Professional Documents
Culture Documents
fixing the jurisdictional amount, but must be specifically alleged and filing
fees paid thereon
2.2.b
There is a shipment of goods from HK
to Manila. The shipment was short. Consignee sued in Manila, carrier
moved to dismiss for lack of jurisdiction since the Bill of Lading provided
that in case of dispute, suit must be brought in HK. Motion will not prosper
as jurisdiction is conferred by law and cannot be stipulated by the parties.
DISTINCTIONS BETWEEN THE NATURE OF JURISDICTION EXERCISED BY THE
COURTS
1. AS TO THE NATURE OF THE EXERCISE OF JURISDICTION it is General,
meaning it is exercised over all kinds of cases or Limited, meaning it
exercised over and extends only to a particular or specified cases
2. AS TO THE NATURE OF THE CAUSE OR THE ACTION it is Original,
meaning it is exercised by courts in the first instance or Appellate,
meaning it is exercised by a superior court to review and decide a cause
or action previously decided by a lower court.
3. AS TO THE EXTENT OF THE EXERCISE OF JURISIDICTION it is
Exclusive, meaning it is confined to a particular court or CONCURRENT,
meaning two or more courts have jurisdiction at the same time and place.
In this instance, the court which has first validly acquired jurisdiction takes
it to the exclusion of the others. NOTE THOUGH the DOCTRINE OF
HIERARCHY OF COURTS which requires litigants to initially seek proper
relief from the lower courts in those cases where the Supreme Court has
concurrent jurisdiction with the Court of Appeals and the Regional Trial
Court to issue the extraordinary writs of certiorari, prohibition or
mandamus. The Supreme Court is a court of last resort and its jurisdiction
to issue extra-ordinary writs should be exercised only when absolutely
necessary, or where serious and important reasons therefor exist. See
Pearson v. IAC, 295 SCRA 27. Also, concurrence of jurisdiction does not
grant any party seeking any of the extra-ordinary writs the absolute
freedom to file the petition with the court of his choice. See: Ouano vs.
PGTT International Investment Corporation, 384 SCRA 587
CLAIM
TO
DETERMINE
2.1 Foreclosure of chattel to collect 100K but actual value is 500K MTC
RULE: Jurisdiction is determined by the amount claimed by the plaintiff.
2.2 Action for removal of improvements with prayer for 10,000 for
attorneys fees RTC incapable of pecuniary estimation.
2.3 Action to collect sum of money within jurisdiction of the MTC but with
accessory prayer for damages beyond MTC jurisdiction MTC - if action is
personal, damages are to be excluded (Adm Circ. 09-94 June 14, 1994)
for determining jurisdiction but payment is still to be collected Damages,
Interest, Attorneys fees and Litigation costs.
BUT if action is for damages over 400K RTC because it is the main
cause of action or one of the causes of action.
3. IF DOCKET FEES ARE INCORRECT The trial court should allow the
plaintiff to pay within a reasonable period of time before the expiration of
the applicable prescriptive or reglamentary period EFFECT defendant
must move to dismiss the complaint on the ground of lack of jurisdiction
if not he may be considered to be in estoppel. See NSC v. CA GR 123215,
Feb 2, 1999)
4. DOCKET FEES FOR MAIN/REAL ACTION PAID BUT THOSE FOR RELATED
DAMAGES ARE NOT PAID Trial court may expunge the claims or allow on
motion, a reasonable time for amendment of the complaint or accept
payment of the requisite legal fees.
5. IF CLAIMS ARE UNSPECIFIED BUT ARISE AFTER FILING The required
additional fee shall constitute a lien on the judgment
The MTCs are the first-level trial courts in this country. They have
therefore no appellate jurisdiction and all their jurisdiction is exclusive and
encompasses the following cases: (1) all civil actions and probate
proceedings, testate and intestate, including the grant of provisional
remedies in proper cases, where the value of the personal property, estate,
or amount of the demand does not exceed Two hundred thousand pesos
(P200,000.00) or, in Metro Manila where such personal property, estate, or
amount of the demand does not exceed Four hundred thousand pesos
(P400,000.00), exclusive of interest, damages of whatever kind, attorneys
fees, litigation expenses, and costs, the amount of which must be
specifically alleged: Provided, That where there are several claims or
causes of actions between the same or different parties, embodied in the
same complaint, the amount of the demand shall be the totality of the
claims in all the causes of action irrespective of whether the causes of
action arose out of the same or different transactions; (2) cases of forcible
entry and unlawful detainer: Provided, That when, in such cases, the
defendant raises the question of ownership in his pleadings and the
question of possession cannot be resolved without deciding the issue of
ownership, the issue of ownership shall be resolved only to determine the
issue of possession; and (3) all civil actions which involve title to, or
possession of, real property or any interest therein where the assessed
value of the property or interest therein does not exceed Two hundred
thousand pesos (P200,000.00) or, in civil actions in Metro Manila, where
such assessed value does not exceed Four hundred thousand pesos
(P400,000.00) exclusive of interest, damages of whatever kind, attorneys
fees, litigation expenses and costs.
The MTCs may however be assigned by the Supreme Court to hear and
determine certain cadastral cases and petitions for habeas corpus.
RULE I
GENERAL PROVISIONS
The Rules shall be known and cited as the Rules of Court. 1 They shall apply
in all courts, except as otherwise provided by the Supreme Court 2 in civil,
criminal and special proceedings.3They do not apply to election cases, land
registration, cadastral, naturalization and insolvency, and other cases not
1.1.d
QUASI IN REM names a person as a
defendant but its object is to subject the persons interest in property to a
corresponding lien or obligation (Ramos vs. Ramos, 399 SCRA 43)
1.2 Distinguishing it from other kinds of actions:
1.2.a
CRIMINAL - one by which the state
prosecutes a person for an act or omission punishable by law.
1.2.b
SPECIAL PROCEEDING remedy by
which a party seeks to establish a status, right or a particular fact.
1.3
DISTINCTIONS BETWEEN A CIVIL ACTION AND SPECIAL PROCEEDINGS
CIVIL ACTION
Adversarial-between plaintiff and
and defendant
4 Supra,,Section 4, Rule 1
10
and not on technicalities. It does not mean, however, that procedural rules
are to be ignored or disdained at will to suit the convenience of a party. 9
2.Liberal construction of the rules should be made by the courts in cases:
(1) a rigid application will result in manifest failure or miscarriage of
justice, especially if a party successfully shows that the alleged defect in
the questioned final and executory judgment is not apparent on its face or
from the recitals contained therein (2) where the interest of substantial
justice will be served (3) where the resolution of the motion is addressed
solely to the sound and judicious discretion of the court (4) where justice to
the adverse party is not commensurate with the degree of this
thoughtlessness in not complying with the procedure prescribed. 10
3.Note that in doing so, substantial justice and equity considerations must
not be sacrificed. Periods for filing are as a matter of practice, strictly
construed. Neither can liberality of the rules be invoked if it will result in
the wanton disregard of the rules or cause needless delay in the
administration of justice.11
4.Concommitant to a liberal application of the rules of procedure should be
an effort on the part of the party invoking liberality to adequately explain
his failure to abide by the rules.12
5.The rules and procedure laid down for the trial court and the adjudication
of cases are matters of public policy. They are matters of public order or
interest which can in no wise be changed or regulated by agreements
between or stipulations by parties to an action for their singular
convenience.13 (Republic vs. Hernandez, 253 SCRA 509)
6.The Supreme Court has the power to suspend or set aside its rules in the
higher interest of justice.14
RULE 2
CAUSE OF ACTION
one injury results from several wrongful acts, only one cause of action
arises. Example: A party who is injured could not maintain an action for
damages based on a breach of the contract of carriage against the owner
of the vehicle in which he was riding and another action for quasi-delict
against the driver/owner of the offending vehicle. The recovery under one
remedy necessarily should bar recovery under another. This, in essence, is
the rationale for the proscription in our law againt double recovery for the
same act or omission which, obviously stems from the fundamental rule
against unjust enrichment.21
2.2In an action EX CONTRACTU, the rules are as follows:
2.2.a
In a single or indivisible contract, only
one cause of action arises from a single or several breaches. Example: In a
contract of sale of personal property by installments, the remedies of the
unpaid seller is alternative, they are: (1) elect fulfillment (2) cancel the
sale, should the vendees failure to pay cover two or more installments,
and (3) foreclose the mortgage on the thing sold if one has been
constituted should the vendee fail to pay two or more installments. 22
2.2.bIf the contract provides for several obligations, each obligation not
performed gives rise to a single cause of action. But if upon filing of the
complaint several obligations have already matured, all of them shall be
integrated into a single cause of action. Example: Contract for delivery of
goods in part or over a period.
2.2.c
If the contract is divisible in its
performance, and the future performance is not yet due, but the obligor
has already manifested his refusal to comply, the contract is entire and the
breach is total. Thus, there can only be one action. 23
IF A PARTY HAS SEVERAL CAUSES OF ACTION
He can join his causes of action24 as he may in one pleading assert, in the
alternative or otherwise, as many causes of action as he may have against
the opposing party, subject to the following conditions:
1.party joining the causes of action shall comply with the rule on joinder of
parties, which provides that : All persons in whom or against whom any
right to relief is respect to or arising out of the same transaction is alleged
to exist, whether jointly, severally or in the alternative, may except as
otherwise provided in these rules, join as plaintiffs or be joined as
defendants in one complaint, where any question of law or fact common to
all such plaintiffs or to all such defendants may arise in the action. 25
2.joinder does not allow the inclusion of special civil actions or actions
governed by special rules . Example: An action for a sum of money cannot
be joined with an action for iIlegal detainer
3. where causes of action are between same parties but pertain to
different venues or jurisdictions, joinder may be allowed in the RTC
provided one of the causes of action falls within its jurisdiction and venue
lies therein.
4. when the claims in all causes of action are principally for recovery of
money, the aggregate amount shall be the test of jurisdiction.
EFFECT OF MISJOINDER
Upon motion of a party or on the initiative of the court, a misjoined cause
of action may be severed and proceeded with separately. 26
RULE 3
PARTIES TO CIVIL ACTIONS
WHO MAY BE PARTIES TO A CIVIL ACTION
Only natural or juridical persons or entitles authorized by law may be
parties in a civil action.27 They are called: PLAINTIFF he is one who has
interest in the subject of the action and obtaining the relied demanded. He
may be the claimant in the original complaint, the counter-claimant in the
counter claim, or cross-claimant in a cross-claim or the third party plaintiff
and the DEFENDANT he is one who has an interest in the controversy
25 Supra, Section 6, Rule 3
26 Supra, Section 6, Rule 2
27 Supra,,Section 1, Rule 3
15
without whom no relief is available and without whom the court can render
no valid judgment.38
1.1Without the presence of indispensable parties to the suit, the judgment
of the court cannot attain real finality. 39
2. NECESSARY PARTY is a party who is not indispensable but who ought to
be joined as a party if complete relief is to be accorded as to those already
parties or for a complete determination or settlement of the claim subject
of the action.40 A necessary partys presence is necessary to adjudicate the
whole controversy but whose interests are so far separable that a final
decree can be made in their absence without affecting them. Example: If
the plaintiff only sues a one of his joint debtors, the joint debtor who is not
sued is merely a necessary party. As a consequence, the plaintiff only
recovers the share of the debt due from the joint debtor defendant.
2.2A necessary party is to be impleaded as a party for complete
determination of an action, while an indispensable party is impleaded for a
final determination of an action.
PERSONS WHO CAN SUE IN BEHALF OF A REAL PARTY IN INTEREST
The following may sue in behalf of a real party in interest
1. REPRESENTATIVES- actions are allowed to be prosecuted / defended by
a representative or by one acting in a fiduciary capacity BUT the
BENEFICIARY SHALL BE INCLUDED IN THE TITLE and shall be deemed to be
the REAL PARTY IN INTEREST.41
1.1Examples of representatives are: (1) trustee of an express trust (2) a
guardian, executor or administrator, or (3) a party authorized by law or the
Rules.
1.2 An agent acting in his own name and for the benefit of an unknown
principal may sue or be sued without joining the principal except when the
contract involves things belonging to the principal. This refers to an
AGENCY WITH AN UNDISCLOSED PRINCIPAL.42
38 Valenzuela v Court of Appeals, 363 SCRA 779
39 Domingo v Scheer, 421 SCRA 468
40 Supra, Section 8, Rule 3
41 Supra, Section 3, Rule 3
42 Article 1883, NCC
18
JOINDER OF PARTIES
Joinder of Parties refers to the act of uniting several parties in a single suit
either as plaintiffs or defendants.
1.The rule on joinder of parties states that: All persons in whom or against
whom any right to relief in respect to or arising out of the same transaction
is alleged to exist, whether jointly, severally or in the alternative, may
except as otherwise provided in these rules, join as plaintiffs or be joined
as defendants in one complaint, where any question of law or fact common
to all such plaintiffs or to all such defendants may arise in the action. 54
2.Joinder of Parties, as a rule, is permissive when there is a question of law
or fact common to all the plaintiffs or defendants. This means that the
right to relief or to resist the action arises out of the same transaction or
event or series of transactions or events. Example: action by passengers of
a common carrier for injuries sustained in an accident, there is no
community of interest, the extent of the interest is limited to the extent of
damages being claimed by each.
3. It becomes compulsory when the parties to be joined are indispensable
parties.55
4.The exception to compulsory joinder of parties is when the subject of the
action is proper for a class suit. The subject matter of the controversy is
proper for a class suit when it is one of common or general interest to
many persons so numerous that it is impractical to join all as parties. 56 All
the parties who are interested in the action as plaintiffs or defendants are
all indispensable parties but not all need to be joined.
4.1The requisites of a class suit are:
1. The subject matter of the controversy is one of common or general
interest to many persons. There must be an INDIVISIBLE RIGHT AFFECTING
MANY INDIVIDUALS WHOSE PARTICULAR INTEREST IS OF INDETERMINATE
EXTENT AND IS INCAPABLE OF SEPARATION. This requires that the benefit
to one is a benefit to all. Examples: stockholder derivative suits and
taxpayer suits.
54 Supra, Section 6, Rule 3
55 Supra, Section 7, Rule 3
56 Supra, Section 12, Rule 3
20
4.2 It can be brought by the plaintiffs as a class or may be filed against the
defendants as a class
4.3 Any party in interest shall have the right to intervene to protect his
individual interest.
4.4 The general rule, is that the party bringing the suit in his own name
and that of others similarly situated has the right to control the suit, BUT, it
shall not be dismissed or compromised without the approval of the court. 58
5.If there is a failure to join an indispensable party, the court must order
the plaintiff to amend his complaint for the purpose of impleading the
indispensable party. If the plaintiff fails, refuses or the party cannot be
sued because he is a non-resident defendant in a personal action, the
complaint must be dismissed.59
6.If there is a failure to join a necessary party, the pleader in the pleading
in which a claim is asserted without joining a necessary party shall (1) set
forth the name of the necessary party, if known and (2) state the reason
for omission. If the court finds the reason for the omission is not
meritorious, it may order the inclusion of the omitted necessary party if
jurisdiction over his person is obtained.
57 Cadalin v POEA Administrator, 238 SCRA 721
58 Supra, Section 2, Rule 17
59 NDC v Court of Appeals, 211 SCRA 422
21
If pleader fails to comply with order for inclusion without justifiable cause,
it shall be deemed a waiver of the claim against the party, BUT the noninclusion does not prevent the court from proceeding in the action, and the
judgment therein shall be without prejudice to rights of such necessary
party.60
7.MISJOINDER OR NON JOINDER NOT A GROUND FOR DISMISSAL.Parties
may be dropped or added by order of the court on motion of any party or
on its own initiative at any stage of the action and on such terms that are
just. Any claim against a misjoined party may be severed and proceeded
against separately.61
NOTE HOWEVER that if the party to be joined is indispensable and the
plaintiff fails or refuses or such party cannot be sued the complaint must
be dismissed (NDC v. CA 211 S 422)
8.IF A PARTY TO BE JOINED AS A PLAINTIFF DOES NOT CONSENT OR
CANNOT BE OBTAINED he may be made a defendant and the reason
therefor shall be stated in the complaint. 62
DISTINCTIONS BETWEEN
Indispensable party
Necessary party
EXAMPLE: An action where the owner of goods is not sure whether they
were lost in transit or while it was on deposit in the warehouse of the
arrastre operator He may sue the shipper or the operator of the
warehouse in the ALTERNATIVE although the right against the SHIPPER is
based on ADMIRALITY, while that against the OPERATOR is based on
CONTRACT. Action for damages arising from loss of goods due to a
collision.
IF THE IDENTITY/NAME OF THE DEFENDANT IS UNKNOWN
He may be sued as the unknown owner, heir, devisee or by such other
designation as the case may require WHEN THE IDENTITY OR NAME IS
DISCOVERED the pleading must be amended accordingly. 64 EXAMPLE:
Action to recover real property from several unknown heirs of a common
ancestor.
fees. The plaintiff contends on appeal that the counterclaim should have
been dismissed pursuant to Rule 3, Section 21 (old rule). HELD: The
argument is misplaced, defendant was the plaintiff in his counterclaim, the
rule is not applicable as it pertains to a defendant who dies before final
judgment. In this case, it is the plaintiff who died and all that is required is
a timely motion for substitution. No recovery though can be allowed as no
evidence was adduced.67
4.If a claim involves a conjugal debt that was not brought and one of the
spouses die before filing, the claim must be brought in the testate or
intestate proceedings of the deceased spouse. 68 ( Alipio v. CA, GR. 134100,
9-29-2000)
5.IF IT IS THE PLAINTIFF WHO DIES: (a) if action is purely personal to him,
the action is abated (b) if action is not purely personal, it continues but
counsel must give notice of death.
