CivProc Reviewer2016

San Beda College of Law
10
MEMORY AID
IN
REMEDIAL LAW
CIVIL PROCEDURE
REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

10
MEMORY AID
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
One party prosecutes

The moment said
another for the
claim is filed before a
enforcement or
court, the claim is
protection of a right
converted into an
or the prevention or
action or suit.
redress of a wrong.
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
IN
REMEDIAL LAW
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 is important in determining

the EFFECT of the judgment.
(C)
REAL
ACTION
PERSONAL
ACTION
MIXED
ACTION
Ownership or personal property is Both real and

possession of
sought to be
personal
real property is recovered or where properties are
involved
damages for breach
involved
of contract are
sought
Founded on
Founded on privity Founded on
privity of
of contract
both
estate
ex. Accion
Ex. Action for a sum ex. Accion
reinvidicatoria
of money
publiciana
with a claim
for damages
The distinction is significant in the

determination of venue. With respect to
mixed actions, the rules on venue of real
actions shall govern, i.e., where the real
property is located.
(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
Ex. Action to recover

real property
Ex. Action to recover

sum of money
Section 5. Commencement of action.

An action is commenced by:
1. filing of the complaint (the date of the
filing determines whether or not the
action has already prescribed); and

Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

11
MEMORY AID
2. payment of the requisite docket fees
(determined on the basis of the
amount of the claim including the
damages indicated in body or the
prayer of the pleading)
It is not simply the filing of the
complaint or the appropriate initiatory
pleading but also the payment of the
prescribed docket fee that vests a trial
court with jurisdiction over the subject
matter or nature of the action.
The court may allow the payment of the
deficient docket fee within a reasonable
period but not beyond the applicable
prescriptive or reglementary period.
An action can be commenced by filing
the complaint by registered mail. In
which case, it is the date of mailing that
is considered as the date of filing, and
not the date of the receipt thereof by
the clerk of court.
The date of the filing of an amended
complaint joining additional defendant is
the date of the commencement of the
action with regard to such additional
defendant.
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
delict or wrongful act remedial right or right

or omission committed to relief granted by
by the defendant in
law to a party to
IN
REMEDIAL LAW
violation of the
institute an action
primary rights of the against a person who
plaintiff
has committed a delict
or wrong against him
The reason for the
the remedy or means
action
afforded or the
consequent relief
the formal statement right that is given
of alleged facts
the right to litigate
because of the
occurrence of the
alleged facts
Determined by facts
determined by
as alleged in the
substantive law
complaint and not the
prayer therein
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
the plaintiff
prays the court
to render in his
favor as a
consequence of
the delict
committed by
the defendant
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.
Section 4. Splitting a single cause of

action, effect of.
SPLITTING OF CAUSE OF ACTION is the
practice of dividing one cause of action into
different parts and making each part subject
of a separate complaint.
Applies NOT only to complaints but also to
counterclaims and crossclaims.
Remedy against splitting a single cause of
action:
A. Motion to dismiss on the ground of:
Litis
pendentia, if the first
complaint is still pending (Rule 16,
Sec. 1[e]); or
Res
judicata, if any of the
complaints is terminated by final
judgment (Rule 16, Sec. 1[f])


12
MEMORY AID
B. An answer alleging either of the
above-cited grounds as affirmative
defense (Rule 16, Sec. 6)
General Rule on Divisible Contract
A contract to do several things at several
times is divisible, and judgment for a
single breach of a continuing contract is
not a bar to a suit for a subsequent
breach.
Doctrine of Anticipatory Breach
Even if the contract is divisible in its
performance and the future periodic
deliveries are not yet due, if the obligor
has already manifested his refusal to
comply with his future periodic
obligations, the contract is entire and
the breach total, hence there can only
be one action for damages (Blossom &
Co. vs. Manila Gas Corp., 55 Phil. 226)
Section 5. Joinder of causes of action.
Rule in this section is PERMISSIVE and the
plaintiff can always file a separate
action for each cause of action.
Par. (a): The joinder of causes of action
may involve the same or different
parties. If the joinder involved different
parties, it must comply with Sec. 6 Rule
3, thus, there must be a question of fact
or law common to both parties joined
arising out of the same or series of
transactions.
Par. (b) requires that: only causes of
action in ordinary civil actions may be
joined, obviously because they are
subject to the same rules.
Par. (c) As long as one cause of action
falls within the jurisdiction of the RTC,
the case can be filed there even if the
MTC has jurisdiction over the others.
Pars. (d) embodies the TOTALITY RULE
Section 33 BP129, as amended by RA
7691 - Where there are several claims or
causes of actions between the same or
different parties, embodied in the same
complaint, the amount of the demand
shall be the totality of the claims in all
the causes of actions, irrespective of
whether the causes of action arose out
of the same or different transactions.
SPLITTING OF
JOINDER OF
CAUSE OF ACTION CAUSES OF ACTION
There is a single cause Contemplates several
of action
causes of action
PROHIBITED. Causes
multiplicity of suits
and double vexation
on the part of the
defendant
IN
REMEDIAL LAW
ENCOURAGED.
Minimizes multiplicity
of suits and
inconvenience on the
parties
Section 6. Misjoinder of causes of action.

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 be parties; plaintiff
and defendant.
REQUIREMENTS FOR A PERSON TO BE A
PARTY TO A CIVIL ACTION:
1. he must be a natural or juridical person
or an entity authorized by law;
2. he must have a legal capacity to sue;
and
3. he must be the real party in interest.
PLAINTIFFS- Those having an interest in the
subject matter of the action or in obtaining
the relief demanded.
DEFENDANTS:
1. persons who claim an interest in the
controversy or the subject thereof
adverse to the plaintiff; or
2.
who are necessary to a complete

determination or settlement of the
questions involved therein; or
3. all those who ordinarily should be joined

as plaintiffs but who do not consent
thereto, the reason therefore being
stated in the complaint.
Neither a dead person nor his estate may be
a party plaintiff in a court action
Considering that capacity to be sued is
correlative of the capacity to sue, to the
same extent, a decedent does not have the
capacity to be sued and may not be named a
party defendant in a court action (Ventura
vs. Militante 316 SCRA 226).
Section 3. Representatives as parties.
REAL PARTY IN INTEREST the party who
stands to be benefited in the suit or the
party entitled to the avails of the suit.


13
MEMORY AID
Impleading the beneficiary as a party in
the suit is now mandatory, in cases
allowed to be prosecuted or defended by
a representative.
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
Under the present rule, a person need

not be judicially declared to be
incompetent in order that the court may
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.
IN
REMEDIAL LAW
Requisites of permissive joinder of parties.

1. Right to relief arises out of the same
transaction or series of transactions;
2. There is a question of law or fact
common to all the plaintiffs or
defendants; and
3. Such joinder is not otherwise proscribed
by the provisions of the Rules on
jurisdiction and venue.
SERIES OF TRANSACTIONS transactions
connected with the same subject of the
action.
INDISPENSABLE
PARTIES
NECESSARY
PARTIES
The action cannot

proceed unless they
are joined
The action can

proceed even in the
absence of some
necessary parties
No valid judgment if
indispensable party is
not joined
The case may be

determined in court
but the judgment
therein will not
resolve the entire
controversy if a
necessary party is not
joined
They are those with

such an interest in the
controversy that a
final decree would
necessarily affect their
rights so that the court
cannot proceed
without their presence
They are those whose

presence is necessary
to adjudicate the
whole controversy but
whose interests are so
far separable that a
final decree can be
made in their absence
without affecting
them
JOINT DEBTORS indispensable party with

respect to own share and a necessary party
with respect to the share of the others.
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
parties to be pleaded.
of
necessary
of
The non-inclusion of a necessary party may

be excused only on meritorious grounds.
PERMISSIVE JOINDER the aggregate

sum of all the claims, determines the
jurisdiction of the court.
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
Section
parties.
6.
Permissive
joinder


14
MEMORY AID
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.
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.
Section 12. Class suit.

REQUISITES
OF
A
CLASS
/REPRESENTATIVE SUIT.
1. subject
matter
of
the
controversy is one of common or
general
interest
to
many
persons;
2. parties affected are so numerous
that it is impracticable to bring
them all before the court;
3. parties bringing the class suit are
sufficiently
numerous
or
representative of the class and
can fully protect the interests of
all concerned.
Class Suit
Permissive Joinder
of Parties
There is one single

cause of action
pertaining to
numerous persons
There are multiple

causes of action
separately belonging
to several persons.
IN
REMEDIAL LAW
Section 14. Unknown identity or name of

defendant.
Requisites:
1. there is a defendant
2. his identity or name is unknown
3. fictitious name may be used because
of ignorance of defendants true
name and said ignorance is alleged
in the complaint
4. identifying description may be used:
sued as unknown owner, heir,
devisee, or other designation
5. amendment to the pleading when
identity or true name is discovered
6. defendant is the defendant being
sued, not a mere additional
defendant
Service of summons upon a defendant whose
identity is unknown may be made by
publication in a newspaper of general
circulation in accordance with Section 14 of
Rule 14.
Section 15. Entity without

personality as defendant.
juridical
They may be sued under the name by which

they are generally known, but they cannot
sue under such name for lack of juridical
personality.
The service of summons may be effected
upon all the defendants by serving upon any
of them, or upon the person in charge of the
office or place of business maintained under
such name. (Sec. 8, Rule 14)
INSTANCES WHERE
PARTIES IS PROPER:
SUBSTITUTION
OF
A. Death of party; duty of counsel (Sec.

16)
This provision applies where the claim is not
thereby extinguished as in cases involving
property and property rights such as:
1. recovery of real and personal
property against the estate.
2. enforcement of liens on such
properties
3. recovery for an injury to person or
property by reason of tort or delict
committed by the deceased.
In this case, the heirs will be substituted for
the deceased OR if no legal representative is
named then the court will order the
opposing party to procure the appointment


15
MEMORY AID
of an executor or administrator for the
estate of the deceased.
IN
REMEDIAL LAW
In case of minor heirs, the court may

appoint a guardian ad litem for them.
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.
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
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 there is failure to notify the fact of

death: the case may continue and
proceedings will be held valid, and
judgment will bind the successors in
interest.
B. Death or separation of a party who
is a public officer (Sec. 17)
The action may be maintained by and
against his successor.
The action contemplated here is one
brought against the public officer in his
official capacity.
C. Supervening Incompetence or
incapacity of a party (Sec. 18)
The action shall continue to be
prosecuted by or against him, personally
or assisted by the corresponding
guardian.
D. Transfer of interest (Sec. 19)
Substitution of parties in this section is
NOT mandatory, it being permissible to
continue the action by or against the
original party in case of transfer of
interest pendente lite. Unless the
substitution by or the joinder of the
transferee is required by the court,
failure to do so does not warrant the
dismissal of the case. A transferee
pendente lite is a proper, and not an
indispensable party.
The case will be dismissed if the interest
of plaintiff is transferred to defendant
UNLESS there are several plaintiffs, in
which case, the remaining plaintiffs can
proceed with their own cause of action.
Section 20. Action
money claims.
on
Requisites:
contractual
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 self-supporting 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
VENUE the place where an action must be
instituted and tried.
VENUE
JURISDICTION
Place where the action Power of the court to

is instituted
hear and decide a case
May be waived
Jurisdiction over the

subject matter and
over the nature of the
action is conferred by
law and cannot be
waived
Procedural
Substantive
May be changed by the Cannot be the subject

written agreement of
of the agreement of
the parties
the parties
The rule on VENUE IS NOT APPLICABLE in

cases


16
MEMORY AID
1) Where a specific rule or law
provides otherwise; or
2) The parties have validly agreed
in writing before the filing of the
action on the exclusive venue
thereof (Sec. 4).
Requisites for venue to be exclusive
1. A valid written agreement
2. Executed by the parties before
the filing of the action; and
3. Exclusive nature of the venue.
In the absence of qualifying or restrictive
words, venue stipulation is merely
permissive meaning that the stipulated
venue is in addition to the venue
provided for in the rule (Polytrade Corp.
vs. Blanco 30 SCRA 187)
Section 1. Venue of real actions.
If property is located at the boundaries
of two places: file one case in either
place at the option of the plaintiff.
If case involves two properties located
in two different places:
1. If the properties are the object
of the same transaction, file it in
any of the two places.
2. If they are the subjects of two
distinct transactions, separate
actions should be filed in each
place unless properly joined.
IN
REMEDIAL LAW
Section 3. Venue of actions against nonresidents.

RULES
1. NON-RESIDENT FOUND IN THE PHIL.
a. for personal actions where

the plaintiff resides; and
b. for real actions where the
property is located.
2. NON RESIDENT NOT FOUND IN THE
PHIL.
An action may be filed only
when the case involves:
a. Personal status of plaintiff
venue:
where
plaintiff
resides;
b. Any
property
of
said
defendant located in the
Phil. venue: where the
property or any portion
thereof is situated or found.
The Supreme Court has the power to order a
change of venue to prevent a miscarriage of
justice.
Dismissal of Action for Improper Venue
The court may not motu propio dismiss a
complaint on the ground of improper venue.
An exception is provided in Section 4 of the
Revised Rule on Summary Procedure.
Section 2. Venue of personal actions.

