Civpro Lecture Rule 19-50

theres manifrstation of preference to have his
counterclaim in the action.

EFFECT: w/ prejudice; adjudication in the
merits unless court orders otherwise
N.B Read at your own risk. May contain grammatical,

typographical and other errors. Most transcriptions are credited to:
AMEV.
RULE 17
DISMISSAL OF ACTIONS
Sec 2
EFFECT: w/o prejudice unless otherwise indicated in the order
Secs 1,2 and 4- dismissal by fault of plaintiff; upon motion
Sec. 3. Dismissal due to fault of plaintiff.
1.
2.
when a complaint be dismissed?

motion of D
motu propio by court
If, for no justifiable cause, the :
1) plaintiff fails to appear on the date of the
presentation of his evidence in chief on the
complaint, or
under old rules not added, its only added because
of the FERMIN JALOVER vs. PORFERIO YTORIAGA
failure to present evidence in chief. P was not
around on the scheduled date for the D to present
evidence hence the D filed a motion to dismiss:
ground for failure to prosecute. Trial judge
dismissed the complaint based on the ground
failure to prosecute; Upon MR opposed in two
grounds 1)order of dismissal is final 2)that theres
really ground for failure to prosecute
J Escolin ruled- no failure to prosecute here bec
there was already Ps presentation of evidence, the
effects are merely a waiver of his right to crossexamine and to obj to the admissibility of evidence.
private respondents' absence at the hearing
scheduled on January 6, 1970 "can only be construed
as a waiver on their part to cross-examine the
witnesses that defendants might present at the
continuation of trial and to object to the
admissibility of the latter's evidence.
The judgment in the absence of qualification , the
dismissal is w/ prejudice.
Under Sec 6 Rule 16, if the court grants
thecounterclaim
Escolin: Yes, just to recover your cause. Pinagastos
mo yung party, bayaran mo yon. Read the case of
HEIRS OF PINGA vs HEIRS OF SANTIAGO
2)to prosecute his action for an unreasonable length of
time, or
Sec. 4. Dismissal of counterclaim, cross-claim, or third-party

complaint.
The provisions of this Rule shall apply to the dismissal of any
counterclaim, cross-claim, or third-party complaint. A voluntary
dismissal by the claimant by notice as in section 1 of this Rule, shall
be made before a responsive pleading or a motion for summary
judgment is served or, if there is none, before the introduction of
evidence at the trial or hearing.
If there is none, its either walang sagot or sometimes in

in rem actions theres no opposition, if theres no
opposition, can be dismissed before introduction of the
evidence.
RULE 18
RE TRIAL
Sec 1 When Conducted Old rule: the clerk of court shall moved for
set of pre-trial
NEW RULE: the plaibntiff shall promptyly move for ex parte the case
be set fr trial. Failure- the court may dismiss for failure to prosecute
within reasonable time.
Sec 2 Nature and Purpose - When amendments may be allowed:
befre or after answer upon motion of plaintiff or pleader; it may be
allowed also if to cure defects. For i.e fails to statecause of action,
raised in objection of trial, may still amend kasi di naman ni raise
motion to dismiss. If upon motion b ydefendant not upon pre-trial,
upon 10 days of notice of order admitting the pleading. Amendment
can aso be done during pre-trial.
Sec. 3. Notice of pre-trial.
The notice of pre-trial shall be served on counsel, or on the party who
has no counsel. The counsel served with such notice is charged with
the duty of notifying the party represented by him.
-
Under OLD RULES: both party and cunsel

NOW!! If a party is represented by counsel, notice to the
counsel is notice to the party. It becomes the duty f
counsel to notify the schedule of preliminary conference.
Sec. 4. Appearance of parties.

It shall be the duty of the parties and their counsel to appear at the
pre-trial.
GR: parties and counsel shall appear in ore-trial conference
3)to comply with these Rules or any order of the court

- Re Order take note lesson Sec 16 of Rule 3 : if party
tydies, duty of counsel to inform the court of fact of
death and order substitution of representative to apper
for substitution. Without such procedure , court cannot
proceed in the case unless tapos n presentation of
evidence. The proper procedure to effect substitution is
nt by amendment but rather notice to the heirs to appear
w/in 30 days. If they fail to appear, require the executor
to open for settlement. Escolin: theres fundamental
defect also: If dismissal I not questione,d then thats the
law of the case. Res judicata, whethere decision is right or
worng, if theres final judgment, res judicata.
- HOW DEFENDNAT may prosecuto coubnterclaim:
i.
in the same or separate action
ii.
manifestation of preference that defendant
wants to prosecute counterclaim is not
necessary under Sec 3 while under Sec 2
XPNS: where a party is represented by atty-in-fact, he must be

clothed with SPA. What are the minimum powers for a valid
appearance in pre-trial cpnfeen: 1) to enter tot amicable selltemnt 2)
sumbit to ADR 3) to enter into stipulations or admissions.
-
Usually in coprotion, even the power to make

verifications and sign certification of forum shopping
Why shall the representative be armed w/ SPA? A:
Because these are acts of dominion/ownership. A
compromise isan act of ownership.
If juridical eprdoality, a CORPORATE SECRETARY
CERTIFICT where corsec atetts tajt Boar convened in a
meeting and passed reso authorizeing the aty in fact to
repreent. PAti mediation, lagay mo na rin, pre-trial
conference, meditaion,
EFFECT OF FAILURE: may be penalized under Sc 5 of Rule
18; dismissal w/ prejudice; presentation may be allowed
BVTC | ESCOLIN LECTURES

+ Transcription from AMEV
for ex parte its like asking the party in default (ask in

default; not to declare him in default)
REMEDY WHEN PARTY IS DECLRED IN DEFAULT:
A: motion to set aside order of default
REQS:
i.
FAME
ii.
MERITORIOUS DEFENSE
iii.
Must be VERIFIED
REMEDY for order of failure to appear : motion for
reconsideration
EFFECT if plaintiff fails to appear:
If you tried issues beyond stated in pre-trial, you object. If

you dont what will happen? Amenndment to conform to
evidence.
READ CIRCULAR 03-1-09 SC
Other Alternative Modes of Reoslution is to refer it to
Barangay Conciliaiton
May rfeer back to clerk of court:
1) Possible amicable settlements
2) Mark documents and exhibit
During PC, the clerk of courts shall also ascertain
admission of facts and due execution of evidence.
If all efforts to settle fail, the Trial judge shall:
EFFECT if plaintiff fails to appear:
The non-appearance of a party may be excused only :

1.
2.
if a valid cause is shown therefor ( may sakit) or

if a representative shall appear in his behalf fully
authorized in writing to enter into an amicable
settlement, to submit to alternative modes of
dispute resolution, and to enter into stipulations or
admissions of facts and of documents.
Sec. 6. Pre-trial brief. before pre-trial they are reqd to submit this
The parties shall file with the court and serve on the adverse party, in
such manner as shall ensure their receipt thereof at least three (3)
days before the date of the pre-trial, their respective pre-trial briefs
which
shall
contain,
among
others:
(a)
(b)
A statement of their willingness to enter into

amicable settlement or alternative modes of dispute
resolution, indicating the desired terms thereof;
alternative modes of dispute resolution
in Katarungang Pambrgy- even the law does not
require it the court may refer it to the brgy- that is
an alternative mode of dispute resolution
A summary of admitted facts and proposed
stipulation of facts;
- compare the complaint and answer
(c) The issues to be tried or resolved;

- factual and legal issues
(d) The documents or exhibits to be presented, stating the
purpose thereof;
1)
2)
3)
3 KINDS OF EVIDENCE
Object
Document formal offer after
Testimonial presented before a wtiness testify
After the last winess of party OFFER > object court
will rule on the objections; court then will determine the
most important witness (most important witness rule)
RULE 19
INTERVENTION
(1)
proceeding in a suit or action where 3 rd person is

permitted by the court either joining the P or D
3rd party complaint purpose: to make a person not et a
party in the case to be a party of the case; the initiative
does not come from the aprties of the casse. In
intwrvention, initiative is from not a party.
Intervention are sometimes allowed even on appeal
REQS in intervention:
1) Must be real-party in interest- one who will be
benefited or injured in the judgment of the court;
Note: intervention must always be by leave of court;
how may a 3rd person intervene?
party must file a motion to intervene
shall file motion for leave (w/ notice to all parties in the
action)
Purpose: not to obstruct nor nnesecessary delay of
machinery of trial but to afford one not orifgnal party yet
may inetrest and has right to protct
WHO MAY INTERVENE

Section 1. Who may intervene.
1.
A person who has a legal interest in the matter in

litigation, or
For i.e action of hereditary rights---heirs may
intervene when acts of administrator is prejudicial
to their interest, an interest in the estate of the
deceased.
2.
or an interest in the success of either of the parties,

or
for ie action for recovery of debt -principal debtor
has the right to intervene to defeat claim of P
3.
an interest against both, or

for i.e action for recovery of RP- person who claims
to be the owner of prop has a claim against both
parties may properly intervene in the action
4.
is so situated as to be adversely affected by a

distribution or other disposition of property in the
custody of the court or of an officer thereof may,
- kaya dun pa lang sa pre-trial may marking na

(e) A manifestation of their having availed or their
intention to avail themselves of discovery procedures or
referral to commissioners; and
(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.
-
pwd ka rin ma- as in default if D, dismissed if P
in pre-trial brief, be careful and explicitly limit your issues;

with leave of court, be allowed to intervene in the

action.
For i.e for recovery for money. the owner of
Personal prop, attached by writ, may intervene to
have the writ quashed
The court shall consider whether or not the
intervention will unduly delay or prejudice the
adjudication of the rights of the original parties, and
whether or not the intervenor's rights may be fully
protected in a separate proceeding.
Once intevrnetion is granted by the court, the intervenor is now

entitled to all notices. And failure to give notice to innetrvebor is not
bining to intervenor. Once it was granted, intervenor becomes a real
part in interest and therefore entiled to all notices. (METROBANK vs
PRESIDING JUDGE OF MANILA
-
In order for the intervenor to be allowed, he must be a

real party in interest = he will be benefited or injured by
the judgment
Sec. 2. Time to intervene.

The motion to intervene may be filed at any time before rendition
of judgment by the trial court. A copy of the pleading-inintervention shall be attached to the motion and served on the
original parties.
GR: cannot intervene while on appeal (Reason: might raise matters

when other arties have no more oportunit to rebut those claim)
XPNS: when CA made a ruling that the ombudsman has no authotiy
to suspend or dismiss a govt employee (an admin charge was filed
against govt employee so ombudsman imposed penalty. Employee
made an appeal to CA. CA ruled that ombudsman has noa uthoity to
impose such action SC. While the matter was pedning to SC, the
ombudsman made an intervention. It was allowed because to
portect its interes.
YES. An inteevention is a mere,collateral and ancillary to

the principal action. It is not an independent
proceecdings. The approval of agreement has been final
and executor. Therefor,a all ancillary issues become moot
and academic.
Sec. 3. Pleadings-in-intervention.
MEtrobank sued BPI Consortium for replevin over the

aircon units installe din in Good Earth Emporium buuldng
which was mortgaged b yGoodearth
Reycor Air Control System (supplied the air condition
units) filed a motion to intervene for the payment of 150k
w/c should be paid to him out of the debt from
Metrobank (hindi p daw sya nabayaran)
Court allowed chu intervention to protct its 150k unpaid
w/c should be given tohim from the proceeds of the loan
form EMtrobank. HTerafter, Metrobank and BPI filed a
compromise agreement w/c was approved. They then
filed a joint motion to dismiss. Court approved the
compromise anddismsised the case w/ prejudced
When Reycor knew about the C.Agrement, moved for the
Motion for Reconsideration.
TC granted MR filed by intevrenor. Thus the issue before
SC.
SC: reycor was not notified . fter the intevrenor has
appeared in court, the plaintiff has no absltue right out of
court by dismissal of action. Once the intervention is
allowed, intevrenor become sparty of the case and hence
etitled to all nmotices. In thid case, Reycor was never
notifed of the Compromise Agreement.
The intervenor shall file a :

1.
2.
complaint-in-intervention if he asserts a claim

against either or all of the original parties, or an
answer-in-intervention if he unites with the
defending party in resisting a claim against the
latter.
The interest of intevenor must be material and

direct (be benefited or affected b ythe
judgment)
Is the predecessor in interest of the defendant
an indispensable part? NO.
Sec. 4. Answer to complaint-in-intervention.

The answer to the complaint-in -intervention shall be filed within
fifteen (15) days from notice of the order admitting the same,
unless a different period is fixed by the court.
HEIRS OF OROSA vs MIGIRON

-
shld a complaint in intervention be answered?

Yes. The answer shall be filed w/in 15 days
from the the nptice of admitting the same.
real-party-in-interest: reconveyance or reversion- you
must established that you are the owner, not squatters
GR: Intervention is ancillary to the main case (ORDONEZ vs GUSTILO)
NOTES:
Plaintiff filed an action to enforce a reclamation contract

w/ Municipality of Rosario (defendants). Thereafter the
brgy captain and barangay officials intervened alleging
that the claimed area did not come from reclamation but
by accretion and no reclamation was done by plaintiff.
There was a Compromise Agrement bet the plaintiff and
respondent and submitted to the court.
Intervenors filed to set aside the Agreement. Court
denied it. While plaintiffs moved for joint dismissal of the
case
The claim of Goldenrod basis: in a seprate case, delta

Motors acquired the rights of Orosa (heir of original
applicant MAyuga) over the property as well as the
conflicting claims of Velasquez. That Goldnerod as seller
has the warranty to defend the property against claim of
any.
Intevenor here is successor-interest of present owner . Is
seller of property a real property in interest? NO. Because
ecomplete relief must be had. The underling reason to
consider a party indispensable: (1) that judgment cannot
ber eoslved without such party (2)issues cannot be
reoslved
NO. whatever direct and actual legal interest it may have
had over the land had been disposed of by it for value in
favor of the consortium in 1989 and that whatever
residual legal interest in the property can be premised on
Goldenrod's contractual undertaking, actually an express
warranty against eviction, is expectant or contingent in
nature. Presently, Goldenrod has no legal interest in the
property and its warranty can only be enforced by the
consortium if the latter is dispossessed of the land by
virtue of a proper action instituted by the Orosa heirs as
registered owners thereof. But, the legal interest which
entitles a person to intervene in a suit must be actual and

material, direct and immediate. A party seeking to

intervene in a pending case must show that he will either
gain or lose by the direct legal operation and effect of a
judgment.
In the present case, Goldenrod has failed to meet this
criteria and the lower court gravely abused its discretion
in permitting intervention after having overlooked this
matter.
uAlthogh seller warrants the buyer shall have

peacebl possession and title of property is
merely warranty to t cannot intervene. Why?
Already parted away its ownership
Intevrention is always by leave of court. Cort
may refuse intervention 1) if delay of the case
2) if it will expand the (blank)
To put it simply, if yung bay boyfriend mo may
nagkakagsuto iba= inteveention yun. Depende
sa chicks kung i-allow nya,
(RE LRA LRA is the clerk of court hence all the records and
administratie matters are within its office thats why such office
is a party in a Land registration case. Before, for purposes of
juridcitoton, for the court to acquire jurisdiction of the case, dapat
the tracing cloth is ma pass)
RULE 20
CALENDAR OF CASES
RULE 21
SUBPOENA
Comes from the latin word SUB & POENA under pain of penalty
1)
2)
to clerk of court, write a formal letter

(Greetings AM I request the issuance of
subpoena to the ff. person..ff. dates.. ff place)
The clerk of Court can issue subpoena.
However, when the applcition for subpoena to
a prisoner is made: When application for a
subpoena to a prisoner is made, the judge or
officer shall examine and study carefully such
application to determine whether the same is
made for a valid purpose.
Permission of the SC is with respect to: No
prisoner sentenced to death, reclusion
perpetua or life imprisonment and who is
confined in any penal institution shall be
brought outside the said penal institution for
appearance or attendance in any court unless
authorized by the Supreme Court.
Sec. 3. Form and contents.

A subpoena shall state the name of the court and the title of the
action or investigation, shall be directed to the person whose
attendance is required, and in the case of a subpoena duces tecum, it
shall also contain a reasonable description of the books, documents
or things demanded which must appear to the court prima facie
relevant.
Sec. 4. Quashing a subpoena.
The court may quash a subpoena duces tecum upon motion
promptly made and, in any event, at or before the time specified
therein if it is unreasonable and oppressive, or the relevancy of the
books, documents or things does not appear, or if the person in
whose behalf the subpoena is issued fails to advance the reasonable
cost of the production thereof.
Subpoena Testificandum required to attend in or for

the taking of his deposition
NBI may subpoena but cannot issue sanctions.
subpoena duces tecum- to require person to bring books,
documents or other records
TWO REQS FOR EVIDENCE BE ADMISIBLE

1.
Sec. 2. By whom issued.
For i.e sub poena duces tecum in books of

account, subpoena lang yung year
involved, you nee dnot inclsde all other
irerelavant dates.
The subpoena may be issued by:

1.
-
2.
the court before whom the witness is required to attend;

if the deposition is taken on a place other that where the
court sits (Manila) the taking of deposition in Angeles
City, the one who will issue is the Angeles court
the court of the place where the deposition is to be
taken;
3.
the officer or body authorized by law to do so in

connection with investigations conducted by said officer
or body; or
4.
Senate and certain laws that give power---NBI,

nagkakaiba lang sa penalty, NBI cannot penalize you, shld
still be the court
5.
any Justice of the Supreme Court or of the Court of

Appeals in any case or investigation pending within the
Philippines.
When application for a subpoena to a prisoner

is made, the judge or officer shall examine and
study carefully such application to determine
whether the same is made for a valid purpose.
Is it necessary that the Court shall approve for
application of subpoena? GR: no need. Just go
Evidence is relevant when it has a

relation to the fact in issue as to induced
belief in its existence or non-existence or
it tends toa resoanble degree to establish
probability or improality of fact in an
issue.
2.
Competent evidence
The court may quash a subpoena ad testificandum on the ground

that the witness is not bound thereby. In either case, the subpoena
may be quashed on the ground that the witness fees and kilometrage
allowed by these Rules were not tendered when the subpoena was
served.
When witness not bound for Subpoena?Sec 10

Rule shall not apply to a witness who(1) resides
more than one hundred (100) kilometers from
his residence to the place where he is to testify
by the ordinary course of travel, or to a(2)
detention prisoner if no permission of the
court in which his case is pending was obtained
Sec. 5. Subpoena for depositions.

Proof of service of a notice to take a deposition, as provided in

sections 15 and 25 of Rule 23, shall constitute sufficient authorization

for the issuance of subpoenas for the persons named in said notice
by the clerk of the court of the place in which the deposition is to be
taken. The clerk shall not, however, issue a subpoena duces tecum to
any such person without an order of the court.
-
Show to the court proof of service to take a deposition;

Kung mag take ka ng deposition you want to take for
instance the deposition of Mr. X, Do you have to go to
judge and seek his approval for the taking of
deposition?No. wirte to kalaban and witness that you will
take deposition on this date.
Different in subpoena duces tecum. But note that the
approval of the judge is only required or the taking of
deposition but not if the purpose is to brought before the
court in a pending case.
Sec. 6. Service.
Service of a subpoena shall be made in the same manner as personal
or substituted service of summons. The original shall be exhibited and
a copy thereof delivered to the person on whom it is served,
tendering to him the fees for one days attendance and the
kilometrage allowed by these Rules, except that, when a subpoena is
issued by or on behalf of the Republic of the Philippines or an officer
or agency thereof, the tender need not be made. The service must be
made so as to allow the witness a reasonable time for preparation
and travel to the place of attendance. If the subpoena is duces
tecum, the reasonable cost of producing the books, documents or
things demanded shall also be tendered.
-
Illustration: Escolins client is a bank (only bank engages in

pawnshop business)
Some agencies of govt has subpoena powrr in their

charte. Eg NBI. But if you do not appear, di ka ma
cocontempt here.
Sec. 10. Exceptions. The provisions of sections 8 and 9 of this Rule

shall not apply to a witness who resides more than one hundred
(100) kilometers from his residence to the place where he is to
testify by the ordinary course of travel, or to a detention prisoner if
no permission of the court in which his case is pending was obtained
NOTES:
(LIEBKNOW vs PHILIPPINE VEGTABLE OIL)
Defect here: asked issuance of the subpoena of the entire records
. = not allowed, because that tantamount to fishing of evidence. If
you fish evidence, must adopt modes of discovery. In subpoena, it
must be specific. The motion to vacate or set aside the subpoena
gives the court the requisite opportunity to examine the issues raised
by the pleadings in the cause and to consider not only the relevancy
of the evidence which is to be elicited but also to consider whether
an order for the production of the document would constitute an
unlawful invasion of privacy.
In determining whether the production of the documents described
in a subpoena duces tecum should be enforced by the court, it is
proper to consider, first, whether the subpoena calls for the
production of specific documents, or rather for specific proof, and
secondly, whether that proof is prima facie sufficiently relevant to
justify enforcing its production. A general inquisitorial examination of
all the books, papers, and documents of an adversary, conducted
with a view to ascertain whether something of value may not show
up, will not be enforced ( bec that is fishing for evidence).
Sec. 7. Personal appearance in court.

RULE 22
A person present in court before a judicial officer may be required to

testify as if he were in attendance upon a subpoena issued by such
court or officer.
-
if a person is in court, you cannot refuse if called by the judge if you

will not answer- contempt of court. Why? Because if youre inside in
the courtroom. You can testify as if you are summoned.
Sec. 8. Compelling attendance. In case of failure of a witness to
attend, the court or judge issuing the subpoena, upon proof of the
service thereof and of the failure of the witness, may issue a
warrant to the sheriff of the province, or his deputy, to arrest the
witness and bring him before the court or officer where his
attendance is required, and the cost of such warrant and seizure of
such witness shall be paid by the witness if the court issuing it shall
determine that his failure to answer the subpoena was willful and
without just excuse.
COMPUTATION OF TIME
Illustration:
File motion to dismiss (interrupsts; you only have the balance of the
priod but no less than 5 days)
LUZ vs NAC
RULES apply only on the extension of time
1)
2)
causes of unjustifiable refusal to obey a sub poena?

