A2016 Civ Pro Midterms Reviewer PDF

LAW 125
A2016
CIVIL PROCEDURE
PROF. VICTOR ELEAZAR
Norlegen Bayona
Dianne Irish Cadorna
Diane Jane Dolot
Contributors:
Roby Cruz
Michael De Castro
Apo Espaola
Justin Ordoyo
Laurie Quiambao
Nasha Reyes
I. GENERAL PRINCIPLES
2. POWER
OF THE SC TO AMEND AND SUSPEND

PROCEDURAL RULES
A. CONCEPT OF REMEDIAL LAW

-
Remedial law is that branch of law which

prescribes the method of enforcing rights or
obtaining redress for their invasion (Bustos vs.
Lucero, 81 Phil. 640).
It is also known as Adjective Law
The constitutional power of SC to promulgate, amend or

repeal rules of practice and procedure necessarily
carries with it the power to overturn judicial precedents
on point of remedial law through the amendment of the
ROC. (Pinga v Heirs of Santiago)
B. SUBSTANTIVE LAW AS DISTINGUISHED
FROM REMEDIAL LAW

SUBSTANTIVE LAW
It creates, defines, and
regulates rights concerning
life, liberty, or property, or
the power of agencies or
instrumentalities for the
administration of public
affairs
It makes vested rights

possible.
Prospective in application
Cannot be enacted by SC
REMEDIAL LAW
Method of enforcing those
rights
and
obligations
created by substantive law
by providing a procedural
system
for
obtaining
redress for invasion of
rights and violations of
duties and by laying out
rules as to how suits are
filed, tried, and decided
upon by the courts.
No vested rights
Reasons that would warrant the suspension:

a. The existence of special or compelling
circumstances;
b. Merits of the case;
c. Cause not entirely attributable to the fault or
negligence of the party favored by the suspension
of rules
d. A lack of showing that the review sought is merely
frivolous and dilatory;
e. The other party will not be unjustly prejudiced
thereby. (Sarmiento v Zaratan)
- Other reasons
a. Where substantial and important issues await
resolution. (CIR v Mirant)
b. When transcendental matters of life, liberty or state
security are involved. (Mindanao Savings Loan Asso. v.
Vicenta Vda. De Flores)
Governs acts which took

place
SC is empowered to
promulgate
procedural
rules
c. POWER TO SUSPEND PROCEDURAL RULES
COURT
Rule on liberal construction

a. Concept
o rigid application of Rules may be relaxed
so that the ends of justice may be better
served (Cruz v CA)
o Strict compliance is the general rule,
liberal construction is the exception
(Pilapil v Heirs of Briones)
b. Purpose
o achieve disposition of every action in a
manner that is JUST, SPEEDY, and
INEXPENSIVE.
c. Limit
o not for convenience of a party (Abrenica V
Law firm of ATT); mere invocation of
substantial justice is NOT a magical
incantation that will automatically compel
the Court to suspend procedural rules.
(Cu-unjieng v CA)
d. When applied:
o clear showing of prima facie merit of
petition (Munoz v People)
o where rigid application will result in
manifest failure or miscarriage of justice
o where interest of substantial justice will be
served
Source of rule-making power: CONSTITUTION

Sec. 5(5), Art. VIII, of the 1987 Constitution provides that the
SC shall have the power to:
a. promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice,
and procedure in all courts;
The Court has the sole prerogative* to amend, repeal, or

even establish new rules for a more simplified and
inexpensive process, and the speedy disposition of cases
[Neypes v CA]
*this power was shared with Congress before 1987 Constitution
ON THE RULE-MAKING POWER OF
Limits provided by the Constitution:

Rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases
b. Rules shall be uniform for courts of the same grade
c. Rules shall not diminish, increase, or modify
substantive rights
a.
a.
Bayona/Cadorna/Dolot
b.
When compelling reasons so warrant or when the

purpose of justice requires it, the SC may amend and
suspend procedural rules. It is discretionary upon
courts. (CIR v Mirant Pagbilao)
C. RULE-MAKING POWER OF THE SUPREME
1. LIMITATIONS
SC
Power to amend and suspend includes power to

reverse itself
c.
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o
o
where the resolution of the motion is

addressed solely to the sound and
judicious discretion of court
where injustice to the adverse party is not
commensurate to degree of his
thoughtlessness in not complying with the
procedure prescribed (Vette Industrial
Sales v Cheng)
b. ELEMENTS OF JURISDICTION
OVER THE
SUBJECT
MATTER
conferred by law
(BP 129)
e. RETROACTIVITY OF PROCEDURAL RULES
Exception: may be made applicable to actions pending

and undetermined at time of their passage [not
violative because there are no vested rights in ruled of
procedure]
Exception to the exception: Procedural rules do not
apply to pending actions
a. statute itself or by necessary implication provides
that pending actions are excepted from its
operation
b. if applying the rule to pending proceedings would
impair vested rights
c. when to do so would not be feasible or would work
injustice
d. if doing so would intricate problems of due process
or impair the independence of the courts (Tan v
CA)
NOT waivable,
except in cases
of estoppel to
question or raise
jurisdiction
(Tijam vs.
Sibonghanoy)*
It is determined
upon the
allegations made
in the complaint.
JURISDICTION
The authority to hear and
determine a case
A matter of substantive law
VENUE
The place where the case is
to be heard or tried
A matter of procedural law
Establishes
a
relation
between the court and the
subject matter
Establishes
a
relation
between parties: plaintiff
and
defendant,
or
petitioner and respondent
May be conferred by the
act or agreement of the
parties
THE EXERCISE OF
a.
b.
seizure of the
thing under
legal process
whereby it is
brought into
actual custody
of law; OR
institution of a
legal
proceeding
wherein the
power of the
court over the
thing is
recognized
and made
effective
May be waived
of laches or stale demands in Tijam is the exception to the

principle of estoppel as a defense to a jurisdictional error. In Calimlim v.
Ramirez, the SC observed that Tijam was developing into a general rule
rather than as an exception. Thus, in Calimlim, the SC refused to apply
Tijam.
c. CLASSES OF JURISDICTION
GENERAL JURISDICTION
power to adjudicate all
controversies except those
expressly withheld from the
plenary powers of the court
EQUITY
ORIGINAL
power of the court to take
judicial cognizance of a
case instituted for judicial
action for the first time
under conditions provided
by law
Concept: power of court to resolve issues presented in a

case in accordance with the natural rules of fairness and
justice in the ABSENCE OF A CLEAR, POSITIVE LAW
governing such issues.
Equity seeks to reach and to do complete justice where the
courts of law are incompetent to do so because of the
inflexibility of the rules and the lack of power to adapt their
judgments to the special circumstance of cases. Equity
regards the spirit of the law and not its letter, the intent and
not the form, the substance rather than the circumstance. (Air
Manila v CIR)
Plaintiff: filing of the

initiatory pleading,
like a complaint
*doctrine
f. BASIC PRINCIPLES IN JURISDICTION
a. PRINCIPLE OF
JURISDICTION
OVER THE RES
Defendant:
a. proper service of
summons, OR
b. voluntary
appearance in
court and his
submission to
the authority of
the court
General Rule: prospective; no retroactive effect
Fixed by law and cannot be

conferred by the parties
OVER THE PARTIES
SPECIAL JURISDICTION
restricts
the
courts
jurisdiction
only
to
particular
cases
and
subject to such limitations
as may be provided by the
governing law
APPELLATE
authority of a court higher

in rank to re-examine the
final order or judgment of a
lower court which tried the
case now elevated for
judicial review
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c)
EXCLUSIVE
power to adjudicate a case
or proceeding to the
exclusion of all other courts
at that stage.
Where the demand exclusive of interest,

damages of whatever kind, attorneys
fees, litigation expenses, and cost, or the
value of the personal property or
controversy exceeds P300,000 outside
MM or exceeds P400,000 in MM
2. Exercise appellate jurisdiction
CONCURRENT/CONFLUENT/C
OORDINATE
power
conferred
upon
different courts, whether of
the same or different ranks,
to take cognizance at the
same stage of the same case
in the same or different
judicial territories.*
C.) THIRD LEVEL (CA, Sandiganbayan)

1. CA is an appellate court
a) Reviewing cases appealed to it from the
RTC on questions of fact or mixed
questions of fact and law
b) Decisions of the RTC in the exercise of its
original jurisdiction
a. As a matter of right
b. As a matter of discretion
c) Occasionally, CA may act as a trial court,
as in actions praying for the annulment of
final and executory judgments of RTCs on
the ground of extrinsic fraud subsequently
discovered, against which no other
remedies lies
2. Sandiganbayan has jurisdiction:
*concurrent jurisdiction is subject to hierarchy of courts (e.g. SC,

CA and RTC has concurrent jurisdiction to writ of mandamus but
one may not go directly to SC unless for special and important
reasons)
D. NATURE OF PHILIPPINE COURTS

1. MEANING OF A COURT
- an organ of government belonging to the judicial
department the function of which is the application of the
laws to controversies brought before it as well as public
administration of justice (Blacks, 5th Edition, 356)
2. COURT AS DISTINGUISHED FROM A JUDGE

COURT
Tribunal officially
assembled under authority
of law
JUDGE
Officer of tribunal
Being in imagination like a

corporation
An office
Physical person
a)
b) It also has exclusive appellate jurisdiction

over final judgments, resolutions, or
orders of RTCs whether in the exercise of
their own original or appellate jurisdiction
over criminal and civil cases committed by
public officers or employees including
those in GOCCs in relation to their office
Public officer
Jurisdiction does not attach to the judge but to the court.

Thus, continuity of a court and efficacy of proceedings are
not affected by death or resignation of the judge presiding
over it. (ABC Davao v CA)
D.) FOURTH LEVEL SC
3. CLASSIFICATION OF PHILIPPINE COURTS
4. COURTS OF ORIGINAL
JURISDICTION
A.) FIRST LEVEL (MTCs, MeTCs, MCTCs) which try

and decide:
1.
MeTC, MCTC,
MTC
RTC
Criminal actions involving:

a) Violations of city or municipal ordinances committed
within their respective territorial jurisdiction; and
b) Offenses punishable with imprisonment not
exceeding six (6) years irrespective of the amount of
fine and regardless of other imposable accessory or
other penalties, and
2. Civil actions including:

a) Ejectment Cases (Feud)
b) Recovery of personal property with a value
not exceeding P300,000 outside Metro
Manila (MM) or not exceeding P400,000
in MM
CA
B.) SECOND LEVEL (RTCs, Family Courts)

1. Courts of general jurisdiction
a) Actions incapable of pecuniary estimation
b) Actions involving title to or possession of
real property where the assessed value of
the property exceeds P20,000 outside
MM or exceeds P50,000 in MM
SC
Over all criminal cases involving:

a.
Graft and corrupt practices act
b. Such other offenses committed by public
officers and employees including those in
GOCCs in relation to their office
AND
ORIGINAL
see jurisdiction
APPELLATE
APPELLATE
see jurisdiction
issuance of writs of
cases from MTC

cases from RTC
and specified
quasi-judicial
agencies
all cases
certiorari,
mandamus, quo
warranto, habeas
corpus, and
prohibition; actions
for annulment of
judgments of RTCs
cases affecting
ambassadors,
public ministers
and consuls, and in
cases involving
petitions for
certiorari,
prohibition and
mandamus
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*SC en banc not an

appellate court for
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5. COURTS OF GENERAL
JURISDICTION* [SUPRA]
AND
SPECIAL
the
latter
(Philippine
Sinter
Cagayan
Electric)
6. CONSTITUTIONAL AND STATUTORY COURTS

CONSTITUTIONAL
created
by
a
direct
Constitutional provision i.e
Supreme Court
STATUTORY
Created by a law other than
the Constitution* i.e all
courts except SC
*Sandiganbayan is not a Constitutional court, created by PD 1486
7. COURTS OF LAW AND EQUITY

-
Philippine courts are both courts of law and equity

COURT OF LAW
COURT OF EQUITY
decides a case according adjudicates according to
to the existing laws
the common precepts of
what is right and just
without inquiring into the
terms of the statutes
8. PRINCIPLE OF JUDICIAL HIERARCHY

Concept: ordained sequence of recourse to courts vested
with concurrent jurisdiction, beginning from the lowest, on
to the next highest and ultimately to the highest. This
hierarchy is determinative of the venue of appeals, and is
likewise determinative of the proper forum for petitions for
extraordinary writs. This is an established policy necessary
to avoid inordinate demands upon the Courts time and
attention which are better devoted to those matters within
its exclusive jurisdiction, and to preclude the further
clogging of the Courts docket (Sec. 9[1], BP 129; Sec. 5[1],
Art. VIII, Constitution of the Philippines)
Rationale:
1. it would be an imposition upon the limited time
of the Court
2. it would inevitably result in a delay in
adjudication of case
Exception: if warranted by nature and importance of issues
raised
1. in the interest of speedy justice, and
2. to avoid future litigations
9. DOCTRINE OF NON-INTERFERENCE
DOCTRINE OF JUDICIAL STABILITY
OR
Concept: courts of equal and coordinate jurisdiction cannot

interfere with each others orders (Lapu-lapu Development
v Group Management Corp). This bars a court from
reviewing or interfering with the judgment of a co-equal
court over which it has no appellate jurisdiction (Villamor v
Salas).
10. DOCTRINE OF
ASSOCIATIONS
NON-INTERFERENCE
IN
Concept: same as above; when law provides for an appeal

from decision of an admin body to SC or CA, it means that
such body is co-equal with RTC thus beyond the control of
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II. JURISDICTION
Governed
by
A. JURISDICTION OVER PARTIES

1. HOW
JURISDICTION
ACQUIRED
OVER
PLAINTIFF
IS
2. HOW
JURISDICTION OVER THE DEFENDANT IS

ACQUIRED
See previous table.

An erroneous judgment is not void and treated as valid
and enforceable. (Mercado v CA)
An error of jurisdiction leads to an absolutely void
decision.
THERE ARE 3 WAYS:

(1) SERVICE OF SUMMONS
(2) OTHER COERCIVE PROCESS
(3) VOLUNTARY SUBMISSION TO THE AUTHORITY OF THE CT
Note: Within the interval between the filing of the

complaint up to the service of summons, acts of the
plaintiff and the court are unquestionably valid. E.g.
appoint guardian ad litem, plaintiff as pauper litigant,
amendment as a matter of right, authorization of the
court of service of summons by publication, dismissal
of the action by plaintiff by mere notice.
4. HOW JURISDICTION
DETERMINED
What determines jurisdiction:

proven facts alleged facts
Cf. Defendant in a criminal case
5. DOCTRINE OF PRIMARY JURISDICTION
(1) Service of summons

(2) Arrest
(3) Voluntary appearance
If the determination of a case requires the expertise,

specialized skills and knowledge of the proper
administrative body because technical matters or
intricate questions of fact are involved, THEREFORE
relief must first be obtained from the administrative
agency before the court can provide a remedy even if
the Court has jurisdiction.
B. JURISDICTION OVER SUBJECT MATTER

1. MEANING OF JURISDICTION
SUBJECT MATTER
OVER THE
Concept: It is the power and authority of a court to

hear, try and decide a case. Jurisdiction over the
subject matter is conferred only by the Constitution or
by law. It cannot be fixed by the will of the parties nor
by their act or omission or by the acquiescence of the
Court.
Rule, parsed:
IF (1) Claim is originally cognizable by the court
+
(2) Enforcement of the claim requires the
resolution of issues within the special competence
of an admin. body
Exception: Estoppel by laches. (Tijam v Sibonghanoy)
ASPECT
Authority
Effect of
error
Judgment
absolutely
a.
VERSUS THE
EXERCISE
= Judicial process is suspended AND issues are

referred to the admin. body
OF
Cf. Doctrine of Exhaustion of Administrative Remedies
JURISDICTION
Pertains
to
If there is
an error
IS CONFERRED AND
Jurisdiction is conferred by law or the Constitution.

Further, jurisdiction is determined by the allegations in
the complaint.
3. COMPARE WITH CRIMINAL PROCEDURE
2. JURISDICTION
JURISDICTION
Rules of Court,
SC
Orders;
Except: if the law
itself
provides
therefor
3. ERROR OF JURISDICTION AS DISTINGUISHED

FROM ERROR OF JUDGMENT
By filing the complaint/petition. (Herrera)
certiorari
Substantive law
There
is
jurisdiction
no
void;
EXERCISE OF
JURISDICTION
Decision
rendered
The decision is
erroneous,
but
made
with
jurisdiction
Correctible
by
appeal
ASPECT
b.
Process
PRIMARY
JURISDICTION
Court 1st, then AA
Effect
Suspended
c.
EXHAUSTION OF
REMEDIES
AA 1st before Ct;
Plaintiff
must
pursue
admin
proceeding to its
logical conclusion
Dismissed
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III. Civil Procedure

Cf. Over the Subject Matter: conferred by law.
6. DOCTRINE
JURISDICTION
OF
ADHERENCE
D. JURISDICTION OVER THE RES
OF
How acquired: Property must be within the territorial

dominion of a Court.
General Rule: Jurisdiction, once attached, cannot be

ousted.
E. JURISDICTION OF COURTS
Except:
a) Statute expressly prohibits continued exercise
of jurisdiction.
b) When a subsequent law provides a prohibition
for the continued exercise of jurisdiction
[Rilloraza vs. Arciaga].
c) Where the law penalizing an act which is
punishable is repealed by a subsequent law.
Why? State loses the power to prosecute when
the law is repealed, hence, the court has no
more power to decide [People vs. Pastor,].
d) When accused is deprived of his constitutional
right such as where the court fails to provide
counsel for the accused who is unable to
obtain one and does not intelligently waive his
constitutional right [Chavez vs. CA]
e) When the proceedings in the court acquiring
jurisdiction is terminated, abandoned or
declared void [Seven vs. Pichay].
f) When the statute expressly provides, or is
construed to the effect that it intended to
operate as to actions pending before its
enactment [Bengzon vs. Inciong].
g) Once appeal has been perfected [Alma vs.
Abbas].
h) When the law is curative [Garcia vs. Martinez]
7. OBJECTIONS TO JURISDICTION
SUBJECT MATTER
1. SUPREME COURT
2. COURT OF APPEALS
(a) Original jurisdiction to issue writs of

CPMQHA
(certiorari,
prohibition,
mandamus, quo warranto including
habeas corpus and auxiliary writs)
(b) Exclusive and original jurisdiction over
actions for annulment of judgments of
RTC
(c) Exclusive appellate jurisdiction over all
final judgments, decisions, resolutions,
orders, awards of RTC and admin
agencies
3. COURT OF TAX APPEALS
(a) Original and Appellate jurisdiction over Civil
and criminal tax cases involving
a. National Internal Revenue Code
b. Tariff and Customs Code
c. Local Govt Assessment Code
(b) Appellate Jurisdiction wrt
a. BIR decisions, inaction
b. RTC decisions involving local taxe
cases
c. Decisions of the Commissioner of
Customs
4. SANDIGANBAYAN
OVER THE
a.
Original Jurisdiction, 2 Elements:

i. Subject matter: RA 3019, RA
1379, RPC Chapter on Public
Officers
ii. Position: SG 27 or higher
b. Appellate Jurisdiction if RTC has original
jurisdiction
General Rule: Objections to jurisdiction over the

SM may be raised at any point in the proceedings
even for the first time on appeal.
Reason: If the court did not have juris. over SM, the
decision is absolutely void and may be challenged
any time.
8. EFFECT OF ESTOPPEL
JURISDICTION
ON
OBJECTIONS
5. REGIONAL TRIAL COURTS

a.
All civil actions in which the subject of the

litigation is incapable of pecuniary
estimation
b. All civil actions involving title to or
possession of real property
TO
i. Assessed value > P20k outside MM

ii. Assessed value > P50k w/in MM
iii. Except: Forcible entry, Unlawful
detainer
Except: Estoppel by laches. (Tijam v Sibonghanoy)
c.
C. JURISDICTION OVER THE ISSUES
i.
ii.
Over the issue: determined by the allegations in the

pleading.
All actions in admirality and maritime

jurisdiction
Demand or claim > P300k outside MM
Demand or claim > P400k w/in MM
d. All actions involving

i. Contract of marriage
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e.
f.
ii. Marital relations

All cases not within the exclusive
jurisdiction of any Court, tribunal, person
or body
All civil actions and special proceedings
falling within the exclusive original
jurisdiction of
c.
Exclusive and original jurisdiction in all

civil actions which involve title to or
possession of real property or any interest
therein
i. Assessed value P20k outside
ii. Assessed value P50k MM
iii. Note: Exclusive of damages,
interest, etc.
iv. Note: If not declared for taxation
purposes, then the assessed
value of the adjacent lots may be
considered
d. The Supreme Court may assign the ff
cases to the MTCs
i. Cadastral
ii. Land registration cases
iii. Note: limited to original cases
i. Juvenile and Domestic Relations

Courts
ii. Courts of Agrarian Relations
g.
All matters of probate

i. Gross value of estate > P300k
outside
ii. Gross value of estate > P400k MM
h. All other cases where

i. Demand or value > P300k outside
ii. Demand or value > P400k MM
iii. Note: Exclusive of interest, damages,
attorneys fees, litigation expenses,
costs
8. SHARIAH COURTS
Article 137 of PD 1083 states that the Sharia
courts are created as part of the judicial system
and are courts of limited jurisdiction.
6. FAMILY COURTS
1. Petitions for guardianship, custody of children,
habeas corpus in relation to the latter;
2. Petitions for adoption of children and the
revocation thereof;
3. Complaints for annulment of marriage,
declaration of nullity of marriage and those
relating to marital status and property
relations of husband and wife or those living
together under different status and
agreements, and petitions for dissolution of
conjugal partnership of gains;
4. Petitions for support and/or acknowledgment;
5. Summary judicial proceedings brought under
the provisions of Executive Order No. 209,
otherwise known as the Family Code of the
Philippines;
6. Petitions for declaration of status of children
as abandoned, dependent of neglected
children, petitions for voluntary or involuntary
commitment of children; the suspension,
termination, or restoration of parental
authority and other cases cognizable under
Presidential Decree No. 603, Executive Order
No. 56, (Series of 1986), and other related
laws;
7. Petitions for the constitution of the family
home;
F. JURISDICTION
OVER SMALL CLAIMS,

CASES COVERED BY THE RULES ON
SUMMARY PROCEDURE AND BARANGAY
CONCILIATION
1. SMALL CLAIMS COURT

Scope:
a. Action before MTC, MCTC, MTCC
b. money claim = does not exceed P100, 000.00
exclusive of interest and costs
Applicability:
a. purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment
or reimbursement of sum of money, and
b. the civil aspect of criminal actions, either filed
before the institution of the criminal action, or
reserved upon the filing of the criminal action
in court, pursuant to Rule 111, RROC.
These claims or demands may be:
a. For money owed under any of the following:
1. Contract of Lease;
2. Contract of Sale;
3. Contract of Loan;
4. Contract of Mortgage
5. Contract of Services;
b. For damages arising from any of the following:
1. Fault or negligence;
2. Quasi-contract; or
3. Contract;
c. The enforcement of a barangay amicable
settlement or an arbitration award involving a
7. METROPOLITAN TRIAL COURTS/MUNICIPAL