4.In a case on appeal where the transferee pendente lite did not appeal, he
nevertheless was benefited by the appeal of the transferor pendent elite. 72
INDIGENT/PAUPER LITIGANT
1.An indigent or pauper litigant Is one who litigates on a claim that he has
no money, or property sufficient and available for food, shelter and basic
necessities for himself and his family. 73
2.An indigent or pauper litigant must file an ex-parte application for
authority to litigate as an indigent that is too be resolved by the court after
hearing. Attached to the motion is an affidavit attesting to the fact that he
does not earn a gross income of PHP 4000.00 in Metro-Manila, or PHP
3,000.00 elesewhere and has no real property with a fair market value of
PHP 50,000.00. Said affidavit must be supported by another affidavit of a
disinterested person. Note that recently, an indigent litigant has been
defined as one (a) whose gross income and that of their immediate family
does not exceed an amount double the monthly minimum wage of an
employee and (b) who does not own real property with a fair market value
as stated in the current tax declaration of more than PHP 300,000.00. If
there is any falsity in the affidavit or that of the disinterested person, it
shall constitute sufficient ground to dismiss the action or strike out the
pleading, without prejudice to whatever criminal liability is incurred. 74
3.The effect of being allowed to litigate as an indigent or pauper litigant
are: (1) exemption from the payment of docket fees and other lawful fees
(2) exemption from TSN fees which the Court may order to be furnished
BUT, the amounts due shall be a LIEN on a favorable judgment unless the
Court orders otherwise.
4. The allowance to litigate as an indigent or pauper litigant can be
contested at any time before judgment is rendered by any adverse party. If
found to be meritorious, the proper fees are assessed and are to be
collected. IF NOT PAID, execution shall issue on the payment thereof
without prejudice to other sanctions.
5. On appeal, a motion to litigate as an indigent or pauper litigant is
allowed.
WHEN SOLICITOR GENERAL IS REQUIRED TO APPEAR
72 Jocson v Court of Appeals, GR 88297, March 22, 1990
73 Supra, Section 21
74 Section 19, Rule 141, Rules of Court
26
In any action involving the validity of any treaty, law, ordinance, executive
order, presidential decree, rule or regulation, the court, in its discretion,
may require the appearance of the SOLGEN, who may be heard in person
or through a representative duly designated by him. 75
RULE 4 VENUE OF ACTIONS
1.Venue is the place where the action is to be commenced and tried. It has
also been defined as the proper location for the trial of a case.
2. Distinguishing it from jurisidiction: (a) venue is the place where action
is commenced and tried, jurisdiction is the authority of a court to hear
and decide the action (b) venue may be waived, jurisdiction over the
subject matter cannot be waived, but that over the person can be waived
(c) venue may be the subject of a written agreement, jurisdiction cannot
be subject of a written agreement (d) a court cannot motu-propio
dismiss on improper venue, while when there is no jurisdiction, a court can
motu-propio dismiss the action.
3. The following are the rules on venue:
3.1 IF IT IS A REAL ACTION or one that affects title to or possession of real
property, or interest therein, it shall be commenced and tried in the proper
court which has jurisdiction over the area wherein the real property
involved or a portion thereof is situated. Forcible Entry and Detainer
actions are to be commenced and tried in the Municipal Trial Court which
has jurisdiction over the area wherein the real property involved, or any
portion thereof, is situated.76
2.IF IT IS A PERSONAL ACTION or one that is brought for the recovery of
personal property, for the enforcement of a contract or recovery of
damages for its breach of for the recovery of damages due to injury to
person or property or such all other actions shall be commenced or tried
where the plaintiff or ANY OF THE PRINCIPAL PLAINTIFFS reside or any of
the defendants reside, or if a NON-RESIDENT DEFENDANT, where he may
be FOUND at the election of the plaintiff77
75 Supra, Section 22, Rule 3
76 Supra, Section 1, Rule 4
77 Supra, Section 2, Rule 4
27
PERMISSIVE
1. does not arise out of or is not connected
with the transaction or occurrence constituting the subject matter of the opposing
partys claim
2. not barred even if not set up in the
99 Supra, Section 6, Rule 16
100 Supra, Section 6, Rule 6
32
answer
3. plaintiff must answer once docket fees are
paid
4. if not answered default lies
5. being an initiatory pleading it requires a
certification as to non-forum shopping
3.2 The REQUISITES OF A COMPULSORY COUNTER-CLAIM are:(a) It arises
out of or is necessarily connected w/the transaction or occurrence that in
the subject matter of the partys claim (b)It does not require for
adjudication the presence of 3rd parties over whom the court cannot
acquire transaction (c) It must be cognizable by the regular courts of
justice (d) It must be within the jurisdiction of the court both as to amount
and the nature thereof, except that in an original action before the RTC,
counterclaim is considered compulsory regardless of amount (e)
It
must already be existing at the time defending party files his answer (Rule
6, Sec. 7, Rule 11, Sec. 8)
See Reyes De leon v Del Rosario, 435 SCRA 232, test to determine whether
counterclaim is compulsory or not.
3.2.1
A compulsory counterclaim that is not
yet in existence at the time of the filing of an answer may be presented or
set-up by a supplemental pleading before judgment. 101
3.2.2A compulsory counterclaim may implead persons not parties to the
original complaint as their presence is required for granting complete relief
in the determination of a counter-claim or cross claim, the court shall order
them brought in as defendants, if jurisdiction over them can be obtained. 102
Summons must thus be served upon them as they must answer the
counterclaim as they cannot rely on the rule that the defendant in the
counterclaim is deemed to have adopted the allegations of the complaint
in his answer.103
3.3The REQUISITES OF A PERMISSIVE COUNTERCLAIM are: (a) It does not
require for adjudication the presence of 3 rd parties over whom the court
101 Supra, Section 9, Rule 11, Intramuros Administration v Contacto, 402 SCRA 581
102 Supra, Section 12, Rule 6
103 Lafarge Cement Philippines, Inc. v Luzon Continental Land Corporation, 443 SCRA 522
33
1. CAPTION it sets forth the (a) NAME OF THE COURT (b) THE TITLE OF
THE ACTION- this includes an indication of the NAME of the PARTIES, who
are REQUIRED to be NAMED in the ORIGINAL COMPLAINT OR PETITION. In
subsequent pleadings, the name of the first party on each side is sufficient
with an appropriate indication when there are other parties. NOTE: In an
appeal, Sections 5 and 6, Rule 41 requires all names to be indicated in the
NOTICE OF APPEAL and RECORD ON APPEAL (c) DOCKET NUMBER , if one
has already been assigned.109
2.BODY - sets forth its designation, the allegations or a partys claims /
defenses, the relief prayed for, and the date of the pleading
2.1 The allegations in the body shall be divided unto paragraphs so
NUMBERED to be readily IDENTIFIED. Each shall contain STATEMENT OF A
SINGLE SET OF CIRCUMSTANCES so far as it can be done with convenience.
A paragraph may be referred to by its number in all succeeding pleadings.
2.2 Headings must be used when 2 or more causes of action are joined,
the statement of the first shall be prefaced by : FIRST CAUSE OF ACTION
etc. WHEN: 2 or more paragraphs are addressed to one or several causes
of action in the complaint, they shall be prefaced by: ANSWER TO THE
FIRST CAUSE OF ACTION and so on. If it addresses several causes of
action, the paragraphs shall be prefaced accordingly.
2.3 Relief should be specified but it may add a general prayer for such
further or other relief as may be deemed just and equitable.
2.4 Date every pleading is required to be dated.
3. SIGNATURE AND ADDRESS- every pleading must be signed by the
party OR counsel representing him, stating in either case his ADDRESS
which should not be a post office box.
3.1 NOTE the word OR because a party may litigate / defend PRO SE or for
himself without aid or counsel. This applies even if a party is already
represented by counsel.
3.2 AN ADDRESS IS REQUIRED for service of pleadings or judgments
3.3 SIGNIFICANCE OF COUNSELS SIGNATURE it is a CERTIFICATE BY HIM
THAT: (a)
He has read the pleading (b)To the best
109 Supra, Section 1, Rule 7
36
5.3.1It also occurs when a party attempts to have his action tried in a
particular court or jurisdiction where he feels he will receive the most
favorable judgment.
5.3.2
It has been said to exist also where the
elements of litis pendentia are present or where a final judgment in one
case will amount to res judicata in another. Hence, the following requisites
concur: (a) identity of parties, or at least such parties represent the same
interests in both actions (b)
identity of rights asserted and relief
prayed for, the relief being founded on the same facts, and (c) identity of
the two preceding particulars is such that any judgment rendered in the
other action will, regardless, of which party is successful, amount to res
judicata in the action under consideration. 126
5.4The purpose of the certification against forum shopping is to prohibit
and penalize the evils of forum shopping. 127 Forum Shopping is a
deplorable practice because it results in unnecessarily clogging of the
already heavily burdened docket of the courts. 128
5.5The execution of the certification is required to be accomplished by the
petitioner himself as it is the petitioner himself who has actual knowledge
of whether or not he has initiated similar actions or proceedings in
different courts or agencies.
5.5.1
If there are several plaintiffs, the
general rule is that all of them must sign BUT IT MUST BE NOTED that
there is jurisprudence to the effect that: (1) the execution by one of the
petitioners or plaintiffs in a case constitutes substantial compliance where
all the petitioners, being relatives and co-owners of the properties in
dispute, share a common interest in the subject matter of the case. 129 (2)
the case is filed as a collective raising only one cause of action or
defense130 (3) the signing by 1 spouse substantially complies as they have
a common interest in the property131 or is signed by husband alone is
substantial compliance as subject of case is recovery of conjugal
property132 (4) 2 of the parties did not sign as they were abroad. It was
126 TADI v Solilapsi, 394 SCRA 269
127 BA Savings Bank v Sia, 336 SCRA 484
128 Ruiz v Drilon, 209 SCRA 695
129 Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy v Guadalquiver, 429 SCRA 722
130 HCC Construction and Development Corporation v Emily Homes Subdivision Homeowners Association,
411 SCRA 504
131 Dar v Alonso Legasto, 339 SCRA 306
132 Docena v Lapesura, 355 SCRA 658
39
prejudice to the refilling of the case. (Roxas v. CA, G.R. No. 139337, Aug.
15, 2001.)
To be included as 4th paragraph of the answer in Q&A No. 13; p. 62:
Also, a case pending before the Ombudsman cannot be considered for
purposes of determining forum shopping as the power of the Ombudsman
is only investigative in character and its resolution cannot constitute a
valid and final judgment because its duty is to file the appropriate case
before the Sandiganbayan. (Sevilla v. Laggui, A.M. No. RTJ-01-1612, Aug.
14, 2001.)
CAN THE CERTIFICATION BE FILED LATERGeneral Rule NO Note Uy v. Land Bank GR 136100 July 24, 2000REINSTATEMENT OF THE CASE AFTER MOTION TO ADMIT CERTIFICATION
BUT: Loyola v. CA 245 S 477 one day after, Roadway Express v. CA 264 S
696 14 days before the CA dismissed Petition for Review.
Shipside v. Ca GR 143377, Feb 20, 2001 motion for reconsideration
showing authority of petitioner to execute certification prior to filing.
REASON special or compelling reasons justified relaxation of the Rule IN
Shipside merits of case justified deviation.
or
does
not
have
the
character
or
If there is failure to plead within the time allowed, the defendant may be
declared in default upon compliance with the following: (a) the plaintiff
must file a motion to declare the defendant in default (b) serve notice of
his motion to defendant, which must include a notice of hearing (c) at the
hearing, show proof of failure on the part of the defendant to file his
answer within the reglamentary period. 155 Note that a court cannot motu
propio declare a defendant in default.
ONCE DECLARED IN DEFAULT
The court can proceed to render judgment granting the claimant such
relief as his pleading may warrant, UNLESS, the Court in its discretion
requires the claimant to submit the evidence. Such reception may be
delegated to the Clerk of Court, who must be a member of the BAR
1.In addition, the defaulted defendant is entitled to NOTICE OF
SUBSEQUENT PROCEEDINGS but HE CANNOT TAKE PART IN THE TRIAL. 156
2.EFFECT OF A PARTIAL DEFAULT, where a pleading asserting a claim states
a common cause of action against several defending parties, some of
whom answer while others do not , THE COURT SHALL TRY THE CASE
AGAINST ALL UPON THE ANSWERS THUS FILED AND RENDER JUDGMENT
UPON THE EVIDENCE PRESENTED.157
3.THE EXTENT OF RELIEF THAT MAY BE AWARDED shall not exceed the
amount or be different in kind from that prayed for nor award unliquidated
damages.158
WHAT ARE THE REMEDIES OF A DEFAULTED DEFENDANT
The available remedies of a defendant who is declared in default are as
follows:
1.MOTION TO SET ASIDE ORDER OF DEFAULT- under oath, filed at any time
after notice of declaration in default and before judgment. Defendant must
show by an AFFIDAVIT OF MERIT that failure to file an answer was due to
FAME and that he has a meritorious defense
2. MOTION FOR NEW TRIAL on the ground of FAME if the trial court has
rendered judgment but it has not yet become final
3. APPEAL the judgment by default (not the order as it is interlocutory,
and cannot be appealed) within 15 days from notice of judgment. Note:
that if in the meantime, a motion to set aside order of defendant has been
denied, it can be assigned as an error in the appeal. THE NON FILING
THOUGH DOES NOT BAR APPEAL
4. PETITION FOR RELIEF FROM JUDGMENT based on FAME provided no
appeal has been taken within 60 days from notice and 6 months from entry
of judgment.159
5. ACTION TO ANNUL JUDGMENT based on EXTRINSIC / COLLATERAL
FRAUD within 4 years from discovery of the fraud (ONE THAT INDUCES
ONE NOT TO PRESENT HIS CASE/PREVENTS FULL AND FAIR HEARING)
6. CERTIORARI if improperly declared in default OR motion to set aside
was denied and is tainted with grave abuse of discretion. Filed within 60
days from notice or judgment order resolution or 60 days from denial
(notice) of motion for reconsideration. 160
CASES WHERE NO DEFAULT LIES
In the following cases, default does not lie: (a) annulment of marriage
(b)declaration of nullity of marriage (c) legal separation (d) expropriation,
and (e) forcible entry, illegal detainer and the other actions covered by the
Rules on Summary Procedure. In the first three cases, the court shall order
the prosecuting attorney to investigate whether or not collusion exists, and
if there is no collusion, to intervene for the state in order to see that the
evidence so presented is not fabricated. 161
be made upon motion filed in court, with notice to the adverse party and
opportunity to be heard.166
2.1That the amendments should not substantially alter the cause of action
or defense is NO LONGER THE RULE as the Rules now allow the pleading of
alternative causes of action/defenses167 and that all such causes or
defenses must be pleaded in accordance with the rule on waiver. 168
2.2The Trial Court may refuse leave or amendments when: (a) a responsive
pleading has been filed and the motion for leave to amend is made with
intent to delay (b) purpose is to confer jurisdiction as the court must first
acquire jurisdiction before it can act 169 (c) purpose is to cure the defect of a
non-existent cause of action. Example: An amendment of the complaint to
correct its having been filed prematurely or when the obligation was not
yet due.
2.3IF NO LEAVE IS OBTAINED, the pleading it has no standing and may be
stricken from records
2.4 PROBLEM: Complaint is filed against several defendants. Some
defendants answer, the others have not yet filed their answers.
Amendments will be allowed as a matter of right against those who have
not filed answers, and with leave of court, as against those who have filed
their answers.170
3.Substantial amendments can also be made when it is necessary to
conform to the evidence. This occurs when issues are tried with the
express or implied consent of parties. If such, they are treated in all
respects as if they have been raised in the pleadings 171, thus paving the
way for an amendment of the pleadings to conform to the evidence. This is
made upon motion of any party, even after judgment THOUGH FAILURE TO
AMEND DOES NOT AFFECT THE RESULT OF THE TRIAL. Example: Increased
claim for the payment of damages OR made to authorize presentation of
evidence. This occurs when evidence is objected to at the trial on the
ground that it is not within the issues made by the pleadings, the court
may allow the pleadings amended and shall do so with liberality to
authorize presentation of evidence.172
166 Supra, Section 3, Rule 10
167 Supra, Section 2, Rule 8
168 Supra, Section 1, Rule 9
169 Tirona v Alejo, 367 SCRA 17, Gaspar v Dorado, 15 SCRA 331
170 Siasoco v Court of Appeals, 303 SCRA 186
171 Bernardo v Court of Appeals, 263 SCRA 660
172 Supra, Section 5, Rule 10
50
stricken out OR make such order as it deems just. 197 HENCE, it may also
dismiss for failure of the plaintiff to obey order of the Court. 198 The striking
out of a complaint by the lower court upon motion of the defendant for
failure of the plaintiff to comply with an order requiring him to submit a bill
of particulars as a ground for dismissal is equivalent to an adjudication on
the merits unless otherwise provided by the court. 199
The modes of filing are (1) Presenting the original copies of pleadings,
appearances, motions, notices, orders, judgments and all other papers to
the clerk of court, OR (2) By registered mail. 203
1.The clerk of court shall if filing be PERSONAL, endorse on the pleading,
the date and the hour of filing. If it BY MAIL, the date appearing on the post
office stamp / registry receipt shall be date of the filing / deposit of court.
The envelope shall be attached to the record. It bears stressing that it is
the date of mailing, not the date of receipt of the mail matter, which shall
be considered as the date of filing. 204 This has been the practice since mail
is considered an agent of the Government. 205This is also known as the
MAILBOX RULE.
