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LECTURE NOTES ON CIVIL PROCEDURE

Revised August 2005


WHAT IS CIVIL PROCEDURE
It is the procedure governing the filing,
processing and adjudication of civil actions. It
essentially is the lawyers law that defines the rules of the
game that lawyers and judges play.

complaint and the law in force at the time of the


commencement of the action.
2.1

Determined by allegations in the complaint

2.1.a
The facts allege dispossession of the property by
force the allegations make out a case for forcible entry
The law provides that such cases fall within the jurisdiction
of the MTC.
2.1.b
The allegation is for recovery or payment of the
sum of 500,000, subject matter jurisdiction is with the RTC

It is embraced in Rules 1 to 71 of the Rules of


Court and after its revision, is now commonly known as the
1997 Rules of Civil Procedure. It is divided into the following
topics:
General Provisions (Rule 1),
Ordinary Civil Actions (Rules 2-5),
Procedure in Regional Trial Courts (Rules 639),
Appeals (Rules 40-43),
Procedure in the Court of Appeals (Rules 4455),
Procedure in the Supreme Court (Rule 56),
Provisional Remedies (Rules 57-61), and
Special Civil Actions (Rules 62-71).

2.1.c
The plaintiff claims PHP 500,000 but after trial he
is only entitled to PHP 100,000, subject matter jurisdiction
is with the RTC. See: Ratilla v. Tapucar, 75 SCRA 64

Included within its scope are the 1991 Rules on Summary


Procedure and Local Government Code provisions on the
Katarungang Pambarangay.

2.2
Determined by the law in force at the time
of the commencement of the action

JURISDICTION

Any discussion of procedural rules should always


be preceded by a discussion of jurisdiction.
The presence of jurisdiction gives rise to the application of
the rules for the purpose of resolving the action that is
brought before a court. Absent jurisdiction, the only thing a
court can do as provided by the rules is to dismiss the action.
If a court acts without jurisdiction, all its acts are null and
void. Further, any decision it may render is not a decision
in contemplation of law and cannot be executory. See:
Abbain v. Chua 22 SCRA 748, Estoesta vs. CA 179 SCRA
203, Dava v. People 202 SCRA 62
Simply defined JURISDICTION refers to the power and
authority of a court or tribunal to hear, try and decide a
case. It has also been defined as the authority by which
courts and judicial officers take cognizance of and decide
cases.

REQUISITES FOR A VALID EXERCISE OF


JURISDICTION

1.
It must have jurisdiction over the persons of
the parties. It is acquired over the plaintiff upon his filing
of a complaint. On the other hand, it is acquired over the
defendant by his voluntary appearance before the court or
the employment of the coercive power of legal process.
2.
It must also have jurisdiction over the subject
matter in controversy Jurisdiction over the subject matter
of the compliant as determined by the allegations in the

2.1.d
It cannot be made to depend on the defenses
interposed in an answer or a motion to dismiss AS IT IS
THE
COMPLAINT,
PETITION
OR
INITIATORY
PLEADING THAT BRINGS THE CASE FOR TRIAL AND
JUDGMENT ALTHOUGH THE DEFENDANT MAY IN
HIS ANSWER OR MOTION ATTACK JURISDICTION if
the Rule were otherwise NO ACTION CAN PROSPER as
all the defendant has to do is to allege that jurisdiction is
vested in another court. The EXCEPTION is the defense of
agricultural tenancy. See Section 3, Rule 70

2.2.a
If action for payment of a sum of money is filed
after the effectivity of RA 7961 on April 15, 1994 (Expanding
the jurisdiction of the MTC and implemented by Adm.
Circular 9-94-June 14, 1994) interest, damages of whatever
kind ( as long as incidental), attorneys fees, litigation
expenses and costs are not to be considered in fixing the
jurisdictional amount, but must be specifically alleged and
filing fees paid thereon
2.2.b
There is a shipment of goods from HK to Manila.
The shipment was short. Consignee sued in Manila, carrier
moved to dismiss for lack of jurisdiction since the Bill of
Lading provided that in case of dispute, suit must be
brought in HK. Motion will not prosper as jurisdiction is
conferred by law and cannot be stipulated by the parties.

DISTINCTIONS BETWEEN THE NATURE


OF JURISDICTION EXERCISED BY THE
COURTS

1.
AS TO THE NATURE OF THE EXERCISE OF
JURISDICTION it is General, meaning it is exercised
over all kinds of cases or Limited, meaning it exercised
over and extends only to a particular or specified cases.
2.
AS TO THE NATURE OF THE CAUSE OR
THE ACTION it is Original, meaning it is exercised by
courts in the first instance or Appellate, meaning it is
exercised by a superior court to review and decide a cause or
action previously decided by a lower court.
3.
AS TO THE EXTENT OF THE EXERCISE OF
JURISIDICTION it is Exclusive, meaning it is confined
to a particular court or CONCURRENT, meaning two or
more courts have jurisdiction at the same time and place. In

this instance, the court which has first validly acquired


jurisdiction takes it to the exclusion of the others.
NOTE THOUGH the DOCTRINE OF HIERARCHY OF
COURTS which requires litigants to initially seek
proper relief from the lower courts in those cases where
the Supreme Court has concurrent jurisdiction with the
Court of Appeals and the Regional Trial Court to issue the
extraordinary writs of certiorari, prohibition or mandamus.
The Supreme Court is a court of last resort and its
jurisdiction to issue extra-ordinary writs should be exercised
only when absolutely necessary, or where serious and
important reasons therefor exist. See Pearson v. IAC, 295
SCRA 27. Also, concurrence of jurisdiction does not grant
any party seeking any of the extra-ordinary writs the
absolute freedom to file the petition with the court of his
choice. See: Ouano vs. PGTT International Investment
Corporation, 384 SCRA 587
4.
AS TO SITUS it is Territorial, meaning it is
exercised within the limits of the place where the
court is located or Extra-Territorial meaning it is exercised
beyond the confines of the territory where the court is
located.

WHAT HAPPENS WHEN JURISDICTION IS


ACQUIRED

Jurisdiction once acquired continues until the case


is terminated. It is not affected by subsequent legislation
placing jurisdiction in another tribunal. See Mercado vs.
Ubay, 187 SCRA 719. The exception is when the expressly
provides for retroactivity. See Latchme Motoomull v. Dela
Paz, 187 SCRA 743

DOCTRINE OF PRIMARY JURISDICTION

That which vests in an administrative tribunal the


jurisdiction to determine a controversy requiring the
exercise of sound administrative discretion stated
otherwise if jurisdiction is vested upon an administrative
body, no resort to courts can be made until the
administrative body shall have acted on the matter.

WHEN
CAN
THE
ABSENCE
JURISDICTION BE QUESTIONED

OF

The general rule is jurisdiction may be


questioned at any stage of the proceedings, even on
appeal, BUT a party may be barred from raising it on the
ground of laches or estoppel when he has actually
invoked the jurisdiction of the court by participating in the
proceedings, then belatedly questions lack of jurisdiction
after judgment has gone against him. See: Tijam v.
Sibonghanoy, 23 SCRA 29, Lopez v. Northwest 223 SCRA
469, Soliven v. FastForms Phil. Inc, GR No. 139091, October
18, 2004, citing PNOC v. CA,. 297 SCRA 402, APT v. CA 300
SCRA 597 and Producers Bank v. NLRC, 298 SCRA 517. See
also: Sections 2 and 3, Rule 47 Annulment of Judgment
based on extrinsic fraud or lack of jurisdiction. If based on
lack of jurisdiction before it is barred by laches or
estoppel.

PROBLEM AREAS AFFECTING


JURISDICTION

1.
ACTIONS
ESTIMATION

INCAPABLE

OF

PECUNIARY

1.1
Generally, it is one where the basic issue is
something other than the right to recover money, where the
money claim is incidental to or is a consequence of the
principal relief being sought. It is a claim, the subject of
which cannot be estimated in terms of money.
1.2
Examples: Action for specific performance
although damages are being sought BUT if damages are part
of an alternative prayer, jurisdiction should be based on the
amount. OTHERS: Action for appointment of receivers,
expropriation, interpleader, support, and rescission
1.3
In determining which court has jurisdiction,
the applicable test is the NATURE OF THE ACTION
TEST (Determination as to whether or not the action is
capable of pecuniary estimation. If not capable, jurisdiction
is with the RTC. If capable-jurisdiction is determined by the
amount claimed/value of the personal property)
BUT this test must yield to the PRIMARY OBJECTIVE
TEST (where notwithstanding the fact that the action
appears to be incapable of pecuniary estimation, if the
primary objective is to recover real property, jurisdiction will
be determined by the assessed value of the real property)
2.
DETERMINATION OF AMOUNTS OF THE
CLAIM TO DETERMINE JURISDICTION AND
PAYMENT OF DOCKET FEES 2.1
Foreclosure of chattel to collect 100K but
actual value is 500K MTC RULE: Jurisdiction is
determined by the amount claimed by the plaintiff.
2.2
Action for removal of improvements with prayer
for 10,000 for attorneys fees RTC incapable of pecuniary
estimation.
2.3
Action to collect sum of
money within
jurisdiction of the MTC but with accessory prayer for
damages beyond MTC jurisdiction MTC - if action is
personal, damages are to be excluded (Adm Circ. 09-94
June 14, 1994) for determining jurisdiction but payment is
still to be collected Damages, Interest, Attorneys fees and
Litigation costs.
BUT if action is for damages over 400K RTC because it
is the main cause of action or one of the causes of
action.
3.
IF DOCKET FEES ARE INCORRECT The
trial court should allow the plaintiff to pay within a
reasonable period of time before the expiration of the
applicable prescriptive or reglamentary period EFFECT
defendant must move to dismiss the complaint on the
ground of lack of jurisdiction if not he may be considered
to be in estoppel. See NSC v. CA GR 123215, Feb 2, 1999)
4.
DOCKET FEES FOR MAIN/REAL ACTION
PAID BUT THOSE FOR RELATED DAMAGES ARE
NOT PAID Trial court may expunge the claims or allow
on motion, a reasonable time for amendment of the
complaint or accept payment of the requisite legal fees.

or resolutions of RTCs and quasi-judicial agencies,


such as the Securities and Exchange Commission,
Sandiganbayan and National Labor Relations
Commission.

5.
IF CLAIMS ARE UNSPECIFIED BUT ARISE
AFTER FILING The required additional fee shall
constitute a lien on the judgment

1.

LEVELS OF SUBJECT MATTER


JURISDICTION

3.
JURISDICTION
COURTS

JURISDICTION OF THE SUPREME COURT

The jurisdiction of the Supreme Court in civil cases


of which it cannot be deprived and which cannot be
diminished by Congress is to review, revise, reverse,
modify, or affirm on appeal or certiorari as the law or the
Rules of Court may provide, final judgments and orders of
lower courts in:
(a) all cases in which the constitutionality or validity of
any treaty, international or executive agreement,
law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question;
(b) all cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in
relation thereto;
(c) all cases in which the jurisdiction of any lower
court is in issue; and
(d) all cases in which only an error or question of law is
involved.
The foregoing Constitutional definition is of
appellate jurisdiction. Congress, however, is not prohibited
from increasing or adding to this Constitutionally-defined
jurisdiction. And so Congress has given the Supreme Court
original jurisdiction over cases affecting ambassadors, other
public ministers, and consuls and petitions for the issuance
of writs of certiorari, prohibition and mandamus against
the Court of Appeals. Congress has also vested the Supreme
Court with jurisdiction, concurrent with the RTCs, over
petitions for the issuance of the writs of certiorari,
prohibition, habeas corpus, and in actions brought to
prevent and restrain violations of law concerning
monopolies and combinations in restraint of trade.
The appellate jurisdiction in civil cases of the
Supreme Court as defined in the Constitution had been
revised and expanded a little bit more by law to include all
cases
involving
petitions
for
naturalization
or
denaturalization, all decisions of the Auditor General, if the
appellant is a private person or entity, and final judgments
or orders of the Commission on Elections.

OF

REGIONAL

TRIAL

The RTCs are our second-level trial courts. As the


Supreme Court and the Court of Appeals, RTCs have both
original and appellate jurisdiction in civil cases.
Their original jurisdiction is concurrent with
the Supreme Court and the Court of Appeals in the issuance
of writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunctions but, as issued by
RTCs, these writs may be enforced only within their
respective regions, and over actions affecting ambassadors
and other public ministers and consuls.

The original jurisdiction of RTCs, which is


exclusive, is broad and covers the following cases:

(1) all civil actions in which the subject of the litigation is


incapable of pecuniary estimation;
(2) all civil actions which involve the title to, or possession
of, real property, or any interest therein, where the assessed
value of the property involved exceeds Two hundred
thousand pesos (P200,000.00) or for civil actions in Metro
Manila, where such value exceeds Four hundred thousand
pesos (P400,000.00) except actions for forcible entry into
and unlawful detainer of lands or buildings, original
jurisdiction over which is conferred upon the Metropolitan
Trial Courts, Municipal Trial Courts, and Municipal Circuit
Trial Courts;
(3) all actions in admiralty and maritime jurisdiction where
the demand or claim exceeds Two hundred thousand pesos
(P200,000.00) or in Metro Manila, where such demand or
claim
exceeds
Four
hundred
thousand
pesos
(P400,000.00);
(4) all matters of probate, both testate and intestate, where
the gross value of the estate exceeds Two hundred thousand
pesos (P200,000.00) or, in probate, both testate and
intestate, where the gross value of the estate exceeds Two
hundred thousand pesos (P200,000.00) or, in probate
matters in Metro Manila, where such gross value exceeds
Four hundred thousand pesos (P400,000.00);

OF

(5) all actions involving the contact of marriage and marital


relations;

The Court of Appeals has both original and


appellate jurisdiction.

(6) all cases not within the exclusive jurisdiction of any


court, tribunal, person or body exercising jurisdiction of any
court, tribunal, person or body exercising judicial or quasijudicial functions;

2.
JURISDICTION
APPEALS

OF

THE

COURT

Its original jurisdiction, which is exclusive, is


over actions for annulment of RTC judgments.
Its original jurisdiction, which is concurrent with
the Supreme Court and the RTCs, is to issue writs
of mandamus, prohibition, certiorari, habeas
corpus and quo warranto, and auxiliary writs or
processes, whether or not in aid of its appellate
jurisdiction.
The appellate jurisdiction of the Court of
Appeals, which is exclusive, is over final judgments

(7) all civil actions and special proceedings falling within the
exclusive jurisdiction of a Juvenile and Domestic Relations
Court and of the Court of Agrarian Relations as then
provided by law; and
(8) all other cases in which the demand, exclusive of
interest, damages of whatever kind, attorneys fees, litigation
expenses, and costs or the value of the property in
controversy exceeds Two hundred thousand pesos
(P200,000.00) or, in such other cases in Metro Manila,

where the demand, exclusive of the above-mentioned items


exceeds For hundred thousand pesos (P400,000.00).

The appellate jurisdiction of the RTCs is over all


cases decided by Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial
Courts in their respective territorial jurisdiction.

The term damages of whatever kind has


been specially defined by the Supreme Court for purposes of
determining the jurisdictional amount in respect to the
jurisdiction of the RTC. This term is understood to apply
only to cases when the damages are merely incidental to or a
consequence of the main cause of action, and that therefore
where the claim for damages is the main cause of action or
one of the causes of action, the amount of the claim shall be
considered in determining the jurisdiction of the court.
The Supreme Court has however designated certain
branches of the RTCs to handle exclusively certain cases as
corporate and intellectual property cases.

RULE 1 GENERAL PROVISIONS


The Rules shall be known and cited as the Rules of Court.1
They shall apply in all courts, except as otherwise provided
by the Supreme Court2 in civil, criminal and special
proceedings.3 They do not apply to election cases, land
registration, cadastral, naturalization and insolvency, and
other cases not herein provided, except by analogy or in
suppletory character and whenever practicable and
convenient.4
For purposes of the subject matter, only Rules 1 to 71 or
the 1997 Rules of Civil Procedure shall be discussed herein.
1.
A Civil Action is one by which a party sues
another for the enforcement or protection of a right or
the prevention or redress of a wrong.
Examples: To enforce payment of a loan or to eject an
intruder on ones property.
1.1

4.
JURISDICTION OF METROPOLITAN TRIAL
COURTS, MUNICIPAL TRIAL COURTS AND
MUNICIPAL CIRCUIT TRIAL COURTS
The MTCs are the first-level trial courts in this
country. They have therefore no appellate jurisdiction and
all their jurisdiction is exclusive and encompasses the
following cases:
(1) all civil actions and probate proceedings, testate and
intestate, including the grant of provisional remedies in
proper cases, where the value of the personal property,
estate, or amount of the demand does not exceed Two
hundred thousand pesos (P200,000.00) or, in Metro Manila
where such personal property, estate, or amount of the
demand does not exceed Four hundred thousand pesos
(P400,000.00), exclusive of interest, damages of whatever
kind, attorneys fees, litigation expenses, and costs, the
amount of which must be specifically alleged: Provided,
That 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 action irrespective of whether
the causes of action arose out of the same or different
transactions;
(2) cases of forcible entry and unlawful detainer: Provided,
That when, in such cases, the defendant raises the question
of ownership in his pleadings and the question of possession
cannot be resolved without deciding the issue of ownership,
the issue of ownership shall be resolved only to determine
the issue of possession; and
(3) all civil actions which involve title to, or possession of,
real property or any interest therein where the assessed
value of the property or interest therein does not exceed Two
hundred thousand pesos (P200,000.00) or, in civil actions
in Metro Manila, where such assessed value does not exceed
Four hundred thousand pesos (P400,000.00) exclusive of
interest, damages of whatever kind, attorneys fees, litigation
expenses and costs.
The MTCs may however be assigned by the
Supreme Court to hear and determine certain cadastral
cases and petitions for habeas corpus.

A Civil Actions may be:

1.1.a
ORDINARY or SPECIAL both are governed by
the rules for ordinary civil actions, subject to specific rules
prescribed for a special civil action.
1.1.b
IN PERSONAM - brought against a person based
on personal liability to the person bringing the action
1.1.c
IN REM - it is directed against the thing itself
rather than the person
1.1.d
QUASI IN REM names a person as a defendant
but its object is to subject the persons interest in property to
a corresponding lien or obligation (Ramos vs. Ramos, 399
SCRA 43)
1.2
Distinguishing
actions:

it

from

other

kinds

of

1.2.a
CRIMINAL - one by which the state prosecutes a
person for an act or omission punishable by law.
1.2.b
SPECIAL PROCEEDING remedy by which a
party seeks to establish a status, right or a particular fact.
1.3
DISTINCTIONS BETWEEN A CIVIL ACTION
AND SPECIAL PROCEEDINGS

CIVIL ACTION

SPECIAL PROCEEDINGS

Adversarial-between
plaintiff and defendant

not necessarily as it may


involve only 1party

formal demand of a right


by one against the other.

declaration of a status, right or


a particular fact.

Section 1, Rule 1, 1997 Rules of Civil Procedure


Supra, Section 2, Rule 1
3
Supra, Section 3, Rule 1
4
Supra,,Section 4, Rule 1
2

WHEN AN ACTION IS COMMENCED

An action is commenced upon the filing of the


original complaint in court. If an additional defendant is
impleaded in a later pleading it is commenced on the date
of the filing of the later pleading IRRESPECTIVE OF
WHETHER THE MOTION FOR ITS ADMISSION, IF
NECESSARY, IS DENIED BY THE COURT.5
1.
Note though that FILING IS DEEMED DONE
ONLY UPON PAYMENT OF THE DOCKET FEE
REGARDLESS OF ACTUAL DATE OF THE FILING OF
THE COMPLAINT6 (MAGASPI V. RAMOLETE 115 S 193)
EXCEPT if the plaintiff is authorized to litigate as a
pauper litigant he is exempt from filing fees.

4.
Concommitant to a liberal application of the rules
of procedure should be an effort on the part of the party
invoking liberality to adequately explain his failure to abide
by the rules.12
5.
The rules and procedure laid down for the trial
court and the adjudication of cases are matters of public
policy. They are matters of public order or interest which
can in no wise be changed or regulated by agreements
between or stipulations by parties to an action for their
singular convenience.13 (Republic vs. Hernandez, 253 SCRA
509)
6.
The Supreme Court has the power to suspend or set
aside its rules in the higher interest of justice.14

2.
Note that the commencement of the action
interrupts the period of prescription as to the parties to the
action.7

HOW SHOULD THE RULES BE


CONSTRUED

The rules shall be construed liberally in order to promote


their objective of securing a just speedy and inexpensive
disposition of every action or proceeding.8
1.
Liberal construction is the controlling principle
to effect substantial justice. Litigation should as much as
possible, be decided on their merits, and not on
technicalities. It does not mean, however, that procedural
rules are to be ignored or disdained at will to suit the
convenience of a party.9
2.
Liberal construction of the rules should be made by
the courts in cases:
(1) a rigid application will result in manifest failure or
miscarriage of justice, especially if a party successfully shows
that the alleged defect in the questioned final and executory
judgment is not apparent on its face or from the recitals
contained therein
(2) where the interest of substantial justice will be served
(3) where the resolution of the motion is addressed solely to
the sound and judicious discretion of the court
(4) where justice to the adverse party is not commensurate
with the degree of this thoughtlessness in not complying
with the procedure prescribed.10
3.
Note that in doing so, substantial justice and equity
considerations must not be sacrificed. Periods for filing are
as a matter of practice, strictly construed. Neither can
liberality of the rules be invoked if it will result in the
wanton disregard of the rules or cause needless delay in the
administration of justice.11

Supra, Section 5, Rule 1


Magaspi v Ramolete, 115 SCRA 193
7
Cabrera v Tiano,8 SCRA 542
8
Supra,Section 6, Rule 1
9
Vda De Toledo v Toleda, 417 SCRA 260
10
Seapower Shipping Enterprises, Inc. v CA, 360 SCRA
173, Tan v CA, 295 SCRA 755
11
El Reyno Homes v Ong, 397 SCRA 563
6

RULE 2

CAUSE OF ACTION

The basis of an ordinary civil action is a cause of action. 15 A


cause of action is the act or omission by which a party
violates a right of another.16
WHAT ARE THE REQUISITES OF A CAUSE OF
ACTION
The requisites for a cause of action are:
(1) a right in favor of the plaintiff by whatever means and
under whatever law it arises or is created
(2) an obligation on the part of the defendant to respect and
not to violate such right
(3) an act or omission on the part of the defendant
constituting a violation of the plaintiffs right.17

DISTINGUISHING IT FROM RIGHT OF


ACTION

RIGHT OF ACTION is the right to commence and


maintain an action, it is a remedial right that depends on
substantive law, while a
CAUSE OF ACTION is a formal statement of the operative
facts
that give rise to such remedial right which is a
matter of statement and is governed by procedural law.
WHEN ALL ELEMENTS OF A CAUSE OF ACTION
ARE PRESENT, THERE WILL BE A RIGHT OF
ACTION
The distinction is best used to explain the principle that the
existence of a cause of action may only be ascertained
from the allegations of the complaint.18

12

Sebastian v Hon. Morales, 397 SCRA 549, Duremdes v


Duremdes, 415 SCRA 684
13
Republic v Hernandez, 253 SCRA 509
14
Fortica v Corona, GR No. 131457, April 24, 1998
15
Supra, Section 1, Rule 2
16
Supra, Section 2, Rule 2
17
Navao v CA, 251 SCRA 545
18
Equitable Bank v CA, 425 SCRA 544
5

HOW MANY SUITS CAN BE FILED FOR A


CAUSE OF ACTION

A party may not institute more than one suit for a single
cause of action.19
1. If a party institutes more than one suit, the filing of one
or a judgment upon the merits in anyone is available as a
ground for the dismissal of the others.20 This is also known
as SPLITTING A CAUSE OF ACTION.
2. The SINGLENESS OF CAUSE OF ACTION of a
cause of action is determined as follows:
2.1
In an action EX DELICTO, the singleness of a
cause of action lies in the singleness of the delict or wrong
violating the right of a person. If however, one injury results
from several wrongful acts, only one cause of action arises.
Example: A party who is injured could not maintain an
action for damages based on a breach of the contract of
carriage against the owner of the vehicle in which he was
riding and another action for quasi-delict against the
driver/owner of the offending vehicle. The recovery under
one remedy necessarily should bar recovery under another.
This, in essence, is the rationale for the proscription in our
law againt double recovery for the same act or omission
which, obviously stems from the fundamental rule against
unjust enrichment.21
2.2
In an action EX CONTRACTU, the rules are as
follows:
2.2.a
In a single or indivisible contract, only one
cause of action arises from a single or several breaches.
Example: In a contract of sale of personal property by
installments, the remedies of the unpaid seller is alternative,
they are:
(1) elect fulfillment
(2) cancel the sale, should the vendees failure to
pay cover two or more installments, and
(3) foreclose the mortgage on the thing sold if one
has been constituted should the vendee fail to pay
two or more installments. 22
2.2.b
If the contract provides for several obligations,
each obligation not performed gives rise to a single
cause of action. But if upon filing of the complaint several
obligations have already matured, all of them shall be
integrated into a single cause of action.
Example: Contract for delivery of goods in part or over a
period.
2.2.c
If the contract is divisible in its performance, and
the future performance is not yet due, but the obligor has
already manifested his refusal to comply, the contract is
entire and the breach is total. Thus, there can only be one
action.23

IF A PARTY HAS SEVERAL CAUSES OF


ACTION

He can join his causes of action24 as he may in one pleading


assert, in the alternative or otherwise, as many causes of
action as he may have against the opposing party, subject to
the following conditions:
1.
party joining the causes of action shall comply with
the rule on joinder of parties, which provides that :
- All persons in whom or against whom any right
to relief is respect to or arising out of the same transaction is
alleged to exist, whether jointly, severally or in the
alternative, may except as otherwise provided in these rules,
join as plaintiffs or be joined as defendants in one
complaint, where any question of law or fact common to all
such plaintiffs or to all such defendants may arise in the
action.25
2.
joinder does not allow the inclusion of special civil
actions or actions governed by special rules .
Example: An action for a sum of money cannot be joined
with an action for iIlegal detainer
3.
where causes of action are between same parties
but pertain to different venues or jurisdictions, joinder
may be allowed in the RTC provided one of the causes of
action falls within its jurisdiction and venue lies therein.
4.
when the claims in all causes of action are
principally for recovery of money, the aggregate amount
shall be the test of jurisdiction.

EFFECT OF MISJOINDER

Upon motion of a party or on the initiative of the court, a


misjoined cause of action may be severed and proceeded
with separately.26

RULE 3 PARTIES TO CIVIL


ACTIONS

WHO MAY BE PARTIES TO A CIVIL


ACTION

Only (1) natural or (2) juridical persons or (3) entities


authorized by law may be parties in a civil action.27
They are called:
PLAINTIFF he is one who has interest in the subject
of the action and obtaining the relied demanded. He may be
the claimant in the original complaint, the counter-claimant
in the counter claim, or cross-claimant in a cross-claim or
the third party plaintiff and
DEFENDANT he is one who has an interest in the
controversy adverse to the plaintiff. He may be the
original defending party, the defendant in a counter-claim,
or cross-defendant in a cross-claim.

19

Supra, Section 3, Rule 2


Supra, Section 4, Rule 2
21
Joseph v Bautista, 170 SCRA 540
22
Articles 1484,1486, NCC
23
Blossom & Co v Manila Gas Corporation, 55 Phil 226
20

24

Supra, Section 5, Rule 2


Supra, Section 6, Rule 3
26
Supra, Section 6, Rule 2
27
Supra,,Section 1, Rule 3
25

For ready reference:


COUNTER-CLAIM is any claim which a defending party
may have against an opposing party.28
A CROSS-CLAIM is a claim by one party against a coparty arising out of the transaction or occurrence that is the
subject matter either of the original action or of a counterclaim therein.29
A THIRD PARTY CLAIM is a claim that a defending
party may, with leave of court, file against a person not party
to an action for contribution, indemnity, subrogation or any
other relief, in respect to his opponents claim.30
1.
The state or any of its political subdivisions,
while considered as juridical entities, they can sue but as a
general rule, they cannot be sued without its consent.
2.
A foreign corporation cannot be a plaintiff in suit
when it is transacting business in the Philippines without a
license.
3.
Entities authorized by law are recognized labor
organizations and entities without legal personality referring
to 2 or more persons not organized as an entity with
juridical personality enter into a transaction, they may be
sued under the name by which they are generally or
commonly known but in their answer to the complaint, their
names and addresses must be revealed.31
4.
A sole proprietorship may not be a party as it is
neither a natural, juridical or entity allowed or authorized by
law. If one sues as such, the action may be dismissed on the
ground of lack of capacity to sue. It does not possess a
juridical personality separate and distinct from the
personality of the owner of the enterprise.32It cannot sue or
file or defend an action in court.33

PARTIES IN INTEREST

A real party in interest in the party who stands to be


benefited or injured by the judgment or party entitled to
the avails of the suit. UNLESS OTHERWISE AUTHORIZED
BY LAW OR THE RULES all actions must be prosecuted
or defended in the name of the real party in interest.34
1.
A real party in interest-plaintiff is one who has
a legal right, while a real party in interest-defendant is one
who has a correlative obligation, whose act or omission
violates the legal rights of the former.35
2.
WHEN A SUIT IS NOT BROUGHT IN THE
NAME OF THE REAL PARTY IN INTEREST, it may be
28

Supra, Section 6, Rule 6


Supra, Section 8, Rule 6
30
Supra, Section 11, Rule 6
31
Supra, Section 15, Rule 3
32
Mangila v Court of Appeals, 387 SCRA 162, Yao Ka Sin
Trading v Court of Appeals, 209 SCRA 763
33
Juasing Hardware v Mendoza, 115 SCRA 783
34
Supra, Section 2, Rule 3
35
Gan Hock v. Court of Appeals, 197 SCRA 223
29

dismissed on the ground that the complaint states no


cause of action.36 Note that the dismissal is not due to lack of
or no legal capacity to sue nor lack of legal personality, as
the latter is not ground for dismissal for dismissal under the
1997 Rules of Civil Procedure.
2.1
It states NO CAUSE OF ACTION BECAUSE IT
IS NOT BEING PROSECUTED IN THE NAME OF THE
REAL PARTY IN INTEREST.
2.2
LACK OF LEGAL CAPACITY TO SUE means
that the plaintiff is not in exercise of his civil rights, does not
have the necessary qualification to appear or does not have
the character or representation he claims. Example: Trustee
or Minor, AS DISTINGUISHED FROM LACK OF LEGAL
PERSONALITY means that the plaintiff is not the real party
in interest. Dismissal is based on the fact that the complaint
states no cause of action
3.
Legal standing means a personal and substantial
interest in the case such that the party has sustained or will
sustain direct injury as a result of the act being challenged.
The term interest is material interest, an interest in issue,
and to be affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental
interest. Moreover, the interest must be personal and not
one based on a desire to vindicate the constitutional right of
some third or unrelated party.

CLASSIFICATION OF REAL PARTIES IN


INTEREST

1.
INDISPENSABLE PARTY is a party without
whom no final determination can be had of an action.37
They are those with such an interest in the controversy that
a final decree would necessarily affect their rights, so that
the courts cannot proceed without their presence. Example:
owners of property over which reconveyance is asserted are
indispensable parties without whom no relief is available
and without whom the court can render no valid judgment.38
1.1
Without the presence of indispensable parties to
the suit, the judgment of the court cannot attain real
finality.39
2.
NECESSARY PARTY is a party who is not
indispensable but who ought to be joined as a party 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.40 A necessary partys 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. Example: If the
plaintiff only sues a one of his joint debtors, the joint debtor
who is not sued is merely a necessary party. As a
consequence, the plaintiff only recovers the share of the debt
due from the joint debtor defendant.
2.2
A necessary party is to be impleaded as a party
for complete determination of an action, while an

36

Tankiko v Cesar, 302 SCRA 559


Supra, Section 7, Rule 3
38
Valenzuela v Court of Appeals, 363 SCRA 779
39
Domingo v Scheer, 421 SCRA 468
40
Supra, Section 8, Rule 3
37

indispensable party is impleaded for a final determination of


an action.

interest

PERSONS WHO CAN SUE IN BEHALF OF A


REAL PARTY IN INTEREST

litigation. His status as such exists only in that particular


litigation in which the appointment occurs.
3.2
Note that the appointment of a guardian ad litem
may occur in the following:
a) for minor heirs when substituting for a deceased
party50
b) incompetency or incapacity of a party51,
c) service of summons on a minor or incompetent52,
and
d) when the best interest of the child require it.53

The following may sue in behalf of a real party in

1.
REPRESENTATIVES- actions are allowed to be
prosecuted / defended by a representative or by one acting
in a fiduciary capacity BUT the BENEFICIARY SHALL BE
INCLUDED IN THE TITLE and shall be deemed to be the
REAL PARTY IN INTEREST.41
1.1

Examples of representatives are:


(1) trustee of an express trust
(2) a guardian, executor or administrator, or
(3) a party authorized by law or the Rules.

1.2
An agent acting in his own name and for the
benefit of an unknown principal may sue or be sued without
joining the principal except when the contract involves
things belonging to the principal. This refers to an AGENCY
WITH AN UNDISCLOSED PRINCIPAL.42
2.
HUSBAND AND WIFE- as a general rule shall
sue or be sued jointly, except as provided by law.43 Non
joinder of partys husband is not fatal. It is a mere formal
defect.44

JOINDER OF PARTIES

Joinder of Parties refers to the act of uniting several


parties in a single suit either as plaintiffs or defendants.
1.

The rule on joinder of parties states that:


- All persons in whom or against whom any right to
relief in respect to or arising out of the same transaction is
alleged to exist, whether jointly, severally or in the
alternative, may except as otherwise provided in these rules,
join as plaintiffs or be joined as defendants in one
complaint, where any question of law or fact common to all
such plaintiffs or to all such defendants may arise in the
action.54

2.1
They are required to sue and be sued jointly as they
are joint administrators of the Absolute Community or the
Conjugal Partnership.45

2.
Joinder of Parties, as a rule, is permissive
when there is a question of law or fact common to all the
plaintiffs or defendants. This means that the right to relief
or to resist the action arises out of the same transaction or
event or series of transactions or events.

2.2
The exceptions provided by law are when the
property relations of husband and wife are governed by the
rules on separation of property46 or one is disposing of
exclusive property.47

Example: action by passengers of a common carrier for


injuries sustained in an accident, there is no community of
interest, the extent of the interest is limited to the extent of
damages being claimed by each.

2.3
NOTE that the legal provision against the
disposition of conjugal property by one spouse without the
consent of the other has been established for the benefit, not
of third persons, but only for the spouse for whom the law
desires to save the conjugal partnership from damages that
might be caused. No other party can avail of the remedy
other than the aggrieved spouse.48

3.
It becomes compulsory when the parties to be
joined are indispensable parties.55

3.
MINORS OR INCOMPETENTS - may sue or be
sued with the assistance of father, mother, guardian or, if he
has none, a guardian ad litem.49
3.1
A guardian ad litem is a special guardian
appointed by the court in which a particular litigation is
pending to represent or assist a minor or an incompetent
person involved in or has interest in the property subject of
41

Supra, Section 3, Rule 3


Article 1883, NCC
43
Supra, Section 4, Rule 3
44
Miranda v Besa, 435 SCRA 532
45
Articles 96 and 124, Family Code
46
Article 145, Family Code
47
Article 111, Family Code
48
Villaranda v Villaranda, 423 SCRA 571
49
Supra, Section 5, Rule 3

4.
The exception to compulsory joinder of
parties is when the subject of the action is proper for a class
suit. The subject matter of the controversy is proper for a
class suit when it is one of common or general interest to
many persons so numerous that it is impractical to join all
as parties.56 All the parties who are interested in the action
as plaintiffs or defendants are all indispensable parties but
not all need to be joined.
4.1

The requisites of a class suit are:

1.
The subject matter of the controversy is one of
common or general interest to many persons. There must be
an INDIVISIBLE RIGHT AFFECTING MANY

42

50

Supra, Section 16, Rule 3


Supra, Section 18, Rule 3
52
Supra, Section 10, Rule 14
53
Article 222, Family Code
54
Supra, Section 6, Rule 3
55
Supra, Section 7, Rule 3
56
Supra, Section 12, Rule 3
51

INDIVIDUALS WHOSE PARTICULAR INTEREST IS


OF INDETERMINATE EXTENT AND IS INCAPABLE
OF SEPARATION. This requires that the benefit to one is
a benefit to all.
Examples: stockholder derivative suits and taxpayer suits.
1.1
Improper for a class suit is when a claimant is
interested only in collecting his claims and has no concern in
protecting the interests of the others.57
2.
The parties affected are so numerous that it is
impracticable to join all as parties
3.
The parties bringing or defending the class suit are
found by the court to be sufficiently numerous and
representative as to fully protect the interest of all.
To comply with the 2nd and 3rd requisite, the Complaint most
allege:
(1) existence of a subject matter which is of
common or general interest to many persons, and
(2) existence of a class and the number of persons
belonging to that class
4.2
It can be brought by the plaintiffs as a class or may
be filed against the defendants as a class

7.
MISJOINDER OR NON JOINDER NOT A
GROUND FOR DISMISSAL. Parties may be dropped or
added by order of the court on motion of any party or on its
own initiative at any stage of the action and on such terms
that are just. Any claim against a misjoined party may be
severed and proceeded against separately.61
NOTE HOWEVER that if the party to be joined is
indispensable and the plaintiff fails or refuses or such party
cannot be sued the complaint must be dismissed (NDC v.
CA 211 S 422)
8.
IF A PARTY TO BE JOINED AS A
PLAINTIFF DOES NOT CONSENT OR CANNOT BE
OBTAINED he may be made a defendant and the reason
therefor shall be stated in the complaint.62
DISTINCTIONS BETWEEN
Indispensable party
if not joined action cannot
proceed judgment is not
valid
-non joinder dismissed

4.3
Any party in interest shall have the right to
intervene to protect his individual interest.
4.4
The general rule, is that the party bringing the
suit in his own name and that of others similarly situated
has the right to control the suit, BUT, it shall not be
dismissed or compromised without the approval of the
court.58
5.
If there is a failure to join an indispensable party,
the court must order the plaintiff to amend his complaint for
the purpose of impleading the indispensable party. If the
plaintiff fails, refuses or the party cannot be sued because he
is a non-resident defendant in a personal action, the
complaint must be dismissed.59
6.
If there is a failure to join a necessary party, the
pleader in the pleading in which a claim is asserted without
joining a necessary party shall

If pleader fails to comply with order for inclusion without


justifiable cause, it shall be deemed a waiver of the claim
against the party, BUT the non-inclusion does not prevent
the court from proceeding in the action, and the judgment
therein shall be without prejudice to rights of such necessary
party.60

WHO WILL PLAINTIFF SUE IF HE IS


UNCERTAIN

IF THE IDENTITY/NAME OF THE


DEFENDANT IS UNKNOWN

He may be sued as the unknown owner, heir, devisee or by


such other designation as the case may require WHEN
THE IDENTITY OR NAME IS DISCOVERED the pleading
must be amended accordingly.64 EXAMPLE: Action to
recover real property from several unknown heirs of a
common ancestor.

57

61

58

62

Cadalin v POEA Administrator, 238 SCRA 721


Supra, Section 2, Rule 17
59
NDC v Court of Appeals, 211 SCRA 422
60
Supra, Section 9, Rule 3

non joinder waiver of


claim

If he (plaintiff) uncertain against who of several persons


he is entitled to relief HE MAY JOIN ANY OR ALL OF
THEM AS DEFENDANTS in the ALTERNATIVE
although a right to relief against one may be inconsistent
with a right of relief against the other.63
EXAMPLE: An action where the owner of goods is not sure
whether they were lost in transit or while it was on deposit
in the warehouse of the arrastre operator He may sue the
shipper or the operator of the warehouse in the
ALTERNATIVE although the right against the SHIPPER is
based on ADMIRALITY, while that against the OPERATOR
is based on CONTRACT. Action for damages arising from
loss of goods due to a collision.

(1) set forth the name of the necessary party, if


known and
(2) state the reason for omission.
If the court finds the reason for the omission is not
meritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person is obtained.

Necessary party
not joinedaction proceeds
judgment is voted but does
not resolve the controversy.

Supra, Section 11, Rule 3


Supra, Section 10, Rule 3
63
Supra, Section 13, Rule 3
64
Supra, Section 14, Rule 3
9


EFFECT OF DEATH OF A PARTY (Sec 16)
When a party dies and his claim is not extinguished it shall
be the duty of counsel to inform the court within 30 days
after such death of the:

1.
RULES TO BE OBSERVED IN CASE OF
DEATH OF OBLIGOR are:
a) If he dies before the action is filed, a money claim
must be filed in the testate or intestate proceedings
b) if he dies during the pendency of an action, the
action continues until entry of judgment, and the
judgment claim is then filed with the testate or
intestate proceedings. It must be noted that a
money claim judgment need not be proven because
it is conclusive.

(1) FACT OF DEATH


(2) NAME AND ADDRESS OF LEGAL REP/REPS
IF NOT, Counsel may be subject to disciplinary action.
ONCE NOTICE IS GIVEN The COURT SHALL ORDER
THE LEGAL REP/S TO APPEAR AND BE SUBSTITUTED
WITHIN 30 DAYS FROM NOTICE.
Note: Heirs may be allowed to be substituted for the
deceased without requiring the appointment of an executor
or administrator and the court can appoint a guardian ad
litem for minor heirs.

IF LEGAL REP/S DO NOT APPEAR OR


NOTICE IS NOT GIVEN

NOTE FURTHER, that if property has been levied upon


before death. It can disposed of in the manner provided by
the rules on execution of judgments because it has already
been segregated from estate. If there is a deficiency, a
money claim can be filed subsequently.
2.
IF IT DOES NOT ARISE FROM CONTRACT,
RE: CLAIMS FOR RECOVERY, ENFORCEMENT OF A
LIEN OR DAMAGES DUE TO TORT, the rules are:
a) if he dies before the action is filed, it may be filed
against the executor or administrator
b) if already filed , it continues to final judgment and
may be executed on as against the executor or
administrator.66

The court can order the opposing party, within a specified


time to procure the appointment of an executor or
administrator to appear for and in behalf of the deceased
Expenses if paid by opposing party can be recovered as
costs

IF DEATH/SEPARATION OF A PUBLIC
OFFICER (Sec 17)

If sued in his public capacity and he dies, resigns or


otherwise ceases to hold office
The action may be MAINTAINED AND CONTINUED by or
against his successor, if within 30 days after successor
assumes the office or such time as granted by the court it
is SATISFECTORILY SHOWN by a party that there is a
substantial need for continuing and maintaining it and that
the successor ADOPTS or CONTINUES OR THREATENS to
adopt or continue the action of his predecessor.
BEFORE SUBSTITUTION IF NO EXPRESS ASSENT, the
public officer shall be given reasonable notice of the
application and be accorded an opportunity to be heard.

EFFECT OF DEATH OF DEFENDANT ON A


CONTRACTUAL MONEY CLAIM

If the action is for the recovery of money that arises from a


CONTRACT, express or implied, and the defendant dies
BEFORE ENTRY OF A FINAL JUDGMENT, the RULE is
- it will not be dismissed but shall be allowed to
continue until entry of judgment, a favorable judgment
obtained shall be enforced in the manner provided by the
rules for prosecuting claims against the ESTATE OF A
DECEASED PERSON.65

3.
In a case for ejectment where the defendant died
before the case could be decided and without being able to
testify on his counterclaim for damages. The trial court
dismissed the ejectment suit and ordered the plaintiff to pay
the wife of the defendant moral damages and attorneys fees.
The plaintiff contends on appeal that the counterclaim
should have been dismissed pursuant to Rule 3, Section 21
(old rule).
HELD: The argument is misplaced, defendant was the
plaintiff in his counterclaim, the rule is not applicable as it
pertains to a defendant who dies before final judgment. In
this case, it is the plaintiff who died and all that is required is
a timely motion for substitution. No recovery though can be
allowed as no evidence was adduced.67
4.
If a claim involves a conjugal debt that was not
brought and one of the spouses die before filing, the claim
must be brought in the testate or intestate proceedings of
the deceased spouse.68 ( Alipio v. CA, GR. 134100, 9-292000)
5.
IF IT IS THE PLAINTIFF WHO DIES:
(a) if action is purely personal to him, the action is abated
(b) if action is not purely personal, it continues but counsel
must give notice of death.

EFFECT ON INCOMPETENCY/INCAPACITY
ON AN ACTION
1.
The court, upon motion with notice, may allow the
action to be continued by or against the incompetent or
incapacitated person assisted by his guardian or guardian ad
litem.69
66

Supra, Section 7, Rule 39


UST v Court of Appeals, GR No. 124250, October 18,
2004
68
Alipio v Court of Appeals, GR No. 134100, September
29, 2000
69
Supra, Section 3 and 18, Rule 3
67

65

Supra, Section 20, Rule 3

10

EFFECT OF A TRANSFER OF INTEREST


PENDING LITIGATION

1.
The action may be continued by or against the
original party, unless the court upon motion directs the
person to whom interest is transferred to be substituted in
the action or joined with the original party.70
2.
The rule refers to a transfer pendente lite. The
transferee pendente lite shall stand exactly in the shoes of
the transferor. Consequently, any judgment will be binding
upon him.
3.
A transferee pendent elite does not have to be
included or impleaded by name in order to be bound by the
judgment because the action or suit may be continued for or
against the original party or the transferor and still binding
on the transferee.71
4.
In a case on appeal where the transferee pendente
lite did not appeal, he nevertheless was benefited by the
appeal of the transferor pendent elite.72

4.
The allowance to litigate as an indigent or pauper
litigant can be contested at any time before judgment is
rendered by any adverse party. If found to be meritorious,
the proper fees are assessed and are to be collected. IF NOT
PAID, execution shall issue on the payment thereof without
prejudice to other sanctions.
5.
On appeal, a motion to litigate as an indigent or
pauper litigant is allowed.

WHEN SOLICITOR GENERAL IS


REQUIRED TO APPEAR

In any action involving the validity of any treaty, law,


ordinance, executive order, presidential decree, rule or
regulation, the court, in its discretion, may require the
appearance of the SOLGEN, who may be heard in person or
through a representative duly designated by him.75

RULE 4 VENUE OF ACTIONS

INDIGENT/PAUPER LITIGANT

1.
An indigent or pauper litigant Is one who litigates
on a claim that he has no money, or property sufficient and
available for food, shelter and basic necessities for himself
and his family.73
2.
An indigent or pauper litigant must file an ex-parte
application for authority to litigate as an indigent that is too
be resolved by the court after hearing. Attached to the
motion is an affidavit attesting to the fact that he does not
earn a gross income of PHP 4000.00 in Metro-Manila, or
PHP 3,000.00 elesewhere and has no real property with a
fair market value of PHP 50,000.00. Said affidavit must be
supported by another affidavit of a disinterested person.
Note that recently, an indigent litigant has been defined as
one (a) whose gross income and that of their immediate
family does not exceed an amount double the monthly
minimum wage of an employee and (b) who does not own
real property with a fair market value as stated in the
current tax declaration of more than PHP 300,000.00. If
there is any falsity
in the affidavit or that of the
disinterested person, it shall constitute sufficient ground to
dismiss the action or strike out the pleading, without
prejudice to whatever criminal liability is incurred.74
3.
The effect of being allowed to litigate as an
indigent or pauper litigant are:
(1) exemption from the payment of docket fees and
other lawful fees
(2) exemption from TSN fees which the Court may
order to be furnished BUT, the amounts due shall
be a LIEN on a favorable judgment unless the
Court orders otherwise.