TRIAL COURTS
a.
Exclusive and original jurisdiction over civil

actions and probate proceedings
i. Value P300k outside
ii. Value P400k MM
iii. Note: If there are several claims,
apply totality rule (just add em
all)
b. Exclusive and original jurisdiction over FE
+ UD (ejectment cases)
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9. Any class of disputes which the President may determine
in the interest of justice or upon the recommendation of the
Secretary of Justice;
10. Where the dispute arises from the Comprehensive
Agrarian Reform Law (CARL)
11. Labor disputes or controversies arising from employeremployee relations
12. Actions to annul judgment upon a compromise which
may be filed directly in court
money claim covered by this Rule pursuant to

Sec. 417.
1. RULES ON SUMMARY
PROCEDURE
a.
All cases of forcible entry and

unlawful detainer irrespective of the
amount of damages or unpaid rentals
sought to be recovered. Where
attorneys fees are awarded, the
same shall not exceed P20,000.00.
b. All other cases, except probate
proceedings, where the total amount
of the plaintiffs claim does not
exceed P100,000.00 or P200,000.00
in MeTC, exclusive of interest and
costs.
G. TOTALITY RULE
Where there are several claims or causes of actions
between the same or different parties, embodied in the
same complaint, the amount of the demand shall be the
totality of the claims in all causes of action, irrespective of
whether the causes of action arose out of the same or
different transaction. (Sec. 33 (1), B.P. No. 129, as
amended)
2. BARANGAY CONCILIATION [Adm.
Circular No. 14-93]
NOTE: We will follow the totality rule in BP 129 because it is

elementary in statutory construction that in case of conflict,
substantive law prevails over procedural laws.
General Rule: Barangay conciliation is a pre-condition

for all disputes before filing a complaint in court or any
govt offices
Exceptions:
1. Where one party is the government, or any subdivision or
instrumentality thereof;
2. Where one party is a public officer or employee and the
dispute relates to the performance of his official functions;
3. Where the dispute involves real properties located in
different cities and municipalities, unless the parties thereto
agree to submit their difference to amicable settlement by an
appropriate Lupon;
4. Any complaint by or against corporations, partnerships or
juridical entities, since only individuals shall be parties to
Barangay conciliation proceedings either as complainants or
respondents [Sec. 1, Rule VI, Katarungang Pambarangay
Rules];
5. Disputes involving parties who actually reside in barangays
of different cities or municipalities, except where such
barangay units adjoin each other and the parties thereto
agree to submit their differences to amicable settlement by
an appropriate Lupon;
6. Offenses for which the law prescribes a maximum penalty
of imprisonment exceeding one [1] year or a fine of over five
thousand pesos (P5,000.00);
7. Offenses where there is no private offended party;
8. Disputes where urgent legal action is necessary to prevent
injustice from being committed or further continued,
specifically the following:
a. Criminal cases where accused is under police
custody or detention
3. Petitions for habeas corpus by a person illegally
deprived of his rightful custody over another or a
person illegally deprived of or on acting in his
behalf;
4. Actions coupled with provisional remedies such as
preliminary injunction, attachment, delivery of
personal property and support during the pendency
of the action; and
5. Actions which may be barred by the Statute of
Limitations.
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A. ACTIONS
Actions refer to the legal and formal demand of ones
right from another person made and insisted upon in a
court of justice. The determinative operative act which
converts a claim into an action or suit: filing with a court of
justice.
Filing Fees
MANCHESTER RULE
All complaints, petitions,
answers and other similar
pleadings should specify
the amount of damages
being prayed for not only in
the body of the pleading
but also in the prayer, and
said damages shall be
considered
in
the
assessment of the filing
fees. Any pleading that fails
to
comply
with
this
requirement shall not be
accepted nor admitted, or
shall
otherwise
be
expunged from the record.
Can the Courts grant to foundations who work

for indigent and underprivileged people, the
same option granted to indigent people?
No. Only a natural party litigant may be regarded as an
indigent litigant. [Query of Mr. Roger C. Prioreschi re:
exemption from legal and filing fees of the Good
Shepherd Foundation Inc., A.M. No. 09-6-9-SC, August
19, 2009 Resolution]
SUN INSURANCE CASE

Rule: It is not simply the
filing of the complaint or
appropriate
initiatory
pleading but also the
payment of the prescribed
docket fee that vests a trial
court with jurisdiction over
the subject matter or
nature of the action.
Relaxation of rule: Initiatory
pleading not accompanied
by payment of the docket
fee: the court may allow
payment of the fee within a
reasonable time but in no
case beyond the applicable
prescriptive
or
reglementary
period.
[Applicable to permissive
counterclaims, third party
claims
and
similar
pleadings]
Can you file a pay docket fees by registered

mail?
Yes. [Sec. 3 of Rule 13]
Commencement of Action
When is an action commenced?
A civil action is commenced by the filing of the original
complaint
Can you file a complaint or petition by

registered mail?
An action can be commenced by filing the complaint by
registered mail. In which case, it is the date of mailing
that is considered as the date of filing and not the date of
the receipt thereof by the clerk of court. [Sec. 3 of Rule
13]
Summary of rules on docket fees

a. Complaint must be accompanied by the payment of
the requisite docket and filing fees.
b. If the complaint is filed but the fees are not paid at
the time of filing, the court acquires jurisdiction upon
full payment of the fees within a reasonable time as
the court may grant, barring prescription.
c. Real actions: docket fees = based on value of the
property + amount of damages claimed, if any.
Basis of value of property [Rule 141, Sec. 7 (a),]:
1) fair market value of the real property in
litigation stated in the current tax
declaration, OR current zonal valuation of the
BIR, whichever is higher, or if there is none,
2) stated value of the property in litigation OR
the value of the personal property in
litigation as alleged by the claimant.
d. Where the fees prescribed for the real action have
been paid but the fees of certain related damages
are not, the court, although having jurisdiction over
the real action, may not have acquired jurisdiction
over the accompanying claim for damages.
e. Accordingly, the court may expunge those claims for
damages, or allow, on motion, a reasonable time for
amendment of the complaint so as to allege the
f.
precise amount of damages and accept payment of

the requisite legal fees.
If there are unspecified claims, the determination of
which may arise after the filing of the complaint or
similar pleading, the additional filing fee thereon shall
constitute a lien on the judgment award. The same
rule also applies to third-party claims and other
similar pleadings. [Ballatan v. Court of Appeals]
1. MEANING OF ORDINARY CIVIL ACTIONS

Sec. 3, Rule 1 (General Provisions)
Sec.3 Cases governed. These Rules shall govern the
procedure to be observed in actions, civil or criminal and
special proceedings.
A. A civil action is one by which a party sues another
for the enforcement or protection of a right, or
the prevention or redress of a wrong,
A civil action may either be ordinary or special.
Both are governed by the rules for ordinary civil
actions, subject to the specific rules prescribed
for a special civil action.
B. A criminal action is one by which the State
prosecutes a person for an act or omission
punishable by law.
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filed in the court
where
the
property or any
part thereof is
situated
filed in the court rules on venue

where the plaintiff or of real actions
any
of
the shall govern
defendants reside at
the option of the
plaintiff
Not every action involving a real property is a real action,
because the realty may only be incidental to the subject
matter of the suit. What is important is that the matter in
litigation must involve any of the ff. issues: title to,
ownership, possession, partition, foreclosure of mortgage,
or any interest in real property.
C. A special proceeding is a remedy by which a

party seeks to establish a status, a right, or a
particular fact.
2. MEANING OF SPECIAL CIVIL ACTIONS

It is also civil action and governed by the rules for ordinary
action but because of its peculiar nature, it is subject to the
specific rules prescribed for them, particularly Rule 62 to
Rule 71, depending on the special civil action involved.
-
The ff. are the special civil actions in ROC:

a. Interpleader
b. Declaratory relief and similar remedies
c. Review of judgments and final orders or resolutions
of the COMELEC and OCA
d. Certiorari, prohibition, and mandamus
e. Quo warranto
f. Expropriation
g. Foreclosure of real estate mortgage
h. Partition
i. Forcible entry and unlawful detainer
j. Contempt
Key: true nature of the action.

Examples of Real Actions:
BASIC: UD, FE, accion publiciana, accion reinvindicatoria,
quieting of title, remove a cloud.
CONTENTIOUS:
3. MEANING OF CRIMINAL ACTIONS [SEE

SEC.3, RULE 1]
a.
b.
4. CIVIL
ACTIONS
VERSUS
SPECIAL
PROCEEDINGS [SEE SEC.3, RULE 1]
-
The ff. are the special proceedings in ROC:

a. Settlement of estate of deceased persons
b. Escheat
c. Guardianship and custody of children
d. Trustees
e. Adoption
f. Rescission and revocation of adoption
g. Hospitalization of insane persons
h. Habeas corpus
i. Change of name
j. Voluntary dissolution of corporations
k. Judicial approval of voluntary recognition of minor
natural children
l. Constitution of family home
m. Declaration of absence of death
Cancellation or correction of entries in the civil
registry
c.
Examples of Personal Actions:

BASIC: recovery of personal property, enforcement of a
contract, recovery of damages
CONTENTIOUS:
a.
b.
c.
d.
5. PERSONAL ACTIONS AND REAL ACTIONS

-
Significance of the distinction: VENUE
REAL ACTION
subject is the
ownership
or
possession
of
real property
founded
privity of
estate
on
real
PERSONAL ACTION
personal property is
sought
to
be
recovered or where
damages for breach
of
contract
are
sought; basically, all
other actions which
are not real
founded on privity of
contract
action to recover possession of real property +

damages because possession is involved, and
damages is merely incidental
involving a fictitious sale of a fishpond there being
no contract between the parties, the action cannot
be an action for annulment of sale, but one for
recovery of a fishpond
action for the recovery of possession of leased
premises and for the payment of accrued rentals
e.
MIXED ACTION
both real and
personal
properties are
involved
specific performance with damages is a personal

action as long as it does not involve a claim of or
recovery of ownership or of title to real property
action for damages to real property
action to annul a contract of loan and its accessory
real estate mortgage
action that seeks to annul the cancellation of the
award over a house and lot because it does not
involve an issue of ownership/ possession, but the
prayer is to compel the recognition of the validity of
a previous award
action to compel the mortgagee to accept payment
of the mortgage debt and to release the mortgage
6. LOCAL AND TRANSITORY ACTIONS

[SEC. 4, RULE 4]
LOCAL
must be brought in a
particular place where the
subject property or a
portion thereof is located
unless
there
is
an
agreement to the contrary
[i.e real actions]
founded
on
privity of real
estate
and
contract
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TRANSITORY
dependent on the place
where the party resides
regardless of where the
subject cause of action
arose [i.e personal actions]
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7. ACTIONS IN REM, IN PERSONAM AND QUASI
IN REM
-
Significance of the distinction: WON JURISDICTION

OVER THE PERSON OF THE DEFENDANT IS
REQUIRED and consequently to determine the type
of summons to be employed
IN REM
directed against
the thing itself
IN PERSONAM
directed
against
the
particular
person
QUASI IN REM
directed against
particular
persons
jurisdiction over
the person of
the defendant is
not required
jurisdiction over the

person
of
the
defendant
is
required
a proceeding to
determine the
state
or
condition of a
thing
an action to impose
a responsibility or
liability upon a
person directly
jurisdiction over
the person of
the defendant
is not required
as
long
as
jurisdiction over
the
res
is
acquired
a proceeding to
subject
the
interest of a
named
defendant over
a
particular
property to an
obligation
or
lien burdening it
judgment
is
binding
upon
particular
persons
judgment
is
binding on the
whole world
a) Ultimate Objective Test If the relief demanded is

one which may not be granted under the law, it
does not characterize or determine the nature of
the action. The relief to which the plaintiff is
entitled based on the facts alleged by him in his
complaint although it is not the relief demanded is
what determines the nature of the action. Thus, a
prayer for annulment or rescission of the sale does
not operate to effect the fundamental and prime
objective and nature of the action, which is to
recover real property and is thus a real action. The
annulment of the sale is only secondary.
b) Incidental Test If it is primarily for recovery of a
sum of money, it is capable of pecuniary
estimation. Where the basic issue is something
other than the right to recover a sum of money or
is purely incidental to or as a consequence of the
principle relief sought like specific performance,
action for support or for annulment of contract, it is
not capable of pecuniary estimation.
c)
judgment is binding
only
upon
the
parties impleaded
or their successors
in interest
A real action may at the same time be an action in
personam, and NOT NECESSARILY in rem.
Key: binding effect
Mere Consequence Test An action to compel

defendant to accept the goods and pay damages,
rescission of contract and reimbursement of
contract price, and action for specific performance
of stipulation in a lease contract such as to
maintain the lessee in peaceful possession of the
premises were held to be incapable of pecuniary
estimation as the amounts to be collected are but
a consequence of specific performance which fall
under the jurisdiction of the RTC regardless of
amount sought to be recovered.
B. CAUSE OF ACTION
Examples of actions In Rem

BASIC: land registration, probate of a will
1. MEANING OF CAUSE OF ACTION
CONTENTIOUS:
a. nullity of marriage (note that it is a personal action, but still in
rem)
A cause of action is the act or omission by which a

party violates a right of another.
Examples of actions In Personam

BASIC: action for a sum of money, damages, injunction,
specific performance
CONTENTIOUS:
a. action for declaration of nullity of title and recovery of
ownership of real property (note that it is a real action)
b. auction sale of land for the collection of delinquent taxes
c. action for reconveyance
Requisites of a right of action:

1. the existence of a legal right of the
Plaintiff
2. a correlative obligation of the defendant to
respect plaintiffs right; and,
3. an act or omission of the defendant in
violation of the plaintiffs legal right
2. RIGHT OF ACTION VERSUS CAUSE OF

ACTION
Examples of actions Quasi In Rem

a. action for partition
b. action for accounting
c. attachment
d. foreclosure of mortgage
Tests to determine the nature of action: WON

capable or incapable of pecuniary estimation
[question of jurisdiction]
An action is the suit filed in court whereas

cause of action is the basis of the action filed.
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Elements of a Right of Action:
Note: It has been held that the court cannot consider other
matters aliunde (outside the pleading). But Riano says that
it is NOT a hard and fast rule, in some cases, the court
considered the documents attached to the complaint to
truly determine the sufficiency of cause of action (Agrarian
Reform v. Nicolas). The reason is that such annexes are
considered parts of the complaint (Sea-Land Service, Inc. v.
CA).
a) The existence of a cause of action defined as the

act or omission by which a party violates a right of
another
b) The performance of all conditions precedent to the
bringing of the action
c) The right to bring and maintain the action must be
in the person instituting it
Conditions precedent:
a) exhaustion of administrative remedies
b) arbitration as a condition precedent for court
action
Construction Industry Arbitration Commission
(CIAC) recourse may be availed of whenever
the contract contains a clause for the
submission of a future controversy to
arbitration
Rep. Act No. 9285 or Alternative Dispute
Resolution Act of 2004
Barangay Conciliation (Katarungang
Pambarangay)
5. SPLITTING A SINGLE CAUSE OF ACTION AND

ITS EFFECTS
Concept: the filing of one or a judgment upon the merits in
any one is available as a ground for the dismissal of the
others
Filing of one [Rule 16, Section 1 (e)] that there is
another action pending between the same parties for
the same cause
Judgment upon the merits [Rule 16, Section 1 (f)]
that the cause of action is barred by a prior judgment
-
Article 151, FC If it is shown that no earnest efforts were

in fact made to settle the controversy among members of
the same family, the case must be dismissed.
3. FAILURE TO STATE A CAUSE OF ACTION
Definition
Basis
STATES NO CAUSE
OF ACTIOIN
complaint fails to
allege the cause of
action, or that not
all elements were
indicated
Complaint
Motion to Dismiss:
before a responsive
pleading is filed
When raised
LACK OF CAUSE OF
ACTION
may be ruled after
the
judge
has
determined
the
truth and falsity of
the allegations and
has
found
the
evidence wanting
evidentiary matters
Usually, Demurrer to
evidence: after the
plaintiff rested his
case
BUT in Dabuco v.
CA, SC held that it
may
be
raised
anytime
4. TEST OF SUFFICIENCY OF A CAUSE OF

ACTION
3 alternative tests:
a. same evidence test
b. same defenses test
c. cause of action in the 2nd case existed at the time
of the filing of the 1st complaint
Example #1: car collision violates both personal right (to be
safe in the person of the car owner) and property right (over
the car). Filing an action to recover damages to his person
and later for damages to his car would be splitting a single
cause of action. IF HOWEVER, a passenger in the same car
was also injured, said passenger has a cause of action
separate and distinct from those of the car owner. He may
sue separately.
Example #2: A bank cannot file a civil action against the
debtor for the collection of the debt and then subsequently
file an action to foreclose the mortgage = splitting a single
cause of action.
Rules in actions ex-delicto:
One tort = one cause of action [regardless of how many
damages to one person]
One delict violating rights of different persons = several
causes arise on behalf of such persons
Two culpable transgressions on the property rights of
another i.e. 1) ruination of the agricultural fertility or
Test of Sufficiency of CoA

WON admitting the facts alleged, the court could render a
valid verdict in accordance with the prayer of the
complaint
A party cannot split a single cause of action into

parts and sue on each part separately.
A single act may sometimes violate several rights
of a person. Nevertheless, the plaintiff has only
one cause of action regardless of the number of
rights violated.
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utility of the soil of the property and 2) unauthorized

use of said property as a dumpsite or depot = liable to
pay damages for both the reasonable value of the use
of the land and the occupation of the premises
Separate tortuous acts resulting in different injuries =
separate causes of action
One injury from several wrongful acts = One cause of
action
When a party sues 2 or more defendants, it is

necessary for the cause of action to arise out of
the same transaction or series of transactions and
that there should be a question of law or fact
common to them.
o C is creditor of D and E, both debts have
been contracted separately. Joinder is not
allowed.
o P is a passenger in a bus owned by O and
driven by D. Joinder is allowed, obligation
arose out of same accident.
Special civil actions CANNOT be joined with

ordinary civil actions because of possible
confusion in the application of procedural rules.
The ff. are not permitted:

o ejectment + money claims
o payment of loan + damages from QD +
foreclosure
6. JOINDER AND MISJOINDER OF CAUSES OF

ACTION
JOINDER a party may in one pleading assert in the
alternative or otherwise as many causes of action as he
may have against an opposing party subject to the following
conditions:
a) the part joining the causes of action shall comply
with the rules on joinder of parties
b) the joinder shall not include special civil actions or
actions governed by special rules
c) where the causes of action are between the same
parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the RTC
provided one of the causes of action falls within
the jurisdiction of said court and the venue lies
therein; and
d) where the claims in all the causes of action are
principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction
Note: The absence of unity of problems is no longer a bar
to joinder of causes of action. The present rule removed
the restriction of venue, jurisdiction, and causes of action
arising from money, the same nature or character or
similar transactions.
Grounds to refuse joinder of causes of action are:
a) the rules on joinder of parties which requires
that
a. the claims arise from the same or
series of transactions, and
b. there is a common question of law or
fact;
b) it must not be cognizable by different
tribunals; and,
c) joinder of ordinary and special civil actions.
C. PARTIES TO CIVIL ACTIONS

2 main parties:
a.
plaintiff the claiming party, may also apply to a

defendant who files a counterclaim, cross-claim or
a 3rd party complaint
b. defendant the defending party, may also apply to
a plaintiff in a counterclaim, cross-claim or a 3rd
party complaint
The ff. may be parties to a civil action:
a. natural persons
b. juridical persons
c. entities authorized by law
Effect when a party impleaded is not (a) to (c)
a.
plaintiff MTD on the ground that the plaintiff has

no legal capacity to sue
b. defendant MTD on the ground that the pleading
asserting the claim fails to state a cause of action,
because a complaint cannot possibly state a cause
of action against one who cannot be party to a civil
action
The restriction on joinder of parties does not apply

where the parties are the same although the
causes of action are separate and distinct from
one another. This question is only relevant when
there are multiple plaintiffs or multiple defendants.
Joinder of causes of action is NOT MANDATORY,

merely PERMISSIVE. It follows the totality test for
purposes of jurisdiction.
MISJOINDER erroneously joined causes of action. It is

NOT a ground for dismissal (Sec. 6 Rule 2) but will result in
the severance of the separate causes of action, upon
motion or courts own initiative.
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C. NECESSARY PARTY
o one who is not an indispensable party but
who ought to be joined if complete relief is
to be accorded.
o Example: joint debtors
1. REAL PARTIES IN INTEREST;

INDISPENSABLE PARTIES; REPRESENTATIVE
AS PARTIES; NECESSARY PARTIES;
INDIGENT PARTIES; ALTERNATIVE
DEFENDANTS
A. REAL PARTY IN INTEREST
o the party who stands to be benefited or
injured by the judgment in the suit, or the
party entitled to the avails of the suit.
o not the same as locus standi, because of
its constitutional underpinnings is very
different from the private suits concept of
real party in interest
o concepts to apply: relativity of contracts,
stipulations pour autrui, accion pauliana,
agency
o ground for dismissal: states no cause of
action
WON
mandatory
WON final
decree can
be had in his
absence
Remedy in
case of
absence
Example #2: A transferee of a property pendente

lite is NOT an indispensable party, as it would in
any event be bound by the judgment against his
predecessor.
15
NO
Plaintiff to implead
at any stage
NECESSARY
NOT MANDATORY should be joined
whenever possible
YES, because his
interests
are
separable from the
interest litigated in
the case
State why such
party is omitted
D. INDIGENT PARTY
o one who has no money or property
sufficient and available for food, shelter
and basic necessities for himself and his
family.
o the application and hearing to litigate as
an indigent litigant is made ex parte
o Effect: exemption from docket fees, other
lawful fees and transcripts of stenographic
notes (but not expenses for summons),
however, such amounts shall be lien on
the judgment rendered in case favorable
to the indigent
B. INDISPENSABLE PARTY
o a real party in interest without whom no
final determination can be had of an
action.
The joinder of indispensable
parties is MANDATORY.
o Effect of non-inclusion: decision is VOID
o Remedy: indispensable party may be
impleaded at any stage of the action.
Burden is on the plaintiff.
o when the order of the court to implead an
indispensable party goes unheeded, case
may be dismissed.
o in a joint obl, the interest of 1 debtor is
separate and distinct from that of his codebtors and a suit against 1 debtor does
NOT make the other an indispensable
party.
o solidarity does NOT make a solidary
obligor an indispensable party in a suit
against another solidary debtor because
relief may be had even against any one of
the solidary debtors.
Example #1: B bought a car from S on installment
with a chattle mortgage. B later sold the car to D
who agreed to pay for the remaining monthly
installments. D failed to pay. May S sue D alone in
the foreclosure suit or replevin? NO. B is an
indispensable party, UNLESS the obligation of B to
S was assigned to D with the consent of S thereby
novating the obligation by a change of debtor.
INDISPENSABLE
MANDATORY - must
be joined at all
conditions
E. REPRESENTATIVE
o someone acting in a fiduciary capacity like
a trustee, guardian, executor or
administrator, or a party authorized by law
or by the Rules.
F.
ALTERNATIVE DEFENDANTS
o where the plaintiff cannot definitely
identify who among 2 or more persons
should be impleaded as a defendant, he
may join all of them as defendants in the
alternative, although a right to relief
against one may be inconsistent with a
right of relief against the other.
2. COMPULSORY AND PERMISSIVE JOINDER OF

