor 4eneral or public prosecutor, in the name of the 9epublic of the ;hilippines after either .a being directed by the ;resident .b upon complaint or otherwise, he has good reason to believe the grounds can be established by proof, or .c with the permission of the court +1 at the request and upon the relation of another person +2 after requiring an indemnity for the e8penses and costs of the action in an amount approved by and to be deposited in the court +3 court directs that notice be given to the respondent Sec. 6. When an indi#idual may commence such an action. * A per!o clai-i , to )e e titled to a pu)lic office or po!itio u!urped or u la0full/ +eld or e8erci!ed )/ a ot+er -a/ )ri , a actio t+erefor i +i! o0 a-e. "#( O l/ ,rou d for 4uo 0arra to filed )/ a i dividual < respondent is usurping, unlawfully holding, or is e8ercising a public office or position being claimed by the petitioner Sec. #. Parties and contents of petition against usurpation. * W+e t+e actio i! a,ai !t a per!o for u!urpi , a pu)lic office1 po!itio or fra c+i!e1 t+e petitio !+all !et fort+ t+e a-e of t+e per!o 0+o clai-! to )e e titled t+ereto1 if a /1 0it+ a aver-e t of +i! ri,+t to t+e !a-e a d t+at t+e re!po de t i! u la0full/ i po!!e!!io t+ereof. All per!o ! 0+o clai- to )e e titled to t+e pu)lic office1 po!itio or fra c+i!e -a/ )e -ade partie!1 a d t+eir re!pective ri,+t! to !uc+ pu)lic office1 po!itio or fra c+i!e deter-i ed1 i t+e !a-e actio . "&a(

0#en t#e action i a+ain t a per on !or u urpin+ a pu*lic o!!ice, po ition or !ranc#i e, t#e petition #all et !ort#
.1 the name of the person who claims to be entitled thereto, if any

.2 averment

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Special Civil Actions

17

.a of petitioner5s right to the same and .b that the respondent is unlawfully in possession thereof All persons who claim to be entitled to the public office, position or franchise may be made parties, and their respective rights to such public office, position or franchise determined, in the same action. Sec. &. ,enue. * A actio u der t+e precedi , !i8 !ectio ! ca )e )rou,+t o l/ i t+e Supre-e Court1 t+e Court of Appeal!1 or i t+e Re,io al Trial Court e8erci!i , .uri!dictio over t+e territorial area 0+ere t+e re!po de t or a / of t+e re!po de t! re!ide!1 )ut 0+e t+e Solicitor ;e eral co--e ce! t+e actio 1 it -a/ )e )rou,+t i a Re,io al Trial Court i t+e Cit/ of Ma ila1 i t+e Court of Appeal!1 or i t+e Supre-e Court. "?a(

8enue !or quo 7arranto

.1 ?6, 6A or 916 e8ercising ,urisdiction over the territorial area where the respondent or any of the respondents resides, or .2 ?6, 6A or 916 of anila < if commenced by the ?olicitor 4eneral Sec. ?. Period for pleadings and proceedings may (e reduced* action gi#en precedence. * T+e court -a/ reduce t+e period provided )/ t+e!e Rule! for fili , pleadi ,! a d for all ot+er proceedi ,! i t+e actio i order to !ecure t+e -o!t e8peditiou! deter-i atio of t+e -atter! i volved t+erei co !i!te t 0it+ t+e ri,+t! of t+e partie!. Suc+ actio -a/ )e ,ive precede ce over a / ot+er civil -atter pe di , i t+e court. "@a( Sec. @. -udgment where usurpation found. * W+e t+e re!po de t i! fou d ,uilt/ of u!urpi ,1 i trudi , i to1 or u la0full/ +oldi , or e8erci!i , a pu)lic office1 po!itio or fra c+i!e1 .ud,-e t !+all )e re dered t+at !uc+ re!po de t )e ou!ted a d alto,et+er e8cluded t+erefro-1 a d t+at t+e petitio er or relator1 a! t+e ca!e -a/ )e1 recover +i! co!t!. Suc+ furt+er .ud,-e t -a/ )e re dered deter-i i , t+e re!pective ri,+t! i a d to t+e pu)lic office1 po!itio or fra c+i!e of all t+e partie! to t+e actio a! .u!tice re4uire!. "'9a(

0#en t#e re pondent i !ound +uilt" o! u urpin+, intrudin+ into, or unla7!ull" #oldin+ or e$erci in+ a pu*lic o!!ice, po ition or !ranc#i e, .ud+-ent #all *e rendered t#at
.1 such respondent be ousted and altogether e8cluded therefrom, and .2 the petitioner or relator, recover his costs .3 further ,udgment determining the respective rights in and to the public office, position or franchise of all the parties to the action as ,ustice requires. Sec. '9. )ights of persons ad+udged entitled to pu(lic office* deli#ery of (ooks and papers* damages. * If .ud,-e t )e re dered i favor of t+e per!o averred i t+e co-plai t to )e e titled to t+e pu)lic office +e -a/1 after ta7i , t+e oat+ of office a d e8ecuti , a / official )o d re4uired )/ la01 ta7e upo +i-!elf t+e e8ecutio of t+e office1 a d -a/ i--ediatel/ t+ereafter de-a d of t+e re!po de t all t+e )oo7! a d paper! i t+e re!po de tF! cu!tod/ or co trol appertai i , to t+e office to 0+ic+ t+e .ud,-e t relate!. If t+e re!po de t refu!e! or e,lect! to deliver a / )oo7 or paper pur!ua t to !uc+ de-a d1 +e -a/ )e pu i!+ed for co te-pt a! +avi , di!o)e/ed a la0ful order of t+e court. T+e per!o ad.ud,ed e titled to t+e office -a/ al!o )ri , actio a,ai !t t+e re!po de t to recover t+e da-a,e! !u!tai ed )/ !uc+ per!o )/ rea!o of t+e u!urpatio . "'6a(

m u k l o

Special Civil Actions

18

A!ter ta9in+ t#e oat# o! o!!ice and e$ecutin+ an" required *ond, ri+#t o! per on ad.ud+ed entitled to pu*lic o!!ice
.1 1o take upon himself the e8ecution of the office .2 to demand of the respondent all the books and papers in the respondent5s custody or control appertaining to the office to which the ,udgment relates, failure of which is punishable by contempt .3 to bring action against the respondent to recover sustained by such person by reason of the usurpation. the damages

Sec. ''. "imitations. * Not+i , co tai ed i t+i! Rule !+all )e co !trued to aut+oriBe a actio a,ai !t a pu)lic officer or e-plo/ee for +i! ou!ter fro- office u le!! t+e !a-e )e co--e ced 0it+i o e "'( /ear after t+e cau!e of !uc+ ou!ter1 or t+e ri,+t of t+e petitio er to +old !uc+ office or po!itio 1 aro!e: or to aut+oriBe a actio for da-a,e! i accorda ce 0it+ t+e provi!io ! of t+e e8t precedi , !ectio u le!! t+e !a-e )e co--e ced 0it+i o e "'( /ear after t+e e tr/ of t+e .ud,-e t e!ta)li!+i , t+e petitio erF! ri,+t to t+e office i 4ue!tio . "'#a(

Pre cription !or quo 7arranto : 1 "ear a!ter

.1 cause of such ouster, or .2 the right of the petitioner to hold such office or position arose ;rescription for an action for damages after quo warranto < 1 year after the entry of the ,udgment establishing the petitioner5s right to the office in question Sec. '$. -udgment for costs. * I a actio )rou,+t i accorda ce 0it+ t+e provi!io ! of t+i! Rule1 t+e court -a/ re der .ud,-e t for co!t! a,ai !t eit+er t+e petitio er1 t+e relator1 or t+e re!po de t1 or t+e per!o or per!o ! clai-i , to )e a corporatio 1 or -a/ apportio t+e co!t!1 a! .u!tice re4uire!. "'&a(

).Ca!e! *Campos v. De!amo, 6 SCRA &%5 (196&)

=act!E 6ouncilors H1 6ampos and H2 Croc files a quo warranto against the ayor !egamo and Iice' ayor ;alarca on the ground that there was no valid canvass for the offices of ayor and Iice ayor effected and the respondents could not legally occupy the said positions because the 7oard of 6anvassers used in their canvass for election the election return coming from the ;rovincial 1reasurerFs Cffice, inspite of the fact that the copy of the election return in the hands of the municipal treasurer was available. 1hey prayed that !egamo and ;alarca be e8cluded from their offices and that 6ampos and Croc be declared entitled thereto. DeldE =here the quo warranto complaint involves an elective office, it must be shown that the plaintiff was duly elected thereto. 6ampos being candidates for councilors and not for mayor and vice'mayor, could not have been elected to the offices in question, and therefore are not proper parties to the quo warranto case. oreover, there being a pending case for quo warranto filed by other candidates for mayor and vice'mayor, the filing of the case at bar was premature and the cause of action had not as yet accrued.

*Sison v. Pan!ramu#en, 84 SCRA %64 (1978)

=act!E ?ison files a petition for quo warranto questioning the appointment of aliwanag by the 6?6 as assistant city assessor on

Special Civil Actions 19 .ovember 1(%3. 0e claims that he should be the one appointed as per the ne8t'in rank'rule. 1he petition was filed on arch 1(%", more than a year after the appointment of aliwanag. DeldE 1he action has prescribed because quo warranto prescribes after 1 year from the time the cause of action accrues *i.e. questioned appointment+. 9esort to administrative remedy does not abate the period for ,udicial action.

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2'unicipalit" o! San ;arci o () 'ende<, &%9 SCRA 11 (1994)

=act!E ;resident 4arcia created the unicipality of ?an Andres by an DC in 1("(. /n 1($", the case of Pelaez v. Auditor-General was promulgated declaring the creation of B4As to be a legislative, not an e8ecutive function. unicipality of ?an .arciso files a petition for quo warranto against the B4 officials of ?an Andres in 1(&(. DeldE T+e 4uo 0arra to i! focu!ed o t+e le,al e8i!te ce of a )od/ politic: t+e actio i! re!erved to t+e State. /t must be brought Jin the name of the 9epublic of the ;hilippinesJ and commenced by the ?olicitor 4eneral or the fiscal Jwhen directed by the ;resident of the ;hilippines.J ?uch officers may, under certain circumstances, bring such an action Jat the request and upon the relation of another personJ with the permission of the court. =hen an individual seeks to commence an action for quo warranto in his own name, this can only be done if he claims to be Jentitled to a public office or position usurped or unlawfully held or e8ercised by another.J =hile the quo warranto proceedings filed below by petitioner municipality has so named only the officials of the unicipality of ?an Andres as respondents, it is virtually, however, a denunciation of the authority of the unicipality or unicipal !istrict of ?an Andres to e8ist and to act in that capacity. >e!ide!1 t+e cau!e of actio +a! pre!cri)ed )ecau!e it 0a! filed earl/ 29 /ear! after t+e cau!e of actio accrued1 0a/ )e/o d t+e ' /ear provided )/ t+e RoC. NoteE ?ec. 1 includes usurpation of franchise as among the ground for quo warranto being filed by the government. /n the Munici ality of San !arciso case, the court interpreted )franchise- loosely.

#.E8propriatio
E-i e t do-ai Ge8propriatio < power of the sovereign state to take or authoriEe the taking of any property within ,urisdiction for the public use and without the owner5s consent E8propriatio ;urpose of public use the taking is Police Po0er for ;urpose of the taking promote general welfare =ithout ,ust compensation is to

=ith ,ust compensation

a.Rule #& General Procedure in =$propriation

.1 verified complaint .2 plaintiff may immediately enter upon deposit, with a government depositary bank, of the assessed value of the property .3 defendant files either .a notice of appearance and manifestation, or .b answer

Special Civil Actions 20 .4 order of e8propriation, may be appealed which does not suspend proceedings ." court appoints 3 commissioners .$ commissioners5 report filed within $: days from notification of appointment .% parties have 1: days to file their ob,ections to the report .& court accepts or re,ects the commissioners5 report, or recommits to the commissioners, or appoint another set of commissioners .( plaintiff enters compensation or retains by possession reversal upon payment of ,ust to

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.1: Dntry not delayed recover possession

appeal#

entitles

defendant

Sectio '. %he complaint. * T+e ri,+t of e-i e t do-ai !+all )e e8erci!ed )/ t+e fili , of a verified co-plai t 0+ic+ !+all !tate 0it+ certai t/ t+e ri,+t a d purpo!e of e8propriatio 1 de!cri)e t+e real or per!o al propert/ !ou,+t to )e e8propriated1 a d .oi a! defe da t! all per!o ! o0 i , or clai-i , to o0 1 or occup/i ,1 a / part t+ereof or i tere!t t+erei 1 !+o0i ,1 !o far a! practica)le1 t+e !eparate i tere!t of eac+ defe da t. If t+e title to a / propert/ !ou,+t to )e e8propriated appear! to )e i t+e Repu)lic of t+e P+ilippi e!1 alt+ou,+ occupied )/ private i dividual!1 or if t+e title i! ot+er0i!e o)!cure or dou)tful !o t+at t+e plai tiff ca ot 0it+ accurac/ or certai t/ !pecif/ 0+o are t+e real o0 er!1 aver-e t to t+at effect !+all )e -ade i t+e co-plai t. "'a(

Content o! a co-plaint !or e$propriation

.1 verified .2 state with certainty the right and purpose of e8propriation .3 describe the real or personal property sought to be e8propriated .4 ,oin as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. ." averment of the following if it so appears .a title to the property is in the 9epublic of the ;hilippines, although occupied by private individuals, or .b title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners Sec. $. 'ntry of plaintiff upon depositing #alue with authori.ed go#ernment depositary. * 3po t+e fili , of t+e co-plai t or at a / ti-e t+ereafter a d after due otice to t+e defe da t1 t+e plai tiff !+all +ave t+e ri,+t to ta7e or e ter upo t+e po!!e!!io of t+e real propert/ i volved if +e depo!it! 0it+ t+e aut+oriBed ,over -e t depo!itar/ a a-ou t e4uivale t to t+e a!!e!!ed value of t+e propert/ for purpo!e! of ta8atio to )e +eld )/ !uc+ )a 7 !u).ect to t+e order! of t+e court. Suc+ depo!it !+all )e i -o e/1 u le!! i lieu t+ereof t+e court aut+oriBe! t+e depo!it of a certificate of depo!it of a ,over -e t )a 7 of t+e Repu)lic of t+e P+ilippi e! pa/a)le o de-a d to t+e aut+oriBed ,over -e t depo!itar/. If per!o al propert/ i! i volved1 it! value !+all )e provi!io all/ a!certai ed a d t+e a-ou t to )e depo!ited !+all )e pro-ptl/ fi8ed )/ t+e court.

Special Civil Actions 21 After !uc+ depo!it i! -ade t+e court !+all order t+e !+eriff or ot+er proper officer to fort+0it+ place t+e plai tiff i po!!e!!io of t+e propert/ i volved a d pro-ptl/ !u)-it a report t+ereof to t+e court 0it+ !ervice of copie! to t+e partie!. "$a(

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Requi ite !or plainti!! to enter upon t#e po e ion o! t#e real propert" in(ol(ed
.1 upon filing of the complaint, or at any time thereafter .2 with due notice to the defendant .3 deposits with the equivalent to the authoriEed government depositary an amount

.a real property < assessed value of the property for purposes of ta8ation .b personal property < value provisionally ascertained and the amount to be deposited as fi8ed by the court *NOTE3 6oncerning right of way, site or location of national government infrastructure pro,ects3 1he required deposit is now non' e8istent pursuant to 9A&(%4+ .4 !eposit must be .a in money, or .b if the court so authoriEes, the deposit of a certificate of deposit of a government bank of the 9epublic of the ;hilippines payable on demand to the authoriEed government depositary. ." court ordering the sheriff or other proper officer to .a place the plaintiff in possession of the property involved and .b submit a report thereof to the court with service of copies to the parties Sec. 2. Defenses and o(+ections. * If a defe da t +a! o o).ectio or defe !e to t+e actio or t+e ta7i , of +i! propert/1 +e -a/ file a d !erve a otice of appeara ce a d a -a ife!tatio to t+at effect1 !pecificall/ de!i, ati , or ide tif/i , t+e propert/ i 0+ic+ +e clai-! to )e i tere!ted1 0it+i t+e ti-e !tated i t+e !u--o !. T+ereafter1 +e !+all )e e titled to otice of all proceedi ,! affecti , t+e !a-e. If a defe da t +a! a / o).ectio to t+e fili , of or t+e alle,atio ! i t+e co-plai t1 or a / o).ectio or defe !e to t+e ta7i , of +i! propert/1 +e !+all !erve +i! a !0er 0it+i t+e ti-e !tated i t+e !u--o !. T+e a !0er !+all !pecificall/ de!i, ate or ide tif/ t+e propert/ i 0+ic+ +e clai-! to +ave a i tere!t1 !tate t+e ature a d e8te t of t+e i tere!t clai-ed1 a d adduce all +i! o).ectio ! a d defe !e! to t+e ta7i , of +i! propert/. No cou terclai-1 cro!!%clai- or t+ird%part/ co-plai t !+all )e alle,ed or allo0ed i t+e a !0er or a / !u)!e4ue t pleadi ,. A defe da t 0aive! all defe !e! a d o).ectio ! ot !o alle,ed )ut t+e court1 i t+e i tere!t of .u!tice1 -a/ per-it a-e d-e t! to t+e a !0er to )e -ade ot later t+a te "'9( da/! fro- t+e fili , t+ereof. Do0ever1 at t+e trial of t+e i!!ue of .u!t co-pe !atio 1 0+et+er or ot a defe da t +a! previou!l/ appeared or a !0ered1 +e -a/ pre!e t evide ce a! to t+e a-ou t of t+e co-pe !atio to )e paid for +i! propert/1 a d +e -a/ !+are i t+e di!tri)utio of t+e a0ard. " (

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Special Civil Actions

22

I! a de!endant #a > 1) no o*.ection or de!en e to t#e action or t#e ta9in+ o! #i propert" : #e -a" !ile and er(e
.a a notice of appearance .b a manifestation to that effect .c specifically designating or identifying the property in which he claims to be interested .d within the time stated in the summons .e thereafter, he shall be entitled to notice of all proceedings affecting the same.

