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LECTURE NOTES ON CIVIL PROCEDURE 2.1.

b The allegation is for recovery or payment of the


sum of 500,000, subject matter jurisdiction is with the RTC
WHAT IS CIVIL PROCEDURE
2.1.c The plaintiff claims PHP 500,000 but after trial he
It is the procedure governing the filing, processing and is only entitled to PHP 100,000, subject matter jurisdiction
adjudication of civil actions. It essentially is the lawyer’s is with the RTC. See: Ratilla v. Tapucar, 75 SCRA 64
law that defines the rules of the game that lawyers and
judges play. 2.1.d It cannot be made to depend on the defenses
interposed in an answer or a motion to dismiss AS IT IS
It is embraced in Rules 1 to 71 of the Rules of Court and THE COMPLAINT, PETITION OR INITIATORY
after its revision, is now commonly known as the 1997 PLEADING THAT BRINGS THE CASE FOR TRIAL AND
Rules of Civil Procedure. It is divided into the following JUDGMENT – ALTHOUGH THE DEFENDANT MAY IN
topics: General Provisions (Rule 1), Ordinary Civil Actions HIS ANSWER OR MOTION ATTACK JURISDICTION – if
(Rules 2-5), Procedure in Regional Trial Courts (Rules 6- the Rule were otherwise – NO ACTION CAN PROSPER
39), Appeals (Rules 40-43), Procedure in the Court of as all the defendant has to do is to allege that jurisdiction
Appeals (Rules 44-55), Procedure in the Supreme Court is vested in another court. The EXCEPTION is the defense
(Rule 56), Provisional Remedies (Rules 57-61), and of agricultural tenancy. See Section 3, Rule 70
Special Civil Actions (Rules 62-71).
2.2 Determined by the law in force at the time of the
Included within its scope are the 1991 Rules on Summary commencement of the action
Procedure and Local Government Code provisions on the
Katarungang Pambarangay. 2.2.a If action for payment of a sum of money is filed
after the effectivity of RA 7961 on April 15, 1994
JURISDICTION (Expanding the jurisdiction of the MTC and implemented
by Adm. Circular 9-94-June 14, 1994) interest, damages of
Any discussion of procedural rules should always be whatever kind ( as long as incidental), attorney’s fees,
preceded by a discussion of jurisdiction. litigation expenses and costs are not to be considered in
fixing the jurisdictional amount, but must be specifically
The presence of jurisdiction gives rise to the application of alleged and filing fees paid thereon
the rules for the purpose of resolving the action that is
brought before a court. Absent jurisdiction, the only thing a 2.2.b There is a shipment of goods from HK to Manila.
court can do as provided by the rules is to dismiss the The shipment was short. Consignee sued in Manila,
action. If a court acts without jurisdiction, all its acts are carrier moved to dismiss for lack of jurisdiction since the
null and void. Further, any decision it may render is not a Bill of Lading provided that in case of dispute, suit must be
decision in contemplation of law and cannot be executory. brought in HK. Motion will not prosper as jurisdiction is
See: Abbain v. Chua 22 SCRA 748, Estoesta vs. CA 179 conferred by law and cannot be stipulated by the parties.
SCRA 203, Dava v. People 202 SCRA 62
DISTINCTIONS BETWEEN THE NATURE OF
Simply defined JURISDICTION refers to the power and JURISDICTION EXERCISED BY THE COURTS
authority of a court or tribunal to hear, try and decide a
case. It has also been defined as the authority by which 1.AS TO THE NATURE OF THE EXERCISE OF
courts and judicial officers take cognizance of and decide JURISDICTION – it is General, meaning it is exercised
cases. over all kinds of cases or Limited, meaning it exercised
over and extends only to a particular or specified cases
REQUISITES FOR A VALID EXERCISE OF
JURISDICTION 2.AS TO THE NATURE OF THE CAUSE OR THE
ACTION – it is Original, meaning it is exercised by courts
1.It must have jurisdiction over the persons of the parties. in the first instance or Appellate, meaning it is exercised
It is acquired over the plaintiff upon his filing of a by a superior court to review and decide a cause or action
complaint. On the other hand, it is acquired over the previously decided by a lower court.
defendant by his voluntary appearance before the court or
the employment of the coercive power of legal process. 3.AS TO THE EXTENT OF THE EXERCISE OF
JURISIDICTION – it is Exclusive, meaning it is confined to
2.It must also have jurisdiction over the subject matter in a particular court or CONCURRENT, meaning two or more
controversy Jurisdiction over the subject matter of the courts have jurisdiction at the same time and place. In this
compliant as determined by the allegations in the instance, the court which has first validly acquired
complaint and the law in force at the time of the jurisdiction takes it to the exclusion of the others. NOTE
commencement of the action. THOUGH the DOCTRINE OF HIERARCHY OF COURTS
which requires litigants to initially seek proper relief from
2.1 Determined by allegations in the complaint the lower courts in those cases where the Supreme Court
has concurrent jurisdiction with the Court of Appeals and
2.1.a The facts allege dispossession of the property by the Regional Trial Court to issue the extraordinary writs of
force – the allegations make out a case for forcible entry – certiorari, prohibition or mandamus. The Supreme Court is
The law provides that such cases fall within the jurisdiction a court of last resort and its jurisdiction to issue extra-
of the MTC. ordinary writs should be exercised only when absolutely
necessary, or where serious and important reasons

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therefor exist. See Pearson v. IAC, 295 SCRA 27. Also, 1.3 In determining which court has jurisdiction, the
concurrence of jurisdiction does not grant any party applicable test is the NATURE OF THE ACTION TEST
seeking any of the extra-ordinary writs the absolute (Determination as to whether or not the action is capable
freedom to file the petition with the court of his choice. of pecuniary estimation. If not capable, jurisdiction is with
See: Ouano vs. PGTT International Investment the RTC. If capable-jurisdiction is determined by the
Corporation, 384 SCRA 587 amount claimed/value of the personal property) BUT this
test must yield to the PRIMARY OBJECTIVE TEST (where
4.AS TO SITUS – it is Territorial, meaning it is exercised notwithstanding the fact that the action appears to be
within the limits of the place where the court is located or incapable of pecuniary estimation, if the primary objective
Extra-Territorial meaning it is exercised beyond the is to recover real property, jurisdiction will be determined
confines of the territory where the court is located. by the assessed value of the real property)

WHAT HAPPENS WHEN JURISDICTION IS ACQUIRED 2. DETERMINATION OF AMOUNTS OF THE CLAIM


TO DETERMINE JURISDICTION AND PAYMENT OF
Jurisdiction once acquired continues until the case is DOCKET FEES -
terminated. It is not affected by subsequent legislation
placing jurisdiction in another tribunal. See Mercado vs. 2.1 Foreclosure of chattel – to collect 100K but actual
Ubay, 187 SCRA 719. The exception is when the value is 500K – MTC – RULE: Jurisdiction is determined
expressly provides for retroactivity. See Latchme by the amount claimed by the plaintiff.
Motoomull v. Dela Paz, 187 SCRA 743
2.2 Action for removal of improvements with prayer for
DOCTRINE OF PRIMARY JURISDICTION 10,000 for attorney’s fees – RTC incapable of pecuniary
estimation.
That which vests in an administrative tribunal the
jurisdiction to determine a controversy requiring the 2.3 Action to collect sum of money – within
exercise of sound administrative discretion – stated jurisdiction of the MTC but with accessory prayer for
otherwise – if jurisdiction is vested upon an administrative damages beyond MTC jurisdiction – MTC - if action is
body, no resort to courts can be made until the personal, damages are to be excluded – (Adm Circ. 09-94
administrative body shall have acted on the matter. – June 14, 1994) for determining jurisdiction but payment
is still to be collected – Damages, Interest, Attorney’s fees
WHEN CAN THE ABSENCE OF JURISDICTION BE and Litigation costs.
QUESTIONED
BUT – if action is for damages over 400K – RTC because
The general rule is jurisdiction may be questioned at any it is the main cause of action or one of the causes of
stage of the proceedings, even on appeal, BUT a party action.
may be barred from raising it on the ground of laches or
estoppel when he has actually invoked the jurisdiction of 3.IF DOCKET FEES ARE INCORRECT – The trial court
the court by participating in the proceedings, then should allow the plaintiff to pay within a reasonable period
belatedly questions lack of jurisdiction after judgment has of time before the expiration of the applicable prescriptive
gone against him. See: Tijam v. Sibonghanoy, 23 SCRA or reglamentary period – EFFECT – defendant must move
29, Lopez v. Northwest 223 SCRA 469, Soliven v. to dismiss the complaint on the ground of lack of
FastForms Phil. Inc, GR No. 139091, October 18, 2004, jurisdiction – if not he may be considered to be in estoppel.
citing PNOC v. CA,. 297 SCRA 402, APT v. CA 300 SCRA See NSC v. CA – GR 123215, Feb 2, 1999)
597 and Producers Bank v. NLRC, 298 SCRA 517. See
also: Sections 2 and 3, Rule 47 – Annulment of Judgment 4. DOCKET FEES FOR MAIN/REAL ACTION PAID BUT
based on extrinsic fraud or lack of jurisdiction.If based on THOSE FOR RELATED DAMAGES ARE NOT PAID –Trial
lack of jurisdiction before it is barred by laches or estoppel. court may expunge the claims or allow on motion, a
reasonable time for amendment of the complaint or accept
PROBLEM AREAS AFFECTING JURISDICTION payment of the requisite legal fees.

1. ACTIONS INCAPABLE OF PECUNIARY 5.IF CLAIMS ARE UNSPECIFIED BUT ARISE AFTER
ESTIMATION FILING –The required additional fee shall constitute a lien
on the judgment
1.1 Generally, it is one where the basic issue is
something other than the right to recover money, where LEVELS OF SUBJECT MATTER JURISDICTION
the money claim is incidental to or is a consequence of the
principal relief being sought. It is a claim, the subject of 1.JURISDICTION OF THE SUPREME COURT
which cannot be estimated in terms of money.
The jurisdiction of the Supreme Court in civil cases of
1.2 Examples: Action for specific performance – which it cannot be deprived and which cannot be
although damages are being sought BUT if damages are diminished by Congress is to review, revise, reverse,
part of an alternative prayer, jurisdiction should be based modify, or affirm on appeal or certiorari as the law or the
on the amount. OTHERS: Action for appointment of Rules of Court may provide, final judgments and orders of
receivers, expropriation, interpleader, support, and lower courts in: (a) all cases in which the constitutionality
rescission or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order,

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instruction, ordinance, or regulation is in question; (b) all pesos (P200,000.00) or for civil actions in Metro Manila,
cases involving the legality of any tax, impost, where such value exceeds Four hundred thousand pesos
assessment, or toll, or any penalty imposed in relation (P400,000.00) except actions for forcible entry into and
thereto; (c) all cases in which the jurisdiction of any lower unlawful detainer of lands or buildings, original jurisdiction
court is in issue; and (d) all cases in which only an error or over which is conferred upon the Metropolitan Trial Courts,
question of law is involved. Municipal Trial Courts, and Municipal Circuit Trial Courts;
(3) all actions in admiralty and maritime jurisdiction where
The foregoing Constitutional definition is of appellate the demand or claim exceeds Two hundred thousand
jurisdiction. Congress, however, is not prohibited from pesos (P200,000.00) or in Metro Manila, where such
increasing or adding to this Constitutionally-defined demand or claim exceeds Four hundred thousand pesos
jurisdiction. And so Congress has given the Supreme (P400,000.00); (4) all matters of probate, both testate and
Court original jurisdiction over cases affecting intestate, where the gross value of the estate exceeds Two
ambassadors, other public ministers, and consuls and hundred thousand pesos (P200,000.00) or, in probate,
petitions for the issuance of writs of certiorari, prohibition both testate and intestate, where the gross value of the
and mandamus against the Court of Appeals. Congress estate exceeds Two hundred thousand pesos
has also vested the Supreme Court with jurisdiction, (P200,000.00) or, in probate matters in Metro Manila,
concurrent with the RTCs, over petitions for the issuance where such gross value exceeds Four hundred thousand
of the writs of certiorari, prohibition, habeas corpus, and in pesos (P400,000.00); (5) all actions involving the contact
actions brought to prevent and restrain violations of law of marriage and marital relations; (6) all cases not within
concerning monopolies and combinations in restraint of the exclusive jurisdiction of any court, tribunal, person or
trade. body exercising jurisdiction of any court, tribunal, person
or body exercising judicial or quasi-judicial functions; (7) all
The appellate jurisdiction in civil cases of the Supreme civil actions and special proceedings falling within the
Court as defined in the Constitution had been revised and exclusive jurisdiction of a Juvenile and Domestic Relations
expanded a little bit more by law to include all cases Court and of the Court of Agrarian Relations as then
involving petitions for naturalization or denaturalization, all provided by law; and (8) all other cases in which the
decisions of the Auditor General, if the appellant is a demand, exclusive of interest, damages of whatever kind,
private person or entity, and final judgments or orders of attorney’s fees, litigation expenses, and costs or the value
the Commission on Elections. of the property in controversy exceeds Two hundred
thousand pesos (P200,000.00) or, in such other cases in
2.JURISDICTION OF THE COURT OF APPEALS Metro Manila, where the demand, exclusive of the above-
mentioned items exceeds For hundred thousand pesos
The Court of Appeals has both original and appellate (P400,000.00).
jurisdiction. Its original jurisdiction, which is exclusive, is
over actions for annulment of RTC judgments. Its original The appellate jurisdiction of the RTCs is over all cases
jurisdiction, which is concurrent with the Supreme Court decided by Metropolitan Trial Courts, Municipal Trial
and the RTCs, is to issue writs of mandamus, prohibition, Courts and Municipal Circuit Trial Courts in their respective
certiorari, habeas corpus and quo warranto, and auxiliary territorial jurisdiction.
writs or processes, whether or not in aid of its appellate
jurisdiction. The term “damages of whatever kind” has been specially
defined by the Supreme Court for purposes of determining
The appellate jurisdiction of the Court of Appeals, which the jurisdictional amount in respect to the jurisdiction of the
is exclusive, is over final judgments or resolutions of RTCs RTC. This term is understood to apply only to cases when
and quasi-judicial agencies, such as the Securities and the damages are merely incidental to or a consequence of
Exchange Commission, Sandiganbayan an National Labor the main cause of action, and that therefore where the
Relations Commission. claim for damages is the main cause of action or one of
the causes of action, the amount of the claim shall be
3.JURISDICTION OF REGIONAL TRIAL COURTS considered in determining the jurisdiction of the court.

The RTCs are our second-level trial courts. As the The Supreme Court has however designated certain
Supreme Court and the Court of Appeals, RTCs have both branches of the RTCs to handle exclusively certain cases
original and appellate jurisdiction in civil cases. as corporate and intellectual property cases.

Their original jurisdiction is concurrent with the Supreme 4.JURISDICTION OF METROPOLITAN TRIAL COURTS,
Court and the Court of Appeals in the issuance of writs of MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT
certiorari, prohibition, mandamus, quo warranto, habeas TRIAL COURTS
corpus and injunctions but, as issued by RTCs, these writs
may be enforced only within their respective regions, and The MTCs are the first-level trial courts in this country.
over actions affecting ambassadors and other public They have therefore no appellate jurisdiction and all their
ministers and consuls. The original jurisdiction of RTCs, jurisdiction is exclusive and encompasses the following
which is exclusive, is broad and covers the following cases: (1) all civil actions and probate proceedings, testate
cases: (1) all civil actions in which the subject of the and intestate, including the grant of provisional remedies
litigation is incapable of pecuniary estimation; (2) all civil in proper cases, where the value of the personal property,
actions which involve the title to, or possession of, real estate, or amount of the demand does not exceed Two
property, or any interest therein, where the assessed value hundred thousand pesos (P200,000.00) or, in Metro
of the property involved exceeds Two hundred thousand Manila where such personal property, estate, or amount of

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the demand does not exceed Four hundred thousand 1.1.d QUASI IN REM – names a person as a defendant
pesos (P400,000.00), exclusive of interest, damages of but its object is to subject the person’s interest in property
whatever kind, attorney’s fees, litigation expenses, and to a corresponding lien or obligation (Ramos vs. Ramos,
costs, the amount of which must be specifically alleged: 399 SCRA 43)
Provided, That where there are several claims or causes
of actions between the same or different parties, embodied 1.2 Distinguishing it from other kinds of actions:
in the same complaint, the amount of the demand shall be
the totality of the claims in all the causes of action 1.2.a CRIMINAL - one by which the state prosecutes a
irrespective of whether the causes of action arose out of person for an act or omission punishable by law.
the same or different transactions; (2) cases of forcible
entry and unlawful detainer: Provided, That when, in such 1.2.b SPECIAL PROCEEDING – remedy by which a
cases, the defendant raises the question of ownership in party seeks to establish a status, right or a particular fact.
his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the issue 1.3
of ownership shall be resolved only to determine the issue DISTINCTIONS BETWEEN A CIVIL ACTION AND
of possession; and (3) all civil actions which involve title to, SPECIAL PROCEEDINGS –
or possession of, real property or any interest therein
where the assessed value of the property or interest CIVIL ACTION
therein does not exceed Two hundred thousand pesos
(P200,000.00) or, in civil actions in Metro Manila, where Adversarial-between plaintiff and defendant
such assessed value does not exceed Four hundred formal demand of a right by one against the other
thousand pesos (P400,000.00) exclusive of interest,
damages of whatever kind, attorney’s fees, litigation SPECIAL PROCEEDINGS
expenses and costs.
not necessarily as it may involve only 1 party
The MTCs may however be assigned by the Supreme
Court to hear and determine certain cadastral cases and declaration of a status, right or a particular fact
petitions for habeas corpus.
WHEN AN ACTION IS COMMENCED
RULE I GENERAL PROVISIONS
An action is commenced upon the filing of the original
The Rules shall be known and cited as the Rules of complaint in court. If an additional defendant is impleaded
Court.1 They shall apply in all courts, except as otherwise in a later pleading – it is commenced on the date of the
provided by the Supreme Court2 in civil, criminal and filing of the later pleading IRRESPECTIVE OF WHETHER
special proceedings.3They do not apply to election cases, THE MOTION FOR ITS ADMISSION, IF NECESSARY, IS
land registration, cadastral, naturalization and insolvency, DENIED BY THE COURT.5
and other cases not herein provided, except by analogy or
in suppletory character and whenever practicable and 1.Note though that FILING IS DEEMED DONE ONLY
convenient.4 UPON PAYMENT OF THE DOCKET FEE REGARDLESS
OF ACTUAL DATE OF THE FILING OF THE
For purposes of the subject matter, only Rules 1 to 71 or COMPLAINT6 (MAGASPI V. RAMOLETE 115 S 193)
the 1997 Rules of Civil Procedure shall be discussed
herein. EXCEPT – if the plaintiff is authorized to litigate as a
pauper litigant – he is exempt from filing fees.
1.A Civil Action is one by which a party sues another for
the enforcement or protection of a right or the prevention 2.Note that the commencement of the action interrupts the
or redress of a wrong. Examples: To enforce payment of a period of prescription as to the parties to the action. 7
loan or to eject an intruder on one’s property.
HOW SHOULD THE RULES BE CONSTRUED
1.1 A Civil Actions may be:
The rules shall be construed liberally in order to promote
1.1.a ORDINARY or SPECIAL – both are governed by their objective of securing a just speedy and inexpensive
the rules for ordinary civil actions, subject to specific rules disposition of every action or proceeding.8
prescribed for a special civil action.
1.Liberal construction is the controlling principle to effect
1.1.b IN PERSONAM- brought against a person based substantial justice. Litigation should as much as possible,
on personal liability to the person bringing the action be decided on their merits, and not on technicalities. It
does not mean, however, that procedural rules are to be
1.1.c IN REM- it is directed against the thing itself rather ignored or disdained at will to suit the convenience of a
than the person party.9

5 Supra, Section 5, Rule 1


1 Section 1, Rule 1, 1997 Rules of Civil Procedure 6 Magaspi v Ramolete, 115 SCRA 193
2 Supra, Section 2, Rule 1 7 Cabrera v Tiano,8 SCRA 542
3 Supra, Section 3, Rule 1 8 Supra,Section 6, Rule 1
4 Supra,,Section 4, Rule 1 9 Vda De Toledo v Toleda, 417 SCRA 260

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2.Liberal construction of the rules should be made by the governed by procedural law. WHEN ALL ELEMENTS OF A
courts in cases: (1) a rigid application will result in manifest CAUSE OF ACTION ARE PRESENT, THERE WILL BE A
failure or miscarriage of justice, especially if a party RIGHT OF ACTION
successfully shows that the alleged defect in the
questioned final and executory judgment is not apparent The distinction is best used to explain the principle that the
on its face or from the recitals contained therein (2) where existence of a cause of action may only be ascertained
the interest of substantial justice will be served (3) where from the allegations of the complaint.18
the resolution of the motion is addressed solely to the
sound and judicious discretion of the court (4) where HOW MANY SUITS CAN BE FILED FOR A CAUSE OF
justice to the adverse party is not commensurate with the ACTION
degree of this thoughtlessness in not complying with the
procedure prescribed.10 A party may not institute more than one suit for a single
cause of action.19
3.Note that in doing so, substantial justice and equity
considerations must not be sacrificed. Periods for filing are 1. If a party institutes more than one suit, the filing of
as a matter of practice, strictly construed. Neither can one or a judgment upon the merits in anyone is available
liberality of the rules be invoked if it will result in the as a ground for the dismissal of the others. 20 This is also
wanton disregard of the rules or cause needless delay in known as SPLITTING A CAUSE OF ACTION.
the administration of justice.11 2.The SINGLENESS OF CAUSE OF ACTION of a cause
4.Concommitant to a liberal application of the rules of of action is determined as follows:
procedure should be an effort on the part of the party
invoking liberality to adequately explain his failure to abide 2.1 In an action EX DELICTO, the singleness of a
by the rules.12 cause of action lies in the singleness of the delict or wrong
violating the right of a person. If however, one injury
5.The rules and procedure laid down for the trial court and results from several wrongful acts, only one cause of
the adjudication of cases are matters of public policy. They action arises. Example: A party who is injured could not
are matters of public order or interest which can in no wise maintain an action for damages based on a breach of the
be changed or regulated by agreements between or contract of carriage against the owner of the vehicle in
stipulations by parties to an action for their singular which he was riding and another action for quasi-delict
convenience.13 (Republic vs. Hernandez, 253 SCRA 509) against the driver/owner of the offending vehicle. The
recovery under one remedy necessarily should bar
6.The Supreme Court has the power to suspend or set recovery under another. This, in essence, is the rationale
aside its rules in the higher interest of justice.14 for the proscription in our law againt double recovery for
the same act or omission which, obviously stems from the
RULE 2 CAUSE OF ACTION fundamental rule against unjust enrichment.21

The basis of an ordinary civil action is a cause of action. 15 2.2 In an action EX CONTRACTU, the rules are as
A cause of action is the act or omission by which a party follows:
violates a right of another.16
2.2.a In a single or indivisible contract, only one cause
WHAT ARE THE REQUISITES OF A CAUSE OF ACTION of action arises from a single or several breaches.
Example: In a contract of sale of personal property by
The requisites for a cause of action are: (1) a right in favor installments, the remedies of the unpaid seller is
of the plaintiff by whatever means and under whatever law alternative, they are: (1) elect fulfillment (2) cancel the
it arises or is created (2) an obligation on the part of the sale, should the vendee’s failure to pay cover two or more
defendant to respect and not to violate such right (3) an installments, and (3) foreclose the mortgage on the thing
act or omission on the part of the defendant constituting a sold if one has been constituted should the vendee fail to
violation of the plaintiff’s right.17 pay two or more installments. 22

DISTINGUISHING IT FROM RIGHT OF ACTION 2.2.b If the contract provides for several obligations,
each obligation not performed gives rise to a single cause
RIGHT OF ACTION is the right to commence and maintain of action. But if upon filing of the complaint several
an action, it is a remedial right that depends on obligations have already matured, all of them shall be
substantive law, while a CAUSE OF ACTION is a formal integrated into a single cause of action. Example: Contract
statement of the operative facts that give rise to such for delivery of goods in part or over a period.
remedial right which is a matter of statement and is
2.2.c If the contract is divisible in its performance, and
10 Seapower Shipping Enterprises, Inc. v CA, 360 SCRA 173, the future performance is not yet due, but the obligor has
Tan v CA, 295 SCRA 755 already manifested his refusal to comply, the contract is
11 El Reyno Homes v Ong, 397 SCRA 563
12 Sebastian v Hon. Morales, 397 SCRA 549, Duremdes v
Duremdes, 415 SCRA 684
13 Republic v Hernandez, 253 SCRA 509 18 Equitable Bank v CA, 425 SCRA 544
14 Fortica v Corona, GR No. 131457, April 24, 1998 19 Supra, Section 3, Rule 2
15 Supra, Section 1, Rule 2 20 Supra, Section 4, Rule 2
16 Supra, Section 2, Rule 2 21 Joseph v Bautista, 170 SCRA 540
17 Navao v CA, 251 SCRA 545 22 Articles 1484,1486, NCC

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entire and the breach is total. Thus, there can only be one the subject matter either of the original action or of a
action.23 counter-claim therein.29A THIRD PARTY CLAIM is a claim
that a defending party may, with leave of court, file against
IF A PARTY HAS SEVERAL CAUSES OF ACTION a person not party to an action for contribution, indemnity,
subrogation or any other relief, in respect to his opponent’s
He can join his causes of action 24 as he may in one claim.30
pleading assert, in the alternative or otherwise, as many
causes of action as he may have against the opposing 1.The state or any of its political subdivisions, while
party, subject to the following conditions: considered as juridical entities, they can sue but as a
general rule, they cannot be sued without its consent.
1.party joining the causes of action shall comply with the
rule on joinder of parties, which provides that : All persons 2. A foreign corporation cannot be a plaintiff in suit
in whom or against whom any right to relief is respect to or when it is transacting business in the Philippines without a
arising out of the same transaction is alleged to exist, license.
whether jointly, severally or in the alternative, may except
as otherwise provided in these rules, join as plaintiffs or be 3.Entities authorized by law are recognized labor
joined as defendants in one complaint, where any question organizations and entities without legal personality
of law or fact common to all such plaintiffs or to all such referring to 2 or more persons not organized as an entity
defendants may arise in the action.25 with juridical personality enter into a transaction, they may
be sued under the name by which they are generally or
2.joinder does not allow the inclusion of special civil commonly known but in their answer to the complaint, their
actions or actions governed by special rules . Example: An names and addresses must be revealed.31
action for a sum of money cannot be joined with an action
for iIlegal detainer 4.A sole proprietorship may not be a party as it is neither a
natural, juridical or entity allowed or authorized by law. If
3.where causes of action are between same parties but one sues as such, the action may be dismissed on the
pertain to different venues or jurisdictions, joinder may be ground of lack of capacity to sue. It does not possess a
allowed in the RTC provided one of the causes of action juridical personality separate and distinct from the
falls within its jurisdiction and venue lies therein. personality of the owner of the enterprise.32It cannot sue or
file or defend an action in court.33
4.when the claims in all causes of action are principally for
recovery of money, the aggregate amount shall be the test PARTIES IN INTEREST
of jurisdiction.
A real party in interest in the party who stands to be
EFFECT OF MISJOINDER benefited or injured by the judgment or party entitled to the
avails of the suit. UNLESS OTHERWISE AUTHORIZED
Upon motion of a party or on the initiative of the court, a BY LAW OR THE RULES – all actions must be prosecuted
misjoined cause of action may be severed and proceeded or defended in the name of the real party in interest. 34
with separately.26
1.A real party in interest-plaintiff is one who has a legal
RULE 3PARTIES TO CIVIL ACTIONS right, while a real party in interest-defendant is one who
has a correlative obligation, whose act or omission violates
WHO MAY BE PARTIES TO A CIVIL ACTION the legal rights of the former.35

Only natural or juridical persons or entitles authorized by 2.WHEN A SUIT IS NOT BROUGHT IN THE NAME OF
law may be parties in a civil action. 27 They are called: THE REAL PARTY IN INTEREST,it may be dismissed on
PLAINTIFF – he is one who has interest in the subject of the ground that the complaint states no cause of action. 36
the action and obtaining the relied demanded. He may be Note that the dismissal is not due to lack of or no legal
the claimant in the original complaint, the counter-claimant capacity to sue nor lack of legal personality, as the latter is
in the counter claim, or cross-claimant in a cross-claim or not ground for dismissal for dismissal under the 1997
the third party plaintiff and the DEFENDANT – he is one Rules of Civil Procedure.
who has an interest in the controversy adverse to the
plaintiff. He may be the original defending party, the 2.1 It states NO CAUSE OF ACTION BECAUSE IT IS
defendant in a counter-claim, or cross-defendant in a NOT BEING PROSECUTED IN THE NAME OF THE
cross-claim. REAL PARTY IN INTEREST.

For ready reference, a COUNTER-CLAIM is any claim


which a defending party may have against an opposing
party.28A CROSS-CLAIM is a claim by one party against a 29 Supra, Section 8, Rule 6
co-party arising out of the transaction or occurrence that is 30 Supra, Section 11, Rule 6
31 Supra, Section 15, Rule 3
23 Blossom & Co v Manila Gas Corporation, 55 Phil 226 32 Mangila v Court of Appeals, 387 SCRA 162, Yao Ka Sin
24 Supra, Section 5, Rule 2 Trading v Court of Appeals, 209 SCRA 763
25 Supra, Section 6, Rule 3 33 Juasing Hardware v Mendoza, 115 SCRA 783
26 Supra, Section 6, Rule 2 34 Supra, Section 2, Rule 3
27 Supra,,Section 1, Rule 3 35 Gan Hock v. Court of Appeals, 197 SCRA 223
28 Supra, Section 6, Rule 6 36 Tankiko v Cesar, 302 SCRA 559

6
2.2 LACK OF LEGAL CAPACITY TO SUE means that SHALL BE INCLUDED IN THE TITLE and shall be
the plaintiff is not in exercise of his civil rights, does not deemed to be the REAL PARTY IN INTEREST.41
have the necessary qualification to appear or does not
have the character or representation he claims. Example: 1.1 Examples of representatives are: (1) trustee of an
Trustee or Minor, AS DISTINGUISHED FROM LACK OF express trust (2) a guardian, executor or administrator, or
LEGAL PERSONALITY means that the plaintiff is not the (3) a party authorized by law or the Rules.
real party in interest. Dismissal is based on the fact that
the complaint states no cause of action 1.2 An agent acting in his own name and for the
benefit of an unknown principal may sue or be sued
3.Legal standing means a personal and substantial without joining the principal except when the contract
interest in the case such that the party has sustained or involves things belonging to the principal. This refers to an
will sustain direct injury as a result of the act being AGENCY WITH AN UNDISCLOSED PRINCIPAL.42
challenged. The term interest is material interest, an
interest in issue, and to be affected by the decree, as 2.HUSBAND AND WIFE- as a general rule shall sue or be
distinguished from mere interest in the question involved, sued jointly, except as provided by law. 43 Non joinder of
or a mere incidental interest. Moreover, the interest must party’s husband is not fatal. It is a mere formal defect. 44
be personal and not one based on a desire to vindicate the
constitutional right of some third or unrelated party. 2.1 They are required to sue and be sued jointly as
they are joint administrators of the Absolute Community or
CLASSIFICATION OF REAL PARTIES IN INTEREST the Conjugal Partnership.45

1.INDISPENSABLE PARTY is a party without whom no 2.2 The exceptions provided by law are when the
final determination can be had of an action. 37 They are property relations of husband and wife are governed by
those with such an interest in the controversy that a final the rules on separation of property 46 or one is disposing of
decree would necessarily affect their rights, so that the exclusive property.47
courts cannot proceed without their presence. Example:
owners of property over which reconveyance is asserted 2.3 NOTE that the legal provision against the
are indispensable parties without whom no relief is disposition of conjugal property by one spouse without the
available and without whom the court can render no valid consent of the other has been established for the benefit,
judgment.38 not of third persons, but only for the spouse for whom the
law desires to save the conjugal partnership from
1.1 Without the presence of indispensable parties to damages that might be caused. No other party can avail of
the suit, the judgment of the court cannot attain real the remedy other than the aggrieved spouse.48
finality.39
3.MINORS OR INCOMPETENTS- may sue or be sued
2. NECESSARY PARTY is a party who is not with the assistance of father, mother, guardian or, if he has
indispensable but who ought to be joined as a party if none, a guardian ad litem.49
complete relief is to be accorded as to those already
parties or for a complete determination or settlement of the 3.1 A guardian ad litem is a special guardian
claim subject of the action.40 A necessary party’s presence appointed by the court in which a particular litigation is
is necessary to adjudicate the whole controversy but pending to represent or assist a minor or an incompetent
whose interests are so far separable that a final decree person involved in or has interest in the property subject of
can be made in their absence without affecting them. litigation. His status as such exists only in that particular
Example: If the plaintiff only sues a one of his joint litigation in which the appointment occurs.
debtors, the joint debtor who is not sued is merely a 3.2 Note that the appointment of a guardian ad litem
necessary party. As a consequence, the plaintiff only may occur in the following: for minor heirs when
recovers the share of the debt due from the joint debtor substituting for a deceased party 50, incompetency or
defendant. incapacity of a party51, service of summons on a minor or
incompetent52, and when the best interest of the child
2.2 A necessary party is to be impleaded as a party require it.53
for complete determination of an action, while an
indispensable party is impleaded for a final determination JOINDER OF PARTIES
of an action.
PERSONS WHO CAN SUE IN BEHALF OF A REAL
PARTY IN INTEREST 41 Supra, Section 3, Rule 3
42 Article 1883, NCC
The following may sue in behalf of a real party in interest 43 Supra, Section 4, Rule 3
44 Miranda v Besa, 435 SCRA 532
1.REPRESENTATIVES- actions are allowed to be 45 Articles 96 and 124, Family Code
prosecuted / defended by a representative or by one 46 Article 145, Family Code
acting in a fiduciary capacity BUT the BENEFICIARY 47 Article 111, Family Code
48 Villaranda v Villaranda, 423 SCRA 571
49 Supra, Section 5, Rule 3
37 Supra, Section 7, Rule 3 50 Supra, Section 16, Rule 3
38 Valenzuela v Court of Appeals, 363 SCRA 779 51 Supra, Section 18, Rule 3
39 Domingo v Scheer, 421 SCRA 468 52 Supra, Section 10, Rule 14
40 Supra, Section 8, Rule 3 53 Article 222, Family Code

7
Joinder of Parties refers to the act of uniting several 4.2 It can be brought by the plaintiffs as a class or
parties in a single suit either as plaintiffs or defendants. may be filed against the defendants as a class

1.The rule on joinder of parties states that: All persons in 4.3 Any party in interest shall have the right to
whom or against whom any right to relief in respect to or intervene to protect his individual interest.
arising out of the same transaction is alleged to exist,
whether jointly, severally or in the alternative, may except 4.4 The general rule, is that the party bringing the suit
as otherwise provided in these rules, join as plaintiffs or be in his own name and that of others similarly situated has
joined as defendants in one complaint, where any question the right to control the suit, BUT, it shall not be dismissed
of law or fact common to all such plaintiffs or to all such or compromised without the approval of the court. 58
defendants may arise in the action.54
5.If there is a failure to join an indispensable party, the
2.Joinder of Parties, as a rule, is permissive when there is court must order the plaintiff to amend his complaint for
a question of law or fact common to all the plaintiffs or the purpose of impleading the indispensable party. If the
defendants. This means that the right to relief or to resist plaintiff fails, refuses or the party cannot be sued because
the action arises out of the same transaction or event or he is a non-resident defendant in a personal action, the
series of transactions or events. Example: action by complaint must be dismissed.59
passengers of a common carrier for injuries sustained in
an accident, there is no community of interest, the extent 6.If there is a failure to join a necessary party, the pleader
of the interest is limited to the extent of damages being in the pleading in which a claim is asserted without joining
claimed by each. a necessary party shall (1) set forth the name of the
necessary party, if known and (2) state the reason for
3.It becomes compulsory when the parties to be joined are omission. If the court finds the reason for the omission is
indispensable parties.55 not meritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person is obtained.
4.The exception to compulsory joinder of parties is when
the subject of the action is proper for a class suit. The If pleader fails to comply with order for inclusion without
subject matter of the controversy is proper for a class suit justifiable cause, it shall be deemed a waiver of the claim
when it is one of common or general interest to many against the party, BUT the non-inclusion does not prevent
persons so numerous that it is impractical to join all as the court from proceeding in the action, and the judgment
parties.56 All the parties who are interested in the action as therein shall be without prejudice to rights of such
plaintiffs or defendants are all indispensable parties but necessary party.60
not all need to be joined.
7.MISJOINDER OR NON JOINDER NOT A GROUND
4.1 The requisites of a class suit are: FOR DISMISSAL.Parties may be dropped or added by
order of the court on motion of any party or on its own
1.The subject matter of the controversy is one of common initiative at any stage of the action and on such terms that
or general interest to many persons. There must be an are just. Any claim against a misjoined party may be
INDIVISIBLE RIGHT AFFECTING MANY INDIVIDUALS severed and proceeded against separately.61
WHOSE PARTICULAR INTEREST IS OF
INDETERMINATE EXTENT AND IS INCAPABLE OF NOTE HOWEVER – that if the party to be joined is
SEPARATION. This requires that the benefit to one is a indispensable and the plaintiff fails or refuses or such party
benefit to all. Examples: stockholder derivative suits and cannot be sued – the complaint must be dismissed (NDC
taxpayer suits. v. CA 211 S 422)

1.1 Improper for a class suit is when a claimant is 8.IF A PARTY TO BE JOINED AS A PLAINTIFF DOES
interested only in collecting his claims and has no concern NOT CONSENT OR CANNOT BE OBTAINED he may be
in protecting the interests of the others.57 made a defendant and the reason therefor shall be stated
in the complaint.62
2.The parties affected are so numerous that it is
impracticable to join all as parties
DISTINCTIONS BETWEEN
3.The parties bringing or defending the class suit are
found by the court to be sufficiently numerous and Indispensable party
representative as to fully protect the interest of all.
if not joined – action cannot proceed judgment is not valid
To comply with the 2nd and 3rd requisite, the Complaint
most allege: (1) existence of a subject matter which is of -non joinder – dismissed claim
common or general interest to many persons, and (2)
existence of a class and the number of persons belonging Necessary party
to that class

58 Supra, Section 2, Rule 17


54 Supra, Section 6, Rule 3 59 NDC v Court of Appeals, 211 SCRA 422
55 Supra, Section 7, Rule 3 60 Supra, Section 9, Rule 3
56 Supra, Section 12, Rule 3 61 Supra, Section 11, Rule 3
57 Cadalin v POEA Administrator, 238 SCRA 721 62 Supra, Section 10, Rule 3

8
if not joined–action proceeds judgment is voted but does If sued in his public capacity – and he dies, resigns or
not resolve the controversy. otherwise ceases to hold office –

non joinder – waiver of The action may be MAINTAINED AND CONTINUED by or


against his successor, if within 30 days after successor
WHO WILL PLAINTIFF SUE IF HE IS UNCERTAIN assumes the office or such time as granted by the court –
it is SATISFECTORILY SHOWN by a party that there is a
If he (plaintiff) uncertain – against who of several persons substantial need for continuing and maintaining it and that
he is entitled to relief – HE MAY JOIN ANY OR ALL OF the successor ADOPTS or CONTINUES OR THREATENS
THEM AS DEFENDANTS – in the ALTERNATIVE – to adopt or continue the action of his predecessor.
although a right to relief against one may be inconsistent
with a right of relief against the other.63 BEFORE SUBSTITUTION – IF NO EXPRESS ASSENT,
the public officer shall be given reasonable notice of the
EXAMPLE: An action where the owner of goods is not application and be accorded an opportunity to be heard.
sure whether they were lost in transit or while it was on
deposit in the warehouse of the arrastre operator – He EFFECT OF DEATH OF DEFENDANT ON A
may sue the shipper or the operator of the warehouse in CONTRACTUAL MONEY CLAIM
the ALTERNATIVE – although the right against the
SHIPPER is based on ADMIRALITY, while that against the If the action is for the recovery of money that arises from a
OPERATOR is based on CONTRACT. Action for damages CONTRACT, express or implied, and the defendant dies
arising from loss of goods due to a collision. BEFORE ENTRY OF A FINAL JUDGMENT, the RULE is –
it will not be dismissed but shall be allowed to continue
IF THE IDENTITY/NAME OF THE DEFENDANT IS until entry of judgment, a favorable judgment obtained
UNKNOWN shall be enforced in the manner provided by the rules for
prosecuting claims against the ESTATE OF A DECEASED
He may be sued as the unknown owner, heir, devisee or PERSON.65
by such other designation as the case may require –
WHEN THE IDENTITY OR NAME IS DISCOVERED – the 1.RULES TO BE OBSERVED IN CASE OF DEATH OF
pleading must be amended accordingly.64 EXAMPLE: OBLIGOR are: (a) If he dies before the action is filed, a
Action to recover real property from several unknown heirs money claim must be filed in the testate or intestate
of a common ancestor. proceedings (b) if he dies during the pendency of an
action, the action continues until entry of judgment, and
EFFECT OF DEATH OF A PARTY (Sec 16) the judgment claim is then filed with the testate or intestate
proceedings. It must be noted that a money claim
When a party dies and his claim is not extinguished – it judgment need not be proven because it is conclusive.
shall be the duty of counsel – to inform the court within 30 NOTE FURTHER, that if property has been levied upon
days after such death of the : (1) FACT OF DEATH (2) before death. It can disposed of in the manner provided by
NAME AND ADDRESS OF LEGAL REP/REPS the rules on execution of judgments because it has
already been segregated from estate. If there is a
IF NOT, Counsel may be subject to disciplinary action. deficiency, a money claim can be filed subsequently.