2.The PAPERS that are to served or ARE TO BE FILED / SERVED are
JUDGMENTS, RESOLUTIONS, ORDERS, PLEADINGS SUBSEQUENT TO THE
COMPLAINT, WRITTEN MOTIONS, NOTICE, APPEARANCES, REMAND, OFFER
OF JUDGMENT OR SIMILAR PAPERS SHALL BE FILED AND SERVED UPON
AFFECTED PARTIES206
WHAT ARE THE MODES OF SERVICE
The general rule is that PLEADINGS, MOTION, NOTICES, ORDERS,
JUDGMENTS AND OTHER PAPERS shall be served PERSONALLY or by
MAIL.207
1.IF PERSONALLY served, it may done: (a) by delivering personally a copy
to party or his counsel, OR (b) leaving it in his office with a clerk or person
having charge thereof, OR (3) IF NO PERSON IS FOUND IN THE OFFICE OR
HE HAS NO OFFICE, by leaving a copy between the hours of 8am to 6pm at
partys / counsels residence, if known, with a person of sufficient age and
discretion residing therein.208
2.IF BY MAIL, by depositing a copy in the post office in a sealed envelope,
plainly addressed to the party or counsel, if known, at his address / office,
OTHERWISE, at his residence, if known, postage prepaid and with
instructions to the postmaster to return the mail to sender after 10 days if
or filing was not done personally. IF NOT, it may be cause to consider the
paper as not filed. 214
1.Where the address of the respondents counsel is 83 kilometers away
from the address of petitioners counsel, such distance makes personal
service impracticable, and a written explanation why service was not done
personally might have been superfluous. Liberal construction has been
allowed in cases where the injustice to the adverse party is not
commensurate with the degree of thoughtlessness in not complying with
the procedure prescribed.215
appended to the motion. Absent one or the other, or both, there is no proof
of service.218
2.Late filing of the affidavit of service may be considered as substantial
compliance with the Rules.219
3.Failure of a party to comply with the required proof of service may be
excused where the motion is not a contentious motion and therefore, no
right of the adverse party would be affected by the admission thereof. 220
NOTICE OF LIS PENDENS
Is an announcement to the world that a particular property (real) is in
litigation, serving as a warning that one who acquires the property or an
interest therein does at his own risk which is filed with the Office of the
Register of Deeds of the place where the property is located.
1.It shall contain (a) the names of the parties (b) object of the action or
defense (c) description of the property. 221
2.It is only from the time of the filing of the notice for record shall a
purchaser or encumbrancer of the property affected thereby, be deemed
to have constructive notice of the pendency of the action and only of its
pendency against parties designated by their real names
3. It is available only in an action affecting title or right of possession of
real property. Specifically in actions (a) to recover possession of real
estate
(b)to quiet title (c) to remove a cloud (d) for partition (e) other
proceeding of any kind in court directly affecting title to the land or the use
or occupation thereof or buildings thereon. 222
WHO MAY AVAIL OF IT
The plaintiff or the defendant when affirmative relief is claimed in the
answer
WHEN MAY IT BE CANCELLED
218 Cruz v Court of Appeals, 388 SCRA 72
219 Ace Navigation, Inc v Court of Appeals, 338 SCRA 70
220 PEA v Caoibes, Jr., 312 SCRA 767
221 Supra, Section 14, Rule 13
222 Viewmaster Construction Corporation v Maulit, 326 SCRA 821, Alberto v Court of Appeals, 334 SCRA
756
60
Upon order of the court when: It is shown that it has for the purpose of
molesting the adverse party or it is not necessary to protect the rights of
the party who caused it to be recorded. 223
RULE 14 SUMMONS
DEFINED
It is a writ issued sealed and signed by the clerk of court upon filing of a
complaint and payment of requisite legal fees 224 ISSUED to and DIRECTED
to the defendant containing the following: (a) name of the court and of the
parties (b) a direction that the defendant answer within the time fixed by
the Rules, and (c) notice that unless defendant answers, plaintiff will take
judgment by default and may be granted the relief prayed for. ATTACHED
THERETO IS A COPY OF THE COMPLAINT AND ORDER FOR THE
APPOINTMENT OF A GUARDIAN AD LITEM, IF ANY.225
1.It shall also contain a reminder to the defendant to observe restraint in
filing a motion to dismiss and instead allege the grounds thereof as
defenses in the answer.226
WHO SERVES SUMMONS
The sheriff, his deputy, or other proper Court Officer, or for justifiable
reasons by any suitable person authorized by the court issuing the
summons.227
1.An Officer having management of a jail or institution, if a defendant is a
prisoner therein is deputized as a special sheriff for service of summons. 228
SIGNIFICANCE OF SUMMONS
The significance of summons is that it is the primary means by which a
Court is able to acquire jurisdiction over the person of the defendant and
to give notice that an action has been commenced against him.
223 Lim v Vera Cruz, 356 SCRA 386
224 Supra, Section 1, Rule 14
225 Supra, Section 2, Rule 14
226 A.M. No. 03-1-09-SC
227 Supra, Section 3, Rule 14
228 Supra, Section 9, Rule 14
61
behind the rule is plain: unless the movant sets the time and place of
hearing, the court will be unable to determine whether the adverse party
agrees or objects to the motion, and if he objects, to hear him on his
objection. The objective is to avoid a capricious change of mind in order to
provide due process to both parties and ensure impartiality. 259
4.2The absence of the notice of hearing will not toll the running of the
reglementary period for appeal.260
5. It must be served, together with the notice of hearing on the adverse
party at least 3 days before the date of hearing UNLESS THE COURT FOR
GOOD CAUSE SETS THE HEARING EARLIER.261
5.1The purpose of the three day notice rule is to avoid surprise upon the
opposite party and to give him time to study and meet the arguments of
the motion.262
6. There must be proof of service of every written motion set for hearing
otherwise it shall not be acted upon. 263
6.1As a general rule, proof of service is mandatory. 264
6.2A judge can act ex-parte on a motion where the rights of the adverse
party are not affected.265
WHEN SHOULD MOTIONS BE SET
All motions must be scheduled for hearing on Friday afternoons or if it be a
non-working holiday, in the afternoon of the next working day UNLESS THE
MOTION REQUIRES IMMEDIATE ACTION.266This day is MOTION DAY.
WHAT SHOULD A MOTION CONTAIN
1.A motion attacking a pleading (motion to dismiss) order, judgment, or
proceedings (motion for reconsideration) shall include all objections then
available, and all objections not so included are deemed waived EXCEPT
259 Fajardo v Court of Appeals, 354 SCRA 736
260 Cledera v Sarmiento, 39 SCRA 553
261 Supra, Section 4, Rule 15
262 Remonte v. Bonto, 16 SCRA 257
263 Supra, Section 6, Rule 15
264 Cruz v Court of Appeals, 388 SCRA 72
265 Sumadchat v Court of Appeals, 111 SCRA 488
266 Supra, Section 7, Rule 15
66
1.It shall BE HEARD287, at the hearing, the parties shall submit arguments
on the questions of law and evidence on the questions of law and fact
involved EXCEPT THOSE NOT AVAILABLE AT THAT TIME. SHOULD THE CASE
GO TO TRIAL, EVIDENCE DURING THE HEARINGS SHALL AUTOMATICALLY
BE PART OF THE EVIDENCE OF PARTY PRESENTING THE SAME.
2.After the hearing, Court shall either DISMISS THE ACTION, DENY THE
MOTION OR ORDER AMENDMENT OF THE PLEADING, stating clearly and
distinctly the reasons for the action taken. 288
2.1It is now mandated that the Court cannot defer resolution of the motion
based on the reason that the ground relied upon does not appear to be
indubitable or sure
3. IF MOTION IS DENIED, the movant shall file an answer within the
balance of the period prescribed by Rule 11, which he was entitled to at
the time of serving the motion, but not less than 5 days in any event,
COUNTED FROM NOTICE OF DENIAL. IF ORDERED AMENDED, an answer is
to be filed within period prescribed by Rule 11, counted from service of
amended pleading, unless the court provides a longer period. Note that it
is 15 days as no answer has of yet been filed. Hence the amendment is
one that is a matter of right.289
3.1The EFFECT OF DISMISSAL is that subject to the right to appeal, an
order granting a motion to dismiss on the grounds of (a) prior judgment or
statute of limitations
(b) claim / demand has been paid,
waived abandoned or otherwise extinguished, or (c) is unenforceable
under the statute of frauds SHALL bar refiling of the same. 290
RULE 17 - DISMISSAL OF ACTIONS
PLAINTIFF DISMISSAL OF HIS OWN COMPLAINT
A plaintiff may cause the dismissal of his complaint by:
1.Filing of a notice of dismissal at anytime before service of an answer or
motion for summary judgment. Once filed, the court shall issue an order
confirming the dismissal, which is without PREJUDICE, unless stated
287 Supra, Section 2, Rule 16
288 Supra, Section 3, Rule 16
289 Supra, Section 4, Rule 16
290 Supra, Section 5, Rule 16
71
2.NOTE THAT TRIAL SHALL BE LIMITED TO ISSUES STATED IN THE PRETRIAL ORDER.307
3.Notwithstanding, courts are not required to resolve all issues raised in
pleading unless necessary for the resolution of the case. 308
RULE 19 INTERVENTION
WHO MAY INTERVENE
A person who has a (a) legal interest in the matter in litigation (b) has legal
interest in the success of either of the parties (c) has an interest against
both or (d) is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or an officer
thereof.309
1.Examples are (a)an action for payment of money, where personal
property of the defendant is attached, a 3rd person claiming the attached
property can intervene (b) action by alleged owners of the land sought to
be foreclosed.
2. The interest which entitles a person to intervene in a suit must be in
the matter in litigation and of SUCH DIRECT OR/AND IMMEDIATE
CHARACTER that intervenor will either GAIN or LOSE by direct legal
operation and effect of judgment. 310
3.Intervention does not lie for a transferee pendente lite. 311
HOW AND WHEN CAN A PERSON INTERVENE
Filing of a motion for leave of court to intervene, attaching thereto a copy
of the pleading in intervention, which is then served on the original parties
at any time before rendition of judgment by the trial court. 312
1.The COURT MAY REFUSE TO GRANT LEAVE WHEN (a) It will unduly delay
or prejudice the adjudication of the rights of the original parties. Example:
Delay or laches in bringing intervention, OR (b) Intervenors rights may be
fully protected in a separate proceeding. Example: Attachment of real
property subject of a mortgage
2. The pleadings in intervention are (a) Complaint in Intervention, if he
asserts a claim against either or all of the original parties, OR (b) Answer in
Intervention, if he unites with the defending party in resisting the claim of
the plaintiff. 313
3.If granted, a complaint in intervention is to be replied to within 15 days
from notice of the order admitting the same unless a different period is
fixed by the court.
4. NO INTERVENTION IS ALLOWED IN LAND REGISTRATION CASES as the
remedy is to file an OPPOSITION. Neither is it allowed in cases covered by
the Rules on Summary Procedure.
5. Intervention is merely collateral or accessory or ancillary to the
principal action and not an independent proceeding. Hence, with the final
dismissal of the original action, the complaint in intervention can no longer
be acted upon.314
6.An order denying a motion for intervention is appealable. 315
RULE 20 CALENDAR OF CASES
MAINTENANCE OF THE COURT CALENDAR
The clerk of court, under the direct supervision of a judge, shall keep a
calendar for PRE-TRIAL, TRIAL, TRIALS THAT WERE ADJOURNED OR
POSTPONED, THOSE WITH MOTIONS TO SET FOR HEARING. In fixing the
calendar, PREFERENCE IS GIVEN TO HABEAS CORPUS, ELECTION CASES,
SPECIAL CIVIL ACTIONS, AND THOSE REQUIRED BY LAW. 316
ASSIGNMENT OF CASES
The assignment of cases shall always by raffle done in open session of
which adequate notice shall be given to afford interested parties the
313 Supra, Section 3, Rule 19
314 Barangay Matictic v Elbinias, 148 SCRA 83
315 Foster-Gallego v Galang, 435 SCRA 275
316 Supra, Section 1, Rule 20
78
1.Witness resides more than 100 kilometers from his residence to the
place where he is to testify by the ordinary course of travel. 324 This is also
called the VIATORY RIGHT OF A WITNESS or the right not to be compelled
to testify in a civil case if he lives more than 100 kilometers from his
residence to the place where he is to testify by ordinary course of travel.
1.1If the viatory right is invoked, a witness can still be compelled to testify
by the taking of his deposition in a place within 100 kilometers from where
he resides, observing the following steps: (a) Party desiring to take
deposition shall give reasonable notice in writing to every other party in
the action stating the TIME, PLACE AND NAME/ADDRESS OF PERSON
WHOSE DEPOSITION IS TO BE TAKEN. There should be proof of service of
the notice (b) Proof of service of notice to take deposition shall be
presented to the clerk of court of the place where deposition is to be taken
(c) On the basis of such proof of service, the clerk upon authority and
under seal of the court, shall issue the subpoena BUT a subpoena duces
tecum cannot be issued without an order of the Court (4) Subpoena is to
be served on witness whose deposition is to be taken. 325
2.Witness is a detention prisoner, if no permission of the court in which his
case is pending is obtained or if the witness is a prisoner sentenced to
death, reclusion perpetua or life imprisonment and is confined in a penal
institution, if authority of the SC to bring out the prisoner has not been
obtained. The court should examine and study the application properly to
determine if it is being made for a valid purpose. 326
FORM AND CONTENTS OF SUBPOENA
A subpoena must contain the following: (a) Name of the court (b) Title of
action/investigation AND IS TO BE DIRECTED to the person whose
attendance is required. IF DUCES TECUM, in addition, it must contain a
reasonable description of the books, documents, things demanded which is
must appear to the Court to be PRIMA FACIE relevant. 327
WHAT ARE THE GROUNDS TO QUASH A SUBPOENA
1.If DUCES TECUM, it may be quashed on the following grounds: (a) It
is
unreasonable and oppressive (b)
Relevancy of the books, documents or
things do not appear (c)
Person in whose behalf subpoena is
324 Supra, Section 10, Rule 21
325 Supra, Section 5, Rule 21
326 Supra, Section 2, Rule 21
327 Supra, Section 3, Rule 21
80
issued fails to advance the reasonable costs of the production thereof (d)
The witness fees and kilometrage allowed by the rules were not tendered
when subpoena was served. Under A.M. No. 04-2-04-SC, witness fees shall
be PHP 200.00 a day inclusive of all expenses
2. If AD TESIFICANDUM, it may be quashed on the following grounds: (a)
Witness is not bound by the subpoena (b) Witness fees and kilometrage
allowed by rules were not tendered when the subpoena was served. 328
HOW IS A SUBPOENA SERVED
In the same manner as personal or substituted service of summons,
original is to be exhibited and delivered to person on whom it is served
tendering the fees for one day attendance at the kilometrage allowed by
Rules EXCEPT if subpoena is issued by or on behalf of the Republic of the
Philippines or an officer or agency thereof. Tender must be made so as to
allow the witness a reasonable time for preparation or travel to the place
of attendance.329
1.If DUCES TECUM, the cost of production of books, papers or things must
also be tendered.
2. Under A.M. No. 04-2-04-SC, the fee for service of summons is PHP
100.00 per witness.
CAN A PERSON BE COMPELLED TO APPEAR AND TESTIFY WITHOUT A
SUBPOENA
Yes, when he is PRESENT IN COURT, in which event it is as if he were in
attendance upon subpoena issued by the Court. 330
WHAT ARE THE CONSEQUENCES OF DISOBEDIENCE TO A SUBPOENA
The consequences of disobedience are: (a) He may be arrested and
brought before the Court where his attendance is required, the cost of
warrant and seizure shall be paid by the witness if the Court finds
disobedience to be willful and without just excuse. 331 (b) Citation in
328 Supra, Section 4, Rule 21
329 Supra, Section 6, Rule 21
330 Supra, Section 7, Rule 21
331 Supra, Section 8, Rule 21
81
contempt by the court from which the subpoena is issued. It not issued by
a Court, then in accordance with the applicable rule / law. 332
RULE 22 COMPUTATION OF TIME
HOW COMPUTED
The day of the act / event from which the designated period of time begins
to run is excluded and date of performance included. If the last day falls on
a Saturday, Sunday or legal holiday in the place where the Court sits, the
time shall not run until the next working day. 333
EFFECT OF INTERUPTIONS
Allowable period after interruption shall start to run on the day after, notice
of the cessation of the cause thereof. The day of the act that caused
cessation shall be excluded in the computation of the period.
1.RULE ON COMPUTATION OF TIME DOES NOT APPLY TO PRESCRIPTION OF
OFFENSES or PRESCRIPTION OF CAUSES OF ACTION. Hence, if the last day
falls on a Saturday, Sunday or legal holiday, it prescribes on the said date.
RULES 23 TO 29 MODES OF DISCOVERY
WHAT IS DISCOVERY
The methods used by the parties to a civil action to obtain information held
by the other party that is relevant to the action.
PURPOSES OF DISCOVERY
The purposes of resort to discovery are: (a) It is a device to narrow down /
clarify the basic issues between the parties (b) It is a device to ascertain
the facts relative to the issues
WHAT ARE THE MODES OF DISCOVERY
The modes of discovery (a) Deposition pending action 334 (b) Deposition
before action or pending appeal 335(c) Interrogatories to parties336 (d)
Request for admission by adverse party 337 (e)Production or inspection of
documents / things338 (f) Physical / mental examination of persons 339
WHEN CAN DEPOSITIONS PENDING ACTIONS BE TAKEN
1.WITH LEAVE OF COURT, after jurisdiction has been acquired / obtained
over any defendant or over property which is the subject of the action as
the issues are not yet joined and disputed facts are not yet clear OR if a
person is confined in a prison with LEAVE OF COURT ONLY, on such terms
that the Court may prescribe.
2. WITHOUT LEAVE OF COURT, after an answer has been served. 340
WHOSE DEPOSITION MAY BE TAKEN, HOW TAKEN, BY WHOM
Any person, whether a party or not, upon ORAL EXAMINATION OR WRITTEN
INTERROGATORIES upon the initiative of ANY PARTY.
