Civil Procedure - MD

A civil action may either be ordinary or special.
Both are governed

by the rules for ordinary civil actions, subject to the specific rules
REMEDIAL LAW REVIEWER prescribed for a special civil action. (n)
(b) A criminal action is one by which the State prosecutes a person

for an act or omission punishable by law. (n)
PART III OF IX
(c) A special proceeding is a remedy by which a party seeks to
establish a status, a right, or a particular fact. (2a, R2)
ORDINARY CIVIL ACTIONS Memorize!
Civil action one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong
MARK DE LEON, JD 2001
Criminal action one by which the State prosecutes a person for an act
or omission punishable by law.
Special proceeding a remedy by which a party seeks to establish a

GENERAL PROVISIONS status, a right, or a particular fact
Special civil actions are called so because special rules govern.

RULE 1
Sec. 4. In what cases not applicable. These Rules shall not apply
Section 1. Title of the Rules. xxx to election cases, land registration, cadastral, naturalization and
insolvency proceedings, and other cases not herein provided for,
Sec. 2. In what courts applicable. These Rules shall apply in all except by analogy or in a suppletory character and whenever
the courts, except as otherwise provided by the Supreme Court. (n) practicable and convenient. (R143a)
Sec. 3. Cases governed. These Rules shall govern the procedure Cases where the Rules apply only by analogy or suppletorily
to be observed in actions, civil or criminal, and special proceedings.
1. election cases
(a) A civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a 2. land registration
wrong. (1a, R2) 3. cadastral
4. naturalization and
5. insolvency proceedings, and
6. other cases not herein provided for
Sec. 5. Commencement of action. A civil action is commenced by CASES

the filing of the original complaint in court. If an additional defendant
is impleaded in a later pleading, the action is commenced with regard
to him on the date of the filing of such later pleading, irrespective of CABRERA V. TIANO, 8 SCRA 542 (1963)
whether the motion for its admission, if necessary, is denied by the
FACTS: Josefina Potestas Cabrera and her sister Cresencia Potestas
court. (6a)
Omulon filed an action for Partition and Recovery of Real Estate, with
A civil action is commenced by the filing of the original Damages against Mariano Tiano. Their complaint alleged that they were
complaint in court. entitled to a portion of the land, since Josefina did not sign the Deed of
Sale while Cresencia was a minor at the time of the sale.
Where the complaint is filed by registered mail, it is the actual
date of mailing that is considered as the date of filing. Tiano claimed that he was the absolute owner of the land by acquisitive
prescription of 10yrs, from the date of purchase 02jul47. Plaintiffs
However, where the docket fee is subsequently paid, the date commenced this case on 20jun57. Court issued summons on 21jun57.
of such payment or the mailing of said amount thereof shall be Defendant received the summons on 02jul57 which was incidentally, the
considered as the date of the filing of the complaint. (Sun Ins. end of the 10yr prescriptive period.
V. Asuncion).
The trial court declared that the plaintiffs are entitled each to 1/8 of the
In a cse filed for replevin and for purposes of determining the
property in question plus P1,000 damages for both of them and P200
jurisdiction of the ocurt, the value of the personal property
attorneys fees. Defendant moved for recon and was denied.
involved is controlling; the damages and attorneys fees
claimed are merely incidental. Defendant red to SC contending that prescription has already set in. He
insists that the period should be counted from the date the summons
The filing if the complaint in court tolls the running of the
was served on him. He claims that the judicial summons, which could
prescriptive period.
civilly interrupt his possession, was received by him only of 02jul57.
Sec. 6. Construction. These Rules shall be liberally construed in
order to promote their objective of securing a just, speedy and HELD: Civil actions are deemed commenced from date of the filing and
inexpensive disposition of every action and proceeding. (2a) docketing of the complaint with the Clerk of Court, without taking into
account the issuance and service of summons. Commencement of the
Memorize Sec.6. (Just, Speedy, Inexpensive catch-all answer in the suit prior to the expiration of the prescriptive period, interrupts the
bar!) prescription period.
Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM Mark de Leon, JD 2001 -2-
SUN INSURANCE V. ASUNCION, 170 SCRA 274 (1989) HELD: 1) It is not simply the filing of the complaint or appropriate
initiatory pleading, but the payment of the prescribed docket fee, that
FACTS: Petitioner Sun Insurance filed a complaint with the Makati RTC vests a trial court with jurisdiction over the subject matter or nature of
for the consignation of a premium refund on a fire insurance policy with the action. Where the filing of the initiatory pleading is not accompanied
prayer for the judicial declaration of its nullity against private respondent by payment of the docket fee, the court may allow payment of the fee
Manuey Uy Po Tiong. Private respondent was declared in default for within a reasonable time but in no case beyond the applicable
failure to file the required answer within the reglementary period. prescriptive or reglementary period. 2) Permissive counterclaims, third
party claims and similar pleadings, shall not be considered filed until and
Private respondent filed a compliant in the Quezon City RTC for the unless the filing fee prescribed therefore is paid. The court may also allow
refund of premiums and the issuance of a writ of preliminary attachment. payment of said fee within a reasonable time but also in no case beyond
Only the amount of P210 was paid by private respondent as docket fee its applicable prescriptive or reglementary period. 3) If the judgment
which prompted petitioner to raise objection. Upon order of the SC, the awards a claim not specified in the pleading, or if specified the same has
case was assigned to a different branch due to under-assessment of been left for determination by the court, the additional filing fee therefor
docket fees. shall constitute a lien on the judgment.
The case was thereafter assigned to Judge Asuncion who required the Escolin: There are some compulsory counterclaim that needs payment of
parties to comment on the Clerk of Courts letter-report signifying her docket fees, and some which does not.
difficulty in complying with the SC Resolution since the pleadings filed by
private respondent did not indicate the exact amount sought to be
recovered. HODGES V. CA, GR 87617, 184 SCRA (1990)
Private respondent filed a Re-Amended complaint stating therein a claim FACTS: Gellada filed an action for damages against Hodges in the Iloilo
of not less than 10M as actual compensatory damages in the prayer. CFI for some alleged defamatory statements of defendant against
However, the body of the amended complaint alleges actual and plaintiff. The defendant pointed out that the court cannot acquire
compensatory damages and attys fees in the total amount of about jurisdiction over the case unless the corresponding docket fee is paid.
P44,601,623.70 CFI ruled against Hodges. CA affirmed CFI ruling.