70

Supra, Section 19, Rule 3


State Invetsment House, Inc. v Court of Appeals, 318
SCRA 47
72
Jocson v Court of Appeals, GR 88297, March 22, 1990
73
Supra, Section 21
74
Section 19, Rule 141, Rules of Court
71

1.
Venue is the place where the action is to be
commenced and tried. It has also been defined as the proper
location for the trial of a case.
2.

Distinguishing it from jurisdiction:


(1) venue is the place where action is commenced
and tried, jurisdiction is the authority of a court
to hear and decide the action
(2) venue may be waived, jurisdiction over the
subject matter cannot be waived, but that over the
person can be waived
(3) venue may be the subject of a written agreement,
jurisdiction cannot be subject of a written
agreement
(4) a court cannot motu-propio dismiss on improper
venue, while when there is no jurisdiction, a court
can motu-propio dismiss the action.

3.

The following are the rules on venue:

3.1
IF IT IS A REAL ACTION or one that affects title
to or possession of real property, or interest therein, it shall
be commenced and tried in the proper court which has
jurisdiction over the area wherein the real property involved
or a portion thereof is situated. Forcible Entry and Detainer
actions are to be commenced and tried in the Municipal
Trial Court which has jurisdiction over the area wherein the
real property involved, or any portion thereof, is situated.76
2.
IF IT IS A PERSONAL ACTION or one that is
brought for the recovery of personal property, for the
enforcement of a contract or recovery of damages for its
breach of for the recovery of damages due to injury to person
or property or such all other actions shall be commenced or
tried where the plaintiff or ANY OF THE PRINCIPAL
PLAINTIFFS reside or any of the defendants reside, or if a

75
76

Supra, Section 22, Rule 3


Supra, Section 1, Rule 4
11

NON-RESIDENT DEFENDANT, where he may be


FOUND at the election of the plaintiff77
2.1
RESIDE means the place of abode, whether
permanent or temporary as distinguished from domicile
fixed permanent residence, where if one is absent he intends
to return.
2.2
Is the complaint for cancellation of a real estate
mortgage with damages, a real or personal action?
- It is a real action, the controlling factor in
determining venue of such a case is the primary objective for
which it is filed. An action for cancellation of a real estate
mortgage is necessarily an action affecting title to real
properties since the primary objective is to recover the
properties that the bank had foreclosed on.78
2.3
In personal actions, it is the residence of the
proprietor, not the business address of the sole
proprietorship that is considered to determine venue as a
sole proprietorship has no legal personality.79
2.4
R engaged the services of L as geodetic surveyor to
subdivide two parcels of land located in Batangas. As
payment for Ls services, R agreed to given him one lot. After
the survey, R delivered to L possession of one lot as payment
for his services. However, R failed to deliver to L the tile of
the lot. L, who resides in Quezon City, filed with the RTC of
Quezon City an action against R for specific performance to
compel R to deliver to him the title to the lot. R moved to
dismiss on the ground of improper venue, contending that
since his is a real action, the complaint must be filed in the
RTC of Batangas where the lot is situated. Is R correct? No,
R is not correct. This action for specific performance is a
personal action. The venue therefore, was properly laid in
Quezon City where the plaintiff resides. It is not a real action
because plaintiff L is not seeking the recovery of the lot as he
is already in possession thereof. He is merely asking the
delivery of the title to him, which is a personal action.80
3.
IF DEFENDANT IS A NON-RESIDENT or one
who does not reside and is not found in the Philippines, and
the action affects the personal status of the plaintiff , or any
property of said defendant located in the Philippines, the
action may be commenced and tried in the court of the place
where the plaintiff resides, or where the property or any
portion thereof is situated or found.81

3.2
A non-resident alien who cannot be found can sue
and be sued as by filing his complaint, he submits to the
jurisdiction of the Court, even if he has never been able to
enter the Philippines.82 (Dilweg vs. Philipps, 12 S 243)

THE RULES ON VENUE ARE NOT


APPLICABLE
The rules on venue will not apply if:
(1) in cases where a specific rule or law provides
otherwise
(2) Where the parties have validly agreed in writing
BEFORE FILING OF THE ACTION ON
EXCLUSIVE VENUE83
1.

EXAMPLES:

(1) Quo Warranto proceedings may be instituted in the


Supreme Court, Court of Appeals or the Regional Trial Court
exercising territorial jurisdiction over the area where the
respondent/s reside. If the Solicitor General commences the
action, he may do so in the Supreme Court, Court of Appeals
or the Regional Trial Court of Manila.84 The criminal or civil
action for damages due to libel can only be instituted either
in Regional Trial Court of the place where he holds office or
in the place where the alleged libelous article was printed
and first published; and if the offended parties are private
individuals, the venue shall be in the Regional Trial Court of
the place where the libelous article was printed and first
published or where any of the offended parties actually
resides at the time of the commission of the offense85 or 2.
Art 360, RPC. Libel Civil and Criminal action to
be distributed in the RTC where public official holds office
or where libelous article was first printed or published
(3) Intracorporate Controversies are to be filed in the
Regional Trial Court where principal office corporation is
located.86
2.
Any agreement as to venue must be in writing and
for exclusivity, the intent must be clear, otherwise, it will be
interpreted to allow for an additional venue.
2.1
The freedom of the parties to stipulate on the venue
is however subject to the usual rules on contract
interpretation. Where the provision appears to be one-sided
as to amount to a contract of adhesion, the consent of the
parties thereto may well be vitiated and the venue
stipulation will not be given effect.87
2.2
Venue as stipulated in the promissory note shall
govern notwithstanding the absence of a stipulation as to
venue in an accompanying surety agreement as the latter
can only be enforced in conjunction with the former.88

3.1
The provision refers to a Quasi in Rem action in
which an individual is named as a defendant, and the
purpose of the action is to subject his interest therein to an
obligation or lien burdening the property.

82
77

Supra, Section 2, Rule 4


78
Go v UCPB, GR No. 156187, November 11, 2004
79
Mangila v Court of Appeals, 387 SCRA 162
80
Dimo Realty & Development, Inc. et al. v.
Dimaculangan, G.R. NO. 130991, March 11, 2004
81

Supra, Section 3, Rule 4

Dilweg v Philipps, 12 SCRA 243


Supra, Section 4, Rule 4
84
Supra, Section 7, Rule 66
85
Article 360, Revised Penal Code
86
RA 8799, and A.M. 01-02-04-CS, March 13, 2001
87
Sweet Lines v Teves, 83 SCRA 361
88
Philippine Bank of Communications v Lim, 455 SCRA
714
83

12

HOW VENUE IS QUESTIONED

Venue may be questioned in:


(1) in a motion to dismiss89, or
(2) in an answer by way of an affirmative defense90. If
NOT SO MADE, it is deemed waived.

2.1
The following are the kinds of defenses97 that may
be interposed in an answer:
2.1.1
NEGATIVE DEFENSE which is a specific denial
of a material fact or facts alleged in the pleading of a
claimant essential to his cause/s of action. A specific denial
is made98 by:
(a) Specifically denying the material averment in the
pleading of the adverse party and setting forth the
substance of the matter upon which he relies for
such denial
(b) Deny only a part of the averment by specifying that
so much of it is true and deny the remainder
(c) Allegation of lack of knowledge or information
sufficient to form a belief as to the truth of the
material averment in the pleading of the adverse
party.

RULE 5-UNIFORM PROCEDURE IN


TRIAL COURTS
The procedure in Municipal Trial Court shall be the same as
in the Regional Trial Court, except when (1) a provision
applies only, expressly or impliedly, to a particular court, or
(2) In civil cases covered by the Rules on Summary
Procedure
1.
An example of a provision that applies only to a
Municipal Trial Court is that which refers to an appeal
taken from an order of the lower court dismissing the case
without trial on the merits.91

PROCEDURE IN REGIONAL
TRIAL COURTS
RULE 6- KINDS OF PLEADINGS
PLEADING DEFINED is a written statement of the
respective claims and defenses of the parties submitted to
the court for appropriate judgment.92
1.

The pleadings that are allowed are:

(1) Claims of a party are asserted in the complaint,


counterclaim, cross-claim, 3rd party complaint (4th..), or
complaint in intervention
(2) Defenses of a party are alleged in the answer to the
pleading asserting a claim against him
(3) Reply to the answer93
2.

Supra, Section 1 (c) ,Rule 16


Supra, Section 6, Rule 16
91
Supra, Section 8, Rule 40
92
Supra, Section 1, Rule 6
93
Supra, Section 2, Rule 6
94
Supra, Section 3, Rule 6
95
Supra, Section 4, Rule 6
96
Naga Development Corporation v Court of Appeals, 41
SCRA 105
90

Any of the grounds for a motion to dismiss may be pleaded


as an affirmative defense. He may then move for a
preliminary hearing as if a timely motion to dismiss has
been filed.99
NOTE that the rule that a defending party who sets up an
affirmative defense HYPHOTHETICALLY ADMITS the
allegations does not apply if the defense set up is any of the
grounds for extinguishment of the obligation. The EFFECT
is that the defending party is deemed to have admitted the
validity of the obligation, and if the motion to dismiss is
denied, what is left to be proven is the fact of payment or
non-payment.
3.
COUNTERCLAIM, which is any claim which a
defending party may have against an opposing party.100
3.1

The specific KINDS OF PLEADINGS are:

(a) COMPLAINT, which is the pleading alleging the


plaintiffs cause of action or causes of action. The
names/residences of the plaintiffs and defendants must be
stated in the complaint94
(b) ANSWER, which is a pleading in which a defending
party sets forth his defenses95. Its essential purpose is to
secure joinder of the issues and not to lay down evidentiary
matter.96
89

2.1.2
AFFIRMATIVE DEFENSE which is an
allegation of new matter, which although hypothetically
admitting the material allegations in the pleading would
nevertheless bar or prevent recovery. They include fraud,
statute of limitations, release, payment, illegality, statute of
frauds, estoppel, former recovery, discharge in bankruptcy,
or any other matter by way of confession and avoidance.

KINDS OF COUNTERCLAIMS
COMPULSORY

PERMISSIVE

(1) Arises out of or is


connected
w/ the transaction or
occurrence
constituting the subject
matter of
the opposing partys claim

Does not arise out of or is


not connected
w/the transaction or
occurrence constituting the
subject matter of the
opposing partys claim

(2) barred if not set up in


the
answer

not barred even if not set


up in the answer

97

Supra, Section 5, Rule 6


Supra, Section 10, Rule 8
99
Supra, Section 6, Rule 16
100
Supra, Section 6, Rule 6
98

13

(3) plaintiff need not


answer

(c) It must be within the jurisdiction of the court both


as to amount and the nature thereof, except that in
an original action before the RTC, counterclaim is
considered compulsory regardless of amount

plaintiff must answer once


docket fees are paid

(4) if not answered no


default

if not answered default


lies

(5) does not require a


certification as to nonforum shopping

being an initiatory pleading


it requires a certification
as to non-forum shopping

3.2
The REQUISITES
COUNTER-CLAIM are:

OF

COMPULSORY

(a) It arises out of or is necessarily connected w/the


transaction or occurrence that in the subject matter
of the partys claim
(b) It does not require for adjudication the presence of
3rd parties over whom the court cannot acquire
transaction
(c) It must be cognizable by the regular courts of
justice
(d) It must be within the jurisdiction of the court both
as to amount and the nature thereof, except that in
an original action before the RTC, counterclaim is
considered compulsory regardless of amount
(e) It must already be existing at the time defending
party files his answer (Rule 6, Sec. 7, Rule 11, Sec.
8)
See Reyes De leon v Del Rosario, 435 SCRA 232, test to
determine whether counterclaim is compulsory or not.
3.2.1
A compulsory counterclaim that is not yet in
existence at the time of the filing of an answer may be
presented or set-up by a supplemental pleading before
judgment.101
3.2.2
A compulsory counterclaim may implead
persons not parties to the original complaint as their
presence is required for granting complete relief in the
determination of a counter-claim or cross claim, the court
shall order them brought in as defendants, if jurisdiction
over them can be obtained.102 Summons must thus be served
upon them as they must answer the counterclaim as they
cannot rely on the rule that the defendant in the
counterclaim is deemed to have adopted the allegations of
the complaint in his answer.103
3.3
The REQUISITES
COUNTERCLAIM are:

OF

PERMISSIVE

(a) It does not require for adjudication the presence of


3rd parties over whom the court cannot acquire
jurisdiction
(b) It must be cognizable by the regular courts of
justice

4.
A CROSS-CLAIM is a claim by one party against a
co-party arising out of a transaction/occurrence that is the
subject matter either of the original action or the counterclaim.
It may include a claim that a party against whom it
is asserted is or may be liable to the cross claimant for all or
part of a claim asserted in the action against the crossclaimant. 104
NOTE that counterclaims may be asserted against an
original counter-claimant and that cross-claims may also be
filed against an original cross-claimant.105
5.
A REPLY is a pleading, the office or function of
which is to deny or allege facts in denial or avoidance of new
matters alleged by way of defense in the answer and thereby
join or make an issue as to such matters.
5.1
If a reply is not filed, all new matters are
deemed controverted. If plaintiff wishes to interpose any
claims arising out of the new matters so alleged, such claims
shall be set forth in an amended/supplemental complaint.
5.2
If the defense is based on an actionable document,
it must be replied to, otherwise it is admitted.
6.
A 3RD PARTY COMPLAINT is a claim that a
defending party may, WITH LEAVE OF COURT, file against
a person, NOT A PARTY, called 3RD party defendant. FOR
CONTRIBUTION INDEMNITY, SUBROGATION, OR ANY
OTHER RELIEF in respect of his opponents claim.106
6.1

EXAMPLES:

CONTRIBUTION - A sues X for collection of money based


on a promissory note signed jointly and severally with Y. X
may file a complaint against Y for contribution
INDEMNITY S, as surety, is sued for recovery of the
obligation of M. S may file a complaint against M for
whatever amount he may be adjudged to pay as surety
SUBROGATION X, as lessor, sues Y, as lessee for
repairs. Y may file a complaint against his sub-lessee who
filed to comply with the obligation to repair
OTHER RELIEF X bought land from Y. Later X is sued
by A for recovery of the land. X may file a complaint against
Y for his warranty against eviction.
6.2
An ANSWER TO 3RD PARTY COMPLAINT
may include
(a) DEFENSES COUNTERCLAIMS OR CROSSCLAIMS including such defenses that the 3RD
PARTY PLAINTIFF may have against the original
plaintiffs claim, and

101

Supra, Section 9, Rule 11, Intramuros Administration v


Contacto, 402 SCRA 581
102
Supra, Section 12, Rule 6
103
Lafarge Cement Philippines, Inc. v Luzon Continental
Land Corporation, 443 SCRA 522

104

Supra, Section 8, Rule 6


Supra, Section 9, Rule 6
106
Supra, Section 11, Rule 6
105

14

(b) IN PR0PER CASES, he may assert a counterclaim against the ORIGINAL PLAINTIFF in respect
to his claim against the 3rd party plaintiff.107
EXAMPLE: a REINSURER (3rd party defendant) may
set up in his answer the defense alleged by defendant insurer
that loss is caused by plaintiff insured. However 3rd party
defendant cannot file a counterclaim against the original
plaintiff as there is no privity of contract.

by : FIRST CAUSE OF ACTION etc. WHEN: 2 or more


paragraphs are addressed to one or several causes of action
in the complaint, they shall be prefaced by: ANSWER TO
THE FIRST CAUSE OF ACTION and so on. If it addresses
several causes of action, the paragraphs shall be prefaced
accordingly.
2.3
Relief should be specified but it may add a general
prayer for such further or other relief as may be deemed just
and equitable.
2.4

WHEN NEW PARTIES CAN BE BROUGHT

If the presence of others besides the parties is required for


the granting of full relief in the determination of a counterclaim or cross- claim the court shall order them to be
brought in as defendants, if jurisdiction over them can be
obtained108.

RULE 7 PARTS OF A PLEADING


The PARTS OF A PLEADING of a pleading are
a) CAPTION,
b) BODY,
c) SIGNATURE,
d) ADDRESS,
e) VERIFICATION, AND CERTIFICATION
AGAINST FORUM SHOPPING.
1.

CAPTION it sets forth the


(a) NAME OF THE COURT
(b) THE TITLE OF THE ACTION - this includes an
indication of the NAME of the PARTIES, who are
REQUIRED to be NAMED in the ORIGINAL
COMPLAINT OR PETITION. In subsequent
pleadings, the name of the first party on each side
is sufficient with an appropriate indication when
there are other parties. NOTE: In an appeal,
Sections 5 and 6, Rule 41 requires all names to be
indicated in the NOTICE OF APPEAL and
RECORD ON APPEAL
(c) DOCKET NUMBER, if one has already been
assigned.109

2.
BODY - sets forth its designation, the allegations
or a partys claims / defenses, the relief prayed for, and the
date of the pleading
2.1
The allegations in the body shall be divided unto
paragraphs so NUMBERED to be readily IDENTIFIED.
Each shall contain STATEMENT OF A SINGLE SET OF
CIRCUMSTANCES so far as it can be done with
convenience. A paragraph may be referred to by its number
in all succeeding pleadings.
2.2
Headings must be used when 2 or more causes of
action are joined, the statement of the first shall be prefaced

Date every pleading is required to be dated.

3.
SIGNATURE AND ADDRESS- every pleading
must be signed by the party OR counsel representing him,
stating in either case his ADDRESS which should not be a
post office box.
3.1
NOTE the word OR because a party may litigate /
defend PRO SE or for himself without aid or counsel. This
applies even if a party is already represented by counsel.
3.2
AN ADDRESS IS REQUIRED for service of
pleadings or judgments
3.3
SIGNIFICANCE
OF
COUNSELS
SIGNATURE it is a CERTIFICATE BY HIM THAT:
(a) He has read the pleading
(b) To the best of his information, knowledge and
belief there is good ground to support it
(c) It is not interposed for delay
3.4
IF PLEADING IS UNSIGNED It produces NO
LEGAL EFFECT. However, the court in its discretion can
allow the deficiency to be remedied if: it SHALL APPEAR
THAT THE SAME IS DUE TO INADVERTENCE AND NOT
INTENDED FOR DELAY
3.5
COUNSEL SUBJECT TO DISCIPLINARY ACTION
IN RELATION TO the Rule when
(a)
(b)
(c)
(d)

He deliberately files an unsigned pleading


Signs a pleading in violation of the Rule
Alleges scandalous or indecent matter
Fails to promptly report to the court a change in his
address

4.
VERIFICATION is an affidavit that the affiant
has read the pleading and that the allegations therein are
TRUE and CORRECT of his PERSONAL KNOWLEDGE
AND/OR IS BASED ON AUTHENTIC RECORDS.
4.1
IF A PLEADING REQUIRED TO BE VERIFIED
CONTAINS
A
VERIFICATION
BASED
ON

INFORMATION AND BELIEF, OR UPON KNOWLEDGE


INFORMATION AND BELIEF, OR LACKS A PROPER
VERIFICATION, it shall be treated as an UNSIGNED
PLEADING.
4.2
A pleading need not be verified, except when
otherwise specifically required by LAW OR RULES110.

107

Supra, Section 13, Rule 6


Supra, Section 12, Rule 6
109
Supra, Section 1, Rule 7
108

110

Supra, Section 4, Rule 7


15

4.3
A VERIFICATION IS REQUIRED under rules
governing
(a) cases covered by the Rules on Summary Procedure
(b) Petition for relief from judgment / order111
(c) Petition for review112
(d)Appeal by certiorari113
(e) Petition for annulment of judgment 114
(f) Injunction115
(g) Receivership116
(h) Support117
(i) 69) Certiorari, Prohibition or Mandamus118
(j) Quo Warranto119
(k) Expropriation120
(l) Forcible Entry / Detainer121
(m) Indirect Contempt 122
4.4
An improper verification is cured by amending
the pleading with the CORRECT VERIFICATION
5.
CERTIFICATION
AGAINST
FORUM
SHOPPING is executed by the plaintiff or principal party
who shall certify under OATH in the COMPLAINT or
INITIATORY PLEADING ASSERTING A CLAIM OR
RELIEF OR IN A SWORN CERTIFICATION ANNEXED
THERETO AND SIMULTANEOUSLY FILE THEREWITH:
(1) That he has not therefore commenced any action or
filed any claim involving the same issues in any
COURT, TRIBUNAL OR QUASI-JUDICIAL
AGENCY, AND to the best of his knowledge, no
such other claim or action is pending therein
(2) If there is such other pending action or claim, a
complete statement of the present status thereof
(3) That if he should thereafter learn that the same or
similar action has been filed or is pending, he shall
report that fact within 5 days therefrom to the court
wherein his complaint / initiatory pleading has
been filed.123
5.1
The lack of a certification is not curable by
amendment, but such shall be cause for dismissal of the
complaint. The dismissal shall be without PREJUDICE
unless otherwise provided, upon motion and after
hearing.124
5.2
The NON-COMPLIANCE WITH ANY OF THE
UNDERTAKINGS OR SUBMISSION OF A FALSE

111

Supra, Section 3, Rule 38


112
Supra, Section 1, Rule 42
113
Supra, Section 1, Rule 45
114
Supra, Section 4, Rule 47
115
Supra, Section 1, Rule 58
116
Supra, Section 1, Rule 59
117
Supra, Section 1, Rule 61

CERTIFICATE shall constitute indirect contempt without


prejudice to corresponding administrative and criminal
actions. PROVIDED, that if the acts of the party or counsel
clearly constitute WILLFUL and DELIBERATE forum
shopping, it shall then be ground for SUMMARY
DISMISSAL WITH PREJUDICE, and shall constitute
DIRECT CONTEMPT as well as cause for administrative
sanctions.
5.3
Forum Shopping exists when as a result of an
adverse opinion in one forum, a party seeks a favorable
opinion, other than by appeal or certiorari, in another, or
when he institutes two or more actions or proceedings
grounded on the same cause, on the gamble that one or the
other court would make a favorable disposition. The most
important factor in determining the existence of forum
shopping is the vaxation caused the courts and partieslitigants by a party who asks different courts to rule on the
same or substantially the same reliefs.125
5.3.1
It also occurs when a party attempts to have his
action tried in a particular court or jurisdiction where he
feels he will receive the most favorable judgment.
5.3.2
It has been said to exist also where the elements of
litis pendentia are present or where a final judgment in one
case will amount to res judicata in another. Hence, the
following requisites concur:
(a) identity of parties, or at least such parties represent
the same interests in both actions
(b) identity of rights asserted and relief prayed for, the
relief being founded on the same facts, and
(c) identity of the two preceding particulars is such
that any judgment rendered in the other action
will, regardless, of which party is successful,
amount to res judicata in the action under
consideration. 126
5.4
The purpose of the certification against
forum shopping is to prohibit and penalize the evils of
forum shopping.127 Forum Shopping is a deplorable practice
because it results in unnecessarily clogging of the already
heavily burdened docket of the courts.128
5.5
The execution of the certification is required to be
accomplished by the petitioner himself as it is the petitioner
himself who has actual knowledge of whether or not he has
initiated similar actions or proceedings in different courts or
agencies.
5.5.1
If there are several plaintiffs, the general rule is
that all of them must sign BUT IT MUST BE NOTED that
there is jurisprudence to the effect that:
(1) the execution by one of the petitioners or plaintiffs
in a case constitutes substantial compliance where
all the petitioners, being relatives and co-owners of

118

Supra, Sections 1,2,3, Rule 65


Supra, Section 1, Rule 66
120
Supra, Section 1, Rule 67
121
Supra, Section 3, Rule 70
122
Supra, Section 3, Rule 71
123
Supra, Section 5, Rule 7
124
Castillo v Court of Appeals, 426 SCRA 369
119

125

Benguet Electric Cooperative, Inc. v Flores, 287 SCRA


449
126
TADI v Solilapsi, 394 SCRA 269
127
BA Savings Bank v Sia, 336 SCRA 484
128
Ruiz v Drilon, 209 SCRA 695
16

the properties in dispute, share a common interest


in the subject matter of the case.129
(2) the case is filed as a collective raising only one
cause of action or defense130
(3) the signing by 1 spouse substantially complies as
they have a common interest in the property 131 or is
signed by husband alone is substantial compliance
as subject of case is recovery of conjugal property132
(4) 2 of the parties did not sign as they were abroad. It
was considered reasonable cause to exempt them
from compliance with the requirement that they
personally execute the certificate133
5.5.2
If the plaintiff or petitioner is a juridical person, the
Board may pass a specific resolution allowing a
representative to sign.
5.5.3
Counsel has been allowed to sign the certification
in the following instances:
(a) Where the counsel is the Solicitor General has been
deemed to be substantial compliance134
(b) Certification by acting regional counsel of NPC was
accepted because it was his basic function to
prepare pleadings and to represent NPC
Mindanao as such he was in the best position to
know and certify if a similar action was pleading or
had been filed135
(c) Certification was signed by counsel. The procedural
lapse may be overlooked in the interest of
substantial justice.136
(d) Certification was executed by an in house counsel
is sufficient compliance with the Rules137
SEE: Ateneo de Naga vs. Bernal, GR 160455, May 9, 2005
The rule in Section 1, Rule 17 is that the plaintiff may
dismiss his complaint by filing a notice of dismissal at any
time before service of the answer or of a motion for
summary judgment. As a general rule, such dismissal is
without prejudice. Suppose P filed a complaint against D,
and before service of the answer or of motion for summary
judgment, P caused the dismissal of his complaint by filing a
notice of dismissal. Months later, P filed the same complaint
against D. In the certification on non-forum shopping
appended to the second complaint, P failed to mention
about the prior filing and dismissal of the first case. Is Ps
failure to mention about the prior filing and dismissal of the
first case fatal?

No. An omission in the certification on non-forum shopping


about any event or case which would not constitute res
judicata or litis pendentia is not fatal. In the problem
presented, the dismissal of the first case would not
constitute res judicata precisely because such dismissal is
without prejudice to the refilling of the case. (Roxas v. CA,
G.R. No. 139337, Aug. 15, 2001.)
To be included as 4th paragraph of the answer in Q&A No.
13; p. 62:
Also, a case pending before the Ombudsman cannot be
considered for purposes of determining forum shopping as
the power of the Ombudsman is only investigative in
character and its resolution cannot constitute a valid and
final judgment because its duty is to file the appropriate case
before the Sandiganbayan. (Sevilla v. Laggui, A.M. No. RTJ01-1612, Aug. 14, 2001.)

CAN THE CERTIFICATION BE FILED


LATER-

General Rule NO Note Uy v. Land Bank GR 136100 July


24, 2000-REINSTATEMENT OF THE CASE AFTER
MOTION TO ADMIT CERTIFICATION
BUT: Loyola v. CA 245 S 477 one day after, Roadway
Express v. CA 264 S 696 14 days before the CA dismissed
Petition for Review.
Shipside v. Ca GR 143377, Feb 20, 2001 motion for
reconsideration showing authority of petitioner to execute
certification prior to filing.
REASON special or compelling reasons justified
relaxation of the Rule IN Shipside merits of case
justified deviation.
DISTINGUISH BETWEEN VERIFICATION /
CERTIFICATION
Verification

Certification

-allegations are true and


correct based on personal
knowledge/authentic
records

no action/claim involving
the same issues have been
filed or is pending

-required in complaints,
initiatory pleadings and in
some responsive pleadings.

Required only in
complaints / initiatory
pleadings.

-may be cured by
amendment or order to
verify

cannot be cured by
amendment

-may not result in dismissal

results in dismissal

-may be signed by counsel

by the party himself

129

Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy


v Guadalquiver, 429 SCRA 722
130
HCC Construction and Development Corporation v
Emily Homes Subdivision Homeowners Association, 411
SCRA 504
131
Dar v Alonso Legasto, 339 SCRA 306
132
Docena v Lapesura, 355 SCRA 658
133
Hamilton v Levy, 344 SCRA 821
134
Commissioner of Internal Revenue v SC Johnson, 309
SCRA 87
135
Robern Development Corporation v Quitain, 315 SCRA
150
136
Sy Chin v Court of Appeals, 345 SCRA 673
137
Mercury Drug Corporation v Libunao, 434 SCRA 404

17

RULE 8 MANNER OF MAKING


ALLEGATIONS IN PLEADINGS

HOW ALLEGATIONS
PLEADING

ARE

MADE

IN

In general, a pleading must contain in a METHODICAL and


LOGICAL form a PLAIN, CONCISE, and DIRECT statement
of the ULTIMATE FACTS on which the party pleading relies
for his claim or defense138
1.
ULTIMATE FACTS are the essential facts
constituting the plaintiffs cause of action. A fact is essential
if it cannot be stricken out without leaving the statement of
the cause of action insufficient.
Examples:
(a) That an obligation has been constituted, that party must
comply, that there is no compliance
(b)That party is the owner of property, that he has a right to
its use/possession, that he has been dispossessed
2.
Mere EVIDENTIARY FACTS or those that are
necessary for the determination of the ultimate facts are to
be omitted. Evidentiary facts are the premises upon which
conclusions of ultimate facts are based.
Examples:
(a)That obligation as covered by promissory note was
executed before specified persons, that defendant has
several letters indicating intention to/or not to pay
(b) How property was acquired
3.
LAWS may be pleaded only if the pleading is an
Answer.

A general averment of the performance or occurrence of all


conditions precedent is sufficient.140
(a)that earnest efforts at a compromise have been exerted,
the suit being one between members of the same family
(b)that prior resort to conciliation has been undertaken to
no avail

PLEADING ALTERNATIVE CAUSES OF


ACTION OR DEFENSES

1.
A party may set forth two or more statements of a
claim or a defense alternatively or hypothetically, either in
one cause of action or defense or in separate causes of
actions or defenses. If two or more statements are made in
the alternative and if one of them if made independently
would be sufficient, the pleading is not made insufficient by
the insufficiency of one or more of the alternative
statements.139
Example:
(a) allegations for breach of contract of carriage and tort
(b) allegations for breach of contract and fraud
(c) defense of failure to repurchase by plaintiff and that
property was inherited are inconsistent defenses.
2.
Overruling of one does not bar other defense.
However, if not set up, determination of one shall bar the
determination of the other.
3.
The OBJECT OF PROVISION is to relieve a
party from making a definite election in cases where his
claim or defense might fall within two different substantive
classes. SO, a party may state as many claims/defenses as he
has regardless of inconsistency.

PLEADING CAPACITY TO SUE AND TO BE


SUED

The following must be averred:


(1) capacity to sue or be sued
(2) authority of a party to sue or be sued in a representative
capacity
(3) legal existence of an organized association of persons
that is made a party.141
1.
Note the cross reference to Sections 1 and 3, Rule 3
referring to who may be parties and representative parties,
and to Section 1(d), Rule 16 referring to a motion to dismiss
on the ground of lack of legal capacity to sue, meaning that a
party is not in possession of his civil rights, does not have
the qualification to appear, or does not have the character or
representation claimed.
2.
A party desiring to raise the issue of lack of legal
capacity shall do so by specific denial, which shall include
such supporting particulars as peculiarly within the
pleaders knowledge.

HOW TO PLEAD CONDITIONS


PRECEDENT

HOW TO AVER FRAUD, MISTAKE,


CONDITION OF MIND

Fraud and mistake must be stated with particularity.


Condition of mind, such as malice, intent, knowledge may be
averred generally.142
HOW TO AVER/ PLEAD A JUDGMENT/DECISION
OF A DOMESTIC/FOREIGN COURT,
JUDICIAL/QUASI-JUDICIAL OFFICER TRIBUNAL
BOARD
It is sufficient that a general allegation of the existence of the
judgment is made, without setting forth matter showing
jurisdiction to render it.143 Jurisdiction in this case is
presumed.

IF ACTION/DEFENSE IS BASED ON AN
ACTIONABLE DOCUMENT

1.
Where the action or defense is based on a written
document ( an actionable document) it is pleaded by
(a) setting forth the substance of such document in the
pleading and attaching the original/copy as an
annex OR

140

Supra, Section 3, Rule 8


Supra, Section 4, Rule 8
142
Supra, Section 5, Rule 8
143
Supra, Section 6, Rule 8
141

138
139

Supra, Section 1, Rule 8


Supra, Section 2, Rule 8

18

(b) setting it forth verbatim in the pleading.144


2.
AN
ACTIONABLE
DOCUMENT
IS
CONTESTED by specifically denying it under oath and
setting forth what he claims to be the fact.
2.1

The requirement DOES NOT APPLY IF:


(a) adverse party is not/does not appear to be a party
to the actionable document.
Example: Heirs are sued on a document executed
by a person they will inherit from
(b) when compliance with an order for an inspection of
the original document is refused.145

(c) Allegation of lack of knowledge or information


sufficient to form a belief as to the truth of the
material averment in the pleading of the adverse
party.
1.
If allegations are not denied in the prescribed
manner, a party is deemed to have made a GENERAL
DENIAL
which
is
TANTAMOUNT
TO
AN
ADMISSION.148(Section 11)
1.1
An exception to the rule are allegations that
pertain to UNLIQUIDATED DAMAGES
1.2

(c) when the document is not an actionable document


but is merely evidence of the claim or existence of
the actionable document .
Example: demand letters
(d) when the party who has the benefit of an implied
admission waives the benefit.
Example: he presents evidence as to genuineness
and due execution
3.
The
EFFECT
of
not
SPECIFICALLY
DENYING AN ACTIONABLE DOCUMENT UNDER
OATH is that the genuineness and due execution is
admitted. MEANING, that it was executed by him/by
someone authorized by him, it was in the words/figures set
forth in the pleading, and that the formal requirements of
law have been observed. THUS, there is no need to present it
formally in evidence because it is an admitted fact.
3.1
A PARTY THOUGH IS NOT BARRED FROM
INTERPOSING OTHER DEFENSES as long as it is not
inconsistent with the implied admission. Example: (a) the
defense of forgery would be inconsistent, ON THE OTHER
HAND (b) Fraud/Payment are not inconsistent and may be
allowed.

HOW ARE OFFICIAL ACT/DOCUMENTS


AVERRED

(a) upon motion made by a party before responding to


a pleading
(b) if no responsive pleading is allowed / permitted by
the Rules, upon motion by a party within 20 days
after service of the pleading, OR
(c) upon the Courts own initiative149

RULE 9 EFFECTS OF FAILURE TO


PLEAD
The general effect of the failure to plead is that the defenses
/ objections not so pleaded in an Answer or a Motion to
Dismiss are deemed waived.
HOWEVER, if it appears from the pleadings or evidence on
record that
(a) the Court has no jurisdiction over the subject
matter
(b) there is another action pending between the same
parties for the same cause, or
(c) the action is barred by prior judgment or statute of
limitations, the court shall DISMISS the claim.150
These defenses are not barred if not set up (Section
1)

HOW ARE SPECIFIC DENIALS MADE

A specific denial is made147 by:


(a) Specifically denying the material averment in the
pleading of the adverse party and setting forth the
substance of the matter upon which he relies for
such denial
(b) Deny only a part of the averment by specifying that
so much of it is true and deny the remainder

1.
A compulsory counterclaim or a cross-claim not set
up shall also be barred.151
Note that this is in consonance with the
requirement of the Rules that a a compulsory counterclaim

144

148

145

149

Supra, Section 7, Rule 8


Supra, Section 8, Rule 8
146
Supra, Section 9, Rule 8
147
Supra, Section 10, Rule 8

STRIKING OUT OF A PLEADING OR


MATTER CONTAINED THEREIN

If the pleading or any matter therein is SHAM, FALSE,


REDUNDANT, IMMATERIAL, IMPERTINENT
OR
SCANDALOUS, the court can order the pleading or matter
contained therein to be stricken therefrom

It is sufficient to aver that document was issued or act done


in compliance with law.146
Example: issuance of certification to file action by
Lupon Tagapayapa chair.

Note that when the allegations pertain to


(a) allegations of usury in a complaint to recover
usurious interest,OR
(b) genuineness and due execution of an actionable
document are required to be made UNDER OATH
OTHERWISE THEY ARE ADMITTED.

Supra, Section 11, Rule 8


Supra, Section 12, Rule 8
150
Supra, Section 1, Rule 9
151
Supra, Section 2, Rule 9
19

or cross claim existing at the time of the filing of the answer


must be contained therein152

The available remedies of a defendant who is declared in


default are as follows:

BUT if it arises after the filing of an answer, it may


be set up in a supplemental pleading before judgment153

1.
MOTION TO SET ASIDE ORDER OF
DEFAULT- under oath, filed at any time after notice of
declaration in default and before judgment. Defendant must
show by an AFFIDAVIT OF MERIT that failure to file an
answer was due to FAME and that he has a meritorious
defense

OR if failure is due to oversight, inadvertence,


excusable neglect or when justice requires, it may be set up
by amendment with leave of court before judgment.154

WHAT RESULTS IF DEFENDANT /


DEFENDING PARTY FAILS TO ANSWER
WITHIN THE TIME ALLOWED

If there is failure to plead within the time allowed, the


defendant may be declared in default upon compliance with
the following:
(a) the plaintiff must file a motion to declare the defendant
in default
(b) serve notice of his motion to defendant, which must
include a notice of hearing
(c) at the hearing, show proof of failure on the part of the
defendant to file his answer within the reglamentary
period.155
Note that a court cannot motu propio declare a
defendant in default.

ONCE DECLARED IN DEFAULT

The court can proceed to render judgment granting the


claimant such relief as his pleading may warrant, UNLESS,
the Court in its discretion requires the claimant to submit
the evidence. Such reception may be delegated to the Clerk
of Court, who must be a member of the BAR

2.
MOTION FOR NEW TRIAL on the ground of
FAME if the trial court has rendered judgment but it has not
yet become final
3.
APPEAL the judgment by default (not the order as
it is interlocutory, and cannot be appealed) within 15 days
from notice of judgment. Note: that if in the meantime, a
motion to set aside order of defendant has been denied, it
can be assigned as an error in the appeal. THE NON
FILING THOUGH DOES NOT BAR APPEAL
4.
PETITION FOR RELIEF FROM JUDGMENT
based on FAME provided no appeal has been taken
within 60 days from notice and 6 months from entry of
judgment.159
5.
ACTION TO ANNUL JUDGMENT based on
EXTRINSIC / COLLATERAL FRAUD within 4 years from
discovery of the fraud (ONE THAT INDUCES ONE NOT TO
PRESENT HIS CASE/PREVENTS FULL AND FAIR
HEARING)
6.
CERTIORARI if improperly declared in default
OR motion to set aside was denied and is tainted with grave
abuse of discretion. Filed within 60 days from notice or
judgment order resolution or 60 days from denial (notice) of
motion for reconsideration.160

1.
In addition, the defaulted defendant is entitled to
NOTICE OF SUBSEQUENT PROCEEDINGS but HE
CANNOT TAKE PART IN THE TRIAL.156
2.
EFFECT OF A PARTIAL DEFAULT, where a
pleading asserting a claim states a common cause of action
against several defending parties, some of whom answer
while others do not , THE COURT SHALL TRY THE CASE
AGAINST ALL UPON THE ANSWERS THUS FILED AND
RENDER
JUDGMENT
UPON
THE
EVIDENCE
PRESENTED.157
3.
THE EXTENT OF RELIEF THAT MAY BE
AWARDED shall not exceed the amount or be different in
kind from that prayed for nor
award unliquidated
damages.158

CASES WHERE NO DEFAULT LIES

In the following cases, default does not lie:


(a)
(b)
(c)
(d)
(e)

annulment of marriage
declaration of nullity of marriage
legal separation
expropriation, and
forcible entry, illegal detainer and the other actions
covered by the Rules on Summary Procedure.

In the first three cases, the court shall order the


prosecuting attorney to investigate whether or not collusion
exists, and if there is no collusion, to intervene for the state
in order to see that the evidence so presented is not
fabricated.161

WHAT ARE THE REMEDIES OF A


DEFAULTED DEFENDANT

152

Supra, Section 8, Rule 11


Supra, Section 9, Rule 11
154
Supra, Section 10, Rule 11
155
Supra, Section 3, Rule 9
156
Supra, Section 3 (a), Rule 9
157
Supra, Section 3 (c), Rule 9
158
Supra, Section 3 (d), Rule 9
153

159

Supra, Rule 38
Supra, Rule 65
161
Supra, Section 3,(e), Rule 9
160

20

RULE 10 AMENDED AND


SUPPLEMENTAL PLEADINGS

WHAT ARE AMENDMENTS

Amendments consist of:


(1)
Adding or striking out an allegation or the name of
any party
(2)
Corrections of mistakes in the name of a party or
mistaken or inadequate allegation or description in any
other respect.

2.1
That the amendments should not substantially
alter the cause of action or defense is NO LONGER THE
RULE as the Rules now allow the pleading of alternative
causes of action/defenses167 and that all such causes or
defenses must be pleaded in accordance with the rule on
waiver.168
2.2
when:

(a) a responsive pleading has been filed and the


motion for leave to amend is made with intent to
delay
(b) purpose is to confer jurisdiction as the court must
first acquire jurisdiction before it can act169
(c) purpose is to cure the defect of a non-existent cause
of action.
Example: An amendment of the complaint to
correct its having been filed prematurely or when
the obligation was not yet due.

PURPOSE FOR ALLOWING AMENDMENTS

Actual merits of the controversy may speedily be determined


without regard to technicalities and in the most expeditious
and inexpensive manner. 162

KINDS OF AMENDMENTS

The kinds of amendments are:


1.
Formal Amendments which are defects in the
designation of the parties, other clerical or typographical
errors that may summarily be corrected provided no
prejudice is caused the adverse party and are allowed at any
stage, at the Courts own initiative or on motion.163
2.
ALL OTHER AMENDMENTS ARE considered as
SUBSTANTIAL.

WHEN AMENDMENTS CAN BE MADE

1.
Formal and Substantial amendments can be made
once as a matter of right before a responsive pleading is
served, or in case of a Reply, at any time within 10 days after
it is served.164
1.1
Note that the FILING OF MOTION TO DISMISS
does not bar an amendment as it is not a responsive
pleading, but can no longer be made if the order dismissing
the complaint has become final.
1.2
Prior to the filing of an answer, the plaintiff has the
absolute right to amend the complaint whether a new cause
of action or change in theory is introduced.165

The Trial Court may refuse leave or amendments

2.3
IF NO LEAVE IS OBTAINED, the pleading it has
no standing and may be stricken from records
2.4
PROBLEM: Complaint is filed against several
defendants. Some defendants answer, the others have not
yet filed their answers. Amendments will be allowed as a
matter of right against those who have not filed answers,
and with leave of court, as against those who have filed their
answers.170
3.
Substantial amendments can also be made when it
is necessary to conform to the evidence. This occurs when
issues are tried with the express or implied consent of
parties. If such, they are treated in all respects as if they have
been raised in the pleadings171, thus paving the way for an
amendment of the pleadings to conform to the evidence.
This is made upon motion of any party, even after judgment
THOUGH FAILURE TO AMEND DOES NOT AFFECT
THE RESULT OF THE TRIAL.
Example: Increased claim for the payment of
damages OR made to authorize presentation of evidence.
This occurs when evidence is objected to at the trial on the
ground that it is not within the issues made by the pleadings,
the court may allow the pleadings amended and shall do so
with liberality to authorize presentation of evidence.172
3.1
THUS, the failure of a complaint to state a cause of
action may be cured by
(1) Presentation of evidence to prove that cause of
action followed by an amendment to conform to
evidence, OR
(2) Evidence is objected to and the trial court sustains
the objection, this is then followed by an
amendment with leave of court to authorize
presentation of evidence. Same remedies may be
resorted to WHEN A PARTY FAILS TO RAISE
A DEFENSE IN HIS PLEADING.

2.
After the filing of a responsive pleading,
Substantial amendments require leave of court, but leave
may be refused if it appears to the court that the motion was
on made with INTENT TO DELAY. Orders related to leave
shall be made upon motion filed in court, with notice to the
adverse party and opportunity to be heard.166

167
162

Supra, Section 1, Rule 10


163
Supra, Section 4, Rule 10
164
Supra, Section 2, Rule 10
165
Remington Industrial Sales Corporation v Court of
Appeals, 382 SCRA 499
166
Supra, Section 3, Rule 10

Supra, Section 2, Rule 8


Supra, Section 1, Rule 9
169
Tirona v Alejo, 367 SCRA 17, Gaspar v Dorado, 15
SCRA 331
170
Siasoco v Court of Appeals, 303 SCRA 186
171
Bernardo v Court of Appeals, 263 SCRA 660
172
Supra, Section 5, Rule 10
168

21


1.

THE
EFFECTS
PLEADING

OF

AN

AMENDED

action mentioned in the original complaint, the court should


not admit the supplemental complaint.179

It supersedes the pleading that it amends

2.
Admissions in the superseded pleading may be
received in evidence against the pleader because it is not
expunged from the records and admissions in the
superseded pleading are in the nature of judicial admissions
made by a party in the course of the proceedings which do
not require proof and ordinarily cannot be contradicted
except by showing that it was made through palpable
mistake or that no such admission was made.173
3.
Claims or defenses alleged in the superseded
pleading but not incorporated in the amended pleading shall
be deemed waived.174

HOW IS AN AMENDED PLEADING FILED

(1) An amended pleading is filed either as a matter of


right or with leave, a supplemental pleading is always
with leave
(2) An amended pleading alleges matters occurring
before the filing of the original pleading, while a
supplemental pleading alleges matters occurring after
the filing of the original pleading
(3) An amended pleading supersedes the original pleading,
while a supplemental pleading allows the
original
pleading to stand.

A new copy of the entire pleading incorporating the


amendments which shall be indicated by appropriate marks
shall be filed.175
1.
NOTE that the date of filing of amended pleadings
does not retroact to the date of the filing of the original
pleading. Hence, the statute of limitations runs until the
filing of the amendment, but, an amendment that 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 that
expired after service of the original complaint. Example: The
statement of a cause of action is imperfect and is corrected
by an amended complaint, the plea of prescription relates to
the time of filing BUT the rule will not apply if a new
defendant is impleaded in the amended complaint and prior
to its filing prescription has set in.

RULE 11: WHEN RESPONSIVE


PLEADINGS ARE TO BE FILED

2.
If covered by the Rules on Summary Procedure, it
is 10 days
3.

If the complaint is amended:


(a) as a matter of right, within 15 days from being
served with a copy
(b) if with leave of court, within 10 days from notice of
order admitting the same. If no new answer is filed,
a previously filed answer may serve as the answer.
HOLDS ALSO FOR ANSWERS TO AMENDED
COUNTER-CLAIMS, CROSS CLAIMS, THIRD
PARTY (ETC) CLAIM OR COMPLAINTS IN
INTERVENTION.182

A supplemental pleading setting forth transactions,


occurrences or events which have happened since the date of
the pleading sought to be supplemented Example: Setting
up counterclaims after an answer has been filed.176

2. A supplemental pleading is meant to supply


deficiencies in aid of an original pleading, not to entirely
substitute the latter.178 Thus, when the cause of action stated
in the supplemental complaint is different from the cause of

ANSWER TO THE COMPLAINT

1.
Within 15 days after service of summons unless a
different period is fixed by the Court.180 The same period
applies to third party complaints.181

WHAT IS A SUPPLEMENTAL PLEADING

1. A supplemental pleading is always upon motion,


and on such terms as are just and upon reasonable notice
and the ADVERSE PARTY IS GIVEN 10 DAYS FROM
NOTICE OF ORDER ADMITTING THE SUPPLEMENTAL
PLEADING TO PLEAD THERETO.177

DISTINCTIONS BETWEEN AN AMENDED


PLEADING
AND
A
SUPPLEMENTAL
PLEADING

4.
If defendant is a foreign private juridical entity,
within 15 days if service of summons is made on the resident
agent, within 30 days from receipt of summons by the entity
at its home office if received by the government office
designated by law.183
5.
If it is a complaint in- intervention, within 15 days
from notice of the order admitting the complaint in
intervention

173

Supra, Section 4, Rule 129


Supra, Section 8, Rule 10
175
Supra, Section 7, Rule 10
176
Supra, Section 9, Rule 11 and Section 2, Rule 9
177
Supra, Section 6, Rule 10
178
Shoemart, Incorporated v Court of Appeals, 190 SCRA
189
174

179

APT v Court of Appeals, 324 SCRA 533


Supra, Section 1, Rule 11
181
Supra, Section 5, Rule 11
182
Supra, Section 3, Rule 11
183
Supra, Section 2, Rule 11, Section 128, Corporation
Code
180

22

6.
If it is a supplemental complaint, within 10 days
from notice of the order admitting the supplemental
complaint. The answer to the complaint shall serve as the
answer to the supplemental complaint if no new or
supplemental answer is filed.184

A complaint is not a responsive pleading. It is to be filed


upon accrual of the cause of action or any time thereafter
but before it is barred by prescription.