ONCE NOTICE IS GIVEN – The COURT SHALL ORDER 2.IF IT DOES NOT ARISE FROM CONTRACT, RE:
THE LEGAL REP/S TO APPEAR AND BE SUBSTITUTED CLAIMS FOR RECOVERY, ENFORCEMENT OF A LIEN
WITHIN 30 DAYS FROM NOTICE. OR DAMAGES DUE TO TORT, the rules are: (a) if he dies
before the action is filed, it may be filed against the
Note: Heirs may be allowed to be substituted for the executor or administrator (b) if already filed , it continues to
deceased without requiring the appointment of an executor final judgment and may be executed on as against the
or administrator and the court can appoint a guardian ad executor or administrator.66
litem for minor heirs.
3.In a case for ejectment where the defendant died before
IF LEGAL REP/S DO NOT APPEAR OR NOTICE IS NOT the case could be decided and without being able to testify
GIVEN- on his counterclaim for damages. The trial court dismissed
the ejectment suit and ordered the plaintiff to pay the wife
The court can order the opposing party, within a specified of the defendant moral damages and attorney’s fees. The
time – to procure the appointment of an executor or plaintiff contends on appeal that the counterclaim should
administrator to appear for and in behalf of the deceased – have been dismissed pursuant to Rule 3, Section 21 (old
Expenses – if paid by opposing party can be recovered as rule). HELD: The argument is misplaced, defendant was
costs the plaintiff in his counterclaim, the rule is not applicable
as it pertains to a defendant who dies before final
IF DEATH/SEPARATION OF A PUBLIC OFFICER (Sec judgment. In this case, it is the plaintiff who died and all
17) that is required is a timely motion for substitution. No
recovery though can be allowed as no evidence was
adduced.67
65 Supra, Section 20, Rule 3
63 Supra, Section 13, Rule 3 66 Supra, Section 7, Rule 39
64 Supra, Section 14, Rule 3 67 UST v Court of Appeals, GR No. 124250, October 18, 2004

9
4.If a claim involves a conjugal debt that was not brought one (a) whose gross income and that of their immediate
and one of the spouses die before filing, the claim must be family does not exceed an amount double the monthly
brought in the testate or intestate proceedings of the minimum wage of an employee and (b) who does not own
deceased spouse.68 ( Alipio v. CA, GR. 134100, 9-29- real property with a fair market value as stated in the
2000) current tax declaration of more than PHP 300,000.00. If
there is any falsity in the affidavit or that of the
5.IF IT IS THE PLAINTIFF WHO DIES: (a) if action is disinterested person, it shall constitute sufficient ground to
purely personal to him, the action is abated (b) if action is dismiss the action or strike out the pleading, without
not purely personal, it continues but counsel must give prejudice to whatever criminal liability is incurred.74
notice of death.
3.The effect of being allowed to litigate as an indigent or
EFFECT ON INCOMPETENCY/INCAPACITY ON AN pauper litigant are: (1) exemption from the payment of
ACTION docket fees and other lawful fees (2) exemption from TSN
fees which the Court may order to be furnished BUT, the
1.The court, upon motion with notice, may allow the action amounts due shall be a LIEN on a favorable judgment
to be continued by or against the incompetent or unless the Court orders otherwise.
incapacitated person assisted by his guardian or guardian 4.The allowance to litigate as an indigent or pauper litigant
ad litem.69 can be contested at any time before judgment is rendered
by any adverse party. If found to be meritorious, the proper
EFFECT OF A TRANSFER OF INTEREST PENDING fees are assessed and are to be collected. IF NOT PAID,
LITIGATION execution shall issue on the payment thereof without
prejudice to other sanctions.
1.The action may be continued by or against the original
party, unless the court upon motion directs the person to 5.On appeal, a motion to litigate as an indigent or pauper
whom interest is transferred to be substituted in the action litigant is allowed.
or joined with the original party.70
WHEN SOLICITOR GENERAL IS REQUIRED TO
2.The rule refers to a transfer pendente lite. The APPEAR
transferee pendente lite shall stand exactly in the shoes of
the transferor. Consequently, any judgment will be binding In any action involving the validity of any treaty, law,
upon him. ordinance, executive order, presidential decree, rule or
regulation, the court, in its discretion, may require the
3.A transferee pendent elite does not have to be included appearance of the SOLGEN, who may be heard in person
or impleaded by name in order to be bound by the or through a representative duly designated by him.75
judgment because the action or suit may be continued for
or against the original party or the transferor and still RULE 4 – VENUE OF ACTIONS
binding on the transferee.71
1.Venue is the place where the action is to be commenced
4.In a case on appeal where the transferee pendente lite and tried. It has also been defined as the proper location
did not appeal, he nevertheless was benefited by the for the trial of a case.
appeal of the transferor pendent elite.72
2.Distinguishing it from jurisidiction: (a) venue is the
INDIGENT/PAUPER LITIGANT place where action is commenced and tried, jurisdiction is
the authority of a court to hear and decide the action (b)
1.An indigent or pauper litigant Is one who litigates on a venue may be waived, jurisdiction over the subject matter
claim that he has no money, or property sufficient and cannot be waived, but that over the person can be waived
available for food, shelter and basic necessities for himself (c) venue may be the subject of a written agreement,
and his family.73 jurisdiction cannot be subject of a written agreement (d) a
court cannot motu-propio dismiss on improper venue,
2.An indigent or pauper litigant must file an ex-parte while when there is no jurisdiction, a court can motu-propio
application for authority to litigate as an indigent that is too dismiss the action.
be resolved by the court after hearing. Attached to the
motion is an affidavit attesting to the fact that he does not 3.The following are the rules on venue:
earn a gross income of PHP 4000.00 in Metro-Manila, or
PHP 3,000.00 elesewhere and has no real property with a 3.1 IF IT IS A REAL ACTION or one that affects title
fair market value of PHP 50,000.00. Said affidavit must be to or possession of real property, or interest therein, it shall
supported by another affidavit of a disinterested person. be commenced and tried in the proper court which has
Note that recently, an indigent litigant has been defined as jurisdiction over the area wherein the real property
involved or a portion thereof is situated. Forcible Entry and
68 Alipio v Court of Appeals, GR No. 134100, September 29, Detainer actions are to be commenced and tried in the
2000 Municipal Trial Court which has jurisdiction over the area
69 Supra, Section 3 and 18, Rule 3 wherein the real property involved, or any portion thereof,
70 Supra, Section 19, Rule 3 is situated.76
71 State Invetsment House, Inc. v Court of Appeals, 318 SCRA
47 74 Section 19, Rule 141, Rules of Court
72 Jocson v Court of Appeals, GR 88297, March 22, 1990 75 Supra, Section 22, Rule 3
73 Supra, Section 21 76 Supra, Section 1, Rule 4

10
purpose of the action is to subject his interest therein to an
2.IF IT IS A PERSONAL ACTION or one that is brought for obligation or lien burdening the property.
the recovery of personal property, for the enforcement of a
contract or recovery of damages for its breach of for the 3.2 A non-resident alien who cannot be found can sue
recovery of damages due to injury to person or property or and be sued as by filing his complaint, he submits to the
such all other actions shall be commenced or tried where jurisdiction of the Court, even if he has never been able to
the plaintiff or ANY OF THE PRINCIPAL PLAINTIFFS enter the Philippines.82 (Dilweg vs. Philipps, 12 S 243)
reside or any of the defendants reside, or if a NON-
RESIDENT DEFENDANT, where he may be FOUND at THE RULES ON VENUE ARE NOT APPLICABLE
the election of the plaintiff77
The rules on venue will not apply if: (1) in cases where a
2.1 RESIDE – means the place of abode, whether specific rule or law provides otherwise (2) Where the
permanent or temporary – as distinguished from domicile parties have validly agreed in writing BEFORE FILING OF
– fixed permanent residence, where if one is absent he THE ACTION ON EXCLUSIVE VENUE83
intends to return.
1.EXAMPLES: (1) Quo Warranto proceedings may be
2.2 Is the complaint for cancellation of a real estate instituted in the Supreme Court, Court of Appeals or the
mortgage with damages, a real or personal action? It is a Regional Trial Court exercising territorial jurisdiction over
real action, the controlling factor in determining venue of the area where the respondent/s reside. If the Solicitor
such a case is the primary objective for which it is filed. An General commences the action, he may do so in the
action for cancellation of a real estate mortgage is Supreme Court, Court of Appeals or the Regional Trial
necessarily an action affecting title to real properties since Court of Manila.84 The criminal or civil action for damages
the primary objective is to recover the properties that the due to libel can only be instituted either in Regional Trial
bank had foreclosed on.78 Court of the place where he holds office or in the place
where the alleged libelous article was printed and first
2.3 In personal actions, it is the residence of the published; and if the offended parties are private
proprietor, not the business address of the sole individuals, the venue shall be in the Regional Trial Court
proprietorship that is considered to determine venue as a of the place where the libelous article was printed and first
sole proprietorship has no legal personality.79 published or where any of the offended parties actually
resides at the time of the commission of the offense 85 or
2.4 R engaged the services of L as geodetic surveyor 2.Art 360, RPC. Libel – Civil and Criminal action to be
to subdivide two parcels of land located in Batangas. As distributed in the RTC where public official holds office or
payment for L’s services, R agreed to given him one lot. where libelous article was first printed or published (3)
After the survey, R delivered to L possession of one lot as Intracorporate Controversies are to be filed in the Regional
payment for his services. However, R failed to deliver to L Trial Court where principal office corporation is located. 86
the tile of the lot. L, who resides in Quezon City, filed with
the RTC of Quezon City an action against R for specific 2.Any agreement as to venue must be in writing and for
performance to compel R to deliver to him the title to the exclusivity, the intent must be clear, otherwise, it will be
lot. R moved to dismiss on the ground of improper venue, interpreted to allow for an additional venue.
contending that since his is a real action, the complaint
must be filed in the RTC of Batangas where the lot is 2.1 The freedom of the parties to stipulate on the
situated. Is R correct? No, R is not correct. This action for venue is however subject to the usual rules on contract
specific performance is a personal action. The venue interpretation. Where the provision appears to be one-
therefore, was properly laid in Quezon City where the sided as to amount to a contract of adhesion, the consent
plaintiff resides. It is not a real action because plaintiff L is of the parties thereto may well be vitiated and the venue
not seeking the recovery of the lot as he is already in stipulation will not be given effect.87
possession thereof. He is merely asking the delivery of the
title to him, which is a personal action.80 2.2 Venue as stipulated in the promissory note shall
govern notwithstanding the absence of a stipulation as to
3.IF DEFENDANT IS A NON-RESIDENT or one who does venue in an accompanying surety agreement as the latter
not reside and is not found in the Philippines, and the can only be enforced in conjunction with the former. 88
action affects the personal status of the plaintiff , or any
property of said defendant located in the Philippines, the HOW VENUE IS QUESTIONED
action may be commenced and tried in the court of the
place where the plaintiff resides, or where the property or Venue may be questioned in (1) in a motion to dismiss 89,
any portion thereof is situated or found.81 or (2) in an answer by way of an affirmative defense 90. If
NOT SO MADE, it is deemed waived.
3.1 The provision refers to a Quasi in Rem action in
which an individual is named as a defendant, and the 82 Dilweg v Philipps, 12 SCRA 243
83 Supra, Section 4, Rule 4
77 Supra, Section 2, Rule 4 84 Supra, Section 7, Rule 66
78 Go v UCPB, GR No. 156187, November 11, 2004 85 Article 360, Revised Penal Code
79 Mangila v Court of Appeals, 387 SCRA 162 86 RA 8799, and A.M. 01-02-04-CS, March 13, 2001
80 Dimo Realty & Development, Inc. et al. v. 87 Sweet Lines v Teves, 83 SCRA 361
Dimaculangan, G.R. NO. 130991, March 11, 2004 88 Philippine Bank of Communications v Lim, 455 SCRA 714
89 Supra, Section 1 (c) ,Rule 16
81 Supra, Section 3, Rule 4 90 Supra, Section 6, Rule 16

11
limitations, release, payment, illegality, statute of frauds,
RULE 5-UNIFORM PROCEDURE IN TRIAL COURTS estoppel, former recovery, discharge in bankruptcy, or any
other matter by way of confession and avoidance.
The procedure in Municipal Trial Court shall be the same
as in the Regional Trial Court, except when (1) a provision Any of the grounds for a motion to dismiss may be
applies only, expressly or impliedly, to a particular court, or pleaded as an affirmative defense. He may then move for
(2) In civil cases covered by the Rules on Summary a preliminary hearing as if a timely motion to dismiss has
Procedure been filed.99

1. An example of a provision that applies only to a NOTE that the rule that a defending party who sets up an
Municipal Trial Court is that which refers to an affirmative defense HYPHOTHETICALLY ADMITS the
appeal taken from an order of the lower court allegations does not apply if the defense set up is any of
dismissing the case without trial on the merits.91 the grounds for extinguishment of the obligation. The
EFFECT is that the defending party is deemed to have
PROCEDURE IN REGIONAL TRIAL COURTS admitted the validity of the obligation, and if the motion to
dismiss is denied, what is left to be proven is the fact of
RULE 6- KINDS OF PLEADINGS payment or non-payment.
3. COUNTERCLAIM, which is any claim which a
PLEADING DEFINED is a written statement of the defending party may have against an opposing party. 100
respective claims and defenses of the parties submitted to
the court for appropriate judgment.92 3.1 KINDS OF COUNTERCLAIMS

1.The pleadings that are allowed are: (a) Claims of a party COMPULSORY
are asserted in the complaint, counterclaim, cross-claim,
3rd party complaint (4th…..), or complaint in intervention (2) (1) Arises out of or is connected w/ the transaction or
Defenses of a party are alleged in the answer to the occurrence constituting the subject matter of the opposing
pleading asserting a claim against him (3) Reply to the party’s claim
answer93
(2) barred if not set up in the answer
2.The specific KINDS OF PLEADINGS are: (a)
COMPLAINT, which is the pleading alleging the plaintiff’s (3) plaintiff need not answer
cause of action or causes of action. The
names/residences of the plaintiffs and defendants must be (4) if not answered – no default
stated in the complaint94 (b) ANSWER, which is a pleading
in which a defending party sets forth his defenses 95. Its (5) does not require a certification as to non-forum
essential purpose is to secure joinder of the issues and not shopping
to lay down evidentiary matter.96
PERMISSIVE
2.1 The following are the kinds of defenses 97 that may 1. does not arise out of or is not connected
be interposed in an answer: with the transaction or occurrence constitu-
ting the subject matter of the opposing
2.1.1 NEGATIVE DEFENSE which is a specific denial of party’s claim
a material fact or facts alleged in the pleading of a 2. not barred even if not set up in the
claimant essential to his cause/s of action. A specific answer
denial is made98 by: (a) Specifically denying the material 3. plaintiff must answer once docket fees are
averment in the pleading of the adverse party and setting paid
forth the substance of the matter upon which he relies for 4. if not answered – default lies
such denial (b) Deny only a part of the averment by 5. being an initiatory pleading – it requires a
specifying that so much of it is true and deny the certification as to non-forum shopping
remainder (c) Allegation of lack of knowledge or
information sufficient to form a belief as to the truth of the 3.2 The REQUISITES OF A COMPULSORY
material averment in the pleading of the adverse party. COUNTER-CLAIM are:(a) It arises out of or is necessarily
connected w/the transaction or occurrence that in the
2.1.2 AFFIRMATIVE DEFENSE which is an allegation subject matter of the party’s claim (b)It does not require for
of new matter, which although hypothetically admitting the adjudication the presence of 3rd parties over whom the
material allegations in the pleading would nevertheless bar court cannot acquire transaction (c) It must be cognizable
or prevent recovery. They include fraud, statute of by the regular courts of justice (d) It must be within the
jurisdiction of the court both as to amount and the nature
91 Supra, Section 8, Rule 40 thereof, except that in an original action before the RTC,
92 Supra, Section 1, Rule 6 counterclaim is considered compulsory regardless of
93 Supra, Section 2, Rule 6 amount (e) It must already be existing at the time
94 Supra, Section 3, Rule 6 defending party files his answer (Rule 6, Sec. 7, Rule 11,
95 Supra, Section 4, Rule 6 Sec. 8)
96 Naga Development Corporation v Court of Appeals, 41 SCRA
105
97 Supra, Section 5, Rule 6 99 Supra, Section 6, Rule 16
98 Supra, Section 10, Rule 8 100 Supra, Section 6, Rule 6

12
See Reyes De leon v Del Rosario, 435 SCRA 232, test to CONTRIBUTION INDEMNITY, SUBROGATION, OR ANY
determine whether counterclaim is compulsory or not. OTHER RELIEF in respect of his opponent’s claim.106

3.2.1 A compulsory counterclaim that is not yet in 6.1 EXAMPLES:


existence at the time of the filing of an answer may be
presented or set-up by a supplemental pleading before CONTRIBUTION- A sues X for collection of money based
judgment.101 on a promissory note signed jointly and severally with Y. X
may file a complaint against Y for contribution
3.2.2 A compulsory counterclaim may implead persons
not parties to the original complaint as their presence is INDEMNITY – S, as surety, is sued for recovery of the
required for granting complete relief in the determination of obligation of M. S may file a complaint against M for
a counter-claim or cross claim, the court shall order them whatever amount he may be adjudged to pay as surety
brought in as defendants, if jurisdiction over them can be
obtained.102 Summons must thus be served upon them as SUBROGATION – X, as lessor, sues Y, as lessee for
they must answer the counterclaim as they cannot rely on repairs. Y may file a complaint against his sub-lessee who
the rule that the defendant in the counterclaim is deemed filed to comply with the obligation to repair
to have adopted the allegations of the complaint in his
answer.103 OTHER RELIEF – X bought land from Y. Later X is sued
by A for recovery of the land. X may file a complaint
3.3 The REQUISITES OF A PERMISSIVE against Y for his warranty against eviction.
COUNTERCLAIM are: (a) It does not require for
adjudication the presence of 3rd parties over whom the 6.2 An ANSWER TO 3RD PARTY COMPLAINT may
court cannot acquire jurisdiction (b) It must be cognizable include (a)DEFENSES COUNTERCLAIMS OR CROSS-
by the regular courts of justice (c) It must be within the CLAIMS – including such defenses that the 3 RD PARTY
jurisdiction of the court both as to amount and the nature PLAINTIFF may have against the original plaintiff’s claim,
thereof, except that in an original action before the RTC, and (b) IN PR0PER CASES, he may assert a counter-
counterclaim is considered compulsory regardless of claim against the ORIGINAL PLAINTIFF in respect to his
amount claim against the 3rd party plaintiff.107

4.A CROSS-CLAIM is a claim by one party against a co- EXAMPLE: – a REINSURER (3 rd party defendant) may
party arising out of a transaction/occurrence that is the set up in his answer the defense alleged by defendant
subject matter either of the original action or the counter- insurer that loss is caused by plaintiff insured. However 3 rd
claim. party defendant cannot file a counterclaim against the
original plaintiff as there is no privity of contract.
It may include a claim that a party against whom it is
asserted is or may be liable to the cross claimant for all or WHEN NEW PARTIES CAN BE BROUGHT
part of a claim asserted in the action against the cross-
claimant. 104 If the presence of others besides the parties is required for
the granting of full relief in the determination of a counter-
NOTE that counterclaims may be asserted against an claim or cross- claim the court shall order them to be
original counter-claimant and that cross-claims may also brought in as defendants, if jurisdiction over them can be
be filed against an original cross-claimant.105 obtained108.

5.A REPLY is a pleading, the office or function of which is RULE 7 – PARTS OF A PLEADING
to deny or allege facts in denial or avoidance of new
matters alleged by way of defense in the answer and The PARTS OF A PLEADING of a pleading are CAPTION,
thereby join or make an issue as to such matters. BODY, SIGNATURE, ADDRESS, VERIFICATION, AND
CERTIFICATION AGAINST FORUM SHOPPING.
5.1 If a reply is not filed, all new matters are deemed
controverted. If plaintiff wishes to interpose any claims 1. CAPTION – it sets forth the (a) NAME OF THE
arising out of the new matters so alleged, such claims COURT (b) THE TITLE OF THE ACTION- this includes an
shall be set forth in an amended/supplemental complaint. indication of the NAME of the PARTIES, who are
REQUIRED to be NAMED in the ORIGINAL COMPLAINT
5.2 If the defense is based on an actionable OR PETITION. In subsequent pleadings, the name of the
document, it must be replied to, otherwise it is admitted. first party on each side is sufficient with an appropriate
indication when there are other parties. NOTE: In an
6.A 3RD PARTY COMPLAINT is a claim that a defending appeal, Sections 5 and 6, Rule 41 requires all names to be
party may, WITH LEAVE OF COURT, file against a person, indicated in the NOTICE OF APPEAL and RECORD ON
NOT A PARTY, called 3RD party defendant. FOR APPEAL (c) DOCKET NUMBER , if one has already been
assigned.109
101 Supra, Section 9, Rule 11, Intramuros Administration v
Contacto, 402 SCRA 581
102 Supra, Section 12, Rule 6
103 Lafarge Cement Philippines, Inc. v Luzon Continental Land 106 Supra, Section 11, Rule 6
Corporation, 443 SCRA 522 107 Supra, Section 13, Rule 6
104 Supra, Section 8, Rule 6 108 Supra, Section 12, Rule 6
105 Supra, Section 9, Rule 6 109 Supra, Section 1, Rule 7

13
2.BODY - sets forth its designation, the allegations or a VERIFICATION, it shall be treated as an UNSIGNED
party’s claims / defenses, the relief prayed for, and the PLEADING.
date of the pleading –
4.2 A pleading need not be verified, except when
2.1 The allegations in the body shall be divided unto otherwise specifically required by LAW OR RULES110.
paragraphs so NUMBERED to be readily IDENTIFIED.
Each shall contain STATEMENT OF A SINGLE SET OF 4.3 A VERIFICATION IS REQUIRED under rules
CIRCUMSTANCES so far as it can be done with governing (a) cases covered by the Rules on Summary
convenience. A paragraph may be referred to by its Procedure (b) Petition for relief from judgment / order 111
number in all succeeding pleadings. (c) Petition for review112 (d) Appeal by certiorari113
(e)Petition for annulment of judgment 114 (f) Injunction115 (g)
2.2 Headings must be used when 2 or more causes of Receivership116 (h) Support117 (i) 69) Certiorari, Prohibition
action are joined, the statement of the first shall be or Mandamus118 (j) Quo Warranto119 (k) Expropriation120 (l)
prefaced by : FIRST CAUSE OF ACTION etc. WHEN: 2 or Forcible Entry / Detainer121 (m) Indirect Contempt 122
more paragraphs are addressed to one or several causes
of action in the complaint, they shall be prefaced by: 4.4 An improper verification is cured by amending the
ANSWER TO THE FIRST CAUSE OF ACTION – and so pleading with the CORRECT VERIFICATION
on. If it addresses several causes of action, the
paragraphs shall be prefaced accordingly. 5.CERTIFICATION AGAINST FORUM SHOPPING is
executed by the plaintiff or principal party who shall certify
2.3 Relief should be specified but it may add a general under OATH in the COMPLAINT or INITIATORY
prayer for such further or other relief as may be deemed PLEADING ASSERTING A CLAIM OR RELIEF – OR IN A
just and equitable. SWORN CERTIFICATION ANNEXED THERETO AND
SIMULTANEOUSLY FILE THEREWITH: (1) That he
2.4 Date – every pleading is required to be dated. has not therefore commenced any action or filed any claim
involving the same issues in any COURT, TRIBUNAL OR
3.SIGNATURE AND ADDRESS- every pleading must be QUASI-JUDICIAL AGENCY, AND to the best of his
signed by the party OR counsel representing him, stating knowledge, no such other claim or action is pending
in either case his ADDRESS which should not be a post therein (2) If there is such other pending action or claim, a
office box. complete statement of the present status thereof (3)
That if he should thereafter learn that the same or similar
3.1 NOTE the word OR because a party may litigate / action has been filed or is pending, he shall report that fact
defend PRO SE or for himself without aid or counsel. This within 5 days therefrom to the court wherein his
applies even if a party is already represented by counsel. complaint / initiatory pleading has been filed.123

3.2 AN ADDRESS IS REQUIRED for service of 5.1 The lack of a certification is not curable by
pleadings or judgments amendment, but such shall be cause for dismissal of the
complaint. The dismissal shall be without PREJUDICE
3.3 SIGNIFICANCE OF COUNSEL’S SIGNATURE – it unless otherwise provided, upon motion and after
is a CERTIFICATE BY HIM THAT: (a) He has read the hearing.124
pleading (b)To the best of his information, knowledge and
belief there is good ground to support it (c) It is not 5.2 The NON-COMPLIANCE WITH ANY OF THE
interposed for delay UNDERTAKINGS OR SUBMISSION OF A FALSE
CERTIFICATE shall constitute indirect contempt without
3.4 IF PLEADING IS UNSIGNED It produces NO prejudice to corresponding administrative and criminal
LEGAL EFFECT. However, the court in its discretion can actions. PROVIDED, that if the acts of the party or counsel
allow the deficiency to be remedied if: it SHALL APPEAR clearly constitute WILLFUL and DELIBERATE forum
THAT THE SAME IS DUE TO INADVERTENCE AND NOT shopping, it shall then be ground for SUMMARY
INTENDED FOR DELAY DISMISSAL WITH PREJUDICE, and shall constitute

3.5 COUNSEL SUBJECT TO DISCIPLINARY


ACTION IN RELATION TO the Rule when (a) He 110 Supra, Section 4, Rule 7
deliberately files an unsigned pleading (b) Signs a 111 Supra, Section 3, Rule 38
pleading in violation of the Rule (c) Alleges 112 Supra, Section 1, Rule 42
scandalous or indecent matter (d) Fails to promptly report 113 Supra, Section 1, Rule 45
to the court a change in his address 114 Supra, Section 4, Rule 47
115 Supra, Section 1, Rule 58
4.VERIFICATION is an affidavit that the affiant has read 116 Supra, Section 1, Rule 59
the pleading and that the allegations therein are TRUE 117 Supra, Section 1, Rule 61
and CORRECT of his PERSONAL KNOWLEDGE
AND/OR IS BASED ON AUTHENTIC RECORDS. 118 Supra, Sections 1,2,3, Rule 65
119 Supra, Section 1, Rule 66
4.1 IF A PLEADING REQUIRED TO BE VERIFIED 120 Supra, Section 1, Rule 67
CONTAINS A VERIFICATION BASED ON – 121 Supra, Section 3, Rule 70
INFORMATION AND BELIEF, OR – UPON KNOWLEDGE 122 Supra, Section 3, Rule 71
INFORMATION AND BELIEF, OR LACKS A PROPER 123 Supra, Section 5, Rule 7
124 Castillo v Court of Appeals, 426 SCRA 369

14
DIRECT CONTEMPT as well as cause for administrative exempt them from compliance with the requirement that
sanctions. they personally execute the certificate133

5.3 Forum Shopping exists when as a result of an 5.5.2 If the plaintiff or petitioner is a juridical person, the
adverse opinion in one forum, a party seeks a favorable Board may pass a specific resolution allowing a
opinion, other than by appeal or certiorari, in another, or representative to sign.
when he institutes two or more actions or proceedings
grounded on the same cause, on the gamble that one or 5.5.3 Counsel has been allowed to sign the certification
the other court would make a favorable disposition. The in the following instances: (a) Where the counsel is the
most important factor in determining the existence of Solicitor General has been deemed to be substantial
forum shopping is the vaxation caused the courts and compliance134 (b)Certification by acting regional counsel of
parties-litigants by a party who asks different courts to rule NPC was accepted because it was his basic function to
on the same or substantially the same reliefs.125 prepare pleadings and to represent NPC – Mindanao – as
such he was in the best position to know and certify if a
5.3.1 It also occurs when a party attempts to have his similar action was pleading or had been filed 135 (c)
action tried in a particular court or jurisdiction where he Certification was signed by counsel. The procedural lapse
feels he will receive the most favorable judgment. may be overlooked in the interest of substantial justice. 136
(d) Certification was executed by an in house counsel is
5.3.2 It has been said to exist also where the elements sufficient compliance with the Rules137
of litis pendentia are present or where a final judgment in
one case will amount to res judicata in another. Hence, the SEE: Ateneo de Naga vs. Bernal, GR 160455, May 9,
following requisites concur: (a) identity of parties, or at 2005
least such parties represent the same interests in both
actions (b) identity of rights asserted and relief The rule in Section 1, Rule 17 is that the plaintiff may
prayed for, the relief being founded on the same facts, and dismiss his complaint by filing a notice of dismissal at any
(c) identity of the two preceding particulars is such that any time before service of the answer or of a motion for
judgment rendered in the other action will, regardless, of summary judgment. As a general rule, such dismissal is
which party is successful, amount to res judicata in the without prejudice. Suppose P filed a complaint against D,
action under consideration. 126 and before service of the answer or of motion for summary
judgment, P caused the dismissal of his complaint by filing
5.4 The purpose of the certification against forum a notice of dismissal. Months later, P filed the same
shopping is to prohibit and penalize the evils of forum complaint against D. In the certification on non-forum
shopping.127 Forum Shopping is a deplorable practice shopping appended to the second complaint, P failed to
because it results in unnecessarily clogging of the already mention about the prior filing and dismissal of the first
heavily burdened docket of the courts.128 case. Is P’s failure to mention about the prior filing and
dismissal of the first case fatal?
5.5 The execution of the certification is required to be
accomplished by the petitioner himself as it is the No. An omission in the certification on non-forum shopping
petitioner himself who has actual knowledge of whether or about any event or case which would not constitute res
not he has initiated similar actions or proceedings in judicata or litis pendentia is not fatal. In the problem
different courts or agencies. presented, the dismissal of the first case would not
constitute res judicata precisely because such dismissal is
5.5.1 If there are several plaintiffs, the general rule is without prejudice to the refilling of the case. (Roxas v. CA,
that all of them must sign BUT IT MUST BE NOTED that G.R. No. 139337, Aug. 15, 2001.)
there is jurisprudence to the effect that: (1) the execution
by one of the petitioners or plaintiffs in a case constitutes To be included as 4th paragraph of the answer in Q&A No.
substantial compliance where all the petitioners, being 13; p. 62:
relatives and co-owners of the properties in dispute, share
a common interest in the subject matter of the case. 129 (2) Also, a case pending before the Ombudsman cannot be
the case is filed as a collective raising only one cause of considered for purposes of determining forum shopping as
action or defense130 (3) the signing by 1 spouse the power of the Ombudsman is only investigative in
substantially complies as they have a common interest in character and its resolution cannot constitute a valid and
the property131 or is signed by husband alone is final judgment because its duty is to file the appropriate
substantial compliance as subject of case is recovery of case before the Sandiganbayan. (Sevilla v. Laggui, A.M.
conjugal property132 (4) 2 of the parties did not sign as they No. RTJ-01-1612, Aug. 14, 2001.)
were abroad. It was considered reasonable cause to
CAN THE CERTIFICATION BE FILED LATER-
125 Benguet Electric Cooperative, Inc. v Flores, 287 SCRA 449
126 TADI v Solilapsi, 394 SCRA 269
127 BA Savings Bank v Sia, 336 SCRA 484
128 Ruiz v Drilon, 209 SCRA 695
129 Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy v 133 Hamilton v Levy, 344 SCRA 821
Guadalquiver, 429 SCRA 722 134 Commissioner of Internal Revenue v SC Johnson, 309 SCRA
130 HCC Construction and Development Corporation v Emily 87
Homes Subdivision Homeowners Association, 411 SCRA 504 135 Robern Development Corporation v Quitain, 315 SCRA 150
131 Dar v Alonso Legasto, 339 SCRA 306 136 Sy Chin v Court of Appeals, 345 SCRA 673
132 Docena v Lapesura, 355 SCRA 658 137 Mercury Drug Corporation v Libunao, 434 SCRA 404

15
General Rule – NO – Note Uy v. Land Bank GR 136100 has a right to its use/possession, that he has been
July 24, 2000-REINSTATEMENT OF THE CASE AFTER dispossessed
MOTION TO ADMIT CERTIFICATION
2.Mere EVIDENTIARY FACTS or those that are necessary
BUT: Loyola v. CA 245 S 477 – one day after, Roadway for the determination of the ultimate facts are to be
Express v. CA 264 S 696 – 14 days before the CA omitted. Evidentiary facts are the premises upon which
dismissed Petition for Review. conclusions of ultimate facts are based. Examples: (a)That
obligation as covered by promissory note was executed
Shipside v. Ca – GR 143377, Feb 20, 2001 – motion for before specified persons, that defendant has several
reconsideration – showing authority of petitioner to letters indicating intention to/or not to pay (b) How property
execute certification prior to filing. was acquired

REASON – special or compelling reasons justified 3.LAWS may be pleaded only if the pleading is an Answer.
relaxation of the Rule – IN Shipside – merits of case
justified deviation. PLEADING ALTERNATIVE CAUSES OF ACTION OR
DEFENSES
DISTINGUISH BETWEEN VERIFICATION /
CERTIFICATION 1.A party may set forth two or more statements of a claim
or a defense alternatively or hypothetically, either in one
Verification cause of action or defense or in separate causes of
actions or defenses. If two or more statements are made
-allegations are true and correct in the alternative and if one of them if made independently
based on personal knowledge / would be sufficient, the pleading is not made insufficient by
authentic records the insufficiency of one or more of the alternative
statements.139Example: (a) allegations for breach of
-required in complaints, initiatory contract of carriage and tort (b) allegations for breach of
pleadings and in some responsive contract and fraud (c) defense of failure to repurchase by
pleadings. plaintiff and that property was inherited are inconsistent
defenses.
-may be cured by amendment or
order to verify 2.Overruling of one does not bar other defense. However,
if not set up, determination of one shall bar the
-may not result in dismissal determination of the other.

-may be signed by counsel 3.The OBJECT OF PROVISION is to relieve a party from


making a definite election in cases where his claim or
Certification defense might fall within two different substantive classes.
SO, a party may state as many claims/defenses as he has
-no action/claim involving the same regardless of inconsistency.
no action/claim involving the same
HOW TO PLEAD CONDITIONS PRECEDENT
- required only in complaints/initiatory
pleadings. A general averment of the performance or occurrence of
all conditions precedent is sufficient. 140 (a) that earnest
- cannot be cured by amendment efforts at a compromise have been exerted, the suit being
- results in dismissal one between members of the same family (b) that prior
- by the party himself resort to conciliation has been undertaken to no avail

RULE 8 – MANNER OF MAKING ALLEGATIONS IN PLEADING CAPACITY TO SUE AND TO BE SUED


PLEADINGS
The following must be averred: (1) capacity to sue or be
HOW ALLEGATIONS ARE MADE IN A PLEADING sued (2) authority of a party to sue or be sued in a
representative capacity (3) legal existence of an organized
In general, a pleading must contain in a METHODICAL association of persons that is made a party.141
and LOGICAL form a PLAIN, CONCISE, and DIRECT
statement of the ULTIMATE FACTS on which the party 1.Note the cross reference to Sections 1 and 3, Rule 3
pleading relies for his claim or defense138 referring to who may be parties and representative parties,
and to Section 1(d), Rule 16 referring to a motion to
1.ULTIMATE FACTS are the essential facts constituting dismiss on the ground of lack of legal capacity to sue,
the plaintiff’s cause of action. A fact is essential if it cannot meaning that a party is not in possession of his civil rights,
be stricken out without leaving the statement of the cause does not have the qualification to appear, or does not have
of action insufficient. Examples: (a) That an obligation has the character or representation claimed.
been constituted, that party must comply, that there is no
compliance (b)That party is the owner of property, that he
139 Supra, Section 2, Rule 8
140 Supra, Section 3, Rule 8
138 Supra, Section 1, Rule 8 141 Supra, Section 4, Rule 8

16
2.A party desiring to raise the issue of lack of legal
capacity shall do so by specific denial, which shall include It is sufficient to aver that document was issued or act
such supporting particulars as peculiarly within the done in compliance with law.146 Example: issuance of
pleader’s knowledge. certification to file action by Lupon Tagapayapa chair.

HOW TO AVER FRAUD, MISTAKE, CONDITION OF HOW ARE SPECIFIC DENIALS MADE
MIND
A specific denial is made147 by: (a) Specifically denying the
Fraud and mistake must be stated with particularity. material averment in the pleading of the adverse party and
Condition of mind, such as malice, intent, knowledge may setting forth the substance of the matter upon which he
be averred generally.142 relies for such denial (b) Deny only a part of the averment
by specifying that so much of it is true and deny the
HOW TO AVER/ PLEAD A JUDGMENT/DECISION OF A remainder (c) Allegation of lack of knowledge or
DOMESTIC/FOREIGN COURT, JUDICIAL/QUASI- information sufficient to form a belief as to the truth of the
JUDICIAL OFFICER TRIBUNAL BOARD material averment in the pleading of the adverse party.

It is sufficient that a general allegation of the existence of 1.If allegations are not denied in the prescribed manner, a
the judgment is made, without setting forth matter showing party is deemed to have made a GENERAL DENIAL which
jurisdiction to render it.143 Jurisdiction in this case is is TANTAMOUNT TO AN ADMISSION.148(Section 11)
presumed.
1.1 An exception to the rule are allegations that
IF ACTION/DEFENSE IS BASED ON AN ACTIONABLE pertain to UNLIQUIDATED DAMAGES
DOCUMENT
1.2 Note that when the allegations pertain to (a)
1.Where the action or defense is based on a written allegations of usury in a complaint to recover usurious
document ( an actionable document) it is pleaded by (a) interest,OR (b) genuineness and due execution of an
setting forth the substance of such document in the actionable document are required to be made UNDER
pleading and attaching the original/copy as an annex OR OATH OTHERWISE THEY ARE ADMITTED.
(b) setting it forth verbatim in the pleading.144
STRIKING OUT OF A PLEADING OR MATTER
2.AN ACTIONABLE DOCUMENT IS CONTESTED by CONTAINED THEREIN
specifically denying it under oath and setting forth what he
claims to be the fact. If the pleading or any matter therein is SHAM, FALSE,
REDUNDANT, IMMATERIAL, IMPERTINENT OR
2.1 The requirement DOES NOT APPLY IF: (a) SCANDALOUS, the court can order the pleading or matter
adverse party is not/does not appear to be a party to the contained therein to be stricken therefrom (a) upon motion
actionable document. Example: Heirs are sued on a made by a party before responding to a pleading (b) if no
document executed by a person they will inherit from (b) responsive pleading is allowed / permitted by the Rules,
when compliance with an order for an inspection of the upon motion by a party within 20 days after service of the
original document is refused.145 (c) when the document is pleading, OR (c) upon the Court’s own initiative149
not an actionable document but is merely evidence of the
claim or existence of the actionable document . Example: RULE 9 – EFFECTS OF FAILURE TO PLEAD
demand letters (d) when the party who has the benefit of
an implied admission waives the benefit Example: he The general effect of the failure to plead is that the
presents evidence as to genuineness and due execution defenses / objections not so pleaded in an Answer or a
Motion to Dismiss are deemed waived. HOWEVER, if it
3.The EFFECT of not SPECIFICALLY DENYING AN appears from the pleadings or evidence on record that (a)
ACTIONABLE DOCUMENT UNDER OATH is that the the Court has no jurisdiction over the subject matter (b)
genuineness and due execution is admitted. MEANING, there is another action pending between the same parties
that it was executed by him/by someone authorized by for the same cause, or (c) the action is barred by prior
him, it was in the words/figures set forth in the pleading, judgment or statute of limitations, the court shall DISMISS
and that the formal requirements of law have been the claim.150 These defenses are not barred if not set up
observed. THUS, there is no need to present it formally in (Section 1)
evidence because it is an admitted fact.
3.1 A PARTY THOUGH IS NOT BARRED FROM 1.A compulsory counterclaim or a cross-claim not set up
INTERPOSING OTHER DEFENSES as long as it is not shall also be barred.151 Note that this is in consonance with
inconsistent with the implied admission. Example: (a) the the requirement of the Rules that a a compulsory
defense of forgery would be inconsistent, ON THE OTHER counterclaim or cross claim existing at the time of the filing
HAND (b) Fraud/Payment are not inconsistent and may be of the answer must be contained therein152 BUT if it arises
allowed.
146 Supra, Section 9, Rule 8
HOW ARE OFFICIAL ACT/DOCUMENTS AVERRED 147 Supra, Section 10, Rule 8
148 Supra, Section 11, Rule 8
142 Supra, Section 5, Rule 8 149 Supra, Section 12, Rule 8
143 Supra, Section 6, Rule 8 150 Supra, Section 1, Rule 9
144 Supra, Section 7, Rule 8 151 Supra, Section 2, Rule 9
145 Supra, Section 8, Rule 8 152 Supra, Section 8, Rule 11

17
after the filing of an answer, it may be set up in a 3. APPEAL the judgment by default (not the order as
supplemental pleading before judgment153 OR if failure is it is interlocutory, and cannot be appealed) within 15 days
due to oversight, inadvertence, excusable neglect or when from notice of judgment. Note: that if in the meantime, a
justice requires, it may be set up by amendment with leave motion to set aside order of defendant has been denied, it
of court before judgment.154 can be assigned as an error in the appeal. THE NON
FILING THOUGH DOES NOT BAR APPEAL
WHAT RESULTS IF DEFENDANT / DEFENDING PARTY
FAILS TO ANSWER WITHIN THE TIME ALLOWED 4. PETITION FOR RELIEF FROM JUDGMENT –
based on FAME – provided no appeal has been taken
If there is failure to plead within the time allowed, the within 60 days from notice and 6 months from entry of
defendant may be declared in default upon compliance judgment.159
with the following: (a) the plaintiff must file a motion to
declare the defendant in default (b) serve notice of his 5. ACTION TO ANNUL JUDGMENT – based on
motion to defendant, which must include a notice of EXTRINSIC / COLLATERAL FRAUD – within 4 years from
hearing (c) at the hearing, show proof of failure on the part discovery of the fraud (ONE THAT INDUCES ONE NOT
of the defendant to file his answer within the reglamentary TO PRESENT HIS CASE/PREVENTS FULL AND FAIR
period.155 Note that a court cannot motu propio declare a HEARING)
defendant in default.
6. CERTIORARI if improperly declared in default OR
ONCE DECLARED IN DEFAULT motion to set aside was denied and is tainted with grave
abuse of discretion. Filed within 60 days from notice or
The court can proceed to render judgment granting the judgment order resolution or 60 days from denial (notice)
claimant such relief as his pleading may warrant, of motion for reconsideration.160
UNLESS, the Court in its discretion requires the claimant
to submit the evidence. Such reception may be delegated CASES WHERE NO DEFAULT LIES
to the Clerk of Court, who must be a member of the BAR
In the following cases, default does not lie: (a)
1.In addition, the defaulted defendant is entitled to annulment of marriage (b)declaration of nullity of
NOTICE OF SUBSEQUENT PROCEEDINGS but HE marriage (c) legal separation (d) expropriation, and (e)
CANNOT TAKE PART IN THE TRIAL.156 forcible entry, illegal detainer and the other actions
covered by the Rules on Summary Procedure. In the first
2.EFFECT OF A PARTIAL DEFAULT, where a pleading three cases, the court shall order the prosecuting attorney
asserting a claim states a common cause of action against to investigate whether or not collusion exists, and if there
several defending parties, some of whom answer while is no collusion, to intervene for the state in order to see
others do not , THE COURT SHALL TRY THE CASE that the evidence so presented is not fabricated. 161
AGAINST ALL UPON THE ANSWERS THUS FILED AND
RENDER JUDGMENT UPON THE EVIDENCE RULE 10 – AMENDED AND SUPPLEMENTAL
PRESENTED.157 PLEADINGS

3.THE EXTENT OF RELIEF THAT MAY BE AWARDED WHAT ARE AMENDMENTS


shall not exceed the amount or be different in kind from
that prayed for nor award unliquidated damages.158 Amendments consist of: (1 )Adding or striking out an
allegation or the name of any party (2) Corrections of
WHAT ARE THE REMEDIES OF A DEFAULTED mistakes in the name of a party or mistaken or inadequate
DEFENDANT allegation or description in any other respect.

The available remedies of a defendant who is declared in PURPOSE FOR ALLOWING AMENDMENTS
default are as follows:
Actual merits of the controversy may speedily be
1.MOTION TO SET ASIDE ORDER OF DEFAULT- under determined without regard to technicalities and in the most
oath, filed at any time after notice of declaration in default expeditious and inexpensive manner. 162
and before judgment. Defendant must show by an
AFFIDAVIT OF MERIT that failure to file an answer was KINDS OF AMENDMENTS
due to FAME and that he has a meritorious defense
The kinds of amendments are:
2. MOTION FOR NEW TRIAL on the ground of
FAME if the trial court has rendered judgment but it has 1.Formal Amendments which are defects in the
not yet become final designation of the parties, other clerical or typographical
errors that may summarily be corrected provided no
prejudice is caused the adverse party and are allowed at
any stage, at the Court’s own initiative or on motion. 163
153 Supra, Section 9, Rule 11
154 Supra, Section 10, Rule 11 159 Supra, Rule 38
155 Supra, Section 3, Rule 9 160 Supra, Rule 65
156 Supra, Section 3 (a), Rule 9 161 Supra, Section 3,(e), Rule 9
157 Supra, Section 3 (c), Rule 9 162 Supra, Section 1, Rule 10
158 Supra, Section 3 (d), Rule 9 163 Supra, Section 4, Rule 10

18
have been raised in the pleadings 171, thus paving the way
2.ALL OTHER AMENDMENTS ARE considered as for an amendment of the pleadings to conform to the
SUBSTANTIAL. evidence. This is made upon motion of any party, even
after judgment THOUGH FAILURE TO AMEND DOES
WHEN AMENDMENTS CAN BE MADE NOT AFFECT THE RESULT OF THE TRIAL. Example:
Increased claim for the payment of damages OR made to
1.Formal and Substantial amendments can be made once authorize presentation of evidence. This occurs when
as a matter of right before a responsive pleading is served, evidence is objected to at the trial on the ground that it is
or in case of a Reply, at any time within 10 days after it is not within the issues made by the pleadings, the court may
served.164 allow the pleadings amended and shall do so with liberality
to authorize presentation of evidence.172
1.1 Note that the FILING OF MOTION TO DISMISS
does not bar an amendment as it is not a responsive 3.1 THUS, the failure of a complaint to state a cause
pleading, but can no longer be made if the order of action may be cured by (1) Presentation of evidence to
dismissing the complaint has become final. prove that cause of action followed by an amendment to
conform to evidence, OR (2) Evidence is objected to and
1.2 Prior to the filing of an answer, the plaintiff has the the trial court sustains the objection, this is then followed
absolute right to amend the complaint whether a new by an amendment with leave of court to authorize
cause of action or change in theory is introduced.165 presentation of evidence. Same remedies may be resorted
to WHEN A PARTY FAILS TO RAISE A DEFENSE IN HIS
2.After the filing of a responsive pleading, Substantial PLEADING.
amendments require leave of court, but leave may be
refused if it appears to the court that the motion was on THE EFFECTS OF AN AMENDED PLEADING
made with INTENT TO DELAY. Orders related to leave 1. It supersedes the pleading that it amends
shall be made upon motion filed in court, with notice to the
adverse party and opportunity to be heard.166 2. Admissions in the superseded pleading may be
2.1 That the amendments should not substantially received in evidence against the pleader because it is not
alter the cause of action or defense is NO LONGER THE expunged from the records and admissions in the
RULE as the Rules now allow the pleading of alternative superseded pleading are in the nature of judicial
causes of action/defenses167 and that all such causes or admissions made by a party in the course of the
defenses must be pleaded in accordance with the rule on proceedings which do not require proof and ordinarily
waiver.168 cannot be contradicted except by showing that it was
made through palpable mistake or that no such admission
2.2 The Trial Court may refuse leave or amendments was made.173
when: (a) a responsive pleading has been filed and the
motion for leave to amend is made with intent to delay (b) 3. Claims or defenses alleged in the superseded
purpose is to confer jurisdiction as the court must first pleading but not incorporated in the amended pleading
acquire jurisdiction before it can act169 (c) purpose is to shall be deemed waived.174
cure the defect of a non-existent cause of action. Example:
An amendment of the complaint to correct its having been HOW IS AN AMENDED PLEADING FILED
filed prematurely or when the obligation was not yet due.
A new copy of the entire pleading incorporating the
2.3 IF NO LEAVE IS OBTAINED, the pleading it has amendments which shall be indicated by appropriate
no standing and may be stricken from records marks shall be filed.175

2.4 PROBLEM: Complaint is filed against several 1.NOTE that the date of filing of amended pleadings does
defendants. Some defendants answer, the others have not not retroact to the date of the filing of the original pleading.
yet filed their answers. Amendments will be allowed as a Hence, the statute of limitations runs until the filing of the
matter of right against those who have not filed answers, amendment, but, an amendment that merely supplements
and with leave of court, as against those who have filed and amplifies facts originally alleged in the complaint
their answers.170 relates back to the date of the commencement of the
action and is not barred by the statute of limitations that
3.Substantial amendments can also be made when it is expired after service of the original complaint. Example:
necessary to conform to the evidence. This occurs when The statement of a cause of action is imperfect and is
issues are tried with the express or implied consent of corrected by an amended complaint, the plea of
parties. If such, they are treated in all respects as if they prescription relates to the time of filing BUT the rule will
not apply if a new defendant is impleaded in the amended
complaint and prior to its filing prescription has set in.
164 Supra, Section 2, Rule 10
165 Remington Industrial Sales Corporation v Court of Appeals, WHAT IS A SUPPLEMENTAL PLEADING
382 SCRA 499
166 Supra, Section 3, Rule 10
167 Supra, Section 2, Rule 8 171 Bernardo v Court of Appeals, 263 SCRA 660
168 Supra, Section 1, Rule 9 172 Supra, Section 5, Rule 10
169 Tirona v Alejo, 367 SCRA 17, Gaspar v Dorado, 15 SCRA 173 Supra, Section 4, Rule 129
331 174 Supra, Section 8, Rule 10
170 Siasoco v Court of Appeals, 303 SCRA 186 175 Supra, Section 7, Rule 10

19
A supplemental pleading setting forth transactions, 5.If it is a complaint –in- intervention, within 15 days from
occurrences or events which have happened since the notice of the order admitting the complaint in intervention
date of the pleading sought to be supplemented Example:
Setting up counterclaims after an answer has been filed. 176 6.If it is a supplemental complaint, within 10 days from
notice of the order admitting the supplemental complaint.
1.A supplemental pleading is always upon motion, and on The answer to the complaint shall serve as the answer to
such terms as are just and upon reasonable notice and the the supplemental complaint if no new or supplemental
ADVERSE PARTY IS GIVEN 10 DAYS FROM NOTICE answer is filed.184
OF ORDER ADMITTING THE SUPPLEMENTAL 7.If it involves a complaint served on a non-resident
PLEADING TO PLEAD THERETO.177 defendant who is not in the Philippines through any of the
modes of extra-territorial service, including by publication,
2.A supplemental pleading is meant to supply deficiencies within a reasonable time which shall not be less than 60
in aid of an original pleading, not to entirely substitute the days after notice as the court may specify in its order
latter.178 Thus, when the cause of action stated in the granting leave to effect extra-territorial service of summons
supplemental complaint is different from the cause of
action mentioned in the original complaint, the court ANSWER TO A CROSS CLAIM OR COUNTER CLAIM
should not admit the supplemental complaint.179
The answer to a cross claim or a counter-claim shall be
DISTINCTIONS BETWEEN AN AMENDED PLEADING filed within 10 days from service.185 NOTE that
AND A SUPPLEMENTAL PLEADING compulsory counterclaims need not be answered unless it
raises issues not covered by the complaint .
(1) An amended pleading is filed either as a matter of right
or with leave, a supplemental pleading is always with NOTE that it is required that a compulsory counterclaim or
leave (2) An amended pleading alleges matters occurring a cross claim existing at the filing of defendant’s answer
before the filing of the original pleading, while a must be included therein BUT, if it matures / or is acquired
supplemental pleading alleges matters occurring after the after serving of answer, it may with the court’s permission
filing of the original pleading (3) An amended pleading be presented as such in a supplemental pleading. If
supersedes the original pleading, while a supplemental already existing and not set up through oversight,
pleading allows the original pleading to stand. inadvertence, or excusable neglect, it may, by leave of
court be set up as such by amendment before judgment. 186
RULE 11: WHEN RESPONSIVE PLEADINGS ARE TO
BE FILED REPLY