1.
2.
3.
-
court may issue a warrant for the arrest of witness and make him
pay the cost for such warrant and seizureSec 8
refusal to obey sub poena is a contempt to issue itsec 9
if sub poena not issued by court- disobedience will be punished by
applicable laws or rules.
congress may sariling rules- arrest ka nila
Must file before the expiration of the original period In

this case, 15 dyas. If it falls on Sunday, Friday pa lang i-file
mo na. Can you file on Sunday? NO. If you file it on next
day, late.
The counting then is upon the expiration of the original
period, whther the last day of original period Is Sunday or
holiday.
INTERVENTION WHEN NOT ALLOWED

i.
If it will unduly delay or prejudice the rights of the

intevring parties
READ: BIG COUNTRY RANCH CORP vs CA Oct 12, 1993

Sec. 9. Contempt. Failure by any person without adequate cause to
obey a subpoena served upon him shall be deemed a contempt of
the court from which the subpoena is issued. If the subpoena was not
issued by a court, the disobedience thereto shall be punished in
accordance with the applicable law or Rule.
F: Intervenor her was filing anintervention injecting new and

unrelated issues on claims and ownership not related to the issues
raised by the parties. Mr. X filed an action for rpelevin for the return
of 2 barges against Phil Coast Guard then the court garnted the writ
of replevin after plaintiff filed bond of 600K, here comes Intervenor
#1, X saing that he has an interest over the barges, that they were
him upon obtaining from auction sale. Court allowed intervention

since there were documents of sherifs sale. Then Intevreno #2- Y,

also intevne claiming hes the owner saying that while theres
public aauction, nonetheless, theres many defects on the auction
sale. TC denied Ys intervention.
TC: it will unduly delay the proceedings and prjeudcie the rights of
the parties. The issues raised by intevrnor Y are unrelated to the
issues in the main case. He was attacking the validy of auction sale
in favor of X
SC: TC correct. New and unrelated conflicting issues of ownership ,
etc. could ineffectively cause delay. It isfirmly settled in this
jruisdiciton that intervention cant be allowed if 1) it will unduly
delay 2) cannot change the nature the ction of the case 3)remedy of
intevrntion not porper when it has effect of retardingthe suit.
Intervention will not be allowed if it will delay the resolution of the
case, if new and conflicting clims of issues
RULE 30
TRIAL
-
2.
-
WHAT IS THE ORDER OF TRIAL

Sec. 5. Order of trial. Subject to the provisions of section 2 of Rule
31 ( Consolidation and Severance), and unless the court for special
reasons otherwise directs, the trial shall be limited to the issues
stated in the pre-trial order and shall proceed as follows:
-
(a)
an examination before a competent tribunal of facts

and law in a case for the purpose of determining
such issue. (Ballantine)
(c) The third-party defendant, if any, shall adduce

evidence of his defense, counterclaim, cross-claim and
fourth-party complaint;
In Pre-trial itself, the court will already ask on their

available dates.
You do trial if there are controverted factual matters. Puti
ditto tapos sa kabila itim. But if both parties agree that
its b;ack. Court will render judgment that it is indeed
color black. No need to undergo trial since admitted na.
(d) The fourth-party, and so forth, if any, shall adduce

evidence of the material facts pleaded by them;
(e) The parties against whom any counterclaim or crossclaim has been pleaded, shall adduce evidence in support
of their defense, in the order to be prescribed by the
court;
(f) The parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons and in
the furtherance of justice, permits them to adduce
evidence upon their original case; and
- pagdating sa rebuttal, only to rebut the evidence of the
defense only but you cannot anymore present evidence
in-chief to support your complaint unless the court for
good reason and in furtherance of justice
In reality: such doesnt happen.

eg there are 35 cs scheduled for the day, judge will come
10am---adjourn, adjourn etc.
by the time na natapos na tawagan ng 35cs 1230 na,- lack
of material time- the cs is reset.
(g) Upon admission of the evidence, the case shall be

deemed submitted for decision, unless the court directs
the parties to argue or to submit their respective
memoranda or any further pleadings.
Sec. 3. Requisites of motion to postpone trial for absence of evidence.

A motion to postpone a trial on the ground of absence of evidence
can be granted :
- Generally when is the case deemed submitted for

decision, upon submission of evidence.
1.
only upon affidavit showing the materiality or

relevancy of such evidence, and
2. that due diligence has been used to procure it.
But if the adverse party admits the facts to be given in
evidence, even if he objects or reserves the right to their
admissibility, the trial shall not be postponed.
Dont postpone if parties admit the facts but I reserve
my right
Sec. 4. Requisites of motion to postpone trial for illness of party or

counsel. A motion to postpone a trial on the ground of illness of a
party or counsel may be granted if it appears upon :
1.
affidavit (refers to the party) or sworn certification

(issued by the physician) that the presence of such
party or counsel at the trial is indispensable and
The plaintiff shall adduce evidence in support of his

complaint;
present evidence in chief to support his action
(b) The defendant shall then adduce evidence in support

of his defense, counterclaim, cross-claim and third-party
complaint;
Sec. 2. Adjournments and postponements. A court may adjourn a trial

from day to day, and to any stated time, as the expeditious and
convenient transaction of business may require, but shall have no
power to adjourn a trial for a longer period than one month for each
adjournment, nor more than three months in all, except when
authorized in writing by the Court Administrator, Supreme Court.
-
Take note the importance of the issues laid down in the

pre-trial kaya tignan mabuti kung may mali dun or else
youll be bound on those issues.
(Side lesson: You cant have it all)
the pre-trial sets forth the manner, issues and will control the trialyou cannot subject a non-issue to the trial
Section 1. Notice of trial. Upon entry of a case in the trial calendar,

the clerk shall notify the parties of the date of its trial in such
manner as shall ensure his receipt of that notice at least five (5) days
before such date.
-
that the character of his illness is such as to render

his non-attendance excusable.
In actual practice, if may LBM- no need for affidavit since
u need not go to hospital( qn: baka medical
certificatep376 of Regalado)
- Why is it necessary to know when is it deemed to be

sumbittedf or decision? To toll the running of period.
(The Sandiganbayan is composed of subdivisions
composing 3 judges. When they shall render decision? If
if its in the exercise of original jurisdicition, acting as TC
then misut rneer decision w/in 90 days. Where it execise
appellate jurisdciton, 1 year.
If several defendants or third-party defendants, and so

forth, having separate defenses appear by different
counsel, the court shall determine the relative order of
presentation of their evidence.

If there are lot of parties, lawyers consider it as the more

the merrier :D Magulo pero Masaya (Escolin), Problems
of Physician- How to make them talk, a doctor wont
testify against a fellow doctor.
the rules here prescribing order of trial the purpose is

FOR ORDERLY PROCEDURE IN COURT WHICH MUST BE
FOLLOWED SO THAT THERE WILL BE NO SURPRISES OR
DELAYS IN THE ADMIN OF JUSTICE
judgment on the facts agreed upon, without the introduction of

evidence.
If the parties agree only on some of the facts in issue , the trial shall
be held as to the disputed facts in such order as the court shall
prescribe.
if only partial- trial on those not agreed
WHEN MAY ADDITIONAL EVIDENCE BE GRANTED( even during

rebuttal)? interest of justice usually when evidence adduced is
1. NEWLY DISCOVERED, OR
2. WHEN OMMITED through INADVERTENCE OR MISTAKE
OR
3. WHEN ADDTL EVIDENCE IS MATL AND NOT MERELY
COMULATIVE OR IMPEACHING.
Sec. 7. Statement of judge. During the hearing or trial of a case any

statement made by the judge with reference to the case, or to any
of the parties, witnesses or counsel, shall be made of record in the
stenographic notes.
Sec. 8. Suspension of actions. The suspension of actions shall be

governed by the provisions of the Civil Code.
Where defendant admits the allegations in the complaint

and pleads affirmative efenses, there will be a reversal
order of trial. (YU vs MAPAYO)
DISMISSAL FOR FAILURE TO PROSECUTE; NOT PROPER
WHERE ALLEGATIONS IN COMPLAINT ADMITTED IN
ANSWER. Where the answer admits defendant's
obligation as stated in the complaint, albeit special
defenses are pleaded, plaintiff has every right to insist
that it is for defendant to come forward with evidence in
support of his special defenses before P be required to
adduce his rebuttal evidence. Defendant not having
supported his special defenses, the dismissal of the case
for failure to prosecute on the part of counsel for the
plaintiff was manifestly untenable and contrary to law.
SECTION 2 RULE 129, REVISED RULES OF COURT
SUPPORTS PLAINTIFF'S REFUSAL TO PRESENT EVIDENCE.
Plaintiffs counsel refused to comply with the order of
the trial court requiring plaintiff to present his evidence.
Instead of calling his witnesses, he moved the court to
present them after the defendant had presented their
evidence. Such a stand is supported by Section 2 of the
Revised Rule of Court 129.1
Now Rule 119 Sec. 11. Order of trial. The trial shall proceed in the
following order:
(a)
Sec. 6. Agreed statement of facts. The parties to any action may

agree, in writing, upon the facts involved in the litigation, and
submit the case for
The prosecution shall present evidence to prove the charge and, in

the proper case, the civil liability. (evidence in chief)
(b) The accused may present evidence to prove his defense and damages
( pano to di ka naman pwd mag-file ng counter-claim?), if any, arising, from
the issuance of a provisional remedy in the case.
(c) The prosecution and the defense may, in that order, present rebuttal
and sur-rebuttal evidence unless the court, in furtherance of justice, permits
them to present additional evidence bearing upon the main issue. bearing
upon the main case- pag present ng evidence prosecution must prove,
then presentation of the rebuttal (accused) after this the prosecution can
no longer present his evidence. (reason must be controlling. so that court
may re-open it)
in Crim pro- unless signed by the party and his counsel.
Sec. 9. Judge to receive evidence; delegation to clerk of court. The

judge of the court where the case is pending shall personally receive
the evidence to be adduced by the parties. However, in default (no
answer) or ex parte hearings,(for i.e failure to appear in pre-trial)
and in any case where the parties agree in writing, the court may
delegate the reception of evidence to its clerk of court who is a
member of the bar. The clerk of court shall have no power to rule on
objections to any question or to the admission of exhibits, which
objections shall be resolved by the court upon submission of his
report and the transcripts within ten (10) days from termination of
the hearing.
-
GR: presentation of evidence shall be recived personally

of judge
XPN: (1) ex parte and default (2) agreement
RULE 31
CONSOLIDATION OR SEVERANCE
Section 1. Consolidation. When actions involving a common
question of law or fact are pending before the court, it may order a
joint hearing or trial of any or all the matters in issue in the actions;
it may order all the actions consolidated; and it may make such
orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay.
If there are many actions filed before a court involving
common question of law and fact
For i.e all of us are passengers in a bus where an accident
happened: ma sue breach of contract and quasi-delict;
can you sue both? YES. In the alternative or otherwise
(kassi youre unsure) In joinder of cause of action, you
may join two causes of action even if they are not related
to each other for i.e case against quasi delict and breach
of contract)
Situation: If one of the passengers reside in Pasig, pwede
ba majoin
if I filed in Pasig- cant be consolidated bec different
courts ; Re before the court.
- it can only be done in furtherance of justice

(d) Upon admission of evidence of the parties, the case shall be deemed
submitted for decision unless the court directs them to argue orally or to
submit written memoranda.
(e) When the accused admits the act or omission charged in the complaint
or information but interposes a lawful defense, the order of trial may be
modified.
st
- self-defense, reversed trial. Accused will be the 1 to present evidence.
Sec. 2. Separate trials. The court, in furtherance of convenience or to

avoid prejudice, may order a separate trial of any claim, cross-claim,
counterclaim, or third-party complaint, or of any separate issue or
of any number of claims, cross-claims, counterclaims, third-party
complaints or issues.
- because they are severable. In an expropriation case for i.e,
Esolcin is a ___ and has a special defense. He may ask for separate
trial.

RULE 32
TRIAL BY COMMISSIONER
WHEN:
1.
2.
written consen of the parties- sec 1

when parties do not consent, but COURT in certain cases
- sec2
Section 1. Reference by consent. By written consent of both parties,

the court may order any or all of the issues in a case to be referred
to a commissioner to be agreed upon by the parties or to be
appointed by the court. As used in these Rules, the word
"commissioner" includes a referee, an auditor and an examiner.
Sec. 2. Reference ordered on motion. what cases may be referred
to the court ( motu propio) ? When the parties do not consent, the
court may, upon the application of either or of its own motion
(motu Propio), direct a reference to a commissioner in the following
cases:
(a) When the trial of an issue of fact requires the examination of a
long account ( mahaba lalo na accounting) on either side, in which
case the commissioner may be directed to hear and report upon the
whole issue or any specific question involved therein;
(b) When the taking of an account is necessary for the information
of the court before judgment, or for carrying a judgment or order
into effect;
to pay xx amt for yr, 2% above London Interbank
overnight rate ( LIBOR)- (what rate bank lends each other)
2% SIBOR ( Singapore interbank overnight rate)
(c) When a question of fact, other than upon the pleadings, arises
upon motion or otherwise, in any stage of a case, or for carrying a
judgment or order into effect.
Sec. 3. Order of reference; powers of the commissioner. When a
reference is made, the clerk shall forthwith furnish the
commissioner with a copy of the order of reference. The order may
specify or limit the powers of the commissioner, and (POWERS as
highlighted)
1.
2.
3.
may direct him to report only upon particular issues,

or
to do or perform particular acts, or
to receive and report evidence only, and may fix the
date for beginning and closing the hearings and for
the filing of his report.
Subject to the specifications and limitations stated in the order, the

commissioner has and
1.
2.
3.
4.
shall exercise the power to regulate the proceedings

in every hearing before him and to do all acts and
take all measures necessary or proper for the
efficient performance of his duties under the order.
He may issue subpoenas and subpoenas duces
tecum, swear witnesses, and
unless otherwise provided in the order of reference,
he may rule upon the admissibility of evidence.
how trial or hearing is done?

-
he trial or hearing before him shall proceed in all respects

as it would if held before the court. Thats why you also
address commissioner as your honor.
Sec. 4. Oath of commissioner. Before entering upon his duties the

commissioner shall be sworn to a faithful and honest performance
thereof.
Sec. 5. Proceedings before commissioner. Upon receipt of the order

of reference and unless otherwise provided therein, the
commissioner shall forthwith set a time and place for the first
meeting of the parties or their counsel to be held within ten (l0)
days after the date of the order of reference and shall notify the
parties or their counsel.
Sec. 6. Failure of parties to appear before commissioner. If a party
fails to appear at the time and place appointed, the commissioner
may :
1.
2.
proceed ex parte or,

in his discretion, adjourn the proceedings to a future day,
giving notice to the absent party or his counsel of the
adjournment.
Sec. 7. Refusal of witness. The refusal of a witness to obey a

subpoena issued by the commissioner or to give evidence before
him, shall be deemed a contempt of the court which appointed the
commissioner.
Sec. 8. Commissioner shall avoid delays. It is the duty of the
commissioner to proceed with all reasonable diligence. Either party,
on notice to the parties and commissioner, may apply to the court
for an order requiring the commissioner to expedite the
proceedings and to make his report.
Sec. 9. Report of commissioner. most important
-
WHEN: Upon the completion of the trial or hearing or

proceeding before the commissioner, he shall file with
the court his report in writing upon the matters
submitted to him by the order of reference.
When his powers are not specified or limited, he shall set
forth his findings of fact and conclusions of law in his
report. He shall attach thereto all exhibits, affidavits,
depositions, papers and the transcript, if any, of the
testimonial evidence presented before him.
but in sec 3- court may limit- when to start and when to
end- time table
Sec. 10. Notice to parties of the filing of report.

WHEN AND HOW PARTIES MAY OBJECT TO COMM REPORT - Upon
the filing of the report, the parties shall be notified by the clerk, and
they shall be allowed ten (l0) days within which to signify grounds of
objections to the findings of the report, if they so desire. Objections
to the report based upon grounds which were available to the
parties during the proceedings before the commissioner, other than
objections to the findings and conclusions therein set forth, shall not
be considered by the court unless they were made before the
commissioner.
-
if you have objections in hearing put it in writing /record

or else it may be disregarded or not entertained on the
hearing
However, evein if not object re findings or conclusions,
made by the Commisioner, you may do so.
Sec. 11. Hearing upon report. Upon the expiration of the period of
ten (l0) days referred to in the preceding section, the report shall be
set for hearing, after which the court shall issue an order adopting,
modifying, or rejecting the report in whole or in part, or
recommitting it with instructions, or requiring the parties to present
further evidence before the commissioner or the court.
-
Q: Effect of lack of noties of parties to Commisoners

report. Notice must be sent to the parties to give them
the opportunity to object. Failure to do so constitutes as
violation to substantial rights. (MANILA tRADE vs PHIL
LABOR UNION) Although parties are not notified and
court failed to set for hearing, if parties APPEARED and ws
given the opportunity to be heard, the reqt oof due

process has been met. However in one case, it was

considered violation (DE LARAMA STEAMSHIP CO.) When
the court assigned accountants , it is a clear violation of
due process without notifying the parties .
Q: Is the commisioners report binding upon the court?
NO. Court is free to adopt, reject and it may receive
urhter evidence. However, pursuant to Sec 12, it is an
exception. It is binding upon the parties.
cannot file an APPEAL if

denied. Why? Constitutes
double jeopardy
Sec. 12. Stipulations as to findings. When the parties stipulate that a

commissioners findings of fact shall be final, only questions of law
shall thereafter be considered.
when it is mandatory to refer it to the Commissioner?
only after the P has rested his cs may the D move for
demurrer
when you speak to demurrer- P was not able to prove his
cs- no cause of action- was not able to prove his right
failure to state cause of action right- obli-delict not
stated
IN CRIMINAL CASE- effect- if denied
1.
2.
expropriation
partition
does the accused still has right to present evidence?

depends:
Sec. 13. Compensation of commissioner. The court shall allow the

commissioner such reasonable compensation as the circumstances
of the case warrant, to be taxed as costs against the defeated party,
or apportioned, as justice requires.
1.
2.
RULE 33
DEMURRER TO EVIDENCE
-
rule 119- Sec. 23. Demurrer to

evidence. After the prosecution
rests its case, the court may
dismiss the action on the ground
of insufficiency of evidence
(another difference)(1) on its own
initiative
after
giving
the
prosecution the opportunity to be
heard or (2) upon demurrer to
evidence filed by the accused with
or without leave of court.
A motion to dismiss the case filed by the defendant after

plaintiff has rested its case on the ground of insufficiency
of evidence. In CrimPro, a motion for judgment on
demurrer to evidence is allowed.
Section 1. Demurrer to evidence. After the plaintiff has completed

the presentation of his evidence, the defendant may move for
dismissal on the ground that upon the facts and the law the plaintiff
has shown no right to relief.
If his motion is denied, he shall have the right to present evidence.
If the motion is granted, but on appeal the order of dismissal is
reversed he shall be deemed to have waived the right to present
evidence.
If the court denies the demurrer

to evidence filed with leave of
court, the accused may adduce
evidence in his defense. When
the demurrer to evidence is filed
without leave of court, the
accused waives the right to
present evidence and submits the
case for judgment on the basis of
the evidence for the prosecution.
EFFECTS OF FILING:
1.
Defendant does not thereby waive his right to present

evidence in the event motion is denied. However, if it is
granted and the order of dismissal is rverrsed on appeal,
thats the ime defendant loses his right to present (why ?
the appellate court shall render judgment for the plaintiff
on his evidence alone)
compare this in demurrer to evidence in crimpro
CRIMINAL CASE
IF granted- effect of acquittal
If denied depends:
i.
ii.
If filed w/ leave of
court before filing
demurrer- - accused
has still the right to
present evidence in
his behalf
if the accused did
not file motion for
leave
to
file
demurrer- if deniedaccused waived his
right to present
evidence in chief
XXX
-
CIVIL CASE
If granted the order of
dismissal is reversed on
appeal, defendant loses his
right to present
If denied defendant does

not waive his right to
present evidence
if filed w/ leave- granted- but the motion for

demurrer was deniedaccused has still the right to
present evidence in his behalf
if the accused did not file motion for leave to file
demurrer- if deniedaccused waived his right to
present evidence in chief
The order denying the motion for leave of court to file

demurrer to evidence or the demurrer itself shall not be
reviewable by appeal or by certiorari before judgment.
reason for the difference
crim- if w/o leave- deemed waived right to present
evidence
in civpro- leave or w/o leave is not necessary
reason- in civ cs you can appeal whether denied or
granted, if denied- present evidence ; if granted- time
when movant waived
unlike in crimcase- if there is acquittal- when to motion to
demurrer to evidence is granted it is = to acquittal,
prosecution can no longer appeal bec barred by DJ
civ cs- P was not able to prove his cs or cause of action,
can a motion ask for judgment? yes, summary judgment,
motion for judgment for demurrer to evidence
RULE 34
JUDGMENT ON THE PLEADINGS

Where defendants admitted all alegatiobs of the

complaint consisting of the xistence of debt and its snonpayment, failure of defendant to raise material issues in
the answer, judgment on the pleadings was proper. What
they did is to mereky plead an excuse (that they had
requested plaintiff to wait because apellants many
accounts receivable had not yet been collected is no
defense, for a debtor can not delay payment due just to
suit its convenience, and the creditor is not an underwriter
of his debtor's business unless so stipulated. The denial of
the averment concerning the stipulated fees of plaintiff's
attorney tendered no genuine issue, for even without
such allegation, it was discretionary in the court to allow
reasonable attorney's fees by way of damages, if it found
it just and equitable to allow their recovery (Civil Code,
Article 2208). Nor does the denial of the complaint's
averments concerning the fraudulent removal and
disposition of defendant's property constitute a bar to a
judgment on the pleadings, since the defendant neither
claimed nor asked for any damages on account of the
issuance and levy of the writ of attachment.. (APELARIO
vs CHAVEZ & CO.,)
One who prays for judgment on the pleadings without
offering proof as to the truth of his own allegations and
without giving the opposing party and opportunity to
indroduce evidence must be understood to admit the
truth of all the material and relevant allegatiobs of the
opposing party and to rest his motion for judgment upon
those allegations taken together with such of his own as
are admitted in the pleadings. (FALCASANTOS vs HOW SUY
CHING)
Section 1. Judgment on the pleadings.
2.
Defendant says I admit . Theres no more factual

controvers. The court may made its own conclusion on
the basis of admitted facts in the pleadings.
Material averments: constituiong the cause of action,
rights, delict or wrong
the court may, on motion of that party, direct judgment on such

pleading.
where no judgment on pldg may be had- However, in actions for
declaration of nullity or annulment of marriage or for legal
separation, the material facts alleged in the complaint shall always be
proved.- bec the family is protected by the State, strong family means
strong nation.
Rule 8Sec. 10. Specific denial. A defendant
must specify each material allegation of fact
the truth of which he does not admit and,
whenever practicable, shall set forth the
substance of the matters upon which he
relies to support his denial. Where a
defendant desires to deny only a part of an
averment, he shall specify so much of it as is
true and material and shall deny only the
remainder. Where a defendant is without
knowledge or information sufficient to form a
belief as to the truth of a material averment
made in the complaint, he shall so state, and
this shall have the effect of a denial.
FALCASANTOS vs HOW SU CHING- F: the elements of legal

redemption were admitted but meron syang special defense: that
the legal redemption has already prescribed. Plaintiff then filed
motion for judgment on the pleadings.
TC: that the 9 days has not yet expired since the sale was not
recorded
WHEN:
1.
Where an answer fails to tender an issue, or it did not

make a specific denial, it is a general denial ( effectdeemed admitted matl averments except unliquidated
damages
When an answer deemed to tender an issue . Theres
denial but not specific denial under Sec 1 of Rule 8 or
assuming theres specific denial, in other instances like
negative pregnant , where theres specific denial
nonetheless not under oath and therefore theres an
admission only on genuineness of the document.
The answer would fail to tender an issue if it does not
comply with the requirements for a specific denial set out
in Section 10 (or Section 8) of Rule 8; and it would admit
the material allegations of the adverse party's pleadings
not only where it expressly confesses the truthfulness
thereof but also if it omits to deal with them at all. Now, if
an answer does in fact specifically deny the material
averments of the complaint in the manner indicated by
said Section 10 of Rule 8, and/or asserts affirmative
defenses (allegations of new matter which, while
admitting the material allegations of the complaint
expressly or impliedly, would nevertheless prevent or bar
recovery by the plaintiff) in accordance with Sections 4
and 5 of Rule 6, a judgment on the pleadings would
naturally not be proper.
otherwise admits the material allegations of the adverse
partys pleading,
SC: In favor of plaintiff. SC held that defendant admitted all the

allegations.
RULE: When a party files motion for judgment of the pleadings, the
effect of it is that plaintiff also admits the truth of all the material
and relevant allegatiobs of the opposing party and to rest his motion
for judgment upon those allegations taken together with such of his
own as are admitted in the pleadings.
-
BOTH PARTIES ADMIT!!

