1

GENERAL
Prospectivity/ Retroactivity

The Rules of Court are not penal statutes and

PRINCIPLES cannot be given retroactive effect [Bermejo v

Barrios (1970)].

Rules of procedure may be made applicable to

CONCEPT OF REMEDIAL LAW actions pending and undetermined at the time of
their passage, and are deemed retroactive in
Remedial law is that branch of law which that sense and to that extent. [In the Matter to
prescribes the method of enforcing rights or Declare in Contempt of Court Hon. Simeon
obtaining redress for their invasion (Bustos v. Datumanong (2006)].
Lucero, 81 Phil. 640). The Rules of Court shall govern cases brought
after they take effect, and also all further
Remedial statute or statutes: proceedings then pending, EXCEPT to the extent
(1) Relating to remedies or modes of that in the opinion of the Court their application
procedure; would not be feasible or would work injustice.
(2) Do not take away or create vested [Riano citing Rule 114]
rights;
(3) BUT operate in furtherance of rights
already existing. (Riano citing Systems
SUBSTANTIVE LAW VIS--VIS
Factor Corporation v NLRC (2000))
REMEDIAL LAW
Source
Substantive Law - creates, defines and
Remedial law is basically contained in the Rules regulates rights and duties regarding life, liberty
of Court. Circulars of the Supreme Court or property which when violated gives rise to a
implementing the Rules of Court (e.g. Rules on cause of action (Bustos v. Lucero, 81 Phil. 640)
Summary Procedure) also contain remedial law.
SUBSTANTIVE LAW REMEDIAL LAW
The Rules of Court, promulgated by authority of It refers to the
It is that part of the
law, have the force and effect of law, if not in legislation providing
law which creates,
conflict with positive law (Inchausti & Co v de means or methods
defines, or regulates
Leon (1913)]. The rule is subordinate to the whereby causes of
rights, concerning life,
statute, and in case of conflict, the statute will action may be
liberty or property or
prevail. [Shioji v Harvey (1922)]. effectuated, wrongs
the powers of agencies
redressed, and relief
or instrumentalities
Applicability obtained
for the administration
It is also called
of public affairs
The Rules of Court is applicable in ALL COURTS, Adjective Law
EXCEPT as otherwise provided by the SC [Rule 1, It makes vested rights It has no vested
Sec. 2]. possible rights
It governs acts and
It governs the procedure to be observed in CIVIL It is prospective in transactions which
or CRIMINAL actions and SPECIAL proceedings application took place
[Rule 1, Sec. 3]. (retroactive)
The SC is expressly
It does not apply to the following cases: It cannot be enacted empowered to
1. Election cases, by the SC promulgate
2. Land registration cases, procedural rules
3. Cadastral cases
4. Naturalization cases, RULE MAKING POWER OF THE
5. Insolvency proceedings SUPREME COURT
6. Other cases not herein provided for
Judicial Power includes the duty of the courts of
Except by analogy or in a suppletory justice to settle actual controversies involving
character and whenever practicable and rights, which are legally demandable and
convenient [Rule 4, Sec. 4] enforceable, and to determine whether or not
there has been grave abuse of discretion
2
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government (Sec. 1, Art. VIII, 1987 Constitution)
The power of judicial review is the SCs power to
declare a law, treaty, international or executive
agreement, presidential decree, proclamation,
order, instruction, ordinance, or regulation
unconstitutional
Sec. 5(5), Art. VIII, of the 1987 Constitution
provides that that the Supreme Court shall have
the power to:
1. promulgate rules concerning the
protection and enforcement of
constitutional rights, pleading, practice,
and procedure in all courts;
2. admission to the practice of law;
3. the Integrated Bar;
4. and legal assistance to the
underprivileged
Limitations on the rule-making power of the
Supreme Court
Sec 5(5) of Art. VIII of the Constitution sets forth
the limitations to the power:
1. That the rules shall provide a simplified
and inexpensive procedure for speedy
disposition of cases;
2. That the rules shall be uniform for
courts of the same grade; and
3. That the rules shall not diminish,
increase or modify substantive rights.
Power of the Supreme Court to Amend and
Suspend Procedural Rules
Power to Amend Remedial Laws
1. The constitutional faculty of the Court
to promulgate rules of practice and
procedure necessarily carries with it
the power to overturn judicial
precedents on points of remedial law
through the amendment of the Rules of
Court. [Pinga v Heirs of Santiago
(2006)].
2. The SC has the sole prerogative to
amend, repeal, or even establish new
rules for a more simplified and
inexpensive process, and the speedy
disposition of case [Neypes v CA
(2005)]
Power to Suspend Remedial Laws
1. It is within the inherent power of the
Supreme Court to suspend its own rules
in a particular case in order to do justice
[De Guia v De Guia (2001)].
2. When the operation of rules will lead to
an injustice or if their application tends
to subvert and defeat instead of
promote and enhance justice, their
suspension is justified [Republic v CA
(1978)].
3. There is no absolute rule as to what
constitutes good and sufficient cause
that will merit suspension of the rules.
The matter is discretionary upon the
Court [Republic v Imperial Jr. (1999)].
4. The bare invocation of "the interest of
substantial justice" is not a magic wand
that will automatically compel this
Court to suspend procedural rules
[Ramos v Sps Lavendia (2008)].
5. Procedural rules are not to be belittled
or dismissed simply because their non-
observance may have resulted in
prejudice to a party's substantive rights.
Like all rules, they are required to be
followed except only for the most
persuasive of reasons when they may
be relaxed to relieve a litigant of an
injustice not commensurate with the
degree of his thoughtlessness in not
complying with the procedure
prescribed. [Polanco v Cruz (2009)].
NATURE OF PHILIPPINE COURTS
Meaning of a Court
A court is an organ of the government belonging
to the judicial department, the function of which
is the application of the laws to controversies
brought before it (and) as well as the public
administration of justice.
Generally, the term describes an organ of the
government consisting of one person or of
several persons, called upon and authorized to
administer justice. It is also the place where
justice is administered. [Riano citing Blacks and
Am. Jur. and C. J. S.]
Court as Distinguished from a Judge
COURT JUDGE
A tribunal officially
An officer of such
assembled under
tribunal
authority of law
An organ of the The judge is the one
government with a who sits in court
3
personality separate
from the person or
judge
A being in imagination
A physical and
comparable to a
natural person
corporation
May be considered an
A public officer
office
The circumstances of the court are not affected by
the circumstance that would affect the judge. The
continuity of a court and the efficacy of its
proceedings are not affected by the death,
resignation, or cessation from the service of the
judge presiding over it. In other words, the judge
may resign, become incapacitated, or be
disqualified to hold office, but the court remains.
The death of the judge does not mean the death
of the court [Riano citing ABC Davao Auto Supply
v. CA (1998)].
Classification of Philippine Courts
1. Courts of original and appellate
jurisdiction
2. Courts of general and special
jurisdiction
3. Constitutional and statutory courts
4. Courts of law and equity
5. Superior and Inferior Courts
6. Courts of record and not of record
Courts of original and appellate jurisdiction
Courts of original jurisdiction Those courts in
which, under the law, actions or proceedings
may be originally commenced.
Courts of appellate jurisdiction Courts which
have the power to review on appeal the
decisions or orders of a lower court. [Regalado]
Courts of general and special jurisdiction
Courts of general jurisdiction Those competent
to decide their own jurisdiction and to take
cognizance of all kinds of cases, unless
otherwise provided by the law or Rules.
Courts of special or limited jurisdiction Those
which have no power to decide their own
jurisdiction and can only try cases permitted by
statute. [Regalado]
Constitutional and statutory courts
Constitutional courts Those which owe their
creation and existence to the Constitution and,
therefore cannot be legislated out of existence
or deprived by law of the jurisdiction and
powers unqualifiedly vested in them by the
Constitution. e.g. Supreme Court; Sandiganbayan
is a constitutionally-mandated court but created
by statute.
Statutory courts Those created, organized and
with jurisdiction exclusively determined by law.
[Regalado]
Courts of law and equity
Courts of Law- Those courts which administer
the law of the land. They settle cases according
to law.
Courts of Equity- Those courts which rules
according to the precepts of equity or justice.
They settle cases according to the principles of
equity referring to principles of justice, fainess
and fair play.
Philippine courts are both courts of law and
equity. Hence, both legal and equitable
jurisdiction is dispensed with in the same
tribunal [U.S. v. Tamparong (1998)]
Superior and Inferior Courts
Superior courts Courts which have the power
of review or supervision over another and lower
court.
Inferior courts Those which, in relation to
another court, are lower in rank and subject to
review and supervision by the latter. [Regalado]
Courts of record and not of record
Courts of record Those whose proceedings are
enrolled and which are bound to keep a written
record of all trials and proceedings handled by
them. [Regalado] One attribute of a court of
record is the strong presumption as to the
veracity of its records that cannot be collaterally
attacked except for fraud. All Philippine courts,
including inferior courts, are now courts of
record. [Riano]
Courts not of record Courts which are not
required to keep a written record or transcript
of proceedings held therein.
Principle of Judicial Hierarchy
The judicial system follows a ladderized scheme
which in essence requires that lower courts
initially decide on a case before it is considered
by a higher court. Specifically, under the judicial
policy recognizing hierarchy of courts, a higher
4
court will not entertain direct resort to it unless
the redress cannot be obtained in the
appropriate courts. [Riano citing Santiago v.
Vasquez (1993)]
The principle is an established policy necessary
to avoid inordinate demands upon the Courts
time and attention which are better devoted to
those matters within its exclusive jurisdiction,
and to preclude the further clogging of the
Courts docket [Lim v. Vianzon (2006)].
When the doctrine/principle may be
disregarded: A direct recourse of the Supreme
Courts original jurisdiction to issue writs
(referring to the writs of certiorari, prohibition,
or mandamus) should be allowed only when
there are special and important reasons
therefor, clearly and specifically set out in the
petition. [Mangahas v. Paredes (2007)]. The
Supreme Court may disregard the principle of
hierarchy of courts if warranted by the nature
and importance of the issues raised in the
interest of speedy justice and avoid future
litigations [Riano].
Doctrine of Non-Interference or Doctrine of
Judicial Stability
JURISDICTION
JURISDICTION IN GENERAL
Jurisdiction is defined as the authority to try,
hear and decide a case [Tolentino v. Leviste
(2004)].
Judicial power includes the duty of the courts of
justice: [Art 8, Sec. 1, Constitution]
1. To settle actual controversies involving
rights which are legally demandable
and enforceable;
2. To determine WON there has been a
grave abuse of discretion amounting to
lack or excess of jurisdiction on the part
of any government branch/
instrumentality.
All courts exercise judicial power. Only the
Supreme Court is the court created by the
Constitution [Art 8, Sec. 1, Constitution]. The
Sandiganbayan is a Constitutionally mandated
court, but it is created by statute. [PD 1486]
REQUISITES FOR A VALID EXERCISE OF
JURISDICTION
The principle holds that courts of equal and
coordinate jurisdiction cannot interfere with
each others orders [Lapu-lapu Development and
Housing Corp. v. Group Management
Corp.(2002)] The principle also bars a court
from reviewing or interfering with the judgment
of a co-equal court over which it has no
appellate jurisdiction or power of review
[Villamor v. Salas (1991)].
The doctrine of non-interference applies with
equal force to administrative bodies. When the
law provides for an appeal from the decision of
an administrative body to the SC or CA, it means
that such body is co-equal with the RTC in terms
of rank and stature, and logically beyond the
control of the latter [Phil Sinter Corp. v. Cagayan
Electric Power (2002)].
General Rule: No court has the authority to
interfere by injunction with the judgment of
another court of coordinate jurisdiction or to
pass upon or scrutinize and much less declare as
unjust a judgment of another court
Exception: The doctrine of judicial stability does
not apply where a third party claimant is
involved
1. Court must have jurisdiction over the
persons of the parties
2. It must have jurisdiction over the
subject matter of the controversy
3. It must have jurisdiction over the res
4. It must have jurisdiction over the issues
JURISDICTION OVER THE PARTIES
The manner by which the court acquires
jurisdiction over the parties depends on
whether the party is the plaintiff or the
defendant.
The mode of acquisition of jurisdiction over the
plaintiff and the defendant applies both to
ordinary and special civil actions.
How jurisdiction over the PLAINTIFF is acquired
- Jurisdiction over the plaintiff is acquired by
filing of the complaint or petition. By doing so, he
submits himself to the jurisdiction of the court
[Davao Light & Power Co., Inc. v CA (1991)].
How jurisdiction over the DEFENDANT is
acquired - Acquired by the
1. Voluntary appearance or submission by
the defendant or respondent to the
court or
5

2. By coercive process issued by the court procedure or mistakes

to him, generally by the service of in the courts mistakes
summons [de Joya v. Marquez (2006), in the courts findings
citing Regalado] [Banco Filipino
Savings v. CA (2000)]
NOTE: In an action in personam, jurisdiction Correctible only by the
over the person is necessary for the court to Correctible by appeal
extraordinary writ of
validly try and decide the case, while in a [Cabrera v Lapid
certiorari [Cabrera v
proceeding in rem or quasi in rem, jurisdiction (2006)]
Lapid (2006)]
over the person of the defendant is not a Ground for reversal
prerequisite to confer jurisdiction on the court only if it is shown that
provided the latter has jurisdiction over the res Renders a judgment
prejudice has been
[Alba v. CA (2005)]. void or voidable [Rule
caused [Banco
16 Sec. 1, Rule 65]
Espaol-Filipino v
JURISDICTION OVER THE SUBJECT MATTER Palanca (1918)]

Jurisdiction over the subject matter is the power

to deal with the general subject involved in the
action, and means not simply jurisdiction of the
particular case then occupying the attention of
the court but jurisdiction of the class of cases to
which the particular case belongs (Riano citing
CJS).
How conferred and determined:
1. Jurisdiction being a matter of
substantive law, the statute in force at
the time of the commencement of the
action determines the jurisdiction of the
court.

It is the power to hear and determine cases of
the general class to which the proceedings in
question belong [Reyes v. Diaz (1941)]
Jurisdiction versus the exercise of jurisdiction
Jurisdiction: the authority to hear and determine
a cause the right to act in a case. [Arranza v.
BF Homes (2000)].
Exercise of Jurisdiction.: the exercise of this
power or authority
2. It is conferred only by the Constitution
or the law.
3. Jurisdiction CANNOT be:
a. Fixed by agreement of the parties;
b. Cannot be acquired through, or
waived, enlarged or diminished by,
any act or omission of the parties;
c. Neither can it be conferred by the
acquiescence of the court [Regalado
citing De Jesus v Garcia (1967)].
d. Cannot be subject to compromise
[Civil Code, Art 2035]

Jurisdiction is distinct from the exercise thereof. 4. Jurisdiction over the subject matter is
Jurisdiction is the authority to decide a case and determined by the allegations of the
not the decision rendered therein. When there is complaint and the reliefs prayed for.
jurisdiction over the subject matter, the decision [Gulfo v. Ancheta (2012)]
on all other questions arising in the case is but
an exercise of jurisdiction. [Herrera v. Baretto et 5. It is not affected by the pleas set up by
al (1913)] the defendant in the answer or in the
answer or in a motion to dismiss.
[Sindico v. Diaz (2004)].
Error of Jurisdiction as distinguished from Error
of Judgment 6. Once attached to a court, it cannot be
ousted by subsequent statute.
a. Exception: The statute itself
Error of jurisdiction Error of judgment conferring new jurisdiction
expressly provides for retroactive
It is one where the act It is one which the effect. [Southern Food v. Salas
complained of was court may commit in (1992)]
issued by the court the exercise of its
without or in excess of jurisdiction [Cabrera 7. The filing of the complaint or
jurisdiction [Cabrera v. v. Lapid (2006)]. appropriate initiatory pleading and the
Lapid (2006)]. It includes errors of payment of the prescribed docket fee
6
vest a trial court with jurisdiction over
the subject matter or the nature of the
action [CB v. CA (1992)](2008 Bar
Exam).
a. Exception: Non-payment of docket
fee does not automatically cause
the dismissal of the case on the
ground of lack of jurisdiction as
long as the fee is paid within the
applicable prescriptive or
reglementary period, more so when
the party involved demonstrates a
willingness to abide by the rules
prescribing such payment. [Go v.
Tong (2003)]
Doctrine of Primary Jurisdiction
Courts cannot and will not resolve a controversy
involving a question which is within the
jurisdiction of an administrative tribunal,
especially where the question demands the
exercise of sound administrative discretion
requiring the special knowledge, experience and
services of the administrative tribunal to
determine technical and intricate matters of fact
[Paloma v. Mora (2005)].
Objective is to guide a court in determining
whether it should refrain from exercising its
jurisdiction until after an administrative agency
has determined some question or some aspect
of some question arising in the proceeding
before the court [Riano citing Omictin v. CA
(2007)]
Doctrine of Adherence of Jurisdiction
Also known as doctrine of continuity of
jurisdiction
The court, once jurisdiction has been acquired,
retains that jurisdiction until it finally disposes
of the case [Bantua v. Mercader (2001)].
As a consequence, jurisdiction is not affected by
a new law placing a proceeding under the
jurisdiction of another tribunal, EXCEPT:
1. Where there is an express provision in
the statute
2. The statute is clearly intended to apply
to actions pending before its enactment
[Riano citing People v. Cawaling
(1998)].
Objections to Jurisdiction over the Subject
Matter
When it appears from the pleadings or evidence
on record that the court has no jurisdiction over
the subject matter, the court shall dismiss the
same. (Sec. 1, Rule 9)
The court may on its OWN INITIATIVE object to
an erroneous jurisdiction and may ex mero motu
take cognizance of lack of jurisdiction at any
point in the case and has a clearly recognized
right to determine its own jurisdiction [Fabian v.
Desierto (1998)].
Earliest opportunity of a party to raise the issue
of jurisdiction is in a motion to dismiss filed
before the filing or service of an answer. Lack of
jurisdiction over subject matter is a ground for a
motion to dismiss. If no motion is filed, the
defense of lack of jurisdiction may be raised as
an affirmative defense in the answer. [Riano
citing Sec. 1(b) and 6 of Rule 16].
Jurisdiction over the subject matter may be
raised at any stage of the proceedings, even for
the first time on appeal. When the court
dismisses the complaint for lack of jurisdiction
over the subject matter, it is common reason
that the court cannot remand the case to
another court with the proper jurisdiction. Its
only power is to dismiss and not to make any
other order.
Effect of Estoppel on Objections to Jurisdiction
General Rule: Estoppel does not apply to confer
jurisdiction to a tribunal that has none over a
cause of action. Jurisdiction is conferred by law.
Where there is none, no agreement of the
parties can provide one. Settled is the rule that
the decision of a tribunal not vested with
appropriate jurisdiction is null and void.
[SEAFDEC-AQD v. NLRC (1992)]
Exception: Participation in all stages of the case
before the trial court, that included invoking its
authority in asking for affirmative relief,
effectively barred petitioner by estoppel from
challenging the courts jurisdiction. [Soliven v.
Fastforms (2004)]
JURISDICTION OVER THE ISSUES
It is the power of the court to try and decide
issues raised in the pleadings of the parties.
7
An issue is a disputed point or question to which
parties to an action have narrowed down their
several allegations and upon which they are
desirous of obtaining a decision. Where there is
no disputed point, there is no issue.
Generally, jurisdiction over the issues is
conferred and determined by:
1. The pleadings of the parties. The
pleadings present the issues to be tried
and determine whether or not the
issues are of fact or law.
2. Stipulation of the parties as when in the
pre-trial, the parties enter into
stipulations of facts and documents or
enter into agreement simplifying the
issues of the case.
3. Waiver or failure to object to the
presentation of evidence on a matter
not raised in the pleadings. Here the
parties try with their express or implied
consent or issues not raised by the
pleadings. The issues tried shall be
treated in all respects as if they had
been raised in the pleadings.
JURISDICTION OVER THE RES OR PROPERTY
IN LITIGATION
Jurisdiction over the res refers to the courts
jurisdiction over the thing or the property which
is the subject of the action.
Jurisdiction over the res may be acquired by the
court
1. By placing the property or thing under
its custody (custodia legis)
a. The seizure of the thing under legal
process whereby it is brought into
actual custody of law
b. Example: attachment of property.
2. Through statutory authority conferring
upon it the power to deal with the
property or thing within the courts
territorial jurisdiction
a. Institution of a legal proceeding
wherein the power of the court
over the thing is recognized and
made effective
b. Example: suits involving the status
of the parties or suits involving the
property in the Philippines of non-
resident defendants.
JURISDICTION OF THE
METROPOLITAN TRIAL COURTS AND
MUNICIPAL TRIAL COURTS
JURISDICTION OF THE MTCs IN CIVIL CASES
Exclusive Original Jurisdiction
1. If the amount involved does not exceed
P300,000 outside Metro Manila or does
not exceed P400,000 in Metro Manila in
the following cases:
a. Actions involving personal property
b. Probate Proceeding (testate and
intestate) based on gross value of
the estate
c. Admiralty and maritime cases
d. Demand for money
NOTE: Do not include Interest,
Damages of whatever kind,
Attorneys fees, Litigation Expenses,
and Costs (IDALEC). However, in
cases where the claim for damages
is the main cause of action, or one
of the causes of action, the amount
of such claim shall be considered in
determining the jurisdiction of the
court.
2. Actions involving title to, or possession
of, real property, or any interest therein
where the assessed value of the
property or interest therein does not
exceed P20,000 outside Metro Manila or
does not exceed P50,000 in Metro
Manila
3. Inclusion and exclusion of voters
4. Those governed by the Rules on
Summary Procedure
a. Forcible entry and unlawful
detainer (FEUD)
(1) With jurisdiction to resolve
issue of ownership to
determine ONLY issue of
possession (provisional only)
(2) Irrespective of the amount of
damages or unpaid rentals
sought to be recover
(3) Where attorneys fees are
awarded, the same shall not
exceed P20,000
b. Other civil cases, except probate
proceeding, where the total amount
of the plaintiffs claim does not
exceed P200,000 in MM, exclusive
of interests and costs.
8
Special Jurisdiction over petition for writ of
habeas corpus OR application for bail in criminal
cases in the absence of all RTC judges in the
province or city
Delegated Jurisdiction to hear and decide
cadastral and land registration cases where:
1. There is no controversy over the land
2. In case of contested lands, the value
does not exceed P100, 000:
a. The value is to be ascertained:
(1) By the claimants affidavit
(2) By agreement of the respective
claimants, if there are more
than one
(3) From the corresponding tax
declaration of the real property
NOTE: MTC decisions in cadastral and
land registration cases are appealable in
the same maner as RTC decisions
1st level courts:
a. Metropolitan Trial Court Metro
Manila;
b. Municipal Trial Courts in Cities
situated in cities
c. Municipal Circuit Trial Court
composed of multi-sala
d. Municipal Trial Courts in one
municipality
JURISDICTION OVER SMALL CLAIMS,
SUMMARY PROCEDURE, AND
BARANGAY CONCILIATION
JURISDICTION OVER SMALL CLAIMS
MTCs, MeTCs and MCTCs shall have jurisdiction
over actions for payment of money where the
value of the claim does not exceed P100,000
exclusive of interest and costs (Sec. 2, AM 08-8-
7-SC, Oct. 27, 2009).
Actions covered are
1. Purely civil in nature where the claim or
relief prayed for by the plaintiff is solely
for payment or reimbursement of sum
of money, and
2. The civil aspect of criminal actions,
either filed before the institution of the
criminal action, or reserved upon the
filing of the criminal action in court,
pursuant to Rule 111 (Sec. 4, AM 08-8-
7-SC).
These claims may be:
1. For money owed under the contracts of
lease, loan, services, sale, or mortgage;
2. For damages arising from fault or
negligence, quasi-contract, or contract;
and
3. The enforcement of a barangay
amicable settlement or an arbitration
award involving a money claim
pursuant to Sec. 417 of RA 7160 (LGC).
CASES COVERED BY RULES ON SUMMARY
PROCEDURE
All cases of forcible entry and unlawful detainer
(FEUD), irrespective of the amount of damages
or unpaid rentals sought to be recovered. Where
attorneys fees are awarded, the same shall not
exceed P20,000;
All other cases, except probate proceedings
where the total amount of the plaintiffs claim
does not exceed P100,000 (outside Metro
Manila) or P200,000 (in Metro Manila),
exclusive of interest and costs.
Prohibited Pleadings:
1. Motion to dismiss the compliant except
on the ground of lack of jurisdiction;
2. Motion for a bill of particulars;
3. Motion for new trial, or for
reconsideration of a judgment, or for
reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file
pleadings, affidavits, or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court;
8. Motion to declare the defendant in
default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints; and
12. Interventions. [Sec. 14, Prohibited
pleadings and motions]
CASES COVERED BY THE RULES ON
BARANGAY CONCILIATION
The Lupon of each barangay shall have the
authority to bring together the parties actually
residing in the same municipality or city for
amicable settlement of all disputes
9
EXCEPT:
1. Where one party is the government or
any subdivision or instrumentality
thereof
2. Where one party is a public officer or
employee, and the dispute relates to the
performance of his official functions
3. Offenses punishable by imprisonment
exceeding one (1) year or a fine
exceeding P5,000
4. Offenses where there is no private
offended party
5. Where the dispute involves real
properties located in different cities or
municipalities unless the parties
thereto agree to submit their
differences to amicable settlement by
an appropriate lupon
6. Disputes involving parties who actually
reside in barangays of different cities or
municipalities, except where such
barangay units adjoin each other and
the parties thereto agree to submit their
differences to amicable settlement by
an appropriate lupon
7. Such other classes of disputes which the
President may determine in the interest
of justice or upon the recommendation
of the Secretary of Justice
8. Any complaint by or against
corporations, partnerships, or juridical
entities. The reason is that only
individuals shall be parties to barangay
conciliation proceedings either as
complainants or respondents
9. Disputes where urgent legal action is
necessary to prevent injustice from
being committed or further continued,
specifically:
a. A criminal case where the accused
is under police custody or detention
b. A petition for habeas corpus by a
person illegally detained or
deprived of his liberty or one acting
in his behalf
c. Actions coupled with provisional
remedies, such as preliminary
injunction, attachment, replevin
and support pendente lite
d. Where the action may be barred by
statute of limitation
10. Labor disputes or controversies arising
from employer-employee relationship
11. Where the dispute arises from the CARL
12. Actions to annul judgment upon a
compromise which can be directly filed
in court.
NOTE: It is a condition precedent under Rule 16;
can be dismissed but without prejudice
JURISDICTION OF THE REGIONAL
TRIAL COURTS, FAMILY COURTS, AND
SHARIA COURTS
JURISDICTION OF THE RTC IN CIVIL CASES
General Original Jurisdiction All cases not
within the exclusive jurisdiction of any
court/tribunal/person/ body exercising judicial
or quasi-judicial functions
Exclusive Original Jurisdiction
1. The action is incapable of pecuniary
estimation
a. Such as rescission of contract,
action to revive judgment,
declaratory relief (1st part),
support, expropriation)
b. If the action is primarily for the
recovery of a sum of money, the
claim is considered capable of
pecuniary estimation, and
jurisdiction over the action will
depend on the amount of the claim.
[RCPI v. CA (2002)]
c. If the basic issue is something other
than the right to recover a sum of
money, if the money claim is purely
incidental to, or a consequence of,
the principal relief sought, the
action is one where the subject of
the litigation may not be estimated
in terms of money. [Soliven v.
Fastforms (1992)]
2. Title to, possession of, or interest in,
real property with assessed value
exceeding P20,000 outside Metro
Manila, or exceeds P50,000 in Metro
Manila
a. Except: Forcible entry and unlawful
detainer cases
3. If the amount involved exceeds
P300,000 outside Metro Manila or
exceeds P400,000 in Metro Manila in
the following cases:
a. Admiralty and maritime cases
b. Matters of Probate (testate and
intestate)
c. Other actions involving personal
property
d. Demand for money
10
NOTE: The exclusion of the term
damages of whatever kind in
determining the jurisdictional
amount under Sec. 19(8) and Sec.
33 (1) of BP 129, as amended by
RA 7691, applies to cases where the
damages are merely incidental to or
a consequence of the main cause of
action. However, if the claim for
damages is the main cause of
action, or one of the causes of
action, the amount of such claim
shall be considered in determining
the jurisdiction of the court.[Admin
Circ. 09-94]
4. All actions involving the contract of
marriage and family relations
JURISDICTION OF FAMILY COURTS
(RA 8369)
a. Petitions for guardianship, custody
of children and habeas corpus
involving children
b. Petitions for adoption of children
and the revocation thereof
c. Complaints for annulment of
marriage, declaration of nullity of
marriage and those relating to
status and property relations of
husband and wife or those living
together under different status and
agreements, and petitions for
dissolution of conjugal partnership
of gains
d. Petitions for support and/or
acknowledgment
e. Summary judicial proceedings
brought under the provisions of EO
209 (Family Code)
f. Petitions for declaration of status of
children as abandoned, dependent
or neglected children, petitions for
voluntary or involuntary
commitment of children, the
suspension, termination or
restoration of parental authority
and other cases cognizable under
PD 603, EO 56 (1986) and other
related laws
g. Petitions for the constitution of the
family home
NOTE: In areas where there are no
Family Courts, the above-enumerated
cases shall be adjudicated by the RTC
(RA 8369)
5. To hear and decide intra-corporate
controversies, as per Sec. 52, Securities
and Regulations Code
a. Cases involving devises or schemes
employed by or any acts, of the
board of directors, business
associates, its officers or
partnership, amounting to fraud
and misrepresentation which may
be detrimental to the interest of the
public and/or of the stockholders,
partners, members of associations
or organizations registered with the
SEC
b. Controversies arising out of intra-
corporate or partnership relations,
between and among stockholders,
members or associates; between
any or all of them and the
corporation, partnership or
association of which they are
stockholders, members or
associates, respectively; and
between such corporation ,
partnership or association and the
state insofar as it concerns their
individual franchise or right to exist
as such entity
c. Controversies in the election or
appointments of directors, trustees,
officers or managers of such
corporations, partnerships or
associations
d. Petitions of corporations,
partnerships or associations to be
declared in the state of suspension
of payments in cases where the
corporation, partnership of
association possesses sufficient
property to cover all its debts but
foresees the impossibility of
meeting them when they
respectively fall due or in cases
where the corporation, partnership
of association has no sufficient
assets to cover its liabilities, but is
under the management of a
Rehabilitation Receiver or
Management Committee.
Concurrent Jurisdiction
1. With the Supreme Court in actions
affecting ambassadors, other public
ministers and consuls
2. With the SC and CA in petitions for
certiorari, prohibition and mandamus
against lower courts and bodies in
petitions for quo warranto, habeas
11
corpus, and writ of continuing
mandamus on environmental cases
3. With the SC, CA and Sandigabayan in
petitions for writs of habeas data and
amparo
4. With Insurance Commissioner claims
not exceeding P100,000
Appellate Jurisdiction over cases decided by
lower courts in their respective territorial
jurisdictions EXCEPT decisions of lower courts in
the exercise of delegated jurisdiction.
Special Jurisdiction - SC may designate certain
branches of RTC to try exclusively criminal
cases, juvenile and domestic relations cases,
agrarian cases, urban land reform cases not
falling within the jurisdiction of any quasi-
judicial body and other special cases in the
interest of justice.
JURISDICTION OF THE SHARIA COURTS
Exclusive Jurisdiction
1. All cases involving custody,
guardianship, legitimacy, paternity and
filiation arising under the Code of
Muslim Personal Laws;
2. All cases involving disposition,
distribution and settlement of estate of
deceased Muslims, probate of wills,
issuance of letters of administration of
appointment administrators or
executors regardless of the nature or
aggregate value of the property;
3. Petitions for the declaration of absence
and death for the cancellation and
correction of entries in the Muslim
Registries;
4. All actions arising from the customary
contracts in which the parties are
Muslims, if they have not specified
which law shall govern their relations;
and
5. All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus
and all other auxiliary writs and
processes in aid of its appellate
jurisdiction
Concurrent Jurisdiction
1. Petitions of Muslim for the constitution
of the family home, change of name and
commitment of an insane person to an
asylum
2. All other personal and legal actions not
mentioned in par 1 (d) wherein the
parties involved are Muslims except
those for forcible entry and unlawful
detainer, which shall fall under the
exclusive jurisdiction of the MTC.
3. All special civil actions for interpleader
or declaratory relief wherein the parties
are Muslims or the property involved
belongs exclusively to Muslims
Cases Cognizable
1. Offenses defined and punished under
PD 1083
2. Disputes relating to:
a. Marriage
b. Divorce
c. Betrothal or breach of contract to
marry
d. Customary dowry (mahr)
e. Disposition and distribution of
property upon divorce
f. Maintenance and support and
consolatory gifts (muta)
g. Restitution of marital rights
3. Disputes relative to communal
properties
NOTE: The Sharia District Court or the Sharia
Circuit Court may constitute an Agama
Arbitration Council to settle certain cases
amicably and without formal trial.
The Council is composed of the Clerk of Court as
Chairperson and a representative of each of the
conflicting parties.
JURISDICTION OF THE
SANDIGANBAYAN
Original Jurisdiction in all cases involving:
1. Violations of RA 3019 (Anti-Graft and
Corrupt Practices Act)
2. Violations of RA 1379 (Anti-Ill-Gotten
Wealth Act)
3. Sequestration cases (E.O. Nos.
1,2,14,14-A)
4. Bribery (Chapter II, Sec. 2, Title VII,
Book II, RPC) where one or more of the
principal accused are occupying the
following positions in the government,
whether in permanent, acting or
interim capacity at the time of the
commission of the offense:
a. Officials of the executive branch
occupying the positions of regional
director and higher, otherwise
classified as Grade 27 and higher, of
the Compensation and Position
Classification Act of 1989 (RA
6758)
12
b. Members of Congress and officials
thereof classified as G-27 and up
under RA 6758
c. Members of the Judiciary without
prejudice to the provisions of the
Constitution
d. Chairmen and Members of the
Constitutional Commissions
without prejudice to the provisions
of the Constitution
e. All other national and local officials
classified as Grade 27 and higher
under RA 6758
f. Other offenses or felonies
committed by the public officials
and employees mentioned in Sec.
4(a) of RA 7975 as amended by RA
8249 in relation to their office
g. Civil and criminal cases filed
pursuant to and in connection with
EO Nos. 1, 2, 14-A (Sec. 4, RA 8249)
NOTE: Without the office, the crime
cannot be committed.
Appellate Jurisdiction Over final judgments,
resolutions or orders of the RTC whether in the
exercise of their original or appellate
jurisdiction over crimes and civil cases falling
within the original exclusive jurisdiction of the
Sandiganbayan but which were committed by
public officers below Salary Grade 27.
Concurrent Original Jurisdiction with SC, CA,
and RTC for petitions for writs of habeas data
and amparo
NOTE: The requisites that the offender the
offender occupies salary Grade 27 and the
offense must be intimately connected with the
official function must concur for the SB to have
jurisdiction
JURISDICTION OF THE COURT OF TAX
APPEALS
UNDER RA 9282 and RULE 5, AM 05-11-07 CTA
Exclusive Original or Appellate Jurisdiction
to Review by Appeal:
1. Decisions of CIR in cases involving
disputed assessments, refunds of
internal revenue taxes, fees or other
charges, penalties in relation thereto, or
other matters arising under the NIRC or
other laws administered by BIR;
2. Inaction by CIR in cases involving
disputed assessments, refunds of IR
taxes, fees or other charges, penalties in
relation thereto, or other matters
arising under the NIRC or other laws
administered by BIR, where the NIRC or
other applicable law provides a specific
period of action, in which case the
inaction shall be deemed an implied
denial;
3. Decisions, orders or resolutions of the
RTCs in local taxes originally decided or
resolved by them in the exercise of their
original or appellate jurisdiction;
4. Decisions of the Commissioner of
Customs
a. in cases involving liability for
customs duties, fees or other
charges, seizure, detention or
release of property affected, fines,
forfeitures or other penalties in
relation thereto, or
b. other matters arising under the
Customs law or other laws, part of
laws or special laws administered
by BOC;
5. Decisions of the Central Board of
Assessment Appeals in the exercise of
its appellate jurisdiction over cases
involving the assessment and taxation
of real property originally decided by
the provincial or city board of
assessment appeals;
6. Decision of the secretary of Finance on
customs cases elevated to him
automatically for review from decisions
of the Commissioner of Customs which
are adverse to the government under
Sec. 2315 of the Tariff and Customs
Code;
7. Decisions of Secretary of Trade and
Industry in the case of non-agricultural
product, commodity or article, and the
Secretary of Agriculture in the case of
agricultural product, commodity or
article, involving dumping duties and
counterveiling duties under Secs. 301
and 302, respectively, of the Tariff and
Customs Code, and safeguard measures
under RA 8800, where either party may
appeal the decision to impose or not to
impose said duties.
Exclusive Original Jurisdiction
1. Over all criminal cases arising from
violation of the NIRC and the TCC and
other laws, part of laws, or special laws
administered by the BIR or the BOC
where the principal amount of taxes
13
and fees, exclusive of charges and
penalties claimed is less than P1M or
where there is no specified amount
claimed (the offenses or penalties shall
be tried by the regular courts and the
jurisdiction of the CTA shall be
appellate);
2. In tax collection cases involving final
and executory assessments for taxes,
fees, charges and penalties where the
principal amount of taxes and fees,
exclusive of charges and penalties
claimed is less than P1M tried by the
proper MTC, MeTC and RTC.
Exclusive Appellate Jurisdiction
1. In criminal offenses
a. Over appeals from the judgment,
resolutions or orders of the RTC in
tax cases originally decided by
them, in their respective territorial
jurisdiction, and
b. Over petitions for review of the
judgments, resolutions or orders of
the RTC in the exercise of their
appellate jurisdiction over tax cases
originally decided by the MeTCs,
MTCs, and MCTCs in their
respective jurisdiction.
2. In tax collection cases
a. Over appeals from the judgments,
resolutions or orders of the RTC in
tax collection cases originally
decided by them in their respective
territorial jurisdiction; and
b. Over petitions for review of the
judgments, resolutions or orders of
the RTC in the exercise of their
appellate jurisdiction over tax
collection cases originally decided
by the MeTCs, MTCs and MCTCs in
their respective jurisdiction.
JURISDICTION OF THE COURT OF
APPEALS
JURISDICTION OF THE COURT OF APPEALS IN
CIVIL CASES
Exclusive Original Jurisdiction in actions for
annulment of judgments of the RTC
Concurrent Original Jurisdiction
1. With SC to issue writs of certiorari,
prohibition and mandamus against the
RTC, CSC, CBAA, other quasi-judicial
agencies mentioned in Rule 43, and the
NLRC (however, this should be filed
first with the CA as per St. Martin
Funeral Home case), and writ of
kalikasan.
2. With the SC and RTC to issue writs of
certiorari, prohibition and mandamus
against lower courts and bodies and
writs of quo warranto, habeas corpus,
whether or not in aid of its appellate
jurisdiction, and writ of continuing
mandamus on environmental cases.
3. With SC, RTC and Sandiganbayan for
petitions for writs of amparo and
habeas data where the action involves
public data or government office
Exclusive Appellate Jurisdiction
1. By way of ordinary appeal from the RTC
and the Family Courts.
2. By way of petition for review from the
RTC rendered by the RTC in the
exercise of its appellate jurisdiction.
3. By way of petition for review from the
decisions, resolutions, orders or awards
of the CSC, CBAA and other bodies
mentioned in Rule 43 and of the Office
of the Ombudsman in administrative
disciplinary cases.
4. Over decisions of MTCs in cadastral or
land registration cases pursuant to its
delegated jurisdiction; this is because
decisions of MTCs in these cases are
appealable in the same manner as
decisions of RTCs.
JURISDICTION OF THE SUPREME
COURT
JURISDICTION OF THE SUPREME COURT IN
CIVIL CASES
Exclusive Original Jurisdiction in petitions for
certiorari, prohibition and mandamus against
the CA, COMELEC, COA, CTA, Sandiganbayan
Concurrent Original Jurisdiction
1. With Court of Appeals in petitions for
certiorari, prohibition and mandamus
against the RTC, CSC, Central Board of
Assessment Appeals, NLRC, Quasi-
judicial agencies, and writ of kalikasan,
all subject to the doctrine of hierarchy
of courts.
2. With the CA and RTC in petitions for
certiorari, prohibition and mandamus
against lower courts and bodies and in
petitions for quo warranto, and writs of
habeas corpus, all subject to the
doctrine of hierarchy of courts.
14
3. With CA, RTC and Sandiganbayan for
petitions for writs of amparo and
habeas data
4. Concurrent original jurisdiction with
the RTC in cases affecting ambassadors,
public ministers and consuls.
Appellate Jurisdiction
1. By way of petition for review on
certiorari (appeal by certiorari under
Rule 45) against CA, Sandiganbayan,
RTC on pure questions of law and CTA
in its decisions rendered en banc.
2. In cases involving the constitutionality
or validity of a law or treaty,
international or executive agreement,
law, presidential decree, proclamation,
order, instruction, ordinance or
regulation, legality of a tax, impost,
assessment, toll or penalty, jurisdiction
of a lower court; and
3. All cases in which the jurisdiction of any
court is in issue;
4. All cases in which an error or question
of law is involved
5. The SC may resolve factual issues in
certain exceptional circumstances
(Josefa v. Zhandong, 2003)
a. The conclusion is grounded on
speculations/ surmises
/conjectures
b. The inference is manifestly
mistaken/absurd/impossible;
c. There is grave abuse of discretion;
COMMENCEMEN
T OF ACTIONS TO
TRIAL
ACTIONS
ACTIONS IN GENERAL: An ordinary suit in a
court of justice by which one party prosecutes
another for the enforcement/ protection of a
right or the prevention/redress of a wrong
[Santos v. Vda. De Caparas, (1959)]
An action is a formal demand of ones legal
rights in a court of justice in the manner
prescribed by the court or by the law.
Determinative fact which converts a claim into
an action or suit is the filing of the same with a
court of justice. (Herrera)
d. The judgment is based on a
misapprehension of facts;
e. The findings of fact are conflicting;
f. There is no citation of specific
evidence on which the factual
findings are based;
g. The finding of absence of facts is
contradicted by the presence of
evidence on record;
h. The findings of the CA are contrary
to those of the trial court;
i. The CA manifestly overlooked
certain relevant and undisputed
facts that, if properly considered,
would justify a different conclusion;
j. The findings of the CA are beyond
the issues of the case;
k. Such findings are contrary to the
admissions of both parties.
TOTALITY RULE
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 claims of action, irrespective of
whether the causes of action arose out of the
same or different transactions (Sec. 33[1], BP
129).
Action v. Cause of Action
CAUSE OF ACTION ACTION
A cause of action is the
Ordinary suit in a
basis of the action filed
[Rule 2, Sec.1]
court of justice, by
which one party
prosecutes another for
Fact or combination of
the enforcement or
facts which affords a
party a right to judicial
protection of a right,
or the prosecution or
interference in his
redress of a wrong
behalf. [Into v. Valle
(2005)]
Kinds of Action
1. Civil or Criminal
a. Civil one by which a party sues
another for the enforcement or
protection of a right, or the
prevention or redress of a wrong
b. Criminal one by which the State
prosecutes a person for an act or
omission punishable by law
15
2. Ordinary or Special both are governed
by the rules of ordinary civil actions,
subject to the specific rules prescribed
for a special civil action
a. Special
b. Ordinary may be classified as:
(1) As to place
(a) Transitory action founded
on privity of contract
between parties; brought in
the place where the party
resides
(b) Local action founded on
privity of estate only and
there is no privity of
contract; brought in a
particular place
(2) As to object or against which
the action is directed, actions
may be classified as:
(a) In personam;
(b) In rem; or
(c) Quasi in rem
(3) As to cause or foundation
(a) Real, or
(b) Personal
ORDINARY CIVIL ACTIONS: An ordinary civil
action is one that is governed by the rules for
ordinary civil actions [Rule 1, Sec. 3(a) par 2]
SPECIAL CIVIL ACTIONS: A special civil action
is one that is subject to the specific rules
prescribed for a special civil action; it is also
governed by the rules for ordinary civil actions
[Rule 1, Sec. 3(a) par 2]
CRIMINAL ACTIONS: A criminal action is one by
which the State prosecutes a person for an act or
omission punishable by law. [Rule 1, Sec. 3(b)]
CIVIL ACTIONS vs. SPECIAL PROCEEDINGS
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.
[Rule 1, Sec. 3(a) par 1]
A special proceeding is a remedy by which a
party seeks to establish a status, a right, or a
particular fact. [Rule 1, Sec. 3 (c)]
Action Special Proceeding
As to Parties
Involves 2 or more Involves at least 1
parties party or 2 or more
parties in proper
cases
As to cause of action
Involves a right and a
May involve a right,
violation of such right
but there need not be
by the defendant which
a violation of this
causes some
right
damage/prejudice
upon the plaintiff
As to formalities
Requires the Requires no such
application of legal formalities, as it
remedies in may be granted upon
accordance with the application
prescribed rules
As to governing rules
Ordinary rules of Special rules of
procedure procedure
As to appeal from an interlocutory
Order
Cannot be directly and
immediately appealed Can be immediately
to the appellate court and directly appealed
until after final to the appellate court
judgment on the merits
PERSONAL ACTIONS AND REAL ACTIONS
Real Actions: Actions affecting title to or
possession of real property, or interest therein.
[Rule 4, Sec. 1 par 1]
Personal Actions: All other actions are personal
actions. [Rule 4, Sec.2]
Importance of Distinction: For purposes of
determining venue of the action (Riano)
1. Real actions 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. [Rule 4, Sec.1]
2. Personal actions may be commenced
and tried where the plaintiff or any of
the principal plaintiffs resides, or where
the defendant or any of the principal
defendants resides, or in the case of a
non-resident defendant, where he may
be found, at the election of the plaintiff.
[Rule 4, Sec.2]
NOTE: Not every action involving a real
property is a real action because the realty
may only be incidental to the subject matter
of the suit. To be a real action, it is not
enough that the action must deal with real
property. It is important that the matter in
litigation must also involve any of the
16

following issues: title to, ownership, local and must be brought in the place where the
possession, paritition, foreclosure or land lies
mortgage or any interest in real property.
(Riano)
ACTIONS IN REM, IN PERSONAM, AND QUASI
Personal IN REM
Real action Mixed action
action
Personal ACTION
ACTION IN ACTION IN
property is QUASI IN
REM PERSONAM
sought to be REM
recovered or Directed Directed
Ownership or Both real and Directed
damages for against against
possession of personal against the
breach of particular particular
real property properties thing itself
Contract or persons persons
is involved are involved
the Jurisdiction
enforcement over the
of a contract Jurisdiction person of
Jurisdiction
are sought over the defendant is
over the person
Founded on Founded on Founded on person of the not required
of defendant
privity of real privity of both defendant as long as
required
estate contract not required jurisdiction
Filed in the Filed in the over the res
court where court where is required
The rules on
the property the plaintiff or Proceeding
venue of real
(or any any of the to subject
actions
portion defendants the interest
govern
thereof) is resides, at the Action to of a named
Proceeding
situated plaintiffs impose a defendant
to determine
option responsibility over a
the state or
or liability particular
condition of a
upon a person property to
thing
LOCAL AND TRANSITORY ACTIONS directly an
obligation
Local action Transitory action or lien
One that could be One that could be burdening it
instituted in one prosecuted in any one Judgment is
specific place [Manila of several places binging only Judgment
Judgment is
Railroad v. Attorney- [Manila Railroad v. upon binging
binding on
General (1911)] Attorney-General impleaded upon
the whole
(1911)] parties or their particular
world
Its venue depends successors in persons
Venue depends upon upon the residence of interest
the location of the the plaintiff or the E.g. Action
property involved in defendant at the E.g. Specific for
E.g. Probate
the litigation (Riano) option of the plaintiff performance, partition;
proceeding,
(Riano) action for foreclosure
cadastral
breach of of real
E.g. Action to recover E.g. Action to recover proceeding
contract estate
real property sum of money mortgage

If action is founded on privity of contract
between parties, then the action is transitory
But if there is no privity of contract and the
action is founded on privity of estate only, such
as a covenant that runs with the land in the
hands of remote grantees, then the action is
The question of whether the trial court has
jurisdiction depends on the nature of the action,
i.e., whether the action is in personam, in rem, or
quasi in rem. [Riano citing Biaco v. Philippine
Countryside Rural Bank (2007)]
The distinction is important to determine
whether or not jurisdiction over the person of
the defendant is required and consequently to
17

determine the type of summons to be employed.

[Riano citing Gomez v. Court of Appeals (2004)]

INDEPENDENT CIVIL ACTIONS

Rule 111, Sec 3: When civil action may

proceeded independently. In the cases
provided for in Articles 32, 33, 34 and 2176 of
the Civil Code of the Philippines, the
independent civil action may be brought by the
offended party. It shall proceed independently of
the criminal action and shall require only a
preponderance of evidence. In no case, however,
may the offended party recover damages twice
for the same act or omission charged in the
criminal action.
18

CAUSE OF ACTION There is a failure to state a cause of action if the

pleading asserting the claim states no cause of
CAUSE OF ACTION: A cause of action is the act or action. This is a ground for a motion to dismiss.
omission by which a party violates a right of [Rule 16, Sec.1(g)]
another. [Rule 2, Sec.2]
It is submitted that the failure to state a cause of
Every ordinary civil action must be based on a action does not mean that the plaintiff has no
cause of action [Rule 2, Sec. 1] cause of action. It only means that the plaintiffs
allegations are insufficient for the court to know
A cause of action stems from the sources of that the rights of the plaintiff were violated by the
obligations under Art. 1156, CC - Law, Contract, defendant. [Riano]
Quasi-contract, Acts and omissions punishable by
law and Quasi-delict. [Sagrada Orden etc v. There is a failure to state a cause of action if
National Coconut Corporation (1952)] allegations in the complaint taken together, do not
completely spell out the elements of a particular
Elements of a Cause of Action: cause of action. [Riano]
1. Plaintiffs legal right;
2. Defendants correlative obligation to
respect plaintiffs right; A failure to state a cause of action is not the same
3. Defendants act/omission in violation of as an absence or a lack of cause of action. The
plaintiffs right [Ma-ao Sugar Central v. former refers to an insufficiency in the allegations
Barrios (1947)] of the complaint while the latter refers to the
failure to prove or to establish by evidence ones
stated cause of action. [Riano]
RIGHT OF ACTION vs. CAUSE OF ACTION
(Regalado)
TEST OF THE SUFFICIENCY OF A CAUSE OF
ACTION
Right of action
Cause of action Whether or not admitting the facts alleged, the
The remedial right or court could render a valid verdict in accordance
The delict or wrongful with the prayer of the complaint [Santos v. de Leo
right to relief granted
act or omission (2005)]
by law to a party to
committed by the
institute an action
defendant in violation
against a person who
of the primary rights of SPLITTING A SINGLE CAUSE OF ACTION;
has committed a delict
the plaintiff EFFECTS
or wrong against him
Right to sue as a
consequence of the The delict or wrong Definition: The act of instituting two or more suits
delict on the basis of the same cause of action. [Rule 2,
Determined by the Sec.4]
Whether such acts give
averments in the
him right of action The act of dividing a single or indivisible cause of
pleading regarding the
determined by action into several parts or claims and bringing
acts committed by the
substantive law several actions thereon. (Regalado)
defendant

There can be no right of action without a cause of The test of singleness of cause of action lies in the
action being first established [Regalado citing singleness of the delict or wrong violating the
Espaol v. The Chairman of PVA (1985)] rights of one person.

For a single cause of action or violation of a right,

FAILURE TO STATE CAUSE OF ACTION the plaintiff may be entitled to several reliefs. It is
the filing of separate complaints for these several
reliefs that constitutes splitting up of the cause of
19
action which is proscribed by Rule 2, Sec. 3 and 4.
[City of Bacolod v. SM Brewery (1969)]
Effects:
1. The filing of one or a judgment upon the
merits in any one is available as a ground
for the dismissal of the others. [Rule 2,
Sec.4]
2. Filing of the 1st complaint may be
pleaded in abatement of the 2nd
complaint, on the ground of litis
pendentia; or
3. A judgment upon the merits in any of the
complaints is available as ground for
dismissal of the others based on res
judicata.
4. A Motion to Dismiss under Rule 16 (litis
pendentia or res judicata) may be filed in
order that the complaint may be
dismissed.
Ratio: A party may not institute more than one
suit for a single cause of action. [Rule 2, Sec. 3]
1. To prevent repeated litigation between
the same parties in regard to the same
subject or controversy;
2. To protect the defendant from
unnecessary vexation. Nemo debet vexare
pro una et eadem causa (No man shall be
twice vexed for one and the same cause);
3. To avoid the costs and expenses incident
to numerous suits. [City of Bacolod v. SM
Brewery (1969)]
JOINDER OF CAUSES OF ACTION
It is the assertion of as many causes of action as a
party may have against another in one pleading
alone. It is also the process of uniting 2 or more
demands or rights of action in one action. [Riano
citing Rule 2, Sec. 5 and CJS]
By a joinder of actions, or more properly, a joinder
of causes of action is meant the uniting of two or
more demands or rights of action in one action,
the statement of more than one cause of action in
a declaration [Ada v. Baylon (2012)]
SPLITTING OF CAUSES JOINDER OF CAUSES
There is a single cause Contemplates several
of action causes of action
Prohibited Encouraged
It causes multiplicity of It minimizes
suits and double multiplicity of suits
vexation on part of and inconvenience on
defendant the parties
Ratio: To avoid a multiplicity of suits and to
expedite disposition of litigation at minimum cost
[Ada v. Baylon (2012)]
The rule however is purely permissive as the
plaintiff can always file separate actions for each
cause of action. [Baldovi v. Sarte, (1917)]
Joinder shall not include special civil actions
governed by special rules. [Ada v. Baylon (2012)]
Requisites [Rule 2, Sec. 5]:
1. The party joining the causes of action
must comply with the rules on joinder of
parties;
2. The joinder shall not include special civil
actions or actions governed by special
rules;
3. Where causes of action are between the
same parties but pertain to different
venues/jurisdictions, the joinder may be
allowed in the RTC provided one of the
causes of action are within the RTCs
jurisdiction and the venue lies therein;
4. TOTALITY RULE - Where the claims in all
the causes of action are principally for
recovery of money, the aggregate amount
claimed shall be the test of jurisdiction.
MISJOINDER OF CAUSES OF ACTION (Rule 2, Sec.
6)
Misjoinder of causes of action is not a ground for
dismissal of an action. A misjoined cause of action
may, on motion or motu propio, be severed and
proceeded with separately. However, if there is
no objection to the improper joinder or the court
did not motu proprio direct a severance, then
there exists no bar in the simultaneous
adjudication of all the erroneously joined causes
of action. However, this rule exists only when the
court trying the case has jurisdiction over all of
the causes of action therein notwithstanding the
misjoinder of the same. This is because if the court
has no jurisdiction to try the misjoined action,
then the same must be severed and if not so
severed, any adjudication rendered by the court
with respect to the same would be a nullity. [Ada v.
Baylon (2012)]
20

There is no sanction against non-joinder of

separate causes of action since a plaintiff needs
only a single cause of action to maintain an action
(Regalado).

In case of misjoinder of causes of action, the cause

of action erroneously joined need only be
separated and dismissed, without affecting the
action with regard to other causes of action
(Regalado).
21

PARTIES TO CIVIL ACTIONS cause of action. [Rule

16 (1) (g)]
REQUIREMENTS FOR A PERSON TO BE A
PARTY TO A CIVIL ACTION: Real- Party in Interest

For a Person to be a Party to a Civil Action:
1. He must be a natural or juridical person
or an entity authorized by law
2. He must have legal capacity to sue; and
3. He must be the real party-in-interest
A party must be a natural or juridical person or
an entity authorized by law
- Only natural and juridical persons may
be parties
- See Art. 44, NC
- Entities authorized by law may also be
parties, e.g.:
a. Partnership has a juridical
personality separate and distinct
from that of each of the partners,
even in case of failure to comply
with the requirements in Art 1772
NCC (Art. 1768 NCC)
b. Labor organizations organized in
accordance with law may file a
complaint or petition in court in
representation of its members (Art
242 LC)
c. As to properties of the Roman
Catholic Church, the Archbishop or
diocese to which they belong may be
a party (Ponce v. Roman Catholic)
Legal Capacity to Sue
Interest within the meaning of the Rules of
Court means material interest or an interest in
issue to be affected by the decree or judgment of
the case, as distinguished from mere curiosity
about the question involved. [Ang v. Sps. Ang
(2012)]
PARTIES TO A CIVIL ACTION
Plaintiff one having an interest in the matter of
the action or in obtaining the relief demanded.
The term may either refer to the claiming party,
counter-claimant, cross-claimant, or third-party
plaintiff
Defendant one claiming an interest in the
controversy or the subject thereof adverse to
the plaintiff. Term may also include:
1. An unwilling co-plaintiff or one who
should be joined as plaintiff but refuses
to give his consent thereto (Sec. 10, Rule
3)
2. The original plaintiff becoming a
defendant to the original counterclaim
of defendant; and
3. One necessary to a complete
determination or settlement of the
questions involved therein

Legal capacity to sue or be sued means that the
party is free from general disability (e.g.
minority or insanity) or, in case of juridical
entities, that it must be duly registered in
accordance with law
Under Sec. 4, Rule 8, legal capacity to sue must
be averred
REAL PARTIES IN INTEREST
Who is a real party-in-interest: (Rule 3, Sec. 2)
1. The party who stands to be
benefited/injured by the judgment in
the suit;
2. The party entitled to the avails of the
suit.

Lack of legal capacity Lack of legal Rules:

to sue personality to sue 1. Every action must be prosecuted or
The plaintiffs general defended in the name of the real party
disability to sue, such in interest. [Rule 3, Sec.2]
as on account of 2. The partys interest must be direct,
The plaintiff is not the substantial and material [Sumalo v.
minority, insanity,
real party in interest Litton (2006)].
incompetence, lack of
juridical personality or 3. Husband and wife shall sue and be sued
any other general jointly, except as provided by law [Rule
disqualifications 3, Sec. 4]
It can be used as 4. A minor or a person alleged to be
It can be a ground for a incompetent may sue or be sued, with
ground for a MTD
MTD [Rule 16 (1) (d)] the assistance of his father, mother,
based on the failure of
complaint to state a
22

guardian, or if he has none, a guardian

ad litem. [Rule 3, Sec. 5] REPRESENTATIVE AS PARTIES
5. Minors (represented by their parents)
are real parties in interest under the Who: Those acting in fiduciary capacity, such as
principle of intergenerational a trustee/guardian/executor/administrator or a
responsibility. [Oposa v. Factoran party authorized by law or ROC. (Rule 3, Sec. 3)
(1993)]
6. If a party becomes incompetent/ The beneficiary shall be included in the title of
incapacitated during the pendency of the case and shall be deemed to be the real party
the action, the action survives and may in interest.
be continued by/against the
incompetent/ incapacitated assisted by General Rule: An agent acting in his own name
his legal guardian or guardian ad litem and for the benefit of an undisclosed principal
[Rule 3, Sec. 18] may sue or be sued without joining the
principal.
Failure to Name Real Party in Interest
a. Effect: a motion to dismiss may be filed Exception: If the contract involves things
on the ground that the complaint states belonging to the principal. [Art. 1883, CC]
no cause of action
(a) If a complaint is filed for and in
behalf of a plaintiff who is not NECESSARY PARTIES
authorized to do so, the complaint
is not deemed filed Who: One who is not indispensable but ought to
b. Remedies: be joined as a party if complete relief is to be
(1) Amendment of pleadings (Alonso v. accorded as to those already parties, or for a
Villamor, 1910); or complete determination or settlement of the
(2) Complaint may be deemed claim subject of the action (Rule 3, Sec. 8)
amended to include the real party-
in-interest (Balquidra v. CFI Capiz, Indispensable parties v. Necessary parties
1977)
c. Exception: A real litigant may be held Indispensable parties Necessary parties [Rule
bound as a party even if not formally [Rule 3, Sec. 7] 3, Sec. 8]
impleaded provided he had his day in Must be joined under Should be joined
court (Albert v. University Publishing Co., any and all whenever possible; the
1958) conditions, his action can proceed
presence being a sine even in their absence
INDISPENSABLE PARTIES qua non for the because their interest
exercise of judicial is separable from that
Who: An indispensable party is a real party-in- power of the indispensable
interest without whom no final determination party
can be had of an action. [Rule 3, Sec.7] No valid judgment if The case may be
indispensable party is determined in court
A party who has such an interest in the not joined. but the judgment
controversy or subject matter that a final therein will not resolve
adjudication cannot be made, in his absence, the entire controversy
without injuring or affecting that interest. if a necessary party is
[Riano] not joined
They are those with They are those whose
The joinder of a party becomes compulsory such an interest in the presence is necessary
when the one involved is an indispensable party. controversy that a to adjudicate the whole
[Riano citing Rule 3, Sec.7] final decree would controversy but whose
necessarily affect interests are so far
A person is NOT an indispensable party if his their rights so that the separable that a final
interest in the controversy or subject matter is court cannot proceed decree can be made in
separable from the interest of the other parties, without their their absence without
so that it will not necessarily be directly or presence. affecting them.
injuriously affected by a decree which does not
complrete justice between them. [Riano]
23
Whenever in any pleading in which a claim is
asserted a necessary party is not joined, the
pleader is under obligation to:
1. Set forth the name of the necessary
party, if known, and
2. State the reason why the necessary
party is omitted. [Riano citing Rule 3,
Sec. 9 par 1]
The non-inclusion of a necessary party does not
prevent the court from proceeding in the action,
and the judgment rendered therein shall be
without prejudice to the rights of such necessary
party [Rule 3, Sec. 9 par 3]
INDIGENT PARTIES
Who: An indigent is one who has no money or
property sufficient and available for food,
shelter, and basic necessities (Rule 3, Sec. 21)
Authority to Litigate as Indigent Party
- May be granted upon an ex parte
application and hearing
- It shall include an exemption from
payment of docket and other lawful fees
(e.g. fees for TSN)
NOTE: The amount of docket and other
lawful fees is a lien on any judgment
rendered in favor of indigent party,
unless court otherwise provides.
Adverse party may contest: Authority may be
contested by the adverse party at any time
before judgment is rendered
- If the court determines after hearing
that the party declared indigent has
sufficient income or property, the
proper docket and other lawful fees
shall be assessed and collected by the
clerk of court
ALTERNATIVE DEFENDANTS
Where the plaintiff is uncertain against whom of
several persons he is entitled to relief, he may
join any or all of them in the alternative,
although a right to relief against one may be
inconsistent with a right to relief against the
other. (Rule 3, Sec. 13)
COMPULSORY AND PERMISSIVE JOINDER OF
PARTIES
Compulsory Joinder of Indispensable Parties
(Rule 3, Sec. 7) - Parties in interest without
whom no final determination can be had of an
action shall be joined either as plaintiffs or
defendants
Joinder of INDISPENSABLE PARTIES are
mandatory
Effect of Absence of Indispensable Parties:
1. It is the duty of the court to stop the
trial and to order the inclusion of such
party (Cortez v. Avila). Such an order is
unavoidable
2. Absence of an indispensable party
renders all subsequent actuations of the
court null and void, for want of
authority to act, not only as to the
present parties but even as to those
present
Permissive Joinder (Rule 3, Sec. 6) - Parties can
be joined, as plaintiffs or defendants, in one
single complaint or may themselves maintain or
be sued in separate suits.
Requisites of Permissive Joinder:
1. Right to relief arises out of the same
transaction or series of transactions
a. Transaction - not only a stipulation
or agreement but any event
resulting in wrong, without regard
to whether the wrong has been
done by violence, neglect, or breach
of contract
b. Series of transaction transactions
connected with the same subject of
the action
2. There is a question of law or fact
common to all the plaintiffs or
defendants
3. Such joinder is not otherwise
proscribed by the rules on jurisdiction
and venue
Distinguished from Joinder of Causes of Action
- In joinder of causes of action, it is
enough if the cause of action arises out
of the same contract
- Unlike permissive joinder of parties, in
joinder of causes of action, there is no
need for a common question of fact or
law
MISJOINDER AND NON-JOINDER OF PARTIES
24

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 in the action.
(Riano)
Effect:
1. Neither misjoinder nor non-joinder of
parties is a ground for dismissal of an
action. [Rule 3, Sec. 11]
a. Non-joinder of an indispensable
party is not a ground for outright
dismissal. Reasonable opportunity
must be given for his inclusion by
amendment of the complaint
[Cortez v Avila (1957)].
b. In case of non-joinder of a
necessary party, if the court should
find the reason for such omission
unmeritorious, it may order the
inclusion of such omitted necessary
party
2. Parties may be dropped or added by
order of the court on motion of any
party or on its own initiative at any
stage of the action and on such terms as
are just. [Rule 3, Sec.11]
Objections to defects in parties: Objections to
defects in parties should be made at the earliest
opportunity.
- The moment such defect becomes
apparent, a motion to strike the names
of the parties must be made.
- Objections to misjoinder cannot be
raised for the first time on appeal
[Lapanday Agricultural & Development
Corporation v. Estita (2005)]
Any party in interest shall have the right to
intervene to protect his individual interest.
[Rule 3, Sec. 12]
If a class suit is improperly brought, the action is
subject to dismissal regardless of the cause of
action [Rule 16, Sec 1 (d)].
A taxpayer's suit or a stockholder's derivative
suit is in the nature of a class suit, although
subject to the other requisites of the
corresponding governing law especially on the
issue of locus standi. [Regalado]
There is no class suit in an action filed by
associations of sugar planters to recover
damages in behalf of individual sugar planters
for an allegedly libelous article in an
international magazine. There is no common or
general interest in reputation of a specific
individual. Each of the sugar planters has a
separate and distinct reputation in the
community not shared by the others. [Riano
citing Newsweek, Inc. v. Intermediate Appellate
court (1986)]
A class suit does not require a commonality of
interest in the questions involved in the suit.
What is required by the Rules is a common or
general interest in the subject matter of the
litigation. [Riano citing Mathay v. Consolidated
Bank &Trust Company (1974)]
Class Suit Permissive Joinder of
Parties
There is a single cause There are multiple
of action pertaining to causes of action
numerous persons. separately belonging
to several persons.