PARTIES
COMPULSORY in cases of indispensable parties
PERMISSIVE all others
-
Requisites for Permissive Joinder:

a) the right to relief arises out of the same
transaction or series of transactions;
b) there is a question of law or fact common to all
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c)
the plaintiffs or defendants; and

such joinder is not otherwise proscribed by the
provisions of the Rules on jurisdiction and
venue Pantranco North Express v. Standard
Insurance)
3. MISJOINDER AND NON-JOINDER OF

PARTIES
controversy is of common or general interest to many

persons, and (b) those persons are so numerous as to
make it impractical to bring them all before the court to join
them all as parties. On the other hand, if there are many
persons who have distinct, separate rights against the
same party or group parties, but those rights arise from the
same transaction or series of transactions and there are
common questions of fact or law resulting therefrom the
former may join as plaintiffs in one action against the same
defendants.
MISJOINDER when he is made a party to the action

although he should not be impleaded
5. SUITS AGAINST ENTITIES WITHOUT

JURIDICAL PERSONALITY
NON- JOINDER when he is supposed to be joined but is

not impleaded in the action
Note: Even of neither misjoinder nor non-joinder is a
ground for dismissal of the action, the failure to obey the
order of the court to drop or add a party is a ground for the
dismissal of the complaint under Dismissal due to fault of
plaintiff (Sec.3 Rule 17).
Sec. 15, Rule 3 (Parties to Civil Action)*

Sec. 15. Entity without juridical personality as defendant.
When two or more persons not organized as an entity with
juridical personality enter into a transaction, they may be
sued under the name by which they are generally or
commonly known.
In the answer of such defendant, the names and
addresses of the persons composing said entity must all
be revealed.
4. CLASS SUIT
CLASS SUIT an action where one or more may sue for the
benefit of all, if the ff. requisites concur:
* Note: this rule only applies to defendants
a.
subject matter of the controversy must be

common or general interest to many persons
b. persons are so numerous that it is
impracticable to join all as parties
c. parties actually before the court are
sufficiently numerous and representative as to
fully protect the interests of all concerned
d. representatives sue or defend for the benefit
of all
It is not a common question of law that sustains a class suit
but a common interest in the subject matter of the
controversy.
Example #1: There is NO CLASS SUIT in an action filed 400
residents initiated through the mayor to recover damages
sustained due to their exposure to toxic wastes because
each of the plaintiffs has a separate and distinct injury not
shared by other members of the class. Each supposed
plaintiff has to prove his own injury. There is no common or
general interest in the injuries allegedly suffered.
Sec. 6, Rule 36 (Judgments, Final Orders and

Entry thereof)
Sec. 6. Judgment against entity without juridical
personality. When judgment is rendered against two or
more persons sued as an entity without juridical
personality, the judgment shall set out their individual or
proper names, if known.
Key: subject matter injuries
6. EFFECT OF DEATH OF PARTY LITIGANT
Example #2: NO CLASS SUIT by a corporation to recover

property of its members in their personal capacities.
Note: A class suit shall not be dismissed or compromised
without the approval of the court. In Adm. Matter No. 88-1646, the SC took occasion to distinguish the rules on
permissive joinder of parties and class suit. What is
contemplated in a class suit is that (a) the subject matter in
Sec. 8, Rule 14 (Summons)

Sec. 8. Service upon entity without juridical personality.
When persons associated in an entity without juridical
personality are sued under the name by which they are
generally or commonly known, service may be effected
upon all the defendants by serving upon any one of them,
or upon the person in charge of the office or place of
business maintained in such name. But such service shall
not bind individually any person whose connection with
the entity has, upon due notice, been severed before the
action was brought.
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a. extinguishes the attorney-client relationship

b. within 30 days after such death, it is the duty
of counsel of deceased party to inform the
court; failure to do so is a ground for
disciplinary action
c. court shall determine WON the claim is
extinguished by such death; if the claim
survives, there shall be substitution of parties
(no service of summons reqd, instead: court
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shall order the legal representative of the
deceased to appear and be substituted for
said deceased within 30 days from notice)
d. it is possible that the court may order the
opposing party to procure the appointment of
an executor or administrator for the estate of
the deceased in the ff. situations:
i. counsel for the deceased does not name a
legal representative
ii. there is a representative name but he fails
to appear [Sec. 16, Rule 3]
D. VENUE
5. WHEN THE RULES ON VENUE DO NOT

APPLY
Sec. 4, Rule IV (Venue)
Sec. 4. When Rule not applicable. This Rule shall not
apply.
a) In those cases where a specific rule or law
provides otherwise; or
b) Where the parties have validly agreed in
writing before the filing of the action on the
exclusive venue thereof.
6. EFFECTS OF STIPULATIONS ON VENUE
1. VENUE VERSUS JURISDICTION [SUPRA]
Guidelines on stipulations on venue:

1. the agreement on venue shall, in the first instance, be
normally considered as merely permissive
2. to be restrictive, the language or terminology employed
in the stipulation must be unequivocal and admit of no
contrary or doubtful interpretation
3. in case of irreconcilable doubt, the venue provision
shall be deemed to be permissive;
4. in ascertaining the intent in that provision which
reasonably admits of more than one meaning, the
construction should be adopted which most conduces
to the convenience of the parties [J. Regalados
Separate opinion in Unimasters Conglomeration Inc]
2. VENUE OF REAL ACTIONS

Sec. 1 Rule IV (Venue)
Sec. 1 Venue of real actions Actions affecting title to or
possession of real property, or interest therein, shall be
commenced and tried in the proper court which has
jurisdiction over the area wherein the real property
involved, or a portion thereof, is situated.
Forcible entry and detainer actions shall be commenced
and tried in the municipal trial court of the municipality or
city wherein the real property involved, or a portion
thereof, is situated.
3. VENUE OF PERSONAL ACTIONS
E. UNIFORMITY OF RULES

Sec. 2 Venue of personal actions All other actions may be
commenced and tried where the plaintiff or any of the
principal plaintiffs resides, or where the defendant or any
of the principal defendants resides, or in the case of a
non-resident defendant where he may be found, at the
election of the plaintiff.
Sec. 1, Rule V (Uniform Procedure in Trial

Courts)
Sec. 1 Uniform procedure. The procedure in the
Municipal Trial Courts shall be the same as in the
Regional Trial Courts, EXCEPT (a) where a particular
provision expressly or impliedly applies only to either of
said courts, or (b) in civil cases governed by the Rule on
Summary Procedure.
4. VENUE OF ACTIONS AGAINST NONRESIDENTS
F. PLEADINGS

Sec. 3. Venue of actions against nonresidents. If any
of the defendants does not reside and is not found in the
Philippines, AND the action affects the personal status of
the plaintiff, OR any property of said defendant located in
the Philippines, the action may be commenced and tried
in the court of the place where the plaintiff resides, or
where the property or any portion thereof is situated or
found.
Concept: These are written statements of the respective

claims and defenses of the parties submitted to the court
for appropriate judgment.
Liberal construction: All pleadings shall be liberally
construed so as to do substantial justice the intention of
the pleader is the controlling factor in construing a pleading
and should be read in accordance with its substance, not
its form. BUT, it is also a rule that a party is strictly bound by
the allegations, statements or admissions made in his
pleadings and cannot be permitted to take a contradictory
position.
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Construction of ambiguous allegations in pleadings: since it
is the pleader who elects the language used, such
ambiguities must be at the pleaders peril.
Allowed pleadings: complaint, answer, counterclaim, crossclaim, third (fourth, etc.)-party complaint, complaint-inintervention and reply
iii.
Concept: specific denial of the

material fact or facts alleged in the
pleading of the claimant essential to
his cause or causes of action
ii.
NEGATIVE PREGNANT
Concept: form of negative expression
which carries with it an affirmation or
at least an implication of some kind
favorable to the adverse party. It is a
denial pregnant with an admission of
the substantial facts alleged in the
pleading. Where a fact is alleged with
qualifying or modifying language and
the words of the allegation as so
qualified or modified are literally
denied, has been held that the
qualifying circumstances alone are
denied while the fact itself is
admitted.
(Republic
v.
Sandiganbayan)
iii.
AFFIRMATIVE DEFENSES
Concept: allegation of a new matter
which, while hypothetically admitting
the material allegations in the
pleading of the claimant, would
nevertheless prevent or bar recovery
by him [i.e fraud, prescription, release,
payment, illegality, statute of frauds,
estoppel, former recovery, discharge
in bankruptcy, and any other matter
by way of confession and avoidance]
c) COUNTERCLAIMS
COMPULSORY COUNTERCLAIMS
PERMISSIVE COUNTERCLAIMS
EFFECT ON THE COUNTERCLAIM

WHEN THE COMPLAINT IS
DISMISSED
Sec. 2, Rule 17 (Dismissal of Actions)

Sec. 2. Dismissal upon motion of plaintiff. xxx If a
counterclaim has been pleaded by a defendant prior to
the service upon him of the plaintiffs motion for
dismissal, the dismissal shall be limited to the complaint.
The dismissal shall be without prejudice to the right of the
defendant to prosecute his counterclaim in a separate
action unless within fifteen (15) days from notice of the
motion he manifests his preference to have his
counterclaim resolved in the same action. xxx
Sec. 3. Dismissal due to fault of plaintiff. If, for no
justifiable cause, the plaintiff fails to appear xxx the
complaint may be dismissed upon motion of the
defendant or upon the court's own motion, without
prejudice to the right of the defendant to prosecute his
counterclaim in the same or in a separate action. xxx
d) CROSS-CLAIMS
- Claim against a co-party
May a plaintiff file a cross-claim against his coplaintiff?
Yes, the rules simply refer to a party against a co-party.
May a third-party defendant file a crossclaim

against the plaintiff?
Yes, under sec. 13, rule 6, in proper cases, he (thirdparty defendant) may also assert a counterclaim against
the original plaintiff in respect of the latters claim against
the third-party plaintiff.
e) THIRD (FOURTH, ETC) PARTY

COMPLAINTS
A counterclaim is compulsory if:

a. it arises out of or is necessarily connected
with the transaction or occurrence which
is the subject matter of the opposing
partys claim;
b. it does not require for its adjudication the
presence of third parties of whom the
court cannot acquire jurisdiction; and
ii.
the court has jurisdiction to entertain the

claim both as to its amount and nature,
except that in an original action before the
RTC, the counterclaim may be considered
compulsory regardless of the amount.
Concept: counterclaim need not arise from same

transaction
1. KINDS OF PLEADINGS
a) COMPLAINT
- pleading of plaintiff
b) ANSWER
- pleading of defendant
i.
NEGATIVE DEFENSES
i.
c.
Requisites for a 3rd party action are:

a) that the party to be impleaded must not yet be a
party to the action;
b) that the claim against the 3rd party defendant
must belong to the original defendant;
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c)
the claim of the original defendant against the 3rd

party defendant must be based upon the plaintiffs
claim against the original defendant; and,
d) the defendant is attempting to transfer to the 3rd
party defendant the liability asserted against him
by the original plaintiff [Philtranco Servic v. Paras]
Prohibited pleadings in writ of amparo or habeas data:

counterclaim, cross-claim, third-party complaint, reply and
intervention
3. PARTS OF A PLEADING
a) CAPTION
f) COMPLAINT-IN-INTERVENTION
To warrant intervention, two requisites must concur:
a) the movant has a legal interest in the matter in
litigation, and
b) intervention must not unduly delay or prejudice the
adjudication of the rights of the parties nor should
the claim of the intervenor be capable of being
properly decided in a separate proceeding.
(Mabayo Farms, Inc. v. CA)
The interest, which entitles a person to intervene in a
suit, must involve the matter in litigation and of such direct
and immediate character that the intervenor will either gain
or lose by the direct legal operation and effect of the
judgment. (Garcia v. David)
by plaintiff or counsel, stating in either case his

address
In the absence of a proper notice to the court of a
change of address >> last address of the counsel
of record.
Effect of an unsigned pleading: such pleading produces NO

LEGAL EFFECT. The court, however, may allow the pleader
to sign the same if it was merely due to inadvertence and
not to delay the proceedings.
c) VERIFICATION AND CERTIFICATION

AGAINST FORUM SHOPPING
VERIFICATION by an affidavit declaring that (1) the affiant
has read the pleading, and (2) the allegations therein are
true and correct of his personal knowledge or based on
authentic records.
2. PLEADINGS ALLOWED IN SMALL CLAIM

CASES AND CASES COVERED BY THE RULES
ON SUMMARY PROCEDURE
Lack of proper verification = unsigned pleading =

produces no legal effect
SMALL CLAIMS
accomplished and
verified Statement
of Claim (initiatory
pleading),
accomplished and
verified Response
(equivalent to an
answer)
third-party
complaint, reply and
pleading-inintervention
permissive
counterclaim,
thirdProhibited
party complaint, reply
Pleadings
and
pleading-inintervention
Any claim which the defendant has against the plaintiff
shall be filed as a counterclaim in the Response where the
counterclaim is compulsory. The defendant may however,
elect to file a permissive counterclaim provided that its
amount and nature are covered by Rule for Small Claims
Cases.
b) SIGNATURE AND ADDRESS
Sec. 10, Rule VI (Pleadings)

Sec. 10. Reply. A reply is a pleading, the office or
function of which is to deny, or allege facts in denial or
avoidance of new matters alleged by way of defense in
the answer and thereby join or make issue as to such new
matters. If a party does not file such reply, all the new
matters alleged in the answer are deemed controverted.
Allowed
pleadings
The title of the action contains the names of the parties,

indicating whether they are plaintiffs or defendants. In the
original complaint, ALL must be named but in subsequent
pleadings, it is sufficient to just name the first party.
c) REPLY
SUMMARY PROCEDURE
complaint, compulsory
counterclaim pleaded
in the answer, crossclaim pleaded in the
answer and answers
thereto
Content: (1) name of court, (2) title of action, and (3)

docket number if assigned
information and belief or upon knowledge,

information and belief not proper verification
The absence of a verification may be corrected by
requiring an oath, if the attending circumstances are
such that a strict compliance with the rule may be
dispensed with to serve the ends of justice.
i.
REQUIREMENTS OF A
CORPORATION EXECUTING THE
VERIFICATION/ CERTIFICATION
OF NON-FORUM SHOPPING
CERTIFICATION AGAINST FORUM SHOPPING a

sworn statement in which the plaintiff or principal
party certifies in a COMPLAINT OR INITIATORY
PLEADING the ff. matters:
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(1) that he has not commence any action filed any
claim involving the same issues in any court,
tribunal, or quasi-judicial agency and, to the
best of his knowledge, no such other action or
claim is pending therein;
(2) that of there is such other pending action or
claim, a complete statement of the present
status thereof; and
(3) that if he should therefore learn that the same
or similar action or claim has been filed or is
pending, he shall report that fact within 5 days
therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed.
Requisites of forum shopping:
action or defense (also with reasonable and justifiable

reasons for non-signing)
EE: dishonesty attended the signing of certification (i.e.
forgery)
The certification applies to the complaint and other
initiatory pleadings, i.e. permissive counterclaim, crossclaim, third (fourth, etc)-party complaint, complaint-inintervention, petition or any application in which a party
asserts his claim for relief.
The certification is MANDATORY but not jurisdictional
since jurisdiction over the subject of the action is
conferred by law.
Failure to comply with the required certification:
(1) identity of parties, or at least such parties as

represent the same interests in both actions
(2) identity of rights asserted and relief prayed for, the
relief being founded on the same facts
(3) identity of the 2 preceding particulars such that
any judgment rendered in the pending case,
regardless of which party is successful would
amount to res judicata
GR: NOT curable by mere amendment and shall be a

cause for the dismissal of the action (Sec.5 Rule 7)
E2R: substantial compliance, or presence of special
circumstances or compelling reasons (Vda. De
Formoso v. PNB)
When dismissed (not appealable):
3 ways of committing forum shopping:
GR: without prejudice to the refiling of the complaint

E2R: order of dismissal otherwise provides
(1) filing multiple cases based on the same cause of

action and with the same prayer, the previous case
not having been resolved yet (where the ground for
dismissal is litis pendentia)
action and the same prayer, the previous case
having been finally resolved (where the ground for
dismissal is res judicata)
action, but with different prayers (splitting of cause
of action, where the ground for dismissal is also
either litis pendentia or res judicata)
WILLFUL AND
DELIBERATE
FORUM
SHOPPING
ground
for
summary
dismissal
TEST: whether the elements of litis pendentia (PRC identity of parties, rights or causes of action, and reliefs
sought) are present or whether a final judgment in one
case will amount to res judicata in another.
It is the plaintiff who executes the certification, not the
attorney. It is the petitioner and not the counsel who is
in the best position to know WON he actually filed or
caused the filing of a petition.
NOT WILLFUL
AND
DELIBERATE
FALSE
CERTICATION
ground
for
summary dismissal
---
with prejudice
Without prejudice
--
direct contempt
indirect contempt
administrative
sanctions
--
indirect
contempt
administrative
&
criminal
actions
d) EFFECT OF THE SIGNATURE OF COUNSEL

IN A PLEADING
GR: A certification signed by counsel is a defective

certification and is a valid cause for dismissal.
E2R: SPA (with reasonable and justifiable reasons for
non-signing)
It constitutes a certificate by him that he has read the

pleading; that to the best of his knowledge, information,
and belief there is good ground to support it; and that it is
not interposed for delay.
In case of multiple plaintiffs:

Counsel may delegate the signing of a pleading to another
lawyer but cannot do so in favor of one who is not. Such is
reserved to the members of the legal profession.
GR: all must sign

E2R: only 1 signature is sufficient IF all plaintiffs share
a common interest and invoke a common cause of
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Whenever an actionable document is the basis of a
pleading, pleader should:
4. ALLEGATIONS IN A PLEADING
ULTIMATE FACTS facts essential to a partys cause of
action or defense, such exclude evidentiary facts. They
are the principal, determinate, constitutive facts, upon
the existence of which, the entire cause of action rests.
A pleading must only aver ultimate facts, not
conclusions.
The pleading shall specify the relief sought although
the statement may include a general prayer for such
further or other relief as may be deemed just or
equitable. The inclusion of a general prayer may justify
the grant of a remedy different from or together with
the specific remedy sought, if the facts alleged in the
complaint and the evidence introduced so warrant.
a) MANNER OF MAKING ALLEGATIONS

i. CONDITION PRECEDENT
To contest an actionable document:

a.
specific denial on the genuineness and due

execution of the document under oath (verified);
and
b. set forth what he claims to be the facts
Effect of failure to make specific denials on an actionable
document implied admission of the due execution and
genuineness of the document
1. forgery
2. lack of authority
3. that the document was not in words and figures
set out in the pleadings
Valid defenses despite failure to make specific denials
The ff. defenses are NOT inconsistent with the admission of
genuineness and due execution of the instrument:
1.
2.
3.
4.
5.
FRAUD, MISTAKE, MALICE,

INTENT, KNOWLEDGE AND OTHER
CONDITION OF THE MIND,
JUDGMENTS, OFFICIAL
DOCUMENTS OR ACTS
payment or non-payment
want of consideration
illegality of consideration
usury
fraud
The ff. defenses have NO direct relationship to the

concepts of genuineness and due execution:
1.
2.
3.
4.
5.
6.
FRAUD OR MISTAKE must be stated

with particularity
MALICE, INTENT, KNOWLEDGE OR
OTHER CONDITIONS may be averred
generally (reason: inherent difficulty in
stating the particulars of such)
prescription
release
waiver
statute of frauds
estoppel
former recovery or discharge in bankruptcy
When specific denial not reqd:

a.
when the adverse party does not appear to be a

party to the instrument, or
b. when compliance with an order an inspection of
the original document is refused
b) PLEADING AN ACTIONABLE DOCUMENT

ACTIONABLE DOCUMENT document relied upon
by either the plaintiff or the defendant.
set forth in the pleading the substance of the

instrument or the document, and to attach the
original or the copy of the document to the
pleading as an exhibit and which shall form part of
the pleading; OR
b. with like effect, to set forth in the pleading said
copy of the instrument or document
Waived defenses during trial
Concept: matters which must be complied

with before a cause of action arises,
examples:
- tender of payment (consignation)
- exhaustion of administrative
remedies
- baranggay conciliation
proceedings
- earnest effort toward a
compromise (family members)
- arbitration
Failure to comply: ground for MTD
ii.
a.
EXAMPLE #1: if a son is sued as a substitute party under a

document signed by his deceased father, a specific denial
is sufficient without the same being under oath because
the son is not a party to the document.
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c) SPECIFIC DENIALS
ii.
PURPOSE: to make the party disclose the matters alleged in

the complaint which he succinctly intends to disprove at the
trial, together with the matter which he relied upon to
support the denial. The parties are compelled to lay their
cards on the table.
a.
b.
3 types (Sec. 10, Rule 8):

a.
absolute denial specifies each material

allegation of fact, the truth of which he does not
admit and, whenever practicable, sets forth the
substance of the matters upon which he relies to
support his denial.
>as opposed to a blanket denial, an example of
which is: defendant specifically denies all the
material allegations of the complaint
b. partial denial does not make a total denial of the

material allegations in a specific paragraph, denies
only a part of the averment.
c.
denial by disavowal of knowledge where the

defendant alleges that he is without knowledge or
information sufficient to form a belief as to the
truth of a material averment made in the
complaint, this must be made sincerely and in
good faith
>when such matters are plainly and necessarily
within the defendants knowledge, a claim of
ignorance or lack of information will NOT be
considered as a specific denial.
i.
EFFECT OF FAILURE TO MAKE

SPECIFIC DENIALS
GR: deemed admitted

E2R: not deemed admitted:
a. unliquidated damages
b. conclusions in a pleading
c. non-material averments
>reason: only ultimate facts need to be
alleged in a pleading and only material
allegations have to be denied
WHEN A SPECIFIC DENIAL

REQUIRES AN OATH
denial of an actionable document
denial of allegations of usury in a
complaint to recover usurious interest
NOTE: NOT every allegation of usury requires a specific

denial under oath, it has to be (a) allegations in a complaint
(not in the answer); and (b) complaint is filed to recover
usurious interest. (Rule 8 Sec. 11)
5. EFFECT OF FAILURE TO PLEAD