&) an" o*.ection to t#e !ilin+ o! or t#e alle+ation in t#e co-plaint, or an" o*.ection or de!en e to t#e ta9in+ o! #i propert" : #e #all
.a serve his answer within the time stated in the summons .b answer shall specifically designate or identify the property in which he claims to have an interest .c state the nature and e8tent of the interest claimed .d adduce all his ob,ections and defenses to the taking of his property .e .o counterclaim, cross'claim or third'party complaint shall be alleged or allowed in the answer or any subsequent pleading. .f A defendant waives all defenses and ob,ections not so alleged .g the court, in the interest of ,ustice, may permit amendments to the answer to be made not later than 1: days from the filing 0owever, at the trial of the issue of ,ust compensation, whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. Sec. 5. Order of expropriation. * If t+e o).ectio ! to a d t+e defe !e! a,ai !t t+e ri,+t of t+e plai tiff to e8propriate t+e propert/ are overruled1 or 0+e o part/ appear! to defe d a! re4uired )/ t+i! Rule1 t+e court -a/ i!!ue a order of e8propriatio declari , t+at t+e plai tiff +a! a la0ful ri,+t to ta7e t+e propert/ !ou,+t to )e e8propriated1 for t+e pu)lic u!e or purpo!e de!cri)ed i t+e co-plai t1 upo t+e pa/-e t of .u!t co-pe !atio to )e deter-i ed a! of t+e date of t+e ta7i , of t+e propert/ or t+e fili , of t+e co-plai t1 0+ic+ever ca-e fir!t. A fi al order !u!tai i , t+e ri,+t to e8propriate t+e propert/ -a/ )e appealed )/ a / part/ a,,rieved t+ere)/. Suc+ appeal1 +o0ever1 !+all ot preve t t+e court fro- deter-i i , t+e .u!t co-pe !atio to )e paid. After t+e re ditio of !uc+ a order1 t+e plai tiff !+all ot )e per-itted to di!-i!! or di!co ti ue t+e proceedi , e8cept o !uc+ ter-! a! t+e court dee-! .u!t a d e4uita)le. "5a(

I! t#e o*.ection to and t#e de!en e a+ain t t#e ri+#t o! t#e plainti!! to e$propriate t#e propert" are o(erruled, or 7#en no part" appear to de!end a required *" t#i Rule, t#e court -a" i ue an order o! e$propriation
.1 declaring that the plaintiff has property sought to be e8propriated a lawful right to take the

Special Civil Actions .2 for the public use or purpose described in the complaint

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23

.3 upon the payment of ,ust compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. A final order sustaining the right to e8propriate the property may be appealed by any party aggrieved thereby. ?uch appeal, however, shall not prevent the court from determining the ,ust compensation to be paid. After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding e8cept on such terms as the court deems ,ust and equitable. Sec. 6. Ascertainment of compensation. * 3po t+e re ditio of t+e order of e8propriatio 1 t+e court !+all appoi t ot -ore t+a t+ree "2( co-pete t a d di!i tere!ted per!o ! a! co--i!!io er! to a!certai a d report to t+e court t+e .u!t co-pe !atio for t+e propert/ !ou,+t to )e ta7e . T+e order of appoi t-e t !+all de!i, ate t+e ti-e a d place of t+e fir!t !e!!io of t+e +eari , to )e +eld )/ t+e co--i!!io er! a d !pecif/ t+e ti-e 0it+i 0+ic+ t+eir report !+all )e !u)-itted to t+e court. Copie! of t+e order !+all )e !erved o t+e partie!. O).ectio ! to t+e appoi t-e t of a / of t+e co--i!!io er! !+all )e filed 0it+ t+e court 0it+i te "'9( da/! fro- !ervice1 a d !+all )e re!olved 0it+i t+irt/ "29( da/! after all t+e co--i!!io er! !+all +ave received copie! of t+e o).ectio !. "6a( Co--i!!io er! are appoi ted o l/ if t+e partie! ca t+e .u!t co-pe !atio for t+e propert/ ot a,ree a! to

?pon t#e rendition o! t#e order o! e$propriation 3

.1 the court shall appoint not more than 3 competent and disinterested persons as commissioners to ascertain and report to the court the ,ust compensation for the property sought to be taken. .2 1he order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court. .3 6opies of the order shall be served on the parties. .4 Cb,ections to the appointment of any of the commissioners shall be filed with the court within 1: days from service, and shall be resolved within 3: days after all the commissioners shall have received copies of the ob,ections. Sec. #. Proceedings (y commissioners. * >efore e teri , upo t+e perfor-a ce of t+eir dutie!1 t+e co--i!!io er! !+all ta7e a d !u)!cri)e a oat+ t+at t+e/ 0ill fait+full/ perfor- t+eir dutie! a! co--i!!io er!1 0+ic+ oat+ !+all )e filed i court 0it+ t+e ot+er proceedi ,! i t+e ca!e. Evide ce -a/ )e i troduced )/ eit+er part/ )efore t+e co--i!!io er! 0+o are aut+oriBed to ad-i i!ter oat+! o +eari ,! )efore t+e-1 a d t+e co--i!!io er! !+all1 u le!! t+e partie! co !e t to t+e co trar/1 after due otice to t+e partie! to atte d1 vie0 a d e8a-i e t+e propert/ !ou,+t to )e e8propriated a d it! !urrou di ,!1 a d -a/ -ea!ure t+e !a-e1 after 0+ic+ eit+er part/ -a/1 )/ +i-!elf or cou !el1 ar,ue t+e ca!e. T+e co--i!!io er! !+all a!!e!! t+e co !e4ue tial da-a,e! to t+e propert/ ot ta7e a d deduct fro!uc+ co !e4ue tial da-a,e! t+e co !e4ue tial )e efit! to )e derived )/ t+e o0 er fro- t+e pu)lic u!e or purpo!e of t+e propert/ ta7e 1 t+e operatio of it! fra c+i!e )/ t+e corporatio or t+e carr/i , o

Special Civil Actions 24 of t+e )u!i e!! of t+e corporatio or per!o ta7i , t+e propert/. >ut i o ca!e !+all t+e co !e4ue tial )e efit! a!!e!!ed e8ceed t+e co !e4ue tial da-a,e! a!!e!!ed1 or t+e o0 er )e deprived of t+e actual value of +i! propert/ !o ta7e . "#a(

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4e!ore enterin+ upon t#e per!or-ance o! t#eir dutie

.1 the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners .2 such oath shall be filed in court with the other proceedings in the case. Dvidence may be introduced by either party before the commissioners who are authoriEed to administer oaths on hearings before them, and the commissioners shall, unless the parties consent to the contrary, after due notice to the parties to attend, view and e8amine the property sought to be e8propriated and its surroundings, and may measure the same, after which either party may, by himself or counsel, argue the case. 1he commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. 7ut in no case shall the consequential benefits assessed e8ceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. Sec. &. )eport (y commissioners and +udgment thereupon. * T+e court -a/ order t+e co--i!!io er! to report 0+e a / particular portio of t+e real e!tate !+all +ave )ee pa!!ed upo )/ t+e-1 a d -a/ re der .ud,-e t upo !uc+ partial report1 a d direct t+e co--i!!io er! to proceed 0it+ t+eir 0or7 a! to !u)!e4ue t portio ! of t+e propert/ !ou,+t to )e e8propriated1 a d -a/ fro- ti-e to ti-e !o deal 0it+ !uc+ propert/. T+e co--i!!io er! !+all -a7e a full a d accurate report to t+e court of all t+eir proceedi ,!1 a d !uc+ proceedi ,! !+all ot )e effectual u til t+e court !+all +ave accepted t+eir report a d re dered .ud,-e t i accorda ce 0it+ t+eir reco--e datio !. E8cept a! ot+er0i!e e8pre!!l/ ordered )/ t+e court1 !uc+ report !+all )e filed 0it+i !i8t/ "#9( da/! fro- t+e date t+e co--i!!io er! 0ere otified of t+eir appoi t-e t1 0+ic+ ti-e -a/ )e e8te ded i t+e di!cretio of t+e court. 3po t+e fili , of !uc+ report1 t+e cler7 of t+e court !+all !erve copie! t+ereof o all i tere!ted partie!1 0it+ otice t+at t+e/ are allo0ed te "'9( da/! 0it+i 0+ic+ to file o).ectio ! to t+e fi di ,! of t+e report1 if t+e/ !o de!ire. "&a( Sec. ?. Action upon commissioners/ report. * 3po t+e e8piratio of t+e period of te "'9( da/! referred to i t+e precedi , !ectio 1 or eve )efore t+e e8piratio of !uc+ period )ut after all t+e i tere!ted partie! +ave filed t+eir o).ectio ! to t+e report or t+eir !tate-e t of a,ree-e t t+ere0it+1 t+e court -a/1 after +eari ,1 accept t+e report a d re der .ud,-e t i accorda ce t+ere0it+: or1 for cau!e !+o0 1 it -a/ reco--it t+e !a-e to t+e co--i!!io er! for furt+er report of fact!: or it -a/ !et a!ide t+e report a d appoi t e0 co--i!!io er!: or it -a/ accept t+e report i part a d re.ect it i part: a d it -a/ -a7e !uc+ order or re der !uc+ .ud,-e t a! !+all !ecure to t+e plai tiff t+e propert/ e!!e tial to t+e e8erci!e of +i! ri,+t of e8propriatio 1 a d to t+e defe da t .u!t co-pe !atio for t+e propert/ !o ta7e . "?a(

Special Civil Actions 25 Sec. @. 0ncertain ownership* conflicting claims. * If t+e o0 er!+ip of t+e propert/ ta7e i! u certai 1 or t+ere are co flicti , clai-! to a / part t+ereof1 t+e court -a/ order a / !u- or !u-! a0arded a! co-pe !atio for t+e propert/ to )e paid to t+e court for t+e )e efit of t+e per!o ad.ud,ed i t+e !a-e proceedi , to )e e titled t+ereto. >ut t+e .ud,-e t !+all re4uire t+e pa/-e t of t+e !u- or !u-! a0arded to eit+er t+e defe da t or t+e court )efore t+e plai tiff ca e ter upo t+e propert/1 or retai it for t+e pu)lic u!e or purpo!e if e tr/ +a! alread/ )ee -ade. "@a( Sec. '9. )ights of plaintiff after +udgment and payment. * 3po pa/-e t )/ t+e plai tiff to t+e defe da t of t+e co-pe !atio fi8ed )/ t+e .ud,-e t1 0it+ le,al i tere!t t+ereo fro- t+e ta7i , of t+e po!!e!!io of t+e propert/1 or after te der to +i- of t+e a-ou t !o fi8ed a d pa/-e t of t+e co!t!1 t+e plai tiff !+all +ave t+e ri,+t to e ter upo t+e propert/ e8propriated a d to appropriate it for t+e pu)lic u!e or purpo!e defi ed i t+e .ud,-e t1 or to retai it !+ould +e +ave ta7e i--ediate po!!e!!io t+ereof u der t+e provi!io ! of !ectio $ +ereof. If t+e defe da t a d +i! cou !el a)!e t t+e-!elve! fro- t+e court1 or decli e to receive t+e a-ou t te dered1 t+e !a-e !+all )e ordered to )e depo!ited i court a d !uc+ depo!it !+all +ave t+e !a-e effect a! actual pa/-e t t+ereof to t+e defe da t or t+e per!o ulti-atel/ ad.ud,ed e titled t+ereto. "'9a( Sec. ''. 'ntry not delayed (y appeal* effect of re#ersal. * T+e ri,+t of t+e plai tiff to e ter upo t+e propert/ of t+e defe da t a d appropriate t+e !a-e for pu)lic u!e or purpo!e !+all ot )e dela/ed )/ a appeal fro- t+e .ud,-e t. >ut if t+e appellate court deter-i e! t+at plai tiff +a! o ri,+t of e8propriatio 1 .ud,-e t !+all )e re dered orderi , t+e Re,io al Trial Court to fort+0it+ e force t+e re!toratio to t+e defe da t of t+e po!!e!!io of t+e propert/1 a d to deter-i e t+e da-a,e! 0+ic+ t+e defe da t !u!tai ed a d -a/ recover )/ rea!o of t+e po!!e!!io ta7e )/ t+e plai tiff. "''a( .ote that entry may not be delayed by appeal. 1he remedy, in case of reversal on appeal, is to restore the defendant to possession plus damages. Sec. '$. $osts, (y whom paid. * T+e fee! of t+e co--i!!io er! !+all )e ta8ed a! a part of t+e co!t! of t+e proceedi ,!. All co!t!1 e8cept t+o!e of rival clai-a t! liti,ati , t+eir clai-!1 !+all )e paid )/ t+e plai tiff1 u le!! a appeal i! ta7e )/ t+e o0 er of t+e propert/ a d t+e .ud,-e t i! affir-ed1 i 0+ic+ eve t t+e co!t! of t+e appeal !+all )e paid )/ t+e o0 er. "'$a( Sec. '2. )ecording +udgment, and its effect. * T+e .ud,-e t e tered i e8propriatio proceedi ,! !+all !tate defi itel/1 )/ a ade4uate de!criptio 1 t+e particular propert/ or i tere!t t+erei e8propriated1 a d t+e ature of t+e pu)lic u!e or purpo!e for 0+ic+ it i! e8propriated. W+e real e!tate i! e8propriated1 a certified cop/ of !uc+ .ud,-e t !+all )e recorded i t+e re,i!tr/ of deed! of t+e place i 0+ic+ t+e propert/ i! !ituated1 a d it! effect !+all )e to ve!t i t+e plai tiff t+e title to t+e real e!tate !o de!cri)ed for !uc+ pu)lic u!e or purpo!e. "'2a( Sec. '5. Power of guardian in such proceedings. * T+e ,uardia or ,uardia ad lite- of a -i or or of a per!o .udiciall/ declared to )e i co-pete t -a/1 0it+ t+e approval of t+e court fir!t +ad1 do a d perfor- o )e+alf of +i! 0ard a / act1 -atter1 or t+i , re!pecti , t+e e8propriatio for pu)lic u!e or purpo!e of propert/ )elo ,i , to !uc+ -i or or per!o .udiciall/ declared to )e i co-pete t1 0+ic+

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Special Civil Actions 26 !uc+ -i or or per!o .udiciall/ declared to )e i co-pete t could do i !uc+ proceedi ,! if +e 0ere of a,e or co-pete t. "'5a(

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).Ca!e! 2Cit" o! 'anila () Arellano 6a7 Colle+e , 85 P#il 66% (195,)

=act!E 6ity of anila seeks to e8propriate land Aniversity for the purpose of reselling it to the poor. of Arellano

DeldE I e8propriatio 1 ece!!it/ for ta7i , doe! ot -ea a a)!olute )ut o l/ a rea!o a)le or practical ece!!it/1 !uc+ a! 0ould co-)i e t+e ,reate!t )e efit to t+e pu)lic 0it+ t+e lea!t i co ve ie ce a d e8pe !e to t+e co de- i , part/ a d propert/ o0 er co !i!te t 0it+ !uc+ )e efit. /n this case, necessity for the condemnation has not been shown. 1he land in question has cost the owner ;14:,:::. 1he people for whose benefit the condemnation is being undertaken are so poor they could ill afford to meet this high price, unless they intend to borrow the money with a view to disposing of the property later for a profit. 6heaper lands not dedicated to a purpose so worthy as a school and more suited to the occupantsF needs and means, if really they only want to own their own homes, are aplenty elsewhere. Cn the other hand, the defendant not only has invested a considerable amount for its property but had the plans for construction ready and would have completed the pro,ect a long time ago had it not been stopped by the city authorities. W+ile a +a dful of people !ta d to profit )/ t+e e8propriatio 1 t+e develop-e t of a u iver!it/ t+at +a! a pre!e t e roll-e t of @1999 !tude t! 0ould )e !acrificed. Any good that would accrue to the public from providing homes to a few families fades into insignificance in comparison with the preparation of young men and young women for useful citiEenship and for service to the government and the community, a task which the government alone is not in a position to undertake. Note3 1his case is authority for saying that public purpose alone is not enough to authoriEe e8propriation.

*EP%A v. Dula#, 149 SCRA %,5 (1987)

<u!t co-pe !atio i! t+e value of t+e propert/ at t+e ti-e of t+e ta7i , of t+e propert/1 or t+e fair a d full e4uivale t of t+e lo!! !u!tai ed. !etermination of ,ust compensation is a ,udicial function. D8ecutive and legislative departments may make the initial determination, but it can not be deemed final. Statute! t+at !ee7 to i-po!e ot+er0i!e1 or !ee7 to li-it .udicial Hdi!cretio I to deter-i i , 0+ic+ i! lo0er )et0ee t+e !et value! i! u co !titutio al. ;!1"33 is unconstitutional since the discretion in determination of ,ust compensation is provided for in the said decree, as evidenced in the phrase )whichever is lower-, thereby robbing the court of the e8clusive discretion to determine ,ust compensation. D;KA v. !ulay 14( ?69A 3:" *1(&%+ 23 1he ?an Antonio !evelopment 6orporation was the owner of a piece of land in Bapu'Bapu 6ity which the D;KA e8propriated in 1(%(. 1he commissioners appointed by the trial court recommended that the ?an Antonio !evelopment 6orp. be paid ;1".:: per square meter. D;KA filed a petition for certiorari, arguing that under ;! 1"33 the compensation should be the fair and current market value declared by the owner or the market value determined by the assessor, whichever is lower.

Special Civil Actions 27 0DB!3 1he method of ascertaining ,ust compensation under ;! 1"33 constitutes impermissible encroachment on ,udicial prerogatives. Although the court technically would still have the power to determine the ,ust compensation for the property, following the decree, its task would be relegated to simply stating the lower value of the property as declared either by the owner or the assessor. Gust compensation means the value of the property at the time of the taking. /t means a fair and full equivalent for the loss sustained. All the facts as to the condition of the property and its surroundings, its improvements and capabilities should be considered. /n this case, the ta8 declarations used as basis for the ,ust compensation were made long before the declaration of martial law when the land was much cheaper. 1o peg the value of the lots on the basis of those documents which are outdated would be arbitrary and confiscatory ?ource3 http3LLwww.shvoong.comLlaw'and'politicsL1%$%23:'case'digest' epEa'vs'dulayLHi8EE1ysei2ycm

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2'anila =lectric Co-pan" () Pineda, &,6 SCRA 196 (199&)

Appoi t-e t of 2 co--i!!io er! to a!certai .u!t co-pe !atio i! a -a dator/ re4uire-e t i e8propriatio . 1hough its findings may be disregarded by the court, it may only do so for valid reason. Trial 0it+ t+e aid of co--i!!io er! i! a !u)!ta tial ri,+t t+at -a/ ot )e do e a0a/ 0it+ capriciou!l/. oreover, where the commissioner5s report is disregarded, the court must make its own estimate of value from the competent evidence on record.

&.=oreclo!ure of Real E!tate Mort,a,e

E8tra%.udicial =oreclo!ure .o complaint is filed ortgagor has a ri,+t of rede-ptio for 1 year from registration of the sale ortgagee has to file a !eparate actio to recover a / deficie c/ 7uyer at public auction becomes absolute owner only after finality of an action for consolidation of ownership ortgagee is given a special power of attorney in the mortgage contract to foreclose the mortgaged property in case of default <udicial foreclo!ure 6omplaint is filed with the courts E4uit/ of rede-ptio o l/ *to pa/ t+e de)t+*(: to 12: days, and any time before confirmation of foreclosure sale+, unless right of redemption granted by law *e.g. bank'mortgagees+ ortagagee can -ove for deficie c/ .ud,-e t i t+e !a-e actio 7uyer at public auction becomes absolute owner only after confirmation of the sale

ortgagee need not be given a special power of attorney

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Special Civil Actions

28

a.E8tra.udicial =oreclo!ure "Act 2'26(

Sec. '. W+e a !ale i! -ade u der a !pecial po0er i !erted i or attac+ed to a / real%e!tate -ort,a,e +ereafter -ade a! !ecurit/ for t+e pa/-e t of -o e/ or t+e fulfill-e t of a / ot+er o)li,atio 1 t+e provi!io ! of t+e follo0i , electio !+all ,over a! to t+e -a er i 0+ic+ t+e !ale a d rede-ptio !+all )e effected1 0+et+er or ot provi!io for t+e !a-e i! -ade i t+e po0er. Note3 1he contract of mortgage should contain a stipulation where the mortgagor gives the mortgagee a special power of attorney to foreclose the property in case of default. Sec. $. Said !ale ca ot )e -ade le,all/ out!ide of t+e provi ce i 0+ic+ t+e propert/ !old i! !ituated: a d i ca!e t+e place 0it+i !aid provi ce i 0+ic+ t+e !ale i! to )e -ade i! !u).ect to !tipulatio 1 !uc+ !ale !+all )e -ade i !aid place or i t+e -u icipal )uildi , of t+e -u icipalit/ i 0+ic+ t+e propert/ or part t+ereof i! !ituated.

