2008 Lecture Notes On Civil Procedure

LECTURE NOTES ON CIVIL PROCEDURE
Revised October 2009

WHAT IS CIVIL PROCEDURE
1.
It is the procedure governing the filing, processing and adjudication of civil
actions. It essentially is the lawyers law that defines the rules of the game that lawyers
and judges play.
2.
It is considered as procedural law as it prescribes the method of enforcing rights
and obtaining redress for their invasion, as opposed to substantive law which creates,
defines, and regulates rights and duties that give rise to a cause of action.
2.1
The rules of procedure promulgated by authority of law bear the force and
effect of law.1
3.
It is embraced in Rules 1 to 71 of the Rules of Court and after its revision, is now
commonly known as the 1997 Rules of Civil Procedure. It is divided into the following
topics: General Provisions (Rule 1), Ordinary Civil Actions (Rules 2-5), Procedure in
Regional Trial Courts (Rules 6-39), Appeals (Rules 40-43), Procedure in the Court of
Appeals and Supreme Court (Rule 44- 56), Provisional Remedies (Rules 57-61), and
Special Civil Actions (Rules 62-71).
4.
Included within its scope are the 1991 Rules on Summary Procedure, Local
Government Code provisions on the Katarungang Pambarangay and related issuances
of the Supreme Court.
PRELIMINARIES
1.
Any discussion of procedural rules should always be preceded by a discussion of
jurisdiction as its presence is what gives rise to the application of the rules for the
purpose of resolving the action that is brought before a court. Simply defined it refers to
the power and authority of a court or tribunal to hear, try and decide a case. It has also
been defined as the authority by which courts and judicial officers take cognizance of
and decide cases.
1.1
Absent jurisdiction, the only thing a court can do as provided by the rules
is to dismiss the action.
1.2
If a court acts without jurisdiction, all its acts are null and void. Further, any
decision it may render is not a decision in contemplation of law and cannot
be executory.2
The validity of a judgment or order of a court or quasi-judicial tribunal
which has become final and executory may be attacked when the records
1.3
1
2
Conlu v. Court of Appeals, 106 Phil 940

Abbain vs. Chua, 22 SCRA 748, Estoesta vs. Court of Appeals, 179 SCRA 203, Dava vs. People, 202 SCRA 62
show that it lacked jurisdiction to render the judgment - a void judgment

may be assailed or impugned at any time either directly or collaterally by
means of a petition filed in the same or separate case, or by resisting such
judgment in any action or proceeding wherein it is invoked. In fact, even
the testimony in a case where the proceedings had been nullified for lack
of jurisdiction is inadmissible as evidence. 3
2.
The absence of jurisdiction as a general rule may be questioned at any stage of
the proceedings, even on appeal.
2.1
However, a party may be barred from raising it on the ground of laches or

estoppel when he has actually invoked the jurisdiction of the court by
participating in the proceedings, then belatedly questions lack of
jurisdiction after judgment has gone against him. Participation in all stages
before the trial court which included invoking its authority in asking for
affirmative relief, effectively bars the party by estoppel from challenging
the courts jurisdiction.4
2.2
The court actually does not have jurisdiction, but the law for reasons of
equity, steps in to gag the negligent party and prevents him from raising its
voice about lack of jurisdiction. It does so not because the Court has
acquired jurisdiction but because of fault or negligence of a party now
estops him from raising the question of lack of jurisdiction. 5
2.3
Note likewise the rules covering actions for annulment of judgment based
on extrinsic fraud or lack of jurisdiction. If based on the latter, it can only
be initiated before it is barred by laches or estoppel. 6
2.4
It is incumbent upon the petitioner to file a motion to dismiss at the earliest

opportune time to raise the issue of the courts lack of jurisdiction. Its
failure to seasonably raise the question of jurisdiction leads to the
inevitable conclusion that it is now barred by laches. 7
REQUISITES FOR A VALID EXERCISE OF JURISDICTION

1.
It must have jurisdiction over the persons of the parties. It is acquired over the
plaintiff upon his filing of a complaint.
1.1
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.
Dynamic Signmaker Outdoor Advertising Services, Inc. vs. Potongan, 461 SCRA 328
Heirs of the late Panfilo V. Pajarillo v. Court of Appeals, 537 SCRA 96
5
Tijam v. Sibonghanoy, 23 SCRA 29, Soliven v. FastForms, Phil. Inc., 440 SCRA 389
6
Sections, 2 and 3, Rule 49, 1997 Rules of Civil Procedure
7
United Overseas Bank v. Ros, 529 SCRA 334
4
2.
It must also have jurisdiction over the subject matter in controversy. Jurisdiction
over the subject matter of the complaint is to be determined by the allegations in the
complaint and the law in force at the time of the commencement of the action. This is
the power of a court to hear and determine cases of a general class to which the
proceedings in question belong.8
2.1
Determined by allegations in the complaint. Jurisdiction must be

determined at the commencement of the action. Since an action is
commenced by the filing of a complaint, it is also the means by which the
plaintiff invokes the jurisdiction of the court. Hence, it is from it that a
determination of the existence of jurisdiction is had.
2.2
The determination is to be confined solely to the four corners of the

complaint. Specifically, what characterizes an action is not the caption of
the pleading, which is just a legal conclusion on the part of the pleader, but
the allegations in the body of the complaint. 9
2.3
In case of conflict between the allegations and the reliefs, the allegations
in the body shall prevail. The prayer is a conclusion of the pleader as
cause of action. The Court is not bound as it may grant a relief, lesser or
greater in amount, or totally different from that prayed for.10
2.4
Even if the plaintiff alleges an amount that puts the case within the
jurisdiction of the RTC, the courts jurisdiction is not affected if it later finds
that the plaintiff is entitled to an amount within the jurisdiction of an MTC. 11
Conversely, if a court has no jurisdiction, the defect will not be cured by a
finding during the trial that the amount actually due is within the jurisdiction
of the court.12
2.5
Neither can it be determined from the allegations in the answer of the

defendant. If the rule were otherwise, no action can prosper as all the
defendant has to do is to allege that the jurisdiction is vested in another
court.
2.6
The only recognized exception is the defense of agricultural tenancy.13 The

court in this case must conduct a preliminary hearing on the defense to
determine if there is indeed a tenancy relationship, as its existence shall
mean that the court has no jurisdiction as the same is vested exclusively
with the DARAB.14
Heirs of Valeriano S. Concha, Sr. v. Lumocso, 540 SCRA 1

De Jesus v. Bristol Laboratories, 55 SCRA 349, Solid Homes v. Court of Appeals, 271 SCRA 157
10
Bulao v. Court of Appeals, 218 SCRA 321
11
Ratilla v. Tapucar, 75 SCRA 64
12
Mercado v. Ubay, 187 SCRA 719
13
Section 3, Rule 70, 1997 Rules of Civil Procedure
14
Concepcion v. CFI of Bulacan, 119 SCRA 222
9
2.7
Determined by the law in force at the time of the commencement of the

action. Jurisdiction as used in the Constitution and statutes means
jurisdiction over the subject matter15 unless qualified to mean another kind
of jurisdiction. This jurisdiction refers to the jurisdiction of a court over a
general class of cases or the power to try and decide the class of litigation
to which the particular case belongs. 16 Jurisdiction is conferred by law,
where there is none; no agreement of the parties can provide one. 17
2.8
Example: If an 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 9-9418 interest, damages of
whatever kind- as long as incidental, attorneys fees, litigation expenses
and costs (DIAL-C) are not to be considered in fixing the jurisdictional
amount, but must be specifically alleged and filing fees paid thereon.
Hence, in an action for the payment of a sum of money previous to the
said date, a determination of jurisdiction would have to include the
amounts claimed by way of DIAL-C. Another is Section 5.2, RA 8799 19 that
vests jurisdiction over intra-corporate disputes in the RTC that sits as a
commercial court.
2.9
When a court has already obtained and is exercising jurisdiction over a

controversy, its jurisdiction to proceed to the final determination of the
cause is not affected by new legislation placing jurisdiction over such
proceedings in another tribunal unless the statute expressly provides, or is
construed to the effect that it is intended to operate on actions pending
before its enactment.20
3.
Jurisdiction over the res assumes importance only in those actions where the
court cannot acquire jurisdiction over the person of the defendant because he is not a
resident and cannot be found here or served with summons.
3.1
These are quasi in rem actions. 21 The action is directed against a

defendant personally, although its object is to subject his interest in the
property to the obligation or the lien.22
PROBLEM AREAS AFFECTING JURISDICTION

15
Reyes v. Diaz, 73 Phil 484

Caluag v. Pecson, 82 Phil 8
17
Department of Health v. NLRC, 251 SCRA 700
18
June 14, 1994
19
Securities Regulation Code of 2000
20
Palana v. People, 534 SCRA 296
21
Perkins v. Dizon, 69 Phil 186
22
Biaco v. PCRB, 515 SCRA 106
16
1.
Actions which are incapable of pecuniary estimation

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.
1.2
It is a claim, the subject of which cannot be estimated in terms of money.
1.3
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. Other examples: Action for appointment of
receivers, expropriation, interpleader, support, and rescission.
1.4
In determining which court has jurisdiction, the applicable test is the

Nature of the Action Test which involves a 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 real or personal property but this test must
yield to the Primary or Ultimate 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.
1.5
Examples: An action for specific performance with a prayer for the

issuance of a deed of sale over a parcel of land is a real action as the
object is the recovery of the land itself 23 or an action to quiet title in which
both parties are claiming ownership of the subject parcels of land is also a
real action.24 Hence, they cannot be considered as being incapable of
pecuniary estimation.
2.
DETERMINATION OF AMOUNTS OF THE
JURISDICTION AND PAYMENT OF DOCKET FEES.
23
TO
DETERMINE
2.1
Filing and docketing of the complaint are not separate but are
complementary. It is not simply the filing of the complaint or appropriate
initiatory pleading, but the payment of the prescribed docket fee that vests
a trial court with jurisdiction over the subject matter or nature of the
action.25
2.2
The problem arises as filing is not synonymous with docketing as the

complaint may be filed but not necessarily docketed if the appropriate fees
are not paid.
Gochan v. Gochan, 372 SCRA 256

Ferrer v. Lucas, CA G.R. No. SP 52294, July 9, 1999
25
Proton Pilipinas Corporation v. Banque Nationale de Paris, 460 SCRA 260.
24
CLAIM
26
2.3
The purpose of docket fees is to take care of court expenses in the

handling of cases in terms of costs of supplies, use of equipment, salaries
and benefits.26
2.4
Examples in determining appropriate docket fees: (a) Foreclosure

of
chattel to collect PHP 100,000.00 but actual value of chattel is PHP
500,000.00, the docket fee is based on what is sought to be collected and
jurisdiction is determined by the amount claimed by the plaintiff (b) An
action to collect a sum of money that is within jurisdiction of the MTC but
with accessory prayer for damages beyond MTC jurisdiction, the
damages, interest, attorneys fees, litigation expenses are to be excluded
in determining jurisdiction but docket fees are still to be collected 27 but if
action is for damages over 400K jurisdiction is with the RTC because it is
the main cause of action or one of the causes of action.
2.5
If the 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 otherwise the defendant
must move to dismiss the complaint on the ground of lack of jurisdiction, if
he does not, he may be considered to be in estoppel. 28
2.6
The court had jurisdiction over the amended complaint as it had acquired
jurisdiction over the case when the original complaint was filed and the
corresponding docket fee was paid thereon. While the payment of the
prescribed docket fee is a jurisdictional requirement, even its nonpayment
at the time of filing does not automatically cause the dismissal of the case,
as long as the fee is paid within the applicable prescriptive or
reglementary period.29
2.7
When the docket fees for the main action are paid but those for related
damages alleged but not specified are not paid, the court is not prevented
from proceeding with the complaint, the 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. 30
2.8
In a complaint for recovery of possession of real property which did not

allege the assessed value thereof, the trial court commits a serious error
in denying a motion to dismiss on the ground of lack of jurisdiction. All
proceedings in said court are null and void.31
Serrano v. Delica, 465 SCRA 82

A.M. 09-94, June 14, 1994
28
NSC v. Court of Appeals, G.R. 123215, February 2, 1999
29
Pagcor v. Lopez, 474 SCRA 76, Polido v. Court of Appeals, 527 SCRA 248
30
Tacay v RTC of Tagum, Davao del Sur, 180 SCRA 433
31
Quinagoran vs. CA, GR No. 155179, August 24, 2007
27
2.9
If the claims are not specified and subsequently arise or there is an

insufficiency in the payment of docket fees, the required additional fee
shall constitute a lien on the judgment and the clerk of court must enforce
and collect the difference in docket fees from the judgment that may be
rendered by the court in the case, awarding a claim no specified in the
pleading or if specified is left to its determination. 32
DISTINCTIONS BETWEEN THE NATURE OF JURISDICTION EXERCISED BY THE

COURTS
1.
AS TO THE NATURE OF THE EXERCISE OF JURISDICTION OR KIND OF
CASES THAT ARE TRIED 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 Criminal when
the object of the action is to impose punishment for a crime or Civil, if otherwise.
3.
AS TO THE TIMING OF ITS EXERCISE- 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.
4.
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.
32
4.1
In this instance, the court which has first validly acquired jurisdiction takes
it to the exclusion of the others. This is also known as the Exclusionary
Principle. This is taken together with the Doctrine of Judicial Stability of
Non-Interference which holds that court of co-equal or coordinate
jurisdiction shall have no authority to pass upon or scrutinize the exercise
by another court of its jurisdiction.
4.2
Note though the Doctrine of Hierarchy of Courts which requires litigants to

initially seek proper relief from the lower courts in those cases where the
Supreme Court has concurrent jurisdiction with the Court of Appeals and
the Regional Trial Court to issue the extraordinary writs of certiorari,
prohibition or mandamus. The Supreme Court is a court of last resort and
its jurisdiction to issue extra-ordinary writs should be exercised only when
absolutely necessary, or where serious and important reasons therefor
exist.33 Neither does concurrence of jurisdiction grant any party seeking
any of the extra-ordinary writs the absolute freedom to file the petition with
the court of his choice.34
Pascual v. Court of Appeals, 300 SCRAPascual v. Court of Appeals, 300 SCRA 214
Pearson v. IAC, 295 SCRA 27
34
Ouano vs. PGTT International Investment Corporation, 384 SCRA 587
33
5.
AS TO SITUS it is Territorial, meaning it is exercised within the limits of the
place where the court is located or Extra-Territorial meaning it is exercised beyond the
confines of the territory where the court is located.
WHAT HAPPENS WHEN JURISDICTION IS ACQUIRED
Jurisdiction once acquired continues until the case is terminated. It is not affected by
subsequent legislation placing jurisdiction in another tribunal. 35 The exceptions are:
when the law expressly provides for retroactivity,36 when the change in jurisdiction is
curative in nature, or when there is a perfected appeal. This is also known as the
Doctrine of Adherence to Jurisdiction.
DOCTRINE OF PRIMARY JURISDICTION
1.
That which vests in an administrative tribunal the jurisdiction to determine a
controversy requiring the exercise of sound administrative discretion stated otherwise
if jurisdiction is vested upon an administrative body, no resort to courts can be made
until the administrative body shall have acted on the matter.
2.
In exercising its primary jurisdiction, a court has the inherent jurisdiction to
determine issues incidental to its exercise. This is known as the Doctrine of Ancillary
Jurisdiction.
LEVELS OF SUBJECT MATTER JURISDICTION
1.
JURISDICTION OF THE SUPREME COURT
The jurisdiction of the Supreme Court in civil cases of which it cannot be deprived
and which cannot be diminished by Congress is to review, revise, reverse, modify, or
affirm on appeal or certiorari as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
a) all cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question;
b) all cases involving the legality of any tax, impost, assessment, or toll, or any
penalty imposed in relation thereto;
c) all cases in which the jurisdiction of any lower court is in issue; and
d) all cases in which only an error or question of law is involved.
The foregoing Constitutional definition is of appellate jurisdiction. Congress,
however, is not prohibited from increasing or adding to this Constitutionally-defined
35
36
Mercado v. Ubay, 187 SCRA 719

Latchme Motoomull v. Dela Paz, 187 SCRA 743
jurisdiction. And so Congress has given the Supreme Court original jurisdiction over
cases affecting ambassadors, other public ministers, and consuls and petitions for the
issuance of writs of certiorari, prohibition and mandamus against the Court of Appeals.
Congress has also vested the Supreme Court with jurisdiction, concurrent with the
RTCs, over petitions for the issuance of the writs of certiorari, prohibition, habeas
corpus, and in actions brought to prevent and restrain violations of law concerning
monopolies and combinations in restraint of trade.
The appellate jurisdiction in civil cases of the Supreme Court as defined in the
Constitution had been revised and expanded a little bit more by law to include all cases
involving petitions for naturalization or denaturalization, all decisions of the Auditor
General, if the appellant is a private person or entity, and final judgments or orders of
the Commission on Elections.
2.
JURISDICTION OF THE COURT OF APPEALS
The Court of Appeals has both original and appellate jurisdiction. Its original
jurisdiction, which is exclusive, is over actions for annulment of RTC judgments. Its
original jurisdiction, which is concurrent with the Supreme Court and the RTCs, is to
issue writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and
auxiliary writs or processes, whether or not in aid of its appellate jurisdiction.
The appellate jurisdiction of the Court of Appeals, which is exclusive, is over final
judgments or resolutions of RTCs and quasi-judicial agencies, such as the Securities
and Exchange Commission, Sandiganbayan and the National Labor Relations
Commission.
3.
JURISDICTION OF REGIONAL TRIAL COURTS
The RTCs are our second-level trial courts. As the Supreme Court and the Court
of Appeals, RTCs have both original and appellate jurisdiction in civil cases.
Their original jurisdiction is concurrent with the Supreme Court and the Court of
Appeals in the issuance of writs of certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunctions but, as issued by RTCs, these writs may be enforced
only within their respective regions, and over actions affecting ambassadors and other
public ministers and consuls.
The original jurisdiction of RTCs, which is exclusive, is broad and covers the
following cases:
a)
All civil actions in which the subject of the litigation is incapable of

pecuniary estimation;
b)
All civil actions which involve the title to, or possession of, real property, or
any interest therein, where the assessed value of the property involved
exceeds Two hundred thousand pesos (P200,000.00) or for civil actions in

Metro Manila, where such value exceeds Four hundred thousand pesos
(P400,000.00) except actions for forcible entry into and unlawful detainer
of lands or buildings, original jurisdiction over which is conferred upon the
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit
Trial Courts;
c)
All actions in admiralty and maritime jurisdiction where the demand or

claim exceeds Two hundred thousand pesos (P200,000.00) or in Metro
Manila, where such demand or claim exceeds Four hundred thousand
pesos (P400,000.00);
d)
All matters of probate, both testate and intestate, where the gross value of
the estate exceeds Two hundred thousand pesos (P200,000.00) or, in
probate, both testate and intestate, where the gross value of the estate
exceeds Two hundred thousand pesos (P200,000.00) or, in probate
matters in Metro Manila, where such gross value exceeds Four hundred
thousand pesos (P400,000.00);
e)
All actions involving the contact of marriage and marital relations;
f)
All cases not within the exclusive jurisdiction of any court, tribunal, person
or body exercising jurisdiction of any court, tribunal, person or body
exercising judicial or quasi-judicial functions;
g)
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
h)
All other cases in which the demand, exclusive of interest, damages of

whatever kind, attorneys fees, litigation expenses, and costs or the value
of the property in controversy exceeds Two hundred thousand pesos
(P200,000.00) or, in such other cases in Metro Manila, where the demand,
exclusive of the above-mentioned items exceeds For hundred thousand
pesos (P400,000.00).
The appellate jurisdiction of the RTCs is over all cases decided by Metropolitan
Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in their respective
territorial jurisdiction.
The term damages of whatever kind has been specially defined by the
Supreme Court for purposes of determining the jurisdictional amount in respect to the
jurisdiction of the RTC. This term is understood to apply only to cases when the
damages are merely incidental to or a consequence of the main cause of action, and
that therefore where the claim for damages is the main cause of action or one of the
causes of action, the amount of the claim shall be considered in determining the
jurisdiction of the court.
The Supreme Court has however designated certain branches of the RTCs to
handle exclusively certain cases as corporate and intellectual property cases.
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:
a) 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;
b) 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
c) 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.
RULE I
1.
37
GENERAL PROVISIONS
The Rules shall be known and cited as the Rules of Court. 37
Section 1, Rule 1, 1997 Rules of Civil Procedure
2.
They apply in all courts, except as otherwise provided by the Supreme Court 38 in
civil, criminal and special proceedings.39
2.1
For purposes of the subject matter, only Rules 1 to 71 or the 1997 Rules
of Civil Procedure shall be discussed herein.
2.2
A Civil Action is one by which a party sues another for the enforcement or
protection of a right or the prevention or redress of a wrong. Examples: To
enforce payment of a loan or to eject an intruder on ones property.
2.3
Civil Actions may be considered as:
2.4
38
(a)
Ordinary or Special, while both are governed by the rules for

ordinary civil actions, there are specific rules prescribed for a
special civil action.
(b)
In Personam, which is an action brought against a person based on

personal liability to the person bringing the action. The purpose of
the action is to impose through the judgment of a court, some
responsibility or liability directly upon the person of the defendant. 40
In this kind of action, no one other than the defendant is held liable,
not the whole world.
(c)
In Rem, is an action that is directed against the thing itself rather

than the person, it is directed against the thing, property or status of
a person and seeks judgments with respect thereto against the
whole world.41 An example would be an action for registration of
land as the judgment thereon is binding upon the whole world.
(d)
Quasi in Rem, is an action that names a person as a defendant but

its object is to subject the persons interest in property to a
corresponding lien or obligation. 42
It deals with the status,
ownership or liability of a particular property but which are intended
to operate on these questions only as between the particular
parties to the proceedings and do not cut off the rights and interests
of all possible claimants. Examples are actions for partition,
attachment or foreclosure of mortgages.
Note the distinctions between actions in personam, on one hand, and

actions in rem or quasi in rem on the other, is essential as far as
jurisdiction. In an action in personam, jurisdiction over the person of the
defendant is necessary for the court to validly try and decide the case. In
Supra, Section 2, Rule 1

40
Domagas v. Jensen, 448 SCRA 663
41
Ching v Court of Appeals, 181 SCRA 9
42
Ramos v. Ramos, 399 SCRA 43
39
a proceeding in rem or quasi in rem, jurisdiction over the person of the

defendant is not a prerequisite to confer jurisdiction on the court provided
that the court acquires jurisdiction over the res. Jurisdiction over the res is
acquired either (1) by the seizure of the property under legal process,
whereby it is brought into actual custody of the law; or (2) as a result of the
institution of legal proceedings, in which the power of the court is
recognized and made effective.43
3.
4.
43
Civil Actions can also be distinguished as:

3.1
Real Actions are those which affect title to, or possession of real property
or any interest therein.44 All others are personal actions.45
3.2
In a real action, it is founded upon the privity of real estate. That means
that realty or any interest therein is the subject matter of the action. What
is essential is that as far as the real property is concerned, the issues are
title to, ownership, possession, partition, foreclosure of mortgage or
condemnation. Hence, an action for damages suffered by real property is
a personal action as it does not involve any of the listed issues.
3.3
An action to annul a contract of loan and its accessory real estate

mortgage is a personal action. In a personal action, the plaintiff seeks
recovery of personal property, the enforcement of a contract or recovery of
damages. A real action is an action affecting title to real property or for
recovery of possession, or for partition or condemnation of, or foreclosure
of mortgage on real property. The rule on real actions only mentions an
action for foreclosure of real estate mortgage; it does not include an action
for cancellation or annulment of a real estate mortgage. 46
3.4
The distinction between a real action and a personal action is important for
the purpose of determining the venue of the action.
3.5
An action in personam is not necessarily a personal action. Nor is a real

action necessarily an action in rem. An in personam or an in rem action is
a classification of actions according to the object of the action. A personal
and real action is a classification according to foundation. It is in rem
when directed against the whole world. For instance, an action to recover,
title or possession of real property is a real action, but it is an action in
personam. It is not brought against the whole world but against the
person upon whom the claim is made.47
Distinguishing civil actions from other kinds of actions:
Biaco v. Philippine Countryside Rural Bank, GR No. 161417, February 8, 2007

45
46
Chua vs. Total Office Products and Services, Inc., 471 SCRA 500
47
Republic v Court of Appeals, 315 SCRA 600
44
4.1
Criminal Action is one by which the state prosecutes a person for an act or
omission punishable by law.
4.2
A Special Proceeding is a remedy by which a party seeks to establish a

status, right or a particular fact. In addition, a civil action is adversarial,
while a special proceeding may not be so as it may involve only 1 party.
The object of a civil action is the formal demand of a right by one against
the other, while in a special proceeding; it is the declaration of a status,
right or a particular fact.
5.
They do not apply to election cases, land registration, cadastral, naturalization
and insolvency, and other cases not herein provided, except by analogy or in suppletory
character and whenever practicable and convenient. 48
6.
The rules have retroactive application in the sense that they shall be held to
apply to actions pending or undetermined at the time of their effectuality. 49
6.1
The exceptions to retroactive application are: (a) the statute itself or by

implication provides that pending actions are excepted (b) it will impair
vested rights (c) to the mind of the court, it will work injustice (d) it would
involve intricate problems of due process or impair the courts
independence
WHEN AN ACTION IS COMMENCED

1.
An action is commenced upon the filing of the original complaint in court. Filing
refers to the act of presenting the complaint to the clerk of court and the payment of the
requisite docket and filing fees. Filing is deemed done only upon payment regardless of
the actual date of the filing.50
1.1
An exception is when the plaintiff is authorized to litigate as a pauper

litigant as he is exempt from the payment of filing fees.
2.
If an additional defendant is impleaded in a later pleading, it is commenced as
far as the additional defendant on the date of the filing of the later pleading, irrespective
of whether the motion for its admission, if necessary is denied by the court. 51
3.
Note that the commencement of the action interrupts the period of prescription as
to the parties to the action.52
HOW SHOULD THE RULES BE CONSTRUED
48
Supra,,Section 4, Rule 1
Nypes v. Court of Appeals, 478 SCRA 115
50
Magaspi v. Ramolete, 115 SCRA 193
51
52
Cabrera v Tiano,8 SCRA 542
49
1.
The rules shall be construed liberally in order to promote their objective of
securing a just speedy and inexpensive disposition of every action or proceeding. 53
2.
1.1
Liberal construction is the controlling principle to effect substantial justice.

Litigation should as much as possible, be decided on their merits, and not
on technicalities.
1.2
Rules must not be applied to rigidly so as not to override substantial

justice.54 Rules of procedure must be used to facilitate not to frustrate the
ends of justice.55
1.3
It does not mean, however, that procedural rules are to be ignored or

disdained at will to suit the convenience of a party.56
Liberal construction of the rules should be made by the courts in cases:

a) a rigid application will result in manifest failure or miscarriage of justice,
especially if a party successfully shows that the alleged defect in the
questioned final and executory judgment is not apparent on its face or
from the recitals contained therein
b) where the interest of substantial justice will be served
c) where the resolution of the motion is addressed solely to the sound and
judicious discretion of the court
d) where justice to the adverse party is not commensurate with the degree of
this thoughtlessness in not complying with the procedure prescribed. 57
3.
A party litigant should be given the fullest opportunity to establish the merits of
his complaint or his defense. He ought not to lose life, liberty or honor or property on
technicalities.
3.1
Rules of procedure should be viewed as mere tools designed to facilitate

the attainment of justice. An example is the matter of the attachment of
copies to petitions58 or failure to indicate material dates in the petition. 59
4.
Note that in doing so, substantial justice and equity considerations must not be
sacrificed.
53
Supra,Section 6, Rule 1
De La Cruz v. Court of Appeals, GR No. 139442, December 6, 2006
55
Canton v City of Cebu, GR No. 152898, February 12, 2007
56
Vda De Toledo v Toleda, 417 SCRA 260
57
Seapower Shipping Enterprises, Inc. v CA, 360 SCRA 173, Tan v CA, 295 SCRA 755
58
Alberto v Court of Appeals, 334 SCRA 756
59
Fulgencio v NLRC, 411 SCRA 69
54
4.1
Periods for filing are as a matter of practice, strictly construed.
4.2
Neither can liberality of the rules be invoked if it will result in the wanton
disregard of the rules or cause needless delay in the administration of
justice.60
5.
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.61
6.
The rules and procedure laid down for the trial court and the adjudication of
cases are matters of public policy.
6.1
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.62
6.2
They are required to be followed except only for the most persuasive of
reasons as when transcendental matters of life, liberty or state security is
involved. Litigation is not a game of technicalities. It is equally true,
however, that every case must be presented in accordance with the
prescribed procedure to ensure an orderly and speedy administration of
justice.63
7.
The Supreme Court has the power to suspend or set aside its rules in the higher
interest of justice.64 Specifically, the reasons that will warrant the suspension are: (a) the
existence of special or compelling reasons (b) the merits of the case (c) a cause not
entirely attributable to the fault or negligence of the party favored by the suspension (d)
a lack of showing that the review is frivolous or dilatory, and (e) the other party will not
be prejudiced thereby.65
RULE 2
CAUSE OF ACTION
CAUSE OF ACTION DEFINED

1.
60
The basis of an ordinary civil action is a cause of action. 66
El Reyno Homes v Ong, 397 SCRA 563

Sebastian v Hon. Morales, 397 SCRA 549, Duremdes v Duremdes, 415 SCRA 684
62
Republic v Hernandez, 253 SCRA 509
63
Mindanao Savings Loan Association v. De Flores, 469 SCRA 416
64
Fortica v Corona, GR No. 131457, April 24, 1998
65
Sarmiento v. Zaratan, GR No. 167471, February 5, 2007
66
61
2.
A cause of action is the act or omission by which a party violates a right of
another.67
THE REQUISITES OF A CAUSE OF ACTION
1.
The requisites for a cause of action are: (a) a right in favor of the plaintiff by
whatever means and under whatever law it arises or is created (b) an obligation on the
part of the defendant to respect and not to violate such right (c) an act or omission on
the part of the defendant constituting a violation of the plaintiffs right. 68
DISTINGUISHING IT FROM AN ACTION AND A RIGHT OF ACTION
1.
An action is the suit filed in court for the enforcement or protection of a right, or
the prevention or redress of a wrong, while a cause of action is the basis for the filing of
the action.
2.
The right of action is the right to commence and maintain an action, it is a
remedial right that depends on substantive law, while a cause of action is a formal
statement of the operative facts that give rise to such remedial right which is a matter
of statement and is governed by procedural law. The right of action which is procedural
in character is the consequence of the violation of the right of the plaintiff. Hence, there
is no right of action where there is no cause of action.
2.1
The distinction is best used to explain the principle that the existence of a
cause of action may only be ascertained from the allegations of the
complaint.69
HOW MANY SUITS CAN BE FILED FOR A CAUSE OF ACTION

Same Objective Test if a party has only one objective in filing two cases, there exists identity
of causes of action and reliefs based on the same objective standard.70
1.
A party may not institute more than one suit for a single cause of action. 71
2.
The practice of splitting a cause of action is discouraged because it breeds
multiplicity of actions, clogs the dockets of the courts and operates to cause
unnecessary expense to the parties.
3.
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. 72 This is also
known as Splitting a Cause of Action.
67
Supra, Section 2, Rule 2, PNOC v. Court of Appeals, GR No. 165433, February 6, 2007
Navao v CA, 251 SCRA 545
69
Equitable Bank v CA, 425 SCRA 544
70
Clark Development Corporation v Mondragon Leisure Resorts, 517 SCRA 203
71
72
68
3.1
The remedy of the defendant is to file a motion to dismiss. If the action is

pending when the second action is filed, the dismissal is based on litis
pendentia or if a final judgment has been rendered in the first action when
the second is filed, the dismissal is based on res judicata.
3.2
Note though that the rule does not confine itself to a dismissal of the
second action. As to which action is to be dismissed would depend on
judicial discretion and attendant circumstances.
4.
The rule on splitting a cause of action applies not only to complaints but also to
counter-claims and cross-claims.73
5.
The singleness of a cause of action is determined as follows:

5.1
In an action Ex Delicto or one arising from the fault or negligence of a

defendant, 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 against double recovery for the same act or
omission which, obviously stems from the fundamental rule against unjust
enrichment.74
5.2
In an action Ex Contractu or one arising out of or is founded on a contract,

the rules are as follows:
(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.
75
(b)
73
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
Mariscal v. Court of Appeals, 311 SCRA 51

Joseph v Bautista, 170 SCRA 540
75
Articles 1484,1486, NCC
74
shall be integrated into a single cause of action. Example: Contract

for delivery of goods in part or over a period.
(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. 76 This is known as the Doctrine
of Anticipatory Breach.
IF A PARTY HAS SEVERAL CAUSES OF ACTION

1.
He can join his causes of action 77 as he may in one pleading assert, in the
alternative or otherwise, as many causes of action as he may have against the
opposing party. It is the assertion of as many causes of action as a party may have
against another in one pleading alone.
2.
It has also been defined as the process of uniting two or more demands or rights
of action in one action.78
3.
Joinder is subject to the following conditions:

3.1
Party joining the causes of action shall comply with the rule on joinder of
parties, which provides that : All persons in whom or against whom any
right to relief is respect to or arising out of the same transaction is alleged
to exist, whether jointly, severally or in the alternative, may except as
otherwise provided in these rules, join as plaintiffs or be joined as
defendants in one complaint, where any question of law or fact common to
all such plaintiffs or to all such defendants may arise in the action. 79 Note
that the common question of law or fact is relevant only when there are
multiple plaintiffs or defendants.
3.2
Joinder does not allow the inclusion of special civil actions or actions
governed by special rules. Example: An action for a sum of money cannot
be joined with an action for iIlegal detainer
3.3
Where causes of action are between same parties but pertain to different
venues or jurisdictions, joinder may be allowed in the RTC provided one of
the causes of action falls within its jurisdiction and venue lies therein.
3.4
When the claims in all causes of action are principally for recovery of
money, the aggregate amount shall be the test of jurisdiction.
EFFECT OF MISJOINDER
76
Blossom & Co v Manila Gas Corporation, 55 Phil 226

78
1 C.J.S., Actions 61
79
77
1.
Upon motion of a party or on the initiative of the court, a misjoined cause of
action may be severed and proceeded with separately.80
2.
Misjoinder is not ground for a motion to dismiss.
RULE 3
PARTIES TO CIVIL ACTIONS
WHO MAY BE PARTIES TO A CIVIL ACTION

1.
Only natural or juridical persons or entitles authorized by law may be parties in a
civil action.81 They are called: Plaintiff he is one who has interest in the subject of the
action and obtaining the relied demanded. He may be the claimant in the original
complaint, the counter-claimant in the counter claim, or cross-claimant in a cross-claim
or the third party plaintiff and the Defendant he is one who has an interest in the
controversy adverse to the plaintiff. He may be the original defending party, the
defendant in a counter-claim, or cross-defendant in a cross-claim.
1.1
2.
For ready reference, a counter-claim is any claim which a defending party

may have against an opposing party.82A cross-claim is a claim by one
party against a co-party arising out of the transaction or occurrence that is
the subject matter either of the original action or of a counter-claim
therein.83A third party claim is a claim that a defending party may, with
leave of court, file against a person not party to an action for contribution,
indemnity, subrogation or any other relief, in respect to his opponents
claim.84
Juridical persons include:

2.1
The state or any of its political subdivisions, while considered as juridical

entities, they can sue but as a general rule, they cannot be sued without
its consent. It is deemed to have given consent when: (a) it enters into a
private contract (b) it enters into a business operation unless it is an
incident of its primary government function (c) it sues a private party,
unless the suit is to resist a claim (d) when there is a failure to abide with
what the law or contract provides.
A suit is considered as against the state when: (a) it is against the
Republic of the Philippines (b) it is against a government agency or office
without juridical personality (c) it is against the officers or agents of the
government and involves a financial liability.
80

Supra,,Section 1, Rule 3
82
83
84
81
2.2
Corporations, institutions and entities for public interest or purpose,

created by law, like government agencies and water districts.
2.3
Corporations, partnerships, and associations for private interest or

purpose to which the law grants juridical personality, separate and distinct
from that of a shareholder, partner or member.
2.4
A partnership having capital of P 3,000.00 that fails to comply with

registration requirements.85
2.5
A dissolved corporation within a 3 year period after dissolution to settle its

affairs.86
2.6
A foreign corporation cannot be a plaintiff in suit when it is transacting

business in the Philippines without a license.
3.
Entities authorized by law are (a) recognized labor organizations (b) estate of a
deceased person87 (c) Roman Catholic Church88
4.
Entities without legal personality referring to 2 or more persons not organized as
an entity with juridical personality enter into a transaction, they may be sued under the
name by which they are generally or commonly known but in their answer to the
complaint, their names and addresses must be revealed. 89
4.1
It can also cover a corporation by estoppel 90 or partnership by estoppel91
5.
A sole proprietorship may not be a party as it is neither a natural, juridical or
entity allowed or authorized by law. If one sues as such, the action may be dismissed on
the ground of lack of capacity to sue. It does not possess a juridical personality separate
and distinct from the personality of the owner of the enterprise. 92 It cannot sue or file or
defend an action in court.93
WHEN PARTIES IMPLEADED ARE NOT AUTHORIZED TO BE PARTIES
1.
Where the plaintiff is not a natural or juridical person, or an entity authorized by
law, a motion to dismiss may be filed on the ground that the plaintiff has no legal
capacity to sue. Do not confuse it with one who has capacity to sue but he is not the
85
Article 1772 in relation to Article 1768, NCC

Section 122, BP 68
87
Nazareno v. Court of Appeals, 343 SCRA 637
88
Versoza v. Fernandez, 49 Phil 627
89
90
Section 21, BP 68
91
Article 1825, NCC
92
Mangila v Court of Appeals, 387 SCRA 162, Yao Ka Sin Trading v Court of Appeals, 209 SCRA 763
93
Juasing Hardware v Mendoza, 115 SCRA 783
86
real party in interest as the ground for dismissal then is failure to state a cause of
action.94
2.
Where it is the defendant who is not any of the above, the complaint may be
dismissed on the ground that the pleading asserting the claim states no cause of
action or failure to state a cause of action, because there cannot be a cause of action
against one who cannot be a party to a civil action.
PARTIES IN INTEREST
1.
A real party in interest is the party who stands to be benefited or injured by the
judgment or party entitled to the avails of the suit. Unless otherwise authorized by law of
the rules, like in a class suit, all actions must be prosecuted or defended in the name of
the real party in interest.95
1.1
A real party in interest-plaintiff is one who has a legal right, while a real
party in interest-defendant is one who has a correlative obligation, whose
act or omission violates the legal rights of the former. 96 Hence, the
determination of who is a real party in interest goes back to the elements
of a cause of action. Evidently, the owner of the right violated stands to be
the real party in interest as plaintiff and the person responsible for the
violation is the real party in interest defendant. 97
1.2
To be a real party in interest, the interest must be real, which is a present

substantial interest as distinguished from a mere expectancy or a future,
contingent, subordinate or consequential interest. It is an interest that is
material and direct, as distinguished from a mere incidental interest in the
question.98
1.3
Illustrations: (a) In a case where a lawful possessor is disturbed in his

possession, it is the possessor, not necessarily the owner, who can bring
an action to recover the possession. 99 (b) The parties to a contract are the
real parties in interest in an action upon it based on the doctrine of
relativity of contracts under Article 1311, NCC, unless it conveys a benefit
to a person not a party thereto (c) Actions under Articles 1313 and 1381,
NCC when the contracts are entered into in fraud of creditors. (d) Suits by
corporations must be in its name, not that of the stockholders or members.
2.
When a suit is not brought in the name of the real party in interest, it may be
dismissed on the ground that the complaint states no cause of action. 100 Note that the
94
Balagtas v. Court of Appeals, 317 SCRA 69

96
Gan Hock v. Court of Appeals, 197 SCRA 223
97
Lee v. Romillo, 161 SCRA 589
98
Samaniego v. Aguila, 334 SCRA 438
99
Philippine Trust Company v. Court of Appeals, 320 SCRA 719
100
Tankiko v Cesar, 302 SCRA 559
95
dismissal is not due to lack of or no legal capacity to sue nor lack of legal personality, as
the latter is not ground for dismissal for under the 1997 Rules of Civil Procedure.
2.1
It states no cause of action because it is not being prosecuted in the name

of the real party in interest.
2.2
Lack of Legal Capacity to Sue means that the plaintiff is not in exercise of
his civil rights, does not have the necessary qualification to appear or does
not have the character or representation he claims. Example: Trustee or
Minor, as distinguished from Lack of Legal Personality means that the
plaintiff is not the real party in interest. Dismissal is based on the fact that
the complaint states no cause of action
3.
Legal standing means a personal and substantial interest in the case such that
the party has sustained or will sustain direct injury as a result of the act being
challenged. The term interest is material interest, an interest in issue, and to be affected
by the decree, as distinguished from mere interest in the question involved, or a mere
incidental interest. Moreover, the interest must be personal and not one based on a
desire to vindicate the constitutional right of some third or unrelated party.
3.1
However, the concept of standing because of its constitutional

underpinnings is very different from questions relating to whether or not a
particular party is a real party-in-interest. Although both are directed
towards ensuring that only certain parties can maintain an action, the
concept of standing requires an analysis of broader policy concerns. The
question as to who the real party-in-interest is involves only a question on
whether a person would be benefited or injured by the judgment or
whether or not he is entitled to the avails of the suit. 101
3.2
Locus standi is defined as a right of appearance in a court of justice on a

given question. In private suits, standing is governed by the real-partiesin interest rule found in Section 2, Rule 3 of the Rules of Court which
provides that every action must be prosecuted or defended in the name of
the real party-in-interest.102 In other cases, locus standi is a partys
personal and substantial interest in a case such that he has sustained or
will sustain a direct injury as a result of the governmental act being
challenged. It calls for more than generalized grievance. The term
interest means a material interest, an interest in issue affected by the
decree, as distinguished from a mere interest in the question involved or a
mere incidental interest.103 Unless a persons constitutional rights are
adversely affected by the statute or ordinance, he has no legal standing.
4.
Be that as it may, we have on several occasions relaxed the application of these
rules on legal standing:
101
Kilosbayan, Inc. vs. Morato, 246 SCRA 540

Baltazar vs. Ombudsman, G.R. No. 136433, December 6, 2006
103
Velarde v Social Justice Society, 392 Phil 618, IBP v Zamora, 338 SCRA 81
102
In not a few cases, the Court has liberalized the locus standi requirement when a
petition raises an issue of transcendental significance or paramount importance to the
people. Recently, after holding that the IBP had no locus standi to bring the suit, the
Court in IBP v. Zamora nevertheless entertained the Petition therein. It noted that the
IBP has advanced constitutional issues which deserve the attention of this Court in view
of their seriousness, novelty and weight as precedents. 104
4.1
Objections to a taxpayers suit for lack of sufficient personality, standing or

interest are procedural matters. Considering the importance to the public
of a suit assailing the constitutionality of a tax law, and in keeping with the
Courts duty, specially explicated in the 1987 Constitution, to determine
whether or not the other branches of the Government have kept
themselves within the limits of the Constitution and the laws and that they
have not abused the discretion given to them, the Supreme Court may
brush aside technicalities of procedure and take cognizance of the suit. 105
4.2
There being no doctrinal definition of transcendental importance, the

following determinants formulated by former Supreme Court Justice
Florentino P. Feliciano are instructive: (1) the character of the funds or
other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public
respondent agency or instrumentality of the government; and (3) the lack
of any other party with a more direct and specific interest in raising the
questions being raised.106
CLASSIFICATION OF REAL PARTIES IN INTEREST

1.
Indispensable Party is a party without whom no final determination can be had of
an action.107 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.108
1.1
104
Without the presence of indispensable parties to the suit, the judgment of

the court cannot attain real finality.109 Strangers to a case are not bound by
the judgment rendered by the court. 110
Velarde v. Social Justice Society, supra at note 22, citations omitted.