Judge Asuncion issued another Order admitting the second amended HELD: SC reversed CA ruling. Filing fees should be paid in full for the
complaint and stating that the same constituted proper compliance with court to acquire jurisdiction. Partial payment of docket fees prevents the
the SC Resolution. Petitioner filed a petition for Certiorari with the CA court from acquiring jurisdiction and any proceeding undertaken
questioning the order of Judge Asuncion. Private respondent filed a thereafter is null and void.
supplemental complaint alleging an additional claim of P20M as
damages bringing the total claim to P64,601,623.70. CA denied petition
and granted writ of prelim attachment. SPOUSES DE LEON V. CA, 287 SCRA (1998)
FACTS: Private respondent Elayda filed in the Quezon City RTC a payment of the docket fee regardless of the actual date of filing in court.
complaint for annulment or rescission of a contract of sale of 2 parcels of Henceforth, the amount sought to be recovered should be stated both in
land against petitioners. The trial court held the fees should be based on the body of the complaint and in prayer.
the value of the property. CA reversed and held that the flat rate of P400
should be charged. Escolin: The SC in Manchester prohibited plaintiffs in civil cases from not
specifying the amount of damages.
HELD: An action for rescission of contract should be treated similar to an
action for specific performance. An action for rescission of contract is one
which cannot be estimated and therefore the docket fee for its filing MANUEL V. ALFECHE, 259 SCRA 475 (1996)
should be the flat amount for actions incapable of pecuniary estimation,
regardless of the value of the real property which is the subject of the Facts: Manuel filed a libel case against writer/author and editors of the
contract. newspaper Panay News. RTC found 3 people to be guilty but acquitted a
fourth accused. However the civil indemnity by way of moral damages
were dismissed for lack of jurisdiction. Complainant in a libel case, where
MANCHESTER DEVELOPMENT V. CA, 149 SCRA 562 (1987) the information stated the amount of moral damages, did not pay filing
fees for the impliedly instituted civil action.
Facts: Manchester filed an action for torts and damages and specific
performance. Body of the complaint specified amount of damages, but Held: When a civil action is deemed impliedly instituted with the
the prayer did not. Complaint was amended deleting all amounts. Only criminal, when the amount of damages, other than actual, is alleged in
after court order did complainant specify the amount, but still only in the the complaint or information filed in court, then the corresponding filing
body, not in the prayer. Said amended complaint was admitted. fees shall be paid. However, when the amount of damages is not so
alleged, filing fees need not be paid and shall simply constitute a first lien
Held: In civil cases, all pleadings should specify in both the body and on the judgment, except in an award for actual damages (in every crime
prayer the amount of damages sought. The court does not acquire there is also civil liability. These are the actual damages. Thus they
jurisdictions until the proper docket fee has been paid. Where an action is should not be charged docket fees). In no case shall filing fees for actual
both for specific performance and damages, the docket fees must be damages be collected.
based on the total damages sought to be recovered, even if it is not
spelled out in the prayer. Where the prayer clearly shows that the action Manuel case is applicable to civil cases impliedly instituted with criminal
was one for damages, there can be no honest difference of opinion as cases. In purely civil actions, the Manchester ruling applies.
to the amount of filing fees. Where payment was insufficient and there
de Leon: Note that under the Criminal Procedure Rules of 2000, filing
was no honest difference of opinion as to the correct amount of filing
fees for actual damages may be collected in case of cases for violation of
fees, the court never acquired jurisdiction over the original complaint.
BP 22.
There was thus no complaint to amend. Docket fees must be based on
the original, not amended complaint. A case is deemed filed only upon
CIVIL PROCEDURE Section 1. Ordinary civil actions, basis of. Every ordinary civil
action must be based on a cause of action. (n)
Sec. 2. Cause of action, defined. A cause of action is the act or

ORDINARY CIVIL ACTIONS (RULES 2-5) omission by which a party violates a right of another. (n)
Memorize!
CAUSE OF ACTION
cause of action act or omission by which a party violates a right of
KINDS OF ACTIONS another.
Elements of cause of action:

REAL OR PERSONAL ACTION
1. The legal right of the plaintiff
Real action the subject matter of the action is real property (disputes
about ownership, possession, and interest concerning real property) (e.g. 2. The correlative obligation of the defendant to respect that right;
foreclosure of real mortgage)
3. An act or omission of the defendant in violation of said legal
Personal action the subject matter of the action is personal property
(e.g. foreclosure of chattel mortgage)
Basis of cause of action:
ACTION IN PERSONAM, IN REM, AND QUASI IN REM A cause of action must be based on a source of obligation: law,
Action in personam the decision is enforceable only against the parties contract, quais-contract, delict or quais-delict.
(no extra-territorial service of summons)
The existence of a cause of action is determined by the
Action in rem the decision is enforceable against the whole world (there allegations in the complaint
is extra-territorial service of summons thru publication)
The remedy of the defendant against lack of cause of action is to
Action quasi in rem - A real action may still be an action in personam. file a motion to dismiss under Section 1(g), Rule 16.
de Leon: is it proper to say that all special proceedings are actions in rem? Sec. 3. One suit for a single cause of action. A party may not
institute more than one suit for a single cause of action. (3a)
RULE 2
Sec. 4. Splitting a single cause of action; effect of. If two or more
suits are instituted on the basis of the same cause of action, the filing
of one or a judgment upon the merits in any one is available as a otherwise provided in these Rules, join as plaintiffs or be joined
ground for the dismissal of the others. (4a) as defendants in one complaint, where any question of law or
fact common to all such plaintiffs or to all such defendants may
cf grounds for MtD arise in the action; but the court may make such orders as may
be just to prevent any plaintiff or defendant from being
Splitting a cause of action is the act of dividing a single cause of
embarrassed or put to expense in connection with any
action, claim or demand into two or more parts, and bringing suit
proceedings in which he may have no interest. (6)
for one of such part and another suit for the other. It is the filing
of separate complaints for these several reliefs that constitutes Escolin: if there is joinder of parties, the cause of action asserted by all
splitting up of the cause of action. the plaintiffs must be based on a common question of law common to all
plaintiffs or to all the defendants.
If there are two of more suits are instituted on the basis of the
same cause of action, only one should remain and the others Joinder of causes of action is meant the uniting of two or more
must be dismissed on the grounf that there is another action demands or right of action in one action; the statement of more
pending between the same parties for the same cause (Sec. 1[e], than one cause of action in a declaration.
