Notes of Marian Camille Chavez (November 14, 2011)

Civil Procedure
RULE 30
TRIAL
Trial
It is the judicial process of determining legal controversies,
beginning with the production of evidence by the plainitff,
and ending with his closing arguments.
Hearing vs. Trial
Hearing is a broader term because it covers several stages
in the litigation, including pre-trial or denial of motions.
When trial is unnecessary
1. Where the pleadings of the parties tender no issue at
all, a judgment of the pleadings may be directed by the
court (Rule 34)
2. Where from the pleadings, affidavits, depositions and
other papers, there is actually no genuine issue, the
court may render a summary judgment (Rule 35)
3. Where the parties have entered into a compromise or
an amicable settlement either during the pre-trial or
while the trial is in progress (Rule 18)
4. Where the complaint has been dismissed with
prejudice (Sec 5, Rule 16; Sec 3, Rule 17; Sec 5, Rule
7)
5. Where the case falls under the operation of the Rules
on Summary Procedure
6. Where, the parties agree in writing, upon the facts
involved in the litigation, and submit the case for
judgment on the facts agreed upon, without the
introduction of evidence. If however, there is no
agreement as to all the facts in the case, trial may be
held only as to the disputed facts (Sec 6, Rule 30)

when authorized in writing by the Court Administrator,

Supreme Court.
Sec. 3. Requisites of motion to postpone trial for
absence of evidence.
A motion to postpone a trial on the ground of absence of
evidence can be granted only upon affidavit showing the
materiality or relevancy of such evidence, and that due
diligence has been used to procure it. But if the adverse
party admits the facts to be given in evidence, even if he
objects or reserves the right to their admissibility, the trial
shall not be postponed.
Sec. 4. Requisites of motion to postpone trial for illness
of party or counsel.
A motion to postpone a trial on the ground of illness of a
party or counsel may be granted if it appears upon affidavit
or sworn certification that the presence of such party or
counsel at the trial is indispensable and that the character
of his illness is such as to render his non-attendance
excusable.
Postponement
A postponement is not a matter of right. It is addressed to
the sound discretion of the court (Garcia vs. Valenzuela).

Sec. 5. Order of trial.

Subject to the provisions of section 2 of Rule 31, and
unless the court for special reasons otherwise directs, the
trial shall be limited to the issues stated in the pre-trial
order and shall proceed as follows:

Section 1. Notice of trial.

Upon entry of a case in the trial calendar, the clerk shall
notify the parties of the date of its trial in such manner as
shall ensure his receipt of that notice at least five (5) days
before such date.

(a) The plaintiff shall adduce evidence in support of his

complaint;
(b) The defendant shall then adduce evidence in support of
his defense, counterclaim, cross-claim and third-party
complaint;

Calendaring of cases
Clerk of court shall give preference to habeas corpus cases,
election cases, special civil actions, and those required by
law to be preferred (Sec 1, Rule 20)

If several defendants or third-party defendants, and so

forth, having separate defenses appear by different
counsel, the court shall determine the relative order of
presentation of their evidence.

Session Hours

RULE 132

8:30 am to 12:00 nn; 2 pm to 4:30 pm (Admin Circ. No 339, January 15, 1999)

Sec. 4. Order in the examination of an individual witness.

The order in which the individual witness may be
examined is as follows;

Sec. 2. Adjournments and postponements.

(a)Direct examination by the proponent;

A court may adjourn a trial from day to day, and to any

stated time, as the expeditious and convenient transaction
of business may require, but shall have no power to adjourn
a trial for a longer period than one month for each
adjournment, nor more than three months in all, except

NOTE: Offer of testimony (not offer of evidence)

Sec. 5. Direct examination. Direct examination is the
examination-in-chief of a witness by the party presenting
him on the facts relevant to the issue. (5a)

Notes of Marian Camille Chavez (November 14, 2011)

Civil Procedure
(b)Cross-examination by the opponent;
Sec. 6. Cross-examination; its purpose and extent. Upon
the termination of the direct examination, the witness may
be cross-examined by the adverse party as to many matters
stated in the direct examination, or connected therewith,
with sufficient fullness and freedom to test his accuracy
and truthfulness and freedom from interest or bias, or the
reverse, and to elicit all important facts bearing upon the
issue. (8a)
(c)Re-direct examination by the proponent;
Sec. 7. Re-direct examination; its purpose and extent.
After the cross-examination of the witness has been
concluded, he may be re-examined by the party calling
him, to explain or supplement his answers given during the
cross-examination. On re-direct-examination, questions on
matters not dealt with during the cross-examination, may
be allowed by the court in its discretion. (12)
(d)Re-cross-examination by the opponent. (4)
Sec. 8. Re-cross-examination. Upon the conclusion of
the re-direct examination, the adverse party may re-crossexamine the witness on matters stated in his re-direct
examination, and also on such other matters as may be
allowed by the court in its discretion. (13)
NOTES: (continuation of procedure)

(c) The third-party defendant, if any, shall adduce

evidence of his defense, counterclaim, cross-claim and
fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce
evidence of the material facts pleaded by them;
(e) The parties against whom any counterclaim or crossclaim has been pleaded, shall adduce evidence in support
of their defense, in the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons and in
the furtherance of justice, permits them to adduce
evidence upon their original case NOTE: by motion(?)
NOTES: (Continuation of procedure)
Sur-rebuttal Evidence Evidence in reply to rebut new
matter introduced in rebuttal (Sandakan vs. Sero)
(g) Upon admission of the evidence, the case shall be
deemed submitted for decision, unless the court directs
the parties to argue or to submit their respective
memoranda or any further pleadings. Intervention (Sec 1, Rule 19): admission, by leave of
court, of a person not an original to pending legal
proceedings, by which such person becomes a party thereto
for the protection of some right or interest alleged by him
to be affected by such proceedings