Bugnay Construction and Development Corporation v. Hon. Laron, G.R. No. 79983, 10 August 1989, 176 SCRA
240, 251, citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, G.R. No. 81311, 30 June
1988, 163 SCRA 371, 378.
106
Francisco v. Nagmamalasakit na mga Manggagawang Pilipino, Inc., supra at note 30, citing Kilosbayan,
Incorporated v. Guingona, Jr., 232 SCRA 110 (1994)
107
108
Valenzuela v Court of Appeals, 363 SCRA 779
109
Domingo v Scheer, 421 SCRA 468
110
Lucman v Malawi, GR No. 159794, December 19, 2006
105
1.2
The essential tests of an indispensable party: (a) May relief be afforded

the plaintiff without the presence of the other party? (b) May the case be
decided on the merits without impairing the substantial rights of the other
party?111
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. 112 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.
2.1
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 indispensable party is impleaded for a
final determination of an action.
3.
Pro-Forma Party or nominal party is one who is joined as a plaintiff or defendant
not because such party has any real interest in the subject matter or because relief is
demanded, but merely because the technical rules of pleadings require the presence of
such party on the record.113
PERSONS WHO CAN SUE IN BEHALF OF A REAL PARTY IN INTEREST
The following may sue in behalf of a real party in 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.114 Examples of
representatives are: (a) trustee of an express trust (b) a guardian, executor or
administrator, or (c) a party authorized by law or the Rules.
1.2
111
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.115
PNB v. Militar, 467 SCRA 377

113
Samaniego v. Aguila, 334 SCRA 438
114
115
Article 1883, NCC
112
2.
Husband and Wife - as a general rule shall sue or be sued jointly, except as
provided by law.116 Non joinder of partys husband is not fatal. It is a mere formal
defect.117
2.1
They are required to sue and be sued jointly as they are joint
administrators of the Absolute Community or the Conjugal Partnership. 118
2.2
The exceptions provided by law are when the property relations of

husband and wife are governed by the rules on separation of property 119
or one is disposing of exclusive property.120
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.121
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. 122
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
litigation. His status as such exists only in that particular litigation in which
the appointment occurs.
3.2
Note that the appointment of a guardian ad litem may occur in the

following: for minor heirs when substituting for a deceased party 123,
incompetency or incapacity of a party 124, service of summons on a minor
or incompetent125, and when the best interest of the child require it. 126
JOINDER OF PARTIES
Joinder of Parties refers to the act of uniting several parties in a single suit either as
plaintiffs or defendants.
116

Miranda v Besa, 435 SCRA 532
118
Articles 96 and 124, Family Code
119
Article 145, Family Code
120
121
Villaranda v Villaranda, 423 SCRA 571
122
123
124
125
126
117
1.
The rule on joinder of parties states that: All persons in whom or against whom
any right to relief in respect to or arising out of the same transaction is alleged to exist,
whether jointly, severally or in the alternative, may except as otherwise provided in
these rules, join as plaintiffs or be joined as defendants in one complaint, where any
question of law or fact common to all such plaintiffs or to all such defendants may arise
in the action.127
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. Example: action by passengers of a common carrier for injuries sustained in an
accident, there is no community of interest, the extent of the interest is limited to the
extent of damages being claimed by each.
3.
It becomes compulsory when the parties to be joined are indispensable parties. 128
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.129 All the parties who are interested in the action as
plaintiffs or defendants are all indispensable parties but not all need to be joined.
5.
127
The three requisites of a class suit are:

5.1
The subject matter of the controversy is one of common or general

interest to many persons. There must be an indivisible right affecting many
individuals whose particular interest is of indeterminable extent and is
incapable of separation. This requires that the benefit to one is a benefit to
all. Example: A suit filed by minors represented by their parents, in behalf
of themselves and others equally concerned with the preservation of the
countrys resources, their generation as well as generations yet unborn to
compel the DENR Secretary to cancel all timber license agreements and
to cease and desist from receiving, accepting, processing, renewing or
approving new timber license agreements 130. The interest must be
common and not independent of each member of the class and should not
conflict with each other. For this reason, owners of subdivision lots in a
subdivision cannot sue as a class because their interest is only in their
respective lots.131
5.2
The parties affected are so numerous that it is impracticable to join all as

parties

129
130
Oposa v Factoran, 224 SCRA 792
131
Tuason v. Register of Deeds, 157 SCRA 613
128
5.3
The parties bringing or defending the class suit are found by the court to
be sufficiently numerous and representative as to fully protect the interest
of all.
5.4
To comply with the 2nd and 3rd requisite, the Complaint most allege: (1)
existence of a subject matter which is of common or general interest to
many persons, and (2) existence of a class and the number of persons
belonging to that class
6.
Improper for a class suit is when a claimant is interested only in collecting his
claims and has no concern in protecting the interests of the others 132 or each of the
plaintiffs has a separate claim or injuries not shared in common by the others. Hence,
each must prove his own damages.133
7.
It can be brought by the plaintiffs as a class or may be filed against the
defendants as a class
7.1
Any party in interest shall have the right to intervene to protect his
individual interest.
7.2
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. 134
EFFECTS OF FAILURE TO JOIN AN INDISPENSABLE PARTY OR A NECESSARY

PARTY
1.
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.
1.1
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.135
2.
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 (a) set forth the name of the
necessary party, if known and (b) state the reason for omission.
2.1
132
If the court finds the reason for the omission is not meritorious, it may
order the inclusion of the omitted necessary party if jurisdiction over his
person is obtained.
Cadalin v POEA Administrator, 238 SCRA 721

Newsweek Inc. v. IAC, 142 SCRA 171
134
135
NDC v Court of Appeals, 211 SCRA 422
133
2.2
If pleader fails to comply with order for inclusion without justifiable cause, it
shall be deemed a waiver of the claim against the party, but the noninclusion does not prevent the court from proceeding with the action, and
the judgment therein shall be without prejudice to rights of such necessary
party.136
3.
Misjoinder of parties is 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.137
3.1
A party is misjoined when he is made a party to the action although he

should not be impleaded. A party is not joined when he is supposed to be
joined but is not impleaded.
3.2
While misjoinder or non-joinder is not a ground for dismissal, the failure to

obey the order of the court to drop or add a party is a ground for
dismissal.138
IF A PARTY TO BE JOINED AS A PLAINTIFF DOES NOT CONSENT OR CANNOT BE

OBTAINED
1.
The non-consenting party may be made a defendant and the reason therefor
shall be stated in the complaint.139He will be known as the unwilling co-plaintiff.
WHO WILL PLAINTIFF SUE IF HE IS UNCERTAIN
1.
If the plaintiff is uncertain against whom of several persons he is entitled to relief,
he may join any or all of them as defendants in the alternative, although a right to relief
against one may be inconsistent with a right of relief against the other.140
2.
An example is in an action where the owner of goods is not sure whether they
were lost in transit or while it was on deposit in the warehouse of the arrastre operator.
He may sue the shipper or the operator of the warehouse in the alternative although the
right against the shipper is based on admiralty while that against the operator is based
on contract. Another is an action for damages arising from loss of goods due to a
collision.
IF THE IDENTITY/NAME OF THE DEFENDANT IS UNKNOWN
1.
He may be sued as the unknown owner, heir, devisee or by such other
designation as the case may require, when the identity or name is discovered, the
136

138
139
140
137
pleading must be amended accordingly.141 An example is an action to recover real

property from several unknown heirs of a common ancestor.
EFFECT OF DEATH OF A PARTY
1.
When a party dies and his claim is not extinguished, it shall be the duty of
counsel of the deceased party to inform the court within 30 days after such death of
the: (a) fact of death (b) name and address of the legal representative of the deceased
party.142. If counsel fails to comply, he may be subject to disciplinary action.
1.1
Once notice is given, the court shall order the legal representative to
appear and be substituted within 30 days from notice.
1.2
Examples of actions that survive are those arising from delict, 143 tortuous
conduct,144recovery of real or personal property145 recovery of money
arising from a contract, express or implied
1.3
Examples of actions that do not survive are personal actions of support,

annulment and legal separation. The court in this instance will just
dismiss. No substitution is required. The remedy is to file a claim before
the probate court under Rule 86.
2.
The purpose of substitution is the protection of the right of every party to due
process.146The non compliance renders the proceedings infirmed because the court
acquires no jurisdiction over the person of the legal representative of the deceased. 147
2.1
If no substitution occurs despite knowledge or notice of the death of a

party the proceedings undertaken shall be considered null and void as it
amounts to a lack of jurisdiction as the need for substitution is based on
the right of a party to due process.
2.2
Note though that in an ejectment case, the non substitution of the

deceased by his legal representatives because of the failure of counsel to
inform the court does not deprive it of jurisdiction. The judgment may be
enforced not only against the defendants but also against the members of
their family, their relatives, or privies who derived their right of possession
from the deceased defendant.148
3.
Note that heirs may be allowed to be substituted for the deceased without
requiring the appointment of an executor or administrator and the court can appoint a
guardian ad litem for minor heirs. When the defendant does not have any heirs, the
141

143
Aguas v Llamas, 5 SCRA 959
144
Melgar v. Buenviaje, 179 SCRA 196
145
Board of Liquidators v Kalaw, 20 SCRA 987
146
Torres v Court of Appeals, 278 SCRA 79
147
Brioso v Mariano, 396 SCRA 549
148
Florendo v. Coloma, 129 SCRA 304
142
court shall require the opposing party to procure the appointment of an executor or
administrator. This can also occur when no legal representative is named or if one is
named, he fails to appear within the specified period. The expenses if any, can be
recovered as costs.
3.1
Heirs may designate one or some of them as their representative before

the trial court.149
4.
There is no requirement for summons as it is the order of substitution and its
service that effects the substitution of the deceased by his representative.
5.
The effect of death is to terminate the attorney-client relationship. A deceased
client has no personality and cannot be represented by an attorney. 150Neither does he
become counsel for the heirs of the deceased unless his services are engaged by the
heirs.151
DEATH/SEPARATION OF A PUBLIC OFFICER

1.
If sued in his public capacity and he dies, resigns or otherwise ceases to hold
office. The action may be maintained and continued by or against his successor, if
within 30 days after successor assumes the office or such time as granted by the court
it is satisfactorily shown by a party that there is a substantial need for continuing and
maintaining it and that the successor adopts or continues or threatens to continue the
action of his predecessor.152
2.
Before substitution and there is no express assent, the public officer shall be
given reasonable notice of the application and be accorded an opportunity to be heard.
3.
The requisites for a valid substitution of a public officer who has sued or been
sued in his official capacity are: (a) satisfactory proof by any party that there is a
substantial need for continuing or maintaining the action (b) the successor adopts or
continues or threatens to adopt or continue the acts of his predecessor (c) the
substitution is effected within 30 days after the successor assumes office or within the
time granted by the court, and (d) notice of the application to the other party. 153
4.
The failure to make the substitution is ground for the dismissal of the action.
EFFECT OF DEATH OF THE DEFENDANT ON A CONTRACTUAL MONEY CLAIM

1.
If the action is for the recovery of money that arises from a contract, express or
implied, and the defendant dies before entry of a final judgment the rule is it will not be
149
San Juan v. Cruz, G.R. No. 167321, July 31, 2006

Lavina v. Court of Appeals, 171 SCRA 691
151
Lawas v Court of Appeals, 146 SCRA 173
152
153
Rodriguez vs. Jardin, G.R. No. 141834, July 30, 2007
150
dismissed but shall be allowed to continue until entry of judgment, a favorable judgment
obtained shall be enforced in the manner provided by the rules for prosecuting claims
against the estate of a deceased person.154
2.
Hence, in case of the death of the obligor the rules 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. Note
further, that if property has been levied upon before death, it can disposed of in the
manner provided by the rules on execution of judgments because it has already been
segregated from the estate. If there is a deficiency, a money claim can be filed
subsequently.
2.
If the claim does not arise from a contract, like claims for recovery, enforcement
of a lien or torts, the rules are: (a) if he dies before the action is filed, it may be filed
against the executor or administrator (b) if already filed, it continues to final judgment
and may be executed on as against the executor or administrator.155
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. 156
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.157
5.
If it is the plaintiff who dies, the rules are: (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.158
154

156
UST v Court of Appeals, GR No. 124250, October 18, 2004
157
Alipio v Court of Appeals, GR No. 134100, September 29, 2000
158
Supra, Section 3 and 18, Rule 3
155
EFFECT OF A TRANSFER OF INTEREST PENDING LITIGATION

1.
The action may be continued by or against the original party, unless the court
upon motion directs the person to whom interest is transferred to be substituted in the
action or joined with the original party.159
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. 160
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 lite. 161
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.162
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.
159
2.1
Attached to the motion is an affidavit attesting to the fact that he does not
earn a gross income of PHP 4,000.00 in Metro-Manila, or PHP 3,000.00
elsewhere and has no real property with a fair market value of PHP
50,000.00.
2.2
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.
2.3
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. 163

State Invetsment House, Inc. v Court of Appeals, 318 SCRA 47
161
Jocson v Court of Appeals, GR 88297, March 22, 1990
162
Supra, Section 21
163
Section 19, Rule 141, Rules of Court
160
3.
The effect of being allowed to litigate as an indigent or pauper litigant are: (a)
exemption from the payment of docket fees and other lawful fees (b) 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.
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 it is not paid, execution shall issue
on the payment thereof without prejudice to other sanctions.
5.
On appeal, a motion to litigate as an indigent or pauper litigant is allowed.
WHEN SOLICITOR GENERAL IS REQUIRED TO APPEAR

1.
In any action involving the validity of any treaty, law, ordinance, executive order,
presidential decree, rule or regulation, the court, in its discretion, may require the
appearance of the Solicitor General, who may be heard in person or through a
representative duly designated by him.164
RULE 4 VENUE OF ACTIONS
VENUE DEFINED AND DISTINGUISHED
1.
Venue is the place where the action is to be commenced and tried. It has also
been defined as the proper location for the trial of a case.
2.
Distinguishing it from jurisdiction: (a) venue is the place where action is
commenced and tried, jurisdiction is the authority of a court to hear
and decide the
action (b) venue may be waived, jurisdiction over the subject matter cannot be waived,
but that over the person can be waived (c) venue may be the subject of a written
agreement, jurisdiction cannot be subject of a written agreement 165 (d) a court cannot
motu-propio dismiss on improper venue, while if it has no jurisdiction, a court can
motu-propio dismiss the action.
3.
Venue establishes a relation between the plaintiff and defendant, while
jurisdiction establishes a relation between the court and subject matter.
4.
Improper venue is not jurisdictional. To illustrate: If a case for illegal detainer is
filed in the MTC-Manila but should have been filed in the MTC-Baguio as the property is
located in Baguio, the dismissal is due to improper venue as every MTC has jurisdiction
over illegal detainer cases. Territorial jurisdiction applies only in criminal cases where
venue is also jurisdictional.
RULES ON VENUE
164
165

NOcum v Tan, 470 SCRA 639
1.
If it is a Real Action or one that affects title to or possession of real property, or an
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. 166
1.1
Is the complaint for cancellation of a real estate mortgage with damages, a

real or personal action? It is a real action; the controlling factor in
determining venue of such a case is the primary objective for which it is
filed. An action for cancellation of a real estate mortgage is necessarily an
action affecting title to real properties since the primary objective is to
recover the properties that the bank had foreclosed on. 167
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 non-resident defendant, where he may be found at
the election of the plaintiff168
166
2.1
Reside means the place of abode, whether permanent or temporary, as

distinguished from domicile or the fixed permanent residence, where if one
is absent he intends to return.
2.2
In personal actions, it is the residence of the proprietor, not the business

address of the sole proprietorship that is considered to determine venue
as a sole proprietorship has no legal personality.169
2.3
R engaged the services of L as geodetic surveyor to subdivide two parcels

of land located in Batangas. As payment for Ls services, R agreed to
given him one lot. After the survey, R delivered to L possession of one lot
as payment for his services. However, R failed to deliver to L the tile of the
lot. L, who resides in Quezon City, filed with the RTC of Quezon City an
action against R for specific performance to compel R to deliver to him the
title to the lot. R moved to dismiss on the ground of improper venue,
contending that since his is a real action, the complaint must be filed in the
RTC of Batangas where the lot is situated. Is R correct? No, R is not
correct. This action for specific performance is a personal action. The
venue therefore, was properly laid in Quezon City where the plaintiff
resides. It is not a real action because plaintiff L is not seeking the

Go v UCPB, GR No. 156187, November 11, 2004
168
169
Mangila v Court of Appeals, 387 SCRA 162
167
recovery of the lot as he is already in possession thereof. He is merely

asking the delivery of the title to him, which is a personal action. 170
3.
If the defendant is a non-resident or one who does not reside and is not found in
the Philippines and the action affects the personal status of the plaintiff, or any property
of said defendant located in the Philippines, the action may be commenced and tried in
the court of the place where the plaintiff resides, or where the property or any portion
thereof is situated or found.171
3.1
Actions affecting the personal status of the plaintiff refers to personal

actions of annulment of marriage, nullity of marriage, legal separation,
declaration of presumptive death
3.2
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.
3.3
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. 172
THE RULES ON VENUE ARE NOT APPLICABLE

1.
In cases where a specific rule or law provides otherwise as below illustrated:

1.1
Quo Warranto proceedings may be instituted in the Supreme Court, Court

of Appeals or the Regional Trial Court exercising territorial jurisdiction over
the area where the respondent/s resides. If the Solicitor General
commences the action, he may do so in the Supreme Court, Court of
Appeals or the Regional Trial Court of Manila. 173
1.2
The criminal or civil action for damages due to libel can only be instituted
either in Regional Trial Court of the place where he holds office or in the
place where the alleged libelous article was printed and first published;
and if the offended parties are private individuals, the venue shall be in the
Regional Trial Court of the place where the libelous article was printed and
first published or where any of the offended parties actually resides at the
time of the commission of the offense.174
170
Dimo Realty & Development, Inc. et al. v.

Dimaculangan, G.R. NO. 130991, March 11, 2004
171

Dilweg v Philipps, 12 SCRA 243
173
174
Article 360, Revised Penal Code
172
1.3
Intracorporate Controversies are to be filed in the Regional Trial Court

where the principal office of the corporation is located. 175
2.
Where the parties have validly agreed in writing before the filing of the action as
to exclusive venue.176
2.1
Any agreement as to venue must be in writing and for exclusivity, the

intent must be clear, otherwise, it will be interpreted to allow for an
additional venue.
2.2
The freedom of the parties to stipulate on the venue is however subject to

the usual rules on contract interpretation. Where the provision appears to
be one-sided as to amount to a contract of adhesion, the consent of the
parties thereto may well be vitiated and the venue stipulation will not be
given effect.177
2.3
The rule on venue is party oriented. It looks to the convenience of the

parties. Thus the rule on venue as to real actions presumes that the place
where the subject real property is located is convenient to the parties.
Hence, the rule as to venue can yield to an agreement as to exclusive
venue. Section 4, Rule 4 applies to both real and personal actions as long
as the requisites are met.
2.4
Venue as stipulated in the promissory note shall govern notwithstanding

the absence of a stipulation as to venue in an accompanying surety
agreement as the latter can only be enforced in conjunction with the
former.178
HOW VENUE IS QUESTIONED

1.
Venue may be questioned in (a) in a motion to dismiss 179, or (b) in an answer by
way of an affirmative defense180. If it is not questioned, it is deemed waived.
RULE 5 - UNIFORM PROCEDURE IN TRIAL COURTS
1.
The procedure in Municipal Trial Court shall be the same as in the Regional Trial
Court, except when (a) a provision applies only, expressly or impliedly, to a particular
court, or (b) In civil cases covered by the Rules on Summary Procedure
175
RA 8799, and A.M. 01-02-04-CS, March 13, 2001

177
Sweet Lines v Teves, 83 SCRA 361
178
Philippine Bank of Communications v Lim, 455 SCRA 714
179
Supra, Section 1 (c) ,Rule 16
180
176
2.
An example of a provision that applies only to a Municipal Trial Court is that
which refers to an appeal taken from an order of the lower court dismissing the case
without trial on the merits.181
PROCEDURE IN REGIONAL TRIAL COURTS

RULE 6- KINDS OF PLEADINGS
PLEADING DEFINED
1.
It is a written statement of the respective claims and defenses of the parties
submitted to the court for appropriate judgment. 182
1.1
Pleadings are necessary to secure the jurisdiction of the court so that the
subject matter can be presented for its consideration in the manner
sanctioned by the rules of procedure.
1.2
They are intended to secure a method by which the issues may be

properly laid before the court.183
1.3
They are designed to present, define and narrow the issues, to limit proof
to be submitted in the trial, to advise the court and the adverse property of
the issues and what are relied upon as causes of action or defenses.
2.
The pleadings that are allowed are: (a) Claims of a party are asserted in the
complaint, counterclaim, cross-claim, 3 rd party complaint (4th..), or complaint in
intervention (b) Defenses of a party are alleged in the answer to the pleading asserting
a claim against him (c) Reply to the answer 184
2.1
Under the Rules on Summary Procedure, the only pleadings allowed are
the complaint, compulsory counterclaim, cross claim pleaded in the
answer, and the answers thereto.
CONSTRUCTION OF PLEADINGS
1.
All pleadings are to be liberally construed so as to do substantial justice. 185
2.
While such is the rule, a party is strictly bound by the allegations, statements or
admissions made in his pleadings and cannot be permitted to take a contradictory
position.186
181

183
Santiago v. De Los Santos, 61 SCRA 146
184
185
Concrete Aggregates Corporation v. Court of Appeals, 266 SCRA 88
186
Santiago v. De Los Santos, 61 SCRA 146
182
2.1
In case there are ambiguities in pleadings, the same must be construed

most strongly against the pleader and that no presumptions in his favor
are to be indulged in. This rule proceeds from the theory that it is the
pleader who selects the language used and if his pleading is open to
different constructions, such ambiguities are at his peril.
SPECIFIC KINDS OF PLEADINGS

1.
Complaint- which is the pleading alleging the plaintiffs cause of action or causes
of action.
1.1
2.
The names/residences of the plaintiffs and defendants must be stated in

the complaint187
Answer- which is a pleading in which a defending party sets forth his defenses 188.
2.1
Its essential purpose is to secure joinder of the issues and not to lay down
evidentiary matter.189
2.2
The following are the kinds of defenses 190 that may be interposed in an
answer are:
2.3
187
(a)
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 made by191: (1) 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 (2)
Deny only a part of the averment by specifying
that so much of it is true and deny the remainder (3) 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.
(b)
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.
The purpose of requiring the defendant to make a specific denial is to

make him disclose the matters alleged in the complaint which he

189
Naga Development Corporation v Court of Appeals, 41 SCRA 105
190
191
188
succinctly intends to disprove at the trial, together with the matter which he
relied upon to support the denial.192
2.4
Note that the rule that a defending party who sets up an affirmative
defense hypothetically admits the allegations does not apply if the defense
set up is any of the grounds for extinguishment of the obligation. The
effect is that the defending party is deemed to have admitted the validity of
the obligation, and if the motion to dismiss is denied, what is left to be
proven is the fact of payment or non-payment.
2.5
Any of the grounds for a motion to dismiss may be pleaded as an

affirmative defense. He may then move for a preliminary hearing as if a
timely motion to dismiss has been filed.193
3.
Counterclaim- which is any claim which a defending party may have against an
opposing party.194
192
3.1
Counterclaims may be compulsory or permissive. They are distinguished

as follows:
a) In a compulsory counterclaim, it arises out of or is connected with
the transaction or occurrence constituting the subject matter of the
opposing partys claim, while in a permissive counterclaim, it does
not arise out of or is connected with the transaction or occurrence
constituting the subject matter of the opposing partys claim
b) A compulsory counterclaim is barred if not set up in the answer,
while a permissive counterclaim is not barred even if not set up
c) The plaintiff is not required to answer a compulsory counterclaim
and he cannot be in default, while a permissive counterclaim must
be answered after payment of docket fees, otherwise a party may
be held in default
d) A compulsory counterclaim is not an initiatory pleading so as to
require a certification as to non-forum shopping, while a permissive
counterclaim is an initiatory pleading.
3.2
The requisites of a compulsory counterclaim are:

a) It arises out of or is necessarily connected w/the transaction or
occurrence that in the subject matter of the partys claim
b) It does not require for adjudication the presence of 3 rd parties over
whom the court cannot acquire transaction
c) It must be cognizable by the regular courts of justice
d) It must be within the jurisdiction of the court both as to amount and
the nature thereof, except that in an original action before the RTC,
counterclaim is considered compulsory regardless of amount
Aquintey v. Tibong, GR No. 166704, December 20, 2006

194
193
e) It must already be existing at the time defending party files his

answer195
195
3.3
The requisites of a permissive counterclaim are:

a) It does not require for adjudication the presence of 3 rd parties over
whom the court cannot acquire jurisdiction
b) It must be cognizable by the regular courts of justice
c) It must be within the jurisdiction of the court both as to amount and
the nature thereof, except that in an original action before the RTC,
counterclaim is considered compulsory regardless of amount
3.4
To determine whether a counterclaim is compulsory or not, the Court has

devised the following tests: (a) are the issues of fact or law raised by the
claim and counterclaim largely the same? (b) Would res judicata bar a
subsequent suit on defendants claim absent a compulsory counterclaim?
(c) Will substantially the same evidence support or refute plaintiffs claim
as well as defendants counterclaim? And (d) is there any logical relation
between the claim and counterclaim. If the answers are all in the
alternative, it is a compulsory counterclaim. 196 Item (d) is also known as
the compelling test of compulsoriness as conducting separate trials of
the respective claims of the parties would entail a substantial duplication
of effort and time by the parties and the court. 197
3.5
Illustrations of compulsoriness are: (a) expenses for cultivation even if

inconsistent with the defense of ownership in an action to recover real
estate198 (b) expenses for the preservation of property in action for
annulment of title on the ground of fraud 199(c) damages for usurpation of
the produce in action to quiet title 200 (d) cost of improvements in an action
for recovery of ownership or possession201
3.6
A compulsory counterclaim that is not yet in existence at the time of the

filing of an answer may be presented or set-up by a supplemental
pleading before judgment.202
3.7
A compulsory counterclaim may implead persons not parties to the original

complaint as their presence is required for granting complete relief in the
determination of a counter-claim or cross claim, the court shall order them
brought in as defendants, if jurisdiction over them can be obtained. 203
Summons must thus be served upon them as they must answer the
Supra, Section 7, Rule 6, Section 8, Rule 11

Reyes De Leon v. Del Rosario, 435 SCRA 232
197
Quintanilla v. Court of Appeals, 279 SCRA 397
198
Camara v. Aguilar, 94 Phil 527
199
Maclan v. Garcia, 97 Phil 119
200
Doliente v. Blanco, 87 Phil 67
201
Baclayan v. Court of Appeals, 182 SCRA 761
202
Supra, Section 9, Rule 11, Intramuros Administration v Contacto, 402 SCRA 581
203
196
counterclaim as they cannot rely on the rule that the defendant in the
counterclaim is deemed to have adopted the allegations of the complaint
in his answer.204
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
counter-claim. 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
cross-claimant. 205
4.1
Note that counterclaims may be asserted against an original counterclaimant and that cross-claims may also be filed against an original crossclaimant.206
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 3 rd party defendant for contribution, indemnity,
subrogation or any other relief in respect of his opponents claim.207
204
6.1
Examples: (a) Contribution - A sues X for collection of money based on a

promissory note signed jointly and severally with Y. X may file a complaint
against Y for contribution (b) Indemnity- S, as surety, is sued for recovery
of the obligation of M. S may file a complaint against M for whatever
amount he may be adjudged to pay as surety (c) Subrogation- X, as
lessor, sues Y, as lessee for repairs. Y may file a complaint against his
sub-lessee who filed to comply with the obligation to repair (d) Other
Relief- X bought land from Y. Later X is sued by A for recovery of the land.
X may file a complaint against Y for his warranty against eviction.
6.2
An answer to a 3rd party complaint

may include (a) defenses,
counterclaims or cross-claims, including such defenses that the 3 rd Party
Plaintiff may have against the original plaintiffs claim, and (b) In proper
cases, he may assert a counter-claim against the original plaintiff in
Lafarge Cement Philippines, Inc. v Luzon Continental Land Corporation, 443 SCRA 522
206
207
205
respect to his claim against the 3rd party plaintiff.208 An example is: 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 the 3rd party defendant cannot file a counterclaim against the
original plaintiff as there is no privity of contract between them.
WHEN NEW PARTIES CAN BE BROUGHT
1.
If the presence of others besides the parties is required for the granting of full
relief in the determination of a counter-claim or cross- claim the court shall order them to
be brought in as defendants, if jurisdiction over them can be obtained 209.
RULE 7 PARTS OF A PLEADING
PARTS OF A PLEADING
1.
The parts of a pleading are Caption, Body, Signature, Address, Verification and
Certification against Forum Shopping.
SPECIFICS OF THE PARTS OF A PLEADING
1.
The Caption sets forth the (a) Name of the court (b) Title of the action, this
includes an indication of the name of the parties, who are required to be named in the
original complaint/petition. In subsequent pleadings, the name of the first party on each
side is sufficient with an appropriate indication when there are other parties. (c) Docket
Number , if one has already been assigned.210
1.1
In an appeal, the rules211 requires all names to be indicated in the Notice

of Appeal and Record on Appeal
1.2
In case of a variance between the caption and allegations, the latter will
prevail. The court may grant a relief warranted by the allegations and
proof even if no such relief is prayed for.212
2.
The Body sets forth its designation, the allegations or a partys claims / defenses,
the relief prayed for, and the date of the pleading.
2.1
208
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.

210
211
Supra, Sections 5 and 6, Rule 41
212
Lorbes v. Court of Appeals, 351 SCRA 716
209
2.2
Headings must be used when 2 or more causes of action are joined, the
statement of the first shall be prefaced by: First Cause of Action etc.
When: 2 or more paragraphs are addressed to one or several causes of
action in the complaint, they shall be prefaced by: Answer to the First
Cause of Action and so on. If it addresses several causes of action, the
paragraphs shall be prefaced accordingly.
2.3
Relief should be specified but it may add a general prayer for such further
or other relief as may be deemed just and equitable. The relief does not
constitute a part of the statement of the cause of action. It does not serve
to limit or narrow the issues presented. 213It is the material allegations, not
the legal conclusions that determine the relief that a party is entitled to. 214A
court may grant a relief not prayed for as long as warranted by the
allegations and the presented proof.
2.4
Every pleading is required to be dated.
3.
Signature and Address - every pleading must be signed by the party or counsel
representing him, stating in either case his address which should not be a post office
box.
213
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
Only the signature of either party operates to validly convert a pleading

from one that is unsigned to one that is signed. 215
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 the 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 it was due to inadvertence and not intended for delay.216
3.5
An address is required for service of pleadings or judgments
3.6
Disciplinary action may be imposed on counsel in relation to the rule when

(a) He deliberately files an unsigned pleading (b)
Signs a pleading in
UBS v. Court of Appeals, 332 SCRA 534

Banco Filipino Savings and Mortgage Bank v. Court of Appeals, 332 SCRA 241
215
Republic v. Kenrick Development Corporation, 351 SCRA 716
216
214
violation of the Rule (c) Alleges scandalous or indecent matter (d) Fails to
promptly report to the court a change in his address
4.
A 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..
217
4.1
The verification requirement is intended to secure an assurance that the

allegations in the pleading are true and correct and not the product of the
imagination or a matter of speculation and that it is being filed in good
faith.217
4.2
If a pleading that is required to be verified is not verified or contains a

verification that does not comply with what is required by the rules, it shall
be treated as an unsigned pleading.
4.3
The court may order the correction of the pleading or act on an unverified
pleading if the attending circumstances are such that strict compliance
would not fully serve substantial justice, which after all, is the basic aim of
the rules of procedure.218
4.4
A pleading need not be verified, except when otherwise specifically

required by law or the rules219.
4.5
A Verification is required under rules governing (a) cases covered by the

Rules on Summary Procedure (b) Petition for relief from judgment /
order220 (c) Petition for review221 (d) Appeal by certiorari222 (e)Petition for
annulment of judgment 223 (f) Injunction224 (g) Receivership225 (h) Support226
(i) 69) Certiorari, Prohibition or Mandamus 227 (j) Quo Warranto228 (k)
Expropriation229 (l) Forcible Entry / Detainer230 (m) Indirect Contempt 231(n)
Petition for a writ of habeas corpus, writ of amparo, writ of habeas data (o)
Petition for cancellation or correction of entries in the Civil Registry (p)
Petition for the constitution of a family home (q) Petition for Declaration of
Absolute Nullity of Marriage, Annulment of a Voidable Marriage, Legal
Sarmiento v. Zaratan, GR No. 167471, February 5, 2007

Robert Development Corporation v. Quitain, 315 SCRA 150
219
220
221
222
223
224
225
226
227
Supra, Sections 1,2,3, Rule 65
228
229
230
231
218
Separation (r) Petition for Guardianship (s) Applications for TRO or

Injunction.
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 sworn certification annexed thereto and simultaneously filed
therewith : (a) 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 (b) If there is such
other pending action or claim, a complete statement of the present status thereof (c)
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. 232
232
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.233
5.2
The non-compliance with any of the undertakings or the submission of a

false certificate shall constitute indirect contempt without prejudice to
corresponding administrative and criminal actions. Provided, that if the
acts of the party or counsel clearly constitute will and deliberate forum
shopping, it shall then be ground for summary dismissal with prejudice,
and shall constitute direct contempt as well as cause for administrative
sanctions.
5.3
Forum Shopping exists when as a result of an adverse opinion in one

forum, a party seeks a favorable opinion, other than by appeal or
certiorari, in another, or when he institutes two or more actions or
proceedings grounded on the same cause, on the gamble that one or the
other court would make a favorable disposition. The most important factor
in determining the existence of forum shopping is the vexation caused the
courts and parties-litigants by a party who asks different courts to rule on
the same or substantially the same reliefs. 234
5.4
It also occurs when a party attempts to have his action tried in a particular
court or jurisdiction where he feels he will receive the most favorable
judgment.
5.5
It has been said to exist also where the elements of litis pendentia are
present or where a final judgment in one case will amount to res judicata
in another. Hence, the following requisites concur: (a) identity of parties, or
at least such parties represent the same interests in both actions (b)
identity of rights asserted and relief prayed for, the relief being founded on

Castillo v Court of Appeals, 426 SCRA 369
234
Benguet Electric Cooperative, Inc. v Flores, 287 SCRA 449
233
the same facts, and (c) identity of the two preceding particulars is such
that any judgment rendered in the other action will, regardless, of which
party is successful, amount to res judicata in the action under
consideration. 235
235
5.6
The purpose of the certification against forum shopping is to prohibit and

penalize the evils of forum shopping. 236 Forum Shopping is a deplorable
practice because it results in unnecessarily clogging of the already heavily
burdened docket of the courts.237
5.7
The execution of the certification is required to be accomplished by the

petitioner himself as it is the petitioner himself who has actual knowledge
of whether or not he has initiated similar actions or proceedings in different
courts or agencies.
5.8
If there are several plaintiffs, the general rule is that all of them must sign
but it must be noted that there is jurisprudence to the effect that: (a) the
execution by one of the petitioners or plaintiffs in a case constitutes
substantial compliance where all the petitioners, being relatives and coowners of the properties in dispute, share a common interest in the
subject matter of the case.238 (b) the case is filed as a collective raising
only one cause of action or defense 239 (c) the signing by 1 spouse
substantially complies as they have a common interest in the property 240 or
is signed by husband alone is substantial compliance as subject of case is
recovery of conjugal property241 (d) 2 of the parties did not sign as they
were abroad. It was considered reasonable cause to exempt them from
compliance with the requirement that they personally execute the
certificate242
5.9
If the plaintiff or petitioner is a juridical person, it can only execute the

certification through properly delegated individuals. 243 Note though that
there are corporate officers who may sign the certification without need of
a board resolution, namely: (a) Chairperson of the Board (b) President (c)
General Manager or Acting General Manager (d) Personnel Officer, and
(e) Employment Specialist in a labor case. 244 The submission in the motion
TADI v Solilapsi, 394 SCRA 269

BA Savings Bank v Sia, 336 SCRA 484
237
Ruiz v Drilon, 209 SCRA 695
238
Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy v Guadalquiver, 429 SCRA 722
239
HCC Construction and Development Corporation v Emily Homes Subdivision Homeowners Association, 411
SCRA 504
240
Dar v Alonso Legasto, 339 SCRA 306
241
Docena v Lapesura, 355 SCRA 658
242
Hamilton v Levy, 344 SCRA 821
243
National Steel Corporation v. Court of Appeals, 388 SCRA 85
244
Cagayan Valley Drug Corporation vs. Commissioner of Internal Revenue, 545 SCRA 10
236
for reconsideration of the authority to sign the verification and certification

constitutes substantial compliance with procedural requirements. 245
5.10
Counsel has been allowed to sign the certification in the following

instances: (a) Where the counsel is the Solicitor General has been
deemed to be substantial compliance246 (b) Certification by acting regional
counsel of NPC was accepted because it was his basic function to
prepare pleadings and to represent NPC Mindanao as such he was in
the best position to know and certify if a similar action was pleading or had
been filed247 (c) Certification was signed by counsel. The procedural lapse
may be overlooked in the interest of substantial justice. 248 (d) Certification
was executed by an in house counsel is sufficient compliance with the
Rules249 (e) With respect to a corporation, the certification against forum
shopping may be signed for and its behalf by a specifically authorized lawyer who
has personal knowledge of the facts required to be disclosed in such document.250
5.11
The Supreme Court has gone to the extent of invoking the power to
suspend the rules by disregarding the absence of the certification in the
interest of substantial justice.251
5.12
As a general rule, the certification cannot be filed at a later date. However,

in some instances the Supreme Court has allowed the late filing when
special or compelling reasons justify the same, such a the substantive
merit of the case.252
5.13
Problem: The rule in Section 1, Rule 17 is that the plaintiff may dismiss his
complaint by filing a notice of dismissal at any time before service of the
answer or of a motion for summary judgment. As a general rule, such
dismissal is without prejudice. Suppose P filed a complaint against D, and
before service of the answer or of motion for summary judgment, P
caused the dismissal of his complaint by filing a notice of dismissal.
Months later, P filed the same complaint against D. In the certification on
non-forum shopping appended to the second complaint, P failed to
mention about the prior filing and dismissal of the first case. Is Ps failure
to mention about the prior filing and dismissal of the first case fatal?
No. An omission in the certification on non-forum shopping about any
event or case which would not constitute res judicata or litis pendentia is
245
Asean Pacific Planners vs. City of Urdaneta, 566 SCRA 219

Commissioner of Internal Revenue v SC Johnson, 309 SCRA 87
247
Robern Development Corporation v Quitain, 315 SCRA 150
248
Sy Chin v Court of Appeals, 345 SCRA 673
249
Mercury Drug Corporation v Libunao, 434 SCRA 404
250
Athena Computers, Inc. v Reyes, 532 SCRA 343 (September 5, 2007)
251
De Guia v. De Guia, 356 SCRA 287
252
Loyola v. Court of Appeals, 245 SCRA 477, Roadway Express v. Court of Appeals, 264 SCRA 696, Sy v.
Landbank, 336 SCRA 419, Shipside Incorporated v. Court of Appeals,352 SCRA 334, Ateneo De Naga v. Manalo,
458 SCRA 325
246
not fatal. In the problem presented, the dismissal of the first case would
not constitute res judicat253a precisely because such dismissal is without
prejudice to the refilling of the case.254
5.14
Also, a case pending before the Ombudsman cannot be considered for

purposes of determining forum shopping as the power of the Ombudsman
is only investigative in character and its resolution cannot constitute a valid
and final judgment because its duty is to file the appropriate case before
the Sandiganbayan.
DISTINGUISH BETWEEN VERIFICATION / CERTIFICATION

1.
The distinctions are:

a) A verification is a sworn statement that the allegations are true and correct
based on personal knowledge and/or authentic records, while a
certification states that no action or claim involving the same issues have
been filed or is pending
b) A verification is required in complaints, initiatory pleadings and some
responsive pleadings, while a certification is required only in complaints
and initiatory pleadings
c) A defect in a verification is curable by amendment or an order to verify,
while that in a certification cannot be cured by amendment
d) A defect in the verification does not immediately give rise to a ground for
dismissal, while a defect in a certification gives rise to a ground for
dismissal
e) A verification may be signed by counsel, while a certification must be
signed by a party.
RULE 8 MANNER OF MAKING ALLEGATIONS IN PLEADINGS

HOW ALLEGATIONS ARE MADE IN A PLEADING
1.
In general, a pleading must contain in a methodical and logical form a plain
concise and direct statement of the ultimate facts on which the party pleading relies for
his claim or defense255
1.1
253
Ultimate facts are the essential facts constituting the plaintiffs cause of
action. A fact is essential if it cannot be stricken out without leaving the
statement of the cause of action insufficient.
Sevilleja v. Laggui, 362 SCRA 715

Roxas v. Court of Appeals,363 SCRA 207
255
254
1.2
Examples of ultimate facts: (a) That an obligation has been constituted,

that party must comply, that there is no compliance (b) That party is the
owner of property, that he has a right to its use/possession, that he has
been dispossessed
1.3
A pleading must only aver ultimate facts as no conclusions are supposed

to be averred. Conclusions are for the court to make.
2.
Mere evidentiary facts or those that are necessary for the determination of the
ultimate facts are to be omitted. Evidentiary facts are the premises upon which
conclusions of ultimate facts are based.
2.1
Examples of evidentiary facts are: (a) That the obligation as covered by a

promissory note was executed before specified persons or that defendant
has several letters indicating intention to/or not to pay (b) How property
was acquired
2.2
They are not supposed to be averred as evidentiary matters must be

presented to the court during the trial of the case, not in the pleadings.
3.
Laws may be pleaded only if the pleading is an Answer.
PLEADING ALTERNATIVE CAUSES OF ACTION OR DEFENSES

1.
A party may set forth two or more statements of a claim or a defense alternatively
or hypothetically, either in one cause of action or defense or in separate causes of
actions or defenses. If two or more statements are made in the alternative and if one of
them if made independently would be sufficient, the pleading is not made insufficient by
the insufficiency of one or more of the alternative statements. 256
2.
The provision recognizes the possibility that the liability of the defendant may
possibly be based on two causes of action or that the defendant may possibly have
alternative defenses, even if they may conflict with each other.
2.1
Examples of alternative causes of actions: (a) allegations for breach of

contract of carriage and tort, or (b) allegations for breach of contract and
fraud, while examples of alternative defenses are: (a) defense of failure to
repurchase by plaintiff and that property was inherited, or (b) debt has
been paid or that it has prescribed, or (c) fraud attended the execution of
the contract, but even assuming that the contract is valid, the action has
prescribed.
3.
The object of the 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.
256
Hence, a party may state as many claims/defenses as he has regardless of

inconsistency.
3.1
It does not require that all the alternative causes of action/defenses be

sufficient for the plaintiff/defendant to be entitled to relief. It is enough that
one of them if made independently would be sufficient to support a cause
of action or defend against it. Hence, the pleading is not made insufficient
by the insufficiency of one or more of the alternative statements.
3.2
Overruling of one does not bar other defenses. However, if not set up,
determination of one shall bar the determination of the other.
HOW TO PLEAD CONDITIONS PRECEDENT

1.
A condition precedent as determined by common usage are matters which must
be complied with before a cause of action of action arises.
2.
Hence, a general averment of the performance or occurrence of all conditions
precedent is required.257
3.
Examples of conditions precedent are: (a) tender of payment is required before
consignation258 (b) exhaustion of administrative remedies before resort to judicial action
(c) that earnest efforts at a compromise have been exerted, the suit being one between
members of the same family (d) that prior resort to conciliation has been undertaken to
no avail
4.
The failure to comply is an independent ground for a motion to dismiss. 259
PLEADING CAPACITY TO SUE AND TO BE SUED

1.
The following must be averred: (1) capacity to sue or be sued (2) authority of a
party to sue or be sued in a representative capacity (3) legal existence of an organized
association of persons that is made a party.260
1.1
257
Note the cross reference to Sections 1 and 3, Rule 3 referring to who may
be parties and representative parties, and to Section 1(d), Rule 16
referring to a motion to dismiss on the ground of lack of legal capacity to
sue, meaning that a party is not in possession of his civil rights, does not
have the qualification to appear, or does not have the character or
representation claimed.