CLASS SUIT Class Suit Derivative Suit

Requisites: (Rule 3, Sec. 12) An action brought by

1. Subject matter of the controversy is one When the subject
of common/general interest to many matter of the
persons; controversy is one of
2. The persons are so numerous that it is common or general
impracticable to join them all as parties interest to many
(i.e. impracticable to bring them all persons, and the
before the court); parties are so
3. Parties bringing the class suit are numerous that it is
sufficiently numerous and impracticable to bring
representative of the class and can fully them all before the
protect the interests of all concerned; court, one or more
4. The representative sues/defends for the may sue or defend for
benefit of all. the benefit of all. [Rule
3, Sec. 12]
minority shareholders
in the name of the
corporation to redress
wrongs committed
against it, for which
the directors refuse to
sue.
It is a remedy
designed by equity
and has been the
principal defense of
the minority
shareholders against
abuses by the
25
majority.
In a derivative action,
the real party in
interest is the
corporation itself, not
the shareholders who
actually instituted it
[Lim v. Lim Yu (2001))
SUITS AGAINST ENTITES WITHOUT
JURIDICAL PERSONALITY
Requisites: (Rule 3, Sec. 15)
1. There are 2 or more persons not
organized as a juridical entity;
2. They enter into a transaction;
3. A wrong is committed against a 3rd
person in the course of such
transaction.
Effect: Persons associated in an entity without
juridical personality may be sued under the
name by which they are generally/commonly
known, but they cannot sue under such name.
[Rule 3, Sec. 15]
The service of summons may be effected upon
all the defendants by serving upon any of them,
or upon the person in charge of the office or
place of business maintained under such name.
[Rule 14, Sec. 8]
EFFECT OF DEATH OF PARTY LITIGANT
Survival or Death of Action
The question as to whether an action survives or
not depends on the nature of the action and the
damage sued for
1. Causes of Action that SURVIVE the
decedent
a. The wrong complained of affects
primarily and principally property
and property rights
b. Injuries to the person are merely
incidental
c. E.g. Purely personal actions like
support
3. Causes of Action which DO NOT
SURVIVE
a. The injury complained of is to the
person
b. Property and property rights
affected are incidental
c. E.g. actions to recover real and
personal property or to enforce
liens thereon
Substitution of Parties: For causes of action that
survive the death of the party, there is
substitution of parties
Counsels duty:
1. Inform court within 30 days after such
death of the fact thereof;
2. Give the name and address of the legal
representatives.
NOTE: Failure to comply with this duty
is a ground for disciplinary action.
Courts duty: in case of death, the court if the
action survives, shall order, upon proper notice,
the legal representative of the deceased to
appear and to be substituted for the deceased
within a period of 30 days or within such time as
may be granted.
- If there is notice of death, court should
await appointment of legal
representative; otherwise, subsequent
proceedings are void. Period of filing of
brief is suspended.
If no legal representative is named or if the one
so name shall fail to appear within the specified
period, the court may order the opposing party
to procure the appointment of an executor or
administrator for the estate.
The substitute defendant need not be
summoned. The order of substitution shall be
served upon the parties substituted for the court
to acquire jurisdiction over the substitute party
[Ferreria v Vda de Gonzales (1986)].
Death or separation of a party who is a public
officer [Rule 3, Sec. 17]
Requisites:
1. Public officer is a party to an action in
his official capacity;
2. During the pendency of the action, he
either dies/resigns or otherwise ceases
to hold office;
3. It is satisfactorily shown to the court by
any party, within 30 days after the
successor takes office, that there is a
substantial need to continue/maintain
the action and
26

4. The successor adopts/continues (or
threatens to do so) his predecessors
action
5. The party or officer affected was given
reasonable notice of the application
therefore and accorded an opportunity
to be heard.
Rule 3, Sec. 16, and the action will continue until
the entry of final judgment.
However, execution shall not issue in favor of
the winning plaintiff. It should be filed as a claim
against the decedents estate without need of
proving the claim.

Action on Contractual Money Claims [Rule 3, Transfer of Interest During Pendency of Action
Sec. 20] [Rule 3, Sec. 19]

Requisites: General rule: The rule does not consider the

1. The action must primarily be for transferee an indispensable party. Hence, the
recovery of money/debt or interest action may proceed without the need to implead
thereon; him.
2. The claim arose from express/implied
contract; Exception: When the substitution by or joinder
3. Defendant dies before the entry of final of the transferee is ordered by court.
judgment in the court in which the
action was pending. The case will be dismissed if the plaintiffs
4. The defendants death will not result in interest is transferred to defendant unless there
the dismissal of the action. are several plaintiffs, in which case the
remaining plaintiffs can proceed with their own
The deceased shall be substituted by his legal cause of action.
representatives in the manner provided for in
VENUE Establishes a relation
between plaintiff and Establishes a relation
Venue is the place, or the geographical area defendant, or between the court and
where an action is to be filed and tried. In civil petitioner and the subject matter
cases, it relates only to the place of the suit and respondent
not to the jurisdiction of the court. [Riano citing Not a ground for a
Lack of jurisdiction
Manila Railroad Company v. Attorney General motu propio dismissal
over the subject
(1911)] (except in cases of
matter is a ground for
summary procedure;
a motu proprio
Choosing the venue of an action is not left to a Rule 4, Rule on
dismissal.
plaintiffs caprice; the matter is regulated by the Summary Procedure)
Rules of Court. [Ang v. Sps. Ang (2012)]

VENUE OF REAL ACTIONS

VENUE VERSUS JURISDICTION
1.
Venue Jurisdiction
Place where the action Power of the court to
is instituted hear and decide a case
Jurisdiction over the 2.
subject matter and
over the nature of the
May be waived
action is conferred by
law and cannot-be
waived
Procedural Substantive
Is fixed by law and 3.
May be changed by the
cannot be the subject
written agreement of
of the agreement of
the parties
the parties
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. [Rule 4, Sec. 1(1)]
Forcible entry and detainer actions
shall be commenced and tried in the
municipal court of the municipality or
city wherein the real property involved,
or a portion thereof, is situated. [Rule 4,
Sec. 1(2)]
If the property is located at the
boundaries of 2 places, file the case in
either place (at the plaintiffs option).
27
4. If the case involves 2 properties located
in 2 different places:
a. If the properties are the object of
the same transaction, file it in any
of the 2 places;
b. If they are the objects of 2 distinct
transactions, separate actions
should be filed in each place unless
properly joined.
VENUE OF PERSONAL ACTIONS
At the plaintiffs election: [Rule 4, Sec. 2]
1. Where the plaintiff or any of the
principal plaintiffs resides;
2. Where the defendant or any of the
principal defendants resides;
3. In case of a non-resident-defendant,
where he may be found.
NOTE: The plaintiff or the defendant must be
residents of the place where the action has been
instituted at the time the action is commenced.
[Ang v. Sps. Ang (2012)]
The residence of a person is his personal, actual
or physical habitation or his actual residence or
place of abode, which may not necessarily be his
legal residence or domicile provided he resides
therein with continuity and consistency.
[Boleyley v. Villanueva]
A corporation cannot be allowed to file personal
actions in a place other than its principal place
of business unless such place is aso the
residence of a co-plaintiff or defendant.
[Clavecilla Radio v. Antillon]
VENUE OF ACTIONS AGAINST NON-
RESIDENTS (Rule 5, Sec. 3)
Non-resident FOUND in the Philippines:
1. For personal actions Where the
plaintiff resides
2. For real actions Where the property is
located
NOTE: The alternative venues granted
to plaintiffs in Sec. 2, Rule 4 is not
available to a non-resident
Non-resident NOT FOUND in the Philippines: An
action may be filed ONLY when the case
involves:
1. Personal status of plaintiff File at the
place where plaintiff resides
2. Any property of said defendant located
in the Philippines File at the place
where the property (or any portion
thereof) is situated/found
NOTE: When there is more than one defendant
or plaintiff, the residences of the PRINCIPAL
parties should be the basis for determining
proper venue (Herrera)
WHEN THE RULES ON VENUE DO NOT APPLY
(Rule 4, Sec. 4)
Rules on Venue DO NOT apply:
1. If a specific rule/law provides
otherwise (e.g. action for damages
arising from libel);
2. If there is a stipulation as to venue
which is permitted if the parties have
validly agreed
(1) in writing
(2) before the filing of the action
(3) on the exclusive venue
EFFECTS OF STIPULATIONS ON VENUE
To be binding, the parties must have agreed on
the exclusive nature of the venue of any
prospective action between them. The
agreement of parties must be restrictive and not
permissive. [Regalado]
In the absence of qualifying restrictive words
(e.g. only/solely/exclusively in such court),
venue stipulation is merely permissive; that is,
the stipulated venue is in addition to the venue
provided for in the rules. [Polytrade Corp. v.
Blanco (1969)]
The mere stipulation on the venue of an action,
however, is not enough to preclude parties from
bringing a case in other venues. The parties
must be able to show that such stipulation is
EXCLUSIVE. In the absence of qualifying or
restrictive words, the stipulation should be
deemed as merely an agreement on an
additional forum, not as limiting venue to the
specified place. [Riano citing Spouse Lantin v.
Lantion, (2006)]
The court may declare agreements on venue as
contrary to public policy if such stipulation
unjustly denies a party a fair opportunity to file
suit in the place designated by the Rules
[Regalado, citing Hoechst Philippines v Torres
(1978)].
28

OTHER RULES ON VENUE purposes, the venue though technically wrong

may yet be considered acceptable to the parties
Improper Venue - The Court may not motu for whose convenience the rules on venue had
propio dismiss an action on the ground of been devised. Although venue is mandatory, it is
improper venue. [Dacoycoy v. IAC (1991)] waivable. [Diaz v. Adiong (1993)]

EXCEPTION: In summary procedures Means of waiving venue:

Change of Venue - The SC has the power to
change the venue to prevent a miscarriage of
justice. [Art. 8, Sec. 5, 1987 Constitution]
Waiver of Venue - Until and unless the
defendant objects to the venue in a motion to
dismiss prior to a responsive pleading, the
venue cannot truly be said to have been
improperly laid since for all intents and
PLEADINGS
1. Where parties validly agreed in writing
before the filing of the action on the
exclusive venue thereof [Rule 4, Sec 4
(b)]; and
2. Failure to raise improper venue as
affirmative defense or in motion to
dismiss
COMPLAINT(Rule 6, Sec. 3)

DEFINITION Definition - The pleading alleging the plaintiffs

cause/s of action. It should contain a concise
Pleadings are the written statements of the statement of the ultimate facts constituting the
respective claims and defenses of the parties, plaintiffs cause/s of action, not evidentiary facts
submitted to the court for appropriate judgment or legal conclusions.
[Rule 6, Sec. 1]
Contents Statement of ultimate facts on which
Pleading v. Motion the plaintiff relies for his claim:
1. It must be in a methodical and logical
PLEADING MOTION form
Purpose: to submit a Purpose: to apply for 2. Plain, concise, and direct
claim or defense for an order not included 3. Statement of mere evidentiary facts are
appropriate judgment in the judgment omitted (Rule 8, Sec. 1)
Cannot be initiatory
as they are always Function
May be initiatory 1. Its function is to inform the defendant
made in a case
already filed in court clearly and definitely of claims made
Always filed before May be filed even against him so that he may be prepared
judgment after judgment to meet the issues at trial.
Only 9 kinds of Any application for 2. It should inform the defendant of all
pleading are allowed relief not by a material facts on which the plaintiff
by the rules pleading is a motion relies to support his demand.
3. It should state the theory of a cause of
May be oral when
action which forms the bases of
made in open court or
Must be written plaintiffs claim of liability. [Tantuico v.
in the course of a
Republic (1991)]
hearing or trial

Ultimate Facts - Essential facts constituting the

KINDS OF PLEADINGS
plaintiffs cause of action. A fact is essential if it
cannot be stricken out without leaving the
Kinds of Pleadings Allowed (Rule 6, Sec. 2)
statement of the cause of action insufficient.
1. Complaint
[Remitere v. Montinola (1966)]
2. Answer
3. Counterclaim
Non-Ultimate Facts:
4. Cross-claim
1. Evidentiary or immaterial facts;
5. 3rd-party Complaint
2. Legal conclusions, conclusions or
6. Complaint-in-intervention
inferences of facts from facts not stated,
7. Reply
or incorrect inferences or conclusions
from facts stated;
29
3. Conclusions of law alleged in the
complaint are not binding on the court.
4. The details of probative matter or
particulars of evidence, statements of
law, inferences and arguments.
Test of Sufficiency of the Facts alleged in the
Complaint: WON upon the averment of facts, a
valid judgment may be properly rendered
[Pamintan v. Costales (1914)].
ANSWER (Rule 6, Sec. 4)
Definition - The pleading where the defendant
sets forth his affirmative/negative defenses. It
may also be the response to a counterclaim or a
cross-claim.
Two kinds of Defenses that may be set forth in the
Answer (Rule 6, Sec. 5)
1. Negative Defenses - Specific denials of
the material facts alleged in the
pleading of the claimant essential to his
cause of action.
A denial is not specific just because
it is so qualified (Agton v. CA)
A general denial will be deemed an
admission of the averments in the
complaint; it has to be specific
Modes of Denial (Sec. 10, Rule 8)
a. Defendant must specify each
material allegation of fact the
truth of which he does not
admit
b. If pleader decides to deny only
a part or a qualification of an
averment, he shall specify so
much of it as true and deny the
remainder
c. If pleader is without knowledge
or information sufficient to
form a belief as to the truth of a
material averment, he shall so
state
2. Affirmative Defenses - Allegations of
new matters which, while
hypothetically admitting the material
allegations in the claimants pleading,
would nevertheless prevent/bar
recovery by him. It includes fraud,
prescription, release, payment and any
other matter by way of confession and
avoidance.
Negative Pregnant - Denial pregnant with an
admission. It is a denial pregnant with the
admission of the substantial facts in the pleading
responded to which are not squarely denied. It
is in effect an admission of the averment it is
directed to. [Philamgen v. Sweet Lines (1993)]
While it is a denial in the form its substance
actually has the effect of an admission because
of a too literal denial of the allegation sough to
be denied. This arises when the pleader merely
repeats the allegations in a negative form.
Insufficient denial or denial amounting to
admissions:
1. General denial; and
2. Denial in the form of a negative
pregnant
COUNTERCLAIM
Definition - Any claim which a defending party
may have against an opposing party.
1. A counterclaim is in the nature of a
cross-complaint. Although it may be
alleged in the answer, it is not part of
the answer.
2. Upon its filing, the same proceedings
are had as in the original complaint.
3. For this reason, it must be answered 10
days from service [Rule 11, Sec 4]
How to Raise Counterclaims
1. By including it in the Answer
a. A compulsory counterclaim or a
cross-claim that a defending party
has AT THE TIME he files his
answer shall be contained therein.
[Rule 11, Sec. 8]
b. Exception: Pleadings may be
amended under Rule 11, Sec. 10:
(1) By leave of court;
(2) Before judgment;
(3) On the grounds of:
(4) Oversight;
(5) Inadvertence;
(6) Excusable neglect;
(7) When justice requires.
2. By filing after the Answer (Rule 11, Sec.
9)
a. Counterclaims/cross-claims arising
AFTER the answer,
b. How done:
(1) By filing a supplemental
pleading before judgment
(2) WITH courts permission
Rules on Counterclaims
30

1. In an original action before the RTC, the c. It must be within the courts
counterclaim may be considered jurisdiction both as to the amount
compulsory regardless of the amount. and the nature. [Regalado, citing
[Rule 6, Sec. 7] Quintanilla v CA (1997)]
2. In the case of Agustin v. Bacalan (1985),
if a counterclaim is filed in the MTC in 2. General Rule: A compulsory
excess of its jurisdictional amount, the counterclaim not set up in the answer is
excess is considered waived. deemed barred.
3. But in Calo v. Ajax (1968), the remedy a. Exceptions:
where a counterclaim is beyond the (1) If it is a counterclaim which
jurisdiction of the MTC is to set off the either matured or was acquired
claims and file a separate action to by a party after serving his
collect the balance. answer. In this case, it may be
pleaded by filing a
Kinds of Counterclaims supplemental answer or
pleading before judgment.
[Rule 11, Sec. 9]
Compulsory (2) When a pleader fails to set up a
Permissive
counterclaim counterclaim through
counterclaim
oversight, inadvertence,
One which arises out excusable negligence, or when
of or is necessarily It does not arise out of justice so requires. He may, by
connected with the nor is it necessarily leave of court, set-up the
transaction or connected with the counterclaim by amendment of
occurrence -that is the subject matter of the the pleading (Rule 11, Sec. 10)
subject matter of the opposing party's
opposing party's claim. 3. A plaintiff who fails or chooses not to
claim. answer a compulsory counterclaim may
Does not require for May require for its not be declared in default, principally
its adjudication the adjudication the because the issues raised in the
presence of third presence of third counterclaim are deemed automatically
parties of whom the parties over whom the joined by the allegations in the
court cannot acquire court cannot acquire complaint. [Gojo v. Goyala (1970)]
jurisdiction. jurisdiction.
Barred if not set up in Not barred even if not 4. The filing of a MTD and the setting up of
the action. set up in the action. a compulsory counterclaim are
Must be answered, incompatible remedies.
Need not be answered; otherwise, the a. In the event that a defending party
no default. defendant can be has a ground for dismissal and a
declared in default. compulsory counterclaim at the
Since permissive, it same time, he must choose only one
requires the payment remedy.
No need for separate b. If he decides to file a MTD, he will
of docket fees (Sun
docket fees lose his counterclaim. But if he opts
Insurance v. Asuncion,
1989) to set up his counterclaim, he may
still plead his ground for dismissal
Compulsory Counterclaim as an affirmative defense in his
answer.
1. Requisites: c. If any of the grounds to dismiss
a. It must arise out of, or be under Rule 17, Sec. 3 arise, the
necessarily connected with, the proper recourse for a defendant
transaction/occurrence that is the who desires to pursue his
subject matter of the opposing compulsory counterclaim in the
party's claim; same proceeding is not a MTD.
b. It does not require for its d. Instead, he should only move to
adjudication the presence of 3rd have the plaintiff declared non-
parties of whom the court cannot suited on the complaint so that the
acquire jurisdiction; latter can no longer present his
evidence thereon, and
31
simultaneously move that he be
declared as in default on the
compulsory counterclaim, and
reserve the right to present
evidence ex parte on his
compulsory counterclaim. [BA
Finance v. Co (1993)]
Permissive Counterclaim
1. Counterclaim is permissive if it does not
arise out of, nor is necessarily
connected with, the subject matter of
the opposing partys claim
a. This is not barred even if not set up
in the action
b. Must have independent
jurisdictional ground (Herrera).
Hence, the filing of a separate
docket fee.
2. Test to determine whether a
counterclaim is compulsory or
permissive: LOGICAL RELATIONSHIP
TEST
a. Where conducting separate trials of
the respective claims would entail
substantial duplication of effort and
time and involves many of the same
factual and legal issues. [Meliton v.
CA (1992)]
3. NOTE: If the counterclaim matures
AFTER the Answer, it is merely
PERMISSIVE
Effect on Counterclaim when Complaint is
Dismissed - Under Section 3, Rule 17, dismissal
of action due to plaintiffs fault shall be without
prejudice to the defendants right to prosecute
his counterclaim in the same/separate action.
CROSS-CLAIM
Requisites:
1. A claim by one party against a co-party;
2. It must arise out of the subject matter of
the complaint or of the counterclaim;
3. The cross-claimant is prejudiced by the
claim against him by the opposing
party.
General Rule: A cross-claim is always
compulsory. A cross-claim not set up shall be
barred. [Rule 9, Sec. 2]
Exceptions: Permissive Cross-Claims
1. When it is outside the courts
jurisdiction;
2. If the court cannot acquire jurisdiction
over 3rd parties whose presence is
necessary for the adjudication of said
cross-claim. In this case, the cross-claim
is considered permissive.
3. Cross claim that may mature or may be
acquired AFTER service of Answer
Effect on Cross-Claim when Complaint is
Dismissed - The dismissal of the complaint
carries with it the dismissal of a cross-claim
which is purely defensive, but not a cross-claim
seeking an affirmative relief. [Torres v. CA
(1973)]
Improper Cross-Claims
1. Where the cross-claim is improper, the
remedy is certiorari (Malinao v. Luzon
Surety, 1964)
2. The dismissal of a cross-claim is
unappealable when the order
dismissing the complaint becomes final
and executory (Ruiz, Jr. v. CA, 1993)
3. A cross-claim is not allowed after
declaration of default of cross-claimant
(Tan v. Dimayuga, 1962) It would be
tantamount to setting aside the order of
default because then the cross-claimant
would re-obtain a standing in court as
party litigant
Counter-Counterclaims and Counter-Cross-Claims
(Rule 6, Sec. 9)
1. Counter-Counterclaim - A claim
asserted against an original counter-
claimant.
2. Counter-Cross-claim - A claim filed
against an original cross-claimant.
THIRD (FOURTH, ETC.) PARTY COMPLAINTS
(Rule 6, Sec. 11)
Definition - It is a claim that a defending party
may, with leave of court, file against a person
not a party to the action for contribution,
indemnity, subrogation or any other relief, in
respect of his opponent's claim.
There could also be a 4th/etc.-party complaint
with the same purpose and function.
3rd Party
Cross-claim Counterclaim
complaint
Against a
Against a co- Against an
person not a
party opposing party
party to the
32

action
May arise out of Tests to Determine Whether the 3 rd-Party
or be necessarily Complaint is in Respect of Plaintiffs Claim
Must arise (Capayas v. CFI, 1946)
connected with
out of the 1. WON it arises out of the same
the transaction
transaction Must be in transaction on which the plaintiff's
or the subject
that is the respect of claim is based, or although arising out of
matter of the
subject the another/different transaction, is
opposing partys
matter of the opponents connected with the plaintiffs claim;
claim
original (plaintiffs) 2. WON the 3rd-party defendant would be
(compulsory
action or of a claim liable to the plaintiff or to the defendant
counterclaim),
counterclaim for all/part of the plaintiffs claim
or it may not
therein against the original defendant;
(permissive
counterclaim) 3. WON the 3rd-party defendant may
No need for Leave of assert any defenses which the 3rd-party
No need for plaintiff has or may have to the
a leave of court is
leave of court plaintiffs claim.
court needed

Additional Rules
3rd-party complaint Complaint in 1. Leave of court to file a 3rd-party
intervention complaint may be obtained by motion
Brings into the action a under Rule 15.
3rd person who was Same 2. Summons on 3rd (4th/etc.) party
not originally a party defendant must be served for the court
Initiative is with the Initiative is with a to obtain jurisdiction over his person,
person already a party non-party who seeks since he is not an original party.
to the action to join the action 3. Where the trial court has jurisdiction
over the main case, it also has
jurisdiction over the 3rd-party
3rd-party complaint Counterclaim complaint, regardless of the amount
involved as a 3rd-party complaint is
Need not be within the Must be within the merely auxiliary to and is a
continuation of the main action.
jurisdiction of the jurisdiction of the
[Republic v. Central Surety (1968)]
court trying the main court trying the main
case case 4. A 3rd-party complaint is not proper in
an action for declaratory relief.
Diminishes/defeats the Need not
recovery sought by the diminish/defeat the
opposing party recovery sought by
COMPLAINT-IN-INTERVENTION
the opposing party
Cannot exceed the May exceed in amount
Pleadings-in-Intervention (Rule 19, Sec. 3)
amount stated in the or be different in kind
1. Complaint-in-intervention If
original complaint from that sought in
intervenor asserts a claim against either
the original complaint
or all of the original parties.
2. Answer-in-intervention If intervenor
Basis of Third-Party Complaint - Under this Rule,
unites with the defending party in
a person not party to an action may be
resisting a claim against the latter.
impleaded by the defendant either:
1. On allegation of liability to the latter
Definition - INTERVENTION is a remedy by
2. On the ground of direct liability to the
which a third party, not originally impleaded in
plaintiff; or
a proceeding, becomes a litigant therein to
3. Both (1) and (2)
enable him to protect or preserve a right or
interest which may be affected by such
Situation in (1) is covered by the phrase
proceeding.
contribution, indemnity or
subrogation, while (2) and (3) are
Its purpose is "to settle in one action and by a
subsumed under the catch-all phrase
single judgment the whole controversy (among)
(Samala v. Victor, 1989)
the persons involved." [First Philippine Holdings
v. Sandiganbayan (1996); Rule 19]
33
When Allowed - Intervention shall be allowed
when a person has:
1. A legal interest in the matter in
litigation;
2. Or in the success of any of the parties;
3. Or an interest against the parties; and
4. When he is so situated as to be
adversely affected by a distribution or
disposition of property in the custody of
the court or of an officer thereof. [First
Philippine Holdings v. Sandiganbayan
(1996)]
Not an Independent Action - Intervention is not
an independent action, but is ancillary and
supplemental to an existing litigation. [First
Philippine Holdings v. Sandiganbayan (1996)]
1. It is neither compulsory nor mandatory
but only optional and permissive.
[Mabayo v. CA (2002)]
2. The Court has full discretion in
permitting or disallowing intervention,
which must be exercised judiciously
and only after consideration of all the
circumstances obtaining in the case.
[Mago v. CA (1999)]
3. It is not an absolute right as it can be
secured only in accordance with the
terms of applicable statute or rule.
[Office of Ombudsman v. Samaniego
(2010)]
Meaning of Legal Interest - Interest must be of a
direct and immediate character so that the
intervenor will either gain or lose by the direct
legal operation of the judgment. The interest
must be actual and material, a concern which is
more than mere curiosity, or academic or
sentimental desire; it must not be indirect and
contingent, indirect and remote, conjectural,
consequential or collateral. [Virra Mall Tenants
v. Virra Mall (2011)]
Requisites for Valid Intervention
1. There must be a motion for intervention
filed before rendition of judgment by
the trial court.
2. Movant must show in his motion that he
has a:
a. Legal interest in (1) the matter of
litigation, (2) the success of either
of the parties in the action or (3)
against both parties.
b. That the movant 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
c. That the intervention must not
unduly delay or prejudice the
adjudication of the rights of the
original parties and that the
intervenors rights may not be fully
protected in a separate proceeding.
How to Intervene
1. With leave of court, the court shall
consider the 2 factors
2. Motion to intervene may be filed at any
time before rendition of judgment by
trial court
3. Copy of the pleadings-in-intervention
shall be attached to the motion and
served on the original parties
Time to Intervene: (Rule 19, Sec. 2)
1. General Rule: The motion to intervene
must be filed at any time before the
rendition of judgment by the trial court
2. Exceptions:
a. With respect to indispensable
parties, intervention may be
allowed even on appeal
(Falcasantos v. Falcasantos)
b. When the intervenor is the
Republic (Lim v. Pacquing)
c. Intervention may be allowed after
judgment where necessary to
protect some interest which cannot
otherwise be protected, and for the
purpose of preserving the
intervenors right to appeal (Pinlac
v. CA)
Remedy for Denial of Motion for Intervention
1. The movant may file a motion for
reconsideration since the denial of a
motion for intervention is an
interlocutory order.
2. Alleging grave abuse of discretion,
movant can also file a certiorari case.
REPLY
Definition - The plaintiffs response to the
defendant's answer. The function of which is to
deny or allege facts in denial or in avoidance of
new matters alleged by way of defense in the
answer and thereby join or make issue as to
such new matters. (Rule 6, Sec. 10)
Effect of Failure to Reply
1. General Rule - Filing a reply is merely
optional. New facts that were alleged in
the answer are deemed controverted
should a party fail to reply thereto.
34
2. Exception When a Reply is necessary
a. To set up affirmative defenses on
the counterclaim (Rosario v.
Martinez)
b. Where the answer alleges the
defense of usury in which case a
reply under oath should be made;
otherwise, the allegation of
usurious interest shall be deemed
admitted [Rule 8, Sec. 8; Sun Bros. v.
Caluntad]
c. Where the defense in the answer is
based on an actionable document, a
reply under oath must be made;
otherwise, the genuineness and due
execution of the document shall be
deemed admitted. [Rule 8, Sec. 11;
Toribio v. Bidin]
PLEADINGS ALLOWED IN SMALL CLAIM
CASES AND CASES COVERED BY THE RULES
OF SUMMARY PROCEDURE
Under the Revised Rules on Summary Procedure
The only pleadings allowed to be filed are:
(Sec. 3)
1. Complaints
2. Compulsory counterclaims and cross-
claims pleaded in the Answer; and
3. Answers thereto
Prohibited Pleadings, Motions, or Petitions (Sec.
19)
1. Motion to dismiss the complaint or to
quash the complaint or information
except on the ground of lack of
jurisdiction over the subject matter, or
failure to comply with required
barangay conciliation proceedings;
2. Motion for a bill of particulars;
3. Motion for new trial, or for
reconsideration of a judgment, or for
opening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file
pleadings, affidavits or any other paper;
6. Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court;
7. Motion to declare the defendant in
default;
8. Dilatory motions for postponement;
9. Reply;
10. Third party complaints; and
11. Interventions.
Forms Used Under the Rule of Procedure under
Small Claims Cases
1. Instead of filing complaint, a Statement
of Claim using Form 1-SCC shall be filed
[Sec. 5]
2. Answer shall be filed by way of a
Response using Form 3-SCC [Sec. 10]
3. Defendant may file counterclaim if he
possesses a claim against the plaintiff
that
a. Is within the coverage of this Rule,
exclusive of interest and costs;
b. Arises out of the same transaction
or event that is the subject matter
of the plaintiffs claim;
c. Does not require for its
adjudication the joinder of third
parties; and
d. Is not the subject of another
pending action, the claim shall be
filed as a counterclaim in the
Response; otherwise, the defendant
shall be barred from suit on the
counterclaim.
The defendant may also elect to file a
counterclaim against the plaintiff that does not
arise out of the same transaction or occurrence,
provided that the amount and nature thereof are
within the coverage of this Rule and the
prescribed docket and other legal fees are paid.
NOTE: Courts decision shall be contained in
Form 13-SCC
Prohibited Pleadings and Motions in Small
Claims
1. Motion to dismiss the complaint except
on the ground of lack of jurisdiction;
2. Motion for a bill of particulars;
3. Motion for new trial, or for
reconsideration of a judgment, or for
reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file
pleadings, affidavits, or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court;
8. Motion to declare the defendant in
default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints; and
12. Interventions.
PARTS OF A PLEADING (Rule 7, Sec. 1 to 3)
35

2. Petition for relief from judgment or

CAPTION order (Sec. 3, Rule 38)
3. Petition for review from RTC to the CA
Caption - Courts name, actions title (i.e. parties (Sec. 1, Rule 42)
names) and docket number. 4. Petition for review from quasi-judicial
agencies to the CA (Sec. 5, Rule 43)
Body - Pleadings designation, allegations of 5. Appeal by certiorari from the CTA to the
party's claims/defenses, relief prayed for and SC (Sec. 12, RA 9282 amending Sec. 19,
pleadings date. RA 1125)
1. Paragraphs must be numbered, and 6. Appeal by certiorari from CA to the SC
each paragraph number must contain a (Sec. 1, Rule 45)
single set of circumstances 7. Petition for annulment of judgments or
2. Headings: if more than one cause of final orders and resolutions (Sec. 1, Rule
action, use "1st cause of action," 2nd 47)
cause of action," etc. 8. Complaint for injunction (Sec. 4, Rule
3. Specify relief sought, but it may add a 58)
general prayer for such further/other 9. Application for appointment of receiver
relief as may be deemed just/equitable. (Sec. 1, Rule 59)
4. Every pleading shall be dated. 10. Application for support pendente lite
(Sec. 1, Rule 69)
11. Petition for certiorari against
SIGNATURE AND ADDRESS judgments, final orders, or resolutions
of constitutional commissions (Sec. 2,
Every pleading must be signed by the party or Rule 64)
counsel representing him. 12. Petition for certiorari (Sec. 1, Rule 65)
13. Petition for prohibition (Sec. 2, Rule 65)
The address must be stated and such address 14. Petition for mandamus (Sec. 3, Rule 65)
must not be a post office box 15. Petition for quo warranto (Sec. 1, Rule
66)
Effect of Signature of Counsel in a Pleading - 16. Complaint for expropriation (Sec. 1,
Signature of counsel constitutes a certificate by Rule 67)
him that: 17. Complaint for forcible entry or unlawful
1. He has read the pleading detainer (Sec. 4, Rule 70)
2. That to the best of his knowledge, 18. Petition for indirect contempt (Sec. 4,
information, and belief there is good Rule 71)
ground to support it; and 19. Petition for appointment of a general
3. That it is not interposed for delay guardian (Sec. 2, Rule 93)
20. Petition for leave to sell or encumber
Unsigned Pleadings property of the ward by a guardian (Sec.
1. No legal effect 1, Rule 95)
2. Court may, in its discretion, allow such 21. Petition for declaration of competency
remedy to be remedied if it appears of a ward (Sec. 1, Rule 97)
that: 22. Petition for habeas corpus (Sec. 3, Rule
a. It was due to mere inadvertence; 102)
and 23. Petition for change of name (Sec. 2, Rule
b. It was not intended for delay 103)
24. Petition for voluntary judicial
dissolution of a corporation (Sec. 1, Rule
VERIFICATION AND CERTIFICATION AGAINST 104)
FORUM SHOPPING (Rule 7, Sec. 4) 25. Petition for cancellation or correction of
entries in the civil registry (Sec. 1, Rule
Verification - Pleadings need not be verified, 108)
unless otherwise provided by the law/rules
How a pleading is verified: By an affidavit
Verification is Required in the following: 1. That the affiant read the pleading;
1. Pleadings filed in the inferior courts in 2. That the allegations therein are true
cases covered by the Rules on Summary and correct of his personal knowledge
Procedure are all required to be verified or based on authentic documents.
36
Forum Shopping - The filing of multiple suits in
different courts, simultaneously or successively,
involving the same parties, to ask the courts to
rule on the same/related causes and/or to grant
the same or substantially the same relief. [T'Boli
Agro-Industrial Development, Inc. (TADI) v.
Solidapsi (2002)] (Asked in the 2006 Bar Exam)
Test to Determine WON there is forum shopping:
WON in the 2 or more cases pending, there is
identity of:
1. Parties
2. Rights or causes of action
3. Relief sought
Certificate of Non-Forum Shopping (CNFS) (Rule
7, Sec. 5)
1. The CNFS is to be executed by the
petitioner, not by the counsel.
2. CNFS is required only for complaints or
initiatory pleadings (e.g. permissive
counterclaim, cross-claim etc.).
3. CNFS is not required in a compulsory
counterclaim. A counterclaim is not an
initiatory pleading. [UST Hospital v.
Surla (1998)]
a. However, a certification is needed
in permissive counterclaims (Korea
Exchange Bank v. Gonzales)
4. The lack of certification against forum
shopping is not curable by mere
amendment of a complaint, but shall be
a cause for the dismissal of the case
without prejudice. The general rule is
that subsequent compliance with the
requirements will not excuse a party's
failure to comply in the first instance.
[Ramirez v. Mar Fishing (2012)]
Who Executes the Certification - Certification
against forum shopping ordained by the Rules is
to be executed by the petitioner, not his counsel.
The petitioner is in the best position to know
whether he filed or caused the filing of a petition
in the case.
Certification by counsel is defective certification.
In Santos v. CA, the Court held that a special
power of attorney was insufficient.
Effect of Submission of False CNFS or Non-
Submission:
1. Indirect contempt
2. Administrative and criminal actions
Effect of Willful and Deliberate Forum Shopping
1. Ground for summary dismissal of the
case with prejudice;
2. Direct contempt and administrative
sanctions.
NOTE: the CNFS is mandatory but NOT
jurisdictional.
Requirement of a Corporation executing the
verification/ CNFS - Only individuals vested with
authority by a valid board resolution may sign
the certificate of non-forum shopping in behalf
of a corporation. In addition, the Court has
required that proof of said authority must be
attached. Failure to provide a certificate of non-
forum shopping is sufficient ground to dismiss
the petition. Likewise, the petition is subject to
dismissal if a certification was submitted
unaccompanied by proof of the signatorys
authority. [PAL v. FASAP (2006)]
ALLEGATIONS IN A PLEADING (Rule 8)
MANNER OF MAKING ALLEGATIONS
In General (Rule 8, Sec. 1)
1. Every pleading shall contain a
statement of the ultimate facts on which
the party pleading relies for his claim or
defense
a. In a methodical and logical form
b. A plain, concise and direct
statement
c. Statement of mere evidentiary facts
omitted
2. If a defense relief is based on law, state
in a clear and concise manner:
a. Pertinent provisions of the law
b. Applicability of the law to him
Facts that must be averred PARTICULARLY -
Circumstances showing fraud/mistake in all
averments of fraud/mistake [Rule 8, Sec. 5]
Facts that may be averred GENERALLY:
1. Conditions precedent; but there must
still be an allegation that the specific
condition precedent has been complied
with, otherwise it will be dismissed for
lack of cause of action; [Rule 8, Sec. 3]
2. Capacity to sue or be sued;
3. Capacity to sue or be sued in a
representative capacity; [Rule 8, Sec. 4]
4. Legal existence of an organization; A
party desiring to raise an issue as to the
legal existence or capacity of any party
to sue or be sued in a representative
capacity shall do so by specific denial
37
which shall include supporting
particulars within the pleader's
knowledge. [Rule 8, Sec 4]
5. Malice/intent/knowledge or other
condition of the mind; [Rule 8, Sec. 5]
6. Judgments of domestic/foreign courts,
tribunals, boards or officers (without
need to show jurisdiction); [Rule 8, Sec.
6]
7. Official documents/acts. [Rule 8, Sec. 9]
Condition Precedent If the cause of action
depends upon a condition precedent, its
fulfillment or legal excuse for non-fulfillment
must be averred.
A general averment of the performance or
occurrence of all conditions precedent shall be
sufficient [Rule 8, Sec. 3]
All valid conditions precedent to the institution
of a particular action, whether prescribed by
statute, fixed by agreement of the parties, or
implied by law must be performed or complied
with before commencing the action. Such fact
must be pleaded.
Failure to comply with a condition precedent is
a ground for a motion to dismiss (Rule 16, Sec.
1(j))
Examples of Conditions Precedent:
1. Exhaustion of administrative remedies
2. Investigation by a fiscal is a prerequisite
to annulment of marriage when
defendant defaults (Tolentino v.
Villanueva)
3. No suit shall be filed or maintained
between members of the same family
unless it should appear that earnest
efforts at compromise have been made
but that the same have failed. (Art. 222;
Versoza v. Versoza)
4. Arbitration; Barangay Conciliation
Capacity What must be averred:
1. Facts showing the capacity of a party to
sue or be sued; or
2. The authority to sue or be sued in a
representative capacity;
3. Or the legal existence of an organized
association of persons that is made a
party (Rule 8, Sec. 4)
Fraud, Mistake, Malice, Intent, Knowledge and
Other Condition of the Mind, Judgments, official
documents, or acts - Circumstances constituting
fraud or mistake must be stated with
particularity while malice, intent, knowledge or
other condition of the mind of a person may be
averred generally [Rule 8, Sec. 5]
Judgment - In pleading a judgment or decision of
a domestic or foreign court, judicial or quasi-
judicial tribunal, or of a board or officer, it is
sufficient to aver the judgment or decision
without setting forth matter showing
jurisdiction to render it. (Rule 8, Sec. 6)
PLEADING AN ACTIONABLE DOCUMENT (Rule
8, Sec. 7)
Actionable Document - The written instrument
upon which the action or defense is based.
Where a pleader relies upon a document, its
substance must be set out in the pleading either
by its terms or by its legal effects
Pleading the actionable document:
1. The substance of such instrument or
document shall be set forth in the
pleading; and
2. The original or copy thereof shall be
attached to the pleading as an exhibit,
which shall be deemed to be part of the
pleading; or
3. Said copy may with like effect be set
forth in the pleading
A variance in the substance of the document set
forth in the pleading and the document annexed
thereto does not warrant dismissal of the action
(Convets Inc. v. National Dev. Co.)
How to Contest an Actionable Document (Rule 8,
Sec. 8)
1. By specific denial under oath; and
2. By setting forth what is claimed to be
the facts
NOTE: The genuineness and due execution of
the document must be denied SPECIFICALLY
- Due Execution - That the party whose
signature it bears admits that he
voluntarily signed it; or that it was
signed by another for him with his
authority
- Genuineness - That the party whose
signature it bears admits that at the
time it was signed it was in words and
figures exactly as set out; and that the
formalities, such as swearing and
acknowledgement, or revenue stamps
which are required by law are waived
by him
38
Failure to Deny Under Oath the Actionable
Document:
1. The genuineness and due execution is
deemed admitted
2. The document need not be formally
offered in evidence
SPECIFIC DENIALS (Rule 8, Sec. 10)
The purpose of requiring the defendant to make
a specific denial is to make him disclose the
matters alleged in the complaint which he
sincerely intends to disprove at the trial,
together with matters which he relies upon to
support the denial (Herrera).
Modes of Denial:
1. Specific Absolute Denial - Defendant
must specify each material allegation of
fact the truth of which he does not
admit
a. Whenever applicable, he shall set
forth the substance of the matters
which he will rely upon to support
the denial
2. Partial Specific Denial - If pleader
decides to deny only a part or a
qualification of an averment:
a. He shall specify so much of it as is
true and material
b. He shall deny the remainder
3. Disavowal of Knowledge - If defendant
is without knowledge or information
sufficient to form a belief as to the truth
of a material averment made in the
complaint:
a. He shall so state
b. This shall have the effect of a denial
Effect of Failure to make Specific Denials:
1. General Rule: Allegations not specifically
denied are deemed admitted (Rule 8,
Sec. 11)
2. Exceptions: Averments not deemed
admitted even if not specifically denied
a. Allegations as to the amount of
unliquidated damages;
b. Allegations immaterial to the cause
of action
c. Allegations of merely evidentiary or
immaterial facts may be expunged
from the pleading or may be
stricken out on motion. [Rule 8, Sec.
12]
d. Conclusion of law.
When a specific denial requires an OATH When
the genuineness and due execution of an
actionable document is contested or denied, the
specific denial must be under oath. (Rule 8, Sec.
8)
EFFECT OF FAILURE TO PLEAD (Rule 9)
FAILURE TO PLEAS DEFENSES AND
OBJECTIONS
General Rule: Defenses and objections not
pleaded in answer or motion to dismiss are
deemed waived. (Omnibus Motion Rule)
Exceptions:
1. Lack of jurisdiction over the subject
matter;
2. Litis pendentia between same parties
for the same cause
3. Res judicata
4. Action barred by statute of limitations.
FAILURE TO PLEAD COMPULSORY
COUNTERCLAIM AND CROSS-CLAIM
General Rule: A compulsory counterclaim not set
up is considered barred. [Rule 9, Sec. 2]
Exception: If due to oversight, inadvertence,
excusable neglect, etc. the compulsory
counterclaim, with leave of court, may be set up
by amendment before judgment. [Rule 11, Sec.
10]
For Cross-Claims: A cross-claim is always
compulsory. A cross-claim not set up shall be
barred. [Rule 9, Sec. 2]
DEFAULT (Rule 9, Sec. 3)
Definition: Failure of the defendant to answer
within the proper period. It is not his failure to
appear nor his failure to present evidence
Dual stages of default:
1. Declaration of Order of Default when
defendant fails to answer within the
time specified in the rules, the court
shall, upon motion of the plaintiff and
39
proof of such failure, declare defendant
in default
2. Rendition of Judgment by Default
thereafter, on the basis of the allegation
of the complaint or after receiving
plaintiffs evidence, the court shall
render judgment granting him such
relief as the complaint and the facts
proven may warrant
Order of default Judgment by default
Issued by the court on
Rendered by the court
plaintiffs motion, for
following a default
failure of the
order or after it
defendant to file his
received ex parte
responsive pleading
plaintiffs evidence
seasonably
Interlocutory -Not
Final Appealable
appealable
When a Declaration of Default is Proper:
There is only one instance when a party
defendant can properly be declared in default
and that is when he fails to file his answer
within the reglementary period, or within such
extended time as he is allowed by the court,
under Sec. 1, Rule 18
Elements of a Valid Order of Default
1. The court must have validly acquired
jurisdiction over the person of the
defendant either by service of summons
or voluntary appearance
2. The defendant failed to file his answer
within the time allowed therefor
3. There must be a motion to declare the
defendant in default with notice to the
latter
4. There must be notice to the defendant
by serving upon him a copy of such
motion
5. There must be proof of such failure to
answer
6. There must be a hearing to declare
defendant in default
Effect of Order of Default:
1. The court shall proceed to render
judgment granting the claimant such
relief as his pleading may warrant; or in
its discretion
2. Shall require the claimant to submit
evidence;
3. Loss of standing in court of the
defaulting party meaning he cannot
appear therein, adduce evidence and be
heard nor take part in the trial
4. Defendant is still entitled to notices of
subsequent proceedings
a. A defendant declared in default
cannot take part in the trial, but he
cannot be disqualified from
testifying as a witness in favor of
non-defaulting defendants. [Cavili v.
Florendo (1987)]
b. A party in default is entitled to
notice of:
(1) Motion to declare him in
default;
(2) Order declaring him in default;
(3) Subsequent proceedings;
(4) Service of final orders and
judgments.
5. A defending party declared in default
retains the right to appeal from the
judgment by default. However, the
grounds that may be raised in such an
appeal are restricted to any of the
following:
a. The failure of the plaintiff to prove
the material allegations of the
complaint;
b. The decision is contrary to law; and
c. The amount of judgment is
excessive or different in kind from
that prayed for. [Ortero v. Tan
(2012)]
Relief from an Order of Default (Lina v. CA)
1. The defendant in default may file a
motion, under oath, to set aside the
order of default
At any time after discovery thereof
(from Notice) and before judgment,
2. If the judgment has already been
rendered, he may file for new trial
under Sec. 1 (a) Rule 37
When the defendant discovered the
default, but before the same has
become final and executory
3. If defendant discovered the default after
judgment had become final and
executory, he may file a petition for
relief under Sec. 2, Rule 38
4. He may also appeal from the judgment
rendered against him as contrary to the
40
evidence or to the law, even if no
petition to set aside the order of default
has been presented by him
Partial Default - When the complaint states a
common cause of action against several
defendants some of whom answers and some of
them do not, the court should declare defaulting
defendants in default, and proceed to trial on
answers of others
If the defense is personal to the one who
answered, it will not benefit those who did not
answer.
Extent of Relief to be Awarded
1. A judgment rendered against a party in
default shall not exceed the amount or
be different in kind from that prayed for
nor award unliquidated damages
2. If the claim is not proved, the case
should be dismissed
3. As held in Datu Samad Mangelen v. CA
(1992):
DEFAULT IN ORDINARY PROCEDURE
After the lapse of time to file
an answer, the plaintiff may
move to declare the defendant
in default
If motion granted:
Court issues order of default
and renders judgment or
require plaintiff to submit
evidence ex parte
Before judgment by default is
rendered, defendant may:
(1) Move to set aside order of
FILING AND SERVICE OF showing
default upon PLEADINGSof FAME
and that he has a meritorious
PAYMENT OF DOCKET FEES defense;
(2) Avail of Rule 65 in proper
As a rule, the court acquires jurisdiction over the
cases
case only upon payment of prescribed fees
Court sets aside order of
default and defendant is
allowed to file an answer
Case set for pre-trial
a. In a judgment based on evidence
presented ex parte, judgment
should not exceed the amount or be
different in kind from that prayed
for.
b. On the other hand, in a judgment
where an answer was filed but
defendant did not appear at the
hearing, the award may exceed the
amount or be different in kind from
that prayed for.
Actions Where Default is NOT allowed:
1. An action for annulment or declaration
of nullity of marriage
2. For legal separation
3. Special civil actions of certiorari,
prohibition and mandamus where
comment instead of an answer is
required to be filed
4. Summary procedure
If motion denied:
Defendant allowed to file an
answer
General
Court rule:
maintains orderWithout
of payment, case is
defaultnot filed. Payment of docket fees is
considered
mandatory and jurisdictional.
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
Presentation of plaintiffs
evidence ex-parte
41

or nature of the action [Proton Pilipinas v. Service - The act of providing a party or his
Banque National de Paris (2005)] counsel with a copy of the pleading or paper
concerned. [Rule 13, Sec. 2]
Effect of Failure to Pay Docket Fees at Filing
Papers required to be filed and served: (Rule 13,
1. The Manchester Rule: Manchester v. CA Sec. 4)
(1987) 1. Pleading subsequent to the complaint;
a. Automatic Dismissal 2. Appearance;
b. Any defect in the original pleading 3. Written Motion;
resulting in underpayment of the 4. Notice;
docket fees cannot be cured by 5. Order;
amendment, such as by the 6. Judgment;
reduction of the claim as, for all 7. Demand;
legal purposes, there is no original 8. Offer of Judgment;
complaint over which the court has 9. Resolution;
acquired jurisdiction 10. Similar papers.

2. Relaxation of the Manchester Rule by

Sun Insurance v. Asuncion (1989) PERIODS OF FILING OF PLEADINGS
a. NOT automatic dismissal
b. Court may allow payment of fees PERIOD
within reasonable period of time. PLEADING PERIOD COUNTED
Note that payment should always FROM
be within the prescriptive period of Service of
the action filed. summons,
unless a
3. Further modification by Heirs of Hinog different
v. Melicor (2005) Within 15 days
period is fixed
a. Fees as lien by the court
b. Where the trial court acquires (Rule 11, Sec.
jurisdiction over a claim by the 1
filing of the pleading and the Within 30 days
payment of the prescribed filing fee, if the
BUT SUBSEQUENTLY, the judgment defendant is a
awards a claim not specified in the foreign private Receipt of
pleading, or cannot then be Answer to
juridical entity summons
estimated, or a claim left for the
and service of (Rule 11, Sec.
determination by the court, then Complaint
summons is 2)
the additional filing fee shall made on
constitute a lien on the judgment government
official
4. Exception to the Sun Insurance doctrine: At least 60
Gochan v. Gochan days
a. The Sun Insurance rule allowing Service of
In case of non-
payment of deficiency does not extrajudicial
resident
apply where plaintiff never summons
defendant on
demonstrated any willingness to (Sec. 15, Rule
whom
abide by the rules to pay the docket 14)
extrajudicial
fee but stubbornly insisted that the service is made
case filed was one for specific Answer to Within 15 days Service of a
performance and damages. AMENDED (if amendment copy of the
Complaint was a matter of amended
(amended right) complaint
FILING VERSUS SERVICE OF PLEADINGS counterclaim,
cross-claim, Notice of the
Within 10 days
Filing - The act of presenting the pleading or 3rd party order
(if amendment
other paper to the clerk of court. [Rule 13, Sec. 2] complaint, admitting the
was not a
same (Rule
complaint in matter of right)
intervention) 11, Sec. 3)
42

Answer to Filing a pleading by facsimile is not sanctioned.

From service
Counterclaim But fax was allowed in an extradition case
Within 10 days (Rule 11, Sec.
or Cross- (Justice Cuevas v. Juan Antonio Munoz)
4)
Claim
Same rule as
Answer to MODES OF SERVICE
answer to the
third (4th, Within 15 days
complaint
etc)- party Personal Service (Rule 13, Sec. 6)
(Rule 11, Sec.
complaint 1. Delivering personally a copy to the
5)
From service party, who is not represented by a
of the counsel, or to his counsel; or
pleading 2. Leaving a copy in counsels office with
Reply Within 10 days his clerk or with a person having charge
responded to
(Rule 11, Sec. thereof; or
6) 3. Leaving the copy between 8am and 6pm
From notice at the partys or counsels residence, if
of the order known, with a person of sufficient age
Answer to admitting the and discretion then residing thereon if
supplemental Within 10 days same, unless not person is found in his office, or if his
complaint a different office is unknown, or if he has no office
period is fixed
by the court Service by Mail (Rule 13, Sec. 7)
1. Ordinary Mail - it does not constitute
NOTE: Upon motion and on such terms as may filing until the papers are actually
be just, the court may extend the time to plead delivered into the custody of clerk or
provided in these Rules. The court may also, judge
upon like terms, allow an answer or other a. Service may be done by ordinary
pleading to be filed after the time fixed by these mail if no registry service is
Rules. [Rule 11, Sec. 11] available in the locality of either
sender or addressee

MANNER OF FILING 2. Registered Mail - The date of mailing is

As per Rule 13, Sec. 3:
1. Personally
a. By By personally presenting the
original to the clerk of court.
b. The pleading is deemed filed upon
the receipt of the same by the clerk
of court who shall endorse on it the
date and hour of filing.
c. If a party avails of a private carrier,
the date of the courts actual receipt
of the pleading (not the date of
delivery to the private carrier) is
deemed to be the date of the filing
of that pleading. [Benguet Electric
Cooperative v. NLRC (1992)]
2. By Registered Mail
a. Filing by mail should be through
the registry service (i.e. by
depositing the pleading in the post
office).
b. The pleading is deemed filed on the
date it was deposited with the post
office.
the date of filing
a. Date of filing is determinable from
2 sources:
(1) From the post office stamp on
the envelope
(2) From the registry receipt
b. It is done by depositing in the post
office:
(1) In a sealed envelope
(2) Plainly addressed to the party
or his counsel
(a) At his office if known
(b) Otherwise, at his residence
if known
(3) Postage fully pre-paid
(4) With instructions to the
postmaster to return the mail
to the sender after 10 days if
undelivered
Substituted Service (Rule 13, Sec. 8)
1. Done by delivery of the copy to the clerk
of court with proof of failure of both
personal and service by mail
2. Proper only when:
43
a. Service cannot be made personally
or by mail
b. Office and place of residence of the
party of his counsel being unknown
3. Service is complete at the time of such
delivery
SERVICE OF JUDGMENTS, FINAL ORDERS, OR
RESOLUTIONS (Rule 13, Sec. 9)
Service is done either:
1. Personally
2. By registered mail
3. By publication ONLY IF:
a. Party is summoned by publication
AND
b. He failed to appear in the action
NOTE: There is NO substituted service
of judgments and final orders
PRIORITIES IN MODES OF SERVICE AND FILING
General rule: Personal filing and service is
preferred. (Rule 13, Sec. 11)
Resort to other modes of filing and service must
be accompanied by an explanation why the
service/filing was not done personally. If there
is no written explanation, the paper is
considered not filed.
Exception: Papers emanating from the court.
WHEN SERVICE IS DEEMED COMPLETE
Completeness of
Proof of service
service (Rule 13 Sec.
(Rule 13 Sec. 13)
10)
Personal service
Written admission of
the party served, OR
Official return of the
server OR
Upon actual delivery Affidavit of the party
serving, with a full
statement of the
date/place/manner of
service.
Service by ordinary mail
10 days after mailing, Affidavit of the person
unless otherwise mailing of facts showing
provided by the compliance with Sec. 7
court of Rule 13.
Service by registered mail
Affidavit of the person
Whichever is earlier:
mailing of facts showing
compliance with Sec. 7
Actual receipt by the
of Rule 13
addressee
OR
AND
5 days after the
addressee received
Registry receipt issued
1st postmaster's
by the post office
notice (Constructive)
Substituted Service
At the time of delivery of the copy to the clerk of
court together with proof of failure of both
personal service and service by mail
Purpose of the rule on completeness of service for
service by registered mail:
To make sure that the party being served with
the pleading, order or judgment is duly informed
of the same so that such party can take steps to
protect the interests, i.e., enable to file an appeal
or apply for other appropriate reliefs before the
decision becomes final. [MINTERBRO v,CA
(2012)]
Service to the lawyer binds the party. But
service to the party does not bind the lawyer,
unless ordered by the court in the following
circumstances:
1. When it is doubtful who the attorney for
such party is; or
2. When the lawyer cannot be located; or
3. When the party is directed to do
something personally, as when he is
ordered to show cause. [Retoni, Jr. v.
CA]
Notice to the lawyer who appears to have been
unconscionably irresponsible cannot be
considered as notice to his client, as it would
then be easy for the lawyer to prejudice the
interests of his client by just alleging that he just
forgot every process of the court affecting his
clients, because he was so busy. [Bayog v.
Natino]
PROOF OF FILING
1. Filing is proved by its existence in the
record of the case (Rule 13, Sec. 12)
2. If it is not in the record:
When pleading is
Proof of filing
deemed filed
Personally
44

Upon receipt of the Written/stamped thereof of the

pleading by the clerk acknowledgment by the unclaimed letter
of court clerk of court together with the
By registered mail certified or sworn copy
Registry receipt, and of the notice given by
affidavit of the person the postmaster to the
who did the mailing addressee.
with:
(a) Full statement
of the AMENDMENT AND SUPPLEMENTAL
date/place of PLEADINGS
depositing the
mail in the post HOW TO AMEND PLEADINGS (Rule 10, Sec. 1)
On the date the office in a 1. Adding an allegation of a party;
pleading was sealed envelope 2. Adding the name of a party;
deposited with the addressed to 3. Striking out an allegation of a party;
post office the court 4. Striking out the name of a party;
(b) Postage fully 5. Correcting a mistake in the name of a
paid party; and
(c) Instructions to 6. Correcting a mistaken or inadequate
the postmaster allegation or description in any other
to return the respect
mail to the
sender after 10 A new copy of the entire pleading,
days if incorporating the amendments, which
undelivered shall be indicated by appropriate marks,
shall be filed. (Rule 10, Sec. 7)

Purpose: That the actual merits of the

PROOF OF SERVICE (Rule 13, Sec. 13) controversy may speedily be determined,
without regard to technicalities, and in the most
MODE PROOF OF SERVICE expeditious and inexpensive manner.
A written admission of
the party served, OR As a general policy, liberality in allowing
The official return of amendments is greatest in the early stages of a
the server; OR law suit, decreases as it progresses and changes
Personal Service Affidavit of the party at times to a strictness amounting to a
serving containing a prohibition. This is further restricted by the
full statement of the condition that the amendment should not
date, place, and prejudice the adverse party or place him at a
manner of service disadvantage. (Barfel Development v. CA, 1993)
Affidavit of the person
mailing stating the Types of Amendments:
Service by ordinary 1. Amendment as a matter of right
facts showing
mail 2. Amendment as a matter of judicial
compliance with Rule
13, Sec. 7 discretion
Affidavit of person
mailing containing
facts showing AMENDMENTS AS A MATTER OF RIGHT (Rule
compliance with Rule 10, Sec. 2)
13, Sec. 7, AND
Service by registered Registry receipt issued When amendment is allowed as a matter of right:
mail by mailing office; OR 1. Once as a matter of course
a. A 2nd or subsequent amendment
The registry return
must now be with leave of court,
card which shall be
filed immediately upon not a matter of right anymore
2. Instances:
its receipt by the
a. Substantial amendment before
sender, or in lieu
responsive pleading is filed
45
(1) Amendment of complaint
before an answer is filed.
(2) Amendment of answer before a
reply is filed or before the
period for filing a reply expires
(3) Amendment of reply any time
within 10 days after it is served
b. Formal amendment
AMENDMENTS BY LEAVE OF COURT (Rule 10,
Sec. 3)
When leave of court is necessary before
amendment is allowed:
1. All substantial amendments (unless it
falls under Rule 10, Sec. 2 as a matter of
right)
2. When a responsive pleading has already
been served
Requisites:
1. A motion for leave of court to amend
pleading is filed
a. Amended pleading should be
attached to the motion (see Sec. 9,
Rule 15)
2. Notice is given to the adverse party
3. Parties are given opportunity to be
heard
Grounds for allowance of the amendment
1. If it appears to the court that the motion
was made to delay the action, leave of
court is not given
2. There must be some reasonable
grounds justifying its exercise of
discretion to allow amendment
When amendment by leave of court may not be
allowed
1. If the cause of action, defense or theory
of the case is changed.
2. If amendment is intended to confer
jurisdiction to the court.
a. If the court has no jurisdiction in
the subject matter of the case, the
amendment of the complaint
cannot be allowed so as to confer
jurisdiction on the court over the
property. [PNB v. Florendo (1992)]
3. If amendment is for curing a premature
or non-existing cause of action.
4. If amendment is for purposes of delay.
FORMAL AMENDMENTS (Rule 10, Sec. 4)
When an amendment is formal:
1. When there is a mere defect in the
designation of the parties;
2. Other clearly clerical or typographical
errors
How formal amendments are effected
1. It may be summarily corrected by the
court at any stage of the action
2. A party may, by motion, call for the
formal amendment
NOTE: The formal amendment must NOT cause
prejudice to the adverse party
AMENDMENTS TO CONFORM TO OR
AUTHORIZE PRESENTATION OF EVIDENCE
(Rule 10, Sec. 5)
Applicability of Sec. 5 - This is an instance
wherein the court acquires jurisdiction over the
issues even if the same are not alleged in the
original pleadings of the parties where the trial
of said issues is with the express or implied
consent of the parties
What Sec. 5 contemplates:
1. It allows a complaint which states no
cause of action to be cured either by:
a. Evidence presented without
objection or
b. In the event of an objection
sustained by the court, by an
amendment of the complaint with
leave of court
2. It also allows the admission of evidence:
a. On a defense not raised in a motion
or answer if no objection is made
thereto;
b. In the event of such objection, court
may allow amendment of the
answer in order to raise said
defense
NOTE: Remember, however, that where the
plaintiff has no valid cause of action at the time
of the filing of the complaint, this defect cannot
be cured or remedied by the acquisition or
accrual of one while the action is pending
Two Scenarios:
1. When evidence is NOT objected to
When issues not raised by
pleadings are tried by express or
implied consent of the parties, they
shall be treated in all respected as if
they had been raised in the
pleadings
46

Such amendments of pleadings as available at time of the arose after the 1st
may be necessary to cause them to 1st pleading pleading was filed
conform to the evidence and raise Either as a matter of
Always a matter of
these issues may be made upon right or a matter of
discretion
motion of any party at any time, discretion
even after judgment Merely supplements
But failure to amend does not affect Supersedes the the original (i.e. Exists
the result of the trial of those issues original side by side with the
original pleading)
2. When evidence IS objected to: A supplemental
When an amended
Objection on the ground that it is pleading does not
pleading is filed, a new
not within the issues made by the require the filing of a
copy of the entire
pleadings new copy of the entire
pleading must be filed
Court may allow the pleadings to be pleading
amended and shall do so freely
when the presentation of the merits Limitations:
of the action will be subserved 1. Claims or defenses which have matured
As safeguard, the court may grant a after the filing of the original pleadings
continuance to enable the objecting cannot be averred in a supplemental
party to meet such evidence pleading (it may be the subject of an
amendment)
SUPPLEMENTAL PLEADINGS 2. Supplemental pleadings are not allowed
on separate and distinct causes of
Definition: One which sets forth transactions, action
occurrences or events which have happened a. A supplemental pleading may raise
since the date of the pleading sought to be a new cause of action as long as it
supplemented. [Rule 10, Sec. 6] has some relation to the original
cause of action set forth in the
Purpose: To bring into the records new facts original complaint. [Ada v. Baylon
which will enlarge or change the kind of relief to (2012)]
which the plaintiff is entitled [Ada v. Baylon 3. The admission or non-admission of a
(2012), citing Young v. Spouses Yu] supplemental pleading is not a matter
of right but is discretionary on the court
A supplemental complaint/pleading supplies
deficiencies in aid of an original pleading, not to
entirely substitute the latter. EFFECT OF AMENDED PLEADING (Rule 10, Sec.
8)
How Made: It is made upon motion of a party 1. An amended pleading supersedes the
with reasonable notice and upon terms as are pleading that it amends
just. 2. Admissions in the superseded pleading
can still be received in evidence against
Difference with Amended Pleading the pleader
3. Claims or defenses alleged therein but
not incorporated or reiterated in the
Supplemental
Amendments amended pleading are deemed waived
pleadings
Reason for the Grounds for the
amendment is supplemental pleading
SUMMONS
Purposes of Summons
Definition: A coercive force issued by the court 1. For Actions in Personam
to acquire jurisdiction over the person of the a. To acquire jurisdiction over the
defendant person of the defendant in a civil
case;
b. To give notice to the defendant that
NATURE AND PURPOSE OF SUMMONS IN an action has been commenced
RELATION TO ACTIONS IN PERSONAM, IN REM, against him.
AND QUASI IN REM
2. For Actions in Rem and Quasi In Rem
47
a. Not to acquire jurisdiction over the
defendant but mainly to satisfy the
constitutional requirement of due
process
b. Jurisdiction over the defendant is
not required and the court acquires
jurisdiction over an action as long
as it acquires jurisdiction over the
res
Issuance of Summons - Upon the filing of the
complaint and the payment of legal fees, the
clerk of court shall issue the corresponding
summons to the defendants. [Rule 14, Sec. 1]
Contents of Summons (Rule 14, Sec. 2)
1. Summons shall be:
a. Directed to the defendant
b. Signed by clerk of court under seal
2. Summons shall contain:
a. Name of the court and the names of
the parties to the action
b. A direction that the defendant
answer within the time fixed by the
Rules
c. A notice that unless the defendant
so answers, plaintiff will take
judgment by default and may be
granted the relief applied for
3. The following shall be attached to the
original and each copy of the summons:
a. A copy of the complaint
b. Order for appointment of guardian
ad litem (if any)
Effect of Invalid Summons
1. The trial court does not acquire
jurisdiction and renders null and void
all subsequent proceedings and
issuances (Syjuco v. Castro)
2. Any judgment without service of
summons in the absence of a valid
waiver is null and void (Filmerco
Commercial Co. v. IAC)
VOLUNTARY APPEARANCE
Any form of appearance in court, by the
defendant, by his agent authorized to do so, or
by attorney, is equivalent to service except
where such appearance is precisely to object the
jurisdiction of the court over the person of the
defendant (Carballo v. Encarnacion)
General Rule: Defendant's voluntary appearance
in the action shall be equivalent to service of
summons;
Exception: Special appearance to file a MTD.
BUT inclusion in the MTD of grounds other than
LOJ over the defendants person, is not deemed a
voluntary appearance.
Any mode of appearance in court by a defendant
or his lawyer is equivalent to service of
summons, absent any indication that the
appearance of counsel for petitioner is precisely
to protest the jurisdiction of the court over the
person of the defendant. [Delos Santos v.
Montesa (1993)]
WHO MAY SERVE SUMMONS
Who May Serve Summons (Rule 14, Sec. 3)
1. The sheriff
2. His deputy
3. Other proper court officer
4. Any suitable person authorized by the
court (for justifiable reasons)
NOTE: The enumeration in Sec. 3 of the
persons who may validly serve
summons is EXCLUSIVE (Herrera)
RETURN OF SUMMONS
Return When Service has been Completed (Rule
14, Sec. 4)
1. The server shall serve a copy of the
return to the plaintiffs counsel
a. Within 5 days therefrom
b. Personally or by registered mail
2. The server shall return the summons
a. To the clerk who issue it
b. Accompanied by proof of service
It is required to be given to the plaintiffs
counsel in order to enable him:
1. To move for a default order should the
defendant fail to answer on time, or
2. In case of non-service, so that alias
summons may be sought
In either of the 2 cases, server must
serve a copy of the return on plaintiffs
counsel within 5 days from completion
or failure of service
ALIAS SUMMONS (Rule 14, Sec. 5)
48

sufficient age
Upon plaintiffs demand, the clerk may issue an and discretion
alias summons if either: at the partys or
1. Summons is returned without being counsels
served on any/all of the defendants. residence
2. Summons was lost.

