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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y.

2017-2018

TABLE OF CONTENTS
DR. V. ORESTES ROMUALDEZ EDUCATIONAL FOUNDATION
COLLEGE OF LAW The Revised Rules of Civil Procedure
Introduction
Jurisdiction of Courts
Rule 1. General Provisions

CIVIL ACTIONS: ORDINARY CIVIL ACTIONS


Rule 2. Cause of Action
Rule 3. Parties to Civil Actions
Rule 4. Venue of Actions
Rule 5. Uniform Procedure in Trial Courts

THE 1997 RULES OF PROCEDURE IN REGIONAL TRIAL COURTS


Rule 6. Kinds of Pleadings

CIVIL PROCEDURE
Rule 7. Parts of a Pleading
Rule 8. Manner of Making Allegations in Pleadings
Rule 9. Effects of Failure to Plead
Rule 10. Amended and Supplemental Pleadings
Rule 11. When to File Responsive Pleadings
Rule 12. Bill of Particulars
Prepared by: Rule 13. Filing and Service of Pleadings, Judgments and Other Papers
LAW 2-A

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Rule 14. Summons
Rule 15. Motions
Second Semester, A.Y. 2017-2018 Rule 16. Motion to Dismiss
RULE 17 - Dismissal Of Actions
Rule 18 - Pre-Trial
Rule 19 - Intervention
Rule 20 - Calendar Of Cases
Rule 21 - Subpoena
Rule 22 - Computation Of Time
Rule 23 - Depositions Pending Action
Rule 24 - Depositions Before Action Or Pending Appeal
Rule 25 - Interrogatories To Parties
Rule 26 - Admission By Adverse Party
Rule 27 - Production Or Inspection Of Documents Or Things

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 1
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Rule 28 - Physical And Mental Examination Of Persons


Rule 29 - Refusal To Comply With Modes Of Discovery
Rule 30 - Trial
Rule 31 - Consolidation Or Severance
Rule 32 - Trial By Commissioner
Rule 33 - Demurrer To Evidence
Rule 34 - Judgment On The Pleadings
Rule 35 - Summary Judgments
Rule 36 - Judgments, Final Orders And Entry Thereof
Rule 37 - New Trial Or Reconsideration
Rule 38 - Relief From Judgments,Orders, Or Other Proceedings
Rule 39 - Execution, Satisfaction And Effect Of Judgments

APPEALS
Rule 40 - Appeal From Municipal Trial Courts To The Regional Trial Court
Rule 41 - Appeal From The Regional Trial Courts
Rule 42 - Petition For Review From The Regional Trial Courts To The Ca
Rule 43 - Appeals From The Court Of Tax Appeals And Quasi-Judicial Agency

PROCEDURE IN THE COURT OF APPEALS


Rule 44 - Ordinary Appealed Cases

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Rule 45 - Appeal By Certiorari To The Supreme Court
Rule 46 - Original Cases
Rule 47 - Annulment Of Judgments Or Final Orders And Resolutions
Rule 48 - Preliminary Conference
Rule 49 - Oral Argument
Rule 50 - Dismissal Of Appeal

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 2
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

the agreement of the parties. Jurisdiction establishes the relationship between


INTRODUCTION the court and the subject-matter while venue establishes the relationship between
the plaintiff and defendant or the petitioner and the respondent.

Civil Procedure will be from Rules 1-71 of the Rules of Court. It is known as the 1997 REQUISITES FOR THE EXERCISE OF JURISDICTION OVER CIVIL CASES
Rules of Civil Procedure.
1. Jurisdiction over the person of the plaintiff or petitioner
Remedial law is the traditional term given to the rules which prescribe the - acquired by the filing of the initiatory pleading which can be a complaint
enforcement of claims arising from the rights created by the law. It prescribes the or a petition.
methods of enforcing the rights or obtaining redress for their invasion. 2. Jurisdiction over the defendant or the respondent
Civil Procedure is the body of law and standards which the court follows in - acquired by service of summons or by voluntary appearance of the
adjudicating civil cases. defendant
3. Jurisdiction over the subject matter
JS: Just like in Criminal Procedure, the subject will start on the concept of - Conferred by law, B.P. Blg. 129 and R.A. No. 7691
jurisdiction. Jurisdiction is the authority to hear and decide a case. 4. Jurisdiction over the issues
Q: How will you determine that the court acquires jurisdiction over the - acquired by the submission of the pleadings of either party
case? 5. Jurisdiction over the res or the thing subject matter of the case
- acquired by the constructive seizure of the thing
A: Jurisdiction is conferred by law at the time of the filing of the complaint. Whether
or not the court has jurisdiction depends on the allegations in the complaint. Q: If the defendant files a motion to dismiss, does that mean the court
Jurisdiction is primarily governed by B.P. Blg. 129 (Judiciary Reorganization Act) and already acquires jurisdiction over his person?
R.A. No. 7691 or the Expanded Jurisdiction Law.
A: It depends. If in the motion to dismiss the defendant only questions the lack
Q: In civil cases for the collection of money, how much would be the of jurisdiction, he does not submit himself to the court’s jurisdiction. However, if he
amount to fall under the jurisdiction of the court? raises other grounds other than the lack of jurisdiction, the court already acquires
A: Exceeding 300,000.00 except in Metro Manila in which case should be exceeding jurisdiction over his person.
400,000.00 TN: There are cases where the court can proceed with trial even if the court will

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TN: In Criminal Procedure, jurisdiction can be raised at any stage of the proceeding not acquire jurisdiction over the person of the defendant as long as it acquires
even for the first time on appeal. It is still the same under Civil Procedure. Lack of jurisdiction over the res. The following are:
jurisdiction over the subject matter can be raised at any stage of the proceeding even 1. Cases involving non-resident aliens
for the first time on appeal. 2. Cases involving defendants who are residing outside of the Philippines
Exception: Teejam vs. Sibonghanoy. The SC applied the principle of estoppel. In these cases, the law allows service of summons by publication. This
They are already precluded from questioning the jurisdiction of the court because publication is not for the court to acquire jurisdiction over the person of the
they have already participated in all the stages of the proceedings. They only defendant but to give him due process. What is important is for the court to
question the jurisdiction of the court when the case was already before the Supreme acquire jurisdiction over the res. But this is only applicable when the cases
Court. are in rem or those involving the personal status of the plaintiff or
Q: Is jurisdiction synonymous with venue? petitioner like declaration of nullity of marriage.

A: No. In criminal cases, venue becomes jurisdiction because you cannot file a
JURISDICTION IN CIVIL CASES
criminal case except in the place where the crime is committed. Jurisdiction is the
authority to hear and decide a case while venue is the place where the case
is to be filed or tried. Jurisdiction is substantive law while venue is procedural law. Kinds of Jurisdiction:
Jurisdiction is fixed and conferred by law while venue can be subjected to  Exclusive original –you can only file the case in a particular court.
 Concurrent – you can file the case in either court.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 3
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

TN: This is subject to the principle of hierarchy of courts. For example, if this is a 2. Actions brought to prevent and restrain violations of laws concerning
petition for certiorari of the order of the MTC, even though it can be filed either monopolies and combinations in restraint of trade. (This is by virtue of RA
in the RTC, CA or SC, you have to file it first in the RTC not directly to the SC 296 as amended by RA 5440).
because more often than not, the SC, while it may be true that it has concurrent
jurisdiction, will dismiss your petition based on the principle of hierarchy of III. With the Court of Appeals, Sandiganbayan, and the Regional Trial Court:
courts. But there are 12 exceptions (cases where you can go directly to SC), one
of which is that when the issue is one of paramount importance. 1. Petitions for Certiorari, prohibition and mandamus relating to an act or
 Appellate–decisions of a lower court are brought for omission of a municipal trial court or a corporation, board and officer or a
review/reversal/modification. person.
2. Petition of issuance of writ of amparo. (Example: you would like to know
JURISDICTION OF COURTS the whereabouts of the victims of forced disappearances, EJKs)
3. Petition of issuance of writ of habeas data. (You want to obtain data/info
SUPREME COURT which are being withheld. You want to know because you are aggrieved
by that).
Exclusive Original Jurisdiction:
IV. With the Regional Trial Court:
1. Petitions for issuance of writs of certiorari, prohibition and mandamus
against the following: 1. Actions affecting ambassadors and other public ministers and consuls.

a. Court of Appeals; (pursuant to RA 296) Appellate Jurisdiction:


- if you want to assail an interlocutory order of the CA (because the remedy
for an interlocutory order is a petition for certiorari on the ground of grave I. By means of ordinary appeal (filing a notice of appeal):
abuse of discretion amounting to lack/excess of jurisdiction).
b. COMELEC en banc (interlocutory order) 1. Originally from RTC to the Court of Appeals to SC, in all criminal cases
c. Commission on Audit; involving offenses for which the penalty is death, reclusion perpetua or
d. Sandiganbayan pursuant PD No.1606 as amended by RA 8249. life imprisonment, or a lesser penalty is imposed which gave rise the more
e. Court of Tax Appeals en Banc; severe offense for which the penalty of death is imposed.

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-You noticed that I’ve put emphasis on En Banc so that it means to say if - So if the RTC convicted the accused with the penalty ofperpetua or life
this is only in division then that would not be in the Supreme Court imprisonment, you have to go to court of appeals first, via ordinary appeal. If
f. Ombudsman in criminal and non- administrative disciplinary cases/actions. you are not yet contented, you go to SC likewise by ordinary appeal.

Concurrent Jurisdiction: II. By means of a petition for review on certiorari under Rule 45 of the 1997 Rules
of civil procedure:
I. With the Court of Appeals:
1. Appeals from the court of appeals.
1. Petitions for writs of Certiorari, prohibition and mandamus against the Civil General Rule:If you are not satisfied with the decision of CA you go to the
Service Commission. SC by way of petition for review on certiorari.
2. Petitions for writs of Certiorari, prohibition and mandamus against the Exception: criminal cases where the penalty imposed is perpetua, life
NLRC.(St. Martin’s Funeral Homes v. NLRC 295 SCRA 494) imprisonment, or death – via ordinary appeal. All others – via petition for
review on certiorari.
II. With the Court of appeals and RTC: 2. Appeals from the Sandiganbayan on pure questions of law
Exception: cases where penalty imposed is perpetua, life imprisonment, and
1. Petitions for habeas corpus and quo warranto. death because you go there by ordinary appeal through a notice of appeal.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 4
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

3. Appeals from judgement/final orders of the RTC exercising original jurisdiction in 2. Appeals from the RTC on constitutional facts, jurisdictional questions involving
the following: questions of fact or mixed questions of fact and law or which should be
a. All cases in which the constitutionality, validity of any treaty, international or appealed first to the CA.(because if pure questions of law, it must be by direct
executive agreement, law, presidential decree, proclamation order, appeal to the SC)
instruction, ordinances or regulation is in question; 3. Appeals from the decisions and final orders of the Family Court.
b. All cases involving the legality of any tax, impost, assessment, toll or any 4. Appeals from the RTC where the penalty imposed is reclusion perpetua, life
penalty imposed in relation thereto. imprisonment, or death.
c. All cases in which the jurisdiction of any lower court is in issue. - So you go to the CA via ordinary appeal, if you are not content by the
d. All cases in which only an error or question of law is involved. decision of CA you go to the SC via an ordinary appeal.
5. Direct appeal from land registration and cadastral cases decided by the
TN:If it is a case involving questions of fact and law, you can’t resort to Rule 45. metropolitan trial court, municipal trial courts, and municipal circuit trial court
You will go to the CA via an appeal, but not to SC via rule 45 (petition for review based on their delegated jurisdiction
on certiorari). - Land registration cases can be within jurisdiction of the 1 st level court by way
4. Appeals from decisions or final resolutions of the Court of Tax Appeals. of a delegated jurisdiction. So instead of appealing to the RTC, you go to the
CA right away via notice of appeal.
III. By means of special civil action of certiorari under Rule 65:
II. By petition for certiorari under Rule 65:
1. Judgment, final order, or resolution of the COMELEC and COA (decisions are
already final) tainted with grave abuse of discretion because rule 65 is 1. Decisions and final resolutions of the National Labor Relations Commission
always based on grave abuse of discretion amounting to lack/excess of
jurisdiction. III. Automatic review:

1. In cases where the RTC imposed the death penalty. (People v. Mateo)
COURT OF APPEALS
IV. By petition for review under rule 42 &43:
Exclusive Original Jurisdiction:
1. Annulment of judgments of the RTC 1. Appeals from the Civil Service Commission (Rule 43)

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- 2 grounds to file an action to annul: Lack of jurisdiction and Extrinsic fraud 2. Appeals from the RTC (in its exercise of appellate jurisdiction) in cases
2. Petitions for certiorari, prohibition and mandamus involving an act or omission of appealed from the MeTC and MCTC which are not a matter of right (Rule 42)
a quasi-judicial agency, unless otherwise provided by law. 3. Appeals from awards, judgments, final orders, resolutions, or authorized by
quasi-judicial agencies in the exercise of its quasi-judicial functions. (Rule 43)
Concurrent Jurisdiction(already discussed) a. SEC
b. Office of the President
Appellate Jurisdiction: c. Land Registration Authority
d. Social Security Commission
I. By ordinary appeal (by notice of appeal or record on appeal): e. Civil Aeronautics Board
f. Intellectual Property Office
TN: Why is there record on appeal? Becausewe have cases where multiple appeals g. National Electrification Administration
are allowed. The period for appeal is not only 15 days but 30 days, and it’s not only h. Energy Regulatory Board
notice of appeal, you also have to file a record on appeal. (Example: Foreclosure of i. National Telecommunications Commission
mortgage, partition, judicial settlement of estate of a deceased person, expropriation. j. DAR under R.A 6657
These are some of the cases where multiple appeals are allowed). k. GSIS
1. Appeals from the RTC except in cases appealable directly to the SC. l. Employees Compensation Commission
m. Agricultural Inventions Board

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

n. Insurance Commission Appellate Jurisdiction:


o. Philippine Atomic Energy Commission
p. Board of Investments 1. Decisions and final orders of the RTC in the exercise of its original or appellate
q. Construction Industry Arbitration Commission jurisdiction under PD 1606 as amended.
r. Voluntary Arbitrators authorized by law and TN: Violation of the anti-graft and corrupt practices Act by a person with
s. Decisions of Special Agrarian Courts salary grade of 26, it will not be filed with the Sandiganbayan but with the
4. These are offices which are also given quasi-judicial functions. If they decide and RTC/MTC. If you are aggrieved of the decision of the RTC/MTC, don’t go to
you are aggrieved with the decision of these offices, go to the CA via petition for the CA but to the Sandiganbayan.
review. (Rule 43)
5. Appeals to the National Commission on Indigenous People
REGIONAL TRIAL COURT
6. Appeals from the office of Ombudsman in administrative disciplinary cases.

TN: Ombudsman exercises criminal and administrative jurisdiction. In criminal case, Exclusive Original Jurisdiction:
the duties to determine the existence of probable cause. In disciplinary cases, they
can dismiss the case &dismiss the employee. If you are not contented with the 1. Where the subject matter of the action is incapable of pecuniary estimation.
administrative disciplinary judgment of the Ombudsman, you go to the CA via a Example: Breach of contract
petition for review. TN: Even if the case is named/termed “Breach of Contract” but the allegations
in the complaint and the prayer is actually more on ownership and title, it
SANDIGANBAYAN ceases to be one of pecuniary estimation. It becomes a real action –
jurisdiction of which depends on the assessed value.

Exclusive Original Jurisdiction: 2. Actions involving title to or possession of real property or an interest therein,
where the assessed value of such property exceeds Php20, 000 or in Metro
1. Violation of Republic Act No.3090 (The Anti-Graft and Corrupt Practices Act) Manila, Php50, 000 except forcible entry and unlawful detainer cases.
TN: Only applicable to those whose salary grade is 27 or higher. If below 27, it - Because if it is forcible entry and unlawful detainer, it is within the original
can be in RTC or MTC depending on the imposable penalty. If there are several jurisdiction of the 1st level court.
accused, but not all of them have salary grade of 27/up, it is still cognizable TN: If it is a case involving title, possession, or ownership, (e.g. Quieting of

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before the Sandiganbayan as long as one of them carries a salary grade of 27 or title, reconveyance, accionreinvindicatoria/publiciana, annulment of
higher. deed/contract of sale) it is very important that you allege the assessed value
2. Offenses committed by public officials and employees in the relation to their of the property in the complaint. Otherwise, your case will be outrightly
office and private individuals charged as co principals, accomplices and dismissed by the court for being a defective complaint. Not only attaching the
accessories tax declaration, but you must allege in the complaint.
3. Members of Congress
4. Members of Constitutional Commissions 3. Action in admiralty and maritime jurisdiction where the demand or claim
5. All other national and local officials classified as salary grade 27 or higher exceeds Php300,000 or in Metro Manila Php 400,000.
6. Civil and Criminal Cases filed pursuant to and in connection with Executive Order 4. Matters of probate, whether testate or intestate, where the gross value of the
No.1, 2, 14 and 14-A. (Sequestration cases) estate exceeds Php300, 000 or in Metro Manila, Php400,000.
7. Violations of R.A 9160 or anti-money laundering act of 2001 committed by public 5. Cases not within the exclusive jurisdiction of any court, tribunal, person or
officers and private persons in conspiracy with such public officers in the body exercising judicial or quasi-judicial functions. (If you run out of answer,
commission of the laundering. you just memorize this)
TN: This is regardless of the salary grade, unlike in Anti-Graft and Corrupt 6. Other cases where the demand, exclusive of interest, damages, attorney’s
Practices Act. fees, litigation expenses and costs or the value in controversy, exceeds
Php300, 000 or in Manila Php400, 000. (Pursuant to RA 7691 [The expanded
Concurrent with the SC, CA and RTC: (Discussed already) Jurisdiction Law])

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 6
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

TN: When you compute the Php300,000 or Php400,000 in Metro Manila, don’t
include the interests, damages, attorney fees, litigation expenses and costs. For TN: However, this presupposes that the action is not capable of pecuniary
example if the principal amount of your claim is Php150,000 but because of the estimation, otherwise jurisdiction is concurrent with the 1 st level courts.
interest it reaches 1M, would you file that before the RTC? No because the la says
“exceeds 300,000” this is exclusive of interests, etc. However, if your main Appellate Jurisdiction:
complaint/cause of action is for damages only, then you are now allowed to count the
interest, moral damages, exemplary damages etc., for the purpose of reaching the 1. All cases decided by the 1st level courts in their respective territorial jurisdiction.
jurisdictional amount requirement. But if damages is only incidental to your main
cause of action (e.g. Collection of sum of money w/ damages) don’t count the THE FAMILY COURT
damages.
Exclusive Original Jurisdiction:
TN: if real action, the basis for jurisdiction is the assessed value. For personal
actions, exceeding 300,000/400,000. 1. Criminal Cases where one of the parties is a minor at the time of the
commission of the offense.
Additional jurisdiction to the RTC transferred under the Securities Regulation Code 2. Petitions for guardianship, custody of children, habeas corpus
since the RTC now is also a Commercial Court designated by the SC. Instead of filing 3. Petitions for adoption of children and the revocation thereof
before the Securities and Exchange Commission, (formerly these are filed here) you 4. Complaints for annulment of marriage, declaration of nullity of marriage and
now file these before the RTC: those relating to marital status and property relations of husband and wife or
those living together under different status and agreements, and petitions for
1. Devices or schemes employed by or any acts of the board of directors, business dissolution of conjugal partnership of gains
associates, its officers and partnership which amounts to fraud and 5. Petitions for involuntary commitment of a child, for removal of custody against
misrepresentation. child’s placement or child caring agency or individual or for the commitment of
2. Controversies arising out of intra-corporate partnership relations the disabled children
3. Controversies in the election or appointment of directors, trustees, officers or 6. Petitions for support and acknowledgement
managers of corporation, partnership or association. 7. Summary judicial proceedings brought under the provisions of E.O No.209
4. Petitions of corporations, partnership, or associations to be declared in a state of (otherwise known as Family Code of the Philippines) – petition for declaration
suspension of payment. of absence/ presumptive death

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5. Applications for issuance of writ of search and seizure in civil actions for 8. Petitions for declaration of status of children as abandoned, dependent or
infringement of the intellectual property rights based on the Intellectual Property neglected children, for the voluntary or involuntary commitment of children,
Code of the Philippines. (by virtue of SC Circular 02-1-06) and for the suspension, termination, or restoration of parental authority and
other cases cognizable under P.D 603 (Child and Youth Welfare)
Concurrent Jurisdiction: 9. Petitions for the constitution of the family home
10. Cases against minors for violation of R.A. 9165 (Dangerous Drugs Law),
I. With the Supreme Court, Court of Appeals and Sandiganbayan (already discussed) violations of R.A. 7610 (The Child Abuse Law), violation of R.A. 9775 (Anti-
Child Pornography Act of 2009)
II. With the 1stlevel courts: 11. Cases of domestic violence against women and children (RA 9262 VAWC)
1. Application of protection order under RA No. 9262 (Violence against women and 12. Criminal cases involving juveniles if no preliminary investigation is required
children) under Section 1 rule 112 of the Revised Rules on Criminal Procedure.
- There are instances where you can file protection order, not before theRTC but
before the 1stlevel court. It is concurrent with the 1 st level court unless there is a FIRST LEVEL COURTS (MTC, MCTC, MetC, MTCC)
family court in the residence of the petitioner.
Exclusive Original Jurisdiction:
III. With the Insurance Commission: 1. Actions involving personal property, valued at not exceeding Php300,000 or in
1. Claims not exceeding Php100 ,000. Metro Manila, Php400,000.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 7
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

2. Actions demanding sums of money not exceeding Php300,000 or in Metro Manila 3. Cadastral proceedings
Php400,000. 4. Naturalization proceedings
TN: Remember how to compute, that is exclusive of interest, damages, 5. Insolvency proceedings
attorney’s fees, litigation expenses, and costs. Not unless the main action is for (there are separate rules which apply to these particular cases)
damages, in which case you count everything for the purpose of reaching
Php300,000 or more than Php300,000. Relevant Provision:
3. Actions involving title to or possession of real property, or any interest therein, Section 6. Construction. – These Rules shall be liberally construed in order to
where the assessed value does not exceed Php20,000 or in Metro Manila, promote their objective of securing a just, speedy and inexpensive disposition of
Php50,000. every action and proceeding
TN: Irrespective of the name of your case, as long as your prayer involve Q: In the application of the rules, how will it be construed?
recovery of ownership and possession, then jurisdiction depends on the assessed General rule: Liberally construed. Because these are rules of procedure.
value. Rationale: Courts should not be too technical because between rules of procedure
4. Provisional remedies in principal actions within their jurisdiction and in proper and substantive law, in the dispensation of justice the latter would always prevail.
cases such as preliminary attachment, injunction, appointment of receiver, and Exception: There are rules of procedure which are strictly construed (e.g. period
delivery of personal property. for appeal). The reason is because of public policy.
5. Forcible entry and unlawful detainer cases. (this is irrespective of the assessed
value) Commencement of civil action
6. Probate proceedings either testate or intestate, where the gross value of the
estate does not exceed Php300,000 or, in Metro Manila, Php400,000. Relevant Provision:
7. Inclusion and exclusion of voters. Section 5. Commencement of action. – A civil action is commenced by the filing of
the original complaint in court. If an additional defendant is impleaded in a later
Delegated Jurisdiction: pleading, the action is commenced with regard to him on the date of the filing of
TN: In cases decided by the 1st level courts in the exercise of its delegated such later pleading, irrespective of whether the motion for its admission, if
jurisdiction, if you want to appeal, you go to the CA. necessary, is denied by the court.
Q: A civil action is commenced by what?
1. Cadastral and land registration cases assigned by the SC where there is no Filing of a complaint before a court of competent jurisdiction.
controversy or opposition, or contested lots valued at more than Php100,000.

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Q: Can it be filed via mail?
Special Jurisdiction: TN: Yes. Although what is usually done is personal, but the law does not prohibit
1. Petitions for habeas corpus but only in the absence of all the Regional Trial Court from filing a complaint by registered mail.
Judges. (This is allowed by BP Blg. 129)
Situation: You filed a complaint in court. 2 weeks thereafter, you want to
RULE 1 amend because you failed to include other defendants. Is it allowed?
GENERAL PROVISIONS Yes. A complaint can be amended once as a matter of right before answer. But the
jurisdiction as far as the additional/newly-impleaded defendants are concerned, are
Relevant Provision: acquired only once the amended complaint is already filed.
Section 4. In what cases not applicable. – These Rules shall not apply to election
cases, land registration, cadastral, naturalization, and insolvency proceedings and TN: Bear in mind that in filing the amended complaint, you still have to follow the
other cases not herein provided for, except by analogy or in a suppletory character prescriptive period for filing the original complaint. Because it might be that you
and whenever practicable and convenient. filed your complaint on the last day of the period and you failed to include other
Q: The rule shall not apply to what cases? defendants, you cannot amend and refile that anymore because your action will
1. Election cases already prescribe. Diba according to your ObliCon, civil actions/cause of actions
2. Land registration have prescriptive periods. You have to follow that. Remember that prescription is

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 8
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

one of the grounds for a motion to dismiss. Even the court can motuproprio dismiss
your case.
Q: What are the 3 requisites (elements) for a cause of action?
Q: Is the payment of docket and filing fees important in the filing of a 1. Legal right of the plaintiff
complaint? 2. Correlative obligation of the defendant
General Rule: Yes. Upon filing of the complaint, you must likewise pay for the 3. Violation of the defendant on the legal right of the plaintiff.
corresponding filing and docket fees. Otherwise the counsel will be held
administratively liable. (Manchester Dev’t Corp. v. CA) Splitting of Cause of Action
Exception: If the plaintiff did not deliberately intend to defraud the court, and he
shows his willingness to pay for additional fees when required by the rules, then the Relevant Provisions:
Court should liberally construe this requirement. (Sun Insurance v. Asuncion 170 Section 4. Splitting a single cause of action; effect of. - If two or more suits are
SCRA 274) instituted on the basis of the same cause of action, the filing of one or a judgment
upon the merits in any one is available as a ground for the dismissal of the others..
CIVIL ACTIONS
ORDINARY CIVIL ACTIONS Q: In connection with cause of action, what is the first rule which every
lawyer must always remember?

RULE 2 Situation: This is a complaint arising out of a foreclosure of a real estate


CAUSE OF ACTION mortgage (you obtained a loan from a bank and you used you real property as a
security). For failure to pay, the bank filed two cases against the defendant. One is
for judicial foreclosure of mortgage and the second one is for the collection of
Relevant Provisions: some of money. Is this legally proper?
Section 1. Ordinary civil actions, basis of.- Every ordinary civil action must be based A: No. Because there no such thing as splitting of cause of action. Splitting of
on a cause of action. cause of action is not allowed.
Section. 2. Cause of action, defined. - A cause of action is the act or omission by Q: (Another example) You filed a case for recovery of ownership of a real
which a party violates a right of another. property, since that real property produces fruits, you also filed another
case for recovery of the fruits of that particular real property, is that

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Section. 3. One suit for a single cause of action. - A party may not institute more
than one suit for a single cause of action. proper?

Q: What is a cause of action? A: No. Again, you are splitting your cause of action. The first rule is you are not
allowed to split your cause of action.
A: Cause of action is the act or omission by which a party violates a right of another.
Q: If the cause of action has been split into two and you are the counsel
TN: When you file a complaint, you should always have a cause of action, otherwise, of the defendant, what is your remedy?
if your complaint has no cause of action, then, incontestably it will be dismissed on
the ground of lack of cause of action. The S.C. in a 2015 decision ruled that if the A: I will file a motion to dismiss not for the ground of splitting the cause action but
ground for a motion to dismiss is based on lack of cause of action, there is no need for the ground that there is either res judicata or litis pendentia.
for a hearing to be conducted. Why? Because in determining whether the complaint Q: Where lies the difference between filing a motion to dismiss on the
has no cause of action, we are only limited to the allegations in the complaint. We ground of litis pendentia and a motion to dismiss on the ground of res
can always determine that based on the allegations in the complaint filed before the judicata?
court. Because, generally speaking, motions to dismiss are a litigated motions, so we
really have to conduct a hearing, EXCEPT if this is based on lack of cause of action A: In litispendentia, there is still a pending litigation, but in res judicata, the
because we can decide the motion even without hearing on the motion because in previous case was already finally decided by the court.
deciding whether there is cause of action or none, actually, we are limited on the
allegations in the complaint.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 9
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

TN: When you become lawyers and then your complaint states more than one
Joinder and Misjoinder of Causes of Action cause of action, in order to guide the court, you place there in your complaint: First
cause of action… second cause of action… third cause of action… So that you could
Relevant Provisions:
inform the court that actually, your complaint has more than one cause or causes
Section 5. Joinder of causes of action. - A party may in one pleading assert, in the of action. While the law does not allow splitting of the cause of action, the law
alternative or otherwise, as many causes of action as he may have against an however allows a complaint may contain more than one cause or causes of action.
opposing party, subject to the following conditions:
Q: What about if a complaint contains 3 causes of action, one is actually
(a) The party joining the causes of action shall comply with the rules on joinder of mis-joined. Meaning it should not have been included in the complaint,
parties; so the defendant filed a motion to dismiss on the ground of misjoinder of
the cause of action. The motion to dismiss was granted by the court. Is
(b) The joinder shall not include special civil actions or actions governed by special
the court correct?
rules;
A: No. Misjoinder (non-joinder) of causes of action is not a ground for dismissal of
(c) Where the causes of action are between the same parties but pertain to different
an action because anyway, it may be severed by the court itself or upon motion of
venues or jurisdictions, the joinder may be allowed in the Regional Trial Court
a party.
provided one of the causes of action falls within the jurisdiction of said court and the
venue lies therein; and
RULE 3
(d) Where the claims in all the causes of action are principally for recovery of money, PARTIES TO CIVIL ACTIONS
the aggregate amount claimed shall be the test of jurisdiction.
Section 6. Misjoinder of causes of action. - Misjoinder of causes of action is not a Relevant Provision:
ground for dismissal of an action. A misjoined cause of action may, on motion of a Section 1. Who may be parties; plaintiff and defendant. – Only natural or juridical
party or on the initiative of the court, be severed and proceeded with separately. persons, or entities authorized by law may be parties in a civil action. The term
“plaintiff” may refer to the claiming party, the counter-claimant, the cross-claimant,
Q: But a complaint may contain more than one cause of action? or the third (fourth, etc.)-party plaintiff. The term “defendant” may refer to the
A: Yes. As long as the following requisites are present: original defending party, the defendant in a counterclaim, the cross-defendant, or
the third (fourth, etc.)-party defendant.

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


1. The party joining the causes of action shall comply with the rules on joinder Q: Who can be parties to a civil case? Who can file a civil action?
of parties A: Natural and juridical persons.
2. The joinder shall not include special civil actions governed by special rules Situation: The complaint states that the plaintiff if “Estate of the late
3. Where the causes of action are between the same parties but pertain to Juan dela Cruz v. Pedro, Sofia, and Maria.” Is an estate of a deceased
different venues or jurisdictions, the joinder may be allowed in the RTC allowed to file a complaint in the context of Sec 1 Rule 3?
provided one of the causes of action falls within the jurisdiction of said court
and the venue lies therein; and A: No. The proper party must have been the Heirs of the late Juan dela Cruz.
4. Where the claims in all the causes of action are principally for recovery of Because an estate is not a person and it does not have legal capacity, it cannot file
money the aggregate amount claimed shall be the test of jurisdiction. a complaint. (this is always asked in the bar)
Q: (first requisite) What is the rule on joinder of parties? Q: What must be alleged in the complaint about either the natural or
juridical persons?
A: It must arise out of the same transaction or series of transactions, involving the
same parties (same plaintiff and defendant) A: They must have the legal capacity to sue and be sued and it is a must in a
complaint that there always be a paragraph that provides among others that the
Q: (2nd requisite) How come that if it is a special civil action, joinder of parties referring to the plaintiff and the defendant must have the legal capacity to
parties is not allowed? sue and be sued.
A: Special civil action is governed by different rules and is governed by a separate set Q: If this the requirement that a person must have the capacity to sue
of procedures. and be sued, is it automatically therefore that a minor cannot file a case

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 10
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

or a minor cannot be sued, conversely speaking? Or an incompetent 2. Necessary parties – those who are not indispensable but ought to be
person, likewise? parties if complete relief is to be accorded as to those already parties, or
A: No. Because in civil cases minors and incompetent persons may be sued or may of a complete determination or settlement of the claim.
sue, however they must be assisted by their parents, or legal guardians as the case 3. Representative parties – those referred to in section 3 of this Rule.
maybe. 4. Quasi-parties – those on whose behalf a class or representative suit is
brought.
Real Parties in Interest 5. Pro-forma parties – those who are required to be joined as co-parties
in suits by or against another party as may be provided by the applicable
Relevant Provisions: substantive law or procedural rule (if what is involved in the case is an
Section 2. Parties in interest. - A real party in interest is the party who stands to be absolute community of property, when the case is filed, you should
benefited or injured by the judgment in the suit, or the party entitled to the avails of include the husband and wife as pro-forma parties.)
the suit. Unless otherwise authorized by law or these Rules, every action must be Q: What about if the parties are so numerous that it is impracticable to
prosecuted or defended in the name of the real party in interest. bring them all to court, what is that concept in our rules of procedure?

Section 3. Representatives as parties. - Where the action is allowed to be A: It is a class suit. The most common example is the taxpayers’ suit.
prosecuted or defended by a representative or someone acting in a fiduciary capacity, Q: What will happen if an indispensable party is not included in a civil
the beneficiary shall be included in the title of the case and shall be deemed to be the case?
real party in interest. A representative may be a trustee of an express trust, a A: A judgment cannot be had in an action.
guardian, an executor or administrator, or a party authorized by law or these Rules.
Q: Would this automatically follow that if you are a defendant, you will
An agent acting in his own name and for the benefit of an undisclosed principal may
file a motion to dismiss on the ground that an indispensable party is not
sue or be sued without joining the principal except when the contract involves things
included in the case?
belonging to the principal.
A: No. A misjoinder or nonjoinder of party is not a ground for a motion to dismiss
Section 4. Spouses as parties. - Husband and wife shall sue or be sued jointly,
because a party can always be included in any stage of the proceedings. (Just like
except as provided by law.
a misjoinder or nonjoinder of a cause of action is not a ground for a motion to
Section 5. Minor or incompetent persons. - A minor or a person alleged to be dismiss). While it may be true that an indispensable party is one who should be
incompetent, may sue or be sued, with the assistance of his father, mother, impleaded if you want that a final determination of the case can be had,
guardian, or if he has none, a guardian ad litem. nevertheless, it cannot be a ground for a motion to dismiss as a rule, because the

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


Q: In filing a civil case, particularly against a natural person, the civil case court may always require one to include an indispensable party by merely
must always be filed against who in particular? Can you just file the amending the complaint. It is only when the court orders you to implead an
complaint against anybody? indispensable party but you did not comply with the order, then the court now can
A: It must always be filed and defended in the name of a real party in interest. dismiss the case not on the ground of non-impleading of an indispensable party,
but failure to obey with a lawful order of the court.
Q: If a complaint is filed against one who is not a real party in interest,
what will be your remedy as the counsel of the defendant?
A: File a motion to dismiss on the ground of lack of cause of action. TN: What we do when an indispensable party is not impleaded, we always issue
an order requiring the plaintiff to amend the complaint to implead an indispensable
TN: A real party in interest is one who stands to be benefited or injured as a
party. But in itself is not a ground for a motion to dismiss because very clear in
consequence of the judgment rendered by the court insofar as that particular case is
section 11 of rule 3 that misjoinder or nonjoinder of a party is not a ground of a
concerned.
motion to dismiss. A party who is not joined can always be joined in any stage of
KINDS OF PARTIES the proceeding, a party who is misjoined can always be severed by the court in any
1. Indispensable parties – those without whom, no final determination can stage of the proceedings.
be had of an action.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 11
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Permissive joinder of parties is only allowed if the following elements or


Joinder of Parties requisites are present:
Relevant Provisions: 1. Right to relief arises out of the same transaction or series of transactions
2. There is a question of law or fact common to all the plaintiffs or
Section 6. Permissive joinder of parties. - All persons in whom or against whom any
defendants
right to relief in respect to or arising out of the same transaction or series of
3. Such joinder is not otherwise proscribed by the provisions of the rules on
transactions is alleged to exist, whether jointly, severally, or in the alternative, may,
jurisdiction and venue – meaning this case should involve the same
except as otherwise provided in these Rules, join as plaintiffs or be joined as
jurisdiction and the same venue
defendants in one complaint, where any question of law or fact common to all such
plaintiffs or to all such defendants may arise in the action; but the court may make
Relevant Provision:
such orders as may be just to prevent any plaintiff or defendant from being
Section 10. Unwilling co-plaintiff. - If the consent of any party who should be
embarrassed or put to expense in connection with any proceedings in which he may
joined as plaintiff can not be obtained, he may be made a defendant and the
have no interest.
reason therefor shall be stated in the complaint.
Section 7. Compulsory joinder of indispensable parties. - Parties in interest without
Q: There are instances when you are the plaintiff and you want another
whom no final determination can be had of an action shall be joined either as
person to join you as plaintiff, but that person refuses to join you as a
plaintiffs or defendants.
plaintiff, in the case, what will you do?
Section 8. Necessary party. - A necessary party is one who is not indispensable but
A: Make him or her as a defendant. This is what we call the effect of “unwilling co-
who ought to be joined as a party if complete relief is to be accorded as to those
plaintiff.” Under the rules, if co-plaintiff is unwilling to join you as a plaintiff in a
already parties, or for a complete determination or settlement of the claim subject of
particular civil case, make him as a defendant.
the action.
Section 9. Non-joinder of necessary parties to be pleaded. - Whenever in any Death of a Party/Parties
pleading in which a claim is asserted a necessary party is not joined, the pleader shall
set forth his name, if known, and shall state why he is omitted. Should the court find Relevant Provisions:
the reason for the omission unmeritorious, it may order the inclusion of the omitted Section 16. Death of party; duty of counsel. - Whenever a party to a pending
necessary party if jurisdiction over his person may be obtained. action dies, and the claim is not thereby extinguished, it shall be the duty of his
The failure to comply with the order for his inclusion, without justifiable counsel to inform the court within thirty (30) days after such death of the fact

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


cause, shall be deemed a waiver of the claim against such party. The non- thereof, and to give the name and address of his legal representative or
inclusion of a necessary party does not prevent the court from proceeding in the representatives. Failure of counsel to comply with this duty shall be a ground for
action, and the judgment rendered therein shall be without prejudice to the rights of disciplinary action.
such necessary party. The heirs of the deceased may be allowed to be substituted for the
Section 11. Misjoinder and non-joinder of parties. - Neither misjoinder nor non- deceased, without requiring the appointment of an executor or administrator and
joinder of parties is ground for dismissal of an action. Parties may be dropped or the court may appoint a guardian ad litem for the minor heirs.
added by order of the court on motion of any party or on its own initiative at any The court shall forthwith order said legal representative or representatives
stage of the action and on such terms as are just. Any claim against a misjoined party to appear and be substituted within a period of thirty (30) days from notice.
may be severed and proceeded with separately. If no legal representative is named by the counsel for the deceased party,
Q: Is joinder of parties allowed in our rules? Is it Mandatory? or if the one so named shall fail to appear within the specified period, the court
A: No. Because the law uses the word “permissive” may order the opposing party, within a specified time, to procure the appointment
of an executor or administrator for the estate of the deceased and the latter shall
Q: While the law talks about permissive joinder of parties, meaning you immediately appear for and on behalf of the deceased. The court charges in
can join any party in a case, however, is this applicable to all the procuring such appointment, if defrayed by the opposing party, may be recovered
classification of parties? as costs.
A: No. This particular rule does not apply to: indispensible and necessary parties
because they are mandated to be joined as parties, from their definition alone.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 12
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Section 18. Incompetency or incapacity. - If a party becomes incompetent or A: There is no outright prohibition, but there a Supreme Court decision which held
incapacitated, the court, upon motion with notice, may allow the action to be that as much as possible, the clerk of court should not be appointed because she is
continued by or against the incompetent or incapacitated person assisted by his legal already busy with other tasks.
guardian or guardian ad litem. Q: What will happen if the defendant dies after entry of the final
Section 19. Transfer of interest. - In case of any transfer of interest, the action may judgment, will the case continue or not? What will you do as the counsel
be continued by or against the original party, unless the court upon motion directs of the plaintiff?
the person to whom the interest is transferred to be substituted in the action or A: It may be continued and enforced against the estate of the deceased person.
joined with the original party.
Relevant Provision:
Q: While the case was already going on, one of the parties (plaintiff or
Section 17. Death or separation of a party who is a public officer. - When a public
defendant) to a civil case dies, what will happen? Will the case be
officer is a party in an action in his official capacity and during its pendency dies,
dismissed?
resigns, or otherwise ceases to hold office, the action may be continued and
A: It depends, if the case involves a real right, lien thereon, or if involves injury or maintained by or against his successor if, within thirty (30) days after the
tort. If it involves any of these, the case will not be dismissed even if one of the successor takes office or such time as may be granted by the court, it is
parties dies. satisfactorily shown to the court by any party that there is a substantial need for
Q: What is the obligation of the counsel, if one of the parties dies? (Counsel continuing or maintaining it and that the successor adopts or continues or
of the plaintiff or counsel of the defendant) threatens to adopt or continue the action of his predecessor. Before a substitution
A: The counsel shall notify the court of the death of any party within 30 days from is made, the party or officer to be affected, unless expressly assenting thereto,
death thereof. In the notice of death, he shall also include therein the name of the shall be given reasonable notice of the application therefor and accorded an
heirs and legal representatives of the deceased party, including their addresses. If opportunity to be heard.
the counsel fails to do this within 30 days, the counsel maybe subjected to Q: There are cases which are filed or maybe filed for or against a
disciplinary action. government official, like, Department of Education, Culture and Sports
Q: If the notice of death, which includes the names of the heirs and the represented by its Regional Director, or versus the Regional Director of
legal representatives of the deceased party, is already filed in court, what this government office, presumably they are included in the suit because
will the court do now in connection with that particular notice? they were sued in the performance of their official duties. Since it will
take a little time, particularly insofar as civil cases are concerned, there
A: The court shall order the legal representatives or heirs to appear in court within 30
are times that this Regional Director is transferred to another region, or

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


days from receipt of the order, to inform the court whether or not they are willing to
while the case is going on, this regional Director actually resigned, or
substitute for the deceased party.
was dismissed or retired. What will happen here? Can the case proceed
TN: To implead these particular heirs, there is no need to for the plaintiff to amend with the new Regional Director now?
the complaint or the by issuing an order to the heirs or legal representatives. An
A: The successor shall take the place former public officer if, within 30 days after
order issued by the court is sufficient to acquire jurisdiction over them.
the successor takes officer or such time as maybe granted by the court, it is
Q: What about if in spite receipt of the order, nobody came to court, or satisfactorily shown that there is a substantial need for continuing or maintaining
there were some who came to court but they informed the court that they it.
are not willing to substitute for the deceased party, what will happen then?
A: The court may order the opposing party to procure the appointment of the
Indigent Party
administrator or administratrix of that deceased party. Any expenses incurred by the
opposing party in the filing of the petition shall be considered as costs as far as that Relevant Provision:
particular case is concerned. If this is not done, (appointment of an administrator or
Section 21. Indigent party. - A party may be authorized to litigate his action,
administratrix if the heirs are not willing) the case definitely will not proceed.
claim or defense as an indigent if the court, upon an ex parte application and
Q: Can the judge appoint the clerk of court (as administrator)? hearing, is satisfied that the party is one who has no money or property sufficient
and available for food, shelter and basic necessities for himself and his family.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 13
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Such authority shall include an exemption from payment of docket and other Section 15. Entity without juridical personality as defendant. - When two or more
lawful fees, and of transcripts of stenographic notes which the court may order to be persons not organized as an entity with juridical personality enter into a
furnished him. The amount of the docket and other lawful fees which the indigent transaction, they may be sued under the name by which they are generally or
was exempted from paying shall be a lien on any judgment rendered in the case commonly known.
favorable to the indigent, unless the court otherwise provides. In the answer of such defendant, the names and addresses of the
Any adverse party may contest the grant of such authority at any time persons composing said entity must all be revealed.
before judgment is rendered by the trial court. If the court should determine after Q: What is the concept of alternative defendants?
hearing that the party declared as an indigent is in fact a person with sufficient
income or property, the proper docket and other lawful fees shall be assessed and A: There are many defendants and you are not sure as to whom would you file the
collected by the clerk of court. If payment is not made within the time fixed by the case, so what you should do is to file a case against these defendants alternatively
court, execution shall issue for the payment thereof, without prejudice to such other or alternately, but you must explain the reasons why you are doing it.
sanctions as the court may impose. Q: How will you do it? What should be the proper word?
Q: You are indigent, you want to file a case for recovery of ownership with A: Use the word “or” (i.e. A or C or B…) to show that you are suing them
damages, there is filing fee which is very high because the property is alternatively or alternately.
located in Tacloban, you cannot afford, what will you do so that you can file
that case? Assuming there is no Public Attorney’s Office in that particular RULE 4
place. VENUE OF ACTIONS
A: File the complaint and attach a motion to litigate as “Pauper.” But you have to
prove in court that you are indeed a proper litigant. You have to prove that you no Relevant Provisions:
sufficient income, you have to prove that you have no properties and you can even Section 1. Venue of real actions. - Actions affecting title to or possession of real
present a certification of indigency which is usually issued by the DSWD. Once the property, or interest therein, shall be commenced and tried in the proper court
court is convinced, the court grants your motion and will accept your complaint which has jurisdiction over the area wherein the real property involved, or a
without the requisite payment of the filing fee and other fees because the court portion thereof, is situated.
treats you as a pauper litigant. However, whatever may be the results of the case, it Forcible entry and detainer actions shall be commenced and tried in the
will be considered as a lien later for payment actually of the supposed to be filing municipal trial court of the municipality or city wherein the real property involved,
fees as mandated by the rules. or a portion thereof, is situated.

