RULE

DISMISSAL OF ACTION
Section 1
Section 2
Section 3
Section 4
This rule on dismissal of actions is different from the rule on
motion to dismiss under Rule 16: In the latter it is the defendant who is
filing the motion to dismiss while in the format it is a dismissal at the
initiative of the plaintiff.

The dismissal provided for under Rule 17 may be classified into

“dismissal with prejudice” and “dismissal without prejudice”.
Dismissals with prejudice
a) A dismissal by the plaintiff who dismissed in a competent
court an action based on or including the same claim.
b) A dismissal for failure of the plaintiff to appear at the time of
the trial under Section 3.
c) Failure of the plaintiff to prosecute the action for an
unreasonable length of time under Section 3.
d) Failure of the plaintiff to comply with the rules of court or
any order of the court.
Dismissal without of prejudice
 a) A notice of dismissal filed by the plaintiff at any time before
service of the answer under Section 1.
b) A dismissal by the plaintiff after answer provided there is no
compulsory counterclaim alleged by the defendant under
Section 2.
c) A dismissal for lack of jurisdiction

Dismissal of subsequent case is without prejudice when dismissal

of case was based on notice of dismissal by plaintiff who has once
dismissed in a competent court as action based on or involving the
claim. Previous action involving the same claim operates as adjudication
upon the merits, and dismissal of subsequent action is without prejudice.
What would be a dismissal with prejudice is when the notice of
dismissal filed by the plaintiff refers to an action involving the same
claim as the claim in an action previously dismissed at his instance. It
seems all too clear both from Section 1 and 2 of Rule 17 that when the
notice or order of dismissal does not specify that the dismissal be one
“with prejudice” it is one “without prejudice.” It is, therefore, necessary
that for a dismissal to be “with prejudice,” the order must expressly so
state. (Vergara vs. Ocumen, 114 SCRA 446)

Petitioner’s contention that he was denied his day in court holds no

water. Petitioner does not deny the fact the he failed to appear on the
date set for hearing on September 14, 1967 and as a consequence of his
non-appearance, the order of dismissal was issued, as provided for by
Section 3, Rule 17 of the Revised Rules of Court. Moreover, as pointed
out by private respondent in its brief, the hearing on June 11, 1967 was
not ex perte. Petitioner was represented by his counsel on said date, and
therefore, petitioner was given his day in Court. (Leabres vs. Court of
Appeals, 146 SCRA 158-159, Dec. 12, 1986)

the fact remains that on December 24, 1981 respondent Judge

issued moto propio the disputed order dismissing the complaint with
prejudice. Of the trial court have not acted on its own motion and had
awaited the filing of a motion for dismissal by petitioner, the issue of the
filing and sufficiency of the “Bill of Particulars” would have been
properly resolved at the hearing of such a motion. As it was, the effect of
the disputed order was the decide the issue of the validity of the torrens
title in question without a hearing on the merits. In the analogous case of
Piramide vs. Go Guico Sian, the trial Court dismissed the complaint on
motion of the defendants, because of the refusal of the plaintiff to
comply with its order to amend his complaint by joining as defendants
Pedro Piramide and Pilar Piramide who where indispensible or
necessary parties. On appeal, ths Court ruled that to avoid justice, the
dismissal should not operate as an adjudication on the merits. This ruling
may properly be applied to the case at bar. (Destileria Limtuaco & Co.,
inc. vs. Court of Appeals, 143 SCRA 91-92, July 22, 1986)
 RULE 18

DEFAULT

Section 1

An order of default is different from a judgment by default. If the

defendant fails to answer within the reglementary of period, the court
shall upon motion of the plaintiff and proof of such failure issue an order
of default. Thereafter, the court may receive the plaintiff’s evidence ex-
parte and render judgment by default. An order of default may also be
distinguished from judgment by default in that the order of default is
merely interlocutory and the judgment by default is final and appealable
(Sec. 2, Rule 41)

The defendant may also be declared in default even if he has filed

an answer if he fails to appear in the pre-trial conference (Sec. 2, Rule
20) and under the circumstances stated in Sec. 3 (f) Rule 20.

The court cannot motu proprio declare a defendant in default.

There must be a motion to that effect by the plaintiff with proof of
failure by the defendant to file his responsive pleading despite due notice
(Sarmiento vs. Juan, 120 SCRA)

The defendant is not entitled to be served with notice of the motion

to have him declared in default (Phil. British Comp., et al., vs. Angeles,
et al., SCRA , March 10, 1975)

Under the Rule of Summary Procedure in civil cases, if the

defendant fails to answer, a judgment may be rendered by the court motu
propio or on motion of the plaintiff.

The defendant who files his answer in court on time but failed to
serve a copy thereof upon the adverse party may validly be declared in
default.
 Mere non-appearance of defendant at a hearing and to adduce
evidence does not constitute default, where they have already filed their
answer to the complaint within the reglementary period. (Violago vs.
Campos, 114 SCRA 269).

Judgment by default are not looked upon with favor if they are
made without contest from the defendant. Litigants should be given
every opportunity to fight their cases in court, fairly and in the open, so
that where a defendant can give a credible explanation for his failure to
file the answer within the reglementary period, the court should no
hesitate to lift an order of default or vacate the judgment already
rendered thereon. While a petition for relief as a rule is addressed to the
sound discretion of the court, when it appears that a party has a good and
meritorious defense, it would be unjust and unfair to deny him his day in
be reconsidered if there are good reasons that warrant it. (tecson vs.
tecson, 49 O.G. 4308).

Section 2

When an order or default has already been issued by the court and
the case has been set for hearing for the reception of evidence of the
plaintiff ex-parte, and the plaintiff amended substantially his complaint,
the defendant shall be entitled to receive a copy of amended complaint
and to file his answer within the reglementary period provided for by the
Rules of Court. (Section (, Rule 13)

Section 3

The motion of the defendant was not verified, was not filed on
time nor accompanied by affidavit of merit; neither did it allege facts
constituting the meritorious defense. The motion was denied by the
court. (Claridad vs. Santos, 120 SCRA 148)
 Upon his filing of motion to set aside the order of default, party in
default is entitled to notice of further proceedings. (Development Bank
of Rizal vs. Court of Appeals, 156 SCRa 84, Dec. 1, 1987)

Where the promissory notes were signed by defaulting defendants,

it is not a meritorious defense that the real debtor was someone else.
(Del Rosario vs. Court of Appeals, 114 SCRA 169).

Section 4

Where there are several defendant some of whom file answer and
others did not, the rule that the answer of the defendants who were not
declared in default should be considered as the answer of those who
were defaulted does not apply where the defense of the answering
defendants were personal to them, such as the defense of forgery.
Besides, even granting that the answer of defendants Romualdez were
reproduced in the court of first instance, defendant-appellant Raquiza
could not make us of his defense that his (Romualdez’s) signature was
forged because that was a defense personal to him, defendant-appellant
Raquiza must have allege for himself that his signature in the indemnity
agreement was forged before the city court could take cognizance of it.
He failed in this. (Luzon Surety Company, Inc. vs. Corette S.
Magbanua and Daniel Z. Romualdez, 72 Phil. 254).

In a complaint against four defendants where there is a common

question of law and of fact, two defendants answered and two
defendants defaulted if one of the answering defendant die and the case
dismissed against him. Under Section 21 of Rule 3, it will not inure to
the benefit of the defaulting defendants.

Where two defendants are sued under a common cause of action,

plaintiff’s agreement to drop and release and discharge one of the
defendants from the case should extend to the other even if both
defendants have not yet filed any answer. (Rufino Co. vs. Hon. Eficio
B. Acosta, 134 SCRA 185).
 In the instant petition Borlongan assails the decision of the Court
of Appeals, he invokes Matute vs. Court of Appeals L 26751, Jan. 31,
1969, 26 SCRA 768, which estates that that although appeal is the
proper remedy for a defendant who has been validly declared in default,
a party who has been illegally or improvidently declared in default may
pursue a speedy and more efficacious remedy like a petition for
certiorari to have the judgment by default set aside as nullity. The
question, therefore, is whether or not the petitioner was illegally or
improvidently declared in default, he was not. The order of default was
neither illegally nor improvidently issued. (Borlongan vs. Court of
Appeals, 123 SCRA 511)

Affidaviit of merit, not necessary where a motion to lift order of

default is grounded on the very root of the proceedings, the court not
having acquired jursidction over the defendants who were declared in
default. We hold that were a motion to lift an order of default is
grounded on the very root of the proceedings, an affidavit of merit is not
necessary nor essential. This is where the court has not acquired
jurisdiction over the defendants. (Ponio vs. Intermediate Appelliate
Court, 133 SCRA 577, Dec. 20, 1984)

Under the Rules of Court, the remedies available to a defendant in

the RTC are: a) the defendant in default may, at any time after discovery
thereof and before judgment, file a motion, under oath, to set aside the
order of default on the ground that his failure to answer was due to
fraud, accident, mistake or excusable neglect, and that he has a
meritorious defense, (Sec. 3, Rule 18); b) if the judgment has already
been rendered when the defendant discovered the default, but before the
same has become final and executor, he may file a motion for new trial
under Section 1 (a) of Rule 37; c) if the defendant discovered the default
after the judgment has become final and executory, he may file a petition
for relief under Section 2 of Rule 38; and d) he may also appeal from the
judgment rendered against him as contrary to the evidence of to the law,
even if no petition to set aside the order of default has been presented by
him. (Sec. 2, Rule 41). (Lina vs. Court of Appeals, 135 SCRA 637,
April 9, 1985)

Remedy of a party declared in default is to set aside order of

default, not to file a motion to dismiss the complaint. The record shows
that the petitioner filed the said motion to dismiss immediately after her
receipt of the order declaring her in default without first filing a motion
to set aside the order of default. It is the rule that a party declared in
default loses his standing in court and is not entitled to any notice of
subsequent proceeding nor to take part in the trial until he files a motion
to set aside the default order. Petitioner, therefore. Had no right to file
the said motion to dismiss.

While the motion to lift the order of default was filed four (4)
months after the petitioner was declared in default, no judgment has
been rendered in the case as yet so that the filing of the said motion was
within the period prescribed by the Rules. Under Section 3, Rule 18 of
the Rules of Court, a party declared in default may at any time after
discovery thereof and before judgment filed a motion under oath to set
aside the order of default upon proper showing that his failure to answer
was due to fraud, accident, mistake or excusable neglect and that he has
a meritorious defense. (Santos vs. Samson, 110 SCRA 215-216, dec.
14, 1981)

There is no provision of the Rules disqualifying parties declared in

default from taking the witness stand for non-disqualified parties. The
Law does not provide default as an exception. The specific enumeration
of disqualified witnesses excludes the operation of causes of disability
other than those mentioned in ten Rules. It is maim of recognized utility
and merit in the construction of statutes that an express exception
exemption or saving clause excludes other exceptions. (In re Estate of
Enriquez, 29 Phil. 167) as a general rule, where there are express
exceptions, these comprise the only limitation on the operation of the
statute and no other exceptions will be implied. (Sutherland on Statutory
Construction, Fourth edition, Vol. 2A p. 90). The Rules should not be
interpreted to include an exception not embodied therein. (Cavili vs.
Florendo, 154 SCRA, 611-612 October 9, 1987)

A party declared in defaults is considered out of court and cannot

appear therein, adduce evidence, and he heard and for the reason he is
not entitled to notice. (Rule 18, Rules of Court; Lim Toco v. Go Pay 80
Phil. 166). However, ‘loss of standing,’ must be understood to mean
only the forfeiture of one’s right as a party litigant, contestant or legal
adversary A party in default loses his right to present his defense, control
the proceedings, and examine or cross-examine witnesses. He has no
right to expect that his pleadings would be acted upon by the court nor
may he object to nor refute evidence, which contemplates a
disqualification to be a witness or a deponent in a case. Default does not
make him an incompetent. (Cavili vs. Florendo, supra)

Failure to file within the extension period sought and to question

the order of default till after the lapse of several months constitutes
inexcusable neglect to file answer. The trial court nevertheless gave it
five days from July 14, 1980, within which to file its answer. But did
not. It did so only on July 26, 1980, after the expiry of the original and
extended periods, or twenty-one days after the July 5, deadline. As a
consequence, the trial court, on motion of the private respondent filed
only July 28, 1980, declared the petitioner in default. This was done
almost one month later, on August 25, 1980. Even so, the petitioner
made no move at all for two months thereafter. It was only on October
27, 1980, more than one month after the judgment of default was
rendered by the trial court on September 26, 1980, that it file a motion to
lift the order of default and vacate the judgment by default. The pattern
of inexcusable neglect, if not deliberately delayed, is all too clear. The
petitioner has slumbered on its right and awakened too late. Default
judgment will not be lifted if defendant has no valid defense. Besides,
the petitioners in Trajano had a valid defense against the complaint filed
against them, and this justified a relaxation of the procedural rules to
allow full hearing on the substantive issues raised. In the instant case, by
contrast, the petitioner must just the same fail on the merits even if the
default orders were to lifted. As the respondent Court observed.
“Nothing would be gained by having the order of default set aside
considering the appellant has no valid defense in its favor.”
(Development Insurance Corporation vs. Intermediate Appellate
Court, 143 SCRa 62, July 16, 1986)

Section 5

Where claim alleged in the complaint was p182,994.60 only, the

fact that the evidence shows defendant’s liability to be more than that
will not justify a higher award. While the evidence shows that the
amount due from COB Group Marketing is P184,509.60 as of July 31,
1971 (18-19 Record on Appeal). This latter amount should be the one
awarded to Keller because a judgment entered against a party in default,
cannot exceed the amount prayed for (Sec. 5, Rule 18, Rules of Court)
(Edward A. Keller & Co. Ltd. vs. COB Group Marketing, Inc. 141
SCRA 88, Jan. 16, 1986)