Rule 16;
The joinder of separate causes of action is permissive, not
If the first action has been already terminated, the action may be mandatory
dismissed on the ground that the cause of action is barred by
prior judgment or res judicata. Thus, petitions for adoption and for change for change of name
cannot be joined there being no relation between between these
Sec. 5. Joinder of causes of action. A party may in one pleading two petitions, nor are they of the same nature and character,
assert, in the alternative or otherwise, as many causes of action as he much less do they present any common question of fact or law.
may have against an opposing party, subject to the following (Republic v. Hernandez)
conditions:
An action to compel recognition as a natural child and a claim to
(a) The party joining the causes of action shall comply with the inheritance may be joined in one complaint. (Tayag v. CA, GR
rules on joinder of parties; 95229).
cf Rule 3, Sec. 6 (b) The joinder shall not include special civil actions or actions
governed by special rules;
Sec. 6. Permissive joinder of parties. All persons in whom or
against whom any right to relief in respect to or arising out of the e.g. forcible entry and unlawful detainer; actions governed by the rules
same transaction or series of transactions is alleged to exist, on summary procedure (e.g. ejectment)
whether jointly, severally, or in the alternative, may, except as
(c) Where the causes of action are between the same parties but a. one of the causes of action falls within the jurisdiction of the RTC
pertain to different venues or jurisdictions, the joinder may be court and
allowed in the Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and the venue lies b. the venue lies within such RTC
therein; and
4. where the claims in all the causes of action are principally for
Joiner of actions in different venues and jurisdictions must be in a recovery of money, the aggregate amount claimed shall be the test
RTC, not MTC of jurisdiction.
(d) Where the claims in all the causes of action are principally for Sec. 6. Misjoinder of causes of action. Misjoinder of causes of
recovery of money, the aggregate amount claimed shall be the test of action is not a ground for dismissal of an action. A misjoined cause of
jurisdiction. (5a) action may, on motion of a party or on the initiative of the court, be
severed and proceeded with separately. (n)
TOTALITY RULE-
cf Rule 31, Sec. 2
In the determination of the aggregate amount of the claims ,
the amount od interest, damages, of whatever kind, Sec. 2. Separate trials. The court, in furtherance of
convenience or to avoid prejudice, may order a separate trial of
Joiner of causes of action was introduced in the 1997 Rules of Civil any claim, cross-claim, counterclaim, or third-party complaint, or
Procedure. of any separate issue or of any number of claims, cross-claims,
counterclaims, third-party complaints or issues.
Memorize Section 5!
cf Rule 36, Sec. 5
A plaintiff can not split a single cause of action, but he may join several
causes of action against the same defendant, subject to the following Sec. 5. Separate judgments. When more than one claim for
rules relief is presented in an action, the court, at any stage, upon a
determination of the issues material to a particular claim and all
1. must comply with the rules on joinder of parties
counterclaims arising out of the transaction or occurrence which
2. joinder shall not include special civil actions or actions governed by is the subject matter of the claim, may render a separate
special rules (e.g. summary procedure) judgment disposing of such claim. The judgment shall terminate
the action with respect to the claim so disposed of and the action
3. where the causes of action are between the same parties but pertain shall proceed as to the remaining claims. In case a separate
to different venues or jurisdictions, the joinder may be allowed in the judgment is rendered, the court by order may stay its
RTC provided enforcement until the rendition of a subsequent judgment or
judgments and may prescribe such conditions as may be
necessary to secure the benefit thereof to the party in whose deposit of a prepaid copy of the complaint at the Manila Post Office,
favor the judgment is rendered. (5a) defendants did not appear within the period of 60days from last
publication, as required by the summons.
cf Rule 41, Sec. 1 (g)
Plaintiff then asked that defendants be declared in default; but instead,
Section 1. Subject of appeal. An appeal may be taken from a respondent Judge asked it to show cause why the action should not be
judgment or final order that completely disposes of the case, or dismissed, the suit being in personam and the defendants not having
of a particular matter therein when declared by these Rules to be appeared. Respondent Judge dismissed the case despite plaintiffs
appealable. argument that the summons by publication was sufficient and valid
under sec16 Rule14 RRC.
No appeal may be taken from:
HELD: Where the action is in personam (e.g. action for deficiency
(g) A judgment or final order for or against one or more of several
judgment), the Court could not validly acquire jurisdiction on a non-
parties or in separate claims, counterclaims, cross-claims and
appearing defendant, absent a personal service of summons. Without
third-party complaints, while the main case is pending, unless
such personal service, any judgment on a non-appearing defendant
the court allows an appeal therefrom; xxx
would be violative of due process. Summons by publication cannot
Escolin: A party generally can not appeal from a judgment on 1 cause of confer upon the court jurisdiction over said defendants, who does not
action in joined causes of action. He must file a leave of court before voluntarily submit himself to the authority of the court. The proper
appealing, or wait for judgment from all other joined causes of action. recourse for a creditor is to locate properties, real or personal, of the
resident defendant debtor and cause them to be attached, in which case,
CASES the attachment converts the action into a proceeding in rem or quasi in
rem and the summons by publication may then accordingly be deemed
valid and effective. The case should not be dismissed but should be held
CITIZEN SURETY V. MELENCIO-HERRERA, 38
pending in the court's archives, until plaintiff succeeds in determining the
SCRA 369 (1971)
whereabouts of the defendants' person or properties and causes valid
FACTS: Spouses Dacanay were indebted to Citizens Surety Insurance. summons to be served personally or by publication.
As security, the Dacanays mortgaged a parcel of land in Baguio. Since
they were not able to pay said debt, the said lot was sold in a foreclosure Escolin: Citizen Surety could not have availed of summons by publication
sale. However, proceeds of the sale were insufficient to satisfy said debt. because this provision applies only to actions in rem or quasi in rem. He
Thus Citizens Surety filed a complaint with the Manila CFI, seeking to should have invoked Rule 57, Sec. 1 (f) to convert the action into quasi in
recover the balance, plus 10% thereof as attys fees, and other costs. rem
At petitioners request, respondent Judge caused summons to be made Section 1. Grounds upon which attachment may issue. At the
by publication in the Phils Herald. But despite the publication and commencement of the action or at any time before entry of
judgment, a plaintiff or any proper party may have the property of action (i.e. default of the debtor). Such actions can not therefore be
of the adverse party attached as security for the satisfaction of split or filed separately. The filing or judgment on one action will
any judgment that may be recovered in the following cases: necessarily bar the filing of the other.