Formal offer of evidence after presentation of all

witnesses

Decision (Rule 36)

Comment / Objection secondary, not identical

Order of admission / Exclusion of Evidence

Yu vs. Magpayo

Tender of Excluded Evidence

SEC. 40. Tender of excluded evidence.If documents or
things offered in evidence are excluded by the court, the
offeror may have the same attached to or made part of the
record. If the evidence excluded is oral, the offeror may
state for the record the same and other personal
circumstances of the witness and the substance of the
proposed testimony
Plaintiff rests its case
Defendant may file demurrer to evidence (Rule 33)
NOTES:
1. In Summary proceedings, no trial, no demurrer
2. There is demurrer in Summary procedure in criminal
cases (constitutional right to due process)
DEFENDANTS EVIDENCE IN CHIEF
NOTE: Same, but no more demurrer to evidence after
defendant rests its case
Sec. 5 (Continuation)

FACTS
Yu sold an engine to Magpayo. Magpayo failed to pay the
balance of P2,800. The total amount was P6,800.
Subsequently, Yu sued Magpayo in the City Court of
Davao. Magpayo answered, admitting said complaint,
admitting the fact that there was a transaction, but said that
that there was a defect on the engine, which caused him to
have it repaired, and that Yu agree to waive said balance.
During the hearing, Magpayo and his counsel failed to
appear. The court directed ex-parte proceeding the same
day. The judge insisted that Yu present his evidence, but
Yu repeatedly answered that he reserves his right to
present evidence until Magpayo presents his, and when
Magpayo does, he will present rebuttal evidence.
However, the judge took this as Yus refusal to present
evidence when the court asks him to. On motion for
reconsideration, the judge again denied. The Case was
dismissed for lack of prosecution.
HELD
The Supreme Court held that it was erroneous for the case
to be dismissed.
Plaintiff had every right to insist that defendant come
forward with evidence in support of his special

Notes of Marian Camille Chavez (November 14, 2011)

Civil Procedure
defences, since the answer admitted the defendants
obligation.
Revised Rule of Court 129 (Now Sec 4) plainly supports
appellant:
Sec. 2. Judicial admissions. Admissions made by the
parties in the pleadings, or in the course of the trial or
other proceedings do not require proof and can not be
contradicted unless previously shown to have been made
through palpable mistake.
NOTE:
Lack of cause of action may be cured by evidence
presented during the trial and amendments to conform to
the evidence. (Swagman Hotels & Travel, Inc)

There is reverse trial in criminal proceedings in case the

accused raises justifying or exempting circumstance.
(Burden of Evidence Shifts)
RULE 118 (Criminal Procedure)
Section 11. Order of trial. The trial shall proceed in the
following order:
(a) The prosecution shall present evidence to prove the
charge and, in the proper case, the civil liability.
(b) The accused may present evidence to prove his defense,
and damages, if any, arising from the issuance of a
provisional remedy in the case.

Sec. 7. Statement of judge.

During the hearing or trial of a case any statement made by
the judge with reference to the case, or to any of the parties,
witnesses or counsel, shall be made of record in the
stenographic notes.

Sec. 8. Suspension of actions.

The suspension of actions shall be governed by the
provisions of the Civil Code.
Art. 2030. Every civil action or proceeding shall be
suspended:
(1) If willingness to discuss a possible compromise is
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.
Art. 2032. The court's approval is necessary in
compromises entered into by guardians, parents, absentee's
representatives, and administrators or executors of
decedent's estates.
Art. 2035. No compromise upon the following questions
shall be valid:
(1) The civil status of persons;

(c) The prosecution and the defense may, in that order,

present rebuttal and sur-rebuttal evidence unless the court,
in furtherance of justice, permits them to present additional
evidence bearing upon the main issue.
(d) Upon admission of the evidence of the parties, the case
shall be deemed submitted for decision unless the court
directs them to argue orally or to submit written
memoranda.

(2) The validity of a marriage or a legal separation;

(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime. (1814a)

(e) When the accused admits the act or omission

charged in the complaint or information but interposes
a lawful defense, the order of trial may be modified. (3a)

Sec. 6. Agreed statement of facts.

The parties to any action may agree, in writing, upon the
facts involved in the litigation, and submit the case for
judgment on the facts agreed upon, without the
introduction of evidence.
If the parties agree only on some of the facts in issue, the
trial shall be held as to the disputed facts in such order as
the court shall prescribe.

Sec. 9. Judge to receive evidence; delegation to clerk of

court.
The judge of the court where the case is pending shall
personally receive the evidence to be adduced by the
parties. However, in default or ex parte hearings, and in
any case where the parties agree in writing, the court
may delegate the reception of evidence to its clerk of
court who is a member of the bar. The clerk of court
shall have no power to rule on objections to any question
or to the admission of exhibits, which objections shall be
resolved by the court upon submission of his report and the
transcripts within ten (10) days from termination of the
hearing.

Notes of Marian Camille Chavez (November 14, 2011)

Civil Procedure
RULE 31
CONSOLIDATION OR SEVERANCE
The rationale for consolidation is to have all cases, which
are intimately related, acted upon by one branch of the
court to avoid the possibility of conflicting decisions being
rendered that will not serve the orderly administration of
justice.
Section 1. Consolidation.
When actions involving a common question of law or fact
are pending before the court, it may order a joint hearing
or trial of any or all the matters in issue in the actions; it
may order all the actions consolidated; and it may make
such orders concerning proceedings therein as may tend to
avoid unnecessary costs or delay.
Sec. 2. Separate trials.
The court, in furtherance of convenience or to avoid
prejudice, may order a separate trial of any claim, crossclaim, counterclaim, or third-party complaint, or of any
separate issue or of any number of claims, cross-claims,
counterclaims, third-party complaints or issues.

