CIVIL PROCEDURE

Outline
Justice Magdangal M. de Leon

Basic principles

Remedial law distinguished from substantive law

Kinds of procedure
1. As to purpose
2. As to formality

Civil action, criminal action and special proceedings distinguished

Rule 1
General Provisions
(Sections 1 to 6)

Rule making power of Supreme Court

Art. VIII, Sec. 5 (5), Constitution
Art. VI, Sec. 30
Procedural and substantive rules
Force and effect of Rules of Court
Power of Supreme Court to suspend the Rules of Court
May parties change the rules of procedure?
Matters of procedure which
>may be agreed upon by the parties
>are waivable
>fall within the discretion of the court

Jurisdiction

1. Generally
a. subject matter
b. res or property
c. issues
d. parties
2. Estoppel to deny jurisdiction
Heirs of Bertuldo Hinog vs. Melicor, 455 SCRA
460 (2005)
3. Jurisdiction at time of filing of action
People vs. Cawaling, 293 SCRA 267 (1998)

Regular Courts (MTC, RTC, CA, SC)

Art. VIII, Constitution

BP 129 (Judiciary Reorganization Act of 1980)
RA 7902 (expanding the jurisdiction of the CA,
amending BP 129)

RA 7961 (expanding the jurisdiction of MetroTC,

 2

MTC, MCTC, amending BP 129)

SC Adm. Circular No. 09-94, in rel. to RA 7691
SC Circular No. 21-99, in rel. to RA 7691
RA 8369 (Family Courts Act of 1997)
SC Circular No. 11-99, in rel. to RA 8369

Special Courts
Sandiganbayan
PD 1616, as am. by RA 7975 and RA 8249

Quasi judicial bodies

SEC ( Sec. 5.2, RA 8799, Securities Regulation
Code)
CSC (Magpale vs. CSC, 215 SCRA 398 (1992))
HLURB (Sandoval vs. Caneba, 190 SCRA 77 (1991)

Kinds of action

1. As to cause or foundation
a. personal
b. real
*distinction important in determining venue
2. As to object
a. in rem
b. in personam
c. quasi in rem
*distinction important in service of summons

Commencement of action
1. Condition precedent
Katarungang Pambarangay
Lumbuan vs. Ronqullo, G.R. No. 155713, May 5, 2006
2. Payment of filing fee
Heirs of Bertuldo Hinog vs. Melicor, 455 SCRA 460 (2005), reiterating Sun Insurance
Office, Ltd. vs. Asuncion, 170 SCRA 274 (1989)

Rule 2
Cause of Action
(Rules 1 to 6)

Cause of action (Secs. 1-2) Distinguished from right of action

Splitting a cause of action (Secs. 3-4)
Joseph vs. Bautista, 170 SCRA 540 (1989)
Del Rosario vs Far East Bank and Trust Company, G.R. No. 150134, October 31, 2007
Progressive Development Corp. vs. CA, 301 SCRA 367 (1999)
CGR Corporation vs. Treyes, Jr., G.R. No. 170916, April 27, 2007
Enriquez vs. Ramos, 7 SCRA 265 (1963)
Remedy against splitting a single cause of action
a. motion to dismiss – Rule 16, Sec. 1 (e) or Sec. 1 (f)
b. answer alleging affirmative defense – Rule 16, Sec.
6
Joinder of causes of action (Secs. 5-6)
Flores vs. Mallare-Phillipps, 144 SCRA 277 (1986)
 3

What is the totality rule?

Rule 3
Parties to Civil Actions
(Sections 1 to 22)

Who may be parties (Sec. 1)

1. Natural persons
2. Juridical persons
3. Entities authorized by law (even if they lack juridical
personality)
Classification of parties
Real party in interest (Sec. 2)
Lack of personality to sue
Evangelista vs. Santiago, 475 SCRA 744 (2005)
Standing to sue
Domingo vs. Carague, 456 SCRA 450 (2005)
Representative parties (Sec. 3)
Oposa vs. Factoran, 224 SCRA 792 (1993) Indispensable parties (Sec. 7)
Domingo vs. Scheer, 421 SCRA 468
(2004)
Uy vs. CA, 494 SCRA 535 (2006)
Necessary party or proper party (Secs. 8-9)
Laperal Devt. Corp. vs. CA, 223 SCRA
261 (1993)
Permissive joinder of parties (Sec. 6)
Effects of misjoinder and non-joinder of parties
(Sec. 11)
Class suits (Sec. 12)
Mathay vs. Consolidated Bank, 58 SCRA
559 (1974)

Defendants
1. Unwilling co-plaintiff (Sec. 10)
2. Alternative defendant (Sec. 13)
3. Unknown defendant (Sec. 14; Rule 14, Sec. 14)
4. Entity without juridical personality as defendant (Sec. 15; Rule 14, Sec. 8)

Death of party; duty of counsel (Secs. 16, 20)

1. If plaintiff dies during pendency of case
2. If defendant dies, effect of his death depends upon nature of the pending action
Effect of non-substitution of a deceased party
Heirs of Bertuldo Hinog vs. Melicor, 455 SCRA 460 (2005)
De la Cruz vs. Joaquin, 464 SCRA 576 (2005)
Death or separation of party who is a public officer (Sec. 17)
Incompetency or incapacity (Sec. 18)
Transfer of interest (Sec. 19)
Indigent party (Sec. 21)
Notice to Solicitor General (Sec. 22)

Rule 4
Venue of Actions
(Sections 1 to 4)
 4

Venue defined
Distinguished from jurisdiction
Venue of real actions (Sec. 1)
Venue of personal actions (Sec. 2)
Venue of actions against non-residents (Sec. 3)
Quasi in rem = action affects personal status
of plaintiff -- residence of plaintiff
In rem = action affects property of defendant
in Phils. -– location of property

When rule not applicable (Sec. 4)

1. Where a specific rule or law provides
otherwise
Diaz vs. Adiong, 219 SCRA 631 (1993)
2. Where parties have validly agreed in writing before filing of the action on exclusive
venue thereof
Phil. Banking Corp. vs. Tensuan, 228
SCRA 385 (1993)

Waiver of improper venue

1. express waiver
2. implied waiver
Dacoycoy vs. IAC, 195 SCRA 641 (1993)
How to question improper venue
1. motion to dismiss (Rule 16, Sec. 1(c))
2. affirmative defense in answer (Rule 16,
Sec. 6)

Pleadings
(Substantial Requirements)

In general
Defined (Rule 6, Sec. 1)
Distinguished from motion (Rule 15, Sec. 1)
What allowed (Rule 6, Sec. 2)
Parts of a pleading (Rule 7)
How allegations made
In general (Rule 8, Sec. 1)
Capacity (Rule 8, Sec. 4)
Alternative claims and defenses (Rule 8, Sec. 2)
Conditions precedent (Rule 8, Sec. 3)
Fraud and mistake, condition of mind (Rule 8, Sec.
5)
Judgments (Rule 8, Sec. 6)
Official documents (Rule 8, Sec. 9)
Need to bring in new parties (Rule 6, Sec. 12)

Complaint
Defined and in general (Rule 6, Sec. 3)
Allegations
In general (Rule 8, Sec. 1)
Mathay vs. Consolidated Bank and Trust
Company, 58 SCRA 559 (1974)
Capacity of parties (Rule 8, Sec. 4)
 5

