Professional Documents
Culture Documents
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
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
2.2
Determined by the law in force at the time
of the commencement of the action
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.
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
WHEN
CAN
THE
ABSENCE
JURISDICTION BE QUESTIONED
OF
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.
5.
IF CLAIMS ARE UNSPECIFIED BUT ARISE
AFTER FILING The required additional fee shall
constitute a lien on the judgment
1.
3.
JURISDICTION
COURTS
OF
REGIONAL
TRIAL
OF
2.
JURISDICTION
APPEALS
OF
THE
COURT
(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,
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.
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
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
RULE 2
CAUSE OF ACTION
12
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
EFFECT OF MISJOINDER
19
24
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
interest
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
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
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
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
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
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
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
57
61
58
62
Necessary party
not joinedaction proceeds
judgment is voted but does
not resolve the controversy.
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.
IF DEATH/SEPARATION OF A PUBLIC
OFFICER (Sec 17)
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
65
10
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.
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
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.
3.
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
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)
EXAMPLES:
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
12
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.
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.
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
97
13
3.2
The REQUISITES
COUNTER-CLAIM are:
OF
COMPULSORY
OF
PERMISSIVE
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:
101
104
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.
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
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)
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
107
110
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
118
125
Certification
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
results in dismissal
129
17
HOW ALLEGATIONS
PLEADING
ARE
MADE
IN
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.
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
138
139
18
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
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
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
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.
152
159
Supra, Rule 38
Supra, Rule 65
161
Supra, Section 3,(e), Rule 9
160
20
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:
KINDS OF AMENDMENTS
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
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
21
1.
THE
EFFECTS
PLEADING
OF
AN
AMENDED
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
2.
If covered by the Rules on Summary Procedure, it
is 10 days
3.
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
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
179
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
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
REPLY
184
192
23
EFFECT OF NON-COMPLIANCE
ORDER
WITH
MODES OF FILING
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
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.
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
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
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)
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
SIGNIFICANCE OF SUMMONS
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
26
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
(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
4.2
EXTRA-TERRITORIAL SERVICE CAN BE
AVAILED OF when:
4.3
court.
SERVICE
3.1
The grounds that allow service of summons
by publication are:
UPON
WHOM
MAY
SUMMONS BE MADE
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
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
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
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
6.2
A judge can act ex-parte on a motion where the
rights of the adverse party are not affected.265
DEFINED
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
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
28
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
5.2
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
6.
The cause of action is barred by a prior judgment or
by the statute of limitations
6.1
2.
The court has not jurisdiction over the subject
matter of the claims
(a)
(b)
3.
(c)
(d)
3.1
An objection to improper venue must be made
before a responsive pleading is filed, otherwise it is deemed
waived.277
271
278
6.2
The
GROUNDS:
(a)
(b)
DOCTRINE
IS
FOUNDED
ON
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.
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)
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
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)
8.
Claim or demand set forth in plaintiffs pleading
has been paid, waived, abandoned, or otherwise
extinguished
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
282
30
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
RULE 18 PRE-TRIAL
WHAT IS PRE-TRIAL
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.
1.
Possibility of amicable settlement / or submission
to alternative modes of dispute resolution
291
295
292
296
2.
3.
Necessity / desirability of amendment to the
pleadings
4.
Possibility of obtaining stipulations or admissions
of fact and of documents to avoid unnecessary proof
5.
1.
Statement of willingness to enter into an amicable
settlement, the desired terms or to submit to alternative
modes of dispute resolution
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.
4.
Number of witnesses / names, abstract of
testimonies, approximate number of hours that will be
required for presentation of their respective evidence
1.
2.
3.
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.
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
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
5.
Copies of all documents intended to be presented
which statement of the purposes of their offer
2.
Summary of admitted facts / proposed stipulation
of facts
2.
NOTE THAT TRIAL SHALL BE LIMITED TO
ISSUES STATED IN THE PRE-TRIAL ORDER.307
2.
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.
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
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
HOW AND
INTERVENE
WHEN
CAN
PERSON
(b)
MAINTENANCE
CALENDAR
OF
THE
COURT
ASSIGNMENT OF CASES
307
313
308
314
RULE 21 SUBPOENA
WHAT IS A SUBPOENA
KINDS OF SUBPOENA
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
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
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.
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
34
(a)
(b)
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.
OF
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
PURPOSES OF DISCOVERY
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, 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
SCOPE OF A DEPOSITION
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.
TO
TAKE
A.
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
341
342
36
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
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
348
354
37
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.
359
364
360
365
USE OF DEPOSITION
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
c.
Deposition of a witness, party or not, may be used
by any party for any purpose if the court finds that:
HOW TAKEN
USE OF DEPOSITION
369
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
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.
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.