RULE 2
Sec. 5. Joinder of causes of action.
A party may in one pleading assert, in the alternative or
otherwise, as many causes of action as he may have
against an opposing party, subject to the following
conditions:
(a) The party joining the causes of action shall comply
with the rules on joinder of parties;
(b) The joinder shall not include special civil actions or
actions governed by special rules;
(c) Where the causes of action are between the same parties
but pertain to different venues or jurisdictions, the joinder
may be allowed in the Regional Trial Court provided one of
the causes of action falls within the jurisdiction of said
court and the venue lies therein; and
(d) Where the claims in all the causes of action are
principally for recovery of money, the aggregate amount
claimed shall be the test of jurisdiction.
RULE 3
Sec. 6. Permissive joinder of parties.
All persons in whom or against whom any right to relief in
respect to or arising out of the same transaction or series
of transactions is alleged to exist, whether jointly,
severally, or in the alternative, may, except as otherwise
provided in these Rules, join as plaintiffs or be joined as
defendants in one complaint, where any question of law or

fact common to all such plaintiffs or to all such

defendants may arise in the action; but the court may
make such orders as may be just to prevent any plaintiff
or defendant from being embarrassed or put to expense in
connection with any proceedings in which he may have no
interest.
Sec. 7. Compulsory joinder of indispensable parties.
Parties in interest without whom no final determination can
be had of an action shall be joined either as plaintiffs or
defendants.
Sec. 9. Non-joinder of necessary parties to be pleaded.
Whenever in any pleading in which a claim is asserted a
necessary party is not joined, the pleader shall set forth his
name, if known, and shall state why he is omitted. Should
the court find the reason for the omission unmeritorious, it
may order the inclusion of the omitted necessary party if
jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion,
without justifiable cause, shall be deemed a waiver of the
claim against such party.
The non-inclusion of a necessary party does not prevent the
court from proceeding in the action, and the judgment
rendered therein shall be without prejudice to the rights of
such necessary party.
Sec. 11. Misjoinder and non-joinder of parties.
Neither misjoinder nor non-joinder of parties is ground for
dismissal of an action. Parties may be dropped or added by
order of the court on motion of any party or on its own
initiative at any stage of the action and on such terms as are
just. Any claim against a misjoined party may be severed
and proceeded with separately.
JOINDER OF CAUSES
OF ACTION

CONSOLIDATION

Filing of Initiatory or
Responsive Pleading
(May in one pleading)

Pendency of Actions

As many causes of action

(In the alternative or
otherwise); necessary to
ask WON the causes arose
out of the same or series
when there are multiple
plaintiffs or defendants

Actions involving common

questions of law or fact

The party may assert (as a

a matter of right or with
leave of court; amendment
rule may apply); court
decides if proper

Court may order (or by

motion)

Mis/non- joinder not a

Court determines (if by

Notes of Marian Camille Chavez (November 14, 2011)

Civil Procedure
ground for dismissal (not
motion) WON the consolidacompulsory, but permissive tion is proper / Court may
on the part of the party)
order separate trial
JOINDER OF PARTIES

CONSOLIDATION

Neither misjoinder nor

non-joinder of parties is
ground for dismissal of
an action.
Parties may be dropped or
added by order of the court
on motion of any party or
on its own initiative at any
stage of the action;
Non-inclusion of a necessary
party does not prevent the
court from proceeding in the
action

Court determines (if by

motion) WON the consolidation is proper / Court may
order separate trial

out of the same or series

Common question of law or
of transactions; common
fact
question of law or fact
(NOTE: permissive joinder)

Active vs. CA
FACTS
Active Wood mortgaged parcels of land in favour of State
Investment House in order to secure its indebtedness.
Subsequently, it led to a foreclosure and the lands
auctioned off, and State Investment became the highest
bidder.
State Investment filed a civil case to declare the foreclosure
null and void. And during its pendency, State Investment
House filed a case for writ of possession of the lands.
In this LRC case, Active moved to consolidate the said
cases. The judge in the LRC cases granted said motion for
consolidation. However, the judge in the Civil Case
opposed to the objection of the consolidation, returning the
LRC case to its original branch.
HELD
The consolidation is proper.
The rationale for consolidation is to have all cases, which
are intimately related, acted upon by one branch of the
court to avoid the possibility of conflicting decisions being
rendered that will not serve the orderly administration of
justice.
State Investment argues that the rules mention only
actions, which means an ordinary suit in a court of justice
by which one party prosecutes another for the enforcement
or protection of a right, or the prevention or redress of a
wrong. Civil Case No. 6518-M is such an action. On the
other hand, LRC Case No. P-39-84 involving the Petition
for a Writ of Possession is an ex parte proceedings and does
not require notice to be given to the other parties. The two,
action and proceedings, being different, can not be
consolidated.

The entire case must be litigated and if need be as in the

case at bar, must be consolidated with a related case so
as to thresh out thoroughly all related issues.
Thus in the case at bar, this technical difference between
an action and a proceeding becomes insignificant and
consolidation becomes a logical conclusion.
The consolidation of cases becomes mandatory because
it involves the same parties and the same subject matter
which is the same parcel of land.
Even in the Supreme Court which sits en banc or in three
divisions, the consolidation of cases with issues of fact or
law intimately or substantially related pending in the same
division or in different divisions, and en banc, be they
assigned to the same ponente or to different ponentes is
practically given or conceded to the ponente assigned to the
case with the lower number, i.e., the one filed earlier.