(f) In an action against a party who does not reside and is not
found in the Philippines, or on whom summons may be served by INDUSTRIAL FINANCE CORP. V. APOSTOL, 177
publication.(1a) SCRA 521 (1989)
FACTS: Spouses Padilla bought on credit 3 units of Isuzu trucks from
BACHRACH MOTOR V. ICARAGAL, 68 PHIL 287 Industrial Transport & Equipment. They executed a prom note for the
(1939) balance of the purchase price. This was secured by a chattel mortgage of
said trucks and, as additional collateral, a real estate mortgage on their
FACTS: Icaragal, with Figueroa, for value received, executed in favor of land.
Bachrach, a promissory note; and executed a real estate mortgage on a
parcel of land in Laguna as security for the pro note. The Padillas failed to pay several installments on the prom note, the
assignee Industrial Finance Corp. (IFC) sued them in the CFI for the
Thereafter, promissors defaulted in the payment of the agreed monthly recovery of the unpaid balance including attys fees. CFI ruled on 16Apr75
installments. Bachrach instituted in the Manila CFI an action for the in favor of IFC. On appeal, CA sustained the CFIs ruling except for
collection of the amount due. Judgment was rendered for the plaintiff. modification of attys fees from 25% to 12% of the balance.
A writ of execution was issued and in pursuance thereof, the Laguna
sheriff, at the indication of the plaintiff, levied on the properties of the Meanwhile on 09Sep71 private respondents Juan and Honorata
defendants, including the mortgaged lot. Delmendo filed a complaint against IFC, as principal party, and the
Padillas, as formal parties, in respondent CFI. The Delmendos alleged
The other defendant herein Oriental Commercial, interposed a third- that they were the transferees of the real property which was mortgaged
party claim, alleging that by virtue of a writ of execution issued in a civil earlier by the Padillas to Indl Transport. The Delmendos prayed for the
case in the municipal court of Manila City, the said lot had already been cancellation of the mortgaged lien annotated of the TCT and the delivery
acquired by it at the public auction. Thus the sheriff desisted from the to them by petitioner of the owners copy of said title with damages and
sale of the property and the judgment in favor of Bachrach remained attys fees, considering that IFC waived its rights over the mortgage when
unsatisfied. it instituted a personal action against the Padillas for collection of sum of
money.
Bachrach then instituted an action to foreclose the mortgage. Trial court
dismissed the complaint. Thus Bachrach took the present appeal. IFC moved for the dismissal of the complaint, contending that is has not
waived its right over the mortgage lien. The Delmendos filed a motion
HELD: An action for a collection on a loan and an action for foreclosure
of the mortgage that secures such loan are based on one a single cause
for summay judgment which the CFI granted. CFI ruled in favor of the Before petitioners MtD could be resolved, private respondent filed with
Delmendos. IFC filed a MfR which was denied. Hence this petition. the RTC an amended complaint for damages. Westin also filed an
Urgent Ex-Parte Motion for the Issuance of a TRO and Motion for the
HELD: A mortgage creditor may elect to waive his security and instead Grant of a Prelimi Prohibitory and Prelim Mandatory Injunction. RTC
bring an ordinary action to collect with the right to execute on all the denied petitioners MtD and admitted Westins amended complaint and
properties of the debtor, including the subject-matter of the mortgage. If granting the TRO.
he fails in the collection suit, he can not thereafter foreclose on the
mortgage. Progressive filed with CA a special civil action for certiorari and
prohibition in the ground that Judge Santiago acted in excess of his
Escolin: In case of splitting of a single cause of action, the ground for jurisdiction and/or committed grave abuse of discretion amounting to
dismissal is res judicata. lack of jurisdiction in admitting the amended complaint of Westin and
issuing a restraining order against Progressive; in allowing private
Escolin: If there is one cause of action but two remedies, the plaintiff
respondent to engage in forum shopping; and, taking cognizance of the
should have pleaded alternative remedies in his complaint.
action for damages despite lack of jurisdiction. CA dismissed the petition
due to the failure of petitioner to file a MfR of Judge Santiagos order,
PROGRESSIVE DEVELOPMENT CORP. V. CA, 301 which it explained was a prerequisite to the institution of a petition for
SCRA 637 (1999) certiorari and prohibition. CA also found that the elements of litis
pendencia were lacking to justify the dismissal of the action for damages
Facts: Pursuant to a lease contract, for non-payment of rentals with the RTC because despite the pendency of the forcible entry case
Progressive (lessor) repossessed the leased properties and seeks to with the MeTC the only damages recoverable thereat were those caused
auction-off movable property found therein. Westin Seafood Market by the loss of the use and occupation of the property and not the kind of
(lessee) files a forcible entry case before the MTC against the lessor. damages being claimed before the RTC which had no direct relation to
Settlement was agreed upon which was reneged (meaning: go back on loss of material possession. CA clarified that since the damages prayed
promise) by the plaintiff. Lessor seeks to auction-off lessees properties for in the amended complaint with the RTC were those caused by the
again. Lessee now files a case for damages with the RTC against the alleged high-handed manner with which petitioner reacquired
lessor. Lessor filed a MtD the damage suit on the ground of litis possession of the leased premises and the sale of Westins movable
pendencia and forum shopping. Instead of ruling on the motion, Judge found therein, the RTC and not the MeTC had jurisdiction over the action
Santiago issued an order archiving the case pending the outcome of the of damages.
forcible entry case being heard at the MeTC for the reason that the
damages is principally anchored on whether or not the defendants Petitioner filed petition for review on certiorari under Rule 45 alleging
(petitioner herein) have committed forcible entry. Petitioner moved for that CA erred in finding that petitioner failed to avail of its plain, speedy
recon of the order and reiterated its motion to dismiss the damages suit. and adequate remedy of a prior MfR with the RTC; ruling that the trial
judge did not act with grave abuse of discretion in taking cognizance of
Remedial Law Reviewer, Part III of IX, Last printed 12/9/2013 7:16:00 PM Mark de Leon, JD 2001 - 10 -
the action for damages and injunction despite the pendency of the of the MTC. But if the claim is other than reasonable use of the property,
forcible entry case with the MeTC; and ruling that private respondent did it must be within the jurisdiction of the MTC.