SCOPE OF A DEPOSITION
GENERALLY, the deponent may be examined regarding any matter, NOT
PRIVILEGED, which is RELEVANT TO THE SUBJECT OF THE PENDING ACTION
whether it RELATES TO CLAIM OR DEFENSE of any other party. INCLUDING
THE EXISTENCE, DESCRIPTION, NATURE, CUSTODY, CONDITION, LOCATION
of any BOOKS, DOCUMENTS OR OTHER TANGIBLE THINGS and the
IDENTITY and LOCATION of persons having knowledge of relevant facts. 341
1.The limitation as to the taking and scope of a deposition after notice is
served for its taking by oral examination, UPON MOTION SEASONABLY
FILED by a PARTY OR of the PERSON to be examined, and for GOOD CAUSE
shown, the court in which the action is pending may order: (a) Deposition
not be taken (b)It be taken only at some designated place other than that
stated in the notice (c)It be taken only on written interrogatories (d) That
certain matters shall not be inquired into (e) That scope of the examination
334 Supra, Rule 23
335 Supra, Rule 24
336 Supra, Rule 25
337 Supra, Rule 26
338 Supra, Rule 27
339 Supra, Rule 28
340 Supra, Section 1, Rule 23
341 Supra, Section 2, Rule 23
83
shall be held without anyone present except the parties to the action, and
their officers of counsel (f)That after depositions are sealed, they shall be
opened only by order of the court (g)That secret processes, developments
or research need not be disclosed (h)That parties shall simultaneously file
specified documents or information enclosed in sealed envelopes to be
opened as directed by the Court (i) That court may make any order which
justice requires to protect the party or witnesses from annoyance
embarrassment or oppression.342
2.During the taking of the deposition, it shall be taken subject to the
following limitations:
2.1 During the taking of the deposition, on motion or petition of any party
or the deponent upon showing that the examination is being conducted in
BAD FAITH on IN SUCH MANNER as UNREASONABLY to ANNOY EMBARRASS
OR OPPRESS the DEPONENT, or a party the COURT where the action is
pending or the RTC of the place where deposition is being taken may
ORDER the officer taking the examination to cease forthwith or limit the
scope as provided in Section 16.
2.2 If terminated, it shall be resumed thereafter only upon order of the
Court in which the action is pending. UPON DEMAND of the OBJECTING
PARTY/DEPONENT, the taking shall be suspended for the time necessary to
make a notice for an order. In granting/refusing such order, the court may
impose upon either party or upon the witness the requirement to pay
costs/expenses as the Court may deem reasonable. 343
BEFORE WHOM MAY DEPOSITIONS BE TAKEN
1.WITHIN THE PHILIPPINES: a judge, notary public, or person authorized to
administer oaths, at any time or place if so stipulated in writing by the
parties.344
2.IN FOREIGN COUNTRIES: On notice before a secretary of the embassy or
legation or the diplomatic minister and his staff, consul general, consul,
vice consul or consular agent of the Republic of the Philippines, or before
such person or officer as may be appointed by commission or letters
rogatory.345
342 Supra, Section 16, Rule 23
343 Supra, Section 18, Rule 23
344 Supra, Sections 10 and 14, Rule 23
345 Supra, Sections 11, 12, and 14, Rule 23
84
incurred
to
attend,
including reasonable
2.IF PARTY GIVING NOTICE DOES NOT SERVE SUBPOENA AND WITNESS
DOES NOT APPEAR, Court can order party giving notice to pay reasonable
expenses for attendance plus attorneys fees to a party who appears in
person or by counsel354 (Section 24)
B.DEPOSITION UPON WRITTEN INTERROGATORIES
1. Party desiring to take the deposition upon WRITTEN INTERROGATORIES
shall serve them upon every other party with notice stating: (1) name and
address of the person who will answer them (2) descriptive title and
address of the person who will take the deposition (3) Within 10 days,
party served may serve cross-interrogatories on the party proposing to
take the deposition (4) Within 5 days thereafter, the latter may serve redirect INTERROGATORIES upon the party serving crossinterrogatories (5)
within 3 days after being served of re-direct INTERROGATORIES, a party
may serve re-cross interrogatories upon party proposing to take
deposition.355
2.A copy of the notice and copies of all interrogatories shall be delivered by
the party taking the deposition to officer designated in the notice, who
shall proceed promptly in the manner provided by Sections 17, 19 and 20
to take the testimony of the witness in response to the interrogatories and
to prepare, certify, and file / mail the deposition attaching copies of the
notice and interrogatories.356
3.Officer must promptly give notice of filing / and may furnish copies to
parties and deponent upon payment of reasonable charges. 357
NOTE: that Sections 15, 16 and 18 are applicable and that by motion, it
can be asked that the deposition be upon oral examination.
4.SEE: Gerochi vs. Dept of Energy GR 159796, April 5, 2005
Party makes a motion in said Court for leave to take depositions upon the
said notice and service thereof as if the action was pending therein
MOTION states (1) name and addresses of persons to be examined and
substance of testimony to be elicited (2) reasons for perpetuating
testimony.
If Court finds that it is proper to avoid failure or delay of justice it may
allow the depositions to be taken and used in the same manner and under
same conditions as prescribed for depositions in pending actions. 370
EFFECT OF TAKING DEPOSITIONS
A party shall not be deemed to make a person his own witness by taking
his deposition.371
EFFECT OF USING DEPOSITIONS
If introduced in evidence in whole/part for any purpose OTHER THAN
contradicting or impeaching the deponent, such makes the deponent the
witness of the party introducing the deposition BUT it does not apply to the
use of an adverse party of a deposition as described in Par. (b) Section 4 of
Rule 23.372
USE OF DEPOSITION
When can it be used? at the trial, upon the hearing of a motion or an
interlocutory proceeding ANY PART or ALL OF A DEPOSITION, so far as
admissible under the rules of evidence may be used AGAINST any party
who was present, or represented at the taking or had due notice thereof, in
ACCORDANCE WITH THE FOLLOWING:
a.May be used by any party for the purpose of contradicting or impeaching
the testimony of deponent as a witness
b. Deposition of a party or any one who at the time of the taking was an
officer, director, or managing agent of a public/private corporation
2. At the trial or hearing, any party may rebut any relevant evidence
contained in a deposition whether introduced by him or by any other
party.376 This is called rebutting a deposition.
IS USE OF THE DEPOSITION LIMITED TO THE ACTION/PENDING ACTION
WHEN IT WAS TAKEN
No, because substitution of parties does not affect the right to use
depositions previously taken, when the action is DISMISSED and another
action involving the same subject is afterward brought between the same
parties or their representatives or successors in interest, all depositions
lawfully taken and duly filed in the former action may be used in the latter
as if originally taken therefor.377
RULE 26 REQUESTS FOR ADMISSIONS
WHAT IS A REQUEST FOR ADMISSION
It is a written request for the (1) admission of the genuiness of any
material and relevant document described in and exhibited with the
request or (2) the truth of any material or relevant matter of fact set forth
in the request. A party may file and serve a request for admission upon
any other party at any time after the issues have been joined. 378
EFFECT OF FILING AND SERVICE UPON ANY OTHER PARTY
Each of the matters of which an admission is requested shall be deemed
admitted UNLESS, within a period designated in the request, which shall
not be less than 15 days after service thereof or such period which the
Court will allow on motion, the party served files and serves upon the
requesting party a sworn statement, either denying specifically the
matters is setting forth in detail the reason why he cannot truthfully either
admit / deny.
Objections if any shall be submitted to the Court within the period for
complying and prior to filing of the Sworn Statement compliance is then
deferred until objections are resolved which should be done as early as
practicable.379
376 Supra, Section 9, Rule 23
377 Supra, Section 5, Rule 23
378 Supra, Section 1, Rule 26
379 Supra, Section 2, Rule 26
94
EFFECT OF ADMISSIONS
It is for the purpose of the pending action only and shall not constitute an
admission by him for any purpose or used against him in any other
proceeding380
THOUGH any admission, express or implied may be allowed by the court to
be withdrawn or amended upon such terms as may be just. 381
EFFECT OF FAILURE TO SERVE
Unless otherwise allowed by the Court for good cause and to prevent
failure of justice, a party who fails to serve a request for admission of
material / relevant facts at issue on the adverse party, which are or ought
to be within the latters personal knowledge, shall not be permitted to
present evidence on such facts.382
RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS ON
THINGS
HOW
On motion of any party showing GOOD CAUSE, the COURT where the
action is pending MAY ORDER, specifying the time, place and manner AND
prescribing such terms and conditions as are just:
1.Any party to produce and permit the inspection, copying, photographing,
by or on behalf of a having party of any designated DOCUMENT, PAPERS,
BOOKS, ACCOUNTS, LETTERS, PHOTOGRAPHS, OBJECTS OR TANGIBLE
THINGS NOT PRIVILEGED which CONSTITUTE OR CONTAIN EVIDENCE
MATERIAL TO ANY MATTER INVOLVED IN THE ACTION which are in his
possession and control, OR
2. Permit entry upon designated land or other property in his possession /
control for the purpose of INSPECTING, MEASURING, SURVEYING, TAKING
PHOTOGRAPHS of the property or any designated RELEVANT OBJECT or
OPERATION thereon.383
380 Supra, Section 3, Rule 26
381 Supra, Section 4, Rule 26
382 Supra, Section 5, Rule 26
383 Supra, Section 1, Rule 27
95
OTHER SANCTIONS
1.Expenses on refusal to admit if requested party serves a sworn denial
and party serving request proves genuineness / truth, he may apply for an
order directing the requested party to pay expenses incurred in making
proof plus attorneys fees. Order is issued except if court finds good
reasons for denial or admissions were of no substantial importance. 390
2.Failure of a party to willfully appear before the officer taking the
deposition, after being served with a proper notice, or fails to serve
answers to written interrogatories properly served, court may on motion
and notice: (a)Strike out all or any part of the pleading of that party (b)
Dismiss the action / proceeding / part thereof (c) Enter judgment by default
against that party, (d) and ,in its discretion, order payment of reasonable
expenses and attorneys fees391 BUT no expenses or fees are to be
assessed against the Republic of the Philippines. 392
RULE 30 TRIAL
NOTICE OF TRIAL
Upon entry of a case in the trial calendar the clerk shall notify the parties
of the date of the trial in such manner as to ensure receipt of the notice at
least 5 days before such date.393
MAY TRIAL BE POSTPONED / ADJOURNED
Courts may adjourn a trial from day to day, and to any stated time as the
expeditious and convenient transaction of business may require but it
shall have no power to adjourn 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 of the Supreme Court. 394
IF MOTION TO POSTPONE IS DUE TO ABSENCE OF EVIDENCE
390 Supra, Section 4, Rule 29
391 Supra, Section 5, Rule 29
392 Supra, Section 6, Rule 29
393 Supra, Section 1, Rule 30
394 Supra, Section 2, Rule 30
98
4.He shall avoid delay as he is duty bound to proceed with all reasonable
diligence. Either party on notice to other parties and the commissioner
may apply for a court order to expedite proceedings / report 412
5.If witness refuses to obey a subpoena or give evidence. It shall constitute
contempt of the appointing court 413
6.Upon completion of trial / hearing / proceeding he shall file with the
court has report in writing upon the matters submitted to him by the order
of reference. When powers are not specified or limited, he shall set forth
his findings of fact and conclusions of law in his report. He shall also attach
all exhibits, affidavits, depositions, paper and transcripts of the testimonial
evidence given414
7.Notice is then given by the clerk to the parties of the filing of the report,
they shall then be allowed 10 days within which to signify objections to the
findings in the report, is so desired.
7.1 NOTE: Objections to the report based on grounds available to the
parties during the proceedings before the commissioner, other than as to
the findings / conclusions, shall not be considered unless made before the
commissioner.415
8.Upon expiration of the period, 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 to the commissioner 416
9.If the parties stipulate that the commissioners findings of facts shall be
final, only questions of law shall be thereafter considered. 417
9.1Note that the findings of the commissioner are merely advisory and are
not absolutely binding upon the court.418
EXPENSES / COMPENSATION
(a) In both civil and criminal actions, the basis for both is the insufficiency
of evidence. (b) In a civil action, dismissal by demurrer is by motion only,
while in a criminal action, dismissal by demurrer is upon the courts
initiative or motion giving the prosecution an opportunityto be heard. (c) In
a civil action, leave is not required prior to filing, while in a criminal action
leave may / may not be obtained. If obtained no waiver of right to
present evidence if
denied and if there is no leave, it is a
waiver (d) In a civil action, if granted, plaintiffs remedy is appeal, while in
a criminal action, if granted, there is no appeal as such will constitute
double jeopardy.
RULE 34 JUDGMENT ON THE PLEADINGS
JUDGMENT ON THE PLEADINGS
Can be had if the ANSWER fails to tender an issue or otherwise admits the
material allegations of the complaint 424
1.There is no MOTU PROPIO RENDITION OF JUDGMENT as it is always by
motion.
2. An answer fails to tender an issue when it fails to comply with the
requirements of specific denial or is deemed to have admitted the
allegations in the complaint425
3.An answer admits the material allegations when it expressly confesses
the truthfulness thereof or where it omits to deal with them all.
4. NOTE that when an answer raises factual issues involving damages, it
is not proper to render judgment on the pleadings as presentation of
evidence is required.
WHO MAY MOVE FOR JUDGMENT ON THE PLEADINGS
Only the plaintiff in original complaint, or of the counter-claim, or of the
cross claim, or of the third party complaint may so move for judgment on
the pleadings.
WHEN NOT ALLOWED
424 Supra, Section 1, Rule 34
425 Supra, Sections 8,9 and 11, Rule 8
105
5. The PROCEDURE for the filing and resolution of a motion for summary
judgment is as follows:
1. Plaintiff/Defendant serves on the defendant/plaintiff a copy of the
motion at least 10 days before the date of hearing specified in the motion.
2. The defendant/plaintiff MAY serve opposing affidavits, depositions or
admissions at least 3 days before the date of the hearing.
3. Court hears the motion.
4. If after hearing, it finds that the motion filed by PLAINTIFF justified,
thus there is no genuine issue as to any material fact, it will render
summary judgment for the plaintiff. If not, it will deny, set the case for pretrial, then trial. If filed by the defendant and is justified, the complaint is
dismissed, otherwise the case proceeds with the filing of answer or pretrial is set and conducted.
FORM OF AFFIDAVITS / SUPPORTING DOCUMENTS
1. They shall be made on personal knowledge, setting forth such facts as
would be admissible in evidence and shall show affirmatively that the
affiant is competent to testify to the matters stated therein. Certified
copies of all papers / parts thereof shall be attached and served
therewith.430
2.If affidavits have been determined to the satisfaction of the court that
they are presented in bad faith or solely for the purpose of delay, the Court
may forthwith order the offending party to pay reasonable expenses which
may have been incurred by the other party, including attorneys fees. It
may also find / adjudge, after hearing, that attending party / counsel are
guilty of contempt.431
EFFECT OF THE RENDITION OF SUMMARY JUDGMENT
1.The aggrieved party may appeal the summary judgment as such is final
judgment as defined by Section 1, Rule 41.
The requisites of a judgment or final order are: (1) It must be in writing (2)
It must be personally and directly prepared by the judge (3)
It
must
state clearly and distinctly the facts and the law on which it is based (4)
It must be signed by the judge (5) It must be filed with the clerk of
court.433
1.NOTE that a judge who has been reassigned can pen a decision as long
he is still an incumbent judge.434
WHEN IS JUDGMENT RENDERED
Ordinarily after trial, except in judgment on the pleadings, summary
judgment, judgment by compromise, judgment based on stipulation of
facts, judgment upon confession, order of dismissal in instances when it
considered as an adjudication on the merits, judgment in cases covered by
the Rules of Summary Procedure.
1.It is the filing of the judgment or final order with the clerk of court that
constitutes RENDITION OF JUDGMENT, not the date of the writing of the
decision or judgment, nor the signing thereof or even promulgation
thereof.435
2.A MEMORANDUM DECISION is one which adopts by references findings of
facts and conclusions of law contained in the decision of an inferior
tribunal. Note that this does not violate the rule as to statement of the
facts and law. This kind of a decision can only be rendered by an appellate
court.
3. A SIN PERJUICIO JUDGMENT is one which is without a statement of facts
and is to be supplemented later by the final judgment. Such a judgment is
void.
DUTY OF THE CLERK OF COURT WHEN JUDGMENT BECOMES FINAL
If no appeal or motion for reconsideration or new trial is brought within the
time provided, the judgment / final order shall forthwith be entered by the
clerk in the BOOK OF ENTRIES OF JUDGMENT. The date of finality shall be
deemed the date of entry and shall contain the dispositive portion and
433 Supra, Section 1, Rule 36
434 ABC Davao Auto Supply v Court of Appeals, GR 113296, January 16, 1998
435 Castro v Malazo, 99 SCRA 164
109
signed by the clerk which a certificate that such judgment / final order has
become final and executory.436
1.Note that date of entry retroacts to date of finality. Hence, both occur
simultaneously by operation of law.
2. JUDGMENTS THAT ARE FINAL AND EXECUTORY CAN BE CORRECTED but
limited only to NUNC PRO TUNC amendments or those that are merely
clerical or typographical.
3. Correction or amendment is also allowed if purpose is to clarify an
ambiguity caused by an omission or mistake, judgment / final order.
4. A COMPROMISE after finality of a judgment is allowed. The basis of the
allowance is the principle of novation, which is a mode of extinguishing an
obligation.437
Pet for extraordinary relief- GR 167651, San Pablo vs. marina May 10, 2005
JUDGMENTS MAY BE
1.Given for or against one or more several plaintiffs or for or against one or
more several defendants. Courts, when justice demands require parties on
each side to file adversary proceedings as between themselves to
determine their ultimate rights / obligations. 438
2.In an action against several defendants, the courts if proper may render
judgment against one or more, leaving the action to proceed against the
others.439 Example: Judgment against a surety for admitted liability.