Superlines vs. Victor

FACTS
Bus of the Pantranco collided with Bus of Superlines,
resulting in the instantaneous death of a passenger of
Pantranco.
Superlines sued Pantranco in the RTC of Quezon for
damages (culpa-contractual). On the other hand, the widow
of the deceased sued Superlines for damages in the RTC of
Cavite City (quasi-delict). Superlines filed a motion to
dismiss on the ground of pendency of another action
(referring to the culpa-contractual case), of which motion
was denied, finding that the 2 cases involved different
parties and different cause of action.
Superlines argues that the widow should pursue their
claim for damages by intervening in the culpacontractual case to prevent multiplicity of suits.
HELD
There is, however, the more pragmatic solution to the
controversy at bar; and that is to consolidate the cases.
It is the Cavite court (quasi-delict), rather than the Gumaca
court (culpa-contractual), which serves as the more suitable
forum for the determination of the rights and obligations of
the parties concerned.
Why? To require private respondents who are all
residents of Kawit, Cavite, to litigate their claims in the
Quezon Court would unnecessarily expose them to
considerable expenses. On the other hand, no like
prejudice would befall the defendants transportation
companies if they were required to plead their causes in
Cavite, for such venue would not expose them to expenses
which they are not already liable to incur in connection
with the Gumaca case.

Consolidation of civil and criminal cases

Rule 111
Section 2. When separate civil action is suspended.
After the criminal action has been commenced, the
separate civil action arising therefrom cannot be

Notes of Marian Camille Chavez (November 14, 2011)

Civil Procedure
instituted until final judgment has been entered in the
criminal action.
If the criminal action is filed after the said civil action
has already been instituted, the latter shall be
suspended in whatever stage it may be found before
judgment on the merits. The suspension shall last until
final judgment is rendered in the criminal action.
Nevertheless, before judgment on the merits is rendered in
the civil action, the same may, upon motion of the offended
party, be consolidated with the criminal action in the court
trying the criminal action. In case of consolidation, the
evidence already adduced in the civil action shall be
deemed automatically reproduced in the criminal action
without prejudice to the right of the prosecution to
cross-examine the witnesses presented by the offended
party in the criminal case and of the parties to present
additional evidence. The consolidated criminal and civil
actions shall be tried and decided jointly.
(b) The criminal action for violation of Batas Pambansa
Blg. 22 shall be deemed to include the corresponding
civil action. No reservation to file such civil action
separately shall be allowed...
Where the civil action has been filed separately and
trial thereof has not yet commenced, it may be
consolidated with the criminal action upon application
with the court trying the latter case. If the application is
granted, the trial of both actions shall proceed in
accordance with section 2 of this Rule governing
consolidation of the civil and criminal actions. (cir. 57-97)

Consolidation on Appeal
Even in the Supreme Court which sits en banc or in three
divisions, the consolidation of cases with issues of fact or
law intimately or substantially related pending in the same
division or in different divisions, and en banc, be they
assigned to the same ponente or to different ponentes is
practically given or conceded to the ponente assigned to the
case with the lower number, i.e., the one filed earlier.

RULE 32
TRIAL BY COMMISSIONER
Section 1. Reference by consent.
By written consent of both parties, the court may order any
or all of the issues in a case to be referred to a
commissioner to be agreed upon by the parties or to be
appointed by the court. As used in these Rules, the word
"commissioner" includes a referee, an auditor and an
examiner.
Sec. 2. Reference ordered on motion.
When the parties do not consent, the court may, upon the
application of either or of its own motion, direct a reference

to a commissioner in the following cases:

(a) When the trial of an issue of fact requires the
examination of a long account on either side, in which case
the commissioner may be directed to hear and report upon
the whole issue or any specific question involved therein;
(b) When the taking of an account is necessary for the
information of the court before judgment, or for carrying a
judgment or order into effect;
(c) When a question of fact, other than upon the pleadings,
arises upon motion or otherwise, in any stage of a case, or
for carrying a judgment or order into effect.
Sec. 3. Order of reference; powers of the commissioner.
When a reference is made, the clerk shall forthwith
furnish the commissioner with a copy of the order of
reference. The order may specify or limit the powers of the
commissioner, and may direct him to report only upon
particular issues, or to do or perform particular acts, or to
receive and report evidence only, and may fix the date for
beginning and closing the hearings and for the filing of his
report. Subject to the specifications and limitations stated in
the order, the commissioner has and shall exercise the
power to regulate the proceedings in every hearing before
him and to do all acts and take all measures necessary or
proper for the efficient performance of his duties under the
order. He may issue subpoenas and subpoenas duces
tecum, swear witnesses, and unless otherwise provided in
the order of reference, he may rule upon the admissibility
of evidence. The trial or hearing before him shall proceed
in all respects as it would if held before the court.
Sec. 4. Oath of commissioner.
Before entering upon his duties the commissioner shall be
sworn to a faithful and honest performance thereof.
Sec. 5. Proceedings before commissioner.
Upon receipt of the order of reference and unless otherwise
provided therein, the commissioner shall forthwith set a
time and place for the first meeting of the parties or their
counsel to be held within ten (l0) days after the date of the
order of reference and shall notify the parties or their
counsel.
Sec. 6. Failure of parties to appear before
commissioner.
If a party fails to appear at the time and place appointed,
the commissioner may proceed ex parte or, in his
discretion, adjourn the proceedings to a future day,
giving notice to the absent party or his counsel of the
adjournment.
Sec. 7. Refusal of witness.
The refusal of a witness to obey a subpoena issued by the
commissioner or to give evidence before him, shall be

Notes of Marian Camille Chavez (November 14, 2011)

Civil Procedure
deemed a contempt of the court which appointed the
commissioner.

rule not unanimously, the judge would just choose what

would happen

Sec. 8. Commissioner shall avoid delays.