ANSWER TO THE COMPLAINT It must be filed within 10 days from service of the pleading
responded to.187 Altough the filing of a reply is optional as if
1.Within 15 days after service of summons unless a one is not filed, all new matters are deemed
different period is fixed by the Court. 180 The same period controverted.188
applies to third party complaints.181
MAY THE TIME TO PLEAD BE EXTENDED
2.If covered by the Rules on Summary Procedure, it is 10
days Upon motion and on terms as may be just, the Court it
may extend or allow it to be filed after the time fixed by the
3.If the complaint is amended: (a) as a matter of right, Rules.189 The court may also, upon like terms, allow an
within 15 days from being served with a copy (b) if with answer or other pleading t be filed after the time fixed by
leave of court, within 10 days from notice of order these Rules.
admitting the same. If no new answer is filed, a previously
filed answer may serve as the answer.HOLDS ALSO FOR 1.NOTE that in cases covered by the Rules on Summary
ANSWERS TO AMENDED COUNTER-CLAIMS, CROSS Procedure, the period cannot be extended nor shortened.
CLAIMS, THIRD PARTY (ETC) CLAIM OR COMPLAINTS 2.In quo warranto cases, the period may be shortened. 190
IN INTERVENTION.182
3.A lawyer shall not, after obtaining extensions of time to
4.If defendant is a foreign private juridical entity, within 15 file pleadings, memoranda, or briefs, let the period lapse
days if service of summons is made on the resident agent, without submitting the same or offering an explanation for
within 30 days from receipt of summons by the entity at its failure to do so.191
home office if received by the government office
designated by law.183 WHEN A COMPLAINT SHOULD BE FILED

176 Supra, Section 9, Rule 11 and Section 2, Rule 9 184 Supra, Section 7, Rule 11
177 Supra, Section 6, Rule 10 185 Supra, Section 4, Rule 11
178 Shoemart, Incorporated v Court of Appeals, 190 SCRA 189 186 Supra, Sections 8,9, and 10, Rule 11
179 APT v Court of Appeals, 324 SCRA 533 187 Supra, Section 6, Rule 11
180 Supra, Section 1, Rule 11 188 Supra, Section 10, Rule 6
181 Supra, Section 5, Rule 11 189 Supra, Section 11, Rule 11
182 Supra, Section 3, Rule 11 190 Supra, Section 8, Rule 66
183 Supra, Section 2, Rule 11, Section 128, Corporation Code 191 Rabanal v Tugade, 383 SCRA 484

20
A complaint is not a responsive pleading. It is to be filed ground for dismissal is equivalent to an adjudication on the
upon accrual of the cause of action or any time thereafter merits unless otherwise provided by the court.199
but before it is barred by prescription.
WHEN MUST A RESPONSE / ANSWER BE FILED
RULE 12 – BILL OF PARTICULARS
After service of a bill / definitive pleading OR notice of
WHAT IS A BILL OF PARTICULARS denial of the motion for a bill of particulars, the moving
party has the remaining period that he was entitled to at
It is a definitive statement of any matter which is not the time of the filing of the motion, which shall not be less
covered with sufficient definiteness or particularity to then 5 days in any event.200
enable him to properly prepare his responsive pleading.192
1.The PURPOSE of which is to make more particular or RULE 13 – FILING / SERVICE OF PLEADINGS
definite the ultimate facts in a pleading but is NOT JUDGMENTS / OTHER PAPERS
INTENDED TO SUPPLY EVIDENTIARY MATTERS
The Rule applies to all pleadings / papers as well as
2.It is to be resorted to when the complaint is deficient in service thereof, except those for which a different mode of
details with respect to the factual basis of each and every service is prescribed.201
item claimed, but such deficiency is not such as to amount
to a failure to state a cause of action as the remedy then is FILING / SERVICE DEFINED
to file a motion to dismiss.193
FILING is the act of presenting the pleading or other paper
WHEN SHOULD IT BE FILED to the clerk of court, while SERVICE is the act of providing
a party with a copy of the pleading / paper
Before filing or responding to a pleading or before filing an IF A PARTY IS REPRESENTED BY COUNSEL service is
answer. If pleading is a reply, within 10 days from service made upon counsel or one of them UNLESS service is
thereof ordered to be made upon the party by the Court.
If there is one counsel for several parties, he is entitled to
WHEN WILL OR WHEN CAN COURT ACT UPON IT only one copy served by the opposite side. 202

Upon filing of the motion that points out the defects MODES OF FILING
complained of, the paragraphs wherein they are
contained, and the details desired (it is a litigated motion, The modes of filing are (1) Presenting the original
thus requires a notice of hearing) – the CLERK OF copies of pleadings, appearances, motions, notices,
COURT must IMMEDIATELY BRING IT TO THE orders, judgments and all other papers to the clerk of
ATTENTION OF THE COURT, who may deny or grant the court, OR (2) By registered mail.203
motion OUTRIGHT or allow the parties an opportunity to
be heard.194 1.The clerk of court shall if filing be PERSONAL, endorse
on the pleading, the date and the hour of filing. If it BY
1.IF GRANTED, whether in WHOLE or in PART, the MAIL, the date appearing on the post office stamp /
compliance therewith must be effected within 10 days from registry receipt shall be date of the filing / deposit of court.
notice of order, unless a different period is fixed by the The envelope shall be attached to the record. It bears
Court. stressing that it is the date of mailing, not the date of
receipt of the mail matter, which shall be considered as the
2.The BILL OF PARTICULARS – may be filed either in a date of filing.204 This has been the practice since mail is
separate or in an amended pleading, serving a copy on considered an agent of the Government. 205This is also
the adverse party.195 ONCE filed, it becomes part of the known as the MAILBOX RULE.
pleading for which it is intended.196
2.The PAPERS that are to served or ARE TO BE FILED /
EFFECT OF NON-COMPLIANCE WITH ORDER SERVED are JUDGMENTS, RESOLUTIONS, ORDERS,
PLEADINGS SUBSEQUENT TO THE COMPLAINT,
In case of failure to obey or insufficient compliance, the WRITTEN MOTIONS, NOTICE, APPEARANCES,
Court may order the pleading or portions thereof to which REMAND, OFFER OF JUDGMENT OR SIMILAR
the order was directed to be stricken out OR make such PAPERS SHALL BE FILED AND SERVED UPON
order as it deems just.197 HENCE, it may also dismiss for AFFECTED PARTIES206
failure of the plaintiff to obey order of the Court. 198 The
striking out of a complaint by the lower court upon motion WHAT ARE THE MODES OF SERVICE
of the defendant for failure of the plaintiff to comply with an
order requiring him to submit a bill of particulars as a

199 Vda. De Quillosa v Salazar, 14 SCRA 656


192 Supra, Section 1, Rule 12 200 Supra, Section 5, Rule 12
193 Sabangan v Manila Railroad Company, 28 SCRA 772 201 Supra, Section 1, Rule 13
194 Supra, Section 2, Rule 12 202 Supra, Section 2, Rule 13
195 Supra, Section 3, Rule 12 203 Supra, Section 3, Rule 13
196 Supra, Section 6, Rule 12 204 Ansel v Aledo, 420 SCRA 645
197 Supra, Section 4, Rule 6 205 Supra, Mintu v Court of Appeals, 53 SCRA 114
198 Supra, Section 3, Rule 17 206 Supra, Section 4, Rule 13

21
The general rule is that PLEADINGS, MOTION, papers emanating from the court. A resort to other modes
NOTICES, ORDERS, JUDGMENTS AND OTHER must be accompanied by an explanation why service or
PAPERS shall be served PERSONALLY or by MAIL.207 filing was not done personally. IF NOT, it may be cause to
consider the paper as not filed. 214
1.IF PERSONALLY served, it may done: (a) by delivering
personally a copy to party or his counsel, OR (b) leaving it 1.Where the address of the respondent’s counsel is 83
in his office with a clerk or person having charge thereof, kilometers away from the address of petitioner’s counsel,
OR (3) IF NO PERSON IS FOUND IN THE OFFICE OR such distance makes personal service impracticable, and
HE HAS NO OFFICE, by leaving a copy between the a written explanation why service was not done personally
hours of 8am to 6pm at party’s / counsel’s residence, if might have been superfluous. Liberal construction has
known, with a person of sufficient age and discretion been allowed in cases where the injustice to the adverse
residing therein.208 party is not commensurate with the degree of
thoughtlessness in not complying with the procedure
2.IF BY MAIL, by depositing a copy in the post office in a prescribed.215
sealed envelope, plainly addressed to the party or
counsel, if known, at his address / office, OTHERWISE, at WHAT CONSTITUTES PROOF OF FILING
his residence, if known, postage prepaid and with
instructions to the postmaster to return the mail to sender Proof of filing is shown by: (a) existence of the pleading or
after 10 days if UNDELIVERED. If no registry service is other paper in the records of the case (b) If not in the
available in the locality of the addressee or sender, service record, but is claimed to be: (1) FILED PERSONALLY by
may be by ordinary mail.209 the written / stamped acknowledgment of its filing by the
Clerk of Court on a copy, and (2) FILED BY
2.1 If mailed by PRIVATE CARRIER, the date of REGISTERED MAIL by the registry receipt and the
actual receipt by the court of such pleading and not date of affidavit of the person who did the mailing containing a
delivery to the carrier is deemed the date of filing of that FULL STATEMENT OF: (a) Date and place of depositing
pleading.210 in the post office in a sealed envelope addressed to the
Court, with postage prepaid, and (b) Instructions are given
3.NOTE THOUGH THAT JUDGMENTS, FINAL ORDERS to the postmaster to return the mail to sender after 10
OR RESOLUTIONS shall be served personally or by days, if undelivered.216
registered mail.
WHAT CONSTITUTES PROOF OF SERVICE
3.1 ALSO, if a party is summoned by publication, and
he has failed to appear, judgments, final orders / Proof of service is shown by: (a) Written admission of the
resolutions shall also be served upon him by publication at party served OR official return of the server, or affidavit of
the expense of the prevailing party. 211 the party serving, containing a full statement of the DATE,
PLACE, MANNER OR SERVICE if served personally (b)
4.IF SERVICE CANNOT BE MADE personally or by mail, An affidavit of the person mailing of facts showing
SUBSTITUTED SERVICE MAY BE AVAILED OF as long compliance with Section 7 of the Rule if served by ordinary
as the office and place of residence of the party or his mail (c) An affidavit and registry receipt issued by the
counsel is also unknown, service may be made by mailing office. The registry return card shall be filed
delivering a copy to the clerk of court, with proof of failure immediately upon its receipt by the sender, or in lieu
of both personal service and service by mail. The service thereof, the unclaimed letter together of the sworn /
is complete at the time of such delivery.212 certified copy of the notice given by the postmaster to the
addressee.217
WHEN SERVICE IS COMPLETE
Service will be deemed complete: (a) Upon actual delivery 1.If service is by registered mail, proof of service consists
if undertaken personally (b) Upon expiration of 10 days of the affidavit of the person mailing and the registry
after mailing, unless the Court orders otherwise if receipt, both of which must be appended to the motion.
undertaken by ordinary mail (c) Upon actual receipt by Absent one or the other, or both, there is no proof of
addressee or after 5 days from the date he received the 1 st service.218
notice of the postmaster, whichever date is EARLIER, if
undertaken by registered mail213 (d) At the time of delivery 2.Late filing of the affidavit of service may be considered
to the clerk of court, if undertaken by substituted service as substantial compliance with the Rules.219

WHAT IS THE RULE ON PRIORITY OF SERVICE 3.Failure of a party to comply with the required proof of
service may be excused where the motion is not a
Whenever practicable, service and filing of pleadings and contentious motion and therefore, no right of the adverse
other papers shall be done personally EXCEPT, with party would be affected by the admission thereof.220

207 Supra, Section 5, Rule 13


208 Supra, Section 6, Rule 13 214 Supra, Section 11, Rule 13
209 Supra, Section 7, Rule 13 215 Maceda v. De Guzman vda de Macatangay, 481 SCRA 415
210 Industrial Timber Corporation v NLRC, 233 SCRA 597, 216 Supra, Section 12, Rule 13
Beneco v NLRC, 209 SCRA 55 217 Supra, Section 13, Rule 13
211 Supra, Section 9, Rule 13 218 Cruz v Court of Appeals, 388 SCRA 72
212 Supra, Section 8, Rule 13 219 Ace Navigation, Inc v Court of Appeals, 338 SCRA 70
213 Supra, Section 10, Rule 13 220 PEA v Caoibes, Jr., 312 SCRA 767

22
NOTICE OF LIS PENDENS The sheriff, his deputy, or other proper Court Officer, or for
justifiable reasons by any suitable person authorized by
Is an announcement to the world that a particular property the court issuing the summons.227
(real) is in litigation, serving as a warning that one who
acquires the property or an interest therein does at his 1.An Officer having management of a jail or institution, if a
own risk which is filed with the Office of the Register of defendant is a prisoner therein is deputized as a special
Deeds of the place where the property is located. sheriff for service of summons.228

1.It shall contain (a) the names of the parties (b) object of SIGNIFICANCE OF SUMMONS
the action or defense (c) description of the property. 221
The significance of summons is that it is the primary
2.It is only from the time of the filing of the notice for means by which a Court is able to acquire jurisdiction over
record shall a purchaser or encumbrancer of the property the person of the defendant and to give notice that an
affected thereby, be deemed to have constructive notice of action has been commenced against him.
the pendency of the action and only of its pendency
against parties designated by their real names 1.Jurisdiction cannot be acquired over the person of the
defendant even if he knows of the case against him unless
3.It is available only in an action affecting title or right of he is validly served with summons229 OR the defendant
possession of real property. Specifically in actions (a) to voluntarily appears in the action.
recover possession of real estate (b)to quiet title (c)
to remove a cloud (d) for partition (e) other proceeding of 2.Voluntary appearance shall be equivalent to service of
any kind in court directly affecting title to the land or the summons. The inclusion in a motion to dismiss of other
use or occupation thereof or buildings thereon.222 grounds aside from lack of jurisdiction over the person of
the defendant shall not be deemed a voluntary
WHO MAY AVAIL OF IT appearance.230

The plaintiff or the defendant – when affirmative relief is 2.1 The rule abandons previous rulings of the
claimed in the answer Supreme Court that a motion to dismiss on the ground of
lack of jurisdiction over the person be based solely on that
WHEN MAY IT BE CANCELLED ground, otherwise, it is a voluntary appearance. This is so
Upon order of the court when: It is shown that it has for the because of the OMNIBUS MOTION RULE 231 that all
purpose of molesting the adverse party or it is not objections then available be included otherwise they are
necessary to protect the rights of the party who caused it waived, as the only exceptions are (1) the Court has no
to be recorded.223 jurisdiction over the subject matter; (2) there is another
RULE 14 – SUMMONS action pending between the same parties for the same
cause; (3) or, the action is barred by prior judgment or
DEFINED statute of limitations.232 These defenses are not barred if
not set up.
It is a writ issued sealed and signed by the clerk of court
upon filing of a complaint and payment of requisite legal WHAT ARE THE MODES OF SERVICE
fees224 ISSUED to and DIRECTED to the defendant
containing the following: (a) name of the court and of the 1. Service in person on the defendant by handling a
parties (b) a direction that the defendant answer within the copy thereof to the defendant in person, or if he refuses to
time fixed by the Rules, and (c) notice that unless receive and sign for it, by tendering it to him233
defendant answers, plaintiff will take judgment by default
and may be granted the relief prayed for. ATTACHED 2. Substituted service by leaving a copy of the
THERETO IS A COPY OF THE COMPLAINT AND summons at defendant’s residence with some person of
ORDER FOR THE APPOINTMENT OF A GUARDIAN AD suitable age and discretion, then residing therein or
LITEM, IF ANY.225 leaving it at defendant’s office or regular place of business
with some competent person in charge thereof.234
1.It shall also contain a reminder to the defendant to
observe restraint in filing a motion to dismiss and instead 2.1 BUT, it may only be resorted to, if for justifiable
allege the grounds thereof as defenses in the answer. 226 causes, the defendant cannot be served personally within
a reasonable time. The impossibility of service in person
WHO SERVES SUMMONS must be indicated in the return, otherwise, substituted
service is void. 235

227 Supra, Section 3, Rule 14


228 Supra, Section 9, Rule 14
221 Supra, Section 14, Rule 13 229 UCPB v Ongpin, 368 SCRA 464
222 Viewmaster Construction Corporation v Maulit, 326 SCRA 230 Supra, Section 20, Rules 14
821, Alberto v Court of Appeals, 334 SCRA 756 231 Supra, Section 8, Rule 15
223 Lim v Vera Cruz, 356 SCRA 386 232 Supra, Section 1, Rule 9
224 Supra, Section 1, Rule 14 233 Supra, Section 6, Rule 14
225 Supra, Section 2, Rule 14 234 Supra, Section 7, Rule 14
226 A.M. No. 03-1-09-SC 235 Hamilton v Rey, GR 139283, November 15, 2000

23
2.2 Service of summons on the defendant shall be by INCOMPETENT it is to be served upon him personally and
personal service first and only when the defendant cannot his guardian / or guardian ad litem. In addition, in case of a
promptly be served in person will substituted service be minor, service may also be made on his father or mother 245
availed of.236 (c) REPUBLIC OF THE PHILIPPINES it is to be served on
246
the Solicitor General (d) PROVINCE,
3. Service by publication with leave of court, CITY,MUNICIPALITY OR SIMILAR PUBLIC
obtained by the filing of a motion in writing, supported by CORPORATION it is to be served on the executive head,
an affidavit of the plaintiff or some person in his behalf, or on such other officers as the law or court may direct 247
setting forth the ground that allows resort to it. 237 (e) DOMESTIC PRIVATE JURIDICAL ENTITY its is to be
served on the president, managing partner, general
3.1 The grounds that allow service of summons by manager, corporate secretary, treasurer or in house
publication are: (a) Identity of the defendant is unknown counsel.248 Note the abandonment of doctrine of
OR whereabouts of the defendant is unknown and cannot substantial compliance.249 (f) FOREIGN PRIVATE
be ascertained by diligent inquiry238 (b) Defendant does JURIDICAL ENTITY it is to be served upon its resident
not reside and is not found in the Philippines but the suit agent. If there be no resident agent, the Government
can be maintained against him because it is in REM OR official designated by law such as the SEC, Insurance
QUASI IN REM239 (c) Defendant is a Philippine resident Commissioner, Superintendent of Banks. If none, any of its
but is temporarily out of the country. 240 Note the cross officers or agents in the Philippines. Note the required
reference with Section 15 and the fact that SUBSTITUTED sequence of service. In addition, if a lawyer enters an
SERVICE MAY ALSO BE AVAILED OF. appearance without proof of having been engaged by the
foreign corporation, no voluntary appearance can be
4.Extra-Territorial Service is allowed in suits against a non- inferred.250
resident defendant not found in the Philippines can be
made by: AFTER SERVICE IS COMPLETE, WHAT MUST SERVER
DO
4.1 (a) Personal service (b) Publication in a
newspaper of general circulation in such places and for 1.Within 5 days after completion, a copy of the return must
such time as the court may order, in which case a copy of be served, personally or by registered mail, to plaintiff’s
the summons and order of the court shall be sent by counsel, and he shall return the summons to the clerk of
registered mail to the last known address (c) Or any other court who issued it together with proof of service.251
manner the court may deem sufficient. 241 Resort to
registered mail has been deemed appropriate.242 2.PROOF OF SERVICE is the writing executed by the
server setting forth (1) the manner, place and date of
4.2 EXTRA-TERRITORIAL SERVICE CAN BE service; (2) the paper/s which have been served with the
AVAILED OF when: (a) Action affects the personal status process and name of the person who received the same.
of the plaintiff (b) Action relates to, or the subject of which IT SHALL BE SWORN TO WHEN MADE BY A PERSON
is property within the Philippines in which the defendant OTHER THAN THE SHERIFF / DEPUTY.252
has or claims a lien or interest, actual or contingent (c)
When the relief demanded, in whole or in part consists of 2.1 IF SUMMON IS BY PUBLICATION, PROOF OF
excluding the defendant from any interest in property SERVICE CONSISTS OF: (a) Affidavit of printer, foreman,
located in the Philippines (d) When the defendant’s principal clerk editor, business manager or advertising
property has been attached in the Philippines.243 manager, COPY OF PUBLICATION ATTACHED, and (b)
Affidavit showing the deposit of a copy of the summons
4.3 Resort to extra-territorial service requires leave of and order for publication in the post office, postage
court. prepaid directed to the defendant by registered mail at / to
his last known address.253
UPON WHOM MAY SERVICE OF SUMMONS BE MADE
RULE 15 – MOTIONS
Service of summons is to be made upon the defendant. If
the defendant is: (a) AN ENTITY WITHOUT JURIDICAL DEFINED
PERSONALITY it is to be served upon any one of them or
upon person in charge of the office or place of business A motion is an application for relief other than a
maintained in such name BUT such shall not bind pleading.254
individually any person whose connection with the entity
has, UPON DUE NOTICE, been severed before the action REQUISITES OF A VALID MOTION
has brought244 (b) MINOR, INSANE OR OTHERWISE
245 Supra, Section 10, Rule 14
236 Samartino v Raon, 383 SCRA 664 246 Supra, Section 13, Rule 14
237 Supra, Section 17, Rule 14 247 Supra, Section 13, Rule 14
238 Supra, Section 14, Rule 14 248 Supra, Section 11, Rule 14
239 Supra, Section 15, Rule 14 249 Mason v Court of Appeals, 413 SCRA 303, E.B. Villarosa
240 Supra, Section 16, Rule 14 and Partner Co, Ltd v. Benito, 312 SCRA 65
241 Supra, Section 15, Rule 14, Valmonte v Court of Appeals, 250 Litton Mills v Court of Appeals, 256 SCRA 696
252 SCRA 92 251 Supra, Section 4, Rule 14
242 Cariaga v Malaya, 143 SCRA 441 252 Supra, Section 18, Rule 14
243 Supra, Section 15, Rule 14 253 Supra, Section 19, Rule 14
244 Supra, Section 8, Rule 14 254 Supra, Section 1, Rule 15,

24
afternoon of the next working day UNLESS THE MOTION
1. Shall be in writing except when made in open REQUIRES IMMEDIATE ACTION.266This day is MOTION
court or in the course of the hearing or trial. 255 Example: a DAY.
motion for continuance made in presence of adverse party.
WHAT SHOULD A MOTION CONTAIN
2. It must state the relief sought to be obtained and
the grounds on which it is based, and if required by the 1.A motion attacking a pleading (motion to dismiss) order,
rules or necessary to prove facts alleged therein, it shall judgment, or proceedings (motion for reconsideration)
be supported by affidavits or other papers.256 shall include all objections then available, and all
objections not so included are deemed waived EXCEPT
3. It shall be set for hearing by the applicant except the defenses of Lack of Jurisdiction, Litis Pendentia, Res
when the motion can be acted upon by the court without Judicata, Statute of Limitations.267
prejudicing the rights of the adverse party.257 Example:
Motion for extension of time to plead 1.1 This is the OMNIBUS MOTION RULE.268

4. It must contain a notice of hearing addressed to all 1.2 The purpose of the Rule is to obviate multiplicity of
parties concerned, specifying the time, date of the hearing motions as well as discourage dilatory pleadings. 269
which must not be later than 10 days after the filing Litigants should not be allowed to reiterate identical
thereof. 258 motions speculating on the possible change of opinion of
the court or judges thereof.270
4.1 A motion without a notice of hearing is pro-forma
or a mere scrap of paper. It presents no question which 1.3 It requires the movant to raise all available
the court should decide. The rationale behind the rule is exceptions in a single opportunity to avoid multiple
plain: unless the movant sets the time and place of piecemeal objections. But to apply the statutory norm,
hearing, the court will be unable to determine whether the THE OBJECTIONS MUST BE AVAILABLE TO THE
adverse party agrees or objects to the motion, and if he PARTY AT THE TIME THE MOTION WAS FILED.271
objects, to hear him on his objection. The objective is to
avoid a capricious change of mind in order to provide due 2.IF MOTION IS ONE FOR LEAVE TO FILE A PLEADING
process to both parties and ensure impartiality.259 OR MOTION, IT SHALL BE ACCOMPANIED BY THE
PLEADING / MOTION SOUGHT TO BE ADMITTED. 272
4.2 The absence of the notice of hearing will not toll Example: Motion for leave to admit amended complaint.
the running of the reglementary period for appeal.260
3.As to FORM, the Rules applicable to pleadings shall
5. It must be served, together with the notice of apply to written motions as far as it concerns captions,
hearing on the adverse party at least 3 days before the designation, signature and other matters.273
date of hearing UNLESS THE COURT FOR GOOD
CAUSE SETS THE HEARING EARLIER.261 RULE 16 – MOTION TO DISMISS

5.1 The purpose of the three day notice rule is to WHEN AND HOW IT CAN BE FILED
avoid surprise upon the opposite party and to give him
time to study and meet the arguments of the motion. 262 1.By Motion, within the time for the filing of an answer but
before the filing of an answer.
6. There must be proof of service of every written
motion set for hearing otherwise it shall not be acted 1.1 The rule is not absolute as a motion to dismiss
upon.263 may still be filed after answer on the ground of (a) lack of
jurisdiction (b) litis pendentia (c) lack of a cause of action,
6.1 As a general rule, proof of service is mandatory.264 and (d) discovery during trial of evidence that would
constitute ground for dismissal.274
6.2 A judge can act ex-parte on a motion where the
rights of the adverse party are not affected.265 2.AS AN AFFIRMATIVE DEFENSE IN THE ANSWER, and
in the discretion of the court, a preliminary hearing may be
WHEN SHOULD MOTIONS BE SET had as if a motion to dismiss has been filed. IF ACTION IS
DISMISSED, it shall be without prejudice to the
All motions must be scheduled for hearing on Friday prosecution in the same / separate action of a counter-
afternoons or if it be a non-working holiday, in the claim pleaded in the answer.275
255 Supra, Section 2, Rule 15 266 Supra, Section 7, Rule 15
256 Supra, Section 3, Rule 15 267 Supra, Section 1, Rule 9
257 Supra, Section 4, Rule 15 268 Supra, Section 8, Rule 15
258 Supra, Section 5, Rule 15 269 Dacanay v Alvendia, 30 SCRA 31
259 Fajardo v Court of Appeals, 354 SCRA 736 270 Miranda v Court of Appeals, 71 SCRA 295
260 Cledera v Sarmiento, 39 SCRA 553 271 PH Credit Corporation v Court of Appeals, 370 SCRA 155
261 Supra, Section 4, Rule 15 272 Supra, Section 9, Rule 15
262 Remonte v. Bonto, 16 SCRA 257 273 Supra, Section 10, Rule 15
263 Supra, Section 6, Rule 15 274 Panganiban v Pilipinas Shell Petroleum Corporation, 395
264 Cruz v Court of Appeals, 388 SCRA 72 SCRA 624
265 Sumadchat v Court of Appeals, 111 SCRA 488 275 Supra, Section 6, Rule 16

25
6.1 The REQUISITES OF RES JUDICATA are: (a)
WHAT GROUNDS ARE AVAILABLE Former judgment must be FINAL (b) Rendered by a
court having jurisdiction over the subject matter and the
A motion to dismiss may be made on any of the following parties (c) It must be a judgment or order on the merits
grounds:276 (d)There must be between 1st / 2nd action, identity of
parties / subject matter / causes of action
1. The court has no jurisdiction over the person of
the defending party 6.2 The DOCTRINE IS FOUNDED ON 2 GROUNDS:
(a) Public policy and necessity which makes it in the
2. The court has not jurisdiction over the subject interest of the state that there should be an end to litigation
matter of the claims (b) Litigant should be spared the hardship of being vexed
twice for the same cause
3. Venue is improperly laid
6.3 NOTE that there can be no res judicata in support
3.1 An objection to improper venue must be made cases as future support cannot be compromised.282
before a responsive pleading is filed, otherwise it is
deemed waived.277 6.4 Statute of Limitations or prescription is a statute
establishing a period of time from the accrual of a cause of
4. Plaintiff has no legal capacity to sue action within which a right of action must be exercised. If
the action is not brought within the period, then it is barred.
4.1 This means that he is not in exercise of his civil
rights, or does not have the necessary qualification to 7. The pleading asserting the claim states no cause
appear or does not have the character / representation he of action.
claims AS OPPOSED TO the LACK OF PERSONALITY
TO SUE which means that he is NOT the real party in 7.1 The TEST OF SUFFICIENCY OF A CAUSE OF
interest, and the basis for dismissal then is NO CAUSE OF ACTION is: Whether accepting the veracity of the facts
ACTION or FAILURE TO STATE A CAUSE OF ACTION.278 alleged in the complaint, the Court can render judgment
(valid) upon the same in accordance with the prayer in
5. There is another action pending between the complaint.
same parties for the same cause
7.2 NO PRESENTATION OF EVIDENCE IS
5.1 This is known as litis pendentia REQUIRED AS THERE IS A HYPOTHETICAL
ADMISSION OF THE FACTS ALLEGED IN THE
5.2 The REQUISITES for its application are: (a) COMPLAINT
Identity of the parties, or at least such as representing the
same interests in both actions (b) Identity of rights 7.3 FAILURE TO STATE A CAUSE OF ACTION/NO
asserted and reliefs prayed for, the relief being founded on CAUSE OF ACTION DISTINGUISHED FROM LACK OF A
the same facts. Identity in both cases, is such that CAUSE OF ACTION283: (a) The former refers to
judgment in the pending case would, regardless of which insufficiency of allegations, while the latter refers to
party is successful amount to res judicata in the other. 279 insufficiency of factual basis (b) The former is raised only
in a in a motion to dismiss before responding to a
5.3 BETWEEN THE FIRST OR SECOND ACTION / complaint, while the latter can be raised at any time (c)
OR LATTER ACTIONS – APPLY THE “PRIORITY IN TIME The former allows dismissal to be had at the early stages
RULE” BUT RULE MUST YIELD TO THE “MORE of the action, while the latter allows dismissal after
APPROPRIATE ACTION”. Example: An action for questions of fact have been resolved after evidence is
declaratory relief to interpret a lease contract was filed presented or stipulations / admissions are had.
before an ejectment case, where the Supreme Court held
that the ejectment case is the more appropriate action. 280 8. Claim or demand set forth in plaintiff’s pleading
has been paid, waived, abandoned, or otherwise
5.4 There is a 3RD TEST: INTEREST OF JUSTICE extinguished
RULE which is a determination of which court would be in
a better position to serve the interest of justice considering 9. Claim on which the action is founded is
: (a) nature of the controversy; (b) comparative unenforceable under the provisions of the statute of
accessibility of the court to the parties; (c) other similar frauds.
factors.281
9.1 Statute of Frauds is statute/s that deals with the
6. The cause of action is barred by a prior judgment enforcement and requirements of agreements in particular
or by the statute of limitations circumstances. It is descriptive of statutes which require
certain classes of contracts to be in writing.284
276 Supra, Section 1, Rule 16
277 Fernandez v ICB, 316 SCRA 326 10. A condition precedent for filing the claim has not
278 Columbia Pictures, Inc. v Court of Appeals, 261 SCRA 144, been complied with
Travelwide Assn of the Phil. v. Court of Appeals, 199 SCRA 205
279 Victronics Computer v RTC, 217 SCRA 517 282 De Asis v Court of Appeals, 303 SCRA 176
280 Teodoro v Mirasol, 99 Phil 150 283 Supra, Rule 33
281 Roa-Magsaysay v Magsaysay, 98 SCRA 592 284 Litonjua v Fernandez, 427 SCRA 478

26
10.1 In certain cases, referral of a case to the Lupon is 2.Filing a motion to dismiss but such will not result in
a condition precedent for filing a complaint in court. It is dismissal without the approval of the court and upon terms
not jurisdictional.285 It may be waived if not raised and conditions as the court deems proper. BUT, if a
seasonably in a motion to dismiss.286 counterclaim has been pleaded before service of motion to
dismiss – the dismissal is limited to the complaint. If shall
RESOLUTION OF A MOTION TO DISMISS be without PREJUDICE TO RIGHT OF DEFENDANT to
prosecute his counterclaim in a separate action unless
1.It shall BE HEARD287, at the hearing, the parties shall within 15 days from notice of the motion he manifests a
submit arguments on the questions of law and evidence preference to have it resolved in the same action.
on the questions of law and fact involved EXCEPT THOSE UNLESS specified, a dismissal is without prejudice. NOTE
NOT AVAILABLE AT THAT TIME. SHOULD THE CASE also that a CLASS SUIT shall not be dismissed or
GO TO TRIAL, EVIDENCE DURING THE HEARINGS compromised without the approval of the Court.292
SHALL AUTOMATICALLY BE PART OF THE EVIDENCE
OF PARTY PRESENTING THE SAME. COURT DISMISSAL ON ITS MOTION OR THAT OF
DEFENDANT
2.After the hearing, Court shall either DISMISS THE
ACTION, DENY THE MOTION OR ORDER AMENDMENT The court can motu propio or upon motion of the
OF THE PLEADING, stating clearly and distinctly the defendant dismiss a complaint when: (a)If, for no
reasons for the action taken.288 justifiable reason, the plaintiff fails to appear on the date of
the presentation of his evidence in chief on the complaint
2.1 It is now mandated that the Court cannot defer (b) If, for no justifiable reason, plaintiff fails to prosecute
resolution of the motion based on the reason that the his action for an unreasonable length of time (c) If, for no
ground relied upon does not appear to be indubitable or justifiable reason, plaintiff fails to comply with Rules of
sure Court or any order of the Court. DISMISSAL IS WITHOUT
PREJUDICE TO RIGHT OF THE DEFENDANT TO
3.IF MOTION IS DENIED, the movant shall file an answer PROSECUTE HIS COUNTERCLAIM IN THE SAME OR
within the balance of the period prescribed by Rule 11, SEPARATE ACTION and SHALL HAVE THE EFFECT OF
which he was entitled to at the time of serving the motion, ADJUDICATION ON THE MERITS, UNLESS
but not less than 5 days in any event, COUNTED FROM OTHERWISE DECLARED BY THE COURT.293
NOTICE OF DENIAL. IF ORDERED AMENDED, an
answer is to be filed within period prescribed by Rule 11, 1.The REMEDIES OF THE PLAINTIFF are: (a) Appeal
counted from service of amended pleading, unless the the dismissal as it is a FINAL ORDER, or (b) If without
court provides a longer period. Note that it is 15 days as prejudice, REFILE THE ACTION as an order dismissing
no answer has of yet been filed. Hence the amendment is without prejudice is not subject to appeal.
one that is a matter of right.289
2.At the pre-trial, the court ordered the parties to submit a
3.1 The EFFECT OF DISMISSAL is that subject to the compromise agreement within a ten day period. The
right to appeal, an order granting a motion to dismiss on parties were unable to submit the compromise agreement,
the grounds of (a) prior judgment or statute of limitations thus leading to a dismissal. There is nothing in the rules
(b) claim / demand has been paid, waived abandoned or that imposes a sanction for failure to submit a compromise
otherwise extinguished, or (c) is unenforceable under the agreement.294
statute of frauds SHALL bar refiling of the same. 290
APPLICABILITY OF THE RULE

RULE 17 - DISMISSAL OF ACTIONS Rule applies to dismissal by the DEFENDANT of his


counterclaims cross-claims or 3rd party claims. Voluntary
PLAINTIFF DISMISSAL OF HIS OWN COMPLAINT dismissal by the claimant by notice as under Section 1 of
the Rule shall be made before a responsive pleading,
A plaintiff may cause the dismissal of his complaint by: motion for summary judgment is served, or if there be
none, before introduction of evidence at the trial or
1.Filing of a notice of dismissal at anytime before service hearing.295
of an answer or motion for summary judgment. Once filed,
the court shall issue an order confirming the dismissal,
which is without PREJUDICE, unless stated otherwise. RULE 18 – PRE-TRIAL
BUT, such dismissal will operate as adjudication on the
merits when filed by a plaintiff who has once dismissed in WHAT IS PRE-TRIAL
a competent court, his action based on or including the
same claim.291 This is known as the 2 dismissal rule. It is a procedural devise intended to clarify and limit the
basic issues between the parties. Its main objective is to
285 Junson v martinez, 405 SCRA 390
286 Banares v Balising, 328 SCRA 36
287 Supra, Section 2, Rule 16
288 Supra, Section 3, Rule 16 292 Supra, Section 2, Rule 17
289 Supra, Section 4, Rule 16 293 Supra, Section 3, Rule 17
290 Supra, Section 5, Rule 16 294 Ruiz, Jr v CA, 212 SCRA 660
291 Supra, Section 1, Rule 17 295 Supra, Section 4, Rule 17

27
simplify, abbreviate and expedite trial, or otherwise 9.Such other matter as may aid in the prompt disposition
dispense with it.296 of the action

It is a conference or hearing at which the court, with the UPON WHOM NOTICE OF PRE-TRIAL IS TO BE
cooperation of the parties, seek to determine definitively SERVED
what precisely are the factual issues to be tried and how
each party intends to establish his position on each It shall be served on counsel, or party if not represented by
disputed factual issue. counsel. Counsel is charged with the duty to notify the
party.299
WHEN CONDUCTED
WHOSE PRESENCE IS REQUIRED AT PRE-TRIAL
After the last pleading has been served and filed. It shall
be the duty of the plaintiff to move ex-parte that the case The parties and counsel are required to be present during
be set for pre-trial.297 the pre-trial. A party may be excused if: (a) A valid cause is
shown therefore (b)A representative shall appear duly
1.SC Adm. Circular 3-99 dated January 15, 1999 defined authorized in writing to do the following: (1) enter into
promptly as 5 days. amicable settlement; (2) submit to alternative modes of
dispute resolution; (3) enter into stipulations / admissions
2.SC Administrative Matter No. 03-1-09, SC, Section A of fact / documents.300
(1.2) Should the plaintiff fail to move ex-parte to set case
for pre-trial, the branch clerk of court should issue a notice EFFECT OF FAILURE TO APPEAR
of pre-trial.
1.If plaintiff fails to appear despite DUE NOTICE, he may
2.1 The same circular also requires that the presiding be declared NON SUITED and the complaint DISMISSED.
judge direct the parties to mediation, if possible. If it fails it The dismissal shall be with prejudice, unless otherwise
will schedule the pre-trial BUT IT MAY ALSO SCHEDULE ordered by the court. HIS REMEDY is to appeal order of
A PRELIMINARY CONFERENCE before the branch clerk dismissal because it is a FINAL resolution. If dismissed
of court to assist them in REACHING A SETTLEMENT, without prejudice, he can REFILE the complaint
PRE-MARKING OF DOCUMENTS AND EXHIBITS AND
TO CONSIDER OTHER MATTERS THAT WILL AID IN 2.If defendant fails to appear despite due notice, plaintiff
PROMPT DISPOSITION. The JUDGE is also directed to IS ALLOWED to present his evidence ex-parte and the
consider assisting the parties in effecting a settlement court may render judgment on the basis thereof. 301
given the evidence of the parties.
3.AS A RULE, THERE CAN BE NO SECOND PRE-TRIAL
3.The last pleading is the answer to the original complaint, UNLESS BOTH PARTIES CONSENT.302
cross claim, or, third party complaint AND the reply.
WHAT MUST BE FILED BEFORE PRE-TRIAL
NATURE AND PURPOSE
A pre-trial brief must be filed and served on the adverse
Pre-trial is by nature mandatory and the purpose for its party at least 3 days before the pre-trial containing: 303
conduct is to take up the following matters:298
1.Statement of willingness to enter into an amicable
1.Possibility of amicable settlement / or submission to settlement, the desired terms or to submit to alternative
alternative modes of dispute resolution modes of dispute resolution

2.Simplification of the issues 2.Summary of admitted facts / proposed stipulation of


3.Necessity / desirability of amendment to the pleadings facts

4.Possibility of obtaining stipulations or admissions of fact 3.Issues to be tried or resolved


and of documents to avoid unnecessary proof
4.Number of witnesses / names, abstract of testimonies,
5.Limitation of number of witnesses approximate number of hours that will be required for
presentation of their respective evidence
6.Advisability of a preliminary reference of issues to a
commissioner 5.Copies of all documents intended to be presented which
statement of the purposes of their offer
7.Propriety of judgment on the pleadings, summary
judgment, or dismissing the action if a valid ground 6.Manifestation of their having availed of or their intention
therefor be found to exist to avail of discovery procedure, or need for referral of any
issues to commissioners
8.Advisability of suspending the proceedings

299 Supra, Section 3, Rule 18


300 Supra, Section 4, Rule 18
296 Interlining v Philippine Trust Company, 378 SCRA 521 301 Supra, Section 5, Rule 18
297 Supra, Section 1, Rule 18 302 Young v Court of Appeals, 204 SCRA 584
298 Supra, Section 2, Rule 18 303 Supra, Section 6, Rule 18

28
7.Applicable law / jurisprudence intervenor will either GAIN or LOSE by direct legal
operation and effect of judgment. 310
8.Available trial dates of counsel for complete presentation
of evidence which must be within a period 3 months from 3.Intervention does not lie for a transferee pendente lite. 311
the first day of trial.304
HOW AND WHEN CAN A PERSON INTERVENE
FAILURE TO FILE A PRE-TRIAL BRIEF SHALL HAVE
THE SAME EFFECT AS FAILURE TO APPEAR Filing of a motion for leave of court to intervene, attaching
thereto a copy of the pleading in intervention, which is then
PRE-TRIAL ORDER served on the original parties at any time before rendition
of judgment by the trial court.312
Proceedings shall be recorded. Upon termination, court
shall issue an order which shall recite in detail: (a) matters 1.The COURT MAY REFUSE TO GRANT LEAVE WHEN
taken up (b) action taken thereon (c) amendments allowed (a) It will unduly delay or prejudice the adjudication of the
to the pleadings (d) agreements / admissions made by the rights of the original parties. Example: Delay or laches in
parties as to any of the matters taken (e) explicitly defining bringing intervention, OR (b) Intervenor’s rights may be
and limiting the issues to be tried. OBJECT – it shall fully protected in a separate proceeding. Example:
control the subsequent course of the action, UNLESS Attachment of real property subject of a mortgage
MODIFIED TO PREVENT MANIFEST INJUSTICE. 305
2.The pleadings in intervention are (a) Complaint in
1.Pre-trial is primarily intended to make certain that all Intervention, if he asserts a claim against either or all of
issues necessary to the disposition of a case are properly the original parties, OR (b) Answer in Intervention, if he
raised. Thus, to obviate the element of surprise, parties unites with the defending party in resisting the claim of the
are expected to disclose at a pre-trial conference all issues plaintiff. 313
of law and fact which they intend to raise at the trial,
except such as may involve privileged or impeaching 3.If granted, a complaint in intervention is to be replied to
matters. The determination of issues at a pretrial within 15 days from notice of the order admitting the same
conference bars the consideration of other questions on unless a different period is fixed by the court.
appeal.306
4.NO INTERVENTION IS ALLOWED IN LAND
2.NOTE THAT TRIAL SHALL BE LIMITED TO ISSUES REGISTRATION CASES as the remedy is to file an
STATED IN THE PRE-TRIAL ORDER.307 OPPOSITION. Neither is it allowed in cases covered by
the Rules on Summary Procedure.
3.Notwithstanding, courts are not required to resolve all
issues raised in pleading unless necessary for the 5.Intervention is merely collateral or accessory or ancillary
resolution of the case.308 to the principal action and not an independent proceeding.
Hence, with the final dismissal of the original action, the
RULE 19 – INTERVENTION complaint in intervention can no longer be acted upon. 314
6.An order denying a motion for intervention is
WHO MAY INTERVENE appealable.315

A person who has a (a) legal interest in the matter in RULE 20 – CALENDAR OF CASES
litigation (b) has legal interest in the success of either of
the parties (c) has an interest against both or (d) is so MAINTENANCE OF THE COURT CALENDAR
situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or The clerk of court, under the direct supervision of a judge,
an officer thereof.309 shall keep a calendar for PRE-TRIAL, TRIAL, TRIALS
THAT WERE ADJOURNED OR POSTPONED, THOSE
1.Examples are (a)an action for payment of money, where WITH MOTIONS TO SET FOR HEARING. In fixing the
personal property of the defendant is attached, a 3 rd calendar, PREFERENCE IS GIVEN TO HABEAS
person claiming the attached property can intervene (b) CORPUS, ELECTION CASES, SPECIAL CIVIL ACTIONS,
action by alleged owners of the land sought to be AND THOSE REQUIRED BY LAW.316
foreclosed.
ASSIGNMENT OF CASES
2.The interest which entitles a person to intervene in a
suit must be in the matter in litigation and of SUCH The assignment of cases shall always by raffle done in
DIRECT OR/AND IMMEDIATE CHARACTER that open session of which adequate notice shall be given to
afford interested parties the opportunity to be present. 317

310 Roxas v Dinglasan, 28 SCRA 430


304 Section 6, SC Adm. Circular 3-99, January 15, 1999 311 Supra, Section 19, Rule 3
305 Supra, Section 7, Rule 18 312 Supra, Section 2, Rule 19
306 Son vs. Son, 251 SCRA 556; PPA vs. City of Iloilo, 406 313 Supra, Section 3, Rule 19
SCRA 88 314 Barangay Matictic v Elbinias, 148 SCRA 83
307 Supra, Section 5, Rule 30 315 Foster-Gallego v Galang, 435 SCRA 275
308 IBAA vs. IAC, 167 SCRA 450 316 Supra, Section 1, Rule 20
309 Supra, Section 1, Rule 19 317 Supra, Section 2, Rule 20

