Civil Procedure Reviewer

Rule 13 22

Modes of Service Exceptions: 1.Personal Service a. Deliver personally a copy to the party or his counsel b. Leaving a copy in counsels office with his clerk or with a person having charge thereof c. Leaving a copy between 8am and 6pm at the party or counse;s residence, if known with a person of sufficient age and discretion then residing therein, if no person is found in his office, or if his office is unknown, or if he has no office. 2.Service by mail If no registry service is available in the locality, of either of the sender or addressee, service may be done by ordinary mail. 3.Substituted service Service upon domestic private juridical entity By delivery of the copy to the clerk of court with proof of failure of both personal and service by mail. Requisites of Lis Pendens (Sec. 14, Rule 13) 1.Action affects the title or the right of possession of real property; 2.Affirmative relief is claimed; 3.Notice shall contain the name of the parties and the object of the action; 4.Action in rem. General Rule: When an additional defendant is joined, summons must be served upon him. When the defendant is a corporation, partnership or association organized under the Laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, or in-house counsel. Mere manager, secretary, outside counsel, cashier, directors and agents are excluded. Requisites in Service by Publication 1.The action is Rem or Quasi in Rem (not strictly Personam) 2.The defendants identity or whereabouts are unknown and cannot be ascertained by diligent inquiry. 3.There must be leave of court. 1.When the administrator of a deceased party defendant substituted the deceased; 2.Whereupon the death of the original defendant his infant heirs are made parties; 3.In cases of substitution of the deceased under Sec. 16 of Rule 13. In these cases, the order of the service of substitution is sufficient. Modes of Service of Summons 1.Service in person on defendant (Sec. 6, Rule 14) 2.Substituted service (Sec. 7, Rule 14) 3.Service by publication (Sec. 14, Rule 14) 4.Extraterritorial service (Sec. 15, Rule 14)

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Rule 13 22

Examples of Ex-part Motions Kinds of Motion 1.Motion ex parte made without the presence or a notification of the other party because the question generally presented is not debatable. (It is also called nonlitigated motion) (Ex: Motion for extension of time to file pleadings) 2.Motion de parte or Litigated Motion made with notification to the adverse party to give an opportunity to oppose; will affect the rights of the parties. (Ex: Motion to Dismiss) 3.Motion of course is where the movant is entitled to the relief or remedy sought as a matter of discretion on the part of the court. 4.Special motion is one addressed to the discretion of the court. 1.Motion for extension of time to file pleadings 2.Motion for extension of time to file answer 3.Motion for extension of time to file a record on appeal 4.Applications for a writ of: a.Preliminary attachment b.Restraining order c.Appointment of a receiver d.Delivery of personal property

Grounds for a motion to dismiss 1. That the court has no jurisdiction over the person of the defending party; 2. That the court has no jurisdiction over the subject matter of the claim; 3. That the venue is improperly laid; 4. That the plaintiff has no legal capacity to sue; 5. That there is another action pending between the same parties for the same cause. 6. That the course of action is barred by a prior judgment or by the Statue of Limitations; 7. That the pleading asserting the claim states no cause of action; 8. That the claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished; 9. That the claim on which the action is founded is unenforceable under the provisions of the Statute of Frauds; 10. That a condition precedent for filing the claim has not been complied with.

General Rule: Every written motion is required to be heard Exceptions: 1.Urgent motions 2.Ex parte motions 3.Motions agreed upon by the parties to be heard on shorter notice or jointly submitted by the parties 4.Motions for Summary Judgment (must be served at least 10 days before its hearing.)

Civil Procedure Reviewer

Rule 13 22

Requisites of Lis Pendens (Rule 16) 1.The same parties, or at least such as represent the same interest. 2.The same rights asserted and the same relief prayed for. 3.This relief must be founded on the same facts, and the title or essential basis of the relief sought must be the same. 4.The identity in these particulars should be such that if the pending case had already been disposed of, it could be pleaded to bar as former adjudication of the same matter between the same parties. Prescription distinguished from Laches Prescription 1.Refers to facts of delay. 2.A matter of status of time. 3.A status. 4.Applies to law. 5.Has fixed time. Laches 1.Refers to effects of delay. 2.A question of inequity. 3.Not a status. 4.Based on equity. 5.Has no fixed time.

Exceptions: 1. Where the notice of dismissal so provides 2. Two-dismissal rule: Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction. (The two-dismissal rule requires that the court granted both dismissals. The second dismissal shall be considered as adjudication on merits.) Exception to the exception: When the prior dismissal is for lack of jurisdiction.

Dismissal of the complaint is based on any of these grounds: 1.The failure of the plaintiff to appear without justifiable cause on the date of the presentation of his evidence in chief of the complaint. 2.The failure of the plaintiff to prosecute his action for an unreasonable length of time. (Nolle Proseque) 3.The failure of the plaintiff to comply with the Rules of court or any order of the court. 4.Lack of jurisdiction. 5.In cases of summary procedure.

General Rule: The action or claim may be re-filed. Exceptions: 1.Res judicata (due to other pending actions) 2.Prescription 3.Extinguishment of the claim or demand 4.Unenforceability under the Statute of Frauds 5.Bar by prior judgment or by Statute of Limitations General Rule: Dismissal upon notice by the plaintiff is without prejudice. It does not constitute res judicata

The pre-trial is mandatory. The Court shall consider: 1. The possibility of an amicable settlement or of a submission to alternative modes of dispute or resolution; 2. The simplification of the issues;

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Rule 13 22

3. The necessity or desirability of amendment to the pleadings; 4. The possibility of obtaining stipulations or admissions of facts and of documents to avoid necessary proof; 5. The limitation of the number of witnesses; 6. The advisability of a preliminary reference of issues to a commissioner; 7. The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; 8. The advisability or necessity of suspending the proceedings; 9. Such other matters as may aid in the prompt disposition of the action.

defendant should not exceed the amount or be different in kind from that prayed for.

amount from that prayed for.

