Professional Documents
Culture Documents
10
MEMORY AID
IN
REMEDIAL LAW
CIVIL PROCEDURE
RULE 1
GENERAL PROVISIONS
Statutes regulating the procedure of
courts will be construed as applicable to
actions pending and undetermined at the
time of their passage so long as vested
rights will not be impaired.
Under the 1987 Constitution, the rulemaking power of the Supreme Court has
the following limitations:
1. shall provide a simplified and
inexpensive procedure for the
speedy disposition of cases;
2. Uniform for all courts of the
same grade, and
3. Shall not diminish, increase or
modify substantive rights (Art.
VIII Sec. 5[5]).
Section 3. Cases governed.
ACTION
CLAIM
An ordinary suit in a
court of justice
A right possessed by
one against another
CLASSIFICATION OF ACTIONS.
(A)
ORDINARY CIVIL
SPECIAL CIVIL
ACTION
ACTION
Governed by ordinary
rules
Also governed by
ordinary rules but
SUBJECT to specific
rules prescribed (Rules
62 to 71).
Formal demand of
Special features not
ones legal rights in a found in ordinary civil
court of justice in the
actions
manner prescribed by
the court or by the
law
(B)
ACTION IN
REM
Directed
against the
thing itself
ACTION IN
ACTION
PERSONAM QUASI IN REM
Directed
against
particular
persons
Directed
against
particular
persons
Judgment is
Judgment is
Judgment
binding on the binding only binding upon
whole world upon parties
particular
impleaded or persons, but
their
the real motive
successors in is to deal with
interest
real property
or to subject
said property
to certain
claims.
Ex. Land
Ex. action to Ex. Unlawful
registration
recover
detainer or
case; probate
damages;
forcible entry;
proceedings
action for
judicial
for allowance
breach of
foreclosure of
of a will.
contract
mortgage.
The
distinction
determining the
judgment.
(C)
REAL
ACTION
is
important
in
EFFECT of the
PERSONAL
ACTION
MIXED
ACTION
MEMORY AID
(D)
LOCAL ACTION
TRANSITORY
ACTION
Must be brought in a
particular place, in
the absence of an
agreement to the
contrary
Generally, must be
brought where the
party resides
regardless of where
the cause of action
arose
IN
REMEDIAL LAW
Section 6. Construction.
General Rule: Liberal construction .
Exceptions:
a. reglementary periods
b. rule on forum shopping
RULE 2
CAUSE OF ACTION
Section 2. Cause of Action, defined.
Essential elements of cause of action
1. Existence of a legal right of the
plaintiff;
2. Correlative legal duty of the
defendant to respect ones right;
3. Act or omission of the defendant
in violation of the plaintiffs
legal right; and
4. Compliance with a condition
precedent.
CAUSE OF ACTION
RIGHT OF ACTION
RELIEF
REMEDY
SUBJECT
MATTER
the redress,
the
the thing,
protection,
procedure or wrongful act,
award or
type of
contract or
coercive
action which property which
measure which
may be
is
MEMORY AID
IN
REMEDIAL LAW
availed of by
directly
the plaintiff involved in the
as the means
action,
to obtain the concerning
desired
which the
relief
wrong has
been done and
with respect
to which the
controversy
has arisen.
ENCOURAGED.
Minimizes multiplicity
of suits and
inconvenience on the
parties
MEMORY AID
Not a ground for dismissal of an action. A
misjoined cause of action may be
severed and proceeded with separately.
There is no sanction against non-joinder
of separate causes of action since a
plaintiff needs only a single cause of
action to maintain an action.
RULE 3
PARTIES TO CIVIL ACTIONS
Section 1. Who may
plaintiff and defendant.
be
IN
REMEDIAL LAW
parties;
CLASSIFICATION
OF
PARTIES
IN
INTEREST
1. Indispensable parties those without
whom no final determination can be had
of an action. (must be joined)
2. Necessary (or proper) parties those
who are not indispensable but ought to
be parties if complete relief is to be
accorded as to those already parties, or
for a complete determination or
settlement of the claim subject of the
action. (may or may not be joined)
3. Representative parties someone
acting in fiduciary capacity. Maybe a
trustee,
guardian,
executor
or
administrator, or a party authorized by
law or these Rules.
An agent acting in his own name and for
the benefit of an undisclosed principal
may sue or be sued without joining the
principal except when the contract
involves things belonging to the principal
4. Pro forma parties those who are
required to be joined as co-parties in
suits by or against another party as may
be
provided
by
the
applicable
substantive law or procedural rule such
as in the case of spouses under Sec. 4.
5. Quasi parties those in whose behalf
a class or representative suit is brought.
Section 5.
persons.
Minor
or
incompetent
MEMORY AID
appoint a guardian ad litem. It is enough
that he be alleged to be incompetent.
The suit can be brought by or against the
minor or incompetent person personally
BUT with the assistance of his parents or
guardian.
Section
parties.
6.
Permissive
joinder
REMEDIAL LAW
them
of
NECESSARY
PARTIES
No valid judgment if
indispensable party is
not joined
IN
SOLIDARY
DEBTORS either is
indispensable and the other is not even a
necessary party because complete relief
may be obtained from either.
Section 9. Non-joinder of necessary
parties to be pleaded.
The non-inclusion of a necessary party
may be excused only on meritorious
grounds.
The court may order the inclusion of the
omitted necessary party if jurisdiction
over his person may be obtained by
ordering plaintiff to file an amended
complaint impleading the necessary
party therein as co-defendant.
The only sanction for failure to implead
a necessary party when ordered by the
court and jurisdiction can be obtained
over said party is a waiver of the claim
against him. This is considered as an
exception to the provision on penalties
imposed on a disobedient party under
Sec. 3 of Rule 17 which would have
entailed the dismissal of the complaint
itself.
Section 11. Misjoinder and non-joinder
of parties.
Neither misjoinder nor non-joinder of
parties is a ground for dismissal of the
action.
Objections to defects in parties should
be made at the earliest opportunity the
moment such defect becomes apparent
by a MOTION TO STRIKE THE NAMES OF
THE PARTIES impleaded.
MEMORY AID
If there is misjoinder, a separate action
should be brought against the party
misjoined.
The absence of an indispensable party
renders all subsequent actions of the
court null and void for want of authority
to act, not only as to the absent parties
but even as to those present.
IN
REMEDIAL LAW
Permissive Joinder
of Parties
MEMORY AID
administrator for the estate of the
deceased.
In case of minor heirs, the court may
appoint a guardian ad litem for them.
The substitute defendant need not be
summoned.
The
ORDER
OF
SUBSTITUTION shall be served upon the
parties substituted for the court to
acquire jurisdiction over the substitute
party
IN
REMEDIAL LAW
on
contractual
Requisites:
1. The action must primarily be for
recovery of money, debt, or
interest thereon, and not where
the money sought therein is
merely incidental thereto.
2. The claim, subject of the action,
arose from a contract, express or
implied, entered into by the
decedent in his lifetime or the
liability for which had been
assumed by or is imputable to
him.
If defendant dies before entry of final
judgment in the court where it was
pending at that time, the action shall
not be dismissed but shall be allowed to
continue until entry of final judgment
thereon.
However, execution shall not issue in
favor of the winning party. It should be
filed as a claim against the estate of the
decedent.
Section 21. Indigent party.
Indigent one who has no property or
income sufficient for his support aside
from his labor, even if he is selfsupporting when able to work and in
employment. He need not be a pauper
to entitle him to litigate in forma
pauperis.
While the authority to litigate as
an indigent party may be granted upon
an ex parte application and hearing, it
may be contested by the adverse party
at any time before judgment is
rendered.
RULE 4
VENUE OF ACTIONS
MEMORY AID
VENUE the place where an action must
be instituted and tried.
VENUE
JURISDICTION
Procedural
Substantive
IN
REMEDIAL LAW
MEMORY AID
IN
REMEDIAL LAW
court may
summon the
defendant
W/in 10 days
from receipt of
summons,
defendant
answers,
incoporating
compulsory
counterclaim or
crossclaim, and
serves a copy on
plaintiff
court may
dismiss the case
outright
If Defendant fails to
answer in 10 days
The court, motu propio
or on plaintiffs
motion, may render
judgment based on
facts alleged in the
complaint w/o
prejudice to
R9, S3 (c)
Answer to
counterclaim
and crossclaim
w/in 10 days
If plaintiff fails to
appear
in
prelim
conference, complaint
may be dismissed.
Defendant entitled to
decision based on his
counterclaim.
All
crossclaims dismissed.