29
The purpose is to obviate public suspicion regarding deposition is to be taken (c) On the basis of such proof of
assignment of cases to predetermined judges.318 service, the clerk upon authority and under seal of the
court, shall issue the subpoena BUT a subpoena duces
RULE 21 – SUBPOENA tecum cannot be issued without an order of the Court (4)
Subpoena is to be served on witness whose deposition is
WHAT IS A SUBPOENA to be taken.325

A process directed to a person requiring him to attend and 2.Witness is a detention prisoner, if no permission of the
testify at the hearing or trial of an action, or at any court in which his case is pending is obtained or if the
investigation conducted by competent authority, or the witness is a prisoner sentenced to death, reclusion
taking of his deposition perpetua or life imprisonment and is confined in a penal
institution, if authority of the SC to bring out the prisoner
KINDS OF SUBPOENA has not been obtained. The court should examine and
study the application properly to determine if it is being
The kinds of subpoena are: (a) SUBPOENA AD made for a valid purpose.326
TESTIFICANDUM if it directs and requires a person to
attend and testify, OR (b) DUCES TECUM if it requires him FORM AND CONTENTS OF SUBPOENA
to bring books/documents/or other things under his
control.319 A subpoena must contain the following: (a) Name of the
court (b) Title of action/investigation AND IS TO BE
BY WHOM ISSUED DIRECTED to the person whose attendance is required. IF
DUCES TECUM, in addition, it must contain a reasonable
A subpoena is issued by (a) The court before whom the description of the books, documents, things demanded
witness is required to attend (b) The court where which is must appear to the Court to be PRIMA FACIE
deposition is to be taken (c) Officer or body authorized by relevant.327
law to do so in connection with investigations that it may
conduct (d) Any justice of the Supreme Court/Court of WHAT ARE THE GROUNDS TO QUASH A SUBPOENA
Appeals in any case or investigation pending within the
Philippines320 1.If DUCES TECUM, it may be quashed on the following
grounds: (a) It is unreasonable and oppressive (b)
1.A request by a party for the issuance of a subpoena Relevancy of the books, documents or things do not
does not require notice to other parties to the action. 321 appear (c) Person in whose behalf subpoena is
issued fails to advance the reasonable costs of the
2.In taking depositions, the clerk of court shall not issue a production thereof (d) The witness fees and kilometrage
subpoena duces tecum without a court order.322 allowed by the rules were not tendered when subpoena
was served. Under A.M. No. 04-2-04-SC, witness fees
3.Absent any proceeding, suit or action, commenced or shall be PHP 200.00 a day inclusive of all expenses
pending before a court, a subpoena may not issue. 323
2.If AD TESIFICANDUM, it may be quashed on the
WHEN IS A WITNESS NOT BOUND BY A SUBPOENA following grounds: (a) Witness is not bound by the
subpoena (b) Witness fees and kilometrage allowed by
1.Witness resides more than 100 kilometers from his rules were not tendered when the subpoena was
residence to the place where he is to testify by the served.328
ordinary course of travel.324 This is also called the
VIATORY RIGHT OF A WITNESS or the right not to be HOW IS A SUBPOENA SERVED
compelled to testify in a civil case if he lives more than 100
kilometers from his residence to the place where he is to In the same manner as personal or substituted service of
testify by ordinary course of travel. summons, original is to be exhibited and delivered to
person on whom it is served – tendering the fees for one
1.1 If the viatory right is invoked, a witness can still be day attendance at the kilometrage allowed by Rules
compelled to testify by the taking of his deposition in a EXCEPT if subpoena is issued by or on behalf of the
place within 100 kilometers from where he resides, Republic of the Philippines or an officer or agency thereof.
observing the following steps: (a) Party desiring to take Tender must be made so as to allow the witness a
deposition shall give reasonable notice in writing to every reasonable time for preparation or travel to the place of
other party in the action stating the TIME, PLACE AND attendance.329
NAME/ADDRESS OF PERSON WHOSE DEPOSITION IS
TO BE TAKEN. There should be proof of service of the 1.If DUCES TECUM, the cost of production of books,
notice (b) Proof of service of notice to take deposition shall papers or things must also be tendered.
be presented to the clerk of court of the place where
2.Under A.M. No. 04-2-04-SC, the fee for service of
318 Ang v Bello, 163 SCRA 358 summons is PHP 100.00 per witness.
319 Supra, Section 1, Rule 21
320 Supra, Section 2, Rule 21 325 Supra, Section 5, Rule 21
321 Adorio v Bersamin, 273 SCRA 217 326 Supra, Section 2, Rule 21
322 Supra, Section 5, Rule 21 327 Supra, Section 3, Rule 21
323 Collado v Bravo, 356 SCRA 411 328 Supra, Section 4, Rule 21
324 Supra, Section 10, Rule 21 329 Supra, Section 6, Rule 21

30
The modes of discovery (a) Deposition pending action 334
CAN A PERSON BE COMPELLED TO APPEAR AND (b) Deposition before action or pending appeal 335(c)
TESTIFY WITHOUT A SUBPOENA Interrogatories to parties336 (d) Request for admission by
adverse party337 (e) Production or inspection of
Yes, when he is PRESENT IN COURT, in which event it is documents / things338 (f) Physical / mental examination of
as if he were in attendance upon subpoena issued by the persons339
Court.330
WHEN CAN DEPOSITIONS PENDING ACTIONS BE
WHAT ARE THE CONSEQUENCES OF DISOBEDIENCE TAKEN
TO A SUBPOENA
1.WITH LEAVE OF COURT, after jurisdiction has been
The consequences of disobedience are: (a) He may be acquired / obtained over any defendant or over property
arrested and brought before the Court where his which is the subject of the action as the issues are not yet
attendance is required, the cost of warrant and seizure joined and disputed facts are not yet clear OR if a person
shall be paid by the witness if the Court finds disobedience is confined in a prison with LEAVE OF COURT ONLY, on
to be willful and without just excuse. 331 (b) Citation in such terms that the Court may prescribe.
contempt by the court from which the subpoena is issued.
It not issued by a Court, then in accordance with the 2.WITHOUT LEAVE OF COURT, after an answer has
applicable rule / law.332 been served.340

RULE 22 – COMPUTATION OF TIME WHOSE DEPOSITION MAY BE TAKEN, HOW TAKEN,


BY WHOM
HOW COMPUTED
Any person, whether a party or not, upon ORAL
The day of the act / event from which the designated EXAMINATION OR WRITTEN INTERROGATORIES upon
period of time begins to run is excluded and date of the initiative of ANY PARTY.
performance included. If the last day falls on a Saturday,
Sunday or legal holiday in the place where the Court sits, SCOPE OF A DEPOSITION
the time shall not run until the next working day.333
GENERALLY, the deponent may be examined regarding
EFFECT OF INTERUPTIONS any matter, NOT PRIVILEGED, which is RELEVANT TO
THE SUBJECT OF THE PENDING ACTION whether it
Allowable period after interruption shall start to run on the RELATES TO CLAIM OR DEFENSE of any other party.
day after, notice of the cessation of the cause thereof. The INCLUDING THE EXISTENCE, DESCRIPTION, NATURE,
day of the act that caused cessation shall be excluded in CUSTODY, CONDITION, LOCATION of any BOOKS,
the computation of the period. DOCUMENTS OR OTHER TANGIBLE THINGS and the
IDENTITY and LOCATION of persons having knowledge
1.RULE ON COMPUTATION OF TIME DOES NOT APPLY of relevant facts.341
TO PRESCRIPTION OF OFFENSES or PRESCRIPTION
OF CAUSES OF ACTION. Hence, if the last day falls on a 1.The limitation as to the taking and scope of a deposition
Saturday, Sunday or legal holiday, it prescribes on the said after notice is served for its taking by oral examination,
date. UPON MOTION SEASONABLY FILED by a PARTY OR of
the PERSON to be examined, and for GOOD CAUSE
RULES 23 TO 29 – MODES OF DISCOVERY shown, the court in which the action is pending may order:
(a) Deposition not be taken (b)It be taken only at
WHAT IS DISCOVERY some designated place other than that stated in the notice
(c)It be taken only on written interrogatories (d) That
The methods used by the parties to a civil action to obtain certain matters shall not be inquired into (e) That scope of
information held by the other party that is relevant to the the examination shall be held without anyone present
action. except the parties to the action, and their officers of
counsel (f)That after depositions are sealed, they shall be
PURPOSES OF DISCOVERY opened only by order of the court (g)That secret
processes, developments or research need not be
The purposes of resort to discovery are: (a) It is a device disclosed (h)That parties shall simultaneously file specified
to narrow down / clarify the basic issues between the documents or information enclosed in sealed envelopes to
parties (b) It is a device to ascertain the facts relative to be opened as directed by the Court (i) That court may
the issues make any order which justice requires to protect the party

WHAT ARE THE MODES OF DISCOVERY


334 Supra, Rule 23
335 Supra, Rule 24
336 Supra, Rule 25
337 Supra, Rule 26
330 Supra, Section 7, Rule 21 338 Supra, Rule 27
331 Supra, Section 8, Rule 21 339 Supra, Rule 28
332 Supra, Section 9, Rule 21 340 Supra, Section 1, Rule 23
333 Supra, Section 1, Rule 22 341 Supra, Section 2, Rule 23

31
or witnesses from annoyance embarrassment or
oppression.342 KINDS OF DEPOSITIONS – HOW TAKEN

2.During the taking of the deposition, it shall be taken A. DEPOSITION UPON ORAL EXAMINATION
subject to the following limitations:
1.Giving of reasonable notice in writing to every other
2.1 During the taking of the deposition, on motion or party to the action, which must state the time / place of the
petition of any party or the deponent upon showing that taking of the deposition and the name and address of the
the examination is being conducted in BAD FAITH on IN person to be examined, if known, IF NOT KNOWN, a
SUCH MANNER as UNREASONABLY to ANNOY general description sufficient to identify him or the
EMBARRASS OR OPPRESS the DEPONENT, or a party particular class or group to which he belongs. ON
– the COURT where the action is pending or the RTC of MOTION OF PARTY UPON WHOM NOTICE IS SERVED,
the place where deposition is being taken may ORDER the COURT, for CAUSE, may ENLARGE OR SHORTEN
the officer taking the examination to cease forthwith – or THE TIME.347
limit the scope as provided in Section 16.
2.Officer taking the deposition shall put the witness under
2.2 If terminated, it shall be resumed thereafter only oath and shall personally, or by someone acting under his
upon order of the Court in which the action is pending. direction and his presence record the testimony of the
UPON DEMAND of the OBJECTING PARTY/DEPONENT, witness stenographically unless the parties agree
the taking shall be suspended for the time necessary to otherwise.
make a notice for an order. In granting/refusing such order,
the court may impose upon either party or upon the All objections as to QUALIFICATION OR OFFICER
witness the requirement to pay costs/expenses as the TAKING DEPOSITION, MANNER OF TAKING EVIDENCE
Court may deem reasonable.343 PRESENTED, CONDUCT OF PARTIES OR ANY OTHER
OBJECTION – shall be NOTED – ANY EVIDENCE
BEFORE WHOM MAY DEPOSITIONS BE TAKEN OBJECTED TO SHALL BE TAKEN SUBJECT TO
OBJECTIONS. PARTIES SERVED WITH NOTICE, IN
1.WITHIN THE PHILIPPINES: a judge, notary public, or LIEU OF PARTICIPATING IN THE TAKING OF
person authorized to administer oaths, at any time or place DEPOSITION, may submit written interrogatories – which
if so stipulated in writing by the parties.344 the officer taking the deposition shall propound to the
witness and record the answers VERBATIM.348
2.IN FOREIGN COUNTRIES: On notice before a
secretary of the embassy or legation or the diplomatic 3.After the taking of the deposition – and testimony is
minister and his staff, consul general, consul, vice consul transcribed – it is submitted to the witness for examination
or consular agent of the Republic of the Philippines, or and shall be read to or by him, unless such is waived by
before such person or officer as may be appointed by the witness and the parties. IF THERE ARE CHANGES –
commission or letters rogatory.345 IN FORM / SUBSTANCE – which the witness desires to
make – it shall be entered upon the deposition by the
2.1 A Commission is an instrument issued by a court officer with a statement as to the reason given by the
of justice or other competent tribunal to authorize persons witness as why they are being made. The deposition is
to take a deposition or do any other act by authority of then SIGNED BY THE WITNESS, unless the parties by
such court or tribunal. A Commission is addressed to stipulation waive the signing, or the witness is ill OR
officers designated by name or descriptive title. cannot be found OR refuses to sign.

2.2 Letters Rogatory is an instrument sent in the name IF NOT SIGNED, officer shall sign it and state on the
and by authority of a judge or court to another, requesting record why it was not signed together with reasons. If
the latter to cause to be examined, upon interrogatories there is refusal to sign, the EFFECT is that the deposition
filed in a case pending before the former, a witness who is then may be used fully as though signed, unless on a
within the jurisdiction of the judge or court to whom such motion to suppress under Sec 29 (f) {errors or irregularities
letters are addressed. Letters Rogatory are addressed to a in preparation}, the Court holds that the reason for refusal
judicial authority in a foreign country AND may be applied to sign require rejection of the deposition in whole or in
for and issued only after a commission has been returned part.349
unexecuted.
4.Once signed, the officer shall certify on the deposition
WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS that the witness was duly sworn to by him and that the
deposition is a true record of the testimony of the witness.
Person who is a relative within the 6th degree of He shall then securely seal the deposition in an envelope
consanguinity / affinity OR employee or counsel of any of endorsed with the title of the action and marked
the parties OR relative within the same degree or “deposition of _______” to be promptly FILED WITH THE
employee of counsel OR is financially interested in the COURT WHERE ACTION IS PENDING – OR SENT BY
action.346 REGISTERED MAIL TO THE CLERK THEREOF FOR
FILING.350
342 Supra, Section 16, Rule 23
343 Supra, Section 18, Rule 23 347 Supra, Section 15, Rule 23
344 Supra, Sections 10 and 14, Rule 23 348 Supra, Section 17, Rule 23
345 Supra, Sections 11, 12, and 14, Rule 23 349 Supra, Section 19, Rule 23
346 Supra, Section 13, Rule 23 350 Supra, Section 20, Rule 23

32
5.Notice of filing shall then promptly be given by the officer An interrogatory under Rule 25 is allowed UNDER THE
to all parties351 and upon payment of reasonable charges, SAME CONDITIONS AS SPECIFIED IN SECTION 1,
he is to furnish copies of the deposition to any party or the RULE 23 as to when it is to be had and is for the purpose
deponent. 352 of enabling any party desiring to elicit material facts /
relevant facts from any ADVERSE PARTY by the filing and
EFFECT OF NON-APPEARANCE service upon the latter of a written interrogatory to be
answered by the party served or if party is public / private
1.IF PARTY GIVING NOTICE FAILS TO APPEAR AND corporation or a partnership / association by any officer
ANOTHER ATTENDS IN PERSON OR BY COUNSEL, thereof competent to testify in its behalf.358
the Court may order the party giving notice to pay
reasonable expenses incurred to attend, including HOW AND WHEN ANSWERED
reasonable attorney’s fees. 353
Responses, which must be signed and sworn to, must be
2.IF PARTY GIVING NOTICE DOES NOT SERVE filed within 15 days from service, unless the Court on
SUBPOENA AND WITNESS DOES NOT APPEAR, Court motion and for good cause shown extends or shortens the
can order party giving notice to pay reasonable expenses time359
for attendance plus attorney’s fees to a party who appears
in person or by counsel354 (Section 24) CAN THEY BE OBJECTED TO

B. DEPOSITION UPON WRITTEN Yes, objections may be presented to the court within 10
INTERROGATORIES day after service of notice as in the case of a motion,
answers shall then be deferred until objections are
1.Party desiring to take the deposition upon WRITTEN resolved, which shall be as early a time as is
INTERROGATORIES shall serve them upon every other practicable.360
party with notice stating: (1) name and address of the
person who will answer them (2) descriptive title and HOW MANY INTERROGATORIES
address of the person who will take the deposition (3)
Within 10 days, party served may serve cross- No party may, without leave of court, serve more than one
interrogatories on the party proposing to take the set of interrogatories to be answered by the same party. 361
deposition (4) Within 5 days thereafter, the latter may
serve re-direct INTERROGATORIES upon the party SCOPE AND USE
serving cross–interrogatories (5) within 3 days after being
served of re-direct INTERROGATORIES, a party may It may relate to any matters that can be inquired into under
serve re-cross interrogatories upon party proposing to take Section 2, Rule 23 and the answers used for the same
deposition.355 purpose provided for by Section 4, Rule 23362

2.A copy of the notice and copies of all interrogatories EFFECT OF FAILURE TO SERVE WRITTEN
shall be delivered by the party taking the deposition to INTERROGATORIES
officer designated in the notice, who shall proceed
promptly in the manner provided by Sections 17, 19 and Unless thereafter allowed by the court for good cause
20 to take the testimony of the witness in response to the shown and to prevent failure of justice, a party not served
interrogatories and to prepare, certify, and file / mail the with written interrogatories may not be compelled by the
deposition attaching copies of the notice and adverse party to give testimony in open court or give a
interrogatories.356 deposition pending appeal.363

3.Officer must promptly give notice of filing / and may FURTHER DISTINGUISHING DEPOSITION UPON
furnish copies to parties and deponent upon payment of WRITTEN INTERROGATORIES AND WRITTEN
reasonable charges.357 INTERROGATORIES

NOTE: that Sections 15, 16 and 18 are applicable and that 1.Any person, party or not can be required to or compelled
by motion, it can be asked that the deposition be upon oral to give a deposition upon written interrogatories, while only
examination. the adverse party may be compelled to answer a written
interrogatory.
4.SEE: Gerochi vs. Dept of Energy GR 159796, April 5,
2005 2.A deposition upon written interrogatory is taken before
an officer, while an adverse party without appearing before
DISTINGUISHED FROM INTERROGATORIES TO an officer shall answer them in writing and under oath.
PARTIES UNDER RULE 25

351 Supra, Section 21, Rule 23


352 Supra, Section 22, Rule 23 358 Supra, Section 1, Rule 25
353 Supra, Section 23, Rule 23 359 Supra, Section 2, Rule 25
354 Supra, Section 24, Rule 23 360 Supra, Section 3, Rule 25
355 Supra, Section 25, Rule 23 361 Supra, Section 4, Rule 25
356 Supra, Section 26, Rule 23 362 Supra, Section 5, Rule 25
357 Supra, Section 27, Rule 23 363 Supra, Section 6, Rule 25

33
C. DEPOSITIONS BEFORE ACTION OR PENDING petition subsequently brought in accordance with Sections
APPEAL UNDER RULE 24 (IN PERPETUAM REI 4 and 5 of Rule 23.369
MEMORIAM)
WHEN DEPOSITIONS PENDING APPEAL ARE TAKEN
HOW IS A DEPOSITION BEFORE ACTION OBTAINED
If appeal is taken from a judgment of a Court including the
By the filing of a verified petition by a person desiring to CA in proper cases or before the taking of an appeal if the
perpetuate his testimony or that of any person in relation time therefore has not yet expired. The Court in which
to any matter cognizable in any court in the Philippines in judgment was rendered may allow taking of depositions of
the Court in the place of residence of the expected witnesses to perpetuate their testimony for use in the
adverse party. 364 event of further proceedings in the said Court.

1.The CONTENTS OF THE PETITION which shall be HOW TAKEN


entitled in the name of the petitioner and should show: (a)
That petitioner expects to be a party to an action in a Court Party makes a motion in said Court for leave to take
in the Philippines but is presently unable to bring it or depositions – upon the said notice and service thereof as if
cause it to be brought (b) The subject matter of the the action was pending therein – MOTION states (1) name
expected action and his interest therein (c) The facts that and addresses of persons to be examined and substance
he desires to establish by the proposed testimony and his of testimony to be elicited (2) reasons for perpetuating
reasons for desiring to perpetuate it (d) The names or testimony.
description of the person he expects will be adverse
parties and their addresses so far as known (e) The If Court finds that it is proper to avoid failure or delay of
names and addresses of the persons to be examined and justice – it may allow the depositions to be taken and used
the substance of the testimony which he expects to elicit in the same manner and under same conditions as
from each AND SHALL THEN ASK FOR AN ORDER prescribed for depositions in pending actions.370
authorizing the petitioner to take the depositions of the
persons to be examined named in the petition for the
purpose of perpetuating their testimony.365 EFFECT OF TAKING DEPOSITIONS

2.To Perpetuate means to preserve or make available A party shall not be deemed to make a person his own
testimony for later use at a trial by means of deposition. witness by taking his deposition.371

WHAT IS DONE AFTER PETITION IS COMPLETED EFFECT OF USING DEPOSITIONS

Petitioner shall serve a notice upon each person named in If introduced in evidence in whole/part for any purpose
the petition as an expected adverse party, together with a OTHER THAN contradicting or impeaching the deponent,
copy of the petition stating that: he will apply to the Court such makes the deponent the witness of the party
at a time and place stated therein, for the order described introducing the deposition BUT it does not apply to the use
in the petition. At least 20 days before the date of the of an adverse party of a deposition as described in Par. (b)
hearing, the Court shall cause notice thereof to be served Section 4 of Rule 23.372
on the parties and prospective deponents in the manner
provided for service of summons.366 USE OF DEPOSITION

WHAT WILL OCCUR THEREAFTER When can it be used? – at the trial, upon the hearing of a
motion or an interlocutory proceeding – ANY PART or ALL
If the Court is satisfied that the perpetuation of testimony OF A DEPOSITION, so far as admissible under the rules
may prevent a failure of justice or delay of justice, it shall of evidence may be used AGAINST any party who was
make an order designating or describing the persons present, or represented at the taking or had due notice
whose depositions are to be taken, specifying the subject thereof, in ACCORDANCE WITH THE FOLLOWING:
and whether it will be upon oral execution or written
interrogatories under Rule 23.367For purposes of applying a.May be used by any party for the purpose of
Rule 23, references to the court in which the action is contradicting or impeaching the testimony of deponent as
pending shall be deemed to refer to thecourt in which a witness
petition for such deposition is filed. 368
b.Deposition of a party or any one who at the time of the
USE OF DEPOSITION taking was an officer, director, or managing agent of a
public/private corporation partnership/association which is
Deposition taken under the Rule or although not so taken, a party may be used by an adverse party for any purpose
it would be admissible in evidence, it may be used in any
action involving the same subject matter contained in c. Deposition of a witness, party or not, may be used by
any party for any purpose if the court finds that: (1)
witness is dead (2)witness resides more than 100
364 Supra, Section 1, Rule 24
365 Supra, Section 2, Rule 24 369 Supra, Section 6, Rule 24
366 Supra, Section 3, Rule 24 370 Supra, Section 7, Rule 24
367 Supra, Section 4, Rule 24 371 Supra, Section 7, Rule 23
368 Supra, Section 5, Rule 24 372 Supra, Section 8, Rule 23

34
kilometers from the place of trial/hearing or is out of the cross or other interrogatories and within 3 days after
Philippines UNLESS, it appears that his absence is service of the last interrogatory authorized.
procured by the party offering the deposition (3) witness is
unable to attend/testify because of age, sickness, infirmity 6.As to manner of preparation – objections as to the
or imprisonment (4) party offering the deposition has been manner in which the testimony is transcribed, or the
unable to procure the attendance of the witness by deposition is prepared, signed certified, sealed, indorsed,
subpoena (5) upon application and notice, exceptional transmitted, filed, or otherwise dealt with by the officer are
circumstances exist as to make it desirable in the interest WAIVED, unless a motion to suppress the deposition or
of justice and with due regard to the importance of part thereof is made with reasonable promptness after
presenting the testimony of witness in open court, to allow such defect is, or with due diligence, might have been
the deposition to be used. ascertained.374

d.If only a part of the deposition is offered in evidence by a HOW IS A DEPOSITION ACTUALLY USED AND ONCE A
party, the adverse party may require him to introduce all of DEPOSITION HAS BEEN USED, WHAT CAN ADVERSE/
which is relevant to the part introduced, and any party may OTHER PARTIES DO
introduce the other parts.373
1. Generally, the deponent is called to testify. Hence
WHEN DOES THE DEPOSITION BECOME EVIDENCE he may be examined/cross-examined as permitted at the
OR WHEN CAN IT BE USED AS EVIDENCE trial under Sections 3 to 18, Rule 132.375

1.If the deponent is a party, the opposing party can use it 2. At the trial or hearing, any party may rebut any
to prove his claim or defense. It may also be used to relevant evidence contained in a deposition whether
impeach or contradict the party deponent if he testifies. introduced by him or by any other party. 376 This is called
rebutting a deposition.
2.If the deponent is only a witness, his deposition can only
be used to impeach/contradict him if he testifies BUT if IS USE OF THE DEPOSITION LIMITED TO THE
Paragraph (c ) of Section 4 applies, it can be used for any ACTION/PENDING ACTION WHEN IT WAS TAKEN
purpose.
WHEN DEPOSITIONS ARE PRESENTED – CAN THEY No, because substitution of parties does not affect the
BE OBJECTED TO- WHEN right to use depositions previously taken, when the action
is DISMISSED and another action involving the same
Subject to the provisions of Section 29, OBJECTION may subject is afterward brought between the same parties or
be made at the TRIAL or HEARING to receive in evidence their representatives or successors in interest, all
any deposition or part thereof for any reason which would depositions lawfully taken and duly filed in the former
require the exclusion of the evidence if the witness were action may be used in the latter as if originally taken
then present and testifying. therefor.377

1.As to notice – are waived unless written objection is RULE 26 – REQUESTS FOR ADMISSIONS
promptly served upon the party giving the notice
WHAT IS A REQUEST FOR ADMISSION
2.As to disqualification of the officer is waived unless
make before the taking of the deposition or as soon It is a written request for the (1) admission of the
thereafter as the disqualification becomes known or could genuiness of any material and relevant document
be discovered with reasonable diligence. described in and exhibited with the request or (2) the truth
of any material or relevant matter of fact set forth in the
3.As to competency relevancy of evidence – objections as request. A party may file and serve a request for admission
to competency of the witness or competence, relevancy or upon any other party at any time after the issues have
materiality of the evidence/testimony – are not waived by been joined.378
the failure to make them before or during the taking of the
deposition – UNLESS the ground of the objection is one EFFECT OF FILING AND SERVICE UPON ANY OTHER
which a right have been OBVIATED or REMOVED IF PARTY
PRESENTED AT THAT TIME
Each of the matters of which an admission is requested
4.As to oral examination and other particulars – Errors and shall be deemed admitted UNLESS, within a period
irregularities occurring at the oral examination in the designated in the request, which shall not be less than 15
manner of taking, the form of the questions and answers, days after service thereof or such period which the Court
in the oath/affirmation, or the conduct of the parties and will allow on motion, the party served files and serves
errors of any kind which might be obviated, removed or upon the requesting party a sworn statement, either
cured it promptly, prosecuted, are WAIVED, unless denying specifically the matters is setting forth in detail the
reasonable objection thereto is made at the taking of the reason why he cannot truthfully either admit / deny.
deposition.

5.As to from of written interrogatories – objections are 374 Supra, Section 29, Rule 23
waived unless served in writing upon party propounding 375 Supra, Section 3, Rule 23
them within the time allowed for the serving of succeeding 376 Supra, Section 9, Rule 23
377 Supra, Section 5, Rule 23
373 Supra, Section 4, Rule 23 378 Supra, Section 1, Rule 26

35
Objections if any shall be submitted to the Court within the order him to submit to physical / mental examination by a
period for complying and prior to filing of the Sworn physician.384
Statement – compliance is then deferred until objections
are resolved which should be done as early as 1.It can be ordered ONLY upon motion for good cause
practicable.379 shown, with NOTICE to the party to be examined and to all
other parties, specifying the time, place, manner, condition
EFFECT OF ADMISSIONS and scope of the examination and person/s by whom it is
to be made.385
It is for the purpose of the pending action only and shall
not constitute an admission by him for any purpose or 2.ONCE EXAMINATION IS COMPLETED, the party
used against him in any other proceeding380 examined may request that a detailed written report of the
THOUGH any admission, express or implied may be examining physician setting forth his findings /
allowed by the court to be withdrawn or amended upon conclusions.
such terms as may be just.381
2.1 If requested and delivered, the party causing
EFFECT OF FAILURE TO SERVE examination to be made is entitled to request and receive
from examined party a like report of the same mental /
Unless otherwise allowed by the Court for good cause and physical examination / condition PREVIOUSLY OR
to prevent failure of justice, a party who fails to serve a THEREAFTER MADE.
request for admission of material / relevant facts at issue
on the adverse party, which are or ought to be within the 2.2 If request is refused, the court on motion may
latter’s personal knowledge, shall not be permitted to order delivery by the party examined on such terms as are
present evidence on such facts.382 just. If the physician fails / refuses to make such report, his
testimony may be excluded if his testimony is offered at
trial. 386
RULE 27 – PRODUCTION OR INSPECTION OF
DOCUMENTS ON THINGS 2.3 NOTE a WAIVER OF PRIVILEGE that is caused
by requesting and obtaining a report of the examination
HOW ordered or by taking the deposition of the examiner, party
examined WAIVES ANY PRIVILEGE he may have in that
On motion of any party showing GOOD CAUSE, the action or any other involving the same controversy
COURT where the action is pending MAY ORDER, regarding the testimony of every other person who has
specifying the time, place and manner AND prescribing examined or may thereafter examine him in respect of the
such terms and conditions as are just: same mental / physical examination.387 This refers
primarily to the privilege between doctor and patient.
1.Any party to produce and permit the inspection, copying,
photographing, by or on behalf of a having party of any RULE 29 – REFUSAL TO COMPLY WITH MODES OF
designated DOCUMENT, PAPERS, BOOKS, ACCOUNTS, DISCOVERY
LETTERS, PHOTOGRAPHS, OBJECTS OR TANGIBLE
THINGS – NOT PRIVILEGED – which CONSTITUTE OR 1. If he refuses to answer upon being directed to do
CONTAIN EVIDENCE MATERIAL TO ANY MATTER so or refuses to be sworn, it will constitute CONTEMPT
INVOLVED IN THE ACTION which are in his possession OF COURT. A citation in contempt shall ensue after the
and control, OR following steps have been followed or observed:

2.Permit entry upon designated land or other property in a.If the party/deponent refuses to answer any question
his possession / control for the purpose of INSPECTING, upon oral examination, the deposition may be completed
MEASURING, SURVEYING, TAKING PHOTOGRAPHS of on other matters or adjourned as the proponent may
the property or any designated RELEVANT OBJECT or prefer.
OPERATION thereon.383
b.The proponent may then apply for an order to compel an
RESORTED TO DETERMINE CONTENTS, STATUS OR answer in the proper court where the deposition is being
PRESERVATION OF THE SAME. taken. This is also applicable to interrogatories.

c. If granted, the court can order that answer be made and


RULE 28 – PHYSICAL / MENTAL EXAMINATION OF if it finds that refusal is without substantial justification – it
PERSONS may impose upon deponent / counsel advising that no
answer be given or both – reasonable expenses and
WHEN AVAILED OF attorney’s fees in obtaining the order. If denied and the
court finds application was filed without substantial
In an action in which the MENTAL / PHYSICAL condition justification proponent / counsel advising application or
of a party is in controversy, a court in its discretion, can both may in the same manner be sanctioned.388

379 Supra, Section 2, Rule 26 384 Supra, Section 1, Rule 28


380 Supra, Section 3, Rule 26 385 Supra, Section 2, Rule 28
381 Supra, Section 4, Rule 26 386 Supra, Section 3, Rule 28
382 Supra, Section 5, Rule 26 387 Supra, Section 4, Rule 28
383 Supra, Section 1, Rule 27 388 Supra, Sections 1 and 2, Rule 29

36
each adjournment, nor more than three months in all,
2. Other consequences – (applicable to Sec 1, Rule except when authorized in writing by the Court
29, Rule 27 and Rule 28) the Court may issue an: Administrator of the Supreme Court.394

a.order that the matters regarding which the questions are IF MOTION TO POSTPONE IS DUE TO ABSENCE OF
asked, character / description of thing or land / contents of EVIDENCE
a paper or physical / mental condition of a party shall be
taken to be established in accordance with the claim of the Can only be granted upon affidavit showing the
party obtaining the order. materiality / relevancy of the evidence and that due
diligence has been used to procure it, BUT, if the adverse
b.order refusing to allow the disobedient party to support / party admits the facts to be given in evidence, or even if
oppose designated claims / defenses – or prohibiting him he objects or reserves the right to object to their
from introducing in evidence the designated things / admissibility, the trial shall not be postponed.395
documents or items of testimony or from introducing
evidence of physical / mental condition. IF DUE TO ILLNESS OF PARTY OR COUNSEL

c. order striking out pleadings or parts thereof or staying May be granted, if it appears upon affidavit or sworn
proceedings until the order is obeyed, dismissing the certification that the presence of party / counsel at the trial
action or proceeding or any part thereof, or rendering is indispensable and that character of illness is such as to
judgment by default against the disobedient party. render non-appearance excusable.396

d.In lieu or in addition to orders, the disobedient party can WHAT IS THE ORDER OF TRIAL
be ordered arrested except in relation to a physical /
mental examination.389 Subject to Section 2, Rule 31 on separate trials and unless
the court orders for special reasons, it shall be limited to
OTHER SANCTIONS the issues stated in the pre-trial order and shall proceed as
follows:
1.Expenses on refusal to admit – if requested party serves
a sworn denial and party serving request proves 1.Plaintiff adduces evidence in support of his complaint
genuineness / truth, he may apply for an order directing 2.Defendant adduces evidence in support of his defense,
the requested party to pay expenses incurred in making counterclaim, crossclaim and 3rd party complaint
proof plus attorney’s fees. Order is issued except if court 3.Third party defendant, if any, shall adduce evidence of
finds good reasons for denial or admissions were of no his defense, counterclaim, crossclaim and 4 th party
substantial importance. 390 complaint.
4.Fourth party, and so forth, if any, shall adduce evidence
2.Failure of a party to willfully appear before the officer of the material facts pleaded by them.
taking the deposition, after being served with a proper 5.Parties against whom any counterclaim/crossclaim has
notice, or fails to serve answers to written interrogatories been pleaded shall adduce evidence in support of their
properly served, court may on motion and notice: (a)Strike defense, in the order prescribed by the Court.
out all or any part of the pleading of that party (b) Dismiss 6.The parties may then respectively adduce rebutting
the action / proceeding / part thereof (c) Enter judgment by evidence, unless the Court, for good reasons and in the
default against that party, (d) and ,in its discretion, order furtherance of justice, permits them to adduce evidence
payment of reasonable expenses and attorney’s fees 391 upon their original case.
BUT no expenses or fees are to be assessed against the 7.Upon admission of the evidence, the case shall be
Republic of the Philippines. 392 deemed submitted for decision, unless the court directs
the parties to argue or submit memoranda or any further
RULE 30 – TRIAL pleadings.

NOTICE OF TRIAL If several defendants or 3rd party defendants and so forth,


having separate defenses appear by different counsel, the
Upon entry of a case in the trial calendar – the clerk shall court shall determine the relative order of presentation of
notify the parties of the date of the trial in such manner as their evidence.397
to ensure receipt of the notice at least 5 days before such
date.393
MAY THERE BE AN AGREEMENT UPON THE FACTS
MAY TRIAL BE POSTPONED / ADJOURNED AND SUBMISSION OF THE CASE FOR JUDGMENT
WITHOUT INTRODUCTION OF EVIDENCE
Courts may adjourn a trial from day to day, and to any
stated time – as the expeditious and convenient Yes, provided it be in writing. If the parties agree only on
transaction of business may require – but it shall have no some facts, trial shall be held as to the disputed facts 398
power to adjourn for a longer period than one month for BUT, no judgment based on stipulation of facts is allowed

389 Supra, Section 3, Rule 29 394 Supra, Section 2, Rule 30


390 Supra, Section 4, Rule 29 395 Supra, Section 3, Rule 30
391 Supra, Section 5, Rule 29 396 Supra, Section 4, Rule 30
392 Supra, Section 6, Rule 29 397 Supra, Section 5, Rule 30
393 Supra, Section 1, Rule 30 398 Supra, Section 6, Rule 30

37
in legal separation, annulment of marriage and declaration action between the same parties, the remedy is dismissal
of nullity. NOTE: that in the same cases, neither is there on litis pendentia, not consolidation.
judgment by default, judgment on the pleadings, summary
judgment, judgment upon confession, judgment upon WHEN CAN SEPARATION TAKE PLACE AND WHAT
compromise, judgment based on stipulation of facts. DOES IT COVER

WHAT ARE TO BE MADE OF RECORD Covers any claim, cross-claim, counterclaim or third party
claim or any separate issue or of any number of claims,
All proceedings, including any statement made by the cross-claims, counter claims, third party complaints, or
judge with reference to the case, or to any of the parties, issues in furtherance of convenience or to avoid
witnesses or counsel shall be made of record in the prejudice.405
stenographic notes.399
RULE 32 – TRIAL BY COMMISSIONER
WHO IS TO RECEIVE EVIDENCE
WHEN RESORTED TO
The judge is required to personally receive the evidence.
But in default / ex-parte or when parties agree in writing it Trial by commissioners may be resorted to upon order of
may be delegated to the clerk of court who is member of the court, which will then refer any or all issues when:
the bar though he has no power to resolve objections to (a)Parties agree in writing and the commissioner may
any question or admission of exhibits . Such shall be either be agreed upon or appointed by the Court (b) When
resolved by the court upon submission of his report and parties do not consent, on court’s own motion or upon
transcripts within 10 days from termination of the application of either party, if may be directed in the
hearing.400 following: (1) Trial of an issue of fact requires
examination of a long account (2) The taking of an
CAN ACTIONS BE SUSPENDED account is necessary for the information of the court
before judgment or for carrying judgment / or order into
Actions may be suspended as governed by the provisions effect (3)A question of fact, other than upon the pleadings
of the Civil Code401: (a)if willingness to discuss a arises upon motion or otherwise, in any stage of the case,
compromise is expressed by one or both parties (b)if it or for carrying a judgment or order into effect.406
appears that one of the parties, before the commencement
of an action / proceeding, offered to discuss a possible 1.The term commissioner may include a referee, an
compromise but the other party refused the offer. 402 auditor or examiner407

RULE 31 – CONSOLIDATION OR SEVERANCE 2.A commissioner is designated or authorized by an


ORDER OF REFERENCE– which will specify or limit his
WHEN CAN CONSOLIDATION TAKE PLACE? powers, direct him to report only on or upon particular
issues or do or perform particular acts, receive or report
When actions involving a common question of law or fact evidence only and fix date for beginning / closing hearings
are pending before the court, it may order joint hearing or and for the filing of the report.
trial of any or all the matters in issue in the actions, it may
order all actions consolidated. Then it may make such 2.1 He shall then have and exercise the power to:
orders concerning proceedings therein as may tend to (a)Regulate the proceeding before him (b)Do all acts and
avoid unnecessary costs / delay403 take all measures necessary or proper for the efficient
performance of his duties upon the order (c)Issue
MAY THERE BE CONSOLIDATION ALTHOUGH subpoenas (d) Swear witnesses (e)Unless otherwise
ACTIONS ARE PENDING IN DIFFERENT COURTS provided, rule upon the admissibility of evidence408
Yes, involving the consolidation of civil action WITH
criminal action, if filed before criminal action and trial has 3.THE TRIAL / HEARING SHALL PROCEED IN ALL
not yet commenced.404 RESPECTS AS IT WOULD BE HELD IN COURT.

PURPOSE OF ALLOWING CONSOLIDATION PROCEDURE

The purpose of allowing consolidation is to avoid 1.Commissioner takes oath and be sworn to a faithful and
multiplicity of suits, guard against oppression or abuse, honest performance of his duties409
prevent delay, clearing of dockets, simplify the work of trial
court, save unnecessary expenses / costs. 2.Upon receipt of the Order of Reference, and unless
otherwise stipulated he shall forthwith set a time and place
1.NOTE though that if actions involve a common question for the first meeting of the parties and counsel within 10
of law or fact because they arise from a single cause of days after the date of the order of reference, and shall
notify parties / counsel410

399 Supra, Section 7, Rule 30 405 Supra, Section 2, Rule 31


400 Supra, Section 9, Rule 30 406 Supra, Section 1, Rule 32
401 Supra, Section 8, Rule 30 407 Supra, Section 2, Rule 32
402 Civil Code, Article 2030 408 Supra, Section 3, Rule 32
403 Supra, Section 1, Rule 31 409 Supra, Section 4, Rule 32
404 Section 1, Rule 111 of the Rules on Criminal Procedure 410 Supra, Section 5, Rule 32

38
Reference to commissioners is required in the following
3.If parties / counsel fail to appear, he may proceed ex- cases: (a)Expropriation under Rule 67 to determine just
parte or in his discretion, adjourn the proceedings, giving compensation (b)Partition under Rule 69, when parties
notice to the absent party or counsel of the adjournment 411 cannot agree as to the manner of partition.

4.He shall avoid delay as he is duty bound to proceed with RULE 33 – DEMURRER TO THE EVIDENCE
all reasonable diligence. Either party on notice to other
parties and the commissioner may apply for a court order WHO FILES AND WHEN FILED
to expedite proceedings / report412
The defendant is the party who may move for the
5.If witness refuses to obey a subpoena or give evidence. dismissal of the action after presentation by the plaintiff of
It shall constitute contempt of the appointing court 413 evidence ON THE GROUND that upon the facts and the
law, plaintiff has shown no right to relief.420
6.Upon completion of trial / hearing / proceeding – he shall
file with the court has report in writing upon the matters EFFECTS OF FILING AND RESOLUTION
submitted to him by the order of reference. When powers
are not specified or limited, he shall set forth his findings of 1.If granted, the action is dismissed, BUT if appealed and
fact and conclusions of law in his report. He shall also reversed, he loses his right to prevent evidence and
attach all exhibits, affidavits, depositions, paper and judgment is rendered in favor of the plaintiff421
transcripts of the testimonial evidence given414
1.1 An order dismissing a case for insufficiency of
7.Notice is then given by the clerk to the parties of the evidence is a judgment on the merits, it is imperative that it
filing of the report, they shall then be allowed 10 days be a reasoned decision and distinctly stating therein the
within which to signify objections to the findings in the facts and the law on which it is based.422
report, is so desired.
2.If denied, defendant may present his evidence as it
7.1 NOTE: Objections to the report based on grounds does not constitute a waiver of right to do so.
available to the parties during the proceedings before the
commissioner, other than as to the findings / conclusions, 3.It is an error on the part of the Court of Appeals to order
shall not be considered unless made before the REMAND, if dismissal is elevated to it on appeal, it must
commissioner.415 decide on the evidence adduced by the plaintiff.423

8.Upon expiration of the period, the report shall be set for DISTINGUISHED FROM CRIMINAL CASES
hearing, after which the court shall issue an order –
adopting, modifying, or rejecting the report in whole or in (a) In both civil and criminal actions, the basis for both is
part or recommitting it with instructions or requiring the the insufficiency of evidence. (b) In a civil action, dismissal
parties to present further evidence to the commissioner 416 by demurrer is by motion only, while in a criminal action,
dismissal by demurrer is upon the court’s initiative or
9.If the parties stipulate that the commissioner’s findings motion giving the prosecution an opportunity to be
of facts shall be final, only questions of law shall be heard. (c) In a civil action, leave is not required prior to
thereafter considered. 417 filing, while in a criminal action leave may / may not be
obtained. If obtained – no waiver of right to present
9.1 Note that the findings of the commissioner are evidence if denied and if there is no leave, it is a
merely advisory and are not absolutely binding upon the waiver (d) In a civil action, if granted, plaintiff’s remedy is
court.418 appeal, while in a criminal action, if granted, there is no
appeal as such will constitute double jeopardy.
EXPENSES / COMPENSATION
RULE 34 – JUDGMENT ON THE PLEADINGS
They shall be reasonable as warranted by the
circumstances and are to be taxed as costs against the JUDGMENT ON THE PLEADINGS
defeated party or apportioned as justice requires419
Can be had if the ANSWER fails to tender an issue or
WHEN REFERENCE TO COMMISSIONERS IS otherwise admits the material allegations of the complaint
424
REQUIRED BY THE RULES

1.There is no MOTU PROPIO RENDITION OF


JUDGMENT as it is always by motion.
411 Supra, Section 6, Rule 32
412 Supra, Section 8, Rule 32
413 Supra, Section 7, Rule 32
414 Supra, Section 9, Rule 32 420 Supra, Section 1, Rule 33
415 Supra, Section 10, Rule 32 421 Quebral v Court of Appeals, 252 SCRA 353
416 Supra, Section 11, Rule 32 422 Nicos Industrial Corporation v Court of Appeals, 206 SCRA
417 Supra, Section 12, Rule 32 127
418 Eternal Gardens Memorial Park Corporation v Court of 423 Radiowealth Finance Company v Del Rosario, 335 SCRA
Appeals, 282 SCRA 553 288
419 Supra, Section 13, Rule 32 424 Supra, Section 1, Rule 34

39
2.An answer fails to tender an issue when it fails to comply 3.An issue is sham or false if it is not genuine. GENUINE
with the requirements of specific denial or is deemed to means that the issue of fact is one that calls for the
have admitted the allegations in the complaint425 presentation of evidence.429

3.An answer admits the material allegations when it 4.In either case, the motion must be filed along with
expressly confesses the truthfulness thereof or where it supporting affidavits, depositions or admissions.
omits to deal with them all.
5.The PROCEDURE for the filing and resolution of a
4.NOTE that when an answer raises factual issues motion for summary judgment is as follows:
involving damages, it is not proper to render judgment on
the pleadings as presentation of evidence is required.
1.Plaintiff/Defendant serves on the defendant/plaintiff a
WHO MAY MOVE FOR JUDGMENT ON THE copy of the motion at least 10 days before the date of
PLEADINGS hearing specified in the motion.

Only the plaintiff in original complaint, or of the counter- 2.The defendant/plaintiff MAY serve opposing affidavits,
claim, or of the cross claim, or of the third party complaint depositions or admissions at least 3 days before the date
may so move for judgment on the pleadings. of the hearing.

WHEN NOT ALLOWED 3.Court hears the motion.

