Civ Pro

Remedial Law Review Notes under Atty Ferdinand Tan
CONSOLIDATED NOTES in CIVIL PROCEDURE

Notes by: Paul Lemuel E. Chavez
CIVIL PROCEDURE NOTES

PRELIMINARIES
1. Civil Procedure (Rules 1-71)
Remedial Law
2. Special Proceedings (Rules 72-109)
Branch of law which prescribes the

method of enforcing the rights or
obtaining redress for their invasions
Remedial Law vs Substantive Law

Substantive Law
Remedial Law
Part of the law

which creates,
defines, or regulates
rights concerning
life, liberty, or
property or the
powers of agencies
or instrumentalities
for the
administration of
public affairs
Refers to the
legislation providing
means or methods
whereby causes of
action may be
effectuated, wrongs
redressed, and relief
obtained (adjective
law)
Makes vested rights

possible
Has no vested rights
Prospective in
application
Governs rights and

transactions which
took place
(retroactive)
Cannot be enacted
by SC
SC is expressly
empowered to
promulgate
procedural rules
3. Criminal Procedure (R110-R127)

4. Rules on Evidence (Rules 128-134)
What are the sources of Remedial

Law?
1. 1987 Constitution
2. BP 129 (Judiciary Reorganization Act
of 1980) as amended by RA7691
(Act expanding the jurisdiction of
MTCs, MuTCs, MCTCs
3. Rules of Court
4. Supreme Court Administrative
Matters and Circulars
5. Supreme Court decisions
6. New Civil Code
7. Family Code
8. Local Government Code (RA 7160),
particularly the Katarungang
Pambarangay Law
9. Special Laws and amendments
10. Rules of Procedure on Small Claims
11. Revised Manual of the Clerk of
Court
Differentiate: Civil Actions, Special

Proceedings, Criminal Actions
Main Divisions of Remedial Law:
Special
Proceedin
gs
Criminal
Procedure
Civil
Action

A remedy
by which a
party seeks
to establish
a status, a
right, or a
particular
fact (Rule 1
S3c)
The State
prosecutes
a person
for an act
or omission
punishable
by law
(Rule 1
S3b)
A
proceeding
wherein a
person is
prosecuted
by the
State for
acts or
omissions
committed
in violation
of penal
laws, and
to impose
the
correspondi
ng penalty
provided
for by
penal laws
Governed
by special
rules, and
in the
absence of
special
provisions,
the rules
provided
for in
ordinary
civil
actions
shall be, as
far as
practicable,
Governed
by the
Revised
Rules of
Criminal
Procedure
A party
sues
another for
the
enforcemen
t or
protection
of a right,
or the
prevention
or redress
of a wrong
A civil
action may
be ordinary
or special.
(R1 S3a)
apply
suppletory
(R72 S2)
May involve
only one
party
Involves
the State
against the
accused
Involves 2
or more
parties
Initiated by
petition
Initiated by
complaint
(but filed in
court by
Information
)
Initiated by
complaint,
or, in some
special civil
actions, by
petition
Except
Habeas
Corpus,
NOT based
on a cause
of action
Based on
an act or
omission
punishable
by law
Based on a
cause of
action
CONSTITUTIONAL PROVISIONS
Relating to CIVIL PROCEDURE
Both are
governed
by the
Rules for
ordinary
civil
actions,
subject to
specific
rules
prescribed
for a
special civil
action (R1
S3a)
A8 S1
Judicial Power shall be vested in one
Supreme Court and in such lower courts as
may be established by law.
Judicial Power includes the duty of the
courts of justice to settle actual
controversies involving rights which are
legally demandable and enforceable, and
to determine whether or not there is grave
abuse of discretion amounting to lack or
excess of jurisdiction on the part of any
branch or instrumentality of the
government.

What are those other Courts as may

be established by Law?
Certiorari
Prohibition
Mandamus
Quo warranto
Habeas corpus
Sandiganbayan
Family Courts (RA 8369)
Court of Tax Appeals
Sharia Court
A7 S4
A3 S1
No person shall be deprived of life, liberty,
or property without due process of law, nor
shall any person be denied the equal
protection of the laws.
The Supreme Court en banc shall be the

sole judge of all contests relating to the
election, returns, and qualification of the
President or Vice President, and may
promulgate its rules for the purpose.
A3 S9(Basis of Rule 67)
A7 S18
Private property shall not be taken for

public use without payment of just
compensation
The Supreme Court may review, in an

appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the
proclamation of martial law or the
suspension of the privilege of the writ or
the extension thereof, and must
promulgate its decision thereon within 30
days from its filing.
A6 S30
No law shall be passed increasing the
appellate jurisdiction of the SC as provided
in this Constitution without its advice and
concurrence.
A8 S5 P1
The Supreme Court shall have the following
powers:
-
Exercise original jurisdiction over

cases affecting:
o
Ambassadors
Other public ministers and

consuls
Over petitions for
A8 S5 P2(Basis of Rule 56)

-
Review
Revise
Reverse
Modify
Affirm
o
On appeal or certiorari, as
the law or the Rules of Court
may provide, final
judgments and orders of
lower courts in:

1. All cases in which constitutionality

or validity of any
5. all cases in which only an error or

question of law is involved
a. treaty,
A8 S5 P5 (basis of Rules of Court)
b. international or executive
agreement
The SC shall have the power to

promulgate rules concerning:
c. law
d. presidential decree
1. Protection and enforcement of

constitutional rights
e. proclamation
2. Pleading, practice, procedure in all

courts
f.
3. Admission to practice of law
order
g. instruction
4. Integrated Bar
h. ordinance
5. Legal assistance to the

underprivileged
i.
regulation
i. is in question
2. all cases involving the legality of

any
a. tax
b. impost
c. assessment
d. toll
e. any penalty imposed in
relation thereto
3. all cases in which the jurisdiction of

any lower court is in issue
4. all criminal cases in which the

penalty imposed is reclusion
perpetua or higher
Such rules shall (Limits to SC-rule

making power):
1. Provide simplified and inexpensive
procedure for speedy disposition of
cases
2. Shall be uniform for all courts of the
same grade
3. Shall not diminish, increase, modify
substantive rights.
Rules of procedure of special court and
quasi judicial bodies shall remain effective
unless disapproved by the SC
A8 S2
The Congress shall have the power to
define, prescribe, and apportion the
jurisdiction of the various courts but may
not deprive the SC of its jurisdiction over
cases enumerated in S5 thereof.

No law shall be passed reorganizing the

Judiciary when it undermines security of
tenure of its members.
A3 S16
Authority of the court to hear and

decide a case and to implement
its decision
Rule 30
All persons shall have the right to speedy

disposition of cases before before all
judicial, quasi judicial, administrative
bodies.
Rule 39
Venue
A8 S14(basis for Rule 36)
No decision shall be rendered by any court
without expressing therein clearly and
distinctly the facts and the law on which it
is based.
Each Commission shall decide by majority

of all its Members in any case or matter
brought before it within 60 days from date
of its submission for decision or resolution.
A case or matter is deemed submitted for
decision or resolution upon the filing of the
last pleading, brief, or memorandum
required by the rules of the Commission or
by the Commission itself. Unless otherwise
provided by this Constitution or by law, any
decision, order, or ruling of each
Commission may be brought to the SC on
certiorari by the aggrieved party within 30
days from receipt of a copy thereof.
CIVIL PROCEDURE PROPER

Jurisdiction
Jurisdiction
Place where action

is instituted
Power of court to
hear and decide a
case
May be waived
Jurisdiction over
subject matter and
over nature of
action are conferred
by law and cannot
be waived
Procedural
Substantive
May be changed by
written agreement
of the parties
Cannot be subject of
the agreement of
the parties
Not a ground for

motu proprio
dismissal, except in
Summary Procedure
A ground for motu

proprio dismissal
No petition for review or motion for

reconsideration of a decision of the court
shall be refused due course or denied
without starting the legal basis therefor.
A9A S7 (basis of Rule 64)
Rule 36
General Jurisdiction
Power to adjudicate all
controversies except those
expressly withheld from the plenary
powers of the court.
It extends to all controversies which

may be brought before a court
within the legal bounds of rights
and remedies.

Original Jurisdiction
Special or Limited Jurisdiction
One which restricts the courts
jurisdiction only to particular cases
and subject to such limitations as
may be provided by the governing
law.
It is confined to particular causes, or

which can be exercised only under
the limitations and circumstances
prescribed by the statute
Appellate Jurisdiction
Power and authority conferred upon
a superior court to rehear and
determine causes which have been
tried in lower courts, the cognizance
which a superior court takes of a
case removed to it, by appeal or
writ of error, from the decision of a
lower court or the review by a
superior court of the final judgment
or order of some lower courts
Concurrent / Confluent /
Coordinate Jurisdiction
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
Power of the court to take judicial

cognizance of a case instituted for
judicial action for the first time
under conditions provided by law
and appellate jurisdiction, or the
authority of a court higher in rank to
re-examine the final order or
judgment of a lower court which
tried the case or elevated for
judicial review. It is jurisdiction
conferred upon or inherent in the
first instance
Jurisdiction conferred by law and

filed at the first instance (NOTE: all
civil actions)
Exclusive Jurisdiction
Power to adjudicate a case or
proceeding to the exclusion of all
other courts at that stage
Jurisdiction of the court to the

exclusion of all other courts
Exclusive Original Jurisdiction

Power of the court to take judicial
cognizance of a case instituted for
judicial action for the first time to
the exclusion of all other courts
Territorial Jurisdiction
E.g. CA, SC, Sandiganbayan, RTC- in
HC cases, Writ of Amparo, Writ of
Habeas Data
Refers to geographical area within

which the courts powers can be
exercised

In civil cases, assumes importance

in case of venue of real or mixed
action
courts shall not take cognizance of

a case unless it has been decided at
the administrative level
In criminal cases, consideration of

territory and locus of crime
determine venue and jurisdiction
Coordinate Jurisdiction
Territorial jurisdictions:
SC and CA
National
RTC
Regional jurisdiction
(same as Concurrent Jurisdiction)

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
Inferior courts
Territorial jurisdiction as defined by
SC in BP129
*Power of tribunal considered with
reference to the territory within which it is
to be exercised.
Delegated Jurisdiction
The grant of authority to inferior
courts to hear and determine
cadastral and land registration
cases under certain conditions
Ancillary Jurisdiction
Power of the courts to settle issues
which are incidental to main issue
Appeal by
Certiorari
Rule 45
Rule 65
Petition is based on
questions of law
Petition is based on
questions of
jurisdiction, whether
the lower court
acted without
jurisdiction or in
excess of jurisdiction
or with grave abuse
of discretion
Mode of appeal
Mode of review /
SPECIAL CIVIL
ACTION
Involves review of
the judgment award
or final order on the
merits
Directed against
interlocutory order
of the court or
where there is no
appeal or any plain,
Doctrine of Primary Jurisdiction

courts will not resolve a controversy
involving a question which is within
the jurisdiction of an administrative
tribunal, especially where the
question demands the exercise of
sound administrative discretion
requiring special knowledge and
experience of said tribunal in
determining technical and intricate
matters of fact
Petition for
Certiorari

speedy, or adequate
remedy
Filed within 15 days
from notice of
judgment, final
order, or resolution
appealed from
Filed not later than

60 days from notice
of judgment, order,
or resolution sought
to be reviewed
Stays judgment or
final order appealed
from
Unless a writ of
preliminary
injunction or
temporary
restraining order is
issued, the petition
does not stay the
challenged
proceeding
filed with the

Supreme Court
with the RTC, CA,

Sandiganbayan,
Comelec
JURISDICTION
SUPREME COURT
Original Jurisdiction of the Supreme
Court:
A8 S5 P1- (Rule 56)
The SC shall have exclusive original
jurisdiction over cases involving:
1. Ambassadors
2. Other public ministers and consuls
Appellant and
appellee are original
parties to the action,
and the lower court
or quasi judicial
agency is not
impleaded
Motion for
reconsideration is
not required
Judge, court, quasi

judicial agency,
tribunal,
corporation, board
or officer or person
are public
respondents who
are impleaded in the
action
Motion for
reconsideration or
for new trial is
required; if a motion
for reconsideration
or new trial is filed,
the period shall not
only be interrupted
but another 60 days
shall be given to
petitioner (SC Admin
Matter 02-03)
Court is in exercise
of its appellate
jurisdiction and
power of review
Court exercises
original jurisdiction
Petition shall be
Petition shall be filed
3. Over petitions for:
a. Certiorari
b. Prohibition
c. Mandamus
d. Quo warranto
e. Habeas corpus
Appellate Jurisdiction of the Supreme

Court:
A8 S5 P2
The SC may review, revise, reverse,
modify, or affirm on appeal or certiorari, as
the law or the Rules of Court may provide,
final judgments and orders of lower courts
in:
1. All cases in which the
constitutionality or validity of any
treaty, internation or executive
agreement, law, presidential

decree, proclamation, order,

instruction, ordinance, or regulation
is in question
2. All cases involving the legality of

any tax, impost, assessment or toll,
or any penalty imposed in relation
thereto
R45 S1- a party desiring to appeal by

certiorari from a judgment or final order or
resolution of the Court of Appeals may file
with the SC a verified petition for review on
certiorari. The petition shall raise only
questions of law which must be distinctly
set forth.
Note that questions of law can be raised

before the CA (BP129)
3. All cases in which the jurisdiction of
COURT OF APPEALS
4. All criminal cases in which the

perpetua or higher (WITHIN THE
SCOPE OF CRIMINAL PROCEDURERULE 45)
5. All cases in which only an error or

question of law is imposed
1 and 2- PURE QUESTIONS OF LAW
Administrative Supervision of the

Supreme Court:
Original jurisdiction / Original

Concurrent Jurisdiction
Original jurisdiction to issue writs of:
-
Mandamus
Prohibition
Certiorari
Habeas corpus
Quo warranto
Auxiliary writs and processes,

o
Whether or not in aid of its

appellate jurisdiction
1. Over court personnel

2. Over Justices
3. Over Judges
4. Practice of Law
Exclusive Original Jurisdiction:

Exclusive original jurisdiction over
the actions for annulment of
judgments of RTCs
5. Members of the Integrated Bar

Appellate Jurisdiction:
CA decisions
-
Appealable to SC under Rule 45
1. Rule 41- over RTC decisions in the

exercise of its ORIGINAL
JURISDICTION (via Notice or Record
of Appeal)

RTC jurisdiction, first instance,

including Special Civil Actions
2. Rule 42- over RTC decisions in the

exercise of its APPELLATE
JURISDICTION (via Petition for
Review)
3. Rule 43- Exclusive appellate

jurisdiction over all final judgments,
resolution, orders, or awards of
quasi judicial agencies,
instrumentalities, boards, or
commissions (via Petition for
Review)
RTC
Exclusive Original Jurisdiction:
1. In all actions in which the subject of
litigation is incapable of pecuniary
estimation
2. Actions which cannot be quantified

into monetary estimation
4. In all actions in admiralty and

maritime actions where demand or
claim exceeds 300k OMM or
exceeds 400k MM
5. In all matters of probate, testate or

intestate, where gross value of
estate exceeds 300k OMM or
exceeds 400k MM
Gross value- assessed value of property of
deceased before deduction (NOT market
value)
6. In all actions involving the contract

of marriage and marital relations
7. In all cases not within the exclusive

jurisdiction of any court, tribunal,
person or body exercising
jurisdiction of any court, tribunal,
person or body exercising judicial or
quasi judicial functions
(refer to 902-A below)
Subject matter (BP129)
3. In all civil actions which involve title

to or possession of real property or
any interest therein, where
assessed value of property involved
exceeds 20k OMM or in MM, value
of property involved exceeds 50k
Except actions of FE and UD of
lands and buildings, original
jurisdiction of which is conferred
with MTC, MuTC, MCTC
8. In all civil actions and special

proceedings falling within Exclusive
original jurisdiction of a Juvenile and
Domestic Relations Court and of the
Court of Agrarian Relations as now
provided by law
9. In all other cases in which the

demand, exclusive of interest,
damages of whatever kind,
attorneys fees, litigation expenses,
10

and costs or the value of property in

controversy exceeds 300k OMM or
exceeds 400k MM
1996 Bar- Gross value is 200k, property
located in Pampanga. What is the
jurisdiction and venue?
MTC of the place of decedents actual
residence at the time of his death, if a
resident of the Philippines. If a non
resident, then the MTC of the place where
his estate is located.
(RA8799 S5.2 as amended by PD902-A)exclusive and original jurisdiction of the

RTC to hear and decide following cases:
1. Cases involving devices or schemes

employed by or any acts of the
board of directors, business
associates, its offices or
partnership, amounting to fraud or
misrepresentation which may be
interest of the public and/or of the
stockholders, partners, members of
associations or organizations
registered with the Commission
2. Controversies arising out of

intracorporate or partnership
relations, between and among
stockholders, members or
associates, between any and all of
them and the corporation,
partnership, or association of which
they are stockholders, members or
associates respectively, and
between such corporation,
partnership or association and the
state insofar as it concerns their
individual franchise or right to exist
as such entity
3. Controversies in election or
appointment of directors, trustees,
officers or managers of such
corporations, partnerships, or
associations
4. Petitions of corporations,
partnerships or associations to be
declared in the state of suspension
of payments, in cases where the
corporation, partnership or
association possesses sufficient
property to cover all its debts but
foresees the impossibility of
meeting them when the
respectively fall due or in cases
where the corporation, partnership
or association has no sufficient
assets to cover its liabilities, but is
under management of a
rehabilitation receiver or
management committee
Concurrent Original Jurisdiction:

With SC, CA, -- over petitions for certiorari,
mandamus, prohibition, quo warranto,
habeas corpus
Appellate Jurisdiction:
Over all cases decided by MTCs, MuTCs,
MCTCs in their respective territorial
jurisdictions
MTC
(note: baligtarin ang RTC jurisdiction, below
20-50, 300-400)
Ordinary Civil Actions:
11

1. exclusive original jurisdiction over

civil actions and probate
proceedings, testate and intestate,
including grant of provisional
remedies in proper cases, where the
value of the personal property,
estate or amount of the demand
does not exceed 300k OMM or 400k
MM exclusive of interest, damages,
of whatever kind, AF, litigation
expenses and costs, the amount of
which must be specifically alleged.
Provided, that interest, damages of
whatever kind, AF, litigation
expenses, and costs shall be
included in the determination of the
filing fees. Provided further that
where there are several claims or
causes of actions between the same
or different parties, embodied in the
same complaint, the amount of
demand shall be the totality of the
claims in all the causes of action,
irrespective of whether the cause of
action arose out of same or
different transactions
2. exclusive original jurisdiction over

cases of forcible entry or unlawful
detainer, provided that when, in
such cases, defendant raises
questions of ownership in his
pleadings and the question of
possession cannot be resolved
without deciding the issue of
ownership, the issue of ownership
shall be resolved only to determine
the issue of possession (see:
Summary Procedure)
3. exclusive original jurisdiction in all

civil actions involving title to or
possession of property or any
interest therein where assessed
value of property or interest therein
does not exceed 20k OMM or does

not exceed 50k MM exclusive of
interest, damages of whatever kind,
AF, litigation expenses, costs.
Provided that in cases of land not
declared for taxation purposes, the
value of such property shall be
determined by assessed value of
adjacent lots
4. civil cases where the demand does

not exceed 300k or not more than
400k MM
5. over actions involving personal

property valued at not more than
300k OMM or not more than 400k
MM
6. admiralty and maritime cases

where the demand or claim does
not exceed 300k OMM or does not
exceed 400k MM
Summary Procedure:
1. All cases of FE and UD, irrespective
of the amount of damages or
unpaid rentals sought to be
recovered. Where AF are awarded,
the same shall not exceed 20k
2. All other civil cases, except probate

proceedings, where the total
amount of the plaintiffs claim does
not exceed 100k OMM or 200k MM
exclusive of interests and costs (as
amended by AM 2-11-9-SC)
12

3. Civil cases not higher than 100kSubject to the Rule on Small Claims
By filing of original complaint in

court plus payment of requisite
docket fees
What if, gumitna? 150k?

Higher than 100k OMM, then subject to
Regular Proceedings in MTC
Jurisdiction over defendant

By voluntary appearance or service
of summons
BUT, below 200k MM, hence, in such case,

subject to Summary Procedure pa rin
Jurisdiction over subject matter

Why the need to discuss jurisdiction?
To know whether subject to Motion to
Dismiss (Rule S1b), that the court has no
jurisdiction over the subject matter of the
case
Conferred by law
Jurisdiction over the issue

Determined by allegations in the
complaint
In Civil Procedure, SC-CA-RTC-MTC

In Criminal Procedure, SC-CASANDIGANBAYAN-RTC-MTC
Jurisdiction over the res

By actual or constructive seizure of
property by way of attachment or
execution
Commencement of a Civil Action:

R1 S5
Civil action is commenced by the filing of
the original complaint in court and
payment of the requisite docket fees. If an
additional defendant is impleaded in a later
pleading, the action is commenced with
regard to him on the date of filing of such
later pleading, irrespective of whether the
motion for its admission, if necessary, is
denied by the court.
Action, Cause of Action, Right of Action

(Simplified Version)
Action
Cause of
Action
Right of
Action
Suit to
enforce
ones right
or for the
prevention
or redress of
a wrong
Act or
omission by
which a
party
violates a
right of
another
Remedial
right to file a
suit based
on cause of
action
DOCKET FEES- needed to acquire

jurisdiction over the case
Original Distinctions:
Jurisdiction over plaintiff
Action
Cause of
Right of
13

Suit filed in
court for
enforcemem
t or
protection of
a right, or
the
prevention
or redress of
a wrong (R1
S3)
Action
Action
Act or
omission by
which a
party violate
a right of
another (R2
S2)
Remdial
right or right
to relief
granted by
law to a
party to
institute an
action
against a
person who
has
committed
delict or
wrong
against him
Reason for
the action
Remedy or
means
afforded or
the
consequent
relief
Formal
statement of
operative
facts that
give rise to a
remedial
right
Remedial
right given
to a person
because of
occurrence
of the
alleged facts
Matter of
procedure
and depends
on the
pleadings
filed by the
parties
A matter of
right and
depends on
substantive
law
Not affected
by
affirmative
defenses
(fraud,
prescription,
estoppel,
etc)
Affected by
affirmative
defenses
Kinds of actions:
1ST GROUP: for purposes of venue under
Rule 4
Real Action
-
Actions affecting title to or

possession of real property (A415
NCC in consideration)
Venue: R4 S1
Personal Action
Involves privity of contract/personal

property (A416-417 of NCC in
consideration)
Venue: R4 S2
Mixed Action
Action affecting title to or

possession of real property + Privity
of Contract
Venue: R4 S1
2ND GROUP: for purposes of determining

jurisdiction/service of summons
Action In Rem
-
Action which binds the whole world

Note: all Special Proceedings are in
rem actions
14

Summons/notification by
PUBLICATION
directly
particular
property to
an obligation
or lien
burdening it
Judgment is
binding on
the whole
world
Judgment is
bonding only
upon the
parties
impleaded
or their
successors
in interest
Judgment is
binding upon
particular
persons
Examples:
Examples:
Examples:
Probate
proceeding,
Action for
specific
performance
Action for
partition
Action in Personam
-
Action which binds the parties
Action Quasi In Rem

-
Action which binds interests

o
Foreclosure of mortgage
Partition
Attachment
Any interest or lien on real

property
cadastral
proceeding,
Action for
breach of
contract
Action to
foreclose
real estate
mortgage
Real Action
Personal
Action
Mixed
Action
Ownership
or
possession
of real
property is
involved
Personal
property is
sought to be
recovered or
where
damages for
breach of
contract are
sought
Both real
and personal
properties
are involved
Founded on
privy of real
estate
Founded on
privity of
contract
Founded on
both
Filed in the
Filed in the
Filed in the
Action in
rem
Action in
personam
Action
Quasi in
Rem
Directed
against the
thing itself
Directed
against
particular
persons
Directed
against
particular
persons
special
proceedings
Jurisdiction
over person
of defendant
is not
required
Jurisdiction
over person
of defendant
is required
Jurisdiction
over the
person of
the
defendant is
not required
as long as
jurisdiction
over the res
is acquired
A
proceeding
to determine
the state or
condition of
a thing
An action to
impose a
responsibilit
y or liability
upon a
person
A proceeding
to subject
the interest
of a named
defendant
over a
15

court where
the property
or any part
thereof is
situated (R4
S1)
court where
the plaintiff
or any of the
plaintiffs
resides,
where
defendant or
any of the
defendants
resides, or in
case of non
resident
defendant,
where he
may be
found, at
election of
plaintiff (R4
S2)
court where
the property
or any part
thereof is
situated (R4
S1)
Example:
Example:
Example:
Accion
reivindicatori
a
Action for a
sum of
money
Accion
publiciana
with a claim
for damages
Personal Action
Action in
personam
Personal property is
sought to be
recovered or where
damages for breach
of contract are
sought
An action directed
against particular
persons, may be
real action, personal
action, mixed action
Founded on privity
of contract
Not necessarily;
because the action
may also be real or
mixed
Filed in court where

plaintiff or any of
defendants reside,
at option of plaintiff
R4 S1 or R4 S2 may
govern, depending
on whether the
action is real action
(R4 S2)
or personal action
Mixed Action
Quasi In Rem
Action
Both real and

personal properties
are involved
Both real and

personal properties
may also be
involved
Founded on both
privity of real estate
and privity of
contract
Action directed
against particular
persons, but
jurisdiction over
defendant is not
required as long as
jurisdiction over the
res is acquired
Rules on venue of
real actions shall
govern (R4 S1)
Rules on personal
actions govern (?)
Real Action
In rem action
Ownership or
possession of real
property is involved
Action directed
against the thing
itself
Filed in court where

property or portion
thereof is situated
Not necessarily;
depends on whether
the action is real,
personal, mixed
A proceeding
founded on privity of
real estate
A proceeding to
determine state or
condition of a thing
Judgment may bind

whole world, or
particular persons,
depending on
whether in rem, in
personam, quasi in
rem
Judgment is binding
upon the whole
world
16

PLEADING (R6 S1)

Sworn written statements of the
respective claims and defenses of
the parties submitted to the court
for appropriate judgment
Complaint (R6 S3)

The complaint is the pleading
alleging the plaintiffs cause or
causes of action.
Answer (R6 S4)

Pleading in which a defending party
sets forth his defenses
INITIATORY PLEADING
A pleading that initiates an action
RESPONSIVE PLEADING
A pleading that responds to
allegations in the adverse partys
pleading
Initiatory Pleadings
Original complaint
In special civil actions