Actions based upon a document (Rule 8, Sec. 7)

Answer
Defined and in general (Rule 6, Sec. 4)
Types of defenses
Negative (Rule 6, Sec. 5(a))
How alleged, generally (Rule 8, Sec. 10)
Capacity of parties (Rule 8, Sec. 4)
Genuiness of documents (Rule 8, Sec. 8)
Negative pregnant
PHILAMGEN vs. Sweet Lines, 212 SCRA 194
(1993)
Affirmative (Rule 6, Sec. 5(b))
Implied admissions (Rule 9, Sec. 1)

Periods to plead (Rule 11, Secs. 1-3)

Waiver of defenses (Rule 9, Sec. 2)

Counterclaims
Defined and in general (Rule 6, Sec. 6)
How raised
Included in answer (Rule 6, Sec. 9; Rule 11, Sec. 8)
After answer (Rule 6, Sec. 9; Rule 11, Sec. 9)
Kinds of counterclaims
Compulsory (Rule 6, Sec. 7; Rule 9, Sec. 2)
- cannot be independently adjudicated
- jurisdiction (both as to amount and nature; exception)
- filing fees and non-forum certification not
required
Permissive
Korea Exchange Bank vs. Gonzales, 456 SCRA 224
(2005)
BA Finance Corp. vs. Co, 224 SCRA 163
(1993)

Remedies
For failure to raise compulsory counterclaim (Rule 9, Sec. 2)
Oversight, inadvertence, excusable neglect (Rule 11, Sec. 10)
In case main action fails
BA Finance Corp. vs. Co, supra

Answer to counterclaim
In general (Rule 6, Sec. 4)
Period to plead (Rule 11, Sec. 4)

Reply
Defined and in general (Rule 6, Sec. 10)
When required (Rule 6, Sec.10)
Challenge due to authenticity of documents (Rule 8, Sec. 8)

Third/Fourth Party Complaint

Defined (Rule 6, Sec. 11)
Remedies when denied

Answer to Third/Fourth Party Complaint

 6

In general (Rule 6, Sec. 13)

Time to plead (Rule 11, Sec. 5)

Extension of time to plead (Rule 11, Sec. 11)

(Formal Requirements)
Filing and Service of Pleadings,
Motions and Orders

Verification (Rule 7, Sec. 4)

Certification against forum shopping (Rule 7, Sec. 5)
Ao-As vs. CA, 491 SCRA 353 (2006)
Forum shopping certificate for a corporation
PAL vs. Flight Attendants and Stewards Assn of the Phils.(FASAP), 479 SCRA 605 (2006)
Filing and service defined (Rule 13, Sec. 2)
Coverage (Rule 13, Secs. 1, 4)
Modes of service
In general, filing (Rule 13, Sec. 3)
In general, service (Rule 13, Secs. 5, 9)
Personal (Rule 13, Sec. 6)
Mail (Rule 13, Sec. 7)
Substituted service (Rule 13, Sec. 8)
Priority (Rule 13, Sec. 11)
Upon party in default (Rule 9, Sec.3)
Completion of service (Rule 13, Sec. 10)
Proof of filing and service
Rule 13, Secs. 12, 13)
Lis pendens (Rule 13, Sec. 14)

Amended and Supplemental Pleadings

Amendments

In general (Rule 10, Sec. 1)

Liberality
Barfel Devt. Corp. vs. CA, 223 SCRA 268 (1993)
Form (Rule 10, Sec. 7)
Effect (Rule 10, Sec. 8)

Kinds
Formal amendments (Rule 10, Sec. 4)
Substantial amendments
Matter of right (Rule 10, Sec. 2)
Matter of discretion (Rule 10, Sec. 3)
To conform to evidence (Rule 10, Sec. 5)
Swagman Hotels & Travel, Inc. vs. CA,
G.R. No. 161135, April 8, 2005
Remedies
Periods to answer
Amendments (Rule 11, Sec. 3)
Supplemental complaint (Rule 11, Sec. 7)
 7

Supplemental pleadings (Rule 10, Sec. 6)

Distinquished from amended pleadings
Shoemart, Inc. vs. CA, 190 SCRA 189 (1990)

Bill of Particulars/Intervention

Bill of particulars (Rule 12, Secs. 1 to 6)

Office and purpose
Virata vs. Sandiganbayan, 221 SCRA 52 (1993)
What is beyond its scope
Tan vs. Sandiganbayan, 180 SCRA 34 (1989)

Intervention (Rule 19, Secs. 1 to 4)

Ancillary to pending action
Saw vs. CA, 195 SCRA 740 (1991)
Exception
Metropolitan Bank & Trust Co. vs. Presiding Judge,
182 SCRA 820 (1990)

Rule 14
Summons
(Sections 1 to 20)

Definition and purpose

Duty to issue (Secs. 1, 5)
Form
Content (Sec. 2)
If with leave of court (Sec. 17)
Who serves (Sec. 3)
On whom
In general (Secs. 1, 6)
Entity without juridical personality (Sec. 8)
Associations
Domestic (Sec. 11)
List exclusive
E.B. Villarosa & Partner Co., Ltd. vs. Benito,
312 SCRA 65 (1999)
Foreign (Sec. 12)
Northwest Orient Airlines, Inc. vs. CA. 241
SCRA 192 (1995)
Public corporation (Sec. 13)
Minors (Sec. 10)
Insane, incompetents (Sec. 13)
Prisoners (Sec. 10)
Unknown defendant (Sec. 14)
*whether in rem, quasi in rem or personal
Residents temporarily out (Secs. 16)
Non-resident (Sec. 15)
*in rem, quasi in rem
Modes of service
 8

personal (Sec. 6)
substituted (Sec. 7)
Robinson vs. Miralles, G.R. No. 163584, December 12, 2006)
publication (Sec. 14)
extraterritorial (Secs. 15,16)
Valmonte vs. CA, 252 SCRA 92 (1996)
Perkin Elmer Singapore Pte Ltd. vs. Dakila Trading Corporation, G.R. No. 172242, August
14, 2007
♦ registered mail invalid service of summons
Voluntary appearance (Sec. 20)
Delos Santos vs. Montesa, 221 SCRA 15 (1993)
Orion Security Corporation vs. Kalfam Enterprises, Inc., G.R. No. 163287, April 27,
2007
Return of service (Sec. 4)
Proof of service (Sec. 18)
publication (Sec. 19)

Rule 15
Motions
(Sections 1 to 10)
In general (Sec. 1)
Form (Sec. 2)
Generally (Sec. 10)
May be oral (Sec. 2)
Motion for leave (Sec. 9)
Prohibited motion
Contents (Sec. 3)
Omnibus motion rule (Sec. 8)
Exceptions (Rule 9, Sec. 1)
Notice of hearing (Secs. 4, 5)
General rule = without compliance – scrap of paper
Exceptions
Motions which may be granted ex parte
Where adverse party had opportunity to oppose
Lanto vs. Dimaporo, 16 SCRA 599 (1966)
Vlason Enterprises Corp. vs. CA, 330 SCRA 26
(1999)
Proof of service (Sec. 6)
Hearing of motions (Sec. 7)

Rule 16
Motion to Dismiss
(Sections 1 to 6)