not commit forum shopping since the causes of action before the RTC
and MeTC were not identical with each other. de Leon: Counterclaims for moral and exemplary damages in ejectment
cases before the MTC should be within the the amounts prescribed for
Held: Petition is with merit. While generally a MfR must first be filed summary procedure.
before resorting to certiorari in order to give the lower court an
opportunity to correct the errors imputed to it, this rule admits of
exceptions and is not intended to be applied without considering the AGUSTIN V. BACALAN, 135 SCRA 340 (1985)
circumatances of the case. The filing of the MfR before availing of the Facts: Administrator of estate-lessor files a case for ejectment before the
remedy of certiorari is not sine qua non when the issue raised is one City Courts against the lessee. Lessee files counterclaim in excess of the
purely of law, or where the error is patent or the disputed order is void, or City Courts jurisdiction. City Court decides for plaintiff. On appeal, CFI
questions raised on certiorari are the same as those already squarely rules for defendant and grants him damages. This became final. Plaintiff
presented to and passed upon the lower court. The MtD the action for files separate for nullifying the CFI decision on the ground that the
damages with the RTC on the ground that another action for forcible damages awarded was beyond the jurisdiction of the City Court.
entry was pending at the MeTC between that same parties involving the
same matter and cause of action. Outrightly rejected by the RTC, the Held: A counterclaim not presented in the lower court can not be
same issue was elevated by petitioner on certiorari before the CA. entertained on appeal. Defendant is deemed to have waived his
Clearly, any MfR on the trial court would have been a pointless exercise. counterclaim in excess of the City Courts jurisdiction. It is as though it
has never been brought before City Court. It may not be entertained on
The forcible entry and damages case arose from a single cause of appeal. The amount of judgment, therefore, obtained by the defendant-
action. Hence, the case for damages may be dismissed. appellee on appeal, cannot exceed the jurisdiction of the court in which
the action began. Since the trial court did not acquire jurisdiction over
Petition is granted. CA decision and order of RTC reversed and set aside.
the defendant's counterclaim in excess of the jurisdictional amount, the
RTC directed to dismiss the damages case. MeTC directed to proceed
appellate court, likewise, acquired no jurisdiction over the same by its
with forcible entry case.
decisions or otherwise. When court transcends the limits prescribed for it
Escolin: The SC was wrong. Previous jurisprudence ruled that in cases by law and assumes to act where it has no jurisdiction, its adjudications
filed with the MTC, a compulsory counterclaim in excess of the will be utterly void and of no effect either as an estoppel or otherwise.
jurisdiction of the MTC should be filed as a separate action, or if filed in The excess award of the CFI is therefore null and void. Action to declare
the same action, the excess is waived. nullity of award is proper. The award not in excess stands.
de Leon: Under Rule 70, if a claim in an ejectment case in the MTC is for Escolin: A compulsory counterclaim beyond the jurisdiction of the court
reasonable use of the property, the claim may go beyond the jurisdiction can be filed as a separate action.
MACEDA V. CA, 176 SCRA (1989) RULE 3
Facts: Transferee of leased property files an ejectment case against the Section 1. Who may be parties; plaintiff and defendant. Only
lessee. Lessee sets up counterclaim for reimbursement of renovation natural or juridical persons, or entities authorized by law may be
expenses, in excess of the MTCs jurisdiction. MTC ejects lessee. RTC parties in a civil action. The term "plaintiff" may refer to the claiming
reinstates lessee and orders plaintiff to reimburse lessee. CA affirms RTC party, the counter-claimant, the cross-claimant, or the third (fourth,
but deletes award of reimbursement. etc.)-party plaintiff. The term "defendant" may refer to the original
defending party, the defendant in a counterclaim, the cross-
Held: MTC had no jurisdiction over the excess counterclaim. Hence,
defendant, or the third (fourth, etc.)-party defendant. (1a)
neither did the RTC. A counterclaim in excess of the limit may be pleaded
only by way of defense to weaken the plaintiff's claim, but not to obtain Sec. 2. Parties in interest. A real party in interest is the party
affirmative relief. who stands to be benefited or injured by the judgment in the suit, or
the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted or
BAYANG V. CA, 148 SCRA 91 (1987) defended in the name of the real party in interest. (2a)
Facts: Pending a quieting of title case, defendant dispossesses the
Memorize!
plaintiff. CA rules in favor of plaintiff. Plaintiff now files separate action
for the fruits during the period of dispossession. real party in interest the party who stands to be benefited or injured by
the judgment in the suit, or the party entitled to the avails of the suit.
Held: Ownership of the land and income from the land is a single cause of
action in case of quieting of title. The claim for the income from the land Sec. 3. Representatives as parties. Where the action is allowed
was incidental to a claim for ownership of the land. During the whole to be prosecuted or defended by a representative or someone acting
period of dispossession, plaintiff made no move to amend his complaint in a fiduciary capacity, the beneficiary shall be included in the title of
to include a claim for the income supposedly received by the defendant. the case and shall be deemed to be the real party in interest. A
Failure to do so is res judicata to the subsequent case. representative may be a trustee of an express trust, a guardian, an
executor or administrator, or a party authorized by law or these
Famador: Compulsory counterclaims should be filed with the original
Rules. An agent acting in his own name and for the benefit of an
case. Permissive counterclaims may be filed in a separate case.
undisclosed principal may sue or be sued without joining the principal
Escolin: Plaintiff should have filed a supplementary complaint after the except when the contract involves things belonging to the principal.
defendant has dispossessed him. (3a)
Sec. 4. Spouses as parties. Husband and wife shall sue or be

PARTIES TO CIVIL ACTIONS sued jointly, except as provided by law. (4a)
Sec. 5. Minor or incompetent persons. A minor or a person indispensable parties parties in interest without whom no final
alleged to be incompetent, may sue or be sued, with the assistance of determination can be had of an action
his father, mother, guardian, or if he has none, a guardian ad litem.
(5a) Failure to implead an indispensable party is ground to dismiss the case.
Sec. 6. Permissive joinder of parties. All persons in whom or Sec. 8. Necessary party. A necessary party is one who is not
against whom any right to relief in respect to or arising out of the indispensable but who ought to be joined as a party if complete relief
same transaction or series of transactions is alleged to exist, whether is to be accorded as to those already parties, or for a complete
jointly, severally, or in the alternative, may, except as otherwise determination or settlement of the claim subject of the action. (8a)
provided in these Rules, join as plaintiffs or be joined as defendants in
Memorize! Key word complete
one complaint, where any question of law or fact common to all such
plaintiffs or to all such defendants may arise in the action; but the necessary party one who is not indispensable but who ought to be
court may make such orders as may be just to prevent any plaintiff or joined as a party if complete relief is to be accorded as to those already
defendant from being embarrassed or put to expense in connection parties, or for a complete determination or settlement of the claim
with any proceedings in which he may have no interest. (6) subject of the action.