RESIDENCE the place where the party
actually resides with continuity and
consistency, whether permanent or
temporary, at the time the action is
instituted.
RULES ON SUMMARY PROCEDURE
SUMMARY PROCEDURE IN CIVIL CASES
Means of waiving venue:

1. failure to object via motion to
dismiss
2. affirmative relief sought in the
court where the case is filed
3. voluntary submission to the
court where the case is filed
4. laches


17
MEMORY AID
Filing of verified
complaint with the
MTC
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
Preliminary
conference w/in 30
days after last
answer is filed
W/in 5 days after

conference, court
issues record of
preliminary
conference
If plaintiff fails to
appear
in
prelim
conference, complaint
may be dismissed.
Defendant entitled to
decision based on his
counterclaim.
All
crossclaims dismissed.
If sole defendant
fails to appear,
plaintiff entitled to
judgment based on
complaint and
what is proved
therein
W/in 10 days from

receipt of order,
submission by the
parties of affidavits
and position papers
The Court should not dismiss the

complaint
or
Rendition of judgment
counterclaim if they
w/in 30 days from
receipt of last
are not verified.
affidavit, or w/in 15
The requirement is
days after last
merely a formal
clarificatory paper
one,
and
not
jurisdictional. It should therefore simply
direct the party concerned to have it
verified.
PROHIBITED PLEADINGS / MOTIONS
UNDER THE RULE ON SUMMARY
PROCEDURE.
IN
REMEDIAL LAW
1. Motion to dismiss the complaint or

to
quash
the
complaint
or
information except on the ground of
lack of jurisdiction over the subject
matter or failure to comply with
prior barangay conciliation (referral
to the Lupon)
2. Motion for a bill of particulars
3. Motion for a new trial or for
reconsideration of a judgment or for
reopening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file
pleadings, affidavits, or any other
paper
6. Memoranda
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court
8. Motion to declare defendant in
default
9. Dilatory motions for postponement
10. Reply
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 cross-examination 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


18
MEMORY AID
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.
IN
REMEDIAL LAW
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.
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.
KATARUNGANG PAMBARANGAY LAW

(Title One, Book III, RA 7160)
No complaint, petition, action, or

proceeding involving any matter within
the authority of the lupon shall be filed
or instituted directly in court or any
other government office for adjudication
UNLESS
1. there has been a confrontation
between the parties before the
lupon chairman or pangkat, AND
2. that
no
conciliation
or
settlement has been reached OR
unless the settlement has been
repudiated by the parties
thereto.
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
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.
THE PARTIES MAY GO DIRECTLY TO COURT

IN THE FOLLOWING INSTANCES:
1. Where the accused is under
detention;
2. Where the person has otherwise
been deprived of personal liberty
calling
for
habeas
corpus
proceeding;
3. Where the actions are coupled with
provisional remedies such as
preliminary injunction, attachment,
delivery of personal property, and
support pendente lite; and
4. Where the action may otherwise be
barred
by
the
statute
of
limitations.
The parties may, at any stage of the
proceedings, agree in writing to have the
matter in dispute decided by arbitration by
either the Punong Barangay or Pangkat. In
such case, arbitrational hearings shall follow
order of adjudicative trials.
The settlement and arbitration agreement
may be repudiated on the ground that
consent is vitiated by fraud, violence, or
intimidation. Such repudiation shall be
sufficient basis for the issuance of the
certification for filing a complaint in court
or any government office for adjudication.
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


19
MEMORY AID
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
IN
REMEDIAL LAW
COMPLAINT is a concise statement of the

ultimate facts constituting the plaintiffs
cause or causes of action, with
a specification of the relief sought, but it

may add a general prayer for such further
relief as may be deemed just or equitable.
ULTIMATE
FACTS
essential
facts
constituting the plaintiffs cause of action.
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.
PROCEDURE IN REGIONAL TRIAL

COURTS
RULE 6
KINDS OF PLEADINGS
Section 1. Pleadings defined.
PLEADINGS the written allegations of
the parties of their respective claims and
defenses submitted to the court for
appropriate judgment.
A motion to dismiss is NOT a pleading.
It is the allegations or averments in the
pleading that determines the jurisdiction
of the court and the nature of the
action.
PLEADING
What are NOT ultimate facts:

1. Evidentiary or immaterial facts.
2. Legal conclusions, conclusions or
inferences of facts from facts not
stated, or incorrect inferences or
conclusions from facts stated.
3. The details of probative matter or
particulars of evidence, statements
of law, inferences and arguments.
4. An allegation that a contract is valid
or void is a mere conclusion of law.
TEST OF SUFFICIENCY: if upon admission or
proof of the facts being alleged, a judgment
may be properly given. A fact is essential if
it cannot be stricken out without leaving the
statement of the cause of action
insufficient.
Section 4. Answer
ANSWER the pleading where the defendant
sets forth his affirmative or negative
defenses.
MOTION
It relates to the cause An application for an

of action; interested order not included in
in the matters to be
the judgment
included in the
judgment.
May be initiatory
Cannot be initiatory as
they are always made
in a case already filed
in court
Always filed before

judgment
May be filed even

after judgment
Section 3. Complaint.
2 kinds of defenses that may be set forth

in the answer:
a. AFFIRMATIVE DEFENSES allegation of
a new matter which while hypothetically
admitting the material allegations in the


20
MEMORY AID
pleading,
would
nevertheless
prevent or bar recovery by him. It is
in the nature of Confession and
Avoidance
b. NEGATIVE DEFENSES specific
denial of the material facts or facts
alleged in the pleading
IN
REMEDIAL LAW
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.
Section 7. Compulsory Counterclaim
Insufficient denial or denial amounting

to admissions:
1. General denial
2. Denial in the form of a
negative pregnant
Section 6. Counterclaim
RULES ON COUNTERCLAIM
A counterclaim before the MTC must be
within the jurisdiction of said court, both as
to the amount and nature thereof (De Chua
vs. IAC).
COUNTERCLAIM any claim which a

defending party may have against an
opposing party.
Filing of complaint
Nature
w/ the Punong
Barangay (PB)
of
W/in the next working day
At any time during the

Proceedings
counterclaim: A
Issuance of
summons to
the parties
and the
witnesses
Parties agree to
submit the
dispute for
arbitration
counterclaim is in
the
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
Pangkat convenes not

later than 3 days
KATARUNGANG PAMBARANGAY PROCEDURE
from its constitution
and summons the
parties
Pangkat must
arrive at a
settlement
w/in 15 days
from the day
it convenes
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
nature
Execution w/in 6
months from the
date of settlement
Repudiation of
settlement w/in 10
days from date
thereof
Note: Repudiation shall

only be allowed on ground
of vitiation of consent by
fraud,
violence
or
intimidation.
Failure of Conciliation
hearings at the Pangkat
ISSUANCE OF
Level and of Arbitration
CERTIFICATION
FOR
hearings
shall and
alsoSpecial
lead to
OF Alnaiza
A
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil FILING
Procedure);
Hasiman (Special
Civil Actions
the
issuance
of
Proceedings); Jeenice de Sagun (Criminal Procedure);COMPLAINT
Elaine Masukat
IN (Evidence)
COURT
certification for filing a
complaint in court.

21
MEMORY AID
Need not be
answered; no default.
IN
REMEDIAL LAW
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 this case, it
may be pleaded by filing an amended
answer or a supplemental answer or
pleading.
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.
DOCTRINE OF ANCILLARY JURISDICTION

In an original action before the RTC, the
counterclaim
may
be
considered
compulsory regardless of the amount
(Sec. 7, Rule 6 ).
If a counterclaim is filed in the MTC in
excess of its jurisdictional amount, the
excess is considered waived (Agustin vs.
Bacalan). In Calo vs. Ajax Intl, the
remedy where a counterclaim is beyond
the jurisdiction of the
MTC is to set off the claims and file a
separate action to collect the balance.
COMPULSORY
COUNTERCLAIM
PERMISSIVE
COUNTERCLAIM
One which arises out It does not arise out of

of or is necessarily
nor is it necessarily
connected with the
connected with the
transaction or
subject matter of the
occurrence that is the
opposing partys
subject matter of the
claim.
opposing partys
claim.
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 cross-claim is considered
permissive.
The dismissal of the complaint carries with
it the dismissal of a cross-claim which is
purely defensive, but not a cross-claim
seeking
affirmative
relief.
Cross Claim Counterclaim
3rd-party
Complaint
Against a co- Against

an Against
a
party
opposing party person not a
party to the
action
It does not require for It may require for its

its adjudication the
adjudication the
presence of third
presence of third
parties of whom the parties over whom the
court cannot acquire court cannot acquire
jurisdiction.
jurisdiction.
It is barred if not set
up in the action.
It is NOT barred even

if not set up in the
action.


22
MEMORY AID
Must arise out May arise out of Must be in
of the
or be necessarily respect of
transaction connected with
the
that is the
the transaction opponents
subject matter or that is the
claim
of the orig.
subject matter (Plaintiff)
action or of a of the opposing
counterclaim partys claim, in
therein.
which case, it is
called a
compulsory
counterclaim, or
it may not, in
which case it is
called a
permissive
counterclaim.
Section 10. Reply.

REPLY - the response of the plaintiff to
the defendants answer.
EFFECT OF FAILURE TO REPLY: new
facts that were alleged in the answer are
deemed controverted. Hence, the filing
of the reply is optional except for the
denial of the genuineness and due
execution of an actionable document
used as defense in the answer.
Section 11. Third (fourth, etc.) party
complaint.
THIRD
(FOURTH,ETC.)
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
Brings into the action

a third person who
was not originally a
party.
Same
Initiative is with the

Initiative is with a
person already a party non-party who seeks
to the action.
to join the action.
TESTS to determine whether the thirdparty complaint is in respect of

plaintiffs claim:
1. Where it arises out of the same
transaction
on
which
the
plaintiffs claim is based, or,
although arising out of another
or different transaction, is
connected with the plaintiffs
claim;
IN
REMEDIAL LAW
2. Whether the third-party defendant

would be liable to the plaintiff or to
the defendant for all or part of the
plaintiffs claim against the original
defendant; and
3. Whether the third-party defendant
may assert any defenses which the
third-party plaintiff has or may have
to the plaintiffs claim.
Leave of court to file a third-party
complaint may be obtained by motion under
Rule 15.
Summons to new party (third, fourth, etc.)
is needed for the court to obtain jurisdiction
over his person, since he is not an original
party.
Where the trial court has jurisdiction over
the main case, it also has jurisdiction over
the third party complaint, regardless of the
amount involved as a third party complaint
is merely auxiliary to and is a continuation
of the main action (Republic v. Central
Surety & Insurance Co. L-27802, Oct. 26,
1968).
Section 12. Bringing new parties.
Distinguished from 3rd-party complaint: A
3rd-party complaint is proper when not one
of the third-party defendants therein is a
party to the main action. But if one or more
of the defendants in a counterclaim or crossclaim is already a party to the action, then
the other necessary parties may be brought
in under this section.
RULE 7
PARTS OF A PLEADING
Section 3. Signature and address.
The signature of the counsel is a
certification that:
1. That he has read the pleading;
2. There is good ground to support it;
and
3. It is not interposed for delay
Only the original copies must be signed.
UNSIGNED PLEADING may be stricken out as
sham and false, and the action may proceed
as though the pleading has not been
served. It has no legal effect.
Section 4. Verification.
Pleadings need NOT be verified EXCEPT
when otherwise provided by the law or
rules.