Section 6

The policy of Article 101 of the New Civil Code, calling for the
intervention of the state attorneys in case of uncontested proceedings for
legal separation (and of annulment of marriage, under Article 88) is to
emphasize that marriage is more than a mere contract; that it is a social
institution in which the state is vitally interested, so that its continuation
or interruption cannot be made to depend upon the parties themselves
(Civil Code Article 52; Adong vs. Cheong Gee, 43 Phil. 43; Ramirez vs.
Gmur, 42 Phil. 855; Goitia vs. Campos, 35 phil. 252) It is consonant
with this policy that the inquiry by the fiscal should be allowed to focus
upon any relevant matter that may indicate whether the proceedings for
separation or annulment are fully justified or not. (Brown vs. Yambao,
102 Phil. 168-169).
 RULE 19

JUDGMENT ON THE PLEADINGS

Section 1

Section 1, Rule 19 of the Rules of Court provides that where an answer

“fails to tender as issue, or otherwise admits the material allegation of
the adverse party’s pleading, the court may, on motion of that party,
direct judgment on such pleading.” The answer would fail to tender an
issue of course if it does not comply with the requirements for a specific
denial set out in Section 10 (or Section 8) of Rule 8; and it would admit
the material allegations of the adverse party’s pleadings not only where
it expressly confess the truthfulness thereof but also if it omits to deal
with them at all. (Vergara Sr. vs, Suelto, 156 SCRA 753-755, December
21, 1987)

If an answer does comply with the requirements of Section 10 of

Rule 8 and Section 4 and % of Rule 56, judgment on the pleadings will
not be proper. Now, if an answer does in fact specifically deny the
material averments of the complaint in the manner indicated by said
Section 10 of Rule 8, and/or asserts affirmative defenses (Allegations of
new matter which, while admitting the material allegations of the
complaint expressly or impliedly, would nevertheless prevent or bar
recovery by the plaintiff in accordance with Sections 4 and 5 of Rule 6 a
judgment on the pleadings would naturally not be proper. (Vergara Sr.
vs. Sueto, supra)

Where the answer does not merely state that the defendant
specifically denies each and every allegation contained in each
paragraph of the complaint, but deals specifically with each material
allegation of fact, either by admitting it or by denying the same or by
stating that he is without knowledge or information sufficient to form a
belief as to the truth thereof and even contains some affirmative defenses
and counterclaims it is deemed a substantial compliance with law. In
order words if the answer contains specific denials and defense or
tenders an issue on the litigated matter, a judgment on the pleadings is
not proper. The trial court committed no error in denying petitioner’s
motion for jusgment on the pleadings and in ordering a full blown trial
on the merits. (Lamis vs. Valenzuela, G.R. No. 76762, 2 Nov. 87)

This appeal, originally filed in the Court of Appeals, was certified

to us as the case involves a legal question, to writ: whether or not the
City Court of Cebu erred in issuing a judgment on the pleadings on the
ground that the defendant failed to enter a verified specific denial of the
genuineness and due execution of the written instruments which were
made the basis of the action pursuant to Section 7, Rule 8 of the Rules of
Court. Considering that the substance of said documents were properly
alleged in, and copies thereof attached to, the complaint and that
defendant’s failure to deny the same under oath resulted in the implied
admission of their authenticity and due execution (Section 8, Rule * of
the Rules of Court), the Court holds that the judgment on the pleadings
rendered by the City Court was appropriate. (Young vs. Young, 124
SCRA 897, No. L-35000, September 30, 1983)
 RULE 20

PRE-TRIAL

Section 1

The requirement that the pre-trial shall be scheduled “after the last
pleading has been filed” (Section 1, Rule 20, Rules of Court0 is intended
to fully apprise the Court and the parties of all the issues in the case
before the pre-trial is conducted. It must be remembered that the issues
may only be ascertained from the allegations contained in the pleadings
filed by the parties. The last answer to the last pleading of claim that had
been filed in the case may either be the complaint, a cross-claim, a
counterclaim or a third party complaint, etc. (Secs. 2 and 11, Rule 6,
Rules of Court). Any pleading asserting a claim must be answered, and
the failure to do so by the party against whom the claim is asserted
renders him liable to be declared in default in respect of such clai (Sec.
10, Ibid). there are, however, recognized exceptions to the rule, making
the failure to answer a pleading or claim as a ground for default
declaration, such as the failure to answer a complaint in intervention
(Sec. 2 ©, Rule 12, Rules of Court), or a compulsory counterclaim so
intimately related to the complaint such that to answer the same would
merely require a repetition of the allegations contained in the complaint.
(Sarmiento vs. Juan, 120 SCRA 404)

Pre-trial is now mandatory in the Metropolitan Trial Court,

Municipal Trial Court and Municipal Circuit Trial Court in accordance
with the interim Rules of Court. In cases falling under summary
procedure, the parties are mandated to appear in the preliminary
conference the purpose of which is almost similar to pre-trial.

The main purpose of pre-trial is for the parties to reach an amicable

settlement to prevent protracted litigations, when an amicable settlement
or compromise is not reached, the Court will resort to the other purpose
of pre-trial as provided for under this Section. The Court may also
require the parties to take the deposition of witnesses and other modes of
discovery as provided for under Rules 24-28.

Submission to arbitration is covered by Republic Act. No. 876 and

Articles 2028-2041 of the Civil Code.

Section 2

The declaration of default on the part of the petitioner may not be

considered as entirely proper under the circumstances surrounding the
same. It is undenied that nobody appeared at the pre-trial except the
counsel for the private respondent. Under settled doctrines, not even the
private respondent may be considered as having appeared at the said
pre0trial, it not having made appearances thereat through a duly
authorized representative. In such situation, the trial court could have
acted more properly if it dismissed the case, or declared the private
respondent as plaintiff (erroneously stated by it as “non-suited”). This is
because while the Court may declare the plaintiff non-suited for non-
appearance at the pre-trial or dismiss the case for his non-appearance at
the trial withtout motion on the part of the defendant (Sec. 3, Rule 17),
the latter may not be declared in default without such motion on the part
of the plaintiff. (Sarmiento vs. Juan, supra)

These circumstances proscribe the application to the controversy at

bar of the doctrine in Atlantic Manual. The defendant conduct in this
case strongly indicates the absence of any valid defense on its part
against the plaintiffs’ claims: the defendant failed to appear for pre-trial
despite notice, not once, but twice and was in consequence twice
declared in default. The Lack of any meritorious defense on its part was
in fact confirmed by the declaration of the Court of Appeals. (Olympia
Business Machines Co. (Phil.) Inc. vs. E. Razon, Inc. 155 SCRA 208,
October 28, 1987)

Petitioners had been properly notified of every court proceeding.-

It is undisputed that the trial court was liberal in granting several
postponements of the pre-trial conferences before it was prompted to
declare petitioners in default during the hearing on September 10, 1976.
As earlier stated. Petitioners were duly notified of every proceeding by
the Court. Having been properly notified, it is up to them to choose
whether or not to put up their defense. Certainly, due process was never
denied the petitioners. (Ocampo vs. Arboleda, 153 SCRA 374-375,
August 31, 1987)

The honorable Court of Appeals ruled that said compromise

agreement cannot be challenged as having been entered into without
previous consent of complaints’ mother because there was the Special
Power of Attorney. Nor could she validly assail the validity of the
Compromise Agreement on the pretense that the same was executed by
her counsel, Atty. Antonio Quirino, without previously consulting her or
without her knowledge and consdent. For the record shows that she had
executed as special power of attorney in favor of Atty. Quirino
authorizing the latter to appear for her in connection with Civil Case No.
129823 and, among others, “to offer and enter into any compromise and
to sign the compromise agreement.” x x x x.” Respondent Judge,
therefore, correctly denied the petition for relief as there was no showing
that petitioner had entered into the Compromise Agreement by fraud,
mistake, force or violence. (Sanglay vs. Quirino, 151 SCRA 301, June
30, 1987)

Section 3

Trial court may render partial judgment on the basis of the

“stipulation of facts” entered into by the parties during pre-trial if facts
are found upon which a summary judgment or judgment on the
pleadings may be made.- It will be observed that the “Stipulation of
Facts” was submitted to the trial court on the second day of pre-trial.
One of the express purposes of pre-trial conference is to consider the
possibility of obtaining stipulations or admissions of facts and of
documents to avoid unnecessary proof. The trial court may render
judgment on the pleadings or a summary judgment as justice may
require of at the pre-trial it finds that facts exist upon which a judgment
on the pleadings or a summary judgment may be made. This is precisely
what the trial court did in these cases: it rendered a summary judgment
on the basis of the pleadings and the facts agreed upon by the parties,
together with the documents pertinent thereto and forming part of the
stipulation of facts. Those facts are nothing less than judicial admissions
which the parties’ respective lawyers could certainly make, and, not
having been shown or even pretended to have been made through
palpable mistake, do not require proof and cannot be contradicted.
(Philippine Virginia Tobacco Administration (PVTA) vs. Delos
Angeles, 61 SCRA 490, December 26, 1974)

Section 4

The trial court issued a pre-trial order, stating that, by agreement of

the parties, Management Aids should pay within thirty days from
January 14, 1976 the back rentals for seven months and should continue
to pay the stipulated rentals. That order set at rest the question of rentals
pendent lite or the reasonable compensation for the use and occupation
of the leased premises.

More than two years later, or on May 20, 1978, the trial court
issued an order, requiring the president and general manager of
Management Aids to pay the Miguel lessors within sixty days from
notice the sum of P46,000 as agreed upon at the 1976 pr-trial
conference, otherwise he would be punished for contempt of court (p.
17, Rollo).

That order was assailed by certiorari in the Court of Appeals which

in its decision of March 24, 1989 sustained the order because of the
1976 pre0trial agreement. Management Aids appealed to this Court. The
Miguels did not file any comment and brief.

Management Aids contends that the trial court erred in holding that
under the pre-trial order it would be liable to pay rental excess of P1,000
a month and that it should pay rentals during the pendency of the
rescission case. It argues that the Appellate Court took a myopic view of
the pre-trial order by interpreting it literally.

We hold that the petition is devoid of merit. It should not have

been given due course. No grave abuse of discretion was committed by
the trial court in issuing the 1978 contempt order. It was sanctioned by
the 1976 pre-trial order which was in the nature of a compromise on the
rentals during the pendency of the suit. In that sense, the pre-trial order
has the force of res judicata. (M & M Management Aids, Inc. vs.
Court of Appeals 130 SCRA 226-227, June 29, 1984)

Delimitation of issues during the pre-trial agreed upon by one

party binds said party to the delimitation.- The petitioner, therefore,
should be bound by the delimitation of the issues during the pre-trial
because he himself agreed to the same. (Munasque vs. Court of
Appeals, 139 SCRA 533, November 11, 1985)

In the case of Filoil Marketing Corporation vs. Dy Pac & Co., Inc.,
April 15, 1988 (160 SCRA 133, 134), the Supreme Court laid down the
following doctrine:

“There is no law which compulsory requires litigants to stipulate at

pre-trial on the facts issues that may possibly crop up in a particular
case, upon pain of dismissal of such case. The process of securing
admissions whether of facts or evidence is essentially voluntary, since
stipulations of facts, like contracts, bind the parties thereto who are not
allowed to controvert statements made therein. The trial court may, of
course, advise and indeed urge the parties during the pre-trial conference
to try to arrive at a stipulation of facts principally for their own
convenience and to simplify subsequent proceedings by identifying
those facts which are not really controverted and do not need to be
proved.”
 “Courts, however, cannot compel the parties to enter into an
agreement upon the facts. Where the parties are unable to arrive at a
stipulation of agreed facts and do not reach an amicable settlement of
their controversy, the court must close the pre-trial proceedings and go
forward with the trial of the case. The court a quo, therefore, committed
serious or reversible error in dismissing appellant’s appeal from the then
City Court of Manila solely upon the ground that the parties had failed to
comply with the court’s Order to submit a stipulation of facts. The trial
court’s desire speedily to dispose of the case which had been pending for
almost four (4) years in that sala is understandable and praiseworthy; but
it cannot justify the Order of dismissal.”
 RULE 21

SUSPENSION OF ACTIONS

Section 1

Section 2

Section 3

Section 4

Aside from the six (6) actions which cannot be compromised

enumerated under Section 1, parties to an action any time before the
dates set for pre-trial may file a petition for suspension of the action
within a period not longer than sixty (60) days. If the parties do not avail
of Rule 21 they may also ask for suspension of the action during the pre-
trial (Rule 20) if there is possibility for them to reach an amicable
settlement.
 RULE 22

CALENDAR AND ADJOURNMENTS

Section 1

Section 2

Section 3

NOTES

The rule on postponement in criminal cases is different and is

governed by Section 2, Rule 119.

Section 4

Section 5

As a general rule, a medical certificate under oath is required

before the hearing of the case may be postponed; however, in the case of
Sarmiento vs. Juan, 120 SCRA 404, the Supreme Court held that
medical certificates may not be necessary as illustrated in a situation like
the following:

“The petitioner also has valid reason to complain about the

apparent over anxiousness of the trial court to finish the case in
summary fashion. The petitioner had manifested to the Court that
his inability to appear before the pre-trial was due to a sudden
ailment that befell him while he was preparing to go to Court.
While it is true that the motion for postponement was not
accompanied by a medical certificate, it must be considered that
not every ailment is attended to by a physician, or if so, a medical
certificate under oath as required by the Rules could be secured
within the limited time available. There has been no refutation of
 the cause of the non-appearance of the petitioner as claimed by the
latter. Said cause had been reiterated under oath in the petitioner’s
motion for reconsideration to which the trial court turned a deaf
ear. Any suspicion that the petitioner was merely suing for delay is
readily dispelled by the fact that the pre-trial was being set for the
first time, and that the petitioner took immediate steps against the
refusal of the trial court to set aside the default declaration and to
pursue remedies steadfastly against the same in the higher
tribunal.”