Memorize! Failure to implead a necessary party is a waiver of the claim against such
party. It is not ground to dismiss the case.
Rule on permissive joinder of parties All persons in whom or against
whom any right to relief in respect to or arising out of the same Sec. 9. Non-joinder of necessary parties to be pleaded.
transaction or series of transactions is alleged to exist, whether jointly, Whenever in any pleading in which a claim is asserted a necessary
severally, or in the alternative, may join as plaintiffs or be joined as party is not joined, the pleader shall set forth his name, if known, and
defendants in one complaint, where any question of law or fact common shall state why he is omitted. Should the court find the reason for the
to all such plaintiffs or to all such defendants may arise in the action omission unmeritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person may be obtained.
Misjoinder of causes of action is not a ground to dismiss a case. The
proper remedy is to sever the other cause of action and to try separately. The failure to comply with the order for his inclusion, without
justifiable cause, shall be deemed a waiver of the claim against such
Sec. 7. Compulsory joinder of indispensable parties. Parties in
party.
interest without whom no final determination can be had of an action
shall be joined either as plaintiffs or defendants. (7) The non-inclusion of a necessary party does not prevent the court
from proceeding in the action, and the judgment rendered therein
Memorize! Key word final
shall be without prejudice to the rights of such necessary party. (8a,
9a)
When necessary party not pleaded the court finds to be sufficiently numerous and representative as to
fully protect the interests of all concerned may sue or defend for the
1. the pleader shall set forth his name, if known, and shall state why he benefit of all. Any party in interest shall have the right to intervene to
is omitted protect his individual interest. (12a)
2. Should the court find the reason for the omission unmeritorious, it Memorize!
may order the inclusion of the omitted necessary party if jurisdiction
over his person may be obtained. Requisites of a Class Suit
3. failure to comply with the order for his inclusion, without justifiable 1. the subject matter of the controversy is one of common or general
cause, shall be deemed a waiver of the claim against such party. interest
4. The non-inclusion of a necessary party does not prevent the court 2. to many persons so numerous it is impracticable to join all as parties
from proceeding in the action, and the judgment rendered therein
shall be without prejudice to the rights of such necessary party. 3. a number of them which the court finds to be sufficiently numerous
and representative as to fully protect the interests of all concerned
Sec. 10. Unwilling co-plaintiff. If the consent of any party who sues or defends for the benefit of all
should be joined as plaintiff can not be obtained, he may be made a
defendant and the reason therefor shall be stated in the complaint. 4. Any party in interest shall have the right to intervene to protect his
(10) individual interest.
Sec. 11. Misjoinder and non-joinder of parties. Neither Sec. 13. Alternative defendants. Where the plaintiff is uncertain
misjoinder nor non-joinder of parties is ground for dismissal of an against who of several persons he is entitled to relief, he may join any
action. Parties may be dropped or added by order of the court on or all of them as defendants in the alternative, although a right to
motion of any party or on its own initiative at any stage of the action relief against one may be inconsistent with a right of relief against the
and on such terms as are just. Any claim against a misjoined party other. (13a)
may be severed and proceeded with separately. (11a)
Sec. 14. Unknown identity or name of defendant. Whenever the
de Leon: The non-joinder of a party which does not cause dismissal refers identity or name of a defendant is unknown, he may be sued as the
to necessary parties. Non-joinder of an indispensable party is a ground to unknown owner, heir, devisee, or by such other designation as the
dismiss the action. case may require; when his identity or true name is discovered, the
pleading must be amended accordingly. (14)
Sec. 12. Class suit. When the subject matter of the controversy
is one of common or general interest to many persons so numerous Sec. 15. Entity without juridical personality as defendant. When
that it is impracticable to join all as parties, a number of them which two or more persons not organized as an entity with juridical
personality enter into a transaction, they may be sued under the The heirs of the deceased may be allowed to be substituted for
name by which they are generally or commonly known. the deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the
In the answer of such defendant, the names and addresses of the minor heirs.
persons composing said entity must all be revealed. (15a)
The court shall forthwith order said legal representative or
cf Rule 14, Sec. 8 representatives to appear and be substituted within a period of thirty
(30) days from notice.
Sec. 8. Service upon entity without juridical personality. When
persons associated in an entity without juridical personality are If no legal representative is named by the counsel for the
sued under the name by which they are generally or commonly deceased party, or if the one so named shall fail to appear within the
known, service may be effected upon all the defendants by specified period, the court may order the opposing party, within a
serving upon any one of them, or upon the person in charge of specified time, to procure the appointment of an executor or
the office or place of business maintained in such name. But such administrator for the estate of the deceased and the latter shall
service shall not bind individually any person whose connection immediately appear for and on behalf of the deceased. The court
with the entity has, upon due notice, been severed before the charges in procuring such appointment, if defrayed by the opposing
action was brought. (9a) party, may be recovered as costs. (16a, 17a)
Chang Kai Shek v. CA, 172 SCRA 389 (1989) Sec. 20. Action on contractual money claims. When the action is
for recovery of money arising from contract, express or implied, and
Facts: Dismissed teacher sues unincorporated school. Plaintiff tries to
the defendant dies before entry of final judgment in the court in
amend to implead school officials, but CFI dismissed the case. CA
which the action was pending at the time of such death, it shall not be
reverses.
dismissed but shall instead be allowed to continue until entry of final
Held: The school can not invoke its non-compliance with the law to judgment. A favorable judgment obtained by the plaintiff therein
escape being sued. It is now in estoppel. shall be enforced in the manner especially provided in these Rules for
prosecuting claims against the estate of a deceased person. (21a)
Sec. 16. Death of party; duty of counsel. Whenever a party to a
pending action dies, and the claim is not thereby extinguished, it shall Money claims are now not extinguished by the death of a party.
be the duty of his counsel to inform the court within thirty (30) days
The court can not cite in contempt a legal representative who refuses to
after such death of the fact thereof, and to give the name and address
appear in court.
of his legal representative or representatives. Failure of counsel to
comply with this duty shall be a ground for disciplinary action. cf Rule 78, Sec. 6 which shows that the plaintiff-creditor may apply for
letters of administration.