If you file motion for judgment on pleadings, you are
actually adking the court to forego with th presentation
of evidence since the amterial averments are already
admitted. However, if you do that as plaintiff and you
didn not present prove of evidence and since you also
deprive the defenadant the opportunity to present
evidence, then the movant is deemed to admit also the
material averment of opposing partys pkelading. Hence,
taking together the two pleadings, the movant rests his
case based on the two pleadings. (The underlying
principle here is fairness.)
Sec. 11. Allegations not specifically denied deemed admitted.

Material averment in the complaint, other than those as to the
amount of unliquidated damages, shall be deemed admitted when
not specifically denied. Allegations of usury in a complaint to
recover usurious interest are deemed admitted if not denied under
oath.
reply Is not mandatory except the basis of the action is an
actionable doc- applicable both as to the complaint and answer

10
RULE 35
SUMMARY JUDGMENT
1.
2.
Summary judgment procedure is a method for promptly

disposing of actions in which there is no genuine issue as
to any material fact.\
WHEN:
Claimant- A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory
relief may, at any time after the pleading in answer
thereto has been served ( dapat may answer na), move
with supporting affidavits, depositions or admissions for a
summary judgment in his favor upon all or any part
thereof.
Defendant at any time , even before answer; A party
against whom a claim, counterclaim, or cross-claim is
asserted or a declaratory relief is sought may, at any time
, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor as to all
or any part thereof. (Sec 2)
Q: Instead of answer, defendant files motion for summary
judgment, can that be allowed? YES. For the defendant,
theres no genuine issue or material fact.
For i.e GALICIA vs POLO
F: Prior to action or recover of ownership , there was an
unlawful detainer cae. Plaintiff who became the defendat
of second case, sued Y forcible entry. Theres award for
damages, Y does not have capacity to pay. Hence, the
land was attached and subsequently sold to satisfy the
judgment. X is the highest bidder. There was
consolidation of ownership. Here comes Y suing for
ownership. Instead of filing an answer, X filed motion for
summary judgment satingHoy ako ownr nito kasi natalo
ka. Judge granted the motion. Issue: Is there genuine
issue of material fact? YES. No more issue.
However, if its the plaintiff who filed, it can only be done
after issues has been joined on his claim. Prior to that
cannot detwrmine if its proper for summary judgment or
not.
controversy and what are actually and in good faith controverted. It

shall thereupon make an order specifying the facts (material facts)
that appear without substantial controversy, including the extent to
which the amount of damages or other relief is not in controversy,
and directing such further proceedings in the action as are just. The
facts so specified shall be deemed established, and the trial shall be
conducted on the controverted facts accordingly.
Sec. 5. Form of affidavits and supporting papers. reqts:
1.
2.
3.
4.
Supporting and opposing affidavits shall be made on

personal knowledge,
shall set forth such facts as would be admissible in
evidence ( 2 rules: 1. relevant and 2. not comptent,
excluded by the rules) ,
and shall show affirmatively that the affiant is
competent to testify on the facts ( those who can
perceive and in perceiving can be made known their
perception eg. deaf ka- you cannot make known
your perception) to the matters stated therein.
Certified true copies of all papers or parts thereof
referred to in the affidavit shall be attached thereto
or served therewith.
SUMMARY JUDGMENT
PLEADINGS
Based on
depositions,
affidavits
the pleadings, based

solely
on
the
admissions and admissions contained in the
pleadings
and
its
attachments.
Available to both plaintiff and generally available only to the

defendant
plaintiff, unless the defendant
presents a counterclaim.
There is
The answer fails to tender an

issue or there is an admission
of material allegations.
no genuine
issue of facts between the
parties, i.e. there may be issues
but these are irrelevant
10-day notice required
PROCEDURE
WHEN:
-
JUDGMENT BASED ON
3-day notice required
May be interlocutory or on the On the merits

merits
Motion must be served w/in 10 days

(PNB vs PHIL LEATHER CO)
Sec. 3. Motion and proceedings thereon. The motion shall be served

at least ten (10) days before the time specified for the hearing (
exception to 3 day notice rule- kasi he shld file an affidavit here).
The adverse party may serve opposing affidavits, depositions, or
admissions at least three (3) days before the hearing. After the
hearing, the judgment sought shall be rendered forthwith if the
pleadings, supporting affidavits, depositions, and admissions on file,
show that, except as to the amount of (unliquidated) damages,
there is no genuine issue as to any material fact ( facts constituting
Ps or Ds cause of action) and that the moving party is entitled to a
judgment as a matter of law.
Defendant here admitted all the allegations xcept on the amount of

the payment (saying na yes may utang pero compute ko pa yung
actual amount) . Hence, palitniff filed a motion for summary
judgment
SC:
Escolin: AMterial facts: May utang ba? Nabayran ba? The question
re how much is not a material genuine issue, such ca be resolved n
other means say for i.e, affidavit.
URMANENTA vs MANZANO
Sec. 4. Case not fully adjudicated on motion. ( If case cannot be fully
adjudicated on motion)If on motion under this Rule, judgment is not
rendered upon the whole case or for all the reliefs sought and a trial
is necessary, the court at the hearing of the motion, by examining
the pleadings and the evidence before it and by interrogating
counsel shall ascertain what material facts exist without substantial
Plaitniff sued to recover a homestead land. (Cadastre subject to

cadastral proceedings * it is the government that initates the land
regsitarion, each one is called to question , as distinguished to
applicarion for land registration* initiative here comes from the
owner of the land) that defendant tookpossession thereof. He
attached the ff documents : order of Director of lands, another

11
order of Director of land approving final. Defendant field motion to

dismiss for lack of cause of action attaching to his motion: order of
director of lands confirming th ownership of Manzano, certificate
that disputed land has been declared public land. TC then denied
motion to dismiss. Defendant then filed an answer alleging that he
has no legal interest over subject land except as tenant of Tedora
Manzano.
-
The material issue of fact here: ownership A: no interest
VERGARA vs SUELTO
-
GR: WHEN ANSWER FAILED TO TENDER AN ISSUE a

judgment on pleadings is not proper: The answer would
fail to tender an issue if it does not comply with the
requirements for a specific denial set out in Section 10 (or
Section 8) of Rule 8; and it would admit the material
allegations of the adverse party's pleadings not only
where it expressly confesses the truthfulness thereof but
also if it omits to deal with them at all. Now, if an answer
does in fact specifically deny the material averments of the
complaint in the manner indicated by said Section 10 of
Rule 8, and/or asserts affirmative defenses (allegations of
new matter which, while admitting the material
allegations of the complaint expressly or impliedly, would
nevertheless prevent or bar recovery by the plaintiff) in
accordance with Sections 4 and 5 of Rule 6, a judgment
on the pleadings would naturally not be proper.
XPN: But even if the answer does tender issues and
therefore a judgment on the pleadings is not proper a
summary judgment may still be rendered on the plaintiff's
motion if he can show to the Court's satisfaction that
"except as to the amount of damages, there is no genuine
issue as to any material fact," 18 that is to say, the issues
thus tendered are not genuine, are in other words sham,
fictitious, contrived, set up in bad faith, patently
unsubstantial. (VERGARA vs SUELTO)
Sec. 6. Affidavits in bad faith. Should it appear to its satisfaction at

any time that any of the affidavits presented pursuant to this Rule
are presented in bad faith, or solely for the purpose of delay, the
court shall forthwith order the offending party or counsel to pay to
the other party the amount of the reasonable expenses which the
filing of the affidavits caused him to incur, including attorneys fees.
It may, after hearing, further adjudge the offending party or counsel
guilty of contempt.
-
In their answer, the defendants admit the plaintiff's

averments excepts as to the correctness of the amounts
due, the correctness of which they were still checking, and
for that reason lacking sufficient knowledge or
information to form a belief as to the truth and veracity
of the amounts due, they deny the amounts claimed by
the plaintiff to be due them. Hence, plaintiff is entitled to
summary judgment. (PNB vs PHIL LEATHER CO)
RULE 36
JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
Judgments- disposition of rights and obligations of the parties base
don the merits of the case
Final order disposition not based on a merits but on technical. For
i.e action against reconveyance, motion to dismiss for lack of
jurisdiction final order; order without a prejudice. Bevause GR:
granting motion to dismiss is w/o prejudice on filig of the same case.
XPN: RE
Sec 3 Rule 27, Where the court dismiss a case for failure to
prosecute, comply w/ order of court, failure to present evidence on
scheduled date: a dismissal w/o qualification is with prejudiced.
what are thesubstantial reqts for a valid judgment?
1. J over the subj matter
2. J over the person of the D
3. if action in rem J over the res, How was it acquired?
Publication;
4. J over the issues- judgment shall decide only issues raised
in the pleadings as defined in the pldgs and pre-trial
order; raised and heard on the pleadings;
5. duly constituted court- consti law- for a court to exercise
J, it must be a validly constituted court and not a
kangaroo court ( established by NPA).
6. Judgment was rendered after lawful hearing due
process is observed
what is form and substance?
form outside appearance of the substance
form of a valid judgment:
1. in writing
2. personally and directly prepared by the judge
3. state clearly and distinctively the facts and law it was
based
4. signed by the judge and
5. filed with clerk of court
JUDGMENT
found
in
the
dispositive part of
deision; determines
the
right
and
obligation of the
parties
(WHEREFORE..)
in cs of conflict
JUDGMENT
WILL
PREVAIL
resolution of the
court embodied in
the
dispositive
portion
is
the
determination
of
the facts and law
it is the dispositive
portion that settles
the controversy
OPINION
findingsin
the
conclusion of the court
aka ratio decidendi.
consti- court indicate
the FACTS AND LAW fr
w/c it is based
JUDGMENT SIN PERUICIO one which contains only dipsoitove

portion and reserves the findings theroen VOID
JUDGMENT NUN PRU TUNCT judgment now for then; function to
record some act w/c are not carry into record
JUDGMENT UPON COMPROMISE- judgment rendered upon the
consent of the parties; When parties enter to compromise
agreement, court will determine if its contrary to law, public morals
etc. un lang. It is not appelabale, immediately executor because it is
the product of mutual agreement of the parties. Cnanot be annulled
unless obtained by fraud,error and mistake; it also constitutes as res
juddciata. Is the court required to make findings of fact and
conclusion of law? NOT REQUIRED. Because in contemplation of
law, the court demed to adopt the facts and law mde by the parties,
and the their consent made it encesay to make prleimianry matters
uncovered. For i.e Def- I will pay you may utang in installments.

12
Doe prnounmcent in oen court cosntitue judgment? NO. It must be

written personnall by judge, signed and delivered by clerk of court.
A classic case by Escolin: Re accused, counsel for plaintiff failed to
appear 3x. then 11:30 appeared contending there was vehicular
accident. Was there valid final judgment of order? NO. Clerk of court
not yet signed and delivered.
creditors it must be in the same proceedings w/ the

probate court
CLASSIFICATION OF EXECUTION
accdg to nature
1.
2.
compulsory
discretionary
mode of enforcement
INTERLOCUTORY ORDER- not yet final; theres still somethingto be
done.
Section 1. Rendition of judgments and final orders. A judgment or
final order determining the merits of the case shall be in writing
personally and directly prepared by the judge, stating clearly and
distinctly the facts and the law on which it is based, signed by him,
and filed with the clerk of the court.
Sec. 2. Entry of judgments and final orders. If no appeal or motion for
new trial or reconsideration is filed within the time provided in
these Rules, the judgment or final order shall forthwith be entered
by the clerk in the book of entries of judgments. The date of finality
of the judgment or final order shall be deemed to be the date of its
entry. The record shall contain the dispositive part of the judgment
or final order and shall be signed by the clerk, with a certificate that
such judgment or final order has become final and executory.
effects of finality of judgment:
1. Right to have it executedprevailing party is now entitled to have an execution of
issues as a matter of right
writ of execution becomes a ministerial duty and
compellable by mandamus except when somebody diespresent it w/ the probate court
2. court that rendered it loses J over the cs except clerical
can no longer correct on substance even the judgment is
erroneous
can correct only clerical errors, inadvertence
except:
a. judgment on support bec it is not based on the ability
of the obligor but the needs of the obligee
3. res judicata rule 29;
XPN RE FINALITY OF JUDGMENT :
1. judgment for support can be modified at any time,
obligation of support depends not only on the resources
of obligor but also the change of demands
2. jusgment is unjust (BUSTOS vs CA 450 S )
GR: In single courts like the regional trial courts and the
municipal trial courts, a decision may no longer be
promulgated after the ponente has vataed his office. This
rule applies on collegiate courts like the SC.
(CONSOLIDATED BANK vs CA)
1.
2.
GR: execution can only be enforced upon a party and not to one
who did not have his day in court
PAJARITO vs CENERIS- EMPLOYER'S LIABILITY MAY BE ENFORCED IN
THE SAME PROCEEDINGS. The validity of the claim of an employer
that he is no longer the owner and operator of the ill-fated bus, as he
had sold it to the father of the accused, is a matter that could be
litigated and resolved in the same criminal case. In support of the
employer's opposition to the motion for the purpose of
enforcement of his subsidiary liability, the employer may adduce all
the evidence necessary for that purpose. Indeed, the enforcement of
the employer's subsidiary liability may be litigated within the same
proceeding because the execution of the judgment is a logical and
integral part of the case itself. This would facilitate the application of
justice to the rival claims of the contending parties.
Section 1. Execution upon judgments or final orders. Execution shall
issue as a matter of right, on motion, upon a judgment or order that
disposes of the action or proceeding upon the expiration of the
period to appeal therefrom if no appeal has been duly perfected.
-
1.
2.
-
it is simply the enforcement of judgment . While,

Jurisdiction refers to the power of the court to hear and
resolve a controversy and carry its judgment into effect.
XPN:if somebody dies and award is in a form of moneyspecial consideration to liquidate the debts and pay the
final
executory - upon expiration of period of appeal
only final and executory judgment may be the subject of

execution
if only on appeal, it is only final but not executor
If the appeal has been duly perfected and finally resolved, the
execution may forthwith be applied for in the court of origin, on
motion of the judgment obligee, submitting therewith certified true
copies of the judgment or judgments or final order or orders sought
to be enforced and of the entry thereof, with notice to the adverse
party.
-
where? court of origin and not appellate court Escolin:

this is a new provision.
BEFORE: you appeal the matter to CA, while the records

are still w/ appellate court, cannot be enforced until
records are w/ the court of origin ; Problem is matagal
and entry ng judgment, lalo na if umabot na sa SC
to avoid that, when there is already an entry of judgment

(already final and executory will be put in the entry of
judgment, the entry shall be the date when it became
final and exe although entered on a later date
NOW: final and executory- entry of judgment final the

notice of execution even records not yet with the
court of origin
May the RTC in an appeal of a decision originating in the

TC be subject of execution? Generally, no because it
should be the court of origin, but there are exceptions
EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
Q: when shall execution be issued as a matter of right? A:

upon the expiration of the period to appeal therefrom if
no appeal has been duly perfected.
REQS:
RULE 39`
Execution- remedy provided by law to enforce judgment
upon motion
independent action

13
The appellate court may, on motion in the same case, when the
interest of justice so requires, direct the court of origin to issue the
writ of execution.
Sec. 2. Discretionary execution.
(a)
Execution of a judgment or final order pending

appeal. On motion of the prevailing party will
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, 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. ( residual J)
reqts pending appeal
1. On motion of the prevailing party
2. with notice to the adverse party filed in the
trial court while it has :
a. jurisdiction over the case
b. is in possession of either the original
record or the record on appeal
3. based on good reasons and noted on the
special order of the court
court may, in its discretion, order execution of a
judgment or final order even before the expiration of the
period to appeal.
Residual powers of the court
Note: Under Sec 9, Rule 41 Re Perfection of appeal; effect thereof. A

partys appeal by notice of appeal is deemed perfected as to him (
ALONE) upon the filing of the notice of appeal in due time. ( WITHIN
THE PD TO PERFECT AN APPEAL)
A partys appeal by record on appeal is deemed perfected as to him
( ONLY) with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.
-
CUT OFF- NOT THE FILING ON NOTICE, NEITHER FILING

OF RECORD OF APPEAL BUT APPROVAL OF RECORD ON
APPEAL FILED IN dUE TIME
In appeals by notice of appeal, the court loses jurisdiction over the

case upon the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only over
the subject matter thereof upon the approval of the records on
appeal filed in due time and the expiration of the time to appeal of
the other parties.
In either case, prior to the transmittal of the original record or the
record on appeal, the court may issue orders for the protection and
preservation of the rights of the parties which do not involve any
matter litigated by the appeal, approve compromises, permit appeals
of indigent litigants, order execution pending appeal in accordance
with section 2 of Rule 39, and allow withdrawal of the appeal.
-
The filing of good reason is important.

what is the effect of order pending appeal w/o reason in
justifying it? INEFFECTUAL if it does not have a good
reason in justifying it.
Sec. 3. Stay of discretionary execution. Discretionary execution issued

under the preceding section may be stayed upon approval by the
proper court of a sufficient supersede as bond filed by the party
against whom it is directed, conditioned upon the performance of
the judgment or order allowed to be executed in case it shall be
finally sustained in whole or in part ( ON APPEAL). The bond thus
given may be proceeded against on motion with notice to the
surety.
-
The bonding co will be liable- supersedeas bond- you are

superseding the grant of execution pending appeal
-
(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.
even w/ bond may be superseded- if there are

circumstances outweighing the bond- eg supportmamatay si bata
Sec. 4. Judgments not stayed by appeal. Judgments in actions for

injunction, receivership, accounting and support, and such other
judgments as are now or may hereafter be declared to be
immediately executory, shall be enforceable after their rendition
and shall not be stayed by an appeal taken therefrom, unless
otherwise ordered by the trial court. On appeal therefrom, the
appellate court in its discretion may make an order suspending,
modifying, restoring or granting the injunction, receivership,
accounting, or award of support.
The stay of execution shall be upon such terms as to bond or
otherwise as may be considered proper for the security or
protection of the rights of the adverse party.
gen. rule- matter of right- only judgment which are final and
executory bec res judicata sets in
exception: Sec 4
1.
injunction,
neighbor never bothered to erect a CR, made poopoo

and wee wee sa garden then naaamoy mo. exercise your
rights in such a way that you will not violate the rights of
others
injunction court- stop making poo poo- shld stop right

away
pollution shld stop right away

2.
receivership,
done when there is a controversy bet persons and w/

danger that if possession will remain to the other, court
shld appoint a receiver or else baka maubos na ng isa
3.
accounting
partition- P and D 50-50
P entitled to the proceeds fr the time D deprived the P
mag-accouting ka na
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.
may exe pending appeal be granted by court

may an order of exe pending appeal may be stayed? yes
Sec3
4.
and support, and
5.
such other judgments as are now or may hereafter

be declared to be immediately executory
a. ejectment
summary rules
gen rule fr inferior court to RTC- judgment is stayed but
ones judgment is rendered in RTC in a cs orig in MTC
covered by summary rules, the decision of MTC is
immediately executory w/o prejudice to petition for
review in CA
b. expropriation

14
determine :
1. right/ authority to expropriate must be for public
purpose
upon filing of expropriation cs, P can already ask for
possession bec it is immediately executory
ones determined
2. just compensation
- shall be enforceable after their rendition and shall not
be stayed by an appeal taken therefrom, unless otherwise
ordered by the trial court; the trial court itself stop it
On appeal therefrom, the appellate court in its discretion may make

an order suspending, modifying, restoring or granting the injunction,
receivership, accounting, or award of support.
-
appellate court can also stop it
even immediately executory the trial court and appellate court can
stop execution
Sec. 5. Effect of reversal of executed judgment. Where the executed
judgment is reversed totally or partially, or annulled, on appeal or
otherwise, the trial court may, on motion, issue such orders of
restitution or reparation of damages as equity and justice may
warrant under the circumstances.
Q: WON procedural rules, more particularly the duty of lower courts

to enforce a final decision of appellate courts in child custody cases,
should prevail over and above the desire and preference of the child
Sec 15 NOTICE OF SALE

Kinds of Notices which will depend on nature of property.
Rules muat be observed strictly.
Sec 16- THIRD PARTY CLAIM
Definition: a claim by third person claiming title or
possession of the property subject in the judgment or
execution; that it is not the property of judgment obligor;
Procedure: 3rd party claimant shall make an affidavit
showng: his title or right of possession of the property
stting the gorunds serves to officer (sheriff) making
the levy nd a copy thereof to judgment obligee
Q: Supposed the shriff despite service of affidavit of 3 rd
party refused to give property to 3 rd property despite the
bond? Sheriff is liable to the damage. Once 3 rd party
unless, judgment obligee post a bond to protect him In
short, the bond will answer to the damage of the
property.
Q: Who may file a 3rd party claim? Any person other than
the judgment obligor may file with the sheriff making the
levy
WHEN: at any time, so long as sheriff has possession of
the property levid upon or before the property is sold at
execution
REMEDY of 3rdp claimant in case 3p complaint denied: (1)
GO againt the bond w/in 120 days from the date of filing
of the bond (2) a searate indepednet action filed by 3p
claimant against the sheriff and judgment oblige
(defendant in separate action)
Judgment oblige may seek damages to 3p claimant for
frivolous or spurious 3p claim.
If ins eparate action, the court sisues injunction against
sheriff, is it interference to other court? WON court may
enjoin the processes of a court of co-equal court? Is it
interference? NO. ARABAY vs SALVADOR; the injunction
would not constitue inetreference. As a 3p claimant,