8enue o! e$tra.udicial !oreclo ure

.1 in province in which the mortgaged property is situated, and .2 in a place within the province .a by stipulation .b municipal building in which the property is situated )1 to be filed in th clerk of court Sec. 2. Notice !+all )e ,ive )/ po!ti , otice! of t+e !ale for ot le!! t+a t0e t/ da/! i at lea!t t+ree pu)lic place! of t+e -u icipalit/ or cit/ 0+ere t+e propert/ i! !ituated1 a d if !uc+ propert/ i! 0ort+ -ore t+a four +u dred pe!o!1 !uc+ otice !+all al!o )e pu)li!+ed o ce a 0ee7 for at lea!t t+ree co !ecutive 0ee7! i a e0!paper of ,e eral circulatio i t+e -u icipalit/ or cit/.

;otice in e$tra.udicial !oreclo ure

.1 posting for not less than 2: days in 3 public municipality or city where the property is situated places of the

.2 if property is worth more than ;4::, published once a week for at least 3 consecutive weeks in a newspaper of general circulation in the municipality or city Sec. 5. T+e !ale !+all )e -ade at pu)lic auctio 1 )et0ee t+e +our! of i e i t+e -or i , a d four i t+e after oo : a d !+all )e u der t+e directio of t+e !+eriff of t+e provi ce1 t+e .u!tice or au8iliar/ .u!tice of t+e peace of t+e -u icipalit/ i 0+ic+ !uc+ !ale +a! to )e -ade1 or a otar/ pu)lic of !aid -u icipalit/1 0+o !+all )e e titled to collect a fee of five pe!o! eac+ da/ of actual 0or7 perfor-ed1 i additio to +i! e8pe !e!. Sec. 6. At a / !ale1 t+e creditor1 tru!tee1 or ot+er per!o ! aut+oriBed to act for t+e creditor1 -a/ participate i t+e )iddi , a d purc+a!e u der t+e !a-e co ditio ! a! a / ot+er )idder1 u le!! t+e co trar/ +a! )ee e8pre!!l/ provided i t+e -ort,a,e or tru!t deed u der 0+ic+ t+e !ale i! -ade.

'anner o! ale in e$tra.udicial !oreclo ure

.1 at public auction .2 between ( a.m. to 4 p.m. .3 under the direction of

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Special Civil Actions .a the sheriff of the province .b the ,ustice or au8iliary ,ustice of the peace municipality in which such sale has to be made, or .c a notary public of said municipality of

29

the

.4 ?elling officer entitled to a fee of ;" each day of actual work performed, in addition to his e8penses. ." creditor, trustee, or other persons authoriEed to act for the creditor, may participate in the bidding and purchase, unless the contrary is stipulated Sec. #. I all ca!e! i 0+ic+ a e8tra.udicial !ale i! -ade u der t+e !pecial po0er +erei )efore referred to1 t+e de)tor1 +i! !ucce!!or! i i tere!t or a / .udicial creditor or .ud,-e t creditor of !aid de)tor1 or a / per!o +avi , a lie o t+e propert/ !u)!e4ue t to t+e -ort,a,e or deed of tru!t u der 0+ic+ t+e propert/ i! !old1 -a/ redee- t+e !a-e at a / ti-e 0it+i t+e ter- of o e /ear fro- a d after t+e date of t+e !ale: a d !uc+ rede-ptio !+all )e ,over ed )/ t+e provi!io ! of !ectio ! four +u dred a d !i8t/%four to four +u dred a d !i8t/%!i81 i clu!ive1 of t+e Code of Civil Procedure1 i !o far a! t+e!e are ot i co !i!te t 0it+ t+e provi!io ! of t+i! Act. 9edemption period is 1 year from date of sale. /f the 1 year redemption period has e8pired and the buyer has not asked for writ of possession, with more reason the buyer can still ask for issuance of a writ of possession after the lapse of the redemption period. Any rent collected will be deducted from the redemption price. Sec. &. I a / !ale -ade u der t+e provi!io ! of t+i! Act1 t+e purc+a!er -a/ petitio t+e Court of =ir!t I !ta ce of t+e provi ce or place 0+ere t+e propert/ or a / part t+ereof i! !ituated1 to ,ive +ipo!!e!!io t+ereof duri , t+e rede-ptio period1 fur i!+i , )o d i a a-ou t e4uivale t to t+e u!e of t+e propert/ for a period of t0elve -o t+!1 to i de- if/ t+e de)tor i ca!e it )e !+o0 t+at t+e !ale 0a! -ade 0it+out violati , t+e -ort,a,e or 0it+out co-pl/i , 0it+ t+e re4uire-e t! of t+i! Act. Suc+ petitio !+all )e -ade u der oat+ a d filed i for- of a e8 parte -otio i t+e re,i!tratio or cada!tral proceedi ,! if t+e propert/ i! re,i!tered1 or i !pecial proceedi ,! i t+e ca!e of propert/ re,i!tered u der t+e Mort,a,e La0 or u der !ectio o e +u dred a d i et/%four of t+e Ad-i i!trative Code1 or of a / ot+er real propert/ e cu-)ered 0it+ a -ort,a,e dul/ re,i!tered i t+e office of a / re,i!ter of deed! i accorda ce 0it+ a / e8i!ti , la01 a d i eac+ ca!e t+e cler7 of t+e court !+all1 upo t+e fili , of !uc+ petitio 1 collect t+e fee! !pecified i para,rap+ eleve of !ectio o e +u dred a d fourtee of Act Nu-)ered =our +u dred a d i et/%!i81 a! a-e ded )/ Act Nu-)ered T0e t/%ei,+t +u dred a d !i8t/%!i81 a d t+e court !+all1 upo approval of t+e )o d1 order t+at a 0rit of po!!e!!io i!!ue1 addre!!ed to t+e !+eriff of t+e provi ce i 0+ic+ t+e propert/ i! !ituated1 0+o !+all e8ecute !aid order i--ediatel/.

1or purc#a er to +ain po e ion o! t#e propert" durin+ t#e rede-ption period
.1 file petition to the 916 of the province property or any part thereof is situated .a under oath and .b filed in form of an e8 parte motion or place where the

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Special Civil Actions 30 +1 in the registration or cadastral proceedings if the property is registered, or +2 in special proceedings in the case of +a property registered under the ortgage Baw or +b property registered under ?ec. 1(4 of the Administrative 6ode, or of +c any other real property encumbered with a mortgage duly registered in the office of any 9o! in accordance with any e8isting law

.c clerk of the court collect the fees .2 furnish a bond in an amount equivalent to the use of the property for a period of 12 months, to indemnify the debtor in case it be shown that the sale was made without violating the mortgage or without complying with the requirements of this Act. 1he issuance of writ of possession to the auction buyer ministerial even if the mortgagor is questioning the auction sale. is

=rit of possession may be enforced against successors'in'interest, or even tenants of the mortgagor. 1he buyer may dispossess the tenant by e8press provision of the law. Sec. ?. T+e de)tor -a/1 i t+e proceedi ,! i 0+ic+ po!!e!!io 0a! re4ue!ted1 )ut ot later t+a t+irt/ da/! after t+e purc+a!er 0a! ,ive po!!e!!io 1 petitio t+at t+e !ale )e !et a!ide a d t+e 0rit of po!!e!!io ca celled1 !pecif/i , t+e da-a,e! !uffered )/ +i-1 )ecau!e t+e -ort,a,e 0a! ot violated or t+e !ale 0a! ot -ade i accorda ce 0it+ t+e provi!io ! +ereof1 a d t+e court !+all ta7e co, iBa ce of t+i! petitio i accorda ce 0it+ t+e !u--ar/ procedure provided for i !ectio o e +u dred a d t0elve of Act Nu-)ered =our +u dred a d i et/%!i8: a d if it fi d! t+e co-plai t of t+e de)tor .u!tified1 it !+all di!po!e i +i! favor of all or part of t+e )o d fur i!+ed )/ t+e per!o 0+o o)tai ed po!!e!!io . Eit+er of t+e partie! -a/ appeal fro- t+e order of t+e .ud,e i accorda ce 0it+ !ectio fourtee of Act Nu-)ered =our +u dred a d i et/%!i8: )ut t+e order of po!!e!!io !+all co ti ue i effect duri , t+e pe de c/ of t+e appeal.

Petition to et a ide ale and 7rit o! po e ion

.1 debtor files it in in the proceedings in which possession was requested .2 within 3: days after the purchaser was given possession .3 specifying the damages suffered by him .4 because the mortgage was not violated or the sale was not made in accordance with the provisions hereof ." governed by summary procedure .$ if the court finds the complaint of the debtor ,ustified, it shall dispose in his favor of all or part of the bond furnished by the person who obtained possession .% Dither of the parties may appeal, but the order of possession shall continue in effect during the pendency of the appeal. Sec. @. W+e t+e propert/ i! redee-ed after t+e purc+a!er +a! )ee ,ive po!!e!!io 1 t+e redee-er !+all )e e titled to deduct fro- t+e price of rede-ptio a / re tal! t+at !aid purc+a!er -a/ +ave collected i ca!e t+e propert/ or a / part t+ereof 0a! re ted: if t+e purc+a!er occupied t+e propert/ a! +i! o0 d0elli ,1 it )ei , to0 propert/1 or u!ed it ,ai full/1 it )ei , rural propert/1 t+e redee-er

Special Civil Actions 31 -a/ deduct fro- t+e price t+e i tere!t of o e per ce tu- per -o t+ provided for i !ectio four +u dred a d !i8t/%five of t+e Code of Civil Procedure.

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0#en t#e propert" i redee-ed a!ter t#e purc#a er #a *een +i(en po e ion
.1 the redeemer shall be entitled to deduct from the price of redemption any rentals that said purchaser may have collected in case the property or any part thereof was rented .2 the redeemer may deduct from the price the interest of one per centum per month if the purchaser .a occupied the property, or property as his own dwelling, it being town

.b used it gainfully, it being rural property

).Rule #? ;e eral Procedure i <udicial =oreclo!ure

Sectio '. $omplaint in action for foreclosure. * I a actio for t+e foreclo!ure of a -ort,a,e or ot+er e cu-)ra ce upo real e!tate1 t+e co-plai t !+all !et fort+ t+e date a d due e8ecutio of t+e -ort,a,e: it! a!!i, -e t!1 if a /: t+e a-e! a d re!ide ce! of t+e -ort,a,or a d t+e -ort,a,ee: a de!criptio of t+e -ort,a,ed propert/: a !tate-e t of t+e date of t+e ote or ot+er docu-e tar/ evide ce of t+e o)li,atio !ecured )/ t+e -ort,a,e1 t+e a-ou t clai-ed to )e u paid t+ereo : a d t+e a-e! a d re!ide ce! of all per!o ! +avi , or clai-i , a i tere!t i t+e propert/ !u)ordi ate i ri,+t to t+at of t+e +older of t+e -ort,a,e1 all of 0+o- !+all )e -ade defe da t! i t+e actio . "'a(

Content o! Co-plaint in action !or !oreclo ure

.1 date and due e8ecution of the mortgage, its assignments, if any .2 the names and residences of the mortgagor and the mortgagee .3 a description of the mortgaged property .4 a statement of the date of the note or other documentary evidence of the obligation secured by the mortgage ." the amount claimed to be unpaid thereon# and .$ the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action. Sec. $. -udgment on foreclosure for payment or sale. * If upo t+e trial i !uc+ actio t+e court !+all fi d t+e fact! !et fort+ i t+e co-plai t to )e true1 it !+all a!certai t+e a-ou t due to t+e plai tiff upo t+e -ort,a,e de)t or o)li,atio 1 i cludi , i tere!t a d ot+er c+ar,e! a! approved )/ t+e court1 a d co!t!1 a d !+all re der .ud,-e t for t+e !u- !o fou d due a d order t+at t+e !a-e )e paid to t+e court or to t+e .ud,-e t o)li,ee 0it+i a period of ot le!! t+a i et/ "@9( da/! or -ore t+a o e +u dred t0e t/ "'$9( da/! fro- t+e e tr/ of .ud,-e t1 a d t+at i default of !uc+ pa/-e t t+e propert/ !+all )e !old at pu)lic auctio to !ati!f/ t+e .ud,-e t. "$a(

m u k l o

Special Civil Actions

32

I! upon t#e trial in uc# action t#e court #all !ind t#e !act in t#e co-plaint to *e true, it #all

et !ort#

.1 ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, .2 render ,udgment for the sum so found due and .3 order that .a the due amount to be paid to the court or to the ,udgment obligee within a period of not less than (: days nor more than 12: days from the entry of ,udgment, and .b in default of such payment the property shall be sold at public auction to satisfy the ,udgment Sec. 2. Sale of mortgaged property* effect. * W+e t+e defe da t1 after )ei , directed to do !o a! provided i t+e e8t precedi , !ectio 1 fail! to pa/ t+e a-ou t of t+e .ud,-e t 0it+i t+e period !pecified t+erei 1 t+e court1 upo -otio 1 !+all order t+e propert/ to )e !old i t+e -a er a d u der t+e provi!io ! of Rule 2@ a d ot+er re,ulatio ! ,over i , !ale! of real e!tate u der e8ecutio . Suc+ !ale !+all ot affect t+e ri,+t! of per!o ! +oldi , prior e cu-)ra ce! upo t+e propert/ or a part t+ereof1 a d 0+e co fir-ed )/ a order of t+e court1 al!o upo -otio 1 it !+all operate to dive!t t+e ri,+t! i t+e propert/ of all t+e partie! to t+e actio a d to ve!t t+eir ri,+t! i t+e purc+a!er1 !u).ect to !uc+ ri,+t! of rede-ptio a! -a/ )e allo0ed )/ la0. 3po t+e fi alit/ of t+e order of co fir-atio or upo t+e e8piratio of t+e period of rede-ptio 0+e allo0ed )/ la01 t+e purc+a!er at t+e auctio !ale or la!t rede-ptio er1 if a /1 !+all )e e titled to t+e po!!e!!io of t+e propert/ u le!! a t+ird part/ i! actuall/ +oldi , t+e !a-e adver!el/ to t+e .ud,-e t o)li,or. T+e !aid purc+a!er or la!t rede-ptio er -a/ !ecure a 0rit of po!!e!!io 1 upo -otio 1 fro- t+e court 0+ic+ ordered t+e foreclo!ure. "2a( 1he plaintiff need not serve the motion to order foreclosure sale.

0#en t#e de!endant !ail to pa" t#e a-ount o! t#e .ud+-ent

.1 the court, upon motion, shall order the property to be sold on e8ecution .2 such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof .3 when confirmed by an order of the court, also upon motion *by the purchaser+, it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, sub,ect to such rights of redemption as may be allowed by law. .4 Apon the finality of the order of confirmation or upon the e8piration of the period of redemption when allowed by law, unless a 3rd party is actually holding the same adversely to the ,udgment obligor .a the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property .b the said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure.

Special Civil Actions 33 Sec. 5. Disposition of proceeds of sale. * T+e a-ou t realiBed frot+e foreclo!ure !ale of t+e -ort,a,ed propert/ !+all1 after deducti , t+e co!t! of t+e !ale1 )e paid to t+e per!o foreclo!i , t+e -ort,a,e1 a d 0+e t+ere !+all )e a / )ala ce or re!idue1 after pa/i , off t+e -ort,a,e de)t due1 t+e !a-e !+all )e paid to .u ior e cu-)ra cer! i t+e order of t+eir priorit/1 to )e a!certai ed )/ t+e court1 or if t+ere )e o !uc+ e cu-)ra cer! or t+ere )e a )ala ce or re!idue after pa/-e t to t+e-1 t+e to t+e -ort,a,or or +i! dul/ aut+oriBed a,e t1 or to t+e per!o e titled to it. "5a(

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@i po ition o! proceed o! ale a!ter deductin+ t#e co t o! t#e ale

.1 paid to the mortgagee .2 any balance or residue is paid to ,unior encumbrancers in the order of their priority, to be ascertained by the court, .3 if there be no such encumbrancers or there be a balance or residue after payment to them, then to the mortgagor or his duly authoriEed agent, or to the person entitled to it Sec. 6. 1ow sale to proceed in case the de(t is not all due. * If t+e de)t for 0+ic+ t+e -ort,a,e or e cu-)ra ce 0a! +eld i! ot all due a! provided i t+e .ud,-e t1 a! !oo a! a !ufficie t portio of t+e propert/ +a! )ee !old to pa/ t+e total a-ou t a d t+e co!t! due1 t+e !ale !+all ter-i ate: a d after0ard!1 a! ofte a! -ore )eco-e! due for pri cipal or i tere!t a d ot+er valid c+ar,e!1 t+e court -a/1 o -otio 1 order -ore to )e !old. >ut if t+e propert/ ca ot )e !old i portio ! 0it+out pre.udice to t+e partie!1 t+e 0+ole !+all )e ordered to )e !old i t+e fir!t i !ta ce1 a d t+e e tire de)t a d co!t! !+all )e paid1 if t+e proceed! of t+e !ale )e !ufficie t t+erefor1 t+ere )ei , a re)ate of i tere!t 0+ere !uc+ re)ate i! proper. "6a(

I! t#e de*t !or 7#ic# t#e -ort+a+e or encu-*rance 7a #eld i not all due a pro(ided in t#e .ud+-ent
.1 as soon as a sufficient portion of the property has been sold to pay the total amount and the costs due, the sale shall terminate# and .2 afterwards, as often as more becomes due for principal or interest and other valid charges, the court may, on motion, order more to be sold .3 if the property cannot be sold in portions without pre,udice to the parties .a the whole shall be ordered to be sold in the first instance .b the entire debt and costs shall be paid, if the proceeds of the sale be sufficient therefore .c there being a rebate of interest where such rebate is proper Sec. #. Deficiency +udgment. * If upo t+e !ale of a / real propert/ a! provided i t+e e8t precedi , !ectio t+ere )e a )ala ce due to t+e plai tiff after appl/i , t+e proceed! of t+e !ale1 t+e court1 upo -otio 1 !+all re der .ud,-e t a,ai !t t+e defe da t for a / !uc+ )ala ce for 0+ic+1 )/ t+e record of t+e ca!e1 +e -a/ )e per!o all/ lia)le to t+e plai tiff1 upo 0+ic+ e8ecutio -a/ i!!ue i--ediatel/ if t+e )ala ce i! all due at t+e ti-e of t+e re ditio of t+e .ud,-e t: ot+er0i!e1 t+e plai tiff !+all )e e titled to e8ecutio at !uc+ ti-e a! t+e )ala ce re-ai i , )eco-e! due u der t+e ter-! of t+e ori,i al co tract1 0+ic+ ti-e !+all )e !tated i t+e .ud,-e t. "#a(

m u k l o

Special Civil Actions

34

I! upon t#e ale o! an" real propert" t#ere *e a *alance due to t#e plainti!! a!ter appl"in+ t#e proceed o! t#e ale
.1 the court, upon motion, shall render ,udgment against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plaintiff .2 if the balance is .a all due at the time of the rendition of the ,udgment < e8ecution may issue immediately .b not all due at the time of the rendition of the ,udgment < the plaintiff shall be entitled to e8ecution at such time as the balance remaining becomes due, which time shall be stated in the ,udgment Sec. &. )egistration. * A certified cop/ of t+e fi al order of t+e court co fir-i , t+e !ale !+all )e re,i!tered i t+e re,i!tr/ of deed!. If o ri,+t of rede-ptio e8i!t!1 t+e certificate of title i t+e a-e of t+e -ort,a,or !+all )e ca celled1 a d a e0 o e i!!ued i t+e a-e of t+e purc+a!er. W+ere a ri,+t of rede-ptio e8i!t!1 t+e certificate of title i t+e a-e of t+e -ort,a,or !+all ot )e ca celled1 )ut t+e certificate of !ale a d t+e order co fir-i , t+e !ale !+all )e re,i!tered a d a )rief -e-ora du- t+ereof -ade )/ t+e re,i!trar of deed! upo t+e certificate of title. I t+e eve t t+e propert/ i! redee-ed1 t+e deed of rede-ptio !+all )e re,i!tered 0it+ t+e re,i!tr/ of deed!1 a d a )rief -e-ora du- t+ereof !+all )e -ade )/ t+e re,i!trar of deed! o !aid certificate of title. If t+e propert/ i! ot redee-ed1 t+e fi al deed of !ale e8ecuted )/ t+e !+eriff i favor of t+e purc+a!er at t+e foreclo!ure !ale !+all )e re,i!tered 0it+ t+e re,i!tr/ of deed!: 0+ereupo t+e certificate of title i t+e a-e of t+e -ort,a,or !+all )e ca celled a d a e0 o e i!!ued i t+e a-e of t+e purc+a!er. " (