Rule 78 Letters Testamentary and of Administration, When and the adjustment of such claim, have the same power and be
to Whom Issued subject to the same liability as the general administrator or
executor in the settlement of other claims. The court may order
Sec. 6. When and to whom letters of administration granted. If the executor or administrator to pay to the special administrator
no executor is named in the will, or the executor or executors are necessary funds to defend such claim.
incompetent, refuse the trust, or fail to give bond, or a person
dies intestate, administration shall be granted: If the plaintiff wins in a money claim, he must present a writ of execution
with the probate court as a claim in the estate proceedings. If the plaintiff
(a) To the surviving husband or wife, as the case may be, or next wins in a non-money claim, the writ of execution may be enforced
of kin, or both, in the discretion of the court, or to such person as without going to the probate court.
such surviving husband or wife, or next of kin, requests to have
appointed, if competent and willing to serve; cf Rule 39, Sec. 7
(b) If such surviving husband or wife, as the case may be, or next Rule 39, Execution Satisfaction and Effect of Judgments
of kin, or the person selected by them, be incompetent or
unwilling, or if the husband or widow, or next of kin, neglects for Sec. 7. Execution in case of death of party. In case of the death
thirty (30) days after the death of the person to apply for of party, execution may issue or be enforced in the following
administration or to request that administration be granted to manner:
some other person, it may be granted to one or more of the
(a) In case of the death of the judgment obligee, upon the
principal creditors, if competent and willing to serve;
application of his executor or administrator, or successor in
(c) If there is no such creditor competent and willing to serve, it interest;
may be granted to such other person as the court may select.
(b) In case of the death of the judgment obligor, against his
Next of kin is someone who will inherit next to the spouse. The remedy executor or administrator or successor in interest, if the
in case conflict of interest where a creditor being appointed judgment be for the recovery of real or personal property, or the
administrator is in Rule 86, Sec. 8, is to appoint a special administrator enforcement of the lien thereon;
where the creditor appointed will have to file his claim.
(c) In case of the death of the judgment obligor, after execution is
Rule 86 Claims Against Estate actually levied upon any of his property, the same may be sold
for the satisfaction of the judgment obligation, and the officer
Sec. 8. Claim of executor or administrator against an estate. If making the sale shall account to the corresponding executor or
the executor or administrator has a claim against the estate he administrator for any surplus in his hands. (7a)
represents, he shall give notice thereof, in writing, to the court,
and the court shall appoint a special administrator, who shall, in
If the judgment creditor dies after the final judgment, the judgment will 1. before a case is filed
be executed upon initiative of the executor or administrator. If the
judgment debtor dies after the final judgment, and the judgment is a real a. for recovery of a sum of money file a claim before the estate
action or action for damages, the executor or administrator substitutes proceedings, where the creditor will have to present evidence on
the decedent and judgment is executed. But if the case is for a sum of the validity of his claim
money, and if he dies before levy was executed, the judgment is filed as a
b. real action and action for damages file a separate case against
claim before the estate proceedings. But if levy was already made, the
the executor/administrator
sale of the property proceeds, the proceeds is delivered to the plaintiff
and the excess is delivered to the executor/administrator. 2. after a case is filed but before judgment
cf Rule 87, Sec. 1 a. for recovery of a sum of money case shall not be dismissed but
shall instead be allowed to continue until entry of final judgment;
Sec. 1. Actions which may and which may not be brought against
the judgment is then filed as a claim in the estate proceedings;
executor or administrator. - No action upon a claim for the
Regalado, p. 101: Decedents legal representative should be
recovery of money or debt or interest thereon shall be
substituted for the decedent.
commenced against the executor or administrator; but actions to
recover real or personal property, or an interest therein, from the b. real action and action for damages
estate, or to enforce a lien thereon, and actions to recover
damages for an injury to person or property, real or personal, 1) heirs of the deceased may be allowed to be
may be commenced against him. substituted, without requiring the appointment of an
executor or administrator and the court may appoint a
If the defendant dies before a case may be filed guardian ad litem for the minor heirs.
1. for recovery of sum of money file a claim before the estate 2) If no legal representative appears, the court may
proceedings, where the creditor will have to present evidence on the order the opposing party, within a specified time, to
validity of his claim; because the amount sought to be collected is procure the appointment of an executor or administrator
definite for the estate of the deceased and the latter shall
immediately appear for and on behalf of the deceased.
2. for recovery of property file a separate case against the
Priority to in the appointment to
executor/administrator; because the amount of the claim is
unliquidated a) Surviving spouse, or next of kin
3. for damages for injury file a separate case before the courts. b) one or more of the principal creditors, if competent and
willing to serve
de Leons Rules: (SUMMARY) If the defendant dies
c) other person as the court may select. Sec. 18. Incompetency or incapacity. If a party becomes
incompetent or incapacitated, the court, upon motion with notice,
3) in case conflict of interest where a creditor being may allow the action to be continued by or against the incompetent
appointed administrator is to appoint a special or incapacitated person assisted by his legal guardian or guardian ad
administrator where the creditor appointed will have to litem. (19a)
file his own claim
Sec. 19. Transfer of interest. In case of any transfer of interest,
3. after judgment but before execution the action may be continued by or against the original party, unless
the court upon motion directs the person to whom the interest is
a. for sum of money present the writ of execution as a claim
transferred to be substituted in the action or joined with the original
before the probate court
party. (20)
b. real action and action for damages substitute the defendant
Sec. 20. Action on contractual money claims. xxx (moved to
with his administrator or executor, and enforce the writ against
under Rule 3, Sec. 16)
him without going to the probate court
Sec. 21. Indigent party. A party may be authorized to litigate his
4. after levy on execution (applies only to recovery of a sum of money)
action, claim or defense as an indigent if the court, upon an ex parte
continue with the auction sale and the officer making the sale shall
application and hearing, is satisfied that the party is one who has no
deliver the proceeds to the plaintiff, and account to the executor or
money or property sufficient and available for food, shelter and basic
administrator for any excess
necessities for himself and his family.
Sec. 17. Death or separation of a party who is a public officer.