PAscual has the right to vindicate his claim to th
eproprties by mans of separate action. Therefore, that 2 nd
court ha sauthority to issue injunction. When sheriff levies
property, it shall only levy belonging to judgment obligor,
if he is levying that property w/c is owned by 3p. Then
that is interference. The sheriff exceeded his authority.
ESCOVILLA vs C/: The purchaser is bound by the
Butuan
Bayer vs agana: The moment 3p claim is filed, then sheriff
is not bound, since it is a question to be determine dby
proper court. The right of 3p should be determine ina
separate action. Inetrvention is not allowed to prevent
confusion w/c 3p has nothing t o do. (What happen in this
case, isnetad of filing 3p , filed inetvention. Rule:
intervention must be filed befor judgment is renered. Here
na render na judgment hence intervention cannot be
permitted)
SY vs JABCON : After judgment is rendered of ejection suit.
Did the judge properly stop the execution of its judgment?
The courts act of suspending is justified under Sta.
Ana(there may eb cases where ctual possessor my claim
privy to ther parties/ its bo nide possession may be
disputed, the proper procedure is/ anyway..) In ejectment
case, it may be issued against defendant and their privies
(or those who are privy to them) For i.e If X is defendant
then hes being ejected to the property. May son, wife,
kasambahay that Oh we are not parties in the case, you
cannot eject us! :D These creatures derived their right to
the party.
Q:WHAT IS THE PROPER PROCEDURE IN ____ : TO order
hearig on the atetr of such possession and to dney or
acceded pn the writ of possession, in the abence of such
hearing, the actual posesison of the land shall be repeted
tehrien. His ejectment would ocnstutute undue process of
law.
Q: CAN RTC prevent a labor court (a case where SC is flipflopping)
Sec 17: PENALTY: JUST READ

SEC 18: The judgment obligor may prevent the sale by 1)paying
amount of execution and 2)costs
Sec 19: HOW PROPERTY MAY EB SOLD IN EXECUTION?
RULES:
1.
All sales must be made public auction to highest
bidder.Hindi pwede privvat sale. Always public auction.
Para to get the highest price
2.
After. No more can be sold
3.
When portion
4. When sale is of real property (May the jdugent obligor if
present in the case direct the property to )
WHO MAY NOT PARTICIPATE THE SALE
SEC 20 REFUSLA OF PURCHASER TO PAY:
The officer may re-sale again to proper bidder or may
order the obligor to pay
SEC 21: WHEN JUGDMENT OBLIGEE MAY PARICIPATE IN THE
EXECUTION SALE ?
(1) If he participate/ Does he have to pay Depends. If he bids
to the extent of judgment, no need to pay. BUT If he bids in excess of his judgment
When theres 3p claim
(magbayad ka)
SEC 23 RE DELIVERY

15
Who bears the loss? Res perit domino. It depends if

meron na delivery.(capable of manual elievr) It is the
actual delivery that conveys the title. Hence if masira or
masunog ay sa kanya yan.
(not capable)It is delivery of the ertificate of sale that
cosntitues transfer of rightspon delivery,
SEC 25 CONVEYANCE OF RP
Wy? Because of period of redemption. If RP is subject of
execution sale. It is always subject to right of redemption
unlike personal proeptties, is already conveyed t
opurchaser afer he pays the purchase ric
SEC 33 REDEMPTION
After expirtion of 1 year period, that sheriff will issues the
final deed of sale. Therefore, during the auction sale,
theres only sale, at that point, title is not yet pass to
highest bidder. Title and possession is suspended. What
took place is only auction sale. What conveys title is the
FINAL
nature: it I not predicate non ot proprietary right, it is a
statutory privilege who may be exercised by persons
enumerated by law.
WHO MAY REDEEM (SEC 27):
i.
Judgment obligor or his successor in interest
for i.e one who succeeds by operation of law,
gratuitously and by onerous title (one to whom
..basta pwede mabenta redemption right; son
of judgment obligor)
ii.
Creditor having lien (Suche redeeming creditor
= redemptioner)- REDEMPTIONER: hes a
creditor having a lien by attachment, judgment
or mortgage on properties sought to be
redeemed SUBSEQUENT to that which
property is sold.
-
MAY A SURETY AGAINST WHOM JUDGMENT IS RENDERED

BE MAY HE EXECISE REDEMPTION A SSUCCESSOR
INTEREST OF JUDGMENT OBLIGOR (PRINCIPAL) A: NO. By
paying the surety, he is subrogated of the right of
judgment oblige and consequently cannot be succsor in
interest of judgment obligor.
MAY A SURETY OBLIGED TO PAY AS PART OF JUDGMENT
___, MAY HE EXERCISE REDEMPTIONER HAVING A LIEN ON
THE PROPERTY OF JUDGMENT OBLIGOR? Neither.
Because the lien which he acquires and to which he is
sunrogated is the same judgment that the judgment
oblige held. To be redmeptioner, the lien must be other
than and subsequent to the judgment udnerwhich the
property was sold.
MAY THE RIGHT OF REDPEMTION PERTAINING J ONLIGOR
BE LEVY BY J OBLIGEE? NO. The right of redeption
pertaining to j obligor cannot be levied upon by j oblige
and be sold to balance of judgment of debt; that
tantamounts to defeating the purpose of the law in
granting right of redemption.
MAY RIGHT OF REDMEPTION BEING A PROPERY RIGHT BE
LEVIED UPON AND SOLD IN SATISFACTIONR ENDERE DIN
ANOTHER CASE? Yes. Sicne it is a property right, can be
disposed, conveyed and sell it.
PERIODS OF REDEPMTION: Sec 28 redemptioner
exercising 1st redemption: w/in 1 year
Redemptioner exercising sub- or 2nd redemption: must
redeem w/in 60 days. Even if it is beyond 1 year period.
SEC 29 EFFECT OF REDEMPTION

REQUISITES FO THE EXRCCISE PF JUDGMENT OBLIGOR OF HIS RIGHT
TO REDEMPTION? Nothing but the payment of purchas eprcie. But
under Sec 30 states that before to be allowed to redeem, must
prove he has right to redeem. Reason: status of being a reemptioner
is afact w/c do not appear in the records of the case.
RIGHTS OF OBLIGOR during priod of redemption
i.
May remain in possession of the property, can collect
rents and profit threform;
ii.
Cannot be ejcted therefrom, may use in the course of
usbandry
On application of j oblige, court may issue injucntio
Period of redemption cannot be extend
For a valid execution sale, There should be a valid levy.

Sec 33 par 2.
SY vs JARABON: senas having acquired the rights of

mortaggee bank can ____
DERIVED TITLE
SENAS vs SANTOS ABROGAR vs IYAC The sale may only be postponed under
Sec 22 by written consent of j oblige nad j obligor. The
officer may adjourn the sale from day to day if it becomes
necessary to dos (if w/o agreement) GR: cannot adjourn
unless w/ written consent of parties XPN: adjournment of
sale from day to day. Since there was no valid
postponement of sale, the sale is null and void.
-
GOROSPE vs SNATOS: Sec 29 is also applicable to property

sold by virtue of EJF, Gorpsoe as a successor interest of
judgment debtor has apefect right to redeem property
and she not require to pay greater amount as that
impose to judgment obligor.Sanos, is not considered as
purchaser Gorpose, being the purchaser, Santos lien is
unior to that of Gorospe.
COMETA vs IAC : issuance of writ of possession is
ministerial. Redemptio wouldve estopped him to the
assialent of validy of foreclosure. A purchaser in pubic
acutiron acquires the right at the time of levy. For valid
foreclosure sale, must be proceeded w/ a valid levy.
XPN: unless it is being claimed by 3p adverse to that of
judgment obligor
ROXAS vs BUAN: What kind of possessor? The writ of
possession shall issue in favor of buyer, last redemptioner
by the same officer unless the party is holding the
property adversely. ROxas is successor in interest of
Valentin. Consequently, Roxas occupancy thereof cannot
MALONZO vs MARIANO:
MRIANO vs CA: The husband is not stranger to the wife in
this case.
SEC 34 ENUMERATES THE CASES WHERE PURCHASER AT AUTION

SALE MY RECOVE THE PRICE OF TH PROPETY PURCHASED BY HIM
1. When purchaser fails to recover possession
2. After having acquired possession is evicted therefrom: (4
instances)

16
HOW PURCHASE PRICE MAY BE RECOVERED Remedies:e c

1. Purchaser ma yfile motion in the same ction/separate
action to recover from j oblige for the rpice paid w
interest or so mucht herof as not dleievred to j obligor;
2. He may on motion in the same /separate REVIVE D IN HIS
NAME for the wole price w/ interest
PASPAS NA
REMEDIES IN AID OF EXECUTION
Sec 36 to aid in execution; correlate w/ Sec 42 (benta mo right nya
if inamin ; READ)
Sec 37 to be read w/ Sec 39 and 43 (the court cannot force the
obligor who denies, cannot be forced tp deliver)
Sec 43 *denies debt or claims title adverse to obligor; the j obligor
cannot order to deliver the thing, ( basahin bashain read)
Sec 44 satisfaction of judgment : may be done by the judgment
oblige by menas of wirt of execution or judgment obligor by means
of voluntary payment; EFFECT of compeling staisfatcion of judgment:
admits the correctness sof decision or judgment and hence
ESTOPPED from appealing
WHEN
1. Return of writ of execution (that execution was satisfied)
2. Filing of an admission to the satisfaction of the judgment
3. Endorsement of such an admission by j oblige on the fact
of rcord of judgment
Satisfaction of the
judgment
Compliance of the
mandate
(2) must have jurisdiition over the s matter and parties

(3) judgment and order msut be upon the merits one
thatfinallys ttles the sisues raised in the peladings:
complaint and answer, reply. XPN: those orders of
dismissal w/c by expres proviosns of rules have effect of
adjudication of the merits. For i.e, Rule 17 sec 3
(4) there must be bet two cases identy of parties, sbj
matter nad causes of ation theres identity of the
parties where parties in the 1st action is the same in 2nd
action;subseqnt to the commencemtn. Identity of subj
matter if in the 2nd case the same thing is involvd or
included in the firt case. Idnetity of cuses of action
when 2 actions are based on the same delcit, act or
mosison even if the remedies be different
Note: Kung di pa final, file ka ccase for splitting the same
acause of action; If final na ten file ka na res judicata na
yun determine the nature.
FQ: may a void judgment cn be invoked as res jduicta?
No. it has no existncein alw. Howver if merely voidable,
may invoke as res judicata. IT is binding to parties unless
until annuleed. Th hole process then is to ask for
annulemtn of judgment.
FRUD? Intrinsic.
NO SUBJ ATTER? Remedy is sec 47 , annulment of
judgment
RES JUDICATA
-
LITIS PENDENTIA
-
Note:
SEC 47 EFFECT OF JUDGMENT
Judgment of court of PH having jurisdicition
EFFCT: RES JUDICTA TO LAHAT
(1) IN REM/QUASI IN REM conclusive upon title to the
thing ; for i.e in land registration cases, once the decree is
final and executory = conclusive upon title to the thing;
when a will is admitted to probate = conclusive as to its
due execution and validyt; admin of esttae of deceased;
HOWEVER (proate of ill and granting of letters= prima
faie evidence only)
(2) IN PERSONAM bar by priror judgment
(3) IN PERSONAM conlcusive of judgmenrr; EFFECT: RES
JUDICATA or ESTOPPEL BY JUDGMENT applies to both
matters of claim and defenses.
It rests o npricnipe that parties cannt be permitted to
litigate issue ore than once, once the right has been
determined or opportunity for trial have given, judgment
shall be consluive to partis and those privy with them.
For i.e uner sec 2 of rule 9 re if compulsory cc if not raised
are deemed aived. Why? Because it arise in the same
transaction. If you did not, you waived. Note:
In land registration of case, claim of applicant re pacto de
retro inheritance daw; barred
Where interest is transferred pendent lite can ask for an
amendment; evn w/o amending the case continue
against the original party. Would the succos in interst be
boud by the judgment? YES. BPI CASE. Sec 19 of Rule 3,
yes they are succeosrs in interest subsequent
If title prior to? NO. not bound
REQS:
(1) must eb final judgment the judgment here is FINAL
nd EXECUTORY (lumagps na appeal or appeal has been
finally resolved) as distinguished to mere final and
appealable;
DISTINCTION
letter b = bar by prior judgment; relate sto requiste. For i.e
judgment rendered upon PN is conlsuve upon the validt of
instrument and the amount although theres allegation of forgery,
want of consideration. IF such dfensers were not raised in 1 st acion,
the subsequent of theyre existence is of no moment. The judgment
is cconsluive and cannot eb raied in subsequent action.
Letter c= conclusiveness of judgment; extent of estoppel; theres no
identity of caus of actin bet two acses , all other reqs re ebing
present. For i.e the PN is paid on installments, each installment
would cousnittue 1st cause of action, when u sue in the 2 nd, the
validty of the sntrument cannot be ltiiated kasi na resolve na due
execution, tapos na sya s first installment. Can only determine yung
issue re want of consideration. NAbayaran ba talaga yan?
Q: does doctrine of re sjudicata applies to final orders? YES. BE
careful to Rule 16 esp Sec 5
RULE 40
APPEAL
APELLATE JURISDICTION
Jurisdiction power of court to hear & determine case; must be
specifically conferred by law; cannot be subject of agreement or
waiver of the parties.
(*People vs Mateo / read)
Prior to Mateo ruling, where penalty is RP , appeal is direct to SC.
SC has appellate jurisdiction:
i.
Cases involving constitutionality or validty of
any treat, international or executive
agreement etc.
ii.
Involving legality of any tax impost or
assessment etc.
iii.
Jurisdiction of any court is in issue

17
iv.
All criminal cases w/c penalty imposed is

Reclusion Perpetua or higher
All cases in which only an error or question of
law is involved
v.
CA has exclusive appellate jurisdiction (XPNS: i. under bp

129, those are within the appellate jurisdiction of SCas
defined by Constitution ii. Labor cases iii. Those within
the appellate jurisdiction of other courts, i.e
Sandiganbayan, Tax Appeals, so kung sa Sandiganbayan
yan, wala na sa CA yan)
RTC: (over decisions rendered by MTC ; Sec 22 of BP 129)
Other courts exercising appellate jurisidicton:
1. Sandiganbayan (appellate j over cases that are
within the Sandiganbayan, anti-graft, forfeiture
bribery and indirect bribery, other offenses
committed by public officers committed in public
office and cases covered by EO ______*refers to ill
gotten wealth of MArcos; original cases to issue quo
warranto; RA 10660 provided that RTC has exclusive
jurisdiction that does not allege damge to
government of bribery- add element of damage or
allegation of bribery)
2. Court of Tax Appeals
When we speak of original hear by first instance while
appellate refers to _______, it is a continuation of
proceedings. Hence, when RTC exercised by appellate
jurisdiction of MTC, it is bound by the jurisdictional limit
of MTC
intervenor. An order which decides an issue or

issues in a complaint is final and appealable,
although the other issue or issues have not been
resolved, if the latter issues are distinct and separate
from the others. (DAY vs RTC of ZAMBOANGA)
3.
Declared by the rules to be appealable (know doctrine

under Miranda vs CA there are cases w/c are multi-tiered
in character.
For i.e in expropriation case, issues to be determined are:
i. authority ii. Is it for public purpose and what about just
compensation? When court issued order for
expropriation (order), is it appealable? YES. No need to
wait for the resolution of 2nd issue.
In partition, issue 1- are parties co-owners? When denied.
Once court declared theres co-ownership, no need to
wait the issue of accounting, that is subj to another
appeal.
RULE 36 gives us 2 situations when can there be multiple

appeals:
when there several judgments:
When theres separate judgements: when more than one
claim is presented in an action, what is suspended here is
__ and not the finality
RULE 109
RULE 38
SUBJECT ON APPEAL AS ENUMERATED UNDER SEC.1
RULE 41
APPEAL FROM REGIONAL TRIAL COURTS
Subject on appeal:
1. Judgment disposition of case on the basis of merits or
issues presented by the parties in pleadings
2. Final order can be a disposition of case based in issues
present but it may also include a matter that was never
raised but notwithstanding, the case is disposed of under
RULE 17 for i.e plaintiff failed to raise an appeal then
court dismissed it, it is an order. Note on the word final
order.
FINAL
-
One
that
completely
disposes of the
case
(nothing
the court can do
anymore)
INTERLOCUTORY ORDER
Not appealable
If court has
something to be
done, not final.
It does not
terminate nor
finally dispose
of the case, but
leaves
something to be
done by the
court before the
case is finally
decided on the
merits.
To illustrate: P files against D, D filed motion to dismiss on

the ground of lack of jurisdiction. Granted by the court.. Is
it final? A: YES. On the otherhand, if M.D is denied. Is it
appealable? NO. Madami pa proceedings na gagawin. It
does not dispose the case. But if theres something to be
done, it is not final.
Motion to intervene filed by intervenor was denied =

MAY APPEAL; Final judgment with respect to the
(a) An order denying a motion for new trial or

reconsideration;
(b) An order denying a petition for relief or any similar
motion seeking relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of
fraud, mistake or duress, or any other ground vitiating
consent;
(f) An order of execution;
(g) A judgment or final order for or against one or more
of several parties or in separate claims, counterclaims,
cross-claims and third-party complaints, while the main
case is pending, unless the court allows an appeal
therefrom; and
(h) An order dismissing an action without prejudice.
- not all final orders are appealable. When is it
appealable? When final order is w/ prejudiced. Hence, if
final order is w/o prejudiced, it is not appealable. For i.e
P D, D filed M.D on the ground of lack of j, court grants
he motion. IS that final order? YES. Is that appealable?
Disposed on merit means disposed based on the issues
raised by the parties. When one files M.D on ground of
lack of j, it is still disposal on the merits. Nonetheless,
dismissal w/o prejudiced. Under Rule 16, only 3 cases are
w/ prejudiced. Ergo if it is not under f.h. & I = not w/o
prejudiced. If M.D is granted on the ground of lack of j, it
is not appealable. Those dismissed by (under F. (res
judicata) H. (claim/demand paid, waived otherwise
extinguished) & I. (claim undenforceable) of R 16) is
appealable. Moreover, take note of the rule re dismissal
under RULE 17 Sec 1, 2,3 determine those cases disposed
without and with prejudiced.
i. Dismissal upon notice by plaintiff before service of
answer or of a motion for summary judgment (w/o
prejudice);

18
ii. Dismissal upon motion of plaintiff (w/o prejudice)

iii. Dismissal due to fault of plaintiff (w/ prejudice)
-
In those matters where not appealable, what is your

remedy? RULE 65 : CERTIORARI
In all the above instances where the judgment or final

order is not appealable, the aggrieved party may file an
appropriate special civil action under Rule 65. (n)
3 MODES OF APPEAL
1. Ordinary appeal- when appeal is a matter of right; one
where the appeal cannot be refused by the appellate
court
WHEN ALLOWED: From MTC RTC, From RTC CA
(rule 41, but this contemplates that rtc rendered decision
in the exercise of original j. if it exercised in apelllate, it
means the case originated form MTC, then the appeal
shall be by petition for review under Rule 42)
KINDS:
1) notice of appeal
2) record of appeali. in special proceedings
ii. In cases where the law or rules allow multiple appeals
2.
Petition for review cases decided by RTC in its exercised

of appellate jurisdiction; it is discretionary, the court may
dismiss it outright.
3.
Appeal by Certiorari- may be denied by due coruse, under

Rule 45 Sec 6. ONLY WHEN THE ISUES RAISED ARE PURE
QUESTIONS OF LAW!
NOTE!
What court has appellate jurisdiction ( Saan kang court
mag aapeal, MTC ba or RTC ba, saan jurisdiction? )
How to perfect an appeal? (First, ano gagwin mo. Second,
when should you do that? Period! 15 ba or 30)
When is there a question of law? Question of fact? See
Rule 50 Sec 2
Question of law arise when the facts are already admitted then the
court will just draw into conclusion from those set of facts; a
conclusion derived from admitted fact
Theres question of fact when doubt arises as to the truth of alleged
facts. When the court is called upon to examine the evidence in
order to determine what is the truth and what is false.; when the
query necessarily requires the calibration then that is a question of
facts. WHY? Because you have to delve upon the case
(the ff. cases are under RULE 45- Appeal by Certiorari to SC on
matters of pure questions of law vs RULE on matters of pure
questions of fact)
SOUTHERN CASE: The proper mode of appeal from judgments of
the Regional Trial Court on pure questions of law is a petition for
review on certiorari to the Supreme Court in the form and manner
provided for in Rule 45 of the Revised Rules of Court. . . . Private
respondents, in their Appellant's Brief filed with the appellate court,
raised the following issues: (1) Did the trial court err in dismissing
the complaint for improper venue?; (2) Did the trial court err in not
admitting the Amended Complaint?; and (3) Did the trial court
disregard the rule that in filing a motion to dismiss, petitioner was
deemed to have admitted all the allegations in the complaint? The
issue of whether the trial court erred in holding that the venue of an
action was improperly laid is a question of law.
VICTORIAS vs IAC: whethere or ot the dismissal of a complaint is

correct is neither r a question of fact nor of fact and law. It involves
pure questions of law because what is to be resolved is whether,
admitting the facts alleged therein the complaint to be true, the TC
has jurisdiction over it in the light of the laws governing jurisdiction.
Question of law when the doubt or difference

arises as to what the law is on a certain state of
facts.
ROMAN CATHOLIC READ! MALING MALI ANG CASE!
According to court, When private respondent questioned
the conclusion of the TC that there was no meetin gof the
minds between lessor and lessee regarding the sale of the
leased property, private respondent raised a factual issue.
SEBRENO: In a demurrer of evidence, since it hypothetically admits
the truth of evidence, it is a pure question of law. (escolin: yes, tama
SC. But you apply that only under Rule 41 ordinary appeal,( not sure
ditto: when it is appeal of appeal in exercising appellate
jurisdiction?)
Period of appeal under Sc 39 of BP 129
RULE 40
APPEAL FROM MTC RTC
Sec 5: How do you perfect an appeal?
1. By notice of appeal - w/in 15 days file and serve to
kalaban your notice of appeal and pay within the same
period. Contents: name of parties, order appealed from
and material dates (or material data rule)
If an appeal is perfected, does that mean court loses
jurisdiction? NO. why? Ewan
2. By record on appeal - 3
Sec 6:
Sec 8: Situation ehre is tat MTC dismissed the case butsuch

dismissal is done w/o trial on merits on the gorund of lack of
jurisdiciton. The RTC now howver does not agree , it reverses,
__________________
Seec 9: what is consistent? Under Rule 41, if md on lack of
jurisdiction is granted, while iy is final is nevertheless appealable
because it is w/o prejudiced. But if it is dismissed by MTC because
of lack of jurisdiction and w/o trial on the emrits. RTC sgall not
dismiss but assume the juridicition as if it is filed originally.
______________ kulang to
Sec 3:
Can you file a motion for extension to file an MR or motion for
new trial? NEITHER.
Read:
RULE 41
ORDINARY APPEAL
Sec 5:
Sec 6:
An appeal by mere notice entire record are elevated. Ma
immobilize yung lower court kasi i-ellevate lahat ng records. w/in
15 days;
By record on appeal hindi ma elevaet lahat records. So as to
guide the court to rule the appeal base from the record on
appeal. Ang nag susupply ng records are those submitted by the
parties. w/in 30 days;

19
A party cannot ask for Motion for Extension of Time w/in which
to file motion for new trial or reconsideration or perfect an
appeal. XPN: if filing motion for extension prior.
Q: If motion denied,w/in what time a party shall perfect an
appeal? A: within the balance of the period to perfect an appeal;
W/ the advent of Neypes ruling: fresh period rule; A party has new
period. It is counted either from 1) original period appealed form
or 2)another fresh period
Sec 9: Mere fact one party has perfected an appeal does not mean
to say that the court loses its jurisdiction.
PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE

COURT OF APPEALS
-
Significance of losing jurisdiction- Court cannot anymore change

substantially its judgment; When does court loses jurisdiction? Sec 8
&9 Thus if one party perfected its appeal, it does not deprive the
other party to lose his power to file motion for new trial
PNB vs SPS SALVACION
F: RTC in a civil case for rescission of contract of lease dismissed the
case and granted defendants counterclaim. Discontent plaintiff
filed notice of appeal. However, the defendants were also not
satisfied in the judgment, they also moved for reconsideration
because they are not satisfied w/ the award of damages. Appeal was
perfected. TC affirmed previous ruling. Plaintiff then filed a second
notice of appeal. However, defendants moved to dismiss claiming
that this motion arguing that P only have 1 day left to file second
notice.
I: WoN CA erred in granting respondnets motion to dismiss the
appeal
H: No more necessity to file a second notice of appeal. Its appeal
having been perfected petitioner need not file 2nd notice of appeal
even if TC granted other partys motion for recon to increase
monetary award. In PACIFIC LIFE vs SISON: We hold that petitioner
did not have to file another notice of appeal, having given notice of
its intention to appeal the original decision. TC in so far as the
petition is concern loses its jurisdiction.
RULE: when appeal is perfected court does not lose
jurisdiction over the case but loses j over the party
who appealed. (Parang 50% per Lakas Atenista)
Effect if party perfects an appeal: cannot withdraw,
cannot file MR, because court has no more
jurisdiction upon him
VERSUS, Sec 2 Rule 39 (get lecture from jewel)
Sec 10: vis a vis Sec 12 (Re Duty of the Clerk of Court & Transmittal)
Payment of docket fees is not a req. SANTOS vs CA: The
payment of appellate fee is found in Section 8 of Rule 141. But
the SC observed that the only requirement is Notice of Appeal.
There is no mention of appellate fee. The payment of appellate
fee is not a requisite to the perfection of an appeal although
Rule 141 does not specify when said payment shall be made. It
does not automatically result in the dismissal of the appeal
unless it affects the jurisdiction. The dismissal being
discretionary on the part of the appellate court, such dismissal
should be exercised wisely.
This ruling is still applicable. Although Section 5
prescribes that within the period to take appeal you
must pay the docket fee. If you do not pay it, it may
not cause ipso facto the dismissal of your appeal. But
the clerk of court may refuse to transmit the record
to the RTC until you pay. So docket fee is not a
requirement to perfect an appeal although it is an
obligation also.
RULE 42
judgment of RTC in the exercise of its appellate J

CA- may entertain a pure questions of law in Rule 42- bec
the judgment under review is in RTCs appellate
jurisdiction (From MTC RTC CA)
Hence, applicable: Errors of fact, errors of law, or both
mixed errors of fact or law.
Q: hindi ba kapag error of law dapat sa SC yan? Hindi na
dadaan sa CA? How do you reconcile this with the
Constitution? Actually, when the law says decisions of the
RTC appealable directly to the SC, it was decided pursuant
to its original jurisdiction. But if it is decided pursuant to
its appellate jurisdiction, the appeal should be to the CA
even on pure questions of law without prejudice of going
to the SC later on. (LAKAS ATENISTA) *sssh!
PERFECTION OF APPEAL (EFFECT, Sec 8)

when perfected? appellate J of RTC
when does the court loses J, such that the court can no longer
exercise its rights w/ regards to its residual J?
The Regional Trial Court loses jurisdiction over the case upon
the perfection of the appeals filed in due time and the
(a) Upon the timely filing of a petition for review and the
payment of the corresponding docket and other lawful fees,
the appeal is deemed perfected as to the petitioner.
The Regional Trial Court loses jurisdiction over the case upon
the perfection of the appeals filed in due time and the
-
can exercise residual J with regards to matters not

involving merits of the cs
when does the TC loses J, also with residual J? when the

CA gives due course
However, before the Court of Appeals gives due course to the

petition, the Regional Trial Court may issue orders for the
protection and preservation of the rights of the parties which do
not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with section 2 of Rule
39, and allow withdrawal of the appeal.
(b) Except in civil cases decided under the Rule on Summary
Procedure (ejectment), the appeal shall stay the judgment or final
order unless the Court of Appeals, the law, or these Rules shall
provide otherwise.
Sec. 9. Submission for decision. If the petition is given due course,
the Court of Appeals may set the case for oral argument or require
the parties to submit memoranda within a period of fifteen (15)
days from notice. The case shall be deemed submitted for decision
upon the filing of the last pleading or memorandum required by
these
Rules
or
by
the
court
itself.
RULE 44
ORDINARY APPEALED CASES
Sec 1: same pa rin title from the case below mag add lang nung
respective title if are they appellant or apellee.
Original: Juan DC vs Jon Snow

20
Appeal: JUAN DC(plaintiff-apellee) vs Jon Snow (defendant-apellant)

Failure to prosecute an appeal for an unreasonable
length of time, court may motu proprio dismiss case. It is
w/ prejudiced.
Sec 6: Most of the time, records were lost.
Sec 7 Upon acceptance, file apellants brief w/in 45 days
If you ask for an extension, court will grant u
another 45 days
Sec 13: Contents apellants brief

Re ssignment of error First assignment of Error and follows
RULE 48
PRELIMINARY CONFERENCE
This is now being practiced too in CA;
See Codal
RULE 49
ORAL ARGUMENTS
Very seldom because you argue more on paper
See Codal
1.
RULE 50
DISMISSAL OF AN APPEAL
Petition for Review before CA
a) Failure to show on it face thats why its important to
show material dates/facts;
b) Failure to file w/in period required
c) Failure to pay docket and lawful fees
d) Unauthorized omission wag mo ibahin
e) Failure to serve apellants brief 2; But if many parties,
tig-isa na lang.
f)
Absence of specific assignment of errors The
fundamental distinction of appeal in Civil Case appeal
by writ of error, strict, . Note under Sec 15 of Rule 44.
IThe appellate court may only rule on matter raied by
appellant.and Crim Case appeal is open for reviw, e vn
mtters not take /nnot raised as an error.
g) To take eneessary sreps
h) Hfailure to appear PC
i)
Not appealable
Sec 2
If notice of appeal instead of petition for review, it is subject to
dismissal.
Compare to Appeal before SC: GEN RULE: appeal to SC is
on a pure questions o law. The mode of appeal is
Cetitotrai unde Rule 45. GEN RULE: Ca can entertain only
those assigned errors. (Correlate with Rule 51 Sec 8) XPN:
which affect the jurisidcition of the subj matte ror the
validity, if not raised as assigned erro but it affect the
jurisicdition of the court and the validty. CA can consider
it.
IF you appeal by notice of appeal before SC subject to dismissal.
XPN: in criminal cases where penalty imposed is RP and higher
But if you are appealing to SC re submitting uses of fact may be
referred to CA.
Situation: What if CA dismissed (question of law daw) SC q of law
and fact : sa CA yun
Sec 3 Rule 51:
RULE 51
JUDGMENT
-
Important because eof the amndatory law by Consti re

strict period of disposition of cases
RTC 45 CA- SCRecokoning oerifod:
2.
In Sandiganbayan, when shall it decide. In TC 90 days in

CA- 1 year;
RULE 122 Sec 9 the party shall submit memoranda
BY whom rendered:
Sec 9: Recall case of COsnolidatted Bank vs Ca ( the draft
of decision of Justice Gopieng co was circulated. After the
final draft but before it was delivered to Ca, Gopengco
died then later on it was delivered. Consolidate Bank
questioned. SC: When a judge vacates his office then his
vote is deemed withdrawn Because the operative act hat
stars the [roces the promulgation is upon deliveyr to
Clerk of Court.
Sec 11: GEN: as a matter f right, amy be executed by cour
of origin unless its xecution pending appeal. In orginal
cases, ca may execute pending appeal. But if_ . Under
Rule 39, Sec 1
Motion for execution pending appeal was file swhile it
has still jurisdiction; upon granting it is necessary that it
has jurisiciton so longa s record of appeal is not yet
rasnitted.
When it is transmitted, does it prclude you., ________assuming it is granted, Ca will order lower court
to issue proper________.
RULE 42
HOW: FILE PAY FEES SERVE (furnishing the RTC rendered
decision, adverse party)
GEN RULE IN APPEALS: filing motion for extension and new trial
However, allows extension under 42,43,45: i. upon proper motion
11. Payment iii. Before expiration of original 15-day period
FABIAN vs DISERTO: ISSUE RE OMBUDSMAN ACT in allowing direct
appeal to SC HELD: NO! The proper procedure is petition for review
(CA) under RULE 43
1. Was that a proper legislation? UNCONSTITUTIONAL. It
added the jurisdiction. Must first secure the consent of
SC.
2. Since it is unconstitutional, appeals go to Rule 43
3. In decision of Ombudsman in preliminary investigation
subject to appeal? NO. It is not a court.
4. H: . Under the present Rule 45, appeals may be brought
through a petition for review on certiorari but only from
judgments and final orders of the courts enumerated in
Section 1 thereof. Appeals from judgments and final
orders of quasi-judicial agencies are now required to be
brought to the Court of Appeals on a verified petition for
review, under the requirements and conditions in Rule 43
which was precisely formulated and adopted to provide
for a uniform rule of appellate procedure for quasijudicial agencies.
JUDICIAL POWER
1. Classic kind- powerof tribunal to hear contorveys
involving rights and demandable
2. Constotutin tht courts in part of its review when part or
insturmentlity of govt commits grave abuse.
Not allowed in Labor cases. Reason: Law doesnot

allow appeal on labor cases.
Appeal in the same as under Rule 42:
Verified petition
Must be accompanied petition fo cetification of nonforum shopping Gen rue, applies only to inititatory
pleading XPN: under 42,43, 44and 45, not initiatory but
appeal. Basta Petiiton under 42-45, verified petition
erve to adverse party w/ necessary proof of sevrcie.
WHAT MAY BE RAISED UNDER PETITION FOR REVIEW RULE 42?

21
i.
Must raised a question of fact (appeal under Rule

41)
Q: Appeal under R 42 riaisng only pure questions of law, allowed?
A: Sec 2 Rule 50 : An appeal under R 41 form RTC to CA riain gonly
qusitons of law shall be dismissed.
Statutory basis: BP 129
The party supplants the records of the case. If
theres a need to compete the records, supplant it
by true certified copy.
EFFECT OF APPEal: it stays execution of judgment
RULE 43
Enumeration under Sec 1 is not exclusive;
Note that decisions of Ombudsmanare classified as quasijudicial body and hence appealable to CA; RATIO GEN
RULE: CA has exclusive appellant jurisdiction over
judgment render by quasi-judicial cases. Hence, decisions
of ombudsman in exercise of its admin function are
appelable to CA; NOTE FABIAN vs DESIERTO; In decisions
of Ombudsmn in crim ca pursuant to its authority to
conduct PI, the review is SC. (why? Because diff rmeedy.
Under quasi judicial functions 43 by appeal. If administ
function cannot kasi sepration of powers
Right to appeal is merely a statutory right. Hence if it is
withdrawn, no right to appeal
;
WHERE:
In 40, 41 you pay docket fees in the court where
judgment is appealed from but under Rule 43 you pay
docket fees in the appellate court;
Under Rule 42, already a judgment rendered acting on apllate. In
Rule 34 it is a judgment rendered in first instance. It may also be in
the second instance or appellate. For i.e, decisions emanating of O.P
it is already in the exercise of its appellate jurisdiction. That it was
decided already in Bureau of Mines. (We apply principle of
exhaustion, if the administrative body is in then exercise of its quasijudicial function). If not in the exercise of quasi-judciial, cannot
appeal before CA. Because of the concept of Separation of Powers.
Remedy: Courts may only interfere under Grave abuse Clause
(Power of Judicial Review)
NEYPES RULING: 15 days period is given again,

SUMAWE vs URBAN BANK - This fresh 15-day period (in
accord with Neypes ruling) within which to file notice of
appeal counted from notice of the denial of the motion
for reconsideration may be applied to petitioners' case
inasmuch as rules of procedure may be given retroactive
effect to actions pending and undetermined at the time
of their passage.
PCI LEASING vs MILAN: fresh period rule appeals from
mtc RTC under Rule 40
When RTC sits a s special agraraian courts, the mode of
appeal is not R 41 but rather under R 42, petition for
review. The determination of just compensatonna lang.
SC hindi mattanggal yun.
Sec 9 Comments
The comments shall point out the inaccuracies and
statements of facts and issues and reasons why petition
shall be denied or dismissed.
GOTANO vs GOTANO:
BANAGA vs MAJADUCON: cannot be appealed, writs of
execution; enumerates the exceptions where a party may
elevate the matter of an improper execution for appeal:
Sec 12 of R 43 correlate to R 42 (w/c it stays the execution of

judgment) But in R 44 , it shall not stay. (Execution under R39 Is a
matter of right if judgment is not pending appeal)
Under Rule 41, effect is GR: it stays execution of
judgment (except: those covered by summary procedure)
Under 43 GR: the appeal shall NOT STAY, consider that
as an exception on execution under Rule 39 as a matter
of right if the judgment is final and executor UNLESS,
the CA shall order otherwise. The CA may issue injunction
to stop court a quo from implementing its judgment.
i.
ii.
RE OMBUDSMAN
In the lapid case (ombudsman vs lapit), SC held it is not immediately
executory.NOW: Decisions of Ombudsman is immediately executory
(Escolin: finally sinusunod na nila yung sa under Sec 12)
(Unrelated lesson: STAT CON: GEN LAW vs SPECIAL LAW, apply
special law provided they emanate from same authortity)
RULE 45
APPEAL BY CERTIORARI to SC
Kindred with 42 and 43, diff only sa # of copies period

and nature itself
Sec 1: re other courts, pwede MTC and
42 & 43 can question of fact, question of law, or mixed
R 41- from RTC orig CA, question of fact or mixed
question of fact & law BUT never pure question of law.
Otherwise, it is dismissible. Because CA has no appellate
jurisdiction. However, form MTC RTC, can you raise a
pure question of law. YES. Can raise fact or mixed.
In appeals, there are only 2 periods: 15 days; 30 days- if y
record of appeal (for the purpose of preparing the
records) Can you file M for extension to perfect an
appeal? Depends. 40, 41- NO; 44,43, YES for 15 dys. But
in SC, 30 days pwede sa extension.
Lower courts are not parties in appeal before SC; You are
only attacking the judgment.
ONLY INSTANCE WHERE U CAN APPEAL BY MERE NOTICE
OF APPEAL BEFORE SC- if penalty imposed is Reclusion
PErpetua or higher. For i.e reclusion temporal is only
imposed by lower court, what is the mode of appeal
there?(notice of appeal daw? Not sure ano sabi ni Escolin,
Vague to)
CASES:
the writ of execution varies the judgment;

there has been a change in the situation of the
parties making execution inequitable or unjust;
iii.
execution is sought to be enforced against
property exempt from execution;
iv.
it appears that the controversy has never been
subject to the judgment of the court;
v.
the terms of the judgment are not clear
enough and there remains room for
interpretation thereof; or
vi.
it appears that the writ of execution has been
improvidently issued, or that it is defective in
substance, or is issued against the wrong party,
or that the judgment debt has been paid or
otherwise satisfied, or the writ was issued
without authority;
In this case, appropriate remedy is an ordinary appeal
instead of a petition for certiorari, contrary to the stance
of private respondent. Raised by petitioner is the factual

22
issue of discrepancy or alterations in the lot data

computations used as basis for the survey. This calls for a
review of the case records.
CABRERA vs LAPID:
Appeal from decisions of voluntary arbitrator R 43; Why?
Decision of qausi-judicial
Where grave abuse of discretion amounting to lack or
excess of jurisdiction taints the findings of the
Ombudsman on the existence of probable cause, the
aggrieved party may file a petition for certiorari under
Rule 65. 19 The remedy from resolutions of the
Ombudsman in preliminary investigations of criminal
cases is a petition for certiorari under Rule 65, not a
petition for review on certiorari under Rule 45.
But in this case, petitioner has taken the position that the
Ombudsman has decided questions of substance contrary
to law and the applicable decisions of the Supreme Court.
That is a ground under a Rule 45 petition. Indeed, from a
reading of the assignment of errors, it is clear that
petitioner does not impute grave abuse of discretion to
the Ombudsman in issuing the assailed Resolution and
Order. Rather, she merely questions his findings and
conclusions. As stated earlier, direct appeal to the
Supreme Court via a petition for review on certiorari is
not sanctioned by any rule of procedure. By availing of a
wrong remedy, the petition should be dismissed outright.
LANTING VS OMBUDSMAN: Fabian vs Desierto not applicable. SC has

the appellate authority in decisions of Ombudsman in criminal cases.
R43 applies only in the exercise of Ombudsmans administrative
function.
BAUTISTA vs CA: resolutions of public prosecutors in the conduct of
__- is not appealable. Prosecutors is not strictly speaking a quasijudicial body. Justice Bellosillo said, although in many cases the
power to conduct P.I has been characterized quasi0judicail nature,
but these statements hold true only in the sense that exercising
powers akin to those of the court A quasi-judicial proceeding
organ of govt other than a court
HOW DO YOU QUETSION A RESO OF OMBUDSMAN
IN CONDUCT OF P.I? Remedy: R 65 (original
jurisdiction; Bautista vs CA)
REad Fabian vs Bautista, PCI leasing vs Milan
MARINDUQUE MINING vs CA
Law provides 2 instances where multi appeals allowed : 1)SPECPRO
2)in cases where law allows multiple appeals *in case of several
judgments. If its a multiple proceeding,kapag naresolve yung first
issue thereafter court will determine just comnpensation, should
the appeal be by record of appeal? F: NAPOCOR filed exprorpriaiton
case against Marinque, however not the entire property was
expropriated, onlya portion. Usally in expropriation: issues 1) just
compensation H: it is only proper that appeal can be by mere notice
of appeal kasi nothing more issues to be resolved with. Tapos na
lahat. (if may time ka read: Miranda vs ca)
In other words, in cases where rules allowed multiple appeals, no
record of appeal is necessary. Since nothing is left substantial for
courts consideration. In such case, entire cases may be elevated to
the appellate court. Hcne, mere notice of appeal suffice.
SINGLE TIER CASES vs MULTI-TIER CASES
3 SUBJECTS OF APPEAL
Judgment
Final Order
Such matter w/c the law or these rules say are appealable (even if
nto fully disposed of)
See R 109 Sec 1
PROVISIONAL REMEDIES
[1] Rule 57- Preliminary Attachment;
[2] Rule 58- Preliminary Injunction;
[3] Rule 59- Receivership;
[4] Rule 60- Replevin;(used to be known as Delivery of Personal
Property) and
[5] Rule 61- Support Pendente Lite
-
Must read the concept of attachment and injunction

Thse are remedies w/c
alitigant may resort for
preservation and protection of interests
WHEN: during pendency thats why called provisional
1. Preliminary attachment property is taken either in

commencement of action or at any time before entry of judgment
as a security for the satisfaction of judgement that a plaintiff or any
party may recover
KINDS
LEVY/FINAL ATTACHMENT - which has been final
and executor
GARNISHMENT person having in possession any
credit or porpetry whom belonging to another (Sec
8) to take property or attach property of debtor of
the adverse party;
As
to
parties
As to lien
created
As
to
seizure
PRELIMINARY
ATTACHMENT
Involves 3 parties:
creditor, debtor &
garnishee
The
property
attached actually
taken in possession
of sheriff/officer of
the court holding
the writ, under
control
and
custody
and
specific lien is
acquired in the
property
In garnishment by
preliminary
attachment, there
is no actual seizure
of property and no
specific lien is
acquired thereon,
the
property
remains to the
garnishee; but in
garnishment
by
final
attachment
there is already a
seizure. In other
words, if I will
garnish
your
account in the
bank, the money
would
still
be
GARNISHMENT
2 parties: creditor
and debtor
No specific lien is
attached, debtor of
debtor
is
only
required to hold on
to it (i.e not the
specific 100P bill)
In
attachment,
which
is
even preliminary,
there is seizure of
property and it will
be placed under
custodia
legis.
There
is
actual
seizure.

23
As
to
property
there. Nobody can

withdraw from it.
The sheriff cannot
get the money. It
is in the bank.
Normally directed
to
intangible
properties
(e.g.
credits,
collectibles, bank
accounts).
Refers to tangibles
(e.g. a car or a
house).
iii.
iv.
NATURE : proceedings in rem ; once attached it is against a prticular

property; it ripens to judgment against the res or rem when the
order of sale is made after judgment has become final and
executory;
HOW LONG: until debt is paid or sale is had under execution or final
execution
GROUNDS:: Under Sec 1 these are exclusive; being statutory right
it must be followed strictly in favor of debtor. So that attachment
originated on grounds not provided in Sec 1 is = illegal
1. Recovery of amount of specified money/damages
money, any source of obligation; defendant about to
depart in PH w/ intent to defraud creditors
2. Action for money or property note re ina fiduciary
capacity: malversation and embezzlement
3. 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; bili ka
ng ref, installment- may CM ka dyan, wag mong dalhin sa
prov. it is criminal
4.
May it be issued ex parte? Is hearing a req for

issuance of order of attachment? NO. DAVAOLIGHT
vs CA- that a writ of attachment may be issued ex
parte. writs of attachment may properly issue ex
parte provided that the Court is satisfied that the
relevant requisites therefor have been fulfilled by
the applicant, although it may, in its discretion,
require prior hearing on the application with notice
to the defendant; but that levy on property
pursuant to the writ thus issued may not be validly
effected unless preceded, or contemporaneously
accompanied by service on the defendant of
summons, a copy of the complaint (and of the
appointment of guardian ad litem, if any), the
application for attachment (if not incorporated in
but submitted separately from the complaint), the
order of attachment, and the plaintiff's attachment
bond.
F: May 2 DL filed collection against Queensland, May
3 court granted ex parte May11, upon filing of the
bond, writ of attachment was issue by the court. It
was at the time that the writ was issued by the clerk
of court. May 12 summons served upon
defendants.Here comes motion to discharge the
attachment for want of j, because when writ was
issued court hasno juridiciton. H: R 57 speaks of
grant of remedyat the commencement of action or
before entry of judgment; this phrase obviously
refers to the date of filing of complaint. Why?
Because if you will already inform the defendant,
then tatago ny alng yung property.
(Kwento: If an injunction is issued and the prson
loses, maiiwan pb yun?) For the guidance of all
concerned, writ of attachmn tmay issue ex parte
provided that reqs therefor is fulfilled by applicant
although in its discretion it may require prior
hearing.
In an action against a party who has been guilty of a fraud

in contracting the debt or incurring the obligation upon
which the action is brought, or in the performance
thereof;- there is here an amendment
AVAILABLE: may be issued in favor of plaintiff or defendant who sets

a CC against an adverse party
Injunction
Receivership
Replevn
Suporte pendent lite
WHAT COURT MAY ISSUE: Sec 2
Court in w/c action is pending
CA
SC
WHEN MAY A COURT ISSUE AN ORDER OF ATTACHMENT: when the
ff. reqs are complied with (under Sec 3 and 4)
1. Affidavit
Contents:
i.
Applicant has sufficient cause of action or that
sufficient cause of action exists;
ii.
The case is one of those enumerated by law
under Sec 1 (Makes a statement that one
personally knows of the facts. For i.e in a
recovery of money, state you have sufficient
cause of action that you have claim for
damages;
arising
from
whether
a
contract/quasi-contract; that a person is about
to depart in PH to defraud his creditors, those
enumerated under the grounds provided in Sec
1. You allege facts constituting fraud- Dolo
causante-misleading the other such that

because of that misrepresentation lead the
another to enter in the agreement / Paano ka
niloko? For i.e in Insurance contract, uberrimei
fidei yun ; Dolo incidente in the performance;
When you speak of dolo or fraud, you alleged
under Sec 5 of Rule 8 it must be stated w/
particularity)
No other sufficient security for the claim
That the amount due to applicant is as much as
the sum for w/c the order is granted above all
legal counterclaims
2.
Bond / Attachment Bond before the order issues;

TEST FOR LIABILITY: if the court finally adjudge
applicant is not entitled there
that
HOW MAY ATTACHMENT BE IMPLEMENTED Sec 5

No levy may issue unless it is preceded or
contemporaneously accompanied by service of
summons. Sa pag issue hindi pero sa pag levy dapat
Naravasa as held in Davao light:
XPN: not apply where summons cannot serve
personally or by substituted service (R 14 and Sec 14
: unknown owner or known but whereabouts is
unknown cannot ascertain) or defendant is
temporarily absent ( R 14 Sec 16) or non resident or
action (R 14 sec 15) is one in rem or quasi in rem.