The rule refers to a defending party, which means that it is
not only a defendant who fails to answer who may be
declared in default.
May a defendant who fails to answer a complaint that has
been amended as a matter of right be declared in default?
No because an answer earlier filed may serve as the
answer to the amended complaint if no new answer is
filed.
May a plaintiff who fails to answer a compulsory
counterclaim be declared in default? As a rule, an answer
to a counterclaim or cross-claim is required and failure to
answer is a ground for default. However, a counterclaim
need not be answered where the answer would be a
repetition of the allegations in the complaint (Navarro v.
Bello, 102 Phil. 1019 (1958) or where the issues raised in
the counterclaim are inseparable from those posed in the
complaint. (Sarmiento v. Juan, 120 SCRA 403) Thus, a
plaintiff who fails or chooses not to answer a compulsory
counterclaim may not be declared in default, principally
because the issues raised in the counterclaim are deemed
automatically joined by the allegations in the complaint.
(Gojo v. Goyala, 35 SCRA 557)
May a defendant who fails to answer a supplemental
complaint be declared in default? No, the answer to the
complaint shall serve as the answer to the supplemental
complaint if no new or supplemental answer is filed. (Rule
11, Sec. 7, 2nd sentence)
If the allegations are deemed admitted, there is no more

triable issue between the parties and if the admissions
appear in the answer of the defendant, the plaintiff may file
a motion for judgment on the pleadings under Rule 34.
a) FAILURE TO PLEAD DEFENSES AND

OBJECTIONS
GR: deemed waived (Sec. 1, Rule 9)
E2R: Ct shall dismiss the claim:
1. no jurisdiction over the subject matter
2. litis pendentia
3. res judicata
4. prescription
5. laches
A party who desires to contradict his own judicial admission

may do so only by either of 2 ways:
a.
by showing that the admission was made through

palpable mistake; OR
b. that no such admission was made
Where a defendant relied solely on res judicata, and

submitted the case for decision on that issue, he is deemed
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to have admitted all the material allegations in the
complaint (Machinery and Engineering v. Quintana). This
principle does not apply where other affirmative defenses
are invoked.
Even if there is failure to raise the affirmative defense of
prescription in a MTD or in an appropriate pleading, and an
amendment would no longer be feasible, still prescription,
is apparent on the face of the complaint may be favorable
considered.
EXAMPLE #1: the accident occurred in 1970, complaint for
damages based on QD was filed in 1975. Prescription was
raised for the first time on an MR. SC held that where the
answer does not take issue with the complaint as to dates
involved in the defendants claim of prescription as a
defense, prescription is not deemed waived UNLESS such
defense raised issues of fact not appearing upon the
preceding pleading (Ferrer v. Ericta [1978] citing Chua Lam
Ko v. Dioso).
Sec. 1, Rule 9 covers situations where a defense or
objection is not raised in an MTD or an answer. It does not
apply where the defenses are raised in the answer but not
included in the pre-trial order. The non-inclusion of the
defense of prescription in the pre-trial order barred its
consideration during the trial (Villanueva doctrine
Villanueva v. CA [2004]).
Can the trial court motu proprio dismiss the complaint?
YES. [Sec. 1, Rule 9; Sec. 4 of Revised Rules on Summary
Procedure]
b) FAILURE TO PLEAD A COMPULSORY

COUNTERCLAIM AND CROSS-CLAIM
PURPOSE: to avoid multiplicity of suits and to dispose of the
whole matter in controversy in one action
Sec. 9 & 10, Rule XI (When to file responsive
pleadings)
Sec. 9. Counterclaim or cross-claim arising after answer.
A counterclaim or a cross-claim which either matured or
was acquired by a party after serving his pleading may,
with the permission of the court, be presented as a
counterclaim or a cross-claim by supplemental pleading
before judgment.
A cross-claim is compulsory:
a. If the court has jurisdiction to entertain the same
b. Does not require for its adjudication the presence
of 3rd parties of whom the court cannot acquire
jurisdiction
When a pleader fails to set up a counterclaim or a crossclaim through oversight, inadvertence, or excusable
neglect, or when justice requires, he may, by leave of court,
set up the counterclaim or cross-claim by amendment
before judgment (Sec. 6, Rule 11).
>BUT if after the decision has become final, party is
precluded and estoppel may be successfully invoked
(Huerta Alba Resort v. CA [2000]).
The filing of MTD is implied waiver of compulsory
counterclaim because they are incompatible remedies.
Defending party must choose only 1. If he decides to file
MTD, he will lose his compulsory counterclaim. BUT if he
opts to set up his compulsory counterclaim, he may still
plead his ground for dismissal as an affirmative defense in
his answer (Financial Building Corp. v. Forbes Park Assoc.
[2000]).
6. DEFAULT
Default occurs when the defending party fails to file his
answer within the reglementary period. It does NOT occur
from the failure of the defendant to attend either the pretrial or trial.
A declaration or order of default is issued as a punishment
for unnecessary delay in joining issues (Vlason Enterprises
Corporation v. CA)
Sec. 10 Omitted counterclaim or cross-claim. When a

pleader fails to set up a counterclaim or a cross-claim
through oversight, inadvertence, or excusable neglect, or
when justice requires, he may, by leave of court, set up
the counterclaim or cross-claim by amendment before
judgment.
The court has no authority to motu propio declare the

defendant in default.
Requisites before a party may be declared in default:
1.
Motion to declare the defending party in
default filed by the claiming party;
2.
Summons validly and previously served
upon him;
The plaintiff may still set up a counterclaim by amending

the complaint as a matter of right or at any time before a
responsive pleading is served.
A compulsory counterclaim cannot be made the subject of

a separate action but should be asserted in the same suit
involving the same transaction or occurrence giving rise to
it. Where the counterclaim is made a subject of a separate
suit, it may be abated upon a plea of auter action pendant
or lities pendentia and / or dismissed on the ground of res
judicata. This is because a compulsory counterclaim is
ancillary to the proceedings the original suit and derives its
jurisdictional support therefrom.
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3.
Defending party must have failed to file

his answer within the reglementary period
or within the period fixed by the court;
4.
Proof of failure to file the answer;
5.
Notification to the defending party of the
motion to declare him in default; and
6.
Hearing for the motion to declare the
defendant in default
* The required hearing of the motion is mandated
by Rule 15, Sec. 4
a) WHEN A DECLARATION OF DEFAULT IS

PROPER
Elements of a valid declaration of default
1.
The court has validly acquired jurisdiction
over the person of the defendant either by
service of summons or voluntary
appearance;
2.
The defendant failed to file the answer
within the time allowed therefor; and
A motion to declare the defendant in
default has been filed by the claiming
party with notice to the defendant.
b) EFFECT OF AN ORDER OF DEFAULT

Note: A declaration of default is not an admission of the
truth/validity of the plaintiffs claims (Monarch Insurance v.
CA)
1. The party declared in default loses his
standing in court, which prevents him from
taking part in the trial.
2. he is still entitled to notices of subsequent
proceedings.
3. He may participate not as a party but as a
witness.
Sec. 3, Rule IX (Effect of Failure to Plead)

(c) Effect of partial default. When a pleading
asserting a claim states a common cause of
action against several defending parties,
some of whom answer and the others fail to
do so, the court shall try the case against all
upon the answers thus filed and render
judgment upon the evidence presented. (4a,
R18).
(d) Extent of relief to be awarded. A judgment
rendered against a party in default shall not
exceed the amount or be different in kind
from that prayed for nor award unliquidated
damages.
(e) Where no defaults allowed. If the
defending party in an action for annulment
or declaration of nullity of marriage or for
legal separation fails to answer, the court
shall order the prosecuting attorney to
investigate whether or not a collusion
between the parties exists, and if there is no
collusion, to intervene for the State in order
to see to it that the evidence submitted is not
fabricated.
7. ACTIONS WHERE DEFAULT ARE NOT ALLOWED

1. Annulment of Marriage;
2. Declaration of Nullity of Marriage; and
3. Legal Separation
Other cases where the motion to declare defendant in
default is prohibited
1. Small Claims Cases
2. Environmental Cases
3. Writ of Amparo
4. Writ of Habeas Data
5. Cases falling under the Rules on Summary
Procedure
4. RELIEF FROM AN ORDER OF DEFAULT

Sec. 3, Rule IX (Effect of Failure to Plead)
Sec. 3 (b) Relief from order of default. - A party declared
in default may at any time after notice thereof and before
judgment file a motion under oath to set aside the order
of default upon proper showing that his failure to answer
was due to fraud, accident, mistake or excusable
negligence and that he has a meritorious defense. In such
case, the order of default may be set aside on such terms
and conditions as the judge may impose in the interest of
justice.
Requisites:
a.
File motion UNDER OATH any time after notice and
before judgment
b.
Failure to answer due to FAME
c.
Meritorious defense
5. EFFECT OF PARTIAL DEFAULT

6. EXTENT OF RELIEF
Action of the court after the declaration/order of default

1. Proceed to render judgment granting the
claimant such relief as his pleading may
warrant;
OR
2. Require the claimant to submit his evidence ex
parte.
* This is a matter of judicial discretion
Remedies of a defending party declared in default
1.
After notice of order and before judgment
i. File a motion under oath to set aside
the order of default and properly show
that (a) the failure to answer was due
to fraud, accident, mistake, or
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2.
3.
excusable negligence; and that (b) he

has a meritorious defense.
After judgment and before judgment
becomes final and executory
i. File a motion for new trial under Rule
37; OR file an appeal from the
judgment as being contrary to the
evidence or law.
After judgment becomes final and
executor
i. File a petition for relief from
judgment under Rule 38.
* However, where the defendant has been wrongly or

improvidently declared in default, the court can be
considered to have acted with GAD, which is correctible by
a petition for certiorari.
When a judgment by default may be rendered despite the
answer having been filed
1.
If a disobedient party refuses to obey an
order requiring him to comply with the
various modes of discovery (Rule 29, Sec.
3(c))
2.
If a party or officer or managing agent of a
party wilfully fails to appear before the
officee who is to take his deposition, or a
party fails to serve answers to
interrogatories (Rule 29, Sec. 5)
Distinguish between substituted service of pleading and

substituted service of summons:
Sec. 8, Rule 13
Sec. 8, If service of pleadings, motions, notices,
resolutions, orders and other papers cannot be made
under the two preceding sections, the office and place of
residence of the party or his counsel being unknown,
service may be made by delivering the copy to the clerk of
court, with proof of failure of both personal service and
service by mail. The service is complete at the time of
such delivery. (Substituted Service of Pleadings)
Sec. 7, Rule 14
Sec. 7 If, for justifiable causes, the defendant cannot be
served within a reasonable time as provided in the
preceding section, service may be effected (a) by leaving
copies of the summons at the defendants residence with
some person of suitable age and discretion then residing
therein, or (b) by leaving the copies at defendants office
or regular place of business with some competent person
in charge thereof. (Substituted Service of Summons)
c) PERIODS OF FILING OF PLEADINGS

In what instances is the period to answer within 15 days?
7. FILING AND SERVICE OF PLEADINGS
a.
Answer to a complaint, within 15 days after

service of summons unless a different
period is fixed by the court. (Rule 11, Sec.
1)
b. Answer to an amended complaint when the
amendment is made as a matter of right,
within 15 days after being served with a
copy thereof. (Rule 11, Sec. 3)
c. Answer to a third (fourth, etc.)-party
complaint, within 15 days after service of
summons, unless a different period is fixed
by the court. (Rule 11, Sec. 5)
Papers required to be filed and served

1. Judgments;
2. Resolutions;
3. Orders;
4. Pleadings subsequent to the complaint;
5. Written motions;
6. Notices;
7. Appearances;
8. Demands;
9. Offers of judgment; and
10. Similar papers
The period is 10 days in the following instances:
a) PAYMENT OF DOCKET FEES
a.
In cases covered by the Rules on Summary

Procedure, defendant shall within 10 days
from service of summons file his answer to
the complaint. (Sec. 5, Rules on Summary
Procedure)
b. Answer to an amended complaint when the
amendment is not a matter of right, within
10 days from notice of the order of
admitting the same. (Rule 11, Sec. 3, 2nd
paragraph)
c. Answer to an amended counterclaim,
amended cross-claim, amended third
(fourth, etc.)-party complaint, and amended
complaint-in-intervention, within 10 days
Sec. 1, Rule 141

Sec. 1 Upon the filing of the pleading or other application
which initiates an action or proceeding, the fees
prescribed therefor shall be paid in full, unless a
staggered basis of payment is allowed by the Rules. xxx
b) FILING VERSUS SERVICE OF PLEADINGS

Filing is the act of presenting the pleading or other
papers to the clerk of court. (Rule 13, Sec. 2)
Service is the act of providing a party with a copy of

the pleading or paper concerned. (Rule 13, Sec. 2)
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from notice of the order of admitting the
same. (Rule 11, Sec. 3, 3rd paragraph)
d. Answer to a counterclaim or cross-claim
must be answered within 10 days from
service. (Rule 11, Sec. 4)
e. A reply may be filed within 10 days from
service of the pleading responded to. (Rule
11, Sec. 6)
f. A supplemental complaint may be
answered within 10 days from notice of the
order admitting the same. (Rule 11, Sec. 7)
In what instance is the period different from either 10 or 15
days?
a.
Where the defendant is a foreign private

juridical entity and service of summons is
made on the government official
designated by law to receive the same, the
answer shall be filed within 30 days after
receipt of summons by such entity. (Rule
11, Sec. 2)
b. Where the defendant is served summons
by publication under Sec. 15, Rule 14. Any
order granting such leave shall specify a
reasonable time which shall not be less
than 60 days after notice within which the
defendant must answer.
d) MANNER OF FILING
Filing is the act of presenting the pleading or other paper to
the clerk of court. (Rule 13, Sec. 2)
Two modes of filing
1.
By presenting the original copy of the
pleading, notice, appearance, motion,
order or judgment personally to the clerk
of court; OR
2.
By registered mail.
e) MODES OF SERVICE
1. Personally
2. By Mail
* If either modes cant be done, service shall be made via
substituted service
Sec. 6, Rule 13
Sec 6. Personal service. Service of the papers may be
made by delivering personally a copy to the party or his
counsel, or by leaving it in his office with his clerk or with
a person having charge thereof. If no person is found in
his office, or his office is not known, or he has no office,
then by leaving the copy, between the hours of eight in
the morning and six in the evening, at the party's or
counsel's residence, if known, with a person of sufficient
age and discretion then residing therein.
b) SERVICE BY MAIL
Sec. 7, Rule 13
Sec. 7. Service by mail. Service by registered mail shall
be made by depositing the copy in the post office in a
sealed envelope, plainly addressed to the party or his
counsel at his office, if known, otherwise at his residence,
if known, with postage fully prepaid, and with instructions
to the postmaster to return the mail to the sender after
ten (10) days if undelivered. If no registry service is
available in the locality of either the senders or the
addressee, service may be done by ordinary mail
The preferred service is by registered mail, and service
by ordinary mail may only be done if no registry is
available in the locality of either the sender or the
addressee.
Service via registered mail is proved by registry receipt
issued by the mailing office and an affidavit of the
person mailing of facts showing compliance.
Service by registered mail is complete upon actual
receipt by the addressee, or after 5 days from the date
he received the first notice of the postmaster,
whichever is earlier.
Service by ordinary mail is complete upon expiration of
10 days after mailing, unless the court otherwise
provides.
c) SUBSTITUTED SERVICE
Upon whom service shall be made

1.
If a party has not appeared by counsel,
then service must be made upon him
2.
If a party has appeared by counsel, then
service upon said party shall be made
upon his counsel or one of them, unless
service upon the party himself is ordered
by the court. This is because when a party
is represented by counsel, notices of all
kinds must be served on said counsel, and
notice to him is notice to the client.
*Service to the parties themselves is not considered
service upon their counsel.
a) PERSONAL SERVICE
26
Sec. 8, Rule 13
Sec8. Substituted service. If service of pleadings,
motions, notices, resolutions, orders and other papers
cannot be made under the two preceding sections, the
office and place of residence of the party or his counsel
being unknown, service may be made by delivering the
copy to the clerk of court, with proof of failure of both
personal service and service by mail. The service is
complete at the time of such delivery.
This mode is availed of only when there is failure to
effect service personally or by mail.
Substituted service of pleadings, motions, notices,
resolutions, orders and other papers should be
distinguished from substituted service of summons.
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a) PROOF OF FILING AND SERVICE
d) SERVICE OF JUDGMENTS, FINAL
ORDERS OR RESOLUTIONS
Sec. 12 &13, Rule 13

Sec. 12. Proof of filing. The filing of a pleading or paper
shall be proved by its existence in the record of the case.
If it is not in the record, but is claimed to have been filed
personally, the filing shall be proved by the written or
stamped acknowledgment of its filing by the clerk of court
on a copy of the same; if filed by registered mail, by the
registry receipt and by the affidavit of the person who did
the mailing, containing a full statement of the date and
place of depositing the mail in the post office in a sealed
envelope addressed to the court, with postage fully
prepaid, and with instructions to the postmaster to return
the mail to the sender after ten (10) days if not delivered.
(n)
Sec. 9, Rule 13
Sec9. Service of judgments, final orders, or resolutions.
Judgments, final orders or resolutions shall be served
either personally or by registered mail. When a party
summoned by publication has failed to appear in the
action, judgments, final orders or resolutions against him
shall be served upon him also by publication at the
expense of the prevailing party.
e) PRIORITIES IN MODES OF SERVICE

AND FILING
Sec.13. Proof of Service. Proof of personal service shall

consist of a written admission of the party served, or the
official return of the server, or the affidavit of the party
serving, containing a full statement of the date, place and
manner of service. If the service is by ordinary mail, proof
thereof shall consist of an affidavit of the person mailing
of facts showing compliance with section 7 of this Rule. If
service is made by registered mail, proof shall be made by
such affidavit and the registry receipt issued by the
mailing office. The registry return card shall be filed
immediately upon its receipt by the sender, or in lieu
thereof the unclaimed letter together with the certified or
sworn copy of the notice given by the postmaster to the
addressee.
Sec. 11, Rule 13

Sec.11. Priorities in modes of service and filing.
Whenever practicable, the service and filing of pleadings
and other papers shall be done personally. Except with
respect to papers emanating from the court, a resort to
other modes must be accompanied by a written
explanation why the service or filing was not done
personally. A violation of this Rule may be cause to
consider the paper as not filed
*gives the court the discretion to consider a pleading or
paper as not filed if the other modes of service or filing
were not resorted to and no written explanation was made
as to why personal service was not done in the first place.
The exercise of discretion must necessarily consider the
practicability of personal service, for Section 11 itself
begins with the clause whenever practicable. If the
offices of opposing counsel are separated by a
considerable distance (In this case, Visayas and Luzon),
personal service of pleadings and motions by one upon the
other is clearly not practicable and a written explanation as
to why personal service was not done would only be
superfluous. [
]
11. AMENDMENT
a) AMENDMENT AS A MATTER OF RIGHT
Sec. 12 Rule 10
Sec. 2: Amendments as a matter of right. A party may
amend his pleading once as a matter of right at any time
before a responsive pleading is served or, in the case of a
reply, at any time within 10 days after it is served.
f) WHEN SERVICE IS DEEMED

COMPLETE
1. Personal Service: upon actual Delivery
2. By Ordinary Mail: expiration of ten (10) days after

mailing, unless the court otherwise provides.
3. By Registered Mail:
actual receipt by the

addressee, or after five (5) days from the date he
received the first notice of the postmaster,
whichever date is earlier
27
This section refers to an amendment made before the

trial court and not before the Court of Appeals, which is
vested with discretion to admit or deny amended
petitions filed before it.
*The right to amend a pleading as a matter of right
may be exercised ONLY ONCE. Hence, even if no
responsive pleading has yet been served, if the
amendment is subsequent to a previous one made as
a matter of right, the subsequent one must be with
leave of court.
The court would be in error if it refuses to admit an
amended pleading made as a matter of right. This is
correctible by mandamus.
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b) AMENDMENTS BY LEAVE OF COURT
Amendment in case of jurisdictional issues on the

original pleading
Herrera: The rule that a plaintiff may not amend his cause
of action for purpose of vesting the court with jurisdiction
which it does not have under the original complaint, only
applies if a responsive pleading had already been filed and
therefore, leave of court is required. Before the filing of a
responsive pleading, the plaintiff may amend his pleading
as a matter of course without leave of court, and this is true
even if a motion to dismiss has been filed, because the
latter is not a responsive pleading.
Riano: A fair reading of jurisprudence recognizes the right
of pleader to amend his complaint before a responsive
pleading is served even if its effect is to correct a
jurisdictional defect. The argument that the court cannot
allow such type of amendment since the court must first
possess jurisdiction over the subject matter of the
complaint before it can act on any amendment has no
application upon an amendment that is made as a matter
of right.
This can be availed of if an amendment has to be made

after service of a responsive pleading, especially when said
amendment is substantial.
Sec. 3, Rule 10
Sec. 3: Amendments by leave of court. Except as
provided in the next preceding Section, substantial
amendments may be made only upon leave of court. But
such leave may be refused if it appears to the court that
the motion was made with intent to delay. Orders of the
court upon the matters provided in this Section shall be
made upon motion filed in court, and after notice to the
adverse party, and an opportunity to be heard.
c) FORMAL AMENDMENT
Sec. 4, Rule 10
Sec. 4: Formal amendments. A defect in the
designation of the parties and other clearly clerical or
typographical errors may be summarily corrected by the
court at any stage of the action, at its initiative or on
motion, prpvided no prejudice is caused thereby to the
adverse party
HOWEVER, an amendment of a complaint to correct a

jurisdictional error cannot be validly done after a
responsive pleading is served, because this time, a leave of
court would be required, which would involve the exercise
of sound judicial discretion. The exercise of this discretion
requires the performance of a positive act by the court. If it
grants the amendment, it would be acting on a complaint
over which it has no jurisdiction.
d) AMENDMENTS TO CONFORM TO OR
AUTHORIZE PRESENTATION OF
EVIDENCE
Amendment in case of lack of cause of action in original

pleading
A complaint whose cause of action has not yet accrued
cannot be cured or remedied by an amended or
supplemental pleading alleging the existence or accrual of
a cause of action while the case is pending. The curing
effect under Sec. 5, Rule 10 is applicable only if a cause of
action in fact exists at the time the complaint is filed, but
the complaint is defective for failure to allege the essential
facts Swagman Hotels and Travel Inc. v. CA
A motion to dismiss is not a responsive pleadings;

hence, an amendment to the complaint would still be a
matter of right during the pendency of the motion to
dismiss.
Even if the motion to dismiss is granted by the court,
the plaintiff may still amend his complaint as a matter
of right before the dismissal becomes final, as long as
no answer has yet been served.
Sec. 5, Rule 10
Sec. 5: Amendments to conform to or authorize
presentation of evidence. When issues not raised by the
pleadings are tried with the express or implied consent of
the parties, they shall be treated in all respects as if they
had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform
to the evidence and to raise these issues may be made
upon motion of any party at any time, even after
judgment; but failure to amend does not affect the result
of the trial of these issues. If evidence is objected to at
the trial on the ground that it is not within the issues
made by the pleadings, the court may allow the pleadings
to be amended and shall do so with liberality if the
presentation of the merits of the action and the ends of
substantial justice will be subserved thereby. The court
may grant a continuance to enable the amendment to be
made.
This provision applies to two situations where evidence not

within the issues raised in the pleadings is offered by the
parties during the trial, and is either:
NOT OBJECTED TO - Said issues are deemed to
have been tried with the consent of the parties. It
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allows an amendment of the pleadings to conform

to the evidence upon motion of a party at any time,
even after judgment, and if the parties fail to
amend, such failure will not affect the trial of said
issues, which are deemed to have been raised in
the pleadings. It also covers situations where a
complaint insufficiently states a cause of action, or
fails to avert the fact that certain conditions
precedent were undertaken and complied with.;
OR
OBJECTED TO The court may nevertheless admit
the evidence where the objecting party fails to
show that the admission of the evidence would
prejudice him in his defense. It is a question of
WON justice will thereby be subserved.
Supplemental pleadings are those which set forth

transactions, occurrences, or events which have
happened since the date of the pleading sought to be
supplemented.
Filing of this pleading requires leave of court, which will
allow the same only upon such terms as are just.
Sec. 6, Rule 10
Sec. 6: Supplemental pleadings. Upon motion of a party
the court may, upon reasonable notice and upon such
terms as are just, permit him to serve a supplemental
pleading setting forth transactions, occurrences or events
which have happened since the date of the pleading
sought to be supplemented. The adverse party may plead
thereto within 10 days from notice of the order admitting
the supplemental pleading.
On the original pleading