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


TN: If the case is filed by the PAO, actually it is free including stenographic notes but Section 2. Venue of personal actions. - All other actions may be commenced and
not sheriff’s fee for service of summons. All others are actually free tried where the plaintiff or any of the principal plaintiffs resides, or where the
In the Case of Ballatan, it was ruled that the fees on legal actions depends defendant or any of the principal defendants resides, or in the case of a non-
already on the value of the property and where the property is located. resident defendant where he may be found, at the election of the plaintiff.
Section 3. Venue of actions against non-residents. - If any of the defendants does
Relevant Provisions: not reside and is not found in the Philippines, and the action affects the personal
status of the plaintiff, or any property of said defendant located in the Philippines,
Section 13. Alternative defendants. - Where the plaintiff is uncertain against who of the action may be commenced and tried in the court of the place where the
several persons he is entitled to relief, he may join any or all of them as defendants plaintiff resides, or where the property or any portion thereof is situated or found.
in the alternative, although a right to relief against one may be inconsistent with a
right of relief against the other. Section 4. When Rule not applicable. - This Rule shall not apply:
Section 14. Unknown identity or name of defendant. - Whenever the identity or (a) In those cases where a specific rule or law provides otherwise; or
name of a defendant is unknown, he may be sued as the unknown owner, heir, (b) Where the parties have validly agreed in writing before the filing of the action
devisee, or by such other designation as the case may require; when his identity or on the exclusive venue thereof.
true name is discovered, the pleading must be amended accordingly.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 14
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Q: Where to file? A: In Tacloban. Because the law says that is should be the actual residence where
A: It depends on whether it is a real action or personal action or it is an action the party is actually residing and not in the domicile.
involving a defendant who is not and cannot be found in the Philippines. TN: There is a difference between residence and domicile. We have only one
*Note: Determine the difference between personal action, real action and mixed domicile, but we can have more than one residence. But insofar as venue is
action (in the book of Regalado) concerned, residence is not domicile, residence means where you are actually
residing.
Q: Where to file if it is a real action?
Q: What about if the defendant is not a residence of the Philippines, he is
A: In a place where any of the real property or any portion thereof is
a foreigner?
situated/located.
A: If it involves personal status of the plaintiff, meaning it is a personal action, is
Q: What about if there are several properties which are involved and these
should be filed where the plaintiff resides. But if it is a real action, it should be filed
properties are actually situated in different provinces? (For example one is
where the property or any portion thereof is actually situated.
in Tacloban, the other one is in Sta. Rita, and you want to file a case
involving any of these properties or both of these properties, so where you
file it? Can you file that at RTC Tacloban, or can you file that at RTC Basey? RULE 5
Or either? If we presume that the assessed value is more than P20,000.00) UNIFORM PROCEDURE IN TRIAL COURTS
A: Either RTC Tacloban or RTC Basey. The law says that you can file that in any of
the cities or provinces where the property is located. Because these are covered by Relevant Provisions:
the same transaction. But if these are separate transaction, meaning to say there are
Section 1. Uniform procedure. — The procedure in the Municipal Trial Courts shall
two separate deeds of absolute sale involving one property in Tacloban and one
be the same as in the Regional Trial Court , except (a) where a particular provision
property in Basey, you can only file that separately. But if it arouse out of the same
expressly or impliedly applies only to either of said courts, or (b) in civil cases
transaction, you can file that in any of the cities where any of the properties is
governed by the Rule on Summary Procedure .
located.
Section 2. Meaning of terms. — The term "Municipal Trial Courts" as used in
TN: Surrender of title, issuance of the new owners of title, reconstitution of
these Rules shall include Metropolitan Trial Courts, Municipal Trial Courts in Cities,
title…these are real actions, where you file the case in the place where the property
Municipal Trial Courts, and Municipal Circuit Trial Courts.
is situated.
Examples: General Rule: The procedure in the First level courts is the same with the

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


procedure in the Regional Trial Courts.
1. You lost the owner’s copy of your title because of typhoon Yolanda, you want to
apply for a new owner’s title, this is a real action. So you file that before the RTC Exceptions:
where the property is located. 1. Where a particular provision expressly or impliedly applies only to either
2. The title of your property is in the hand of another person and that person refuses of said courts
to turn over the property to you, again you want to file a complaint for surrender of 2. Cases governed by the Rules on Summary Procedure
title, that is a real action and venue should be where the property is located. Q: What are the cases within the First Level Courts which are covered by
the Rules on Summary Procedure?
3. The title before the office of the Registry of Deeds is lost, but you have the
owner’s copy, so file for reconstitution of title, this is a real action. You file that in a 1. Unlawful detainer and Forcible Entry cases – irrespective of the assessed
place where the property is located. value, as long as the main cause of action is unlawful detainer or forcible,
it is still under the First Level Courts and covered by the Rules on
Q: What if it is personal action? Where to file? Summary Procedure.
A: In the residence of the plaintiff or at the residence of the defendants, at the 2. Personal action with total claim not exceeding 100,000 pesos
option or election of plaintiff. Meaning, the plaintiff has the choice. TN: Personal actions the claim of which is not exceeding 300,000 pesos or 400,000
Situation: I’m from Culaba Biliran, that’s my domicile, but I am residing currently in pesos in Metro Manila are within the jurisdiction of the First level courts. If not
Tacloban City. So if I will file a case, where will I file that? exceeding 100,000 pesos, it is under the First level court but covered by the Rules
on Summary Procedure. It must be exclusive of damages, attorney’s fees, litigation

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 15
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

costs, etc. unless your main cause of action is for damages in which case, count the conduct trial, the court will now decide on the case based on the position papers
entire claim of damages for the purposes of jurisdiction. along with the affidavits submitted. This is to serve the purpose of the summary
It does not exclusively apply to collection for the sum of money only. It applies to procedure, which is to speed up the disposition of cases.
all cases under the First level courts with a claim not exceeding 100,000 6. Appeal
pesos. - The case can be appealed to the RTC although it will no longer be
covered by the Rules on Summary Procedure. While it is true that Motion for
FEATURES OF THE RULES ON SUMMARY PROCEDURE Reconsideration and Motion for New Trial are prohibited pleadings, appeal can still
be availed of within 15 days from the judgment of the MTC.
1. Non-extendible 10 days to file the responsive pleadings from the
- Before the RTC, the case is no longer governed by the Rules on
day of service of summons; in regular rules, it is 15 days
Summary Procedure. Therefore, if the RTC renders a decision, the losing party can
now file a motion for reconsideration because it is no longer a prohibited pleading.
Q: What will happen if the defendant fails to file his responsive pleading?
A: The court may muto proprio render judgment or the plaintiff can file a motion to RULE 6
render judgment. KINDS OF PLEADINGS
TN: In regular rules, you file a motion to declare the defendant in default but
it is not allowed in cases covered by the Rules on Summary Procedure. Relevant Provisions:
2. Prohibited pleadings Section 1. Pleadings defined. — Pleadings are the written statements of the
General Rule: Motion to dismiss is not allowed respective claims and defenses of the parties submitted to the court for
Exception: If the motion to dismiss is on the following grounds: appropriate judgment.
a. Lack of jurisdiction over the subject matter Section 2. Pleadings allowed. — The claims of a party are asserted in a complaint,
counterclaim, cross-claim, third (fourth, etc.)-party complaint or complaint-in-
b. Failure to comply with the condition precedent (requirement of conciliation
intervention.
before the Lupon)
The defenses of a party are alleged in the answer to the pleading
Other prohibited pleadings: Motion for extension of time, motion for new trial, motion
asserting a claim against him.
for reconsideration
An answer may be responded to by a reply.
3. Preliminary Conference

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- Under the regular rules, what is conducted is a Pre-trial conference but in Section 3. Complaint. – The complaint is the pleading alleging the plaintiff’s cause
summary procedure it is called as preliminary conference. Basically, the same things or causes of action. The names and residences of the plaintiff and defendant must
are done like marking of exhibits, proposals for stipulation, no. of witnesses to be be stated in the complaint.
presented and the issues of the case. Section 4. Answer. - An answer is a pleading in which a defending party sets
4. Submission of affidavits forth his defences.
- You cannot present the witness unless that witness has executed an Section 5. Defenses. – Defenses may either be negative or affirmative.
affidavit. Such affidavit must be based on his personal knowledge. But with the (a) A negative defense is the specific denial of the material fact or facts
advent of SC Circular 12-8-8 (Judicial Affidavit Rule), you can submit now a judicial alleged in the pleading of the claimant essential to his cause or causes of action.
affidavit instead of just an affidavit.
(b) An affirmative defense is an allegation of a new matter which, while
TN: Under the regular rules, judicial affidavits are really required. However, for cases hypothetically admitting the material allegations in the pleading of the claimant,
under the summary procedure, the rules only speak of affidavits. But you can still would nevertheless prevent or bar recovery by him. The affirmative defences
choose to submit judicial affidavits instead of affidavits. include fraud, statute of limitations, release, payment, illegality, statute of frauds,
5. A full-blown trial is not needed not unless the court needs to ask estoppels, former recovery, discharge in bankruptcy, and any other matter by way
some clarificatory questions. of confession and avoidance.
- After the preliminary conference, the court will require the parties to
submit their respective position papers. If the court thinks that there is no need to

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 16
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Q: Is a motion to dismiss a pleading? TN: If you do not specifically deny the allegations of the complaint, the allegations
A: No, it is not a pleading. It was not mentioned in Rule 6, Sec. 2 of the Rules of Civil in the complaint are deemed admitted. There are 3 exceptions:
Procedure in the enumeration of pleadings. 1. Amount of unliquidated damages
Q: In filing an answer, what should the defendant do? 2. Conclusions of the pleading
3. Non-material allegations are not deemed admitted
1. Raise specific denials or negative defenses
2. Raise affirmative defences
Counterclaims, Cross-claims & Third-Party Complaint
TN: There is an agreement between the Supreme Court and the Integrated Bar of
the Philippines that lawyers must observe restrain or caution in filing a motion to
Relevant Provisions:
dismiss. What the lawyer should do is to make his ground for a motion to dismiss as
an affirmative defense in the answer. So you file your answer, if there are some Section 6. Counterclaim. – A counterclaim is any claim which a defending party
grounds that you feel are grounds for a motion to dismiss, make that as special and may have against an opposing party.
affirmative defenses. It is settled that once the answer raises special and affirmative Section 7. Compulsory counterclaim. – A compulsory counterclaim is one which,
defenses, it is as if the defendant was able to file a timely motion to dismiss. being cognizable by the regular courts of justice, arises out of or is connected with
the transaction or occurrence constituting the subject matter of the opposing
party’s claim and does not require for its adjudication the presence of third parties
Situation: In reference to specific denial which is required by an answer, how do
of whom the court cannot acquire jurisdiction. Such a counterclaim must be within
you do this? You received a complaint and in your answer you said that defendants
the jurisdiction of the court both as to the amount and the nature thereof, except
specifically denied paragraphs 2, 3, and 4 of the complaint. Would that constitute as
that in an original action before the Regional Trial Court, the counterclaim may be
a denial which is contemplated by the provisions of the rules?
considered compulsory regardless of the amount.
A: No, that would constitute as a general denial.
TN: In the answer, aside from raising a special and affirmative defenses, the
TN: When you specifically deny, you must see to it that you should state the reason defendant can also raise a counterclaim. A counterclaim therefore is a claim by the
why you are specifically denying the same. Because if you only say that you defendant against the plaintiff. Your complaint may answer with special and
specifically deny without specifying a ground or reason why you specifically deny the affirmative defenses and with counterclaim. All together in one answer. A
same and in the Rules it will constitute as general denial and being a general denial, counterclaim is a claim by the defendant against the plaintiff.
it is actually an admission in so far as the allegations of the complaint is concerned.
Simply because you used “specifically denied” does not mean that you already Q: Where lies the difference between a permissive counterclaim to a

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specifically denied. compulsory counterclaim?
COMPULSORY COUNTERCLAIM – one which arises out of or is necessarily
connected with the transaction or occurrence that is the subject matter of the
NEGATIVE PREGNANT RULE - is a denial which merely reiterates or repeats the opposing party’s claim. It is barred if not set up in the action. If you have a
allegations in a complaint. And a negative pregnant defense is not actually a denial compulsory counterclaim, see to it that it must be stated in the answer because if
but rather an admission in contemplation of the rules. you don’t allege a compulsory counterclaim in your answer, it is deemed waived.
Example: Paragraph 2 of plaintiff’s complaint is denied because it is not true that This is also known as “recoupment”.
defendant entered into a contract with the plaintiff on such and such a day. Claims for attorney’s fees, moral damages, exemplary damages and actual
damages are the common example of compulsory counterclaims.
Q: What if the denial would say, defendant denies paragraphs 2, 3, and 4 of PERMISSIVE COUNTERCLAIM – it does not arise out of nor is it necessarily
the complaint having no knowledge or information sufficient to form a connected with the subject-matter of the opposing party’s claim. It is not barred
belief as to the truth or falsity of the allegations contained therein. Is it a even if not set up in the action. This is also known as “set-off”.
good denial? TN: Compulsory counterclaims need not be answered since it is inseparable from
A: Yes, this is a good denial in contemplation with the Rules especially if you are the allegations of the complaint itself. Under the Rules, when there is a
running out of arguments. counterclaim raised by the defendant particularly if it is a permissive counterclaim,
see to it that you must file an answer to the permissive counterclaim. Otherwise, it
will be deemed admitted in so far as the court is concerned and it will be

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 17
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

detrimental to the plaintiff. The answer must be filed within 10 days from receipt of TN: A cross-claim is a claim of one party against a co-party. It must also be
the pleading being responded to. However, even if no answer is filed, the issues of answered to within 10 days from receipt of the pleading being responded to.
the case are already deemed joint and the case is ready for preliminary conference Example: A complaint was filed by A versus B, C, and D, defendants. In a cross-
and pretrial. claim, B can file a crossclaim against C and D or C can file a crossclaim against B
Relevant Provision: and D, and vice versa.
Section 10. Reply. – A reply is a pleading, the office or function of which is to deny, Q: What is a third-party complaint?
or allege facts in denial or avoidance of new matters alleged by way of defense in the A: A third-party complaint is where a defendant, with leave of court, files a
answer and thereby join or make issue as to such new matters. If a party does not complaint against a person who’s not yet a party to the case.
file such reply, all the new matters alleged in the answer are deemed controverted.
TN: It might be that the plaintiff chose not to include one person as a defendant
If the plaintiff wishes to interpose any claims arising out of new matters so but at the end of the day, the liability is supposed to be on that person. So the
alleged, such claims shall be set forth in an amended or supplemental complaint. defendants can file a third-party complaint. A third-party complaint will always
Q: Upon receipt of the answer, what is supposed to be the next pleading require a leave of court. Meaning, you file a motion to allow the filing of third-party
which may be filed by the plaintiff? complaint, there is always a required order of the Court granting the said third-
party complaint. You cannot just do that any time. There must be a motion to file a
A: File a reply. But as a general rule, the filing of a reply is optional because anyway,
third-party complaint. And so on and so forth.
even if a reply is not filed, upon the filing of the answer, the issues of the case are
already deemed joined.
Cases where a reply is mandatory RULE 7
1. Allegation of usury or cases in violation of usury laws PARTS OF A PLEADING
2. Cases involving actionable documents
Relevant Provision:
TN: A reply under oath is necessary for these cases. Failure to file a reply under oath
is tantamount to admission as to the due execution and genuineness of that Section 4. Verification. – Except when otherwise specifically required by law or
actionable document. Therefore, you could no longer raise as a defense that the rule, pleadings need not be under oath, verified or accompanied by affidavit.
document is forged, that you were only compelled to sign the document because of A pleading is verified by an affidavit that the affiant has read the pleading
force and intimidation, or that there was already fraud. and that the allegations therein are true and correct of his personal knowledge or

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based on authentic records.
Relevant Provisions: A pleading required to be verified which contains a verification based on
Section 8. Cross-claim. – A cross-claim is any claim by one party against a co-party “information and belief” or upon “knowledge, information and belief,” or lacks a
arising out of the transaction of occurrence that is the subject matter of either of the proper verification, shall be treated as an unsigned pleading.
original action or of a counterclaim therein. Such cross-claim may include a claim that
the party against whom it is asserted is or may be liable to the cross-claimant for all Q: Is a pleading required to be verified?
or part of a claim asserted in the action against a cross-claimant. A: Pleadings may not be verified unless they fall under the pleadings required to
be verified under the Rules.
Section 9. Counter-counterclaims and counter-cross-claim. A counterclaim may be TN: The pleading must be signed by the counsel because unsigned pleading
asserted against a original counter-claimant. produces no legal effect. It is as if it is not filed. It will not even be accepted by the
A cross-claim may also be filed against an original cross-claimant. Court.
Section 11. Third, (fourth, etc.)-party complaint. - A third (fourth, etc.)-party Q: What is the effect if the pleading or any motion does not contain the
complaint is a claim that a defending party may, with leave of court, file against a MCLE compliance number of the counsel?
person not a party to the action, called the third (fourth, etc.)-party defendant, for
A: Under Bar Matter No. 1944, it will not be a ground for dismissal because that
contribution, indemnity, subrogation or any other relief, in respect of his opponent’s
would be unfair to the client. However, the lawyer will subject to certain
claim.
administrative sanctions like disbarment and suspension.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 18
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Q: Verification is not required in all cases but when you become a lawyer, Q: What’s in a certification of non-forum shopping?
you should verify always your complaint or your answer. How do you A: It is a proof that at the time of filing of that case, there is no other pending case
verify? involving the same cause of action. Or if you learn of a pending case, upon filing,
A: When you verify, you must say that “I have read and understood the same and you must also inform the court about it. Aside from the fact that case will be
that the allegations contained therein are true and correct based on my own personal dismissed, the lawyer can also be subjected to certain administrative liability.
knowledge and based on authentic documents.” A verification that says based on
“information and belief” is not a verification as required by the Rules.
Example: “I, Juan dela Cruz, of legal age, married and a resident etcetc, that I am
RULE 8
the plaintiff in the above entitled case, that I caused the preparation of the forgoing
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
complaint, and that I have read the allegations contained therein and the same are
true and correct to the best of my own knowledge and belief.”
Relevant Provisions:
TN: Community tax certificate or resident certificate as early as 2008, is not
considered as efficient identity, in any affiant or any document which a lawyer Section 1.In general. — Every pleading shall contain in a methodical and logical
prepares. It is not a proof of identity, instead it must be a government issued ID. form, a plain, concise and direct statement of the ultimate facts on which the party
Using CTC may be a ground for the dismissal of your petition. pleading relies for his claim or defense, as the case may be, omitting the statement
of mere evidentiary facts.
Certification of Non-Forum Shopping If a defense relied on is based on law, the pertinent provisions thereof and their
applicability to him shall be clearly and concisely stated.
Relevant Provision:
Section 2.Alternative causes of action or defenses. — A party may set forth two
Section 5. Certificate against forum shopping. – The plaintiff or principal party shall or more statements of a claim or defense alternatively or hypothetically, either in
certify under oath in the complaint or other initiatory pleading asserting a claim for one cause of action or defense or in separate causes of action or defenses. When
relief, or in a sworn certification annexed thereto and simultaneously filed therewith: two or more statements are made in the alternative and one of them if made
(a) that he has not theretofore commenced any action or filed any claim involving the independently would be sufficient, the pleading is not made insufficient by the
same issues in any court, tribunal or quasi-judicial agency and, to the best of his insufficiency of one or more of the alternative statements.
knowledge, no such other action or claim in pending therein; (b) if there is such
Section 3.Conditions precedent. — In any pleading a general averment of the
other pending action or claim, a complete statement of the present status thereof;
performance or occurrence of all conditions precedent shall be sufficient.

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


and (c) if he should thereafter learn that the same or similar action or claim has been
filed or is pending, he shall report that fact within five (5) days therefrom to the court TN: According to the Rule, when you make a complaint, see to it that the
wherein his aforesaid complaint or initiatory pleading has been filed. complaint will only contain the ultimate facts as required to you to prove the cause
Failure to comply with the foregoing requirements shall not be curable by of action. Vis-à-vis the acts or omissions of the defendant which gave rise to the
mere amendment of the complaint or other initiatory pleading but shall be cause for plaintiff’s filing a case against the defendant. It need not include evidentiary facts.
the dismissal of the case without prejudice, unless otherwise provided, upon motion Evidentiary facts are facts which tend to prove the ultimate facts as alleged in the
and after hearing. The submission of a false certification on non-compliance with any complaint.
of the undertakings therein shall constitute indirect contempt of court, without Q: What if there is a condition precedent like the conciliation
prejudice to the corresponding administrative and criminal actions. If the acts of the requirement before the Lupong Tagpamayapa if parties are residents of
party or his counsel clearly constitute willful and deliberate forum shopping, the same the same place, how do you allege that in the complaint? What is the
shall be ground for summary dismissal with prejudice and shall constitute direct Rule?
contempt, as well as a cause for administrative sanctions. A: It is sufficient to avert it generally. You just mention in the pleading that there
TN: A certification of non-forum shopping applies only to initiatory pleading and this was compliance with the condition precedent prior to the filing of the case. It need
always involve complaints. Meaning, the first pleading that one would file to the court not be specifically mentioned because the rule says that it is sufficient that you
must always contain a certification of non-forum shopping. As of now, if the initiatory aver, my dear students, that there was compliance with the condition precedent
pleading does not contain a certification of non-forum shopping, incontestably that generally. A general averment is sufficient.
complaint would warrant dismissal.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 19
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Relevant Provision TN: The law says that it is required by our rule that in so far as the allegations of
Section 4.Capacity. — Facts showing the capacity of a party to sue or be sued or the fraud or mistake are concerned, this must be specifically averred. Meaning the acts
authority of a party to sue or be sued in a representative capacity or the legal constituting fraud and mistake must be specifically alleged in the complaint.
existence of an organized association of person that is made a party, must be Otherwise, if you just aver that generally, then it will not comply with the
averred. A party desiring to raise an issue as to the legal existence of any party or requirements of Rule 8 of 1997 Ruled of Civil Procedure. All others, the rule says it
the capacity of any party to sue or be sued in a representative capacity, shall do so may be averred generally.
by specific denial, which shall include such supporting particulars as are peculiarly
within the pleader's knowledge. Pleading a Judgment

TN: You must also allege in the complaint the capacity of the party to sue or to be Relevant Provision:
sued. That’s actually the 2nd paragraph of every complaint after the residences and Section 6. Judgment. - In pleading a judgment or decision of a domestic or
the status of the parties. The second requirement is always that the plaintiff and the foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is
defendants have the capacity to sue and be sued. So that if you are representing sufficient to aver the judgment or decision without setting forth matter showing
somebody, it must also be alleged in what manner are you representing the plaintiff.
jurisdiction to render it.
For example, Juan dela Cruz represented by Pedro dela Cruz. The allegation of the
complaint would say that Juan dela Cruz of legal age, married, herein represented by Q: You want to allege that a judgment or decision was already rendered
Pedro dela Cruz who is of legal age etc etc. and as likewise the capacity to sue. which form part as the basis of your cause of action, what did the rule
says there?
Fraud, mistake, condition of the mind A: To set forth the judgment rendered in the complaint, it is not necessary that
you must also state that the court which rendered the judgment has jurisdiction
Relevant Provision over the subject matter of the case. It is enough that you must allege in the
Section 5.Fraud, mistake, condition of the mind. - In all averments of fraud or complaint that a judgment was rendered by the court.
mistake, the circumstances constituting fraud or mistake must be stated with
particularity. Malice, intent, knowledge or other condition of the mind of a person Action or defense based on actionable documents
may be averred generally.
Relevant Provisions:
Situation: You want to establish, like contracts for example, intent, malice, condition
of the mind. Would you specifically allege in the complaint, this malice, this intent, Section 7.Action or defense based on document. - Whenever an action or defense

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


this condition of the mind of the plaintiff? For example, your case is one for is based upon a written instrument or document, the substance of such instrument
annulment of contract and you allege that the plaintiff was incapacitated at that time or document shall be set forth in the pleading, and the original or a copy thereof
because he was insane? What is required of the Rule? shall be attached to the pleading as an exhibit, which shall be deemed to be a part
of the pleading, or said copy may with like effect be set forth in the pleading.
A: Aver generally because in Criminal Law, malice and intent is very difficult to prove.
It is a state of mind. So any allegations on the condition of the mind of the person Section 8.How to contest such documents. - When an action or defense is
need not specifically averred in the complaint. A general averment just like a founded upon a written instrument, copied in or attached to the corresponding
condition precedent is sufficient. pleading as provided in the preceding section, the genuineness and due execution
of the instrument shall be deemed admitted unless the adverse party, under oath,
Q: However, if this is an annulment of contract then you are trying to annul specifically denies them, and sets forth what he claims to be the facts; but the
the contract because there was a fraud or mistake. What is the rule? requirement of an oath does not apply when the adverse party does not appear to
A: You must specifically aver the acts constituting fraud and mistake unlike condition be a party to the instrument or when compliance with an order for an inspection of
of mind, malice, intent which may be averred generally it is different if this is fraud or the original instrument is refused.
mistake. Section 9.Official document or act. - In pleading an official document or official
Example: Annulment of contract on the ground of VIMFU – violence, intimidation, act, it is sufficient to aver that the document was issued or the act done in
mistake, fraud, undue influence. The plaintiff filed an action to annul the contract compliance with law.
which he entered into with the defendant alleging that he was defrauded or there
was mistake.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 20
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Q: We were talking about actionable documents and in fact I was telling if actionable document otherwise, according to the rules, it is deemed admitted
what is involved is actionable document. What did we discuss about it particularly the genuineness and due execution
when what is involved is an actionable document, is a reply mandatory? Furthermore, if what is involved is an actionable document see to it that
A: Yes, a reply is mandatory otherwise the due execution and the genuineness of aside from denying that under oath, you must also file a reply within 10 days from
that actionable document is deemed admitted. receipt of the pleading being replied to otherwise, what we discussed earlier, due
Q: Your cause of action is based on an alleged violation of an actionable execution and genuineness of that particular document is deemed admitted. If due
document. How would you allege that in the complaint? The other one is execution has been admitted, you cannot claim that your signature was forged.
how would you contest it. Here, that is your cause of action. You will say Q: Upon receipt of the summons, what are the remedies which can be
annulment of contract and a contract is an actionable document. How would you done by a defendant?
allege an actionable document in the complaint? For example, violation of 1. Motion to dismiss
promissory note. So that’s definitely a cause of action. How do you allege that 2. File an answer with affirmative defenses
actionable document in your complaint? - use the ground for the motion to dismiss as special and affirmative
A: There are 2 ways of pleading of actionable documents: defenses.
1. Set forth the substance of that actionable document then attach as an 3. Motion for Bill of Particulars
exhibit the document itself. - if the allegations therein are so broad in general and you cannot just
2. Just copy in verbatim the contents of that particular document itself. make an intelligent answer.

TN: Even without a reply, a defendant can contest an actionable document if: RULE 9
EFFECT OF FAILURE TO PLEAD
1. If the defendant is not a party to such document
2. There is an order for the inspection of the document but is not complied
with.
Relevant Provisions:
Specific denial of allegations Section 1. Defenses and objections not pleaded. - Defenses and objections not
pleaded either in a motion to dismiss or in the answer are deemed waived.
Relevant Provisions: However, when it appears from the pleadings or the evidence on record that the
Section 10.Specific denial. - A defendant must specify each material allegation of court has no jurisdiction over the subject matter, that there is another action

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


fact the truth of which he does not admit and, whenever practicable, shall set forth pending between the same parties for the same cause, or that the action is barred
the substance of the matters upon which he relies to support his denial. Where a by a prior judgment or by statute of limitations, the court shall dismiss the claim.
defendant desires to deny only a part of an averment, he shall specify so much of it Section 2.Compulsory counterclaim, or cross-claim, not set up barred. - A
as is true and material and shall deny only the remainder. Where a defendant is compulsory counterclaim, or a cross-claim, not set up shall be barred. law.
without knowledge or information sufficient to form a belief as to the truth of a Q: In the context of filing an answer and filing a motion to dismiss, is it
material averment made in the complaint, he shall so state, and this shall have the required that you must raise all available defenses which will be used by
effect of a denial. way of defense?
Section 11.Allegations not specifically denied deemed admitted. - Material averment General rule: All the defenses of the defendant must be in the answer or in the
in the complaint, other than those as to the amount of unliquidated damages, shall motion to dismiss otherwise it is deemed waived.
be deemed admitted when not specifically denied. Allegations of usury in a complaint
to recover usurious interest are deemed admitted if not denied under oath. Exceptions: If the defense is any of the following:
1. Lack of jurisdiction
TN: Specifically deny under oath the allegations in the actionable document unless,
the defendant is not a party to the instrument or there was an order for the - Lack of jurisdiction over the subject matter of the case can be raised at
inspection of that particular document which was however refused by the defendant. any stage of the proceedings even for the first time on appeal except to the extent
Very important to deny the defendant specifically under oath that particular of the case of Tijam vs. Sibonghanoy, where the Supreme Court applied the
principle of estoppel.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 21
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

2. Litis Pendentia or pending case (c) Effect of partial default. - When a pleading asserting a claim states a
3. Res Judicata common cause of action against several defending parties, some of
whom answer and the others fail to do so, the court shall try the case
4. Prescription
against all upon the answers thus filed and render judgment upon the
TN: If one of these 4 defenses is not alleged in the answer, these are not waived. evidence presented.
Meaning you can raise this at any stage of the proceedings.
(d) Extent of relief to be awarded. - A judgment rendered against a party in
Q: You have 15 days to file an answer. We call it a responsive pleading. Can default shall not exceed the amount or be different in kind from that
this be extended? prayed for nor award unliquidated damages.
General rule: Yes, it can be extended. In fact, some authors would say that a (e) Where no defaults allowed. - If the defending party in an action for
motion for extension of time to file an answer is a non-litigated motion. Meaning, it annulment or declaration of nullity of marriage or for legal separation fails
need not be heard to answer, the court shall order the prosecuting attorney to investigate
Exception: If the case is covered by the Rules on Summary Procedure. whether or not a collusion between the parties exists, and if there is no
- a motion for extension to file an answer is a prohibited pleading. In regular collusion, to intervene for the State in order to see to it that the evidence
rules, the defendant has 15 days to file his answer which can be extended while in submitted is not fabricated.
_____________________________________________________________________________________________________________________________
the Rules on Summary Procedure, non-extendable 10 days only.
Q: No answer was filed within 15 days from receipt of the summons. No
TN: There is no limit for an extension but whether it will be granted by the court, it is extension was filed. What should be done? The court immediately and
discretionary on the part of the court. If the court feels that there is already an intent motu proprio declared the defendant in default, is the court correct?
to delay the case by a series of extensions so to speak, the court would see and it will
deny it. At the end of the day, whether the court will grant so many extensions to file A: No, the court cannot motu proprio declare a defendant in default. There must
an answer, it is discretionary on the part of the court. What is not allowed for be a motion which should be filed by the plaintiff to that effect.
extension are those cases under the Rules on Summary Procedure and answer there TN: In the cases covered by the Rules on Summary Procedure, you cannot file a
must be filed within 10 days. motion to declare defendant in default because if no answer is filed within 10 days,
a motion to render judgement may be filed. However, if this will be based on the
Motion to Declare Defendant in Default regular rules, no answer, no responsive pleading within 15 days from service of
summons or no extension or there was an extension but in spite of the extension,
Relevant Provision: no answer was filed by the defendants, under the rules, the plaintiff is under

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


Section 3. Default; declaration of. - If the defending party fails to answer within the obligation to file a motion to declare that defendant in default for failure to file his
time allowed therefor, the court shall, upon motion of the claiming party with notice answer within the period as provided by the rules. The court cannot do that motu
to the defending party, and proof of such failure, declare the defending party in proprio.
default. Thereupon, the court shall proceed to render judgment granting the claimant Q: The defendant was declared in default by the Court, what would be
such relief as his pleading may warrant, unless the court in its discretion requires the his remedy?
claimant to submit evidence. Such reception of evidence may be delegated to the
clerk of court. A: He can file a motion to lift or set aside the order of default before the court
renders a decision.
(a) Effect of order of default. - A party in default shall be entitled to notice of
subsequent proceedings but not to take part in the trial. Q: What is one mandatory requirement which should be attached to the
motion to lift or set aside the defendant in default?
(b) Relief from order of default. - A party declared in default may at any time
after notice thereof and before judgment file a motion under oath to set aside A: There must be an affidavit of merit. This is one of the motions where is aside
the order of default upon proper showing that his failure to answer was due to from being verified, it must contain an affidavit of merit to inform the court that
fraud, accident, mistake or excusable negligence and that he has a meritorious the defense is meritorious.
defense. In such case, the order of default may be set aside on such terms and TN: In setting aside the order of default, the defendant must allege that his failure
conditions as the judge may impose in the interest of justice. to answer was due to excusable negligence, fraud, mistake - this is where you
must specifically allege if there is fraud or mistake and that he has a meritorious

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 22
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

defense which should be alleged in the affidavit of merit as a mandatory requirement.


RULE 10
TN: Unfortunately, the court denied the motion to lift or set aside the order of
AMENDED AND SUPPLEMENTAL PLEADINGS
default. Actually, he was able to establish that his failure to file the answer was due
to his lawyer. He paid his lawyer 100% attorney’s fees but the lawyer failed to file the
Relevant Provisions:
answer. For me, it is a valid and meritorious defense but in spite of that, the judge
denied the motion. Why do you think the judge is incorrect? Section 1. Amendments in general. - Pleadings may be amended by adding or
striking out an allegation or the name of any party, or by correcting a mistake in
Because these motions must be liberally construed in favor of the defendant
the name of a party or a mistaken or inadequate allegation or description in any
because between technical and substantial justice, substantial justice will prevail.
other respect, so that the actual merits of the controversy may speedily be
cases should not be heard on technicalities. Cases should be heard based on the
determined, without regard to technicalities, and in the most expeditious and
merits. More often than not, the court grants a motion to set aside the order of
inexpensive manner.
default based on that particular principle.
Section 2.Amendments as a matter of right. - A party may amend his pleading
Q: If a defendant is declared in default, what is the effect of that under our
once as a matter of right at any time before a responsive pleading is served or, in
rules?
the case of a reply, at any time within ten (l0) days after it is served.
A: The defendant can no longer participate in the proceeding however he can still
Section 3.Amendments by leave of court. - Except as provided in the next
receive notices.
preceding section, substantial amendments may be made only upon leave of court.
TN: A defendant who is declared in default, he is not entitled to participate in the But such leave may be refused if it appears to the court that the motion was made
proceedings but he is always entitled to notice of subsequent proceedings of that with intent to delay. Orders of the court upon the matters provided in this section
case. That’s why he should file a motion to set aside the order of default because shall be made upon motion filed in court, and after notice to the adverse party,
how can he participate in the proceedings. and an opportunity to be heard.
Q: What are cases where the law does not allow declaration of defaults? Section 6.Supplemental pleadings. - Upon motion of a party the court may, upon
1. Legal separation reasonable notice and upon such terms as are just, permit him to serve a
2. Declaration of nullity of marriage supplemental pleading setting forth transactions, occurrences or events which have
happened since the date of the pleading sought to be supplemented. The adverse
3. Annulment of marriage.
party may plead thereto within ten (10) days from notice of the order admitting
TN: In these particular cases declaration in default is not allowed to protect the the supplemental pleading.