In special proceedings
Counter counter claim
Counter cross claim
Counter Counter
Claim
Counter Cross
Claim
Any claim which

defending party in a
counterclaim may
have against the
original
counterclaimant
Any claim which a

defending party in a
cross claim may
have against the
original cross
claimant
COMPULSORYArises out of or is
necessarily
connected with the
transaction or
occurrence that is
the subject matter
of the opposing
partys claim
Can be an initiatory
pleading, if
permissive
PERMISSIVE- does
not arise of or is
necessarily
connected with the
transaction or
occurrence that is
the subject matter
of the opposing
partys claim
Permissive counterclaim
Cross claim
Third party complaint
4th party complaint
Complaint in intervention
Petition
Responsive Pleadings
Answer to original complaint

Answer to permissive counterclaim
17

Answer to third party complaint

Answer to fourth party complaint
counterclai
m
Answer to
permissive
counterclaim
Answer to complaint in intervention

Comment or objection to petition
Cross claim
Compulsory counterclaim
Third party
complaint
Reply
Answer to counter counter claim
Answer to counter cross claim
4th party
complaint
A motion IS NOT A PLEADING

A position paper IS NOT A PLEADING
A memorandum IS NOT A PLEADING
Complaint
in
interventio
n
Answer to third
party
complaint
Answer to
fourth party
complaint
Answer to
complaint in
intervention
Why?
Motion is an application for relief other
than by a pleading (R15 S1)
Position Paper and Memorandum only
narrate facts of the case, issues, no cause
of action, no defenses, but only contain
discussions
Initiatory
Pleading
Responsive
Pleading
A pleading that
initiates an action
A pleading that
responds to
allegations in the
adverse partys
pleading
Original
complaint
Permissive
Answer to
original
complaint
Petition
In special civil
actions
In special
proceedings
Counter
counter
claim
Counter
cross claim
Need to be
verified, with
Comment or
objection to
petition
Compulsory
counterclaim
Reply
Answer to
counter
counter claim
Answer to
counter cross
claim
Except when
otherwise provided by
18

certification
against forum
shopping, plus
payment of docket
fees
law or these Rules,

need not be verified
No need for
certification against
forum shopping, and
not need for payment
of docket fees (Note:
compulsory
counterclaim, docket
fees are suspended)
Instances when
verification is needed:
Actionable
document
I.
BARANGAY CONCILIATION
PROCEEDINGS
General Rule with respect to Barangay

Conciliation Proceedings:
S412, LGC
No complaint, petition, action or
proceedings involving any matter within
authority of the Lupon shall be filed or
instituted directly or indirectly in court or in
any other government office or
adjudication unless there has been a
confrontation between the parties before
the Lupon Chairman or the pangkat, and
that no conciliation or settlement has been
reacehed as certified by lupon or pangkat
chairman.
Exceptions to above rule:

S408, LGC
Allegations of
usury
Answer to
permissive
counterclaim
Succeeding
pleadings in
special
proceedings
Complaint- a pleading alleging plaintiffs

cause and causes of action
FLOW OF CIVIL PROCEDURE
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 performance of his official
functions
offenses punishable by
imprisonment exceeding 1 year or a
fine exceeding 5k pesos
3. offenses where there is no private

offended party
4. where the dispute involves real

properties located in different cities
or municipalities unless the parties
19

thereto agree to submit their

differences to amicable settlement
by an appropriate lupon
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. such other classes of disputes which

the President may determine in the
interest of justice
7. where one of the parties is a

juridical entity
8. where accused is under police

custody or detention
9. where the person has otherwise

been deprived of personal liberty
calling for habeas corpus
proceeding
10. where the actions are coupled with

provisional remedies such as
preliminary injunction, attachment,
delivery of personal property, and
support pendent lite
where the action may otherwise be
barred by the statute of limitations
12. action to annul a judgment upon a

compromise
13. CARL disputes
14. Disputes involving traditions of an

indigenous cultural community
Does the Exclusive Original

Jurisdiction of the RTC on actions
involving those incapable of pecuniary
estimation include provisional
remedies as falling within the
category?
No, because provisional remedies are
merely ancillary to the main action. The
category of actions incapable of pecuniary
estimation refers only to main actions.
Purpose of Barangay Proceedings:

Reduce the number of litigations and
prevent the deterioration of the quality of
justice which has been brought about by
indiscriminate filing of cases in the courts.
(Zamora vs Heirs of Izquierdo)
Venue of Barangay Conciliation

Proceedings:
S409, LGC
Disputes between persons
actually residing in the same
barangay shall be brought for
amicable settlement before the
lupon of said barangay
11. in case of labor disputes
20

Those involving actual residents

of different barangays within
the same city or munipality shall
be brought in the barangay where
the respondent or any of the
respondents actually resides, at the
election of the complainant
All disputes involving real

property or any interest therein
shall be brought in the barangay
where the real property or the
larger portion thereof is situated
Those arising at the workplace

where the contending parties
are employed or at the
institution where such parties
are enrolled for study, shall be
brought in the barangay where such
workplace or institution is located
Rules on appearance before Barangay

Proceedings:
S415, LGC
In all katarungang pambarangay
proceedings, the parties must appear in
person without the assistance of counsel or
representative, except for minors and
incompetents who may be assisted by their
next of kin who are not lawyers.
Effect of Amicable Settlement and

Arbitration Award:
S416, LGC
The amicable settlement and arbitration
award shall have the force and effect of a
final judgment of a court upon the
expiration of 10 days from the date
thereof, unless repudiation of the

settlement has been made or a petition to
nullify the award has been filed before the
proper city or municipal court.
However, this provision shall not apply to
court cases settled by the lupon under last
paragraph of S408 of this Code, in which
case the compromise settlement agreed
upon by the parties before the lupon shall
be submitted to the court and upon
approval thereof, have the force and effect
of a judgment of said court.
Rules on execution of judgment in

Barangay Proceedings:
S417, LGC
The amicable settlement or arbitration
award may be enforced by execution by
the lupon within 6 months from the date of
the settlement. After the lapse of such
time, the settlement may be enforced by
action in the appropriate city or municipal
court.
Remedies of the parties in case of

failure of amicable settlement before
the lupon:
1. File the case before the proper
court
2. Repudiate the agreement (S418,
LGC)
3. File a petition before the MTC to
nullify the agreement (basis?)
Remedy in case of failure to comply

with Barangay Conciliation:
As defendant, file a motion to dismiss
under R16 S1j on the ground that a
21

condition precedent has not been complied

with.
Motion to dismiss was granted,

remedy of plaintiff?
There is need to register it

with the register of deeds
II. COMPLAINT
Complaint (R6 S3)
Re file the case with the certification of

having undergone Barangay conciliation
proceedings, as the dismissal is without
prejudice.

causes of action.
Motion to dismiss was denied, remedy

of defendant?
Undergone Barangay
Conciliation Proceedings
R16 S4 states that if the motion is denied,

movant shall file his answer within the
balance of the period granted by Rule 11 to
which he was entitled at the time of
serving his motion, but not less than 5 days
in any event, computed from his receipt of
the notice of the denial. Proceed with the
trial, and when the decision is adverse, file
an appeal raising as error the ground for
denial of the motion to dismiss. When the
denial is tainted with grave abuse of
discretion amounting to lack or excess of
jurisdiction, file petition for certiorari under
Rule 65.
NOTE: If the case undergone Barangay

conciliation proceedings first, there must
be a specific allegation in the complaint
that there is compliance with Barangay
Conciliation proceedings
** In between Barangay conciliation

and filing of complaint, if real
property is involved, plaintiff can file
adverse claim over the property, or
can file notice of lis pendens
Granted- Refile
Notice of Lis Pendens
Summary Procedure:
buyer beware
Notice to buyer of existence of an

adverse claim
o
It is not a pleading
Pag wala, patay (?)- M2D S1j OR amend the

complaint (?)
Jurisdiction
IF, court has no jurisdiction, M2D R16 S1b
(importance of knowing BP129 as amended
by RA7691 Rules on Jurisdiction)
Denied- State R16 S4 (yung BUONG SAGOT

na Gusto ni Boss Atty Tan)
Cases covered:
1. All cases of FE and UD, irrespective
of the amount of damages or
unpaid rentals sought to be
recovered. Where AF are awarded,
the same shall not exceed 20k
22

2. All other civil cases, except probate

proceedings, where the total
amount of the plaintiffs claim does
not exceed 100k OMM or 200k MM
exclusive of interests and costs (as
amended by AM 2-11-9-SC)
3. Civil cases not higher than 100kSubject to the Rule on Small Claims
Can be subject to stipulation of the

parties
State: Rules on venue

R4 S1
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.
GENERAL RULE on Summary Procedure: No

Motion to Dismiss is allowed (Prohibited
Pleading)
Forcible entry and unlawful detainer

actions shall be commenced and tried in
the MTC of the municipality or city wherein
the real property involved or a portion
thereof is situated.
EXCEPT:
R4 S2
1. Lack of jurisdiction over the subject

matter of the claim
2. Lack of jurisdiction over the person

of the defendant
All other actions may be commenced and

tried where the plaintiff or any of the
principal plaintiffs resides, where the
defendant or any of the defendants
resides, or in case of a non resident
defendant he may be found at the election
of the plaintiff.
R4 S3
3. Failure to comply with Barangay

HOWEVER, with respect to SMALL CLAIMS

CASES,
ABSOLUTE RULE: motion to dismiss is not
allowed
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
Reason: defeats the purpose of Small

Claims Proceedings
EXCLUSIVITY OF VENUE- NOTE: Rule 4
SHALL NOT APPLY... if
Venue
R4 S4
1. The parties have validly agreed in
writing
23

2. The agreement in writing was made

before the filing of the action
3. Exclusive venue is stipulated
Atty Tans comment:
Rule 4 of the Rules of Court did not provide
for MAY, but SHALL
Suppose, Real property is subject of
dispute (real action). A lives in Pasay, B
lives in Manila, the real property is located
in Davao. Following Rule 4 S1, the suit
should be filed in Davao, being the place
where the property or portion thereof is
situated. However, the parties can
exclusively agree that the venue can be
filed in Baguio, provided that the requisites
of R4 S4 as to exclusivity of venue are
complied with
So, it means that Rule 4 S1 can be the
subject of agreement, and that the suit can
be filed somewhere else other than what
S1 provides? (Parang ok lang sana kung
concern e personal action under R4 S2- can
be subject of agreement, pero venue of
REAL ACTION CAN BE SUBJECT OF
AGREEMENT?! Labo ata...)
Seems there is a loophole in Rule 4
If the venue is permissive,

Then the venue is in addition to the
rules on venue
Action was filed in the wrong venue:

I will file motion to dismiss under R16 S1c
on the ground that the venue is improperly
laid
The motion was granted (court issues

not a judgment but an ORDER).
Counsel for plaintiff. Remedy?
I will refile the case in the court of the
proper venue, because the order of
dismissal is without prejudice (R16).
EXCEPT: if there exists grave abuse of
jurisdiction, Certiorari Rule 65 is the proper
remedy
Motion to dismiss was denied.

Remedy for defendant?
Rule 16 S4
File an answer within the balance of the
period prescribed by Rule 11 to which he
was entitled at the time of serving his
motion but not less than 5 days in any
event, computed from his receiving of
notice of denial. Then, go to trial. When
the decision is adverse, file an appeal
raising as error the denial of the motion to
dismiss.
If the denial of the motion is
tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction,
file petition for certiorari under Rule 65.
Motion to dismiss on the ground of

improper venue IS A PROHIBITED
PLEADING under the Rules on Summary
Procedure, and more so in Small Claims
Remedy: raise the ground as an
affirmative defense
Parties
(R3 S1)
Only natural or juridical persons, or entities
authorized by law may be parties in a civil
24

action. The term plaintiff may refer to the

claiming party, the counterclaimant, cross
claimant, or the 3rd 4th etc party plaintiff.
The term defendant may refer to the
original defending party, the defendant in
the counterclaim, the cross defendant, or
the 3rd 4th etc party defendant.
Plaintiff includes:
-
Counter counterclaimant
Counter cross claimant
respect of his opponents claim (R6

S11)
Cross Claimant
A party to an original action who
has a claim against a co party
arising out of the transaction or
occurrence that is the subject
matter either of the original action
or of a counterclaim therein (R6 S8)
Defendant includes:
-
Defendant in counter counterclaim
Defendant in counter cross claim
An unwilling co plaintiff or one who

should be joined as plaintiff but
refuses to give consent thereto (R3
S10)
A person necessary to a complete

determination or settlement of the
questions involved therein
Real Party In Interest

A real party in interest is 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. Unless otherwise provided
by law or these rules, every action
must be prosecuted or defended in
the name of the real party in
interest(R3 S2)
Plaintiff
A person having an interest in the
matter of the action or in obtaining
the relief demanded
Defendant
A person claiming an interest in the
controversy or the subject thereof
adverse to the plaintiff
Indispensable Party
An indispensable party is a party in
interest without whom no final
determination can be had of an
action who shall be joined either as
plaintiff or defendant (R3 S7)
Necessary Party
3rd party plaintiff
A defending party who may with
leave of court file against a third
person not party to the action called
the 3rd 4th etc party defendant a
claim for contribution, indemnity,
subrogation, or any other relief in
A necessary party is a party who is

not indispensable but who ought to
be joined as a party if complete
relief is to be accorded as to those
already parties, or for a complete
determination or settlement of the
claim subject of the action (R3 S8)
25

Who is a proper party?

A proper Party is the same as a necessary
party, a party who is not indispensable but
who is ought to be joined as a party if
complete relief is to be accorded as to
those already parties, or for a complete
determination or settlement of the claim
subject of the action (R3 S8)
Party those presence is necessary to
adjudicate the whole controversy, but
those whose interests are so far separable
that final decree can be made in their
absence
without
affecting
them
(Quisumbing vs CA GR 93335 9/13/1990)
Parties who are required to be joined as co

parties in suits by or against another party
as may be provided by the applicable
substantive law or procedural rule
EXAMPLE: Spouses- husband and wife shall
sue or be sued jointly, except as provided
by law (R3 S4)
Quasi Party
Parties in whose behalf a class or
representative suit is brought
Not a real party in interest: Remedy?

Representative party
R3 S3
Party acting in a fiduciary capacity. The
beneficiary shall be included in the title of
the case and shall be deemed to be the
real party in interest. It may be:
-
Trustee of an express trust
Guardian
Executor
Administrator
A party authorized by law or these

rules
o
(agent acting in his own

name and for the benefit of
an undisclosed principal may
sue or be sued without
joining the principal except
when the contract involves
things belonging to the
principal)
MOTION TO DISMISS on the ground of

failure to state cause of action
Granted- refile
Denied:
I will file an answer within the balance of
the period prescribed by Rule 11 to which i
am entitled at the time of serving my
motion, but not less than 5 days in any
event, computed from my receipt of notice
of denial. Then, proceed with the trial. In
case of adverse decision I will appeal the
judgment and assign as error the denial of
the motion to dismiss.
However, if the denial is tainted with GAD
then I will file petition for certiorari under
Rule 65.
JOINDER OF PARTIES
Requisites:
1. Right to relief arises out of the same
transaction or series of transactions
Pro Forma Party
26

2. Jurisdiction over plaintiffs and

defendants can be obtained
3. There is question of law or fact

common to all plaintiffs or
defendants
4. Such joinder is not otherwise

proscribed by the provisions of the
rules on jurisdiction and venue
R3 S6
All persons in whom or against whom any
right to relief in respect to or arising out of
the same or series of transactions is
alleged to exist, either jointly, severally, or
in the alternative, may, except as
otherwise provided in these rules, join as
plaintiffs or be joined as defendants in one
complaint, where any question of law or
fact common to all such plaintiffs or to all
such defendants may arise in the action;
but the court may make such orders as
may be just to prevent any plaintiff or
defendant from being embarrassed or put
to expense in connection with any
proceedings in which he may have no
interest.
Non joinder/Misjoinder of parties- not a

ground for motion to dismiss
IF so, remedy:
Amendment of the pleading (Rule 3 in
relation to Rule 10
Cause of Action
Act or omission by which a party

violates a right of another (R2 S2)
What are the elements of a cause of

action?
1. Plaintiff exercises a legal right
2. Correlative obligation the part of
defendant to respect plaintiffs legal
right
3. Defendant violates plaintiffs legal
right in a manner contrary to law,
morals, good customs, public order,
public policy
*STATE ALL CAUSES OF ACTION in the
PLEADING!
IF NOT, remedy:
M2D R16 S1g- failure to state cause of
action
GRANTED: refile; amend pleading
Denied:
Rule 65.
Joinder of Causes of Action (R2 S5)

A party may in one pleading assert, in the
alternative or otherwise, as many causes of
27

action as he may have against an opposing

party, subject to the following conditions:
joinder shall be allowed in the RTC

provided that it falls within the
jurisdiction of said court and the
venue lies therein
A. That the party joining the causes of

action shall comply with the rules
on joinder of parties
B. The joinder shall not include special

civil actions and actions governed
by Special Rules
D. Where the claims in all causes of

action are principally for recovery of
money, the aggregate amount
claimed shall be the test of
jurisdiction
Special Civil Actions:

1. Interpleader (R62)
2. Declaratory Relief (R63)
3. Review of Judgments and Final
orders or resolutions of COMELEC,
CoA (R64)
4. Certiorari, Prohibition, Mandamus
(R65)
If you are counsel for plaintiff, and the

causes of action are not joined,
remedy?
File a motion to amend the complaint (as a
matter or right before a responsive
pleading is filed, or with leave of court after
a responsive pleading is filed if the
amendment is substantialHere, di ko
alam kung substantial to...) R10 S2 and 3
5. Quo Warranto (R66)

6. Expropriation (R67)
Splitting a Single Cause of Action:
7. Foreclosure of Real Estate Mortgage

(R68)
It is the act of dividing or indivisible

cause of action into several causes
of actions and bringing several
actions thereon
8. Partition (R69)
9. Forcible Entry and Unlawful
Detainer (R70)
10. Contempt (R71)
R2 S3
INCLUDES: SPECIAL PROCEEDINGS

(SEGTARHHCVJCDC +)
A party may not institute more than one

suit for a single cause of action
Sum of money + Foreclosure of Mortgage

= CANNOT BE JOINED! (latter is a special
civil action)
R2 S4
Hence, sue in alternative / either or
C. Where the claims pertain to

different venues or jurisdictions, the
If 2 or more suits are instituted on the basis

of the same cause of action, the filing of
one or a judgment upon the merits in any
one is available as a ground for dismissal of
the others.
28

Supposing, the plaintiff split a single

cause of action, remedy?
As defendant, I will file a motion to dismiss
on the ground of litis pendencia or res
judicata (R16 S1 e or f)
respective participation in the case shall be

indicated.
R7 S2
The body of the pleading shall set forth
its:
GRANTED, remedy: APPEAL (dismissal is

with prejudice)
1. Designation
DENIED:
2. Allegation of the claims or defenses

3. Relief prayed for

Rule 65.
PLEADING / PARTS OF A
PLEADING
Rule 7 S1
The caption sets forth:
a. Name of the court
b. Title of the action
c. Docket number if assigned
The title of the action indicates the names
of the parties. They shall be named in the
original complaint or petition.
But in
subsequent pleadings, it shall be sufficient
if the name of the first party on each side
be stated with an appropriate indication
when there are other parties.
Their
4. Date of the pleading
Paragraph
The allegations in the body of a pleading
shall be divided into paragraphs so
numbered as to be readily identified each
of which shall contain a statement of a
single act of circumstances so far as can be
done with convenience.
A paragraph may be referred to by its
number in all succeeding pleadings.
Headings
When 2 or more causes of action are
joined, the statement of the first shall be
prefaced by the words first cause of action,
of the second by second cause of action
and so on for the others.
When one or more paragraphs in the
answer are addressed to one of several
causes of action in the complaint, they
shall be prefaced by the words answer to
the second cause of action or answer to the
second cause of action and so on; and
when one or more paragraphs are
addressed to several causes of action, they
shall be prefaced by words to that effect.
Relief
29

The pleading shall specify the relief sought,

but it may add a general prayer for such
further or other relief as may be deemed
just and equitable.
Date
Every pleading shall be dated
R7 S4
Except when otherwise specifically
required by law or rule, pleadings need not
be under oath, verified, or accompanied
by affidavit.
A pleading is verified by an affidavit that
1. the affiant has read the pleading
R7 S3
Every pleading must be signed by the
party or counsel representing him stating
in either case his address which should not
be a post office box. The signature of
counsel constitutes a certification by him
that
1. he has read the pleading,
2. that to the best of his knowledge,
information or belief there is good
ground to support it, and
3. that it is not interposed for delay
An unsigned pleading produces no legal
effect
However, the court may, in its discretion,
allow such deficiency to be remedied if it
appear that the same was due to mere
inadvertence and not intended for delay.
1. Counsel who deliberately files
unsigned pleading
2. that the allegations therein are true

and correct of his personal
knowledge or based on authentic
records
A pleading required to be verified which
contains a verification based
1. on information and belief or
2. upon knowledge, information and
belief
3. or lacks a proper verification
shall be treated as an unsigned pleading
Is a jurat a part of a pleading?

The general rule is that pleadings need not
be verified. However, if the law or the
Rules require that a pleading be verified,
verification is done by way of affidavit. In
an affidavit, there is a need for jurat to be
present. Hence, in a verified pleading, a
jurat becomes part of a pleading.
2. Signs a pleading in violation of

these rule,
3. or alleges scandalous or indecent
matter therein,
4. Or fails to promptly report to the
court a change of his address, shall
be subject to appropriate
disciplinary action
What are the pleadings that need to

be verified?
Petition for relief from judgment or
order (R38 S3)
Petition for review from RTC to CA

(R42 S1)
30

Interpleader (R62)
Petition for review from CTA and q-j
agencies to the CA (R43 S5)
Appeal by certiorari from the CA to
SC (R45 S4)
Petition for annulment of judgment

or final orders and resolutions (R47
S4)
Declaratory Relief and Similar

Remedies (R63)
Review of Judgments and Final

Orders or
Resolutions of COMELEC, CoA (R64)

Complaint for injunction (R58 S4)
Petitions for certiorari, prohibition,
mandamus (R65)
Application for appointment of
receiver (R59 S1)
Quo Warranto (R66)
Application for support pendent lite
(Rule 61 S1)
Expropriation (R67)
(all initiatory pleadings)

Original Complaint
Foreclosure of Real Estate Mortgage

(Rule 68)
Permissive Counterclaim
Partition (R69)
Cross Claim
Forcible Entry and Unlawful
Detainer (R70)
3rd 4th etc party complaint
Contempt (R71)
Petition
(all Special Proceedings)

Settlement of Estate of Deceased
(R73-90)
(all Special Civil Actions)
31

Escheat (R91)
Cancellation or Correction of Entries
in the Civil Registry (R108)
Petition for guardianship of minors

(AM __-__-__-SC)
Voluntary Dissolution of
Corporations (Corporation Code
)
Petition for guardianship of

incompetents (R92-97)
Petition for custody of minors in

relation to habeas corpus, AM __-____-SC)
Trusteeship (R98)
Judicial Approval of Voluntary

Recognition of Minor Natural
Children (Family Code,
)
Constitution of the Family Home

(Family Code,
)
Petition for Domestic Adoption

(Domestic Adoption Act,
Petition for inter country adoption

(Inter Country Adoption Act,
)
Habeas Corpus (R102)
Declaration of Absence and

Presumptive
Death (R107 in relation to Civil and

Family Code
)
Petition for declaration of Nullity

and Annulment of Marriage (
)
Writ of Amparo (
)
Petition for legal separation (
)
Writ of Habeas Data (
)
Pleadings not required be verified in
the manner and form prescribed by S4
of this Rule but the same must be
under oath:
Change of Name (R103)
Clerical Error Act (
32

Denial of genuineness and due

execution of actionable document
(R8 S8)
Third party claim (R39 S16)
Proof required of a redemptioner

(R39 S30)
Denial of allegations of usury (R8
S11)
Motion for preliminary attachment
(R57 S3)
Motion to set aside default order
(R9 S3b)
Motion for dissolution of preliminary
injunction (R58 S6)
Answer to written interrogatories
(R25 S2)
Application for writ of replevin (R60
S2)
Answer to request for admission
(R26 S2)
Claim against estate of a decedent
(R86 9)
The following pleadings or motion
with affidavit or affidavits of merit:
Motion to postpone for absence of
evidence (R30 S3)
Motion for new trial on the ground

of newly discovered evidence in
criminal cases (R121 S4)
Motion to postpone for illness of a

party or counsel (R30 S4)
Does the answer need to be verified?
Motion for summary judgment or

opposition thereto (R35 S1,2,3,5)
As a general rule, answers need not be

verified, save for following instances:
Motion for new trial on the ground

of fraud, accident, mistake, or
excusable negligence or opposition
thereto (r37 S2)
Petition for relief from judgment or

order (R38 S3)
Answer to allegations of usury in a

complaint to recover usurious
interests (R8 S11)
When the answer is based on an

actionable document (R8 S8)
Answer under the Revised Rules on

Summary Procedure
33

Answer in Small Claims Cases
If the pleading is not verified, as

counsel for plaintiff, remedy?
File for judgment on the pleadings under
Rule 34 S1, on the ground of admission of
material allegations of the adverse partys
pleadings. Ground is based on the fact
that an answer is filed, but there is no
genuine issue because the allegations are
deemed admitted.
R34 S1
R7 S5- certification against forum

shopping
Plaintiff or principal party shall certify
under oath in the complaint or other
initiatory pleading assisting a claim for
relief, or in a sworn certification annexed
thereto and simultaneously filed therewith,
1. that he has not theretofore
commenced any action or 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 claim or
action is pending therein
Grounds for judgment on the pleadings:

Answer fails to tender an issue
Answer admits the material
allegations of the adverse partys
pleading
Who can verify a pleading?