Sec. 7 & 8, Rule 10
Sec. 7: Filing of amended pleadings. When any pleading
is amended, a new copy of the entire pleading,
incorporating the amendments, which shall be indicated
by appropriate marks, shall be filed.
Sec. 8: Effect of amended pleadings. An amended
pleading supersedes the pleading that it amends.
However, admissions in superseded pleadings may be
received in evidence against the pleader; and claims or
defenses alleged therein not incorporated in the
amended pleading shall be deemed waived.
e) DIFFERENT FROM SUPPLEMENTAL

PLEADINGS
f) EFFECT OF AMENDED PLEADING
When the cause of action in the supplemental

complaint is different from that in the original, the court
should not admit the supplement.
Filing of an answer to a supplemental pleading is not
mandatory because of the word may in the provision.
This is bolstered by the express provision of the Rules
that answer to the original pleading shall serve as
answer to the supplement if no new/supplemental
answer is filed. A supplemental pleading assumes that
the original is to stand, and that the issues joined with
the original remain as the issues to be tried. (Chan v.
Chan)
On admissions made in the original pleading

Admissions made in the original pleadings cease to be
judicial admissions. However, they may be received in
evidence against the pleader and be utilized as
extrajudicial admissions provided they are formally
offered in evidence. (Ching v. CA)
On summons
Where the defendants have already appeared before
the TC by virtue of summons in the original complaint,
the amended complaint may be served upon them
without need of another summons.
It is not the change of a cause of action that gives rise
to the need to serve another summons but rather the
acquisition of jurisdiction over the persons of the
defendants.
However, where a new defendant is impleaded,
summons must be served upon him.
G. SUMMONS
29
It has been held however, that the original complaint is

deemed superseded and abandoned only if the
amendatory complaint introduces a new or different
cause of action. (Versoza v. CA)
A writ by which the defendant is notified of the action

brought against him.
An important part of this notice is a direction that the
defendant answer the complaint within the period fixed
by the Rules and that unless he so answers, plaintiff
will take judgment by default and may be granted the
relief applied for.
This is a mandatory requirement and not merely a
discretionary matter on the part of the court or the
clerk of court. In fact, knowledge by the defendant or
by its agents of an action filed against it does not
dispense with the need for summons.
The writ is served by the sheriff, his deputy, or other
proper court officer, or for justifiable reasons by any
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3. PERSONAL SERVICE
suitable person authorized by the court issuing the

summons.
Sec. 1&2, Rule 14 (Summons)

Sec. 1: Clerk to issue summons. Upon the filing of the
complaint and the payment of the requisite legal fees, the
clerk of court shall forthwith issue the corresponding
summons to the defendants.
Sec. 2: Contents. The summons shall be directed to the
defendant, signed by the clerk of court under seal, and
contain: (a) the name of the court and the names of the
parties to the action; (b) a direction that the defendant
answer within the time fixed by these Rules; (c) a notice
that unless the defendant so answers, plaintiff will take
judgment by default and may be granted the relief applied
for.
A copy of the complaint and order for appointment of
guardian ad litem, if any, shall be attached to the original
and each copy of the summons.
Sec. 6: Service in person on defendant. Whenever

practicable, the summons shall be served by handing a
copy thereof to the defendant in person, or if he refuses
to receive and sign for it, by tendering it to him.
Under the present rule, this is no longer referred to

as personal service, which is a mode for the
service of pleadings, motions, notices, orders,
judgments and other papers under Rule 13.
Tender of summons is not a separate mode of
service, but a part of it when defendant refuses to
receive and sign for the summons.
4. SUBSTITUTED SERVICE
1. NATURE AND PURPOSE OF SUMMONS IN
RELATION TO ACTIONS IN PERSONAM, IN
REM, AND QUASI IN REM
Since the summons is a writ by which the defendant is
notified of the action brought against him, the most basic
purpose of the summons, whatever the nature of the action
involved, is to satisfy the requirements of procedural due
process.

Sec. 7: Substituted service. If, for justifiable causes, the
defendant cannot be served within a reasonable time as
provided in the preceding section, service may be
effected (a) by leaving copies of the summons at the
defendants residence with some person of suitable age
and discretion then residing therein, or (b) by leaving the
copies at defendants office or regular place of business
with some competent person in charge thereof.
For specific actions, the purpose of the writ is:

In personam
To acquire jurisdiction over the person of the
defendant
In rem and quasi in rem
To satisfy the requirements of due process (since
jurisdiction over the person of the defendant is not
relevant in these actions)
2. VOLUNTARY APPEARANCE
Sec. 20: Voluntary appearance. The defendants
voluntary appearance in the action shall be equivalent to
service of summons. The inclusion in a motion to dismiss
of other grounds aside from lack of jurisdiction over the
person of the defendant shall not be deemed a voluntary
appearance.
Absence or invalidity of service of summons will

not prevent the court from acquiring jurisdiction
over the defendant as long as he performs acts
that could be construed as voluntary appearance.
30
The return must show the following: (a) indicate the

impossibility of service of summons within a
reasonable time; (b) specify the efforts exerted to
locate the defendant; (c) state that the summons was
served upon a person of sufficient age and discretion
who is residing in the address, or who is in charge of
the office or regular place of business of the
defendant. (Jose v. Boyon)
Note, in Jose, when substituted service was resorted to
by the process server allegedly because efforts to serve
the summons personally on the defendants failed, the
plaintiffs filed a motion for leave to effect summons by
publication, which was granted. The SC held that
extraterritorial service of summons or summons by
publication applies only when the action is in rem or
quasi in rem. The first is an action against the thing
itself instead of against the defendants person; in the
latter, an individual is named as defendants and the
purpose is to subject that individuals right in a piece of
property to the obligation or loan burdening it. In the
instant case, what was filed before the TC was an
action for specific performance directed against the
defendants. While the suit incidentally involved a piece
of land, the ownership or possession thereof was not
put in issue since they did not assert any interest or
right over it. Moreover, an action for specific
performance is an action in personam. Having failed to
serve the summons on defendants property, the RTC
did not validly acquire jurisdiction over their persons.
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VYEs comment: In Jose, Justice Panganiban made a
sweeping statement that service of publication is
applicable in actions in rem and quasi in rem but not in
personal suits such as an action for specific performance.
Herrera noted that under previous rulings, summons by
publication has been held as not permissible in actions in
personam. This according to Herrera is too broad and
should not be made to apply to resident defendants. It is
only when the defendant is not a resident of the Philippines
and cannot be found in the Philippines that the court
cannot acquire jurisdiction over its person in actions in
personam.
Requirements for a Substituted Service
1. Impossibility of prompt personal service
a. Reasonable time = so much time as is
necessary under the circumstances for a
reasonably prudent and diligent man to do,
conveniently, what the contract or duty requires
that should be done having a regard for the rights
and possibility of loss, if any, to the other party.
b. Reasonable time for the sheriff to effect a
personal service in order to demonstrate
impossibility of prompt service = 15 to 30 days.
c. Reasonable time for the plaintiff = not more
than 7 days
d. Several attempts = at least 3 tries,
preferably on at least two different dates.
2. Specific Details in the Return
a. The date and time of the attempts on personal
service
b. Reasons behind the failure
c. The inquiries made to locate the defendant
d. The name/s of the occupants of the alleged
residence or house of defendant
e. All other acts done, though futile, to serve the
summons
3. A Person of Suitable Age and Discretion*
a. Attained the age of full legal capacity (18 years
old)
b. Must know how to read and understand
English
c. Must have the relation of confidence to the
defendant
4. A Competent Person in Charge*
a. Must be the one managing the office or
business of defendant, such as the president or
manager
b. Must have sufficient knowledge to understand
the obligation of the defendant in the summons,
its importance, and the prejudicial effects arising
from inaction
*These matters must be clearly and specifically described
in the Return of Summons. [Manotoc v CA]
HIS WHEREABOUTS ARE UNKNOWN

Sec. 14: Service upon a defendant whose identity or
whereabouts are unknown. In any action where the
defendant is designated as an unknown owner, or the
like, or whenever his whereabouts are unknown and
cannot be ascertained by diligent inquiry, service may, by
leave of court, be effected upon him by publication in a
newspaper of general circulation and in such places and
for such time as the court may order.
Applies to any action, WON in personam/in rem/quasi

in rem
Alternatively, the remedy for inability to serve summons
in actions in personam is to hold the case pending in
the archives of the court pending the determination of
the persons whereabouts and properties. A search of
the defendants properties is necessary so the same
may be attached, and said attachment will convert the
action into an in rem/quasi in rem action, which
renders summons by publication valid and effective.
b) SERVICE UPON RESIDENTS

TEMPORARILY OUTSIDE THE
PHILIPPINES
Sec. 16: Residents temporarily out of the Philippines.
When any action is commenced against a defendant who
ordinarily resides within the Philippines, but who is
temporarily pout of it, service may, by leave of court, be
also effected out of the Philippines, as under the
preceding section.
A resident defendant is temporarily out of the country if

he has a residence or place of business in the
Philippines but cannot be served within a reasonable
time of the summons because of his absence in the
Philippines.
Riano: This form of service of summons appears to be
superfluous because without it, a resident defendant
temporarily outside of the Philippines may still be
served through substituted service
6. EXTRA-TERRITORIAL SERVICE, WHEN

ALLOWED
This rule is applicable when:
1.
Defendant is a nonresident;
2.
He is not found in the Philippines; and
3.
The action against him is either in rem or
quasi in rem.
actions in rem and quasi in rem.

An EXCEPTION to this rule is set forth in the two
following instances
HIS IDENTITY IS UNKNOWN OR WHERE
5. CONSTRUCTIVE SERVICE
Generally, constructive service is available only in
a) SERVICE UPON A DEFENDANT WHERE
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Actions involved in extraterritorial service of summons:
1.
Actions affecting the personal status of
the plaintiff;
2.
Actions relating to, or the subject of which
is, property within the Philippines, in which
the defendant has or claims a lien or
interest, actual or contingent;
3.
Actions in which the relief demanded
consists, wholly or in part, in excluding the
defendant from any interest in property
located in the Philippines; or
4.
Actions in which the defendants property
has been attached in the Philippines.
Alternative modes of extraterritorial service:
1.
By personal service;
2.
By publication; OR
In any manner the court may deem
sufficient
Sec. 15: Extraterritorial service. When the defendant
does not reside and is not found in the Philippines, and
the action affects the personal status of the plaintiff or
relates to, or the subject of which is, property within the
Philippines, in which the defendant has or claims a lien or
interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or the property of the
defendant has been attached within the Philippines,
service may, by leave of court, be effected out of the
Philippines by personal service as under Sec. 6; or by
publication in a newspaper of general circulation in such
places and for such time as the court may order, in which
case a copy of the summons and order of the court shall
be sent by registered mail to the last known address of
the defendant, or in any other manner the court may
deem sufficient. Any order granting such leave shall
specify a reasonable time, which shall not be less than 60
days after notice, within which the defendant must
answer.
8. PROOF OF SERVICE
Sec. 4: Return. When the service has been completed,
the server shall, within 5 days therefrom, serve a copy of
the return, personally or by registered mail, to the
plaintiffs counsel, and shall return the summons to the
clerk who issued it, accompanied by proof of service.
Sec. 5: Issuance of alias summons. If a summons is
returned without being served on any or all of the
defendants, the server shall also serve a copy of the
return on the plaintiffs counsel, stating the reasons for
the failure of service, within 5 days therefrom. In such a
case, or if the summons has been lost, the clerk, on
demand of the plaintiff, may issue an alias summons.
Sec. 18: Proof of service. The proof of service of a
summons shall be made in writing by the server and shall
set forth the manner, place, and date of service; shall
specify any papers which have been served with the
process and the name of the person who received the
same; and shall be sworn to when made by a person
other than a sheriff or his deputy.
Sec. 19: Proof of service by publication. If the service
has been made by publication, service may be proved by
the affidavit of the printer, his foreman or principal clerk,
or of the editor, business or advertising manager, to which
affidavit a copy of the publication shall be attached, and
an affidavit showing the deposit of a copy of the
summons and order for publication in the post office,
postage prepaid, directed to the defendant by registered
mail to his last known address.
H. MOTIONS
1. MOTIONS IN GENERAL
a) DEFINITION OF A MOTION
An application for relief other than by a pleading
This mode of service will not be available to

actions in personam.
b) MOTIONS VERSUS PLEADINGS

Motions are used to seek reliefs other those
subject of pleadings, however some of the
rules applicable to pleadings also apply to
motions.
7. SERVICE UPON PRISONERS AND MINORS

Sec. 9&10, Rule 14 (Summons)
Sec. 9: Service upon prisoners. When the defendant is
a prisoner confined in a jail or institution, service shall be
effected upon him by the officer having the management
of such jail or institution who is deemed deputized as a
special sheriff for said purpose.
Sec. 10: Service upon minors and incompetents. When
the defendant is a minor, insane or otherwise an
incompetent, service shall be made upon him personally
and on his legal guardian if he has one, or if none, upon
his guardian ad litem whose appointment shall be applied
for by the plaintiff. In the case of a minor, service may
also be made on his father or mother.
c) CONTENTS AND FORM OF MOTIONS

Motions are to contain the following (Rule 15, Sec. 3):
a.
b.
c.
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statement of relief sought;

grounds upon which the motion is based; and
supporting affidavits and other papers, when so
mandated by the Rules or when necessary to prove
facts stated in the motion
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g) PRO-FORMA MOTIONS
Form:
a.
must be in writing EXCEPT for: (1) motions made in

open court; and (2) motions made in the course of
a hearing or trial (Rule 15, Sec. 2)
rules that apply to pleadings shall also apply to
written motions with respect to caption,
designation, signature, and other matters of form
b.
d) NOTICE OF HEARING AND HEARING OF

MOTIONS
General Rule: Every written motion shall be set for hearing
by the applicant, which hearing shall not be later than 10
days after the filing of the motion.
Exception: Motions which the court may act upon without
prejudicing the rights of the adverse party need not be set
for hearing. (Rule 15, Sec. 4)
2. MOTIONS FOR BILL OF PARTICULARS

a) PURPOSE AND WHEN APPLIED FOR
Notice (Rule 15, Secs. 4 and 5):

Notice of hearing on motions required to be heard
shall be served in such a manner as to ensure its
receipt by the other party at least 3 days before the
date of hearing, unless the court for good cause
sets the hearing on shorter notice.
Said notice shall be addressed to all the parties
concerned and specify the time and date of the
hearing.
Except for motions requiring immediate attention, all
hearing of motions shall be scheduled on Friday
afternoons, or if Friday is a non-working holiday, in the
afternoon fo the next working day. (Rule 15, Sec. 6)
Concept: A procedural principle which requires that every

motion that attacks a pleading, judgment, order or
proceeding shall include all grounds then available, and all
objections not so included shall be deemed waived. (Rule
15, Sec. 8)
This rule is subject to Rule 9, Sec. 1, which contain
objections not deemed waived even if not included in the
motion:
a. lack of jurisdiction over the subject matter;
b. litis pendencia;
c. res judicata;
d. prescription.
f) LITIGATED AND EX PARTE MOTIONS
Litigated motions are those which require a

hearing as without such, the rights of the adverse
parties will be prejudiced.
Ex parte motions are those that do not require said
hearings because the court may act upon them
without prejudicing the adverse parties rights.
Purpose: seek an order from the court directing the pleader

to submit a bill of particulars which avers matters with
sufficient definiteness or particularity to enable the
movant to property prepare his responsible pleading.
motion is to be filed before responding to a

pleading
It is not to enable the movant to prepare for trial, because

in such a case, the proper remedy is to avail of the
discovery procedures under Rules 23 to 29, and also of
mandatory pre-trial under Rule 18.
Aside from the requirements for motions under Rule 15, a
motion for bill of particulars shall point out the (a) defects
complained of; (b) the paragraphs in which they are
contained; and (c) the details desired.
e) OMNIBUS MOTION RULE
A motion which does not meet the requirements of

Rule 15, Secs. 4 and 5 on hearing and notice of
hearing is a worthless piece of paper. Failure of
movants to comply with these requirements is fatal
to their motions. (Vette Industrial Sales Co., Inc. v.
Cheng)
A motion which does not comply with the rules on
motion is considered pro forma and thus, will be
treated as one filed merely to delay the
proceedings. (Marikina Development Corporation
v. Flojo)
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What pleadings can be the subject of a motion for bill of

particulars?
Rules say, Before responding to a pleading, a party may
move for a definite statement or for a bill of particulars of
any matter which is not averred with sufficient definiteness
or particularity to enable him properly to prepare his
responsive pleading. Thus, the following pleadings are
covered: (a) Complaint, the Answer being the responsive
pleading; (b) Answer, the Reply being the responsive
pleading; (c) Counter-claim or cross-claim, the answer
thereto being the responsive pleading; (d) Third-Party
Complaint, the answer thereto being the responsive
pleading; and (e) Reply, but no responsive pleading is
permitted by the Rules.
The Rules further state, if the pleading is a reply, the
motion must be filed within ten (10) days from service
thereof. Herrera said, if the pleading is a reply, this is just
like saying if no responsive pleading is permitted by the
Rules. The former Rule reads, Before responding to a
pleading or, if no responsive pleading is permitted by these
rules
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Period to file responsive pleading in case of amendment
pursuant to an order granting bill of particulars
Problem: Defendant filed a motion for bill of particulars,
which the trial court granted. Thus, plaintiff was directed to
comply with the order. Under Rule 12, Sec. 3, if the motion
is granted, compliance must be effected within 10 days
from notice of the order. The plaintiff in this case has the
option to file a separate pleading or an amended pleading,
serving a copy thereof on the adverse party. What if the
plaintiff opted to file a separate pleading? Upon receipt of
the separate pleading, the defendant has to file his
responsive pleading according to Sec. 5 of Rule 12, within
the period to which he was entitled at the time of the filing
his motion, which shall not be less than five (5) days in any
event.
What if the plaintiff opted to file an amended
complaint, how many days does the defendant has to file
his responsive pleading? Do we apply Sec. 3 of Rule 11,
which states, Where the plaintiff files an amended
complaint as a matter of right, the defendant shall answer
the same within 15 days after being served with a copy
thereof. Or, do we apply Sec. 5 of Rule 12, giving the
defendant the remaining period to which he was entitled at
the time of the filing of his motion for bill of particulars,
which shall not be less than 5 days in any event.
VYEs position: We should apply Rule 12 because the
amendment was made pursuant to an order directing the
plaintiff to submit a bill of particulars or a more definite
statement of any matter alleged in the complaint. In other
words, the amendment in this case was not made as a
matter of right pursuant to the provisions of Rule 10.
In either case, a copy thereof is required to be

served upon the adverse party.
- The bill of particular submitted becomes part of the

pleading for which it is intended (Rule 12, Sec. 6)
Effect of non-compliance or insufficient compliance (Rule
14, Sec. 4):
The court has the following options:
a. order the striking out of the pleading;
b. order the striking out of the portions of the
pleading to which the order was directed; OR
c. make such other order as it may deem just
d) EFFECT ON THE PERIOD TO FILE A

RESPONSIVE PLEADING
A motion for bill of particulars is not a pleading, let alone a
responsive pleading. Thus, WON his motion is granted, the
movant may file his responsive pleading.
The filing of this motion stays or interrupts the period to file
the responsive pleading.
3. MOTION TO DISMISS
This is a course of action that the defendant may
b) ACTION OF THE COURT
After receiving the motion from the clerk of court, the court
has three possible options (Rule 12, Sec.2):
(1) deny the motion outright;
(2) grant the motion outright; OR
(3) hold a hearing on the motion or allow the parties
opportunity to be heard
c) COMPLIANCE WITH THE ORDER AND

EFFECT OF NONCOMPLIANCE
Compliance (Rule 12, Sec. 3):
If the motion is granted, in whole or in part, the
court shall order the pleader to submit a bill of
particulars to the pleading to which the motions is
directed.
Compliance must be effected within 10 days from
notice of the order, unless a different period is
fixed by the court.
Compliance may be done by the pleader by filing
the bill of particulars or a more definite statement
either in (a) a separate pleading; or (b) in the form
of an amended feeling.
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elect to take instead of filing his answer

immediately, assuming that the allegations in the
complaint are already particularized by a bill of
particulars. However, one of the grounds
enumerated below must be present; otherwise, he
has no choice but to file an answer.
This motion hypothetically admits the truth of the
factual allegations of the complaint but not of the
conclusions that may have been made therein.
However, this admission is not the judicial
admission contemplated in Rule 129, Sec. 4
This is a litigated motion.
Under the omnibus motion rule, when a motion to
dismiss is filed, all grounds for objection available
at the time the motion is filed must be invoked;
otherwise they shall be deemed waived, except if
they fall under Rule 9, Sec.1.
a) GROUNDS
Under Rule 16, Sec.1, a motion to dismiss may be filed on
any of the following grounds:
a) lack of jurisdiction over the person of the
defendant;
b) lack of jurisdiction over the subject matter of
the claim;
c) improper venue;
d) plaintiffs lack of legal capacity to sue;
e) litis pendencia;
f) res judicata or prescription;
g) lack of cause of action in pleading;
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h) payment/waiver/abandonment/extinguishme
nt of the claim or demand in plaintiffs
pleading;
i) unenforceability of the claim under the Statute
of Frauds; and
j) non-compliance with a condition precedent for
filing the claim
Under Art. 151 of the Family Code: No suit between
members of the same family shall prosper unless it should
appear from the verified complaint or petition that earnest
efforts toward a compromise have been made, but that the
same have failed. If it is shown that no such efforts were in
fact made, the case must be dismissed.
b) RESOLUTION OF MOTION
The plaintiff has the following options in this case:

a. Depending upon the ground for dismissal, he may
simply refile the complaint.
b. Where the ground for dismissal bars refiling of the
complaint, he may appeal from the order of
dismissal because in this case, the dismissal is
with prejudice.
When there is showing of GAD, he may avail of a
petition for certiorari
d) REMEDIES OF THE DEFENDANT WHEN