Preliminary
conference w/in 30
days after last
answer is filed
If sole defendant
fails to appear,
plaintiff entitled to
judgment based on
complaint and
what is proved
therein
RULES ON SUMMARY
PROCEDURE
SUMMARY PROCEDURE
IN CIVIL CASES
Rendition
of judgment
CHAIRPERSON
: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
w/in 30 Jocelyn
days from
Ventura,
Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
receipt
of last
Special
Proceedings);
Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
affidavit, or w/in 15
days after last
clarificatory paper
MEMORY AID
11. Third party complaints
12. Interventions
The filing of a prohibited pleading will
not suspend the period to file an answer
or to appeal.
Although a motion to dismiss is a
prohibited pleading, its filing after the
answer had already been submitted does
not constitute a pleading prohibited by
the summary rules. What the rules
proscribe is a motion to dismiss that
would stop the running of the period to
file an answer and cause undue delay.
While a motion to declare the defendant
in default is prohibited by the rules on
summary procedure, the plaintiff may
nevertheless file a motion to render
judgment as may be warranted when the
defendant fails to file an answer.
The issuance of the pre-trial order is an
important part of the summary
procedure because it is its receipt by the
parties that begins the ten-day period to
submit the affidavits and other
evidence.
TRIAL PROCEDURE IN CIVIL CASES
No trial date is set. No testimonial
evidence
is
required
nor
crossexamination of witnesses allowed. All
that is required is that within (10) days
from receipt by the parties of the courts
pre-trial order, they shall submit (1) the
affidavits of their witnesses (2) and
other evidence on the factual issues set
forth in the pre-trial order, Together
with their position papers setting forth
the law and the facts relied upon by
them.
Judgments of inferior courts in cases
governed by summary procedure are
appealable to the RTC.
The decision of the RTC in civil cases
under this rule, including ejectment
cases, are IMMEDIATELY executory.
KATARUNGANG PAMBARANGAY LAW
(Title One, Book III, RA 7160)
IN
REMEDIAL LAW
CASES
NOT
COVERED
BY
THE
KATARUNGANG PAMBARANGAY LAW:
1. Where one party is the
government or any subdivision or
instrumentality thereof;
2. Where one party is a public
officer or employee, and the
dispute
relates
to
the
performance of his official
functions;
3. Offenses
punishable
by
imprisonment exceeding 1 year
or a fine exceeding P5,000.00;
4. Offenses where there is no
private offended party;
5. Where the dispute involves real
properties located in different
cities or municipalities UNLESS
the parties thereto agree to
submit their differences to
amicable settlement by an
appropriate lupon;
6. Disputes involving parties who
actually reside in barangays of
different cities or municipalities,
EXCEPT where such barangay
units adjoin each other and the
parties thereto agree to submit
their differences to amicable
settlement by an appropriate
lupon;
7. Such other classes of disputes
which
the
President
may
determine in the interest of
justice.
MEMORY AID
However, the court may, at any time
before trial, motu proprio refer the case
to the lupon concerned for amicable
settlement, non criminal cases not
falling within the authority of the latter.
While the dispute is under mediation,
conciliation,
or
arbitration,
the
prescriptive periods for offenses and
cause of action under existing laws shall
be interrupted upon filing of the
complaint with the punong barangay.
IN
REMEDIAL LAW
RULES
ON
VENUE
UNDER
THE
KATARUNGANG PAMBARANGAY LAW
1. Disputes between residents of
the same barangay shall be
brought for settlement before
lupon of said barangay
2. Residents of different barangays
within the same city or
municipality in the barangay
where the respondent or any of
the respondents reside at the
election of the complainant
3. Disputes involving real property
or any interest therein- where
real property or larger portion
thereof is situated
4. Disputes
arising
at
the
WORKPLACE
where
the
contending parties are employed
or at the INSTITUTION where
such parties are enrolled for
study in the barangay where
such workplace or institution
located.
CHART ON KATARUNGANG PAMBARANGAY, SEE PAGE
22.
PLEADING
MOTION
MEMORY AID
of action; interested
in the matters to be
included in the
judgment.
May be initiatory
Cannot be initiatory as
they are always made
in a case already filed
in court
IN
REMEDIAL LAW
Section 4. Answer
ANSWER the pleading where the
defendant sets forth his affirmative or
negative defenses.
Section 3. Complaint.
COMPLAINT is a concise statement of
the ultimate facts constituting the
plaintiffs cause or causes of action, with
1. General denial
2. Denial in the form of a
negative pregnant
Section 6. Counterclaim
COUNTERCLAIM any claim which a
defending party may have against an
opposing party.
Nature of counterclaim: A counterclaim
is in the nature of a cross-complaint.
Although it may be alleged in the
answer, it is not part of the answer. Upon
its filing, the same proceedings are had
as in the original complaint. For this
reason, it must be answered within ten
(10) days from service.
MEMORY AID
IN
REMEDIAL LAW
Filing of complaint
w/ the Punong
Barangay (PB)
W/in the next working day
Parties agree to
Issuance of
submit the
summons to
dispute for
the parties
arbitration
KATARUNGANG
PAMBARANGAY
PROCEDURE
and the
witnesses
Arbitration Hearings
Mediation (hearing)
Failure of
mediation
efforts
Constitution of the
Pangkat
Settlement
Execution
w/in 6
months from
date thereof
Repudiation of
arbitration
agreement
within 5 days
from date of
agreement
Award to be
made after the
lapse of the
period to
repudiate and
w/in 10 days
thereafter
Execution w/in
6 months from
the date of the
award
Conciliation
(hearing)
Settlement
Execution w/in 6
months from the
date of settlement
REMEDIAL LAW COMMITTEE
Repudiation of
settlement w/in 10
days from date
thereof
Failure of Conciliation
hearings at the Pangkat
ISSUANCE OF
Level
and of Arbitration
FOR EDPS: Martessa
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen CERTIFICATION
Farias, Maricris Oronea
Nuylan, Charissimae
hearings
shall and
also lead to
OF Alnaiza
A
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil FILING
Procedure);
Hasiman (Special
Civil Actions
the
issuance
of
Special Proceedings); Jeenice de Sagun (Criminal Procedure);
ElaineIN
Masukat
COMPLAINT
COURT(Evidence)
certification for filing a
complaint in court.
MEMORY AID
IN
REMEDIAL LAW
PERMISSIVE
COUNTERCLAIM
Need not be
answered; no default.
Must be answered,
otherwise, the
defendant can be
declared in default.
GENERAL
RULE:
A
compulsory
counterclaim not set up in the answer is
deemed barred.
EXCEPTION: If it is an after-acquired
counterclaim, that is, such claim
matured after filing of the answer. In
Section 8. Cross-claim
CROSS-CLAIM any claim by one party
against a co-party arising out of the
transaction or occurrence that is the
subject matter either of the original
action or counterclaim.
If it is not set up in the action, it is
barred, except:
1. when it is outside the jurisdiction of
the court or;
2. if the court cannot acquire
jurisdiction over third parties whose
presence is necessary for the
adjudication of said cross-claim.
In which case, the
considered permissive.
cross-claim
is
3rd-party
Complaint
MEMORY AID
IN
REMEDIAL LAW
PARTY
COMPLAINT a claim that a defending
party may, with leave of court, file
against a person not a party to the
action for contribution, indemnity,
subrogation or any other relief, in
respect of his opponents claim.
THIRD-PARTY
COMPLAINT
COMPLAINT IN
INTERVENTION
Same
MEMORY AID
A verification must now be based on
personal knowledge or based on
authentic records.
IN
REMEDIAL LAW
RULE 8
MANNER OF MAKING ALLEGATIONS IN A
PLEADING
Pleadings should state ultimate facts
essential to the right of action.
complaints
or
MEMORY AID
ACTIONABLE DOCUMENT written
instrument upon which the action or
defense is based.
IN
REMEDIAL LAW
MEMORY AID
substantial facts
responded to.
in
the
IN
REMEDIAL LAW
pleading
ORDER OF DEFAULT
JUDGMENT BY
DEFAULT
MEMORY AID
file answer to the amended complaint as
to which he was not in default.
EFFECT OF ORDER OF DEFAULT:
1. While the party in default cannot
take part in the trial, he is
nonetheless entitled to notice of
subsequent proceedings.
2. He may still be called on as a
witness, in behalf of the nondefaulting defendants.
DEFAULT
After the
lapse of time
to file an
answer, the
plaintiff may
move to
declare the
defendant in
default
Motion denied:
Defendant
allowed to file an
answer
Defendant
answers
Motion granted:
Court issues order
of default and
renders judgment,
or require plaintiff
to submit evidence
ex parte.