EFFECT OF ADMISSIONS
378
374
40
RULE 27 PRODUCTION OR
INSPECTION OF DOCUMENTS ON
THINGS
HOW
WHEN AVAILED OF
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
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
MAY
TRIAL
ADJOURNED
BE
POSTPONED
IF DUE TO
COUNSEL
ILLNESS
OF
PARTY
OR
389
395
42
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
399
WHEN RESORTED TO
TAKE
MAY
THERE
BE
CONSOLIDATION
ALTHOUGH ACTIONS ARE PENDING IN
DIFFERENT COURTS
ALLOWING
RULE 31 CONSOLIDATION OR
SEVERANCE
PURPOSE
OF
CONSOLIDATION
400
405
43
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
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
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
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
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
417
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
1.
This is
JUDGMENT426
also
known
as
ACCELERATED
SUMMARY
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
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
5.
The PROCEDURE for the filing and resolution of
a motion for summary judgment is as follows:
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.
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.
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.
EFFECT
OF
THE
RENDITION
SUMMARY JUDGMENT
OF
PARTIAL
OF
JUDGMENT/FINAL
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
1.
The aggrieved party may appeal the summary
judgment as such is final judgment as defined by Section 1,
Rule 41.
1.
NOTE that a judge who has been reassigned can
pen a decision as long he is still an incumbent judge.434
430
433
431
434
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
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.
JUDGMENTS MAY BE
WHEN FILED
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
435
47
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
GROUNDS
FOR
RECONSIDERATION
MOTION
FOR
2.
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
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
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
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
457
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
474
475
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
a judgment for
support
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
482
483
490
51
MANNER OF EXECUTION
I.
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.
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
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.
494
497
495
498
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,
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
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
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
IS
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
53
I.
a.
b.
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
511
507
54
IF
THE
SALE
IS
SUBSEQUENTLY
RENDERED INFFECTIVE
II.
PERSONAL PROPERTY -
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
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
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
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.
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
517
518
521
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.
AS
BETWEEN
SEVERAL
PERSONS
AGAINST
WHOM
EXECUTION
IS
DIRECTED
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
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
56
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
(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.
(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
539
APPEALS
Rule 40 Appeals from MTC to RTC
WHERE CAN
APPEALED
AN
MTC
DECISION
BE
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
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
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.
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
544
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
554
(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
(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
59
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
564
572
565
573
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.
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
580
61
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.
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.
595
590
62
COURT
ACQUIRE
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
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)
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
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
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
601
63
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
RULE 51 - JUDGMENT
When submitted for judgment:
1.
IN ORDINARY APPEALS:
a.
b.
1.
2.
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
64
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
632
625
65
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.
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
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
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
641
648
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
RULE 65 - CERTIORARI /
PROHIBITION AND MANDAMUS
WHAT IS CERTIORARI
654
while
the latter involves a review
judgment/final order/ resolution on the merits
of
EXCEPTIONS TO REQUIREMENT AS TO
MOTION FOR RECONSIDERATION PRIOR
TO FILING A PETITION FOR CERTIORARI
UNDER RULE 65
WHAT IS PROHIBITION
67
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 IS MANDAMUS
FROM
2 ASPECTS OF MANDAMUS
HOW
DISTINGUISHED
CERTIORARI / PROHIBITION
661
659
68
IT IS FILED
APPEALS
WITH
THE
COURT
OF
PARTIES TO BE IMPLEADED
ORDER TO COMMENT
ACTIONS
THAT
SUSBEQUENTLY
MAY
BE
TAKEN
1.
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
664
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
ORIGINAL CASES
DISTINGUISH
BETWEEN
QUO
WARRANTO AS TO NATURE OF POSITION
APPEALED CASES
IF
SUPREME
COURT
OPINION
IS
EQUALLY DIVIDED OR NECESSARY
MAJORITY CANNOT BE OBTAINED
678
683
679
684
PROVISIONAL REMEDIES
RULE 57 PRELIMINARY
ATTACHMENT
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:
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.
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
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.
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
693
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.
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
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
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.
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
709
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.
2.
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
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
GROUNDS
FOR
DISSOLUTION
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
713
74
WHAT ARE
RECIEVER
THE
POWERS
OF
THE
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
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
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
1.
HOW
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
734
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
3.2
IF DENIED, the principal case shall be tried and
decided as early as possible.744
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
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
HOW ENFORCED
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
744
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
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
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
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.
1.
749
754
750
755
2.
1.
WHAT IS EXPROPRIATION
HOW EXERCISED
WHERE FILED
UPON FILING,
POSSESSION
MAY
PLAINTIFF TAKE
2.
of:
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
759
760
761
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
RULE 68 FORECLOSURE OF
REAL ESTATE
IN
THE
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
DISTINGUISHING
EQUITY
REDEMPTION
FROM
RIGHT
REDEMPTION
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
771
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
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
780
774
81
UNLAWFUL DETAINER
ENTRY
OR
ACCION
DISTINGUISHED
OR FORCIBLE
INTERDICTAL
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
1.1
If action is terminate the lease due to the expiration
of its term, demand is not a prerequisite.790
2.
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
preliminary conference
provisions of this Rule.
unless
inconsistent
with
the
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
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
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
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
84
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:
813
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)
814
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.
86
87
RULE 71 CONTEMPT
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.
c.
d.
e.
f.
815
816
g.
DEFINING
CONTEMPT
CRIMINAL
AND
CIVIL
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
824
89