24
Note: Sheriff sale is dependent upon validity of levy,

if its not valid hence sheriff sale invalid
kung natalo ka . The ultimate test under 4, that if the judgment shall
finally adjudge that the applicant was not entitled thereto.
It is not only that the bond is liable,
REMEDIES AVAIL AGAINST PERSON WHOM ATTACHMENT IS ISSUED

Secs 12 &13:
1.
-
2.
Discharge of attachment upon giving counter-bond

after due notice and hearing
Under sec 1 yung mga grounds dun say for i.e money,
yung utang 1m. yung property nag isia lang na nalevy
worth 2m, 1m lang bbyran. BUT,
NATURE OF CASH OR COUNTERBOND: in place of the
property attached;
Motion to set aside order on the ground that it is
improperly or irregularly issued or enforced
When is there improper issuance? Reqs: affidavit +

bond ; not one of the grounds under sec 1; that the
bond is insufficient ; the attachment is excessive
May a property discharged by virtue of counterbond
be attached again? No. attachment will have the
effect of nullifying the previous order of discharge.
SURREAL vs RODA (not sure re case title)
properties exempt from attachment are those
enumerated under properties exempt from
execution
May a property in custodia legis be attached? Yes .
To constitute valid levy, the officer must have
possession of the property or under control. The
executing order of attachment, the levying officer
must observe provision of Sec 5 . In order to create
a valid attachment, the enforcement must be levied,
must be preceded
EFFECT OF GARNISHMENT: effect of judgment makes the garnishee

liable for the amount of debt
EFFECT OF ATTACHMENT
Sec 9: Can you attach interest of an heir? YES. Shall not impair the
powers of the executor or administrator . You can only make a sale,
kung final na. However, there can be sale SEC 11 if propety is
perishable; where the interests of party will be subserved thereby;
REMEDY OF THIRD PERSON WHO CLAIMS TITLE
Sec 14: similar like a third party claim under Rule 39 if property is
levied upon by sheriff against party belonging to 3p shal fule 3 rd
party complaint pursuant to Sec 16 of R 39
Why sheriff not liable to any 3p under par 2 of sec

14? Kasi if theres any damage, it the bond that will
answer for it.
Remedy
1. Sec 17 Recovery upon the counter-bond :procedure to be
followed against the counter-bond that wad filed by the
peson is under (Sec 12) Demand (in fact execute muna
then demand) If no payment, motion, notice then
summary hearing
SEC 18
Sec 20: remedy of the party against whom attachment is issued for
damages he has suffered under attachment bond of sec 4
In 17, it is the procedure against the counterbond under sec 12
Sec 20 ka pair Sec 4, okay!
When is the bond under sec 4 liable? If the court finally adjudged
that the applicant was not entitled thereto, this refers to irregular
nad improper issuance
Now, under sec 20, filed before the trial or appeal but never beyond
the period that it becomes final and executor. Why not entield to
the attachment? That applicant has good ground of action, hence
DAVAO LIGHTISSUANCE OF WRIT OF ATTACHMENT vs

ENFORCEMENT - writs of attachment may properly issue ex parte
provided that the Court is satisfied that the relevant requisites
therefor have been fulfilled by the applicant, although it may, in its
discretion, require prior hearing on the application with notice to
the defendant, which means that it may be issued even before the
acquisition of jurisdiction that is before or after service of summons;
but (ENFORCEMENT) that levy on property pursuant to the writ thus
issued may not be validly effected unless preceded, or
contemporaneously accompanied by service on the defendant of 1)
summons, 2) a copy of the complaint (and of the appointment of
guardian ad litem, if any), 3) the application for attachment (if not
incorporated in but submitted separately from the complaint),4)
the order of attachment, and the 5) plaintiff's attachment bond.
MIRANDA vs CA- Old Rules- for fraud to be a ground for attachmentit must be in fraud to enter into a contract- Art 1338
dolo causante- bili ka ng radio ko, pwdng CP. later on, hindi pala.
there was fraud in entering into contract
dolo insidente- it is in the performance of the obli and not in
entering in the contract
New Rules both causante and insidente. overturning the rule in
Miranda case, now Art 1338 and 1174
SPS SALAS vs ADIL- Where an order of attachment is improperly
or irregularly issued, the party whose property has been attached
could file an application with the court a quo for the discharge of
the attachment under Section 13, Rule 57 of the Rules of Court. The
failure of such party to avail of the remedy provided under the Rules
renders his petition for certiorari premature; When the affidavit in
support of the preliminary attachment on the ground that
defendants are disposing their properties in fraud of creditors
merely states such ground in general terms, without specific
allegations of circumstances to show the reason why plaintiffs
believe that defendants are disposing of their properties in fraud of
creditors, it is incumbent upon the judge to give notice to
defendants and to allow them to present their position at a hearing
wherein evidence is to be received; ATTACHMENT NOT AVAILABLE
IN SUIT FOR DAMAGES WHERE AMOUNT IS CONTINGENT. The
writ of attachment is not available in a suit for damages where the
amount claimed is contingent or unliquidated.
CARPIO vs MACADAEG- PRELIMINARY ATTACHMENT, GROUNDS;

REMOVAL OF PROPERTY WITH INTENT TO DEFRAUD CREDITORS.
Mere removal or disposal of property, by itself, is not ground for
issuance of preliminary attachment, notwithstanding absence of any
security for the satisfaction of any judgment against the defendant.
The removal or disposal, to justify preliminary attachment, must
have been made with intent to defraud defendant's creditors.
Mere allegation that you are disposing is not a ground +
there should be allegation that it is to defraud creditors;
that there is no sufficient asset to meet the obligation
CALDERON vs IAC- NOT RENDERED VOID UPON FILING OF THE
COUNTERBOND; DISABILITY OF ATTACHMENT, DEFINED. While
Section 12, Rule 57 of the Rules of Court provides that upon the
filing of a counterbond, the attachment is discharged or dissolved,
nowhere is it provided that the attachment bond is rendered void
and ineffective upon the filing of counterbond. The liability of the
attachment bond is defined in Section 4, Rule 57 of the Rules of
Court. It is clear from the above provision that the responsibility of

25
the surety arises "if the court shall finally adjudge that the plaintiff
was not entitled thereto." In Rocco vs. Meads, 96 Phil. Reports 884,
we held that the liability attaches if the plaintiff is not entitled to the
attachment because the requirements entitling him to the writ are
wanting, or if the plaintiff has no right to the attachment because
the facts stated in his affidavit, or some of them, are untrue. It is,
therefore, evident that upon the dismissal of an attachment
wrongfully issued, the surety is liable for damages as a direct result
of said attachment.
Whether the attachment was discharged by either of the
two (2) ways indicated in the law, i.e., by filing a
counterbond or by showing that the order of attachment
was improperly or irregularly issued, the liability of the
surety on the attachment bond subsists because the final
reckoning is when "the Court shall finally adjudge that the
attaching creditor was not entitled" to the issuance of the
attachment writ in the first place. The attachment debtor
cannot be deemed to have waived any defect in the
issuance of the attachment writ by simply availing himself
of one way of discharging the attachment writ, instead of
the other. Moreover, the filing of a counterbond is a
speedier way of discharging the attachment writ
maliciously sought out by the attaching creditor instead
of the other way, which, in most instances like in the
present case, would require presentation of evidence in a
fullblown trial on the merits and cannot easily be settled
in a pending incident of the case.
If the applicant was not entitled. What are alleged in the
affidavit? Sufficient cause of action, grounds under sec 1,
and no other sufficient security.
Re damages that may be awarded- liability of attachment
bond is limited to damages, where the attachment is
maliciously issued (lazatin vs tuano) damages may be
awarded.
BENITEZ vs IAC - The petitioner's Urgent Motion to Discharge Writ of
Preliminary Attachment was filed under Section 13, Rule 57. The last
sentence of said provision indicates that a hearing must be
conducted by the judge for the purpose of determining whether or
not there really was a defect in the issuance of the attachment.It
appears from the records that no hearing was conducted by the
lower court. Indeed, when the case was called for hearing, the
plaintiff (private respondent herein), failed to appear and the
petitioner's motion was considered submitted for resolution.
-
It was grave abuse of discretion on the part of respondent

Judge Rosario Veloso to deny petitioner's Urgent Motion
to Discharge Writ of Preliminary Attachment, without
conducting a hearing and requiring the plaintiff to
substantiate its allegation of fraud. Neither can
respondent Judge avoid deciding the issue raised in
petitioner's urgent motion by ruling that "the issue
cannot be determined without adducing evidence at the
same time going into the merits of the case." Having
issued the writ of preliminary attachment ex parte, it was
incumbent on the respondent court, upon proper
challenge of its order, to determine whether or not the
same was improvidently issued. A preliminary attachment
is a rigorous remedy which exposes the debtor to
humiliation and annoyance, such that it should not be
abused to cause unnecessary prejudice and, if wrongfully
issued on the basis of false allegation, should at once be
corrected.
SANTOS vs AQUINO There is no rule allowing substitution of

attached property although an attachment may be discharged
wholly or in part upon the security of a counterbond offered by the
defendant upon application to the court, with notice to, and after
hearing, the attaching creditor (Sec. 12, Rule 57, Rules of Court), or
upon application of the defendant, with notice to the applicant and
after hearing, if it appears that the attachment was improperly or
irregularly issued (Sec. 13, Rule 57, Rules of Court).
REMEDY WHEN ATTACHMENT IS EXCESSIVE; REASON THEREFOR.
If an attachment is excessive, the remedy of the defendant is to
apply to the court for a reduction or partial discharge of the
attachment, not the total discharge and substitution of the attached
properties. The reason for this is that the lien acquired by the
plaintiff-creditor as of the date of the original levy would be lost. It
would in effect constitute a deprivation without due process of law
of the attaching creditor's interest in the attached property as
security for the satisfaction of the judgment which he may obtain in
the action.
When a property is attached, a lien is created, when you
lifted it not in accordance with law, violation of due
process.
PERLA vs RAMOLETE (read important) GARNISHEE NEED NOT BE
SERVED WITH SUMMONS IN ORDER THAT COURT COULD ACQUIRE
JURISDICTION OVER HIM. In order that the trial court may validly
acquire jurisdiction to bind the person of the garnishee, it is not
necessary that summons be served upon him. The garnishee need
not be impleaded as a party to the case. All that is necessary for the
trial court lawfully to bind the person of the garnishee or any person
who has in his possession credits belonging to the judgment debtor
is service upon him of the writ of garnishment. The Rules of Court
themselves do not require that the garnishee be served with
summons or impleaded in the case in order to make him liable.
Through service of the writ of garnishment, the garnishee becomes a
"virtual party" to, or a "forced intervenor" in, the case and the trial
court thereby acquires jurisdiction to bind him to compliance with
all orders and processes of the trial court with a view to the
complete satisfaction of the judgment of the court.
If plaintiff able to secure a writ but after the trial, he lost,
may the writ of garnishment be lifted?
PASTORAL vs OLIB - CONSIDERED APPEALED WHERE MAIN ACTION
IS APPEALED. Where the petitioners moved for the discharge of
the writ of preliminary attachment by the respondent court on the
basis of the judgment in their favor . . . the consequence is that
where the main action is appealed, the attachment which may have
been issued as an incident of that action, is also considered
appealed and so also removed from the jurisdiction of the court a
quo. The attachment itself cannot be the subject of a separate case
independent of the principal action because the attachment was
only an incident of such action; EFFECT OF NONPAYMENT OF BOND.
Coming now to the argument that the attachment was
automatically lifted because of the non-payment of the premium on
the attachment bond, the Court feels it is time again to correct a
common misimpression. The rule is that the bond is not deemed
extinguished by reason alone of such non-payment; DISCHARGED
ONLY WHEN JUDGMENT HAS BECOME FINAL AND EXECUTORY.
Finally, on the correct interpretation of Rule 57, Section 19, of the
Rules of Court, we hold that the order of attachment is considered
discharged only where the judgment has already become final and
executory and not when it is still on appeal. The obvious reason is
that, except in a few specified cases, execution pending appeal is
not allowed.
CONSOLIDTAED BANK vs IAC- ACTION FOR DAMAGES WILL NOT LIE
WHERE ATTACHMENT WAS PROPER; RES JUDICATA APPLIES. Be
it noted that the action of private respondents here for damages
because of the attachment has already been terminated, the final
judgments thereon being sufficiently clear that the action for
damages would not lie for the simple reason that the attachment
was proper. (This is evident in G.R. No. 72053 entitled Nation's

26
Knitting Enterprises, Inc.; Kiok Lay alias Ching Yu Dee and Spouse;
Manuel Kiok and Spouse and Honorable Manuel V. Romillo, Jr., as
Judge of the Regional Trial Court, National Capital Judicial Region,
Branch CX, Pasay City, Petitioners, versus The Consolidated Bank
and Trust Corporation (Solidbank) and The Honorable Intermediate
Appellate Court, Respondent (December 4, 1985) and G.R. No.
68440 entitled Nation's Knitting Enterprises, Inc.; Kiok Lay alias
Ching Yu Dee and Spouse; and Manuel Kiok and Spouse, and Hon.
Manuel V. Romillo, Jr., in his capacity as Judge, Regional Trial Court,
National Capital Judicial Region, Br. CX, Pasay City, Petitioners versus
The Consolidated Bank and Trust Corporation [Solidbank] and The
Intermediate Appellate Court, Respondents (October 10, 1984)
which respectively denied review of CA-G.R. SP-No. 04915 and CAG.R. SP-No. 01494 and both of which had held that the questioned
attachment was proper). Surely, res judicata bars Knitting's
complaint.
-
An application for damages against the attachment bond

can only be sought in the ocurt that issued
attachmentnot in a seperaate proceeding
SANTOS vs CA
F: Santos 1st cs was dismissed for lack of J. tractor was in
the possession of PRC. PRC filed a 3 rd party claim ako ang
may-ari nito hindi si D cruz and Garcia. Santos amended
its complaint to include PRC a additional D. J of Inferrior
court was 2k and below, dito 1600 lang kasi. A similar
action was later on filed by Santos against PRC as sole
DPff was awarded the sum of p1600
-
This decision was appealed being a subj of certiorari in

CFI. PRC filed with CFI a civil action against Santos for
damages for wrongful Levy for the tractor in the Cotabato
cs. PRCs claim must be raised in the same action to be
included in the final judgjment of the cs.
SC- The claim of PRC was a third party claim. The rule
invoked by Santos is improper. The filing of amended
complaint does not cure the defect. Since the damages
sought are not the cause of writ of attachment be such
writ was filed against the party who WAS NOT A PARTY in
that case where seizure was based.PRC is a 3 rd party
claimant and can file a separate action.The filing of the
amendment did not cure the defect bec seizure is by the
orig writ and none was issued under the amended
complaint.
May a D recover damages resorting fr an illegal
attachment eventhough judgment rendered is is in favor
of the Pff? Yes, when the writ of attachment was issued
w/o just and legal ground. ( you deprived him, you are
not entitled to the attachment in the 1 st place).
when may app for damages for illegal attachemtn be

filed?
i.
before trial
ii.
before judgment is final and exe
iii.
before appeal is perfected
show damages in the amt, attaching cr and surety must

be given due notice- form of compulsory or
supplementary counterclaim; in appeal- t is an application
LEE LIN vs C&S AGRO- Liability of counterbond is to seek

replacement. Thats why application is only after the writ is
unsatisfied w/c presuppose that the judgment is final and executor.
Need not go under Sec. 20.ATTACHMENT; BONDS PUT UP BY
ATTACHING CREDITOR AND ADVERSE PARTY, CONSTRUED. There
is an apparent confusion between a bond put up by an attaching

creditor for the issuance of writs of attachment covered by Section 4
of Rule 57 of the Rules of Court, and the counterbond given by the
adverse party for the discharge of writs of attachment already issued
covered by Section 12 of the same Rule 57.
DAMAGES FOR ILLEGAL ATTACHMENT; MAY BE CLAIMED
ONLY AFTER PROPER HEARING. It is the claim for
damages on account of illegal attachment that may be
awarded only after proper hearing and which shall be
included in the final judgment ( commencement or at any
time before judgment is final) if commencement- no
answer yet, pag file mo ng answer, make sure you raise a
counterclaim) . That claim must be filed before the trial or
before appeal is perfected (app for attachment is filed
during trialyou shld file a supplemental counterclaim
before judgment is final) or before the judgment becomes
executory, with due notice to the attaching creditor and
his surety, pursuant to Section 20 of Rule 57 of the Rules
of Court. It is thus clear that the cases cited by the Surety
requiring notice of hearing before the finality of the
judgment in regards the claim of damages have no
applicability in the case at bar. The application by the Trial
Court of Section 20, Rule 57, is likewise misplaced.Under
Section 17 of Rule 57, in order that the judgment creditor
may recover from the Surety on the counterbond, it is
necessary (1) that execution be first issued against the
principal debtor and that such execution was returned
unsatisfied in whole or in part; (2) that the creditor made
a demand upon the surety for the satisfaction of the
judgment; ( if insolvent demand ka )and (3) the surety
be given notice and a summary hearing in the same
action as to his liability for the judgment under his
counterbond (magkano pa ba? baka may naattach na,
may summary hearing not to determine if he is liable but
extent of his liability).
sec 17 to 12- you only apply when exe is unsatisfied
which presupposes that it is final and exe- to answer to
the judgment rendered by the court
counterbond- if damages by reason for illegal issuance or
enforcement- file for it before judgment is final and
executor
RIVERA vs TALAVERA- it was relying sec 20 claim for damages by a
party against whom attachment was issued
sec 12 and 17 after judgment has become exe and returned
unsatisfied, bond automatically attachments, issued against the
security
reqts
1. exe against principal obligor
2. unsatisfied
3. demand against surety
4. summary hearing
TOWERS ASSURANCE CORPORATION, petitioner, vs. ORORAMA
SUPERMART, ITS OWNER-PROPRIETOR, SEE HONG and JUDGE
BENJAMIN K. GOROSPE- Under section 17, in order that the
judgment creditor might recover from the surety on the
counterbond, it is necessary (1) that execution be first issued
against the principal debtor and that such execution was returned
unsatisfied in whole or in part; (2) that the creditor made a demand
upon the surety for the satisfaction of the judgment, and (3) that
the surety be given notice and a summary hearing in the same
action as to his liability for the judgment under his counterbond.
F: See Hong obtained a writ of attachment- property of
Spss Ong. Ong filed counterbond- Towers as security. Ong
and Towers- bound themselves solidarily both of them
were made liable- Ong and towers writ of exe- Ong and
towers towers nagreklamo- adelantado premature bec

27
procedure of exe against principal 1st.but this reqt is not

applicable bec it assumed solidary liability for the
satisfaction of the claim. Escolin said, pwede nay an kasi
they are JOINT AND SOLIDARILY LIABLE.
The first requisite mentioned above is not applicable to
this case because Towers Assurance Corporation
assumed a solidary liability for the satisfaction of the
judgment. A surety is not entitled to the exhaustion of
the properties of the principal debtor (Art. 2959, Civil
Code; Luzon Steel Corporation vs. Sia, L-26449, May 15,
1969, 28 SCRA 58, 63).
But certainly, the surety is entitled to be, heard before an
execution can be issued against him since he is not a
party in the case involving his principal. Notice and
hearing constitute the essence of procedural due process.
reqts:
i.
application;
ii.
judgment becomes final and exe
before trial- raise it as a counterclaim, before attachment
is issued before answer; otherwise file it as a
counterclaim- it arises out of a transaction that is the subj
matter upon Pffs claim? there is no pleading which is
supplemental claim
ESCOLIN: kung manalo ka na bira ka na, ask for a hearing
In what court may the claim for damages be made? the
app for damages must be filed in the same action. (before
trial, before perfection of appeal, before final and exe)
otherwise, it is barred.
THE CONSOLIDATED BANK AND TRUST CORPORATION (SOLIDBANK),

CRISOSTOMO M. DE LOS REYES, AMANTE PERALTA, NESTOR ULET
and LORENZO SAGA, petitioners, vs. HON. INTERMEDIATE APPELLATE
COURT
ACTION FOR DAMAGES WILL NOT LIE WHERE
ATTACHMENT WAS PROPER; RES JUDICATA APPLIES.
Be it noted that the action of private respondents here
for damages because of the attachment has already been
terminated, the final judgments thereon being sufficiently
clear that the action for damages would not lie for the
simple reason that the attachment was proper.
Note: you cannot claim damages for wrongful attachment
in a separate action
CALDERON vs IAC
EFFECT OF COUNTER-BOND- Attachment not rendered
void upon the filing of counter-bond; DISABILITY OF
ATTACHMENT, DEFINED. While Section 12, Rule 57 of
the Rules of Court provides that upon the filing of a
counterbond, the attachment is discharged or dissolved,
nowhere is it provided that the attachment bond is
rendered void and ineffective upon the filing of
counterbond. The liability of the attachment bond is
defined in Section 4, Rule 57 of the Rules of Court. It is
clear from the above provision that the responsibility of
the surety arises "if the court shall finally adjudge that the
plaintiff was not entitled thereto." In Rocco vs. Meads, 96
Phil. Reports 884, we held that the liability attaches if the
plaintiff is not entitled to the attachment because the
requirements entitling him to the writ are wanting, or if
the plaintiff has no right to the attachment because the
facts stated in his affidavit, or some of them, are untrue.
It is, therefore, evident that upon the dismissal of an
attachment wrongfully issued, the surety is liable for
damages as a direct result of said attachmen
LIABILITY OF SURETY SUBSISTS UNTIL THE COURT SHALL
FINALLY ADJUDGE THAT THE CREDITOR WAS NOT
ENTITLED TO THE ISSUANCE OF THE ATTACHMENT WRIT.
Whether the attachment was discharged by either of
the two (2) ways indicated in the law, i.e., by filing a

counterbond or by showing that the order of attachment
was improperly or irregularly issued, the liability of the
surety on the attachment bond subsists because the final
reckoning is when "the Court shall finally adjudge that the
attaching creditor was not entitled" to the issuance of the
attachment writ in the first place. The attachment debtor
cannot be deemed to have waived any defect in the
issuance of the attachment writ by simply availing himself
of one way of discharging the attachment writ, instead of
the other. Moreover, the filing of a counterbond is a
speedier way of discharging the attachment writ
maliciously sought out by the attaching creditor instead
of the other way, which, in most instances like in the
present case, would require presentation of evidence in a
fullblown trial on the merits and cannot easily be settled
in a pending incident of the case.
F: binili ni Calderon ang LBC and 5 affiliates. 21 days after
the sale, the BOC suspended LBC for failure to pay almost
P1.5m in form of customs taxes and duties. To lift the
suspension Calderon paid the amt of tax due. Calderon
filed an action against Shulze to recover the P1.5- abt to
depart fr the Phils in order to defraud the cr. D filed an
answer and counterclaim, counterbond to lift the
attachment. after trial the court dismissed the complaint.
the decision was affirmed on appeal.
petition in the SC, the surety contended that the
dissolution of the attachment in sec 4 was lifted when D
filed a counterbond in sec 12, therefore no longer liable.
bond, then counterbond- bond was lifted. then D won,
there was a liability- no due diligence audit.- (di naman
pala niloko)Pff did not appear on the trial.
binirahin na ng insurance co- wala nakong liability
because nalift na un bec of the counterbond
HELD: NO. It is clear from the above provision that the
responsibility of the surety arises "if the court shall finally
adjudge that the plaintiff was not entitled thereto."
Section 4. Condition of applicant's bond. The party
applying for the order must thereafter give a bond
executed to the adverse party in the amount fixed by the
court in its order granting the issuance of the writ,
conditioned that the latter will (reqts) 1) pay all the costs
which may be adjudged to the adverse party and 2) all
damages which he may sustain by reason of the
attachment, if the court shall finally adjudge that the
applicant was not entitled thereto.
It is, therefore, evident that upon the dismissal of an
attachment wrongfully issued, the surety is liable for
damages as a direct result of said attachment.Equally
untenable is the Surety's contention that by filing a
counterbond, private respondents waived any defect or
flaw in the issuance of the attachment writ, for they could
have sought, without need of filing any counterbond, the
discharge of the attachment if the same was improperly or
irregularly issued, as provided in Section 13, Rule 57 of
the Rules of Court.
2 REMEDIES: file a counterbond or discharge that
improperly issued or enforced. Petitioners contention:
they shld have asked for the discharge. Whether the
attachment was discharged by either of the two (2) ways
indicated in the law, i.e., by filing a counterbond or by
showing that the order of attachment was improperly or
irregularly issued, the liability of the surety on the
attachment bond subsists because the final reckoning is
when "the Court shall finally adjudge that the attaching
creditor was not entitled" to the issuance of the
attachment writ in the first place.