Judgment on the pleadings is not allowed in cases of: 4.If after hearing, it finds that the motion filed by
(a)Declaration of nullity of marriage (b) Annulment of PLAINTIFF justified, thus there is no genuine issue as to
marriage (c) Legal separation. In these cases, the any material fact, it will render summary judgment for the
plaintiff is required to prove the material facts regardless of plaintiff. If not, it will deny, set the case for pre-trial, then
whether the answer tenders an issue. trial. If filed by the defendant and is justified, the complaint
RULE 35 – SUMMARY JUDGMENT is dismissed, otherwise the case proceeds with the filing of
answer or pre-trial is set and conducted.
WHAT IS SUMMARY JUDGMENT
FORM OF AFFIDAVITS / SUPPORTING DOCUMENTS
Is a devise for weeding out sham claims or defenses at an
early stage of the litigation thereby avoiding the expense / 1.They shall be made on personal knowledge, setting forth
loss of time involved in a trial. Its very object is to separate such facts as would be admissible in evidence and shall
what is formal or pretended in denial or averment from show affirmatively that the affiant is competent to testify to
what is genuine and substantial so that only the latter may the matters stated therein. Certified copies of all papers /
subject a suitor to the burden of trial. parts thereof shall be attached and served therewith. 430

1.This is also known as ACCELERATED JUDGMENT426 2.If affidavits have been determined to the satisfaction of
the court that they are presented in bad faith or solely for
WHO MAY MOVE FOR SUMMARY JUDGMENT AND the purpose of delay, the Court may forthwith order the
WHEN offending party to pay reasonable expenses which may
have been incurred by the other party, including attorney’s
Either plaintiff or defendant may move for a summary fees. It may also find / adjudge, after hearing, that
judgment: attending party / counsel are guilty of contempt. 431

1.If plaintiff or claimant (of original complaint / EFFECT OF THE RENDITION OF SUMMARY
counterclaim / cross-claim), he may file the motion at any JUDGMENT
time after the pleading in answer to his claim has been
filed on the ground that although there is an apparent 1.The aggrieved party may appeal the summary judgment
issue, the same is SHAM / FALSE 427 .Example: Answer as such is final judgment as defined by Section 1, Rule 41.
admits obligation but states that the amount is wrong or
less than that claimed. If plaintiff has proof that there is 2.IF DENIED, it is not appealable as order of denial of
written acknowledgment that as of a date or period prior to motion is interlocutory THOUGH certiorari may lie if the
that of the filing, the defendant was aware of the true rendering of a summary judgment is clear, plain and patent
amount, there can be summary judgment. but the court refuses or declines to render it.

2.If movant is the defending party, he may file the motion WHEN CAN THERE BE A PARTIAL SUMMARY
at any time before or after he files his answer on the JUDGMENT
ground that plaintiff’s claim against him is SHAM or FALSE
428
When the Court finds that a judgment cannot be rendered
upon the whole case or for all the reliefs because there are
controverted facts which require trial. A PARTIAL
425 Supra, Sections 8,9 and 11, Rule 8 SUMMARY JUDGMENT is not appealable and shall be
426 Monterey Foods Corporation v Eserjose, 410 SCRA 627,
Puyat v Zabarte, 352 SCRA 738 429 Excelsa Industries v Court of Appeals, 247 SCRA 560
427 Supra, Section 1, Rule 35 430 Supra, Section 5, Rule 35
428 Supra, Section 2, Rule 35 431 Supra, Section 6, Rule 35

40
taken together with the judgment that a trial court will
render after trial. Thus it cannot be executed.432 2.A MEMORANDUM DECISION is one which adopts by
references findings of facts and conclusions of law
DISTINGUISHED FROM JUDGMENT ON THE contained in the decision of an inferior tribunal. Note that
PLEADINGS this does not violate the rule as to statement of the facts
and law. This kind of a decision can only be rendered by
(a) A Judgment on the Pleadings is available when there is an appellate court.
no genuine issue as answer fails to tender an issue
or otherwise admits material allegations, while Summary 3.A SIN PERJUICIO JUDGMENT is one which is without a
Judgment is available when there is an apparent issue but statement of facts and is to be supplemented later by the
is a sham, fictitious or false (b) A Judgment on the final judgment. Such a judgment is void.
Pleadings is based exclusively on the pleadings (complaint
/ answer), while Summary Judgment is based not only on DUTY OF THE CLERK OF COURT WHEN JUDGMENT
pleadings but also on affidavits, depositions and BECOMES FINAL
admissions, showing that except as to damages there is
no genuine issue (c) A Judgment on the Pleadings can be If no appeal or motion for reconsideration or new trial is
filed only after an answer has been filed, while in brought within the time provided, the judgment / final order
Summary Judgment, there may or may not be an answer shall forthwith be entered by the clerk in the BOOK OF
(d) A Judgment on the Pleadings can only be had by the ENTRIES OF JUDGMENT. The date of finality shall be
plaintiff, while in Summary Judgment, either plaintiff or deemed the date of entry and shall contain the dispositive
defendant may move for it (e) a motion for Judgment on portion and signed by the clerk which a certificate that
the Pleadings is required to be served on adverse such judgment / final order has become final and
party at least 3 days prior to the hearing, while a motion executory.436
for Summary Judgment requires service at least 10 days
prior to the hearing 1.Note that date of entry retroacts to date of finality.
Hence, both occur simultaneously by operation of law.
1.Judgment on the Pleadings is a judgment on facts as
pleaded, Summary Judgment is a judgment as summarily 2.JUDGMENTS THAT ARE FINAL AND EXECUTORY
proven by affidavits, depositions, admissions. If an answer CAN BE CORRECTED but limited only to NUNC PRO
tenders an issue, there can be no Judgment on the TUNC amendments or those that are merely clerical or
Pleadings but there can be Summary Judgment, if issue/s typographical.
is later shown to be false, sham or fictitious.
3.Correction or amendment is also allowed if purpose is to
RULE 36 – JUDGMENTS, FINAL ORDERS, AND ENTRY clarify an ambiguity caused by an omission or mistake,
THEREOF judgment / final order.

REQUISITES OF A JUDGMENT/FINAL ORDER


4.A COMPROMISE after finality of a judgment is allowed.
The requisites of a judgment or final order are: (1) It must The basis of the allowance is the principle of novation,
be in writing (2) It must be personally and directly prepared which is a mode of extinguishing an obligation.437
by the judge (3) It must state clearly and distinctly the facts
and the law on which it is based (4) It must be signed Pet for extraordinary relief- GR 167651, San Pablo vs.
by the judge (5) It must be filed with the clerk of court. 433 marina May 10, 2005

1.NOTE that a judge who has been reassigned can pen a JUDGMENTS MAY BE
decision as long he is still an incumbent judge.434
1.Given for or against one or more several plaintiffs or for
or against one or more several defendants. Courts, when
WHEN IS JUDGMENT RENDERED justice demands require parties on each side to file
adversary proceedings as between themselves to
Ordinarily after trial, except in judgment on the pleadings, determine their ultimate rights / obligations.438
summary judgment, judgment by compromise, judgment
based on stipulation of facts, judgment upon confession, 2.In an action against several defendants, the courts if
order of dismissal in instances when it considered as an proper may render judgment against one or more, leaving
adjudication on the merits, judgment in cases covered by the action to proceed against the others. 439 Example:
the Rules of Summary Procedure. Judgment against a surety for admitted liability.

1.It is the filing of the judgment or final order with the clerk 3.Separate judgments may be rendered when more than
of court that constitutes RENDITION OF JUDGMENT, not one claim for relief is presented, the court at any stage –
the date of the writing of the decision or judgment, nor the upon determination of the issues material to a particular
signing thereof or even promulgation thereof.435 claim and all counter claims arising therefrom – may
render a separate judgment disposing of the claim and
432 Supra, Section 4, Rule 35
433 Supra, Section 1, Rule 36 436 Supra, Section 2, Rule 36
434 ABC Davao Auto Supply v Court of Appeals, GR 113296, 437 Magbanua v. Uy, 458 SCRA 185
January 16, 1998 438 Supra, Section 3, Rule 36
435 Castro v Malazo, 99 SCRA 164 439 Supra, Section 4, Rule 36

41
proceeding with the others. BUT, it may stay execution or
enforcement until rendition of subsequent judgment/s and 2. Newly Discovered Evidence, which the aggrieved
may prescribe such conditions to secure benefit thereof to party could not with reasonable diligence, have discovered
the party in whose favor the judgment is rendered. 440 or produced at the trial and which would probably alter the
Example: It may occur when causes of action have been result.
joined
2.1 Hence, the requisites are: (a)Evidence is
4.Judgment against entity without juridical personality it discovered after trial (b)Such could not have been
shall set forth the individual names / proper names if discovered and produced at the trial with reasonable
known of persons composing it.441 diligence (c) Evidence is material – NOT cumulative,
corroborative, or impeaching, and is of such weight that, if
RULE 37 – NEW TRIAL OR RECONSIDERATION admitted, could probably change the judgment.447

WHEN FILED GROUNDS FOR MOTION FOR RECONSIDERATION

A motion for new trial or reconsideration may be filed The grounds for a motion for reconsideration are: (a)
within the period for taking an appeal.442 Award of excessive damages (b) Insufficiency of
evidence to justify the decision or final order (c) Decision /
GROUNDS FOR A MOTION FOR NEW TRIAL final order is contrary to law

1. Fraud, Accident, Mistake, Excusable Negligence HOW FILED / CONTENTS


which ordinary prudence could not have guarded against
and by reason of which the aggrieved party was probably It shall be made in writing stating the ground/s, written
impaired in his rights. notice of which shall be served by the movant on the
adverse party.
1.1 Fraud should be extrinsic or collateral, which
refers to such acts that prevents a party from having a trial 1.If the Motion for New Trial is based on Fraud, Accident,
/ presenting his case in court. It refers to all kinds of Mistake or Excusable Negligence, it should be supported
deceptions, whether through insidious machination, by affidavits of merit, which may be rebutted by affidavits.
manipulation or concealment or misrepresentation that The requirement of an affidavit is essential because
leads another party to error. 443 Examples are: false obviously a new trial would be a waste of the court’s time if
promise to compromise or connivance of lawyer with the complaint turns out to be groundless or the defense
adverse party. This does not include INTRINSIC FRAUD ineffective.448
or acts of a party at trial that prevents fair determination.
Examples are: perjury, falsification. 2.If based on NEWLY DISCOVERED EVIDENCE it should
be supported by affidavits of the witnesses by whom such
1.2 Accident is a fortuitous event, circumstance, or evidence is expected to be given or by duly authenticated
happening; an event happening without any human documents which are proposed to be introduced as
agency or if happening wholly or partly through human evidence.
agency, is an event which under the circumstances is
unusual or unexpected by the person to whom it 3.If MOTION FOR RECONSIDERATION, it should point
happens.444– sickness of a party, lack of notice – when out specifically the finding / conclusions which are not
sent to other address. supported by the evidence / contrary to law, making
express reference to testimonial / documentary evidence
1.3 Mistake refers to some unintentional act, or provisions alleged to be contrary to such findings or
omission, or error arising from ignorance, surprise, conclusions.
imposition, or misplaced confidence. It pertains generally
to mistake of fact, not of law. 445– failure to answer / act 3.1 IF NOT, the motion is considered a PRO FORMA
because he believed it unnecessary because of a MOTION. It does not toll the reglementary period of
compromise or other document. appeal.449 Note also that such a motion without notice of
hearing and proof of service has the same effect450
1.4 Excusable 446Negligence is an excusable omission
to do something which a reasonable man, guided by those IF A MOTION FOR NEW TRIAL IS FILED, WHAT
considerations which ordinarily regulate the conduct of ENSUES
human affiants, would do; or the reasonable doing of
something which a prudent or reasonable man would not Court may either deny or set aside the judgment or final
do. – failure is really that of the party or counsel – non order and grant a new trial451
submission on time because of distance traveled.

440 Supra, Section 5, Rule 36


441 Supra, Section 6, Rule 36 447 Marikina Valley Development Corporation v Court of
442 Supra, Section 1, Rule 37 Appeals, 294 SCRA 273
443 Maestrado v Court of Appeals, 327 SCRA 678 448 Yap v Tanada, 163 SCRA 464
444 Jarco Marketing v Court of Appeals, 321 SCRA 375 449 Marina Properties Corporation v Court of Appeals, 294
445 Agan v Heirs of Sps. Andres and Diosdada Nueva, 418 SCRA 273, Cledera v Sarmiento, 39 SCRA 552
SCRA 421 450 Firme v Reyes, 92 SCRA 713
446 Mckee v Intermediate Appellate Court, 211 SCRA 517 451 Supra, Section 3, Rule 37

42
1.IF denied, another motion be filed, if it is based on a 2. The petition must be VERIFIED.458
ground NOT EXISTING NOR AVAILABLE when the first
motion has filed.452 Note that a motion for new trial is an 3.The other ways by which a final and executory judgment
omnibus motion, thus it should include all grounds then may be set aside is by Petition for Certiorari under Rule 65
available as those not included are deemed waived. and Rule 46 and by Annulment of Judgment under Rule
47.459
2.IF granted, the effects are (a) original order / judgment is
vacated (b) the action shall stand trial de novo (c) 4.The petition is premised on equity. It should therefore be
recorded evidence, insofar as material or competent to granted only in exceptional cases. Petitioner must be able
establish the issues, shall be used at the new trial without to prove fraud, accident, mistake or excusable negligence
need to retake therein453 and the existence of a good and substantial cause of
action or defense, as the case may be.460
IF MOTION FOR RECONSIDERATION IS FILED – WHAT
ENSUES 5.It cannot be availed of if there is another remedy in
law461and is available only against a final and executory
Court may deny or amend its judgment / final order if it judgment.462
finds that excessive damages are awarded, or that it is
contrary to the evidence or the law454 6.Note though that is the case is covered by the Rules on
Summary Procedure, a petition for relief is a prohibited
1.If denied – no second motion for reconsideration is pleading.463
allowed of the judgment or final order. NOTE THOUGH
that if the subject is not a judgment / final order or is an WHEN AND WHERE FILED
interlocutory order which does not dispose of a case
completely but leaves something more to be done upon its 1.It is to be filed within 60 days after he learns of the
merits, a 2nd motion for reconsideration may be allowed. judgment final order / proceeding but not more than 6
month after such judgment / final order was entered or
2.The filing of a second motion for reconsideration is a such proceeding taken.464
prohibited pleading. Thus it does not toll the running of the
reglementary period of appeal.455 1.1 A few days after expiration of the 60 day period is
not entirely fatal as long as it is still filed within the 6
OTHERS months period.465

1.The periods for resolving the motions are: (a) MTC / 1.2 But if it is a judgment by compromise, the 6
RTC – within 30 days from the time it is submitted for months period runs from date of rendition, because a
resolution456 (b) Court of Appeals- within 60 days after if judgment upon a compromise is immediately executory
declares it submitted for resolution (c) Supreme Court- no and considered to have been entered on the date it was
period is prescribed approved by the trial court.466
1.3 The 6 months period is reckoned from entry of
2.THE DENIAL OF BOTH MOTIONS IS NOT judgment or final order, not from its rendition or
APPEALABLE, IT IS THE JUDGMENT / FINAL ORDER finality467while “from learning” means from notice of
THAT IS APPEALABLE.457 judgment or final order468

RULE 38 – RELIEF FROM JUDGMENT, ORDERS OR 2.It is to be filed in the same case and in the same court
OTHER PROCEEDINGS where the judgment / final order was entered or where
proceeding is taken.
GROUNDS UPON WHICH IT IS TO BE BASED
PROCEDURE
Judgment / final order is entered, or proceeding is
thereafter taken against him through FRAUD, ACCIDENT, 1.Filing of verified petition accompanied by affidavits
MISTAKE, EXCUSABLE NEGLIGENCE. This means that showing FAME and the facts showing the petitioner’s good
the FAILURE TO ACT ON JUDGMENT / FINAL ORDER / and substantial cause of action or defense, as the case
PROCEEDING ARE DUE TO Fraud, Accident, Mistake or may be (grounds constituting his cause of action /
Excusable Negligence. This also applies to a failure to defense)
take an appeal is due.
458 Supra, Sections 1 and 2, Rule 38
1.The object to the petition is that the judgment, order, or 459 Arcelona v Court of Appeals, 280 SCRA 20
proceeding be set aside or that the appeal be given due 460 Torno v Intermediate Appellate Court, 166 SCRA 742
course. 461 Alquesa v Cavada, Jr. 3 SCRA 428
462 Valencia v Court of Appeals, 352 SCRA 72
463 Sta Lucia Realty and Development Corporation v Court of
Appeals, 343 SCRA 214
452 Supra, Section 5, Rule 37 464 Supra, Section 3, Rule 38
453 Supra, Section 6, Rule 37 465 Mago v Court of Appeals, 303 SCRA 600
454 Supra, Section 3, Rule 37 466 Manipor v Ricafort, 407 SCRA 298
455 Hongria v Hongria-Juarde, 425 SCRA 504 467 Bayog v Natino, 258 SCRA 378
456 Supra, Section 4, Rule 37 468 Prudence Realty and Development Corporation v Court of
457 Barnes v Reyes, 411 SCRA 538 Appeals, 231 SCRA 379

43
a.It may be applied for in the court of origin, on motion of
2.Order issued requiring adverse party to answer within 15 judgment obligee – submitting certified true copies of the
days from receipt469 and if warranted a writ of preliminary judgment / final orders / orders sought to be enforced and
Injunction may be issued.470 ENTRY thereof, with notice to the adverse party. There is
no need for return of records.
3.Adverse party answers, but if he does not, he cannot be
declared in default. b.It may also be applied for in the appellate court, on
motion in the same case, when the interest of justice so
4.Court hears and may grant relief if the allegations are requires, direct the court of origin to issue the writ of
true or deny if not true. execution in the event of the refusal of the court of origin to
issue the writ. 474
4.1 If granted, the assailed final order / judgment /
proceeding is set aside and proceedings taken as if a c. A motion is required as there may be questions /
timely motion for new trial has been granted. 471 There are disputes as to finality or amounts to be stated in the writ.
in effect two hearings: the first is as to the merits of the
petition, the second is as the merits of the principal case.
2. DISCRETIONARY is one that is issued, on
4.2 If denied, the order is not appealable 472 but may motion, of the prevailing party for good reasons. This is
be subject of certiorari under Rule 65 also known as EXECUTION PENDING APPEAL /
EXCEPTIONAL EXECUTION 475
5.Court hears the case as if a timely motion for new trial or
reconsideration has granted. If the subject is denial of an a.It is filed in the trial court while it has jurisdiction over
appeal, the lower court shall be required to give due the case and is in possession of either the original record
course to the appeal and elevate the records as if a timely or the record on appeal, as the case may be, at the time of
and proper appeal has been made.473 the filing of the motion. 476 The COURT, may in its
discretion, order execution of judgment / final order even
6.Judgment is rendered and is appealable before the expiration of the period to appeal. If the trial
court has lost jurisdiction, it is to be filed with the appellate
court.
DISTINGUISHED FROM A MOTION FOR NEW TRIAL
a.1 A court LOSES JURISDICTION when there is
They are distinguished as follows: (a) a motion for new perfected appeal and the period to appeal has expired.
trial is filed before judgment becomes final, while a When a record on appeal is required, it loses jurisdiction
petition for relies if filed after a judgment becomes final (b) OVER THE SUBJECT OF THE APPEAL upon perfection
a motion for new trial applies to judgments / final orders, of the appeal and expiration of the period to appeal.
while a petition for relief includes proceedings (c) the
grounds for a motion for new trial includes newly a.2 The REQUISITES OF EXECUTION PENDING
discovered evidence, while a petition for relief is limited to APPEAL are: (1) A motion by the prevailing party with
FAME (d) a motion for new trial is filed within the period notice to the adverse party (2)There must be good reason
for perfecting an appeal, while a petition for relief is filed for execution pending appeal (3)The good reason must be
within 60 days from knowledge but within 6 months stated in a special order. They must constitute superior
from entry of judgment (e) a motion for new trial if denied circumstances demanding urgency which will outweigh the
allows an appeal, while a petition for relief from judgment injury or damage should the losing party secure a reversal
does not allow an appeal (f) a motion for new trial is a of the judgment on appeal. 477EXAMPLES OF GOOD
legal remedy, while a petition for relief is a remedy in REASONS are: deterioration of the goods, prevailing
equity (g) a motion for new trial requires no verification, party’s inability to enjoy the decision, or it’s becoming
while a petition for relief needs to be verified. illusory. In a recent case, OLD AGE was found to be a
good reason.478 NOTE: corporation’s financial distress was
RULE 39 – EXECUTION, SATISFACTION AND EFFECT not considered a good reason.
OF JUDGMENTS
b.DISCRETIONARY EXECUTION BE STAYED upon
TWO KINDS OF EXECUTION approval by the proper court of a sufficient supersedeas
bond filed by the party against whom it is directed –
1. COMPULSORY is one which issues as a matter of CONDITIONED UPON THE PERFORMANCE OF THE
right, or motion, upon a judgment or order that disposes of JUDGMENT / FINAL ORDER allowed to be executed in
the action or proceeding UPON EXPIRATION of the case finally sustained in whole in part. The bond may then
period to appeal, if no appeal is taken therefrom / is be proceeded against on motion with notice to the
perfected. It also issues when appeal is duly perfected and surety.479 BUT, the mere filing of a bond by a successful
finally resolved.

474 Supra, Section 1, Rule 39


475 Supra, Section 2, Rule 39
469 Supra, Section 4, Rule 38 476 Philippine Nails & Wires Corpoation v Malayan Insurance
470 Supra, Section 5, Rule 38 Company, 397 SCRA 431
471 Supra, Section 6, Rule 38 477 Jaca v Davao Lumber Company, 113 SCRA 107
472 Supra, Section 1(b), Rule 41 478 FEBTC v Toh, Sr. 404 SCRA 590
473 Supra, Section 7, Rule 38 479 Supra, Section 3, Rule 39

44
party allow execution pending appeal nor constitute good
ground.480 2.Distinguishing a “final judgment or order” from one which
has become “final and executory”. A final judgment is one
b.1 There are JUDGMENTS NOT STAYED BY that finally disposes of a case, leaving nothing more to be
APPEAL such as judgments in injunction, to include a done by the court in respect thereto. It is an adjudication
judgment dissolving it481 receivership, accounting and on the merits. Once rendered, the task of the court is
support and such other judgments as are now or hereafter ended, as far deciding the controversy or determining
be declared to be immediately executory, shall be rights and liabilities of litigants. Nothing more is to be done
enforceable upon their rendition, they shall not be stayed but to await the parties’ next move, and ultimately, to
by an appeal taken therefrom, unless otherwise ordered cause execution of the judgment once it becomes final and
by the trial court. IF STAYED, it shall be upon such terms executory.489
as to bond or otherwise as may be considered proper for
the security / protection of the rights of the adverse party. HOW CAN A FINAL JUDGMENT / ORDER BE
ON APPEAL THOUGH, the appellate court may make an ENFORCED
order – suspending, modifying, restoring or granting the
injunction, receivership, accounting or award of support. 482 A final and executory judgment may be enforced by (1) By
motion within 5 years from date of entry of judgment (2)
b.2 Judgments in Forcible Entry / Illegal Detainer, if By action after the lapse of 5 yrs from date of entry of
against the defendant are immediately executory. 483 The judgment but before barred by statute of limitations, which
same is true of a judgment by compromise.484 is 10 years. This is known as “action to revive
judgment”.490
b.3 IF THERE ARE SEPARATE JUDGMENTS / OR
SEVERAL OR PARTIAL JUDGMENTS, they may 1.The revived judgment may also be enforced by motion
executed under the same terms and conditions as within 5 yrs from date of entry, and thereafter by action
execution of a judgment / final order pending appeal. 485 before it is barred by the statute of limitations. The
purpose of the action is not to re-examine the issues as
b.4 IF EXECUTION IS GRANTED BUT JUDGMENT / the cause of action is the judgment itself and not the
FINAL ORDER IS REVERSED ON APPEAL totally / merits of the original action.491
partially or annulled, on appeal or otherwise, the trial court,
on motion, may issue orders of reparation or restitution of 2.RECONCILING WITH ACTIONS UPON A JUDGMENT
damages as equity and justice may warrant under the under Article 1144, NCC WHICH PRESCRIBES IN 10
circumstances.486 The phrase “or otherwise” applies to YEARS. The Rules of Court refer to the manner of
reversal after a petition for relief has been granted under execution of the judgment.
Rule 38 and upon a favorable judgment in a petition for
annulment of judgment under Rule 47 3.Note that this is not applicable in land registration cases
or other special proceedings, IN CIVIL ACTIONS ONLY.
b.5 The Court of Appeals has no authority to issue
immediate execution pending appeal of its own decision. 4.There are however instances when judgment / final
Discretionary execution applies only to a judgment or final order can still be enforced by motion even after lapse of 5
order of the trial court.487 years when the delay is caused or occasioned by the
actions of the judgment obligee or incurred for his benefit
WHAT ARE / OR MAY BE THE SUBJECT OF or advantage.492 The liberal construction of the rule
EXECUTION resulting in non inclusion of the period of delay occasioned
by the acts of the judgment oblige in the counting of the
Only judgments or final orders, or one which disposes of period was resorted to as strict adherence to the letter of
the whole subject matter or terminates a particular the law would result in absurdity and manifest injustice. 493
proceeding or action, leaving nothing to be done but to
enforce by execution that which has been determined. AS ISSUANCE, FORM, CONTENTS OF A WRIT OF
OPPOSED TO -Interlocutory orders which cannot be EXECUTION
enforced by execution, one that does not dispose of a
case completely, but leaves something to be done on the A writ of execution shall (1)Issue in the name of RP from
merits. the Court that granted the judgment (2) State the name of
court, case number, title, and dispositive portion (3)
1.An EXCEPTION is a judgment for support pendente Require the sheriff or other proper officer to whom it is
lite.488 directed to enforce the writ according to its terms, in the
manner herein provided: (a) execution be against property
480 International School v. Court of Appeals, 309 SCRA 474 of judgment obligor, to satisfy judgment with interest, out of
481 ITC v PTA, 341 SCRA 90 his real or personal property (b) if against real or personal
482 Supra, Section 4, Rule 39 property, in the hands of personal representatives, heirs,
483 Supra, Section 19, Rule 70 devisees, legatees, tenants trustees of the judgment
484 Litton v Court of Appeals, 263 SCRA 40, AFPMBAI v Court obligor, to satisfy the judgment, with interest, out of such
of Appeals, 311 SCRA 143
485 Supra, Section 2 (b), Rule 39 489 Denso Philippines, Incorporated v IAC, 148 SCRA 280
486 Supra, Section 5, Rule 39 490 Supra, Section 6, Rule 39
487 Heirs of the late Justice JBL Reyes v Demetria, 374 SCRA 491 Laperal v Ocampo, 410 SCRA 339
206 492 Camacho v Court of Appeals, 287 SCRA 611
488 Supra, Section 5, Rule 61 493 Republic v Court of Appeals, 260 SCRA 344

45
property (c) if it be for sale of real / personal property, 3.Garnishment of debts and credits. The officer may levy
to sell it, describing it, and apply the proceeds in on debts due the judgment obligor and other credits.
conformity with the judgment, the material parts of which Examples: bank deposits, financial interests, royalties,
shall be recited in the writ (d) if it be for delivery of the commissions, and other personal property. These are not
possession of real / personal property, to deliver the capable of normal delivery and are in the possession and
possession of the same, describing it, to the party entitled control of third parties.
thereto and to satisfy any costs, damages, rents, profits
covered by the judgment out of the personal property of 3.1 Levy shall be made by serving notice on the
the person against whom it was rendered, and if no person owing such debts or having in his possession or
sufficient personal property be present, out of real property control such credits to which the judgment obligor is
(e) in all cases, the writ shall specifically state the amount entitled.
of interest, costs damages, rents, profits due as of the date
of issuance of the writ aside from the principal obligation 3.2 The garnishee, shall then make a written report to
under judgment494 the court from service of notice stating whether or not the
judgment obligor has sufficient funds or credits to satisfy
the judgment – the garnished amount shall then be
MANNER OF EXECUTION delivered directly to the judgment obligee within 10
working days from service of notice on him requiring
I. FOR SUMS OF MONEY delivery – less lawful fees to be paid directly to the Court.

1.Immediate payment on demand from judgment obligor 3.3 If there are 2 or more garnishees – the judgment
payable in cash of certified bank check payable to the obligor shall have the right to indicate the garnishee/s who
obligee or any form acceptable to him plus lawful fees to shall deliver, otherwise it shall be the choice of the
be turned over to the clerk of court of the court that issued judgment obligee.497 (Section 9)
the writ.
4.Writ is to be returned to the Court issuing it immediately
If judgment obligee is not present to receive the amounts, after judgment has been satisfied in part or in whole. If
it shall be delivered by judgment obligor to the sheriff, not / cannot be satisfied in full within 30 days from receipt
turning in all amounts on the same day to the clerk of court of the writ, the officer shall report to the court and state the
or if not practicable, to deposit in the nearest government reason therefor. Such writ will continue to be in effect
depository bank of Regional Trial Court in the locality, then during the period within which judgment may be enforced
arrangements are then made for remittance to clerk of by motion, the officer shall then make a report to the Court
court issuing the writ for delivery to the judgment obligee. every 30 days on the proceedings taken thereon until the
IN NO CASE SHALL SHERIFF DEMAND PAYMENT BY judgment is satisfied in full or its effectivity expires. The
CHECK PAYABLE TO HIM returns / reports shall set forth the proceedings taken, filed
with the court and copies promptly furnished parties. 498
2.Satisfaction by levy – if not paid in cash, the sheriff shall
levy on the properties of judgment obligor of any kind / II.FOR SPECIFIC ACTS499
nature which may be disposed of for value and not
otherwise exempt from execution – giving obligor the 1.If CONVEYANCE, DELIVERY OF DEEDS OR OTHER
option to immediately choose which property or part SPECIFIC ACTS – party is directed to comply if he fails to
thereof may be levied upon to satisfy judgment. If not – do so within the period specified, court may direct the act
sheriff shall levy on personal properties first, if any, then to be done at the cost of the disobedient party, by some
on real properties if insufficient to answer for judgment. other person appointed by the court and when so done it is
Sheriff can only sell sufficient portion of the personal / real as if done by the disobedient party. If it involves real /
property levied upon when there is more property then is personal property located in the Philippines, the court in
sufficient to satisfy judgment, on so much of it to satisfy lieu of directing a conveyance thereof may by an order
judgment is to be sold. The conduct of the SALE SHALL divest title and vest it in others, which shall have the force
FOLLOW THE PROCEDURE LAID DOWN BY THE and effect of a conveyance executed in due form of law.
RULES TO IMPLEMENT SALE OF PROPERTY.
2.If for SALE OF REAL/PERSONAL PROPERTY – the
2.1 EFFECT OF LEVY. A levy on execution shall property is to be sold, describing it, and apply the
create lien in favor of the judgment obligee over the right, proceeds in conformity with the judgment.
title and interest of the judgment obligor in such property at
the time of levy – subject to liens / encumbrances then 2.1 The procedure is as follows:
existing – effect then on 3rd persons – depends on when
their liens / encumbrances – if any, was annotated or a.Notice must be given as follows:
interposed.495 1.Perishable property – posting of written notice (of time,
place, sale) in 3 public places preferably in conspicuous
2.2 PROBLEM if LEVY is made beyond the period of areas of the municipal/city hall, post office, public market,
5 years from entry of judgment. The same is NOT VALID for such a time as may be reasonable depending on
as lifetime or a writ of execution is 5 years from date of circumstances.
entry of judgment.496

494 Supra, Section 8, Rule 39 497 Supra, Section 9, Rule 39


495 Supra, Section 12, Rule 39 498 Supra, Section 14, Rule 39
496 Supra, Section 14, Rule 39 499 Supra, Section 10, Rule 39

46
2.Personal property – posting of written notice in 3 public an agreement – officer may adjourn from day to day if it
places for not less than 5 days. becomes necessary.503

3.Real property – posting of written notice in 3 public WHAT HAPPENS WHEN A PURCHASER REFUSES TO
places for at least 20 days, describing the property, where PAY
it is to be sold, and if assessed value is in excess of PHP
50,000.00, publishing the notice in a newspaper of general Officer may again sell the property to the highest bidder
circulation once a week for 2 consecutive weeks. and shall not be responsible for any loss occasioned
thereby, like when it is resold for less. But, the court may
IN ALL CASES – written notice is also given to judgment order the refusing purchaser to pay unto the Court such
obligor at least 3 days before the sale except in (a) notice loss, and punish him with contempt if he disobeys.
is given at any time in the same manner as personal Payment shall inure to the benefit of party entitled to
service of pleadings. 500 execution, unless he has been satisfied, in which case to
the judgment obligor. IN ADDITION: officer may thereafter
4.The CONTENTS OF NOTICE are the place, date exact reject all bids of such purchaser.504
time not earlier than 9:00 am or later than 2:00 pm. The
place may be agreed upon, if not, Real/Personal property CAN JUDGMENT OBLIGEE PURCHASE
not capable of manual delivery shall be sold at the Office
of the Clerk of Court of Regional or Municipal Trial Court Yes, and if no 3rd party claim has been filed, he need not
issuing the writ. If capable of manual delivery, where pay the amount if it does not exceed the amount of his
personal property is located. judgment. If it does he shall only pay the excess. 505

5.If there is a sale WITHOUT NOTICE, the officer is liable EFFECT OF PAYMENT BY JUDGMENT OBLIGOR
for punitive damages in the amount of PHP 5,000 in BEFORE SALE OF PROPERTY ON EXECUTION
addition to actual damages sustained by injured person. IF
DEFACED / REMOVED before the sale / satisfaction of Sale is prevented by the payment required by execution
the judgment, the person so defacing or removing shall be and cost incurred therein506
liable to pay PHP 5,000.00 plus actual damages. These
are recoverable upon motion.501 WHAT HAPPENS IF PROPERTY IS CLAIMED BY THIRD
PERSON

b.All sales shall be by public auction. This applies also Third person is called a third party claimant. He is one who
when property is levied upon. Sale is made to the highest claims title to, or right of possession of the property levied
bidder, to start at the exact time stated in the notice. upon by the sheriff. NOTE: there may be a 3 rd party
claimant in execution, preliminary attachment and replevin.
1.If sufficient property has been sold, no more shall be
sold and any excess property / proceeds shall be delivered WHAT DOES 3RD PARTY CLAIMANT DO
to the judgment obligor or his representative, unless
otherwise directed by the court EXAMPLE- other debts He can file a 3rd party claim or a terceria by executing an
due to be paid affidavit showing his title thereto, or right of possession
over the property being levied upon, stating therein the
2.If sale is of real property – consisting of several known grounds of such title or right, serving a copy thereof to the
lots – they must be sold separately or if claimed by a 3rd sheriff and judgment obligee. If filed, sheriff is not obliged
person, he may require it to be sold separately. to proceed unless the judgment obligee files an indemnity
bond in an amount not less than value of the property. No
3.Personal property capable of manual delivery – it must action on the bond may enforced by the third party
be sold within view of those attending and in such parcels claimant unless filed within 120 days from date of the filing
so as to bring the highest price. of the bond. If bond is filed – 3 rd party claimant may
vindicate his claim within the period OR he may institute a
4.The judgment obligor, if present may direct the order in separate action to vindicate his claim BUT nothing also
which the property is to be sold when such property prevents the judgment obligee from claiming damages in
consists of several parcels / known lots which can be sold the same or separate action against a 3 rd party claimant
to advantage separately. who files a frivolous / spurious claim.

5.No officer or his deputies, can be a purchaser, nor be If writ is issued in the name of the RP, no bond is required.
interested directly or indirectly in any purchase at such Officer is to be represented by the SOLGEN, and if
sale.502 damages are assessed, it is to be paid out of the National
Treasury. 507
6.By written consent of both judgment obligor / obligee or
their duly authorized representatives, the auction sale may C. AFTER SALE, CONVEYANCE MADE AS
be adjourned to any date or time agreed by them. Without FOLLOWS

503 Supra, Section 22, Rule 39


504 Supra, Section 20, Rule 39
500 Supra, Section 15, Rule 39 505 Supra, Section 21, Rule 39
501 Supra, Section 17, Rule 39 506 Supra, Section 18, Rule 39
502 Supra, Section 19, Rule 39 507 Supra, Section 16, Rule 39

47
Certificate is then filed with the Office of the Registry of
I. REAL PROPERTY – a certificate of sale is given stating Deeds.512
the description of the property, price paid for each distinct
lot / parcel, whole price paid and a statement that the right WHO IS ENTITLED TO THE USE OF REAL PROPERTY
of redemption shall or will expire one year from date of PENDING REDEMPTION
registration of the certificate.508 MAKING MENTION OF
THE EXISTENCE OF A 3RD PARTY CLAIM, IF ANY509 1.Person in possession at the time of sale or entitled to
Note: the requirement of mentioning a 3 rd party claim, if possession afterwards may continue to use it in the same
any, applies also to conveyance over personal property. manner as it was previously used, or to use in the ordinary
course of husbandry or to make necessary repairs to
THE PARTIES ENTITLED TO REDEEM ARE: buildings thereon while he occupies the property, BUT the
court in proper cases, may restrain the commission of
a.Judgment obligor, or his successor in interest, in whole waste on the property by injunction on the application of
or any part of the property the purchaser / judgment obligee with or without notice. 513

b.A creditor having a lien by virtue of an attachment, 2.Rents, earnings and income shall belong to the
judgment, mortgage on the property sold or on some part judgment obligor until the expiration of his period for
thereof, subsequent to the lien under which the property is redemption. Neither shall the purchaser or judgment
sold. Such redeeming creditor is called a obligee be entitled to the same when such property is in
REDEMPTIONER.510 the possession of a tenant.514

TIME AND MANNER OF REDEMPTION IF NO REDEMPTION IS MADE

The judgment obligor / redemptioner may redeem the If no redemption is made within one year from date of
property from the purchaser at any time within 1 year from registration, the purchaser is entitled to possession and
registration by paying the amount of purchase, plus 1% conveyance; OR if so redeemed – whenever 60 days has
interest per month at the time of redemption, together with elapsed and no other redemption is made and the time for
the amounts of assessments / taxes paid at the purchase redemption has expired, the last redemptioner is entitled to
and interest on the same at the same rate, AND, if the possession and conveyance. BUT, in all cases the
purchaser be also a creditor having a prior lien to that of judgment obligor is entitled to have the entire period of one
the redemptioner, other than the judgment, the amount of year.
the lien plus interest.
Officer shall execute the deed / or his successor in interest
Property so redeemed may be redeemed within 60 days with the same effect.
after the last redemption upon payment of the sum paid,
w/ 2% interest thereon plus taxes / assessments paid, and Once done, the purchaser / redemptioner shall be
amount of liens held by redemptioner prior to his own. substituted to and acquire all the rights title and interest
AND SO FORTH. and claim of the judgment obligor to the property as of the
time of the levy. Possession shall then be given unless
Written notice however of redemption must be given to the property is held by a 3 rd party adverse to the judgment
officer who made the sale and duplicate with the Registry obligor.515 Manner of effecting transfer of possession is by
of Deeds and if any assessments / taxes / prior liens are writ of possession.516
paid, notice must also be given to above parties
OTHERWISE, redemption can be effected without paying IF THE SALE IS SUBSEQUENTLY RENDERED
taxes / assessments / liens. NOTE: Proof required of INFFECTIVE
redemption under Section 30
PROOF REQUIRED OF REDEMPTION If the purchaser of real property or his successor in
interest – fails to recover possession or is evicted
A redemptioner must produce to the officer, or person from therefrom – AS A CONSEQUENCE OF: irregularities in the
whom he seeks to redeem, and serve with notice to the proceedings concerning the sale, judgment has been
officer- a copy of judgment or final order, certified by the reversed or set aside (RE: RELIEF),property is exempt
clerk of court. Mortgage / other lien – certified copy by the from execution , or, 3rd person has vindicated his right to
Register of Deeds / or memorandum thereof and affidavit the property
showing amount due on the lien.511
HE MAY – on motion in the same action OR in a separate
IF JUDGMENT OBLIGOR REDEEMS action recover from the judgment obligee the price paid
with interest, or so much thereof as has not been delivered
He must make all the payments required to effect a to the judgment obligor OR, he may on motion have the
redemption by a redemptioner. Thereupon, no further judgment revived in his name (if redemptioner) for the
redemption is allowed and he is restored to his estate. The whole price with interest, or so much thereof as has been
person upon whom redemption payment is made shall
execute a Certificate of Redemption after payment. 512 Supra, Section 29, Rule 39
513 Supra, Section 31, Rule 39
508 Supra, Section 25, Rule 39 514 Supra, Section 32, Rule 39
509 Supra, Section 26, Rule 39 515 Supra, Section 33, Rule 39
510 Supra, Section 27, Rule 39 516 Cometa v IAC, 151 SCRA 563, AutoCorp Group v Court of
511 Supra, Section 30, Rule 39 Appeals, 437 SCRA 678

48
delivered to the judgment obligor – Judgment revived shall (b) Ordinary tools and implements personally used by
have the same force and effect as an original judgment him in his trade, employment, or livelihood;
would have as of the date of revived and no more.517
(c) Three horses, or three cows, or three carabaos, or
II.PERSONAL PROPERTY - other beasts of burden, such as the judgment obligor may
select necessarily used by him in his ordinary occupation;
a. If capable of Manual Delivery, the officer must
deliver the property and if desired, execute and deliver a (d) His necessary clothing and articles for ordinary
certificate of sale, which shall conveys all right with the personal use, excluding jewelry;
judgment obligor had in such property as of date of levy on
execution or preliminary attachment. 518 (e) Household furniture and utensils necessary for
housekeeping, and used for that purpose by the judgment
b. If Incapable of Manual Delivery, the officer must obligor and his family, such as the judgment obligor may
execute and deliver a certificate of sale and such shall select, of a value not exceeding one hundred thousand
convey all rights to purchaser as of the date of levy on pesos;
execution or preliminary attachment. 519
(f) Provisions for individual libraries and equipment of
3.If for DELIVERY OR RESTITUTION OF REAL judges, lawyers, physicians, pharmacists, dentists,
PROPERTY – officer shall demand of the person against engineers, surveyors, clergymen, teachers, and other
whom judgment is rendered and all persons claiming professionals, not exceeding three hundred thousand
rights under him to peaceably vacate the property within 3 pesos in value;
working days and restore possession thereof to the
judgment obligee – OTHERWISE, officer shall oust all (h) One fishing boat and accessories not exceeding
such persons thereon, with assistance from peace officers the total value of one hundred thousand pesos owned by a
employing reasonable means and place the judgment fisherman and by the lawful use of which he earns his
obligee in possession. Any costs, damages, rents, profits livelihood;
shall be satisfied in the same manner as a judgment for
money. (i) So much of the salaries, wages, or earnings of the
judgment obligor for his personal services within the four
4.If for REMOVAL OF IMPROVEMENTS – officer shall not months preceding the levy as are necessary for the
destroy, demolish or remove except upon special order of support of his family;
the court, issued upon motion / hearing and after the
judgment obligee had failed to remove within a reasonable (j) Lettered gravestones;
time fixed by the rules.
(k) Monies, benefits, privileges, or annuities accruing
5.If for DELIVERY OF PERSONAL PROPERTY – officer or in any manner growing out of any life insurance;
shall take possession and forthwith deliver it to party
entitled thereto and satisfy any judgment for money as (l) The right to receive legal support, or money or
herein provided. 520 property obtained as such support, or any pension or
gratuity from the Government;
EXECUTION OF SPECIAL JUDGMENTS
(m) Properties specially exempted by law.
Performance of an act other than those enumerated in
Section 9 and 10, a certified copy of the judgment shall be But no article or species of property mentioned in this
attached to the writ of execution and served upon party section shall be exempt from execution issued upon a
against whom it is rendered, or upon any person required judgment recovered for its price or upon a judgment of
thereby, or by law, to obey the same – if such party / foreclosure of a mortgage thereon.522
person disobeys – they may be punished for contempt. 521
EXAMPLE: Injunction, Quo warranto Claims for exemption from execution of properties must be
presented before its sale on execution by the sheriff. 523
WHAT ARE THE PROPERTIES EXEMPT FROM
EXECUTION WHAT HAPPENS TO EXECUTION UPON THE DEATH
OF A PARTY
Except as otherwise expressly provided by law, the
following property, and no other, shall be exempt from It may issue or be enforced:
execution:
a. In case of death of judgment obligee, upon
(a) The judgment obligor’s family home as provided application of his executor or administrator
by law, or the homestead in which he resides, and land
necessarily used in connection therewith; b. In case of death of judgment obligor, against his
executor, administrator, or successor in interest, IF it be for
recovery of real or personal property or enforcement of a
517 Supra, Section 34, Rule 39 lien.
518 Supra, Section 23, Rule 39
519 Supra, Section 24, Rule 39
520 Supra, Sections 9 and 10, Rule 39 522 Supra, Section 13, Rule 39
521 Supra, Section 11, Rule 39 523 Gomez v Gealone, 203 SCRA 474

49
c. Death of judgment obligor after execution is 3.Order for application of property and income to
actually levied upon any of his property, the same may be satisfaction of judgment. – it may include his property or
sold for the satisfaction of the judgment obligation and the money due the judgment obligor, not exempt from
officer must account to the executor or administrator for execution, in his hands or other person, corporation or
any surplus, if any. 524 juridical entity may be applied to satisfaction of judgment
subject to any prior rights over such property. ALSO, if
AS BETWEEN SEVERAL PERSONS AGAINST WHOM upon investigation of current income and expenses, the
EXECUTION IS DIRECTED earnings of judgment obligor are more than necessary for
the support of his family, the court may order that
There is a right to contribution or reimbursement if: more judgment be paid by monthly installments, failing in which
than a due portion of the judgment is satisfied out of the he may be punished for indirect contempt.530
proceeds of the sale of the property of one of them, OR,
one pays, without sale, more than his proportion. 4.Appointment of a receiver – for the property of the
judgment obligor, it may also forbid a transfer or other
AND, if judgment is upon an obligation of one of them, as disposition of or interference with the property of the
security for another, and the surety pays the amount, or judgment obligor not exempt from execution. 531 Thereafter,
any part thereof, either by sale of property or before a there can be a sale by the receiver upon order of
sale, he may compel repayment from the principal.525 ascertainable interest (or the real estate itself) of a
judgment obligor in real estate in the place where
proceedings are had as mortgagor / mortgagee or
WHAT ARE THE OTHER REMEDIES OF THE otherwise and if his interest can be ascertained without
JUDGMENT OBLIGEE IF EXECUTION IS NOT CARRIED controversy, the receiver may be ordered to sell and
OUT OR JUDGMENT IS NOT SATISFIED convey such interest or real estate or the interest of the
obligor therein. All proceedings to be approved by the
1.Examination of the judgment obligor concerning his Court before execution of the deed.532
property and income before the court or a commissioner –
and proceedings may thereafter may be had for the In relation to the foregoing, IF IT APPEARS THAT A
application of his property or income towards satisfaction PERSON OR CORPORATION, ALLEGED TO HAVE
of judgment BUT – no obligor can be required to appear PROPERTY OF THE JUDGMENT OBLIGOR DENIES OR
before a court or commissioner outside the province or city CLAIMS INTEREST IN THE PROPERTY ADVERSE TO
where he resides.526 HIM, The Court may: (1) order judgment obligee to
institute an action against such person or corporation for
2.Examination of the obligor of the judgment obligor upon the recovery of such interest or debt (2) forbid a transfer /
proof shown to the satisfaction of the court that a person, disposition of such interest / debt within 120 days from
corporation or other juridical entity has property of the notice of the order (3) punish disobedience of such order
judgment obligor or is indebted to him, the Court may by as for contempt. The order may be modified or vacated at
order require the person, corporation or juridical entity to any time by the court that issued it, or by the court in which
appear before the Court / commissioner and be examined the action is brought, upon terms as may be just.533
concerning the same.
WHAT IS TO BE DONE AFTER JUDGMENT IS
The service of the order shall bind all credits due the SATISFIED
judgment obligor and all money / property of the judgment
obligor in the possession / control of the person, Entry of satisfaction of judgment by the Clerk of Court in
corporation or juridical entity. Court Docket and Execution Book upon RETURN OF
WRIT INDICATING SATISFACTION / ON ADMISSION OF
Notice of all proceedings may also be required by the SATISFACTION BY JUDGMENT OBLIGEE / COUNSEL534
court.527
It can also be entered upon demand of judgment obligor
Obligor of judgment obligor may thereafter pay after writ of when judgment is satisfied in fact – OR upon notice /
execution on property has been issued, the amount of his motion – court may order entry without admission535
debt or so much thereof as may be necessary to satisfy
the judgment and the sheriff’s receipt shall constitute EFFECT OF JUDGMENTS OR FINAL ORDERS
sufficient discharge for the amount so paid or directed to
be credited by the judgment obligee on the execution 528 1.Effect of a judgment / final order rendered by a court in
the Philippines, having jurisdiction to pronounce the same.
In relation to both remedies – party or other person may
be compelled to appear by subpoena and failure to obey (a) In case of a judgment / final order against a
an order, subpoena or be sworn or answer as a witness or specific thing, or in respect to probate of a will or
subscribe to a deposition is punishable by contempt. 529 administration of the estate of a deceased person, or in
respect to personal, political or legal condition / status of a

524 Supra, Section 7, Rule 39 530 Supra, Section 40, Rule 39


525 Supra, Section 35, Rule 39 531 Supra, Section 41, Rule 39
526 Supra, Section 36, Rule 39 532 Supra, Section 42, Rule 39
527 Supra, Section 37, Rule 39 533 Supra, Section 43, Rule 39
528 Supra, Section 39, Rule 39 534 Supra, Section 44, Rule 39
529 Supra, Section 38, Rule 39 535 Supra, Section 45, Rule 39

50
particular person or his relationship to another, the (a) If upon a specific thing, the judgment / final order
judgment or final order is conclusive upon the title to the is conclusive upon title to the thing
thing, the will, administration status or relationship of the
person. HOWEVER, probate or granting of letters of (b) If against a person – it is presumptive evidence of
administration shall only be prima facie evidence of the a right between the parties and their successors in interest
death of the testator.536 by subsequent title.