Article 1256, NCC
259
Supra, Section 1(j), Rule 16
260
258
2.
A party desiring to raise the issue of lack of legal capacity shall do so by specific
denial, which shall include such supporting particulars as peculiarly within the pleaders
knowledge.
HOW TO AVER FRAUD, MISTAKE, AND CONDITION OF MIND

1.
Fraud and mistake must be stated with particularity. It is not enough for the
pleading to just allege fraud.
1.1
It must state the time, place and specific acts constituting the fraud.
2.
Condition of mind, such as malice, intent, knowledge may be averred
generally.261
2.1
Based on human experience, it is difficult to state the particulars of a

condition of the mind.
HOW TO AVER/ PLEAD A JUDGMENT/DECISION OF A DOMESTIC/FOREIGN

COURT, JUDICIAL/QUASI-JUDICIAL OFFICER TRIBUNAL BOARD
1.
It is sufficient that a general allegation of the existence of the judgment is made,
without setting forth matter showing jurisdiction to render it. 262
1.1
Jurisdiction in this case is presumed.
IF ACTION/DEFENSE IS BASED ON AN ACTIONABLE DOCUMENT

1.
Where the action or defense is based on an actionable document or the written
document upon which the plaintiff or defendant relies for his claim or defense, it is
pleaded by (a) setting forth the substance of such document in the pleading and
attaching the original/copy as an annex or (b) setting it forth verbatim in the pleading. 263
2.
It is contested by specifically denying it under oath and setting forth what he
claims to be the fact.
261
2.1
A mere denial is insufficient as the same must be under oath or verified.
2.2
The requirement does not apply if: (a) adverse party is not/does not
appear to be a party to the actionable document. Example: Heirs are sued
on a document executed by a person they will inherit from (b) when
compliance with an order for an inspection of the original document is

263
262
refused.264 (c) when the document is not an actionable document but is

merely evidence of the claim or existence of the actionable document .
Example: demand letters (d) when the party who has the benefit of an
implied admission waives the benefit. Example: he presents evidence as
to genuineness and due execution
3.
The effect of not specifically denying an actionable document under oath lead to
the admission of its genuineness and due execution. It thus means that the party
executed the document or was executed by someone authorized by him, it was in the
words/figures set forth in the pleading, and that the formal requirements of law have
been observed. Thus, there is no need to present it formally in evidence because it is an
admitted fact.
3.1
A party though is not barred from interposing other defenses as long as it

is not inconsistent with the implied admission. Examples of inconsistent
defenses are: forgery, lack of authority to execute the document that it was
signed in another capacity, it was not delivered or the words/figures as
pleaded are not the same as when the document was signed. On the
other hand, consistent defenses are: fraud, payment, want or illegality of
consideration, usury, prescription, release or waiver or estoppel.
HOW ARE OFFICIAL ACT/DOCUMENTS AVERRED

1.
It is sufficient to aver that document was issued or the act is done in compliance
with law.265 Example: Issuance of Certification to file action by Lupon Tagapayapa chair.
HOW ARE SPECIFIC DENIALS MADE
1.
A specific denial is made266 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, this is known as an absolute denial (b)Deny only a part
of the averment by specifying that so much of it is true and deny the remainder, this is
known as partial denial (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, this is known as denial by disavowal of knowledge.
A negative pregnant denial is a denial pregnant with an admission of the substantial facts alleged
in the pleading.267
1.1
264
If the denial is a mere repetition of the allegations in the complaint it is

considered a negative pregnant denial which is conceded to actually be an
admission. Example: A complaint alleges: Plaintiff extended a loan to

266
267
Caneland Sugar Corporation v. Alon, 533 SCRA 28, (September 12, 2007)
265
Defendant in the amount of P500, 000.00 on July 27, 2006 in Baguio City.
The defendant in his answer alleges: Defendant specifically denies that
Plaintiff extended a loan to Defendant in the amount of P500, 000.00 on
July 27, 2006. The answer is a mere repetition of the allegations made in
the complaint. The answer is vague as to what it really denies. Is it the
existence of a loan that is denied? Is it the amount? The date? The
place?
1.2
When the complaint alleges that: the sum of PHP 10,000.00 is a

reasonable sum to be allowed plaintiff as and for attorneys fees. If the
defendants denial is a mere repetition, then it is an admission that any
sum less than PHP 10,000.00 is reasonable.
1.3
If allegations are not denied in the prescribed manner, a party is deemed

to have made a general denial which is tantamount to an admission.268
1.4
A denial by disavowal of knowledge will amount to an admission, if to the

knowledge of the court; it is so plainly and necessarily within the
defendants knowledge that the averment of ignorance must be untrue.
1.5
Exceptions to the rule that matters are admitted by the failure to make a
specific denial are: (a) the amount of unliquidated damages 269 (b)
conclusions which are not required to be denied as only ultimate facts
must be alleged, and (c) non-material allegations as only those that are
material have to be denied.
1.6
Note that when the allegations pertain to (a) allegations of usury in a

complaint to recover usurious interest, or (b) genuineness and due
execution of an actionable document, the specific denial is required to be
made under oath otherwise they are admitted.
STRIKING OUT OF A PLEADING OR MATTER CONTAINED THEREIN

1.
If the pleading or any matter therein is sham, false, redundant, immaterial,
impetinent or scandalous, the court can order the pleading or matter contained therein
to be stricken therefrom (a) upon motion made by a party before responding to a
pleading (b) if no responsive pleading is allowed / permitted by the Rules, upon motion
by a party within 20 days after service of the pleading, or (c) upon the Courts own
initiative270
RULE 9 EFFECTS OF FAILURE TO PLEAD
1.
The general effect of the failure to plead is that the defenses / objections not so
pleaded in an Answer or a Motion to Dismiss are deemed waived.
268

270
269
1.1
However, if it appears from the pleadings or evidence on record that (a)

the Court has no jurisdiction over the subject matter (b) there is another
action pending between the same parties for the same cause, or (c) the
action is barred by prior judgment or statute of limitations, the court shall
dismiss the claim.271 These defenses are not barred if not set up
2.
A compulsory counterclaim or a cross-claim not set up shall also be barred. 272
Note that this is in consonance with the requirement of the Rules that a compulsory
counterclaim or cross claim existing at the time of the filing of the answer must be
contained therein273 but if it arises after the filing of an answer, it may be set up in a
supplemental pleading before judgment 274 or if failure is due to oversight, inadvertence,
excusable neglect or when justice requires, it may be set up by amendment with leave
of court before judgment.275
WHAT RESULTS IF DEFENDANT / DEFENDING PARTY FAILS TO ANSWER WITHIN
THE TIME ALLOWED
1.
If there is failure to plead within the time allowed, the defendant may be declared
in default upon compliance with the following: (a) the plaintiff must file a motion to
declare the defendant in default (b) serve notice of his motion to defendant, which must
include a notice of hearing (c) at the hearing, show proof of failure on the part of the
defendant to file his answer within the reglementary period. 276
1.1
A court cannot motu propio declare a defendant in default.
2.
Default is a procedural concept that occurs when the defending party fails to file
his answer within the reglementary period.
271
2.1
It does not occur from the failure of the defendant to attend the pre-trial,
where absence is a cause for the court to order presentation of evidence
ex-parte or at the trial, where absence will be construed as a waiver to
assail the evidence against him or is a waiver of the right to adduce
evidence.
2.2
Note the exceptions to the concept that default is triggered by the failure of
the defending party to file the required answer, as a default judgment has
been held to lie if (a) a party refuses to obey an order requiring him to
comply with the various modes of discovery 277, or (b) if a party or

273
274
275
276
277
Supra, Section 3 (c), Rule 29
272
managing agent of a party willfully fails to appear before the officer who is
to take his deposition.278
3.
It is an error to declare a defendant in default where an answer has already been
filed.279
4.
Note that the rule is different if covered by the Rules on Summary Procedure,
where a motion to declare defendant in default is prohibited. 280
4.1
Instead, the court can motu proprio or upon a motion render judgment as
may be warranted by the facts alleged in the complaint and limited to what
is prayed for.281
5.
A declaration in default is not an admission of the truth or the validity of the
plaintiffs claims.282
ONCE DECLARED IN DEFAULT
1.
The court has two options, it: (a) can proceed to render judgment granting the
claimant such relief as his pleading may warrant, unless, (b) the Court in its discretion
requires the claimant to submit the evidence. Such reception may be delegated to the
Clerk of Court, who must be a member of the Bar.
2.
The extent of the relief that may be awarded shall not exceed the amount or be
different in kind from that prayed for nor award unliquidated damages.283
2.1
Hence, even if there is proof to indicate a greater relief, the court will
refrain from awarding it.
3.
The defaulted defendant is nevertheless entitled to notice of subsequent
proceedings but he cannot take part in the trial. 284
4.
Effect of 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 cause against all upon the answers thus filed and render
judgment upon the evidence presented.285
4.1
278
It is not within the authority of the court to divide a case by first hearing the
case ex parte as against the defaulted defendants and render a judgment

Cathay Pacific Airways v. Romillo, Jr., 141 SCRA 451
280
Section 19 (h), 1991 Rules of Summary Procedure
281
Section 6, II, 1991 Rules of Summary Procedure
282
Monarch Insurance v. Court of Appeals, 333 SCRA 7
283
Supra, Section 3 (d), Rule 9, Vlason v. Court of Appeals, 310 SCRA 26
284
Supra, Section 3 (a), Rule 9
285
279
against them, then proceed to hear the case as against the non-defaulted
defendants.286
WHAT ARE THE REMEDIES OF A DEFAULTED DEFENDANT
1.
The available remedies of a defendant who is declared in default are as follows:

1.1
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 stating that failure to file an answer was due to
FAME and that he has a meritorious defense
1.2
Motion for New Trial on the ground of FAME if the trial court has rendered
judgment but it has not yet become final
1.3
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
of a motion to set aside or for a new trial does not bar an appeal.
On appeal, the judgment may be assailed on the ground that the judgment
is excessive or is different in kind from that prayed for or that the plaintiff
failed to prove his material allegations or that the decision is contrary to
law. However, he is prohibited from seeking a reversal or modification on
the basis of evidence submitted before the appellate court, as to allow it
would mean that he is retaining the right to adduce evidence, which he
lost in the trial court.287
286
1.4
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.288
1.5
Action to Annul Judgment based on extrinsic or collateral fraud , which is

such that a party is induced or prevented from presenting his case or
having a full and fair trial, within 4 years from discovery of the fraud.
1.6
Certiorari, if improperly declared in default or motion to set aside was

denied and is tainted with grave abuse of discretion, which is filed within
60 days from notice or judgment order resolution or 60 days from notice of
the denial of a motion for reconsideration. 289
Heirs of Mamerto Manguiat, et al. v. Court of Appeals, G.R. No. 150768, August 20, 2008
Rural Bank of Sta. Catalina, Inc. vs. Land Bank of the Philippines, G.R. No. 148019, July 28, 2004
288
Supra, Rule 38
289
Supra, Rule 65
287
2.
If despite a declaration in default, the court subsequently acts on motions for
extension or a motion for a bill of particulars, the effect is that the order of default is
deemed lifted. The trial court is not considered to have acted with grave abuse of
discretion.290
CASES WHERE NO DEFAULT LIES
1.
In the following cases, default does not lie: (a) annulment of marriage (b)
declaration of nullity of marriage (c) legal separation (d) expropriation, and (e) forcible
entry, illegal detainer and the other actions covered by the Rules on Summary
Procedure.
1.1
Regarding items (a) to (c), the court shall order the prosecuting attorney to
investigate whether or not collusion exists, and if there is no collusion, to
intervene for the state in order to see that the evidence so presented is not
fabricated.291
RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS

WHAT ARE AMENDMENTS
1.
Amendments consist of: (a ) Adding or striking out an allegation or the name of
any party (b) Corrections of mistakes in the name of a party or mistaken or inadequate
allegation or description in any other respect.
1.1
2.
The purpose for allowing amendments is so that the actual merits of the
controversy may speedily be determined without regard to technicalities
and in the most expeditious and inexpensive manner. 292
The kinds of amendments are:

2.1
Formal Amendments which are defects in the designation of the parties,

other clerical or typographical errors that may summarily be corrected
provided no prejudice is caused the adverse party and are allowed at any
stage, at the Courts own initiative or on motion.293
2.2
All other amendments are considered Substantial Amendments
WHEN AMENDMENTS CAN BE MADE
290
Republic of the Philippines vs. Sandiganbayan, G.R. No. 148154, December 17, 2007
Supra, Section 3,(e), Rule 9
292
293
291
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.294
1.1
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.295
1.2
Note that the filing of a motion to dismiss does not bar an amendment as it
is not a responsive pleading and does not preclude the right to the plaintiff
to amend his complaint.296
1.3
In fact, even if the motion to dismiss has been granted, the plaintiff can still
amend his complaint before the dismissal becomes final as long as no
answer has of yet been served and the order dismissing the complaint has
not yet become final. 297
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. 298
294
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/defenses 299 and that all such causes or
defenses must be pleaded in accordance with the rule on waiver.300
2.2
The Trial Court may refuse leave or amendments when: (a) A responsive
pleading has been filed and the motion for leave to amend is made with
intent to delay (b) The purpose is to confer jurisdiction as the court must
first acquire jurisdiction before it can act. 301 Note the instance when the
amendment is made as a matter of right (c) The purpose is to cure the
defect of a non-existent cause of action. Example: An amendment of the
complaint to correct its having been filed prematurely or when the
obligation was not yet due.
2.3
If no leave is obtained, the pleading has no standing and may be stricken

from the records

Remington Industrial Sales Corporation v Court of Appeals, 382 SCRA 499
296
Remington Industrial Sales v. Court of Appeals, 382 SCRA 499
297
Bautista v. Maya-Maya Cottages, Inc., 476 SCRA 416
298
299
300
301
Tirona v Alejo, 367 SCRA 17, Gaspar v Dorado, 15 SCRA 331
295
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. 302
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
pleadings303, 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 the 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.304
3.1
Thus, the failure of a complaint to state a cause of action may be cured by

(a) Presentation of evidence to prove that cause of action followed by an
amendment to conform to evidence, or (b) 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.
THE EFFECTS OF AN AMENDED PLEADING

1.
It supersedes the pleading that it amends
2.
Admissions in the superseded pleading may be received in evidence against the
pleader because it is not expunged from the records and admissions in the superseded
pleading are in the nature of judicial admissions made by a party in the course of the
proceedings which do not require proof and ordinarily cannot be contradicted except by
showing that it was made through palpable mistake or that no such admission was
made.305
3.
Claims or defenses alleged in the superseded pleading but not incorporated in
the amended pleading shall be deemed waived. 306
HOW IS AN AMENDED PLEADING FILED
1.
A new copy of the entire pleading incorporating the amendments which shall be
indicated by appropriate marks shall be filed.307
302
Siasoco v Court of Appeals, 303 SCRA 186

Bernardo v Court of Appeals, 263 SCRA 660
304
305
306
307
303
1.1
Note that the date of filing of amended pleadings does not retroact to the
date of the filing of the original pleading. Hence, the statute of limitations
runs until the filing of the amendment, but, an amendment that merely
supplements and amplifies facts originally alleged in the complaint relates
back to the date of the commencement of the action and is not barred by
the statute of limitations that expired after service of the original complaint.
Example: The statement of a cause of action is imperfect and is corrected
by an amended complaint, the plea of prescription relates to the time of
filing but the rule will not apply if a new defendant is impleaded in the
amended complaint and prior to its filing prescription has set in.
WHAT IS A SUPPLEMENTAL PLEADING

1.
A supplemental pleading setting forth transactions, occurrences or events which
have happened since the date of the pleading sought to be supplemented Example:
Setting up counterclaims after an answer has been filed. 308
2.
A supplemental pleading is always upon motion, and on such terms as are just
and upon reasonable notice and the adverse party is given 10 days from notice of order
admitting the supplemental pleading to plead thereto.309
3.
A supplemental pleading is meant to supply deficiencies in aid of an original
pleading, not to entirely substitute the latter.310 Thus, when the cause of action stated in
the supplemental complaint is different from the cause of action mentioned in the
original complaint, the court should not admit the supplemental complaint. 311
DISTINCTIONS BETWEEN AN AMENDED PLEADING AND A SUPPLEMENTAL
PLEADING
The distinctions are:
a) An amended pleading is filed either as a matter of right or with leave, a
supplemental pleading is always with leave
b) An amended pleading alleges matters occurring before the filing of the original
pleading, while a supplemental pleading alleges matters occurring after the filing
of the original pleading
c) An amended pleading supersedes the original pleading, while a supplemental
pleading allows the original pleading to stand.
308
Supra, Section 9, Rule 11 and Section 2, Rule 9

310
Shoemart, Incorporated v Court of Appeals, 190 SCRA 189
311
APT v Court of Appeals, 324 SCRA 533
309
RULE 11: WHEN RESPONSIVE PLEADINGS ARE TO BE FILED

RESPONSIVE PLEADING DEFINED
1.
A responsive pleading is one which seeks affirmative relief and/or set up
defenses.312
2.
However, a motion to dismiss is not considered a responsive pleading.
ANSWER TO THE COMPLAINT

1.
Within 15 days after service of summons unless a different period is fixed by the
Court.313
1.1
2.
The same period applies to third party complaints. 314
If covered by the Rules on Summary Procedure, it is 10 days
3.
If the complaint is amended: (a) as a matter of right, within 15 days from being
served with a copy (b) if with leave of court, within 10 days from notice of order
admitting the same. If no new answer is filed, a previously filed answer may serve as
the answer. The same period holds for answers to amended counter-claims, cross
claims, third party complaints and complaints in intervention.315
4.
If defendant is a foreign private juridical entity, within 15 days if service of
summons is made on the resident agent or within 30 days from receipt of summons by
the entity at its home office if received by the government office designated by law. 316
5.
If it is a complaint in - intervention, within 15 days from notice of the order
admitting the complaint in intervention
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. 317
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
312
Marcos-Araneta vs. Court of Appeals, 563 SCRA 41

314
315
316
Supra, Section 2, Rule 11, Section 128, Corporation Code
317
313
8.
If it involves corporate election contests or inspection of corporate books and
records disputes, within 10 days from service of summons and the complaint. 318
ANSWER TO A CROSS CLAIM OR COUNTER CLAIM
1.
The answer to a cross claim or a counter-claim shall be filed within 10 days from
service.319
2.
Note that compulsory counterclaims need not be answered unless it raises
issues not covered by the complaint.
2.1
It is required that a compulsory counterclaim or a cross claim existing at

the filing of defendants answer must be included therein but, if it matures /
or is acquired after serving of answer, it may with the courts permission
be presented as such in a supplemental pleading. If already existing and
not set up through oversight, inadvertence, or excusable neglect, it may,
by leave of court be set up as such by amendment before judgment. 320
REPLY
1.
It must be filed within 10 days from service of the pleading responded to. 321
2.
Note though that the filing of a reply is optional as if one is not filed, all new
matters are deemed controverted.322
3.
The exceptions are pleaded actionable documents and allegations as to usury.
MAY THE TIME TO PLEAD BE EXTENDED

1.
Upon motion and on terms as may be just, the Court it may extend or allow it to
be filed after the time fixed by the Rules. 323 The court may also, upon like terms, allow
an answer or other pleading to be filed after the time fixed by these Rules.
2.
In cases covered by the Rules on Summary Procedure, the period cannot be
extended nor shortened.
3.
318
In quo warranto cases, the period may be shortened. 324
Section 5, Rule 6 and Section 4, Rules 7, A.M. 01-2-04, SC

320
Supra, Sections 8,9, and 10, Rule 11
321
322
323
324
319
4.
A lawyer shall not, after obtaining extensions of time to file pleadings,
memoranda, or briefs, let the period lapse without submitting the same or offering an
explanation for failure to do so.325
WHEN A COMPLAINT SHOULD BE FILED
1.
A complaint is not a responsive pleading. It is to be filed upon accrual of the
cause of action or any time thereafter but before it is barred by prescription.
RULE 12 BILL OF PARTICULARS
BILL OF PARTICULARS DEFINED
1.
It is a definitive statement of any matter which is not covered with sufficient
definiteness or particularity to enable him to properly prepare his responsive pleading. 326
2.
The purpose of which is to make more particular or definite the ultimate facts in a
pleading and is not intended to supply evidentiary matters.
3.
It is to be resorted to when the complaint is deficient in details with respect to the
factual basis of each and every item claimed, but such deficiency is not such as to
amount to a failure to state a cause of action as the remedy then is to file a motion to
dismiss.327
WHEN SHOULD IT BE FILED
1.
Before filing or responding to a pleading or before filing an answer.
2.
If pleading is a reply, within 10 days from service thereof
ACTION OF THE COURT

1.
Upon filing of the motion that points out the defects complained of, the
paragraphs wherein they are contained, and the details desired.
1.1
It is a litigated motion, thus requires a notice of hearing.
2.
The clerk of court must immediately bring it to the attention of the court, which
may deny or grant the motion outright or allow the parties an opportunity to be heard. 328
2.2
325
If granted, whether in whole or in part, the compliance therewith must be

effected within 10 days from notice of order, unless a different period is
fixed by the Court.
Rabanal v Tugade, 383 SCRA 484

327
Sabangan v Manila Railroad Company, 28 SCRA 772
328
326
3.
In compliance, the bill of particulars may be filed either in a separate or in an
amended pleading, serving a copy on the adverse party.329
3.1
Once filed, it becomes part of the pleading for which it is intended. 330
EFFECT OF NON - COMPLIANCE WITH ORDER

1.
In case of failure to obey or insufficient compliance, the Court may order the
pleading or portions thereof to which the order was directed to be stricken out or make
such order as it deems just. 331 Hence, it may also dismiss for failure of the plaintiff to
obey order of the Court.332
2.
The striking out of a complaint by the lower court upon motion of the defendant
for failure of the plaintiff to comply with an order requiring him to submit a bill of
particulars as a ground for dismissal is equivalent to an adjudication on the merits
unless otherwise provided by the court. 333
WHEN MUST A RESPONSE / ANSWER BE FILED
1.
After service of a bill / definitive pleading or notice of denial of the motion for a bill
of particulars, the moving party has the remaining period that he was entitled to at the
time of the filing of the motion, which shall not be less then 5 days in any event. 334
RULE 13 FILING / SERVICE OF PLEADINGS JUDGMENTS / OTHER PAPERS
1.
The Rule applies to all pleadings / papers as well as service thereof, except
those for which a different mode of service is prescribed. 335
FILING / SERVICE DEFINED
1.
Filing is the act of presenting the pleading or other paper to the clerk of court.
2.
Service is the act of providing a party with a copy of the pleading / paper.
2.1
329
If a party is represented by counsel, service is made upon counsel or one

of them unless service is ordered to be made upon the party by the Court.
If there is one counsel for several parties, he is entitled to only one copy
served by the opposite side. 336

331
332
333
Vda. De Quillosa v Salazar, 14 SCRA 656
334
335
336
330
2.2
Service may also be made on a party with counsel: (a) if counsel cannot
be located or changed his given address (b) when his deposition is to be
taken, or is required to answer a written interrogatory or when a request
for admission is made, and (c) if party is ordered to show cause why he
should be punished for contempt
MODES OF FILING
1.
The modes of filing are (a) Presenting the original copies of pleadings,
appearances, motions, notices, orders, judgments and all other papers to the clerk of
court, or (b) By registered mail.337
1.1
The clerk of court shall if filing be personal, endorse on the pleading, the
date and the hour of filing.
1.2
If it by mail, the date appearing on the post office stamp / registry receipt
shall be date of the filing / deposit of court. The envelope shall be attached
to the record. It bears stressing that it is the date of mailing, not the date of
receipt of the mail matter, which shall be considered as the date of filing. 338
This has been the practice since mail is considered an agent of the
Government.339This is also known as the Mailbox Rule.
2.
The papers that are to be filed or served upon affected parties are judgments,
resolutions, order, pleadings subsequent to the complaint, written motions, notices,
appearances, remand, offer of judgment or similar papers. 340
WHAT ARE THE MODES OF SERVICE
1.
The general rule is that pleadings, motions, notices, orders, judgments and other
papers shall be served personally or by mail.341
2.
If personally served, it may done: (a) by delivering personally a copy to party or
his counsel, or (b) leaving it in his office with a clerk or person having charge thereof, or
(3) if no person is found in the office or he has no office, by leaving a copy between the
hours of 8am to 6pm at partys / counsels residence, if known, with a person of
sufficient age and discretion residing therein.342
3.
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
337

Ansel v Aledo, 420 SCRA 645
339
Supra, Mintu v Court of Appeals, 53 SCRA 114
340
341
342
338
residence, if known, postage prepaid and with instructions to the postmaster to return
the mail to sender after 10 days if undelivered.
3.1
If no registry service is available in the locality of the addressee or sender,

service may be by ordinary mail.343
4.
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.344
5.
It is required that judgments, final orders or resolutions shall be served personally
or by registered mail.
5.1
If a party is summoned by publication, and he has failed to appear,

judgments, final orders / resolutions shall also be served upon him by
publication at the expense of the prevailing party.345
6.
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.346
WHEN SERVICE IS COMPLETE
1.
Service will be deemed complete: (a) Upon actual delivery if undertaken
personally (b) Upon expiration of 10 days after mailing, unless the Court orders
otherwise if undertaken by ordinary mail (c) Upon actual receipt by addressee or after 5
days from the date he received the 1 st notice of the postmaster, whichever date is
earlier, if undertaken by registered mail347 (d) At the time of delivery to the clerk of court,
if undertaken by substituted service
WHAT IS THE RULE ON PRIORITY OF SERVICE
1.
Whenever practicable, service and filing of pleadings and other papers shall be
done personally except, with papers emanating from the court. A resort to other modes
must be accompanied by an explanation why service or filing was not done personally.
If not, it may be cause to consider the paper as not filed. 348
1.1
343
Where the address of the respondents counsel is 83 kilometers away

from the address of petitioners counsel, such distance makes personal

Industrial Timber Corporation v NLRC, 233 SCRA 597, Beneco v NLRC, 209 SCRA 55
345
346
347
348
344
service impracticable, and a written explanation why service was not done
personally might have been superfluous. Liberal construction has been
allowed in cases where the injustice to the adverse party is not
commensurate with the degree of thoughtlessness in not complying with
the procedure prescribed.349
WHAT CONSTITUTES PROOF OF FILING
1.
Proof of filing is shown by: (a) existence of the pleading or other paper in the
records of the case (b) If not in the record, but is claimed to be: (1) filed personally by
the written / stamped acknowledgment of its filing by the Clerk of Court on a copy, and
(2) filed by registered mail by the registry receipt and the affidavit of the person who did
the mailing containing a full statement of: (a) Date and place of depositing in the post
office in a sealed envelope addressed to the Court, with postage prepaid, and (b)
Instructions are given to the postmaster to return the mail to sender after 10 days, if
undelivered.350
WHAT CONSTITUTES PROOF OF SERVICE
1.
Proof of service is shown by: (a) Written admission of the party served or official
return of the server, or affidavit of the party serving, containing a full statement of the
date, place, manner of service if served personally (b) An affidavit of the person mailing
of facts showing compliance with Section 7 of the Rule if served by ordinary mail (c) An
affidavit and registry receipt issued by the mailing office. The registry return card shall
be filed immediately upon its receipt by the sender, or in lieu thereof, the unclaimed
letter together of the sworn / certified copy of the notice given by the postmaster to the
addressee.351
2.
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. 352
3.
Late filing of the affidavit of service may be considered as substantial compliance
with the Rules.353
4.
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.354
NOTICE OF LIS PENDENS
349
Maceda v. De Guzman vda de Macatangay, 481 SCRA 415

351
352
Cruz v Court of Appeals, 388 SCRA 72
353
Ace Navigation, Inc v Court of Appeals, 338 SCRA 70
354
PEA v Caoibes, Jr., 312 SCRA 767
350
1.
Is an announcement to the world that a particular property (real) is in litigation,
serving as a warning that one who acquires the property or an interest therein does at
his own risk which is filed with the Office of the Register of Deeds of the place where the
property is located.
1.
It shall contain (a) the names of the parties (b) object of the action or defense (c)
description of the property.355
2.
It is only from the time of the filing of the notice for record shall a purchaser or
encumbrancer of the property affected thereby, be deemed to have constructive notice
of the pendency of the action and only of its pendency against parties designated by
their real names
3.
It is available only in an action affecting title or right of possession of real
property. Specifically in actions (a) to recover possession of real estate
(b)to quiet
title (c) to remove a cloud (d) for partition (e) other proceeding of any kind in court
directly affecting title to the land or the use or occupation thereof or buildings thereon. 356
4.
There is no such action called annotation of lis pendens A notice is ordinarily
recorded without the courts intervention. The annotation of a notice is not proper if the
action is in personam. For it to be proper, the action must be one affecting real
property.357
WHO MAY AVAIL OF IT
1.
The plaintiff or the defendant when affirmative relief is claimed in the answer
WHEN MAY IT BE CANCELLED

1.
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.358
RULE 14 SUMMONS
SUMMONS DEFINED
1.
It is a writ issued sealed and signed by the clerk of court upon filing of a
complaint and payment of requisite legal fees 359 issued to and directed to the defendant
containing the following: (a) name of the court and of the parties (b) a direction that the
defendant answer within the time fixed by the Rules, and (c) notice that unless
355

Viewmaster Construction Corporation v Maulit, 326 SCRA 821, Alberto v Court of Appeals, 334 SCRA 756
357
AFP Mutual Benefit Assocation v Court of Appeals, 327 SCRA 203
358
Lim v Vera Cruz, 356 SCRA 386
359
356
defendant answers, plaintiff will take judgment by default and may be granted the relief
prayed for.
1.1
To be attached thereto is a copy of the complaint and the order for the
appointment of a guardian ad litem, if any.360
2.
It shall also contain a reminder to the defendant to observe restraint in filing a
motion to dismiss and instead allege the grounds thereof as defenses in the answer. 361
WHO SERVES SUMMONS
1.
The sheriff, his deputy, or other proper Court Officer, or for justifiable reasons by
any suitable person authorized by the court issuing the summons. 362
2.
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. 363
SIGNIFICANCE OF SUMMONS
1.
The significance of summons is that it is the primary means by which a Court is
able to acquire jurisdiction over the person of the defendant and to give notice that an
action has been commenced against him. It is the writ by which a defendant is notified
of the action brought against him.364
2.
Jurisdiction cannot be acquired over the person of the defendant even if he
knows of the case against him unless he is validly served with summons 365 or the
defendant voluntarily appears in the action.
3.
Voluntary appearance shall be equivalent to service of summons. The inclusion
in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of
the defendant shall not be deemed a voluntary appearance. 366
3.1
360
The rule abandons previous rulings of the Supreme Court that a motion to
dismiss on the ground of lack of jurisdiction over the person be based
solely on that ground, otherwise, it is a voluntary appearance. This is so
because of the omnibus motion rule367 that all objections then available
be included otherwise they are waived, as the only exceptions are (a) the
Court has no jurisdiction over the subject matter; (b) there is another
action pending between the same parties for the same cause; (c) or, the

A.M. No. 03-1-09-SC
362
363
364
Cano-Gutierrez v. Gutierrez, 341 SCRA 670
365
UCPB v Ongpin, 368 SCRA 464
366
Supra, Section 20, Rules 14
367
361
action is barred by prior judgment or statute of limitations. 368 These

defenses are not barred if not set up.
WHAT ARE THE MODES OF SERVICE
1.
Service in person on the defendant by handling a copy thereof to the defendant
in person, or if he refuses to receive and sign for it, by tendering it to him 369
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.370
368
2.1
The rule presupposes that a relation of confidence exists between the

parties with whom the copy is left and the defendant, and, therefore,
assumes that such person will deliver the process to the defendant or in
some way give him notice thereof.
2.2
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. 371
2.3
Within a reasonable time has been interpreted to contemplate a period of

time longer than that demarcated by the word prompt and presupposes a
prior attempt at personal service that failed. 372 In a later case373 it was
defined as so much time as necessary under the circumstances for a
reasonably prudent and diligent man to do, conveniently, what the contract
or duty requires to be done. One month from issuance of summons can be
considered as reasonable. Several attempts (at least 3) at personal
service must be made, preferably on separate dates. In addition the sheriff
must cite why efforts were unsuccessful.
2.4
Service of summons on the defendant shall be by personal service first

and only when the defendant cannot promptly be served in person will
substituted service be availed of.374

370
371
Hamilton v Rey, GR 139283, November 15, 2000
372
Laus v Court of Appeals, 219 SCRA 688
373
Manotoc v Court of Appeals, GR No. 130974, August 16, 2006
374
Samartino v Raon, 383 SCRA 664
369
3.
Service by publication with leave of court, obtained by the filing of a motion in
writing, supported by an affidavit of the plaintiff or some person in his behalf, setting
forth the ground that allows resort to it.375
3.1
The grounds that allow service of summons by publication are: (a) Identity
of the defendant is unknown or whereabouts of the defendant is unknown
and cannot be ascertained by diligent inquiry 376 (b)
Defendant does not
reside and is not found in the Philippines but the suit can be maintained
against him because it is in rem or quasi in rem 377 (c) Defendant is a
Philippine resident but is temporarily out of the country. 378 Note the cross
reference with Section 15 and the fact that substituted service may also be
availed of.
4.
Extra-Territorial Service is allowed in suits against a non-resident defendant not
found in the Philippines can be made by:
4.1
(a) Personal service (b) Publication in a newspaper of general circulation

in such places and for such time as the court may order, in which case a
copy of the summons and order of the court shall be sent by registered
mail to the last known address (c) Or any other manner the court may
deem sufficient.379 Resort to registered mail has been deemed
appropriate.380
4.2
Extra-Territorial Service can be availed of when: (a) Action affects the

personal status of the plaintiff (b) Action relates to, or the subject of which
is property within the Philippines in which the defendant has or claims a
lien or interest, actual or contingent (c) When the relief demanded, in
whole or in part consists of excluding the defendant from any interest in
property located in the Philippines (d) When the defendants property has
been attached in the Philippines.381
4.3
Resort to extra-territorial service requires leave of court.
UPON WHOM MAY SERVICE OF SUMMONS BE MADE

1.
Service of summons is to be made upon the defendant.

1.1
375
If the defendant is: (a) 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

377
378
379
Supra, Section 15, Rule 14, Valmonte v Court of Appeals, 252 SCRA 92
380
Cariaga v Malaya, 143 SCRA 441
381
376
any person whose connection with the entity has, upon due notice, been
severed before the action was brought 382 (b) A 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 mother383 (c) Republic of the Philippines it is to be
served on the Solicitor General 384 (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 direct 385 (e) Domestic Private
Juridical Entity is to be served on the president, managing partner,
general manager, corporate secretary, treasurer or in house counsel. 386
Note the abandonment of doctrine of substantial compliance. 387 Basic is
the rule that strict compliance with the mode of service is necessary to
confer jurisdiction of the court over a corporation. 388 (f) Foreign Private
Juridical Entity is to be served upon its resident agent. If there be no
resident agent, the Government official designated by law such as the
SEC, Insurance Commissioner, Superintendent of Banks. If none, any of
its officers or agents in the Philippines. Note the required sequence of
service. In addition, if a lawyer enters an appearance without proof of
having been engaged by the foreign corporation, no voluntary appearance
can be inferred.389
AFTER SERVICE IS COMPLETE, WHAT MUST SERVER DO
1.
Within 5 days after completion, a copy of the return must be served, personally or
by registered mail, to plaintiffs counsel, and he shall return the summons to the clerk of
court who issued it together with proof of service. 390
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 is required to be sworn to if made by a
person other than the sheriff or his deputy.391
2.1
382
If summons is by publication, proof of service consists of: (a) Affidavit of

printer, foreman, principal clerk editor, business manager or advertising
manager, copy of the publication attached, and (b) Affidavit showing the
deposit of a copy of the summons and order for publication in the post

384
385
386
387
Mason v Court of Appeals, 413 SCRA 303, E.B. Villarosa and Partner Co, Ltd v. Benito, 312 SCRA 65
388
Santiago Sr. vs. Bank of the Philippine Islands, 566 SCRA 435
389
Litton Mills v Court of Appeals, 256 SCRA 696
390
391
383
office, postage prepaid directed to the defendant by registered mail at / to

his last known address.392
RULE 15 MOTIONS
DEFINED
1.
A motion is an application for relief other than a pleading. 393
REQUISITES OF A VALID MOTION

1.
Shall be in writing except when made in open court or in the course of the
hearing or trial.394 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.395
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. 396 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.
397
392
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 him on his
objection. The objective is to avoid a capricious change of mind in order to
provide due process to both parties and ensure impartiality.398
4.2
The absence of the notice of hearing will not toll the running of the
reglementary period for appeal.399 It is considered a pro-forma motion.400

Supra, Section 1, Rule 15,
394
395
396
397
398
Fajardo v Court of Appeals, 354 SCRA 736
399
Cledera v Sarmiento, 39 SCRA 553
400
Jehan Shipping Corporation v NFA, GR No. 159750, December 14, 2005
393
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 reason sets the
hearing earlier.401
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.402
6.
There must be proof of service of every written motion set for hearing otherwise it
shall not be acted upon.403
6.1
As a general rule, proof of service is mandatory.404
6.2
A judge can act ex-parte on a motion where the rights of the adverse party
are not affected.405
WHEN SHOULD MOTIONS BE SET

All motions must be scheduled for hearing on Friday afternoons or if it be a non-working
holiday, in the afternoon of the next working day unless the motion requires immediate
action.406This day is Motion Day.
WHAT SHOULD A MOTION CONTAIN
1.
A motion attacking a pleading referring to a motion to dismiss, or attacking an
order, judgment, or proceedings referring to a 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.407
401
1.1
This is the Omnibus Motion Rule.408
1.2
The purpose of the Rule is to obviate multiplicity of motions as well as

discourage dilatory pleadings.409 Litigants should not be allowed to
reiterate identical motions speculating on the possible change of opinion
of the court or judges thereof.410

Remonte v. Bonto, 16 SCRA 257
403
404
Cruz v Court of Appeals, 388 SCRA 72
405
Sumadchat v Court of Appeals, 111 SCRA 488
406
407
408
409
Dacanay v Alvendia, 30 SCRA 31
410
Miranda v Court of Appeals, 71 SCRA 295
402
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 objections must be available to the party at the time
the motion was filed.411
2.
If motion is one for leave to file a pleading or a motion, it shall be accompanied
by the pleading or motion sought to be admitted. 412 Example: Motion for leave to admit
amended complaint.
3.
As to form, the Rules applicable to pleadings shall apply to written motions as far
as it concerns captions, designation, signature and other matters. 413
RULE 16 MOTION TO DISMISS
WHEN AND HOW IT CAN BE FILED
1.
By Motion, within the time for the filing of an answer but before the filing of an
answer.
1.1
The rule is not absolute as a motion to dismiss may still be filed after
answer on the ground of (a) lack of jurisdiction (b) litis pendentia (c) lack of
a cause of action, and (d) discovery during trial of evidence that would
constitute ground for dismissal.414
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 the action is
dismissed, it shall be without prejudice to the prosecution in the same / separate action
of a counter-claim pleaded in the answer.415
WHAT GROUNDS ARE AVAILABLE
A motion to dismiss may be made on any of the following grounds: 416
1. The court has no jurisdiction over the person of the defending party
2. The court has no jurisdiction over the subject matter of the claims
3. Venue is improperly laid
411
PH Credit Corporation v Court of Appeals, 370 SCRA 155

413
414
Panganiban v Pilipinas Shell Petroleum Corporation, 395 SCRA 624
415
416
412
3.1
An objection to improper venue must be made before a responsive

pleading is filed, otherwise it is deemed waived. 417
4. Plaintiff has no legal capacity to sue

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.418
5. There is another action pending between the same parties for the same cause
417
5.1
This is known as litis pendentia
5.2
The requisites for its application are: (a) Identity of the parties, or at least
such as representing the same interests in both actions (b) Identity of
rights asserted and reliefs prayed for, the relief being founded on the same
facts. Identity in both cases, is such that judgment in the pending case
would, regardless of which party is successful amount to res judicata in
the other.419
5.3
As between the first and second or latter actions, apply the priority in time
rule, but the rule must yield to the more appropriate action rule. 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.420
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.421
5.5
Three relevant conditions to determine which action should be dismissed

on the ground of litis pendentia : (a) date of filing, with preference
generally given to the first action filed to be retained (b) whether the action
sought to be dismissed was filed merely to preempt the later action or to
anticipate its filing and lay the basis for its dismissal, and (c) whether the
action is the appropriate vehicle for litigating the issues between the
parties.422
Fernandez v ICB, 316 SCRA 326

Columbia Pictures, Inc. v Court of Appeals, 261 SCRA 144, Travelwide Assn of the Phil. v. Court of Appeals,
199 SCRA 205
419
Victronics Computer v RTC, 217 SCRA 517
420
Teodoro v Mirasol, 99 Phil 150
421
Roa-Magsaysay v Magsaysay, 98 SCRA 592
422
UCPB vs. Beluso, G.R. No. 159912, August 17, 2007
418
5.6
6.
423
Where the litigant is engaged in forum shopping, the other party may ask
for the summary dismissal of the two cases. The well entrenched rule is
that a party cannot, by varying the form of the action or adopting a
different method of presenting his case, escape the operation of the
principle that one and the same cause of action shall not be twice
litigated.423
The cause of action is barred by a prior judgment or by the statute of limitations

6.1
This is known as Res Judicata, whose requisites are: (a) The existence of
a former judgment that must be final (b) Rendered by a court having
jurisdiction over the subject matter and the parties (c) It must be a
judgment or order on the merits (d) There must be between 1 st / 2nd action,
identity of parties / subject matter / causes of action.
6.2
The doctrine is founded on 2 grounds: (a) Public policy and necessity

which makes it in the interest of the state that there should be an end to
litigation (b) Litigant should be spared the hardship of being vexed twice
for the same cause
6.3
Note that there can be no res judicata in support cases as future support
cannot be compromised.424
6.4
A dismissal of a complaint on the ground that the plaintiff failed to

prosecute his action because of failure to cause service of summons by
publication within a reasonable time does not constitute res judicata as the
court cannot be said to have acquired jurisdiction over the person of the
defendant.425
6.5
A previous final judgment denying a petition for declaration of nullity on the

ground of psychological incapacity shall bar a subsequent petition for
annulment on the ground of lack of a marriage license as the cause of
action is the same, although the ground on which the action is predicated
has been varied. A party cannot avoid the application of res judicata by
varying the form of the action or adopting a different method of presenting
his case.426
6.6
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.
PCIB vs. Court of Appeals, G.R. No. 114951, July 18, 2003
De Asis v Court of Appeals, 303 SCRA 176
425
Gardose vs. Tarroza, G.R. No. 130570, May 19, 1998
426
Maillon vs. Alcantara, G.R. No. 141528, October 31, 2006
424
7.
The pleading asserting the claim states no cause of action.