3.Separate judgments may be rendered when more than one claim for
relief is presented, the court at any stage upon determination of the
issues material to a particular claim and all counter claims arising
therefrom may render a separate judgment disposing of the claim and
proceeding with the others. BUT, it may stay execution or enforcement
until rendition of subsequent judgment/s and may prescribe such
conditions to secure benefit thereof to the party in whose favor the
436 Supra, Section 2, Rule 36
437 Magbanua v. Uy, 458 SCRA 185
438 Supra, Section 3, Rule 36
439 Supra, Section 4, Rule 36
110
judgment is rendered.440
have been joined
4.Judgment against entity without juridical personality it shall set forth the
individual names / proper names if known of persons composing it. 441
generally to mistake of fact, not of law. 445 failure to answer / act because
he believed it unnecessary because of a compromise or other document.
1.4Excusable 446Negligence is an excusable omission to do something
which a reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affiants, would do; or the reasonable doing
of something which a prudent or reasonable man would not do. failure is
really that of the party or counsel non submission on time because of
distance traveled.
2. Newly Discovered Evidence, which the aggrieved party could not with
reasonable diligence, have discovered or produced at the trial and which
would probably alter the result.
2.1 Hence, the requisites are: (a)Evidence is discovered after trial (b)Such
could not have been discovered and produced at the trial with reasonable
diligence (c)
Evidence is material NOT cumulative,
corroborative, or impeaching, and is of such weight that, if admitted, could
probably change the judgment.447
GROUNDS FOR MOTION FOR RECONSIDERATION
The grounds for a motion for reconsideration are: (a)Award of excessive
damages (b)
Insufficiency of evidence to justify the
decision or final order (c) Decision / final order is contrary to law
HOW FILED / CONTENTS
It shall be made in writing stating the ground/s, written notice of which
shall be served by the movant on the adverse party.
1. If the Motion for New Trial is based on Fraud, Accident, Mistake or
Excusable Negligence, it should be supported by affidavits of merit, which
may be rebutted by affidavits. The requirement of an affidavit is essential
because obviously a new trial would be a waste of the courts time if the
complaint turns out to be groundless or the defense ineffective. 448
2.If based on NEWLY DISCOVERED EVIDENCE it should be supported by
affidavits of the witnesses by whom such evidence is expected to be given
445 Agan v Heirs of Sps. Andres and Diosdada Nueva, 418 SCRA 421
446 Mckee v Intermediate Appellate Court, 211 SCRA 517
447 Marikina Valley Development Corporation v Court of Appeals, 294 SCRA 273
448 Yap v Tanada, 163 SCRA 464
112
449 Marina Properties Corporation v Court of Appeals, 294 SCRA 273, Cledera v Sarmiento, 39 SCRA 552
450 Firme v Reyes, 92 SCRA 713
451 Supra, Section 3, Rule 37
452 Supra, Section 5, Rule 37
453 Supra, Section 6, Rule 37
454 Supra, Section 3, Rule 37
113
FROM
JUDGMENT,
ORDERS
OR
OTHER
3.The other ways by which a final and executory judgment may be set
aside is by Petition for Certiorari under Rule 65 and Rule 46 and by
Annulment of Judgment under Rule 47.459
455 Hongria v Hongria-Juarde, 425 SCRA 504
456 Supra, Section 4, Rule 37
457 Barnes v Reyes, 411 SCRA 538
458 Supra, Sections 1 and 2, Rule 38
459 Arcelona v Court of Appeals, 280 SCRA 20
114
judgment (e) a motion for new trial if denied allows an appeal, while a
petition for relief from judgment does not allow an appeal (f) a motion for
new trial is a legal remedy, while a petition for relief is a remedy in equity
(g) a motion for new trial requires no verification, while a petition for relief
needs to be verified.
RULE 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
TWO KINDS OF EXECUTION
1. COMPULSORY is one which issues as a matter of right, or motion, upon
a judgment or order that disposes of the action or proceeding UPON
EXPIRATION of the period to appeal, if no appeal is taken therefrom / is
perfected. It also issues when appeal is duly perfected and finally resolved.
a. It may be applied for in the court of origin, on motion of judgment
obligee submitting certified true copies of the judgment / final orders /
orders sought to be enforced and ENTRY thereof, with notice to the
adverse party. There is no need for return of records.
b. It may also be applied for in the appellate court, on motion in the same
case, when the interest of justice so requires, direct the court of origin to
issue the writ of execution in the event of the refusal of the court of origin
to issue the writ. 474
c.A motion is required as there may be questions / disputes as to finality or
amounts to be stated in the writ.
2. DISCRETIONARY is one that is issued, on motion, of the prevailing party
for good reasons. This is also known as EXECUTION PENDING APPEAL /
EXCEPTIONAL EXECUTION 475
a.It is 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 the motion. 476 The COURT, may in
its discretion, order execution of judgment / final order even before the
474 Supra, Section 1, Rule 39
475 Supra, Section 2, Rule 39
476 Philippine Nails & Wires Corpoation v Malayan Insurance Company, 397 SCRA 431
117
expiration of the period to appeal. If the trial court has lost jurisdiction, it is
to be filed with the appellate court.
a.1A court LOSES JURISDICTION when there is perfected appeal and the
period to appeal has expired. When a record on appeal is required, it loses
jurisdiction OVER THE SUBJECT OF THE APPEAL upon perfection of the
appeal and expiration of the period to appeal.
a.2 The REQUISITES OF EXECUTION PENDING APPEAL are: (1) A motion by
the prevailing party with notice to the adverse party (2)There must be
good reason for execution pending appeal (3)
The good reason must be
stated in a special order. They must constitute superior circumstances
demanding urgency which will outweigh the injury or damage should the
losing party secure a reversal of the judgment on appeal. 477EXAMPLES OF
GOOD REASONS are: deterioration of the goods, prevailing partys inability
to enjoy the decision, or its becoming illusory. In a recent case, OLD AGE
was found to be a good reason. 478 NOTE: corporations financial distress
was not considered a good reason.
b.DISCRETIONARY EXECUTION BE STAYED upon approval by the proper
court of a sufficient supersedeas bond filed by the party against whom it is
directed CONDITIONED UPON THE PERFORMANCE OF THE JUDGMENT /
FINAL ORDER allowed to be executed in case finally sustained in whole in
part. The bond may then be proceeded against on motion with notice to
the surety.479 BUT, the mere filing of a bond by a successful party allow
execution pending appeal nor constitute good ground. 480
b.1There are JUDGMENTS NOT STAYED BY APPEAL such as judgments in
injunction, to include a judgment dissolving it 481 receivership, accounting
and support and such other judgments as are now or hereafter be declared
to be immediately executory, shall be enforceable upon their rendition,
they shall not be stayed by an appeal taken therefrom, unless otherwise
ordered by the trial court. IF STAYED, it shall be upon such terms as to
bond or otherwise as may be considered proper for the security /
protection of the rights of the adverse party. ON APPEAL THOUGH, the
477 Jaca v Davao Lumber Company, 113 SCRA 107
478 FEBTC v Toh, Sr. 404 SCRA 590
479 Supra, Section 3, Rule 39
480 International School v. Court of Appeals, 309 SCRA 474
481 ITC v PTA, 341 SCRA 90
118
A writ of execution shall (1)Issue in the name of RP from the Court that
granted the judgment (2)State the name of court, case number, title, and
dispositive portion (3)
Require the sheriff or other proper
officer to whom it is directed to enforce the writ according to its terms, in
the manner herein provided: (a) execution be against property of judgment
obligor, to satisfy judgment with interest, out of his real or personal
property (b)
if against real or personal property, in
the hands of personal representatives, heirs, devisees, legatees, tenants
trustees of the judgment obligor, to satisfy the judgment, with interest, out
of such property (c)
if it be for sale of real / personal
property, to sell it, describing it, and apply the proceeds in conformity with
the judgment, the material parts of which shall be recited in the writ (d) if
it be for delivery of the possession of real / personal property, to deliver
the possession of the same, describing it, to the party entitled thereto and
to satisfy any costs, damages, rents, profits covered by the judgment out
of the personal property of the person against whom it was rendered, and
if no sufficient personal property be present, out of real property (e) in all
cases, the writ shall specifically state the amount of interest, costs
damages, rents, profits due as of the date of issuance of the writ aside
from the principal obligation under judgment494
MANNER OF EXECUTION
I.FOR SUMS OF MONEY
1. Immediate payment on demand from judgment obligor payable in
cash of certified bank check payable to the obligee or any form acceptable
to him plus lawful fees to be turned over to the clerk of court of the court
that issued the writ.
If judgment obligee is not present to receive the amounts, it shall be
delivered by judgment obligor to the sheriff, turning in all amounts on the
same day to the clerk of court or if not practicable, to deposit in the
nearest government depository bank of Regional Trial Court in the locality,
then arrangements are then made for remittance to clerk of court issuing
the writ for delivery to the judgment obligee. IN NO CASE SHALL SHERIFF
DEMAND PAYMENT BY CHECK PAYABLE TO HIM
2. Satisfaction by levy if not paid in cash, the sheriff shall levy on the
properties of judgment obligor of any kind / nature which may be disposed
of for value and not otherwise exempt from execution giving obligor the
494 Supra, Section 8, Rule 39
121
3.Garnishment of debts and credits. The officer may levy on debts due the
judgment obligor and other credits. Examples: bank deposits, financial
interests, royalties, commissions, and other personal property. These are
not capable of normal delivery and are in the possession and control of
third parties.
3.1 Levy shall be made by serving notice on the person owing such debts
or having in his possession or control such credits to which the judgment
obligor is entitled.
3.2 The garnishee, shall then make a written report to the court from
service of notice stating whether or not the judgment obligor has sufficient
funds or credits to satisfy the judgment the garnished amount shall then
be delivered directly to the judgment obligee within 10 working days from
service of notice on him requiring delivery less lawful fees to be paid
directly to the Court.
3.3 If there are 2 or more garnishees the judgment obligor shall have the
right to indicate the garnishee/s who shall deliver, otherwise it shall be the
choice of the judgment obligee.497 (Section 9)
4.Writ is to be returned to the Court issuing it immediately after judgment
has been satisfied in part or in whole. If not / cannot be satisfied in full
within 30 days from receipt of the writ, the officer shall report to the court
and state the reason therefor. Such writ will continue to be in effect during
the period within which judgment may be enforced by motion, the officer
shall then make a report to the Court every 30 days on the proceedings
taken thereon until the judgment is satisfied in full or its effectivity expires.
The returns / reports shall set forth the proceedings taken, filed with the
court and copies promptly furnished parties. 498
II.FOR SPECIFIC ACTS499
1.If CONVEYANCE, DELIVERY OF DEEDS OR OTHER SPECIFIC ACTS party is
directed to comply if he fails to do so within the period specified, court
may direct the act to be done at the cost of the disobedient party, by some
other person appointed by the court and when so done it is as if done by
the disobedient party. If it involves real / personal property located in the
Philippines, the court in lieu of directing a conveyance thereof may by an
order divest title and vest it in others, which shall have the force and effect
of a conveyance executed in due form of law.
2. If for SALE OF REAL/PERSONAL PROPERTY the property is to be sold,
describing it, and apply the proceeds in conformity with the judgment.
2.1 The procedure is as follows:
a. Notice must be given as follows:
1. Perishable property posting of written notice (of time, place, sale) in 3
public places preferably in conspicuous areas of the municipal/city hall,
post office, public market, for such a time as may be reasonable depending
on circumstances.
2. Personal property posting of written notice in 3 public places for not
less than 5 days.
497 Supra, Section 9, Rule 39
498 Supra, Section 14, Rule 39
499 Supra, Section 10, Rule 39
123
4. The judgment obligor, if present may direct the order in which the
property is to be sold when such property consists of several parcels /
known lots which can be sold to advantage separately.
5. No officer or his deputies, can be a purchaser, nor be interested
directly or indirectly in any purchase at such sale. 502
6.By written consent of both judgment obligor / obligee or their duly
authorized representatives, the auction sale may be adjourned to any
date or time agreed by them. Without an agreement officer may adjourn
from day to day if it becomes necessary. 503
WHAT HAPPENS WHEN A PURCHASER REFUSES TO PAY
Officer may again sell the property to the highest bidder and shall not be
responsible for any loss occasioned thereby, like when it is resold for less.
But, the court may order the refusing purchaser to pay unto the Court such
loss, and punish him with contempt if he disobeys. Payment shall inure to
the benefit of party entitled to execution, unless he has been satisfied, in
which case to the judgment obligor. IN ADDITION: officer may thereafter
reject all bids of such purchaser.504
CAN JUDGMENT OBLIGEE PURCHASE
Yes, and if no 3rd party claim has been filed, he need not pay the amount if
it does not exceed the amount of his judgment. If it does he shall only pay
the excess. 505
EFFECT OF PAYMENT BY JUDGMENT OBLIGOR BEFORE SALE OF PROPERTY
ON EXECUTION
Sale is prevented by the payment required by execution and cost incurred
therein506
WHAT HAPPENS IF PROPERTY IS CLAIMED BY THIRD PERSON
502 Supra, Section 19, Rule 39
503 Supra, Section 22, Rule 39
504 Supra, Section 20, Rule 39
505 Supra, Section 21, Rule 39
506 Supra, Section 18, Rule 39
125
Third person is called a third party claimant. He is one who claims title to,
or right of possession of the property levied upon by the sheriff. NOTE:
there may be a 3rd party claimant in execution, preliminary attachment and
replevin.
WHAT DOES 3RD PARTY CLAIMANT DO
He can file a 3rd party claim or a terceria by executing an affidavit showing
his title thereto, or right of possession over the property being levied upon,
stating therein the grounds of such title or right, serving a copy thereof to
the sheriff and judgment obligee. If filed, sheriff is not obliged to proceed
unless the judgment obligee files an indemnity bond in an amount not less
than value of the property. No action on the bond may enforced by the
third party claimant unless filed within 120 days from date of the filing of
the bond. If bond is filed 3rd party claimant may vindicate his claim within
the period OR he may institute a separate action to vindicate his claim
BUT nothing also prevents the judgment obligee from claiming damages in
the same or separate action against a 3 rd party claimant who files a
frivolous / spurious claim.
If writ is issued in the name of the RP, no bond is required. Officer is to be
represented by the SOLGEN, and if damages are assessed, it is to be paid
out of the National Treasury. 507
C.AFTER SALE, CONVEYANCE MADE AS FOLLOWS
I. REAL PROPERTY a certificate of sale is given stating the description of
the property, price paid for each distinct lot / parcel, whole price paid and a
statement that the right of redemption shall or will expire one year from
date of registration of the certificate. 508
MAKING MENTION OF THE
RD
509
EXISTENCE OF A 3 PARTY CLAIM, IF ANY
Note: the requirement of
rd
mentioning a 3 party claim, if any, applies also to conveyance over
personal property.
THE PARTIES ENTITLED TO REDEEM ARE:
a.Judgment obligor, or his successor in interest, in whole or any part of the
property
507 Supra, Section 16, Rule 39
508 Supra, Section 25, Rule 39
509 Supra, Section 26, Rule 39
126
(h) One fishing boat and accessories not exceeding the total value of one
hundred thousand pesos owned by a fisherman and by the lawful use of
which he earns his livelihood;
(i) So much of the salaries, wages, or earnings of the judgment obligor for
his personal services within the four months preceding the levy as are
necessary for the support of his family;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accruing or in any manner
growing out of any life insurance;
(l) The right to receive legal support, or money or property obtained as
such support, or any pension or gratuity from the Government;
(m)
obligation and the officer must account to the executor or administrator for
any surplus, if any. 524
AS BETWEEN SEVERAL PERSONS AGAINST WHOM EXECUTION IS DIRECTED
There is a right to contribution or reimbursement if: more than a due
portion of the judgment is satisfied out of the proceeds of the sale of the
property of one of them, OR, one pays, without sale, more than his
proportion.
AND, if judgment is upon an obligation of one of them, as security for
another, and the surety pays the amount, or any part thereof, either by
sale of property or before a sale, he may compel repayment from the
principal.525
WHAT ARE THE OTHER REMEDIES OF THE JUDGMENT OBLIGEE IF
EXECUTION IS NOT CARRIED OUT OR JUDGMENT IS NOT SATISFIED
1.Examination of the judgment obligor concerning his property and income
before the court or a commissioner and proceedings may thereafter may
be had for the application of his property or income towards satisfaction of
judgment BUT no obligor can be required to appear before a court or
commissioner outside the province or city where he resides. 526
2.Examination of the obligor of the judgment obligor upon proof shown to
the satisfaction of the court that a person, corporation or other juridical
entity has property of the judgment obligor or is indebted to him, the Court
may by order require the person, corporation or juridical entity to appear
before the Court / commissioner and be examined concerning the same.
The service of the order shall bind all credits due the judgment obligor and
all money / property of the judgment obligor in the possession / control of
the person, corporation or juridical entity.