7.
If it involves a complaint served on a non-resident
defendant who is not in the Philippines through any of the
modes of extra-territorial service, including by publication,
within a reasonable time which shall not be less than 60
days after notice as the court may specify in its order
granting leave to effect extra-territorial service of summons

ANSWER TO A
COUNTER CLAIM

CROSS

CLAIM

OR

The answer to a cross claim or a counter-claim shall be filed


within 10 days from service.185 NOTE that compulsory
counterclaims need not be answered unless it raises issues
not covered by the complaint .
NOTE that it is required that a compulsory counterclaim or
a cross claim existing at the filing of defendants answer
must be included therein BUT, if it matures / or is acquired
after serving of answer, it may with the courts permission
be presented as such in a supplemental pleading. If already
existing and not set up through oversight, inadvertence, or
excusable neglect, it may, by leave of court be set up as such
by amendment before judgment.186

REPLY

RULE 12 BILL OF PARTICULARS

MAY THE TIME TO PLEAD BE EXTENDED

Upon motion and on terms as may be just, the Court it may


extend or allow it to be filed after the time fixed by the
Rules.189 The court may also, upon like terms, allow an
answer or other pleading t be filed after the time fixed by
these Rules.
1.
NOTE that in cases covered by the Rules on
Summary Procedure, the period cannot be extended nor
shortened.
2.
In quo warranto cases, the period may be
shortened.190
3.
A lawyer shall not, after obtaining extensions of
time to file pleadings, memoranda, or briefs, let the period
lapse without submitting the same or offering an
explanation for failure to do so.191

WHAT IS A BILL OF PARTICULARS

It is a definitive statement of any matter which is not


covered with sufficient definiteness or particularity to enable
him to properly prepare his responsive pleading.192
1.
The PURPOSE of which is to make more
particular or definite the ultimate facts in a pleading but is
NOT INTENDED TO SUPPLY EVIDENTIARY MATTERS
2.
It is to be resorted to when the complaint is
deficient in details with respect to the factual basis of each
and every item claimed, but such deficiency is not such as to
amount to a failure to state a cause of action as the remedy
then is to file a motion to dismiss.193

WHEN SHOULD IT BE FILED

Before filing or responding to a pleading or before filing an


answer. If pleading is a reply, within 10 days from service
thereof

It must be filed within 10 days from service of the pleading


responded to.187 Altough the filing of a reply is optional as if
one is not filed, all new matters are deemed controverted.188

WHEN A COMPLAINT SHOULD BE FILED

WHEN WILL OR WHEN CAN COURT ACT


UPON IT

Upon filing of the motion that points out the defects


complained of, the paragraphs wherein they are contained,
and the details desired (it is a litigated motion, thus requires
a notice of hearing) the CLERK OF COURT must
IMMEDIATELY BRING IT TO THE ATTENTION OF THE
COURT, who may deny or grant the motion OUTRIGHT or
allow the parties an opportunity to be heard.194
1.
IF GRANTED, whether in WHOLE or in PART, the
compliance therewith must be effected within 10 days from
notice of order, unless a different period is fixed by the
Court.
2.
The BILL OF PARTICULARS may be filed
either in a separate or in an amended pleading, serving a
copy on the adverse party.195 ONCE filed, it becomes part of
the pleading for which it is intended.196

184

Supra, Section 7, Rule 11


Supra, Section 4, Rule 11
186
Supra, Sections 8,9, and 10, Rule 11
187
Supra, Section 6, Rule 11
188
Supra, Section 10, Rule 6
189
Supra, Section 11, Rule 11
190
Supra, Section 8, Rule 66
191
Rabanal v Tugade, 383 SCRA 484
185

192

Supra, Section 1, Rule 12


Sabangan v Manila Railroad Company, 28 SCRA 772
194
Supra, Section 2, Rule 12
195
Supra, Section 3, Rule 12
196
Supra, Section 6, Rule 12
193

23

EFFECT OF NON-COMPLIANCE
ORDER

WITH

In case of failure to obey or insufficient compliance, the


Court may order the pleading or portions thereof to which
the order was directed to be stricken out OR make such
order as it deems just.197 HENCE, it may also dismiss for
failure of the plaintiff to obey order of the Court. 198 The
striking out of a complaint by the lower court upon motion
of the defendant for failure of the plaintiff to comply with an
order requiring him to submit a bill of particulars as a
ground for dismissal is equivalent to an adjudication on the
merits unless otherwise provided by the court.199

WHEN MUST A RESPONSE / ANSWER BE


FILED

After service of a bill / definitive pleading OR notice of


denial of the motion for a bill of particulars, the moving
party has the remaining period that he was entitled to at the
time of the filing of the motion, which shall not be less then
5 days in any event.200

registry receipt shall be date of the filing / deposit of court.


The envelope shall be attached to the record. It bears
stressing that it is the date of mailing, not the date of receipt
of the mail matter, which shall be considered as the date of
filing.204
This has been the practice since mail is considered
an agent of the Government.205
This is also known as the MAILBOX RULE.
2.
The PAPERS that are to served or ARE TO BE
FILED / SERVED are JUDGMENTS, RESOLUTIONS,
ORDERS,
PLEADINGS
SUBSEQUENT
TO
THE
COMPLAINT,
WRITTEN
MOTIONS,
NOTICE,
APPEARANCES, REMAND, OFFER OF JUDGMENT OR
SIMILAR PAPERS SHALL BE FILED AND SERVED UPON
AFFECTED PARTIES206

The general rule is that PLEADINGS, MOTION, NOTICES,


ORDERS, JUDGMENTS AND OTHER PAPERS shall be
served PERSONALLY or by MAIL.207
1.

The Rule applies to all pleadings / papers as well as service


thereof, except those for which a different mode of service is
prescribed.201
FILING / SERVICE DEFINED

FILING is the act of presenting the pleading or other paper


to the clerk of court, while SERVICE is the act of providing a
party with a copy of the pleading / paper
IF A PARTY IS REPRESENTED BY COUNSEL service is
made upon counsel or one of them UNLESS service is
ordered to be made upon the party by the Court.
If there is one counsel for several parties, he is entitled to
only one copy served by the opposite side. 202

MODES OF FILING

The modes of filing are


(1) Presenting the original copies of pleadings,
appearances, motions, notices, orders, judgments
and all other papers to the clerk of court, OR
(2) By registered mail.203

IF PERSONALLY served, it may done:


(a) by delivering personally a copy to party or his
counsel, OR
(b) leaving it in his office with a clerk or person having
charge thereof, OR
(c) IF NO PERSON IS FOUND IN THE OFFICE OR
HE HAS NO OFFICE, by leaving a copy between
the hours of 8am to 6pm at partys / counsels
residence, if known, with a person of sufficient age
and discretion residing therein.208

RULE 13 FILING / SERVICE OF


PLEADINGS JUDGMENTS / OTHER
PAPERS

WHAT ARE THE MODES OF SERVICE

2.
IF BY MAIL, by depositing a copy in the post office
in a sealed envelope, plainly addressed to the party or
counsel, if known, at his address / office, OTHERWISE, at
his residence, if known, postage prepaid and with
instructions to the postmaster to return the mail to sender
after 10 days if UNDELIVERED. If no registry service is
available in the locality of the addressee or sender, service
may be by ordinary mail.209
2.1
If mailed by PRIVATE CARRIER, the date of
actual receipt by the court of such pleading and not date of
delivery to the carrier is deemed the date of filing of that
pleading.210
3.
NOTE THOUGH THAT JUDGMENTS, FINAL
ORDERS OR RESOLUTIONS shall be served personally
or by registered mail.
3.1
ALSO, if a party is summoned by publication, and
he has failed to appear, judgments, final orders / resolutions

1.
The clerk of court shall if filing be PERSONAL,
endorse on the pleading, the date and the hour of filing. If it
BY MAIL, the date appearing on the post office stamp /
204
197

Supra, Section 4, Rule 6


198
Supra, Section 3, Rule 17
199
Vda. De Quillosa v Salazar, 14 SCRA 656
200
Supra, Section 5, Rule 12
201
Supra, Section 1, Rule 13
202
Supra, Section 2, Rule 13
203
Supra, Section 3, Rule 13

Ansel v Aledo, 420 SCRA 645


Supra, Mintu v Court of Appeals, 53 SCRA 114
206
Supra, Section 4, Rule 13
207
Supra, Section 5, Rule 13
208
Supra, Section 6, Rule 13
209
Supra, Section 7, Rule 13
210
Industrial Timber Corporation v NLRC, 233 SCRA 597,
Beneco v NLRC, 209 SCRA 55
24
205

shall also be served upon him by publication at the expense


of the prevailing party.211

(2) FILED BY REGISTERED MAIL by the registry


receipt and the affidavit of the person who did the
mailing containing a FULL STATEMENT OF:

4.
IF SERVICE CANNOT BE MADE personally or by
mail, SUBSTITUTED SERVICE MAY BE AVAILED OF as
long as the office and place of residence of the party or his
counsel is also unknown, service may be made by delivering
a copy to the clerk of court, with proof of failure of both
personal service and service by mail. The service is complete
at the time of such delivery.212

1. Where the address of the respondents counsel is 83


kilometers away from the address of petitioners counsel,
such distance makes personal service impracticable, and a
written explanation why service was not done personally
might have been superfluous. Liberal construction has been
allowed in cases where the injustice to the adverse party is
not commensurate with the degree of thoughtlessness in not
complying with the procedure prescribed.215
WHAT CONSTITUTES PROOF OF FILING

Proof of filing is shown by:


(a)
existence of the pleading or other paper in the
records of the case
(b)
If not in the record, but is claimed to be:

WHAT CONSTITUTES PROOF OF SERVICE

Proof of service is shown by:


(a) Written admission of the party served OR official
return of the server, or affidavit of the party
serving, containing a full statement of the DATE,
PLACE, MANNER OR SERVICE if served
personally
(b) An affidavit of the person mailing of facts showing
compliance with Section 7 of the Rule if served by
ordinary mail
(c) An affidavit and registry receipt issued by the
mailing office. The registry return card shall be
filed immediately upon its receipt by the sender, or
in lieu thereof, the unclaimed letter together of the
sworn / certified copy of the notice given by the
postmaster to the addressee.217

WHAT IS THE RULE ON PRIORITY OF


SERVICE

Whenever practicable, service and filing of pleadings and


other papers shall be done personally EXCEPT, with papers
emanating from the court. A resort to other modes must be
accompanied by an explanation why service or filing was not
done personally. IF NOT, it may be cause to consider the
paper as not filed. 214

WHEN SERVICE IS COMPLETE

Service will be deemed complete:


(a) Upon actual delivery if undertaken personally
(b) Upon expiration of 10 days after mailing, unless the
Court orders otherwise if undertaken by ordinary
mail
(c) Upon actual receipt by addressee or after 5 days
from the date he received the 1st notice of the
postmaster, whichever date is EARLIER, if
undertaken by registered mail213
(d) At the time of delivery to the clerk of court, if
undertaken by substituted service

(a) Date and place of depositing in the


post office in a sealed envelope addressed to the
Court, with postage prepaid, and
(b) Instructions are given to the
postmaster to return the mail to sender after 10
days, if undelivered.216

1.
If service is by registered mail, proof of service
consists of the affidavit of the person mailing and the
registry receipt, both of which must be appended to the
motion. Absent one or the other, or both, there is no proof of
service.218
2.
Late filing of the affidavit of service may be
considered as substantial compliance with the Rules.219
3.
Failure of a party to comply with the required proof
of service may be excused where the motion is not a
contentious motion and therefore, no right of the adverse
party would be affected by the admission thereof.220

NOTICE OF LIS PENDENS

Is an announcement to the world that a particular property


(real) is in litigation, serving as a warning that one who
acquires the property or an interest therein does at his own
risk which is filed with the Office of the Register of Deeds of
the place where the property is located.
1.

(1) FILED PERSONALLY by the written / stamped


acknowledgment of its filing by the Clerk of Court
on a copy, and

It shall contain
(a) the names of the parties
(b) object of the action or defense
(c) description of the property.221

2.
It is only from the time of the filing of the notice for
record shall a purchaser or encumbrancer of the property
211

216

212

217

Supra, Section 9, Rule 13


Supra, Section 8, Rule 13
213
Supra, Section 10, Rule 13
214
Supra, Section 11, Rule 13
215
Maceda v. De Guzman vda de Macatangay, 481 SCRA
415

Supra, Section 12, Rule 13


Supra, Section 13, Rule 13
218
Cruz v Court of Appeals, 388 SCRA 72
219
Ace Navigation, Inc v Court of Appeals, 338 SCRA 70
220
PEA v Caoibes, Jr., 312 SCRA 767
221
Supra, Section 14, Rule 13
25

affected thereby, be deemed to have constructive notice of


the pendency of the action and only of its pendency against
parties designated by their real names

1.
An Officer having management of a jail or
institution, if a defendant is a prisoner therein is deputized
as a special sheriff for service of summons.228

3.
It is available only in an action affecting title or
right of possession of real property. Specifically in actions
(a)
(b)
(c)
(d)
(e)

to recover possession of real estate


to quiet title
to remove a cloud
for partition
other proceeding of any kind in court directly
affecting title to the land or the use or occupation
thereof or buildings thereon.222

WHO MAY AVAIL OF IT

The plaintiff or the defendant when affirmative relief is


claimed in the answer

WHEN MAY IT BE CANCELLED

Upon order of the court when: It is shown that it has for the
purpose of molesting the adverse party or it is not necessary
to protect the rights of the party who caused it to be
recorded.223

RULE 14 SUMMONS

DEFINED

It is a writ issued sealed and signed by the clerk of court


upon filing of a complaint and payment of requisite legal
fees224 ISSUED to and DIRECTED to the defendant
containing the following:
(a) name of the court and of the parties
(b) a direction that the defendant answer within the
time fixed by the Rules, and
(c) notice that unless defendant answers, plaintiff will
take judgment by default and may be granted the
relief prayed for. ATTACHED THERETO IS A
COPY OF THE COMPLAINT AND ORDER FOR
THE APPOINTMENT OF A GUARDIAN AD
LITEM, IF ANY.225
1.
It shall also contain a reminder to the defendant to
observe restraint in filing a motion to dismiss and instead
allege the grounds thereof as defenses in the answer.226

WHO SERVES SUMMONS

SIGNIFICANCE OF SUMMONS

The significance of summons is that it is the primary means


by which a Court is able to acquire jurisdiction over the
person of the defendant and to give notice that an action has
been commenced against him.
1.
Jurisdiction cannot be acquired over the person of
the defendant even if he knows of the case against him
unless he is validly served with summons229 OR the
defendant voluntarily appears in the action.
2.
Voluntary appearance shall be equivalent to service
of summons. The 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.230
2.1
The rule abandons previous rulings of the Supreme
Court that a motion to dismiss on the ground of lack of
jurisdiction over the person be based solely on that ground,
otherwise, it is a voluntary appearance. This is so because of
the OMNIBUS MOTION RULE231 that all objections
then available be included otherwise they are waived, as the
only exceptions are
(1) the Court has no jurisdiction over the subject matter;
(2) there is another action pending between the same
parties for the same cause;
(3) or, the action is barred by prior judgment or statute of
limitations.232 These defenses are not barred if not set up.

WHAT ARE THE MODES OF SERVICE

1.
Service in person on the defendant by handling a
copy thereof to the defendant in person, or if he refuses to
receive and sign for it, by tendering it to him233
2.
Substituted service by leaving a copy of the
summons at defendants residence with some person of
suitable age and discretion, then residing therein or leaving
it at defendants office or regular place of business with
some competent person in charge thereof.234
2.1
BUT, it may only be resorted to, if for justifiable
causes, the defendant cannot be served personally within a
reasonable time. The impossibility of service in person must
be indicated in the return, otherwise, substituted service is
void. 235
2.2
Service of summons on the defendant shall be by
personal service first and only when the defendant cannot

The sheriff, his deputy, or other proper Court Officer, or for


justifiable reasons by any suitable person authorized by the
court issuing the summons.227
228
222

Viewmaster Construction Corporation v Maulit, 326


SCRA 821, Alberto v Court of Appeals, 334 SCRA 756
223
Lim v Vera Cruz, 356 SCRA 386
224
Supra, Section 1, Rule 14
225
Supra, Section 2, Rule 14
226
A.M. No. 03-1-09-SC
227
Supra, Section 3, Rule 14

Supra, Section 9, Rule 14


UCPB v Ongpin, 368 SCRA 464
230
Supra, Section 20, Rules 14
231
Supra, Section 8, Rule 15
232
Supra, Section 1, Rule 9
233
Supra, Section 6, Rule 14
234
Supra, Section 7, Rule 14
235
Hamilton v Rey, GR 139283, November 15, 2000
229

26

promptly be served in person will substituted service be


availed of.236
3.
Service by publication with leave of court, obtained
by the filing of a motion in writing, supported by an affidavit
of the plaintiff or some person in his behalf, setting forth the
ground that allows resort to it.237

OF

(a) AN
ENTITY
WITHOUT
JURIDICAL
PERSONALITY it is to be served upon any one of
them or upon person in charge of the office or place
of business maintained in such name BUT such
shall not bind individually any person whose
connection with the entity has, UPON DUE
NOTICE, been severed before the action has
brought244

(a) Identity of the defendant is unknown OR whereabouts of


the defendant is unknown and cannot be ascertained by
diligent inquiry238
(b) Defendant does not reside and is not found in the
Philippines but the suit can be maintained against him
because it is in REM OR QUASI IN REM239
(c) Defendant is a Philippine resident but is temporarily out
of the country.240
Note the cross reference with Section 15 and the
fact that SUBSTITUTED SERVICE MAY ALSO BE
AVAILED OF.

(b) MINOR,
INSANE
OR
OTHERWISE
INCOMPETENT it is to be served upon him
personally and his guardian / or guardian ad litem.
In addition, in case of a minor, service may also be
made on his father or mother245
(c) REPUBLIC OF THE PHILIPPINES it is to be
served on the Solicitor General 246

4.
Extra-Territorial Service is allowed in suits against
a non-resident defendant not found in the Philippines can
be made by:

(d) PROVINCE,
CITY,MUNICIPALITY
OR
SIMILAR PUBLIC CORPORATION it is to be
served on the executive head, or on such other
officers as the law or court may direct247

4.1

(a) Personal service


(b) Publication in a newspaper of general
circulation in such places and for such time as the court may
order, in which case a copy of the summons and order of the
court shall be sent by registered mail to the last known
address
(c) Or any other manner the court may deem
sufficient.241 Resort to registered mail has been deemed
appropriate.242

(e) DOMESTIC PRIVATE JURIDICAL ENTITY


its is to be served on the president, managing
partner, general manager, corporate secretary,
treasurer or in house counsel.248 Note the
abandonment
of
doctrine
of
substantial
compliance.249
(f) FOREIGN PRIVATE JURIDICAL ENTITY it is
to be served upon its resident agent. If there be no
resident agent, the Government official designated
by law such as the SEC, Insurance Commissioner,
Superintendent of Banks. If none, any of its officers
or agents in the Philippines.

4.2
EXTRA-TERRITORIAL SERVICE CAN BE
AVAILED OF when:

4.3
court.

SERVICE

Service of summons is to be made upon the defendant.


If the defendant is:

3.1
The grounds that allow service of summons
by publication are:

(a) Action affects the personal status of the plaintiff


(b) Action relates to, or the subject of which is property
within the Philippines in which the defendant has or claims
a lien or interest, actual or contingent
(c) When the relief demanded, in whole or in part consists
of excluding the defendant from any interest in property
located in the Philippines
(d) When the defendants property has been attached in the
Philippines.243

UPON
WHOM
MAY
SUMMONS BE MADE

Note the required sequence of service. In addition,


if a lawyer enters an appearance without proof of having
been engaged by the foreign corporation, no voluntary
appearance can be inferred.250

Resort to extra-territorial service requires leave of

AFTER SERVICE IS COMPLETE, WHAT


MUST SERVER DO

1.
Within 5 days after completion, a copy of the return
must be served, personally or by registered mail, to
plaintiffs counsel, and he shall return the summons to the
clerk of court who issued it together with proof of service.251

236

244

237

245

Samartino v Raon, 383 SCRA 664


Supra, Section 17, Rule 14
238
Supra, Section 14, Rule 14
239
Supra, Section 15, Rule 14
240
Supra, Section 16, Rule 14
241
Supra, Section 15, Rule 14, Valmonte v Court of
Appeals, 252 SCRA 92
242
Cariaga v Malaya, 143 SCRA 441
243
Supra, Section 15, Rule 14

Supra, Section 8, Rule 14


Supra, Section 10, Rule 14
246
Supra, Section 13, Rule 14
247
Supra, Section 13, Rule 14
248
Supra, Section 11, Rule 14
249
Mason v Court of Appeals, 413 SCRA 303, E.B.
Villarosa and Partner Co, Ltd v. Benito, 312 SCRA 65
250
Litton Mills v Court of Appeals, 256 SCRA 696
251
Supra, Section 4, Rule 14
27

2.
PROOF OF SERVICE is the writing executed by
the server setting forth
(1) the manner, place and date of service;
(2) the paper/s which have been served with the
process and name of the person who received the
same. IT SHALL BE SWORN TO WHEN MADE BY
A PERSON OTHER THAN THE SHERIFF /
DEPUTY.252
2.1
IF SUMMON IS BY PUBLICATION, PROOF OF
SERVICE CONSISTS OF:
(a) Affidavit of printer, foreman, principal clerk editor,
business manager or advertising manager, COPY
OF PUBLICATION ATTACHED, and
(b) Affidavit showing the deposit of a copy of the
summons and order for publication in the post
office, postage prepaid directed to the defendant by
registered mail at / to his last known address.253

RULE 15 MOTIONS

REQUISITES OF A VALID MOTION

1.
Shall be in writing except when made in open
court or in the course of the hearing or trial.255
Example: a motion for continuance made in presence of
adverse party.
2.
It must state the relief sought to be obtained and
the grounds on which it is based, and if required by the rules
or necessary to prove facts alleged therein, it shall be
supported by affidavits or other papers.256
3.
It shall be set for hearing by the applicant except
when the motion can be acted upon by the court without
prejudicing the rights of the adverse party.257 Example:
Motion for extension of time to plead
4.
It must contain a notice of hearing addressed to all
parties concerned, specifying the time, date of the hearing
which must not be later than 10 days after the filing thereof.
258

4.1
A motion without a notice of hearing is pro-forma
or a mere scrap of paper. It presents no question which the
court should decide. The rationale behind the rule is plain:
unless the movant sets the time and place of hearing, the
court will be unable to determine whether the adverse party
agrees or objects to the motion, and if he objects, to hear
252

Supra, Section 18, Rule 14


Supra, Section 19, Rule 14
254
Supra, Section 1, Rule 15,
255
Supra, Section 2, Rule 15
256
Supra, Section 3, Rule 15
257
Supra, Section 4, Rule 15
258
Supra, Section 5, Rule 15
253

4.2
The absence of the notice of hearing will not toll the
running of the reglementary period for appeal.260
5.
It must be served, together with the notice of
hearing on the adverse party at least 3 days before the date
of hearing UNLESS THE COURT FOR GOOD CAUSE SETS
THE HEARING EARLIER.261
5.1
The purpose of the three day notice rule is to avoid
surprise upon the opposite party and to give him time to
study and meet the arguments of the motion.262
6.
There must be proof of service of every written
motion set for hearing otherwise it shall not be acted
upon.263
6.1

As a general rule, proof of service is mandatory.264

6.2
A judge can act ex-parte on a motion where the
rights of the adverse party are not affected.265

DEFINED

A motion is an application for relief other than a pleading.254

him on his objection. The objective is to avoid a capricious


change of mind in order to provide due process to both
parties and ensure impartiality.259

WHEN SHOULD MOTIONS BE SET

All motions must be scheduled for hearing on Friday


afternoons or if it be a non-working holiday, in the afternoon
of the next working day UNLESS THE MOTION REQUIRES
IMMEDIATE ACTION.266This day is MOTION DAY.

WHAT SHOULD A MOTION CONTAIN

1.
A motion attacking a pleading (motion to dismiss)
order,
judgment,
or
proceedings
(motion
for
reconsideration) shall include all objections then available,
and all objections not so included are deemed waived
EXCEPT the defenses of Lack of Jurisdiction, Litis
Pendentia, Res Judicata, Statute of Limitations.267
1.1

This is the OMNIBUS MOTION RULE.268

1.2
The purpose of the Rule is to obviate multiplicity of
motions as well as discourage dilatory pleadings. 269
Litigants should not be allowed to reiterate identical
motions speculating on the possible change of opinion of the
court or judges thereof.270
1.3
It requires the movant to raise all available
exceptions in a single opportunity to avoid multiple
piecemeal objections. But to apply the statutory norm, THE
259

Fajardo v Court of Appeals, 354 SCRA 736


Cledera v Sarmiento, 39 SCRA 553
261
Supra, Section 4, Rule 15
262
Remonte v. Bonto, 16 SCRA 257
263
Supra, Section 6, Rule 15
264
Cruz v Court of Appeals, 388 SCRA 72
265
Sumadchat v Court of Appeals, 111 SCRA 488
266
Supra, Section 7, Rule 15
267
Supra, Section 1, Rule 9
268
Supra, Section 8, Rule 15
269
Dacanay v Alvendia, 30 SCRA 31
270
Miranda v Court of Appeals, 71 SCRA 295
260

28

OBJECTIONS MUST BE AVAILABLE TO THE


PARTY AT THE TIME THE MOTION WAS FILED.271
2.
IF MOTION IS ONE FOR LEAVE TO FILE A
PLEADING OR MOTION, IT SHALL BE ACCOMPANIED
BY THE PLEADING / MOTION SOUGHT TO BE
ADMITTED.272 Example: Motion for leave to admit
amended complaint.
3.
As to FORM, the Rules applicable to pleadings
shall apply to written motions as far as it concerns captions,
designation, signature and other matters.273

RULE 16 MOTION TO DISMISS

4.

4.1
This means that he is not in exercise of his civil
rights, or does not have the necessary qualification to appear
or does not have the character / representation he claims AS
OPPOSED TO the LACK OF PERSONALITY TO SUE which
means that he is NOT the real party in interest, and the basis
for dismissal then is NO CAUSE OF ACTION or FAILURE
TO STATE A CAUSE OF ACTION.278
5.
There is another action pending between the same
parties for the same cause
5.1

This is known as litis pendentia

5.2

The REQUISITES for its application are:


(a) Identity of the parties, or at least such as
representing the same interests in both actions
(b) Identity of rights asserted and reliefs prayed
for, the relief being founded on the same facts.
Identity in both cases, is such that judgment in the
pending case would, regardless of which party is
successful amount to res judicata in the other.279

WHEN AND HOW IT CAN BE FILED

1.
By Motion, within the time for the filing of an
answer but before the filing of an answer.
1.1
The rule is not absolute as a motion to dismiss may
still be filed after answer on the ground of
(a) lack of jurisdiction
(b) litis pendentia
(c) lack of a cause of action, and
(d) discovery during trial of evidence that would
constitute ground for dismissal.274
2.
AS AN AFFIRMATIVE DEFENSE IN THE
ANSWER, and in the discretion of the court, a preliminary
hearing may be had as if a motion to dismiss has been filed.
IF ACTION IS DISMISSED, it shall be without prejudice to
the prosecution in the same / separate action of a counterclaim pleaded in the answer.275

5.3
BETWEEN THE FIRST OR SECOND ACTION /
OR LATTER ACTIONS APPLY THE PRIORITY IN TIME
RULE BUT RULE MUST YIELD TO THE MORE
APPROPRIATE ACTION.
Example: An action for declaratory relief to
interpret a lease contract was filed before an ejectment case,
where the Supreme Court held that the ejectment case is the
more appropriate action.280
5.4
There is a 3RD TEST: INTEREST OF JUSTICE
RULE which is a determination of which court would be in
a better position to serve the interest of justice considering:
(a) nature of the controversy;
(b) comparative accessibility of the court to the parties;
(c) other similar factors.281

WHAT GROUNDS ARE AVAILABLE

A motion to dismiss may be made on any of the following


grounds:276
1.
The court has no jurisdiction over the person of the
defending party

Plaintiff has no legal capacity to sue

6.
The cause of action is barred by a prior judgment or
by the statute of limitations
6.1

The REQUISITES OF RES JUDICATA are:

2.
The court has not jurisdiction over the subject
matter of the claims

(a)
(b)

3.

(c)

Venue is improperly laid

(d)

3.1
An objection to improper venue must be made
before a responsive pleading is filed, otherwise it is deemed
waived.277

Former judgment must be FINAL


Rendered by a court having jurisdiction
over the subject matter and the parties
It must be a judgment or order on the
merits
There must be between 1st / 2nd action,
identity of parties / subject matter /
causes of action

271

PH Credit Corporation v Court of Appeals, 370 SCRA


155
272
Supra, Section 9, Rule 15
273
Supra, Section 10, Rule 15
274
Panganiban v Pilipinas Shell Petroleum Corporation,
395 SCRA 624
275
Supra, Section 6, Rule 16
276
Supra, Section 1, Rule 16
277
Fernandez v ICB, 316 SCRA 326

278

Columbia Pictures, Inc. v Court of Appeals, 261 SCRA


144, Travelwide Assn of the Phil. v. Court of Appeals, 199
SCRA 205
279
Victronics Computer v RTC, 217 SCRA 517
280
Teodoro v Mirasol, 99 Phil 150
281
Roa-Magsaysay v Magsaysay, 98 SCRA 592
29

6.2
The
GROUNDS:
(a)
(b)

DOCTRINE

IS

FOUNDED

ON

Public policy and necessity which makes it


in the interest of the state that there
should be an end to litigation
Litigant should be spared the hardship of
being vexed twice for the same cause

6.3
NOTE that there can be no res judicata in support
cases as future support cannot be compromised.282
6.4
Statute of Limitations or prescription is a statute
establishing a period of time from the accrual of a cause of
action within which a right of action must be exercised. If
the action is not brought within the period, then it is barred.
7.
action.

The pleading asserting the claim states no cause of

7.1
The TEST OF SUFFICIENCY OF A CAUSE OF
ACTION is: Whether accepting the veracity of the facts
alleged in the complaint, the Court can render judgment
(valid) upon the same in accordance with the prayer in
complaint.
7.2
NO
PRESENTATION
OF
EVIDENCE
IS
REQUIRED AS THERE IS A HYPOTHETICAL ADMISSION
OF THE FACTS ALLEGED IN THE COMPLAINT
7.3
FAILURE TO STATE A CAUSE OF ACTION/NO
CAUSE OF ACTION DISTINGUISHED FROM LACK OF A
CAUSE OF ACTION283:
(a)
(b)

(c)

The former refers to insufficiency of


allegations, while the latter refers to
insufficiency of factual basis
The former is raised only in a in a motion
to dismiss before responding to a
complaint, while the latter can be raised at
any time
The former allows dismissal to be had at
the early stages of the action, while the
latter allows dismissal after questions of
fact have been resolved after evidence is
presented or stipulations / admissions are
had.

10.1
In certain cases, referral of a case to the Lupon is a
condition precedent for filing a complaint in court. It is not
jurisdictional.285 It may be waived if not raised seasonably in
a motion to dismiss.286

RESOLUTION OF A MOTION TO DISMISS

1.
It shall BE HEARD287, at the hearing, the parties
shall submit arguments on the questions of law and evidence
on the questions of law and fact involved EXCEPT THOSE
NOT AVAILABLE AT THAT TIME. SHOULD THE CASE
GO TO TRIAL, EVIDENCE DURING THE HEARINGS
SHALL AUTOMATICALLY BE PART OF THE EVIDENCE
OF PARTY PRESENTING THE SAME.
2.
After the hearing, Court shall either DISMISS THE
ACTION, DENY THE MOTION OR ORDER AMENDMENT
OF THE PLEADING, stating clearly and distinctly the
reasons for the action taken.288
2.1
It is now mandated that the Court cannot defer
resolution of the motion based on the reason that the
ground relied upon does not appear to be indubitable or
sure
3.
IF MOTION IS DENIED, the movant shall file
an answer within the balance of the period prescribed by
Rule 11, which he was entitled to at the time of serving the
motion, but not less than 5 days in any event, COUNTED
FROM NOTICE OF DENIAL. IF ORDERED AMENDED, an
answer is to be filed within period prescribed by Rule 11,
counted from service of amended pleading, unless the court
provides a longer period. Note that it is 15 days as no answer
has of yet been filed. Hence the amendment is one that is a
matter of right.289
3.1
The EFFECT OF DISMISSAL is that subject to
the right to appeal, an order granting a motion to dismiss on
the grounds of
(a)
(b)
(c)

prior judgment or statute of limitations


claim / demand has been paid, waived
abandoned or otherwise extinguished, or
is unenforceable under the statute of
frauds SHALL bar refiling of the same.290

8.
Claim or demand set forth in plaintiffs pleading
has been paid, waived, abandoned, or otherwise
extinguished

RULE 17 - DISMISSAL OF ACTIONS

9.
Claim on which the action is founded is
unenforceable under the provisions of the statute of frauds.

9.1
Statute of Frauds is statute/s that deals with the
enforcement and requirements of agreements in particular
circumstances. It is descriptive of statutes which require
certain classes of contracts to be in writing.284
10.
A condition precedent for filing the claim has not
been complied with

PLAINTIFF DISMISSAL
COMPLAINT

OF

HIS

OWN

A plaintiff may cause the dismissal of his complaint by:


1.
Filing of a notice of dismissal at anytime before
service of an answer or motion for summary judgment. Once
filed, the court shall issue an order confirming the dismissal,
285

Junson v martinez, 405 SCRA 390


Banares v Balising, 328 SCRA 36
287
Supra, Section 2, Rule 16
288
Supra, Section 3, Rule 16
289
Supra, Section 4, Rule 16
290
Supra, Section 5, Rule 16
286

282

De Asis v Court of Appeals, 303 SCRA 176


Supra, Rule 33
284
Litonjua v Fernandez, 427 SCRA 478
283

30

which is without PREJUDICE, unless stated otherwise.


BUT, such dismissal will operate as adjudication on the
merits when filed by a plaintiff who has once dismissed in a
competent court, his action based on or including the same
claim.291 This is known as the 2 dismissal rule.
2.
Filing a motion to dismiss but such will not result
in dismissal without the approval of the court and upon
terms and conditions as the court deems proper.
BUT, if a counterclaim has been pleaded before service
of motion to dismiss the dismissal is limited to the
complaint. If shall be without PREJUDICE TO RIGHT OF
DEFENDANT to prosecute his counterclaim in a separate
action unless within 15 days from notice of the motion he
manifests a preference to have it resolved in the same action.
UNLESS specified, a dismissal is without prejudice. NOTE
also that a CLASS SUIT shall not be dismissed or
compromised without the approval of the Court.292

COURT DISMISSAL ON ITS MOTION OR


THAT OF DEFENDANT

The court can motu propio or upon motion of the defendant


dismiss a complaint when:
(a) If, for no justifiable reason, the plaintiff fails to appear
on the date of the presentation of his evidence in chief on the
complaint
(b) If, for no justifiable reason, plaintiff fails to prosecute
his action for an unreasonable length of time
(c) If, for no justifiable reason, plaintiff fails to comply with
Rules of Court or any order of the Court.
DISMISSAL IS WITHOUT PREJUDICE TO RIGHT
OF
THE
DEFENDANT
TO
PROSECUTE
HIS
COUNTERCLAIM IN THE SAME OR SEPARATE ACTION
and SHALL HAVE THE EFFECT OF ADJUDICATION ON
THE MERITS, UNLESS OTHERWISE DECLARED BY THE
COURT.293
1.

The REMEDIES OF THE PLAINTIFF are:


(a)
(b)

Appeal the dismissal as it is a FINAL


ORDER, or
If without prejudice, REFILE THE
ACTION as an order dismissing without
prejudice is not subject to appeal.

2.
At the pre-trial, the court ordered the parties to
submit a compromise agreement within a ten day period.
The parties were unable to submit the compromise
agreement, thus leading to a dismissal. There is nothing in
the rules that imposes a sanction for failure to submit a
compromise agreement.294

APPLICABILITY OF THE RULE

summary judgment is served, or if there be none, before


introduction of evidence at the trial or hearing.295

RULE 18 PRE-TRIAL

WHAT IS PRE-TRIAL

It is a procedural devise intended to clarify and limit the


basic issues between the parties. Its main objective is to
simplify, abbreviate and expedite trial, or otherwise
dispense with it.296
It is a conference or hearing at which the court, with the
cooperation of the parties, seek to determine definitively
what precisely are the factual issues to be tried and how each
party intends to establish his position on each disputed
factual issue.

WHEN CONDUCTED

After the last pleading has been served and filed. It shall be
the duty of the plaintiff to move ex-parte that the case be set
for pre-trial.297
1.
SC Adm. Circular 3-99 dated January 15, 1999
defined promptly as 5 days.
2.
SC Administrative Matter No. 03-1-09, SC, Section
A (1.2) Should the plaintiff fail to move ex-parte to set case
for pre-trial, the branch clerk of court should issue a notice
of pre-trial.
2.1
The same circular also requires that the presiding
judge direct the parties to mediation, if possible. If it fails it
will schedule the pre-trial BUT IT MAY ALSO SCHEDULE A
PRELIMINARY CONFERENCE before the branch clerk of
court to assist them in REACHING A SETTLEMENT, PREMARKING OF DOCUMENTS AND EXHIBITS AND TO
CONSIDER OTHER MATTERS THAT WILL AID IN
PROMPT DISPOSITION. The JUDGE is also directed to
consider assisting the parties in effecting a settlement given
the evidence of the parties.
3.
The last pleading is the answer to the original
complaint, cross claim, or, third party complaint AND the
reply.

NATURE AND PURPOSE

Pre-trial is by nature mandatory and the purpose for its


conduct is to take up the following matters:298

Rule applies to dismissal by the DEFENDANT of his


counterclaims cross-claims or 3rd party claims. Voluntary
dismissal by the claimant by notice as under Section 1 of the
Rule shall be made before a responsive pleading, motion for

1.
Possibility of amicable settlement / or submission
to alternative modes of dispute resolution

291

295

292

296

Supra, Section 1, Rule 17


Supra, Section 2, Rule 17
293
Supra, Section 3, Rule 17
294
Ruiz, Jr v CA, 212 SCRA 660

2.

Simplification of the issues

Supra, Section 4, Rule 17


Interlining v Philippine Trust Company, 378 SCRA 521
297
Supra, Section 1, Rule 18
298
Supra, Section 2, Rule 18
31

3.
Necessity / desirability of amendment to the
pleadings

WHAT MUST BE FILED BEFORE PRETRIAL

4.
Possibility of obtaining stipulations or admissions
of fact and of documents to avoid unnecessary proof

A pre-trial brief must be filed and served on the adverse


party at least 3 days before the pre-trial containing:303

5.

1.
Statement of willingness to enter into an amicable
settlement, the desired terms or to submit to alternative
modes of dispute resolution

Limitation of number of witnesses

6.
Advisability of a preliminary reference of issues to a
commissioner
7. Propriety of judgment on the pleadings, summary
judgment, or dismissing the action if a valid ground therefor
be found to exist
8. Advisability of suspending the proceedings
9. Such other matter as may aid in the prompt disposition of
the action

3.

UPON WHOM NOTICE OF PRE-TRIAL IS


TO BE SERVED

WHOSE PRESENCE IS REQUIRED AT PRETRIAL

The parties and counsel are required to be present during


the pre-trial. A party may be excused if:
(a)
A valid cause is shown therefore
(b)
A representative shall appear duly
authorized in writing to do the following:
(1)
enter into amicable settlement;
(2)
submit to alternative modes of
dispute resolution;
(3)
enter
into
stipulations
/
admissions
of
fact
/
documents.300

4.
Number of witnesses / names, abstract of
testimonies, approximate number of hours that will be
required for presentation of their respective evidence

EFFECT OF FAILURE TO APPEAR

1.

If plaintiff fails to appear despite DUE NOTICE, he


may be declared NON SUITED and the complaint
DISMISSED. The dismissal shall be with prejudice,
unless otherwise ordered by the court.
HIS
REMEDY is to appeal order of dismissal because it
is a FINAL resolution. If dismissed without
prejudice, he can REFILE the complaint

2.

If defendant fails to appear despite due notice,


plaintiff IS ALLOWED to present his evidence exparte and the court may render judgment on the
basis thereof. 301

3.

AS A RULE, THERE CAN BE NO SECOND PRETRIAL UNLESS BOTH PARTIES CONSENT.302

6.
Manifestation of their having availed of or their
intention to avail of discovery procedure, or need for referral
of any issues to commissioners
7.

Supra, Section 3, Rule 18


300
Supra, Section 4, Rule 18
301
Supra, Section 5, Rule 18
302
Young v Court of Appeals, 204 SCRA 584

Applicable law / jurisprudence

8.
Available trial dates of counsel for complete
presentation of evidence which must be within a period 3
months from the first day of trial.304
FAILURE TO FILE A PRE-TRIAL BRIEF SHALL HAVE
THE SAME EFFECT AS FAILURE TO APPEAR

PRE-TRIAL ORDER

Proceedings shall be recorded. Upon termination, court


shall issue an order which shall recite in detail:
(a)
(b)
(c)
(d)
(e)

matters taken up
action taken thereon
amendments allowed to the pleadings
agreements / admissions made by the
parties as to any of the matters taken
explicitly defining and limiting the issues
to be tried. OBJECT it shall control the
subsequent course of the action, UNLESS
MODIFIED TO PREVENT MANIFEST
INJUSTICE. 305

1.
Pre-trial is primarily intended to make certain that
all issues necessary to the disposition of a case are properly
raised. Thus, to obviate the element of surprise, parties are
expected to disclose at a pre-trial conference all issues of law
and fact which they intend to raise at the trial, except such
as may involve privileged or impeaching matters. The
determination of issues at a pretrial conference bars the
consideration of other questions on appeal.306

303
299

Issues to be tried or resolved

5.
Copies of all documents intended to be presented
which statement of the purposes of their offer

It shall be served on counsel, or party if not represented by


counsel. Counsel is charged with the duty to notify the
party.299

2.
Summary of admitted facts / proposed stipulation
of facts

Supra, Section 6, Rule 18


Section 6, SC Adm. Circular 3-99, January 15, 1999
305
Supra, Section 7, Rule 18
306
Son vs. Son, 251 SCRA 556; PPA vs. City of Iloilo, 406
SCRA 88
32
304

2.
NOTE THAT TRIAL SHALL BE LIMITED TO
ISSUES STATED IN THE PRE-TRIAL ORDER.307

2.

The pleadings in intervention are

3.
Notwithstanding, courts are not required to resolve
all issues raised in pleading unless necessary for the
resolution of the case.308

RULE 19 INTERVENTION

(a)
(b)

3.
If granted, a complaint in intervention is to be
replied to within 15 days from notice of the order admitting
the same unless a different period is fixed by the court.

WHO MAY INTERVENE

A person who has a


(a)
legal interest in the matter in litigation
(b)
has legal interest in the success of either of
the parties
(c)
has an interest against both or
(d)
is so situated as to be adversely affected by
a distribution or other disposition of
property in the custody of the court or an
officer thereof.309
1.
Examples are
(a)
an action for payment of money, where personal
property of the defendant is attached, a 3rd person claiming
the attached property can intervene
(b)
action by alleged owners of the land sought to be
foreclosed.