The server shall also serve a copy of the return
on the plaintiff's counsel within 5 days
therefrom, stating the reasons for the failure of
service
MODES OF SERVICE OF SUMMONS
SUBSTITUTED SERVICE OF SUMMONS (Rule 14,
Sec. 7)
It is only when the defendant cannot be served
personally within a reasonable time and for
justifiable reasons that a substituted service
may be made.

Modes: How Done:

1. Personal Service (Rule 14, Sec. 6) 1. By leaving copies of the summons at the
2. Substituted Service (Rule 14, Sec. 7) defendants residence with some
3. Service by Publication (Rule 14, Sec. 14, person of suitable age and discretion
15, 16) residing therein; or
2. By leaving the copies at defendants
NOTE: Summons cannot be served by mail office or regular place of business with
- Where service is made by publication, a some competent person in charge
copy of the summons and order of the thereof
court shall be sent by registered mail to
last known address of defendant (Sec. Necessary Requisite: For substituted service of
15) summons to be valid, it is necessary to establish
Resort to registered mail is only the following:
complementary to the service of 1. The impossibility of the personal
summons by publication service of summons within a reasonable
But it does not mean that service by time
registered mail alone would suffice 2. The efforts exerted to locate the person
to be served; and
3. Service upon:
PERSONAL SERVICE OF SUMMONS (Rule 14, a. A person of sufficient age and
Sec. 6) discretion residing in the same
place as defendant or
How Done: b. Some competent person in charge
1. By handing a copy of summons to him; of his office or regular place of
or business (Spouses Ventura v. CA,
2. If he refuses to receive it, by tendering it 1987)
to him
Meaning of RESIDENCE
Personal Service of 1. For a substituted service to be valid,
Personal Service of
Summons on summons served at the defendants
Pleadings
Defendant residence must be served at his
Rule 13, Sec. 6 Rule 14, Sec. 6 residence AT THE TIME OF SERVICE;
Personal service Service is only made not his former place of residence
includes: on defendant himself 2. dwelling house or residence refers
1. Service on the to the dwelling house at the time of
party or his service
counsel; or 3. They refer to the place where the
2. By leaving a person named in the summons is living
copy with the at the time of when the service is made,
clerk or person even though he may be temporarily out
having charge of of the country at that time (Venturanza
his office; or v. CA)
3. Leaving it with a
person of
49
Meaning of Defendants Office or Regular Place of
Business
1. Office or regular place of business
refers to the office or place of business
of defendant at the time of service
2. The rule specifically designates the
persons to whom copies of the process
should be left
3. To be in charge means to have care an
custody of, under control of, or
entrusted to the management or
direction of (Sandoval II v. House of
Representatives)
Proof of Substituted Service MUST:
1. Indicate the impossibility of service of
summons within a reasonable time;
2. Specify the efforts exerted to locate the
defendant; and
3. State that the summons was served
upon a person of sufficient age and
discretion who is residing in the
address, or who is in charge of the office
or regular place of business, of the
defendant.
4. It is likewise required that the pertinent
facts proving these circumstances be
stated in the proof of service or in the
officers return. [Sps. Tiu v. Villar
(2012)]
CONSTRUCTIVE SERVICE (BY PUBLICATION)
Three Situations were Summons by Publication
may be allowed under Rule 14 (Baltazar v. CA)
1. First is the situation of an Unknown
Defendant governed by Sec. 14
2. Second is the situation were
Extraterritorial service is proper
governed by Sec. 15
3. Third, is that of a resident who is
temporarily out of the Philippines
governed by Sec. 16
The Rule on Unknown Defendants (Rule 14, Sec.
14)
If a defendant is a resident and plaintiff cannot
determine the correct address of respondent,
petitioner only needs to show that:
1. Respondents address is unknown and
2. Cannot be ascertained by diligent
inquiry
Upon compliance with this
requirement, it can validly serve
summons by publication in a
newspaper of general circulation.
(United Coconut Planters Bank v.
Ongpin)
NOTE: Under this Section, summons by
publication can be made in ANY action
(personam, in rem, quasi in rem) unlike in cases
of Non-Resident Defendants.
The Rule on Non-Resident Defendants (Extra-
territorial Service); Rule 14, Sec. 15
Extra-territorial service is allowed IF:
1. The defendant
a. Does not reside in the Philippines
b. And is not found in the Philippines
2. And the action (in rem and quasi in
rem)
a. Affects the personal status of the
plaintiff, or
b. Relates to or the subject of which is
property within the Philippines
(1) In which defendant has or
claims a lien or interest, actual
or contingent; or
(2) In which the relief demanded
consists, wholly or in part, in
excluding the defendant from
any interest therein, or
(3) Property of defendant has been
attached within the Philippines
NOTE: Always remember that extra-
territorial service, when allowed, covers
only action in rem and quasi in rem.
How Extra-territorial service is done:
1. Always by leave of court
2. Modes:
a. Personal service as under Sec. 6,
Rule 14
b. Publication in a newspaper of
general circulation in such places
and for such time as court may
order
(1) A copy of the summons and
order of the court shall be sent
by registered mail to the last
known address of defendant
c. In any other manner the court may
deem sufficient
NOTE: Any order granting such leave shall
specify a reasonable time within which
defendant must answer BUT the time shall not
be less than 60 days after notice
50

The Rule on Residents Temporarily Outside of the guardian ad litem for him
Philippines (Rule 14, Sec. 16) Serve to either: (Exclusive
enumeration)
How done: Domestic
1. The president,
1. Always by leave of court private
2. Managing partner,
2. Modes: juridical
3. General manager,
a. Where the defendant is residing in entity (Sec.
4. Corporate secretary,
the Philippines, jurisdiction over his 11)
5. Treasurer, or
person may be acquired by 6. In- house counsel
substituted service of summons Service may be done on:
under Sec. 7 1. The resident agent;
b. Extra-territorial service is also 2. If no resident agent;
allowed (also by leave of court) a. The government
according to Sec. 16 Foreign
official
private
designated by
NOTE: In other words, a resident defendant in juridical
law; or
an action personam, who cannot be personally entity (Sec.
b. Any officer or
served with summons, may be summoned either 12)
agent of the
by: corporation
1. Substituted service in accordance with within the
Sec. 7, Rule 14 Philippines
2. Or by service by publication under Sec. In case defendant is the
16, Rule 14 Republic, by serving upon the
Solicitor General
When the action is in rem or quasi in rem, extra- Public In case of a province, city or
territorial service may be effected provided that corporations municipality, or like public
Sec. 16 requirements are met. (Sec. 13) corporations, by serving on its
executive head or on such
other officer or officers as the
SERVICE UPON PRISONERS AND MINORS law or the court may direct

Service of Summons on Different Entities:

PROOF OF SERVICE
DEFENDANT SERVICE OF SUMMONS
Entity The proof of service of summons (Rule 14, Sec.
Upon any or all the
without 18):
defendants being sued under
juridical 1. Shall be made in writing
common name; or person in
personality 2. It shall:
charge of the office
(Sec. 8) a. Set forth the manner, place, date of
In case of minors: by serving service
upon: b. Specify any papers which may have
1. The minor, regardless been served with the process and
of age, AND the name of the person who
2. Upon his legal received the same
guardian, or also c. Shall be sworn to when made by a
upon either of his person, other than the sheriff or his
parents deputy
In case of incompetents: by
Minors and
serving on: If service has been made by publication, service
incompetents
1. Him personally AND may be proved by: (Rule 14, Sec. 19)
(Sec. 10)
2. Upon his legal 1. The affidavit of the printer, his foreman,
guardian, but not or principal clerk; or of the editor,
upon his parents, business or advertising manager
unless they are his Copy of the publication shall be
legal guardians attached
In any event: if the minor or
incompetent has no legal 2. AND an affidavit showing:
guardian, the plaintiff must a. The deposit of a copy of the
obtain the appointment of a summons; and
51

b. Order of publication in the post 2. Defective return is insufficient and

office, postage prepaid, directed to incompetent to prove that summons
defendant by registered mail to his was indeed served
last known address 3. Party alleging valid summons will now
prove that summons was indeed served
Effect of Defect of Proof of Service: 4. If there is no valid summons, court did
1. Where sheriffs return is defective, not acquire jurisdiction which renders
presumption of regularity in the null and void all subsequent
performance of official functions will proceedings and issuances
not lie

MOTIONS General Rule: In writing.

MOTIONS IN GENERAL Exception: Oral motions:

1. Motions for continuance made in the
DEFINITION OF A MOTION presence of the adverse party or those
made in the course of the hearing or
A motion is an application for relief other than trial
by a pleading. (1a) 2. Those made in open court even in the
absence of the adverse party or those
made in the course of a hearing or trial
MOTIONS VERSUS PLEADINGS

NOTICE OF HEARING AND HEARING OF

Motion Pleading MOTIONS

Contains allegations of Contains allegations of Requisites of motions (not made in open court or
facts the ultimate facts in the course of hearing/trial)
Prays for a relief Prays for a relief
Grant of the relief does Grant of relief 1. It must be in writing; [Rule 15, Sec. 2]
not extinguish the extinguishes the action
action (interlocutory (final relief) Exception: Oral motions
relief)
Generally in writing Always in writing 2. Hearing on the motion set by the
(with some applicant
exceptions)
Motion Day (Rule 15, Sec. 7) - Except for
urgent motions, motions are scheduled
General Rule: A motion cannot pray for judgment
for hearing:
a. On Friday afternoons;
Exceptions:
b. Afternoon of the next working day,
1. Motion for judgment on the pleadings.
if Friday is a non-working day.
2. Motion for summary judgment.
3. Motion for judgment on demurrer to
3. Notice of hearing shall be addressed to
evidence.
all parties, and shall specify the time
and date of the hearing which shall not
be later than 10 days from the filing of
CONTENTS AND FORM OF MOTIONS
the motion. [Rule 15, Sec. 5]
Contents (Rule 15, Sec. 3)
Notice must be addressed to the
1. Relief sought to be obtained
counsels. A notice of hearing addressed
2. Grounds upon which it is based
to the clerk of court, and not to the
3. Accompanied by supporting affidavits
parties, is no notice at all. Accordingly, a
and other papers if:
motion that does not contain a notice of
a. Required by the Rules, or
hearing to the adverse party is nothing
b. Necessary to prove facts alleged
but a mere scrap of paper, as if it were
therein
not filed; hence, it did not suspend the
running of the period to appeal.
Form (Rule 15, Sec. 2)
52
[Provident International Resources v.
CA (1996)]
- Effect of Want of Notice: A motion that
does not contain a notice of hearing is
but a mere scrap of paper. A court has
no jurisdiction to issue an order in
consideration of a motion for correction
of judgment which does not have a
proper notice of hearing (Fajardo v. CA)
4. Motion and notice of hearing must be
served at least 3 days before the date of
hearing; [Rule 15, Sec. 4]
Purpose: To prevent surprise upon the
adverse party and to enable the latter to
study and meet the arguments of the
motion.
Exceptions:
a. Ex parte motions;
b. Urgent motions;
c. Motions agreed upon by the parties
to be heard on shorter notice, or
jointly submitted by the parties;
d. Motions for summary judgment
which must be served at least 10
days before its hearing.
5. Proof of Service
Proof of Service (Rule 15, Sec. 6)
General Rule: A written motion set for hearing
will not be acted upon by the court if there is no
proof of service thereof.
What may be proof:
1. If by registered mail: Affidavit or
registry receipt or postmark on
envelope or return card, with an
explanation.
2. If by personal service: Affidavit or
acknowledgment of receipt by the other
party.
Exceptions:
1. If the motion is one which the court can
hear ex parte.
2. If the court is satisfied that the rights of
the adverse parties are not affected by
the motion.
3. If the party is in default because such a
party is not entitled to notice.
OMNIBUS MOTION RULE
Definition: A motion attacking a pleading/
order/ judgment/ proceeding must include all
objections then available. All objections not
included in the motion are deemed waived.
Purpose: To require the movant to raise all
available exceptions for relief during a single
opportunity so that multiple and piece-meal
objections may be avoided
Exception: When the courts jurisdiction is in
issue:
1. Lack of jurisdiction over subject-matter;
2. Litis pendentia;
3. Res judicata;
4. Prescription.
LITIGATED AND EX PARTE MOTIONS
Kinds of Motion
1. Motion Ex Parte - Made without
notification to the other party because
the question generally presented is not
debatable.
2. Litigated Motion - Made with notice to
the adverse party so that an opposition
thereto may be made.
3. Motion Of Course - Motion for a kind of
relief/remedy to which the movant is
entitled to as a matter of right,
Allegations contained in such motion do
not have to be investigated/verified.
4. Special Motion - Discretion of the court
is involved. An investigation of the facts
alleged is required.
PRO FORMA MOTIONS
Definition - A motion failing to indicate time and
date of the hearing
53
MOTIONS FOR BILL OF PARTICULARS
DEFINTION
It is a detailed explanation respecting any
matter which is not averred with sufficient
definiteness/particularity in the complaint as to
enable a party to properly prepare his
responsive pleading or to prepare for trial. [Rule
12, Sec. 1]
PURPOSE AND WHEN APPLIED FOR
It is filed by the plaintiff pursuant to a court
order issued upon granting a motion for Bill of
Particulars filed by the defendant before the
latter files an answer.
- In said motion, the defendant prays for
a more definite statement of matters
which are not averred with sufficient
definiteness in the complaint.
- An action cannot be dismissed on the
ground that the complaint is
vague/indefinite. The remedy of the
defendant is to move for a Bill of
Particulars or avail of the proper mode
of discovery. [Galeon v. Galeon (1973)]
Purpose: to define/ clarify/ particularize/ limit/
circumscribe the issues in the case to expedite
the trial and assist the court.
- The only question to be resolved in a
motion for a Bill of Particulars is WON
the allegations in the complaint are
averred with sufficient definiteness/
particularity to enable the movant to
properly prepare his responsive
pleading and to prepare for trial.
[Tantuico, Jr. v. Republic (1991)]
- A Bill of Particulars becomes part of the
pleading for which it was intended.
[Rule 12, Sec. 6]
When Applied For: [Rule 12, Sec. 1]
1. Before responding to a pleading
2. If the pleading is a reply, within 10 days
from service thereof
What a Motion for a Bill of Particulars should
point out: (Rule 12, Sec. 1)
1. The defects complained of;
2. The paragraph wherein they are
contained;
3. The details desired.
What cannot be done in a Bill of Particulars:
- To supply material allegations
necessary to the validity of a pleading
- To change a cause of action or defense
stated in the pleading
- To state a cause of action or defense
other than that one stated
- To set forth the pleaders theory of his
cause of action or a rule of evidence on
which he intends to reply
- To furnish evidentiary information
ACTIONS OF THE COURT
Upon the filing of the motion, the clerk must
immediately bring it to the attention of the
court.
The court may: (Rule 12, Sec. 2)
1. Deny
2. Grant the motion outright
3. Allow the parties the opportunity to be
heard
COMPLIANCE WITH THE ORDER AND EFFECT
OF NONCOMPLIANCE
Compliance with Order (Rule 12, Sec. 3) If
motion is granted wholly/partially:
1. Within 10 days from notice of order, Bill
of Particulars or a more definite
statement should be submitted (unless
court fixes a different period).
2. Bill of Particulars or definite statement
filed either as a separate pleading or as
an amended pleading, a copy of which
must be served on the adverse party.
Effect of Non-Compliance (Rule 12, Sec. 4)
1. In case of non-compliance or
insufficient compliance with the order
for Bill of Particulars, the court:
a. May order the striking out of the
pleading (or portion thereof) to
which the order is directed; OR
b. Make such order as it may deem
just.
2. If a party fails to obey:
a. If the plaintiff fails to obey, his
complaint may be dismissed with
prejudice unless otherwise ordered
by the court. [Rule 12, Sec. 4; Rule
17, Sec. 3]
b. If defendant fails to obey, his
answer will be stricken off and his
counterclaim dismissed, and he will
be declared in default upon motion
of the plaintiff. [Rule 9, Sec. 3; Rule
12, Sec. 4; Rule 17, Sec. 4]
54

IN ANY CASE: The party will have at

EFFECT ON THE PERIOD TO FILE PLEADING least 5 days to file his responsive
(Rule 12, Sec. 5) pleading

A Motion for Bill of Particulars interrupts the

period to file a responsive pleading.
BUT only if it is sufficient in the form
and substance.

The period to which the movant is entitled at the

time of filing of the motion, which shall not be
less than 5 days in any event.

NOTE the following distinctions:

Bill of Particulars
Intervention
Purpose is to enable a
party bound to
respond to a pleading Purpose is to enable a
to get more details person not yet a party
about matters which to an action, yet having
are alleged generally a certain right or
or which are indefinite interest in such action,
and vague, the opportunity to
appear and be joined
so as to properly guide
such party in so he could assert or
answering the protect such right or
pleading and to avoid interest
surprise in the trial of
the case
Available to any
person not yet a party
to the action at any
Available to the
time after the
defendant before he
commencement of an
files his responsive
action, even during the
pleading
proceeding, but not
after the trial has been
concluded

Effect of Motion:
1. If the motion is granted, in whole or in
part,
a. The movant can wait until the bill of
particulars is served on him by
opposing party
b. Then he will have the balance of the
reglementary period within which
to file his responsive pleading
2. If the motion is denied
a. He will still have such balance of
the reglementary period to file his
responsive pleading, counted from
service of the order denying his
motion
55
MOTION TO DISMISS
IN GENERAL
Definition A remedy of the defendant, or the
responding party in general, which attacks the
entire pleading and seeks its dismissal based on:
1. Grounds which are patent on the face of
the complaint;
2. Defenses available to the defendant at
the time of the filing of the complaint
It hypothetically admits the facts stated in the
complaint.
It is not a responsive pleading. It is not a
pleading at all. It is subject to the omnibus
motion rule since it is a motion that attacks a
pleading. Hence, it must raise all objections
available at the time of the filing thereof.
Types of Dismissal of Action:
1. MTD before answer under Rule 16;
2. MTD under Rule 17:
a. Upon notice by plaintiff;
b. Upon motion by plaintiff;
c. Due to fault of plaintiff.
3. Demurrer to evidence after plaintiff has
completed the presentation of his
evidence under Rule 33;
4. Dismissal of an appeal.
Period to File: Within the time for, but before
filing of, the answer to the complaint or pleading
asserting a claim
Exceptions:
a. For special reasons which may be
allowed even after trial has begun, a
motion to dismiss may be filed
b. The court has allowed the filing of a
motion to dismiss where the
evidence that would constitute a
ground for dismissal was
discovered during trial
General Rule: A court may NOT motu propio
dismiss a case, unless a motion to that effect is
filed by a party.
Exceptions:
1. Cases where the court may dismiss a
case motu propio; [Rule 9, Sec. 1]
2. Failure to prosecute; [Rule 17, Sec. 3]
3. Sec. 4, Revised Rule on Summary
Procedure.
GROUNDS: Rule 16, Sec. 1
1. Lack of jurisdiction over the defendants
person
2. Lack of jurisdiction over the subject
matter of the claim
3. Improper venue
4. Plaintiffs lack of legal capacity to sue
5. Litis pendentia
6. Res judicata
7. Prescription
8. Failure to state a cause of action
9. Extinguished claim
10. Unenforceable claim under the Statute
of Frauds
11. Non-compliance with a condition
precedent for filing claim
NOTE: Complaints cannot be dismissed on
ground not alleged in a motion to dismiss. The
motion may be based on only one of the grounds
enumerated in Sec. 1, Rule 16
Lack of Jurisdiction (LOJ) over the Defendants
Person
The objection of LOJ over the person on account
of lack of service or defective service of
summons, must be raised:
1. At the very first opportunity;
2. Before any voluntary appearance is
made.
In La Naval Drug Corp. v. CA, et al. the Court held
that while lack of jurisdiction over the person of
defendant may be duly and seasonably raised,
his voluntary appearance in court without
qualification is a waiver of such defense.
Appearance of counsel is equivalent to
summons, unless such is made to protest the
jurisdiction of the court over the person of the
defendant. If grounds other than invalid service
of summons are raised, it cannot be considered
as a special appearance. [De los Santos v.
Montesa (1993)]
NOTE: Sec. 20, Rule 14 makes a categorical
statement that 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 voluntary appearance on
his part.
Lack of Jurisdiction over the Subject Matter of the
Claim
56
If the complaint shows on its face LOJ, the court
may dismiss the case outright instead of hearing
the motion.
A MTD on the ground of LOJ over the subject
matter may be raised either:
1. Before answer;
2. After answer is filed;
3. After hearing had commenced;
4. At any stage of the proceeding, even for
the first time on appeal and even if no
such defense is raised in the answer.
NOTE: The rule refers to the subject matter of
each particular claim and not only to that of the
suit. Hence. other initiatory pleadings included.
Where a party invokes the jurisdiction of a court
to obtain affirmative relief and fails, he cannot
thereafter repudiate such jurisdiction. While the
issue of jurisdiction may be raised at any time,
he is estopped as it is tantamount to speculating
on the fortunes of litigation (Crisostomo, et al. v.
CA)
Improper Venue
Unless and until the defendant objects to the
venue in a MTD prior to a responsive pleading,
the venue cannot truly be said to have been
improperly laid since, for all practical intents
and purposes, the venue though technically
wrong may yet be considered acceptable to the
parties for whose convenience the rules on
venue had been devised. Improper venue may
be waived and such waiver may occur by laches.
[Diaz v. Adiong (1993)]
Where a motion to dismiss for improper venue
is erroneously denied, the remedy is prohibition
(Enriquez v. Macadaeg)
Where the plaintiffs filed the action in a court of
improper venue and thereafter submitted to its
jurisdiction, the issue of venue was thereby
waived and they are in estoppel to repudiate or
question the proceedings in said court (Vda. De
Suan, et al. v. Cusi, et al.)
Objection to venue is also impliedly waived
where the party enters into trial, cross-examines
the witnesses of the adverse party and adduces
evidence (Paper Industries Corp of the
Philippines v. Samson et al.)
Plaintiffs Lack of Legal Capacity to Sue:
The plaintiff lacks legal capacity to sue:
1. When he does not possess the
necessary qualification to appear at the
trial (e.g. when he plaintiff is not in the
full exercise of his civil rights);
2. When he does not have the character
which he claims, which is a matter of
evidence (e.g. when he is not really a
duly appointed administrator of an
estate).
Lack of legal capacity to sue refers to plaintiffs
disability; while lack of legal personality to sue
refers to the fact that the plaintiff is not a real
party in interest, in which case the ground for
dismissal would be that the complaint states no
cause of action.
The issue of plaintiffs lack of legal capacity to
sue cannot be raised for the first time on appeal
where the defendant dealt with the former as a
party in the proceedings below (Univ. of
Pangasinan Faculty Union v. Univ. of Pangasinan)
Litis pendentia
Requisites: (Anderson Group v. CA, 1997)
1. Identity of parties;
2. identity of rights asserted and relief
prayed for;
3. Relief founded on the same facts and
the same basis;
4. Identity in the 2 proceedings should be
such that any judgment which may be
rendered in the other action will
amount to res judicata on the action
under consideration.
It is not required to allege that there be a prior
pending case. It is sufficient to allege and prove
the pendency of another case, even if same had
been brought later.
It does not require that the later case be
dismissed in favor of the earlier case. To
determine which case should be abated, apply:
1. The More Appropriate Action Test;
2. The Interest of Justice Test, taking into
account:
a. Nature of the controversy;
b. Comparative accessibility of the
court to the parties;
c. Other similar factors.
In both tests, the parties good faith shall be
taken into consideration.
57
The 1st case shall be abated if it is merely an
anticipatory action or defense against an
expected suit. The 2nd case will not be abated if
it is not brought to harass. [Vitrionics Computers
v. RTC (1993)]
Res Judicata
Requisites:
1. Former judgment rendered by a court
having jurisdiction over the subject
matter and over the parties;
2. Judgment must be a final judgment;
3. Judgment must be on the merits;
a. There can be res judicata without a
trial, such as in a judgment on the
pleadings (Rule 34); a summary
judgment (Rule 35); or an order of
dismissal under Rule 17, Sec. 3.
4. There must be identity of parties, of
subject matter and of the causes of
action.
For res judicata to apply, absolute identity of
parties is not required because substantial
identity is sufficient. Inclusion of additional
parties will not affect the application of the
principle of res judicata.
The test of identity of cause of action lies not in
the form of the action but on WON the same
evidence would support and establish the
former and the present causes of action. [DBP v.
Pundogar (1993)]
Rationale: The sum and substance of the whole
doctrine is that a matter once judicially decided
is finally decided because of:
1. Public policy and necessity makes it the
interest of the State that there should be
an end to litigation;
2. The hardship on the individual that he
should be vexed twice for the same
cause. [Nabus v. CA (1991)]
Two concepts of res judicata [Abalos v. CA 1993)
1. Bar by prior judgment Judgment on
the merits in the 1st case constitutes an
absolute bar to the subsequent action
not only as to every matter which was
offered and received to sustain or
defeat the claim/demand, but also to
any other admissible matter which
might have been offered for that
purpose and to all matters that could
have been adjudged in that case. (Asked
in the 2002 Bar Exam)
2. Conclusiveness of judgment Where the
2nd action between the parties is upon
a different claim/demand, the judgment
in the 1st case operates as an estoppel
only with regard to those issues directly
controverted, upon the determination
of which the judgment was rendered.
Statute of Limitations
Prescription applies only when the complaint on
its face shows that indeed the action has already
prescribed.
If the fact of prescription is not indicated on the
face of the complaint and the same may be
brought out later, the court must defer decision
on the motion until such time as proof may be
presented on such fact of prescription.
Prescription Laches
Concerned with the Concerned with the
fact of delay effect of delay
A matter of time A matter of equity
Statutory Not statutory
Applies in law Applies in equity
Based on fixed time Not based on fixed
time
Defense of prescription is waived and cannot be
considered on appeal if not raised in the trial
court (Ramos v. Osorio)
However, if the allegations of the complaint, or
evidence presented, clearly indicate that the
action has prescribed, or where there is no issue
in fact as to prescription, defense of prescription
is not deemed waived by failure to allege the
same (Chua Lamko v. Dioso)
Estoppel and prescription cannot be invoked
against the State (Republic v. CA)
A motion to dismiss on the ground of
prescription will be given due course only if the
complaint shows on its face that the action has
already prescribed (Sison v. McQuaid)
If it is not apparent on its face, take note that
Sec. 3 prohibits deferment of the resolution of
the motion. Thus:
1. Evidence may be received in support of
the motion under Sec. 2, Rule 16; or
2. The motion to dismiss should be denied
without prejudice to the complaints
dismissal if evidence disclose that the
58

action had already prescribed (Sec. 1, evidence presented

Rule 9) and with prejudice

Complaint States No Cause of Action Extinguished Claim

Failure to state a cause of action (not lack of
cause of action) is the ground for a MTD. The
former means there is insufficiency in the
allegations in the pleading. The latter means that
there is insufficiency in the factual basis of the
action.
That the claim/demand set forth in the
plaintiff's pleading has been paid, waived,
abandoned or otherwise extinguished.
Unenforceable Claim under the Statute of Frauds

The failure to state a cause of action must be Article 1403 (2) CC requires certain contracts to
evident on the face of the complaint itself. be evidenced by some note or memorandum in
order to be enforceable, to wit:
Test: Assuming the allegations and statements 1. An agreement that by its terms is not to
to be true, does the plaintiff have a valid cause of be performed within a year from the
action? making thereof;
2. A special promise to answer for the
A MTD based upon the ground of failure to state debt, default, or miscarriage of another;
a cause of action imports a hypothetical 3. An agreement made in consideration of
admission by the defendant of the facts alleged marriage, other than a mutual promise
in the complaint. to marry;
4. An agreement for the sale of goods,
If the court finds the allegations of the complaint chattels or things in action, at a price
to be sufficient but doubts their veracity, it must not less than five hundred pesos, unless
deny the MTD and require the defendant to the buyer accept and receive part of
answer and then proceed to try the case on its such goods and chattels, or the
merits. evidences, or some of them, of such
things in action, or pay at the time some
A complaint containing a premature cause of part of the purchase money; but when a
action may be dismissed for failure to state a sale is made by auction and entry is
cause of action. made by the auctioneer in his sales
book, at the time of the sale, of the
If the suit is not brought against the real party- amount and kind of property sold,
in-interest, a motion to dismiss may be filed on terms of sale, price, names of the
the ground that the complaint states no cause of purchasers and person on whose
action. [Tanpinco v. IAC (1992)] account the sale is made, it is a
sufficient memorandum;
Complaint states no 5. An agreement for the leasing for a
No cause of action
cause of action longer period than one year, or for the
Insufficiency of sale of real property or of an interest
Insufficiency of factual
allegations in the therein;
basis for the action
pleading 6. A representation as to the credit of a
May be raised in a third person.
Motion to Dismiss at
any time but before Unlike a motion to dismiss on the ground that
may be raised at any
the filing the answer to the complaint states no cause of action, a motion
time
the complaint or invoking the Statute of Frauds may be filed even
pleading asserting a if the absence of a cause of action does not
claim appear on the face of the complaint. Such
dismissal due to lack absence may be proved during the hearing of
Dismissal due to the motion to dismiss on said ground.
of cause of action is
failure to state a cause (Yuviengco et al. v. Dacuycuy, etc., et al.)
made after questions
of action can be made
of fact have been
at the earliest stages of
resolved on the basis
an action and without Non-Compliance with a Condition Precedent
of stipulations,
prejudice
admissions or
59

Where the plaintiff has not exhausted all The court cannot defer the resolution of the
administrative remedies, the complaint not MTD for the reason that the ground relied upon
having alleged the fact of such exhaustion, the is not indubitable.
same may be dismissed for lack of cause of
action (Pineda v. CFI Davao, et al.) The courts resolution on the MTD must clearly
and distinctly state the reasons therefor.
Where the complaint does not state that it is one
of the excepted cases, or it does not allege prior
availment of conciliation process, or it does not REMEDIES OF PLAINTIFF WHEN THE
have a certification that no conciliation or COMPLAINT IS DISMISSED
settlement had been reached under P 1508, case
should be dismissed on motion (Morata v. Go, et If the motion is granted, the complaint is
al.) dismissed. Since the dismissal is final and not
interlocutory in character, the plaintiff has
Where the defendant had participated in the several options:
trial court without any invocation of PD 1508,
and the judgment therein had become final and 1. Depending upon the ground for the
executory, but said defendant thereafter sought dismissal of the action, the plaintiff may
the annulment of the decision for alleged lack of REFILE the complaint,
jurisdiction, the same was denied under the a. These are orders of dismissal which
doctrine of estoppel and laches (Royales, et al., v. is not tantamount to an
IAC) adjudication on the merits
b. e.g when ground for dismissal is
anchored on improper venue.

RESOLUTION OF MOTION 2. He may APPEAL from the order of

dismissal where the ground relied upon
During the hearing of the motion: Parties shall is one which bars refilling of complaint
submit: a. The grounds which bar re-filing are:
1. Their arguments on questions of law (1) Res judicata
2. Their evidence on questions of fact (2) Prescription
(Rule 16, Sec. 2) (3) Extinguishment of the
a. Exception: Those not available at obligation
that time (4) Violation of Statutes of Fraud

Parties should be allowed to present 3. The plaintiff may also avail of a petition
evidence and the evidence should be taken for certiorari, alleging grave abuse of
down discretion. [Riano]

EXCEPT: when the motion is based on the

ground of insufficiency of cause of action REMEDIES OF THE DEFENDANT WHEN
which must generally be determined on the MOTION IS DENIED
basis of the facts alleged in the complaint
Appeal is NOT a remedy since denial of a motion
Trial: If the case goes to trial, such evidence to dismiss is an interlocutory order. As a general
presented shall automatically be part of the rule, defendant files his answer and then may
evidence of the party presenting the same. appeal an adverse judgment.

Lack of formal hearing of a motion to dismiss is Remedies of Defendant:

not fatal where the issues raised were fully
discussed in the motion and opposition.
(Castillo v. CA)
After hearing: Court may either:
1. Dismiss the action/claim
2. Deny the MTD
3. Order amendment of the pleadings
1. The movant shall file his answer within
the balance of the period described in
Rule 11 to which he was entitled at the
time of serving his motion, but not less
than 5 days in any event.
a. If pleading is ordered to be
amended, he shall file his answer
within the period prescribed by
Rule 11 counted from service of
60

amended pleading unless the court A preliminary hearing may be had

provides a longer period thereon, and in the event the
complaint is dismissed, defendant
2. Another remedy is to file a certiorari, can prosecute his counterclaim
case under Rule 65 alleging grave abuse (Herrera)
of discretion. [Riano]

DISTINGUISHED FROM DEMURRER TO

EFFECT OF DISMISSAL OF COMPLAINT ON EVIDENCE UNDER RULE 33
CERTAIN GROUNDS
A motion to dismiss under this Rule differs from
General rule: The action/claim may be re-filed. a motion to dismiss under Rule 33 on demurrer
to evidence:
Exception: The action cannot be re-filed
(although subject to appeal) if it was dismissed DEMURRER TO
on any of the following grounds: MOTION TO DISMISS
EVIDENCE
1. Res judicata; Grounded on
2. Prescription; Based on insufficiency
preliminary
3. Extinguishment of the claim/demand; of evidence
objections
4. Unenforceability under the Statute of May be filed by any
Frauds. [Rule 16, Sec. 1 (f),(h),(i)] May be filed only by
defending party
the defendant against
against whom a claim
the complaint of the
is asserted in the
WHEN GROUNDS PLEADED AS AFFIRMATIVE plaintiff
action
DEFENSES Should be filed within
May be filed for the
the time for but prior
If no motion to dismiss had been filed, any of the dismissal of the case
to the filing of the
grounds for dismissal may be pleaded as only after the plaintiff
answer of the
affirmative defenses and a preliminary hearing has completed the
defending party to
may be had at courts discretion. (Rule 16, Sec. presentation of his
the pleading asserting
6) evidence
the claim against him
If denied, defendant
NOTE: The dismissal of the complaint under this must file an answer, If denied, defendant
section shall be without prejudice to the or else he may be may present evidence
prosecution in the same or separate action of a declared in default
counterclaim pleaded in the answer. If granted, plaintiff
If granted, plaintiff
appeals and the order
If the defendant would not want to file a may appeal or if
of dismissal is
counterclaim, he should not file a motion to subsequent case is
reversed, defendant
dismiss not barred, he may
loses his right to
Instead, he should allege the re-file the case
present evidence
grounds of a motion to dismiss as
affirmative defenses in his answer
with a counterclaim
DISMISSAL OF ACTIONS The dismissal as a matter of right ceases when
an answer or a motion for summary judgment is
DISMISSAL UPON NOTICE BY PLAINTIFF; served on the plaintiff and not when the answer
TWO-DISMISSAL RULE (Rule 17, Sec. 1) or the motion is filed with the court.

Dismissal by plaintiff as a matter of right Dismissal NOT Automatic - It requires an order

Dismissal is effected not by motion but by mere
notice of dismissal which is a matter of right
before the service of:
1. The answer; or
2. A motion for summary judgment
by the court confirming the dismissal. Until
confirmed, the withdrawal does not take effect
Generally, Dismissal is Without Prejudice
General Rule: Dismissal is without prejudice
Exceptions:
1. Where the notice of dismissal so
provides; or
61

2. Where the plaintiff has previously 1. Prosecute his counterclaim in a

dismissed the same case in a court of
competent jurisdiction (Two Dismissal
Rule)
3. Even where the notice of dismissal does
not provide that it is with prejudice but
it is premised on the fact of payment by
the defendant of the claim involved
(Serrano v. Cabrera)
Two Dismissal Rule - when the same complaint
had twice been dismissed by the plaintiff
without order of the court by simply filing a
notice of dismissal, the 2nd dismissal operates as
an adjudication on the merits.
DISMISSAL UPON MOTION BY PLAINTIFF;
EFFECT ON EXISTING COUNTERCLAIM (Rule
17, Sec. 2)
Under this section, dismissal of the complaint is
subject to the discretion of the court and upon
such terms and conditions as may be just.
separate action;
a. In this case, the court should render
the corresponding order granting
and reserving his right to prosecute
his claim in a separate complaint
2. OR to have the same resolved in the
same action
a. In this case, defendant must
manifest such preference to the
trial court within 15 days from
notice to him of plaintiffs motion to
dismiss
NOTE: These alternative remedies of
the defendant are available to him
regardless of whether his counterclaim
is compulsory or permissive
DISMISSAL DUE TO FAULT OF PLAINTIFF
(Rule 17, Sec. 3)
Distinction between Sec. 2 and Sec. 3 of Rule 17

Generally, Dismissal is Without Prejudice SECTION 2 SECTION 3

General Rule: Dismissal is without prejudice Dismissal is not
Exceptions: Dismissal is at the procured by plaintiff
1. When otherwise stated in the motion to instance of the though justified by
dismiss; or plaintiff causes imputable to
2. When stated to be with prejudice in the him
order of the court Dismissal is a matter
of procedure, without Dismissal is a matter
Effect on Counterclaim: prejudice unless of evidence, an
otherwise stated in adjudication on the
If counterclaim has been pleaded by defendant the court order or on merits
prior to service upon him of plaintiffs motion motion to dismiss
for dismissal, dismissal shall be limited to the Dismissal is without
complaint prejudice to the right
- Remember that if the civil case is of defendant to
dismissed, so also is the counterclaim prosecute his Dismissal is without
filed therein counterclaim in a prejudice to the right
It was held that if the court does not separation action of defendant to
have jurisdiction to entertain the unless within 15 days prosecute his
main action of the case and dismiss from notice of motion counterclaim on the
the case, then the compulsory he manifests his same or separate
counterclaim, being ancillary to the intention to have his action
principal controversy must likewise counterclaim
be dismissed (Metals Engineering resolved in the same
Resources v. CA) action
- However, under this section, if a
counterclaim has been pleaded by a Dismissal under this Section
defendant PRIOR to the service upon
him of the plaintiffs motion for The case may be dismissed motu proprio or
dismissal, the dismissal shall be limited upon the defendants motion if, without
to the complaint. justifiable cause, plaintiff fails either:
1. To appear on the date of the
Such dismissal shall be without prejudice to the presentation of his evidence-in-chief on
right of the defendant to either: the complaint;
62
a. The plaintiffs failure to appear at
the trial after he has presented his
evidence and rested his case does
not warrant the dismissal of the
case on the ground of failure to
prosecute.
b. It is merely a waiver of his right to
cross-examine and to object to the
admissibility of evidence. [Jalover v.
Ytoriaga (1977)]
c. Since plaintiffs presence is now
required only during the
presentation of his evidence in
chief, his absence during the
presentation of defendant or other
parties evidence, or even at
rebuttal or subsequent stages, is
not a ground for dismissal.
2. To prosecute his action for an
unreasonable length of time (nolle
prosequi);
a. The test for dismissal of a case due
to failure to prosecute is WON,
under the circumstances, the
plaintiff is chargeable with want of
due diligence in failing to proceed
with reasonable promptitude.
[Calalang v. CA (1993)]
b. The dismissal of an action pursuant
to this rule rests upon the sound
discretion of the court ( Smith Bell
and Co. v. American President Lines
Ltd.)
c. The action should never be
dismissed on a non-suit for want of
prosecution when the delay was
caused by the parties looking
towards a settlement. (Goldloop
Properties Inc. v. CA)
3. To comply with the Rules or any court
order.
a. The order must be valid
b. Failure to comply with order:
(1) Dismissal for failure to comply
with order to amend complaint
to make claims asserted more
definite is ground for dismissal
(Santos v. General Wood Craft)
(2) Failure to comply with an order
to include indispensable parties
is ground for dismissal
(Aranico-Rubino v. Aquino)
(3) The failure to comply with
order of new judge to recall
witness so he may observe
demeanor is sufficient ground
for dismissal (Castillo v.
Torres)
c. Failure to comply with rules
(1) The failure of the parties to
submit a compromise
agreement within period
granted to them by court is not
a ground for dismissal
(Goldloop Properties Inc. v. CA)
(2) Dismissal is improper where a
3rd party complaint has been
admitted and the 3rd party
defendant had not yet been
summoned (Sotto v.
Valenzuela)
(3) A case may be dismissed for
failure to answer written
interrogatories under Rule 25
even without an order from the
court to answer. (Arellano v.
CFI- Sorsogon)
Effect of Dismissal:
General Rule: Dismissal of actions under Sec. 3
which do not expressly state whether they are
with or without prejudice are held to be with
prejudice on the merits
Exceptions:
1. The court declares otherwise, without
prejudice to the right of the defendant
to prosecute his counter-claim in the
same or separate action
2. If court has not yet acquired jurisdiction
over the person of the defendant
Effect on Counterclaim:
Defendant is granted the choice to prosecute
that counterclaim in either the same or a
separate action, just like the grant of that
remedy in Sec. 6, Rule 16
In this section (as well as in Sec. 6, Rule 16),
defendant is not required to manifest his
preference within a 15-day period as in Sec. 2
- The motions to dismiss in this section
and in Sec. 6, Rule 16, are filed by
defendant who perforce has already
deliberated upon the course of action he
intends to take on his counterclaim and
which he may even manifest right in his
motion to dismiss
- The dismissal in Sec. 2 is at the instance
of plaintiff, hence, defendant is granted
the time and duty to manifest
preference within 15 days from notice,
after an opportunity to study the
situation
63
DISMISSAL OF COUNTERCLAIM, CROSS-
CLAIM, OR THIRD-PARTY COMPLAINT
Provisions of Rule 17 shall apply to the dismissal
of any counterclaim, cross-claim, or third-party
complaint
Voluntary dismissal by claimant by notice as in
Sec. 1, shall be made:
1. Before a responsive pleading or motion
for summary judgment is served; or
2. If there is none, before introduction of
evidence at trial or hearing
Effect of Dismissals
1. Dismissal or continuance of an action
operates to annul orders, ruling, or
judgments previously made in the case
PRE-TRIAL
CONCEPT OF PRE-TRIAL
Pre-Trial is a mandatory conference and
personal confrontation before the judge
between the parties and their respective
counsel, called by the court after the joinder of
issues in a case or after the last pleading has
been filed and before trial, for the purpose of
settling the litigation expeditiously or
simplifying the issues without sacrificing the
necessary demands of justice.
It is a procedural device by which the court is
called upon, after the filing of the last pleading,
to compel the parties and their lawyers to
appear before it, and negotiate an amicable
settlement or otherwise make a formal
settlement and embody in a single document the
issues of fact and law involved in the action, and
such other matters as may aid in the prompt
disposition in the case, such as:
1. Number of witnesses
2. Tenor or character of their testimonies
3. Documentary evidence; nature and
purpose of each
4. Number of trial dates
NATURE AND PURPOSE
Purpose of pre-trial is to consider: (Rule 18, Sec.
2)
1. Possibility of an amicable settlement or
of a submission to alternative modes of
dispute resolution;
2. Simplification of the issues;
2. It also annuls all proceedings had in
connection therewith and renders all
pleadings ineffective
3. Dismissal or non-suit leaves the
situation as though no suit had ever
been brought
Where a counterclaim is made the subject of a
separate suit, it may be abated upon a plea of
auter action pendentia and/or dismissal on the
ground of res judicata. Res judicata, however, is
not applicable since the court held that it did not
acquire jurisdiction due to non-payment of
docket fees.
Dismissal on the ground of LOJ does not
constitute res judicata, there being no
consideration and adjudication of the case on
the merits. Neither is there litis pendentia.
[Meliton v. CA (1992)]
3. Necessity/desirability of amendments
to the pleadings;
4. Possibility of obtaining stipulations or
admissions of facts and of documents to
avoid unnecessary proof;
5. Limitation of the number of witnesses;
6. Advisability of a preliminary reference
of issues to a commissioner;
7. Propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid
ground therefor be found to exist;
8. Advisability/necessity of suspending
the proceedings; and
9. Other matters that may aid in the
prompt disposition of the action.
Pre-trial is Mandatory
- Vital objective: the simplification,
abbreviation, and expedition of the trial,
if not indeed its dispensation
- Mandatory nature is addressed to both
court and parties:
Court must set the case for pre-trial
and notify the parties as well as
counsel to appear
Parties with their counsel are
obliged to obey the order of the
court to that effect
Primary Objective
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
(PTC) all issues of law and fact which they
64

intend to raise at the trial, except such as may a. To enter into an amicable
involve privileged or impeaching matters. The settlement;
determination of issues at a pre-trial conference b. To submit to alternative modes of
bars the consideration of other questions on dispute resolution;
appeal. [Caltex v. CA (1992)] c. To enter into
stipulations/admissions of facts
and of documents.

NOTICE OF PRE-TRIAL NOTE: The written special

authority must be in the form of an
When pre-trial conducted - After the last SPA (Sec. 23, Rule 38). If the party
pleading has been served and filed, it shall be is a corporation, the SPA must be
the duty of the plaintiff to promptly supported by a board resolution.
move ex parte that the case be set for pre-trial.
(Sec. 1, Rule 18) Effect of Failure to Appear; unexcused non-
1. Specifically, the motion is to be filed appearance: (Rule 18, Sec. 5)
within 5 days after the last pleading
joining the issues has been served and Order of Non-suit is issued to the party who
filed (Admin Circ. No. 3-99, Jan 15, failed to appear at pre-trial.
1999)
2. Within 5 days from date of filing of the Who fails to
Effect
reply, plaintiff must promptly move ex- appear
parte that the case be set for pre-trial Cause for dismissal of the action
conference. If the plaintiff fails to file which will be with prejudice,
said motion within the given period, the Plaintiff
unless otherwise ordered by the
branch clerk shall issue a Notice of Pre- court
Trial (AM No. 03-109-SC, July 13, 2004) Cause to allow plaintiff to present
evidence ex parte, and court to
NOTE: Note: The Last Pleading need not be Defendant
render judgment on the basis
literally construed as the actual filing of the last thereof
pleading. For purpose of pre-trial, the expiration
of the period for filing the last pleading is NOTE: The non-appearance of defendant in pre-
sufficient (Sarmiento v. Juan) trial is not a ground to declare him in default.
Thus, we distinguish:
Notice of Pre-trial: The notice shall be served on:
1. Counsel
2. Party, only if he has no counsel (Sec. 3, Failure to appear by
Rule 18) Default by defendant
defendant (Rule 18,
(Rule 9, Sec. 3)
Sec. 5)
The sufficiency of the written notice of pre-trial
is irrelevant where evidence shows that counsel Upon motion and
Not required
and the parties actually knew of the pre-trial notice to defendant.
(Bembo v. CA) Requires proof of
Not required
failure to answer
Court to render Court to allow plaintiff
APPEARANCE OF PARTIES; EFFECT OF judgment, unless it to present evidence ex
FAILURE TO APPEAR requires submission of parte, then the court
evidence shall render judgment
Duty to Appear: It is the duty of the parties and Judgment by Default Judgment Ex Parte
their counsel to appear at the pre-trial. (Rule 18, Relief awarded must be Relief awarded may
Sec. 4) the same in nature and be of different nature
- NOTE: BOTH parties AND their counsel amount as prayed for and amount from the
in the complaint relief prayed for
When non-appearance is excused: A partys non-
appearance may be excused only if either: When we say that a defendant is in default it
1. Valid cause is shown for it; speaks of his failure to file responsive pleading
2. A representative appears in his behalf, and not his non-appearance at pre-trial.
fully authorized in writing:
Remedy of Party who has been non-suited:
65
1. For a non-suited plaintiff:
a. Motion to set aside the order of
non-suit
b. Affidavit of merit is not necessary in
a simple motion for reconsideration
of the order of non-suit EXCEPT as
to show the cause of the failure to
appear at the pre-trial (Jonathan
Landoil International Inc. v.
Mangudadatu)
2. For a non-suited defendant:
a. File a motion for reconsideration
without need for affidavits of merits
regarding the fraud, accident,
mistake, or excusable negligence
(Lucero v. Dacayo)
PRE-TRIAL BRIEF; EFFECT OF FAILURE TO
FILE
Rule 18, Sec. 6 makes it the MANDATORY duty
of the parties to seasonably file their pre-trial
briefs under the conditions and with the
sanctions provided therein.
When to File Pre-Trial Brief: Parties shall file and
serve their respective pre-trial briefs, ensuring
receipt by adverse party at least 3 days before
the date of the pre-trial.
Contents of a Pre-Trial Brief
1. Statement of their willingness to enter
into amicable settlement or alternative
modes of dispute resolution, indicating
the desired terms thereof;
2. Summary of admitted facts and
proposed stipulation of facts;
3. Issues to be tried/resolved;
4. Documents/exhibits to be presented,
stating the purpose thereof;
5. Manifestation of their having availed or
their intention to avail themselves of
discovery procedures or referral to
commissioners;
6. Number and names of the witnesses,
and the substance of their respective
testimonies. [AM No. 03-1-09-SC]
Failure to File Pre-trial Brief: Failure to file the
pre-trial brief shall have the same effect as
failure to appear at the pre-trial.
Remedy of defendant is to file a motion for
reconsideration, showing that his failure to file a
trial brief was due to fraud, accident, mistake, or
excusable negligence
PROCEEDINGS AFTER TERMINATION OF PRE-
TRIAL
Record of Pre-Trial: The pre-trial proceedings
shall be recorded. Upon termination of such
proceedings, the court shall issue the pre-trial
order.
Contents of Pre-Trial Order:
1. Matters taken up in the conference;
2. Action taken thereon;
3. Amendments allowed on the pleadings;
4. Agreements/admissions made by the
parties as to any matters considered;
5. Should the action proceed to trial, the
explicit definition and limit of the issues
to be tried.
Effect of Pre-Trial Order: The contents of the
order shall control the subsequent course of the
action; UNLESS:
1. Modified before trial to prevent
manifest injustice (Rule 18, Sec. 7)
2. Issues impliedly included therein or
may be inferable therefrom by
necessary implication (Velasco v.
Apostol)
3. Amendment to conform to evidence
(Rule 10, Sec. 5)
On Compromise:
- Upon manifestation of the parties of
their willingness to discuss a
compromise, the TC should order the
suspension of the proceedings to allow
them reasonable time to discuss and
conclude an amicable settlement.
- If despite all efforts exerted by the TC
and the parties the settlement
conference still fails, then the action
should have continued as if no
suspension had taken place. [Goldloop
Properties v. CA (1992)]
- NOTE: AM 03-1-09-SC - No termination
of pre-trial for failure to settle
DISTINCTION BETWEEN PRE-TRIAL IN CIVIL
CASE AND PRE-TRIAL IN CRIMINAL CASE
Civil Case Criminal Case
Set when the plaintiff Ordered by the court
66

moves ex parte to set and no motion to set ALTERNATIVE DISPUTE RESOLUTION (ADR)
the case for pre-trial the case for pre-trial is Special Rules of Court on ADR (AM No. 07-11-
[Rule 18, Sec. 1] required from either 08-SC)
the prosecution or the
defense [Rule 118, Sec. The parties may be submitted to ADR during
1] pre-trial. If ADR fails, judge will schedule the
Made after the Ordered by the court continuance of the pre-trial conference
pleading has been after arraignment and
served and filed [Rule within 30 days from The Alternative Dispute Resolution System
18, Sec. 1] the sate the court Means any process or procedure used to resolve
acquired jurisdiction a dispute or controversy, other than by
over the person of the adjudication of a presiding judge of a court or an
accused [Rule 118, officer of a government agency, as defined in
Sec. 1] this Act, in which a neutral third party
Considered the Does not include the participates to assist in the resolution of issue
possibility of an considering of the [RA 9285, Sec. 3]
amicable settlement as possibility of amicable
an important objective settlement of ones Policy Behind the ADR: To actively promote
[Rule 118, Sec. 2(a)] criminal liability as party autonomy in the resolution of disputes or
one of its purposes the freedom of the party to make their own
[Rule 118, Sec. 1] arrangements to resolve their disputes [RA
The arrangements and (Stricter procedure) 9285, Sec. 2]
admissions in the pre- All agreements or
trial are not required admissions made or In Relation to Pre-Trial:
to be signed by both entered during the 1. At the start of the pre-trial conference,
parties and their pre-trial conference the judge shall immediately refer the
counsels. Under the shall be reduced in parties and/or their counsel if
Rules, they are instead writing and signed by authorized by their clients to the PMC
to be contained in the both the accused and mediation unit for purposes of
record of pre-trial and counsel; otherwise, mediation if available.[AM No. 03-1-09-
pre-trial order [Rule they cannot be used SC]
18, Sec. 7] against the accused.
[Rule 118, Sec. 2] 2. The pre-trial briefs of parties must
[AM No. 03-1-09] - include the parties statement of their
requires the willingness to enter into an amicable
proceedings during settlement indicating the desired terms
the preliminary thereof or to submit the case to any of
conference to be the alternative modes of dispute
recorded in the resolution [AM No. 03-1-09-SC]
Minutes of
Preliminary Exception to the Application of RA 9285:
Conference to be 1. labor disputes covered by the Labor
signed by both parties Code;
and/or counsel. 2. the civil status of persons;
(Note: either party or 3. validity of a marriage;
his counsel is allowed 4. any ground for legal separation;
to sign) 5. the jurisdiction of courts;
The sanctions for non- Sanctions are imposed 6. future legitime;
appearance are upon the counsel for 7. criminal liability; and
imposed upon the the accused or the 8. those which by law cannot be
plaintiff and the prosecutor [Rule 118, compromised.
defendant [Rule 18, Sec. 3]
Sec. 4] Modes of Alternative Dispute Resolutions:
A pre-trial brief is A pre-trial brief is not
specifically required to specifically required. 1. Arbitration (RA 9285, Sec. 1)
be submitted [Rule 18, a. A voluntary dispute resolution
Sec. 6] process in which one or more
arbitrators, appointed in
accordance with the agreement of
67
the parties, or rules promulgated
pursuant to this Act, resolve a
dispute by rendering an award\
b. Different Kinds:
(1) Domestic Arbitration an
arbritration that is not
international; governed by RA
876 (Arbitration Law) [RA
9285, Sec. 32]
(2) International Arbitration - An
arbitration is international if:
(a) the parties to an
arbitration agreement
have, at the time of the
conclusion of that
agreement, their places of
business in different States;
or
(b) one of the following places
is situated outside the State
in which the parties have
their places of business
[Article 3, Model Law on
International Commercial
Arbritration]
2. Mediation
a. a voluntary process in which a
mediator, selected by the disputing
parties, facilitates communication
and negotiation, and assist the
parties in reaching a voluntary
agreement regarding a dispute
b. includes conciliation
3. Mini-Trial
a. A structured dispute resolution
method in which the merits of a
case are argued before a panel
comprising senior decision makers
with or without the presence of a
neutral third person after which the
parties seek a negotiated
settlement
4. Early Neutral Evaluation
a. An ADR process wherein parties
and their lawyers are brought
together early in a pre-trial phase
to present summaries of their cases
and receive a nonbinding
assessment by an experienced,
neutral person, with expertise in
the subject in the substance of the
dispute
5. Combination of ADR
a. Example: Med-Arb - step dispute
resolution process involving both
mediation and arbitration
Special Rules of Court on ADR (AM No. 07-11-08-
SC)
The Special ADR Rules shall apply to and govern
the following cases (Rule 1.1)
1. Relief on the issue of Existence, Validity,
or Enforceability of the Arbitration
Agreement;
2. Referral ADR
3. Interim Measures of Protection;
4. Appointment of Arbitrator;
5. Challenge to Appointment of Arbitrator;
6. Termination of Mandate of Arbitrator;
7. Assistance in Taking Evidence;
8. Confirmation, Correction or Vacation of
Award in Domestic Arbitration;
9. Recognition and Enforcement or Setting
Aside of an Award in International
Commercial Arbitration;
10. Recognition and Enforcement of a
Foreign Arbitral Award;
11. Confidentiality/Protective Orders; and
12. Deposit and Enforcement of Mediated
Settlement Agreements.
Service and Filing of Petition The petitioner
shall serve, either by personal service or courier,
a copy of the petition upon the respondent
before the filing thereof. Proof of service shall be
attached to the petition filed in court.
Notice served once court finds petition
sufficient in form and substance
1. Notice is sent to parties directing them
to appear at a particular time and date
for hearing
2. Hearing shall not be set no later than 5
days from lapse of period for filing
opposition or comment
3. Notice to respondent shall contain a
statement allowing him to file a
comment or opposition to petition
within 15 days from receipt of notice
4. For Referral to ADR or
Confidentiality/Protection Orders:
a. Follow Rule 15 Rules of Court
Summary Hearing - In all cases, as far as
practicable, the summary hearing shall be
conducted in one (1) day and only for purposes
of clarifying facts.
Prohibited Submissions (Rule 1.6)
1. Motion to dismiss;
2. Motion for bill of particulars;
68

3. Motion for new trial or for reopening of

trial; No summons (Rule 1.9 - In cases covered by the
4. Petition for relief from judgment; Special ADR Rules, a court acquires authority to
5. Motion for extension, except in cases act on the petition or motion upon proof of
where an ex-parte temporary order of jurisdictional facts, i.e., that the respondent was
protection has been issued; furnished a copy of the petition and the notice of
6. Rejoinder to reply; hearing.
7. Motion to declare a party in default; and
8. Any other pleading specifically
disallowed under any provision of the
Special ADR Rules.