A certi!ied cop" o! t#e !inal order o! t#e court con!ir-in+ t#e ale #all *e re+i tered in t#e re+i tr" o! deed )
.1 If o ri,+t of rede-ptio e8i!t! ' the title of the mortgagor is cancelled, and a new one for the purchaser is issued .2 W+ere a ri,+t of rede-ptio e8i!t! .a the title of the mortgagor shall not be cancelled, but the certificate of sale and the order confirming the sale shall be registered and a brief memorandum thereof made by the registrar of deeds upon the certificate of title. .b =here the property is +1 9edeemed < the deed of redemption shall be registered with the 9o!, and a brief memorandum thereof shall be made by the 9o! on said certificate of title. +2 not redeemed < the final deed of sale e8ecuted by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the 9o!# whereupon the title of the mortgagor is cancelled and a new one for the purchaser is issued Sec. ?. Applica(ility of other pro#isions. * T+e provi!io ! of !ectio ! 2'1 2$ a d 25 of Rule 2@ !+all )e applica)le to t+e .udicial foreclo!ure of real e!tate -ort,a,e! u der t+i! Rule i !ofar a! t+e for-er are ot i co !i!te t 0it+ or -a/ !erve to !upple-e t t+e provi!io ! of t+e latter. "?a(

Special Civil Actions cf 9ule 3(, ?ecs 31, 32, and 34

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35

?ec. 31. Manner of using remises ending redem tion" #aste restrained. M Antil the e8piration of the time allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by in,unction, on the application of the purchaser or the ,udgment obligee, with or without notice# but it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used# or to use it in the ordinary course of husbandry# or to make the necessary repairs to buildings thereon while he occupies the property. *33a+ ?ec. 32. $ents% earnings and income of ro erty ending redem tion. M 1he purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on e8ecution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the ,udgment obligor until the e8piration of his period of redemption. *34a+ ?ec. 34. $ecovery of rice if sale not effective" revival of judgment. M /f the purchaser of real property sold on e8ecution, or his successor in interest, fails to recover the possession thereof, or is evicted therefrom, in consequence of irregularities in the proceedings concerning the sale, or because the ,udgment has been reversed or set aside, or because the property sold was e8empt from e8ecution, or because a third person has vindicated his claim to the property, he may on motion in the same action or in a separate action recover from the ,udgment obligee the price paid, with interest, or so much thereof as has not been delivered to the ,udgment obligor# or he may, on motion, have the original ,udgment revived in his name for the whole price with interest, or so much thereof as has been delivered to the ,udgment obligor. 1he ,udgment so revived shall have the same force and effect as an original ,udgment would have as of the date of the revival and no more. *3$a+

!uring the redemption period, the court may restrain the commission of waste on the property by in,unction, on the application of the purchaser or the ,udgment obligee. All rents, earnings and income derived from the property pending redemption shall belong to the ,udgment obligor.

Purc#a er -a" on -otion reco(er !ro- t#e .ud+-ent o*li+ee t#e price paid, 7it# intere t, or o -uc# t#ereo! a #a not *een deli(ered to t#e .ud+-ent o*li+or, or #a(e t#e ori+inal .ud+-ent re(i(ed, i! #e
.1 fails to recover the possession .2 is evicted, because of .a irregularities in the proceedings concerning the sale, or .b the ,udgment has been reversed or set aside, or .c the property sold was e8empt from e8ecution, or .d a third person has vindicated his claim to the property

c.Ca!e! 2Re#a*ilitation 1inance Corporation () Alto Suret", 1,7 P#il %87 (196,)
=act!3 ;alma mortgaged his land in favor of 926. 1hereafter with the consent of 926, ;alma mortgaged the same property to Alto. 7oth mortgages were duly registered. 926 foreclosed without notifying Alto and was the highest bidder. 926 consolidates ownership but the mortgage of Alto was carried over the new title. 926 now seeks to have Alto5s mortgage lien cancelled.

Special Civil Actions 36 Deld3 /f the ,unior mortgagor was not notified of the foreclosure of the 1st mortgage, he can not be considered to have terminated or e8tinguished the rights of said ,unior encumbrancer over the property. An interest in the mortgaged property acquired subsequent to the *first+ mortgage may be divested or barred only by making the holder thereof a party to the proceedings to foreclose. Note3 Cther mortgagees who have superior lien need not be impleaded. 1he right of ,unior mortgagees who have not been impleaded is not lost by the foreclosure of the property. 1he ,unior mortgagee may redeem the property by paying the obligation of the mortagor to the foreclosing mortgagee. Gunior mortgagees are not indispensable parties, but it is advisable to implead them.

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*&i!lao v. Botones, 9, P#il &75 (1951)

=ACTSE 1arlac 62/ ruled in favor of plaintiff 1iglao and against defendant 7otones in a foreclosure case. Apon motion of 1iglao, 62/ issued a writ of e8ecution. ;rovincial ?heriff sold at public auction the mortgaged properties to 1iglao as highest bidder. 1iglao filed an e8%parte motion for confirmation of sale. 62/ approved the motion. 1iglao moved for issuance of writ of possession. 7otones opposed alleging inter alia that sale was not legally confirmed since he was not given notice on the motion for confirmation or its hearing. 62/ granted 1iglao5s motion for issuance of writ of possession. 7otones filed f9 which was denied. 7otones appealed. DELDE Prior to co fir-atio of t+e !ale1 a purc+a!er i a foreclo!ure !ale +a! o ri,+t to po!!e!!io . .either can the mortgagors compel the puchaser to pay prior to the confirmation of the foreclosure sale. Deari , i! re4uired )efore co fir-atio ca ta7e place. After foreclo!ure a d prior to co fir-atio 1 t+e -ort,a,or ca e8erci!e +i! e4uit/ of rede-ptio . !till

Notice a d +eari , of -otio for co fir-atio are e!!e tial to t+e validit/ of a order of co fir-atio of t+e foreclo!ure !ale. Note3 otion for foreclosure sale need not be served on the other party. /t is an e8'parte motion. Do0ever1 a -otio for co fir-atio of title -u!t )e !erved o t+e ot+er part/.

GSIS v. C'I o( Iloilo, 175 SCRA 19 (1989)

=ACTE 4?/? granted a real estate loan to spouses 7acaling for subdivision development. 1o secure the loan, the 7acalings e8ecuted a real estate mortgage on 4 lots owned by them. 7acalings failed to pay amortiEations. 4?/? filed with /loilo 62/ a complaint for ,udicial foreclosure. 62/ ruled in favor of 4?/? and ordered the 7acalings to pay. ?hould the 7acalings fail to pay wLin (:days, the 4 lots would be sold at public auction. rs. 7acaling failed to pay. was highest bidder. Bots were sold at public auction. 4?/?

4?/? filed motion for confirmation of sale. aria 1eresa /ntegrated !evt 6orp * 1/!6+, alleged assignee of the 7acaling5s right to redemption, filed a )motion to e8ercise right of redemption-. 62/ granted said motion. 0owever, 1/!6 check bounced. Cn 4?/?5s motion, 62/ declared null and void the 1/!6 redemption. 14yrs after, 1/!6 filed f9 and sought restoration of its right of redemption. 62/ granted said motion despite opposition from 4?/?. 4?/? appealed by certiorari.

Special Civil Actions 37 DELDE T+ere i! o ri,+t of rede-ptio fro- a .udicial foreclo!ure after co fir-atio 1 e8cept t+o!e ,ra ted i ca!e of -ort,a,ee! 0+o are )a 7! or )a 7i , i !titutio !. I .udicial foreclo!ure1 t+ere i! o l/ a e4uit/ of rede-ptio 0+ere t+e -or,a,or ca redee- 0it+i @9 da/! fro- fi alit/ of .ud,-e t1 a d a / ti-e )efore co fir-atio of foreclo!ure !ale. O l/ .udicial foreclo!ure of -ort,a,e! to )a 7i , i !titutio !1 a d t+o!e -ade e8tra.udiciall/ are !u).ect to le,al rede-ptio . ?ince 4?/? is not a bank or banking institution, its ,udicial foreclosure of the mortgage is not sub,ect to redemption after the foreclosure sale has been confirmed.

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Cruz v. IAC, 169 SCRA 9 (1989)

/n the absence of agreement, the (: day period *and any time prior to confirmation of foreclosure sale+ to e8ercise the equity of redemption has to be respected. E4uit/ of rede-ptio -a/ )e 0aived t+rou,+ a co-pro-i!e a,ree-e t.

)$o v. CA, &,% SCRA 16, (1991)

7oth during and after the redemption period, the purchaser is entitled to a writ of possession, regardless whether there is a pending suit for annulment of the mortgage or the foreclosure itself.

Ro*as v. CA, &&1 SCRA (199%)

=act!E 9o8as is the owner of a parcel of land. 1he land was mortgaged in favor of 9ural 7ank of !umalag. 1he mortgage was foreclosed and sold to 9ural 7ank of !umalag as the highest bidder, who was able to consolidate ownership after e8piration of the redemption period. 9o8as files a complaint for cancellation of foreclosure of mortgage and annulment of auction sale on the ground that the foreclosure did not comply with the requirement of giving written notices to all possible redemptioners. 1he 6ertificate of ;osting e8ecuted by the sheriff states that he posted 3 copies of the notice of public auction sale in 3 conspicuous public places in the municipality of ;anay, where the sub,ect land was situated and in like manner in 9o8as 6ity, where the public auction sale took place. 2urthermore, the notice was posted only in the unicipality, but not in the barrio where the property was located. DeldE Pu)licatio of otice of -ort,a,e foreclo!ure !ale! -u!t )e !trictl/ co-plied 0it+1 a d t+at a !li,+t deviatio t+erefro- 0ill i validate t+e otice a d re der t+e !ale voida)le. 2ailure to publish notice of auction sale as required by the statute constitutes a ,urisdictional defect which invalidates the sale. 1here was a failure to publish the notices of auction sale. Proof of pu)licatio !+all )e acco-pli!+ed )/ a !+eriff or officer co ducti , t+e foreclo!ure !ale. affidavit of t+e

/n this case, the sheriff e8ecuted a certificate of posting, which is not the affidavit required by law. An affidavit is a sworn statement in writing whereas a certificate is merely a statement in writing. ?trict compliance with the aforementioned provision is mandated. ?ubstantial compliance is not enough.

San +ose v. CA, &&5 SCRA 45, (199%)

2ailure to state the correct 161 number is fatal to the notice and the resulting foreclosure sale of mortgaged land. 6orrecting technical description does not cure the defect.

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38

I1C () Apo tol 177 SCRA (15 ep1989) 63%545%

=ACTSE spouses ;adilla bought on credit 3 /suEu trucks from /nd5l 1ransport Dquipment */1D+. ;adillas e8ecuted a ;ro.ote for the balance of the purchase price, securing payment by a chattel mortgage on said trucks and additional collateral or real estate mortgage on their property. /1D indorsed the note and assigned the real estate mortgage to /nd5l 2inance 6orp*/26+. ;adillas failed to pay several installments. /26 sued ;adilla in 9iEal 62/ for recovery of unpaid balance. 62/ ruled for /26 and ordered the ;adillas to pay. ?aid order was sustained on appeal to the 6A. ;rivate respondents spouses !elmendo *transferees of the mortgaged real property+ filed a complaint against /26 in the respondent 62/. 1hey sought the cancellation of the mortgage lien in the 161 and the delivery of the owner5s copy of said title considering that /26 has waived its rights over the mortgage when it instituted a personal action against the ;adillas. /26 moved for dismissal. !elmendos moved for summary ,udgment which 62/ granted. Apon denial of f9, /26 appealed to the ?6. ISS3EE =C. by filing a personal action for the recovery of debt secured by real estate mortgage, petitioner is deemed to have abandoned its mortgage lien on the property in question. DELDE ortgage creditor may elect to waive his security and bring, instead, an ordinary action to recover the indebtedness with the right to e8ecute a ,udgement thereon on all the properties of the debtor, including the sub,ect'matter of the mortgage, sub,ect to the qualification that if he fails in the remedy he chose, he cannot pursue further the remedy he has waived. 1hough the debt and the mortgage constitute separate agreements, the latter is subsidiary to the former, and both refer to one and the same obligation. 6onsequently, there e8ists only one cause of action for a single breach of that obligation. ;laintiff, then, by applying the rule above stated, cannot split up his single cause of action by filing a complaint for foreclosure of the mortgage. /f he does so, the filing of the first complaint will bar the subsequent complaint. 7y allowing the creditor to file two separate complaints simultaneously or successively, one to recover his credit and another to foreclose his mortgage, we will, in effect, be authoriEing him plural redress for a single breach of contract at so much cost to the courts and with so much ve8ation and oppression to the debtor.

?.Partitio a.Rule #@
Sectio '. $omplaint in action for partition of real estate. * A per!o +avi , t+e ri,+t to co-pel t+e partitio of real e!tate -a/ do !o a! provided i t+i! Rule1 !etti , fort+ i +i! co-plai t t+e ature a d e8te t of +i! title a d a ade4uate de!criptio of t+e real e!tate of 0+ic+ partitio i! de-a ded a d .oi i , a! defe da t! all ot+er per!o ! i tere!ted i t+e propert/. "'a(

Content o! t#e Co-plaint !or partition o! real e tate

.1 nature and e8tent of his title .2 an adequate description of the real estate of which partition is demanded .3 ,oining as defendants all other persons interested in the property.

Special Civil Actions 39 Sec. $. Order for partition, and partition (y agreement thereunder. * If after t+e trial t+e court fi d! t+at t+e plai tiff +a! t+e ri,+t t+ereto1 it !+all order t+e partitio of t+e real e!tate a-o , all t+e partie! i i tere!t. T+ereupo t+e partie! -a/1 if t+e/ are a)le to a,ree1 -a7e t+e partitio a-o , t+e-!elve! )/ proper i !tru-e t! of co ve/a ce1 a d t+e court !+all co fir- t+e partitio !o a,reed upo )/ all t+e partie!1 a d !uc+ partitio 1 to,et+er 0it+ t+e order of t+e court co fir-i , t+e !a-e1 !+all )e recorded i t+e re,i!tr/ of deed! of t+e place i 0+ic+ t+e propert/ i! !ituated. "$a( A fi al order decreei , partitio a / part/ a,,rieved t+ere)/. " ( a d accou ti , -a/ )e appealed )/

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cf ?pecial ;roceedings on e8tra',udicial partition of the estate /f after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the real estate among all the parties in interest. A final order decreeing partition and accounting may be appealed by any party aggrieved thereby.

8oluntar" partition
.1 parties agree to make the partition among themselves by proper instruments of conveyance .2 the court confirms the partition so agreed .3 partition, together with the order of the court confirming the same, recorded in the 9o! of the place in which the property is situated Sec. 2. $ommissioners to make partition when parties fail to agree. * If t+e partie! are u a)le to a,ree upo t+e partitio 1 t+e court !+all appoi t ot -ore t+a t+ree "2( co-pete t a d di!i tere!ted per!o ! a! co--i!!io er! to -a7e t+e partitio 1 co--a di , t+e- to !et off to t+e plai tiff a d to eac+ part/ i i tere!t !uc+ part a d proportio of t+e propert/ a! t+e court !+all direct. "2a( Sec. 5. Oath and duties of commissioners. * >efore -a7i , !uc+ partitio 1 t+e co--i!!io er! !+all ta7e a d !u)!cri)e a oat+ t+at t+e/ 0ill fait+full/ perfor- t+eir dutie! a! co--i!!io er!1 0+ic+ oat+ !+all )e filed i court 0it+ t+e ot+er proceedi ,! i t+e ca!e. I -a7i , t+e partitio 1 t+e co--i!!io er! !+all vie0 a d e8a-i e t+e real e!tate1 after due otice to t+e partie! to atte d at !uc+ vie0 a d e8a-i atio 1 a d !+all +ear t+e partie! a! to t+eir prefere ce i t+e portio of t+e propert/ to )e !et apart to t+e- a d t+e co-parative value t+ereof1 a d !+all !et apart t+e !a-e to t+e partie! i lot! or parcel! a! 0ill )e -o!t adva ta,eou! a d e4uita)le1 +avi , due re,ard to t+e i-prove-e t!1 !ituatio a d 4ualit/ of t+e differe t part! t+ereof. "5a( Sec. 6. Assignment or sale of real estate (y commissioners. * W+e it i! -ade to appear to t+e co--i!!io er! t+at t+e real e!tate1 or a portio t+ereof1 ca ot )e divided 0it+out pre.udice to t+e i tere!t! of t+e partie!1 t+e court -a/ order it a!!i, ed to o e of t+e partie! 0illi , to ta7e t+e !a-e1 provided +e pa/! to t+e ot+er partie! !uc+ a-ou t! a! t+e co--i!!io er! dee- e4uita)le1 u le!! o e of t+e i tere!ted partie! a!7! t+at t+e propert/ )e !old i !tead of )ei , !o a!!i, ed1 i 0+ic+ ca!e t+e court !+all order t+e co--i!!io er! to !ell t+e real e!tate at pu)lic !ale u der !uc+ co ditio ! a d 0it+i !uc+ ti-e a! t+e court -a/ deter-i e. "6a( Sec. #. )eport of commissioners* proceedings not (inding until confirmed. * T+e co--i!!io er! !+all -a7e a full a d accurate report to t+e court of all t+eir proceedi ,! a! to t+e partitio 1 or t+e a!!i, -e t of real e!tate to o e of t+e partie!1 or t+e !ale of t+e

Special Civil Actions 40 !a-e. 3po t+e fili , of !uc+ report1 t+e cler7 of court !+all !erve copie! t+ereof o all t+e i tere!ted partie! 0it+ otice t+at t+e/ are allo0ed te "'9( da/! 0it+i 0+ic+ to file o).ectio ! to t+e fi di ,! of t+e report1 if t+e/ !o de!ire. No proceedi , +ad )efore or co ducted )/ t+e co--i!!io er! !+all pa!! t+e title to t+e propert/ or )i d t+e partie! u til t+e court !+all +ave accepted t+e report of t+e co--i!!io er! a d re dered .ud,-e t t+ereo . "#a( Sec. &. Action of the court upon commissioners/ report. * 3po t+e e8piratio of t+e period of te "'9( da/! referred to i t+e precedi , !ectio 1 or eve )efore t+e e8piratio of !uc+ period )ut after t+e i tere!ted partie! +ave filed t+eir o).ectio ! to t+e report or t+eir !tate-e t of a,ree-e t t+ere0it+1 t+e court -a/1 upo +eari ,1 accept t+e report a d re der .ud,-e t i accorda ce t+ere0it+: or1 for cau!e !+o0 1 reco--it t+e !a-e to t+e co--i!!io er! for furt+er report of fact!: or !et a!ide t+e report a d appoi t e0 co--i!!io er!: or accept t+e report i part a d re.ect it i part: a d -a/ -a7e !uc+ order a d re der !uc+ .ud,-e t a! !+all effectuate a fair a d .u!t partitio of t+e real e!tate1 or of it! value1 if a!!i, ed or !old a! a)ove provided1 )et0ee t+e !everal o0 er! t+ereof. "&(

m u k l o

I! t#e partie are una*le to a+ree upon t#e partition

.1 the court shall appoint not more than 3 competent and disinterested persons as commissioners to make the partition .2 commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct .3 commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners. 1he oath shall be filed in court. .4 1he commissioners shall .a view and e8amine the real estate, after due notice parties to attend at such view and e8amination, and to the

.b hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof .c set apart the same to the parties in lots or parcels as will be most advantageous and equitable, having due regard to +1 the improvements +2 situation and +3 quality of the different parts ." =hen the real estate, or a portion thereof, cannot be divided without pre,udice to the interests of the parties, the court may order it .a assigned to one of the parties willing to take the same, provided he pays to the other parties such amounts as the commissioners deem equitable .b sold at public sale by interested parties so asks the commissioners, if one of the

.$ 1he commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties, or the sale of the same.