23
MEMORY AID
A verification must now be based on
personal knowledge or based on
authentic records.
IN
REMEDIAL LAW
ULTIMATE FACTS: those which directly form

the bases of the right sought to be enforced
or the defense relied upon.
If the ultimate facts are NOT alleged, the
cause of action would be insufficient.
Section 4. Capacity.
Section 5. Certification against forum

shopping.
FORUM SHOPPING the filing of a two or
more cases based on the same cause of
action in different courts for the purpose
of obtaining a favorable decision in
either.
Test to determine the presence of
forum-shopping: whether in the two (or
more) cases pending, there is identity of
(a) parties, (b) rights or causes of action,
and (c) reliefs sought.
The certificate is to be executed by
petitioner, and not by counsel.
Required ONLY for
initiatory pleadings.
complaints
or
Certificate of non-forum shopping is not

required in a compulsory counterclaim
(UST Hosp. vs. Surla).
EFFECT OF FAILURE TO COMPLY:
1. Not curable by amendment of
said pleading
2. shall be cause for the dismissal
of the case, without prejudice,
unless otherwise provided, upon
motion and after hearing
EFFECT OF SUBMISSION OF FALSE
CERTIFICATION OR NON-COMPLIANCE
WITH THE UNDERTAKINGS THEREIN:
1. indirect contempt
2. administrative
and
criminal
actions
EFFECT OF WILFULL AND DELIBERATE
FORUM SHOPPING:
1. shall be ground for summary
dismissal of the case with
prejudice;
2. direct contempt.
RULE 8
MANNER OF MAKING ALLEGATIONS IN A
PLEADING
Pleadings should state ultimate facts
essential to the right of action.
Capacity to sue and be sued either

personally or in representative capacity
must be specifically averred by the party
suing or being sued, and specifically denied
by the party questioning such capacity.
Capacity is challenged by specific
denial, motion to dismiss or bill of
particulars.
Section 5. Fraud, mistake, condition of the
condition
FACTS THAT MAY BE AVERRED GENERALLY:
1. Conditions precedent (BUT there
must still be an allegation that the
specific condition precedent has
been complied with, otherwise, it
will be dismissed for failure to state
a cause of action)
2. Malice, intent, knowledge, or other
condition of the mind
3. Judgments of domestic or foreign
courts, tribunals, boards, or officers
(no need to show jurisdiction)
4. Official document or act
FACTS
THAT
MUST
BE
AVERRED
PARTICULARLY:
1. Circumstances showing fraud or
mistake in all averments of fraud or
mistake
2. Capacity
ACTIONABLE
DOCUMENT
written
instrument upon which the action or defense
is based.
Two permissible ways of pleading an

actionable document:
1. By setting forth the substance of
such document in the pleading and
attaching said document thereto as
an annex (contents of the document
annexed are controlling, in case of
variance in the substance of the
document set forth in the pleading
and in the document attached); or
2. By setting forth said document
verbatim in the pleading.


24
MEMORY AID
Where the actionable document is
properly alleged, the failure to
specifically deny under oath the same
results in:
1. The
admission
of
the
genuineness and due execution
of said document, EXCEPT that
an oath is not required:
a. When the adverse party was
not
a
party
to
the
instrument; and
b. When an order for the
inspection of the original
document was not complied
with.
2. The document need not be
formally offered in evidence.
GENUINENESS
That the document is not spurious,
counterfeit, or of different import on its
face from the one executed by the party,
or that the party whose signature it
bears has signed it and that at the time
it was signed it was in words and figures
exactly as set out in the pleadings.
DUE EXECUTION
That
the
document
was
signed
voluntarily and knowingly by the party
whose signature appears thereon.
Defenses that the opposing party may
set up even after failure to deny under
oath:
1. Mistake;
2. fraud;
3. compromise;
4. payment;
5. prescription;
6. want
or
illegality
of
consideration; or
7. estoppel
BUT the following defenses are
waived:
a. forgery in the signature;
b. want of authority of an agent or
corporation;
c. want of delivery; or
d. the party charged signed the
instrument
in
some
other
capacity
Section 10. Specific Denial
THREE WAYS OF MAKING A SPECIFIC
DENIAL:
1. By specifically denying each
material allegation of the other
party and, whenever possible,
setting forth the substance of
IN
REMEDIAL LAW
the matters relied upon for such

denial;
2. Part admission or part denial;
3. By an allegation of lack of knowledge
or information sufficient to form a
belief as to the truth of the
averment in the opposing partys
pleading (must be made in good
faith).
A denial must not be general. A general
denial is regarded as an admission of the
facts stated in the complaint and entitles
plaintiff to a judgment on the pleadings.
NEGATIVE PREGNANT a form of denial
which at the same time involves an
affirmative implication favorable to the
opposing party; It is in effect, an admission
of the averment to which it is directed; It is
said to be a denial pregnant with an
admission of the substantial facts in the
pleading responded to.
Section 11. Allegation not specifically
denied deemed admitted.
GENERAL RULE: Allegations NOT specifically
denied
deemed
admitted
(such
as
allegations of usury in the complaint, and
the authenticity and due execution of
actionable documents).
EXCEPTIONS:
1. Allegations as to the amount of
unliquidated damages
2. Immaterial allegations;
3. Incorrect conclusions of fact.
RULE 9
EFFECT OF FAILURE
TO PLEAD
Section 1. Defenses and objections not
pleaded.
GENERAL RULE: Defenses and objections
that are not pleaded in a MOTION TO DISMISS
or in the answer are deemed waived.
EXCEPTIONS (not waived even if not raised):
1. Lack of jurisdiction over the subject
matter
2. Litis pendentia
3. Res judicata
4. Prescription of the action
These defenses may be raised at any stage
of the proceedings even for the first time on
appeal EXCEPT that lack of jurisdiction over
the subject matter may be barred by laches.
(Tijam vs. Sibonghanoy).
The presence of these grounds authorizes
the court to motu proprio dismiss the
claims. These grounds must, however,


25
MEMORY AID
appear from the pleadings
evidence on record.
or
the
Section 3.
DEFAULT the failure of the defendant
to answer within the proper period. It is
not his failure to appear nor failure to
present evidence.
ORDER OF DEFAULT
JUDGMENT BY
DEFAULT
issued by the court, Rendered by the court

on plaintiffs motion
following a default
for failure of the
order or after it
defendant to file his
received, ex parte,
responsive pleading
plaintiffs evidence.
seasonably.
Interlocutory - not
Final appealable
appealable
NO default may be declared in the

following actions:
1. Annulment of marriage
2. Declaration
of
nullity
of
marriage
3. Legal Separation
4. Special civil actions of certiorari,
prohibition and mandamus where
comment instead of an answer is
required to be filed
The court cannot motu proprio declare a
defendant in default. For defendant to
be declared in default, the plaintiff
must:
1. File a MOTION to declare
defendant in default
2. Prove that summons have been
properly
served
on
the
defendant
3. Prove that the defendant really
failed to answer within the
proper period.
CAUSES OF DEFAULT
1. Failure to answer within the
proper period
2. Non-compliance with the order
of the court to file a bill of
particulars or in case of
insufficient
compliance
therewith (Rule 12, Section 4)
3. Refusal to comply with the
modes of discovery (Rule 29,
Section 3, par. c)
4. Failure to furnish plaintiff with a
copy of the answer
If the defendant was declared in default
upon an original complaint, the filing of
the amended complaint resulted in the
withdrawal of the original complaint,
REMEDIAL LAW
IN
hence, the defendant was entitled to 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.
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
Court sets aside

order of default and
defendant is allowed
to file an answer
Case set for

pre-trial
order of
default
PARTIAL
DEFAULT:
1. The
Presentation
of plaintiffs
evidence exparte
If plaintiff
proves his
allegations,
judgment by
default.
If plaintiff
fails to prove
his allegations, case is
dismissed.
pleading asserting a claim states a


26
MEMORY AID
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
Motion for new trial or reconsideration at

any time after service of judgment by
default and within 15 (30) days therefrom
IN
REMEDIAL LAW
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.
Failure to file motion for new trial/

Denial of said motion
Perfect appeal from said judgment by

default within the balance of said
15 (30) - day period
Failure to appeal without

defendants faulk
Petition for relief from judgment within

60 days from notice of the judgment but
within 6 months from entry thereof
EXTENT OF RELIEF
IN
A
TO BE AWARDED
Annulment of Judgment
under Rule 47
JUDGMENT BY DEFAULT:
Shall not exceed the amount OR be
different in kind from that prayed for
NOR award unliquidated damages.
RULE 10
AMENDED AND SUPPLEMENTAL
PLEADINGS
AMENDMENTS
Section 1. Amendments in general.
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.
1ST PART: refers to amendment to conform
to evidence when issues NOT raised by the
pleadings are tried with the express or
implied consent of the parties
- but failure to amend does NOT affect the
result of the trial of these issues
2ND PART: refers to amendment to authorize
presentation of evidence if evidence is
objected to at the trial on the ground that it
is not within the issues made by the
pleadings.
SUPPLEMENTAL PLEADINGS
A cause of action which accrued after the
filing of the original complaint may, in the
discretion of the court, be pleaded in a
supplemental complaint if there was a valid
subsisting cause of action at the time the
original complaint was filed.


27
MEMORY AID
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
Section 7. Filing of amended pleadings.

The amended pleading supersedes the
original pleading.
An
amendment
which
merely
supplements
and
amplifies
facts
originally alleged in the complaint
relates back to the date of the
commencement of the action and is not
barred by the statute of limitations
which expired after service of the
original complaint.
EFFECT OF AMENDED PLEADING:
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
IN
REMEDIAL LAW
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).
4. In case of a non-resident defendant on
whom
extraterritorial
service
of
summons is made, the period to answer
should be at least 60 days.
The court may extend the time to file the
pleadings BUT may NOT shorten them.
The 15-day period begins to run from receipt
of summons.
Section 3. Answer to amended complaint.
1. If the filing of an amended
complaint is a matter of right within 15 days from service of the
amended complaint.
2. If the filing of the amended
complaint is NOT a matter of right
within 10 days counted from notice
of the court order admitting the
same.
If no new answer is filed by the defendant in
case an amendment has been made after he
had filed his answer, the original answer of
the defendant may serve as the answer to
the amended complaint, and hence, cannot
be declared in default.
Section 5. Answer to third (fourth, etc.)party complaint.
The third-party defendant is served with
summons just like the original defendant,
hence, he also has 15, 30, 60 days from
service of summons, as the case may be, to
file his answer.
Section 7. Answer to supplemental
complaint.
Leave of court is required in filing, the court
may fix a different period for answering the
supplemental complaint in lieu of the


28
MEMORY AID
reglementary
10-day
period.
Section 10. Omitted counterclaim or

cross-claim.
The pleader may set up a counterclaim
or cross-claim by amendment before
judgment when he fails to set it up by
reason of oversight, inadvertence, or
excusable neglect ort when justice
requires. Leave of court is necessary.
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.
IN
REMEDIAL LAW
a. may order the striking out of

the pleading or the portion
thereof to which the order is
directed; or
b. make such order as it may
deem just.
2. If plaintiff, his compliant will be
stricken off and dismissed (Rule 12,
sec. 4; Rule 17, sec. 3)
3. If defendant, his answer will be
stricken off and his counterclaim
dismissed, and he will be declared in
default upon motion of the plaintiff
(Rule 12, sec. 4; Rule 17, sec. 4;
Rule 9, sec. 3).
RULE 13
FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS
Notice given to a party who is duly
represented by counsel is a nullity, unless
service thereof on the party himself was
ordered by the court or the technical defect
was waived.
Section 3. Manner of filing.
1. Personally
2. by registered mail
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.
Filing by mail should be through the registry

service which is made by deposit of the
pleading in the post office, and not through
other means of transmission.
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.
If registry service is not available in the

locality of either sender or addressee,
service may be done by ordinary mail.
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.
NOTE: PERSONAL and SUBSTITUTED service

as applied to pleadings have a different
meaning compared to summons under Rule
14.
Effect of non-compliance:
1. If the Order is not obeyed or in
case of insufficient compliance
therewith, the court:
MODES OF SERVICE
PLEADINGS
1. PERSONAL SERVICE
a. Delivering personally a copy to the
party or his counsel or;
If a private carrier is availed of by the party,

the date of actual receipt by the court of
such pleading and not the date of delivery
to the carrier, is deemed to be the date of
the filing of that pleading.


29
MEMORY AID
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
a. by handling a copy to defendant;
or
b. tendering him copy if he refuses;
c. complete upon actual delivery
2. Service by ordinary mail:
Complete upon expiration of 10
days after mailing, unless the
court provides otherwise.
3. Service by registered mail:
a. Complete upon actual receipt by
the addressee; or
b. After 5 days from the date he
received the 1st notice of the
postmaster, whichever date is
earlier.
IN
REMEDIAL LAW
Section 12. Proof of filing.

Filing is proved by its existence in the record
of the case.
If it is not in the record, and:
If filed personally: proved by the written
or stamped acknowledgment of its filing by
the clerk of court on a copy of the same; or
If filed by registered mail: proved by -the
registry receipt and the affidavit of the
person who did the mailing.
Section 13. Proof of service
1. Proof of personal service:
a. Written admission of the party
served; or
b. Official return of the server; or
c. Affidavit of the party serving.
2. Proof of service by ordinary mail:
Affidavit of the person mailing;
3. Proof of service by registered mail:
a. Affidavit, and
b. Registry receipt issued by
mailing office.
the
Section 14. Notice of lis pendens.