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


sanctity of marriage. That is the rationale. In these particular cases when a case for
Section 7.Filing of amended pleadings. - When any pleading is amended, a new
legal separation, declaration of nullity of marriage, or annulment of marriage,
copy of the entire pleading, incorporating the amendments, which shall be
summons was served on the respondent. Respondent did not file any responsive
indicated by appropriate marks, shall be filed.
pleading within 15 days nor did he file a motion for extension of time to file answer.
Section 8.Effect of amended pleadings. - An amended pleading supersedes the
Q: What should be done by the court here in accordance with what you
pleading that it amends. However, admissions in superseded pleadings may be
were taught in your persons and family relations?
received in evidence against the pleader; and claims or defenses alleged therein
A: The court shall order the prosecutor to investigate whether or not there is not incorporated in the amended pleading shall be deemed waived.
collusion.
Q: Can a pleading be amended?
TN: Again, a motion to declare the defendant in default is not allowed in cases of
legal separation, declaration of nullity of marriage and annulment. Likewise, such A: Yes, as a matter of right or as a matter of discretion
motion is prohibited in cases covered by the Rules on Summary Procedure. Distinctions between amended pleadings and supplemental pleadings
a) Amended pleadings refer to facts existing at the time of the
commencement of the action; supplemental pleadings refer to facts
arising after the filing of the original pleading.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 23
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

b) An amended pleading results in the withdrawal of the original pleading; a - Non-filing of the reply by the plaintiff means the defendant can still
supplemental pleading is merely in addition to, but does not result in the amend his answer.
withdrawal of, the original pleading. If the reply is not mandatory
c) An amended pleading can be made as of right, as when no responsive - As long as the case is not yet scheduled for trial, the defendant can
pleading has yet been filed; supplemental pleadings are always with leave of still amend his answer but always with Leave of Court.
court.
Amendment as a matter of Right Situation: The defendant within the 15 day period for filing answer instead filed a
Judge: When can it be amended as a matter of right? motion to dismiss. The court denied the motion to dismiss. Can the plaintiff still
A: It can be amended once as a matter of right without leave of court but before a amend once as a matter of right?
responsive pleading is served. You can just file it immediately with the court. But that A: Yes, because a motion to dismiss is not a pleading.
should be done before? TN: After a responsive pleading is served, amendment now only as far as
TN: “Served” not “filed”. When you say “served”, it has reference to the plaintiff. substance is concerned, becomes a matter of discretion. And therefore, would
Meaning, even if an answer was apparently filed before the court already but the always require leave of court.
plaintiff has not yet been served of the copy of the answer, the plaintiff can still
amend it once as a matter of right. Relevant Provision:
Amendment as a matter of Discretion Section 4. Formal amendments. - A defect in the designation of the parties and
TN: Even before a responsive pleading has been filed but you choose to make a other clearly clerical or typographical errors may be summarily corrected by the
second or third amended pleading, leave of court is required. If this is the first court at any stage of the action, at its initiative or on motion, provided no prejudice
amended complaint and you were not yet served with the answer, you can do that as is caused thereby to the adverse party.
a matter of right but second, third and so on, even if no service of the answer was Q: What about formal amendments? It may be done at any stage of the
filed yet, you can only do so with leave of court because the law says, once as a proceeding.
matter of right before a responsive pleading is served.
A: Yes. It is done summarily and even the court can motu proprio order the formal
Q: How do you do an amendment? amendment.
A: You need to make appropriate marks. In typewriter, underlined but in the Grounds for denial of plaintiff’s substantial amendment (presupposes that there is
computer you bold it to signify that these are the amendments. The court has no already an answer):

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


time to read the original complaint and your amended complaint. The law says, by
1. If the original complaint showed that the court has no jurisdiction over the
making appropriate marks to signify that those are the amendments which you are
subject matter of the case and the purpose of the amendment is to confer
seeking in so far as the complaint is concerned.
the court jurisdiction
Q: What is the effect of the amended complaint? 2. If the purpose of the amendment is just to delay
A: The amended complaint supersedes the original complaint. It’s as if the original 3. If the amendment will change or alter the cause of action of the plaintiff
complaint is no longer existing. But it remains to be attached to the records of the
case. Situation: There was an original complaint and summons was already served to
TN: The amended complaint supersedes original complaint but the admissions the defendants. Before the defendant serves the responsive pleading to the
already incorporated in the original complaint are already admitted in the court. This plaintiff, the latter amended the complaint once as a matter of right. Is there a
will still be given weight by the court even if the original complaint is superseded by need for the issuance of new summons based on the amended complaint?
that amended complaint. A: It depends. If the amendment altered the cause of action in the amended
Q: Can an answer be amended? When? complaint, the court shall issue new summons based on the amended complaint. If
A: It depends. it did not, then there is no need to issue again new summons.
If the reply of the plaintiff is mandatory (as in cases involving usury and actionable Q: Assuming the substantial amendment of the plaintiff was granted by
documents) the court after the defendant has file his answer because it did not fall

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 24
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

into the 3 enumerated exceptions, is there a need for the defendant to file The amended complaint supersedes the original complaint, meaning the original
a new answer? complaint is as if withdrawn but still, it will form part of the records of the case.
A: No need. Because the original answer is already sufficient. Even if the defendant However, any admission which was already included in the original complaint can
did not file an answer to the amended complaint, you cannot declare him in default still be used in so far as the case is concerned.
because he has already filed his answer. But if he wants to, he may do so within 10 The law does not make any prohibition as to how many amendments or
days upon receipt of the order admitting the amended complaint. supplemental complaints can a plaintiff make. However, as a general rule it
Relevant Provision: depends upon the sound discretion of the court.
Section 5. Amendment to conform to or authorize presentation of evidence. —
When issues not raised by the pleadings are tried with the express or implied consent RULE 11
of the parties they shall be treated in all respects as if they had been raised in the WHEN TO FILE RESPONSIVE PLEADINGS
pleadings. Such amendment of the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues may be made upon motion of any Relevant Provisions:
party at any time, even after judgment; but failure to amend does not effect the Section 1. Answer to the complaint. - The defendant shall file his answer to the
result of the trial of these issues. If evidence is objected to at the trial on the ground complaint within fifteen (15) days after service of summons, unless a different
that it is not within the issues made by the pleadings, the court may allow the period is fixed by the court.
pleadings to be amended and shall do so with liberality if the presentation of the
merits of the action and the ends of substantial justice will be subserved thereby. The Section 2. Answer of a defendant foreign private juridical entity. - Where the
court may grant a continuance to enable the amendment to be made. defendant is a foreign private juridical entity and service of summons is made on
the government official designated by law to receive the same, the answer shall be
TN: If the plaintiff is presenting issues which were not agreed in the pre-trial filed within thirty (30) days after receipt of summons by such entity.
conference, automatically object because otherwise the court will ultimately allow
Section 3. Answer to amended complaint. - Where the plaintiff files an amended
that and definitely the court will allow the plaintiff’s filing of motion to amend the
complaint as a matter of right, the defendant shall answer the same within fifteen
complaint to conform to the issues.
(15) days after being served with a copy thereof.
RECAP:
Where its filing is not a matter of right, the defendant shall answer the
If the facts existed at the time of the filing the complaint and it was inadvertently not amended complaint within ten (10) days from notice of the order admitting the
included in the complaint, you do that by amendment. same. An answer earlier filed may serve as the answer to the amended complaint if

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


If facts existed after the filing of the pleading and you feel that it must form part of no new answer is filed.
plaintiff’s cause of action, you do that by filing supplemental pleading (complaint). This Rule shall apply to the answer to an amended counterclaim,
amended cross-claim, amended third (fourth, etc.) party complaint, and amended
Amendment can be: complaint-in-intervention.
A. A matter of right only once before a responsive pleading is served Section 4. Answer to counterclaim or cross-claim. - A counterclaim or cross-claim
- does not require leave of court must be answered within ten (l0) days from service.
- even if the defendant has already filed his answer before the court but Section 5. Answer to third (fourth, etc.)- party complaint. - The time to answer a
the same has not been served to the plaintiff as yet, then amendment is third (fourth, etc.)- party complaint shall be governed by the same rule as the
still a matter of right answer to the complaint.
B. A matter of discretion –requires leave of court from the court
Section 6. Reply. - A reply may be filed within ten (l0) days from service of the
Supplemental pleading ALWAYS requires leave of court pleading responded to.
Section 7. Answer to supplemental complaint. - A supplemental complaint may be
When you file a motion for leave to file a supplemental complaint, you should already answered within ten (10) days from notice of the order admitting the same, unless
attach the supplemental complaint itself. a different period is fixed by the court. The answer to the complaint shall serve as
When you make an amended complaint, see to it that the amendments must be the answer to the supplemental complaint if no new or supplemental answer is
emphasized by appropriate marks (ex. You underline, or make the letters bold) filed.

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Section 8. Existing counterclaim or cross-claim. - A compulsory counterclaim or a


cross-claim that a defending party has at the time he files his answer shall be RULE 12
contained therein. BILL OF PARTICULARS
Section 9. Counterclaim or cross-claim arising after answer. - A counterclaim or a
Relevant Provisions:
cross-claim which either matured or was acquired by a party after serving his
pleading may, with the permission of the court, be presented as a counterclaim or a Section 1. When applied for; purpose. - Before responding to a pleading, a party
cross-claim by supplemental pleading before judgment. may move for a definite statement or for a bill of particulars of any matter which is
not averred with sufficient definiteness or particularity to enable him properly to
Section 10. Omitted counterclaim or cross-claim. - When a pleader fails to set up a
prepare his responsive pleading. If the pleading is a reply, the motion must be filed
counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect,
within ten (10) days from service thereof. Such motion shall point out the defects
or when justice requires, he may, by leave of court, set up the counterclaim or cross-
complained of, the paragraphs wherein they are contained, and the details desired.
claim by amendment before judgment.
Section 2. Action by the court. - Upon the filing of the motion, the clerk of court
Section 11. Extension of time to plead. - Upon motion and on such terms as may be
must immediately bring it to the attention of the court which may either deny or
just, the court may extend the time to plead provided in these Rules.
grant it outright, or allow the parties the opportunity to be heard.
The court may also, upon like terms, allow an answer or other pleading to
Section 3. Compliance with order. - If the motion is granted, either in whole or in
be filed after the time fixed by these Rules.
part, the compliance therewith must be effected within ten (l0) days from notice of
Q: Do you have to reply a compulsory counterclaim? the order, unless a different period is fixed by the court. The bill of particulars or a
A: No need, but if it is permissive it must be answered. Cross-claims shall likewise be more definite statement ordered by the court may be filed either in a separate or
answered by the other party within 10 days from the service of the pleading being in an amended pleading, serving a copy thereof on the adverse party.
responded to. Section 4. Effect of non-compliance. - If the order is not obeyed, or in case of
TN: Counterclaim may be answered within 10 days from the receipt of the answer of insufficient compliance therewith, the court may order the striking out of the
the defendant. The answer contains the counterclaim of the defendant. pleading or the portions thereof to which the order was directed or make such
other order as it deems just.
Q: Can the 15 day period to answer be extended?
Section 5. Stay of period to file responsive pleading. - After service of the bill of
A: Yes, there is even no limit as to how many extensions there are because anyway it
particulars or of a more definite pleading, or after notice of denial of his motion,
is subjected to the sound discretion of the court. The filing of the motion to extend
the moving party may file his responsive pleading within the period to which he

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


the time to file an answer is an ex parte motion. Meaning, it will be granted by the
was entitled at the time of filing his motion, which shall not be less than five (5)
court even without hearing because it is not a litigated motion. But you should file the
days in any event.
motion before the lapse of the original 15 day period.
Section 6. Bill a part of pleading. - A bill of particulars becomes part of the
Q: Is there an instance when the period to answer is 30 days?
pleading for which it is intended.
A: Yes, in case of foreign corporations sued in the Philippines. Under the rules, the
summons shall be served on the designated government official or if there is TN: If the allegations in the complaint are not definite but too general, you can file
designated resident agent of that corporation. a Motion for a bill of particulars. The purpose of this is so that the defendant can
file an intelligent answer based on the allegations in the complaint If the motion for
Q: Is there an instance when the period to answer is only 10 days, not 15
bill of particular is granted, the court will make an order to the plaintiff to make
days?
particular the allegations in the complaint being covered by the motion for bill of
A: Yes, in cases covered by the Rules on Summary Procedure. However, this period is particulars. The motion for bill of particulars does not mean that it should be the
not extendible. If no answer within 10 days, you cannot file a motion to declare the entire complaint. Even if there are only 2 allegations in the complaint which are not
defendant in default because it is a prohibited motion. What you should do is to file a definite, you are allowed to file a motion for bill of particular insofar as those 2
motion to render judgment. paragraphs in the complaint are concerned.
Q: Who files the answer to the cross-claim? In complying with the order of the court to make particular allegations,
A: The co-party who receives the cross-party complaint. the plaintiff can file an amended complaint or make separate pleading. If the
plaintiff does not comply with the court order to make particulars, the court can

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

strike out the paragraphs subject of the motion for bill of particulars. If it contains the as the date of their filing, payment, or deposit in court. The envelope shall be
entire complaint, the court can dismiss it. attached to the record of the case.
Section 11. Priorities in modes of service and filing. - Whenever practicable, the
Q: What if the court denies the motion for bill of particulars because the service and filing of pleadings and other papers shall be done PERSONALLY. Except
complaint is very definite, how many days to file the defendant’s answer? with respect to papers emanating from the court, a resort to other modes must be
accompanied by a WRITTEN EXPLANATION why the service or filing was not done
A: The remaining period but not less than 5 days. If you file a motion for bill of
personally. A violation of this rule may be cause to consider the paper as not filed.
particulars on the 5th day of the 15 day period upon which to file an answer and it
was denied, you still have 10 days to file an answer. However, if you file the motion Section 12. Proof of filing. - The filing of a pleading or paper shall be proved by
on the 13th day and was denied, at most you are given 5 days to file an answer. its existence in the record of the case. If it is not in the record, but is claimed to
have been filed personally, the filing shall be proved by the written or stamped
TN: This is the only exception because all others, for example when the court denies
acknowledgment of its filing by the clerk of court on a copy of the same; if filed by
a motion to dismiss, you are given the entire fresh period of 15 days. In the motion
registered mail, by the registry receipt and by the affidavit of the person who did
for bill of particulars, you are only given the remaining period but not less than 5
the mailing, containing a full statement of the date and place of depositing the mail
days.
in the post office in a sealed envelope addressed to the court, with postage fully
prepaid, and with instructions to the postmaster to return the mail to the sender
RULE 13
after ten (10) days if not delivered.
FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
How is the filing of pleadings and other documents and papers to the
court done?
Relevant Provision:
Modes of FILING:
Section 2. Filing and service defined. - Filing is the act of presenting the pleading or
other paper to the clerk of court. 1. Personal service – preferred mode
2. Filing by
Service is the act of providing a party with a copy of the pleading or paper
a. registered mail – thru the Phil. PostalCorp or the Post Office
concerned. If any party has appeared by counsel, service upon him shall be made
(deemed filed upon POSTING); or
upon his counsel or one of them, unless service upon the party himself is ordered by
b. by private courier – thru LBC, JRS, etc. because there is no
the court. Where one counsel appears for several parties, he shall only be entitled to
prohibition under the Rules (deemed filed upon RECEIPT of the
one copy of any paper served upon him by the opposite slide.

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


pleading by the court)
Q: If a party is represented by a lawyer, is service of pleadings to him, not Note: if this is availed of, there must be A WRITTEN EXPLANATION why
to his counsel, valid? the service or filing was not done personally, otherwise the pleading did
A: No, it is not a valid service of pleadings unless the court orders otherwise. But, if not comply with Section 11, Rule 13. This is because the priority is
there are several counsels, service to one of them is already sufficient. personal service. It must be stated in the pleading that:
“Pursuant to Section 11, Rule 13 of the 1997 Rules of Civil Procedure, this
Modes of Filing and Service of Pleadings and other Papers motion is filed before the court and served to the other party by
registered mail due to distance or lack of messenger” (or any other
Relevant Provisions: reason why you resorted to filing by registered mail.)
Section 3. Manner of filing. - The FILING of pleadings, appearances, motions,
notices, orders, judgments and all other papers shall be made by presenting the
Relevant Provisions:
original copies thereof, plainly indicated as such, PERSONALLY to the clerk of court
OR by sending them by REGISTERED MAIL. In the first case, the clerk of court shall Section 5. Modes of service. - Service of pleadings motions, notices, orders,
endorse on the pleading the date and hour of filing. In the second case, the date of judgments and other papers shall be made either personally or by mail.
mailing of motions, pleadings, or any other papers or payments or deposits, as shown Section 6. Personal service. - Service of the papers may be made by delivering
by the post office stamp on the envelope or the registry receipt, shall be considered personally a copy to the party or his counsel, or by leaving it in his office with his
clerk or with a person having charge thereof. If no person is found in his office, or

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 27
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

his office is not known, or he has no office, then by leaving the copy, between the complete upon actual receipt by the addressee, or after five (5) days from the date
hours of eight in the morning and six in the evening, at the party's or counsel's he received the first notice of the postmaster, whichever date is earlier.
residence, if known, with a person of sufficient age and discretion then residing
therein.
Modes of service of DECISION OF THE COURT OR JUDGMENT:
Section 7. Service by mail - Service by registered mail shall be made by depositing
1. Personal service
the copy in the post office in a sealed envelope, plainly addressed to the party or his
2. By registered mail
counsel at his office, if known, otherwise at his residence, if known, with postage
3. By means of publication
fully prepaid, and with instructions to the postmaster to return the mail to the sender
a. This is ONLY when summons to the defendant had also been
after ten (10) days if undelivered. If no registry service is available in the locality of
served by publication
either the senders or the addressee, service may be done by ordinary mail.
b. In the service of SUMMONS by publication, the court shall
Section 8. Substituted service. - If service of pleadings, motions, notices, likewise send a copy of the summons by registered mail to the
resolutions, orders and other papers cannot be made under the two preceding last known address of the defendant.
sections, the office and place of residence of the party or his counsel being unknown,
service may be made by delivering the copy to the clerk of court, with proof of failure
of both personal service and service by mail. The service is complete at the time of Notice of Lis Pendens
such delivery.
Relevant Provision:
Section 13. Proof of service. Proof of personal service shall consist of a written
admission of the party served, or the official return of the server, or the affidavit of Section 14. Notice of lis pendens. - In an action affecting the title or the right of
the party serving, containing a full statement of the date, place and manner of possession of real property, the plaintiff and the defendant, when affirmative relief
service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of is claimed in his answer, may record in the office of the registry of deeds of the
the person mailing of facts showing compliance with section 7 of this Rule. If service province in which the property is situated notice of the pendency of the action.
is made by registered mail, proof shall be made by such affidavit and the registry Said notice shall contain the names of the parties and the object of the action or
receipt issued by the mailing office. The registry return card shall be filed immediately defense, and a description of the property in that province affected thereby. Only
upon its receipt by the sender, or in lieu thereof the unclaimed letter together with from the time of filing such notice for record shall a purchaser, or encumbrancer of
the certified or sworn copy of the notice given by the postmaster to the addressee. the property affected thereby, be deemed to have constructive notice of the
pendency of the action, and only of its pendency against the parties designated by
Modes of SERVICE: their real names.

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


1. Personal Service; or The notice of lispendens hereinabove mentioned may be cancelled only
2. By registered mail or thru private courier with explanation; or upon order of the court, after proper showing that the notice is for the purpose of
3. By substituted service molesting the adverse party, or that it is not necessary to protect the rights of the
a. Filing with the Clerk of Court the exact pleading intended for the rights of the party who caused it to be recorded.
other party.
b. This is also with explanation why this mode was resorted to. Notice of lis pendens
- You simply inform that there is pending case involving this particular
Relevant Provisions: property before a court and you have it registered and annotated at the
back of the title of the property at the Office of the Registry of Deeds in
Section 9. Service of judgments, final orders or resolutions - Judgments, final orders the place where the property is located.
or resolutions shall be served either personally or by registered mail. When a party Situation: Juan filed a civil case for collection of sum of money against Pedro.
summoned by publication has failed to appear in the action, judgments, final orders Juan after filing annotated the same in an office to inform that there is a pending
or resolutions against him shall be served upon him also by publication at the case for collection of sum of money. Is notice of lis pendens applicable?
expense of the prevailing party.
A: No, because this is not a case involving title or possession of a real property.
Section 10. Completeness of service. - Personal service is complete upon actual
delivery. Service by ordinary mail is complete upon the expiration of ten (10) days Q: What is the advantage of a notice of lis pendens?
after mailing, unless the court otherwise provides. Service by registered mail is

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 28
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

A: It is constructive notice to the whole world that there is a pending case involving Section 7. Substituted service. - If, for justifiable causes, the defendant cannot be
this particular property. If a person buys it, he is actually risking himself and if the served within a reasonable time as provided in the preceding section, service may
plaintiff won in the recovery of the property, the latter is preferred. Under the law on be effected (a) by leaving copies of the summons at the defendant's residence with
property, such buyer cannot be considered as a buyer in good faith. some person of suitable age and discretion then residing therein, or (b) by leaving
Q: Can a notice of lis pendens be removed? the copies at defendant's office or regular place of business with some competent
person in charge thereof.
A: Yes. There must be a COURT ORDER to that effect. You cannot just write to the
Registry of Deeds that you are no longer interested to proceed with the lis pendens, Section 14. Service upon defendant whose identity or whereabouts are
even if it is notarized. unknown. - In any action where the defendant is designated as an unknown
owner, or the like, or whenever his whereabouts are unknown and cannot be
2 grounds which will cause the court to issue removal of the notice of lis
ascertained by diligent inquiry, service may, by leave of court, be effected upon
pendens:
him by publication in a newspaper of general circulation and in such paces and for
1. If the annotation is only intended to molest the adverse party; or such time as the court may order.
2. The plaintiff’s right can be protected by another means other than the lis
pendens Can service of summons be made thru e-mail?
A: No. under the rules we only have 3 modes
RULE 14
1. Personal service
SUMMONS
2. Substituted service
3. Service of summons by publication
Relevant Provisions: - Instances where summons by publication is allowed?
Section 1. Clerk to issue summons. - Upon the filing of the complaint and the o The defendant is not a resident of the Philippines
payment of the requisite legal fees, the clerk of court shall forthwith issue the o The subject matter involves the personal status of the
corresponding summons to the defendants. plaintiff
o It involves a real action like title and possession of property
Section 2. Contents. - The summons shall be directed to the defendant, signed by
the clerk of court under seal, and contain:
Situation: Jose filed a case for collection of sum of money against Butch. It was
(a) the name of the court and the names of the parties to the action;
found out when the summons was served that Butch left for USA with no definite
(b) a direction that the defendant answer within the time fixed by these Rules;

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


date of return. The sheriff returned the summons unserved. What the counsel of
(c) a notice that unless the defendant so answers, plaintiff will take judgment by
the plaintiff did was to file a motion to allow service of summons by publication.
default and may be granted the relief applied for.
The court granted the motion. Is the court correct?
A copy of the complaint and order for appointment of guardian ad litem, if
A: No, a collection of sum of money is a purely personal action.
any, shall be attached to the original and each copy of the summons.
Relevant Provisions:
Why is there a need for the court to issue summons to the defendant?
Section 3. By whom served. - The summons may be served by the sheriff, his
A: to acquire jurisdiction over the person of the defendant. deputy, or other proper court officer, or for justifiable reasons by any suitable
Situation: The defendant filed a motion to dismiss on the ground that the court did person authorized by the court issuing the summons.
not acquire jurisdiction over his person due to improper service of summons. The Section 4. Return. - When the service has been completed, the server shall,
court granted the motion and dismissed the complaint. Is the court correct? within five (5) days therefrom, serve a copy of the return, personally or by
A: No, the courts should issue new summons. The summons must of course include registered mail, to the plaintiff's counsel, and shall return the summons to the clerk
the complaint. who issued it, accompanied by proof of service.
Relevant Provisions: Who can serve summons?
Section 6. Service in person on defendant. - Whenever practicable, the summons 1. Sheriff
shall be served by handing a copy thereof to the defendant in person, or, if he 2. Deputy sheriff
refuses to receive and sign for it, by tendering it to him. 3. Other proper court officer

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

4. For justifiable reasons, by any suitable person authorized by court issuing Section 13. Service upon public corporations. - When the defendant is the
the summons Republic of the Philippines, service may be effected on the Solicitor General; in
Q: A policeman can serve subpoena definitely. However, the summons was case of a province, city or municipality, or like public corporations, service may be
served by a police man. Proper? effected on its executive head, or on such other officer or officers as the law or the
A: Yes if there is a justifiable reason and authority from the court. But usually, the court may direct.
one who can serve is the sheriff. Situation: The case is filed by Juan against ABC corporation. The latter has
Q: The sheriff served the summons personally to defendant Butch. What several branches in the Leyte and Samar, one of which is in Barugo, Leyte. The
will the sheriff do? principal office is in Justice Romualdez, Tacloban City. In Barugo, the corporation
A: He should make a return of service to the court so that the court will know if has a branch manager. The Sheriff served the summons to ABC Corporation
summons has been properly served or not. He is under obligation also to serve or through its branch manager in Barugo. Did the court acquire jurisdiction over the
furnish a copy of the return to the plaintiff within 5 days so that the plaintiff would person of the defendant?
know what to do because if there no answer is filed within 15 days the plaintiff’s A: This is an improper service. The court did not acquire jurisdiction over the
counsel can file a motion to declare the defendant in default. The court cannot muto person of the defendant. The rule says that if defendant is domestic private
proprio declare the defendant in default. juridical entity, meaning private corporations, it must be served to the following
persons:

Relevant Provisions: 1. President


2. General Manager –does not refer to branch manager
Section 8. Service upon entity without juridical personality. - When persons 3. Managing partner
associated in an entity without juridical personality are sued under the name by 4. Corporate secretary – member of the Board of Directors or member of
which they are generally or commonly known, service may be effected upon all the Trustees, not the personal secretary of the President
defendants by serving upon any one of them, or upon the person in charge of the 5. Treasurer
office or place of business maintained in such name. But such service shall not bind 6. In-house counsel – not the retainers of the corporation
individually any person whose connection with the entity has, upon due notice, been
severed before the action was brought.
TN: If government entity is sued, service must be made to the Solicitor General. If
Section 9. Service upon prisoners. - When the defendant is a prisoner confined in a in case of a municipality, service may be made to the executive head.
jail or institution, service shall be effected upon him by the officer having the

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management of such jail or institution who is deemed deputized as a special sheriff Q: What about if you formed an association but you have no juridical
for said purpose. personality, example no certificate of registration from the Securities
and Exchange Commission (SEC) because you failed to comply with any
Section 10. Service upon minors and incompetents. - When the defendant is a of the requirements and you are sued. To whom summons will be
minor, insane or otherwise an incompetent, service shall be made upon him served?
personally and on his legal guardian if he has one, or if none, upon his guardian ad
litem whose appointment shall be applied for by the plaintiff. In the case of a minor, A: It can be served to anyone of them.
service may also be made on his father or mother. Q: A foreign corporation licensed to do business within the Philippines
Section 11. Service upon domestic private juridical entity. - When the defendant is a has 30 days to file its answer. To whom shall the summons be served?
corporation, partnership or association organized under the laws of the Philippines A: To the designated agent of that foreign corporation in the Philippines, or to any
with a juridical personality, service may be made on the president, managing partner, government official upon which that corporation is in line, example, if the
general manager, corporate secretary, treasurer, or in-house counsel. corporation is engaged in banking, it must be served with Central Bank in the
Section 12. Service upon foreign private juridical entity. - When the defendant is a absence of resident agent. If engaged in Insurance Business and there is no
foreign private juridical entity which has transacted business in the Philippines, resident agent, it must be with the Insurance Commission.
service may be made on its resident agent designated in accordance with law for that Q: How about if minors and incompetents were sued, to whom will the
purpose, or, if there be no such agent, on the government official designated by law summons be served?
to that effect, or on any of its officers or agents within the Philippines. A: to the minor himself or to the legal guardian of the minor.

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Q: How about prisoners? who is temporarily out of it, service may, by leave of court, be also effected out of
A: BJMP Chief, Chief of the Sub-Provincial Jail or the institution authorized. the Philippines, as under the preceding section.
Section 19. Proof of service by publication. - If the service has been made by
publication, service may be proved by the affidavit of the printer, his foreman or
Q: The case is Sophia versus Fe. The sheriff served the summons in the
principal clerk, or of the editor, business or advertising manager, to which affidavit
house of Fe, but at that time Fe was at the party. The sheriff said in the
a copy of the publication shall be attached, and by an affidavit showing the deposit
return “I served it to the secretary because Fe was not around”. Is it a valid
of a copy of the summons and order for publication in the post office, postage
substituted service?
prepaid, directed to the defendant by registered mail to his last known address.
A: In the case of Yuk Ling Ong, the SC laid down certain requisites before substituted
Section 20. Voluntary appearance. - The defendant's voluntary appearance in the
service may be availed of. So that a substituted service can be valid, the sheriff must
action shall be equivalent to service of summons. The inclusion in a motion to
make 3 attempts in 3 separate occasions. The sheriff must also explain in his return
dismiss of other grounds aside from lack of jurisdiction over the person of the
why substituted service of summons was resorted to.
defendant shall not be deemed a voluntary appearance.
Q: If defendant refuses to receive, what will the sheriff do?
Q: What about if the summons is served by publication, how many days?
A: You tender it to him. The sheriff will justleave a copy in his presence, then he will
just make a remark or statement about that fact that he left a copy in his presence. A: 60 days from the last publication which must be stated in the order of the court
This is done when the defendant refuses to receive. That is what we call tender. granting the service of summons by publication.

Review: Answer is 15 days, summary procedure is 10 days, foreign corporations is 30 Extraterritorial service – it is served outside of the Philippines.
days TN: Publication is very expensive and it will entail a little time especially now that
publication companies will charge so much. You will publish not only the whole
petition or complaint but also the order of the court granting the motion. Although
Relevant Provisions: for annulment of marriage, legal separation and declaration of nullity of marriage,
Section 14. Service upon defendant whose identity or whereabouts are unknown. - the rule says that it must be published only once week for 2 consecutive weeks in
In any action where the defendant is designated as an unknown owner, or the like, a newspaper of general circulation.
or whenever his whereabouts are unknown and cannot be ascertained by diligent Sometimes the court resorts to personal service but extraterritorial, DFA
inquiry, service may, by leave of court, be effected upon him by publication in a to DFA. You just go to DFA in Manila and it is the DFA which will serve the
newspaper of general circulation and in such paces and for such time as the court summons to a corresponding entity where the defendant resides.

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may order.
Service of summons by publication is allowed, not because the court will
Section 15. Extraterritorial service. - When the defendant does not reside and is not acquire jurisdiction over the defendant but because the law wants to give the
found in the Philippines, and the action affects the personal status of the plaintiff or defendant due process.
relates to, or the subject of which is, property within the Philippines, in which the
defendant has or claims a lien or interest, actual or contingent, or in which the relief 3 instances when the law allows service of summons by publication:
demanded consists, wholly or in part, in excluding the defendant from any interest 1. When the defendant is not a resident of the Philippines but the suit
therein, or the property of the defendant has been attached within the Philippines, involves personal status of the plaintiff or it is in rem or quasi-in rem
service may, by leave of court, be effected out of the Philippines by personal service 2. When he is temporarily out of the Philippines
as under section 6; or by publication in a newspaper of general circulation in such 3. Identity or whereabouts of the defendant is unknown
places and for such time as the court may order, in which case a copy of the
summons and order of the court shall be sent by registered mail to the last known Extraterritorial service can be done in 2 ways: (Section 15, Rule 14)
address of the defendant, or in any other manner the court may deem sufficient. Any
1. By going to the place outside of the Philippines
order granting such leave shall specify a reasonable time, which shall not be less than
2. Summons by publication
sixty (60) days after notice, within which the defendant must answer.
Section 16. Residents temporarily out of the Philippines. - When any action is
commenced against a defendant who ordinarily resides within the Philippines, but

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Q: Can there be an instance where the court acquires jurisdiction over the RULE 15
person of the defendant even if the court did not serve summons? MOTIONS
A: Yes, by voluntary appearance. For example when the defendant submitted
pleading to the court a motion for extension of time to file an answer or defendant Relevant Provisions:
signed a compromise agreement with the other defendants. These are voluntary Section 1. Motion defined. - A motion is an application for relief other than by a
appearance. pleading
Q: Can there be an instance where the defendant filed a motion to the Section 2. Motions must be in writing. - All motions shall be in writing except
court but the court did not acquire jurisdiction over the person of the those made in open court or in the course of a hearing or trial.
defendant?
Section 3. Contents. - A motion shall state the relief sought to be obtained and
A: Yes, if it is only a motion to dismiss and he just questioned the jurisdiction of the the grounds upon which it is based, and if required by these Rules or necessary to
court over his person.But if he alleged other grounds other than jurisdiction, he prove facts alleged therein, shall be accompanied by supporting affidavits and
submits himself to the jurisdiction of the court. other papers.
TN: Summons cannot be served by e-mail, but subpoena can be made via e-mail,text Section 8. Omnibus motion. - Subject to the provisions of section 1 of Rule 9, a
messaging or call. motion attacking a pleading, order, judgment, or proceeding shall include all
Relevant Provision: objections then available, and all objections not so included shall be deemed
Section 5. Issuance of alias summons. - If a summons is returned without being waived.
served on any or all of the defendants, the server shall also serve a copy of the TN: Motion is an application for relief other than by a pleading. This is the reason
return on the plaintiff's counsel, stating the reasons for the failure of service, within a Motion is not considered as a pleading.
five (5) days therefrom. In such a case, or if the summons has been lost, the clerk,
Omnibus motion is a motion attacking a pleading. If you want to attack a
on demand of the plaintiff, may issue an alias summons.
pleading, you must allege all the defenses available in the motion. Otherwise,
Situation: Your property was titled by your neighbor who is very rich by means of these shall be deemed waived.
forging your signature. You filed a case for the declaration of nullity of the deed of - If your motion will contain at least 2 or more defenses, you can term it as
sale of the property. The sheriff served the summons but the defendant was Omnibus Motion.
temporarily outside of the Philippines so the sheriff made a return. You have no
money for service of summons by publication. Later, you learned that defendant has Requirements of a Motion

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


already arrived in the Philippines. What will you do?
A: You go to PAO, because it’s free including stenographic notes but not the sheriff’s Relevant Provisions:
fee, and file a motion for the issuance of an alias summons. This is done if you are a Section 4. Hearing of motion. - Except for motions which the court may act upon
pauper litigant and you have no money for the service of summons by publication without prejudicing the rights of the adverse party, every written motion shall be
and you just wait for the defendant to arrive. set for hearing by the applicant.
Every written motion required to be heard and the notice of the hearing
thereof shall be served in such a manner as to ensure its receipt by the other party
at least three (3) days before the date of hearing, unless the court for good cause
sets the hearing on shorter notice.
Section 5. Notice of hearing. - The notice of hearing shall be addressed to all
parties concerned, and shall specify the time and date of the hearing which must
not be later than ten (10) days after the filing of the motion.
Section 6. Proof of service necessary. - No written motion set for hearing shall be
acted upon by the court without proof of service thereof.

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

TN: In order for a motion not to be considered as a mere scrap of paper, it must A: No, because the date of hearing shall be set not exceeding 10 days
comply with the requirements set forth in Section 4, 5 and 6 of Rule 15 of the 1997 from the date of the filing of the motion. So if you file a motion today, it
Rules of Civil Procedure. must be set for hearing on January 18, 2018 at 8:15am. It is still within
These 3 requirements would usually apply to LITIGATED MOTIONS. Because we have the 10 day period from the filing of the said motion.
non-litigated motions which the court is not really strict with the service, although it
does not mean that the court will dispense of the hearing. Section 7. Motion day. - Except for motions requiring immediate action, all
motions shall be scheduled for hearing on Friday afternoons, or if Friday is a non-
Examples of non-litigated motions:
working day, in the afternoon of the next working day.
1. Motion for the extension of time to file an answer
Section 9. Motion for leave. - A motion for leave to file a pleading or motion shall
2. Motion for execution of judgment
be accompanied by the pleading or motion sought to be admitted.
3. Ex parte motions for postponement
Section 4 Section 10. Form. - The Rules applicable to pleadings shall apply to written
motions so far as concerns caption, designation, signature, and other matters of
- A copy of the motion must be served to the adverse party, thru his counselin
form.
such a way that the motion will be received by the adverse counsel atleast 3
days before that motion is scheduled for hearing.
Section 5 RULE 16
MOTION TO DISMISS
- The motion states:
“To: the Clerk of Court Relevant Provisions:
RTC Branch 15, Burauen, Leyte
Section 1. Grounds. - Within the time for but before filing the answer to the
complaint or pleading asserting a claim, a motion to dismiss may be made on any
Please submit the motion for the court’s consideration immediately upon
of the following grounds:
receipt hereof, without further oral arguments.”
(a) That the court has no jurisdiction over the person of the defending party;
Q: Scrap of paper or not? (b) That the court has no jurisdiction over the subject matter of the claim;
(c) That venue is improperly laid;
A: Yes, because there is no date and time stated and there is no notice to
the adverse party. (d) That the plaintiff has no legal capacity to sue;

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


(e) That there is another action pending between the same parties for the
- There must be a notice of hearing not only to the Clerk of Court but likewise same cause;
to the Adverse Party. (f) That the cause of action is barred by a prior judgment or by the statute of
- “To: limitations;
Atty. Juan dela Cruz
(g) That the pleading asserting the claim states no cause of action;
Counsel for the Defendant
(Address) (h) That the claim or demand set forth in the plaintiff's pleading has been
paid, waived, abandoned, or otherwise extinguished;
Please be informed that the foregoing motion will be submitted for the (i) That the claim on which the action is founded is enforceable under the
consideration of the honorable court on January 10, 2018 at 10:00am.” provisions of the statute of frauds; and
Section 6 (j) That a condition precedent for filing the claim has not been complied
- Proof of service to the adverse party. You must specify the date when the with.
motion is set for hearing in order for the adverse party to prepare for the
hearing of said motion. TN: There is an agreement between the IBP and the Supreme Court to exercise
- Situation: restraint in filing a motion to dismiss.But the law does not prohibit it. Restraint but
You filed your motion today, January 8, 2018. You set the hearing on the not prohibited. What must be done is to file a special and affirmative defense in
21st. Did it comply with the Rules?

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

your answer. So before trial, file a motion to the court to hear your special and 3. There must be a final judgment involving the same cause of action, the
affirmative defenses because if your answer contains it, it is as if you’re able to file a same party, and the same subject matter
timely motion to dismiss. The rationale is to shorten the period.
Q: When can you file a motion to dismiss? C. Litis pendentia
- If a case is still pending and you file another case involving the same
A: Within the period for filing a responsive pleading and that would mean within 15
parties, the same cause of action and the same subject matter
days from the service of summons to the defendant.
Q: Under the rules, there are several grounds and if they are not raised, D. Lack of cause of action
what is the effect? - If the case is not prosecuted in the name of the real party in interest the
They are deemed waived, EXCEPT: case may be dismissed on the ground of lack of cause of action
1. Lack of jurisdiction over subject matter - Example: You feel that the plaintiff did not exhaust administrative
2. Res judicata remedies. You can file motion to dismiss on the ground of lack of cause of
3. Prescription action, according to Regalado.
4. Litis pendentia
E. That the claim or demand set forth in the plaintiff's pleading has
The motion to dismiss should be filed within 15 days, otherwise you could no longer been paid, waived, abandoned, or otherwise extinguished
file the same, EXCEPT:
1. Lack of jurisdiction over subject matter F. That the claim on which the action is founded is enforceable
2. Res judicata under the provisions of the statute of frauds
3. Prescription - This is one of the ground where the court dismisses the case with
4. Litis pendentia prejudice. Meaning it cannot be refiled.
- Situation:
The motion was granted, case can be refiled because the dismissal is without A orally sold her parcel of land to B in the amount of Php1M. is it
prejudice, EXCEPT: enforceable?

1. Res judicata
2. Prescription A: No, sale of real property must always be in writing, not necessarily in

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3. Extinguishment of the claim or demand public instrument because a sale in writing is still valid between the
4. The contract is unenforceable parties even if not notarized. If it should be in a public instrumentfor its
validity, you are referring to the solemn contracts. An example is
Grounds: donation. It must be in a public document to be valid.