(b) Other cases, judgment / final order is with In either case, judgment / final order may be repelled by
RESPECT TO THE MATTER DIRECTLY ADJUDGED OR evidence of want of jurisdiction, want of notice, collusion,
AS TO ANY MATTER THAT COULD HAVE BEEN RAISED fraud, clear mistake of fact / law. 542
IN RELATION THERETO is CONCLUSIVE BETWEEN 3.Effect of judgment against a surety
THE PARTIES AND THEIR SUCCESSORS IN INTEREST
BY TITLE SUBSEQUENT TO THE COMMENCEMENT When a judgment is rendered against a party who stands
OF THE ACTION OR SPECIAL PROCEEDING as surety for another, the latter (principal) is also bound
LITIGATING FOR THE SAME THING, UNDER THE from the time he has notice of the action or proceeding,
SAME TITLE AND IN THE SAME CAPACITY.537 and an opportunity at the surety’s request to join in the
defense.543
(c) In any other litigation between the same parties or
their successors in interest, that only is deemed to have APPEALS
been adjudged in a former judgment / final order which
appears on its face to have been so adjudged or which Rule 40 – Appeals from MTC to RTC
was actually and necessarily included therein or necessary
thereto.538 WHERE CAN AN MTC DECISION BE APPEALED

1.1 Paragraphs (a) and (b) are illustrative of the A judgment / final order of the Municipal Trial Court is
concept of res judicata that is also known as “bar by prior appealable to the Regional Trial Court exercising
judgment”. This exists when between the first case where jurisdiction over the area to which the Municipal Trial Court
judgment is rendered, and the second case where such pertains.
judgment is invoked, there is identity of parties, subject
matter, and cause of action. When all three are present, 1.In the appeal, the case title remains, but party appealing
the judgment on the merits rendered in the first constitutes is designated as appellant, while the adverse party is
an absolute bar to the subsequent action. designated as the party-appellee.544

1.2 Paragraph (c) is illustrative of what is known as WHEN CAN APPEAL BE TAKEN
“conclusiveness of judgment”, when between the first case
wherein judgment was rendered and the second case 15 days after notice to the appellant. If record on appeal is
wherein such judgment is invoked, there is only identity of required 30 days after notice BUT period can be
parties, but there is no identity of cause of action, the interrupted by a motion for reconsideration or for new trial,
judgment is thus conclusive in the second case, only as to though no motion to extend time for its filing is allowed. 545
the matters actually and directly controverted and
determined, and not as to matters merely involved 1.Note the “fresh period rule” that is now applicable to an
therein.539 appeal under Rule 40, Rule 41, Rule 43 and Rule 45,
which allows a party intending to appeal another 15 days
1.3 CONCLUSIVENESS OF JUDGMENT, also known from receipt of an order denying a motion for
as PRECLUSION OF ISSUES or COLLATERAL reconsideration or new trial to file an appeal 546
ESTOPPEL espouses that issues actually and directly
resolved in a former suit cannot again be raised in any HOW IS APPEAL TAKEN
future case between the same parties involving a different
cause of action.540 1. By notice of appeal indicating parties, judgment or
final order appealed from statement of the material dates
1.4 The doctrine of “ The law of the case” states that showing timeliness of the appeal.
whatever has once been irrevocably established as the
controlling legal rule of decision between the same parties, 2. By record on appeal in special proceedings or
whether correct on general principles or not, so long as the cases allowing for multiple appeals, like probate or
facts on which the decision was predicated continue to be partition. The record on appeal shall contain the following:
the facts of the case before the court.541
a.Full name of the parties stated in the caption including
2.Effect of a foreign judgment/final order the judgment / final order from which appeal is taken
b.In chronological order, copies of all pleadings, petitions,
motions, and all interlocutory orders as are related to the
536 Supra, Section 47 (a), Rule 39
537 Supra, Section 47 (b), Rule 39
538 Supra, Section 47 (c), Rule 39 542 Supra, Section 48, Rule 39
539 Oropeza Marketing Corporation v Allied Banking 543 Supra, Section 46, Rule 39
Corporation, 393 SCRA 278 544 Supra, Section 1, Rule 40
540 Tan v Court of Appeals, 363 SCRA 444 545 Supra, Section 2, Rule 40
541 Boiser v NTC, 169 SCRA 546 Neypes v Court of Appeals, GR 141524, September 14, 2005

51
appealed judgment / final order for proper understanding
of the issue. b.Where delay in the payment of docket fee was not due
c. Data to show that appeal was filed on time to a desire to delay or defeat the ends of justice, late
d.If issue of fact is to be raised, it should include reference payment thereof which causes no prejudice to anyone
the documentary evidence by exhibit taken on the issue – should not result in the dismissal of the appeal. 553
specifying the documentary evidence by exhibit nos. or
letters and testimonial evidence by the names of the a.THE RECORD/RECORD ON APPEAL IS
witnesses. If the whole of it is included, a statement to TRANSMITTED by the clerk of court within 15 days from
such effect is sufficient. perfection, together with transcripts / exhibits, which he will
e.If more than 20 pages include a subject index 547 certify as complete. A copy of the transmittal shall be
furnished the parties.554
NOTE that the requirement for a Approval of record on
appeal548 – the trial court may approve it, if no objection is WHAT HAPPENS UPON TRANSMITTAL TO THE RTC
filed by the appellee – or upon its motion / appellee direct
its amendment by the inclusion of omitted matters which Within 15 days from notice, appellant shall submit a
are deemed essential to the determination of the issue of memorandum briefly discussing errors imputed to the
law or facts involved is the appeal.If amendment is lower court, copy furnished the adverse party. Within 15
ordered, which the appellant must comply with within the days from receipt of appellants’ memorandum, appellee
period stated, any extension or if none, within 10 days, may file his own memorandum. Failure of appellant shall
submitting the redrafted record for the approval of the be ground for dismissal of the appeal. Upon filing /
Court. Where both parties are appellants, they may file a expiration, the case is submitted for decision on the basis
joint record on appeal.549 of the record in Municipal Trial Court and the memoranda
submitted by the parties.555
3.Regardless of the mode of appeal, the adverse party is
to be furnished with a copy. 1.NOTE that if an appeal is taken from an order of the
lower Court dismissing the case without trial on the merits,
WHEN PERFECTED the Regional Trial Court may affirm or reverse it as the
case may be:
As determined by Section 9, Rule 41:
a.In case it is affirmed and ground of dismissal is lack of
1.If by notice of appeal, it is perfected upon the filing of the jurisdiction over the subject matter of the case, the
notice in due time. The court loses jurisdiction upon Regional Trial Court, if it has jurisdiction, shall try the case
perfection and expiration of the time of appeal of other on the merits as if the case was originally filed with it. In
parties. case of reversal, it shall be remanded back for further
proceedings.
2.If by record on appeal, it is perfected upon approval of
record on appeal filed in due time. Court loses jurisdiction b.If it was tried on the merits, without jurisdiction, the RTC
upon approval and expiration of time to appeal of other on appeal shall not dismiss the case if it has original
parties. jurisdiction, but shall decide the case in accordance with
Section 7, without prejudice to the admission of amended
In either case, prior to transmittal of the records, the court pleadings and additional evidence in the interest of
may issue orders: (a)protection and preservation of the justice.556
rights of the parties not involving any matter litigated by
the appeal (b)approve compromises (c) permit appeals of RULE 41 – APPEALS FROM REGIONAL TRIAL
indigent litigants (d)order execution pending appeal (e) COURTS
allow withdrawal of appeal.550 This is power is known as
“RESIDUAL JURISDICTION” An appeal may be taken from a judgment /final order that
completely disposes of a case, or a particular matter
3.In both cases, DOCKET FEES / OTHER FEES are also therein when declared by the Rules to be appealable BUT
to be paid to the clerk of court of the court that rendered NO APPEAL CAN BE TAKEN FROM:
judgment. Proof payment of the same shall be transmitted
to the appellant court together with the records / record on (a) Order denying a motion for new trial or
appeal. 551 reconsideration. An appeal of judgment/final order is
remedy or certiorari under Rule 65
a.Late payment of docket fees may be admitted when a
party shows a willingness to abide by the Rules by (b) Order denying a petition for relief from judgment or
immediately paying the docket fee six days after filing a similar motion. Certiorari under Rule 65 is remedy
notice of appeal and beyond the period for perfecting an
appeal.552 (c) Interlocutory order. Certiorari under Rule 65 or
mandamus is remedy
547 Supra, Section 6, Rule 41
548 Supra, Section 7, Rule 41
549 Supra, Section 8, Rule 41
550 Supra, Section 4, Rule 40 553 Lopez v Court of Appeals, 75 SCRA 401
551 Supra, Section 5, Rule 40 554 Supra, Section 6, Rule 40
552 Mactan Cebu International Airport Authority v Mangubat, 555 Supra, Section 7, Rule 40
312 SCRA 466 556 Supra, Section 8, Rule 40

52
(d) Order disallowing or dismissing an appeal. original record / record on appeal and make a certification
Mandamus or petition for relief from judgment is the as to correctness (b) verify completeness of records
remedy transmitted to appellate court (c) If incomplete, take
(e) Order denying a motion to set aside judgment by necessary measures as may be required to complete the
consent confession, compromise on the ground of fraud, records, availing of the authority that he or the court may
mistake, duress or any ground vitiating consent. A petition exercise for this purpose. (d) transmit the records to the
for relief or a petition to annul judgment under Rule 47 or appellate court. (e) then furnish parties of his transmittal.
564
Certiorari under Rule 65 is the remedy

(f) Order of execution. Certiorari under Rule 65 is the 4.1 IF EFFORTS TO COMPLETE FAIL, it shall be
remedy indicated in the letter of transmittal which exhibits /
transcripts are not included, the reasons why they were
(g) Judgment / final order in separate claims, not transmitted and the steps taken to make them
counterclaims, cross claims – 3rd party claims, while main available.
case is pending, unless the court allows an appeal
therefrom. The object is facilitate the trial of all issues. 4.2 It is likewise required that the transcripts be
transcribed565 and that the transmittal to include proof of
(h) Order dismissing an action without prejudice. The payment of docket fees.
remedy is to refile or certiorari under Rule 65.557
4.3 Prior to transmittal of record / record on appeal,
NOTE: That declaration of presumptive death not the court may motu propio or on motion to dismiss the
appealable by the state, neither by other party. Remedy of appeal for having been take out of time OR for non
the spouse declared presumptively dead is to file affidavit payment of docket and other lawful fees within the
of reappearance. See Article 41, Family Code reglementary period.566 If transmitted already, the Court of
Appeals may dismiss.
WHAT ARE THE MODES OF APPEAL OF A JUDGMENT
OR FINAL ORDER OF A REGIONAL TRIAL COURT558 5.Other procedural requirements and disposition of the
appeal are governed by Rule 44:
(a) Ordinary appeal refers to an appeal by notice of
appeal of the decision of the Regional Trial Court in cases 5.1 The title of the case shall remain, party appealing
decided in the exercise of its original jurisdiction raising shall be referred to as appellant / adverse party-
question of fact or mixed questions of law and fact appellee.567 Counsel / guardians ad litem of parties shall
likewise be considered as such in Court of Appeals, when
1.The period of ordinary appeal is 15 days from notice of others appear or are appointed, notice shall be filed and
judgment / final order appealed from. If requiring a record furnished adverse parties.568
on appeal, it is 30 days. Said periods are interrupted by a
motion for new trial or reconsideration but no extension of 5.2 If the RECORDS are not transmitted to the Court
time for their filing is allowed. NOTE: That in habeas of Appeals within 30 days after perfection of the appeal,
corpus cases the period is 48 hours from notice of either party may file a motion with the Regional Trial Court,
judgment or final order 559 NOTE ALSO: The application of with notice to the other, for transmittal.569
the “fresh period rule”.
5.3 UPON RECEIPT BY THE COURT OF APPEALS,
2.Appellate court docket fees / lawful fees shall be paid the clerk shall docket the case and notify the parties. If
within the period for taking an appeal to the clerk of court appeal is by record on appeal, within 10 days from receipt
of the court that rendered judgment BUT failure to pay is a of notice, appellant must file with the clerk of court 7
ground for dismissal of the complaint560 clearly legible copies of approved record on appeal and
proof of service thereof to adverse party of 2 copies. Any
3.If Appeal is by NOTICE OF APPEAL, it must indicate unauthorized, alteration, omission or addition shall be
parties, judgment or final order appealed from, and include ground for dismissal of the appeal.570
a statement of the material dates showing timeliness of the The Clerk of the CA should also ascertain the
appeal.561 or if by RECORD ON APPEAL it must comply completeness of the records. If incomplete, he shall inform
with the requirements as previously discussed in an the court and recommend measures to complete the
appeal from the Municipal Trial Court to the Regional Trial record within the shortest possible time BUT if it cannot be
Court.562 completed due to insuperable or extremely difficult
circumstances. The court, on its own or upon motion, may
4.PERFECTION OF APPEAL IS AS DISCUSSED under declare the record sufficient to decide issues and explain
Rule 40.563 Subsequently, it is the DUTY OF CLERK OF reason for such declaration.571
COURT OF THE LOWER COURT within 30 days after
perfection of all appeals to: (a) verify correctness of the
564 Supra, Section 10, Rule 41
557 Supra, Section 1, Rule 41 565 Supra, Section 11 and 12, Rule 41
558 Supra, Section 2, Rule 41 566 Supra, Section 13, Rule 41
559 Supra, Section 3, Rule 41 567 Supra, Section 1, Rule 44
560 Supra, Section 13, Rule 41 568 Supra, Section 2, Rule 44
561 Supra, Section 5, Rule 41 569 Supra, Section 3, Rule 44
562 Supra, Sections 6,7,8, Rule 41 570 Supra, Section 4, Rule 44
563 Supra, Section 9, Rule 41 571 Supra, Sections 4 and 5, Rule 44

53
5.4 ONCE DONE, Briefs are to be filed: (a) The (b) Petition for Review is an appeal to the Court of
Appellant’s Brief must be filed within 45 days from notice Appeals of judgment / final order of the Regional Trial
that all evidence, documentary / testimonial are attached Court in the exercise of its appellate jurisdiction under
to the record, 7 copies of the brief are to be filed attaching Rule 42
proof of service of 2 copies to adverse party. 572 Where
there are several parties, each counsel representing one 1.It is initiated by the filing of a Verified Petition for Review
or more but not all may be served with 1 copy. If several with the Court of Appeals, paying at the same time to the
counsel represent one party, service may be made on any Clerk of Court of Appeals the corresponding docket fees
one of them.573 The CONTENTS OF THE APPELLANT’S and lawful fees, depositing 500 for costs, furnishing the
BRIEF are: (1) subject index (2)assignment of errors (3) Regional Trial Court and adverse party with a copy of the
statement of the case (4)statement of facts (5)statement of Petition.
issues (6) arguments (7) relief (8) if not by record on
appeal, an appendix, copy of judgment / final order 2.It is to be filed within 15 days from notice of decision
appealed. 574 (b) The Appellee’s Brief is to be filed within sought to be reviewed or denial of motion for new trial or
45 days from receipt of Appellant’s Brief. It is required that motion for reconsideration. UPON PAYMENT OF
7 copies be filed with proof of service of 2 copies on DOCKET FEES AND DEPOSIT AND BEFORE
appellant. The CONTENTS OF APPELLEE’S BRIEF are: EXPIRATION OF THE PERIOD, the Court of Appeals
(1) subject index (2) statement of facts, either a statement may grant an extension of 15 days. No further extension
of acceptance or counter-statement of facts (3) can be given unless for the most compelling reason, but in
Arguments575 (c) A Reply Brief may be filed by appellant no case to exceed 15 days. 582
within 20 days from receipt of the Appellee’s Brief. 576 NO
EXTENSION OF TIME TO FILE BRIEFS is allowed 3.FORM, CONTENTS, NUMBER OF COPIES. 7 copies
except for good and sufficient cause, and only if filed are to be filed, indicating the original copy intended for the
before expiration of the time sought to be extended 577 IN Court of Appeals containing (a)full names of parties,
LIEU OF BRIEFS, MEMORANDA is required in certiorari, without impleading the lower court / judges (b)specific
prohibition, madamus, quo warranto, hebeas corpus within material dates indicating that it is filed on time (c)
a non-extendible period of 30 days from notice that all statement of matters, issues, specification of errors of
evidence is attached to the record. Failure of appellant to fact / law and reasons / arguments relied upon
file his memoranda is ground to dismiss the appeal.578 (d)accompanied by clearly legible duplicate copies or true
copies of judgment of the lower courts, certified correct by
5.5 QUESTIONS OF LAW OR FACT MAY BE Regional Trial Court clerk of court, pleadings and other
RAISED in the appeal, whether or not a motion for new material portions supporting the allegations of the petition
trial has been filed and must within the issues framed by (e) certification against forum shopping / verification.
the parties.579 NOTE: Failure to pay fees or comply with the requirements
shall be sufficient ground for dismissal.583
As a rule, a party who deliberately adopts a certain theory
upon which the case is tried and decided by the lower 4.The appeal is deemed PERFECTED upon timely filing of
court will not be permitted to change his theory on appeal. the petition and payment of docket fees. The RTC loses
Points of law, theories, issues, and arguments not brought jurisdiction upon perfection of the appeal and lapse of time
to the attention of the lower court need not be , and to appeal by the other parties. The Regional Trial Court
ordinarily not be, considered by a reviewing court, as continues to have RESIDUAL JURISDICTION until the
these cannot be raised for the first time at such late stage. same has been given DUE COURSE.584
Basic considerations of due process underlie this rule.580 5.NOTE that except in cases covered by the Rule on
Summary Procedure, appeal shall stay the judgment / final
6.In Criminal Cases, note the possibility of the filing of two order unless Court of Appeals or the Rules provide
notices of appeal when the penalty imposed by the otherwise
Regional Trial Court is life imprisonment or reclusion
perpetua, appeal is by notice to the Court of Appeals, and 6.ONCE FILED, the Court of Appeals may: (a) Require the
by notice again to the Supreme Court. If the penalty is respondent to file a comment, not a motion to dismiss,
death, it is automatically reviewed by the Supreme Court, within 10 days from notice (b)Dismiss the petition if found
but such shall be made by the Court of Appeals, which to be patently without merit, prosecuted manifestly for
shall render judgment, then certify it to the Supreme Court, delay, or questions raised therein are too unsubstantial to
who will then enter the same.581 require consideration.585

7.The COMMENT should be filed in 7 copies,


accompanied by certified true copies of such MATERIAL
572 Supra, Section 7, Rule 44 PORTIONS OF THE RECORD AND OTHER
573 Supra, Section 11, Rule 44 SUPPORTING DOCUMENTS, stating: (a)Statement of
574 Supra, Section 13, Rule 44 whether or not he accepts the statement of matters (b)
575 Supra, Section 14, Rule 44 Point out the insufficiencies / inaccuracies (c) State
576 Supra, Section 9, Rule 44
577 Supra, Section 12, Rule 44
578 Supra, Section 10, Rule 44
579 Supra, Section 15, Rule 44 582 Supra, Section 1, Rule 42
580 BPI v Leobrera, 416 SCRA 15 583 Supra, Sections 2 and 3, Rule 41
581 People v. Mateo, 433 SCRA 640, AM No. 00-5-03-SC, 584 Supra, Section 8, Rule 42
October 15, 2004 585 Supra, Section 4, Rule 42

54
reasons why it should not be given due course. Copy of portion supporting the record (e) Certificate against forum
which must be served on adverse party. 586 shopping and verification592

8.A petition is given DUE COURSE when upon the filing 5.UPON FILING, the Supreme Court can:
of the comment or expiration of the period to file, the Court
of Appeals finds PRIMA FACIE that the lower court has 5.1 DISMISS – (1) for failure to comply with the
committed an error of fact / law that will warrant a requirements regarding payment, proof of service,
reversal / dismissal. CONSEQUENTLY, the Court of contents and documents (2) on its own initiative because it
Appeals, if it deems necessary, will order the elevation by is without merit, prosecuted for delay, or issues are too
the clerk of the Regional Trial Court of the entire record unsubstantial to require consideration, OR
within 15 days from notice.587
5.2 ALLOW REVIEW, which is not a matter of right but
9.IT IS SUBMITTED FOR DECISION after the filing of last is discretionary, when there are special / important
pleading or memorandum. Prior to that though, the Court reasons therefor: EXAMPLES- (1) when the court a quo
of Appeals may set it for oral argument / or require has decided a matter of substance not therefore
memoranda to be submitted within a period of 15 days determined by the Supreme Court or decided in a way not
from notice.588 in accord with the law or applicable decisions of the
Supreme Court (2) when court a quo has so far departed
(c) Appeal by Certiorari or Petition for Review on from the accepted and usual course judicial proceedings,
Certiorari which should involve a pure question of law or so far sanctioned such departure by a lower court, as to
direct to the Supreme Court under Rule 45 call for an exercise of the power of supervision.593

1.A Question of Law is one that requires interpretation or 6.If given DUE COURSE, the Supreme Court can: (a)
application of a law, while a Question of Fact is one that Require elevation of the records / or specified portions
pertains to a resolution of a factual dispute. thereof within 15 days from notice 594 (b) Require filing of
pleadings, briefs, memoranda or documents as it may
1.1 There is a question of law in a given case when deem necessary within periods / conditions it may
the doubt or difference arises as to what the law is consider appropriate and impose sanctions for non-filing /
pertaining to a state of acts, and there is a question of fact non-compliance or unauthorized filing. This ALSO applies
when the doubt arises as to the truth or falsity of alleged to a determination as to whether it should be dismissed or
facts.589 denied.595 The RULE APPLIES TO BOTH CIVIL /
CRIMINAL ACTIONS, except in cases where penalty is
2.This is initiated by the filing of a Verified Petition for death, reclusion perpetua / life imprisonment.596
Review on Certiorari raising only questions of law. This 7.The exceptions to the general rule that only questions of
mode of appeal is available to question judgment / law may be raised in a petition for review are:(a) when the
resolutions of the Court of Appeals, the Sandiganbayan, a conclusion is a finding grounded entirely on speculation,
Regional Trial Court, and other Courts whenever surmises, or conjectures; (b) when the inference made is
authorized by law.590 manifestly mistaken, absurd, or impossible; (c) where
there is a grave abuse of discretion; (d) when the
3.The TIME FOR FILING is 15 days from notice of the judgment is based on a misapprehension of facts; (e)
judgment, final / order, or resolution or of denial of when the findings of fact are conflicting; (f) when the Court
petitioner’s motion for new trial / reconsideration. On of Appeals, in making its findings, went beyond the issue
motion and with full payment of docket fees and deposit of of the case and the same is contrary to the admissions of
costs, the Supreme Court on justifiable reason may grant both appellant and appellee; (g) when the findings of the
an extension of 30 days within which to file the petition. Court of Appeals are contrary to those of the trial courts;
(h) when the findings of facts are conclusions without
Docket fees and proof of service of the petition on the citation of specific evidence on which they are based; (i)
lower court and adverse party must accompany the filing when the facts set forth in the petition as well as in the
of the petition.591 petitioner’s main and reply briefs are not disputed by the
respondents; (j) when the finding of fact of the Court of
4.18 copies of the petition are required to be filed, Appeals is premised on the supposed absence of
indicating the original copy for the court. It should contain: evidence but is contradicted by the evidence on record;
(a) full names of parties (petitioner / respondent) without and (k) when the Court of Appeals manifestly overlooked
impleading court / judge (b) indicate material dates certain relevant facts not disputed by the parties and
(c)concise statements of the matters involved and the which, if properly considered, would justify a different
reason / arguments relied upon for the allowance of the conclusion.597
petition (d) clearly legible copies of judgment / final order /
reconsideration or certified true copy and other material

586 Supra, Section 5, Rule 42


587 Supra, Section 6, Rule 41 592 Supra, Section 4, Rule 45
588 Supra, Section 9, Rule 42 593 Supra, Sections 5 and 6, Rule 45
589 Manila Bay Club Corporation v Court of Appeals, 245 SCRA 594 Supra, Section 8, Rule 45
715 595 Supra, Section 7, Rule 45
590 Supra, Section 1, Rule 45 596 Supra, Section 9, Rule 45
591 Supra, Sections 2 and 3, Rule 45 597 Martinez v Court of Appeals, 358 SCRA 38

55
(d) By Petition for Review under Rule 43 in a case statement of matters involved, the factual background of
decided by the Regional Trial Court sitting as a the case, and the grounds relied upon for the relief prayed
commercial court.598 for (2)statement of material dates, AND IN A PETITION
UNDER RULE 65, material dates are dates of notice of
1.Applies primarily to appeals from the Court of Tax judgment or final order, when a motion for new trial or
Appeals and other quasi-judicial agencies to the Court of reconsideration was filed, if any, and when notice of denial
Appeals, but is not applicable to judgments / final orders was received (3) clearly legible duplicate originals or
under the Labor Code.599 certified true copy of the attachments (4)certification
against forum shopping (5)docket fees / deposit for cost. 606
2.The appeal can include questions of fact, law or mixed FAILURE TO COMPLY IS SUFFICIENT GROUND FOR
questions of law and fact.600 DISMISSAL OF PETITIONS

3.The appeal shall be taken within fifteen (15) days from A certified true copy is one the certification of which is
notice if the award, judgment, and final order of resolution, made by the proper clerk of court or his duly authorized
or from the date of its last publication, if publication is representative.607
required by law for its effectivity, or of the denial of the
petitioner’s motion for new trial or reconsideration duly HOW DOES THE COURT ACQUIRE JURISIDICTION
filed in accordance with the governing law of the court or
agency a quo. Only one (1) motion for reconsideration Jurisdiction over the person or the respondent is acquired
shall be allowed. Upon proper motion and the payment of by service of order or resolution indicating initial action on
the payment of the full amount of the docket fee before the the petition or voluntary submission to jurisdiction. 608
expiration of the reglementary period, the Court of Appeals
may grant an additional period of fifteen (15) days only ACTION TO BE TAKEN BY THE COURT OF APPEALS
within which to file the petition for review. No further 1.The COURT may dismiss the petition outright with
extension shall be granted except for the most compelling specific reasons OR require the filing of a comment within
reason and in no case to exceed fifteen (15) days. 601 10 days from notice. ONLY PLEADINGS REQUIRED CAN
BE FILED – OTHERS CAN ONLY BE FILED WITH LEAVE
4.All other procedural matters and requirements are OF COURT.609
similar to a Petition for Review under Rule 42 EXCEPT
that an appeal under this Rule shall not stay the award, 2.If factual issues are to be resolved, the Court of Appeals
judgment, final order or resolution unless the Court of can conduct hearings or delegate reception of evidence on
Appeals deems otherwise.602 such issues to any of its members or to an appropriate
court / agency / office. 610(Section 6, Rule 46)
7.In summary judicial proceedings under the Family Code,
there is no reglementary period within which to perfect an 3.If comment is not filed, it may be decided on the basis of
appeal, precisely because judgments rendered the record without prejudice to any disciplinary action
thereunder, by express provision of Section 247 of the against disobedient party.611
Family Code, are immediately final and executory. 603
Appeal by notice of appeal is erroneous. The Court of 4.The COURT, IF THE PETITION IS NOT DISMISSED
Appeals should have dismissed as it had no jurisdiction to OUTRIGHT:
review on appeal. Per Justice Panganiban, Certiorari
under Rule 65 is the remedy of the State. 4.1 Can call the parties / counsel to a preliminary
conference, the object of which is to : (a) consider
PROCEDURE WITH THE COURT OF APPEALS compromise agreements, except when case is not allowed
to be compromised (b) define, simplify and clarify issues
RULE 46 – ORIGINAL CASES FILED WITH THE COURT (c)formulate stipulation of facts and admissions of
OF APPEALS documentary exhibits, limit the number of witnesses in
cases falling within its original jurisdiction or those within
Parties are to be designated as petitioner / respondent 604 its appellate jurisdiction where a motion for new trial is
and is to apply to cases of Certiorari, Prohibition, granted on newly discovered evidence (d) other
Mandamus, Quo Warranto and to petitions for annulment matters that may aid in prompt disposition of the case. 612
of judgment under Rule 47605
4.2 Record of proceedings is made and a
CONTENTS OF PETITION – FILING – EFFECTS OF RESOLUTION embodying actions shall be issued613 which
NON COMPLIANCE shall be binding upon parties and control subsequent
proceedings unless within 5 days from notice, it can be
Petitions filed before the Court of Appeals must contain the shown by valid cause why it should not be followed or
following: (1) identification of the parties, a concise

598 A.M. No. 04-9-07-SC, September 14, 2004 606 Supra, Section 3, Rule 46
599 Supra, Sections 1 and 2, Rule 43 607 Paras v Baldado, 354 SCRA 141
600 Supra, Section 3, Rule 43 608 Supra, Section 4, Rule 46
601 Supra, Section 4, Rule 43 609 Supra, Section 5, Rule 46
602 Supra, Section 12, Rule 43 610 Supra, Section 6, Rule 46
603 Republic v Bernardez-Lorino, 449 SCRA 57 611 Supra, Section 7, Rule 46
604 Supra, Section 1, Rule 46 612 Supra, Section 1, Rule 48
605 Supra, Section 2, Rule 46 613 Supra, Section 2, Rule 48

56
there is need for modifications to prevent manifest 1.An appeal under Rule 41 from the Regional Trial Court
injustice614 to the Court of Appeals raising only questions of law shall
be dismissed as issues purely of law are not reviewable by
4.3 At it own instance or by motion, to hear the parties the Court of Appeals
in oral argument on the merits of the case or on any
material incident AND is limited to such matters as the 2.An appeal by notice of appeal instead of petition for
court may specify in its order or resolution.615 review from a Regional Trial Court exercising appellate
jurisdiction shall be dismissed
4.4 In the conduct of oral arguments, unless
authorized, only 1 counsel may argue for a party. Duration, 3.An appeal erroneously taken to Court of Appeals shall
sequence and all related matters shall be as directed by not be transferred but shall be dismissed outright.619
the Court.616
WITHDRAWAL OF AN APPEAL
4.5 MOTIONS THOUGH ARE NOT TO BE SET FOR
HEARING, AND UNLESS DIRECTED BY THE COURT, An appeal may be withdrawn as of right at any time before
NO HEARING OR ORAL ARGUMENTS shall be allowed the filing of the appellee’s brief. Thereafter, only upon
in support thereof. The adverse party may file objections discretion of the Court.620
within 5 days from notice, then upon expiration of the
period, it is submitted for resolution.617 RULE 51 - JUDGMENT

RULE 50 - GROUNDS FOR DISMISSAL BY THE COURT When submitted for judgment:
OF APPEALS
1. IN ORDINARY APPEALS:
In ALL CASES THAT COME BEFORE IT, and besides on
a finding that the case is without merit, prosecuted for a.Where no hearing on merits is held, upon filing of the
delay or issue is too unsubstantial to merit consideration, last pleading, brief, memoranda or expiration of period to
ON MOTION OF THE COURT OR OF THE APPELLEE, it file.
may dismiss the petition on the basis of:
b.Where a hearing is held, upon termination of hearing or
1.Failure of record on appeal to show on its face that upon filing of the last pleading, memoranda as may be
appeal was taken within period fixed by the Rules. required or permitted, or expiration of period to file

2.Failure to file notice of appeal or record on appeal within 2. IN ORIGINAL ACTIONS / PETITIONS FOR
period within the period prescribed by the Rules. REVIEW

3.Failure to pay docket fees as provided under Section 5, a.Where no comment is filed, upon expiration of the period
Rule 40 and Section 4, Rule 41. to file comment
b.Where no hearing, same as 1 (a)
4.Unauthorized alterations, omissions, additions on record c. Where hearing is held, same as 1 (b)621
on appeal as provided under Section 4, Rule 44
3.Judgment is rendered by members of the court who
5.Failure of appellant to serve and file required number participated in the deliberations on the merits before
briefs or memoranda within provided time by these Rules assignment to a member for writing of the decision.622

6.Absence of specific assignment of errors or page 4.Participation of all 3 justices shall be necessary at
references to the record as required by Section 13, deliberation and unanimous vote shall be required for
paragraphs a,c,d, and f of Rule 44 pronouncement. If not, the clerk shall enter the vote of
dissenting justices in the record. Thereafter, Chairman of
7.Failure of appellant to take necessary steps for the the division refers it to the Presiding Justice, who will
correction or completion of the records within time limited designate 2 justices by raffle to sit temporarily and to form
by the Court a special division of five (5) justices. The participation of all
is required for deliberation. Concurrence of majority is
8.Failure to appear at preliminary conference under Rule required for pronouncement.623
48, or comply with orders, circulars or directives of the
Court without justifiable cause Note: That in rendering judgment, harmless errors or
those which do not affect the substantial rights of the
9.The fact that order / judgment appealed from is not parties624 or errors that are not assigned will not be
appealable.618 considered unless they affect jurisdiction, validity of
judgment, and of proceedings.625
DISMISSAL OF IMPROPER APPEAL
619 Supra, Section 2, Rule 50
620 Supra, Section 3, Rule 50
614 Supra, Section 3, Rule 48 621 Supra, Section 1, Rule 51
615 Supra, Section 1, Rule 49 622 Supra, Section 2, Rule 51
616 Supra, Section 2, Rule 49 623 Supra, Section 3, Rule 51
617 Supra, Section 3, Rule 49 624 Supra, Section 6, Rule 51
618 Supra, Section 1, Rule 50 625 Supra, Section 8, Rule 51

57
1.No second motion for reconsideration will be
4.1 HARMLESS ERROR DOCTRINE means that any entertained.633
error or defect which does not affect substantial rights will
be disregarded by the reviewing court or tribunal. It is 2.It is to be resolved within sixty (60) days from
followed to deal with evidence improperly admitted during submission for resolution634 and while pending, shall stay
trial wherein its damaging quality and impact to the the execution unless for good reason, court directs
substantial rights of the litigant are examined. If deemed otherwise.635
slight and insignificant, the error is disregarded. 626 It is not
a ground for granting of a new trial or for setting aside, RULE 53- MOTION FOR NEW TRIAL
modifying, or disturbing a judgment or final order unless
the refusal appears to the Court inconsistent with It can be filed at any time after appeal from the lower court
substantial justice. has been perfected and before the Court of Appeals loses
jurisdiction, on the ground of newly discovered evidence
5.JUDGMENTS OF THE COURT OF APPEALS IN THE WHICH COULD NOT HAVE BEEN DISCOVERED PRIOR
EXERCISE OF APPELLATE JURISDICTION MAY affirm, TO THE TRIAL IN THE COURT BELOW BY THE
reverse, or modify the judgment or final order appealed EXERCISE OF DUE DILIGENCE AND WHICH IS OF
from. It may also order or direct a new trial to be held or SUCH A CHARACTER AS WOULD PROBABLY CHANGE
that further proceedings be taken. 627 The decision must THE RESULT. The motion must be accompanied by
state clearly and distinctly the findings of fact and affidavits showing the facts constituting the grounds and
conclusions of law on which it is based, which may be the newly discovered evidence.636
contained in the resolution itself or adopted from those set
forth in the judgment, final order appealed from.628 The Court of Appeals shall then consider the evidence and
that adduced at the trial, to determine if it will grant or
6.PROCEDURE AFTER JUDGMENT IS: refuse a new trial, or make such order, with notice to both
parties, as to the taking of further testimony, either orally in
6.1 After signing by the justices, it shall be delivered to court, by depositions, or render such other judgment as
the clerk of court, who shall indicate thereon the date of ought to be rendered upon terms it may deem just. 637 IF
promulgation and cause true copies thereof to be served GRANTED, the procedure shall be the same as that
upon the parties or counsel.629 granted by a Regional Trial Court.638

2.If no appeal, or motion for new trial or reconsideration is Motion should be resolved within 90 days from the date it
filed within the period, the judgment or final resolution shall is declared to be submitted.639
be entered in the book of Entries of Judgment. Judgment
or final resolution shall be deemed executory as of the OTHER MATTERS
date of entry. The record shall contain the dispositive
portion, signed by the clerk with a statement that it is final RULE 54 – Internal Business
and executory.630
Allotment of cases shall be among the different divisions
3.Execution shall as a rule issue upon a motion in the for hearing and decision. The Court of Appeals En Banc
proper court upon its entry. In appealed cases, where the shall make proper orders or rules to govern allotment, the
motion is filed with the Court of Appeals at the time that it constitution of such divisions, the regular rotation of
is in possession of the original records or record on justices, filling of vacancies, and other matters. Such will
appeal, the resolution granting the motion shall be continue in force and repealed or altered by it or the
transmitted to the lower court from which the case Supreme Court.640
originated, together with certified copy of the judgment to
be executed, with a directive to said court to issue the A majority of the court shall constitute a quorum for
proper writ for its enforcement. In original actions, the writ sessions en banc and a majority of the members present
shall be accompanied by a certified true copy of the entry shall be necessary to pass a resolution. Three members of
of judgment and addressed to appropriate officer for a division shall constitute a quorum for sessions of a
enforcement.631 division and the affirmative vote of three members shall be
necessary for pronouncement of judgment/resolution,
RULE 52- MOTIONS FOR RECONSIDERATION which shall be reached in consultation among them before
BEFORE THE CA the writing of the opinion by any member of the division. 641

RULE 55 – Publication of Judgment/Final


Judgments of the Court of Appeals can be the subject of Order/Resolution
reconsideration within fifteen (15) days from notice
thereof, with proof of service to the adverse party. 632
633 Supra, Section 2, Rule 52
634 Supra, Section 3, Rule 52
626 People v Teehankee, 269 SCRA 54. 635 Supra, Section 4, Rule 52
627 Supra, Section 4, Rule 51 636 Supra, Section 1, Rule 53
628 Supra, Section 5, Rule 51 637 Supra, Section 2, Rule 53
629 Supra, Section 9, Rule 51 638 Supra, Section 4, Rule 53
630 Supra, Section 10, Rule 51 639 Supra, Section 3, Rule 53
631 Supra, Section 11, Rule 51 640 Supra, Section 1, Rule 54
632 Supra, Section 1, Rule 52 641 Supra, Section 2, Rule 54

58
Judgments and Final Resolutions shall be published in the resolution shall be attached to the original copy intended
Official Gazette and in the Reports officially authorized by for the court (2) affidavits of witnesses (3) certification
the Court, in the language originally written, together with against forum shopping652
a syllabi. If not so published, a memoranda shall be made
and published in the like manner. 642 The publication is to WHAT THE COURT OF APPEALS WILL DO UPON
be prepared by the Reporter. 643 Those of the Supreme FILING
Court are called Philippine Reports, while those of the
Court of Appeals are called Court of Appeals Reports. 644 1.If no substantial merit, it will be dismissed outright with
specific reasons for such dismissal.
RULE 47-ANNULMENT OF JUDGMENT
2.If prima facie merit be found, it shall be given due
Annulment of judgment covers judgments of the Regional course and summons shall be served on the respondent.
Trial Court for which the ordinary remedies of new trial, IF SO, procedure in ordinary civil cases shall be followed
appeal, petition for relief or other appropriate remedies but reception may be referred to a member of the Court or
ARE NO LONGER AVAILABLE THROUGH NO FAULT OF a Regional Trial Court judge.653
THE PETITIONER645
EFFECT OF JUDGMENT IN A PETITION FOR
1.An important condition for the availment is that the ANNULMENT
petitioner failed to move for new trial, or appeal from, or
file a petition for relief against, or take other appropriate It shall set aside the questioned judgment / final order /
remedies through no fault attributable to him. If he failed to resolution and render the same null and void – without
avail of the other remedies through his own fault, he would prejudice to the refiling of the original action in the proper
then benefit from his inaction or negligence. 646 He must court . However, where it is set aside by reason of extrinsic
allege non availment of other remedies through no fault of fraud, the court on motion, may order the trial court to try
the petitioner, otherwise the petition will be dismissed. 647 the case again as if a timely motion for new trial has been
granted therein.654
1.1 Note that the correctness of the judgment is not in
issue as a petition for annulment is not in issue.648 The prescriptive period for the refiling of the original action
shall be deemed suspended from the filing of such original
1.2 It is a remedy that may be availed of by those who action until finality of the judgment of annulment.
are not even parties to the judgment or to annul even HOWEVER, the prescriptive period is or shall not be
judgments that have been fully executed.649 suspended where extrinsic fraud is attributable to the
plaintiff is original action.655
2.It is available only on grounds of: (a) EXTRINSIC
FRAUD but only when it was not availed of or could have SCOPE OF RELIEF
been availed of in a motion for new trial or petition for relief
OR (b) LACK OF JURISDICTION It may include award of damages, attorney’s fees and
other relief. If already executed, restitution or other relief
2.1 There is extrinsic fraud when the unsuccessful as justice / equity may warrant.656
party had been prevented from exhibiting fully his case, by
fraud or deception practice upon him by his opponent, as IF ALSO APPLIES TO A PETITION TO ANNUL
keeping him away from the court, or where the defendant JUDGMENT / FINAL ORDER OF A MUNICIPAL TRIAL
never had knowledge of the suit, being kept in ignorance COURT BUT IS FILED WITH REGIONAL TRIAL COURT
by the acts of the plaintiff.650 and treated as an ordinary civil action. 657 All sections
except Section 5 pertaining to dismissal or determination
3.The period for its filing if based on extrinsic fraud is of prima facie merit shall apply.
within 4 years from its discovery, or if based on lack of
jurisdiction before it is barred by laches or estoppel.651 RULE 65- CERTIORARI / PROHIBITION AND
MANDAMUS
FILING / CONTENTS OF THE PETITION
WHAT IS CERTIORARI
Filing is by verified petition alleging therein with
particularity, the facts and the law relied upon for Special Civil Action against a tribunal board or officer
annulment as well as supporting petitioner’s good and exercising judicial or quasi-judicial function which is
substantial cause of action / defense, as the case may be. alleged in a verified petition filed by an aggrieved party to
Containing (1) certified true copy of judgment / final order / have acted without jurisdiction or in excess of its
jurisdiction or with grave abuse of discretion amounting to
642 Supra, Section 1, Rule 55 lack or excess of jurisdiction, AND there is no appeal, or
643 Supra, Section 2, Rule 55 any plain speedy and adequate remedy in the ordinary
644 Supra, Section 3, Rule 55 course of law, praying for the judgment annulling /
645 Supra, Section 1, Rule 47
646 Manipor v Ricafort, 407 SCRA 298 652 Supra, Section 4, Rule 47
647 Ancheta v Ancheta, 424 SCRA 725 653 Supra, Sections 5 and 6, Rule 47
648 Republic v Heirs of Sancho Magdato, 340 SCRA 115 654 Supra, Section 7, Rule 47
649 Malolos v Dy, 325 SCRA 827 655 Supra, Section 8, Rule 47
650 Leonardo v ST Best, 422 SCRA 347 656 Supra, Section 9, Rule 47
651 Supra, Section 3, Rule 47 657 Supra, Section 10, Rule 47