LIS PENDENS - a notice of a pendency of the
action between the parties involving title to
or right of possession over real property.
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


30
MEMORY AID
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.
SERVICE OF SUMMONS ON DIFFERENT

ENTITIES
Service on entity Upon
any
or
all
w/o juridical
defendants being sued
personality
under common name; or
person in charge of office
Service upon
minors and
incompetents
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
complaint, as the original complaint was
deemed
withdrawn
upon
such
amendment.
KINDS OF SERVICE OF SUMMONS:

1. personal service
2. substituted service
3. by publication
In actions in personam where the
defendant cannot be served with
summons personally or by substituted
service, the case must first be converted
into an in rem or quasi in rem action by
attaching the property of the defendant
found in the Philippines before summons
can be served by publication. If no
property can be found, the action shall
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
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
plaintiff must obtain the
appointment of a guardian
ad litem for him.
Service upon
prisoner
Serve on officer having

management of the jail or
prison
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
Serve on resident agent ;

or if none; on govt
official designated by law;
or
on any officer or agent of
the corporation within the
Philippines.
Service upon
public
corporations
in case defendant is the

Republic of the Philippines
- by serving upon the
Solicitor General
in case of a province, city
or municipality, or like
public corporations by
serving on its executive
head, or on such other
officer or officers as the
law or the court may
direct.
Enumeration is EXCLUSIVE.
ALIAS SUMMONS issued when original
has not produced its effect because it is
defective in form or manner of service,
and when issued, supersedes the first
(Section 5).
REMEDIAL LAW
be archived but shall not be dismissed.

(Citizens Surety vs. Court Appeals)
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.
Section 3. By whom served.

Summons may be served by:
1. Sheriff
2. Sheriffs deputy, or
3. Other proper court officers, or
4. For justifiable reasons, by any
suitable person authorized by
the court issuing the summons.
IN


31
MEMORY AID
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
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.
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
With leave of court, by

publication in a
newspaper of general
circulatiuon
Section 20. Voluntary appearance.

Any form of appearance in court, by the
defendant, by his agent authorized to do
IN
REMEDIAL LAW
so, or by attorney, is equivalent to service of

summons EXCEPT where such appearance is
precisely to object to the 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 manner as
shall ensure its receipt at least 3 days
before the hearing.
EXCEPTIONS:
1. Ex parte motions
2. Urgent motions
3. Motions agreed upon by the parties
to be heard on shorter notice or
jointly submitted by the parties, and


32
MEMORY AID
4. Motions for summary judgment
which must be served at least 10
days before its hearing
5. Non-litigated motions.
Section 5. Notice of hearing.
NOTICE OF HEARING shall:
1. Be addressed to all parties
concerned
2. Specify the time and date of the
hearing which must not be later
than 10 days after the filing of
the motion
NOTE: Any motion that does not comply
with Sections 4, 5 and 6 of this Rule is a
mere scrap of paper, should not be
accepted for filing and, if filed, is not
entitled to judicial cognizance and does
not affect any reglementary period
involved for the filing of the requisite
pleading.
Omnibus Motion Rule - All available
grounds for objection in attacking a
pleading, order, judgment, or proceeding
should be invoked at one time,
otherwise, they shall be deemed
waived.
Motion for leave to file a pleading or
motion shall be accompanied by the
pleading or motion sought to be
admitted, otherwise, the latter will be
denied.
RULE 16
MOTION TO DISMISS
A Motion to Dismiss is NOT a responsive
pleading.
Section 1. Grounds.
1. No jurisdiction over the person
of the defending party
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
IN
REMEDIAL LAW
MOTION TO DISMISS MOTION TO DISMISS

UNDER RULE 16
UNDER RULE 33
(demurrer to
evidence)
Grounded on
preliminary
objections.
based on insufficiency
of evidence.
may be filed by any

May be filed only by
defending party
the defendant against
against whom a claim the complaint of the
is asserted in the
plaintiff.
action.
should be filed within May be filed only after
the time for but prior
the plaintiff has
to the filing of the
completed the
answer of the
presentation of his
defending party to the
evidence.
pleading asserting the
claim against him.
If denied, defendant If denied, defendant
answers, or else he may present evidence
may be declared in
if granted, plaintiff
default
appeals and the Order
If granted, plaintiff
of the dismissal is
may appeal or if
reversed, the
subsequent case is not defendant loses his
barred, he may re-file
right to present
the case
evidence.
Effect of motion to dismiss: A motion to

dismiss hypothetically admits the truth of
the facts alleged in the complaint.
However, such admission is limited only to
all material and relevant facts which are
well pleaded in the complaint.
An action cannot be dismissed on a ground
not alleged in the motion even if said ground
is provided for in Rule 16.
EXCEPT:
1. Those cases where the court may
dismiss a case motu proprio (Sec. 1,
Rule 9)
2. Such ground appears in the
allegations of the complaint or in
plaintiffs evidence
REQUISITES OF LITIS PENDENTIA
1. Parties to the action are the same
2. There is substantial identity in the
cause of action and relief sought
3. The result of the first action is
determinative of the second in any
event and regardless of which party
is successful


33
MEMORY AID
Motion to dismiss may be filed in either
suit, not necessarily in the one instituted
first.
REQUISITES OF RES JUDICATA
1. Previous final judgment
2. Jurisdiction over the subject
matter and the parties by the
court rendering it
3. Judgment upon the merits
4. In a case prosecuted between
same parties
5. Involving the same subject
matter
6. Same cause of action
There could be res judicata without a
trial, such as in a judgment on the
pleadings (Rule 34); a summary
judgment (Rule 35); or an order of
dismissal under Section 3 of Rule 17.
When the ground for dismissal is that the
complaint states no cause of action, such
fact can be determined only from the
facts alleged in the complaint.
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 ).
IN
REMEDIAL LAW
EFFECTS OF
ACTION ON MTD
REMEDY
Order granting motion

to dismiss is final
order
Order denying the
motion to dismiss is
interlocutory
Appeal from the order

of dismissal
Certiorari and
prohibition if there is
grave abuse of
discretion amounting
to lack or excess of
jurisdiction under Rule
65
Section 4. Time to plead.

Defendant is granted only the balance of the
reglementary period to which he was
entitled at the time he filed his motion to
dismiss, counted from his receipt of the
denial order, but not less than 5 days in any
event.
The same rule of granting only the balance
of the period is followed where the court,
instead of denying the motion to dismiss,
orders the amendment of the pleading
challenged by the motion, in which case,
the balance of the period to answer runs
from his receipt of the amended pleading.
Section 5. Effect of dismissal

GENERAL RULE: The action or claim may be
refiled.
EXCEPTION: The action cannot be refiled if
it was dismissed on any of these grounds:
1. Res judicata;
2. Prescription;
3. Extinguishment of the claim
or demand;
4. Unenforceability under the
Statute of Frauds.
Section 6. Pleading grounds as affirmative
defenses.
If no motion to dismiss had been filed, any
of the grounds for dismissal provided for in
Rule 16, INCLUDING IMPROPER VENUE, may
be pleaded as affirmative defenses and
preliminarily heard in the discretion of the
court.
Dismissal under this section WITHOUT
prejudice to the prosecution in the same or
separate action of a COUNTERCLAIM pleaded
in the answer
RULE 17
DISMISSAL OF ACTIONS


34
MEMORY AID
Section 1. Dismissal upon notice by
plaintiff.
Dismissal is effected not by motion but
by mere NOTICE of dismissal which is a
matter of right BEFORE the defendant
has answered or moved for a summary
judgment.
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
Dismissal under this rule is WITHOUT

PREJUDICE, EXCEPT:
1. When otherwise stated in the
motion to dismiss;
2. When stated to be with prejudice in
the order of the court.
The approval of the court is necessary in the
dismissal or compromise of a class suit.
Section 3. Dismissal due to fault of
plaintiff.
CAUSES FOR DISMISSAL
1. Plaintiff fails to appear for no
justifiable cause on the date of the
presentation of his evidence in chief
on the complaint
2. Plaintiff fails to prosecute his action
for an unreasonable length of time
(NOLLE PROSEQUI)
3. Plaintiff fails to comply with these
Rules or any order of the court.
Unjustifiable inaction on the part of
plaintiff to have the case set for
trial is a ground for dismissal for
failure to prosecute.
Complaint may be dismissed
1. Upon motion of the defendant, or
2. Upon courts own motion.
Dismissal shall have the effect of an
ADJUDICATION UPON THE MERITS (WITH
PREJUDICE), unless otherwise declared by
the court.
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;
Dismissal is a matter Dismissal is a matter

of procedure, without
of evidence, an
prejudice unless
adjudication on the
otherwise stated in
merits;
the order of the court
or on plaintiffs
motion to dismiss his
own complaint;
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


35
MEMORY AID
IN
REMEDIAL LAW
EFFECT
OF
NON-APPEARANCE
OF
PLAINTIFF:
Cause for dismissal of the action, with
prejudice, unless otherwise ordered by the
court.
intention to have his

counterclaim resolved
in the same action
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.
RULE 18
PRE-TRIAL
PRE-TRIAL- a mandatory conference and
personal confrontation before the judge
between the parties and their respective
counsel.
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.
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.
Failure to file pre-trial brief has the same

effect as failure to appear at the pre-trial.
The pre-trial and trial on the merits of

the case must be held on separate
dates.
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.
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 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 pre-trial order, as
well as in cross-examining the witness in
regard to said evidence.
FOR CHART ON PRE-TRIAL PLS. SEE THE NEXT PAGE.
A special authority for an attorney to

compromise is required under Sec. 23,
Rule 138. Under Art. 1878 (c) of the
Civil Code, a special power of attorney
is required.
PRE-TRIAL
No
Settlement
Agreements
made by parties;
Amendments to
pleading;
Schedule of trial
Amicable
Settlement
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
If evidence is insufficient to
prove plaintiffs cause of
Court(Special Civil Actions andaction
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman
Special or defendants
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence) renders
counterclaim, court rules in
decision
favor of either one or
dismisses the case

36
MEMORY AID
IN
REMEDIAL LAW
2. Whether or not the intervenors

rights may be fully protected in a
separate proceeding.
The interest which entitles a person to
intervene in a suit must be on the matter in
litigation and of such direct and immediate
character that the intervenor will either
gain or lose by the direct legal operation
and effect of the judgment.
RULE 19
INTERVENTION
INTERVENTION
INTERPLEADER
An ancillary action.
An original action.
Proper in any of the

four situations
mentioned in this
Rule.
Presupposes that the

plaintiff has no
interest in the subject
matter of the action
or has an interest
therein, which in
whole or in part, is not
disputed by the other
parties to the action.
WHO may intervene?

1. One who has legal interest in the
matter in litigation
2. One who has legal interest in the
success of either of the parties,
3. One who has an interest against
both parties
4. One who is so situated as to be
adversely
affected
by
a
distribution or other disposition
of property in the custody of the
court or of an officer thereof.
FACTORS TO BE CONSIDERED BY THE
COURT
1. Whether or not the intervention
will unduly delay or prejudice
the adjudication of the rights of
the original parties;
Defendants are
Defendants are being
already original
sued precisely to
parties to the pending
implead them
suit
Section 2. Time to intervene.

At any time before rendition of judgment by
the trial court.
JUSTIFICATION:
Before
judgment
is
rendered, the court, for good cause shown,
may still allow the introduction of additional
evidence and that is still within the liberal
interpretation of the period for trial.
Since no judgment has yet been rendered,
the matter subject of the intervention may
still be readily resolved and integrated in
the judgment disposing of all claims in the
case.
REMEDIES
FOR
THE
DENIAL
OF
INTERVENTION:
1. APPEAL
2. MANDAMUS if there is grave abuse of
discretion
If there is improper granting of intervention,
the remedy of the party is certiorari.
RULE 21
SUBPOENA
SUBPOENA
SUMMONS


37
MEMORY AID
an order to appear and
Order to answer
testify or to produce
complaint
books and documents
may be served to a
Served on the
non-party
defendant
needs tender of
does not need tender
kilometrage,
of kilometrage and
attendance fee and
other fees
reasonable cost of
production fee
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;
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
REMEDIAL LAW
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 long
before the trial to prevent such trial from
being carried on in the dark.
Modes of discovery under the Rules of
Court
1. Depositions pending action (Rule
23).
2. Depositions before action or pending
appeal (Rule 24).
3. Interrogatories to parties (Rule 25).
4. Admission by adverse party (Rule
26).
5. Production
or
inspection
of
documents, or things (Rule 27).
6. Physical and mental examination of
persons (Rule 28).
Discovery before answer.
It is only in the exceptional or unusual case
that the need for discovery arises, or that it


38
MEMORY AID
IN
REMEDIAL LAW
should be allowed before service of

answer.
inadmissible in evidence and he should be

made to testify.
Modes of Discovery are intended to be

CUMULATIVE, and not alternative nor
mutually exclusive.
It can be used as evidence by a party for any

purpose under the specific conditions in Sec.
4.
Discovery is NOT MANDATORY but failure

to avail carries sanctions in Rules 25 and
26.
DEPONENT
USE
Any person
By any party for

contradicting or
impeaching the
testimony of deponent
as witness
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
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
A party or any one By an adverse party for

who at the time of
any purpose
the deposition was
an OFFICER,
DIRECTOR, or
MANAGING AGENT of
a public or private
corp., partnership,
or association which
is a party
Witness, whether or
not a party
By any party for any

purpose if the court
finds the 5 instances
occurring
SCOPE OF INQUIRY IN DEPOSITIONS:

1. Matter which is relevant to the
subject of the pending action;
2. Not privileged
3. Not restricted by a protective order
Certiorari will not lie against an order
admitting or rejecting a deposition in
evidence, the remedy being an appeal from
the final judgment.
Section 7. Effect of taking depositions.
A party shall not be deemed to make a
person his own witness for any purpose by
taking his deposition because depositions
are taken for discovery and not for use as
evidence.
Exception: If a party offers the deposition in
evidence, then he is deemed to have made
the deponent his witness (Sec.8)
Exception to the Exception: Unless the
deposition is that of any adverse party, and
unless, of course, the deposition is used for
impeaching or contradicting the deponent
(Sec.8).
Section 10 and 11. Persons before whom
depositions may be taken.