PRE TRIAL

NO SETTLEMENT FAILURE TO APPEAR AMICABLE

SETTLEMENT

Agreements made by If plaintiff is absent If defendant is

parties; Amendments when so required to absent, court may
to pleading; Schedule attend, court may hear evidence of
of Trial dismiss the case plaintiff ex parte

If evidence is
TRIAL insufficient to prove
INTERVENTION plaintiffs cause of
REQUISITES FOR INTERVENTION
action or defendants
DEFINITION counterclaim, court
The requisites of intervention
rules in favorare:
of
A legal remedy whereby a person is permitted to 1. Legal interest:either one or
become a party in a case, by either: a. In thedismisses
matter in thecontroversy;
case or
1. Joining the plaintiff; b. In the success of either of COURT
the RENDERS
2. Joining the defendant; parties; or DECISION
3. Asserting his right against both c. Against both; or
plaintiff and defendant, considering d. So situated as to be adversely
that either: affected by a distribution or other
a. He has a legal interest in the disposition of property in the
subject matter of the action; custody of the court or of an office
b. He has legal interest in the success thereof;
of either of the parties 2. Intervention will not unduly delay or
c. He has legal interest against both prejudice the adjudication of rights of
of the parties original parties
d. He is going to be adversely affected 3. Intervenors rights may not be fully
by the disposition of the property protected in a separate proceeding
in the custody of the court (Rule (Lorenza Ortega v. CA, 1998)
19, Sec. 1)

Intervention is never an independent action, but MEANING OF LEGAL INTEREST

is ancillary and supplemental to the existing
litigation. Its purpose is to afford one not an
original party, yet having a certain right/interest
in the pending case, the opportunity to appear
and be joined so he could assert or protect such
right/interest. (Carino v. Ofilada, 1993)
Interest must be of a direct and immediate
character so that the intervenor will either gain
or lose by the direct legal operation of the
judgment. The interest must be actual and
material, a concern which is more than mere
curiosity, or academic or sentimental desire; it
69

must not be indirect and contingent, indirect

and remote, conjectural, consequential or
collateral. [Virra Mall Tenants v. Virra Mall
(2011)]
Notwithstanding the presence of a legal interest,
permission to intervene is subject to the sound
discretion of the court, the exercise of which is
limited by considering "whether or not the
intervention will unduly delay or prejudice the
adjudication of the rights of the original parties
and whether or not the intervenors rights may
be fully protected in a separate proceeding.
[Virra Mall Tenants v. Virra Mall (2011)]
Pleadings-in-Intervention:
1. Complaint-in-intervention If
intervenor asserts a claim against either
or all of the original parties.
2. Answer-in-intervention If intervenor
unites with the defending party in
resisting a claim against the latter.
3. Answer to complaint-in-intervention
[Rule 19, Sec. 4] - It must be filed within
15 days from notice of the order
admitting the complaint-in-
intervention, unless a different period is
fixed by the court.

TIME TO INTERVENE REMEDY FOR DENIAL OF MOTION TO

INTERVENE
How Intervention is Done
1. By a motion to intervene 1. If intervention is denied
2. Attaching the pleading-in-intervention a. Aggrieved party may appeal
to the motion b. Mandamus will not lie except in
3. Copies served on the original parties case of grave abuse of discretion
(Rule 19, Sec. 2)
2. If intervention is granted
When should it be filed The motion to intervene a. A grant of a motion to intervene is
may be filed at ANY TIME before rendition of interlocutory
judgment by the court b. Hence, anyone who objects can file
a petition for certiorari for
General Rule: Allowance of intervention is improper granting of intervention
discretionary with the court

Exception: When the intervenor is an

indispensable party
SUBPOENA attendance fee and other fees
reasonable cost of
DEFINITION production fee

Subpoena is a process directed to a person Who May Issue: (Rule 21, Sec. 2)
requiring him: 1. Court before whom the witness is
1. To attend and to testify at the hearing required to attend
or the trial of an action, or at any 2. Court of the place where the deposition
investigation conducted by competent is to be taken
authority, or for the taking of his 3. Officer or body authorized by law to do
deposition; or so in connection with investigations
2. To bring with him any books, conducted by said officer or body; or
documents, or other things under his 4. Any justice of the SC or of the CA, in any
control (Rule 21, Sec. 1) case or investigation pending within the
Philippines
SUBPOENA SUMMONS
An order to appear NOTE: Sec. 38(2), BP 129 All processes issued
and testify or to An order to answer by the MTC and MCTC in cases falling within
produce books and complaint their jurisdiction may be served anywhere in the
documents Philippines without the necessity of certification
May be served to a Served on the by the judge of the RTC
non-party defendant
Needs tender of Does not need tender Form and Contents: (Rule 21, Sec. 3)
kilometrage, of kilometrage and
70
1. Shall state the name of the court and the
title of the action or investigation
2. Shall be directed to the person whose
attendance is required
3. In case of a subpoena duces tecum, shall
contain a reasonable description of the
books, documents, or things demanded
which must appear to the court to be
prima facie relevant
Kinds:
1. Subpoena duces tecum (SDT)
2. Subpoena ad testificandum (SAT)
SUBPOENA AD TESTIFICANDUM
A process directed to a person requiring him to
attend and to testify at the hearing or the trial of
an action, or at any investigation conducted by
competent authority or for the taking of his
deposition
SUBPOENA DUCES TECUM
A process directed to a person requiring him to
bring with him books, documents, or other
things under his control
The SDT is, in all respects, like the ordinary SAT
with the exception that it concludes with an
injunction that the witness shall bring with him
and produce at the examination the books,
documents, or things described in the subpoena
Before SDT may issue, the court must first be
satisfied that the following requisites are
present:
1. Test of RELEVANCY: The books,
documents, or other things requested
must appear prima facie relevant to the
issue subject of the controversy
2. Test of DEFINITENESS: Such books
must be reasonably described by the
parties to be readily identified (test of
definiteness)
SERVICE OF SUBPOENA (Rule 21, Sec. 6)
How Made: Same manner as PERSONAL or
SUBSTITUTED service of summons
Formalities:
1. The original shall be exhibited
2. A copy is delivered to the person on
whom it is served
3. Fees and costs:
a. Tender to the person on whom it is
served the fees for one days
attendance and the kilometrage
allowed by the Rules
(1) EXCEPT: Tender need not be
made if issued by or on behalf
of the Republic or an officer of
agency thereof
b. If SDT, reasonable cost of producing
the books, documents, or things
demanded shall also be tendered
Service must be made so as to allow the witness
reasonable time for preparation and travel to
the place of attendance
COMPELLING ATTENDANCE OF WITNESSES;
CONTEMPT
General Rule:
1. The court which issued the subpoena
may issue a warrant for the arrest of the
witness and make him pay the cost of
such warrant and seizure, if the court
should determine that his disobedience
was willful and without just cause (Sec.
8)
2. The refusal to obey a subpoena without
adequate cause shall be deemed
contempt of the court issuing it (Sec. 9)
Exception: Provisions regarding the compelling
of attendance (Sec. 8) and contempt (Sec. 9) do
not apply where:
1. Witness resides more than 100km from
his residence to the place where he is to
testify by the ordinary course of travel
(Viatory Right) and
a. NOTE: This refers to civil cases
only, not criminal
2. Permission of the court in which the
detention prisoners case is pending
was not obtained
QUASHING OF SUBPOENA (Rule 21, Sec. 4)
How Done: By motion promptly made
Period to File: A motion to quash may be made at
or before the time specified in the subpoena
Grounds:
71
1. For quashal of subpoena duces tecum:
a. It is unreasonable and oppressive
b. The articles sought to be produced
do not appear prima facie to be
relevant to the issues; or
c. The person asking for the subpoena
does not advance the cost for the
production of the articles desired
d. Failure to tender witness fees and
kilometrage allowed by the Rules
MODES OF DISCOVERY
DISCOVERY a device employed by a party to
obtain information about relevant matters on
the case from the adverse party in the
preparation for trial
Purpose to enable the parties to obtain the
fullest possible knowledge of the issues and
evidence long before the trial to prevent such
trial from being carried on in the dark
Modes:
1. Depositions pending actions Rule 23
2. Depositions before action or pending
appeal Rule 24
3. Interrogatories to parties Rule 25
4. Admission by adverse party Rule 26
5. Production or inspection of documents
or thing Rule 27
6. Physical and mental examination of
persons Rule 28
DEPOSITIONS PENDING ACTION (Rule 23)
Meaning of Deposition - Deposition is chiefly a
mode of discovery, the primary function of
which is to supplement the pleadings for the
purpose of disclosing the real points of dispute
between the parties and affording an adequate
factual basis during the preparation for trial.
General Uses of Deposition:
1. Intended as a means to compel
disclosure of facts resting in the
knowledge of a party or other person,
which are relevant in a suit or
proceeding
2. Dual functions:
a. A method of discovery
b. A method of presenting testimony
in lieu of oral open court testimony
Scope of Examination
1. Matter which is relevant to the subject
of the pending action made by the
2. For quashal of subpoena ad
testificandum
a. That the witness is not bound
thereby, or
b. That the witness fees and
kilometrage allowed by the Rules
were not tendered when subpoena
was served
pleadings or likely to arise under the
pleadings
2. Matter that is not privileged
3. As well as:
a. The existence, description, nature,
custody, condition and location of
any books, documents, or other
tangible things; and
b. The identity and location of persons
having knowledge of relevant facts
(Rule 23, Sec. 2)
NOTE: Under such limitations as the
court may order under Sec. 16 and 18
When Depositions Pending Action Taken: (Rule
23, Sec. 1)
1. With leave of court:
a. AFTER jurisdiction has been
obtained over any defendant or
over the property which is the
subject of the action, but
b. BEFORE an answer has been served
2. Without leave of court
a. AFTER answer has been served
Depositions before an answer should be
granted only under special circumstances
where the conditions point to the necessity
of presenting a strong case for allowance of
the motion.
There must be some necessity or good
reason for taking the testimony
immediately or that it would be prejudicial
to the party seeking the order to be
compelled to await joinder of issues.
Specific Uses of Depositions Pending Action: the
use of depositions depends on whether
deponent is a party or not (Rule 23, Sec. 4)
1. The depositions may be used for
contradicting or impeaching the
testimony of deponent not as proof of
specific facts
72
a. If deponent does not testify and is
not a party, deposition cannot be
used for this purpose
2. Deposition of an ADVERSE party may be
used for any purpose
a. It may be used as an admission
b. A deposition cannot, however, be
used in the trial of a case against a
defendant who was not a party to
the action when the deposition was
taken
3. Deposition of a witness or party may be
used for any purpose under the
following circumstances:
a. Witness is dead there must be
proof of death or presumption of
death and that deposition was
legally taken
b. Non-residence of deponent where
it appears that the absence of
deponent was procured by the
party offering the deposition of the
same cannot be received in
evidence
c. Disability of a witness age,
sickness, infirmity, or
imprisonment. The certificate of the
attending physician that the
witness is in a precarious condition
is sufficient
d. Inability to procure attendance of
witness by subpoena
DEPONENT USE
By any party for
contradicting or
Any person impeaching the
testimony of deponent
as witness
A party or anyone
who at the time of the
deposition was an
officer, director, or
managing agent, of a By an adverse party
public or private for any purpose
corporation or
partnership, or
association which is a
party
By any party for any
Witness, whether or purpose if the court
not a party finds the 5 instances
occurring
NOTE: Depositions can be used as evidence by a
party (for any purpose) under the specific
conditions in Sec. 4
REMEMBER: Generally, a deposition is not
generally supposed to be a substitute for the
actual testimony in open court of a party or
witness. If the witness is available to testify, he
should be presented in court to testify. If
available to testify, a partys or witness
deposition is inadmissible in evidence for being
hearsay. (Dasmarinas Garments Inc. v. Reyes,
1993). Exceptions to this rule are those found in
Sec. 4.
Persons before whom depositions may be taken
(Rule 23, Sec. 10 and 11)
1. Within the Philippines:
a. Judge
b. Notary Public, or
c. Any person authorized to
administer oaths, as stipulated by
the parties in writing
2. Outside the Philippines
a. On notice before a secretary of
embassy or legation, consul general,
consul, vice-consul, or consular
agent of the Philippines
b. Before such person or officer as
may be appointed by commission
or under letter rogatory or
c. Any person authorized to
administer oaths as stipulated by
parties in writing
Disqualification by interest: No deposition shall
be taken before a person who is: (Rule 23, Sec.
13)
1. A relative within the 6th degree of
affinity or consanguinity
2. An employee or counsel of any of the
parties
3. A relative within the same degree or
employee of such counsel
4. Financially interested in the action
Procedure in Taking Depositions:
1. A party desiring to take the deposition
of any person upon oral examination
shall give reasonable notice in writing
to every party to the action stating the
time and place for taking the deposition
and the name and address of each
person to be examined. [Rule 23, Sec.
15]
2. After the notice is served, the court may
make any order for the protection of the
73

parties and the deponent. [Rule 23, Sec. a. A motion or petition for
16] termination or limit examination is
filed by any party or of the
3. The attendance of the witnesses may be deponent
compelled by the use of subpoenas. b. Filed in the court where the action
[Rule 23, Sec. 1] is pending OR the RTC of the place
where deposition is being taken
4. The deponent may be examined or
cross examined following the 2. When done: At any time during the
procedures for witnesses in a trial. He taking of deposition
may be asked questions on direct, cross,
re-direct or re-cross. He has the same 3. Grounds: That the examination is being
rights as a witness and may be conducted:
impeached like a court witness because a. In bad faith, or
Sections 3 to 18 of Rule 132 apply to b. In such manner as unreasonably to
deponent. [Rule 23, Sec. 3] annoy, embarrass or oppress the
deponent or party
5. The officer before whom the deposition
is being taken has no authority to rule Effect of Errors and Irregularities in Depositions
on objections interposed during the (Rule 23, Sec. 29)
course of the deposition although any
objections shall be noted by him upon Error and
Effect
the deposition. Any evidence that is Irregularities
objected to shall still be taken but Waived
subject to the objection. [Rule 23, Sec. As to notice for
Unless written objection is
17] taking
promptly served upon party
depositions
giving notice
When may objections to admissibility be made Waived
(Rule 23, Sec. 6) - Objection may be made at the Objection to Unless made:
TRIAL or HEARING to receiving in evidence any taking 1. Before taking of
deposition or part thereof for any reason which deposition deposition begins or
would require the exclusion of the evidence if because of 2. As soon thereafter
the witness were then present and testifying disqualification as disqualification
of officer before becomes known or
Effect of Taking and Using Depositions: whom it is to be could be discovered
taken with reasonable
1. General Rule: A party shall not be diligence
deemed to make a person his own Not waived by failure to
witness for any purpose by taking his Objection to the
make them before or during
deposition because depositions are competency of
the taking of deposition
taken for discovery and not for use as a witness or
Unless the ground of the
evidence. (Rule 23, Sec. 7) competency or
objection is one which might
relevancy or
have been obviated or
2. Exception: If a party offers the materiality of
removed if presented at that
deposition in evidence, then he is testimony
time
deemed to have made the deponent his In the manner of taking, in
witness (Sec. 8) the form of questions or
answers, in the oath or
3. Exceptions to the Exception: affirmation, or in conduct of
a. The deposition is that of an Occurring at
parties and errors of any
opposing party, OR oral
kind which might be
b. The deposition is used to impeach examination
obviated or removed if
or contradict opponent. (Sec. 8) and other
promptly prosecuted are
particulars
waived
When may taking of deposition be terminated or Unless reasonable objection
its scope limited (Rule 23, Sec. 18) thereto is made at the time
of taking the deposition
1. How done: Waived
Objections to
the form of Unless served in writing
74
written upon the party propounding
interrogatories them within the time
under Sec. 25 allowed for serving
and 26 succeeding cross or other
interrogatories and within 3
days after service of last
interrogatories authorized
In the manner Waived
in which Unless motion to suppress
testimony is depositions or some part
transcribed or thereof is made with
in the reasonable promptness after
preparation such defect is ascertained, or
under Sec. 17, with due diligence might
19, 20, and 26 have been ascertained
Orders that may be issued by the court regarding
deposition taking
1. That the deposition shall not be taken;
2. That it may be taken at some designated
place other than that stated in the
notice;
3. That it may be taken only on written
interrogatories;
4. That certain matters shall not be
inquired into
5. That the scope of the examination shall
be held with no one present except the
parties to the action and their officers
or counsel;
6. That after being sealed, the deposition
shall be opened only by order of the
court;
7. That secret processes, developments, or
research need not be disclosed;
8. That the parties shall simultaneously
file specified documents or information
enclosed in sealed envelopes to be
opened as directed by the court;
DEPOSITIONS BEFORE ACTION OR PENDING
APPEAL (Rule 24)
A deposition before action and a deposition
pending appeal are referred to as perpetuation
of testimony (perpetuam rei memoriam)
because their objective is to perpetuate the
testimony of a witness for future use.
Purpose: To perpetuate the testimony of
witnesses for probable use in the event of
further proceedings in said court.
Who may avail: Any person:
1. Who wants to perpetuate his own
testimony; or
2. Who wants to perpetuate the testimony
of another person
Procedure for Deposition Pending Action:
1. File a verified petition in the court of
the place of the residence of any
expected adverse party
a. Petition shall be entitled in the
name of petitioner
b. It shall show:
(1) That the petitioner expects to
be a party to an action in a
court of the Philippines but is
presently unable to bring it or
cause it to be brought;
(2) The subject matter of the
expected action and his interest
therein;
(3) The facts which he desires to
establish by the proposed
testimony and his reasons for
desiring to perpetuate it;
(4) The names or a description of
the persons he expects will be
adverse parties and their
addresses so far as known; and
(5) 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 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.
2. Notice and service to each person
named in the petition as an expected
adverse party, together with a copy of
the petition, stating that the petitioner
75
will apply to the court, at a time and
place named therein, for the order
described in the petition.
3. At least twenty (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.
4. Order and Examination: If the court is
satisfied that the perpetuation of the
testimony may prevent a failure or
delay of justice, it shall make an order
designating or describing the persons
whose deposition may be taken and
specifying the subject matter of the
examination and whether the
depositions shall be taken upon oral
examination or written interrogatories.
Use of Deposition: If a deposition to perpetuate
testimony is taken under this Rule, or if,
although not so taken, it would be admissible in
evidence, it may be used in any action involving
the same subject matter subsequently brought
in accordance with the provisions of sections 4
and 5 of Rule 23. (Rule 24, Sec. 6)
Procedure for Deposition Pending Appeal:
1. During the pendency of an appeal, the
court in which the judgment was
rendered may allow the taking of
depositions of witnesses to perpetuate
their testimony in the event of further
proceedings in the said court.
2. The party who desires to perpetuate the
testimony may make a motion in the
said court for leave to take the
depositions, upon the same notice and
service thereof as if the action was
pending therein. The motion shall state:
a. The names and addresses of the
persons to be examined and the
substance of the testimony which
he expects to elicit from each, and
b. The reason for perpetuating their
testimony.
3. Order allowing the deposition: If the
court finds that the perpetuation of the
testimony is proper to avoid a failure or
delay of justice, it may make an order
allowing the deposition to be taken.
WRITTEN INTERROGATORIES TO ADVERSE
PARTIES (Rule 25)
Purpose - This mode of discovery is availed of by
the party to the action for the purpose of
eliciting material and relevant facts from any of
the adverse party. [Rule 25, Sec. 1]
Service of Interrogatories to Parties Any party
desiring to elicit material and relevant facts
from any adverse party shall file and serve upon
the adverse party written interrogatories to be
answered by the party served.
NOTE: Written interrogatories must not
only be served but also filed.
Manner of Service:
1. Without leave of court After
answer has been served; and for
the first set of interrogatories
2. With leave of court before the
answer has been served; and for
subsequent sets of interrogatories
NOTE: No party may, without leave
of court, serve more than one set of
interrogatories to be answered by
the same party. (Rule 25, Sec. 4)
Answer to Interrogatories: (Rule 25, Sec. 2)
1. Written interrogatories and the
answers thereto must both be filed and
served
a. Hence, the answers may constitute
as judicial admissions (Sec. 4, Rule
129)
2. Form of answer:
a. It must be answered fully in writing
b. And signed and sworn to by the
person making them
3. Service and Filing
a. Party upon whom interrogatories
were served shall file and serve a
copy of the answers on the party
submitting interrogatories
b. Time period:
(1) Within 15 days after service
thereof
(2) UNLESS court extends or
shortens the time on motion
and for good cause shown
Objections to Interrogatories: (Rule 25, Sec. 3)
76

Objections may be presented to the court within ask the deponent the
10 days after service thereof with notice as in questions and he will
case of a motion. record the answers.
The deposition of any
Effect: Answers shall be deferred until The deposition of
person may be taken,
objections are resolved the parties are
whether he is a party or
only taken.
not.
Grounds:
1. They require the statements of
conclusions of law or answers to
hypothetical questions or opinion, or
mere hearsay, or matters not within the
personal knowledge of the interrogated
party
2. Frivolous interrogatories need not be
answered (Herrera)

Scope and Use of Interrogatories (Rule 25, Sec. 5)

Interrogatories may relate to any matters than

can be inquired into under Sec. 2, Rule 23

Answers may be used for the same purposes

provided in Sec. 4, Rule 23

Effect of Failure to Serve Written Interrogatories

(Rule 25, Sec. 6)

A party not served with written interrogatories

may not be compelled by adverse party to:
1. Give testimony in open court; or
2. Give deposition pending appeal

UNLESS thereafter allowed by the court for good

cause shown and to prevent a failure of justice

NOTE: This should not be confused with

the provisions of Rule 29. Sec. 6 Rule 25
as well as a similar provision in Rule 26
are directed to a party who fails or
refuses to resort to discovery
procedures therein. Rule 29 provides
for sanctions or other consequences
upon a party who refuses or fails to
comply with discovery procedures duly
availed of by his opponent

Written Interrogatories v. Interrogatories to

Parties

Written Interrogatories Interrogatories to

Parties
The deposition is takes There is no
before a deposition officer deposition officer.
Questions are prepared
beforehand. These are The questioning is
submitted to the direct.
deposition officer who will
77
REQUEST FOR ADMISSION (Rule 26)
Rule 26, as a mode of discovery, contemplates
interrogatories seeking clarification in order to
determine the truth of the allegation in a
pleading.
Purposes:
1. To allow one party to request the
adverse in writing to admit certain
material and relevant matters which
most likely will not be disputed during
the trial.
2. To avoid unnecessary inconvenience to
the parties in going through the rigors
of proof, before the trial, a party may
request the other to:
a. Admit the genuineness of any
material and relevant document
described in and exhibited with the
request; or
b. Admit the truth of any material and
relevant matter of fact set forth in
the request [Rule 26, Sec. 1]
How made:
1. A party files and serves upon any other
party a written request
2. Copies of the documents shall be served
with the request unless already
furnished
When made: At any time after issues have been
joined.
The request for admission MUST BE SERVED ON
THE PARTY and NOT ON THE COUNSEL. This is
an exception to the general rule that notices
shall be served upon counsel and not upon the
party. (Duque v. CA, 2002)
Implied Admission by Adverse Party (Rule 26, Sec.
2)
Each of the matters which an admission is
requested shall be deemed admitted UNLESS the
party to whom request is directed files and
serves upon the party requesting admission a
SWORN STATEMENT
1. Contents of the sworn statement:
a. Denying specifically the matters of
which an admission is requested, or
b. Setting forth in detail the reasons
why he cannot truthfully either
admit or deny those matters
2. Period to file and serve the sworn
statement
a. Within a period designated in the
request
b. Which shall not be less than 15
days after service thereof, or
c. Within such further time as the
court may allow on motion
Objections to any request for admission
Objections shall be submitted to the court by the
party requested within the period for and prior
to filing of his sworn statement. Compliance
with the sworn statement shall be deferred until
objections are resolved.
Effect of Admission (Rule 26, Sec. 3)
1. Any admission made by a party
pursuant to such request is for the
purpose of the pending action only
2. It shall not:
a. Constitute an admission by him for
any other purpose; nor
b. Be used against him in any other
proceeding
Effect of Failure to File and Serve Request for
Admission (Rule 26, Sec. 5)
A party who fails to file and serve a request for
admission on the adverse party of material and
relevant fact at issue which are, or ought to be,
within the personal knowledge of the latter:
1. He shall not be permitted to present
evidence on such facts
2. UNLESS otherwise allowed by the court
for good cause and to prevent a failure
of justice
NOTE: This is similar to the provision
on unjustified failure of a party to avail
of written interrogatories under Sec. 6,
Rule 25.
78

PRODUCTION OR INSPECTION OF 1. The court may:

DOCUMENTS OR THINGS (Rule 27) a. Order any party to produce and
permit the inspection and copying
Rule 27 applies only to a PENDING ACTION and or photographing,
the documentary things subject of the motion (1) By or on behalf of the moving
must be only WITHIN the possession, control, or party
custody of a party (2) Of any designated documents,
papers, books, accounts, letters,
PRODUCTION OR photographs, objects or
INSPECTION OF tangible things, not privileged,
SUBPOENA DUCES TECUM
DOCUMENTS OR which constitute or contain
THINGS evidence material to any
Essentially a matter involved in the action
A means of compelling (3) And which are in his
mode of
production of evidence possession, custody or control
discovery
Rules is limited It may be directed to a
to the parties of person whether a party or b. Order any party to permit entry
the action not upon designated land or other
The order under property in his possession or
this Rule is control
issued only upon It may be issued upon an (1) For the purpose of inspecting,
motion with ex parte application measuring, surveying, or
notice to the photographing, property or any
adverse party designated relevant object or
May be asked operation thereon
May be asked only during
before and/or
trial 2. Contents of the Order
during trial
Necessary to Not necessary to show a. Time, place, and manner of making
show good cause good cause the inspection and taking copies
Grounds for quashal: and photographs, and
1. Unreasonable, b. Such terms and conditions as are
Ground for oppressive, just
quashal: No good irrelevant
cause shown 2. Failure to advance
reasonable costs
of production
Consequence of
Disobedience constitutes
disobedience, see
contempt of court
Rule 29, Sec. 3

Procedure:

1. A motion must be filed by the party

seeking the production or inspection of
documents and things and the motion
must show good cause supporting the
same. [Rule 27, Sec. 1]

2. The court in which the action is pending

shall issue an order:
a. which shall specify the time, place
and manner of making the
inspection and taking copies and
photographs, and
b. which may prescribe such terms
and conditions as are just. [Rule 27,
Sec. 1]

Court Order:
79

PHYSICAL AND MENTAL EXAMINATION OF copy of a detailed written report of

PERSONS (Rule 28)
When available: In an action in which the mental
or physical condition of a party is in
controversy. (Rule 28, Sec. 1)
- NOTE: It is the mental and physical
condition of a PARTY not a WITNESS
that is in controversy
How Done:
1. Motion for examination is filed
2. Filed in the court in which the action is
pending
3. Court may, in its discretion, order him
to submit to a physical or mental
examination by a physician
NOTE: Since the results of the examination are
intended to be made public, the same are not
covered by physician-patient privilege (Sec.
24(b), Rule 130)
the examining physician setting out
his findings and conclusions
2. After such request and delivery:
a. The party causing the examination
to be made shall be entitled upon
request to receive from the party
examined a like report of any
examination, previously or
thereafter made, of the same
mental or physical condition
3. If party examined refuses to deliver
such report:
a. The court on motion and notice
may make an order requiring
delivery on such terms as are just
b. And if a physician fails or refuses to
make such a report the court may
exclude his testimony if offered at
the trial

Requisites to Obtain an Order for Examination Waiver of privilege (Rule 28, Sec. 4)
1. A motion must be filed for the physical
and mental examination Where the party examined requests and obtains
2. The motion must show good cause for a report on the results of the examination, the
the examination consequences are:
3. Notice to the party to be examined and 1. He has to furnish the other party a copy
to all other parties; of the report of any previous or
4. The motion shall specify the time, place, subsequent examination of the same
manner, conditions, and scope of the physical and mental condition; AND
examination and the person or persons 2. He waives any privilege he may have in
by whom it is made (Rule 28, Sec. 2) that action or any other involving the
same controversy regarding the
Report of Findings (Rule 28, Sec. 3) testimony of any other person who has
so examined him or may thereafter
1.
If requested by the party examined: examine him
a. The party causing the examination
to be made shall deliver to him a
CONSEQUENCES OF REFUSAL TO COMPLY reasonable expenses
WITH MODES OF DISCOVERY (Rule 29) incurred in obtaining
the order
REFUSAL TO b. If denied, and filed
COMPLY WITH without substantial
SANCTIONS
MODES OF justification, court
DISCOVERY may require
1. The court may, upon proponent to pay
proper application, refusing party the
compel a refusing reasonable expenses
deponent to answer (Sec. incurred in obtaining
Refusal to 1) the order
answer any a. If granted, and 2. A refusal to answer after
question refusal to answer is being directed by court
(Sec. 1 and 2) without substantial to do so may be
justification, court constituted as contempt
may require the of court
refusing party to pay
proponent the Refusal to be Cite the disobedient
80

Sworn (Sec. 2) deponent in contempt of (Sec. 4) pay him reasonable expenses

court incurred, including attorneys
fees
The court may make the PROVIDED that party
following orders: requesting proves
1. Prohibit the disobedient genuineness of such
party to introduce document or truth
evidence of physical or UNLESS court finds:
mental condition 1. There were good
2. Refuse to allow the reasons for denial
disobedient party to 2. Admissions sought
Refusal to support or oppose claims were of no
answer or defenses importance
designated 3. Strike out pleadings or
questions or parts thereof The court on motion and
refusal to 4. Stay further proceedings notice may:
produce 5. Dismiss the action or 1. Strike out all or any part
documents or proceeding or any part of any pleading of
to submit to thereof Failure of disobedient party
physical or 6. Render a judgment by party to attend 2. Dismiss the action or
mental default against or serve proceeding or any part
examination disobedient party answers to thereof
(Sec. 3) 7. Direct the arrest of any written 3. Enter a judgment by
party disobeying any of interrogatories default against
such orders except an (Sec. 5) disobedient party
order to submit to a 4. Order payment of
physical or mental reasonable expenses
examination incurred by the other
8. Other orders as may be including attorneys fees
just
NOTE: Expenses and attorneys fees are not to
Refusal to The court, upon proper be imposed upon the Republic of the
admit under application, issue an order Philippines. (Rule 29, Sec. 6)
Rule 26 requiring the other party to
TRIAL GENERAL RULE: When an issue exists, trial is
necessary. Decision should not be made without
DEFINITION trial.

A trial is the judicial process of investigating and EXCEPTIONS: When there may be judgment
determining the legal controversies, starting without trial
with the production of evidence by the plaintiff 1. Judgment on the pleading (Rule 34)
and ending with his closing arguments [Acosta v. 2. Summary Judgment (Rule 35)
People (1962)]. 3. Judgment on Compromise
4. Judgment on Confession
A hearing is a broader term. It is not confined to 5. Dismissal with Prejudice (Rule 17)
the trial and presentation of the evidence 6. Judgment under Rule on Summary
because it actually embraces several stages in Procedure, and
the litigation. It includes the pre-trial and the 7. Stipulation of fact
determination of granting or denying a motion.
[Trocio v. Labayo (1973)]
ADJOURNMENTS AND POSTPONEMENTS
(Rule 30, Sec. 2)
NOTICE OF TRIAL (Rule 30, Sec. 1)
GENERAL RULE: A court may adjourn a trial
Upon entry of a case in the trial calendar, the from day to day, and to any stated time, as the
clerk shall notify parties the date of its trial, expeditious and convenient transaction of
ensuring receipt of the notice at least 5 days business may require
before the trial date.
81
LIMITATION: The court has no power to adjourn
a trial for:
1. A period longer than one month for
each adjournment; or
2. More than 3 months in all
EXCEPTION: Unless authorized in writing by
the Court Administrator, SC
Postponement is not a matter of right. It is
addressed to the sound discretion of the court.
[Riano, citing Garces v Valenzuela (1989)]
REQUISITES OF MOTION TO POSTPONE
TRIAL
1. For absence of evidence (Rule 30, Sec.
3)
a. Submission of affidavit showing
that:
(1) The evidence is relevant; and
(2) Diligent efforts had been
exerted to procure the evidence
2. For illness of party or counsel (Rule 30,
Sec. 4)
a. A motion for postponement stating
the ground relied upon must be
filed; and
b. The motion must be supported by
an affidavit or sworn certification
showing:
(1) The presence of such party or
counsel at the trial is
indispensable; and
(2) That the character of his illness
is such as to render his non-
attendance excusable
AGREED STATEMENT OF FACTS (Rule 30, Sec.
6)
The parties may agree in writing upon the facts
involved in the litigation and submit the case for
judgment in the facts agreed upon without the
introduction of evidence
If the parties agree only on some of the facts in
issue, trial shall be held as to the disputed facts
in such order as the court shall prescribe.
Stipulation Of Facts in Stipulation Of Facts in
Civil Cases Criminal Cases
May be signed by the Must be signed by
counsel alone who both counsel and
has an SPA accused
May be made verbally Strict; it must always
or in writing be in writing
An agreed statement of facts is conclusive on the
parties, as well as on the court. Neither of the
parties may withdraw from the agreement, nor
may the court ignore the same. [McGuire v.
Manufactures Life]
ORDER OF TRIAL; REVERSAL OF ORDER (Rule
30, Sec. 5)
General Rule: Trial shall be limited to the issues
stated in the pre-trial order.
Exceptions:
1. Provisions on separate trials under Rule
31, Sec. 2
2. When for special reasons the court
directs otherwise
General Order of Trial:
1. Plaintiffs evidence in chief
2. Defendants evidence in chief and
evidence in support of his counterclaim,
cross-claim and 3rd-party complaint
3. 3rd-party defendant shall adduce
evidence of his defense, counterclaim,
cross-claim, and 4th party complaint
4. 4th-party defendant shall adduce
evidence, and so forth
5. Parties against whom any counterclaim
or cross-claim has been pleaded shall
adduce evidence in support of their
defense, in the order to be prescribed
by court
6. Parties may then respectively adduce
rebutting evidence only
a. Unless the court permits them to
adduce evidence upon original case
7. Upon admission of evidence, case
submitted for decision
a. Unless court directs parties to
argue or to submit respective
memoranda or any further pleading
Reverse Order of Trial:
in this situation, the defendant presents
evidence ahead of the plaintiff
When Proper: If the defendant in his answer
relies upon an affirmative defense
Where the answer of the defendant
admitted the obligation stated in the
complaint, although special defenses
were pleaded, the plaintiff has every
82
right to insist that it was for the
defendant to come forward with
evidence to support his special defenses
(Yu v. Mapayo)
Ratio: Plaintiff need not have to present
evidence since judicial admissions do not
require proof (Sec. 2, Rule 129)
CONSOLIDATION OR SEVERANCE OF
HEARING OR TRIAL (Rule 31)
CONSOLIDATION
When proper: When actions involving a common
question of fact or law are pending before the
court
Court action: The court may:
1. Order a joint hearing or trial of any or
all matters in issue in the actions
2. Order all actions consolidated
3. Such orders concerning proceedings
therein as may tend to avoid
unnecessary costs or delay
Purpose: To avoid multiplicity of suits, guard
against oppression or abuse, prevent delay, clear
congested dockets, simplify the work of the trial
court and save unnecessary costs and expenses
Where a case has been partially tried before one
judge, the consolidation of the same with
another related case pending before another
judge who had no opportunity to observe the
demeanor of the witness during trial makes the
consolidation not mandatory. [PCGG v.
Sandiganbayan (1992)]
It has been held that the rules do not distinguish
between cases filed before the same branch or
judge and those that are pending in different
branches or before different judges of the same
court, in order that consolidation may be proper,
as long as the cases involve the resolution of
questions of law or facts in common with each
other (Active Woods Products Co. Inc. v. CA)
SEVERANCE
When proper: This contemplates a single action
having a number of claims, counterclaims, cross-
claims, third-party complaints or issues which
may be separately tried
When separate trial of claims is conducted by
the court under this section, it may render
separate judgments on each claim (see Sec. 5,
Rule 36)
This provision permitting separate trials
presupposes that the claims involved are within
the jurisdiction of the court
- When one of the claims is not within its
jurisdiction, the same should be
dismissed, so that it may be filed in the
proper court
DELEGATION OF RECEPTION OF EVIDENCE
(Rule 30, Sec. 9)
General Rule: The judge of the court where the
case is pending shall personally receive the
evidence to be adduced by the parties.
Exception: The court may delegate the reception
of evidence to its clerk of court who is a member
of the bar in:
1. Default hearings;
2. Ex parte hearings;
3. Cases where parties agree in writing.
However, the clerk of court has no power to rule
on objections to any question/admission of
exhibits.
Objections shall be resolved by the court upon
submission of the clerks report and TSN within
10 days from termination of the hearing.
The rule requires that, where the reception of
evidence is delegated to the clerk of court, he
must also be a member of the bar. Neither
agreement by parties nor their acquiescence can
justify its violation. [Umali-Paco v. Quilala]
TRIAL BY COMMISSIONERS (Rule 32)
CONCEPTS
Commissioner - A person to whom a case
pending in court is referred, for him to take
testimony, hear the parties and report thereon
to the court, and upon whose report, if
confirmed, judgment is rendered
General rule: Trial by commissioner depends
largely upon the discretion of the court
Exception: In the following instances,
appointment of a commissioner is
necessary:
1. Expropriation (Rule 67)
2. Partition (Rule 69)
83
3. Settlement of Estate of a Deceased
Person in case of contested claims; and
4. Submission of Accounting by executors
or administrators
Kinds of trial by commissioners
1. Reference by consent of both parties.
2. Reference ordered on motion when:
a. Trial of an issue of fact requires the
examination of a long account on
either side
b. Taking of an account is necessary
for the courts information before
judgment, or for carrying
judgment/order into effect.
c. A question of fact, other than upon
the pleadings, arises in any stage of
a case or for carrying a
judgment/order into effect.
REFERENCE BY CONSENT
The court may order any or all of the issues in a
case to be referred to a commissioner by written
consent of BOTH parties. (Rule 32, Sec. 1)
Commissioners are to be:
1. Agreed upon by the parties; or
2. Appointed by the court
REFERENCE ORDERED ON MOTION
When proper:
1. When trial of an issue of fact requires
examination of long account
2. When taking of an account is necessary
3. When question of fact, other than upon
pleadings, arises upon motion or
otherwise, in any stage (Rule 32, Sec. 2)
Order of Reference: (Rule 32, Sec. 3)
1. When a reference is made, the clerk
shall furnish the commissioner with a
copy of the order of reference
2. Contents of the order:
a. It may specify or limit the powers of
commissioner
b. It may direct him to report only
upon particular issues; or to do or
perform particular acts; or to
receive and report evidence only
c. It may fix the date for beginning
and closing the hearings and for the
filing of his report
Powers of Commissioner:
1. Exercise power to regulate the
proceeding before him
2. Do all acts and take all measures
necessary or proper for the efficient
performance of his duties
3. Swear witnesses
4. Issue subpoena and subpoenas duces
tecum
5. Rule upon the admissibility of evidence
a. UNLESS otherwise provided in the
order of reference
NOTE: Limitations on the powers of
commissioner are found in the Order of
Reference.
Proceedings before the Commissioner (Rule 32,
Sec. 5)
1. Upon receipt of the order of reference,
the commissioner shall set a time and
place for the first meeting of parties or
their counsel
2. Notices shall be sent to parties or
counsel
3. Hearing is to be held within 10 days
after date of order of reference
4. If a party fails to appear, the
commissioner may: (Sec. 6)
a. Proceed ex parte; or
b. Adjourn the proceedings to a future
date giving notice to the absent
party
REPORT OF COMMISSIONER (Rule 32, Sec. 9)
1. When filed:
a. Filed upon completion of the trial
or hearing or proceeding before the
commissioner
b. Filed with the court
2. Contents:
a. Report in writing upon the matters
submitted to him by the order of
reference
b. When his powers are not specified
or limited, he shall set forth his
findings of fact and conclusions of
law in his report
c. He shall attach all exhibits,
affidavits, depositions, papers, and
transcripts, if any, of testimonial
evidence presented before him
NOTICE AND HEARING ON THE REPORT (Rule
32, Sec. 10 and 11)
84

Upon filing of the report of the commissioner: 1. When made: Upon expiration of the 10
1. Parties shall be notified by the clerk day period in Sec. 10
2. Parties shall be allowed 10 days within 2. The report shall be then set forth in
which to object to the findings of the hearing
report 3. After the hearing, the court shall issue
an order, either:
NOTE: Objections to the report based a. Adopting, modifying, or rejecting
upon grounds which were available to the report in whole or in part
the parties during the proceedings b. Or recommitting it with
before the commissioner shall not be instructions
considered by the court UNLESS they c. Or requiring the parties to present
were made before the commissioner further evidence before the
commissioner or the court
Hearing on the Report:

DEMURRER TO EVIDENCE
EFFECT OF DENIAL; EFFECT OF GRANT
CONCEPTS:

Definition - A species of MTD that may be Denial of demurrer

Grant of demurrer
invoked based on insufficiency of evidence (i.e.
upon the facts and the law the plaintiff has The defendant shall
shown no right to relief). [Rule 33, Sec. 1] have the right to
present evidence
It is invoked after the plaintiff has presented all
the evidence available to him The case shall be The court should set
dismissed the date for the
Judgment on Demurrer to Evidence It is a reception of the
judgment rendered by the court dismissing a defendants evidence-
case upon motion of defendant, made after in-chief [Northwest
plaintiff has rested his case, on the ground that Airlines v. CA (1998)]
upon the facts presented and the law on the Plaintiff's remedy
matter, plaintiff has not shown any right to would be to appeal.
relief.
However, if the order
Distinctions granting the demurrer
is reversed on appeal,
DEMURRER TO the defendant loses his
MOTION TO DISMISS right to present
EVIDENCE
Presented before a evidence. [Rule 33, Sec
It is presented after 1; Republic v. Tuvera
responsive pleading is xxx
the plaintiff has (2007)]
made by the
rested his case
defendant
It may be based on The appellate court
The ground is based should render
any of those
on the insufficiency of judgment on the basis
enumerated in Rule
evidence of the evidence
16
If the motion is If the motion to submitted by the
denied, the defendant dismiss is denied, the plaintiff. [Radiowealth
may present his defendant may file his Finance v. Del Rosario
evidence responsive pleading (2000)]
If the motion to An interlocutory order
If the motion is and not appealable.
dismiss is granted, the Equivalent to
granted, the However, it may be the
complaint is judgment (i.e. based
complaint is subject of a petition for
dismissed and on the merits of the
dismissed certiorari for GAD
depending on the evidence presented so
The plaintiffs remedy under Rule 65
ground, the complaint far)
is to appeal [Katigbak v.
may be re-filed
Sandiganbayan
85

(2003)] necessary so that the

accused could present
his evidence if
demurrer is denied
If the court finds If the court finds the
plaintiffs evidence prosecutions
insufficient, it will evidence insufficient,
WAIVER OF RIGHT TO PRESENT EVIDENCE grant demurrer by it will grant demurrer
dismissing the by rendering
If the order granting the demurrer is reversed complaint judgment of acquittal.
on appeal, the defendant loses his right to The judgment of
present evidence. [Rule 33, Sec .1; Republic v. dismissal is
Tuvera (2007)] appealable.
If plaintiff appeals
Two scenarios: and judgment is
reversed by the
MOTION GRANTED appellate court, it will
Judgment of acquittal
MOTION DENIED BUT REVERSED ON decide the case on the
is NOT appealable.
APPEAL basis of plaintiffs
Double jeopardy sets
Movant is deemed to evidence with the
in.
have waived his right consequence that the
to present evidence. defendant already
The decision of the loses his right to
appellate court will present evidence.
Movant shall have the be based only on the There is no res
right to present his evidence of the judicata in dismissal
evidence plaintiff as the due to demurrer.
defendant loses his The plaintiff files a
The court may motu
right to have the case motion to deny
proprio deny the
remanded for motion to demurrer
motion
reception of his to evidence
evidence If court denies the
Denial is demurrer filed with
INTERLOCUTORY leave, accused may
Order of the court is present his evidence.
Sec. 1, Rule 36 (that
an ADJUDICATION If court denies the
judgment should state If court denies the
ON THE MERITS demurrer filed
clearly and distinctly demurrer, defendant
Hence, the without leave, accused
the facts and the law will present his
requirement in Sec. 1, can no longer present
on which it is based) evidence
Rule 36 should be his evidence and
will NOT apply.
complied with submits the case for
The denial is NOT
appealable decision based on the
prosecutions
evidence
DEMURRER TO EVIDENCE IN CIVIL CASES
VERSUS CRIMINAL CASES

CIVIL CASES CRIMINAL CASES

May be filed with or
Defendant need not
without leave of court.
ask for leave of court
Leave of court is

JUDGMENTS AND
JUDGMENTS IN GENERAL
Definition - The final ruling by a court of

FINAL ORDERS competent jurisdiction regarding the rights and

obligations of the parties or other matters
submitted to it in an action/proceeding
[Macahilig v. Heirs of Magalit (2000)]
86
Requisites of a Valid Judgmen (Rule 36, Sec. 1;
Art. VIII, Sec. 14, 1987 Constitution)
1. Court/tribunal must be with authority
to hear and determine the matter
before it;
2. Court must have jurisdiction over the
parties and the subject matter;
3. Parties must have been given an
opportunity to adduce evidence in their
behalf;
4. Evidence must have been considered by
the tribunal in deciding the case;
[Acosta v. COMELEC (1998)]
5. Judgment must be in writing, personally
and directly prepared by the judge. A
verbal judgment is, under the law,
ineffective. [Corpus v. Sandiganbayan
(2004)]
6. Judgment must state clearly the facts
and the law upon which the decision is
based, signed by the judge and filed
with the clerk of court. [Rule 35, Sec. 1]
Kinds of Judgment:
1. JUDGMENT ON COMPROMISE - It is one
conferred on the basis of a compromise
agreement entered into between the
parties. It is immediately executory in
the absence of a motion to set aside on
the ground of FAME.
2. JUDGMENT UPON CONFESSION - It is
one rendered by the court when a party
expressly agrees to the other partys
claim or acknowledges the validity of
the claim against him.
a. JUDGMENT BY COGNOVIT
ACTIONEM After service, the
defendant, instead of entering a
plea, acknowledged and confessed
that the plaintiffs cause of action
was just and rightful.
b. JUDGMENT BY CONFESSION
RELICTA VERIFICATIONE After
pleading and before trial, the
defendant both: (a) confessed the
plaintiffs cause of action and (b)
withdrew his plea or other
allegations, whereupon judgment
was entered against him without
proceeding to trial.
3. JUDGMENT UPON THE MERITS - It is
one that is rendered after consideration
of the evidence submitted by the parties
during the trial of the case. A judgment
is on the merits when it amounts to a
legal declaration of the respective rights
and duties of the parties, based upon
the disclosed facts
4. CLARIFICATORY JUDGMENT - It is
rendered to clarify an ambiguous
judgment or one difficult to comply
with.
5. JUDGMENT NUNC PRO TUNC - Literally,
now for then. It is a judgment
intended to enter into the record the
acts which had already been done, but
which do not appear in the records.
[Lichauco v. Tan Pho (1923)]
6. JUDGMENT SIN PERJUICIO - It may
refer to a dismissal of a case without
prejudice to it being re-filed.
7. CONDITIONAL JUDGMENT - It is one the
effectivity of which depends upon the
occurrence or non-occurrence of an
event. Such a judgment is generally void
because of the absence of a disposition
[Cu-Unjieng v. Mabalacat Sugar Co.
(1940)]
8. SEVERAL JUDGMENT - It is one
rendered by a court against one or more
defendants and not against all of them,
leaving the action to proceed against
the others. [Rule 36, Sec. 4] It is proper
when the liability of each party is
clearly separate and distinct from his
co-parties such that the claims against
each of them could have been the
subject of separate suits, and the
judgment for or against one of them will
not necessarily affect the other.
9. SEPARATE JUDGMENT - It is one
rendered disposing of a claim among
several others presented in a case, after
a determination of the issues material
to a particular claim and all
counterclaims arising out of the
transaction or occurrence that is the
subject matter of said claim. [Rule 36,
Sec. 5] It is proper when more than one
claim for relief is presented in an action
for the determination as to the issues
material to the claim has been made.
10. MEMORANDUM DECISION - A decision
of the appellate court which adopts the
findings and conclusions of the TC.
87
a. A judgment is considered rendered
upon the filing of the signed
decision.
b. This includes an amended decision
because an amended decision is a
distinct and separate judgment and
must follow the established
procedural rule.
JUDGMENT WITHOUT TRIAL
When trial is NOT necessary:
1. The pleadings of the parties tender no
issue at all judgment on the pleadings
may be directed by the court [Rule 34]
2. There is actually no genuine issue from
the pleadings, affidavits, depositions
and other papers court may render a
summary judgment [Rule 35]
3. Parties entered into a compromise or an
amicable settlement either during the
pre-trial or during the trial [Rule 18;
Art. 2028 Civil Code]
4. Complaint has been dismissed with
prejudice [Rule 16, Sec. 5; Rule 17, Sec.
3; Rule 7, Sec. 5 (last par.)]
5. Case falls under the Rules on Summary
Procedure
6. Agreed statement of facts [Rule 30, Sec.
6]
88
CONTENTS OF A JUDGMENT
Parts of a Judgment
1. Body, Ratio decidendi, or Opinion of the
court It contains the findings of facts
and conclusions of law;
2. Fallo, or Disposition of the case It is
the dispositive part of the judgment that
actually settles and declares the rights
and obligations of the parties, finally,
definitively, and authoritatively [Light
Rail Transit Authority v. CA] (2004);
The part of the judgment that is subject
to execution [Riano]
3. Signature of the judge
Distinction between Judgment and Opinion of the
Court
1. A judgment (or FALLO) must be
distinguished from an opinion.
2. The latter is the informal expression of
the views of the court and cannot
prevail against its final order or
decision.
3. While the two may be combined in one
instrument, the opinion forms no part
of the judgment.
4. So there is a distinction between the
findings and conclusions of a court and
its judgment.
5. While they may constitute its decision
and amount to a rendition of a
judgment they are not the judgment
itself.
6. They amount to nothing more than an
order for judgment, which, of course,
must be distinguished from the
judgment. [Freeman on Judgments, Vol.
I, 5th Edition, page 6, quoted in Casilan
v. Salcedo (1969)]
Conflict Between Dispositive Portion and Body of
Decision
Rule: Where there is a conflict between the fallo
and the body of the decision, the fallo controls.
Qualification: This rule applies only when the
dispositive part is definite, clear, and
unequivocal [Union Bank v. Pacific Equipment
Corporation (2008)]
Basis: The fallo is the final order. The opinion in
the body is merely a statement ordering nothing
[Poland Industrial Limited v. National
Development Company (2005)]
JUDGMENT ON THE PLEADINGS
Judgment on the Pleadings is a judgment
rendered by the court if the answer fails to
tender an issue, or otherwise admits the
material allegations of the adverse partys
pleading. It is rendered without a trial, or even
without a pre-trial
It has been held that a motion for a judgment on
the pleadings, were the answer admits all
material averments, is one that may be
considered ex parte because upon the particular
facts thus presented and laid down before the
court, the plaintiff is entitled to a judgment
(Dino v. Valencia), or motu proprio under Rule
18(2g) (Luzon Dev. Bank v. Conquilla)
Grounds for Judgment on the Pleadings (Rule 34,
Sec. 1)
1. The answer fails to tender an issue
because of:
a. General denial of the material
allegations of the complaint;
b. Insufficient denial of the material
allegations of the complaint; OR
2. The answer admits material allegations
of the adverse partys pleading
Judgment on the Pleadings is NOT proper in
actions for:
1. Declaration of Nullity of Marriage
2. Annulment of marriage; and
3. Legal Separation
4. Unliquidated damages; claims for such
damages must be alleged and proved
5. Admission refers only to allegations of
fact and not conclusions of law
6. Insufficiency of facts; proper remedy is
amendment
NOTE: If the complaint states no cause of action,
a motion to dismiss should be filed and not a
motion for judgment on the pleadings.
89
SUMMARY JUDGMENTS
Summary Judgment is a judgment rendered by a
court without trial if it is clear that there exists
NO GENUINE ISSUE or controversy as to any
material fact, EXCEPT as to the amount of
damages
Genuine Issue - an issue of fact which calls for the
presentation of evidence as distinguished from
an issue, which is a sham, fictitious, contrived,
and patently unsubstantial so as not to
constitute a genuine issue for trial
PROCEDURE (Rule 35, Sec. 3)
1. Movant files a motion for summary
judgment with supporting affidavits,
depositions or admission
2. Service to the adverse party at least 10
days the hearing
3. Adverse party may serve opposing
affidavits, depositions or admissions at
least 3 days before the hearing
4. Hearing Court shall determine if a
genuine issue as to any material fact
exists and if the movant is entitled to a
summary judgment as a matter of law
5. Court renders summary judgment
NOTE: Damages must still be proven
even if not denied.
Bases for Summary Judgment:
1. Affidavits made on personal knowledge;
2. Depositions of the adverse or a 3rd
party; (Rule 23)
3. Admissions of the adverse party; (Rule
26)
4. Answers to interrogatories. (Rule 25)
WHO MAY FILE
Who may file the When
motion
Claimant May file the motion only
after the answer has been
served
Defendant May file the motion any
time
NOTE: Filing of a motion for summary judgment
does not interrupt the running of the period for
filing an answer. Hence, the movant must also
file a Motion for Extension of Time to File
Answer.
TEST: Whether or not the pleadings, affidavits
and exhibits in support of the motion are
sufficient to overcome the opposing papers and
to justify the finding that, as a matter of law,
there is no defense to the action or claim is
clearly meritorious (Estrada v. Consolocaion, et
al.)
WHEN THE CASE IS NOT FULLY
ADJUDICATED
Partial Summary Judgment - Applies when for
some reason there can be no full summary
judgment. Trial should deal only with the facts
not yet specified or established.
Nature It is interlocutory in nature and is not a
final and appealable judgment. (Guevarra v. CA)
Duty of the Court (Rule 35, Sec. 4)
1. Ascertain what material facts exist
without substantial controversy and
what are actually and in good faith
controverted based on:
a. An examination of the pleadings
and evidence before it
b. Interrogation of the counsel
2. Make an order specifying the facts and
the extent of the amount of damages
that appear without substantial
controversy
3. Direct further proceedings as are just
4. Conduct trial on the controverted facts
accordingly
Effect - A partial summary judgment is not a
final judgment, but merely a pre-trial
adjudication that said issues in the case shall be
deemed established for the trial of the case.
[Guevarra v. CA (1983)]
AFFIDAVITS AND ATTACHMENTS
These are submitted to support the motion for
summary judgment.
Form of affidavits and supporting papers (Rule
35, Sec. 5)
1. Made on personal knowledge
2. Shall set forth such facts as would be
admissible in evidence
3. Shall show affirmatively that the affiant
is competent to testify to the matters
stated therein.
90

4. Sworn or certified true copies of all be issues but material

papers or parts thereof referred to in these are allegations
the affidavit shall be attached thereto irrelevant
OR served therewith. 10-day notice 3-day notice 3-day notice
required required rule applies
Affidavits in bad faith May be
1. Affidavits presented under this Rule interlocutory
which appear to the court at any time as On the merits On the merits
or on the
presented in bad faith or solely for the merits
purpose of delay Available
2. Effects: only in Available in Available in
a. Court shall order the offending actions to any action any action
party or counsel to pay the other recover a except except
party amount of reasonable debt, or for a annulment of annulment of
expenses which the filing of the liquidated marriage, or marriage, or
affidavits caused him to incur, sum of money legal legal
including attorneys fees or for separation separation
b. Court may adjudge the offending declaratory cases cases
party or counsel guilty of contempt, relief
after hearing If filed by
plaintiff, it
must be filed
SUMMARY JUDGMENT at any time
after an
Validity: Sec. 3, Rule 35 requires: answer is
1. That there must be NO genuine issue as There is
served. There is no
to any material fact, except for the already an
If filed by answer filed
amount of damages; and answer filed
defendant,
2. That the party presenting the motion may be filed
for summary judgment must be entitled at any time
to a judgment as a matter of law even before
there is
answer
SUMMARY JUDGMENT v. JUDGMENT ON THE
PLEADINGS v. JUDGMENT BY DEFAULT