A party need not sign the verification.
The following may sign verification:
Party
Partys representative
Partys Lawyer
Any person who personally knows
the truth of the facts alleged in the
pleading
How about an authorized

representative? Can he verify?
Yes, if armed with proper authority from
the party (Through SPA?)
2. if there is no such other pending

action or claim, a complete
statement of the present status
thereof
3. if he should thereafter learn that

the same or similar action or claim
is filed or is pending, he shall report
that fact within 5 days therefrom to
the court where his aforesaid
complaint or initiatory pleading has
been filed
Failure to comply with the foregoing
requirements shall not be curable by mere
amendment of the complaint or pleading
but shall be cause for dismissal of the case
without prejudice, unless otherwise
provided, upon motion and after hearing.
Submission of a false certification or non
compliance with any of the undertakings
therein shall constitute indirect contempt
of court without prejudice to corresponding
administrative and criminal actions.
34

If acts of party or counsel clearly constitute

wilful and deliberate forum shopping, the
same shall be ground for summary
dismissal with prejudice, direct contempt,
and cause for administrative sanctions.
Original complaint
Permissive counterclaim
Cross claim
3rd 4th etc party complaint
Forum Shopping:
Forum shopping is an act of malpractice of
filing multiple suits in different courts
either simultaneously or successively,
involving the same parties, and asking the
courts to rule on the same or related
causes and/or to grant the same or
substantially the same relief
3 ways of committing forum shopping:

Filing multiple cases based on the
same cause of action and with the
same prayer the previous not
having been resolved (litis
pendencia)
Filing multiple cases based on the

same cause of action and with the
same prayer, the previous having
been resolved with finality (res
judicata)
Filing multiple cases based on same

causes of action but with different
prayers (splitting cause of action on
the ground of litis pendencia or res
judicata)
Pleadings requiring certification

against forum shopping:
Petition
What is stated in certification against

forum shopping:
R7 S5
The plaintiff or principal party shall certify
under oath in the complaint or other
initiatory pleading asserting a claim for
relief, or in a sworn certification annexed
thereto and simultaneously filed therewith:
1. That he has not theretofore
commenced any action or 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. If there is such other pending claim
or action, a complete statement of
the present status thereof
3. If he should thereafter learn that
the same or similar action or claim
has been filed or is pending, he
shall report that fact within 5 days
therefrom to the court wherein his
aforeseaid complaint or initiatory
pleading has been filed
States the effects of: (R7 S5)

Failure to attach certification
against forum shopping
35

Failure to comply with the foregoing

requirements shall not be curable by mere
amendment of the complaint or pleading
but shall be cause for dismissal of the case
without prejudice, unless otherwise
provided, upon motion and after hearing.
Remedy is file motion to dismiss
R16 S1j, and if granted, plaintiffs
remedy is to refile the case with the
required certification, unless if
declared by the court as dismissal
with prejudice, hence, remedy is
appeal
Submission of a falser
certification or non compliance
of any of the undertakings
therein
Submission of a false certification or non
compliance of any of the undertakings
therein shall constitute indirect contempt
of court without prejudice to corresponding
administrative and criminal actions
Willful and deliberate forum

shopping
If the acts of party or counsel clearly
constitute wilful and deliberate forum
shopping, the same shall be ground for
summary dismissal with prejudice, direct
contempt, and cause for administrative
sanctions.
Serves as FINAL ORDER, hence,
appeal is the proper remedy if
motion to dismiss under R16 S1j is
granted
Remedies in case of failure to attach

certification against forum shopping:
As counsel for defendant, file motion to

dismiss under Rule 16 S1j on the ground
that a condition precedent has not been
complied with.
Motion to dismiss was granted,

remedy?
As plaintiff, refile the case, on the ground
that the dismissal is without prejudice.
If the plaintiff committed wilful and

deliberate forum shopping, and the
complaint was dismissed, remedy?
As plaintiff, i will file notice of appeal under
Rule 41, because the dismissal is without
prejudice, hence, in the nature of a final
order.
Define, enumerate, each pleadings:

Complaint (R6 S3)
causes of action.
Counterclaim (R6 S6)

Any claim which a defending party
may have against an opposing party
Compulsory Counterclaim (R6

S7)
A counterclaim which being
cognizable by the regular courts of
justice arises out of or is connected
with the transaction or occurrence
constituting the subject matter of
the opposing partys claim and does
36

not require for its adjudication the

presence of third parties of whom
the court cannot acquire jurisdiction
Answer in intervention (R19 S3)

Filed by intervenor if he unites with
the defending party in resisting a
claim against the latter
Permissive Counterclaim (R6

S7)
A counterclaim which being
cognizable by the regular courts of
justice does not arise out of or is
connected with the transaction or
occurrence constituting the subject
matter of the opposing partys claim
and may require for its adjudication
the presence of third parties of
whom the court cannot acquire
jurisdiction
Answer (R6 S4)

Pleading in which a defending party
sets forth his defenses
Counter counterclaim (R6 S9)

A counterclaim that may be
asserted against an original
counterclaimant
Cross claim (R6 S8)

Counter crossclaim
Any claim by one party against a co

party arising out of the transaction
or occurrence that is the subject
matter either of the original action
or of a counterclaim therein
3rd 4th etc party complaint (R6

S11)
A claim that a defending party may,
with leave of court, file against a
person not a party to the action,
called a 3rd 4th etc party defendant
for contribution, indemnity,
subrogation, or any other relief in
respect of his opponents claim
A cross claim which may be filed

against an original cross claimant
Counterclaim
Original complaint
A
vs
Counterclaim
Counter Counter Claim

Complaint in intervention (R19
S1)
Pleading filed by an intervenor if he
answers a claim against either or all
of the original parties
Cross Claim
A
vs
and
37

(Original Complaint)
interest against both

parties, or who is so
situated as to be
adversely affected
by the distribution
or other disposition
of property in the
custody of the court
or of an officer
thereof
Cross Claim
Counter Cross Claim
Third Party Complaint

A vs B vs C (for CISA)
C is impleaded for CISA
Complaint In intervention
Third party is
impleaded in the
suit for CISA
A vs B
Third party has legal

interest and wants
to be impleaded in
the suit
C (or)
C wants to be impleaded in the action
Requires payment of docket fees
Permissive Counterclaim vs Compulsory

Counterclaim (Simplified version)
THIRD PARTY
COMPLAINT
COMPLAINT IN
INTERVENTION
Rule 6
Rule 19
A claim that a
defending party
may, with leave of
court, file against a
person not a party
to the action, called
a 3rd 4th etc party
defendant for
contribution,
indemnity,
subrogation, or any
other relief in
respect of his
opponents claim
Pleading filed by an
intervenor if he
answers a claim
against either or all
of the original
parties
Intervenor is any
person who has a
legal interest in the
matter in ligitation,
or in the success of
either of the parties,
or who has an
Permissive CC
Compulsory CC
Does not arise out of

or is connected with
the transaction or
occurrence that is
the subject matter
of the opposing
partys claim
Arises out of or is
connected with the
transaction or
occurrence that is
the subject matter
of the opposing
partys claim
Needs verification
and certification
against forum
shopping
Not
Docket fee is
required to be paid
Docket fees are

suspended
Failure to file
answer results in
declaration of
not
38

default
may require for its
adjudication the
presence of third
parties over whom
the court cannot
acquire jurisdiction
Does not require for

its adjudication the
presence of third
parties over whom
the court cannot
Not barred even if

not set up in the
action
Barred if not set up

in the action
Initiatory pleading
Not an initiatory
pleading
3PC vs Third party claim

Third Party
Complaint
Third Party Claim
Initiated by way of
complaint
By way of affidavit
Filed before the

court
Filed before the

sheriff
For CISA
Terceria
Pleading
Affidavit
Docket fees are

required to be paid
Not
case, regardless of
which party is
successful, would
amount to res
judicata in the other
case
Notice
A ground for motion

to dismiss under
Rule 16
Simultaneous or after filing of the original

complaint/pleading asserting a claim,
PROVISIONAL REMEDIES may be availed
of, ancillary to the main action for
protection and preservation of rights while
the main action is pending
PROVISIONAL REMEDIES
-
Temporary,
auxiliary,
ancillary
remedies available to a litigant for
the protection and preservation of
his rights while the main action is
pending
The following are the provisional remedies:

1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
Lis Pendens vs Litis Pendencia
3. Receivership (Rule 59)
Lis Pendens
Litis Pendencia
4. Replevin (Rule 60)
buyer beware
Filing multiple suits

in different courts
involving same
parties, same
causes of action,
same facts, same
relief, the identity of
the 2 cases such
that any judgment
that may be
rendered in one
5. Support Pendente Lite (Rule 61)
Notice to buyer of
existence of an
adverse claim
NOTE: Not Exclusive!

Protection orders
Provisional orders
39

Production orders
b. In
Witness protection orders
See: RA 9262, Rules on

Nullity/Annulment of Marriage/Legal
Separation, Petition for Custody of
Minors, Writ of Amparo, Writ of
Habeas Data
an action for money or

property
embezzled
or
fraudulently
misapplied
or
converted to his own use by a
public officer, or an officer of a
corporation, or an attorney,
factor, broker, agent, or clerk, in
the course of his employment as
such, or by any other person in a
fiduciary capacity, or for a wilful
violation of duty
NOTE ALSO:
Injunction and replevin can be main
actions in themselves
PROVISIONAL REMEDIES
A. Preliminary
57)
Attachment
(Rule
When filed? (R57 S1)

At the commencement of the action or at
any time before entry of judgment, a
plaintiff or any proper party may have the
property of the adverse party attached as
security for the satisfaction of judgment
that may be recovered in the following
cases (See grounds)
Grounds for preliminary attachment (NOTE:

TINATANONG SA BAR!)
Rule 57 S1
a. In an action for recovery of a

specified amount of money or
damages, other than moral and
exemplary, on a cause of action
arising from law, contract, quasi
contract, delict or quasi delict
against a party who is about to
depart from the Phils with
intent to defraud his creditors
c. In an action to recover the

possession of property unjustly
or fraudulently taken, detained,
or converted, when the property,
or any part thereof, has been
concealed,
removed,
or
disposed of to prevent its being
found or taken by the applicant
or an authorized person
d. In an action against a party who

has been guilty of fraud in
contracting
the
debt
or
incurring the obligation upon
which the action is brought, or
in the performance thereof
e. In an action against a party who

has removed or disposed of his
property, or is about to do so
with intent to defraud his
creditors
f. In an action against a party who

does not reside and is not found
in the Phils, or on whom
summons may be served by
publication
40

Cany you apply for writ of attachment

before the MTC?
Requirements: (Rule 57 S3)

1. By way of motion or by way of
complaint
2. Verified
application
through
Affidavit
attached to motion or
complaint
YES.
In all instances?
YES. Because under Summary Procedure,
not a prohibited pleading
FE/UD- No
Amount 200k MM- yes
100k- no
Stating the grounds
That there is no sufficient security
Ordinary Civil Actions- yes
When is it necessary to issue summons?

3. Allegation
of
the
ground
necessitating
the
need
for
preliminary attachment
4. Posting of bond in an amount to be

determined by the court
In case of implementation of
preliminary attachment (3rd stage)
Stages:
-
Publication
Order/Execution
How is attachment applied for?

By way of
complaint?
motion?
Or
o
by
way of
With Summons
How attached?
HOW?
At the commencement of the complaint
By verified complaint
At any time before judgment

-
BOTH ARE EX PARTE
Implementation
o
EITHER
the
By verified motion
Garnishment
Levy on attachment
o
Annotated on back of title,

warning
on
subsequent
buyer subject to outcome of
the case
41

Remedy in case of issuance of writ of

attachment:
R57 S12 and S13
S12- Motion to discharge attachment upon
giving of counterbond
S13- Motion to quash the
attachment on the ff grounds:
writ
of
That the writ was improperly or

irregularly issued or enforced
That the bond is insufficient
If the attachment is excessive, the

discharge shall be limited to the excess
the court)
May be resorted to
even if property is in
the possession of a
third person
B. Preliminary Injunction (Rule 58)

Injunction
-
INTERLOCUTORY, hence,
o
M4R R65 S4
Certiorari R65 S1, R41 S1b
An order granted at any stage of an

action or proceeding prior to the
judgment requiring a party or a
court, agency, or a person to refrain
a particular act or acts
Preliminary Mandatory Injunction

-
An order requiring the performance

of a particular act or acts
Denial- interlocutory
Purpose of the bond:

-
Judicial writ, process, or proceeding

whereby a party is ordered to do or
refrain from doing a particular act
Preliminary Injunction
Order of denial of motion to quash:

-
personal property
Can be sought only
when defendant is in
actual possession of
the property
To answer for damages incurred by

the adverse party in case writ of
attachment
is
improperly
or
irregularly enforced
Remedy: certiorari
If FJ- appeal
Can preliminary injunction be issued ex

parte?
Writ of
Preliminary
Attachment
Covers
real
or
personal property
At
the
commencement of
the action or at any
time before entry of
judgment
Amount of the bond
is the value of the
obligation (fixed by
Writ of Replevin
Covers
only
personal property
Commencement of
the action or at any
time before answer
Amount of the bond
is
double
the
amount
of
the
NO (?). TRO- yes
Writ of
preliminary
injunction
A writ granted at
any stage of action
or proceeding prior
to the judgment or
final order, requiring
TRO
An order to restrain
particular act or acts
of a party for a
limited period of
time
42

a party or a court,
agency or person
from a particular act
or acts. It may also
require performance
of a particular act or
acts, in which case it
shall be known as a
preliminary
mandatory
injunction
GROUNDS for preliminary injunction (R58
S3):
a. That the applicant is entitled to the
relief demanded, and the whole or
part of such relief consists in
restraining the commission or
continuance of the act or acts
complained of, or in requiring the
performance of an act or acts,
either for a limited period or
perpetually
b. That the commission, continuance,

or non performance of the act or
acts complained of during the
litigation would probably work
injustice to the applicant, or
c. That a party, court, agency, or a

person is doing, threatening, or is
attempting to do, or is procuring or
suffering to be done, some act or
acts probably in violation of the
rights of the applicant respecting
the subject of the action or
proceeding, and tending to render
the judgment ineffectual
reasonable redress can be had

therefore in court of law or where
there is no standard by which their
amount can be measured with
reasonable accuracy
How do you avail?

By way of MOTION or by way of VERIFIED
COMPLAINT
IF
by
verified
complaint,
at
the
commencement of the action or before
entry of judgment, INCORPORATED IN THE
BODY OF THE COMPLAINT
If by motion, then by an application for
relief complying with the Rules on Motion:
1. In writing, [except those made upon
in open court or in the course of a
hearing or trial ] (R15 S2)
2. Must be verified and accompanied

by an affidavit of merit if the ground
for the motion is FAME
3. Shall state the following (R15 S3)
a. Relief sought to be obtained

b. Grounds upon which it is
based and
c. If required by these Rules or
necessary to prove facts
alleged therein, shall be
supported by supporting
affidavits and other papers
Irreparable damage and injury

-
Of such constant and frequent

recurrence
that
no
fair
or
4. Motion is set for hearing by

applicant (R15 S4)
43

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
(R13 S11)
5. Notice of hearing addressed to all

parties concerned, specifying the
time and date of hearing which
must not be later than 10 days after
the filing of the motion (R15 S5)
6. Motion and notice of hearing must

be served at least 3 days before the
date of hearing (3 day notice rule)
7. Proof of service of the motion

R13 S13
Proof of personal service shall consist of:
-
Written admission of party served

or
Official return of the server or
Affidavit of the party serving

containing a full statement of the
date, place, and manner of service
Effect of failure to comply with

Sections, 4, 5, 6 of Rule 15?
1. *the motion shall be treated as a
worthless piece of paper which the
clerk of court has no right to receive
and the court has no authority to
act upon (mere scrap of paper)
2. It does not interrupt the running of
the prescriptive/reglementary
period for the filing of the requisite
pleading
3. It will be ground for denial of the
motion
4. The motion shall be considered as
not filed
If by service is by ordinary mail, proof

thereof shall consist of an affidavit of the
person mailing of facts showing compliance
with S7 of this Rule.
HOW?
If service is by registered mail, proof shall

be made by such affidavit and registry
receipt issued by the mailing office
At any time before judgment
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.
8. If the motion is not served to the
other party by personal service,
such mode resorted to must be
accompanied by a written
At the commencement of the complaint

-
By verified motion
Status Quo Order

-
Order issued by the court to

maintain the last, peaceable, actual,
uncontested condition of the parties
before the action or proceeding
44

TRO- order restraining particular act or acts

of a party for a limited period of time; can
be issued ex parte
(RULE 58- AM 7-7-12)
Sec. 5. Preliminary injunction not granted

without notice; exception. No preliminary
injunction shall be granted without
hearing and prior notice to the party
or persons sought to be enjoined. If it
shall appear from facts shown by affidavits
or by the verified application that great or
irreparable injury would result to the
applicant before the matter can be heard
on notice, the court to which the
application for preliminary injunction
was made, may issue ex parte a
temporary restraining order to be
effective only for a period of twenty
(20) days from service on the party or
person sought to be enjoined, except
as herein provided. Within the twenty-day
period, the court must order said party
or person to show cause at a specified
time and place, why the injunction
should not be granted. The court shall
also determine, within the same
period, whether or not the preliminary
injunction shall be granted, and
accordingly issue the corresponding
order.
However, subject to the provisions of the
preceding sections, if the matter is of
extreme urgency and the applicant will
suffer grave injustice and irreparable
injury, the executive judge of a multiplesala court or the presiding judge of a
single-sala court may issue ex parte a
temporary restraining order effective
for only seventy-two (72) hours from
issuance, but shall immediately comply
with the provisions of the next
preceding section as to service of
summons and the documents to be
served therewith. Thereafter, within the
aforesaid seventy-two (72) hours, the judge

before whom the case is pending shall
conduct a summary hearing to
determine whether the temporary
restraining order shall be extended
until the application for preliminary
injunction can be heard. In no case
shall the total period of effectivity of
the
temporary
restraining
order
exceed twenty (20) days, including the
original seventy-two hours provided
herein.
In the event that the application for
preliminary injunction is denied or not
resolved within the said period, the
temporary restraining order is deemed
automatically vacated. The effectivity of a
temporary restraining
order
is
not
extendible without need of any judicial
declaration to that effect, and no court
shall have authority to extend or renew the
same on the same ground for which it was
issued.
However, if issued by the Court of Appeals
or a member thereof, the temporary
restraining order shall be effective for
sixty (60) days from service on the
party or person sought to be enjoined.
A restraining order issued by the Supreme
Court or a member thereof shall be
effective
until
further
orders.
l
The trial court, the Court of Appeals, the
Sandiganbyan or the Court of Tax Appeals
that issued a writ of preliminary injunction
against a lower court, board, officer, or
quasi-judicial agency shall decide the main
case or petition within six (6) months
from the issuance of the writ.
Lifetime (R57 S5 in relation to AM 7-7-12)
45

Effective only for a period of 20

DAYS from service on the party or
person sought to be enjoined.
o
Court to order said party or

person to show cause at a
specified time and place why
injunction should not be
granted, w/n P injunction
should be granted, and
accordingly
issue
the
corresponding order
SC or member issues: effective until further

orders
AGAIN...
TRO- order restraining acts of a party for a
limited period of time
20 days
72 hours (ex parte)- extreme urgency
20 days non extendible
IF the matter is of EXTREME

URGENCY, applicant will suffer
grave injustice and irreparable
injury, executive judge of multi sala
court or presiding judge of single
sala court may issue EX PARTE TRO
o
Effective for only 72 HOURS

from issuance,
Can the court issue injunction ex parte?

NO!- requires notice and hearing
Can MTC issue TRO?
Ordinary Civil Actions- Pwede
Forcibly Entry / UnlawFul Detainer- YES
But shall immediately

comply
with
provisions of the next
preceding section as
to
service
of
summons
and
documents
to
be
served
Within the 72 hours, judge to

conduct
summary
hearing
to
determine whether the TRO can be
extended until application for
preliminary injunction can be heard,
o
Total period of effectivity of

TRO shall NOT EXCEED 20
DAYS, including the original
72 hours provided therein
CA issues: effective for 60 DAYS from

service on the party or person sought to be
enjoined
R70 S15
Court may grant preliminary injunction, in
accordance with the provisions of R58
thereof, to prevent defendant from
committing further acts of dispossession
against plaintiff.
A possessor deprived of possession
through Fe or UD may, within 5 days from
filing of complaint, present a motion in the
action for FE UD for issuance of writ of
preliminary mandatory injunction to restore
him in his possession. The court shall
decide the motion within 30 days from
filing thereof
R70 S20
Upon motion of plaintiff, within 10 days
from perfection of appeal to the RTC, the
latter may issue a writ of preliminary
mandatory injunction to restore plaintiff in
possession if the court is satisfied that
46

defendants appeal is frivolous or

dilatory, or
that the appeal of plaintiff is prima

facie meritorious
REMEDIES IN
INJUNCTION:
CASE
OF
PRELIMINARY
Granted: (Rule 57 S6)

-
quash the writ based on:
1. upon showing of insufficiency
1. When prejudicial to the rights of the

accused
2. When there is need for protecting

the Constitutional rights of the
accused
3. To Prevent the long arm of the law

from being vindictive
4. When
prejudicial
involved in the case
question
is
2. on other grounds upon affidavits of

the party or person enjoined
3. if it appears after hearing that
although applicant is entitled to the
injunction or restraining order, the
issuance or continuance thereof, as
a case may be, would cause
irreparable damage to the party or
person enjoined while applicant can
be fully compensated for such
damages he may suffer
Other requirements for quashal of writ:
1. filing of bond in amount fixed by
court conditioned that he will pay all
damages which applicant may
suffer by the denial or dissolution of
the injunction or restraining order
5. In case of criminal
under an invalid law
prosecution
Can MTC issue preliminary injunction?

YES, except in:
Case falling under Summary Procedure, if
the claim being 100k (Small Claims),
EXCEPT:
-
FE and UD
o
R70- preliminary mandatory

injunction and preliminary
prohibitory injunction are
allowed
Denied:
-
M4R
Certiorari Rule 65
Can there be injunction in criminal cases?

YES, in case of preliminary injunction with
respect
to
preliminary
investigation
(general rule, no, but the enumerations are
the exceptions)
Prohibitory
Injunction
Provisional remedy
Rule 58
An order granted at
any stage of an
action or proceeding
prior
to
the
judgment requiring
a party or a court,
Prohibition
Special civil action
Rule 65
Petition in case a
person exercising J,
QJ,
Ministerial
Function
acted
without jur or with
GAD amounting to
47

agency, or a person
to
refrain
a
particular act or acts
lack or excess of
jurisdiction,
for
respondent to desist
from
further
proceedings
Mandatory
Injunction
Provisional Remedy
Rule 58
An order requiring
the performance of
a particular act or
acts
Mandamus
Directed against a
party
Provisional remedy
By way of motion
Special Civil Action

Rule 65
Requires
performance of a
ministerial act or to
desist
from
excluding
another
from a right or office
(ministerial)
Directed against a
Judicial
or
quasi
judicial
bodies
exercising
ministerial functions
Original action
By way of petition
C. Receivership (Rule 59)
Provisional remedy to preserve a

property subject of litigation from
further loss, wastage, damage,
dissipation for the protection of
another person
Where applied for?

1. Court where action is pending
2. CA
applying for the appointment

of receiver has an interest in
the property or fund which is
the subject of the action or
proceeding, and that such
property or fund is in danger
of being lost, removed, or
materially injured unless a
receiver be appointed to
administer and preserve it
b. When it appears in an action

by the mortgagee for the
foreclosure of mortgage that
the property is in danger of
being wasted or dissipated
or materially injured, and
that its value is probably
insufficient to discharge the
mortgage debt, or that the
parties have so stipulated in
the contract of mortgage
c. After judgment, to preserve

the property during the
pendency of an appeal, or to
dispose of it according to the
judgment,
or
to
aid
execution when execution
has
been
returned
unsatisfied
or
when
judgment obligor refuses to
apply
his
property
in
satisfaction of the judgment
or otherwise to carry the
judgment into effect
3. SC
Grounds: (R59 S1)
a. When it appears from the
verified
application,
and
such other proof as the court
may require, that the party
d. Whenever in other cases it

appears
that
the
appointment of a receiver is
the most convenient and
feasible
means
of
preserving, administering, or
48

disposing of the property in

litigation
During pendency of appeal, the appellate
court may allow an application for the
appointment of a receiver to be filed in and
decided by the court of origin and the
receiver appointed to be subject to the
control of said court.
Receivership with appointment of receiver:

pwede
Receivership with MTC: pwede, except in
Small Claims
General powers of receiver:

REQUIREMENTS:
1. Verified motion in a complaint /
Verified
complaint
at
commencement of action (R59 S1)
R59 S6
Subject to the control of the court in which
the action or proceeding is pending, a
receiver shall have the power to
1. Bring and defend, in such capacity,
actions in his own name
2. Bond by applicant in an amount to

be fixed by the court to pay such
person against whom application is
presented to pay such party all
damages he may sustain by reason
of the appointment of such receiver
in case the applicant shall have
procured such appointment without
sufficient cause(R59 S2)
3. Oath and Bond by receiver to

faithfully discharge of his duties in
an action or proceeding and obey
court orders
IF pending appeal,
-
2. Take and keep possession of the

property in controversy
3. To receive rents
4. To collect debts due to himself, as

receiver or to the fund, property,
estate, person, corporation to which
he is the receiver
5. To compound for and compromise

the same
IF after judgment,
-
By way of motion
NOTE: Receivership as provisional remedy

applies
to
all
civil
actions,
while
receivership of corporation is an original
action applicable only to corporations
under the Corporation Code of the
Philippines
6. To make transfers
7. To pay outstanding debts
49

8. To divide the money and other

property that shall remain among
the persons legally entitled to
receive the same
D. REPLEVIN (Rule 60)
9. To do such acts respecting the

property as the court may authorize
A provisional remedy for recovery of

personal property / reacquisition of
personal
property
subject
of
litigation
However, funds in the hands of a receiver

may be invested only by order of the court
upon the written consent of all the parties
to the action.
Can be a provisional remedy or a main

action
-
No action may be filed by or against a

receiver without leave of the court which
appointed him
If a main action, then it is an action

for recovery of unlawfully withheld
personal property in the possession
of another
Jurisdiction/Venue:
Termination of receivership; compensation
of receiver
RTC or MTC (300k-400k OMM MM higher

lower)
R59 S8
Whenever the court, motu proprio or on
motion of either party, shall determine that
the necessity for receiver no longer exists,
it shall, after due notice to all interested
parties and hearing,
1. settle the accounts of the receiver,
2. direct the delivery of the funds and

other property in his possession to
the person adjudged to be entitled
to receive them,
3. and order the discharge of the

receiver from further duty as such
The court shall allow the receiver such
reasonable
compensation
as
the
circumstances of the case warrant, to be
taxed as costs against the defeated party,
or apportioned, as justice requires.
REQUIREMENTS: (R60 S2)

1. Verified
Application
(by
affidavit)/complaint before service
of answer
Facts:
a. That applicant is the owner of the
property
claimed,
particularly
describing it, or is entitled to the
possession thereof
b. That the property is wrongfully

detained by adverse party, alleging
cause
of
detention
thereof
according to the best of his
knowledge, information, and belief
c. That the property has not been

distrained or taken for a tax
assessment or a fine pursuant to
50

law, or seized under a writ of

execution
or
preliminary
attachment, or otherwise placed
under custodia legis, or if so seized,
that it is exempt from such seizure
or custody
(Exception: Criminal cases falling under

MTC jurisdiction?)
When available?
d. The actual market value of the

property
2. Posting of bond by applicant in

double the value of the property
stated in the affidavit mentioned,
for return of the property to adverse
party if such return be adjudged,
and for payment to adverse party of
such sum as he may recover from
the applicant in the action
Action for support
Relief sought
applicant
Nullity of marriage
Annulment of marriage
Legal separation
Custody of minors in relation to

habeas corpus
Criminal cases:
o
Rape
RA9262
is
support
for
S1- Application
Denied, REMEDY:
Counterbond
property
double
At
the
amount
of
E. SUPPORT PENDENTE LITE (Rule

61)
Amount of support provisionally

fixed by the court in favour of the
person or persons entitled thereto
during the pendency of an action for
support
IMMEDIATELY EXECUTORY!
Where filed?
FAMILY COURT
the commencement of the proper

action or proceeding,
or at any time prior to the judgment

or final order,
o
a verified application for

support pendentee lite may
be filed by any party
stating the grounds

for the claim and the
financial conditions of
both parties, and
commenced
by
affidavits,
depositions, or other
authentic documents
in support thereof
Why not in MTC?