A. Lack of Jurisdiction over the defendant or subject matter


Note: If the ground is lack of jurisdiction over the person of the defendant due to Using the same facts, make it enforceable.
improper service of summons, the SC in one case rules that the court should not A: if there is already partial payment or the land was already delivered, it
dismiss the motion but rather issue an ALIAS SUMMONS anew to the defendant. becomes enforceable because unenforceable contract refers only to
B. Res Judicata executory contracts, not to partially executed contracts. Even if A orally
sold his land but B has already paid partially, it is already enforceable.
Requisites for Res Judicata:
1. The case which served as a basis for res judicata must be tried on the
Relevant Provisions:
merits. If dismissed by the court on a mere technicality, it would not become
res judicata Section 2. Hearing of motion. - At the hearing of the motion, the parties shall
2. It must be issued by a court of competent jurisdiction submit their arguments on the questions of law and their evidence on the
questions of fact involved except those not available at that time. Should the case

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

go to trial, the evidence presented during the hearing shall automatically be part of
the evidence of the party presenting the same. RULE 17
DISMISSAL OF ACTIONS
Section 3. Resolution of motion. - After the hearing, the court may dismiss the
action or claim, deny the motion, or order the amendment of the pleading. Relevant Provision:
The court shall not defer the resolution of the motion for the reason that the Section 1. Dismissal upon notice by plaintiff. - A complaint may be dismissed by
ground relied upon is not indubitable. the plaintiff by filing a notice of dismissal at any time before service of the answer
In every case, the resolution shall state clearly and distinctly the reasons or of a motion for summary judgment. Upon such notice being filed, the court shall
therefor. issue an order confirming the dismissal. Unless otherwise stated in the notice, the
Section 4. Time to plead. - If the motion is denied, the movant shall file his answer dismissal is without prejudice, except that a notice operates as an adjudication
within the balance of the period prescribed by Rule 11 to which he was entitled at the upon the merits when filed by a plaintiff who has once dismissed in a competent
time of serving his motion, but not less than five (5) days in any event, computed court an action based on or including the same claim.
from his receipt of the notice of the denial. If the pleading is ordered to be amended,
Q: Can there be an instance where you want to dismiss the case by not
he shall file his answer within the period prescribed by Rule 11 counted from service
filing a motion to dismiss but another pleading?
of the amended pleading, unless the court provides a longer period.
Section 5. Effect of dismissal. - Subject to the right of appeal, an order granting a A: Notice of dismissal.
motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar In a notice of dismissal, the Court is notified by a pleading that you are
the refiling of the same action or claim. not already interested and will be dismissing the case. It should be filed before the
Section 6. Pleading grounds as affirmative defenses. - If no motion to dismiss has service of the answer or any responsive pleading or before the filing of a motion
been filed, any of the grounds for dismissal provided for in this Rule may be pleaded for summary judgment if it warrants a summary judgment. Otherwise, failure to
as an affirmative defense in the answer and, in the discretion of the court, a take note of the period and you want to dismiss, you cannot do that already. What
preliminary hearing may be had thereon as if a motion to dismiss had been filed. you can do is to file a motion to dismiss and there is an adverse consequence.
The dismissal of the complaint under this section shall be without prejudice If the plaintiff already received the answer of the defendant, he can no
to the prosecution in the same or separate action of a counterclaim pleaded in the longer dismiss the case through notice of dismissal.
answer. TN: Upon receipt of the notice of dismissal, the court should issue a confirmation
RECAP: order, which is without prejudice and can still be refiled but there are exceptions.

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Exceptions: (1) if it is so stated in the order; or
In the context of res judicata as a ground to motion to dismiss, the law says
identity of parties, identity of subject matter and identity of cause of action. Absolute (2) the two-dismissal rule.
identity is not required, what is required is only substantial identity. Example: The
plaintiff in the original case is Juan de la Cruz but when it was refiled, it was done by Two-dismissal Rule - when before the notice of dismissal, the plaintiff has
one of his grandson, here, there is res judicata because there is substantial identity already filed the same case in the same jurisdiction and also filed a notice of
between parties. dismissal of that case. If he has already filed two notices of dismissal for a court of
In res judicata, there are two aspects: (1) bar by prior judgment and (2) competent jurisdiction, that becomes a dismissal with prejudice and he cannot
conclusiveness of judgment. refile the same with the court.
If motion to dismiss is denied, the defendant still has 15 days to file his
answer because of the principle of “fresh period rule”. The fresh period rule does not Relevant Provision:
apply in a motion to bill of particulars because in a motion to bill of particulars, you
Section 2. Dismissal upon motion of plaintiff. - Except as provided in the
have only the remaining days to file the pleading but not less than 5 days.
preceding section, a complaint shall not be dismissed at the plaintiff's instance save
In all other cases, the fresh period applies. Fresh period rule does not apply upon approval of the court and upon such terms and conditions as the court deems
to administrative proceedings but only to judicial proceedings. proper. If a counterclaim has been pleaded by a defendant prior to the service
If motion is denied, the defendant has the entire 15 days from the receipt of upon him of the plaintiff's motion for dismissal, the dismissal shall be limited to the
denial of his motion to dismiss to file his answer. complaint. The dismissal shall be without prejudice to the right of the defendant to

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

prosecute his counterclaim in a separate action unless within fifteen (15) days from
notice of the motion he manifests his preference to have his counterclaim resolved in RULE 18
the same action. Unless otherwise specified in the order, a dismissal under this PRE-TRIAL
paragraph shall be without prejudice. A class suit shall not be dismissed or
compromised without the approval of the court. Relevant Provision:
TN: When you want to dismiss and there was already an answer or service of Section 1. When conducted. - After the last pleading has been served and filed, it
answer, file a motion to dismiss, not a notice of dismissal. However, the consequence shall be the duty of the plaintiff to promptly move ex parte that the case be set for
on the part of the plaintiff is that if he files a motion to dismiss after an answer is pre-trial.
filed, the dismissal filed by the plaintiff would not include the compulsory TN: If answer was filed, but no reply was filed or answer was filed and plaintiff
counterclaim filed by the defendant. Dismissal of the complaint will not carry with it filed a reply because it contained an actionable document, the counsel of the
the dismissal of the compulsory counterclaim, such as the moral damages, exemplary plaintiff must now file a motion setting the case for pretrial because upon filing of
damages, attorney’s fees, and litigation fees prayed for in the answer of the the answer or reply, the issues are already joined and if the issues are already
defendant. The defendant, even if the main case is dismissed, may inform the court joined; the case is now ready for pre-trial conference.
or make a manifestation to the court within 15 days from the receipt of the dismissal
that he wants his counterclaim be tried by the court in the same case or file it in a
separate case. The case can be referred first for mediation at the Philippine Mediation
Center because mediation is part of pre-trial. In mediation, the mediator is given
30 days but he can file for extension, however, such extension is only allowed in
Relevant Provision: civil cases but not in criminal cases. Whether the mediation succeeds or fails, a
Section 3. Dismissal due to fault of plaintiff. - If, for no justifiable cause, the plaintiff report should be submitted to the court. If mediation fails, another stage in pre-
fails to appear on the date of the presentation of his evidence in chief on the trial is the judicial dispute resolution where the court itself conducts the mediation.
complaint, or to prosecute his action for an unreasonable length of time, or to comply If successful, then proceed to pre-trial.
with these Rules or any order of the court, the complaint may be dismissed upon
motion of the defendant or upon the court's own motion, without prejudice to the Relevant Provision:
right of the defendant to prosecute his counterclaim in the same or in a separate Section 2. Nature and purpose. - The pre-trial is mandatory. The court shall
action. This dismissal shall have the effect of an adjudication upon the merits, unless consider:
otherwise declared by the court.

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(a) The possibility of an amicable settlement or of a submission to alternative
Other grounds that would merit the dismissal of the case: modes of dispute resolution;
- Nonappearance without justifiable cause when required by the Court (b) The simplification of the issues;
- Failure to prosecute for an unreasonable length of time
(c) The necessity or desirability of amendments to the pleadings;
- Failure to obey the rules of the Court
- Failure to comply a lawful order of the Court – Example: The Court ordered (d) The possibility of obtaining stipulations or admissions of facts and of
for the amendment of the complaint within 15 days from receipt of the documents to avoid unnecessary proof;
order, but it was not complied. (e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to a commissioner;
Relevant Provision:
(g) The propriety of rendering judgment on the pleadings, or summary
Section 4. Dismissal of counterclaim, cross-claim, or third-party complaint. - The judgment, or of dismissing the action should a valid ground therefor be
provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or found to exist;
third-party complaint. A voluntary dismissal by the claimant by notice as in section 1
of this Rule, shall be made before a responsive pleading or a motion for summary (h) The advisability or necessity of suspending the proceedings; and
judgment is served or, if there is none, before the introduction of evidence at the trial (i) Such other matters as may aid in the prompt disposition of the action.
or hearing.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 36
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

During pre-trial, there is stipulation of facts, admission, listing of witnesses, listing of


exhibits and other matters. Pre-trial is also the stage to determine whether there is a Pre-trial Brief
possibility of mediation or conciliation between the parties.
Relevant Provision:
Appearance of Parties during Pre-Trial Section 6. Pre-trial brief. - The parties shall file with the court and serve on the
adverse party, in such manner as shall ensure their receipt thereof at least three
Relevant Provisions: (3) days before the date of the pre-trial, their respective pre-trial briefs which shall
Section 3. Notice of pre-trial. - The notice of pre-trial shall be served on counsel, or contain, among others:
on the party who has no counsel. The counsel served with such notice is charged (a) A statement of their willingness to enter into amicable settlement or
with the duty of notifying the party represented by him. alternative modes of dispute resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
Section 4. Appearance of parties. - It shall be the duty of the parties and their (c) The issues to be tried or resolved;
counsel to appear at the pre-trial. The non-appearance of a party may be excused
(d) The documents or exhibits to be presented, stating the purpose thereof;
only if a valid cause is shown therefor or if a representative shall appear in his behalf
fully authorized in writing to enter into an amicable settlement, to submit to (e) A manifestation of their having availed or their intention to avail
alternative modes of dispute resolution, and to enter into stipulations or admissions themselves of discovery procedures or referral to commissioners; and
of facts and of documents. (f) The number and names of the witnesses, and the substance of their
respective testimonies.
Section 5. Effect of failure to appear. - The failure of the plaintiff to appear when so Failure to file the pre-trial brief shall have the same effect as failure to
required pursuant to the next preceding section shall be cause for dismissal of the appear at the pre-trial.
action. The dismissal shall be with prejudice, unless otherwise ordered by the court. A
Q: What should be submitted before pre-trial?
similar failure on the part of the defendant shall be cause to allow the plaintiff to
present his evidence ex parte and the court to render judgment on the basis thereof. - Pre-trial briefs – which should be submitted at least 3 days before the
scheduled pre-trial.
TN: The presence of the plaintiff and the defendant during the pre-trial in civil cases - Judicial affidavit (SC 12-8-8) – which should be submitted at least 5 days
is mandatory. Unlike in criminal cases, the presence of the private complainant and before the scheduled pre-trial.
accused are not necessary, and pre-trial can proceed without them. But in civil cases,

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


both the plaintiff and defendant should be present, including their counsels. SC Circular 12-8-8:
If Plaintiff Did Not Appear TN: In civil cases, it is mandatory to submit the witness’s judicial affidavit.
If plaintiff did not appear during pre-trial, but his counsel is present, it would If he was unable to submit the judicial affidavit, he is still allowed to
still result to the dismissal of the complaint on the ground of non suit. It is the non submit the late submission of judicial affidavit, but he must pay a fine of not less
appearance of the plaintiff which will warrant the dismissal on the ground of non suit than P1000 but not more than P5000.
and not the non appearance of the plaintiff’s counsel. If no pre-trial brief was submitted by the plaintiff, the defendant can file a
If Defendant Did Not Appear motion to dismiss on the ground of non submission of pre-trial brief or dismissal of
the complaint on the ground of non-suit, because the non submission of the pre-
If defendant did not appear during pre-trial, the plaintiff is allowed to trial brief have the same effect of non appearance during the pre-trial.
present his evidence ex parte.
If no pre-trial brief was submitted by the defendant, it shall have the
same effect of non appearance during the pre-trial or he be declared in default
TN: The dismissal of the case by the court due to non appearance of the plaintiff and (the term default no longer exist). The plaintiff is allowed to present his evidences
his counsel at the time of pre-trial, but without proper notice of said pre-trial served ex parte.
on them, is violative of due process and the dismissal should be set aside.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 37
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Relevant Provision: TN: If while the hearing of the case was on-going and a third person who is not a
Section 7. Record of pre-trial. - The proceedings in the pre-trial shall be recorded. party in the case felt that he should be included, he must file a motion for leave of
Upon the termination thereof, the court shall issue an order which shall recite in court to file intervention.
detail the matters taken up in the conference, the action taken thereon, the Unlike a third party complaint where the one filing it is already a party of
amendments allowed to the pleadings, and the agreements or admissions made by the case, in intervention, you are not yet a party but you feel aggrieved, you are
the parties as to any of the matters considered. Should the action proceed to trial, not included, you must file a motion for leave of court to intervene.
the order shall explicitly define and limit the issues to be tried. The contents of the Requisites that must be proved either in your complaint in intervention or answer
order shall control the subsequent course of the action, unless modified before trial to in intervention in order to intervene:
prevent manifest injustice.
- Legal interest in the matter of the case
Importance of Pre-trial: Because after the pre-trial, the court issues a pre-trial - Legal interest in the success of either of the party
order which guides the course of the trial of the case. - You are adversely affected by the distribution or disposition of the
property in the custody of the court
- It will not unduly delay or prejudice the adjudication of the rights of the
General rule: If the witnesses and exhibits are not marked during pre-trial, such
original parties or unduly delay the proceedings of the court
witnesses cannot be presented to testify in court and such documents cannot be
presented as exhibits.
Exceptions:
Relevant Provisions:
Section 2. Time to intervene. - The motion to intervene may be filed at any time
- Those to be used for cross examination or re-cross examination for
before rendition of judgment by the trial court. A copy of the pleading-in-
impeachment purposes
- Those presented on redirect examination to explain or supplement the intervention shall be attached to the motion and served on the original parties.
answers of a witness during cross examination General rule: A third person can intervene anytime before the court renders a
- Those to be used for rebuttal or sur-rebuttal judgment.
- Those not available during the pre-trial proceedings despite due diligence on Exception: Mago vs. Court of Appeals, where the SC allowed an intervention
the part of the party offering the same while the case was on appeal in the interest of substantial justice.
After the conduct of pre-trial, the court issues a pre-trial order. Pre-trial
order will contain or recite all the matters that took place during the conduct of the Section 3. Pleadings-in-intervention. - The intervenor shall file a complaint-in-

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pre-trial conference. Then, the case is already ready for trial. intervention if he asserts a claim against either or all of the original parties, or an
answer-in-intervention if he unites with the defending party in resisting a claim
RULE 19 against the latter.
INTERVENTION
Q: What are the kinds of intervention?
Relevant Provision: - Complaint in intervention – if you want to join the plaintiff or you assert a
Section 1. Who may intervene. - A person who has a legal interest in the matter in claim against either or all of the original parties
litigation, or in the success of either of the parties, or an interest against both, or is - Answer in intervention – if you want to unite with the defendant
so situated as to be adversely affected by a distribution or other disposition of If you want to intervene, attach the complaint if it is a complaint in intervention or
property in the custody of the court or of an officer thereof may, with leave of court, attach the answer if it is an answer in intervention.
be allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of the Section 4. Answer to complaint-in-intervention. - The answer to the complaint-in -
original parties, and whether or not the intervenor's rights may be fully protected in a intervention shall be filed within fifteen (15) days from notice of the order
separate proceeding. admitting the same, unless a different period is fixed by the court.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 38
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

TN: Answer to the complaint in intervention should be filed within 15 days from
receipt of the order admitting the intervention. Service of summons is served to the RULE 21
defendant together with the approved compliant in intervention. SUBPOENA
Q: If the defendant was not able or did not file an answer, can he be
Relevant Provision:
declared in default?
Section 1. Subpoena and subpoena duces tecum. - Subpoena is a process
A: No. If no answer was filed by the defendant in the complaint in intervention,
directed to a person requiring him to attend and to testify at the hearing or the
defendant cannot be declared in default, because his first answer can still be
trial of an action, or at any investigation conducted by competent authority, or for
considered as his answer to the complaint in intervention. (Conflict (?) - See page
the taking of his deposition. It may also require him to bring with him any books,
327, #2, Regalado)
documents, or other things under his control, in which case it is called a subpoena
Q: Will the dismissal of the complaint carry with it the dismissal of the duces tecum.
intervention?
Subpoena ad testificandum - the process where a person is required to appear
A: It depends. If the intervention was filed before the complaint was dismissed, the
in court to testify.
intervention survives even after the dismissal of the complaint.
Subpoena duces tecum - the process where a person is required to bring to the
TN: In the case of Barangay Matictic etc. vs. Elbinias etc. et al., it was held that the
court object evidences, documents, papers and other effects.
dismissal of the main case barred the further action on the intervention, while in the
case of Metropolitan Bank and Trust Co. vs. Presiding Judge etc. et al., the complaint
in intervention survived and was allowed to proceed despite the dismissal of the main Relevant Provision:
action. Section 2. By whom issued. - The subpoena may be issued by:
a) the court before whom the witness is required to attend;
RULE 20 b) the court of the place where the deposition is to be taken;
CALENDAR OF CASES
c) the officer or body authorized by law to do so in connection with
Relevant Provisions: investigations conducted by said officer or body; or
Section 1. Calendar of cases. - The clerk of court, under the direct supervision of the d) any Justice of the Supreme Court or of the Court of Appeals in any case or
judge, shall keep a calendar of cases for pre-trial, for trial, those whose trials were investigation pending within the Philippines.

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adjourned or postponed, and those with motions to set for hearing. Preference shall When application for a subpoena to a prisoner is made, the judge or
be given to habeas corpus cases, election cases, special civil actions, and those so officer shall examine and study carefully such application to determine whether the
required by law. same is made for a valid purpose.
Section 2. Assignment of cases. - The assignment of cases to the different branches No prisoner sentenced to death, reclusion perpetua or life imprisonment
of a court shall be done exclusively by raffle. The assignment shall be done in open and who is confined in any penal institution shall be brought outside the said penal
session of which adequate notice shall be given so as to afford interested parties the institution for appearance or attendance in any court unless authorized by the
opportunity to be present. Supreme Court.
TN: Subpoena can be issued to any person. If the person subpoenaed is a
detention prisoner, the rule provides that it should be reviewed by the court if
there is a necessity for the issuance of the subpoena. If the person subpoenaed is
a person convicted by crime punished by death, reclusion perpetua, and life
imprisonment, and he is already serving his sentence, the court cannot issue a
subpoena because persons punished by death, reclusion perpetua, and life
imprisonment cannot be brought outside where he is detained except if it ordered
by the Supreme Court.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 39
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Relevant Provisions:
Section 3. Form and contents. - A subpoena shall state the name of the court and Section 7. Personal appearance in court. - A person present in court before a
the title of the action or investigation, shall be directed to the person whose judicial officer may be required to testify as if he were in attendance upon a
attendance is required, and in the case of a subpoena duces tecum, it shall also subpoena issued by such court or officer.
contain a reasonable description of the books, documents or things demanded which Section 8. Compelling attendance. - In case of failure of a witness to attend, the
must appear to the court prima facie relevant. court or judge issuing the subpoena, upon proof of the service thereof and of the
Section 4. Quashing a subpoena. - The court may quash a subpoena duces tecum failure of the witness, may issue a warrant to the sheriff of the province, or his
upon motion promptly made and, in any event, at or before the time specified therein deputy, to arrest the witness and bring him before the court or officer where his
if it is unreasonable and oppressive, or the relevancy of the books, documents or attendance is required, and the cost of such warrant and seizure of such witness
things does not appear, or if the person in whose behalf the subpoena is issued fails shall be paid by the witness if the court issuing it shall determine that his failure to
to advance the reasonable cost of the production thereof. answer the subpoena was willful and without just excuse.
The court may quash a subpoena ad testificandum on the ground that the Section 9. Contempt. - Failure by any person without adequate cause to obey a
witness is not bound thereby. In either case, the subpoena may be quashed on the subpoena served upon him shall be deemed a contempt of the court from which
ground that the witness fees and kilometrage allowed by these Rules were not the subpoena is issued. If the subpoena was not issued by a court, the
tendered when the subpoena was served. disobedience thereto shall be punished in accordance with the applicable law or
Rule.
TN: If the other party or the person who was subpoenaed is aggrieved to the
issuance of the subpoena, he may file a motion to quash the subpoena on the TN: If the person duly subpoenaed did not appear in court to testify, the legal
following grounds: consequence of his failure to obey the subpoena duly served would be indirect
contempt.
- if it is unreasonable and oppressive
- if the documents are not relevant to the case (in subpoena duces tecum) But even if he is not declared by the court in indirect contempt, the court
- if no fees were paid may order his arrest to compel him to testify and appear in court,
Power to declare in contempt is inherent in Court but not inherent in
other agencies. If the law which created such agency or body gives them the
Relevant Provisions:
power to punish by contempt, it is allowed. But if the law does not vest them the
Section 5. Subpoena for depositions. - Proof of service of a notice to take a power, they cannot exercise that. Some quasi-judicial agencies are given the
deposition, as provided in sections 15 and 25 of Rule 23, shall constitute sufficient

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power to issue subpoena and declare one in contempt for failure such as the
authorization for the issuance of subpoenas for the persons named in said notice by COMELEC, NLRC, Civil Service Commission, and COA.
the clerk of the court of the place in which the deposition is to be taken. The clerk
shall not, however, issue a subpoena duces tecum to any such person without an
Relevant Provisions:
order of the court.
Section 10. Exceptions. - The provisions of sections 8 and 9 of this Rule shall not
Section 6. Service. - Service of a subpoena shall be made in the same manner as
apply to a witness who resides more than one hundred (100) kilometers from his
personal or substituted service of summons. The original shall be exhibited and a
residence to the place where he is to testify by the ordinary course of travel, or to
copy thereof delivered to the person on whom it is served, tendering to him the fees
a detention prisoner if no permission of the court in which his case is pending was
for one day’s attendance and the kilometrage allowed by these Rules, except that,
obtained.
when a subpoena is issued by or on behalf of the Republic of the Philippines or an
officer or agency thereof, the tender need not be made. The service must be made Viatory right – the right available in civil cases, but not in criminal cases, wherein
so as to allow the witness a reasonable time for preparation and travel to the place of the person duly subpoenaed resides more than 100 kilometers away from the court
attendance. If the subpoena is duces tecum, the reasonable cost of producing the where he is supposed to testify and appear, to which they cannot compel such
books, documents or things demanded shall also be tendered. witness to testify and appear.
Modes in the service of subpoena:
 Personal and Substituted Service

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 40
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

4. Admission by adverse party (Rule 26)


RULE 22 5. Production and inspection of documents or things (Rule 27)
COMPUTATION OF TIME 6. Physical and mental examination of persons (Rule 28)
Rules 23 and 24 gives you the two classification of deposition.
Relevant Provisions:
Depositions are classified into:
Section 1. How to compute time. - In computing any period of time prescribed or
allowed by these Rules, or by order of the court, or by any applicable statute, the day 1. Depositions upon oral examination and depositions upon written
of the act or event from which the designated period of time begins to run is to be interrogatories
excluded and the date of performance included. If the last day of the period, as thus 2. Depositions de bene esse and depositions in perpetuam rei memoriam
computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the
court sits, the time shall not run until the next working day. Under Rule 23-24, the deposition of a person may cover anything in connection
with the case except those which are privileged in nature.
Section 2. Effect of interruption. - Should an act be done which effectively As to what should be the appropriate deposition that should be availed of
interrupts the running of the period, the allowable period after such interruption shall in a given situation or in a given case, it depends on the court. Because the court
start to run on the day after notice of the cessation of the cause thereof. has discretion whether it will grant your deposition by means of oral testimony or
The day of the act that caused the interruption shall be excluded in the written interrogatory.
computation of the period. When summons are issued, an order is also issued either to the defendant
TN: In Civil Law, first day is excluded and last day is included, if the last day is a non or plaintiff (together with the service of summons) to inform the court within 5
working day or holiday, the next working day. Not applicable in criminal cases, for days from receipt of such order whether they wish to avail of any of the modes of
purposes of prescription, if the last day falls on a nonworking day or holiday, better discovery because it is mandated by the rules.
file the complaint the day before such nonworking day or holiday. But in all other If you will not comply with the order, one legal consequence is that you
cases, such as civil cases, if the last day is a non-working day or holiday, you still are not allowed to present the witness of the other party as a hostile or adverse
have the next working day to file a motion or complaint. witness because you did not comply with the order to inform the court that you
wish to avail the modes of discovery. Because there are cases, that as representing
the plaintiff, you can present one of the witnesses of the defendant and vice versa
MODES OF DISCOVERY
as your witness so that witness becomes a hostile or adverse witness.

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


RULE 23 - 29
Example:
- You filed a case for annulment of contract, as plaintiff, you said that at
Rule 29 discuss on the effects of failure to comply with any of the modes of the time when you signed the contract, you were insane. To prove your
discovery under 23 to 28. cause of action, file a motion for the mental examination, even before the
The court will always encourage the parties to avail of any of the mode of start of the case.
discovery because this will actually expedite the trial and the disposition of the case - If the witness is about to leave for the USA and he has no definite date of
and would ultimately facilitate the parties entering into a compromise agreement. returning, you can file a motion for the taking of his deposition.
The rule in our jurisdiction is that each party should avoid surprises. That is
why during pre-trial conference you are to lay down all evidences and witnesses. And RULE 23
this is further strengthened by the availment of any of these modes of discovery. DEPOSITION PENDING ACTION

TN: In rule 23, it presupposes that there is a pending case.


Modes of Discovery
Q. What would compel you to file a motion for the taking of deposition of
1. Depositions pending action (Rule 23) the witness either of the plaintiff or the defendant?
2. Depositions before action or pending appeal (Rule 24)
A. That witness resides more than 100km away from the place of trial
3. Interrogatories to parties (Rule 25)

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 41
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

TN: Although the taking of the deposition is not a substitute for the testimony of the Grounds for the use of depositions: (refer to sec. 4 par. c)
witness in court, but if the witness can testify in court then the court prefers that he 1. the witness is dead
should testify. 2. the witness resides more than 100km away from the place of trial, or is
Whether your deposition is granted is discretionary on the part of the court. out of the Philippines
It presupposes here that the witness cannot actually come to court and testify during 3. the witness is unable to testify because of age, sickness, infirmity, or
the scheduled hearing. imprisonment
It is not a guarantee that you can file deposition anytime because although 4. due to exceptional circumstances
this is one of the modes of discovery if the witness however can testify in court TN: If the witness is supposed to be an essential witness and would fall in any of
because he is able and willing to testify in court then that should be given priority these situations then your remedy is the taking of the witness deposition
more than the taking of his deposition. particularly if the witness is old and could not even walk, is infirmed or other
exigent circumstances, maybe the witness is leaving for another country and you
are not sure as to when he is coming back, in that particular instance you better
Relevant provision:
take the deposition of that particular witness.
Section 4. Use of depositions. - At the trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of a deposition, so far as admissible under
Relevant Provision:
the rules of evidence, may be used against any party who was present or
Section 1. Depositions pending action, when may be taken. — By leave of court
represented at the taking of the deposition or who had due notice thereof, in
after jurisdiction has been obtained over any defendant or over property which is
accordance with any one of the following provisions: the subject of the action, or without such leave after an answer has been served,
(a) Any deposition may be used by any party for the purpose of contradicting or the testimony of any person, whether a party or not, may be taken, at the instance
impeaching the testimony of deponent as a witness; of any party, by deposition upon oral examination or written interrogatories. The
attendance of witnesses may be compelled by the use of a subpoena as provided
(b) The deposition of a party or of anyone who at the time of taking the in Rule 21. Depositions shall be taken only in accordance with these Rules. The
deposition was an officer, director, or managing agent of a public or private deposition of a person confined in prison may be taken only by leave of court on
corporation, partnership, or association which is a party may be used by an such terms as the court prescribes.
adverse party for any purpose; Q: When you take the deposition of a witness because such witness falls

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


(c) The deposition of a witness, whether or not a party, may be used by any under given grounds, does it need leave of court?
party for any purpose if the court finds: (1) that the witness is dead; or (2) that A: The taking of deposition of witness requires leave of court after the court has
the witness resides at a distance more than one hundred (100) kilometers from acquired jurisdiction over the defendant or over the property which is the subject
the place of trial or hearing, or is out of the Philippines, unless it appears that his matter of the case, but if answer of the defendant was already filed and served to
absence was procured by the party offering the deposition; or (3) that the the adverse party, leave of court is not needed.
witness is unable to attend or testify because of age, sickness, infirmity, or TN: Deposition can be by means of oral testimony or written interrogatories.
imprisonment; or (4) that the party offering the deposition has been unable to
procure the attendance of the witness by subpoena; or (5) upon application and Relevant Provisions:
notice, that such exceptional circumstances exist as to make it desirable, in the Section 10. Persons before whom depositions may be taken within the
interest of justice and with due regard to the importance of presenting the Philippines. — Within the Philippines depositions may be taken before any judge,
testimony of witnesses orally in open court, to allow the deposition to be used; notary public, or the person referred to in section 14 hereof.
and Section 11. Persons before whom depositions may be taken in foreign countries.
— In a foreign state or country, depositions may be taken (a) on notice before a
(d) If only part of a deposition is offered in evidence by a party, the adverse
secretary of embassy or legation, consul general, consul, vice-consul, or consular
party may require him to introduce all of it which is relevant to the part
agent of the Republic of the Philippines, (b) before such person or officer as may
introduced, and any party may introduce any other parts.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 42
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

be appointed by commission or under letters rogatory; or (c) the person referred to A: You present a witness as the same in trial but not in an open court. You cause a
in section 14 hereof. direct examination, the other party will cross examine him, redirect examination
Section 12. Commission or letters rogatory. — A commission or letters rogatory and then recross examination.
shall be issued only when necessary or convenient, on application and notice, and on TN: It is just like a presentation of witness in an open court. Even if it is done
such terms, and with such direction as are just and appropriate. Officers may be before a judge, it is not the actually a trial. It can either be done in the chamber of
designated in notices or commissions either by name or descriptive title and letters the judge or before a notary public. This is simply what is meant by taking of a
rogatory may be addressed to the appropriate judicial authority in the foreign deposition based on oral testimony. In fact this is the easiest and most often
country. resorted to by lawyers.
Section 14. Stipulations regarding taking of depositions. — If the parties so stipulate
in writing, depositions may be taken before any person authorized to administer Relevant provision:
oaths, at any time or place, in accordance with these Rules and when so taken may
Section 17. Record of examination, oath; objections. — The officer before whom
be used like other depositions.
the deposition is to be taken shall put the witness on oath and shall personally, or
Q: Before whom should the taking of deposition be made? by some one acting under his direction and in his presence, record the testimony
A: If the taking of the deposition is within the Philippines, it may be taken before any of the witness. The testimony shall be taken stenographically unless the parties
judge, notary public (lawyer appointed by the court) or any persons agreed upon by agree otherwise. All objections made at the time of the examination to the
the parties and authorized to administer oath. qualifications of the officer taking the deposition, or to the manner of talking it, or
to the evidence presented, or to the conduct of any party, and any other objection
If the taking of the deposition is in foreign countries, it may be taken before
to the proceedings, shall be noted by the officer upon the deposition. Evidence
a secretary of embassy or legation, consul general, consul, vice-consul, or consular
objected to shall be taken subject to the objections. In lieu of participating in the
agent of the Republic of the Philippines, person or officer as may be appointed by
oral examination, parties served with notice of taking a deposition may transmit
commission or under letters rogatory or any person agreed upon by the parties who
written interrogatories to the officers, who shall propound them to the witness and
are authorized by law to administer oath.
record the answers verbatim.
TN: Under the rules, if the taking of deposition before a commission will not be
successful then you are allowed to avail of the taking of a deposition before a person Q: In the process of the taking of the deposition before a notary public or
who is allowed in letters rogatory. a person authorized to administer oath because parties agreed on that,
and there are certain objections raised by either counsel. Can the person
The commission and letters rogatory are only persons who can take the

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


before whom the deposition is taken resolve the objections? Can he rule
depositions if the taking of deposition is taken out of the Philippines.
over these particular objections?
A. No. He is not authorized. The objections will just form part of the proceedings.
Q: Where lies difference the two? Which of the two is addressed to a He will receive the objections put that in the records of the case. And at the end of
judicial authority? (memorize!) the day, the objections raised during the taking of the deposition shall be done and
Commission is an instrument issued by a foreign justice or other competent tribunal be resolved by the court.
to authorize a person to take depositions or do other act by authority of such court or Q: What about this so called deposition by means of written
tribunal. interrogatories. How is it done? When the court granted the deposition
Letters rogatory are instruments sent in the name and by authority of a judge or of the witness, he chose that the taking of the deposition should be by
court to another, requesting the latter to cause to be be examined, upon means of written interrogatories. Because whether it is oral testimony or
interrogatories filed in a cause pending before the former, a witness who is within the written interrogatory it is discretionary on the part of the court.
jurisdiction of the judge or court to whom such letters are addressed. A: The written set of interrogatories is served to the counsel of the adverse party.
And the adverse party is given 10 days from receipt of the written set of
Q. The taking of the deposition whether it should be oral testimony or interrogatories to submit cross interrogatories.
written interrogatories depends on the discretion of the court. If this is oral
testimony, what is usually done?

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 43
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Q: After receiving this cross interrogatories, it is like that your cross whether relating to the claim or defense of any other party, including the
examination is reduced into question and answer form. What else can the existence, description, nature, custody, condition, and location of any books,
other party do? documents, or other tangible things and the identity and location of persons having
A: The other party can submit redirect interrogatories within 5 days. Then after the knowledge of relevant facts. (2, R24)
redirect, the adverse party also submits the recross interrogatories within 3 days.
Section 3. Examination and cross-examination. — Examination and cross-
examination of deponents may proceed as permitted at the trial under sections 3
Relevant Provision: to 18 of Rule 132. (3a, R24)
Section 13. Disqualification by interest. — No deposition shall be taken before a
person who is a relative within the sixth degree of consanguinity or affinity, or Section 5. Effect of substitution of parties. — Substitution of parties does not
employee or counsel of any of the parties, or who is a relative within the same affect the right to use depositions previously taken; and, when an action has been
degree, or employee of such counsel; or who is financially interested in the action. dismissed and another action involving the same subject is afterward brought
between the same parties or their representatives or successors in interest, all
Q: Are there certain prohibitions wherein a notary public is not qualified to
depositions lawfully taken and duly filed in the former action may be used in the
act as a person to whom the deposition should be taken? Can the court just
latter as if originally taken therefor. (5, R24)
appoint anybody? Is there no disqualification?
A: A person who is a relative within the sixth degree of consanguinity and affinity. Section 6. Objections to admissibility. — Subject to the provisions of section 29 of
TN: If the court appointed a notary public who is related within sixth degree of this Rule, objection may be made at the trial or hearing, to receiving in evidence
consanguinity or affinity to one of the parties of this case, the other party must any deposition or part thereof for any reason which would require the exclusion of
object. You have to do that because it might be biased. The objection must be raised the evidence if the witness were then present and testifying.
prior to the taking of the deposition otherwise it is waived and you are not allowed to
question it later. Section 7. Effect of taking depositions. — A party shall not be deemed to make a
person his own witness for any purpose by taking his deposition. (7, R24)
General rule: The deposition of a witness is always binding on the party procuring Section 8. Effect of using depositions. — The introduction in evidence of the
the same, to the party who applied for the taking of the deposition. The deposition is deposition or any part thereof for any purpose other than that of contradicting or
always binding to the applicant. impeaching the deponent makes the deponent the witness of the party introducing

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Exceptions: Two exceptions where the deposition is not binding to the applicant: the deposition, but this shall not apply to the use by an adverse party of a
1. If the taking of the deposition is used to impeach the testimony of another deposition as described in paragraph (b) of section 4 of this Rule. (8, R24)
witness
2. If he is not the one who is actually procuring the taking of that particular Section 9. Rebutting deposition. — At the trial or hearing any party may rebut any
deposition. relevant evidence contained in a deposition whether introduced by him or by any
other party. (9, R24)
Q: There is a deposition which was already taken but unfortunately the
case was dismissed by the court. Can that still be used if the case is refiled
Section 15. Deposition upon oral examination; notice; time and place. — A party
or if a new case is filed?
desiring to take the deposition of any person upon oral examination shall give
A: Yes, it can still be used even if the case upon which that deposition was taken was reasonable notice in writing, to every other party to the action. The notice shall
dismissed by the court and a new case was filed involving same parties and same state the time and place for taking the deposition and the name and address of
subject matter. each person to be examined, if known, and if the name is not known, a general
description sufficient to identify him or the particular class or group to which he
Other Provisions: belongs. On motion of any party upon whom the notice is served, the court may
for cause shown enlarge or shorten the time. (15, R24)
Section 2. Scope of examination. — Unless otherwise ordered by the court as
provided by section 16 or 18 of this Rule, the deponent may be examined regarding
any matter, not privileged, which is relevant to the subject of the pending action,

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 44
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Section 16. Orders for the protection of parties and deponents. — After notice is Section 20. Certification, and filing by officer. — The officer shall certify on the
served for taking a deposition by oral examination, upon motion seasonably made by deposition that the witness was duly sworn to by him and that the deposition is a
any party or by the person to be examined and for good cause shown, the court in true record of the testimony given by the witness. He shall then securely seal the
which the action is pending may make an order that the deposition shall not be deposition in an envelope indorsed with the title of the action and marked
taken, or that it may be taken only at some designated place other than that stated "Deposition of (here insert the name of witness)" and shall promptly file it with the
in the notice, or that it may be taken only on written interrogatories, or that certain court in which the action is pending or send it by registered mail to the clerk
matters shall not be inquired into, or that the scope of the examination shall be held thereof for filing. (20, R24)
with no one present except the parties to the action and their officers or counsel, or
that after being sealed the deposition shall be opened only by order of the court, or Section 21. Notice of filing. — The officer taking the deposition shall give prompt
that secret processes, developments, or research need not be disclosed, or that the notice of its filing to all the parties. (21, R24)
parties shall simultaneously file specified documents or information enclosed in sealed
envelopes to be opened as directed by the court or the court may make any other Section 22. Furnishing copies. — Upon payment of reasonable charges therefor,
order which justice requires to protect the party or witness from annoyance, the officer shall furnish a copy of the deposition to any party or to the deponent.
embarrassment, or oppression. (16a, R24) (22, R24)

Section 18. Motion to terminate or limit examination. — At any time during the Section 23. Failure to attend of party giving notice. — If the party giving the
taking of the deposition, on motion or petition of any party or of the deponent, and notice of the taking of a deposition fails to attend and proceed therewith and
upon a showing that the examination is being conducted in bad faith or in such another attends in person or by counsel pursuant to the notice, the court may
manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the order the party giving the notice to pay such other party the amount of the
court in which the action is pending or the Regional Trial Court of the place where the reasonable expenses incurred by him and his counsel in so attending, including
deposition is being taken may order the officer conducting the examination to cease reasonable attorney's fees. (23a, R24)
forthwith from taking the deposition, or may limit the scope and manner of the taking
of the deposition, as provided in section 16 of this Rule. If the order made terminates Section 24. Failure of party giving notice to serve subpoena. — If the party giving
the examination, it shall be resumed thereafter only upon the order of the court in the notice of the taking of a deposition of a witness fails to serve a subpoena upon
which the action is pending. Upon demand of the objecting party or deponent, the him and the witness because of such failure does not attend, and if another party
taking of the deposition shall be suspended for the time necessary to make a notice attends in person or by counsel because he expects the deposition of that witness
for an order. In granting or refusing such order, the court may impose upon either to be taken, the court may order the party giving the notice to pay to such other

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party or upon the witness the requirement to pay such costs or expenses as the court party the amount of the reasonable expenses incurred by him and his counsel in so
may deem reasonable. (18a, R24) attending, including reasonable attorney's fees. (24a, R24)

Section 19. Submission to witness; changes; signing. — When the testimony is fully Section 25. Deposition upon written interrogatories; service of notice and of
transcribed, the deposition shall be submitted to the witness for examination and interrogatories. — A party desiring to take the deposition of any person upon
shall be read to or by him, unless such examination and reading are waived by the written interrogatories shall serve them upon every other party with a notice
witness and by the parties. Any changes in form or substance which the witness stating the name and address of the person who is to answer them and the name
desires to make shall be entered upon the deposition by the officer with a statement or descriptive title and address of the officer before whom the deposition is to be
of the reasons given by the witness for making them. The deposition shall then be taken. Within ten (10) days thereafter, a party so served may serve cross-
signed by the witness, unless the parties by stipulation waive the signing or the interrogatories upon the party proposing to take the deposition. Within five (5)
witness is ill or cannot be found or refuses to sign. If the deposition is not signed by days thereafter, the latter may serve re-direct interrogatories upon a party who has
the witness, the officer shall sign it and state on the record the fact of the waiver or served cross-interrogatories. Within three (3) days after being served with re-direct
of the illness or absence of the witness or the fact of the refusal to sign together with interrogatories, a party may serve recross-interrogatories upon the party proposing
the reason be given therefor, if any, and the deposition may then be used as fully as to take the deposition. (25, R24)
though signed, unless on a motion to suppress under section 29 (f) of this Rule, the
court holds that the reasons given for the refusal to sign require rejection of the Section 26. Officers to take responses and prepare record. — A copy of the notice
deposition in whole or in part. (19a, R24) and copies of all interrogatories served shall be delivered by the party taking the

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 45
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

deposition to the officer designated in the notice, who shall proceed promptly, in the (f) As to manner of preparation. — Errors and irregularities in the manner in
manner provided by sections 17, 19 and 20 of this Rule, to take the testimony of the which the testimony is transcribed or the deposition is prepared, signed,
witness in response to the interrogatories and to prepare, certify, and file or mail the certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the
deposition, attaching thereto the copy of the notice and the interrogatories received officer under sections 17, 19, 20 and 26 of this Rule are waived unless a
by him. (26, R24) motion to suppress the deposition or some part thereof is made with
reasonable promptness after such defect is, or with due diligence might have
Section 27. Notice of filing and furnishing copies. — When a deposition upon been, ascertained. (29a, R24)
interrogatories is filed, the officer taking it shall promptly give notice thereof to all the
parties, and may furnish copies to them or to the deponent upon payment of RULE 24
reasonable charges therefor. (27, R24) DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

Section 28. Order for the protection of parties and deponents. — After the service Relevant Provisions:
of the interrogatories and prior to the taking of the testimony of the deponent, the Section 1. Depositions before action; petition. — A person who desires to
court in which the action is pending, on motion promptly made by a party or a perpetuate his own testimony or that of another person regarding any matter that
deponent, and for good cause shown, may make any order specified in sections 15, may be cognizable in any court of the Philippines may file a verified petition in the
16 and 18 of this Rule which is appropriate and just or an order that the deposition court of the place of the residence of any expected adverse party.
shall not be taken before the officer designated in the notice or that it shall not be
Section 2. Contents of petition. — The petition shall be entitled in the name of the
taken except upon oral examination. (28a, R24)
petitioner and shall show: (a) that the petitioner expects to be a party to an action
in a court of the Philippines but is presently unable to bring it or cause it to be
Section 29. Effect of errors and irregularities in depositions. —
brought; (b) the subject matter of the expected action and his interest therein; (c)
(a) As to notice. — All errors and irregularities in the notice for taking a
the facts which he desires to establish by the proposed testimony and his reasons
deposition are waived unless written objection is promptly served upon the party
for desiring to perpetuate it; (d) the names or a description of the persons he
giving the notice.
expects will be adverse parties and their addresses so far as known; and (e) the
(b) As to disqualification of officer. — Objection to taking a deposition because
names and addresses of the persons to be examined and the substance of the
of disqualification of the officer before whom it is to be taken is waived unless
testimony which he expects to elicit from each, and shall ask for an order
made before the taking of the deposition begins or as soon thereafter as the
authorizing the petitioner to take the depositions of the persons to be examined
disqualification becomes known or could be discovered with reasonable diligence.