Notice of all proceedings may also be required by the court. 527
Obligor of judgment obligor may thereafter pay after writ of execution on
property has been issued, the amount of his debt or so much thereof as
524 Supra, Section 7, Rule 39
525 Supra, Section 35, Rule 39
526 Supra, Section 36, Rule 39
527 Supra, Section 37, Rule 39
132
may be necessary to satisfy the judgment and the sheriffs receipt shall
constitute sufficient discharge for the amount so paid or directed to be
credited by the judgment obligee on the execution 528
In relation to both remedies party or other person may be compelled to
appear by subpoena and failure to obey an order, subpoena or be sworn or
answer as a witness or subscribe to a deposition is punishable by
contempt. 529
3.Order for application of property and income to satisfaction of judgment.
it may include his property or money due the judgment obligor, not
exempt from execution, in his hands or other person, corporation or
juridical entity may be applied to satisfaction of judgment subject to any
prior rights over such property. ALSO, if upon investigation of current
income and expenses, the earnings of judgment obligor are more than
necessary for the support of his family, the court may order that judgment
be paid by monthly installments, failing in which he may be punished for
indirect contempt.530
4.Appointment of a receiver for the property of the judgment obligor, it
may also forbid a transfer or other disposition of or interference with the
property of the judgment obligor not exempt from execution. 531 Thereafter,
there can be a sale by the receiver upon order of ascertainable interest (or
the real estate itself) of a judgment obligor in real estate in the place
where proceedings are had as mortgagor / mortgagee or otherwise and if
his interest can be ascertained without controversy, the receiver may be
ordered to sell and convey such interest or real estate or the interest of the
obligor therein. All proceedings to be approved by the Court before
execution of the deed.532
In relation to the foregoing, IF IT APPEARS THAT A PERSON OR
CORPORATION, ALLEGED TO HAVE PROPERTY OF THE JUDGMENT OBLIGOR
DENIES OR CLAIMS INTEREST IN THE PROPERTY ADVERSE TO HIM, The
Court may: (1) order judgment obligee to institute an action against such
person or corporation for the recovery of such interest or debt (2) forbid a
transfer / disposition of such interest / debt within 120 days from notice of
the order (3) punish disobedience of such order as for contempt. The order
528 Supra, Section 39, Rule 39
529 Supra, Section 38, Rule 39
530 Supra, Section 40, Rule 39
531 Supra, Section 41, Rule 39
532 Supra, Section 42, Rule 39
133
may be modified or vacated at any time by the court that issued it, or by
the court in which the action is brought, upon terms as may be just. 533
WHAT IS TO BE DONE AFTER JUDGMENT IS SATISFIED
Entry of satisfaction of judgment by the Clerk of Court in Court Docket and
Execution Book upon RETURN OF WRIT INDICATING SATISFACTION / ON
ADMISSION OF SATISFACTION BY JUDGMENT OBLIGEE / COUNSEL534
It can also be entered upon demand of judgment obligor when judgment is
satisfied in fact OR upon notice / motion court may order entry without
admission535
EFFECT OF JUDGMENTS OR FINAL ORDERS
1.Effect of a judgment / final order rendered by a court in the Philippines,
having jurisdiction to pronounce the same.
(a) In case of a judgment / final order against a specific thing, or in respect
to probate of a will or administration of the estate of a deceased person, or
in respect to personal, political or legal condition / status of a particular
person or his relationship to another, the judgment or final order is
conclusive upon the title to the thing, the will, administration status or
relationship of the person. HOWEVER, probate or granting of letters of
administration shall only be prima facie evidence of the death of the
testator.536
(b) Other cases, judgment / final order is with RESPECT TO THE MATTER
DIRECTLY ADJUDGED OR AS TO ANY MATTER THAT COULD HAVE BEEN
RAISED IN RELATION THERETO is CONCLUSIVE BETWEEN THE PARTIES AND
THEIR SUCCESSORS IN INTEREST BY TITLE SUBSEQUENT TO THE
COMMENCEMENT OF THE ACTION OR SPECIAL PROCEEDING LITIGATING
FOR THE SAME THING, UNDER THE SAME TITLE AND IN THE SAME
CAPACITY.537
(c) In any other litigation between the same parties or their successors in
interest, that only is deemed to have been adjudged in a former
judgment / final order which appears on its face to have been so adjudged
533 Supra, Section 43, Rule 39
534 Supra, Section 44, Rule 39
535 Supra, Section 45, Rule 39
536 Supra, Section 47 (a), Rule 39
537 Supra, Section 47 (b), Rule 39
134
APPEALS
WHEN PERFECTED
As determined by Section 9, Rule 41:
1. If by notice of appeal, it is perfected upon the filing of the notice in due
time. The court loses jurisdiction upon perfection and expiration of the
time of appeal of other parties.
2. If by record on appeal, it is perfected upon approval of record on
appeal filed in due time. Court loses jurisdiction upon approval and
expiration of time to appeal of other parties.
In either case, prior to transmittal of the records, the court may issue
orders: (a)protection and preservation of the rights of the parties not
involving any matter litigated by the appeal (b)approve compromises (c)
permit appeals of indigent litigants (d)order execution pending appeal (e)
allow withdrawal of appeal.550 This is power is known as RESIDUAL
JURISDICTION
3.In both cases, DOCKET FEES / OTHER FEES are also to be paid to the
clerk of court of the court that rendered judgment. Proof payment of the
same shall be transmitted to the appellant court together with the
records / record on appeal. 551
a.Late payment of docket fees may be admitted when a party shows a
willingness to abide by the Rules by immediately paying the docket fee six
days after filing a notice of appeal and beyond the period for perfecting an
appeal.552
b.Where delay in the payment of docket fee was not due to a desire to
delay or defeat the ends of justice, late payment thereof which causes no
prejudice to anyone should not result in the dismissal of the appeal. 553
a.THE RECORD/RECORD ON APPEAL IS TRANSMITTED by the clerk of court
within 15 days from perfection, together with transcripts / exhibits, which
he will certify as complete. A copy of the transmittal shall be furnished the
parties.554
550 Supra, Section 4, Rule 40
551 Supra, Section 5, Rule 40
552 Mactan Cebu International Airport Authority v Mangubat, 312 SCRA 466
553 Lopez v Court of Appeals, 75 SCRA 401
554 Supra, Section 6, Rule 40
138
2.Appellate court docket fees / lawful fees shall be paid within the period
for taking an appeal to the clerk of court of the court that rendered
judgment BUT failure to pay is a ground for dismissal of the complaint 560
3.If Appeal is by NOTICE OF APPEAL, it must indicate parties, judgment or
final order appealed from, and include a statement of the material dates
showing timeliness of the appeal. 561 or if by RECORD ON APPEAL it must
comply with the requirements as previously discussed in an appeal from
the Municipal Trial Court to the Regional Trial Court. 562
4.PERFECTION OF APPEAL IS
AS DISCUSSED under
Rule 40. 563
Subsequently, it is the DUTY OF CLERK OF COURT OF THE LOWER COURT
within 30 days after perfection of all appeals to: (a) verify correctness of
the original record / record on appeal and make a certification as to
correctness (b) verify completeness of records transmitted to appellate
court (c) If incomplete, take necessary measures as may be required to
complete the records, availing of the authority that he or the court may
exercise for this purpose. (d) transmit the records to the appellate court.
(e) then furnish parties of his transmittal. 564
4.1IF EFFORTS TO COMPLETE FAIL, it shall be indicated in the letter of
transmittal which exhibits / transcripts are not included, the reasons why
they were not transmitted and the steps taken to make them available.
4.2 It is likewise required that the transcripts be transcribed 565 and that the
transmittal to include proof of payment of docket fees.
4.3Prior to transmittal of record / record on appeal, the court may motu
propio or on motion to dismiss the appeal for having been take out of time
OR for non payment of
docket and other lawful fees within the
566
reglementary period.
If transmitted already, the Court of Appeals may
dismiss.
5.Other procedural requirements and disposition of the appeal are
governed by Rule 44:
5.1 The title of the case shall remain, party appealing shall be referred to
as appellant / adverse party-appellee. 567 Counsel / guardians ad litem of
parties shall likewise be considered as such in Court of Appeals, when
others appear or are appointed, notice shall be filed and furnished adverse
parties.568
5.2If the RECORDS are not transmitted to the Court of Appeals within 30
days after perfection of the appeal, either party may file a motion with the
Regional Trial Court, with notice to the other, for transmittal. 569
5.3UPON RECEIPT BY THE COURT OF APPEALS, the clerk shall docket the
case and notify the parties. If appeal is by record on appeal, within 10 days
from receipt of notice, appellant must file with the clerk of court 7 clearly
legible copies of approved record on appeal and proof of service thereof to
adverse party of 2 copies. Any unauthorized, alteration, omission or
addition shall be ground for dismissal of the appeal. 570
The Clerk of the CA should also ascertain the completeness of the records.
If incomplete, he shall inform the court and recommend measures to
complete the record within the shortest possible time BUT if it cannot be
completed due to insuperable or extremely difficult circumstances. The
court, on its own or upon motion, may declare the record sufficient to
decide issues and explain reason for such declaration. 571
5.4ONCE DONE, Briefs are to be filed: (a) The Appellants Brief must be
filed within 45 days from notice that all evidence, documentary /
testimonial are attached to the record, 7 copies of the brief are to be filed
attaching proof of service of 2 copies to adverse party. 572 Where there are
several parties, each counsel representing one or more but not all may be
served with 1 copy. If several counsel represent one party, service may be
made on any one of them.573 The CONTENTS OF THE APPELLANTS BRIEF
are: (1) subject index (2)assignment of errors (3) statement of the case
(4)statement of facts (5)statement of issues (6) arguments (7) relief (8) if
not by record on appeal, an appendix, copy of judgment / final order
appealed. 574 (b) The Appellees Brief is to be filed within 45 days from
receipt of Appellants Brief. It is required that 7 copies be filed with proof
567 Supra, Section 1, Rule 44
568 Supra, Section 2, Rule 44
569 Supra, Section 3, Rule 44
570 Supra, Section 4, Rule 44
571 Supra, Sections 4 and 5, Rule 44
572 Supra, Section 7, Rule 44
573 Supra, Section 11, Rule 44
574 Supra, Section 13, Rule 44
142
6.If given DUE COURSE, the Supreme Court can: (a) Require elevation of
the records / or specified portions thereof within 15 days from notice 594 (b)
Require filing of pleadings, briefs, memoranda or documents as it may
deem necessary within periods / conditions it may consider appropriate
and impose sanctions for non-filing / non-compliance or unauthorized
filing. This ALSO applies to a determination as to whether it should be
dismissed or denied.595 The RULE APPLIES TO BOTH CIVIL / CRIMINAL
ACTIONS, except in cases where penalty is death, reclusion perpetua / life
imprisonment.596
7.The exceptions to the general rule that only questions of law may be
raised in a petition for review are:(a) when the conclusion is a finding
grounded entirely on speculation, surmises, or conjectures; (b) when the
inference made is manifestly mistaken, absurd, or impossible; (c) where
there is a grave abuse of discretion; (d) when the judgment is based on a
misapprehension of facts; (e) when the findings of fact are conflicting; (f)
when the Court of Appeals, in making its findings, went beyond the issue
of the case and the same is contrary to the admissions of both appellant
and appellee; (g) when the findings of the Court of Appeals are contrary to
those of the trial courts; (h) when the findings of facts are conclusions
without citation of specific evidence on which they are based; (i) when the
facts set forth in the petition as well as in the petitioners main and reply
briefs are not disputed by the respondents; (j) when the finding of fact of
the Court of Appeals is premised on the supposed absence of evidence but
is contradicted by the evidence on record; and (k) when the Court of
Appeals manifestly overlooked certain relevant facts not disputed by the
parties and which, if properly considered, would justify a different
conclusion.597
(d)By Petition for Review under Rule 43 in a case decided by the Regional
Trial Court sitting as a commercial court. 598
1.Applies primarily to appeals from the Court of Tax Appeals and other
quasi-judicial agencies to the Court of Appeals, but is not applicable to
judgments / final orders under the Labor Code. 599
594 Supra, Section 8, Rule 45
595 Supra, Section 7, Rule 45
596 Supra, Section 9, Rule 45
597 Martinez v Court of Appeals, 358 SCRA 38
598 A.M. No. 04-9-07-SC, September 14, 2004
599 Supra, Sections 1 and 2, Rule 43
147
2.The appeal can include questions of fact, law or mixed questions of law
and fact.600
3.The appeal shall be taken within fifteen (15) days from notice if the
award, judgment, and final order of resolution, or from the date of its last
publication, if publication is required by law for its effectivity, or of the
denial of the petitioners motion for new trial or reconsideration duly filed
in accordance with the governing law of the court or agency a quo. Only
one (1) motion for reconsideration shall be allowed. Upon proper motion
and the payment of the payment of the full amount of the docket fee
before the expiration of the reglementary period, the Court of Appeals may
grant an additional period of fifteen (15) days only within which to file the
petition for review. No further extension shall be granted except for the
most compelling reason and in no case to exceed fifteen (15) days. 601
4. All other procedural matters and requirements are similar to a Petition
for Review under Rule 42 EXCEPT that an appeal under this Rule shall not
stay the award, judgment, final order or resolution unless the Court of
Appeals deems otherwise.602
7.In summary judicial proceedings under the Family Code, there is no
reglementary period within which to perfect an appeal, precisely because
judgments rendered thereunder, by express provision of Section 247 of the
Family Code, are immediately final and executory. 603 Appeal by notice of
appeal is erroneous. The Court of Appeals should have dismissed as it had
no jurisdiction to review on appeal. Per Justice Panganiban, Certiorari under
Rule 65 is the remedy of the State.
PROCEDURE WITH THE COURT OF APPEALS
RULE 46 ORIGINAL CASES FILED WITH THE COURT OF APPEALS
Parties are to be designated as petitioner / respondent 604 and is to apply to
cases of Certiorari, Prohibition, Mandamus, Quo Warranto and to petitions
for annulment of judgment under Rule 47605
1.Failure of record on appeal to show on its face that appeal was taken
within period fixed by the Rules.
2. Failure to file notice of appeal or record on appeal within period within
the period prescribed by the Rules.
3. Failure to pay docket fees as provided under Section 5, Rule 40 and
Section 4, Rule 41.
4. Unauthorized alterations, omissions, additions on record on appeal as
provided under Section 4, Rule 44
5. Failure of appellant to serve and file required number briefs or
memoranda within provided time by these Rules
6. Absence of specific assignment of errors or page references to the
record as required by Section 13, paragraphs a,c,d, and f of Rule 44
7. Failure of appellant to take necessary steps for the correction or
completion of the records within time limited by the Court
8. Failure to appear at preliminary conference under Rule 48, or comply
with orders, circulars or directives of the Court without justifiable cause
9. The fact that order / judgment appealed from is not appealable. 618
DISMISSAL OF IMPROPER APPEAL
1.An appeal under Rule 41 from the Regional Trial Court to the Court of
Appeals raising only questions of law shall be dismissed as issues purely of
law are not reviewable by the Court of Appeals
2. An appeal by notice of appeal instead of petition for review from a
Regional Trial Court exercising appellate jurisdiction shall be dismissed
3. An appeal erroneously taken to Court of Appeals shall not be
transferred but shall be dismissed outright. 619
WITHDRAWAL OF AN APPEAL
618 Supra, Section 1, Rule 50
619 Supra, Section 2, Rule 50
151
An appeal may be withdrawn as of right at any time before the filing of the
appellees brief. Thereafter, only upon discretion of the Court. 620
RULE 51 - JUDGMENT
When submitted for judgment:
1. IN ORDINARY APPEALS:
a. Where no hearing on merits is held, upon filing of the last pleading,
brief, memoranda or expiration of period to file.
b. Where a hearing is held, upon termination of hearing or upon filing of
the last pleading, memoranda as may be required or permitted, or
expiration of period to file
2. IN ORIGINAL ACTIONS / PETITIONS FOR REVIEW
a. Where no comment is filed, upon expiration of the period to file
comment
b. Where no hearing, same as 1 (a)
c. Where hearing is held, same as 1 (b)621
3.Judgment is rendered by members of the court who participated in the
deliberations on the merits before assignment to a member for writing of
the decision.622
4.Participation of all 3 justices shall be necessary at deliberation and
unanimous vote shall be required for pronouncement. If not, the clerk shall
enter the vote of dissenting justices in the record. Thereafter, Chairman of
the division refers it to the Presiding Justice, who will designate 2 justices
by raffle to sit temporarily and to form a special division of five (5) justices.
The participation of all is required for deliberation. Concurrence of majority
is required for pronouncement.623
Note: That in rendering judgment, harmless errors or those which do not
affect the substantial rights of the parties 624 or errors that are not assigned
620 Supra, Section 3, Rule 50
621 Supra, Section 1, Rule 51
622 Supra, Section 2, Rule 51
623 Supra, Section 3, Rule 51
624 Supra, Section 6, Rule 51
152
Filing is by verified petition alleging therein with particularity, the facts and
the law relied upon for annulment as well as supporting petitioners good
and substantial cause of action / defense, as the case may be. Containing
(1) certified true copy of judgment / final order / resolution shall be
attached to the original copy intended for the court (2) affidavits of
witnesses (3) certification against forum shopping 652
WHAT THE COURT OF APPEALS WILL DO UPON FILING
1.If no substantial merit, it will be dismissed outright with specific
reasons for such dismissal.
2. If prima facie merit be found, it shall be given due course and
summons shall be served on the respondent. IF SO, procedure in ordinary
civil cases shall be followed but reception may be referred to a member of
the Court or a Regional Trial Court judge. 653
EFFECT OF JUDGMENT IN A PETITION FOR ANNULMENT
It shall set aside the questioned judgment / final order / resolution and
render the same null and void without prejudice to the refiling of the
original action in the proper court . However, where it is set aside by
reason of extrinsic fraud, the court on motion, may order the trial court to
try the case again as if a timely motion for new trial has been granted
therein.654
The prescriptive period for the refiling of the original action shall be
deemed suspended from the filing of such original action until finality of
the judgment of annulment. HOWEVER, the prescriptive period is or shall
not be suspended where extrinsic fraud is attributable to the plaintiff is
original action.655
SCOPE OF RELIEF
It may include award of damages, attorneys fees and other relief. If
already executed, restitution or other relief as justice / equity may
warrant.656
652 Supra, Section 4, Rule 47
653 Supra, Sections 5 and 6, Rule 47
654 Supra, Section 7, Rule 47
655 Supra, Section 8, Rule 47
656 Supra, Section 9, Rule 47
157
latter may be filed with Supreme Court, Court of Appeals, or the Regional
Trial Court
EXCEPTIONS TO REQUIREMENT AS TO MOTION FOR RECONSIDERATION
PRIOR TO FILING A PETITION FOR CERTIORARI UNDER RULE 65
(1)order is a patent nullity court a quo has no jurisdiction (2) questions
have been raised in certiorari have been duly raised and passed upon by
lower court (3)urgent necessity for resolution (4)where a motion for
reconsideration will be useless (5)petitioner is deprived of due process,
there is extreme urgency for relief (6) in criminal case, relief from order of
arrest is urgent, and grant of relief by trial court is not probable (7)
proceedings in lower court are a nullity for lack of due process (8) issue is
purely of law or where public interest is involved.