39
MEMORY AID
WITHIN THE PHILIPPINES:
1. judge
2. notary public
3. any
person
authorized
to
administer oaths, as stipulated
by the parties in writing
OUTSIDE THE PHILIPPINES:
1. on notice, before a secretary of
embassy or legation, consul
general, consul, vice-consul, or
consular agent of the Phil.
2. before such person or officer as
may be appointed by commission
or letters rogatory
3. any
person
authorized
to
administer oaths, as stipulated
by the parties in writing
Section 12.
rogatory.
Commission
COMMISSION
or
letters
LETTERS ROGATORY
Issued to a nonIssued to the

judicial foreign officer appropriate judicial
who will directly take officer of the foreign
the testimony
country who will direct
somebody in said
foreign country to take
down testimony
Applicable rules of
Applicable rules of
procedure are those of procedure are those of
the requesting court
the foreign court
requested to act
Resorted to if
Resorted to if the
permission of the
execution of the
foreign country is commission is refused in
given
the foreign country
Leave of court is not
Leave of court is
necessary
necessary
Section 18. Motion to terminate or

limit examination.
MAY BE FILED:
1. any time during the taking of the
deposition
2. on motion or petition of any
party or of the deponent; or
3. upon
showing
that
the
examination is conducted in :
a. bad faith
b. in such manner as
unreasonably to annoy,
embarrass, or oppress
the deponent or party
RULE 24
DEPOSITIONS BEFORE ACTION OR
PENDING APPEAL
IN
REMEDIAL LAW
Depositions under this Rule are also taken

conditionally, to be used at the trial only in
case the deponent is not available.
Depositions under this Rule do not prove the
existence of any right and the testimony
perpetuated is not in itself conclusive proof,
either of the existence of any right nor even
of the facts to which they relate, as it can
be controverted at the trial in the same
manner as though no perpetuation of
testimony was ever had. However, in the
absence of any objection to its taking, and
even if the deponent did not testify at the
hearing,
the
perpetuated
testimony
constitutes prima facie proof of facts
referred
to
in
the
deposition.
Section 6. Use of deposition.
If deposition is taken under this Rule, it may
be used in any action involving the SAME
SUBJECT MATTER subsequently brought.
Section 7. Depositions pending appeal.
Sec. 7 is the procedure in perpetuating
testimony AFTER JUDGMENT IN THE RTC and
DURING THE PENDENCY OF AN APPEAL.
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 properly A party may properly

seek disclosure of seek disclosure only of
matters of proof
matters which define
which may later be the issues and become
made a part of the
a part of the
records as evidence.
pleadings.
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 issues are not yet
joined and the disputed facts are
not yet clear, when more than one
set of interrogatories is to be
served.)


40
MEMORY AID
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.
The justification for this provision is that

the party in need of relevant facts
having foregone the opportunity to
inquire into the same from the other
party through means available to him, he
should not thereafter be permitted to
unduly burden the latter with courtroom
appearances or other cumbersome
processes.
Unless a party had been served written
interrogatories,
he
may
not
be
compelled by the adverse party:
1. to give testimony in open court,
or
2. give a deposition pending
appeal.
The only exception is when the court
allows it for GOOD CAUSE shown and to
prevent a failure of justice.
Depositions Upon Interrogatories to
Written
Parties under Rule
Interrogatories to
25
Parties under Rule
23 Sec. 25
As to Deponent
Party or ordinary
witness
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
IN
REMEDIAL LAW
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 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


41
MEMORY AID
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
The mental condition of a party is in
controversy
in
proceedings
for
GUARDIANSHIP over an imbecile or
insane person, while the physical
condition of the party is generally
involved in PHYSICAL INJURIES cases.
Since the results of the examination are
intended to be made public, the same
are not covered by the physician-patient
privilege.
Section 4. Waiver of privilege.
Where the party examined requests and
obtains a report on the results of the
examination the consequences are:
1. he has to furnish the other party
a copy of the report of any
previous
or
subsequent
examination
of
the
same
physical and mental condition,
AND
2. he waives any privilege he may
have in that action or any other
involving the same controversy
regarding the testimony of any
other person who has so
examined him or may thereafter
examine him.
IN
REMEDIAL LAW
REFUSAL TO COMPLY WITH MODES OF

DISCOVERY
SANCTIONS
1. Contempt;
2. Payment of reasonable fees;
3. The matters regarding which the
questions were asked, character or
description of land et al., be taken
to be in accordance with the claim
of party obtaining the order;
4. Prohibition on the refusing party to
produce evidence or support or
oppose
designated
claims
or
defenses;
5. Striking out pleadings, order the
dismissal of the action or stay the
action until compliance or to render
judgment by default.
6. Order the arrest of the refusing
party except in cases of physical or
mental examination.
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)
Section 3. Requisites of motion to
postpone trial for absence of evidence.
There must be an affidavit showing:
1. materiality or relevance of such
evidence; and
2. due diligence in procuring it.
If the adverse party admits the facts for
which evidence is to be presented, the trial
will not be postponed.
Section 4. Requisites of motion to
postpone trial for illness of party or
counsel.
There must be an affidavit or sworn
certification showing:
RULE 29


42
MEMORY AID
1. presence of party or counsel at
the trial is indispensable; and
2. character of his illness is such as
to render his non-attendance
excusable.
Section 5. Order of
directed by the court.
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
Rebuttal
Evidence by
Parties
DECISION
Defendant files
demurrer to
evidence
If court
grants
motion:
Renders
dismisal
If court
denies
motion:
Continues
with
hearing
After
Presentation of
evidence:
oral arguments
submission of
memoranda
Unless the court for special reasons

otherwise directs, the trial shall be
limited to the issues stated in the pretrial order.
Section 6. Agreed statements of facts.
This is known as STIPULATION OF FACTS
and is among the purposes of a pre-trial.
The parties may also stipulate verbally in
open court. Such stipulations are binding
unless relief therefrom is permitted by
the court on good cause shown, such as
error or fraud.
IN
REMEDIAL LAW
Section 8. Suspension of actions.

Art. 2030 of the Civil Code. 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.
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.
But counsel cannot stipulate on what

their respective EVIDENCE consists of
and ask that judgment be rendered on
the basis of such stipulation.
REQUISITES FOR CONSOLIDATION:

1. When actions involving a common
question of law or fact, and
2. The actions are pending before the
same court
if filed with DIFFERENT courts,
authorization from the SC is
necessary.
Stipulations of facts are not permitted in

actions for ANNULMENT OF MARRIAGE
and for LEGAL SEPARATION.
3 WAYS OF CONSOLIDATING CASES:

1. by RECASTING THE CASES ALREADY
INSTITUTED, conducting only one


43
MEMORY AID
hearing and rendering only one
decision;
2. by CONSOLIDATING THE EXISTING
CASES and holding only one
hearing and rendering only one
decision; and
3. by HEARING ONLY THE PRINCIPAL
CASE and suspending the hearing
on the others until judgment has
been rendered in the principal
case. (TEST-CASE METHOD)
Consolidation of cases on appeal and
assigned to different divisions of the SC
and the CA is also authorized. Generally,
the case which was appealed later and
bearing the higher docket no. is
consolidated with the case having the
lower docket no.
RULE 32
TRIAL BY COMMISSIONER
COMMISSIONER- a person to whom a
cause pending in court is referred, for
him to take testimony, hear the parties
and report thereon to the court, and
upon whose report, if confirmed,
judgment is rendered.
Reference to a commissioner may be had
by the written consent of both parties.
Situations when reference to a
Commissioner may be made on motion
(Sec.2):
1. Examination of a long account
2. Taking of an account is necessary
3. Question of fact, other than
upon the pleading arises; or
4. Carrying a judgment or order
into effect.
Disobedience to a subpoena issued by
the commissioner is deemed a contempt
of the court which appointed the latter.
RULE 33
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
IN
REMEDIAL LAW
2 Scenarios
MOTION DENIED
MOTION GRANTED
BUT REVERSED ON
APPEAL
Movant shall have the Movant is deemed to

right to present his have waived his right
evidence
to present evidence.
The decision of the
appellate court will
be based only on the
evidence of the
plaintiff as the
defendant loses his
right to have the case
remanded for
reception of his
evidence.
denial is
order of the court is
INTERLOCUTORY. Sec. 1 an ADJUDICATION ON
, Rule 36 (that
THE MERITS, hence,
judgment should state the requirement in
clearly and distinctly
Sec. 1, Rule 36
the facts and the law should be complied
on which it is based),
with.
will not apply.
The denial is NOT
appealable.
CIVIL CASES
CRIMINAL CASES
Defendant need not ask

leave of court is
for leave of court;
necessary so that the
accused could
present his evidence
if the demurrer is
denied
if the court finds
if the court finds the
plaintiffs evidence
prosecutions
insufficient, it will evidence insufficient,
grant the demurrer by
it will grant the
dismissing the
demurrer by
complaint. The
rendering judgment
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


44
MEMORY AID
based on the
prosecutions
evidence
JUDGMENT ON DEMURRER TO EVIDENCE

is a judgment rendered by the court
dismissing a case upon motion of the
defendant, made after plaintiff has
rested his case, on the GROUND that
upon the facts presented by the plaintiff
and the law on the matter, plaintiff has
not shown any right to relief.
RULE 34
JUDGMENT ON THE PLEADINGS
A judgment on the pleadings must be on
motion
of
the
claimant.
(NO
SUPPORTING PAPERS ARE REQUIRED
BECAUSE EVERTHING IS BASED ON THE
PLEADINGS.)
HOWEVER, if at the pre-trial the court
finds that a judgment on the pleadings is
proper, it may render such judgment
motu proprio.
GROUNDS:
1. Answer fails to tender an issue
because of:
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
By moving for judgment on the

pleading, plaintiff waives his claim
for unliquidated damages. Claim for
such damages must be alleged and
proved.
NO JUDGMENT ON THE PLEADINGS IN

ACTIONS FOR
1. Declaration
of
nullity
of
marriage
2. Annulment of marriage
3. Legal Separation
Motion to Dismiss
Motion for
judgment on the
pleadings
claim or
complaint
IN
REMEDIAL LAW
3rd-party
If the complaint states no cause of

action, a motion to dismiss should be
filed and not a motion for judgment on
the pleading.
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 thus for the
issue to be joined, before he can move
for summary judgment.
2. Defendant: he can move for summary
judgment at anytime, that is, anytime
after filing and service of the complaint
even before he answers
The motion for summary judgment must be
supported by (1) affidavit, (2) depositions of
the adverse party or a third party, or (3)
admissions of the adverse party, all intended
to show that:
a. there is no genuine issue as to any
material fact, except damages
which must always be proved, and
b. the movant is entitled to a judgment
as a matter of law.
The summary judgment may be a judgment
on the merits, in which case, an appeal may
be taken therefrom.
SUMMARY
JUDGMENT
JUDGMENT
ON THE
PLEADINGS
JUDGMENT
BY DEFAULT
(Rule 9)
Based on the based solely on based on the

pleadings,
the pleadings. complaint and
depositions,
evidence, if
admissions
presentation is
and affidavits
required.
Available to
generally
Available to
both plaintiff available only
plaintiff.
and defendant to the plaintiff,
unless the
defendant
presents a
counterclaim.
Filed by a defendant Filed by the plaintiff

to a
complaint, if the answer raises
counterclaim, cross- no issue.