7.1
The Test of the Sufficiency of a Cause of Action is: Whether accepting the
veracity of the facts alleged in the complaint, the Court can render a valid
judgment 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. The court can properly
dismiss without a hearing by taking into consideration the discussion in the
motion and the opposition thereto.427
7.3
Distinguishing a failure to state a cause of action/no cause of action from

lack of a cause of action 428: (a) The former refers to insufficiency of
allegations, while the latter refers to insufficiency of factual basis (b) The
former is raised only in a in a motion to dismiss before responding to a
complaint, while the latter can be raised at any time (c) The former allows
dismissal to be had at the early stages of the action, while the latter
allows dismissal after questions of fact have been resolved after evidence
is presented or stipulations / admissions are had.
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
10.
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. 429
A condition precedent for filing the claim has not been complied with
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. 430 It may be waived if
not raised seasonably in a motion to dismiss. 431
RESOLUTION OF A MOTION TO DISMISS

1.
It shall be heard432, 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
427
Nadela v. City of Cebu, 411 SCRA 315

Supra, Rule 33
429
Litonjua v Fernandez, 427 SCRA 478
430
Junson v martinez, 405 SCRA 390
431
Banares v Balising, 328 SCRA 36
432
428
not available at that time. Should the case eventually go to trial, the evidence during the
hearings shall automatically be part of the evidence of the 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.433
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 the 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.
3.1
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. 434
3.2
The effect of dismissal is that subject to the right to appeal, an order

granting a motion to dismiss on the grounds of (a) prior judgment or
statute of limitations (b) claim / demand has been paid, waived abandoned
or otherwise extinguished, or (c) is unenforceable under the statute of
frauds shall bar a re-filing of the same.435
RULE 17 - DISMISSAL OF ACTIONS

PLAINTIFF DISMISSAL OF HIS OWN COMPLAINT
1.
433
A plaintiff may cause the dismissal of his complaint by:

1.1
Filing of a notice of dismissal at anytime before service of an answer or

motion for summary judgment. Once filed, the court shall issue an order
confirming the dismissal, which is without prejudice, unless stated
otherwise but, such dismissal will operate as adjudication on the merits
when filed by a plaintiff who has once dismissed in a competent court, his
action based on or including the same claim. 436 This is known as the 2
dismissal rule.
1.2
The action of the court is to confirm the dismissal. Hence, upon filing of
the notice, the complaint is considered as dismissed. 437

435
436
437
Bar, 1989
434
2.
Or, by filing a motion to dismiss if an answer or a motion for summary judgment
has been served but such will not result in dismissal without the approval of the court
and upon terms and conditions as the court deems proper.
2.1
If a counterclaim has been pleaded before service of motion to dismiss

the dismissal is limited to the complaint. It shall be without prejudice to the
right of the defendant to prosecute his counterclaim in a separate action
unless within 15 days from notice of the motion he manifests a preference
to have it resolved in the same action.
2.2
Unless specified, a dismissal is without prejudice.
2.3
Note also that a class suit shall not be dismissed or compromised without
the approval of the Court.438
COURT DISMISSAL ON ITS MOTION OR THAT OF DEFENDANT

1.
The court can motu propio or upon motion of the defendant dismiss a complaint
when: (a)If, for no justifiable reason, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint (b) If, for no justifiable reason,
plaintiff fails to prosecute his action for an unreasonable length of time (c) If, for no
justifiable reason, plaintiff fails to comply with Rules of Court or any order of the Court.
1.1
A dismissal shall have the effect of an adjudication on the merits, unless

otherwise declared by the court.
1.2
Dismissal is without prejudice to the right of the defendant to prosecute his

counterclaim in the same or a separate action and shall have the effect of
an adjudication on the merits unless otherwise declared by the court. 439
2.
The remedies of a plaintiff are: (a) Appeal the dismissal as it is a final order, or (b)
If without prejudice, refile the action as an order dismissing without prejudice is not
subject to appeal.
3.
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.440
APPLICABILITY OF THE RULE
1.
The Rule also applies to dismissal by the defendant of his counterclaims crossclaims or 3rd party claims.
438

440
Ruiz, Jr v CA, 212 SCRA 660
439
1.1
Voluntary dismissal by the claimant by notice as under Section 1 of the

Rule shall be made before a responsive pleading, motion for summary
judgment is served, or if there be none, before introduction of evidence at
the trial or hearing.441
RULE 18 PRE-TRIAL
WHAT IS PRE-TRIAL
1.
It is a procedural devise intended to clarify and limit the basic issues between the
parties. Its main objective is to simplify, abbreviate and expedite trial, or otherwise
dispense with it.442
2.
It is a conference or hearing at which the court, with the cooperation of the
parties, seeks to determine definitively what precisely the factual issues to be tried are
and how each party intends to establish his position on each disputed factual issue.
WHEN CONDUCTED
1.
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. 443
1.1
SC Adm. Circular 3-99 dated January 15, 1999 defined promptly as 5

days.
1.2
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.
1.3
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 (a) reaching a settlement (b) pre-marking of documents and
exhibits (c) consider other matters that will aid in the prompt disposition of
the case.
1.4
The judge is also directed to consider assisting the parties in effecting a

settlement given the evidence of the parties.
2.
The last pleading is the answer to the original complaint, cross claim, or, third
party complaint and the reply.
NATURE AND PURPOSE
441

Interlining v Philippine Trust Company, 378 SCRA 521
443
442
1.
Pre-trial is by nature mandatory and the purpose for its conduct is to take up the
following matters:444
1.1
Possibility of amicable settlement / or submission to alternative modes of

dispute resolution. The alternative modes are: (a) arbitration (b) mediation
(c) conciliation (d) early neutral evaluation (e) mini-trial, or (f) any
combination of the foregoing.445
1.2
Simplification of the issues
1.3
Necessity / desirability of amendment to the pleadings
1.4
Possibility of obtaining stipulations or admissions of fact and of documents

to avoid unnecessary proof
1.5
Limitation of number of witnesses
1.6
Advisability of a preliminary reference of issues to a commissioner
1.7
Propriety of judgment on the pleadings, summary judgment, or dismissing

the action if a valid ground therefor be found to exist.
Hence, a motion for judgment on the pleadings or summary judgment
must be filed as in a pre-trial the court merely determines its propriety.
1.8
Advisability of suspending the proceedings
1.9
Such other matters as may aid in the prompt disposition of the action
UPON WHOM NOTICE OF PRE-TRIAL IS TO BE SERVED

1.
It shall be served on counsel, or party if not represented by counsel.

1.1
Counsel is charged with the duty to notify the party.446
2.
Notice is so important that it would be grave abuse of discretion for the court to
allow plaintiff to present his evidence ex parte for failure of the defendant to appear
before the pre-trial who did not receive through counsel a notice of pre-trial.
2.1
444
Accordingly, there is no legal basis to consider a party notified of the pretrial and to consider that there is no longer any need to send a notice
because it was counsel who suggested the date of pre-trial. 447

RA 9285, Alternative Dispute Resolution Act of 2004
446
447
Agulto v Tecson, 476 SCRA 395
445
WHOSE PRESENCE IS REQUIRED AT PRE-TRIAL

1.
The parties and counsel are required to be present during the pre-trial. A party
may be excused if: (a) A valid cause is shown therefore (b) A representative shall
appear duly authorized in writing to do the following: (1) enter into amicable settlement;
(2) submit to alternative modes of dispute resolution; (3) enter into stipulations /
admissions of fact / documents.448
EFFECT OF FAILURE TO APPEAR
1.
If plaintiff fails to appear despite due notice, he may be declared non-suited and
the complaint is dismissed. The dismissal shall be with prejudice, unless otherwise
ordered by the court.
1.1
His remedy is to appeal order of dismissal because it is a final resolution.

If dismissed without prejudice, he can refile the complaint
2.
If defendant fails to appear despite due notice, plaintiff is allowed to present his
evidence ex-parte and the court may render judgment on the basis thereof. 449
3.
What is penalized is the failure to appear of either the plaintiff or the defendant,
and not their respective counsel.450
4.
As a rule, there can be no second pre-trial unless both parties consent. 451
WHAT MUST BE FILED BEFORE PRE-TRIAL

1.
A pre-trial brief must be filed and served on the adverse party at least 3 days
before the pre-trial containing:452
448
1.1
Statement of willingness to enter into an amicable settlement, the desired

terms or to submit to alternative modes of dispute resolution
1.2
Summary of admitted facts / proposed stipulation of facts
1.3
Issues to be tried or resolved
1.4
Number of witnesses / names, abstract of testimonies, approximate

number of hours that will be required for presentation of their respective
evidence

450
Paredes v. Verano
451
Young v Court of Appeals, 204 SCRA 584
452
449
2.
1.5
Copies of all documents intended to be presented which statement of the

purposes of their offer
1.6
Manifestation of their having availed of or their intention to avail of

discovery procedure, or need for referral of any issues to commissioners
1.7
Applicable law / jurisprudence
1.8
Available trial dates of counsel for complete presentation of evidence

which must be within a period 3 months from the first day of trial. 453
Note that the failure to file a brief shall have the same effect as failure to appear.
3.
Neither can the court conduct a pre-trial without the parties filing their pre-trial
454
briefs.
PRE-TRIAL ORDER
1.
Proceedings shall be recorded. Upon termination, court shall issue an order
which shall recite in detail: (a) matters taken up (b) action taken thereon (c)
amendments allowed to the pleadings (d) agreements / admissions made by the parties
as to any of the matters taken which shall be binding and conclusive upon the parties 455
(e) explicitly defining and limiting the issues to be tried.
2.
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.456
2.1
The object of a pre-trial order is to control the subsequent course of the

action as trial shall be limited to the issues stated in the pre-trial order, 457,
unless modified to prevent manifest injustice. 458
2.2.
Notwithstanding, courts are not required to resolve all issues raised in

pleading unless necessary for the resolution of the case. 459
RULE 19 INTERVENTION
453
Section 6, SC Adm. Circular 3-99, January 15, 1999

Vera vs. Rigor, et al. G.R. No. 147377, August 10, 2007
455
Heirs of Conahap v Regana, 458 SCRA 741
456
Son vs. Son, 251 SCRA 556; PPA vs. City of Iloilo, 406 SCRA 88
457
458
459
IBAA vs. IAC, 167 SCRA 450
454
WHO MAY INTERVENE

1.
A person who has a (a) legal interest in the matter in litigation (b) has legal
interest in the success of either of the parties (c) has an interest against both or (d) is so
situated as to be adversely affected by a distribution or other disposition of property in
the custody of the court or an officer thereof. 460
1.1
Examples are (a)an action for payment of money, where personal property
of the defendant is attached, a 3 rd person claiming the attached property
can intervene (b) action by alleged owners of the land sought to be
foreclosed.
1.2
2.
The interest which entitles a person to intervene in a suit must be in the

matter in litigation and of such direct and/or immediate character that
intervenor will either gain or lose by direct legal operation and effect of
judgment. 461
Intervention does not lie for a transferee pendente lite. 462
HOW AND WHEN CAN A PERSON INTERVENE

1.
Filing of a motion for leave of court to intervene, attaching thereto a copy of the
pleading in intervention, which is then served on the original parties at any time before
rendition of judgment by the trial court. 463
1.1
The court may refuse leave when (a) It will unduly delay or prejudice the
adjudication of the rights of the original parties. Example: Delay or laches
in bringing intervention, or (b) Intervenors rights may be fully protected in
a separate proceeding. Example: Attachment of real property subject of a
mortgage
2.
The pleadings in intervention are (a) Complaint in Intervention, if he asserts a
claim against either or all of the original parties, or (b) Answer in Intervention, if he
unites with the defending party in resisting the claim of the plaintiff. 464
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 a land registration case as the remedy is to file an
opposition.
4.1
460
Neither is it allowed in cases covered by the Rules on Summary

Procedure.

Roxas v Dinglasan, 28 SCRA 430
462
463
464
461
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. 465
6.
An order denying a motion for intervention is appealable. 466
RULE 20 CALENDAR OF CASES

MAINTENANCE OF THE COURT CALENDAR
1.
The clerk of court, under the direct supervision of a judge, shall keep a calendar
for (a) pre-trial (b) trial (c) trials that were adjourned or postponed (d) those with motions
set for hearing.
2.
In fixing the calendar, preference is given to habeas corpus, election cases,
special civil actions and those required by law.467
ASSIGNMENT OF CASES
1.
The assignment of cases shall always by raffle done in open session of which
adequate notice shall be given to afford interested parties the opportunity to be
present.468 The purpose is to obviate public suspicion regarding assignment of cases to
predetermined judges.469
RULE 21 SUBPOENA
WHAT IS A SUBPOENA
1.
A process directed to a person requiring him to attend and testify at the hearing
or trial of an action, or at any investigation conducted by competent authority, or the
taking of his deposition
KINDS OF SUBPOENA
1.
The kinds of subpoena are: (a) Subpoena Ad Testificandum if it directs and
requires a person to attend and testify, or (b) Duces Tecum if it requires him to bring
books/documents/or other things under his control. 470
465
Barangay Matictic v Elbinias, 148 SCRA 83

Foster-Gallego v Galang, 435 SCRA 275
467
468
469
Ang v Bello, 163 SCRA 358
470
466
BY WHOM ISSUED
1.
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
Philippines471
1.1
A request by a party for the issuance of a subpoena does not require

notice to other parties to the action.472
2.
In taking depositions, the clerk of court shall not issue a subpoena duces tecum
without a court order.473
3.
Absent any proceeding, suit or action, commenced or pending before a court, a
subpoena may not issue.474
WHEN IS A WITNESS NOT BOUND BY A SUBPOENA
1.
Witness resides more than 100 kilometers from his residence to the place where
he is to testify by the ordinary course of travel. 475 This is also called the viatory right of
the 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.
1.1
If the viatory right is invoked, a witness can still be compelled to testify by

the taking of his deposition in a place within 100 kilometers from where he
resides, observing the following steps: (a) Party desiring to take deposition
shall give reasonable notice in writing to every other party in the action
stating the time, place, name and address of the person whose deposition
is to be taken. There should be proof of service of the notice (b) Proof of
service of notice to take deposition shall be presented to the clerk of court
of the place where deposition is to be taken (c) On the basis of such proof
of service, the clerk upon authority and under seal of the court, shall issue
the subpoena but a subpoena duces tecum cannot be issued without an
order of the Court (d) Subpoena is to be served on witness whose
deposition is to be taken.476
2.
Witness is a detention prisoner, if no permission of the court in which his case is
pending is obtained or if the witness is a prisoner sentenced to death, reclusion
perpetua or life imprisonment and is confined in a penal institution, if authority of the
471

Adorio v Bersamin, 273 SCRA 217
473
474
Collado v Bravo, 356 SCRA 411
475
476
472
Supreme Court to bring out the prisoner has not been obtained. The court should
examine and study the application properly to determine if it is being made for a valid
purpose.477
FORM AND CONTENTS OF SUBPOENA
1.
A subpoena must contain the following: (a) Name of the court (b) Title of
action/investigation and is to be directed to the person whose attendance is required. If
duces tecum, in addition, it must contain a reasonable description of the books,
documents, things demanded which is must appear to the Court to be prima facie
relevant.478
WHAT ARE THE GROUNDS TO QUASH A SUBPOENA
1.
If duces tecum, it may be quashed on the following grounds: (a) It is
unreasonable and oppressive (b) Relevancy of the books, documents or things do not
appear (c) Person in whose behalf subpoena is issued fails to advance the reasonable
costs of the production thereof (d) The witness fees and kilometrage allowed by the
rules were not tendered when subpoena was served. Under A.M. No. 04-2-04-SC,
witness fees shall be PHP 200.00 a day inclusive of all expenses
2.
If ad testificandum, it may be quashed on the following grounds: (a) Witness is
not bound by the subpoena (b) Witness fees and kilometrage allowed by rules were not
tendered when the subpoena was served. 479
HOW IS A SUBPOENA SERVED
1.
In the same manner as personal or substituted service of summons, original is to
be exhibited and delivered to person on whom it is served tendering the fees for one
day attendance at the kilometrage allowed by Rules except if subpoena is issued by or
on behalf of the Republic of the Philippines or an officer or agency thereof. Tender must
be made so as to allow the witness a reasonable time for preparation or travel to the
place of attendance.480
1.
If duces tecum, the cost of production of books, papers or things must also be
tendered.
2.
Under A.M. No. 04-2-04-SC, the fee for service of summons is PHP 100.00 per
witness.
CAN A PERSON BE COMPELLED TO APPEAR AND TESTIFY WITHOUT A
SUBPOENA
477

479
480
478
1.
Yes, when he is present in court, in which event it is as if he were in attendance
upon subpoena issued by the Court. 481
WHAT ARE THE CONSEQUENCES OF DISOBEDIENCE TO A SUBPOENA
1.
The consequences of disobedience are: (a) He may be arrested and brought
before the Court where his attendance is required, the cost of warrant and seizure shall
be paid by the witness if the Court finds disobedience to be willful and without just
excuse. 482 (b) Citation in contempt by the court from which the subpoena is issued. It
not issued by a Court, then in accordance with the applicable rule / law.483
RULE 22 COMPUTATION OF TIME
HOW COMPUTED
1.
The day of the act / event from which the designated period of time begins to run
is excluded and date of performance included.
2.
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.484
2.1
Should a party desire to file any pleading, even a motion for extension of
time to file a pleading, and the last day falls on a Saturday, Sunday or a
legal holiday, he may do so on the next working day. In case the motion for
extension is granted, the due date for the extended period shall be
counted from the original due date, not from the next working day on
which the motion for extension was filed.485
EFFECT OF INTERUPTIONS
1.
Allowable period after interruption shall start to run on the day after, notice of the
cessation of the cause thereof. The day of the act that caused cessation shall be
excluded in the computation of the period.
2.
Rule on computation of time dies not apply to prescription of offenses or causes
of action. Hence, if the last day falls on a Saturday, Sunday or legal holiday, it prescribes
on the said date.
RULES 23 TO 29 MODES OF DISCOVERY
WHAT IS DISCOVERY
481

483
484
485
Dela Cruz vs. Maersk Filipinas Crewing, Inc., 551 SCRA 284, AM No. 00-2-14-SC
482
1.
The methods used by the parties to a civil action to obtain information held by the
other party that is relevant to the action.
PURPOSES OF DISCOVERY
1.
The purposes of resort to discovery are: (a) It is a device to narrow down / clarify
the basic issues between the parties (b) It is a device to ascertain the facts relevant to
the issues.
1.1
Relevancy is determined by its logical tendency to prove or disprove a fact

or to make the fact more or less probable.
WHAT ARE THE MODES OF DISCOVERY

1.
The modes of discovery (a) Deposition pending action 486 (b) Deposition before
action or pending appeal 487(c) Interrogatories to parties488 (d) Request for admission by
adverse party489 (e) Production or inspection of documents / things 490 (f) Physical /
mental examination of persons491
WHAT IS A DEPOSITION
1.
A deposition is the taking of the testimony of any person, whether he be a party
or not, but at the instance of a party to the action.
1.1
This testimony is taken out of court by oral examination or written

interrogatory.
WHEN CAN DEPOSITIONS PENDING ACTIONS BE TAKEN

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.492
WHOSE DEPOSITION MAY BE TAKEN, HOW TAKEN, BY WHOM
486
Supra, Rule 23
Supra, Rule 24
488
Supra, Rule 25
489
Supra, Rule 26
490
Supra, Rule 27
491
Supra, Rule 28
492
487
1.
Any person, whether a party or not, upon oral examination or written
interrogatory upon the initiative of any party.
SCOPE OF A DEPOSITION
1.
The deponent may be examined regarding any matter, not privileged , which is
relevant to the subject of the pending action whether it relates to a claim or a defense of
any other party.
1.1
Including the existence, description, nature, custody, condition, location of

any books, documents or other tangible things and the identity and
location of persons having knowledge of relevant facts. 493
2.
The taking and scope of a deposition after notice is served for its taking by oral
examination may be limited.
2.1
Upon motion seasonably filed, by a party or the person to be examined,

and for good cause shown, the court in which the action is pending may
order: (a)
Deposition not be taken (b)It be taken only at some
designated place other than that stated in the notice (c)It be taken only on
written interrogatories (d) That certain matters shall not be inquired into
(e) That scope of the examination shall be held without anyone present
except the parties to the action, and their officers of counsel (f)That after
depositions are sealed, they shall be opened only by order of the court
(g)That secret processes, developments or research need not be
disclosed (h)That parties shall simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by the
Court (i) That court may make any order which justice requires to protect
the party or witnesses from annoyance embarrassment or oppression. 494
3.
During the taking of the deposition, it shall be taken subject to the additional
limitations:
493
494
3.1
During the taking of the deposition, on motion or petition of any party or

the deponent upon showing that the examination is being conducted in
bad faith or in such manner as to unreasonably annoy, embarrass or
oppress the deponent or a party, the court where the action is pending or
the RTC of the place where deposition is being taken may order the officer
taking the examination to cease forthwith or limit the scope as provided in
Section 16.
3.2
If terminated, it shall be resumed thereafter only upon order of the Court in

which the action is pending. Upon demand of the objecting
party/deponent, the taking shall be suspended for the time necessary to

make a notice for an order. In granting/refusing such order, the court may
impose upon either party or upon the witness the requirement to pay
costs/expenses as the Court may deem reasonable.495
BEFORE WHOM MAY DEPOSITIONS BE TAKEN
1.
Within the Philippines: a judge, notary public, or person authorized to administer
oaths, at any time or place if so stipulated in writing by the parties. 496
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.497
2.1
A Commission is an instrument issued by a court of justice or other

competent tribunal to authorize persons to take a deposition or do any
other act by authority of such court or tribunal. A Commission is addressed
to officers designated by name or descriptive title.
2.2
Letters Rogatory is an instrument sent in the name and by authority of a

judge or court to another, requesting the latter to cause to be examined,
upon interrogatories filed in a case pending before the former, a witness
who is within the jurisdiction of the judge or court to whom such letters are
addressed. Letters Rogatory are addressed to a judicial authority in a
foreign country and may be applied for and issued only after a commission
has been returned unexecuted.
WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS

1.
A Person who is a relative within the 6 th degree of consanguinity / affinity or
employee or counsel of any of the parties or relative within the same degree or
employee of counsel or is financially interested in the action. 498
TAKING OF A DEPOSITION UPON AN ORAL EXAMINATION
1.
The taking is initiated by the 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.
1.1
495
On motion of a party upon whom notice is served, the court, for cause,
may enlarge or shorten the time.499

497
Supra, Sections 11, 12, and 14, Rule 23
498
499
496
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.
3.
All objections as to the qualifications of the officer taking the deposition, the
manner of taking the evidence presented, conduct of the parties or any other objection
shall be noted. Any evidence objected to shall be taken subject to the objections.
4.
Parties served with notice, in lieu of participating in the taking of the deposition,
may submit written interrogatories, which the officer taking the deposition shall
propound to the witness and record the answers verbatim. 500
5.
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 or 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.
6.
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.
7.
If not signed, the 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) ,
pertaining to 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. 501
8.
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 the
action is pending or sent by registered mail to the clerk thereof for filing. 502
9.
Notice of filing shall then promptly be given by the officer to all parties 503 and
upon payment of reasonable charges; he is to furnish copies of the deposition to any
party or the deponent. 504
TAKING OF A DEPOSITION UPON WRITTEN INTERROGATORIES
1.
Party desiring to take the deposition upon written interrogatories shall serve them
upon every other party with notice stating: (a) name and address of the person who will
500

502
503
504
501
answer them (b) descriptive title and address of the person who will take the deposition
(c) Within 10 days, party served may serve cross-interrogatories on the party proposing
to take the deposition (d) Within 5 days thereafter, the latter may serve re-direct
interrogatories upon the party serving crossinterrogatories (5) within 3 days after being
served of re-direct interrogatories, a party may serve re-cross interrogatories upon party
proposing to take deposition.505
2.
A copy of the notice and copies of all interrogatories shall be delivered by the
party taking the deposition to officer designated in the notice, who shall proceed
promptly in the manner provided by Sections 17, 19 and 20 to take the testimony of the
witness in response to the interrogatories and to prepare, certify, and file / mail the
deposition attaching copies of the notice and interrogatories. 506
3.
Officer must promptly give notice of filing / and may furnish copies to parties and
deponent upon payment of reasonable charges. 507
4.
Note that Sections 15, 16 and 18 are applicable and that by motion, it can be
asked that the deposition be upon oral examination.
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. 508
2.
If party giving notice does not serve subpoena and the witness does not appear,
court can order party giving notice to pay reasonable expenses for attendance plus
attorneys fees to a party who appears in person or by counsel 509
TAKING OF DEPOSITIONS BEFORE ACTION
DEPOSTIONS IN PERPETUAM REI MEMORIAM
OR
PENDING
APPEAL
OR
1.
A deposition before action is initiated by the filing of a verified petition by a
person desiring to perpetuate his testimony or that of any person in relation to any
matter cognizable in any court in the Philippines in the Court in the place of residence of
the expected adverse party. 510
505

507
508
509
510
506
1.1
The contents of the petition which shall be entitled in the name of the
petitioner and should show: (a) That petitioner expects to be a party to an
action in a Court in the Philippines but is presently unable to bring it or
cause it to be brought (b) The subject matter of the expected action and
his interest therein (c) The facts that he desires to establish by the
proposed testimony and his reasons for desiring to perpetuate it (d) The
names or description of the person he expects will be adverse parties and
their addresses so far as known (e) The names and addresses of the
persons to be examined and the substance of the testimony which he
expects to elicit from each and shall then ask for an order authorizing the
petitioner to take the depositions of the persons to be examined named in
the petition for the purpose of perpetuating their testimony.511
1.2
To Perpetuate means to preserve or make available testimony for later

use at a trial by means of deposition.
2.
After the petition is completed, the petitioner shall serve a notice upon each
person named in the petition as an expected adverse party, together with a copy of the
petition stating that: he will apply to the Court at a time and place stated therein, for the
order described in the petition.
2.1
At least 20 days before the date of the hearing, the Court shall cause
notice thereof to be served on the parties and prospective deponents in
the manner provided for service of summons. 512
3.
If the Court is satisfied that the perpetuation of testimony may prevent a failure of
justice or delay of justice, it shall make an order designating or describing the persons
whose depositions are to be taken, specifying the subject and whether it will be upon
oral execution or written interrogatories under Rule 23. 513
3.1
For purposes of applying Rule 23, references to the court in which the
action is pending shall be deemed to refer to the court in which petition for
such deposition is filed. 514
4.
A deposition taken under the Rule or although not so taken, it would be
admissible in evidence; it may be used in any action involving the same subject matter
contained in petition subsequently brought in accordance with Sections 4 and 5 of Rule
23.515
5.
A deposition pending appeal can be had If appeal is taken from a judgment of a
Court including the CA in proper cases or before the taking of an appeal if the time
therefore has not yet expired.
511

513
514
515
512
5.1
The Court in which judgment was rendered may allow taking of

depositions of witnesses to perpetuate their testimony for use in the event
of further proceedings in the said Court.
5.2
It is initiated by a party making a motion in said Court for leave to take

depositions upon the said notice and service thereof as if the action was
pending therein, the motion should state: (a) name and addresses of
persons to be examined and substance of testimony to be elicited (b)
reasons for perpetuating testimony.
5.3
If Court finds that it is proper to avoid failure or delay of justice, it may

allow the depositions to be taken and used in the same manner and under
same conditions as prescribed for depositions in pending actions. 516
EFFECT OF TAKING AND USING DEPOSITIONS

1.
A party shall not be deemed to make a person his own witness by taking his
deposition.517
2.
If introduced in evidence in whole/part for any purpose other than contradicting or
impeaching the deponent, such makes the deponent the witness of the party introducing
the deposition.
2.1
But it does not apply to the use of an adverse party of a deposition as

described in Par. (b) Section 4 of Rule 23. 518
USE OF DEPOSITION
1.
A deposition can be used at the trial, upon the hearing of a motion or an
interlocutory proceeding.
1.1
516
Any part of all of a deposition, so far as admissible under the rules of

evidence may be used against any party who was present, or represented
at the taking or had due notice thereof, in accordance with the following:
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 anyone 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

518
517
c.
Deposition of a witness, party or not, may be used by any party for

any purpose if the court finds that: (1) witness is dead (2)witness
resides more than 100 kilometers from the place of trial/hearing or
is out of the Philippines unless, it appears that his absence is
procured by the party offering the deposition (3) witness is unable
to attend/testify because of age, sickness, infirmity or imprisonment
(4) party offering the deposition has been unable to procure the
attendance of the witness by subpoena (5) upon application and
notice, exceptional circumstances exist as to make it desirable in
the interest of justice and with due regard to the importance of
presenting the testimony of witness in open court, to allow the
deposition to be used.
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.519
WHEN DOES THE DEPOSITION BECOME EVIDENCE OR WHEN CAN IT BE USED

AS EVIDENCE
1.
If the deponent is a party, the opposing party can use it to prove his claim or
defense.
1.1
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.
RESOLUTION OF OBJECTIONS WHEN DEPOSITIONS ARE PRESENTED
1.
Subject to the provisions of Section 29, objections may be made at the trial or
hearing to receive in evidence any deposition or part thereof for any reason which would
require the exclusion of the evidence if the witness were then present and testifying.
2.
Specific objections are resolved as follows:

2.1
519
As to notice, they are waived unless written objection is promptly served

upon the party giving the notice
2.2
As to disqualification of the officer, it is waived unless made before the

taking of the deposition or as soon thereafter as the disqualification
becomes known or could be discovered with reasonable diligence.
2.3
As to competency relevancy of evidence, as to competency of the witness

or competence, relevancy or materiality of the evidence/testimony, they
are not waived by the failure to make them before or during the taking of
the deposition unless the ground of the objection is one which might have
been obviated or removed if presented at that time
2.4
As to oral examination and other particulars Errors and irregularities

occurring at the oral examination in the manner of taking, the form of the
questions and answers, in the oath/affirmation, or the conduct of the
parties and errors of any kind which might be obviated, removed or cured
it promptly, prosecuted, are waived, unless reasonable objection thereto is
made at the taking of the deposition.
As to the form of written interrogatories, the objections are waived unless
served in writing upon party propounding them within the time allowed for
the serving of succeeding cross or other interrogatories and within 3 days
after service of the last interrogatory authorized.
2.5
2.6
As to manner of preparation, objections as to the manner in which the

testimony is transcribed, or the deposition is prepared, signed certified,
sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer
are waived, unless a motion to suppress the deposition or part thereof is
made with reasonable promptness after such defect is, or with due
diligence, might have been ascertained.520
HOW IS A DEPOSITION ACTUALLY USED AND ONCE A DEPOSITION HAS BEEN

USED, WHAT CAN ADVERSE/ OTHER PARTIES DO
1.
Generally, the deponent is called to testify. Hence he may be examined/crossexamined as permitted at the trial under Sections 3 to 18, Rule 132. 521
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. 522 This is called rebutting a
deposition.
IS USE OF THE DEPOSITION LIMITED TO THE ACTION/PENDING ACTION WHEN
IT WAS TAKEN
1.
No, because substitution of parties does not affect the right to use depositions
previously taken, when the action is dismissed and another action involving the same
subject is afterward brought between the same parties or their representatives or
520

522
521
successors in interest, all depositions lawfully taken and duly filed in the former action
may be used in the latter as if originally taken therefor.523
WRITTEN INTERROGATORIES
1.
The purpose of a written interrogatory is to enable any party desiring to elicit
material facts / relevant facts from any adverse party by the filing and service upon the
latter of a written interrogatory to be answered by the party served or if party is public /
private corporation or a partnership / association by any officer thereof competent to
testify in its behalf.524
2.
An interrogatory is allowed under the same conditions as specified in Section 1,
Rule 23 as to when it is to be had.
HOW AND WHEN ANSWERED

1.
Responses, which must be signed and sworn to, must be filed within 15 days
from service, unless the Court on motion and for good cause shown extends or
shortens the time525
2.
Objections, if any, may be presented to the court within 10 days after service of
notice as in the case of a motion, answers shall then be deferred until objections are
resolved, which shall be as early a time as is practicable. 526
HOW MANY INTERROGATORIES
1.
No party may, without leave of court, serve more than one set of interrogatories
to be answered by the same party.527
SCOPE AND USE
1.
It may relate to any matters that can be inquired into under Section 2, Rule 23
and the answers used for the same purpose provided for by Section 4, Rule 23. 528
EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES
523

525
526
527
528
524
1.
Unless thereafter allowed by the court for good cause shown and to prevent
failure of justice, a party not served with written interrogatories may not be compelled by
the adverse party to give testimony in open court or give a deposition pending appeal. 529
DISTINGUISHING DEPOSITION
WRITTEN INTERROGATORIES
UPON
WRITTEN
INTERROGATORIES
AND
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.
RULE 26 REQUESTS FOR ADMISSIONS

WHAT IS A REQUEST FOR ADMISSION
1.
It is a written request for the (1) admission of the genuiness of any material and
relevant document described in and exhibited with the request or (2) the truth of any
material or relevant matter of fact set forth in the request.
2.
A party may file and serve a request for admission upon any other party at any
time after the issues have been joined.530
EFFECT OF FILING AND SERVICE UPON ANY OTHER PARTY
1.
Each of the matters of which an admission is requested shall be deemed
admitted unless, within a period designated in the request, which shall not be less than
15 days after service thereof or such period which the Court will allow on motion, the
party served files and serves upon the requesting party a sworn statement, either
denying specifically the matters is setting forth in detail the reason why he cannot
truthfully either admit / deny.
2.
Objections, if any shall be submitted to the Court within the period for complying
and prior to filing of the Sworn Statement.
2.1
Compliance is then deferred until objections are resolved which should be

done as early as practicable.531
EFFECT OF ADMISSIONS
529

531
530
1.
It is for the purpose of the pending action only and shall not constitute an
admission by him for any purpose or used against him in any other proceeding 532
1.1
Although any admission, express or implied may be allowed by the court

to be withdrawn or amended upon such terms as may be just. 533
EFFECT OF FAILURE TO SERVE

1.
Unless otherwise allowed by the Court for good cause and to prevent failure of
justice, a party who fails to serve a request for admission of material / relevant facts at
issue on the adverse party, which are or ought to be within the latters personal
knowledge, shall not be permitted to present evidence on such facts. 534
RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
HOW AVAILED OF
1.
On motion of any party showing good cause, the court where the action is
pending may order, specifying the time, place and manner and prescribing such terms
and conditions as are just, that:
1.1
Any party to produce and permit the inspection, copying, photographing,

by or on behalf of a having party of any designated documents, papers,
books, accounts, letters, photographs, objects or tangible things, not
privileged which constitute or contain evidence material to any matter
involved in the action which are in his possession and control.
1.2
Or, permit entry upon designated land or other property in his possession /
control for the purpose of inspecting, measuring, surveying or taking
photographs of the property or any designated relevant object or operation
thereon.535
2.
This mode of discovery is resorted to determine the contents or status of
documents or things and/or the preservation of the same.
532

534
535
533
3.
The requisites that have to be complied with to compel the other party to produce
or allow the inspection of documents or things are: (a) the party must file a motion
showing good cause (b) notice of the filing of the motion must be served on all
parties (c) the motion must designate the papers or things that are to be produced
and inspected (d) such papers or things are not privileged (e) that they constitute
or contain evidence material to any matter involved in the litigation, and (f) that
they are in possession, control or custody of the other party.536
RULE 28 PHYSICAL / MENTAL EXAMINATION OF PERSONS

WHEN AVAILED OF
1.
In an action in which the mental or physical condition of a party is in controversy,
a court in its discretion, can order him to submit to physical / mental examination by a
physician.537
1.1
It can be ordered only upon motion for good cause shown, with notice to
the party to be examined and to all other parties, specifying the time,
place, manner, condition and scope of the examination and person/s by
whom it is to be made.538
2.
Once the examination is completed, the party examined may request that a
detailed written report of the examining physician setting forth his findings / conclusions.
536
2.1
If requested and delivered, the party causing examination to be made is

entitled to request and receive from examined party a like report of the
same mental / physical examination / condition previously or thereafter
made.
2.2
If request is refused, the court on motion may order delivery by the party
examined on such terms as are just. If the physician fails / refuses to
make such report, his testimony may be excluded if his testimony is
offered at trial. 539
2.3
Note that a waiver of privilege is caused by requesting and obtaining a

report of the examination ordered or by taking the deposition of the
examiner, the party examined waives any privilege he may have in that
action or any other involving the same controversy regarding the
testimony of every other person who has examined or may thereafter
examine him in respect of the same mental / physical examination. 540 This
refers primarily to the privilege between doctor and patient.
Solidbank Corporation vs. Gateway Electronics Corporation, 553 SCRA 256

538
539
540
537
RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY

EFFECTS OF THE REFUSAL TO COMPLY
1.
If he refuses to answer upon being directed to do so or refuses to be sworn, it will
constitute contempt of court. A citation in contempt shall ensue after the following steps
have been followed or observed:
1.1
If the party/deponent refuses to answer any question upon oral

examination, the deposition may be completed on other matters or
adjourned as the proponent may prefer.
1.2
The proponent may then apply for an order to compel an answer in the
proper court where the deposition is being taken. This is also applicable to
interrogatories.
1.3
If granted, the court can order that answer be made and if it finds that
refusal is without substantial justification it may impose upon deponent /
counsel advising that no answer be given or both reasonable expenses
and attorneys fees in obtaining the order. If denied and the court finds
application was filed without substantial justification proponent / counsel
advising application or both may in the same manner be sanctioned. 541
2.
Other consequences that are applicable to Sec 1, Rule 29, Rule 27 and Rule 28,
the Court may issue an:
2.1
Order that the matters regarding which the questions are asked, character
/ description of thing or land / contents of a paper or physical / mental
condition of a party shall be taken to be established in accordance with the
claim of the party obtaining the order.
2.2
Order refusing to allow the disobedient party to support / oppose

designated claims / defenses or prohibiting him from introducing in
evidence the designated things / documents or items of testimony or from
introducing evidence of physical / mental condition.
2.3
Order striking out pleadings or parts thereof or staying proceedings until

the order is obeyed, dismissing the action or proceeding or any part
thereof, or rendering judgment by default against the disobedient party.
2.4
In lieu or in addition to orders, the disobedient party can be ordered

arrested except in relation to a physical / mental examination. 542
OTHER SANCTIONS
541
542

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. 543
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, (d) and ,in its discretion, order payment of
reasonable expenses and attorneys fees544 but no expenses or fees are to be
assessed against the Republic of the Philippines. 545
RULE 30 TRIAL
NOTICE OF TRIAL
1.
Upon entry of a case in the trial calendar the clerk shall notify the parties of the
date of the trial in such manner as to ensure receipt of the notice at least 5 days before
such date.546
MAY TRIAL BE POSTPONED / ADJOURNED
1.
Courts may adjourn a trial from day to day, and to any stated time as the
expeditious and convenient transaction of business may require but it shall have no
power to adjourn for a longer period than one month for each adjournment, nor more
than three months in all, except when authorized in writing by the Court Administrator of
the Supreme Court.547
IF MOTION TO POSTPONE IS DUE TO ABSENCE OF EVIDENCE
1.
Can only be granted upon affidavit showing the materiality / relevancy of the
evidence and that due diligence has been used to procure it, BUT, if the adverse party
admits the facts to be given in evidence, or even if he objects or reserves the right to
object to their admissibility, the trial shall not be postponed. 548
IF DUE TO ILLNESS OF PARTY OR COUNSEL
543