PARTIAL DEFAULT:
1. The pleading asserting a claim
states a common cause of action
against several defending parties
2. some of the defending parties
answer and the others fail to do
so
3. the answer interposes a common
defense
EFFECT OF PARTIAL DEFAULT: The court
will try the case against ALL defendants
upon the answer of some EXCEPT where
the defense is personal to the one who
answered, in which case, it will not
benefit those who did not answer.
REMEDY FROM JUDGMENT BY DEFAULT
(FLOW CHART)
Judgment by default
order of
default
Failure to appeal without
defendants faulk
EXTENT
OF
RELIEF
TO
BE
AWARDED
REMEDIAL LAW
Court
maintains
Before judgment
by default is
rendered,
defendant may:
move to set aside
order of default
upon showing:
FAME
He has a
meritorious
defense
Avail of Rule 65 in
proper cases
IN
Presentation
of plaintiffs
evidence exparte
IN
JUDGMENT
BY
Annulment of Judgment
under Rule 47
DEFAULT:
Shall not exceed the amount OR be
different in kind from that prayed for
If plaintiff
If plaintiff
proves his
fails to prove
allegations,
his allegaREMEDIAL LAW COMMITTEE
judgment by
tions, case is
Case
CHAIRPERSON
Uy ASST. CHAIRPERSONS
: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
set for : Jinky Ann
default.
dismissed.
Ventura,
Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
pre-trial
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
MEMORY AID
NOR
award
unliquidated
damages.
RULE 10
AMENDED AND SUPPLEMENTAL
PLEADINGS
AMENDMENTS
Section 1. Amendments in general.
When the complaint is amended, 2
situations may arise:
1. If the complaint merely corrects
or
modifies
the
original
complaint, then the action is
deemed commenced upon the
filing of the original complaint;
2. If the amended complaint
alleges a new cause of action,
then that cause of action is
deemed commenced upon the
filing
of
the
amended
complaint.
Section 2. Amendments as a matter of
right.
Amendment for the first time is a matter
of right before a responsive pleading is
filed, or in case of a Reply, within 10
days after it was served.
Since a motion to dismiss is NOT a
responsive pleading, an amendment may
be had even if an order of dismissal has
been issued as long as the amendment is
made before order of dismissal becomes
final.
Section 3. Amendments by leave of
court.
Instances when amendment by leave of
court may not be allowed:
1. When cause of action, defense
or theory of the case is changed;
2. Amendment is intended to
confer jurisdiction to the court;
3. Amendment to cure a premature
or non-existing cause of action;
4. Amendment for purposes of
delay.
Section 5. Amendment to conform to
or authorize presentation of evidence.
IN
REMEDIAL LAW
AMENDED
PLEADING
SUPPLEMENTAL
PLEADING
Refers to facts
Refers to facts arising
existing at the time of after the filing of the
the commencement
original pleading.
of the action.
Take the place of the Taken together with
original pleading.
the original pleading.
Can be made as a
Always with leave of
matter of right as
court
when no responsive
pleading has yet been
filed
MEMORY AID
1. Admissions in the superseded
pleading can still be received in
evidence against the pleader;
2. Claims or defenses alleged
therein but not incorporated or
reiterated in the amended
pleading are deemed waived.
The amended or superseded, original
pleading is not expunged but remains on
the record although the admission of the
amended
pleading
amounts
to
withdrawal of the original pleading.
RULE 11
WHEN TO FILE RESPONSIVE PLEADINGS
Answer to the complaint
1. Within 15 days after service of
summons, UNLESS a different period
is fixed by the Court (Sec. 1)
2. In case the defendant is a foreign
private juridical entity:
a. if it has a resident agent
within 15 days after service
of summons to him
b. if it has no resident agent,
but it has an agent or officer
in the Philippines within 15
days
after
service
of
summons to said agent or
officer
c. if it has no resident agent
nor agent nor officer in
which
case
service
of
summons is to be made on
the
proper
government
office which will then send a
copy by registered mail to
the home office of the
foreign private corporation
within 30 days after receipt
of summons by the home
office of the foreign private
entity.
3. In case of service of summons by
publication within the time
specified in the order granting leave
to serve summons by publication,
which shall NOT be less than 60 days
after notice (Rule 14, Sec.15).
IN
REMEDIAL LAW
MEMORY AID
RULE 12
BILL OF PARTICULARS
BILL OF PARTICULARS- a more definite
statement of any matter which appears
vague or obscure in a pleading.
PURPOSE: to aid in the preparation of a
responsive pleading.
Motion for bill of particulars must be
filed within the reglementary period for
the filing of a responsive pleading. The
filing of a motion if sufficient in form
and substance, will interrupt the time to
plead.
The motion for bill of particulars may be
granted in whole or in part as not all the
allegations questioned by the movant
are necessarily ambiguous as to require
clarification.
A bill of particulars may be filed either
in a separate or an amended pleading.
A bill of particulars becomes part of the
pleading which it supplements.
EFFECTS OF MOTION
1. If the motion is granted, the
movant can wait until the bill of
particulars is served on him by
the opposing party and then he
will have the balance of the
reglementary
period
within
which to file his responsive
pleading.
2. If his motion is denied, he will
still have such balance of the
reglementary period to do so,
counted from service of the
order denying his motion. In
either case, he will have at least
5 days to file his responsive
pleading.
Effect of non-compliance:
1. If the Order is not obeyed or in
case of insufficient compliance
therewith, the court:
a. may order the striking
out of the pleading or
the portion thereof to
IN
REMEDIAL LAW
MEMORY AID
MODES OF SERVICE
PLEADINGS
1. PERSONAL SERVICE
a. Delivering personally a copy to
the party or his counsel or;
b. Leaving a copy in counsels
office with his clerk or with a
person having charge thereof or;
c. Leaving the copy between 8 a.m.
and 6 p.m. at the partys or
counsels residence, if known,
with a person of sufficient age
and discretion residing therein--if no person found in his office,
or if his office is unknown, or if
he has no office.
2. SERVICE BY MAIL
If no registry service is available in the
locality, of either sender or addressee,
service may be done by ordinary mail.
3. SUBSTITUTED SERVICE
Delivering the copy to the clerk of court
with proof of failure of both personal
and service by mail.
JUDGMENTS,
FINAL
ORDERS,
RESOLUTIONS (Sec.9)
1. By personal service; or
2. By registered mail;
3. By publication, if party is
summoned by publication and
has failed to appear in the
action.
They can be served only under the three
modes.
They CANNOT be served by substituted
service.
NOTE: A resort to modes other than by
personal service must be accompanied
by a written explanation why the
service or filing was not done personally
(Sec. 11).
Section 10. Completeness of service.
1. Personal service
IN
REMEDIAL LAW
MEMORY AID
It serves as a warning to all persons,
prospective
purchasers
or
encumbrancers of the property in
litigation to keep their hands off the
property in litigation unless they are
prepared to gamble on the result of the
proceedings.
The defendant may also record a notice
of lis pendens when he claims an
affirmative relief in his answer.
Notice of lis pendens CANNOT be
cancelled on an ex parte motion or upon
the mere filing of a bond by the party on
whose title the notice is annotated, as
section
14
provides
that
such
cancellation may be authorized ONLY
upon order of court, after proper
showing that:
1. The notice is for the purpose of
molesting the adverse party; or
2. It is not necessary to protect the
rights of the party who caused it
to be recorded.
RULE 14
SUMMONS
PURPOSE OF SUMMONS:
1. to acquire jurisdiction over the
person of the defendant, and;
2. to give notice to the defendant
that an action has been
commenced against him.
EFFECT OF NON-SERVICE: Unless there
is waiver, non-service or irregular service
renders null and void all subsequent
proceedings and issuances in the action
from the order of default up to and
including the judgment by default and
the order of execution.
Where the defendant has already been
served with summons on the original
complaint, no further summons is
required on the amended complaint if it
does not introduce new causes of action.
But where the defendant was declared in
default on the original complaint and the
plaintiff subsequently filed an amended
complaint, new summons must be served
on the defendant on the amended
IN
REMEDIAL LAW
In case of minors: by
serving upon the minor,
regardless of age, AND
upon his legal guardian, or
also upon either of his
parents.
In case of incompetents:
by serving on him
personally AND upon his
MEMORY AID
legal guardian, but not
upon his parents, unless
when they are his legal
guardians
IN ANY EVENT, if the
minor or incompetent has
no legal guardian, the
Service upon
domestic private
juridical entity
ENTITY
To the president,
managing partner, general
manager, corporate
secretary, treasurer, or inhouse counsel.
NOTE: Service upon a
person other than those
mentioned is invalid and
does not bind the
corporation. The
enumeration is
EXCLUSIVE.