WHAT IS PROHIBITION
Special civil action against a tribunal, corporation, board, or person
exercising JUDICIAL QUASI JUDICIAL MINISTERIAL FUNCTION which is
alleged by an aggrieved party to be acting or about to act without
jurisdiction, in excess of its jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction and there is no appeal, or any
plain, speedy and adequate remedy in the ordinary course of the law
praying that judgment be rendered commanding the respondent to desist
from further proceeding in the action or proceeding therein or otherwise
granting such incidental reliefs as law and justice may require. 659
DISTINGUISHED FROM CERTIORARI
In CERTIORARI the object is to correct the respondents acts by annulling
proceedings, while in PROHIBITION it is to prevent the commission of an
act by stopping proceedings. In the former, the assailed acts have already
been done, while in the latter the assailed acts are about to be done or are
being done. In the former, the respondent performs judicial or quasijudicial, while in the latter, the respondent performs judicial, quasi-judicial
functions or ministerial functions.
WHAT CONSTITUTES JUDICIAL AND QUASI-JUDICIAL POWER
1.The exercise of judicial function is to determine what the law is, and what
the legal rights of parties are, with respect to a matter is controversy; and
whenever an office is clothed with that authority, and undertakes to
determine those questions, he acts judicially. 660
2.A quasi-judicial act or function is a judicial act or function performed by
one who is not a judge.
660 Municipal Council of Lemery, Batangas v Provincial Board of Batangas, 56 PHIL 260
160
defendant (respondent) to perform the required act must also be clear and
specific.661
2.Mandamus lies only to compel performance of a ministerial duty but not
to compel performance of a discretionary duty. 662 In granting mandamus,
respondent is commanded to perform the particular act or required to be
done and to pay the damages sustained by the petitioner by reason of the
wrongful acts of the respondent.
3.An act is ministerial when officer or tribunal performs in a given state of
facts, in a prescribed manner in obedience to the mandate of a legal
authority without regard to the exercise of his own judgment. If given the
authority to decide how and when, it is discretionary.
4. Mandamus does not lie to correct / enforce contractual obligations.
HOW DISTINGUISHED FROM CERTIORARI/PROHIBITION
In MANDAMUS, the respondent is exercising ministerial power and he has
unlawfully neglected to perform it or excluded a party from occupying or
enjoying the privilege of an office to which he is lawfully entitled and the
object is to COMPEL action, while in CERTIORARI, the respondent is
exercising judicial or quasi-judicial powers without jurisdiction or with
grave abuse of discretion amounting to an excess or lack of jurisdiction
and the object is to CORRECT. In PROHIBITION , the respondent is
exercising judicial, quasi-judicial or ministerial powers and he is acting or
about to act without jurisdiction or with grave abuse of discretion
amounting to an excess or lack of jurisdiction, and the object is to
PREVENT
WHEN MAY IT BE FILED
Not later than 60 days from notice of the assailed judgment, order or
resolution. BUT if a timely motion for reconsideration is filed, whether
required or not, the 60 days period shall be counted from notice of the
denial of the motion.663 An extension may be granted for compelling
reasons but in no case to exceed 15 days.
661 Enriquez, Jr v Bidin, 47 SCRA 183
662 Calderon v Sol, 215 SCRA 876
663 Supra, Section 4, Rule 65, as Amended by A.M. 00-2-03-SC
161
the action, he may bring it before a Regional Trial Court in Manila, the
Court of Appeals or the Supreme Court.674
4.WHEN FILED: within 1 year from accrual of the cause of action (ouster or
right to hold position) Damages if recoverable must be in another action
filed within 1 year from entry of judgment.675
5.PARTIES and CONTENTS of the petition: When the action is against the
person for usurping a public office, position or franchise, the petition shall
set forth the name of the person who claims to be entitled thereto, if any
with an averment of his right to the same and that the respondent is
unlawfully in possession thereof. All persons who claim to be entitled may
be made parties, and their respective rights may be determined in the
same action.676
6.REDUCTION OF TIME for pleadings and other proceedings may be
directed by the Court to secure the most expeditious determination of the
matters involved therein consistent with the rights of the parties. It can
also take precedence over other civil matters pending before the Court. 677
7.A JUDGMENT where the respondent is found guilty of usurping, intruding
into, or unlawfully holding or exercising a public office, position or franchise
shall state that he be OUSTED AND ALTOGETHER EXCLUDED THEREFROM,
and that the rights of the PETITIONER OR RELATOR, meaning the real party
in interest, be determined as justice requires. 678 It can also include a
judgment for costs679
8. The RIGHTS of a person entitled to public office include the right to
demand of the respondent all books and papers in his custody or control
appertaining to the office, otherwise he may be punished for
contempt.680Note: the damages aspect must be brought in another action.
DISTINGUISH BETWEEN QUO WARRANTO AND ELECTION PROTEST
In QUO WARRANTO the issue is the disqualification / ineligibility of the
proclaimed candidate, in a PROTEST the issue is an irregularity in the
election. If in the former, if the respondent is ineligible, the petitioner does
674 Supra, Section 7, Rule 66
675 Supra, Sections 10 and 11, Rule 66
676 Supra, Section 6, Rule 66
677 Supra, Section 8, Rule 66
678 Supra, Section 9, Rule 66
679 Supra, Section 12, Rule 66
680 Supra, Section 10, Rule 66
164
not occupy the position, while in the latter, the protestant can occupy the
position if he obtains a plurality of the votes.
DISTINGUISH BETWEEN QUO WARRANTO AS TO NATURE OF POSITION
In quo warranto involving an ELECTIVE POST the issue is the eligibility of
candidate elected, while in that involving an APPOINTIVE POST the issue is
the legality of appointment. In the former, if the respondent is found
ineligible, the found ineligible, 2nd highest vote getter, even if eligible
cannot be declared elected, while in the latter, the resolution shall
determine who has been legally appointed and declare who is entitled to
occupy the office.
RULE 56 PROCEDURE IN THE SUPREME COURT
ORIGINAL CASES
The cases cognizable by the Supreme Court are Certiorari, Mandamus,
Prohibition, Quo Warranto, Habeas Corpus, Disciplinary Actions against
members of the Judiciary and Attorneys, Cases affecting Ambassadors,
Public Ministers or Consuls.681
In resolving the cases, applicable rules in the Court of Appeals are also
applicable in the Supreme Court.682
APPEALED CASES
The only mode of appeal to the Supreme Court is by Petition for Review on
Certiorari, except in criminal cases where penalty is death, reclusion
perpetua, and life imprisonment683 NOTE: Except in appeal of criminal
cases where penalty is death, reclusion perpetua, life imprisonment,
appeal by Notice of Appeal, will be dismissed 684 AND if by certiorari from
the Regional Trial Court to the Supreme Court, raising issues of fact may be
referred to the Court of Appeals for decision or appropriate action.
Determination of the Supreme Court as to whether or not there are issues
of fact is FINAL.
167
writ is issued. It CAN TAKE PLACE even before he is summoned BUT note
that it cannot be enforced unless it is preceded or contemporaneously
accompanied by SERVICE OF SUMMONS, together with complaint,
application for attachment, affidavit, bond, order and the writ itself. This is
the PRIOR OR CONTEMPORANEOUS RULE. NOTE: An Alias summons
belatedly filed cannot be deemed to have cured the FATAL DEFECT in the
enforcement of the writ of preliminary attachment. 693
2.The prior or contemporaneous rule does not apply when: (a) Summons
could not be served personally or by substituted service despite diligent
efforts (b) Defendant is a resident but temporarily out of the PhiIippines (c)
Defendant is a non-resident of the Philippines (d) It is an action in rem
or quasi in rem
2.1 An IN REM action is directly against the thing to determine title to or
affect its interest, while a QUASI-IN-REM is a proceeding against the thing
for satisfaction a claim against a person by adjudication of rights against
property over which jurisdiction can be obtained
BY WHOM / HOW ENFORCED
1. By the sheriff, without delay and with all reasonable diligence
1.1 Note that Rule 57 does not provide any lifetime for a writ of preliminary
attachment unlike a writ of execution. 694 What the law provides are
enforcing the writ without delay and making sheriffs return thereon
without delay.
2. He may attach only such property not exempt from execution, as may
be sufficient to satisfy the demand UNLESS defendant makes a deposit or
give a counter bond in an amount equal to the bond fixed by the court or
to the value of the property attached. 695 NOTE: That the attachment shall
proceed nevertheless until there have been proceedings undertaken to
discharge the attachment. If found to be insufficient / or is not filed, a NEW
ORDER OF ATTACHMENT MAY BE APPLIED FOR.696
3.Attachment should be in accordance with the following:
693 Mangila v Court of Appeals, 387 SCRA 162
694 Roque v Court of Appeals, 93 SCRA 540
695 Supra, Section 5, Rule 57
696 Supra, Section 12, Rule 57
169
a. If real property, it requires the filing with the Office of the Register of
Deeds of a copy of the order together with notice that property or interest
therein is attached.
b. If personal property capable of manual delivery taking it and safely
keeping it in custody after issuance of proper receipt.
c. If stocks / shares / interest in companies, by leaving with the president
or managing agent a copy of the writ and notice.
d. If debts, credits, bank deposits and other like personal properties not
capable of manual delivery leaving with such persons owing debt,
holding credits or in possession a copy of the writ and notice.
e. If interest is in the estate of a decedent, by virtue of his being an heir,
legatee, or devisee, by serving the writ / notice on executor or
administrator.
f. If in custodia legis copy of writ is filed if the proper court or quasijudicial agency and notice served on the custodian of the property. 697
3.1Effect of attachment of debts, credits and similar personal property
persons who have them are liable to the applicant for the amount of such
credits UNTIL the attachment is discharged, judgment is satisfied or debts
are paid698 (Section 8)
3.2Effect if on property belonging the estate of the decedent, it will not
impair the powers of the executor / administrator or representative BUT
they shall report the attachment to the court when any petition for
distribution is filed and in the order made upon such petition the
property may be awarded to the heir / legatee / devisee , but the property
attached shall be delivered to the sheriff, subject to the claim of the heir,
legatee, devisee or person claiming under him. 699 (Section 9)
3.3THERE CAN ALSO BE EXAMINATION OF THESE PERSONS TO DETERMINE
IF THERE ARE PROPERTIES THAT MAY BE ATTACHED IN THEIR
POSSESSION700
Court where the action is pending. If pending in the Court of Appeals or the
Supreme Court, it may be issued by the Court or any member thereof. 712
GROUNDS FOR ISSUANCE
1. The applicant is entitled to the relief demanded, and the whole or part of
the relief consists in restraining the commission / continuance of the act/s
complained of, or in requiring the performance of an act/s, for a limited
period or perpetually.
2. The commission / continuance / non performance of the act/s during
litigation will probably work injustice to the applicant, OR
3. 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/s in
violation of the rights of the applicant respecting the subject of the action
and tending to render judgment ineffectual. 713
REQUISITES FOR ISSUANCE OF AN INJUNCTION
1.Existence of a right to be protected
2. Acts against which the injunction is to be directed are violative of the
right
These must clearly appear in the allegations in the complaint OTHERWISE
it may be ground for its outright denial for INSUFFICIENCY, which is
apparent in the application itself OR if already granted, may be
dissolved.714
MAY IT BE ISSUED EX-PARTE
Its issuance requires (1) a hearing (2) reception of evidence with
opportunity to cross (3) finding that prohibited acts are threatened to be
committed or that irreparable injury would be inflicted upon the applicant.
IF GREAT / IRREPARABLE INJURY WOULD RESULT BEFORE THEN: the Court
BY WAY OF EXCEPTION TO THE RULE ON NON EX-PARTE ISSUANCE (1) can
issue a Temporary Restraining Order for 20 days after a summary hearing
OR If it is of extreme urgency, it may issue ex-parte a 72 hour Temporary
712 Supra, Section 2, Rule 58
713 Supra, Section 3, Rule 58
714 Supra, Section 6, Rule 58
174
The court where action is pending or the Court of Appeals, the Supreme
Court or a member thereof. During appeal, the appellate court may allow
the application for the appointment to be filed in the court of origin, which
can also decide on the same to be subject to the control of said court. 721
1.A receiver of real or personal property, which is the subject of the action,
may be appointed by the court when it appears from the pleadings or such
other proof as the judge may require, that the party applying for such
appointment has:
(a) an actual interest in it, and (b) that (a) such property is in danger of
being lost, removed, or materially injured; or whenever it appears to be the
most convenient and feasible means of preserving or administering the
property in litigation.722
2.A receiver is a person appointed by the court or by a quasi-judicial
administrative agency, in behalf of all the parties for the purpose of
preserving and conserving the property and preventing its possible
destruction or dissipation, if it were left in the possession of any of the
parties. It is the duty of the receiver to administer the assets of the
receivership estate; and in the management and disposition of the
property committed to his possession, he acts in a fiduciary capacity and
with impartiality toward all interested persons. 723
3.A receiver is not an agent or representative of any party to the action.
He is an officer of the court exercising his functions in the interest of
neither plaintiff nor defendant, but for the common benefit of al the parties
in interest. He performs his duties subject to the control of the Court,
and every question involved in the receivership may be determined by the
court taking cognizance of the receivership proceedings.
Thus,
unauthorized contracts of a receiver do not bind the court in charge of
receivership. They are the receivers own contracts and not recognized by
the court as contracts of the receivership. 724
WHAT ARE THE POWERS OF THE RECIEVER
Subject to the control of the court, HE CAN: (a)Bring and defend actions in
his own name (b)Take and keep possession of the properties in controversy
721 Supra, Section 1, Rule 59
722 Commodities Storage & Ice Plant Corp. versus Court of Appeals, 274 SCRA 439
723 Arranza versus B.F. Homes, Inc., 333 SCRA 799
724 Pacific Mechandising Corp., versus Consolacion Insurance & Surety Co., Inc., 73 SCRA 564
177
knowledge, information or belief (c) that property has not been distrained
or taken for a tax assessment or payment of fine or seized under
execution, preliminary attachment or in custodia legis, or if so seized, it is
exempt from seizure / custody (d) actual market value NOTE: Not the
probable value as declared by the applicant. Should there be a dispute, it
is to be resolved by the Court.
2. Filing of bond in double the value of the property for return of the
property to the adverse party and payment of such sum as he may recover
from the applicant
3. UPON FILING OF AFFIDAVIT AND BOND, the writ of replevin shall issue
requiring the sheriff to forthwith take the property in custody. 734
3.1IN TAKING CUSTODY if concealed, he may demand delivery, if not
delivered, he may cause the building / enclosure to be broken. Once in
possession, it must be kept in a secure place and shall be responsible for
its delivery to the party entitled thereto upon receipt of his fees and
expenses.735
REMEDIES FOR RETURN OF PROPERTY
1.Objection to the sufficiency of the bond / surety but he cannot
immediately require delivery OR at any time before delivery to the
applicant, by filing a bond (redelivery bond) executed to the applicant in
double the value of the property as stated in the applicants affidavit.
MANNER OF DISPOSITION BY SHERIFF
1. If within 5 days after taking of the property, the adverse party does not
object to sufficiency of the bond / sureties OR he objects and the court
affirms its approval of the bond or approves a new bond OR if he requires
return but his bond is objected to (adverse party) and he does not
forthwith file an approved bond THE SHERIFF SHALL DELIVER THE
PROPERTY TO THE APPLICANT IF FOR ANY REASON IT IS NOT DELIVERED,
IT MUST BE RETURNED TO ADVERSE PARTY.736
2. If claimed by a 3 rd PARTY by affidavit, the sheriff is not bound to keep
and deliver the property unless applicant / agent on demand of the sheriff
files a bond approved by the Court to indemnify the 3 rd party claimant in a
734 Supra, Sections 2 and 3, Rule 60
735 Supra, Section 4, Rule 60
736 Supra, Section 6, Rule 60
180
sum not less than the value of the property under replevin. In case of
disagreement as to value, the court shall determine the same. Note that
no action on the bond may be enforced unless filed within 120 days from
filing.
The sheriff shall not be liable for damages for the taking and keeping of
the property to any such 3 rd party if the bond is filed. Nothing also prevents
the 3rd party claimant or the applicant from vindicating their rights or
claims in the same action or in a separate action.
If writ is issued in the name of RP, no bond is required and the sheriff is
to be represented by the SOLGEN and damages so adjudged are paid out
of the National Treasury. 737
3.SHERIFF must make return within 10 days after taking of the property. 738
4.The JUDGMENT BY THE COURT shall include a determination who has a
better right of possession to and value of the property and render
judgment in the alternative for delivery thereof to the party entitled or its
value in case delivery cannot be made, and also for damages as either
party may prove, with costs. Any amount awarded a party upon any bond
shall be claimed, ascertained and granted as provided by Section 20 of
Rule 57.739
5.A WRIT OF REPLEVIN may be served anywhere in the PI
RULE 61 SUPPORT PENDENTE LITE
WHEN FILED AND HOW
At the commencement of the proper action or proceeding or at any time
prior to a judgment or final order a verified application may be filed by a
party stating the grounds for the claim and the financial conditions of both
parties, accompanied by affidavits, depositions, or other authentic
documents in support thereof.740
1.It is also available in criminal cases when: (a) child is born to offended
party allegedly because of the crime (b) civil liability arising from the
737 Supra, Section 7, Rule 61
738 Supra, Section 8, Rule 61
739 Supra, Sections 9 and 10, Rule 61
740 Supra, Section 1, Rule 61
181
criminal action includes support for the offspring (c) civil aspect has not
been waived, reserved or instituted prior to filing of criminal action. This
application may be filed successively by the offended party, her parents,
grandparents, guardian or the State in the corresponding criminal case
during its pendency.741
PROCEDURE:
1. Upon filing of verified application it shall be served on the adverse
party, who shall have 5 days to comment unless a different period is fixed
by the court. It shall also be verified and accompanied by affidavits,
depositions, authentic documents.742
2. Hearing shall then be conducted no more than 3 days after comment is
filed or the period expires.743
3. Court shall determine provisionally the pertinent facts and render such
orders as justice and equity may require, having due regard to the
probable outcome of the case and such other circumstances.