The trial Court denied petitioner due process where it proceeded to

hear evidence of mortgage creditor ex parte despite absence of petitioner
who was ill and in refusing to allow her to cross-examine witnesses.
(Policarpoi vs. Court of Appeals; No. L-55900, April 27, 1984, 129
SCRA 51)

Section 6

Section 7
 RULE 23

SUBPOENA

Section 1

Section 2

Section 3

Section 4

If a subpoena is directed to a person requiring him to attend and

testify at the hearing and trial of an action or any investigation, it is
called subpoena and testificandum, and if the person, aside from
testifying is required to bring books, documents, or other things under
his control, it is called subpoena duces tecum.

A party is entitled to issuance of subpoena duces tecum when there

is clear and unequivocal proof that the book or document to be produced
are relevant and material. Well-settled in our jurisprudence is that, in
order to entitle a party to the issuance of a “subpoena sub tecum”, it
must appear, by clear and unequivocal proof, that the book or document
sought to be produced contains evidence has been so designated or
described that it may be identified. A “subpoena duce tecum” once
issued by the court may be quashed upon motion if the issuance thereof
is unreasonable and oppressive, or the relevancy of the books,
documents or things does not appear, or if the persons in whose behalf
the subpoena is issued fails to advance the reasonable cost of production
thereof. (Universal Rubber Products, Inc. vs. Court of Appeals; no.
L-30266, June 29, 1984, 130 SCRA 104)

Section 5

Section 6
 Section 7

Section 8

Section 9

Attendance of witnesses at trial.- Excusing a witness from

appearance before a Court, judge or other officer of the province in
which he resides if the distance exceeds 50 kilometers from his place of
residence to the place of trial by the usual course of travel, applies solely
to civil cases and not to criminal cases. Consequently, the refusal by
respondent Judge, in the case at bar, to grant the prosecution’s motion to
arrest a material witness in a criminal case, or in the alternative, to cite
him for contempt , amounted to grave abuse of discretion. (People vs.
montejo, 21 SCRA 722, October 31, 1967)

Section 24 of Rule 24 provides that if the party giving the notice of

the taking of a deposition of a witness fails to serve a subpoena upon
him, and the witness because of such failure does not attend , and if
another party attends in person or by attorney because he expects the
deposition of the witness to be taken, the court may order the party
giving the notice to pay to such other party the amount of the reasonable
expense incurred by him and his attorney in so attending, including
reasonable attorney’s fees.

Section 11 of Rule 141 provides that (a) Witnesses in the Supreme

Court, in the Court of Appeals and in Courts of First Instance, either in
actions or special proceedings, shall be entitled to two persons per day
and ten centavos for each kilometer of travel in going to the place of trial
and coming from their homes within the Philippines by the nearest route
of usual travel, or in lieu of said mileage actual traveling expenses by the
cheapest means of transportation; (b) Witnesses before justices of the
peace courts, municipal courts, and other inferior tribunals shall be
allowed one peso per day and the travel fees above provided; (c) fees to
which -witnesses may be entitled in a civil action shall be allowed, on
the certification of the clerk of court or judge of his appearance in the
case. A witness shall not be allowed compensation for his attendance in
more than one case or more than one side of the same case at the same
time, but may elect in which of several cases or on which side of a case,
when he is summoned by both sides, to claim his attendance. A person
who is compelled to attend court on other business shall not be paid as
witness.

Under Section 16 of the same Rule, the Republic of the Philippines

is exempt from paying the legal fees provided in this Rule.

If the witness is residing outside the province or place of trial he

cannot be bound by a subpoena issued by the court unless the distance
be less than fifty (500 kilometers from his place of residence to the place
of trial by the usual course of travel; therefore, if a witness is
subpoenaed to appear by a court in Manila and hi is a resident of Baguio
City, he will not be bound by subpoena because Baguio City is more
than fifty (50) kilometers from Manila. However, if the witness is issued
a subpoena by a court in Lucena City in Quezon province and hi is a
resident of Maclelon, he is bound to obey the subpoena issued the
Lucena City Court because his residence is within the province of
quezon, even if the distance between the two places is more than fifty
(50) kilometers.

Section 10

Section 11

Any person who is present in Court may be required to testify even

though there is no previous subpoena issued by the Court.

In this case where a subpoena is issued properly to a witness and

he disobeyed the same, he will be liable for indirect contempt under
Rule 71.
 RULE 24

DEPOSITIONS AND DISCOVERY

Section 1

The rules on discovery (rules 24, 25, 26, 27, 28 and 29 of the
Revised Rules of Court) are intended to enable a party to obtain
knowledge of materials facts within the knowledge of the adverse party
or of third parties through depositions; to obtain knowledge of material
facts or admissions from the adverse party regarding the genuineness of
relevant documents or relevant matters of fact through requests for
admission; to inspect relevant documents or objects and lands or other
property in the possession of control of the adverse party; and to
determine the physical or mental condition of a party when such is in
controversy. This mutual discovery enables a party to discover the
evidence of the adverse party and thus facilities an amicable settlement
or expendites the trial of the case. All the parties are required to lay their
cards on the table so that justice can be rendered on the merits of the
case. Trial judges should, therefore, encourage the proper utilization of
the rules on discovery. However, recourse to discovery procedures is not
mandatory. If the parties do not choose to resort to such procedures, the
pre-trial conference should be set pursuant to the mandatory provisions
of Section of Rule 20, (Koh vs. Intermediate Appellate Court, 144
SCRA 259-261, September 23, 1986)

It is clear, therefore, that the different modes of discovery that may

be availed of by a party to an action are:

(a) Deposition under Rule 24

(b) Interrogatories to parties under Rule 25
(c) Admission by adverse parties under Rule 26
(d) Production or inspection of documents and things under Rule
27
(e) Physical and mental examination of persons under Rule 28
 Fishing for evidence is not prohibited but allowed under the
present Rules of Court on Discovery and Deposition, for the reason that
it enables litigants adequately to prepare their pleadings and for trial,
this, in turn, resulting often in the simplification or reduction of triable
issues. If this is the practice under the Rules of Court, a fortiori it may be
allowed in courts of the neture of the respondent court whose
proceedings are not even strictly subject to the ordinary rules of
procedures. (Caltex (Phils.) Inc. vs. Caltex Dealers Ass.of the Phil.,
Inc. 27 SCRA 1211, April 29, 1969)

The depositions under this rules are classified into deposition upon
oral examination under Section 15 and deposition under written
interrogatories under Section 25. The deposition to perpetuate evidence
for purposes of an expected action and/or anticipated appeal are called
depositions perputuam rei memoriam and is provided for under Rule
134.

Section 2

Section 3

Section 4

Section 5

Section 6

Section 7

Section 8

Similar more or less to a formal hearing, a deponent may be

examined regarding any matter, not privileged, which is relevant to the
pending action.
 The officer before whom the deposition is taken, unlike a Judge,
has no power to rule upon objections to the question. The objection
should only be noted by the officer (Section 17).

Like a formal trial, the parties to the action may examine and
cross-examine deponents as permitted under Rule 132.

In the case of Vda. De Sy-Quia vs. Court of Appeals (125 SCRA

722, November 25, 1983), the facts which are related hereunder, the
Supreme Court held: Caridad Cruz Vda. De Sy-Quia filed a motion for
the taking of the deposition of Doctor Cue, Clinical Laboratory, Pasay
City. The motion was granted by the lower court. The deposition was
taken on January 25, 1975 over the opposition of jose Sy-Quia’s
counsel. He objected to its presentation in court as evidence since
Doctor Cue could have testified in court. Doctor Cue’s deposition
purportedly proved that taking into account the groups and types of Jose
Sy-Quia, Pedro M. Sy-Quia and Remedios Borres, which, as already
noted, he examined in 1961, Jose could not have been the son of Pedro
M. Sy-Quia and Remedios.

The lower court in its order of May 14, 1975 found that there is no
indubitable writhing showing that Jose was an acknowledge natural
child of Pedro M. Sy-Quia, that his action for compulsory recognition
should have been brought during Pedro’s lifetime and that the result of
the blood tests explains why Pedro omitted Jose in his will.

Jose appealed to the Court of Appeals which in its aforementioned

1982 decision held that Jose’s theory was that he was already a
voluntarily acknowledged natural child under Article 278 of the Civil
Code.

However, the Appellate Court ruled that the deposition of Doctor

Que was inadmissible evidence. It remanded the case to the trial court
and directed it to subpoena Doctor Cue to testify on the subject of his
disposition and to be cross-examined by Jose Sy-Quia’s counsel.
 Mrs. Sy-Quia appealed to the Supreme Court, which ruled that the
Court of Appeals was correct that Doctor Cue’s deposition is
inadmissible under Section 4, Rule 24 of the Rules of Court. But he
should testify before the Appellate Court which is now authorized to
receive evidence under Section 9 of the Judiciary Reorganization Law,
Batas Pambansa Bg. 129.

Excusing a witness from appearance before a court, judge or other

officer of the province in which he resides if the distance exceeds 50
kilometers from his place of residence to the place of trial by the usual
course of travel, applies solely to the civil cases and not to criminal
cases. Consequently, the refusal by respondent Judge, in the case at bar,
to grant the prosecutor’s motion to arrest a material witness in a criminal
case, or in the alternative, to cite him for contempt, amounted to grave
abuse of discretion. (People vs. Montejo, 21 SCRA 722)

The taking of a disposition is discretionary with the trial court. In

certain cases, there may be sufficient grounds for taking the deposition
of a party or witness, such as his impending departure from the country,
or that certain pertinent facts could not be elicited except by means of a
disposition. (Jacinto Amparo, Phil. P. 633, August 25, 1953)

Under Section 4, the deposition of a witness may be used by any of

the parties for the purpose of impeachment; the deposition of a party
may be used by the adverse parties for any purpose, using it as his own
evidence or for impeachment purposes. Under Section 4(c), the
deposition of a witness whether or not a party may be used by any party
for any purpose under any of the five (5) circumstances enumerated
therein.

Section 9

Section 10

Section 11
 Section 12

Section 13

Section 14

A deposition may be taken before he following:

(a) Within the Philippines before any Judge or Notary Public;

(b) In a foreign country before a secretary of embassy or
legation, consul general, consul, vice-consul, or consular
agent of the Philippines or before such person or officer
commissioned under latter rogatory;
(c) By stipulation of the parties in writing, before any person
authorized to administer oath;

Letters rogatory are issue dto a court in a foreign country by

a Philippine Court authorizing the foreign court to take the
deposition upon written interrogatories of a person within the
jurisdiction of said court.

Section 15

Section 16

Section 17

Section 18

Section 19

Section 20

Section 21
 Section 22

Section 23

Section 24

Under Section 15, a party may avail of deposition upon oral

examination within the Philippines. Deposition upon oral examination
may be taken any person authorized under this Rule. The party initiating
the taking of the deposition shall give proper notice to all aprties
concerned including their respective counsel.

When the deposition of a witness under Section Rule 25 of the

Rules of Court, the party objecting to a question claimed to be
immaterial or irrelevant may object thereto, but such party cannot
prevent the witness from answering the question because the relevancy
or materiality will only be decided upon the trial when the deposition is
introduced as evidence. An exception to this general rule obtains when
the questions propounded are annoying, embarrassing, or oppressive to
the deponent under Section 16, in which case the matter may be
submitted to the trial judge for a ruling, or when the constitutional
privilege against self-incrimination is invoked by the deponent or by
counsel on his behalf, to enforce the constitutional privilege defined in
Rule 24 in which latter case also the staying hand of the trial judge may
also be demanded. (Isabela Sugar Co., Inc., vs. Macadaeg, et al., Phil.
93 pp. 995-996, October 28, 1963)

There can be no question that the trial court has jurisdiction to

direct, in its discretion, that a deposition shall not be taken, if there are
valid reasons for so ruling. That the right of a party to take depositions
as means of discovery is not exactly absolute is implicit in the provision
of the Rules of Court in Sections 16 and 18 or Rule 24 which are
precisely designed to protect parties and their witnesses, whenever in the
opinion of the trial court, the move to take their depositions under the
guise of discovery is actually intended to only annoy, embarrass or
oppress them. In such instances, these provisions expressly authorize the
court to either prevent the taking of a deposition or stop one that is
already being taken. (Caguiat vs. Torress, No. L-25481, 30 SCRA
106,. October 31, 1969)

Considering that the deposition was taken long after the answer
had been filed and served, there was no need to seek the approval of the
trial court for the taking of the deposition, notice of such taking being
sufficient. (Veran vs. Court of Appeals, 157 SCRA 438, January 29,
1988)

It is not believed that the manner in which the depositions was

delivered to the Clerk of Court so affected its integrity as to render it
inadmissible. After all there is no protense that the appellant did not
contract the indebtedness for the collection of which he is being sued or
that the same has been paid, the only important issue posed in the appeal
being whether or not the appellee is the real party in interest. (American
Express Co. Inc. vs. Santiago, No. L-27058, 49 SCRA 75, January
17, 1973)

Section 25

Section 27

Section 28

Section 29

Ordinarily, oral examination is preferable to written

interrogatories, because it is more effective in securing complete and
responsive answers. But the facts sought by the examination may, at
times, be proper for written interrogatories, which have the advantage of
saving time, effort and expenses, particularly when the witness is at a
distant place. For this reason, this rule allows the use of either method at
the option of the proponent.
 Under Section 25, the deposition of the witness upon written
interrogatories shall be taken as if it were upon oral examination, the
difference being that the questions to be propounded are those appearing
in the written interrogatories. Objections should be made in the manner
and at the time stated in Sections 17 and 29 of this Rule.

Under Section 29(a), if a party served with notice does not agree to
the time given him for attending the taking of the deposition, he must
promptly make his objection thereto in writing and serve it upon the
party giving the notice. If the latter refuses to fix a different time the
party served may file a motion with the court wherein the action is
pending for the enlargement or shortening, under Section 15 of this
Rule, of the time so given. According to the above provision, objection
not made promptly is deemed waived.