JUDGMENT
JUDGMENT
SUMMARY ON
BY
JUDGMENT THE
DEFAULT
PLEADINGS
Based on the
Based on the
complaint
pleadings, Based solely
and evidence,
depositions, on the
if
admissions, pleadings
presentation
and affidavits
is required
Generally
available only
Available to to the
both plaintiff plaintiff, Available to
and unless the plaintiff
defendant defendant
presents a
counterclaim
There is no The answer No issue as
genuine issue fails to tender no answer is
between the an issue or filed by the
parties there is an defending
i.e. There may admission of party
91
RENDITION OF JUDGMENTS AND
FINAL ORDERS
FORM OF JUDGMENT (Rule 36, Sec. 1)
1. In writing
2. Personally and directly prepared by the
judge
3. Stating clearly & distinctly the facts and
the law on which it is based
4. Signed by the judged
5. Filed with the clerk of court.
DEFINITION OF RENDITION OF JUDGMENT
It is the filing of the judgment with the clerk of
court. It is not the pronouncement of the
judgment in open court that constitutes the
rendition. Even if the judgment has already been
put in writing and signed, it is still subject to
amendment if it has not yet been filed with the
clerk of court and before its filing does not yet
constitute the real judgment of the court. [Ago v.
CA (1962)]
PERIOD OF RENDITION (Art VIII, Sec. 5, 1987
Constitution)
1. All cases filed must be decided or
resolved by the Supreme Court within
24 months from the date of their
submission for decision.
2. Unless reduced by the SC, within 12
months for lower collegiate courts and
within 3 months for all other lower
courts.
A case is deemed submitted for resolution upon
the filing of the last pleading, brief or
memorandum required by the Rules of Court or
by the court.
An extension of the period may be set by the SC
upon request by the judge concerned on account
of heavy caseload or by other reasonable excuse
[Arap v Mustafa (2002)]
ENTRY OF JUDGMENT AND FINAL
ORDER
DEFINITION
The entry of judgment refers to the physical act
performed by the clerk of court in entering the
dispositive portion of the judgment in the book
of entries of judgment after the same has
become final and executory. [Riano]
It is the filing of the signed decision with the
clerk of court, and not its pronouncement in
open court that constitutes rendition of
judgment (Ago v. CA)
Promulgation refers to the process by which a
decision is published, officially announced, made
known to the public or delivered to the clerk of
court for filing, coupled with notice to the
parties or their counsel
Rendition of judgment Entry of judgment
Act of clerk of court in
entering the
Filing of the judgment dispositive portion of
with the clerk of court the judgment in the
book of entries of
judgment
ENTRY OF JUDGMENTS AND FINAL ORDERS
(Rule 36, Sec. 2)
When entered: If no appeal or motion for new
trial or reconsideration is filed within the time
provided in the Rules, judgment or final order
shall forthwith be entered by the clerk in the
book of entries of judgments
Date of Finality: Date of finality is the date of
entry.
Contents of the Records in the Book of Entries:
1. Dispositive part of the judgment or final
order
2. Signed by the clerk with a certification
that such judgment or final order has
become final and executory.
AMENDMENTS TO JUDGMENT
General Rule: Once a judgment becomes final
and executory, such judgment can no longer be
disturbed, altered, or modified
92
Exceptions:
1. Clerical errors
2. Nunc Pro Tunc entries
3. Void judgments - Final judgment can be
annulled on the ground of fraud or lack
of jurisdiction or contrary to law
(Panlilio v. Garcia)
4. Whenever circumstances transpire
after finality of the decision making its
execution unjust and inequitable:
a. Cases where, because
supervening events, it becomes
imperative, in the higher interest of
justice, to direct its modification in
order to harmonize the disposition
with the prevailing circumstances
(Seavan Carrier Inc. v. GTI
Sportswear Corp.)
b. Whenever it is necessary to
accomplish the aims of justice
(Pascual v. Tan)
POST-JUDGMENT
REMEDIES
MOTION FOR RECONSIDERATION
AND MOTION FOR NEW TRIAL
REMEDIES BEFORE FINALITY OF JUDGMENT
1. Motion for reconsideration
2. Motion for new trial
3. Appeal
DEFINITION
A motion for reconsideration under Rule 37 is
directed against a judgment or final order. It is
not the motion for reconsideration of
interlocutory order, which often precedes a
petition for certiorari under Rule 65. It does not
apply to cases that fall under Summary
Procedure.
GROUNDS: (Rule 37, Sec. 1)
Grounds for Motion for New Trial:
1. FAME Fraud, accident, mistake,
excusable negligence
a. Conditions:
(1) Which ordinary prudence could
not have guarded against; and
(2) By reason of which such
aggrieved party has probably
been impaired in his rights
Amended/clarified
Supplemental decision
judgment
An entirely new
Does not take the
decision and
place of or extinguish
supersedes the
the original judgment
original judgment
Court makes a
thorough study of the
original judgment and
of renders the amended Serves to add to the
and clarified judgment original judgment
only after considering
all the factual and legal
issues
NOTE: Fraud must be extrinsic fraud
which means any fraudulent scheme
executed by the prevailing party outside
of the trial against the losing party who
because of such fraud is prevented from
presenting his side of the case.
2. Newly discovered evidence
a. Requisites:
(1) It must have been discovered
after the trial
(2) It could not have been
discovered and produced at the
trial even with the exercise of
reasonable diligence; and
(3) The evidence is of such weight
that if admitted, would
probably alter the result of the
action; and
(4) It must be material and not
merely collateral, cumulative,
or corroborative
Grounds for Motion for Reconsideration:
1. Damages awarded are excessive
2. Evidence is insufficient to justify the
decision or final order
3. The decision or final order is contrary
to law
WHEN TO FILE:
An aggrieved party may file a motion for new
trial or reconsideration within the period for
taking an appeal.
93
The motions are filed with the court which
rendered the questioned judgment or final
order.
The period for appeal is within 15 days after
notice to the appellant of the judgment or final
order appealed from. The 15-day period is
deemed to commence upon receipt by the
counsel of record, which is considered notice to
the parties. Service upon the parties themselves
is prohibited and is not considered as official
receipt of judgment.
Effect of Filing The filing of a timely motion
interrupts the period to appeal.
FORM AND CONTENTS (Rule 37, Sec. 2)
Form:
1. The motion must comply with the
provisions of Rule 15 otherwise it will
not be accepted for filing and/or will
not suspend the running of the
reglementary period.
2. It shall be made in writing, stating the
ground or grounds therefor
3. Written notice shall be served by
movant on the adverse party
NOTE: Non-compliance with this
requirement would reduce the motion
to a mere pro forma motion, which shall
not toll the period for appeal.
Contents of a motion for new trial
1. If based on FAME, it shall be supported
by an affidavit of merits
NOTE: An affidavit of merits is one
which recites the nature and character
of FAME on which the motion is based
and stating the movants good and
substantial cause of action or defense
and the evidence he intends to present
if granted
2. If based on newly found evidence, it
shall be supported by:
a. Affidavits of witnesses by whom
such evidence is expected or given;
or
b. Duly authenticated documents
which are proposed to be
introduced in evidence
Contents of a motion for reconsideration
1. Shall point out specifically the findings
or conclusions of the judgment or final
order which are not supported by
evidence or which are contrary to law
2. Make express reference to testimonial
or documentary evidence or provisions
of law alleged to be contrary to such
findings or conclusions
RESOLUTION OF MOTION AND COURT
ACTION
Court action The court may: (Rule 37, Sec. 3)
1. Set aside the judgment or final order
and grant a new trial; or upon such
terms as may be just
2. Deny the motion
3. Amend such judgment or final order
accordingly if:
a. The court finds that excessive
damages have been awarded or
that; or
b. That the judgment or final order is
contrary to the evidence or law
Resolution (Rule 37, Sec. 4) he motion shall be
resolved within 30 days from submission
The 30-day period to resolve the motion is held
to be mandatory [Gonzales v. Bantolo (2006)]
GRANT OF THE MOTION; EFFECT
Grant of motion for reconsideration - The court
may amend the judgment or final order
accordingly. The amended judgment is in the
nature of a new judgment, which supersedes the
original judgment.
Grant of motion for new trial - The original
judgment shall be vacated, and the action shall
stand for trial de novo. The recorded evidence
upon the former trial shall be used at the new
trial without retaking them (if they are material
and competent).
Partial grant Rule 37, Sec. 7 allows the court to
order a new trial or grant reconsideration as to
such issues if severable without interfering with
the judgment or final order upon the rest.
REMEDY WHEN MOTION IS DENIED; FRESH
15-DAY RULE
Effect of Denial of Motion The judgment or final
order shall stand as is
Single-Motion Rule (Rule 37, Sec. 5) A party
shall not be allowed to file a 2nd motion for
reconsideration.
94

- Follow the Omnibus Motion Rule motion for new trial or

reconsideration from the non-
NOTE: While a 2nd motion for reconsideration is appealable orders.
not allowed, a second motion for new trial is
authorized
- However, it must be based on a ground MOTION FOR MOTION FOR
not existing nor available when the 1st NEW TRIAL RECONSIDERATION
motion was made within the period Grounds: Grounds:
allowed but excluding the time during 1. Fraud, accident, 1. Damages
which the first motion had been mistake, or awarded
pending. excusable are
negligence excessive
Fresh 15-Day Rule: The aggrieved party has a 2. Newly 2. That
fresh period of 15 DAYS within which to file discovered evidence is
his appeal. evidence insufficient
Note the to justify
If the motion is denied, the movant has a fresh qualificatio the
period of 15 days from receipt or notice of the ns of each decision or
order denying the motion for new trial or final order
motion for reconsideration within which to file 3. That
an appeal. (Neypes v. CA, 2005) decision or
final order
NOTES: is contrary
1. This fresh period becomes significant to law
only when a party opts to file a motion Second motion from
for new trial or reconsideration the same party is
2. This rule does not refer to the period Second motion may be
prohibited.
within which to appeal from the order allowed so long as
The prohibition
denying the motion for reconsideration based on grounds not
applies only to final
but to the period within which to appeal existing or available at
orders or
from the judgment itself. the time the first motion
judgments, hence it
was made
is allowed in
Filing of a proper motion for new trial interrupts interlocutory orders
the running of the period of appeal which begins If the court finds
to run again from receipt of the notice of the that excessive
movant of the order denying his motion (fresh If a new trial is granted, damages have been
15 day period) (Phil. Commercial and Industrial original judgment or awarded or that the
Bank v. Ortiz) final order is vacated. judgment or final
The case stands for trial order is contrary to
Remedies if Motion is DENIED: de novo and will be the evidence or law,
1. To appeal from the judgment or final tried anew it may amend such
order itself judgment or final
2. The order denying the motion may itself order accordingly
be assailed by a petition for certiorari Available against
under Rule 65 Available even on
the judgments or
3. Rule 37, Sec. 9 says that an order appeal but only on the
final orders or both
denying a motion for new trial or ground of newly
the trial and
reconsideration is NOT appealable discovered evidence
appellate courts
a. NOTE HOWEVER: AM 07-7-12 Both are prohibited motions under Summary
amended Sec. 1 of Rule 41 by Procedure
deleting An order denying a
APPEALS IN GENERAL accordance with provisions of the law.
It must comply with the requirements;
NATURE OF APPEAL failing to do so, the right to appeal is
lost
1. Not a natural right nor a part of due 3. Once granted, appeals become part of
process due process and should be liberally
2. It is merely a statutory right, and may applied in favor of the right to appeal
be exercised only in the manner and in
95

Not appealable except

JUDGMENTS AND FINAL ORDERS SUBJECT TO through a petition for
Appealable
APPEAL; MATTERS NOT APPEALABLE certiorari under Rule
65
Rule 41, Sec. 1, as amended by AM 07-7-12-SC Must clearly and
(2007) provides: No need to comply
distinctly state the law
1. Appeal may be taken from a judgment with such a
and the facts on which
or final order that completely disposes requirement
it is based
of the case, or of a particular matter
therein when declared by the Rules to An interlocutory order is one that does not
be appealable finally dispose of the case, and does not end the
court's task of adjudicating the parties
2. No appeal may be taken from: contentions and determining their rights and
a. An order denying a petition for liabilities as regards each other, but obviously
relief or any similar motion seeking indicates that other things remain to be done.
relief from judgment; [BPI v. Lee (2012)]
b. An interlocutory order;
c. An order disallowing or dismissing
an appeal; REMEDY AGAINST JUDGMENTS AND ORDERS
d. An order denying a motion to set WHICH ARE NOT APPEALABLE
aside a judgment by consent,
confession or compromise on the The aggrieved party may file a special civil
ground of fraud, mistake or duress, action under Rule 65. (Rule 41, Sec. 1)
or any other ground vitiating
consent;
e. An order of execution; MODES OF APPEAL
f. A judgment or final order for or 1. Ordinary appeal Rule 40 and 41
against one or more of several a. Notice of appeal
parties or in separate claims, b. Record on appeal
counterclaims, cross-claims and 2. Petition for review Rule 42
third-party complaints, while the 3. Petition for review on certiorari Rule
main case is pending, unless the 45
court allows an appeal therefrom;
and PETITION FOR
g. An order dismissing an action ORDINARY PETITION
REVIEW ON
without prejudice. APPEAL FOR REVIEW
CERTIORARI
Appeal by
NOTE: AM 07-7-12-SC removed Rule 42 Rule 45
writ of error
from the original list an order Case is Case decided
denying a motion for new trial or Case decided
decided by by RTC in the
reconsideration. by the RTC, CA,
RTC in its exercise of
CTA, and
original its appellate
NOTE, HOWEVER: Rule 37, Sec. 9 Sandiganbayan
jurisdiction jurisdiction
which states that no appeal can be Petition for
made from an order denying MR or Appealed to Appealed to the
review with
MNT. the CA SC
the CA
File a File verified
Only final judgments or orders can be appealed verified petition for
as distinguished from interlocutory judgments File notice of petition for review on
or orders which are not appealable. appeal or review with certiorari with
record of CA. the SC.
appeal with Pay docket Pay docket and
Final Order court of and lawful lawful fees and
Interlocutory Order
origin and fees and P500 for costs.
Disposes of the matter give a copy P500 as Submit proof of
Does not dispose of a
in its entirety, leaving to adverse deposit for service of a
case completely but
nothing more to be party costs with copy to the
leaves something more
done but to enforce the CA. lower court
to be decided upon.
execution Furnish RTC and adverse
96

and adverse party final order

party a copy MTC to RTC to CA
of such The CA may
Within 15 Within 15 grant a 15 day
days from days from extension.
Within 15 days
notice of notice of No further
from notice of
judgment for decision to 15 days from notice of extension shall Fresh period
judgment or
notice of be reviewed the judgment or final be granted to appeal
order of denial
appeal and or from order OR from denial except for the from denial
of MFR or
30 days for denial of a of MR or MNT most MR or MNT
MFNT
records on MFR or compelling
appeal MFNT reasons and in
no case longer
than 15 days.
QJA to CA
ISSUES TO BE RAISED ON APPEAL The CA may
grant a 15 day
Limited to cognizable judgments/issues. 15 days from notice of extension. No
the award, judgment, further
The appellate court has no jurisdiction to review final order or extension shall Fresh period
a judgment which is immediately final and resolution or from date be granted to appeal
executory by express provision of law. [Republic of last publication if except for the from denial
v. Bermudez-Lorino (2005)] required by law OR most MR or MNT
from denial of MR or compelling
Rationale: Appeal is merely a privilege conferred MNT reasons and in
by law upon the litigants. no case longer
than 15 days.
A party cannot change the theory on appeal. RTC to SC
Only issues pleaded in the lower court and RTC to CA to SC
properly raised may be resolved by the CA to SC
appellate court. [Medina v. CA (1992)] 15 days from notice of The SC may
Fresh period
judgment or final order grant a 30 day
However, issues which are inferred from or to appeal
OR from denial of extension for
necessarily connected with the issue properly from denial
petitioners MR or justifiable
raised and pleaded may be resolved by the MR or MNT
MNT. reasons.
appellate court. [Espina v. CA (1992)]
The fresh period rule shall apply to:
1. Rule 40 governing appeals from the
PERIOD OF APPEAL Municipal Trial Courts to the Regional
Trial Courts;
EFFECT OF 2. Rule 42 on petitions for review from the
PERIOD TO APPEAL EXTENSIONS
MR or MNT Regional Trial Courts to the Court of
MTC to RTC Appeals;
By notice of appeal; 3. Rule 43 on appeals from quasi-judicial
Interrupts
within 15 days from No extensions agencies to the Court of Appeals; and
period to
notice of judgment or allowed 4. Rule 45 governing appeals by certiorari
appeal
final order to the Supreme Court. The new rule
By record of appeal; aims to regiment or make the appeal
within 30 days from period uniform, to be counted from
notice of judgment or receipt of the order denying the motion
final order for new trial, motion for
RTC to CA reconsideration (whether full or
By notice of appeal; partial) or any final order or resolution.
Interrupts
Within 15 days from No extensions [Neypes v. CA, (2005)]
period to
notice of judgment or allowed
appeal
final order Being procedural in nature, Neypes is
By record of appeal; deemed to be applicable to actions pending
within 30 days from and undetermined at the time of its
notice of judgment or effectivity and is thus retroactive in that
97

sense and to that extent. [First Aqua Sugar v. APPEAL FROM MUNICIPAL TRIAL
BPI (2007)] COURTS TO THE REGIONAL TRIAL
COURTS (RULE 40)
PERFECTION OF APPEAL
OUTLINE OF PROCEDURE (Rule 40, Sec. 7)
Perfection of an appeal in the manner and
within the period laid down by law is mandatory Appeal decision of MTC by filing notice of appeal and pay
within 15 days from receipt of judgment
and jurisdictional. [Balgami v. CA (2004)]

Effect of Failure to Perfect Appeal 15 days from perfection of appeal,

1. Defeats a partys right to appeal. MTC clerk transmits record to RTC
2. Precludes appellate court from
acquiring jurisdiction.
Notice to parties that an appeal is being taken
from the decision of the MTC

Within 15 days from notice of appeal:

1. Appellant submits memorandum to the RTC
2. Appellee files his own memorandum 15 days from
receipt of appellants memorandum

Court acts on the appeal

If uncontested, Any party may appeal

judgment is entered in by filing a petition for
the book of entries review with the CA

WHERE APPEAL IS TAKEN

It is taken to the RTC exercising jurisdiction over

the area to which the MTC pertains. (Rule 40,
Sec. 1)

WHEN TO APPEAL (Rule 40, Sec. 2)

1. If by notice of appeal, within 15 days
after notice to appellant of judgment or
final order appealed from
2. If record of appeal is required, within
30 days from notice of judgment or final
order
3. Period of appeal shall be interrupted by
a timely motion for new trial or
reconsideration

NOTE: The fresh 15 day period rule

applies.

HOW TO APPEAL (Rule 40, Sec. 3)

By Notice of Appeal
1. File a notice of appeal with the trial
court that rendered the judgment or
final order appealed from
2. The notice of appeal must indicate the
parties, the judgment or final order or
98

part thereof appealed from; the 2. If the case was tried on the merits by
material date showing timeliness of the MTC without jurisdiction over the
appeal subject matter:
3. A copy served on the adverse party; and a. The RTC shall NOT dismiss the case
4. Payment in full of docket fees and other if it has original jurisdiction
lawful fees b. If it has original jurisdiction, the
RTC shall decide the case and admit
By Record on Appeal amended pleadings or additional
1. Record on appeal is required for the evidence
following cases:
a. Special proceedings APPLICABILITY OF RULE 41 - The other
b. In such other cases where multiple provisions of Rule 41 shall apply to appeals
appeals are allowed provided for herein insofar as they are not
2. Form and contents of the record on inconsistent with or may serve to supplement
appeal: (Rule 41, Sec. 6) the provisions of this Rule.
a. Within 15 days from perfection of
appeal, clerk of court or the branch
clerk of the lower court shall
transmit to the RTC:
(1) Original record or record on
appeal
(2) Together with transcripts and
exhibits
b. Clerk shall make a certification that
the documents are complete
c. Clerk shall also furnish the parties a
copy of his letter of transmittal of
the records to the appellate court
3. Copy is served on the adverse party
4. Payment in full of docket fees and other
lawful fees

PERFECTION OF APPEAL

Since appeals from inferior courts may now be

either by notice of appeal or record on appeal,
the rules on the perfection and the effect thereof
are the same. See Sec. 9, Rule 41

APPEAL FROM ORDERS DISMISSING THE

CASE WITHOUT TRIAL; LACK OF
JURISDICTION (Rule 40, Sec. 8)

Two Scenarios:

1. If the MTC dismissed the case without

trial on the merits, the RTC may:
a. AFFIRM, if the ground of dismissal
is lack of jurisdiction over the
subject matter
(1) If the RTC has jurisdiction, it
shall try the case on the merits
as if the case was originally
filed therein

b. REVERSE, in which case, it shall

remand the case for further
proceedings
99
APPEAL FROM THE REGIONAL TRIAL
COURTS (RULE 41)
MODES OF APPEAL: There are three modes of
appeal from judgments or final orders of the
RTC:
1. ORDINARY APPEAL or appeal by writ of
error, where judgment was rendered in
a civil or criminal action by the RTC in
the exercise of its original jurisdiction
a. This mode of appeal, governed by
Rule 41, is taken to the CA on
questions of fact or mixed questions
of fact and law
2. PETITION FOR REVIEW, where
judgment was rendered by the RTC in
the exercise of its appellate jurisdiction
a. This mode of appeal, covered by
Rule 42, is brought to the CA on
question of fact, of law, or mixed
questions of fact and law
3. PETITION FOR REVIEW ON
CERTIORARI, or appeal by certiorari to
the SC
a. This mode of appeal, provided for
by Rule 45, is brought to the SC
from the decision of the RTC in the
exercise of its original jurisdiction
and only on questions of law
HOW ORDINARY APPEAL VIA RULE 41 IS
MADE:
Appeal via Rule 41 presupposes that:
1. The RTC rendered the judgment or final
order in the civil action or special
proceeding in the exercise of its
ORIGINAL jurisdiction; and
2. That the appeal is taken to the CA on:
a. Questions of fact or
b. Mixed questions of fact and law
Notice of Appeal Filed with the court which
rendered the judgment or final order appealed
from. A copy is served on the adverse party.
(Rule 41, Sec. 5)
Contents of the Notice of Appeal:
1. Parties to the appeal
2. Judgment or final order or part
thereof appealed from
3. The court to which the appeal is
being taken; and
4. The material dates showing the
timeliness of the appeal
Record on Appeal Done in special proceedings
and other cases where multiple or separate
appeals are allowed. This is filed and served in
the same manner as notice of appeal.
Contents of the Record (Rule 41, Sec. 6)
1. Full names of all the parties to the
proceedings shall be stated in the
caption of the record on appeal
2. It shall include the judgment or
final order from which the appeal is
taken,
3. In chronological order, copies of
only such pleadings, petitions,
motions, and all interlocutory
orders as are related to the
appealed judgment or final order
4. For the proper understanding of
the issue involved
5. Together with such data as will
show that the appeal was perfected
on time
Approval of the Record on Appeal (Rule
41, Sec. 7) Upon filing of the record for
approval and if no objection is filed by
the appellee within 5 days from receipt
of a copy thereof, the trial court may:
1. Approve it as presented; or
2. Direct its amendment by the
inclusion of any omitted matters
which are deemed essential
Joint Record on Appeal (Rule 41, Sec. 8)
Where both parties are appellants,
they may file a joint record on appeal.
PERIOD TO APPEAL (Rule 41, Sec. 2)
1. 15 days from notice of judgment or final
order appealed from
2. 30 days from notice of judgment or final
order where a record on appeal is
required
3. 48 hours from notice of judgment or
final order appealed from in habeas
corpus cases
Reckoning point of reglementary period: Period
for filing the appeal should be counted from the
date when the partys counsel received a copy of
the judgment or final order
When a party is represented by a
counsel, service of process must be
made on counsel, not on party (Fajardo
v. CA)
100
Effect of Motions for New Trial and
Reconsideration Originally, the period to
appeal is interrupted by a timely motion for new
trial and reconsideration. However, with the
Neypes doctrine, a party has a fresh 15-day
period from a denial of the motion to perfect an
appeal.
Extension of Period to Appeal
Period to appeal may be extended but such
extension is addressed to the sound discretion
of the court (Socco v. Garcia)
The mere filing and pendency of motion for
extension to perfect appeal does not suspend
the running of the reglementary period (Bello et
al., v. Fernandez)
PLEADINGS FILED (See Rule 44, Procedure in
the CA)
Appellants Brief
1. Filed within 45 days from receipt of
notice of clerk that all evidence is
attached to record
2. Follow the Efficient Use of Paper Rule,
one original properly marked and 2
copies with annexes
3. Attach proof of service to adverse party
Grounds for dismissal with respect to
appellants brief:
1. Failure to file brief on time
2. Failure to make specific assignment
of errors in his brief
Contents:
1. Subject index
2. Assignment of Errors
3. Statement of the Case
4. Statement of Facts
5. Statement of Issues
6. Arguments
7. Relief
8. Copy of judgment or final order
appealed from
Appellees Brief:
1. Filed within 45 days from receipt of
appellants brief
2. Manner of filing is similar to that in
appellants brief
Contents:
1. Subject index
2. Statement of Facts and Counter-
Statement of Facts
3. Arguments
Appellants Reply Brief
1. Filed within 20 days from receipt of
appellees brief
2. This is not mandatory as it is optional
on the part of the appellant
Extension of Time for Filing Briefs:
1. General rule: Not allowed
2. Exception: For good reasons and only if
motion for extension is filed before
expiration of time sought to be
extended
PERFECTION OF APPEAL
Payment of Docket Fees (Rule 41, Sec. 4)
Within the period for taking an appeal, the
appellant shall pay to the clerk of the court
which rendered the judgment or final order
appealed from, the full amount of the appellate
court docket and other lawful fees. Proof of
payment of said fees shall be transmitted to the
appellate court together with the original record
or the record on appeal.
Payment of docket fees in full is mandatory and
is a condition sine qua non for the perfection of
an appeal.
Perfection of Appeal (Rule 41, Sec. 9)
1. If appeal is by notice of appeal it is
deemed perfected as to him upon the
filing of the notice of appeal in due time
2. If appeal is by record on appeal it is
perfected as to him with respect to the
subject matter thereof, upon approval
of the record on appeal filed in due time
Effect of Perfected Appeal
1. In appeals by notice of appeal:
a. Court loses jurisdiction over the
case upon perfection of appeal filed
in due time and expiration of the
time to appeal of the other parties
b. NOTE: This rule applies individually
and to each of the parties since the
timeliness of their recourse for
appellate remedy depends on when
they respectively received a copy of
the judgment or final order
2. In appeals by record on appeal:
a. Court loses jurisdiction only over
the subject matter thereof upon
approval of the records on appeal
101

filed in due time and the expiration 2. Prior to transmittal of record on appeal
of the time to appeal of the other to the appellate court
parties
b. NOTE: The effect is limited to the How done: By the court, motu proprio, or on
subject matter only. Jurisdiction motion to dismiss appeal by a party
over the case is still with the trial
court Grounds:
1. Appeal was taken out of time
Residual Powers/Jurisdiction of the RTC After 2. Non-payment of docket and other
losing jurisdiction but prior to the transmittal of lawful fees within the reglementary
the original record on appeal, the RTC may: period
1. Order execution pending appeal under
Rule 39, Sec. 2 (motion for execution NOTE: The dismissal of the appeal in
was filed before expiration of the period RTC is limited only to these two
to appeal) grounds
2. To issue orders for preservation of the
rights of the parties which do not
involve matters litigated by appeal
3. To approve compromise prior to the
transmittal of the record
4. Permit appeal by an indigent
5. Allow withdrawal of the appeal

The concept of residual jurisdiction of the trial

court is available at a stage in which the court is
normally deemed to have lost jurisdiction over
the case or the subject matter involved in the
appeal. There is no residual jurisdiction to speak
of where no appeal or petition has even been
filed (Fernandez v. CA).

Duty of Clerk Upon Perfection of Appeal (Rule 41,

Sec. 10) Within 30 days after perfection of all
appeals, the RTC clerk shall:
1. Verify completeness of original record
or record on appeal and make
certification as to its correctness
2. Verify completeness of records that will
be transmitted to appellate court
3. If found to be incomplete:
a. Take such measures as may be
required to complete records
b. If efforts to complete records fail:
(1) Indicate in his letter of
transmittal the exhibits or
transcripts not included
(2) Reasons for their transmittal
(3) Steps taken or that could be
taken to have them available
4. Transmit the records to appellate court
and furnish the parties with copies of
his letter of transmittal

DISMISSAL OF APPEAL (Rule 41, Sec. 13)

When can the RTC dismiss the appeal?

1. Prior to transmittal of original record to
appellate court; or
102
PETITION FOR REVIEW FROM THE
REGIONAL TRIAL COURTS TO THE
COURT OF APPEALS (RULE 42)
Under this mode of appeal, it is NOT a matter of
right but is a matter of DISCRETION on the part
of the CA on whether or not to entertain the
appeal.
Appeal via Rule 42 is proper when one appeals
from a decision of the RTC in the exercise of its
APPELLATE jurisdiction.
Appeal under Rule 42 may be on either
questions of fact or of law or on mixed questions
of both
HOW APPEAL IS TAKEN; PERIOD OF APPEAL
(Rule 42, Sec. 1)
If a party desires to appeal from a decision of the
RTC in its appellate jurisdiction:
1. File a VERIFIED petition for review with
the CA
a. Within 15 days from notice of
decision, or
b. Within 15 days from notice of
denial of petitioners motion for
new trial or reconsideration
2. Pay the corresponding docket fee and
other lawful fees and depositing P500
for costs
3. Furnish the RTC and adverse party a
copy of the petition
Extension of period: - The CA may grant an
additional 15 days within which to file the
petition for review
- Conditions:
1. There was a motion filed to this
effect
2. Payment in full of docket fees and
other lawful fees as well as deposit
for costs
3. To be done within the reglementary
period
No further extension may be granted
EXCEPT for the most compelling reason
and in no case to exceed 15 days.
FORM AND CONTENTS OF THE PETITION FOR
REVIEW (Rule 42, Sec. 5)
Form of the petition:
1. Original copy is filed intended for the
court, properly marked and 2 copies
with their annexes (Efficient Use of
Paper Rule)
2. Accompanied by clearly legible
duplicate originals or true copies of
judgments or final orders of both lower
courts certified correct by the RTC clerk
3. Also with pleadings and other material
portions of record as would support the
allegations of the petition
Contents of the petition:
1. Full names of the parties without
impleading the lower courts or judges
thereof
2. Specific material dates showing
timeliness of appeal
3. Concise statement of:
a. Matters involved
b. Issues raised
c. Specification of errors of fact or
law, or both
d. Reasons or arguments relied upon
4. A certificate of non-forum shopping
must also be attached
EFFECT OF FAILURE TO COMPLY WITH
REQUIREMENTS (Rule 42, Sec. 3)
Failure to comply with any of the following
requirements shall be sufficient ground for
DISMISSAL
1. Payment of docket and other lawful fees
NOTE: In petitions for review under
Rules 42, 43, and 45, the docket fee is
paid in the appellate courts
2. Deposit for costs
3. Proof of service of petition
4. Contents of the documents, which
should accompany the petition
ACTION ON PETITION (Rule 42, Sec. 4)
The CA may:
1. Require respondent to file a comment
on the petition not a motion to dismiss
within 10 days from notice; or
2. Dismiss the petition if it finds the same
to be:
a. Patently without merit
b. Prosecuted manifestly for delay; or
c. The questions raised therein are
too unsubstantial to require
consideration
REMEMBER: Under this Rule, appeal is
discretionary on the CA which may give its due
103

course only when the petition shows prima facie

that the lower court has committed error.
COMMENT BY RESPONDENT (Rule 42, Sec. 5)
Form of Comment:
1. An original is filed, properly marked,
together with 2 copies with their
annexes (Efficient Use of Paper Rule)
2. Accompanied by certified true copies of
such material portions of the record
referred to therein
3. Together with other supporting papers
4. Copy of the comment served on
petitioner
Contents of Comment: The comment shall
1. State whether or not he accepts the
statement of matters involved in the
petition
2. Point out such insufficiencies or
inaccuracies as he believes exist in
petitioners statement of matters but
without repetition
3. Reasons why the petition should not be
given due course
Exceptions:
1. Unless the CA, law, or Rules,
provide otherwise
2. Also in civil cases decided under the
Rule on Summary Procedure; Stay
of judgment is not applicable here
since these are immediately
executory
SUBMISSION OF DECISION (Rule 42, Sec. 9)
If the petition is given due course
1. Case may be set for oral argument, or
2. The parties may be required to submit
memoranda within 15 days from notice
3. Case shall be deemed submitted for
decision upon filing of last pleading or
memoranda

DUE COURSE (Rule 42, Sec. 6)

If upon the filing of the comment or such other

pleadings as the court may allow or require, or
after the expiration of the period for the filing
thereof without such comment or pleading
having been submitted, the Court of Appeals
finds prima facie that the lower court has
committed an error of fact or law that will
warrant a reversal or modification of the
appealed decision, it may accordingly give due
course to the petition.

PERFECTION OF APPEAL (Rule 42, Sec. 8)

Appeal is deemed perfected as to PETITIONER

upon:
1. Timely filing of the petition
2. Payment of docket and lawful fees

Jurisdiction of the RTC

1. RTC loses jurisdiction upon:
a. Perfection of appeals filed in due
time; and
b. Expiration of the time to appeal of
other parties
2. RTC may exercise residual jurisdiction
before the CA gives due course to the
petition

General Rule: Perfected appeal stays the

challenged judgment or final order
104
APPEALS FROM QUASI-JUDICIAL
AGENCIES TO THE COURT OF
APPEALS (RULE 43)
SCOPE
Appeals from awards, judgments, final orders or
resolution of or authorized by any quasi-judicial
agency (QJA) in the exercise of its quasi-judicial
functions
A quasi-judicial agency or body is an organ of
government other than a court and other than a
legislature, which affects the rights of private
parties though either adjudication or rule-
making
NOTE: A party adversely affected by a decision
or ruling of the CTA en banc may file with the SC
a verified petition for review on certiorari via
Rule 45 (Sec. 12, RA 9282 and AM 07-7-12-SC)
The CTA is no longer a quasi-judicial agency
under RA 9282, as of April 7, 2004.
QJAs covered by Rule 43:
1. Civil Service Commission
2. Securities and Exchange Commission
3. Office of the President
4. Land Registration Authority
5. Social Security Commission
6. Civil Aeronautics Board
7. Bureau of Patents Trademarks and
Technology Transfer
8. National Electrification Administration
9. Energy Regulatory Board
10. National Telecommunications
Commission
11. Department of Agrarian Reform under
RA 6657
12. GSIS
13. Employees Compensation Commission
14. Agricultural Inventions Board
15. Insurance Commission
16. Philippine Atomic Energy Commission
17. Board of Investment
18. Construction Industry Arbitration
Commission, and
19. Voluntary arbitrators authorized by law
WHERE TO APPEAL (Rule 43, Sec. 3)
Appeal is taken to the CA on questions of fact, of
law, or mixed questions of fact and law.
PERIOD TO APPEAL (Rule 43, Sec. 4)
Period to appeal is 15 days from:
1. Notice of award, judgment, final order,
or resolution OR
2. Date of publication, if publication is
required by law for its effectivity, OR
3. Denial of petitioners MNT or MFR
Extension of Period: Additional 15 days only
1. Extension is granted upon motion for
extension and payment of full docket
fees, both within the reglementary
period
2. No further extension is allowed except
for the most compelling reasons and in
no case shall exceed 15 days
HOW APPEAL IS TAKEN (Rule 43, Sec. 5)
1. A verified petition for review is filed
with the CA following the Efficient Use of
Paper Rule
a. Attach proof of service of a copy to
the adverse party and to the court
or agency a quo
2. Upon filing, pay the docket and lawful
fees as well as a P500 deposit for costs
a. Payment is made to the CA clerk
b. Exemption from payment may be
granted by the CA by filing a
verified motion for exemption; if
denied, party must pay within 15
days from notice of denial
CONTENTS OF THE PETITION: (Rule 43, Sec. 6)
1. Statement of full names of parties to the
case without impleading court or
agencies
2. Concise statement of facts and issues
involved and grounds relied upon for
review
3. Accompanied by:
a. Clearly legible duplicate original or
a certified true copy of award,
judgment, final order, or resolution
appealed from
b. Certified true copies of such
material portions of record referred
to in the petition and other
supporting papers
4. Certificate of non-forum shopping
5. Statement of specific material dates
showing timeliness of appeal
EFFECT OF FAILURE TO COMPLY: Dismissal
(Rule 43, Sec. 7) for failure to comply with the
following:
1. Payment of docket and lawful fees
2. Deposit for costs
3. Proof of service of petition
105

4. Contents of petition 1. Require court or agency concerned to

5. Documents which should accompany transmit original or legible certified
the petition true copy of entire record of proceeding
under review
2. Require or permit subsequent
ACTION ON THE PETITION (Rule 43, Sec. 8) correction or addition to record

The CA may:
1. Require respondent to file Comment EFFECT OF APPEAL (Rule 43, Sec. 12)
within 10 days from notice
2. Dismiss the petition if CA finds the same General Rule: Appeal shall not stay the award,
to be: judgment, final order or resolution sought to be
a. Patently without merit reviewed
b. Prosecuted manifestly for delay, or
c. Questions raised are too Exception: When the CA shall direct otherwise
unsubstantial to require upon such terms as it may deem just
consideration

SUBMISSION FOR DECISION (Rule 43, Sec. 13)

FORM AND CONTENTS OF COMMENT (Rule
43, Sec. 9)
Form of comment:
1. Filed within 10 days from notice
following the Efficient Use of Paper Rule
2. Accompanied by the following
documents:
a. Clearly legible certified true copies
of such material portions of the
record referred to therein
b. And such other supporting
documents
3. Copy of Comment is served on
petitioner with proof of such service
filed with the CA
Contents of Comment: The comment shall:
1. Point insufficiencies or inaccuracies in
petitioners statement of facts and
issues
2. State reasons why petition should be
denied or dismissed
DUE COURSE (Rule 43, Sec. 10)
CA may give due course if CA finds prima facie
that court or agency has committed errors of
fact or law that would warrant reversal or
modification
If not, then the CA may dismiss the same.
TRANSMITTAL OF RECORDS (Rule 43, Sec. 11)
If petition is given due course, the CA may set
the case for oral argument or require parties to
submit memoranda within 15 days from notice.
Upon filing of last pleading or memorandum
required, case is deemed submitted for decision.
APPEAL FROM JUDGMENTS OR FINAL
ORDERS OF THE CTA
A party adversely affected by a decision or
ruling of the CTA en banc may file with the
Supreme Court a verified petition for review on
certiorari pursuant to Rule 45. (Sec. 19, RA 1125
as amended by RA 9282)
APPEAL FROM JUDGMENTS OR FINAL
ORDERS OF THE COMELEC
Unless otherwise provided by law, or by any
specific provisions in these Rules, any decision,
order or ruling of the Commission may be
brought to the Supreme Court on certiorari by
the aggrieved party within thirty (30) days from
its promulgation. (Rule 37, Sec. 1, COMELEC
Rules of Procedure)
Decisions in appeals from courts of general or
limited jurisdiction in election cases relating to
the elections, returns, and qualifications of
municipal and barangay officials are not
appealable. (Rule 37, Sec. 2, COMELEC Rules of
Procedure)

Within 15 days from notice that petition has Decisions in pre-proclamation cases and
been given due course, the CA may: petitions to deny due course to or cancel
certificates of candidacy, to declare a candidate
106

as nuisance candidate or to disqualify a
candidate, and to postpone or suspend elections
shall become final and executory after the lapse
of five (5) days from their promulgation, unless
restrained by the Supreme Court. (Rule 37, Sec.
3, COMELEC Rules of Procedure)
Appeals through a petition for review under this
Rule. Also, appeals from the Office of the
Ombudsman in administrative disciplinary cases
are now covered by this Rule. [Fabian v. Desierto
(1998)]

APPEAL FROM JUDGMENTS OR FINAL

ORDERS OF THE OMBUDSMAN

The following decisions are unappealable:

1. In administrative cases where
respondent is absolved of the charge
2. In case of conviction, where penalty
imposed is public censure or
reprimand, or suspension of not more
than one month or a fine equivalent to
one month salary (AO 7, Rule III, Sec. 7)

Jurisdiction of the CA
1. CA has jurisdiction over orders,
directives, and decisions of the Office of
Ombudsman in administrative
disciplinary cases only
2. It cannot review orders, directives,
decisions in criminal and non-
administrative cases

Jurisdiction of the SC
1. In criminal cases, ruling of Ombudsman
shall be elevated to the SC via Rule 65
2. In cases in which it is alleged that the
Ombudsman has acted with grave abuse
of discretion amounting to lack or
excess of jurisdiction, a special civil
action of certiorariunder Rule 65 may
be filed with this Court to set aside the
Ombudsmans order or resolution.
[Nava v. NBI (2005)]

APPEAL FROM JUDGMENTS OR FINAL

ORDERS OF THE NLRC

Rule 43, Sec. 2 states that Rule 42 shall not apply

to judgments or final orders issued under the
Labor Code.

The law no longer provides for an appeal from

decisions of the LA or from the NLRC. Mode of
review from said decisions is the special civil
action for Certiorari under Rule 65 in the CA.

NLRC judgments and final orders or resolutions

are now reviewable, in the first instance, by the
Court of Appeals on certiorari under Rule 65,
but those of the Employees Compensation
Commission should be brought to the Court of
107

APPEAL BY CERTIORARI TO THE

SUPREME COURT (RULE 45)
CERTIORARI AS A MODE OF APPEAL (RULE
45) AND CERTIORARI AS A SPECIAL CIVIL
ACTION (RULE 65)
A party desiring to appeal by certiorari from a
judgment, final order or resolution of the CA, the
Sandiganbayan, the CTA, the RTC or other
courts, whenever authorized by law, may file
with the Supreme Court a verified petition for
review on certiorari.

The petition may include an application for a

APPEAL BY CERTIORARI AS AN
writ of preliminary injunction or other
CERTIORARI ACTION
provisional remedies and shall raise only
Rule 45 Rule 65
questions of law, which must be distinctly set
Petition raises the
forth. The petitioner may seek the same
issue as to whether
Based on questions of provisional remedies by verified motion filed in
the lower court acted
law which appellant the same action or proceeding at any time
without or in excess of
desires the appellate during its pendency. (Rule 45, Sec. 1, as
jurisdiction or with
court to resolve amended by A.M. 07-7-12-SC)
grave abuse of
discretion
OUTLINE OF PROCEDURE
May be directed
against an
interlocutory order of RTC, Sandiganbayan, CTA en banc, or CA renders a decision
the court prior to
Involves review of
appeal from the
judgment, award or
judgment or where Any party files a petition for review on certiorari
final order on merits
there is no appeal or Within 15 days from notice
any other plain, of final judgment or order of lower court
speedy, or adequate or notice of denial of motion for reconsideration or new trial
remedy
May be filed not later
Must be made within than 60 days from Appellant serves copies of petition on adverse parties
the reglementary notice of judgment, And to the lower court,
period of appeal order or resolution And pay the corresponding docket fees
sought to be assailed
Does not stay the
challenged
Stays the judgment, proceedings SC may dismiss the petition or require appellee to comment
award, or order (unless a writ of
appealed from preliminary
injunction or TRO is If given due course, parties may submit memoranda
issued)
The parties are the
Petitioner and aggrieved party
respondent are against the lower SC may affirm, reverse, or modify judgment of lower court
original parties to the court or quasi-judicial
action agency as prevailing PROPRIETY OF RULE 45 AS A MODE OF
parties APPEAL
A filing of a MR is a
Prior filing of MR not condition precedent, Appeals to the SC Can be taken from a judgment
required subject to certain or final order or resolution of the CA,
exceptions Sandiganbayan, CTA en banc, RTC or such other
Higher court exercises courts as may be authorized by law
original jurisdiction
Appellate court is in
under its power of Only questions of law are allowed. Whether an
the exercise of
control and appeal involves only questions of law or both
appellate jurisdiction
supervision over questions of law and fact is best left to the
and power of review
proceedings of lower determination of an appellate court and not by
courts the court which rendered the decision appealed
from (PNB v. Romillo, etc., et al.)
108

QUESTIONS OF LAW QUESTIONS OF FACT

Doubt or difference as APPEAL FROM CA IS ALWAYS BY RULE 45
to the truth or
Doubt or controversy Appeal under Rule 45 is the proper review of
falsehood of facts, or
as to what the law is decisions of the CA even in special civil actions.
as to probative value
on certain facts
of the evidence
presented Any alleged errors committed by it in the
If the appellate court exercise of jurisdiction would be errors of
can determine the judgment which are reviewable by timely appeal
The determination and not by special civil action of certiorari.
issue without
involves evaluation or
reviewing or
review of evidence Rule 45 is clear that decisions, final orders, or
evaluating the
evidence resolutions of the CA in any case, regardless of
Query involves the the nature of the action or proceedings involved,
calibration of the may be appealed to the SC by filing a petition for
whole evidence review, which would but be a continuation of
considering mainly the appellate process over the original case.
the credibility of
Can involve questions CONCLUSIVENESS OF FINDINGS OF FACT
witnesses, existence,
of interpretation of
and relevancy of
law with respect to General Rule: The findings of fact of the CA are
specific surrounding
certain set of facts final and conclusive and cannot be reviewed on
circumstances and
relation to each other appeal to the SC
and the whole
probabilities of the Exceptions: CAs findings of fact may be
situation reviewed by the SC on appeal by certiorari
when:
The SC is not a trier of facts, and is not to review 1. Conclusion is a finding grounded
or calibrate the evidence on record. Moreover, entirely on speculations, surmises or
findings of facts of trial court, as affirmed on conjectures [Joaquin v. Navarro (1953)].
appeal by the CA, are conclusive on the court 2. Inference made is manifestly mistaken,
(Boston Bank of the Philippines v. Manalo) absurd or impossible [Luna v. Linatok
(1942)].
It has to be emphasized that it is not the duty of 3. There is grave abuse of discretion in the
the SC to review, evaluate, and weigh the appreciation of facts [Buyco v. People
probative value of the evidence adduced before (1954)].
the lower courts (Frondarina v. Malazarte) 4. Judgment is based on a
misapprehension of facts [De la Cruz v.
Sosing (1953).
APPEAL FROM RTC TO SC UNDER RULE 45 5. The Court of Appeals findings of fact
are conflicting [Casica v. Villaseca
To appeal under Rule 45, RTC must render (1957)].
judgment in the exercise of its original 6. The Court of Appeals, in making its
jurisdiction findings, went beyond the issues of the
case and the same is contrary to the
If the RTC is in exercise of its appellate admissions of both appellant and
jurisdiction, proper remedy is to appeal to the appellee [Nakpil & Sons v. CA (1986)].
CA via Rule 42 even if only questions of law are 7. The Court of Appeals manifestly
raised overlooked certain relevant facts not
disputed by the parties and which, if
If the other party had already taken an appeal to properly considered, would justify a
the CA to question the RTC decision, the different conclusion [Abellana v. Dosdos
property remedy of petitioner is simply (1965)].
ordinary appeal to the CA as well (First Phil. 8. The Court of Appeals findings of fact
International Bank v. CA). are contrary to those of the trial court,
or are mere conclusions without
Grave abuse of discretion is not an allowable citation of specific evidence, or where
ground under Rule 45 (Martires v. CA). the facts set forth by the petitioner are
109
not disputed by the respondent, or
where the findings of fact of the Court of
Appeals are premised on absence of
evidence but are contradicted by the
evidence of record [Manlapaz v. CA
(1987)].
PERIOD OF APPEAL: (Rule 45, Sec. 2)
Time for Filing: 15 days from
1. Notice of judgment, final order, or
resolution appealed from, or
2. Notice of denial of motion for new trial
or reconsideration filed in due time
after notice of judgment
The Neypes doctrine is also applicable in
Rule 45.
Extension of Period: 30 days upon
1. Motion duly filed and served; and
2. Payment of docket and lawful fees and
deposit for costs
3. And for justifiable reasons
FORM OF PETITION
1. The petition must be VERIFIED
2. Following the Efficient Use of Paper
Rule:
a. One original, properly marked, and
4 copies
b. If the case is referred to En Banc, 10
additional copies is filed
3. Payment of docket and other lawful
fees and deposit of P500 for costs is
made with the SC Clerk at the time of
filing
4. Proof of service of the petition to the
lower court and adverse party are
attached
CONTENTS OF PETITION (Rule 45, Sec. 4)
1. State full names of the parties
a. Appealing party = as Petitioner
b. Adverse party = as Respondent
c. Do not implead lower courts or
judges
2. Indicate material dates showing:
a. When notice of judgment or final
order or resolution was received
b. When a motion for new trial or
reconsideration, if any, was filed
and when a denial thereof was
received
3. Concise statement of:
a. The matters involved
b. Reasons or arguments relied on
4. Accompanied by a clearly legible
duplicate original, or a certified true
copy of the judgment or final order or
resolution certified by the clerk of court
and court a quo
5. Certificate of non-forum shopping
GROUNDS FOR DENIAL OF PETITION (Rule 45,
Sec. 5)
1. Failure of petitioner to comply with:
a. Payment of docket or other lawful
fees
b. Deposit for costs
c. Proof of Service; and
d. Contents of and documents which
would accompany the petition
2. Appeal is without merit
3. Is prosecuted manifestly for delay
4. That the questions raised are so
unsubstantial as to require
consideration
NOTE: SC may dismiss the petition motu proprio
REVIEW IS DISCRETIONARY (Rule 45, Sec. 6)
Appeal to the SC is NOT a matter of right. It will
be granted only when there are special and
important reasons therefor.
Some indications of the character of reasons
which will be considered:
1. When the court a quo has decided the
question of substance, not theretofore
determined by the SC, or has decided it
in a way probably not in accord with
law or with the applicable provisions of
the SC; or
2. Court a quo has so far departed from
accepted and usual course of judicial
proceedings, or so far sanctioned such
departure by a lower court, as to call for
an exercise of power of supervision
ELEVATION OF RECORDS: (Rule 45, Sec. 8)
If the petition is given due course, the Supreme
Court may require the elevation of the complete
record of the case or specified parts thereof
within fifteen (15) days from notice
110

GROUNDS FOR DISMISSAL OF APPEAL 4. Failure to comply with requirements on

proof of service, contents, and
DISMISSAL BY THE CA (RULE 50) documents accompanying petition
5. Failure to comply with circular,
An appeal may be dismissed by the CA, on its directive, or order of SC without
own motion, or on that of the appellee on certain justifiable cause
grounds. 6. Error in choice of mode of appeal
7. The case is not appealable to the SC
Grounds for Dismissal as provided in Sec. 1, Rule
50
1. Failure of record on appeal to show on
its face that appeal was taken within the
period fixed by Rules
2. Failure to file notice of appeal or record
on appeal within prescribed period
3. Failure of appellant to pay docket and
other lawful fees as provided in Sec. 4,
Rule 41
4. Unauthorized alterations, omissions, or
additions in approved record on appeal
as provided in Sec. 4, Rule 44
5. Failure of appellant to serve and file
required number of copies of his brief
or memorandum within time provided
by Rules
6. Absence of specific assignment of errors
in the appellants brief, or of page
references to record as required in Sec.
13, (a), (c), (d), (f), Rule 44
7. Failure of appellant to take necessary
steps for correction or completion of
record within time limited by the court
in its order
8. Failure of appellant to appear at
preliminary conference under Rule 48
or comply with orders, circulars,
directives of the court without
justifiable cause
9. Fact that the order or judgment
appealed from is not appealable

Other Grounds
1. By agreement of the parties (i.e.
amicable settlement)
2. Where appealed case has become moot
or academic
3. Where appeal is frivolous or dilatory

DISMISSAL BY THE SC (RULE 56)

The appeal may be dismissed motu proprio or on

motion of the respondent on the following
grounds:
1. Failure to appeal within reglementary
period
2. Lack of merit of petition
3. Failure to pay docket and lawful fees
and deposit
111

COMPARATIVE TABLE ON THE MODES OF APPEAL

WHEN PROPER
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
ORDINARY APPEAL PETITIONS FOR REVIEW
Matter of Right; Filed with the court of origin Discretionary; No records are elevated unless the court decrees it
All records are elevated from court of origin Filed with the appellate court
Appeal from a decision of the Appeals to the SC from a
Appeal from a judgment or final
RTC in the exercise of its original judgment or final order or
order of a MTC
jurisdiction resolution of the CA,
Sandiganbayan, CTA en banc,
Appeals from awards, judgments, RTC (original jurisdiction) or
Appeal from a decision of the final orders or resolution of or such other courts as may be
RTC rendered in the exercise of authorized by any quasi-judicial authorized by law
Rule 41 provisions shall apply to Rule 40 if not consistent with Rule its appellate jurisdiction agency in the exercise of its Decisions, final orders, or
40 provisions quasi-judicial functions resolutions of the CA in any case,
regardless of the nature of the
action or proceedings involved,
may be appealed to the SC by
filing a petition for review,
WHERE TO FILE
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
Filed with the MTC Filed with the RTC Filed with the CA Filed with the CA Filed with the SC
Appeal to the RTC Appeal to the CA Appeal to the CA Appeal to the CA Appeal to the SC
Questions of fact or mixed Questions of fact, Questions of
Questions of fact or mixed Questions of fact, Questions of
questions of fact and law law, or Mixed questions of fact Only Questions of Law
questions of fact and law law, or Mixed questions of both
and law
TIME FOR FILING
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
Within 15 days from:
Within 15 days from:
1. Notice of award,
1. Notice of judgment,
judgment, final order,
BY NOTICE OF APPEAL Within 15 days from notice of final order, or
or resolution OR
Within 15 days after notice of judgment or final order decision, or resolution appealed
2. Date of publication, if
Within 15 days from notice of from, or
publication is required
BY RECORD ON APPEAL denial of petitioners motion for 2. Notice of denial of
by law for its effectivity,
Within 30 days from notice of judgment or final order by filing a new trial or reconsideration motion for new trial or
OR
notice of appeal and a record on appeal reconsideration filed in
3. Denial of petitioners
due time after notice of
MNT or MR (only one
judgment
MR allowed)
112
113

RELIEF FROM JUDGMENTS, ORDERS,
AND OTHER PROCEEDINGS (RULE 38)
CONCEPT
Remedies AFTER finality of judgment
1. Petition for relief (Rule 38)
2. Action to Annul Judgment (Rule 47)
3. Collateral Attack of a Judgment that is
Void on its Face
A party who has filed a timely motion for new
trial or motion for reconsideration can no longer
file a petition for relief from judgment after his
motion has been denied. These remedies are
mutually exclusive. It is only in appropriate
cases where a party aggrieved by the judgment
has not been able to file a motion for new trial or
motion for reconsideration that a petition for
relief can be filed. (Francisco v. Puno, 1981)

A petition for relief from judgment together with WHEN PROPER

a motion for new trial and a motion for
reconsideration are remedies available only to Rule 38 can be availed of once the judgment has
parties in the proceedings where the assailed become final and executory.
judgment is rendered. In fact, it has been held
that a person who was never a party to the case, The relief provided for by Rule 38 is of equitable
or even summoned to appear therein, cannot character and is only allowed in exceptional
avail of a petition for relief from judgment cases, that is where there is no other available
(Alaban v. Cam) or adequate remedy. A petition for relief is not
regarded with favor and judgment will not be
NOTE: This is not applicable to the SC since it is disturbed where the party complaining has or
not a trier of facts. by his exercising proper diligence would have
had an adequate remedy at law, as where
RULE 37 v. RULE 38 petitioner could have proceeded by appeal to
vacate or modify the default judgment. [Manila
Electric v. CA (1990)]
RULE 37 RULE 38
Available BEFORE Available AFTER
Under Sec. 1, it is also available when any other
judgment becomes judgment has become
proceeding is thereafter taken against the
final and executory final and executory
petitioner in any court through FAME
Applies to judgments,
Applies to judgments
final orders and other
or final orders only Thus, it was held that a petition for relief is also
proceedings
applicable to a proceeding taken after entry of
Grounds: (1) FAME
judgment or final order such as an order of
and (2) Newly Ground: FAME
execution (Cayetano v. Ceguerra) or an order
discovered evidence
dismissing an appeal (Medran v. CA)
Filed within 60 days
from knowledge of
Filed within the time
judgment and within 6 WHERE FILED
to appeal
months from entry of
judgment Rule 38 is not an independent action but a
If denied, order continuation of the old case. Hence, it is filed
If denied, order of
denying a petition for with the same court and same branch which
denial is not
relief is not decided the case.
appealable; hence,
appealable; remedy is
remedy is appeal
appropriate civil
from judgment
action under Rule 65 GROUNDS: (Rule 38, Sec. 1 and 2)
Legal remedy Equitable remedy 1. When judgment or final order is
Motion need not be Petition must be entered or any other proceeding is
verified verified thereafter taken against petitioner
through FAME
Rule 37 and Rule 38 are EXCLUSIVE remedies. 2. When petitioner has been prevented
from taking an appeal by FAME
A party who has filed a timely motion for new
trial and/or reconsideration cannot file a
petition for relief after his motion has been PERIOD FOR FILING: (Rule 38, Sec. 3)
denied.
114

1. Within 60 days after petitioner learns of
the judgment, final order, or other
proceeding to be set aside; AND
2. Not more than 6 months after such
judgment or final order was entered, or
such proceeding was taken
adverse party to answer within 15 days from
receipt thereof.
PROCEEDINGS AFTER ANSWER IS FILED (Rule
38, Sec. 6)

The two periods for the filing of a petition for
relief are not extendible and never interrupted.
Both periods must be complied with. (Phil.
Rabbit Bus Lines Inc. v. Ariaga)
Reckoning points:
1. The 60-day period is reckoned from the
time the party acquired knowledge of
the order, judgment or proceeding. Not
from the date he actually read the same
(Perez v. Araneta)
2. 6-months period is computed from the
date of entry of the order or judgment
FORM AND CONTENTS OF THE PETITION
1. The petition for relief must be verified
2. The petition must be accompanied by
an affidavit showing the FAME relied
upon; and
3. The affidavit of merit accompanying the
petition must also show the facts
constituting the petitioners good and
substantial cause of action or defense as
the case may be
After filing of answer or expiration of the period
therefor, court shall hear the petition.
If the court finds that the allegations are not true
Petition is dismissed.
If the court finds that allegations are true:
1. It shall set aside the judgment, final
order, or other proceeding complained
of upon such terms as may be just
2. Thereafter, case shall stand as if such
had never been rendered, issued, or
taken
3. The court shall then proceed to hear
and determine the case as if timely
motion for new trial or reconsideration
has been granted by it
REMEDY FOR DENIAL OF PETITION FOR
RELIEF.
Appeal from an order denying a petition for
relief is no longer available under the present
rules.

The absence of an affidavit of merits is a fatal The remedy against a denial of a petition for
defect and warrant denial of the petition relief is certiorari under Rule 65, when proper.
(Fernandez v. Tan Tiong Tick)

However, it is not a fatal defect so long as the

facts required to be set out also appear in the
verified petition (Fabar Inc. v. Rodelas)

When Affidavit of Merit is not necessary:

1. When there is lack of jurisdiction over
the defendant;
2. When there is lack of jurisdiction over
the subject matter;
3. When judgment was taken by default;
4. When judgment was entered by mistake
or was obtained by fraud; or
5. Other similar cases.

ORDER TO FILE ANSWER (Rule 38, Sec. 4)

An order to answer shall issue only if petition is

sufficient in form and substance.