28
As a general rule, the liability on the attachment bond is

limited to actual damages but in this case moral and exe
damages may be given if the .
ATTACHMENT BOND LIABILITY EXTENDS TO MORAL AND
EXEMPLARY DAMAGES IN CASE ATTACHMENT WAS
MALICIOUSLY SUED OUT AND ESTABLISHED TO BE SO.
While as a general rule, the liability on the attachment
bond is limited to actual damages, moral and exemplary
damages may be recovered where the attachment was
alleged to be maliciously issued out and established to be
so. (Lazatin vs. Twano et al, L-12736, July 31, 1961). Well
settled is the rule that the factual findings of the trial
court are entitled to great weight and respect on appeal,
especially when established by unrebutted testimonial
and documentary evidence, as in this case.
Recovery of moral damages general rule not entitled
unless it is established that attachment was maliciously
issued out. if the judgment of the appellate court be
favorable to the party against whom attachment was
issued. Apply ka before judgment becomes final and
executory. Reckoning basis is the affidavit ( your cause of
action must be clearly established here)application with
notice to the surety- before the judgment in the appellate
court becomes final and exe.
SPS. OSCAR T. OLIB and ROBERTA R. OLIB, petitioners, vs. HON.

EDELWINA C. PASTORAL, Judge of the Regional Trial Court of Agusan
del Norte and Butuan City, Branch III and CORAZON M. NAVIA,
Pff sued D sps., a writ of attachment was granted. after
judgment, D won but no pronouncement in the decision
as to dissolution of attachment. P appealed. D dissolve
the attachment P contended- no more J bec it is not on
appeal; Insurance- no obli anymore bec premiums were
not paid
SC- when the main vase was appeal, walang paki and
court kung di ka nagbayad ng premium. You are now a
bondsman.
REMEDIAL LAW; PROVISIONAL REMEDY; ATTACHMENT;
DEFINITION OF. Attachment is defined as a provisional
remedy by which the property of an adverse party is
taken into legal custody, either at the commencement of
an action or at any time thereafter, as a security for the
satisfaction of any judgment that may be recovered by
the plaintiff or any proper party.
ANCILLARY TO A PRINCIPAL PROCEEDING. Attachment
is an auxiliary remedy and cannot have an independent
existence apart from the main suit or claim instituted by
the plaintiff against the defendant. Being merely ancillary
to a principal proceeding, the attachment must fail if the
suit itself cannot be maintained as the purpose of the writ
can no longer be justified.
CONSIDERED APPEALED WHERE MAIN ACTION IS
APPEALED. Where the petitioners moved for the
discharge of the writ of preliminary attachment by the
respondent court on the basis of the judgment in their
favor . . . the consequence is that where the main action
is appealed, the attachment which may have been issued
as an incident of that action, is also considered appealed
and so also removed from the jurisdiction of the court a
quo. The attachment itself cannot be the subject of a
separate case independent of the principal action
because the attachment was only an incident of such
action.
EFFECT OF NONPAYMENT OF BOND. Coming now to
the argument that the attachment was automatically
lifted because of the non-payment of the premium on the
attachment bond, the Court feels it is time again to
correct a common misimpression. The rule is that the
bond is not deemed extinguished by reason alone of such

non-payment.
DISCHARGED ONLY WHEN JUDGMENT HAS BECOME
FINAL AND EXECUTORY. Finally, on the correct
interpretation of Rule 57, Section 19, of the Rules of
Court, we hold that the order of attachment is considered
discharged only where the judgment has already become
final and executory and not when it is still on appeal. The
obvious reason is that, except in a few specified cases,
execution pending appeal is not allowed.
RE HEARING
writ of attachment- needs notice and hearing;
Counterbond- needs notice and hearing
if attachment bond- remedy sec 20

counterbond -remedy sec 17
however in injunction we will be dealing with
injunction bond, counterbond to lift it ganun din sa
replevin bond, counterbond to lift it anong remedy
mo? before FINALITY of judgment
injunction- when may be issued? can it be issued ex
parte?
RULE 58
PRELIMINARY INJUNCTION
JURISDICTION AFFECTING INJUNCTION
Sec 21 f BP 129 : enforceable within the region
Sec 14 of BP 129: RTC has First Judicial Region- Ilocos Norte, Abra, LA
Trinidad -> injunction is enforceable only within that region. Hence,
if injunction was obtained cannot be enforced in Pampanga w/c is
located under another region.
DIRECTOR OF LAND vs ALIGAEN- Issue: WoN the Court in Roxas City
has authority to issue injunction notwithstanding that the Bureau of
Telecommunication has offices in Manila and therefore beyond the
jurisdiction of the judicial district. H: YES. Because while the director
of telecommunication has offices in Manila, nonetheless, the acts to
be enjoined is within the jurisdiction of the court. It does not matter
that some of the respondents hold office outside the territorial
jurisdiction of Trial Court. The acts sought to be enjoined is within
the jurisdiction of the Court. Injunction with Preliminary Injunction"
were relative to the establishment of a local telephone system being
done within the territorial boundaries of the judicial district of the
Court of First Instance of Roxas, the Court similarly upheld the
jurisdiction of the Court of First Instance of Roxas over the petition,
although two of the respondents named therein the Director of the
Bureau of Telecommunications, and the Regional Superintendent of
Region IV of the Bureau of Telecommunications had their official
stations at Manila and Iloilo City, respectively.
GONZALES vs PUBLIC WORKS CFI Davao had authority to issue

injunction to issue against Public Works. Because acts sought to be
committed is in Davao.. wherein the only question raised was
whether the Court of First Instance of Davao had jurisdiction to
entertain a case the main purpose of which was to prevent the
enforcement of a decision of the Secretary of Public Works who was
in Manila, this Court held that inasmuch as the acts sought to be
restrained were to be performed within the territorial boundaries of
the province of Davao, the Court of First Instance of Davao had
jurisdiction to hear and decide the case, and to issue the necessary
injunctive order. This Gonzales case was an action for certiorari and
prohibition with preliminary injunction and/or preliminary
mandatory injunction to prevent the demolition of Gonzales' dam in
Davao in compliance with the order of the Secretary of Public
Works.

29
mandatory injunction in any case, dispute or controversy

involving an infrastructure project
LIMJAP vs ANIMAS Does the CFI Manila has jurisdiction over

Davao? YES. Because the public respondents have offices in Manila.
The PPA officials are holding office in Manila although the acts
sought are committed in Davao.
RULE: Either where the office sought to be enjoined
or the act is performed
DAGUPAN vs PANO F: Dagupan Electirc Co. cut-off the electric
connection of a certain consumer in Dagupan. An action as filed in
QC. Then there wa spraerfor issuance of preliminary mandatory
injunction. The queston: Whether the QC Court has authority over
Dagupan Electric over an act committed in Dagupan City. YES.
Because Dagupan Electirc Co., has principal offices in QC. The one
ejoined is the corporation. That the Court of First Instance of Manila
(now the Regional Trial Court) has jurisdiction to issue a Writ of
Injunction against PPA or any of its officials, if need be, since its
offices are situated at the B.F. Homes Condominium, Intramuros,
Manila, where its business is managed by its Board of Directors and
General Manager, and, therefore, within the territorial jurisdiction
of the Court of First Instance of Manila for purposes of Section 44 of
Republic Act No. 296, as amended. Its main office is in Manila with
field offices only scattered in different ports of the country.
GARCIA vs BURGOS, provides that no injunction may be

issued in case involving infrastructure of the
government. Enjoining the implementation of Project
Metro Cebu Phase III. May this be enjoined? No. this is
considered an infrastructure project.
3.
BCDA vs UY- no court except SC may issue TRO and

Preliminary Injunction. In this case, Uy awarded a It has
jurisdiction to hear a case of TRO. What RA 7227 prohibit
is merely for a court other than SC to issue a TRO or
Preliminary Injunction.
DFA vs FALCON The DFA has open for bidding the
matter of supply of machine to produce passport with
biometric features. It was injuncted. DFA raised the issue
where RTC has jurisdiction to that arguing RA 7227. SC:
those cannot be injuncted are infrastructures ( in relation
to infrastructure, BOT projects etc). here in this case, the
supplies of passports. Petitioners failed to prove it is BOT
project. Clearly, what is involved here is a procurement
contract . It is covered by RA 9184.But this is not
infrastructure project.
DE CANO vs EDU Here, petitioner seeks primarily the annulment of

the dismissal order issued by respondent Edu, mandamus and
injunction being then merely coronary remedies to the main relief
sought, and what is prayed to be enjoined, as in fact the trial court
did enjoin by preliminary injunction, is the implementation of the
termination order against the petitioner. It is true that the order of
dismissal was issued by respondent Edu, but it was to be
implemented in Dagupan City by his subordinate officer, respondent
Acting Registrar of the LTC stationed at Dagupan City. Insofar,
therefore, as respondent Edu is concerned, the order terminating
the services of respondent was a fait accompli and this he had done
without authority, as earlier discussed. The injunction is question,
consequently, must be taken only to restrain the implementation of
respondent Edu's order by his co-respondent whose official station at
Dagupan City is within the territorial boundaries of the trial court's
jurisdictional district.
OLONGAPO PWER LIGHT vs NPC The Muncipality of Olongapo
entered into agreement w/ NPC for the latter to supply directly
electric energy to the municipality. The existing supplier of
electricity in Olongapo is the Olongapo Pwer Light. There were 2
causes of action: 1) to enjoin implementation of the contract
2)action against the Munvioakity to stop them from harassing and
preventing the employees of Olongapo Electric Light form
constructing its electric light. Ruling: The one issued injunction was
Manila Court, Does the Manila Court have the authority to issue
injunction? YES. While the acts are to be implemented in Olongapo,
one of the parties (the NPC) has prcnipal office in manila, hence the
court has jurisdiction. Woeevr, in the 2 nd cause of action, the acts
sought to be enjoined (re preventing harassment) is beyond the
jurisdiction of Manila court. Because the acts as well as defendant
are all in Olongapo
ALLIED DOMEQ PHILIPPINES vs VILLALON CDC pursuant

to request BOC, there were importations passed through
Clark Air Base impounded to BOC. Allied Domeq is the
exclusive seller of brandy in Phils ask the CDC from
stopping the impound of the liquors. Issue: that could be
done through injunction. Held: NO.
4.
-
2 kinds:
1.
YANGA (? ) BAY LOGGING CASE The injunction may be issued by

the RTC where public official holds office or the act sought to be
enjoined.
SPECIAL LAWS
1. PD 1818 prohibited judges from issuing restraining
orders against government infrastructure projects,
stating in its sole provision: No court in the Philippines
shall have jurisdiction to issue any restraining order,
preliminary injunction or preliminary order, preliminary
RA 7227- BCDA ACT Under Sec 21 of RA 7727- Injunction

and Restraining Order. The implementation of the
projects for the conversion into alternative productive
uses of the military reservations are urgent and necessary
and shall not be restrained or enjoined except by an
order issued by the Supreme Court of the Philippines. It
provides that no court except the SC may issue a TRO or
Preliminary Injunction
2.
RA 8975- infrastructures and BOT projects and related

activities
LABOR CASES NO regular court can issue injunctive
releief or injucntve order against he sheriff/labor court of
NLRC to stop the implementation of sheriff sale Kasi
ganito yan, May an RTC stop another sheriff on the
gorund of 3p claim? YES. Not undue interference.
Because if such property belongs to 3p, then the first
sheriff exceeded. But, sheriff of NLRC cannot be enjoined
by RTC. (Read whether this decision is still good)
PREVENTIVE/MANDATORY
mandatory- di pa nagagawa
preventive- nagawa na siya
prelim- order granted at any stage requiring a party to
refrain from doing a particular act
it may also require the performance of a particular actmandatory
PRELIMINARY/FINAL
prelim Sec 1 of R 58 ; principal action not provisional;
where the act is not consummated thing OR it still in the
process of being done. But if natapos na, wag kana hingi
prelim injunction. Ask Preliminary Mandatory Injucntion

30
prelim mandatory injunction

final injunction once that is included in the judgemne
tas part of the relief; it is not a provisional rmeedy but a
principal action.
PURPOSE of P.I- to maintain the status uqo bet the
parties and subj matet rltiigate dby them during the
pendnecyof the action. STATUS QUO the last feasible
uncontested statu of the partiess w/c preceded the
controversy. (for complete, status quo antebellum
before the controversy); maybe resorted to by litigants
for the protection of their rights.
Iwhen we speak mandatory injunction, it seeks the reestablishment of the condition of the parte w/c was
recently intrerrupted by one of the parties. PI or PMI
cannot be done to establish anew relation. Hence, in one
case, whether prleimianry or final, it does not protect a
future right. It cannot be used to create a new relation.
ywitness form testifying against the other. For. i.e

husband and wife.
- where ac ourt allowsprosecution of wife of the caused
totestify against him, you can ask for injunction. Because
if not, it would tend the judgment ineffectual.
(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. (3a)
- violation of the right and if not enjoined, would tender
ht ejudgment ineffectual
- if di mo stop, it will make the judgment later on
ineffectual
eg losing bidders, natalo ung incumbent, magfile ng
injunction yan to render the bidding null and void kasi
dinaya siya until resolved, if walang injunction pano nay
an? may bago ng contract.
purpose of injunction- is only to maintain the status quo
Section 1. Preliminary injunction defined; classes. A preliminary

injunction is an order granted at any stage of an action or
proceeding prior to the judgment or final order, requiring a party or
a court, agency or a person to refrain from a particular act or acts. It
may also require the performance of a particular act or acts, in
which case it shall be known as a preliminary mandatory injunction.
(1a)
WHO MAY GRANT INJUNCTION
Section 2. Who may grant preliminary injunction. A preliminary
injunction may be granted by the court where the action or
proceeding is pending. If the action or proceeding is pending in the
Court of Appeals or in the Supreme Court, it may be issued by said
court or any member thereof. (2a)
Section 3. Grounds for issuance of preliminary injunction. A
preliminary injunction may be granted when it is established:
(a) That the applicant is1) entitled to the relief
demanded (establish a clear right) , and the 2)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 rfor limited period or
perpetually
- the main action is for injunction the you can ask
for preliminary injunction
- for I,e action to retsrain the dfeendnat form
operating a factory that is emitting excessive.
Polluted smoke . Main action is to stop from
maintaining the factory. Injunction w/ preliminary
injunction kasi kung injunction lang, mag ka cnacer
of lungs kana, dedo na :D
(b) That the commission, continuance or nonperformance of the act or acts complained of during the
litigation would probably work injustice to the applicant;
or
- the continuance of the act may probably work injustice
- for I,e to prevent further racts of siposesison of plaintiff
in acts of forcible entry. Main action is forcible entery but
asking the court for preliminary mandatory injucnction to
prevent further acts of dispossession against the plaintiff.
Otherwise, ifduring pendency of the case and w/o
mandatory injunction, he will continue enjoying the
possession.
- action to cancel contract in violation of terms thereof,
P.I may granted to retsrain theimpelmentaton of
cancellation of contract. If you dont retsrain it, it will
work injustice to the appellant kasi nacancel na contract,
- for i.e In evidence, there are those disqualified b
yreason of relationship and privilege communciaiton b
> In order of Preliminary Injuctnion to be granted

REQS:
i.
a clear right (if duda jan ang right, wag i-grant,
must establish a clear right)
PROCEDURAL REQUIREMENTS FOR ISSUANCE OF INJUNCTION
1. It must be verified showing facts that applicant is
entiled the relief demanded (shwoign grounds
under Sec 3)
REQS FOR THE ISSUANCE
i.
Existence of right sought to be protected (right in
esse)
ii.
Acts sought to be prevented are violativ e of the said
right
Q: May a court grant an application ex parte? GR:

NO!
XPN:
As distinguish in preliminary attachment , it may be
issued ex parte
Section 4. Verified application and bond for preliminary injunction or

temporary restraining order. A preliminary injunction or
temporary restraining order (TRO) may be granted only when:
(a) The application in the action or proceeding is
verified, and shows facts entitling the applicant to
the relief demanded; and
you must establish a clear right
(b) Unless exempted by the court the applicant files
with the court where the action or proceeding is
pending, a bond executed to the party or person
enjoined, in an amount to be fixed by the court, to
the effect that the applicant will pay to such party or
person all damages which he may sustain by reason
of the injunction or temporary restraining order if
the court should finally decide that the applicant was
not entitled thereto. Upon approval of the requisite
bond, a writ of preliminary injunction shall be
issued. (4a)
cond to the bond- not entitled thereto
damages of this bond sec 20- before finality ( app,
notice and hearing included in the judgment)
(c) When an application for a writ of preliminary
injunction or a temporary restraining order is
included in a complaint or any initiatory pleading,
the case, if filed in a multiple-sala court, shall be

31
raffled only after notice to and in the presence of the

adverse party or the person to be enjoined. In any
event, such notice shall be preceded, or
contemporaneously accompanied, by service of
summons, together with a copy of the complaint or
initiatory pleading and the applicant's affidavit and
bond, upon the adverse party in the Philippines.
before the raffle :
a. notify the adverse party
b. in the presence of the adverse party or the person to
be enjoined
However, where the summons could not be served
personally or by substituted service despite diligent
efforts, or the adverse party is a resident of the
Philippines temporarily absent therefrom or is a
nonresident thereof, the requirement of prior or
contemporaneous service of summons shall not
apply.(same with attachment)
d.The application for a temporary restraining order shall
thereafter be acted upon only after all parties are heard
in a summary hearing which shall be conducted within
twenty-four (24) hours after the sheriff's return of service
and/or the records are received by the branch selected
by raffle and to which the records shall be transmitted
immediately.
finile mo ngayon- same day ung summons ( c) dapat
meron na
bukas- hearing na kayo
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.
even w/o service of summons, pwd mag-issue ng TRO exe judge
pero 72 hrs lang yan.
then summary hearing, ang nakassign na judge to determine
whether to extend 72 hrs to 20 days
In the event that the application for preliminary injunction is denied
or not resolved within the said period ( 20 days), the temporary
restraining order is deemed, automatically vacated ( only but it does
not mean you will not determine injunction based on evidence, it
does not mean that court is powerless- essence is irreparable injury,
not the pd). 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._ ( if different ground ibang
usapan)
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 ( ang daya talaga) . (5a)
what is the reconing pd of 72 hrs? fr its ISSUANCE
if 20 days- it is fr SERVICE
Amendment- last par
-
Whether injunction or TRO- cannot be issue dw/o hearing

INJUNCTION vs TRO same, it is called TRO when theres
summary hearing not full-blown hearing. You call it
preliminary injunction after a full hearing. Sec
Section 5. Preliminary injunction not granted without notice;
exception. ( general rule) No preliminary injunction shall be
granted without hearing and prior notice to the party or person
sought to be enjoined. (exception) 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 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 said 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, determine within the same period
whether or not the preliminary injunction shall be granted, and
accordingly issue the corresponding order. (Bar Matter No. 803, 17
February 1998)- see amendment
within the 20 days dapat may hearing
prelim injuction- hearing w/in 24 hrs
eg case was filed with prayer for prelim injunction. TRO
immediately. hearing w/in 20 day pd. motion to inhibit the judge.
judge inhibited himself. case was raffled to another court. Pff filed a
motion to resolve won to issue the prelim injunction bec the 20 day
pd already lapsed. Court did not issue the injunction.- ano ba yan?
mali masyado literal.
However, and 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 multiple-sala
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 he 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
RULE: if from the affidavits, there is great irreparable

damage, injunction may be issued for 20 days.
Correlated) of Sec 4 , here if application of injunction is
prayed for in initiatory pleading, then notice will be sent.
In 72 hours, wala pa talag summons while in 20 days, the
TRO can already be issued w/o even a summary hearing if
there would be great or irreparable injury but may notice
na, an serve na summons.
W/in 72 hrs COURT will determine by conducting hearing
to see to it that a preliminary injunction must be issued
(for period of 20 days)
REMEDIES AGAINST INJUNCTION