Service upon
foreign private
juridical entity
Service upon
public
corporations
Extraterritorial
service
Requisites
a. defendant does
not reside or is
not found within
the Phil.
b. he action either:
affects the personal
status of plaintiff;
relates to or the
subject of which is
property within the
REMEDIAL LAW
Philippines in
which defendant
has a lien or
interest;
demands a relief
which consists
wholly or in part in
excluding the
defendant from
any interest in any
property within the
Phil; or
property of
defendant has
been attached in
the Phil.
IN
Mode of service
a. with leave of court
served outside the
Phil. By personal
service; or
b.with leave of court
serve by publication
in a newspaper of
general circulation,
in which case copy of
the summons and
order of court must
also be sent by
registered mail to
the last known
address of
defendant; or
c. any other manner the
court deem
sufficient.
Service upon a
resident
temporarily out of
the Phil.
Substituted service or
with leave of court,
personal service out of
the Phil. as under
extraterritorial service
Service upon an
unknown
defendant or
whose
whereabouts are
unknown
MEMORY AID
jurisdiction of the court over the person
of the defendant.
Inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction
over the person of the defendant shall
NOT
be
deemed
a
voluntary
appearance.
RULE 15
MOTIONS
MOTION is an application for relief
other than by a pleading.
GENERAL RULE: Motions must be in
writing.
EXCEPTION: Those made in open court
or in the course of hearing or trial.
KINDS OF MOTIONS
a. motion EX PARTE- made without the
presence or a notification to the
other party because the question
generally
presented
is
not
debatable.
b. motion OF COURSE where the
movant is entitled to the relief or
remedy sought as a matter of
discretion on the part of the court.
c. LITIGATED motion one made with
notice to the adverse party to give
an opportunity to oppose.
d. SPECIAL motion- motion addressed
to the discretion of the court.
GENERAL RULE: A motion cannot pray
for judgment.
EXCEPTIONS:
1. Motion for judgment on the
pleadings
2. Motion for summary judgment
3. Motion
for
judgment
on
demurrer to evidence.
Section 4. Hearing on motion.
3-DAY NOTICE RULE
GENERAL RULE: Service of the copy of
motions should be made in such a
IN
REMEDIAL LAW
MEMORY AID
2. No jurisdiction over the subject
matter of the claim
3. Improper venue
4. No legal capacity to sue
5. Litis pendentia
6. Res judicata
7. Prescription
8. States no cause of action
9. Claim or demand has been paid,
waived, abandoned, or otherwise
extinguished
10. Claim is unenforceable under the
Statute of Frauds
11. Non-compliance with a condition
precedent for filing claim
based on insufficiency
of evidence.
IN
REMEDIAL LAW
MEMORY AID
Where the plaintiff has not exhausted
all
administrative
remedies,
the
complaint not having alleged the fact of
such exhaustion, the same may be
dismissed for failure to state a cause of
action.
Non-compliance
with
P.D.
1508
(Katarungang Pambarangay Law) may
result to dismissal of the case on the
ground of non-compliance with a
condition precedent.
An action cannot be dismissed on the
ground that the complaint is vague or
indefinite. The remedy of the defendant
is to move for a bill of particulars or
avail of the proper mode of discovery.
GENERAL TYPES OF A MOTION TO
DISMISS
1. motion to dismiss before answer
under Rule 16
2. motion to dismiss under Rule 17
a. upon notice by plaintiff
b. upon motion of plaintiff
c. due to fault of plaintiff
3. motion to dismiss on demurrer to
evidence after plaintiff has rested
his case under Rule 33
4. motion to dismiss the appeal filed
either in the lower court (Rule
41,Sec. 13) or in the appellate
court (Rule 50, Sec.1 ).
EFFECTS OF
ACTION ON MTD
REMEDY
IN
REMEDIAL LAW
MEMORY AID
But notice of dismissal requires an order
of the court confirming the dismissal.
Such dismissal is WITHOUT PREJUDICE,
EXCEPT:
1. Where the notice of dismissal so
provides;
2. Where the plaintiff has previously
dismissed the same case in a
court of competent jurisdiction
(TWO-DISMISSAL RULE);
3. Even where the notice of dismissal
does not provide that it is with
prejudice but it is premised on
the fact of payment by the
defendant
of
the
claim
involved.
Section 2. Dismissal upon motion of
plaintiff.
Where the plaintiff moves for the
dismissal of his complaint to which a
counterclaim has been interposed, the
dismissal shall be limited to the
complaint.
Such dismissal shall be without prejudice
to the right of the defendant to either:
1. Prosecute his counterclaim in a
separate action,
In this case, the court should
render the corresponding order
granting and reserving his right
to prosecute his claim in a
separate complaint.
-OR2. To have the same resolved in the
same action.
In such case, defendant must
manifest such preference to the
trial court within 15 days from
notice to him of plaintiffs
motion to dismiss.
These alternative remedies of the
defendant are available to him
REGARDLESS
OF
WHETHER
HIS
COUNTERCLAIM IS COMPULSORY OR
PERMISSIVE.
IN
REMEDIAL LAW
SECTION 2
SECTION 3
Dismissal is at the
instance of the
plaintiff;
Dismissal is not
procured by plaintiff
though justified by
causes imputable to
him;
MEMORY AID
the order of the court
or on plaintiffs
motion to dismiss his
own complaint;
IN
REMEDIAL LAW
Dismissal is without
Dismissal is without
prejudice to the right prejudice to the right
of the defendant to
of the defendant to
prosecute his
prosecute his
counterclaim in a
counterclaim on the
separate action unless
same or separate
w/in 15 days from
action.
notice of the motion
he manifests his
intention to have his
counterclaim resolved
in the same action
RULE 18
PRE-TRIAL
PRE-TRIAL- a mandatory conference and
personal confrontation before the judge
between the parties and their respective
counsel.
The plaintiff must promptly move ex
parte that the case be set for pre-trial ,
and this he must do upon the service and
filing of the last pleading.
The pre-trial and trial on the merits of
the case must be held on separate
dates.
When non-appearance of a party may
be excused (Sec.4):
1. If a valid cause is shown
therefore
2. If a representative shall appear
in his behalf fully authorized in
writing to:
a. Enter into an amicable
settlement
b. Submit to alternative modes
of dispute resolution
c. Enter into stipulations or
admissions of facts and of
documents
A special authority for an attorney to
compromise is required under Sec. 23,
Rule 138. Under Art. 1878 (c) of the
EFFECT OF NON-APPEARANCE OF
PLAINTIFF:
Cause for dismissal of the action, with
prejudice, unless otherwise ordered by
the court.
EFFECT OF NON-APPEARANCE OF
DEFENDANT:
Cause to allow the plaintiff to present
evidence ex parte and the court to
render judgment on the basis thereof.
Pre-trial brief. It is the mandatory duty
of the parties to seasonably file their
pre-trial briefs under the conditions and
with the sanctions provided therein.
Failure to file pre-trial brief has the
same effect as failure to appear at the
pre-trial.
Record of pre-trial. The contents of the
PRE-TRIAL order shall control the
subsequent course of the action, UNLESS
modified before trial to prevent
manifest injustice.
A party is deemed to have waived the
delimitations in a pre-trial order if he
failed to object to the introduction of
evidence on an issue outside of the pretrial order, as well as in cross-examining
the witness in regard to said evidence.
MEMORY AID
FOR CHART ON PRE-TRIAL PLS. SEE THE NEXT
PAGE.
IN
REMEDIAL LAW
PRE-TRIAL
No
Settlement
Amicable
Settlement
Agreements
made by parties;
Amendments to
pleading;
Schedule of trial
Failure to Appear
If plaintiff is
Absent, when
so required to
attend, the
court may
dismiss the
case
If defendant
is absent,
court may
hear evidence
of plaintiff
ex parte
TRIAL
Court
renders
decision
If evidence is insufficient to
prove plaintiffs cause of
action or defendants
counterclaim, court rules in
favor of either one or
dismisses the case
2.
Whether or not the intervenors
rights may be fully protected in
a separate proceeding.
RULE 19
INTERVENTION
WHO may intervene?
MEMORY AID
and immediate character that the
intervenor will either gain or lose by the
direct legal operation and effect of the
judgment.
INTERVENTION
INTERPLEADER
An ancillary action.
An original action.
Defendants are
Defendants are being
already original
sued precisely to
parties to the pending
implead them
suit
of
SUBPOENA
IN
REMEDIAL LAW
SUMMONS
SUBPOENA AD TESTIFICANDUM a
process directed to a person requiring
him to attend and to testify at the
hearing or the trial of an action, or at
any
investigation
conducted
by
competent authority, or for the taking of
his deposition.