Special Civil Actions 41 .% Apon the filing of such report, the clerk of court shall serve copies thereof on all the interested parties with notice that they are allowed 1: days within which to file ob,ections to the findings of the report, if they so desire. .& Apon the e8piration of the period of 1: days, or even before the e8piration of such period but after the interested parties have filed their ob,ections to the report or their statement of agreement therewith, the court may, upon hearing .a accept the report and render ,udgment in accordance therewith# or .b for cause shown, recommit the same to the commissioners for further report of facts# or .c set aside the report and appoint new commissioners# or .d accept the report in part and re,ect it in part# and .e may make such order and render such ,udgment as shall effectuate a fair and ,ust partition of the real estate, or of its value .( .o proceeding had before or conducted by the commissioners shall pass the title to the property or bind the parties until the court shall have accepted the report of the commissioners and rendered ,udgment thereon. Sec. ?. Accounting for rent and profits in action for partition. * I a actio for partitio i accorda ce 0it+ t+i! Rule1 a part/ !+all recover fro- a ot+er +i! .u!t !+are of re t! a d profit! received )/ !uc+ ot+er part/ fro- t+e real e!tate i 4ue!tio 1 a d t+e .ud,-e t !+all i clude a allo0a ce for !uc+ re t! a d profit!. "?a( Sec. @. Power of guardian in such proceedings. * T+e ,uardia or ,uardia ad lite- of a -i or or per!o .udiciall/ declared to )e i co-pete t -a/1 0it+ t+e approval of t+e court fir!t +ad1 do a d perfor- o )e+alf of +i! 0ard a / act1 -atter1 or t+i , re!pecti , t+e partitio of real e!tate1 0+ic+ t+e -i or or per!o .udiciall/ declared to )e i co-pete t could do i partitio proceedi ,! if +e 0ere of a,e or co-pete t. "@a( Sec. '9. $osts and expenses to (e taxed and collected. * T+e court !+all e4uita)l/ ta8 a d apportio )et0ee or a-o , t+e partie! t+e co!t! a d e8pe !e! 0+ic+ accrue i t+e actio 1 i cludi , t+e co-pe !atio of t+e co--i!!io er!1 +avi , re,ard to t+e i tere!t! of t+e partie!1 a d e8ecutio -a/ i!!ue t+erefor a! i ot+er ca!e!. "'9a( Sec. ''. %he +udgment and its effect* copy to (e recorded in registry of deeds. * If actual partitio of propert/ i! -ade1 t+e .ud,-e t !+all !tate defi itel/1 )/ -ete! a d )ou d! a d ade4uate de!criptio 1 t+e particular portio of t+e real e!tate a!!i, ed to eac+ part/1 a d t+e effect of t+e .ud,-e t !+all )e to ve!t i eac+ part/ to t+e actio i !everalt/ t+e portio of t+e real e!tate a!!i, ed to +i-. If t+e 0+ole propert/ i! a!!i, ed to o e of t+e partie! upo +i! pa/i , to t+e ot+er! t+e !u- or !u-! ordered )/ t+e court1 t+e .ud,-e t !+all !tate t+e fact of !uc+ pa/-e t a d of t+e a!!i, -e t of t+e real e!tate to t+e part/ -a7i , t+e pa/-e t1 a d t+e effect of t+e .ud,-e t !+all )e to ve!t i t+e part/ -a7i , t+e pa/-e t t+e 0+ole of t+e real e!tate free fro- a / i tere!t o t+e part of t+e ot+er partie! to t+e actio . If t+e propert/ i! !old a d t+e !ale co fir-ed )/ t+e court1 t+e .ud,-e t !+all !tate t+e a-e of t+e purc+a!er or purc+a!er! a d a defi ite de!criptio of t+e parcel! of real e!tate !old to eac+ purc+a!er1 a d t+e effect of t+e .ud,-e t !+all )e to ve!t t+e real e!tate i t+e purc+a!er or purc+a!er! -a7i , t+e pa/-e t or pa/-e t!1 free fro- t+e clai-! of a / of t+e

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Special Civil Actions 42 partie! to t+e actio . A certified cop/ of t+e .ud,-e t !+all i eit+er ca!e )e recorded i t+e re,i!tr/ of deed! of t+e place i 0+ic+ t+e real e!tate i! !ituated1 a d t+e e8pe !e! of !uc+ recordi , !+all )e ta8ed a! part of t+e co!t! of t+e actio . "''a(

m u k l o

I! actual partition o! propert" i -ade

.1 the ,udgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party, the effect of the ,udgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to him. .2 /f the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court, the ,udgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment, and the effect of the ,udgment shall be to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action. .3 /f the property is sold and the sale confirmed by the court, the ,udgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser, and the effect of the ,udgment shall be to vest the real estate in the purchaser or purchasers making the payment or payments, free from the claims of any of the parties to the action. .4 A certified copy of the ,udgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated, and the e8penses of such recording shall be ta8ed as part of the costs of the action. Sec. '$. either paramount rights nor amica(le partition affected (y this )ule. * Not+i , i t+i! Rule co tai ed !+all )e co !trued !o a! to pre.udice1 defeat1 or de!tro/ t+e ri,+t or title of a / per!o clai-i , t+e real e!tate i volved )/ title u der a / ot+er per!o 1 or )/ title para-ou t to t+e title of t+e partie! a-o , 0+o- t+e partitio -a/ +ave )ee -ade: or !o a! to re!trict or preve t per!o ! +oldi , real e!tate .oi tl/ or i co--o fro- -a7i , a a-ica)le partitio t+ereof )/ a,ree-e t a d !uita)le i !tru-e t! of co ve/a ce 0it+out recour!e to a actio . "'$a( Sec. '2. Partition of personal property. * T+e provi!io ! of t+i! Rule !+all appl/ to partitio ! of e!tate! co-po!ed of per!o al propert/1 or of )ot+ real a d per!o al propert/1 i !o far a! t+e !a-e -a/ )e applica)le. "'2(

).Ca!e! Roque v. IAC, 165 SCRA 118 (1988)

An action for partition M which is typically brought by a person claiming to be co'owner of a specified property against a defendant or defendants whom the plaintiff recogniEes to be co'owners M may be seen to present simultaneously t0o pri cipal i!!ue!. =ir!t, there is the issue of whether the plaintiff is indeed a co'owner of the property sought to be partitioned. Seco d, assuming that the plaintiff successfully hurdles the first issue, there is the secondary issue of how the property is to be divided between plaintiff and defendant*s+ M i.e., what portion should go to which co'owner.

Special Civil Actions 43 ?hould the trial court find that the defendants do not dispute the status of the plaintiff as co'owner, the court can forthwith proceed to the actual partitioning of the property involved. /n case the defendants assert in their Answer e8clusive title in themselves adversely to the plaintiff, t+e court !+ould ot di!-i!! t+e plai tiffJ! actio for partitio )ut1 o t+e co trar/ a d i t+e e8erci!e of it! ,e eral .uri!dictio 1 re!olve t+e 4ue!tio of 0+et+er t+e plai tiff i! co%o0 er or ot. ?hould the trial court find that the plaintiff was unable to sustain his claimed status as co'owner, or that the defendants are or have become the sole and e8clusive owners of the property involved, t+e court 0ill ece!!aril/ +ave to di!-i!! t+e actio for partitio . 1his result would be reached, not because the wrong action was commenced by the plaintiff, but rather because the plaintiff having been unable to show co'ownership rights in himself, no basis e8ists for requiring the defendants to submit to partition the property at stake. /f, upon the other hand, the court after trial should find the e8istence of co'ownership among the parties litigant, the court may and should order the partition of the property in the same action. Gudgment for one or the other party being on the merits, the losing party may then appeal *by record on appeal because the case for partition will note be suspended and the records will be used in the trial court+ the same. /n either case, however, it is unnecessary to require the plaintiff to file another action, separate and independent from that for partition originally instituted, ,ust to determine who the co'owners are. 2unctionally, an action for partition may be seen to be at once an action for declaration of co'ownership and for segregation and conveyance of a determinate portion of the property involved. 2urthermore, no matter how long the co'ownership has lasted, a co' owner can always opt out of the co'ownership, and provided the defendant co'owners or co'heirs have theretofore e8pressly or impliedly recogniEed the co'ownership, they cannot set up as a defense the prescription of the action for partition. 7ut if the defendants show that they had previously asserted title in themselves adversely to the plaintiff and for the requisite period of time, the plaintiff5s right to require recognition of his status as a co'owner will have been lost by prescription and the court cannot issue an order requiring partition.

m u k l o

'a"ri a v. CA, 146 SCRA &5, (1986)

1he records of the case clearly reveal that the main purpose of the complaint is to determine who between the parties are the true owners and entitled to the e8clusive use of the disputed properties. =hile it is true that the complaint is one for partition, it is one which is premised on the resolution of the issue on the validity of the oral partition allegedly made in favor of defendants and the two deeds of conveyance e8ecuted in the names of the heirs of the deceased spouses. Anless this issue of ownership is definitely and finally resolved, it would be premature to effect a partition of the disputed properties. =hen the trial court rendered its ,udgment of partition in favor of the plaintiffs, re,ecting defendantsF claim of e8clusive ownership of the properties by previous oral partition, it rendered a final or definitive ,udgment on the merits from which the party adversely affected can make an appeal. 1he decision of the trial court declaring null the aforesaid conveyances and granting recovery of the properties for the purpose of ordering their partition is a definitive ,udgment because it decided the rights of the parties upon the issue submitted. /t was not, therefore, an interlocutory order. A

Special Civil Actions 44 ,udgment which grants recovery of the ownership and possession of property in favor of one party as against the adverse claim of title of the other is in effect a final ,udgment which is appealable. =here the primary purpose of a case is to ascertain and determine who, as between plaintiff and defendant, is the true owner and entitled to the e8clusive use of the disputed property, the ,udgment rendered by the lower court is a ,udgment on the merits as to those questions, and that the order for an accounting is merely incidental to such ,udgment.

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@.=orci)le E tr/ a d 3 la0ful Detai er a.Revi!ed Rule o ).Rule &9 General procedure in e.ect-ent ca e
.1 Ierified complaint filed with the 16 within 1 year from unlawful deprivation or withholding of possession .2 Answer within 1: days from receipt of summons .3 ;reliminary conference within 3: days from answer .4 6ourt issues preliminary conference order within " days. ." ;arties submit affidavits of witnesses, other evidences and position papers within 1: days from receipt of preliminary conference order .$ 6ourt renders ,udgment within 3: days from receipt of affidavits and position papers. Sectio '. Who may institute proceedings, and when. * Su).ect to t+e provi!io ! of t+e e8t !ucceedi , !ectio 1 a per!o deprived of t+e po!!e!!io of a / la d or )uildi , )/ force1 i ti-idatio 1 t+reat1 !trate,/1 or !tealt+1 or a le!!or1 ve dor1 ve dee1 or ot+er per!o a,ai !t 0+o- t+e po!!e!!io of a / la d or )uildi , i! u la0full/ 0it++eld after t+e e8piratio or ter-i atio of t+e ri,+t to +old po!!e!!io 1 )/ virtue of a / co tract1 e8pre!! or i-plied1 or t+e le,al repre!e tative! or a!!i, ! of a / !uc+ le!!or1 ve dor1 ve dee1 or ot+er per!o 1 -a/1 at a / ti-e 0it+i o e "'( /ear after !uc+ u la0ful deprivatio or 0it++oldi , of po!!e!!io 1 )ri , a actio i t+e proper Mu icipal Trial Court a,ai !t t+e per!o or per!o ! u la0full/ 0it++oldi , or deprivi , of po!!e!!io 1 or a / per!o or per!o ! clai-i , u der t+e-1 for t+e re!titutio of !uc+ po!!e!!io 1 to,et+er 0it+ da-a,e! a d co!t!. "'a(

Su--ar/ Procedure

cf 9evised 9ule on ?ummary ;rocedure under Crdinary 6ivil Actions, 9ule "

0#o -a" in titute proceedin+

( ection1 i !orci*le entr")

.1 a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or *2/?1?+ .2 a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the e8piration or termination of the right to hold possession, by virtue of any contract, or .3 the legal representatives or assigns of any such lessor, vendor, vendee, or other person W+e < at any time within 1 year after such unlawful deprivation or withholding of possession W+ere < before the 16

Special Civil Actions 45 Sec. $. "essor to proceed against lessee only after demand. * 3 le!! ot+er0i!e !tipulated1 !uc+ actio )/ t+e le!!or !+all )e co--e ced o l/ after de-a d to pa/ or co-pl/ 0it+ t+e co ditio ! of t+e lea!e AND to vacate i! -ade upo t+e le!!ee1 or )/ !ervi , 0ritte otice of !uc+ de-a d upo t+e per!o fou d o t+e pre-i!e!1 or )/ po!ti , !uc+ otice o t+e pre-i!e! if o per!o )e fou d t+ereo 1 a d t+e le!!ee fail! to co-pl/ t+ere0it+ after fiftee "'6( da/! i t+e ca!e of la d or five "6( da/! i t+e ca!e of )uildi ,!. "$a(

m u k l o

?nle ot#er7i e tipulated, an unla7!ul detainer action *" t#e le or #all *e co--enced onl" a!ter
.1 demand .a to pay or comply with the conditions of the lease and .b to vacate .2 made either .a upon the lessee, or .b by serving written premises, or notice of upon the person found on the

.c by posting such notice on the premises if no person be found thereon .3 and the lessee fails to comply within .a 1" days in the case of land or .b " days in the case of buildings Sec. 2. Summary procedure. * E8cept i ca!e! covered )/ t+e a,ricultural te a c/ la0! or 0+e t+e la0 ot+er0i!e e8pre!!l/ provide!1 all actio ! for forci)le e tr/ a d u la0ful detai er1 irre!pective of t+e a-ou t of da-a,e! or u paid re tal! !ou,+t to )e recovered1 !+all )e ,over ed )/ t+e !u--ar/ procedure +ereu der provided. " (

All e.ect-ent action , irre pecti(e o! t#e a-ount o! da-a+e or unpaid rental ou+#t to *e reco(ered, #all *e +o(erned *" t#e u--ar" procedure, e$cept in ca e
.1 covered by the agricultural tenancy laws or .2 when the law otherwise e8pressly provides Sec. 5. Pleadings allowed. * T+e o l/ pleadi ,! allo0ed to )e filed are t+e co-plai t1 co-pul!or/ cou terclai- a d cro!!%clai- pleaded i t+e a !0er1 a d t+e a !0er! t+ereto. All pleadi ,! !+all )e verified. "2a1 RSP(

Pleadin+ allo7ed to *e !iled

.1 complaint .2 compulsory counterclaim .3 answers .4 cross'claim pleaded in the answer All pleadings shall be verified. Sec. 6. Action on complaint. * T+e court -a/1 fro- a e8a-i atio of t+e alle,atio ! i t+e co-plai t a d !uc+ evide ce a! -a/ )e attac+ed t+ereto1 di!-i!! t+e ca!e outri,+t o a / of t+e ,rou d! for t+e di!-i!!al of a civil actio 0+ic+ are appare t t+erei . If o ,rou d for di!-i!!al i! fou d1 it !+all fort+0it+ i!!ue !u--o !. " (

m u k l o

Special Civil Actions

46

A#e court -a", !ro- an e$a-ination o! t#e alle+ation co-plaint and uc# e(idence a -a" *e attac#ed t#ereto

in t#e

.1 dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein, or .2 if no ground for dismissal is found, issue summons Sec. #. Answer. * Wit+i te "'9( da/! fro- !ervice of !u--o !1 t+e defe da t !+all file +i! a !0er to t+e co-plai t a d !erve a cop/ t+ereof o t+e plai tiff. Affir-ative a d e,ative defe !e! ot pleaded t+erei !+all )e dee-ed 0aived1 e8cept lac7 of .uri!dictio over t+e !u).ect -atter. Cro!!%clai-! a d co-pul!or/ cou terclai-! ot a!!erted i t+e a !0er !+all )e co !idered )arred. T+e a !0er to cou terclai-! or cro!!%clai-! !+all )e !erved a d filed 0it+i te "'9( da/! fro- !ervice of t+e a !0er i 0+ic+ t+e/ are pleaded. "61 RSP(

An 7er
.1 =ithin 1: days from service of summons .2 served a copy on the plaintiff .3 defenses not pleaded are waived, e8cept lack of ,urisdiction over the sub,ect matter .4 6ross'claims and compulsory counterclaims not asserted are barred. ." 1he answer to counterclaims or cross'claims shall be served and filed within 1: days from service of the answer in which they are pleaded. Sec. &. 'ffect of failure to answer. * S+ould t+e defe da t fail to a !0er t+e co-plai t 0it+i t+e period a)ove provided1 t+e court1 -otu proprio or o -otio of t+e plai tiff1 !+all re der .ud,-e t a! -a/ )e 0arra ted )/ t+e fact! alle,ed i t+e co-plai t a d li-ited to 0+at i! pra/ed for t+erei . T+e court -a/ i it! di!cretio reduce t+e a-ou t of da-a,e! a d attor e/F! fee! clai-ed for )ei , e8ce!!ive or ot+er0i!e u co !cio a)le1 0it+out pre.udice to t+e applica)ilit/ of !ectio 2 "c(1 Rule @ if t+ere are t0o or -ore defe da t!. "#1 RSP( cf Rule @1 Sec. 2 "c(
*c+ &ffect of artial common cause of action and the others fail to the answers thus filed 91&+ default.M =hen a pleading asserting a claim states a against several defending parties, some of whom answer do so, the court shall try the case against all upon and render ,udgment upon the evidence presented. *4a,