Four general types of motion to dismiss under the Rules

1. Motion to dismiss before answer (Rule 16)
2. Motion to dismiss by plaintiff (Rule 17)
3. Motion to dismiss on demurrer to evidence after plaintiff has rested his case under
Rule 33
 9

4. Motion to dismiss appeal either in RTC (Rule 41, Sec. 13), CA (Rule 50, Sec. 1) or
SC (Rule 56, Sec. 5)

Grounds (Sec. 1)
Lack of jurisdiction
Boticano vs. Chu, 148 SCRA 541 (1987)
Res judicata
Del Rosario vs Far East Bank and Trust Company, G.R. No. 150134, October 31,
2007
No cause of action
Halimao vs. Villanueva, 253 SCRA 1 (1996)
Tan vs. CA, 295 SCRA 247 (1998)

Statute of frauds
Asia Production Co., Inc. vs. Pano, 205 SCRA 458
(1992)
Condition precedent
Sunville Timber Products, Inc. vs. Abad, 206 SCRA 482
(1992)
Who files
How pleaded
Period (Sec. 1)
As affirmative defense (Sec. 6)
- counterclaim which may be prosecuted in same or separate action refers to
permissive counterclaim
Hearing and resolution (Secs. 2, 3)
Municipality of Binan vs. CA, 219 SCRA 69 (1993)
- preliminary hearing not mandatory
- preliminary hearing on an affirmative defense for
failure to state a cause of action is not necessary
Effects
Of dismissal (Sec. 5)
On periods for pleading (Sec. 4)
On other grounds and omnibus motion rule (Rule 9, Sec. 1; Rule 15, Sec. 8)

Remedies
If motion granted – appeal or refile complaint
If motion denied - file answer, unless without jurisdiction, in which case, Rule 65 petition
NPC vs. CA, 185 SCRA 169 (1990)

Rule 17
Dismissal of Actions
(Sections 1 to 4)

Upon notice by plaintiff – before answer (Sec. 1)

O.B. Jovenir Construction and Development Corp. vs.
Macamir Realty and CA, G.R. No. 135803, March 26, 2006
Upon motion of plaintiff – after answer (Sec. 2)
Due to fault of plaintiff (Sec. 3)
Cruz. vs. CA, G.R. No. 164797, February 13, 2006
Effect on counterclaim
Pinga vs. Santiago, G.R. No. 170354, June 30, 2006
 10

Perkin Elmer Singapore Pte Ltd. vs. Dakila Trading Corporation, G.R. No. 172242,
August 14, 2007
Remedy of plaintiff
Ko vs. PNB, 479 SCRA 298, January 28, 2006
Dismissal of counterclaims (Sec. 4)

Default
Rule 9, Sec. 3

Nature in general (Sec. 3, first par.)

When may a defendant be declared in default?
1. Failure to file answer (Rule (9, Sec. 3)
2. Failure to furnish copy of answer
3. Failure to appear at pre-trial (Rule 18, Sec. 5)
4. Failure to comply with modes of discovery
( Rule 29, Sec. 3 [d])

When allowed (Sec. 3, first par.)

Effect (Sec. 3(a), (c))

Gajudo vs. Traders Royal Bank, G.R. N o. 151098, March 21, 2006
Vlason Enterprises Corp. vs. CA, 310 SCRA 26 (1999)

Order of default
When some answer and others default (Sec. 3 (c))
Extent of relief to be awarded (Sec. 5)
Where not allowed (Rule 9, Sec. 3 (e))
Procedure after order of default (Sec. 3, first par.)
Remedy from order of default
Motion to set aside (Sec. 3(b))
Ramnani vs. CA, 221 SCRA 582 (1993)
Remedies from judgment by default
Before finality

or new trial (Rule 37)

Appeal (Rules 40 and 41)
Martinez vs. Republic, G.R. No. 160895, October 30, 2006
After finality
Petition for relief from judgment (Rule 38)
Annulment of judgment (Rule 47)
Is certiorari a proper remedy?
Jao vs. CA, 251 SCRA 391 (1995)
Indiana Aerospace University vs. CHED, 356 SCRA
367 (2001)

Rule 18
Pre-Trial
(Sections 1 to 7)

Nature (Sec. 2)
When (Sec. 1)
 11

LCK Industries Inc. vs. Planters Development Bank, G.R. No. 170606, November 23, 2007
Requirements for appearance (Sec. 4)

Procedure
Duty to set (Sec. 1)
Effect of I.A.1.2, A.M. No. 03-1-09-SC (Rule on Guidelines to be Observed by Trial Court
Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery
Measures), which took effect on August 16, 2004
Notice (Sec. 3)
Pre-trial brief required (Sec. 6)
Record or order of pre-trial (Sec. 7)

Consequences
Order (Sec. 7)

Effect of failure to appear (Secs. 5, 6 (last par.))

Calalang vs. CA, 217 SCRA 462 (1993)
On plaintiff (see Rule 17, Sec. 3)
On defendant, compare with default (Rule 9, Sec. 3)
Citibank N.A. vs. Chua, 220 SCRA 75 (1993)
No pre-trial brief (Rule 18, Sec.7)

Rule 20
Calendar of Cases
(Sections 1 and 2)

Calendar (Sec. 1)
Preferences (Sec. 1)
Assignment of cases (Sec. 2)

Rule 22
Computation of Time
(Sections 1 and 2)

Rule 30
Trial
(Sections 1 to 9)

Notice of trial (Sec. 1)

Adjournments and postponements (Sec. 2)

Absence of evidence (Sec. 3)
Illness of party or counsel (Sec. 4)

Subpoena, Rule 21

Conduct
Order of trial (Sec. 5)
Agreed statement of facts (Sec. 6; Rule 18, Secs. 2(d), 7)
 12

Statement of judge (Sec. 7)

Suspension of actions (Sec. 8)
Arts. 2030 & 2035, Civil Code
Duty of judge to receive evidence and power to delegate
to clerk of court (Sec. 9)
Trial by commissioner, Rule 32, Secs. 1 to 3 only

Consolidation of trial, Rule 31, Sec. 1. Compare with Rule 2, Sec. 5 & Rule 3, Sec. 6.
Severance of trial, Rule 31, Sec. 2

Lack of cause of action may be cured by evidence presented during the trial and
amendments to conform to the evidence.
Swagman Hotels & Travel, Inc. vs. CA, G.R. No. 161135, April 8, 2005

Rule 33
Demurrer to Evidence
(Section 1)

Republic vs. Tuvera, G.R. No. 148246, February 16, 2007

Distinguished from motion to dismiss for failure to state a cause of action (Rule 16, Sec. 1
(g))
The Manila Banking Corp. vs. University of Baguio, Inc., G.R.No. 159189, February 21,
2007
Distinguished from demurrer in criminal case (Rule 119, Sec. 23)

Rule 34
Judgment on the Pleadings
(Section 1)

Meneses vs. Secretary of Agrarian Reform, G.R. No. 156304, October 23, 2006
Distinguished from summary judgment
Diman vs. Alumbres, 299 SCRA 459 (1998)

Rule 35
Summary Judgments
(Sections 1 to 6)

Ontimare vs. Elep, G.R. No. 159224, January 20, 2006

Motion required
Asian Construction and Development Corp. vs. PCIB, G.R. No. 153827, April 25, 2006.