If petition is sufficient in form and in substance,

the court shall issue an order requiring the
115

ANNULMENT OF JUDGMENTS OR entertain the petition action

FINAL ORDERS AND RESOLUTIONS
(RULE 47)
WHO CAN FILE
Annulment of Judgment is a remedy in law
Petitioner need not be a party to the judgment
independent of the case where the judgment
sought to annulled.
sought to be annulled was rendered and may be
availed of though the judgment has been
A person who is not a party to the judgment may
executed.
sue for its annulment provided that he can prove
the same was obtained through fraud or
NATURE
collusion and that he would be adversely
affected thereby. (Alaban v. CA)
The purpose of such action is to have the final
and executory judgment set aside so that there
GROUNDS (Rule 47, Sec. 2)
will be a renewal of litigation.
Annulment may be based only on TWO grounds:
Resorted to in cases where ordinary remedies of
1. Extrinsic Fraud
new trial, appeal, petition for relief, or other
2. Lack of Jurisdiction
appropriate remedies are no longer available
through no fault of petitioner
Although Sec. 2 provides that annulment of
judgment or order may be based only on
It is not a mode of appeal but an Independent
extrinsic fraud and lack of jurisdiction,
Civil Action.
jurisprudence recognizes DENIAL OF DUE
PROCESS as an additional ground (Sps. Benatiro,
et al. v. Heirs of Cuyos et al.) This was recognized
WHEN PROPER (Rule 47, Sec. 1)
in the 2013 case of Leticia Diona, represented by
her Attorney-in-fact, Marcelina Diona v. Romeo
It is available when the petitioner failed to move
Balangue, Sonny Balangue, Reynaldo Balangue,
for new trial in, or appeal from, or file a petition
and Esteban Balangue, Jr.
for relief against, or take other appropriate
remedies assailing the questioned judgment or
Extrinsic or Collateral Fraud - Refers to any
final order or resolution through no fault
fraudulent act of the prevailing party in the
attributable to him
litigation which is committed outside of the trial
of the case, whereby the defeated party has been
The remedy may no longer be invoked where
prevented from exhibiting fully and fairly
the party has availed himself of the remedy of
presenting his side of the case
new trial, appeal, petition for relief, or other
appropriate remedy and lost or where he has
Lack of Jurisdiction - Lack of jurisdiction refers
failed to avail himself of those remedies through
to either lack of jurisdiction over the person of
his fault or negligence
the defending party or over the subject matter of
the claim, and in either case, the judgment or
final order and resolution are void.
WHERE FILED
NOTE: In a petition for annulment of
JUDGMENTS, FINAL JUDGMENTS, FINAL
judgment based on lack of jurisdiction,
ORDERS, OR ORDERS, OR
petitioner must show an ABSOLUTE
RESOLUTIONS OF RESOLUTIONS OF
LACK of jurisdiction not merely abuse of
THE RTC THE MTC
jurisdictional discretion.
Filed with the CA Filed with the RTC
CA has exclusive and As to Evidence
RTC as a court of
original jurisdiction 1. When the ground invoked is extrinsic
general jurisdiction
over said action fraud, extraneous evidence is admitted
under Sec. 19(6) BP
under Sec. 9 (2) of BP 2. However, when the ground is lack of
129
129 jurisdiction, only evidence found in the
The CA may dismiss The RTC has no such records of the case can justify nullity of
the case outright; it discretion, it is judgment
has the discretion on required to consider it
whether or not to as an ordinary civil
116

PERIOD FOR FILING (Rule 47, Sec. 3)

EFFECT OF JUDGMENT OF ANNULMENT (Rule
EXTRINSIC LACK OF 47, Sec. 7)
FRAUD JURISDICTION
PERIOD 4 years from Before it is Effect of annulment based on lack of jurisdiction
OF discovery of barred by laches 1. The same shall be set aside and
FILING fraud or estoppel considered null and void
2. Aggrieved party may refile the action in
There must be a manifest showing with petition the proper court
that it was filed within the 4-yr period. a. This may involve a different court
of competent jurisdiction
The rule does not fix the period to annul b. But where the reason for such
judgment based on lack of jurisdiction but annulment was because of lack of
recognizes the principle of estoppel as first laid jurisdiction over defendant, the
down by Tijam v. Sibonghanoy. action may be refilled in the same
original court provided it has
proper jurisdiction and venue
FORM AND CONTENTS OF PETITION (Rule 47,
Sec. 3) Effect of annulment based on extrinsic fraud
1. Verified petition, alleging therein: 1. The same shall be set aside and
a. With particularity, the facts and the considered null and void
law relied upon 2. On motion of the prevailing party on
b. Petitioners good and substantial justifiable grounds, he may be allowed
cause of action or defense to no longer refile the action
2. Filed following the Efficient Use of Paper a. The trial court which rendered the
Rule questioned judgment shall be
3. Certified true copy of the judgment or ordered to try the case anew
final order or resolution shall be
attached to the original copy of the The prescriptive period for the refiling of the
petition aforesaid original action shall be deemed
4. Affidavits of witnesses or documents suspended from the filing of said original action
supporting the cause of action or until the finality of the judgment of
defense; and annulment. However, the prescriptive period
5. Certificate of non-forum shopping shall not be suspended where the extrinsic fraud
is attributable to the plaintiff in the original
action. (Rule 47, Sec. 8)
PROCEEDINGS

There are two stages in the disposition of the

petition:
1. A preliminary evaluation of the petition
for prima facie merit (Sec. 5)
The rule allows the CA to dismiss
the petition outright as in special
civil actions
If prima facie merit is found,
petition is given due course and
summons is served on respondent

2. If prima facie merit is found, petition is

given due course and issuance of
summons as in ordinary civil cases is
made (Sec. 6)
Procedure in ordinary civil cases is
observed

NOTE: Prima facie determination is not available

in annulment of judgments or final orders of
MTCs before the RTC. (Rule 47, Sec. 10)
117
COLLATERAL ATTACK OF
JUDGMENTS
ON ATTACKING THE VALIDITY OF A (2007)]
JUDGMENT
Direct Attack v. Collateral Attack:
1. Direct attack upon a judgment is an
action or proceeding to annul it, this
being the main object of the proceeding
2. Collateral attack upon a judgment is one
made to obtain relief other than the
setting aside of the judgment, the attack
on the judgment itself being incidental
When Collateral Attack Proper: This is proper
only when the judgment on its face is null and
void as where it is patent that the court which
rendered said judgment has no jurisdiction
The validity of a judgment or order of the court,
which has become final and executory, may be
attacked in three ways:
1. Only by a direct action or proceeding to
annul the same
This proceeding is a direct attack
against the order of judgment
because it is not incidental to, but is
the main object of, the proceeding
A direct action to annul and enjoin
enforcement of the judgment where
the alleged defect is not apparent
on its face or from the recitals
contained in the judgment
See Rule 47
2. Or by direct action, as certiorari, or by
collateral attack in case of apparent
nullity
The collateral attack must be
against a challenged judgment
which is void upon its face or that
the nullity of the judgment is
apparent from its own recitals
3. Or by a Petition for Relief under Rule 38
This third manner of attacking must
be taken in the same action or
proceeding in which the judgment
or order was entered
VOID JUDGMENT
A void judgment is no judgment at all. It cannot
be the source of any right nor the creator of any
obligation. All acts performed pursuant to it and
all claims emanating from it have no legal
effect. Hence, it can never become final and any
writ of execution based on it is void. [Polystyrene
Manufacturing v. Privatization Management
A void judgment may be likened to a lawless
thing which can be treated as an outlaw and
slain at sight, or ignored wherever and
whenever it rears its head. [Banco Espanol-
Filipino v. Palanca (1918)]
A judgment may be void for lack of due process
of law. [Spouses Benatiro v. Heirs of Cuyos
(2008))
ATTACKING A VOID JUDGMENT
It may be assailed anytime, collaterally or in a
direct action or by resisting such judgment or
final order in any action or proceeding
whenever it is invoked, unless barred by laches.
[Spouses Benatiro v. Heirs of Cuyos (2008))
REMEDIES
If the reglementary period for appeal has not yet
lapsed, some remedies are New Trial and
Reconsideration. Appeal, Petition for Relief, and
Other Appropriate Remedies such as Certiorari
may also be used.
If the appropriate remedies are no longer
available without the fault of the petitioner, the
equitable and extraordinary remedy of Petition
for Annulment of Judgment may be resorted to.
When all else fails, there is jurisprudence to the
effect that a patently void judgment may be
dealt with by a Main Action for Injunction. [See
Barrameda v. Moir (1913)]
JURISPRUDENTIAL BASIS
Remedial Law Jurisprudence such as Spouses
Benatiro v. Heirs of Cuyos, (2008) and Agustin v.
Bacalan, (1985) on the matter of void judgment
particularly refer to Rule 47 as a remedy against
a void judgment. This remedy, however, should
be availed of only when the appropriate
remedies are no longer available without fault
on the part of the petitioner.
Although Section 2 of Rule 47 of the Rules of
Court provides that annulment of a final
judgment or order of an RTC may be based "only
118
on the grounds of extrinsic fraud and lack of
jurisdiction," jurisprudence recognizes denial of
due process as additional ground therefore
(Spouses Benatiro Case).
A void judgment is like an outlaw which may be
slain at sight wherever or whenever it exhibits its
head. The proper remedy in such case, after the
time for appeal or review has passed, is for the
aggrieved party to bring an action to enjoin the
judgment. (Montinola v. Judge Gonzales, 1989)
EXECUTION,
SATISFACTION,
AND EFFECT OF
JUDGMENTS
DIFFERENCE BETWEEN FINALITY OF
JUDGMENT FOR PURPOSES OF
APPEAL; FOR PURPOSES OF
EXECUTION
The term finality of judgment for purposes of
appeal refers to interlocutory orders which:
1. Are not decisions within the
constitutional definition [Armargo v. CA
(1973)]
2. are those that determine incidental
matters that do not touch on the merits
of the case or put an end to proceedings.
The following are examples of an
interlocutory order:
a. An order denying a motion to
dismiss;
b. An order granting an extension of
time to file a pleading, or one
authorizing an amendment thereof;
c. Order granting or denying
applications for postponement or
inspection of documents. [Riano]
The word interlocutory refers to something
intervening between the commencement and
the end of a suit which decides some point or
matter but is not a final decision of the whole
controversy. [Ramiscal, Jr. v. Sandiganbayan
(2004)]
A final judgment or order is one that finally
disposes of a case, leaving nothing more to be
done by the Court in respect thereto, e.g., an
Assuming the judgment to have been void as
alleged by the proponent of this motion, the
proper remedy was by an original proceeding
and not by motion in the cause" [Banco Espanol
v. Palanca (1918)]. A final judgment may be
annulled on the ground of lack of jurisdiction,
fraud, or that it is contrary to law. [Panlilio v.
Garcia (1982)]
adjudication on the merits which, on the basis of
the evidence presented at the trial, declares
categorically what the rights and obligations of
the parties are and which party is in the right; or
a judgment or order that dismisses an action on
the ground, for instance, of res judicata or
prescription.
Once rendered, the task of the Court is ended, as
far as deciding the controversy or determining
the rights and liabilities of the litigants is
concerned. Nothing more remains to be done by
the Court except to await the parties' next move
(which among others, may consist of the filing of
a motion for new trial or reconsideration, or the
taking of an appeal) and ultimately, of course, to
cause the execution of the judgment once it
becomes 'final or, to use the established and
more distinctive term, 'final and executory.
Execution is a matter of right upon the
expiration of the period to appeal and no appeal
was perfected from a judgment or order that
disposes of the action or proceeding. [Rule 39,
Sec. 1]
It can be noted that the Supreme Court made a
hairline distinction between finality of order for
appeals and for execution. It is submitted that
upon courts issuance of a judgment touching
upon the merits of a case, it is final for the
purposes of an appeal, but NOT for execution.
NOTE: Finality for the purposes of execution
refers to the expiration of the period to appeal
and no appeal was perfected.
WHEN EXECUTION SHALL ISSUE
Execution is a process provided by law for the
enforcement of a final judgment. Enforcement is
part of courts jurisdiction. It is not an action but
is included in the phrase Process in an action
part of the proceedings considered as still
pending.
119

Cases where Execution may Issue even if
judgment NOT Final:
1. Support pendente lite
2. Judgments of inferior courts in
ejectment cases
3. Execution pending appeal
4. Injunction, accounting, receivership,
support (Rule 39, Sec. 4)
5. Decision of the RTC in appealed civil
cases under Summary Procedure,
including forcible entry and unlawful
detainer
6. Decision of the LA reinstating dismissed
employee, insofar as reinstatement
aspect is concerned
d. Where the remedy of a person not a
party to the case which he did not
avail of, was to intervene in the case
in question involving rights over
the same parcel of land and said
person in another case was
adjudged buyer in bad faith thereof
(Lising v. Plan)
e. In an ejectment case, where 3rd
party derived his right of
possession from defendant
particularly when such right was
acquired only after filing of
ejectment suit (Cordova v. Tornilla)

Writ of Execution: A judicial writ issued to an EXECUTION AS A MATTER OF RIGHT (Rule 39,
officer authorizing him to execute the judgment Sec. 1)
of the court.
The finality of judgment has the effect of
Dispositive Portion as Subject of Execution entitling prevailing party to execution as a
1. General Rule: The dispositive portion of matter of right. It is the ministerial duty of the
the decision is that part that becomes court to do execution. (Herrera)
the subject of execution
2. Exceptions: Execution as a matter of right, TWO INSTANCES:
a. Where there is ambiguity, the body 1. No appeal has been perfected or period
of the opinion may be referred to of appeal has expired
for purposes of construing the 2. Appeal has been perfected and finally
judgment because the dispositive resolved
part of a decision must find support
from decisions ratio decidendi How Done:
b. Where extensive and explicit
discussion and settlement of the CASE HOW EXECUTION IS CARRIED
issue is found in the body of the If no appeal has Prevailing party applies by
decision been perfected, motion for a writ of execution
or the period of which is granted by the judge
Two Whom Issued: appeal has since it is a matter of right
1. General Rule: Only real parties in expired
interest in an action are bound by Prevailing party:
judgment rendered therein and by the 1. Files a motion in the
writs of execution court of origin,
2. Exceptions: There are certain cases 2. Submitting certified
where the writ may be issued against true copies of the
non-parties judgment or final
a. One who is privy to judgment orders sought to be
debtor can be reached by an order enforced
of execution and writ of demolition If appeal has
3. Submitting the entry
(Vda. De Medina v. Cruz) been perfected
thereof,
b. Issued against one who not being and finally
4. With notice to
originally a party to the case resolved
adverse party
submits his interest to the court for Appellate court may also
consideration in the same case and direct the court of origin to
invites adjudication regarding said issue the writ of execution:
interest (Jose v. Blue) 1. Upon motion in the
c. Where non-parties voluntarily same case AND
signed the compromise agreement 2. When the interest of
or voluntarily appeared before justice so requires
court (Rodriguez v. Alikpala)
120
General Rule: It is a matter of right on the part of
the winning party when the judgment or order
becomes executory. The court cannot refuse
execution.
Exceptions: The issuance of a writ of execution
which issues as a matter of right can be
countered in any of the following cases
1. ):
2. When a PETITION FOR RELIEF or an
action to enjoin judgment is filed and a
preliminary injunction is prayed for and
granted (Rule 38, Sec. 5);
3. When the judgment turns out to be
INCOMPLETE OR IS CONDITIONAL
since as a matter of law, such judgment
CANNOT BE FINAL;
4. When the judgment has been NOVATED
BY THE PARTIES
5. When SUBSEQUENT FACTS AND
CIRCUMSTANCES transpire as to render
such execution unjust or impossible
6. On EQUITABLE GROUNDS as when
there has been a change in the situation
of the parties which makes execution
INEQUITABLE.
7. When the judgment becomes
DORMANT, the 5-year period under
Rule 39.6 having expired without the
judgment having been revived
NOTE: Execution may only issue upon motion
with notice of hearing.
Supervening Event Doctrine A supervening
event can be invoked for the modification or
alteration of a final judgment. This refers to:
1. Facts which transpire after judgment
has become final and executory. Or
2. New circumstances which developed
after the judgment has acquired finality
3. Matters which the parties were not
aware of prior to or during the trial as
they were not yet in existence at that
time
4. The supervening facts or circumstances
must either bear a direct effect upon the
matters already litigated and settled or
create a substantial change in the rights
or relations of the parties therein which
render execution of the final judgment
unjust or impossible (Lim v. Jabalde)
DISCRETIONARY EXECUTION (Rule 39, Sec. 2)
DISCRETIONARY EXECUTION AS A
EXECUTION MATTER OF RIGHT
May issue before the Period to appeal has
lapse of period to already lapsed and
appeal, and even no appeal is
during appeal perfected
Ministerial duty of
Discretionary upon the
the court
court
Provided there are
Upon showing of good
no supervening
reason for execution
events
Under the Rule on Discretionary Execution (also
called execution pending appeal), the court
rendering the judgment, if it still has
jurisdiction, may exercise discretion and order
execution pending appeal.
It is the execution of a judgment or final order
before it attains finality. The court which
rendered the decision can grant an execution
pending appeal if it still retains jurisdiction over
the case and is in possession of the records at
the time of the filing of the motion; otherwise,
the motion shall be acted upon by the appellate
court.
To be valid, there should be a good reason to
justify the execution of the judgment pending
appeal, the same to be stated in the order
granting it.
Discretionary Execution is NOT applicable in the
case of the Court of Appeals:
1. The Rule on Discretionary Execution
contemplates a situation where a
judgment or final order rendered in the
exercise of its original jurisdiction and
the prevailing party in said decision
seeks immediate execution during the
pendency of an appeal.
2. The CA has no authority to issue
IMMEDIATE EXECUTION PENDING
APPEAL OF ITS OWN DECISIONS
THEREIN.
3. Discretionary execution is allowed
pending appeal of judgment or final
order of the trial court upon good
reasons to be stated in a special order.
A judgment of the CA cannot be executed
pending appeal. (Heirs of Justice JBL Reyes v. CA,
2000)
When Proper and How Done
1. Execution pending appeal The
duration of the courts discretionary
power to order execution pending
appeal depends on:
121

a. Where the record on appeal is during the pendency of the appeal

required, (Yasuda v. CA)
(1) The court loses jurisdiction 2. The award of actual damages is for an
only over the subject matter amount fixed and certain (Radio
thereof upon approval of the Communications Inc. v. Lantin). But not
record on appeal and an award for moral and exemplary
expiration of the time to appeal damages
of the other party 3. Insolvency of a defeated party
(Hacienda Navarro v. Labrador)
b. Where no record on appeal is 4. The prevailing party is of advanced age
required, court may issue writ of and in a precarious state of health and
execution before perfection of the obligation in the judgment is non-
appeal transmissible, being for support (De
Leon v. Soriano)
c. If the court lost jurisdiction, the 5. Where defendants were exhausting
writ may be issued by the appellate their income and have no other
court, as such: property aside from proceeds of the
property subject in litigation (Lao v.
HOW EXECUTION IS Mencias)
CASE
CARRIED
If the trial court Prevailing party:
still has 1. Files a motion with The Supersedeas Bond
jurisdiction over notice to the
the case and is adverse party Discretionary execution may be stayed upon
still in possession 2. Motion is filed with approval by the proper court of a sufficient
of either the the TRIAL court supersedeas bond filed by the party against
original record or 3. Good reasons must whom it is directed.
record on appeal be shown 1. It is conditioned upon the performance
The prevailing party: of the judgment or order allowed to be
1. Files a motion with executed in case it shall be finally
notice to adverse sustained in whole or in part
If the trial court party 2. Bond may be proceeded against on
has lost 2. Motion is filed with motion with notice to surety
jurisdiction the APPELLATE
COURT General Rule: The filing of a supersedeas bond is
3. Good reasons must sufficient to stay the enforcement of a
be shown discretionary execution.

2. Execution of several, separate, or partial Exception: However, THE FILING OF

judgments may also be executed under
the same terms and conditions as
execution pending appeal.
Requisites for Discretionary Execution:
1. There must be a motion filed by
prevailing party with notice to adverse
party
2. There must be a hearing of the motion
for discretionary execution
3. There must be good reasons to justify
the discretionary execution
4. These good reasons must be stated in a
special order after due hearing
Examples of Good Reasons:
1. Where the goods subject of the
judgment stand to perish or deteriorate
SUPERSEDEAS BOND does not entitle the
judgment debtor to the suspension of execution
as a MATTER OF RIGHT. Where the needs of the
prevailing party are URGENT, the Court can
order immediate execution despite such
SUPERSEDEAS BOND. [Regalado]
If judgment is reversed totally or partially, or
annulled The trial court may, on motion, issue
such orders of restitution or reparation of
damages as equity and justice may warrant
under the circumstances
Remedy against Execution pending Appeal The
remedy is certiorari by Rule 65. The appeal
could not be an adequate remedy for such
premature execution. (Jaca v. Davao Lumber Co.)
122

HOW JUDGMENT IS EXECUTED or personal property described

EXECUTION BY MOTION OR BY Then apply proceeds

INDEPENDENT ACTION (Rule 39, Sec. 6) in conformity with
judgment
Modes of Enforcement of Execution:
To deliver possession
MODE WHEN ENFORCED of the same,
Within 5 years from date of describing it, to the
By Motion party entitled thereto
entry of judgment
After the lapse of 5 years from
By date of entry and before it is Then to satisfy any
Independent barred by statute of limitations costs, damages, rents,
If it be for delivery or
Action which is 10 years from date of or profits covered by
possession of real or
entry (Art. 1144(3)) the judgment
personal property

NOTE: The revived judgment may be enforced Out of the personal

by motion within 5 years from date of its entry property of obligor
and thereafter by action before it is barred by
statute of limitations. In case of
insufficiency, then out
Once the judgment is revived, the 10-year of real property
prescriptive period commences to run from the
date of finality of the REVIVED JUDGMENT and Remedies Against a Writ of Execution
not the original judgment.
1. If there is a defect in the writ, file a
motion to quash the writ of execution
ISSUANCE AND CONTENTS OF A WRIT OF a. Quashal is proper when:
EXECUTION (Rule 39, Sec. 8) (1) A change in the situation of the
parties renders execution
Contents of the Writ of Execution inequitable
1. Issued in the name of the Republic from (2) Issued against wrong party
the court which granted the motion (3) Issued without authority
2. States the name of the court, case (4) Improvidently issued
number and title, dispositive part of (5) Defective in substance
judgment or order (6) Judgment already satisfied; and
3. Requiring the sheriff or other proper (7) The controversy was never
officer to whom it is directed to enforce submitted to the court
the writ according to its terms (8) Where the writ varies the
4. In all cases, it shall also specifically state terms of the judgment
the amount of interest, cost, damages, (9) It is sought to be enforced
rents, or profits due as well as the against property exempt from
principal obligation execution
(10) Where there is
Manner of Execution ambiguity in the terms of the
judgment
To satisfy judgment
If it be against property plus interest out of his b. If motion to quash is denied, appeal
of judgment obligor real or personal from said denial
property
If it be against real or 2. An order granting the issuance of the
personal property in writ is not appealable, except where:
the hands of personal To satisfy judgment a. The order varies the terms of the
representatives, heirs, with interest out of judgment, or
devisees, legatees, such b. Where, being vague, the court
tenants, or trustees of renders what is believed to be a
judgment obligor wrong interpretation
If it be for sale of real To sell such property
123
EXECUTION FOR JUDGMENTS OF
MONEY
If the award is for payment of money, execution
is enforced by: (Rule 39, Sec. 9)
1. Immediate payment on demand
2. Satisfaction by levy
3. Garnishment of debts and credits
IMMEDIATE PAYMENT ON DEMAND
Procedure:
1. The officer shall demand from judgment
obligor the immediate payment of the
full amount stated in the writ and all
lawful fees
2. The judgment obligor shall pay the
amount of the judgment debt
a. Payable in Cash, Certified bank
check payable to judgment obligee,
or any other form of payment
acceptable to judgment obligee
(1) In no case shall sheriff demand
that any payment by check be
made payable to him
(2) Amount of judgment under
proper receipt directly to the
judgment obligee or his
authorized representative if
present at time of payment
b. If judgment oblige or his
representative is present to receive
payment:
(1) Judgment obligor shall delver
payment to executing sheriff
(2) Sheriff shall turn over the
amounts within the same day
to the clerk which issued the
writ or deposit the amounts to
a fiduciary account in the
nearest government depository
bank of the RTC of the locality
3. The judgment obligor shall pay the
lawful fees handed over to the sheriff.
Sheriff shall turn over the said amount
within the same day to the clerk that
issued the writ
4. If there is any excess it shall be
delivered to the judgment obligor.
Lawful fees shall be retained by the
clerk
SATISFACTION BY LEVY
Levy is the act whereby a sheriff sets apart or
appropriates for the purpose of satisfying the
command of the writ, a part or the whole of the
judgment debtors property.
Levy means the act or acts by which an officer
sets apart or appropriates a part or the whole of
the property of the judgment debtor for
purposes of the prospective execution sale
[Llenares v. Vandevella (1966)].
If susceptible of appropriation, the officer
removes and takes the property for safekeeping;
otherwise the same is placed under sheriffs
guards. Without valid levy having been made,
any sale of the property thereafter is void.
Conditions to be met before resort to satisfaction
by levy:
1. If the judgment obligor cannot pay all or
part of the obligation then the officer
shall levy upon the properties of the
judgment obligor
2. Characteristics of properties to be
levied
a. Properties of every kind and nature
whatsoever
b. Which may be disposed of for value
c. Not otherwise exempt from
execution
Procedure:
1. The judgment obligor have the option to
immediately choose which property or
part thereof may be levied upon,
sufficient to satisfy judgment
2. If judgment obligor does not exercise
the option:
a. The officer shall first levy on
personal properties, if any
b. If personal properties are
insufficient, then on the real
properties
3. Sheriff shall sell only sufficient portion
of personal or real property of the
judgment obligor levied upon
4. If there is more property than is
sufficient to satisfy judgment and lawful
fees, then sell only so much as is
sufficient
GARNISHMENT OF DEBTS AND CREDITS
124

Garnishment is considered as a species of 4. The garnishee shall make a written

attachment for reaching credits belonging to the
judgment debtor and owing to him from a
stranger to the litigation
The Officer may levy on:
1. Debts due the judgment obligor and
other credits,
2. Including bank deposits, financial
interests, royalties, commissions,
3. And other personal property not
capable of manual delivery in
possession and control of third parties
report to the court within 5 days from
service of notice of garnishment. The
report shall state whether:
a. Judgment obligor has sufficient
funds or credits to satisfy judgment,
OR
b. Judgment obligor has insufficient
funds or credits to satisfy judgment
5. Garnish the amount which may be in
cash, or certified bank check issued in
the name of judgment obligee

The process of levying shall be called 6. Garnished amount shall be delivered

garnishment if the property involved is money,
stocks, or other incorporeal property in the
HANDS OF THIRD PERSONS. Garnishment
merely sets apart such funds but does not
constitute the creditor as owner of the
garnished property.
Garnishment is not a violation of RA 1405 on the
secrecy of bank deposits. [Chinabank v. Ortega
(1973)]
directly to judgment obligee within 10
working days from service of notice on
said garnishee requiring such delivery
7. Follow procedure under Immediate
Payment on Demand with respect to
delivery
8. Lawful fees shall be paid directly to
court

Notes: Upon service of the writ of garnishment,

the garnishee becomes a virtual party or
forced intervenor to the case and the trial
court thereby acquires jurisdiction to bind the
garnishee to comply with its orders and
processes. [BPI v. Lee (2012)]

UPs funds, being government funds, are not

subject to garnishment. Moreover, The
execution of the monetary judgment against the
UP was within the primary jurisdiction of the
COA. [UP v. Dizon (2012)]

Procedure:
1. Levy shall be made by serving notice
upon:
a. The person owing such debts, or
b. Having in his possession or control
such credits to which judgment
obligor is entitled

2. Garnishment to cover only such amount

as will satisfy judgment and lawful fees

3. If there are 2 or more garnishees,

holding deposits or credits sufficient to
satisfy judgment, judgment obligor shall
have the right to indicate the
garnishee/s who shall be required to
deliver. Otherwise, the choice shall be
made by judgment obligee
125

EXECUTION OF JUDGMENTS FOR Any costs, damages, rents or profits awarded by

SPECIFIC ACTS
When proper: (Rule 39, Sec. 10)
1. Resorted to if the judgment directs a
party to:
a. Execute a conveyance of land or
personal property, or
b. Deliver deeds or other documents,
or
c. Perform any other specific act in
connection therewith.
2. AND the party fails to comply within the
time specified
Procedure:
1. Court may direct the act to be done
a. At the cost of disobedient party
b. Or by some other person appointed
by the court
2. In case of directing conveyance of real
or personal property located in the
Philippines:
a. Court may divest the title of any
party and vest it in others by court
order
b. This shall have the force and effect
of conveyance executed in due form
the judgment shall be satisfied in the same
manner as a judgment for money.
Removal of improvements on property subject of
execution
When the property subject of the execution
contains improvements constructed or planted
by the judgment obligor or his agent, the officer
shall not destroy, demolish or remove said
improvements except upon special order of the
court, issued upon motion of the judgment
obligee after the hearing and after the former
has failed to remove the same within a
reasonable time fixed by the court.
Delivery of personal property
In judgment for the delivery of personal
property, the officer shall take possession of the
same and forthwith deliver it to the party
entitled thereto and satisfy any judgment for
money as therein provided.

Sale of real or personal property

If judgment is rendered ordering the sale of real

or personal property, an order for execution
shall be issued describing such property as may
be ordered sold, selling it, and applying the
proceeds in conformity with the judgments
instructions.

Delivery or restitution of real property

The officer shall demand of the person against

whom the judgment for the delivery or
restitution of real property is rendered and all
persons claiming rights under him to peaceably
vacate the property within three (3) working
days, and restore possession thereof to the
judgment obligee.

Otherwise, the officer shall oust all such persons

therefrom with the assistance, if necessary, of
appropriate peace officers, and employing such
means as may be reasonably necessary to retake
possession, and place the judgment obligee in
possession of such property.
126

EXECUTION OF SPECIAL JUDGMENTS EFFECT OF LEVY ON THIRD PERSONS

When Proper: (Rule 39, Sec. 11)
When a judgment requires performance of any
other act than those mentioned in Sec. 9 and 10.
Special Judgment is one which can only be
complied with by the judgment obligor because
of his personal qualifications or circumstances.
It requires performance of an act other than
payment of money or sale or delivery of
property. A special judgment may be enforced
by contempt if defendant refuses to comply
The levy on execution 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 the levy, subject to liens
and encumbrances then existing. (Rule 39, Sec.
12)
NOTE: The power of the court in execution
extends only over properties
UNQUESTIONABLY belonging to judgment
debtor.

Procedure:
1. A writ of execution shall be issued.
Attached to this is a certified copy of the
judgment

2. Service by the officer upon:

a. The party against whom the same is
rendered, or
b. Any other person required thereby,
or by law, to obey the same

3. Failure of such party to obey the

judgment is punishable by contempt

Examples:
1. A judgment in mandamus to reinstate
petitioner as chief clinic of the hospital
(Vital-Gozon v. CA)
2. A judgment directing petitioner to
vacate the land which is a judgment to
deliver possession of real property and
not special judgment. No contempt for
refusal (Moslem v. Soriano)
3. A judgment directing defendant to
remove a fence from a certain place is a
special judgment (Marquez v. Marquez)
127

PROPERTIES EXEMPT FROM 11. Monies, benefits, privileges, or annuities

EXECUTION
General Rule: Except as otherwise expressly
provided by law, the following property, and no
other, shall be exempt from execution (Rule 39,
Sec. 13)
1. The judgment obligor's family home as
provided by law, or the homestead in
which he resides, and land necessarily
used in connection therewith;
2. Ordinary tools and implements
personally used by him in his trade,
employment, or livelihood;
3. 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;
4. His necessary clothing and articles for
ordinary personal use, excluding
jewelry;
5. 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;
6. Provisions for individual or family use
sufficient for four months;
accruing or in any manner growing out
of any life insurance;
12. The right to receive legal support, or
money or property obtained as such
support, or any pension or gratuity
from the Government;
13. Properties specially exempted by law.
(e.g., property mortgaged to the DBP
[Section 26, CA 458]; savings of national
prisoners deposited with the POSTAL
SAVINGS BANK [Act 2489]; benefits
from private retirement systems of
companies and establishments with
limitations [RA 4917]; laborers wages
except for debts incurred for food,
shelter, clothing and medical
attendance [ART 1708, CIVIL CODE];
benefit payments from SSS [Section 16,
RA 1161 AS AMENDED])
Exception: However, no article or species of
property mentioned in this section shall be
exempt from:
1. Execution issued upon a judgment
recovered for its price, or
2. Upon a judgment of foreclosure of a
mortgage thereon.
The exemptions MUST BE CLAIMED, otherwise
they are deemed waived. It is not the duty of the
sheriff to set off the exceptions on his own
initiative. (Herrera v. Mcmicking, 1909)

7. The professional libraries and

equipment of judges, lawyers,
physicians, pharmacists, dentists,
engineers, surveyors, clergymen,
teachers, and other professionals, not
exceeding three hundred thousand
pesos in value;

8. 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;

9. 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;

10. Lettered gravestones;

128
RETURN OF WRIT OF EXECUTION
Procedure for Return of Writ of Execution if
Judgment is Satisfied within 30 days (Rule 39,
Sec. 14)
1. Writ of execution shall be returnable to
the court issuing it immediately after
judgment has been satisfied in part or in
full
2. The return shall set forth the whole of
the proceedings taken
3. Return is filed with the court
4. It shall also be reproduced and copies
thereof furnished to parties
Procedure if Judgment is NOT satisfied within 30
days:
1. Officer shall report to the court stating
the reason for non-satisfaction
2. The writ shall continue in effect during
the period within which judgment may
be enforced by motion
3. Officer shall make a report to the court
every 30 days on the proceedings taken
thereon, until either:
a. Judgment is satisfied in full, or
b. Its effectivity expires
4. The periodic reports shall:
a. Set forth the whole of the
proceedings taken, and
b. Be filed with the court
c. Be reproduced and copies thereof
furnished to parties
NOTE: The lifetime of a writ of execution is
without limit for as long as the judgment has not
been satisfied.
But it is returnable to the court issuing it
immediately after judgment has been satisfied in
full or in part.
The writ shall continue in effect during period
within which the judgment may be enforced by
motion which is 5 years from date of entry. After
the first 5 years, judgment becomes dormant
and subject to revival action.
PROCEEDINGS WHERE PROPERTY
CLAIMED BY THIRD PERSON
CONCEPTS
Rule 39, Sec. 16 and other provisions which
provide for a mode of recovering property
allegedly to have been wrongfully taken by
sheriff pursuant to a writ of execution or other
process, refers to a STRANGER to an action.
Remedies of Third-Party Claimant:
1. Summary hearing before the court
which authorized the execution
2. Terceria or third-party claim filed
with the sheriff (Rule 39, Sec. 16)
3. Action for damages on the bond posted
by the judgment creditor
4. Independent reivindicatory action
The aforementioned are cumulative remedies
and may be resorted to by a third-party claimant
independently of or separately from and
without need of availing of the others. [Sy v.
Discaya (1990)]
For a Third-Party Claim to be Sufficient:
1. Must be filed by a person other than the
defendant or his agent, at any time
before sale
2. Must be under oath or supported by
affidavit stating the claimants title to,
or right of possession of, the property,
and grounds therefor
3. Must be served upon the officer making
levy and a copy thereof upon the
judgment creditor
The timing of the filing of the claim is important
because it determines the remedies available to
the claimant:
1. If the claim is filed under Rule 39, Sec.
16:
a. Claimant may vindicate his claim in
a separate action
b. Intervention is no longer allowed
since judgment has already been
rendered
2. If the claim is filed under Sec. 14, Rule
57 (Attachment) or under Sec. 7, Rule
60 (Replevin)
a. Claimant may vindicate his claim by
intervention as he has a legal
interest in the matter of litigation
b. Intervention is allowed as these
actions are still pending in court
129
Effect of Third-Party Claim: When a third-party
claim is filed, sheriff is not bound to proceed
with the levy of the property unless judgment
creditor or latters agent posts an indemnity
bond against the claim.
SUMMARY HEARING BEFORE COURT
AUTHORIZING EXECUTION
A third-person whose property was seized by a
sheriff to answer for an obligation of a judgment
debtor may invoke the supervisory power of the
court which authorized such execution
Procedure:
1. Claimant files application
2. Court conducts summary hearing
a. The court may command that the
property be released from the
mistaken levy and restored to
rightful owner or possessor
b. If claimants proofs do not
persuade, the claim will be denied
by the court
3. Note however that the court
determination is limited
a. Limited only to a determination of
whether the sheriff has acted
rightly or wrongly in performance
of his duties
b. The court does not and cannot pass
upon the question of title. It can
treat of the matter only insofar as
may be necessary to decide if
sheriff acted correctly or not
TERCERIA
Independent of the foregoing, a third-party
claimant may also avail of the remedy of
Terceria. Terceria is provided in Sec. 16, Rule
39.
This is an action for damages by claimant
against officer within 120 days from date of
filing of bond for taking or keeping the property
subject of the terceria
Procedure
1. Claimant serves on the officer making
levy an affidavit of his title and a copy
thereof to judgment creditor
2. Officer shall not be bound to keep
property
a. Unless judgment creditor, or his
agent, on demand of officer, posts
indemnity bond not lesser nor
greater than value of property
3. Where a third-party claim has been
filed in due form:
a. Prevailing party can compel the
sheriff to proceed by filing of a
bond to answer for damages as a
consequence of the execution
b. If sheriff proceeds with the sale
without such bond, he will be
personally liable for such damages
as may be sustained by and
awarded to the claimant
4. Action against Indemnity
a. Action against indemnity bond
must be filed within 120 days from
date of filing of the bond
b. After lapse of 120 days, no claim for
damages for taking or keeping of
property may be enforced against
the bond
The right of a third-party claimant to file a
terceria is founded on his title or right of
possession. Corollary thereto, before the court
can exercise its supervisory power to direct the
release of the property mistakenly levied and
the restoration thereof to its rightful owner, the
claimant must first unmistakably establish his
ownership or right of possession thereon.
(Magdalena T. Villasi v. Filomena Garcia,
substituted by his heirs, namely, Ermelinda H.
Garcia, et al, 2014)
In Spouses Sy v. Hon. Discaya (1990]), SC
declared that for a third-party claim or a terceria
to prosper, the claimant must first sufficiently
establish his right on the property
REINVINDICATORY ACTION
The aforesaid remedies are nevertheless
without prejudice to any proper action that
third-party claimant may file to vindicate his
claim over the property (ownership claim). This
action is separate and independent
Procedure
1. He must institute an action, distinct and
separate from that which the judgment
is being enforced, with the court of
competent jurisdiction
130

2. No need to file a claim in the court RULES ON REDEMPTION

which issued a writ. The latter is not a
condition sine qua non for the former.
WHEN AVAILABLE
3. In such proper action, validity and 1. For personal property there is NO
sufficiency of title of claimant will be right of redemption as the sale is
resolved. absolute
2. For real property right of redemption
4. A writ of preliminary injunction against is available
sheriff may be issued
WHO MAY REDEEM REAL PROPERTY SO
SOLD (Rule 39, Sec. 27)

Who may redeem:

1. Judgment obligor, or his successor in
interest, in the whole or any part of the
property
2. Remptioner who is a creditor having a
lien by virtue of an attachment,
judgment or mortgage on the property
sold, subsequent to the lien which the
property was sold

Successors-in-interest - They include, among

others, one to whom the debtor has conveyed
HIS INTEREST in the property for purposes of
redemption

The Redemptioner

He is a creditor with a lien SUBSEQUENT to the

judgment which was the basis of the execution
sale.

Unlike the judgment debtor, a redemptioner

must prove his right to redeem by producing the
documents required in Sec. 30, to wit:
1. Copy of the judgment or final order
under which he claims the right to
redeem certified by the clerk wherein
judgment or final order was entered OR
2. If he redeems upon a mortgage or other
lien, a memorandum of the record
thereof, certified by the Register of
Deeds; OR
3. An original or certified copy of any
assignment necessary to establish his
claim; OR
4. An affidavit executed by him or his
agent showing the amount then actually
due on the lien (Sec. 30)

If the lien of the creditor is PRIOR to the

judgment under which the property was sold:
1. He is not a redemptioner
2. He cannot redeem since his interests in
his lien are fully protected. Any
purchaser at a public auction takes the
131
same subject to such prior lien which he
has to satisfy
WHEN CAN REDEMPTION BE MADE (Rule 39,
Sec. 28)
WHO WHEN
Within 1 year from date of
By the JUDGMENT
registration of certificate of
DEBTOR
sale
Within 1 year from date of
By FIRST
registration of certificate of
REDEMPTIONER
sale
Within 60 days from last
BY ALL redemption
SUBSEQUENT PROVIDED that judgment
REDEMPTIONERS debtor has not exercised
his right of redemption
In all cases, judgment debtor shall have the
entire 1 year period from date of registration of
sale to redeem the property. If judgment debtor
redeems, no further redemption is allowed (Sec.
29).
NOTE: There is no extension or interruption of
redemption period.
REDEMPTION PRICE
1. By the Judgment Debtor or First
Redemptioner:
a. Purchase PRICE
b. 1% INTEREST thereon up to time of
redemption
c. Any amount of ASSESSMENTS OR
TAXES which purchaser may have
paid after purchase as well as
interest on such last named amount
at the same rate
d. If purchaser is also a creditor
having a PRIOR LIEN to that of
redemptioner, other than the
judgment under which such
purchase was made, the AMOUNT
of such OTHER LIEN, also with
interest
2. By all Subsequent Redemptioners
a. AMOUNT paid on last redemption
b. 2% INTEREST thereon
c. Any amount of ASSESSMENTS OR
TAXES which purchaser may have
paid after purchase as well as
interest on such last named amount
at the same rate
d. Amount of any LIENS held by said
last redemptioner prior to his own,
also with interest
NOTE: The redemption price for subsequent
redemption shall be the same, so the price
becomes higher and higher.
EFFECT OF REDEMPTION BY THE JUDGMENT
OBLIGOR (Rule 39, Sec. 29)
If Judgment debtor redeems the property:
1. No further redemption is allowed
2. He is restored to his estate
When a judgment debtor redeems the property,
what is effected is the elimination of the lien
created by the levy on attachment or judgment
on the registration of mortgage thereon. Note
that he never lost ownership so there is no
recovery of ownership.
Payments mentioned in Sec. 28 and 29 may be
made to the:
1. Purchaser, or
2. Redemptioner, or
3. For him to the officer who made the sale
The person to whom redemption payment is
made must execute and deliver to him a
CERTIFICATE OF REDEMPTION
1. Acknowledged by a notary public or
other officer authorized to take
acknowledgements of conveyances of
real property
2. Filed and recorded in the registry of
deeds of the place which the property is
situated
3. Registrar must note the record on the
margin of the record of the certificate of
sale
RIGHTS PENDING REDEMPTION (Rule 39, Sec.
31 and 32)
Right of Judgment Creditor Pending Redemption
1. Apply for injunction to restrain the
commission of waste on the property
Rights of the Judgment Debtor Pending
Redemption
1. Remain in possession of the property
2. Cannot be ejected
3. Use the property in the same manner it
was previously used
4. Make necessary repairs to buildings
thereon while he occupies the property
132
5. Use it in the ordinary course of
husbandry (Sec. 31); and
6. Collect rents, earning and income
derived from property until the
expiration of period of redemption
EXPIRATION OF REDEMPTION PERIOD (Rule
39, Sec. 33)
Judgment obligor shall have the entire period of
ONE YEAR from date of registration of sale to
redeem the property
Entitlement to a CONVEYANCE and POSSESSION:
1. To the PURCHASER
If there is no redemption made
within 1 year from date of
registration of the certificate of sale
2. To the LAST REDEMPTIONER
If there was redemption, and 60
days have elapsed and no other
redemption has been made
Notice must have been given, and
the redemption period has elapsed
Two Documents which the Sheriff Executes in case
of Real Property
1. CERTIFICATE OF SALE
After auction sale, he will execute in
favor of the purchaser the
certificate of sale under Sec. 25
From registration of said certificate,
the one year redemption period
starts
Certificate of sale after execution
sale is merely a memorial of the fact
of sale and does not operate as
conveyance
2. DEED OF CONVEYANCE
Issued if after expiration of
redemption period there is no
redemption
Operates to transfer to purchaser
whatever rights the judgment
debtor had in the property
The effect of a final deed of sale
transfers the right as of the time of
the levy
RECOVERY OF PRICE IF SALE IS NOT
EFFECTIVE (Rule 39, Sec. 34)
Purchaser may recover the purchase price WHEN:
1. Purchaser or his successor-in-interest
fails to recover possession the property;
or
2. Evicted due to:
a. Irregularities in the proceedings
concerning the sale; or
b. Judgment has been reversed or set
aside; or
c. The property sold was exempt form
execution; or
d. A third person has vindicated his
claim to the property
Remedies of the Purchaser
1. File a motion in the same action or file a
separate action to recover from
judgment creditor the price paid
2. File a motion for revival of judgment in
his name against judgment debtor; or
3. Bring an action to recover possession of
property
Effect of revived judgment it has the same force
and effect as an original judgment would have as
of the date of revival and no more
REMEDIES OF JUDGMENT CREDITOR IN AID
OF EXECUTION OR IF JUDGMENT IS NOT
FULLY SATISFIED (Rule 39, Sec. 36 43)
1. SEC. 36 If execution is returned
unsatisfied, he may cause examination
of the judgment debtor as to his
property and income
a. When: At any time after return is
made
b. The court issues an order requiring
the judgment debtor to appear and
be examined
c. Limitations on examination:
(1) Judgment debtor cannot be
made to appear before a judge
or commissioner outside the
province where debtor resides
(2) He may no longer be examined
after lapse of 5 years within
which a judgment may be
enforced by motion for
execution (Umali v. Coquia)
2. SEC. 37 He may cause examination of
the debtor of the judgment debtor as to
any debt owed by him or to any
property of the judgment debtor in his
possession
a. Requisites:
(1) The writ must be returned
unsatisfied; and
(2) Proof that person, corporation,
or other legal entity has
133

property of such judgment 7. SEC. 42 Sale of Ascertainable Interest

debtor or is indebted to him
b. Where? Before a judge or
commissioner appointed by him at
a time and place where such debtor
resides or is found
c. Effect: Service of order shall bind all
credits due to judgment debtor and
all money and property
d. This rule is not applicable if there is
no issue concerning the
indebtedness of the person
3. SEC. 37 If after examination, court
finds property of the judgment debtor,
either in his own hands or that of any a
person, court may order the property
applied to the satisfaction of judgment
a. SEC. 39 - Note that the person
indebted to judgment obligor may
pay to the sheriff holding the writ
the amount of his debt or so much
thereof as may be necessary to
satisfy the judgment
4. SEC. 38 A party or other person may
be compelled to attend before the court
or commissioner to testify as provided
in Sec. 36 and 37
a. This must be done by order of the
court or by subpoena
b. Failure to obey: Contempt
c. All examinations and answers must
be under oath
of Judgment Obligor in Real Estate by
Receiver
a. Requisites:
(1) The court finds that the
judgment debtor has an
ascertainable interest in real
property
(2) Such interest can be
ascertained without
controversy
b. If the requisites are met, the court
can order the sale of such interest.
Procedure is the same as in sale of
real estate upon execution
8. SEC. 43 Institution of an action to
recover property
a. If person alleged to have property
of judgment debtor or person
indebted to him, claims an adverse
interest in the property or denies
his debt
b. Court may authorize judgment
creditor to bring an action to
recover the property, forbid its
transfer
c. Action must be instituted within
120 days from notice of order
d. Failure is contempt
e. Such order may be modified or
vacated at any time by the court

5. SEC. 40 Order for application of

property and income to satisfaction of
judgment
a. Court may order any property of
judgment debtor, or any money due
him, or in the hands of another to
be applied to the satisfaction of
judgment
b. If the court finds the earning of the
judgment debtor for his personal
services are MORE than sufficient
for his familys needs, it may order
payment in FIXED MONTHLY
INSTALLMENTS
c. Failure to do so: Punish for
contempt

6. SEC. 41 Appointment of a Receiver

a. Court may appoint a receiver for
the property of judgment debtor
not exempt from execution
b. Court may also forbid disposition or
interference with the property
134

EFFECT OF JUDGMENT OR FINAL CONCLUSIVE upon order is CONCLUSIVE

ORDERS title the thing, will or as between parties
administration of and their successors in
Rule 39, Sec. 47 refers to judgments which are condition, status or interest, litigating for
considered as conclusive and may be rebutted relationship of the the same thing and
directly by means of relief from judgment or person under the same title
annulment of judgment or indirectly by offering an in the same
them in evidence under the parole evidence capacity
rule. e.g. accion
e.g. land registration
reinvindicatoria
Immutability of Judgments - Once a judgment
attains finality it thereby becomes immutable Bar by prior judgment is a preclusion of claims -
and unalterable The first judgment is a bar to the prosecution of
a second action upon the same claim, demand,
or cause of action
DUAL ASPECT OF RES JUDICATA
Requisites:
1. Bar by Former Judgment - Direct 1. A FINAL judgment or order
Estoppel by Judgment; covers 2. JURISDICTION over the subject matter
paragraph (a) and (b) and the parties by the court rendering it
2. Conclusiveness of Judgment Estoppel 3. Judgment UPON MERITS
by Verdict, Estoppel by Record, 4. Between the TWO CASES, there is:
Collateral Estoppel by Judgment or a. IDENTITY OF PARTIES
Preclusion of Issues or Rule of Auter b. IDENTITY OF SUBJECT MATTER
Action Pendant; it covers paragraph (c) c. IDENTITY OF CAUSE OF ACTION

BAR BY FORMER CONCLUSIVENESS OF General Rule: For res judicata to apply, trial
JUDGMENT JUDGMENT must be made on the merits of the case.
There is only identity of
There is identity of Exception: Section 3, Rule 17 of ROC: If plaintiff
parties and subject
parties, subject fails to appear at the time of the trial , or to
matter
matter, and causes prosecute his action for an unreasonable length
Cause of action are
of action of time, or to comply with these rules or any
different
The first judgment is order of the court, the action may be dismissed
The first judgment upon motion of the defendant or upon the
conclusiveness only as
constitutes as an court's own motion . This dismissal shall have
to matters directly
absolute bar to all the effect of an adjudication upon the merits ,
adjudged and actually
matters directly unless otherwise provided by court.
litigated in the first
adjudged and those [Development Bank v. CA]
action.
that might have
The second action can
been adjudged Res Judicata in Judgments in Rem
be prosecuted
Preclusion of issues
Preclusion of claims
only
Judgments or final
Conclusive as to
order
BAR BY FORMER JUDGMENT
Against a specific thing Title of the thing
Res judicata is a rule that a final judgment The will or
rendered by a court of competent jurisdiction on administration.
the merits is conclusive as to the rights of the However, the probate
parties and their privies, and, as to them, Probate of a will or of a will or granting of
constitutes an absolute bar to a subsequent administration of the letters of
action involving the same claim, demand, or estate of a deceased administration shall
causes of action. person only be prima facie
evidence of the death
IN REM IN PERSONAM of the testator or
(Paragrah A) (Paragraph B) intestate;
Decision is The judgment or final in respect to the Condition, status or
personal, political, or relationship of the
135

legal condition or person, As discussed in Ayala Corp. v. Rosa-Diana Realty,

status of a particular 2000:
person or his
relationship to Law of the
Res Judicata Stare Decisis
another Case
Operates only
Res Judicata in Judgments in Personam in the
The ruling
particular and
in one case
In other cases, the judgment or final order is, single case
is carried
with respect to the matter directly adjudged or where the
over to
as to any other matter that could have been ruling arises
another case
missed in relation thereto, conclusive: and is not
between the
1. Between the parties and carried into
same parties
2. Their successors in interest, by title other cases as
subsequent to the commencement of a precedent
the action or special proceeding, Once a point of
litigating for the same thing and under law has been
the same title and in the same capacity. established by
The ruling
the court, that
adhered to in
point of law
the particular
CONCLUSIVENESS OF JUDGMENT will, generally,
case need not
be followed by
be followed as
Preclusion of issues (auter action pendant) the same court
a precedent in
and by all
subsequent
In any other litigation between the same parties courts of lower
litigation
or their successors in interest, that only is rank in
between other
deemed to have been adjudged in a former subsequent
parties
judgment or final order which appears upon its cases where
face to have been so adjudged, or which was the same legal
actually and necessarily included therein or issue is raised
necessary thereto.

Issue Preclusion The first judgment precludes

the re-litigation of a particular fact or issue in
another action between the same parties on a
different cause of action.

Requisite: Identity of ISSUES

RES JUDICATA v. LAW OF THE CASE v. STARE

DECISIS

Stare Decisis - When the SC has laid down a

principle of law applicable to a certain state of
facts, it will adhere to that principle and apply to
it all future cases where the facts are
substantially the same

Doctrine of the Law of the Case - Whatever is

once irrevocably established as the controlling
legal rule or decision between the same parties
in the case continues to be the law of the case
whether correct on general principles or not, so
long as the facts on which such decision was
predicated continue to be the facts of the case
before the court.
136

EFFECT OF FOREIGN JUDGMENTS OR 2. It may be pleaded in an Answer or a

FINAL ORDERS Motion to Dismiss.

PUBLIC POLICY PRINCIPLE EFFECT OF FOREIGN JUDGMENTS (Rule 39,

Sec. 48)
A judgment by a foreign court is enforceable
only within its territorial jurisdiction. NATURE EFFECT
In judgments against Judgment is
A valid judgment rendered by a foreign tribunal a specific thing (in CONCLUSIVE upon the
may be recognized insofar as the immediate rem) title to the thing
parties the underlying cause of action are Judgment is
concerned so long as it is convincingly shown PRESUMPTIVE
that: In judgments against evidence of a right as
1. There has been an opportunity for a fair a person (in between parties and
hearing before a court of competent personam) their successors-in-
jurisdiction interest by a
2. Trial upon registered proceedings has subsequent title
been conducted
3. There is nothing to indicate either a In both cases, judgment may be repelled by
prejudice in court and in the system of evidence of:
laws under which it is sitting or fraud in 1. Want of jurisdiction
procuring the judgment [Philippine 2. Want of notice
Aluminum v. Fasgi Enterprises (2000)] 3. Collusion
4. Fraud
Such limitation on the review of foreign 5. Clear mistake of law or fact
judgment is adopted in all legal systems to avoid
repetitive litigation on claims and issues, A foreign judgment is presumed to be valid and
prevent harassment of the parties and avoid binding in the country from which it comes,
undue imposition on the courts. until a contrary showing, on the basis of a
presumption of regularity of proceedings and
This policy of preclusion rests on principles of the giving of due notice in the foreign forum.
comity, utility and convenience of nations.
Before our courts can give the effect of res
As a generally accepted principle of judicata to a foreign judgment, it must be shown
international law, it is part of the law of the that the parties opposed to the judgment had
Philippines by virtue of the Incorporation Clause been given ample opportunity to do so on
[Section 2, Article II of the 1987 Constitution] grounds under Section 48 of Rule 39 of the Rules
[Regalado] of Court. [Roehr v. Rodriguez (2003)]

Two Ways of Giving Effect to Foreign Judgment:

1. An ordinary action to enforce the
foreign judgment may be filed in court;
or

PROVISIONAL
judgment in the case; also known as ancillary or
auxiliary remedies.

REMEDIES They are applied to a pending litigation, for the

purpose of securing the judgment or preserving
the status quo, and in some cases after judgment,
for the purpose of preserving or disposing of the
NATURE OF PROVISIONAL REMEDIES subject matter. [Calo v. Roldan (1946)]

Provisional remedies are writs and processes
available during the pendency of the action
which may be resorted to by a litigant for the
preservation or protection of their rights and
interests therein pending rendition, and for
purposes of the ultimate effects, of a final
Orders granting or denying provisional
remedies are merely interlocutory and cannot
be the subject of an appeal. They may however
be challenged before a superior court through a
petition for certiorari under Rule 65.
137
The Provisional Remedies under the Rules of
Court
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)
NOTE: The enumeration above is not
exclusive. The court may invoke its equity
jurisdiction and order the appropriate
reliefs during the pendency of an action
JURISDICTION OVER PROVISIONAL
REMEDIES
The court which grants or issues a provisional
remedy is the court which has jurisdiction over
the main action.
Inferior courts may also grant all appropriate
provisional remedies in an action pending with
it and is within its jurisdiction (Sec. 33, (1), BP
129)
PRELIMINARY ATTACHMENT
DEFINITION
A provisional remedy issued upon order of the
court where an action is pending to be levied
upon the property of the defendant so the
property may be held by the sheriff as security
for the satisfaction of whatever judgment may
be rendered in the case [Davao Light v CA
](1991)
PURPOSES
1. To seize the property of the debtor in
advance of final judgment and to hold it
for purposes of satisfying the said
judgment.
2. To enable the court to acquire
jurisdiction over the action by the
actual or constructive seizure of the
property in those instances where
personal service of summons on the
creditor cannot be effected. [Quasha v.
Juan (1982)]
GROUNDS FOR ISSUANCE (Rule 57, Sec. 1)
There are only specific situations where
preliminary attachment may issue. The grounds
are EXCLUSIVE:
1. Action for recovery of a specified
amount of money or damages, EXCEPT
moral and exemplary,
a. On a cause of action arising from
law, contract, quasi-contract, delict,
or quasi-delict
b. Against a party who is about to
depart from the Philippines with
intent to defraud his creditors;
2. Action for money or property,
embezzled or fraudulently misapplied
or converted to his own use by either:
a. A public officer, an officer of a
corporation, an attorney, factor,
broker, agent, or clerk, in the course
of his employment as such,
b. OR by any other person in a
fiduciary capacity, or for a willful
violation of duty;
3. Action to recover the possession of
property unjustly or fraudulently taken,
detained or converted,
a. When the property, or any part
thereof, has been concealed,
removed, or disposed of to prevent
138
its being found or taken by the
applicant or an authorized person;
NOTE: rule makes no distinction
between real and personal property
[Riano]
4. Action against a party who has been
guilty of a fraud in contracting the debt
or incurring the obligation upon which
the action is brought, OR in the
performance thereof;
NOTE: the delivery of
counterfeit money or
knowingly issuing a bounced
check are considered as
grounds under this rule [Riano]
5. Action against a party who has removed
or disposed of his property, or is about
to do so, AND with intent to defraud his
creditors; or
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.
Note: the rule also refers to
persons on whom summons
may be served by publication
and against whose property,
preliminary attachment may be
availed of such as:
(1) Residents defendants
whose identity or whose
whereabouts are unknown
[Rule 14, Sec. 14]
(2) Resident defendants who
are temporarily out of the
country [Rule 14, Sec. 16]
REQUISITES FOR PRELIMINARY
ATTACHMENT TO ISSUE:
1. The case must be any of those where
preliminary attachment is proper (Sec.
1, Rule 57)
2. Applicant must file a motion whether ex
parte or with notice and hearing
3. Applicant must show by affidavit that
there is no sufficient security for the
claim sought to be enforced and that the
amount claimed in the action is as much
as the sum of which the order is granted
above all counterclaims
4. Applicant must post a bond executed to
adverse party
A writ of preliminary attachment is too harsh a
provisional remedy to be issued based on
mere abstractions of fraud. Rather, the rules
require that for the writ to issue, there must be
a recitation of clear and concrete factual
circumstances manifesting that the debtor
practiced fraud upon the creditor at the time of
the execution of their agreement in that said
debtor had a preconceived plan or intention not
to pay the creditor. [Equitable v. Special Steel
(2012)]
ISSUANCE AND CONTENTS OF ORDER OF
ATTACHMENT (Rule 57, Sec. 2)
When may one apply: A preliminary attachment
may be applied for
1. At the commencement of the action or
2. At any time before the entry of
judgment.
Who may apply: It may be applied for by the
plaintiff OR any proper party (including a
defendant who filed a counterclaim, cross-claim,
or a third party complaint)
Methods to Procure Preliminary Attachment:
1. Writ may be prayed for in the complaint
itself providing the allegations
warranting its issuance
2. May be issued pursuant to a separate
motion for attachment whenever the
writ is not prayed for in the original
complaint
Three Stages in the Grant of a Preliminary
Attachment:
1. The court issues the order granting the
application
2. Writ of attachment issues pursuant to
the order granting the writ
3. The writ is implemented
NOTE: For the initial two stages, it is not
necessary that jurisdiction over person
of defendant be first obtained
However, once implementation of writ
commences, court must have acquired
jurisdiction over the defendant for
without such jurisdiction, the court has
no power or authority to act
Issuance of the Order of Attachment
1. The order may be issued either:
a. Ex parte (service of summons to
defendant required)
139
b. Or upon motion with notice and
hearing
2. The order is issued by the court in
which the action is pending or the CA,
or the SC
Contents of the Order of Attachment:
1. It must require the sheriff to attach so
much of the property of the party
against whom it is issued as may be
sufficient to satisfy applicants demand
a. Property must be within the
Philippines
b. And it must not be exempt from
execution
2. It shall contain an amount for the
attachment bond:
a. The amount sufficient to satisfy the
applicants demand, or
b. The value of the property to be
attached as stated by applicant
AFFIDAVIT AND BOND (Rule 57, Sec. 3 and 4)
For the writ to issue, the applicant must submit
an affidavit and post bond. The affidavit and
bond required must be duly filed with the clerk
before order issues
Contents of the Affidavit: The affidavit must
establish:
1. A sufficient cause of action exists
2. Cause is one of those mentioned in Sec.
1 1. Party against whom writ is issued
3. No other sufficient security for the
claim sought to be enforced by action
4. Amount due to applicant or possession
of which is entitled to recover is as
much as the sum for which the order is
granted above all legal counterclaims
Applicants Bond: The party applying for the
order must give a bond executed to the adverse
party
1. Amount is fixed by the court in its order
granting the issuance of the writ
2. Conditioned that, if the court shall
finally adjudge that applicant was not
entitled to the writ, the bond will pay:
a. All costs which may be adjudged to
adverse party and
b. All damages which he may sustain
by reason of attachment
The bond shall only be applied to all damages
sustained due to the attachment. It cannot
answer for those that do not arise by reason of
the attachment [Riano].
THE RULE ON PROR OR CONTEMPORANEOUS
SERVICE OF SUMMONS
General Rule: A writ of attachment may be
issued ex parte even before the summons is
served upon the defendant. BUT a writ may not
be implemented until jurisdiction over the
person is acquired by service of summons.
Otherwise, the implementation is null and void.
[Riano]
Exceptions to Contemporaneous Service of
Summons: [Rule 57, Sec. 5]
1. Summons could not be served
personally or by substituted service
despite diligent efforts, or
2. Defendant is a resident of the
Philippines temporarily absent
therefrom, or
3. Defendant is a non-resident, or
4. The action is in rem or quasi in rem.
MANNER OF ATTACHING PROPERTY (Rule 57,
Sec. 5)
The sheriff enforcing the writ shall attach only
so much of the property in the Philippines of the
adverse party not exempt from execution as
may be sufficient to satisfy the applicants
demand, UNLESS
makes a deposit with the court from
which the writ is issued, or
2. He gives a counter-bond executed to the
applicant
ATTACHMENT OF REAL AND PERSONAL
PROPERTY (Rule 57, Sec. 7)
1. Real property, or growing crops
thereon, or any interest therein
a. File with the Registry of Deeds:
(1) A copy of the order together
with a description of the
property
(2) And a notice that the property
is attached
b. The registrar of deeds must index
attachments in the names of the
applicant, adverse party, or person
by whom the property is held or in
whose name it stands in the records
140
c. If attachment is not claimed on the
entire area of land, description
sufficiently accurate for
identification of such shall be
included in the registration
2. Personal property capable of manual
delivery
a. Issue a corresponding receipt
therefor
b. Then sheriff takes it and safely
keeps it in his custody
3. Stocks or Shares, or an Interest therein,
of any corporation or company
a. Leave a copy of the writ and a
notice stating that these properties
are attached in pursuance of such
writ
b. Leave these documents with the
president, or managing agent
thereof
4. Debts, credits, bank deposits, financial
interest, royalties, commissions and
other personal property not capable of
manual delivery
1. Leave a copy of the writ and a
notice that the debts owing, credits,
and other personal property are
attached in pursuance of such writ
2. Leave these documents with:
a. The person owing such debts,
or
b. Having in his possession or
under his control, such credits
or other personal property, or
c. With his agent
5. The interest of the party against whom
attachment is issued in property
belonging to the estate of decedent,
whether as heir, legatee, or devisee
a. By service of a copy of the writ, and
notice that said interest is attached
b. Service is made to:
(1) The executor, or administrator,
or
(2) Other personal representative
of the decedent
c. Copy of the writ and notice:
(1) Shall be filed with the clerk in
which said estate is being
settled, and
(2) Served upon the heir, legatee,
or devisee concerned
Property in custodia legis may be attached by:
1. Filing a copy of the writ of attachment
with the proper court or quasi-judicial
agency
2. Serving a notice of attachment upon the
custodian of the property [Rule 57, Sec.
7]
A previously attached property may also be
subsequently attached. But the first attachment
shall have priority over subsequent
attachments. [Riano]
PROCEEDINGS WHERE ATTACHED
PROPERTY IS CLAIMED BY THIRD PERSON
A third person who has a claim to the property
attached may avail of the following remedies:
1. File terceria or third-party claim (Rule
57, Sec. 14)
a. Note that a third-party claim may
be filed with the sheriff while has
possession of the properties levied
upon, this being the only time fixed
for the purpose
b. The claimant makes an affidavit of
his title or right to possession,
stating the grounds of such right or
title. The affidavit must be served
upon the sheriff
c. Substantial identical procedure as
in terceria in Rule 39, Sec. 16
2. File independent action to recover
property; or
3. File motion for intervention
a. This is available only before
judgment is rendered
DISCHARGE OF ATTACHMENT AND
COUNTER-BOND
After a writ of attachment has been enforced,
the party whose property has been attached, or
the person appearing on his behalf, may move
for the discharge of the attachment wholly or in
part on the security given.
Ways of Discharging Attachment
1. Counterbond under Sec. 12
2. Motion for Discharge under Sec. 13
Grounds for Discharge of Preliminary
Attachment:
141

1. Debtor has posted a counterbond or has 2. If there is any balance that remains due,
made the requisite cash deposit (Sec. sell property as may be necessary to
12) satisfy the balance if enough remains in
2. Attachment was improperly or the sheriff or those of the clerk
irregularly issued (Sec. 13) 3. Collection of property of garnishee and
a. As where there was no ground for proceeds paid to judgment oblige
attachment, or without need of prior permission to file
b. The affidavit and/or bond filed are action but may be enforced in the same
defective or insufficient (Sec. 3) action
3. Judgment is rendered against attaching 4. Return must be made within 10 days
creditor (Sec. 19) from receipt of writ
4. Attachment is excessive, but the
discharge shall be limited to the excess
(Sec. 13)
5. Property attached is exempt from
execution

NOTE: There is a difference between the bond

for issuance of writ and bond for lifting the writ
1. Bond for issuance of writ (Sec. 4) This
is for damages by reason of the issuance
of the writ
2. Bond for lifting of writ (Sec. 5 and 12)
This is to secure the payment of the
judgment to be recovered

Only the defendant or party whose property is

attached may move for its lifting. If the
attachment is proper, the discharge should be by
counterbond under Sec. 12 (KO Glass v.
Valenzuela)

Effect of Dissolution on Plaintiffs Attachment

Bond
1. Dissolution of preliminary attachment
upon security given, or a showing if its
irregular issuance, does not operate to
discharge the sureties on the
attachment bond
2. That bond is executed to adverse party
conditioned that the applicant will pay
all the costs which may be adjudged to
adverse party and all damages which he
may sustain by reason of the
attachment, if the court shall finally
adjudge that applicant was not entitled
thereto (Sec. 4)
3. Until that determination is made, as to
applicants entitlement to attachment,
his bond must stand and cannot be
withdrawn

SATISFACTION OF JUDGMENT OUT OF

PROPERTY ATTACHED (Rule 57, Sec. 15)

Procedure:
1. Pay to judgment obligee the proceeds of
sale of perishable property
142

PRELIMINARY INJUNCTION Same requirements for application as

preliminary injunction.