=!!ect o! !ailure to an 7er

.1 the court, motu proprio or on motion of the plaintiff, shall render ,udgment .a as may be warranted by the facts alleged in the complaint and .b limited to what is prayed for therein .2 1he court may in its discretion reduce the amount of damages and attorney5s fees claimed for being e8cessive or otherwise unconscionable Sec. ?. Preliminary conference* appearance of parties. * Not later t+a t+irt/ "29( da/! after t+e la!t a !0er i! filed1 a preli-i ar/ co fere ce !+all )e +eld. T+e provi!io ! of Rule '? o pre%trial !+all )e applica)le to t+e preli-i ar/ co fere ce u le!! i co !i!te t 0it+ t+e provi!io ! of t+i! Rule. T+e failure of t+e plai tiff to appear i t+e preli-i ar/ co fere ce !+all )e cau!e for t+e di!-i!!al of +i! co-plai t. T+e

Special Civil Actions 47 defe da t 0+o appear! i t+e a)!e ce of t+e plai tiff !+all )e e titled to .ud,-e t o +i! cou terclai- i accorda ce 0it+ t+e e8t precedi , !ectio . All cro!!%clai-! !+all )e di!-i!!ed. "&1 RSP( If a !ole defe da t !+all fail to appear1 t+e plai tiff !+all li7e0i!e )e e titled to .ud,-e t i accorda ce 0it+ t+e e8t precedi , !ectio . T+i! procedure !+all ot appl/ 0+ere o e of t0o or -ore defe da t! !ued u der a co--o cau!e of actio 0+o +ad pleaded a co--o defe !e !+all appear at t+e preli-i ar/ co fere ce. No po!tpo e-e t of t+e preli-i ar/ co fere ce !+all )e ,ra ted e8cept for +i,+l/ -eritoriou! ,rou d! a d 0it+out pre.udice to !uc+ !a ctio ! a! t+e court i t+e e8erci!e of !ou d di!cretio -a/ i-po!e o t+e -ova t. " ( =ithin 3: days after the conference shall be held. last answer is filed, a preliminary

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=!!ect o! !ailure to appear in t#e preli-inar" con!erence *" t#e

.1 plai tiff < dismissal of his complaint# appearing defendant entitled to ,udgment on his counterclaim# all cross'claims shall be dismissed. .2 !ole defe da t < plaintiff entitled to ,udgment on his complaint .3 o e of -ultiple defe da t! !ued u der a co--o +ad pleaded a co--o defe !e < case continues cau!e of actio 0+o

.o postponement of the preliminary conference shall be granted e8cept for highly meritorious grounds and without pre,udice to such sanctions as the court in the e8ercise of sound discretion may impose on the movant. Sec. @. )ecord of preliminary conference. * Wit+i five "6( da/! after t+e ter-i atio of t+e preli-i ar/ co fere ce1 t+e court !+all i!!ue a order !tati , t+e -atter! ta7e up t+erei 1 i cludi , )ut ot li-ited toE 2. W+et+er t+e partie! +ave arrived at a a d if !o1 t+e ter-! t+ereof: a-ica)le !ettle-e t1

5. T+e !tipulatio ! or ad-i!!io ! e tered i to )/ t+e partie!: 6. W+et+er1 o t+e )a!i! of t+e pleadi ,! a d t+e !tipulatio ! a d ad-i!!io ! -ade )/ t+e partie!1 .ud,-e t -a/ )e re dered 0it+out t+e eed of furt+er proceedi ,!1 i 0+ic+ eve t t+e .ud,-e t !+all )e re dered 0it+i t+irt/ "29( da/! froi!!ua ce of t+e order: #. A clear !pecificatio co troverted: a d of -aterial fact! 0+ic+ re-ai of t+e

&. Suc+ ot+er -atter! i te ded to e8pedite t+e di!po!itio ca!e. "?1 RSP(

=ithin " days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein. Sec. '9. Su(mission of affida#its and position papers. * Wit+i te "'9( da/! fro- receipt of t+e order -e tio ed i t+e e8t precedi , !ectio 1 t+e partie! !+all !u)-it t+e affidavit! of t+eir 0it e!!e! a d ot+er evide ce o t+e factual i!!ue! defi ed i t+e order1 to,et+er 0it+ t+eir po!itio paper! !etti , fort+ t+e la0 a d t+e fact! relied upo )/ t+e-. "@1 RSP(

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Special Civil Actions

48

0it#in 1, da" !ro- receipt o! t#e preli-inar" con!erence order, t#e partie #all u*-it
.1 the affidavits of their witnesses .2 other evidence on the factual issues defined in the order .3 their position papers setting forth the law and the facts relied upon by them. Sec. ''. Period for rendition of +udgment. * Wit+i t+irt/ "29( da/! after receipt of t+e affidavit! a d po!itio paper!1 or t+e e8piratio of t+e period for fili , t+e !a-e1 t+e court !+all re der .ud,-e t. Do0ever1 !+ould t+e court fi d it ece!!ar/ to clarif/ certai -aterial fact!1 it -a/1 duri , t+e !aid period1 i!!ue a order !pecif/i , t+e -atter! to )e clarified1 a d re4uire t+e partie! to !u)-it affidavit! or ot+er evide ce o t+e !aid -atter! 0it+i te "'9( da/! fro- receipt of !aid order. <ud,-e t !+all )e re dered 0it+i fiftee "'6( da/! after t+e receipt of t+e la!t affidavit or t+e e8piratio of t+e period for fili , t+e !a-e. T+e court !+all ot re!ort to t+e fore,oi , procedure .u!t to ,ai ti-e for t+e re ditio of t+e .ud,-e t. " ( =ithin 3: days after receipt of the affidavits and position papers, or the e8piration of the period for filing the same, the court shall render ,udgment. 0owever, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters within 1: days from receipt of said order. Gudgment shall be rendered within 1" days after the receipt of the last affidavit or the e8piration of the period for filing the same. 1he court shall not resort to the foregoing procedure ,ust to gain time for the rendition of the ,udgment. Sec. '$. )eferral for conciliation. * Ca!e! re4uiri , referral for co ciliatio 1 0+ere t+ere i! o !+o0i , of co-plia ce 0it+ !uc+ re4uire-e t1 !+all )e di!-i!!ed 0it+out pre.udice1 a d -a/ )e revived o l/ after t+at re4uire-e t !+all +ave )ee co-plied 0it+. "'?a1 RSP( =here there was no N7 proceedings when required, the e,ectment case shall be dismissed without pre,udice. Sec. '2. Prohi(ited pleadings and motions. * petitio !1 -otio !1 or pleadi ,! !+all ot )e allo0edE T+e follo0i ,

'. Motio to di!-i!! t+e co-plai t e8cept o t+e ,rou d of lac7 of .uri!dictio over t+e !u).ect -atter1 or failure to co-pl/ 0it+ !ectio '$: $. Motio for a )ill of particular!: of a .ud,-e t1 2. Motio for e0 trial1 or for reco !ideratio or for reope i , of trial: 5. Petitio for relief fro- .ud,-e t: of ti-e to file pleadi ,!1 affidavit! or 6. Motio for e8te !io a / ot+er paper: #. Me-ora da: &. Petitio for certiorari1 -a da-u!1 or pro+i)itio i terlocutor/ order i!!ued )/ t+e court: a,ai !t a /

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?. Motio '9. Repl/:

Special Civil Actions to declare t+e defe da t i

49

default:

@. Dilator/ -otio ! for po!tpo e-e t: ''. T+ird%part/ co-plai t!: '$. I terve tio !. "'@a1 RSP(

Pro#i*ited pleadin+ and -otion

.1 1! .2 otion for a bill of particulars# .3 .1, or f9, or motion for reopening of trial# .4 ;etition for relief from ,udgment# ." otion for e8tension .$ emoranda# .% ;etition for certiorari, mandamus, or interlocutory order issued by the court# .( !ilatory motions for postponement# .1: .11 .12 9eply# 3rd party complaints# /nterventions prohibition against any

.& otion to declare the defendant in default#

GR> 't@ not allo7ed

=$ception> Bn +round o!

.1 lack of ,urisdiction over sub,ect matter .2 failure to resort to required conciliation proceedings Sec. '5. Affida#its. * T+e affidavit! re4uired to )e !u)-itted u der t+i! Rule !+all !tate o l/ fact! of direct per!o al 7 o0led,e of t+e affia t! 0+ic+ are ad-i!!i)le i evide ce1 a d !+all !+o0 t+eir co-pete ce to te!tif/ to t+e -atter! !tated t+erei . A violatio of t+i! re4uire-e t -a/ !u).ect t+e part/ or t+e cou !el 0+o !u)-it! t+e !a-e to di!cipli ar/ actio 1 a d !+all )e cau!e to e8pu ,e t+e i ad-i!!i)le affidavit or portio t+ereof frot+e record. "$91 RSP(

A#e a!!ida(it required to *e u*-itted under t#i Rule #all

.1 state only facts of direct personal knowledge of the affiants which are admissible in evidence, and .2 show their competence to testify to the matters stated therein. Sec. '6. Preliminary in+unction. * T+e court -a/ ,ra t preli-i ar/ i .u ctio 1 i accorda ce 0it+ t+e provi!io ! of Rule 6? +ereof1 to preve t t+e defe da t fro- co--itti , furt+er act! of di!po!!e!!io a,ai !t t+e plai tiff. A po!!e!!or deprived of +i! po!!e!!io t+rou,+ forci)le e tr/ or u la0ful detai er -a/1 0it+i five "6( da/! fro- t+e fili , of t+e co-plai t1 pre!e t a -otio i t+e actio for forci)le e tr/ or u la0ful detai er for t+e i!!ua ce of a 0rit of preli-i ar/ -a dator/ i .u ctio to re!tore +i- i +i! po!!e!!io . T+e court !+all decide t+e -otio 0it+i t+irt/ "29( da/! fro- t+e fili , t+ereof. "2a( 1he court may grant preliminary in,unction to prevent the defendant from committing further acts of dispossession against the plaintiff.

Special Civil Actions 50 A possessor deprived of his possession through forcible entry or unlawful detainer may, within " days from the filing of the complaint, ask for preliminary mandatory in,unction in the e,ectment action to restore him in his possession. 1he court shall decide the motion within 3: days from the filing thereof. .ote that the court e,ectment cases. may now grant preliminary in,unction in all

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Sec. '#. )esol#ing defense of ownership. * W+e t+e defe da t rai!e! t+e defe !e of o0 er!+ip i +i! pleadi ,! a d t+e 4ue!tio of po!!e!!io ca ot )e re!olved 0it+out decidi , t+e i!!ue of o0 er!+ip1 t+e i!!ue of o0 er!+ip !+all )e re!olved o l/ to deter-i e t+e i!!ue of po!!e!!io . "5a( 1he 16 can determine ownership only provisionally. Sec. '&. -udgment. * If after trial t+e court fi d! t+at t+e alle,atio ! of t+e co-plai t are true1 it !+all re der .ud,-e t i favor of t+e plai tiff for t+e re!titutio of t+e pre-i!e!1 t+e !u.u!tl/ due a! arrear! of re t or a! rea!o a)le co-pe !atio for t+e u!e a d occupatio of t+e pre-i!e!1 attor e/F! fee! a d co!t!. If it fi d! t+at !aid alle,atio ! are ot true1 it !+all re der .ud,-e t for t+e defe da t to recover +i! co!t!. If a cou terclai- i! e!ta)li!+ed1 t+e court !+all re der .ud,-e t for t+e !u- fou d i arrear! fro- eit+er part/ a d a0ard co!t! a! .u!tice re4uire!. "#a(

I! a!ter trial t#e court !ind t#at t#e alle+ation o! t#e co-plaint are true, it #all render .ud+-ent in !a(or o! t#e plainti!! !or
.1 the restitution of the premises .2 the sum ,ustly due as .a arrears of rent or .b reasonable premises compensation for the use and occupation of the

.3 attorney5s fees and costs /f it finds that said allegations are not true, it shall render ,udgment for the defendant to recover his costs. /f a counterclaim is established, the court shall render ,udgment for the sum found in arrears from either party and award costs as ,ustice requires. Sec. '?. -udgment conclusi#e only on possession* not conclusi#e in actions in#ol#ing title or ownership. * T+e .ud,-e t re dered i a actio for forci)le e tr/ or detai er !+all )e co clu!ive 0it+ re!pect to t+e po!!e!!io o l/ a d !+all i o 0i!e )i d t+e title or affect t+e o0 er!+ip of t+e la d or )uildi ,. Suc+ .ud,-e t !+all ot )ar a actio )et0ee t+e !a-e partie! re!pecti , title to t+e la d or )uildi ,. T+e .ud,-e t or fi al order !+all )e appeala)le to t+e appropriate Re,io al Trial Court 0+ic+ !+all decide t+e !a-e o t+e )a!i! of t+e e tire record of t+e proceedi ,! +ad i t+e court of ori,i a d !uc+ -e-ora da a dGor )rief! a! -a/ )e !u)-itted )/ t+e partie! or re4uired )/ t+e Re,io al Trial Court. "&a( Sec. '@. 2mmediate execution of +udgment* how to stay same. * If .ud,-e t i! re dered a,ai !t t+e defe da t1 e8ecutio !+all i!!ue i--ediatel/ upo -otio 1 u le!! a appeal +a! )ee perfected a d t+e defe da t to !ta/ e8ecutio file! a !ufficie t !uper!edea! )o d1 approved )/ t+e Mu icipal Trial Court a d e8ecuted i favor of t+e plai tiff to pa/ t+e re t!1 da-a,e!1 a d co!t! accrui , do0 to t+e

Special Civil Actions 51 ti-e of t+e .ud,-e t appealed fro-1 a d u le!!1 duri , t+e pe de c/ of t+e appeal1 +e depo!it! 0it+ t+e appellate court t+e a-ou t of re t due fro- ti-e to ti-e u der t+e co tract1 if a /1 a! deter-i ed )/ t+e .ud,-e t of t+e Mu icipal Trial Court. I t+e a)!e ce of a co tract1 +e !+all depo!it 0it+ t+e Re,io al Trial Court t+e rea!o a)le value of t+e u!e a d occupatio of t+e pre-i!e! for t+e precedi , -o t+ or period at t+e rate deter-i ed )/ t+e .ud,-e t of t+e lo0er court o or )efore t+e te t+ da/ of eac+ !ucceedi , -o t+ or period. T+e !uper!edea! )o d !+all )e tra !-itted )/ t+e Mu icipal Trial Court1 0it+ t+e ot+er paper!1 to t+e cler7 of t+e Re,io al Trial Court to 0+ic+ t+e actio i! appealed. All a-ou t! !o paid to t+e appellate court !+all )e depo!ited 0it+ !aid court or aut+oriBed ,over -e t depo!itar/ )a 71 a d !+all )e +eld t+ere u til t+e fi al di!po!itio of t+e appeal1 u le!! t+e court1 )/ a,ree-e t of t+e i tere!ted partie!1 or i t+e a)!e ce of rea!o a)le ,rou d! of oppo!itio to a -otio to 0it+dra01 or for .u!tifia)le rea!o !1 !+all decree ot+er0i!e. S+ould t+e defe da t fail to -a7e t+e pa/-e t! a)ove pre!cri)ed fro- ti-e to ti-e duri , t+e pe de c/ of t+e appeal1 t+e appellate court1 upo -otio of t+e plai tiff1 a d upo proof of !uc+ failure1 !+all order t+e e8ecutio of t+e .ud,-e t appealed fro- 0it+ re!pect to t+e re!toratio of po!!e!!io 1 )ut !uc+ e8ecutio !+all ot )e a )ar to t+e appeal ta7i , it! cour!e u til t+e fi al di!po!itio t+ereof o t+e -erit!. After t+e ca!e i! decided )/ t+e Re,io al Trial Court1 a / -o e/ paid to t+e court )/ t+e defe da t for purpo!e! of t+e !ta/ of e8ecutio !+all )e di!po!ed of i accorda ce 0it+ t+e provi!io ! of t+e .ud,-e t of t+e Re,io al Trial Court. I a / ca!e 0+erei it appear! t+at t+e defe da t +a! )ee deprived of t+e la0ful po!!e!!io of la d or )uildi , pe di , t+e appeal )/ virtue of t+e e8ecutio of t+e .ud,-e t of t+e Mu icipal Trial Court1 da-a,e! for !uc+ deprivatio of po!!e!!io a d re!toratio of po!!e!!io -a/ )e allo0ed t+e defe da t i t+e .ud,-e t of t+e Re,io al Trial Court di!po!i , of t+e appeal. "?a(

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Requi ite !or ta" e$ecution (a+ain t de!endant) pendin+ appeal

.1 perfection of appeal .2 filing a supersedeas bond for payments of accrued rents, damages and costs .3 deposit of accruing rent from time to time ;etition for review to the 6A does not stay e8ecution, even if the petitioner files a supersedeas bond. .ote that ?ection 21 of this 9ule states that ,udgments of the 916 are immediately e8ecutory.

I! .ud+-ent i rendered +rantin+ e.ect-ent, e$ecution #all i ue i--ediatel" upon -otion, unle
.1 an appeal has been perfected and .2 the defendant to stay e8ecution files a sufficient supersedeas bond .a approved by the unicipal 1rial 6ourt and .b e8ecuted in favor of the plaintiff to pay the rents, damages, and costs accruing down to the time of the ,udgment appealed from .c 1he supersedeas bond shall be transmitted by the 16, with the other papers, to the clerk of the 916 to which the action is appealed. .3 and, during the pendency of the appeal, he deposits appellate court the amount of rent due from time to time with the

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Special Civil Actions 52 .a under the contract, if any, as determined by the ,udgment of the 16 .b /n the absence of a contract, he shall deposit with the 916 the reasonable value of the use and occupation of the premises for the preceding month or period at the rate determined by the ,udgment of the lower court on or before the 1:th day of each succeeding month or period. .c All amounts so paid to the appellate court shall be deposited with said court or authoriEed government depositary bank, and shall be held there until the final disposition of the appeal, unless the court shall decree otherwise +1 by agreement of the interested parties, or +2 in the absence of reasonable grounds of opposition to a motion to withdraw, or +3 for ,ustifiable reasons .d ?hould the defendant fail to make the payments above prescribed from time to time during the pendency of the appeal, the appellate court shall order the e8ecution of the ,udgment appealed from with respect to the restoration of possession *but such e8ecution shall not be a bar to the appeal taking its course until the final disposition thereof on the merits+ +1 upon motion of the plaintiff, and +2 upon proof of such failure .e After the case is decided by the 916, any money paid to the court by the defendant for purposes of the stay of e8ecution shall be disposed of in accordance with the provisions of the ,udgment of the 916. .f /n any case wherein it appears that the defendant has been deprived of the lawful possession of land or building pending the appeal by virtue of the e8ecution of the ,udgment of the 16, damages for such deprivation of possession and restoration of possession may be allowed the defendant in the ,udgment of the 916 disposing of the appeal.

Sec. $9. Preliminary mandatory in+unction in case of appeal. * 3po -otio of t+e plai tiff1 0it+i te "'9( da/! fro- t+e perfectio of t+e appeal to t+e Re,io al Trial Court1 t+e latter -a/ i!!ue a 0rit of preli-i ar/ -a dator/ i .u ctio to re!tore t+e plai tiff i po!!e!!io if t+e court i! !ati!fied t+at t+e defe da tF! appeal i! frivolou! or dilator/1 or t+at t+e appeal of t+e plai tiff i! pri-a facie -eritoriou!. "@a(

Ground !or re toration *" t#e RAC o! po e ion to t#e plainti!! pendin+ appeal *e!ore t#e RAC
.1 defendant5s appeal is frivolous or dilatory, or .2 appeal of the plaintiff is prima facie meritorious. Sec. Supreme defe da furt+er $'. 2mmediate execution $ourt. * T+e .ud,-e t of t !+all )e i--ediatel/ appeal t+at -a/ )e ta7e on appeal to $ourt of Appeals or t+e Re,io al Trial Court a,ai !t t+e e8ecutor/1 0it+out pre.udice to a t+erefro-. "'9a(

1he ,udgment of the 916 against the defendant shall be immediately e8ecutory even pending appeal. Note3 / think this is still sub,ect to the power of the appellate court to order stay of e8ecution.