Rule 36
Judgments, Final Orders and Entry
(Sections 1 to 8)

Form (Rule 36, Sec. 1)

Concept of final judgment and final order
See also Rule 41, Sec. 1
BA Finance Corp. vs. CA, 229 SCRA 566 (1994)

Kinds (as to finality)

 13

Rendition of judgment (Rule 36, Sec. 1)

Entry of judgment (Rule 36, Sec. 2)
Entry of satisfaction of judgment (Rule 39, Secs. 44 and
45)

Kinds (as to process of procuring)

Judgment on the pleadings, Rule 34
Judgment on demurrer to evidence, Rule 33
Summary judgments, Rule 35
Default judgments, Rule 9, Sec. 3
Judgments after ex parte presentation of evidence, Rule
18, Sec. 5
Orders for dismissal
Motion to dismiss, Rule 16
Dismissals under Rule 17
Dismissals under Rule 18, Sec. 5
Dismissals under Rule 29, Sec. 5

Kinds (as to parties)

As against one or more several parties, Rule 36, Sec. 3
Several judgment, Rule 36, Sec. 4
Against entity without juridical personality, Rule 36, Sec.
6

Kinds (as to claims)

Entire
At various stages or separate judgments, Rule 36, Sec. 5
See also Rule 41, Sec. 1 (g)

Kinds (as to how executed)

Judgments not stayed on appeal, Rule 39, Sec. 4
Judgments for money, Rule 39, Sec. 9
Judgments for specific acts, Rule 39, Sec. 10
Special judgments, Rule 39, Sec. 11

Effect of judgments and final orders

Local, Rule 39, Sec. 47
Foreign, Rule 39, Sec. 48

Amendment of judgment
Before it becomes final and executory
Eternal Gardens Memorial vs. IAC, 165 SCRA 439
(1988)
After it becomes final and executory
Nunal vs. CA, 221 SCRA 26 (1993)
Industrial Timber Corp. vs. NLRC, 233 SCRA 597
(1994)
Supplemental judgment
Esquivel vs. Alegre, 172 SCRA 315 (1989)
Judgments nunc pro tunc
Cardoza vs. Singson, 181 SCRA 45 (1990)
Law of the case
Bar by former judgment and conclusiveness of judgment
distinguished
 14

Del Rosario vs Far East Bank and Trust Company, G.R. No. 150134, October 31,
2007

Immutability of final judgment

Griffith vs. Estur, G.R. No. 161777, May 7, 2008

Remedies against Judgments or

Final Orders

Remedies before finality of judgment

1. Motion for reconsideration
2. Motion for new trial
3. Appeal
a. Ordinary appeal
Rule 40
Rule 41
b. Petition for review
Rule 42
Rule 43
c. Petition for review on certiorari
Rule 45

Remedies after finality of judgment

1. Petition for relief from judgment
2. Annulment of judgment
3. Petition for certiorari

New Trial or Reconsideration

Rule 37
(Sections 1 to 9)

Grounds and nature (Sec. 1)

Motion for new trial (Sec. 1, par. 1)
Distinguish from motion to reopen trial

Motion for reconsideration (Sec. 1, par. 2)

Periods (Sec. 1)
For filing
Effect of motion for extension of time to file
See also Rule 41, Sec. 3, par. 2; Rule 40,
Sec. 2. par. 2

Not required for appeal

Second motion for new trial (Sec. 5, par. 1)
Second motion for reconsideration (Sec. 5, par. 2)
For resolution (Sec. 4)

Contents
In general (Sec. 2). See also Rule 15, Sec. 3
Motion for new trial (Sec. 2, par. 2)
Motion for reconsideration (Sec. 2, par. 3)
 15

Pro forma motion and its effects (Sec. 2, par. 4)

Marina Properties Corp. vs. CA, 294 SCRA 273 (1998)

Action by court
Options in general (Sec. 3)
Grant of motion for new trial (Sec. 6)
Partial new trial or reconsideration (Secs. 7, 8)
Denial
Remedies (Sec. 9; Rule 41, Sec. 1 (a))

Appeal

Ordinary Appeal

Rule 40
MTC to RTC
(Sections 1 to 9)
Where to appeal (Sec. 1)
When to appeal (Sec. 2)
How to appeal (Sec. 3)
Perfection of appeal (Sec. 4)
See Rule 41, Sec. 9
Appellate court and other lawful fees (Sec. 5)
Same as Rule 41, Sec. 4
Procedure in RTC (Sec. 7)

Appeal from MTC order dismissing case

a. without trial on the merits (Sec. 8, par. 1)
b. with trial on the merits (Sec. 8. par. 2)
Provost vs. CA, G.R. No. 160406, June 26, 2006
Encarnacion vs. Amigo, G.R. No. 169793, September 15, 2006

Rule 41
RTC to CA
(Sections 1 to 13)
Subject of appeal (Sec. 1)
Non-appealable orders
A.M. No. 07-7-12-SC (dated December 4, 2007 – took effect on December 27, 2007) –
Amendments to Rules 41, 45, 58 and 65
Modes of appeal (Sec. 2)
Period of ordinary appeal (Sec. 3)
Interrupted by timely MNT or MR
No motion for extension of time to file MNT or MR
MR filed on last day of 15-day period
Manila Memorial Park vs. CA, 344 SCRA 769 (2001
New rule on appeal after denial of MR or MNT
Neypes vs. CA, 469 SCRA 633 (2005)

When appeal allowed even if period to appeal

has expired
Trans International vs. CA, 285 SCRA 49
(1998)
RTC cannot dismiss appeal on ground that only questions of law involved
Kho vs. Camacho, 204 SCRA 150 (1991)
 16

Appellee who has not appealed may not obtain affirmative relief from appellate court
Custodio vs. CA, 253 SCRA 483 (1996)
Exception – when there is solidarity in obligations
Citytrust Banking Corp. vs. CA, 196 SCRA 553 (1991)

Perfection of appeal (Sec. 9, 1st and 2nd pars.)

Loss of jurisdiction (Sec. 9, 3rd and 4th pars.)

Residual powers (Sec. 9, 5th par.)

IAPOA

Dismissal of appeal (Sec. 13)

a. late fiiing
b. non-payment of docket and other lawful fees

Petition for Review

Rule 42
RTC to CA
(Sections 1 to 8)
.
Appeal from RTC decision rendered in the exercise of its appellate jurisdiction
Ross Rica Sales Center, Inc. vs. Ong, G.R. No. 132197, August 16,
2005

Pure questions of law may be raised (Sec. 2)

Macawiwili Gold Mining and Devt. Co, Inc.
vs. CA, 297 SCRA 602 (1998)
Effect of failure to comply with requirements (Sec. 3)

Action by court (Sec. 4)

a. Require filing of comment or
b. Dismiss petition outright
PPQ
When petition given due course (Sec. 6)
- prima facie finding that lower court has committed
errors of fact or law warranting reversal or modification
Petition dismissed for late filing after finding the same prima
facie meritorious
Ditching vs. CA, 263 SCRA 343 (1996)

Perfection of appeal (Sec. 8, 1st par.