SUBPOENA DUCES TECUM a process
directed to a person requiring him to
bring with him books, documents, or
other things under his control.
Section 2. By whom issued
WHO may issue
1. Court before whom the witness
is required to attend
2. Court of the place where the
deposition is to be taken
3. Officer or body authorized by
law to do so in connection with
investigations conducted by said
officer or body
4. Any Justice of the SC or of the
CA in any case or investigation
pending within the Philippines.
SUBPOENA TO A PRISONER must be for a
valid purpose; if prisoner required to
appear in court is sentenced to death,
reclusion perpetua or life imprisonment
and is confined in prison must be
authorized by the SC.
Section 4. QUASHING A SUBPOENA.
A. Subpoena DUCES TECUM may be
quashed upon proof that:
1. It
is
unreasonable
and
oppressive;
2. The articles sought to be
produced do not appear prima
facie to be relevant to the
issues;
MEMORY AID
3. The person asking for the
subpoena does not advance the
cost for the production of the
articles desired.
B. Subpoena AD TESTIFICANDUM may be
quashed if the witness is not bound
thereby.
In EITHER case, the subpoena may be
quashed for failure to tender the witness
fees and kilometrage allowed by the
Rules.
GENERAL RULE
a. The court which issued the
subpoena may issue a warrant
for the arrest of the witness and
make him pay the cost of such
warrant and seizure, if the court
should determine that his
disobedience was willful and
without just cause (Sec. 8);
b. The refusal to obey a subpoena
without adequate cause shall be
deemed a contempt of the court
issuing it (Sec.9).
Exceptions:
Provisions regarding the compelling of
attendance (Sec. 8) and contempt (Sec.
9) does not apply where:
a. Witness resides more than 100
km from his residence to the
place where he is to testify by
the ordinary course of travel,
generally,
by
overland
transportation (VIATORY RIGHT).
b. Permission of the court in which
the detention prisoners case is
pending was not obtained.
RULES OF DISCOVERY
DISCOVERY - is the procedure by which
one party in an action is enabled to
obtain before trial knowledge of relevant
facts and of material evidence in the
possession of the adverse party or of a
witness.
Rationale of discovery: to enable the
parties to obtain the fullest possible
knowledge of the issues and evidence
IN
REMEDIAL LAW
RULE 23
DEPOSITIONS PENDING ACTION
DEPOSITION is a written testimony of a
witness given in the course of a judicial
proceeding in advance of the trial or
hearing upon oral examination or in
response to written interrogatories and
where an opportunity is given for crossexamination.
Depositions are intended as a means to
compel disclosure of facts resting in the
knowledge of a party or other person,
which are relevant in a suit/proceeding.
CLASSIFICATIONS OF DEPOSITIONS
1. Depositions
on
ORAL
EXAMINATION and Depositions
upon WRITTEN INTERROGATORIES
MEMORY AID
2. Depositions DE BENE ESSE those taken for purposes of a
pending action (Rule 23) ; and
3. Depositions IN PERPETUAM REI
MEMORIAM - those taken to
perpetuate
evidence
for
purposes of anticipated action,
or in the event of further
proceedings in a case on appeal,
and to preserve it against danger
of loss (Rule 24).
WHEN TAKEN
WITH LEAVE OF COURT
1. after jurisdiction has been
obtained over any defendant or
over the property which is the
subject of the action and
BEFORE answer.
2. Deposition of a person confined
in prison.
WITHOUT LEAVE OF COURT
AFTER answer AND deponent is not
confined in prison.
Section 4. Use of depositions.
Where the witness is available to testify
and the situation is not one of those
excepted under Sec. 4, his deposition is
inadmissible in evidence and he should
be made to testify.
It can be used as evidence by a party for
any purpose
under the
specific
conditions in Sec. 4.
DEPONENT
USE
Any person
Witness, whether or
not a party
IN
REMEDIAL LAW
MEMORY AID
3. any
person
authorized
to
administer oaths, as stipulated
by the parties in writing
Section 12.
rogatory.
Commission
COMMISSION
or
letters
LETTERS ROGATORY
IN
REMEDIAL LAW
RULE 25
INTERROGATORIES TO PARTIES
PURPOSE of Written Interrogatories: to
elicit facts from any adverse party
(answers may also be used as admissions
of the adverse party)
Written interrogatories and the answers
thereto must both be FILED and SERVED.
Interrogatories
Bill of Particulars
A
party
may
serve
written
interrogatories:
1. WITHOUT LEAVE OF COURT
after answer has been served,
for
the
first
set
of
interrogatories.
2. WITH LEAVE OF COURT before
answer
has
been
served
(REASON: at that time, the
MEMORY AID
issues are not yet joined and the
disputed facts are not yet clear,
when more than one set of
interrogatories is to be served.)
A judgment by default may be rendered
against a party who fails to answer
written interrogatories
Only one set of interrogatories by the
same party is allowed. Leave of court is
necessary for
succeeding
sets
of
interrogatories.
Section 6. Effect of failure to serve
written interrogatories.
Rule 25 and Rule 26 are directed to the
party who fails and refuses to RESORT to
the discovery procedures, and should not
be confused with the provisions of Rule
29 which provides for sanctions or other
consequences upon a party who refuses
or fails to COMPLY with discovery
procedures duly availed of by opponent.
IN
As to Deponent
Party or ordinary
witness
REMEDIAL LAW
As to Deponent
party only
As to Procedure
As to Procedure
With intervention of
no intervention.
the officer authorized Written interrogatories
by the Court to take
are directed to the
deposition
party himself
As to Scope
Direct, cross, redirect,
re-cross
As to Scope
only one set of
interrogatories
Interrogatories
no fixed time
Interrogatories
15 days to answer
unless extended or
reduced by the court
RULE 26
ADMISSION BY ADVERSE PARTY
Section 1. Request for admission.
PURPOSE OF written request for
admission is to expedite trial and relieve
the parties of the costs of proving facts
which will not be disputed on trial and
the truth of which can be ascertained by
reasonable inquiry.
When request may be made: at any time
after the issues have been joined.
What request may include
1. Admission of the genuineness of
any material and relevant
document described in and
exhibited with the request.
2. Admission of the truth of any
material and relevant matter of
fact set forth in the request.
3. Under this rule, a matter of fact
not related to any documents
may be presented to the other
party for admission or denial.
Section 2. Implied Admission.
The effect of a FAILURE to make a reply
to a request for admission is that each of
the matters of which an admission is
requested is deemed admitted.
A sworn statement either denying
specifically each matter or setting forth
MEMORY AID
in detail the reasons why he cannot
truthfully admit or deny those matters
must be filed and served upon the party
requesting the admission.
Section 3. Effect of admission.
USE: An admission under this section is
for the purpose of the pending action
only and cannot be used in other
proceedings.
The party who fails or refuses to request
the admission of facts in question is
prevented from thereafter presenting
evidence thereon UNLESS otherwise
allowed
by
the
court
(Sec.5).
RULE 27
PRODUCTION OR INSPECTION OF
DOCUMENTS OR THINGS
Production of documents affords more
opportunity for discovery than a
subpoena duces tecum because in the
latter, the documents are brought to the
court for the first time on the date of
the scheduled trial wherein such
documents are required to be produced.
The TEST to be applied in determining
the relevancy of the document and the
sufficiency of their description is one of
reasonableness and practicality.
PRODUCTION OR
INSPECTION OF
DOCUMENTS OR
THINGS
SUBPOENA DUCES
TECUM
Essentially a mode of
discovery
The Rules is limited to
the parties to the
action
The order under this
Rule is issued only
upon motion with
notice to the adverse
party
means of compelling
production of evidence
may be directed to a
person whether a
party or not
may be issued upon an
ex parte application.
RULE 28
PHYSICAL AND MENTAL EXAMINATION
OF PERSONS
IN
REMEDIAL LAW
MEMORY AID
RULE 30
TRIAL
TRIAL judicial process of investigating
and determining the legal controversies
starting with the production of evidence
by the plaintiff and ending with his
closing arguments.
GENERAL RULE: when an issue exists,
trial is necessary. Decision should not be
made without trial.
EXCEPTIONS: when there may be
judgment without trial:
1. Judgment on the Pleading
(Rule 34)
2. Summary Judgment (Rule 35)
3. Judgment on Compromise
4. Judgment by Confession
5. Dismissal with Prejudice
(Rule 17)
IN
REMEDIAL LAW
trial
unless
Plaintiff presents
evidence
Defendant presents
evidence to
support his
defense/countercla
im/crossclaim/
third party
complaint
Third
party
defendant
presents
eidence, if
any
Section
4.