Because action for
support
is
incapable
of
pecuniary
estimation
51

S2- Comment
A copy of the application and all supporting
documents
-
shall be served upon adverse party,

o
proper resolution of the question

involved.
If the application is granted,
-
the court shall fix
who shall have 5 days to

comment thereon
the amount of money to be

provisionally paid,
unless a different
period is fixed by the
court
upon
his
motion.
or such other forms of

support
as
should
be
provided,
The comment shall be verified and shall be

accompanied by affidavits, depositions, or
other authentic documents in support
thereof.
taking into account

the necessities of the
applicant and the
resources or means
of the adverse party,
and
S3- Hearing
terms of payment or
mode for providing
the support.
1. After the comment is filed, or

2. after the expiration of the period for
its filing,
a. the application shall be set
for hearing not more than 3
days thereafter
The facts in issue shall be proved in the
same manner as if proved for evidence on
motions.
S4- Order
If the application is denied, the principal

case shall be tried and decided as early as
possible.
S5- enforcement of order

If the adverse party fails to comply with an
order granting support pendente lite, the
court shall, motu proprio or upon motion,
-
The court shall determine provisionally
1. the pertinent facts, and

shall render such order as justice and
equity may require,
-
having due regard to the probable

outcome
and
such
other
circumstances as may aid in the
issue an order of execution against

him,
without prejudice to
liability for contempt.
his
When the person ordered to give support

pendente lite refuses or fails to do so,
-
any third person who furnished that

support to the applicant may, after
due notice and hearing in the same
case,
52

obtain a writ of execution to

enforce
his
right
of
reimbursement against the
person ordered to provide
such support.
it shall order the recipient thereof to

return to the former the amounts
already paid with legal interest from
the dates of actual payment,
o
S6- Support in criminal cases

In criminal cases
1. where the civil liability includes
support for the offspring as a
consequence of the crime
2. and civil aspect thereof has not
been waived, reserved, or instituted
prior to its filing,
Should recipient fail to reimburse said

amounts, the
-
person who provided the same may

likewise
o
a. the accused may be ordered

to provide support pendente
lite to the child born to the
offended party allegedly
because of the crime.
The application therefore may be filed
successively by the
-
offending party,
her parents,
grandparents,
or guardian
and the state in the corresponding

criminal case during its pendency,
o
in accordance with the

procedure established in this
Rule.
S7- Restitution
When the judgment or final order of the
court finds that the person who has been
providing support pendente lite is not liable
therefor,
without prejudice to the right

of
recipient
to
obtain
reimbursement in a separate
action from the person
legally obliged to give the
support.
seek reimbursement thereof

in a separate action from the
person legally obliged to
give such support.
Failure of action for support pendente lite,

REMEDY:
-
move for motion for execution
DENIED,
-
file petition for indirect contempt,

for disobedience to lawful order of
the court
SPECIAL CIVIL ACTIONS

(discussed in this stage because initiatory
pleadings are filed, by complaint or by
petition, as the case may be)
SCA initiated by
complaint
- Interpleader
(62)
- Foreclosure of
mortgage
(68)
- Forcible entry
SCA initiated by
petition
- declaratory
relief (62)
- review
of
adjudication
of comelec,
coa (64)
53

/ UD (70)
Partition (69)
Expropriation
(67)
c, m, p (65)
qw (66)
contempt
(71)
S1- When proper

Whenever
-
1. Interpleader (62)
2. Declaratory Relief and other similar
remediesv (63)
Initiated by way of complaint
conflicting claims upon the same

subject matter
o
are or may be made against

a person who claims no
interest whatever in the
subject matter or
an interest in which in whole

or in part is not disputed by
claimants,
3. Review of judgments, final orders,

resolutions of CoA, COMELEC (64)
4. Certiorari,
(65)
Prohibition,
Mandamus
5. Quo Warranto (66)
6. Expropriation (67)
7. Foreclosure of Real Estate Mortgage
(68)
8. Partition (69)
9. Forcible
(70)
Entry/Unlawful
Detainer
10. Contempt (71)

Governed by Special Rules, Rules on
ordinary civil actions apply in a suppletory
manner (OR is it the other way? R1 states
governed by rules on ordinary civil actions,
subject to specific rules prescribed in a
special civil action)
Examples:
VENUE
NOTE: Person in possession has no legal

interest
Interpleader
Rule 61
Without leave of
court
Original / Special
Civil action
Filed by complaint
for interpleader
MOTION TO DISMISS
DEMURRER TO EVIDENCE
PARTS OF A PLEADING
he may bring an
action
against
conflicting litigants to
compel
them
to
interplead
and
litigate their several
claims
among
themselves
At any time
Intervention
Rule 19
With leave of court
Ancillary to main
action
If
for
plaintiffcomplaint
in
intervention
If for defendantanswer
in
intervention
Before judgment
JURISDICTION:
INTERPLEADER (Rule 62)
RTC or MTC 20-50 real 300-400 personal

higher lower
54

VENUE:
from the notice of denial. (See Rule 16

S4)
Real- R4 S1
Personal- R4 S2
S5- Answer and other pleadings

S2- Order
Upon filing of the complaint, the court shall
-
issue an order requiring the

conflicting claimants to interplead
with one another.
Each claimant shall file his answer setting

forth his claim within 15 days from service
of the summons upon him,
-
If the interests of justice so require,

-
the court may direct in such order

o
that the subject matter be

paid or delivered to the
court.
who may file their reply

thereto as provided in these
Rules.
If any claimant fails to plead within the

time therein fixed, the court may, on
motion,
-
declare him in default and
thereafter render judgment barring

him from any claim in respect to the
subject matter.
S3- Summons
Summons shall be served upon the
conflicting claimants, together with a copy
of the complaint and order.
serving a copy thereof upon each of

the other conflicting claimants,
The parties in an interpleader action may

file counterclaims, cross claims, 3rd party
complaints
and
responsive
pleading
thereto, as provided in these Rules.
S4- Motion to dismiss

Within the time for filing an answer, each
claimant may
-
file motion to dismiss on the ground

of impropriety of the interpleader
action or
on other appropriate
specified in Rule 16.
grounds
The period to file the answer shall be

tolled and if the motion is denied, the
movant may file his answer within the
remaining period, which shall not be
less than 5 days in any event, reckoned
S6- Determination
After the pleadings of the conflicting
claimants have been filed, and pre trial has
been conducted in accordance with these
Rules,
-
the
court
shall
proceed
to
determine their respective rights
and adjudicate their several claims.
In case of adverse Resolution,

Appeal pursuant to R40-42
55

(EXCLUSIVE) hence, if not, then not subject

here
DECLARATORY RELIEF AND OTHER

SIMILAR REMEDIES (R63)
NOTE: DECLARATORY RELIEF is the only

civil action (special vis a vis ordinary) that
can be filed even before breach or violation
thereof
Objective: (R63 S1)

Interpretation/Construction of:
JURISDICTION/VENUE:
deed,
will,
contract, or
other written instrument, or
Declaratory Relief:
-
determining validity of:

statute,
executive order,
regulation,
ordinance, or
any
other
regulation
of
pecuniary
Queting of title:
-
RTCincapable
estimation
MTC or RTC 20-50 OMM MM lower

higher
Consolidation of ownership:
-
RTCincapable
estimation
of
pecuniary
of
pecuniary
Reformation of contracts:
governmental
RTCincapable
estimation
OTHER SIMILAR REMEDIES CONTEMPLATED

which applies the provisions of this Rule:
-
Can the SC entertain

declaratory relief?
reformation of an instrument
NOTE: INSTRUMENT, not the elements of

the instrumentif such, e subject of
another proceeding to, annulment of
contract
-
quiet title to real property

remove clouds therefrom
or
consolidate ownership
In case of pacto de retro sale or foreclosure

of mortgage, not necessarily owner agad,
hence, file for consolidation of ownership
under this Rule
petition
for
NO. BP129- RTC EO Jur, actions incapable

of pecuniary estimation
Requirements:
S2- Parties
All persons who have or claim any interest
which would be affected by the declaration
shall be made parties, and
-
no declaration shall, except

provided in these Rules,
as
56

prejudice the rights of

persons not parties to the
action.
S3- Notice on Sol Gen

In any action which involves validity of
statute,
EO, or
regulation, or
any other governmental regulation,

The Sol Gen shall be notified
by the party assailing the
same and
shall be entitled to be
heard
upon
such
question
S4- Local government ordinances

In any action involving the validity of a
local government ordinance,
-
Constitutional Basis:
A9A S7 (basis of Rule 64)
REVIEW OF JUDGMENTS AND FINAL

ORDERS OR RESOLUTIONS OF THE
COMELEC AND COMMISSION ON AUDIT
(Rule 64 [but applying Rule 65])
the corresponding prosecutor or

attorney of the LGU involves shall
be similarly notified and entitled to
be heard.
If such ordinance is alleged to be

unconstitutional, the Sol Gen shall also be
notified and entitled to be heard.
Each Commission shall decide by majority

of all its Members in any case or matter
brought before it within 60 days from date
of its submission for decision or resolution.
A case or matter is deemed submitted for
decision or resolution upon the filing of the
last pleading, brief, or memorandum
required by the rules of the Commission or
by the Commission itself. Unless otherwise
provided by this Constitution or by law, any
decision, order, or ruling of each
Commission may be brought to the SC on
certiorari by the aggrieved party within 30
days from receipt of a copy thereof.
COVERAGE: (R64 S1)
Judgments, final
COMELEC, CoA
orders,
resolutions
of
S1- Scope
Final orders or judgments of COA and
COMELEC
S2- Mode
SC- petition for certiorari under Rule 65
In case of adverse resolution

-
APPEAL R41
o
(R40 to RTC if Quieting in

MTC)
S3- Time
Within 30 days from notice of judgment
IF M4r denied, filed within remaining period
and not less than any event reckoned from
notice of the denial
57

NO FRESH PERIOD RULE, only in 40 41 42

43 45
4. Questions are too unsubstantial to

warrant further proceedings
S7- Comments of respondents
S4- Docket, lawful fees

Pay, + 500 for costs
18 copies
No other pleading may be filed

unless required or allowed by court
S5- Form/Contents
1. Verified petition, 18 copies, with
certified true copy of judgment
2. Respondent is Comelec or CoA,
person interested in sustaining
3. Finding of fact supported by
substantial evidence, final and non
reviewable
4. State
specific
material
showing it was filed on time
Filing of certiorari will not stay execution of

judgment, FO, resolution sought to be
reviewed, unless SC shall direct otherwise
upon such terms as may be just
Petitioner may apply for TRO or preliminary
injunction to stay execution
dates
5. Accompanied by sworn certification

against forum shopping
6. Proof of service of its copy on
commission and adverse party, and
of payment of docket and other
lawful fees
S6- order to comment

-
S8- Effect of filing
Within 10 days from notice of order

or judgment, by respondent, or else,
dismissed
Rule 65
Applies to orders of
judicial,
quasi
judicial
court
or
tribunals
60 days from denial
of
motion
for
reconsideration (AM
7-7-12-SC)
Motion
for
reconsideration
is
required
Petition filed before
RTC, CA, SC
Rule 64
Applies
to
judgments,
final
orders, resolutions
of
CoA
and
COMELEC
30 days from notice
of judgment or final
order or resolution
sought
to
be
reviewed
NOT
Petition filed before
SC
Grounds for dismissal

1. Non compliance
contents
with
form
and
2. Non payment of docket and 500 for

costs
3. Filed manifestly for delay
Rule 43
Appeal/Petition for
review of decisions
of
Quasi
Judicial
Bodies
15 days from notice
of
award,
final
judgment, resolution
Rule 64
Petition for review of
judgments and final
orders or resolutions
of COMELEC and
CoA
30 days from notice
of judgment or final
order sought to be
reviewed
58

With the CA
With the SC
d. presidential decree
e. proclamation
f.
CERTIORARI, PROHIBITION,
MANDAMUS (Rule 65)
order
g. instruction
h. ordinance
A8 S1 P2
i.
Judicial Power includes the duty of the

courts
of
justice
to
settle
actual
controversies involving rights which are
legally demandable and enforceable, and
to determine whether or not there is grave
abuse of discretion amounting to lack or
excess of jurisdiction on the part of any
branch
or
instrumentality
of
the
government.
regulation
i. is in question
7. all cases involving the legality of

any
a. tax
b. impost
c. assessment
A8 S5 P2
-
Review
d. toll
Revise
e. any penalty imposed in

relation thereto
Reverse
Modify
Affirm
o
8. all cases in which the jurisdiction of

On appeal or certiorari, as
the law or the Rules of Court
may provide, final
judgments and orders of
lower courts in:
6. All cases in which constitutionality

or validity of any
9. all criminal cases in which the

perpetua or higher
10. all cases in which only an error or

question of law is involved
a. treaty,
b. international or executive
agreement
c. law
What is the MATERIAL DATES RULE?

As far as Rule 65 is concerned, the
following material dates must be stated in
59

the verified petition or else, the petition

would be denied:
performance of ministerial duty or

unlawfully excluded another from
use and enjoyment of a right or
office to which such other is entitled
1. Notice of the order or judgment

2. Date of the filing of the motion for
reconsideration
3. Date of the denial of the motion for
reconsideration
Certiorari
-
Special civil action directed to an

inferior court, tribunal, board or
officer directing judicial or quasi
judicial functions, to annul or modify
proceedings of such court, tribunal,
board or officer in the event that
the same has acted with grave
abuse of discretion amounting to
lack or excess of jurisdiction
Seeks to correct errors of
jurisdiction
Prohibition
Special civil action directed against
any tribunal, board, officer or
person exercising judicial, quasi
judicial, or ministerial functions, to
desist from further proceedings in
the event that the same acted with
grave
abuse
of
discretion
amounting to lack or excess of
jurisdiction
Mandamus
-
that there is no plain, speedy, or

adequate remedy in the ordinary
course of law
Certiorari
discretionary
QUALIFICATIONS in ALL 3:
Special civil action directed against

any tribunal, corporation, board,
officer or person, to do the act
required to be done to protect the
rights of petitioner and to pay
damages sustained by petitioner by
reason of the respondents wrongful
act, in the event that the same
unlawfully
neglected
in
the
Mandamus
Ministerial
Prohibition
Discretionary
and ministerial
To annul order
To
order To
restrain
performance
performance
60 days from receipt of final judgment or order or
from denial of motion for reconsideration
Against entity Against entity Against
entity
or
person or
person or
person
exercising j or exercising
exercising j, ej,
ej function
ministerial
ministerial
function
function
Without or GAD
Unlawful
Without or GAD
neglect
of
ministerial duty
or
excluded
another from a
right or office
Correct errors Performance of To restrain or
of jurisdiction
act or desist prevent
from excluding usurpation
of
another from a jurisdiction
right or office
Errors of
Jurisdiction
Court acted with
GAD amounting to
lack or excess of
jurisdiction
Action of the court
Correctible
by
certiorari
Rule 65
Errors of
Judgment
Misapprehension of
law or facts by the
court
Valid proceeding
Correctible
by
appeal
Rules 40-43, 45
General Rule: M4R is required to allow the

court to correct its errors
60

Exception:
1. where the order is a patent nullity,
as where the court has no
jurisdiction
2. where question raised in the

certiorari proceedings have been
duly raised and passed upon by the
lower court, or are the same as
those raised and passed upon by
the lower court
3. where there is an urgent necessity

for the resolution of the question
and any further delay would
prejudice the interest of the
government or the petitioner or the
subject of the action is perishable
4. where under the circumstances, a

motion for reconsideration would be
useless
5. where petitioner was deprived of

due process, and there is extreme
urgency for relief
6. where, in a criminal case, relief

from an order of arrest is urgent
and the granting of such relief by
the trial court is improbable
7. where the proceedings in the lower

court are a nullity for lack of due
process
8. where the proceeding were ex parte

or in which the petitioner had no
opportunity to object
9. where the issue raised is one purely

of law or where public interest is
involved
REQUIREMENTS:
1. verified petition in 7 legible copies
2. it should be filed not later than 60

days from notice of judgment, order
or resolution sought to be assailed
or from denial of M4R
3. contain full names and addresses of

petitioners
and
respondents,
concise statement of matters
involved, factual background of the
case, grounds relied upon for the
relief prayed for
4. accompanied by clearly legible

duplicate originals or certified true
copies of award, judgment, order,
resolution, ruling subject
5. certification against forum shopping
6. pay docket and lawful fees, 500 for

costs
7. serve copy upon adverse party or

parties and the court
61

8. service and filing to be done

personally, with explanation if not
done personally
by the lower courts in the exercise

of its jurisdiction
Same principle in certiorari:
MTC to RTC- 60 days
RTC to CA- 60 days
General rule:
CA to SC- 60 days
Certiorari is not a substitute for lost appeal

Except:
65 vs 45 (simplified)
denial of due process
appeal is not a remedy

o
no appeal or no plain,
speedy, adequate remedy
court without jurisdiction
Rule 65
60 days
Motion
for
reconsideration
required
Questions
of
jurisdiction
SC, CA, RTC
Special civil action
Rule 45
15 Days
Not
Questions of law
SC
Mode
appeal/petition
review
of
for
Rule 65 as amended by Am 7-7-12:

-
when deprived of substantial rights

Sec. 4. When and where to file the
petition.
Note: in the cases, in event of denial of

petition, and in exercise of original
jurisdiction, remedy is APPEAL
MTC to RTC- Rule 40
RTC to CA- Rule 41 (original), Rule 42
(appellate)
The petition shall be filed not later than

sixty (60) days from notice of the
judgment, order or resolution. In case a
motion for reconsideration or new trial
is timely filed, whether such motion is
required or not, the petition shall be
filed not later than sixty (60) days
counted from the notice of the denial
of
the
motion.
CA to SC- Rule 45
The above-stated is the PRINCIPLE OF
HIERARCHY OF COURTS
-
superior courts would not take

cognizance of a case brought before
it unless the case has been decided
If the petition relates to an act or an

omission of a municipal trial court or
of a corporation, a board, an officer or
a person, it shall be filed with the
Regional
Trial
Court
exercising
jurisdiction over the territorial area as
defined by the Supreme Court. It may
also be filed with the Court of Appeals
62

or with the Sandiganbayan, whether or

not the same is in aid of the courts
appellate jurisdiction. If the petition
involves an act or an omission of a
quasi-judicial
agency,
unless
otherwise provided by law or these
rules, the petition shall be filed with and
be cognizable only by the Court of
Appeals.
In election cases involving an act or an
omission of a municipal or a regional trial
court, the petition shall be filed exclusively
with the Commission on Elections, in aid of
its appellate jurisdiction.
NO MORE EXTENSION OF TIME IS GIVEN TO

FILE CERTIORARI!
M4R based on
Rule 65
Of
interlocutory
order,
as
preparation to file
certiorari
M4R based on
Rule 37
Of final judgment or
final
order,
not
including
interlocutory orders
QUO WARRANTO (Rule 66)

-
proceeding or writ issued by the

court to determine the right to the
use or exercise of an office, position
or franchise and to oust the person
holding or exercising such office,
position or franchise if his right is
unfounded or if he had forfeited his
right to enjoy the privilege
2. dissolution of a de facto corporation
Rule 66 S1
An action for usurpation of a public office,
position, or franchise may be commenced
by a verified petition brought in the name
of the Republic of the Philippines against:
a. a person who usurps, intrudes into,
or unlawfully holds or exercises a
public office, position, or franchise
b. a public officer who does or suffers

an act which by provision of law
constitutes a ground for the
forfeiture of his office
c. an association which acts as a

corporation within the Phils without
being
legally
incorporated
or
without lawful authority to act
*Sol Gen commences action (S2, S3)
Period: (S11)
Within 1 YEAR
after cause of ouster or right of

petitioner to hold such office, or
position arose
Within 1 YEAR (action for damages)

-
after entry of judgment establishing

petitioners right to the office in
question
in short...
2 kinds of quo warranto:
1. usurpation of public office
within 1 YEAR from usurpation of public

office
REMEDY IF DENIED: Appeal
63

A3 S9
Jurisdiction and Venue:
Private property shall not be taken for

public use without payment of just
compensation
RTC, CA, SC
If Solicitor General files- RTC, CA, SC
If other person files- R4 S1 R4 S2
Quo Warranto
Election Code
Election Code
COMELEC, RTC. MTC
Omnibus
Election
Code
Not
Can be filed with
MTC
Contest
right
of
elected
public
officer to hold public
office
Ineligibility
or
disqualification
of
person elected to
hold the office
Within 10 days after
proclamation
of
candidate
Filed by any voter
Jurisdiction: RTC, incapable of pecuniary

estimation (BP129)
Quo Warranto
Rule 66
Rules of Court
RTC, CA, SC
Basis: A8 Consti,
R66
Subject to BP129
Cannot be filed with
MTC
Show title to public
office or exercise
public franchise
Usurpation,
forfeiture,
association
illegal
Within 1 year from

usurpation of office
Filed by government
or person entitled to
the office
Venue: Where the property is located

Basis: (action involving title to or real
property under R4 S1)
CANNOT BE FILED WITH SC, because under
EO jur of RTC
NOTE: Expropriation is an instance where

multiple appeals are filed (30 day record on
appeal in case of multiple appeal)
Why? 3 orders issued under Rule 67:
1. order of compensation
2. order of expropriation
3. final order of just compensation
Remedy of person after expropriation,

no payment made:
Expropriation (Rule 67)
Eminent Domain- right and authority of
the State to acquire private property for
public use upon observance of due process
and payment of just compensation
Expropriation- procedure to be observed
in the exercise of the right of eminent
domain
recover property from expropriator

within 5 years after non payment
FORECLOSURE OF MORTGAGE (Rule

68)
(Tan, Handbook on Civil Procedure and
pleadings, pp 142-145)
Foreclosure
action by which a mortgagee or

pledge or any other lien holder cuts
64

off the right of debtor whose

property is pledged, because of
default in meeting the obligation
Foreclosure of Mortgage
-
termination of all the rights of the

mortgagor in the property covered
by the mortgage
Nature of Action:
-
QUASI IN REM
Service of summons by publication
Jurisdiciton/Venue:
MTC-RTC 20-50 OMM MM lower higher
Where real property or portion thereof is
situated (R4 S1)
Manner of foreclosure of mortgage:

Rule 68 S1
Contents of action:
1. date
and
mortgage
Classification of Foreclosure of Mortgage:

due
execution
of
1. JUDICIAL FORECLOSURE
To have the property seized and sold by
the court order to the end that the
proceeds thereof be applied to payment of
plaintiffs claim
2. assignments, if any
2. EJ FORECLOSURE
3. names and residences of mortgagor
and mortgagee
4. description of mortgaged property
5. statement of date of the note or

other documentary evidence of the
obligation secured by the mortgage
Possession of property sold may be given

to purchaser by sheriff after the period of
redemption had expired, unless there is a
third person actually holding the property
adversely to the mortgagor
Remedies of Mortgagee in case of default

of mortgagor/waiver of right to foreclose:
a. Judicial or extrajudicial foreclosure
of mortgage
6. amount
thereon
claimed
to
be
unpaid
b. Filing of ordinary action to collect
debt
7. names and residences of all persons

having of claiming interest in the
property subordinate in right to that
of the holder of the mortgage, all of
whom shall be made defendants in
the action
Here, under b, deemed to have

waived his right to proceed against
the property in a foreclosure
proceeding
65

2. Partial- when some of the things

Right of
Redemption
Exists
in
EJ
foreclosure
By mortgagee within
1
year
from
registration of the
sale in the Office of
the
Registry
of
Deeds
Equity of
Redemption
Exists
in
J
foreclosure
By mortgagor during
not less than 90
days nor more than
120 days from entry
of
judgment
or
foreclosure or even
after
foreclosure
sale
but
before
judicial confirmation
of the same
J Foreclosure, no right of redemption,

except only if morgagee is a bank
are divided, the rest remaining in

community ownership
3. Provisional- when it is temporary

or conditional, until a
definite division is made
final
or
4. Definite-
when
the
resulting
division is permanent, final, and
absolute
5. Judicial- takes place when court

intervenes
petition
and
approves
the
PARTITION (Rule 69)

-
Separation, division, assignment of

a thing held in common among
those to whom it may belong
Classes of partition:
1. Voluntary- division of property by

the act of the parties themselves
2. Compulsory- partition by judicial

proceedings at the instance of one
or more of the co tenants without
regard to the wishes of the other co
tenants
6. Extrajudicial-
division may be
made by testator himself or by
some person named by deceased or
amicably by interested heirs by
common agreement (Rule 74 S1)
R69 S1
A person having the right to compel
partition of real estate may do so as
provided in this Rule, setting forth in his
complaint the nature and extent of his title
and an adequate description of the real
estate of which partition is demanded and
joining as defendants all other persons
interested in the property
Covers: REAL or PERSONAL PROPERTY
Jurisdiction/Venue:
Kinds of Partition
1. Total- all the things are divided

among the participants
MTC RTC 20-50 300-400 OMM MM lower

higher
R4 S1 R4 S2
66

In case of adverse resolution:

MULTIPLE APPEALS- 30 day record on
appeal (R69 S2)
Why? (tingin ko lang)
Orders under Rule 69:
Ejectment- form of action by which

possessory
titles
to
corporeal
hereditariments
may
be
tried
and
possession obtained which lies to regain
possession of real property, with damages
for illegal detention
2 kinds: FE and UD
1. Order of partition
2. Order of accounting
NOTE: Partition is one mode of settlement

of estate of the deceased (relate to R7577)
FORCIBLE ENTRY AND UNLAWFUL

DETAINER (Rule 70 in relation to Rules
on Summary Procedure)
Forcible Entry
Person in physical
possession of land
was
deprived
of
possession through
FISTS
Unlawful ab initio
Not require demand
to vacate
Prove
prior
possession
until
deprived
1 y from date of
actual entry on land
Unlawful Detainer
Withholding by a
person of possession
of land or building
Legal but becomes
illegal
Pay AND vacate;
jurisdictional
No need to prove
prior
physical
possession
1 year from date of
last demand
(issue is that of possession)

Real Action + Action in personam- involves
possession of real property, binding upon
the parties
Filed by: R70 S1

Person deprived of possession of land or
building by FISTS, or lessor, vendor,
vendee, other person against whom
possession of any land or building is
unlawfully withheld
NOTE: 3 kinds of recovery of real property
1. Accion
interdictalsummary
action for recovery of physical
possession of the property where
dispossession has lasted for more
than 1 year; FE or UD
Jurisdiction/Venue:
MTC of the place where property or portion
thereof is situated (R4 S1)
Proceedings SUMMARY IN NATURE! (Rules
on Summary Procedure)
2. Accion publiciana- plenary action

for recovery
POSSESSION
of
real
right
of
3. Accion reivindicatoria- action for
Pertinent Provisions of the Rules on