Intervention distinguished from Interpleader Intervention 1.An ancillary action. 2.Proper in any of the four situations mentioned in Rule 19. Interpleader 1.An Original action. 2.Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein in which in whole or in part is not disputed by the other parties to the action. 3.Defendants are being sued precisely to interplead them.

Coverage of Mediation 1.All civil cases, settlement of estates and cases covered by the Rule on Summary Procedure, except those which by law may not be compromised; 2.Cases cognizable by the Lupong Tagapamayapa under the Katarungang Pambarangay Law; 3.Civil aspect of Batas Pambansa Blg. 22 cases; 4.Civil aspect of Quasi-offense under Title 14 of the RPC; 5.Civil aspect of Estafa and Libel cases where damages are sought; 6.Simple theft under Art. 308, par. 3 to 8 of the RPC. Judgment ex Parte distinguished from Judgment by Default Judgment ex Parte 1.The judgment against the Judgment by Default 1.The award may exceed the

3.The action is against either or both the original parties to the pending suit

General Rule: After rendition of judgment, a motion to intervene is already barred, even if the judgment recognizes the right of the movant. The remedy of the movant is to file a separate action. Exceptions: 1.With respect to indispensable parties, intervention may be allowed even on appeal. 2.When the intervenor is the Republic.

Civil Procedure Reviewer

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3.Intervention may be allowed after judgment where necessary to protect some interest which cannot otherwise be protected, and for the purpose of preserving the intervenors right to appeal. Calendar of Cases: The clerk of court, under the direct supervision of the judge, shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned or postponed, and those with motions to set for hearing. (Preference shall be given to Habeas Corpus cases, Election cases, Special Civil actions and those so required by law.) Subpoena distinguished from Summons Subpoena 1.An order to appear and testify or to produce books and documents. 2.May be served to a nonparty. 3.Needs tender of kilometrage, attendance fee and reasonable cost of production fee. Summons 1.An order to answer the complaint. 2.May be served on the defendant. 3.Does not need tender of kilometrage and other fees.

The person to whom the subpoena duces tecum is directed is bound only in so far as he is required by law to produce the documents in evidence.

THE SUBPOENA MAY BE ISSUED BY: 1. The court before whom the witness is required to attend; 2. The court of the place where the deposition is to be taken; 3. The officer or body authorized by law to do so in connection with investigations conducted by said officer or body; 4. Any justice of the SC or the CA in any case or investigation pending within the Philippines. How to compute time In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statue, the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal Holiday in the place where the court sits, the time shall not run until the next working day. If a party is granted an extension of time, the extension should be counted from the last day which is a Saturday, Sunday, or Legal Holiday. (not on the next working day.)

Subpoena Signed by the Clerk of Court. While the person to whom the subpoena to testify is directed is bound absolutely and without qualification to appear in response to the subpoena.

I. Definition of Terms

Civil Procedure Reviewer

Rule 13 22

Filing is the act of presenting the pleading or other papers to the clerk of court. Service is the act of providing a party with a copy of the pleading or paper concerned. If a party has appeared by counsel. Service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court, where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite site. Lis pendens is a notice of a pendency of the action between the parties involving title to or right of possession over real property.

Dwelling house or residence refers to the place where the person named in the summons is living at the time when the service is made, eventhough he may be temporarily out of the country at the time. Office or regular place of business refer to the office or place of business of the defendant at the time of service. Motion is an application for relief other than by a pleading. Motion day except for motions requiring immediate action, all motions shall be scheduled for hearing on Friday afternoons, or if Friday is a non-working day, in the afternoon of the next working day. Omnibus motion a motion attacking a pleading, order, judgment, or proceeding shall include all objects then available, and all objections not so included shall be deemed waived. Pre-trial is a mandatory conference and personal confrontation between the parties-litigants in the presence of their respective counsel and the judge. Court annexed mediation - an enhanced pre-trial procedure that involves settling mediatable cases filed in court with the assistance of a mediator who has been accredited by the SC. Intervention is a legal proceeding by which a third person is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirements set by the Rules of Court.

Summons is the writ of process by which the defendant is notified of the action brought against him or securing his appearance in court. It is an order from the court directing the defendant to file his responsive pleading within the period provided for. Pursuant to a right to due process, it is to give notice to the defendant that an action has been commenced against him. Alias summons is issued when the first summons has not produced its effect because it is defective in form or manner of service, and when issued, supersedes the first. It is issued when the summons has returned without being served or it was lost. Return of summons is a report of the sheriff on how he was able to serve the summons. It is admissible as evidence without offer. The plaintiff is notified so that he may know when the defendant may be declared in default.

Civil Procedure Reviewer

Rule 13 22

Complaint-in-intervention if the intervenor asserts a claim against either or all of the original parties. Answer-in-intervention if the intervenor unite with the defendant in resisting a claim against the latter. Subpoena/Subpoena ad testificandum is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. Subpoena duces tecum is a process directed to a person requiring him to bring with him books, documents or other things under his control which he must testify. Viatory right the witness resides more than 100 kilometers by ordinary course of travel over land transportation from the place where he is to testify. This refers only to civil not criminal cases. Writ of Amparo a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. Writ of Habeas Data a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting, or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

Extralegal killings killings committed without due process of law (e.g. salvage, summary and arbitrary executions). Enforced disappearances arrest, detention or abduction of a person by a government officer or organized groups of private individuals acting with direct or indirect acquiescence of the government, refusal of the State to disclose the fate or whereabouts of the person concerned or refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law.