Under Section 29(c), as a general rule, objections to the

admissibility of evidence need not be made during the taking of the
deposition. The officer, after all, has no authority to rule on such
objections. There are, however, grounds of objections which may be
obviated or removed if made known during the taking of the deposition.
For example, an objection to private document on the ground of its
unproved authenticity, may be removed immediately by the testimony of
the deponent himself who executed the document. Objection to the
testimony of the deponent as to a contract which must be in writing
according to the statute of frauds may be obviated by the testimony of
the deponent himself regarding the loss of the document. Objections of
this kind should be made during the taking of the deposition, so as to
give the other party an opportunity to supply the deficiencies of his
proof.; and the rule is that if such objections are not then made they are
deemed waived. (Moran, Rules of Court, Vol. 2, 1979 Edition, pp. 65-
73)
 RULE 25

INTERROGATORIES TO PARTIES

Section 1

Section 2

Section 3

Section 4

Section 5

Interrogatories under this Rule are made on a party-to-party basis

unlike depositions upon written interrogatories under Section 25, Rule
24, where the direct and cross-examination questions are answered by a
deponent before an officer authorized to take the deposition.

The interrogatories are proper contrary to the observations of

plaintiff that they deal with “facts clearly seen from the allegations of
the complaint. . .(hence frivolous and need not be answered).” The
interrogatories sought specific details of the title relied upon by plaintiff,
which is certainly proper, there being no mention of any title to the
plaintiff in the complaint. Under the rules, it is the duty of a plaintiff x x
x otherwise his case may be dismissed either upon motion of his
adversary or of the court itself. (Arellano vs. CFI of Sorsogon, Branch
I, No. L-34897, July 15, 1975, 65 SCRA 46)

Courts are expressly authorized to declare a defendant default for

failing to serve answer to written interrogatories under Rule 25 of the
Rules of Court after service of such interrogatories, upon motion of
plaintiff. (Cason vs. San Pedro, 9 SCRA 925)
 RULE 26

ADMISSION BY ADVERSE PARTY

Section 1

Section 2

Section 3

Section 4

The party upon whom a request for admission is served whether or

not an answer has been presented, is bound to serve upon the party
requesting the admission a sworn statement either denying specifically
in the matters of which an admission is requested or setting forth in
details the reasons why he cannot truthfully either deny or admit those
matters. If the party to whom a request for admission is directed fails to
answer the same, each of the matters for admission is requested shall be
deemed admitted. (Motor Service Co., Inc., vs. Yellow Taxicab Co.,
Inc. March 29, 1955)

When plaintiff-appellant failed to make any answer to the request

for admission within the period prescribed by the rules, defendant-
appellee Ker & Co. filed a Motion to Dismiss on Affirmative Defense,
dated July 6, 1966, insisting that since under Sec. 2, Rule 26 of the Rules
of Court, plaintiff-appellant was demed to have impliedly admitted each
of the matters enumerated in the request for admission, it follows that
the proper party in interest against whom plaintiff-appellant might have
claim was the principal Phoenix Assurance Co. (Phoenix0 and not the
agent Ker & Co. (Bay View Hotel Inc., vs. Ker & Co. Ltd. No. L-
28237, August 31, 1982)

The legal effects of plaintiff-appellant’s failure to answer the

request for admission could and should have been corrected below by its
filling a motion to be relieved of the consequence of the implied
admission with respect to respondent Phoenix (Bay View Hotel, Inc. vs.
Ker & Co. Ltd. supra)

The request for admission was made on June 4, 1968 when the pre-
trial was already in progress. The need of the petitioners to repeat the
request for the admission of the same matters during the continuation of
the pre-trial on September 30 and December 9, 1968, belied their
allegation that the matters, contained in their request for admission were
already impliedly admitted in accordance with Rule 26 of the Revised
Rules of Court. Moreover, during the trial in the court a quo, petitioner
thru counsel attempted to introduced evidence on the same matters or
objects of the Request for Admission. The conduct therefore of the
petitioners during the pre-trial and trial proper negates their resort to
such procedural technicality in accordance with Rule 26 of the Rules of
Court. (Ferrer-Lopez vs. Court of Appeals, 150 SCRa 393-394, May
29, 1987)
 RULE 27

PRODUCTION OR INSPECTION OF DOCUMENTS

OR THINGS

Section 1

Statutes declaring certain official records confidential must be

liberally constructed particularly when the records are needed in a court
of justice./ Central Bank documents necessary and relevant to be
furnished the Central bank documents necessary and relevant to be
furnished the Central Bank’s adversary to enable the latter to prepare
itself for the case may be ordered produced by the court. Tapes and
transcripts of Monetary Board deliberations, while confidential, are not
absolutely privileged and courts may order their production. The public
officer who is being asked to disclose certain documents relevant to the
case has the burden of proof to show that public interest will be
adversely affected thereby. (142 SCRA 523)

The trial court, at the instance of the plaintiff, directed the

defendants to produced at the taking of depositions “such part of the
records of the Lime Corporation of the Philippines as will show the
source and disposition of all transactions of said corporation with any
and all of the other defendants in the case, either in the nature of money
borrowed or credits extended or merchandise sold or delivered together
with the corresponding supporting vouchers.” Held: That a showing of
abuse of sound discretion on the part of the trial; judges has not been
demonstrated, and that accordingly the petition for a writ of prohibition
will be denied. (Lime Corporation of the Philippines vs. Moran, No.
40759, December 20, 1933)

A motion of a party to be permitted to enter designated lands or

other property in the possession if for the purpose stated under this Rule
is more advantageous than a motion for ocular inspection under Rule
130, Section 1 (real evidence) in the sense that even before the formal
hearing, the said party can inspect the premises.

Complainant wanted respondent judge to send his hearing

examiners to the office of Atty. Morabe and there inspect, locate and
bring to court documents described in complaint’s motion for inspection
and production of documents. The aforementioned motion is in the
nature of an application for search warrant which is in the nature of
criminal process. Although it is akin to a writ of discovery, it has no
relation to civil processes and is not available to individuals in civil
rights. While originally exploratory in character, its use has, by
constitutional and statutory provisions, now been restricted to specific
cases and under well-defined conditions. (Gary vs. Paredes, Adm.
Case No. 263-J, April 24, 1974)
 RULE 28

Section 1

Section 2

Section 3

Section 4

The physical examination of a person may be conducted by the

Court, or under its direction to show the nature, extent of location of
injuries (See 4 Martin, op. cit., p. 70), his physique (People vs. Ogbac,
L-4059, October 23, 1951), his facial features to determine his
resemblance and possible relationship to another (Chua Yeng vs. Coll.
Of Customs, 28 Phil. 591), or his racial original (Leung vs. Coll. Of
Customs, 31 Phil. 417), his probable age (U.S Agadas, 36 phil. 246;
Braca vs. Coll. Of Customs, 36 Phil. 929 Lim ca. Coll. of Customs, 42
Phil. 876), or in the case of a woman to establish the fact of pregnancy
(Villaflor vs. Summers, 4 Phil. 62).

A medical examination is not an indispensible element in the

prosecution for the crime of rape, because it all depends upon the
evidence offered and as long as such evidence convinces the court, a
conviction thereof is proper. Nevertheless, the prosecution in his case
actually submitted a medical certificate as evidence to the trial court. It
was prepared, attested to, and duly affirmed on testimony by the medico-
legal officer. The findings therein with regards to the condition of the
complaint’s sexual organ fully corroborated the theory of the
prosecution. It was not possible to submit another medical certificate as
to the marks that the complaint sustained since she was only able to
submit herself to a medical examination on September 1, 1968, or about
three months after the rape was committed, the time she was able to
leave the house of the appellant. (People vs. Manaay, 151 SCRa 31,
June 18, 1987)
 RULE 29

REFUSAL TO MAKE DISCOVERY

Section 1

Section 2

Section 3

Section 4

Section 5

Section 6

We can uphold the order of dismissal in question on the strength of

the basic principles of discovery procedure, more specifically, for failure
of Barreta to serve any answer to Arellano’s interrogatories. The
contention of respondent that it was erroneous for the trial court to
dismiss the action without first ordering Barreta to answer the
interrogatories of Arellano and waiting for his failure to do so has no
merit. Neither is there merit in the claim that the sending of the
interrogatories in question had not yet been given due course by the
court. “Leave of court is not necessary before written interrogatories
may be served upon a party.” In any event, if Section 1 of Rule 25 could
be susceptible of the construction suggested by counsel for Barreta, it is
to us a sufficient basis for the discovery procedure of written
interrogatories in this case to have proceeded in motion after plaintiff
had been given a period to oppose and had failed to do so. Besides, the
repeatedly unfulfilled promises of counsel to produce the answer of his
client render such objection academic. Withal, the order of dismissal of
August 19, 1969, which counsel referred to in his motion of December
16, 1969, as having been issued “in view of plaintiff’s failure to answer
the written interrogatories” was virtually accepted as final in said
motion, so much so that the artifice of moving for the reinclusion of
Arellano as an indispensible party was conceived. In brief, there is here
a case where the party served with written interrogatories has for
unexplained reasons failed altogether to comply with the requirement of
Section 2 Rule of 25 that they be answered. Under these circumstances,
the assailed dismissal finds justification in Sectrion 5 of Rule 29 which
provides:

“Failure of party to attend or serve answers.- If a party or an

officer or managing agent of a party willfully fails to appear before the
officer who is to take his deposition, after being served with a proper
notice, or fails to serve answers to interrogatories submitted under Rule
25, after proper service of such interrogatories, the court on motion and
notice, may strike out all or any part of any pleading of that party, or
dismiss the action or proceedings or any part thereof, or enter a
judgment by default against that party, and in its discretion, order him to
pay reasonable expenses incurred by the other, including attorney’s
fees.” (Arellano vs. CFI of Sorsogon. Et al., 65 SCRA 46)
 RULE 30

TRIAL

Section 1

If the answer of the defendant admits all the material allegations of

the complaint but sets forths affirmative defenses, order of trial as above
provided may not be strictly followed as the court may order the
defendant to present first his evidence to support the affirmative
defenses.

Section 2

If the parties have not agreed on stipulation of facts, wholly or

partially in the pre-trial under Rule 20, they may agree on stipulation of
facts during the trial.

Stipulation of facts are not permitted in actions for annulment of

marriage as provided in the in the Family Code of the Philippines;
neither can they agree on stipulation of facts in a case of legal
separation.

Under Rule 118, of the 1988 Revised Rule of Criminal procedure,

stipulation of facts during the pre-trial may be permitted with the
consent of the accused and his lawyer.

Unlikely factual matters which may, in general, be stipulated

conclusively by the parties, legal issues are matters of law whose final
determination ultimately rests upon the courts. Delimiting the issues
before trial, but certainly not to be absolutely preclude the court from
considering vital legal issues which may be revealed as the trial
progress. . (Tiu vs. Court of Appeals, G.R. No. 31005, 22 Feb. 88,
Third Division)
 Section 3

As long ago as 1915, this Court held that: “A severe examination

by a trial judge of some of the witness for the defense in an effort to
develop the truth and to get at the real facts affords no justification for a
charge in counsel’s brief on appeal that he has assisted the prosecution
with an evident desire to secure a conviction, or that he had intimidated
the witnesses for the defense. We have had occasion to hold (U.S. vs.
Hudieres, 27 Phil. Rep. 45) that it is not only the right but often times
the duty of a trial judge to examine witnesses when it appears to be
necessary for the elucidation of the record. Under the system of legal
procedure in vogue in this jurisdiction, where the trial court is judge of
both the law and the facts, it is oftentimes expedient or necessary in the
due and faithful administration of justice for the presiding judge in the
exercise of a sound discretion to reexamine a witness in order that this
judgment when rendered may rest upon a full and clear understanding of
the facts.” (People vs. Manalo, 148 SCRA 98- 99, Feb. 27, 1987)

We must accord to a trial judge reasonable leeway in putting such

questions to witness as may be essential to elicit relevant facts and to
make the record speak the truth. In such an effort, a judge may examine
or cross-examine a witness. He may seek to draw out relevant and
material testimony though that testimony may tend to support or rebut
the position taken by one or the other party. In the first instance, the
court has pointed out. “’the extent to which such examination may be
conducted rests in the discretion of the judge, the exercise of which will
not be controlled unless his discretion has clearly been abused to the
prejudice of either party” (People vs. Manalo, Supra)

A judge should limit himself to asking clarificatory questions not

adversary questions.- The question were not clarificatory but adversary;
and when they were not adversary, they were irrelevant, and sometimes
also cruel. At one point, the judge drew from the witness the statement
that his mother was living with another man; forthwith he suggested that
the mother was unfaithful to his father. We deplore this sadistic
treatment of the witness, especially as, for all his supposed “toughness,”
he could not answer back. We fail to see what possible connection the
mother’s infidelity could have had by any stretch of the imagination,
with the instant prosecution. (People vs. Opida, 124 SCRA 295-297)

Besides belaboring Opida’s criminal and his tatoos, the judge

asked him if he had “ever been convicted at the National Mental
Hospital” – with what else but malice? – and suggested to him that his
claim of manhandling by the police was a lie because investigators leave
no mark when they torture a suspect. This was a point that could have
been validly raised by the prosecution but certainly not by the court. The
judge also made it of hostility, that he was uneasy, and that he was
restless. “Now, whom do you want to fool,” the judge asked, “the
prosecutor, your lawyer, or the court?” (People vs. Opida, Supra)
 RULE 31

CONSOLIDATION OF SEVERANCE

Section 1

The court, in the exercise of its sound discretion may consolidated

actions involving a common question of law or fact.