Summary Procedure:
(note the same... applies to all cases
subject to Rules on Summary Procedure,
recovery of OWNERSHIP
67

ESPECIALLY PROHIBITED PLEADINGS AND

MOTIONS)
S3- Pleadings
The only pleadings allowed to be filed are

the:
1. Complaints
2. Compulsory counterclaims
3. Cross claims pleaded in the answer
4. Answers thereto
VERIFIED!
S4- Duty of the Court

After the court determines that the case
falls under summary procedure, it may,
from an examination of the allegations
therein and such evidence as may be
attached thereto, dismiss the case outright
on any of the grounds apparent therefrom
for the dismissal of a civil action. If no
ground for dismissal is found it shall
forthwith issue summons which shall state
that the summary procedure under this
Rule shall apply.
S5- Answer
Within 10 days from service of summons,
the defendant shall file his answer to the
complaint and serve a copy thereof on the
plaintiff. Affirmative and negative defenses
not pleaded therein shall be deemed
waived, except for lack of jurisdiction over
the subject matter.
Cross claims and
compulsory counterclaims not asserted in
the answer shall be considered barred.
The answer to counterclaims or cross
claims shall be filed and served within 10
days from service of the answer in which
they are pleaded.
Within 10
summons
DAYS
Rule 70
Summ Pro
from
service
of
S6- Effect of Failure to answer

Should the defendant fail to answer the
complaint within the period above
provided, the court, motu proprio or on
motion of the plaintiff, shall render
judgment as may be warranted by the facts
alleged in the complaint and limited to
what is prayed for therein.
Provided,
however, that the court may in its
discretion reduce the amount of damages
and AF claimed for being excessive or
otherwise unconscionable. This is without
prejudice to applicability of R15 S4 of the
Rules of Court, if there are 2 or more
defendants.
S7- Preliminary conference; appearance of

parties
Not later than 30 days after the last answer
is filed, a preliminary conference shall be
held. The rules on pre trial in ordinary
cases shall be applicable to the preliminary
conference unless inconsistent with the
provisions of this Rule.
The failure of the plaintiff to appear in the

preliminary conference shall be cause for
dismissal of the complaint. The defendant
who appears in the absence of plaintiff
shall be entitled to judgment on his
counterclaim in accordance with S6 hereof.
All cross claims shall be dismissed.
If a sole defendant shall fail to appear, the

plaintiff shall be entitled to judgment in
accordance with S6 hereof. This Rule shall
not apply where one of 2 or more
defendants sued under a common cause of
action who had pleaded a common defense
shall appear at the preliminary conference.
68

S8- Record of Preliminary Conference

Within 5 days after the termination of the
preliminary conference, the court shall
issue an order stating the matters taken up
therein, including but not limited to:
a. Whether the parties have arrived at
an amicable settlement, and if so,
the terms thereof
b. The stipulations or admissions

entered into by the parties
c. Whether, on the basis of the

pleadings and the stipulations and
admissions made by the parties,
judgment may be rendered without
the need of further proceedings, in
which effect the judgment shall be
rendered within 30 days from
issuance of the order
d. A clear specification of material

facts which remain controverted
e. Such other matters intended to

expedite the disposition of the case
S9- Submission of affidavits and position

papers
Within 10 days from receipt of the order
mentioned in the next preceding section,
the parties shall submit the affidavits of
their witnesses and other evidence on the
factual issues defined in the order,
together with their position papers setting
forth the law and the facts relied upon by
them.
S10- Rendition of judgment
Within 30 days after receipt of the last

affidavits and position papers, or the
expiration of the period for filing the same,
the court shall render judgment.
However, should the court find it necessary

to clarify certain material facts, it may,
during the said period, issue an order
specifying the matter to be clarified, and
require the parties to submit affidavits or
other evidence on the said matters within
10 days from receipt of said order.
Judgment shall be rendered within 15 days
after the receipt of the last clarificatory
affidavits, or the expiration of the period
for filing the same.
The court shall not resort to the

clarificatory procedure to gain time for the
rendition of the judgment.
S18- Referral to Lupon

Cases requiring referral to the Lupon under
the provisions of PD1508 where there is no
showing
of
compliance
with
such
requirement, shall be dismissed without
prejudice and may be revived only after
such requirement shall have been complied
with.
S19- Prohibited pleadings and motions

The following pleadings, motions, or
petitions shall not be allowed in the cases
covered by this Rule:
a. Motion to dismiss the complaint or
to
quash
the
complaint
or
information except on the ground of
lack of jurisdiction over the subject
matter, or failure to comply with the
preceding section
b. Motion for a bill of particulars
69

c. Motion for new trial, or for

reconsideration of a judgment, or
for opening of trial
A violation of this requirement may subject

the party or the counsel who submits the
same to disciplinary action, and shall be
cause to expunge the inadmissible affidavit
or portion thereof from the record.
d. Petition for relief from judgment

S21- Appeal
e. Motion for extension of time to file
pleadings, affidavits, or any other
paper
f.
Memoranda
g. Petition for certiorari, mandamus, or

prohibition against any interlocutory
order issued by the court
The judgment or final order shall be

appealable to the appropriate RTC which
shall decide the same in accordance with
S22 of BP129. The decision of the RTC in
civil cases governed by this Rule including
forcible entry and unlawful detainer, shall
be immediately executor, without prejudice
to a further appeal that may be taken
therefrom. S10 of Rule 70 shall be deemed
repealed.
h. Motion to
default
declare
defendant in
15 DAYS from notice of judgment or

final order, notice of appeal + bond
to RTC
o
i.
Dilatory motions for postponement
j.
Reply
(prohibited
However, if RTC decision adverse, (in

exercise of appellate jurisdiction), M4R
pwede na
-
MTC Summary Procedure, only up

to MTC level lang
k. Third party complaints
l.
NO
M4R
pleading)
Interventions
Once the case was elevated

to RTC, it is no longer
summary, but is governed
by rules on Ordinary Civil
Actions
S20- Affidavits
The affidavits required to be submitted
under this Rule shall state only facts of
direct personal knowledge of the affiants
which are admissible in evidence, and shall
show their competence to testify to the
matters stated therein.
Injunction in FE and UD:
Forcibly Entry / UnlawFul Detainer- YES

R70 S15
70

Court may grant preliminary injunction, in

accordance with the provisions of R58
thereof, to prevent defendant from
committing further acts of dispossession
against plaintiff.
A possessor deprived of possession
through Fe or UD may, within 5 days from
filing of complaint, present a motion in the
action for FE UD for issuance of writ of
preliminary mandatory injunction to restore
him in his possession. The court shall
decide the motion within 30 days from
filing thereof
or prejudice parties litigant or their

witnesses during litigation
2 classifications of contempt:
1. Direct Contempt (R71 S1)
2. Indirect Contempt (R71 S2)
DISCUSSION:
1. DIRECT CONTEMPT (S1)
R70 S20
Upon motion of plaintiff, within 10 days
from perfection of appeal to the RTC, the
latter may issue a writ of preliminary
mandatory injunction to restore plaintiff in
possession if the court is satisfied that
-
defendants appeal is frivolous or

dilatory, or
that the appeal of plaintiff is prima

facie meritorious
CONTEMPT (Rule 71)
A remedy
Acts covered:
-
Misbehaviour in presence of or so
near the court as to obstruct or
interrupt proceedings before the
same
Disrespect toward the court
Offensive
personalities
people in court
Refusal to be sworn or to answer as

a witness
Refusal to subscribe an affidavit or

deposition when lawfully required to
do so
towards

Contempt
-
wilful disregard or disobedience to

court, acting in opposition to
authority, justice, dignity
Contempt of Court
-
conduct which tends to bring

authority and administration of law
into disrespect or to interfere with
Punishment:
(RTC/of equivalent or higher rank)
F: not exceeding 2k OR
71

I: not exceeding 10 days, OR BOTH
person adjudged to be
entitled thereof
(lower court)
Note highlighted: case in MTC
where case is pending
F: not exceeding 200

I: not exceeding 1 day, OR BOTH
If after ejectment, re entered the

property, indirect contempt (relate
to Rule 70)
Remedy: CERTIORARI or PROHIBITION (R71

S2)
2. INDIRECT CONTEMPT (S3)
c. Any abuse of or any unlawful

interference
with
the
processes or proceedings of
the court not constituting
direct contempt as under S1
Main / Original action

o
Can be filed in RTC or MTC
Actions covered:
a. Misbehaviour of an officer of
a court in the performance
of his official duties or in his
official transactions
b. Disobedience
of
or
resistance to a lawful writ,
process, order, judgment of
a court, including act of
person who, after being
dispossessed or ejected
from any real property by
the judgment or process
of
any
court
of
competent
jurisdiction,
enters or attempts or
induces another to enter
into or upon such real
property, for the purpose
of executing acts of
ownership or possession,
or in any manner disturbs
possession given to the
d. Improper conduct tending,

directly or indirectly, to
impede, obstruct, degrade
administration of justice
e. Assuming to be an attorney
or officer of the court and
acting as such without
authority
f.
Failure to obey subpoena

duly served
g. The rescue, or attempted

rescue, of a person or
property in the custody of an
officer by virtue of an order
or process of a court held by
him
Remedy: (R71 S11)
Appeal to proper court as in criminal cases
72

Direct Contempt
In presence of a
judge, motu proprio
or upon motion
Cant initiate
In presence or so
near judge
Rem: certiorari
remedy
Indirect Contempt
Only from the time of filing such notice for

record shall
a purchaser,
Initiate
Not in presence of
judge, disobey court
order
Rem: appeal
Original action
or encumbrancer
of the property affected thereby,
be deemed to have constructive notice of
the pendency of the action, and
only its pendency against the parties
designated by their real names
Upon filing of complaint, plaintiff may opt

to file notice of lis pendens with the
register of deeds
The notice of the lis pendens hereinabove

mentioned
may be cancelled
Notice of Lis Pendens
only upon order of the court,
buyer beware
after proper showing that
Notice to buyer of existence of an

adverse claim
the notice is for the purpose of molesting

the adverse party, or
It is not a pleading
that it is not necessary to protect the rights

of the party who caused it to be recorded
There is need to register it with the

register of deeds
FILING AND SERVICE of the

pleading
Rule 13
Section 14
In an action affecting the title or the right
of possession of real property, the plaintiff
and the defendant, when affirmative relief
is claimed in his answer, may record in the
office of the registry of deeds of the
province in which the property is situated
Differentiate: Filing from service

R13 S2
Filing is the act of presenting the
pleading or paper to the clerk of
court.
a notice of the pendency of the action
Service is the act of providing a party

with a copy of the pleading or paper
concerned.
Said notice shall contain the names of the

parties and the object of the action or
defense, and a description of the property
in that province affected thereby
What are the papers required to be

filed and served under Rule 13?
73

(PAMNOJDORS)
By leaving the copy between the

hours of 8 in the morning and 6 in
the evening at the partys or
counsels residence, if known, with
a person of sufficient age and
discretion then residing therein
Pleading subsequent to the

complaint
Appearance
Written Motion
NOTE: NO TENDERING under Rule 13 S6!
Notice
Sa summons lang yon, when

defendant refuses to accept the
same
Order
Judgment
Demand
Offer of judgment
Resolution
Similar papers
Service by mail
R13 S7
Service by registered mail shall be made
by
depositing the copy in the post
office,
What are the modes of service of

pleading? (R13 S5)
in a sealed envelope
Personal Service (R13 S6)
plainly addressed to the party or his

counsel at his office, if known,
Service by Registered Mail (R13 S7)
otherwise, at his residence, if

known,
Substituted Service (R 13 S8)
with postage fully prepaid and with

instructions to the postmaster to
return the mail to the sender after
10 days if undelivered
How is it done?
Personal Service
R13 S6
Service of papers may be made
By delivering personally a copy to
the party or his counsel or
By leaving it in his office with the
clerk or 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,
If no registry service is available in the

locality of either in the sender or the
addressee, service may be done by
ordinary mail.
IF defendant refuses both modes of

service, resort to:
Substituted Service
R13 S8
74

If service of pleadings, motions, notices,

resolutions, orders, or other papers cannot
be made under the 2 preceding section,
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.
2. The pleading/paper would not be

admissible in court
3. Would not toll the running of the
reglementary period
4. In case of defendant, it will NOT
RESULT in defendant being declared
in default
5. Rather, the pleading produces no
legal effect
When is service deemed completed?

Note: Wag ipaghalo ang provisions ng Rule
13 and Rule 14!!!
Effect of non compliance with personal

service?
Note: Service other than personal service
R13 S11
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.
Personal Service (R13 S10)

Personal service is complete upon actual
delivery or by handling a copy to
defendant
Service by mail (R13 S10)
Service by ordinary mail is complete upon
the expiration of 10 days after
mailing, unless the court otherwise
provides.
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 date is earlier.
Substituted Service (R13 S8)
Substituted service is complete at the
time of delivery of the copy to the
clerk of court, with proof of failure of
both personal service or service by
mail.
State in detail: Effects

1. A violation of this rule may be cause
to consider the paper as not filed
(R13 S11)
What is constructive service of

pleading?
R13 S10
Service by registered mail is complete..
75

..after 5 days from the date he received the

notice of the postmaster, whichever date is
earlier
FILING- Rule 13 S1- with the office with the

clerk of court
Required in ALL INITIATORY
PLEADINGS
+ PAYMENT OF THE REQUISITE DOCKET
FEES (See Rule 1 Section 5)
Pag kulang, court to order correct
payment
NOTE: Docket fees are suspended in
compulsory counterclaims (SC
Resolution 9-21-04)
IF you cannot pay docket fees,

REMEDY?
File a motion to be declared as
pauper litigant (R3 S21)
R3 S21- A party may be authorized to
litigate his action, claim, or defense as an
indigent if the court, upon an ex parte
application and hearing, is satisfied that
the party is the one who has no money or
property sufficient and available for food,
shelter, and basic necessities for himself
and his family
Such authority shall include
which the court may order to be furnished

him
The amount of docket and other lawful fees
which the indigent was exempted from
paying
-
shall be a lien on any judgment

rendered in the case favorable to
the indigent,
o
unless the court otherwise

provides
Any adverse party

may contest the grant of such authority
at any time before the judgment is
rendered by the trial court
If the court should determine after hearing
that the party declared as an indigent is in
fact a person with sufficient income or
property,
the proper docket and other lawful fees
shall be
assessed and collected by the clerk of
court
If payment is not made within the time
fixed by the court,
execution shall issue or the payment
thereof,
without prejudice to such other sanctions
as the court may impose
an exemption from payment of

-
docket and
other lawful fees, and
of transcript of stenographic notes
After filing of the complaint and the

payment of the requisite legal fees,
III. SERVICE OF SUMMONS
76

Summons
Writ or process in the name of the
RP, issued by the Branch clerk of
court informing the defendant of
the filing of the case against him, to
file an answer within the
reglementary period, or else, be
declared in default
Office of the Clerk
of Court
Branch Clerk of
Court
Office
Person
Receives complaint
and payment of the
docket fees
Serves summons
upon the defending
party
2 kinds of summons:
1. Original Summons- issued by the
branch clerk of court to the
defendants upon the filing of the
complaint and the payment of the
requisite docket fees
2. Alias Summons- issued by the

branch clerk of court upon motion of
the plaintiff in case the summons
are lost, destroyed, improperly
served, or there is defect in the
manner or form of service
Summons
Subpoena
a writ or a process
issued to a
defending party by
the clerk of court,
delivered by a
sheriff, his deputy,
or proper court
office, or any
suitable person
(R21 S1)
A process directed
to a person
requiring him to
attend and to testify
at the hearing or
trial of an action, or
at any investigation
authorized by the
court issuing the
summons, with the
purpose of obtaining
jurisdiction over the
person of the
defendant and
giving him notice
that an action has
been commenced
against him
conducted by
competent authority
or for the taking of
his deposition.
(Subpoena ad
testificandum)
Purpose is to obtain
jurisdiction over
person of
defendant, and to
give notice to
defendant that an
action has been
commenced against
him, ordering
defendant to answer
the complaint within
the time fixed by
these Rules, and
unless defendant
answers, plaintiff
will take judgment
by default and may
be granted the relief
applied for (R14 S2)
Order for a person

to appear and to
testify at a hearing,
action, investigation,
or for taking of his
deposition OR to
produce books,
documents, or other
things under his
control (R21 S1)
Served on the
defendant
May be served to a
non-party
Does not need

tender of
kilometrage and
other fees
Needs tender of
kilometrage,
attendance fee, and
reasonable cost of
production fee
Original or alias
Ad testificandum or
A process directed
to a person
requiring him to
bring with him any
books, documents,
or other things
under his control
(Subpoena duces
tecum)
77

duces tecum
Upon filing of the
complaint and
payment of requisite
docket fees
During trial or
investigation
Note: significant to know whether the

action is in personam, in rem, or quasi in
remfor purpose of service of summons
FE and UD- in personam actions
IN PERSONAM
Service in person
Substituted service
IN REM
Service in person
Substituted Service
Service in person on defendant

(R14 S6)
The summons shall be served by handing a
copy thereof to the defendant in person.
Tendering summons to
defendant (R14 S6)
In case defendant refuses to receive or sign
for it, by tendering it to him, done through:
1. Leaving copy of the summons to the
defendant who refuses to receive it
2. The officer serving the summons

shall make an affidavit addressed to
the court stating that the time,
place, manner of service of
summons, and that despite efforts
to try and serve the summons in
person on defendant, the same
refused to receive it, as well as the
manner of non-receipt
Publication
Extraterritorial Service
QUASI IN REM
Service in person
Substituted service
Publication
Can you serve summons by mail?

NO
Substituted Service of
Summons on defendant (R14
S7)
Requisites;
Impossibility of the personal service
of summons within a reasonable
time
The efforts exerted to locate the
person to be served
To whom served / how?
By leaving copies of the summons at:
How to serve summons?
1. Defendants residence with some

person of suitable age and
discretion then residing therein or
78

2. By leaving the copies at defendants

office or regular place of business
with some competent person in
charge thereof
2. When defendant does not reside

and is not found in the Philippines,
and the action: (AREAR14 S15)
Through process server or upon motion- by

service of summons by substituted service
Affects personal status of the

plaintiff or
How is a person deemed of suitable

age and discretion?
Relates to, or the subject of which,

is property within the Philippines in
which 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
1. Of legal age
2. With sufficient knowledge and
comprehension that what he is
receiving on behalf of defendant are
summons notifying defendant that a
suit was brought against the same,
AND PREFERABLY KNOWS HOW TO
SPEAK ENGLISH
Service by publication in a
newspaper of general
circulation
R14 S15
Service by leave of court by publication in a
newspaper of general circulation in such
place 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.
Suffices under the following instances:

1. Upon defendant designated as
unknown owner or the like, or
whenever his whereabouts are
unknown and cannot be ascertained
by diligent inquiry (R14 S14)
3. When defendant ordinarily resides

in the Philippines but who is
temporarily out of it (R14 S16)
Can there be personal service of

summons in in rem actions?
Yes. R14 S15 states that when 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 defendant has or
claims a lien or interest, actual or
contingent, or in which the relief demanded
consists, wholly or in part, in excluding
defendant from any interest therein, or the
property of defendant has been attached
within the Philippines, service may, by
leave of court, be effected out of the
Philippines by:
1. Personal service as under S6**
79

2. 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
defendant, or
3. In any other manner the court may

deem sufficient
Substituted Service vs Extraterritorial

Service of Summons
Substituted
Service
Extraterritorial
Service
Requisites;
Arises in case
defendant is non
resident, in abroad,
action in rem, by
way of personal
service outside of
Phils, by publication
in a newspaper of
general circulation,
or in any other
manner the court
may deem sufficient
Impossibility of the
personal service of
summons within a
reasonable time
The efforts exerted
to locate the person
to be served
To whom served /
how?
business with some

competent person in
charge thereof
Through process
server or upon
motion- by service
of summons by
substituted service
R14 S14
In any action where the defendant is
designated as an unknown order, 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.
-
Instance where in personam, yet

publication is allowed (exception to
the general rule)
o
Identity is unknown or
whereabouts are unknown
Defective service of summons, remedy:
By leaving copies of
the summons at:
M2D Rule 16 S1a, that the court has no

jurisdiction over the person of the
defending party
Defendants
residence with some
person of suitable
age and discretion
then residing
therein or
3 options of the court:
By leaving the
copies at
defendants office or
regular place of
1. GRANT M2D- as plaintiff, refile the

case, unless tainted with grave
abuse of discretion
80

2. DENY M2D
As defendant, following Rule 16 S4, I will
file an answer within the balance of the
period prescribed by Rule 11 to which I am
entitled at the time of serving my motion,
but not less than 5 days in any event,
computed from my receipt of notice of
denial. Then proceed with the trial, and
when the decision is adverse against me, I
will file an appeal assigning as error the
denial of the motion to dismiss. And when
the denial is tainted with grave abuse of
jurisdiction on the part of the court, I will
file for certiorari under Rule 65.
R14 S8
When persons associated as an entity
without a 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.
Upon Prisoners
3. ISSUANCE OF ALIAS SUMMONS
Can Rule 16 S1a be a ground for Motion to

dismiss under Rules on Summary
Procedure?
YES. General rule, motion to dismiss not
allowed, except #1 instance, lack of
defending party (RULES ON SUMMARY
PROCEDURE)
Reason: the court cannot proceed with the
case without jurisdiction over the person of
the defending party
Exception to exception: SMALL CLAIMS
To whom summons are made?
R14 S9
When defendant is a prisoner confined in a
jail or institution, service may be effected
upon him by the officer having the
management of such jail or institution
who is deputized as a special sheriff
for said purpose.
Upon Minors and Incompetents

R14 S10
When defendant is a minor, insane, or
otherwise an incompetent, service shall be
made upon him personally or 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 case of a minor,
service shall be made on his father or
mother.
1. Ordinary defendant
Upon domestic private juridical
entity
Upon an entity without juridical
personality
R14 S11
81

When the defendant is a corporation,

partnership, or association organized under
the laws of the Philippines without a
juridical personality, service may be made
on the President, Managing Partner,
General Manager, Corporate
Secretary, Treasurer, or In House
Counsel
NOTE: the LIST IS EXCLUSIVE!!!!!
Service upon foreign private
juridical entity
In any action where the defendant is

designated as an unknown order, 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
circulation and in such places and for
such time as the court may order.
Extraterritorial Service
R14 S12
R14 S15
When the defendant is a foreign private

juridical entity which has transacted
business in the Philippines, service may be
made on its resident agent designated in
accordance with law for that purpose, or, if
there be no such agent, on the government
official designated by law to that effect, or
on any of its officers or agents within the
Philippines.
When the defendant does not reside and is

not found in the Philippines, and the action
affects the personal status of 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
party, in excluding 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 S6; or by
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.
Service upon public

corporations
R14 S13
When the defendant is the Republic of the
Philippines, service shall be made on the
Solicitor General; in case of a province,
city or municipality, or like public
corporations, service may be effected on
its executive head, or on such other
officer or officers as the law or the
court may direct.
Service upon defendant whose

identity or whereabouts are
unknown
Upon residents temporarily out

of the Philippines
R14 S14
R14 S16
82

When any action is commenced against a

defendant who ordinarily resides within the
Philippines, but who is temporarily out of it,
service may, by leave of court, be also
effected out of the Philippines, as
under the preceding section.
If summons cannot be served because non

resident, unknown, or out of the Phils, as
plantiff, what is your remedy?
Convert action in personam to quasi in rem
A vs B Corporation, action for sum of
money. Amend the complaint, action for
sum of money WITH ATTACHMENT OF
PROPERTY. Hence, summons by
publication can already be made.
Court acquires jurisdiction over the
RES
Because nature of the case has
become quasi in rem
4. With respect to fourth party

complaint, serve upon 4th party
defendant (relate to R6 S11)
NOT in:
1. Complaint in intervention- because
third person submitted to
jurisdiction of the court
2. Not in permissive counterclaimbecause defendant aka original

plaintiff is already a party to the
action, jurisdiction over him in
original complaint was already
taken from the start
3. In case of formal not substantial

amendments
May bayad ba summons?