4.
NO INTERVENTION IS ALLOWED IN LAND
REGISTRATION CASES as the remedy is to file an
OPPOSITION. Neither is it allowed in cases covered by the
Rules on Summary Procedure.
5.
Intervention is merely collateral or accessory or
ancillary to the principal action and not an independent
proceeding. Hence, with the final dismissal of the original
action, the complaint in intervention can no longer be acted
upon.314
6.
An order denying a motion for intervention is
appealable.315

RULE 20 CALENDAR OF CASES

2.
The interest which entitles a person to intervene in
a suit must be in the matter in litigation and of SUCH
DIRECT OR/AND IMMEDIATE CHARACTER that
intervenor will either GAIN or LOSE by direct legal
operation and effect of judgment. 310
3.
lite.311

Intervention does not lie for a transferee pendente

HOW AND
INTERVENE

WHEN

CAN

PERSON

Filing of a motion for leave of court to intervene, attaching


thereto a copy of the pleading in intervention, which is then
served on the original parties at any time before rendition of
judgment by the trial court.312
1.
The COURT MAY REFUSE TO GRANT
LEAVE WHEN
(a)

(b)

It will unduly delay or prejudice the


adjudication of the rights of the original
parties. Example: Delay or laches in
bringing intervention, OR
Intervenors rights may be fully protected
in a separate proceeding. Example:
Attachment of real property subject of a
mortgage

MAINTENANCE
CALENDAR

OF

THE

COURT

The clerk of court, under the direct supervision of a judge,


shall keep a calendar for PRE-TRIAL, TRIAL, TRIALS THAT
WERE ADJOURNED OR POSTPONED, THOSE WITH
MOTIONS TO SET FOR HEARING. In fixing the calendar,
PREFERENCE IS GIVEN TO HABEAS CORPUS,
ELECTION CASES, SPECIAL CIVIL ACTIONS, AND
THOSE REQUIRED BY LAW.316

ASSIGNMENT OF CASES

The assignment of cases shall always by raffle done in open


session of which adequate notice shall be given to afford
interested parties the opportunity to be present.317 The
purpose is to obviate public suspicion regarding assignment
of cases to predetermined judges.318

307

313

308

314

Supra, Section 5, Rule 30


IBAA vs. IAC, 167 SCRA 450
309
Supra, Section 1, Rule 19
310
Roxas v Dinglasan, 28 SCRA 430
311
Supra, Section 19, Rule 3
312
Supra, Section 2, Rule 19

Complaint in Intervention, if he asserts a


claim against either or all of the original
parties, OR
Answer in Intervention, if he unites with
the defending party in resisting the claim
of the plaintiff. 313

Supra, Section 3, Rule 19


Barangay Matictic v Elbinias, 148 SCRA 83
315
Foster-Gallego v Galang, 435 SCRA 275
316
Supra, Section 1, Rule 20
317
Supra, Section 2, Rule 20
318
Ang v Bello, 163 SCRA 358
33

RULE 21 SUBPOENA

WHAT IS A SUBPOENA

A process directed to a person requiring him to attend and


testify at the hearing or trial of an action, or at any
investigation conducted by competent authority, or the
taking of his deposition

KINDS OF SUBPOENA

The kinds of subpoena are:


(a)
SUBPOENA AD TESTIFICANDUM if it
directs and requires a person to attend
and testify, OR
(b)
DUCES TECUM if it requires him to bring
books/documents/or other things under
his control.319

BY WHOM ISSUED

A subpoena is issued by
(a)
The court before whom the witness is
required to attend
(b)
The court where deposition is to be taken
(c)
Officer or body authorized by law to do so
in connection with investigations that it
may conduct
(d)
Any justice of the Supreme Court/Court of
Appeals in any case or investigation
pending within the Philippines320

within 100 kilometers from where he resides, observing the


following steps:
(a)
Party desiring to take deposition shall give
reasonable notice in writing to every other
party in the action stating the TIME,
PLACE AND NAME/ADDRESS OF
PERSON WHOSE DEPOSITION IS TO
BE TAKEN. There should be proof of
service of the notice
(b)
Proof of service of notice to take
deposition shall be presented to the clerk
of court of the place where deposition is to
be taken
(c)
On the basis of such proof of service, the
clerk upon authority and under seal of the
court, shall issue the subpoena BUT a
subpoena duces tecum cannot be issued
without an order of the Court
(d)
Subpoena is to be served on witness
whose deposition is to be taken.325
2.
Witness is a detention prisoner, if no permission of
the court in which his case is pending is obtained or if the
witness is a prisoner sentenced to death, reclusion perpetua
or life imprisonment and is confined in a penal institution, if
authority of the SC to bring out the prisoner has not been
obtained. The court should examine and study the
application properly to determine if it is being made for a
valid purpose.326

A subpoena must contain the following:


(a)
(b)

1.
A request by a party for the issuance of a subpoena
does not require notice to other parties to the action.321
2.
In taking depositions, the clerk of court shall not
issue a subpoena duces tecum without a court order.322
3.
Absent any proceeding, suit or action, commenced
or pending before a court, a subpoena may not issue.323

1.1
If the viatory right is invoked, a witness can still be
compelled to testify by the taking of his deposition in a place

319

Supra, Section 1, Rule 21


Supra, Section 2, Rule 21
321
Adorio v Bersamin, 273 SCRA 217
322
Supra, Section 5, Rule 21
323
Collado v Bravo, 356 SCRA 411
324
Supra, Section 10, Rule 21
320

WHEN IS A WITNESS NOT BOUND BY A


SUBPOENA

1.
Witness resides more than 100 kilometers from his
residence to the place where he is to testify by the ordinary
course of travel.324 This is also called the VIATORY RIGHT
OF A WITNESS or the right not to be compelled to testify in
a civil case if he lives more than 100 kilometers from his
residence to the place where he is to testify by ordinary
course of travel.

FORM AND CONTENTS OF SUBPOENA

Name of the court


Title of action/investigation AND IS TO
BE DIRECTED to the person whose
attendance is required. IF DUCES
TECUM, in addition, it must contain a
reasonable description of the books,
documents, things demanded which is
must appear to the Court to be PRIMA
FACIE relevant.327

WHAT ARE THE GROUNDS TO QUASH A


SUBPOENA

1.
If DUCES TECUM, it may be quashed on the
following grounds:
(a)
It is unreasonable and oppressive
(b)
Relevancy of the books, documents or things do not
appear
(c)
Person in whose behalf subpoena is issued fails to
advance the reasonable costs of the production
thereof
(d)
The witness fees and kilometrage allowed by the
rules were not tendered when subpoena was
served. Under A.M. No. 04-2-04-SC, witness fees
shall be PHP 200.00 a day inclusive of all expenses
2.
If AD TESIFICANDUM, it may be quashed on
the following grounds:
325

Supra, Section 5, Rule 21


Supra, Section 2, Rule 21
327
Supra, Section 3, Rule 21
326

34

(a)
(b)

Witness is not bound by the subpoena


Witness fees and kilometrage allowed by rules were
not tendered when the subpoena was served.328

HOW IS A SUBPOENA SERVED

In the same manner as personal or substituted


service of summons, original is to be exhibited and delivered
to person on whom it is served tendering the fees for one
day attendance at the kilometrage allowed by Rules
EXCEPT if subpoena is issued by or on behalf of the
Republic of the Philippines or an officer or agency thereof.
Tender must be made so as to allow the witness a reasonable
time for preparation or travel to the place of attendance.329

Allowable period after interruption shall start to run on the


day after, notice of the cessation of the cause thereof. The
day of the act that caused cessation shall be excluded in the
computation of the period.
1.
RULE ON COMPUTATION OF TIME DOES NOT
APPLY
TO
PRESCRIPTION
OF OFFENSES or
PRESCRIPTION OF CAUSES OF ACTION. Hence, if the
last day falls on a Saturday, Sunday or legal holiday, it
prescribes on the said date.

1.
If DUCES TECUM, the cost of production of books,
papers or things must also be tendered.

RULES 23 TO 29 MODES OF
DISCOVERY

2.
Under A.M. No. 04-2-04-SC, the fee for service of
summons is PHP 100.00 per witness.

CAN A PERSON BE COMPELLED TO


APPEAR AND TESTIFY WITHOUT A
SUBPOENA

Yes, when he is PRESENT IN COURT, in which event it is as


if he were in attendance upon subpoena issued by the
Court.330

WHAT ARE THE CONSEQUENCES


DISOBEDIENCE TO A SUBPOENA

OF

The consequences of disobedience are:


(a) He may be arrested and brought before the Court
where his attendance is required, the cost of
warrant and seizure shall be paid by the witness if
the Court finds disobedience to be willful and
without just excuse. 331
(b) Citation in contempt by the court from which the
subpoena is issued. It not issued by a Court, then in
accordance with the applicable rule / law.332

RULE 22 COMPUTATION OF
TIME

HOW COMPUTED

The day of the act / event from which the designated period
of time begins to run is excluded and date of performance
included. If the last day falls on a Saturday, Sunday or legal
holiday in the place where the Court sits, the time shall not
run until the next working day.333

EFFECT OF INTERUPTIONS

WHAT IS DISCOVERY

The methods used by the parties to a civil action to obtain


information held by the other party that is relevant to the
action.

PURPOSES OF DISCOVERY

The purposes of resort to discovery are:


(a) It is a device to narrow down / clarify the basic
issues between the parties
(b) (b)It is a device to ascertain the facts relative to the
issues

WHAT ARE THE MODES OF DISCOVERY

The modes of discovery


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

Deposition pending action334


Deposition before action or pending appeal 335
Interrogatories to parties336
Request for admission by adverse party337
Production or inspection of documents / things338
Physical / mental examination of persons339

WHEN CAN DEPOSITIONS


ACTIONS BE TAKEN

PENDING

1.
WITH LEAVE OF COURT, after jurisdiction has
been acquired / obtained over any defendant or over
property which is the subject of the action as the issues are
not yet joined and disputed facts are not yet clear OR if a
person is confined in a prison with LEAVE OF COURT
ONLY, on such terms that the Court may prescribe.
2.
WITHOUT LEAVE OF COURT, after an answer
has been served.340

334
328

Supra, Section 4, Rule 21


329
Supra, Section 6, Rule 21
330
Supra, Section 7, Rule 21
331
Supra, Section 8, Rule 21
332
Supra, Section 9, Rule 21
333
Supra, Section 1, Rule 22

Supra, Rule 23
Supra, Rule 24
336
Supra, Rule 25
337
Supra, Rule 26
338
Supra, Rule 27
339
Supra, Rule 28
340
Supra, Section 1, Rule 23
335

35

WHOSE DEPOSITION MAY BE TAKEN,


HOW TAKEN, BY WHOM

requirement to pay costs/expenses as the Court may deem


reasonable.343

Any person, whether a party or not, upon ORAL


EXAMINATION OR WRITTEN INTERROGATORIES upon
the initiative of ANY PARTY.

SCOPE OF A DEPOSITION

GENERALLY, the deponent may be examined regarding any


matter, NOT PRIVILEGED, which is RELEVANT TO THE
SUBJECT OF THE PENDING ACTION whether it RELATES
TO CLAIM OR DEFENSE of any other party. INCLUDING
THE EXISTENCE, DESCRIPTION, NATURE, CUSTODY,
CONDITION, LOCATION of any BOOKS, DOCUMENTS OR
OTHER TANGIBLE THINGS and the IDENTITY and
LOCATION of persons having knowledge of relevant facts.341
1.
The limitation as to the taking and scope of a
deposition after notice is served for its taking by oral
examination, UPON MOTION SEASONABLY FILED by a
PARTY OR of the PERSON to be examined, and for GOOD
CAUSE shown, the court in which the action is pending may
order:
(a) Deposition not be taken
(b) It be taken only at some designated place other
than that stated in the notice
(c) It be taken only on written interrogatories
(d) That certain matters shall not be inquired into
(e) That scope of the examination shall be held without
anyone present except the parties to the action, and
their officers of counsel
(f) That after depositions are sealed, they shall be
opened only by order of the court
(g) That secret processes, developments or research
need not be disclosed
(h) That parties shall simultaneously file specified
documents or information enclosed in sealed
envelopes to be opened as directed by the Court
(i) That court may make any order which justice
requires to protect the party or witnesses from
annoyance embarrassment or oppression.342
2.
During the taking of the deposition, it shall be
taken subject to the following limitations:
2.1
During the taking of the deposition, on motion or
petition of any party or the deponent upon showing that the
examination is being conducted in BAD FAITH on IN SUCH
MANNER as UNREASONABLY to ANNOY EMBARRASS
OR OPPRESS the DEPONENT, or a party the COURT
where the action is pending or the RTC of the place where
deposition is being taken may ORDER the officer taking the
examination to cease forthwith or limit the scope as
provided in Section 16.
2.2
If terminated, it shall be resumed thereafter only
upon order of the Court in which the action is pending.
UPON DEMAND of the OBJECTING PARTY/DEPONENT,
the taking shall be suspended for the time necessary to make
a notice for an order. In granting/refusing such order, the
court may impose upon either party or upon the witness the

BEFORE WHOM MAY DEPOSITIONS BE


TAKEN

1.
WITHIN THE PHILIPPINES: a judge, notary
public, or person authorized to administer oaths, at any time
or place if so stipulated in writing by the parties.344
2.
IN FOREIGN COUNTRIES: On notice before a
secretary of the embassy or legation or the diplomatic
minister and his staff, consul general, consul, vice consul or
consular agent of the Republic of the Philippines, or before
such person or officer as may be appointed by commission
or letters rogatory.345
2.1
A Commission is an instrument issued by a court of
justice or other competent tribunal to authorize persons to
take a deposition or do any other act by authority of such
court or tribunal. A Commission is addressed to officers
designated by name or descriptive title.
2.2
Letters Rogatory is an instrument sent in the name
and by authority of a judge or court to another, requesting
the latter to cause to be examined, upon interrogatories filed
in a case pending before the former, a witness who is within
the jurisdiction of the judge or court to whom such letters
are addressed. Letters Rogatory are addressed to a judicial
authority in a foreign country AND may be applied for and
issued only after a commission has been returned
unexecuted.

WHO ARE DISQUALIFIED


DEPOSITIONS

TO

TAKE

Person who is a relative within the 6th degree of


consanguinity / affinity OR employee or counsel of any of
the parties OR relative within the same degree or employee
of counsel OR is financially interested in the action.346

A.

KINDS OF DEPOSITIONS HOW TAKEN


DEPOSITION UPON ORAL EXAMINATION

1.
Giving of reasonable notice in writing to every
other party to the action, which must state the time / place
of the taking of the deposition and the name and address of
the person to be examined, if known, IF NOT KNOWN, a
general description sufficient to identify him or the
particular class or group to which he belongs. ON MOTION
OF PARTY UPON WHOM NOTICE IS SERVED, the
COURT, for CAUSE, may ENLARGE OR SHORTEN THE
TIME.347
2.
Officer taking the deposition shall put the witness
under oath and shall personally, or by someone acting under
his direction and his presence record the testimony of the
witness stenographically unless the parties agree otherwise.

343

Supra, Section 18, Rule 23


Supra, Sections 10 and 14, Rule 23
345
Supra, Sections 11, 12, and 14, Rule 23
346
Supra, Section 13, Rule 23
347
Supra, Section 15, Rule 23
344

341
342

Supra, Section 2, Rule 23


Supra, Section 16, Rule 23

36

All objections as to QUALIFICATION OR OFFICER


TAKING DEPOSITION, MANNER OF TAKING EVIDENCE
PRESENTED, CONDUCT OF PARTIES OR ANY OTHER
OBJECTION shall be NOTED ANY EVIDENCE
OBJECTED TO SHALL BE TAKEN SUBJECT TO
OBJECTIONS. PARTIES SERVED WITH NOTICE, IN LIEU
OF PARTICIPATING IN THE TAKING OF DEPOSITION,
may submit written interrogatories which the officer
taking the deposition shall propound to the witness and
record the answers VERBATIM.348

attendance plus attorneys fees to a party who appears in


person or by counsel354 (Section 24)
B.
DEPOSITION
INTERROGATORIES

4.
Once signed, the officer shall certify on the
deposition that the witness was duly sworn to by him and
that the deposition is a true record of the testimony of the
witness. He shall then securely seal the deposition in an
envelope endorsed with the title of the action and marked
deposition of _______ to be promptly FILED WITH THE
COURT WHERE ACTION IS PENDING OR SENT BY
REGISTERED MAIL TO THE CLERK THEREOF FOR
FILING.350
5.
Notice of filing shall then promptly be given by the
officer to all parties351 and upon payment of reasonable
charges, he is to furnish copies of the deposition to any party
or the deponent. 352

(1) name and address of the person who will


answer them
(2) descriptive title and address of the person
who will take the deposition
(3) Within 10 days, party served may serve
cross-interrogatories
on
the
party
proposing to take the deposition
(4) Within 5 days thereafter, the latter may
serve re-direct INTERROGATORIES upon
the party serving crossinterrogatories
(5) within 3 days after being served of redirect INTERROGATORIES, a party may
serve re-cross interrogatories upon party
proposing to take deposition.355
2.
A copy of the notice and copies of all
interrogatories shall be delivered by the party taking the
deposition to officer designated in the notice, who shall
proceed promptly in the manner provided by Sections 17, 19
and 20 to take the testimony of the witness in response to
the interrogatories and to prepare, certify, and file / mail the
deposition attaching copies of the notice and
interrogatories.356
3.
Officer must promptly give notice of filing / and
may furnish copies to parties and deponent upon payment
of reasonable charges.357
NOTE: that Sections 15, 16 and 18 are applicable and that by
motion, it can be asked that the deposition be upon oral
examination.
4.
SEE: Gerochi vs. Dept of Energy GR 159796, April
5, 2005

DISTINGUISHED FROM
INTERROGATORIES TO PARTIES UNDER
RULE 25

EFFECT OF NON-APPEARANCE

1.
IF PARTY GIVING NOTICE FAILS TO APPEAR
AND ANOTHER ATTENDS IN PERSON OR BY COUNSEL,
the Court may order the party giving notice to pay
reasonable expenses incurred to attend, including
reasonable attorneys fees. 353
2.
IF PARTY GIVING NOTICE DOES NOT SERVE
SUBPOENA AND WITNESS DOES NOT APPEAR, Court
can order party giving notice to pay reasonable expenses for

WRITTEN

1.
Party desiring to take the deposition upon
WRITTEN INTERROGATORIES shall serve them upon
every other party with notice stating:

3.
After the taking of the deposition and testimony
is transcribed it is submitted to the witness for
examination and shall be read to or by him, unless such is
waived by the witness and the parties. IF THERE ARE
CHANGES IN FORM / SUBSTANCE which the witness
desires to make it shall be entered upon the deposition by
the officer with a statement as to the reason given by the
witness as why they are being made. The deposition is then
SIGNED BY THE WITNESS, unless the parties by
stipulation waive the signing, or the witness is ill OR cannot
be found OR refuses to sign.
IF NOT SIGNED, officer shall sign it and state on the
record why it was not signed together with reasons. If there
is refusal to sign, the EFFECT is that the deposition then
may be used fully as though signed, unless on a motion to
suppress under Sec 29 (f) {errors or irregularities in
preparation}, the Court holds that the reason for refusal to
sign require rejection of the deposition in whole or in
part.349

UPON

An interrogatory under Rule 25 is allowed UNDER THE


SAME CONDITIONS AS SPECIFIED IN SECTION 1, RULE
23 as to when it is to be had and is for the purpose of
enabling any party desiring to elicit material facts / relevant
facts from any ADVERSE PARTY by the filing and service
upon the latter of a written interrogatory to be answered by
the party served or if party is public / private corporation or
a partnership / association by any officer thereof competent
to testify in its behalf.358

348

Supra, Section 17, Rule 23


Supra, Section 19, Rule 23
350
Supra, Section 20, Rule 23
351
Supra, Section 21, Rule 23
352
Supra, Section 22, Rule 23
353
Supra, Section 23, Rule 23
349

354

Supra, Section 24, Rule 23


Supra, Section 25, Rule 23
356
Supra, Section 26, Rule 23
357
Supra, Section 27, Rule 23
358
Supra, Section 1, Rule 25
355

37

HOW AND WHEN ANSWERED

Responses, which must be signed and sworn to, must be


filed within 15 days from service, unless the Court on motion
and for good cause shown extends or shortens the time 359

CAN THEY BE OBJECTED TO

Yes, objections may be presented to the court within 10 day


after service of notice as in the case of a motion, answers
shall then be deferred until objections are resolved, which
shall be as early a time as is practicable.360

By the filing of a verified petition by a person desiring to


perpetuate his testimony or that of any person in relation to
any matter cognizable in any court in the Philippines in the
Court in the place of residence of the expected adverse
party. 364
1.
The CONTENTS OF THE PETITION which
shall be entitled in the name of the petitioner and should
show:
(a) That petitioner expects to be a party to an action in
a Court in the Philippines but is presently unable to
bring it or cause it to be brought
(b) The subject matter of the expected action and his
interest therein
(c) The facts that he desires to establish by the
proposed testimony and his reasons for desiring to
perpetuate it
(d) The names or description of the person he expects
will be adverse parties and their addresses so far as
known
(e) The names and addresses of the persons to be
examined and the substance of the testimony which
he expects to elicit from each AND SHALL THEN
ASK FOR AN ORDER authorizing the petitioner to
take the depositions of the persons to be examined
named in the petition for the purpose of
perpetuating their testimony.365

HOW MANY INTERROGATORIES

No party may, without leave of court, serve more than one


set of interrogatories to be answered by the same party.361

SCOPE AND USE

It may relate to any matters that can be inquired into under


Section 2, Rule 23 and the answers used for the same
purpose provided for by Section 4, Rule 23362

EFFECT OF FAILURE TO SERVE WRITTEN


INTERROGATORIES

Unless thereafter allowed by the court for good cause shown


and to prevent failure of justice, a party not served with
written interrogatories may not be compelled by the adverse
party to give testimony in open court or give a deposition
pending appeal.363

FURTHER DISTINGUISHING DEPOSITION


UPON WRITTEN INTERROGATORIES AND
WRITTEN INTERROGATORIES

1.
Any person, party or not can be required to or
compelled to give a deposition upon written interrogatories,
while only the adverse party may be compelled to
answer a written interrogatory.
2.
A deposition upon written interrogatory is taken
before an officer, while an adverse party without appearing
before an officer shall answer them in writing and under
oath.
C.
DEPOSITIONS
BEFORE
ACTION
PENDING APPEAL UNDER RULE 24
PERPETUAM REI MEMORIAM)

OR
(IN

2.
To Perpetuate means to preserve or make available
testimony for later use at a trial by means of deposition.

WHAT IS DONE AFTER PETITION IS


COMPLETED

Petitioner shall serve a notice upon each person named in


the petition as an expected adverse party, together with a
copy of the petition stating that: he will apply to the Court at
a time and place stated therein, for the order described in
the petition. At least 20 days before the date of the hearing,
the Court shall cause notice thereof to be served on the
parties and prospective deponents in the manner provided
for service of summons.366

WHAT WILL OCCUR THEREAFTER

If the Court is satisfied that the perpetuation of testimony


may prevent a failure of justice or delay of justice, it shall
make an order designating or describing the persons whose
depositions are to be taken, specifying the subject and
whether it will be upon oral execution or written
interrogatories under Rule 23.367For purposes of applying
Rule 23, references to the court in which the action is
pending shall be deemed to refer to thecourt in which
petition for such deposition is filed. 368

359

364

360

365

Supra, Section 2, Rule 25


Supra, Section 3, Rule 25
361
Supra, Section 4, Rule 25
362
Supra, Section 5, Rule 25
363
Supra, Section 6, Rule 25

HOW IS A DEPOSITION BEFORE ACTION


OBTAINED

Supra, Section 1, Rule 24


Supra, Section 2, Rule 24
366
Supra, Section 3, Rule 24
367
Supra, Section 4, Rule 24
368
Supra, Section 5, Rule 24
38

USE OF DEPOSITION

Deposition taken under the Rule or although not so taken, it


would be admissible in evidence, it may be used in any
action involving the same subject matter contained in
petition subsequently brought in accordance with Sections 4
and 5 of Rule 23.369

a.
May be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a
witness
b.
Deposition of a party or any one who at the time of
the taking was an officer, director, or managing agent of a
public/private corporation partnership/association which is
a party may be used by an adverse party for any purpose

WHEN DEPOSITIONS PENDING APPEAL


ARE TAKEN

c.
Deposition of a witness, party or not, may be used
by any party for any purpose if the court finds that:

If appeal is taken from a judgment of a Court including the


CA in proper cases or before the taking of an appeal if the
time therefore has not yet expired. The Court in which
judgment was rendered may allow taking of depositions of
witnesses to perpetuate their testimony for use in the event
of further proceedings in the said Court.

(1) witness is dead


(2) witness resides more than 100 kilometers from the
place of trial/hearing or is out of the Philippines
UNLESS, it appears that his absence is procured
by the party offering the deposition
(3) witness is unable to attend/testify because of age,
sickness, infirmity or imprisonment
(4) party offering the deposition has been unable to
procure the attendance of the witness by subpoena
(5) upon application and notice, exceptional
circumstances exist as to make it desirable in the
interest of justice and with due regard to the
importance of presenting the testimony of witness
in open court, to allow the deposition to be used.

HOW TAKEN

Party makes a motion in said Court for leave to take


depositions upon the said notice and service thereof as if
the action was pending therein MOTION states
(1) name and addresses of persons to be examined and
substance of testimony to be elicited
(2) reasons for perpetuating testimony.
If Court finds that it is proper to avoid failure or delay of
justice it may allow the depositions to be taken and used in
the same manner and under same conditions as prescribed
for depositions in pending actions.370

EFFECT OF TAKING DEPOSITIONS

A party shall not be deemed to make a person his own


witness by taking his deposition.371

EFFECT OF USING DEPOSITIONS

If introduced in evidence in whole/part for any purpose


OTHER THAN contradicting or impeaching the deponent,
such
makes the deponent the witness of the party
introducing the deposition BUT it does not apply to the use
of an adverse party of a deposition as described in Par. (b)
Section 4 of Rule 23.372

USE OF DEPOSITION

When can it be used? at the trial, upon the hearing of a


motion or an interlocutory proceeding ANY PART or
ALL OF A DEPOSITION, so far as admissible under the
rules of evidence may be used AGAINST any party who was
present, or represented at the taking or had due notice
thereof, in ACCORDANCE WITH THE FOLLOWING:

369

Supra, Section 6, Rule 24


Supra, Section 7, Rule 24
371
Supra, Section 7, Rule 23
372
Supra, Section 8, Rule 23
370

d.
If only a part of the deposition is offered in
evidence by a party, the adverse party may require him to
introduce all of which is relevant to the part introduced, and
any party may introduce the other parts.373

WHEN DOES THE DEPOSITION BECOME


EVIDENCE OR WHEN CAN IT BE USED AS
EVIDENCE

1.
If the deponent is a party, the opposing party can
use it to prove his claim or defense. It may also be used to
impeach or contradict the party deponent if he testifies.
2.
If the deponent is only a witness, his deposition can
only be used to impeach/contradict him if he testifies BUT if
Paragraph (c ) of Section 4 applies, it can be used for any
purpose.

WHEN DEPOSITIONS ARE PRESENTED


CAN THEY BE OBJECTED TO- WHEN

Subject to the provisions of Section 29, OBJECTION may be


made at the TRIAL or HEARING to receive in evidence any
deposition or part thereof for any reason which would
require the exclusion of the evidence if the witness were then
present and testifying.
1.
As to notice are waived unless written objection
is promptly served upon the party giving the notice
2.
As to disqualification of the officer is waived
unless make before the taking of the deposition or as soon
thereafter as the disqualification becomes known or could be
discovered with reasonable diligence.
3.
As to competency relevancy of evidence
objections as to competency of the witness or competence,
relevancy or materiality of the evidence/testimony are not
373

Supra, Section 4, Rule 23


39

waived by the failure to make them before or during the


taking of the deposition UNLESS the ground of the
objection is one which a right have been OBVIATED or
REMOVED IF PRESENTED AT THAT TIME
4.
As to oral examination and other
particulars Errors and irregularities occurring at the oral
examination in the manner of taking, the form of the
questions and answers, in the oath/affirmation, or the
conduct of the parties and errors of any kind which might be
obviated, removed or cured it promptly, prosecuted, are
WAIVED, unless reasonable objection thereto is made at the
taking of the deposition.
5.
As to from of written interrogatories
objections are waived unless served in writing upon party
propounding them within the time allowed for the serving of
succeeding cross or other interrogatories and within 3 days
after service of the last interrogatory authorized.
6.
As to manner of preparation objections as to
the manner in which the testimony is transcribed, or the
deposition is prepared, signed certified, sealed, indorsed,
transmitted, filed, or otherwise dealt with by the officer are
WAIVED, unless a motion to suppress the deposition or part
thereof is made with reasonable promptness after such
defect is, or with due diligence, might have been
ascertained.374

HOW IS A DEPOSITION ACTUALLY USED


AND ONCE A DEPOSITION HAS BEEN
USED, WHAT CAN ADVERSE/ OTHER
PARTIES DO

1.
Generally, the deponent is called to testify. Hence
he may be examined/cross-examined as permitted at the
trial under Sections 3 to 18, Rule 132.375
2.
At the trial or hearing, any party may rebut any
relevant evidence contained in a deposition whether
introduced by him or by any other party.376 This is called
rebutting a deposition.

IS USE OF THE DEPOSITION LIMITED TO


THE ACTION/PENDING ACTION WHEN IT
WAS TAKEN

No, because substitution of parties does not affect the right


to use depositions previously taken, when the action is
DISMISSED and another action involving the same subject
is afterward brought between the same parties or their
representatives or successors in interest, all depositions
lawfully taken and duly filed in the former action may be
used in the latter as if originally taken therefor.377

RULE 26 REQUESTS FOR


ADMISSIONS

WHAT IS A REQUEST FOR ADMISSION

It is a written request for the


(1) admission of the genuiness of any material and
relevant document described in and exhibited with
the request or
(2) the truth of any material or relevant matter of fact
set forth in the request. A party may file and serve a
request for admission upon any other party at any
time after the issues have been joined.378

EFFECT OF FILING AND SERVICE UPON


ANY OTHER PARTY

Each of the matters of which an admission is requested shall


be deemed admitted UNLESS, within a period designated
in the request, which shall not be less than 15 days after
service thereof or such period which the Court will allow on
motion, the party served files and serves upon the
requesting party a sworn statement, either denying
specifically the matters is setting forth in detail the reason
why he cannot truthfully either admit / deny.
Objections if any shall be submitted to the Court within the
period for complying and prior to filing of the Sworn
Statement compliance is then deferred until objections are
resolved which should be done as early as practicable.379

EFFECT OF ADMISSIONS

It is for the purpose of the pending action only and


shall not constitute an admission by him for any purpose or
used against him in any other proceeding380
THOUGH any admission, express or implied may be allowed
by the court to be withdrawn or amended upon such terms
as may be just.381

EFFECT OF FAILURE TO SERVE

Unless otherwise allowed by the Court for good cause and to


prevent failure of justice, a party who fails to serve a request
for admission of material / relevant facts at issue on the
adverse party, which are or ought to be within the latters
personal knowledge, shall not be permitted to present
evidence on such facts.382

378
374

Supra, Section 29, Rule 23


375
Supra, Section 3, Rule 23
376
Supra, Section 9, Rule 23
377
Supra, Section 5, Rule 23

Supra, Section 1, Rule 26


Supra, Section 2, Rule 26
380
Supra, Section 3, Rule 26
381
Supra, Section 4, Rule 26
382
Supra, Section 5, Rule 26
379

40

RULE 27 PRODUCTION OR
INSPECTION OF DOCUMENTS ON
THINGS

HOW

On motion of any party showing GOOD CAUSE, the COURT


where the action is pending MAY ORDER, specifying the
time, place and manner AND prescribing such terms and
conditions as are just:
1.
Any party to produce and permit the inspection,
copying, photographing, by or on behalf of a having party of
any
designated
DOCUMENT,
PAPERS,
BOOKS,
ACCOUNTS, LETTERS, PHOTOGRAPHS, OBJECTS OR
TANGIBLE THINGS NOT PRIVILEGED which
CONSTITUTE OR CONTAIN EVIDENCE MATERIAL TO
ANY MATTER INVOLVED IN THE ACTION which are in
his possession and control, OR
2.
Permit entry upon designated land or other
property in his possession / control for the purpose of
INSPECTING, MEASURING, SURVEYING, TAKING
PHOTOGRAPHS of the property or any designated
RELEVANT OBJECT or OPERATION thereon.383
RESORTED TO DETERMINE CONTENTS, STATUS OR
PRESERVATION OF THE SAME.

RULE 28 PHYSICAL / MENTAL


EXAMINATION OF PERSONS

WHEN AVAILED OF

In an action in which the MENTAL / PHYSICAL condition


of a party is in controversy, a court in its discretion, can
order him to submit to physical / mental examination by a
physician.384
1.
It can be ordered ONLY upon motion for good
cause shown, with NOTICE to the party to be examined and
to all other parties, specifying the time, place, manner,
condition and scope of the examination and person/s by
whom it is to be made.385
2.
ONCE EXAMINATION IS COMPLETED, the
party examined may request that a detailed written report of
the examining physician setting forth his findings /
conclusions.
2.1
If requested and delivered,
examination to be made is entitled to
from examined party a like report of
physical examination / condition
THEREAFTER MADE.

the party causing


request and receive
the same mental /
PREVIOUSLY OR

the physician fails / refuses to make such report, his


testimony may be excluded if his testimony is offered at
trial. 386
2.3
NOTE a WAIVER OF PRIVILEGE that is
caused by requesting and obtaining a report of the
examination ordered or by taking the deposition of the
examiner, party examined WAIVES ANY PRIVILEGE he
may have in that action or any other involving the same
controversy regarding the testimony of every other person
who has examined or may thereafter examine him in respect
of the same mental / physical examination.387 This refers
primarily to the privilege between doctor and patient.

RULE 29 REFUSAL TO COMPLY


WITH MODES OF DISCOVERY
1.
If he refuses to answer upon being directed to do so
or refuses to be sworn, it will constitute CONTEMPT OF
COURT. A citation in contempt shall ensue after the
following steps have been followed or observed:
a.
If the party/deponent refuses to answer any
question upon oral examination, the deposition may be
completed on other matters or adjourned as the proponent
may prefer.
b.
The proponent may then apply for an order to
compel an answer in the proper court where the deposition
is being taken. This is also applicable to interrogatories.
c.
If granted, the court can order that answer be made
and if it finds that refusal is without substantial justification
it may impose upon deponent / counsel advising that no
answer be given or both reasonable expenses and
attorneys fees in obtaining the order. If denied and the
court finds application was filed without substantial
justification proponent / counsel advising application or
both may in the same manner be sanctioned.388
2.
Other consequences (applicable to Sec 1, Rule 29,
Rule 27 and Rule 28) the Court may issue an:
a.
order that the matters regarding which the
questions are asked, character / description of thing or land
/ contents of a paper or physical / mental condition of a
party shall be taken to be established in accordance with the
claim of the party obtaining the order.
b.
order refusing to allow the disobedient party to
support / oppose designated claims / defenses or
prohibiting him from introducing in evidence the designated
things / documents or items of testimony or from
introducing evidence of physical / mental condition.
c.
order striking out pleadings or parts thereof or
staying proceedings until the order is obeyed, dismissing the
action or proceeding or any part thereof, or rendering
judgment by default against the disobedient party.

2.2
If request is refused, the court on motion may order
delivery by the party examined on such terms as are just. If
383

386

384

387

Supra, Section 1, Rule 27


Supra, Section 1, Rule 28
385
Supra, Section 2, Rule 28

Supra, Section 3, Rule 28


Supra, Section 4, Rule 28
388
Supra, Sections 1 and 2, Rule 29
41

d.
In lieu or in addition to orders, the disobedient
party can be ordered arrested except in relation to a physical
/ mental examination.389

OTHER SANCTIONS

1.
Expenses on refusal to admit if requested party
serves a sworn denial and party serving request proves
genuineness / truth, he may apply for an order directing the
requested party to pay expenses incurred in making proof
plus attorneys fees. Order is issued except if court finds
good reasons for denial or admissions were of no substantial
importance. 390
2.
Failure of a party to willfully appear before the
officer taking the deposition, after being served with a
proper notice, or fails to serve answers to written
interrogatories properly served, court may on motion and
notice:
(a) Strike out all or any part of the pleading of that
party
(b) Dismiss the action / proceeding / part thereof
(c) Enter judgment by default against that party,and
(d) in its discretion, order payment of reasonable
expenses and attorneys fees391
BUT no expenses or fees are to be assessed against the
Republic of the Philippines. 392

RULE 30 TRIAL

NOTICE OF TRIAL

Upon entry of a case in the trial calendar the clerk shall


notify the parties of the date of the trial in such manner as to
ensure receipt of the notice at least 5 days before such
date.393

MAY
TRIAL
ADJOURNED

BE

POSTPONED

Courts may adjourn a trial from day to day, and to any


stated time as the expeditious and convenient transaction
of business may require but it shall have no power to
adjourn for a longer period than one month for each
adjournment, nor more than three months in all, except
when authorized in writing by the Court Administrator of
the Supreme Court.394

to be given in evidence, or even if he objects or reserves the


right to object to their admissibility, the trial shall not be
postponed.395

IF MOTION TO POSTPONE IS DUE TO


ABSENCE OF EVIDENCE

Can only be granted upon affidavit showing the materiality /


relevancy of the evidence and that due diligence has been
used to procure it, BUT, if the adverse party admits the facts

IF DUE TO
COUNSEL

ILLNESS

OF

PARTY

OR

May be granted, if it appears upon affidavit or sworn


certification that the presence of party / counsel at the trial
is indispensable and that character of illness is such as to
render non-appearance excusable.396

WHAT IS THE ORDER OF TRIAL

Subject to Section 2, Rule 31 on separate trials and


unless the court orders for special reasons, it shall be limited
to the issues stated in the pre-trial order and shall proceed
as follows:
1. Plaintiff adduces evidence in support of his
complaint
2. Defendant adduces evidence in support of his
defense, counterclaim, crossclaim and 3rd party
complaint
3. Third party defendant, if any, shall adduce
evidence of his defense, counterclaim, crossclaim
and 4th party complaint.
4. Fourth party, and so forth, if any, shall adduce
evidence of the material facts pleaded by them.
5. Parties against whom any counterclaim/crossclaim
has been pleaded shall adduce evidence in support
of their defense, in the order prescribed by the
Court.
6. The parties may then respectively adduce rebutting
evidence, unless the Court, for good reasons and in
the furtherance of justice, permits them to adduce
evidence upon their original case.
7. Upon admission of the evidence, the case shall be
deemed submitted for decision, unless the court
directs the parties to argue or submit memoranda
or any further pleadings.
If several defendants or 3rd party defendants and so forth,
having separate defenses appear by different counsel, the
court shall determine the relative order of presentation of
their evidence.397
MAY THERE BE AN AGREEMENT UPON THE
FACTS AND SUBMISSION OF THE CASE FOR
JUDGMENT
WITHOUT
INTRODUCTION
OF
EVIDENCE
Yes, provided it be in writing. If the parties agree only on
some facts, trial shall be held as to the disputed facts398 BUT,
no judgment based on stipulation of facts is allowed in legal
separation, annulment of marriage and declaration of
nullity. NOTE: that in the same cases, neither is there
judgment by default, judgment on the pleadings, summary
judgment, judgment upon confession, judgment upon
compromise, judgment based on stipulation of facts.

389

Supra, Section 3, Rule 29


Supra, Section 4, Rule 29
391
Supra, Section 5, Rule 29
392
Supra, Section 6, Rule 29
393
Supra, Section 1, Rule 30
394
Supra, Section 2, Rule 30
390

395

Supra, Section 3, Rule 30


Supra, Section 4, Rule 30
397
Supra, Section 5, Rule 30
398
Supra, Section 6, Rule 30
396

42

WHAT ARE TO BE MADE OF RECORD

All proceedings, including any statement made by the judge


with reference to the case, or to any of the parties, witnesses
or counsel shall be made of record in the stenographic
notes.399

WHO IS TO RECEIVE EVIDENCE

The judge is required to personally receive the evidence. But


in default / ex-parte or when parties agree in writing it may
be delegated to the clerk of court who is member of the bar
though he has no power to resolve objections to any
question or admission of exhibits . Such shall be resolved by
the court upon submission of his report and transcripts
within 10 days from termination of the hearing.400

CAN ACTIONS BE SUSPENDED

WHEN
CAN
PLACE?

CONSOLIDATION

1.
NOTE though that if actions involve a common
question of law or fact because they arise from a single cause
of action between the same parties, the remedy is dismissal
on litis pendentia, not consolidation.

RULE 32 TRIAL BY
COMMISSIONER

Yes, involving the consolidation of civil action WITH


criminal action, if filed before criminal action and trial has
not yet commenced.404

(a) Parties agree in writing and the commissioner may


either be agreed upon or appointed by the Court
(b) When parties do not consent, on courts own
motion or upon application of either party, if may
be directed in the following:
(1)
Trial of an issue of fact requires
examination of a long account
(2)
The taking of an account is necessary for
the information of the court before judgment or for
carrying judgment / or order into effect
(3)
A question of fact, other than upon the
pleadings arises upon motion or otherwise, in any
stage of the case, or for carrying a judgment or
order into effect.406
1.
The term commissioner may include a referee, an
auditor or examiner407
2.
A commissioner is designated or authorized by an
ORDER OF REFERENCE which will specify or limit his
powers, direct him to report only on or upon particular
issues or do or perform particular acts, receive or report
evidence only and fix date for beginning / closing hearings
and for the filing of the report.
2.1

399

Supra, Section 7, Rule 30


Supra, Section 9, Rule 30
401
Supra, Section 8, Rule 30
402
Civil Code, Article 2030
403
Supra, Section 1, Rule 31
404
Section 1, Rule 111 of the Rules on Criminal Procedure

WHEN RESORTED TO

Trial by commissioners may be resorted to upon order of the


court, which will then refer any or all issues when:

TAKE

MAY
THERE
BE
CONSOLIDATION
ALTHOUGH ACTIONS ARE PENDING IN
DIFFERENT COURTS

WHEN CAN SEPARATION TAKE PLACE


AND WHAT DOES IT COVER

Covers any claim, cross-claim, counterclaim or third party


claim or any separate issue or of any number of claims,
cross-claims, counter claims, third party complaints, or
issues in furtherance of convenience or to avoid prejudice.405

When actions involving a common question of law or fact


are pending before the court, it may order joint hearing or
trial of any or all the matters in issue in the actions, it may
order all actions consolidated. Then it may make such orders
concerning proceedings therein as may tend to avoid
unnecessary costs / delay403

ALLOWING

The purpose of allowing consolidation is to avoid


multiplicity of suits, guard against oppression or abuse,
prevent delay, clearing of dockets, simplify the work of trial
court, save unnecessary expenses / costs.

Actions may be suspended as governed by the provisions of


the Civil Code401:
(a) if willingness to discuss a compromise is expressed
by one or both parties
(b) if it appears that one of the parties, before the
commencement of an action / proceeding, offered
to discuss a possible compromise but the other
party refused the offer.402

RULE 31 CONSOLIDATION OR
SEVERANCE

PURPOSE
OF
CONSOLIDATION

400

He shall then have and exercise the power to:


(a) Regulate the proceeding before him
(b) Do all acts and take all measures necessary or
proper for the efficient performance of his duties
upon the order
(c) Issue subpoenas

405

Supra, Section 2, Rule 31


Supra, Section 1, Rule 32
407
Supra, Section 2, Rule 32
406

43

(d) Swear witnesses


(e) Unless otherwise provided,
admissibility of evidence408

rule

upon

the

3.
THE TRIAL / HEARING SHALL PROCEED
IN ALL RESPECTS AS IT WOULD BE HELD IN
COURT.

9.
If the parties stipulate that the commissioners
findings of facts shall be final, only questions of law shall be
thereafter considered. 417
9.1
Note that the findings of the commissioner are
merely advisory and are not absolutely binding upon the
court.418

PROCEDURE

1.
Commissioner takes oath and be sworn to a faithful
and honest performance of his duties409
2.
Upon receipt of the Order of Reference, and unless
otherwise stipulated he shall forthwith set a time and place
for the first meeting of the parties and counsel within 10
days after the date of the order of reference, and shall notify
parties / counsel410
3.
If parties / counsel fail to appear, he may proceed
ex-parte or in his discretion, adjourn the proceedings, giving
notice to the absent party or counsel of the adjournment411
4.
He shall avoid delay as he is duty bound to proceed
with all reasonable diligence. Either party on notice to other
parties and the commissioner may apply for a court order to
expedite proceedings / report412

They shall be reasonable as warranted by the circumstances


and are to be taxed as costs against the defeated party or
apportioned as justice requires419

7.
Notice is then given by the clerk to the parties of
the filing of the report, they shall then be allowed 10 days
within which to signify objections to the findings in the
report, is so desired.
7.1
NOTE: Objections to the report based on grounds
available to the parties during the proceedings before the
commissioner, other than as to the findings / conclusions,
shall not be considered unless made before the
commissioner.415
8.
Upon expiration of the period, the report shall be
set for hearing, after which the court shall issue an order
adopting, modifying, or rejecting the report in whole or in
part or recommitting it with instructions or requiring the
parties to present further evidence to the commissioner416

WHEN REFERENCE TO COMMISSIONERS


IS REQUIRED BY THE RULES

Reference to commissioners is required in the following


cases:
(a) Expropriation under Rule 67 to determine just
compensation
(b) Partition under Rule 69, when parties cannot agree
as to the manner of partition.

5.
If witness refuses to obey a subpoena or give
evidence. It shall constitute contempt of the appointing
court 413
6.
Upon completion of trial / hearing / proceeding
he shall file with the court has report in writing upon the
matters submitted to him by the order of reference. When
powers are not specified or limited, he shall set forth his
findings of fact and conclusions of law in his report. He shall
also attach all exhibits, affidavits, depositions, paper and
transcripts of the testimonial evidence given414

EXPENSES / COMPENSATION

RULE 33 DEMURRER TO THE


EVIDENCE

WHO FILES AND WHEN FILED

The defendant is the party who may move for the dismissal
of the action after presentation by the plaintiff of evidence
ON THE GROUND that upon the facts and the law,
plaintiff has shown no right to relief.420

EFFECTS OF FILING AND RESOLUTION

1.
If granted, the action is dismissed, BUT if appealed
and reversed, he loses his right to prevent evidence and
judgment is rendered in favor of the plaintiff421
1.1
An order dismissing a case for insufficiency of
evidence is a judgment on the merits, it is imperative that it
be a reasoned decision and distinctly stating therein the
facts and the law on which it is based.422
2.
If denied, defendant may present his evidence as it
does not constitute a waiver of right to do so.

408

Supra, Section 3, Rule 32


Supra, Section 4, Rule 32
410
Supra, Section 5, Rule 32
411
Supra, Section 6, Rule 32
412
Supra, Section 8, Rule 32
413
Supra, Section 7, Rule 32
414
Supra, Section 9, Rule 32
415
Supra, Section 10, Rule 32
416
Supra, Section 11, Rule 32
409

417

Supra, Section 12, Rule 32


Eternal Gardens Memorial Park Corporation v Court of
Appeals, 282 SCRA 553
419
Supra, Section 13, Rule 32
420
Supra, Section 1, Rule 33
421
Quebral v Court of Appeals, 252 SCRA 353
422
Nicos Industrial Corporation v Court of Appeals, 206
SCRA 127
44
418

3.
It is an error on the part of the Court of Appeals to
order REMAND, if dismissal is elevated to it on appeal, it
must decide on the evidence adduced by the plaintiff.423

DISTINGUISHED FROM CRIMINAL CASES

(a) In both civil and criminal actions, the basis for


both is the insufficiency of evidence.
(b) In a civil action, dismissal by demurrer is by
motion only, while in a criminal action,
dismissal by demurrer is upon the courts initiative
or motion giving the prosecution an opportunity to
be heard.
(c) In a civil action, leave is not required prior to
filing, while in a criminal action leave may / may
not be obtained. If obtained no waiver of right to
present evidence if
denied and if there is no
leave, it is a waiver
(d) In a civil action, if granted, plaintiffs remedy is
appeal, while in a criminal action, if granted,
there is no appeal as such will constitute double
jeopardy.

RULE 34 JUDGMENT ON THE


PLEADINGS

Judgment on the pleadings is not allowed in cases of:


(a) Declaration of nullity of marriage
(b) Annulment of marriage
(c) Legal separation.
In these cases, the plaintiff is required to prove the
material facts regardless of whether the answer tenders an
issue.

RULE 35 SUMMARY JUDGMENT

1.
This is
JUDGMENT426

JUDGMENT ON THE PLEADINGS

Can be had if the ANSWER fails to tender an issue or


otherwise admits the material allegations of the complaint

WHAT IS SUMMARY JUDGMENT

Is a devise for weeding out sham claims or defenses at an


early stage of the litigation thereby avoiding the expense /
loss of time involved in a trial. Its very object is to separate
what is formal or pretended in denial or averment from what
is genuine and substantial so that only the latter may subject
a suitor to the burden of trial.

WHEN NOT ALLOWED

also

known

as

WHO MAY MOVE


FOR
JUDGMENT AND WHEN

ACCELERATED

SUMMARY

Either plaintiff or defendant may move for a summary


judgment:

424

1.
There is no MOTU PROPIO RENDITION OF
JUDGMENT as it is always by motion.
2.
An answer fails to tender an issue when it fails to
comply with the requirements of specific denial or is deemed
to have admitted the allegations in the complaint425
3.
An answer admits the material allegations when it
expressly confesses the truthfulness thereof or where it
omits to deal with them all.
4.
NOTE that when an answer raises factual issues
involving damages, it is not proper to render judgment on
the pleadings as presentation of evidence is required.