There are three of consolidating actions or special proceedings

where the questions at issue and the parties in interest are the same. The
first consist in recasting the case already instituted, conducting only one
hearing and rendering only one decision; the second takes place when
the existing cases are consolidated, only one hearing held and only one
decision rendered; and the third takes place when, without recasting or
consolidating the cases, the principal one is heard, the hearing on the
other being suspended until judgment has been rendered in the first case.
(Salazar vs. Laguna et al; 64 Phil. 6)

Under Section 1 of Rule 32, in relation to section 2 of Rule 1, the

petitioner herein is entitled as a matter of right and justice to have the
sixteen cases in question consolidated for the purpose of appeal. It is not
disputed that the sixteen cases involve a common question of law; so
much so that they were tried jointly and only one decision was rendered
therein. The sixteen plaintiffs, who litigated as paupers, were
represented by one counsel, the public defender of Pampanga. To all
intents and purposes, the sixteen cases may be considered as having
been consolidated from the time they were tried and decided jointly for
the convenience of the court and the parties. There was no necessity for
either party to ask for a formal consolidation of said cases until the time
to appeal from the decision of the Court of First Instance came. On the
other hand, section 1 of Rule 32 fixes no deadline beyond which the
consolidation may not be effected. There is no valid reason for the
refusal of the trial court to permit the consolidation. On the contrary,
there is an imperative necessity therefore, otherwise the petitioner as
appellant would have to spend more than the amount involved to
prosecute his appeal. (Sideco v. Paredes, 74 Phil. 6)

Civil Case No. 6742 should therefore be consolidated and tried

with Civil Case No. 264 of the Regional Trial Court of Agusan del Sur.
The latter court to Our mind, is the mor suitable forum for the
determination of the controversy since Civil Case No. 264 instituted by
respondents Yap against Vallacar, Hambala and Hanil, hand already
been pending before the filing of Civil Case No. 6742. Such
consolidation is desirable in order to prevent confusion, to avoid
multiplicity of suits, and to save unnecessary cost and expense. Needles
to add, this procedure is well in accord with the principle that the rules
of procedures “shall be liberally construed in order to promote their
object and to asst the parties in obtaining just speedy and inexpensive
determination of every action and proceeding.” Vallacar Transit, Inc. et
al. vs. Celestino Yap, et al. No. L61308, December 29, 1983, 126 SCRA
500)

Section 2

Section 5 of Rule 36 allows separate trial of claims, cross-claim,

counterclaim, or third party claim.
 RULE 32

TRIAL WITH ASSESSORS

Section 1

Section 2

Section 3

Section 4

Section 5

Section 6

Section 7

Section 8

Section 9

Trial by assessor cannot be withheld as long as it invoked in time

and it is shown that there are questions of facts to be resolved. The
Supreme Court in the P.E Domingo case held as follows:

“It appears that as early as in its pre-trial filed on March 21, 1985,
Domingo had already indicated that “they will want a trial with assessors
under Rule 32” of the Rules of Court. This intention was later
formulized in a motion for trial with assessors filed by Domingo on
September 16, 1985. The GSIS contends that the motion was filed late
because the date set for the first hearing was September 20, 1985, or
only four days ahead; hence, under the Rule, the motion should be, as it
was, denied. The Court does not agree.
 It seems to us that if the spirit of the Rule is to be consulted the
motion should be granted. There is obviously no intention to delay, to
begin with as there evidently are certain factual issues that in the view of
one of the parties are better resolved with the help of assessors.
Moreover, the application for trial with assessors was made as early as
March 21, 1985, in the pre-trial brief filed by Domingo. Although not
made in the form of a formal motion, it arguably could have sufficed as
there is nothing in the rule that calls for such formal motion. At any rate,
such a motion was submitted on September 16, 1985, and it cannot be
said to have been filed tardily, for in fact no hearing was held within 20
days after the date or, for that matter, up to now. The delay noted in the
last two cases earlier is not present here for the trial in the case at bar has
not yet begun.

The 20-day period fixed by the Rule is intended to enable the

parties to agree on the choice of the arbitrator or for the selection to be
made in the manner prescribed therein where the parties cannot agree.
During that period, the assessor picked are to be so informed and
summoned to appear at the trial to assist the judge in the ascertainment
of the factual issues unless for good are not violated here for there is
sufficient time for the appointment of the assessors in accordance with
the said rule.

In sum, the Court reaffirms its consistent holding that the right to
trial with assessors cannot be withheld as long as it has been invoked in
time and it is shown that there are questions of fact to be resolved. We
also hold that, as found by the Court of Appeals in G.R. No. 76299 and
as we have found in G.R. No. 74211, the motions for trial with assessors
were filed on time.

As long as it is provided for in the Rules of Court, the right to trial

with assessors cannot be withheld except only for the most compelling
justification. Any right, whatever its source, be it the Constitution or
only a statute or-in this case-the Rules of Court, is protected by the due
process clause and so cannot be denied the person entitled thereto
without good reason. We have held for example, that denial of the right
to preliminary investigation, as guaranteed by law, constitutes a denial
of due process. It is no different here. “P.E Domingp & Co., Inc. vs.
Zari, 159 SCRA 176-177, March 25, 1988).

There should be no doubt as to the right of trial with the aid of

assessors in municipal courts. Hence, to argue, as appellants do, that the
ruling in Primicias vs. Ocampo is not in point because it involves trial
with assessors in the City of Manila, does not advance their case.
Neither will the contention of appellants that Rule 32 which speaks of
rights of parties to have assessors applies only to the Court of First
Instance, not a Municipal Courts, fortify appellant’s position, simply
because Rule 32 is not one of those expressly made applicable by
Section 19, Rule 5, Rules of Court to inferior courts. Following from the
substantive character of the right to trial with assessors, as held
expressly in at least three cases (Pimicias vs. Ocampo, supra Colegio de
San Jose vs. Sison, supra; Barberi vs. Concepcion, 40 Phil. 320), is the
mandatory duty of the municipal court to appoint assessors when
properly and seasonable requested. The alleged fact that no list of
assessors has been previously prepared, nor appropriation for their
compensation made, is no impediment to granting the request ;
otherwise, a substantial right could easily be negated, which cannot be
counternanced, specially in the light of the specific ruling that all
proceedings taken by the inferior courts after dential of the right of any
of the parties to a trial with the aid of assessors, are null and void.
(Colegio de San Jose vs. Sison, supra). (Pagkatipunan vs. Bautista,
108 SCRA 569. October 30, 1981)
 RULE 33

TRIAL BY COMMISSIONER

Section 1

Section 2

Section 1 does not give the definition of Commissioner.

Commissioner includes a referee, an auditor, or an examiner.

If both parties consent to the appointment of a commissioner, the

court may refer the matter to a commissioner; however if the parties do
not consent, any of the three (3) grounds men-

the appointment. Clerks of court are often times commissioned to

receive the evidence in ex parte cases. The Supreme Court has held “no
provisions of law or principle of public policy prohibits a court from
authorizing its clerk of court to receive the evidence of a party litigant.
After all, the reception of evidence by the clerk of court constitutes but a
ministerial task-the taking down of the testimony of the witness and the
marking of the pieces of documentary evidence, if any, adduced by the
party present. This task of receiving evidence precludes, on the part of
the clerk of court, the exercise of judicial discretion usually called for
when the other party who is present objects to questions propounded and
to the admission of the documentary evidence proffered. More
importantly, the duty to render judgment on the merits of the case still
rests with the judge who is obliged to personally and directed prepare
the decision based upon the evidence reported. But where the
proceedings before the clerk of court and the concomitant result thereof,
i.e., the judgment rendered by the court based on the evidence presented
in such limited proceedings, prejudice the substantial rights of the
aggrieved party, then there exists sufficient justification to grant the
latter complete opportunity to thresh out his case in court.” (Laluan vs.
Malpaya, 65 SCRA 494-495, july 30, 1975).
 On the other hand the Supreme Court likewise, has held that the
reception of evidence under these circumstances cannot be delegated to
the clerk of court when the defendant is in default. Such a practice is
wrong in principle and orientation. It has no basis in any rule. The clerk
of court would not be in a position much less have the authority to act in
the premises in the manner demanded by the rules of fair play and as
contemplated in the law, considering his comparably limited area of
discretion and his presumably inferior preparation for the functions of a
judge. Besides, the default of the defendant is no excuse for the court to
renounce of the witness of plaintiff, the better to appreciate their
truthfulness and credibility. We therefore declare as a matter of judicial
policy that there being no imperative reason for judges to do otherwise,
the practice should be discounted. (Lim Tanhu vs. Ramolete, 66 SCRA
428, August 29, 1975).

Generally, questions of accounting may be referred to an expert

even without the consent of the parties. And questions of fact arising
from motions may also be referred to a commissioner even without the
consent of parties.

Under subdivision (c) of this section, the Supreme Court may

appoint a commissioner to receive newly discovered evidence, and a
trial court may appoint a commissioner to survey and make a plan of
property in litigation, or to investigate the alleged forgery of the
bondsman’s signature on the bail bond. Although a judgment or decree
which determines all equities or the substantial merits of the case is final
for the purpose of appeal, further proceedings may be necessary in the
execution of it, or some incidental or dependent matters may still remain
to be settled, wherein a commissioner may be directed by the court to act
without the need of parties’ consent. Moran, Rules of Court, Vol. 2, 1979
Edition.

Section 3

Section 4
 Under sections 2 and 3 of Rule 33 of the Rules of Court, when the
parties do not consent, the court may, upon the application of either
party or of its own motion, direct a reference to a commissioner when a
question of fact other than upon the pleadings, arises upon motion or
otherwise, at any stage of a case or of carrying a judgment or order into
effect. Among other powers or duties, the commissioners may be
directed to report only upon particular issues, or to do or perform
particular acts or to receive and report evidence only and the trial or
hearing before him shall proceed in all respects as though the same had
been before the court. (Sec. 3, Rule 340. After all, the duty to decide the
case on the merits rests on the judge who shall write personally and
directly prepare and sign the decision based upon the evidence reported
by the commissioner (Rule 350 (Province of Pangasinan vs. Palisoc, 6
SCRA 300).

As the parties did not raise the question of the referees’ failure to
take the oath of office, either before they proceeded with the hearing of
the case or before the court rendered judgment, this defect, if it be one, is
a mere irregularity which cannot vitiate the proceedings. (Perlas vs.
Erhman, 53 Phil. 607)

Section 5

Section 6

Section 7

Section 8

As soon as order of reference is received by the commissioner, he

is mandated by this Rule to set a time and place for the first meeting of
the parties or their attorneys within 10 days and shall notify the parties
or their attorneys.
 If a party fails to appear during the meeting the commissioner may
proceed with the hearing ex-parte or adjourn the proceedings to a future
day at his discretion giving notice to the absent party.

The commissioner is given the power to issue subpoena to

witnesses. If a witness refuses to obey a subpoena it shall be deemed a
contempt of the court who appointed the commissioner.

Section 9

Section 10

Section 11

Section 12

Section 13

When the Court of Industrial Relations refers a case to a

commissioner for investigation, report and recommendation, and at such
investigation the parties are duly represented by counsel, heard or at
least given an opportunity to be heard, the requirements of due process
have been satisfied, even if the court failed to set the report for hearing
and a decision on the basis of such report, with the other evidence of the
case, is a decision which meets the requirements of a fair and open
hearing. The Supreme Court held that there is no legal bar to the
application of the principle evolved in the above ruling to cases similarly
before the ordinary courts of justice. (Apurillo vs. Garciano, 28 SCRA
1055)
 RULE 34

SUMMARY OF JUDGMENTS

Section 1

Section 2

Section 3

Rule 34 of the Rules of Court authorizes the rendition of a

summary judgment when, upon motion of the plaintiff after the answer
to the complaint has been filed, it would appear, during the hearing of
the motion for such a judgment, from the pleadings, depositions and
admissions on file, together with the affidavits that, except as to the
amount of damages, “there is no genuine issue as to any material fact
and that the winning party is entitled to a judgment as a matter of law.”
(Section 3, Rule 34, Rules of Court.) Conversely, the rendition of
summary judgment is not justified when the defending party tenders
vital issues which call for the presentation of evidence.