545
546
547
548
544
1.
May be granted, if it appears upon affidavit or sworn certification that the
presence of party / counsel at the trial is indispensable and that character of illness is
such as to render non-appearance excusable.549
WHAT IS THE ORDER OF TRIAL
1.
Subject to Section 2, Rule 31 on separate trials and unless the court orders for
special reasons, it shall be limited to the issues stated in the pre-trial order and shall
proceed as follows:
1.1
Plaintiff adduces evidence in support of his complaint
1.2
Defendant adduces evidence in support of his defense, counterclaim,

crossclaim and 3rd party complaint
1.3
Third party defendant, if any, shall adduce evidence of his defense,

counterclaim, crossclaim and 4th party complaint.
1.4
Fourth party, and so forth, if any, shall adduce evidence of the material
facts pleaded by them.
1.5
Parties against whom any counterclaim/ cross-claim has been pleaded

shall adduce evidence in support of their defense, in the order prescribed
by the Court.
1.6
The parties may then respectively adduce rebutting evidence, unless the
Court, for good reasons and in the furtherance of justice, permits them to
adduce evidence upon their original case.
1.7
Upon admission of the evidence, the case shall be deemed submitted for
decision, unless the court directs the parties to argue or submit
memoranda or any further pleadings.
TRIAL OF ISSUES
1.
The trial of issues shall be limited to the issues stated in the pre-trial order,
unless the court directs otherwise for special reasons.
2.
If several defendants or 3 rd party defendants and so forth, having separate
defenses appear by different counsel, the court shall determine the relative order of
presentation of their evidence.550
MAY THERE BE AN AGREEMENT UPON THE FACTS AND SUBMISSION OF THE
CASE FOR JUDGMENT WITHOUT INTRODUCTION OF EVIDENCE
549
550

1.
Yes, provided that the agreement be in writing.
2.
If the parties agree only on some facts, trial shall be held as to the disputed
facts551
3.
There cannot be a judgment based on stipulation of facts in legal separation,
annulment of marriage and declaration of nullity.
3.1
Note that in the same cases neither is there judgment by default, judgment
on the pleadings, summary judgment, judgment upon confession,
judgment upon compromise, judgment based on stipulation of facts.
WHAT ARE TO BE MADE OF RECORD

1.
All proceedings, including any statement made by the judge with reference to the
case, or to any of the parties, witnesses or counsel shall be made of record in the
stenographic notes.552
WHO IS TO RECEIVE EVIDENCE
1.
The judge is required to personally receive the evidence. But in default / ex-parte
or when parties agree in writing it may be delegated to the clerk of court who should be
member of the bar though he has no power to resolve objections to any question or
admission of exhibits . Such shall be resolved by the court upon submission of his
report and transcripts within 10 days from termination of the hearing. 553
CAN ACTIONS BE SUSPENDED
1.
Actions may be suspended as governed by the provisions of the Civil Code 554: (a)
if willingness to discuss a compromise is expressed by one or both parties (b) if it
appears that one of the parties, before the commencement of an action / proceeding,
offered to discuss a possible compromise but the other party refused the offer.555
RULE 31 CONSOLIDATION OR SEVERANCE
WHEN CAN CONSOLIDATION TAKE PLACE
1.
When actions involving a common question of law or fact are pending before the
court, it may order joint hearing or trial of any or all the matters in issue in the actions, it
551

553
554
555
Civil Code, Article 2030
552
may order all actions consolidated. Then it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs / delay 556
2.
The rationale for consolidation is to have all cases, which are intimately related,
acted upon by one branch of the court to avoid the possibility of conflicting decisions
being rendered.557
MAY THERE BE CONSOLIDATION ALTHOUGH ACTIONS ARE PENDING IN
DIFFERENT COURTS
1.
Yes, involving the consolidation of civil action with criminal action, if filed before
criminal action and trial has not yet commenced. 558
PURPOSE OF ALLOWING CONSOLIDATION
1.
The purpose of allowing consolidation is to avoid multiplicity of suits, guard
against oppression or abuse, prevent delay, clearing of dockets, simplify the work of trial
court, save unnecessary expenses / costs.
2.
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.
3.
A petition for the issuance of a writ of possession cannot be consolidated with an
action to annul the foreclosure notwithstanding the argument that the former case would
become groundless as the latter case is contesting the presumed ownership on which
the petition for a writ of possession is based. Strictly speaking the petition for the
issuance of a writ of possession is not a judicial process, it is a non-litigious process that
is summary in nature. In contract, the action for annulment of foreclosure is an ordinary
civil action and is adversarial in character. The right of the petitioner in the writ of
possession case will be prejudiced by the consolidation with the annulment of
foreclosure case.559
WHEN CAN SEPARATION TAKE PLACE AND WHAT DOES IT COVER
1.
Covers any claim, cross-claim, counterclaim or third party claim or any separate
issue or of any number of claims, cross-claims, counter claims, third party complaints,
or issues in furtherance of convenience or to avoid prejudice. 560
RULE 32 TRIAL BY COMMISSIONER
WHEN RESORTED TO
556

Philippine Airlines, Inc. vs. Zamora, 564 SCRA 50
558
Section 1, Rule 111 of the Rules on Criminal Procedure
559
PNB vs. Gotesco, GR 183211, June 5, 2009
560
557
1.
Trial by commissioners may be resorted to upon order of the court, which will
then refer any or all issues when:
2.
1.1
Parties agree in writing and the commissioner may either be agreed upon
or appointed by the Court
1.2
When parties do not consent, on courts own motion or upon application of

either party, if may be directed in the following: (a) Trial of an issue of fact
requires examination of a long account (b) The taking of an account is
necessary for the information of the court before judgment or for carrying
judgment / or order into effect (c) A question of fact, other than upon the
pleadings arises upon motion or otherwise, in any stage of the case, or for
carrying a judgment or order into effect. 561
The term commissioner may include a referee, an auditor or examiner 562
3.
A commissioner is designated or authorized by an order of reference which will
specify or limit his powers, direct him to report only on or upon particular issues or do or
perform particular acts, receive or report evidence only and fix date for beginning /
closing hearings and for the filing of the report.
3.1
He shall then have and exercise the power to: (a) Regulate the proceeding
before him (b) Do all acts and take all measures necessary or proper for
the efficient performance of his duties upon the order (c)Issue subpoenas
(d) Swear witnesses (e) Unless otherwise provided, rule upon the
admissibility of evidence563
3.2
The trial shall then proceed before the commissioner/s in all respects as it
would be held in court.
PROCEDURE
1.
Commissioner takes oath and be sworn to a faithful and honest performance of
his duties564
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 / counsel 565
561

563
564
565
562
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
adjournment566
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 / report567
5.
If witness refuses to obey a subpoena or give evidence. It shall constitute
contempt of the appointing court 568
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 given 569
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
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.570
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 commissioner571
9.
If the parties stipulate that the commissioners findings of facts shall be final, only
questions of law shall be thereafter considered. 572
9.1
Note that the findings of the commissioner are merely advisory and are
not absolutely binding upon the court.573
EXPENSES / COMPENSATION
566

568
569
570
571
572
573
Eternal Gardens Memorial Park Corporation v Court of Appeals, 282 SCRA 553
567
1.
They shall be reasonable as warranted by the circumstances and are to be taxed
as costs against the defeated party or apportioned as justice requires 574
WHEN REFERENCE TO COMMISSIONERS IS REQUIRED BY THE RULES
1.
Reference to commissioners is required in the following cases: (a) Expropriation
under Rule 67 to determine just compensation (b) Partition under Rule 69, when parties
cannot agree as to the manner of partition.
RULE 33 DEMURRER TO THE EVIDENCE

WHO FILES AND WHEN FILED
1.
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.575
EFFECTS OF FILING AND RESOLUTION
1.
If granted, the action is dismissed, but if appealed and reversed, he loses his
right to prevent evidence and judgment is rendered in favor of the plaintiff 576
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. 577
2.
If denied, defendant may present his evidence as it does not constitute a waiver
of right to do so.
574
2.1
The court should set a date for reception of the evidence of the defendant.
It should not proceed to grant the plaintiff relief. 578
2.2
The order of denial is an interlocutory order and is therefore not

appealable.

576
Quebral v Court of Appeals, 252 SCRA 353
577
Nicos Industrial Corporation v Court of Appeals, 206 SCRA 127
578
Northwest Airlines v. Court of Appeals, 284 SCRA 408
575
2.3
It may however be questioned by certiorari in case of grave abuse of

discretion.579
3.
It is an error on the part of the appellate court to order a remand, if dismissal is
elevated to it on appeal, it must decide on the evidence adduced by the plaintiff. 580
DISTINGUISHED FROM A MOTION TO DISMISS
1.
A motion to dismiss is usually filed before service and filing of an answer, while a
demurrer is made after the plaintiff rests his case.
2.
A motion to dismiss is based on several grounds, while a demurrer is based only
on the failure of the plaintiff to show a right to relief.
3.
A denial of the motion to dismiss will require the subsequent filing of an answer,
while the denial of a demurrer requires the subsequent presentation of evidence.
DISTINGUISHED FROM CRIMINAL CASES
1.
In both civil and criminal actions, the basis for both is the insufficiency of
evidence.
2.
In a civil action, dismissal by demurrer is by motion only, while in a criminal
action, dismissal by demurrer is upon the courts initiative or motion giving the
prosecution an opportunity to be heard.
3.
In a civil action, leave is not required prior to filing, while in a criminal action,
leave may / may not be obtained. If obtained, there is no waiver of right to present
evidence. If denied and if there is no leave, it is a waiver
4.
In a civil action, if granted, plaintiffs remedy is appeal, while in a criminal action,
if granted, there is no appeal as such will constitute double jeopardy.
RULE 34 JUDGMENT ON THE PLEADINGS
JUDGMENT ON THE PLEADINGS
1.
Can be had if the answer fails to tender an issue or otherwise admits the material
allegations of the complaint 581
1.1
579
There is no motu propio rendition of judgment as it is always by motion.
Katigbak v. Sandiganbayan, 405 SCRA 558

Radiowealth Finance Company v Del Rosario, 335 SCRA 288
581
580
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 complaint .582
2.1
An answer admits the material allegations when it expressly confesses the

truthfulness thereof or where it omits to deal with them all.
3.
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.
WHO MAY MOVE FOR JUDGMENT ON THE PLEADINGS
1.
Only the plaintiff in original complaint, or of the counter-claim, or of the cross
claim, or of the third party complaint may so move for judgment on the pleadings.
2.
When a party moves for a judgment on the pleadings, and the same is granted
by the trial court, he hereby waives presentation of evidence. 583
WHEN NOT ALLOWED
1.
Judgment on the pleadings is not allowed in cases of: (a) Declaration of nullity of
marriage (b) Annulment of marriage (c) Legal separation.
1.1
In these cases, the plaintiff is required to prove the material facts

regardless of whether the answer tenders an issue or not.
RULE 35 SUMMARY JUDGMENT

WHAT IS SUMMARY JUDGMENT
1.
Is a devise for weeding out sham claims or defenses at an early stage of the
litigation thereby avoiding the expense / loss of time involved in a trial.
1.1
Its very object is to separate what is formal or pretended in denial or

averment from what is genuine and substantial so that only the latter may
subject a suitor to the burden of trial.
1.2
This is also known as Accelerated Judgment584
WHO MAY MOVE FOR SUMMARY JUDGMENT AND WHEN

1.
582
Either plaintiff or defendant may move for a summary judgment:
Supra, Sections 8,9 and 11, Rule 8

Alfarero v. Sevilla, 411 SCRA 387
584
Monterey Foods Corporation v Eserjose, 410 SCRA 627, Puyat v Zabarte, 352 SCRA 738
583
2.
If plaintiff or a claimant in the 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 or false.585 .
2.1
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.
3.
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 586
3.1
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. 587
4.
In either case, the motion must be filed along with supporting affidavits,
depositions or admissions.
5.
The procedure for the filing and resolution of a motion for summary judgment is
as follows:
5.1
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.
5.2
The defendant/plaintiff may serve opposing affidavits, depositions or

admissions at least 3 days before the date of the hearing.
5.3
Court hears the motion.
6.
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.
6.1
If not, it will deny, set the case for pre-trial, then trial.
6.2
If filed by the defendant and is justified, the complaint is dismissed,

otherwise the case proceeds with the filing of answer or pre-trial is set and
conducted.
FORM OF AFFIDAVITS / SUPPORTING DOCUMENTS

1.
They shall be made on personal knowledge, setting forth such facts as would be
admissible in evidence and shall show affirmatively that the affiant is competent to
testify to the matters stated therein.
585

587
Excelsa Industries v Court of Appeals, 247 SCRA 560
586
1.1
Certified copies of all papers / parts thereof shall be attached and served
therewith.588
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.589
EFFECT OF THE RENDITION OF SUMMARY JUDGMENT
1.
The aggrieved party may appeal the summary judgment as such is final
judgment as defined by Section 1, Rule 41.
2.
If denied, it is not appealable as order of denial of motion is interlocutory.

2.1
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 A PARTIAL SUMMARY JUDGMENT

1.
There can be a partial summary judgment when the Court finds that a judgment
cannot be rendered upon the whole case or for all the reliefs because there are
controverted facts which require trial.
1.1
A partial summary judgment is not appealable and shall be taken together

with the judgment that a trial court will render after trial. Thus, it cannot be
executed.590
DISTINGUISHED FROM JUDGMENT ON THE PLEADINGS

1.
Summary judgment is distinguished from a judgment on the pleadings as follows:

a) A Judgment on the Pleadings is available when there is no genuine issue as
answer fails to tender an issue or otherwise admits material allegations, while
Summary Judgment is available when there is an apparent issue but is a
sham, fictitious or false
b) A Judgment on the Pleadings is based exclusively on the pleadings
(complaint / answer), while Summary Judgment is based not only on
pleadings but also on affidavits, depositions and admissions, showing that
except as to damages there is no genuine issue
588

590
589
c) A Judgment on the Pleadings can be filed only after an answer has been filed,
while in Summary Judgment, there may or may not be an answer
d) A Judgment on the Pleadings can only be had by the plaintiff, while in
Summary Judgment, either plaintiff or defendant may move for it
e) A motion for Judgment on the Pleadings is required to be served on adverse
party at least 3 days prior to the hearing, while a motion for Summary
Judgment requires service at least 10 days prior to the hearing
2.
Judgment on the Pleadings is a judgment on facts as pleaded, Summary
Judgment is a judgment as summarily proven by affidavits, depositions, admissions. If
an answer tenders an issue, there can be no Judgment on the Pleadings but there can
be Summary Judgment, if issue/s is later shown to be false, sham or fictitious.
RULE 36 JUDGMENTS, FINAL ORDERS, AND ENTRY THEREOF
WHAT IS A JUDGMENT
1.
A judgment is a final ruling by a court of competent jurisdiction regarding the
rights or other matters submitted to it in an action or proceeding. 591
2.
It is the courts official and final consideration and determination of the rights and
obligations of the parties.592
REQUISITES OF A JUDGMENT/FINAL ORDER
1.
The requisites of a judgment or final order are: (a) It must be in writing (b) It must
be personally and directly prepared by the judge (c) It must state clearly and distinctly
the facts and the law on which it is based (d) It must be signed by the judge (e) It
must be filed with the clerk of court.593
591
1.1
Note that a judge who has been reassigned can pen a decision as long he
is still an incumbent judge.594
1.2
A decision penned by the judge after his retirement cannot be validly

promulgated and cannot acquire binding effect. In the like manner, a
decision penned during his incumbency cannot be promulgated after his
retirement. When a judge retires, all his authority to decide a case and
write, sign and promulgate the decision has also retired with him. 595
Macahilig v. Magalit, 344 SCRA 838

46 Am Jur 2d, Judgments
593
594
ABC Davao Auto Supply v Court of Appeals, GR 113296, January 16, 1998
595
Nazareno v Court of Appeals, 378 SCRA 28
592
1.3
It is not necessary that the judge who pens the decision is the one who
heard and tried the case.596
2.
A decision that does not state clearly and distinctly the facts and law on which it
is based leaves the parties in the dark as to how it was reached and is especially
prejudicial to the losing party who is unable to pinpoint errors for review upon an appeal.
A decision without anything to support it is a patent nullity.597A void judgment has no
legal and binding effect, force or efficacy for any purpose. 598
2.1
There is no need though for a statement of all the facts and evidence
presented. What is required is that the factual and legal basis be distinctly
and clearly set forth.599
2.2
The rule is also applicable to the denials of a petition for review or of a

motion for reconsideration600 and the resolution of a motion to dismiss.601
2.3.
Resolutions of the Supreme Court denying petitions for review of the Court
of Appeals are not decisions within the purview of the Constitution 602,
neither are minute resolutions.603 When such is issued, it is understood
that the challenged decision or order, together with the findings of fact and
legal conclusions are deemed sustained. 604
3.
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.
4.
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. It contains only the
dispositive portion and reserves the making of findings in a subsequent judgment. This
shall have no effect.605
5.
A conditional judgment is one the effectivity of which depends on the occurrence
or non-occurrence of an event. Such a judgment is void because of the absence of a
disposition and cannot be executed.606
596
Serna v Court of Appeals, 308 SCRA 527, Citibank NA v Sabeniano, GR 156132, October 12, 2006
Miguel v JCT Group Inc, 453 SCRA 529
598
Guevarra v Sandiganbayan, 454 SCRA 372
599
Chan v Court of Appeals, 457 SCRA 502
600
Section 14, Article VIII, Constitution
601
Barrazona v RTC of Baguio, GR No. 154282, April 7, 2006
602
Novino v Court of Appeals, 8 SCRA 279
603
Commercial Union Assurance,Ltd. V Lepanto Consolidated Mining Company, 86 SCRA 79
604
Complaint of Rogelio Arrienda v Justices Puno, et al, 460 SCRA 1
605
Dizon v Lopez, AM-RTJ-96-1388, 278 SCRA 483
606
Pascua v Simeon, 161 SCRA 1, Cu Unjieng v Mabalacat Sugar Company, 70 Phil 384
597
5.1
Where the judgment is for a sum of money to be determined by another, it is an
incomplete judgment which cannot be executed. 607
PARTS OF A JUDGMENT
1.
A judgment has two parts: (a) body of the decision or the ratio decidendi, and (b)
the dispositive portion or the fallo. It is the latter that is subject to execution as it should
settle and declare the rights and obligations of the party, finally, definitively, and
authoritatively.608
1.1
In case of conflict, the fallo prevails, but if the inevitable conclusion from
the body is so clear that there is a mistake in the dispositive portion, the
body will prevail.609
1.2
An ambiguity in the judgment is best addressed by a motion for a

clarificatory judgment
WHEN IS JUDGMENT RENDERED

1.
Ordinarily after trial, except in judgment on the pleadings, summary judgment,
judgment by compromise, judgment based on stipulation of facts, judgment upon
confession, order of dismissal in instances when it considered as an adjudication on the
merits, judgment in cases covered by the Rules of Summary Procedure.
1.1
The periods for a court to render judgment is within 24 months from date
of submission for decision for the Supreme Court, within 12 months for
lower collegiate courts, within 3 months for all other lower courts. 610
1.2
Extensions may be obtained from the Supreme Court on account of a

heavy caseload or other reasonable excuse. Without any extension, a
delay in disposition is tantamount to gross inefficiency.611
2.
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. 612
DUTY OF THE CLERK OF COURT WHEN JUDGMENT BECOMES FINAL
1.
If no appeal or motion for reconsideration or new trial is brought within the time
provided, the judgment / final order shall forthwith be entered by the clerk in the Book of
Entries of Judgment.
607
DBP v. Tanada, 56 SCRA 470

LRTA v Court of Appeals, 444 SCRA 125
609
Poland Industrial Limited v. NDC, 467 SCRA 500
610
Article VIII, Section 15, Constitution
611
Arap v Mustafa, A.M. No. SCC-017, March 12, 2002
612
Castro v Malazo, 99 SCRA 164
608
1.1
The date of finality shall be deemed the date of entry and shall contain the
dispositive portion and signed by the clerk which a certificate that such
judgment / final order has become final and executory.613
1.2
Note that date of entry retroacts to date of finality. Hence, both occur
simultaneously by operation of law.
2.
Judgments that are final and executory can be corrected if they pertain to: (a)
clerical errors (b) nunc pro tunc, meaning then for now, entries or those intended to
show what the judicial action was but was then omitted from the records 614 (c) whenever
circumstances transpire after finality rendering its execution unjust 615 and (d) in cases of
special and exceptional nature as when facts and circumstances transpire which render
execution impossible or unjust, when necessary to harmonize the disposition with
prevailing circumstances.616
3.
Correction or amendment is also allowed if the purpose is to clarify an ambiguity
caused by an omission or mistake, judgment / final order.
4.
A compromise after finality of a judgment is allowed. The basis of the allowance
is the principle of novation, which is a mode of extinguishing an obligation. 617
5.
Petition for extraordinary relief- GR 167651, San Pablo vs. marina May 10, 2005
FOR WHOM JUDGMENTS MAY BE RENDERED

1.
They may be given for or against one or more several plaintiffs or for or against
one or more several defendants.
2.
Courts, when justice demands can require parties on each side to file adversary
proceedings as between themselves to determine their ultimate rights / obligations. 618
3.
In an action against several defendants, the courts if proper may render
judgment against one or more, leaving the action to proceed against the others. 619 This
is a several judgment. Example: Judgment against a surety for its admitted liability.
4.
Separate judgments may be rendered when more than one claim for relief is
presented, the court at any stage upon determination of the issues material to a
particular claim and all counter claims arising therefrom may render a separate
judgment disposing of the claim and proceeding with the others but, it may stay
613

Briones v Vasquez, 450 SCRA 482
615
Siy v NLRC, GR No. 158971, January 25, 2006
616
Industrial Timber Corporation vs. Ababon, GR No. 164518, January 25, 2006
617
Magbanua v. Uy, 458 SCRA 185
618
619
614
execution or enforcement until rendition of subsequent judgment/s and may prescribe

such conditions to secure benefit thereof to the party in whose favor the judgment is
rendered.620 An example is when causes of action have been joined
5.
Judgment against entity without juridical personality it shall set forth the individual
names / proper names if known of persons composing it.621
RULE 37 NEW TRIAL OR RECONSIDERATION

WHEN FILED
1.
A motion for new trial or reconsideration may be filed within the period for taking
an appeal.622
GROUNDS FOR A MOTION FOR NEW TRIAL
1.
Fraud, Accident, Mistake, Excusable Negligence which ordinary prudence could
not have guarded against and by reason of which the aggrieved party was probably
impaired in his rights.
620
1.1
Fraud should be extrinsic or collateral, which refers to such acts that

prevent 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.623 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 huma n agency, is an event which under the circumstances is
unusual or unexpected by the person to whom it happens. 624 Examples
are sickness of a party, lack of notice, when the same is sent to another
address.
1.3
Mistake refers to some unintentional act, omission, or error arising from

ignorance, surprise, imposition, or misplaced confidence. It pertains

622
623
Maestrado v Court of Appeals, 327 SCRA 678
624
Jarco Marketing v Court of Appeals, 321 SCRA 375
621
generally to mistake of fact, not of law. 625Examples are failure to answer /

act because he believed it unnecessary because of a compromise or other
document.
1.4
Excusable Negligence626 is an excusable omission to do something which

a reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affiants, would do; or the reasonable doing
of something which a prudent or reasonable man would not do. The failure
here is really that of the party or counsel, such as a non submission on
time because of distance traveled.
2.
Newly Discovered Evidence, which the aggrieved party could not with reasonable
diligence, have discovered or produced at the trial and which would probably alter the
result.
2.1
Hence, the requisites are: (a)Evidence is discovered after trial (b)Such

could not have been discovered and produced at the trial with reasonable
diligence (c) Evidence is material, not cumulative, corroborative, or
impeaching, and is of such weight that, if admitted, could probably change
the judgment.627
GROUNDS FOR MOTION FOR RECONSIDERATION

1.
The grounds for a motion for reconsideration are: (a) Award
of
excessive
damages (b) Insufficiency of evidence to justify the decision or final order (c) Decision /
final order is contrary to law
HOW FILED / CONTENTS
1.
It shall be made in writing stating the ground/s, written notice of which shall be
served by the movant on the adverse party.
2.
If the Motion for New Trial is based on Fraud, Accident, Mistake or Excusable
Negligence, it should be supported by affidavits of merit, which may be rebutted by
affidavits.
2.1
The requirement of an affidavit is essential because obviously a new trial

would be a waste of the courts time if the complaint turns out to be
groundless or the defense ineffective. 628
3.
If based on newly discovered evidence it should be supported by affidavits of the
witnesses by whom such evidence is expected to be given or by duly authenticated
documents which are proposed to be introduced as evidence.
625
Agan v Heirs of Sps. Andres and Diosdada Nueva, 418 SCRA 421
Mckee v Intermediate Appellate Court, 211 SCRA 517
627
Marikina Valley Development Corporation v Court of Appeals, 294 SCRA 273
628
Yap v Tanada, 163 SCRA 464
626
4.
If it is a 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.
4.1
If not, the motion is considered a pro-forma motion. It does not toll the
reglementary period of appeal.629
4.2
Note also that such a motion without notice of hearing and proof of service
has the same effect630
IF A MOTION FOR NEW TRIAL IS FILED, WHAT ENSUES

1.
Court may either deny or set aside the judgment or final order and grant a new
trial631
1.1
If denied, another motion may be filed, if it is based on a ground not

existing nor available, when the first motion has filed.632
1.2
Note that a motion for new trial is an omnibus motion, thus it should
include all grounds then available as those not included are deemed
waived.
2.
IF granted, the effects are (a) original order / judgment is vacated (b) the action
shall stand trial de novo (c) recorded evidence, insofar as material or competent to
establish the issues, shall be used at the new trial without need to for it to retaken. 633
IF MOTION FOR RECONSIDERATION IS FILED WHAT ENSUES
1.
Court may deny or amend its judgment / final order if it finds that excessive
damages are awarded, or that it is contrary to the evidence or the law 634
2.
If denied, no second motion for reconsideration is allowed of the judgment or final
order.
2.1
629
The filing of a second motion for reconsideration is a prohibited pleading.

Thus it does not toll the running of the reglementary period of appeal. 635
Marina Properties Corporation v Court of Appeals, 294 SCRA 273, Cledera v Sarmiento, 39 SCRA 552
Firme v Reyes, 92 SCRA 713
631
632
633
634
635
Hongria v Hongria-Juarde, 425 SCRA 504
630
3.
Note though that if the subject is not a judgment / final order or is an interlocutory
order which does not dispose of a case completely but leaves something more to be
done upon its merits, a 2nd motion for reconsideration may be allowed.
OTHER MATTERS PERTAINING TO SUBJECT MOTIONS
1.
The periods for resolving the motions are: (a) MTC / RTC within 30 days from the
time it is submitted for resolution 636 (b) Court of Appeals within 60 days after if declares it
submitted for resolution (c) Supreme Cour- no period is prescribed
2.
The denial of both motions is not appealable, it is the judgment or final order that
is appealable.637
3.
A motion for reconsideration is a pre-condition to an appeal in cases of (a)
habeas corpus in relation to custody of minors (b) annulment of marriage (c) declaration
of nullity of marriage, (d) legal separation.
RULE 38 RELIEF FROM JUDGMENT, ORDERS OR OTHER PROCEEDINGS
GROUNDS UPON WHICH IT IS TO BE BASED
1.
Judgment / final order is entered, or proceeding is thereafter taken against him
through fraud, accident, mistake or excusable negligence.
1.1
These grounds likewise support the petition when there is a failure to take
an appeal.
2.
The object to the petition is that the judgment, order, or proceeding be set aside
or that the appeal be given due course.
2.1
The petition must be verified.638
3.
The other ways by which a final and executory judgment may be set aside is by
Petition for Certiorari under Rule 65 and by Annulment of Judgment under Rule 47. 639
4.
The petition is premised on equity. It should therefore be granted only in
exceptional cases.
4.1
636
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.640

Barnes v Reyes, 411 SCRA 538
638
639
Arcelona v Court of Appeals, 280 SCRA 20
640
Torno v Intermediate Appellate Court, 166 SCRA 742
637
5.
It cannot be availed of if there is another remedy in law 641and is available only
against a final and executory judgment. 642
6.
Note though that if the case is covered by the Rules on Summary Procedure, a
petition for relief is a prohibited pleading.643
WHEN AND WHERE FILED
1.
It is to be filed within 60 days after he learns of the judgment final order /
proceeding but not more than 6 month after such judgment / final order was entered or
such proceeding taken.644
1.1
A few days after expiration of the 60 day period is not entirely fatal as long
as it is still filed within the 6 months period.645
1.2
But if it is a judgment by compromise, the 6 months period runs from date

of rendition, because a judgment upon a compromise is immediately
executory and considered to have been entered on the date it was
approved by the trial court.646
1.3
The 6 months period is reckoned from entry of judgment or final order, not
from its rendition.647 The phrase from learning means from notice of
judgment or final order648
2.
It is to be filed in the same case and in the same court where the judgment / final
order was entered or where proceeding is taken.
2.1
A petition for relief from judgment is not an available remedy in the

Supreme Court nor in the Court of Appeals. This is the rule
notwithstanding the statement that a party in any court may file a petition.
The phrase applies only to a Municipal Trial Court or a Regional Trial
Court.649
PROCEDURE
1.
Filing of verified petition accompanied by affidavits showing the ground and the
facts showing the petitioners good and substantial cause of action or defense, as the
case may be.
641
Alquesa v Cavada, Jr. 3 SCRA 428

Valencia v Court of Appeals, 352 SCRA 72
643
Sta Lucia Realty and Development Corporation v Court of Appeals, 343 SCRA 214
644
645
Mago v Court of Appeals, 303 SCRA 600
646
Manipor v Ricafort, 407 SCRA 298
647
Bayog v Natino, 258 SCRA 378
648
Prudence Realty and Development Corporation v Court of Appeals, 231 SCRA 379
649
Pucson Jr. vs. MRM Philippines, Inc. G.R. No. 182718, September 26, 2008
642
2.
Order issued requiring adverse party to answer within 15 days from receipt 650
2.1
If warranted a writ of preliminary Injunction may be issued as may be

necessary for the preservation of the rights of the parties, upon the filing
by the petitioner of a bond to indemnify the respondent for all damages
and costs incurred if the petition is dismissed or the petitioner fails on the
trial on the merits.
2.2
However, such injunction shall not operate to discharge or extinguish any

lien which the adverse party may have acquired upon property of the
petitioner.651
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.
4.1
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. 652
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.
4.2
If denied, the order is not appealable 653 but may be subject of certiorari
under Rule 65.
5.
Court hears the case as if a timely motion for new trial or reconsideration has
granted.
5.1
6.
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.654
Judgment is rendered and is appealable
DISTINGUISHED FROM A MOTION FOR NEW TRIAL

1.
They are distinguished as follows:

a) a motion for new trial is filed before judgment becomes final, while a petition for
relies if filed after a judgment becomes final
650

652
653
Supra, Section 1(b), Rule 41
654
651
b) a motion for new trial applies to judgments / final orders, while a petition for relief
includes proceedings
c) the grounds for a motion for new trial includes newly discovered evidence, while
a petition for relief is limited to FAME
d) a motion for new trial is filed within the period for perfecting an appeal, while a
petition for relief is filed within 60 days from knowledge but within 6 months from
entry of judgment
e) a motion for new trial if denied allows an appeal, while a petition for relief from
judgment does not allow an appeal
f) a motion for new trial is a legal remedy, while a petition for relief is a remedy in
equity
g) a motion for new trial requires no verification, while a petition for relief needs to
be verified.
RULE 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
EXECUTION DEFINED
1.
It is the remedy afforded for the satisfaction of a judgment. 655It is the fruit and end
of a suit.656
TWO KINDS OF EXECUTION
1.
Compulsory Execution is one which issues as a matter of right, on motion, upon
a judgment or order that disposes of the action or proceeding upon expiration of the
period to appeal, if no appeal is taken or is perfected.
655
1.1
It also issues when appeal is duly perfected and finally resolved.
1.2
It may be applied for in the court of origin, on motion of judgment obligee

submitting certified true copies of the judgment / final orders / orders
sought to be enforced and entry thereof, with notice to the adverse party.
There is no need for return of records.
1.3.
It may also be applied for in the appellate court, on motion in the same
case, when the interest of justice so requires, direct the court of origin to
issue the writ of execution in the event of the refusal of the court of origin
to issue the writ. 657
Cagayan De Oro Coliseum v Court of Appeals, 320 SCRA 731

Ayo v Violago Isnani, 380 SCRA 543
657
656
1.4.
A motion is required as there may be questions / disputes as to finality or

amounts to be stated in the writ.
2.
Discretionary Execution is one that is issued, on motion, of the prevailing party
for good reasons. This is also known as execution pending appeal or exceptional
execution 658
658
2.1
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. 659 The court, may, in its
discretion, order execution of judgment / final order even before the
expiration of the period to appeal.
2.2
If the trial court has lost jurisdiction, it is to be filed with the appellate court.
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.
2.3
The requisites of execution pending appeal are: (a) A motion by the

prevailing party with notice to the adverse party (b) There must be good
reason for execution pending appeal (c) 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. 660
2.4
Examples of good reasons are: proven insolvency of the debtor 661

deterioration of the goods 662, prevailing partys inability to enjoy the
decision, or its becoming illusory. In a recent case, old age was found to
be a good reason663
2.5
Stay of discretionary execution can be had upon approval by the proper

court of a sufficient supersedeas bond filed by the party against whom it is
directed conditioned upon performance of the judgment or 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 664 but,
the mere filing of a bond by a successful party allow execution pending
appeal nor constitute good ground.665

Philippine Nails & Wires Corpoation v Malayan Insurance Company, 397 SCRA 431
660
Jaca v Davao Lumber Company, 113 SCRA 107
661
Lao v Mencias, 21 SCRA 1021
662
Intramuros Tennis Club, Inc. v Court of Appeals, 341 SCRA 90
663
FEBTC v Toh, Sr. 404 SCRA 590
664
665
International School v. Court of Appeals, 309 SCRA 474
659
3.
There are judgments not stayed by appeal such as judgments in injunction, to
include a judgment dissolving it 666 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.
3.1
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 order
suspending, modifying, restoring or granting the injunction, receivership,
accounting or award of support.667
3.2
Judgments in Forcible Entry / Illegal Detainer, if against the defendant are

immediately executory.668 The same is true of a judgment by
compromise.669
4.
Separate, Several or Partial Judgments may executed under the same terms and
conditions as execution of a judgment / final order pending appeal. 670
4.1
If execution is granted by the judgment/final order is reversed on appeal or

totally / partially or annulled, on appeal or otherwise, the trial court, on
motion, may issue orders of reparation or restitution of damages as equity
and justice may warrant under the circumstances.671
4.2
The phrase or otherwise applies to reversal after a petition for relief has
been granted under Rule 38 and upon a favorable judgment in a petition
for annulment of judgment under Rule 47
5.
The Court of Appeals has no authority to issue immediate execution pending
appeal of its own decision. Discretionary execution applies only to a judgment or final
order of the trial court.672
WHAT ARE / OR MAY BE THE SUBJECT OF EXECUTION
1.
Only judgments or final orders, or one which disposes of the whole subject
matter or terminates a particular proceeding or action, leaving nothing to be done but to
enforce by execution that which has been determined.
666
ITC v PTA, 341 SCRA 90

668
669
Litton v Court of Appeals, 263 SCRA 40, AFPMBAI v Court of Appeals, 311 SCRA 143
670
Supra, Section 2 (b), Rule 39
671
672
Heirs of the late Justice JBL Reyes v Demetria, 374 SCRA 206
667
1.1
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
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.673
1.2
An exception for the need to await a final judgment or order is a judgment

for support pendente lite.674 The principal case in this instance still
continues.
1.3
As a rule, after a judgment becomes final and executory, execution

becomes a ministerial duty of the court.675
1.4
Execution may however be denied when: (a) judgment has been complied
with voluntarily 676(b) When the judgment has been novated (c) When a
petition for relief has been filed and a writ of injunction is granted (d) When
execution is sought more than five years from entry of judgment (e) When
execution is sought against exempt property (f) when the judgment is
conditional
HOW CAN A FINAL JUDGMENT / ORDER BE ENFORCED

1.
A final and executory judgment may be enforced by (a) By motion within 5 years
from date of entry of judgment (b) By action after the lapse of 5 years from date of entry
of judgment but before barred by statute of limitations, which is 10 years. This is known
as action to revive judgment.677
2.
The revived judgment may also be enforced by motion within 5 years from date
of entry, and thereafter by action before it is barred by the statute of limitations. The
purpose of the action is not to re-examine the issues as the cause of action is the
judgment itself and not the merits of the original action. 678
The proper venue of an action for revival of judgment depends on the determination of whether
the present action for revival is a real or personal action.679
673
Denso Philippines, Incorporated v IAC, 148 SCRA 280

675
Fideldia v. Songcuan, 465 SCRA 218
676
Cunanan v Court of Appeals, 25 SCRA 263
677
678
Laperal v Ocampo, 410 SCRA 339
679
Infante v Aran Builders, 531 SCRA 123 (August 24, 2007)
674
3.
Reconciling the actions upon a judgment under Article 1144 of the Civil Code,
which prescribes in 10 years, there is no conflict as the Rules of Court refer to the
manner of execution of the judgment.
3.1
Note that this is not applicable in land registration cases or other special
proceedings but only in civil actions.
4.
There are however instances when judgment / final order can still be enforced by
motion even after lapse of 5 years when the delay is caused or occasioned by the
actions of the judgment obligee or incurred for his benefit or advantage. 680
4.1
The liberal construction of the rule resulting in non inclusion of the period
of delay occasioned by the acts of the judgment obligee in the counting of
the period was resorted to as strict adherence to the letter of the law
would result in absurdity and manifest injustice. 681
ISSUANCE, FORM, CONTENTS OF A WRIT OF EXECUTION

1.
A writ of execution shall (a) Issue in the name of the Republic of the Philippines
from the Court that granted the judgment (b) State the name of court, case number,
title, and dispositive portion (c)
Require the sheriff or other proper officer to whom it is
directed to enforce the writ according to its terms.
2.
The terms or manner so provided is as follows: (a) execution be against property
of judgment obligor, to satisfy judgment with interest, out of his real or personal property
(b)
if against real or personal property, in the hands of personal representatives,
heirs, devisees, legatees, tenants trustees of the judgment obligor, to satisfy the
judgment, with interest, out of such property (c) if it be for sale of real / personal
property, to sell it, describing it, and apply the proceeds in conformity with the judgment,
the material parts of which shall be recited in the writ (d)if it be for delivery of the
possession of real / personal property, to deliver the possession of the same, describing
it, to the party entitled thereto and to satisfy any costs, damages, rents, profits covered
by the judgment out of the personal property of the person against whom it was
rendered, and if no sufficient personal property be present, out of real property (e) in all
cases, the writ shall specifically state the amount of interest, costs damages, rents,
profits due as of the date of issuance of the writ aside from the principal obligation under
judgment682
IF EXECUTION IS FOR SUMS OF MONEY
1.
Immediate payment on demand from judgment obligor payable in cash of
certified bank check payable to the obligee or any form acceptable to him plus lawful
fees to be turned over to the clerk of court of the court that issued the writ.
680
Camacho v Court of Appeals, 287 SCRA 611

Republic v Court of Appeals, 260 SCRA 344
682
681
1.1
If judgment obligee is not present to receive the amounts, it shall be

delivered by judgment obligor to the sheriff, turning in all amounts on the
same day to the clerk of court or if not practicable, to deposit in the
nearest government depository bank of Regional Trial Court in the locality,
then arrangements are then made for remittance to clerk of court issuing
the writ for delivery to the judgment obligee. In no case shall the sheriff
demand payment by check payable to him.
2.
Satisfaction by Levy, if not paid in cash, the sheriff shall levy on the properties of
judgment obligor of any kind / nature which may be disposed of for value and not
otherwise exempt from execution.
2.1
The obligor is given the option to immediately choose which property or

part thereof may be levied upon to satisfy judgment. If not, sheriff shall
levy on personal properties first, if any, then on real properties if
insufficient to answer for judgment.
2.2
Sheriff can only sell sufficient portion of the personal / real property levied
upon when there is more property then is sufficient to satisfy judgment, on
so much of it to satisfy judgment is to be sold. The conduct of the sale
shall be the same as that of execution for the sale of property.
2.3
The effect of a levy is that it shall create a 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.
Hence, the effect then on 3rd persons will be dependent on when their
liens / encumbrances, if any, was annotated or interposed. 683
2.4
If a 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.684
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.
683
684
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.685
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.686
EXECUTION FOR SPECIFIC ACTS687
1.
If conveyance, delivery of deeds or other specific acts are required, a 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.
IF EXECUTION IS FOR THE SALE OF REAL/PERSONAL PROPERTY
1.
The property is to be sold, describing it, and applying the proceeds in conformity
with the judgment.
2.
Notice must be given as follows: (a) 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, public market, for such a time as may be reasonable
depending on circumstances (b) Personal property posting of written notice in 3
public places for not less than 5 days (c) 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. 688
685

687
688
686
2.1
The contents of the 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
agreed upon: (a) 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 (b) If capable of manual delivery, where
personal property is located.
2.2
If there is a sale without notice, the officer is liable for punitive damages in
the amount of PHP 5,000.00 in addition to actual damages sustained by
injured person. If the notice is defaced or 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.689
3.
The manner of sale shall be by public auction. This applies also when property is
levied upon.
689
3.1
Sale is made to the highest bidder, to start at the exact time stated in the
notice.
3.2.
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. Like when other
debts due to be paid
3.3
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.
3.4
Personal property capable of manual delivery must be sold within view of

those attending and in such parcels so as to bring the highest price.
3.5
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.
3.6
No officer or his deputies, can be a purchaser, nor be interested directly or

indirectly in any purchase at such sale.690
3.7
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. Without an agreement officer may adjourn from
day to day if it becomes necessary.691