It is the duty of the commissioner to proceed with all
reasonable diligence. Either party, on notice to the parties
and commissioner, may apply to the court for an order
requiring the commissioner to expedite the proceedings and
to make his report.
Sec. 9. Report of commissioner.
Upon the completion of the trial or hearing or proceeding
before the commissioner, he shall file with the court his
report in writing upon the matters submitted to him by the
order of reference. When his powers are not specified or
limited, he shall set forth his findings of fact and
conclusions of law in his report. He shall attach thereto all
exhibits, affidavits, depositions, papers and the transcript, if
any, of the testimonial evidence presented before him.
Sec. 10. Notice to parties of the filing of report.
Upon the filing of the report, the parties shall be notified by
the clerk, and they shall be allowed ten (l0) days within
which to signify grounds of objections to the findings of
the report, if they so desire. Objections to the report based
upon grounds which were available to the parties during the
proceedings before the commissioner, other than objections
to the findings and conclusions therein set forth, shall not
be considered by the court unless they were made before
the commissioner.
Sec. 11. Hearing upon report.
Upon the expiration of the period of ten (l0) days referred
to in the preceding section, the report shall be set for
hearing, after which the court shall issue an order adopting,
modifying, or rejecting the report in whole or in part, or
recommitting it with instructions, or requiring the parties to
present further evidence before the commissioner or the
court.
Sec. 12. Stipulations as to findings.
When the parties stipulate that a commissioners findings
of fact shall be final, only questions of law shall thereafter
be considered.
Sec. 13. Compensation of commissioner.
The court shall allow the commissioner such reasonable
compensation as the circumstances of the case warrant, to
be taxed as costs against the defeated party, or apportioned,
as justice requires.

RULE 33
DEMURRER TO EVIDENCE
Section 1. Demurrer to evidence.
After the plaintiff has completed the presentation of his
evidence, the defendant may move for dismissal on the
ground that upon the facts and the law the plaintiff has
shown no right to relief.
NOTE:
The defendant may sincerely feel that the plaintiff has not
lived up to his burden of proving the material allegations of
his claim.
The demurrer, therefore, is an aid or instrument for the
expeditious termination of an action, similar to a motion
to dismiss.

Section 1. (Continued)
Effect of denial or grant of demurrer to evidence
If his motion is denied, he shall have the right to present
evidence.
NOTE:
1.

2.

Where a court denies, it should set the date for the

reception of the defendants evidence in chief, and not
proceed to grant the relief demanded by the plaintiff
(Northwest Airlines vs. CA)
An order denying is interlocutory, and is therefore
not appealable.

BUT! It can be the subject of a petition for certiorari in

case of grave abuse of discretion or an oppressive exercise
of judicial authority (Katigbak vs. Sandiganbayan)

Effect of granting of the demurrer to evidence

Section 1. (Continued)
If the motion is granted but on appeal the order of
dismissal is reversed he shall be deemed to have waived
the right to present evidence.
NOTES:

NOTES:

Effect: Case Dismissed

Usually in cases involving lands; Usually, the judge would,

in the end, decide on the case because if the commissioners

It is not correct for the appellate court reversing the order

granting the demurrer to remand the case to the trial court
for further proceedings. Instead of remanding, it should

Notes of Marian Camille Chavez (November 14, 2011)

Civil Procedure
have rendered judgment on the basis of the evidence
submitted by the plaintiff (Radiowealth Finance Corp. vs.
Del Rosario)
The requirement of Section 1 of Rule 36 would only
apply if the demurrer is granted; there would in fact be
an adjudication on the merits of the case, leaving nothing
more to be done, except perhaps to interpose an appeal.

Nepomuceno vs. Laserna

FACTS
Nepomuceno, et al were the official candidates of the
Nacionalista Party in the 1980 local elections for mayor,
vicemayor and member of the Sangguniang Bayan of Sta.
Rosa, Laguna. Laserna filed a petition before the
COMELEC to disqualify petitioners on the ground of
turncoatism. On COMELEC said petition, denying
petitioners' certificates of candidacy. Petitioners assailed
said resolution filed with the SC a restraining order was
issued, enjoining the COMELEC from enforcing the
resolution. As a result, Nepomuceno, et al. were allowed to
be voted and they won. THE SC remanded the cases to
the COMELEC to decide the cases after giving the
parties full opportunity to present all evidence relevant
to the issue of alleged turncoatism. The COMELEC
accordingly set for hearing on the merits. However,
Nepomuceno, et al. filed a motion to dismiss, alleging that
it being a pre-election case. COMELEC denied, and they
filed another petition with the SC, assailing the
COMELEC's resolution. Thereafter, Comelec proceeded
to hear the turncoatism case. After Laserna had
terminated the presentation of his evidence, the three
filed their respective Motions to Dismiss/Demurer to
Evidence, which were reasonably opposed by Laserna.
Comelec denied the demurrer to evidence.
HELD
Petitioners are obviously misled by the title of Rule 35 of
the Rules of Court, "Judgment on Demurer to Evidence."
Said Rule authorizes a judgment on the merits of the
case without the defendant having to submit evidence
on his part as the relief sought. The demurrer, therefore,
is an aid or instrument for the expeditious termination of an
action, similar to a motion to dismiss, which the court or
tribunal may either grant or deny.
It is thus apparent that the requirement of Section 1 of
Rule 36 would only apply if the demurrer is granted, for
in this event, there would in fact be an adjudication on the
merits of the case, leaving nothing more to be done, except
perhaps to interpose an appeal. However, a denial of the
demurrer is not a final judgment, but merely
interlocutory in character as it does not finally dispose
of the case, the defendant having yet the right to present
his evidence, as provided for under Section 1 of Rule 35.
The challenged order being merely an interlocutory
order and not a final judgment or decision, no abuse of
discretion was committed by respondent Comelec in its
failure to state the facts and the law on which its order
denying petitioners' demurrer to evidence is based.