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


named in the petition for the purpose of perpetuating their testimony.
(c) As to competency or relevancy of evidence. — Objections to the competency
of witness or the competency, relevancy, or materiality of testimony are not Q: Where lies the difference between deposition pending action,
waived by failure to make them before or during the taking of the deposition, deposition before action and deposition pending appeal?
unless the ground, of the objection is one which might have been obviated or A: In rule 24, there are two kinds of depositions: deposition before action &
removed if presented at that time. deposition pending appeal.
(d) As to oral examination and other particulars. — Errors and irregularities
In deposition before action there is no case yet while in deposition
occurring at the oral examination in the manner of taking the deposition in the
pending action there is already a case.
form of the questions or answers, in the oath or affirmation, or in the conduct of
the parties and errors of any kind which might be obviated, removed, or cured if Q. That is why if you want the taking of deposition under rule 23, you
promptly prosecuted, are waived unless reasonable objection thereto is made at just file a motion before that court. Can this be done under rule 24,
the taking of the deposition. deposition before action? Can you do that by just filing a motion?
(e) As to form of written interrogatories. — Objections to the form of written A. No. You file a petition to take the deposition before action of the witness.
interrogatories submitted under sections 25 and 26 of this Rule are waived TN: You are intending here to file a case but you felt that your important witness
unless served in writing upon the party propounding them within the time is leaving abroad without definite date of returning. So in that particular instance,
allowed for serving succeeding cross or other interrogatories and within three (3) what you do is file a deposition before action. The same grounds with the purposes
days after service of the last interrogatories authorized. or reasons when you can avail of deposition pending action these are also same
grounds with deposition before action.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 46
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Q: Where should you file the petition for deposition before action? perpetuate their testimony for in the event of further proceedings in the said court.
A: File a petition in the court of the place where adverse party resides. In such case the party who desires to perpetuate the testimony may make a
motion in the said court for leave to take the depositions, upon the same notice
and service thereof as if the action was pending therein. The motion shall state (a)
Relevant provision: the names and addresses of the persons to be examined and the substance of the
Section 3. Notice and service. — The petitioner shall serve a notice upon each testimony which he expects to elicit from each, and (b) the reason for perpetuating
person named in the petition as an expected adverse party, together with a copy of their testimony. If the court finds that the perpetuation of the testimony is proper
the petition, stating that the petitioner will apply to the court, at a time and place to avoid a failure or delay of justice, it may make an order allowing the deposition
named therein, for the order described in the petition. At least twenty (20) days to be taken, and thereupon the depositions may be taken and used in the same
before the date of the hearing, the court shall cause notice thereof to be served on manner and under the same conditions as are prescribed in these Rules for
the parties and prospective deponents in the manner provided for service of depositions taken in pending actions.
summons. Q: What about if this deposition pending appeal? What should be done?
Section 4. Order and examination. — If the court is satisfied that the perpetuation A: You file a motion for deposition pending appeal in the court that rendered the
of the testimony may prevent a failure or delay of justice, it shall make an order decision.
designating or describing the persons whose deposition may be taken and specifying
the subject matter of the examination and whether the depositions shall be taken TN: It presupposes here that the court might already have rendered judgment
upon oral examination or written interrogatories. The depositions may be taken in against you and you trying to make an appeal. And you felt that one of the witness
accordance with Rule 23 before the hearing. will die along the way because he is too old and you plan to take his deposition.

Section 5. Reference to court. — For the purpose of applying Rule 23 to depositions RULE 25
for perpetuating testimony, each reference therein to the court in which the action is INTERROGATORIES TO PARTIES
pending shall be deemed to refer to the court in which the petition for such
deposition was filed.
Relevant Provisions:
Section 6. Use of deposition. — If a deposition to perpetuate testimony is taken
Section 1. Interrogatories to parties; service thereof. – Under the same conditions
under this Rule, or if, although not so taken, it would be admissible in evidence, it
specified in Section 1, Rule 23, any party desiring to elicit material and relevant
may be used in any action involving the same subject matter sub-sequently brought
facts from any adverse parties shall file and serve upon the latter a written
in accordance with the provisions of sections 4 and 5 of Rule 23. interrogatories to be answered by the party served or, if the party served is a

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


Q: What happens after the filing of the petition? What should be done, is public or private corporation or a partnership or association by any officer thereof
there a need for you to furnish a notice to the adverse party competent to testify in its behalf.
A. Even if you are required to furnish a copy of your petition or notice to the party, Section 2. Answer to interrogatories. – The interrogatories shall be answered fully
upon the receipt of the court of your petition the court would still serve of that in writing and shall be signed and sworn to by the person making them. The party
petition to the adverse party by way of synonymous to service of summons attaching upon whom the interrogatories has been served shall file and serve a copy of the
therewith the verified petition. answers on the party submitting the interrogatories within fifteen (15) days after
All the rest will be the same. It can be oral testimony or written service thereof, unless the court, on motion and for good cause shown, extend or
interrogatories. shortens the time.
Q: Interrogatories to parties, what is this and when can this be availed
Depositions Pending Appeal of? What is the purpose of this?

Relevant Provision: A: Request the adverse party to admit relevant facts or material facts in connection
with the pleading. So, you can do this mode of discovery which we call as
Section 7. Depositions pending appeal. — If an appeal has been taken from a Interrogatories to parties.
judgment of a court, including the Court of Appeals in proper cases, or before the
taking of an appeal if the time therefor has not expired, the court in which the Q: Is there a need for leave of court?
judgment was rendered may allow the taking of depositions of witnesses to

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 47
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

A: It depends. It is without leave of court if answer was already served. On the other Section 5. Scope and use of interrogatories. - Interrogatories may relate to any
hand, it is with leave of court if the court has already acquired jurisdiction over the matters that can be inquired into under section 2 of Rule 23, and the answers may
person of the defendant or over the property subject matter of the case. be used for the same purposes provided in section 4 of the same Rule.
Q: If the plaintiff served interrogatories to the defendant, what should the
defendant do upon receipt of these written interrogatories? Section 6. Effect of failure to serve written interrogatories. - Unless thereafter
A: The party upon whom the interrogatories have been served shall file and serve a allowed by the court for good cause shown and to prevent a failure of justice, a
copy of the answers to the party submitting the interrogatories within 15 days after party not served with written interrogatories may not be compelled by the adverse
service of the written set of interrogatories. party to give testimony in open court, or to give a deposition pending appeal.
Q: What will you do when the plaintiff has filed written interrogatories to
the court then copy-furnished the adverse party of the same, but the
adverse party has certain objections on the availment of this mode of RULE 26
discovery. What would you do? ADMISSION BY ADVERSE PARTIES
A: He must file the objections to the court and he must do so within 10 days from
Relevant Provision:
receipt of the same so that before court will rule over, that before he will answer the
interrogatories but there is a pending objection. Section 1. Request for admission – At any time after issues have been joined, a
party may file and serve upon any other party a written request for the admission
Q: What is the effect of that?
by the latter of the genuineness of any material and relevant document described
A: The answers shall be deferred until the objections are resolved. in and exhibited with the request or of the truth of any material and relevant
TN: When the defendant filed objections to the court, the 15 day period for him to matter of fact set forth in the request. Copies of the documents shall be delivered
answer the interrogatories shall be suspended for the meantime pending resolution of with the request unless copies have already been furnished.
the court of his objections in so far as the interrogatories are concerned.
Section 2. Implied admission. - Each of the matters of which an admission is
Situation: Here is a plaintiff who wanted to be listed some material and facts in so requested shall be deemed admitted unless, within a period designated in the
far as the case is concerned to the defendant. So you served the defendant copies of request, which shall not be less than fifteen (15) days after service thereof, or
these interrogatories. Under the rules, the defendant has fifteen days to answer the within such further time as the court may allow on motion, the party to whom the
same and the fifteen day period commences after the receipt of this interrogatories request is directed files and serves upon the party requesting the admission a

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


but in spite receipt of this interrogatories fifteen days have already lapsed but the sworn statement either denying specifically the matters of which an admission is
defendant did not file his answer, under the given circumstance, what can be the requested or setting forth in detail the reasons why he cannot truthfully either
appropriate remedy of the plaintiff who actually caused the filling of this written admit or deny those matters.
interrogatories under the rules? Objections to any request for admission shall be submitted to the court by
ANS: File a motion to declare a defendant in default. Non-answer of the defendant the party requested within the period for and prior to the filing of his sworn
within 15 days, a judgment by default may be rendered against a party who fails to statement as contemplated in the preceding paragraph and his compliance
serve his answer to written interrogatories (Cason vs San Pedro) therewith shall be deferred until such objections are resolved, which resolution
shall be made as early as practicable.
Section 3. Effect of admission. - Any admission made by a party pursuant to such
Relevant Provision:
request is for the purpose of the pending action only and shall not constitute an
Section 4. Number of interrogatories. – No party may, without leave of court, serve admission by him for any other purpose nor may the same be used against him in
more than one set of interrogatories to be answered by the same party. any other proceeding.
Q: Can the defendant or the plaintiff as the case maybe serve more than
one set of written interrogatories?
ANS: Yes, but it must be with leave of court.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 48
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Section 4. Withdrawal. - The court may allow the party making an admission under TN: Unfortunately the party was not able to submit a pleading specifically denying
this Rule, whether express or implied, to withdraw or amend it upon such terms as under oath the admission or partly admitting some. Under the rules these are
may be just. deemed admitted and it is very detrimental to the interest of the party.
Section 5. Effect of failure to file and serve request for admission. - Unless otherwise Q: What would be the best remedy for that party?
allowed by the court for good cause shown and to prevent a failure of justice, a party A: File a motion to be relieved of the consequences of failure to specifically deny
who fails to file and serve a request for admission on the adverse party of material the admission under oath.
and relevant facts at issue which are, or ought to be, within the personal knowledge
Q: What are certain limitations when one request for admission?
of the latter, shall not be permitted to present evidence on such facts.
A: See to it that it does not include those that were already denied by the
Q: What is admission by the adverse party? defendant in his answer.
A: If you want to request the admission by the adverse party of the genuineness of
any material or relevant documents or admit the truth of any material and relevant RULE 27
matter of fact set forth in the request.. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
Example: There are several documents which are part of the exhibits of the plaintiff,
he wants that the defendant, to dispense with further trial, to admit the genuineness Relevant Provision:
of these particular documents. If these are admitted then you no longer need to Section 1. Motion for production or inspection; order. - Upon motion of any party
prove this in court because the genuineness of these documents was already showing good cause therefor, the court in which an action is pending may (a)
admitted by the adverse party so that is the advantage. order any party to produce and permit the inspection and copying or
Q: When can you file this mode of discovery? photographing, by or on behalf of the moving party, of any designated documents,
A: After the issues have been joined. papers, books, accounts, letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence material to any matter involved in
TN: The rule is clear that you can avail of this mode of discovery of admission of the the action and which are in his possession, custody or control; or (b) order any
adverse party after the issues have been joined. party to permit entry upon designated land or other property in his possession or
Issues of the case are already joined before pre-trial, after the submission of control for the purpose of inspecting, measuring, surveying, or photographing the
the last pleading. Meaning to say upon the submission of an answer of the defendant property or any designated relevant object or operation thereon. The order shall
the issues are already joined hence the case is ready for pre-trial. specify the time, place and manner of making the inspection and taking copies and

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


photographs, and may prescribe such terms and conditions as are just.
Q: The plaintiff by himself availed of this mode of discovery; he made a Situation: This is a case for recovery of ownership and possession of a
document related to that. He served this document to the counsel of the real property, the property is in the possession of the defendant. You
defendant. Is it right? Did it comply with the requirement of Rule 26? want to know the extent of that property. What will you do?
A: No. Among all other modes of discovery, this is the only mode where it is served A: Avail of the mode of discovery which is the motion for the production or
not to the counsel but it is served to the party otherwise it will not comply with Rule inspection of documents.
26. TN: It applies to all documents except those which are privileged in nature.
Q: If the adverse party receives this, what should he do? TN: In filing this motion, you have to show that there is good cause for availment
A: He can file an objection to the court. of this mode of discovery.
Q: Presume that the objections were overruled, what should the other Q: What is the basis of the courts in determining whether good cause?
party do on this request for admission of the adverse party? A: The court is guided by the principle of practicability and reasonableness.
A: He can specifically deny or admit the same within the period specified on the Q: Will this include the body of a dead person?
request which should be less than 15 days.
A: Yes, because the body of a dead person is no longer a person but it is already a
Q: No answer was filed for the request for admission, what is the effect? thing. Motion for the exhumation of a dead body is covered by this mode of
A: All requests for admission made by the party is actually deemed admitted. discovery.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 49
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

or may thereafter examine him in respect of the same mental or physical


RULE 28 examination.
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
Q: After the conduct of the examination what will happen?
Relevant Provisions: A: The person who caused the examination shall serve a copy to the adverse
Section 1. When examination may be ordered. – In an action which the mental or party.
physical condition of a party is in controversy, the court in which the action is Q: Can the person who was examined also ask for a copy of the results?
pending may in its discretion order him to submit to physical and mental examination A: Yes
by a physician.
Q: What about if the one who conducted the examination refuses to give
Section 2. Order of examination. – The order for examination may be made only on him a copy, what are the consequences?
motion for good cause shown upon notice to the party to be examined and to all
A: The findings of the examination will not be used as evidence.
other parties, and shall specify the time, place, manner, conditions and scope of the
examination and the person or persons by whom it is to be made. Q: Can the person who conducted the examination request for a copy of
previous examinations?
Situation: You filed a case for a petition for guardianship on a person who is
ANS: Yes
allegedly insane. You want to become his guardian over his person and property
because the insane person has plenty of properties. So you filed a petition for Q: What if the person examined refuses to give him a copy?
guardianship before the family court. You want that your petition would be very A: The court will compel him to provide a copy thereof
strong that at the end of the day it will be granted by the court. What will you do? Q: What if the person examined refuses to furnish a copy of previous
A: File a motion for the mental and physical examination of persons. examinations to the person who caused for the examination?
Q: What are certain instances where this can be availed of? A: The court can also compel him to furnish said copy
A: In cases of physical injuries. RECAP:
Q: What is done here when you avail of the mode of discovery which is the Situation: You are filing a case for breach of contract against Juan De La Cruz,
physical or mental examination of persons? and you filed that in court today. Summons was served but no answer yet, one of
A: The court will issue an order specifying the date, time and place of the your witnesses was leaving for the US with no definite date of return. What will
examination including the physician who would conduct the examination on that you do?

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person involved in the motion. A: File a motion for leave of court to take the deposition of that witness.
Leave of court because you just acquired the jurisdiction of the person of
Relevant Provisions: the defendant.
Section 3. Report of findings. – If requested by the party examined, the party Q: You want to file a case for breach of contract one of these witnesses is
causing the examination to be made shall deliver to him a copy of a detailed written leaving for abroad, what will you do?
report of the examining physician setting out his findings and conclusions. After such A: Avail of Rule 24, file a deposition before the court.
request and delivery, the party causing the examination to be made shall be entitled Q: You want to file a case for annulment of contract on the ground of
upon request to receive from the party examined a like report, the court on motion vitiated consent, according to you, the person you are representing was
and notice may make an order requiring delivery on such terms as are just, and if a insane at the time when he signed the contract. You want your case to
physician fails or refuses to make such a report the court may exclude his testimony be based on solid grounds. What will you do?
if offered at the trial.
A: File a motion for the mental examination of that person.
Section 4. Waiver of privilege. - By requesting and obtaining a report of the
examination so ordered or by taking the deposition of the examiner, the party
examined waives any privilege he may have in that action or any other involving the
same controversy, regarding the testimony of every other person who has examined

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

(b) An order refusing to allow the disobedient party to support or oppose


RULE 29 designated claims or defenses or prohibiting him from introducing in evidence
REFUSAL TO COMPLY WITH MODES OF DISCOVERY designated documents or things or items of testimony, or from introducing
evidence of physical or mental condition;
Relevant Provisions:
(c) An order striking out pleadings or parts thereof, or staying further
Section 1. Refusal to answer. - If a party or other deponent refuses to answer any proceedings until the order is obeyed, or dismissing the action or proceeding
question upon oral examination, the examination may be completed on other matters or any part thereof, or rendering a judgment by default against the
or adjourned as the proponent of the question may prefer. The proponent may disobedient party; and
thereafter apply to the proper court of the place where the deposition is being taken,
(d) In lieu of any of the foregoing orders or in addition thereto, an order
for an order to compel an answer. The same procedure may be availed of when a
directing the arrest of any party or agent of a party for disobeying any of such
party or a witness refuses to answer any interrogatory submitted under Rules 23 or
orders except an order to submit to a physical or mental examination.
25.
If the application is granted, the court shall require the refusing party or
deponent to answer the question or interrogatory and if it also finds that the refusal Section 4. Expenses on refusal to admit. - If a party after being served with a
to answer was without substantial justification, it may require the refusing party or request under Rule 26 to admit the genuineness of any document or the truth of
deponent or the counsel advising the refusal, or both of them, to pay the proponent any matter of fact, serves a sworn denial thereof and if the party requesting the
the amount of the reasonable expenses incurred in obtaining the order, including admissions thereafter proves the genuineness of such document or the truth of
attorney’s fees. any such matter of fact, he may apply to the court for an order requiring the other
party to pay him the reasonable expenses incurred in making such proof, including
If the application is denied and the court finds that it was filed without
attorney’s fees. Unless the court finds that there were good reasons for the denial
substantial justification, the court may require the proponent or the counsel advising
or that admissions sought were of no substantial importance, such order shall be
the filing of the application, or both of them, to pay to the refusing party or deponent
issued.
the amount of the reasonable expenses incurred in opposing the application,
including attorney’s fees.
Section 5. Failure of party to attend or serve answers. - If a party or an officer or
managing agent of a party wilfully fails to appear before the officer who is to take
Section 2. Contempt of court. - If a party or other witness refuses to be sworn or
his deposition, after being served with a proper notice, or fails to serve answers to
refuses to answer any question after being directed to do so by the court of the place
interrogatories submitted under Rule 25 after proper service of such

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in which the deposition is being taken, the refusal may be considered a contempt of
interrogatories, the court on motion and notice, may strike out all or any part of
that court.
any pleading of that party, or dismiss the action or proceeding or any part thereof,
or enter a judgment by default against that party, and in its discretion, order him
Section 3. Other consequences. - If any party or an officer or managing agent of a to pay reasonable expenses incurred by the other, including attorney’s fees.
party refuses to obey an order made under section 1 of this Rule requiring him to
answer designated questions, or an order under Rule 27 to produce any document or
Section 6. Expenses against the Republic of the Philippines. - Expenses and
other thing for inspection, copying, or photographing or to permit it to be done, or to
attorney’s fees are not to be imposed upon the Republic of the Philippines under
permit entry upon land or other property, or an order made under Rule 28 requiring
this Rule.
him to submit to a physical or mental examination, the court may make such orders
in regard to the refusal as are just, and among others the following: TN: There are several consequences for failure to comply with any of the modes of
(a) An order that the matters regarding which the questions were asked, or the discoveries under Rule 23-28, most common legal consequence is contempt. If you
character or description of the thing or land, or the contents of the paper, or the are declared in contempt, the penalty can either be imprisonment and/or fine. But
physical or mental condition of the party, or any other designated facts shall be for Motion for the physical and mental examination, imprisonment is not applicable.
taken to be established for the purposes of the action in accordance with the
claim of the party obtaining the order; Rule 23-25 – file a motion to compel that person to comply with the mode of
discovery

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Example: Deposition – file a motion for the issuance of an order compelling (c) The third-party defendant, if any, shall adduce evidence of his defense,
to take his deposition, if will not comply, can be declared in contempt counterclaim, cross-claim and fourth-party complaint;
Interrogatories to parties (d) The fourth-party, and so forth, if any, shall adduce evidence of the
- defendant’s failure to comply – he can be declared in default and the court can material facts pleaded by them;
render judgment by default (e) The parties against whom any counterclaim or cross-claim has been
- plaintiff’s failure to comply – a ground for the dismissal of the complaint pleaded, shall adduce evidence in support of their defense, in the order to be
prescribed by the court;
RULE 30 (f) The parties may then respectively adduce rebutting evidence only, unless
TRIAL the court, for good reasons and in the furtherance of justice, permits them to
adduce evidence upon their original case; and
Relevant Provisions: (g) Upon admission of the evidence, the case shall be deemed submitted for
Section 1. Notice of trial. - Upon entry of a case in the trial calendar, the clerk shall decision, unless the court directs the parties to argue or to submit their
notify the parties of the date of its trial in such manner as shall ensure his receipt of respective memoranda or any further pleadings.
that notice at least five (5) days before such date. If several defendants or third-party defendants, and so forth, having
separate defenses appear by different counsel, the court shall determine the
Section 2. Adjournments and postponements. - A court may adjourn a trial from day relative order of presentation of their evidence.
to day, and to any stated time, as the expeditious and convenient transaction of
business may require, but shall have no power to adjourn a trial for a longer period Section 7. Statement of judge. - During the hearing or trial of a case any
than one month for each adjournment, nor more than three months in all, except statement made by the judge with reference to the case, or to any of the parties,
when authorized in writing by the Court Administrator, Supreme Court. witnesses or counsel, shall be made of record in the stenographic notes.

Section 3. Requisites of motion to postpone trial for absence of evidence. - A motion Section 8. Suspension of actions. - The suspension of actions shall be governed
to postpone a trial on the ground of absence of evidence can be granted only upon by the provisions of the Civil Code.
affidavit showing the materiality or relevancy of such evidence, and that due diligence
has been used to procure it. But if the adverse party admits the facts to be given in TN: After the defendant rests its case, there can be presentation of rebuttal
evidence and sub rebuttal. After the presentation of the sub rebuttal witness (on

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evidence, even if he objects or reserves the right to their admissibility, the trial shall
not be postponed. the part of the defendant), the case is deemed submitted for decision not unless
the court requests the counsels to have oral arguments or submission of their
respective memorandum (within 30 days). After the oral argument or submission
Section 4. Requisites of motion to postpone trial for illness of party or counsel. - A of memoranda, the case is deemed submitted for decision.
motion to postpone a trial on the ground of illness of a party or counsel may be
granted if it appears upon affidavit or sworn certification that the presence of such
party or counsel at the trial is indispensable and that the character of his illness is Relevant Provision:
such as to render his non-attendance excusable. Section 6. Agreed statement of facts. - The parties to any action may agree, in
writing, upon the facts involved in the litigation, and submit the case for judgment
Section 5. Order of trial. - Subject to the provisions of section 2 of Rule 31, and on the facts agreed upon, without the introduction of evidence.
unless the court for special reasons otherwise directs, the trial shall be limited to the If the parties agree only on some of the facts in issue, the trial shall be
issues stated in the pre-trial order and shall proceed as follows: held as to the disputed facts in such order as the court shall prescribe.
(a) The plaintiff shall adduce evidence in support of his complaint; TN: In pretrial conference, one of the matters to be taken is the stipulation of
(b) The defendant shall then adduce evidence in support of his defense, facts. If the parties can agree in all the proposed stipulations, and the only issue
counterclaim, cross-claim and third-party complaint; left is the legal issue, the court can render judgment thereafter.

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Relevant Provision: TN: It is for the purposes of convenience. Cannot be consolidated if filed not
within the same jurisdiction (RTC and MTC), it must be with the courts with the
Section 9. Judge to receive evidence; delegation to clerk of court. - The judge of
same jurisdiction.
the court where the case is pending shall personally receive the evidence to be
adduced by the parties. However, in default or ex parte hearings, and in any case Example: One case file in Branch 6 and the other was filed in Branch 8, it goes to
where the parties agree in writing, the court may delegate the reception of evidence the case with the lower number (the case which have been filed earlier in the
to its clerk of court who is a member of the bar. The clerk of court shall have no raffle). Civil Case No. 336 and Civil Case No. 337, 337 must be consolidated with
power to rule on objections to any question or to the admission of exhibits, which 337.
objections shall be resolved by the court upon submission of his report and the Q: Where will you file the consolidation?
transcripts within ten (10) days from termination of the hearing. A: File the motion in the court of higher number (337 in the example). If they will
General rule: The presentation of evidence must always be heard and received by grant it, they will just refer the records of the case to the court with the lower
the court personally. number.
Exceptions: ex-party hearings, the defendant was declared in default
RULE 32
In such cases, the court will delegate reception of evidence ex parte to the
TRIAL BY COMMISSIONER
clerk of court as long as such is a lawyer. The clerk of court is not allowed to rule on
the objections raised during the presentation of evidence but include it in the minutes
Relevant Provisions:
of the records which shall be submitted within 10 days from the termination thereof
because the court will be the one to rule on the objections raised. Section 1. Reference by consent. - By written consent of both parties, the court
may order any or all of the issues in a case to be referred to a commissioner to be
RULE 31 agreed upon by the parties or to be appointed by the court. As used in these
CONSOLIDATION OR SEVERANCE Rules, the word "commissioner" includes a referee, an auditor and an examiner.

Relevant Provisions: Section 2. Reference ordered on motion. - When the parties do not consent, the
court may, upon the application of either or of its own motion, direct a reference to
Section 1. Consolidation. - When actions involving a common question of law or fact
a commissioner in the following cases:
are pending before the court, it may order a joint hearing or trial of any or all the
(a) When the trial of an issue of fact requires the examination of a long
matters in issue in the actions; it may order all the actions consolidated; and it may

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account on either side, in which case the commissioner may be directed to
make such orders concerning proceedings therein as may tend to avoid unnecessary hear and report upon the whole issue or any specific question involved
costs or delay. therein;
(b) When the taking of an account is necessary for the information of the
Section 2. Separate trials. - The court, in furtherance of convenience or to avoid court before judgment, or for carrying a judgment or order into effect;
prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third- (c) When a question of fact, other than upon the pleadings, arises upon
party complaint, or of any separate issue or of any number of claims, cross-claims, motion or otherwise, in any stage of a case, or for carrying a judgment or
counterclaims, third-party complaints or issues. order into effect.
Example: In B.P. 22, there are 10 counts involving the same parties and filed with
the same court, these will be consolidated and will be tried simultaneously.
Section 3. Order of reference; powers of the commissioner. - When a reference
Q: What if the one was filed with another branch then another case was is made, the clerk shall forthwith furnish the commissioner with a copy of the order
filed with another branch. There are cases filed with the same parties in of reference. The order may specify or limit the powers of the commissioner, and
different branches in the same city, can those be consolidated? may direct him to report only upon particular issues, or to do or perform particular
A: File a motion for consolidation of those cases acts, or to receive and report evidence only, and may fix the date for beginning
and closing the hearings and for the filing of his report. Subject to the
specifications and limitations stated in the order, the commissioner has and shall

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

exercise the power to regulate the proceedings in every hearing before him and to do findings and conclusions therein set forth, shall not be considered by the court
all acts and take all measures necessary or proper for the efficient performance of his unless they were made before the commissioner.
duties under the order. He may issue subpoenas and subpoenas duces tecum, swear
witnesses, and unless otherwise provided in the order of reference, he may rule upon Section 11. Hearing upon report. - Upon the expiration of the period of ten (l0)
the admissibility of evidence. The trial or hearing before him shall proceed in all days referred to in the preceding section, the report shall be set for hearing, after
respects as it would if held before the court. which the court shall issue an order adopting, modifying, or rejecting the report in
whole or in part, or recommitting it with instructions, or requiring the parties to
Section 4. Oath of commissioner. - Before entering upon his duties the present further evidence before the commissioner or the court.
commissioner shall be sworn to a faithful and honest performance thereof.
Section 12. Stipulations as to findings. - When the parties stipulate that a
Section 5. Proceedings before commissioner. - Upon receipt of the order of commissioner’s findings of fact shall be final, only questions of law shall thereafter
reference and unless otherwise provided therein, the commissioner shall forthwith set be considered.
a time and place for the first meeting of the parties or their counsel to be held within
ten (l0) days after the date of the order of reference and shall notify the parties or Section 13. Compensation of commissioner. - The court shall allow the
their counsel. commissioner such reasonable compensation as the circumstances of the case
warrant, to be taxed as costs against the defeated party, or apportioned, as justice
Section 6. Failure of parties to appear before commissioner. - If a party fails to requires.
appear at the time and place appointed, the commissioner may proceed ex parte or,
Example: The case involves an action for damages arising out of numerous
in his discretion, adjourn the proceedings to a future day, giving notice to the absent
documents which require an opinion of an auditor or an examiner, file a motion
party or his counsel of the adjournment.
that trial be made before a commissioner who should be appointed by the court.

Section 7. Refusal of witness. - The refusal of a witness to obey a subpoena issued


by the commissioner or to give evidence before him shall be deemed a contempt of General rule: Any case for that matter can be referred to a commissioner if the
the court which appointed the commissioner. parties agree.
Exemption: Even if the parties will not agree, the court will refer the case to a
Section 8. Commissioner shall avoid delays. - It is the duty of the commissioner to commissioner if it will fall in any of the circumstance under Section 2.

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


proceed with all reasonable diligence. Either party, on notice to the parties and 1. When the trial of an issue of fact requires the examination of a long
commissioner, may apply to the court for an order requiring the commissioner to account on either side, in which case the commissioner may be directed
expedite the proceedings and to make his report. to hear and report upon the whole issue or any specific question involved
therein;
Section 9. Report of commissioner. - Upon the completion of the trial or hearing or 2. When the taking of an account is necessary for the information of the
proceeding before the commissioner, he shall file with the court his report in writing court before judgment, or for carrying a judgment or order into effect;
upon the matters submitted to him by the order of reference. When his powers are 3. When a question of fact, other than upon the pleadings, arises upon
not specified or limited, he shall set forth his findings of fact and conclusions of law in motion or otherwise, in any stage of a case, or for carrying a judgment or
his report. He shall attach thereto all exhibits, affidavits, depositions, papers and the order into effect.
transcript, if any, of the testimonial evidence presented before him.
TN: Unlike the clerk of court, the commissioner can rule on the objections raised,
Section 10. Notice to parties of the filing of report. - Upon the filing of the report, he can conduct hearing, can issue subpoena like subpoena duces tecum for some
the parties shall be notified by the clerk, and they shall be allowed ten (l0) days documents to be brought before him. After determination thereof, he must submit
within which to signify grounds of objections to the findings of the report, if they so his report to the court. Upon the submission of the report by the commissioner, the
desire. Objections to the report based upon grounds which were available to the clerk of court should issue an order to the lawyers to submit the respective
parties during the proceedings before the commissioner, other than objections to the comments on the report of the commissioner within 10 days. Upon submission of

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 54
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

the comments, the report will be heard by the court. Its either the court will approve present your evidences if the appellate court will reverse the decision of the trial
the report, approve part and reject others, or reject it or recommit again the report to court.
the commissioner for the submission of another report.
Example: Recovery of possession with damages and the problem is the boundaries. RULE 34
JUDGMENT ON THE PLEADINGS
- You can ask for the conduct of a relocation survey. Of course, a surveyor
must be appointed to conduct the relocation survey. Such surveyor can be appointed
Section 1. Judgment on the pleadings. - Where an answer fails to tender an issue,
by the court as a commissioner.
or otherwise admits the material allegations of the adverse party’s pleading, the
court may, on motion of that party, direct judgment on such pleading. However, in
RULE 33 actions for declaration of nullity or annulment of marriage or for legal separation,
DEMURRER TO EVIDENCE the material facts alleged in the complaint shall always be proved.
TN: In judgment it says, the answer failed to tender an issue then in summary
Relevant Provision: judgments, no genuine issue. It means an issue which does not call for the
presentation of evidence.
Section 1. Demurrer to evidence. - After the plaintiff has completed the presentation
of his evidence, the defendant may move for dismissal on the ground that upon the Example: The plaintiff filed a complaint for the collection of sum of money,
facts and the law the plaintiff has shown no right to relief. If his motion is denied, he summons was served to the defendant. The defendant filed an answer admitting
shall have the right to present evidence. If the motion is granted but on appeal the all the allegations in the complaint. The plaintiff can file a motion for judgment on
order of dismissal is reversed he shall be deemed to have waived the right to present the pleadings. However, even if there are admissions but some are denied or there
evidence. are admissions but it still needs to be tried by the court because it requires
presentation of evidence, definitely, summary judgment and judgment on the
TN: In criminal procedure, after the prosecution rests its case then you found out pleadings will not be proper.
that the evidences of the prosecution are insufficient to sustain a conviction, you
Even if the material allegations in the complaint are deemed admitted, but
have 5 non-extendible days to file a motion for leave to file demurrer to evidence.
the admission does not involve immaterial or irrelevant issues in the pleading, not
Although under the Continuous Trial, you can already orally move to file demurrer to
even damages, the court can not just award damages even if there are admissions
evidence. If your motion for leave is granted, you have 10 days to submit the
unless there is proof presented by the plaintiff insofar as the damages are
demurrer to evidence.
concerned. Therefore, it is not automatic that even if there are admissions, the

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


TN: In Civil Procedure, the law says that after presentation of the evidence of the court can already award damages.
plaintiff. It presupposes that the plaintiff should have rests his case already. If the
defendant finds out that the evidences presented by the plaintiff show that he has no Grounds for Judgment on the Pleadings
right of relief, then the defendant can file demurrer to evidence. ;
There is no mention in the rules if there is a need for a motion for leave or 1. The answer of the defendant failed to tender an issue
no. Also, the difference of the rule in civil cases as to that of criminal cases is that 2. Admission by the defendant of the material allegations in the complaint
there is no period when to file it. Therefore, you can file it anytime without the need
to file a motion for leave. File directly the demurrer to evidence. Cases where judgment on the pleadings is not allowed:
If the demurrer to evidence is granted by the trial court, the case is 1. Annulment of marriage
dismissed and it will constitute as a final judgment which can be appealed within 15 2. Declaration on the nullity of marriage
days from receipt thereof. If denied, he is allowed to present his evidence. If on 3. Legal separation
appeal, the appellate court reversed the order of dismissal of the trial court, the
TN: The material allegations in the complaint must always be proved. If the
defendant loses his right to present evidence. In fact, the appellate court can already
defendant simply admitted the allegations, that would not be a ground. In fact, it is
render its decision based on the evidences of the plaintiff and it will no longer need to
provided in the rules that the prosecutor must conduct an investigation if there is
return or remand the case to the trial court. That’s why, you should be very careful
collusion between the parties.
that when you really have a ground for the demurrer because even if it will be
granted by the trial court, the plaintiff can always appeal and you lose the right to

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Relevant Provision:
RULE 35
SUMMARY JUDGMENTS Section 3. Motion and proceedings thereon. - The motion shall be served at least
ten (10) days before the time specified for the hearing. The adverse party may
Relevant Provisions: serve opposing affidavits, depositions, or admissions at least three (3) days before
the hearing. After the hearing, the judgment sought shall be rendered forthwith if
Section 1. Summary judgment for claimant. - A party seeking to recover upon a the pleadings, supporting affidavits, depositions, and admissions on file, show that,
claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time except as to the amount of damages, there is no genuine issue as to any material
after the pleading in answer thereto has been served, move with supporting fact and that the moving party is entitled to a judgment as a matter of law.
affidavits, depositions or admissions for a summary judgment in his favor upon all or TN: As a general rule in filing motion, you must see to it that you serve a copy to
any part thereof. the adverse party in a manner that he should receive it for at least 3 days (3-day
notice rule) before the scheduled hearing. If you set the date for the hearing, it
must not be not later than 10 days from the filing thereof.
Section 2. Summary judgment for defending party. - A party against whom a claim,
But in summary judgment, it does not comply with the 3-day notice rule.
counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any
The motion shall be served to the adverse party at least 10 days before the
time, move with supporting affidavits, depositions or admissions for a summary schedule hearing.
judgment in his favor as to all or any part thereof.

Relevant Provision:
Section 4. Case not fully adjudicated on motion. - If on motion under this Rule,
Section 5. Form of affidavits and supporting papers. - Supporting and opposing
judgment is not rendered upon the whole case or for all the reliefs sought and a
affidavits shall be made on personal knowledge, shall set forth such facts as would be
trial is necessary, the court at the hearing of the motion, by examining the
admissible in evidence, and shall show affirmatively that the affiant is competent to
pleadings and the evidence before it and by interrogating counsel shall ascertain
testify to the matters stated therein. Certified true copies of all papers or parts
what material facts exist without substantial controversy and what are actually and
thereof referred to in the affidavit shall be attached thereto or served therewith.
in good faith controverted. It shall thereupon make an order specifying the facts
that appear without substantial controversy, including the extent to which the

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


Section 6. Affidavits in bad faith. - Should it appear to its satisfaction at any time
amount of damages or other relief is not in controversy, and directing such further
that any of the affidavits presented pursuant to this Rule are presented in bad faith,
or solely for the purpose of delay, the court shall forthwith order the offending party proceedings in the action as are just. The facts so specified shall be deemed
or counsel to pay to the other party the amount of the reasonable expenses which established, and the trial shall be conducted on the controverted facts accordingly.
the filing of the affidavits caused him to incur, including attorney’s fees. It may, after Yes, if it is not fully adjudicated in the motion.
hearing, further adjudge the offending party or counsel guilty of contempt.
Q: Can there be an instance where you can file a motion for judgment on
TN: In summary judgment, the answer of the plaintiff likewise failed to tender a the pleadings or summary judgment insofar as only a part of the
genuine issue. In judgment on the pleadings, you simply file a motion and state that complaint is concerned?
this is the answer and the perusal of the answer shows that it does not tender an
A: Yes. You are allowed to have several causes of action. If the answer of the
issue or the defendant already admitted material allegations in the complaint. You
defendant only admitted allegations in the first cause of action, then you can still
just file the motion with the pleadings. In summary judgments, when you file a
file a motion for judgment of pleadings or summary judgment insofar as the first
motion, you also need to attach affidavits, depositions or admissions for summary
cause of action is concerned. Meaning, it is only partial and the case is not fully
judgment.
adjudicated on a motion because some causes of action joined in the complaint
require presentation of evidence.
Summary judgment is only available if the case is to recover money (debt) or
liquidated damages since the rule mentions of a claim. It is a case of a declaratory
relief. It will not be availed of in other cases.