DEFINITIONS AND DIFFERENCES An application for a TRO shall be acted upon

only after all parties are heard in a summary
Injunction is a judicial writ, process, or hearing, which shall be conducted within 24
proceeding whereby a party is ordered to do or hours after the sheriff's return of service and/or
refrain from doing a particular act the records are received by the branch selected
by raffle. [Rule 58, Sec.4
Preliminary Injunction is an ancillary or
preventive remedy where a court requires a
person, a party or even a court or tribunal either Status Quo Order v. Injunction
to REFRAIN (prohibitory) from or to PERFORM
(mandatory) particular acts during the A status quo order is in the nature of a cease and
pendency of an action. It is only a temporary desist order. It is resorted to when the projected
remedy. proceedings in the case made the conservation
of the status quo desirable or essential, but the
affected party neither sought such relief nor did
Injunction Preliminary injunction the allegations in his pleading sufficiently make
out a case for a temporary restraining order.
Ancillary; exists only
as part or incident of It does NOT direct the doing or undoing of acts
Main action but is an order to maintain the last, actual,
an independent action
or proceeding peaceable and uncontested state of things which
sole object of which is preceded the controversy.
seeks a judgment
to preserve the status
embodying a final
quo until the merits
injunction Status Quo Anter Order
can be heard
Based on all evidence based solely on initial
gathered by court to and incomplete Directs the maintenance of the condition
determine main action evidence prevailing before the promulgation of the
assailed decision.
Purpose: To prevent future injury and maintain
the status quo (i.e. the last actual, peaceable, It has the nature of a TRO. [Dojillo v. COMELEC,
uncontested status which preceded the pending 2006]
controversy) for [Knecht v. CA, (1993)]

The injunction should not establish new REQUISITES:

relations between the parties but merely re- 1. There must be a verified application
establish the pre-existing relationship between 2. The applicant must establish that:
them. a. He has a right to relief or a right to
be protected and
TRO v. Injunction b. The act against which the
injunction is sought violates such
right
c. There is a need to restrain the
TRO
Injunction commission or continuance of the
acts complained of and if not
May be granted ex
enjoined would work injustice to
parte if great and Cannot be granted
him
irreparable injury without notice and
3. A bond must be posted unless
would result hearing
otherwise exempted by the court
otherwise
4. The threatened injury must be
incapable of pecuniary estimation
A TRO is issued in order to preserve the status
5. Prior notice and hearing for
quo until the hearing of the application for
party/person sought to enjoined
preliminary injunction. [Bacolod City Water v.
(except in 72-hour TROs)
Labayen (2004)]
143

KINDS OF INJUNCTION When mandatory injunction does not lie;

Kinds of Injunction:
1. Preliminary Preventive Injunction
Prohibits the performance of a
particular act or acts
2. Preliminary Mandatory Injunction
Requires the performance of a
particular act or acts. This is an extreme
remedy which will be granted only on
showing that:
a. The invasion of the right is material
and substantial
b. Right of complainant is clear and
unmistakable
c. There is an urgent and paramount
necessity
examples
1. To compel cohabitation [Arroyo v.
Vasquez (1921)]
2. Cancellation of attachment [Levy
Hermanos v. Lacson (1940)]
3. Release imported goods pending
hearing before the Commissioner of
Customs. [Commissioner of Customs v.
Cloribel (1967)]
4. To take property out of the possession
or control of one party and place it into
that of another whose title has not
clearly been established [Pio v. Marcos
(1974)]
WHEN WRIT MAY BE ISSUED

PRELIMINARY PRELIMINARY When: It may be issued at ANY stage PRIOR to

PROHIBITORY MANDATORY
INJUNCTION INJUNCTION
Purpose is to prevent
Purpose is to require
a person from the
a person to perform a
performance of a
particular act
particular act
The act has already
The act had not yet been performed and
been performed this act has violated
the rights of another
Status Quo is
Status Quo is restored
preserved
When preventive injunction does not lie;
examples:
1. To restrain collection of taxes [Valley
Trading v. CA](1989), except where
there are special circumstances that
bear the existence of irreparable injury.
[Churchill & Tait v. Rafferty (1915)]
2. To restrain the sale of conjugal
properties where the claim can be
annotated on the title as a lien, such as
the husbands obligation to give
support. [Saavedra v. Estrada (1931)]
3. To restrain a mayor proclaimed as duly
elected from assuming his office.
[Cereno v. Dictado (1988)]
4. To restrain registered owners of the
property from selling, disposing and
encumbering their property just
because the respondents had executed
Deeds of Assignment in favor of
petitioner. [Tayag v. Lacson (2004)]
5. Against consummated acts. [PNB v. Adi
(1982); Rivera v. Florendo (1986);
Ramos, Sr. v. CA (1989)]
the judgment or final order
Who: It may be granted by the court where the
action or proceeding is pending. If the action or
proceeding is pending in the Court of Appeals or
in the Supreme Court, it may be issued by said
court or any member thereof. (Rule 58, Sec. 2)
GROUNDS FOR THE ISSUANCE OF
PRELIMINARY INJUNCTION (Rule 58, Sec. 3)
Preliminary injunction may be granted when it is
established that:
1. Applicant is entitled to the relief
demanded, or
2. Commission, continuance, or non-
performance of the act complained of
would work injustice to applicant, or
3. Party, court, agency or a person is
doing, threatening, or is attempting to
do, or is procuring or suffering to be
done, some act or acts probably in
violation of the rights of the applicant
respecting the subject of the action or
proceeding
GROUNDS FOR OBJECTION TO, OR FOR
MOTION OF DISSOLUTION OF, INJUNCTION
OR RESTRAINING ORDR (Rule 58, Sec. 6)
Grounds for objection or dissolution
1. Upon showing of its insufficiency
2. Other grounds upon affidavits of the
party or person enjoined. This may be
opposed by the applicant by affidavits
144
3. If it appears after hearing that although
applicant is entitled to injunction or
TRO, the issuance or continuance
thereof, would cause irreparable
damage to party enjoined while
applicant can be fully compensated for
such damages as he may suffer
a. PROVIDED that he files a bond
(1) Amount to be fixed by the court
(2) Conditioned that he will pay all
damages which the applicant
may suffer by denial or
dissolution of the injunction or
TRO
If it appears that the extent of the preliminary
injunction or restraining order granted is too
great, it may be modified.
TEMPORARY RESTRAINING ORDER (TRO)
General Rule: Before preliminary injunction may
be granted, there must be prior notice to person
sought to be enjoined and there must be a
hearing
Procedure: When an application for a writ of
preliminary injunction or TRO is included in a
complaint or initiatory pleading, the case, if filed
in a multiple-sala, shall proceed as follows:
1. Verified complaint and bond is filed
2. Determine if there is great or
irreparable injury or extreme urgency,
which warrants the issuance of a TRO
a. If yes, go to Procedure for Issuance
of TRO
3. In both cases, Notice shall then be
served to the party sought to be
enjoined
(a) There must be prior and
contemporaneous service of
summons (exceptions also apply)
Procedure for Issuance of TRO:
1. If it appears that great or irreparable
injury would result to the applicant
before the matter can be heard on
notice:
a. Summary hearing on the
application of the TRO within 24
hours after sheriffs return of
service and/or records are received
by the branch selected by raffle
b. The court may issue a TRO effective
for 20 days from service on the
party sought to be enjoined
Within the 20 day period:
(1) The applicant must show cause
why injunction should not be
granted
(2) The court will determine WON
the preliminary injunction shall
be granted. If granted, the court
will issue the corresponding
order
2. If the matter is of extreme urgency and
the applicant will suffer grave injustice
and irreparable injury
a. A TRO may be issued ex parte (after
raffling of case) ordered by the
Executive judge of a multiple sala
court or the presiding judge of a
single-sala court
b. Effective for 72 hours from
issuance
(1) The applicant must then
immediately comply with Sec. 4
as to service of summons and
documents
(2) The Executive Judge shall then
summon the parties to a
conference and raffle the case
in their presence
Within the 72-hr period
(1) The Presiding Judge before
whom the case is pending shall
conduct a summary hearing to
determine whether the TRO
shall be extended until
application for preliminary
injunction can be heard
(2) In no case shall the total period
of effectivity of the TRO exceed
20 days, including the original
72 hours
Effectivity of TRO
1. Effectivity is not extendible. No court
shall have authority to extend or renew
the same on the ground for which it was
issued
2. If issued by the CA effective for 60
days from service
3. If issued by SC effective until further
orders
TRO ISSUED BY
EXECUTIVE JUDGE
TRO ISSUED BY
(MULTI-SALA) OR
ORDINARY JUDGE
ORDINARY JUDGE
(SINGLE-SALA)
Matter is of extreme If it appears that great
urgency and that or irreparable injury
grave injustice and would result
145
irreparable injury will
arise unless
immediately issued
A summary hearing
May be issued ex
must be done before
parte
issuance
Good for 20 days
Good for 72 hours including first 72
hours
Issued before raffling Issued after raffling
Issued after summary
Issued ex parte
hearing
Upon the expiration of the non-extendible
period, the TRO is automatically terminated. No
judicial declaration necessary.
IN RELATION TO RA 8975, BAN ON ISSUANCE
OF TRO OR WRIT OF INJUNCTION IN CASES
INVOLVING GOVERNMENT
INFRASTRUCTURE PROJECTS
Sec. 3, RA 8975: No court, except the Supreme
Court, shall issue any TRO, preliminary
injunction or preliminary mandatory injunction
against the government, or any of its
subdivisions, officials or any person or entity,
whether public or private acting under the
government direction, to restrain, prohibit or
compel the following acts:
1. Acquisition, clearance and development
of the right-of-way and/or site or
location of any national government
project
2. Bidding or awarding of contract/
project of the national government as
defined under Section 2 hereof;
3. Commencement prosecution, execution,
implementation, operation of any such
contract or project;
4. Termination or rescission of any such
contract/project; and
5. The undertaking or authorization of any
other lawful activity necessary for such
contract/project.
This prohibition shall apply in all cases, disputes
or controversies instituted by a private party,
including but not limited to cases filed by
bidders or those claiming to have rights through
such bidders involving such contract/project.
This prohibition shall NOT APPLY when the
matter is of extreme urgency involving a
constitutional issue, such that unless a
temporary restraining order is issued, grave
injustice and irreparable injury will arise. The
applicant shall file a bond, in an amount to be
fixed by the court, which bond shall accrue in
favor of the government if the court should
finally decide that the applicant was not entitled
to the relief sought.
Any TRO, preliminary injunction, or preliminary
mandatory injunction issued in violation of Sec.
3 is void and of no force and effect. [Sec 4]
RULE ON PRIOR OR CONTEMPORANEOUS
SERVICE OF SUMMONS IN RELATION TO
ATTACHMENT
When an application for a writ of preliminary
injunction or a temporary restraining order is
included in a complaint or any initiatory
pleading, the case, if filed in a multiple-sala
court, shall be raffled only after notice to and in
the presence of the adverse party or the person
to be enjoined. In any event, such notice shall be
preceded, or contemporaneously accompanied,
by service of summons, together with a copy of
the complaint or initiatory pleading and the
applicant's affidavit and bond, upon the adverse
party in the Philippines.
Exception:
Where the summons could not be served
personally or by substituted service despite
diligent efforts, or the adverse party is a resident
of the Philippines temporarily absent therefrom
or is a nonresident thereof, the requirement of
prior or contemporaneous service of summons
shall not apply. [Rule 58, Sec.4] The executive
judge of a multiple-sala court or the presiding
judge of a single sala court may issue ex parte a
TRO effective for only 72 hours from issuance if
the matter is of extreme urgency and the
applicant will suffer grave injustice and
irreparable injury. However, he shall
immediately comply with the provisions of Rule
38, Sec. 4 as to service of summons and the
documents to be served therewith. [Rule 38, Sec.
5]
WHEN FINAL INJUNCTION GRANTED
If after the trial of the action it appears that the
applicant is entitled to have the act or acts
complained of permanently enjoined, the court
shall grant a final injunction perpetually
restraining the party or person enjoined from
the commission or continuance of the act or acts
or confirming the preliminary mandatory
injunction. (Rule 58, Sec. 9)
146
RECEIVERSHIP
NATURE
Receiver A person appointed by the court in
behalf of all the parties to the action for the
purpose of preserving and conserving the
property in litigation and prevent its possible
destruction or dissipation if it were left in the
possession of any of the parties.
Purpose
The purpose of a receivership as a provisional
remedy is to protect and preserve the rights of
the parties during the pendency of the main
action, during the pendency of an appeal or as
an aid in the execution of a judgment when the
writ of execution has been returned unsatisfied.
The receivership under Rule 59 is directed to
the property which is the subject of the action
and does not refer to the receivership
authorized under banking laws and other rules
or laws. Rule 59 presupposes that there is an
action and that the property subject of the
action requires its preservation. Receivership
under Rule 59 is ancillary to the main action.
(Riano).
The guiding principle is the prevention of
imminent danger to the property. If an action by
its nature, does not require such protection or
preservation, said remedy cannot be applied for
and granted. (Commodities Storage v. CA, 1997)
CASES WHEN RECEIVER MAY BE APPOINTED
(Rule 59, Sec. 1)
1. When it appears from the verified
application and other proof that the
applicant has an interest in the property
or fund which is the subject of the
action or proceeding, and that such
property or 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 a
mortgage that the property is in danger
of being wasted or 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 contract of
mortgage;
3. After judgment, to preserve the
property during the pendency of an
appeal, or to dispose of it according to
the judgment, or to aid execution when
the execution has been returned
unsatisfied or the judgment obligor
refuses to apply his property in
satisfaction of the judgment, or
otherwise to 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 the property in litigation.
Specific cases where receiver was appointed
1. If a spouse without just cause abandons
the other or fails to comply with his/her
obligations to the family, the aggrieved
spouse may petition the court for
receivership. [Family Code, Article 101]
2. The court may appoint a receiver of the
property of the judgment obligor; and it
may also forbid a transfer or other
disposition of, or any interference with,
the property of the judgment obligor
not exempt from execution. [Rule 39,
Sec. 41]
3. After the perfection of an appeal, the
trial court retains jurisdiction to
appoint a receiver of the property
under litigation since this matter does
not touch upon the subject of the
appeal. [Rule 41, Sec. 9; Acua v. Caluag
(1957)]
4. After final judgment, a receiver may be
appointed as an aid to the execution of
judgment. [Philippine Trust Company v.
Santamaria (1929)]
5. Appointment of a receiver over the
property in custodia legis may be
allowed when it is justified by special
circumstances, as when it is reasonably
necessary to secure and protect the
rights of the real owner. [Dolar v.
Sundiam (1971)]
REQUISITES; REQUIREMENTS BEFORE
ISSUANCE OF AN ORDER
Procedure:
1. Verified application filed by the party
requesting for the appointment of the
receiver;
2. Applicant must have an interest in the
property or funds subject of the action;
147
3. Applicant must show that the property
or funds is in danger of being lost,
wasted, or dissipated;
4. Application must be with notice and
must be set for hearing;
5. Before appointing a receiver, the court
shall require applicant to post a bond in
favor of the adverse party. When the
receiver is appointed, the receiver shall
file a bond then take his oath.
6. Before entering upon his duties, the
receiver must be sworn to perform his
duties faithfully.
Who Appoints Receiver:
1. Court where the action is pending
2. CA
3. SC
4. During the pendency of an appeal, the
appellate court may allow an
application for the appointment of a
receiver to be filed in and decided by
the court of origin. [Rule 59, Sec. 1]
Receivership may be denied or lifted:
1. If the appointment was sought or
granted without sufficient cause (Sec. 3)
2. Adverse party files a sufficient bond to
answer for damages (Sec. 3)
3. Bond posted by applicant for grant of
receivership is insufficient (Sec. 5)
4. Bond of the receiver is insufficient (Sec.
5)
THE RECEIVER
Who May Be Appointed As Receiver
The general rule is that neither party to the
litigation should be appointed as a receiver
without the consent of the other because a
receiver is supposed to be an impartial and
disinterested person. (Alcantara v. Abbas, 1963)
A clerk of court should not be appointed as a
receiver as he is already burdened with his
official duties. (Arigo v. Kayanan, 1983)
Powers of a Receiver
1. Bring and defend in such capacity
actions in his own name with leave of
court
2. Take and keep possession of the
property in controversy
3. Receive rents
4. Collect debts due to himself as receiver
or to the fund, property, estate, person,
or corporation of which he is the
receiver
5. Compound for and compromise the
same
6. Make transfers
7. Pay outstanding debts
8. Divide the money and other property
that shall remain among the persons
legally entitled to receive the same
9. Generally, to do such acts respecting the
property as the court may authorize
10. Invest funds in his hands, ONLY by
order of the court upon the written
consent of all the parties. [Rule 59, Sec.
6]
Liability for refusal or neglect to deliver property
to receiver:
1. Contempt; and
2. Be liable to the receiver for the money
or the value of the property and other
things so refused or neglected to be
surrendered together with all damages
that may have been sustained by the
party or parties entitled thereto as a
consequence of such refusal or neglect.
[Rule 59, Sec. 7]
Remedies Against the Receiver
1. No action against receiver can be
maintained without leave of court
2. An aggrieved party may:
a. Take the matter into the court
which appointed the receiver and
ask either for an accounting or take
some other proceeding, and ask for
consequent judgment on the acts
complained of; or
b. Ask for leave of court to bring him
an action directly
TWO KINDS OF BOND
The Applicants Bond
1. Applicant must file a bond executed to
the party against whom the application
is presented
a. Amount to be fixed by the court
b. CONDITION: To the effect that
applicant will pay such party all
damages he may sustain by reason
of the appointment IN CASE the
applicant shall have procured such
without sufficient cause
2. The court may require additional bond
after appointment in the exercise of its
discretion as further security for such
damages (Rule 59, Sec. 2)
148

The Receivers Bond

1. As a precondition before entering into
his duties, receiver must file a bond
2. The bond is executed to such person
and in such sum as the court may direct
3. CONDITION: To the effect that he will
faithfully discharge his duties and obey
the orders of the court (Rule 59, Sec. 4)

DAMAGES DAMAGES ARISING

RESULTING FROM AFTER
APPOINTMENT APPOINTMENT
Damages which arise
Damages resulting due to receivers
from appointment negligence or
mismanagement
The right rests on
The right is statutory general principles of
law
The damages may be
caused before the Liability rests on the
receiver qualifies or mismanagement or
takes possession of negligence of receiver
the property
The applicants bond The receivers bond is
is responsible responsible

TERMINATION OF RECEIVERSHIP

Ground: The necessity for a receiver no longer

exists

Procedure:
1. The court shall determine that the
necessity for a receiver no longer exists
a. Motu proprio, or on motion of
either party
2. Due notice shall be given to all
interested parties
3. A hearing shall be conducted
4. The court shall then settle the accounts
of the receiver
5. The court directs delivery of the funds
and other property in his possession to
the person adjudged to be entitled to
receive them
6. The court will then order the discharge
of the receiver

Effect:
1. Settle accounts of receiver
2. Delivery of funds to person entitled
3. Discharge of receiver
4. Receiver entitled to reasonable
compensation to be taxed as costs
against defeated party
149

REPLEVIN of concealed, removed, or

disposed of to prevent
NATURE its being found or
taken by the applicant
Replevin is the provisional remedy seeking for
the possession of the property prior to the NOTE: There can be no replevin and preliminary
determination of the main action for replevin. attachment in the same case because the
purposes are different.
Replevin may also be a main action with the 1. In Rule 57, it is for security
ultimate goal of recovering personal property 2. In Rule 60, it is for recovery of
capable of manual delivery wrongfully detained possession
by a person. In this sense, it is a suit in itself

WRIT OF PRELIMINAY
WRIT OF REPLEVIN WHEN MAY WRIT BE ISSUED
ATTACHMENT
The purpose is to have
the property put in the When Applied For A writ of replevin must be
The purpose is to applied for:
custody of the court to
recover personal 1. At the commencement of the action, or
secure the satisfaction
property capable of 2. At any time before defendant files his
of the judgment that
manual delivery from answer
may be rendered in
the defendant
favor of the plaintiff at
some future time NOTE: There can be no replevin before the
The property either appellate courts
belongs to the
The property does not The provisional remedy of replevin is available
plaintiff or one over
belong to the plaintiff where the PRINCIPAL PURPOSE of the action is
which the plaintiff
but to the defendant to recover the possession of PERSONAL
has a right of
possession property.
May be sought only
Available even if Who May Avail of the Remedy?
when the principal
recovery of property is 1. Plaintiff where the complaint prays
action is for the
only incidental to the for recovery of possession of personal
recovery of personal
relief sought property
property
Can be sought only 2. Defendant where a counterclaim was
when defendant is in May be resorted to set out in the answer for recovery of
actual or even if property is in personal property
constructive possession of a third
possession of the person It is available to any other party asserting
property affirmative allegations praying for the
Cannot be availed of Can be availed of even recovery of personal property unjustly
when property is in if property is in detained.
custodia legis custodia legis
Available from
Available before commencement but REQUISITES
defendant answers before entry of
judgment 1. Applicant is owner of the property
claimed or is entitled to possession
Bond is double the Bond is fixed by the
2. Property is wrongfully detained by the
value of the property court
adverse party
Extends only to Extends to all kinds of
3. Property is not distrained or taken for
personal property property whether real,
tax assessment or fine pursuant to law,
capable of manual personal, or
or seized (if seized, that the property is
delivery incorporeal
exempt)
Available to recover Attachment to recover
4. Principal purpose of the action is to
personal property possession of personal
recover possession of personal property
even if the same is property unjustly
not being concealed, detained presupposes
removed, or disposed that the same is being
PROCEDURE (Rule 60, Sec. 2 and 3)
150
1. An application is filed at the
commencement of the action or at any
time before answer of defendant
2. Application must contain an affidavit
3. Applicant must file a bond
4. Approval of the bond by the court
5. Court shall then issue an order and the
writ of replevin:
a. It must describe the personal
property alleged to be wrongfully
detained
b. Requiring the sheriff to take such
property into his custody
NOTE: The writ of replevin may be served
anywhere in the Philippines.
AFFIDAVIT AND BOND; REDELIVERY BOND
Contents of the Affidavit
1. That the applicant is:
a. The owner of the property claimed
describe with particularity
b. Or is entitled to possession
2. Property is wrongfully detained by
adverse party
a. Allege the cause of detention
b. According to his best knowledge,
information, belief
3. That the property has not been :
a. Distrained, or
b. Taken for a tax assessment, or
c. Taken as a fine pursuant to law, or
d. Seized under a writ of execution or
preliminary attachment, or under
custodia legis; if so taken, that said
property is exempt
4. The affidavit must also state the actual
value of the property subject of replevin
and not just its probable value. This
value will be the basis of the bond.
The Applicants Bond
1. Executed to the adverse party
2. Amount is DOUBLE the value of the
property stated in the affidavit
3. Conditions of the Bond:
a. The return to of property to
adverse party, if such return be
adjudged, and
b. The payment to adverse party of
such sum as he may recover from
the applicant in the action
Return of Property (Sec. 5)
1. If the adverse party objects to the
sufficiency of the bond, he cannot
immediately require the return of the
property even by counterbond.
2. If the adverse party DOES NOT object to
the sufficiency of the bond, he may
require the return of the property
a. When: At any time before delivery
to applicant
b. How: By filing a redelivery bond
The Redelivery Bond
1. This is executed to the applicant and
filed where the action is pending
2. Amount is double the value of the
property as stated in the affidavit of the
applicant
3. Conditions of the Bond:
a. The delivery thereof to the
applicant, if such delivery be
adjudged, and
b. The payment of such sum to him as
may be recovered against the
adverse party
SHERIFFS DUTY IN THE IMPLEMENTATION
OF THE WRIT
Duties of the Sheriff (Rule 60, Sec. 4)
1. Serve a copy of the order, together with
the copies of the application, the
affidavit, and bond to the adverse party
2. Take the property:
a. If it be in the possession of the
adverse party or his agent Take
the property into custody
b. If property is concealed in a
building or enclosure:
(1) Demand delivery of the
property
(2) If not delivered, cause the
building or enclosure to be
broken open and then take the
property into possession
3. After taking possession:
a. Keep the property in a secure place
b. He shall be responsible for delivery
to party entitled
Unlike a preliminary attachment and
preliminary injunction, the rule on prior or
contemporaneous jurisdiction is not provided
for in replevin.
151

bond UNLESS the action is filed within 120 days

However, the rule requires that upon such
order, the sheriff must serve a copy on the
adverse party together with the required
documents.
A sheriffs prerogative does not give him the
liberty to determine who among the parties is
entitled to possession.
When a writ is placed in the hands of a sheriff, it
is his duty to proceed with reasonable celerity
and promptness to execute it according to its
mandate.
from filing of the bond.
The procedure in Rule 60, Sec. 7 is similar to
that in third-party claims in execution (Sec. 16,
Rule 39) and in attachment (Sec. 14, Rule 57).
Difference in Service of Affidavits:
1. Sec. 14, Rule 57 affidavit is served
upon the sheriff while he has
possession of the attached property
2. Sec. 7, Rule 60 affidavit is served
within 5 days in which sheriff has
possession (in connection with Sec. 6)

DISPOSITION OF PROPERTY BY SHERIFF JUDGMENT (Rule 60, Sec. 9)

(Rule 60, Sec. 6)
The adverse party is entitled to the return of the
property taken under writ of replevin, if:
1. He seasonably posts a redelivery bond
2. The applicants bond is found to be
insufficient or defective and is not
replaced with a proper bond
3. The property is not delivered to the
plaintiff for any reason
After trial of the issues, the court shall
determine who has the right of possession to
and the value of the property and shall render
judgment in the alternative for the delivery
thereof to the party entitled to the same, or for
its value in case delivery cannot be made, and
also for such damages as either party may prove,
with costs.

The sheriff shall retain the property for 5 days;

Within such period, the adverse party:
1. May object to the sufficiency of the
applicants bond or surety; or
2. May file a redelivery bond, if he does
not object to the sufficiency of the bond

NOTE: These remedies are alternative.

WHEN PROPERTY IS CLAIMED BY THIRD

PARTY

When third party claims the property and such

person makes affidavit of his title thereto stating
his grounds, and serves such affidavit upon the
sheriff while the latter has possession of the
property and a copy upon the applicant, the
sheriff SHALL NOT BE BOUND to keep property
under replevin or deliver property to the
applicant UNLESS the applicant files a bond
approved by the court in favor of the third
person (the bond should not be less than the
value of stated under Sec. 60, Sec. 2; the court
shall determine the value in case of
disagreement).

No claim for damages for the taking or keeping

of the property may be enforced against the
152
A COMPARATIVE CHART ON THE PROVISIONAL REMEDIES
Preliminary Attachment
To have the property of adverse party
attached as security for satisfaction of
judgment that may be recovered in
cases falling under Sec. 1, Rule 57
To enable the court to acquire
PURPOSE
jurisdiction over the action by the actual
or constructive seizure of the property
in those instances where personal
service of summons on creditor cannot
be effected
SUBJECT
Personal or real property
MATTER
At the commencement of action
WHEN APPLIED/
OR `At any time prior to entry of
GRANTED
judgment
HOW APPLIED FOR File affidavits and applicants bond
REQUIREMENT Not required
OF A HEARING May be issued ex parte
Courts where the action is pending, the
WHO MAY GRANT CA or the SC even if action is pending in
lower court
REQUISITES FOR 1. Sufficient cause of action
GRANTING 2. Case is covered by Sec. 1, Rule 57
APPLICATION 3. No other sufficient security for the
Preliminary Injunction
To require a party or a court, agency, or
a person to reframe from doing a
particular act/s
Or to require the performance of
particular act/s
Particular act/s
At any stage prior to final judgment or
final order
File verified application and applicants
bond
If application is included in initiatory
pleading, adverse party should be
served with summons together with a
copy of initiatory pleading and
applicants bond
Required
EXCEPT:
Great or irreparable injury would result
or Extreme urgency and applicant will
suffer grave injustice and irreparable
injury (Sec. 5, Rule 58
Only the court where the action is
pending
Lower court, CA or SC provided action is
pending in the same court which issues
the injunction
Also with the Sandiganbayan and CTA
1. Applicant is entitled to relief
demanded
2. Act/s complained of would work
Receivership Replevin
To place the property subject of an
auction or proceeding under the control
To recover possession of personal
of a third party for its preservation and
property
administration pendente lite or as an
aid to execution
Personal property capable of manual
Personal or real property
delivery
At any time prior to satisfaction of
judgment At the commencement of the action
It may be availed of even after judgment BUT before the filing of answer
becomes final under Sec. 41, Rule 39
File verified application and applicants
bond
Application may also be included in File affidavits and applicants bond
initiatory pleading in actions for
foreclosure of mortgage
Not Required
Required
May be issued ex parte
Court where action is pending
The CA or SC even if action is pending in
the lower court
Only the court were action is pending
Appellate court may allow application
for receivership to be decided by the
court of origin
1. Applicant has interest in property or 1. Applicant is owner of the property
fund, subject matter of action claimed or is entitled to possession
2. Property or fund is in danger of 2. Property is wrongfully detained by
153
claim exists
4. Amount due to applicant or value of
property he is entitled to recover is
equal to the sum which the order of
attachment is granted
injustice to applicant if not enjoined
3. Acts sought to be enjoined probably
violates applicants rights respecting
the subject of the action or
proceeding
4. Threatened injury incapable of
pecuniary estimation
being lost, or removed, or material
injured
3. Appointment is the most convenient
and feasible means of preserving,
administering, disposing of
property in litigation
the adverse party
3. Property is not distrained or taken
for tax assessment or fine pursuant
to law, or seized (if seized, that the
property is exempt)
154

SPECIAL CIVIL
MTC (e.g. certiorari,
prohibition,
mandamus)

ACTIONS They are

denominated as
Some special civil
actions are initiated
complaints when
by petitions
filed
IN GENERAL
NATURE JURISDICTION AND VENUE

Since a civil action in general is one by which a The Special Civil Actions (SCA) under the Rules of
party sues another for the enforcement of a Court
right, or the prevention or redress of a wrong, a 1. SCAs initiated by complaints:
special civil action is generally brought or filed a. Interpleader
for the same purpose. [Riano] b. Foreclosure of Real Estate
Mortgage
c. Forcible Entry and Unlawful
ORDINARY CIVIL ACTIONS v. SPECIAL CIVIL Detainer
ACTIONS d. Partition
e. Expropriation
A special civil action is governed by the rules of
ordinary civil actions but there are certain rules 2. SCAs initiated by petitions:
that are applicable only to special civil actions. a. Declaratory Relief
b. Review or Adjudication of
ORDINARY CIVIL SPECIAL CIVIL COMELEC/COA Decisions
ACTION ACTION c. Certiorari
Also governed by d. Prohibition
Governed by ordinary ordinary rules but e. Mandamus
rules subject to specific f. Quo Warranto
rules prescribed g. Contempt
Formal demand of
ones legal rights in a The venue of special civil actions is governed by
Special features not the general rules on venue EXCEPT as otherwise
court of justice in the
found in ordinary civil indicated in the particular rule for said special
manner prescribed by
actions action.
the court or by the
law
Must be based on a The concept of cause Actions for certiorari, prohibition and
cause of action which of action in an mandamus should be commenced in the proper
means that the ordinary action does RTC, but the same may, in proper cases, be
defendant has not always fit in a commenced in the SC or the CA and a specific
violated plaintiffs special civil action rule of venue is provided for quo warranto
rights (e.g. interpleader) proceedings
Venue is determined
This dichotomy does In the absence of special reasons, the SC will
by either the
not always apply in a decline original jurisdiction in certiorari,
residences of the
special civil action prohibition, and mandamus since it is not a trier
parties when action is
(e.g. the venue in a of facts and, that is a function which can be
personal or by the
petition for quo- better done by the trial courts. The same rule
location of the
warranto is where the applies for quo warranto wherein the SC has
property when the
SC or CA sits) concurrent jurisdiction with the RTC.
action is real
There are special civil
actions which can be Special civil actions that can be filed in or are
filed with the MTC within the jurisdiction of inferior courts:
May be filed initially 1. Interpleader -- Provided that amount
(e.g. forcible entry and
in either the MTC or involved is within its jurisdiction
unlawful detainer)
RTC 2. Ejectment suits
There are also those
which cannot be 3. Contempt
commenced in the
155
INTERPLEADER
NATURE
Definition - A remedy whereby a person who has
property in his possession or has an obligation
to render wholly or partially, without claiming
any right in both, comes to court and asks that
the defendants who have made conflicting
claims upon the same property or who consider
themselves entitled to demand compliance with
the obligation be required to litigate among
themselves in order to determine who is entitled
to the property or payment or the obligation
[Beltran v. PHHC, (1969)]
The peculiar characteristic of an interpleader is
that there is NO CAUSE OF ACTION on the part
of the plaintiff but only a threat of cause of
action.
Purposes
1. To compel conflicting claimants to
interplead and litigate their several
claims among themselves. [Rule 62, Sec.
1]
2. To protect a person against double
vexation in respect of one liability
[Beltran, supra]
REQUISITES FOR INTERPLEADER
1. The plaintiff clams no interest in the
subject matter or his claim thereto is
not disputed
2. The parties to be interpleaded must
make effective claims
3. There must be at least 2 or more
conflicting claimants with adverse or
conflicting interests to a property in
custody or possession of the plaintiff;
and
4. The subject matter must be one and the
same
NOTE: Interpleader applies regardless of nature
of subject matter.
Cannot be availed of to resolve the issue of
breach of undertakings made by defendants,
which should be resolved in an ordinary action
for specific performance or other relief [Beltran,
supra].
WHEN TO FILE
Who Files the Complaint - A complaint for
interpleader is filed by the person against whom
the conflicting claims are made
When to File - REASONABLE TIME
An action for interpleader should be filed within
a reasonable time after a dispute has arisen
without waiting to be sued by either of the
contending parties. Otherwise, it may be barred
by laches or undue delay.
Jurisdiction and Venue General rules on
jurisdiction and venue apply as in ordinary civil
actions.
PROCEDURE
1. A complaint is filed.
2. Upon filing of complaint, the court
issues an Order (Sec. 2) requiring
conflictng claimants to interplead with
one another
3. Summons shall then be served upon the
conflicting claimants with a copy of the
complaint and the order to interplead
(Sec. 3).
4. Each claimant has a 15-day period to
file: (Sec. 4)
a. An answer
b. A motion to dismiss. If filed, period
to answer is filed
a. Grounds:
(1) Same as in Rule 16
(2) Impropriety of
interpleader action
b. If motion is denied, movant
may file his answer within the
remaining period but it shall
not be less than 5 days in any
event from notice of denial
5. From service of Answer, the claimants
may file their Reply serving copies to all
parties. Parties may file counterclaims,
cross-claims, third-party complaints,
responsive pleadings
EFFECT OF FAILURE TO ANSWER:
Default.
a. The claimant may be declared, on
motion, in default
b. Unlike ordinary default, default in
interpleader allows the court to
render judgment barring him from
156
any claim in respect to the subject
matter
6. Pre-trial is conducted.
7. After all pleadings have been fled, the
court shall then determine the
respective rights and adjudicate their
several claims (Sec. 6)
DECLARATORY RELIEFS AND
SIMILAR REMEDIES
NATURE
In Declaratory Relief, the subject matter is a
deed, will, contract, or other written instrument,
statute, executive order, or regulation, or
ordinance;
Note: The enumeration of the subject
matter is EXCLUSIVE
Issue is the validity or construction of the subject
matter
Relief: declaration of the petitioners rights and
duties
Purpose: To relieve the litigants of the common
law rule that no declaration of rights may be
judicially adjudged unless a right has been
violated and for the violation of which relief may
be granted.
Characteristics
1. The concept of a cause of action is not
applicable to declaratory relief since
this SCA presupposes that there has
been no breach or violation of the
2. instruments involved
3. Unlike other judgments, judgment in an
action for declaratory relief does not
essentially entail any execution process
WHO MAY FILE THE ACTION (Rule 63, Sec. 1)
1. Any person interested under a deed,
will, contract or other written
instrument
a. He must file before breach
2. Any person whose rights are affected by
a statute, executive order or regulation,
or ordinance, or any other
governmental regulation
a. He must file before violation
PARTIES
1. All persons who have or claim any
interest which would be affected by the
declaration [Rule 63, Sec. 2]
2. If action involves the validity of a
statute/executive
order/regulation/other governmental
157
regulation, the Solicitor General shall be
notified. [Rule 63, Sec. 3]
3. If action involves the validity of a local
government ordinance, the
prosecutor/attorney of the LGU
involved shall be notified. [Rule 63, Sec.
4]
Non-joinder of interested persons is not a
jurisdictional defect; but persons not joined
shall not be prejudiced in their interests unless
otherwise provided by the Rules. (Baguio
Citizens Action v. City Council of Baguio, 1983)
WHERE TO FILE
It is filed In the appropriate RTC (incapable of
pecuniary estimation)
Original jurisdiction of a petition for declaratory
relief is with the RTC.
REQUISITES OF ACTION FOR DECLARATORY
RELIEF
1. Subject matter of controversy must be a
deed, will, contract, or other written
instrument, statute, executive order or
regulation, or ordinance. (Enumeration
is exclusive)
2. Actual justiciable controversy or
ripening seeds of one between person
whose interests are adverse
3. No breach of documents in question
4. Doubtful as to the terms and validity of
the document and require judicial
construction
5. Issue is ripe for judicial determination,
as where all administrative remedies
have been exhausted
6. Adequate relief is not available through
other means or other forms of action or
proceeding
WHEN COURT MAY REFUSE TO MAKE
JUDICIAL DECLARATION
Court has DISCRETION to REFUSE to Grant
Declaratory Relief when: (Rule 63, Sec. 5)
1. The decision will not terminate the
controversy or uncertainty giving rise
to the action; or
2. The declaration or constitution is not
necessary and proper under the
circumstances
How Done: Motu proprio, or on motion
CONVERSION TO ORDINARY ACTION (Rule 63,
Sec. 6)
When proper: If before the final termination of
the case, a breach or violation of the instrument
or status occurs. Then, petition is converted into
an ordinary action
Effect of Conversion: Parties shall be allowed to
file such pleadings as may be necessary or
proper
NOTE: If there has been breach or violation
BEFORE filing of the petition, declaratory relief
cannot be availed of.
PROCEEDINGS CONSIDERED AS SIMILAR
REMEDIES
Actions similar to Declaratory Relief and may be
brought under Rule 63: (may be filed with the
MTC)
1. Action for reformation (See Art. 1359-
1369 Civil Code)
2. Action to quiet title or remove cloud
(See Art. 476-481 Civil Code)
3. Action to consolidate ownership (See
Art. 1607 Civil Code)
These remedies are considered similar to
declaratory relief because they also result in the
adjudication of the legal rights of the litigants
often without the need of execution to carry the
judgment into effect
However we must make a distinction:
1. In those cases similar to declaratory
relief, the court is BOUND to render
judgment
2. In actions for declaratory relief, the
court MAY REFUSE to exercise the
power to declare rights and to construe
instruments
158

REVIEW OF JUDGMENTS AND FINAL a. It may dismiss the petition:

ORDERS OR RESOLUTION OF THE (1) Failure to comply with the form
and content requirements in
COMELEC AND COA Sec. 5
(2) If SC finds the petition
insufficient in form and
SCOPE (Rule 64, Sec. 1) substance (Sec. 6)
(3) If it was filed manifestly for
Applicable only to judgments and final orders of delay (Sec. 6)
the COMELEC and COA [Rule 64, Sec. 1] (4) Questions raised are too
unsubstantial to warrant
Judgments/orders of the Civil Service proceedings (Sec. 6)
Commission are now reviewable by the Court of b. If sufficient in form and substance,
Appeals under Rule 43, eliminating recourse to the SC will require the respondents
the Supreme Court (SC). [RA 7902; SC Revised to file their Comments (Sec. 6)
Administrative Circular No. 1-95] within 10 days from notice
4. SC may also require oral argument or
An aggrieved party may bring the questioned submission of memoranda (Sec. 9)
judgment, etc. directly to the SC on certiorari 5. The case is then submitted for decision
under Rule 65. [Rule 64, Sec. 2] (Sec. 9)
Basis: This new rule is based on the provisions
of Art. IX-A, 1987 Constitution regarding the DISTINCTION IN THE APPLICATION OF RULE
three constitutional commissions provided for 65 TO JUDGMENTS OF THE COMELEC AND
therein. COA AND THE APPLICATION OF RULE 65 TO
OTHER TRIBUNALS, PERSONS, AND OFFICERS
APPLICATION OF RULE 65 UNDER RULE 64
Rule 64
The aggrieved party may bring a judgment or Rule 65
final order or resolution of the COMELEC and
Directed to any
COA to the SC on certiorari under Rule 65 and Directed only to the
tribunal, board, or
not on appeal by certiorari under Rule 45 judgments, final
officer exercising
orders or resolutions
judicial or quasi-
NOTE: The petition should be filed EXCLUSIVELY with of COMELEC and COA
the SC
judicial functions
Filed within 30 days Filed within 60 days
Unlike in Rule 65, petition should be filed within from notice of the from notice of the
30 days from notice of judgment or final order judgment judgment
or resolution sought to be reviewed. The filing of a MR or a
Motion for New Trial if
Filing of MFR or MNT, if allowed under the allowed, interrupts the
procedural rules of the Commission, shall period for the filing of
The period within
interrupt the 30-day period. the petition for
which to file the
certiorari. If the
petition if the MR or
If denied, aggrieved party may file petition motion is denied, the
new trial is denied, is
within the remaining period but it shall not be aggrieved party may
60 days from notice of
less than 5 days in any event from notice of file the petition within
the denial of the
denial. the remaining period,
motion.
but which shall not be
NOTE: The Fresh Period Rule is NOT applicable less than 5 days
reckoned from the
PROCEDURE notice of denial.

1. A verified petition is filed (Sec. 5) with

payment of docket and lawful fees (Sec.
4)
2. Service of petition to the Commission
and parties concerned (Sec. 5)
3. SC shall act on the petition:
159

CERTIORARI, PROHIBITION, jurisdiction prevent the said

MANDAMUS usurpation

DEFINITIONS AND DISTINCTIONS Distinguished from Injunction

Writ of Certiorari is a writ emanating from a INJUNCTION PROHIBITION

superior court directed against an inferior court, Ordinary civil action Special civil action
tribunal, or officer exercising judicial or quasi- Directed to the court
Directed only to the
judicial functions. The purpose of which is to itself, commanding it
party litigants,
correct errors of jurisdiction. to cease from the
without in any
exercise of a
manner interfering
Writ of Prohibition is a writ issued by a superior jurisdiction to which it
with the court
court and directed against an inferior court, has no legal claim
board, officer or other person whether
exercising judicial, quasi-judicial, or ministerial INJUNCTION MANDAMUS
functions for the purpose of preventing the Ordinary civil action Special civil action
latter from usurping jurisdiction with which it is Directed against a
Directed against a
not legally vested. tribunal, corporation,
litigant
board, or officer
Writ of Mandamus is a writ issued in the name of Purpose is to either
Purpose is for the
the State, to an inferior tribunal, corporation, refrain the defendant
tribunal, corporation,
board, or person, commanding the performance from performing an
board, or officer, to
of an act which the law enjoins as a duty act or to perform not
perform a ministerial
resulting from an office, trust, or station. necessarily a legal
and legal duty
and ministerial duty
CERTIORARI PROHIBITION MANDAMUS
Directed against
Directed against an entity or Directed againstCertiorari as a Mode of Appeal and as a Special
an entity or person an entity or Civil Action
person exercising person
exercising judicial, quasi- exercising CERTIORARI AS A CERTIORARI AS A
judicial or quasi- judicial, or ministerial MODE OF APPEAL SPECIAL CIVIL
judicial functions ministerial functions (Rule 45) ACTION (Rule 65)
functions A continuation of the
An original action and
Entity or person appellate process
not a mode of appeal
is alleged to over the original case
Entity or person is alleged to have
have: May be directed
acted:
(1) Neglected a against an
(1) Without jurisdiction
ministerial duty; interlocutory order of
(2) In excess of jurisdiction; or Seeks to review final
or the court or where no
(3) With grave abuse of discretion judgment or final
(2) Excluded appeal or plain or
amounting to lack or excess of orders
another from a speedy remedy is
jurisdiction
right or office available in the
ordinary course of law
PURPOSE: PURPOSE: Raises questions of
PURPOSE To have For respondent jurisdiction that is,
To annul or respondent to: (1) Do the whether a tribunal,
nullify a desist from act required, board or officer
proceeding further and (2) Pay exercising judicial or
proceeding damages quasi-judicial
Raises only questions
Covers functions has acted
Covers of law
discretionary Covers without jurisdiction
discretionary
and ministerial ministerial acts or in excess of
acts
acts jurisdiction or with
Corrective Negative and This remedy is grave abuse of
remedy Preventive affirmative or discretion amounting
To correct remedy positive to lack of jurisdiction
usurpation of To restrain or or negative Filed within 15 days Filed not later than 60
160

from notice of days from notice of 1. IF ACTION IS FILED WITH THE RTC -
judgment or final judgment, order, or We follow rules on ordinary civil
order appealed from, resolution sought to actions. Jurisdiction is acquired by:
or of the denial of be assailed and in case a. Service of summons to respondent
petitioners motion a motion for or
for reconsideration or reconsideration or b. By his voluntary appearance in
new trial new trial is timely court
filed, the 60-day
period is counted 2. IF ACTION IS FILED WITH THE CA OR
from notice of said SC - Court acquires jurisdiction over
denial respondents by:
Extension of 30 days a. Service on them of its orders
Extension no longer indicating its initial action on the
may be granted for
allowed petition or
justifiable reasons
Motion for b. By their voluntary submission to
Does not require a such jurisdiction
reconsideration is a
prior motion for
condition precedent,
reconsideration
subject to exceptions
Does not stay the REQUISITES
judgment or order
Stays the judgment Requisites of Certiorari:
subject of the petition,
appealed from 1. There must be a controversy
unless enjoined or
restrained 2. Respondent is exercising judicial or
Parties are the quasi-judicial function
original parties with The tribunal, board, 3. Respondent acted without or in excess
the appealing party as officer, exercising of its jurisdiction or acted with grave
the petitioner and the judicial or quasi- abuse of discretion amounting to lack of
adverse party as the judicial functions is jurisdiction; and
respondent without impleaded as 4. There must be no appeal or other plain,
impleading the lower respondents speedy, and adequate remedy
court or its judge
May be filed with the Requisites of Prohibition:
Filed only with the SC SC, CA, 1. There must be a controversy
Sandiganbayan, RTC 2. Respondent is exercising judicial, quasi-
SC may deny the judicial, or ministerial functions
decision motu 3. Respondent acted without or in excess
proprio on specific of its jurisdiction or acted with grave
grounds abuse of discretion amounting to lack of
jurisdiction; and
NOTE: An original action for Certiorari, 4. There must be no appeal or other plain,
Prohibition, or Mandamus, is an Independent speedy, and adequate remedy
Action, as such:
1. Does not interrupt the course of the Requisites of Mandamus:
principal action 1. There must be a clear legal right or duty
2. Does not affect the running of the If there is discretion as to the taking
reglementary periods involved in the or non-taking of the action sought,
proceedings there is no clear legal duty, and
3. Does not stay the execution of judgment mandamus will not lie
unless a TRO or writ of preliminary
injunction has been issued 2. The act to be performed must be
practical
Within the powers of the
ACQUISITION OF JURISDICTION respondent to perform such that if
the writ of mandamus was issued,
In original actions for Certiorari, Prohibition, he can comply with it, or else the
Mandamus, when does the court acquire essence will be defeated
jurisdiction over the person of the respondent? 3. Respondent must be exercising a
IT DEPENDS: ministerial duty
161

A duty which is absolute and Prohibition is a preventive remedy. However, to

imperative and involves merely its prevent the respondent from performing the act
execution sought to be prevented during the pendency of
4. The duty or act to be performed must the proceedings for the writ, the petitioner
be existing should obtain a restraining order and/or writ of
A correlative right will be denied if preliminary injuction. [Regalado]
not performed by the respondents
5. There is no other plain, speedy, and The office of prohibition is not to correct errors
adequate remedy in the ordinary course of judgment but to prevent or restrain
of law usurpation by inferior tribunals and to compel
them to observe the limitation of their
DISCRETIONARY ACT MINISTERIAL ACT jurisdictions. (Herrera)
One which an officer
or tribunal performs General Rule: Prohibition does NOT ordinarily
One where public lie to restrain an act which is already fait
in a given state of
functionaries, by accompli.
facts, in a prescribed
virtue of a power or
manner, in obedience
right conferred upon Exception: Writ of prohibition will lie to prevent
to the mandate of a
them by law, can act the unlawful creation of a new province by those
legal authority,
officially under certain in the corridors of power who could avoid
without regard to or
circumstances, judicial intervention and review by merely
the exercise of his
uncontrolled by the speedily and stealthily completing the
own judgment upon
judgment or commission of such illegality (Tan, et al. v.
the propriety or
conscience of others COMELEC)
impropriety of the act
done

WHEN PETITION FOR MANDAMUS PROPER

WHEN PETITION FOR CERTIORARI IS
PROPER
Only to correct errors of jurisdiction, not errors
of judgment.
Questions of fact cannot be raised in an original
action for certiorari. Only established or
admitted facts may be considered. (Suarez,
NLRC, 1998)
Where appeal is available, certiorari will not lie.
Exceptions:
1. Where the appeal does not constitute a
speedy and adequate remedy
2. Where orders were also issued either in
excess or without jurisdiction
3. For certain special considerations, as
public welfare or public policy
4. Where, in criminal actions, the court
rejects the rebuttal evidence for the
prosecution as, in case of acquittal,
there could be no remedy
5. Where the order is a patent nullity
6. Where the decision in the certiorari
case will avoid future litigations
WHEN PETITION FOR INJUNCTION IS
PROPER
The purpose of mandamus is to compel the
performance, when refused, of a ministerial
duty, this being its main objective.
A writ of mandamus will not issue to control the
exercise of official discretion or judgment, or to
alter or review the action taken in the proper
exercise of the discretion of judgment, for the
writ cannot be used as a writ of error or other
mode of direct review.
However, in extreme situations generally in
criminal cases, mandamus lies to compel the
performance of the fiscal of discretionary
functions where his actuations are tantamount
to a wilful refusal to perform a required duty.
[Regalado]
Grounds for Mandamus:
1. When any tribunal, corporation, board,
officer or person, UNLAWFULLY
NEGLECTS the performance of an act
which the law specifically enjoins as a
duty resulting from an office, trust, or
station
2. When any tribunal, corporation, board,
officer, or person, UNLAWFULLY
EXCLUDES another from the due and
enjoyment of a right or office to which
the other is entitled
162
MANNER OF FILING THE PETITION
1. A verified petition is filed in the proper
court accompanied by:
a. Certified true copy of the judgment,
order, resolution subject thereof
b. Copies of all pleadings and relevant
and pertinent documents
c. Sworn certification of non-forum
shopping
2. Contents of the petition
a. Allegation of facts with certainty
b. Prayer
Prayers:
1. In certiorari
a. That the judgment be rendered
annulling or modifying the
proceedings of such tribunal, board
or officer; and
b. Granting such incidental reliefs as
law and justice may require
2. In prohibition
a. That the judgment be rendered
commanding the respondent to
desist from further proceedings in
the action or matter specified; or
b. Otherwise granting such incidental
reliefs as law and justice may
require
3. In mandamus
a. That the judgment be rendered
commanding the respondent,
immediately or at some other time
to be specified by the court, to do
the act required to be done to
protect the rights of the petitioner ;
and
b. To pay the damages sustained by
the petitioner by reason of the
wrongful acts of the respondent
EXCEPTIONS TO FILING MOTION FOR
RECONSIDERATION BEFORE FILING
PETITION
General Rule: A MR is an essential precondition
for the filing of a petition for certiorari,
prohibition, or mandamus. It is a plain, speedy,
and adequate remedy. This is to enable the
lower court, in the first instance, to pass upon
and correct its mistakes without the
intervention of the higher court
If a MR is filed, the period shall not only be
interrupted but another 60 days shall be given
to the petitioner within which to file the
appropriate petition for certiorari or prohibition
with the superior court (SC Admin Circular 00-
2-03)
Exceptions: MR may be dispensed with in some
cases:
1. Where the order is a patent nullity
2. Where questions raised in the certiorari
proceeding have been duly raised and
passed upon by the lower court , or are
the same as those raised and passed
upon in the lower court
3. Where there is urgent necessity for the
resolution of the question and any
further delay would prejudice the
interests of the Government
4. Where under the circumstances, a MFR
would be useless, as where the court
had already indicated that it would
deny any motion for reconsideration of
its questioned order
5. Where petitioner was deprived of due
process and there is extreme urgency
for relief
6. Where, in a criminal case, relief from an
order of arrest is urgent and granting
such relief by trial court is improbable
7. Where the proceedings in the lower
court are a nullity for lack of due
process
8. Where the proceeding was ex parte or
in which the petitioner had no
opportunity to object
9. Where the issue raised is one purely of
law or where public interest is involved
10. Where the subject matter of the action
is perishable
PROCEDURE
1. A petition for certiorari/ mandamus/
prohibition is filed
When filed:
a. Not later than 60 days from notice
of judgment/order/resolution
b. If a motion for
reconsideration/new trial is filed,
the 60-day period shall be counted
from notice of denial of motion.
c. Extension may be granted for
compelling reasons, not exceeding
15 days. [Rule 65, Sec. 4]
163
Where filed: (Follow hierarchy of
courts)
a. Supreme Court
b. Court of Appeals; Whether or not
the same is in aid of its appellate
jurisdiction BUT if it involves the
acts of a quasi-judicial agency, the
petition shall be filed only in the CA,
unless otherwise provided by law
or the Rules.
c. Regional Trial Court, if it relates to
acts / omissions of a lower court /
corporation / board / officer /
person. RTC must exercise
jurisdiction over the territorial area
d. Sandiganbayan, if it is in aid of its
appellate jurisdiction. [Rule 65, Sec.
4]
e. The COMELEC in election cases
involving an act or omission of the
MTC/RTC
2. Order to Comment - If the petition is
sufficient in form and substance to
justify such process, the court shall
issue an order requiring the
respondent(s) to comment on the
petition within 10 days from receipt of a
copy thereof.
Such order shall be served on the
respondents in such manner as the
court may direct, together with a copy
of the petition and any annexes thereto.
[Rule 65, Sec. 6]
3. Hearing or Memoranda - After the
comment or other pleadings required
by the court are filed, or the time for the
filing thereof has expired, the court may
hear the case or require the parties to
submit memoranda. [Rule 65, Sec. 8]
4. Judgment - If after such hearing or
submission of memoranda or the
expiration of the period for the filing
thereof, the court finds that the
allegations of the petition are true, it
shall render judgment for the relief
prayed for or to which the petitioner is
entitled.
The court, however, may dismiss the
petition if it finds the same to be:
a. Patently without merit,
b. Prosecuted manifestly for delay, or
c. The questions raised therein are
too unsubstantial to require
consideration. [Rule 65, Sec. 8]
5. Service and Enforcement of Order or
Judgment - A certified copy of the
judgment rendered shall be served
upon the court, quasi-judicial agency,
tribunal, corporation, board, officer or
person concerned in such manner as
the court may direct, and disobedience
thereto shall be punished as contempt.
RELIEFS PETITIONER IS ENTITLED TO
Petitioner may be entitled to:
1. Injunctive relief Court may may issue
orders expediting the proceedings, and
it may also grant a temporary
restraining order or a writ of
preliminary injunction for the
preservation of the rights of the parties
[Rule 65, Sec. 7]
2. Incidental reliefs as law and justice may
require [Rule 65, Secs. 1 and 2]
3. Other reliefs prayed for or to which the
petitioner is entitled [Rule 65, Sec. 8]
INJUNCTIVE RELIEF
Rule 65, Sec. 7 provides for the issuance of a
temporary restraining order, and not only for a
writ of preliminary injunction, but such order
shall be subject to the rules on the grounds and
duration thereof. [Regalado]
General Rule: The petition shall not interrupt the
course of the principal case.
The public respondent shall proceed with the
principal case WITHIN 10 DAYS from filing of
the petition for certiorari with the higher court,
absent a TRO or preliminary injunction, or upon
its expiration. Failure may be a ground for an
administrative charge (AM No. 07-7-12-SC)
Exception: Unless a TRO or preliminary
injunction has been issued against the public
respondent from further proceedings in the case
FACTS/OMISSIONS OF MTC/RTC IN
ELECTION CASES
In election cases involving an act or an omission
of a municipal or regional trial court, the
petition shall be filed EXCLUSIVELY with the
Commission on Elections, in aid of its appellate
jurisdiction (Rule 65, Sec. 4, as amended in AM
No. 07-7-12-SC)
164

EFFECTS OF FILING AN UNMERITORIOUS In these cases, the court may award TREBLE
PETITION COSTS solidarily against petitioner and counsel,
in addition to administrative sanctions
The court, however, may dismiss the petition if
it finds the same to be patently without merit, Court may impose, motu proprio, based on res
prosecuted manifestly for delay, or that the ipsa loquitur, other disciplinary sanctions for
questions raised therein are too unsubstantial to patently dilatory and unmeritorious petitions
require consideration. (Rule 65, Sec. 8) (AM No. 07-7-12-SC)
QUO WARRANTO municipal or
barangay officer
NATURE Period for filing
Within 1 year from
Within 10 days after
Quo Warranto literally means by what ouster, or from the time
proclamation of
authority. the right to the position
results
arose
It is a prerogative writ by which the government Against whom, grounds
can call upon any person to show by what A person, who usurps,
warrant he holds a public office or exercises a intrudes into or
public franchise. unlawfully holds or
exercises a public office,
When the inquiry is focused on the legal position or franchise;
Ineligibility or
existence of a body politic, the action is reserved
disloyalty to the
to the State in a proceeding for quo warranto or A public officer, who
Republic
any other direct proceeding. does or suffers an act
which, by provision of
Subject Matter: The subject matter of a quo law, constitutes a
warranto may be a public office, franchise, or ground for forfeiture of
position. office

NOTE: NOTE: Rule 66 deleted an office In fine, Rule 66 applies to quo warranto IN
in a corporation created by authority of GENERAL while election law governs quo
law. This falls under the jurisdiction of warranto against SPECIFIED elective officials.
the SEC under PD 902-A.
AGAINST WHOM MAY THE ACTION BE
Jurisdiction to Issue Writ: Original jurisdiction to BROUGHT (Rule 66, Sec. 1)
issue the writ of quo warranto is vested in the
SC, CA, and RTC. 1. A PERSON who USURPS, intrudes into,
or unlawfully holds or exercises a public
office, position, or franchise
DISTINGUISHED FROM QUO WARRANTO IN 2. A PUBLIC OFFICER who does or suffers
THE OMNIBUS ELECTION CODE an act, which, by provision of law,
constitutes a ground for FORFEITURE
ROC Rule 66 OEC Sec. 253 OF OFFICE
Filed by whom 3. An ASSOCIATION which acts as a
Solicitor General or corporation within the Philippines
Public Prosecutor in without being legally incorporated or
Any voter
behalf of the Republic; without lawful authority to act
Individual
Where filed Actions for quo warranto against corporations
COMELEC, if against with regard to franchises and rights granted to
election of a them, as well as their dissolution now fall under
By SolGen: RTC Manila, the jurisdiction of the RTC (Securities
Member of
CA or SC; Otherwise, Regulation Code, Sec. 5.2)
Congress, Regional,
RTC with jurisdiction
Provincial or City
over territorial area
Officer;
where respondent WHO MAY COMMENCE THE ACTION (Rule 66,
resides, CA or SC Sec. 2 5)
appropriate RTC or
MTC, if against a
165

General Rule: The Government, through the

Solicitor General or public prosecutor
1. MANDATORY (Sec. 2); When to
commence:
a. When directed by the President, or
b. When upon complaint or otherwise
he has good reason to believe that
any case in Sec. 1 can be established
by proof
2. DISCRETIONARY (Sec. 3); When to
commence:
a. This is upon permission of court
b. Bringing such action (ex relatione)
at the request and upon the relation
of another person, PROVIDED:
(1) Officer bringing it may require
an indemnity bond
(2) Leave of court will have to be
obtained
Exception: An individual may commence the
action (Sec. 5); PROVIDED:
1. He institutes the action in his own name
a. He does not have to secure the
intervention of the Solicitor General
or public prosecutor
b. No leave of court necessary
2. HOWEVER, he must claim to be entitled
to the office or position usurped or
unlawfully held or exercised by another.
a. He must aver and be able to show
that he is entitled to the office in
dispute. There must be an
allegation that respondent is either
a de facto or de jure officer
PERIOD FOR PLEADINGS AND PROCEEDINGS
MAY BE REDUCED (Rule 66, Sec. 8)
JUDGMENT IN QUO WARRANTO ACTION
(Rule 66, Sec. 9)
When respondent is found guilty of usurping,
intruding, or unlawfully holding, judgment
rendered:
1. That such respondent is ousted and
altogether excluded therefrom
2. That petitioner or relator, as the case
may be, recover his costs
3. May determine the respective rights in
and to the public office, position, or
franchise of all parties
RIGHTS OF A PERSON ADJUDGED ENTITLED
TO PUBLIC OFFICE (Rule 66, Sec. 10)
Rights of persons adjudged entitled to office:
1. Execution of the office
After taking oath of office and
executing any official bond required
by the law
2. Demand from respondent all the books
and papers appertaining to the office to
which judgment relates
Respondents neglect or refusal to
comply with the demand is
punishable by contempt
3. Bring an action for damages against
respondent
For damages sustained by him by
reason of the usurpation
Must be commenced within 1 year
after entry of judgment establishing
petitioners right to the office in
question (Sec. 11)

Period to File: The action must be commenced

within 1 year from the date after the cause of
such ouster or the right of the petitioner to hold
such office or position arose. (Sec. 11)

Laches does not attach and failure to file quo-

warranto proceedings does not operate
adversely against a dismissed government
employee where it was the act of responsible
government official which contributed in the
delay of filing of complaint for reinstatement
(Cristobal v. Melchor).