(relate to Rule 10)
As far as amendment of the pleading, is
summons required to be served?
YES, in the following instances:
WALA!
Pag pinaserve mo sa process server,
meron, but not required (abutan mo na
lang para hindi kawawa, sige ka, baka hindi
i serve)
1. Substantial not merely formal

amendment
Relate Rule 14 to Rule 57
2. Other parties are impleaded
Order of attachment, writ of

attachment, issued ex parte
To implement, serve summons
3. With respect to third party

complaint, serve upon third party
defendant (relate to R6 S11)

Ex parte issuance of preliminary
injunction
83

To implement, serve summons
Court not to issue injunction unless there is

invalid service of summons
Notice and hearing
Rule 9 S1 (relate to Rule 16) provides for

the following instances when the court may
dismiss a case motu proprio:
Lack of jurisdiction over the subject
matter
Litis pendencia
Res judicata
EXCEPTION TO SERVICE OF SUMMONS:

Voluntary appearance
1. Filed responsive pleading
Prescription
DOES NOT INCLUDE: lack of jurisdiction
over the person of the defending party
(Wala to!)
2. Submitted to jurisdiction of the

court,
After service of summons,
EXCEPT:
When questioning the jurisdiction of

the court
Rule 14 S20
S20- Voluntary appearance
The defendants voluntary appearance
shall be equivalent to service of summons.
The inclusion in a motion to dismiss of
other grounds aside from lack of
defendant shall not be deemed a voluntary
appearance.
Can the court dismiss a case motu

proprio for lack of jurisdiction over the
person of the defending party for
defective service of summons?
IV. REFER TO THE FOLLOWING:
Motion to Dismiss (Rule 16)
Motion for Bill of Particulars (Rule

12)
Motion to amend the pleading (Rule

10)
Motion for Extension of Time to File

Responsive Pleading (Rule 11)
Motion for Summary Judgment (Rule

35)
NO!
Dismissal shall only be by MOTION!
Motion to dismiss
Order of Default/Judgment by
Default (Rule 9)
84

appearance is to question the jurisdiction

of the court
ONE-AT-A-TIME,
A. MOTION TO DISMISS (Rule 16)
GRANTED:
Refile
Move for alias summons
Motion to dismiss
A motion to dismiss in an
application for relief filed by an
original defendant, a defendant in a
permissive counterclaim, cross
claim, 3rd 4th etc party complaint,
complaint in intervention, filed
within the time for but before filing
the answer to the complaint or
pleading asserting a claim
After service of summons, before
filing of a responsive pleading
NOTE: Motion to dismiss is not a pleading!
It is not a responsive pleading! Hence, if
there is motion to dismiss, the complaint
may still be amended as a matter of right
even if there is a motion to dismiss!
Grounds for motion to dismiss:
DENIED:
period prescribed by Rule 11 to which
entitled at the time of serving motion, but
not less than 5 days in any event,
computed from receipt of notice of denial.
Then proceed with the trial, and when the
decision is adverse, file an appeal
assigning as error the denial of the motion
to dismiss. And when the denial is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction on the part
of the court, file for certiorari under Rule
65.
b. That the court has no

jurisdiction over the subject
matter of the claim
NOTE:
Rule 16 S1 states that within the time for

but before filing the answer to the
complaint or pleading asserting a claim, a
motion to dismiss may be made on basis of
the following grounds:
a. That the court has no
jurisdiction over the person of
the defending party
Relate to R14
Jurisdiction over defendant may be
acquired by: voluntary appearance or by
valid service of summons, except if
Subject matter (BP129- conferred

by law)
Exclusive original jurisdiction of
courts, if not within, then M2D is
proper
GRANTED:
-
Refile + docket fees OR
Amend complaint to confer

jurisdiction (no need for docket
fees)
DENIED:
85


65.
c. That venue is improperly laid

Note: Rule 4
DENIED:
65.
e. That there is another action

pending between parties for the
same cause
GRANTED:
Refile, except if GAD, then certiorari
Rule 65
DENIED:
65.
d. That plaintiff has no legal

capacity to sue
aka LITIS PENDENCIA

Elements:
1. Identity of parties or at least such
parties representing the same
interests in both actions
2. That there is substantial identity in

the cause of action and in the relief
sought, the relief being founded on
the same facts
3. Identity in the two cases would be

such that any judgment that may
be rendered in one, regardless of
which party is successful, would
amount to res judicata in the other
case
GRANTED:
Refile
86

Which should be dismissed in case of

litis pendencia? The 1st, 2nd, 3rd, 4th
action?
Jurisdiction over the subject matter

and the parties by the court
rendering it
The later case(s) would be dismissed.
GRANTED:
Appeal
There must be identity of the

parties, of subject matter, and of
cause of action between the first
and second actions
DENIED:
65.
f. That the action is barred by

prior judgment or by the statute
of limitations
Aka RES JUDICATA
Elements:
There is previous final judgment or
order
The previous final judgment is a

judgment upon the merits
Aka PRESCRIPTION
GRANTED:
Appeal
DENIED:
65.
g. That the pleading asserting the

claim states no cause of action
Aka FAILURE TO STATE CAUSE OF ACTION
GRANTED:
Refile
Amend the pleading
87

DENIED:
65.
h. That the claim or demand set

forth in the plaintiffs pleading
has been paid, waived,
abandoned, or otherwise
extinguished
GRANTED:
Appeal
DENIED:
65.
i.
That the claim on which the

action is founded is
unenforceable under the

Statute of Frauds
(note: 1403, NCC)
GRANTED:
Appeal
DENIED:
65.
j.
That a condition precedent for

filing the claim has not been
complied with
GRANTED:
General Rule: refile plus comply
with condition precedent, EXCEPT:
In case of wilful and deliberate

forum shopping, which operates as
dismissal with prejudice, hence,
In the latter case, Appeal

In case of non exhaustion of administrative
remedies,
Exhaust then refile
DENIED:
88


65.
the court shall dismiss the claim
MOTU PROPRIO DISMISSAL: (see underlined

below)
Rule 50 S1- Motion to dismiss appeal
Rule 9 S1
An appeal may be dismissed by the CA on

its own motion or on that of appellee, on
the following grounds:
Defenses and objections not pleaded

either in a motion to dismiss or
in the answer
NOTE ALSO: Rule 7 S5

Hence, summing up Rule 16,
WITH PREJUDICE- e, f, h, i of Rule 16
WITHOUT PREJUDICE- the rest of Rule 16
1. Failure of the record on appeal to

show on its face that the appeal
was taken within the period
prescribed by these Rules
are deemed waived
However, when it appears from the

pleadings or the evidence on record that
1. the court has no jurisdiction

over the subject matter,
2. that there is another action

pending between the parties for
the same cause, or
3. that the action is barred by

prior judgment or by statute of
limitations,
2. Failure to file notice of appeal or the

record on appeal within the period
prescribed by these Rules
3. Failure of appellant to pay the

docket and other lawful fees
prescribed in S5 of R40 and S4 Rule
41
4. Unauthorized alterations, omissions,

or additions in the approved record
on appeal as provided in S4 of Rule
44
5. Failure of appellant to serve and file

the required number of copies of his
89

brief or memorandum within the

time provided by these Rules
6. Absence of specific assignment of

errors in the appellants brief, or of
page references to the record as
required in S13 par a, c, d, f of Rule
44
7. Failure of appellant to take
necessary steps for the correction
or completion of the record within
the time limited by the court in its
order
8. Failure of appellant to appear at the

preliminary conference under R48
or to comply with orders, circulars,
or directive of the court without
justifiable cause, and
9. The fact that the order or judgment

appealed from is not appealable
Side note: RULES ON MOTION

Note requirements of written motion:
1. Notice of hearing (Due process)- 3
daay notice rule
2. Set hearing 10 days after filing of

the motion
3. Proof of service (different from

proof of mailing, only as far as
filing)
To see whether the adverse party

was able to receive the motion
4. IF by registered mail, accompanied

by proof of service, explanation why
not done via personal service (R13
S11)
Other party files comment or
objection
5. File reply to comment
IF requisites are not complied with,

1. *the motion shall be treated as a
worthless piece of paper which the
clerk of court has no right to receive
and the court has no authority to
act upon (mere scrap of paper)
2. It does not interrupt the running of

the prescriptive/reglementary
period for the filing of the requisite
pleading
3. It will be ground for denial of the

motion
4. The motion shall be considered as

not filed
Execution of the act subject of the
motion, because it would be
deemed as a final order
90

If act is adversely ruled due to non

compliance with the Rules on Motion, file
M4R within 15 days (Rule 37)
LITIGATED
MOTION
NON LITIGATED
MOTION
Comply with
requisites for written
motion
No need to comply
with all the
requirements, but
with need to hear on
the motion
Motion made with notice to the

adverse party to give him an
opportunity to oppose it
Special Motion
A motion addressed to the
discretion of the court
Examples of Litigated Motions:

Motion to dismiss
If not, would affect

the right of parties
IF not, then not set
for hearing
Motion to declare defendant in

default
What is a motion?
Motion for summary judgment
R15 S1
A motion is an application for relief other
than by a pleading
Motion for judgment on the

pleadings
What are the kinds of motions?

Motion ex parte / Non Litigated
Motion
Made without the presence of or
notification to the other party
because the question generally
presented is not debatable
Motion for new trial
Motion for reconsideration
Motion to dismiss complaint upon

plaintiffs motion
Motion of course
Movant is entitled to the relief or
remedy sought as a matter of
discretion on the part of the court
Litigated Motion
Motion to lift order of default
Motion to declare a party in direct

contempt
91

Motion for demurrer to evidence

All motions for provisional remedies:
Motion for consolidation or
severance of case
Motion for trial by commissioner
Motion to strike out evidence or

testimony off the record
Examples of non-litigated motions:
Motion for preliminary attachment
Motion for dissolution of preliminary

injunction
Motion for writ of replevin
Motion in support pendent lite
Motion to reset pre trial
Motion to postpone pre trial
Motion to postpone for absence of

evidence
Motion to extend time for filing

pleadings
Motion to postpone for illness of a

party or counsel
Motion to set case for pre trial
Motions that need to be verified:

Motion for relief from judgment
Rule 16- relate to Rule 10

Amendment as a matter of right if a motion
to dismiss is filed- PWEDE! Because
motion to dismiss is NOT a responsive
pleading
Motion to dismiss- not a pleading
Motion to lift order of default
Position paper- not a pleading

Memorandum- not a pleading
Motion to postpone trial
Motion for new trial on ground of

FAME
Amendment if order granting motion to

dismiss, pwede, for as long as the motion is
final and executory
OF the 10 grounds,
92

Motion to dismiss after a responsive

pleading,
PWEDE, raise as affirmative defense, then
set the motion to dismiss for hearing
B. MOTION FOR BILL OF

PARTICULARS (R12)
When do you file bill of particulars?

R12 S1 states that a bill of particulars is
filed before responding to a pleading,
following the reglementary periods
provided for under R11. (If the pleading is
a reply, the motion must be filed within 10
days from service thereof)
(Note: Different from motion for bill of

particulars in Criminal Procedure)
Motion for Bill of
Particulars in Civ
Pro
Motion for Bill of

Particulars in Crim
Pro
Rule 12
R116 S9
May be filed before

responding to a
pleading
May be filed before

arraignment
Address any matter

in the pleading not
averred with
sufficient
definiteness or
particularity
Address alleged
defects in the
criminal complaint
or information
Purpose is to
prepare responsive
pleading
Purpose is to enable
properly to plead
and prepare for trial
Note: the motion is a LITIGATED MOTION

To clarify ambiguities
Requirements for filing Bill of

Particulars:
(R12 S1 in relation to R15)
1. A written motion by the defending
party before the court for a bill of
particulars
2. If the pleading is a reply, the motion

must be filed within 10 days from
service
3. The motion shall point out the

defects complained of, the
paragraphs wherein they are
contained, and the details desired
4. The motion is to be filed before the

filing of responsive pleading
Done before filing of a responsive pleading

What is a bill of particulars?
R12 S1 states that a bill of particulars is a
more definite statement of any matter
which is not averred with sufficient
definiteness or particularity, with the
purpose of aiding in the preparation of a
responsive pleading.
5. In writing
6. Hearing of motion set by applicant
7. Notice of hearing shall be addressed

to all the parties concerned not
93

later than 10 days from the filing of

the motion
IS bill of particulars part of a

pleading?
YES!
8. Motion and notice of hearing must

be served at least 3 days before the
date of hearing
9. Proof of service
The motion for bill of particulars is

denied. Remedy?
R12 S5
After service of the Bill of Particulars or of a
more definite pleading, or after notice of
denial of his motion, the moving party may
file his responsive pleading within the
period to which he was entitled at the time
of filing his motion which shall not exceed 5
days in any event
R12 S6 provides that a bill of particulars

becomes part of the pleading for which it is
intended.
C. MOTION TO AMEND THE

PLEADING (Rule 10)
Amendment, as provided under R10 S1, is
the process of:
1. Adding or striking out an allegation
or name of any party or
2. Correcting a mistake in the name of
a party or a written or inadequate
allegation or description in any
other respect,
a. So that the actual merits of
the controversy may
speedily be determined,
b. Without regard to
technicalities,
Effect of order of failure to comply to

file Bill of Particulars
c. And in the most expeditious

and inexpensive manner
R12 S4
If the order is not obeyed, or in case of
insufficient compliance therewith, the court
may order the striking out of the pleading
or the portions thereof to which the order
was directed, or make such order as it
deems just.
(File a motion to strike out the pleading)
IN SHORT:
Amendment is the process of
adding or striking out or correcting
a name or allegation
Amendment as a matter of right
-
To correct alterations in a PLEADING

(not in a motion)
Motion for Bill of Particulars:

Granted: Clarify, file bill of particulars
Denied, answer within the plenary period
Kinds of amendments:
1. Amendment as a matter of
right: (R10 S2)
94

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.
-
Once the pleading is amended, the

old pleading is no more, EXCEPT,
admissions made in the old
pleading
With already presentation of

evidence, but as far as allegations
are concerned, there is discrepancy,
so, amendment is allowed to
conform to evidence
o
NOTE: meron din to sa

criminal procedure
5. Substantial amendments
2. Amendment by leave of court:
(R10 S3)
Except as provided in the next preceding
section, substantial amendments may be
made only upon leave of court
-
Amendment is substantial
A responsive pleading had already

been served
3. Formal Amendments (R10 S4)

A defect in the designation of the parties or
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, provided no
prejudice is caused thereby to the adverse
party.
4. Amendments to conform or to
authorize presentation of
evidence (R10 S5)
When issues not raised in the pleadings
are tried with the express or implied
consent of parties, they shall be treated as
if raised in the pleadings, pleadings may be
amended to conform to the evidence, and
failure to amend does not affect the result
of the trial of these issues
Amendment of the pleading which would

change the original cause of action
6. Amendment to confer
jurisdiction
Amendment as a matter of right, so far as
no responsive pleading is served
Question: Amendment as a matter of right,

there is second motion to amend (not once
as a matter of right), is the second motion
to amend a matter of right or a matter of
discretion?
(Question unanswered yet)
If there is no responsive pleading yetamendment as a matter of right

Once- matter of discretion
Amendment as a matter of right

DENIED: remedy- MANDAMUS
Amendment with leave of court (after the

filing of a responsive pleading)
DENIED: Remedy?
95

Certiorari Rule 65 in relation to Rule

41 S1
Related to Rule 14 and Rule 57

-
In personam to quasi in rem,

publication is allowed
Substantial amendment
Order is interlocutory
Relate Rule 10 to Provisional Remedies

If the original complaint or verified
complaint has provisional remedies,
and the original is superseded by
amendment, any provisional
remedy is affected by amendment
Amendment of complaint, which includes
prayer for writ of attachment, the
provisional remedy shall be DISSOLVED.

-
Remedy: AMENDMENT of the

pleading
Answer omitted counterclaim or

cross claim,
o
Remedy is to AMEND the

answer
Relate to Rule 2
-
In case of non joinder of causes of

action,
o
AMEND the pleading
Relate to Rule 3
-
Service of summons
required
Amendment of complaint to join

another party,
o
Need to serve summons
Amendment of the answer? 3PC? 4PC?

Complaint in intervention?
PWEDE!- amendment of the pleadings
naman ang tinutukoy eh
When the answer does not allege

cross claim, counterclaim,
o
Related to joinder of parties,

o
AMEND the complaint
Amended
Pleading
Supplemental
Pleading
Refers to facts
existing at the time
of the
commencement of
the action
Refers to facts
arising after the
filing of the original
pleading
Takes the place of

the original pleading
Taken together with

the original pleading
Can be made as
matter of right when
no responsive
pleading has yet
been filed
Always with leave of

court
When amended
pleading is filed, a
new copy of the
entire pleading must
be filed
A substantial
pleading does not
require the filing of
a new copy of the
entire pleading
Amendment as a
A supplemental
96

matter of right is to
be answered before
the filing of the
responsive pleading,
(within 15 days after
being served with a
copy thereof)(R11
S3)
Amendment by
leave of court is to
be answered within
10 days from notice
of the order
admitting the same.
An answer earlier
filed may serve as
the answer to the
amended complaint
if no new answer is
filed (R11 S3)
pleading may be
answered within 10
days from notice of
the order admitting
the same, unless a
different period is
fixed by the court.
The answer to the
complaint shall
serve as answer to
the supplemental
complaint if no new
or supplemental
answer is filed (R11
S7)
NO PROHIBITION under the

Rules on Summary
Procedure
D. MOTION FOR EXTENSION OF

TIME TO FILE RESPONSIVE
PLEADING (Rule 11)
Rule 11 S11
Section 11
Upon motion and on such terms as may

be just,
the court may extend the time to plead
provided in these Rules
The court may also, upon like terms,
Supersedes original
pleading
Supplements
original pleading
With or without
leave of court
With leave of court
Relate to Rule 16
The court may either deny the
motion to dismiss, grant the motion
to dismiss, or ORDER THE
AMENDMENT OF THE PLEADING
Is there amendment of the pleading in

summary procedure?
YES
-
As a matter of right
As a matter of discretion
allow an answer or
other pleading to be filed
after the time fixed by these Rules
Extend, BASED ON CAUSE
Not a litigated motion

no need for hearing, notice, and
filing
3 day notice rule- further motion 3 days

before hearing
10 days- motion set for hearing at least 10
days
97

Is bill of particulars allowed in Summary

Procedure?
NO (Prohibited pleading)
o
DENIED:
-
plead
o
Motion to dismiss in Summary Procedure?
final judgment on the merits
there is issue, but there is no

genuine issue
NO (prohibited pleading)
EXCEPT:
1. lack of jurisdiction over the person
of the defending party
2. lack of jurisdiction over the person
of the defendant
3. failure to comply with the Barangay
EXCEPTION TO EXCEPTION:
Small Claims Cases- motion to dismiss
absolutely hindi pwede
Maganda ka? Maganda ka nga
ORDER OF DEFAULT / JUDGMENT

BY DEFAULT (Rule 9)
Order of Default
Order issued by the
court where
defendant failed to
file answer
Judgment by
Default
Decision or
judgment by the
court after order of
default and
presentation of
evidence ex parte
by plaintiff
E. SUMMARY JUDGMENT (Rule 35)

Summary judgment
-
judgment rendered by the court

without trial if it clearly appears that
there exists no genuine issue or
controversy as to any material fact,
except as to the amount of
damages
ORDER OF DEFAULT
Rule 9 S3 provides that a defending party
who fails to file an answer to an initiatory
pleading within the time allowed therefor
may be declared in default.
S1 and 2- PLAINTIFF or DEFENDANT Files

Plaintiff- at any time after the pleading
in answer thereto has been served
Defendant- at any time
NOTE: LITIGATED MOTION
GRANTED:
-
remedy is APPEAL
DEFENDING PARTY INCLUDES:

In a permissive counterclaimoriginal plaintiff
In a 3PC- 3rd party defendant
In a cross claim- co defendant
Requirements for declaration of
default: (R9 S3)
98

1. The court must have validly

acquired jurisdiction over the
person of the defendant either by
service of summons or voluntary
appearance
2. Proof of service of summons on the

defendant
S4 R65
Interlocutory
o
Denied,
CERTIORARI RULE 65 with TRO or injunction
-
3. The defendant fails to answer within

the time allowed therefore
4. Written motion by claiming party to

declare defendant in default (NOT
oral motion!)
NOT Rule 37 as basis

(because Rule 37 applies
only to Final orders)
Dahil pag wala, at may order of

default, tuloy tuloy na + judgment
of default
NOTE: umaakyat to hanggang SC- Ordinary

and Special Civil actions (from MTC), [not
Spec Pro]
(state R15 requirements)

MTC
Plaintiff failed to file answer, be declared in

default
(R9 in relation to Rule 6)
(all special civil actions, original actions in

exercise of original jurisdiction, final
judgment)
ORDINARY CIVIL ACTION
Order of default
DENIED,
NATURE OF ORDER OF DEFAULT:

interlocutory (making reference to R41)

DENIED,
REMEDY:
MOTION TO LIFT ORDER OF DEFAULT
Verified, FAME, Affidavit of Merit
(note what it is, and in what
instances required [all FAME])
Certiorari Rule 65 RTC with TRO (S7 R9

amended by AM 7-7-12)
DENIED,
Motion for reconsideration Rule 37 with
RTC
Granted: File answer
DENIED,
Denied,
Notice of appeal with CA Rule 41 (original

jurisdiction of RTC ang certiorari Rule 65)
FILE MOTION FOR RECONSIDERATION
99

apply Neypes, doctrine of hierarchy of

courts
DENIED,
Due to refusal to comply

with the modes of discovery,
the refusing party may be
declared in default
CA M4R Rule 52
DENIED,
SC R45 Petition for Review on Certiorari
apply Neypes, Hierarchy of courts
In case of motion to declare defendant in

default, there is one more remedy:
-
DENIED,
File motion to admit answer

o
SC M4R Rule 52
DOCTRINE OF HIERARCHY OF COURTS

Higher courts will not entertain any
case brought before it unless the
same is decided before the lower
courts
Effect of order of default:

-
Lose standing
Not to participate at the trial but

shall be entitled to notices
Entitled to 2 copies of decision,

resolution, substantially amended
pleadings
R9 S3 in relation to Rule 10
-
Order of default issued by court,

there is amendment of the
pleading, order of default is
dissolved
Mawawala ang motion to

declare defendant in default
dahil may answer na eh
Summary Proceedings
Motion to declare defendant in
default is a PROHIBITED PLEADING
As plaintiff in such a case, file MOTION TO
RENDER JUDGMENT
As defendant, dont file motion to admit
answer
-
It is equal to motion for extension of

time to file pleadings
o
PROHIBITED PLEADING
ETO DISKARTE MO, ikaw ang defendant

-
Go to office of the clerk of court, file

your answer, at pag ayaw
tanggapin, file it by registered mail
o
Pag nag argue ang kalaban,

motion to strike out answer,
WEH!
R9 in relation to Modes of Discovery

-
R1 S6- Liberal
application of the
rules, HENCE, you
can file answer
R29
Summary Procedure
100

Given 10 days to answer from

receipt of service of summons
Basis: R52 S1
Denied. Remedy?
JUDGMENT BY DEFAULT
Nature: Final Judgment
R9 in relation to R11
Based on presentation of evidence ex parte
BEFORE JUDGMENT BECOMES FINAL

AND EXECUTORY:
File a petition for review on certiorari

before the SC raising only questions of law
which must be distinctly set forth, within 15
days from notice of the denial of
petitioners motion for reconsideration filed
in due time after notice of the judgment.
Basis: R45 S2 and R45 S1-- CA
judgment, final order, or resolution
can be elevated to the SC raising
only questions of law
REMEDY:
Motion to set aside judgment or final order
due to FAME
Denied,
Denied,
CERTIORARI Rule 65 with TRO/injunctionPREFERRED over appeal
-
Because appeal is not the

adequate, speedy remedy
Judgment kasi is based on

evidence ex parte- no
evidence to review because
no evidence in the first place
is presented by defendant
GENERAL RULE: certiorari is not a

substitute for lost appeal;
EXCEPTION: when appeal is not a speedy,
adequate remedy
Denied. Remedy?
File a motion for reconsideration of the
judgment or final resolution within 15 days
from service thereof before the CA, with
proof of service on the adverse party.
Denied. Remedy?
File a motion for reconsideration of the
judgment or final resolution within 15 days
from service thereof before the SC, with
proof of service on the adverse party.
Basis: R52 S1
AFTER FINALITY OF JUDGMENT:

Any of the following remedies:
1. File petition for relief from

judgment, order, or other
proceeding on the ground of entry
of such judgment or final order, or
any other proceeding is thereafter
taken against a party in a court
through FAME (Rule 38 S1)
2. File petition for annulment of

judgment or final order or resolution
on the ground of extrinsic fraud
(R47 S1 and 2)
101

3. File petition for certiorari (Rule 65)
Answer to amended complaint
4. Collateral Attack
Answer to amended counterclaim
V. FILING OF ANSWER
Answer- the pleading setting forth the
defending partys defenses
(Bears the same parts of a pleading)
Answer to amended cross claim
Answer to amended 3rd 4th etc party

complaint
WITHIN WHEN?
What are the responsive pleadings?
Rule 6 of the Rules of Court in relation to
Rule 11 provides for the following
responsive pleadings:
Answer to amended complaint in

intervention
Answer to supplemental complaint
Answer to the original complaint

Rejoinder
Compulsory counterclaim
Answer to counter counterclaim
Answer to the permissive
counterclaim
Answer to counter cross claim
Answer to cross claim
Answer to amended counter
counterclaim
Answer to 3rd 4th etc party complaint
Answer to amended counter cross

claim
Reply
102

Discuss the periods to answer to

responsive pleadings under Rule 11 of
the Rules of Court:
1. Answer to the original
complaint
R13 S1
Defendant shall file answer to the
complaint within 15 days after service
of summons, unless a different period is
fixed by the court
R13 S2
In case of summons by publication, answer

shall be filed within the time specified in
the order granting leave to serve summons
by publication which shall not be less
than 60 days after notice, within
which the defendant must answer.
In case of a non resident defendant in
whom extraterritorial service of summons
is made, the period to answer should be
at least 60 days.
2. Compulsory counterclaim
Where the defendant is a foreign private

juridical entity and service of summons is
made:
to a resident agent, answer shall be

filed within 15 days from service
of summons to him
when it has no resident agent but

has an agent or officer in the
Philippines, answer shall be filed
within 15 days after service of
summons to said agent or
officer
(note above periods?)
3. Answer to permissive
counterclaim
if it has no resident agent nor an

agent or officer, and summons is
made on the proper government
office designated by law to receive
the same (SEC), which will then
send a copy thereof by registered
mail within 10 days to the home
office of the foreign private
corporation, answer shall be filed
within 30 days after receipt of
summons by the home office of
the foreign private entity
R11 S4
A permissive counterclaim must be
answered within 10 days from service
4. Answer to cross claim

R11 S4
A cross claim must be answered within 10
days from service
R14 S15
103

5. Answer to 3rd 4th etc party

complaint
R11 S5
Time to answer a 3rd 4th etc party complaint
shall be governed by the same rule as the
answer to the complaint (hence, follow R11
S1, 2 plus amendments)
R11 S3 (note the period) shall apply to the

answer to an amended counter claim,
amended cross claim, amended 3rd 4th etc
party complaint, amended complaint in
intervention
10. Answer to supplemental complaint

R11 S7
6. Answer to complaint in
intervention
R19 S4
The answer to the complaint in intervention
shall be filed within 15 days from notice
of the order admitting the same, unless
a different period is fixed by the court
A supplemental complaint may be

answered within 10 days of the order
admitting the same, unless a different
period is fixed by the court. The answer to
the complaint shall serve as answer to the
supplemental complaint if no new or
supplemental answer is filed.
11. Rejoinder
7. Reply
(?)
R11 S6
A reply may be filed within 10 days from
service of the pleading responded to
8. Answer to amended complaint

R11 S3
Where plaintiff files amended complaint as
a matter of right, the defendant shall
answer the same within 15 days after
being served with a copy thereof
Where its filing is not a matter of right, the
defendant shall answer the amended
complaint within 10 days from notice of
the order admitting the same
R11 S4 (?)
9. Amended CC, Amended 34etc
PC, Amended CII
Answer within 10 days from service
104

17-18.
R11 S3 (?)note the periods
Answer may raise counterclaim or cross

claim
Answer in third party complaint- Can you
raise Counterclaim or cross claim?
YES!
But, if counterclaim against counterclaim,
counter counterclaim
IF cross claim against cross claim, then
counter cross claim
Counterclaim
Any claim which a
defending party
may have against
the opposing party
presence of third
parties over whom
the court cannot
presence of third
parties over which
the court cannot
Barred if not set up

in the action
Not barred even if

not set up in the
action
Need not be
answered, not result
in default
Must be answered or
else defendant can
be declared in
default
Not an initiatory
pleading
Initiatory pleading
Docket fees are

suspended
With docket fees
Cross Claim
Any claim by one
party against a co
party arising out of
the transaction or
occurrence that is
the subject matter
either of the original
action or of a
counterclaim therein
Omitted counterclaim or cross claim

REMEDY: amend the answer
Motion to dismiss with counterclaim

If permissive counterclaim, PWEDE
Kasi, independent sa main action
Counterclaim with respect to Rule 17

Compulsory
Counterclaim
Permissive
Counterclaim
Arises out of or is
necessarily
connected with the
transaction or
occurrence that is
the subject matter
of the opposing
partys claim
Does not arise out of

nor is necessarily
connected with the
subject matter of
the opposing partys
claim
Does not require for

its adjudication the
It may require for its

adjudication the
Pwede, proceed after service of

answer (Rule 17 S1 and 2)
Counterclaim with respect to Rule 18

Plaintiff failed to appear in pre trial,
case is dismissed with prejudice,
without prejudice to counterclaim
DEFENSES and DENIALS
105

What are the types of defenses?
1. Negative defense
During hearing, defending

party to present evidence
first
R6 S5
Negative defense is the specific denial of

the material fact or facts alleged in the
pleading of the claimant essential to his
cause or causes of action.
2. Affirmative defense
INVERTED TRIAL
Affirmative defense is granted, case is

dismissed. Remedy?
APPEAL (Because trial is on the merits)
R6 S5
An affirmative defense is an allegation of
new matter which, while hypothetically
admitting the material allegations in the
pleading of the claimant, would
nevertheless prevent or bar recovery by
him. The affirmative defenses include:
a. Fraud
b. Statute of limitations
With respect too negative defenses, note

SPECIFIC DENIALS
What is a negative pregnant?