Requisites
Defendant files
demurrer to
evidence
of
If court
grants
motion:
Renders
dismisal
If court
denies
motion:
Continues
with
hearing
Rebuttal
Evidence by
After
RParties
EMEDIAL LAW COMMITTEEPresentation of
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
evidence:
Ventura, Jocelyn Zabala SUBJECT HEADS
: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
arguments
Special Proceedings); Jeenice deoral
Sagun
(Criminal Procedure); Elaine Masukat (Evidence)
submission of
DECISION
memoranda
MEMORY AID
expressed by one or both
parties; or
2. If it appears that one of the
parties,
before
the
commencement of the action or
proceeding, offered to discuss a
possible compromise but the
other party refused the offer.
Section 9. Judge to receive evidence;
delegation to clerk of court.
GENERAL RULE: the judge must himself
personally receive and resolve the
evidence of the parties.
However, the reception of such
evidence may be delegated under the
following conditions:
1. The delegation may be made
only in defaults or ex parte
hearings, or an agreement in
writing by the parties.
2. The reception of evidence shall
be made only by the clerk of
that court who is a member of
the bar.
3. Said clerk shall have no power to
rule on objections to any
question or to admission of
evidence or exhibits; and
4. He shall submit his report and
transcripts of the proceedings,
together with the objections to
be resolved by the court, within
10 days from the termination of
the hearing.
RULE 31
CONSOLIDATION OR SEVERANCE
GENERAL
RULE:
Consolidation
is
discretionary upon the court
EXCEPTIONS: Consolidation becomes a
matter of duty when:
1. if the cases are pending before
the same judge OR
2. if filed with different branches
of a court and one of such cases
has NOT been partially tried.
REQUISITES FOR CONSOLIDATION:
1. When
actions
involving
a
common question of law or fact,
and
2. The actions are pending before
the same court
IN
REMEDIAL LAW
MEMORY AID
DEMURRER TO EVIDENCE
Section 1. Demurrer to evidence.
DEMURRER TO
EVIDENCE
MOTION TO DISMISS
It is presented after
the plaintiff has
rested his case
presented before a
responsive pleading
(answer) is made by
the defendant
The ground is based it may be based on any
on insufficiency of
of those enumerated
evidence
in Rule 16
2 Scenarios
MOTION DENIED
MOTION GRANTED
BUT REVERSED ON
APPEAL
CIVIL CASES
CRIMINAL CASES
IN
REMEDIAL LAW
judgment of dismissal is
acquitting the
appealable by the
accused. Judgment of
plaintiff. If plaintiff
acquittal is not
appeals and judgment appeallable; double
is reversed by the
jeopardy sets-in
appellate court, it will
decide the case on the
basis of the plaintiffs
evidence with the
consequence that the
defendant already loses
his right to present
evidence no res
judicata in dismissal
due to demurrer
if court denies
if court denies the
demurrer, defendant
demurrer:
will present his
If demurrer was with
evidence
leave, accused may
present his evidence
If the demurrer was
without leave,
accused can no
longer present his
evidence and submits
the case for decision
based on the
prosecutions
evidence
MEMORY AID
a. general denial of the
material allegations of
the complaint;
b. insufficient denial of the
material allegations of
the complaint ; or
2. Answer
admits
material
allegations of the adverse partys
pleading
Motion to Dismiss
Motion for
judgment on the
pleadings
RULE 35
SUMMARY JUDGMENTS
SUMMARY JUDGMENT
One granted by the court for the prompt
disposition of civil actions wherein it
clearly appears that there exists NO
genuine issue or controversy as to any
material fact.
Who can File
1. Plaintiff: he must wait for the
answer to be filed and served, and
IN
REMEDIAL LAW
SUMMARY
JUDGMENT
JUDGMENT
ON THE
PLEADINGS
JUDGMENT
BY DEFAULT
(Rule 9)
MEMORY AID
RULE 36
JUDGMENTS, FINAL ORDERS AND ENTRY
THEREOF
JUDGMENT- final consideration and
determination by a court of the rights of
the parties, upon matters submitted to it
in an action or proceeding.
The date of finality of the judgment or
final order shall be deemed to be the
date of its entry.
REQUISITES OF A JUDGMENT:
1. It should be in writing, personally
and directly prepared by the judge
2. Must state clearly and distinctly the
facts and the law on which it is
based
3. It should contain a dispositive part
and should be signed by the judge
and filed with the clerk of court.
PROMULGATION- the process by which a
decision
is
published,
officially
announced, made known to the public or
delivered to the clerk of court for filing,
coupled with notice to the parties or
their counsel.
MEMORANDUM DECISION- a decision of
the appellate court which adopts the
findings and the conclusion of the trial
court.
JUDICIAL COMPROMISE
A judgment based
on a
compromise which has the force
of law and is conclusive between
parties.
Not appealable.
A JUDGMENT is considered RENDERED
Upon filing of the signed decision. This
includes an amended decision because
an amended decision is a distinct and
separate judgment and must follow the
established procedural rule.
The power to amend a judgment is
inherent to the court before judgment
becomes final and executory.
After judgment has become executory,
the court cannot amend the same
IN
REMEDIAL LAW
EXCEPT:
1. To make corrections of
clerical
errors,
not
substantial amendments, as
by an amendment nunc pro
tunc.
2. To clarify an ambiguity which
is borne out by and
justifiable in the context of
the decision.
3. In judgments for support,
which
can
always
be
amended from time to time.
MANNER OF ATTACKING JUDGMENTS:
1. Direct attack
a. before finality
1. motion for new trial or
reconsideration;
2. appeal
b. after finality
1. relief from judgment, rule
38
2. annulment of judgment, Rule
47.
2.Collateral attack
Court Renders Decision
Losing Party
PROMULGATION OF
JUDGMENT
Accepts
decision
without further
contest
Court
maintains
decision
If no appeal is
taken or did
REMEDIAL LAW COMMITTEE
not avail of
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris
Oronea EDPS: Martessa Nuylan, Charissimae
remedies,
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure);
Alnaiza Hasiman (Special Civil Actions and
judgment
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine
Masukatfinal
(Evidence)
becomes
Losing party may
and executory
appeal within the
remaining period
MEMORY AID
IN
REMEDIAL LAW
Judgment upon
Compromise
Judgment by
Confession
Clarificatory Judgment
rendered by the court, upon motion,
when a judgment previously rendered is
ambiguous and difficult to comply with.
AMENDED OR
CLARIFIED
JUDGMENT
SUPPLEMENTAL
DECISION
It is an entirely new
decision and
supersedes the
original judgment
Court makes a
thorough study of the
original judgment and
renders the amended
Serves to bolster or
add to the original
judgment
MEMORY AID
and clarified judgment
only after considering
all the factual and
legal issues
REMEDIAL LAW
RULE 37
NEW TRIAL OR RECONSIDERATION
Order denying
motion for new trial
IN
MOTION FOR
RECONSIDERATION
The grounds are: fraud, The grounds are: the
accident, mistake or
damages awarded are
excusable negligence or excessive, that the
newly discovered
evidence is insufficient
evidence which could to justify the decision
not, with reasonable
or final order, or that
diligence, have
the decision or final
discovered and produced order is contrary to
at the trial, and which if
law.
presented would
probably alter the result
MEMORY AID
TRIAL
REOPENING OF THE
TRIAL
Specifically
mentioned in the
Rules
1. Petition
for
Relief
from
Judgment (Rule 38)
2. Annulment of judgments or final
orders or resolutions (Rule 47) on
the ground of:
o Extrinsic fraud, to be filed
within 4 years from the
discovery of the fraud;
REMEDIAL LAW
RULE 37
RULE 38
Available BEFORE
judgment becomes
final and executory
Applies to
JUDGMENTS or FINAL
ORDERS only
Available AFTER
judgment has become
final and executory
Applies to judgments,
final orders and other
proceeding:
1.Land Registration
2.Special Proceedings
3. Order of Execution
GROUNDS:
i. FAME
ii. Newly discovered
evidence
WHEN AVAILED OF:
Within the time to
appeal
RULE 38
RELIEF FROM JUDGMENTS, ORDERS, OR
OTHER PROCEEDINGS
REMEDIES
AGAINST
FINAL
AND
EXECUTORY JUDGMENTS OR ORDERS
IN
GROUNDS:
FAME
WHEN AVAILED OF:
within 60 days from
knowledge of the
judgment AND
within 6 months from
entry of judgment
If denied, the order
denying a petition for
relief is NOT
appealable; the
remedy is appropriate
civil action under Rule
65
Equitable remedy
Petition must be
verified
MEMORY AID
IN
REMEDIAL LAW
RULE 39
EXECUTION, SATISFACTION AND EFFECT
OF JUDGMENTS
EXECUTION remedy provided by law
for the enforcement of a final judgment.