Loss of jurisdiction (Sec. 8, 2nd par.)
Residual powers (Sec. 8, 3rd par.)
IAPOA
Effect of appeal (Sec. 8, 4th par.)
General rule: shall STAY judgment or final order
Exceptions:
a. civil cases decided under the Rule on Summary Procedure
b. when CA, law or Rules of Court provide otherwise

Rule 43
Quasi-Judicial Agencies to CA
 17

(Sections 1 to 13)

Scope (Sec.1)
Fabian vs. Desierto, 295 SCRA 440 (1998)
Ombudsman criminal cases – Supreme Court via
Rule 65
Garcia-Rueda vs. Pascasio, 278 SCRA 269 (1997)
Cases not covered (Sec. 2)
St. Martin Funeral Home vs. NLRC, 295 SCRA
494 (1998)
Decisions of Secretary of Labor and Director of Bureau of
Labor Relations – petition for certiorari to CA under Rule 65
Decisions of DOJ Secretary in petitions for review prosecutors’ resolutions – petition for
certiorari to CA under Rule 65
Santos vs. Go, 473 SCRA 350 (2005)
Not applicable where there is error of jurisdiction
Fortich vs. Corona, 289 SCRA 624 (1998)
Where to appeal (Sec. 3)
Pure questions of law may be raised
Period of appeal (Sec. 4)
How appeal taken (Sec. 5)
Form and contents (Sec. 6)
Effect of failure to comply with requirements (Sec. 7)
- sufficient ground for dismissal
Action by court (Sec. 8)
a. Require fiing of comment or
b. Dismiss petition outright
PPQ
When petition given due course (Sec. 10)
- prima facie finding that court or agency committed
errors of fact or law warranting reversal or modification
Effect of appeal (Sec.12)
General rule: shall NOT STAY award, judgment, final order
or resolution
Exceptions:
a. when CA directs otherwise
b. when the law directs otherwise (additional exception)
Lapid vs. CA, 334 SCRA 738 (2000

Petition for Review on Certiorari

Rule 45
(Sections 1 to 9)

What to file; from what courts (Sec. 1)

CA, SB, CTA, RTC only
Remedies of appeal and certiorari mutually exclusive; Rule 45 distinguished from
Rule 65; petition for certiorari treated as petition for review
Nunez vs. GSIS Family Bank, 475 SCRA 305 (2005)
Only questions of law may be raised
Questions of law and questions of fact distinguished; if no questions of fact, Rule 45
petition.
China Road and Bridge Corp. vs. CA, 348 SCRA 401 (2000)
 18

Time for filing (Sec. 2)

Docket and other lawful fees (Sec. 3)
Proof of service (Sec. 3)
Contents of and documents to accompany petition (Sec. 4)
Effect of failure to comply with requirements (Sec. 5, par. 1)
- sufficient ground for dismissal
Denial motu proprio (Sec. 5, par. 2)
W(P)PQ
Review discretionary (Sec. 6)
- not a matter of right but of sound judicial discretion
- granted only when there are special and important reasons
Pleadings and documents that may be required (Sec. 7)
- to determine whether to dismiss or deny petition under Sec. 5
- where petition given due course under Sec. 8
Rule applicable to both civil and criminal cases (Sec. 9)

Petition for Relief from Judgments, Orders

or Other Proceedings
Rule 38
(Sections 1 to 7)

Grounds and nature (Secs. 1, 2)

Grounds
Requires final judgment or loss of appeal
Can this remedy be availed of in the Court of Appeals?
Time for filing (Sec. 3)
Strictly followed
Escueta vs. Lim, G.R. No. 137162, January 24, 2007
Contents
Affidavit of merit (Sec. 3)
When motion for reconsideration considered as petition
for relief
Action of court before answer
Power to deny (Sec. 4)
Preliminary injunction pending proceedinsg (Sec. 5)
Order to file answer (Sec. 4)
Procedure
Availability of preliminary injunction (Sec. 5)
Proceedings after answer is filed (Sec. 6)
Where denial of appeal is set aside (Sec. 7)
Action of court after giving due course
Grant of petition for relief (Sec. 7)
Denial of petition for relief (Rule 41, Sec. 1 (b))
Remedies after petition for relief expires
Reopening not allowed
Alvendia vs. IAC, 181 SCRA 282

Annulment of Judgment
Rule 47
(Sections 1 to 10)

When remedy available

Where applicable
 19

People vs. Bitanga, G.R. No. 159222, June 26, 2007

Fraginal vs. Paranal, G.R. No. 150207, February 22, 2007
Grande vs. University of the Philippines, G.R. NO. 148456, September 15, 2006
Grounds (Sec. 2)
Cosmic Lumber Corp. vs. CA, 265 SCRA 166 (1996)
Where petition filed (Secs. 1, 10)
Period for filing (Sec. 3)
Laches
Marcelino vs. CA, 210 SCRA 444 (1992)
Parties and contents (Sec. 4)
May be filed by a non-party to the judgment
Available even if judgment has been executed (Sec. 9)
Islamic Da’Wah Council of the Phils. vs. CA, 178 SCRA 178
(1989)
Action by the court (Sec. 5)
Procedure (Sec. 6)
Effect of judgment (Sec. 7)
Suspension of prescriptive period (Sec. 8)

Certiorari
Rule 65

Constitutional provisions on judicial power

Art. VIII, Sec. 1, par. 2, Constitution

Petition for certiorari, in general (Sec. 1)

Distinction between without jurisdiction, in excess of jurisdiction and grave of abuse of
discretion

Remedy to correct errors of jurisdiction

Jamer vs. NLRC, 278 SCRA 632 (1997)
Distinction between error of jurisdiction and error of judgment
a. When court without jurisdiction and it rendered decision, committed error of
jurisdiction - decision null and void even if correct, and remedy is
certiorari.
b. When court with jurisdiction and rendered decision, but decision not correct,
committed error of judgment – decision valid even if wrong, and remedy
is appeal

Questions of fact cannot be raised

Day vs. RTC of Zamboanga City, 191 SCRA 610
(1999)
Neither questions of fact nor of law entertained
Romy’s Freight Service vs. Castro, 490 SCRA 165 (2006)
Only issue involved is jurisdiction, either want of or excess thereof
Gerardo vs. De la Pena, 192 SCRA 691 (1992)

Distinction between certiorari under Rule 45 as a mode of appeal and certiorari under
Rule 65 as a special civil action
Banco Filipino Savings and Mortgage Bank vs. CA, 334 SCRA 305 (2000)

No appeal, nor any plain, speedy and adequate remedy

General rule, if appeal available, no certiorari
Fajardo vs. Bautista, 232 SCRA 292 (1994)
 20

Exceptions
May be availed of even when appeal is available or period to appeal has expired
Luis vs. CA, 184 SCRA 230 (1993)
When appeal not adequate, or equally beneficial,
speedy or adequate
Jaca vs. Davao Lumber Co., 113 SCRA 107
(1982)
Motion for reconsideration required; exceptions
Tan vs. CA, 275 SCRA 568 (1997)

Period for filing (Sec. 4)