-
General denials are deemed

admissions
c. Release
d. Payment
e. Illegality
f.
Plaintiffs remedy in such a case?

-
Statute of frauds
JUDGMENT ON THE PLEADINGS

(Rule 34)
g. Estoppel
h. Former recovery
i.
Discharge in bankruptcy
j.
Any other matter by way of

confession and avoidance
Ground for motion to dismiss (if M2D not

filed or M2D denied), may be pleaded as an
affirmative defense in the answer
Motion to set affirmative defense for
hearing,
-
Equivalent to motion to dismiss
Kinds of Denials:
1. Specific Absolute Denial
By specifically denying the

averment and whenever
practicable, setting forth the
substance of the matters relied
upon for such denial
With support dapat
106

Specifically deny par 2 __ for being untrue,

the truth of the matter is that...
2. Usury in a complaint
3. Summary procedure
2. Partial specific denial
Part admission and part denial
4. Answer with permissive

counterclaim
With support dapat

Not denied under oath an actionable
document such as deed of sale or
mortgage,
3. Disavowal of knowledge
Failure to verify = deemed admitted

HENCE, judgment on the pleadings
By an allegation of lack of
knowledge or information sufficient
to form a belief as to the truth or
falsity of the averment in the
opposing partys pleading
In good faith, or else, deemed an

admission
Specific denial in par __ __ __ for lack of
knowledge to truth or belief of the same
Except:
1. Fraud/forgery
2. Not a party to the actionable
document
After jurisdiction is acquired by court,

parties may resort to:
VI. MODES OF DISCOVERY
Rules 23-28
Specific not necessarily Specific Denial

Answer- no need to verify
Depositions pending action (under

R23)
Depositions before action or

pending appeal (R24)
Interrogatories to parties under R25
Admission by adverse party (R26)
Production or inspection of
documents or things under (Rule
27)
EXCEPT:
1. Actionable Document
Document which creates rights,

which serves as basis for filing of
the complaint
107

Physical and mental examination of

persons under (Rule 28)
Discussing each:
1. Depositions pending action
(R23)
Deposition- a written testimony of a

witness given in the course of a judicial
proceeding in advance of the trial or
hearing upon oral examination or in
response to written interrogatories and
where an opportunity is given for cross
examination
Aka depositions de bene esse
Taken conditionally, to be
used at the trial only in case
deponent is not available
Do not prove existence of any right

and the testimony perpetuated is
not in itself conclusive proof, either
of the existence of any right nor
even of the facts to which they
relate, as it can be controverted at
the trial in the same manner as
though no perpetuation of
testimony was ever had
BUT, in the absence of any
objection to its taking, and even if
the deponent did not testify at the
hearing, the perpetuated testimony
constitutes prima facie proof of
facts referred to in the deposition
May be taken with leave of court when:

1. After jurisdiction has been obtained
over any defendant or over the
property which is the subject of the
action but before an answer has
been filed
2. Deposition of a person confined in
prison
Objective is to perpetuate
testimony of a witness for future
use
3. Interrogatories to parties (R25)
May be taken without leave of court:

1. After answer and deponent is not
confined in prison
Scope of examinations:
1. Matter which is relevant to the
subject of the pending action
2. Not privileged
3. Not restricted by a protective order
2. Depositions before action or

pending appeal (Rule 24)
Aka perpetuam rei memoriam
Purpose is to elicit facts from any

adverse party
Answers may also be used as

admissions of the adverse party
Written interrogatories and the

answers thereto must be both filed
and served, hence, the answers
may constitute as judicial
admissions
4. Admission by Adverse Party

under Rule 26
108

Purpose is to expedite trial and

relieve parties of the costs of
proving facts which will not be
disputed on trial and the truth of
which can be ascertained by
reasonable inquiry
6. Physical and Mental

Examination of Persons under
Rule 28
This mode of discovery is available

in an action in which the mental or
physical condition of a party is in
controversy, usually arising in
controversy in proceedings for
guardianship over an imbecile or
insane person, while the physical
condition of the party is generally
involved in physical injuries cases
Since the results of the examination

are intended to be made public, the
same are not covered by physicianpatient privilege
An admission made is for the

purpose of the pending action only
and cannot be used in other
proceedings
5. Production or inspection of
documents or things under Rule
27
Applies only to a pending action and

the documents or things subject of
the motion must only be those
within the possession, control, or
custody of a party
The documents to be produced must

have the following requisites:
1. Should not be privileged
2. Should constitute or contain
evidence material to any matter
involved in the action and which are
in the partys possession, custody,
or control
3. In a petition for production of
papers and documents, they must
be sufficiently described and
identified, or else, the petition will
not prosper
This mode of discovery does not authorize
the opposing party or clerk or other
functionaries of the court to distrain the
articles or deprive the person who
produced the same of their possession,
even temporarily
Use of depositions:
1. Impeach adverse partys witness
(relate to evidence)
2. Residing 100 km away, sick or
infirm
R23 R24- Relate to R134 (Deposition)
Interrogatories/Admission by adverse party

1. File answer or comment, or else,
the facts are deemed admitted, no
issue, hence, judgment on the
pleadings
Production/Inspection of documents or
things
For photographing, copying,
inspecting
109

Production or
Inspection of
Documents or
Things
Subpoena
Governed by Rule
101
Governed by Rule
28
Special proceeding
Mode of discovery
Mode of discovery
Process
File a petition
File a motion
By motion
By request
Filed by Regional
Director of DOH
Any party may avail

of
Production or
Inspection of
Documents or
Things
Original of
Evidence in
Custody of
Adverse Party
Mode of discovery
Exception to the
best evidence rule
By motion
By notice
If there is no original
document, because
such is in the
presence of adverse
party, the
requesting party can
ask for production of
the original by way
of notice
Without prior
knowledge as to
contents
With prior
knowledge of
contents of the
document, because
the requesting party
has the secondary
evidence
Mental and Physical examination of

Persons vs Hospitalization of Insane
Persons
Hospitalization of
Insane Persons
Physical and
Mental
examination of
persons
Another remedy which may be availed of:

MOTION TO DISMISS BY
PLAINTIFF (Rule 17)
What are the grounds for dismissal
under Rule 17?
1. Dismissal upon notice by
plaintiff (R17 S1)
At any time before service of the

answer or of a motion for summary
judgment
Before filing responsive pleading or

motion for summary judgment
2. Dismissal upon motion by

plaintiff (R17 S2)
Upon approval of the court and

Upon such terms and conditions as
the court deems proper
With answer, by way of motion

without prejudice to counterclaim
May be filed independently or

separately
110

3. Dismissal due to fault of

plaintiff, when for justifiable
cause,
Plaintiff fails to appear on the date

of the presentation of his evidence
in chief on the complaint
Plaintiff fails to prosecute his action

for an unreasonable length of time
including the same claim before

court of competent jurisdiction
4. At any time before service of
answer or of motion for summary
judgment, plaintiff filed notice of
dismissal of the second complaint
based on or including the same
claim as the first complaint
Effect of 2 dismissal rule (R17 S1):
The second notice of dismissal shall
operate as an adjudication upon the merits.
Exceptions to 2 Dismissal Rule:

Plaintiff fails to comply with these
Rules or any order of the court
What is the 2 dismissal rule? What

are its elements?
(R17 S1) -..the notice of dismissal by
plaintiff operates as an adjudication upon
the merits when filed by a plaintiff who has
once dismissed in a competent court an
action based on or including the same
claim
Elements of 2 dismissal rule: (R17 S1)

1. First complaint filed by plaintiff
before court of competent
jurisdiction
2. At any time before service of
answer or of motion for summary
judgment, plaintiff filed notice of
dismissal of the first complaint,
which the court granted (effect
without prejudice)
3. Second complaint filed by plaintiff

involving an action based on or
1. 1st action is not related to the

second action
2. Court dismissing the second action

is a court not of competent
jurisdiction
Nature of Dismissal of actions under

Rule 17:
(S1), upon notice by plaintiff
Unless otherwise stated in the
notice, the dismissal is without
prejudice,
(*2 dismissal rule) ..except that a

notice operates as an adjudication
upon the merits when filed by a
plaintiff who has once dismissed in
a competent court an action based
on or including the same claim
(S2), upon motion of plaintiff
111

The dismissal shall be without

prejudice, unless otherwise
specified in the order
Another:
(Rule 34)
S1
(S3), due to fault of plaintiff

The dismissal shall have the effect
of an adjudication upon the merits
unless otherwise declared by the
court
Where the answer

-
fails to tender an issue or
otherwise admits the material

pleading,
What are your remedies, as plaintiff,

in such cases?
the court may, on motion of that party,

direct judgment on such pleading
S1- dismissal upon notice by plaintiff
However, in an action for declaration of
refile the case (unless the 2dismissal rule applies [?])
or if so declared with prejudice,

appeal the dismissal
S2- dismissal upon motion of plaintiff

Refile the case
nullity or
annulment of marriage or
for legal separation,
the material facts alleged in the complaint

shall always be proved
Exception that JoP be on motion:

-
If the court declares that the

dismissal is with prejudice, appeal
the dismissal
if at pre trial court finds that

judgment on the pleadings is
proper, it can render such judgment
motu proprio
Allegations not deemed admitted by filing

of judgment on the pleadings:
S3- dismissal due to fault of plaintiff
Appeal the dismissal
If the court declares that the

dismissal is without prejudice, refile
the case
irrelevant allegations
immaterial allegations
allegations of damages in the

complaint
Judgment on the
Summary
112

Pleadings
Judgment
3 day notice rule
10 day notice rule
Filed by plaintiff
Filed by defendant
Based solely on the

pleadings
Based on pleadings,
depositions,
admissions,
affidavits
Answer fails to
tender an issue or
there is an
admission of
material allegations
No genuine issue
between the parties
On the merits
Interlocutory or on
the merits
There is answer filed
If filed by plaintiff,
filed at any time
before answer is
served
Second pleading on the party on the

part of defendant being his answer
to the plaintiffs replication
Another form of responsive pleading
IX. PRE TRIAL (Rule 18)

Rule 18 S1 COMPLETE:
AFTER the LAST PLEADING ASSERTING
A CLAIM has been served and filed, or
AFTER the EXPIRATION OF THE TIME FOR
FILING THE LAST PLEADING ASSERTING A
CLAIM, a pre trial is to be conducted upon
motion ex parte by plaintiff that the case
be set for pre trial
Pre Trial Conference- yes

If filed by defendant,
may be filed at any
time even before
answer
Answer
Answer to permissive counterclaim
VII. REPLY (R6 S10)

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.
Answer to cross claim
Answer to third party complaint

Reply to answer
R11- may be filed within 10 days from

service of the pleading responded to
Reply to answer to permissive
counterclaim
VIII.
REJOINDER
113

Reply to answer to cross claim
and prosecutor are

required to appear
Reply to answer to third party

complaint
Non appearance
may be excused
only if valid cause is
shown, or
representative shall
appear in behalf
duly authorized in
writing to enter into
amicable
settlement, submit
to ADR, enter into
stipulations of facts
and of document
Reply to answer to complaint in

intervention
Rejoinder
By MOTION
If the motion is not filed, is the case
dismissed for failure to prosecute?
-
Techinically, yes, but ff R1 S6

(liberal construction,
o
It is not dismissed
Hence, if plaintiff failed to file motion ex

parte that the case be set for pre trial, the
clerk of court shall issue notice of pre trial
conference
Pre Trial in
Criminal Cases
Pre Trial in Civil

Cases
Mandatory requirement
After arraignment,
within 30 days from
the date the court
acquires jurisdiction
over the accused
After the last

pleading asserting a
claim has been
served and filed
Rule 118
Rule 18
No pre trial brief
Pre trial brief is

required to be filed
and served
Counsel of accused
are required to
appear
Failure of counsel of
accused or
prosecutor to
appear, and without
acceptable excuse
for lack of
cooperation, court
may impose proper
sanctions or
penalties
Failure of plaintiff to
appear, dismissal of
the case with
prejudice, unless
otherwise ordered
by the court
Failure of defendant
to appear, plaintiff
to present evidence
ex parte
Presence of private
offended party is
not required (as only
required to appear
at arraignment)
Pr trial agreement
is in writing, signed
by accused and
counsel, or else,
cannot be used
against accused
Signed by parties
and counsel (?)
Considerations in
pre trial conference:
Considerations in
pre trial:
Parties and counsel
114

Plea
bargaining
Stipulation of
facts
Marking of
identification
of evidence
of the parties
Waiver of
objections to
admissibility
of evidence
Modification
of order of
trial if
accused
admits the
charge but
interposes a
lawful
defense
Such matters
as will
promote a
fair and
expeditious
trial of the
criminal and
civil aspects
of the case
commissione
r
Possibility of
amicable
settlement or
submission
to alternative
modes of
dispute
resolution
Propriety of
rendering
judgment on
the
pleadings,
summary
judgment,
dismissing
the action
should a
valid ground
therefor be
found to
exist
Simplification
of the issues
Necessity or
desirability of
amendments
to the
pleadings
Advisability
or necessity
of
suspending
the
proceedings
Possibility of
obtaining
stipulations
or
admissions
of facts and
of
documents
to avoid
unnecessary
proof
Limitation on
the number
of witnesses
Advisability
of
preliminary
conference
of issues to
Such other
matters as
may aid in
the prompt
disposition of
the action
(simplified)
Pre Trial In
Criminal
Pre Trial in Civil
After arraignment
After last pleading

asserting a claim
has been served and
filed
No pre trial brief
With pre trial brief
115

Order of pre trial

signed by accused
and counsel so
admissions are
binding
Failure to appear,
sanctions against
counsel and
prosecutor
f.
Failure to appear by
plaintiff, dismissal of
case with prejudice
Failure to appear by
defendant, plaintiff
to present evidence
ex parte
What are the purposes of pre-trial?

(Rule 18 S2)
The advisability of a preliminary

conference of issues to a
commissioner
g. The propriety of rendering judgment

on the pleadings or summary
judgment or of dismissing the
action should a valid ground
therefore the found to exist
h. The advisability or necessity of

suspending the pleadings
i.
Such other matters as may aid in

the prompt disposition of the action
The court shall consider:

a. The possibility of an amicable
settlement or of a submission to
alternative modes of dispute
resolution
b. The simplification of the issues
c. The necessity or desirability of

amendments to the pleadings
d. The possibility of obtaining

stipulations of admissions of facts
and of documents to avoid
necessary proof
e. The limitation of the number of

witnesses
S6- Pre trial brief

The parties shall file with the court and
serve on the adverse party, in such manner
as shall ensure their receipt thereof at least
3 days before the date of the pre trial, their
respective pre trial briefs which shall
contain, among others:
a. A statement of their willingness to

enter into amicable settlement or
alternative modes of dispute
resolution, indicating the desired
terms thereof
b. A summary of stipulated facts and

proposed stipulation of facts
c. The issues to be tried or resolved
116

d. The documents or exhibits to be

presented, stating the purpose
thereof
e. A manifestation of their having

availed or their intention to avail
themselves of discovery procedures
or referral to commissioners
f.
The number and names of the

witnesses, and the substance of
their respective testimonies
Failure to file the pre trial brief shall have

the same effect as failure to appear at the
pre trial.
PRE TRIAL BRIEF
2. The non-appearance of a party may

be excused only if a valid cause is
shown therefor or IF A
REPRENTATIVE SHALL APPEAR IN
HIS BEHALF FULLY AUTHORIZED IN
WRITING
If party a NATURAL PERSON- representative

is armed with SPECIAL POWER OF
ATTORNEY
If party is a JURIDICAL PERSON
(corporations or partnerships)representative is armed with BOARD
RESOLUTION (Board resolution is binding
upon the entire corporation, because the
Board of Directors [in case of stock
corporations] or the Board of Trustees [in
case of non stock corporations] are the
ones who make the decisions of the
corporation through Board Resolution-note that Board Resolution prevails over
SPA)
Required to be filed at least 3 days

before the Pre Trial Conference
Ensure na really good, for filing
memoranda
(all remedies, may bayad, bawat pleading)
pagkakitaan
Effects of failure to appear at the pre

trial:
Plaintiff fails to appear
R18 S5
Failure to file at pre trial brief = failure to

appear at pre trial, same effect
Requisites for appearance at the pre

trial:
The failure of plaintiff to appear at the pre

trial conference when so required shall be
cause for the dismissal of the action. The
dismissal shall be with prejudice, unless
otherwise ordered by the court.
(R18 S4)
1. Duty of the parties and their
counsel to appear at the pre trial
Defendant fails to appear

R18 S5
The failure of defendant to appear at the
pre trial conference shall be cause to allow
117

the plaintiff to present his evidence ex

parte and the court to render judgment on
the basis thereof.
Remedies in case of failure to appear

by plaintiff / defendant:
ORDER ALLOWING PLAINTIFFS

PRESENTATION OF EVIDENCE EX
PARTE
REMEDIES: The order is interlocutory,
hence,
File motion for reconsideration,
based on R65 S4 and R41 S1
Plaintiff fails to appear
Plaintiff can file an appeal, unless

the dismissal is ruled to be without
prejudice, which in such a case,
defendant would be avail of the
remedy of refiling the case or filing
a petition for certiorari under Rule
65
Defendant fails to appear
R65 (4)- ..whether such m4r is

required or not..
R41 (1)- the order allowing ex parte

presentation of evidence is an
interlocutory order, hence, no
appeal may be taken from it
If M4R denied, file petition for certiorari

under Rule 65
-
NOTE: Defendant WILL NOT BE DECLARED

IN DEFAULT! Likewise, there is no such
thing under the 1997 Rules on Civil
Procedure AS IN DEFAULT (sa luma to)
When defendant fails to appear, 4
SCENARIOS ARE CONTEMPLATED:
-
Issuance of order allowing ex parte

presentation of evidence/before
presentation of evidence
Order allowing ex parte

presentation of evidence was
issued, plaintiff presents ex parte
evidence
Before judgment becomes final and

executory
After judgment becomes final and

executory

interlocutory order, no appeal may
be taken from it, hence, aggrieved
party may file the appropriate
special civil action under Rule 65,
which includes certiorari
PRESENTATION OF EVIDENCE EX
PARTE
Conducted by Court of CLERK OF COURT
-
Clerk of court, a LAWYER

o
Hence, if judge delegated to

clerk of court who is not a
lawyer, BAWAL
Can clerk of court charge Commissioners

Fee?
BAWAL accdg sa Manual of Clerk of Court
(ugat ng corruption)
The only time na pwede is when he
is not an employee of a court
118

REMEDIES:
File a motion for reconsideration + Set
aside the Evidence Ex parte
-
on the ground that the order is

contrary to law [R37]? OR,
that, the order allowing ex parte

interlocutory order)
if you fail this, the evidence shall
form part of the records of the case
kawawa ka cge
Ground: FAME which ordinary prudence

could not have guarded against and by
reason of which such aggrieved party has
been impaired in his right
After judgment becomes final

and executory
REMEDIES:
Before judgment becomes final

and executory
Appeal the judgment (Rule 41) or
File motion for reconsideration

(Rule 37) or
GROUND: any proceeding is

thereafter taken against the
party in any court through
FAME
File for annulment of judgment,

final order, or resolution under
Rule 47 or
o
REMEDIES:
File Relief from judgment, order,

or other proceedings under Rule
38 or
o
If the motion for reconsideration + motion

to set aside is denied, file a petition for
certiorari under Rule 65
interlocutory order, no appeal may
be taken from it, hence, aggrieved
party may file the appropriate
special civil action under Rule 65,
which includes certiorari
File a motion for new trial (Rule

37)
GROUND: extrinsic fraud
File petition for certiorari under

Rule 65 or
o
GROUND: GAD amounting to

lack or excess of jurisdiction
on the part of the tribunal
exercising judicial functions,
and there is no appeal nor
any plain, speedy and
adequate remedy in the
ordinary course of law
Ground: that the evidence is insufficient to

justify the decision or final order
Make a collateral attack on the

judgment
119

Pre Trial Order

-
Order issued by the court stating

what transpired during the pre trial
conference
o
Can be amended accordingly
By filing motion to amend or

correct the pre trial order,
within 5 days after receipt of
the pre trial order
NO NEED for counsel to sign
the pre trial order
Pre Trial conference- relates to judicial

admissions under Rule 129
A proceeding where parties present

evidence and ends in oral argument
With respect to examination of witnesses
Pre trial brief (see above) presented in trial
All witnesses in pre trial brief to be

presented
Before witness is presented, offer of
testimony, in accordance with purpose in
pre trial brief
1. PROPONENTS / PLAINTIFFS
TESTIMONIES AND EVIDENCE IN
CHIEF as well as that of
witnesses
Adverse party admits your

proposals/stipulations
-
Deemed admitted
Cause of action admitted by defendant,

-
Rule 18 in relation to Rule 34
JUDGMENT ON THE
PLEADINGS
Conclusive on part of admitter, for

purposes of substantial justice
Pre Trial
-
May be delegated to clerk of court

who is a lawyer
After PRE TRIAL,
X. TRIAL
The best part of law practice
With respect to Rule 7 (parts of a pleading)

stating the cause of action in the body of
the pleading
Ultimate facts to be proven during the trial
of the case
ORDER:
Direct Examination
-
Transform allegations of the

complaint in the body of the
pleading
Cause of action
Direct testimony
Show sinumpaang salaysay
HOW, WHEN, WHERE, WHAT, WHY

CONSIDER violations and exceptions:
Leading Questions
(Rule 30 in relation to Rule 132 S4, 5, 6, 7,

8)
Avoid except in preliminary matters
120

Propound answers which proponent

desires
NOTE EXCEPTIONS: hostile witnesses,

minors, adverse party, preliminaries
TSN is best evidence

of what transpired
during trial
To impleach
testimony of
witness
To refresh
memory of
the witness
Ididiscuss din
to isa isa sa
memorandum
Is your name Ms X? Leading

Is your age 27? Leading
Misleading questions
Cross Examination
Requires knowledge of:
-
Facts
Evidence
Defenses
Leading
questions are allowed
Totoo bang ikaw ay maganda? Leading

Obtain affirmative answers- GOOD
Line of questioning:
Is it not a fact you are 1 of... YES
Executed sometime, etc... YES
Re Direct Examination
Re establish what was destroyed
during the cross examination
Re Cross Examination
Destroy what was re established in
the re direct examination
NOTE: Identify all witnesses
Offer of
Testimony
Made at the time
the witness is
presented on the
witness stand
Offer of Evidence
After termination of
presentation of
evidence of
prosecution
NOTE: Lead mo papunta sayo

-
Test credibility of witness, test

credibility of testimony
Not from the mouth of credible

witness, but from credible
testimony
WHY? Asa TSN- pag may

mali, ipa correct
Evidence in chief
Evidence supporting allegations in
the complaint
After presentation of all witnesses,
121

Offer of evidence
Then,
Comment or objection
-
Secondary
Not identical
If granted but on
appeal order of
dismissal is
reversed, defendant
is deemed to have
waived the right to
present evidence
With prejudiceappeal
Without prejudicerefile
Both by way of motion
NOTE: in summary proceedings, no trial, no

demurrer to evidence
Then,
Order of admission/Exclusion of
evidence
Admitted; Exh A, Exh B
In Criminal Cases,
There is demurrer to evidence in Summary
Procedure
-
Excluded: Exh C, etc

TENDER OF EXCLUDED
EVIDENCE
Considered by CA in appeal
After PLAINTIFF RESTS ITS CASE,

(defendant may file) DEMURRER
TO EVIDENCE (Rule 33)
Constitutional Right to Due process
Demurrer to
evidence in Civil
Procedure
Demurrer to
evidence in
Criminal
Procedure
Rule 33
Rule 119 S23
No leave of court
required
With or without
leave of court
D2E vs M2D (simplified)

D2E
If with leave of
court, accused could
present evidence if
demurrer is denied
M2D
Rule 33
Rule 16
After plaintiff rests

its case
Before filing of
responsive pleading
That plaintiff has

shown no right of
relief
10 grounds
If granted, case
dismissed
If granted, case
dismissed, remedy
depends:
If without leave of
court, accused could
not present
evidence if demurrer
is denied
If court finds that
evidence is
insufficient (plaintiff
If court finds that

prosecutions
evidence is
122

has shown no right

to relief), complaint
dismissed as
demurrer is granted
insufficient,
demurrer granted,
accused is acquitted
Judgment of
acquittal not
appealable, hence,
DJ sets in
Judgment of
dismissal is
appealable
Judgment of
acquittal is not
appealable; DJ sets
in
If demurrer is
granted but on
appeal, order of
dismissal is
reversed, defendant
is deemed to have
waived the right to
present evidence
and submits case for

decision based on
prosecutions
evidence
(simplified version)
D2E Civil
Rule 33
Rule 119 S23
With or without
leave of court
With LoC- if denied,

accused presents
evidence
If granted, but on
appeal is reversed,
defendant loses the
right to present
evidence, case
submitted for
decision
(NO res judicata in

dismissal due to
demurrer)
D2E Criminal
Without LoC- if
denied, defendant
cannot present
evidence
After plaintiff rests its case, no D2E or D2E

denied no appeal,
Plaintiff files motion

to deny motion due
to demurrer to
evidence
Court may motu

proprio deny motion
If court denies
demurrer,
defendant will
present evidence
If court denies
demurrer,
2. DEFENDANTS EVIDENCE IN
CHIEF
Prove allegations in the body of the

answer (R7 S1)
Order:
With LoC- accused

may present
evidence
Direct Examination
Cross Examination
Re Direct Examination
W/O LoC- accused

can no longer
present evidence
Re Cross Examination
Formal offer of evidence
123

Comment
Final consideration and

determination of a court of
competent jurisdiction upon the
matters submitted to it in an action
or proceeding
Objection
Offer
Tender of excluded evidence
DEFENDANT RESTS ITS CASE
S1- Rendition of judgments and final

orders:
Note: No more D2E- Rule 33- after

PLAINTIFF rests its case...
A judgment or final order determines the

merits of a case, shall be
3. REBUTTAL EVIDENCE
in writing,
personally and directly prepared by

the judge,
stating clearly and distinctly the

facts and the law on which it is
based,
must contain a dispositive part,
signed by him, and
filed with the clerk of court
Purpose is to rebut defendants

evidence in chief
Order: (same as previously stated)
4. SUR REBUTTAL EVIDENCE
Purpose is to rebut the rebuttal