45
MEMORY AID
There is
The answer no issues as no
no genuine fails to tender answer is filed
issue between an issue or
by the
the parties,
there is an
defending
i.e. there may admission of
party.
be issues but
material
these are
allegations.
irrelevant
10-day notice 3-day
notice 3-day notice
required
required
rule applies.
May
be On the merits On the merits
interlocutory
or
on
the
merits
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.
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.
REMEDIAL LAW
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
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
PROMULGATION OF JUDGMENT
Court Renders Decision
Losing Party
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.
IN
Accepts
decision
without further
contest
Court
maintains
decision
If no appeal is
taken or did
not avail of
remedies,
judgment
becomes final
and executory
Filing appeal within

15/30 days from
notice of judgment
Within 15/30 days

from notice of
judgment:
Motion for
reconsideration; or
motion for new trial
Court grants motion:

1.modifies decision; or
2.grants new trial
Losing party may

appeal within the
remaining period

46
MEMORY AID
Section 4. Several judgments.
Several judgment is proper where the
liability of each party is clearly
separable and distinct from his coparties such that the claims against each
of them could have been the subject of
separate suits, and the judgment for or
against one of them will not necessarily
affect the other.
A several judgment is NOT proper in
actions against solidary debtors.
Section 6. Separate Judgments
Proper when more than one claim for
relief is presented in an action and a
determination as to the issues material
to the claim has been made. The action
shall proceed as to the remaining
claims.
Judgment NUNC PRO TUNC (literally

means now for then)
rendered to enter or record such
judgment as has been formerly
rendered but has not been
entered as thus rendered
its only function is to record
some act of the court which was
done at a former time, but
which was not then recorded, in
order to make the record speak
the truth, without any changes
in substance or any material
respect.
Judgment
upon
Agreement
or
Compromise
A compromise agreement between the
parties to a case on which the decision
of the court was based has upon the
parties the effect and authority of res
judicata. It is immediately executory.
Judgment by Confession
Judgment upon confession is one which
is rendered against a party upon his
petition or consent. It usually happens
when the defendant appears in court and
confesses the right of the plaintiff to
judgment or files a pleading expressly
agreeing to the plaintiffs demand.
Two kinds of judgment by confession
1. A judgment by COGNOVIT
ACTIONEM here, the defendant
after service instead of entering
a plea, acknowledged and
confessed that the plaintiffs
IN
REMEDIAL LAW
cause of action was just and

rightful.
2. A
judgment
by
CONFESSION
RELICTA VERIFICATIONE after
pleading and before trial, the
defendant both confessed the
plaintiffs cause of action and
withdrew or abandoned his plea or
other
allegations,
whereupon
judgment was entere against him
without proceeding to trial.
Judgment upon
Compromise
Judgment by
Confession
The provisions and

An affirmative and
terms are settled and voluntary act of the
agreed upon by the
defendant himself.
parties to the action, The court exercises a
and which is entered
certain amount of
in the record by the
supervision over the
consent of the court. entry of judgment.
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
Does not take the

place of or extinguish
the original judgment
Court makes a
thorough study of the
original judgment and
renders the amended
and clarified judgment
only after considering
all the factual and
legal issues
Serves to bolster or
add to the original
judgment
RULE 37
NEW TRIAL OR RECONSIDERATION
Order denying
Second motion for new trial

based on grounds not existing or
available when 1st motion was
filed
Appeal from the judgment or
final order and assign as one of
the errors the denial of the


47
MEMORY AID
An order denying a motion for new trial
is not appealable.
NEW TRIAL - the rehearing of a case
already decided by the court but before
the judgment rendered thereon becomes
final and executory, whereby errors of
law or irregularities are expunged from
the record, or new evidence is
introduced, or both steps are taken.
Purpose: to set aside the judgment or
final order and grant a new trial.
WHEN to file: within period for taking
appeal.
WHERE to file: with the trial court
which
rendered
the
questioned
judgment.
MOTION FOR A NEW
TRIAL
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
Second motion may be Second motion from
allowed
same party is
prohibited
If a new trial is granted if the court finds that
the trial court will set
excessive damages
aside the judgment or have been awarded or
final order
that the judgment or
final order is contrary
to the evidence or law,
it may amend such
judgment or final order
accordingly
REQUISITES for NEWLY-DISCOVERED

EVIDENCE
1. Must have been discovered after
trial
2. Could not have been discovered
and produced at the trial
3. If presented, would alter the
result of the action
4. Otherwise
it
is
called
FORGOTTEN EVIDENCE.
A motion suspends or tolls the running of
the reglementary period for appeal
except when the same is pro-forma.
PRO-FORMA MOTION - when it does not
comply with Rule 15 and Rule 37, e.g. it
does not point out specifically the
IN
REMEDIAL LAW
findings or conclusions of the judgment as

are contrary to law, making express
reference to the testimonial or documentary
evidence or to the provisions of law alleged
to be contrary to such findings or
conclusions, and is merely intended to delay
the proceedings OR if there is no affidavit of
merit.
Section 6. Effect of granting of motion for
new trial
When motion is granted, the original
judgment is thereby vacated and the action
stands for trial de novo, but the recorded
evidence taken upon the former trial so far
as the same is material and competent to
establish the issues, shall be used at the
new trial taking the same.
The order denying a motion for new trial is
NOT appealable.
MOTION FOR NEW
MOTION FOR
TRIAL
REOPENING OF THE
TRIAL
Specifically
mentioned in the
Rules
Not mentioned in the

Rules but is
nevertheless a
recognized procedural
recourse or device
deriving validity and
acceptance from long
established usage
NOTE: It is actually
mentioned in the Rules
of Criminal Procedure
Proper only after
May properly be
promulgation of
presented only after
judgment
either or both the
parties have formally
offered and closed
their evidence before
judgment
Based upon specific Controlled by no other
grounds set forth
rule than the
under Rule 37 in civil paramount interests of
cases and Rule 121 in justice, resting entirely
criminal cases
on the sound discretion
of a trial court, the
exercise of which
discretion will not be
reviewed on appeal
UNLESS a clear abuse
thereof is shown
MOTION FOR RECONSIDERATION

Purpose: To reconsider or amend judgment
or final order
WHEN to file: within period for taking an
appeal
WHERE to file: with the trial court which
rendered the judgment or final order sought


48
MEMORY AID
to
be
reconsidered
RULE 38
RELIEF FROM JUDGMENTS, ORDERS, OR
OTHER PROCEEDINGS
REMEDIES
AGAINST
FINAL
AND
EXECUTORY JUDGMENTS OR ORDERS
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;
o Lack of jurisdiction, before
it is barred by laches or
estoppel
3. Direct or collateral attack
against a void or voidable
judgment
o DIRECT ATTACK when the
validity of the judgment
itself is the main issue of the
action,
a
petition
for
certiorari and action to
annul judgment on the
ground of extrinsic fraud or
lack of jurisdiction
o COLLATERAL ATTACK if the
judgment can be resisted in
any other action in which it
is involved.
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
If denied, the order

of denial is NOT
appealable, hence
remedy is appeal
from the judgment
Legal remedy
Motion need not be
verified
IN
REMEDIAL LAW
civil action under Rule

65
Equitable remedy
Petition must be
verified
TWO HEARINGS UNDER RULE 38

1. Hearing to determine whether the
judgment should be set aside
2. If yes, a hearing on the merits of the
case.
The period fixed by Rule 38 is nonextendible and is never interrupted.
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.
It cannot vary the terms of the judgment it
seeks to enforce
FINAL JUDGMENT OR ORDER- one which
disposes of the whole subject matter or
terminates the particular proceedings or
action, leaving nothing to be done by the
court but to enforce by execution what has
been determined.
EXECUTION OF JUDGMENT
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


49
MEMORY AID
Judgment is
executed by
motion within
5 years from
date of its
entry
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
Execution is a
matter of right
after
expiration of
period to
appeal and no
appeal is
perfected
Discretionary
execution upon
good reasons
stated in a
special order
after due
hearing
Sheriff enforces writ of execution
TEST
TO
DETERMINE
Losing party is made to indemnify thru:

payment with interest;
levy and sale of personal property;
levy and sale of real property;
delivery of personal and real property
WHETHER A JUDGMENT OR ORDER IS

FINAL OR INTERLOCUTORY: The test is
whether the judgment or order leaves
nothing more for the court to do with
respect to the merits of the case.
SPECIAL JUDGMENT one that requires
the performance of an act OTHER THAN:
1. The payment of money; and
2. The sale of real or personal
property
Section 1. Execution Upon Judgments
and Final Orders.
EXECUTION ISSUES AS A MATTER OF
RIGHT:
1. on motion
2. upon a judgment or order that
disposes of the action or
proceeding AND
3. upon expiration of the period to
appeal therefrom and NO appeal
has been duly perfected.
IN
REMEDIAL LAW
GENERAL RULE: court cannot refuse

execution
UNLESS:
1. Execution is UNJUST OR IMPOSSIBLE
2. Equitable grounds like a CHANGE IN
SITUATION of the parties which
makes execution inequitable
3. Judgment NOVATED by parties
4. Execution is enjoined
5. Judgment has become DORMANT
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
May issue before

the lapse of period
to appeal
Period to appeal has

already lapsed and
no appeal is
perfected
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
GROUNDS
FOR
EXECUTION
PENDING
APPEAL:
1. Insolvency of the judgment debtor.
2. Wastage of asset by judgment
debtor.
Section 3. Stay of Discretionary Execution.
The party against whom an execution is
directed may file a supersedeas bond to stay
discretionary execution.
SUPERSEDEAS BOND- one filed by a
petitioner and approved by the court before
the judgment becomes final and executory
and conditioned upon the performance of
the judgment appealed from in case it be
affirmed wholly or in part.
Supersedeas bond guarantees satisfaction of
the judgment in case of affirmance on
appeal, not other things like damage to
property pending the appeal


50
MEMORY AID
The court may, in its discretion, order an
execution before the expiration of the
time within which to appeal provided:
1. There is a motion for execution
filed by the winning party
2. There is notice of said motion to
the adverse party; and
3. There are good reasons stated in
a special order after due
hearing.
GENERAL RULE: an order of execution is
NOT appealable otherwise there would
be no end to the litigation between the
parties.
EXCEPTIONS:
1. When the terms of the judgment
are not very clear;
2. When the order of execution
varies with the tenor of the
judgment.
Section 4. Judgments NOT Stayed By
Appeal
1. INJUNCTION
2. RECEIVERSHIP
3. ACCOUNTING
4. SUPPORT
5.
Such
other
judgments
declared to be immediately
executory
unless
otherwise
ordered by the trial court.
Section 6. Execution By Motion Or
Independent Action.
MODE OF ENFORCEMENT
1. By motion within 5 years from
date of its entry
2. By independent action after 5
years from entry AND before it is
barred by statute of limitations
Judgment for support does not become
dormant, thus it can always be executed
by motion.
5-year period may be extended by the
conduct of judgment debtor.
A revived judgment is a new judgment
thus another 5/10-year period to
execute and revive is given the party.
Section 7. Execution In Case Of Death
Of Party.
If the obligor dies AFTER entry but
BEFORE LEVY on his property, execution
will be issued for recovery of real or
personal property or enforcement of a
lien thereon. But for a sum of money,
judgment cannot be enforced by writ but
as a claim
proceedings.
IN
against
REMEDIAL LAW
his
estate/probate
If he dies AFTER a VALID LEVY has been

made, execution sale proceeds.
Section 8. Issuance, Form and Contents of a
Writ of Execution.
Remedies in an order granting or denying
the issuance of a writ of execution
Appeal is the remedy for an order denying
the issuance of a writ of execution.
Section 10. Execution Of Judgments For
Specific Act.
If party REFUSES TO VACATE PROPERTY,
remedy is NOT contempt. The Sheriff must
oust the party. But if demolition is involved,
there must be a special order.
If party REFUSES TO DELIVER, sheriff will
take possession and deliver it to winning
party.
When the party REFUSES TO COMPLY, court
can appoint some other person at the
expense of the disobedient party and the act
done shall have the same effect as if the
required party performed it, the disobedient
party incurs no liability for contempt.
Section
11.
Execution
of
Special
Judgments.
When judgment requires the performance of
any act other than for money and delivery of
property.
The writ of execution shall be served upon
the party required to obey the same and
such party may be punished for contempt if
he disobeys.
LEVY - act by which an officer sets apart or
appropriates a part of the whole of the
property of the judgment debtor for
purposes or the execution sale. The levy on
execution shall create a lien in favor or the
judgment creditor over the right, title and
interest of the judgment debtor in such
property at the time of the levy.
The levy on execution creates a lien in favor
of the judgment creditor subject to prior
liens and encumbrances.
GARNISHMENT - act of appropriation by the
court when property of debtor is in the
hands of third persons
The garnishee or the 3rd person who is in
possession of the property of the judgment
debtor is deemed a forced intervenor.