Discovery

Read Rules 23 to 29
Deposition - definition and purposes
People vs. Webb, 312 SCRA 573 (1999)
When taken
Dasmarinas Garments, Inc. vs. Reyes, 225 SCRA 622 (1993)
When leave of court required
Republic vs. Sandiganbayan, 204 SCRA 212 (1991)
Request for admission
Po vs. CA, 164 SCRA 668 (1988)
Importance of discovery procedures
A.M. No. 03-1-09-SC dated July 13, 2004
Guidelines to be observed by trial court judges and clerks
of court in the conduct of pre-trial and use of deposition- discovery procedures
Hyatt Industrial Manufacturing Corps. vs. Ley Construction and
Development Corp., G.R. No. 147143, March 10, 2006

Rule 39
Execution
(Secs. 1 to 48)

Judgment or final order (Sec. 1)

Losing party must first receive notice of the judgment before the court or its personnel
can execute the judgment
Office of the Court Administrator vs. Corpuz, 412 SCRA 1 (2003)
Kinds of execution
1. According to nature
a. Matter of right (Sec. 1)
- enforceable by mandamus
b. Discretionary (Sec. 2)
2. According to mode of enforcement
a. By motion (Sec. 6, first sentence)
b. By independent action (Sec. 6, 2nd sentence)

Judgments which are immediately executory

1. MTC judgment in forcible entry and unlawful detainer
(Rule 70, Sec. 19), or RTC judgment on appeal against
defendant (Id., Sec. 21)
2. Judgment in action for injunction, receivership, accounting, support (Sec. 4)
Order of execution cannot be appealed (Rule 41, Sec. 1 (f))
Discretionary execution (execution pending appeal) (Secs.
2, 3, 5)
 21

1. When and where to file motion

a. Before appeal perfected – with trial court
b. After appeal perfected – with appellate court
2. Trial court can grant motion for execution pending
appeal even after perfection of appeal (Sec. 9, last
par.)
Grounds of motion for execution pending appeal (Sec. 2(a),
last par.)
Execution pending appeal applies to election cases.
Balajonda vs. COMELEC, G.R. No. 166032, February 28, 2005
Stay of execution pending appeal (Sec. 3)

Bonds in execution
1. Bond filed by judgment debtor to stay execution pending
appeal – supersedeas bond (Sec. 3)
2. Bond of judgment obligor to enable sheriff to continue
holding levied property after affidavit of third party claim
filed with him (Sec. 16)

Effect of reversal of executed judgment on appeal (Sec. 5)

Modes of execution (Sec. 6)

1. By motion within 5 years from date of entry of judgment
2. By independent action called “revival of judgment” after 5
years and before it is barred by statute of limitations

Execution in case of death of party

1. Sec. 7
2. See effect of death of party on pending action
(Rule 3, Sec. 16)

Lifetime of writ of execution (Sec. 14)

Jalandoni vs. PNB, 108 SCRA 102 (1981)

Execution of judgments for money, how enforced (Sec. 9)

1. Immediate payment on demand
2. Satisfaction by levy
Meaning of levy
Fiestan vs. CA, 185 SCRA 751 (1990)
- three different kinds of sales under the law
(a. ordinary execution sale under Rule 39; b. judicial foreclosure sale under
Rule 68; c. extrajudicial foreclosure sale under Act 3135)
Execution of money judgments under Rule 39, Sec. 9 – promissory note not allowed.
Dagooc vs. Erlina, A.M. No. P-04-1857 (formerly OCA I.P.I. No. 02-1429-P),
March 16, 2005
Effect of levy on execution as to third persons (Sec. 12)
Campillo vs. CA, 129 SCRA 513 (1984)
3. Garnishment of debts and credits
Meaning of garnishment
Manila Remnant Co., Inc. vs. CA, 231 SCRA 281
(1994)
Garnishment of bank deposits - does not violate bank
secrecy law (RA 1405)
Garnishment of public funds
 22

Third party claim (Sec. 16)

1. How made
2. Who acts on the claim?
If disapproved, remedies of third party claimant
- file separate action to determine title or right of
possession
- file complaint for damages against bond filed by
judgment creditor

Sale on execution (Sec. 15)

1. Real property
2.Personal property
3. In all cases
4. Conveyance of property sold to highest bidder, how
made (Secs. 23, 24, 25, 26)

Redemption (Secs. 27, 28)

1. Right of redemption
a. Personal property
b. Real property
2. Who may redeem? (Sec. 27)
a. Judgment obligor or his successor in interest
b. Creditor who is a redemptioner
3. Time and manner of, and amounts payable on, successive
redemption, etc. (Sec. 28)
a. Judgment debtor (or his successor in interest), if
exercising redemption ahead of mere redemptioner –
within 1 year from date of registration of sheriff’s
certificate of sale (with Register of Deeds)
b. Redemptioner exercising redemption ahead of
judgment debtor (or his successor in interest) –
within 1 year from date of registration of certificate
of sale
c. Redemptioner redeeming from another redemptioner –
within 60 days after the last redemption

Deed and possession after expiration of redemption period

(Sec. 33)
Purchaser or last redemptioner entitled to:
1. execution of final deed of sale by sheriff – to enable
purchaser of last redemptioner to consolidate his title
to the property and to issuance by registry of deeds of
new title in his name
2. physical possession of the property by means of a writ of
possession against judgment obligor or his successor or interest or against any
person who occupied the land
after filing of case in which judgment was rendered and writ of execution was issued
Where third party actually holding property before
institution of case and adversely to judgment
obligor
Malonzo vs. Mariano, 170 SCRA 667 (1989)

When writ of possession may be issued:

1. sale at public auction – issued to purchaser where 12-
month redemption period had lapsed without any
 23

redemption being made

2. land registration proceedings
3. judicial foreclosure – provided debtor is in possession and
no third person, not a party to the foreclosure suit, had
intervened
4. extrajudicial foreclosure
Issuance of writ of possession – ministerial duty; pendency of civil case to annul
foreclosure immaterial

Entry of satisfaction of judgment by clerk of court (Sec. 44)

Effects of judgments and final orders (Sec. 47)

1.
Bar by former judgment or res judicata (par. (b))
2. Conclusiveness of judgment (par. (c))
Del Rosario vs Far East Bank and Trust Company, G.R. No. 150134, October 31, 2007

Provisional Remedies

Rule 57
Preliminary Attachment
(Secs. 1-20)

Nature of attachment
Davao Light & Power Co., Inc. vs. CA, 204 SCRA 343
(1991)
Olib vs. Pastoral, 188 SCRA 692 (1990)

When issued; grounds (Sec. 1)

1. Action for recovery of specified amount

2. Action involving embezzled property
3. Action to recover property fraudulenty taken
4. Action involving fraud in contracting or performing
obligations
5. Action against party who has removed or disposed of
property to defraud creditors
6. Action against non-resident defendant

Issuance and contents of order (Sec. 2)

Attachment bond required (Secs. 3, 4)

Writ may issue ex parte; prior or contemporaneous sevice of summons required for
enforcement (Sec. 5)
Davao Light & Power Co., Inc. vs. CA, supra
When attachment may be enforced without service of
summons
Valmonte vs. CA, 252 SCRA 92 (1994)

Discharge of attachment
1. Upon giving counterbond (Sec. 12)
2. On other grounds (Sec. 13)
3. Judgment rendered against attaching party – dismissal
 24

of principal action (Sec. 19)

Third party claim (Sec. 14)

Same procedure as in Sec. 16, Rule 39 in levy of property
on execution claimed by third party
Traders Royal Bank vs. IAC, 133 SCRA 141 (1984)