AGAINST WHOM ISSUED: execution can
only issue against a party and not against
one who has not had his day in court.
WRIT OF EXECUTION: judicial writ
issued to an officer authorizing him to
execute the judgment of the court.
ESSENTIAL REQUISITE OF A WRIT OF
EXECUTION: a writ of execution to be
valid, must conform strictly to the
decision or judgment which gives it life.
Judgment is
executed by
motion within
5 years from
date of its
entry
Execution is a
matter of right
after
expiration of
period to
appeal and no
appeal is
perfected
If the winning
party does not
move for
execution w/in
5 years but
before 10
years from the
date of entry
of judgment,
the same can
only be revived
by means of a
new action /
petition
Discretionary
execution upon
good reasons
stated in a
special order
after due
hearing
MEMORY AID
QUASHAL OF WRIT PROPER WHEN:
1. Improvidently issued
2. Defective in substance
3. Issued against the wrong party
4. Judgment already satisfied
5. Issued without authority
Section 2. Discretionary Execution
DISCRETIONARY
EXECUTION
EXECUTION AS A
MATTER OF RIGHT
Discretionary upon
the court; there is
inquiry on whether
there is GOOD
REASON for
execution
Ministerial duty of
the court PROVIDED
there are no
supervening events
IN
REMEDIAL LAW
MEMORY AID
IN
REMEDIAL LAW
ATTACHMENT
GARNISHMENT
Refers to corporeal
property in the
possession of the
judgment debtor.
refers to money,
stocks, credits and
other incorporeal
property which belong
to judgment debtor
but is in the possession
or under the control of
a third person
Section
16. Proceedings Where
Property Claimed By Third Person.
REMEDIES of THIRD PARTY CLAIMANT
MEMORY AID
property in his possession. IF NO BOND,
cannot proceed with the sale.
SALE ON EXECUTION
Notice of sale is required before levied
property can be sold at public auction
(Sec. 15).
Remedy against an irregular sale is
MOTION TO VACATE OR SET ASIDE THE
SALE to be filed in the court which
issued the writ.
REDEMPTION (Secs. 27 & 28)
Right of Redemption:
1. Personal Property NONE; sale is
absolute
2. Real Property there is a right of
redemption
WHO may redeem (Sec. 27)
Only the following:
a. Judgment
obligor,
or
his
successor in interest, in whole or
any part of the property; OR
b. Redemptioner who is a creditor
having a:
1) Lien by attachment on
the
property
sold
subsequent to the lien
under
which
the
property was sold,
2) Lien by judgment on the
property sold subsequent
to the lien under which
the property was sold;
3) Lien by mortgage on the
property sold subsequent
to the lien under which
the property was sold.
WHEN CAN REDEMPTION BE MADE?
BY THE JUDGMENT OBLIGOR: Within one
(1) year from the date of registration of
the certificate of sale.
BY THE REDEMPTIONER:
1. Within one year from the date of
registration of the certificate of
sale; or
2. Within sixty days from the last
redemption
by
another
redemptioner
IN
REMEDIAL LAW
MEMORY AID
The purchaser acquires no better right
than what the judgment debtor has in
the property levied upon. Thus, if the
judgment debtor had already transferred
the property executed prior to the levy
and no longer has an interest in the
property, the execution purchaser
acquires no right.
WHEN A THIRD PERSON IS IN POSSESSION,
The procedure is for the court to order a
hearing and determine the nature of
such adverse possession.
2.
3.
REMEDIAL LAW
5.
6.
7.
IN
MEMORY AID
rebutted directly by means of relief from
judgment or annulment of judgment or
indirectly by offering them in evidence
under the parole evidence rule.
Par (A) refers to rule ON RES JUDICATA
in judgments IN REM
JUDGMENT or
FINAL ORDER
EFFECT: CONCLUSIVE
AS TO
Against a specific
thing
Probate of a will or
administration of
the estate of a
deceased person
In respect to the
personal, political,
or legal condition or
status of a
particular person
Will or administration
However, ONLY prima
facie evidence of the
death of the testator
or intestate
Condition, status or
relationship of the
person
IN
REMEDIAL LAW
the RTC
appellee files his own memorandum
The first15judgment
days from isreceipt of appellants
conclusive
only as to
memorandum
MEMORY AID
their successors-in-interest by a
subsequent title.
In both instances, the judgment may be
repelled by evidence of want of
jurisdiction, notice, collusion, fraud or
clear mistake of law or fact.
RULE 40
APPEAL FROM MUNICIPAL TRIAL COURTS
TO THE REGIONAL TRIAL COURTS
APPEAL FROM MTC TO RTC
IN
REMEDIAL LAW
ORDINARY APPEAL
PETITION FOR
REVIEW
Matter of right
All the records are
elevated from the
court of origin
Notice of record on
appeal is filed with
the court of origin
Discretionary
No records are
elevated unless the
court decrees it
Filed with the CA
By Record on appeal:
1. for special proceedings such as
probate; and
2. in such other cases where
multiple appeals are allowed as
in
partition
and
in
expropriation.
Section 4. Perfection of Appeal; effect
thereof.
Appeal is deemed perfected:
1. by notice of appeal: as to him,
upon the filing of the notice of
appeal in due time;
2. by record on appeal: as to him,
upon the approval of the record
on appeal filed in due time.
Effect of a perfected appeal:
The court loses jurisdiction upon the
perfection or approval of appeal and
when the period of appeal for other
parties expire.
MEMORY AID
Residual power of the court prior to the
transmittal of the original record or
record on appeal:
1. to issue
orders
for
the
preservation of the rights of the
parties which do not involve
matters litigated by appeal;
2. to approve compromise prior to
the transmittal of the record;
3. permit appeal by an indigent;
4. order execution pending appeal
under Rule 39, Sec.2 ( motion
for execution was filed before
the expiration of the period to
appeal;
5. allow withdrawal of the appeal.
APPEALABLE CASES
1. Judgments or final orders that
completely disposes of the case.
2. A particular matter in a
judgment declared by the Rules
to be appealable.
NON APPEALABLE CASES
1.
2.
3.
5.
6.
REMEDIAL LAW
TRIAL COURTS
4.
IN
Petition for
review on
certiorari
[Rule 45]
Case is decided
by the RTC in
The case
raises only a
Case is
decided by
MEMORY AID
its original
the MTC.
jurisdiction
Appealed to
Appealed to the
the RTC.
CA
Petition for
review with
the CA
File a notice of File a verified
appeal or a
petition for
record on
review with
appeal with the the CA. Pay
court of origin
the docket
(RTC) and give
and lawful
a copy to the
fees, and P
adverse party. 500 as deposit
for costs with
the CA.
Furnish RTC
and adverse
party copy of
such (R 42).
question of
law
File a verified
petition for
review on
certiorari with
the SC (R 45)
Pay docket
and lawful
fees and P 500
for costs.
Submit proof
of service of a
copy to the
lower court
and adverse
party.
IN
REMEDIAL LAW
RULE 42
PETITION FOR REVIEW FROM THE
REGIONAL TRIAL COURTS TO THE
COURT OF APPEALS
Petition for review is not a matter of
right but discretionary on the CA. It may
only give due course to the petition if it
shows on its face that the lower court
has committed an error of fact and/or
law that will warrant a reversal or
modification of the decision or judgment
sought to be reviewed; OR dismiss the
petition if it finds that it is patently
without merit, or prosecuted manifestly
for delay, or the questions raised therein
are too unsubstantial to require
consideration.
It is merely discretionary on the CA to
order the elevation of the records. This
is because until the petition is given due
course, the trial court may still issue a
warrant of execution pending appeal and
in some cases such as ejectment and
those of Summary Procedure, the
judgments are immediately executory. It
is only when the CA deems it necessary
that the Clerk of the RTC will be ordered
to elevate the records of the case.
RULE 43
MEMORY AID
APPEALS FROM THE COURT OF TAX
APPEALS AND THE QUASI-JUDICIAL
AGENCIES TO THE CA
Judgments and final orders or resolutions
of the NLRC are reviewable by the
COURT OF APPEALS in an original action
for certiorari under Rule 65 (St. Martin
Funeral Home vs. NLRC, Sept. 16, 1998).
A party adversely affected by a decision
or ruling of the CTA en banc may file
with the Supreme Court a verified
petition for review on certiorari pursuant
to Rule 45 (Sec. 12, RA 9282).