51
MEMORY AID
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
IN
REMEDIAL LAW
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?
Section
16. Proceedings Where
Property Claimed By Third Person.
REMEDIES of THIRD PARTY CLAIMANT
BY THE JUDGMENT OBLIGOR: Within one (1)

year from the date of registration of the
certificate of sale.
1. Summary hearing before the

court which authorized the
execution;
2. TERCERIA or third party claim
filed with the sheriff;
3. Action for damages on the bond
posted by judgment creditors; or
4. Independent
reinvidicatory
action.
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
If the judgment obligor redeems, no
further redemption is allowed (Sec. 29).
The remedies are cumulative and may be

resorted to by third party claimant
independently of or separately from the
others.
The period of redemption is NOT suspended

by an action to annul the foreclosure sale.
If winning party files a bond, it is only

then that the sheriff can take the
property in his possession. IF NO BOND,
cannot proceed with the sale.
CAN REDEMPTION BE PAID IN OTHER FORMS

THAN CASH?
YES. The rule is liberality in allowing
redemption (aid rather than defeat the
right) and it has been allowed in the case of
a cashiers check, certified bank checks and
even checks.
SALE ON EXECUTION
Notice of sale is required before levied
property can be sold at public auction
(Sec. 15).
The offer to redeem must be accompanied

with a bona fide tender or delivery of the
redemption price.
Remedy against an irregular sale is

MOTION TO VACATE OR SET ASIDE THE
SALE to be filed in the court which
issued the writ.
However, a formal offer to redeem with a

tender is not necessary where the right to
redeem is exercised through the filing of a
complaint to redeem in the courts, within
the period to redeem.
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
RIGHTS OF THE JUDGMENT DEBTOR:

1. Remain in possession of the property
2. Collect rents and profits
3. Cannot be Ejected
4. Use the property in the same
manner it was previously used
5. Make necessary repairs
Section 33. Deed and possession to be
given at expiration of redemption period;
by whom executed or given.
The PURCHASER
CONVEYANCE AND
is entitled to a
POSSESSION of the


52
MEMORY AID
property if there is no redemption. He is
substituted to and acquires all the
rights, title, interest and claims of the
judgment obligor to the property at the
time of levy.
The deed of conveyance is what
operates to transfer to the purchaser
whatever rights the judgment debtor had
in the property. The certificate of sale
after execution sale merely is a
memorial of the fact of sale and does
not operate as a conveyance.
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.
REMEDIES OF THE JUDGMENT CREDITOR

IN AID OF EXECUTION
1.
If the execution is returned

unsatisfied, he may cause
examination of the judgment
debtor as to his property and
income (Section 36)
2.
He may cause examination of

the debtor of the judgment
debtor as to any debt owed by
him or to any property of the
REMEDIAL LAW
judgment debtor in his possession

(Section 37)
3.
If after examination, the court

finds that there is property of the
judgment debtor either in his own
hands or that of any person, the
court may order the property
applied to the satisfaction of the
judgment (Section 37)
4.
If the court finds the earnings of

the judgment debtor are more than
sufficient for his familys needs, it
may order payment in installments
(Section 40)
5.
The court may appoint a receiver

for the property of the judgment
debtor not exempt from execution
or forbid a transfer or disposition or
interference with such property
(Section 41)
6.
If the court finds that the judgment

debtor
has
an
ascertainable
interest in real property either as
mortgagor,
mortgagee,
or
otherwise, and his interest can be
ascertained without controversy,
the court may order the sale of
such interest. (Section 42)
7.
If the person alleged to have the

property of the judgment debtor or
be indebted to him, claims an
adverse interest in the property, or
denies the debt, the court may
authorize the judgment-creditor to
institute an action to recover the
property, forbid its transfer and
may punish disobedience for
contempt (Section 43)
Section 34. Recovery of price if sale is

not effective; revival of judgment.
THE PURCHASER MAY RECOVER THE
PURCHASE PRICE WHEN
1. The purchaser or his successorin-interest FAILS TO RECOVER
POSSESSION of the property or;
2. Purchaser after having acquired
possession is evicted due to:
a. Irregularities
in
the
proceedings concerning the
sale.
b. Reversal or setting aside of
judgment.
c. The fact that the property
was exempt from execution.
d. A third person has vindicated
his claim to the property.
IN
Section 46. When Principal Bound By

Judgment Against Surety.
The principal is bound by the same
judgment from the time he has notice of the
action or proceeding and has been given an
opportunity at the suretys request, to join
the defense.
Section 47. Effect Of Judgment Or Final
Orders.
Refers to judgments which are considered as
conclusive and may be 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


53
MEMORY AID
JUDGMENT or
FINAL ORDER
EFFECT: CONCLUSIVE
AS TO
Against a specific
thing
Title to the 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
BAR BY FORMER CONCLUSIVENESS OF

JUDGMENT
JUDGMENT
There is identity of There is ONLY identity of
parties, subject
PARTIES AND SUBJECT
matter and causes
MATTER
of action
The first judgment
The first judgment is
constitutes as an
conclusive only as to
ABSOLUTE BAR TO matters directly adjudged
ALL MATTERS
and actually litigated in
directly adjudged the first action. Second
and those that action can be prosecuted.
might have been
adjudged.
Par (B) is referred to as bar by former

judgment or RES JUDICATA in
judgments IN PERSONAM
Section 48. Effect Of Foreign Judgment Or

Final Orders:
RES JUDICATA - final judgments on the

merits by a court of competent
jurisdiction is conclusive as to the rights
of the parties or their privies in all later
suits on points determined in the former
judgment.
THE EFFECT OF FOREIGN JUDGMENTS

Provided that the foreign tribunal had
jurisdiction:
REQUISITES:
1. A FINAL judgment or order
2. JURISDICTION over the subject
matter and the parties by the
court rendering it
3. Judgment UPON THE MERITS
4. Between the two cases:
IDENTITY OF PARTIES
IDENTITY OF SUBJECT MATTER
IDENTITY OF CAUSE OF ACTION
THERE IS IDENTITY OF CAUSE OF ACTION
when the two actions are based on the
same delict or wrong committed by the
defendant even if the remedies are
different.
Under the doctrine of res judicata, no
matter how erroneous a judgment may
be, once it becomes final, it cannot be
corrected. The only grounds are lack of
jurisdiction, collusion or fraud.
Par. (C) is known as conclusiveness of
judgment or rule of AUTER ACTION
PENDENT
CONCLUSIVENESS OF JUDGMENT
has the effect of preclusion only of
issues.
parties in both actions may be the
same but the causes of action are
different.
1. IN CASE OF JUDGMENT AGAINST A

SPECIFIC THING, the judgment is
CONCLUSIVE upon the TITLE TO THE
THING;
2. IN CASE OF A JUDGMENT AGAINST A
PERSON,
the
judgment
is
PRESUMPTIVE EVIDENCE of a right as
between the parties and 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
Appeal decision of MTC by filing notice of
appeal and pay appellate court docket
fee in the same MTC within 15 days from
receipt of judgment
THE REGIONAL
TRIAL COURTS
15 days from perfection of appeal,

MTC clerk transmits record to RTC
APPEAL FROM
MTC TO RTC
Notice to parties that an appeal is being

taken from the decision of MTC
Within 15 days from notice of appeal:

appellant submits memorandum to
the RTC
appellee files his own memorandum
15 days from receipt of appellants
memorandum

If uncontested,
AnyCivil
party
may and Special
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure);
Alnaiza Hasiman (Special
Actions
appeal by filing a
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat judgment
(Evidence)is
entered in the
book of entries
petition for
review with the
RTC

54
MEMORY AID
ORDINARY APPEAL - an appeal by notice
of appeal from a judgment or final order
of a lower court on questions of fact and
law.
APPEAL TO THE RTC
Mode of Appeal Notice of Appeal
within fifteen (15) days from receipt
of decision.
After an appeal to the RTC has been
perfected, the MTC loses its
jurisdiction over the case and any
motion for the execution of the
judgment should be filed with the
RTC.
The Summary Rules no longer apply
when the cases is on appeal.
Section 2. When to Appeal.
1. Within 15 days after notice of
judgment or final order;
2. Where a record on appeal is
required, within 30 days from
notice of judgment or final order
by filing a notice of appeal and a
record on appeal;
3. Period to appeal shall be
interrupted by a timely motion
for new trial or reconsideration.
4. No motion for extension of time
to file a motion for new trial or
reconsideration
shall
be
allowed.
Section 3. How to Appeal.
By Notice of Appeal:
1. File a notice of appeal with the
trial court.
2. The notice of appeal must
indicate:
a. parties
b. judgment or final order
appealed from
c. material date showing
timeliness of appeal
3. A copy served on the adverse
party.
4. Payment in full of docket fees
and other lawful fees
ORDINARY APPEAL
PETITION FOR
REVIEW
Matter of right
All the records are
elevated from the
court of origin
Notice of record on
Discretionary
No records are
elevated unless the
court decrees it
Filed with the CA
IN
REMEDIAL LAW
appeal is filed with

the court of origin
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.
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.
Section 8. Appeal from orders dismissing

case without trial; lack of jurisdiction
If lower court dismissed case without trial
on the merits:
RTC may:
1. Affirm, or
2. Reverse, in which case, it shall
remand the case for further
proceedings.
If dismissal is due to lack of jurisdiction
over the subject matter:
RTC may:
1. Affirm; if RTC has jurisdiction, shall
try the case on the merits as if the


55
MEMORY AID
case was originally filed with it,
or
2. Reverse, in which case, it
remand the case for further
proceedings.
If the case was tried on the merits by
the lower court without jurisdiction
over the subject matter:
RTC shall not dismiss the case if it has
original jurisdiction, but shall decide the
case, and shall admit amended pleadings
or additional evidence.
RULE 41
APPEAL FROM REGIONAL
TRIAL COURTS
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.
4.
5.
6.
Order dismissing an action without

prejudice
Order of Execution
Judgments or final orders for or
against one or more of several
parties or in separate claims while
the main case is pending
Orders disallowing or dismissing an
Appeal
Interlocutory orders
Orders denying:
a. Petition for relief;
b. Motion for new trial or
reconsideration; and
c. Motion to Set aside a
judgment,
by
consent,
confession or compromise
on the ground of fraud,
mistake, duress or any
ground vitiating consent.
Remedy in cases where appeal is not

allowed
Special civil action of certiorari or
prohibition if there is lack or excess of
jurisdiction or grave abuse of discretion
or mandamus if there is no performance
of duty.
INTERLOCUTORY ORDER An order
which does not dispose of the case but
leave something else to be done by the
trial court on the merits of the case.
A judgment based on compromise is not
appealable
and
is
immediately
executory.
IN
REMEDIAL LAW
Section 2. Modes of appeal.

Ordinary
Petition for
appeal
review
(appeal by writ [Rule 42]
of error)
Petition for
review on
certiorari
[Rule 45]
Case is decided
Case is
by the RTC in
decided by
its original
the MTC.
jurisdiction
Appealed to
Appealed to the
the RTC.
CA
Petition for
review with
the CA
The case
raises only a
question of
law
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).
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.
Within 15 days Within 15 days Within 15 days

from the notice from notice of from notice of
of the judgment the decision the judgment
for notice of
to be
or order or
appeal and
reviewed or denial of the
within 30 days
from the
MR or new
for records on denial of a MR
trial.
appeal. The
or new trial.
period for filing
is interrupted
by a timely
motion for
reconsideration or new
trial.
Section 7. Approval of record on appeal.

Procedure if the appeal is through a record
on appeal
1. file record on appeal
2. appellee may file an objection
within 5 days from his receipt
thereof
3. if there is no objection the court
may:
approve it as presented; OR
direct its amendment on its own
or upon the motion of the
adverse party
4. if an amendment is ordered the
appellant must redraft the record


56
MEMORY AID
within the time ordered or if
there is no time, within 10 days
from receipt
5. submit the record for approval
with notice on the adverse party
The period to appeal is MANDATORY and
JURISDICTIONAL. Failure to appeal on
time makes the decision final and
executory and deprives the appellate
court of jurisdiction.
However in few instances the court has
allowed due course to such appeals on
strong and compelling reasons of
justice.
IN
REMEDIAL LAW
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
Section 9. Appellants reply brief.
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
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
Failure to file appellant's brief on time is a

ground for dismissal of the appeal.
If a motion to dismiss an appeal has been
filed, it suspends the running of the period
for filing the appellant brief, as the same
would be unnecessary should the motion be
granted.
The failure of the appellant to make specific
assignment of errors in his brief or page
references to the record as required in this
section is a ground for dismissal of his
appeal.
Section 15. Questions that may be raised
on appeal.
The appeal can raise only questions of law
or fact that
1. were raised in the court below; and
2. are within the issues framed by the
parties thereon.
BRIEF vs. MEMORANDUM
BRIEF
MEMORANDUM
Ordinary appeals
Certiorari, Prohibition,
Mandamus, Quo
Warranto and Habeas
Corpus cases
Filed within 45 days
within 30 days
Contents specified Shorter, briefer, only one

by Rules
issue involved - no
subject index or
assignment of errors just
facts and law applicable