3.1 IF GRANTED, it shall fix the amount of money to be provisionally paid
or such other forms or support as should be provided taking into account
the necessities of the applicant AND resources or means of the adverse
party AND the terms or mode for providing support.
3.2 IF DENIED, the principal case shall be tried and decided as early as
possible.744
HOW ENFORCED
If adverse party fails to comply, the court shall, motu propio or on motion,
issue an order of execution without prejudice to his liability for contempt.
ALSO, if support be paid by a 3rd person, after due notice and hearing in
the same case, he may obtain a writ of execution to enforce his right of
reimbursement against the person ordered to provide support. 745
RESTITUTION
741 Supra, Section 6, Rule 61
742 Supra, Section 2, Rule 61
743 Supra, Section 3, Rule 61
744 Supra, Section 4, Rule 61
745 Supra, Section 5, Rule 61
182
IF upon judgment / final order The court finds that the person who has
been providing support is not liable therefor it shall order the recipient to
return the amounts paid plus interest from 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 support. Should the
recipient fail to reimburse, the person who provided the same, may, in a
separate action, seek reimbursement thereof from the person obliged to
give support.746
SPECIAL CIVIL ACTIONS
RULE 62 - INTERPLEADER
WHEN PROPER
Whenever conflicting claims upon the same subject matter are or may be
made against a person who claims no interest whatever in the subject
matter, or an interest which in whole or in part is not disputed by the
claimants, he may bring an action against the conflicting claimants to
interplead and litigate their several claims among themselves. 747
PROCEDURE:
1. Upon filing of the complaint, the court shall issue an order requiring the
conflicting claimants to interplead with one another. If the interest of
justice requires, it may order the subject matter be paid or delivered to the
court.748
2. Summons shall then issued to claimants, together with a copy of the
complaint and order.749
3. Within the time for the filing of an answer, motions to dismiss may be
filed, if denied the claimant must file an answer within the period
remaining but in no case less than 5 days. If not, he may be declared in
default and thereafter the court may render judgment barring him from
any claim in respect of the subject matter. They may also file counterclaims, cross-claims, 3rd party claims, and other responsive pleadings. 750
746 Supra, Section 7, Rule 61
747 Supra, Section 1, Rule 62
748 Supra, Section 2, Rule 62
749 Supra, Section 3, Rule 62
750 Supra, Sections 4 and 5, Rule 62
183
4. After the pleadings of the conflicting claimants have been filed, pre-trial
conducted, the court shall proceed to determination and adjudication of
their respective claims. The docket and other lawful fees paid by a party
who filed the complaint, as well as costs / expenses of litigation shall
constitute a lien or charge upon the subject matter, unless the court orders
otherwise.751
RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES
WHAT IS DECLARATORY RELIEF
It is a special civil action brought before the Regional Trial Court ONLY by a
person interested in a DEED, WILL, CONTRACT or OTHER WRITTEN
INSTRUMENT, or whose rights are affected by a STATUTE, EXECUTIVE
ORDER OR REGULATION, ORDINANCE or any government regulation
BEFORE BREACH THEREOF, asking the court to DETERMINE ANY QUESTION
OF CONSTRUCTION OR VALIDITY arising, and for a declaration of his rights
OR duties thereunder.752
1.ACTIONS for REFORMATION OF
INSTRUMENT, TO QUIET TITLE OR
REMOVE CLOUDS THEREFROM, or to CONSOLIDATE OWNERSHIP UNDER Art
1607 NCC may be brought as civil actions for declaratory relief.
2. NOTE THAT AN ACTION FOR DECLARATORY RELIEF may be brought only
before a breach / violation of the statute or instrument. If already brought
AND a breach / violation is committed before final termination, it is
converted into an ordinary civil action. The parties may then file such
pleading as may be necessary or proper. 753
WHO ARE THE ALLOWED PARTIES
1.All persons who have or claim an interest which would be affected by the
declaration shall be made parties and NO DECLARATION shall as except as
otherwise provided in these RULES prejudice the rights of persons not
parties to the action.
WHAT IS EXPROPRIATION
The taking of private property for public purpose upon the payment of just
compensation. It is also known as exercise of the power of eminent
domain.
HOW EXERCISED
Filing of a verified complaint which shall state with certainty the right and
the purpose of expropriation, describing the real / personal property
sought to be expropriated, joining as defendants all persons claiming /
owning or occupying any part thereof or interest therein. Note that the
subject can be either real / personal property. 759
759 Supra, Section 1, Rule 67
186
WHERE FILED
Regional Trial Court, regardless of value as it is an action which is
incapable of pecuniary estimation.
UPON FILING, MAY PLAINTIFF TAKE POSSESSION
Plaintiff, upon making a deposit in or with an authorized government
depository of an amount equal to the assessed value of the property for
purposes of taxation may take possession of the real property. If it involves
personal property, its value as provisionally ascertained. 760
1.Note that under Section 19 of the Local Government Code, the LGU can
take possession upon deposit with the court of FIFTEEN PERCENT of the
Fair Market Value based on the current tax declaration.
UPON FILING AND SERVICE
1. The DEFENDANT MAY FILE: (a) A Manifestation that he has no
objection or defense to the action, OR (b) An Answer stating all objections
and defenses to the taking of the property. No, counterclaim, cross claim or
3rd party complaint shall be allowed in the answer or any subsequent
pleading.761
2.AFTER, the case now proceeds to a determination of:
2.1 Authority of the plaintiff to expropriate. Thereafter, the court may
dismiss the petition or issue an order of expropriation. The order is
appealable BUT SHALL NOT PREVENT DETERMINATION OF JUST
COMPENSATION,IF GRANTED AND PLAINTIFF CANNOT DISMISS OR
DISCONTINUE EXCEPT ON TERMS THAT COURT DEEMS JUST AND
EQUITABLE as there is entry already.762
2.2NOTE the right of plaintiff to enter into the property and appropriate
shall not be DELAYED by an APPEAL. But if appellate court determines that
no right of expropriation exists. It shall order the RTC to enforce restoration
and determine the damages that the defendant sustained. 763
1.Upon motion, the court shall order the property sold in the manner
prescribed under Rule 39, such SALE shall not affect the rights of persons
holding prior liens/encumbrances on the property or parts thereof.
2. Upon motion, sale shall be CONFIRMED, and such shall operate to
divest the rights in the property of all the parties to the action and to vest
their rights in the purchaser, subject to such rights of redemption as may
be allowed by law.
2.1 Note that when judicial foreclosure is resorted to there is no right of
redemption EXCEPT when the law allows a redemption. EXAMPLE: Section
47 of the Philippine General Banking Law which allows a one year period
for redemption.
3. Upon finality of the order of confirmation or upon expiration of the
period of redemption when allowed by law, the purchaser at auction is
entitled to possession unless a third party is holding it adversely to the
judgment obligor, in which case, the purchaser at the auction sale may
secure a writ of possession from the Court ordering the sale. 772
3.1What is to be registered is the order of confirmation. If there is no right
of redemption, the title of the mortgagor is cancelled and a new one issued
in the name of the purchaser.
3.2 If with right of redemption, the annotation is to await final deed of sale
executed by Sheriff.773 (Section 7)
4.PROCEEDS OF THE SALE shall, after deducting the costs, be paid to the
persons foreclosing the mortgage. If there be a balance or residue, it shall
be paid to the junior encumbrancers, in the order of priority ascertained by
the Court, if none or there still be a balance or residue after payment, to
the mortgagor.774
5.If debt is not all due, as soon as a sufficient portion of the property has
been sold to pay the total amount, the sale shall terminate. Afterwards, no
more shall be sold, BUT if property cannot be sold in portions, the entire
property is to be sold with rebate of interest if proper when the full debt is
paid.775
772 Supra, Section 3, Rule 68
773 Supra, Section 7, Rule 68
774 Supra, Section 4, Rule 68
775 Supra, Section 5, Rule 68
190
property or portion sold in the purchaser free from any interest of the
parties to the action.785Judgment may include recovery from the other of
just share of rents and profits received by the other from the real estate in
question786 and costs equitably apportioned among the parties. 787
194
state the facts of direct personal knowledge of the affiant which are
admissible in evidence and must indicate their competence to testify. A
violation may subject the party or counsel to disciplinary action and will be
cause to expunge the inadmissible affidavit or portion thereof from the
record.799
8.The following petitions, motions, or pleadings are PROHIBITED and shall
not be allowed to be filed:
(a) Motion to dismiss the complaint except on the ground of lack of
jurisdiction over the subject matter, or failure to comply with the preceding
section pertaining to referral to the Lupon for conciliation. The case may
then be dismissed WITHOUT PREJUDICE and may be revived upon showing
of compliance.800 The filing of a motion to dismiss after an answer is filed
does not violate the rules. What is proscribed is a motion to dismiss that
stops the running of the period for the filing of an answer and cause undue
delay.801
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for
reopening of trial;
(e) Motion for extension of time to file pleadings, affidavits or any other
paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
799 Supra, Section 14, Rule 70, Article II, Section 20, Rules on Summary Procedure
800 Supra, Section 12, Rule 70, Article IV, Section 18, Rules on Summary Procedure
801 Heirs of Olivas v Flor, 161 SCRA 393
198
13.If judgment is rendered against the defendant, the execution shall issue
immediately upon motion, unless an appeal has been perfected AND the
defendant to stay execution files a sufficient supersedeas bond if there are
rentals in arrears809, approved by the court and executed in favor of the
defendant to pay rents, damages and costs accruing down to the time of
the judgment appealed from, AND UNLESS, during the pendency of the
appeal, he deposits with the appellate court the amount of the rent due
from time to time under the contract or the reasonable value for use and
occupation adjudged by the court on or before the 10 th day of each
succeeding month or period.810
806 Supra, Sections 16 and 18, Rule 70
807 Supra, Section 17, Rule 70
808 Supra, Section 18, Rule 70
809 Supra, Section 8, Rule 70 and De Laureano v. Adil, 72 SCRA 146
810 Supra, Section 19, Rule 70
200
Note that there is no necessity for a motion for the court to fix the
supersedeas bond as the amount of the same can be ascertained from the
judgment. Also, if the records of the case have already been transmitted to
the appellate court, the supersedeas bond may be filed with the appellate
court.811
14.The judgment of the appellate court shall however be subject to
immediate execution without prejudice to a further appeal 812
Note however that if a settlement is not complied with, the injured party
may bring an action against the offending party to recover the original
amount of his claim, thereby rescinding the compromise under Article
2041 of the Civil Code which was held to qualify Article 2037 of the Civil
Code as to the effect of a compromise being considered as constituting res
judicata.813
REVISED RULE ON
SUMMARY PROCEDURE
RESOLUTION OF THE COURT EN BANC DATED OCTOBER 15, 1991
PROVIDING FOR THE REVISED RULE ON SUMMARY PROCEDURE FOR
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES,
MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS.
Pursuant to Section 36 of the Judiciary Reorganization Act of 1980 (B.P. Blg.
129) and to achieve an expeditious and inexpensive determination of the
813 Chavez v Court of Appeals, GR 159411, March 18, 2005
203
The
only
pleadings allowed to be filed are the complaints, compulsory counterclaims
and cross-claims pleaded in the answer, and the answers thereto.
B.
verified.
SEC. A. Duty of court. After the court determines that the case falls
under summary procedure, it may, from an examination of the allegations
therein and such evidence as may be attached thereto, dismiss the case
outright on any of the grounds apparent therefrom for the dismissal of a
civil action.
205
206
Sec. 11. How commenced. The filing of criminal cases falling within
the scope of this Rule shall be either by complaint or by information;
Provided, however, That in Metropolitan Manila and in Chartered Cities,
such cases shall be commenced only by information, except when the
offense cannot be prosecuted de officio.
208
COMMON PROVISIONS
SEC. 18 Referral to Lupon. Cases requiring referral to the Lupon for
conciliation under the provisions of Presidential Decree No. 1508 where
there is no showing of compliance with such requirement, shall be
dismissed without prejudice, and may be revived only after such
requirement shall have been complied with. This provision shall not apply
to criminal cases where the accused was arrested without a warrant.
SEC. 19. Prohibited pleadings and motions. The following pleadings,
motions, or petitions shall not be allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint or to quash the complaint or
information except on the ground of lack of jurisdiction over the subject
matter, or failure to comply with the preceding section;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for
reopening of trial;
NOTES: A motion for reconsideration can be filed when the case is already
pending before the appellate court. (Jakihaca vs.Aquino, 181 SCRA 67). A
motion for reconsideration of rulings or pertaining to other incidents, NOT
OF THE JUDGMENT, is allowed ( Lucas vs. Fabros, 324 SCRA 1)
(e) Motion for extension of time to file pleadings, affidavits or any other
paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court;
211
RULE 71 CONTEMPT
WHAT IS CONTEMPT
Willful disobedience or open disrespect of the orders, authority, or dignity
of a court or judge acting in judicial capacity by disruptive language or
conduct or by failure to obey the orders of the court
KINDS OF CONTEMPT
1. DIRECT CONTEMPT consists of misbehaviour in the presence of or so
near a court as to obstruct or interfere with the proceedings before the
same, it includes, disrespect, offensive personalities against others, refusal
to be sworn or answer as a witness, or to subscribe to an
affidavit/deposition when lawfully required to do so.
This kind of contempt may be SUMMARILY ADJUDGED and be punished by
a fine not exceeding P 2,000.00 or imprisonment of not exceeding 10 days
or BOTH if it be by a Regional Trial Court or a fine not exceeding P 200.00
or imprisonment not exceeding 1 day or BOTH if it be by a Municipal Trial
Court.
The remedy therefrom is certiorari/ prohibition, in which case the
judgment is suspended pending the petition provided the petitioner files a
bond fixed by the court which rendered the judgment and conditioned that
he will abide by and perform the judgment should the petition be decided
against him. 815
815 Supra, Sections 1 and 2, Rule 71
213
related to the principal action pending before the court, the petition shall
so allege such fact but it shall be DOCKETED, HEARD AND DECIDED
SEPARATELY, unless the court in its discretion orders consolidation of the
charge and principal action for joint hearing and decision. 818
2.2The charge shall be filed in the Regional Trial Court if the contempt is
committed against it or a court of equal or higher rank or against an officer
appointed by it. If against a lower court, it may be filed in the Regional Trial
Court in the place where the lower court sits or in such lower court, subject
to appeal to the Regional Trial Court. 819
This kind of contempt is punishable by a fine not exceeding P 30,000.00 or
imprisonment not exceeding 6 months or both, if committed against a
Regional Trial Court. If against a Municipal Trial Court, by a fine not
exceeding P 5,000.00 or imprisonment not exceeding 1 month. If it
consists in a violation of a writ of injunction, TRO or status quo order, he
may also be ordered to make complete restitution. A writ of execution may
be issued to enforce a fine.820 If it consists in refusal or omission to do an
act within his power to perform, he may be imprisoned by order of the
court until it is performed.821
2.3A judgment for indirect contempt is appealable to the Regional Trial
Court, but execution shall not be suspended without the filing of a bond. 822
2.4An order dismissing a contempt charge or exoneration from such, is not
appealable.823
OTHERS
1.If no hearings are held forthwith and the respondent has been taken into
custody, he may be released upon payment of a bond, but if he fails to
appear on the hearing of the charge, he may be ordered arrested and the
bond forfeited.824
818 Supra, Section 4, Rule 71
819 Supra, Section 5, Rule 71
820 Supra, Section 7, Rule 71
821 Supra, Section 8, Rule 71
822 Supra, Section 11, Rule 71
823 In Re, Mison, Jr, 33 SCRA 30
824 Supra, Sections 6 and 9, Rule 71
215
2.If already imprisoned, the court may discharge the respondent if public
interest will not be prejudiced by the release. 825
APPLICABILITY OF THE RULE
The rules apply to persons, entities, bodies or agencies exercising quasijudicial powers or shall have suppletory effect to their rules. The RTC of the
place where the contempt is committed shall have jurisdiction. 826
DEFINING CRIMINAL AND CIVIL CONTEMPT
It is criminal contempt when the purpose is to vindicate the authority of
the court and protect its outraged dignity. It is civil contempt when there is
failure to do something ordered by the court to be done for the benefit of
another party.827
In fact, it has been declared that the motion for extension of time within
which a party may plead is not a litigated motion where notice to the
adverse party is necessary to afford the latter an opportunity to resist the
application, but an ex parte motion made to the court in behalf of one or
the other of the parties to the action, in the absence and usually without
the knowledge of the other party or parties. (Commercial Union Assurance
Company Limited, et. al. vs. Lepanto Consolidated Mining Company, et. al.,
L-43342. October 30, 1978, 86 SCRA 79, 95-96; Amante vs. Sunga, et. al.,
L-40491, May 28, 1975, 64 SCRA 192, 195)
Therefore, as long as it is filed within the period sought to be extended, a
request for extension of time may be filed ex parte and granted without
the usual formalities applicable to motions in general. (Moya vs. Barton, 76
Phil. 831)