NOTE:
The provision governing demurrer to evidence does not
apply to an election case. (Gementiza vs. COMELEC)

Demurrer to evidence vs. Motion to Dismiss (Rule 16)

Rule 33

Rule 16

After plaintiff rests its case

Before filing of responsive

pleading

Plaintiff has shown no

right of relief

10 grounds

If granted, case dismissed

If granted, case dismissed,

Remedy depends:
With prejudice appeal
Without prejudice refile

If granted, but on appeal,

order of dismissal is
reversed, defendant is
deemed to have waived the
right to present evidence
If denied, defendant may
present evidence

If denied, defendant may

file responsive pleading

By way of motion

By way of motion

Demurrer to evidence: Civil and Criminal

Rule 33

Rule 119 Sec 23

No LOC required

With LOC

If denied, defendant may

Present evidence

With LOC- If denied,

accused presents evidence
Without LOC
If denied, accused cannot
present evidence

If granted, case dismissed

If granted, accused is
acquitted

Judgment of dismissal is
appealable

Judgment not appealable,

immediately executor

If demurrer is granted but

on appeal, order is reversed,
defendant is deemed to have
waived the right to present
evidence
NOTE: no res judicata in
Dismissal due to demurrer
Plaintiff files motion to deny Court may motu proprio deny
Motion due to demurrer

Notes of Marian Camille Chavez (November 14, 2011)

Civil Procedure

RULE 34
JUDGMENT ON THE PLEADINGS
Section 1. Judgment on the pleadings.
Where an answer fails to tender an issue, or otherwise
admits the material allegations of the adverse partys
pleading, the court may, on motion of that party, direct
judgment on such pleading. However, in actions for
declaration of nullity or annulment of marriage or for
legal separation, the material facts alleged in the
complaint shall always be proved.

Manufacturers v. Diversfied
FACTS
Diversified was granted a loan, and having failed to pay
when it became due and demandable, Manufacturers Bank
& Trust Co. sued Diversified.
Manufacturers Bank moved for judgment on the
pleadings. It adverted to the Diversified's admissions of
the parties' personal circumstances and the fact that
they were granted a loan. The Agreement for Credit in
Current Account which the defendants had expressly
admitted clearly stated that the loan would automatically
be due and payable on February 26, 1965 and that
attorney's fees would be payable at the rate of 10% of
amount due.
And by letter, Diversified wrote the bank requesting
that they be allowed to pay the obligation by
installments.
Diversified filed an opposition to the bank's motion for
judgment on the pleadings. They theorized that since
there was no allegation that they had in fact made
drawings against the overdraft account, no obligation to
pay a sum of money had been pleaded and therefore,
the complaint failed to state a cause of action.
Diversifed filed a motion for leave to amend their answer,
but was denied, and the Court rendered judgment on the
pleadings. It opined that the original answer failed to tender
any issue, the defendants' asserted lack of knowledge or
information regarding matters principally and necessarily
within their knowledge could not be considered a specific
denial.
HELD
The correctness, therefore, of the Trial Court's denial of the
motion to amend answer and the propriety of the assailed
judgment on the pleadings are beyond civil. Amendment in
the circumstances was clearly subject to said Court's
discretion the exercise of which cannot be faulted; and the
defendants' original answer in truth tendered no issue,
or otherwise admitted the allegations of the complaint
material and necessary to a valid decision.
Their motion merely declared that they had failed to
include certain allegations and defenses in their original
answer, but gave no explanation for their failure to do so at
the time they drew up that pleading or within a reasonable
time thereafter, and why they had not essayed such
amendment until after 2 years and only after their receipt of

plaintiff bank's motion for judgment on the pleadings

which cited certain serious defects of their answer.

RULE 35
SUMMARY JUDGMENTS
NOTES: (from Natalia vs. Vallez)
1. It is a device for weeding out sham claims or defenses
at an early stage of the litigation, thereby avoiding the
expense and loss of time involved in a trial.
2. Summary judgment should not be granted where it
fairly appears that there is a triable issue to be tried.
3. The test, therefore, of a motion for summary judgment
is whether the pleadings, affidavits and exhibits
in support of the motions are sufficient to overcome
the opposing papers and to justify a finding as a
matter of law that there is no defense to the action
or the claim is clearly meritorious.
4. In proceedings for summary judgment, the burden of
proof is upon the plaintiff to prove the cause of
action and to show that the defense is interposed
solely for the purpose of delay.
5. After plaintiffs burden has been discharged, defendant
has the burden to show facts sufficient to entitle him to
defend.
6. To resolve whether or not there is a factual
controversy, the pleadings and documents on file and
an analysis are both indispensable and decisive.

Section 1. Summary judgment for claimant.

A party seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declaratory relief may, at any
time after the pleading in answer thereto has been
served, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor upon all
or any part thereof.
Sec. 2. Summary judgment for defending party.
A party against whom a claim, counterclaim, or cross-claim
is asserted or a declaratory relief is sought may, at any
time, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor as to all or
any part thereof.
Sec. 3. Motion and proceedings thereon.
The motion shall be served at least ten (10) days before the
time specified for the hearing. The adverse party may serve
opposing affidavits, depositions, or admissions at least
three (3) days before the hearing. After the hearing, the
judgment sought shall be rendered forthwith if the
pleadings, supporting affidavits, depositions, and
admissions on file, show that, except as to the amount of
damages, there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment
as a matter of law.