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

TN: Rendition of judgment is when the judge gives a signed decision to the clerk
RULE 36 of court.
JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF We do not base the finality of the decision in a civil case whether or not
there is no appeal after the lapse of the 15 or 30 day period. The rules require that
Relevant Provisions:
the decision must be entered into the civil case docket of the court. The judgment
Section 1. Rendition of judgments and final orders. - A judgment or final order becomes final upon the time of its entry. You file a motion to the court for the
determining the merits of the case shall be in writing personally and directly prepared entry of judgment.
by the judge, stating clearly and distinctly the facts and the law on which it is based,
you noticed that there is no appeal yet, you can not just automatically file
signed by him, and filed with the clerk of the court.
a motion for execution. You still have to wait until the court has already issued an
entry of judgment.
Section 2. Entry of judgments and final orders. - If no appeal or motion for new trial
or reconsideration is filed within the time provided in these Rules, the judgment or Kinds of Judgments
final order shall forthwith be entered by the clerk in the book of entries of judgments. ;
The date of finality of the judgment or final order shall be deemed to be the date of a. Judgment by default (Sec. 3, Rule 9);
its entry. The record shall contain the dispositive part of the judgment or final order b. Judgment on the pleadings (Rule 34);
and shall be signed by the clerk, with a certificate that such judgment or final order
c. Summary judgment (Rule 35);
has become final and executory.
d. Several judgment (Sec. 4, Rule 36);
Section 3. Judgment for or against one or more of several parties. - Judgment may e. Separate judgment (Sec. 5, Rule 36);
be given for or against one or more of several plaintiffs, and for or against one or f. Judgment for specific acts (Sec. 10, Rule 39);
more of several defendants. When justice so demands, the court may require the g. Special judgment (Sec. 11, Rule 39);
parties on each side to file adversary pleadings as between themselves and
determine their ultimate rights and obligations. h. Judgment upon confession;
i. Judgment upon compromise, or on consent or
Section 4. Several judgments. - In an action against several defendants, the court agreement;
may, when a several judgment is proper, render judgment against one or more of j . "Clarificatory" judgment; and

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them, leaving the action to proceed against the others.
k. Judgment nunc pro tunc. (now by then)
– it is to record a judgment rendered before by the court but
Section 5. Separate judgments. - When more than one claim for relief is presented
unfortunately it was not recorded.. Judgments that were not entered in
in an action, the court, at any stage, upon a determination of the issues material to a
the court docket
particular claim and all counterclaims arising out of the transaction or occurrence
which is the subject matter of the claim, may render a separate judgment disposing
of such claim. The judgment shall terminate the action with respect to the claim so TN: If there is a conflict between the body of the decision and the dispositive
disposed of and the action shall proceed as to the remaining claims. In case a portion, the dispositive portion will prevail. Although, if there are doubts in the
separate judgment is rendered, the court by order may stay its enforcement until the dispositive portion, you can refer this to the body.
rendition of a subsequent judgment or judgments and may prescribe such conditions
as may be necessary to secure the benefit thereof to the party in whose favor the
judgment is rendered. Q: You won in the case, but when you read the decision, you cannot
understand it because it is ambiguous, what will you do?
A: File a motion for clarificatory judgment
Section 6. Judgment against entity without juridical personality. - When judgment is
rendered against two or more persons sued as an entity without juridical personality,
the judgment shall set out their individual or proper names, if known.

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

TN: You have known already that a compromise agreement is required in cases. That Within the same period, the aggrieved party may also move for
is why we have court-annexed mediation and judicial dispute resolution. reconsideration upon the grounds that the damages awarded are excessive, that
Q: Can a counsel enter into a compromise agreement without the authority the evidence is insufficient to justify the decision or final order, or that the decision
of the client? or final order is contrary to law.
A: No. A counsel has no right to compromise a case without the authority of the
client. Section 2. Contents of motion for new trial or reconsideration and notice
thereof. - The motion shall be made in writing stating the ground or grounds
TN: If the parties have successfully arrived to a compromise agreement, you submit
therefor, a written notice of which shall be served by the movant on the adverse
a copy to the court for its approval. If approved, the court will issue a judgment by
party.
compromise agreement.
A motion for new trial shall be proved in the manner provided for proof of
motions. A motion for the cause mentioned in paragraph (a) of the preceding
Q: Is a judgment by compromise agreement appealable? section shall be supported by affidavits of merits which may be rebutted by
A: No, it is not appealable. The judgment is final and executory. affidavits. A motion for the cause mentioned in paragraph (b) shall be supported
by affidavits of the witnesses by whom such evidence is expected to be given, or
by duly authenticated documents which are proposed to be introduced in evidence.
Q: What if you are aggrieved because you were not told by your lawyer
about the legal consequences of the compromise agreement. What is your A motion for reconsideration shall point out specifically the findings or conclusions
remedy? of the judgment or final order which are not supported by the evidence or which
are contrary to law, making express reference to the testimonial or documentary
A: File a motion to set aside the compromise agreement and annul the compromise evidence or to the provisions of law alleged to be contrary to such findings or
agreement on the ground of fraud, violence, intimidation or mistake within 15 days conclusions.
from receipt of the judgment of the court approving the compromise agreement.
A pro forma motion for new trial or reconsideration shall not toll the
reglementary period of appeal.
Q: The court denied your motion, what is your remedy?
A: File an appeal Section 3. Action upon motion for new trial or reconsideration. - The trial court
Several judgment – it is a case where there are several defendants. You can render may set aside the judgment or final order and grant a new trial, upon such terms
as may be just, or may deny the motion. If the court finds that excessive damages

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judgment with one and leaving the others for trial.
have been awarded or that the judgment or final order is contrary to the evidence
or law, it may amend such judgment or final order accordingly.
RULE 37
NEW TRIAL OR RECONSIDERATION
Section 4. Resolution of motion. - A motion for new trial or reconsideration shall
Relevant Provisions: be resolved within thirty (30) days from the time it is submitted for resolution.
Section 1. Grounds of and period for filing motion for new trial or reconsideration. -
Within the period for taking an appeal, the aggrieved party may move the trial court Section 5. Second motion for new trial. - A motion for new trial shall include all
to set aside the judgment or final order and grant a new trial for one or more of the grounds then available and those not so included shall be deemed waived. A
following causes materially affecting the substantial rights of said party: second motion for new trial, based on a ground not existing nor available when the
(a) Fraud, accident, mistake or excusable negligence which ordinary prudence first motion was made, may be filed within the time herein provided excluding the
could not have guarded against and by reason of which such aggrieved party has time during which the first motion had been pending.
probably been impaired in his rights; or No party shall be allowed a second motion for reconsideration of a
(b) Newly discovered evidence, which he could not, with reasonable diligence, judgment or final order.
have discovered and produced at the trial, and which if presented would
probably alter the result.

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Section 6. Effect of granting of motion for new trial. - If a new trial is granted in A: When the motion for reconsideration or motion for new trial simply reiterates or
accordance with the provisions of this Rule, the original judgment or final order shall repeats arguments which are already considered by the court when it rendered the
be vacated, and the action shall stand for trial de novo; but the recorded evidence decision.
taken upon the former trial, in so far as the same is material and competent to
establish the issues, shall be used at the new trial without retaking the same.
TN: If the motion for new trial or reconsideration is denied, you are given a FRESH
PERIOD of 15 days (Neypes doctrine) to appeal the decision.
Section 7. Partial new trial or reconsideration. - If the grounds for a motion under
TN: Fraud as a ground for new trial must be extrinsic fraud. Extrinsic fraud is a
this Rule appear to the court to affect the issues as to only a part, or less than all of
fraud which prevented a party from fairly presenting his case to the court.
the matter in controversy, or only one, or less than all, of the parties to it, the court
may order a new trial or grant reconsideration as to such issues if severable without Example: You filed a motion for postponement because you are in the hospital
interfering with the judgment or final order upon the rest. and you were able to attach a medical certificate that you are indeed sick but the
court did not grant your motion and proceeded with trial because the judge is your
enemy. You can file a motion for new trial because of extrinsic fraud.
Section 8. Effect of order for partial new trial. - When less than all of the issues are
ordered retried, the court may either enter a judgment or final order as to the rest, or
stay the enforcement of such judgment or final order until after the new trial. Mistake as a ground must be mistake of fact and not of law. Mistake of a lawyer is
mistake of the client. However, when the mistake is so gross that it deprived the
Section 9. Remedy against order denying a motion for new trial or reconsideration. - client, it may fall as an exemption.
An order denying a motion for new trial or reconsideration is not appealable, the
remedy being an appeal from the judgment or final order. 3 requisites for a Newly Discovered Evidence
Q: When to file the motion for new trial or reconsideration? 1. Discovered after trial
A: Within the period of perfection of an appeal: 15 days or 30 days (in cases where 2. Cannot be produced and presented during trial despite reasonable
multiple appeals is allowed) from receipt of that decision (receipt of the counsel and diligence
not the receipt of the client) 3. If presented will probably alter the decision
In your motion, you attach the documentary evidence or the testimony of
Motion for New Trial the witness.

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; TN: If the motion for new trial is granted, the decision will be set aside but the
Grounds for new trial
evidences and admissions can still be used by the party against the other party.
1. Newly discovered evidence
2. Fraud, Accident, Mistake or Excusable Negligence (FAME) You can file a second motion for new trial if the ground did not exist
during the filing of the first motion.
TN: In a motion for new trial on the ground of FAME, you must attach an affidavit of Motion for Reconsideration
merit or else the motion is pro forma. You must specify the acts which constitute the
;
fraud, accident, mistake or excusable negligence. You should also include in the Grounds for motion for reconsideration
affidavit that you have good and meritorious defense. When the motion is pro forma,
1. The damages awarded by the court are excessive
it will not toll or stop the reglementary period.
2. The decision is contrary to the law applicable and/or the facts presented
Filing of the motion for new trial or motion for reconsideration will stop the to the court
reglementary period to appeal except if the motion is pro forma. The pro forma rule
A motion for reconsideration does not require an affidavit of merit.
will not apply in criminal cases and interlocutory orders.
If the motion for reconsideration is granted, the court will not render a new
decision but it will just issue an amended decision. A second motion for
Q: When does a motion considered pro forma? consideration is not allowed.

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

2. In an order for writ of execution which was denied by the court, you
RULE 38 appealed or was unable to appeal because of FAME
RELIEF FROM JUDGMENTS, ORDERS OR OTHER PROCEEDINGS
Q: Where will you file the petition for relief from judgment?
TN: This is one of the remedies which can be resorted to against final judgment. A: You file a petition for relief from judgment in the court that rendered that
judgment.
TN: When one is prevented from making an appeal or his appeal was dismissed
What are the available remedies against a final judgment?
because of (FAME) fraud, accident, mistake and excusable negligence, you can file
The following are the remedies: a petition for relief from judgement in the very same court that rendered such
1. File a petition for relief from judgment (rule 38) judgement.
2. File a petition for annulment of judgment (direct attack) on the ground of
extrinsic fraud and lack of jurisdiction
Relevant provisions:
3. Collateral attack - this is an attack which is only an incident to a main action.
But collateral attack of a judgement is only allowed if it is apparent from the Section 3. Time for filing petition; contents and verification. — A petition provided
decision of the court that indeed the court has no jurisdiction over the for in either of the preceding sections of this Rule must be verified, filed within
subject matter. sixty (60) days after the petitioner learns of the judgment, final order, or other
proceeding to be set aside, and not more than six (6) months after such judgment
Relevant Provisions: or final order was entered, or such proceeding was taken, and must be
accompanied with affidavits showing the fraud, accident, mistake, or excusable
Section 1.Petition for relief from judgment, order, or other proceedings. — When a
negligence relied upon, and the facts constituting the petitioner's good and
judgment or final order is entered, or any other proceeding is thereafter taken
substantial cause of action or defense, as the case may be.
against a party in any court through fraud, accident, mistake, or excusable
negligence, he may file a petition in such court and in the same case praying that the Section 4. Order to file an answer. — If the petition is sufficient in form and
judgment, order or proceeding be set aside. substance to justify relief, the court in which it is filed, shall issue an order
requiring the adverse parties to answer the same within fifteen (15) days from the
Section 2.Petition for relief from denial of appeal. — When a judgment or final order
receipt thereof. The order shall be served in such manner as the court may direct,
is rendered by any court in a case, and a party thereto, by fraud, accident, mistake,
together with copies of the petition and the accompanying affidavits.
or excusable negligence, has been prevented from taking an appeal, he may file a
petition in such court and in the same case praying that the appeal be given due Q: When can you file a petition for relief from judgment?

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course. A: Within sixty days (60 days) from the time the petitioner learns of the judgment,
Petition for relief from judgment can be filed on the following instances. final order, or other proceeding, and not more than six months after such
judgment or final order was entered.
1. When the judgment is final and executory
2. When the grounds are based on fraud, accident, mistake, excusable Q: When we file a petition for relief from judgment, what should we
negligence (FAME) - the same as the motion for new trial comply with?
TN: The concept of mistake which was discussed on new trial is the same concept A: This is one of the pleadings where the law requires an affidavit of merit where
also. Fraud must be extrinsic. Those are same grounds and same concepts as you have to specifically set forth FAME and that the petitioner has a good and
grounds for new trial as to grounds for relief from judgment. If a petition for relief meritorious defense. Petition must be verified together with an affidavit of merit.
from judgment is granted it is as if a second opportunity for new trial. Q: The petition complied with the period and the procedural
requirement, and the court finds out that indeed there is a ground, and
Q. What are the other proceedings which are covered by this remedy, that the petition is sufficient in form and substance. What will the court
petition for relief from judgment? issue?
1. When you are prevented from making an appeal because of FAME and A: The court shall send a notice to the respondent named therein for the
dismissal of an appeal because of FAME respondent to file his answer within 15 days.
Q: If there is no answer, can the respondent be declared in default?

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

A: No. There can be no declaration of default because even if there no answer was had never been rendered, issued or taken. The court shall then proceed to hear
filed in a petition for relief from judgment by the respondent, the court is still and determine the case as if a timely motion for a new trial or reconsideration had
mandated to hear the petition. been granted by it.
TN: The court can dismiss the petition if it did not find the petition to be sufficient in Section 7. Procedure where the denial of an appeal is set aside . — Where the
form and substance. denial of an appeal is set aside, the lower court shall be required to give due
TN: Likewise in complaint-in-intervention, even if there is no answer, the court course to the appeal and to elevate the record of the appealed case as if a timely
cannot declare the defendant in default. and proper appeal had been made.
Q. The court finds the petition sufficient in form and substance, and
already received the answer of the defendant. If there is no merit, the
court will dismiss the petition. What about if the court is convinced that
there is merit in the petition, what should be done by the court?
Relevant provision: A. The decision will be set aside and the case will stand anew and new decision is
Section 5. Preliminary injunction pending proceedings. — The court in which the rendered by the court.
petition is filed may grant such preliminary injunction as may be necessary for the
preservation of the rights of the parties, upon the filing by the petitioner of a bond in
favor of the adverse party, conditioned that if the petition is dismissed or the Q. What about if this is an appeal? Initially, the appeal was denied and
petitioner fails on the trial of the case upon its merits, he will pay the adverse party you filed a petition for relief from judgment. The court grants the
all damages and costs that may be awarded to him by reason of the issuance of such petition, what will happen?
injunction or the other proceedings following the petition, but such injunction shall A. The appeal will be given due course, and the case will be decided based on the
not operate to discharge or extinguish any lien which the adverse party may have merits of that particular appeal. This is an opportunity for a second motion for new
acquired upon, the property, of the petitioner. trial.
Q: You notice that this petition is filed within 60 days and within 6 months TN: If petition for relief from judgment or final order is granted, the former
from date of entry, usually in this particular situation, the decision is decision is set aside and vacated, so the court will now render a new decision. If
already final and executory, so there might be a possibility that the this is an appeal, a petition for relief from judgment was filed based on an appeal
winning party now will file a motion for execution of judgment. What which was initially denied by the court, if the petition is granted, it is as if a new
should be done to prevent that from being done by the court? appeal was granted and the case is now deemed submitted for decision based on

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the appeal.
A: When one files a petition for relief from judgment it must always be accompanied
with a prayer for the issuance of writ of preliminary injunction or temporary
restraining order to prevent the court from further proceeding with the case.
RULE 39
TN: When you become lawyers, see to it that there must be a prayer for the issuance
EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
of a writ of preliminary injunction or temporary restraining order. Otherwise, if there
is no writ of preliminary injunction or temporary restraining order that will never
Relevant Provisions:
prevent the court from actually further proceeding with the case.
Section 1. Execution upon judgments or final orders. — Execution shall issue as a
matter of right, or motion, upon a judgment or order that disposes of the action or
Relevant provisions: proceeding upon the expiration of the period to appeal therefrom if no appeal has
Section 6. Proceedings after answer is filed. — After the filing of the answer or the been duly perfected.
expiration of the period therefor, the court shall hear the petition and if after such If the appeal has been duly perfected and finally resolved, the execution
hearing, it finds that the allegations thereof are not true, the petition shall be may forthwith be applied for in the court of origin, on motion of the judgment
dismissed; but if it finds said allegations to be true, it shall set aside the judgment or obligee, submitting therewith certified true copies of the judgment or judgments or
final order or other proceeding complained of upon such terms as may be just. final order or orders sought to be enforced and of the entry thereof, with notice to
Thereafter the case shall stand as if such judgment, final order or other proceeding the adverse party.

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

The appellate court may, on motion in the same case, when the interest of 1. Motion for extension of time
justice so requires, direct the court of origin to issue the writ of execution. 2. Ex-parte motion for postponement
Section 6. Execution by motion or by independent action. - A final and executory 3. Motion for execution
judgment or order may be executed on motion within five (5) years from the date of TN: No need for a hearing and no need to serve a copy of the notice of hearing to
its entry. After the lapse of such time, and before it is barred by the statute of the losing party.
limitations, a judgment may be enforced by action. The revived judgment may also However, even if it is a non-litigated motion, there are times when the
be enforced by motion within five (5) years from the date of its entry and thereafter court would set the motion for hearing because it might fall on exceptional
by action before it is barred by the statute of limitations. circumstances where the court may refuse to issue and grant the motion for
execution even if the decision is final an executory.
Q: Execution is a matter of right and a matter of discretion. When is the
execution as a matter of right?
A: If the judgment is already final and executory, as a general rule, execution there What are these exceptional circumstances? (grounds where the court will not
becomes a matter of right. The next step that should be done by the winning party is grant or will deny the motion for execution)
to file a motion for the issuance of writ of execution. 1. Subsequent facts transpire which render execution unjust or impossible
2. Change in the situation of the parties which makes execution inequitable
3. Judgment novated by parties
Situation: Decision of the RTC, this was appealed to the Court of Appeals.
4. If a petition for relief from judgment and the court was able to issue a
The CA rendered a decision affirming the decision of the RTC. No motion
writ of preliminary injunction or temporary restraining order. (Execution is
for new trial or reconsideration was filed by the losing party before the
enjoined)
court of appeals. So the CA issued an entry of judgment saying that the
5. Judgment has become dormant
decision is final and executory. Can you already file a motion for execution?
6. Where judgment turns out to be incomplete or conditional
A: Yes, you can file a writ of execution. The records of the appealed case should be
returned back to the RTC.
TN: Appeal is the appropriate remedy when your motion for execution is denied.
TN: In reality, returning the records back to the RTC will take time. If the entry of But if your appeal is dismissed or you were not able to make an appeal because of
judgment is already given to you, there is no question that that decision is already FAME, your remedy is petition for relief from judgment.
final an executory. You can file a motion for execution even before the records are
returned to the RTC as long as you are already with these two documents, the

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decision and entry of judgment. If you are the winning party you just attach the copy Q: The motion for the issuance of writ of execution was granted, you are
of said documents. the losing party and you are aggrieved. You don’t want that the
execution will push through?
A: File a motion to quash the writ of execution
Relevant Provisions:
Q: Until when can you file a motion for execution?
Grounds on motion to quash a writ of execution:
A: Within 5 years from the entry of judgment. You just file a motion for the issuance
of writ of execution. 1. Improvidently issued
2. Defective substance
Q: But you failed to file a motion for issuance of writ of execution? Can you
3. Issued against wrong party
still do something?
4. Judgment already satisfied
A: Yes. The judgment can be revived within 10 years. Just file an action for the 5. Issued without authority
revival of judgment. 6. Change in the situation of the parties which render execution inequitable
TN: If you were not able to execute for more than 10 years, you have to refile anew 7. Controversy was never validly submitted to the court
the case.

Non-litigated motions:

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 62
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

2. Receivership
Discretionary Execution 3. Accounting
4. Support
Relevant provision:
TN: In these cases, even if one will appeal, the decision can be executed.
Section 2. Discretionary execution. —
In availing this remedy, you file a Motion for execution pending appeal
(a) Execution of a judgment or final order pending appeal. — On motion of the
prevailing party with notice to the adverse party filed in the trial court while it
has jurisdiction over the case and is in possession of either the original record or Q: Where will you file the motion for execution pending appeal? If a
the record on appeal, as the case may be, at the time of the filing of such notice of appeal was already rendered by the court, do you think you can
motion, said court may, in its discretion, order execution of a judgment or final file a motion for execution pending appeal with the court which rendered
order even before the expiration of the period to appeal. that decision?
After the trial court has lost jurisdiction the motion for execution pending A: Yes as long as the court has not yet lost jurisdiction and still in possession of
appeal may be filed in the appellate court. the records of the case.
Discretionary execution may only issue upon good reasons to be stated in a Q: If the court has already lost jurisdiction and the records of the case
special order after due hearing. were already transmitted to the appellate court, where will you file the
motion for execution pending appeal?
(b) Execution of several, separate or partial judgments. — A several, separate
or partial judgment may be executed under the same terms and conditions as A: File the motion for execution pending appeal with the appellate court.
execution of a judgment or final order pending appeal.
Section 3. Stay of discretionary execution. — Discretionary execution issued under Q: What is done in motions for execution pending appeal? How will you
the preceding section may be stayed upon approval by the proper court of a prove it to warrant grant of the motion?
sufficient supersedeas bond filed by the party against whom it is directed, A: There must be a good reason and such must be stated in a special order.
conditioned upon the performance of the judgment or order allowed to be executed
Q. What are these good reasons which will warrant grant of a motion for
in case it shall be finally sustained in whole or in part. The bond thus given may be
execution pending appeal?
proceeded against on motion with notice to the surety.
A: Good reasons. Such as:
Section 4. Judgments not stayed by appeal. — Judgments in actions for injunction,
receivership, accounting and support, and such other judgments as are now or may 1. Lapse of time would make the ultimate judgment ineffective

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hereafter be declared to be immediately executory, shall be enforceable after their 2. Appeal is clearly dilatory
rendition and shall not, be stayed by an appeal taken therefrom, unless otherwise 3. Where judgment is for support
ordered by the trial court. On appeal therefrom, the appellate court in its discretion 4. Article or subject of the case would deteriorate
may make an order suspending, modifying, restoring or granting the injunction, 5. Judgment debtor is in imminent danger of insolvency
receivership, accounting, or award of support. 6. Prevailing party is of advanced age
7. Case involve escrow deposits
The stay of execution shall be upon such terms as to bond or otherwise as
8. Where defendant are exhausting their income and have no other property
may be considered proper for the security or protection of the rights of the adverse
aside from the proceeds from the subdivision lots subject of the action
party.
TN: Simply put discretionary execution is termed as execution pending appeal. Q: Execution pending appeal was granted, you are the losing party or the
Execution is a matter of right if the decision is final an executory, if there is aggrieved party and you want to prevent the execution pending appeal,
an appeal, the decision is not yet final and executory, so therefore the execution is what will you do?
stayed. A: File a supersedeas bond to the court. (That is the only way to stay an execution
Q. What are some cases which judgment can be executed even if there is a pending appeal.)
pending appeal? (IRAS)
1. Injunction Relevant Provision:

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 63
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Section 5. Effect of reversal of executed judgment. - Where the executed judgment (c) If it be for the sale of real or personal property, to sell such property,
is reversed totally or partially, or annulled, on appeal or otherwise, the trial court describing it, and apply the proceeds in conformity with the judgment, the
may, on motion, issue such orders of restitution or reparation of damages as equity material parts of which shall be recited in the writ of execution;
and justice may warrant under the circumstances. (d) If it be for the delivery of the possession of real or personal property, to
Situation: The execution pending appeal was granted because the court found out deliver the possession of the same, describing it, to the party entitled thereto,
that there is a good reason which warrants the granting of the motion, but and to satisfy any costs, damages, rents, or profits covered by the judgment
unfortunately, on appeal, the decision of the court was reversed, what will happen out of the personal property of the person against whom it was rendered, and
now since judgment was already executed? if sufficient personal property cannot be found, then out of the real property;
and
A: There should be restitution or reparation.
(e) In all cases, the writ of execution shall specifically state the amount of the
Restitution – if it involves a property and can be returned;
interest, costs, damages, rents, or profits due as of the date of the issuance of
Reparation – if it involves money or a property which cannot be returned. The the writ, aside from the principal obligation under the judgment. For this
principal amount and the interest should be returned. purpose, the motion for execution shall specify the amounts of the foregoing
reliefs sought by the movant.
Relevant Provisions:
Section 7. Execution in case of death of party. - In case of the death of party, Section 9. Execution of judgments for money, how enforced.
execution may issue or be enforced in the following manner: (a) Immediate payment on demand. - The officer shall enforce an
(a) In case of the death of the judgment obligee, upon the application of his execution of a judgment for money by demanding from the judgment obligor
executor or administrator, or successor in interest; the immediate payment of the full amount stated in the writ of execution and
(b) In case of the death of the judgment obligor, against his executor or all lawful fees. The judgment obligor shall pay in cash, certified bank check
administrator or successor in interest, if the judgment be for the recovery of real payable to the judgment obligee or his authorized representative if present at
or personal property, or the enforcement of the lien thereon; the time of payment. The lawful fees shall be handed under proper receipt to
the executing sheriff who shall turn over the said amount within the same day
(c) In case of the death of the judgment obligor, after execution is actually levied
to the clerk of court of the court that issued the writ.
upon any of his property, the same may be sold for the satisfaction of the
judgment obligation, and the officer making the sale shall account to the If the judgment obligee or his authorized representative is not present to

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corresponding executor or administrator for any surplus in his hands. receive payment, the judgment obligor shall deliver the aforesaid payment to
the executing sheriff. The latter shall turn over all the amounts coming into his
possesssion within the same day to the clerk of court of the court that issued
Section 8. Issuance, form and contents of a writ of execution. - The writ of the writ, or if the same is not practicable, deposit said amount to a fiduciary
execution shall: (1) issue in the name of the Republic of the Philippines from the account in the nearest government depository bank of the Regional Trial Court
court which granted the motion; (2) state the name of the court, the case number of the locality.
and title, the dispositive part of the subject judgment or order; and (3) require the
The clerk of court shall thereafter arrange for the remittance of the
sheriff or other proper officer to whom it is directed to enforce the writ according to
deposit to the account of the court that issued the writ whose clerk of court
its terms, in the manner herein after provided:
shall then deliver said payment to the judgment obligee in satisfactionn of the
(a) If the execution be against the property of the judgment obligor, to satisfy judgment. The excess, if any, shall be delivered to the judgment obligor while
the judgment, with interest, out of the real or personal property of such the lawful fees shall be retained by the clerk of court for disposition as
judgment obligor; provided by law. In no case shall the executing sheriff demand that any
(b) If it be against real or personal property in the jands of personal payment by check be made payable to him.
representatives, heirs, devisees, legatees, tenants, or trustees of the judgment (b) Satisfaction by levy. - If the judgment obligor cannot pay all or part of
obligor, to satisfy the judgment, with interest, out of such properties; the obligation in cash, certified bank check or other mode of payment
acceptable to the judgment obligee, the officer shall levy upon the properties
of the judgment obligor of every kind and nature whatsoever which may be

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 64
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

disposed of for value and not otherwise exempt from execution giving the latter specific act in connection therewith, and the party fails to comply within the
the option to immediately choose which property or part thereof may be levied time specified, the court may direct the act to be done at the cost of the
upon, sufficient to satisfy the judgment. If the judgment obligor does not disobedient party by some other person appointed by the court and the act
exercise the option, the officer shall first levy on the personal properties, if any, when so done shall have like effect as if done by the party. If real or personla
and then on the real properties if the personal properties are insufficient to property is situated within the Philippines, the court in lieu of directing a
answer for the judgment. conveyance thereof may be an order divest the title of any party and vest it in
The sheriff shall sell only a sufficient portion of the personal or real property others, which shall have the force and effect of a conveyance executed in due
of the judgment obligor which has been levied upon. form of law.
When there is more property of the judgment obligor than is sufficient to satisfy (b) Sale of real or personal property.— If the judgment be for the sale of real
the judgment and lawful fees, he must sell only so much of the personal or real or personal property, to sell such property, describing it, and apply the
property as is sufficient to satisfy the judgment and lawful fees. proceeds in conformity with the judgment.
Real property, stocks, shares, debts, credits, and other personal property, or any (c) Delivery or restitution of real property.- The officer shall demand of the
interest in either real or persoanl property, may be levied upon in like manner person against whom the judgment for the delivery or restitution of real
and with like effect as under a writ of attachment. property is rendered and all person claiming rights under him to peaceably
vacate the property within three (3) working days, and restore possession
(c) Garnishment of debts and credits. - The officer may levy on debts due
thereof to the judgment obligee; otherwise, the officer shall oust and such
the judgment obligor and other credits, including bank deposits, financial
persons therefrom with the assistance, if necessary of appropriate peace
interests, royalties, commissions and other personal property not capable of
officers, and employing such means as may be reasonably necessary to retake
manual delivery in the possession or control of third parties. Levy shall be made
possession, and place the judgment obligee in possession of such property.
by serving notice upon the person owing such debts or having in his possession
Any costs, damages, rents or profits awarded by the judgment shall be
or control such credits to which the judgment obligor is entitled. The
satisfied in the same manner as a judgment for money.
garnishment shall cover only such amount as will satisfy the judgment and all
lawful fees. (d) Removal of improvements on property subject of execution.- When the
property subject of the execution contains improvements constructed or
The garnishee shall make a written report to the court within five (5) days
planted by the judgment obligor or his agent, the officer shall not destroy,
from service of the notice of garnishment stating whether or not the judgment
demolish or remove said improvements except upon special order of the court
obligor has sufficient funds or credits to satisfy the amount of the judgment. If
issued upon motion of the judgment obligee after due hearing and after the
not, the report shall state how much funds or credits the garnishee holds for the

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former has failed to remove the same within a reasonable time fixed by the
judgment obligor. The garnished amount in cash, or certified bank check issued
court.
in the name of the judgment obligee, shall be delivered directly to the judgment
obligee within ten (10) working days from service of notice on said garnishing (e) Delivery of personal property.- In judgments for the delivery of personal
requiring such delivery, except the lawful fees which shall be paid directly to the property, the officer shall take possession of the same and forthwith deliver it
court. to the party entitled thereto and satisfy any judgment for money as therein
provided.
In the event there are two or more garnishees holding deposits or credits
sufficient to satisfy the judgment, the judgment obligor, if available, shall have
the right to indicate the garnishee or garnishees who shall be required to deliver Section 11. Execution of special judgments. - When a judgment requires the
the amount due; otherwise, the choice shall be made by the judgment obligee. performance of any act other than those mentioned in the two preceding sections,
a certified copy of the judgment shall be attached to the writ of execution and shall
The executing sheriff shall observe the same procedure under paragraph (a) with
be served by the officer upon the party against whom the same is rendered, or
respect to delivery of payment to the judgment obligee.
upon any other person required thereby, or by law, to obey the same, and such
party or person may be punished for contempt if he disobeys such judgment.
Section 10. Execution of judgments for specific act.
(a) Conveyance, delivery of deeds, or other specific acts; vesting title. - If a Section 12. Effect of levy on execution as to third persons. - The levy on
judgment directs a party who execute a conveyance of land or personal execution shall create a lien in favor of the judgment obligee over the right, title
property, or to deliver deeds or other documents, or to perform any other

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

and interest of the judgment obligor in such property at the time of the levy, subject If the execution involves a sum of money, the judgment obligor can pay
to liens and encumbrances then existing. voluntary. If judgment obligor does not voluntarily pay, the sheriff may enforce the
execution of the judgment by giving the obligor a choice or an option as to which
Section 13. Property exempt from execution. - Except as otherwise expressly property he would give or levy to satisfy the judgment. But if judgment obligor
provided by law, the following property, and no other, shall be exempt from refuses to make a choice, the sheriff should levy the personal properties (priority is
execution: personal properties and not real properties), if after levying the personal
properties, still those were not sufficient to pay off the entire obligation based on
(a) The judgment obligor's family home as provided by law, or the homestead in
the judgment, the sheriff may now execute the real properties, as long as these
which he resides, and land necessarily used in connection therewith;
properties are not exempted from execution. Exemptions from execution: Family
(b) Ordinary tools and implements personally used by him in hs trade, home.
employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or other beasts of burden
Q: Is there a need to do something so that the house you are residing
such as the judgment obligor may select necessarily used by him in his ordinary
would be considered as family home and therefore, exempted from
occupation;
execution?
(d) His necessary clothing and articles for ordinary personal use, excluding
A: None, the place that you are residing will automatically be considered a family
jewelry;
home. In rural areas, P200,000 and in urban areas, 300,000, subject to the
(e) Household furniture and utensils necessary for housekeeping, and used for adjustment depending when there is a inflation or deflation.
that purpose by the judgment obligor and his family, such as the judgment
obligor may select, of a value not exceeding one hundred thousand pesos;
Q: Can there be an instance that a family home be the subject of an
(f) Provisions for individual or family use sufficient for four months;
execution or is not exempted from execution?
(g) The professional libraries and equipment of judges, lawyers, physicians,
A: Yes, if the family home was used as a security or collateral.
pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other
professionals, not exceeding three hundred thousand pesos in value; Example: When building your family home, you entered into a contract
of with the “savers depot” for the construction materials and you failed to
(h) One fishing boat and accessories not exceeding the total value of one
pay the construction materials for the construction of your family home
hundred thousand pesos owned by a fisherman and by the lawful use of which
- books, gravestones, etc.
he earns his livelihood;

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


- From the Civil Code, Article 155. The family home shall be exempt from
(i) So much of the salaries, wages, or earnings of the judgment obligor of his execution, forced sale or attachment except:
personal services within the four months preceding the levy as are necessary for (1) For nonpayment of taxes;
the support of his family;
(2) For debts incurred prior to the constitution of the family home;
(j) Lettered gravestones;
(3) For debts secured by mortgages on the premises before or after
(k) Monies benefits, privileges, or annuities accruing or in any manner growing such constitution; and
out of any life insurance;
(4) For debts due to laborers, mechanics, architects, builders,
(l) The right to receive legal support, or money or property obtained as such material men and others who have rendered service or furnished
support, or any pension or gratuity from the Government; material for the construction of the building.
(m) Properties specially exempt by law.
But no article or species of property mentioned in his section shall be exempt from How to execute a judgment for specific or particular act:
execution issued upon a judgment recovered for its price or upon a judgment of
Example: You are compelled to execute a deed of sale in favor of the winning
foreclosure of a mortgage thereon.
party. (You can be held in contempt for failure to obey such order.)
How to execute money judgment? Conveyance (Section 10) – execution of certain documents

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Special Judgment (Section 11) – a judgment which requires the performance of an (b) In case of other personal property, by posting a similar notice in the three
act (3) public places above-mentioned for not less than five (5) days;
(c) In case of real property, by posting for twenty (20) days in the three (3)
Difference between special judgment and conveyance in terms of public places above-mentioned a similar notice particularly describing the
execution: property and stating where the property is to be sold, and if the assessed
value of the property exceeds fifty thousand (P50,000.00) pesos, by publishing
Q: Which can be performed by a third person or party? One of the 2
a copy of the notice once a week for two (2) consecutive weeks in one
provisions provides that the court may order a third person to comply the
newspaper selected by raffle, whether in English, Filipino, or any major
judgment, while the other one should be performed by the losing party
regional language published, edited and circulated or, in the absence thereof,
himself.
having general circulation in the province or city;
A: Section 10 can be performed by a third person at the cost of the disobedient
(d) In all cases, written notice of the sale shall be given to the judgment
party, while in Section 11, which we call as a special judgment, requires that the
obligor, at least three (3) days before the sale, except as provided in
performance of an act must be done by the losing party himself. Some examples of
paragraph (a) hereof where notice shall be given at any time before the sale,
Section 10 are delivering of titles and deeds, execution of certain documents, if the
in the same manner as personal service of pleadings and other papers as
party refuses to do so, the court may compel another person to do it at the expense
provided by Section 6 of Rule 13.
of that person who failed to comply the same.
The notice shall specify the place, date and exact time of the sale which
should not be earlier than nine o’clock in the morning and not later than two
Relevant Provisions: o’clock in the afternoon. The place of the sale may be agreed upon by the parties.
Section 14. Return of writ of execution. - The writ of execution shall be returnable In the absence of such agreement, the sale of real property or personal property
to the court issuing it immediately after the judgment has been satisfied in part or in not capable of manual delivery shall be held in the office of the clerk of court of the
full. If the judgment cannot be satisfied in full within thirty (30) days after his receipt Regional Trial Court or the Municipal Trial Court which issued the writ or which was
of the writ, the officer shall report to the court and state the reason therefor. Such designated by the appellate court. In the case of personal property capable of
writ shall continue in effect during the period within which the judgment may be manual delivery, the sale shall be held in the place where the property is located.
enforced by motion. The officer shall make a report to the court every thirty (30)
days on the proceedings taken thereon until the judgment is satisfied in full, or its Section 16. Proceedings where property claimed by third person. - If the property
effectivity expires. The returns or periodic reports shall set forth the whole of the levied on is claimed by any person other than the judgment obligor or his agent,

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


proceedings taken, and shall be filed with the court and copies thereof promptly and such person makes an affidavit of his title thereto or right to the possession
furnished the parties. thereof, stating the grounds of such right or title, and serves the same upon the
The court grants the motion; writ is issued by the clerk of court and officer making the levy and a copy thereof upon the judgment obligee, the officer
implemented by the sheriff. shall not be bound to keep the property, unless such judgment obligee, on demand
It is the sheriff who executes the writ of execution. The obligation of the of the officer, files a bond approved by the court to indemnify the third-party
sheriff is to make a return within 30 days whether it was satisfied or not satisfied, but claimant in a sum not less than the value of the property levied on. In case of
it does not end there, the sheriff can continue but he will just make a periodic report disagreement as to such value, the same shall be determined by the court issuing
on whether the execution was indeed satisfied or not. the writ of execution. No claim for damages for the taking or keeping of the
property may be enforced against the bond unless the action therefor is filed within
one hundred twenty (120) days from the date of the filing of the bond.
Section 15. Notice of sale of property on execution. - Before the sale of property on
execution, notice thereof must be given as follows: The officer shall not be liable for damages for the taking or keeping of the
property, to any third-party claimant if such bond is filed. Nothing herein contained
(a) In case of perishable property, by posting written notice of the time and shall prevent such claimant or any third person from vindicating his claim to the
place of the sale in three (3) public places, preferably in conspicuous areas of the property in a separate action, or prevent the judgment obligee from claiming
municipal or city hall, post office and public market in the municipality or city damages in the same or a separate action against a third-party claimant who filed
where the sale is to take place, for such time as may be reasonable, considering a frivolous or plainly spurious claim.
the character and condition of the property;