57
MEMORY AID
EXCEPTIONS
FACTS:
RULE 45
APPEAL BY CERTIORARI TO THE
SUPREME COURT
RTC, Sandiganbayan or CA
renders decision
Any party files a petition for review on

certiorari w/in 15 days from notice of
final judgment or order of lower court
or notice of denial of motion for
reconsideration or new trial
Appellant serves copies of petition on

adverse parties and to the lower court,
and pay the corresponding docket fees
SC may dismiss the petition or require

the appellee to comment
Section
1.
with Supreme
Filing of petition
Court
If given due course, parties may

submit memoranda
Appeals to the
SC can be taken
SC may affirm, reverse, or modify

judgment of the lower court
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.
to
IN
REMEDIAL LAW
CONCLUSIVENESS
OF
1. When the finding is grounded

entirely on speculations, surmise or
conjecture;
2. When inference made is manifestly
absurd, mistaken or impossible;
3. When the judgment is premised on a
misrepresentation of facts;
4. When there is grave abuse of
discretion in the appreciation of
facts;
5. When the findings of fact are
conflicting;
6. When the CA in making its findings
went beyond the issues of the case
and the same is contrary to both
the admissions of appellants and
appellees;
7. When the findings of fact of the CA
are at variance with those of the
trial court, the SC has to review the
evidence in order to arrive at the
correct findings based on the
record;
8. When the findings of fact are
conclusions without citation of
specific evidence on which they are
based;
9. When the facts set forth in the
petition as well as in the
petitioners main and reply briefs
are
not
disputed
by
the
respondents;
10. The findings of fact of the CA is
premised on the supposed evidence
and is contradicted by the evidence
on record;
11. When certain material facts and
circumstances have been overlooked
by the trial court which, if taken
into account, would alter the result
of the case in that they would
entitle the accused to acquittal.
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
if the appellate court

the determination
can determine the involves evaluation or
issue raised without
review of evidence
reviewing or
GENERAL RULE: the findings of fact of
evaluating the
the CA are final and conclusive and
evidence
cannot be reviewed on appeal to the
Can involve questions
query invites the
SC.
of interpretation of
calibration of the
the law with respect
whole evidence
to certain set of facts considering mainly the
credibility of
witnesses, existence
and relevancy of
specific surrounding
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan,
Charissimae
circumstances
and
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Specialrelation
Civil Actions
and Special
to each
other
and the whole
probabilities of the
situation

58
MEMORY AID
Certiorari under Rule 45 vs. certiorari
under Rule 64/65 ( special civil action)
IN
REMEDIAL LAW
RULE 46
ORIGINAL CASES
Section 2. To what actions applicable.
CERTIORARI UNDER CERTIORARI UNDER

RULE 45
RULE 64/65
petition is based on
questions of law
petition raises the

issue as to whether
the lower court acted
without jurisdiction or
in excess of
jurisdiction or with
grave abuse of
discretion
It is a mode of appeal
Special civil action
Involves the review of Directed against an

the judgment award interlocutory order of
or final order on the
the court or where
merits
there is no appeal or
any other plain,
speedy or adequate
remedy
Must be made within filed not later than 60
the reglementary
days from notice of
period
judgment, order or
resolution appealed
from
Stays the judgment or
Unless a writ of
order appealed from preliminary injunction
or temporary
restraining order is
issued does not stay
the challenged
proceeding
The petitioner and the The parties are the
respondent are the
aggrieved party
original parties to the
against the lower
action, and the lower court or quasi-judicial
court or quasi-judicial
agency and the
agency is not
prevailing parties
impleaded
Motion for
Motion for
reconsideration is not reconsideration or for
required
new trial is required
If a motion for
reconsideration or new
trial is filed, the
period shall not only
be interrupted but
another 60 days shall
be given to the
petitioner ( SC Admin.
Matter 002-03 )
The court is in the
exercise of its
appellate jurisdiction
and power of review
Court exercises
original jurisdiction
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.
Section 4. Jurisdiction over person, how

acquired.
JURISDICTION IS ACQUIRED:
1. Over the PETITIONER - by filing of
the petition.
2. Over the RESPONDENT - by the
service on the latter of the order or
resolution indicating the courts
initial action on the petition and
NOT by the service on him of the
petition or by his voluntary
submission.
Section 5. Action by the court.
PROCEDURAL OUTLINE (original cases in
the Court of Appeals)
1. Filing of the petition
2. Order to acquire jurisdiction over
respondents OR Outright dismissal
for
failure
to
comply
to
requirements also form and payment
of docket and other legal fees.
3. Require
respondents
to
file
COMMENT within 10 days from
NOTICE
4. Court may require the filing of a
REPLY or such other pleadings as it
may deem necessary
5. Determination of FACTUAL ISSUES,
the court may delegate 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.


59
MEMORY AID
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
Effect of
judgment
LACK OF
JURISDICTION
4 years from Before it is barred

discovery
by laches or
estoppel
Trial court
will try the
case
Original action
may be refiled
Section. 5. Action by the court.

Two stages:
1. A preliminary evaluation of the
petition for prima facie merit
therein, and
2. The issuance of summons as in
ordinary civil cases and such
appropriate
proceedings
thereafter as contemplated in
Sec. 6.
The rule allows the CA to dismiss the
petition outright as in special civil
actions.
For the court to acquire jurisdiction over
the respondent, the rule requires the
issuance of summons should prima facie
IN
REMEDIAL LAW
merit be found in the petition and the same

is given due course.
RULE 48
PRELIMINARY CONFERENCE
Section 3. Binding effect of the results of
the conference
In the CA, this procedural device may be
availed of not only in original actions but
also in cases on appeal wherein a new trial
was granted on the ground of newly
discovered evidence. The CA can act as a
trier of facts, hence the preliminary
conference authorized is a convenient
adjunct to such power and function.
RULE 49
ORAL ARGUMENT
Section 3. No hearing or oral argument for
motions
Motions in the SC and the CA do not contain
notices of hearing as no oral arguments will
be heard in support thereof; and if the
appellate court desires to hold a hearing
thereon, it will itself set the date with
notice to the parties.
RULE 50
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


60
MEMORY AID
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
principles or not, so long as the facts on
which such decision was predicated
continue to be the facts before the
court.
But this rule does not apply to
resolutions rendered in connection with
the case wherein no rationale has been
expounded on the merits of that action.
Section 5. Form of Decision
The requirement for the statement of
facts and the law refers to a decision or
for that matter a final resolution. The
same are not required on minute
resolutions since these usually dispose of
the case not on its merits but on
procedural or technical considerations.
Although the court may, if it feels
necessary, briefly discuss the matter on
the merits in an extended resolution.
With respect to petitions for review and

motions
for
reconsideration,
the
Constitution merely requires a statement
of the legal basis for the denial thereof
or refusal of due course thereto. The
court may opt, but it is not required to
issue an extended resolution thereon.
Section
6.
HARMLESS
ERROR
The court, at every stage of the
proceeding, must disregard any error or
defect which does not affect the
substantial rights of the parties such as
error in admission or exclusion of
evidence or error or defect in the ruling
or order.
IN
REMEDIAL LAW
Section 8. Questions that may be decided

Only errors claimed and assigned by a party
will be considered by the court, except
errors affecting its jurisdiction over the
subject matter. To this exception has now
been added errors affecting the validity of
the judgment appealed from or the
proceedings therein.
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
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;
2. disciplinary proceedings
against
members of the judiciary and
attorneys


61
MEMORY AID
3. cases affecting ambassadors,
other public ministers and
consuls
B. APPEALED CASES Mode of Appeal
In criminal cases where the penalty
imposed is death or reclusion perpetua,
an appeal made to the Supreme Court is
through a notice of appeal filed with the
RTC in all other cases, an appeal made
to the supreme court is through a
petition for review on certiorari.
PROVISIONAL REMEDIES
Also known as ancillary or auxiliary
remedies, are writs and processes
available during the pendency of the
action which may be resorted to by a
litigant to preserve and protect certain
rights and interests therein pending
rendition, and for purposes of the
ultimate effects, of a final judgment in
the case.
The following are the provisional

remedies provided for in the Rules of
Court
1. Preliminary Attachment (Rule
57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)
PD 1818 prohibits the issuance of
injunctive writs not only against
government entities but also against any
person or entity involved in the
execution,
implementation,
and
operation of government infrastructure
projects.
RULE 57
PRELIMINARY ATTACHMENT
The proper party may have the property
of the adverse party attached at the
commencement of the action or at any
time before entry of judgment.
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
IN
REMEDIAL LAW
from the Phils. with

defraud his creditors;
intent
to
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 or a court,
agency or a person to refrain from a
particular act or acts.
PRELIMINARY MANDATORY Injunction an
order requiring the performance of a
particular act or acts.
Grounds
1. applicant is entitled to the relief
demanded; or
2. commission, continuance or nonperformance of the act complained
of would work injustice to the
applicant if not enjoined; or
3. the acts sought to be enjoined
probably violates the rights of the
applicant respecting the subject of
the action and tending to render the
judgment ineffectual.
Section 5.


62
MEMORY AID
There must be prior notice to the person
sought to be enjoined and a hearing
before preliminary injunction may be
granted.
If great or irreparable injury would
result to the applicant, the court may
issue ex parte a temporary restraining
order, effective only for 20 days from
service on the party sought to be
enjoined.
If the matter is of extreme urgency and
the applicant will suffer grave injustice
and irreparable injury, the judge may
issue a TRO effective only for 72 hours
from issuance. Its effectivity may be
extended after conducting a summary
hearing w/in the 72-hrs period until the
application for preliminary injunction
can be heard.
The total period of effectivity of the TRO
shall not exceed 20 days, including the
72 hours.
If application is denied or not resolved
within said period, the TRO is deemed
automatically vacated.
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
IN
REMEDIAL LAW
does not involve

jurisdiction of the
court
Based on the ground

that the court against
whom the writ is
sought had acted
without or in excess of
jurisdiction
it may be the main

action itself or just a
provisional remedy
Always the main

action
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 insufficient to
discharge the mortgage debt or that
it has been agreed upon by the
parties;
3. after judgment, to preserve the
property during the pendency of an
appeal or to dispose of it accdg. to
the judgment or to aid execution;
4. when appointment of receiver is the
most convenient and feasible means
of preserving, administering or
disposing of the property in
litigation.
A person who refuses or neglects to deliver
property within his control and which is the
subject of the action to the receiver may be
punished for contempt and liable to the
receiver for the money or the value of the
property PLUS damages.
The receiver shall also file a bond before
entering upon his duties separate from the
bond filed by the applicant.
RULE 60
REPLEVIN
The sheriff shall retain the property for 5
days. Within such period, the adverse party
may object to the sufficiency of the
applicants bond or surety or he may file a
counter-bond.
After 5 days and the adverse party failed to
object or his counter-bond is insufficient,
the sheriff shall deliver the property to the
applicant.


63
MEMORY AID
IN
REMEDIAL LAW
Distinctions
REPLEVIN
ATTACHMENT
May be sought only

when the principal
action is recovery of
personal property.
Available even if
recovery of property is
only incidental to the
relief sought.
Can be sought only when May be resorted to even

defendant is in actual
if the property is in
possession of the
possession of a third
property.
person.
CANNOT be availed of
when property is in
custodia legis
Can be AVAILED of even

if property is in
CUSTODIA LEGIS.
Available before
defendant answers
Available from
commencement but
before entry of
judgment
Bond is DOUBLE the

value of the property
Bond is FIXED by the

court
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.


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San Beda College of Law

REMEDIAL LAW COMMITTEE

San Beda College of Law

One party prosecutes

The distinction is important in determining

Ownership or personal property is Both real and

The distinction is significant in the

Ex. Action to recover

Ex. Action to recover

Section 5. Commencement of action.

REMEDIAL LAW COMMITTEE

San Beda College of Law

delict or wrongful act remedial right or right

Section 4. Splitting a single cause of

REMEDIAL LAW COMMITTEE

San Beda College of Law

Section 6. Misjoinder of causes of action.

who are necessary to a complete

3. all those who ordinarily should be joined

REMEDIAL LAW COMMITTEE

San Beda College of Law

Under the present rule, a person need

Requisites of permissive joinder of parties.

The action cannot

The action can

The case may be

They are those with

They are those whose

JOINT DEBTORS indispensable party with

The non-inclusion of a necessary party may

PERMISSIVE JOINDER the aggregate

The court may order the inclusion of the

REMEDIAL LAW COMMITTEE

San Beda College of Law

Section 12. Class suit.

There is one single

There are multiple

Section 14. Unknown identity or name of

Section 15. Entity without

They may be sued under the name by which

A. Death of party; duty of counsel (Sec.

REMEDIAL LAW COMMITTEE

San Beda College of Law

In case of minor heirs, the court may

1. The action must primarily be for

The substitute defendant need not be

2. The claim, subject of the action,

If there is failure to notify the fact of

If defendant dies before entry of final

Place where the action Power of the court to

Jurisdiction over the

May be changed by the Cannot be the subject

The rule on VENUE IS NOT APPLICABLE in

REMEDIAL LAW COMMITTEE

San Beda College of Law

Section 3. Venue of actions against nonresidents.

a. for personal actions where

Section 2. Venue of personal actions.

Means of waiving venue:

REMEDIAL LAW COMMITTEE

San Beda College of Law

W/in 5 days after

W/in 10 days from