Notes of Marian Camille Chavez (November 14, 2011)

Civil Procedure

Sec. 4. Case not fully adjudicated on motion.

If on motion under this Rule, judgment is not rendered
upon the whole case or for all the reliefs sought and a
trial is necessary, the court at the hearing of the motion,
by examining the pleadings and the evidence before it and
by interrogating counsel shall ascertain what material
facts exist without substantial controversy and what are
actually and in good faith controverted. It shall
thereupon make an order specifying the facts that
appear without substantial controversy, including the
extent to which the amount of damages or other relief is not
in controversy, and directing such further proceedings in
the action as are just. The facts so specified shall be
deemed established, and the trial shall be conducted on the
controverted facts accordingly.
Sec. 5. Form of affidavits and supporting papers.
Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters
stated therein. Certified true copies of all papers or parts
thereof referred to in the affidavit shall be attached thereto
or served therewith.
Sec. 6. Affidavits in bad faith.
Should it appear to its satisfaction at any time that any of
the affidavits presented pursuant to this Rule are presented
in bad faith, or solely for the purpose of delay, the court
shall forthwith order the offending party or counsel to
pay to the other party the amount of the reasonable
expenses which the filing of the affidavits caused him to
incur, including attorneys fees. It may, after hearing,
further adjudge the offending party or counsel guilty of
contempt.

Vergara vs. Suelto

FACTS
Vergara commenced in the MTC of Davao City an action
for illegal detainer against Guinoo, et al.
He alleges that they all defaulted in the payment of their
rentals for many months, and that they wrote Vergara,
while acknowledging the latter's ownership of the building
and their status as lessees they announced their refusal to
vacate. They claim that they had been occupying the
premises in the concept of an owner.
Vergara later filed a Motion Summary Judgment. He
wish to substantiate propositions among others that
their answer is patently defective, since it flatly denies
their own personal circumstances, and professes lack of
knowledge in spite of the exchange of letters. This was
opposed.
Vergara submitted a reply, adverting to the distinction
between a summary judgment under Rule 34 and a
judgment on the pleadings under Rule 19, and reiterating

and amplifying the propositions and arguments set out in

his motion for summary judgment.
Trial Court denied the summary judgment saying that it
appears from the answer that the material allegations of
facts in the complaint constituting plaintiff's cause of action
are specifically denied and in addition thereto, defendants
have put up affirmative defenses in avoidance of plaintiff's
claims.
HELD
For applicability of Summary Judgment, the
fundamental issue is not whether the answer does
tender valid issues as by setting forth specific denials
and/or affirmative defenses but whether the issues thus
tendered are genuine, or fictitious, sham, characterized
by bad faith.
An answer FAILS tender issue if it does not comply with
the requirements for a specific denial set out in Section 10
(or Section 8) of Rule 8; and it would admit the material
allegations of the adverse party's pleadings not only where
it expressly confesses the truthfulness thereof but also if it
omits to deal with them at all.
If an answer does, affirmative defenses (allegations of new
matter which, while admitting the material allegations of
the complaint expressly or impliedly, would nevertheless
prevent or bar recovery by the plaintiff) are asserted in
accordance with Sections 4 and 5 of Rule 6. Judgment on
the pleadings would naturally not be proper.
However, summary judgement may be rendered if he
can show to the Court's satisfaction that "except as to the
amount of damages, there is no genuine issue as to any
material fact."
In this case, the defendants' answer appears on its face to
tender issues. But the issues thus tendered are sham, not
genuine. Therefore, judgment should be directed as a
matter of right in the plaintiff's favor.

Diman vs. Alumbres

FACTS
A complaint was filed for quieting of title by Heirs of
Lacalle against the Dimans. The heirs claimed that their
mother was the owner of a certain parcel of land in Las
Pinas. When their mother bought it, the Narios were
occupying the lot. However, the Narios were ordered to
vacate the land upon the order of the court (in a complaint
for ejectment filed by the Dimans)
In their answer in the quieting of title complaint, the
Dimans aver that they own the land and they had the
right to eject the Narios.
After joinder of the issues, the Dimans served on the heirs
of Lacalle a request for admission of the truth of certain
matters (like the fact that the Lacalle heirs TCTs were
not registered and that the Dimans TCTs were). This
request was received but the Lacalle heirs did not
respond.
The Dimans then submitted a motion for summary
judgment, arguing further that the matters they brought up
in the request for admission be deemed admitted. Dimans
basically asserted that since no genuine issue existed, a
summary judgment be entered dismissing the quieting of

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Notes of Marian Camille Chavez (November 14, 2011)

Civil Procedure
title case. This was motion was denied by the court, stating
that since both parties claim ownership over the land
and that the presentation of evidence was required to
determine factual issues.
In trial, the Lacalle heirs presented very little evidence
(they couldnt produce the original copy of the TCT
showing that the land was registered in their mothers
name, only a Xerox copy).
After the heirs rested their case, Dimans filed a motion for
judgment on demurrer to evidence, alleging that the
evidence of the heirs was weak. This was, however,
denied.
HELD
The court should dismiss the quieting of title case. This is
because there was NO genuine issue. The issues arising
from the pleadings were fake.
When the heirs failed to respond to the request admission,
they were deemed to have admitted all the facts in the
request for admission.
When a summary judgment is proper and when a judgment
on the pleadings is proper:
Summary Judgment: Although the pleadings on their face
appear to raise issues of fact (like a denial/conflict of
factual allegations), if it is shown by admission,
depositions or affidavits, that those issues are fake (not
genuine except as to the amount of damages), the court
shall render summary judgment for whoever asks for it
(plaintiff or defendant); Judgment on the facts as
summarily proven by the A/D/A
Judgment on the pleadings: Here, there is no issue at all.
Judgment on the facts as pleaded. Only claimant can file.
The judge made a mistake in denying the motion for
summary judgment as he stated that there was a material
issue raised in the pleadings (he obviously had judgment on
the pleadings in mind, for his reasons were reasons to
DENY a motion for judgment on the pleadings!)
Also, it was obvious that the heirs did not have title to their
land. They did not present sufficient evidence to prove their
claim.