691
690
4.
3.8
When a purchaser refuses to pay , the 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.692
3.9
The judgment obligee can be a purchaser, 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. 693
3.10
If the judgment obligor pays the judgment before sale, the sale is
prevented by the payment required by execution and cost incurred
therein694
3.11
A third party claimant is one who claims title to, or right of possession of
the property levied upon by the sheriff. Note that there may be a 3 rd party
claimant in execution, preliminary attachment and replevin.
3.12
A third party claimant can file a 3rd party claim or a terceria by executing
an affidavit showing his title thereto, or right of possession over the
property being levied upon, stating therein the grounds of such title or
right, serving a copy thereof to the sheriff and judgment obligee. If filed,
sheriff is not obliged to proceed unless the judgment obligee files an
indemnity bond in an amount not less than value of the property. No action
on the bond may enforced by the third party claimant unless filed within
120 days from date of the filing of the bond. If bond is filed, a 3 rd party
claimant may vindicate his claim within the period or he may institute a
separate action to vindicate his claim but nothing also prevents the
judgment obligee from claiming damages in the same or separate action
against a 3rd party claimant who files a frivolous / spurious claim. Note that
if writ is issued in the name of the Republic of the Philippines, no bond is
required. Officer is to be represented by the Solicitor General, and if
damages are assessed, it is to be paid out of the National Treasury. 695
After a sale, a conveyance is to be made as follows:

4.1
692
Real Property a certificate of sale is given stating the description of the

property, price paid for each distinct lot / parcel, whole price paid and a
statement that the right of redemption shall or will expire one year from

694
695
693
date of registration of the certificate 696 making mention of the existence of

a 3rd party claim, if any. 697 Note: the requirement of mentioning a 3 rd party
claim, if any, applies also to conveyance over personal property.
696
4.2
The parties entitled to redeem are: (a) Judgment

obligor,
or
his
successor in interest, in whole or any part of the property, or (b) A creditor
having a lien by virtue of an attachment, judgment, mortgage on the
property sold or on some part thereof, subsequent to the lien under which
the property is sold. Such redeeming creditor is called a redemptioner.698
4.3
The judgment obligor / redemptioner may redeem the property from the
purchaser at any time within 1 year from registration by paying the amount
of purchase, plus 1% interest per month at the time of redemption,
together with the amounts of assessments / taxes paid at the purchase
and interest on the same at the same rate, and, if the purchaser be also a
creditor having a prior lien to that of the redemptioner, other than the
judgment, the amount of the lien plus interest.
4.4
Property so redeemed may be redeemed within 60 days after the last

redemption upon payment of the sum paid, w/ 2% interest thereon plus
taxes / assessments paid, and amount of liens held by redemptioner prior
to his own, and so forth.
4.5
Written notice however of redemption must be given to the officer who

made the sale and duplicate with the Registry of Deeds and if any
assessments / taxes / prior liens are paid, notice must also be given to
above parties otherwise, redemption can be effected without paying
taxes / assessments / liens. Note: Proof required of redemption under
Section 30
4.6
Proof of Redemption-A redemptioner must produce to the officer, or

person from whom he seeks to redeem, and serve with notice to the
officer, a copy of judgment or final order, certified by the clerk of court or
the mortgage / other lien, certified copy by the Register of Deeds / or
memorandum thereof and affidavit showing amount due on the lien. 699
4.7
If the Judgment Obligor redeems, -He must make all the payments
required to effect a redemption by a redemptioner. Thereupon, no further
redemption is allowed and he is restored to his estate. The person upon
whom redemption payment is made shall execute a Certificate of
Redemption after payment. Certificate is then filed with the Office of the
Registry of Deeds.700

698
699
700
697
701
4.8
Pending redemption, use of the real property shall remain with the 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. 701
4.9
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.702
4.10
If no redemption is made within one year from date of registration, the

purchaser is entitled to possession and conveyance or if so redeemed
whenever 60 days has elapsed and no other redemption is made and the
time for redemption has expired, the last redemptioner is entitled to
possession and conveyance but, in all cases the judgment obligor is
entitled to have the entire period of one year.
4.11
Officer shall execute the deed / or his successor in interest with the same
effect. Once done, the purchaser / redemptioner shall be substituted to
and acquire all the rights title and interest and claim of the judgment
obligor to the property as of the time of the levy. Possession shall then be
given unless property is held by a 3 rd party adverse to the judgment
obligor.703 Manner of effecting transfer of possession is by writ of
possession.704
4.12
If the sale is rendered ineffective as when the purchaser of real property

or his successor in interest fails to recover possession or is evicted
therefrom as a consequence of: irregularities in the proceedings
concerning the sale, judgment has been reversed or set aside pursuant to
a petition for relief,property is exempt from execution , or that 3 rd person
has vindicated his right to the property. He may on motion in the same
action or in a separate action recover from the judgment obligee the price
paid with interest, or so much thereof as has not been delivered to the
judgment obligor or he may on motion have the judgment revived in his
name, if a redemptioner for the whole price with interest, or so much
thereof as has been delivered to the judgment obligor. The judgment

703
704
Cometa v IAC, 151 SCRA 563, AutoCorp Group v Court of Appeals, 437 SCRA 678
702
revived shall have the same force and effect as an original judgment
would have as of the date of revived and no more. 705
4.13
If it involves personal property that is 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. 706
4.14
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. 707
EXECUTION IS FOR DELIVERY OR RESTITUTION OF REAL PROPERTY

1.
The 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 oblige otherwise the officer shall
oust all such persons thereon, with assistance from peace officers employing
reasonable means and place the judgment obligee in possession.
1.1
Any costs, damages, rents, profits shall be satisfied in the same manner
as a judgment for money.
EXECUTION IS FOR REMOVAL OF IMPROVEMENTS

1.
The 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.
EXECUTION IS FOR DELIVERY OF PERSONAL PROPERTY
1.
The officer shall take possession and forthwith deliver it to party entitled thereto
and satisfy any judgment for money as herein provided. 708
EXECUTION OF SPECIAL JUDGMENTS
1.
Performance of an act other than those enumerated in Section 9 and 10, a
certified copy of the judgment shall be attached to the writ of execution and served upon
party against whom it is rendered, or upon any person required thereby, or by law, to
obey the same.
705

707
708
706
1.1
If such party / person disobey, they may be punished for contempt. 709
2.
Examples of special judgments are judgments in cases for Injunction or Quo
warranto
WHAT ARE THE PROPERTIES EXEMPT FROM EXECUTION
1.
Except as otherwise expressly provided by law, the following property, and no
other, shall be exempt from execution:
a. The judgment obligors family home as provided by law, or the homestead
in which he resides, and land necessarily used in connection therewith;
b. Ordinary tools and implements personally used by him in his trade,
employment, or livelihood;
c. Three horses, or three cows, or three carabaos, or other beasts of burden,
such as the judgment obligor may select necessarily used by him in his
ordinary occupation;
d. His necessary clothing and articles for ordinary personal use, excluding
jewelry;
e. Household furniture and utensils necessary for housekeeping, and used
for that purpose by the judgment obligor and his family, such as the
judgment obligor may select, of a value not exceeding one hundred
thousand pesos;
f. Provisions for individual libraries and equipment of judges, lawyers,
physicians, pharmacists, dentists, engineers, surveyors, clergymen,
teachers, and other professionals, not exceeding three hundred thousand
pesos in value;
g. One fishing boat and accessories not exceeding the total value of one
hundred thousand pesos owned by a fisherman and by the lawful use of
which he earns his livelihood;
h. So much of the salaries, wages, or earnings of the judgment obligor for his
personal services within the four months preceding the levy as are
necessary for the support of his family;
i. Lettered gravestones;
j. Monies, benefits, privileges, or annuities accruing or in any manner
growing out of any life insurance;
709
k. The right to receive legal support, or money or property obtained as such

support, or any pension or gratuity from the Government;
l. Properties specially exempted by law.
2.
But no article or species of property mentioned in this section shall be exempt
from execution issued upon a judgment recovered for its price or upon a judgment of
foreclosure of a mortgage thereon.710
3.
Claims for exemption from execution of properties must be presented before its
sale on execution by the sheriff.711
WHAT HAPPENS TO EXECUTION UPON THE DEATH OF A PARTY
1.
It may issue or be enforced:

1.1
In case of death of judgment obligee, upon application of his executor or

administrator
1.2
In case of death of judgment obligor, against his executor, administrator, or

successor in interest, IF it be for recovery of real or personal property or
enforcement of a lien.
1.3
Death of judgment obligor after execution is actually levied upon any of his
property, the same may be sold for the satisfaction of the judgment
obligation and the officer must account to the executor or administrator for
any surplus, if any. 712
AS BETWEEN SEVERAL PERSONS AGAINST WHOM EXECUTION IS DIRECTED

1.
There is a right to contribution or reimbursement if: more than a due portion of
the judgment is satisfied out of the proceeds of the sale of the property of one of them,
or, one pays, without sale, more than his proportion.
1.1
If judgment is upon an obligation of one of them, as security for another,

and the surety pays the amount, or any part thereof, either by sale of
property or before a sale, he may compel repayment from the principal. 713
WHAT ARE THE OTHER REMEDIES OF THE JUDGMENT OBLIGEE IF EXECUTION

IS NOT CARRIED OUT OR JUDGMENT IS NOT SATISFIED
710

Gomez v Gealone, 203 SCRA 474
712
713
711
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.714
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 appear before the Court / commissioner and be
examined concerning the same.
2.1
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.
2.2
Notice of all proceedings may also be required by the court. 715
2.3
Obligor of judgment obligor may thereafter pay after writ of execution on

property has been issued, the amount of his debt or so much thereof as
may be necessary to satisfy the judgment and the sheriffs receipt shall
constitute sufficient discharge for the amount so paid or directed to be
credited by the judgment obligee on the execution 716
2.4
In relation to both remedies party or other person may be compelled to

appear by subpoena and failure to obey an order, subpoena or be sworn
or answer as a witness or subscribe to a deposition is punishable by
contempt. 717
3.
Order for application of property and income to satisfaction of judgment. it may
include his property or money due the judgment obligor, not exempt from execution, in
his hands or other person, corporation or juridical entity may be applied to satisfaction of
judgment subject to any prior rights over such property.
3.1
714
Also, if upon investigation of current income and expenses, the earnings

of judgment obligor are more than necessary for the support of his family,
the court may order that judgment be paid by monthly installments, failing
in which he may be punished for indirect contempt.718

716
717
718
715
4.
Appointment of a receiver for the property of the judgment obligor, it may also
forbid a transfer or other disposition of or interference with the property of the judgment
obligor not exempt from execution.719
4.1
Thereafter, there can be a sale by the receiver upon order of ascertainable

interest (or the real estate itself) of a judgment obligor in real estate in the
place where proceedings are had as mortgagor / mortgagee or otherwise
and if his interest can be ascertained without controversy, the receiver
may be ordered to sell and convey such interest or real estate or the
interest of the obligor therein. All proceedings to be approved by the Court
before execution of the deed.720
5.
In relation to the foregoing, if it appears that a person or corporation, alleged to
have property of the judgment obligor denies or claims an interest in the property
adverse to him, the court may: (a) order judgment obligee to institute an action against
such person or corporation for the recovery of such interest or debt (b) forbid a transfer /
disposition of such interest / debt within 120 days from notice of the order (c) punish
disobedience of such order as for contempt. The order may be modified or vacated at
any time by the court that issued it, or by the court in which the action is brought, upon
terms as may be just.721
WHAT IS TO BE DONE AFTER JUDGMENT IS SATISFIED
1.
Entry of satisfaction of judgment by the Clerk of Court in Court Docket and
Execution Book upon a return of the writ indicating satisfaction or admission of
satisfaction by the judgment oblige or counsel.722
2.
It can also be entered upon demand of judgment obligor when judgment is
satisfied in fact or upon notice / motion, the court may order entry without admission 723
EFFECT OF JUDGMENTS OR FINAL ORDERS
1.
The 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
719

721
722
723
720
administration shall only be prima facie evidence of the death of the

testator.724
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.725
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. 726
724
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 judgment on the merits rendered in the first
constitutes an absolute bar to the subsequent action.
1.2
Paragraph (c) is illustrative of what is known as conclusiveness of judgment,

when between the first case wherein judgment was rendered and the second
case wherein such judgment is invoked, there is only identity of parties, but
there is no identity of cause of action, the judgment is thus conclusive in the
second case, only as to the matters actually and directly controverted and
determined, and not as to matters merely involved therein. 727
1.3
CONCLUSIVENESS OF JUDGMENT, also known as PRECLUSION OF

ISSUES or COLLATERAL ESTOPPEL OR IMMUTABILITY OF JUDGMENTS
espouses that issues actually and directly resolved in a former suit cannot
again be raised in any future case between the same parties involving a
different cause of action.728Once a case is decided with finality, the
controversy is settled and the matter is laid to rest. The prevailing party is
entitled to enjoy the fruits of victory while the other party is obliged to respect
the courts verdict and comply with it.729
1.4
The doctrine of The law of the case states that whatever has once been
irrevocably established as the controlling legal rule of decision between the
Supra, Section 47 (a), Rule 39

Supra, Section 47 (b), Rule 39
726
727
Oropeza Marketing Corporation v Allied Banking Corporation, 393 SCRA 278
728
Tan v Court of Appeals, 363 SCRA 444
729
Siy v NLRC, GR No. 158971, August 25, 2005
725
same parties, whether correct on general principles or not, so long as the

facts on which the decision was predicated continue to be the facts of the
case before the court.730 This principle generally finds application in cases
where an appellate court passes on a question and remands the case to the
lower court for further proceedings. The question thus settled by the appellate
court becomes the law of the case upon a subsequent appeal. Consequently,
the court reviewing the succeeding appeal will not re-litigate the case but
instead apply the ruling in the previous appeal. 731
2.
Effect of a foreign judgment/final order: (a) If upon a specific thing, the judgment /
final order is conclusive upon title to the thing (b) If against a person it is presumptive
evidence of a right between the parties and their successors in interest by subsequent
title (c) 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.732
3.
Effect of judgment against a surety: When a judgment is rendered against a
party who stands as surety for another, the latter (principal) is also bound from the time
he has notice of the action or proceeding, and an opportunity at the suretys request to
join in the defense.733
APPEALS
PRELIMINARIES
1.
As a general rule, the remedy to obtain a reversal or a modification of judgment
on the merits is appeal. This is true even if the error ascribed to the court is lack of
jurisdiction over the subject matter, or exercise of power in excess thereof, or grave
abuse of discretion in the findings of law or fact set out in the decision. 734
2.
The right to appeal is not part of due process but is a mere statutory privilege that
has to be exercised only in the manner and in accordance with the provisions of law. 735
3.
Where the judgment or final order is not appealable, the aggrieved party may file
the appropriate civil action under Rule 65. An example is a judgment in summary
proceeding case under the Family Code.
4.
On appeal, a party may not change his theory of the case. 736 Hence, defenses
not pleaded in the answer may not for the first time be raised on appeal. 737
730
Boiser v NTC, 169 SCRA

RCPI v Court of Appeals, GR No. 139763, April 26, 2006
732
733
734
Association of Integrated Security Force of Bislig-ALU v Court of Appeals, 467 SCRA 483
735
Cu-Unjieng v Court of Appeals, 479 SCRA 594
736
737
Commissioner of Internal Revenue v Migrant Pagbilao Corporation, GR No. 159953, October 12, 2006
731
5.
4.1
A basic appellate rule is that the court shall not consider no error unless
stated in the assignment of errors.738
4.2
The exceptions to the rule are: (a) it is an error that affects jurisdiction over
the subject matter (b) it is an error that affects the validity of the judgment
appealed from (c) it is an error that affects proceedings (d) it is an error
closely related to or dependent on an assigned error and properly argued
in the brief, or (e) it is a plain and clerical error.
4.3
The Supreme Court is clothed with ample authority to review matters,

even if they are not assigned as errors on appeal if it finds that their
consideration is necessary in arriving at a just decision of the case. 739
Payment of docket fees is mandatory for the perfection of an appeal.

5.1
Without payment, the court does not acquire jurisdiction over the subject
matter of the action and the decision sought to be appealed becomes final
and executory.740
5.2
However, the rule is qualified: (a) the failure to pay appellate docket fees
within the reglementary period only allows discretionary dismissal, not
automatic dismissal of the appeal, (b) such power should be used in the
exercise of the courts sound discretion in accordance with the tenets of
fair play and with great deal of circumspection considering all attendant
circumstances.
RULE 40- APPEALS FROM THE MTC TO THE RTC

WHERE CAN AN MTC DECISION BE APPEALED
1.
A judgment / final order of the Municipal Trial Court is appealable to the Regional
Trial Court exercising jurisdiction over the area to which the Municipal Trial Court
pertains.
2.
In the appeal, the case title remains, but party appealing is designated as
appellant, while the adverse party is designated as the party-appellee. 741
WHEN CAN APPEAL BE TAKEN
738

Boston Bank of the Philippines v Manalo, GR No. 158149, February 9, 2006
740
Regalado v Go, GR No. 167988, February 6, 2007
741
739
1.
15 days after notice to the appellant. If record on appeal is required 30 days after
notice but the period can be interrupted by a motion for reconsideration or for new trial,
although no motion to extend time for its filing is allowed. 742
2.
Note the fresh period rule that is now applicable to an appeal under Rule 40,
Rule 41, Rule 43 and Rule 45, which allows a party intending to appeal another 15 days
from receipt of an order denying a motion for reconsideration or new trial to file an
appeal 743
HOW IS APPEAL TAKEN
1.
By notice of appeal indicating parties, judgment or final order appealed from
statement of the material dates showing timeliness of the appeal.
2.
By record on appeal, in special proceedings or cases allowing for multiple
appeals, like probate or partition. The record on appeal shall contain the following:
a. Full name of the parties stated in the caption including the judgment / final
order from which appeal is taken
b. In chronological order, copies of all pleadings, petitions, motions, and all
interlocutory orders as are related to the appealed judgment / final order
for proper understanding of the issue.
c. Data to show that appeal was filed on time
d. If issue of fact is to be raised, it should include reference the documentary
evidence by exhibit taken on the issue specifying the documentary
evidence by exhibit nos. or letters and testimonial evidence by the names
of the witnesses. If the whole of it is included, a statement to such effect is
sufficient.
e. If more than 20 pages include a subject index
744
3.
Note that the requirement for a Approval of record on appeal 745 the trial court
may approve it, if no objection is filed by the appellee or upon its motion / appellee
direct its amendment by the inclusion of omitted matters which are deemed essential to
the determination of the issue of law or facts involved in the appeal. If amendment is
ordered, which the appellant must comply with within the period stated, any extension or
if none, within 10 days, submitting the redrafted record for the approval of the Court.
Where both parties are appellants, they may file a joint record on appeal. 746
742

Neypes v Court of Appeals, GR 141524, September 14, 2005
744
745
746
743
4.
Regardless of the mode of appeal, the adverse party is to be furnished with a
copy.
WHEN PERFECTED
1.
Perfection is determined by Section 9, Rule 41:

1.1
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.
1.2
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.
2.
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) allow withdrawal of appeal. 747
2.1
This is power is known as residual jurisdiction. This is also known as

retained jurisdiction which is an extension of the original jurisdiction of the
court for certain specific purposes after perfection of the appeal but before
transmittal of the records or record on appeal.
3.
In both cases, docket fees and 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. 748
3.1
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.749
3.2
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. 750
4.
The record or 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.
747

749
Mactan Cebu International Airport Authority v Mangubat, 312 SCRA 466
750
Lopez v Court of Appeals, 75 SCRA 401
748
4.1
A copy of the transmittal shall be furnished the parties. 751
WHAT HAPPENS UPON TRANSMITTAL TO THE RTC

1.
Within 15 days from notice, appellant shall submit a memorandum briefly
discussing errors imputed to the lower court, copy furnished the adverse party. Within
15 days from receipt of appellants memorandum, appellee may file his own
memorandum. Failure of appellant shall be ground for dismissal of the appeal. Upon
filing / expiration, the case is submitted for decision on the basis of the record in
Municipal Trial Court and the memoranda submitted by the parties. 752
2.
When an appeal is taken from an order of the lower Court dismissing the case
without trial on the merits, the Regional Trial Court may affirm or reverse it as the case
may be:
2.1
2.2
In case it is affirmed and ground of dismissal is lack of jurisdiction over the

subject matter of the case, the Regional Trial Court, if it has jurisdiction,
shall try the case on the merits as if the case was originally filed with it. In
case of reversal, it shall be remanded back for further proceedings.
If it was tried on the merits, without jurisdiction, the Regional Trial Court on
appeal shall not dismiss the case if it has original jurisdiction, but shall decide the
case in accordance with Section 7, without prejudice to the admission of
amended pleadings and additional evidence in the interest of justice. 753
RULE 41 APPEALS FROM REGIONAL TRIAL COURTS

1.
An appeal may be taken from a judgment /final order that completely disposes of
a case, or a particular matter therein when declared by the Rules to be appealable but
no appeal can be taken from:
(a)
Order denying a motion for new trial or reconsideration. An appeal of
judgment/final order is remedy or certiorari under Rule 65. Note that this has been
omitted as of December 27, 2007754
(b)
Order denying a petition for relief from judgment or similar motion. Certiorari
under Rule 65 is remedy
(c)
751
Interlocutory order. Certiorari under Rule 65 or mandamus is remedy

753
754
A.M. No. 07-7-12-SC
752
(d)
Order disallowing or dismissing an appeal. Mandamus or petition for relief from
judgment is the remedy
(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 3 rd 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 65.755
2.
That declaration of presumptive death is not appealable by the state or the other
party.
2.1
Remedy of the spouse declared presumptively dead is to file affidavit of

reappearance.756
WHAT ARE THE MODES OF APPEAL OF A JUDGMENT OR FINAL ORDER OF A

REGIONAL TRIAL COURT757
1.
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
755
1.1
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 order 758 Note
also the application of the fresh period rule.
1.2
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 complaint 759

757
758
759
756
760
1.3
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. 760 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. 761
1.4
Perfection of Appeal is as discussed under Rule 40. 762 Subsequently, it is

the duty of the clerk of court of the lower court within 30 days after
perfection of all appeals to: (a) verify correctness of the original record /
record on appeal and make a certification as to correctness (b) verify
completeness of records transmitted to appellate court (c) If incomplete,
take necessary measures as may be required to complete the records,
availing of the authority that he or the court may exercise for this purpose.
(d) transmit the records to the appellate court. (e) then furnish parties of
his transmittal. 763
1.5
If efforts to complete fail, it shall be indicated in the letter of transmittal

which exhibits / transcripts are not included, the reasons why they were
not transmitted and the steps taken to make them available.
1.6
It is likewise required that the transcripts be transcribed 764 and that the
transmittal to include proof of payment of docket fees.
1.7
Prior to transmittal of record / record on appeal, the court may motu propio
or on motion to dismiss the appeal for having been take out of time or for
non payment of docket and other lawful fees within the reglementary
period.765 If transmitted already, the Court of Appeals may dismiss.
1.8
Other procedural requirements and disposition of the appeal are governed

by Rule 44:
1.9
The title of the case shall remain, party appealing shall be referred to as
appellant / adverse party-appellee. 766 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.767

Supra, Sections 6,7,8, Rule 41
762
763
764
Supra, Section 11 and 12, Rule 41
765
766
767
761
768
1.10
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. 768
1.11
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. 769
1.12
The Clerk of the Court of Appeals 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.770
1.13
Once done, Briefs are to be filed: (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.771 Where there are several parties,
each counsel representing one or more but not all may be served with 1
copy. If several counsels represent one party, service may be made on
any one of them.772 The contents of the appellants brief are: (a) subject
index (b) assignment of errors (c) statement of the case (d) statement of
facts (e) statement of issues (f) arguments (g) relief (f) if not by record on
appeal, an appendix, copy of judgment / final order appealed. 773
1.14
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. The contents of the appellees brief are: (a) subject index (b)
statement of facts, either a statement of acceptance or counter-statement
of facts (c) Arguments774
1.15
A Reply Brief may be filed by appellant within 20 days from receipt of the
Appellees Brief.775 No extension of time to file briefs is allowed except for
good and sufficient cause, and only if filed before expiration of the time

770
771
772
773
774
775
769
sought to be extended776 In lieu of briefs, memoranda may be required is

required in certiorari, prohibition, madamus, quo warranto, hebeas corpus
within a non-extendible period of 30 days from notice that all evidence is
attached to the record. Failure of appellant to file his memoranda is
ground to dismiss the appeal.777
1.16
Questions of law or fact may be raised in the appeal, whether or not a

motion for new trial has been filed and must within the issues framed by
the parties.778 As a rule, a party who deliberately adopts a certain theory
upon which the case is tried and decided by the lower court will not be
permitted to change his theory on appeal. Points of law, theories, issues,
and arguments not brought to the attention of the lower court need not be,
and ordinarily not be, considered by a reviewing court, as these cannot be
raised for the first time at such late stage. Basic considerations of due
process underlie this rule.779
1.17
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.780
2.
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
776
2.1
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.
2.2
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 for costs and before the
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. 781

778
779
BPI v Leobrera, 416 SCRA 15
780
People v. Mateo, 433 SCRA 640, AM No. 00-5-03-SC, October 15, 2004
781
777
782
2.3
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.782
2.4
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 continues to have RESIDUAL JURISDICTION until the same has
been given DUE COURSE.783
2.5
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
2.6
ONCE FILED, the Court of Appeals may: (a) Require the respondent to file
a comment, not a motion to dismiss, within 10 days from notice (b)Dismiss
the petition if found to be patently without merit, prosecuted manifestly for
delay, or questions raised therein are too unsubstantial to require
consideration.784
2.7
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.785
2.8
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.786

784
785
786
783
2.9
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.787
3.
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
3.1
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.
3.2
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.788
3.3
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 / resolutions of the Court of Appeals, the Sandiganbayan, a
Regional Trial Court, and other Courts whenever authorized by law.789
3.4
The TIME FOR FILING is 15 days from notice of the judgment, final /
order, or resolution or of denial of petitioners motion for new trial /
reconsideration. On motion and with full payment of docket fees and
deposit of costs, the Supreme Court on justifiable reason may grant an
extension of 30 days within which to file the petition.
Docket fees and proof of service of the petition on the lower court and
adverse party must accompany the filing of the petition. 790
787
3.5
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 verification791
3.6
UPON FILING, the Supreme Court can:

Manila Bay Club Corporation v Court of Appeals, 245 SCRA 715
789
790
791
788
792
(a)
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
(b)
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.792
3.7.
If given DUE COURSE, the Supreme Court can: (a) Require elevation of
the records / or specified portions thereof within 15 days from notice 793 (b)
Require filing of pleadings, briefs, memoranda or documents as it may
deem necessary within periods / conditions it may consider appropriate
and impose sanctions for non-filing / non-compliance or unauthorized
filing. This ALSO applies to a determination as to whether it should be
dismissed or denied.794 The RULE APPLIES TO BOTH CIVIL / CRIMINAL
ACTIONS, except in cases where penalty is death, reclusion perpetua /
life imprisonment.795
3.8
The exceptions to the general rule that only questions of law may be
raised in a petition for review are:(a) when the conclusion is a finding
grounded entirely on speculation, surmises, or conjectures; (b) when the
inference made is manifestly mistaken, absurd, or impossible; (c) where
there is a grave abuse of discretion; (d) when the judgment is based on a
misapprehension of facts; (e) when the findings of fact are conflicting; (f)
when the Court of Appeals, in making its findings, went beyond the issue
of the case and the same is contrary to the admissions of both appellant
and appellee; (g) when the findings of the Court of Appeals are contrary to
those of the trial courts; (h) when the findings of facts are conclusions
without citation of specific evidence on which they are based; (i) when the
facts set forth in the petition as well as in the petitioners main and reply
briefs are not disputed by the respondents; (j) when the finding of fact of
the Court of Appeals is premised on the supposed absence of evidence
but is contradicted by the evidence on record; and (k) when the Court of
Appeals manifestly overlooked certain relevant facts not disputed by the

794
795
793
parties and which, if properly considered, would justify a different

conclusion.796
4.
By Petition for Review under Rule 43 in a case decided by the Regional Trial
Court sitting as a commercial court.797
796
4.1
Applies primarily to appeals from the Court of Tax Appeals and other
quasi-judicial agencies to the Court of Appeals, but is not applicable to
judgments / final orders under the Labor Code. 798
4.2
The appeal can include questions of fact, law or mixed questions of law
and fact.799
4.3
The appeal shall be taken within fifteen (15) days from notice if the award,
judgment, and final order of resolution, or from the date of its last
publication, if publication is required by law for its effectivity, or of the
denial of the petitioners motion for new trial or reconsideration duly filed in
accordance with the governing law of the court or agency a quo. Only one
(1) motion for reconsideration shall be allowed. Upon proper motion and
the payment of the payment of the full amount of the docket fee before the
expiration of the reglementary period, the Court of Appeals may grant an
additional period of fifteen (15) days only within which to file the petition for
review. No further extension shall be granted except for the most
compelling reason and in no case to exceed fifteen (15) days. 800
4.4
All other procedural matters and requirements are similar to a Petition for
Review under Rule 42 EXCEPT that an appeal under this Rule shall not
stay the award, judgment, final order or resolution unless the Court of
Appeals deems otherwise.801
4.6
In summary judicial proceedings under the Family Code, there is no

reglementary period within which to perfect an appeal, precisely because
judgments rendered thereunder, by express provision of Section 247 of
the Family Code, are immediately final and executory.802 Appeal by notice
of appeal is erroneous. The Court of Appeals should have dismissed as it
had no jurisdiction to review on appeal. Per Justice Panganiban, Certiorari
under Rule 65 is the remedy of the State.
Martinez v Court of Appeals, 358 SCRA 38

A.M. No. 04-9-07-SC, September 14, 2004
798
799
800
801
802
Republic v Bernardez-Lorino, 449 SCRA 57
797
PROCEDURE BEFORE THE COURT OF APPEALS

RULE 46 ORIGINAL CASES FILED WITH THE COURT OF APPEALS
1.
Parties are to be designated as petitioner / respondent 803 and is to apply to cases
of Certiorari, Prohibition, Mandamus, Quo Warranto and to petitions for annulment of
judgment under Rule 47804
CONTENTS OF PETITION FILING EFFECTS OF NON COMPLIANCE
1.
Petitions filed before the Court of Appeals must contain the following: (a)
identification of the parties, a concise statement of matters involved, the factual
background of the case, and the grounds relied upon for the relief prayed for
(b)statement of material dates, and in a Rule 65 Petition, material dates are dates of
notice of judgment or final order, when a motion for new trial or reconsideration was
filed, if any, and when notice of denial was received (c) clearly legible duplicate originals
or certified true copy of the attachments (d)certification against forum shopping
(5)docket fees / deposit for cost.805
1.1
Failure to comply is sufficient ground for dismissal of the petitions.
2.
A certified true copy is one the certification of which is made by the proper clerk
of court or his duly authorized representative. 806
HOW DOES THE COURT ACQUIRE JURISIDICTION
1.
Jurisdiction over the person or the respondent is acquired by service of order or
resolution indicating initial action on the petition or voluntary submission to
jurisdiction.807
ACTION TO BE TAKEN BY THE COURT OF APPEALS
1.
The court may dismiss the petition outright with specific reasons OR require the
filing of a comment within 10 days from notice.
1.1
803
Only pleadings required to be filed may be filed. Other pleadings will

require leave of court.808

805
806
Paras v Baldado, 354 SCRA 141
807
808
804
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. 809
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.810
4.
809
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.811
4.2
Record of proceedings is made and a Resolution embodying actions shall

be issued812 which shall be binding upon parties and control subsequent
proceedings unless within 5 days from notice, it can be shown by valid
cause why it should not be followed or there is need for modifications to
prevent manifest injustice813
4.3
At its own instance or by motion, to hear the parties in oral argument on

the merits of the case or on any material incident and is limited to such
matters as the court may specify in its order or resolution. 814
4.4
In the conduct of oral arguments, unless authorized, only 1 counsel may

argue for a party. Duration, sequence and all related matters shall be as
directed by the Court.815
4.5
Motions are not set for hearing, and unless directed by the court, no
hearing or oral arguments shall be allowed in support thereof. The
adverse party may file objections within 5 days from notice. Upon
expiration of the period, it is submitted for resolution. 816

811
812
813
814
815
816
810
RULE 47-ANNULMENT OF JUDGMENT

1.
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 petitioner 817
1.1
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.
1.2
If he failed to avail of the other remedies through his own fault, he would
then benefit from his inaction or negligence.818
1.3
He must allege non availment of other remedies through no fault of the

petitioner, otherwise the petition will be dismissed. 819
1.4
Note that the correctness of the judgment is not in issue in a petition for
annulment of judgment.820
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. 821
3.
It is available only on grounds of: (a) Extrinsic Fraud but only when it was not
availed of or could have been availed of in a motion for new trial or petition for relief or
(b) Lack of Jurisdiction
3.1
There is extrinsic fraud when the unsuccessful party had been prevented
from exhibiting fully his case, by fraud or deception practice upon him by
his opponent, as keeping him away from the court, or where the defendant
never had knowledge of the suit, being kept in ignorance by the acts of the
plaintiff.822
4.
The period for its filing if based on extrinsic fraud is within 4 years from its
discovery, or if based on lack of jurisdiction before it is barred by laches or estoppel. 823
FILING / CONTENTS OF THE PETITION
1.
Filing is by verified petition alleging therein with particularity, the facts and the law
relied upon for annulment as well as supporting petitioners good and substantial cause
of action / defense, as the case may be. Containing (a) certified true copy of judgment /
817

Manipor v Ricafort, 407 SCRA 298
819
Ancheta v Ancheta, 424 SCRA 725
820
Republic v Heirs of Sancho Magdato, 340 SCRA 115
821
Malolos v Dy, 325 SCRA 827
822
Leonardo v ST Best, 422 SCRA 347
823
818
final order / resolution shall be attached to the original copy intended for the court (b)
affidavits of witnesses (c) certification against forum shopping 824
WHAT THE COURT OF APPEALS WILL DO UPON FILING
1.
If no substantial merit, it will be dismissed outright with specific reasons for such
dismissal.
2.
If prima facie merit be found, it shall be given due course and summons shall be
served on the respondent. If so, procedure in ordinary civil cases shall be followed but
reception may be referred to a member of the Court or a Regional Trial Court judge. 825
EFFECT OF JUDGMENT IN A PETITION FOR ANNULMENT
1.
It shall set aside the questioned judgment / final order / resolution and render the
same null and void, without prejudice to the re-filing of the original action in the proper
court .
1.1
However, where it is set aside by reason of extrinsic 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. 826
1.2
The prescriptive period for the re-filing 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.827
SCOPE OF RELIEF
1.
It may include award of damages, attorneys fees and other relief. If already
executed, restitution or other relief as justice / equity may warrant. 828
2.
It also applies to a petition for annul the judgment of an MTC but is to be filed
with the RTC and treated as an ordinary civil action. 829
2.1
All sections except Section 5 pertaining to dismissal or determination of

prima facie merit shall apply.
RULE 50 - GROUNDS FOR DISMISSAL BY THE COURT OF APPEALS

824

826
827
828
829
825
1.
In all cases that come before it, and besides on a finding that the case is without
merit, prosecuted for delay or issue is too unsubstantial to merit consideration, on
motion of the court or the appellee, it may dismiss the petition on the basis of:
1.1
Failure of record on appeal to show on its face that appeal was taken
within period fixed by the Rules.
1.2
Failure to file notice of appeal or record on appeal within period within the
period prescribed by the Rules.
1.3
Failure to pay docket fees as provided under Section 5, Rule 40 and

Section 4, Rule 41.
1.4
Unauthorized alterations, omissions, additions on record on appeal as

provided under Section 4, Rule 44
1.5
Failure of appellant to serve and file required number briefs or memoranda

within provided time by these Rules
1.6
Absence of specific assignment of errors or page references to the record

as required by Section 13, paragraphs(a),(c),(d), and (f) of Rule 44
1.7
Failure of appellant to take necessary steps for the correction or

completion of the records within time limited by the Court
1.8
Failure to appear at preliminary conference under Rule 48, or comply with

orders, circulars or directives of the Court without justifiable cause
1.9
The fact that order / judgment appealed from is not appealable. 830
DISMISSAL OF IMPROPER APPEAL

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.831
WITHDRAWAL OF AN APPEAL
830
831

1.
An appeal may be withdrawn as of right at any time before the filing of the
appellees brief.
1.1
Thereafter, only upon discretion of the Court.832
RULE 51 - JUDGMENT
WHEN SUBMITTED FOR JUDGMENT
1.
2.
In Ordinary Appeals:
1.1
Where no hearing on merits is held, upon filing of the last pleading, brief,
memoranda or expiration of period to file.
1.2
Where a hearing is held, upon termination of hearing or upon filing of the

last pleading, memoranda as may be required or permitted, or expiration
of period to file
In Original Actions or Petitions for Review

2.1
Where no comment is filed, upon expiration of the period to file comment
2.2
Where no hearing, same as 1.1
2.3
Where hearing is held, same as 1.2833
HOW JUDGMENT IS RENDERED

1.
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. 834
2.
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. 835
2.1
832
Note that in rendering judgment, harmless errors or those which do not

affect the substantial rights of the parties 836 or errors that are not assigned

834
835
836
833
will not be considered unless they affect jurisdiction, validity of judgment,

and of proceedings.837
2.2
Harmless Error Doctrine means that any error or defect which does not
affect substantial rights will be disregarded by the reviewing court or
tribunal. It is followed to deal with evidence improperly admitted during trial
wherein its damaging quality and impact to the substantial rights of the
litigant are examined. If deemed slight and insignificant, the error is
disregarded.838 It is not a ground for granting of a new trial or for setting
aside, modifying, or disturbing a judgment or final order unless the refusal
appears to the Court inconsistent with substantial justice.
3.
Judgments of the Court of Appeals in the exercise of appellate jurisdiction may
affirm, reverse, or modify the judgment or final order appealed from. It may also order or
direct a new trial to be held or that further proceedings be taken. 839 The decision must
state clearly and distinctly the findings of fact and conclusions of law on which it is
based, which may be contained in the resolution itself or adopted from those set forth in
the judgment, final order appealed from.840
PROCEDURE AFTER JUDGMENT
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.841
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.842
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.843
837

People v Teehankee, 269 SCRA 54.
839
840
841
842
843
838
RULE 52- MOTIONS FOR RECONSIDERATION BEFORE THE CA

1.
Judgments of the Court of Appeals can be the subject of reconsideration within
fifteen (15) days from notice thereof, with proof of service to the adverse party. 844
2.
No second motion for reconsideration will be entertained. 845
3.
It is to be resolved within sixty (60) days from submission for resolution 846 and
while pending, shall stay the execution unless for good reason, court directs
otherwise.847
RULE 53- MOTION FOR NEW TRIAL
1.
It can be filed at any time after appeal from the lower court has been perfected
and before the Court of Appeals loses jurisdiction, on the ground of newly discovered
evidence which could not have been discovered prior to the trial in the court below by
the exercise of due diligence and which is of such a character as would probably
change the result. The motion must be accompanied by affidavits showing the facts
constituting the grounds and the newly discovered evidence. 848
2.
The Court of Appeals shall then consider the evidence and that adduced at the
trial, to determine if it will grant or refuse a new trial, or make such order, with notice to
both parties, as to the taking of further testimony, either orally in court, by depositions,
or render such other judgment as ought to be rendered upon terms it may deem just. 849
If granted, the procedure shall be the same as that granted by a Regional Trial Court. 850
2.1
Motion should be resolved within 90 days from the date it is declared to be

submitted.851
OTHER MATTERS
RULE 54 INTERNAL BUSINESS
1.
Allotment of cases shall be among the different divisions for hearing and
decision.
2.
The Court of Appeals En Banc shall make proper orders or rules to govern
allotment, the constitution of such divisions, the regular rotation of justices, filling of
844

846
847
848
849
850
851
845
vacancies, and other matters. Such will continue in force and repealed or altered by it or
the Supreme Court.852
3.
A majority of the court shall constitute a quorum for sessions en banc and a
majority of the members present shall be necessary to pass a resolution. Three
members of a division shall constitute a quorum for sessions of a division and the
affirmative vote of three members shall be necessary for pronouncement of
judgment/resolution, which shall be reached in consultation among them before the
writing of the opinion by any member of the division. 853
RULE 55 PUBLICATION OF JUDGMENT/FINAL ORDER/RESOLUTIONS
1.
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. 854
1.1
The publication is to be prepared by the Reporter. 855
1.2
Those of the Supreme Court are called Philippine Reports, while those of
the Court of Appeals are called Court of Appeals Reports. 856
RULE 56 PROCEDURE IN THE SUPREME COURT

ORIGINAL CASES
1.
The cases cognizable by the Supreme Court are Certiorari, Mandamus,
Prohibition, Quo Warranto, Habeas Corpus, Disciplinary Actions against members of the
Judiciary and Attorneys, Cases affecting Ambassadors, Public Ministers or Consuls. 857
2.
In resolving the cases, applicable rules in the Court of Appeals are also
applicable in the Supreme Court.858
APPEALED CASES
852

854
855
856
857
858
853
1.
The only mode of appeal to the Supreme Court is by Petition for Review on
Certiorari, except in criminal cases where the penalty is death, reclusion perpetua, and
life imprisonment859
1.1
Except in appeal of criminal cases where penalty is death, reclusion

perpetua, life imprisonment, appeal by Notice of Appeal, will be
dismissed860
2.
If by certiorari from the Regional Trial Court to the Supreme Court, raising issues
of fact may be referred to the Court of Appeals for decision or appropriate action.
Determination of the Supreme Court as to whether or not there are issues of fact is
final.
3.
All appealed cases shall be governed by and disposed of in accordance with the
applicable provisions of the Constitution, Rule 45 (Petition for Review on Certiorari)
Rule 48 (Preliminary Conference), Sections 1 (When submitted) 2 (Who renders
judgment) and 5 to 11 ( Form to Execution) Rule 51, Rule 52 (Motion for
Reconsideration) and Rule 56.861
GROUNDS FOR DISMISSAL OF AN APPEAL
1.
An appeal may, motu propio or upon motion of respondent, be dismissed on

a. failure to take appeal within the reglementary period
b. lack of merit
c. failure to pay docket and lawful fees
d. failure to comply with requirements of proof of service and documents
e. failure to comply with any circular, directive or order of the Supreme Court
without justifiable cause
f. error in the choice or mode of appeal
g. that it is not appealable to the Supreme Court862
IF SUPREME COURT OPINION IS EQUALLY DIVIDED OR NECESSARY MAJORITY

CANNOT BE OBTAINED
1.
It will be deliberated further. If after deliberation, no decision is reached, the
original action commenced in the court shall be dismissed. If appealed, it shall stand
affirmed. If on incidental matters, it shall be denied. 863
PROVISIONAL REMEDIES
PRELIMINARIES
859