Section 6. Grounds for objection to, or for motion of dissolution of,
injunction or restraining order. The application for injunction or
restraining order may be denied, upon a showing of its1)
insufficiency ( not sufficient on its face; re verified petition reqt ,
that applicant has clear right, that acs sought to be enjoined is
vioaltive of said right). The injunction or restraining order may also
be denied, or, if granted, may be dissolved, on other grounds upon
affidavits of the party or person enjoined, which may be opposed by
the applicant also by affidavits. It may further be denied, or if
granted, may be dissolved, if it appears after hearing that although
the applicant is entitled to the injunction or restraining order, the
issuance or continuance thereof, as the case may be, would cause
irreparable damage to the party or person enjoined while the
applicant can be fully compensated for such damages as he may
suffer, and the former files a bond in an amount fixed by the court
conditioned that he will pay all damages which the applicant may
suffer by the denial or the dissolution of the injunction or restraining
order. If it appears that the extent of the preliminary injunction or
restraining order granted is too great, it may be modified. (6a)
eg pinapa-stop mo ung support pendent lite, nagfile ka ng
bond- mamamatay pag di mo pinakain,- irreparable yun
Section 7. Service of copies of bonds; effect of disapproval of same.
The party filing a bond in accordance with the provisions of this
Rule shall forthwith serve a copy of such bond on the other party,
who may except to the sufficiency of the bond, or of the surety or
sureties thereon. If the applicant's bond is found to be insufficient in

32
amount, or if the surety or sureties thereon fail to justify, and a

bond sufficient in amount with sufficient sureties approved after
justification is not filed forthwith the injunction shall be dissolved. If
the bond of the adverse party is found to be insufficient in amount,
or the surety or sureties thereon fail to justify a bond sufficient in
amount with sufficient sureties approved after justification is not
filed forthwith, the injunction shall be granted or restored, as the
case may be. (8a)
Another ground, re insufficiency of bond whether
injunction bond or injunction counterbond
In attachment, we said that the procedure to go against
the attachment counterbond is Sec 17. On the
otherhand, to claim dmage against issuance, under Sec
20, must file it before judgment or before appeal is
perfected. In injunction the procedure is Sec 20 of Rule
57.
Counterbond vs Attachment Counterbond is a
replacement, usually you ask when judgment is final and
executor not befre.
Section 8. Judgment to include damages against party and sureties.
At the trial, the amount of damages to be awarded to either
party, upon the bond of the adverse party, shall be claimed,
ascertained, and awarded under the same procedure prescribed in
section 20 of Rule 57. (9a)
Section 9. When final injunction granted. If after the trial of the
action it appears that the applicant is entitled to have the act or acts
complained of permanently enjoined the court shall grant a final
injunction perpetually restraining the party or person enjoined from
the commission or continuance of the act or acts of confirming the
preliminary mandatory injunction. (10a)
Correlate with Rule 39 of Sec 4; not a matter of right but
judgments not stayed on appeal = amatter of right
Q: Can the court restore injunction?
IS IT NCECESSARY FOR MOTON OF DISSOLUTION BE
VERIFIED? I most cases, need not be evriefied.
Is a mere offer of counterbond sufficient to warrant the
dissolution? NO. the mere offer oc conuterbond does not
suffice to warrant the dissolution of the writ. Underlying
reaos is gret and irreparable damage. Damage that would
cause if injucnton is not issued.
When the bond may eb filed? UNDERLYING TEST: the
bond , the applicant not entitled
Injunction is not proper to compel one spouse to

cohabit to the other. you cannot restrain when the
act
is
consummated.
If
already
done
prelim/mandatory injunction. even consummatedallegation that the D will cont to perform the
objectionable act if not prevented.
BROCA vs ENRILLA- Injunction not proper- removal of an officer; title

to prop is in dispute- n/a to transfer possession fr one person to
another ( but allowed in ejectment cs)
eg of cases where issuance of injunction is proper
1. petition for relief fr judgment rule 38
2. action for Rule 47
3. petition for certiorari or mandamus
4. law is unconsti- you can stop crim prosecution
5. restrain enforcement of invalid law- deprivation of prop
6. cannot prevent a lawful trade
REQS FOR ISSUANCE
1. existence of right sought to be protected
2. rights established are violative of such right
Is it necessary that dissolution of injunction be

verified? no, rules do not provide for the procedure,
it only provides that ther should be hearing
RULE 59
RECEIVERSHIP
it is an indifferent person bet parties to the case apptd by
the court to receive funds pendent lite if it is not
reasonable for the court that one of the party to receive
it
receiver- agent of the court
- officer of the court
who may appoint?
is appt of receiver an absoklute right? no. sound
discretopn of the court
when to appt a receiver? ___no other means that rights
be protected
order apptng a receiver is interlocutory hence not
appealable
EFFECT OF APPOINTMENT OF RECEIVER- places the prop under

hands of received, to be preserved fot the bene of the parties
and subj to control of court
APPOINTMENT creates no lien, no adv or preference to
parties, neither determine rights of parties
when the court appt a receiver?
1. appears fr verified app that the appt of receiver
app has interest in the prop and fund which is the
subj of the action
2. appears in an action by the Mortgagee that the
party will be matly injured
3. value is insuff to satisfy the judgment
4. after the judgment during pendency of appeal
5. dispose it after judgment
6. aid in exe when returned unsatisfied ( Rule 39) or
judgment obligor refuses to apply prop in
satisfaction of the judgment
GR: during litigation except in aid of execution
Section 1. Appointment of receiver. Upon a verified application,
one or more receivers of the property subject of the action or
proceeding may be appointed by the court where the action is
pending or by the Court of Appeals or by the Supreme Court, or a
member thereof, in the following cases:
(a) When it appears from the verified application, and
such other proof as the court may require, that the party
applying for the appointment of a 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 a 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 the execution has
been returned unsatisfied or the judgment obligor
refuses to apply his property in satisfaction of the
judgment, or otherwise to carry the judgment into effect;

33
(d) Whenever in other cases it appears that the

appointment of a receiver is the most convenient and
feasible means of preserving, administering, or disposing
of the property in litigation.
During the pendency of an 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. (1a)
Section 2. Bond on appointment of receiver. Before issuing the
order appointing a receiver the court shall require the applicant to
file a bond executed to the party against whom the application is
presented, in an amount to be fixed by the court, to the effect that
the applicant will 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; and
the court may, in its discretion, at any time after the appointment,
require an additional bond as further security for such damages.
(3a)
Section 3. Denial of application or discharge of receiver. The
application may be denied, or the receiver discharged, when the
adverse party files a bond executed to the applicant, in an amount
to be fixed by the court, to the effect that such party will pay the
applicant all damages he may suffer by reason of the acts,
omissions, or other matters specified in the application as ground
for such appointment. The receiver may also be discharged if it is
shown that his appointment was obtained without sufficient cause.
(4a)
Section 4. Oath and bond of receiver. Before entering upon his
duties, the receiver shall be sworn to perform them faithfully, and
shall file a bond, executed to such person and in such sum as the
court may direct, to the effect that he will faithfully discharge his
duties in the action or proceeding and obey the orders of the court.
(5a)
Section 5. Service of copies of bonds; effect of disapproval of same.
The person filing a bond in accordance with the provisions of this
Rule shall forthwith serve a copy thereof on each interested party,
who may except to its sufficiency or of the surety or sureties
thereon. If either the applicant's or the receiver's bond is found to
be insufficient in amount, or if the surety or sureties thereon fail to
justify, and a bond sufficient in amount with sufficient sureties
approved after justification is not filed forthwith, the application
shall be denied or the receiver discharged, as the case may be. If the
bond of the adverse party is found to be insufficient in amount or
the surety or sureties thereon fail to justify, and a bond sufficient in
amount with sufficient sureties approved after justification is not
filed forthwith, the receiver shall be appointed or re-appointed, as
the case may be. (6a)
Section 6. General powers of receiver. Subject to the control of
the court in which the action or proceeding is pending a receiver
shall have the power to bring and defend, in such capacity, actions
in his own name; to take and keep possession of the property in
controversy; to receive rents; to collect debts due to himself as
receiver or to the fund, property, estate, person, or corporation of
which he is the receiver; to compound for and compromise the
same; to make transfers; to pay outstanding debts; to divide the
money and other property that shall remain among the persons
legally entitled to receive the same; and generally to do such acts
respecting the property as the court may authorize. 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. (7a)
No action may be filed by or against a receiver without leave of the
court which appointed him. (n)
Section 7. Liability for refusal or neglect to deliver property to

receiver. A person who refuses or neglects, upon reasonable
demand, to deliver to the receiver all the property, money, books,
deeds, notes, bills, documents and papers within his power or
control, subject of or involved in the action or proceeding, or in case
of disagreement, as determined and ordered by the court, may be
punished for contempt and shall be liable to the receiver for the
money or the value of the property and other things so refused or
neglected to be surrendered, together with all damages that may
have been sustained by the party or parties entitled thereto as a
consequence of such refusal or neglect. (n)
Section 8. Termination of receivership; compensation of receiver.
Whenever the court, motu proprio or on motion of either party,
shall determine that the necessity for a receiver no longer exists, it
shall, after due notice to all interested parties and hearing, settle
the accounts of the receiver, direct the delivery of the funds and
other property in his possession to the person adjudged to be
entitled to receive them 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. (8a)
Section 9. Judgment to include recovery against sureties. The
amount, if any, to be awarded to any party upon any bond filed in
accordance with the provisions of this Rule, shall be claimed,
ascertained, and granted under the same procedure prescribed in
section 20 of Rule 57. (9a)
RULE 60
REPLEVIN
REMEDIES TO RECOVER RP
Reinvidicatoria (title +possession)
Accion Publiciana ( title not disputed)
Accion interdictal (ejectment)
REMEDIES TO RECOVER PERSONAL PROEPRTY
Replevin provisional remedy to have the delivery of personal
property of defendant
Section 1. Application. A party praying for the recovery of
possession of personal property may, at the commencement of the
action or at any time before answer, apply for an order for the
delivery of such property to him, in the manner hereinafter
provided. (1a) ( anong gawin mo if din a pwd before? attachment
ka)
REQS
i.
ii.
affidavit
bond
Section 2. Affidavit and bond. The applicant must show by his

own affidavit or that of some other person who personally knows
the facts:
(a) That the applicant is the owner of the property
claimed, particularly describing it, or is entitled to
the possession thereof;
ownership one of the char is to possess it. but
sometime you deliver it, lease, commodatum,
usufruct, deposit, pledge
(b) That the property is wrongfully detained by the
adverse party, alleging the 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 law, or seized
under a writ of execution or preliminary attachment, or

34
otherwise placed under custodia legis, or if so seized, that

it is exempt from such seizure or custody; and
(d) The actual market value of the property.
The applicant must also give a bond, executed to the adverse party
in double the value of the property as stated in the affidavit
aforementioned, for the return of the property to the adverse party
if such return be adjudged, and for the payment to the adverse
party of such sum as he may recover from the applicant in the
action. (2a)
Can it be issued ex parte? YES. Reason: baka maitakbo na
yung personal property.
SERVIVCEWIDE SPECIALIST
cs- Co cs
there is a chattel, you cannot to foreclose it unless you
have possession of it.( unlike in Real property- di
tumatakbo and lupa) as a prelim step to foreclose the
CM, kunin mo muna ang possession by replevin
hindi nag-appear si BA finance during pre-trial.
D filed motion to dismiss, it was dismissed. after 32 days,
D asked for hearing on the counterclaim
SC H:
1. shld not sought the dismissal of the cs bec of nonappearance but shld have been that the PFF be
declared non-suited then, ask for a hearing on the
counterclaim.
(dismissal of the main complaint carries for dismissal
of the counterclaim)
huli ka na- shld be filed before order becomes final
and exe
sec 2- pag nagfile ng complaint then answer was
served Pff can ask for dismissal of his complaint but
if the D manifest to the court w/in 15 days that he
wants his counterclaim be heard in the same case it
will be allowed
in a replevin suit, is the CMortgagor an indispensable
party? yes
BA FINANCE vs CA - bumili ng car with chattel mortgage; si
mortgagor-dr,binenta niya kay B then si B benta kay C. nakatatak
ung mortgage.nagfile ang BA actiom against mortgagor and C (one
in possession) C was served w/ summons, but di Makita si Aask for
dismissal bec A cannot be locatedSC- mortgagor is an indispensable
party in an action to Real Estate- pwd jud FC against the owner bec
he bought it subj to the
replevin- is a possessory action, an initial step to foreclose
the property
Escolin: usually magfile ka ng replevin ikaw na bumili g
car, you take possession, un na bale pambayad ng utang
sayo.
Recto Law
to circumvent- pakita sa contract na nagloan ka lang ng
money.
replevin mo to foreclose it, bulok na. pwd mo isoli?
SC- pwd
AGO vs CA may refuse to take personal prop seized under replevin
but _____
refuse acceptance when dilapidated condition
Section 3. Order. Upon the filing of such affidavit and approval of
the bond, the court shall issue an order and the corresponding writ
of replevin, describing the personal property alleged to be
wrongfully detained and requiring the sheriff forthwith to take such
property into his custody. (3a)
Section 4. Duty of the sheriff. Upon receiving such order, the
sheriff must serve a copy thereof on the adverse party, together
with a copy of the application, affidavit and bond, and must
forthwith take the property, if it be in the possession of the adverse

party, or his agent, and retain it in his custody. If the property or any
part thereof be concealed in a building or enclosure, the sheriff
must demand its delivery, and if it be not delivered, he must cause
the building or enclosure to be broken open and take the property
into his possession. After the sheriff has take possession of the
property as herein provided, he must keep it in a secure place and
shall be responsible for its delivery to the party entitled thereto
upon receiving his fees and necessary expenses for taking and
keeping the same. (4a)
REMEDIES AVAIL TO DEFENDANT
When sheriff gets possession of the property, tatago
muna nya w/in 5 days. Reason for 5 days: para
magkaroon objection
w/in 5 days and plaintiff not object, may require posting
counterbond
The applicant has choice to refuse if the property is
already laspag/worn out.
Section 5. Return of property. If the adverse party objects to the
sufficiency of the applicant's bond, or of the surety or sureties
thereon, he cannot immediately require the return of the property,
but if he does not so object, he may, at any time before the delivery
of the property to the applicant, require the return thereof, by filing
with the court where the action is pending a bond executed to the
applicant, in double the value of the property as stated in the
applicant's affidavit for the delivery thereof to the applicant, if such
delivery be adjudged, and for the payment of such sum, to him as
may be recovered against the adverse party, and by serving a copy
of such bond on the applicant. (5a)
Section 6. Disposition of property by sheriff. If within five (5) days
after the taking of the property by the sheriff, the adverse party
does not object to the sufficiency of the bond, or of the surety or
sureties thereon; or if the adverse party so objects and the court
affirms its approval of the applicant's bond or approves a new bond,
or if the adverse party requires the return of the property but his
bond is objected to and found insufficient and he does not forthwith
file an approved bond, the property shall be delivered to the
applicant. If for any reason the property is not delivered to the
applicant, the sheriff must return it to the adverse party. (6a)
Section 7. Proceedings where property claimed by third person. If
the property taken is claimed by any person other than the party
against whom the writ of replevin had been issued or his agent, and
such person makes an affidavit of his title thereto, or right to the
possession thereof, stating the grounds therefor, and serves such
affidavit upon the sheriff while the latter has possession of the
property and a copy thereof upon the applicant, the sheriff shall not
be bound to keep the property under replevin or deliver it to the
applicant unless the applicant or his agent, on demand of said
sheriff, shall file a bond approved by the court to indemnify the
third-party claimant in a sum not less than the value of the property
under replevin as provided in section 2 hereof. In case of
disagreement as to such value, the court shall determine the same.
No claim for damages for the taking or keeping, of the property may
be enforced against the bond unless the action therefor is filed
within one hundred twenty (120) days from the date of the filing of
the bond.
The sheriff shall not be liable for damages, for the taking or keeping
of such property, to any such third-party claimant if such bond shall
be filed. Nothing herein contained shall prevent such claimant or
any third person from vindicating his claim to the property, or
prevent the applicant from claiming damages against a third-party
claimant who filed a frivolous or plainly spurious claim, in the same
or a separate action.

35
When the writ of replevin is issued in favor of the Republic of the

Philippines, or any officer duly representing it, the filing of such
bond shall not be required, and in case the sheriff is sued for
damages as a result of the replevin, he shall be represented by the
Solicitor General, and if held liable therefor, the actual damages
adjudged by the court shall be paid by the National Treasurer out of
the funds to be appropriated for the purpose. (7a)
Section 8. Return of papers. The sheriff must file the order, with
his proceedings indorsed, thereon, with the court within ten (10)
days after taking the property mentioned therein. (8a)
Section 9. Judgment. After trial of the issues the court shall
determine who has the right of possession to and the value of the
property and shall render judgment in the alternative for the
delivery thereof to the party entitled to the same, or for its value in
case delivery cannot be made, and also for such damages as either
party may prove, with costs. (9a)
the main action shld be replevined
Section 10. Judgment to include recovery against sureties. The
amount, if any, to be awarded to any party upon any bond filed in
accordance with the provisions of this Rule, shall be claimed,
ascertained, and granted under the same procedure as prescribed
in section 20 of Rule 57. (10a)
Whether bond or Counterbonf Sec 20 of R 57
Can there be 3p claim? Yes. Parehas dun sa receivership,
attachment. Effect= the sheriff cannot
MACHINERIES ENG SUPPLIES vs CA machineries re RP hence not
subject of replevin
BACHRACH vs MOTORS 0 right of possession,
KASSE vs HUGO reqt of putting up a bond and furnishing a copy
thereof are mandatory requirements. Int his cas,e theres
substantial compliance re furnishing copy of counterbond where
plitniffs counsel was informed by the sheriff of filing of
counterbond
of the applicant and the resources or means of the adverse party,

and the terms of payment or mode for providing the support. If the
application is denied, the principal case shall be tried and decided as
early as possible. (5a)
Section 5. 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; issue an order of execution against
him, without prejudice to his liability for contempt. (6a)
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 obtain
a writ of execution to enforce his right of reimbursement against
the person ordered to provide such support. (h)
Section 6. Support in criminal cases. In criminal actions where the
civil liability includes support for the offspring as a consequence of
the crime and the civil aspect thereof has not been waived, reserved
and instituted prior to its filing, 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 therefor may
be filed successively by the offended party, her parents,
grandparents or guardian and the State in the corresponding
criminal case during its pendency, in accordance with the procedure
established under this Rule. (n)
Section 7. 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, it shall order the recipient
thereof to return to the former the amounts already paid with legal
interest from the dates of actual payment, without prejudice to the
right of the recipient to obtain reimbursement in a separate action
from the person legally obliged to give the support. Should the
recipient fail to reimburse said amounts, the person who provided
the same may likewise seek reimbursement thereof in a separate
action from the person legally obliged to give such support. (n)
CAN YOU REFUSE ? plaintiff has right to refuse even

after asking replevin he finds the property in
dilapidated condition. Alternative yung choices nya.
DELIVER BALIK BAYAD ULI
RULE 61
SUPPORT PENDENTE LITE
Section 1. Application. At the commencement of the proper
action or proceeding, or at any time prior to the judgment or final
order, a verified application for support pendente lite may be filed
by any party stating the grounds for the claim and the financial
conditions of both parties, and accompanied by affidavits,
depositions or other authentic documents in support thereof. (1a)
Section 2. Comment. A copy of the application and all supporting
documents shall be served upon the adverse party, who shall have
five (5) days to comment thereon unless a different period is fixed
by the court upon his motion. The comment shall be verified and
shall be accompanied by affidavits, depositions or other authentic
documents in support thereof. (2a, 3a)
Section 3. Hearing. After the comment is filed, or after the
expiration of the period for its filing, the application shall be set for
hearing not more than three (3) days thereafter. The facts in issue
shall be proved in the same manner as is provided for evidence on
motions. (4a)
Section 4. Order. The court shall determine provisionally the
pertinent facts, and shall render such orders as justice and equity
may require, having the regard to the probable outcome of the case
and such other circumstances as may aid in the proper resolution of
the question involved. If the application is granted, the court shall fix
the amount of money to be provisionally paid or such other forms of
support as should be provided, taking into account the necessities

36

Civpro Lecture Rule 19-50

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Civpro Lecture Rule 19-50

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theres manifrstation of preference to have his

counterclaim in the action.

N.B Read at your own risk. May contain grammatical,

when a complaint be dismissed?

Sec. 4. Dismissal of counterclaim, cross-claim, or third-party

If there is none, its either walang sagot or sometimes in

Under OLD RULES: both party and cunsel

Sec. 4. Appearance of parties.

3)to comply with these Rules or any order of the court

XPNS: where a party is represented by atty-in-fact, he must be

Usually in coprotion, even the power to make

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for ex parte its like asking the party in default (ask in

EFFECT if plaintiff fails to appear:

If you tried issues beyond stated in pre-trial, you object. If

EFFECT if plaintiff fails to appear:

The non-appearance of a party may be excused only :

if a valid cause is shown therefor ( may sakit) or

A statement of their willingness to enter into

(c) The issues to be tried or resolved;

proceeding in a suit or action where 3 rd person is

WHO MAY INTERVENE

A person who has a legal interest in the matter in

or an interest in the success of either of the parties,

an interest against both, or

is so situated as to be adversely affected by a

- kaya dun pa lang sa pre-trial may marking na

pwd ka rin ma- as in default if D, dismissed if P

in pre-trial brief, be careful and explicitly limit your issues;

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with leave of court, be allowed to intervene in the

Once intevrnetion is granted by the court, the intervenor is now

In order for the intervenor to be allowed, he must be a

Sec. 2. Time to intervene.

GR: cannot intervene while on appeal (Reason: might raise matters

YES. An inteevention is a mere,collateral and ancillary to

MEtrobank sued BPI Consortium for replevin over the

The intervenor shall file a :

complaint-in-intervention if he asserts a claim

The interest of intevenor must be material and

Sec. 4. Answer to complaint-in-intervention.

HEIRS OF OROSA vs MIGIRON

shld a complaint in intervention be answered?

GR: Intervention is ancillary to the main case (ORDONEZ vs GUSTILO)

Plaintiff filed an action to enforce a reclamation contract

The claim of Goldenrod basis: in a seprate case, delta

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material, direct and immediate. A party seeking to

uAlthogh seller warrants the buyer shall have

to clerk of court, write a formal letter

Sec. 3. Form and contents.

Subpoena Testificandum required to attend in or for

TWO REQS FOR EVIDENCE BE ADMISIBLE

Sec. 2. By whom issued.

For i.e sub poena duces tecum in books of

The subpoena may be issued by:

the court before whom the witness is required to attend;

the officer or body authorized by law to do so in

Senate and certain laws that give power---NBI,

any Justice of the Supreme Court or of the Court of

When application for a subpoena to a prisoner

Evidence is relevant when it has a

The court may quash a subpoena ad testificandum on the ground

When witness not bound for Subpoena?Sec 10