Natalia Realty vs. Vallez

FACTS
The complaints (5 consolidated) were for ejectment,
Natalia alleging that the defendants unlawfully occupied
portions of its parcels of land. It was prayed that defendants
be adjudged without valid right whatsoever in said land,
that they be ordered to vacate the same and to pay the
reasonable compensation and financial reliefs stated in the
respective complaints against them.
After filing their consolidated answer, defendants sought
the dismissal of all the complaints on the ground of lack of
jurisdiction, which motion was denied.
Natalia moved for a summary judgment on the
consolidated cases under Rule 34 of the Rules of Court.

Annexed to said motion is the affidavit of the Natalia's

executive vice-president, Eugenia Oliveros, attesting to
the truth of the averments therein. An opposition was
filed by defendants.
TC: Rendered a summary judgment in favour of
Natalia; no valid issue was raised by defendants but only
conclusions that:

Because they have been in actual possession for over

30 years of their respective farm lots they are entitled
to be respected of such occupancy; the complaints
should be dismissed

That the titles of plaintiff are null and void ab

initio and should be cancelled

And in lieu thereof issued new certificates of titles to

the defendants (land reform program)
HELD
The rendition of the questioned summary judgment by
the trial court is proper and valid.
Defendants pontificate that only three kinds of actions are
available to recover possession of real property, that is,
forcible entry or illegal detainer, accion
publiciana, and accion de reivindicacionwhich actions,
according to them, cannot be availed of by the plaintiff
because the only issue in all the three kinds of actions is
possession which the plaintiff allegedly never had from the
beginning. They relied mainly on two points, the alleged
invalidity of the title of the plaintiff and their supposed
acquisition of the properties by adverse possession.
The certificates of title issued in the name of the
plaintiff in accordance with the Land Registration Act
is indefeasible after the expiration of one year from the
entry of the decree of registration. The certificates of title
of appellee corporation were issued more than thirty years
ago.
Even assuming arguendo that said titles may still be
challenged, the present case does not provide the vehicle
for that remedy since the judicial action required is a direct,
and not a collateral, attack.
Appellants' claim of acquisitive prescription is likewise
baseless. Correlatively, Act No. 496 provides that no
title to registered land in derogation of that of the
registered owner shall be acquired by adverse
possession.
Apparently, appellants were misled or induced to believe
that they acquired the parcels of land in question when the
whole country was declared by the previous regime as a
land reform area.

Grand Farms vs. CA

FACTS
Petitioners filed a Civil Case for annulment and/or
declaration of nullity of the extrajudicial foreclosure
proceedings over their mortgaged properties, with damages,
against respondents clerk of court, deputy sheriff and
private respondent Banco Filipino Savings and Mortgage
Bank.
Private respondent had filed its answer to the complaint.

11

Notes of Marian Camille Chavez (November 14, 2011)

Civil Procedure
Petitioners filed a request for admission by private
respondent of the allegation that no formal notice of
intention to foreclose the real estate mortgage was sent
by private respondent to petitioners.
Private respondent, through its deputy liquidator, responded
under oath to the request and countered that petitioners
were notified of the auction sale.
On the basis of the alleged implied admission by private
respondent that no formal notice of foreclosure was sent
to petitioners, the latter filed a motion for summary
judgment contending that the foreclosure was violative
of the provisions of the mortgage contract, specifically
paragraph (k) thereof which provides:
k) All correspondence relative to this Mortgage,
including demand letters, summons, subpoena or
notifications of any judicial or extrajudical actions
shall be sent to the Mortgagor at the address given
above or at the address that may hereafter be given in
writing by the Mortgagor to the Mortgagee, and the
mere act of sending any correspondence by mail or by
personal delivery to the said address shall be valid and
effective notice to the Mortgagor for all legal
purposes, and the fact that any communication is not
actually received by the Mortgagor, or that it has been
returned unclaimed to the Mortgagee, or that no
person was found at the address given, or that the
address is fictitious, or cannot be located, shall not
excuse or relieve the Mortgagor from the effects of
such notice;
The motion was opposed by private respondent which
argued that petitioners' reliance on said paragraph (k) of the
mortgage contract fails to consider paragraphs (b) and (d)
of the same contract.
The trial court issued an order, denying petitioners'
motion for summary judgment.
HELD
The RTC erred in denying the petition for summary
judgment.
There has been no denial by private respondent that no
personal notice of the extrajudicial foreclosure was ever
sent to petitioners prior thereto.
This omission, by itself, rendered the foreclosure defective
and irregular for being contrary to the express provisions of
the mortgage contract.
There is thus no further necessity to inquire into the other
issues cited by the trial court, for the foreclosure may be
annulled solely on the basis of such defect.
While private respondent was constituted as their attorneyin-fact by petitioners, the inclusion of paragraph (k) in the
mortgage contract nonetheless rendered personal notice to
the latter indispensable.

12