THE MOTION IS DENIED
The movant shall file his answer and go through

the usual trial process, and later, he may file a
timely appeal from an adverse judgment.
An order denying a motion to dismiss being
interlocutory is not appealable.
However, the remedies of certiorari or prohibition
may be availed of if there is a showing that the
denial was tainted with GAD. Mandamus may also
be availed of if theres a showing that the court
unlawfully neglected the performance of an act
which the law specifically enjoins.
e) EFFECT OF DISMISSAL OF COMPLAINT

ON CERTAIN GROUNDS
h) DISTINGUISHED FROM DEMURRER TO

EVIDENCE UNDER RULE 33
The motion to dismiss is filed by the defendant before he
files his answer. Meanwhile, a demurrer to evidence is filed
by defendant after the plaintiff has completed the
presentation of his evidence upon the ground that upon the
facts and law the plaintiff has shown no right to relief
I. DISMISSAL OF ACTIONS
1. DISMISSAL UPON NOTICE BY PLAINTIFF;
TWO-DISMISSAL RULE
Dismissal upon notice by plaintiff: Under Sec. 1, Rule 17,
the complaint may be dismissed by the plaintiff by filing a
notice of dismissal at any time before service of the answer
or of a motion for summary judgment. Dismissal here is a
matter of right. (It is therefore possible that the plaintiff
would file a notice of dismissal without his knowing that an
answer has been served on him and filed with the Court by
registered mail, and the Court acting upon the notice
issued an order confirming the dismissal.
Q: What if it turns out that indeed an answer has been filed
in court and served on the plaintiff by registered mail
before the notice of dismissal was filed?
If before the court could issue an order confirming
the dismissal it receives the answer or motion for
summary judgment, the court should disregard the
Under Rule 16, Sec. 5, dismissal of the complaint on

certain grounds bars the refiling of the same action or claim
based on the same grounds
A ground previously invoked in a denied motion to dismiss

does not preclude any future reliance on said grounds.
(Sps. Rasdas v. Sps. Villa)
An order granting a motion to dismiss shall bar the refiling

of the same action or claim if the dismissal is based on any
of the following grounds (Rule 16, Sec. 5):
a. res judicata;
b. prescription;
c. payment/waiver/abandonment/extinguish
ment of the claim or demand; and
d. unenforceability of the claim under the
Statute of Frauds
c) REMEDIES OF PLAINTIFF WHEN THE

COMPLAINT IS DISMISSED
If no motion to dismiss has been filed, any of the grounds

herein may be pleaded as an affirmative defense in the
answer, and, in the discretion of the court, a preliminary
hearing may be had thereon as if a motion to dismiss has
been filed. (Rule 16, Sec. 6)
g) BAR BY DISMISSAL
After the hearing, the court may (Rule 16, Sec. 3):
a. dimiss the action or claim;
b. deny the motion; OR
c. order the amendment of the pleading.
f) WHEN GROUNDS PLEADED AS

AFFIRMATIVE DEFENSES
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notice of dismissal. The plaintiff would then have

to file a motion under Sec. 2.
If it issues an order confirming the dismissal but
eventually receives the answer or motion for
summary judgment, the defendant will have to file
the
appropriate
motion
questioning
the
confirmation of the dismissal. The court may then
have to disregard the notice of dismissal in view of
the filing of an answer or motion for summary
judgment.
It is not the order confirming the dismissal, which

operates to dismiss the complaint. It merely confirms a
dismissal already effected by the filing of the notice of
dismissal.
Is the dismissal of the complaint due to the

fault of the plaintiff under Sec. 3, Rule 17 also
without prejudice to the right of the defendant
to prosecute his counterclaim?
VYEs comment: the defendant can insist on his
counterclaim although the provision that the dismissal is
limited to the complaint is found only in Sec. 2. After all, if
the consequence of a dismissal of the complaint upon
motion of the plaintiff is without prejudice to the right of
the defendant to prosecute his counterclaim, with more
reason should it be without prejudice to said right of the
defendant if the dismissal of the complaint is due to the
fault of the plaintiff.
GENERAL RULE: Dismissal effected this way is without

prejudice.
EXCEPTIONS:
a. the notice provides that the dismissal is with
prejudice (or provides therein a reason that
prevents refiling of the complaint); or
b. plaintiff has previously dismissed the same case in
a court of competent jurisdiction based on or
including the same claim. (Rule 17, Sec.1)
Two-dismissal Rule
Two-dismissal rule applies when the plaintiff has (a) twice
dismissed actions, (b) based on or including the same
claim, (c) in a court of competent jurisdiction.
4. DISMISSAL OF COUNTERCLAIM, CROSSCLAIM OR THIRD-PARTY COMPLAINT
2. DISMISSAL UPON MOTION BY PLAINTIFF;

EFFECT ON EXISTING COUNTERCLAIM
Once either an answer or a motion for summary judgment
has been served on the plaintiff, the dismissal is no longer
a matter of right and will require the filing of a motion to
dismiss, which will now be subject to the approval of the
court.
If granted, this dismissal is without prejudice except if the
order specifies that it is with prejudice.
Effect on existing counterclaim: If one has already been
pleaded by the defendant prior to the service upon him of
the plaintiffs motion to dismiss, and the court grants the
said motion, the dismissal shall be limited to the complaint.
The counterclaim, whether compulsory or permissive, is not
dismissed. (Rule 17, Sec. 2)
Defendant may choose to prosecute his claim in a

separate action or in the same one.
3. DISMISSAL DUE TO THE FAULT OF THE

PLAINTIFF
A complaint may be dismissed even if the plaintiff has no

desire to have the same dismissed, if the same is through
reasons attributed to his fault (Rule 17, Sec.3):
a) failure of the plaintiff, without justifiable
reasons, to appear on the date of the
presentation of his evidence in chief;
b) failure of the plaintiff to prosecute his action
for an unreasonable length of time;
c) failure of the plaintiff to comply with the Rules
of Court; OR
d) failure of the plaintiff to comply with any order
of the court.
In this case, dismissal may be done by the court motu
propio or upon motion filed the defendant.
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Rule 17 shall also apply to the dismissal of any

counterclaim, cross-claim, or third-party complaint. A
voluntary dismissal by the claimant by notice of dismissal
as in Rule 17, Sec. 1 shall be made before a responsive
pleading or a motion for summary judgment is served, or if
there is none, before the introduction of evidence at the
trial or hearing (Rule 17, Sec.4)
J. PRE-TRIAL
1. CONCEPT OF PRE-TRIAL
2. NATURE AND PURPOSE
A pre-trial is a procedural device held prior to the trial for
the court to consider the following purposes (Rule 18,
Sec.2):
a) Possibility of an amicable settlement or a
submission to alternative modes of dispute
resolution;
b) Simplification of issues;
c) Necessity or desirability of amendments to the
pleadings;
d) Possibility of obtaining stipulations or
admissions of facts and of documents to avoid
unnecessary proof;
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e) Limitation of the number of witnesses;
f) Advisability of a preliminary reference of issues
to a commissioner;
g) Propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid ground
therefor be found to exist;
h) Advisability or necessity of suspending the
proceedings; and
i) Such other matter as may aid in the prompt
disposition of the action.
Can the defendant insist on his counterclaim?

Justice Feria opined that the defendant who appears in
the absence of the plaintiff may be allowed to present
evidence on his counterclaim, if any. (See Herrera, p.
817)
Defendants failure to appear: Plaintiff is allowed to present
evidence EX PARTE, and the court is allowed to render
judgment on the basis of said evidence.
In civil cases, pre-trial is MANDATORY for both cases falling

under the RoC and the Rules on Summary Procedure.
Failure of a judge to conduct a pre-trial conference in a civil
case is contrary to elementary rules of procedure, which
constitutes gross ignorance of the law and warrants a
corresponding penalty. (National Power Corporation v.
Adiong)
It is not the court which initiates the setting of the case of
a pre-trial. It is set at the instance of the plaintiff, who shall
have the duty to promptly file the motion to set the case for
pre-trial. This is an ex parte motion ie. no need for a
hearing. (Rule 18, Sec.1)
When plaintiff files motion: Within 5 days after the last
pleading joining the issues has been served and filed (Rule
18, Sec.1). If the plaintiff fails to file said motion within the
given period, the branch clerk of court shall issue a notice
of pre trial (A.M. No. 03-1-09-SC, July 13, 2004)
Last permissible pleading that a party can file is a reply to
the answer to the last pleading asserting a claim.
The last pleading need not be literally construed as one
having been served and filed. For purposes of the pre-trial,
the expiration of the period for filing the last pleading
without it having been served and filed is sufficient.
(Sarmiento v. Juan)
3. NOTICE OF PRE-TRIAL
The notice of pre-trial shall be served on the counsel of
the party if the latter is represented by counsel.
Otherwise, the notice shall be served on the party
himself. The counsel is charged with the duty of
notifying his client of the date, time and place of the
pre-trial. (Rule 18, Sec. 3)
4. APPEARANCE OF PARTIES; EFFECT OF

FAILURE TO APPEAR
It shall be the duty of both the parties and their counsels to
appear at the pre-trial (Rule 18, Sec.4)
Plaintiffs failure to appear: The action shall be DISMISSED

with prejudice except when the court orders otherwise.
(Rule 18, Sec.5)
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The absence of counsel for defendants at pre-trial does not

ipso facto authorize the judge to declare the defendant as
in default and order the presentation of evidence ex parte.
It bears stressing that nothing in the Rules of Court
sanctions the presentation of evidence ex parte upon
instances when counsel for defendant is absent during pretrial. The Rules do not countenance stringent construction
at the expense of justice and equity. In this case, the
defendants were present but their counsel did not appear
despite due notice. (Paredes v. Verano)
When non-appearance excused:
1.
Only for a valid cause; OR
2.
When a representative shall appear on behalf of
the party fully authorized in writing (SPA) to enter
into any of the following matters: (a) amicable
settlement; (b) alternative modes of dispute
resolution; and (c) stipulations and admissions of
facts. (Rule 18, Sec. 4)
The representative must have full authority to
enter into all of the above matters; otherwise, his
authority will be deemed as null.
Although the rule uses OR between the above two
grounds, actually a valid cause is still required in
case of the second ground; otherwise the provision
would not be in accord with the spirit of the Rules.
5. PRE-TRIAL BRIEF; EFFECT OF FAILURE TO

APPEAR
- The parties shall file with the court their
respective pre-trial briefs which shall be received at
least 3 days before the date of the pre-trial. This
pre-trial brief shall be served on the adverse party
in such manner that will ensure his receipt also at
least 3 days before the date of the pre-trial. The
pre-trial brief shall contain the following matters
(Rule 18, Sec. 6):
(a) Statement of their willingness to enter into
an amicable settlement or alternative modes
of dispute resolution, indicating the desired
terms thereof;
(b) Summary of admitted facts and proposed
stipulation of facts;
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(c) Issues to be tried or resolved;
(d) Documents or exhibits to be presented,
stating the purposes thereof;
(e) Manifestation of their having availed of or
their intention to avail of the discovery
procedures or referral to commissioners; and
(f) The number and names of the witnesses,
and the substance of their respective
testimonies.
* Statements and representations made in the
pre-trial briefs are in the nature of judicial
admissions, which bind the parties.
* Failure to file a pre-trial brief shall have the same
effect as failure to appear at the pre-trial.
A.M. No. 03-1-09-SC
guidelines to be observed by trial judges and clerks of
court in the conduct of pre-trial and use of depositiondiscovery measures. Some features are as follows:
1. Summons shall contain a reminder to defendant to
observe restraint in filing a motion to dismiss and
instead allege the grounds thereof as defenses in the
answer.
2. Issue an order requiring the parties to avail of
interrogatories to parties (Rule 25), request for
admission by adverse party (Rule 26), or make use of
depositions under Rule 23 or other measures under
Rules 27 and 27 within 5 days from filing of the
answer.
3. Within 5 days from filing of reply, plaintiff must
promptly move ex parte that the case be set for pretrial conference. If he fails to do so, the Branch COC
shall issue notice of pre-trial.
4. No evidence shall be allowed to be presented and
offered during the trial in support of a partys
evidence-in-chief other than those that had been
earlier identified and premarked during the pre-trial
except if allowed by the court for good cause shown.
Brief must indicate the approximate number of hours
that will be required by the parties for the
presentation of their respective witnesses. Rule on
contents of pretrial brief must be strictly complied
with. The parties are bound by representations and
statements in their respective pretrial briefs.
5. Refer the case to the Philippine Mediation Center for
purposes of mediation if available.
6. Pre-marking of exhibits before the Branch COC and
attached to the records after comparison.
7. Minutes of preliminary conference. Note, preliminary
conference under Rules on Summary Procedure is
different.
8. Active role of the judge in pre-trial
9. Adhere to the one-day examination of witness rule
10. Most important witness rule
11. Use of affidavits of witnesses as direct examination.
In question and answer form.
6. DISTINCTION BETWEEN PRE-TRIAL IN CIVIL

CASE AND PRE-TRIAL IN CRIMINAL CASE
How set
CIVIL CASE
By EX PARTE motion
of the plaintiff
After
the
last
pleading has been
served and filed
CRIMINAL CASE
Ordered by the
court MOTU PROPIO
After arraignment
and within 30 days
from the date the
court
acquires
jurisdiction over the
person
of
the
accused
Considered as an
important objective
Not considered
Not required to be
signed by both
parties and their
counsel but must be
contained in the
record of pre-trial
and the pre-trial
order.
However,
said record is now
required
to
be
signed by both
parties
AND/OR
their counsel.
Imposed upon the
plaintiff and the
defendant
Shall be reduced in
writing and signed
by both the accused
AND
counsel,
otherwise
they
cannot be used
against the accused
When
Possibility of
amicable
settlement
Agreements
and
admissions
Sanctions for
nonappearance
in pre-trial
Pre-trial brief
Required
submitted
to
be
Imposed upon the

counsel for the
accused or the
prosecutor
Not
specifically
required
The Rules on pre-trial are different in petitions for

declaration of nullity of marriage and legal separation.
A.M. No. 02-11-10-SC
Effect of failure to appear at the pre-trial. (a) If the
petitioner fails to appear personally, the case shall be
dismissed unless his counsel or a duly authorized
representative appears in court and proves a valid excuse
for the non-appearance of the petitioner.
(b) If the respondent has filed his answer but fails to
appear, the court shall proceed with the pre-trial and
require the public prosecutor to investigate the nonappearance of the respondent and submit within fifteen
days thereafter a report to the court stating whether his
non-appearance is due to any collusion between the
parties. If there Is no collusion, the court shall require the
public prosecutor to intervene for the State during the
trial on the merits to prevent suppression or fabrication of
evidence.
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7. ALTERNATIVE DISPUTE RESOLUTION
(ADR)
ADR means any process or procedure used to resolve a
dispute or controversy, other than by adjudication of a
presiding judge of a court or an officer of a government
agency, as defined in the ADR law (RA 9285), in which a
neutral third party participates to assist in the resolution of
issues, which includes arbitration, mediation, conciliation,
early neutral evaluation, mini-trial, or any combination
thereof.
Examples of ADR
1.
Commercial arbitration arbitration which covers
matters arising from all relationships of a
commercial nature, whether contractual or not
2.
Court-annexed mediation any mediation process
conducted under the auspices of the court, after
such court has acquired jurisdiction over the
dispute
3.
Court-referrred mediation any mediation process
ordered by a court to be conducted in accordance
with the Agreement of the Parties when an action
is prematurely commenced in violation of such
agreement
4.
Arbitration (Domestic and Foreign)
Cases in which the ADR law does not apply
a) Labor disputes covered by the Labor Code and
its IRR;
b) Civil status of persons;
c) Validity of a marriage;
d) Any ground for legal separation;
e) Jurisdiction of courts;
f) Future legitime;
g) Criminal liability; and
h) Those which by law cannot be compromised.
Confirmation of arbitral awards
The confirmation of domestic arbitral awards shall be
made by the RTC in accordance with the rules of
procedure promulgated by the SC.
Arbitral awards from the CIAC (Construction Industry
Arbitral Award Commission) need not be confirmed by
the RTC to be executor.
The recognition and enforcement of foreign arbitral
awards shall be filed with the RTC in accordance with
the rules of procedure promulgated by the SC. When
said recognition and enforcement is granted by the
RTC, the arbitral award shall be enforced in the same
manner as final and executory decisions of courts of
law in the Philippines.
Venue and jurisdiction
Proceedings for recognition and enforcement of an
arbitration agreement or for vacation, setting aside,
correction or modification of an arbitral award, and any
application with a court for arbitration assistance and
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supervision shall be deemed as special proceedings

and shall be filed with the RTC:
a) where arbitration proceedings are conducted;
b) where the asset to be attached or levied upon,
or the fact to be enjoined is located;
c) where any of the parties to the dispute resides
or has his place of business; OR
d) in the National Judicial Capital Region, at the
option of the applicant.
Appeal from court decisions on arbitral awards
A decision of the RTC confirming, vacating, setting
aside, modifying or correcting an arbitral award may be
appealed to the CA.
Special Rules of Court on ADR (AM 07-11-08-SC)
1. Coverage
a. Relief on the issue of existence, validity, or
enforceability of the arbitration agreement;
b. Referral to ADR;
c. Interim measures of protection;
d. Appointment of arbitrator;
e. Challenge to appointment of arbitrator;
f. Termination of mandate or arbitrator;
g. Assistance in taking evidence;
h. Confirmation, correction or vacation of award
in domestic arbitration;
i. Recognition and enforcement or setting aside
of an award in international commercial
arbitration;
j. Recognition and enforcement of a foreign
arbitral award;
k. Confidentiality/protective orders; and
l. Deposit and enforcement of mediated
settlement agreements
2. Nature of the proceedings
1.
Special
2.
Summary, except for:
a) confirmation, correction or vacation of award
in domestic arbitration;
b) recognition and enforcement or setting aside
of an award in international commercial
arbitration; and
c) recognition and enforcement of a foreign
arbitral award
3. Prohibited pleadings, motions or petitions
a. Motion to dismiss;
b. Motion for bill of particulars;
c. Motion for new trial or for reopening of trial;
d. Petition for relief from judgment;
e. Motion for extension, except in cases where an
ex parte temporary order of protection has
been issued;
f. Rejoinder to reply;
g. Motion to declare a party in default; and
h. Any other pleading specifically disallowed
under any provision of the Special ADR Rules.
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* The court shall motu propio order a pleading/motion that
it has determined to be dilatory in nature be expunged
from the records.
Expanded Coverage of Court-Annexed Mediation (CAM) and
Judicial Dispute Resolution (JDR) A.M. No. 11-1-6-SCPHILJA,
Jan.
11,
2011
(Source:
http://attylaserna.blogspot.com/2011/03/expandedcoverage-of-mediation-and.html)
Judicial proceedings shall be divided into two stages:
(1) from the filing of a complaint to the conduct of
CAM and JDR during the pre-trial stage, and
(2) pre-trial proper to trial and judgment.
The judge to whom the case has been originally raffled,
who shall be called the JDR Judge, shall preside over the
first stage. The judge, who shall be called the trial judge,
shall
preside
over
the
second
stage.
First stage: CAM where the judge refers the parties to the
Philippine Mediation Center (PMC) for the mediation of
their dispute by trained and accredited mediators.
Second stage: JDR Upon failing to secure a settlement of
the dispute during the first stage, the second attempt is
where the JDR judge becomes a mediator-conciliator-early
neutral evaluator in a continuing effort to secure a
settlement.
Third stage: PMC-Appeals Court Mediation (ACM) the
mediator-judge must turn over the case to another judge (a
new one by raffle or nearest/pair judge) who will try the
unsettled case. The trial judge shall continue with the pretrial proper and, thereafter, proceed to try and decide the
case. The third stage is during the appeal where covered
cases are referred to the PMC- ACM unit for mediation.
The following cases shall be referred to CAM and be the
subject
of
JDR
proceedings:
(1) All civil cases and the civil liability of criminal cases
covered by the Rule on Summary Procedure, including the
civil liability for violation of B.P. 22, except those which by
law may not be compromised;
(2) Special proceedings for the settlement of estates;
(3) All civil and criminal cases filed with a certificate to file
action issued by thePunong Barangay or the Pangkat ng
Tagapagkasundo under
the
RevisedKatarungang
Pambarangay Law
(4) The civil aspect of Quasi-Offenses under Title 14 of the
Revised Penal Code;
(5) The civil aspect of less grave felonies punishable by
correctional penalties not exceeding 6 years imprisonment,
where the offended party is a private person;
(6) The civil aspect of estafa, theft and libel;
(7) All civil cases and probate proceedings, testate and
intestate, brought on appeal from the exclusive and original
jurisdiction granted to the first level courts under Section
33, par. (1) of the Judiciary Reorganization Act of 1980;
(8) All cases of forcible entry and unlawful detainer brought
on appeal from the exclusive and original jurisdiction
40
granted to the first level courts under Section 33, par. (2) of
the Judiciary Reorganization Act of 1980;
(9) All civil cases involving title to or possession of real
property or an interest therein brought on appeal from the
exclusive and original jurisdiction granted to the first level
courts under Section 33, par.(3) of the Judiciary
Reorganization Act of 1980; 13 and
(10) All habeas corpus cases decided by the first level
courts in the absence of the Regional Trial Court judge, that
are brought up on appeal from the special jurisdiction
granted to the first level courts under Section 35 of the
Judiciary
Reorganization
Act
of
1980.
The following cases shall NOT be referred to CAM and JDR:
(1) Civil cases which by law cannot be
compromised (Article 2035, New Civil Code);
(2) Other criminal cases not covered under
paragraphs 3 to 6 above;
(3) Habeas Corpus petitions;
(4) All cases under Republic Act No. 9262
(Violence against Women and Children); and
(5) Cases with pending application for Restraining
Orders/Preliminary Injunctions.
However, in cases covered under 1, 4 and 5 where the
parties inform the court that they have agreed to undergo
mediation on some aspects thereof, e.g., custody of minor
children, separation of property, or support pendente
lite, the court shall refer them to mediation.
K. INTERVENTION
Concept: remedy by which a third party, not originally
impleaded in the proceedings, becomes a litigant therein to
enable him, her or it to protect or preserve a right or
interest which may be affected by such proceedings.
A third person is permitted by the court to make himself a
party, either joining the plaintiff, or uniting with the
defendant, or demanding something adversely from both of
them.
Intervention is never an independent action but is auxiliary
and supplemental to the existing litigation. It is merely
collateral, accessory, or ancillary to the principal action.
Not a matter of right, left to the sound discretion of court.
Is intervention an initiatory pleading requiring a
certification against forum shopping?
Under Sec. 3, Rule 19, the intervention shall be made by
complaint filed and served in regular form and may be
answered as if it were an original complaint.
VYEs comment: The complaint-in-intervention is an
initiatory pleading.
1. REQUISITES FOR INTERVENTION