861
862
863
860
1.
Provisional Remedies are temporary, auxiliary and ancillary remedies available to
a litigant for the protection and preservation of his rights pending the main action.
1.1
They are issued in the form of writs or processes and they presuppose the
existence of a principal action, although the remedies of Injunction,
Receivership and Replevin have been allowed to exist as principal actions
in proper cases.
1.2
These remedies are to be granted by the court where the principal action
is pending. Hence, an MTC has the power to grant a provisional remedy.
The exception being support pendente lite in an action for support as this
is incapable of pecuniary estimation and is thus only within the jurisdiction
of an RTC.
2.
The purpose for resort to provisional remedies are: (a) preserve and protect
rights or interests while the main action is pending (b) secure the judgment (c) preserve
the status quo (d) preserve the subject matter of the action.
3.
The enumeration of provisional remedies is not exclusive as there is
jurisprudence to allow the court to exercise its equity jurisdiction when the law is silent,
obscure or insufficient. Examples are the grant of visitation rights or temporary custody
of a child864or deposit of amount paid in an action for rescission to prevent its
dissipation.865
RULE 57 PRELIMINARY ATTACHMENT
Rule 57 does not provide any lifetime for a writ of preliminary attachment unlike a writ of
execution (See: Roque vs. CA, 93 SCRA 540). What the law provides are enforcing the writ
without delay and making sheriffs return thereon without delay.
Preliminary attachment shall be discharged in any of the following instances:

1.
property attached is exempt from execution, hence, it is also exempt
from preliminary attachment (Sections 2 and 5, Rule 57);
2.
applicant has made cash deposit or filed counter bond in court (Section
12, Rule 57);
3.
attachment was improperly or irregularly issued or enforced (Section
13, Rule 57);
4.
attachment bond is insufficient (Section 13, Rule 57);
5.
attachment affidavit is defective (Section 13, Rule 57);
6.
attachment is excessive, but discharge is limited to the excess (Section
13, Rule 57); and
7.
judgment in the main case is rendered against the attaching party
(Section 19, Rule 57)
When the preliminary attachment is issued upon a ground which is at
the same time the applicants cause of action: ie., an action against a
party who has been guilty of fraud in contracting the debt or incurring
the obligation upon which the action is brought, the only way it can be
864
865
Tan v Adre, 450 SCRA 145

Reyes v Lim, 408 SCRA 560
dissolved is by a counter-bond. (FCY Const., Group Inc. vs. CA, 324

SCRA 270)
The merits of the complaint are not triable in a motion to discharge an attachment.
(CBTC vs. CA, 197 SCRA 663)
WHAT IS PRELIMINARY ATTACHMENT

1.
It is a provisional remedy issued upon order of the court where the action is
pending to levy upon the properties of the defendant therein, the same to be held
thereafter by the sheriff as security for the satisfaction of whatever judgment might be
rendered in favor of the attaching creditor.
2.
It can also extend to property of the defendant in the hands of 3 rd persons or
money owed by 3rd persons to the defendant. This is also known as garnishment.
3.
If judgment has become final and executory, there is a final attachment which is
also known as Levy on Execution
4.
It can be availed of at any time before entry of judgment.
DISTINCTIONS BETWEEN PRELIMINARY ATTACHMENT AND GARNISHMENT

1.
In Preliminary Attachment there are two parties, the plaintiff or proper party and
the defendant, while in Garnishment, there is an additional party in the person of the
garnishee. In the former, property is actually seized and a lien is created thereon, while
in the latter, there is no actual seizure.
GROUNDS FOR ATTACHMENT
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.
1.1
It is required that the movant be able to show that the defendant is about
to depart from the Philippines with intent to defraud creditors. 866
1.2
It cannot issue when the amount of money or damages is not specified. 867
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.
866
867
K.O. Glass Construction Co. Inc. v. Valenzuela, 116 SCRA 563

Peregrina v Panis, 133 SCRA 71
2.1
Examples are when an officer of a corporation who has control of its funds
will utilize the same for his personal use or when a person appropriates
the entire property knowing that a portion thereof does not belong to him.
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.
3.1
The property referred to may be either real or personal property.
3.2
Distinguishing it from replevin: the object is to attach real or personal

property belonging to the defendant to secure satisfaction of his judgment
for recovery, while in replevin, the object of the movant is the recovery of
his own property.
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.
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.868
5.
Action against a party who has removed or disposed of his property, or is about
to do so, with intent to defraud creditors.
5.1
Mere removal or disposition, by itself, is not ground for the issuance of a

writ of preliminary attachment, notwithstanding the insolvency of the
defendant or the absence of security for the satisfaction of any judgment is
alleged against the defendant.869
5.2
Where fraudulent disposal is put in issue, the parties should be given the
opportunity to prove their claims, or at the very least, the defendant should
be given the chance to show that he has not been disposing of his
property in fraud of creditors.870
6.
Action against a party who does not reside and is not found in the Philippines or
on whom summons may be served by publication.871
HOW APPLIED FOR
1.
Generally, by motion or is incorporated in the complaint, accompanied by an
affidavit, containing the following: (a) It is executed by the applicant / or some person
868
FCY Construction Group Incorporated v Court of Appeals, 324 SCRA 270

Peoples Bank and Trust Company v Syvels Incorporated, 164 SCRA 247
870
Adlawan v. Torres, 233 SCRA 645
871
869
who is aware or personally knows the facts (b) A sufficient cause of action exists (c)
That a ground/s as stated in Section 1 exists (d) There is no other sufficient security for
the claim sought to be enforced by the action (e) The amount due the applicant or value
of the property that he is entitled to recover, is as much as the sum for which the Order
is granted, above all legal counterclaims872
1.1
An ordinary creditor appointed as administratror of the estate of the

deceased cannot file a petition for preliminary attachment as that would
constitute him as a preferred creditor.873
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.874
WHEN ISSUED / BY WHOM
1.
Either ex parte or on motion with notice and hearing, by the court in which
action is pending, by the Court of Appeals or the Supreme Court and must require the
Sheriff to attach so much of the property in the Philippines of the party against whom it
is issued not exempt from execution as may be sufficient to satisfy the claim unless the
other party makes a deposit or gives a bond in an amount equal to that fixed in the
order, exclusive of costs.
1.1
Several writs may be issued at the same time to the sheriffs of the courts
of different judicial regions.875
2.
It is issued ex-parte when the ground is justified further by the fact that the
defendant might abscond or dispose of his property before the writ is issued. It can take
place even before he is summoned but note that it cannot be enforced unless it is
preceded or contemporaneously accompanied by service of summons, together with
complaint, application for attachment, affidavit, bond, order and the writ itself.
872
2.1
This is the Prior or Contemporaneous Rule.
2.2
Note that an Alias Summons belatedly filed cannot be deemed to have

cured the fatal defect in the enforcement of the writ of preliminary
attachment.876
2.3
The prior or contemporaneous rule does not apply when: (a) Summons
could not be served personally or by substituted service despite diligent
efforts (b) Defendant is a resident but temporarily out of the PhiIippines (c)

Gruenberg v Court of Appeals, 138 SCRA 471
874
875
876
Mangila v Court of Appeals, 387 SCRA 162
873
Defendant is a non-resident of the Philippines (d) It is an action in rem or

quasi in rem
BY WHOM / HOW ENFORCED
1.
By the sheriff, without delay and with all reasonable diligence

1.1
Note that Rule 57 does not provide any lifetime for a writ of preliminary
attachment unlike a writ of execution. 877 What the law provides for are the
enforcement of 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 the defendant makes a deposit or gives a
counter bond in an amount equal to the bond fixed by the court or to the value of the
property attached. 878
2.1
3.
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.879
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. 880
877
Roque v Court of Appeals, 93 SCRA 540

879
880
878
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 paid881
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.882
3.3
There can also be an examination of the listed persons to determine if

there are properties in their possession that may be attached. 883
4.
Sheriff shall also make a return without delay, containing a 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.884
5.
Property is to be held and disposed of in the following manner:

5.1
881
If judgment is recovered by the attaching party

(a)
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.
(b)
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. 885
(c)
Collecting from all persons having in their possession credits

belonging to the obligor or debts due him

883
884
885
882
(d)
If there be a balance, he proceeds to collect as upon ordinary

execution. If there be a surplus, it must be returned.
(e)
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.886
(f)
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. 887
A Report or Return of all proceedings must be filed with the court
and copies furnished all parties.888
5.2
If judgment is for adverse party

(a)
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.
(b)
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.
(c)
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.
(d)
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. 889
WHAT ARE THE REMEDIES OF A PARTY WHOSE PROPERTIES ARE ATTACHED

886

888
889
887
1.
Discharge the attachment by making a cash deposit or counter bond. 890 Note
that bond may be subject to recovery by attaching party;
1.1
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 a trial on the merits. Example:
action for money, property embezzled, party guilty of fraud in incurring the
obligation
2.
Discharge or set aside the attachment on the ground that it was improperly
issued or irregularly enforced, or bond is insufficient or what has been attached is
excessive, the discharge is only for the excess. 891
3.
Claim for damages on account of improper, irregular, or excessive attachment.
892
WHAT HAPPENS IF PROPERTY IS CLAIMED BY A 3RD PERSON

1.
Claim is to be initiated by affidavit.

1.1
Upon filing, the sheriff not under obligation to keep the property, unless
attaching party files a bond.
1.2
No claim for damages for the taking or keeping of the property may be
filed / enforced against the bond unless the action is filed within 120 days
from date of the filing of the bond. 893
RULE 58 PRELIMINARY INJUNCTION

1.
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. 894
2.
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 are specific performance. Obligation not to do, remedy is injunction.
2.1
890
An example is that provided for by Article 26 of the Civil Code that allows
an injunction against one prying into the privacy of another residence,
meddling with or disturbing the private life or family relations of another or
the enforcement of an easement of light and view.

892
893
894
891
PRIMARY PURPOSE OF INJUNCTION

1.
Is to preserve the status quo or the last actual, peaceable, uncontested status
which precedes the pending controversy.
WHO MAY GRANT
1.
Court where the action is pending. If pending in the Court of Appeals or the
Supreme Court, it may be issued by the Court or any member thereof. 895
GROUNDS FOR ISSUANCE
1.
The applicant is entitled to the relief demanded, and the whole or part of the relief
consists in restraining the commission / continuance of the act/s complained of, or in
requiring the performance of an act/s, for a limited period or perpetually.
2.
The commission / continuance / non performance of the act/s during litigation will
probably work injustice to the applicant, or
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.896
REQUISITES FOR ISSUANCE OF AN INJUNCTION
1.
The requisites are: (a) Existence of a right to be protected, and (b) Acts against
which the injunction is to be directed are violative of the right
2.
These must clearly appear in the allegations in the complaint, otherwise, it may
be ground for its outright denial for insufficiency, which is apparent in the application
itself or if already granted, may be dissolved. 897
MAY IT BE ISSUED EX-PARTE
1.
As a general rule, the issuance requires (a) a hearing (b) reception of evidence
with opportunity to cross (c) finding that prohibited acts are threatened to be committed
or that irreparable injury would be inflicted upon the applicant.
2.
If great/irreparable injury would result before then the Court by way of an
exception on non ex-parte issuance (a) can issue a Temporary Restraining Order for 20
days after a summary hearing or If it is of extreme urgency, it may issue ex-parte a 72
hour Temporary Restraining Order, within which period a summary hearing to determine
whether or not the same is to be extended for the full 20 day period must be held.
895

897
896
2.1
Note that within the 20 day effectivity period of the Temporary Restraining
Order, the court must order the party or person to show cause why the
injunction should not be granted, determine also whether or not the
preliminary injunction should be granted, and accordingly issue the order.
898
2.2
The lifetime of a Temporary Restraining Order is 20 days if issued by a

trial court, 60 days if issued by the Court of Appeals, and until further
orders if issued by the Supreme Court. Note that when the trial court omits
to state a period, the 20 day period is deemed incorporated in the order.899
2.3
A second Temporary Restraining Order issued by the Court of Appeals

after the expiration of the first period is a patent nullity.900
3.
A status quo order is not a temporary restraining order. It is more in the nature of
a cease and desist order, has no specified duration and does not specifically direct the
performance of an act. It lasts until revoked, may be the subject of an agreement, and
does not require the posting of a bond.
HOW OBTAINED
1.
A preliminary injunction or temporary restraining order is obtained upon (a) filing
of a verified application showing facts entitling the applicant to the relief demanded, (b)
unless exempted, filing of a bond in an amount fixed by the court, to the effect that
applicant will pay all damages that may be sustained if the court should finally decide
that applicant was not entitled thereto (c) if included in a complaint / initiatory pleading it
shall be raffled only after notice to and in the presence of the adverse party.
2.
In any event, notice shall be preceeded by or contemporaneously accompanied
by service of summons, together with affidavit and bond but such will not be applicable
if defendant / adverse party cannot be served personally / substituted service, is
temporarily absent or is a non-resident.
3.
The matter shall thereafter be acted upon only after all parties are heard in a
summary hearing, conducted within 24 hours after sheriffs return of service. 901
WHEN INJUNCTION WILL NOT ISSUE
1.
Under BP Blg. 227 amending the Labor Code, a court cannot grant injunctive
relief in cases growing out of a labor dispute as the said power is vested in the NLRC.
898

Bacolod City Water District v Labayen, 446 SCRA 110
900
Padilla v Asuncion, AM No. 06-44-CA-J, March 20, 2007
901
899
An exception is when the injunction is sought by a third person whose property is levied
upon to satisfy the liability of another.902
2.
Under RA 8735 and PD 1818, injunction does not lie against the execution or
implementation of government infrastructure programs, essential government projects,
including arrastre 903
3.
Under Section 55, RA 6657 of the Comprehensive Agrarian Reform Law,
injunction cannot issue against the Presidential Agrarian Reform Council or any of the
implementing agencies.
4.
As against the Asset Privatization Trust as taken over by the Privatization and
Management Office of the Department of Finance. 904
5.
As against a court of co-equal rank or decrees of a court with concurrent or
coordinate jurisdiction.905
6.
As against quasi-judicial bodies of co-equal rank as an RTC such as the Social
Security System or the SEC
7.
By the RTC as against the Intellectual Property Office, Commission on Elections
or Workmens Compensation Commission
8.
As against the collection of a national internal revenue tax, fee or charge
imposed by the NIRC906 or the Commissioner of Customs over seizure or forfeiture
proceedings907
9.
As against consummated acts or a judgment already executed 908
10.
To transfer possession or control over property when legal title is still in dispute or
when it has not yet been clearly established or there is a lack of clear and unmistakable
right on the part of the applicant.909
11.
To establish new relations between the parties 910
12.
When it disposes of the main case without trial as the grant of injunctive relief
assumes the proposition that petitioner must prove. 911
902
Penalosa v Villanueva, 177 SCRA 78

Philippine Ports Authority v Pier 8 Arrastre and Stevedoring, 475 SCRA 426
904
Section 31-A, Proclamation 50-A, EO No. 323, 2000
905
Ching v Court of Appeals, 398 SCRA 88
906
Filipino Metals Corporation v Secretary, Trade and Industry, 463 SCRA 616
907
Zuno v Cabredo, 402 SCRA 75
908
PNB v Adi, 173 SCRA 550
909
Cortez Estrada v Samut, 451 SCRA 275
910
Almeida v Court of Appeals, 448 SCRA 68
911
Levi Strauss v Clinton Apparelle, 470 SCRA 236
903
13.
To restrain a criminal prosecution912 except: (a) to afford adequate protection to
the constitutional rights of the accused; (b) when necessary for the orderly
administration of justice or to avoid oppression or multiplicity of actions; (c) when double
jeopardy is clearly apparent; (d) where the charges are manifestly false and motivated
by the lust for vengeance; or (e) where there is clearly no prima facie case against the
accused and a motion to quash on that ground has been denied. 913
14.
In applications for restraining order and injunction against the foreclosure of a
real estate mortgage on the ground that it has been paid or not delinquent, unless it be
verified and supported by evidence of payment.
14.1
If on the allegation that interest is unconscionable, the debtor must pay the
mortgagee at least 12% per annum on the principal obligation as stated in
the application for foreclosure, which shall be updated monthly while the
case is pending.
14.2
The bond shall be equal to the amount of the outstanding debt, and the
time for its effectivity shall apply as well to a status quo order.
GROUNDS FOR OBJECTION / DISSOLUTION

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. 914
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.
915
JUDGMENTS OR ORDERS IN INJUNCTION

1.
An order discharging an injunction is immediately effective.
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. 916
3.
Judgments eventually rendered may include damages against a party and
sureties. 917
912
Andres v Cuevas, 460 SCRA 38

Roberts vs. CA, 254 SCRA 307; Brocka vs. Enrile, 192 SCRA 183
914
915
916
917
913
4.
No injunction can issue against the acts of a co-equal court, except in a 3 rd party
claim where claimant vindicates his right by a separate action.
RESOLUTION OF THE MAIN CASE OR PETITION
1.
The trial court, the Court of Appeals, the Sandiganbayan, or the Court of Tax
Appeals that issued the writ of preliminary injunction against a lower court, board, officer
or quasi-judicial agency shall decide the main case or petition within a period of six (6)
months from the issuance of the writ.918
RULE 59 RECEIVERSHIP
WHEN IS A RECEIVER APPOINTED
1.
When it appears from a verified application, and as such other proof as the court
may require, that the party applying for the appointment of a receiver has an interest in
the property or fund which is the subject of the action or proceeding as such property /
fund is in danger of being lost, removed or materially injured unless a receiver be
appointed to administer and preserve it.
2.
When it appears in an action by the mortgagee for the foreclosure of mortgagee
that the property is in danger of being wasted, dissipated or materially injured and that
its value is probably insufficient to discharge the mortgage debt or that the parties have
so stipulated in the mortgage contract.
3.
When after judgment, to preserve the property during the pendency of an appeal,
or to dispose of it according to the judgment, or to aid in execution when the execution
is returned unsatisfied or the judgment obligor refuses to apply his property in
satisfaction of the judgment or otherwise carry the judgment into effect.
4.
Whenever in other cases, it appears that the appointment of a receiver is the
most convenient and feasible means of preserving, administering or disposing of
property in litigation.
WHO APPOINTS A RECEIVER
1.
The court where action is pending or the Court of Appeals, the Supreme Court or
a member thereof.
1.1
918
919
During appeal, the appellate court may allow the application for the
appointment to be filed in the court of origin, which can also decide on the
same to be subject to the control of said court.919
A.M. 07-7-12-SC
2.
A receiver of real or personal property, which is the subject of the action, may be
appointed by the court when it appears from the pleadings or such other proof as the
judge may require, that the party applying for such appointment has:
(a) an actual interest in it, and (b) that such property is in danger of being lost,
removed, or materially injured; or whenever it appears to be the most convenient and
feasible means of preserving or administering the property in litigation. 920
3.
A receiver is a person appointed by the court or by a quasi-judicial administrative
agency, in behalf of all the parties for the purpose of preserving and conserving the
property and preventing its possible destruction or dissipation, if it were left in the
possession of any of the parties. It is the duty of the receiver to administer the assets of
the receivership estate; and in the management and disposition of the property
committed to his possession, he acts in a fiduciary capacity and with impartiality toward
all interested persons.921
4.
A receiver is not an agent or representative of any party to the action.

4.1
He is an officer of the court exercising his functions in the interest of

neither plaintiff nor defendant, but for the common benefit of al the parties
in interest.
4.2
He performs his duties subject to the control of the Court, and every
question involved in the receivership may be determined by the court
taking cognizance of the receivership proceedings.
4.3
Thus, unauthorized contracts of a receiver do not bind the court in charge

of receivership. They are the receivers own contracts and not recognized
by the court as contracts of the receivership.922
WHAT ARE THE POWERS OF THE RECIEVER

1.
Subject to the control of the court, a receiver can: (a) Bring and defend actions
in his own name (b)Take and keep possession of the properties in controversy (c)To
receive rent (d)Collect debts, including power to compound and compromise them, to
pay debts (e)Make transfers (f) To divide money or other property (g) Other acts as
may be authorized by the court
2.
Funds though may only be invested by order of the court upon written consent of
all parties. No action may be filed by or against the receiver without leave of court to
prevent harassment.923
920
Commodities Storage & Ice Plant Corp. versus Court of Appeals, 274 SCRA 439
Arranza versus B.F. Homes, Inc., 333 SCRA 799
922
Pacific Mechandising Corp., versus Consolacion Insurance & Surety Co., Inc., 73 SCRA 564
923
921
3.
Should there be refusal / neglect to deliver property to a receiver it is
punishable by contempt and shall be liable for the money or value of the property, plus
damages sustained as a consequence of the refusal / neglect. 924
HOW APPLIED FOR
1.
By verified application.
1.1
More than 1 receiver may be applied for and appointed by the court.
1.2
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.925
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.
3.1
It may also be discharged if it is shown that appointment was obtained

without sufficient cause.926
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 court,
to the effect that he will faithfully discharge his duties and obey orders from the Court. 927
5.
Copies of bonds of the applicant and receiver or the 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.928
WHEN TERMINATED
1.
When the court, motu propio or upon motion, shall determine that the necessity
for a receiver no longer exists, it shall alter due notice, settle all accounts, direct delivery
924

926
927
928
925
of the funds / property in his possession to the person adjudged to be entitled to receive
them and order the discharge of the receiver from further duty.
2.
He is to be allowed compensation as circumstances will warrant to be taxed
against defeated party or apportioned as justice may require. 929
3.
Any judgment may include the amount, if any, to be awarded any party upon any
bond.930
RULE 60 REPLEVIN
The lessor in a lease with option to purchase, in choosing through replevin, to deprive the lessee
of possession of the leased equipment, waived its right to recover unpaid rentals on the said
leased items. The remedy provided by Article 1484 are alternative, not cumulative.931
WHAT IS REPLEVIN
1.
It is a form of a principal remedy and provisional remedy / relief.

1.1
It is also a mixed action partly in rem as far as the claim for recovery of
personal property and in persona as far as the claim of damages, the
object of which is recovery of possession of personal property applied for
at the commencement of the action or at any time before answer by the
party praying for recovery of personal property.932
HOW APPLIED FOR

1.
Filing of Affidavit containing the following: (a) that applicant is the owner of the
property claimed, particularly describing it, or is entitled to possession of the same
(b)that property is a wrongfully detained by the adverse party, alleging the cause of
detention according to the best of his knowledge, information or belief (c) that property
has not been distrained or taken for a tax assessment or payment of fine or seized
under execution, preliminary attachment or in custodia legis, or if so seized, it is exempt
from seizure / custody (d) actual market value not the probable value as declared by the
applicant. Should there be a dispute, it is to be resolved by the Court.
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
3.
Upon filing of the affidavit and bond, the writ of replevin shall issue requiring the
sheriff to forthwith take the property in custody.933
929

931
PCI Leasing and Finance Inc v Giraffe X Creative Imaging, Inc, 527 SCRA 405,(July 12, 2007)
932
933
930
3.1
In taking custody if concealed, he may demand delivery, if not delivered,

he may cause the building / enclosure to be broken.
3.2
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.934
REMEDIES FOR RETURN OF PROPERTY

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 known
as a redelivery bond executed to the applicant in double the value of the property as
stated in the applicants affidavit.
MANNER OF DISPOSITION BY SHERIFF
1.
If within 5 days after taking of the property, the adverse party does not object to
sufficiency of the bond / sureties or he objects and the court affirms its approval of the
bond or approves a new bond or if he requires return but his bond is objected to
(adverse party) and he does not forthwith file an approved bond the sheriff shall
deliver the property to the applicant, if for any reason it is not delivered, it must be
returned to the adverse party.935
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.
3.
934
2.1
In case of disagreement as to value, the court shall determine the same.
2.2
Note that no action on the bond may be enforced unless filed within 120
days from filing.
2.3
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.
2.4
If writ is issued in the name of RP, no bond is required and the sheriff is to
be represented by the Solicitor General and damages so adjudged are
paid out of the National Treasury. 936
The sheriff must make return within 10 days after taking of the property.937

936
937
935
4.
The judgment 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.
4.1
5.
Any amount awarded a party upon any bond shall be claimed, ascertained
and granted as provided by Section 20 of Rule 57. 938
A writ of replevin may be served anywhere in the Philippines.
RULE 61 SUPPORT PENDENTE LITE

WHEN FILED AND HOW
1.
At the commencement of the proper action or proceeding or at any time prior to a
judgment or final order a verified application may be filed by a party stating the
grounds for the claim and the financial conditions of both parties, accompanied by
affidavits, depositions, or other authentic documents in support thereof. 939
2.
It is also available in criminal cases when: (a) child is born to offended party
allegedly because of the crime (b) civil liability arising from the criminal action includes
support for the offspring (c) civil aspect has not been waived, reserved or instituted prior
to filing of criminal action.
2.1
This application may be filed successively by the offended party, her

parents, grandparents, guardian or the State in the corresponding criminal
case during its pendency.940
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.
1.1
The comment shall also be verified and accompanied by affidavits,

depositions, authentic documents.941
2.
Hearing shall then be conducted no more than 3 days after comment is filed or
the period expires.942
938

940
941
942
939
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.
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.
3.2
If denied, the principal case shall be tried and decided as early as

possible.943
HOW ENFORCED
1.
If adverse party fails to comply, the court shall, motu propio or on motion, issue
an order of execution without prejudice to his liability for contempt.
2.
If support be paid by a 3rd person, after due notice and hearing in the same case,
he may obtain a writ of execution to enforce his right of reimbursement against the
person ordered to provide support.944
RESTITUTION
1.
If upon judgment / final order The court finds that the person who has been
providing support is not liable therefor it shall order the recipient to return the amounts
paid plus interest from dates of actual payment without prejudice to the right of the
recipient to obtain reimbursement in a separate action from the person legally obliged to
give support.
1.1
Should the recipient fail to reimburse, the person who provided the same,
may, in a separate action, seek reimbursement thereof from the person
obliged to give support.945
SPECIAL CIVIL ACTIONS

RULE 62 - INTERPLEADER
WHEN PROPER
1.
Whenever conflicting claims upon the same subject matter are or may be made
against a person who claims no interest whatever in the subject matter, or an interest
which in whole or in part is not disputed by the claimants, he may bring an action
943

945
944
against the conflicting claimants to interplead and litigate their several claims among
themselves.946
2.
Examples of when interpleader is proper: (a) where a warehouseman is in
custody of goods being claimed by two or more persons who do not have the same
interest, or (b) two or more lessors are trying to collect from a lessee.
PROCEDURE:
1.
Upon filing of the complaint, the court shall issue an order requiring the
conflicting claimants to interplead with one another.
1.1
If the interest of justice requires, it may order the subject matter be paid or
delivered to the court.947
2.
Summons shall then issued to claimants, together with a copy of the complaint
and order.948
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.
3.1
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.
3.2
They may also file counter-claims, cross-claims, 3 rd party claims, and other
responsive pleadings.949
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.950
RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES
WHAT IS DECLARATORY RELIEF
1.
It is a special civil action brought before the Regional Trial Court only by a person
interested in a deed, will, contract or other written instrument, or whose rights are
affected by a statute, executive order, regulation or ordinance or any other government
regulation, before breach thereof, asking the court to determine any question of
946

948
949
950
947
construction or validity arising therefrom, and for a declaration of his rights or duties
thereunder.951
1.1
The list of what may properly be addressed by a petition for declaratory

relief is exclusive. Hence, an action for declaratory relief to determine the
import of a judgment or to resolve doubts as to citizenship is not proper.
1.2
Note that even if the subject is enumerated, the court will refuse to act if
the contract is clear and there is no doubt as to its meaning as there is no
need for construction or a declaration of rights.
2.
The similar remedies are the actions for reformation of instruments, to quiet title
or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil
Code . They may be brought as civil actions for declaratory relief.
3.
Note that it can be brought only before a breach / violation of the statute or
instrument.
3.1
If already brought and a breach / violation is committed before final

termination, it is converted into an ordinary civil action.
3.2
The parties may then file such pleading as may be necessary or proper.952
WHO ARE THE ALLOWED PARTIES

1.
All persons who have or claim an interest which would be affected by the
declaration shall be made parties and no declaration shall as except as otherwise
provided in these Rules prejudice the rights of persons not parties to the action.
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.953
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. 954
ACTION BY THE COURT
1.
Except in actions falling under the 2 nd paragraph of Section 1, the court, motu
propio, or on motion, may refuse to exercise the power to declare rights and to construe
instruments in any case where a decision would not terminate the controversy or
951

953
954
952
uncertainty that gave rise to the action, or in any case, where the declaration or
construction is not necessary or proper under the circumstances.955
RULE 64 REVIEW OR JUDGMENTS / FINAL ORDER OF THE COMELEC AND
COA
1.
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.
1.1
This rule was promulgated by the Supreme Court to implement Section 7

of Article IX-A of the 1987 Constitution which provides that any decision,
order or ruling of a constitutional commission may be brought to it on
certiorari within 30 days from receipt of a copy thereof, having interpreted
the same to refer to a certiorari petition under Rule 65. However, if it has
for its subject an interlocutory order, it has been submitted that the periods
provided for under Rule 65 will prevail over that provided by Rule 64.
1.2
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. 956
1.3
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. 957
RULE 65- CERTIORARI / PROHIBITION AND MANDAMUS
The exercise of judicial function is to determine what the law is, and what the legal
rights of paties are, with respect to a matter is controversy; and whenever an officer
is clothed with that authority, and undertakes to determine those questions, he acts
judicially. (The Mun.Council of Lemery, Batangas vs. The Prov. Board of Batangas,
56 PHIL. 260)
A quasi-judicial act or function is a judicial act or function performed by one who is
not a judge.
Without jurisdiction refers to lack of jurisdiction of the court, board, or officer from
the beginning.
955

Supra, Sections 1,2, and 3, Rule 64
957
956
Mandamus will lie:

a) in case any tribunal unlawfully neglects the performance of an act which the
law specifically enjoys as a duty;
b) in case any corporation, board or person unlawfully neglects the performance
of an act which the law enjoins as a duty resulting from an office, trust, or
station;
c) in case any tribunal, corporation, board or person unlawfully excludes another
from the use and enjoyment of a right or office to which such other is legally
entitled; and
d) there is no other plain, speedy and adequate remedy in the ordinary course
of law.
The legal right of the plaintiff (petitioner) to the thing demanded must be well
defined, clear and certain. The corresponding duty of the defendant (respondent) to
perform the required act must also be clear and specific. (Enriquez, Jr. vs. Bidin, 47
SCRA 183).
Mandamus lies only to compel performance of a ministerial duty but not to compel
performance of a discretionary duty. (Calderon vs. Sol. General, 215 SCRA 876)
The initial determination of what pleadings, documents or orders are relevant and pertinent to the
petition rests on the petitioner.958
WHAT IS CERTIORARI
1.
Special Civil Action against a tribunal board or officer exercising judicial or quasijudicial function which is alleged in a verified petition filed by an aggrieved party to have
acted without jurisdiction or in excess of its jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction.
1.1
There is no appeal, or any plain speedy and adequate remedy in the

ordinary course of law.
1.2
Praying for the judgment annulling / modifying the proceedings of such,

tribunal board officer, tribunal and granting such incidental reliefs as law
and justice may require.959
2.
Certiorari may prosper notwithstanding the presence of an appeal when: (a)
public welfare and the advancement of public policy dictate it (b) when the broader
interest of justice requires it (c) when the writs issued are null, (d) the questioned order
amounts to an oppressive exercise of judicial authority.960
DISTINGUISHED FROM PETITION FOR REVIEW ON CERTIORARI
958
Condes v Court of Appeals, 528 SCRA 339 (July 27, 2007)

960
Mallari vs. Banco Filipino Savings & Mortgage Bank, 563 SCRA 664, Leyte IV Electric Cooperative, Inc. vs.
Leyteco IV Employees Union, ALU, 537 SCRA 154
959
1.
Certiorari as distinguished from a Petition for Review on Certiorari:

(a)
In the former, the issue is whether the lower court acted without, in
excess of or with grave abuse of discretion, while in the latter the
issue is based on questions of law
(b)
In the former, it is addresses an interlocutory order prior to appeal

of a judgment when there is no appeal or any other speedy or
adequate remedy, while
the latter involves a review of
judgment/final order/ resolution on the merits
(c)
The former is filed within 15 days from notice of judgment / order,

while the latter is filed not later than 60 days from notice of the
resolution sought to be assailed or denial of a motion for
reconsideration
(d)
The former shall stay the judgment /final order or award, while the
latter does not stay the order or resolution unless a temporary
restraining order or preliminary injunction is issued
(e)
In the former, the petitioner/respondent are the original parties in

the case and the lower court is not impleaded, while in the latter,
the aggrieved party is the petitioner against the against the lower
court, agency and the prevailing party
(f)
The former does not require the filing of a motion for

reconsideration prior to filing, while the latter requires a motion for
reconsideration prior to filing
(g)
In the former, the court is exercising appellate jurisdiction, while in

latter, it is exercising original jurisdiction
(h)
The former can only be filed in the Supreme court, while the latter
may be filed with Supreme Court, Court of Appeals, or the Regional
Trial Court
EXCEPTIONS TO REQUIREMENT AS TO MOTION FOR RECONSIDERATION PRIOR

TO FILING A PETITION FOR CERTIORARI UNDER RULE 65
1.
The exceptions are:

(a) order is a patent nullity court a quo has no jurisdiction
(b) questions have been raised in certiorari have been duly raised and
passed upon by lower court
(c) urgent necessity for resolution
(d) where a motion for reconsideration will be useless
(e) petitioner is deprived of due process, there is extreme urgency for

relief
(f) in criminal case, relief from order of arrest is urgent, and grant of relief
by trial court is not probable
(g) proceedings in lower court are a nullity for lack of due process
(h) issue is purely of law or where public interest is involved.
WHAT IS PROHIBITION
1.
Special civil action against a tribunal, corporation, board, or person exercising
judicial, quasi-judicial or ministerial function which is alleged by an aggrieved party to be
acting or about to act without jurisdiction, in excess of its jurisdiction or with grave abuse
of discretion amounting to lack or excess of jurisdiction
1.1
There is no appeal or any plain, speedy and adequate remedy in the

ordinary course of the law
1.2
Praying that judgment be rendered commanding the respondent to desist

from further proceeding in the action or proceeding therein or otherwise
granting such incidental reliefs as law and justice may require. 961
DISTINGUISHED FROM CERTIORARI

1.
In certiorari the object is to correct the respondents acts by annulling
proceedings, while in prohibition it is to prevent the commission of an act or stopping
proceedings.
2.
In the former, the assailed acts have already been done, while in the latter the
assailed acts are about to be done or are being done.
3.
In the former, the respondent performs judicial or quasi- judicial, while in the
latter, the respondent performs judicial, quasi-judicial functions or ministerial functions.
WHAT CONSTITUTES JUDICIAL AND QUASI-JUDICIAL POWER
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.962
961
962

Municipal Council of Lemery, Batangas v Provincial Board of Batangas, 56 PHIL 260
2.
A quasi-judicial act or function is a judicial act or function performed by one who
is not a judge.
WHAT CONSTITUTES GRAVE ABUSE OF DISCRETION
1.
Capricious and whimsical exercise of judgment as may be equivalent to lack or
excess of jurisdiction.
WHAT IS MANDAMUS
1.
It is a special civil action against a tribunal, corporation, board, or officer alleged
in a verified petition filed by an aggrieved party to have unlawfully neglected the
performance of an act which the law specifically enjoins as a duty resulting from an
office, trust or station, or unlawfully excluded another from the use and enjoyment of a
right or office to which such other is entitled.
1.1
There is no plain, speedy or adequate remedy in the ordinary course of

the law
1.2
Praying that judgment be rendered commanding the respondent,

immediately or at some other time specified by the Court to do the act
required to be done to protect the rights of the petitioner, pay damages
sustained by reason of the wrongful acts.
2 ASPECTS OF MANDAMUS
1.
The aspects of Mandamus are: (a) respondent unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an
office, trust or station or (b) respondent unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled.
2.
The legal right of the plaintiff (petitioner) to the thing demanded must be well
defined, clear and certain. The corresponding duty of the defendant (respondent) to
perform the required act must also be clear and specific. 963
3.
Mandamus lies only to compel performance of a ministerial duty but not to
compel performance of a discretionary duty.964
3.1
In granting mandamus, respondent is commanded to perform the

particular act or required to be done and to pay the damages sustained by
the petitioner by reason of the wrongful acts of the respondent.
4.
An act is ministerial when officer or tribunal performs in a given state of facts, in
a prescribed manner in obedience to the mandate of a legal authority without regard to
963
964
Enriquez, Jr v Bidin, 47 SCRA 183

Calderon v Sol, 215 SCRA 876
the exercise of his own judgment. If given the authority to decide how and when, it is
discretionary.
5.
Mandamus does not lie to correct / enforce contractual obligations.
HOW DISTINGUISHED FROM CERTIORARI/PROHIBITION

1.
In Mandamus, the respondent is exercising ministerial power and he has
unlawfully neglected to perform it or excluded a party from occupying or enjoying the
privilege of an office to which he is lawfully entitled and the object is to compel action.
2.
In Certiorari, the respondent is exercising judicial or quasi-judicial powers without
jurisdiction or with grave abuse of discretion amounting to an excess or lack of
jurisdiction and the object is to correct.
3.
In prohibition , the respondent is exercising judicial, quasi-judicial or ministerial
powers and he is acting or about to act without jurisdiction or with grave abuse of
discretion amounting to an excess or lack of jurisdiction, and the object is to prevent
WHEN MAY IT BE FILED
1.
Not later than 60 days from notice of the assailed judgment, order or resolution.
1.1
1.2
But if a timely motion for reconsideration is filed, whether required or not,

the 60 days period shall be counted from notice of the denial of the
motion.965
An extension may be granted for compelling reasons but in no case to
exceed 15 days.
WHERE ELSE CAN BE FILED OTHER THAN THE COURT OF APPEALS

1.
The petition may be filed in the Supreme Court, the Regional Trial Court if relates
to an act / omission of a lower court, corporation, board, officer or person within its
territorial jurisdiction, or the Sandiganbayan, if in aid of its appellate jurisdiction
IT IS FILED WITH THE COURT OF APPEALS
1.
Whether or not in aid of its appellate jurisdiction, when it involves acts /
omissions of quasi-judicial body, unless otherwise provided.
PARTIES TO BE IMPLEADED
1.
In addition to the public respondents, the petition shall also join the person/s
interested in sustaining the proceedings and it shall be the duty of the private
respondent to appear and defend both in his behalf and that of the public respondents.
965
Supra, Section 4, Rule 65, as Amended by A.M. 00-2-03-SC
1.1
If costs are awarded, it shall be against private respondent only.
2.
Unless otherwise directed by the court, the public respondents shall not appear
or file an answer or comment. If elevated to a higher court the public respondents shall
be nominal parties, and unless directed shall not appear or participate in the
proceedings therein.966
ORDER TO COMMENT
1.
If petition is sufficient in form or substance, a comment will be required, not a
motion to dismiss.967
1.1
Orders expediting proceedings / temporary restraining order / injunctions

for the preservation of the rights of the parties may be issued but the filing
of the petition shall not interrupt the course of the principal case unless a
Temporary Restraining Order or Injunction is granted enjoining the public
respondent from further proceeding.968
ACTIONS THAT MAY BE TAKEN SUSBEQUENTLY

1.
Court may hear or require filing of memoranda. If it finds the allegations to be
true, it shall render judgment for the relief prayed for or to which petitioner is entitled.
2.
It may also dismiss if patently without merit, prosecuted manifestly for delay or
issues are too unsubstantial to require consideration. 969
SERVICE / ENFORCEMENT OF JUDGMENT
1.
Certified copy of judgment shall be served in such manger as the court may
direct and disobedience thereto shall be punished as contempt.
1.1
Execution may issue for any damages / cost in accordance with Section
1, Rule 39.970
RULE 66 -QUO WARRANTO

Quo warranto literally means by what authority. It is a special civil action to
determine the right to the use or exercise of public office or franchise and to oust
the holder from its enjoyment, if his claim is not well founded, or if he has forfeited
his right to enjoy the privilege. The action may be commenced for the Government
by the Solicitor General or by a public prosecutor; or by a person claiming to be
966

968
969
970
967
entitled to a public office or public position usurped or unlawfully held or exercised

by another may bring an action in his own name. Where a private person files the
action, he must prove that he is entitled to the controverted position, otherwise the
respondent has a right to the undisturbed possession of his office. (See: Castro vs.
Del Rosario, 19 SCRA 196; Tecson vs. Comelc, 424 SCRA 277)
DEFINED
1.
Quo Warranto is a special civil action brought by verified petition in the name of
the Republic of the Philippines against: (a) person who usurps, intrudes into or
unlawfully holds or exercises a public office, positions or franchise (b) public officer who
performs an act that constitutes a ground for forfeiture of his office (c) an association
that acts as a corporation within the Philippines without legally being incorporated or
without lawful authority to act.971
2.
It literally means by what authority. 972
WHO CAN BRING A QUO WARRANTO PROCEEDING

1.
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.973
2.
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. 974 If by complaint, a request
for indemnity for expenses and costs may be required to be deposited. 975
WHERE ACTION IS BROUGHT
1.
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. 976
WHEN FILED
1.
Within 1 year from accrual of the cause of action arising from ouster or right to
hold position
PARTIES AND CONTENTS OF PETITION
971

Tecson v Comelec, 424 SCRA 277
973
974
975
976
972
1.
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.
1.1
All persons who claim to be entitled may be made parties, and their
respective rights may be determined in the same action. 977
2.
A 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.978
CONTENTS OF JUDGMENT
1.
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. 979
1.1
It can also include a judgment for costs980
1.2
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. 981
2.
Damages if recoverable must be in another action filed within 1 year from entry of
judgment.982
DISTINGUISH BETWEEN QUO WARRANTO AND ELECTION PROTEST
1.
In Quo Warranto the issue is the disqualification / ineligibility of the proclaimed
candidate, in a Protest the issue is an irregularity in the election.
2.
If in the former, if the respondent is ineligible, the petitioner does not occupy the
position, while in the latter, the protestant can occupy the position if he obtains a
plurality of the votes.
DISTINGUISH BETWEEN QUO WARRANTO AS TO NATURE OF POSITION
977

979
980
981
982
978
1.
In quo warranto involving an elective post the issue is the eligibility of candidate
elected, while in that involving an appointive post the issue is the legality of
appointment.
2.
In the former, if the respondent is found ineligible, the 2 nd highest vote getter,
even if eligible cannot be declared elected, while in the latter, the resolution shall
determine who has been legally appointed and declare who is entitled to occupy the
office.
RULE 67 EXPROPRIATION
WHAT IS EXPROPRIATION
1.
The taking of private property for public purpose upon the payment of just
compensation. It is also known as exercise of the power of eminent domain.
2.
Public purpose which will justify expropriation of property generally means such
activity which will serve as convenience, safety, welfare, advantage, or benefit to the
entire community, and not to a particular individual, class or group of persons.
2.1
Public use is one which confers some benefit or advantage to the public.
It is not confined to actual use by the public. It includes the right of use by
the public, whether it is exercised by one or some or many members of
the public.
2.2
Public use contemplates indirect public benefit or advantage. 983 It must be

considered in its general concept of meeting a public need or a public
exigency.984 At present, whatever may be beneficially employed for the
general welfare satisfies the requirement of public use. 985
3.
The commencement of the action is necessary only when the owner refuses to
agree to sell his property or if he agrees to sell, he is not amenable to the price.
HOW EXERCISED
1.
Filing of a verified complaint which shall state with certainty the right and the
purpose of expropriation, describing the real / personal property sought to be
expropriated, joining as defendants all persons claiming / owning or occupying any part
thereof or interest therein.
1.1
983
Note that the subject can be either real / personal property.986
Estate of Salud Jimenez v PEZA, 349 SCRA 240

Manosca v Court of Appeals, 252 SCRA 412
985
Reyes v NHA, 395 SCRA 494
986
984
2.
If a local government unit intends to exercise the power of expropriation Section
19 of RA 7610987, it must comply with the following requisites: (a) An ordinance, not a
resolution988 must be enacted authorizing local chief executive to exercise the power of
eminent domain (b) the purpose is for public use, purpose or welfare or for the benefit of
the poor and landless (c)there is payment of just compensation, and (d) a valid and
definite offer has previously been made to the owner but was not accepted.
WHERE FILED
1.
Regional Trial Court, regardless of value as it is an action which is incapable of
pecuniary estimation.989
UPON FILING AND SERVICE OF SUMMONS
1.
The defendant may file: (a)A Manifestation that he has no objection or defense to
the action, or (b) An Answer stating all objections and defenses to the taking of the
property.
1.1
No counterclaim, cross claim or 3 rd party complaint shall be allowed in the

answer or any subsequent pleading.990
1.2
The non filing of an answer does not result in the defendant being
declared in default nor does it bar him from presenting evidence as to the
amount of compensation due and to share in the distribution of the award.
2.
The plaintiff may upon making a deposit in or with an authorized government
depository of an amount equal to the assessed value of the property for purposes of
taxation may take possession of the real property.
987
2.1
If it involves personal property, its value as provisionally ascertained. 991
2.2
Note that under Section 19 of the Local Government Code, the LGU can
take possession upon deposit with the court of fifteen (15%) percent of
the Fair Market Value based on the current tax declaration.
2.3
Under RA 8974,992 the government is required to make immediate

payment to the property owner upon filing of the complaint equivalent to
the market value as stated in the current tax declaration or the zonal value
Local Government Code

Beluso v Muncipality of Panay, Capiz, GR No. 153974, August 7, 2006
989
Barangay San Roque v Heirs of Pastor, 334 SCRA 127
990
991
992
An Act to Facilitate the Acquisition of a Right of Way Site for National Governement Infrastructure Projects and
Other Purposes
988
whichever is higher, plus the value of the improvements using the

replacement cost method.993
3.
The case now proceeds to a determination of the authority of the plaintiff to
expropriate.
3.1
Thereafter, the court may dismiss the petition or issue an order of

expropriation or order of condemnation.
3.2
The order of expropriation is appealable but shall not prevent the

determination of just compensation.
3.3
Since the order of expropriation has been entered, the plaintiff cannot
dismiss or discontinue the case except on terms that the court deems just
and equitable.994
4.
The right of plaintiff to enter into the property and appropriate shall not be
delayed by an appeal. However, 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.995
5.
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. 996 The receipt by the defendant of the compensation
does not strip him of the right to appeal as the rules provide that the plaintiff may
execute its judgment as soon as it is obtained.997
993
5.1
Just compensation is defined as the full and fair equivalent of the property
sought to be expropriated considering the cost of acquisition, current value
of like properties, actual or potential uses and in case of lands, their size,
shape and location.998
5.2
As a rule, the just compensation to be determined is that which obtains at

the time of the taking of the property or the filing of the action, whichever
comes first.999The rationale is that the owner must be compensated only
for what he actually loses, regardless of appreciation or depreciation
subsequent to taking possession or filing of the action.
5.3
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
Republic v Gingoyon, GR No. 166429, December 19, 2005

995
996
Supra, Sections 5,6,7, and 8, Rule 67
997
City of Manila v Batlle, 25 Phil 566
998
NPC v De La Cruz, GR No. 156093, February 2, 2007
999
Republic v Sarabia, 468 SCRA 142
994
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.1000
5.4
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.1001
5.5
Title will pass only upon full payment of the just compensation. 1002
5.6
Non payment does not entitle the landowner to recover possession.