1.
If plaintiff or claimant (of original complaint /
counterclaim / cross-claim), he may file the motion at any
time after the pleading in answer to his claim has been filed
on the ground that although there is an apparent issue, the
same is SHAM / FALSE427 .
Example: Answer admits obligation but states
that the amount is wrong or less than that claimed. If
plaintiff has proof that there is written acknowledgment that
as of a date or period prior to that of the filing, the defendant
was aware of the true amount, there can be summary
judgment.
2.
If movant is the defending party, he may file the
motion at any time before or after he files his answer on the
ground that plaintiffs claim against him is SHAM or FALSE
428

WHO MAY MOVE FOR JUDGMENT ON


THE PLEADINGS

Only the plaintiff in original complaint, or of the counterclaim, or of the cross claim, or of the third party complaint
may so move for judgment on the pleadings.

3.
An issue is sham or false if it is not genuine.
GENUINE means that the issue of fact is one that calls for
the presentation of evidence.429
4.
In either case, the motion must be filed along with
supporting affidavits, depositions or admissions.

426
423

Radiowealth Finance Company v Del Rosario, 335


SCRA 288
424
Supra, Section 1, Rule 34
425
Supra, Sections 8,9 and 11, Rule 8

Monterey Foods Corporation v Eserjose, 410 SCRA


627, Puyat v Zabarte, 352 SCRA 738
427
Supra, Section 1, Rule 35
428
Supra, Section 2, Rule 35
429
Excelsa Industries v Court of Appeals, 247 SCRA 560
45

5.
The PROCEDURE for the filing and resolution of
a motion for summary judgment is as follows:

(a) A Judgment on the Pleadings is available when


there is no genuine issue as answer fails
to
tender an issue or otherwise admits material
allegations, while Summary Judgment is
available when there is an apparent issue but is a
sham, fictitious or false
(b) A Judgment on the Pleadings is based
exclusively on the pleadings (complaint / answer),
while Summary Judgment is based not only on
pleadings but also on affidavits, depositions and
admissions, showing that except as to damages
there is no genuine issue
(c) A Judgment on the Pleadings can be filed only
after an answer has been filed, while in Summary
Judgment, there may or may not be an answer
(d) A Judgment on the Pleadings can only be had
by the plaintiff, while in Summary Judgment,
either plaintiff or defendant may move for it
(e) a motion for Judgment on the Pleadings is
required to be served on adverse
party at least 3
days prior to the hearing, while a motion for
Summary Judgment requires service at least 10
days prior to the hearing

1.
Plaintiff/Defendant serves on the defendant/
plaintiff a copy of the motion at least 10 days before the date
of hearing specified in the motion.
2.
The defendant/plaintiff MAY serve opposing
affidavits, depositions or admissions at least 3 days before
the date of the hearing.
3.

Court hears the motion.

4.
If after hearing, it finds that the motion filed by
PLAINTIFF justified, thus there is no genuine issue as to any
material fact, it will render summary judgment for the
plaintiff. If not, it will deny, set the case for pre-trial, then
trial. If filed by the defendant and is justified, the complaint
is dismissed, otherwise the case proceeds with the filing of
answer or pre-trial is set and conducted.

FORM OF AFFIDAVITS / SUPPORTING


DOCUMENTS

1.
They shall be made on personal knowledge, setting
forth such facts as would be admissible in evidence and shall
show affirmatively that the affiant is competent to testify to
the matters stated therein. Certified copies of all papers /
parts thereof shall be attached and served therewith.430
2.
If affidavits have been determined to the
satisfaction of the court that they are presented in bad faith
or solely for the purpose of delay, the Court may forthwith
order the offending party to pay reasonable expenses which
may have been incurred by the other party, including
attorneys fees. It may also find / adjudge, after hearing, that
attending party / counsel are guilty of contempt.431

1.
Judgment on the Pleadings is a judgment on facts
as pleaded, Summary Judgment is a judgment as summarily
proven by affidavits, depositions, admissions. If an answer
tenders an issue, there can be no Judgment on the Pleadings
but there can be Summary Judgment, if issue/s is later
shown to be false, sham or fictitious.

RULE 36 JUDGMENTS, FINAL


ORDERS, AND ENTRY THEREOF

EFFECT
OF
THE
RENDITION
SUMMARY JUDGMENT

OF

PARTIAL

OF

JUDGMENT/FINAL

(1) It must be in writing


(2) It must be personally and directly prepared by the
judge
(3) It must state clearly and distinctly the facts and the
law on which it is based
(4) It must be signed by the judge
(5) It must be filed with the clerk of court.433

2.
IF DENIED, it is not appealable as order of denial
of motion is interlocutory THOUGH certiorari may lie if the
rendering of a summary judgment is clear, plain and patent
but the court refuses or declines to render it.
WHEN CAN THERE BE
SUMMARY JUDGMENT

REQUISITES
ORDER

The requisites of a judgment or final order are:

1.
The aggrieved party may appeal the summary
judgment as such is final judgment as defined by Section 1,
Rule 41.

DISTINGUISHED FROM JUDGMENT ON


THE PLEADINGS

1.
NOTE that a judge who has been reassigned can
pen a decision as long he is still an incumbent judge.434

WHEN IS JUDGMENT RENDERED

When the Court finds that a judgment cannot be rendered


upon the whole case or for all the reliefs because there are
controverted facts which require trial. A PARTIAL
SUMMARY JUDGMENT is not appealable and shall be
taken together with the judgment that a trial court will
render after trial. Thus it cannot be executed.432

Ordinarily after trial, except in judgment on the pleadings,


summary judgment, judgment by compromise, judgment
based on stipulation of facts, judgment upon confession,
order of dismissal in instances when it considered as an

430

433

431

434

Supra, Section 5, Rule 35


Supra, Section 6, Rule 35
432
Supra, Section 4, Rule 35

Supra, Section 1, Rule 36


ABC Davao Auto Supply v Court of Appeals, GR
113296, January 16, 1998
46

adjudication on the merits, judgment in cases covered by the


Rules of Summary Procedure.

the action to proceed against the others.439 Example:


Judgment against a surety for admitted liability.

1.
It is the filing of the judgment or final order with
the clerk of court that constitutes RENDITION OF
JUDGMENT, not the date of the writing of the decision or
judgment, nor the signing thereof or even promulgation
thereof.435

3. Separate judgments may be rendered when more than


one claim for relief is presented, the court at any stage
upon determination of the issues material to a particular
claim and all counter claims arising therefrom may render
a separate judgment disposing of the claim and proceeding
with the others. BUT, it may stay execution or enforcement
until rendition of subsequent judgment/s and may prescribe
such conditions to secure benefit thereof to the party in
whose favor the judgment is rendered.440
Example: It may occur when causes of action have
been joined

2.
A MEMORANDUM DECISION is one which
adopts by references findings of facts and conclusions of law
contained in the decision of an inferior tribunal. Note that
this does not violate the rule as to statement of the facts and
law. This kind of a decision can only be rendered by an
appellate court.
3.
A SIN PERJUICIO JUDGMENT is one which is
without a statement of facts and is to be supplemented later
by the final judgment. Such a judgment is void.

DUTY OF THE CLERK OF COURT WHEN


JUDGMENT BECOMES FINAL

If no appeal or motion for reconsideration or new trial is


brought within the time provided, the judgment / final order
shall forthwith be entered by the clerk in the BOOK OF
ENTRIES OF JUDGMENT. The date of finality shall be
deemed the date of entry and shall contain the dispositive
portion and signed by the clerk which a certificate that such
judgment / final order has become final and executory.436
1.
Note that date of entry retroacts to date of finality.
Hence, both occur simultaneously by operation of law.
2.
JUDGMENTS THAT ARE FINAL AND
EXECUTORY CAN BE CORRECTED but limited only
to NUNC PRO TUNC amendments or those that are
merely clerical or typographical.
3.
Correction or amendment is also allowed if purpose
is to clarify an ambiguity caused by an omission or mistake,
judgment / final order.
4.
A COMPROMISE after finality of a judgment is
allowed. The basis of the allowance is the principle of
novation, which is a mode of extinguishing an obligation.437
Pet for extraordinary relief- GR 167651, San Pablo vs.
marina May 10, 2005

4. Judgment against entity without juridical personality it


shall set forth the individual names / proper names if known
of persons composing it.441

JUDGMENTS MAY BE

1. Given for or against one or more several plaintiffs or for or


against one or more several defendants. Courts, when justice
demands require parties on each side to file adversary
proceedings as between themselves to determine their
ultimate rights / obligations.438

RULE 37 NEW TRIAL OR


RECONSIDERATION

WHEN FILED

A motion for new trial or reconsideration may be filed


within the period for taking an appeal.442

GROUNDS FOR A MOTION FOR NEW


TRIAL

1.
Fraud, Accident, Mistake, Excusable Negligence
which ordinary prudence could not have guarded against
and by reason of which the aggrieved party was probably
impaired in his rights.
1.1
Fraud should be extrinsic or collateral, which
refers to such acts that prevents a party from having a trial /
presenting his case in court. It refers to all kinds of
deceptions, whether through insidious machination,
manipulation or concealment or misrepresentation that
leads another party to error.443 Examples are: false promise
to compromise or connivance of lawyer with adverse party.
This does not include INTRINSIC FRAUD or acts of a party
at trial that prevents fair determination. Examples are:
perjury, falsification.
1.2
Accident is a fortuitous event, circumstance, or
happening; an event happening without any human agency
or if happening wholly or partly through human agency, is
an event which under the circumstances is unusual or
unexpected by the person to whom it happens.444 sickness
of a party, lack of notice when sent to other address.
1.3
Mistake refers to some unintentional act,
omission, or error arising from ignorance, surprise,
imposition, or misplaced confidence. It pertains generally to

2. In an action against several defendants, the courts if


proper may render judgment against one or more, leaving
439

Supra, Section 4, Rule 36


Supra, Section 5, Rule 36
441
Supra, Section 6, Rule 36
442
Supra, Section 1, Rule 37
443
Maestrado v Court of Appeals, 327 SCRA 678
444
Jarco Marketing v Court of Appeals, 321 SCRA 375
440

435

Castro v Malazo, 99 SCRA 164


Supra, Section 2, Rule 36
437
Magbanua v. Uy, 458 SCRA 185
438
Supra, Section 3, Rule 36
436

47

mistake of fact, not of law.445 failure to answer / act


because he believed it unnecessary because of a compromise
or other document.
1.4
Excusable 446Negligence is an excusable
omission to do something which a reasonable man, guided
by those considerations which ordinarily regulate the
conduct of human affiants, would do; or the reasonable
doing of something which a prudent or reasonable man
would not do. failure is really that of the party or counsel
non submission on time because of distance traveled.

3.
If MOTION FOR RECONSIDERATION, it
should point out specifically the finding / conclusions which
are not supported by the evidence / contrary to law, making
express reference to testimonial / documentary evidence or
provisions alleged to be contrary to such findings or
conclusions.
3.1
IF NOT, the motion is considered a PRO FORMA
MOTION. It does not toll the reglementary period of
appeal.449 Note also that such a motion without notice of
hearing and proof of service has the same effect450

2.
Newly Discovered Evidence, which the
aggrieved party could not with reasonable diligence, have
discovered or produced at the trial and which would
probably alter the result.
2.1

Hence, the requisites are:


(a) Evidence is discovered after trial
(b) Such could not have been discovered and produced
at the trial with reasonable diligence
(c) Evidence is material NOT cumulative,
corroborative, or impeaching, and is of such weight
that, if admitted, could probably change the
judgment.447

Court may either deny or set aside the judgment or final


order and grant a new trial451
1.
IF denied, another motion be filed, if it is based on
a ground NOT EXISTING NOR AVAILABLE when the
first motion has filed.452 Note that a motion for new trial is
an omnibus motion, thus it should include all grounds then
available as those not included are deemed waived.
2.

GROUNDS
FOR
RECONSIDERATION

MOTION

FOR

The grounds for a motion for reconsideration are:


(a) Award of excessive damages
(b) Insufficiency of evidence to justify the decision or
final order
(c) Decision / final order is contrary to law

HOW FILED / CONTENTS

It shall be made in writing stating the ground/s, written


notice of which shall be served by the movant on the adverse
party.
1.

2.

If the Motion for New Trial is based on Fraud,


Accident, Mistake or Excusable Negligence, it
should be supported by affidavits of merit, which
may be rebutted by affidavits. The requirement of
an affidavit is essential because obviously a new
trial would be a waste of the courts time if the
complaint turns out to be groundless or the defense
ineffective.448
If based on NEWLY DISCOVERED EVIDENCE
it should be supported by affidavits of the witnesses
by whom such evidence is expected to be given or
by duly authenticated documents which are
proposed to be introduced as evidence.

Agan v Heirs of Sps. Andres and Diosdada Nueva, 418


SCRA 421
446
Mckee v Intermediate Appellate Court, 211 SCRA 517
447
Marikina Valley Development Corporation v Court of
Appeals, 294 SCRA 273
448
Yap v Tanada, 163 SCRA 464

IF granted, the effects are


(a) original order / judgment is vacated
(b) the action shall stand trial de novo
(c) recorded evidence, insofar as material or
competent to establish the issues, shall be used at
the new trial without need to retake therein453

IF MOTION FOR RECONSIDERATION IS


FILED WHAT ENSUES

Court may deny or amend its judgment / final order if it


finds that excessive damages are awarded, or that it is
contrary to the evidence or the law454
1.
If denied no second motion for reconsideration is
allowed of the judgment or final order. NOTE THOUGH that
if the subject is not a judgment / final order or is an
interlocutory order which does not dispose of a case
completely but leaves something more to be done upon its
merits, a 2nd motion for reconsideration may be allowed.
2.
The filing of a second motion for reconsideration is
a prohibited pleading. Thus it does not toll the running of
the reglementary period of appeal.455

OTHERS

1.
The periods for resolving the motions are:
(a) MTC / RTC within 30 days from the time it is
submitted for resolution456
449

445

IF A MOTION FOR NEW TRIAL IS FILED,


WHAT ENSUES

Marina Properties Corporation v Court of Appeals, 294


SCRA 273, Cledera v Sarmiento, 39 SCRA 552
450
Firme v Reyes, 92 SCRA 713
451
Supra, Section 3, Rule 37
452
Supra, Section 5, Rule 37
453
Supra, Section 6, Rule 37
454
Supra, Section 3, Rule 37
455
Hongria v Hongria-Juarde, 425 SCRA 504
456
Supra, Section 4, Rule 37
48

(b) Court of Appeals- within 60 days after if declares it


submitted for resolution
(c) Supreme Court - no period is prescribed
2.
THE DENIAL OF BOTH MOTIONS IS NOT
APPEALABLE, IT IS THE JUDGMENT / FINAL
ORDER THAT IS APPEALABLE.457

RULE 38 RELIEF FROM


JUDGMENT, ORDERS OR OTHER
PROCEEDINGS

GROUNDS UPON WHICH IT IS TO BE


BASED

Judgment / final order is entered, or proceeding is


thereafter taken against him through FRAUD, ACCIDENT,
MISTAKE, EXCUSABLE NEGLIGENCE. This means that
the FAILURE TO ACT ON JUDGMENT / FINAL ORDER /
PROCEEDING ARE DUE TO Fraud, Accident, Mistake or
Excusable Negligence. This also applies to a failure to take
an appeal is due.
1.
The object to the petition is that the judgment,
order, or proceeding be set aside or that the appeal be given
due course.
2.

The petition must be VERIFIED.458

3.
The other ways by which a final and executory
judgment may be set aside is by Petition for Certiorari under
Rule 65 and Rule 46 and by Annulment of Judgment under
Rule 47.459

month after such judgment / final order was entered or such


proceeding taken.464
1.1
A few days after expiration of the 60 day period is
not entirely fatal as long as it is still filed within the 6
months period.465
1.2
But if it is a judgment by compromise, the 6
months period runs from date of rendition, because a
judgment upon a compromise is immediately executory and
considered to have been entered on the date it was approved
by the trial court.466
1.3
The 6 months period is reckoned from entry of
judgment or final order, not from its rendition or
finality467while from learning means from notice of
judgment or final order468
2.
It is to be filed in the same case and in the same
court where the judgment / final order was entered or where
proceeding is taken.

PROCEDURE

1.
Filing of verified petition accompanied by affidavits
showing FAME and the facts showing the petitioners good
and substantial cause of action or defense, as the case may
be (grounds constituting his cause of action / defense)
2.
Order issued requiring adverse party to answer
within 15 days from receipt469 and if warranted a writ of
preliminary Injunction may be issued.470
3.
Adverse party answers, but if he does not, he
cannot be declared in default.
4.
Court hears and may grant relief if the allegations
are true or deny if not true.

4.
The petition is premised on equity. It should
therefore be granted only in exceptional cases. Petitioner
must be able to prove fraud, accident, mistake or excusable
negligence and the existence of a good and substantial cause
of action or defense, as the case may be.460

4.1
If granted, the assailed final order / judgment /
proceeding is set aside and proceedings taken as if a timely
motion for new trial has been granted.471 There are in effect
two hearings: the first is as to the merits of the petition, the
second is as the merits of the principal case.

5.
It cannot be availed of if there is another remedy in
law461and is available only against a final and executory
judgment.462

4.2
If denied, the order is not appealable472 but may be
subject of certiorari under Rule 65

6.
Note though that is the case is covered by the Rules
on Summary Procedure, a petition for relief is a prohibited
pleading.463

5.
Court hears the case as if a timely motion for new
trial or reconsideration has granted. If the subject is denial
of an appeal, the lower court shall be required to give due
course to the appeal and elevate the records as if a timely
and proper appeal has been made.473

WHEN AND WHERE FILED

1.
It is to be filed within 60 days after he learns of the
judgment final order / proceeding but not more than 6

6.
464

Supra, Section 3, Rule 38


Mago v Court of Appeals, 303 SCRA 600
466
Manipor v Ricafort, 407 SCRA 298
467
Bayog v Natino, 258 SCRA 378
468
Prudence Realty and Development Corporation v Court
of Appeals, 231 SCRA 379
469
Supra, Section 4, Rule 38
470
Supra, Section 5, Rule 38
471
Supra, Section 6, Rule 38
472
Supra, Section 1(b), Rule 41
473
Supra, Section 7, Rule 38
49
465

457

Barnes v Reyes, 411 SCRA 538


Supra, Sections 1 and 2, Rule 38
459
Arcelona v Court of Appeals, 280 SCRA 20
460
Torno v Intermediate Appellate Court, 166 SCRA 742
461
Alquesa v Cavada, Jr. 3 SCRA 428
462
Valencia v Court of Appeals, 352 SCRA 72
463
Sta Lucia Realty and Development Corporation v Court
of Appeals, 343 SCRA 214
458

Judgment is rendered and is appealable

DISTINGUISHED FROM A MOTION FOR


NEW TRIAL

They are distinguished as follows:


(a) a motion for new trial is filed before judgment
becomes final, while a petition for relies if filed
after a judgment becomes final
(b) a motion for new trial applies to judgments / final
orders, while a petition for relief includes
proceedings
(c) the grounds for a motion for new trial includes
newly discovered evidence, while a petition for
relief is limited to FAME
(d) a motion for new trial is filed within the period
for perfecting an appeal, while a petition for
relief is filed within 60 days from knowledge but
within 6 months from entry of judgment
(e) a motion for new trial if denied allows an appeal,
while a petition for relief from judgment does
not allow an appeal
(f) a motion for new trial is a legal remedy, while a
petition for relief is a remedy in equity
(g) a motion for new trial requires no verification,
while a petition for relief needs to be verified.

a.
It is filed in the trial court while it has jurisdiction
over the case and is in possession of either the original
record or the record on appeal, as the case may be, at the
time of the filing of the motion. 476 The COURT, may in its
discretion, order execution of judgment / final order even
before the expiration of the period to appeal. If the trial
court has lost jurisdiction, it is to be filed with the appellate
court.
a.1
A court LOSES JURISDICTION when there is
perfected appeal and the period to appeal has expired. When
a record on appeal is required, it loses jurisdiction OVER
THE SUBJECT OF THE APPEAL upon perfection of the
appeal and expiration of the period to appeal.
a.2
The REQUISITES OF EXECUTION PENDING
APPEAL are:
(1) A motion by the prevailing party with notice to the
adverse party
(2) There must be good reason for execution pending
appeal
(3) The good reason must be stated in a special order.
They must constitute superior circumstances
demanding urgency which will outweigh the injury
or damage should the losing party secure a reversal
of the judgment on appeal.477
EXAMPLES
OF
GOOD
REASONS
are:
deterioration of the goods, prevailing partys
inability to enjoy the decision, or its becoming
illusory. In a recent case, OLD AGE was found to be
a good reason.478 NOTE: corporations financial
distress was not considered a good reason.

RULE 39 EXECUTION,
SATISFACTION AND EFFECT OF
JUDGMENTS

TWO KINDS OF EXECUTION

1. COMPULSORY is one which issues as a matter


of right, or motion, upon a judgment or order that disposes
of the action or proceeding UPON EXPIRATION of the
period to appeal, if no appeal is taken therefrom / is
perfected. It also issues when appeal is duly perfected and
finally resolved.
a.
It may be applied for in the court of origin, on
motion of judgment obligee submitting certified true
copies of the judgment / final orders / orders sought to be
enforced and ENTRY thereof, with notice to the adverse
party. There is no need for return of records.
b.
It may also be applied for in the appellate court, on
motion in the same case, when the interest of justice so
requires, direct the court of origin to issue the writ of
execution in the event of the refusal of the court of origin to
issue the writ. 474
c.
A motion is required as there may be questions /
disputes as to finality or amounts to be stated in the writ.
2. DISCRETIONARY is one that is issued, on
motion, of the prevailing party for good reasons. This is also
known
as
EXECUTION
PENDING
APPEAL
/
EXCEPTIONAL EXECUTION 475

474
475

Supra, Section 1, Rule 39


Supra, Section 2, Rule 39

b.
DISCRETIONARY EXECUTION BE STAYED
upon approval by the proper court of a sufficient
supersedeas bond filed by the party against whom it is
directed CONDITIONED UPON THE PERFORMANCE
OF THE JUDGMENT / FINAL ORDER allowed to be
executed in case finally sustained in whole in part. The bond
may then be proceeded against on motion with notice to the
surety.479 BUT, the mere filing of a bond by a successful
party allow execution pending appeal nor constitute good
ground.480
b.1
There are JUDGMENTS NOT STAYED BY
APPEAL such as judgments in injunction, to include a
judgment dissolving it481 receivership, accounting and
support and such other judgments as are now or hereafter
be declared to be immediately executory, shall be
enforceable upon their rendition, they shall not be stayed by
an appeal taken therefrom, unless otherwise ordered by the
trial court. IF STAYED, it shall be upon such terms as to
bond or otherwise as may be considered proper for the
security / protection of the rights of the adverse party. ON
APPEAL THOUGH, the appellate court may make an

476

Philippine Nails & Wires Corpoation v Malayan


Insurance Company, 397 SCRA 431
477
Jaca v Davao Lumber Company, 113 SCRA 107
478
FEBTC v Toh, Sr. 404 SCRA 590
479
Supra, Section 3, Rule 39
480
International School v. Court of Appeals, 309 SCRA 474
481
ITC v PTA, 341 SCRA 90
50

order suspending, modifying, restoring or granting the


injunction, receivership, accounting or award of support.482
b.2
Judgments in Forcible Entry / Illegal Detainer, if
against the defendant are immediately executory.483 The
same is true of a judgment by compromise.484
b.3
IF THERE ARE SEPARATE JUDGMENTS /
OR SEVERAL OR PARTIAL JUDGMENTS, they may
executed under the same terms and conditions as execution
of a judgment / final order pending appeal.485
b.4
IF
EXECUTION
IS
GRANTED
BUT
JUDGMENT / FINAL ORDER IS REVERSED ON
APPEAL totally / partially or annulled, on appeal or
otherwise, the trial court, on motion, may issue orders of
reparation or restitution of damages as equity and justice
may warrant under the circumstances.486 The phrase or
otherwise applies to reversal after a petition for relief has
been granted under Rule 38 and upon a favorable judgment
in a petition for annulment of judgment under Rule 47
b.5
The Court of Appeals has no authority to issue
immediate execution pending appeal of its own decision.
Discretionary execution applies only to a judgment or final
order of the trial court.487

WHAT ARE / OR MAY BE THE SUBJECT


OF EXECUTION

Only judgments or final orders, or one which disposes of the


whole subject matter or terminates a particular proceeding
or action, leaving nothing to be done but to enforce by
execution that which has been determined. AS OPPOSED
TO -Interlocutory orders which cannot be enforced by
execution, one that does not dispose of a case completely,
but leaves something to be done on the merits.
1.
An EXCEPTION is
pendente lite.488

a judgment for

support

A final and executory judgment may be enforced by


(1) By motion within 5 years from date of entry of
judgment
(2) By action after the lapse of 5 yrs from date of entry
of judgment but before barred by statute of
limitations, which is 10 years. This is known as
action to revive judgment.490
1.
The revived judgment may also be enforced by
motion within 5 yrs from date of entry, and thereafter by
action before it is barred by the statute of limitations. The
purpose of the action is not to re-examine the issues as the
cause of action is the judgment itself and not the merits of
the original action.491
2.
RECONCILING WITH ACTIONS UPON A
JUDGMENT under Article 1144, NCC WHICH
PRESCRIBES IN 10 YEARS. The Rules of Court refer to the
manner of execution of the judgment.
3.
Note that this is not applicable in land registration
cases or other special proceedings, IN CIVIL ACTIONS
ONLY.
4.
There are however instances when judgment / final
order can still be enforced by motion even after lapse of 5
years when the delay is caused or occasioned by the actions
of the judgment obligee or incurred for his benefit or
advantage.492 The liberal construction of the rule resulting in
non inclusion of the period of delay occasioned by the acts of
the judgment oblige in the counting of the period was
resorted to as strict adherence to the letter of the law would
result in absurdity and manifest injustice.493

A writ of execution shall


(1) Issue in the name of RP from the Court that
granted the judgment
(2) State the name of court, case number, title, and
dispositive portion
(3) Require the sheriff or other proper officer to whom
it is directed to enforce the writ according to its
terms, in the manner herein provided:
(a) execution be against property of judgment
obligor, to satisfy judgment with interest, out
of his real or personal property
(b) if against real or personal property, in the
hands of personal representatives, heirs,
devisees, legatees, tenants trustees of the
judgment obligor, to satisfy the judgment,
with interest, out of such property
(c) if it be for sale of real / personal property, to
sell it, describing it, and apply the proceeds in
conformity with the judgment, the material
parts of which shall be recited in the writ
(d) if it be for delivery of the possession of real /
personal property, to deliver the possession of
the same, describing it, to the party entitled
thereto and to satisfy any costs, damages,

2.
Distinguishing a final judgment or order from
one which has become final and executory. A final
judgment is one that finally disposes of a case, leaving
nothing more to be done by the court in respect thereto. It is
an adjudication on the merits. Once rendered, the task of the
court is ended, as far deciding the controversy or
determining rights and liabilities of litigants. Nothing more
is to be done but to await the parties next move, and
ultimately, to cause execution of the judgment once it
becomes final and executory.489

HOW CAN A FINAL JUDGMENT / ORDER


BE ENFORCED

482

Supra, Section 4, Rule 39


Supra, Section 19, Rule 70
484
Litton v Court of Appeals, 263 SCRA 40, AFPMBAI v
Court of Appeals, 311 SCRA 143
485
Supra, Section 2 (b), Rule 39
486
Supra, Section 5, Rule 39
487
Heirs of the late Justice JBL Reyes v Demetria, 374
SCRA 206
488
Supra, Section 5, Rule 61
489
Denso Philippines, Incorporated v IAC, 148 SCRA 280

ISSUANCE, FORM, CONTENTS OF A WRIT


OF EXECUTION

483

490

Supra, Section 6, Rule 39


Laperal v Ocampo, 410 SCRA 339
492
Camacho v Court of Appeals, 287 SCRA 611
493
Republic v Court of Appeals, 260 SCRA 344
491

51

rents, profits covered by the judgment out of


the personal property of the person against
whom it was rendered, and if no sufficient
personal property be present, out of real
property
(e) in all cases, the writ shall specifically state the
amount of interest, costs damages, rents,
profits due as of the date of issuance of the
writ aside from the principal obligation under
judgment494

MANNER OF EXECUTION

I.

FOR SUMS OF MONEY


1.

Immediate payment on demand from judgment


obligor payable in cash of certified bank check
payable to the obligee or any form acceptable to
him plus lawful fees to be turned over to the clerk
of court of the court that issued the writ.

If judgment obligee is not present to receive the amounts, it


shall be delivered by judgment obligor to the sheriff, turning
in all amounts on the same day to the clerk of court or if not
practicable, to deposit in the nearest government depository
bank of Regional Trial Court in the locality, then
arrangements are then made for remittance to clerk of court
issuing the writ for delivery to the judgment obligee. IN NO
CASE SHALL SHERIFF DEMAND PAYMENT BY
CHECK PAYABLE TO HIM
3.

Satisfaction by levy if not paid in cash, the


sheriff shall levy on the properties of judgment
obligor of any kind / nature which may be disposed
of for value and not otherwise exempt from
execution giving obligor the option to
immediately choose which property or part thereof
may be levied upon to satisfy judgment. If not
sheriff shall levy on personal properties first, if
any, then on real properties if insufficient to answer
for judgment. Sheriff can only sell sufficient
portion of the personal / real property levied upon
when there is more property then is sufficient to
satisfy judgment, on so much of it to satisfy
judgment is to be sold. The conduct of the SALE
SHALL FOLLOW THE PROCEDURE LAID DOWN
BY THE RULES TO IMPLEMENT SALE OF
PROPERTY.

2.1
EFFECT OF LEVY. A levy on execution shall
create lien in favor of the judgment obligee over the right,
title and interest of the judgment obligor in such property at
the time of levy subject to liens / encumbrances then
existing effect then on 3rd persons depends on when
their liens / encumbrances if any, was annotated or
interposed.495

3.
Garnishment of debts and credits. The officer may
levy on debts due the judgment obligor and other credits.
Examples: bank deposits, financial interests, royalties,
commissions, and other personal property. These are not
capable of normal delivery and are in the possession and
control of third parties.
3.1
Levy shall be made by serving notice on the person
owing such debts or having in his possession or control such
credits to which the judgment obligor is entitled.
3.2
The garnishee, shall then make a written report to
the court from service of notice stating whether or not the
judgment obligor has sufficient funds or credits to satisfy the
judgment the garnished amount shall then be delivered
directly to the judgment obligee within 10 working days
from service of notice on him requiring delivery less lawful
fees to be paid directly to the Court.
3.3
If there are 2 or more garnishees the judgment
obligor shall have the right to indicate the garnishee/s who
shall deliver, otherwise it shall be the choice of the judgment
obligee.497 (Section 9)
4.
Writ is to be returned to the Court issuing it
immediately after judgment has been satisfied in part or in
whole. If not / cannot be satisfied in full within 30 days from
receipt of the writ, the officer shall report to the court and
state the reason therefor. Such writ will continue to be in
effect during the period within which judgment may be
enforced by motion, the officer shall then make a report to
the Court every 30 days on the proceedings taken thereon
until the judgment is satisfied in full or its effectivity expires.
The returns / reports shall set forth the proceedings taken,
filed with the court and copies promptly furnished
parties.498
II.

FOR SPECIFIC ACTS499

1.
If CONVEYANCE, DELIVERY OF DEEDS OR
OTHER SPECIFIC ACTS party is directed to comply if
he fails to do so within the period specified, court may direct
the act to be done at the cost of the disobedient party, by
some other person appointed by the court and when so done
it is as if done by the disobedient party. If it involves real /
personal property located in the Philippines, the court in
lieu of directing a conveyance thereof may by an order divest
title and vest it in others, which shall have the force and
effect of a conveyance executed in due form of law.
2.
If
for
SALE
OF
REAL/PERSONAL
PROPERTY the property is to be sold, describing it, and
apply the proceeds in conformity with the judgment.
2.1

The procedure is as follows:

2.2
PROBLEM if LEVY is made beyond the period of
5 years from entry of judgment. The same is NOT VALID
as lifetime or a writ of execution is 5 years from date of entry
of judgment.496

a.

Notice must be given as follows:

494

497

495

498

Supra, Section 8, Rule 39


Supra, Section 12, Rule 39
496
Supra, Section 14, Rule 39

1.
Perishable property posting of written notice
(of time, place, sale) in 3 public places preferably in
conspicuous areas of the municipal/city hall, post office,

Supra, Section 9, Rule 39


Supra, Section 14, Rule 39
499
Supra, Section 10, Rule 39
52

public market, for such a time as may be reasonable


depending on circumstances.

Without an agreement officer may adjourn from day to


day if it becomes necessary.503

2.
Personal property posting of written notice in
3 public places for not less than 5 days.
3.
Real property posting of written notice in 3
public places for at least 20 days, describing the property,
where it is to be sold, and if assessed value is in excess of
PHP 50,000.00, publishing the notice in a newspaper of
general circulation once a week for 2 consecutive weeks.
IN ALL CASES written notice is also given to judgment
obligor at least 3 days before the sale except in (a) notice is
given at any time in the same manner as personal service of
pleadings. 500
4.
The CONTENTS OF NOTICE are the place, date
exact time not earlier than 9:00 am or later than 2:00 pm.
The place may be agreed upon, if not,
Real/Personal
property not capable of manual delivery shall be sold at the
Office of the Clerk of Court of Regional or Municipal Trial
Court issuing the writ. If capable of manual delivery, where
personal property is located.
5.
If there is a sale WITHOUT NOTICE, the officer
is liable for punitive damages in the amount of PHP 5,000 in
addition to actual damages sustained by injured person. IF
DEFACED / REMOVED before the sale / satisfaction of
the judgment, the person so defacing or removing shall be
liable to pay PHP 5,000.00 plus actual damages. These are
recoverable upon motion.501

Officer may again sell the property to the highest bidder and
shall not be responsible for any loss occasioned thereby, like
when it is resold for less. But, the court may order the
refusing purchaser to pay unto the Court such loss, and
punish him with contempt if he disobeys. Payment shall
inure to the benefit of party entitled to execution, unless he
has been satisfied, in which case to the judgment obligor. IN
ADDITION: officer may thereafter reject all bids of such
purchaser.504

2.
If sale is of real property consisting of several
known lots they must be sold separately or if claimed by a
3rd person, he may require it to be sold separately.
3.
Personal property capable of manual delivery it
must be sold within view of those attending and in such
parcels so as to bring the highest price.
4.
The judgment obligor, if present may direct the
order in which the property is to be sold when such property
consists of several parcels / known lots which can be sold to
advantage separately.
5.
No officer or his deputies, can be a purchaser, nor
be interested directly or indirectly in any purchase at such
sale.502

CAN JUDGMENT OBLIGEE PURCHASE

Yes, and if no 3rd party claim has been filed, he need not pay
the amount if it does not exceed the amount of his judgment.
If it does he shall only pay the excess. 505

EFFECT OF PAYMENT BY JUDGMENT


OBLIGOR BEFORE SALE OF PROPERTY
ON EXECUTION

Sale is prevented by the payment required by execution and


cost incurred therein506

b.
All sales shall be by public auction. This applies
also when property is levied upon. Sale is made to the
highest bidder, to start at the exact time stated in the notice.
1.
If sufficient property has been sold, no more shall
be sold and any excess property / proceeds shall be delivered
to the judgment obligor or his representative, unless
otherwise directed by the court EXAMPLE- other debts
due to be paid

WHAT HAPPENS WHEN A PURCHASER


REFUSES TO PAY

WHAT HAPPENS IF PROPERTY


CLAIMED BY THIRD PERSON

IS

Third person is called a third party claimant. He is one who


claims title to, or right of possession of the property levied
upon by the sheriff. NOTE: there may be a 3rd party claimant
in execution, preliminary attachment and replevin.

WHAT DOES 3RD PARTY CLAIMANT DO

He can file a 3rd party claim or a terceria by executing an


affidavit showing his title thereto, or right of possession over
the property being levied upon, stating therein the grounds
of such title or right, serving a copy thereof to the sheriff and
judgment obligee. If filed, sheriff is not obliged to proceed
unless the judgment obligee files an indemnity bond in an
amount not less than value of the property. No action on
the bond may enforced by the third party claimant unless
filed within 120 days from date of the filing of the bond. If
bond is filed 3rd party claimant may vindicate his claim
within the period OR he may institute a separate action to
vindicate his claim BUT nothing also prevents the judgment
obligee from claiming damages in the same or separate
action against a 3rd party claimant who files a frivolous /
spurious claim.

6.
By written consent of both judgment obligor /
obligee or their duly authorized representatives, the auction
sale may be adjourned to any date or time agreed by them.
503
500

Supra, Section 15, Rule 39


501
Supra, Section 17, Rule 39
502
Supra, Section 19, Rule 39

Supra, Section 22, Rule 39


Supra, Section 20, Rule 39
505
Supra, Section 21, Rule 39
506
Supra, Section 18, Rule 39
504

53

If writ is issued in the name of the RP, no bond is required.


Officer is to be represented by the SOLGEN, and if damages
are assessed, it is to be paid out of the National Treasury. 507
C.
AFTER SALE, CONVEYANCE MADE AS
FOLLOWS

I.

REAL PROPERTY a certificate of sale is


given stating the description of the property, price paid for
each distinct lot / parcel, whole price paid and a statement
that the right of redemption shall or will expire one year
from date of registration of the certificate.508 MAKING
MENTION OF THE EXISTENCE OF A 3RD PARTY CLAIM,
IF ANY509 Note: the requirement of mentioning a 3rd party
claim, if any, applies also to conveyance over personal
property.

a.

A redemptioner must produce to the officer, or person from


whom he seeks to redeem, and serve with notice to the
officer- a copy of judgment or final order, certified by the
clerk of court. Mortgage / other lien certified copy by the
Register of Deeds / or memorandum thereof and affidavit
showing amount due on the lien.511

b.

A creditor having a lien by virtue of an attachment,


judgment, mortgage on the property sold or on
some part thereof, subsequent to the lien under
which the property is sold. Such redeeming creditor
is called a REDEMPTIONER.510

TIME AND MANNER OF REDEMPTION

The judgment obligor / redemptioner may redeem the


property from the purchaser at any time within 1 year from
registration by paying the amount of purchase, plus 1%
interest per month at the time of redemption, together with
the amounts of assessments / taxes paid at the purchase and
interest on the same at the same rate, AND, if the purchaser
be also a creditor having a prior lien to that of the
redemptioner, other than the judgment, the amount of the
lien plus interest.
Property so redeemed may be redeemed within 60 days after
the last redemption upon payment of the sum paid, w/ 2%
interest thereon plus taxes / assessments paid, and amount
of liens held by redemptioner prior to his own. AND SO
FORTH.
Written notice however of redemption must be given to the
officer who made the sale and duplicate with the Registry of
Deeds and if any assessments / taxes / prior liens are paid,
notice must also be given to above parties OTHERWISE,
redemption can be effected without paying taxes /
assessments / liens. NOTE: Proof required of redemption
under Section 30

IF JUDGMENT OBLIGOR REDEEMS

He must make all the payments required to effect a


redemption by a redemptioner. Thereupon, no further
redemption is allowed and he is restored to his estate. The
person upon whom redemption payment is made shall
execute a Certificate of Redemption after payment.
Certificate is then filed with the Office of the Registry of
Deeds.512

THE PARTIES ENTITLED TO REDEEM


ARE:
Judgment obligor, or his successor in interest, in
whole or any part of the property

PROOF REQUIRED OF REDEMPTION

WHO IS ENTITLED TO THE USE OF REAL


PROPERTY PENDING REDEMPTION

1.
Person in possession at the time of sale or entitled
to possession afterwards may continue to use it in the same
manner as it was previously used, or to use in the ordinary
course of husbandry or to make necessary repairs to
buildings thereon while he occupies the property, BUT the
court in proper cases, may restrain the commission of waste
on the property by injunction on the application of the
purchaser / judgment obligee with or without notice. 513
2.
Rents, earnings and income shall belong to the
judgment obligor until the expiration of his period for
redemption. Neither shall the purchaser or judgment obligee
be entitled to the same when such property is in the
possession of a tenant.514

IF NO REDEMPTION IS MADE

If no redemption is made within one year from date


of registration, the purchaser is entitled to possession and
conveyance; OR if so redeemed whenever 60 days has
elapsed and no other redemption is made and the time for
redemption has expired, the last redemptioner is entitled to
possession and conveyance. BUT, in all cases the judgment
obligor is entitled to have the entire period of one year.
Officer shall execute the deed / or his successor in
interest with the same effect.
Once done, the purchaser / redemptioner shall be
substituted to and acquire all the rights title and interest and
claim of the judgment obligor to the property as of the time
of the levy. Possession shall then be given unless property is
held by a 3rd party adverse to the judgment obligor. 515
Manner of effecting transfer of possession is by writ of
possession.516

511

Supra, Section 30, Rule 39


Supra, Section 29, Rule 39
513
Supra, Section 31, Rule 39
514
Supra, Section 32, Rule 39
515
Supra, Section 33, Rule 39
516
Cometa v IAC, 151 SCRA 563, AutoCorp Group v
Court of Appeals, 437 SCRA 678
512

507

Supra, Section 16, Rule 39


Supra, Section 25, Rule 39
509
Supra, Section 26, Rule 39
510
Supra, Section 27, Rule 39
508

54

IF
THE
SALE
IS
SUBSEQUENTLY
RENDERED INFFECTIVE

If the purchaser of real property or his successor in


interest fails to recover possession or is evicted therefrom
AS A CONSEQUENCE OF: irregularities in the
proceedings concerning the sale, judgment has been
reversed or set aside (RE: RELIEF),property is exempt from
execution , or, 3rd person has vindicated his right to the
property
HE MAY on motion in the same action OR in a separate
action recover from the judgment obligee the price paid with
interest, or so much thereof as has not been delivered to the
judgment obligor OR, he may on motion have the judgment
revived in his name (if redemptioner) for the whole price
with interest, or so much thereof as has been delivered to the
judgment obligor Judgment revived shall have the same
force and effect as an original judgment would have as of the
date of revived and no more.517

II.

Performance of an act other than those enumerated in


Section 9 and 10, a certified copy of the judgment shall be
attached to the writ of execution and served upon party
against whom it is rendered, or upon any person required
thereby, or by law, to obey the same if such party / person
disobeys they may be punished for contempt.521
EXAMPLE: Injunction, Quo warranto

Except as otherwise expressly provided by law, the following


property, and no other, shall be exempt from execution:
(a) The judgment obligors family home as provided by
law, or the homestead in which he resides, and land
necessarily used in connection therewith;
(b) Ordinary tools and implements personally used by
him in his trade, employment, or livelihood;

PERSONAL PROPERTY -

(c) Three horses, or three cows, or three carabaos, or


other beasts of burden, such as the judgment
obligor may select necessarily used by him in his
ordinary occupation;

a.
If capable of Manual Delivery, the officer must
deliver the property and if desired, execute and deliver a
certificate of sale, which shall conveys all right with the
judgment obligor had in such property as of date of levy on
execution or preliminary attachment. 518

(d) His necessary clothing and articles for ordinary


personal use, excluding jewelry;

b.
If Incapable of Manual Delivery, the officer must
execute and deliver a certificate of sale and such shall convey
all rights to purchaser as of the date of levy on execution or
preliminary attachment. 519

(e) Household furniture and utensils necessary


housekeeping, and used for that purpose by
judgment obligor and his family, such as
judgment obligor may select, of a value
exceeding one hundred thousand pesos;

3.
If for DELIVERY OR RESTITUTION OF
REAL PROPERTY officer shall demand of the person
against whom judgment is rendered and all persons
claiming rights under him to peaceably vacate the property
within 3 working days and restore possession thereof to the
judgment obligee OTHERWISE, officer shall oust all
such persons thereon, with assistance from peace officers
employing reasonable means and place the judgment
obligee in possession. Any costs, damages, rents, profits
shall be satisfied in the same manner as a judgment for
money.

for
the
the
not

(f) Provisions for individual libraries and equipment


of judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen, teachers,
and other professionals, not exceeding three
hundred thousand pesos in value;
(g) One fishing boat and accessories not exceeding the
total value of one hundred thousand pesos owned
by a fisherman and by the lawful use of which he
earns his livelihood;
(h) So much of the salaries, wages, or earnings of the
judgment obligor for his personal services within
the four months preceding the levy as are necessary
for the support of his family;

4.
If for REMOVAL OF IMPROVEMENTS
officer shall not destroy, demolish or remove except upon
special order of the court, issued upon motion / hearing and
after the judgment obligee had failed to remove within a
reasonable time fixed by the rules.

(i) Lettered gravestones;

5.
If for DELIVERY OF PERSONAL PROPERTY
officer shall take possession and forthwith deliver it to
party entitled thereto and satisfy any judgment for money as
herein provided. 520

WHAT ARE THE PROPERTIES EXEMPT


FROM EXECUTION

(j) Monies, benefits, privileges, or annuities accruing


or in any manner growing out of any life insurance;
(k) The right to receive legal support, or money or
property obtained as such support, or any pension
or gratuity from the Government;

EXECUTION OF SPECIAL JUDGMENTS

(l) Properties specially exempted by law.

517

Supra, Section 34, Rule 39


Supra, Section 23, Rule 39
519
Supra, Section 24, Rule 39
520
Supra, Sections 9 and 10, Rule 39

But no article or species of property mentioned in this


section shall be exempt from execution issued upon a

518

521

Supra, Section 11, Rule 39


55

judgment recovered for its price or upon a judgment of


foreclosure of a mortgage thereon.522

appear before the Court / commissioner and be examined


concerning the same.

Claims for exemption from execution of properties must be


presented before its sale on execution by the sheriff.523

The service of the order shall bind all credits due the
judgment obligor and all money / property of the judgment
obligor in the possession / control of the person, corporation
or juridical entity.