59
modifying the proceedings of such, tribunal board officer, therein or otherwise granting such incidental reliefs as law
tribunal and granting such incidental reliefs as law and and justice may require.659
justice may require.658
DISTINGUISHED FROM CERTIORARI
DISTINGUISHED FROM PETITION FOR REVIEW ON
CERTIORARI In CERTIORARI the object is to correct the respondent’s
acts by annulling proceedings, while in PROHIBITION it is
Certiorari as distinguished from a Petition for Review on to prevent the commission of an act by stopping
Certiorari: (a) In the former, the issue is whether the lower proceedings. In the former, the assailed acts have already
court acted without, in excess of or with grave abuse of been done, while in the latter the assailed acts are about
discretion, while in the latter the issue is based on to be done or are being done. In the former, the
questions of law (b) in the former, it is addresses an respondent performs judicial or quasi- judicial, while in the
interlocutory order prior to appeal of a judgment when latter, the respondent performs judicial, quasi-judicial
there is no appeal or any other speedy or adequate functions or ministerial functions.
remedy, while the latter involves a review of
judgment/final order/ resolution on the merits (c) the WHAT CONSTITUTES JUDICIAL AND QUASI-JUDICIAL
former is filed within 15 days from notice of judgment / POWER
order, while the latter is filed not later than 60 days from
notice of the resolution sought to be assailed or denial 1.The exercise of judicial function is to determine what the
of a motion for reconsideration (d) the former shall stay the law is, and what the legal rights of parties are, with respect
judgment /final order or award, while the latter does not to a matter is controversy; and whenever an office is
stay the order or resolution unless a temporary restraining clothed with that authority, and undertakes to determine
order or preliminary injunction is issued (e) In the former, those questions, he acts judicially. 660
the petitioner/respondent are the original parties in the
case and the lower court is not impleaded, while in the 2.A quasi-judicial act or function is a judicial act or function
latter, the aggrieved party is the petitioner against the performed by one who is not a judge.
against the lower court, agency and the prevailing party (f)
the former does not require the filing of a motion for WHAT CONSTITUTES GRAVE ABUSE OF DISCRETION
reconsideration prior to filing, while the latter requires a
motion for reconsideration prior to filing (g) in the former, Capricious and whimsical exercise of judgment as may be
the court is exercising appellate jurisdiction, while in latter, equivalent to lack or excess of jurisdiction.
it is exercising original jurisdiction (h) the former can only
be filed in the Supreme court, while the latter may be filed WHAT IS MANDAMUS
with Supreme Court, Court of Appeals, or the Regional
Trial Court A special civil action against a tribunal, corporation, board,
or officer alleged in a verified petition filed by an aggrieved
EXCEPTIONS TO REQUIREMENT AS TO MOTION FOR party to have unlawfully neglected the performance of an
RECONSIDERATION PRIOR TO FILING A PETITION act which the law specifically enjoins as a duty resulting
FOR CERTIORARI UNDER RULE 65 from an office, trust or station, or unlawfully excluded
another from the use and enjoyment of a right or office to
(1)order is a patent nullity – court a quo has no jurisdiction which such other is entitled, and there is no plain, speedy
(2) questions have been raised in certiorari have been duly or adequate remedy in the ordinary course of the law,
raised and passed upon by lower court (3)urgent necessity praying that judgment be rendered commanding the
for resolution (4)where a motion for reconsideration will be respondent, immediately or at some other time specified
useless (5)petitioner is deprived of due process, there is by the Court to do the act required to be done to protect
extreme urgency for relief (6) in criminal case, relief from the rights of the petitioner, pay damages sustained by
order of arrest is urgent, and grant of relief by trial court is reason of the wrongful acts.
not probable (7) proceedings in lower court are a nullity
for lack of due process (8) issue is purely of law or where 2 ASPECTS OF MANDAMUS
public interest is involved.
The aspects of Mandamus are: (a) respondent unlawfully
WHAT IS PROHIBITION neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust
Special civil action against a tribunal, corporation, board, or station OR (b) respondent unlawfully excludes another
or person exercising JUDICIAL – QUASI JUDICIAL – from the use and enjoyment of a right or office to which
MINISTERIAL FUNCTION which is alleged by an such other is entitled.
aggrieved party to be acting or about to act without
jurisdiction, in excess of its jurisdiction or with grave abuse 1.The legal right of the plaintiff (petitioner) to the thing
of discretion amounting to lack or excess of jurisdiction demanded must be well defined, clear and certain. The
and there is no appeal, or any plain, speedy and adequate corresponding duty of the defendant (respondent) to
remedy in the ordinary course of the law praying that perform the required act must also be clear and specific. 661
judgment be rendered commanding the respondent to
desist from further proceeding in the action or proceeding
659 Supra, Section 2, Rule 65
660 Municipal Council of Lemery, Batangas v Provincial Board
of Batangas, 56 PHIL 260
658 Supra, Section 1, Rule 65 661 Enriquez, Jr v Bidin, 47 SCRA 183

60
2.Mandamus lies only to compel performance of a respondents and cost awarded shall be against private
ministerial duty but not to compel performance of a respondent only.
discretionary duty.662 In granting mandamus, respondent is
commanded to perform the particular act or required to be Unless otherwise directed by the court, the public
done and to pay the damages sustained by the petitioner respondents shall not appear or file an answer or
by reason of the wrongful acts of the respondent. comment. If elevated to a higher court the public
respondents shall be nominal parties, and unless directed
3.An act is ministerial when officer or tribunal performs in shall not appear or participate in the proceedings
a given state of facts, in a prescribed manner in obedience therein.664
to the mandate of a legal authority without regard to the
exercise of his own judgment. If given the authority to ORDER TO COMMENT
decide how and when, it is discretionary.
If petition is sufficient in form or substance, a comment will
4.Mandamus does not lie to correct / enforce contractual be required, not a motion to dismiss. 665 Orders expediting
obligations. proceedings / temporary restraining order / injunctions for
the preservation of the rights of the parties may be issued
HOW DISTINGUISHED FROM BUT the filing of the petition shall not interrupt the course
CERTIORARI/PROHIBITION of the principal case unless a Temporary Restraining
Order or Injunction is granted enjoining the public
In MANDAMUS, the respondent is exercising ministerial respondent from further proceeding.666
power and he has unlawfully neglected to perform it or
excluded a party from occupying or enjoying the privilege ACTIONS THAT MAY BE TAKEN SUSBEQUENTLY
of an office to which he is lawfully entitled and the object is
to COMPEL action, while in CERTIORARI, the respondent Court may hear or require filing of memoranda. If it finds
is exercising judicial or quasi-judicial powers without the allegations to be true, it shall render judgment for the
jurisdiction or with grave abuse of discretion amounting to relief prayed for or to which petitioner is entitled.
an excess or lack of jurisdiction and the object is to
CORRECT. In PROHIBITION , the respondent is It may also dismiss if patently without merit, prosecuted
exercising judicial, quasi-judicial or ministerial powers and manifestly for delay or issues are too unsubstantial to
he is acting or about to act without jurisdiction or with require consideration.667 (Section 8)
grave abuse of discretion amounting to an excess or lack
of jurisdiction, and the object is to PREVENT SERVICE / ENFORCEMENT OF JUDGMENT –

WHEN MAY IT BE FILED Certified copy of judgment shall be served in such manger
as the court may direct and disobedience thereto shall be
Not later than 60 days from notice of the assailed punished as contempt. Execution may issue for any
judgment, order or resolution. BUT if a timely motion for damages / cost in accordance with Section 1, Rule 39. 668
reconsideration is filed, whether required or not, the 60
days period shall be counted from notice of the denial of RULE 66 -QUO WARRANTO
the motion.663 An extension may be granted for compelling
reasons but in no case to exceed 15 days. Quo Warranto is a special civil action brought by verified
petition in the name of the Republic of the Philippines
WHERE ELSE CAN BE FILED OTHER THAN THE against: (a) person who usurps, intrudes into or unlawfully
COURT OF APPEALS holds or exercises a public office, positions or franchise (b)
public officer who performs an act that constitutes a
The petition may be filed in the Supreme Court, the ground fro forfeiture of his office (c) an association that
Regional Trial Court if relates to an act / omission of a acts as a corporation within the Philippines without legally
lower court, corporation, board, officer or person within its being incorporated or without lawful authority to act. 669
territorial jurisdiction, or the Sandiganbayan, if in aid of its
appellate jurisdiction 1.It literally means “ by what authority”. 670

IT IS FILED WITH THE COURT OF APPEALS 2.An individual can bring a quo warranto action in his
name when he is claiming to be entitled to a public office
Whether or not in aid of its appellate jurisdiction, when it or position usurped or exercised by another may bring an
involves acts / omissions of quasi-judicial body, unless action.671
otherwise provided.
3.A quo warranto action MUST be commenced by the
PARTIES TO BE IMPLEADED Solicitor General or Public Prosecutor when directed by

In addition to the public respondents, the petition shall also 664 Supra, Section 5, Rule 65
join the person/s interested in sustaining the proceedings 665 Supra, Section 6, Rule 65
and it shall be the duty of the private respondent to appear 666 Supra, Section 7, Rule 65
and defend both in his behalf and that of the public 667 Supra, Section 8, Rule 65
668 Supra, Section 9, Rule 65
669 Supra, Section 1, Rule 66
662 Calderon v Sol, 215 SCRA 876 670 Tecson v Comelec, 424 SCRA 277
663 Supra, Section 4, Rule 65, as Amended by A.M. 00-2-03-SC 671 Supra, Section 5, Rule 66

61
the President or upon complaint or otherwise he has good
reason to believe that a cause can be established by DISTINGUISH BETWEEN QUO WARRANTO AS TO
proof.672 If by complaint, a request for indemnity for NATURE OF POSITION
expenses and costs may be required to be deposited. 673
In quo warranto involving an ELECTIVE POST the issue is
3.BESIDES the Court of Appeals, the action can be the eligibility of candidate elected, while in that involving
brought before the Supreme Court, a Regional Trial Court an APPOINTIVE POST the issue is the legality of
exercising jurisdiction over the area where the appointment. In the former, if the respondent is found
respondent/s reside BUT, if the Solicitor General ineligible, the found ineligible, 2 nd highest vote getter, even
commences the action, he may bring it before a Regional if eligible cannot be declared elected, while in the latter,
Trial Court in Manila, the Court of Appeals or the Supreme the resolution shall determine who has been legally
Court.674 appointed and declare who is entitled to occupy the office.

4.WHEN FILED: within 1 year from accrual of the cause of RULE 56 – PROCEDURE IN THE SUPREME COURT
action (ouster or right to hold position) Damages if
recoverable must be in another action filed within 1 year ORIGINAL CASES
from entry of judgment.675
The cases cognizable by the Supreme Court are
5.PARTIES and CONTENTS of the petition: When the Certiorari, Mandamus, Prohibition, Quo Warranto, Habeas
action is against the person for usurping a public office, Corpus, Disciplinary Actions against members of the
position or franchise, the petition shall set forth the name Judiciary and Attorneys, Cases affecting Ambassadors,
of the person who claims to be entitled thereto, if any with Public Ministers or Consuls.681
an averment of his right to the same and that the
respondent is unlawfully in possession thereof. All persons In resolving the cases, applicable rules in the Court of
who claim to be entitled may be made parties, and their Appeals are also applicable in the Supreme Court. 682
respective rights may be determined in the same action. 676
APPEALED CASES
6.REDUCTION OF TIME for pleadings and other
proceedings may be directed by the Court to secure the The only mode of appeal to the Supreme Court is by
most expeditious determination of the matters involved Petition for Review on Certiorari, except in criminal cases
therein consistent with the rights of the parties. It can also where penalty is death, reclusion perpetua, and life
take precedence over other civil matters pending before imprisonment683 NOTE: Except in appeal of criminal cases
the Court.677 where penalty is death, reclusion perpetua, life
imprisonment, appeal by Notice of Appeal, will be
7.A JUDGMENT where the respondent is found guilty of dismissed684 AND if by certiorari from the Regional Trial
usurping, intruding into, or unlawfully holding or exercising Court to the Supreme Court, raising issues of fact may be
a public office, position or franchise shall state that he be referred to the Court of Appeals for decision or appropriate
OUSTED AND ALTOGETHER EXCLUDED THEREFROM, action. Determination of the Supreme Court as to whether
and that the rights of the PETITIONER OR RELATOR, or not there are issues of fact is FINAL.
meaning the real party in interest, be determined as justice
requires.678 It can also include a judgment for costs679 All appealed cases shall be governed by and disposed of
in accordance with the applicable provisions of the
8.The RIGHTS of a person entitled to public office include Constitution, Rule 45 (Petition for Review on Certiorari)
the right to demand of the respondent all books and Rule 48 (Preliminary Conference), Sections 1 (When
papers in his custody or control appertaining to the office, submitted) 2 (Who renders judgment) and 5 to 11 ( Form
otherwise he may be punished for contempt.680Note: the to Execution) Rule 51, Rule 52 (Motion for
damages aspect must be brought in another action. Reconsideration) and Rule 56.685

DISTINGUISH BETWEEN QUO WARRANTO AND GROUNDS FOR DISMISSAL OF AN APPEAL


ELECTION PROTEST
Motu propio or upon motion of respondent, it may be
In QUO WARRANTO the issue is the disqualification / dismissed on (1) failure to take appeal within the
ineligibility of the proclaimed candidate, in a PROTEST the reglementary period (2) lack of merit (3) failure to pay
issue is an irregularity in the election. If in the former, if the docket and lawful fees (4) failure to comply with
respondent is ineligible, the petitioner does not occupy the requirements of proof of service and documents (5) failure
position, while in the latter, the protestant can occupy the to comply with any circular, directive or order of the
position if he obtains a plurality of the votes. Supreme Court without justifiable cause (6) error in the
choice or mode of appeal (7) that it is not appealable to
672 Supra, Section 2, Rule 66 the Supreme Court686
673 Supra, Section 3, Rule 66
674 Supra, Section 7, Rule 66
675 Supra, Sections 10 and 11, Rule 66 681 Supra, Section 1, Rule 56
676 Supra, Section 6, Rule 66 682 Supra, Section 2, Rule 56
677 Supra, Section 8, Rule 66 683 Supra, Section 3, Rule 56
678 Supra, Section 9, Rule 66 684 Supra, Section 6, Rule 56
679 Supra, Section 12, Rule 66 685 Supra, Section 4, Rule 56
680 Supra, Section 10, Rule 66 686 Supra, Section 5, Rule 56

62
IF SUPREME COURT OPINION IS EQUALLY DIVIDED 4.Action against a party guilty of fraud in contracting the
OR NECESSARY MAJORITY CANNOT BE OBTAINED debt or incurring the obligation upon which the action is
brought or in the performance thereof.
It will be deliberated further. If after deliberation, no
decision is reached, the original action commenced in the 4.1 The fraud should be committed either upon
court shall be dismissed. If appealed, it shall stand contracting the debt or incurring the obligation sued upon
affirmed. If on incidental matters, it shall be denied.687 or in the performance thereof. A debt is fraudulently
contracted if at the time of contracting it, the debtor has a
PROVISIONAL REMEDIES preconceived plan or intention not to pay.688

RULE 57 – PRELIMINARY ATTACHMENT 5.Action against a party who has removed or disposed of
his property, or is about to do so, with intent to defraud
WHAT IS PRELIMINARY ATTACHMENT creditors.

It is a provisional remedy issued upon order of the court 6.Action against a party who does not reside and is not
where the action is pending to LEVY upon the properties found in the PI or on whom summons may be served by
of the defendant therein, the same to be held thereafter by publication.689
the sheriff as security for the satisfaction of whatever
judgment might be rendered in favor of the attaching HOW APPLIED FOR
creditor.
1.Generally, by motion or is incorporated in the complaint,
It can also extend to property of the defendant in the accompanied by an affidavit, containing the following: (a) It
hands of 3rd persons or money owed by 3 rd persons to the is executed by the applicant / or some person who is
defendant. This is also known as GARNISHMENT aware or personally knows the facts (b) A sufficient cause
of action exists (c) That ground/s as stated in Section 1
If judgment has become final and executory, there is a (d) There is no other sufficient security for the claim sought
final attachment which is also known as Levy on Execution to be enforced by the action (e) The amount due the
applicant or value of the property that he is entitled to
WHEN CAN IT BE AVAILED OF recover, IS AS MUCH AS THE SUM for which the ORDER
is granted, above all legal counterclaims690
At any time before entry of judgment.
2.A BOND must then be executed to the adverse party in
DISTINCTIONS BETWEEN PRELIMINARY the amount fixed by the court, CONDITIONED that the
ATTACHMENT AND GARNISHMENT latter will pay all costs which may be adjudged and all
damages sustained by reason of the attachment, if the
In PRELIMINARY ATTACHMENT there are two parties, court shall finally adjudge that the applicant was not
the plaintiff or proper party and the defendant, while in entitled thereto.691
GARNISHMENT, there is an additional party in the
person of the garnishee. In the former, property is actually WHEN ISSUED / BY WHOM
seized and a lien is created thereon, while in the latter,
there is no actual seizure. Either ex parte or on motion with notice and hearing, by
the court in which action is pending, by the Court of
GROUNDS Appeals or the Supreme Court and must require the
Sheriff to attach so much of the property in the Philppines
1.Action for recovery of money or damages other than of the party against whom it is issued NOT EXEMPT
moral / exemplary, on a cause of action that arise from FROM EXECUTION as may be sufficient to satisfy claim
law, contract, quasi – contract, delict, or quasi-delict UNLESS other party makes a deposit or gives a bond in
against a party who is about to depart from the Philippines an amount equal to that fixed in the order, exclusive of
with intent to defraud creditors. costs. Note: that several writs may be issued at the same
time to the sheriffs of the courts of different judicial
2.Action for money or property embezzled or fraudulently regions.692
misapplied or converted to his own use by a public officer,
an officer of a corporation, or an attorney, factor, broker, 1.IT IS ISSUED EX-PARTE when the ground is justified
agent or clerk in the COURSE OF HIS EMPLOYMENT as further by the fact that the defendant might abscond or
such, or by any person in a FIDUCIARY CAPACITY, or for dispose of his property before the writ is issued. It CAN
WILLFUL VIOLATION of such duty. TAKE PLACE even before he is summoned BUT note that
it cannot be enforced unless it is preceded or
3.Action to recover possession of property unjustly or contemporaneously accompanied by SERVICE OF
fraudulently taken, detained or converted when the SUMMONS, together with complaint, application for
property, or any part thereof, has been concealed, attachment, affidavit, bond, order and the writ itself. This is
removed or disposed of to prevent its being found or taken
by the applicant or authorized person. 688 FCY Construction Group Incorporated v Court of Appeals,
324 SCRA 270
689 Supra, Section 1, Rule 57
690 Supra, Section 3, Rule 57
691 Supra, Section 4, Rule 57
687 Supra, Section 7, Rule 56 692 Supra, Section 2, Rule 57

63
the PRIOR OR CONTEMPORANEOUS RULE. NOTE: An f. If in custodia legis – copy of writ is filed if the proper
Alias summons belatedly filed cannot be deemed to have court or quasi-judicial agency and notice served on the
cured the FATAL DEFECT in the enforcement of the writ of custodian of the property. 697
preliminary attachment.693
3.1 Effect of attachment of debts, credits and similar
2.The prior or contemporaneous rule does not apply personal property – persons who have them are liable to
when: (a) Summons could not be served personally or by the applicant for the amount of such credits UNTIL the
substituted service despite diligent efforts (b) Defendant is attachment is discharged, judgment is satisfied or debts
a resident but temporarily out of the PhiIippines (c) are paid698 (Section 8)
Defendant is a non-resident of the Philippines (d) It is an
action in rem or quasi in rem 3.2 Effect if on property belonging the estate of the
decedent, it will not impair the powers of the executor /
2.1 An IN REM action is directly against the thing to administrator or representative – BUT they shall report the
determine title to or affect its interest, while a QUASI-IN- attachment to the court when any petition for distribution is
REM is a proceeding against the thing for satisfaction a filed – and in the order made upon such petition – the
claim against a person by adjudication of rights against property may be awarded to the heir / legatee / devisee ,
property over which jurisdiction can be obtained but the property attached shall be delivered to the sheriff,
subject to the claim of the heir, legatee, devisee or person
BY WHOM / HOW ENFORCED claiming under him.699 (Section 9)

1. By the sheriff, without delay and with all 3.3 THERE CAN ALSO BE EXAMINATION OF
reasonable diligence THESE PERSONS TO DETERMINE IF THERE ARE
PROPERTIES THAT MAY BE ATTACHED IN THEIR
1.1 Note that Rule 57 does not provide any lifetime for POSSESSION700
a writ of preliminary attachment unlike a writ of execution.
694
What the law provides are enforcing the writ without 4.Sheriff shall also make a RETURN without delay,
delay and making sheriff’s return thereon without delay. containing full statement of his proceedings under the writ
and a complete inventory of property attached, together
2. He may attach only such property not exempt from with a copy of a counter-bond if one has been filed,
execution, as may be sufficient to satisfy the demand furnishing copies thereof on the applicant.701
UNLESS defendant makes a deposit or give a counter
bond in an amount equal to the bond fixed by the court or 5.Property is to be held and disposed of in the following
to the value of the property attached. 695 NOTE: That the manner:
attachment shall proceed nevertheless until there have
been proceedings undertaken to discharge the a.If judgment is recovered by the attaching party
attachment. If found to be insufficient / or is not filed, a
NEW ORDER OF ATTACHMENT MAY BE APPLIED 1. Paying to obligee proceeds of all sales of
FOR.696 perishable property or others sold pursuant to order of the
court as shall be necessary to satisfy the judgment.
3.Attachment should be in accordance with the following:
2. If there is a balance, selling so much of the real or
a.If real property, it requires the filing with the Office of the personal property as may be necessary to satisfy the
Register of Deeds of a copy of the order together with balance, if enough for that purpose, remains in the hands
notice that property or interest therein is attached. of the sheriff or clerk of court. Note that there can be an
EARLY SALE if it is made to appear to the court in which
b.If personal property capable of manual delivery taking it the action is pending that the property attached is
and safely keeping it in custody after issuance of proper perishable, or that the interest of all the parties to the
receipt. action will be subserved by the sale of the properties at
public auction, the proceeds to be deposited with the court
c. If stocks / shares / interest in companies, by leaving with to abide the judgment.702
the president or managing agent a copy of the writ and
notice. 3. Collecting from all persons having in their
possession credits belonging to the obligor or debts due
d.If debts, credits, bank deposits and other like personal him
properties not capable of manual delivery – leaving with
such persons owing debt, holding credits or in possession A REPORT / RETURN of all proceedings must be filed
a copy of the writ and notice. with the court and copies furnished all parties.703

e.If interest is in the estate of a decedent, by virtue of his


being an heir, legatee, or devisee, by serving the writ /
notice on executor or administrator. 697 Supra, Section 7, Rule 57
698 Supra, Section 8, Rule 57
699 Supra, Section 9, Rule 57
693 Mangila v Court of Appeals, 387 SCRA 162 700 Supra, Section 10, Rule 57
694 Roque v Court of Appeals, 93 SCRA 540 701 Supra, Section 6, Rule 57
695 Supra, Section 5, Rule 57 702 Supra, Section 11, Rule 57
696 Supra, Section 12, Rule 57 703 Supra, Section 15, Rule 57

64
4. If there be a balance, he proceeds to collect as NOTE: a motion to discharge / dissolve is not allowed if
upon ordinary execution. If there be a surplus, it must be the preliminary attachment is issued on a ground which is
returned. at the same time the applicant’s cause of action as that is
TANTAMOUNT TO TRIAL ON MERITS. Example: action
5.If judgment becomes executory, the surety/ies shall for money, property embezzled, party guilty of fraud in
become charged on the counter-bond and bound to pay incurring the obligation
the judgment obligee upon demand, the amount due on
the judgment, which amount can be recovered after notice WHAT HAPPENS IF PROPERTY IS CLAIMED BY A 3 RD
and summary hearing in the same action.704 PERSON

6. If money was deposited in LIEU of a bond, it is Claim is to be initiated by affidavit. Upon filing, the sheriff
applied under direction of the Court and if judgment is not under obligation to keep the property, unless attaching
against attaching party, the whole sum deposited is party files a bond. No claim for damages for the taking or
refunded. 705 keeping of the property may be filed / enforced against the
bond unless the action is filed within 120 days from date of
b.If judgment is for adverse party – the filing of the bond. 710

1. All proceeds of sales or money collected by the RULE 58 – PRELIMINARY INJUNCTION


sheriff and property attached shall be delivered to the
party whose properties were attached and the order of A Preliminary Injunction isan order granted at any stage of
attachment discharged. an action or proceeding prior to judgment or final order,
requiring a party or a court, agency, person to refrain from
2.Claim for damages before trial, perfection of appeal, or a particular act or acts. It may also require the
judgment becomes executory, with due notice to the performance of an act, if such it is called a preliminary
attaching party and surety setting forth the facts showing mandatory injunction.711
his right to damages in instances where there is improper,
irregular or excessive attachment, are to be awarded after 1.Note that Injunction may also exist as a cause of action.
hearing and is to be included in the judgment in the main This is best illustrated by the appropriate remedies for
case. obligations to do or not to do. Obligations to do, the
remedy is specific performance. Obligation not to do,
2.1 If the judgment favorable to him is rendered by the remedy is injunction.
appellate court, he must claim the damages during the
pendency of the appeal by filing the application in the PRIMARY PURPOSE OF INJUNCTION
appellate court, before the judgment becomes executory. Is to preserve the status quo or the last actual, peaceable,
The appellate court may allow the application to be heard uncontested status which precedes the pending
and decided by the trial court. controversy.
WHO MAY GRANT
2.2 NOTHING, likewise, prevents the party against
whom attachment is issued from recovering in the same Court where the action is pending. If pending in the Court
action the damages awarded to him from any property of of Appeals or the Supreme Court, it may be issued by the
the attaching party not exempt from execution should the Court or any member thereof.712
bond or deposit be insufficient.706
GROUNDS FOR ISSUANCE
WHAT ARE THE REMEDIES OF A PARTY WHOSE
PROPERTIES ARE ATTACHED 1. The applicant is entitled to the relief demanded,
and the whole or part of the relief consists in restraining
1. Discharge the attachment by making a cash the commission / continuance of the act/s complained of,
deposit or counter bond.707 NOTE: That bond may be or in requiring the performance of an act/s, for a limited
subject to RECOVERY by attaching party; period or perpetually.

2. Discharge or set aside the attachment on the 2. The commission / continuance / non performance
ground that it was improperly issued or irregularly of the act/s during litigation will probably work injustice to
enforced, OR bond is insufficient OR what has been the applicant, OR
attached is excessive, the discharge is only for the
excess.708 3. That a party, court, agency or a person is doing,
threatening, or is attempting to do or is procuring or
3. Claim for damages on account of improper, suffering to be done, some act/s in violation of the rights of
irregular, or excessive attachment. 709 the applicant respecting the subject of the action and
tending to render judgment ineffectual.713

REQUISITES FOR ISSUANCE OF AN INJUNCTION


704 Supra, Section 17, Rule 57
705 Supra, Section 18, Rule 57
706 Supra, Section 20, Rule 57 710 Supra, Section 14, Rule 57
707 Supra, Section 12, Rule 57 711 Supra, Section 1, Rule 58
708 Supra, Section 13, Rule 57 712 Supra, Section 2, Rule 58
709 Supra, Section 20, Rule 57 713 Supra, Section 3, Rule 58

65
1.Existence of a right to be protected bond is filed OR if it appears that extent is too great, it may
be modified. 717
2.Acts against which the injunction is to be directed are
violative of the right 2.It may also be dissolved on objection to the sufficiency
of the bond, or upon finding of insufficiency, the failure of
These must clearly appear in the allegations in the surety to justify or filing of a sufficient bond. If it the
complaint – OTHERWISE – it may be ground for its objection is to the bond of the party enjoined, the
outright denial for INSUFFICIENCY, which is apparent in injunction shall be granted or restored. 718
the application itself OR if already granted, may be
dissolved.714 JUDGMENTS OR ORDERS IN INJUNCTION

MAY IT BE ISSUED EX-PARTE – 1.ORDER DISCHARGING IS IMMEDIATELY EFFECTIVE

Its issuance requires (1) a hearing (2) reception of 2.A Final Injunction is granted if it appears that the
evidence with opportunity to cross (3) finding that applicant is entitled to have the act/s permanently enjoined
prohibited acts are threatened to be committed or that or confirming the preliminary mandatory injunction.719
irreparable injury would be inflicted upon the applicant.
3.Judgments eventually rendered may include damages
IF GREAT / IRREPARABLE INJURY WOULD RESULT against a party and sureties. 720
BEFORE THEN: the Court BY WAY OF EXCEPTION TO
THE RULE ON NON EX-PARTE ISSUANCE (1) can issue 4.No injunction can issue against the acts of a co-equal
a Temporary Restraining Order for 20 days after a court, except in a 3rd party claim where claimant
summary hearing OR If it is of extreme urgency, it may vindicates his right by a separate action.
issue ex-parte a 72 hour Temporary Restraining Order.
The lifetime of a Temporary Restraining Order is 20 days if RULE 59 – RECIEVERSHIP
issued by a trial court, 60 days if issued by the Court of
Appeals, and until further orders if issued by the Supreme WHEN IS A RECEIVER APPOINTED
Court. Note that within the 20 day effectivity period of the
Temporary Restraining Order, the court must order the 1.When it appears from a verified application, and as such
party or person to show cause why the injunction should other proof as the court may require, that the party
not be granted, determine also whether or not the applying for the appointment of a receiver has an interest
preliminary injunction should be granted, and accordingly in the property or fund which is the subject of the action or
issue the order. 715 proceeding as such property / fund is in danger of being
lost, removed or materially injured unless a receiver be
HOW OBTAINED appointed to administer and preserve it.

A preliminary injunction or temporary restraining order is 2.When it appears in an action by the mortgagee for the
obtained upon (1) filing of a verified application showing foreclosure of mortgagee that the property is in danger of
facts entitling the applicant to the relief demanded, (2) being wasted, dissipated or materially injured – and that its
unless exempted, filing of a bond in an amount fixed by value is probably insufficient to discharge the mortgage
the court, to the effect that applicant will pay all damages debt or that the parties have so stipulated in the mortgage
that may be sustained if the court should finally decide that contract.
applicant was not entitled thereto (3) if included in a
complaint / initiatory pleading it shall be raffled only after 3.When after judgment, to preserve the property during
notice to and in the presence of the adverse party. In any the pendency of an appeal, or to dispose of it according to
event, notice shall be preceeded by or contemporaneously the judgment, or to aid in execution when the execution is
accompanied by service of summons, together with returned unsatisfied or the judgment obligor refuses to
affidavit and bond (PRIOR OR CONTEMPORANEOUS apply his property in satisfaction of the judgment or
RULE) but such will not be applicable if defendant / otherwise carry the judgment into effect.
adverse party cannot be served personally / substituted
service, temporarily absent or is a non-resident. The 4.Whenever in other cases, it appears that the
matter shall thereafter be acted upon only after all parties appointment of a receiver is the most convenient and
are heard in a summary hearing, conducted within 24 feasible means of preserving, administering or disposing
hours after sheriff’s return of service.716 of property in litigation.

GROUNDS FOR OBJECTION / DISSOLUTION WHO APPOINTS A RECEIVER

1.The application may be denied or if granted, dissolved, The court where action is pending or the Court of
upon showing of insufficiency, or while entitled to an Appeals, the Supreme Court or a member thereof. During
injunction, the issuance or continuance thereof will cause appeal, the appellate court may allow the application for
irreparable damage to the person enjoined while the the appointment to be filed in the court of origin, which can
applicant can be compensated for the damages and a

717 Supra, Section 6, Rule 58


714 Supra, Section 6, Rule 58 718 Supra, Section 7, Rule 58
715 Supra, Section 5, Rule 58 719 Supra, Section 9, Rule 58
716 Supra, Section 4, Rule 58 720 Supra, Section 8, Rule 58

66
also decide on the same to be subject to the control of 1.By verified application. Note that more than 1 receiver
said court.721 may be applied for and appointed by the court. NOTE:
That receivership may be a principal action or an ancillary
1.A receiver of real or personal property, which is the remedy.
subject of the action, may be appointed by the court when
it appears from the pleadings or such other proof as the 2.If application is granted – the receiver shall await the
judge may require, that the party applying for such filing by the applicant of a bond executed to the party
appointment has: against whom the application is presented in an amount
(a) an actual interest in it, and (b) that (a) such property is fixed by the Court to the effect that the applicant will pay
in danger of being lost, removed, or materially injured; or such party all damages that he may sustain by reason of
whenever it appears to be the most convenient and the appointment in case the same has been procured
feasible means of preserving or administering the property without SUFFICIENT CAUSE – and the court in its
in litigation.722 discretion may require an additional bond to be filed as
2.A receiver is a person appointed by the court or by a further security for damages.727
quasi-judicial administrative agency, in behalf of all the
parties for the purpose of preserving and conserving the 3.The APPLICATION may be denied or receiver
property and preventing its possible destruction or discharged when the adverse party files a bond executed
dissipation, if it were left in the possession of any of the to the APPLICANT to the effect that such party will pay to
parties. It is the duty of the receiver to administer the the applicant all damages he may suffer by reason of acts,
assets of the receivership estate; and in the management omissions or other matters specified as grounds in the
and disposition of the property committed to his application – If may also be discharged if it is shown that
possession, he acts in a fiduciary capacity and with appointment was obtained without sufficient cause.728
impartiality toward all interested persons.723
4.BEFORE entering upon his duties, the receiver shall be
3.A receiver is not an agent or representative of any party sworn to perform them faithfully and shall file a bond
to the action. He is an officer of the court exercising his executed to such person and in amount fixed by the court,
functions in the interest of neither plaintiff nor defendant, to the effect that he will faithfully discharge his duties and
but for the common benefit of al the parties in interest. He obey orders from the Court.729
performs his duties “subject to the control of the Court,”
and every question involved in the receivership may be 5.Copies of bonds ( Applicant and Reciever OR Adverse
determined by the court taking cognizance of the Party) shall be served on each interested party – who may
receivership proceedings. Thus, unauthorized contracts of except to its sufficiency or the surety. If found to be
a receiver do not bind the court in charge of receivership. insufficient or is not justified and a bond sufficient in
They are the receiver’s own contracts and not recognized amount and surety is not filed, the application shall be
by the court as contracts of the receivership.724 denied and the receiver discharged. If adverse party’s
bond is the one excepted to or found insufficient, the
WHAT ARE THE POWERS OF THE RECIEVER receiver shall be appointed or reappointed as the case
may be.730
Subject to the control of the court, HE CAN: (a) Bring and
defend actions in his own name (b)Take and keep WHEN TERMINATED
possession of the properties in controversy (c)To receive
rent (d)Collect debts, including power to compound and When the court, motu propio or upon motion, shall
compromise them, to pay debts (e)Make transfers (f) determine that the necessity for a receiver no longer
To divide money or other property (g) Other acts as may exists, it shall alter due notice, settle all accounts, direct
be authorized by the court delivery of the funds / property in his possession to the
person adjudged to be entitled to receive them and order
1.Funds though may only be invested by order of the court the discharge of the receiver from further duty. He is to be
upon written consent of all parties. No action may be filed allowed compensation as circumstances will warrant to be
by or against the receiver without leave of court to prevent taxed against defeated party or apportioned as justice may
harassment.725 require.731

2.Should there be refusal / neglect to deliver property to a Any judgment may include the amount, if any, to be
receiver – it is punishable by contempt and shall be liable awarded any party upon any bond.732
for the money or value of the property, plus damages
sustained as a consequence of the refusal / neglect. 726 RULE 60 – REPLEVIN

HOW APPLIED FOR WHAT IS REPLEVIN

It is a form of a principal remedy and provisional remedy /


721 Supra, Section 1, Rule 59 relief. It is also a mixed action partly in rem as far as the
722 Commodities Storage & Ice Plant Corp. versus Court of
Appeals, 274 SCRA 439 727 Supra, Section 2, Rule 59
723 Arranza versus B.F. Homes, Inc., 333 SCRA 799 728 Supra, Section 3, Rule 59
724 Pacific Mechandising Corp., versus Consolacion Insurance & 729 Supra, Section 4, Rule 59
Surety Co., Inc., 73 SCRA 564 730 Supra, Section 5, Rule 59
725 Supra, Section 6, Rule 59 731 Supra, Section 8, Rule 59
726 Supra, Section 7, Rule 59 732 Supra, Section 9, Rule 59

67
claim for recovery of personal property and in persona as replevin. In case of disagreement as to value, the court
far as the claim of damages, the object of which is shall determine the same. Note that no action on the bond
recovery of possession of personal property applied for at may be enforced unless filed within 120 days from filing.
the commencement of the action or at any time before
answer by the party praying for recovery of personal The sheriff shall not be liable for damages for the taking
property.733 and keeping of the property to any such 3 rd party if the
bond is filed. Nothing also prevents the 3rd party claimant
HOW or the applicant from vindicating their rights or claims in
the same action or in a separate action.
1.Filing of Affidavit containing the following: (a) that
applicant is the owner of the property claimed, particularly If writ is issued in the name of RP, no bond is required
describing it, or is entitled to possession of the same and the sheriff is to be represented by the SOLGEN and
(b)that property is a wrongfully detained by the adverse damages so adjudged are paid out of the National
party, alleging the cause of detention according to the best Treasury. 737
of his knowledge, information or belief (c) that property has
not been distrained or taken for a tax assessment or 3.SHERIFF must make return within 10 days after taking
payment of fine or seized under execution, preliminary of the property.738
attachment or in custodia legis, or if so seized, it is exempt
from seizure / custody (d) actual market value NOTE: Not 4.The JUDGMENT BY THE COURT shall include a
the probable value as declared by the applicant. Should determination who has a better right of possession to and
there be a dispute, it is to be resolved by the Court. value of the property and render judgment in the
alternative for delivery thereof to the party entitled or its
2.Filing of bond in double the value of the property – for value in case delivery cannot be made, and also for
return of the property to the adverse party and payment of damages as either party may prove, with costs. Any
such sum as he may recover from the applicant amount awarded a party upon any bond shall be claimed,
ascertained and granted as provided by Section 20 of Rule
3.UPON FILING OF AFFIDAVIT AND BOND, the writ of 57.739
replevin shall issue requiring the sheriff to forthwith take
the property in custody.734 5.A WRIT OF REPLEVIN may be served anywhere in the
PI
3.1 IN TAKING CUSTODY – if concealed, he may
demand delivery, if not delivered, he may cause the RULE 61 – SUPPORT PENDENTE LITE
building / enclosure to be broken. Once in possession, it
must be kept in a secure place and shall be responsible WHEN FILED AND HOW
for its delivery to the party entitled thereto upon receipt of
his fees and expenses.735 At the commencement of the proper action or proceeding
or at any time prior to a judgment or final order – a verified
REMEDIES FOR RETURN OF PROPERTY application may be filed by a party stating the grounds for
the claim and the financial conditions of both parties,
1.Objection to the sufficiency of the bond / surety but he accompanied by affidavits, depositions, or other authentic
cannot immediately require delivery OR at any time documents in support thereof.740
before delivery to the applicant, by filing a bond (redelivery
bond) executed to the applicant in double the value of the 1.It is also available in criminal cases when: (a) child is
property as stated in the applicant’s affidavit. born to offended party allegedly because of the crime (b)
civil liability arising from the criminal action includes
MANNER OF DISPOSITION BY SHERIFF support for the offspring (c) civil aspect has not been
waived, reserved or instituted prior to filing of criminal
1. If within 5 days after taking of the property, the action. This application may be filed successively by the
adverse party does not object to sufficiency of the bond / offended party, her parents, grandparents, guardian or the
sureties OR he objects and the court affirms its approval State in the corresponding criminal case during its
of the bond or approves a new bond OR if he requires pendency.741
return but his bond is objected to (adverse party) and he
does not forthwith file an approved bond – THE SHERIFF PROCEDURE:
SHALL DELIVER THE PROPERTY TO THE APPLICANT
– IF FOR ANY REASON IT IS NOT DELIVERED, IT 1. Upon filing of verified application – it shall be
MUST BE RETURNED TO ADVERSE PARTY.736 served on the adverse party, who shall have 5 days to
comment unless a different period is fixed by the court. It
2. If claimed by a 3rd PARTY by affidavit, the sheriff shall also be verified and accompanied by affidavits,
is not bound to keep and deliver the property unless depositions, authentic documents.742
applicant / agent on demand of the sheriff files a bond
approved by the Court to indemnify the 3 rd party claimant
in a sum not less than the value of the property under 737 Supra, Section 7, Rule 61
738 Supra, Section 8, Rule 61
733 Supra, Section 1, Rule 60 739 Supra, Sections 9 and 10, Rule 61
734 Supra, Sections 2 and 3, Rule 60 740 Supra, Section 1, Rule 61
735 Supra, Section 4, Rule 60 741 Supra, Section 6, Rule 61
736 Supra, Section 6, Rule 60 742 Supra, Section 2, Rule 61

68
2. Hearing shall then be conducted no more than 3 order the subject matter be paid or delivered to the
days after comment is filed or the period expires.743 court.748

3. Court shall determine provisionally the pertinent 2. Summons shall then issued to claimants, together
facts and render such orders as justice and equity may with a copy of the complaint and order.749
require, having due regard to the probable outcome of the
case and such other circumstances. 3. Within the time for the filing of an answer, motions
to dismiss may be filed, if denied the claimant must file an
3.1 IF GRANTED, it shall fix the amount of money to answer within the period remaining but in no case less
be provisionally paid or such other forms or support as than 5 days. If not, he may be declared in default and
should be provided – taking into account the necessities of thereafter the court may render judgment barring him from
the applicant AND resources or means of the adverse any claim in respect of the subject matter. They may also
party AND the terms or mode for providing support. file counter-claims, cross-claims, 3rd party claims, and
other responsive pleadings.750
3.2 IF DENIED, the principal case shall be tried and
decided as early as possible.744 4. After the pleadings of the conflicting claimants
have been filed, pre-trial conducted, the court shall
HOW ENFORCED proceed to determination and adjudication of their
respective claims. The docket and other lawful fees paid
If adverse party fails to comply, the court shall, motu by a party who filed the complaint, as well as costs /
propio or on motion, issue an order of execution without expenses of litigation shall constitute a lien or charge upon
prejudice to his liability for contempt. ALSO, if support be the subject matter, unless the court orders otherwise. 751
paid by a 3rd person, after due notice and hearing in the
same case, he may obtain a writ of execution to enforce RULE 63 DECLARATORY RELIEF AND SIMILAR
his right of reimbursement against the person ordered to REMEDIES
provide support.745
WHAT IS DECLARATORY RELIEF
RESTITUTION
It is a special civil action brought before the Regional Trial
IF upon judgment / final order – The court finds that the Court ONLY by a person interested in a DEED, WILL,
person who has been providing support is not liable CONTRACT or OTHER WRITTEN INSTRUMENT, or
therefor – it shall order the recipient to return the amounts whose rights are affected by a STATUTE, EXECUTIVE
paid plus interest from dates of actual payment without ORDER OR REGULATION, ORDINANCE or any
prejudice to the right of the recipient to obtain government regulation BEFORE BREACH THEREOF,
reimbursement in a separate action from the person asking the court to DETERMINE ANY QUESTION OF
legally obliged to give support. Should the recipient fail to CONSTRUCTION OR VALIDITY arising, and for a
reimburse, the person who provided the same, may, in a declaration of his rights OR duties thereunder.752
separate action, seek reimbursement thereof from the
person obliged to give support.746 1.ACTIONS for REFORMATION OF INSTRUMENT, TO
QUIET TITLE OR REMOVE CLOUDS THEREFROM, or to
SPECIAL CIVIL ACTIONS CONSOLIDATE OWNERSHIP UNDER Art 1607 NCC may
be brought as civil actions for declaratory relief.
RULE 62 - INTERPLEADER
2.NOTE THAT AN ACTION FOR DECLARATORY RELIEF
WHEN PROPER may be brought only before a breach / violation of the
statute or instrument. If already brought AND a breach /
Whenever conflicting claims upon the same subject matter violation is committed before final termination, it is
are or may be made against a person who claims no converted into an ordinary civil action. The parties may
interest whatever in the subject matter, or an interest then file such pleading as may be necessary or proper.753
which in whole or in part is not disputed by the claimants,
he may bring an action against the conflicting claimants to WHO ARE THE ALLOWED PARTIES
interplead and litigate their several claims among
themselves.747 1.All persons who have or claim an interest which would
be affected by the declaration shall be made parties and
PROCEDURE: NO DECLARATION shall as except as otherwise provided
in these RULES prejudice the rights of persons not parties
1. Upon filing of the complaint, the court shall issue to the action.
an order requiring the conflicting claimants to interplead
with one another. If the interest of justice requires, it may 2.If involving validity of a statute, executive order,
regulation, or any other government regulation. The

748 Supra, Section 2, Rule 62


743 Supra, Section 3, Rule 61 749 Supra, Section 3, Rule 62
744 Supra, Section 4, Rule 61 750 Supra, Sections 4 and 5, Rule 62
745 Supra, Section 5, Rule 61 751 Supra, Sections 6 and 7, Rule 62
746 Supra, Section 7, Rule 61 752 Supra, Section 1, Rule 63
747 Supra, Section 1, Rule 62 753 Supra, Section 6, Rule 63

69
solicitor general shall be notified and is entitled to be heard Public use is one which confers some benefit or
upon such question.754 advantage to the public. It is not confined to actual use by
the public. It includes the right of use by the public,
3.If local government ordinance, the corresponding whether it is exercised by one or some or many members
attorney / prosecutor of the Local Government Unit shall of the public.
be similarly notified and heard. If alleged to be Public use contemplates indirect public benefit or
unconstitutional, the Solicitor General shall be notified and advantage (Estate of Salud Jimenez vs. Phil. Export
heard.755 Processing Zone, 349 SCRA 240). It must be considered
in its general concept of meeting a public need or a public
ACTION BY THE COURT exigency. Manosca vs. CA, 252 SCRA 412).
At present, whatever may be beneficially employed for the
Except in actions falling under the 2 nd paragraph of Section general welfare satisfies the requirement of public use.
1, the court, motu propio, or on motion, may refuse to (Reyes vs. NHA, 395 SCRA 494).
exercise the power to declare rights and to construe
instruments in any case WHERE A DECISION WOULD WHAT IS EXPROPRIATION
NOT TERMINATE THE CONTROVERSY ON The taking of private property for public purpose upon the
UNCERTAINTY THAT GAVE RISE TO THE ACTION, or in payment of just compensation. It is also known as exercise
any case, WHERE THE DECLARATION / of the power of eminent domain.
CONSTRUCTION is not NECESSARY and PROPER
under the circumstances.756 HOW EXERCISED
RULE 64 – REVIEW OR JUDGMENTS / FINAL ORDER
OF THE COMELEC AND COA Filing of a verified complaint which shall state with
certainty the right and the purpose of expropriation,
A judgment / final order of COMELEC / COA is to be describing the real / personal property sought to be
brought by the aggrieved party to the Supreme Court expropriated, joining as defendants all persons claiming /
under Rule 65 but the period for filing is 30 days from owning or occupying any part thereof or interest therein.
notice of the judgment or final order sought to be Note that the subject can be either real / personal
reviewed. The filing of a motion for new trial / recon if property.759
allowed under the procedural rules of the COMELEC /
COA will toll the period. If denied, the aggrieved party only WHERE FILED
has the remaining period which is no case shall be less
than 5 days in any event, reckoned from notice of Regional Trial Court, regardless of value as it is an action
denial.757 which is incapable of pecuniary estimation.