A motion for summary judgment assumes that scrutinizing of the

facts will disclose that there is no genuine issue as to any material facts
or where the facts appear undisputed and certain from the pleadings,
depositions, admissions and affidavits, (Bayang vs. Court of Appeals.
148 SCRA 91-92, 2/27/87)

Summary judgment procedure is a method for promptly disposing

of actions in which there is no genuine issue as to any material fact.
Under this definition and from the provision of section 1 of Rule 36,
there would seem to be no limitation as to the type of actions in which
the remedy is available, except where the material facts alleged in the
complaint are required to be proved. (De Leon vs. Faustino, No. L-
15804, November 29, 1960)
 Judgment on the pleading is available when the answer does not
tender an issue or otherwise admits the material allegations of the
complaint. In other words, the court may render a judgment based purely
on the allegations of the proceedings. A summary judgment is available
where there is no genuine issue on the case except as to the amount of
damages and may be rendered based on the pleadings, affidavits,
deposition and admission of the parties. Judgment on the pleadings and
summary judgment may be rendered by the Court in a pre-trial hearing.
(Rule 20 Section 3)

In their answer, the defendant admit the plaintiff’s averments

except as to the correctness of the amounts due, the correctness of which
they were still checking, and for that reason lacking sufficient
knowledge or information to form a belief as to the truth and veracity of
the amounts due, they deny the amounts claimed by the plaintiff to be
due them. Held: The defendants’ answer did not tender a genuine issue.
Hence, plaintiff is entitled to summary judgment. (PNB vs. Phil.
Leather Col., Inc., et al. No. L-10884, 31 March 1959)

The allegations in the complaint that the administration failed to

file an inventory, to pay the plaintiff’s claim and to render a true and just
account of her administration, are factual and should be controverted by
counter-affidavits if the defendants desires to raise genuine issues as to
any material fact. An affidavit supporting a motion for summary
judgment, signed by the lawyer who expressly stated that he had
personal knowledge of the facts alleged therein, is sufficient. (Warner,
Barnes & Co., Ltd., vs. Luzon Surety Co., Inc. No. L-6637. September
30, 1954)

The case at bar may not even by the most liberal or strained
interpretation, be considered as one not involving genuine issues of fact
which necessitates presentation of evidence to determine which of the
two conflicting assertions of facts is correct. A careful examination of
the pleading will show that private respondent claims ownership of the
land in question having allegedly inherited the same from her deceased
father, Eusebio Mueda. Said claim is controverted by the petitioners who
also assert ownership over the same land having allegedly also inherited
the same from their deceased father, Rafael Paguntalan, the owner
thereof. These diametrically opposed and conflicting claims present a
factual dispute which can be resolved and settled only by means of a
trial on the merits. The affidavits, documents and memorandum
submitted by the parties all the more show that the facts pleaded are
disputed or contested. The issue of ownership, thus raised by the parties
may not be categorized as frivolous and sham so as to dispense with the
presentation of evidence in a formal trial. Reliance by the trial court on
Section 8, Rule 8 of the Rules of Court as its basis for the rendition of
the challenged Summary Judgment is misplaced and without legal
support. (Cadirao vs. Estenzo. No. L-42408. September 21, 1984. 132
SCRA 93)

Section 4

Section 5

Section 6

A partial summary judgment is not a final or appealable judgment.-

It will be noted that the judgment in a question is a ‘partial summary
judgment’. It was rendered only with respect to the private respondent’s
first and second causes of action alleged in their complaint. It was not
intended to cover the other prayers in the said complaint, nor the
supplementary counterclaim filed by the petitioners against the Security
Bank and Trust Company. A partial summary judgment “is not a final or
appealable judgment”. (Moraln, Vol. 2, 1970 Edition, p.189, citing
several cases.) “It is merely a pretrial adjudication that said issues in the
case shall be deemed establish for the trial of the case.” (Guevarra vs.
Court of Appeals 124 SCRA 297, No. L-49017 and L-49024, August
30, 1983)
 Certiorari is a more speedy and efficacious remedy to nullify a
summary judgment rendered without legal support.- Anent the property
of the remedy availed of by the petitioners, suffice it to state, that
although appeal was technically available to them, certiorari still lies
since such appeal does not prove to be speedy and adequate remedy.
Where the remedy of appeal cannot afford an adequate expeditious
relief, certiorari can be allowed as a mode of redress to prevent
irreparable damage and injury to a party. Certiorari is a more speedy and
efficacious remedy of nullifying the assailed summary judgment there
being absolutely no legal basis for its issuance. Moreover, the records
show that private respondent had already moved for the issuance of a
writ or execution and that respondent Judge merely held in abeyance
resolution of the same pending resolution by this Court of the instant
petition. Clearly then, even if appeal was available to the petitioners, it is
no longer speedy and adequate. (Cadirao vs. Estenzo, supra).
 RULE 35

JUDGMENT ON DEMURRER TO EVIDENCE

Section 1

Petitioners are obviously misled by the title of Rule 35 of the Rules

of Court, “Judgment on Demurrer to Evidence.” Said Rule consisting of
only one section, allows the defendant to move for dismissal of the case
after the plaintiff has presented his evidence on the ground of
insufficient of evidence, and provides for the effects of the dismissal or
non-dismissal, as the case may be, on the right of the defendant to
present his case. Otherwise stated, it authorized a judgment on the merits
of the case without the defendant having to submit evidence on his part
as he would ordinarily have to do, if it is shown by plaintiff’s evidence
that the latter is not entitled to the relief sought. The demurrer, therefore,
is an aid or instrument for the expeditious termination of an action,
similar to a motion to dismiss, which the court or tribunal may either
grant or deny. (Nepomuceno vs. Commission on Elections, 126 SCRA
472, No. L-60601, December 29, 1983)

It is thus apparent that the requirement of Section 1 of Rule 36

would only apply if the demurrer is granted, for in this event, there
would in fact be an adjudication on the merits of the case, leaving
nothing more to be done, except perhaps to interpose an appeal.
However, a denial of the demurrer is not final judgment, but merely
interlocutory in character as it does not finally dispose of the case, the
defendant having yet the right to present his evidence, as provided for
under Section 1 of Rule 35. (Nepomuceno vs. Commission on
Elections, supra)

Here involved is not on the merits but a mere order upon a motion
to reconsider. The judge could simply dish out a routine capsule-form
order “Denied for Lack of Merit” or “Motion for Reconsideration
Denied.” And yet, the kind of order would serve to immunize the judge
against an unlawful neglect-of-duty charge. The challenged order being
merely an interlocutory order and not a final judgment or decision, no
abuse of discretion was committed by respondent Comelec in its order
denying petitioners’ demurrer to evidence. (Nepomuceno vs.
Commission on Elections, supra)
 RULE 36

JUDGMENT, ORDERS AND ENTRY THEREOF

Section 1

Under Rule 36, Section 1, the requisites of a valid judgment are as

follows:

a) It shall be in writing personally and directly prepared by the

judge.
b) It should state clearly and distinctly the facts and the law in
which it is based.
c) It must contain a dispositive portion, signed by the judge and
filed with the Clerk of Court.

This Section refers only to judgments on the merits and not to

Interlocutory orders. The rule is also applicable in the inferior courts.

Under Section 14 of Article VIII of the 1987 Constitution, “no

decision shall be rendered by any court without expressing therein
clearly and distinctly the facts and the law on which it is based.”

A judgment cannot be faulted even if it merely narrates or

summarizes the prosecution and defense evidences and declares that
defendants’ defenses have not been established.- We agree with the
Solicitor General that: “x x x (i) it was previously held that: “where the
decision narrates the substance of the testimony of both the prosecution
witnesses and the witnesses for the defense and thereafter declaring that
defendants’ defense has not been established, the pronouncement
amounts to an acceptance of the facts narrated by the prosecution
witnesses, facts previously detailed in the same decision.” Consequently,
it cannot be held that the decision contained no statement of the facts
proved. (People vs. Sabijon, 94 Phil. 1047). So it is with the decision in
the case at bar. (People vs. Adones, Sept. 24, 1986, 144 SCRA 366
 Decision not considered binding on the parties until promulgation;
Judgment becomes valid and binding only when filed with the Clerk of
Court.- It is elementary that a draft of a decision does not operate as
judgment on a case until the same is duly signed and delivered to the
Clerk for filing and promulgation. A decision cannot be considered as
binding on the parties until its promulgation. Respondent should be
aware of this Rule. In still another case of Ago vs. Court of Appeals
(where herein respondent Ago was petitioner), the Court held that,
“While it is to be presumed that the judgment that was dictated in open
court will be the judgment of the court, the court may still modify such
order as the same is being put into writing. And even if the order or
judgment has already been put into writing and signed, while it has not
yet been delivers to the Clerk for filing, it is still subject to amendment
or change by the judge. It is only when the judgment signed by the judge
is actually filed with the Clerk of Court that it becomes a valid and
binding judgment. Prior thereto, it could still be subject to amendment
and change and may not, therefore, constitute the real judgment of the
court.” (Lianga Bay Logging Co., Inc. vs. Lopez Enage, July 16,
1987, 152 SCRA 81-82)

The judge committed judicial indiscretion when he issued the

controversial April 29, 1983 order despite his being on leave of absence.
(Hacienda Benito, Inc. Intermediate Appellate Court, August 12, 1987,
153 SCRA 46-47)

Finally, we now come to the third argument regarding the denial of

the petition by a minute resolution. Although, petitioner in his Reply,
thru his Counsel, Atty. Joanes G. Caacbay has never questions the power
of this Court to deny petition for review by the issuance of a mere
minute resolution as there is no review whatsoever of the provision of
the Constitution and at the same time, same counsel disowns having
knowledge or a hand in the preparation of the motion for consideration
which was prepared by a certain Atty. T. Avena. We deemed it
worthwhile to mention here the case of In Re: Almacan, 31 SCRA 562,
574 where we held that: “Six years ago in Novino, et al. vs. Court of
Appeals, et al., L-21098, May 31, 1963 (60 O.G. 8099), this Court
through the then Chief Justice Cesar Bengzon, articulated its considered
view on this matter. There, the petitioner’s counsel urged that a “lack of
merit” resolution violates Section 12 of Article VIII of the Constitution.
Said Chief Justice Bengzon. “In connection with identical short
resolution, the same question has been raised before; and we held that
these ‘resolution’ are not ‘decisions’ within the above constitutional
requirements. They merely hold that the petition for review should not
be entertained in view of the provisions of Rule 46 of the Rules of
Court; and even ordinary lawyers have all this time so understood. It
should be remembered that a matter or right, but of sound judicial
discretion; and so there is no need to fully explain the court’s denial. For
one thing, the facts and the law are already mentioned in the Court of
Appeals’ opinion.” (Que vs. People, September 21, 1987, 154 SCRA
160161-162)

A judgment although erroneous is binding.- Whether or not the

court committed an error in relying on the Parity Amendment to the
1935 Constitution is another matter but such reliance did not effect its
jurisdiction. And since the judgment had become final, it resolved the
litigation definitely albeit wrongly. For an erroneous judgment by a
court of competent jurisdiction is not a void judgment. To illustrate: a
person is accused of the theft and is convicted accordingly although the
material facts which were established during the trial made out of a case
of estafa. If the court which tried the case had jurisdiction, its judgment
would be valid despite the error and when it attains finality it is no
longer subject to review. (Bethel temple, Inc. vs. gen. Coucil of
Assemblies of God, Inc., No. L-35536, April 30, 1985, 136 SCRA
203)

A judgment whether correct or not becomes final when the

plaintiffs did not appeal said judgment.- After deliberating on the
petition, the Court resolved to dismiss it for lack of merit. The judgment
in favor of Municipality of Voveleta, whether correct or not, attained
finality with the substituted plaintiffs did not appeal it. (Malia vs.
Intermediate Appellate Court, No. L-66395, August 7, 1985, 138
SCRA 116)

Judges are enjoined to make completefindings of fact in their

decision and to scrutinize closely the legal aspects of the case in the light
of the evidence presented. (Pengson vs. Intermediate Appellate Court,
No. L-65622, June 29, 1984, 130 SCRA 289)

Section 2

The general power to correct clerical errors and omissions does not
authorize the court to repair its own inaction, to make the record and
judgment say what the court did not adjudge, although it had a clear
right to do so. The court cannot, under the guise of correcting its record
put upon it an order or judgment it never made or rendered, or add
something to either which was not originally included although it might
and should have so ordered and adjudged in the first instance. It cannot
thus repair its own laches and omissions to do what it could legally and
properly have done at the right time. A court’s mistake in leaving out of
its decision something which it ought to have put in, and something in
issue of which it intended but failed to dispose, is judicial error, not a
mere clerical misprision, and cannot be corrected by adding to the
entered judgment the omitted matter on the theory of making the entry
conform error is an exception may be made by the court in its judgment
once the latter had become final. (Moran, Rules of Court, Vol. 2, 1979
Edition pp. 196-1967)

As we have more than once ruled, a judgment is not confined to

what appears on the face of the decision but comprehends what is
necessarily included therein or necessary thereto to make it effective;
and that while, for purposes of execution, the dispositive part of the a
decision controls, when there is ambiguity or uncertainty therein, the
body of the opinion may be referred to for purposes of construing the
judgment because the dispositive part of a decision must find support
from the decision’s ration decidendi. “The form of the judgment is not
inferentially that the mater had been determined in favor of one of the
litigants or that the rights of the parties in litigation had been
adjudicated. In other words, the sufficiency of the writing claimed to be
a judgment should always be tested by its substance rather than the form.
(Budget Investment Financing, Inc. vs. Mangoma, September 4,
1987, 153 SCRA 630-631-632)

It clearly appears from the allegations of the complaint, the

promissory note reproduced therein and made a part thereof, the prayer
and the conclusions of fact and of law contained in the decision of the
respondent judge, that the obligation contracted by the petitioners is joint
and several and that the parties as well as the trial judge so understood it.
Under the juridical rule that the judgment should be in accordance with
the allegations, the evidence and the conclusions of fact and law, the
dispositive part of the judgment under consideration should have ordered
that the debt be paid severally, and in omitting the word or adverb
‘severally’ inadvertently, said judgment became ambiguous. This
ambiguity may be clarified at any time after the decision is rendered and
even after it had become final (34 Corpus Juris, 235, 3260. The
respondent judge did not, therefore, exceed his jurisdiction in clarifying
the dispositive part of the judgment by supplying the omission.”
(Republic Surety and Insurance Co., Inc. vs. Intermediate Appellate
Court, July 27, 1987, 152 SCRA 309)

Acting on the Motion for Clarification of paragraph (3) of the

Decision of December 26, 1984, filed by petitioner Municipality of
Antipolo on September 16, 1986, the Opposition thereto filed by private
respondent Aurelia L. Lavilla, the Comment of the Solicitor General and
the Rejoinder thereto by the same private respondent, the Court
RESOLVED ,inasmuch as what is involved is mere clerical error, to
CORRECT paragraph (3) of the dispositive portion of its Decision of
December 26, 1984, to read Heirs of Joaquin Avendano instead of Heirs
of Isabela Avedano. (Municipality of Antipolo vs. Zapanta, Dec. 19,
1986, 146 SCRA 345-346)
 The plaintiffs are builders in good faith and as such entitled to
reimbursement for their expenses with a right of retention until paid. If
the clarification made by the Intermediate Appellate Court is struck
down, the plaintiffs will have to institute another suit in respect of their
expenses. In the meantime, the defendants are deprived of the possession
of their property because of the plaintiffs’ right of retention. It is thus
manifest that granting the petition would be counter-productive for all
concerned. (Orbase vs. Nocos, May 20, 1986, 142 SCRA 213-214)