RULE 44
ORDINARY APPEALED CASES
IN
REMEDIAL LAW
BRIEF
MEMORANDUM
Ordinary appeals
Certiorari, Prohibition,
Mandamus, Quo
Warranto and Habeas
Corpus cases
within 30 days
RULE 45
APPEAL BY CERTIORARI TO THE
SUPREME COURT
RTC, Sandiganbayan or CA
renders decision
Section
1.
with Supreme
Filing of petition
Court
MEMORY AID
Appeals to the SC can be taken from a
judgment or final order or resolution of
the CA, the Sandiganbayan, the RTC or
such other courts as maybe authorized
by law and only by verified petition for
review on certiorari on questions of law
except only in appeals from judgments
of the RTC in criminal cases wherein the
penalty imposed is life imprisonment or
reclusion perpetua which shall be
elevated by ordinary appeal, or wherein
the death penalty is imposed which is
subject to automatic review.
IN
REMEDIAL LAW
QUESTIONS OF LAW
QUESTIONS OF
FACT
doubt or controversy
as to what the law is
on certain facts
doubt or difference
arises as to the truth
or falsehood of facts,
or as to probative
value of the evidence
presented
MEMORY AID
RULE 45
RULE 64/65
petition is based on
questions of law
It is a mode of appeal
Court exercises
original jurisdiction
IN
REMEDIAL LAW
appellate jurisdiction
and power of review
RULE 46
ORIGINAL CASES
Section 2. To what actions applicable.
Under B.P. Blg. 129, the CA has original
jurisdiction to issue writs of mandamus,
prohibition, certiorari, habeas corpus
and quo warranto, and auxiliary writs or
processes, whether or not they are in aid
of its appellate jurisdiction, and it has
exclusive original jurisdiction over
actions for annulment of judgments of
Regional Trial Courts.
MEMORY AID
the reception of evidence on
such issues to any of its
members.
RULE 47
ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS
Annulment of judgment is a remedy in
law independent of the case where the
judgment sought to be annulled was
rendered and may be availed of though
the judgment has been executed.
One important condition for the
availment of this remedy - the petitioner
failed to move for new trial in, or appeal
from, or file a petition for relief against,
or take other appropriate remedies
assailing the questioned judgment or
final order or resolution through no fault
attributable to him.
If he failed to avail of those other
remedies without sufficient justification,
he cannot resort to annulment provided
in this Rule, otherwise he would benefit
from his own inaction or negligence.
Grounds for ANNULMENT OF JUDGMENT
1. extrinsic fraud or collateral
fraud;
2. lack of jurisdiction;
Extrinsic fraud shall not be a valid
ground if it was availed of, or could have
been availed of, in a motion for new
trial or petition for relief.
EXTRINSIC OR COLLATERAL FRAUD is
any fraudulent act of the prevailing
party in the litigation which is
committed outside of the trial of the
case, whereby the defeated party has
been prevented from exhibiting fully and
fairly presenting his side of the case.
EXTRINSIC
FRAUD
Period of
Filing
action
LACK OF
JURISDICTION
Effect of
judgment
IN
REMEDIAL LAW
Trial court
will try the
case
Original action
may be refiled
MEMORY AID
DISMISSAL OF APPEAL
Section 1. Grounds for dismissal of
appeal
With the exception of Section 1 (b)
dismissal of an appeal is directory and
not mandatory.
Other grounds for the dismissal of an
appeal are:
1. by agreement of the parties, as
where the case was amicably
settled by them.
2. where the appealed case has
become moot or academic.
3. where the appeal is frivolous or
dilatory.
Section 2. Dismissal of improper appeal
to the Court of Appeals
No transfer of appeals, erroneously
taken to it or to the Court of Appeals,
whichever of these tribunals has
appropriate appellate jurisdiction, will
be allowed. Also, elevating such appeal
by the wrong mode of appeal shall be a
ground for dismissal.
A resolution of the Court of Appeals
dismissing the appeal and remanding the
case to the trial court for further
proceedings is merely interlocutory,
hence a motion for its reconsideration
filed year later may be entertained and
granted
Section 3. Withdrawal of Appeal
Court of Appeals may dismiss the appeal
outright even without motion. The
remedy if dismissed for improper appeal
is to refile it in the proper forum but has
to be within the prescribed period.
RULE 51
JUDGMENT
Law of the Case the opinion delivered
on a former appeal. It means that
whatever
is
once
irrevocably
established, as the controlling legal rule
or decision between the same parties in
the same case, continues to be the law
of the case, whether correct on general
IN
REMEDIAL LAW
MEMORY AID
Even if the error complained of by a
party is not expressly stated in his
assignment of errors but the same is
closely related to or dependent on an
assigned error and properly argued in his
brief such error may now be considered
by the court.
RULE 52
MOTION FOR RECONSIDERATION
The rules now prohibit a second motion
for reconsideration.
Sec. 3 provides a time limit of 90 days
for the resolution of a motion for
reconsideration filed with the Court of
Appeals from the date the same was
submitted for resolution, which is
normally the filing of the last pleading
required by the rules of court or the
expiration of such period.
Rules now requires the service of the
motion
to
the
adverse
party
IN
REMEDIAL LAW
RULE 53
NEW TRIAL
Filing of a motion for new trial is at any
time after the perfection of the appeal
from the decision of the lower court and
before the Court of Appeals loses
jurisdiction over the case
The ground is newly discovered evidence
which could not have been discovered
prior to the trial in the court below by
the exercise of due diligence and of such
character as would probably alter the
result.
RULE 56
PROCEDURE IN THE SUPREME COURT
A. ORIGINAL CASES
Rule specifically states what cases may
be originally filed with the Supreme
Court
1. petition
for
certiorari,
prohibition, mandamus, quo
warranto, habeas corpus;
MEMORY AID
WHEN issued
1. In actions for recovery of a
specified sum of money or
damages, except moral and
exemplary, on a cause of action
arising from law, contract, quasicontract, delict or quasi-delict
against a party about to depart
from the Phils. with intent to
defraud his creditors;
2. In actions for recovery of money
or property embezzled or
fraudulently converted to his
own use by a public officer, or an
officer of a corp., or an
attorney, factor, broker, agent or
clerk, in the course of his
employment as such, or by any
person in a fiduciary capacity;
3. In actions to recover property
unjustly taken or concealed,
when the property or any of its
part, has been concealed or
disposed of to prevent its being
found by the applicant or any
authorized person;
4. In actions against a person guilty
of fraud in incurring or
performing an obligation upon
which the action is based;
5. In actions against a party who
has removed or disposed of his
property, or is about to do so,
with intent to defraud his
creditors;
6. In actions against non-residents
not found in the Phils., or on
whom summons is served by
publication.
RULE 58
PRELIMINARY INJUNCTION
Preliminary Injunction an order granted
at any stage of an action or proceeding
prior to the judgment requiring a party
IN
REMEDIAL LAW
MEMORY AID
Effectivity of TRO is not extendible.
There is no need of a judicial declaration
to that effect.
A TRO issued by the CA or any of its
members is effective for 60 days from
service on the party sought to be
enjoined.
A TRO issued by the SC or a member
therof is effective until further orders.
GROUNDS FOR OBJECTION
1. insufficiency;
2. if
injunction
would
cause
irreparable damage to the
person enjoined while the
applicant
can
be
fully
compensated for such damages,
PROVIDED the former files a
BOND.
Distinctions
INJUNCTION
PROHIBITION
directed against a
party in the action
Directed against a
court, tribunal or a
person exercising
judicial powers
Based on the ground
that the court against
whom the writ is
sought had acted
without or in excess of
jurisdiction
IN
REMEDIAL LAW
RULE 59
RECEIVERSHIP
WHEN MAY BE GRANTED
1. applicant has an interest in the
property or fund subject of the
proceeding and such property is
in danger of being lost or
materially injured unless a
receiver is appointed;
2. in foreclosure of mortgage, when
the property is in danger of
being wasted or dissipated and
that its value is probably
REPLEVIN
ATTACHMENT
Available even if
recovery of property is
only incidental to the
relief sought.
MEMORY AID
CANNOT be availed of
when property is in
custodia legis
Available before
defendant answers
Available from
commencement but
before entry of
judgment
IN
REMEDIAL LAW
RULE 61
SUPPORT PENDENTE LITE
When may be applied for: at the
commencement of the action or at any
time before judgment or final order.
Failure to comply with an order granting
support pendente lite may warrant the
issuance of an order of execution against
the non-complying party.
He may
likewise be liable for contempt.
See matrix on provisional remedies
more detailed information.