1.Note that only judgments/final orders of the COMELEC UPON FILING, MAY PLAINTIFF TAKE POSSESSION
en banc can be brought to the SC. What is exercised is
the power of review. Plaintiff, upon making a deposit in or with an authorized
government depository of an amount equal to the
2.The bringing of a petition, shall not stay the execution of assessed value of the property for purposes of taxation
the judgment, final order or resolution unless directed may take possession of the real property. If it involves
otherwise by the Supreme Court.758 personal property, its value as provisionally ascertained. 760

RULE 67 – EXPROPRIATION 1.Note that under Section 19 of the Local Government


Code, the LGU can take possession upon deposit with the
SEE RP vs. Gingoyon GR 166429, Jan 14, 2005 court of FIFTEEN PERCENT of the Fair Market Value
Rule 67 contemplates two (2) separate final orders, based on the current tax declaration.
namely:
UPON FILING AND SERVICE
1.order of expropriation (Section 4, Rule 67) and
2.order of just compensation (Section 8, Rule 67). 1.The DEFENDANT MAY FILE: (a) A Manifestation
that he has no objection or defense to the action, OR (b)
An expropriation suit is incapable of pecuniary estimation An Answer stating all objections and defenses to the
and falls within the jurisdiction of the Regional Trial Courts. taking of the property. No, counterclaim, cross claim or 3 rd
(Barangay San Roque vs. Heirs of Francisco Pastor, 334 party complaint shall be allowed in the answer or any
SCRA 127). subsequent pleading.761
Public purpose which will justify expropriation of property
generally means such activity which will serve as 2.AFTER, the case now proceeds to a determination of:
convenience, safety, welfare, advantage, or benefit to the
entire community, and not to a particular individual, class 2.1 Authority of the plaintiff to expropriate. Thereafter,
or group of persons. the court may dismiss the petition or issue an order of
expropriation. The order is appealable BUT SHALL NOT
PREVENT DETERMINATION OF JUST
754 Supra, Section 3, Rule 63 COMPENSATION,IF GRANTED AND PLAINTIFF
755 Supra, Section 4, Rule 63
756 Supra, Section 5, Rule 63 759 Supra, Section 1, Rule 67
757 Supra, Sections 1,2, and 3, Rule 64 760 Supra, Section 2, Rule 67
758 Supra, Section 8, Rule 64 761 Supra, Section 3, Rule 67

70
CANNOT DISMISS OR DISCONTINUE EXCEPT ON evidence of the obligation secured by the mortgage
TERMS THAT COURT DEEMS JUST AND EQUITABLE (f)Amount claimed to be unpaid (g)Name/residences of
as there is entry already.762 persons having or claiming an interest in the property
subordinate in right to that of the holder of the mortgage,
2.2 NOTE the right of plaintiff to enter into the property all of whom shall be made defendants.769
and appropriate shall not be DELAYED by an APPEAL.
But if appellate court determines that no right of WHAT COURT CAN DO
expropriation exists. It shall order the RTC to enforce
restoration and determine the damages that the defendant After trial, if the court shall find the facts to be true, it shall
sustained.763 ASCERTAIN THE AMOUNT DUE THE PLAINTIFF AND
RENDER JUDGMENT FOR THE SUM WITH AN ORDER
3. Just compensation is then determined by no more FOR IT TO BE PAID BY ADVERSE PARTY TO THE
than 3 court appointed commissioners. If the Court COURT OR JUDGMENT OBLIGEE WITHIN A PERIOD
accepts their report, it will render judgment based thereon. OF NOT LESS THAN NINETY (90) DAYS NOR MORE
Such judgment is also appealable.764 THAN ONE HUNDRED TWENTY DAYS (120) FROM
ENTRY OF JUDGMENT, AND THAT IN DEFAULT, THE
3.1 IF upon determination of just compensation, the PROPERTY SHALL BE SOLD AT PUBLIC AUCTION. This
ownership is uncertain or claims are conflicting, the court period is known as MORTGAGOR’S EQUITY OF
may order sum / sums paid to be given to the Court for the REDEMPTION. 770
benefit of the person adjudged in the same proceeding to
be entitled thereto BUT, payment will be required to be DISTINGUISHING EQUITY OF REDEMPTION FROM
given to the defendant or the court before plaintiff can RIGHT OF REDEMPTION
enter into or retain the property.765
Equity of Redemption is the equitable right of the
4.The JUDGMENT shall state definitely, by an adequate mortgagor to redeem, while Right of Redemption is the
description, the particular property or interest therein statutory right of the mortgagor to redeem. The former is
expropriated and the nature of the public use or purpose available before auction sale, while the latter is available
for which it is expropriated, a certified copy of which after auction sale. The former is available only judicial
judgment shall be recorded in the registry of deeds and its foreclosure, while the latter is available only in extra-
effect shall to be shall to be vest in the plaintiff title to the judicial foreclosure, but by exception is allowed in judicial
real estate for public use or purpose.766 foreclosure when the mortgagee is the PNB or a bank or a
banking institution. The period for the exercise of the
RIGHT OF PLAINTIFF UPON PAYMENT / TENDER former is within 90 days but no more than 120 days from
entry of foreclosure judgment, while in the latter it is one
The plaintiff shall have the right to enter into the property year from redemption is within one year from date of
and expropriate for public use or retain it if already registration of the sheriff’s certificate of sale, except when
entered. If defendant or counsel absent themselves from the mortgagor is a juridical person, in which case, the right
the court or decline to receive the amount, it shall be to redeem must be exercised until, but not after, the
deposited in the court and shall have the effect of ACTUAL registration of the certificate of sale with the applicable
PAYMENT.767 register of deeds which in no case shall be more than
three months after foreclosure, whichever is earlier.771
WHO PAYS FOR COSTS
WHAT HAPPENS IF NOT PAID
All costs, except that incurred by rival claimants, shall be
paid by the plaintiff unless an appeal is taken therefrom by 1.Upon motion, the court shall order the property sold in
the owner of the property and the judgment is affirmed. the manner prescribed under Rule 39, such SALE shall
Costs shall include the fees of the commissioners.768 not affect the rights of persons holding prior
liens/encumbrances on the property or parts thereof.
RULE 68 – FORECLOSURE OF REAL ESTATE
2.Upon motion, sale shall be CONFIRMED, and such shall
WHAT SHOULD BE STATED IN THE operate to divest the rights in the property of all the parties
COMPLAINT/PETITION to the action and to vest their rights in the purchaser,
subject to such rights of redemption as may be allowed by
The complaint in foreclosure of a mortgage or other law.
encumbrance shall set forth: (a)Date and due execution of
the mortgage (b) Its assignments, if any 2.1 Note that when judicial foreclosure is resorted to
(c)Names/residences of mortgagor/mortgagee there is no right of redemption EXCEPT when the law
(d)Description of the mortgaged property (e) allows a redemption. EXAMPLE: Section 47 of the
Statement of the date of the note or other documentary Philippine General Banking Law which allows a one year
period for redemption.
762 Supra, Section 4, Rule 67
763 Supra, Section 11, Rule 67 3.Upon finality of the order of confirmation or upon
764 Supra, Sections 5,6,7, and 8, Rule 67 expiration of the period of redemption when allowed by
765 Supra, Section 9, Rule 67
766 Supra, Section 13, Rule 67 769 Supra, Section 1, Rule 68
767 Supra, Section 10, Rule 67 770 Supra, Section 2, Rule 68
768 Supra, Section 12, Rule 67 771 Section 47, Philippine General Banking Law

71
law, the purchaser at auction is entitled to possession 1.An action for partition and accounting under Rule 69 is
unless a third party is holding it adversely to the judgment in the nature of a quasi in rem779.
obligor, in which case, the purchaser at the auction sale
may secure a writ of possession from the Court ordering PROCEDURE
the sale.772 1. If after trial, it finds for the plaintiff, it will order
partition. Thereupon, if they AGREE, the parties may
3.1 What is to be registered is the order of undertake the partition among themselves by proper
confirmation. If there is no right of redemption, the title of instruments. The court shall thereupon confirm the
the mortgagor is cancelled and a new one issued in the partition so agreed by the parties. Such partition and order
name of the purchaser. of confirmation shall then be recorded in the registry of
deed of the place where the property is situated.
3.2 If with right of redemption, the annotation is to
await final deed of sale executed by Sheriff.773 (Section 7) A final order decreeing partition and accounting may be
4.PROCEEDS OF THE SALE shall, after deducting the appealed by the party aggrieved thereby.780
costs, be paid to the persons foreclosing the mortgage. If
there be a balance or residue, it shall be paid to the junior 2. If they fail to agree, the Court shall appoint not
encumbrancers, in the order of priority ascertained by the more than 3 commissioners, commanding them to set-off
Court, if none or there still be a balance or residue after to the plaintiff and each party in interest such part and
payment, to the mortgagor.774 proportion of the property as the court will direct. 781

5.If debt is not all due, as soon as a sufficient portion of 2.1 Before discharging their duties, the commissioners
the property has been sold to pay the total amount, the shall take an oath that they will faithfully discharge their
sale shall terminate. Afterwards, no more shall be sold, duties, and in so doing they shall view and examine the
BUT if property cannot be sold in portions, the entire real property , shall hear the preferences of the parties,
property is to be sold with rebate of interest if proper when determine the comparative value of the property, and shall
the full debt is paid.775 set apart the same to the parties in lots or parcels as will
be most advantageous and equitable, having due regard
6.Deficiency judgments, if there is a balance, upon motion, to the improvements, situation and quality of the different
the court shall render judgment against the defendant for parts thereof.782
the balance, upon which execution may issue. If balance is
due at the time of rendition of judgment OR at such time 2.2 If the property cannot be divided without prejudice
as the remaining balance becomes due under the terms of to the interest of the parties, the court may order it
the original contract, which time shall be stated in the assigned to one of the parties willing to take the same,
judgment.776 provided he pays to the other parties such amount as
determined by the commissioners to be equitable, unless
7.Note that the provisions of Section 31 as to use of one of the interested parties asks that the property be sold
premises by obligor, Section 32 as to rents still due the instead.783
obligor, and Section 34 as to recovery of price if sale is not
effective of Rule 39 are applicable as far as the former are 2.3 A report should thereupon be made by the
not inconsistent.777 commissioners and filed with the court, which shall then
give the parties 10 days within which to file heir objections
RULE 69 – PARTITION to the findings. No proceeding shall pass title to the
property or bind the parties until the court shall have
OBJECT OF PARTITION accepted the report and rendered judgment thereon. Note
though that the court has the option to accept or re-commit
Separate, divide and assign a thing that is held in common the matter to the commissioners.784
among those to whom it may belong. The remedy may be
availed of regardless of whether it involves real or 3.If actual partition of the property is made, judgment shall
personal property, or both state definitely the metes and bounds and adequate
description of the property, the particular portion allocated
WHO CAN FILE AND HOW to each party and its effect is to vest to each party in the
action in severalty the portion of real estate assigned to
Any person, having the right to compel partition of real him. If the whole property is assigned to one after payment
estate may file, setting forth therein the nature and extent to the others, judgment has the effect of vesting in the
of his title, adequate description of the property, joining as party making payment the whole of the real estate free
defendants all other persons interested in the property. 778 from any interest of the other parties. If the property is sold
and proceeds divided, judgment has the effect of vesting
the property or portion sold in the purchaser free from any
interest of the parties to the action. 785Judgment may

772 Supra, Section 3, Rule 68 779 Valmonte v Court of Appeals, 52 SCRA 92


773 Supra, Section 7, Rule 68 780 Supra, Section 2, Rule 69
774 Supra, Section 4, Rule 68 781 Supra, Section 3, Rule 69
775 Supra, Section 5, Rule 68 782 Supra, Section 4, Rule 69
776 Supra, Section 6, Rule 68 783 Supra, Section 5, Rule 69
777 Supra, Section 8, Rule 68 784 Supra, Sections 6 and 7, Rule 69
778 Supra, Section 1, Rule 69 785 Supra, Section 11, Rule 69

72
include recovery from the other of just share of rents and 1.1 If action is terminate the lease due to the
profits received by the other from the real estate in expiration of its term, demand is not a prerequisite. 790
question786 and costs equitably apportioned among the
parties.787 2.No demand is required in Forcible Entry cases.

DISTINGUISHING BETWEEN ORDER OF PARTITION WHEN, WHERE FILED AND NATURE OF


AND JUDGMENT OF PARTITION PROCEEDINGS

The Order of Partition finding that plaintiff is entitled to Cases of Forcible Entry/Unlawful Detainer are to be filed
partition, and after which, if the parties agree, they may within one year from date of actual entry or date of last
partition subject to confirmation by the court, while demand before the Municipal Trial Court and shall be
Judgment of Partition is the judgment rendered pursuant covered by the Rules on Summary Procedure, irrespective
to the commissioner’s report after it is accepted by the of the amount of damages or unpaid rentals, unless they
court. BOTH THOUGH ARE APPEALABLE are covered by agricultural tenancy laws or otherwise
provided by law.791
RULE 70- FORCIBLE ENTRY, ILLEGAL/UNLAWFUL
DETAINER PROCEDURE TO BE FOLLOWED

WHAT IS FORCIBLE ENTRY 1.The only allowable pleadings are the complaint,
compulsory counterclaim and cross-claim pleaded in the
An action brought when a person is deprived of answers and answers thereto. All pleadings are to be
possession of land/building by FORCE, INTIMIDATION, verified.792
THREAT, STRATEGY, OR STEALTH.
2.Upon filing of the complaint, the court may, from an
WHAT IS UNLAWFUL DETAINER examination of the allegations in the complaint and such
evidence attached thereto, dismiss the complaint on any of
An action brought by a lessor, vendor, vendee or other the grounds for a motion to dismiss which are apparent
person against whom possession of land/building is therein. If not dismissed, it shall proceed to issue
unlawfully withheld after expiration or termination of the summons.793
right to hold possession, by virtue of a contract, express or
unpaid. Such action must be brought within one year after 3.If summons is issued, the defendant shall file his answer
withholding such possession. Also known as an accion within 10 days from receipt, serving a copy thereof to the
interdictal which seeks to recover possession de facto or plaintiff. Affirmative or negative defenses not pleaded are
physical, actual or material possession. deemed waived, except lack of jurisdiction over the subject
matter. Crossclaims or counterclaims not asserted are
Note that it is the character or nature of the defendant’s barred. If the answer contains crossclaims or
possession which will determine which of the two actions counterclaims, answers thereto are to be filed within 10
is appropriate. days from service of the answer in which they are
pleaded.794
UNLAWFUL DETAINER OR FORCIBLE ENTRY OR 4.Failure to answer the complaint within the period above
ACCION INTERDICTAL DISTINGUISHED provided, the court, motu proprio, or on motion of the
plaintiff, shall render judgment as may be prayed for
From Accion Publiciana which is a plenary action to therein: Provided, however, That the court may in its
recover right of possession that is brought after one year discretion reduce the amount of damages and attorney’s
from accrual of the cause of action in a Regional Trial fees claimed for being excessive or otherwise
Court and Accion Reivindicatoria which is an action to unconscionable. This is without prejudice to the
recover ownership, including possession. applicability of Section 3, Rule 9 of the Rules of Court, if
Note: In addition to restitution of possession, damages and there are two or more defendants.795
costs may also be recovered.788
WHAT IS REQUIRED FOR THE ACTION TO BE FILED 5.A preliminary conference is then scheduled not later
than 30 days after the last answer is filed. The provision of
1.In Illegal Detainer ,unless otherwise stipulated, the Rule 18 on pre-trial shall be applicable to the preliminary
lessor can proceed against lessee only after demand to conference unless inconsistent with the provisions of this
pay or comply with the conditions of the lease and to Rule.
vacate is made upon the lessee, or by serving written
notice of such demand upon the person found within the
premises, or by posting such notice on the premises if no
person is found thereon and the lessee fails to comply 790 Lanuza v Munoz, 429 SCRA 562
within 15 days in the case of land or 5 days in case of 791 Supra, Section 3, Rule 70
building.789 792 Supra, Section 4, Rule 70, Article II, Section 3 (a) and (b),
Rules on Summary Procedure
793 Supra, Section 5, Rule 70, Article II, Section 4, Rules on
Summary Procedure
786 Supra, Section 8, Rule 69 794 Supra, Section 6, Rule 70, Article II, Section 5, Rules on
787 Supra, Section 10, Rule 69 Summary Procedure
788 Supra, Section 1, Rule 70 795 Supra, Section 7, Rule 70, Article II, Section 6, Rules on
789 Supra, Section 2, Rule 70 Summary Procedure

73
The failure of the plaintiff to appear in the preliminary running of the period for the filing of an answer and cause
conference shall be a cause for the dismissal of his undue delay.801
complaint. The defendant who appears in the absence of
the plaintiff shall be entitled to judgment on his (b) Motion for a bill of particulars;
counterclaim in accordance with Section 6 hereof. All
cross-claims shall be dismissed. (c) Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
If a sole defendant shall fail to appear, the plaintiff shall
be entitled to judgment in accordance with Section 6 (e) Motion for extension of time to file pleadings,
hereof. This Rule shall not apply where one of two or more affidavits or any other paper;
defendants sued under a common cause of action who
had pleaded a common defense shall appear at the (f) Memoranda;
preliminary conference.
(g) Petition for certiorari, mandamus, or prohibition
No postponement shall be granted except for highly against any interlocutory order issued by the court;
meritorious grounds and without prejudice to sanctions
which the court may deem to impose.796 (h) Motion to declare the defendant in default;

6. Within 5 days after the termination of the preliminary (i) Dilatory motions for postponement;
conference, an order shall be issued by the court stating
the following matters: (a) Whether the parties have arrived (j) Reply;
at an amicable settlement, and if so, the terms thereof
(b)The stipulations or admissions entered into by the (k) Third-party complaints; and
parties (c) Whether, on the basis of the pleadings and the
stipulations and admissions made by the parties, judgment (l) Interventions.802
may be rendered without the need of further proceedings,
in which event the judgment shall be rendered within thirty 9.Note that a PRELIMINARY MANDATORY INJUNCTION
(30) days from issuance of the order (d) A clear may be granted by the court upon motion presented within
specification of material facts which remain controverted; 5 days from the filing of the complaint to restore him in
and (e) Such other matters intended to expedite the possession, which should be decided by the court within
disposition of the case.797 30 days from filing thereof803 AND upon motion of the
plaintiff, within 10 days from perfection of an appeal to the
7.Within 10 days from receipt of the order, the parties shall Regional Trial Court to restore him in possession if the
submit the affidavits of their witnesses, evidences and court is satisfied that the appeal of the defendant is
position papers setting forth the law and the facts relied FRIVOLOUS or DILATORY, or that his (plaintiff’s) appeal is
upon.798 The affidavits submitted shall only state the facts prima facie meritorious.804
of direct personal knowledge of the affiant which are
admissible in evidence and must indicate their 10. The court shall then render judgment within 30
competence to testify. A violation may subject the party or days after receipt of the last affidavits and position papers,
counsel to disciplinary action and will be cause to expunge or the expiration of the period for filing the same.
the inadmissible affidavit or portion thereof from the
record.799 However, should the court find it necessary to clarify
certain material facts, it may, during the said period, issue
8.The following petitions, motions, or pleadings are an order specifying the matters to be clarified, and require
PROHIBITED and shall not be allowed to be filed: the parties to submit affidavits or other evidence on the
said matters within ten (10) days from receipt of said order.
(a) Motion to dismiss the complaint except on the ground Judgment shall be rendered within fifteen (15) days after
of lack of jurisdiction over the subject matter, or failure to the receipt of the last clarificatory affidavits, or the
comply with the preceding section pertaining to referral to expiration of the period for filing the same.
the Lupon for conciliation. The case may then be
dismissed WITHOUT PREJUDICE and may be revived The court shall not resort to the clarificatory procedure to
upon showing of compliance.800 The filing of a motion to gain time for the rendition of the judgment.805
dismiss after an answer is filed does not violate the rules.
What is proscribed is a motion to dismiss that stops the 11. Should the defense of OWNERSHIP be raised,
the court shall only consider the same if the issue of
possession cannot be resolved without deciding the issue
of ownership. It shall thus be resolved only to determine
796 Supra, Section 8, Rule 70, Article II, Section 7, Rules on possession and any judgment shall be conclusive only on
Summary Procedure possession and shall not be a bar to another action
797 Supra, Section 9, Rule 70, Article II, Section 8, Rules on
Summary Procedure 801 Heirs of Olivas v Flor, 161 SCRA 393
798 Supra, Section 10, Rule 70, Article II, Section 9, Rules on 802 Supra, Section 13, Rule 70, Article IV, Section 19, Rules on
Summary Procedure Summary Procedure
799 Supra, Section 14, Rule 70, Article II, Section 20, Rules on 803 Supra, Section 15, Rule 70, Article II, Section 10, Rule on
Summary Procedure Summary Procedure
800 Supra, Section 12, Rule 70, Article IV, Section 18, Rules on 804 Supra, Section 20, Rule 70
Summary Procedure 805 Supra, Section 11, Rule 70, Article

74
between the parties respecting the title to the land or to submit their differences to amicable settlement by an
building806 appropriate lupon (7) where dispute involves parties who
actually reside in barangays of different cities or
12. The judgment to be rendered by the court in favor municipalities, EXCEPT when the barangays actually
of the plaintiff shall include restitution of the premises, the adjoin each other and the parties agree to submit their
sum justly due as arrears of rent or as reasonable differences to amicable settlement by an appropriate lupon
compensation for the use of the premises, attorney’s fees (8) such other classes of disputes which the President
and costs. If the allegations are not true, it shall render may determine in the interest of justice or upon
judgment for the defendant for recovery of cost. If a recommendation by the Secretary of Justice (Section 408,
counterclaim is established, the court shall render PD 1508). (9) disputes arising from the implementation of
judgment for the sum found in arrears from either party the CARP (10) Employer-Employee disputes (11) action to
and award costs as justice requires. 807 The judgment is annul a judgment upon a compromise. Note however that
APPEALABLE to the appropriate Regional Trial Court, while no petition, complaint, action or proceeding within
which shall decide the case on the basis of the entire the authority of the lupon shall be filed directly with the
record of the proceedings in the court of origin and such court or any government office for adjudication UNLESS
memoranda or brief as may be submitted or required808 there has been a confrontation before the lupon chairman
or pangkat, and that no conciliation or settlement has been
Note the ruling in the case of Azcuna Jr. vs. CA, GR No. reached as certified by the lupon secretary or pangkat
116665, March 20, 1996 allowing recovery of liquidated secretary, or unless the settlement has been repudiated
damages. within 10 days from its date by a statement sworn before
the punong barangay to the effect that his consent is
13. If judgment is rendered against the defendant, the vitiated by fraud violence or intimidation ( Section 418, PD
execution shall issue immediately upon motion, unless an 1508), the following cases may be filed directly: (1)
appeal has been perfected AND the defendant to stay accused in under detention (2) person has otherwise been
execution files a sufficient supersedeas bond if there are deprived of personal liberty calling for habeas corpus
rentals in arrears809, approved by the court and executed proceedings (3) when action is coupled with a provisional
in favor of the defendant to pay rents, damages and costs remedy (4) where action may otherwise be barred by
accruing down to the time of the judgment appealed from, prescription (Section 412, PD 1508)
AND UNLESS, during the pendency of the appeal, he The proper VENUE for conciliation is as follows: (1) if
deposits with the appellate court the amount of the rent between persons actually residing in the same barangay-
due from time to time under the contract or the reasonable before the lupon of the said barangay (2) if between actual
value for use and occupation adjudged by the court on or residents of different barangays within the same city of
before the 10th day of each succeeding month or period.810 municipality- before the lupon where the respondent
Note that there is no necessity for a motion for the court to resides, if there be several respondents- before the lupon
fix the supersedeas bond as the amount of the same can where anyone of them resides at the election of the
be ascertained from the judgment. Also, if the records of complainant (3) if involving real property or any interest
the case have already been transmitted to the appellate therein- the barangay lupon where the property or larger
court, the supersedeas bond may be filed with the portion is located (4) if arising in the workplace where the
appellate court.811 contending parties are employed or at the institution where
such parties are enrolled for study- before the lupon of the
14. The judgment of the appellate court shall however barangay where the workplace or institution is located. Any
be subject to immediate execution without prejudice to a OBJECTIONS TO VENUE shall be raised before the
further appeal812 Punong Barangay, otherwise they are waived. Legal
questions may be submitted to the Secretary of Justice or
SALIENT PORTIONS OF KATARUNGANG his duly designated representative whose ruling thereon
PAMBARANGAY LAW shall be binding.

All DISPUTES require conciliation except in the following: The procedure for settlement is (1) initiation of complaint,
(1) where one party is the government or any subdivision orally or in writing, to the lupon chairman of the barangay
or instrumentality thereof (2) where one party is a public (2) mediation by lupon chairman on the next working day
officer or employee, and the dispute relates to the from receipt of the complaint, failing in which within 15
performance of his official functions (3) offenses days from the first meeting, he shall forthwith set a date
punishable by imprisonment exceeding 1 year or a fine for the constitution of the pangkat (3) the pangkat shall
exceeding P 5000.00 (4) offenses where there is no convene not later than 3 days from constitution to hear the
private offended party (5) where the dispute is brought by parties and explore the possibility of an amicable
or against a corporation, partnership or juridical entity (6) settlement within 15 days from the day it convenes, which
where the dispute involves real properties located in period is extendible for another 15 days, except in clearly
different cities or municipalities UNLESS the parties agree meritorious cases. Note however, that while prescription
does not run upon filing of the complaint and shall resume
806 Supra, Sections 16 and 18, Rule 70 only upon receipt of the complaint or certificate of
807 Supra, Section 17, Rule 70 repudiation, or certification to file action, the interruption
808 Supra, Section 18, Rule 70 shall not exceed 60 days from filing of the complaint with
809 Supra, Section 8, Rule 70 and De Laureano v. Adil, 72 SCRA the punong barangay. (Section 410, PD 1508)
146
810 Supra, Section 19, Rule 70 The FORM of the amicable settlement shall be in writing,
811 Chua v Court of Appeals, 286 SCRA 437 in a language/dialect known to the parties, signed by them
812 Supra, Section 21, Rule 70

75
and attested by the lupon/pangkat chairman (Section 411,
PD 1508). This shall have the force and effect of a final (1) Violations of traffic laws, rules and regulations;
judgment of a court upon expiration of 10 days from date (2) Violations of the rental law;
thereof unless repudiation has been made or a petition to (3) Violations of municipal or city ordinances;
nullify the award has been filed before the proper court. (4) Violations of Batas Pambansa Blg 22814
This does not apply to cases already pending but (5) All other criminal cases where the penalty
subsequently referred to the lupon for amicable settlement prescribed by law for the offense charged is imprisonment
under the last paragraph of Section 408,as the same is not exceeding six months, or a fine not exceeding one
submitted back to the court to serve as basis for rendition thousand pesos (P1,000), or both, irrespective of other
of judgment. (Section 416, PD 1508). The award or imposable penalties, accessory or otherwise, or of the civil
settlement may be enforced by execution by the lupon liability arising therefrom: Provided, however, That in
within 6 months from the date of the settlement. After the offenses involving damage to property through criminal
lapse of the said period, by action in the appropriate city of negligence, this Rule shall govern where the imposable
municipal court. (Section 417, PD 1508) fine does not exceed ten thousand pesos (P10,000).

Note however that if a settlement is not complied with, the This rule shall not apply to a civil case where the
injured party may bring an action against the offending plaintiff’s cause of action is pleaded in the same complaint
party to recover the original amount of his claim, thereby with another cause of action subject to the ordinary
rescinding the compromise under Article 2041 of the Civil procedure; nor to a criminal case where the offense
Code which was held to qualify Article 2037 of the Civil charged is necessarily related to another criminal case
Code as to the effect of a compromise being considered subject to ordinary procedure.
as constituting res judicata.813
SEC. 2. Determination of applicability. – Upon the filing
of a civil or criminal action, the court shall issue an order
declaring whether or not the case shall be governed by
REVISED RULE ON this Rule.
SUMMARY PROCEDURE
A patently erroneous determination to avoid the
RESOLUTION OF THE COURT EN BANC DATED application of the Rule of Summary Procedure is a ground
OCTOBER 15, 1991 PROVIDING FOR THE REVISED for disciplinary action.
RULE ON SUMMARY PROCEDURE FOR
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL II CIVIL CASES
COURTS IN CITIES, MUNICIPAL TRIAL COURTS AND
MUNICIPAL CIRCUIT TRIAL COURTS. SEC. 3. Pleadings. –

Pursuant to Section 36 of the Judiciary Reorganization Act A. Pleadings, allowed. – The only pleadings allowed
of 1980 (B.P. Blg. 129) and to achieve an expeditious and to be filed are the complaints, compulsory counterclaims
inexpensive determination of the cases referred to herein, and cross-claims pleaded in the answer, and the answers
the Court Resolved to promulgate the following Revised thereto.
Rule on Summary Procedure:
B. Verification. – All pleadings shall be verified.
I APPLICABILITY
SEC. A. Duty of court. – After the court determines that
SECTION 1. Scope: - This rule shall govern the summary the case falls under summary procedure, it may, from an
procedure in the Metropolitan Trial Courts in Cities, the examination of the allegations therein and such evidence
Municipal Trial Courts, and the Municipal Circuit Trial as may be attached thereto, dismiss the case outright on
Courts in the following cases falling within their jurisdiction: any of the grounds apparent therefrom for the dismissal of
a civil action.
A. Civil Cases:
If no ground for dismissal is found, it shall forthwith issue
(1) All cases of forcible entry and unlawful detainer, summons which shall state that the summary procedure
irrespective of the amount of damages or unpaid rentals under this Rule shall apply.
sought to be recovered. Where attorney’s fees are
awarded, the same shall not exceed twenty thousand NOTE: That any of the grounds for dismissal under Rule
pesos (P20,000). 16 apply although no motion to dismiss can be filed except
on the grounds of lack of jurisdiction and non-compliance
(2) All other cases, except probate proceedings, with the requirement on conciliation.
where the total amount of plaintiff’s claim does not exceed
one hundred thousand pesos (P100,000) or, two hundred NOTE: That the prohibition as to the filing of a motion to
thousand pesos (P200,000) in Metropolitan Manila, dismiss exists prior to the filing of an answer but a
exclusive of interest and costs. (As amended by A.M. No. dismissal grounded on any of the causes stated in Rule 16
02-11-09-SC, dated Nov. 12, 2002; this amended took can only be effected prior to the issuance of the court of
effect on November 25, 2002) summons and not after an answer has been filed (Heirs of
Ricardo Olivas vs. Flor, 161 SCRA 393)
B. Criminal Cases:

813 Chavez v Court of Appeals, GR 159411, March 18, 2005 814 A.M. 00-11-01-SC, April 15, 2003

76
SEC. 5. Answer. – Within ten (10) days from service of (d) A clear specification of material facts which remain
summons, the defendant shall file his answer to the controverted; and
complaint and serve a copy thereof on the plaintiff.
Affirmative and negative defenses not pleaded therein (e) Such other matters intended to expedite the
shall be deemed waived, except for lack of jurisdiction disposition of the case.
over the subject matter. Cross-claims and compulsory
counterclaims not asserted in the answer shall be SEC. 9. Submission of affidavits and position papers. –
considered barred. The answer to counterclaims or cross- Within ten (10) days from receipt of the order mentioned in
claims shall be filed and served within ten (10) days from the next preceding section, the parties shall submit the
service of the answer in which they are pleaded. affidavits of their witnesses and other evidence on the
factual issues defined in the order, together with their
SEC. 6. Effect of failure to answer. – Should the position papers setting forth the law and the facts relied
defendant fail to answer the complaint within the period upon by them.
above provided, the court, motu proprio, or on motion of
the plaintiff, shall render judgment as may be prayed for SEC. 10. Rendition of judgment. – Within thirty (30) days
therein: Provided, however, That the court may in its after receipt of the last affidavits and position papers, or
discretion reduce the amount of damages and attorney’s the expiration of the period for filing the same, the court
fees claimed for being excessive or otherwise shall render judgment.
unconscionable. This is without prejudice to the
applicability of Section 4, Rule 18 of the Rules of Court, if However, should the court find it necessary to clarify
there are two or more defendants. certain material facts, it may, during the said period, issue
an order specifying the matters to be clarified, and require
NOTE: Rendition by the court of judgment on account of the parties to submit affidavits or other evidence on the
failure to file an answer or to appear during the preliminary said matters within ten (10) days from receipt of said order.
conference may not require a motion (Sordan vs. De Judgment shall be rendered within fifteen (15) days after
Guzman, A.M. No. MTJ-00-1296, October 5, 2000) the receipt of the last clarificatory affidavits, or the
expiration of the period for filing the same.

SEC. 7. Preliminary conference; appearance of parties. The court shall not resort to the clarificatory procedure to
– Not later than thirty (30) days after the last answer is gain time for the rendition of the judgment.
filed, a preliminary conference shall be held. The rules on
pre-trial in ordinary cases shall be applicable to the NOTE: That hearings are not necessary unless for the
preliminary conference unless inconsistent with the purpose of clarifying certain material facts.
provisions of this Rule.
III CRIMINAL CASES
The failure of the plaintiff to appear in the preliminary
conference shall be a cause for the dismissal of his Sec. 11. How commenced. – The filing of criminal cases
complaint. The defendant who appears in the absence of falling within the scope of this Rule shall be either by
the plaintiff shall be entitled to judgment on his complaint or by information; Provided, however, That in
counterclaim in accordance with Section 6 hereof. All Metropolitan Manila and in Chartered Cities, such cases
cross-claims shall be dismissed. shall be commenced only by information, except when the
offense cannot be prosecuted de officio.
If a sole defendant shall fail to appear, the plaintiff shall
be entitled to judgment in accordance with Section 6 The complaint or information shall be accompanied by
hereof. This Rule shall not apply where one of two or more the affidavits of the complainant and of his witnesses in
defendants sued under a common cause of action who such number of copies as there are accused plus two (2)
had pleaded a common defense shall appear at the copies of the court’s files. If this requirement is not
preliminary conference. complied with within five (5) days from date of filing, the
case may be dismissed.
SEC. 8. Record of preliminary conference. – Within five
(5) days after the termination of the preliminary Sec. 12 Duty of court. –
conference, the court shall issue an order stating the
matters taken up therein, including but not limited to: (a) If commenced by complaint. – On the basis of the
complaint and the affidavits and other evidence
(a) Whether the parties have arrived at an amicable accompanying the same, the court may dismiss the case
settlement, and if so, the terms thereof; outright for being patently without basis or merit and order
the release of the accused if in custody.
(b) The stipulations or admissions entered into by the (b) If commenced by information. – When the case is
parties; commenced by information, or is not dismissed pursuant
to the next preceding paragraph, the court shall issue an
(c) Whether, on the basis of the pleadings and the order which, together with copies of the affidavits and
stipulations and admissions made by the parties, judgment other evidence submitted by the prosecution, shall require
may be rendered without the need of further proceedings, the accused to submit his counter-affidavit and the
in which event the judgment shall be rendered within thirty affidavits of his witnesses as well as any evidence in his
(30) days from issuance of the order; behalf, serving copies thereof on the complainant or
prosecutor not later than ten (10) days from receipt of said

77
order. The prosecution may file reply affidavits within ten
(10) days after receipt of the counter-affidavits of the SEC. 18 Referral to Lupon. – Cases requiring referral to
defense. the Lupon for conciliation under the provisions of
Presidential Decree No. 1508 where there is no showing
Sec. 13 Arraignment and trial. – Should the court, upon a of compliance with such requirement, shall be dismissed
consideration of the complaint or information and the without prejudice, and may be revived only after such
affidavits submitted by both parties, find no cause or requirement shall have been complied with. This provision
ground to hold the accused for trial, it shall order the shall not apply to criminal cases where the accused was
dismissal of the case; otherwise, the court shall set the arrested without a warrant.
case for arraignment and trial.
SEC. 19. Prohibited pleadings and motions. – The
If the accused is in custody for the crime charged, he shall following pleadings, motions, or petitions shall not be
be immediately arraigned and if he enters a plea of guilty, allowed in the cases covered by this Rule:
he shall forthwith be sentenced.
(a) Motion to dismiss the complaint or to quash the
Sec. 14 Preliminary conference. – Before conducting the complaint or information except on the ground of lack of
trial, the court shall call the parties to a preliminary jurisdiction over the subject matter, or failure to comply
conference during which a stipulation of facts may be with the preceding section;
entered into, or the propriety of allowing the accused to
enter a plea of guilty to a lesser offense may be (b) Motion for a bill of particulars;
considered, or such other matters may be taken up to
clarify the issues and to ensure a speedy disposition of the (c) Motion for new trial, or for reconsideration of a
case. However, no admission by the accused shall be judgment, or for reopening of trial;
used against him unless reduced to writing and signed by
the accused and his counsel. A refusal or failure to NOTES: A motion for reconsideration can be filed when
stipulate shall not prejudice the accused. the case is already pending before the appellate court.
(Jakihaca vs.Aquino, 181 SCRA 67). A motion for
Sec. 15 Procedure of trial. – At the trial, the affidavits reconsideration of rulings or pertaining to other incidents,
submitted by the parties shall constitute the direct NOT OF THE JUDGMENT, is allowed ( Lucas vs. Fabros,
testimonies of the witnesses who executed the same. 324 SCRA 1)
Witnesses who testified may be subjected to cross-
examination, redirect or re-cross-examination. Should the (e) Motion for extension of time to file pleadings,
affiant fail to testify, his affidavit shall not be considered as affidavits or any other paper;
competent evidence for the party presenting the affidavit,
but the adverse party may utilize the same for any (f) Memoranda;
admissible purpose.
(g) Petition for certiorari, mandamus, or prohibition
Except on rebuttal or surrebuttal, no witness shall be against any interlocutory order issued by the court;
allowed to testify unless his affidavit was previously
submitted to the court in accordance with Section 12 (h) Motion to declare the defendant in default;
hereof.
(i) Dilatory motions for postponement;
However, should a party desire to present additional
affidavits or counter-affidavits as part of his direct NOTE: If motion is well grounded, it may be allowed.
evidence, he shall so manifest during the preliminary
conference, stating the purpose thereof. If allowed by the (j) Reply;
court, the additional affidavits of the prosecution or the
counter-affidavits of the defense shall be submitted to the (k) Third-party complaints; and
court and served on the adverse party not later than three
(3) days after the termination of the preliminary (l) Interventions.
conference. If the additional affidavits are presented by
the prosecution, the accused may file his counter-affidavits SEC. 20. Affidavits. – The affidavits required to be
and serve the same on the prosecution within three (3) submitted under this Rule shall state only facts of direct
days from such service. personal knowledge of the affiants which are admissible in
evidence, and shall show their competence to testify to the
Sec. 16. Arrest of accused. – The court shall not order the matters stated therein.
arrest of the accused except for failure to appear
whenever required. Release of the person arrested shall A violation of this requirement may subject the party or
either be on bail or on recognizance by a responsible the counsel who submits the same to disciplinary action,
citizen acceptable to the court. and shall be cause to expunge the inadmissible affidavit or
portion thereof from the record.
Sec. 17 Judgment. – Where a trial has been conducted,
the court shall promulgate the judgment not later than SEC. 21. Appeal. – The judgment or final order shall be
thirty (30) days after the termination of trial. appealable to the appropriate regional trial court which
shall decide the same in accordance with Section 22 of
COMMON PROVISIONS Batas Pambansa Blg. 129. The decision of the regional

78
trial court in civil cases governed by this Rule, including enters or attempts or induces another to enter into or upon
forcible entry and unlawful detainer, shall be immediately such real property for the purpose of executing acts of
executory, without prejudice to a further appeal that may ownership or possession, or in any manner disturbs the
be taken therefrom. possession given to the person adjudged to be entitled
thereto; (c) Any abuse of or any unlawful interference
NOTE: That immediate execution requires proof that the with the processes or proceedings of a court not
losing party has been served with notice of judgment (Dy constituting direct contempt under Section 1 of this Rule;
vs. CA, 191 SCRA 585) and that notice of the motion for (d) Any improper conduct tending, directly or indirectly to
execution to the adverse party is required ( Limpo vs. CA, impede, obstruct, or degrade the administration of justice;
333 SCRA 575) (e) Assuming to be an attorney or an officer of a court,
and acting as such without authority; (f) Failure to obey a
SEC. 22. Applicability of the regular rules. – The regular subpoena duly served; (g) The rescue, or attempted
procedure prescribed in the Rules of Court shall apply to rescue, of a person or property in the custody of an officer
the special cases herein provided for in a suppletory by virtue of an order or process of a court held by him.
capacity insofar as they are not inconsistent herewith.
But nothing in this section shall be so construed as to
SEC. 23. Effectivity. – This revised Rule on Summary prevent the court from issuing process to bring the
Procedure shall be effective on November 15, 1991. respondent into court, or from holding him in custody
pending such proceedings.817
RULE 71 – CONTEMPT
2.1 This kind of contempt may be initiated motu propio
WHAT IS CONTEMPT by the court against which the contempt was committed
by an order or any formal charge requiring the respondent
Willful disobedience or open disrespect of the orders, to show cause why he should not be punished for
authority, or dignity of a court or judge acting in judicial contempt. In other cases, it shall be commenced by
capacity by disruptive language or conduct or by failure to verified petition with supporting particulars and certified
obey the orders of the court true copies of documents or papers involved therein, and
upon FULL COMPLIANCE WITH REQUIREMENTS FOR
KINDS OF CONTEMPT FILING INITIATORY PLEADINGS in the court concerned.
If the charges are related to the principal action pending
1.DIRECT CONTEMPT – consists of misbehaviour in the before the court, the petition shall so allege such fact but it
presence of or so near a court as to obstruct or interfere shall be DOCKETED, HEARD AND DECIDED
with the proceedings before the same, it includes, SEPARATELY, unless the court in its discretion orders
disrespect, offensive personalities against others, refusal consolidation of the charge and principal action for joint
to be sworn or answer as a witness, or to subscribe to an hearing and decision.818
affidavit/deposition when lawfully required to do so.
2.2 The charge shall be filed in the Regional Trial
This kind of contempt may be SUMMARILY ADJUDGED Court if the contempt is committed against it or a court of
and be punished by a fine not exceeding P 2,000.00 or equal or higher rank or against an officer appointed by it. If
imprisonment of not exceeding 10 days or BOTH if it be by against a lower court, it may be filed in the Regional Trial
a Regional Trial Court or a fine not exceeding P 200.00 or Court in the place where the lower court sits or in such
imprisonment not exceeding 1 day or BOTH if it be by a lower court, subject to appeal to the Regional Trial
Municipal Trial Court. Court.819

The remedy therefrom is certiorari/ prohibition, in which This kind of contempt is punishable by a fine not
case the judgment is suspended pending the petition exceeding P 30,000.00 or imprisonment not exceeding 6
provided the petitioner files a bond fixed by the court which months or both, if committed against a Regional Trial
rendered the judgment and conditioned that he will abide Court. If against a Municipal Trial Court, by a fine not
by and perform the judgment should the petition be exceeding P 5,000.00 or imprisonment not exceeding 1
decided against him. 815 month. If it consists in a violation of a writ of injunction,
TRO or status quo order, he may also be ordered to make
1.1 It is direct contempt if a pleading contains complete restitution. A writ of execution may be issued to
derogatory, offensive or malicious statements against a enforce a fine.820 If it consists in refusal or omission to do
particular judge when submitted in the same court where an act within his power to perform, he may be imprisoned
the judge is presiding. If submitted elsewhere, it is indirect by order of the court until it is performed.821
contempt.816
2.3 A judgment for indirect contempt is appealable to
2.INDIRECT CONTEMPT – consists of (a) Misbehavior of the Regional Trial Court, but execution shall not be
an officer of a court in the performance of his official duties suspended without the filing of a bond.822
or in his official transactions; (b) Disobedience of or
resistance to a lawful writ, process, order, or judgment of a
court, including the act of a person who, after being 817 Supra, Section 3, Rule 71
dispossessed or ejected from any real property by the 818 Supra, Section 4, Rule 71
judgment or process of any court of competent jurisdiction, 819 Supra, Section 5, Rule 71
820 Supra, Section 7, Rule 71
815 Supra, Sections 1 and 2, Rule 71 821 Supra, Section 8, Rule 71
816 Ang v Castro, 136 SCRA 453 822 Supra, Section 11, Rule 71

79
2.4 An order dismissing a contempt charge or
exoneration from such, is not appealable.823

OTHERS

1.If no hearings are held forthwith and the respondent has


been taken into custody, he may be released upon
payment of a bond, but if he fails to appear on the hearing
of the charge, he may be ordered arrested and the bond
forfeited.824

2.If already imprisoned, the court may discharge the


respondent if public interest will not be prejudiced by the
release.825

APPLICABILITY OF THE RULE

The rules apply to persons, entities, bodies or agencies


exercising quasi-judicial powers or shall have suppletory
effect to their rules. The RTC of the place where the
contempt is committed shall have jurisdiction.826

DEFINING CRIMINAL AND CIVIL CONTEMPT

It is criminal contempt when the purpose is to vindicate the


authority of the court and protect its outraged dignity. It is
civil contempt when there is failure to do something
ordered by the court to be done for the benefit of another
party.827

In fact, it has been declared that the motion for extension


of time within which a party may plead is not a litigated
motion where notice to the adverse party is necessary to
afford the latter an opportunity to resist the application, but
an ex parte motion made to the court in behalf of one or
the other of the parties to the action, in the absence and
usually without the knowledge of the other party or parties.
(Commercial Union Assurance Company Limited, et. al.
vs. Lepanto Consolidated Mining Company, et. al., L-
43342. October 30, 1978, 86 SCRA 79, 95-96; Amante vs.
Sunga, et. al., L-40491, May 28, 1975, 64 SCRA 192, 195)

Therefore, as long as it is filed within the period sought to


be extended, a request for extension of time may be filed
ex parte and granted without the usual formalities
applicable to motions in general. (Moya vs. Barton, 76
Phil. 831)

823 In Re, Mison, Jr, 33 SCRA 30


824 Supra, Sections 6 and 9, Rule 71
825 Supra, Section 10, Rule 71
826 Supra, Section 12, Rule 71
827 Yasay v Recto, 313 SCRA 739

80