Satisfaction of judgment out of property attached (Sec. 15)

Claims for damages on account of improper, irregular or

excessive attachment (Sec. 20)
Pacis vs. Comelec, 29 SCRA 24 (1969)

Rule 58
Preliminary Injunction
(Secs. 1 to 9)

Preliminary injunction defined (Sec. 1)

Injunction as a main action
Hernandez vs. National Power Corporation, G.R. No. 145328, March 23, 2006
Nature and purpose
Sabalones vs. CA, 239 SCRA 79 (1994)
Ulang vs. CA, 225 SCRA 637 (1993)
Which court may issue writ (Sec. 2)

Territorial jurisdiction to issue writ

Decano vs. Edu, 99 SCRA 410 (1980)
Grounds for issuance (Sec. 3)
Acts consummated may not be enjoined; exceptions
Verzosa vs. CA, 299 SCRA 100 (1998)
When injunction is improper
Tay Chun Suy vs.CA, 229 SCRA 151 (1994)

Laws prohibiting injunction

PD 605 – cases involving concessions, licenses, and other
permits issued by public administrative officials or bodies
for exploitation of natural resources
PD 1818 – cases involving infrastructure and natural
resources projects of, and public utilities operated by, the
government
PD 385 – against any government financial institution taking
foreclosure of loans of which at least 20% thereof are
outstanding
Exceptions
Hernandez vs. National Power Corporation, G.R. No. 145328, March 23, 2006
Verified application and bond (Sec. 4)

Not granted without notice; exception (Sec. 5)

Distinction between RTC, CA and SC TROs

Federation of Land Reform Farmers of the Phils. vs. CA,
246 SCRA 175 (1995)
 25

Dissolution of injunction or TRO (Sec. 6)

*Counterbond – person enjoined wll pay all damages which
applicant may suffer by the denial or dissolution of the
injunction or restraining order

Judgment to include damages against party and sureties

(Sec. 8)
Same procedure as in Sec. 20, Rule 57
When final injunction granted (Sec. 9)

Rule 59
Receivership
(Sections 1 to 9)

Receiver defined
Normandy vs. Duque, 29 SCRA 385 (1969)

Appointment of receiver (Sec. 1)

Receivership other than that under Rule 58

1. Receivership in aid of execution of judgment under Rule 39, Sec. 1
2. Bank receivership
3. Receivership in petitions for insolvency under the Insolvency Law

Notice and hearing required

- incumbent upon applicant to present evidence to establish
condition precedent that property is in danger of being lost.
removed or materially injured unless a receiver is
appointed to guard and preserve it

Oath and bond of receiver (Secs. 2,4)

Denial of application or discharge of receiver (Sec. 3)

1. Upon motion and prior notice, receivership may be
discharged if it shown that his appointment was obtained
without sufficient cause;
2. Adverse party files a counterbond – will pay applicant all damages he may suffer by
reason of acts, omissions, or other matters specified in the application as ground for
such appointment. (Compare to counter-bond in injunction).

General powers of receiver (Sec. 6)

Judgment to include recovery against sureties (Sec. 9)

Same procedure as in Rule 57, Sec. 20
See Rule 58, Sec. 8

Rule 60
Replevin
(Sections 1 to 10)

Replevin defined
BA Finance Corp. vs. CA, 258 SCRA 102 (1996)
Nature
 26

Chiao Liong Tan vs. CA, 228 SCRA 75 (1993)

Application (Sec. 1)
Affidavit and bond (Sec. 2)
Foreclosure of chattel mortgage
Northern Motors, Inc. vs. Herrera, 49 SCRA 392
(1973)
Replevin does not issue against property in custodia
legis
Order to deliver property (Sec. 3)
Where writ may be served (anywhere in the Phils.)
Is hearing required? (Compare to preliminary attachment and
preliminary injunction)
N.B. Unlike in attachment and injunction which is
usually issued only after hearing, with certain exceptions,
order for delivery of personal property as a provisional remedy
is issued ex parte and, given the requisites for its issuance,
is granted as a matter of course.

Return of property (Sec. 5)

*Counterbond – double the value of the property, for
delivery thereof to the applicant, if such be adjudged, and
for payment of such sum as may be recovered against
the adverse party

Disposition of property by sheriff (Sec. 6)

- property seized not to be delivered immediately to
plaintiff but must retain it in custody for 5
days and shall return it to the defendant if the
latter files a counterbond and requires its return
- counterbond must be filed within 5 days from
taking of property; period mandatory, so that a
lower court which approves a counterbond filed
beyond the period acts in excess of jurisdiction

Third party claim (Sec. 7)

See Rule 39, Sec. 16; Rule 57, Sec. 14

Judgment to include recovery against sureties (Sec. 10)

Same procedure as in Rule 57, Sec. 20
See Rule 58, Sec. 8; Rule 59, Sec. 9

Rule 61
Support Pendente Lite
(Sections 1 to 7)

Support during pendency of action for support

Pendente lite – pending or during litigation
N.B. Amount of support temporarily fixed by
the court in favor of the persons entitled
thereto during the pendency of the action
for support

Support pendente lite in other actions

1. habeas corpus filed by the mother on behalf
 27

of a minor child against the father, where the

father has recognized the child as his own and
has not been giving him support
2. rape cases for the offspring of the accused as a
consequence thereof

Special Civil Actions

Rule 62
Interpleader
(Sections 1 to 7)

Interpleader defined
Beltran vs. People’s Homesite and Housing Corp.,
29 SCRA 145 (1969)

Rule 63
Declaratory Relief and Similar Remedies
(Sections 1 to 6)

Declaratory relief defined

Board of Optometry vs. Colet, 260 SCRA 88 (1996)
Distinguish from interpleader
N.B. Interpleader - filed by person who claims
no interest whatsoever in the subject matter.
Declaratory relief – party seeking relief has legal
interest in the controversy

When remedy improper – where there is a breach of a

contract, or violation of statute or right
Ollada vs. CB, 5 SCRA 297 (1962)

Conversion into ordinary action (Sec. 6)

- the parties may then amend their pleadings
accordingly

RTC has exclusive jurisdiction – SC has no jurisdiction over petitions for declaratory relief

Rule 64
Review of Judgments and Final Orders or Resolutions of
COMELEC and COA
(Sections 1 to 9)

What may be reviewed by the Supreme Court

Garcia vs. CA, 259 SCRA 99 (1996)

Motion for reconsideration of decision of COMELEC Division required; not of COMELEC En

Banc
N.B. Sec. 1 (d) of COMELEC Rules of Procedure = no MR of en banc ruling,
resolution, order or decision except in election cases.
N.B. MR of COMELEC Division ruling should first be filed with COMELEC En Banc, whose
decision may be brought on
certiorari to SC. Exc. when division committed grave abuse
 28

of discretion, in which case the aggrieved party may directly

file a petition for certiorari with SC

Rule 65
Prohibition and Mandamus

Prohibition (Sec. 2)
Nature and purpose
Vergara vs. Rugue, 78 SCRA 312 (1977)

The writ of prohibition does not lie against the exercise of a quasi-legislative function
Holy Spirit Homeowners Association vs. Defensor, G.R. No. 163980, August 3, 2006