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c.Ca!e!

Special Civil Actions

53

'ran el Realt# v. CA, &5& SCRA 1&7 (1996)

/f resolution of an unlawful detainer case requires determination of rights and obligations under of parties in a sale of real estate under ;! ("%, the case is e8clusively cogniEable by the 0BA97, not the 16.

+avier v. Veridiano II, &%7 SCRA 565 (1994)

D,ectment has a different cause of action from accion reivindicatoria *recovery of land+, or even quieting of title. Gudgment in an e,ectment case does not bar a subsequent action for recovery of land, or an action for quieting of title.

Baens v. CA, 1&5 SCRA 6%4 (198%)

!amages that may be awarded in e,ectment cases are for rents and reasonable compensation for the use and occupation of the property. /t does not include unrealiEed or foregone profits, moral or e8emplary damages. Note3 ?o how does the plaintiff recover foregone profits, moral and e8emplary damages>

Az una +r. v. CA, &55 SCRA &15 (1996)

=act!E AEcuna leased from 7arcelona 3 units in a building. 1he lease contract provided for liquidated damages of ;1,::: for every day that AEcuna fails to turn over the property upon e8piration of the lease. AEcuna refuses to vacate upon termination of the lease. 7arcelona wins in an e,ectment case, but AEcuna ob,ects to the award of damages outside rentals. DeldE A provision for liquidated damages, outside compensation for use of the property, in the lease contract is valid and may be enforced in an e,ectment proceedings. Note3 .ote that the court did not discuss the issue of whether the amount of liquidated damages should be within the ,urisdiction of the 16. / think the amount is irrelevant, because the liquidated damages are in the nature of a pre'arranged value of reasonable compensation for use of the leased property beyond the authoriEed period. /t can therefore be awarded by the 16, regardless of amount. Note3 1he doctrine in Progressive 'evelo ment Cor oration v. CA, 3:1 ?69A $3% *1(((+ is wrong. 1here is no splitting the cause of action if the claim for damages is beyond the ,urisdiction of the 16 in the e,ectment case. Note3 1herefore, if damages other than reasonable compensation for use of property are claimed, it must be in an amount within the ,urisdiction of the 16. Ctherwise, the claimant must file a separate action, or he must. 0e can not waive the e8cess because this principle applies only to compulsory counterclaims, not to original claims.

Penas, +r. v. CA, &%% SCRA 744 (1994)

=act!E Bessors sent letter on Ganuary 1((: asking lessee to agree to increased rentals or to vacate upon e8piration of the original lease. Bessee refused, but continued occupying the property beyond the lease period. Bessor sends letter on August 1((2 demanding that lessee vacate. Bessee refused, so lessor filed unlawful detainer case 2

Special Civil Actions 54 months later. Bessee asserts lessor5s action was filed beyond the 1 year period prescribed by law. DeldE 1 year period to file complaint for unlawful detainer should be counted from the last demand letter to vacate. D,ectment action has not yet prescribed. 2urthermore, an alternative in the letter )to pay the increased rental C9 vacate- is not the demand contemplated by the rules. /t should be )pay A.! vacate- not )pay C9 vacate-.

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-im )ie$ &on! v. CA, 195 SCRA %98 (1991)

=act!3 7uilding owner changes locks of the main door, but refusing to give new keys to the lessees. Bessee files an e,ectment case with the 16. Bessor claims the action should be for specific performance and hence should be filed with the 916. DeldE 1he 16 has ,urisdiction. 1he building owner deprived the occupant of possession through stealth. 1he remedy is therefore forcible entry. 2orcible entry is available to a lessee or tenant even against his landlord.

Clutario v. CA, &16 SCRA %41 (199&)

Accepta ce of )ac7 re tal! after 0ritte de-a d to vacate +avi , )ee -ade1 a d pe di , t+e e.ect-e t ca!e1 i! ot a 0aiver of t+e ,rou d for e.ect-e t for o %pa/-e t of re tal!.

Cursino v. Bautista, 176 SCRA 65 (1989)

Accepta ce of )ac7 re tal! after 0ritte de-a d to vacate +avi , )ee -ade1 )ut )efore t+e e.ect-e t ca!e i! eve filed1 i! ot a 0aiver of t+e ,rou d for e.ect-e t for o %pa/-e t of re tal!. Note3 .ote that in Clutario, acceptance of back rentals was pending the e,ectment case. /n Cursino, acceptance of back rentals was even before the e,ectment case was filed. /n both cases, a written demand to vacate had already been served. 1herefore, if written demand to pay and to vacate has already been made, subsequent acceptance of back rentals, whether before or pending e,ectment action, does not waive the ground for e,ectment.

A a" v. CA, &41 SCRA 546 (1995) C11&&85 &11e*95

Bease agreements with no specific period are deemed for the period in which the rents are regularly paid. 1he lease is therefore for a definite period. 1he lease e8pired at the end of the month and therefore there was a ground to demand that the lessee vacate at the end of the month. /n case of refusal, there is ground for an e,ectment action.

Ger-an 'ana+e-ent () CA, 177 SCRA 495 (1989) C76&16 14Sep89

A mere prior possessor, regardless of the nature of his possession *de Beon3 even squatters>O+, can maintain a forcible entry action even against the owner if his peaceful possession is disturbed. A prior possessor may be e,ected only by an e,ection action. 1he owner can not resort to the doctrine of self'help if he is not in possession and in danger of losing it. Note3 1he remedy of the owner is to file a separate action for recovery of land in which he can invoke his ownership.

Bando# v. CA, 175 SCRA 459 (1989)

=here the e,ectment complaint does not allege that prior demand to vacate was made, the courts never acquired ,urisdiction.

Special Civil Actions 55 6ertification by the barangay captain is not conclusive as to such prior demand, only that there was no settlement reached. Note3 /f the demand is to pay back rentals only, there is no cause of action for e,ectment, only a cause of action for collection of back rentals. /n such a case, the amount of back rentals demanded is relevant in determining ,urisdiction because the action is now a simple collection case. 9ule %: ?ec. 2 requires demand to both pay back rentals and to vacate for a cause of action in an e,ectment case to arise.
?ec. 2. (essor to roceed against lessee only after demand. M Anless otherwise stipulated, such action by the lessor shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, 888. *2a+

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0ence, if there was prior demand to vacate and pay back rentals, the 16 has e8clusive ,urisdiction over the e,ectment case regardless of the amount of incidental back rentals.

Peran () Pre idin+ Dud+e, 1&5 SCRA 78 (198%) 6357&59 1%Bct8%

;ossession by tolerance becomes illegal when the possessor refuses to comply with demand to vacate. ;rior physical possession by the e,ectment plaintiff is not necessary.

.n e v. Gonzales, 76 SCRA &58 (1977) 63448,6 %1'ar77

?upersedeas bond by the e,ectment defendant is not required where no back rentals were ad,udged. /n such a case, timely deposit of accruing rentals is enough to stay the e8ecution pending appeal.

P#ar-a Indu trie 17Bct8,

Inc () Pa.arilla+a, 1,,SCRA%%9(198,) 635%788

/n unlawful detainer, prior possession of the plaintiff is not a requisite.

Raca<a () Su ana Realt", 18 SCRA 117& (1966)

=hen the action is to terminate the lease because of e8piration of the term, prior demand to vacate is not necessary. !emand is only indicative of intention not to e8tend the lease. /t is required only if there was failure to pay rent, or to comply with the conditions of the lease. After e8piration of the lease, the lessor may regain possession of the property. 9efusal of the lessee to vacate allows the lessor to file for unlawful detainer even before e8piration of the 1" or " day period.

San Manuel v. &upas, &49 SCRA 466 (1995) A' 'AD39%389& &5Bct95
)A good reason- *as required in e8ecution pending appeal in ordinary cases+ is not necessary for e8ecution pending appeal in e,ectment cases because it is e8pressly made immediately e8ecutory by the 9ules. 2ailure of an appealing e,ectment defendant to make a periodic deposit of rentals pending appeal results in e8ecution pending appeal.

8da) de A-pil () Al(endia, 1, SCRA 8&8 (1964)

=act!E 16 grants e,ectment and orders defendant to pay accruing rents within the first " days of each month if he wants to stay e8ecution pending appeal. !efendant appeals and pays accruing rents within the first 1: days of each month, but outside the first " days. ;laintiff moves for e8ecution pending appeal. DeldE !ecision calling for payment of rentals until defendant vacates is not controlling because there is no pronouncement that the

Special Civil Actions 56 contract calls for such payment. Cnly payment within the first 1: days of the month is sanctioned by the rules. de Beon3 .ote that if the 16 orders monthly payment less than the first 1: days of the month, the appellant need not comply with such period, but he still must pay within the first 1: days of the month.

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Cit# o( Manila v. CA, 149 SCRA 18% (1987)

Dven if the plaintiff appeals a ,udgment ordering e,ectment on the ground that rentals awarded were not enough, the ,udgment is still e8ecutory pending appeal. /f the lessee desires to prevent e8ecution pending appeal, he must file a supersedeas bond and deposit in court the accruing rentals.

4uena(entura () Ealili3?", 149 SCRA && (1987)

=act!E Bessor allows lessee to occupy area in e8cess of the lease until lessor needs it. Bessee refused to vacate on demand. Bessor files case for unlawful detainer and forcible entry. DeldE 1he suit should be for unlawful detainer. 1he lessee5s possession of the e8cess area was lawful until demand to vacate was ignored. !istinction between forcible entry and unlawful detainer3 *1+ As to possession3 in forcible entry, the possession of the intruder or person who deprives another of the possession of a land or building is illegal from the beginning because his entry into or taking possession thereof is made against the will or without the consent of the former possessor# while in unlawful detainer, the possession of the detainer is originally legal or lawful, but it becomes illegal after the e8piration or termination of his right to hold possession of the land or building by virtue of a contract# *2+ As to demand to vacate3 in forcible entry, no previous demand to vacate is required by law before the filing of the action# while in an action for unlawful detainer by a landlord against his tenant, such demand is required. Allegation of prior possession is not required in unlawful detainer, while such allegation is required in forcible entry.

San Pedro v. CA, &%5 SCRA 145 (1994)

2ailure of the defendant to make periodic deposits pending appeal results in e8ecution pending appeal. D8ecution of an e,ectment case pending appeal is not stayed by a pending separate action for annulment of title of the prevailing e,ectment plaintiff.

'9. Co te-pt
DIRECT CONTEMPT .ot need to have written charge ?ummary ,udgment .ot appealable# special civil INDIRECT CONTEMPT ust have formal written charge or verified complaint 0earing is mandatory only remedy is Appealable by notice of appeal action for

Special Civil Actions certiorari or prohibition ;unished up to ;2,::: fine andLor 1: day imprisonment if committed against superior courts# ;2:: andLor 1 day if committed against lower courts

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57

;unished up to ;3:,::: fine andLor $ months imprisonment if committed against superior courts# ;",::: andLor 1 month if committed against lower courts

a.Rule &'
4eneral ;rocedure in 6ontempt Sectio '. Direct contempt punished summarily. * A per!o ,uilt/ of -i!)e+avior i t+e pre!e ce of or !o ear a court a! to o)!truct or i terrupt t+e proceedi ,! )efore t+e !a-e1 i cludi , di!re!pect to0ard t+e court1 offe !ive per!o alitie! to0ard ot+er!1 or refu!al to )e !0or or to a !0er a! a 0it e!!1 or to !u)!cri)e a affidavit or depo!itio 0+e la0full/ re4uired to do !o1 -a/ )e !u--aril/ ad.ud,ed i co te-pt )/ !uc+ court a d pu i!+ed )/ a fi e ot e8ceedi , t0o t+ou!a d pe!o! or i-pri!o -e t ot e8ceedi , te "'9( da/!1 or )ot+1 if it )e a Re,io al Trial Court or a court of e4uivale t or +i,+er ra 71 or )/ a fi e ot e8ceedi , t0o +u dred pe!o! or i-pri!o -e t ot e8ceedi , o e "'( da/1 or )ot+1 if it )e a lo0er court. "'a(

@irect Conte-pt
< misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same including .1 disrespect toward the court .2 offensive personalities toward others, or .3 refusal to be sworn or to answer as a witness .4 refusal to subscribe required to do so an affidavit or deposition when lawfully

@irect conte-pt -a" *e u--aril" ad.ud+ed and puni #ed *"

.1 a fine not e8ceeding ;2,::: or imprisonment not e8ceeding 1: days, or both < if it be a 916 or a court of equivalent or higher rank .2 a fine not e8ceeding ;2:: or imprisonment not e8ceeding 1 day, or both ' if it be a lower court. *1a+ Sec. $. )emedy therefrom. * T+e per!o ad.ud,ed i direct co te-pt )/ a / court -a/ ot appeal t+erefro-1 )ut -a/ avail +i-!elf of t+e re-edie! of certiorari or pro+i)itio . T+e e8ecutio of t+e .ud,-e t !+all )e !u!pe ded pe di , re!olutio of !uc+ petitio 1 provided !uc+ per!o file! a )o d fi8ed )/ t+e court 0+ic+ re dered t+e .ud,-e t a d co ditio ed t+at +e 0ill a)ide )/ a d perfor- t+e .ud,-e t !+ould t+e petitio )e decided a,ai !t +i-. "$a(

A#e per on ad.ud+ed in direct conte-pt *" an" court

.1 may not appeal therefrom .2 may avail himself of the remedies of certiorari or prohibition *observe rule on hierarchy of courts+ .3 1he e8ecution of the ,udgment shall be suspended pending petition for certiorari or prohibition, provided such person files a bond .a fi8ed by the court which rendered the ,udgment and .b conditioned that he will abide by and perform should the petition be decided against him the ,udgment

Special Civil Actions 58 Note3 .ote that a conviction for direct contempt is an e8ception to the general rule that special civil action for certiorari does not stay e8ecution. Sec. 2. 2ndirect contempt to (e punished after charge and hearing. * After a c+ar,e i 0riti , +a! )ee filed1 a d a opportu it/ ,ive to t+e re!po de t to co--e t t+ereo 0it+i !uc+ period a! -a/ )e fi8ed )/ t+e court a d to )e +eard )/ +i-!elf or cou !el1 a per!o ,uilt/ of a / of t+e follo0i , act! -a/ )e pu i!+ed for i direct co te-ptE "a( ")( Mi!)e+avior of a officer of a court i t+e perfor-a ce of +i! official dutie! or i +i! official tra !actio !: Di!o)edie ce of or re!i!ta ce to a la0ful 0rit1 proce!!1 order1 or .ud,-e t of a court1 i cludi , t+e act of a per!o 0+o1 after )ei , di!po!!e!!ed or e.ected fro- a / real propert/ )/ t+e .ud,-e t or proce!! of a / court of co-pete t .uri!dictio 1 e ter! or atte-pt! or i duce! a ot+er to e ter i to or upo !uc+ real propert/1 for t+e purpo!e of e8ecuti , act! of o0 er!+ip or po!!e!!io 1 or i a / -a er di!tur)! t+e po!!e!!io ,ive to t+e per!o ad.ud,ed to )e e titled t+ereto: A / a)u!e of or a / u la0ful i terfere ce 0it+ t+e proce!!e! or proceedi ,! of a court ot co !tituti , direct co te-pt u der !ectio ' of t+i! Rule: A / i-proper co duct te di ,1 directl/ or i directl/1 i-pede1 o)!truct1 or de,rade t+e ad-i i!tratio of .u!tice: A!!u-i , to )e a attor e/ or a acti , a! !uc+ 0it+out aut+orit/: to

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"c(

"d( "e( "f( ",(

officer of a court1 a d

=ailure to o)e/ a !u)poe a dul/ !erved: T+e re!cue1 or atte-pted re!cue1 of a per!o or propert/ i t+e cu!tod/ of a officer )/ virtue of a order or proce!! of a court +eld )/ +i-.

>ut ot+i , i t+i! !ectio !+all )e !o co !trued a! to preve t t+e court fro- i!!ui , proce!! to )ri , t+e re!po de t i to court1 or fro- +oldi , +i- i cu!tod/ pe di , !uc+ proceedi ,!. "2a( .ote that in indirect contempt, a written charge must be filed, and a hearing conducted. 7ut the court may order the arrest of the respondent and to detain him pending the contempt proceedings.

In tance o! Indirect conte-pt

.1 isbehavior of an officer of a court in the performance of his official duties or in his official transactions# .2 !isobedience of or resistance to a lawful writ, process, order, or ,udgment of a court .3 abuse of or any unlawful interference with the processes proceedings of a court not constituting direct contempt .4 improper conduct tending, directly or indirectly, obstruct, or degrade the administration of ,ustice to or

impede,

." assuming to be an attorney or an officer of a court, and acting as such without authority# .$ failure to obey a subpoena duly served# .% the rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him.