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1. There must be a motion for intervention filed before
rendition of judgment by the trial court. Leave of court is
necessary before a person may be allowed to intervene.
Rule 20
Sec 1. 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.
2. The movant must show in his motion that he:

a) has legal interest in the matter in litigation;
b) has legal interest in the success of any of the
parties;
c) has interest against both parties; OR
d) is so situated as to be adversely affected by a
distribution or disposition of property in the
custody of the court or an officer thereof.
Sec 2. Assignment of cases. The assignment of cases

to the different branches of a court shall be done
exclusively by raffle. The assignment shall be done in
open session of which adequate notice shall be given so
as to afford interested parties the opportunity to be
present.
Interest must be direct and immediate so that he will either

gain or lose by the direct legal operation of the judgment; it
must also be actual and material.
However, notwithstanding the existence of legal interest,
permission to intervene is subject to the courts sound
discretion as to:
(1) WON the intervention will unduly delay or
prejudice the adjudication of the rights of the
original parties, and
(2) WON the intervenors rights may be fully
protected in a separate proceeding
2. TIME TO INTERVENE
Although Sec. 2, Rule 19 says that the motion to intervene
may be filed at ANY TIME BEFORE RENDITION OF
JUDGMENT by the trial court, intervention was allowed:
even on appeal; in a case pending before the SC; after
judgment where it is necessary to protect some interest
which cannot otherwise be protected; and for the purpose
of preserving the intervenors right to appeal.
In one case, intervention was even granted even after the
decision became final and executory. In allowing the same,
the SC held that the permissive tenor of the provision on
intervention shows the intention of the Rules to give to the
court the full measure of discretion in permitting or
disallowing the same. But needless to say, this discretion
should be exercised judiciously and only after
consideration of all the circumstances obtaining in the
case. (Mago v. CA)
M. SUBPOENA
A process directed to a person requiring him to (Rule 21,
Sec. 1):
a) 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 (ad testificandum); and/or
b) Bring with him any books, documents, or other
things under his control (duces tecum).
It is issued by:
a) court before whom the witness is required to
attend;
b) court of the place where the deposition is to
be taken;
c) officer or body authorized by law to do so in
connection with investigations conducted by
said officer or body; OR
d) any Justice of the SC or of the CA in any case
or investigation pending within the Philippines.
Under Rule 32, Sec. 3, it may also be issued by the
commissioner in a trial by commissioner
1. SUBPOENA DUCES TECUM

Grounds for quashal (Rule 21, Sec. 4):
a) it is unreasonable and oppressive;
b) the relevancy of the books, documents or
things does not appear;
c) if the person in whose behalf the
subpoena is issued fails to advance the
reasonable cost of the production thereof;
or,
d) the witness fees and kilometrage allowed
by the Rules were not tendered when the
subpoena was served.
3. REMEDY FOR THE DENIAL OF MOTION TO

INTERVENE
Institute a separate action (A/N: This isnt in the code or in
Riano)
L. CALENDAR OF CASES AND COMPUTATION

OF PERIOD
2. SUBPOENA AD TESTIFICANDUM
Grounds for quashal (Rule 21, Sec.4):
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a) the witness is not bound thereby; or
b) the witness fees and kilometrage allowed
by the Rules were not tendered when the
subpoena was served.
3. SERVICE OF SUBPOENA
Service shall be made in the same manner as
personal or substituted service of summons.

It must be made so as to allow the witness a
reasonable time for preparation and travel to the
place of attendance. (Rule 21, Sec. 6)
Depositions before action

Done via filing a verified petition in the place of
residence of any expected adverse party
Deposition taken is admissible in evidence in any
action subsequently brought involving the same
subject matter
4. COMPELLING ATTENDANCE OF WITNESSES;

CONTEMPT
Sec. 8 & 9, Rule 21 (Subpoena)
Sec 8. Compelling attendance. In case of failure of a
witness to attend, the court or judge issuing the
subpoena, upon proof of the service thereof and of the
failure of the witness, may issue a warrant to the sheriff of
the province, or his deputy, to arrest the witness and bring
him before the court or officer where his attendance is
required, and the cost of such warrant and seizure of
such witness shall be paid by the witness if the court
issuing it shall determine that his failure to answer the
subpoena was willful and without just excuse.
Sec 9. Contempt. Failure by any person without
adequate cause to obey a subpoena served upon him
shall be deemed a contempt of the court from which the
subpoena is issued. If the subpoena was not issued by a
court, the disobedience thereto shall be punished in
accordance with the applicable law or Rule.
Depositions pending appeal

Done via a motion of the party desiring to
perpetuate his testimony asking the court for leave
to take the depositions
Depositions will be allowed if the court finds that
the perpetuation of the testimony is proper to
avoid a failure or delay of justice.
They may be taken and used in the same manner
and under the same conditions prescribed for
depositions taken in pending actions.
a) MEANING OF DEPOSITION
A deposition is the taking of the testimony of any person,
whether he be a party or not, but at the instance of a party
to the action. This testimony is taken out of court.
Exception to the above rules is when a witness resides

more than 100 kilometers from his residence to the
place where he is to testify by the ordinary course of
travel, or to a detention prisoner if no permission of the
court in which his case is pending was obtained. (Rule
21, Sec. 10)
5. QUASHING OF SUBPOENA
Two methods of taking a deposition:

a) oral examination; and
b) written interrogatory (distinct from written
interrogatory to adverse party under Rule 25)
b) USES; SCOPE OF EXAMINATION

Depositions pending action
Against whom may be used (Rule 23, Sec. 4):
(1) any party who was present or represented at the
taking of the deposition; or
(2) one who had due notice of the deposition.
A subpoena may be quashed by the court upon motion

promptly made upon the grounds provided for in the rules.
(Rule 21, Sec. 4)
N. MODES OF DISCOVERY
A discovery is a device employed by a party to obtain
information about relevant matters on the case from the
adverse party in preparation for the trial. The device may be
used by all the parties to the case.
1. DEPOSITIONS PENDING ACTION;

DEPOSITIONS BEFORE ACTION OR PENDING
APPEAL
Depositions pending action

Leave of court required: Before the service of an
answer but after jurisdiction has been acquired over
any defendant or over the property subject of the
action; AND when it is the deposition of a prisoner that
is to be taken
Leave of court NOT required: After an answer has been
served
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When may be used (Rule 23, Sec. 4):

(1) at the trial; or
(2) upon hearing of a motion or an interlocutory
proceedings
How may be used (Rule 23, Sec. 4):
(1) For contradicting or impeaching the testimony of
the deponent as a witness;
(2) For any purpose by the adverse party where the
deponent is a party or at the time of the deposition
was an officer, director, or managing agent of a
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public or private corporation, partnership or
association, which is a party;
(3) For any purpose by any party, where the deponent
is a witness, whether or not a party, if the court
finds that:
a) the witness is dead;
b) the witness resides more than 100 kilometers
from the place of trial or hearing, or is out of
the Philippines, unless it appears that his
absence was procured by the party offering
deposition;
c) the witness is unable to attend or testify
because of age, sickness, infirmity or
imprisonment;
d) the party offering the deposition has been
unable to procure the attendance of witnesses
by subpoena; or
e) when exceptional circumstances exist, upon
application and notice.
At any time during the taking of the deposition, on motion

or petition of any party or of the deponent and upon a
showing that the examination is being conducted in bad
faith or in such manner as unreasonable to annoy,
embarrass, or oppress the deponent or party, the court in
which the action is pending or the RTC of the place where
the deposition is being taken may order the officer
conducting the examination to cease forthwith from taking
the deposition, or may limit the scope and manner of the
deposition, as provided in Rule 29, Sec. 16. (Rule 23, Sec.
18)
2. WRITTEN INTERROGATORIES TO ADVERSE

PARTIES
This mode of discovery is availed of by a party to
Scope (Rule 23, Sec. 2): Any matter, not privileged, which is
relevant to the subject of the pending action, whether
relating to the claim or defense or any other party, including
the existence, description, nature, custody, condition, and
location of any books, documents, or other tangible things
and the identity and location of persons having knowledge
of relevant facts
Depositions before action

How used (Rule 24, Sec. 1): Availed of when a person
desires to perpetuate his own testimony or that of another
person regarding any matter that may be cognizable in any
court of the Philippines.
Depositions pending appeal
How used (Rule 24, Sec. 7): If an appeal has been taken
from a judgment of a court, or before the taking of an
appeal if the time therefor has not expired, the court in
which the judgment was rendered may allow the taking of
depositions of witnesses to perpetuate their testimony for
use in the event of further proceedings in said court.
a) CONSEQUENCES OF REFUSAL TO
ANSWER
Sec. 6, Rule 23
Sec. 6. Objections to admissibility. Subject to Rule 23,
Sec. 29, objections may be made at the trial or hearing to
receiving in evidence any deposition or part thereof for
any reason which would require the exclusion of the
evidence if the witness were then present and testifying
A party not served with written interrogatories may not

be compelled by the adverse party to give testimony in
open court, or to give deposition pending appeal,
unless allowed by the court or to prevent a failure of
justice (Rule 25, Sec. 3)
3. REQUEST FOR ADMISSION
d) WHEN MAY TAKING OF DEPOSITION BE

TERMINATED OR ITS SCOPE LIMITED
The consequences are the same for when a deponent

refuses to answer any question upon oral examination.
(Rule 29, Sec. 1)
b) EFFECT OF FAILURE TO SERVE WRITTEN

INTERROGATORIES
c) WHEN MAY OBJECTIONS TO

ADMISSIBILITY BE MADE
the action for the purpose of eliciting material and

relevant facts from any adverse party.
This is to be distinguished from a bill of particulars,
which is directed to a pleading, because written
interrogatories do not function as such; rather,
they seek disclosure of material and relevant facts
from a party.
It is also to be distinguished from written
interrogatories in a deposition, which are not
served to the adverse party directly but are
delivered to the officer designated in the notice.
Here, the written interrogatories are served directly
upon the adverse party.
The purpose of this mode of discovery is to allow one

party to request the adverse party in writing to admit
certain material or relevant matters which most likely
will not be disputed during the trial. This is to avoid
unnecessary inconvenience to the parties in going
through the rigors of proof.
a) IMPLIED ADMISSION BY ADVERSE PARTY

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Each of the matters of which an admission is

requested shall be deemed admitted unless, within a
period designated in the request, the party to whom
the request is directed files and serves upon the party
requesting the admission a sworn statement either: (a)
denying specifically the matters of which an admission
is requested; or (b) setting forth in detail the reasons
why he cannot truthfully either admit or deny those
matters. (Rule 26, Sec. 2)
5. PHYSICAL AND MENTAL EXAMINATION OF

PERSONS
This mode of discovery applies to an action in which the
mental or physical condition of a party is in controversy
Examples would be:
c)
action for annulment of contract where the

ground relied upon is insanity
d) petition for guardianship of a person alleged to
be insane
e) action to recover damages for personal injury
where the issue is the extent of the injuries of
the plaintiff
b) CONSEQUENCES OF FAILURE TO
ANSWER REQUEST FOR ADMISSION
The rule on implied admission would apply
c) EFFECT OF ADMISSION
Any admission under this rule is only for the purpose of

the pending action and cannot be used in any other
purpose or proceeding. (Rule 26, Sec. 3)
d) EFFECT OF FAILURE TO FILE AND SERVE

REQUEST FOR ADMISSION
The party who fails to avail of this mode of discovery shall
not be permitted to present evidence on facts that are
material and relevant and which are, or ought to be within
the personal knowledge of the other party, unless otherwise
allowed by the court for good cause shown and to prevent
failure of justice. (Rule 26, Sec. 5)
6. CONSEQUENCES OF REFUSAL TO COMPLY

WITH MODES OF DISCOVERY
4. PRODUCTION OR INSPECTION OF
DOCUMENTS OR THINGS
The purpose of this mode of discovery is to allow a party to
seek an order from the court in which the action is pending
to (Rule 27, Sec. 1):
a) Order any party to produce and permit the
inspection and copying or photographing, by or
on behalf of the moving party, of any
designated documents, papers, books,
accounts, letters, photographs, objects or
tangible things, not privileged, which constitute
or contain evidence material to any matter
involved in the action and which are in his
possession, custody or control; OR
b) Order any party to permit entry upon
designated land or other property in his
possession or control for the purpose of
inspecting,
measuring,
surveying,
or
photographing the property or any designated
relevant object or operation thereon.
This requires a motion to be filed by the party, and must
include a showing that it is supported by good cause.
A motion has to be filed showing good cause for the

examination, with notice to the other parties as well,
aside from the party to be examined.
The party causing the examination to be made shall be
entitled upon request to receive from the party
examined a like report of any examination, previously
or thereafter made, of the same mental or physical
examination. If the party examined refuses to deliver
the report, the court may make an order requiring the
delivery on such terms as are just. If it is the physician
who fails or refuses to make a report, the court may
exclude his testimony if offered at the trial. (Rule 28,
Sec. 3)
a. Refusal to answer any question upon oral examination

The court may upon proper application, compel the
deponent/interrogatory, as the case may be, to answer
an oral examination/an interrogatory submitted. (Rule
29, Secs. 1 and 2)
If the deponent/interrogatory still refuses, the court
may cite him in contempt
The court may order the deponent, a party, or the
counsel advising the refusal, or both of them, to pay
the proponent the amount of reasonable expenses
incurred in obtaining the order, including attorneys
fees. (Rule 29, Sec. 1)
If the application for an order to compel a deponent to
answer is denied because of the absence of a
substantial justification, the court may require the
proponent or the counsel advising the application, or
both of them, to pay to the refusing party or deponent
the amount of reasonable expenses incurred in
opposing the application, including attorneys fees
(Rule 29, Sec. 1)
b. Refusal to answer designated or particular questions or
refusal to produce documents or things or to submit to
physical or mental examination
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As regards the matters on which the questions were

asked, they may be ordered by the court to be taken as
established in accordance with the claim of the party
obtaining them. (Rule 29, Sec. 3(a))
The court may refuse to allow the disobedient party to
refuse or support designated claims or defenses, or
prohibit him from introducing in evidence designated
documents or things or items of testimony, or evidence
of physical or mental examination. (Rule 29, Sec. 3(b))
The court may (a) strike out pleadings or parts thereof,
(b) stay the proceedings until the order is obeyed, (c)
dismiss the action or any part thereof, or (d) render a
judgment by default against the disobedient party.
(Rule 29, Sec. 3(c))
The court may direct the arrest of the disobedient party
or agent of the party, except when it is an order to
submit to a physical or mental examination that is
involved. (Rule 29, Sec. 3(d))
c. Refusal to be sworn
The court may consider the refusal as contempt of
court (Rule 29, Sec. 2)
d. Refusal to admit
If the other party later on proves the genuineness of
the document or truth of the matter being refused to
be admitted as genuine by the party, then the court,
upon proper application, may order the latter to pay to
the former the reasonable expenses in making such
proof, including attorneys fees. (Rule 29, Sec. 4)
Concept:
A. Trial is a judicial process of investigating and
determining the legal controversies between
or among the parties.
B. Period of trial terminates when judgment
begins. (Acosta v People)
Trial v Hearing: Hearing is broader as it includes pre-trial
When Trial is Unnecessary:
a) Pleading of parties tender no issue at all:
Judgment on the pleadings [Rule 34]
b) From pleadings and other papers, theres actually
no genuine issue: Summary Judgment [Rule 35]
c) Parties entered into a compromise agreement or
amicable settlement [Rule 18]
d) Complaint dismissed with prejudice or dismissal
has effect of an adjudication on the merits [Sec 5,
Rule 16; Sec. 3, Rule 17, Sec 5 last par., Rule 7]
e) Case under Rules on Summary Procedure
f) Parties agree in writing, upon the facts involved in
the litigation, and submit the case for judgment on
the facts agreed upon, w/o introduction of
evidence [Sec, 6, Rule 30]
Notice of Trial to parties: 5 days before trial date by clerk of
court [Sec.1 , Rule 30]
e. Failure to attend depositions or to serve answers to

interrogatories
If failure is as regards the whole set of interrogatories:
The court may (a) strike out all or any part of the
pleading of the party failing to attend, (b) dismiss the
action or any part thereof, or (c) enter a judgment by
default against said party; and in its discretion, order
him to pay reasonable expenses incurred by the other,
including attorneys fees (Rule 29, Sec. 5)
7. - If failure is as regards a particular question only:
Apply Rule 29, Sec. 3(c), supra.
8. COMPARE WITH MODES OF DISCOVERY

AVAILABLE IN CRIMINAL CASES
1. ADJOURNMENTS AND POSTPONEMENTS

Sec.2, Rule 30 (Trial)
A court may adjourn a trial from day to day, and to any
stated time, as the expeditious and convenient
transaction of business may require, but shall have no
power to adjourn a trial for a longer period than one
month for each adjournment, nor more than three months
in all, except when authorized in writing by the Court
Administrator, Supreme Court.
General Rule: Court may adjourn from day to day to any
stated time as the expeditious and convenient transaction
of business may require,
Limit: Cant adjourn a trial > 1 month for each adjournment,
nor > 3 months in all
Rule 112, Sec. 3(b), paragraphs 2 and 3: The respondent

shall have the right to examine the evidence submitted by
the complainant which he may not have been furnished
and to copy them at his expense. If the evidence is
voluminous, the complainant may be required to specify
those which he intends to present against the respondent,
and these shall be made available for examination or
copying by the respondent at his expense.
C. should not be filed on the last hour especially

when it couldve been filed earlier (Republic v
Sandiganbayan)
Exception to limit: may adjourn under conditions above
when authorized in writing by the Court Administrator,
Supreme Court.
Objects as evidence need not be furnished a party but shall

be made available for examination, copying, or
photographing at the expense of the requesting party.
O. TRIAL
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2. REQUISITES OF MOTION TO POSTPONE
TRIAL

Sec 6 Agreed statement of facts. The parties to any
action may agree, in writing, upon the facts involved in the
litigation, and submit the case for judgment on the facts
agreed upon, without the introduction of evidence.
Postponement NOT a right: Grant or denial of motion

for postponement is addressed to the sound discretion
of the court. Discretion must be exercised intelligently.
[Milwaukee Industries v CTA]
If the parties agree only on some of the facts in issue, the

trial shall be held as to the disputed facts in such order as
the court shall prescribe
Effect of submission of case for judgment based on agreed
facts: No trial because evidence would no longer be
presented
a) FOR ABSENCE OF EVIDENCE

Sec. 4 Requisites of motion to postpone trial for
absence of evidence. A motion to postpone a trial on the
ground of absence of evidence can be granted only upon
affidavit showing the materiality or relevancy of such
evidence, and that due diligence has been used to
procure it. But if the adverse party admits the facts to be
given in evidence, even if he objects or reserves the right
to object to their admissibility, the trial shall not be
postponed.
Partial agreement on facts: Trial held as to the disputed

facts
4. ORDER OF TRIAL; REVERSAL OF ORDER

Sec. 5 Order of trial Subject to the provisions of section
2 of Rule 31, and unless the court for special reasons
otherwise directs, the trial shall be limited to the issues
stated in the pre-trial order and shall proceed as follows:
Requisites:
1. Motion for postponement filed
2. Motion supported by affidavit or sworn certification
showing that:
a. materiality or relevancy of evidence, AND
b. due diligence has been used to procure it.
(a) The plaintiff shall adduce evidence in support of

his complaint;
(b) The defendant shall then adduce evidence in
support of his defense, counterclaim, cross-claim
and third-party complaints;
(c) The third-party defendant if any, shall adduce
evidence of his defense, counterclaim, crossclaim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall
adduce evidence of the material facts pleaded by
them;
(e) The parties against whom any counterclaim or
cross-claim has been pleaded, shall adduce
evidence in support of their defense, in the order
to be prescribed by the court;
(f) The parties may then respectively adduce
rebutting evidence only, unless the court, for
good reasons and in the furtherance of justice,
permits them to adduce evidence upon their
original case; and
(g) Upon admission of the evidence, the case shall
be deemed submitted for decision, unless the
court directs the parties to argue or to submit
their respective memoranda or any further
pleadings.
If several defendants or third-party defendants, and so
forth, having separate defenses appear by different
counsel, the court shall determine the relative order of
presentation of their evidence.
Trial not postponed if: Adverse party admits the facts to be

given in evidence
b) FOR ILLNESS OF PARTY OR COUNSEL

Sec. 4 Requisites of motion to postpone trial for illness
of party or counsel A motion to postpone a trial on the
ground of illness of a party or counsel may be granted if it
appears upon affidavit or sworn certification that the
presence of such party or counsel at the trial is
indispensable and that the character of his illness is such
as to render his non-attendance excusable.
Requisites:
1. Motion for postponement filed
2. Motion supported by affidavit or sworn certification
showing that:
a. presence of party or counsel at trial is
indispensable, AND
b. character of his illness is such as to
render his non-attendance excusable
General Rule: Trial limited to issues stated in pre-trial order;

follows order of trial in Sec. 5
3. AGREED STATEMENT OF FACTS
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Exception: Court directs otherwise for special reasons;
subject to provisions of Sec. 2, Rule 31 (i.e. order separate
trial of any claim, cross-claim or any separate issue)
Severance: order separate trial for claims or separate issue

for convenience or to avoid prejudice
Procedure:
1. Introduction of evidence in support of original claim:
Plaintiff > Defendant > Third/Fourth/other party (if any)
2. Offer rebutting evidence ONLY*
3. Case deemed submitted for decision
6. DELEGATION OF RECEPTION OF EVIDENCE
*Sec. 5 (f) explained [Motion to reopen case to introduce

further evidence]:
General rule: After a party declared the completion of
the presentation of his evidence, he is prevented from
introducing further evidence on his original case
Exception: Party may be permitted to adduce evidence
on their original case even after the presentation of
their original evidence for good reasons AND such
reasons are in furtherance of justice.
D. additional evidence is allowed when: 1) it is
newly discovered; or 2) it has been omitted
through inadvertence or mistake; or 3)
purpose is to correct evidence previously
offered [Republic v Sadiganbayan]
5. CONSOLIDATION OR SEVERANCE OF
HEARING OR TRIAL
General Rule: Judge of court where case is pending shall

personally receive evidence
Exception: Reception of evidence may be delegated to
Clerk of Court* [member of the bar]:
a) in default hearings
b) in ex parte hearings
c) in any case by written agreement of the
parties
*Clerk of Court cant rule on any question or to admission of exhibits
Rule 31 (Consolidation or Severance )