Entry of judgment was made on the same date and the records of
the case were remanded to the lower court on February 23, 1981. It was
only when the decision was to be executed that a dispute as to the
correct amount due the Franciscos arose, prompting the latter to seek
clarification of the decision of the Court of Appeals. By taking
cognizance of said motion for clarification, the Court of Appeals,
however, did not revive the case. It merely exercised its inherent power
to clarify its own decision, in the same manner that it may order an
accounting after the complete adjudication and determination of the
rights and obligations of the parties, so long as the order is only
incidental to its judgement and does not affect its final character. (See
Lagunzad vs. Soto Vda. De Gonzales, L-32066, August 6, 1979, 92
SCRA 476) Thus, when petitioner filed their appeal on December 28,
1981, the decision sought to be reviewed had long become final and
executor. (Congressional Commercial Corporationvs. Court of
Appeals, November 27, 1986, 146 SCRA 90)

Dispositive part of the decision must find support in the body of the
decision spelling out the ratio decidendi.- Mutual also contended thyat
there was absolutely no evidence that the transaction contracted ny
respondent Cipriano was for the benefit of the conjugal partnership, was
simply a statement of fact in the body of the decision and that, since in
the dispositive portion of the decision, nothing was said with respect to
the liability of the conjugal partnership, a subsequent order making the
said partnership liable was proper. We find no discrepancy whatsoever
between the findings of fact and the dispositive portion of Judge
Solidum’s decision. And if there were any ambiguity or uncertainty in
the dispositive portion thereof, the body of the opinion may be referred
to for purposes of construing the dispositive part of the judgment. The
dispositive part of the decision must find support in the body of the
decision spelling out the ratio decidendi. (Mutual Security Insurance
Corp. vs. Court of Appeals, September 11, 1987, 153 SCRA 678-679)

Section 3

Under this section, judgment may be given for or against one or

more of several plaintiffs and for or against one or more of several
defendants. When parties on each side have rights and obligations to
settle between themselves, the court may require them to file adversary
pleadings as between themselves. The rule permits the recovery of a
judgment by any plaintiff who shows himself entitled. Although the
others may fail, as where the claim of several plaintiffs are distinct,
although sufficiently united by common interest to authorize their
joinder in a single suit.

Where two or more sues jointly for conversion, the fact that the
evidence shows title to be solely in only one of the plaintiffs does not
preclude judgment in favor of that one. Wherever a defendant pleads a
matter which goes to his personal discharge or pleads or gives in
evidence a matter which is a bar to the action against him only, and of
which the others could no take advantage, judgment may be for such
defendant and against the rest. (Martin, Rules of Court, Vol. 1, 1989
Edition, p. 703)

Section 4

If the defendants have separate or several interest, a final order or

judgment may be entered as to them leaving the action to proceed
against the others, according to Section 4, Rule 35, of the Rules of
Court. This Section provides that ‘in an action against several defendants
the court may, in its discretion, render judgment against one or more of
them, leaving the action to proceed against the other, whenever a several
judgment is proper.” But if the defendants have common interest, an
order of judgment of dismissal as to some of them is not final and,
therefore, not appealable, for it is a well-known rule that the whole
controversy or all the issues involved in a case and as to all defendants
must be disposed of or settled before any final judgment may be entered,
a rule recognized a contrario sensu in the above quoted provision of
Section 4, Rule 35. (Dissenting opinion of Justice F.R. Feria in Santos
vs. Pecson, September 17, 1947, 79 Phil. 265)

Section 5

Under this Section, a court is given discretion to enter a judgment

when more than one claim for relief if presented in an action. Where
there are two or more causes joined in one complaint, under Rule 2,
Section 5, Rules of Court, the court may enter a judgment, for the first
cause and subsequently render judgment on the other causes of action.
This is also true in case the defendant set forth in his answer a
permissive counterclaim; the court may enter a judgment on the main
action first and then on the permissive counterclaim.

Section 6

This Section compliments Section 15, Rule 3, which reads as

follows:

“Association as defendants,- when two or more persons,

associated in any business, transact such business under a common
name, whether it comprises names of such persons or not, the
associates may be sued by such common name.”

“Persons associated in business who are sued under a

common name must all be named individually in the answer filed
by them or on their behalf with their business address.”
 RULE 37

NEW TRIAL

Section 1

Section 2

A motion for new trial to set aside the judgment may be filed by
the aggrieved party within the period for perfecting an appeal. The
ordinary period for perfecting an appeal is 15 days from receipt of the
judgment by the aggrieved party; however, in case of an unknown
defendant or non-resident defendant the period to file a motion for new
trial will be 60 days from the date of the last publication. The time
during which a motion for new trial has been pending shall be deducted
unless such motion for new trial is considered pro forma under this Rule.
But where such a motion for new trial has been filed during office hours
of the last day of the period herein provided, the appeal must be
perfected within the day the appealing party received the notice of the
denial of his motion under Rule 41, Section 3.

Finally, it bears stressing that the filing of a proper motion for new
trial interrupts the running of the period of appeal which begins to run
again from receipt of notice by the movant of the order denying his
motion. In this situation, the party adversely affected has only the
balance of the period of appeal within which to perfect his appeal, the
balance being the number of days remaining of the reglementary period
after deducting the time during which the motion was pending; i.e, from
the date when the motion was filed to the date when notice of the order
of denial was served on the movant. If the motion for new trial was filed
on the last day of the reglementary appeal period, the movant may
appeal within the day following service on hi0m of the notice of the
order denying his motion. (PCIB vs. Ortiz, 150 SCRA 380-383, May
29, 1987)
 To set aside the judgment, reopen the case and allow the PCIB
attorneys to present evidence of defense which are inconsequential,
would not serve any useful purpose. Moreover, the Trial Court’s ruling
that as “appears in the answer,” PCIB “has no good and valid defenses
which might change or alter the judgment of this Court if it were to set
(it) aside and x x (reopen the case) to allow the defendant to cross
examine the plaintiff and to present his evidence.” Appears to be correct
(PCIB vs. Ortiz, supra)

Fraud as a ground for new trial refers to extrinsic fraud.

The fraud in Anuran vs. Aquino (38 Phil 29) – procuring judgment
by collision with the administrator of defendant estate, without revealing
the existence of another heir – or fraud in the means whereby judgment
was procured is extrinsic or collateral. It may be a ground for annulment
of a final judgment (Cordoviz vs. De Obias, 23 SCRA 244, April 26,
1968)

A party or his attorney to appear in the trial and the court rendered
a judgment in the absence of one of them. If the party and his attorney
who failed to appear had met an accident, it is a proper ground for a new
trial.

In a view of the evidence showing a compromise between the

parties, it was natural and logical that the plaintiff herein had been ended
by the aforesaid compromise and that he was relieved, therefore, from
the duty of filing his answer. such being excusable and having prevented
the plaintiff herein from making a defense that would have been good
and efficacious, this case come within the provisions of Section 513 of
the Code of Civil Procedure, and the judgment default must be set aside
and a new trial ordered. (Salazar vs. Salazar, 8 phil. 183, March 27,
1967)

The failure of the daughter of the attorney of the petitioner to

transmit to her father on time the decision of the trial court due to her
academic examinations does not constitute excusable negligence
(Seavan Carrier, Inc. vs. GTI Sportswear Copr., 132 SCRA 308,
Sept. 28, 1984)

In order that newly discovered evidence may be ground for a

motion for new trial the following requisites should be present: a) that
the evidence is newly discovered; b) that the movant with the exercise of
reasonable diligence could not have discovered the said evidence and
produced them at the trial, and c) if presented would probably alter the
result, so that it was only after the respondent Court of Tax Appeals had
decided the appeal against petitioners that the latter, in a motion for
reconsideration and/or new trial, attempted to accomplish this task
through the submission of documents purporting to show that the sum of
US104,000.00 was purchased by petitioner Kaneo Sotoyama on
December 15, 1975 from a company named Nagoka Shokuhin kogyo
Kabushiki Kaisha, later changed to Chikusan Jigyo Kaihatsu Kabushiki
Kaisha. But by petitioners’ own admission said documents could hardly
be considered newly discovered evidence as would warrant a new trial
under Sec. 1 (b) of Rule 37 of the Rules of Court. (Sotoyama vs. Court
of Tax Appeals, 147 SCRA 467-468, Jan. 30, 1987)

A fire insurance company was sued upon two policies of insurance

which had been issued upon a house and its contents. Judgment was
given for plaintiffs, and the amount recovered was paid. Later the
company obtained information showing that the fire was of incendiary
origin and had been set at the instigation of the plaintiffs. The company
thereupon, upon motion filed within six months after the rendition of the
judgment, asked the court to open the judgment and permit the company
to interpose a defense based upon the newly discovered evidence. It was
shown that the company had no knowledge of this defense at the time of
the original trial and that it had used due diligence in presenting its
motion after receiving information thereof. Held: That the trial court had
authority to grant said motion under Section 113 of the Code of Civil
Procedure (now Rule 37 of the Rules of Court).
 But where, as here, the motion for new trial is founded not only on
fraud, accident, mistake or excusable negligence, but also on ground of
award of excessive damages,” as to which no affidavit of fraud, etc., or
of merits is required, what is being required of the movant being to
“point out specifically the findings or conclusions of the judgment”
demonstrating the invoked ground, the motion cannot be denied as pro
forma simply because no affidavit of merits is appended thereto,
provided there is a specification of the findings or conclusions of the
judgment alleged to be erroneously because of the award of excessive
damages. (PCIB vs. Ortiz, 150 SCRA 380-383, May 29, 1987)

A motion for new trial under Rule 37 of the Rules of Court is

defective if neither an affidavit of merit nor an affidavit of the averred
absolutory cases (as regards the lawyer’s failure to appear for trial) was
appended to the motion, as explicitly required by Section 2, Rule 37 in
relation to Section 7, Rule 133 of the Rules. If there is no declaration
under oath to establish the counsel’s claimed illness, conformably with
the rule governing evidence on motions, and there is no affidavit of
merit setting out the facts claimed to constitute the plaintiffs’ valid and
meritorious cause or causes of action, such omissions are fatal, absent
any circumstances on record of adequate weight to execute or justify the
same. (Minister of Natural Resources vs. Hughes, 155 SCRA 566-
567, Nov. 12, 1987)

The Appellate Tribunal failed to apprehend, in the first place, the

Atty. Crisanto’s motion for reconsideration or, more properly, motion
for new trial under Rule 37 of the Rules of Court, was flawed by serious
defects. Neither an affidavit of merit nor an affidavit of the averred
absolutory causes (as the lawyer’s failure to appear for trial) was
appended to the motion, as explicitly required by Section 2, rule 37 in
relation to Section 7, Rule 133 of the Rules. There was in other words no
declaration under oath to establish the counsel’s claimed illness,
conformably with the rule governing evidence on motions. And there
was no affidavit of merit setting out the facts claimed to constitute the
plaintiffs’ valid and meritorious cause or causes of action. This is a fatal
omission, absent any circumstances on record of adequate weight to
excuse or justify the same. (supra)

Pro forma motions for new trial/reconsideration will not stop the
running of the period to appeal under Section 3, Rule 41. The following
motions for new trial/reconsideration are considered pro forma: a) where
the ground for the motion for new trial is fraud, mistake, accident or
excusable for the motion is not accompanied with an affidavit of merit;
b) when the ground is newly discovered evidence and the motion is not
accompanied with an affidavit alleging the newly discovered evidence as
required by the rules, and c) when the motion is based on insufficiency
of evidence that the decision is contrary to law without pointing to the
record why the evidence is insufficient to justify the judgment why the
decision is against the law.

The motion for reconsideration of herein petitioner, while

substantially base on the same grounds he invoked in his memorandum
after the case was submitted for decision, is not pro-forma as it points
out specifically the findings or conclusions in the judgment which he
claims are not supported by the evidence or which are contrary to law.
(Maturan vs. Araula, 111 SCRA 615, Jan. 22, 1982)

In the first place, the very purpose of a motion for reconsideration

is to point out the findings and conclusions of the decision which in the
movants view, are not supported by law or the evidence. The movant is,
therefore, very often confined to the amplification or further discussion
of the same issues already passed upon by the court. Otherwise, his
remedy would not be a reconsideration of the decision but a new trial or
some other remedy. In the case of Vina vs. Court of Appeals (126
SCRA 381-382), we emphasized the nature of a motion for
reconsideration. (Siy vs. Court of Appeals, 138 SCRA 536, Sept. 13,
1985)

Among the ends to which a motion for reconsideration is

addressed, one is precisely to convince the court that its ruling is
erroneous and improper, contrary to the law or the evidence (Rule 37,
Section 1, sub-section c) and in doing so, the movant has to dwell of
necessity upon the issues passed upon by the court. If a motion for
reconsideration may not discuss these issues, the consequence would be
that after a decision is rendered, the losing party would be confined to
filing only motions for reopening and new trial. (supra).

Section 3

Section 4

Section 5

Section 6

Section 7

The initial ruling of this COrt in the mentioned case of Habaluyas

vs. Japson, G.R. No. L-70895, dated August 5, 1986 (138 SCRA 46),
which was relied upon by the Intermediate Appellate Court has,
however, now been clarified and/or modifies by our subsequent
resolution in the very same Habaluyas case. Ina clarificatory resolution,
date May 30, 1986, this Court decreed in the same afforested case (142
SCRA 208), that no motion fir extension of time to file a motion for new
trial or reconsideration may be filed in the Metropolitan and Municipal
Courts, Regional Trial Courts, and Intermediate Appellate Court, except
in case pending in the Supreme Court, and that this rule would be strictly
enforced only after one month from May 30, 1986, or effective June30,
1986. (Ipapo vs. Intermediate Appellate Court, 147 SCRA 342-344,
Jan. 27, 1987)

For purpose of determining its timeliness, a motion for

reconsideration may properly treated as an appeal. As a step to allow an
inferior court to correct itself before review by a higher court, a motion
for reconsideration must necessarily be filed within the period to appeal.
When filed beyond such period, the motion for reconsideration ipso
facto forecloses the right to appeal (Camacho vs. Court of Appeals, 76
SCRA 531). Thus, in the case at bar, a motion for reconsideration and an
appeal from a decision, award or order of the Labor Arbiter must be
filed within ten (10) days from receipt of such decision, award or order,
pursuant to the Labor Code. The petitioners’ motion for reconsideration
was filed a day late. (Insular Life Assurance Co., Ltd. vs. NLRC, 156
SCRA 740-741, Dec. 21, 1987)
 RULE 38

RELIEF FROM JUDGMENTS, ORDERS OR OTHER

PROCEEDINGS

Section 1

A relief from a judgment of an error court is likewise based on

fraud, accident, mistake, or excusable negligence, the same grounds
from relief of a judgment of the Regional Trial Court.