WHAT HAPPENS TO EXECUTION UPON


THE DEATH OF A PARTY

It may issue or be enforced:


a.
In case of death of judgment obligee, upon
application of his executor or administrator
b.
In case of death of judgment obligor, against his
executor, administrator, or successor in interest, IF it be for
recovery of real or personal property or enforcement of a
lien.
c.
Death of judgment obligor after execution is
actually levied upon any of his property, the same may be
sold for the satisfaction of the judgment obligation and the
officer must account to the executor or administrator for any
surplus, if any. 524

AS
BETWEEN
SEVERAL
PERSONS
AGAINST
WHOM
EXECUTION
IS
DIRECTED

There is a right to contribution or reimbursement if: more


than a due portion of the judgment is satisfied out of the
proceeds of the sale of the property of one of them, OR, one
pays, without sale, more than his proportion.
AND, if judgment is upon an obligation of one of them, as
security for another, and the surety pays the amount, or any
part thereof, either by sale of property or before a sale, he
may compel repayment from the principal.525

WHAT ARE THE OTHER REMEDIES OF


THE JUDGMENT OBLIGEE IF EXECUTION
IS NOT CARRIED OUT OR JUDGMENT IS
NOT SATISFIED

1.
Examination of the judgment obligor concerning
his property and income before the court or a commissioner
and proceedings may thereafter may be had for the
application of his property or income towards satisfaction of
judgment BUT no obligor can be required to appear
before a court or commissioner outside the province or city
where he resides.526

Notice of all proceedings may also be required by the


court.527
Obligor of judgment obligor may thereafter pay after writ of
execution on property has been issued, the amount of his
debt or so much thereof as may be necessary to satisfy the
judgment and the sheriffs receipt shall constitute sufficient
discharge for the amount so paid or directed to be credited
by the judgment obligee on the execution528
In relation to both remedies party or other person
may be compelled to appear by subpoena and failure to obey
an order, subpoena or be sworn or answer as a witness or
subscribe to a deposition is punishable by contempt. 529
3.
Order for application of property and income to
satisfaction of judgment. it may include his property or
money due the judgment obligor, not exempt from
execution, in his hands or other person, corporation or
juridical entity may be applied to satisfaction of judgment
subject to any prior rights over such property. ALSO, if
upon investigation of current income and expenses, the
earnings of judgment obligor are more than necessary for
the support of his family, the court may order that judgment
be paid by monthly installments, failing in which he may be
punished for indirect contempt.530
4.
Appointment of a receiver for the property of
the judgment obligor, it may also forbid a transfer or other
disposition of or interference with the property of the
judgment obligor not exempt from execution.531 Thereafter,
there can be a sale by the receiver upon order of
ascertainable interest (or the real estate itself) of a judgment
obligor in real estate in the place where proceedings are had
as mortgagor / mortgagee or otherwise and if his interest
can be ascertained without controversy, the receiver may be
ordered to sell and convey such interest or real estate or the
interest of the obligor therein. All proceedings to be
approved by the Court before execution of the deed.532
In relation to the foregoing, IF IT APPEARS THAT A
PERSON OR CORPORATION, ALLEGED TO HAVE
PROPERTY OF THE JUDGMENT OBLIGOR DENIES OR
CLAIMS INTEREST IN THE PROPERTY ADVERSE TO
HIM, The Court may:
(1) order judgment obligee to institute an action
against such person or corporation for the recovery
of such interest or debt
(2) forbid a transfer / disposition of such interest /
debt within 120 days from notice of the order

2.
Examination of the obligor of the judgment obligor
upon proof shown to the satisfaction of the court that a
person, corporation or other juridical entity has property of
the judgment obligor or is indebted to him, the Court may by
order require the person, corporation or juridical entity to
527
522

Supra, Section 13, Rule 39


523
Gomez v Gealone, 203 SCRA 474
524
Supra, Section 7, Rule 39
525
Supra, Section 35, Rule 39
526
Supra, Section 36, Rule 39

Supra, Section 37, Rule 39


Supra, Section 39, Rule 39
529
Supra, Section 38, Rule 39
530
Supra, Section 40, Rule 39
531
Supra, Section 41, Rule 39
532
Supra, Section 42, Rule 39
528

56

(3) punish disobedience of such order as for contempt.


The order may be modified or vacated at any time
by the court that issued it, or by the court in which
the action is brought, upon terms as may be just.533

WHAT IS TO BE DONE AFTER JUDGMENT


IS SATISFIED
Entry of satisfaction of judgment by the Clerk of
Court in Court Docket and Execution Book upon
RETURN
OF
WRIT
INDICATING
SATISFACTION / ON ADMISSION OF
SATISFACTION BY JUDGMENT OBLIGEE /
COUNSEL534

It can also be entered upon demand of judgment obligor


when judgment is satisfied in fact OR upon notice /
motion court may order entry without admission535

EFFECT OF
ORDERS

JUDGMENTS

OR

FINAL

1.
Effect of a judgment / final order rendered by a
court in the Philippines, having jurisdiction to pronounce
the same.
(a)
In case of a judgment / final order against a specific
thing, or in respect to probate of a will or administration of
the estate of a deceased person, or in respect to personal,
political or legal condition / status of a particular person or
his relationship to another, the judgment or final order is
conclusive upon the title to the thing, the will,
administration status or relationship of the person.
HOWEVER, probate or granting of letters of administration
shall only be prima facie evidence of the death of the
testator.536
(b)
Other cases, judgment / final order is with
RESPECT TO THE MATTER DIRECTLY ADJUDGED OR
AS TO ANY MATTER THAT COULD HAVE BEEN RAISED
IN RELATION THERETO is CONCLUSIVE BETWEEN
THE PARTIES AND THEIR SUCCESSORS IN INTEREST
BY TITLE SUBSEQUENT TO THE COMMENCEMENT OF
THE ACTION OR SPECIAL PROCEEDING LITIGATING
FOR THE SAME THING, UNDER THE SAME TITLE AND
IN THE SAME CAPACITY.537

judgment on the merits rendered in the first constitutes an


absolute bar to the subsequent action.
1.2
Paragraph (c) is illustrative of what is known as
conclusiveness of judgment, when between the first case
wherein judgment was rendered and the second case
wherein such judgment is invoked, there is only identity of
parties, but there is no identity of cause of action, the
judgment is thus conclusive in the second case, only as to
the matters actually and directly controverted and
determined, and not as to matters merely involved
therein.539
1.3
CONCLUSIVENESS OF JUDGMENT, also
known as PRECLUSION OF ISSUES or COLLATERAL
ESTOPPEL espouses that issues actually and directly
resolved in a former suit cannot again be raised in any future
case between the same parties involving a different cause of
action.540
1.4
The doctrine of The law of the case states
that whatever has once been irrevocably established as the
controlling legal rule of decision between the same parties,
whether correct on general principles or not, so long as the
facts on which the decision was predicated continue to be
the facts of the case before the court.541
2.

Effect of a foreign judgment/final order

(a)
If upon a specific thing, the judgment / final order
is conclusive upon title to the thing
(b)
If against a person it is presumptive evidence of a
right between the parties and their successors in interest by
subsequent title.
In either case, judgment / final order may be repelled by
evidence of want of jurisdiction, want of notice, collusion,
fraud, clear mistake of fact / law.542
3.

Effect of judgment against a surety

When a judgment is rendered against a party who stands as


surety for another, the latter (principal) is also bound from
the time he has notice of the action or proceeding, and an
opportunity at the suretys request to join in the defense.543

(c)
In any other litigation between the same parties or
their successors in interest, that only is deemed to have been
adjudged in a former judgment / final order which appears
on its face to have been so adjudged or which was actually
and necessarily included therein or necessary thereto.538
1.1
Paragraphs (a) and (b) are illustrative of the
concept of res judicata that is also known as bar by prior
judgment. This exists when between the first case where
judgment is rendered, and the second case where such
judgment is invoked, there is identity of parties, subject
matter, and cause of action. When all three are present, the
533

Supra, Section 43, Rule 39


Supra, Section 44, Rule 39
535
Supra, Section 45, Rule 39
536
Supra, Section 47 (a), Rule 39
537
Supra, Section 47 (b), Rule 39
538
Supra, Section 47 (c), Rule 39
534

539

Oropeza Marketing Corporation v Allied Banking


Corporation, 393 SCRA 278
540
Tan v Court of Appeals, 363 SCRA 444
541
Boiser v NTC, 169 SCRA
542
Supra, Section 48, Rule 39
543
Supra, Section 46, Rule 39
57

APPEALS
Rule 40 Appeals from MTC to RTC

WHERE CAN
APPEALED

AN

MTC

DECISION

BE

A judgment / final order of the Municipal Trial Court is


appealable to the Regional Trial Court exercising
jurisdiction over the area to which the Municipal Trial Court
pertains.

NOTE that the requirement for a Approval of record on


appeal548 the trial court may approve it, if no objection is
filed by the appellee or upon its motion / appellee direct
its amendment by the inclusion of omitted matters which
are deemed essential to the determination of the issue of law
or facts involved is the appeal.If amendment is ordered,
which the appellant must comply with within the period
stated, any extension or if none, within 10 days, submitting
the redrafted record for the approval of the Court. Where
both parties are appellants, they may file a joint record on
appeal.549
3.
Regardless of the mode of appeal, the adverse party
is to be furnished with a copy.

1.
In the appeal, the case title remains, but party
appealing is designated as appellant, while the adverse party
is designated as the party-appellee.544

WHEN PERFECTED

As determined by Section 9, Rule 41:

WHEN CAN APPEAL BE TAKEN

15 days after notice to the appellant. If record on appeal is


required 30 days after notice BUT period can be interrupted
by a motion for reconsideration or for new trial, though no
motion to extend time for its filing is allowed. 545
1.
Note the fresh period rule that is now applicable
to an appeal under Rule 40, Rule 41, Rule 43 and Rule 45,
which allows a party intending to appeal another 15 days
from receipt of an order denying a motion for
reconsideration or new trial to file an appeal 546

1.
If by notice of appeal, it is perfected upon the filing
of the notice in due time. The court loses jurisdiction upon
perfection and expiration of the time of appeal of other
parties.
2.
If by record on appeal, it is perfected upon approval
of record on appeal filed in due time. Court loses jurisdiction
upon approval and expiration of time to appeal of other
parties.
In either case, prior to transmittal of the records, the court
may issue orders:
(a) protection and preservation of the rights of the
parties not involving any matter litigated by the
appeal
(b) approve compromises
(c) permit appeals of indigent litigants
(d) order execution pending appeal (e)
(e) allow withdrawal of appeal.550 This is power is
known as RESIDUAL JURISDICTION

HOW IS APPEAL TAKEN

1.
By notice of appeal indicating parties, judgment or
final order appealed from statement of the material dates
showing timeliness of the appeal.
2.
By record on appeal in special proceedings or cases
allowing for multiple appeals, like probate or partition. The
record on appeal shall contain the following:
a.
b.

c.
d.

e.

Full name of the parties stated in the caption


including the judgment / final order from which
appeal is taken
In chronological order, copies of all pleadings,
petitions, motions, and all interlocutory orders as
are related to the appealed judgment / final order
for proper understanding of the issue.
Data to show that appeal was filed on time
If issue of fact is to be raised, it should include
reference the documentary evidence by exhibit
taken on the issue specifying the documentary
evidence by exhibit nos. or letters and testimonial
evidence by the names of the witnesses. If the
whole of it is included, a statement to such effect is
sufficient.
If more than 20 pages include a subject index 547

3.
In both cases, DOCKET FEES / OTHER FEES
are also to be paid to the clerk of court of the court that
rendered judgment. Proof payment of the same shall be
transmitted to the appellant court together with the records
/ record on appeal. 551
a.
Late payment of docket fees may be admitted when
a party shows a willingness to abide by the Rules by
immediately paying the docket fee six days after filing a
notice of appeal and beyond the period for perfecting an
appeal.552
b.
Where delay in the payment of docket fee was not
due to a desire to delay or defeat the ends of justice, late
payment thereof which causes no prejudice to anyone
should not result in the dismissal of the appeal.553
548

Supra, Section 7, Rule 41


Supra, Section 8, Rule 41
550
Supra, Section 4, Rule 40
551
Supra, Section 5, Rule 40
552
Mactan Cebu International Airport Authority v
Mangubat, 312 SCRA 466
553
Lopez v Court of Appeals, 75 SCRA 401
549

544

Supra, Section 1, Rule 40


Supra, Section 2, Rule 40
546
Neypes v Court of Appeals, GR 141524, September 14,
2005
547
Supra, Section 6, Rule 41
545

58

a.
THE RECORD/RECORD ON APPEAL IS
TRANSMITTED by the clerk of court within 15 days from
perfection, together with transcripts / exhibits, which he will
certify as complete. A copy of the transmittal shall be
furnished the parties.554

WHAT HAPPENS UPON TRANSMITTAL TO


THE RTC

Within 15 days from notice, appellant shall submit a


memorandum briefly discussing errors imputed to the lower
court, copy furnished the adverse party. Within 15 days from
receipt of appellants memorandum, appellee may file his
own memorandum. Failure of appellant shall be ground for
dismissal of the appeal. Upon filing / expiration, the case is
submitted for decision on the basis of the record in
Municipal Trial Court and the memoranda submitted by the
parties.555
1.
NOTE that if an appeal is taken from an order of
the lower Court dismissing the case without trial on the
merits, the Regional Trial Court may affirm or reverse it as
the case may be:
a.
In case it is affirmed and ground of dismissal is lack
of jurisdiction over the subject matter of the case, the
Regional Trial Court, if it has jurisdiction, shall try the case
on the merits as if the case was originally filed with it. In
case of reversal, it shall be remanded back for further
proceedings.
b.
If it was tried on the merits, without jurisdiction,
the RTC on appeal shall not dismiss the case if it has original
jurisdiction, but shall decide the case in accordance with
Section 7, without prejudice to the admission of amended
pleadings and additional evidence in the interest of
justice.556

RULE 41 APPEALS FROM


REGIONAL TRIAL COURTS
An appeal may be taken from a judgment /final order that
completely disposes of a case, or a particular matter therein
when declared by the Rules to be appealable BUT NO
APPEAL CAN BE TAKEN FROM:
(a)
Order denying a motion for new trial or
reconsideration. An appeal of judgment/final order is
remedy or certiorari under Rule 65
(b)
Order denying a petition for relief from judgment
or similar motion. Certiorari under Rule 65 is remedy
(c)
Interlocutory order. Certiorari under Rule 65 or
mandamus is remedy
(d)
Order disallowing or dismissing an appeal.
Mandamus or petition for relief from judgment is the
remedy

554

Supra, Section 6, Rule 40


Supra, Section 7, Rule 40
556
Supra, Section 8, Rule 40
555

(e)
Order denying a motion to set aside judgment by
consent confession, compromise on the ground of fraud,
mistake, duress or any ground vitiating consent. A petition
for relief or a petition to annul judgment under Rule 47 or
Certiorari under Rule 65 is the remedy
(f)
Order of execution. Certiorari under Rule 65 is the
remedy
(g)
Judgment / final order in separate claims,
counterclaims, cross claims 3rd party claims, while main
case is pending, unless the court allows an appeal therefrom.
The object is facilitate the trial of all issues.
(h)
Order dismissing an action without prejudice. The
remedy is to refile or certiorari under Rule 65.557
NOTE: That declaration of presumptive death not
appealable by the state, neither by other party. Remedy of
the spouse declared presumptively dead is to file affidavit of
reappearance. See Article 41, Family Code

WHAT ARE THE MODES OF APPEAL OF A


JUDGMENT OR FINAL ORDER OF A
REGIONAL TRIAL COURT558

(a)
Ordinary appeal refers to an appeal by notice of
appeal of the decision of the Regional Trial Court in cases
decided in the exercise of its original jurisdiction raising
question of fact or mixed questions of law and fact
1.
The period of ordinary appeal is 15 days from
notice of judgment / final order appealed from. If requiring
a record on appeal, it is 30 days. Said periods are
interrupted by a motion for new trial or reconsideration but
no extension of time for their filing is allowed. NOTE: That
in habeas corpus cases the period is 48 hours from notice of
judgment or final order559 NOTE ALSO: The application of
the fresh period rule.
2.
Appellate court docket fees / lawful fees shall be
paid within the period for taking an appeal to the clerk of
court of the court that rendered judgment BUT failure to pay
is a ground for dismissal of the complaint560
3.
If Appeal is by NOTICE OF APPEAL, it must
indicate parties, judgment or final order appealed from, and
include a statement of the material dates showing timeliness
of the appeal.561 or if by RECORD ON APPEAL it must
comply with the requirements as previously discussed in an
appeal from the Municipal Trial Court to the Regional Trial
Court.562
4.
PERFECTION
OF
APPEAL
IS
AS
DISCUSSED under Rule 40.563 Subsequently, it is the
DUTY OF CLERK OF COURT OF THE LOWER COURT
within 30 days after perfection of all appeals to:

557

Supra, Section 1, Rule 41


Supra, Section 2, Rule 41
559
Supra, Section 3, Rule 41
560
Supra, Section 13, Rule 41
561
Supra, Section 5, Rule 41
562
Supra, Sections 6,7,8, Rule 41
563
Supra, Section 9, Rule 41
558

59

(a) verify correctness of the original record / record on


appeal and make a certification as to correctness
(b) verify completeness of records transmitted to
appellate court
(c) If incomplete, take necessary measures as may be
required to complete the records, availing of the
authority that he or the court may exercise for this
purpose.
(d) transmit the records to the appellate court.
(e) then furnish parties of his transmittal. 564
4.1
IF EFFORTS TO COMPLETE FAIL, it shall be
indicated in the letter of transmittal which exhibits /
transcripts are not included, the reasons why they were not
transmitted and the steps taken to make them available.
4.2
It is likewise required that the transcripts be
transcribed565 and that the transmittal to include proof of
payment of docket fees.
4.3
Prior to transmittal of record / record on appeal,
the court may motu propio or on motion to dismiss the
appeal for having been take out of time OR for non payment
of docket and other lawful fees within the reglementary
period.566 If transmitted already, the Court of Appeals may
dismiss.

5.4

(a)
The Appellants Brief must be filed within 45 days
from notice that all evidence, documentary / testimonial are
attached to the record, 7 copies of the brief are to be filed
attaching proof of service of 2 copies to adverse party.572
Where there are several parties, each counsel representing
one or more but not all may be served with 1 copy. If several
counsel represent one party, service may be made on any
one of them.573
The CONTENTS OF THE APPELLANTS
BRIEF are:
(1) subject index
(2) assignment of errors
(3) statement of the case
(4) statement of facts
(5) statement of issues
(6) arguments
(7) relief
(8) if not by record on appeal, an appendix, copy
of judgment / final order appealed. 574
(b)
The Appellees Brief is to be filed within 45 days
from receipt of Appellants Brief. It is required that 7 copies
be filed with proof of service of 2 copies on appellant.

5.
Other procedural requirements and disposition of
the appeal are governed by Rule 44:
5.1
The title of the case shall remain, party appealing
shall be referred to as appellant / adverse party-appellee.567
Counsel / guardians ad litem of parties shall likewise be
considered as such in Court of Appeals, when others appear
or are appointed, notice shall be filed and furnished adverse
parties.568
5.2
If the RECORDS are not transmitted to the Court
of Appeals within 30 days after perfection of the appeal,
either party may file a motion with the Regional Trial Court,
with notice to the other, for transmittal.569
5.3
UPON RECEIPT BY THE COURT OF
APPEALS, the clerk shall docket the case and notify the
parties. If appeal is by record on appeal, within 10 days from
receipt of notice, appellant must file with the clerk of court 7
clearly legible copies of approved record on appeal and proof
of service thereof to adverse party of 2 copies. Any
unauthorized, alteration, omission or addition shall be
ground for dismissal of the appeal.570
The Clerk of the CA should also ascertain the completeness
of the records. If incomplete, he shall inform the court and
recommend measures to complete the record within the
shortest possible time BUT if it cannot be completed due to
insuperable or extremely difficult circumstances. The court,
on its own or upon motion, may declare the record sufficient
to decide issues and explain reason for such declaration.571

The CONTENTS OF APPELLEES BRIEF are:


(1) subject index
(2) statement of facts, either a statement of
acceptance or counter-statement of facts
(3) Arguments575
(4) A Reply Brief may be filed by appellant within
20 days from receipt of the Appellees Brief.576
NO EXTENSION OF TIME TO FILE BRIEFS
is allowed except for good and sufficient cause, and only if
filed before expiration of the time sought to be extended577
IN LIEU OF BRIEFS, MEMORANDA is
required in certiorari, prohibition, madamus, quo warranto,
hebeas corpus within a non-extendible period of 30 days
from notice that all evidence is attached to the record.
Failure of appellant to file his memoranda is ground to
dismiss the appeal.578
5.5
QUESTIONS OF LAW OR FACT MAY BE
RAISED in the appeal, whether or not a motion for new
trial has been filed and must within the issues framed by the
parties.579
As a rule, a party who deliberately adopts a certain theory
upon which the case is tried and decided by the lower court
will not be permitted to change his theory on appeal. Points
of law, theories, issues, and arguments not brought to the
attention of the lower court need not be , and ordinarily not
be, considered by a reviewing court, as these cannot be

564

572

565

573

Supra, Section 10, Rule 41


Supra, Section 11 and 12, Rule 41
566
Supra, Section 13, Rule 41
567
Supra, Section 1, Rule 44
568
Supra, Section 2, Rule 44
569
Supra, Section 3, Rule 44
570
Supra, Section 4, Rule 44
571
Supra, Sections 4 and 5, Rule 44

ONCE DONE, Briefs are to be filed:

Supra, Section 7, Rule 44


Supra, Section 11, Rule 44
574
Supra, Section 13, Rule 44
575
Supra, Section 14, Rule 44
576
Supra, Section 9, Rule 44
577
Supra, Section 12, Rule 44
578
Supra, Section 10, Rule 44
579
Supra, Section 15, Rule 44
60

raised for the first time at such late stage. Basic


considerations of due process underlie this rule.580

continues to have RESIDUAL JURISDICTION until the


same has been given DUE COURSE.584

6.
In Criminal Cases, note the possibility of the filing
of two notices of appeal when the penalty imposed by the
Regional Trial Court is life imprisonment or reclusion
perpetua, appeal is by notice to the Court of Appeals, and by
notice again to the Supreme Court. If the penalty is death, it
is automatically reviewed by the Supreme Court, but such
shall be made by the Court of Appeals, which shall render
judgment, then certify it to the Supreme Court, who will
then enter the same.581

5.
NOTE that except in cases covered by the Rule on
Summary Procedure, appeal shall stay the judgment / final
order unless Court of Appeals or the Rules provide otherwise

(b)
Petition for Review is an appeal to the Court of
Appeals of judgment / final order of the Regional Trial Court
in the exercise of its appellate jurisdiction under Rule 42
1.
It is initiated by the filing of a Verified Petition for
Review with the Court of Appeals, paying at the same time
to the Clerk of Court of Appeals the corresponding docket
fees and lawful fees, depositing 500 for costs, furnishing the
Regional Trial Court and adverse party with a copy of the
Petition.
2.
It is to be filed within 15 days from notice of
decision sought to be reviewed or denial of motion for new
trial or motion for reconsideration. UPON PAYMENT OF
DOCKET FEES
AND
DEPOSIT
AND
BEFORE
EXPIRATION OF THE PERIOD, the Court of Appeals may
grant an extension of 15 days. No further extension can be
given unless for the most compelling reason, but in no case
to exceed 15 days. 582
3.
FORM, CONTENTS, NUMBER OF COPIES. 7
copies are to be filed, indicating the original copy intended
for the Court of Appeals containing
(a) full names of parties, without impleading the
lower court / judges
(b) specific material dates indicating that it is filed
on time
(c) statement of matters, issues, specification of
errors of fact / law and reasons / arguments
relied upon
(d) accompanied by clearly legible duplicate copies
or true copies of judgment of the lower courts,
certified correct by Regional Trial Court clerk
of court, pleadings and other material portions
supporting the allegations of the petition
(e) certification against forum shopping /
verification.
NOTE: Failure to pay fees or comply with the
requirements shall be sufficient ground for dismissal.583
4.
The appeal is deemed PERFECTED upon timely
filing of the petition and payment of docket fees. The RTC
loses jurisdiction upon perfection of the appeal and lapse of
time to appeal by the other parties. The Regional Trial Court

6.

ONCE FILED, the Court of Appeals may:


(a) Require the respondent to file a comment, not a
motion to dismiss, within 10 days from notice
(b) Dismiss the petition if found to be patently without
merit, prosecuted manifestly for delay, or questions
raised therein are too unsubstantial to require
consideration.585

7.
The COMMENT should be filed in 7 copies,
accompanied by certified true copies of such MATERIAL
PORTIONS OF THE RECORD AND OTHER SUPPORTING
DOCUMENTS, stating:
(a) Statement of whether or not he accepts the
statement of matters
(b) Point out the insufficiencies / inaccuracies
(c) State reasons why it should not be given due
course. Copy of which must be served on adverse
party.586
8.
A petition is given DUE COURSE when upon
the filing of the comment or expiration of the period to file,
the Court of Appeals finds PRIMA FACIE that the lower
court has committed an error of fact / law that will warrant a
reversal / dismissal. CONSEQUENTLY, the Court of
Appeals, if it deems necessary, will order the elevation by the
clerk of the Regional Trial Court of the entire record within
15 days from notice.587
9.
IT IS SUBMITTED FOR DECISION after the
filing of last pleading or memorandum. Prior to that though,
the Court of Appeals may set it for oral argument / or
require memoranda to be submitted within a period of 15
days from notice.588
(c)
Appeal by Certiorari or Petition for Review on
Certiorari which should involve a pure question of law direct
to the Supreme Court under Rule 45
1.
A Question of Law is one that requires
interpretation or application of a law, while a Question of
Fact is one that pertains to a resolution of a factual dispute.
1.1
There is a question of law in a given case when the
doubt or difference arises as to what the law is pertaining to
a state of acts, and there is a question of fact when the doubt
arises as to the truth or falsity of alleged facts.589
2.
This is initiated by the filing of a Verified Petition
for Review on Certiorari raising only questions of law. This
mode of appeal is available to question judgment /
584

Supra, Section 8, Rule 42


Supra, Section 4, Rule 42
586
Supra, Section 5, Rule 42
587
Supra, Section 6, Rule 41
588
Supra, Section 9, Rule 42
589
Manila Bay Club Corporation v Court of Appeals, 245
SCRA 715
585

580

BPI v Leobrera, 416 SCRA 15


People v. Mateo, 433 SCRA 640, AM No. 00-5-03-SC,
October 15, 2004
582
Supra, Section 1, Rule 42
583
Supra, Sections 2 and 3, Rule 41
581

61

resolutions of the Court of Appeals, the Sandiganbayan, a


Regional Trial Court, and other Courts whenever authorized
by law.590
3.
The TIME FOR FILING is 15 days from notice of
the judgment, final / order, or resolution or of denial of
petitioners motion for new trial / reconsideration. On
motion and with full payment of docket fees and deposit of
costs, the Supreme Court on justifiable reason may grant an
extension of 30 days within which to file the petition.
Docket fees and proof of service of the petition on the lower
court and adverse party must accompany the filing of the
petition.591

and impose sanctions for non-filing / noncompliance or unauthorized filing.


This ALSO applies to a determination as to whether it
should be dismissed or denied.595 The RULE APPLIES
TO BOTH CIVIL / CRIMINAL ACTIONS, except in
cases where penalty is death, reclusion perpetua / life
imprisonment.596
7.
The exceptions to the general rule that only
questions of law may be raised in a petition for review are:
(a) when the conclusion is a finding grounded entirely
on speculation, surmises, or conjectures;
(b) when the inference made is manifestly mistaken,
absurd, or impossible;
(c) where there is a grave abuse of discretion;
(d) when the judgment is based on a misapprehension
of facts;
(e) when the findings of fact are conflicting;
(f) when the Court of Appeals, in making its findings,
went beyond the issue of the case and the same is
contrary to the admissions of both appellant and
appellee;
(g) when the findings of the Court of Appeals are
contrary to those of the trial courts;
(h) when the findings of facts are conclusions without
citation of specific evidence on which they are
based;
(i) when the facts set forth in the petition as well as in
the petitioners main and reply briefs are not
disputed by the respondents;
(j) when the finding of fact of the Court of Appeals is
premised on the supposed absence of evidence but
is contradicted by the evidence on record; and
(k) when the Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties
and which, if properly considered, would justify a
different conclusion.597

4.
18 copies of the petition are required to be filed,
indicating the original copy for the court. It should contain:
(a) full names of parties (petitioner / respondent)
without impleading court / judge
(b) indicate material dates
(c) concise statements of the matters involved and the
reason / arguments relied upon for the allowance
of the petition
(d) clearly legible copies of judgment / final order /
reconsideration or certified true copy and other
material portion supporting the record
(e) Certificate
against
forum
shopping
and
verification592
5.

UPON FILING, the Supreme Court can:

5.1

DISMISS
(1) for failure to comply with the requirements
regarding payment, proof of service, contents
and documents
(2) on its own initiative because it is without
merit, prosecuted for delay, or issues are too
unsubstantial to require consideration, OR

5.2
ALLOW REVIEW, which is not a matter of right
but is discretionary, when there are special / important
reasons therefor:
EXAMPLES:
(1) when the court a quo has decided a matter of
substance not therefore determined by the Supreme Court
or decided in a way not in accord with the law or applicable
decisions of the Supreme Court
(2) when court a quo has so far departed from the
accepted and usual course judicial proceedings, or so far
sanctioned such departure by a lower court, as to call for an
exercise of the power of supervision.593
6.

If given DUE COURSE, the Supreme Court can:


(a) Require elevation of the records / or specified
portions thereof within 15 days from notice 594
(b) Require filing of pleadings, briefs, memoranda or
documents as it may deem necessary within
periods / conditions it may consider appropriate

(c) By Petition for Review under Rule 43 in a case


decided by the Regional Trial Court sitting as a commercial
court.598
1.
Applies primarily to appeals from the Court of Tax
Appeals and other quasi-judicial agencies to the Court of
Appeals, but is not applicable to judgments / final orders
under the Labor Code.599
2.
The appeal can include questions of fact, law or
mixed questions of law and fact.600
3.
The appeal shall be taken within fifteen (15) days
from notice if the award, judgment, and final order of
resolution, or from the date of its last publication, if
publication is required by law for its effectivity, or of the
denial of the petitioners motion for new trial or
reconsideration duly filed in accordance with the governing
law of the court or agency a quo. Only one (1) motion for

595
590

Supra, Section 1, Rule 45


591
Supra, Sections 2 and 3, Rule 45
592
Supra, Section 4, Rule 45
593
Supra, Sections 5 and 6, Rule 45
594
Supra, Section 8, Rule 45

Supra, Section 7, Rule 45


Supra, Section 9, Rule 45
597
Martinez v Court of Appeals, 358 SCRA 38
598
A.M. No. 04-9-07-SC, September 14, 2004
599
Supra, Sections 1 and 2, Rule 43
600
Supra, Section 3, Rule 43
596

62

reconsideration shall be allowed. Upon proper motion and


the payment of the payment of the full amount of the docket
fee before the expiration of the reglementary period, the
Court of Appeals may grant an additional period of fifteen
(15) days only within which to file the petition for review. No
further extension shall be granted except for the most
compelling reason and in no case to exceed fifteen (15)
days.601
4.
All other procedural matters and requirements are
similar to a Petition for Review under Rule 42 EXCEPT that
an appeal under this Rule shall not stay the award,
judgment, final order or resolution unless the Court of
Appeals deems otherwise.602
7.
In summary judicial proceedings under the Family
Code, there is no reglementary period within which to
perfect an appeal, precisely because judgments rendered
thereunder, by express provision of Section 247 of the
Family Code, are immediately final and executory.603 Appeal
by notice of appeal is erroneous. The Court of Appeals
should have dismissed as it had no jurisdiction to review on
appeal. Per Justice Panganiban, Certiorari under Rule 65 is
the remedy of the State.

(4) certification against forum shopping (5)docket fees


/ deposit for cost.606 FAILURE TO COMPLY IS
SUFFICIENT GROUND FOR DISMISSAL OF
PETITIONS
A certified true copy is one the certification of which is made
by the proper clerk of court or his duly authorized
representative.607

HOW DOES THE


JURISIDICTION

COURT

ACQUIRE

Jurisdiction over the person or the respondent is acquired


by service of order or resolution indicating initial action on
the petition or voluntary submission to jurisdiction.608

ACTION TO BE TAKEN BY THE COURT OF


APPEALS

1.
The COURT may dismiss the petition outright
with specific reasons OR require the filing of a comment
within 10 days from notice. ONLY PLEADINGS REQUIRED
CAN BE FILED OTHERS CAN ONLY BE FILED WITH
LEAVE OF COURT.609

PROCEDURE WITH THE COURT


OF APPEALS

2.
If factual issues are to be resolved, the Court of
Appeals can conduct hearings or delegate reception of
evidence on such issues to any of its members or to an
appropriate court / agency / office. 610(Section 6, Rule 46)

RULE 46 ORIGINAL CASES


FILED WITH THE COURT OF
APPEALS

3.
If comment is not filed, it may be decided on the
basis of the record without prejudice to any disciplinary
action against disobedient party.611

Parties are to be designated as petitioner / respondent604


and is to apply to cases of Certiorari, Prohibition,
Mandamus, Quo Warranto and to petitions for annulment of
judgment under Rule 47605

4.
The COURT, IF THE PETITION IS NOT
DISMISSED OUTRIGHT:
4.1
Can call the parties / counsel to a preliminary
conference, the object of which is to :
(a) consider compromise agreements, except when
case is not allowed to be compromised
(b) define, simplify and clarify issues
(c) formulate stipulation of facts and admissions of
documentary exhibits, limit the number of
witnesses in cases falling within its original
jurisdiction or those within its appellate
jurisdiction where a motion for new trial is granted
on newly discovered evidence
(d) other matters that may aid in prompt disposition of
the case.612

CONTENTS OF PETITION FILING


EFFECTS OF NON COMPLIANCE

Petitions filed before the Court of Appeals must contain the


following:
(1) identification of the parties, a concise statement of
matters involved, the factual background of the
case, and the grounds relied upon for the relief
prayed for
(2) statement of material dates, AND IN A PETITION
UNDER RULE 65, material dates are dates of
notice of judgment or final order, when a motion
for new trial or reconsideration was filed, if any,
and when notice of denial was received
(3) clearly legible duplicate originals or certified true
copy of the attachments

4.2
Record of proceedings is made and a
RESOLUTION embodying actions shall be issued613 which
shall be binding upon parties and control subsequent
proceedings unless within 5 days from notice, it can be
606

Supra, Section 3, Rule 46


Paras v Baldado, 354 SCRA 141
608
Supra, Section 4, Rule 46
609
Supra, Section 5, Rule 46
610
Supra, Section 6, Rule 46
611
Supra, Section 7, Rule 46
612
Supra, Section 1, Rule 48
613
Supra, Section 2, Rule 48
607

601

Supra, Section 4, Rule 43


Supra, Section 12, Rule 43
603
Republic v Bernardez-Lorino, 449 SCRA 57
604
Supra, Section 1, Rule 46
605
Supra, Section 2, Rule 46
602

63

shown by valid cause why it should not be followed or there


is need for modifications to prevent manifest injustice614
4.3
At it own instance or by motion, to hear the parties
in oral argument on the merits of the case or on any
material incident AND is limited to such matters as the
court may specify in its order or resolution.615
4.4
In the conduct of oral arguments, unless
authorized, only 1 counsel may argue for a party. Duration,
sequence and all related matters shall be as directed by the
Court.616
4.5
MOTIONS THOUGH ARE NOT TO BE SET
FOR HEARING, AND UNLESS DIRECTED BY THE
COURT, NO HEARING OR ORAL ARGUMENTS shall
be allowed in support thereof. The adverse party may file
objections within 5 days from notice, then upon expiration
of the period, it is submitted for resolution.617

RULE 50 - GROUNDS FOR


DISMISSAL BY THE COURT OF
APPEALS

1.
An appeal under Rule 41 from the Regional Trial
Court to the Court of Appeals raising only questions of law
shall be dismissed as issues purely of law are not reviewable
by the Court of Appeals
2.
An appeal by notice of appeal instead of petition for
review from a Regional Trial Court exercising appellate
jurisdiction shall be dismissed
3.
An appeal erroneously taken to Court of Appeals
shall not be transferred but shall be dismissed outright.619

WITHDRAWAL OF AN APPEAL

An appeal may be withdrawn as of right at any time before


the filing of the appellees brief. Thereafter, only upon
discretion of the Court.620

RULE 51 - JUDGMENT
When submitted for judgment:
1.

IN ORDINARY APPEALS:
a.

In ALL CASES THAT COME BEFORE IT, and besides


on a finding that the case is without merit, prosecuted for
delay or issue is too unsubstantial to merit consideration,
ON MOTION OF THE COURT OR OF THE
APPELLEE, it may dismiss the petition on the basis of:
Failure of record on appeal to show on its face that
appeal was taken within period fixed by the Rules.
2. Failure to file notice of appeal or record on appeal
within period within the period prescribed by the
Rules.
3. Failure to pay docket fees as provided under
Section 5, Rule 40 and Section 4, Rule 41.
4. Unauthorized alterations, omissions, additions on
record on appeal as provided under Section 4, Rule
44
5. Failure of appellant to serve and file required
number briefs or memoranda within provided time
by these Rules
6. Absence of specific assignment of errors or page
references to the record as required by Section 13,
par. a,c,d, and f of Rule 44
7. Failure of appellant to take necessary steps for the
correction or completion of the records within time
limited by the Court
8. Failure to appear at preliminary conference under
Rule 48, or comply with orders, circulars or
directives of the Court without justifiable cause
9. The fact that order / judgment appealed from is
not appealable.618

DISMISSAL OF IMPROPER APPEAL

b.

1.

2.

Where no hearing on merits is held, upon filing of


the last pleading, brief, memoranda or expiration
of period to file.
Where a hearing is held, upon termination of
hearing or upon filing of the last pleading,
memoranda as may be required or permitted, or
expiration of period to file

IN ORIGINAL ACTIONS / PETITIONS FOR


REVIEW
a.
b.
c.

Where no comment is filed, upon expiration of the


period to file comment
Where no hearing, same as 1 (a)
Where hearing is held, same as 1 (b)621

3.
Judgment is rendered by members of the court who
participated in the deliberations on the merits before
assignment to a member for writing of the decision.622
4.
Participation of all 3 justices shall be necessary at
deliberation and unanimous vote shall be required for
pronouncement. If not, the clerk shall enter the vote of
dissenting justices in the record. Thereafter, Chairman of
the division refers it to the Presiding Justice, who will
designate 2 justices by raffle to sit temporarily and to form a
special division of five (5) justices. The participation of all is
required for deliberation. Concurrence of majority is
required for pronouncement.623
Note: That in rendering judgment, harmless errors or
those which do not affect the substantial rights of the
parties624 or errors that are not assigned will not be
619

614

Supra, Section 3, Rule 48


615
Supra, Section 1, Rule 49
616
Supra, Section 2, Rule 49
617
Supra, Section 3, Rule 49
618
Supra, Section 1, Rule 50

Supra, Section 2, Rule 50


Supra, Section 3, Rule 50
621
Supra, Section 1, Rule 51
622
Supra, Section 2, Rule 51
623
Supra, Section 3, Rule 51
624
Supra, Section 6, Rule 51
620

64

considered unless they affect jurisdiction, validity of


judgment, and of proceedings.625
4.1
HARMLESS ERROR DOCTRINE means that
any error or defect which does not affect substantial rights
will be disregarded by the reviewing court or tribunal. It is
followed to deal with evidence improperly admitted during
trial wherein its damaging quality and impact to the
substantial rights of the litigant are examined. If deemed
slight and insignificant, the error is disregarded.626 It is not a
ground for granting of a new trial or for setting aside,
modifying, or disturbing a judgment or final order unless the
refusal appears to the Court inconsistent with substantial
justice.
5.
JUDGMENTS OF THE COURT OF APPEALS
IN THE EXERCISE OF APPELLATE JURISDICTION
MAY affirm, reverse, or modify the judgment or final order
appealed from. It may also order or direct a new trial to be
held or that further proceedings be taken. 627 The decision
must state clearly and distinctly the findings of fact and
conclusions of law on which it is based, which may be
contained in the resolution itself or adopted from those set
forth in the judgment, final order appealed from.628
6.

PROCEDURE AFTER JUDGMENT IS:

6.1
After signing by the justices, it shall be delivered to
the clerk of court, who shall indicate thereon the date of
promulgation and cause true copies thereof to be served
upon the parties or counsel.629
2.
If no appeal, or motion for new trial or
reconsideration is filed within the period, the judgment or
final resolution shall be entered in the book of Entries of
Judgment. Judgment or final resolution shall be deemed
executory as of the date of entry. The record shall contain
the dispositive portion, signed by the clerk with a statement
that it is final and executory.630
3.
Execution shall as a rule issue upon a motion in the
proper court upon its entry. In appealed cases, where the
motion is filed with the Court of Appeals at the time that it is
in possession of the original records or record on appeal, the
resolution granting the motion shall be transmitted to the
lower court from which the case originated, together with
certified copy of the judgment to be executed, with a
directive to said court to issue the proper writ for its
enforcement. In original actions, the writ shall be
accompanied by a certified true copy of the entry of
judgment and addressed to appropriate officer for
enforcement.631

RULE 52- MOTIONS FOR


RECONSIDERATION BEFORE THE
CA
Judgments of the Court of Appeals can be the subject of
reconsideration within fifteen (15) days from notice
thereof, with proof of service to the adverse party. 632
1.
No second motion for reconsideration will be
entertained.633
2.
It is to be resolved within sixty (60) days from
submission for resolution634 and while pending, shall stay
the execution unless for good reason, court directs
otherwise.635

RULE 53- MOTION FOR NEW


TRIAL
It can be filed at any time after appeal from the lower
court has been perfected and before the Court of Appeals
loses jurisdiction, on the ground of newly discovered
evidence WHICH COULD NOT HAVE BEEN
DISCOVERED PRIOR TO THE TRIAL IN THE
COURT BELOW BY THE EXERCISE OF DUE
DILIGENCE AND WHICH IS OF SUCH A
CHARACTER AS WOULD PROBABLY CHANGE
THE RESULT. The motion must be accompanied by
affidavits showing the facts constituting the grounds and the
newly discovered evidence.636
The Court of Appeals shall then consider the
evidence and that adduced at the trial, to determine if it will
grant or refuse a new trial, or make such order, with notice
to both parties, as to the taking of further testimony, either
orally in court, by depositions, or render such other
judgment as ought to be rendered upon terms it may deem
just.637 IF GRANTED, the procedure shall be the same as
that granted by a Regional Trial Court.638
Motion should be resolved within 90 days from the date it is
declared to be submitted.639
OTHER MATTERS

632
625

Supra, Section 8, Rule 51


626
People v Teehankee, 269 SCRA 54.
627
Supra, Section 4, Rule 51
628
Supra, Section 5, Rule 51
629
Supra, Section 9, Rule 51
630
Supra, Section 10, Rule 51
631
Supra, Section 11, Rule 51

Supra, Section 1, Rule 52


Supra, Section 2, Rule 52
634
Supra, Section 3, Rule 52
635
Supra, Section 4, Rule 52
636
Supra, Section 1, Rule 53
637
Supra, Section 2, Rule 53
638
Supra, Section 4, Rule 53
639
Supra, Section 3, Rule 53
633

65

RULE 54 Internal Business


Allotment of cases shall be among the different
divisions for hearing and decision. The Court of Appeals En
Banc shall make proper orders or rules to govern allotment,
the constitution of such divisions, the regular rotation of
justices, filling of vacancies, and other matters. Such will
continue in force and repealed or altered by it or the
Supreme Court.640
A majority of the court shall constitute a quorum for
sessions en banc and a majority of the members present
shall be necessary to pass a resolution. Three members of a
division shall constitute a quorum for sessions of a division
and the affirmative vote of three members shall be necessary
for pronouncement of judgment/resolution, which shall be
reached in consultation among them before the writing of
the opinion by any member of the division.641

RULE 55 Publication of
Judgment/Final Order/Resolution
Judgments and Final Resolutions shall be published in
the Official Gazette and in the Reports officially authorized
by the Court, in the language originally written, together
with a syllabi. If not so published, a memoranda shall be
made and published in the like manner. 642 The publication
is to be prepared by the Reporter. 643 Those of the Supreme
Court are called Philippine Reports, while those of the Court
of Appeals are called Court of Appeals Reports. 644

1.1
Note that the correctness of the judgment
is not in issue as a petition for annulment is not in issue.648
1.2
It is a remedy that may be availed of by
those who are not even parties to the judgment or to annul
even judgments that have been fully executed.649
2.

(a) EXTRINSIC FRAUD but only when it was not


availed of or could have been availed of in a motion
for new trial or petition for relief OR
(b) LACK OF JURISDICTION
2.1
There is extrinsic fraud when the
unsuccessful party had been prevented from exhibiting fully
his case, by fraud or deception practice upon him by his
opponent, as keeping him away from the court, or where the
defendant never had knowledge of the suit, being kept in
ignorance by the acts of the plaintiff.650
3.
The period for its filing if based on extrinsic fraud
is within 4 years from its discovery, or if based on lack of
jurisdiction before it is barred by laches or estoppel.651

1.
An important condition for the availment is that
the petitioner failed to move for new trial, or appeal
from, or file a petition for relief against, or take other
appropriate remedies through no fault attributable to him. If
he failed to avail of the other remedies through his own
fault, he would then benefit from his inaction or
negligence.646 He must allege non availment of other
remedies through no fault of the petitioner, otherwise the
petition will be dismissed.647

640

Supra, Section 1, Rule 54


Supra, Section 2, Rule 54
642
Supra, Section 1, Rule 55
643
Supra, Section 2, Rule 55
644
Supra, Section 3, Rule 55
645
Supra, Section 1, Rule 47
646
Manipor v Ricafort, 407 SCRA 298
647
Ancheta v Ancheta, 424 SCRA 725

FILING / CONTENTS OF THE PETITION

Filing is by verified petition alleging therein with


particularity, the facts and the law relied upon for
annulment as well as supporting petitioners good and
substantial cause of action / defense, as the case may be.
Containing
(1) certified true copy of judgment / final order /
resolution shall be attached to the original copy
intended for the court
(2) affidavits of witnesses
(3) certification against forum shopping652

RULE 47-ANNULMENT OF
JUDGMENT
Annulment of judgment covers judgments of the
Regional Trial Court for which the ordinary remedies of new
trial, appeal, petition for relief or other appropriate remedies
ARE NO LONGER AVAILABLE THROUGH NO
FAULT OF THE PETITIONER645

It is available only on grounds of:

WHAT THE COURT OF APPEALS WILL DO


UPON FILING

1.
If no substantial merit, it will be dismissed
outright with specific reasons for such dismissal.
2.
If prima facie merit be found, it shall be given
due course and summons shall be served on the respondent.
IF SO, procedure in ordinary civil cases shall be followed but
reception may be referred to a member of the Court or a
Regional Trial Court judge.653

EFFECT OF JUDGMENT IN A PETITION


FOR ANNULMENT

It shall set aside the questioned judgment / final order /


resolution and render the same null and void without
prejudice to the refiling of the original action in the proper
court . However, where it is set aside by reason of extrinsic

641

648

Republic v Heirs of Sancho Magdato, 340 SCRA 115


Malolos v Dy, 325 SCRA 827
650
Leonardo v ST Best, 422 SCRA 347
651
Supra, Section 3, Rule 47
652
Supra, Section 4, Rule 47
653
Supra, Sections 5 and 6, Rule 47
649

66

fraud, the court on motion, may order the trial court to try
the case again as if a timely motion for new trial has been
granted therein.654
The prescriptive period for the refiling of the original
action shall be deemed suspended from the filing of such
original action until finality of the judgment of annulment.
HOWEVER, the prescriptive period is or shall not be
suspended where extrinsic fraud is attributable to the
plaintiff is original action.655

SCOPE OF RELIEF

It may include award of damages, attorneys fees and


other relief. If already executed, restitution or other relief as
justice / equity may warrant.656
IF ALSO APPLIES TO A PETITION TO ANNUL
JUDGMENT / FINAL ORDER OF A MUNICIPAL TRIAL
COURT BUT IS FILED WITH REGIONAL TRIAL COURT
and treated as an ordinary civil action.657 All sections except
Section 5 pertaining to dismissal or determination of prima
facie merit shall apply.