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

When the writ of execution is issued in favor of the Republic of the - File a motion for summary hearing of his claim in the very same case
Philippines, or any officer duly representing it, the filing of such bond shall not be where the execution was granted
required, and in case the sheriff or levying officer is sued for damages as a result of - File a separate reindivicatory action – one for recovery of ownership, a
the levy, he shall be represented by the Solicitor General and if held liable therefor, separate case which should be filed against the losing party by the third
the actual damages adjudged by the court shall be paid by the National Treasurer out person.
of such funds as may be appropriated for the purpose.
Q: After levying the personal and real properties, what will the sheriff do Relevant Provisions:
with these properties? Are these automatically given to the winning party? Section 17. Penalty for selling without notice, or removing or defacing notice. - An
A: These properties would be sold to the highest bidder in the public auction, officer selling without the notice prescribed by section 15 of this Rule shall be liable
whether it is real or personal properties, and the proceeds thereat would be given to to pay punitive damages in the amount of five thousand (P5,000.00) pesos to any
the winning party or the judgment obligee. (The winning party may also participate in person injured thereby, in addition to his actual damages, both to be recovered by
the bid.) motion in the same action; and a person willfully removing or defacing the notice
posted, if done before the sale, or before the satisfaction of the judgment if it be
satisfied before the sale, shall be liable to pay five thousand (P5,000.000) pesos to
Sale at public auction: any person injured by reason thereof, in addition to his actual damages, to be
- Winner goes to the highest bidder. Highest bidder is one who gives the recovered by motion in the same action.
highest bid with the least conditions.
Example: You bid 1M but you pay that in one year installments, while Section 18. No sale if judgment and costs paid. - At any time before the sale of
another bids 700,000 but pays in cash. In the rules, the person paying property on execution, the judgment obligor may prevent the sale by paying the
700,000, would be considered as the highest bidder because of the least amount required by the execution and the costs that have been incurred therein.
condition. This is how the highest bidder is considered in terms of the
concept of sale in public auction.
Section 19. How property sold on execution; who may direct manner and order of
- Even if it is personal property, it must be subjected to public auction,
sale. - All sales of property under execution must be made at public auction, to the
including real property.
highest bidder, to start at the exact time fixed in the notice. After sufficient
property has been sold to satisfy the execution, no more shall be sold and any
Q: The sheriff is now executing the real property which belongs to the excess property or proceeds of the sale shall be promptly delivered to the

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


losing party, unfortunately, in the process; the property is claimed by a judgment obligor or his authorized representative, unless otherwise directed by the
third person, what will happen now? judgment or order of the court. When the sale is of real property, consisting of
A: Terseria Rule (Section 16) – The third person must submit or execute an several known lots, they must be sold separately; or, when a portion of such real
affidavit to the sheriff stating his claim on the property. If this is complied, the sheriff property is claimed by a third person, he may require it to be sold separately.
would not continue with the execution. When the sale is of personal property capable of manual delivery, it must be sold
Q: What should be done by the winning party so that the sheriff would within view of those attending the same and in such parcels as are likely to bring
continue with the execution despite the claim of the third person? the highest price. The judgment obligor, if present at the sale, may direct the order
in which property, real or personal, shall be sold, when such property consists of
A: The winning party should post a bond in an amount to be fixed by the court
several known lots or parcels which can be sold to advantage separately. Neither
conditioned upon the payment of whatever damages which may be incurred by the
the officer conducting the execution sale, nor his deputies, can become a
third person when it turns out that he is entitled to that particular property. But you
purchaser, nor be interested directly or indirectly in any purchase at such sale.
can only run after the bond if you file the same within a period of 120 days from the
time of the posting of that bond.
Q: What is one instance where the bond is not required? Section 20. Refusal of purchaser to pay. - If a purchaser refuses to pay the
amount bid by him for property struck off to him at a sale under execution, the
A: If the property is owned by the Republic of the Philippines.
officer may again sell the property to the highest bidder and shall not be
Q: What are the alternative remedies available, apart from the Terseria responsible for any loss occasioned thereby; but the court may order the refusing
Rule, to a third party whose property is the subject of execution? purchaser to pay into the court the amount of such loss, with costs, and may

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 68
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

punish him for contempt if he disobeys the order. The amount of such payment shall Section 26. Certificate of sale where property claimed by third person. - When a
be for the benefit of the person entitled to the proceeds of the execution, unless the property sold by virtue of a writ of execution has been claimed by a third person,
execution has been fully satisfied, in which event such proceeds shall be for the the certificate of sale to be issued by the sheriff pursuant to sections 23, 24 and 25
benefit of the judgment obligor. The officer may thereafter reject any subsequent bid of this Rule shall make express mention of the existence of such third-party claim.
of such purchaser who refuses to pay.
Section 27. Who may redeem real property so sold. - Real property sold as
Section 21. Judgment obligee as purchaser. - When the purchaser is the judgment provided in the last preceding section, or any part thereof sold separately, may be
obligee, and no third-party claim has been filed, he need not pay the amount of the redeemed in the manner hereinafter provided, by the following persons:
bid if it does not exceed the amount of his judgment. If it does, he shall pay only the
(a) The judgment obligor, or his successor in interest in the whole or any part
excess.
of the property;
(b) A creditor having a lien by virtue of an attachment, judgment or mortgage
Section 22. Adjournment of sale. - By written consent of the judgment obligor and
on the property sold, or on some part thereof, subsequent to the lien under
obligee, or their duly authorized representatives, the officer may adjourn the sale to
which the property was sold. Such redeeming creditor is termed a
any date and time agreed upon by them. Without such agreement, he may adjourn
redemptioner.
the sale from day to day if it becomes necessary to do so for lack of time to complete
the sale on the day fixed in the notice or the day to which it was adjourned.
Section 28. Time and manner of, and amounts payable on, successive
Section 23. Conveyance to purchaser of personal property capable of manual redemptions; notice to be given and filed. - The judgment obligor, or
delivery. - When the purchaser of any personal property, capable of manual delivery, redemptioner, may redeem the property from the purchaser, at any time within
pays the purchase price, the officer making the sale must deliver the property to the one (1) year from the date of the registration of the certificate of sale, by paying
purchaser and, if desired, execute and deliver to him a certificate of sale. The sale the purchaser the amount of his purchase, with one per centum per month interest
conveys to the purchaser all the rights which the judgment obligor had in such thereon in addition, up to the time of redemption, together with the amount of any
property as of the date of the levy on execution or preliminary attachment. assessments or taxes which the purchaser may have paid thereon after purchase,
and interest on such last named amount at the same rate; and if the purchaser be
also a creditor having a prior lien to that of the redemptioner, other than the
Section 24. Conveyance to purchaser of personal property not capable of manual
judgment under which such purchase was made, the amount of such other lien,
delivery. - When the purchaser of any personal property, not capable of manual

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


with interest.
delivery, pays the purchase price, the officer making the sale must execute and
deliver to the purchaser a certificate of sale. Such certificate conveys to the purchaser Property so redeemed may again be redeemed within sixty (60) days after
all the rights which the judgment obligor had in such property as of the date of the the last redemption upon payment of the sum paid on the last redemption, with
levy on execution or preliminary attachment. two per centum thereon in addition, and the amount of any assessments or taxes
which the last redemptioner may have paid thereon after redemption by him, with
interest on such last-named amount, and in addition, the amount of any liens held
Section 25. Conveyance of real property; certificate thereof given to purchaser and
by said last redemptioner prior to his own, with interest. The property may be
filed with registry of deeds. - Upon a sale of real property, the officer must give to
again, and as often as a redemptioner is so disposed, redeemed from any previous
the purchaser a certificate of sale containing:
redemptioner within sixty (60) days after the last redemption, on paying the sum
(a) A particular description of the real property sold; paid on the last previous redemption, with two per centum thereon in addition, and
(b) The price paid for each distinct lot or parcel; the amounts of any assessments or taxes which the last previous redemptioner
(c) The whole price paid by him; paid after the redemption thereon, with interest thereon, and the amount of any
liens held by the last redemptioner prior to his own, with interest.
(d) A statement that the right of redemption expires one (1) year from the date
of the registration of the certificate of sale. Written notice of any redemption must be given to the officer who made
the sale and a duplicate filed with the registry of deeds of the place, and if any
Such certificate must be registered in the registry of deeds of the place
assessments or taxes are paid by the redemptioner or if he has or acquires any lien
where the property is situated.
other than that upon which the redemption was made, notice thereof must in like

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 69
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

manner be given to the officer and filed with the registry of deeds; if such notice be
not filed, the property may be redeemed without paying such assessments, taxes, or Section 33. Deed and possession to be given at expiration of redemption period;
liens. by whom executed or given. - If no redemption be made within one (1) year from
the date of the registration of the certificate of sale, the purchaser is entitled to a
Section 29. Effect of redemption by judgment obligor, and a certificate to be conveyance and possession of the property; or, if so redeemed whenever sixty
delivered and recorded thereupon; to whom payments on redemption made. - If the (60) days have elapsed and no other redemption has been made, and notice
judgment obligor redeems, he must make the same payments as are required to thereof given, and the time for redemption has expired, the last redemptioner is
effect a redemption by a redemptioner, whereupon, no further redemption shall be entitled to the conveyance and possession; but in all cases the judgment obligor
allowed and he is restored to his estate. The person to whom the redemption shall have the entire period of one (1) year from the date of the registration of the
payment is made must execute and deliver to him a certificate of redemption sale to redeem the property. The deed shall be executed by the officer making the
acknowledged before a notary public or other officer authorized to take sale or by his successor in office, and in the latter case shall have the same validity
acknowledgments of conveyances of real property. Such certificate must be filed and as though the officer making the sale had continued in office and executed it.
recorded in the registry of deeds of the place in which the property is situated, and Upon the expiration of the right of redemption, the purchaser or
the registrar of deeds must note the record thereof on the margin of the record of redemptioner shall be substituted to and acquire all the rights, title, interest and
the certificate of sale. The payments mentioned in this and the last preceding claim of the judgment obligor to the property as of the time of the levy. The
sections may be made to the purchaser or redemptioner, or for him to the officer possession of the property shall be given to the purchaser or last redemptioner by
who made the sale. the same officer unless a third party is actually holding the property adversely to
the judgment obligor.
Section 30. Proof required of redemptioner. - A redemptioner must produce to the Q: Which of these sales can there be redemption, meaning there is
officer, or person from whom he seeks to redeem, and serve with his notice to the redemption on the part of the owner of that property?
officer a copy of the judgment or final order under which he claims the right to
A: There is no right of redemption in personal property. But there is redemption in
redeem, certified by the clerk of the court wherein the judgment or final order is
real properties.
entered; or, if he redeems upon a mortgage or other lien, a memorandum of the
record thereof, certified by the registrar of deeds; or an original or certified copy of Q: Who can redeem?
any assignment necessary to establish his claim; and an affidavit executed by him or A: The owner of the property or any interested party.
his agent, showing the amount then actually due on the lien. Q: Redemption period and when will it commence?

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


A: In reality, after the auction sale, the sheriff issues a sheriff’s certificate of sale.
Section 31. Manner of using premises pending redemption; waste restrained. - Until Thus, 1 year from the registration of the sheriff’s certificate of sale in the
the expiration of the time allowed for redemption, the court may, as in other proper office of the registry of deeds of the city or province where the property is located.
cases, restrain the commission of waste on the property by injunction, on the
application of the purchaser or the judgment obligee, with or without notice; but it is
not waste for a person in possession of the property at the time of the sale, or Q: During the 1 year period, can the winning party already enter into the
entitled to possession afterwards, during the period allowed for redemption, to property and claim the fruits or proceeds of that property?
continue to use it in the same manner in which it was previously used; or to use it in A: No, he cannot do that because the ownership is not yet vested on him, the
the ordinary course of husbandry; or to make the necessary repairs to buildings debtor remains in the property. If there are fruits, it still belongs to the debtor.
thereon while he occupies the property.
Q: If no redemption within 1 year?
Section 32. Rents, earnings and income of property pending redemption. - The
purchaser or a redemptioner shall not be entitled to receive the rents, earnings and A: The sheriff shall now issue a final certificate of sale, and with this issuance, the
income of the property sold on execution, or the value of the use and occupation winning party now claims ownership and that should be registered as the basis for
thereof when such property is in the possession of a tenant. All rents, earnings and the transfer of the title of the property.
income derived from the property pending redemption shall belong to the judgment
obligor until the expiration of his period of redemption.

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Q: What if the debtor refuses to vacate or leave the property even after unsatisfied, in whole or in part, the judgment obligee, at any time after such return
issuance of final certificate of sale? What can be done under the is made, shall be entitled to an order from the court which rendered the said
circumstances? judgment, requiring such judgment obligor to appear and be examined concerning
A: File an ex parte motion for the issuance of a writ of possession, since it is his property and income before such court or before a commissioner appointed by
becomes ministerial on the part of the court to issue it. Except if the property is in the it, at a specified time and place; and proceedings may thereupon be had for the
possession of a third party, because if the property is in the possession of a third application of the property and income of the judgment obligor towards the
party and not the losing party, you can still file a motion for the issuance of writ of satisfaction of the judgment. But no judgment obligor shall be so required to
possession but the court must conduct a hearing to determine the rights of that appear before a court or commissioner outside the province or city in which such
particular third party. obligor resides or is found.

Section 37. Examination of obligor of judgment obligor. - When the return of a


TN: Writ of possession is usually issued aside from executions in land registration
writ of execution against the property of a judgment obligor shows that the
case, extra-judicial foreclosure and judicial foreclosure. In execution sales, there can
judgment remains unsatisfied, in whole or in part, and upon proof to the
also be an issuance of writ of possession (ex parte) if after the lapse of the
satisfaction of the court which issued the writ, that a person, corporation, or other
redemption period and upon the issuance of the final certificate of sale, the wining
juridical entity has property of such judgment obligor or is indebted to him, the
party cannot enter into possession as the debtor is still there.
court may, by an order, require such person, corporation, or other juridical entity,
or any officer or member thereof, to appear before the court or a commissioner
Relevant Provisions: appointed by it, at a time and place within the province or city where such debtor
Section 34. Recovery of price if sale not effective; revival of judgment. - If the resides or is found, and be examined concerning the same. The service of the
purchaser of real property sold on execution, or his successor in interest, fails to order shall bind all credits due the judgment obligor and all money and property of
recover the possession thereof, or is evicted therefrom, in consequence of the judgment obligor in the possession or in the control of such person,
irregularities in the proceedings concerning the sale, or because the judgment has corporation, or juridical entity from the time of service; and the court may also
been reversed or set aside, or because the property sold was exempt from execution, require notice of such proceedings to be given to any party to the action in such
or because a third person has vindicated his claim to the property, he may on motion manner as it may deem proper.
in the same action or in a separate action recover from the judgment obligee the
price paid, with interest, or so much thereof as has not been delivered to the Section 38. Enforcement of attendance and conduct of examination. - A party or

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judgment obligor; or he may, on motion, have the original judgment revived in his other person may be compelled, by an order or subpoena, to attend before the
name for the whole price with interest, or so much thereof as has been delivered to court or commissioner to testify as provided in the two preceding sections, and
the judgment obligor. The judgment so revived shall have the same force and effect upon failure to obey such order or subpoena or to be sworn, or to answer as a
as an original judgment would have as of the date of the revival and no more. witness or to subscribe his deposition, may be punished for contempt as in other
cases. Examinations shall not be unduly prolonged, but the proceedings may be
Section 35. Right to contribution or reimbursement. - When property liable to an adjourned from time to time, until they are completed. If the examination is before
execution against several persons is sold thereon, and more than a due proportion of a commissioner, he must take it in writing and certify it to the court. All
the judgment is satisfied out of the proceeds of the sale of the property of one of examinations and answers before a court or commissioner must be under oath,
them, or one of them pays, without a sale, more than his proportion, he may compel and when a corporation or other juridical entity answers, it must be on the oath of
a contribution from the others; and when a judgment is upon an obligation of one of an authorized officer or agent thereof.
them, as security for another, and the surety pays the amount, or any part thereof,
either by sale of his property or before sale, he may compel repayment from the Section 39. Obligor may pay execution against obligee. - After a writ of execution
principal. against property has been issued, a person indebted to the judgment obligor may
pay to the sheriff holding the writ of execution the amount of his debt or so much
Section 36. Examination of judgment obligor when judgment unsatisfied. - When thereof as may be necessary to satisfy the judgment, in the manner prescribed in
the return of a writ of execution issued against property of a judgment obligor, or any section 9 of this Rule, and the sheriff’s receipt shall be a sufficient discharge for the
one of several obligors in the same judgment, shows that the judgment remains

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

amount so paid or directed to be credited by the judgment obligee on the execution. the judgment obligee or by his counsel unless a revocation of his authority is filed,
or upon the endorsement of such admission by the judgment obligee or his counsel
Section 40. Order for application of property and income to satisfaction of on the face of the record of the judgment.
judgment. - The court may order any property of the judgment obligor, or money due
him, not exempt from execution, in the hands of either himself or another person, or Section 45. Entry of satisfaction with or without admission. - Whenever a
of a corporation or other juridical entity, to be applied to the satisfaction of the judgment is satisfied in fact, or otherwise than upon an execution, on demand of
judgment, subject to any prior rights over such property. the judgment obligor, the judgment obligee or his counsel must execute and
If, upon investigation of his current income and expenses, it appears that acknowledge, or indorse, an admission of the satisfaction as provided in the last
the earnings of the judgment obligor for his personal services are more than preceding section, and after notice and upon motion the court may order either the
necessary for the support of his family, the court may order that he pay the judgment judgment obligee or his counsel to do so, or may order the entry of satisfaction to
in fixed monthly installments, and upon his failure to pay any such installment when be made without such admission.
due without good excuse, may punish him for indirect contempt.
Section 46. When principal bound by judgment against surety. - When a
Section 41. Appointment of receiver. - The court may appoint a receiver of the judgment is rendered against a party who stands as surety for another, the latter is
property of the judgment obligor; and it may also forbid a transfer or other also bound from the time that he has notice of the action or proceeding, and an
disposition of, or any interference with, the property of the judgment obligor not opportunity at the surety’s request to join in the defense.
exempt from execution.
Section 47. Effect of judgments or final orders. - The effect of a judgment or final
Section 42. Sale of ascertainable interest of judgment obligor in real estate. - If it order rendered by a court of the Philippines, having jurisdiction to pronounce the
appears that the judgment obligor has an interest in real estate in the place in which judgment or final order, may be as follows:
proceedings are had, as mortgagor or mortgagee or otherwise, and his interest (a) In case of a judgment or final order against a specific thing, or in respect
therein can be ascertained without controversy, the receiver may be ordered to sell to the probate of a will, or the administration of the estate of a deceased
and convey such real estate or the interest of the obligor therein; and such sale shall person, or in respect to the personal, political, or legal condition or status of a
be conducted in all respects in the same manner as is provided for the sale of real particular person or his relationship to another, the judgment or final order is
estate upon execution, and the proceedings thereon shall be approved by the court conclusive upon the title to the thing, the will or administration, or the
before the execution of the deed. condition, status or relationship of the person; however, the probate of a will

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or granting of letters of administration shall only be prima facie evidence of
Section 43. Proceedings when indebtedness denied or another person claims the the death of the testator or intestate;
property. - If it appears that a person or corporation, alleged to have property of the (b) In other cases, the judgment or final order is, with respect to the matter
judgment obligor or to be indebted to him, claims an interest in the property adverse directly adjudged or as to any other matter that could have been raised in
to him or denies the debt, the court may authorize, by an order made to that effect, relation thereto, conclusive between the parties and their successors in
the judgment obligee to institute an action against such person or corporation for the interest by title subsequent to the commencement of the action or special
recovery of such interest or debt, forbid a transfer or other disposition of such proceeding, litigating for the same thing and under the same title and in the
interest or debt within one hundred twenty (120) days from notice of the order, and same capacity; and
may punish disobedience of such order as for contempt. Such order may be modified (c) In any other litigation between the same parties or their successors in
or vacated at any time by the court which issued it, or by the court in which the interest, that only is deemed to have been adjudged in a former judgment or
action is brought, upon such terms as may be just. final order which appears upon its face to have been so adjudged, or which
was actually and necessarily included therein or necessary thereto.
Section 44. Entry of satisfaction of judgment by clerk of court. - Satisfaction of a
Q: What is the effect of a final judgment issued by the court?
judgment shall be entered by the clerk of court in the court docket, and in the
execution book, upon the return of a writ of execution showing the full satisfaction of A: Any final decision becomes res judicata. For res judicata to prosper, the
the judgment, or upon the filing of an admission to the satisfaction of the judgment following elements must be proven: it must be a judgment on the merits by a court
executed and acknowledged in the same manner as a conveyance of real property by of competent jurisdiction, identity of parties, identity of subject matters, identity of

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

causes of action, identity as required by law is not absolute but only substantial  If a property subject for execution is claimed by a third person? Terseria,
identity. summary hearing, separate reindivicatory action.
**The case is dismissed for failure of the plaintiff to appear in court or non suit, the  Execution can be matters of right and discretion.
plaintiff refiled the case, while the defendant contends that it is not allowed.  How many years to file a motion for execution? 5 years from finality, No
Defendant filed a motion to dismiss the case on the ground of res judicata, would you motion within 5 years but within 10 years, file an action for revival of
grant the motion to dismiss? (That is how the question will be in the midterm judgment. No revival after 10 years, you go back to file the case.
examination).
***Dismissal of the case for failure of the plaintiff to appear in court or non suit is INTRODUCTION FOR APPEAL:
equivalent to a dismissal having an effect of an adjudication upon the merits, hence a If decided by the RTC (appellate jurisdiction) File a petition for review under Rule
dismissal with prejudice. Once the decision is final and executory, it can no longer be 42, (original jurisdiction) File ordinary appeal. Can you go directly to the SC by way
refilled and the decision becomes res judicata. (see Rule 17, sec. 3) of certiorari under Rule 45? Yes, if pure question of law, involving constitutionality,
validity of a law, treaty, or jurisdiction of any of the courts.
Relevant Provision:
Section 48. Effect of foreign judgments or final orders. - The effect of a judgment or
RULE 40
final order of a tribunal of a foreign country, having jurisdiction to render the APPEAL FROM MUNICIPAL TRIAL COURTS TO THE REGIONALTRIAL COURTS
judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific thing, the judgment or Relevant Provisions:
final order is conclusive upon the title to the thing; and
Section 1. Where to appeal.- An appeal from a judgment or final order of a
(b) In case of a judgment or final order against a person, the judgment or final Municipal Trial Court may be taken to the Regional Trial Court exercising
order is presumptive evidence of a right as between the parties and their jurisdiction over the area to which the former pertains. The title of the case shall
successors in interest by a subsequent title. remain as it was in the court of origin, but the party appealing the case shall be
In either case, the judgment or final order may be repelled by evidence of a further referred to as the appellant and he adverse party as the appellee.
want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of Section 2. When to appeal. - An appeal may be taken within fifteen (15) days
law or fact. after notice to the appellant of the judgment or final order appealed from. Where a
record on appeal is required, the appellant shall file a notice of appeal and a record

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Q: What is the effect of a foreign judgment in our courts? Can it be
executed in the Philippines or is there something which can be done? on appeal within thirty (30) days after notice of the judgment or final order.
A: No, it cannot be enforced or executed in the Philippines, but it can only give a The period of appeal shall be interrupted by a timely motion for new trial
right of action between the parties or on the part of the party to proceed against the or reconsideration. No motion for extension of time to file a motion for new trial or
other party before any court in the Philippines. reconsideration shall be allowed.
Section 3. How to appeal. - The appeal is taken by filing a notice of appeal with
the court that rendered the judgment or final order appealed from. The notice of
TN: In other words, you can file an action based on that foreign judgment or as the
appeal shall indicate the parties to the appeal, the judgment or final order or part
law says, can question that on the grounds of lack of jurisdiction, want of collusion,
thereof appealed from, and state the material dates showing the timeliness of the
fraud, clear mistake of law or fact – these will be the defenses available to the party
appeal.
against the winning party in that foreign judgment because it gives a right of action
but it cannot be enforced or executed in the Philippines. A record on appeal shall be required only in special proceedings and in
other cases of multiple or separate appeals.
The form and contents of the record on appeal shall be as provided in
RECAP:
section 6, Rule 41.
 What will you do to prevent execution pending appeal? Post a supersedeas
Copies of the notice of appeal, and the record on appeal where required,
bond.
shall be served on the adverse party.

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Section 4. Perfection of appeal; effect thereof. - The perfection of the appeal and TN: In Rule 40 this is from the MTC to the CA, when it comes to the RTC take note
the effect thereof shall be governed by the provisions of section 9, Rule 41. that you have to make certain qualifications whether this is a decision rendered by
Section 5. Appellate court docket and other lawful fees. - Within the period for the RTC in the exercise of its original jurisdiction or whether this is a decision
taking an appeal, the appellant shall pay to the clerk of the court which rendered the rendered by the RTC in the exercise of its appellate jurisdiction. Generally
judgment or final order appealed from the full amount of the appellate court docket speaking, if this is a final order or decision rendered by the RTC in the exercise of
and other lawful fees. Proof of payment thereof shall be transmitted to the appellate its original jurisdiction you move that to the CA by ordinary appeal.
court together with the original record or the record on appeal, as the case may be.
Section 6. Duty of the clerk of court. - Within fifteen (15) days from the perfection Q: What do you do by ordinary appeal?
of the appeal, the clerk of court or the branch clerk of court of the lower court shall A: Filing of notice of appeal together with payment of the docket and other lawful
transmit the original record or the record on appeal, together with the transcripts and fees.
exhibits, which he shall certify as complete, to the proper Regional Trial Court. A copy
TN: The period of appeal shall be interrupted by a timely motion for new trial or
of his letter of transmittal of the records to the appellate court shall be furnished the
reconsideration. No motion for extension of time to file a motion for new trial or
parties.
reconsideration shall be allowed.
Section 7. Procedure in the Regional Trial Court.
Q: Period to appeal?
(a) upon receipt of the complete record or the record on appeal, the clerk of court of
A: MTC to RTC is 15 days; RTC to CA is also 15 days from receipt of the final
the Regional Trial Court shall notify the parties of such fact.
judgment unless a record on appeal is required and on cases on multiple appeals
(b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to which it should be filed within 30 days.
submit a memorandum which shall briefly discuss the errors imputed to the lower
TN: Generally speaking 15 days to appeal, you start counting the 15 day period
court, a copy of which shall be furnished by him to the adverse party. Within fifteen
from the receipt of the final order or judgment except when this is a case which
(15) days from receipt of the appellant’s memorandum, the appellee may file his
involves multiple appeals the period to appeal is 30 days count that from receipt of
memorandum. Failure of the appellant to file a memorandum shall be a ground for
the final judgment or order. Unlike in ordinary appeals where you file a notice of
dismissal of the appeal.
appeal and pay the docket and other lawful fees in cases of multiple of appeals you
(c) Upon the filing of the memorandum of the appellee, or the expiration of the file a notice of appeal together with the payment of the docket and other lawful
period to do so, the case shall be considered submitted for decision. The Regional fees plus record on appeal, precisely the law grants 30 days because that is also a
Trial Court shall decide the case on the basis of the entire record of the proceedings requirement for the submission of a record on appeal.

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had in the court of origin and such memoranda as are filed.
The cases where the law allows the filing of multiple appeals are the
Section 8. Appeal from orders dismissing case without trial; lack of jurisdiction. - If settlement of estate, special proceedings, partition, expropriation, special civil
an appeal is taken from an order of the lower court dismissing the case without a trial action, foreclosure of real estate mortgage.
on the merits, the Regional Trial Court may affirm or reverse it, as the case may be.
Q: What should be done by the RTC if the basis of the appeal is because
In case of affirmance and the ground of dismissal is lack of jurisdiction over
the MTC judge dismissed after finding out that it has no jurisdiction over
the subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try
the subject matter of the case but it was appealed by the plaintiff to the
the case on the merits as if the case was originally filed with it. In case of reversal,
RTC?
the case shall be remanded for further proceedings.
A: The RTC will try the case as if it is originally filed with the RTC.
If the case was tried on the merits by the lower court without jurisdiction
over the subject matter, the Regional Trial Court on appeal shall not dismiss the case
if it has original jurisdiction thereof, but shall decide the case in accordance with the **The procedure in taking an appeal from the MTC to RTC is the same with the
preceding section, without prejudice to the admission of amended pleadings and procedure in an appeal from the RTC in the exercise of its original jurisdiction to
additional evidence in the interest of justice. the CA. It is via ordinary appeal.
Section 9. Applicability of Rule 41. - The other provisions of Rule 41 shall apply to
appeals provided for herein insofar as they are not inconsistent with or may serve to
supplement the provisions of this Rule.

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

(a) Ordinary Appeal. – The appeal to the court of appeals in cases decided
RULE 41 by the Regional Trial Court in the exercise of its original jurisdiction shall be
APPEAL FROM THE REGIONAL TRIAL COURTS taken by filing a notice of appeal with the court which rendered the judgement
or final order appealed from and serving and serving a copy thereof upon the
Relevant Provision: adverse party. No record on appeal shall be required except in special
Section 1. Subject of appeal. - An appeal may be taken from a judgment or final proceedings and other cases of multiple or separate appeals where the law of
order that completely disposes of the case or of a particular matter therein when this Rules so require. In such cases, the record on appeal shall be filed and
declared by these Rules to be appealable. served in like manner.
(a) An order denying a motion for new trial or reconsideration; (b) Petition for review. – the appeal to the Court of appeals in cases
(b) An order denying a petition for relief or any similar motion seeking relief from decided by the Regional Trial Court in the exercise of its appellate jurisdiction
judgment; shall be by petition for review in accordance with Rule 42.

(c) An interlocutory order; (c) Appeal by certiorari. – In all cases where only questions of law are
raised or involved, it shall be to the Supreme Court by petition for review on
(d) An order disallowing or dismissing an appeal; certiorari in accordance with Rule 45.
(e) An order denying a motion to set aside a judgment by consent, confession or Section 3. Period of ordinary appeal. - The appeal shall be taken within fifteen
compromise on the ground of fraud, mistake or duress, or any other ground (15) days from notice of the judgment or final order appealed from. Where a
vitiating consent; record on appeal is required, the appellant shall file a notice of appeal and a record
(f) An order of execution; on appeal within thirty (30) days from notice of the judgment or final order.
(g) A judgment or final order for or against one or more of several parties or in Section 4. Appellate court docket and other lawful fees. - Within the period for
separate claims, counterclaims, cross-claims and third-party complaints, while taking an appeal, the appellant shall pay to the clerk of the court which rendered
the main case is pending, unless the court allows an appeal therefrom; and the judgment or final order appealed from, the full amount of the appellate court
(h) An order dismissing an action without prejudice. docket and other lawful fees. Proof of payment of said fees shall be transmitted to
the appellate court together with the original record or the record on appeal.
In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special civil action under Rule Section 5. Notice of appeal. - The notice of appeal shall indicate the parties to the
65. appeal, specify the judgment or final order or part thereof appealed from, specify
the court to which the appeal is being taken, and state the material dates showing

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TN: In 41, an appeal from the RTC to the CA presupposes that this is a final the timeliness of the appeal.
judgment, and then this is a judgment rendered by the RTC in the exercise of its
original jurisdiction TN: According to the provisions of the law, the filing of a motion for new trial or
reconsideration suspends the running of the period on appeal unless the motion for
Unless this is a decision of the RTC in the exercise of its original jurisdiction
reconsideration and new trial is pro forma.
and your appeal is on pure question of law, you go to the SC via a petition for review
on certiorari under Rule 45 including all the cases involved in the constitutionality, The motion for new trial and reconsideration should not be pro forma,
validity of any law, treaty, regulation, executive order and then the jurisdiction of an because if it is pro forma it will not suspend the running of the period to appeal. In
inferior court is in issue, and provided further that in this cases involved is pure pro forma, it is usually when the allegations in the reconsideration and new trial
question of law. are just repetitive arguments which are already raised before the court renders a
decision. It also becomes pro forma if it did not contain an affidavit of merit and
Q: If this is rendered by the RTC in the exercise of its appellate jurisdiction
such affidavit of merit is based on a motion for new trial of fake, fraud, mistake,
you go to the CA via?
because if it is newly discovered evidence it does not require affidavit of merit.
A: Petition for review under Rule 42
Q: Can this 15 day or 30 day period to appeal be extended?
A: No on grounds of public policy, according to the recent decision of the SC on
Relevant Provision: the case of GSIS vs. Jines
Section 2. Modes of appeal. –

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Q: In terms of payment and other docket fees, how did the SC interpret five (5) copies of the transcripts of the testimonial evidence referred to in the
that? Is it really strict or can be relaxed? record on appeal. The stenographers concerned shall transcribe such testimonial
A: It can be extended according to Ballatan vs. CA evidence and shall prepare and affix to their transcripts an index containing the
names of the witnesses and the pages wherein their testimonies are found, and a
list of the exhibits and the pages wherein each of them appears to have been
Relevant Provisions: offered and admitted or rejected by the trial court. The transcripts shall be
Section 9. Perfection of appeal; effect thereof. - A party’s appeal by notice of appeal transmitted to the clerk of the trial court who shall thereupon arrange the same in
is deemed perfected as to him upon the filing of the notice of appeal in due time. the order in which the witnesses testified at the trial, and shall cause the pages to
A party’s appeal by record on appeal is deemed perfected as to him with be numbered consecutively.
respect to the subject matter thereof upon the approval of the record on appeal filed Section 12. Transmittal. - The clerk of the trial court shall transmit to the
in due time. appellate court the original record or the approved record on appeal within thirty
In appeals by notice of appeal, the court loses jurisdiction over the case (30) days from the perfection of the appeal, together with the proof of payment of
upon the perfection of the appeals filed in due time and the expiration of the time to the appellate court docket and other lawful fees, a certified true copy of the
appeal of the other parties. minutes of the proceedings, the order of approval, the certificate of correctness,
the original documentary evidence referred to therein, and the original and three
In appeals by record on appeal, the court loses jurisdiction only over the (3) copies of the transcripts. Copies of the transcripts and certified true copies of
subject matter thereof upon the approval of the records on appeal filed in due time the documentary evidence shall remain in the lower court for the examination of
and the expiration of the time to appeal of the other parties. the parties.
In either case, prior to the transmittal of the original record or the record on
Q: Upon filing of this notice to appeal, payment of lawful and other
appeal, the court may issue orders for the protection and preservation of the rights of
docket fees, what should the clerk of court do? And when should it be
the parties which do not involve any matter litigated by the appeal, approve
done?
compromises, permit appeals of indigent litigants, order execution pending appeal in
accordance with section 2 of Rule 39, and allow withdrawal of the appeal. A: From the receipt of the notice of appeal the clerk of court shall transmit the
records of the case to the court within its jurisdiction within 15 days.
Section 10. Duty of clerk of court of the lower court upon perfection of appeal . -
Within thirty (30) days after perfection of all the appeals in accordance with the Q: Upon receipt of the notice of appeal what should the clerk of court do?
preceding section, it shall be the duty of the clerk of court of the lower court: A: He shall notify the parties that the records of the case have been received by

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


(a) To verify the correctness of the original record or the record on appeal, as the RTC. Together with that notice to the parties is an order requiring the appellant
the case may be, and to make a certification of its correctness; to submit a memorandum within 15 days. Upon submission of the memorandum,
the case now is deemed submitted for decision.
(b) To verify the completeness of the records that will be transmitted to the
appellate court; Q: If no submission of the appellants memorandum what would be the
effect?
(c) If found to be incomplete, to take such measures as may be required to
complete the records, availing of the authority that he or the court may exercise A: It would tantamount to the dismissal of the appeal.
for this purpose; and Q: Whether appeal from the MTC to the RTC or RTC to CA, when is an
(d) To transmit the records to the appellate court. appeal deemed perfected?
If the efforts to complete the records fail, he shall indicate in his letter of A: A party’s appeal by notice of appeal is deemed perfected as to him upon the
transmittal the exhibits or transcripts not included in the records being transmitted to filling of the notice of appeal in due time.
the appellate court, the reasons for their non-transmittal, and the steps taken or that Q: While the notice of appeal was filed either before the MTC or the RTC,
could be taken to have them available. but the RTC has not yet transmitted the records of the case to the
The clerk of court shall furnish the parties with copies of his letter of appellate court or the MTC has not yet transmitted the records of the
transmittal of the records to the appellate court. case to the RTC can the court still do something there?
Section 11. Transcript. - Upon the perfection of the appeal, the clerk shall A: Yes, the court can still exercise the residual jurisdiction.
immediately direct the stenographers concerned to attach to the record of the case

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

TN: The court might have lost its jurisdiction over the case because the period to
appeal has already expired but as long as the court is still in possession of the Relevant Provision:
records of appeal of that particular case the court can still exercise what we call
Section 7. Approval of record on appeal. - Upon the filing of the record on appeal
residual powers.
for approval and if no objection is filed by the appellee within five (5) days from
receipt of a copy thereof, the trial court may approve it as presented or upon its
Record on Appeal
own motion or at the instance of the appellee, may direct its amendment by the
Relevant Provision: inclusion of any omitted matters which are deemed essential to the determination
of the issue of law or fact involved in the appeal. If the trial court orders the
Section 6. Record on appeal; form and contents thereof. - The full names of all the
amendment of the record, the appellant, within the time limited in the order, or
parties to the proceedings shall be stated in the caption of the record on appeal and
such extension thereof as may be granted, or if no time is fixed by the order within
it shall include the judgment or final order from which the appeal is taken and, in
ten (10) days from receipt thereof, shall redraft the record by including therein, in
chronological order, copies of only such pleadings, petitions, motions and all
their proper chronological sequence, such additional matters as the court may have
interlocutory orders as are related to the appealed judgment or final order for the
directed him to incorporate, and shall thereupon submit the redrafted record for
proper understanding of the issue involved, together with such data as will show that
approval, upon notice to the appellee, in like manner as the original draft.
the appeal was perfected on time. If an issue of fact is to be raised on appeal, the
record on appeal shall include by reference all the evidence, testimonial and Section 8. Joint record on appeal. - Where both parties are appellants, they may
documentary, taken upon the issue involved. The reference shall specify the file a joint record on appeal within the time fixed by section 3 of this Rule, or that
documentary evidence by the exhibit numbers or letters by which it was identified fixed by the court.
when admitted or offered at the hearing, and the testimonial evidence by the names Section 13. Dismissal of appeal. - Prior to the transmittal of the original record or
of the corresponding witnesses. If the whole testimonial and documentary evidence the record on appeal to the appellate court, the trial court may motu proprio or on
in the case is to be included, a statement to that effect will be sufficient without motion dismiss the appeal for having been taken out of time.
mentioning the names of the witnesses or the numbers or letters of exhibits. Every
Q: Record on appeal was filed in court what should be done by the court?
record on appeal exceeding twenty (20) pages must contain a subject index.
A: Copy furnish the record on appeal to the appellee.
Q: In multiple appeals, aside from the notice of appeal, aside for the
Q: What should be the content of a notice of appeal? The most important
payment of lawful and other docket fees is the submission of the records
one.
appeal, what is one indispensable requirement which should be in the
A: The material dates (material data rule)

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record of appeal that if you fail to comply that particular requirement then
the court will not grant your appeal? Q: You copy furnished the appellee of the record on appeal however he
A: That the record on appeal must show on its face that the appeal is filed on time. did not file any opposition what should be done by the court?
Q: What do we do with the record on appeal? What is its content? A: Approve of the appeal
A: Everything that happens in the trial from the filing of the complaint so on and so Q: If there is an opposition what should be done?
forth. A: The court will issue an order requiring the appellant to amend the record on
Q: Is there an instance where the period is lower that 30 or 15 days? appeal within 10 days
A: In habeas corpus case, where the appeal period is 48 hours. Q: Can an appeal be withdrawn?
Q: Can you mention 2 instances where it cannot be subject on appeal? ANS: Yes
A: Interlocutory order and an order disallowing or dismissing an appeal. Q: Can the original court, the RTC still act on a motion to withdraw
appeal as matter of right?
Q: What is the remedy here?
ANS: Yes, before the records of the case are transmitted.
A: Petition for certiorari under Rule 65.
Q: In your own opinion what would be the appropriate remedy if your
appeal is dismissed? Certiorari, mandamus or prohibition?
A: Prohibition

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Section 3.Effect of failure to comply with requirements. — The failure of the