Special Civil Actions 59 .ote that a losing party in an e,ectment case does not commit contempt by mere refusal to leave the premises. 7ut if such party had been dispossessed pursuant to a court order, but subsequently disturbs the possession of the prevailing party, he now commits contempt. cf Rule 2@1 Sec. '9 "c(
?ec. 1:. &xecution of judgments for s ecific act. M *c+ 'elivery or restitution of real ro erty. M 1he officer shall demand of the person against whom the ,udgment for the delivery or restitution of real property is rendered and all person claiming rights under him to peaceably vacate the property within three *3+ working days, and restore possession thereof to the ,udgment obligee# otherwise, the officer shall oust and such persons therefrom with the assistance, if necessary of appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the ,udgment obligee in possession of such property. Any costs, damages, rents or profits awarded by the ,udgment shall be satisfied in the same manner as a ,udgment for money. *13a+

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Sec. 5. 1ow proceedings commenced. * Proceedi ,! for i direct co te-pt -a/ )e i itiated -otu proprio )/ t+e court a,ai !t 0+ic+ t+e co te-pt 0a! co--itted )/ a order or a / ot+er for-al c+ar,e re4uiri , t+e re!po de t to !+o0 cau!e 0+/ +e !+ould ot )e pu i!+ed for co te-pt. I all ot+er ca!e!1 c+ar,e! for i direct co te-pt !+all )e co--e ced )/ a verified petitio 0it+ !upporti , particular! a d certified true copie! of docu-e t! or paper! i volved t+erei 1 a d upo full co-plia ce 0it+ t+e re4uire-e t! for fili , i itiator/ pleadi ,! for civil actio ! i t+e court co cer ed. If t+e co te-pt c+ar,e! aro!e out of or are related to a pri cipal actio pe di , i t+e court1 t+e petitio for co te-pt !+all alle,e t+at fact )ut !aid petitio !+all )e doc7eted1 +eard a d decided !eparatel/1 u le!! t+e court i it! di!cretio order! t+e co !olidatio of t+e co te-pt c+ar,e a d t+e pri cipal actio for .oi t +eari , a d deci!io . " (

Proceedin+ !or indirect conte-pt

.1 initiated by .a the court against which the contempt was committed motu proprio < by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. .b verified petition +1 with supporting particulars and certified documents or papers involved therein, and true copies of

+2 upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. +3 Allegation that the contempt charges arose out related to a principal action pending in the court .2 an opportunity given to the respondent to .a comment thereon within such period as may be fi8ed by the court and .b be heard by himself or counsel .3 petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for ,oint hearing and decision. of or are

Special Civil Actions 60 .4 the court can issue process to bring the respondent into court, or hold him in custody pending the indirect contempt proceedings SEC. 6. Where charge to (e filed. % W+ere t+e c+ar,e for i direct co te-pt +a! )ee co--itted a,ai !t a Re,io al Trial Court or a court of e4uivale t or +i,+er ra 71 or a,ai !t a officer appoi ted )/ it1 t+e c+ar,e -a/ )e filed 0it+ !uc+ court. W+ere !uc+ co te-pt +a! )ee co--itted a,ai !t a lo0er court1 t+e c+ar,e -a/ )e filed 0it+ t+e Re,io al Trial Court of t+e place i 0+ic+ t+e lo0er court i! !itti ,: )ut t+e proceedi ,! -a/ al!o )e i !tituted i !uc+ lo0er court !u).ect to appeal to t+e Re,io al Trial Court of !uc+ place i t+e !a-e -a er a! provided i !ectio '' of t+i! Rule. "5a(

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0#ere c#ar+e to *e !iled : i! co--itted a+ain t

.1 a 916 or a higher court, or against an officer appointed by it < the charge may be filed with such court. .2 a lower court < the charge may be filed with .a such lower court sub,ect to appeal to the 916 .b the 916 of the place in which the lower court is sitting Sec. #. 1earing* release on (ail. * If t+e +eari , i! ot ordered to )e +ad fort+0it+1 t+e re!po de t -a/ )e relea!ed fro- cu!tod/ upo fili , a )o d1 i a a-ou t fi8ed )/ t+e court1 for +i! appeara ce at t+e +eari , of t+e c+ar,e. O t+e da/ !et t+erefor1 t+e court !+all proceed to i ve!ti,ate t+e c+ar,e a d co !ider !uc+ co--e t1 te!ti-o / or defe !e a! t+e re!po de t -a/ -a7e or offer. "6a(

I! t#e #earin+ i not ordered to *e #ad !ort#7it#, t#e re pondent -a" *e relea ed !ro- cu tod" upon !ilin+ a *ond
.1 in an amount fi8ed by the court .2 for his appearance at the hearing of the charge 1he court shall proceed to investigate the charge and consider such comment, testimony or defense as the respondent may make or offer. Sec. &. Punishment for indirect contempt. * If t+e re!po de t i! ad.ud,ed ,uilt/ of i direct co te-pt co--itted a,ai !t a Re,io al Trial Court or a court of e4uivale t or +i,+er ra 71 +e -a/ )e pu i!+ed )/ a fi e ot e8ceedi , t+irt/ t+ou!a d pe!o! or i-pri!o -e t ot e8ceedi , !i8 "#( -o t+!1 or )ot+. If +e i! ad.ud,ed ,uilt/ of co te-pt co--itted a,ai !t a lo0er court1 +e -a/ )e pu i!+ed )/ a fi e ot e8ceedi , five t+ou!a d pe!o! or i-pri!o -e t ot e8ceedi , o e "'( -o t+1 or )ot+. If t+e co te-pt co !i!t! i t+e violatio of a 0rit of i .u ctio 1 te-porar/ re!trai i , order or !tatu! 4uo order1 +e -a/ al!o )e ordered to -a7e co-plete re!titutio to t+e part/ i .ured )/ !uc+ violatio of t+e propert/ i volved or !uc+ a-ou t a! -a/ )e alle,ed a d proved. T+e 0rit of e8ecutio 1 a! i ordi ar/ civil actio !1 !+all i!!ue for t+e e force-e t of a .ud,-e t i-po!i , a fi e u le!! t+e court ot+er0i!e provide!. "#a( Sec. ?. 2mprisonment until order o(eyed. * W+e t+e co te-pt co !i!t! i t+e refu!al or o-i!!io to do a act 0+ic+ i! /et i t+e po0er of t+e re!po de t to perfor-1 +e -a/ )e i-pri!o ed )/ order of t+e court co cer ed u til +e perfor-! it. "&a(

Puni #-ent !or indirect conte-pt

.1 committed against a 916 or a court of equivalent or higher rank < a fine not e8ceeding ;3:,::: or imprisonment not e8ceeding $ months, or both

Special Civil Actions 61 .2 committed against a lower court < a fine not e8ceeding ;",::: or imprisonment not e8ceeding 1 month, or both. .3 consisting of violation of a writ of in,unction, 19C or status quo order < complete restitution to the party in,ured .4 refusal or omission to do an act which is yet in the power of the respondent to perform < imprisonment until he performs it 1he writ of e8ecution, as in ordinary civil actions, shall issue for the enforcement of a ,udgment imposing a fine unless the court otherwise provides. Sec. @. Proceeding when party released on (ail fails to answer. * W+e a re!po de t relea!ed o )ail fail! to appear o t+e da/ fi8ed for t+e +eari ,1 t+e court -a/ i!!ue a ot+er order of arre!t or -a/ order t+e )o d for +i! appeara ce to )e forfeited a d co fi!cated1 or )ot+: a d1 if t+e )o d )e proceeded a,ai !t1 t+e -ea!ure of da-a,e! !+all )e t+e e8te t of t+e lo!! or i .ur/ !u!tai ed )/ t+e a,,rieved part/ )/ rea!o of t+e -i!co duct for 0+ic+ t+e co te-pt c+ar,e 0a! pro!ecuted1 0it+ t+e co!t! of t+e proceedi ,!1 a d !uc+ recover/ !+all )e for t+e )e efit of t+e part/ i .ured. If t+ere i! o a,,rieved part/1 t+e )o d !+all )e lia)le a d di!po!ed of a! i cri-i al ca!e!. "?a(

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0#en a re pondent relea ed on *ail !ail to appear on t#e da" !i$ed !or t#e #earin+, t#e court -a"
.1 issue another order of arrest andLor .2 may order the confiscated bond for his appearance to be forfeited and

.a the measure of damages shall be the e8tent of the loss or in,ury sustained by the aggrieved party by reason of the misconduct for which the contempt charge was prosecuted, with the costs of the proceedings, and such recovery shall be for the benefit of the party in,ured. .b /f there is no aggrieved party, the bond shall be liable and disposed of as in criminal cases. Sec. '9. $ourt may release respondent. * T+e court 0+ic+ i!!ued t+e order i-pri!o i , a per!o for co te-pt -a/ di!c+ar,e +i- froi-pri!o -e t 0+e it appear! t+at pu)lic i tere!t 0ill ot )e pre.udiced )/ +i! relea!e. "@a( 1he court which issued the order imprisoning a person for contempt may discharge him from imprisonment when it appears that public interest will not be pre,udiced by his release. Sec. ''. )e#iew of +udgment or final order* (ond for stay. * T+e .ud,-e t or fi al order of a court i a ca!e of i direct co te-pt -a/ )e appealed to t+e proper court a! i cri-i al ca!e!. >ut e8ecutio of t+e .ud,-e t or fi al order !+all ot )e !u!pe ded u til a )o d i! filed )/ t+e per!o ad.ud,ed i co te-pt1 i a a-ou t fi8ed )/ t+e court fro- 0+ic+ t+e appeal i! ta7e 1 co ditio ed t+at if t+e appeal )e decided a,ai !t +i- +e 0ill a)ide )/ a d perfor- t+e .ud,-e t or fi al order. "'9a(

A#e .ud+-ent or !inal order o! a court in a ca e o! indirect conte-pt

.1 may be appealed to the proper court as in criminal cases. .2 e8ecution pending appeal shall not be suspended until a bond is filed by the person ad,udged in contempt .a in an amount fi8ed by the court from which the appeal is taken

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Special Civil Actions 62 .b conditioned that if the appeal be decided against him he will abide by and perform the ,udgment or final order

.ote that in both direct and indirect contempts, e8ecution pending appeal is stayed only by posting a bond even if the modes of appeal are different. Sec.'$. $ontempt against 3uasi4+udicial entities. * 3 le!! ot+er0i!e provided )/ la01 t+i! Rule !+all appl/ to co te-pt co--itted a,ai !t per!o !1 e titie!1 )odie! or a,e cie! e8erci!i , 4ua!i%.udicial fu ctio !1 or !+all +ave !uppletor/ effect to !uc+ rule! a! t+e/ -a/ +ave adopted pur!ua t to aut+orit/ ,ra ted to t+e)/ la0 to pu i!+ for co te-pt. T+e Re,io al Trial Court of t+e place 0+erei t+e co te-pt +a! )ee co--itted !+all +ave .uri!dictio over !uc+ c+ar,e! a! -a/ )e filed t+erefor. " ( 916 has ,urisdiction over contempt committed against quasi',udicial entities.

NOTEE T+e po0er to pu i!+ co te-pt !+ould )e e8erci!ed o t+e pre!ervative a d ot o t+e vi dictive pri ciple 0it+ t+e corrective rat+er t+a t+e retaliator/ idea of pu i!+-e t.

).Ca!e! An! v. Castro, 1%6 SCRA 45% (1985)

=ACTSE ;etitioner Ang lodged with ?6 an administrative complaint against respondent ,udge 6astro for ignorance of the law, gross ine8cusable negligence, incompetence, manifest partiality, grave abuse of discretion, grave misconduct, rendering un,ust decision in 6ivil 6ase .o. P'3"4$$ and dereliction of duties in not resolving his motion for reconsideration of the adverse decision in said civil case. Apon learning of the administrative case filed against him by Ang, Gudge 6astro ordered Ang to appear before him and to show cause why he should not be punished for contempt of court, for malicious, insolent, ine8cusable disrespect and contemptuous attitude towards the court and towards him. Gudge 6astro found Ang guilty of contempt of court, sentenced him to suffer five *"+ days imprisonment and ordered his arrest for his failure, despite notice, to appear on the scheduled hearing of the contempt charge against him. Ang filed his notice of appeal from the ,udgment of conviction in the contempt charge but the same was denied by the respondent ,udge. 1hereafter, respondent ,udge instituted before the Cffice of the 6ity 2iscal of PueEon 6ity a criminal complaint */.?. .o. &3'221(&3 for libel against herein petitioner for using malicious, insolent and contemptuous language against him in his letter'complaint filed before this 6ourt. DELDE 1he use of disrespectful or contemptuous language against a particular ,udge in pleadings presented in another court or proceeding is indirect, not direct, contempt as it is not tantamount to a misbehavior in the presence of or so near a court or ,udge as to interrupt the administration of ,ustice. ?tated differently, if the pleading containing derogatory, offensive or malicious statements is submitted in the same court or ,udge in which the proceedings are pending, it is direct contempt.

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Special Civil Actions

63

People v. &orio, 118 SCRA 17 (198&)

=ACTSE Appellant 1orio was the attorney of record for the accused Gose Iinluan. Apon agreement of the parties the continuation of the hearing of said case was set for 2pm 2&Gul$$, and the appellant signed the notification in open court. 7ecause the Bower 6ourt held a pre'trial conference of civil case also assigned on said date, said criminal case was later called at 233:pm. =hen the case was called for hearing the presiding ,udge noticed that the accused Iinluan, although present, was not represented by counsel. Iinluan was asked by the 6ourt to look for his lawyer, who was not yet present in court, and so he called 1orio by telephone in his residence but there was no answer. /n view of the failure of 1orio, as counsel for Iinluan, to appear for the hearing at 233:pm, the Bower 6ourt ordered the continuation of the trial of said case to (am :4Aug$$. 0owever, at 234"pm or 1"mins later, the 1orio arrived and the 6ourt ordered the resumption of the trial. 1orio appeared for accused Gose Iinluan and announced that he was ready for the hearing. At this ,uncture, the presiding ,udge, asked 1orio why he was not present when the case was called for hearing at 233:pm in spite of the fact that it was scheduled at 2pm to which he answered that he had car problems. 1he ,udge considered the e8planation as Qnot satisfactoryF and right then and there imposed a fine of ;":.:: upon 1orio, without any charge in writing nor an opportunity given to be heard by himself or counsel, held him in contempt of court, and further ordered him to pay the fine within 24 hours. 1he hearing of the criminal case proceeded with the appellant assisting his client, until the final termination of the trial. DELDE 2ailure to appear in court is not direct contempt. /t may however constitute indirect contempt.

Ca"ilan v. Ramolete, 19& SCRA 674 (199,)

Dven a pleading submitted to the court may contain derogatory or malicious statements which constitute direct contempt against such court. /t amounts to misbehaviour committed in the presence of or so near a court or ,udge as to interrupt the administration of ,ustice. !irect contempt may be punished summarily, without hearing.

Pa cua () Eeir o! Si-eon, 161 SCRA 1 (1988)

=ACTSE Gudgment was rendered in favor of respondents and against the defendants therein ordering the latter to pay ;1(,%2:.::. 1he defendants appealed to the 6A but for failure of their counsel to submit the brief within the reglementary period, the appeal was dismissed and the case was remanded to the trial court for e8ecution of ,udgment. 1o satisfy the ,udgment, twenty *2:+ parcels of land were levied upon and then sold at public auction in which the highest bidders were the respondents. As the ,udgment debtors failed to redeem the properties within the twelve'month period, the ;rovincial ?heriff of 1arlac issued a 6ertificate of Absolute ?ale. Cn motion, Gudge AlEate ordered the issuance of a writ of possession. 0owever, the defendantsL,udgment debtors would not vacate the premises. ?o respondents filed a motion before the trial court to declare the defendants in contempt of court. 62/ Gudge AlEate held defendants guilty of indirect contempt. DELDE ere refusal of a litigant to vacate the property sub,ect of a writ of possession does not constitute contempt. 1he writ is directed to the sheriff, not the parties. 1he remedy is for the sheriff to dispossess them of the premises and deliver possession to the winning party. 0owever, if after being dispossessed, the party re'enters the property for the purpose of e8ecuting acts of ownership or possession, he may then be charged for contempt.

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Santia+o () Anunciacion, Dr), 184 SCRA 118 (199,)

=act!E ?antiago was the counsel for the accused in a kidnapping case. 1he alleged kidnapping victim, Amylie, subsequently claimed that she was not kidnapped but was in fact the lover of the accused. Cn the day Amylie was supposed to testify that she was not kidnapped, a warrant of arrest was served on her in connection for a case of disobedience filed by her own mother. Apon ?antiago5s request, Amylie was arrested only after she had testified. A case for indirect contempt was filed against ?antiago in the court hearing the disobedience case. Cn the date of hearing, a private prosecutor entered his appearance. ?antiago ob,ects. DeldE A contempt charge partakes the nature of a penal proceeding. 7eing so, it is sub,ect to the rules on criminal procedure and the rules on the intervention of the offended party in criminal actions. 1he rule is that unless the offended party has waived the civil action or e8pressly reserved the right to institute it separately from the criminal action, he may intervene by counsel in the prosecution of the offense. 1he intervention of the offended party is sub,ect to the direction and control of the fiscal, and for the sole purpose of enforcing the civil liability of the accused, and as we have held, Jnot of demanding punishment of the accused.J /n the case at bar, there is no ,ustification for the prosecution of the case by a private prosecutor. /n this instance, the kind of contempt *indirect+ for which the petitioner is sought to be held liable provides for no indemnity because the alleged JobstructionJ committed was an offense against the ?tate, the respondent court in particular, which involves no private party. Note3 / think this case is illustrative of the distinction between civil *to enforce rights of litigants+ and criminal *to vindicate court authority+ contempt. 1he capacity of a private prosecutor to intervene in contempt proceedings is similar to that in criminal cases. /f there is a private offended party, i.e. civil contempt, a private prosecutor may intervene. /f there is no private offended party *criminal contempt+, a private prosecutor may not intervene. 1he contempt that ?antiago was alleged to have committed is criminal contempt because he was alleged to have interfered with court processes.

Barrete v. Amila, &%, SCRA &19 (1994)

=ACTSE 1he instant complaint originated from the decision rendered by respondent Gudge Amila in 6ivil 6ase .o. 313, in favor of plaintiff Guanita 7ungabong, which ordered defendant 9osita 7arrete, herein complainant, to vacate the house owned by plaintiff which was occupied by complainant. A writ of e8ecution was subsequently issued by respondent Gudge. 0owever, pursuant to 7arreteFs request, the ?heriff gave her until the end of the month to vacate the sub,ect premises. $mos thereafter, 7arrete had not vacated# hence, an alias writ of e8ecution was issued. Again, 7arrete was given an e8tension of 2days to pack up and leave. ?heriff went back to the premises and although he did not find 7arrete there, it was clear that she had not vacated because her furniture and other belongings were still in the house. Apon inquiry, the ?heriff learned that 7arrete had gone to 1acloban 6ity and was due to return anytime. 1he ?heriff then put a padlock on the door of 7arrete5s house. ;laintiff 7ungabongFs counsel filed a motion to declare 7arrete in 6ontempt of 6ourt. 9espondent Gudge ordered for the arrest of 7arrete. 7arrete was arrested in her house on 2"Gul(2, a ?aturday. A motion to quash the order of arrest and to release 7arrete was filed, but 7arrete and her 3 children remained in detention until 2&Gul(2, a 1uesday *the Gudge being absent from office onday, 2%Gul(2+ after she had been brought before respondent Gudge and had promised that she would vacate the house and lot she had been occupying.

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/n her administrative complaint, 7arrete alleged that she had requested the ?heriff to give her up to the end of Guly to pack her things and look for a new place, for her and her 3 children, to stay in. 7arrete then left for 1agbilaran 6ity. eanwhile, on :&Gul(2, the ?heriff locked up the sub,ect house with 7arreteFs things still in it. Apon her return, 7arrete entered said house by passing through two *2+ wooden ,alousie blades, to continue packing her things. /t was in the early morning of 2"Gul(2 that 7arrete was arrested in the sub,ect house and with her three *3+ minor children, was detained at the unicipal Gail of 7atuan, 7ohol, until 2&Gul(2. 7arrete avers that her arrest and detention without according her a day in court constituted a flagrant violation of her right to due process. 9espondent Gudge alleges that after the motion to declare 7arrete in contempt was filed, he conducted an ocular inspection of the sub,ect house on 23Gul(2, only to find out that 7arrete had indeed not vacated the same. 2or 7arreteFs disobedience, he issued an Crder for her arrest. 0owever, respondent Gudge ordered her release right after complainant promised to vacate the premises. 9espondent Gudge argues that 7arreteFs acts constituted direct contempt and the order for her arrest was made to save Guanita 7ungabong from further irreparable harm and to protect the image of the 6ourt from degradation. Gudge Amila further maintains that if 7arrete were charged with indirect contempt, she would have been imprisoned for not more than one *1+ month, which would be more burdensome on her. 1herefore, his questioned order was beneficial to plaintiff 7ungabong and herein complaint 7arrete. DELDE 1he mere refusal or unwillingness on the part of the losing party in an e,ectment case to vacate the property did not constitute contempt. 1he writ of possession was directed not to the losing party, but to the ?heriff, who was to deliver the properties to the prevailing party. As the writ did not command the losing party to do anything, the losing party could not be held guilty of disobedience of or resistance to a lawful writ, process, order, ,udgment or command of a court. oreover, the losing party could not be punished for contempt for )disobedience of or resistance to the ,udgment of the trial court- because said ,udgment was not a special ,udgment. =hen the ,udgment requires the delivery of real property, any contempt proceeding arising therefrom must be based on )act of a person who, after being dispossessed or e,ected from any real property by the ,udgment or process of any court of competent ,urisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of e8ecuting acts of ownership or possession, or in any manner disturbs the possession given to the person ad,udged to be entitled thereto- and not on Jthe disobedience of or resistance to a lawful writ, process, order, ,udgment, or command of a court, or in,unction granted by a court or ,udge.J