Mandamus (Sec. 3)
Will not issue to compel a discretionary act
Sharp International Marketing vs. CA, 201 SCRA
299 (1991)
Mandamus is available only to compel the doing of an act specifically enjoined by law as a
duty
Henares, Jr. vs. Land Transportation Franchising and Regulatory Board, G.R. No. 158290,
October 23, 2006
Exception – where there is grave abuse of discretion
First Philippine Holdings vs. Sandiganbayan, 253
SCRA 30 (1996)

Common requisites (Secs. 5 to 9)

1. Verified petition
2. When and where to file petition
3. Jurisdiction to issue writ
Fortich vs. Corona, 289 SCRA 624 (1998)
4. Who should be respondents
5. Contents of petition
6. Non-forum shopping certification

Rule 66
Quo Warranto
(Sections 1 to 12)

Definition

Quo warranto and mandamus distinguished

Lota vs. CA, 2 SCRA 715 (1961)

Period for filing – within one (1) year from date petitioner
ousted from his position
Galano vs. Roxas, 67 SCRA 8 (1975)
Exception
Cristobal vs. Melchor, 78 SCRA 175 (1977)

Rule 66 of the 1997 Rules of Civil Procedure does not apply to quo warranto
cases against persons who usurp an office in a private corporation.
 29

Calleja vs. Panday, G.R. No. 168696. February 28, 2006.

Rule 67
Expropriation
(Sections 1 to 14)

Distinction between eminent domain and expropriation

Stages of expropriation
Period to appeal from order of expropriation
Municipality of Binan vs. Garcia, 180 SCRA 576 (1989)

Meaning of just compensation

Rep. Act No. 8974 mandates immediate payment of the initial just
compensation prior to the issuance of the writ of possession in favor of the
Government..
Republic vs. Gingoyon, G.R. No. 166429, December 19, 2005

Motion to dismiss is not permitted in a complaint for expropriation.

Masikip vs. City of Pasig, G.R. No. 136349, January 23, 2006

Writ of possession
Republic vs. Tagle, 299 SCRA 549 (1998)

Rule 68
Foreclosure of Real Estate Mortgage
(Sections 1 to 8)

Indispensable and necessary parties in foreclosure

complaint

Modes of foreclosure of real estate mortgage

Judicial – Rule 68
Extrajudicial – Act No. 3135, as am. by Act No. 4118

Modes of foreclosure of chattel mortgage

Judicial – Rule 68; Replevin under Rule 60 may be availed of to secure possession
of property as preliminary to its sale
Extrajudicial – Section 14, Act No. 1508

Equity of redemption
Limpin vs. IAC, 166 SCRA 87 (1988)

No right of redemption in judicial foreclosure

of real estate mortgage except when allowed by law
Ex. Sec. 47, General Banking Law of 2000
(RA 8791)

Right of redemption in extrajudicial foreclosure

Rosales vs. Yboa, 120 SCRA 869 (1983)

Filing of court action to enforce redemption has effect of preserving redemptioner’s rights
and “freezing” expiration of one year period.
 30

Banco Filipino Savings and Mortgage Bank vs. CA,463 SCRA 64

Prescriptive period to file action for deficiency in

extrajudicial foreclosure of real estate mortgage
- Ten (10) years (Arts. 1144 and 1142, Civil Code)

Writ of possession is a non-litigious proceeding - no need for notice to adverse party

De Vera vs. Agloro, 448 SCRA 203 (2005)

Writ of possession is like a writ of execution PNB vs. Sanao Marketing

Corp., 465 SCRA 287 (2005)

An action to invalidate the mortgage or the foreclosure sale is not a valid

ground to oppose issuance of writ of possession.
Sps. Arquiza vs. Court of Appeals, G.R. No. 160479, June 8, 2005

Rule 69
Partition
(Sections 1 to 13)

Partition defined
Villamor vs. CA, 162 SCRA 574 (1988)

MTC may have jurisdiction in actions for partition

Real property - P20,000.00/P50,000.00
Personal property – P300,000.00/P400,000.00

Final order decreeing partition and accounting

appealable (Sec. 2)
Appeal period – 30 days

Action for partition raises two issues

1. whether plaintiff is co-owner of property
2. assuming plaintiff is co-owner, how to
divide the property between plaintiff and
defendant or among the co-owners

Who are indispensable parties

All the co-owners (Rule 3, Sec. 7)

Who may effect partition

Alejandrino vs. CA, 295 SCRA 536 (1998)

Extrajudicial partition by heirs (Sec. 1, Rule 74)

Partition of personal property (Sec. 13)

Rule 70
Forcible Entry and Unlawful Detainer
(Sections 1 to 21)
 31

Distinguish the different actions to recover possession of real

property
1. forcible entry and unlawful detainer
2. accion publiciana
RTC has jurisdiction where cause of dispossession not among grounds for FEUD, or
possession lost for more than one year
Natalia Realty vs. CA, 391 SCRA 370 (2002)
3. accion reivindicatoria
Encarnacion vs. Amigo, G.R. No. 169793, September 15, 2006
The RTC does not have jurisdiction over all cases of recovery of possession
regardless of the value of the property involved
Quinagoran vs. Court of Appeals, G.R. No. 155179. August 24, 2007
Atuel vs. Valdez, June 10, 2003, 403 SCRA 517, 528.

When the complaint fails to aver facts constitutive of forcible entry or unlawful detainer
Valdez, Jr. vs. Court of Appeals, G.R No. 132424, May 4, 2006

Jurisdiction - Municipal Trial Court

Exception – estoppel by laches
Velarma vs. CA, 252 SCRA 406 (1996)

Effect of claim of ownership on MTC jurisdiction

Hilario vs. CA, 260 SCRA 420 (1996)
Cases that do not prejudice ejectment suit
Wilmon Auto Supply Corp. vs. CA (cited in Hilario)

Forcible entry distinguished from unlawful detainer

Prior possession
Forcible entry - required
Unlawful detainer – not required

Possession by tolerance
Heirs of Rafael Magpily vs. De Jesus, 474 SCRA 366 (2005)

When to count one-year period

Forcible entry – from actual entry except when there is
stealth
Ong vs. Parel, 355 SCRA 691 (2001)
Unlawful detainer – from last demand to vacate
Labastida vs. CA, 287 SCRA 662 (1998)
Exception: date of the original demand if the subsequent demands are merely in the
nature of reminders or reiterations of the original demand.
Racaza vs. Gozum, 490 SCRA 313 (2006)

Damages that can be recovered - fair rental value or the reasonable

compensation for the use and occupation of the leased property..
Dumo vs. Espinas, G.R. No. 141962, January 25, 2006

Summary nature of FEUD

See Rule on Summary Procedure

Judgment immediately executory

when stayed (Sec. 19)
cannot be stayed (Sec. 21)
 32

Ejectment case survives death of defendant

Vda de Salazar vs. CA, 250 SCRA 305 (1995)

Rule 71
Contempt
(Sections 1 to 12)

Contempt defined

Distinction between
Direct and indirect contempt
Criminal and civil contempt

Two ways of initiating indirect contempt proceedings

(Sec. 4)

Remedies
Direct contempt (Sec. 2)
Indirect contempt (Sec. 11)

Use of falsified and forged documents constitutes indirect contempt not direct
contempt
Judge Dolores Espanol vs. Atty. Benjamin Formoso, G.R. No. 150949, June 21, 2007