RULE 65 - CERTIORARI /
PROHIBITION AND MANDAMUS

WHAT IS CERTIORARI

Special Civil Action against a tribunal board or


officer exercising judicial or quasi-judicial function which is
alleged in a verified petition filed by an aggrieved party to
have acted without jurisdiction or in excess of its
jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction, AND
there is no appeal, or any plain speedy and adequate remedy
in the ordinary course of law, praying for the judgment
annulling / modifying the proceedings of such, tribunal
board officer, tribunal and granting such incidental reliefs as
law and justice may require.658

DISTINGUISHED FROM PETITION FOR


REVIEW ON CERTIORARI

Certiorari as distinguished from a Petition for


Review on Certiorari:
(a) In the former, the issue is whether the lower court
acted without, in excess of or with grave abuse of
discretion, while in the latter the issue is based on
questions of law
(b) in the former, it is addresses an interlocutory
order prior to appeal of a judgment when there is
no appeal or any other speedy or adequate remedy,

654

Supra, Section 7, Rule 47


Supra, Section 8, Rule 47
656
Supra, Section 9, Rule 47
657
Supra, Section 10, Rule 47
658
Supra, Section 1, Rule 65
655

while
the latter involves a review
judgment/final order/ resolution on the merits

of

(c) the former is filed within 15 days from notice of


judgment / order, while the latter is filed not later
than 60 days from notice of the
resolution
sought to be assailed or denial of a motion for
reconsideration
(d) the former shall stay the judgment /final order or
award, while the latter does not stay the order or
resolution unless a temporary restraining order or
preliminary injunction is issued
(e) In the former, the petitioner/respondent are the
original parties in the case and the lower court is
not impleaded, while in the latter, the aggrieved
party is the petitioner against the against the lower
court, agency and the prevailing party
(f) the former does not require the filing of a motion
for reconsideration prior to filing, while the latter
requires a motion for reconsideration prior to
filing
(g) in the former, the court is exercising appellate
jurisdiction, while in latter, it is exercising original
jurisdiction
(h) the former can only be filed in the Supreme court,
while the latter may be filed with Supreme Court,
Court of Appeals, or the Regional Trial Court

EXCEPTIONS TO REQUIREMENT AS TO
MOTION FOR RECONSIDERATION PRIOR
TO FILING A PETITION FOR CERTIORARI
UNDER RULE 65

(1) order is a patent nullity court a quo has no


jurisdiction
(2) questions have been raised in certiorari have been
duly raised and passed upon by lower court
(3) urgent necessity for resolution
(4) where a motion for reconsideration will be useless
(5) petitioner is deprived of due process, there is
extreme urgency for relief
(6) in criminal case, relief from order of arrest is
urgent, and grant of relief by trial court is not
probable
(7) proceedings in lower court are a nullity for lack of
due process
(8) issue is purely of law or where public interest is
involved.

WHAT IS PROHIBITION

Special civil action against a tribunal,


corporation, board, or person exercising JUDICIAL
QUASI JUDICIAL MINISTERIAL FUNCTION which
is alleged by an aggrieved party to be acting or about to act
without jurisdiction, in excess of its jurisdiction or with
grave abuse of discretion amounting to lack or excess of
jurisdiction and there is no appeal, or any plain, speedy and
adequate remedy in the ordinary course of the law praying
that judgment be rendered commanding the respondent to
desist from further proceeding in the action or proceeding

67

therein or otherwise granting such incidental reliefs as law


and justice may require.659

DISTINGUISHED FROM CERTIORARI

In CERTIORARI the object is to correct the respondents


acts by annulling proceedings, while in PROHIBITION it
is to prevent the commission of an act by stopping
proceedings. In the former, the assailed acts have already
been done, while in the latter the assailed acts are about to
be done or are being done.
In the former, the respondent performs judicial or
quasi- judicial, while in the latter, the respondent performs
judicial, quasi-judicial functions or ministerial functions.

WHAT CONSTITUTES JUDICIAL


QUASI-JUDICIAL POWER

AND

1.
The exercise of judicial function is to determine
what the law is, and what the legal rights of parties are,
with respect to a matter is controversy; and whenever an
office is clothed with that authority, and undertakes to
determine those questions, he acts judicially.660
2.
A quasi-judicial act or function is a judicial act or
function performed by one who is not a judge.

WHAT CONSTITUTES GRAVE ABUSE OF


DISCRETION

Capricious and whimsical exercise of judgment as may


be equivalent to lack or excess of jurisdiction.

WHAT IS MANDAMUS

A special civil action against a tribunal, corporation,


board, or officer alleged in a verified petition filed by an
aggrieved party to have unlawfully neglected the
performance of an act which the law specifically enjoins as a
duty resulting from an office, trust or station, or unlawfully
excluded another from the use and enjoyment of a right or
office to which such other is entitled, and there is no plain,
speedy or adequate remedy in the ordinary course of the
law, praying that judgment be rendered commanding the
respondent, immediately or at some other time specified by
the Court to do the act required to be done to protect the
rights of the petitioner, pay damages sustained by reason of
the wrongful acts.

(b) respondent unlawfully excludes another from the


use and enjoyment of a right or office to which such
other is entitled.
1.
The legal right of the plaintiff (petitioner) to
the thing demanded must be well defined, clear and certain.
The corresponding duty of the defendant (respondent) to
perform the required act must also be clear and specific.661
2.
Mandamus lies only to compel performance of a
ministerial duty but not to compel performance of a
discretionary duty.662 In granting mandamus, respondent is
commanded to perform the particular act or required to be
done and to pay the damages sustained by the petitioner by
reason of the wrongful acts of the respondent.
3.
An act is ministerial when officer or tribunal
performs in a given state of facts, in a prescribed manner in
obedience to the mandate of a legal authority without regard
to the exercise of his own judgment. If given the authority to
decide how and when, it is discretionary.
4.
Mandamus does not lie to correct / enforce
contractual obligations.

FROM

In MANDAMUS, the respondent is exercising


ministerial power and he has unlawfully neglected to
perform it or excluded a party from occupying or enjoying
the privilege of an office to which he is lawfully entitled and
the object is to COMPEL action, while in CERTIORARI,
the respondent is exercising judicial or quasi-judicial powers
without jurisdiction or with grave abuse of discretion
amounting to an excess or lack of jurisdiction and the object
is to CORRECT.
In PROHIBITION, the respondent is exercising
judicial, quasi-judicial or ministerial powers and he is acting
or about to act without jurisdiction or with grave abuse of
discretion amounting to an excess or lack of jurisdiction,
and the object is to PREVENT

WHEN MAY IT BE FILED

Not later than 60 days from notice of the assailed


judgment, order or resolution. BUT if a timely motion for
reconsideration is filed, whether required or not, the 60 days
period shall be counted from notice of the denial of the
motion.663 An extension may be granted for compelling
reasons but in no case to exceed 15 days.

2 ASPECTS OF MANDAMUS

The aspects of Mandamus are:


(a) respondent unlawfully neglects the performance of
an act which the law specifically enjoins as a duty
resulting from an office, trust or station OR

HOW
DISTINGUISHED
CERTIORARI / PROHIBITION

WHERE ELSE CAN BE FILED OTHER


THAN THE COURT OF APPEALS

The petition may be filed in the Supreme Court, the


Regional Trial Court if relates to an act / omission of a lower
court, corporation, board, officer or person within its

661
659

Supra, Section 2, Rule 65


660
Municipal Council of Lemery, Batangas v Provincial
Board of Batangas, 56 PHIL 260

Enriquez, Jr v Bidin, 47 SCRA 183


Calderon v Sol, 215 SCRA 876
663
Supra, Section 4, Rule 65, as Amended by A.M. 00-203-SC
662

68

territorial jurisdiction, or the Sandiganbayan, if in aid of its


appellate jurisdiction

IT IS FILED
APPEALS

WITH

THE

COURT

OF

RULE 66 -QUO WARRANTO


Quo Warranto is a special civil action brought by verified
petition in the name of the Republic of the Philippines
against:
(a) person who usurps, intrudes into or unlawfully
holds or exercises a public office, positions or
franchise
(b) public officer who performs an act that constitutes
a ground fro forfeiture of his office
(c) an association that acts as a corporation within the
Philippines without legally being incorporated or
without lawful authority to act.669

Whether or not in aid of its appellate jurisdiction, when


it involves acts / omissions of quasi-judicial body, unless
otherwise provided.

PARTIES TO BE IMPLEADED

In addition to the public respondents, the petition shall


also join the person/s interested in sustaining the
proceedings and it shall be the duty of the private
respondent to appear and defend both in his behalf and that
of the public respondents and cost awarded shall be against
private respondent only.
Unless otherwise directed by the court, the public
respondents shall not appear or file an answer or comment.
If elevated to a higher court the public respondents shall be
nominal parties, and unless directed shall not appear or
participate in the proceedings therein.664

ORDER TO COMMENT

If petition is sufficient in form or substance, a comment will


be required, not a motion to dismiss.665 Orders expediting
proceedings / temporary restraining order / injunctions for
the preservation of the rights of the parties may be issued
BUT the filing of the petition shall not interrupt the course
of the principal case unless a Temporary Restraining Order
or Injunction is granted enjoining the public respondent
from further proceeding.666

ACTIONS
THAT
SUSBEQUENTLY

MAY

BE

TAKEN

Court may hear or require filing of memoranda. If it


finds the allegations to be true, it shall render judgment for
the relief prayed for or to which petitioner is entitled.
It may also dismiss if patently without merit,
prosecuted manifestly for delay or issues are too
unsubstantial to require consideration.667 (Section 8)

SERVICE / ENFORCEMENT OF JUDGMENT

Certified copy of judgment shall be served in such


manger as the court may direct and disobedience thereto
shall be punished as contempt. Execution may issue for any
damages / cost in accordance with Section 1, Rule 39.668

1.

It literally means by what authority.670

2.
An individual can bring a quo warranto action in
his name when he is claiming to be entitled to a public office
or position usurped or exercised by another may bring an
action.671
3.
A quo warranto action MUST be commenced by
the Solicitor General or Public Prosecutor when directed by
the President or upon complaint or otherwise he has good
reason to believe that a cause can be established by proof. 672
If by complaint, a request for indemnity for expenses and
costs may be required to be deposited.673
3.
BESIDES the Court of Appeals, the action can be
brought before the Supreme Court, a Regional Trial Court
exercising jurisdiction over the area where the respondent/s
reside BUT, if the Solicitor General commences the action,
he may bring it before a Regional Trial Court in Manila, the
Court of Appeals or the Supreme Court.674
4.
WHEN FILED: within 1 year from accrual of the
cause of action (ouster or right to hold position) Damages if
recoverable must be in another action filed within 1 year
from entry of judgment.675
5.
PARTIES and CONTENTS of the petition:
When the action is against the person for usurping a public
office, position or franchise, the petition shall set forth the
name of the person who claims to be entitled thereto, if any
with an averment of his right to the same and that the
respondent is unlawfully in possession thereof. All persons
who claim to be entitled may be made parties, and their
respective rights may be determined in the same action.676
6.
REDUCTION OF TIME for pleadings and other
proceedings may be directed by the Court to secure the most
expeditious determination of the matters involved therein
consistent with the rights of the parties. It can also take
precedence over other civil matters pending before the
Court.677

669

Supra, Section 1, Rule 66


Tecson v Comelec, 424 SCRA 277
671
Supra, Section 5, Rule 66
672
Supra, Section 2, Rule 66
673
Supra, Section 3, Rule 66
674
Supra, Section 7, Rule 66
675
Supra, Sections 10 and 11, Rule 66
676
Supra, Section 6, Rule 66
677
Supra, Section 8, Rule 66
670

664

Supra, Section 5, Rule 65


Supra, Section 6, Rule 65
666
Supra, Section 7, Rule 65
667
Supra, Section 8, Rule 65
668
Supra, Section 9, Rule 65
665

69

7.
A JUDGMENT where the respondent is found
guilty of usurping, intruding into, or unlawfully holding or
exercising a public office, position or franchise shall state
that he be OUSTED AND ALTOGETHER EXCLUDED
THEREFROM, and that the rights of the PETITIONER OR
RELATOR, meaning the real party in interest, be
determined as justice requires.678 It can also include a
judgment for costs679
8.
The RIGHTS of a person entitled to public office
include the right to demand of the respondent all books and
papers in his custody or control appertaining to the office,
otherwise he may be punished for contempt.680Note: the
damages aspect must be brought in another action.

DISTINGUISH
BETWEEN
QUO
WARRANTO AND ELECTION PROTEST

In QUO WARRANTO the issue is the disqualification


/ ineligibility of the proclaimed candidate, in a PROTEST
the issue is an irregularity in the election.
If in the former, if the respondent is ineligible, the
petitioner does not occupy the position, while in the latter,
the protestant can occupy the position if he obtains a
plurality of the votes.

The only mode of appeal to the Supreme Court is by


Petition for Review on Certiorari, except in criminal cases
where penalty is death, reclusion perpetua, and life
imprisonment683
NOTE: Except in appeal of criminal cases where
penalty is death, reclusion perpetua, life imprisonment,
appeal by Notice of Appeal, will be dismissed 684 AND if by
certiorari from the Regional Trial Court to the Supreme
Court, raising issues of fact may be referred to the Court of
Appeals for decision or appropriate action. Determination of
the Supreme Court as to whether or not there are issues of
fact is FINAL.
All appealed cases shall be governed by and disposed of
in accordance with the applicable provisions of the
Constitution, Rule 45 (Petition for Review on Certiorari)
Rule 48 (Preliminary Conference), Sections 1 (When
submitted) 2 (Who renders judgment) and 5 to 11 ( Form to
Execution) Rule 51, Rule 52 (Motion for Reconsideration)
and Rule 56.685

(1) failure to take appeal within the reglementary


period
(2) lack of merit
(3) failure to pay docket and lawful fees
(4) failure to comply with requirements of proof of
service and documents
(5) failure to comply with any circular, directive or
order of the Supreme Court without justifiable
cause
(6) error in the choice or mode of appeal
(7) that it is not appealable to the Supreme Court686

In quo warranto involving an ELECTIVE POST the


issue is the eligibility of candidate elected, while in that
involving an APPOINTIVE POST the issue is the legality
of appointment.
In the former, if the respondent is found ineligible, the
found ineligible, 2nd highest vote getter, even if eligible
cannot be declared elected, while in the latter, the
resolution shall determine who has been legally appointed
and declare who is entitled to occupy the office.

ORIGINAL CASES

GROUNDS FOR DISMISSAL OF AN APPEAL

Motu propio or upon motion of respondent, it may be


dismissed on

DISTINGUISH
BETWEEN
QUO
WARRANTO AS TO NATURE OF POSITION

RULE 56 PROCEDURE IN THE


SUPREME COURT

APPEALED CASES

IF
SUPREME
COURT
OPINION
IS
EQUALLY DIVIDED OR NECESSARY
MAJORITY CANNOT BE OBTAINED

It will be deliberated further. If after deliberation, no


decision is reached, the original action commenced in the
court shall be dismissed. If appealed, it shall stand affirmed.
If on incidental matters, it shall be denied.687

The cases cognizable by the Supreme Court are


Certiorari, Mandamus, Prohibition, Quo Warranto, Habeas
Corpus, Disciplinary Actions against members of the
Judiciary and Attorneys, Cases affecting Ambassadors,
Public Ministers or Consuls.681
In resolving the cases, applicable rules in the Court of
Appeals are also applicable in the Supreme Court.682

678

683

679

684

Supra, Section 9, Rule 66


Supra, Section 12, Rule 66
680
Supra, Section 10, Rule 66
681
Supra, Section 1, Rule 56
682
Supra, Section 2, Rule 56

Supra, Section 3, Rule 56


Supra, Section 6, Rule 56
685
Supra, Section 4, Rule 56
686
Supra, Section 5, Rule 56
687
Supra, Section 7, Rule 56
70

PROVISIONAL REMEDIES
RULE 57 PRELIMINARY
ATTACHMENT

WHAT IS PRELIMINARY ATTACHMENT

It is a provisional remedy issued upon order of the court


where the action is pending to LEVY upon the properties of
the defendant therein, the same to be held thereafter by the
sheriff as security for the satisfaction of whatever judgment
might be rendered in favor of the attaching creditor.
It can also extend to property of the defendant in the hands
of 3rd persons or money owed by 3rd persons to the
defendant. This is also known as GARNISHMENT

4.1
The fraud should be committed either upon
contracting the debt or incurring the obligation sued upon
or in the performance thereof. A debt is fraudulently
contracted if at the time of contracting it, the debtor has a
preconceived plan or intention not to pay.688
5.
Action against a party who has removed or
disposed of his property, or is about to do so, with intent to
defraud creditors.
6.
Action against a party who does not reside and is
not found in the PI or on whom summons may be served by
publication.689

1.
Generally, by motion or is incorporated in the
complaint, accompanied by an affidavit, containing the
following:

If judgment has become final and executory, there is a final


attachment which is also known as Levy on Execution

(a) It is executed by the applicant / or some person


who is aware or personally knows the facts
(b) A sufficient cause of action exists
(c) That ground/s as stated in Section 1
(d) There is no other sufficient security for the claim
sought to be enforced by the action
(e) The amount due the applicant or value of the
property that he is entitled to recover, IS AS MUCH
AS THE SUM for which the ORDER is granted,
above all legal counterclaims690

WHEN CAN IT BE AVAILED OF

At any time before entry of judgment.

DISTINCTIONS BETWEEN PRELIMINARY


ATTACHMENT AND GARNISHMENT

In PRELIMINARY ATTACHMENT there are two


parties, the plaintiff or proper party and the defendant,
while in
GARNISHMENT, there is an additional party in the
person of the garnishee. In the former, property is actually
seized and a lien is created thereon, while in the latter, there
is no actual seizure.

GROUNDS

1.
Action for recovery of money or damages other
than moral / exemplary, on a cause of action that arise from
law, contract, quasi contract, delict, or quasi-delict against
a party who is about to depart from the Philippines with
intent to defraud creditors.
2.
Action for money or property embezzled or
fraudulently misapplied or converted to his own use by a
public officer, an officer of a corporation, or an attorney,
factor, broker, agent or clerk in the COURSE OF HIS
EMPLOYMENT as such, or by any person in a FIDUCIARY
CAPACITY, or for WILLFUL VIOLATION of such duty.
3.
Action to recover possession of property unjustly or
fraudulently taken, detained or converted when the
property, or any part thereof, has been concealed, removed
or disposed of to prevent its being found or taken by the
applicant or authorized person.
4.
Action against a party guilty of fraud in contracting
the debt or incurring the obligation upon which the action is
brought or in the performance thereof.

HOW APPLIED FOR

2.
A BOND must then be executed to the adverse
party in the amount fixed by the court, CONDITIONED
that the latter will pay all costs which may be adjudged and
all damages sustained by reason of the attachment, if the
court shall finally adjudge that the applicant was not entitled
thereto.691

WHEN ISSUED / BY WHOM

Either ex parte or on motion with notice and hearing, by the


court in which action is pending, by the Court of Appeals or
the Supreme Court and must require the Sheriff to attach so
much of the property in the Philppines of the party against
whom it is issued NOT EXEMPT FROM EXECUTION as
may be sufficient to satisfy claim UNLESS other party
makes a deposit or gives a bond in an amount equal to that
fixed in the order, exclusive of costs. Note: that several writs
may be issued at the same time to the sheriffs of the courts
of different judicial regions.692
1.
IT IS ISSUED EX-PARTE when the ground is
justified further by the fact that the defendant might
abscond or dispose of his property before the writ is issued.
It CAN TAKE PLACE even before he is summoned BUT
note that it cannot be enforced unless it is preceded or
contemporaneously accompanied by SERVICE OF
SUMMONS, together with complaint, application for
688

FCY Construction Group Incorporated v Court of


Appeals, 324 SCRA 270
689
Supra, Section 1, Rule 57
690
Supra, Section 3, Rule 57
691
Supra, Section 4, Rule 57
692
Supra, Section 2, Rule 57
71

attachment, affidavit, bond, order and the writ itself. This is


the PRIOR OR CONTEMPORANEOUS RULE. NOTE: An
Alias summons belatedly filed cannot be deemed to have
cured the FATAL DEFECT in the enforcement of the writ of
preliminary attachment.693
2.
The prior or contemporaneous rule does not apply
when:
(a) Summons could not be served personally or by
substituted service despite diligent efforts (b)
(b) Defendant is a resident but temporarily out of the
Philippines
(c) Defendant is a non-resident of the Philippines
(d) It is an action in rem or quasi in rem
2.1
An IN REM action is directly against the thing to
determine title to or affect its interest, while a QUASI-INREM is a proceeding against the thing for satisfaction a
claim against a person by adjudication of rights against
property over which jurisdiction can be obtained

BY WHOM / HOW ENFORCED

1.
By the sheriff, without delay and with all
reasonable diligence
1.1
Note that Rule 57 does not provide any lifetime for
a writ of preliminary attachment unlike a writ of execution.
694 What the law provides are enforcing the writ without
delay and making sheriffs return thereon without delay.
2.
He may attach only such property not exempt from
execution, as may be sufficient to satisfy the demand
UNLESS defendant makes a deposit or give a counter bond
in an amount equal to the bond fixed by the court or to the
value of the property attached. 695 NOTE: That the
attachment shall proceed nevertheless until there have been
proceedings undertaken to discharge the attachment. If
found to be insufficient / or is not filed, a NEW ORDER
OF ATTACHMENT MAY BE APPLIED FOR.696
3.
Attachment should be in accordance with the
following:
a.
If real property, it requires the filing with the Office
of the Register of Deeds of a copy of the order together with
notice that property or interest therein is attached.
b.
If personal property capable of manual delivery
taking it and safely keeping it in custody after issuance of
proper receipt.
c.
If stocks / shares / interest in companies, by
leaving with the president or managing agent a copy of the
writ and notice.
d.
If debts, credits, bank deposits and other like
personal properties not capable of manual delivery leaving
with such persons owing debt, holding credits or in
possession a copy of the writ and notice.

e.
If interest is in the estate of a decedent, by virtue of
his being an heir, legatee, or devisee, by serving the writ /
notice on executor or administrator.
f.
If in custodia legis copy of writ is filed if the
proper court or quasi-judicial agency and notice served on
the custodian of the property. 697
3.1
Effect of attachment of debts, credits and similar
personal property persons who have them are liable to the
applicant for the amount of such credits UNTIL the
attachment is discharged, judgment is satisfied or debts are
paid698 (Section 8)
3.2
Effect if on property belonging the estate of the
decedent, it will not impair the powers of the executor /
administrator or representative BUT they shall report the
attachment to the court when any petition for distribution is
filed and in the order made upon such petition the
property may be awarded to the heir / legatee / devisee , but
the property attached shall be delivered to the sheriff,
subject to the claim of the heir, legatee, devisee or person
claiming under him.699 (Section 9)
3.3
THERE CAN ALSO BE EXAMINATION OF
THESE PERSONS TO DETERMINE IF THERE ARE
PROPERTIES THAT MAY BE ATTACHED IN THEIR
POSSESSION700
4.
Sheriff shall also make a RETURN without delay,
containing full statement of his proceedings under the writ
and a complete inventory of property attached, together with
a copy of a counter-bond if one has been filed, furnishing
copies thereof on the applicant.701
5.
Property is to be held and disposed of in the
following manner:
a.

If judgment is recovered by the attaching party

1.
Paying to obligee proceeds of all sales of perishable
property or others sold pursuant to order of the court as
shall be necessary to satisfy the judgment.
2.
If there is a balance, selling so much of the real or
personal property as may be necessary to satisfy the balance,
if enough for that purpose, remains in the hands of the
sheriff or clerk of court. Note that there can be an EARLY
SALE if it is made to appear to the court in which the action
is pending that the property attached is perishable, or that
the interest of all the parties to the action will be subserved
by the sale of the properties at public auction, the proceeds
to be deposited with the court to abide the judgment.702
3.
Collecting from all persons having in their
possession credits belonging to the obligor or debts due him
A REPORT / RETURN of all proceedings must be filed
with the court and copies furnished all parties.703
697

Supra, Section 7, Rule 57


Supra, Section 8, Rule 57
699
Supra, Section 9, Rule 57
700
Supra, Section 10, Rule 57
701
Supra, Section 6, Rule 57
702
Supra, Section 11, Rule 57
703
Supra, Section 15, Rule 57
698

693

Mangila v Court of Appeals, 387 SCRA 162


Roque v Court of Appeals, 93 SCRA 540
695
Supra, Section 5, Rule 57
696
Supra, Section 12, Rule 57
694

72

4.
If there be a balance, he proceeds to collect as upon
ordinary execution. If there be a surplus, it must be
returned.
5.
If judgment becomes executory, the surety/ies shall
become charged on the counter-bond and bound to pay the
judgment obligee upon demand, the amount due on the
judgment, which amount can be recovered after notice and
summary hearing in the same action.704
6.
If money was deposited in LIEU of a bond, it is
applied under direction of the Court and if judgment is
against attaching party, the whole sum deposited is
refunded. 705
b.

If judgment is for adverse party

1.
All proceeds of sales or money collected by the
sheriff and property attached shall be delivered to the party
whose properties were attached and the order of attachment
discharged.
2.
Claim for damages before trial, perfection of
appeal, or judgment becomes executory, with due notice to
the attaching party and surety setting forth the facts showing
his right to damages in instances where there is improper,
irregular or excessive attachment, are to be awarded after
hearing and is to be included in the judgment in the main
case.
2.1
If the judgment favorable to him is rendered by the
appellate court, he must claim the damages during the
pendency of the appeal by filing the application in the
appellate court, before the judgment becomes executory.
The appellate court may allow the application to be heard
and decided by the trial court.
2.2
NOTHING, likewise, prevents the party against
whom attachment is issued from recovering in the same
action the damages awarded to him from any property of
the attaching party not exempt from execution should the
bond or deposit be insufficient.706

WHAT ARE THE REMEDIES OF A PARTY


WHOSE PROPERTIES ARE ATTACHED

1.
Discharge the attachment by making a cash deposit
or counter bond.707

3.
Claim for damages on account of improper,
irregular, or excessive attachment. 709
NOTE: a motion to discharge / dissolve is not allowed if the
preliminary attachment is issued on a ground which is at the
same time the applicants cause of action as that is
TANTAMOUNT TO TRIAL ON MERITS.
Example: action for money, property embezzled, party
guilty of fraud in incurring the obligation

IS

Claim is to be initiated by affidavit. Upon filing, the sheriff


not under obligation to keep the property, unless attaching
party files a bond. No claim for damages for the taking or
keeping of the property may be filed / enforced against the
bond unless the action is filed within 120 days from date of
the filing of the bond. 710

RULE 58 PRELIMINARY
INJUNCTION
A Preliminary Injunction is an order granted at any
stage of an action or proceeding prior to judgment or final
order, requiring a party or a court, agency, person to refrain
from a particular act or acts. It may also require the
performance of an act, if such it is called a preliminary
mandatory injunction.711
1.
Note that Injunction may also exist as a cause of
action. This is best illustrated by the appropriate remedies
for obligations to do or not to do. Obligations to do, the
remedy is specific performance. Obligation not to do,
remedy is injunction.

PRIMARY PURPOSE OF INJUNCTION


Is to preserve the status quo or the last actual, peaceable,
uncontested status which precedes the pending controversy.

WHO MAY GRANT

Court where the action is pending. If pending in the Court of


Appeals or the Supreme Court, it may be issued by the Court
or any member thereof.712

NOTE: That bond may be subject to RECOVERY by


attaching party;
2.
Discharge or set aside the attachment on the
ground that it was improperly issued or irregularly enforced,
OR bond is insufficient OR what has been attached is
excessive, the discharge is only for the excess.708

WHAT HAPPENS IF PROPERTY


CLAIMED BY A 3RD PERSON

GROUNDS FOR ISSUANCE

1.
The applicant is entitled to the relief demanded,
and the whole or part of the relief consists in restraining the
commission / continuance of the act/s complained of, or in
requiring the performance of an act/s, for a limited period or
perpetually.
2.
The commission / continuance / non performance
of the act/s during litigation will probably work injustice to
the applicant, OR

704

Supra, Section 17, Rule 57


Supra, Section 18, Rule 57
706
Supra, Section 20, Rule 57
707
Supra, Section 12, Rule 57
708
Supra, Section 13, Rule 57
705

709

Supra, Section 20, Rule 57


Supra, Section 14, Rule 57
711
Supra, Section 1, Rule 58
712
Supra, Section 2, Rule 58
710

73

3.
That a party, court, agency or a person is doing,
threatening, or is attempting to do or is procuring or
suffering to be done, some act/s in violation of the rights of
the applicant respecting the subject of the action and
tending to render judgment ineffectual.713

REQUISITES FOR
INJUNCTION

ISSUANCE

OF

AN

1.

Existence of a right to be protected

2.

Acts against which the injunction is to be directed


are violative of the right

These must clearly appear in the allegations in the complaint


OTHERWISE it may be ground for its outright denial
for INSUFFICIENCY, which is apparent in the application
itself OR if already granted, may be dissolved.714

MAY IT BE ISSUED EX-PARTE

Its issuance requires


(1) a hearing
(2) reception of evidence with opportunity to cross
(3) finding that prohibited acts are threatened to be
committed or that irreparable injury would be
inflicted upon the applicant.
IF GREAT / IRREPARABLE INJURY WOULD
RESULT BEFORE THEN: the Court BY WAY OF
EXCEPTION TO THE RULE ON NON EX-PARTE
ISSUANCE (1) can issue a Temporary Restraining Order
for 20 days after a summary hearing OR If it is of extreme
urgency, it may issue ex-parte a 72 hour Temporary
Restraining Order. The lifetime of a Temporary Restraining
Order is 20 days if issued by a trial court, 60 days if issued
by the Court of Appeals, and until further orders if issued by
the Supreme Court. Note that within the 20 day effectivity
period of the Temporary Restraining Order, the court must
order the party or person to show cause why the injunction
should not be granted, determine also whether or not the
preliminary injunction should be granted, and accordingly
issue the order. 715

(3) if included in a complaint / initiatory pleading it


shall be raffled only after notice to and in the
presence of the adverse party. In any event, notice
shall be preceeded by or contemporaneously
accompanied by service of summons, together with
affidavit
and
bond
(PRIOR
OR
CONTEMPORANEOUS RULE) but such will not
be applicable if defendant / adverse party cannot
be served personally / substituted service,
temporarily absent or is a non-resident. The matter
shall thereafter be acted upon only after all parties
are heard in a summary hearing, conducted within
24 hours after sheriffs return of service.716

OBJECTION

1.
The application may be denied or if granted,
dissolved, upon showing of insufficiency, or while entitled
to an injunction, the issuance or continuance thereof will
cause irreparable damage to the person enjoined while the
applicant can be compensated for the damages and a bond is
filed OR if it appears that extent is too great, it may be
modified. 717
2.
It may also be dissolved on objection to the
sufficiency of the bond, or upon finding of insufficiency, the
failure of surety to justify or filing of a sufficient bond. If it
the objection is to the bond of the party enjoined, the
injunction shall be granted or restored. 718

JUDGMENTS OR ORDERS IN INJUNCTION

1.
ORDER
EFFECTIVE

DISCHARGING

IS

IMMEDIATELY

2.
A Final Injunction is granted if it appears that the
applicant is entitled to have the act/s permanently enjoined
or confirming the preliminary mandatory injunction.719
3.
Judgments eventually rendered
damages against a party and sureties. 720

may

include

4.
No injunction can issue against the acts of a coequal court, except in a 3rd party claim where claimant
vindicates his right by a separate action.

HOW OBTAINED

RULE 59 RECIEVERSHIP

A preliminary injunction or temporary restraining


order is obtained upon
(1) filing of a verified application showing facts
entitling the applicant to the relief demanded,
(2) unless exempted, filing of a bond in an amount
fixed by the court, to the effect that applicant will
pay all damages that may be sustained if the court
should finally decide that applicant was not entitled
thereto

GROUNDS
FOR
DISSOLUTION

WHEN IS A RECEIVER APPOINTED

1.
When it appears from a verified application, and as
such other proof as the court may require, that the party
applying for the appointment of a receiver has an interest in
the property or fund which is the subject of the action or
proceeding as such property / fund is in danger of being lost,
716

Supra, Section 4, Rule 58


Supra, Section 6, Rule 58
718
Supra, Section 7, Rule 58
719
Supra, Section 9, Rule 58
720
Supra, Section 8, Rule 58
717

713

Supra, Section 3, Rule 58


Supra, Section 6, Rule 58
715
Supra, Section 5, Rule 58
714

74

removed or materially injured unless a receiver be appointed


to administer and preserve it.
2.
When it appears in an action by the mortgagee for
the foreclosure of mortgagee that the property is in danger
of being wasted, dissipated or materially injured and that
its value is probably insufficient to discharge the mortgage
debt or that the parties have so stipulated in the mortgage
contract.
3.
When after judgment, to preserve the property
during the pendency of an appeal, or to dispose of it
according to the judgment, or to aid in execution when the
execution is returned unsatisfied or the judgment obligor
refuses to apply his property in satisfaction of the judgment
or otherwise carry the judgment into effect.
4.
Whenever in other cases, it appears that the
appointment of a receiver is the most convenient and
feasible means of preserving, administering or disposing of
property in litigation.

WHO APPOINTS A RECEIVER

The court where action is pending or the Court of Appeals,


the Supreme Court or a member thereof. During appeal, the
appellate court may allow the application for the
appointment to be filed in the court of origin, which can also
decide on the same to be subject to the control of said
court.721
1.
A receiver of real or personal property, which is the
subject of the action, may be appointed by the court when it
appears from the pleadings or such other proof as the judge
may require, that the party applying for such appointment
has:
(a) an actual interest in it, and
(b) that such property is in danger of being lost,
removed, or materially injured; or whenever it
appears to be the most convenient and feasible
means of preserving or administering the property
in litigation.722
2.
A receiver is a person appointed by the court or by
a quasi-judicial administrative agency, in behalf of all the
parties for the purpose of preserving and conserving the
property and preventing its possible destruction or
dissipation, if it were left in the possession of any of the
parties. It is the duty of the receiver to administer the assets
of the receivership estate; and in the management and
disposition of the property committed to his possession, he
acts in a fiduciary capacity and with impartiality toward all
interested persons.723
3.
A receiver is not an agent or representative of any
party to the action. He is an officer of the court exercising
his functions in the interest of neither plaintiff nor
defendant, but for the common benefit of al the parties in
interest. He performs his duties subject to the control of
the Court, and every question involved in the receivership
may be determined by the court taking cognizance of the
721

Supra, Section 1, Rule 59


Commodities Storage & Ice Plant Corp. versus Court of
Appeals, 274 SCRA 439
723
Arranza versus B.F. Homes, Inc., 333 SCRA 799
722

receivership proceedings. Thus, unauthorized contracts of a


receiver do not bind the court in charge of receivership.
They are the receivers own contracts and not recognized by
the court as contracts of the receivership.724

WHAT ARE
RECIEVER

THE

POWERS

OF

THE

Subject to the control of the court, HE CAN:


(a) Bring and defend actions in his own name
(b) Take and keep possession of the properties in
controversy
(c) To receive rent
(d) Collect debts, including power to compound and
compromise them, to pay debts
(e) Make transfers
(f) To divide money or other property
(g) Other acts as may be authorized by the court
1.
Funds though may only be invested by order of the
court upon written consent of all parties. No action may be
filed by or against the receiver without leave of court to
prevent harassment.725
2.
Should there be refusal / neglect to deliver property
to a receiver it is punishable by contempt and shall be
liable for the money or value of the property, plus damages
sustained as a consequence of the refusal / neglect.726

HOW APPLIED FOR

1.
By verified application. Note that more than 1
receiver may be applied for and appointed by the court.
NOTE: That receivership may be a principal action or an
ancillary remedy.
2.
If application is granted the receiver shall await
the filing by the applicant of a bond executed to the party
against whom the application is presented in an amount
fixed by the Court to the effect that the applicant will pay
such party all damages that he may sustain by reason of the
appointment in case the same has been procured without
SUFFICIENT CAUSE and the court in its discretion
may require an additional bond to be filed as further
security for damages.727
3.
The APPLICATION may be denied or receiver
discharged when the adverse party files a bond executed to
the APPLICANT to the effect that such party will pay to the
applicant all damages he may suffer by reason of acts,
omissions or other matters specified as grounds in the
application If may also be discharged if it is shown that
appointment was obtained without sufficient cause.728
4.
BEFORE entering upon his duties, the receiver
shall be sworn to perform them faithfully and shall file a
bond executed to such person and in amount fixed by the

724

Pacific Mechandising Corp., versus Consolacion


Insurance & Surety Co., Inc., 73 SCRA 564
725
Supra, Section 6, Rule 59
726
Supra, Section 7, Rule 59
727
Supra, Section 2, Rule 59
728
Supra, Section 3, Rule 59
75

court, to the effect that he will faithfully discharge his duties


and obey orders from the Court.729

NOTE: Not the probable value as declared by the applicant.


Should there be a dispute, it is to be resolved by the Court.

5.
Copies of bonds ( Applicant and Reciever OR
Adverse Party) shall be served on each interested party
who may except to its sufficiency or the surety. If found to be
insufficient or is not justified and a bond sufficient in
amount and surety is not filed, the application shall be
denied and the receiver discharged. If adverse partys bond
is the one excepted to or found insufficient, the receiver shall
be appointed or reappointed as the case may be.730

2.
Filing of bond in double the value of the property
for return of the property to the adverse party and payment
of such sum as he may recover from the applicant

WHEN TERMINATED

When the court, motu propio or upon motion, shall


determine that the necessity for a receiver no longer exists, it
shall alter due notice, settle all accounts, direct delivery of
the funds / property in his possession to the person
adjudged to be entitled to receive them and order the
discharge of the receiver from further duty. He is to be
allowed compensation as circumstances will warrant to be
taxed against defeated party or apportioned as justice may
require.731
Any judgment may include the amount, if any, to be
awarded any party upon any bond.732

3.
UPON FILING OF AFFIDAVIT AND BOND,
the writ of replevin shall issue requiring the sheriff to
forthwith take the property in custody.734
3.1
IN TAKING CUSTODY if concealed, he may
demand delivery, if not delivered, he may cause the building
/ enclosure to be broken. Once in possession, it must be kept
in a secure place and shall be responsible for its delivery to
the party entitled thereto upon receipt of his fees and
expenses.735

1.
Objection to the sufficiency of the bond / surety but
he cannot immediately require delivery OR at any time
before delivery to the applicant, by filing a bond (redelivery
bond) executed to the applicant in double the value of the
property as stated in the applicants affidavit.

RULE 60 REPLEVIN

WHAT IS REPLEVIN

It is a form of a principal remedy and provisional remedy /


relief. It is also a mixed action partly in rem as far as the
claim for recovery of personal property and in persona as far
as the claim of damages, the object of which is recovery of
possession of personal property applied for at the
commencement of the action or at any time before answer
by the party praying for recovery of personal property.733

1.

HOW

Filing of Affidavit containing the following:


(a) that applicant is the owner of the property claimed,
particularly describing it, or is entitled to
possession of the same
(b) that property is a wrongfully detained by the
adverse party, alleging the cause of detention
according to the best of his knowledge, information
or belief
(c) that property has not been distrained or taken for a
tax assessment or payment of fine or seized under
execution, preliminary attachment or in custodia
legis, or if so seized, it is exempt from seizure /
custody
(d) actual market value

REMEDIES FOR RETURN OF PROPERTY

MANNER OF DISPOSITION BY SHERIFF

1.
If within 5 days after taking of the property, the
adverse party does not object to sufficiency of the bond /
sureties OR he objects and the court affirms its approval of
the bond or approves a new bond OR if he requires return
but his bond is objected to (adverse party) and he does not
forthwith file an approved bond THE SHERIFF SHALL
DELIVER THE PROPERTY TO THE APPLICANT IF FOR
ANY REASON IT IS NOT DELIVERED, IT MUST BE
RETURNED TO ADVERSE PARTY.736
2.
If claimed by a 3rd PARTY by affidavit, the sheriff is
not bound to keep and deliver the property unless applicant
/ agent on demand of the sheriff files a bond approved by
the Court to indemnify the 3rd party claimant in a sum not
less than the value of the property under replevin. In case of
disagreement as to value, the court shall determine the
same. Note that no action on the bond may be enforced
unless filed within 120 days from filing.
The sheriff shall not be liable for damages for the
taking and keeping of the property to any such 3rd party if
the bond is filed. Nothing also prevents the 3rd party
claimant or the applicant from vindicating their rights or
claims in the same action or in a separate action.
If writ is issued in the name of RP, no bond is
required and the sheriff is to be represented by the
SOLGEN and damages so adjudged are paid out of the
National Treasury. 737

729

Supra, Section 4, Rule 59


Supra, Section 5, Rule 59
731
Supra, Section 8, Rule 59
732
Supra, Section 9, Rule 59
733
Supra, Section 1, Rule 60
730

734

Supra, Sections 2 and 3, Rule 60


Supra, Section 4, Rule 60
736
Supra, Section 6, Rule 60
737
Supra, Section 7, Rule 61
735

76

3.
SHERIFF must make return within 10 days after
taking of the property.738
4.
The JUDGMENT BY THE COURT shall include
a determination who has a better right of possession to and
value of the property and render judgment in the alternative
for delivery thereof to the party entitled or its value in case
delivery cannot be made, and also for damages as either
party may prove, with costs. Any amount awarded a party
upon any bond shall be claimed, ascertained and granted as
provided by Section 20 of Rule 57.739
5.
A WRIT OF REPLEVIN may be served anywhere
in the PI

RULE 61 SUPPORT PENDENTE


LITE

3.2
IF DENIED, the principal case shall be tried and
decided as early as possible.744

It is also available in criminal cases when:


(a) child is born to offended party allegedly because of
the crime
(b) civil liability arising from the criminal action
includes support for the offspring
(c) civil aspect has not been waived, reserved or
instituted prior to filing of criminal action.

SPECIAL CIVIL ACTIONS


RULE 62 - INTERPLEADER

PROCEDURE:

1.
Upon filing of verified application it shall be
served on the adverse party, who shall have 5 days to
comment unless a different period is fixed by the court. It
shall also be verified and accompanied by affidavits,
depositions, authentic documents.742

WHEN PROPER

Whenever conflicting claims upon the same subject matter


are or may be made against a person who claims no interest
whatever in the subject matter, or an interest which in whole
or in part is not disputed by the claimants, he may bring an
action against the conflicting claimants to interplead and
litigate their several claims among themselves.747

2.
Hearing shall then be conducted no more than 3
days after comment is filed or the period expires.743
3.
Court shall determine provisionally the pertinent
facts and render such orders as justice and equity may
require, having due regard to the probable outcome of the
case and such other circumstances.

RESTITUTION

IF upon judgment / final order The court finds that


the person who has been providing support is not liable
therefor it shall order the recipient to return the amounts
paid plus interest from dates of actual payment without
prejudice to the right of the recipient to obtain
reimbursement in a separate action from the person legally
obliged to give support. Should the recipient fail to
reimburse, the person who provided the same, may, in a
separate action, seek reimbursement thereof from the
person obliged to give support.746

This application may be filed successively by the offended


party, her parents, grandparents, guardian or the State in
the corresponding criminal case during its pendency.741

HOW ENFORCED

If adverse party fails to comply, the court shall, motu propio


or on motion, issue an order of execution without prejudice
to his liability for contempt. ALSO, if support be paid by a
3rd person, after due notice and hearing in the same case, he
may obtain a writ of execution to enforce his right of
reimbursement against the person ordered to provide
support.745

WHEN FILED AND HOW

At the commencement of the proper action or proceeding or


at any time prior to a judgment or final order a verified
application may be filed by a party stating the grounds for
the claim and the financial conditions of both parties,
accompanied by affidavits, depositions, or other authentic
documents in support thereof.740
1.

3.1
IF GRANTED, it shall fix the amount of money to
be provisionally paid or such other forms or support as
should be provided taking into account the necessities of
the applicant AND resources or means of the adverse party
AND the terms or mode for providing support.

PROCEDURE:

1.
Upon filing of the complaint, the court shall issue
an order requiring the conflicting claimants to interplead
with one another. If the interest of justice requires, it may
order the subject matter be paid or delivered to the court.748

738

Supra, Section 8, Rule 61


Supra, Sections 9 and 10, Rule 61
740
Supra, Section 1, Rule 61
741
Supra, Section 6, Rule 61
742
Supra, Section 2, Rule 61
743
Supra, Section 3, Rule 61
739

744

Supra, Section 4, Rule 61


Supra, Section 5, Rule 61
746
Supra, Section 7, Rule 61
747
Supra, Section 1, Rule 62
748
Supra, Section 2, Rule 62
745

77

2.
Summons shall then issued to claimants, together
with a copy of the complaint and order.749
3.
Within the time for the filing of an answer, motions
to dismiss may be filed, if denied the claimant must file an
answer within the period remaining but in no case less than
5 days. If not, he may be declared in default and thereafter
the court may render judgment barring him from any claim
in respect of the subject matter. They may also file counterclaims, cross-claims, 3rd party claims, and other responsive
pleadings.750
4.
After the pleadings of the conflicting claimants
have been filed, pre-trial conducted, the court shall proceed
to determination and adjudication of their respective claims.
The docket and other lawful fees paid by a party who filed
the complaint, as well as costs / expenses of litigation shall
constitute a lien or charge upon the subject matter, unless
the court orders otherwise.751

RULE 63 DECLARATORY RELIEF


AND SIMILAR REMEDIES

2.
If involving validity of a statute, executive order,
regulation, or any other government regulation. The solicitor
general shall be notified and is entitled to be heard upon
such question.754
3.
If local government ordinance, the corresponding
attorney / prosecutor of the Local Government Unit shall be
similarly notified and heard. If alleged to be
unconstitutional, the Solicitor General shall be notified and
heard.755

ACTION BY THE COURT

Except in actions falling under the 2nd paragraph of Section


1, the court, motu propio, or on motion, may refuse to
exercise the power to declare rights and to construe
instruments in any case WHERE A DECISION WOULD
NOT TERMINATE THE CONTROVERSY ON
UNCERTAINTY THAT GAVE RISE TO THE ACTION,
or in any case, WHERE THE DECLARATION /
CONSTRUCTION is not NECESSARY and PROPER under
the circumstances.756

WHAT IS DECLARATORY RELIEF

It is a special civil action brought before the Regional Trial


Court ONLY by a person interested in a DEED, WILL,
CONTRACT or OTHER WRITTEN INSTRUMENT, or
whose rights are affected by a STATUTE, EXECUTIVE
ORDER OR REGULATION, ORDINANCE or any
government regulation BEFORE BREACH THEREOF,
asking the court to DETERMINE ANY QUESTION
OF CONSTRUCTION OR VALIDITY arising, and for a
declaration of his rights OR duties thereunder.752
1.
ACTIONS
for
REFORMATION
OF
INSTRUMENT, TO QUIET TITLE OR REMOVE
CLOUDS THEREFROM, or to CONSOLIDATE
OWNERSHIP UNDER Art 1607 NCC may be brought as
civil actions for declaratory relief.
2.
NOTE
THAT
AN
ACTION
FOR
DECLARATORY RELIEF may be brought only before a
breach / violation of the statute or instrument. If already
brought AND a breach / violation is committed before final
termination, it is converted into an ordinary civil action. The
parties may then file such pleading as may be necessary or
proper.753

RULE 64 REVIEW OR
JUDGMENTS / FINAL ORDER OF
THE COMELEC AND COA
A judgment / final order of COMELEC / COA is to be
brought by the aggrieved party to the Supreme Court under
Rule 65 but the period for filing is 30 days from notice of the
judgment or final order sought to be reviewed. The filing of a
motion for new trial / recon if allowed under the procedural
rules of the COMELEC / COA will toll the period. If denied,
the aggrieved party only has the remaining period which is
no case shall be less than 5 days in any event, reckoned from
notice of denial.757
1.
Note that only judgments/final orders of the
COMELEC en banc can be brought to the SC. What is
exercised is the power of review.
2.
The bringing of a petition, shall not stay the
execution of the judgment, final order or resolution unless
directed otherwise by the Supreme Court.758

RULE 67 EXPROPRIATION

WHO ARE THE ALLOWED PARTIES

1.
All persons who have or claim an interest which
would be affected by the declaration shall be made parties
and NO DECLARATION shall as except as otherwise
provided in these RULES prejudice the rights of persons not
parties to the action.