Order: (Same as previously stated)
5. MEMORANDUM
Narration of facts of the case,

issues, no cause of action, no
defenses, but only contain
discussions
After trial,
XI. JUDGMENT (Rule 36)
CONSTITUTIONAL BASIS:
A8 S14(basis for Rule 36)
No decision shall be rendered by any court
without expressing therein clearly and
distinctly the facts and the law on which it
is based.
No petition for review or motion for
reconsideration of a decision of the court
shall be refused due course or denied
without starting the legal basis therefor.
Kinds of Judgments:
JUDGMENT UPON A
COMPROMISE
Declares rights/reliefs of parties
124

Judgment rendered by the court on

the basis of compromise agreement
entered into by the parties
Judgment by Cognovit actionem
Immediately executory upon signing

of compromise agreement in
absence of motion to set aside on
the ground of FAME
Defendant after service instead of

entering a plea, acknowledged and
confessed that plaintiffs cause of
action was just and rightful
Has effect of res judicata
Compromise agreement May be

submitted to by parties at any stage
of a case, even after F and E, even
without court approval
(A2028-2046, NCC)
Court could render judgment upon a

compromise, and, in case of breach of any
of the conditions, the party may ask the
court for execution of judgment.
JUDGMENT UPON CONFESSION
Judgment by Confession Relicta

Verificatione
After pleading and before trial,

defendant both confesses the
plaintiffs cause of action and
withdrew or abandoned his plea or
other allegations, whereupon
judgment was entered against him
without proceeding to trial
Remedies to judgment by consent,

confession, compromise:
File motion to set aside
Judgment rendered by court when a

party expressly agrees to the other
partys claim or acknowledges
validity of the claim against him
Judgment upon
compromise
Judgment by
confession
Provisions and
terms are settled
and agreed upon by
the parties to the
action and which is
entered by the
consent of the court
An affirmative and
voluntary act of
defendant himself.
The court exercises
a certain amount of
supervision over the
entry of judgment
If denied, file petition for certiorari

under Rule 65 (R41 S1)
JUDGMENT UPON THE MERITS
Judgment that is rendered after

consideration of the evidence
submitted by the parties during the
trial of the case
CLARIFICATORY JUDGMENT
2 kinds of judgment by confession:
125

Judgment rendered to clarify an

ambiguous judgment or one difficult
to comply with
otherwise admits the material

pleading
JUDGMENT NON PRO TUNC
SUMMARY JUDGMENT (R35)
Now for then
Judgment rendered by the court if

the pleadings, supporting affidavits,
depositions and admissions of
plaintiff or defendant show that:
Judgment intended to enter into the

record the acts which had already
been done, but which do not appear
in the records
except as to the amount of

damages, there is no genuine
issue as to any material fact
and that the moving party is
entitled to judgment as a
matter of law
JUDGMENT SIN PERJUICIO
Without prejudice
Refers to dismissal of a case
without prejudice to its being refiled
SEVERAL JUDGMENT
R36 S4
JUDGMENT BY DEFAULT (R9 S3)
Judgment rendered by the court

where in an action against several
defendants, the court renders
judgment against one or more of
them, leaving the action to proceed
against the others
Judgment rendered by the court

following an order of default,
granting the claiming party the
relief prayed for on the basis of his
evidence presented ex parte by
plaintiff

(R34)
Judgment rendered by the court upon
motion by plaintiff where the answer of
defendant
fails to tender an issue or
SEPARATE JUDGMENT
R36 S5
Judgment rendered disposing of a
claim among several others
presented in a case after a
determination of issues material to
a particular claim and all
counterclaims arising out of the
126

transaction or occurrence which is

the subject matter of said claim
and the law on the matter, plaintiff

has not shown any right to relief
SPECIAL JUDGMENT
R39 S11
Judgment requiring performance of
an act other than execution of
judgments for money execution of
judgments for a specific act,
a certified copy of the judgment
shall be attached to the writ of
execution and shall be served by
the officer upon the party against
whom the same is rendered, or
upon any other person required
thereby, or by law, to obey the
same, and such party or person can
be held liable for contempt for
disobedience of such special
judgment
CONDITIONAL JUDGMENT
Judgment wherein effectivity of

such depends upon occurrence or
non occurrence of an event
FINAL JUDGMENT
Judgment which disposes of the

whole subject matter or terminates
the particular proceedings or action,
leaving nothing to be done by the
court but to enforce in execution
what has been determined
JUDGMENT FOR SPECIFIC ACTS

R39 S10
Judgment of a court directing a
party to execute a conveyance of
land or personal property or to
deliver deeds or other documents,
or to perform any other specific act
in connection therewith
AMENDED JUDGMENT
Aka clarified judgment; it is an

entirely new judgment, which
supersedes an original judgment
rendered by the court
SUPPLEMENTAL JUDGMENT
JUDGMENT ON DEMURRER TO
EVIDENCE
R33
judgment rendered by court
dismissing case upon motion of
defendant, made after plaintiff
rested his case, on the ground that
upon the facts presented by plaintiff
Judgment of the court which serves

to bolster or add to the original
judgment, and does not take place
nor extinguish the original judgment
Conclusiveness of judgment
127

Reopening of Trial (Rule 119)
Res Judicata (note above)
Stare Decisis
Appeal (Rules 40-43, 45)
1. Motion for Reconsideration

(Rule 37)
R37 S1
Obiter Dictum
Within the period for taking an appeal, a

motion for reconsideration may move for
reconsideration on the grounds that:
a. Damages awarded are excessive
b. Evidence is insufficient to justify the

decision or final order
Law of the Case
c. That the decision or order is
contrary to law
If after judgment is promulgated, the

judgment is ambiguous and difficult to
comply,
MOTION FOR CLARIFICATORY
JUDGMENT
XII.
REMEDIES BEFORE
JUDGMENT BECOMES FINAL
AND EXECUTORY:
Motion for reconsideration (Rule 37)
Motion for New Trial (Rule 37)
NOTE: M4R here is directed against

judgment or final order, not an
interlocutory order which preceded petition
for certiorari (R41 S1 in relation to R65
yon)
NOTE: Interlocutory orders are non
appealable (AM 7-7-12-SC)
Under Summary Procedure, BAWAL ang
M4R and MNT R37 (General Rule)
Exception: If against interlocutory order
2. Motion for New Trial (Rule 37)
Motion to Rehear a case already

decided by court but before
128

judgment thereon becomes final

and executory,
filed within the period for taking an
appeal, to set aside the judgment or
final order order and grant a new trial
based on the ff grounds materially
affecting substantial rights of a party:
(R37 S1)
1. FAME which ordinary prudence
could not have guarded against and
by reason of which such aggrieved
party has probably been impaired in
his right or
30 days- record on appeal (Spec Pro,

Multiple Appeals- Expropriation, Partition)
Neypes vs CA
Fresh Period to Appeal:
15 days from denial of M4R/MNT
30 days from denial of M4R/MNT
MTC decisions
2. Newly discovered evidence which
he could not, with reasonable
diligence, have discovered and
produced at the trial and which if
presented would probably alter the
result
3. Reopening of Trial (civil in

relation to criminal procedureR119 S24)
Reopening of the proceedings to avoid
miscarriage of justice
Civil- for reasons of EQUITY
For criminal cases- for reason of admission
of additional evidence
MTC
RTC
Notice
/
Record
on
Appeal
under
R40
Petition
for
Review
under
Rule 42
(from
RTC
decisions
in
exercise
of
appellate
jurisdicti
on)
M4R
Under
Rule 37
CA
Petitio
n4
review
on
certior
ari
under
M4R
Under
Rule 52
SC
SC
M4R
Rule
52
4. APPEAL (Rules 40-43, 45)
from the judgment, order of denial,

assignment of errors
o
FINAL ORDER- decision or

the denial of M4R or MNT
15 days- ordinary appeal
129

RTC decisions in exercise of original

jurisdiction
RTC
M4R
Under
Rule 37
Notice
or
Record
on
appeal
under
Rule 41
Record on
appeal
or
record
on
appeal
for
Review
for
Review
(Appeal
?)
Review on
Certiorari
Of MTC
decisions
Of RTC
Decision
s
original
jurisdicti
on
Of RTC
decision
s
appellat
e
jurisdicti
on
Of
quasi
judicial
bodies
Of CA,
Sandiganba
yan, CTA,
RTC
decisions
Questions
of fact law
or both
Question
s of fact
law or
both
Question
s of fact
law, or
both
Questio
ns of
fact law
or both
Questions of
law
To RTC
To CA
To CA
To CA
To SC
General Rule:
CA
Finding of fact of CA are final and

conclusive and cannot be reviewed on
appeal to SC:
M4R
Under
Rule 52
SC
EXCEPTIONS:
Petitio
n4
review
on
certior
ari
under
1. When finding is grounded entirely

on speculations, surmise,
conjecture
SC
M4R
Rule
52
2. When inference is manifestly

absurd, mistaken, or impossible
3. When judgment is premised on a

misrepresentation of facts
Notice/Record on Appeal
In case of Record on Appeal, appellants
Brief 45 days to file record on appeal
4. When there is GAD in appreciation

of facts
Rule 40
Rule 41
Rule 42
Rule
43
Rule 45
5. When findings of fact are conflicting
Memorand
um of
appeal
Appellan
ts Brief
Petition
for
Review
Petition
For
Review
Petition for
Review on
Certiorari
6. When CA in making its findings

went beyond the issues of the case
and the same is contrary to both
Notice or
Notice
Petition
Petition
Petition for
130

the admissions of appellants and

appellees
7. When findings of fact of CA are at

variance with those of the trial
court, the SC has to review the
evidence in order to arrive at the
correct findings based on record
8. When findings of fact are

conclusions without citation of
specific evidence on which they are
based
9. When facts set forth in the petition

as well as in the petitioners main
and reply briefs are not disputed by
respondents
10. when findings of fact of the CA is

premised on supposed evidence
and is contradicted by evidence on
record
When a judgment or final order is entered,

or any other proceeding is thereafter taken
against a party in any court through FAME,
he may file a petition in such court and in
the same case praying that the judgment,
order, or proceeding be set aside
-
OTHER PROCEEDING INCLUDES:

o
Order or writ of execution
Order dismissing appeal
S2- Petition for relief from denial of appeal

When judgment or final order is rendered
by court in any case, and a party thereto,
by FAME, has been prevented from taking
an appeal, he may file a petition in such
court and in the same case and praying
that the appeal be given due course.
Filed within 60 days from knowledge of

judgment and within 6 months from entry
of judgment
Relate to appeal
o
11. when certain material facts and

circumstances which have been
overlooked by the trial court which,
if taken into account, would alter
the result of the case in that they
would entitle accused to acquittal
Failure to appeal due to

FAME
2. Petition
for
Annulment
judgment (Rule 47)
of
RTC exclusive original jurisdiction to CA

MTC exclusive original jurisdiction to RTC
REMEDIES AFTER JUDGMENT BECOMES

FINAL AND EXECUTORY:
Ground: extrinsic fraud
1. Petition for relief from

Judgment (Rule 38)
S1- Petition for relief from
orders, other proceedings
judgment,
Annulment of judgment
131

Remedy in law independent of the

case where the judgment sought to
be annulled was rendered and may
be availed of though the judgment
has been executed
object is to obtain satisfaction of the

judgment on which the writ is
issued
BY MOTION- 5 years
AFTER 5 years
Important condition:
-
Petitioner failed to move for MNT,

appeal from, file petition for relief
against, or take other appropriate
remedies
assailing
questioned
judgment or final order or resolution
through no fault attributable to him
Revival of Judgment- 10 YEARS, by MOTION
Execution as a matter of right (R39 S1)

Execution shall issue as a matter of right,
on motion,
1. upon judgment or order that
disposes of the action or proceeding
S2- Grounds
a. upon expiration of period to

appeal therfrom if no appeal
has been duly perfected
1. Extrinsic or collateral fraud

2. Lack of jurisdiction over subject
matter and over the person
NOTE: (rules on motion)

-
3. Certiorari under Rule 65
ministerial on the part of the court
IF DENIED, mandamus or appeal is the

proper remedy
Nature of writ of execution:
R39 S8
4. Collateral Attack
The writ of execution is issued in the name

of RP and shall state:
e. Name of court which granted
the motion
EXECUTION OF JUDGMENT
-
Execution
-
f.
Case number
Nothing left for the court but to

enforce its decision
g. Dispositive portion of the
judgment or order subject of
the execution
remedy afforded by law for the

enforcement of a judgment
132

h. Shall require the sheriff or

other proper officer to whom
it is directed to enforce the
writ according to its terms
3. Issued without authority
4. Improvidently issued
5. Defective in substance
Rule: Matter of right on part of winning
party (execution), and court cannot refuse
Except:
1. When judgment turns out to be
incomplete or conditional
6. Judgment is already satisfied
7. Controversy was never submitted to

the court
2. Judgment is novated by parties

Rule: Dispositive portion of decision is the
part that becomes subject of execution
3. Equitable grounds like change in
situation of the parties which makes
execution inequitable
Except:
1. When there is ambiguity in the
dispositive portion
4. Execution is enjoined
5. Judgment has become dormant
6. Execution is unjust or impossible
When proper to Quash Writ of Execution:

1. Change in situation of parties
renders execution inequitable
2. Issued against the wrong party
2. Where
extensive
and
explicit
discussion and settlement of the
issue is found in the body of the
decision
S2- Discretionary Execution

Discretionary
Execution
May issue before
lapse of period to
appeal, and even
during appeal
Discretionary upon
the court; there is
inquiry on whether
there is good reason
for execution
Execution as a
matter of right
Period to appeal has
already lapsed, no
appeal is perfected
Ministerial duty of
the court provided
there
are
no
supervening events
133

S2- Discretionary execution
a. Execution of a judgment or a final

order pending appeal
On motion of the prevailing party with
notice to the adverse party filed in the trial
court
-
while it has jurisdiction over the

case and
is in possession of either the

original record or the record on
appeal, as the case may be,
o
at the time of the filing of

such motion, said court may,
in its discretion,
order execution of a
judgment or final
order even before the
expiration
of
the
period to appeal
2. Wastage
debtor
of
asset
by
judgment
Court may, in its discretion, order an

execution before expiration of the time
within which to appeal, provided,
1. There is motion for execution filed
by winning party
2. There is notice of said motion to the

adverse party
3. There are good reasons stated in a

special order after due hearing
Supersedeas Bond
-
After the trial court has lost jurisdiction, the

motion for execution pending appeal may
be filed in the appellate court.
Discretionary execution may only issue

upon good reasons to be stated in a special
order after due hearing.
Bond filed by petitioner and

approved by court before the
judgment
becomes
final
and
executor and conditioned upon
performance of the judgment
appealed from, in case it be
affirmed wholly or in part
Remedy in case of execution as matter of

discretion,
b. Execution of several, separate, or
partial judgments
A several, separate, or partial judgment
may be executed under the same terms
and conditions as execution of a judgment
or final order pending appeal.
CERTIORARI
o
Interlocutory,
without
prejudice to the outcome of
appeal
S4- Judgments not stayed by appeal

Grounds:
1. Insolvency of judgment debtor
(Exception to general rule)

In the following cases:
134

1. Injunction
2. Receivership
S6 N/A to:
3. Accounting
1. Judgments for support
4. Support
2. Contempt orders in unauthorized reentry on land by ejected defendant
5. Other judgments declared to be

immediately
executory
unless
otherwise ordered by trial court
S6- Execution by motion or independent

action
Modes of enforcement:
1. By motion within 5 years from date
of entry
3. Issuance of writs of possession and

4. Special proceedings
registration cases
and
land
S9- Award of judgments of money, how

enforced
1. Immediate payment on demand
2. Satisfaction by levy
3. Garnishment of debts and credits
2. By independent action for revival of

judgment after 5 years from entry
and before it is barred by statute of
limitations which is 10 years from
entry under 1144, NCC
Revival of judgment
S6
Independent action
Assumes there is no
execution
within
first 5 years
Party who files the
action
is
the
judgment
creditor
himself,
or
his
assignee,
or
his
successor
in
intereest
Filed due to lapse of
5 year period
Revival of judgment
S34
Carried out through
filing of a motion in
court
Assumes
that
judgment
is
executed within first
5 years
Party who files such
motion is not the
original
judgment
creditor but he is
the highest bidder in
the public auction
Filed
because
movant is deprived
of
property
purchased
Levy
-
Act by which officer sets apart or

appropriates part of whole property
of judgment debtor for purposes of
execution sale
Garnishment
-
Act of appropriation by the court

when property of debtor is in the
hands of a third person
Attachment
Refers to corporate
property
in
possession
of
judgment debtor
Garnishment
Refers to money,
stocks, credits, other
incorporeal property
which
belong
to
judgment debtor but
is in the possession
or under control of a
third person
135

S10- Execution of judgments for specific

act
judgment obligor and his family,

such as the judgment obligor may
select, of a value not exceeding
100k pesos
1. Conveyance, delivery of deeds,

other specific acts vesting title
6. Provisions for individual or family
use sufficient for 4 months
2. Sale of real or personal property

3. Delivery
property
or
restitution
of
4. Removal of improvements
property subject of execution
real
on
5. Delivery of personal property
7. Professional libraries and equipment

of judges, lawyers, physicians,
pharmacists, dentists, engineers,
surveyors, clergymen, teachers,
other professionals, not exceeding
300k pesos in value
S13- Property Exempt from Execution:

1. Judgment obligors family home as
provided by law, or the homestead
in which he resides, and the land
necessarily used in connection
therewith
8. One fishing boat and accessories

not exceeding total value of 100k
pesos owned by a fisherman and by
the lawful use of which he earns his
livelihood
2. Ordinary tools and implements

personally used by him in his trade,
employment, or livelihood
9. So much of the salaries, wages, or

earnings of the judgment obligor for
his personal services within the 4
months preceding the levy as are
necessary for support of his family
3. 3 horses, 3 cows, 3 carabaos, other

beasts of burden such as judgment
obligor may select necessarily used
by him in his ordinary occupation
4. Necessary clothing and articles for

ordinary personal use, including
jewelry
5. Household furniture and utensils

necessary for housekeeping, and
used for that purpose by the
10. Lettered gravestones
11. Monies,
benefits,
privileges,
annuities accruing or in any manner
growing out of any life insurance
12. Right to receive legal support, or

money or property obtained as such
support, or any pension or gratuity
from government
136

Note: Cumulative remedies

13. Persons specially exempted by law
BUT not article or species of articles of
property mentioned in this section shall be
exempt from execution issued upon a
judgment recovered for its price or upon a
judgment of foreclosure of a mortgage
thereon.
S16- Proceedings where property claimed

by third person
Ordinary sale on
execution
Need
not
be
confirmed by court
Right of redemption
exists
Remedies of 3rd party claimant:

1. Summary hearing before court of
competent jurisdiction
2. Terceria or third party claim filed

with sheriff
3. Action for damages on the bond

posted by judgment creditors
4. Independent reivindicatory action
S30- Proof required of redemption

Redemptioner must produce to officer, or
person from whom he seeks to redeem,
and serve with his notice to the officer:
1. A copy of the judgment or final
order certified by the clerk of court
wherein the judgment or final order
is entered
Terceria
-
Title
is
acquired
after expiration of
redemption period
when final deed of
conveyance
is
executed
Sale in judicial
foreclosure of
mortgage
Must be confirmed
by court in order to
divest rights in the
property
of
the
parties and to vest
the rights in the
purchaser
No
right
of
redemption except
when mortgagee is
a bank or a banking
institution
Title
is
acquired
upon
confirmation
and registration of
the foreclosure sale
A person claiming property levied

upon may execute affidavit of title
or right of possession over the
property
o
Such affidavit must state the

grounds of such right or title
The affidavit shall be served

upon officer making a levy
and a copy thereof must also
be
served
upon
the
judgment oblige
2. If he redeems upon a mortgage or

other lien, a memorandum of the
record thereof, certified by RD, or
3. An original or certified copy of any

assignment necessary to establish
his claim, or
137

4. An affidavit executed by him or his

agent showing the amount then
actually due on the lien
2. He may cause examination of

debtor of the judgment debtor as to
any debt owed by him or to any
property of the judgment debtor in
his possession
S32- Rents, Earnings, Income of property

pending redemption
Rights of judgment debtor:
1. Remain in possession of property
3. If after examination, the court finds

property of the judgment debtor,
either in his own hands or that of
any person, the court may order the
property applied to the satisfaction
of the judgment
2. Cannot be ejected
3. Use the property in the same

manner it was previously used
4. Make necessary repairs to buildings

thereon while he occupies the
property
A party or other person may be compelled,

by order or subpoena, to attend before the
court or commissioner to testify as
provided by S36 and S37
4. If court finds the earnings of the

judgment debtor are more than
sufficient for his familys needs, it
may order payment in instalments
5. Use it in the ordinary course of

business
6. Collect rents, earnings, and income

derived from the property until
expiration
of
the
period
of
redemption
S35- Remedies of judgment creditor in aid

of execution
1. If execution is returned unsatisfied,
he may cause examination of
judgment debtor as to his property
and income
5. Court may appoint a receiver for the

property of the judgment debtor not
exempt from execution or forbid a
transfer
or
disposition
or
interference with such property
6. If court finds that the judgment

debtor has an ascertainable interest
in
real
property
either
as
mortgagor, mortgagee or otherwise,
and his interest can be ascertained
without controversy, the court may
order the sale of such interest
7. If the person alleged to have the

property of the judgment debtor or
138

be indebted to him, claims an

adverse interest in the property or
denies the debt, the court may
authorize judgment creditor to
institute an action to recover the
property, forbid is transfer and may
punish disobedience for contempt
subject
matter,
causes of action
First
judgment
constitutes absolute
bar to all matters
directly
adjudged
and
those
that
might have been
adjudged
Has the effect of
preclusion of claims
S47- Effect of judgment or final order
and subject matter

First judgment is
conclusive only as to
matters
directly
adjudged
and
actually litigated in
the
first
action.
Second action can
be prosecuted
Has the effect of
preclusion only to
issues
Res judicata
-
Bar by former judgment/direct

estoppel by judgment
-
Law of the case

-
Estoppel by verdict, estoppel by

record, collateral estoppel
by
judgment or preclusion of issues or
rule of auter accion pendent, covers
par c
Public Policy Principle

-
Inalterability of final and executory

judgment
Decisions of court must be immutable at

some definite period of time
Refers to the legal conclusions

announced on a first appeal,
whether on the general law or the
law as applied to the concrete facts,
not only prescribe the duty and limit
the power of the trial court to
conduct obedience and conformity
thereto, but they become and
remain the law of the case in all
other steps, whether in the lower
court or in the appellate court on a
subsequent appeal
S48- Effect of foreign judgment or final

orders
Public policy principle
-
Issues actually and directly resolved

in a former suit cannot again be
raised in any future case between
the same parties involving a
different cause of action
Bar by former
judgment
Identity of parties,
Conclusiveness of
judgment
Identity of parties
Judgment by a court is enforceable

only within its territorial jurisdiction
Effect of foreign judgments

-
Provided that
jurisdiction
the
tribunal
has
1. In case of judgment against a

specific thing,
139

a. Judgment is conclusive upon

title to the thing
a. In case of a judgment or final order

upon a specific thing, the judgment
or final order is conclusive upon the
title to the thing and
2. In case of judgment against a

person,
a. Judgment is presumptive
evidence of a right as
between the parties and
their successors in interest
by a subsequent title
2 ways of giving effect to a foreign

judgment:
1. Ordinary action to enforce the
foreign judgment may be filed in
court or
b. In case of a judgment or final order

against a person, the judgment or
final order is presumptive evidence
of a right as between the parties
and their successors in interest by a
subsequent title
In either case, a judgment or final order
may be repelled by evidence of:
1. Want of jurisdiction
2. Want of notice to a party
3. Collusion
4. Fraud
2. It may be pleaded in an answer or

motion to dismiss
In both instances, judgment

repelled by evidence of:
may
5. Clear mistake of law or fact
be
1. Want of jurisdiction
2. Want of notice
LAST NOTES ON CIVIL PROCEDURE

Note latest Rules on ADR (2009) in relation
to Rule 18
3. Collusion
4. Fraud
Effect of foreign judgment:

R39 S8
The effect of a foreign judgment or final
order of a tribunal of a foreign country,
having jurisdiction to render judgment or
final order is as follows:
140

141

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Remedial Law Review Notes under Atty Ferdinand Tan

CONSOLIDATED NOTES in CIVIL PROCEDURE

CIVIL PROCEDURE NOTES

1. Civil Procedure (Rules 1-71)

2. Special Proceedings (Rules 72-109)

Branch of law which prescribes the

Remedial Law vs Substantive Law

Part of the law

Makes vested rights

Has no vested rights

Governs rights and

3. Criminal Procedure (R110-R127)

What are the sources of Remedial

Differentiate: Civil Actions, Special

Main Divisions of Remedial Law:

Remedial Law Review Notes under Atty Ferdinand Tan

Remedial Law Review Notes under Atty Ferdinand Tan

What are those other Courts as may

The Supreme Court en banc shall be the

A3 S9(Basis of Rule 67)

Private property shall not be taken for

The Supreme Court may review, in an

Exercise original jurisdiction over

Other public ministers and

Over petitions for

A8 S5 P2(Basis of Rule 56)

Remedial Law Review Notes under Atty Ferdinand Tan

1. All cases in which constitutionality

5. all cases in which only an error or

A8 S5 P5 (basis of Rules of Court)

The SC shall have the power to

1. Protection and enforcement of

2. Pleading, practice, procedure in all

3. Admission to practice of law

5. Legal assistance to the

2. all cases involving the legality of

3. all cases in which the jurisdiction of

4. all criminal cases in which the

Such rules shall (Limits to SC-rule

Remedial Law Review Notes under Atty Ferdinand Tan

No law shall be passed reorganizing the

Authority of the court to hear and

All persons shall have the right to speedy

Each Commission shall decide by majority

CIVIL PROCEDURE PROPER

Place where action

Not a ground for

A ground for motu

No petition for review or motion for

A9A S7 (basis of Rule 64)

It extends to all controversies which

Remedial Law Review Notes under Atty Ferdinand Tan

It is confined to particular causes, or

Power of the court to take judicial

Jurisdiction conferred by law and

Jurisdiction of the court to the

Exclusive Original Jurisdiction

Refers to geographical area within

Remedial Law Review Notes under Atty Ferdinand Tan

In civil cases, assumes importance

courts shall not take cognizance of

In criminal cases, consideration of