RULE 42 petitioner to comply with any of the foregoing requirements regarding the payment
PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE of the docket and other lawful fees, the deposit for costs, proof of service of the
COURT OF APPEALS petition, and the contents of and the documents which should accompany the
petition shall be sufficient ground for the dismissal thereof. (n)
Relevant Provisions: Section 4.Action on the petition. — The Court of Appeals may require the
Section 1. How appeal taken; time for filing. — A party desiring to appeal from a respondent to file a comment on the petition, not a motion to dismiss, within ten
decision of the Regional Trial Court rendered in the exercise of its appellate (10) days from notice, or dismiss the petition if it finds the same to be patently
jurisdiction may file a verified petition for review with the Court of Appeals, paying at without merit, prosecuted manifestly for delay, or that the questions raised therein
the same time to the clerk of said court the corresponding docket and other lawful are too insubstantial to require consideration.
fees, depositing the amount of P500.00 for costs, and furnishing the Regional Trial Section 5.Contents of comment. — The comment of the respondent shall be filed
Court and the adverse party with a copy of the petition. The petition shall be filed in seven (7) legible copies, accompanied by certified true copies of such material
and served within fifteen (15) days from notice of the decision sought to be reviewed portions of the record referred to therein together with other supporting papers
or of the denial of petitioner's motion for new trial or reconsideration filed in due time and shall (a) state whether or not he accepts the statement of matters involved in
after judgment. Upon proper motion and the payment of the full amount of the the petition; (b) point out such insufficiencies or inaccuracies as he believes exist in
docket and other lawful fees and the deposit for costs before the expiration of the petitioner's statement of matters involved but without repetition; and (c) state the
reglementary period, the Court of Appeals may grant an additional period of fifteen reasons why the petition should not be given due course. A copy thereof shall be
(15) days only within which to file the petition for review. No further extension shall served on the petitioner.
be granted except for the most compelling reason and in no case to exceed fifteen
(15) days. TN: Rule 42 is the remedy in cases of judgment of the RTC in the exercise of it
appellate jurisdiction. Meaning, from the MTC, you do that by ordinary appeal to
the RTC. Then from the RTC, you do that by the Petition for Review under Rule 42.
Section 2. Form and contents. — The petition shall be filed in seven (7) legible Not unless if it is a decision of the RTC in the exercise of its original jurisdiction
copies, with the original copy intended for the court being indicated as such by the that what is involved is pure question of law, validity, constitutionality of any law,
petitioner, and shall (a) state the full names of the parties to the case, without treaty, jurisdiction of any inferior court is in issue .Even if this involves the
impleading the lower courts or judges thereof either as petitioners or respondents; constitutionality and validity of any law, you know there are factual issues involved,
(b) indicate the specific material dates showing that it was filed on time; (c) set forth you do not go to the Supreme Court. You go to the Court of Appeals. This one

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concisely a statement of the matters involved, the issues raised, the specification of presupposes that it’s pure question of law that is why you are allowed to go
errors of fact or law, or both, allegedly committed by the Regional Trial Court, and directly ha to the Supreme Court via petition for review in certiorari under Rule 45.
the reasons or arguments relied upon for the allowance of the appeal; (d) be Q: How do you go to the Court of Appeals via petition for review under
accompanied by clearly legible duplicate originals or true copies of the judgments or Rule 42? What are certain requirements there?
final orders of both lower courts, certified correct by the clerk of court of the Regional
Trial Court, the requisite number of plain copies thereof and of the pleadings and A: File a petition for review within 15 days from the receipt of the judgment or if
other material portions of the record as would support the allegations of the petition. there is a motion for reconsideration, new trial, fresh period of 15 days from the
receipt of the denial of your motion for reconsideration. You know what, filing for
The petitioner shall also submit together with the petition a certification petition for review is very tedious eh and 15 days is too short.
under oath that he has not theretofore commenced any other action involving the
same issues in the Supreme Court, the Court of Appeals or different divisions thereof, Q: Are you allowed to extend? What do you do to extend?
or any other tribunal or agency; if there is such other action or proceeding, he must A: File a motion for extension
state the status of the same; and if he should thereafter learn that a similar action or TN: you file the motion with the Court of Appeals for extension of time to file
proceeding has been filed or is pending before the Supreme Court, the Court of petition for review and along with the motion, you should pay the docket and
Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes lawful fees including the costs of Php 500.00.
to promptly inform the aforesaid courts and other tribunal or agency thereof within
Don’t file the motion for extension of time in the RTC. File it in the Court
five (5) days therefrom.
of Appeals and see to it that you have already paid the docket and lawful fees as
the Php 500.00 as your costs. No further extension is allowed unless for the most

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 78
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

compelling reason again not to exceed 15 days. All in all, you can have 30 days. But TN: Cases covered by Rules on Summary Procedure, decision will not stay unless
as to what the most compelling reason is, I think it depends to the Court of Appeals the Court of Appeals issued a temporary restraining order.
to determine whether what you are seeking in your motion is in the most compelling When you become lawyers and you want to go to the Court of Appeals via
reason. All in all, 30 days. 15 original then no more except if there is a compelling petition for review under Rule 42, the decision cannot be the subject of execution.
reason, you are allowed to ask for extension again for another 15 days. See to it that you pray of a writ of preliminary injunction or temporary restraining
TN: Payment of lawful and docket fees, filed within 15 and compliance with the order because while it may be true that the petition for review under rule 42 will
requirements which will be set forth in the petition. If not complied, it will be a stay the questioned decision, the law will take exception to those which are
ground for outright dismissal of your petition for review. covered by the rules on summary procedure.
Q: What are essential requirements in the petition? If you file a petition for
review, what should be the contents of this petition? Relevant Provisions:
A: Material Data Rule, Certification of Non-forum shopping, and attach the original Section 6. Due course. — If upon the filing of the comment or such other
copies or certified true copies (certified by the clerk of court) of the questioned pleadings as the court may allow or require, or after the expiration of the period
decision both from the MTC and RTC. for the filing thereof without such comment or pleading having been submitted, the
TN: Material Data Rule is the date when you received, the date of the decision. Court of Appeals finds prima facie that the lower court has committed an error of
The most important, attach the original copy of the questioned decisions not only fact or law that will warrant a reversal or modification of the appealed decision, it
from the RTC but also from the MTC. If not, certified true copy must only be certified may accordingly give due course to the petition.
by that clerk of court which rendered that decision because if you let another person
certify that decision and not that clerk of court of that court which rendered that
Section 7. Elevation of record. — Whenever the Court of Appeals deems it
decision, unfortunately that merits the dismissal of the appeal.
necessary, it may order the clerk of court of the Regional Trial Court to elevate the
Although you need not include the court which rendered the decision, you original record of the case including the oral and documentary evidence within
must copy furnished the court a copy of your petition. Unlike in certiorari under Rule fifteen (15) days from notice.
65 where the court or agency which made the decision is made as a respondent, in
petitions for review, you don’t have to include but you must copy furnished the court Q: What should be done by the court after it finds due course there?
the copy of your petition. A: The law says, maybe it would set the case for oral arguments or let the parties
If you failed to comply with any of these requirements including the file the respective memorandum but there are instances too that the Court of
Appeals may order the RTC to elevate the entire records to the appellate court to

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


payment of lawful and docket fees and including the Php 500.00 cost, clear in one
section is a ground for dismissal of the appeal. We talked about verification, guide the appellate court in resolving the questioned decision. Unlike in ordinary
certification, material data rule. Those are the ones needed basically in filing petitions appeal where the records are transmitted to the Court of Appeals, in petition for
under Rule 42 and it must submit 7 legible copies to the court. If the court finds that review, it’s not. It is initiated by the petitioner but there are instances when the
there is no merit, it can dismiss it right away. Like, it’s patently filed for purposes of Court of Appeals would really need to look at the entire records on the RTC
delay, the grounds are too unsubstantial to merit consideration. decided it, then it may order the RTC clerk of court to elevate the entire case to
the court of appeals. That is Rule 42.
Q: What should be the next thing to be done by the Court of Appeals?
A: The Court will require the respondents to file a comment.
Relevant Provisions:
TN: And the comment should also be in 7 copies. If it finds due course, then
definitely, it would issue an order requiring the respondent to submit its comment, Section 8. Perfection of appeal; effect thereof.
not a motion to dismiss. The law is very clear, within 15 days also from receipt of that (a) Upon the timely filing of a petition for review and the payment of the
particular notice. corresponding docket and other lawful fees, the appeal is deemed perfected as to
Q: What is the effect of the filing of the petition for review in so far as the the petitioner.
questioned decision is concerned? Can the subject decision be executed? The Regional Trial Court loses jurisdiction over the case upon the
General rule: The decision will be stayed upon the filing of a petition for review. perfection of the appeals filed in due time and the expiration of the time to appeal
of the other parties.
Exception: Cases covered by the Rules on Summary Procedure

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

However, before the Court of Appeals gives due course to the petition, the Rule 43 is applicable to appeals of decisions from quasi-judicial bodies
Regional Trial Court may issue orders for the protection and preservation of the rights which are also brought to the Court of Appeals via also petition for review. These
of the parties which do not involve any matter litigated by the appeal, approve quasi-judicial bodies are enumerated in Section 1 – GSIS, Employees
compromises, permit appeals of indigent litigants, order execution pending appeal in Compensation Commission, even voluntary arbitration but no longer Court of Tax
accordance with section 2 of Rule 39, and allow withdrawal of the appeal. Appeals
(b) Except in civil cases decided under the Rule on Summary Procedure, the appeal Decisions of the National Labor Relations Commission is also filed in the
shall stay the judgment or final order unless the Court of Appeals, the law, or these CA but not via 43 but via Rule 65, petition for certiorari under Rule 65 on the
Rules shall provide otherwise. ground of grave abuse of discretion amounting to lack or excess of jurisdiction.
Decisions of the Ombudsman in administrative disciplinary cases are
Section 9. Submission for decision. - If the petition is given due course, the Court of appealed to the CA via a petition for review under Rule 43. However, decisions by
Appeals may set the case for oral argument or require the parties to submit the Ombudsman in criminal and non-administrative cases, the appeal is to the
memoranda within a period of fifteen (15) days from notice. The case shall be Supreme Court under Rule 45.
deemed submitted for decision upon the filing of the last pleading or memorandum
required by these Rules or by the court itself. Relevant Provisions:
Section 3.Where to appeal. — An appeal under this Rule may be taken to the
Court of Appeals within the period and in the manner herein provided, whether the
RULE 43 appeal involves questions of fact, of law, or mixed questions of fact and law. (n)
APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL
AGENCIES TO THE COURT OF APPEALS
Section 4.Period of appeal. — The appeal shall be taken within fifteen (15) days
from notice of the award, judgment, final order or resolution, or from the date of
Relevant Provisions:
its last publication, if publication is required by law for its effectivity, or of the
Section 1. Scope. — This Rule shall apply to appeals from judgments or final orders denial of petitioner's motion for new trial or reconsideration duly filed in
of the Court of Tax Appeals and from awards, judgments, final orders or resolutions accordance with the governing law of the court or agency a quo. Only one (1)
of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial motion for reconsideration shall be allowed. Upon proper motion and the payment
functions. Among these agencies are the Civil Service Commission, Central Board of of the full amount of the docket fee before the expiration of the reglementary

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


Assessment Appeals, Securities and Exchange Commission, Office of the President, period, the Court of Appeals may grant an additional period of fifteen (15) days
Land Registration Authority, Social Security Commission, Civil Aeronautics Board, only within which to file the petition for review. No further extension shall be
Bureau of Patents, Trademarks and Technology Transfer, National Electrification granted except for the most compelling reason and in no case to exceed fifteen
Administration, Energy Regulatory Board, National Telecommunications Commission, (15) days.
Department of Agrarian Reform under Republic Act No. 6657, Government Service
Insurance System, Employees Compensation Commission, Agricultural Invention
Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Section 5.How appeal taken. — Appeal shall be taken by filing a verified petition
Investments, Construction Industry Arbitration Commission, and voluntary arbitrators for review in seven (7) legible copies with the Court of Appeals, with proof of
authorized by law. service of a copy thereof on the adverse party and on the court or agency a quo.
The original copy of the petition intended for the Court of Appeals shall be
Section 2.Cases not covered. — This Rule shall not apply to judgments or final
indicated as such by the petitioner.
orders issued under the Labor Code of the Philippines.
Upon the filing of the petition, the petitioner shall pay to the clerk of court of the
TN: Appeal from the Court of Tax Appeals is no longer with the Court of Court of Appeals the docketing and other lawful fees and deposit the sum of
Appeals but to the Supreme Court because CTA is a co-equal body of the P500.00 for costs. Exemption from payment of docketing and other lawful fees and
CA. The review should be with the Supreme Court via petition for review on the deposit for costs may be granted by the Court of Appeals upon a verified
certiorari under Rule 45 motion setting forth valid grounds therefor. If the Court of Appeals denies the

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 80
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

motion, the petitioner shall pay the docketing and other lawful fees and deposit for Relevant Provisions:
costs within fifteen (15) days from notice of the denial. Section 8. Action on the petition. — The Court of Appeals may require the
respondent to file a comment on the petition not a motion to dismiss, within ten
Section 6.Contents of the petition. — The petition for review shall (a) state the full (10) days from notice, or dismiss the petition if it finds the same to be patently
names of the parties to the case, without impleading the court or agencies either as without merit, prosecuted manifestly for delay, or that the questions raised therein
petitioners or respondents; (b) contain a concise statement of the facts and issues are too unsubstantial to require consideration.
involved and the grounds relied upon for the review; (c) be accompanied by a clearly
legible duplicate original or a certified true copy of the award, judgment, final order Section 9. Contents of comment. — The comment shall be filed within ten (10)
or resolution appealed from, together with certified true copies of such material days from notice in seven (7) legible copies and accompanied by clearly legible
portions of the record referred to therein and other supporting papers; and (d) certified true copies of such material portions of the record referred to therein
contain a sworn certification against forum shopping as provided in the last together with other supporting papers. The comment shall (a) point out
paragraph of section 2, Rule 42. The petition shall state the specific material dates insufficiencies or inaccuracies in petitioner's statement of facts and issues; and (b)
showing that it was filed within the period fixed herein. state the reasons why the petition should be denied or dismissed. A copy thereof
shall be served on the petitioner, and proof of such service shall be filed with the
Section 7.Effect of failure to comply with requirements. — The failure of the Court of Appeals.
petitioner to comply with any of the foregoing requirements regarding the payment of
the docket and other lawful fees, the deposit for costs, proof of service of the Section 10. Due course. — If upon the filing of the comment or such other
petition, and the contents of and the documents which should accompany the pleadings or documents as may be required or allowed by the Court of Appeals or
petition shall be sufficient ground for the dismissal thereof. upon the expiration of the period for the filing thereof, and on the records the
Q: What is a very peculiar characteristic of this particular petition for Court of Appeals finds prima facie that the court or agency concerned has
review under Rule 43? It is only under this 43 where you can find this committed errors of fact or law that would warrant reversal or modification of the
particular principle. award, judgment, final order or resolution sought to be reviewed, it may give due
course to the petition; otherwise, it shall dismiss the same. The findings of fact of
A: Even if your review is on pure question of law, question of fact, or mixed
the court or agency concerned, when supported by substantial evidence, shall be
questions of fact and law, you go to the Court of Appeals. Generally speaking, if the
binding on the Court of Appeals.
review is on pure question of law, you go to the Supreme Court via 45. In 43 which

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


involves quasi-judicial bodies, even if your review will center on pure questions of
law, don’t go to the Supreme Court, but you go to the Court of Appeals via petition Section 11. Transmittal of record. — Within fifteen (15) days from notice that the
for review under Rule 43. petition has been given due course, the Court of Appeals may require the court or
TN: As to the period to file, it is still within 15 days. It can be extended for 15 days agency concerned to transmit the original or a legible certified true copy of the
for the most compelling reasons. File a motion, then pay the docket and lawful fees entire record of the proceeding under review. The record to be transmitted may be
together with the Php 500.00 of course before the expiration of the original 15-day abridged by agreement of all parties to the proceeding. The Court of Appeals may
period. The same requirements also under Rule 42 like Material data rule, certification require or permit subsequent correction of or addition to the record.
of non-forum shopping, certified true copy of the decision. Meaning, the procedures Section 12. Effect of appeal. — The appeal shall not stay the award, judgment,
and the requirements in 42 are also the same with that of 43. If it finds also that final order or resolution sought to be reviewed unless the Court of Appeals shall
there’s merit, it will issue an order requiring the respondent to file his comment, 7 direct otherwise upon such terms as it may deem just.
copies. Practically, in terms of the procedure likewise the same.
Q: What is the difference here of 43 to that of 42? Section 13. Submission for decision. — If the petition is given due course, the
A: In Rule 42, it will stay the decision/judgment unless covered by the Rules on Court of Appeals may set the case for oral argument or require the parties to
Summary Procedure. In Rule 43, it will not stay the decision unless of course the submit memoranda within a period of fifteen (15) days from notice. The case shall
Court of Appeals or the law provides otherwise. Therefore, when you file a petition be deemed submitted for decision upon the filing of the last pleading or
for review under Rule 43, you really have to ask for the issuance of writ of memorandum required by these Rules or by the court of Appeals.
preliminary injunction to temporary stop the execution of judgment.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 81
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

RULE 44 Sec. 9. Appellant’s reply brief. – Within twenty (20) days from receipt of the
ORDINARY APPEALED CASES appellee’s brief, the appellant may file a reply brief answering points in the
appellee’s brief not covered in his main brief.
- These are appeals from decisions of RTC to the Court of Appeals in the exercise of
its original jurisdiction. Sec. 10. Time for filing memoranda in special cases. – In certiorari, prohibition,
mandamus, quo warranto and habeas corpus cases, the parties shall file, in lieu of
Relevant Provision: briefs, their respective memoranda within a non-extendible period of thirty (30)
Sec. 4. Docketing of case. – Upon receiving the original record or the record on days from receipt of the notice issued by the clerk that all the evidence, oral and
appeal and the accompanying documents and exhibits transmitted by the lower court, documentary, is already attached to the record.
as well as the proof of payment of the docket and other lawful fees, the clerk of court The failure of the appellant to file his memorandum within the period therefor may
of the Court of Appeals shall docket the case and notify the parties thereof. be a ground for dismissal of the appeal.
Within ten (10) days from receipt of said notice, the appellant, in appeals by record
on appeal, shall file with the clerk of court seven (7) clearly legible copies of the Sec. 12.Extension of time for filing briefs. – Extension of time for the filing of
approved record on appeal, together with the proof of service of two (2) copies briefs will not be allowed, except for good and sufficient cause, and only if the
thereof upon the appellee. motion for extension is filed before the expiration of the time sought to be
Any unauthorized alteration, omission or addition in the approved record on appeal extended.
shall be a ground for dismissal of the appeal.
Sec. 13.Contents of appellant’s brief. – The appellant’s brief shall contain, in the
Q: Upon receipt by the CA from the RTC of the records of the case, what order herein indicated, the following:
should be done by the clerk of court of the CA? x xx
Docket the case and notify the parties that the records are already received. This is
the same rule with appeals from MTC to RTC. (b) An assignment of errors intended to be urged, which errors shall be separately,
distinctly and concisely stated without repetition and numbered consecutively;
Other Relevant Provision:
Sec. 5.Completion of record. – Where the record of the docketed case is incomplete, x xx
the clerk of court of the Court of Appeals shall so inform said court and recommend Q: In the notice, what should be included?

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


to it measures necessary to complete the record. It shall be the duty of said court to Require the appellant to submit appellant’s brief (7 copies) within 45 days from
take appropriate action towards the completion of the record within the shortest receipt of the notice of the clerk of court, and furnish 2 copies to the appellee.
possible time. Then upon receipt of the appellant’s brief, appellee has to submit appellee’s brief
(7 copies) within 45 days also, and furnish 2 copies to the appellant.
Appellant’s and Appellee’s Briefs
Q: Upon receipt of the appellee’s brief, what may be done by the
Relevant Provisions: appellant?
Sec. 7. Appellant’s brief. – It shall be the duty of the appellant to file with the court, He may file an appellant’s reply within 20 days. It is optional but it becomes
within forty-five (45) days from receipt of the notice of the clerk that all the evidence, important if there is a need to traverse some issues brought about by the appellee
oral and documentary, are attached to the record, seven (7) copies of his legibly in his brief.
typewritten, mimeographed or printed brief, with proof of service of two (2) copies
thereof upon the appellee. General Rule: In ordinary appealed cases, what are submitted are briefs.
Exceptions: However, there are cases where instead of briefs, what is required to
Sec. 8. Appellee’s brief. – Within forty-five (45) days from receipt of the appellant’s be submitted are memoranda (non-extendible period of 30days), and these are: if
brief, the appellee shall file with the court seven (7) copies of his legibly typewritten, the subject of the appeal is one for…
mimeographed or printed brief, with proof of service of two (2) copies thereof upon 1. Certiorari
the appellant. 2. Prohibition

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THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

3. Mandamus
4. Quo warranto RULE 45
APPEAL BY CERTIORARI TO THE SUPREME COURT
Q: Can the period to file appellant’s briefs be extended?
General Rule: No. Relevant Provisions:
Exceptions: If there is good and sufficient cause. Section 1.Filing of petition with Supreme Court. – A party desiring to appeal by
certiorari from a judgment or final order or resolution of the Court of Appeals, the
Q: What should be contained in an appellant’s brief? There is one very Sandiganbayan, Court of Tax Appeals, the Regional Trial Court or other courts
important requirement which, if not found in the appellant’s brief, would whenever authorized by law, may file with the Supreme Court a verified petition for
result in the dismissal of the appeal. What is this requirement? review on certiorari. The petition may include an application for a writ of
It must contain an Assignment of Errors. preliminary injunction or other provisional remedies and shall raise only questions
of law which must be distinctly set forth. The petitioner may seek the same
TN:Unlike in criminal cases where if it appealed, it is open for review in its entirety. provisional remedies by verified motion filed in the same action or proceeding at
In civil cases, CA will only resolve the assignment of errors that the appellant raised any time during its pendency.
in his brief.
Q: What are the decisions which are appealable through petition for
General Rule:CA will only resolve the assignment of errors that the appellant raised review on certiorari under rule 45?
in his brief. Because if appellant did not put an assignment of errors, it is a ground 1. Decisions of the RTC in the exercise of its original jurisdiction, when what
for dismissal of the appeal. are involved are pure questions of law
Exceptions:(cases/matters which can still be treated by the CA even if not assigned) 2. Decisions of the CA
1. Grounds not assigned as errorsbut affecting the jurisdiction over the subject- 3. Decisions of the CTA
matter; 4. Decisions of the Sandiganbayan
2. Matters not assigned as errors on appeal but are evidently plain or clerical
errors within the contemplation of law; TN:Unlike in rule 42 and 43, only 7 copies of the petition must be filed. Here,
3. Matters not assigned as errors on appeal but consideration of which is petitioner must file 18 copies. But same requirement applies to all these rules that
necessary in arriving at a just decision and complete resolution of the case you must furnish a copy to the adverse party and to the court, but remember that
or to serve the interests of justice or to avoid dispensing piecemeal justice; in filing a petition for review on certiorari, no need to include the court as

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


4. Matters not specifically assigned as errors on appeal but raised in the trial respondent.
court and are matters of record having some bearing on the issue submitted
which the parties failed to raise or which the lower court ignored; General Rule:If what is brought via rule 45 is a pure question of law, the findings
5. Matters not assigned as errors on appeal but closely related to an error of fact of the CA, CTA, Sandiganbayan and RTC are supposed to be respected. It
assigned; and will not be disturbed by the SC.
6. Matters not assigned as errors on appeal but upon which the determination
of a question properly assigned is dependent. Q: What is a question of law?
Exists when the doubt or difference arises as to what is the
Q: When is the case deemed submitted for decision? appropriatelawapplicableto a given state of facts.
After submission of the briefs.
Q: What is a question of fact?
Other Relevant Provision: Exists when the doubt or difference arises as to the truth or the falsehood of
Sec. 15. Questions that may be raised on appeal. – Whether or not the appellant has alleged facts, or when the query necessarily invites calibration of the whole
filed a motion for new trial in the court below, he may include in his assignment of evidence.
errors any question of law or fact that has been raised in the court below and which
is within the issues framed by the parties.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 83
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Exceptions:(Memorize!) Sec. 4. Contents of petition. – The petition shall be filed in eighteen (18) copies,
1. When the conclusion is a finding grounded entirely on speculations, surmises with the original copy intended for the court being indicated as such by the
or conjectures petitioner, and shall (a) state the full name of the appealing party as the petitioner
2. When the inference made is manifestly mistaken, absurd or impossible and the adverse party as respondent, without impleading the lower courts or
3. When there is grave abuse of discretion in the appreciation of facts judges thereof either as petitioners or respondents; (b) indicate the material dates
4. When the judgment is based on a misapprehension of facts showing when notice of the judgment or final order or resolution subject thereof
5. When the findings of fact of the CA are conflicting was received, when a motion for new trial or reconsideration, if any, was filed and
6. When CA, in making its findings, went beyond the issues of the case and the when notice of the denial thereof was received; (c) set forth concisely a statement
same is contrary to the admissions of both appellant and appellee of the matters involved, and the reasons or arguments relied on for the allowance
7. When CA manifestly overlooked certain relevant facts not disputed by the of the petition; (d) be accompanied by a clearly legible duplicate original, or a
parties and which, if properly considered, would justify a different conclusion certified true copy of the judgment or final order or resolution certified by the clerk
8. When findings of fact of the CA are contrary to those of the trial court, or of court of the court a quo and the requisite number of plain copies thereof, and
are mere conclusions without citation of specific evidence, or where the such material portions of the record as would support the petition; and (e) contain
facts set forth by the petitioner are not disputed by the respondent, or a sworn certification against forum shopping as provided in the last paragraph of
where the findings of fact of the CA are premised on absence of evidence section 2, Rule 42.
but are contradicted by the evidence of record.
Sec. 5.Dismissal or denial of petition. – The failure of the petitioner to comply with
Q: What are the differences between petition for review on certiorariunder any of the foregoing requirements regarding the payment of the docket and other
Rule 45 and petition for certiorari under Rule 65? lawful fees, deposit for costs, proof of service of the petition, and the contents of
and the documents which should accompany the petition shall be sufficient ground
Rule 45 Rule 65 for the dismissal thereof.
A mode of appeal An entirely independent action The Supreme Court may on its own initiative deny the petition on the ground that
Issue is based on pure question of law Issue is WON the lower court acted the appeal is without merit, or is prosecuted manifestly for delay, or that the
without or in excess of its jurisdiction or questions raised therein are too unsubstantial to require consideration.
with grave abuse of discretion
Review of the judgment, award or final May be directed against an interlocutory Motion for Extension to file Petition
order on the merits order

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Must be made within 15 days judgment Must be filed not later than 60 days from Relevant Provisions:
notice of judgment Sec. 2.Time for filing; extension. – The petition shall be filed within fifteen (15)
Stays the judgment Does not stay the judgment/proceeding days from notice of the judgment or final order or resolution appealed from, or of
unless a writ of preliminary injunction or a the denial of the petitioner’s motion for new trial or reconsideration filed in due
TRO is issued time after notice of the judgment. On motion duly filed and served, with full
Lower court is not impleaded Lower court is impleaded payment of the docket and other lawful fees and the deposit for costs before the
A motion for reconsideration is not A motion for reconsideration is a condition expiration of the reglementary period, the Supreme Court may for justifiable
required precedent reasons grant an extension of thirty (30) days only within which to file the petition.
The court is in the exercise of its The court exercises original jurisdiction
Sec. 3.Docket and other lawful fees; proof of service of petition. – Unless he has
appellate jurisdiction
theretofore done so, the petitioner shall pay the corresponding docket and other
lawful fees to the clerk of court of the Supreme Court and deposit the amount of
TN:Even if in rule 45 the court is not impleaded, petitioner is required to furnish a
P500.00 for costs at the time of the filing of the petition. Proof of service of a copy
copy to such lower court because failure to comply with the one of the requirements
thereof on the lower court concerned and on the adverse party shall be submitted
(furnish a copy, payment of fees, cert of NFS, assignment of error, etc. – same rules
together with the petition.
in 42 and 43) is a ground for the dismissal of the appeal.

Other Relevant Provisions:

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 84
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Q: Can the period to file this petition be extended?


Yes. As long as petitioner will file a motion for extension of time before the expiration RULE 46
of the period and must pay the docket and lawful fees and 500 pesos for costs, and ORIGINAL CASES
attach the proof of payment to his motion. (same rule applies to rules 42 and 43)
Relevant Provisions:
TN: Unlike in Rules 42 and 43 where the extension of time granted for the filing of Sec. 2.To what actions applicable. – This Rule shall apply to original actions for
the petition for review, in rule 45, 30 days is granted as an extension of time. certiorari, prohibition, mandamus and quo warranto.
Except as otherwise provided, the actions for annulment of judgment shall be
Nature of Review; Due Course governed by Rule 47, for certiorari, prohibition and mandamus by Rule 65, and for
quo warranto by Rule 66.
Relevant Provisions: ;
Q: These are original cases filed before what court?
Sec. 6.Review discretionary. – A review is not a matter of right, but of sound judicial Court of Appeals. These are cases which are within the concurrent jurisdiction of
discretion, and will be granted only when there are special and important reasons the CA, RTC and SC. Meaning, you can file these petitions in any of the mentioned
therefor. The following, while neither controlling nor fully measuring the court’s courts, subject to the principle of hierarchy of courts.If you file these with the CA,
discretion, indicate the character of the reasons which will be considered: rule 46 will govern.
(a) When the court a quo has decided a question of substance, not theretofore
determined by the Supreme Court, or has decided it in a way probably not in accord TN: The same contents with petitions in rules 42, 43 and 45. However, unlike in
with law or with the applicable decisions of the Supreme Court; or rule 45 where 18 copies must be filed, in 46, only 7 copies just like in 42 and 43.
(b) When the court a quo has so far departed from the accepted and usual course of Also remember that failure to comply with the requirements is also a ground here
judicial proceedings, or so far sanctioned such departure by a lower court, as to call for the dismissal of the petition.
for an exercise of the power of supervision.
Acquisition of Jurisdiction
Sec. 8.Due course; elevation of records. – If the petition is given due course, the
Supreme Court may require the elevation of the complete record of the case or ;
Relevant Provisions:
specified parts thereof within fifteen (15) days from notice. Sec. 4.Jurisdiction over person of respondent, how acquired. – The court shall
acquire jurisdiction over the person of the respondent by the service on him of its
Q: Is the filing of a petition for review on certiorari a matter of right or a order or resolution indicating its initial action on the petition or by his voluntary

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matter of discretion? submission to such jurisdiction.
No. it is granted only when there are special and important reasons. If petition is
sufficient in form and substance the court may require the filing of a comment, reply, Q: (Review) What are the requisites for the exercise of jurisdiction?
rejoinder, briefs and memoranda as deemed necessary depending on the period 1. Jurisdiction over the subject matter
provided by the Supreme Court after which the case is deemed submitted. 2. Jurisdiction over the territory
3. Jurisdiction over the person of the accused/respondent
Q: What must the court do if gave due course to the petition?
Require the lower court to elevate the records within 15 days. Q: In cases of petitions for certiorari, prohibition, mandamus and quo
warranto, how will the Court acquire jurisdiction over the person of the
respondent?
1. By service upon him of the order
2. His voluntary submission to the court

TN:The order referred to herein is the order of the court finding the petition
sufficient in form and in substance and that the respondent is ordered to submit
his comment within 10 days. If such order is received by the respondent, that is
the time when the court will acquire jurisdiction over him. It is not at the time of

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 85
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

the submission of the respondent’s comment that the court will acquire jurisdiction Extrinsic fraud shall not be a valid ground if it was availed of, or could have been
but it is when he received the order of the court. availed of, in a motion for new trial or petition for relief.

Procedure; Decision Sec. 3.Period for filing action. – If based on extrinsic fraud, the action must be
filed within four (4) years from its discovery; and if based on lack of jurisdiction,
;
Relevant Provisions: before it is barred by laches or estoppel.
Sec. 6.Determination of factual issues. – Whenever necessary to resolve factual
issues, the court itself may conduct hearings thereon or delegate the reception of the Sec. 4.Filing and contents of petition. – The action shall be commenced by filing a
evidence on such issues to any of its members or to an appropriate court, agency or verified petition alleging therein with particularity the facts and the law relied upon
office. for annulment, as well as those supporting the petitioner’s good and substantial
cause of action or defense, as the case may be.
Sec. 7.Effect of failure to file comment. – When no comment is filed by any of the
respondents, the case may be decided on the basis of the record, without prejudice The petition shall be filed in seven (7) clearly legible copies, together with sufficient
to any disciplinary action which the court may take against the disobedient party. copies corresponding to the number of respondents. A certified true copy of the
judgment or final order or resolution shall be attached to the original copy of the
Q: In cases where the CA need to resolve factual issues, can it conduct a petition intended for the court and indicated as such by the petitioner.
hearing by itself?
Yes. It can also delegate to other courts usually the RTC. The petitioner shall also submit together with the petition affidavits of witnesses or
documents supporting the cause of action or defense and a sworn certification that
Q: If the respondent failed to file his comment, can he be declared in he has not theretofore commenced any other action involving the same issues in
default? the Supreme Court, the Court of Appeals or different divisions thereof, or any other
No. There is no declaration of default in this case. tribunal or agency; if there is such other action or proceeding, he must state the
status of the same, and if he should thereafter learn that a similar action or
Q: Will the court dismiss the case on the ground that respondent failed to proceeding has been filed or is pending before the Supreme Court, the Court of
file a comment? Appeals, or different divisions thereof, or any other tribunal or agency, he
No. Rather, the Court will decide the case based on the records. undertakes to promptly inform the aforesaid courts and other tribunal or agency
thereof within five (5) days therefrom.

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


RULE 47 Q: What are the ordinary remedies which must first be availed before
ANNULMENT OF JUDGMENTSOR FINAL ORDERS AND RESOLUTIONS resorting to Annulment of Judgment?
1. New trial
- This is an extraordinary remedy which may be availed of only if the ordinary 2. Appeal
remedies are no longer available not because of the fault of the petitioner. 3. Petition for relief from judgment

Relevant Provisions: TN:So if for example the appropriate remedy was appeal, and the petitioner has
Section 1.Coverage. – This Rule shall govern the annulment by the Court of Appeals lost his opportunity to file an appeal due to his fault, he cannot avail of the remedy
of judgments or final orders and resolutions in civil actions of Regional Trial Courts in this rule.
for which the ordinary remedies of new trial, appeal, petition for relief or other
appropriate remedies are no longer available through no fault of the petitioner. Q: You want to annul the judgment of the RTC, where will you file?
Court of Appeals.
Sec. 2.Grounds for annulment. – The annulment may be based only on the grounds
of extrinsic fraud and lack of jurisdiction. Q: If it is a decision of the MTC which you want to annul?
File it in the RTC where that court is sitting.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 86
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

Q: There are only 2 grounds for annulment of judgment and these are? If the questioned judgment or final order or resolution had already been executed,
1. Extrinsic fraud the court may issue such orders of restitution or other relief as justice and equity
2. Lack of jurisdiction may warrant under the circumstances.

TN:The same grounds for New trial and Relief from judgment.
Q: Procedure is same with ordinary civil cases. So if this is an ordinary
Q: What is extrinsic fraud? civil case, what must the court do to acquire jurisdiction over the person
That which prevented the party from fairly presenting his case in court of the respondent?
Service of summons. And the preferred mode is personal service. If personal
Q: What is the period for filing? service cannot be done, substituted service may be resorted to.
It depends. If it is based on extrinsic fraud, 4 years from its discovery. If it is based
on lack of jurisdiction, before it is barred by laches and estoppel. TN:The sheriff must have at least 3 attempts on different occasions to serve
summons to respondent. (Yuk Ling Hong case)
TN:The lack of jurisdiction herein referred to as a ground for annulment is over the TN:Service by publication not for the purpose of acquiring jurisdiction by the court
person and the subject matter of the case. over the person of the respondent but it is only to comply with the requirement of
due process. It is resorted to only if the action involved is:
TN:Laches – unreasonable delay or neglect to do something which is required of a 1. In rem; or
person within a certain period, as fixed by the rules. (INCLLUDED IN THE 300 million 2. Concerns the personal status of the plaintiff
BRAIN-DAMAGING MIDTERM EXAMS)
Q: Within how many days are summons supposed to be answered?
Q: What are the contents of the petition for annulment? 15 days, because this is governed by the rules in ordinary civil cases. Unlike in
Same contents as in rules 42, 43, 45 and 46. However unlike in the other rules, in cases covered by the rules on Summary Procedure wherein period is only 10 days.
annulment, petitioner must attach affidavits of witnesses if these witnesses would But this rule is not covered by rules on summary procedure so 15 days.
actually prove petitioner’s claim to annul the judgment, or attach docs to support the
cause of action or defense. Q: Usually, in annulment of judgments, the judgment is already
executed. So, what will happen if the judgment is annulled?
Procedure& Judgment The Court should issue orders of restitution or reparation if the decision is already

DVOREF COLLEGE OF LAW|2-A (ABCCCCPR)


; executed. If such judgment is annulled, meaning the petition is found to be
Relevant Provisions: meritorious, the effect of annulment to the judgment subject of the petition
Sec. 6.Procedure. – The procedure in ordinary civil cases shall be observed. Should a depends on the ground upon which it is based.
trial be necessary, the reception of the evidence may be referred to a member of the 1. If based on extrinsic fraud, the CA may direct the RTC concerned to
court or a judge of a Regional Trial Court. conduct another trial as if a timely motion for new trial is actually filed.
2. If based on lack of jurisdiction, the case is refiled at the court upon which
Sec. 7.Effect of judgment. – A judgment of annulment shall set aside the questioned it should be filed.
judgment or final order or resolution and render the same null and void, without But either of the 2 grounds, the original judgment is set aside and vacated.
prejudice to the original action being refiled in the proper court. However, where the
judgment or final order or resolution is set aside on the ground of extrinsic fraud, the
court may on motion order the trial court to try the case as if a timely motion for new
trial had been granted therein.

Sec. 9.Relief available. – The judgment of annulment may include the award of
damages, attorney’s fees and other relief.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 87
THE 1997 RULES OF CIVIL PROCEDURE | 2nd Semester, A.Y. 2017-2018

RULE 48 RULE 50
PRELIMINARY CONFERENCE DISMISSAL OF APPEAL

Relevant Provision: Relevant Provision:


Section 1.Preliminary conference. – At any time during the pendency of a case, the Section 1.Grounds for dismissal of appeal. – An appeal may be dismissed by the
court may call the parties and their counsel to a preliminary conference: Court of Appeals, on its own motion or on that of the appellee, on the following
(a) To consider the possibility of an amicable settlement, except when the case is grounds:
not allowed by law to be compromised; (a) Failure of the record on appeal to show on its face that the appeal was taken
(b) To define, simplify and clarify the issues for determination; within the period fixed by these Rules;
(c) To formulate stipulations of facts and admissions of documentary exhibits, limit (b) Failure to file the notice of appeal or the record on appeal within the period
the number of witnesses to be presented in cases falling within the original prescribed by these Rules;
jurisdiction of the court, or those within its appellate jurisdiction where a motion (c) Failure of the appellant to pay the docket and other lawful fees as provided in
for new trial is granted on the ground of newly discovered evidence; and section 5 of rule 40 and section 4 of Rule 41;
(d) To take up such other latters which may aid the court in the prompt disposition (d) Unauthorized alterations, omissions or additions in the approved record on
of the case. appeal as provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and file the required number of copies of his
Q: Pursuant to the Law on Speedy Trial, in civil cases, what is required brief or memorandum within the time provided by these Rules;
before the case is scheduled for pre-trial? (f) Absence of specific assignment of errors in the appellant’s brief, or of page
It must first be set for preliminary conference usually before the branch clerk of references to the record as required in section 13, paragraphs (a), (c), (d)
court. and (f) of Rule 44;
(g) Failure of the appellant to take the necessary steps for the correction or
RULE 49 completion of the record within the time limited by the court in its order;
ORAL ARGUMENT (h) Failure of the appellant to appear at the preliminary conference under Rule
48 or to comply with orders, circulars, or directives of the court without
Relevant Provisions: justifiable cause; and
Section 1.When allowed. – At its own instance or upon motion of a party, the court (i) The fact that the order or judgment appealed from is not appealable.

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may hear the parties in oral argument on the merits of a case, or on any material - These grounds are already discussed in the previous rules.(Memorize)
incident in connection therewith.
The oral argument shall be limited to such matters as the court may specify in its
order or resolution.

Sec. 3.No hearing or oral argument for motions. – Motions shall not be set for
hearing and, unless the court otherwise directs, no hearing or oral argument shall be
allowed in support thereof. The adverse party may file objections to the motion
within five (5) days from service, upon the expiration of which such motion shall be
deemed submitted for resolution.

- If the CA want that the petition be heard by oral argument, it will just scheduled.
But more often than not, it will not. It will just require the parties to submit their
respective memoranda.

“There is no substitute for preparation in going to Court.” – Judge Tarcelo Sabarre Jr. 88