Reduction of Period: The court may reduce the

period for filing and for all other proceedings in
the action to secure most expeditious
determination of the matters involved therein,
consistent with the rights of the parties.
166
EXPROPRIATION
NATURE
Eminent Domain is the right and authority of the
State, as sovereign, to take private property for
public use upon observance of due process and
payment of just compensation.
It is a governments right to appropriate, in the
nature of a compulsory sale to the State, private
property for public use or purpose.
Requisites for the Valid Exercise of the Right
1. There must be due process of law
2. Payment of just compensation
3. Taking must be for public use
Subject Matter of Expropriation: All properties
can be expropriated, EXCEPT:
1. Money (futile; because of just
compensation)
2. Choses in action (conjectural in nature;
validity and its value)
When is Expropriation Proper:
1. When the owner refuses to sell
2. When he agrees to sell but an
agreement as to the price cannot be
reached.
MATTERS TO ALLEGE IN COMPLAINT FOR
EXPROPRIATION
Contents of the Complaint (Rule 67, Sec. 1)
1. State with certainty the right and
purpose of expropriation
a. Where the right of the plaintiff to
expropriate is conferred by law,
complaint does not have to state
with certainty the right of
expropriation (MRR Co. v. Mitchel)
2. Describe the real or personal property
sought to be expropriated
3. Joining of defendants
a. All persons owning or claiming to
own, or occupying, any part thereof
or interest therein. showing
separate interest of each defendant,
as far as practicable
b. Make the following averments, if
needed:
(1) If title appears to be in the
Republic, although occupied by
private individuals
(2) If title is otherwise obscure or
doubtful so that plaintiff cannot
with accuracy or certainty
specify who the real owners are
Where to File: RTC where property is located.
MTC has no jurisdiction since an action for
expropriation is incapable of pecuniary
estimation.
TWO STAGES IN EVERY ACTION FOR
EXPROPRIATION
First Stage: Determination of the authority of the
plaintiff to exercise the power of eminent
domain and the propriety of its exercise in the
context of the facts involved. This ends with
either:
1. An order of dismissal, or
2. An order of expropriation
Second Stage: Determination of the just
compensation for the property sought to be
taken.
NOTE: Multiple appeals is allowed in
expropriation. Aggrieved party may appeal in
each stage separately.
WHEN PLAINTIFF CAN IMMEDIATELY ENTER
INTO POSSESSION OF THE REAL PROPERTY,
IN RELATION TO R.A. NO. 8974
Plaintiff shall have the right to take or enter
upon possession of the real property upon:
1. Filing of complaint or at any time
thereafter, and after due notice to
defendant
4. Making preliminary deposit (Rule 67,
Sec. 2)
Preliminary deposit:
Provide damages if court finds that
the plaintiff has no right to
expropriate
Purposes
Advance payment for just
compensation, if property is finally
expropriated
If Real Property - Equivalent to the
assessed value of the property for
purposes of taxation
Value
If Personal Property Value shall
be provisionally ascertained and
fixed by the court
With the authorized government
Where to
depositary
deposit
Amount is to be held by such bank
167

subject to the orders of the court using replacement

Deposit shall be in money cost method

UNLESS, in lieu of money, court Remember the Applicable Rules:

Form of
authorizes deposit of a certificate of 1. RA 8974 specifically governs
Deposit
deposit of a government bank of the expropriation for national government
Republic, payable on demand to the infrastructure projects
authorized government depositary 2. Sec 19, LGC governs the exercise of the
power of eminent domain by LGUs
After the deposit, court shall order sheriff or through an enabling ordinance
proper officer to place plaintiff in possession of
the property. Such officer shall promptly submit
a report to the court with service of copies to NEW SYSTEM OF IMMEDIATE PAYMENT OF
parties. INITIAL JUST COMPENSATION

NOTE: Preliminary deposit is only necessary if
the plaintiff desires entry on the land upon its
institution of the action. Otherwise, he could
always wait until the order of expropriation is
issued before it enters upon the land.
Once the preliminary deposit has been made,
the expropriator is entitled to a writ of
possession as a matter of right, and the issuance
of said writ becomes ministerial on the part of
the trial court (Biglang-Awa v. Bacalla)
For the acquisition of right-of-way, site or
location for any national government
infrastructure project through expropriation,
upon the filing of the filing of the complaint, and
after due notice to the defendant, the
implementing agency shall immediately pay the
owner of the property the amount equivalent to
the sum of (1) 100 percent of the value of the
property based on the current relevant zonal
valuation of the BIR; and (2) the value of the
improvements and/or structures as determined
under Sec. 7 of RA 8974 (Sec. 4, RA 8974)

On RA 8974
DEFENSES AND OBJECTIONS
On Nov. 7, 2000, Congress enacted RA 8974, a
special law to facilitate the acquisition of right of No Objection Or Has Objection Or
way, site, or location for national government Defense To The Taking Defense To The Taking
infrastructure projects:
What to file and serve
RULE 67, Notice of appearance Answer to the
RA 8974
SEC. 2 and manifestation complaint
Only when national Period to file
government
Time stated in the summons
expropriates
Expropriation Contents
APPLICATION property for national
in general Specifically
government
infrastructure designating/identifyin
Manifestation to the
projects g the property in
effect that he has no
Government Government is which he claims to
objection or defense;
FOR WRIT OF is required to required to make have an interest in and
POSSESSION make immediate payment the nature and extent
Specifically
TO ISSUE preliminary to owner upon filing designating/identifyin of the interest;
deposit of complaint g the property in
Equal to the market which he claims to be ALL his objections and
value of the property defenses to the
interested
Equal to as stated in the tax complaint or any
assessed declaration or allegation therein
AMOUNT OF Prohibited
value of real current relevant
PAYMENT OR Counterclaim, cross-
property for zonal value of BIR,
DEPOSIT claim, third party
purposes of whichever is higher,
taxation and value of complaint in any
improvements pleading
and/or structures
168
NOTE: A defendant waives all defenses and
objections not so alleged, but the court, in the
interest of justice, may permit amendments to
the answer not to be made later than ten (10)
days from filing thereof.
NOTE: In any case, in the determination of just
compensation, defendant may present evidence
as to the amount of compensation to be paid.
NOTE: The defendant CANNOT be declared in
default for failure to file Answer. Failure to file
an answer would result to the courts judgment
on the right to expropriate without prejudice to
the right to present evidence on the just
compensation and to share in the distribution of
the award.
ORDER OF EXPROPRIATION (Rule 67, Sec. 4)
Order of Expropriation - It is the order declaring
that the plaintiff has lawful right to take the
property.
When Issued: It is issued when:
1. Objections or defenses against the right
of plaintiff to expropriate are overruled;
or
2. No party appears to defend the case
Contents of the Order:
1. That the plaintiff has a lawful right to
take the property sought to be
expropriated
2. For public use or purpose described in
the complaint
3. Upon payment of just compensation
a. To be determined as of the date of
taking, or
b. The filing of the complaint,
whichever came first
Remedy of Defendant: Order of condemnation is
final, not interlocutory. Hence, it is appealable.
Effects of the Order:
1. Plaintiff not permitted to dismiss or
discontinue the proceeding
a. EXCEPTION: On such terms as the
court deems just and equitable,
plaintiff may be allowed to dismiss
or discontinue
2. Forecloses any further objections to the
right to expropriate, including the
public purpose of the same
ASCERTAINMENT OF JUST COMPENSATION
(Rule 67, Sec. 5)
Upon rendition of the Order of Expropriation,
the court issues an Order of Appointment.
Order of Appointment:
1. Court appoints not more than 3
commissioners to ascertain and report
to the court the just compensation for
the property
2. Contents:
a. It shall designate the time and place
of the first session of hearing to be
held by commissioner
b. Specify the time within which their
report shall be submitted to court
3. Procedures:
a. Copies of the Order shall be served
on the parties
b. Objections to appointment:
(1) Filed with the court within 10
days from service
(2) Objections shall be served to all
commissioners
(3) Resolved within 30 days after
all commissioners shall have
received copies
Just Compensation
Just Compensation has been defined as the full
and fair equivalent of the property taken from
its owner by the expropriator. Just
compensation means not only the correct
determination of the amount to be paid but also
the payment of the land within a reasonable
time from its taking.
Market Value
Is that sum of money which a person desirous
but not compelled to buy, and an owner willing
but not compelled to sell, would agree on as a
price to be given and received therefore. [BPI v.
CA (2004)]
Time when market value should be fixed:
1. When plaintiff takes possession before
institution of proceedings, value should
be fixed as of the TIME OF TAKING
2. When the taking coincides with or
subsequent to the commencement of
proceedings, DATE OF FILING of the
complaint should be the basis
169
APPOINTMENT OF COMMISSIONERS;
COMMISSIONERS REPORT; COURT ACTION
UPON REPORT
Qualifications of the Commissioners:
1. Competent and
2. Disinterested
Proceedings by Commissioners (Rule 67, Sec. 6)
1. Commissioners shall first take and
subscribe an oath that they will
faithfully perform their duties. Oath
shall be filed in court together with
other proceedings.
2. Evidence may be introduced by either
party before the commissioners who
are authorized to administer oaths on
hearings before them
Duties of Commissioners:
1. View and examine the property sought
to be expropriated and its
surroundings, and may measure the
same
a. Due notice to parties to attend must
first be given UNLESS the parties
consent to the contrary
b. After this, each party may argue the
case
2. They shall assess the consequential
damages to the property not taken and
deduct from such the consequential
benefits to be derived by owner
a. In no case shall the consequential
benefits assessed exceed the
consequential damages
b. In no case shall the owner be
deprived of the actual value of his
property taken
Report by Commissioners (Rule 67, Sec. 7)
Commissioners shall make a full and accurate
report to the court of all their proceedings.
Such proceeding shall not be effectual until
court has accepted their report and rendered
judgment in accordance with their
recommendations.
Report shall be filed within 60 days from date
commissioners were notified of their
appointment. Time may be extended by court
discretion,
Upon filing, clerk shall serve copies of the
Commissioners Report to all interested parties.
Clerk includes a notice that parties are allowed
to file objections to the report within 10 days
from notice
Action Upon Commissioners Report (Rule 67, Sec.
8)
1. When court renders judgment: Upon
a. Filing of objections to the report or
of the agreement thereon of all
interested parties; or
b. Expiration of 10-day period to
object from the report
2. Court may:
a. After hearing, accept the report and
render judgment in accordance
therewith
b. Recommit to commissioners for
further report of facts, for cause
shown
c. Set aside the report and appoint
new commissioners;
d. Accept the report in part and reject
in part
e. Make such order or render such
judgment as shall secure the
plaintiff and the defendant
RIGHTS OF PLAINTIFF UPON JUDGMENT AND
PAYMENT (Rule 67, Sec. 10)
When will the right of plaintiff TO ENTER the
property sought to be appropriated or RIGHT
TO RETAIN it should he have taken immediate
possession thereof accrue?
1. RIGHT TO RETAIN: Upon filing of
complaint, serving notice to defendant,
and after depositing the assessed value
of property for taxation purposes with
authorized government depositary (Sec.
2)
2. RIGHT TO ENTER:
a. Upon payment by plaintiff to
defendant of compensation fixed by
judgment, with legal interest from
taking (Sec. 10)
b. After tender to defendant of
amount so fixed and payment of the
costs (Sec. 10)
EFFECT OF RECORDING OF JUDGMENT
Contents of the Judgment
1. Statement of the particular property or
interest therein expropriated, with
adequate description
170
2. Nature of the public use or purpose for
which it is expropriated
In case of real estate, a certified true copy of
such judgment shall be recorded in the registry
of deeds of the place in which property is
situated. Effect is to vest title.
Title in Expropriation is vested:
1. If PERSONAL property, upon payment
of just compensation (Sec. 10)
2. If REAL property, upon payment of just
compensation AND registration of
property (Sec. 13)
FORECLOSURE OF REAL ESTATE
MORTGAGE
NATURE
Foreclosure of Mortgage is a proceedings in a
court of justice conducted according to legal
forms by which the mortgagee or his successors
or one who has by law succeeded to the rights
and liabilities of the mortgagee undertakes to
dispose of, to ban, to cut-off the legal and
equitable claims of lien holders or of the
mortgagors or those who have succeeded to the
rights and liabilities of the mortgagor.
The cause of action in a foreclosure suit is
generally the non-payment of the mortgage loan,
but it may be on other grounds which under the
contract warrant the foreclosure, such as the
violation of the other conditions therein.
Foreclosure may be made:
1. Judicially governed by Rule 68
2. Extrajudicially proper only when so
provided in contracts in accordance
with Act. No. 3135; governed by A.M.
No. 99-10-05-0.
COMPLAINT IN AN ACTION FOR
FORECLOSURE (Rule 68, Sec. 1)
Venue: A foreclosure action must be brought in
the RTC of the province where the land or any
part thereof is situated
Contents of the Complaint:
1. The following dates:
a. Date and due execution of the real
mortgage
b. Date of the note or other
documentary evidence of the
obligation secured by the mortgage
2. Its assignments, if any
3. The following names and residences:
a. Of the mortgagor and mortgagee
b. Of all persons having or claiming an
interest in the property
subordinate in the right to that of
the holder of the mortgage
4. Description of the mortgaged property
5. Amount claimed to be unpaid
Defendants in a judicial foreclosure
1. Persons obliged to pay the mortgage
debt
2. Persons who own, occupy, or control
the mortgaged premises or any part
thereof
171
3. Transferee or grantee of the property
4. Second mortgagee or junior
encumbrancers or any person claiming
a right or interest in the property
subordinate to the mortgage sought to
be foreclosed to foreclose their equity of
redemption
But if the action is by the junior
encumbrancer, first mortgagee
MAY also be joined as defendant
5. Mortgagor even if not owner of the
mortgaged property should be included
to satisfy the deficiency
JUDGMENT ON FORECLOSURE FOR PAYMENT
OR SALE (Rule 68, Sec. 2)
If upon trial, the facts set forth in the complaint
are true, the court shall:
1. Ascertain the amount due to the
plaintiff upon the mortgage debt or
obligation including interests, other
charges approved, costs
2. Render judgment for the sum so found
due
3. Order that the amount be paid to the
court or to judgment obligee
a. Within a period of not less than 90
days but not more than 120 days
from entry of judgment
b. In default of such payment,
property shall be sold at public
auction to satisfy judgment
Judgment on Foreclosure is the judgment of the
court ordering the debtor to pay within 90-120
days from entry of judgment after ascertaining
the amount due to plaintiff
NOTE: Multiple appeals are allowed under Rule
68
1. Judgment of foreclosure is appealable
(Sec. 2)
2. Order confirming foreclosure sale is a
final disposition with respect to the
issue of validity and regularity of the
sale (Sec. 3)
3. Deficiency judgment is a disposition on
the merits of the correctness of such
award (Sec. 6)
SALE OF MORTGAGED PROPERTY; EFFECT
(Rule 68, Sec. 3)
When Proper: When Defendant fails to pay the
amount of judgment within the period specified,
the court shall order the property to be sold.
How: By motion and under the provisions of
Rule 39.
It is the ministerial duty of the court to order the
foreclosure of the property when the debt is not
paid within the period specified.
A motion for such order of sale is non-litigable
and may be made ex parte. [Govt of P.I. v De las
Cajigas (1931)]
NOTE: Such sale shall not affect the rights of
persons holding prior encumbrances upon the
property or a part thereof.
Order of Confirmation - When confirmed by an
order of the court, also upon motion, it 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.
Confirmation of the sale of mortgaged real
property vests title in the purchaser including
the equity of redemption, it retroacts to the date
of the sale. It cuts off all the rights or interests of
the mortgagor and of the mortgagee. [Lozame v
Amores (1985]].
The motion for the confirmation of the sale
requires a hearing to grant an opportunity to the
mortgagor to show cause why the sale should
not be confirmed [Tiglao v Botones, 90 Phil 275],
as by proof of irregularities therein or of gross
inadequacy of the price. Lack of notice vitiates
the confirmation of the sale.
Writ of Possession - Upon the finality of the order
of confirmation or upon the expiration of the
period of redemption when allowed by law, the
purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the
possession of the property, unless a third party
is actually holding the same adversely to the
judgment obligor.
DISPOSITION OF PROCEEDS OF SALE (Rule 68,
Sec. 4)
1. Amount realized from the foreclosure
sale, less costs of the sale, shall be paid
to the person foreclosing
172

2. When there is a balance or residue after
paying the mortgage debt, the same
shall be paid to junior encumbrancers
in the order of priority as ascertained
by the court
3. If there are no junior encumbrancers,
the residue goes to the mortgagor or his
authorized agent, or any other person
entitled to it
DEFICIENCY JUDGMENT; INSTANCES WHEN
COURT CANNOT RENDER DEFICIENCY
JUDGMENT (Rule 68, Sec. 6)
4. If mortgagor is a third person but not
solidarily liable with debtor
No deficiency judgment may be
rendered against owner who is not
a mortgagor and has not assumed
personal liability for the debt
Remedy is ordinary action against
debtor
5. In case of a mortgage debt due from the
estate of a deceased mortgagor and the
mortgage creditor availed of the third
remedy which is to rely upon his
mortgage alone and foreclosing the
same within the statute of limitations
(Sec. 7, Rule 86)

Deficiency Judgment is judgment rendered by

the court holding defendant liable for any JUDICIAL FORECLOSURE vs. EXTRAJUDICIAL
unpaid balance due to the mortgagee if the FORECLOSURE
proceeds from the foreclosure sale do not satisfy
the entire debt. JUDICIAL EXTRAJUDICIAL
FORECLOSURE FORECLOSURE
In extrajudicial foreclosure, the mortgagee can Requires court No court intervention
also recover by action any deficiency in the intervention necessary
mortgage account which was not realized in the There is only an Right of redemption
foreclosure sale. [PNB v. CA (1999)] equity of redemption exists
Governed by Rule 68 Governed by Act 3135
A motion for deficiency judgment may be made No Deficiency
only after the sale and after it becomes known judgment because
that a deficiency exists. [Governor of the There could be a there is no judicial
Philippine Islands v. Torralba Vda. de Santos Deficiency Judgment proceeding but
(1935)] recovery of deficiency
is allowed
If the debtor dies, the deficiency may be filed as Recovery of
a claim against his estate. [Rule 86, Sec. 7] Recovery of deficiency
deficiency can be
is through an
done by mere
How Done: independent action
motion
1. Judgment creditor files motion for
deficiency judgment
2. Court shall then render judgment EQUITY OF REDEMPTION vs. RIGHT OF
against defendant for any such balance REDEMPTION
for which he may personally be liable to
plaintiff Equity of Redemption is the right of the
3. Execution may then issue immediately defendant mortgagor to extinguish the mortgage
if balance is all due at the time of and retain ownership of the property by paying
rendition of judgment the secured debt within the 90 to 120 day
a. If not, plaintiff shall be entitled to period after entry of judgment or even after the
execution at such time as the foreclosure sale but prior to its confirmation
balance remaining becomes due
EQUITY OF RIGHT OF
Instances when court CANNOT render deficiency
REDEMPTION REDEMPTION
judgment
Right of the defendant Right of the debtor,
1. Recto Law (Art. 1484, par. 3)
mortgagor to his successor in
2. When mortgagor is a non-resident and
extinguish the interest, or any
is not found in the Philippines
mortgage and retain judicial creditor of
3. When mortgagor dies, mortgagee may
ownership of the said debtor or any
file his claim with the probate court
property by paying person having a lien
(Sec. 7, Rule 86)
the secured debt on the property
within the 90 to 120 subsequent to the
173

day period after entry mortgage or deed of PARTITION

of judgment or even
after the foreclosure NATURE
sale but prior to its
confirmation Partition is the process of dividing and assigning
Period is 90-120 days the property owned in common among the
after entry of various co-owners thereof in proportion to their
Period is 1 year from
judgment or even respective interests in said property.
date of registration of
after foreclosure sale
certificate of sale
but prior to Partition may be:
confirmation 1. JUDICIAL Procedure is Rule 69
Governed by Sec. 29- 2. EXTRAJUDICIAL No court intervention
Governed by Rule 68
31, Rule 39 required

JUDICIAL EXTRAJUDICIAL The partition of property may be made

FORECLOSURE FORECLOSURE voluntarily (by agreement) or compulsorily
Mortgagor has a right under the Rules. Even if the parties had resorted
No right of to redeem the to judicial partition, they may still make an
redemption, only property within one amicable partition of the property.
equity of redemption year from registration
of the deed of sale An action for partition and accounting under
EXCEPT: Sec. 47 of the Rule 69 is in the nature of an action QUASI IN
General Banking Act REM. Such an action is essentially for the
provides that in case purpose of affecting the defendants interest in a
of extrajudicial specific property and not to render a judgment
foreclosure, juridical against him.
EXCEPT: Those
persons shall have the
granted by banks or
right to redeem until,
banking institutions WHEN CAN PARTITION BE MADE
but not after, the
as provided by the
registration of the
General Banking Act General Rule: It can be made anytime. The right
certificate of
(mortgagor may to demand partition is imprescriptible.
foreclosure sale with
exercise a right of
the Register of Deeds
redemption) Exception to Imprescriptibility of Right to
which in no case shall
be more than 3 Partition: If a co-owner asserts adverse title to
months after the property. In which case, period of
foreclosure, prescription runs from such time of assertion of
whichever is earlier adverse title.

NOTE: What Sec. 2 and 3, Rule 68 provide for is
the mortgagors EQUITY, nor right, of
redemption. - This may be exercised by him
even beyond the period to pay the judgment
obligation and even after the foreclosure sale
itself, provided it be before the order of the
confirmation of sale
Exceptions to the Right to Ask for Partition:
1. When there is a stipulation against it,
not exceeding 10 years [Art. 494, Civil
Code]
2. When partition is prohibited by the
donor or testator for a period not
exceeding 20 years [Art. 494, 1083 Civil
Code]
3. When partition is prohibited by law
(e.g. ACP, party wall) [Art. 494, Civil
Code]
4. When the property is not subject to a
physical division and to do so would
render it unserviceable for the use for
which is it intended [Art. 495 Civil
Code] or
5. When the condition imposed upon
voluntary heirs before they can demand
partition has not yet been fulfilled. [Art.
1084 Civil Code]
174
WHO MAY FILE COMPLAINT; WHO SHOULD
BE MADE DEFENDANTS (Rule 69, Sec. 1)
Who May File: A person having the right to
compel partition of real estate, or of personal
property, or both real and personal property
(Sec. 1, Sec. 13)
Venue: An action for partition should be filed in
the RTC of the province where the property or
part thereof is situated.
Parties
1. The plaintiff is the person who is
supposed to be a co-owner of the
property
2. Defendants are all the co-owners, who
are indispensable parties
3. Creditors or assignees of co-owners
may also intervene and object to the
partition
MATTERS TO ALLEGE IN THE COMPLAINT
FOR PARTITION
Contents of the Complaint:
1. Nature and extent of his title
2. Adequate description of the real estate
sought to be partitioned
3. Joining of Defendants All other
persons interested in the property
TWO STAGES IN EVERY ACTION FOR
PARTITION
First Stage: Determination of the propriety of
partition
This involves a determination of whether the
subject property is owned in common and
whether all the co-owners are made parties in
the case.
The order may also require an accounting of
rents and profits recovered by the defendant.
This order of partition is appealable. [Miranda v.
Court of Appeals (1976)]
If not appealed, then the parties may partition
the common property in the way they want. If
they cannot agree, then the case goes into the
second stage. However, the order of accounting
may in the meantime be executed. [De Mesa v. CA
(1994)]
Second Stage: Actual partitioning of the subject
property
This is also a complete proceeding and the order
or decision is appealable.
When there was a prior partition, the fact that
the share of each co-heir has not been
technically described and the title over the
whole lot remains uncancelled does not negate
such partition.
There can be no partition again because there is
no more common property. [Noceda v. CA
(1999)]
ORDER OF PARTITION AND PARTITION BY
AGREEMENT
Order of Partition: The court issues an order of
partition AFTER the trial and the court finds that
the plaintiff has a right to partition. The court
orders the partition of the property.
The parties may make the partition proper
themselves, by agreement:
1. After the issuance of the order of
partition, the parties will then be asked
if they agree to make partition of the
property among themselves
2. If they agree, proper instruments of
conveyance will be executed to effect
the partition.
3. After the execution of instruments of
conveyance, the court shall confirm the
partition through a final order.
4. The final order of partition and the
instruments of conveyance shall be
registered with the Registry of Deeds
where the property is situated. [Rule 69,
Sec. 2]
PARTITION BY COMMISSIONERS;
APPOINTMENT OF COMMISSIONERS;
COMMISSIONERS REPORT; COURT ACTION
UPON COMMISSIONERS REPORT
When proper: If parties fail to agree on the
manner of partition, commissioners are
appointed to make partition.
How Done: The court appoints not more than 3
competent and disinterested commissioners to
make the partition. (Sec. 3)
175

a. Upon expiration of the 10 day

Oath of the Commissioners: Before entering into period for filing objections; or
their duties, commissioners must first make an b. Even before expiration but after the
oath that they will faithfully perform their duties interested parties have filed their
as commissioners. Such oath is to be filed in objections or their statement of
court. (Sec. 4) agreement therewith

Duties of the Commissioners: 2. The court may:

1. They shall view and examine real estate, a. Accept the report and render
after due notice to parties to attend at judgment in accordance therewith;
such view and examination or
2. They shall hear the parties as to their b. Recommit the same to
preference in the portion to be set apart commissioners for further report of
to them facts, for cause shown; or
3. They shall also determine the c. Set aside the report and appoint
comparative value thereof new commissioners; or
4. They shall set apart the same to the d. Accept the report in part and reject
parties in lots or parcels as will be most in part;
advantageous and equitable e. Make such order and render such
considering the improvements, judgment as shall effectuate a fair
situation, and quality of the parts and just partition of the real estate,
thereof or of its value, if assigned or sold

Assignment of Real Estate to One Party (Sec. 5)

1. General Rule: If the commissioners JUDGMENT AND ITS EFFECTS (Rule 69, Sec.
should determine that the real estate 11)
cannot be divided without prejudice to
the interests of the parties, the court
Contents of Judgment Effects of Judgment
may order that the property be
assigned to one of the parties willing to If Actual Partition Is Properly Made
take the same PROVIDED he pays to the Judgment shall state
other parties such amounts as the Judgment shall vest in
definitely, by metes and
commissioners deem equitable each party to the
bounds and adequate
action in severalty the
description, the
2. Exception: if one of the parties asks that portion of the real
particular portion of
the property be sold instead of being so estate assigned to
the real estate assigned
assigned, then the court shall ORDER him.
to each party.
the commissioners to sell the real estate
If The Whole Property Is Assigned To One Of The
at public sale under such conditions and
Parties After Payment
within such time as the court may
Judgment shall vest in
determine Judgment shall state
the party making the
the fact of such
payment the whole of
Commissioners Report: Commissioners shall payment and of the
the real estate free
make a full accurate report to the court. assignment of the real
from any interest on
Contents: estate to the party
the part of the other
1. All proceedings as to the partition, or making the payment.
parties.
2. The assignment of real estate to one of
If Property Is Sold And Sale Is Confirmed By The
the parties, or
Court
3. The sale of the same Judgment shall state
Judgment shall vest
the name of the
the real estate in the
Upon filing of Commissioners Report: purchaser or
purchaser(s), making
1. Clerk shall serve copies on all interested purchasers and a
the payment(s) free
parties with notice that they are definite description of
from the claims of
allowed to file objections the parcels of real
any parties to the
2. Parties may file objections within 10 estate sold to each
action.
days upon receipt of notice purchaser

Hearing on the Report (Sec. 7) A certified copy of the judgment shall in either
1. When Conducted: case be recorded in the registry of deeds of the
176

place in which the real estate is situated. [Rule FORCIBLE ENTRY AND UNLAWFUL
69, Sec. 11] DETAINER
NATURE
PARTITION OF PERSONAL PROPERTY
Ejectment cases are SUMMARY proceedings
The provisions of Rule 69 shall apply to intended to provide an expeditious means of
partitions of estates composed of personal protecting actual possession of property.
property, or of both real and personal property,
in so far as the same may be applicable. (Sec. 13) Reason: The owners of property have no
authority to use force and violence to eject
alleged usurpers who were in prior physical
PRESCRIPTION OF ACTION possession of it. They must file the appropriate
action in court and should not take the law in
The right of action to demand partition does not their own hands.
prescribe [De Castro v. Echarri (1911)], EXCEPT
where one of the interested parties openly and NOTE: The Rule on Summary Procedure
adversely occupies the property without applies only in cases filed before the
recognizing the co-ownership [Cordova v. MTC
Cordova (1958)] in which case, acquisitive
prescription may set in. DEFINITIONS AND DISTINCTIONS
If a co-owner repudiates the co-ownership and
FORCIBLY ENTRY UNLAFUL DETAINER
makes known such repudiation to the other co-
(Detentacion) (Desahucio)
owners, then partition is no longer a proper
Possession is
remedy of the aggrieved co-owner. He should
Possession of land by inceptively lawful but
file an accion reivindicatoria, which is
defendant is unlawful it becomes illegal by
prescriptible. [Roque v. IAC (1988)]
from the beginning as reason of the
he acquires termination of his
possession by force, right to possession of
intimidation, strategy, the property under
threat, or stealth his contract with the
plaintiff
Demand is
No previous demand jurisdictional if the
for defendant to ground is non-
vacate the premises is payment of rentals or
necessary failure to comply with
lease contract
Plaintiff must prove
that he was in prior
Plaintiff need not have
physical possession of
been in prior physical
the premises until he
possession
was deprived thereof
by defendant
The 1-year period is
Period is counted
generally counted
from the date of last
from date of actual
letter of demand
entry on land
The issue centers on
The issue centers on
whether the
who was in prior
defendants right to
possession de facto.
possess has expired
or not.
177

DISTINGUISHED FROM ACCION PUBLICIANA, agricultural tenants. Jurisdiction is with the

ACCION REINVINDICATORIA, ACCION HLURB
INTERDICTAL
In accion publiciana and accion reinvindicatoria:
The Three Kinds of Action for Recovery of 1. RTC has jurisdiction where the assessed
Possession value of the property exceeds P20K or,
in MM, P50k
ACCION ACCION ACCION 2. MTC has jurisdiction if the assessed
INTERDICT PUBLICIAN REINVINDICATO value does not exceed said amounts
AL A RIA
Summary A plenary
action for action for WHO MAY INSTITUTE THE ACTION AND
recovery of recovery of An action for WHEN; AGAINST WHOM MAINTAINED
physical real right of recovery of
possession possession ownership, which Who May Institute Proceedings (Rule 70, Sec. 1)
where the when necessarily 1. In Forcible Entry:
dispossessi dispossessi includes the a. A person deprived of possession of
on has not on has recovery of any land or building by force,
lasted for lasted for possession intimidation, strategy, threat, or
more than 1 more than stealth (FISTS)
year one year
All cases of 2. In Unlawful Detainer:
forcible a. Lessor, vendor, vendee or other
entry and person against whom any land or
unlawful building is unlawfully withheld
detainer, b. Or their legal representatives or
irrespective assigns
of the RTC has jurisdiction if value of
amount of the property exceeds P20,000 Period of Filing: Within ONE (1) year after such
damages or outside Metro Manila; exceeds unlawful deprivation or withholding of
unpaid P50,000 within Metro Manila. possession. Reckoning points:
rentals 1. For forcible entry, it is counted from
sought to be MTC has jurisdiction if value of date of entry or taking of possession
recovered property does not exceed the 2. For unlawful detainer, it is counted
should be above amounts from:
brought to (RA 7691 expanded the a. Date of last demand to vacate in
the MTC. jurisdiction of 1st level courts) case of non-payment of rent or non-
However, if compliance with conditions of the
not brought lease
within 1 b. Date of notice to quit, in case of
year, RTC tacit renewal of lease
has c. Date of revocation of the permit in
jurisdiction case of occupancy on mere
tolerance or under temporary
permit
HOW TO DETERMINE JURISDICTION
Against whom may the action be maintained -
In Accion Interdictal: In the proper Municipal Person or persons unlawfully withholding or
Trial Court depriving of possession, or any person/s
claiming under them:
NOTE: Amount of rents and damages 1. Action of Forcible Entry and Unlawful
claimed does not affect the jurisdiction Detainer (FEUD) may be maintained
of the MTC because they are only only against one in possession at the
incidental or accessory to the main commencement of the action
action 2. Tenant with right of possession may
bring action against another tenant
HOWEVER, municipal courts have no 3. Vendor may bring action for ejectment
jurisdiction over a FEUD case involving against vendee upon failure to pay
installments
178
4. FEUD lie against the very owner of the
property
5. Action may be maintained against
government officials or agents acting in
behalf of the government, even if
government is not made a party to the
action
PLEADINGS ALLOWED
Pleadings must be VERIFIED. (Rule 70, Sec. 4)
What must be alleged in a complaint for forcible
entry:
1. That plaintiff was in prior physical
possession of the property in litigation
until he was deprived thereof by
defendant
2. That the dispossession was through
FISTS
3. That the complaint was filed within 1
year from dispossession
What must be alleged in a complaint for unlawful
detainer:
1. That defendant is unlawfully
withholding possession from plaintiff
because his right to possess had expired
2. That landlord has made a demand upon
tenant to comply with the terms of the
contract and to return the possession of
the property, and that the tenant failed
to satisfy the demand within 15 or 5
days, in case of buildings
3. That the complaint is filed within 1 year
from demand
Allowed pleadings:
1. Complaint
2. Compulsory Counterclaim pleaded in
the answer
3. Cross-claim pleaded in the answer
4. Answer
ACTION ON COMPLAINT (Rule 70, Sec. 5)
From the examination of allegations in the
complaint, the court may:
1. Dismiss the case outright on any
grounds mentioned in Rule 16
2. If there is no ground for dismissal, court
issues summons
Answer by defendant (Rule 70, Sec. 6)
Defendant shall file his answer within 10 days
from service of summons
Effect of Failure to Answer (Rule 70, Sec. 7) -
Court shall render judgment; motu proprio or
upon motion
1. Judgment:
a. Warranted by the facts alleged in
the complaint
b. Limited to what is prayed for
2. Court may reduce the amount of
damages and attorneys fees claimed
a. For being excessive or otherwise
unconscionable
b. In the exercise of its discretion
c. No prejudice to applicability of Sec.
3(c), Rule 9 if there are 2 or more
defendants
Preliminary Conference (Rule 70, Sec. 8)
Preliminary conference shall be held not later
than 30 days after filing of last answer.
Submission of Affidavits and Position Papers
(Rule 70, Sec. 10) Affidavits and position
papers are to be submitted within 10 days from
receipt of the Order stating the matters taken in
the preliminary conference.
Rendition of Judgment (Rule 70, Sec. 11) Court
shall render judgment within 30 days after
receipt of affidavits and position papers.
WHEN DEMAND NECESSARY
Rule 70, Sec. 2 requires a prior written demand
against the lessee before the lessor can proceed
against him.
NOTE: This applies ONLY to unlawful
detainer cases.
It is only where defendant fails to comply with
the demand within the periods provided by Sec.
2 will his possession become unlawful.
Requisites before the lessor can proceed against
lessee
1. Demand is made by lessor to lessee:
a. Demand to pay and vacate; or
b. Demand to comply with conditions
of the lease and to vacate
2. Lessee fails to comply with the demand:
a. After 15 days in the case of lands;
or
b. After 5 days in case of buildings
NOTE: Demand contemplated by Sec. 2 is
jurisdictional and is always two-fold.
179
Demand upon a tenant may be oral. (Jakihaca v.
Aquino, 1990)
A person who occupies the land of another at
the latter's tolerance or permission, without any
contract between them is necessarily bound by
an implied promise that he will vacate upon
demand, failing which, an action for unlawful
detainer may be instituted against him.
(Dakudao v. Consolacion, 1983)
PRELIMINARY INJUNCTION AND
PRELIMINARY MANDATORY INJUNCTION
Court may grant preliminary injunction in
accordance with Rule 58 to prevent defendant
from committing further acts of dispossession
against plaintiff (Rule 70, Sec. 15).
How done: Possessor may present a motion in
the action for issuance of preliminary
mandatory injunction within 5 days from filing
of complaint to restore him in his possession.
Court shall decide the motion within 30 days
from filing.
Preliminary mandatory injunction shall be
available:
1. At the start of the action (Rule 70, Sec.
15)
2. On appeal to the RTC (Sec. 2) upon
motion of plaintiff within 10 days from
perfection of appeal
Preliminary preventive injunction is
available in either case. Note that Sec. 15
makes the provisions of Rule 58 applicable
to Rule 70.
NOTE: Note that there is no distinction as to
the type of ejectment case involved.
The injunction is to restore to plaintiff in
possession
1. If the court is satisfied that the
defendants appeal is frivolous or
dilatory, or
2. That the appeal of plaintiff is prima
facie meritorious
RESOLVING DEFENSE OF OWNERSHIP (Rule
70, Sec. 16)
In an action for unlawful detainer, the question
of possession is primordial while the issue of
ownership is generally unessential. The issue of
ownership should be raised by the affected
party in an appropriate action.
Under BP 129, when in FEUD cases, the
defendants raise the question of ownership in
his pleadings, and the issue of ownership, the
MTCs nevertheless have undoubted competence
to resolve the issue of ownership ONLY TO
DETERMINE THE ISSUE OF POSSESSION
Guidelines laid down by the Court in Refugia, et
al. v. CA regarding the legislative prescription in
Sec. 33 (2). BP 129:
1. Primal rule is that the principal issue
must be that of possession
a. Ownership is merely ancillary
b. Issue of ownership may be resolved
but only for the purpose of
determining the issue of possession
2. It must sufficiently appear from
allegations of complaint that what
plaintiff really and primarily seeks is
restoration of possession
3. Inferior court cannot adjudicate on the
nature of ownership where relationship
of lease has been sufficiently
established
a. UNLESS it be proven that there has
been a subsequent change in or
termination of that relationship
between parties
4. The rule in forcible entry, but not in
unlawful detainer, is that a party who
can prove prior possession can recover
such possession even against the owner
himself
a. Hence, it prior possession may be
ascertained in some other way,
inferior court cannot intrude into
the issue of ownership
5. Where the question of who has prior
possession hinges on the issue of who
the real owner is
a. Inferior court may resolve issue of
ownership
b. But such pronouncement is merely
provisional
c. It does not bar or prejudice an
action between the same parties
involving title
HOW TO STAY IMMEDIATE EXECUTION OF
JUDGMENT (Rule 70, Sec. 19)
180

GENERAL RULE: Judgment of the MTC against

defendant in ejectment cases is immediately Prohibited Pleadings:
executory 1. THIRD-party complaints
2. REPLY
EXCEPTION: When the following concur: 3. INTERVENTIONS
1. The defendant perfects his appeal 4. PETITION for relief from judgment
2. He files a sufficient supersedeas bond 5. PETITION for certiorari, mandamus, or
To pay the rents, damages, and prohibition against any interlocutory
costs accruing down to the time order issued by the court
judgment appealed from
The supersedeas bond shall be
transmitted by the MTC, with the
other papers, to the RTC Clerk
3. He deposits with the appellate court:
a. The amount of rent due from time
to time under the contract, or
b. In the absence of contract, the
reasonable value of the use and
occupation of premises for the
preceding month or period
determined by judgment on or
before the 10th day of each
succeeding month or period (Chua
v. CA, 1998)

The judgment of the Regional Trial Court against

the defendant shall be immediately executory,
without prejudice to a further appeal that may
be taken therefrom. (Rule 70, Sec. 21)

SUMMARY PROCEDURE, PROHIBITED

PLEADINGS

GENERAL RULE: All actions for FEUD shall be

governed by the summary procedure of Rule 70,
irrespective of the amount of damages or unpaid
rentals sought to be recovered

EXCEPTIONS:
1. In cases covered by the agricultural
tenancy laws
2. When the law otherwise expressly
provides

Prohibited Motions:
1. Motion for a BILL of particulars
2. Motion for EXTENSION of time to file
pleadings, affidavits, or any other paper
3. Motion for NEW trial, or for
reconsideration of a judgment, or for
reopening of trial
4. Motion to DISMISS the complaint;
Except on the ground for lack of
jurisdiction over the subject matter or
failure to comply with Sec. 12
5. Motion to DECLARE defendant in
default
6. DILATORY motions for postponement
181

CONTEMPT
According to Manner of Commission
NATURE 1. DIRECT CONTEMPT act committed in
the presence of or so near the court or
Contempt of Court is disobedience to the court judge as to obstruct or interrupt the
by acting in opposition to its authority, justice, proceedings before the same
and dignity. It signifies not only a willful 2. INDIRECT CONTEMPT one not
disregard of disobedience to the courts orders committed in the presence of the court.
but also conduct tending to bring the authority It is an act done at a distance which
of the court and administration of law into tends to belittle, degrade, obstruct, or
disrepute, or, in some manner, to impede the embarrass the court and justice
due administration of justice.
DIRECT CONTEMPT INDIRECT CONTEMPT
The power to declare person in contempt of Committed in the Not committed within
court and in dealing with him accordingly is an presence of or so near the presence of the
INHERENT power of the court. It is used as a a court court
means to protect and preserve the dignity of the There is charge and
Summary in nature
court, the solemnity of the proceedings, and hearing
administration of justice. Punishment:
Punishment: If committed against
If committed against RTC: Fine not
KINDS OF CONTEMPT; PURPOSE AND the RTC: Fine of not exceeding P30,000
NATURE OF EACH exceeding P2,000 and/or imprisonment
and/or imprisonment not exceeding 6
According to Nature not exceeding 10 days months
1. CRIMINAL CONTEMPT conduct If committed against If committed against
directed against the authority and the MTC: Fine not MTC: Fine not
dignity of the court or a judge acting exceeding P200 and exceeding P5,000
judicially or imprisonment not and/or imprisonment
2. CIVIL CONTEMPT failure to do exceeding 1 day not exceeding 1
something ordered to be done by a month
court or by a judge for the benefit of the Remedy is certiorari
Remedy is appeal
opposing party or prohibition
Otherwise known as Otherwise known as
CRIMINAL Contempt in Facie Constructive
CIVIL CONTEMPT
CONTEMPT Curiae Contempt
Punitive in nature Remedial in nature
Purpose is to provide a Contempt, whether direct or indirect, may be
Purpose is to remedy for an injured civil or criminal depending on the nature and
preserve the courts suitor and to coerce effect of contemptuous act.
authority and to compliance with an
punish for order; for the The real character of the proceedings in
disobedience of its preservation of the contempt cases is to be determined by the relief
orders rights of private sought or by the dominant purpose. The
persons proceedings are to be regarded as criminal
Intent is necessary Intent is not necessary when the purpose is primarily punishment, and
Instituted by the civil when the purpose is primarily
aggrieved party, or his compensatory or remedial.
State is the real successor, or someone
prosecutor who has a pecuniary
interest in the right to DIRECT CONTEMPT
be protected
Proof required is Proof required is more For a person to be adjudged guilty of direct
proof beyond than mere contempt, he must commit a misbehavior in the
reasonable doubt preponderance presence of or so near a judge as to interrupt the
If accused is If judgment is for administration of justice
acquitted, there can respondent, there can
be no appeal be appeal Grounds for Direct Contempt (Rule 71, Sec. 1)
1. DISRESPECT toward the court;
182

2. OFFENSIVE personalities toward others 2. ABUSE of or any unlawful interference

3. REFUSAL to be sworn or answer as with processes or proceedings of a
witness or subscribe an affidavit when court not constituting direct contempt
lawfully required to do so 3. DISOBEDIENCE or resistance to lawful
4. MISBEHAVIOR in the presence of or so writ, process, order, or judgment of a
near a court as to obstruct or interrupt court, or any unlawful intrusion to any
the proceedings real property after being ejected
5. When the counsel WILLFULLY and 4. FAILURE to obey subpoena duly served
deliberately engages in forum shopping 5. ASSUMING to be an attorney or officer
of a court, and acting as such without
Procedure: Summarily adjudged in contempt by authority
such court 6. IMPROPER conduct tending to impede,
obstruct, or degrade administration of
By whom initiated: justice
1. Generally, civil contempt proceedings 7. RESCUE, or attempted rescue, of a
should be instituted by an aggrieved person or property in custody of an
party, or his successor, or someone who officer
has pecuniary interest in the right to be 8. Failure by COUNSEL to inform the court
protected of the death of his client
2. In criminal contempt proceedings, it is
generally held that the State is the real Procedural requisites for indirect contempt
prosecutor proceedings:
1. A charge in writing or an order of the
Penalties: court to appear and explain
2. An opportunity for respondent to
OFFENSE PENALTY comment on the charge and to appear
Fine not exceeding and explain his conduct
If RTC or a court of
P2,000 and/or
equivalent or higher Two modes of commencing a proceeding for
Imprisonment not
rank indirect contempt (Rule 70, Sec. 4)
exceeding 10 days
Fine not exceeding 1. Motu proprio by the court against
If lower court: P200 and/or which contempt was committed
Imprisonment not a. By order or any other formal charge
exceeding 1 day requiring respondent to show why
he should not be punished for
Remedy of a person adjudged in direct contempt contempt
(Rule 71, Sec. 2)
1. He cannot appeal 2. Independent action in all other cases
2. But he may file certiorari or prohibition a. By a charge commenced by a
a. Execution of judgment shall be verified petition with supporting
suspended pending resolution of particulars
such petition, PROVIDED:
(1) He files a bond fixed by the Where Charge is to be Filed (Rule 70, Sec. 5)
court which rendered 1. General rule: Proceeding for Indirect
judgment, and Contempt shall be filed and tried by the
(2) Conditioned that he will abide court against which the contumacious
by and perform the judgment conduct was committed.
should the petition be decided
against him 2. Exceptions:
a. If committed against a lower court,
it may be tried by the RTC,
INDIRECT CONTEMPT regardless of the imposable
penalty; and
Specific acts constituting indirect contempt (Rule b. If committed against the SC, it may
70, Sec. 3) cause it to be investigated by the
1. MISBEHAVIOR of an officer of a court in prosecutor and filed with the RTC,
the performance of his official duties or or for hearing and recommendation
in his official transactions where the charge involves
questions of fact
183

payment of rentals, which is a civil debt, is

Penalties for indirect contempt (Rule 71, Sec. 7) covered by the constitutional guarantee against
imprisonment. [Regalado]
OFFENSE PENALTY
If against RTC, or Fine not exceeding P30,000
court of and/or CONTEMPT AGAINST QUASI-JUDICIAL
equivalent or Imprisonment not BODIES (Rule 71, Sec. 12)
higher rank exceeding 6 months
Fine not exceeding P500, Rule 71 shall apply to contempt committed
If committed against persons, entities, bodies, or agencies
and/or
against lower exercising quasi-judicial functions or have
Imprisonment not
court suppletory effect to such rules as they may have
exceeding 1 month
Offender may also be adopted.
ordered to make complete
restitution to the party RTC of the place where the contempt was
injured by such violation of committed shall have jurisdiction.
If contempt the property involved or
consists in such amount as may be It is not within the jurisdiction and competence
violation of a writ alleged and proved. of quasi-judicial bodies to decide indirect
of injunction, TRO, contempt cases. The requirement for a verified
or status quo If there is nothing more to petition must also be complied with (e.g. DARAB
order return, offender is has no power to decide the contempt charge
personally liable for the filed before it). [Land Bank v Listana (2003)]
restitution of the money
equivalent to the lost thing Rule 71, Sec. 12 confers contempt powers on all
(Rosario Textile Mills v. CA) Quasi-Judicial entities or supplements their
If committed Penalty shall depend upon rules, unless the applicable law provides
against a person the provisions of the law otherwise.
or entity which authorizes penalty
exercising quasi- for contempt against such Acts or violations against quasi-judicial bodies
judicial functions persons or entities punishable as contempt: where a person,
without lawful excuse, fails to appear, make
Remedy of a person adjudged in indirect oath, give testimony or produce documents
contempt (Rule 71, Sec. 11) when required to do so by the official or body
exercising such powers. Other acts or violations
May be appealed to the proper court as in cannot be punished as contempt unless
criminal cases, but execution shall not be specifically defined in the governing law as
suspended until BOND is filed. contempt of court or if it authorizes the quasi-
judicial body to punish for contempt, and
WHEN IMPRISONMENT SHALL BE IMPOSED providing the corresponding penalty. [People v.
Mendoza (1953), 13, Ch. 3, Bk VII, Admin Code of
When the contempt consists in the refusal or 1987]
omission to do an act which is yet in the power
of the respondent to perform, he may be
imprisoned by order of the court concerned
until he performs it. (Rule 71, Sec. 8)

The respondent carried the keys to his prison

in his own pocket. [Galvez v. Republic Surety &
Insurance Co., Inc. (1959)]

Only the judge who ordered the confinement of

the person for contempt of court can issue the
Order of Release. [Inoturan v Limsiaco, Jr.
(2005)]

Rule 71, Sec. 8 does not apply to tenants who

refused or failed to pay their rentals to the
special administratrix of the property. The non-
184

THE SPECIAL CIVIL ACTIONS

JURISDICTION VENUE
Personal Property:
1. MTC if value not more than P300,000 outside Metro Manila, or
not more than P400,000 in Metro Manila (Sec. 33, BP129)
Rule 4 applies
2. RTC value exceeds P300,000 outside Metro Manila, or P400,000
in Metro Manila, or if incapable of pecuniary estimation (Sec. 19,
If the action affects title to or possession of real property
BP129)
Venue is where the real property involved or a portion thereof is situated
INTERPLEADER
Real Property
All other actionsAt the election of the plaintiff
1. MTC assessed value not more than P20,000 outside Metro
1. Where plaintiff or any of the principal plaintiffs reside; or
Manila or not more than P50,000 in Metro Manila (Sec. 33, BP
2. Where defendant or any of the principal defendants resides; or
129)
3. In case of an non-resident, where he may be found
2. RTC value exceeds P20,000 if outside Metro Manila, or P50,000
if in Metro Manila, or incapable of pecuniary estimation (Sec. 19,
BP129)
Rule 4 applies

GENERAL RULE: In the appropriate RTC If the action affects title to or possession of real property
Venue is where the real property involved or a portion thereof is situated
DECLARATORY RELIEF EXCEPTION: Where the action is for reconveyance, cancellation or quieting
of title to real property, jurisdiction will depend on the assessed value of the All other actionsAt the election of the plaintiff
property 1. Where plaintiff or any of the principal plaintiffs reside; or
2. Where defendant or any of the principal defendants resides; or
3. In case of an non-resident, where he may be found
REVIEW OF
JUDGMENTS AND With the SC
Certiorari rules apply
FINAL ORDERS OF Via Special Civil Action of Certiorari
COMELEC/COA
RTC, CA, SC,
CERTIORARI RTC where the respondent is situated, where petition relates to an act or omission of a
Sandiganbayan (in aid of its appellate jurisdiction),
PROHIBITION corporation, board, an officer, or person
COMELEC (in election cases involving an act or omission by MTC or RTC, in
MANDAMUS (Rule 65, Sec. 4)
aid of its appellate jurisdiction_
Action can be brought in: The SC, CA, or RTC exercising jurisdiction over the territorial area where
RTC, CA, SC
respondent resides or any of the respondent resides
Sandiganbayan (exclusive original jurisdiction over quo warranto cases
filed by the PCGG)
QUO WARRANTO If commenced by the SolGen, it may be filed with: RTC Manila, CA, or SC
COMELEC (exclusive jurisdiction over cases falling under the OEC)
SEC for quo warranto against duly licensed association (Corp Code rules
File in the SEC (following the Corp Code):If petition for quo warranto is against a corporation or
apply, not the ROC)
against persons who usurp an office in a corporation
EXPROPRIATION With the RTC Where the real property involved, or a portion thereof, is situated
JUDICIAL
With the RTC Where the real property involved, or a portion thereof, is situated
FORECLOSURE
Rule 4 applies
PARTITION With the RTC
185

If the action affects title to or possession of real property

Venue is where the real property involved or a portion thereof is situated

All other actionsAt the election of the plaintiff

FORCIBLE ENTRY AND
With the MTC Where the real property involved, or a portion thereof, is situated
UNALWFUL DETAINER
If committed against RTC or a court of equivalent or higher rank, or against an officer appointed
by it: File with such court
CONTEMPT MTC, RTC, CA, SC If committed against a lower court. File with the RTC of the place in which lower court is sitting
If act was committed against persons or entities exercising quasi-judicial functions: File with the
RTC of the place wherein contempt was committed
186
SPECIAL RULES
REVISED RULES ON SUMMARY
PROCEDURE
CASES COVERED BY THE RULE (Sec. 1)
Rule shall govern the summary procedure in the
MTC, MTC in Cities, MCTC in the following cases
falling within their jurisdiction:
For Civil Cases:
1. Cases of forcible entry and unlawful
detainer
a. Irrespective of the amount of
damages or unpaid rentals sought
to be recovered
b. Where attorneys fees are awarded,
it shall not exceed P20,000
2. All other civil cases where total amount
of plaintiffs claim does not exceed
P100,000 or P200,000 in Metropolitan
Manila, exclusive of interest and costs
a. EXCEPT: probate proceedings
For Criminal Cases
1. Traffic laws, rules, and regulations
violation
2. Rental law violations
3. Municipal or city ordinance violations
4. All other criminal cases where penalty
prescribed by law for offense charged is
imprisonment not exceeding 6 months
and/or a fine not exceeding P1,000
a. Irrespective of other imposable
penalties, accessory or otherwise,
or of civil liability arising therefrom
b. In offenses involving damage to
property through criminal
negligence, this rule shall govern
where imposable fine does not
exceed P10,000
Rule shall not apply:
1. To a civil case where plaintiffs cause of
action is pleaded in the same complaint
with another cause of action subject to
ordinary procedure
2. To a criminal case where offense
charged is necessarily related to
another criminal case subject to
ordinary procedure
EFFECT OF FAILURE TO ANSWER (Sec. 6)
If defendant fail to answer the complaint within
the period provided, court (motu proprio or on
motion of plaintiff) shall render judgment
The judgment:
1. As may be warranted by the facts
alleged in the complaint and
2. Limited to what is prayed for
The court may in its discretion reduce the
amount of damages and attorneys fees claimed
for being excessive or unconscionable without
prejudice to the applicability of Sec. 4, Rule 18
ROC, if there are 2 or more defendants
PRELIMINARY CONFERENCE AND
APPEARANCES OF PARTIES (Sec. 7)
A preliminary conference shall be held not later
than 30 days after the last answer is filed.
Rules on pre-trial in ordinary cases shall be
applicable unless inconsistent with the
provisions of this Rule
Failure of plaintiff to appear in preliminary
conference
1. Cause for dismissal of complaint
2. Defendant who appears in the absence
of plaintiff shall be entitled to judgment
on his counterclaim in accordance with
Sec. 6
3. All cross-claims shall be dismissed
If sole defendant shall fail to appear
1. Plaintiff entitled to judgment in
accordance with Sec. 6
2. Rule shall not apply where one of 2 or
more defendants sued under a common
cause of action who had pleaded a
common defense shall appear at
preliminary conference
187

KATARUNGANG PAMBARANGAY LAW the parties thereto agree to submit their

(PD 1508; RA 7160 as amended)
SCOPE AND APPLICABILITY OF THE RULE
RA 7610 Sec. 399-422, and 515 is applicable.
The LGC is now the governing law on
Katarungang Pambarangay. PD 1508 was
expressly repealed
CASES COVERED
All disputes, civil and criminal in nature, where
parties actually reside in the SAME
CITY/MUNICIPALITY are subjected barangay
conciliation.
differences to amicable settlement by
an appropriate lupon;
7. Such other classes of disputes which the
President may determine in the interest
of Justice or upon the recommendation
of the Secretary of Justice.
The court in which non-criminal cases not falling
within the authority of the lupon under this
Code are filed may, at any time before trial motu
propio refer the case to the lupon concerned for
amicable settlement.
VENUE (RA 7610, Sec. 409)

SUBJECT MATTER FOR AMICABLE PARTIES LUPON

SETTLEMENT (Sec. 408, RA 7160) Between actual
Lupon of said
residents of the same
barangay
The lupon of each barangay shall have authority barangay
to bring together the parties actually residing in Lupon of the barangay
the same city or municipality for amicable Between actual where the respondent
settlement of all disputes. residents of different or any of the
barangays but within respondents actually
WHEN PARTIES MAY GO DIRECTLY TO same city/municipality resides at the option
COURT of complainant
Lupon of barangay
In these cases, referral to barangay conciliation Involving real property were the real property
is not a condition precedent for filing a case to or any interest therein or the larger portion
court: thereof is located
Between parties
Lupon of the barangay
1. Where one party is the government, or arising at the
were the workplace or
any subdivision or instrumentality workplace or at
institution is located
thereof; institutions of learning

2. Where one party is a public officer or EXECUTION

employee, and the dispute relates to the
performance of his official functions; The amicable settlement or arbitration award
may be enforced by execution by the lupon
3. Offenses punishable by imprisonment within six (6) months from the date of the
exceeding one (1) year or a fine settlement. After the lapse of such time, the
exceeding Five thousand pesos settlement may be enforced by action in the
(P5,000.00); appropriate city or municipal court. (Sec. 417,
RA 7160)
4. Offenses where there is no private
offended party; REPUDIATION

5. Where the dispute involves real
properties located in different cities or
municipalities unless the parties
thereto agree to submit their
differences to amicable settlement by
an appropriate lupon;
6. Disputes involving parties who actually
reside in barangays of different cities or
municipalities, except where such
barangay units adjoin each other and
Any party to the dispute may, within ten (10)
days from the date of the settlement, repudiate
the same by filing with the lupon chairman a
statement to that effect sworn to before him,
where the consent is vitiated by fraud, violence,
or intimidation. Such repudiation shall be
sufficient basis for the issuance of the
certification for filing a complaint as
hereinabove provided. (Sec. 418, RA 7160)
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RULES OF PROCEDURE FOR SMALL
CLAIMS CASES (A.M. No. 08-8-7-SC)
SCOPE AND APPLICABILITY OF THE RULE
This Rule shall govern the procedure in actions
before the MeTC, MTC in Cities, MTC and MCTC
for payment of money where the value of the
claim does not exceed P100,000 exclusive of
interest and costs. (Sec. 2)
This Rule is applicable in all actions which are;
(Sec. 4)
1. Purely civil in nature where the claim or
relief prayed for by the plaintiff is solely
for payment or reimbursement of sum
of money, and
2. Civil aspect of criminal action, or
reserved upon the filing of the criminal
action in court, pursuant to Rule of 111
of the Revised Rules of Criminal
Procedure.
These claims or demands may be;
1. For money owned under any of the
following;
a. Contract of Lease;
b. Contract of Loan;
c. Contract of Services;
d. Contract of Sale; or
e. Contract of Mortgage;
2. For damages arising from any of the
following;
a. Fault or negligence;
b. Quasi-contract; or
c. Contract;
3. The enforcement of a barangay
amicable settlement or an arbitration
award involving a money claim covered
by this Rule pursuant to Sec. 417, LGC.
COMMENCEMENT OF SMALL CLAIMS ACTION;
RESPONSE (Sec. 5)
How commenced: By filing with the court an
accomplished and verified STATEMENT OF
CLAIM in duplicate
Attachments to the Statement of Claim:
1. Certification of Non-forum Shopping
2. Two (2) duly certified photocopies of
the actionable document/s subject of
the claim
3. Affidavits of witnesses and other
evidence to support the claim
NOTE: No evidence shall be allowed during
the hearing which was not attached to or
submitted together with the Claim. UNLESS
good cause is shown for admission of
additional evidence.
No formal pleading, other than the Statement of
Claim, is necessary to initiate a small claims
action.
After examination of allegations of the Claim, the
court may dismiss outright the case for any of
the grounds apparent for the dismissal of a civil
action. (Sec. 9)
If no ground of dismissal is found, the court shall
issue Summons directing defendant to submit a
verified response. (Sec. 10)
The defendant shall file with the court and serve
on the plaintiff a duly accomplished and verified
Response within a non - extendible period of ten
(10) days from receipt of summons (Sec. 11).
Attachments:
1. Certified photocopies of documents
2. Affidavits of witnesses
3. Evidence in support
NOTE: No evidence shall be allowed
during hearing which was not attached
or submitted together with the
Response.
Should the defendant fail to file his response
within the required period, the court by itself
shall render judgment as may be warranted by
the facts alleged in the Statement of claim
limited to what is prayed for. The court
however, may, in its discretion, reduce the
amount of damages for being excessive or
unconscionable. (Sec. 12)
PROHIBITED PLEADINGS AND MOTIONS (Sec.
14)
The following pleadings, motions, and petitions
shall not be allowed in the cases covered by this
Rule:
1. Motion to dismiss the compliant except
on the ground of lack of jurisdiction;
2. Motion for a bill of particulars;
3. Motion for new trial, or for
reconsideration of a judgment, or for
reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file
pleadings, affidavits, or any other paper;
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6. Memoranda; immediate referral by the Executive

7. Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court;
8. Motion to declare the defendant in
default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints; and
12. Interventions.
APPEARANCES
The parties shall appear at the designated date
of hearing personally or through a
representative authorized under a Special
Power of Attorney to:
1. Enter into an amicable settlement,
2. Submit of Judicial Dispute Resolution
(JDR) and
3. Enter into stipulations or admissions of
facts and of documentary exhibits (Sec.
16)
Judge to the pairing judge for hearing
and decision within five (5) working
days from referral; and
2. In case of single sala court, the pairing
judge shall hear and decide the case in
the court of origin within five (5)
working days from referral by the JDR
judge.
FINALITY OF JUDGMENT
After the hearing, the court shall render its
decision on the same day, based on the facts
established by the evidence.
The decision shall immediately be entered by
the Clerk of Court in the court docket for civil
cases and a copy thereof forthwith served on the
parties.
The decision shall be final and unappealable.
(Sec. 23)

No attorney shall appear in behalf of or

represent a party at the hearing, unless the
attorney is the plaintiff or defendant. (Sec. 17)

Failure to appear:
1. If plaintiff fails to appear it shall be a
cause for dismissal without prejudice.
Defendant present shall be entitled to
judgment on permissive counterclaim.

2. If defendant fails to appear same

effect as failure to file Response.

HEARING; DUTY OF THE JUDGE

At the beginning of the court session, the judge

shall read aloud a short statement explaining the
nature, purpose and the rule of procedure of
small claims cases. (Sec. 20)

At the hearing, the judge shall conduct JDR

through mediation, conciliation, early neutral
evaluation, or any other mode of JDR. (Sec. 21)

If JDR fails and the parties agree in writing that

the hearing of the case shall be presided over by
the judge who conducted the JDR, the hearing
shall so proceed in an informal and expeditious
manner and terminated within one (1) day. (Sec.
22)

Absent such agreement

1. In case of a multi-sala court , the case
shall, on the same day, be transmitted to
the Office of the Clerk of Court for
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EFFICIENT USE OF PAPER RULE (A.M.
No. 11-9-4-SC)
FORMAT AND STYLE
All pleadings, motions and similar papers
intended for the court and quasi-judicial bodys
consideration and action (court-bound papers)
shall:
1. Be written in single space with one-and-
a half space between paragraphs,
2. Use an easily readable font style of the
partys choice, of 14-size font, and on a
13 inch by 8.5- inch white bond paper
All decisions, resolutions and orders issued by
courts and quasi-judicial bodies under the
administrative supervision of the Supreme
Court shall comply with these requirements.
Similarly covered are the reports submitted to
the courts and transcripts of stenographic notes.
All members of the Court shall share the
extra copies of annexes in the interest of
economy of paper.
In the Court of Appeals and the Sandiganbayan,
1. One original (properly marked) and
2. Two copies with their annexes;
In the Court of Tax Appeals,
1. One original (properly marked) and
2. 2 copies with annexes
On appeal to the En Banc:
a. One Original (properly marked)
b. 8 copies with annexes; and
In other courts,
1. One original (properly marked)
2. With the stated annexes attached to it.
ANNEXES SERVED ON ADVERSE PARTY

MARGINS AND PRINTS A party required by the rules to serve a copy of

The parties shall maintain the following margins
on all court-bound papers:
1. Left hand margin of 1.5 inches from the
edge;
2. Upper margin of 1.2 inches from the
edge;
3. Right hand margin of 1.0 inch from the
edge;
4. Lower margin of 1.0 inch from the edge.
Every page must be consecutively numbered.
COPIES TO BE FILED
Unless otherwise directed by the court, the
number of court- bound papers that a party is
required or desires to file shall be as follows:
his court-bound on the adverse party need not
enclose copies of those annexes that based on
the record of the court such party already has in
his possession.
In the event a party requests a set of the annexes
actually filed with the court, the part who filed
the paper shall comply with the request within
five days from receipt.
APPLICABILITY
This Rule applies to all courts and quasi-judicial
bodies under the administrative supervision of
the Supreme Court.

In the Supreme Court, END OF CIVPRO!!!

1. One original (properly marked) and 4
copies
2. Two sets of annexes, one attached to the
original and an extra copy

If the case is referred to the Court En

Banc:
a. Parties shall file 10 additional
copies.
b. For the En Banc, the parties need to
submit only 2 sets of annexes, one
attached to the original and an
extra copy.
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