However, if the government fails to pay just compensation within 5 years
from finality of judgment, the owners shall have the right to recover the
property.1003
5.7
When private land is expropriated for a particular public use and that
public use is abandoned, the land expropriated: (a) shall not revert if the
acquisition is in fee simple unconditional, or (b) is re-acquired if
expropriated with a condition that if the public use is abandoned or ended,
title reverts to former owner.1004
6.
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.1005
WHO PAYS FOR COSTS
1.
All costs, except that incurred by rival claimants, shall be paid by the plaintiff
unless an appeal is taken therefrom by the owner of the property and the judgment is
affirmed. Costs shall include the fees of the commissioners. 1006
RULE 68 FORECLOSURE OF REAL ESTATE
NATURE OF THE ACTION
1000

1002
Federated Realty Corporation v Court of Appeals, 477 SCRA 707
1003
Yujuico v Atienza, Jr., 472 SCRA 463
1004
Fery v Municipality of Cabanatuan, 42 Phil 28
1005
1006
1001
1.
It is an action affecting interest in real property and is hence, a real action. Thus
venue is where the real property or a portion thereof is located.
1.1
2.
If it involves several parcels of land in different provinces covered by a

single mortgage contract, it can be filed in any place where one of the
parcels is located and the judgment so rendered may be executed in the
other provinces.1007
It is also an action that is incapable of pecuniary estimation. 1008
WHAT SHOULD BE STATED IN THE COMPLAINT/PETITION

1.
The complaint in foreclosure of a mortgage or other encumbrance shall set forth:

(a) Date and due execution of the mortgage
(b) Its assignments, if any
(c) Names/residences of mortgagor/mortgagee
(d) Description of the mortgaged property
(e) Statement of the date of the note or other documentary evidence of the obligation
secured by the mortgage
(f) Amount claimed to be unpaid
(g) Name/residences of persons having or claiming an interest in the property
subordinate in right to that of the holder of the mortgage, all of whom shall be
made defendants.1009
WHAT COURT CAN DO

1.
The action proceeds like an ordinary civil action.
2.
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 the
adverse party to the court or judgment oblige within a period of not less than ninety (90)
days nor more than one hundred twenty (120) days from entry of judgment, and that in
case of default, the property will be sold at public auction. This period is known as the
Mortgagors Equity of Redemption. 1010
2.1
1007
Distinguishing Equity of Redemption from Right of Redemption:

(a)
Equity of Redemption is the equitable right of the
mortgagor to redeem, while Right of Redemption is the
statutory right of the mortgagor to redeem.
(b)
The former is available before auction sale, while the
latter is available after auction sale
(c)
The former is available only judicial foreclosure, while the
latter is available only in extra-judicial foreclosure, but by
El Hogar Filipino v Seva, 57 Phil 573

Russel v Vestil, 304 SCRA 738
1009
1010
1008
(d)
exception is allowed in judicial foreclosure when the

mortgagee is the PNB or a bank or a banking institution
The period for the exercise of the former is within 90
days but no more than 120 days from entry of foreclosure
judgment, while in the latter it is one year from
redemption is within one year from date of registration of
the sheriffs certificate of sale, except when the
mortgagor is a juridical person, in which case, the right to
redeem must be exercised until, but not after, the
registration of the certificate of sale with the applicable
register of deeds which in no case shall be more than
three months after foreclosure, whichever is earlier.1011
3.
If not paid, 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.
3.1
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.
3.2
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.
3.3
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.1012
3.4
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.
3.5
If with right of redemption, the annotation is to await final deed of sale

executed by Sheriff.1013
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
1011
Section 47, Philippine General Banking Law

1013
1012
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.1014
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.1015
6.
There can be a deficiency judgment if there is a balance. Upon motion, the court
shall render judgment against the defendant for the balance which may then be the
subject of execution.
6.1
If the 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. 1016
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 under Rule 39 are applicable insofar as they are not inconsistent. 1017
RULE 69 PARTITION
A partition agreement which was executed pursuant to a will that was not probated can not be
given effect.1018
OBJECT OF PARTITION
1.
Separate, divide and assign a thing that is held in common among those to
whom it may belong. The remedy may be availed of regardless of whether it involves
real or personal property, or both
WHO CAN FILE AND HOW
1.
Any person, having the right to compel partition of real estate may file, setting
forth therein the nature and extent of his title, adequate description of the property,
joining as defendants all other persons interested in the property.1019
2.
Partition and Accounting under this rule is in the nature of a quasi in rem
action1020.
1014

1016
1017
1018
Rodriguez v Rodriguez, 532 SCRA 642 (September 11, 2007)
1019
1020
Valmonte v Court of Appeals, 52 SCRA 92
1015
PROCEDURE
1.
If after trial, it finds for the plaintiff, it will order partition. This is known as the
order of partition
1.1
A final order decreeing partition and accounting may be appealed by the

party aggrieved thereby.1021
2.
Thereupon, if the parties agree, the parties may undertake the partition among
themselves by proper instruments. The court shall thereupon confirm the partition so
agreed by the parties. Such partition and order of confirmation shall then be recorded in
the registry of deed of the place where the property is situated.
1021
2.1
If they fail to agree, the Court shall appoint not more than 3
commissioners, commanding them to set-off to the plaintiff and each party
in interest such part and proportion of the property as the court will
direct.1022
2.2
Before discharging their duties, the commissioners shall take an oath that
they will faithfully discharge their duties, and in so doing they shall view
and examine the real property, shall hear the preferences of the parties,
determine the comparative value of the property, and shall set apart the
same to the parties in lots or parcels as will be most advantageous and
equitable, having due regard to the improvements, situation and quality of
the different parts thereof.1023
2.3
If the property cannot be divided without prejudice to the interest of the

parties, the court may order it assigned to one of the parties willing to take
the same, provided he pays to the other parties such amount as
determined by the commissioners to be equitable, unless one of the
interested parties asks that the property be sold instead. 1024
2.4
A report should thereupon be made by the commissioners and filed with

the court, which shall then give the parties 10 days within which to file heir
objections to the findings. No proceeding shall pass title to the property or
bind the parties until the court shall have accepted the report and
rendered judgment thereon. Note though that the court has the option to
accept or re-commit the matter to the commissioners.1025
2.5
If actual partition of the property is made, judgment shall state definitely

the metes and bounds and adequate description of the property, the
particular portion allocated to each party and its effect is to vest to each

1023
1024
1025
1022
party in the action in severalty the portion of real estate assigned to him. If
the whole property is assigned to one after payment to the others,
judgment has the effect of vesting in the party making payment the whole
of the real estate free from any interest of the other parties. If the property
is sold and proceeds divided, judgment has the effect of vesting the
property or portion sold in the purchaser free from any interest of the
parties to the action.1026Judgment may include recovery from the other of
just share of rents and profits received by the other from the real estate in
question1027 and costs equitably apportioned among the parties. 1028
2.6
This judgment is called the judgment of partition and may be the subject of
an appeal.
RULE 70- FORCIBLE ENTRY, ILLEGAL/UNLAWFUL DETAINER

WHAT IS FORCIBLE ENTRY AND UNLAWFUL DETAINER
1.
Forcible Entry is an action brought when a person is deprived of possession of
land/building by force, intimidation, stealth or threat.
2.
Unlawful Detainer is an action brought by a lessor, vendor, vendee or other
person against whom possession of land/building is unlawfully withheld after expiration
or termination of the right to hold possession, by virtue of a contract, express or implied.
2.1
Such action must be brought within one year after withholding such
possession. It is also known as an accion interdictal which seeks to
recover possession de facto or physical, actual or material possession.
3.
Note that it is the character or nature of the defendants possession which will
determine which of the two actions is appropriate.
4.
In addition to restitution of possession, damages and costs may also be
recovered.1029
UNLAWFUL DETAINER
DISTINGUISHED
OR FORCIBLE ENTRY OR ACCION INTERDICTAL
1.
From Accion Publiciana- which is a plenary action to recover right of possession
that is brought after one year from accrual of the cause of action in a Regional Trial
Court
1026

1028
1029
1027
2.
From Accion Reivindicatoria- which is an action to recover ownership, including
possession.
WHAT IS REQUIRED FOR THE ACTION TO BE FILED
1.
In Illegal Detainer ,unless otherwise stipulated, the lessor can proceed against
lessee only after demand to pay or comply with the conditions of the lease and to
vacate is made upon the lessee
2.
1.1
Or by serving written notice of such demand upon the person found within
the premises
1.2
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.1030
1.3
If the lease is on a month to month basis, demand to vacate is necessary

to terminate the lease upon expiration of the month so as to prevent tacita
reconduccion.1031 It is also necessary when one occupies upon tolerance
or permission without a contract as the occupant is bound by an implied
promise to vacate upon a demand.1032
1.4
If action is due to the termination of the lease due to the expiration of its
term, demand is not a prerequisite. 1033Neither is it required when there is a
stipulation dispensing with the need for demand.
No demand is required in Forcible Entry cases.
WHEN, WHERE FILED AND NATURE OF PROCEEDINGS

1.
Cases of Forcible Entry/Unlawful Detainer are to be filed within one year from
date of actual entry or date of last demand before the Municipal Trial Court and shall be
covered by the Rules on Summary Procedure, irrespective of the amount of damages or
unpaid rentals, unless they are covered by agricultural tenancy laws or otherwise
provided by law.1034
PROCEDURE TO BE FOLLOWED
1030

Yap v Cruz, 208 SCRA 692
1032
Sps. Llobrera v Fernandez, GR No. 142882, May 2, 2006
1033
Lanuza v Munoz, 429 SCRA 562
1034
1031
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.1035
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.
2.1
If not dismissed, it shall proceed to issue summons.1036
3.
If summons is issued, the defendant shall file his answer within 10 days from
receipt, serving a copy thereof to the plaintiff. It is an error on the part of the judge to
give the defendants 15 days to file an answer.1037
3.1
Affirmative or negative defenses not pleaded are deemed waived, except

lack of jurisdiction over the subject matter.
3.2
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. 1038
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.1039
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
preliminary conference unless inconsistent with the provisions of this Rule.
1035
5.1
The failure of the plaintiff to appear in the preliminary conference shall be

a cause for the dismissal of his complaint.
5.2
The defendant who appears in the absence of the plaintiff shall be entitled
to judgment on his counterclaim in accordance with Section 6 hereof. All
cross-claims shall be dismissed.
5.3
If a sole defendant shall fail to appear, the plaintiff shall be entitled to

judgment in accordance with Section 6 hereof. This Rule shall not apply
Supra, Section 4, Rule 70, Article II, Section 3 (a) and (b), Rules on Summary Procedure
Supra, Section 5, Rule 70, Article II, Section 4, Rules on Summary Procedure
1037
Santos vs. Tanciongco, 567 SCRA 134
1038
1039
1036
where one of two or more defendants sued under a common cause of

action who had pleaded a common defense shall appear at the
preliminary conference.
5.4
No postponement shall be granted except for highly meritorious grounds

and without prejudice to sanctions which the court may deem to
impose.1040
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.1041
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.1042
7.1
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. 1043
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 section
pertaining to referral to the Lupon for conciliation. The case may then be
dismissed without prejudice and may be revived upon showing of
compliance.1044 The filing of a motion to dismiss after an answer is filed does
not violate the rules. What is proscribed is a motion to dismiss that stops the
running of the period for the filing of an answer and cause undue delay. 1045
(b) Motion for a bill of particulars;
1040
1042
1043
1044
Supra, Section 12, Rule 70, Article IV, Section 18, Rules on Summary Procedure
1045
Heirs of Olivas v Flor, 161 SCRA 393
1041
(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of
trial; A motion for reconsideration can be filed when the case is already
pending before the appellate court. 1046 And a motion for reconsideration of
rulings or pertaining to other incidents, not of the judgment is allowed 1047
(d) Petition for Relief from Judgment
(e) Motion for extension of time to file pleadings, affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory
order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.1048
9.
A preliminary mandatory injunction may be granted by the court upon motion
presented within 5 days from the filing of the complaint to restore him in possession,
which should be decided by the court within 30 days from filing thereof 1049 and upon
motion of the plaintiff, within 10 days from perfection of an appeal to the Regional Trial
Court to restore him in possession if the court is satisfied that the appeal of the
defendant is frivolous or dilatory or that the plaintiffs appeal is prima facie
meritorious.1050
10.
The court shall then render judgment within 30 days after receipt of the last
affidavits and position papers, or the expiration of the period for filing the same.
10.1
1046
However, should the court find it necessary to clarify certain material facts,
it may, during the said period, issue an order specifying the matters to be
clarified, and require the parties to submit affidavits or other evidence on
the said matters within ten (10) days from receipt of said order.
Jakihaca v Aquino, 181 SCRA 67

Lucas v Fabros, 324 SCRA 1
1048
Supra, Section 13, Rule 70, Article IV, Section 19, Rules on Summary Procedure
1049
Supra, Section 15, Rule 70, Article II, Section 10, Rule on Summary Procedure
1050
1047
10.2
Judgment shall be rendered within fifteen (15) days after the receipt of the
last clarificatory affidavits, or the expiration of the period for filing the
same.
10.3
The court shall not resort to the clarificatory procedure to gain time for the
rendition of the judgment.1051
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 building 1052
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.1053
1051
12.1
While the general rule in ejectment cases that the recoverable damages
are fair rental value or reasonable compensation for the use or occupation
of real property, liquidated damages may be recovered if so stipulated. 1054
12.2
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
required1055
12.3
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 arrears1056, 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 10 th day of each
succeeding month or period.1057
Supra, Section 11, Rule 70, Article

1053
1054
Azcuna, Jr. v Court of Appeals,255 SCRA 215
1055
1056
Supra, Section 8, Rule 70 and De Laureano v. Adil, 72 SCRA 146
1057
1052
12.4
In conformity with Section 19, Rule 70 of the 1997 Rules of Civil

Procedure, it has been consistently ruled that if no supersedeas bond is
filed, the trial court, upon motion, may correctly order execution of
judgment.1058 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.1059
12.5
The filing of a notice of appeal and payment of the necessary docket does
not stay the execution of the decision.
12.6
The judgment of the appellate court shall however be subject to immediate

execution without prejudice to a further appeal 1060
PERSONS BOUND BY A JUDGMENT IN EJECTMENT CASES

1.
In an ejectment case, the judgment is binding on: (a) a sublessee as his right is
subsidiary to that of the lessee1061 (b) a guest or successor in interest, including
members of the family of the lessee, his servants and employees 1062(c) trespassers,
squatters or agents of the defendant, and (d) transferees pendente lite.
RULE 71 CONTEMPT
WHAT IS CONTEMPT
1.
Willful disobedience or open disrespect of the orders, authority, or dignity of a
court or judge acting in judicial capacity by disruptive language or conduct or by failure
to obey the orders of the court
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.
1.1
1058
This kind of contempt may be summarily adjudged and be punished by a

fine not exceeding PHP 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 PHP
Silverio v Court of Appeals, 407 SCRA 240

Chua v Court of Appeals, 286 SCRA 437
1060
1061
Dela Cruz v Roxas, 75 Phil 457
1062
Ariem v Delos Angeles, 49 SCRA 343
1059
200.00 or imprisonment not exceeding 1 day or both if it be by a Municipal

Trial Court.
1.2
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. 1063
1.3
It is direct contempt if a pleading contains derogatory, offensive or

malicious statements against a particular judge when submitted in the
same court where the judge is presiding. If submitted elsewhere, it is
indirect contempt.1064
2.
Indirect Contempt consists of (a) Misbehavior of an officer of a court in the
performance of his official duties or in his official transactions; (b) Disobedience of or
resistance to a lawful writ, process, order, or judgment of a court, including the act of a
person who, after being dispossessed or ejected from any real property by the judgment
or process of any court of competent jurisdiction, enters or attempts or induces another
to enter into or upon such real property for the purpose of executing acts of ownership
or possession, or in any manner disturbs the possession given to the person adjudged
to be entitled thereto; (c) Any abuse of or any unlawful interference with the processes
or proceedings of a court not constituting direct contempt under Section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly to impede, obstruct, or degrade
the administration of justice; (e) Assuming to be an attorney or an officer of a court, and
acting as such without authority; (f) Failure to obey a subpoena duly served; (g) The
rescue, or attempted rescue, of a person or property in the custody of an officer by
virtue of an order or process of a court held by him. But nothing in this section shall be
so construed as to prevent the court from issuing process to bring the respondent into
court, or from holding him in custody pending such proceedings. 1065
1063
2.1
This kind of contempt may be initiated motu propio by the court against
which the contempt was committed by an order or any formal charge
requiring the respondent to show cause why he should not be punished
for contempt. In other cases, it shall be commenced by verified petition
with supporting particulars and certified true copies of documents or
papers involved therein, and upon full compliance with the requirements
for the filing of initiatory pleadings in the court concerned.
2.2
If the charges are related to the principal action pending before the court,
the petition shall so allege such fact but it shall be docketed, heard and
decided separately, unless the court in its discretion orders consolidation
of the charge and principal action for joint hearing and decision. 1066

Ang v Castro, 136 SCRA 453
1065
1066
1064
2.3
The charge shall be filed in the Regional Trial Court if the contempt is
committed against it or a court of equal or higher rank or against an officer
appointed by it.
2.4
If against a lower court, it may be filed in the Regional Trial Court in the
place where the lower court sits or in such lower court, subject to appeal
to the Regional Trial Court.1067
2.5
This kind of contempt is punishable by a fine not exceeding P 30,000.00

or imprisonment not exceeding 6 months or both, if committed against a
Regional Trial Court. If against a Municipal Trial Court, by a fine not
exceeding P 5,000.00 or imprisonment not exceeding 1 month. If it
consists in a violation of a writ of injunction, TRO or status quo order, he
may also be ordered to make complete restitution. A writ of execution may
be issued to enforce a fine. 1068 If it consists in refusal or omission to do an
act within his power to perform, he may be imprisoned by order of the
court until it is performed.1069
2.6
A judgment for indirect contempt is appealable to the Regional Trial Court,

but execution shall not be suspended without the filing of a bond. 1070
2.7
An order dismissing a contempt charge or exoneration from such, is not

appealable.1071
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 hearing of
the charge, he may be ordered arrested and the bond forfeited. 1072
2.
If already imprisoned, the court may discharge the respondent if public interest
will not be prejudiced by the release. 1073
APPLICABILITY OF THE RULE
The rules apply to persons, entities, bodies or agencies exercising quasi-judicial powers
or shall have suppletory effect to their rules. The RTC of the place where the contempt
is committed shall have jurisdiction.1074
1067

1069
1070
1071
In Re, Mison, Jr, 33 SCRA 30
1072
1073
1074
1068
DEFINING CRIMINAL AND CIVIL CONTEMPT

It is criminal contempt when the purpose is to vindicate the authority of the court and
protect its outraged dignity. It is civil contempt when there is failure to do something
ordered by the court to be done for the benefit of another party.1075
SALIENT PORTIONS OF KATARUNGANG PAMBARANGAY LAW
SCOPE OF APPLICATION
1.
All disputes will require conciliation.
2.
The exceptions are the following: (a) where one party is the government or any
subdivision or instrumentality thereof (b) where one party is a public officer or employee,
and the dispute relates to the performance of his official functions (c) offenses
punishable by imprisonment exceeding 1 year or a fine exceeding PHP 5000.00 (d)
offenses where there is no private offended party (e) where the dispute is brought by or
against a corporation, partnership or juridical entity (f) where the dispute involves real
properties located in different cities or municipalities unless the parties agree to submit
their differences to amicable settlement by an appropriate lupon (g) where dispute
involves parties who actually reside in barangays of different cities or municipalities,
except when the barangays actually adjoin each other and the parties agree to submit
their differences to amicable settlement by an appropriate lupon (h) such other classes
of disputes which the President may determine in the interest of justice or upon
recommendation by the Secretary of Justice (Section 408, PD 1508). (i) disputes arising
from the implementation of the CARP (j) Employer-Employee disputes (k) action to
annul a judgment upon a compromise.
3.
Note however that while no petition, complaint, action or proceeding within the
authority of the lupon shall be filed directly with the court or any government office for
adjudication UNLESS there has been a confrontation before the lupon chairman or
pangkat, and that no conciliation or settlement has been reached as certified by the
lupon secretary or pangkat secretary, or unless the settlement has been repudiated
within 10 days from its date by a statement sworn before the punong barangay to the
effect that his consent is vitiated by fraud violence or intimidation ( Section 418, PD
1508), the following cases may be filed directly: (1) accused in under detention (2)
person has otherwise been deprived of personal liberty calling for habeas corpus
proceedings (3) when action is coupled with a provisional remedy (4) where action may
otherwise be barred by prescription (Section 412, PD 1508)
VENUE
1.
The proper venue for conciliation is as follows: (a) if between persons actually
residing in the same barangay-before the lupon of the said barangay (b) if between
1075
Yasay v Recto, 313 SCRA 739
actual residents of different barangays within the same city of municipality- before the
lupon where the respondent resides, if there be several respondents- before the lupon
where anyone of them resides at the election of the complainant (c) if involving real
property or any interest therein- the barangay lupon where the property or larger portion
is located (d) if arising in the workplace where the contending parties are employed or at
the institution where such parties are enrolled for study- before the lupon of the
barangay where the workplace or institution is located.
2.
Any objection to venue shall be raised before the Punong Barangay, otherwise
they are waived. Legal questions may be submitted to the Secretary of Justice or his
duly designated representative whose ruling thereon shall be binding.
PROCEDURE FOR CONCILIATION OR SETTLEMENT
1.
The procedure for settlement is as follows:
(a)
Initiation of complaint, orally or in writing, to the lupon chairman of the barangay
(b)
Mediation by lupon chairman on the next working day from receipt of the
complaint, failing in which within 15 days from the first meeting, he shall forthwith set a
date for the constitution of the pangkat
(c)
The pangkat shall convene not later than 3 days from constitution to hear the
parties and explore the possibility of an amicable settlement within 15 days from the day
it convenes, which period is extendible for another 15 days, except in clearly meritorious
cases.
2.
Note however, that while prescription does not run upon filing of the complaint
and shall resume only upon receipt of the complaint or certificate of repudiation, or
certification to file action, the interruption shall not exceed 60 days from filing of the
complaint with the punong barangay. (Section 410, PD 1508)
3.
The form of the amicable settlement shall be in writing, in a language/dialect
known to the parties, signed by them and attested by the lupon/pangkat chairman
(Section 411, PD 1508).
3.1
This shall have the force and effect of a final judgment of a court upon
expiration of 10 days from date thereof unless repudiation has been made
or a petition to nullify the award has been filed before the proper court.
3.2
This does not apply to cases already pending but subsequently referred to
the lupon for amicable settlement under the last paragraph of Section
408,as the same is submitted back to the court to serve as basis for
rendition of judgment. (Section 416, PD 1508).
3.3
The award or settlement may be enforced by execution by the lupon within

6 months from the date of the settlement. After the lapse of the said
period, by action in the appropriate city of municipal court. (Section 417,
PD 1508)
4.
Note however that if a settlement is not complied with, the injured party may
bring an action against the offending party to recover the original amount of his claim,
thereby rescinding the compromise under Article 2041 of the Civil Code which was held
to qualify Article 2037 of the Civil Code as to the effect of a compromise being
considered as constituting res judicata.1076
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:
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
1076
Chavez v Court of Appeals, GR 159411, March 18, 2005
amended by A.M. No. 02-11-09-SC, dated Nov. 12, 2002; this amended took effect on
November 25, 2002)
B. Criminal Cases:
(1)
Violations of traffic laws, rules and regulations;
(2)
Violations of the rental law;
(3)
Violations of municipal or city ordinances;
(4)
Violations of Batas Pambansa Blg 221077
(5)
All other criminal cases where the penalty prescribed by law for the offense
charged is imprisonment not exceeding six months, or a fine not exceeding one
thousand pesos (P1,000), or both, irrespective of other imposable penalties, accessory
or otherwise, or of the civil liability arising therefrom: Provided, however, That in
offenses involving damage to property through criminal negligence, this Rule shall
govern where the imposable fine does not exceed ten thousand pesos (P10,000).
This rule shall not apply to a civil case where the plaintiffs cause of action is
pleaded in the same complaint with another cause of action subject to the ordinary
procedure; nor to a criminal case where the offense charged is necessarily related to
another criminal case subject to ordinary procedure.
SEC. 2. Determination of applicability. Upon the filing of a civil or criminal
action, the court shall issue an order declaring whether or not the case shall be
governed by this Rule.
A patently erroneous determination to avoid the application of the Rule of
Summary Procedure is a ground for disciplinary action.
II
CIVIL CASES
SEC. 3. Pleadings.
A.
Pleadings, allowed. The only pleadings allowed to be filed are the
complaints, compulsory counterclaims and cross-claims pleaded in the answer, and the
answers thereto.
B.
Verification. All pleadings shall be verified.
SEC. A. 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.
1077
A.M. 00-11-01-SC, April 15, 2003
If no ground for dismissal is found, it shall forthwith issue summons which shall
state that the summary procedure under this Rule shall apply.
NOTE: That any of the grounds for dismissal under Rule 16 apply although no motion to
dismiss can be filed except on the grounds of lack of jurisdiction and non-compliance
with the requirement on conciliation.
NOTE: That the prohibition as to the filing of a motion to dismiss exists prior to the filing
of an answer but a dismissal grounded on any of the causes stated in Rule 16 can only
be effected prior to the issuance of the court of summons and not after an answer has
been filed (Heirs of Ricardo Olivas vs. Flor, 161 SCRA 393)
SEC. 5. Answer. Within ten (10) days from service of summons, the defendant
shall file his answer to the complaint and serve a copy thereof on the plaintiff. Affirmative
and negative defenses not pleaded therein shall be deemed waived, except for lack of
jurisdiction over the subject matter. Cross-claims and compulsory counterclaims not
asserted in the answer shall be considered barred. The answer to counterclaims or
cross-claims shall be filed and served within ten (10) days from service of the answer in
which they are pleaded.
SEC. 6. Effect of failure to answer. Should the defendant fail to answer the
complaint within the period above provided, the court, motu proprio, or on motion of the
plaintiff, shall render judgment as may be prayed for therein: Provided, however, That
the court may in its discretion reduce the amount of damages and attorneys fees
claimed for being excessive or otherwise unconscionable. This is without prejudice to
the applicability of Section 4, Rule 18 of the Rules of Court, if there are two or more
defendants.
NOTE: Rendition by the court of judgment on account of failure to file an answer or to
appear during the preliminary conference may not require a motion (Sordan vs. De
Guzman, A.M. No. MTJ-00-1296, October 5, 2000)
SEC. 7. Preliminary conference; appearance of parties. Not later than thirty
(30) days after the last answer is filed, a preliminary conference shall be held. The rules
on pre-trial in ordinary cases shall be applicable to the preliminary conference unless
inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall be a
cause for the dismissal of his complaint. The defendant who appears in the absence of
the plaintiff shall be entitled to judgment on his counterclaim in accordance with Section
6 hereof. All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in
accordance with Section 6 hereof. This Rule shall not apply where one of two or more
defendants sued under a common cause of action who had pleaded a common defense
shall appear at the preliminary conference.
SEC. 8. Record of preliminary conference. Within five (5) days after the
termination of the preliminary conference, the court shall issue an order stating the
matters taken up therein, including but not limited to:
(a) Whether the parties have arrived at an amicable settlement, and if so, the
terms thereof;
(b) The stipulations or admissions entered into by the parties;
(c) Whether, on the basis of the pleadings and the stipulations and admissions
made by the parties, judgment may be rendered without the need of further
proceedings, in which event the judgment shall be rendered within thirty (30) days from
issuance of the order;
(d) A clear specification of material facts which remain controverted; and
(e) Such other matters intended to expedite the disposition of the case.
SEC. 9. Submission of affidavits and position papers. Within ten (10) days from
receipt of the order mentioned in the next preceding section, the parties shall submit the
affidavits of their witnesses and other evidence on the factual issues defined in the
order, together with their position papers setting forth the law and the facts relied upon
by them.
SEC. 10. Rendition of judgment. Within thirty (30) days after receipt of the last
affidavits and position papers, or the expiration of the period for filing the same, the
court shall render judgment.
However, should the court find it necessary to clarify certain material facts, it may,
during the said period, issue an order specifying the matters to be clarified, and require
the parties to submit affidavits or other evidence on the said matters within ten (10) days
from receipt of said order. Judgment shall be rendered within fifteen (15) days after the
receipt of the last clarificatory affidavits, or the expiration of the period for filing the
same.
The court shall not resort to the clarificatory procedure to gain time for the
rendition of the judgment.
NOTE: That hearings are not necessary unless for the purpose of clarifying certain
material facts.
III
CRIMINAL CASES
Sec. 11. How commenced. The filing of criminal cases falling within the scope
of this Rule shall be either by complaint or by information; Provided, however, That in
Metropolitan Manila and in Chartered Cities, such cases shall be commenced only by
information, except when the offense cannot be prosecuted de officio.
The complaint or information shall be accompanied by the affidavits of the
complainant and of his witnesses in such number of copies as there are accused plus
two (2) copies of the courts files. If this requirement is not complied with within five (5)
days from date of filing, the case may be dismissed.
Sec. 12 Duty of court.
(a)
If commenced by complaint. On the basis of the complaint and the affidavits
and other evidence accompanying the same, the court may dismiss the case outright for
being patently without basis or merit and order the release of the accused if in custody.
(b)
If commenced by information. When the case is commenced by information, or
is not dismissed pursuant to the next preceding paragraph, the court shall issue an
order which, together with copies of the affidavits and other evidence submitted by the
prosecution, shall require the accused to submit his counter-affidavit and the affidavits
of his witnesses as well as any evidence in his behalf, serving copies thereof on the
complainant or prosecutor not later than ten (10) days from receipt of said order. The
prosecution may file reply affidavits within ten (10) days after receipt of the counteraffidavits of the defense.
Sec. 13 Arraignment and trial. Should the court, upon a consideration of the
complaint or information and the affidavits submitted by both parties, find no cause or
ground to hold the accused for trial, it shall order the dismissal of the case; otherwise,
the court shall set the case for arraignment and trial.
If the accused is in custody for the crime charged, he shall be immediately
arraigned and if he enters a plea of guilty, he shall forthwith be sentenced.
Sec. 14 Preliminary conference. Before conducting the trial, the court shall call
the parties to a preliminary conference during which a stipulation of facts may be
entered into, or the propriety of allowing the accused to enter a plea of guilty to a lesser
offense may be considered, or such other matters may be taken up to clarify the issues
and to ensure a speedy disposition of the case. However, no admission by the accused
shall be used against him unless reduced to writing and signed by the accused and his
counsel. A refusal or failure to stipulate shall not prejudice the accused.
Sec. 15 Procedure of trial. At the trial, the affidavits submitted by the parties
shall constitute the direct testimonies of the witnesses who executed the same.
Witnesses who testified may be subjected to cross-examination, redirect or re-cross-
examination. Should the affiant fail to testify, his affidavit shall not be considered as
competent evidence for the party presenting the affidavit, but the adverse party may
utilize the same for any admissible purpose.
Except on rebuttal or surrebuttal, no witness shall be allowed to testify unless his
affidavit was previously submitted to the court in accordance with Section 12 hereof.
However, should a party desire to present additional affidavits or counteraffidavits as part of his direct evidence, he shall so manifest during the preliminary
conference, stating the purpose thereof. If allowed by the court, the additional affidavits
of the prosecution or the counter-affidavits of the defense shall be submitted to the court
and served on the adverse party not later than three (3) days after the termination of the
preliminary conference. If the additional affidavits are presented by the prosecution, the
accused may file his counter-affidavits and serve the same on the prosecution within
three (3) days from such service.
Sec. 16. Arrest of accused. The court shall not order the arrest of the accused
except for failure to appear whenever required. Release of the person arrested shall
either be on bail or on recognizance by a responsible citizen acceptable to the court.
Sec. 17 Judgment. Where a trial has been conducted, the court shall
promulgate the judgment not later than thirty (30) days after the termination of trial.
COMMON PROVISIONS
SEC. 18 Referral to Lupon. Cases requiring referral to the Lupon for
conciliation under the provisions of Presidential Decree No. 1508 where there is no
showing of compliance with such requirement, shall be dismissed without prejudice, and
may be revived only after such requirement shall have been complied with. This
provision shall not apply to criminal cases where the accused was arrested without a
warrant.
SEC. 19. Prohibited pleadings and motions. The following pleadings, motions,
or petitions shall not be allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint or to quash the complaint or information
except on the ground of lack of jurisdiction over the subject matter, or failure to comply
with the preceding section;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of
trial;
(d) Petition for Relief from Judgment
(e) Motion for extension of time to file pleadings, affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory
order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
NOTE: If motion is well grounded, it may be allowed.
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.
SEC. 20. Affidavits. The affidavits required to be submitted under this Rule
shall state only facts of direct personal knowledge of the affiants which are admissible in
evidence, and shall show their competence to testify to the matters stated therein.
A violation of this requirement may subject the party or the counsel who submits
the same to disciplinary action, and shall be cause to expunge the inadmissible affidavit
or portion thereof from the record.
SEC. 21. Appeal. The judgment or final order shall be appealable to the
appropriate regional trial court which shall decide the same in accordance with Section
22 of Batas Pambansa Blg. 129. The decision of the regional trial court in civil cases
governed by this Rule, including forcible entry and unlawful detainer, shall be
immediately executory, without prejudice to a further appeal that may be taken
therefrom.
NOTE: That immediate execution requires proof that the losing party has been served
with notice of judgment (Dy vs. CA, 191 SCRA 585) and that notice of the motion for
execution to the adverse party is required ( Limpo vs. CA, 333 SCRA 575)
SEC. 22. Applicability of the regular rules. The regular procedure prescribed in
the Rules of Court shall apply to the special cases herein provided for in a suppletory
capacity insofar as they are not inconsistent herewith.
SEC. 23. Effectivity. This revised Rule on Summary Procedure shall be
effective on November 15, 1991.
In fact, it has been declared that the motion for extension of time within which a party
may plead is not a litigated motion where notice to the adverse party is necessary to
afford the latter an opportunity to resist the application, but an ex parte motion made to
the court in behalf of one or the other of the parties to the action, in the absence and
usually without the knowledge of the other party or parties. (Commercial Union
Assurance Company Limited, et. al. vs. Lepanto Consolidated Mining Company, et. al.,
L-43342. October 30, 1978, 86 SCRA 79, 95-96; Amante vs. Sunga, et. al., L-40491,
May 28, 1975, 64 SCRA 192, 195)
Therefore, as long as it is filed within the period sought to be extended, a request for
extension of time may be filed ex parte and granted without the usual formalities
applicable to motions in general. (Moya vs. Barton, 76 Phil. 831)

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LECTURE NOTES ON CIVIL PROCEDURE

Revised October 2009

Conlu v. Court of Appeals, 106 Phil 940

show that it lacked jurisdiction to render the judgment - a void judgment

However, a party may be barred from raising it on the ground of laches or

It is incumbent upon the petitioner to file a motion to dismiss at the earliest

REQUISITES FOR A VALID EXERCISE OF JURISDICTION

On the other hand, it is acquired over the defendant by his voluntary

Determined by allegations in the complaint. Jurisdiction must be

The determination is to be confined solely to the four corners of the

Neither can it be determined from the allegations in the answer of the

The only recognized exception is the defense of agricultural tenancy.13 The

Heirs of Valeriano S. Concha, Sr. v. Lumocso, 540 SCRA 1

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

Example: If an action for payment of a sum of money is filed after the

When a court has already obtained and is exercising jurisdiction over a

These are quasi in rem actions. 21 The action is directed against a

PROBLEM AREAS AFFECTING JURISDICTION

Reyes v. Diaz, 73 Phil 484

Actions which are incapable of pecuniary estimation

It is a claim, the subject of which cannot be estimated in terms of money.

Examples: Action for specific performance although damages are being

In determining which court has jurisdiction, the applicable test is the

Examples: An action for specific performance with a prayer for the

The problem arises as filing is not synonymous with docketing as the

Gochan v. Gochan, 372 SCRA 256

The purpose of docket fees is to take care of court expenses in the

Examples in determining appropriate docket fees: (a) Foreclosure

In a complaint for recovery of possession of real property which did not

Serrano v. Delica, 465 SCRA 82

If the claims are not specified and subsequently arise or there is an

DISTINCTIONS BETWEEN THE NATURE OF JURISDICTION EXERCISED BY THE

Note though the Doctrine of Hierarchy of Courts which requires litigants to

JURISDICTION OF THE SUPREME COURT

Mercado v. Ubay, 187 SCRA 719

JURISDICTION OF THE COURT OF APPEALS

JURISDICTION OF REGIONAL TRIAL COURTS

All civil actions in which the subject of the litigation is incapable of

exceeds Two hundred thousand pesos (P200,000.00) or for civil actions in

All actions in admiralty and maritime jurisdiction where the demand or

All actions involving the contact of marriage and marital relations;

All other cases in which the demand, exclusive of interest, damages of

The Rules shall be known and cited as the Rules of Court. 37

Section 1, Rule 1, 1997 Rules of Civil Procedure

Civil Actions may be considered as:

Ordinary or Special, while both are governed by the rules for

In Personam, which is an action brought against a person based on

In Rem, is an action that is directed against the thing itself rather

Quasi in Rem, is an action that names a person as a defendant but

Note the distinctions between actions in personam, on one hand, and

Supra, Section 2, Rule 1

a proceeding in rem or quasi in rem, jurisdiction over the person of the

Civil Actions can also be distinguished as:

An action to annul a contract of loan and its accessory real estate

An action in personam is not necessarily a personal action. Nor is a real

Distinguishing civil actions from other kinds of actions:

Biaco v. Philippine Countryside Rural Bank, GR No. 161417, February 8, 2007

A Special Proceeding is a remedy by which a party seeks to establish a

The exceptions to retroactive application are: (a) the statute itself or by

WHEN AN ACTION IS COMMENCED

An exception is when the plaintiff is authorized to litigate as a pauper

Liberal construction is the controlling principle to effect substantial justice.

Rules must not be applied to rigidly so as not to override substantial