Sec.1 Consolidation. When actions involving a common
question of law or fact are pending before the court, it
may order a joint hearing or trial of any or all the matters
in issue in the actions; it may order all the actions
consolidated, and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary
costs or delay.
7. TRIAL BY COMMISSIONERS
a) REFERENCE BY CONSENT OR ORDERED
ON MOTION
Sec. 1 & 2, Rule 32 (Trial by Commissioner)
Sec. 1 Reference by Consent. By written consent of both
parties, the court may order any or all of the issues in a
case to be referred to a commissioner to be agreed upon
by the parties or to be appointed by the court. As used in
these Rules, the word commissioner includes a referee,
auditor and an examiner.
Sec. 2 Reference ordered on Motion. When parties do not
consent, the court may, upon application of either or of its
own motion, direct a reference to a commissioner in the
following cases:
a) When the trial of an issue of fact requires the
examination of a long account on either side, in
which case the commissioner may be directed to hear
and report upon the whole issue or any specific
question involved therein.
b) When the taking of an account is necessary for the
information of the court before judgment, or for
Sec.2 Separate trials. The court, in furtherance of

convenience or to avoid prejudice, may order a separate
trial of any claim, cross-claim, counterclaim, or third-party
complaint, or of any separate issue or of any number of
claims,
cross-claims,
counterclaims,
third-party
complaints or issues.
Consolidation: subject matter involved and relief demanded
in different suits make it expedient for the court to
determine all of the issues involved and adjudicate the
rights of the parties by hearing the suits together. [Steel
Corp v Equitable PCI Bank]

Sec. 9 Judge to receive evidence; delegation to clerk of
court. The judge of the court where the case is pending
shall personally receive the evidence to be adduced by
the parties. However, in default or ex parte hearings, and
in any case where the parties agree in writing, the court
may delegate the reception of evidence to its clerk of
court who is a member of the bar. The clerk of court shall
have no power to rule on objections to any question or to
the admission of exhibits, which objections shall be
resolved by the court upon submission of his report and
the transcripts within ten (10) days from termination of
the hearing.
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c)
carrying a judgment or order into effect

When a question of fact, other than upon the
pleadings, arises upon motion or otherwise, in any
stage of a case, or for carrying a judgment or order
into effect.
Rule 33 (Demurrer to Evidence)

Sec1 Demurrer to evidence. After the plaintiff has
completed the presentation of his evidence, the
defendant may move for dismissal on the ground that
upon the facts and the law the plaintiff has shown no right
to relief. If his motion is denied he shall have the right to
present evidence. If the motion is granted but on appeal
the order of dismissal is reversed he shall be deemed to
have waived the right to present evidence.
b) POWERS OF THE COMMISSIONER
1.
2.
3.
4.
Sec. 3, Rule 32 (Trial by Commissioner)

Sec3. Order of reference; powers of the commissioner.
When a reference is made, the clerk shall forthwith
furnish the commissioner with a copy of the order of
reference. The order may specify or limit the powers of
the commissioner, and may direct him to report only upon
particular issues, or to do or perform particular acts, or to
receive and report evidence only and may fix the date for
beginning and closing the hearings and for the filing of his
report. Subject to other specifications and limitations
stated in the order, the commissioner has and shall
exercise the power to regulate the proceedings in every
hearing before him and to do all acts and take all
measures necessary or proper for the efficient
performance of his duties under the order. He may issue
subpoenas and subpoenas duces tecum, swear
witnesses, and unless otherwise provided in the order of
reference, he may rule upon the admissibility of evidence.
The trial or hearing before him shall proceed in all
respects as it would if held before the court
GROUND
EFFECT OF DENIAL
EFFECT OF GRANT
WAIVER OF RIGHT TO PRESENT EVIDENCE*
DEMURRER TO EVIDENCE
Ground
Effect of Denial
c) COMMISSIONERS REPORT; NOTICE TO

PARTIES AND HEARING ON THE REPORT
Effect of Grant
Sec. 9 & 10, Rule 32 (Trial by Commissioner)

Sec.9 Report of commissioner. Upon the completion of
the trial or hearing or proceeding before the
commissioner, he shall file with the court his report in
writing upon the matters submitted to him by the order of
reference. When his powers are not specified or limited,
he shall set forth his findings of fact and conclusions of
law in his report. He shall attach thereto all exhibits,
affidavits, depositions, papers and the transcript, if any, of
the testimonial evidence presented before him.
Upon the facts and the law the

plaintiff has shown no right to
relief
Defendant
to
present
his
evidence
order denying demurrer is
interlocutory thus not appealable,
remedy is certiorari
Court action: order reception of
defendants evidence
case shall be dismissed
if on appeal it is reversed,
defendant loses right to present
evidence*
Court action: render judgment on
basis of evidence submitted by
plaintiff; remand to TC is wrong
When is demurrer to evidence availed of?

After plaintiff has completed the presentation of his
evidence
Distinguished from Motion to Dismiss in Rule 16

When made
Sec.10 Notice to parties of the filing of report. Upon the

filing of the report, the parties shall be notified by the
clerk, and they shall be allowed ten (10) days within which
to signify grounds of objections to the findings of the
report, if they so desire. Objections to the report based
upon grounds which were available to the parties during
the proceedings before the commissioner, other than
objections to the findings and conclusions therein, set
forth, shall not be considered by the court unless they
were made before the commissioner.
Grounds
Effect of denial
Effect of grant
DTE
MTD
After plaintiff rests his

case
Only
one
ground
[Plaintiff not entitled
to relief]; res judicata
not a ground
Defendant to present
evidence
Complaint may not be
refilled, remedy
of
plaintiff is to appeal
order or dismissal
Before filing of an
answer
Many grounds [See
Rule 16]; res judicata
proper ground
Defendant to
file
responsive pleading
Complaint may be
refilled, depends on
ground of dismissal
P. DEMURRER TO EVIDENCE
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5. DEMURRER TO EVIDENCE IN A CIVIL CASE
v.
VERSUS DEMURRER TO EVIDENCE IN A
CRIMINAL CASE
How filed
Effect if
demurrer is
granted
Effect if
demurrer is
denied
CIVIL CASE
Without leave
court
of
Dismissal of CASE is
appealable
Defendant
may
present evidence
CRIMINAL CASE
Leave
of
court/without leave
of court
Dismissal of CASE
NOT
appealable
because of double
jeopardy
Defendant may only
adduce evidence if
filed w/ leave of Ct
A judge who was permanently transferred to

another court of equal jurisdiction before the case
heard by him was decided may validly prepare and
sign his decision on the said case and send the
same to the court where he was originally
assigned.
FINAL ORDER refers to the judgment that disposes of a

case in a manner that leaves nothing more to be done by
the court in respect thereto (as opposed to an interlocutory
order).
1. JUDGMENT WITHOUT TRIAL

There could be a judgment on the merits even if there is no
trial.
Q. JUDGMENTS AND FINAL ORDERS
Example #1: A ruling based on a MTD, without any trial or

formal presentation of evidence, i.e. on the ground of
failure to state a cause of action
JUDGMENT the final ruling by a court of competent

jurisdiction regarding the rights or other matters submitted
to it in an action or proceeding.
Jurisprudence does not require that a judgment on the

merits be one rendered after a full blown trial.
Requisites of a valid judgment:

a. Court of tribunal must be clothed with authority to
hear and determine the matter before it
b. Jurisdiction over the parties and subject matter
c. Opportunity to adduce evidence
d. Evidence must have been considered by the
tribunal in deciding the case
e. Judgment must be in writing, personally and
directly prepared by the judge
f. Judgment must state clearly the facts and the law
on which it is based, signed by the judge and filed
with the clerk of court
Specific rules:
i.
A decision with nothing to support it is a patent
nullity and should be struck down and set aside as
void. A void judgment has no legal and binding
effect, force or efficacy for any purpose.
ii.
It is not only judgments which must distinctly and
clearly state the facts and law. The ff. also have
such requirement:
a. Resolutions disposing of a MTD this
requirement proscribes the common
practice of perfunctorily dismissing a MTD
for lack of merit.
On the other hand, for interlocutory orders and
memorandum decisions, there is no such
requirement.
iii.
It is not necessary that the judge who heard the
evidence be the same judge who shall pen the
decision. He may base the decision on the
evidence on record.
iv.
Judgment penned by a judge who had ceased to
be a judge (i.e. retirement) cannot acquire a
binding effect.
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2. CONTENTS OF A JUDGMENT
a) Ratio Decidendi (body)
b) Fallo (dispositive)
GR: In case of conflict between the ratio decidendi and
fallo, the latter prevails. This rests on the theory that the
fallo is the final order while the opinion in the body is
merely a statement ordering nothing.
E2R: Where the inevitable conclusion from the body of the
decision is so clear that there was a mere mistake in the
dispositive portion, the body of the decision shall prevail.
3. JUDGMENT ON THE PLEADINGS

The concept of a judgment on the pleadings will NOT APPLY
when no answer is filed. It will come into operation when an
answer is served and filed but the same fails to tender an
issue or admits the material allegations of the adverse
partys pleading (Sec. 1, Rule 34). An answer fails to tender
an issue when the material allegations of the other party
are admitted and not specifically denied by the pleader.
Under the rules, material allegations of the complaint not
specifically denied are deemed admitter.
A judgment on the pleadings CANNOT be rendered by court
motu propio. It can only be done where there is a prior
motion to the effect filed by the appropriate party (Sec. 1,
Rule 34)
On award of damages
In default under Rule 9, the judgment shall not exceed
the amount or be different in kind from that prayed for.
Liquidated damages are not to be awarded. It provides:
Thereupon, the court shall proceed to render
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judgment granting the claimant such relief as his
pleading may warrant, unless the court in its discretion
requires the claimant to submit evidence.
Non-appearance during pretrial
In case of non-appearance of the defendant in pre-trial
under Rule 18, it shall be a cause to allow the plaintiff
to present his evidence ex parte and the court to
render judgment on the basis thereof. In judgment on
the pleadings under Rule 34, the court may direct
judgment on such pleading.
When the facts as pleaded by the parties are disputed

or contested, proceedings for summary judgment
cannot take the place of trial.
a) FOR THE CLAIMANT
at any time after the pleading in answer thereto has

been served (Sec. 1 Rule 35)
b) FOR THE DEFENDANT
Can a motion for judgment on the pleadings be

granted ex parte?
The SC in Dino v. Valencia, 175 SCRA 406, explained that
Sec. 1 of Rule 34 (formerly Sec. 1 of Rule 19) does not
state whether the motion for judgment on the pleading
may be considered ex-parte or only after notice of hearing
served on the adverse party. A motion for a judgment on
the pleadings, where the answer admits all the material
averments of the complaint is one that may be
considered ex-parte because, upon the particular facts
presented and laid before the court, the plaintiff is
entitled to the judgment. Besides, the purpose of the law
in requiring the filing of motions at least 3 days before the
hearing thereof is to avoid surprises upon the opposite
party and to give the latter time to study and meet the
arguments of the movant. This purpose has been
sufficiently complied with, the petitioner having filed an
opposition to the said motion.
Note, under Sec. 2, Rule 18, during the pre-trial, the court
shall consider (g) 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.
at any time (Sec. 2 Rule 35)
c) WHEN THE CASE NOT FULLY

ADJUDICATED
the court shall ascertain not only what material facts

are actually and in good faith controverted but also
what material facts exist without substantial
controversy (Sec. 4 Rule 35)
d) AFFIDAVITS AND ATTACHMENTS
Cases where judgment on the pleadings will not apply:

a. Actions for declaration of nullity of a
marriage
b. Actions for annulment of marriage
c. Actions for legal separation
*in the above cases, the material facts alleged in the
complaint shall always be proved.
where affidavits were presented in bad faith, or solely

for the purpose of delay, the court shall order the
offending party or counsel to pay the amount of
reasonable expenses which the filing of affidavits
caused him to incur, including attorneys fees. It may,
after hearing, further adjudge the offending party or
counsel guilty of contempt (Sec. 6 Rule 35)
5. JUDGMENT ON THE PLEADINGS VERSUS
SUMMARY JUDGMENTS
Requisite
Who may file
the motion
4. SUMMARY JUDGMENTS
A summary judgment, also called accelerated

judgment, is proper where, upon a motion filed after
the issues had been joined and o the basis of the
pleadings and papers filed, the court finds that there is
no genuine issue as to any material fact.
By genuine issue is meant an issue of fact which calls
for the presentation of evidence as distinguished from
an issue which is fictitious and contrived, set up in bad
faith and patently unsubstantial so as not to constitute
a genuine issue for trial.
JUDGMENT ON THE
PLEADINGS
No factual issue
Claiming party, i.e.
plaintiff
or
a
counterclaimant
Pleading only
Basis
Notice
Requirement
SUMMARY
JUDGMENT
No genuine issue
Either claiming or
defending party
Pleadings, affidavits,
depositions
and
admissions
3 days
6. RENDITIONS OF JUDGMENTS AND FINAL
ORDERS
Separate judgment Sec. 5, Rule 36 When more than
one claim for relief is presented in an action, the court, at
any stage, upon determination of the issues material to a
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particular claim and all counterclaims arising out of the
transaction or occurrence which is the subject matter of the
claim, may render a separate judgment disposing of such
claim.
Filing of a petition for relief, as one of its

periods, not more than 6 mos. from the entry
of judgment or final order (Sec. 3 Rule 38)
Several judgment Sec. 4, Rule 36 In an action against

several defendants, the court may, when a several
judgment is proper, render judgment against one or more
of them, leaving the action to proceed against the others.
Justice Feria pointed out that a several judgment is an
example of a multiple appeal. Justice Herrera however
observed that under Sec. 1 (f), Rule 41, no appeal may be
taken from a judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and third-party complaints
while the main case is pending, unless the court allows an
appeal therefrom.
R. POST-JUDGMENT REMEDIES
Partial judgment Sec. 4, Rule 35 If on motion for

summary judgment, judgment is not rendered upon the
whole case or for all the reliefs sought and a trial is
necessary, the court at the hearing of the motion, by
examining the pleadings and the evidence before it and by
interrogating counsel shall ascertain what material facts
exist without substantial controversy and what are actually
and in good faith controverted. It shall thereupon make an
order specifying the facts that appear without substantial
controversy, including the extent to which the amount of
damages or other relief is not in controversy, and directing
such further proceedings in the action as are just. The facts
so specified shall be deemed established and trial shall be
conducted on the controverted facts accordingly.
A partial summary judgment does not however finally

dispose of the action. It is merely an interlocutory order and
not a final judgment and is not appealable. As explained in
GSIS v. Philippine Village Hotel, 438 SCRA 567, what the
rules contemplate is that the appeal from the partial
summary judgment shall be taken together with the
judgment that may be rendered in the entire case after a
trial is conducted on the material facts on which a
substantial controversy exists.
NT (i) FAME or (ii) Newly discovered evidence
7. ENTRY OF JUDGMENT AND FINAL ORDER

Concept: physical act performed by the clerk of court in
entering the dispositive portion of the judgment in the
books of entries on judgment after the same has become
final and executor.
Under Sec. 2 Rule 36, the DATE OF FINALITY of the
judgment or final order shall be deemed to be the DATE OF
THE ENTRY. This rule is irrespective of the actual date when
the physical act of entry was made (to eliminate confusion).
Relevance of knowing the date of entry of a judgment:
For reckoning dates on
a. Execution of a judgment by a motion within 5
years from the entry of judgment (Sec.6 Rule
39)
51
The remedies against a judgment may refer to (i) those

remedies before a judgment becomes final and executory
and (ii) those remedies after the same becomes executory.
i.
MR, New Trial and Appeal
ii.
Petition for relief from judgment, action to
annul a judgment, certiorari and collateral
attack of a judgment
1. MOTION FOR NEW TRIAL OR

RECONSIDERATION
must be in writing
served to the adverse party
anchored on the proper grounds
Both MR and NT are NOT allowed in summary procedure

and small claims.
a) GROUNDS
MR (i) damages awarded are excessive, (ii) that the
evidence is insufficient to justify the decision or final order,
or (iii) that the decision or final order is contrary to law
If the ground for NT is FAME, it shall be supported by

affidavits of merit, which state the meritorious defense of
the moving party. Such should state facts, and not mere
opinions or conclusions of law.
If the ground for NT is Newly Discovered Evidence, it shall
be supported by (a) affidavits of the witnesses by whom
such evidence is expected to be given, or (b) by duly
authenticated documents which are proposed to be
introduced in evidence.
Requisites for Newly Discovered Evidence
a. The evidence was discovered after trial;
b. That such evidence could not have been
discovered and produced at the trial even with
the exercise of reasonable diligence;
c. That it is material, not merely cumulative,
corroborative or impeaching; and
d. The evidence is of such weight that it would
probably change the judgment if admitted.
b) WHEN TO FILE
15 days after notice
c) DENIAL OF THE MOTION; EFFECT

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PRO FORMA MOTION is one which does not satisfy the
requirements of the rules and one which will be treated as
a motion intended to delay the proceedings.
When MR or NT is denied, the moving party has a fresh 15day period to appeal the judgment or final order (not the
denial of MR or NT). The reckoning date is from the notice
of denial of MR or NT.
Denial of the motion will NOT TOLL PRESCRIPTIVE PERIOD.

Neypes v. CA - SC cited cases of Quelnan v. VHF Phil. (July
7, 2004) and Apuyan v. Haldeman (September 20, 2004)
where it was held that an order denying a motion for
reconsideration of a judgment is a final order contemplated
in Sec. 3, Rule 41, which states that the appeal shall be
taken within 15 days from notice of judgment or final order
appealed from. Hence, the use of or in the above
provision supposes that the notice of appeal may be filed
within 15 days from the notice of judgment or within 15
days from notice of the final order, xxx denying the motion
for a new trial or reconsideration. In both cases, the SC said
the petitioner had the remaining time of the 15-day appeal
period to file a notice of appeal.
The ff. were held to be pro forma MRs:

i.
It was the 2nd MR
ii.
It did not comply with the rule that the
motion must specify the findings and
conclusions alleged to be contrary to law
or not supported by the evidence
iii.
It failed to substantiate the alleged errors
iv.
It merely alleged that the decision in
question was contrary to law
v.
The adverse party was not given notice
thereof
Remedy when MR or New Trial is denied Under Sec. 9
Rule 37, to appeal from the judgment or final order. Note
that effective Dec. 27, 2007, amendments to Rule 41 by
A.M. No. 07-7-12-SC disallowed the recourse to petition for
certiorari under Rule 65.
A second motion is allowed for NT, but not to MR. A motion
for NT shall include all the ground then available. Those not
so included are deemed waived. However, when a ground
for NT was not existing or available when the first motion
was made, a second motion for NT may be filed within the
period allowed by excluding the time during which the first
motion had been pending (Sec. 5 Rule 37).
The fresh period rule becomes significant only when a party

opts to file a motion for new trial or motion for
reconsideration.
f) COMPARE WITH MOTION FOR NEW

TRIAL OR RECONSIDERATION IN
CRIMINAL CASES
d) GRANT OF THE MOTION; EFFECT

MR or New Trial shall be resolved within 30 days from the
time it is submitted for resolution.
Motion for New Trial
MR If the court finds that excessive damages have been

awarded or that the judgment or final order is contrary to
the evidence or law, it may amend such judgment or final
order accordingly.
NT If a new trial is granted, the original judgment is
vacated. The case stands for trial de novo and will be tried
anew. The recorded evidence taken upon the former trial
shall be used at the new trial without retaking the same if
the evidence is material and competent (Sec. 6, Rule 37).
Partial New Trial applies when the issues are severable
and the court finds that a motion affects only a part, or less
tan all of the matters in controversy. The court may either
enter a judgment or final order as to the rest, or stay the
enforcement of such judgment or final order until after the
new trial (Sec. 8, Rule 37)
e) REMEDY WHEN MOTION IS DENIED,

FRESH 15-DAY PERIOD RULE
Note: 2nd par. of Sec. 3, Rule 41 says..."The period to

appeal shall be interrupted by a timely motion for new trial
or
reconsideration..."
SC held (a) to standardize the appeal periods and (b) to
afford litigants fair opportunity to appeal their cases, it was
deemed practical to allow a fresh period of 15 days. The
rule applies to Rule 40, 41, 42, 43 and 45.
Grounds
When filed
Filed after judgment

is rendered but
before the finality
thereof
CRIMINAL
1.errors of law or
irregularities
2.new and material
evidence discovered
(same requisites)
is rendered but
before the finality
thereof
Motion for Reconsideration
Grounds
52
CIVIL
1.FAME
2.Newly discovered
evidence
(same
requisites)
CIVIL
1.damages awarded
are excessive
2.that the evidence
is insufficient to
justify the decision
or final order
CRIMINAL
1.errors of law
2.errors of fact in
the judgment, which
require no further
proceedings
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When filed
3.that the decision

or final order is
contrary to law
is rendered but
before the finality
thereof

is rendered but
before the finality
thereof
53
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LAW 125

PROF. VICTOR ELEAZAR

OF THE SC TO AMEND AND SUSPEND

A. CONCEPT OF REMEDIAL LAW

Remedial law is that branch of law which

The constitutional power of SC to promulgate, amend or

B. SUBSTANTIVE LAW AS DISTINGUISHED

FROM REMEDIAL LAW

It makes vested rights

Reasons that would warrant the suspension:

Governs acts which took

c. POWER TO SUSPEND PROCEDURAL RULES

Rule on liberal construction

Source of rule-making power: CONSTITUTION

The Court has the sole prerogative* to amend, repeal, or

ON THE RULE-MAKING POWER OF

Limits provided by the Constitution:

When compelling reasons so warrant or when the

C. RULE-MAKING POWER OF THE SUPREME

Power to amend and suspend includes power to

where the resolution of the motion is

e. RETROACTIVITY OF PROCEDURAL RULES

Exception: may be made applicable to actions pending

of laches or stale demands in Tijam is the exception to the

Concept: power of court to resolve issues presented in a

Plaintiff: filing of the

f. BASIC PRINCIPLES IN JURISDICTION

OVER THE RES

General Rule: prospective; no retroactive effect

Fixed by law and cannot be

OVER THE PARTIES

authority of a court higher

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Where the demand exclusive of interest,

C.) THIRD LEVEL (CA, Sandiganbayan)

*concurrent jurisdiction is subject to hierarchy of courts (e.g. SC,

D. NATURE OF PHILIPPINE COURTS

2. COURT AS DISTINGUISHED FROM A JUDGE

Being in imagination like a

b) It also has exclusive appellate jurisdiction

Jurisdiction does not attach to the judge but to the court.

D.) FOURTH LEVEL SC

3. CLASSIFICATION OF PHILIPPINE COURTS

A.) FIRST LEVEL (MTCs, MeTCs, MCTCs) which try

Criminal actions involving:

2. Civil actions including:

B.) SECOND LEVEL (RTCs, Family Courts)

Over all criminal cases involving:

cases from MTC

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*SC en banc not an

6. CONSTITUTIONAL AND STATUTORY COURTS

*Sandiganbayan is not a Constitutional court, created by PD 1486

7. COURTS OF LAW AND EQUITY

Philippine courts are both courts of law and equity

8. PRINCIPLE OF JUDICIAL HIERARCHY

Concept: courts of equal and coordinate jurisdiction cannot

Concept: same as above; when law provides for an appeal

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A. JURISDICTION OVER PARTIES

JURISDICTION OVER THE DEFENDANT IS

See previous table.