Relief under Sec. 1, Rule 38 of the Rules of Court is available only

after a decision or judgment from which relief is sought has become
final and executory. The judge has an inherent right, while his judgment
is still under his control, to correct errors, mistake or injustices. After
judgment has become final he loses his right to change or modify it in
the slightest degree, except for the purpose of correcting clerical errors.
(Quirino vs. Phil. Nat. Bank et al., 101 Phil. 705)

Section 2

A petition for relief from judgment is not like a petition for

certiorari wherein the judge is made a party respondent because he is
alleged to have acted without or in excess of his jurisdiction or with
grave abuse of discretion (Section 1 and 5 of Rule 65). In a petition for
relief from judgment, the petitioner claims that due to extrinsic fraud,
accident, mistake, or excusable negligence, he has been unjustly deprive
of hearing or has been prevented from taking an appeal.

On the other hand, if the petition for relief is against an order

disallowing an appeal for having been filed out of time and the petition
is denied or dismissed, in the appeal from the denial or dismissal the
appellate court must also be appraised of the merits of the case of the
party who assails such denial or dismissal. If the appellate court finds a
justifiable ground and meritorious case, it will reverse the denial or
dismissal and allow the appeal from the decision in the main case.
(Service Specialist, Inc. vs. Sheriff of Manila, 145 SCRA 139-142)

A petition for relief is distinguished from a motion for new trial

under Rule 37, as follows:

a) A motion for new trial may be filed within 15 days from

receipt of the judgment by the aggrieved party while a
petition for relief may be filed within 60 days from the time
petitioner learns of judgment but not more than 6 months
from entry of the judgment;

b) In a motion for new trial the judgment is not yet final while
in the motion for relief, judgment is already final;

c) There are two other grounds aside from fraud, mistake,

accident or excusable negligence in a motion for new trial
while in a petition for relief the sole basis is fraud, mistake,
accident and excusable negligence.

The records bear out the fact that in their motion for
reconsideration, the private respondents stressed the fact that although it
may be said that the petitioners came to know of the order of November
15, 1972 only on December 11, 1972 when a writ of execution was
served on them, their petition for relief from judgment was filed only on
February 24, 1973. Furthermore, it is the duty of the petitioners to show
that their petition for relief was filed within the period for under Rule 38
of the Revised Rules of Court. (Munez vs. Court of Appeals, 152 SCRA
197-198)

A petition for relief from judgment is proper only when the court is
still in control of the proceedings. If the petition for relief is filed after
the order of reconstitution had not only become final and executor, but
has in fact been executed by the issuance of the reconstituted original
title which result in the subsequent issuance of a transfer certificate of
title, it is error for the court to entertain said petition, because by that it
was already deprived of its jurisdiction. Furthermore, the lower court
should consider the fact that premised on equity, relief from judgment is
granted only in exceptional cases and, being an act of grace, it is not
regarded with favor. (Bermudo vs. Court of Appeals, 155 SCRA 9)

A petitioner seeking relief from a final judgment of the regional

trial court should file his petition in the same regional trial court which
rendered the judgment. If there are many branches of the regional trial
court in the province or municipality, the same should be fuled in the
same branch of the court which rendered the judgment. Only parties to
the original judgment may avail of a petition for relief from judgment.
Those not parties in the original case cannot avail of the remedies of
petition for relief from judgment (Service specialist & Sheriff of
Manila, 145 SCRA 139)

Section 3

A petition for relief from judgment under Section 1 and 2 should

be filed within 60 days after the petitioner learns of the judgment, order
and proceedings to be set aside and not more than 6 months after such
judgment or order was entered or such proceedings was taken.

Phrase “or other proceedings” in Section 3 of the Rule 38 includes

a writ of execution; a final and executor judgment can no longer be
questioned as the 6-month period to file petition for relief had already
expired. (Heirs of Marasigan vs. Intermediate Appellate Court, 152
SCRA 253-255)

In the case of Napone, et al. vs. Rural Bank of Amadeo, Inc., G. R.

No. 79405, November 18, 1987, the Supreme Court laid down the rules
with respect to the period within which a petition for relief from
judgment may be filed as follows:
 ‘The remedy allowed by Section 3, Rule 38 of the Rules of
Court is merely an act of grace or benevolence intended to afford a
litigant, a penultimate opportunity to protect his interest.
Considering the nature of such relief and the purpose behind it, the
period fixed by said rule is non-extendible and is never interrupted;
nor can it be subject to any condition or contingency because it is
itself devised to meet a condition or contingency.

In the instant case, while the decision of the trial court was
received by the respondent as early as December 5, 1975, the private
respondents filed their “Motion To Amend Decision Based on Mistake’
only on April 5, 1976, or one hundred twenty one (121) days after they
learned of the assailed judgment, or sixty one (61) days late. Likewise,
their “Motion To Set Aside Compromise Agreement was filed on June
23, 1976, or two hundred (200) days after they learned of the judgment
or on hundred forty (140) days way out of time. The decision affirming
the Compromise Agreement has become final and executor. (As a matter
of law, a judgment on compromise becomes final and immediately
executor upon approval thereof by the proper court.) (Hagosojos vs. CA
155 SCRA 175)

In the case of Marasigan vs, Intermediate Appellate Court (supra)

where the records do not bear the exact date the questioned judgment
was entered, the Supreme Court held that the 6 month period can be
counted for purposes of the decision from July 12, 1976 when the writ of
execution of the final judgment was issued.

Sec. 3 also requires that the petition must be accompanied by

affidavits showing the fraud, accident, mistake or excusable negligence
relied upon and the facts constituting the petitioners good and substantial
causes of action or defense.

A general allegation “that defendant has a good and valid defense”

is not sufficient compliance for relief from judgment to be granted under
Rule 38.- Examining the petition for relief filed by petitioner, while the
same appears verified and accompanied by an affidavit of merit, the
allegations of fact made therein do not prove either fraud, accident,
mistake, or excusable negligence, nor show a valid defense in favor of
the party seeking relief. The general allegation made therein to the late
Segunda O. Vda. Arcilla voluntarily and willingly executed the
document of Sale” is not sufficient compliance with the rules. Since the
Deed of Sale sought to be annulled was written in English and it is
admitted that Segunda O Vda. De Arcilla is an illiterate and does not
know how to read and write, it would have been an easy matter for
petition to have secured notarized the document as well as the witnesses
to the execution and signing thereof to show that the contents of the
documents of the document was fully explained to said Segunda O Vda.
De Arcilla and that she voluntarily signed the same. This way petitioner
could convince that Court that in his legal fight, he had a leg on which to
stand. It thus results that reversal of the order complained of, as well as
the judgment rendered thereon would be an idle ceremony. It would not
advance of for that matter serve the ends of justice. It would only result
in another waste of time, effort and expense. Paraphrasing what this
Court has stated in Paner vs. Yatco it would be pointless to re-open this
case, ‘for like a mirage it would merely raise false hopes and in the end
avail her (his) nothing. (Arcilla vs. Arcilla, 138 SCRA 560)

Non-appearance of counsel at the trial due to asthma attack is not

intended to delay the case; Rules should not be applied strictly and the
interest of justice would have been better served if petitioners had been
accorded their day in court. x x x Considering that the petition for relief
was filed within the prescribed period and that the herein petitioners
appear to have a meritorious and plausible defense, the respondent judge
should have ordered the reopening of the case for the reception of
defendants’ evidence. (Vda. De Carcallas vs. Yancha, 156 SCRA 608-
609)

Petition for relief from judgment is not available, absent fraud or

excusable neglect which prevented a party from filing a seasonable
appeal. We held that the failure of Kapisanan to perfect its appeal was
not a pardonable oversight. It is not entitled to relief from judgment
because there was no fraud or excusable neglect which prevented it from
seasonably appealing to the CFI. Moreover, its petition had no affidavits
of merits. (FJR Garments Industries vs. Court of Appeals, 130 SCRA
216).

Section 4

Section 5

It is clear in Section 4 of Rule 38 that the Court shall require an

answer to a petition for relief from judgment only if the petition is
sufficient in form and substance to justify relief. Since in this case, the
petition for relief was based principally on newly discovered evidence,
which is not one of the grounds of relief the court correctly denied the
same without requiring an answer. The petitioner originally filed a
motion for new trial, but since they admittedly filed it one day beyond
the reglementary period, they moved that same motion for new trial, the
ground of newly discovered evidence could have been considered,
provided it was properly supported by affidavits of the new witnesses
and ir duly authenticated copies of the newly discovered documents,
showing that such evidence was material and was probably alter the
result. (Sec. 1-b and 2 of Rule 37 in relation to Sec. 3 of Rule 121)
(Salac vs. Tensuan, 112 SCRA 651).

When petition for relief under Rule 38 is filed, motion for

suspension of the execution of judgment may be presented then or
thereafter under section 5 of Rule 38, by offering the bond therein
provided if denied it may be renewed on appeal. (Sanchez vs. Serrano
and Rodas, 83 Phil. 838-839).

Section 6
 Section 7

Under Section 6, after the answer is filed within the period fixed
by law the court shall make a preliminary finding if the allegations of the
complaint are not true. In such case an outright dismissal is proper; if it
finds said allegations to be true it shall order the judgment set aside.

The second paragraph os Sec. 2, Rule 41 of the Rules of Court,

provides: x x x A judgment denying relief under Rule 37 is subject to
appeal, and in the course thereof, a party may also assail the judgment
on the merits, upon the ground that it not supported by the evidence or it
is contrary to law. x x x. As may be seen from the above-quoted
provision, an appeal is allowed from the denial of petition for relief filed
pursuan to Rule 38 of the Rules of Court. The rule goes farther than
merely permitting such an appeal by explicitly prescribing that in the
course of such appeal, a party may also assail judgment on the merits,
upon the ground that ist is not supported by the evidence or it is contrary
to law. (Sayman vs. CA, 120 SCRA 677)

The respondent cannot be declared in default if he fails to file an

answer.

An order granting petition for relief is interlocutory and therefore,

non-appealable. Certiorari will be the proper remedy of the petitioner.

In the case of Seavan Carrier, Ind. Vs. CTI Sportswear Corp. 132
SCRA 308, the Supreme Court in the interest of justice converted the
denial of the petition for relief from judgment to a petition for certiorari,
to wit:

“However, considering that what is raised to us is a denial of a

petition for relief from judgment, we are constrained to assume certiorari
jurisdiction in the interest of justice and to pass upon the issue of
damages. The award of P2,400,000 damages against a claim and prayer
involving lost merchandise valued at only P182,059.92 and with
insufficient evidence to support it is an act amounting to grave abuse of
discretion calling for the exercise of our constitutional power to review
and reverse or modify final judgments of inferior courts.”

Under section 7, where the judgment is set aside the court shall
hear and determine the case as if a timely motion for a new trial had
been granted therein. As earlier stated, a petition for relief from
judgment is a second opportunity for the respondent to have a new trial.

After the expiration of the 6-month period, the only remedy of the
aggrieved party from the judgment of a Regional Trial Court will be to
file a complaint for annulment of judgment on the ground of extrinsic
fraud under Section 9 of BP 129.

An action for reconveyance of real property on the ground of fraud

must be filed within four (4) years from the discovery of the fraud. Such
discovery is deemed to have taken place from the issuance of the
certificates had only four years from October, 1958 or until 1962 to
bring this action, which respondents failed to do. (Cimafrance vs.
Intermediate Appellate Court, 147 SCRA 611).

Certainly plaintiffs have no case for nullifying the decision

rendered in said case on ground of fraud for the only case of fraud that
can be ground for annulment of judgment is extrinsic fraud as
distinguished from intrinsic fraud. Extrinsic fraud is one that affects and
goes into the jurisdiction of the court. it usually refers to any fraudulent
act of the successful party in a litigation committed outside the trial of
the case whereby the defeated party is prevented from presenting fully
and fairly his side of the case. (Avendana, et al. vs. M. Bautistia, et al.,
142 SCRA 39).

A careful review of the present petition and of the records of the

appellate court on this case shows that even on the assumption that all
the facts alleged in the petition are true, the petition should be dismissed
for lack of merit because the fraud allegedly perpetuated by the private
respondent in AC-G.R. SP No. 03301) is only intrinsic in nature and not
extrinsic. Fraud is regarded as extrinsic or collateral where it has
prevented a party from having a trial or from presenting all of his case to
the court. (Asian Surety & Insurance Co. vs. Island Steel, Inc., 118
SCRA 233;259; citing Amuran vs. Aquino, 38 Phil. 29) In the case at
bar, the fraud was in the nature of documents allegedly manufactured by
Marcela Gutierrez to make it appear that he was the rightful heir of the
disputed property. Hence, the Intermediate Appellate Court is correct in
finding the fraud to be intrinsic in nature. (Conde vs. Intermediate
Appellate Court, 144 SCRA 144-147)

A judgment rendered without jurisdiction is null and void and

therefore, cannot be enforced by execution. The remedy of an aggrieved
party is to file a petition for certiorari with preliminary injunction.