SEE RP vs. Gingoyon GR 166429, Jan 14, 2005


namely:

1.

749

754

750

755

Supra, Section 3, Rule 62


Supra, Sections 4 and 5, Rule 62
751
Supra, Sections 6 and 7, Rule 62
752
Supra, Section 1, Rule 63
753
Supra, Section 6, Rule 63

Rule 67 contemplates two (2) separate final orders,


order of expropriation (Section 4, Rule 67)
and

Supra, Section 3, Rule 63


Supra, Section 4, Rule 63
756
Supra, Section 5, Rule 63
757
Supra, Sections 1,2, and 3, Rule 64
758
Supra, Section 8, Rule 64
78

2.

order of just compensation (Section 8,


Rule 67).

An expropriation suit is incapable of pecuniary


estimation and falls within the jurisdiction of the Regional
Trial Courts. (Barangay San Roque vs. Heirs of Francisco
Pastor, 334 SCRA 127).

deposit with the court of FIFTEEN PERCENT of the Fair


Market Value based on the current tax declaration.

1.

Public purpose which will justify expropriation of


property generally means such activity which will serve as
convenience, safety, welfare, advantage, or benefit to the
entire community, and not to a particular individual, class or
group of persons.
Public use is one which confers some benefit or
advantage to the public. It is not confined to actual use by
the public. It includes the right of use by the public, whether
it is exercised by one or some or many members of the
public.
Public use contemplates indirect public benefit or
advantage (Estate of Salud Jimenez vs. Phil. Export
Processing Zone, 349 SCRA 240). It must be considered in
its general concept of meeting a public need or a public
exigency. Manosca vs. CA, 252 SCRA 412).
At present, whatever may be beneficially employed
for the general welfare satisfies the requirement of public
use. (Reyes vs. NHA, 395 SCRA 494).

WHAT IS EXPROPRIATION

The taking of private property for public purpose


upon the payment of just compensation. It is also known as
exercise of the power of eminent domain.

HOW EXERCISED

Filing of a verified complaint which shall state with certainty


the right and the purpose of expropriation, describing the
real / personal property sought to be expropriated, joining
as defendants all persons claiming / owning or occupying
any part thereof or interest therein. Note that the subject can
be either real / personal property.759

WHERE FILED

Regional Trial Court, regardless of value as it is an action


which is incapable of pecuniary estimation.

UPON FILING,
POSSESSION

MAY

PLAINTIFF TAKE

2.
of:

UPON FILING AND SERVICE

The DEFENDANT MAY FILE:


(a) A Manifestation that he has no objection or defense
to the action, OR
(b) An Answer stating all objections and defenses to
the taking of the property. No, counterclaim, cross
claim or 3rd party complaint shall be allowed in the
answer or any subsequent pleading.761
AFTER, the case now proceeds to a determination

2.1
Authority of the plaintiff to expropriate. Thereafter,
the court may dismiss the petition or issue an order of
expropriation. The order is appealable BUT SHALL NOT
PREVENT
DETERMINATION
OF
JUST
COMPENSATION,IF
GRANTED
AND
PLAINTIFF
CANNOT DISMISS OR DISCONTINUE EXCEPT ON
TERMS THAT COURT DEEMS JUST AND EQUITABLE as
there is entry already.762
2.2
NOTE the right of plaintiff to enter into the
property and appropriate shall not be DELAYED by an
APPEAL. But if appellate court determines that no right of
expropriation exists. It shall order the RTC to enforce
restoration and determine the damages that the defendant
sustained.763
3.
Just compensation is then determined by no more
than 3 court appointed commissioners. If the Court accepts
their report, it will render judgment based thereon. Such
judgment is also appealable.764
3.1
IF upon determination of just compensation, the
ownership is uncertain or claims are conflicting, the court
may order sum / sums paid to be given to the Court for the
benefit of the person adjudged in the same proceeding to be
entitled thereto BUT, payment will be required to be given to
the defendant or the court before plaintiff can enter into or
retain the property.765
4.
The JUDGMENT shall state definitely, by an
adequate description, the particular property or interest
therein expropriated and the nature of the public use or
purpose for which it is expropriated, a certified copy of
which judgment shall be recorded in the registry of deeds
and its effect shall to be shall to be vest in the plaintiff title to
the real estate for public use or purpose.766

Plaintiff, upon making a deposit in or with an authorized


government depository of an amount equal to the assessed
value of the property for purposes of taxation may take
possession of the real property. If it involves personal
property, its value as provisionally ascertained.760
1.
Note that under Section 19 of the Local
Government Code, the LGU can take possession upon

759
760

Supra, Section 1, Rule 67


Supra, Section 2, Rule 67

761

Supra, Section 3, Rule 67


Supra, Section 4, Rule 67
763
Supra, Section 11, Rule 67
764
Supra, Sections 5,6,7, and 8, Rule 67
765
Supra, Section 9, Rule 67
766
Supra, Section 13, Rule 67
762

79

The plaintiff shall have the right to enter into the property
and expropriate for public use or retain it if already entered.
If defendant or counsel absent themselves from the court or
decline to receive the amount, it shall be deposited in the
court and shall have the effect of ACTUAL PAYMENT.767

WHO PAYS FOR COSTS

All costs, except that incurred by rival claimants, shall be


paid by the plaintiff unless an appeal is taken therefrom by
the owner of the property and the judgment is affirmed.
Costs shall include the fees of the commissioners.768

RULE 68 FORECLOSURE OF
REAL ESTATE

RIGHT OF PLAINTIFF UPON PAYMENT /


TENDER

WHAT SHOULD BE STATED


COMPLAINT/PETITION

IN

THE

Date and due execution of the mortgage


Its assignments, if any
Names/residences of mortgagor/mortgagee
Description of the mortgaged property
Statement of the date of the note or other
documentary evidence of the obligation secured by
the mortgage
(f) Amount claimed to be unpaid
(g) Name/residences of persons having or claiming an
interest in the property subordinate in right to that
of the holder of the mortgage, all of whom shall be
made defendants.769

WHAT COURT CAN DO

After trial, if the court shall find the facts to be true, it shall
ASCERTAIN THE AMOUNT DUE THE PLAINTIFF AND
RENDER JUDGMENT FOR THE SUM WITH AN ORDER
FOR IT TO BE PAID BY ADVERSE PARTY TO THE COURT
OR JUDGMENT OBLIGEE WITHIN A PERIOD OF NOT
LESS THAN NINETY (90) DAYS NOR MORE THAN ONE
HUNDRED TWENTY DAYS (120) FROM ENTRY OF
JUDGMENT, AND THAT IN DEFAULT, THE PROPERTY
SHALL BE SOLD AT PUBLIC AUCTION. This period is
known as MORTGAGORS EQUITY OF REDEMPTION. 770

OF
OF

Equity of Redemption is the equitable right of the


mortgagor to redeem, while Right of Redemption is the
statutory right of the mortgagor to redeem.
The former is available before auction sale, while the
latter is available after auction sale.
The former is available only judicial foreclosure, while the
latter is available only in extra-judicial foreclosure, but by
exception is allowed in judicial foreclosure when the
mortgagee is the PNB or a bank or a banking institution.
The period for the exercise of the former is within 90 days
but no more than 120 days from entry of foreclosure
judgment, while in the latter it is one year from redemption
is within one year from date of registration of the sheriffs
certificate of sale, except when the mortgagor is a juridical
person, in which case, the right to redeem must be exercised
until, but not after, the registration of the certificate of sale
with the applicable register of deeds which in no case shall
be more than three months after foreclosure, whichever is
earlier.771

The complaint in foreclosure of a mortgage or other


encumbrance shall set forth:
(a)
(b)
(c)
(d)
(e)

DISTINGUISHING
EQUITY
REDEMPTION
FROM
RIGHT
REDEMPTION

WHAT HAPPENS IF NOT PAID

1.
Upon motion, the court shall order the property
sold in the manner prescribed under Rule 39, such SALE
shall not affect the rights of persons holding prior
liens/encumbrances on the property or parts thereof.
2.
Upon motion, sale shall be CONFIRMED, and
such shall operate to divest the rights in the property of all
the parties to the action and to vest their rights in the
purchaser, subject to such rights of redemption as may be
allowed by law.
2.1
Note that when judicial foreclosure is resorted to
there is no right of redemption EXCEPT when the law
allows a redemption.
EXAMPLE: Section 47 of the Philippine General Banking
Law which allows a one year period for redemption.
3.
Upon finality of the order of confirmation or upon
expiration of the period of redemption when allowed by law,
the purchaser at auction is entitled to possession unless a
third party is holding it adversely to the judgment obligor, in
which case, the purchaser at the auction sale may secure a
writ of possession from the Court ordering the sale.772
3.1
What is to be registered is the order of
confirmation. If there is no right of redemption, the title of
the mortgagor is cancelled and a new one issued in the name
of the purchaser.
3.2
If with right of redemption, the annotation is to
await final deed of sale executed by Sheriff.773 (Section 7)

767

Supra, Section 10, Rule 67


Supra, Section 12, Rule 67
769
Supra, Section 1, Rule 68
770
Supra, Section 2, Rule 68
768

771

Section 47, Philippine General Banking Law


Supra, Section 3, Rule 68
773
Supra, Section 7, Rule 68
772

80

4.
PROCEEDS OF THE SALE shall, after
deducting the costs, be paid to the persons foreclosing the
mortgage. If there be a balance or residue, it shall be paid to
the junior encumbrancers, in the order of priority
ascertained by the Court, if none or there still be a balance
or residue after payment, to the mortgagor.774
5.
If debt is not all due, as soon as a sufficient portion
of the property has been sold to pay the total amount, the
sale shall terminate. Afterwards, no more shall be sold, BUT
if property cannot be sold in portions, the entire property is
to be sold with rebate of interest if proper when the full debt
is paid.775
6.
Deficiency judgments, if there is a balance, upon
motion, the court shall render judgment against the
defendant for the balance, upon which execution may issue.
If balance is due at the time of rendition of judgment OR at
such time as the remaining balance becomes due under the
terms of the original contract, which time shall be stated in
the judgment.776
7.
Note that the provisions of Section 31 as to use of
premises by obligor, Section 32 as to rents still due the
obligor, and Section 34 as to recovery of price if sale is not
effective of Rule 39 are applicable as far as the former are
not inconsistent.777

RULE 69 PARTITION

OBJECT OF PARTITION

Separate, divide and assign a thing that is held in common


among those to whom it may belong. The remedy may be
availed of regardless of whether it involves real or personal
property, or both

WHO CAN FILE AND HOW

Any person, having the right to compel partition of real


estate may file, setting forth therein the nature and extent of
his title, adequate description of the property, joining as
defendants all other persons interested in the property.778
1.
An action for partition and accounting under Rule
69 is in the nature of a quasi in rem779.

PROCEDURE

1.
If after trial, it finds for the plaintiff, it will order
partition. Thereupon, if they AGREE, the parties may
undertake the partition among themselves by proper
instruments. The court shall thereupon confirm the
partition so agreed by the parties. Such partition and order

of confirmation shall then be recorded in the registry of deed


of the place where the property is situated.
A final order decreeing partition and accounting may be
appealed by the party aggrieved thereby.780
2.
If they fail to agree, the Court shall appoint not
more than 3 commissioners, commanding them to set-off to
the plaintiff and each party in interest such part and
proportion of the property as the court will direct.781
2.1
Before discharging their duties, the commissioners
shall take an oath that they will faithfully discharge their
duties, and in so doing they shall view and examine the real
property , shall hear the preferences of the parties,
determine the comparative value of the property, and shall
set apart the same to the parties in lots or parcels as will be
most advantageous and equitable, having due regard to the
improvements, situation and quality of the different parts
thereof.782
2.2
If the property cannot be divided without prejudice
to the interest of the parties, the court may order it assigned
to one of the parties willing to take the same, provided he
pays to the other parties such amount as determined by the
commissioners to be equitable, unless one of the interested
parties asks that the property be sold instead.783
2.3
A report should thereupon be made by the
commissioners and filed with the court, which shall then
give the parties 10 days within which to file heir objections
to the findings. No proceeding shall pass title to the property
or bind the parties until the court shall have accepted the
report and rendered judgment thereon. Note though that the
court has the option to accept or re-commit the matter to the
commissioners.784
3.
If actual partition of the property is made,
judgment shall state definitely the metes and bounds and
adequate description of the property, the particular portion
allocated to each party and its effect is to vest to each party
in the action in severalty the portion of real estate assigned
to him. If the whole property is assigned to one after
payment to the others, judgment has the effect of vesting in
the party making payment the whole of the real estate free
from any interest of the other parties. If the property is sold
and proceeds divided, judgment has the effect of vesting the
property or portion sold in the purchaser free from any
interest of the parties to the action.785
Judgment may include recovery from the other of
just share of rents and profits received by the other from the
real estate in question786 and costs equitably apportioned
among the parties.787

780

Supra, Section 2, Rule 69


Supra, Section 3, Rule 69
782
Supra, Section 4, Rule 69
783
Supra, Section 5, Rule 69
784
Supra, Sections 6 and 7, Rule 69
785
Supra, Section 11, Rule 69
786
Supra, Section 8, Rule 69
787
Supra, Section 10, Rule 69
781

774

Supra, Section 4, Rule 68


Supra, Section 5, Rule 68
776
Supra, Section 6, Rule 68
777
Supra, Section 8, Rule 68
778
Supra, Section 1, Rule 69
779
Valmonte v Court of Appeals, 52 SCRA 92
775

81

DISTINGUISHING BETWEEN ORDER OF


PARTITION
AND
JUDGMENT
OF
PARTITION

The Order of Partition finding that plaintiff is


entitled to partition, and after which, if the parties agree,
they may partition subject to confirmation by the court,
while Judgment of Partition is the judgment rendered
pursuant to the commissioners report after it is accepted by
the court. BOTH THOUGH ARE APPEALABLE

RULE 70 - FORCIBLE ENTRY,


ILLEGAL/UNLAWFUL DETAINER

WHAT IS FORCIBLE ENTRY

An action brought when a person is deprived of possession


of land/building by FORCE, INTIMIDATION, THREAT,
STRATEGY, OR STEALTH.

WHAT IS UNLAWFUL DETAINER

An action brought by a lessor, vendor, vendee or other


person
against whom possession of land/building is
unlawfully withheld after expiration or termination of the
right to hold possession, by virtue of a contract, express or
unpaid. Such action must be brought within one year after
withholding such possession. Also known as an accion
interdictal which seeks to recover possession de facto or
physical, actual or material possession.
Note that it is the character or nature of the defendants
possession which will determine which of the two actions is
appropriate.

UNLAWFUL DETAINER
ENTRY
OR
ACCION
DISTINGUISHED

OR FORCIBLE
INTERDICTAL

From Accion Publiciana which is a plenary action to


recover right of possession that is brought after one year
from accrual of the cause of action in a Regional Trial Court
and Accion Reivindicatoria which is an action to recover
ownership, including possession.
Note: In addition to restitution of possession, damages and
costs may also be recovered.788

WHAT IS REQUIRED FOR THE ACTION TO


BE FILED

1.
In Illegal Detainer ,unless otherwise stipulated, the
lessor can proceed against lessee only after demand to pay
or comply with the conditions of the lease and to vacate is
made upon the lessee, or by serving written notice of such
demand upon the person found within the premises, or by
posting such notice on the premises if no person is found
thereon and the lessee fails to comply within 15 days in the
case of land or 5 days in case of building.789
788
789

Supra, Section 1, Rule 70


Supra, Section 2, Rule 70

1.1
If action is terminate the lease due to the expiration
of its term, demand is not a prerequisite.790
2.

No demand is required in Forcible Entry cases.

WHEN, WHERE FILED AND NATURE OF


PROCEEDINGS

Cases of Forcible Entry/Unlawful Detainer are to be filed


within one year from date of actual entry or date of last
demand before the Municipal Trial Court and shall be
covered by the Rules on Summary Procedure, irrespective of
the amount of damages or unpaid rentals, unless they are
covered by agricultural tenancy laws or otherwise provided
by law.791

PROCEDURE TO BE FOLLOWED

1.
The only allowable pleadings are the complaint,
compulsory counterclaim and cross-claim pleaded in the
answers and answers thereto. All pleadings are to be
verified.792
2.
Upon filing of the complaint, the court may, from
an examination of the allegations in the complaint and such
evidence attached thereto, dismiss the complaint on any of
the grounds for a motion to dismiss which are apparent
therein. If not dismissed, it shall proceed to issue
summons.793
3.
If summons is issued, the defendant shall file his
answer within 10 days from receipt, serving a copy thereof to
the plaintiff. Affirmative or negative defenses not pleaded
are deemed waived, except lack of jurisdiction over the
subject matter. Crossclaims or counterclaims not asserted
are barred. If the answer contains crossclaims or
counterclaims, answers thereto are to be filed within 10 days
from service of the answer in which they are pleaded.794
4.
Failure to answer the complaint within the period
above provided, the court, motu proprio, or on motion of
the plaintiff, shall render judgment as may be prayed for
therein: Provided, however, That the court may in its
discretion reduce the amount of damages and attorneys fees
claimed for being excessive or otherwise unconscionable.
This is without prejudice to the applicability of Section 3,
Rule 9 of the Rules of Court, if there are two or more
defendants.795
5.
A preliminary conference is then scheduled not
later than 30 days after the last answer is filed. The
provision of Rule 18 on pre-trial shall be applicable to the
790

Lanuza v Munoz, 429 SCRA 562


Supra, Section 3, Rule 70
792
Supra, Section 4, Rule 70, Article II, Section 3 (a) and
(b), Rules on Summary Procedure
793
Supra, Section 5, Rule 70, Article II, Section 4, Rules on
Summary Procedure
794
Supra, Section 6, Rule 70, Article II, Section 5, Rules on
Summary Procedure
795
Supra, Section 7, Rule 70, Article II, Section 6, Rules on
Summary Procedure
82
791

preliminary conference
provisions of this Rule.

unless

inconsistent

with

the

section pertaining to referral to the Lupon for


conciliation. The case may then be dismissed
WITHOUT PREJUDICE and may be revived
upon showing of compliance.800 The filing of a
motion to dismiss after an answer is filed does not
violate the rules. What is proscribed is a motion to
dismiss that stops the running of the period for the
filing of an answer and cause undue delay.801
(b) Motion for a bill of particulars;

The failure of the plaintiff to appear in the


preliminary conference shall be a cause for the dismissal of
his complaint. The defendant who appears in the absence of
the plaintiff shall be entitled to judgment on his
counterclaim in accordance with Section 6 hereof. All crossclaims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff
shall be entitled to judgment in accordance with Section 6
hereof. This Rule shall not apply where one of two or more
defendants sued under a common cause of action who had
pleaded a common defense shall appear at the preliminary
conference.

(c) Motion for new trial, or for reconsideration of a


judgment, or for reopening of trial;
(d) Motion for extension of time to file pleadings,
affidavits or any other paper;
(e) Memoranda;

No postponement shall be granted except for highly


meritorious grounds and without prejudice to sanctions
which the court may deem to impose.796

(f) Petition for certiorari, mandamus, or prohibition


against any interlocutory order issued by the court;

6.
Within 5 days after the termination of the
preliminary conference, an order shall be issued by the court
stating the following matters:
(a) Whether the parties have arrived at an amicable
settlement, and if so, the terms thereof
(b) The stipulations or admissions entered into by the
parties
(c) Whether, on the basis of the pleadings and the
stipulations and admissions made by the parties,
judgment may be rendered without the need of
further proceedings, in which event the judgment
shall be rendered within thirty (30) days from
issuance of the order
(d) A clear specification of material facts which remain
controverted; and
(e) Such other matters intended to expedite the
disposition of the case.797
7.
Within 10 days from receipt of the order, the
parties shall submit the affidavits of their witnesses,
evidences and position papers setting forth the law and the
facts relied upon.798
The affidavits submitted shall only state the facts
of direct personal knowledge of the affiant which are
admissible in evidence and must indicate their competence
to testify. A violation may subject the party or counsel to
disciplinary action and will be cause to expunge the
inadmissible affidavit or portion thereof from the record.799
8.
The following petitions, motions, or pleadings are
PROHIBITED and shall not be allowed to be filed:
(a) Motion to dismiss the complaint except on the
ground of lack of jurisdiction over the subject
matter, or failure to comply with the preceding
796

Supra, Section 8, Rule 70, Article II, Section 7, Rules on


Summary Procedure
797
Supra, Section 9, Rule 70, Article II, Section 8, Rules on
Summary Procedure
798
Supra, Section 10, Rule 70, Article II, Section 9, Rules
on Summary Procedure
799
Supra, Section 14, Rule 70, Article II, Section 20, Rules
on Summary Procedure

(g) Motion to declare the defendant in default;


(h) Dilatory motions for postponement;
(i) Reply;
(j) Third-party complaints; and
(k) Interventions.802
9.
Note that a PRELIMINARY MANDATORY
INJUNCTION may be granted by the court upon motion
presented within 5 days from the filing of the complaint to
restore him in possession, which should be decided by the
court within 30 days from filing thereof803
AND upon motion of the plaintiff, within 10 days from
perfection of an appeal to the Regional Trial Court to restore
him in possession if the court is satisfied that the appeal of
the defendant is FRIVOLOUS or DILATORY, or that his
(plaintiffs) appeal is prima facie meritorious.804
10.
The court shall then render judgment within 30
days after receipt of the last affidavits and position papers,
or the expiration of the period for filing the same.
However, should the court find it necessary to
clarify certain material facts, it may, during the said period,
issue an order specifying the matters to be clarified, and
require the parties to submit affidavits or other evidence on
the said matters within ten (10) days from receipt of said
order. Judgment shall be rendered within fifteen (15) days
after the receipt of the last clarificatory affidavits, or the
expiration of the period for filing the same.

800

Supra, Section 12, Rule 70, Article IV, Section 18, Rules
on Summary Procedure
801
Heirs of Olivas v Flor, 161 SCRA 393
802
Supra, Section 13, Rule 70, Article IV, Section 19, Rules
on Summary Procedure
803
Supra, Section 15, Rule 70, Article II, Section 10, Rule
on Summary Procedure
804
Supra, Section 20, Rule 70
83

The court shall not resort to the clarificatory


procedure to gain time for the rendition of the judgment.805

SALIENT PORTIONS OF KATARUNGANG


PAMBARANGAY LAW

11.
Should the defense of OWNERSHIP be raised,
the court shall only consider the same if the issue of
possession cannot be resolved without deciding the issue of
ownership. It shall thus be resolved only to determine
possession and any judgment shall be conclusive only on
possession and shall not be a bar to another action between
the parties respecting the title to the land or building806

All DISPUTES require conciliation except in the following:


(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 P 5000.00
(4) offenses where there is no private offended party
(5) where the dispute is brought by or against a
corporation, partnership or juridical entity
(6) where the dispute involves real properties located
in different cities or municipalities UNLESS the
parties agree to submit their differences to
amicable settlement by an appropriate lupon
(7) where dispute involves parties who actually reside
in barangays of different cities or municipalities,
EXCEPT when the barangays actually adjoin each
other and the parties agree to submit their
differences to amicable settlement by an
appropriate lupon
(8) such other classes of disputes which the President
may determine in the interest of justice or upon
recommendation by the Secretary of Justice
(Section 408, PD 1508).
(9) disputes arising from the implementation of the
CARP
(10) Employer-Employee disputes
(11) action to annul a judgment upon a compromise.
Note however that while no petition, complaint,
action or proceeding within the authority of the
lupon shall be filed directly with the court or any
government office for adjudication UNLESS there
has been a confrontation before the lupon
chairman or pangkat, and that no conciliation or
settlement has been reached as certified by the
lupon secretary or pangkat secretary, or unless the
settlement has been repudiated within 10 days
from its date by a statement sworn before the
punong barangay to the effect that his consent is
vitiated by fraud violence or intimidation ( Section
418, PD 1508), the following cases may be filed
directly:
(1) accused in under detention
(2) person has otherwise been deprived of
personal liberty calling for habeas corpus
proceedings
(3) when action is coupled with a provisional
remedy
(4) where action may otherwise be barred by
prescription (Section 412, PD 1508)

12.
The judgment to be rendered by the court in favor
of the plaintiff shall include restitution of the premises, the
sum justly due as arrears of rent or as reasonable
compensation for the use of the premises, attorneys fees
and costs. If the allegations are not true, it shall render
judgment for the defendant for recovery of cost. If a
counterclaim is established, the court shall render judgment
for the sum found in arrears from either party and award
costs as justice requires.807
The judgment is APPEALABLE to the appropriate
Regional Trial Court, which shall decide the case on the
basis of the entire record of the proceedings in the court of
origin and such memoranda or brief as may be submitted or
required808
Note the ruling in the case of Azcuna Jr. vs. CA, GR No.
116665, March 20, 1996 allowing recovery of liquidated
damages.
13.
If judgment is rendered against the defendant, the
execution shall issue immediately upon motion, unless an
appeal has been perfected AND the defendant to stay
execution files a sufficient supersedeas bond if there are
rentals in arrears809, approved by the court and executed in
favor of the defendant to pay rents, damages and costs
accruing down to the time of the judgment appealed from,
AND UNLESS, during the pendency of the appeal, he
deposits with the appellate court the amount of the rent due
from time to time under the contract or the reasonable value
for use and occupation adjudged by the court on or before
the 10th day of each succeeding month or period.810
Note that there is no necessity for a motion for the court to
fix the supersedeas bond as the amount of the same can be
ascertained from the judgment. Also, if the records of the
case have already been transmitted to the appellate court,
the supersedeas bond may be filed with the appellate
court.811
14.
The judgment of the appellate court shall however
be subject to immediate execution without prejudice to a
further appeal812

805

Supra, Section 11, Rule 70, Article


Supra, Sections 16 and 18, Rule 70
807
Supra, Section 17, Rule 70
808
Supra, Section 18, Rule 70
809
Supra, Section 8, Rule 70 and De Laureano v. Adil, 72
SCRA 146
810
Supra, Section 19, Rule 70
811
Chua v Court of Appeals, 286 SCRA 437
812
Supra, Section 21, Rule 70
806

The proper VENUE for conciliation is as follows:


(1) if between persons actually residing in the same
barangay-before the lupon of the said barangay
(2) if between actual residents of different barangays
within the same city of municipality- before the
lupon where the respondent resides, if there be
several respondents- before the lupon where
anyone of them resides at the election of the
complainant
(3) if involving real property or any interest thereinthe barangay lupon where the property or larger
portion is located

84

(4) if arising in the workplace where the contending


parties are employed or at the institution where
such parties are enrolled for study- before the
lupon of the barangay where the workplace or
institution is located. Any OBJECTIONS TO
VENUE shall be raised before the Punong
Barangay, otherwise they are waived. Legal
questions may be submitted to the Secretary of
Justice or his duly designated representative whose
ruling thereon shall be binding.
The procedure for settlement is
(1) initiation of complaint, orally or in writing, to the lupon
chairman of the barangay

REVISED RULE ON
SUMMARY PROCEDURE
RESOLUTION OF THE COURT EN BANC DATED
OCTOBER 15, 1991 PROVIDING FOR THE REVISED RULE
ON SUMMARY PROCEDURE FOR METROPOLITAN
TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES,
MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT
TRIAL COURTS.
Pursuant to Section 36 of the Judiciary Reorganization Act
of 1980 (B.P. Blg. 129) and to achieve an expeditious and
inexpensive determination of the cases referred to herein,
the Court Resolved to promulgate the following Revised
Rule on Summary Procedure:

(2) mediation by lupon chairman on the next working day


from receipt of the complaint, failing in which within 15
days from the first meeting, he shall forthwith set a
date for the constitution of the pangkat
(3) the pangkat shall convene not later than 3 days from
constitution to hear the parties and explore the
possibility of an amicable settlement within 15 days
from the day it convenes, which period is extendible for
another 15 days, except in clearly meritorious cases.
Note however, that while prescription does not run
upon filing of the complaint and shall resume only
upon receipt of the complaint or certificate of
repudiation, or certification to file action, the
interruption shall not exceed 60 days from filing of the
complaint with the punong barangay. (Section 410, PD
1508)
The FORM of the amicable settlement shall be in writing, in
a language/dialect known to the parties, signed by them and
attested by the lupon/pangkat chairman (Section 411, PD
1508). This shall have the force and effect of a final
judgment of a court upon expiration of 10 days from date
thereof unless repudiation has been made or a petition to
nullify the award has been filed before the proper court. This
does not apply to cases already pending but subsequently
referred to the lupon for amicable settlement under the last
paragraph of Section 408,as the same is submitted back to
the court to serve as basis for rendition of judgment.
(Section 416, PD 1508). The award or settlement may be
enforced by execution by the lupon within 6 months from
the date of the settlement. After the lapse of the said period,
by action in the appropriate city of municipal court. (Section
417, PD 1508)
Note however that if a settlement is not complied with, the
injured party may bring an action against the offending
party to recover the original amount of his claim, thereby
rescinding the compromise under Article 2041 of the Civil
Code which was held to qualify Article 2037 of the Civil
Code as to the effect of a compromise being considered as
constituting res judicata.813

813

Chavez v Court of Appeals, GR 159411, March 18, 2005

I
APPLICABILITY
SECTION 1. Scope: - This rule shall govern the summary
procedure in the Metropolitan Trial Courts in Cities, the
Municipal Trial Courts, and the Municipal Circuit Trial
Courts in the following cases falling within their jurisdiction:
A.

Civil Cases:

(1)
All cases of forcible entry and unlawful detainer,
irrespective of the amount of damages or unpaid rentals
sought to be recovered. Where attorneys fees are awarded,
the same shall not exceed twenty thousand pesos (P20,000).
(2)
All other cases, except probate proceedings, where
the total amount of plaintiffs claim does not exceed one
hundred thousand pesos (P100,000) or, two hundred
thousand pesos (P200,000) in Metropolitan Manila,
exclusive of interest and costs. (As amended by A.M. No. 0211-09-SC, dated Nov. 12, 2002; this amended took effect on
November 25, 2002)
B. Criminal Cases:
(1)
(2)
(3)
(4)
(5)

Violations of traffic laws, rules and regulations;


Violations of the rental law;
Violations of municipal or city ordinances;
Violations of Batas Pambansa Blg 22814
All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment not exceeding six months, or a fine
not exceeding one thousand pesos (P1,000), or
both, irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability
arising therefrom: Provided, however, That in
offenses involving damage to property through
criminal negligence, this Rule shall govern where
the imposable fine does not exceed ten thousand
pesos (P10,000).

This rule shall not apply to a civil case where the


plaintiffs cause of action is pleaded in the same complaint
with another cause of action subject to the ordinary
procedure; nor to a criminal case where the offense charged
is necessarily related to another criminal case subject to
ordinary procedure.

814

A.M. 00-11-01-SC, April 15, 2003


85

SEC. 2. Determination of applicability.


Upon the filing of a civil or criminal action, the court shall
issue an order declaring whether or not the case shall be
governed by this Rule.
A patently erroneous determination to avoid the
application of the Rule of Summary Procedure is a ground
for disciplinary action.
II
CIVIL CASES
SEC. 3. Pleadings.
A.
Pleadings, allowed. The only
pleadings allowed to be filed are the complaints, compulsory
counterclaims and cross-claims pleaded in the answer, and
the answers thereto.
B.

Verification. All pleadings shall be

verified.
SEC. 4. Duty of court. After the court
determines that the case falls under summary procedure, it
may, from an examination of the allegations therein and
such evidence as may be attached thereto, dismiss the case
outright on any of the grounds apparent therefrom for the
dismissal of a civil action.
If no ground for dismissal is found, it shall
forthwith issue summons which shall state that the
summary procedure under this Rule shall apply.
NOTE: That any of the grounds for dismissal under Rule 16
apply although no motion to dismiss can be filed except on
the grounds of lack of jurisdiction and non-compliance with
the requirement on conciliation.
NOTE: That the prohibition as to the filing of a motion to
dismiss exists prior to the filing of an answer but a dismissal
grounded on any of the causes stated in Rule 16 can only be
effected prior to the issuance of the court of summons and
not after an answer has been filed (Heirs of Ricardo Olivas
vs. Flor, 161 SCRA 393)
SEC. 5. Answer. Within ten (10) days from
service of summons, the defendant shall file his answer to
the complaint and serve a copy thereof on the plaintiff.
Affirmative and negative defenses not pleaded therein shall
be deemed waived, except for lack of jurisdiction over the
subject matter. Cross-claims and compulsory counterclaims
not asserted in the answer shall be considered barred. The
answer to counterclaims or cross-claims shall be filed and
served within ten (10) days from service of the answer in
which they are pleaded.
SEC. 6. Effect of failure to answer. Should
the defendant fail to answer the complaint within the period
above provided, the court, motu proprio, or on motion of
the plaintiff, shall render judgment as may be prayed for
therein: Provided, however, That the court may in its
discretion reduce the amount of damages and attorneys fees
claimed for being excessive or otherwise unconscionable.
This is without prejudice to the applicability of Section 4,
Rule 18 of the Rules of Court, if there are two or more
defendants.

NOTE: Rendition by the court of judgment on account of


failure to file an answer or to appear during the preliminary
conference may not require a motion (Sordan vs. De
Guzman, A.M. No. MTJ-00-1296, October 5, 2000)
SEC.
7.
Preliminary
conference;
appearance of parties. Not later than thirty (30) days
after the last answer is filed, a preliminary conference shall
be held. The rules on pre-trial in ordinary cases shall be
applicable to the preliminary conference unless inconsistent
with the provisions of this Rule.
The failure of the plaintiff to appear in the
preliminary conference shall be a cause for the dismissal of
his complaint. The defendant who appears in the absence of
the plaintiff shall be entitled to judgment on his
counterclaim in accordance with Section 6 hereof. All crossclaims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff
shall be entitled to judgment in accordance with Section 6
hereof. This Rule shall not apply where one of two or more
defendants sued under a common cause of action who had
pleaded a common defense shall appear at the preliminary
conference.
SEC. 8. Record of preliminary conference.
Within five (5) days after the termination of the preliminary
conference, the court shall issue an order stating the matters
taken up therein, including but not limited to:
(a) Whether the parties have arrived at an amicable
settlement, and if so, the terms thereof;
(b) The stipulations or admissions entered into by
the parties;
(c) Whether, on the basis of the pleadings and the
stipulations and admissions made by the parties, judgment
may be rendered without the need of further proceedings, in
which event the judgment shall be rendered within thirty
(30) days from issuance of the order;
(d) A clear specification of material facts which
remain controverted; and
(e) Such other matters intended to expedite the
disposition of the case.
SEC. 9. Submission of affidavits and
position papers. Within ten (10) days from receipt of
the order mentioned in the next preceding section, the
parties shall submit the affidavits of their witnesses and
other evidence on the factual issues defined in the order,
together with their position papers setting forth the law and
the facts relied upon by them.
SEC. 10. Rendition of judgment. Within
thirty (30) days after receipt of the last affidavits and
position papers, or the expiration of the period for filing the
same, the court shall render judgment.
However, should the court find it necessary to
clarify certain material facts, it may, during the said period,
issue an order specifying the matters to be clarified, and
require the parties to submit affidavits or other evidence on
the said matters within ten (10) days from receipt of said
order. Judgment shall be rendered within fifteen (15) days

86

after the receipt of the last clarificatory affidavits, or the


expiration of the period for filing the same.

his counsel. A refusal or failure to stipulate shall not


prejudice the accused.

The court shall not resort to the clarificatory


procedure to gain time for the rendition of the judgment.

Sec. 15 Procedure of trial. At the trial, the


affidavits submitted by the parties shall constitute the direct
testimonies of the witnesses who executed the same.
Witnesses who testified may be subjected to crossexamination, redirect or re-cross-examination. Should the
affiant fail to testify, his affidavit shall not be considered as
competent evidence for the party presenting the affidavit,
but the adverse party may utilize the same for any
admissible purpose.

NOTE: That hearings are not necessary unless for the


purpose of clarifying certain material facts.
III
CRIMINAL CASES
Sec. 11. How commenced. The filing of
criminal cases falling within the scope of this Rule shall be
either by complaint or by information; Provided, however,
That in Metropolitan Manila and in Chartered Cities, such
cases shall be commenced only by information, except when
the offense cannot be prosecuted de officio.
The complaint or information shall be
accompanied by the affidavits of the complainant and of his
witnesses in such number of copies as there are accused plus
two (2) copies of the courts files. If this requirement is not
complied with within five (5) days from date of filing, the
case may be dismissed.
Sec. 12 Duty of court.
(a)
If commenced by complaint. On the basis of the
complaint and the affidavits and other evidence
accompanying the same, the court may dismiss the case
outright for being patently without basis or merit and order
the release of the accused if in custody.
(b)
If commenced by information. When the case is
commenced by information, or is not dismissed pursuant to
the next preceding paragraph, the court shall issue an order
which, together with copies of the affidavits and other
evidence submitted by the prosecution, shall require the
accused to submit his counter-affidavit and the affidavits of
his witnesses as well as any evidence in his behalf, serving
copies thereof on the complainant or prosecutor not later
than ten (10) days from receipt of said order. The
prosecution may file reply affidavits within ten (10) days
after receipt of the counter-affidavits of the defense.
Sec. 13 Arraignment and trial. Should the
court, upon a consideration of the complaint or information
and the affidavits submitted by both parties, find no cause or
ground to hold the accused for trial, it shall order the
dismissal of the case; otherwise, the court shall set the case
for arraignment and trial.
If the accused is in custody for the crime charged,
he shall be immediately arraigned and if he enters a plea of
guilty, he shall forthwith be sentenced.
Sec. 14 Preliminary conference. Before
conducting the trial, the court shall call the parties to a
preliminary conference during which a stipulation of facts
may be entered into, or the propriety of allowing the accused
to enter a plea of guilty to a lesser offense may be
considered, or such other matters may be taken up to clarify
the issues and to ensure a speedy disposition of the case.
However, no admission by the accused shall be used against
him unless reduced to writing and signed by the accused and

Except on rebuttal or surrebuttal, no witness shall


be allowed to testify unless his affidavit was previously
submitted to the court in accordance with Section 12 hereof.
However, should a party desire to present
additional affidavits or counter-affidavits as part of his
direct evidence, he shall so manifest during the preliminary
conference, stating the purpose thereof. If allowed by the
court, the additional affidavits of the prosecution or the
counter-affidavits of the defense shall be submitted to the
court and served on the adverse party not later than three
(3) days after the termination of the preliminary conference.
If the additional affidavits are presented by the prosecution,
the accused may file his counter-affidavits and serve the
same on the prosecution within three (3) days from such
service.
Sec. 16. Arrest of accused. The court shall not
order the arrest of the accused except for failure to appear
whenever required. Release of the person arrested shall
either be on bail or on recognizance by a responsible citizen
acceptable to the court.
Sec. 17 Judgment. Where a trial has been
conducted, the court shall promulgate the judgment not
later than thirty (30) days after the termination of trial.
COMMON PROVISIONS
SEC. 18 Referral to Lupon. Cases requiring
referral to the Lupon for conciliation under the provisions of
Presidential Decree No. 1508 where there is no showing of
compliance with such requirement, shall be dismissed
without prejudice, and may be revived only after such
requirement shall have been complied with. This provision
shall not apply to criminal cases where the accused was
arrested without a warrant.
SEC. 19. Prohibited pleadings and motions.
The following pleadings, motions, or petitions shall not be
allowed in the cases covered by this Rule:
(a) 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 the preceding section;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
NOTES: A motion for reconsideration can be filed when the
case is already pending before the appellate court. (Jakihaca
vs.Aquino, 181 SCRA 67). A motion for reconsideration of

87

rulings or pertaining to other incidents, NOT OF THE


JUDGMENT, is allowed ( Lucas vs. Fabros, 324 SCRA 1)

RULE 71 CONTEMPT

(e) Motion for extension of time to file pleadings,


affidavits or any other paper;
(f) Memoranda;

Willful disobedience or open disrespect of the orders,


authority, or dignity of a court or judge acting in judicial
capacity by disruptive language or conduct or by failure to
obey the orders of the court

(g) Petition for certiorari, mandamus, or


prohibition against any interlocutory order issued by the
court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
NOTE: If motion is well grounded, it may be allowed.
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.
SEC. 20. Affidavits. The affidavits required to
be submitted under this Rule shall state only facts of direct
personal knowledge of the affiants which are admissible in
evidence, and shall show their competence to testify to the
matters stated therein.
A violation of this requirement may subject the
party or the counsel who submits the same to disciplinary
action, and shall be cause to expunge the inadmissible
affidavit or portion thereof from the record.
SEC. 21. Appeal. The judgment or final order
shall be appealable to the appropriate regional trial court
which shall decide the same in accordance with Section 22 of
Batas Pambansa Blg. 129. The decision of the regional trial
court in civil cases governed by this Rule, including forcible
entry and unlawful detainer, shall be immediately executory,
without prejudice to a further appeal that may be taken
therefrom.

WHAT IS CONTEMPT

KINDS OF CONTEMPT

1.
DIRECT CONTEMPT consists of misbehaviour
in the presence of or so near a court as to obstruct or
interfere with the proceedings before the same, it includes,
disrespect, offensive personalities against others, refusal to
be sworn or answer as a witness, or to subscribe to an
affidavit/deposition when lawfully required to do so.
This kind of contempt may be SUMMARILY ADJUDGED
and be punished by a fine not exceeding P 2,000.00 or
imprisonment of not exceeding 10 days or BOTH if it be by a
Regional Trial Court or a fine not exceeding P 200.00 or
imprisonment not exceeding 1 day or BOTH if it be by a
Municipal Trial Court.
The remedy therefrom is certiorari/ prohibition, in which
case the
judgment is suspended pending the petition
provided the petitioner files a bond fixed by the court which
rendered the judgment and conditioned that he will abide by
and perform the judgment should the petition be decided
against him. 815
1.1
It is direct
derogatory, offensive
particular judge when
the judge is presiding.
contempt.816
2.

a.
b.

NOTE: That immediate execution requires proof that the


losing party has been served with notice of judgment (Dy vs.
CA, 191 SCRA 585) and that notice of the motion for
execution to the adverse party is required ( Limpo vs. CA,
333 SCRA 575)
SEC. 22. Applicability of the regular rules.
The regular procedure prescribed in the Rules of Court shall
apply to the special cases herein provided for in a suppletory
capacity insofar as they are not inconsistent herewith.

c.

SEC. 23. Effectivity. This revised Rule on


Summary Procedure shall be effective on November 15,
1991.

d.
e.
f.

815
816

contempt if a pleading contains


or malicious statements against a
submitted in the same court where
If submitted elsewhere, it is indirect

INDIRECT CONTEMPT consists of


Misbehavior of an officer of a court in the
performance of his official duties or in his official
transactions;
Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court, including
the act of a person who, after being dispossessed or
ejected from any real property by the judgment or
process of any court of competent jurisdiction,
enters or attempts or induces another to enter into
or upon such real property for the purpose of
executing acts of ownership or possession, or in any
manner disturbs the possession given to the person
adjudged to be entitled thereto;
Any abuse of or any unlawful interference with the
processes or proceedings of a court not constituting
direct contempt under Section 1 of this Rule;
Any improper conduct tending, directly or
indirectly to impede, obstruct, or degrade the
administration of justice;
Assuming to be an attorney or an officer of a court,
and acting as such without authority;
Failure to obey a subpoena duly served;

Supra, Sections 1 and 2, Rule 71


Ang v Castro, 136 SCRA 453
88

g.

The rescue, or attempted rescue, of a person or


property in the custody of an officer by virtue of an
order or process of a court held by him.

But nothing in this section shall be so construed as to


prevent the court from issuing process to bring the
respondent into court, or from holding him in custody
pending such proceedings.817
2.1
This kind of contempt may be initiated motu
propio by the court against which the contempt was
committed by an order or any formal charge requiring the
respondent to show cause why he should not be punished
for contempt. In other cases, it shall be commenced by
verified petition with supporting particulars and certified
true copies of documents or papers involved therein, and
upon FULL COMPLIANCE WITH REQUIREMENTS FOR
FILING INITIATORY PLEADINGS in the court concerned.
If the charges are related to the principal action pending
before the court, the petition shall so allege such fact but it
shall
be
DOCKETED,
HEARD
AND
DECIDED
SEPARATELY, unless the court in its discretion orders
consolidation of the charge and principal action for joint
hearing and decision.818
2.2
The charge shall be filed in the Regional Trial Court
if the contempt is committed against it or a court of equal or
higher rank or against an officer appointed by it. If against a
lower court, it may be filed in the Regional Trial Court in the
place where the lower court sits or in such lower court,
subject to appeal to the Regional Trial Court.819
This kind of contempt is punishable by a fine not exceeding
P 30,000.00 or imprisonment not exceeding 6 months or
both, if committed against a Regional Trial Court. If against
a Municipal Trial Court, by a fine not exceeding P 5,000.00
or imprisonment not exceeding 1 month. If it consists in a
violation of a writ of injunction, TRO or status quo order, he
may also be ordered to make complete restitution. A writ of
execution may be issued to enforce a fine.820 If it consists in
refusal or omission to do an act within his power to perform,
he may be imprisoned by order of the court until it is
performed.821

hearing of the charge, he may be ordered arrested and the


bond forfeited.824
2.
If already imprisoned, the court may discharge the
respondent if public interest will not be prejudiced by the
release.825

APPLICABILITY OF THE RULE

The rules apply to persons, entities, bodies or agencies


exercising quasi-judicial powers or shall have suppletory
effect to their rules. The RTC of the place where the
contempt is committed shall have jurisdiction.826

DEFINING
CONTEMPT

CRIMINAL

AND

CIVIL

It is criminal contempt when the purpose is to vindicate the


authority of the court and protect its outraged dignity. It is
civil contempt when there is failure to do something ordered
by the court to be done for the benefit of another party.827
In fact, it has been declared that the motion for extension of
time within which a party may plead is not a litigated motion
where notice to the adverse party is necessary to afford the
latter an opportunity to resist the application, but an ex
parte motion made to the court in behalf of one or the other
of the parties to the action, in the absence and usually
without the knowledge of the other party or parties.
(Commercial Union Assurance Company Limited, et. al. vs.
Lepanto Consolidated Mining Company, et. al., L-43342.
October 30, 1978, 86 SCRA 79, 95-96; Amante vs. Sunga, et.
al., L-40491, May 28, 1975, 64 SCRA 192, 195)
Therefore, as long as it is filed within the period sought to be
extended, a request for extension of time may be filed ex
parte and granted without the usual formalities applicable to
motions in general. (Moya vs. Barton, 76 Phil. 831).

2.3
A judgment for indirect contempt is appealable to
the Regional Trial Court, but execution shall not be
suspended without the filing of a bond.822
2.4
An order dismissing a contempt charge or
exoneration from such, is not appealable.823

OTHERS

1.
If no hearings are held forthwith and the
respondent has been taken into custody, he may be released
upon payment of a bond, but if he fails to appear on the

817

Supra, Section 3, Rule 71


Supra, Section 4, Rule 71
819
Supra, Section 5, Rule 71
820
Supra, Section 7, Rule 71
821
Supra, Section 8, Rule 71
822
Supra, Section 11, Rule 71
823
In Re, Mison, Jr, 33 SCRA 30
818

824

Supra, Sections 6 and 9, Rule 71


Supra, Section 10, Rule 71
826
Supra, Section 12, Rule 71
827
Yasay v Recto, 313 SCRA 739
825

89