Such authority shall include an exemption from payment of
When a public officer is a party in an action in his official capacity and
docket and other lawful fees, and of transcripts of stenographic notes
during its pendency dies, resigns, or otherwise ceases to hold office,
which the court may order to be furnished him. The amount of the
the action may be continued and maintained by or against his
docket and other lawful fees which the indigent was exempted from
successor if, within thirty (30) days after the successor takes office or
paying shall be a lien on any judgment rendered in the case favorable
such time as may be granted by the court, it is satisfactorily shown to
to the indigent, unless the court otherwise provides.
the court by any party that there is a substantial need for continuing
or maintaining it and that the successor adopts or continues or Any adverse party may contest the grant of such authority at any
threatens to adopt or continue the action of his predecessor. Before a time before judgment is rendered by the trial court. If the court
substitution is made, the party or officer to be affected, unless should determine after hearing that the party declared as an indigent
expressly assenting thereto, shall be given reasonable notice of the is in fact a person with sufficient income or property, the proper
application therefor and accorded an opportunity to be heard. (18a) docket and other lawful fees shall be assessed and collected by the
clerk of court. If payment is not made within the time fixed by the
court, execution shall issue for the payment thereof, without CHANG KAI SHEK V. CA, 172 SCRA 389 (1989)
prejudice to such other sanctions as the court may impose. (22a)
FACTS Fausta Oh was abruptly dismissed for no apparent or given
Indigent party one who has no money or property sufficient and reason from her teaching job in Chang Kai Shek School. Fausta sued and
available for food, shelter and basic necessities for himself and his family. demanded separation pay, SSS benefits, salary differentials, maternity
benefits, moral and exemplary damages. Chang Kai Shek filed MtD on
Sec. 22. Notice to the Solicitor General. In any action involving the ground that it could not be sued. Complaint was amended. Certain
the validity of any treaty, law, ordinance, executive order, school officials were also impleaded to make them solidarily liable with
presidential decree, rules or regulations, the court, in its discretion, the school. CFI dismissed the complaint. On appeal, CA set aside CFI
may require the appearance of the Solicitor General who may be decision and held the school suable and liable while absolving the school
heard in person or through a representative duly designated by him. officials. MfR was denied. The school then came to SC in a petition for
(23a) review on certiorari.
CASES HELD An unincorporated entity sued as such can not invoke its non-
compliance with the law to escape being sued. It is now in estoppel.
Petition denied. CA decision affirmed.
JUASING HARDWARE V. MENDOZA, 115 SCRA 783
(1982)
FACTS Juasing Hardware, single proprietorship owned by Ong Bon HANG LUNG BANK V. SAULOG, 201 SCRA 137
Yong, filed a complaint for the collection of a sum of money against Pilar (1991)
Dolla. The case proceeded to pre-trial and trial. After plaintiff presented FACTS Hang Lung Bank (HLB), foreign corp not doing business in the
its evidence and rested its case, defendant filed a Motion for Dismissal of Phils, entered into 2 continuing guarantee agreements with Cordova
Action (Demurrer to Evidence) praying that the action be dismissed for Chin San (CCS) in HK whereby CCS agreed to pay on demand all sums of
the plaintiffs lack of capacity to sue. Defendant in said Motion money which may be due the bank from Worlder Enterprises (WE). WE
contended that plaintiff Juasing is a single prop, not a corp or partnership having defaulted in its payment, HLB filed a collection suit against WE
duly registered in accordance with law and therefor is not a juridical and CCS in the HK SC.
person with legal capacity to bring an action in court. Juasing filed an
Opposition and moved for the admission of an Amended Complaint. CFI Thereafter, HLB sent a demand letter to CCS at his Phils address but
Judge dismissed the case and denied admission of Amended Complaint. again, no response was made thereto. Hence HLB instituted in the
Makati RTC an action seeking enforcement of its just and valid claims.
HELD Correction of the designation of the plaintiff (from name of sole CCS raised in his answer to the complaint the affirmative defenses of;
proprietorship to name of individual owner) is merely formal, not lack of cause of action, incapacity to sue, and improper venue.
substantial, and hence may be corrected at any stage of the action.
A day before pre-trial, CCS filed MtD on grounds that HLB had no legal Held: The defendant is estopped to deny the capacity of the foreign
capacity to sue and that venue is improper. RTC granted the MtD. HLB corporation to sue, having dealt with the corporation.
filed MfR but was denied. Hence the instant petition for certiorari
seeking reversal of said orders.
USA V. REYES, 219 SCRA 192 (1993)
HELD License as a requirement for a foreign corporation to sue applies
The doctrine of immunity from suit will not apply and may not be
only to foreign corporations doing business in the Philippines. Isolated
invoked where the public official is being sued in his private and personal
Transaction Rule unlicensed foreign corporation not doing business
capacity as an ordinary citizen. The cloak of protection afforded the
may sue on an isolated transaction. RTC orders set aside. Case
officers and agents of the government is removed the moment they are
reinstated and RTC is directed to proceed with the disposition of the
sued in their individual capacity. This situation usually arises where the
case.
public official acts without authority or in excess of the powers vested in
him. A public official may be liable in his personal private capacity for
COMMISSIONER OF CUSTOMS V. KMK GANI, 182 whatever damage he may have caused by his act done with malice and in
SCRA 591 (1990) bad faith, or beyond the scope of his authority or jurisdiction.
Unlicensed foreign corporations not engaged in business may sue in the

Philippines based on an isolated transaction. Fact of not doing business FLORES V. MALLARE-PHILIPS, 144 SCRA 377
must be alleged in the suit. (1986)
Escolin: In Commissioner of Customs, KMKs personality was not Facts: Plaintiff files 1 complaint against 2 distinct defendants before the
recognized because it was not able to prove that it was a duly formed RTC under distinct separate causes of action. Total amount of the claim
corporation by presenting a certification from the government of its is with RTC jurisdiction, but individual claim is under MTC jurisdiction.
country of origin. Unlike in Hang Lung, the foreign corporation was able RTC dismisses the complaint .
to prove its corporate existence under the foreign law.
Held: In cases of joinder of causes of action, the amount of the demand
de Leon: Even if a plaintiff foreign entity is not required to obtain a shall be the totality of the claims in all the causes of action irrespective of
license because it is not doing business, it must still prove its due whether the causes of action arose out of the same or different
incorporation in its country of origin. transactions. In cases of permissive joinder of parties, whether as
plaintiffs or as defendants, the total of all the claims shall now furnish the
jurisdictional test. However, there should be a proper joinder of parties
MERRILL LYNCH V. CA, 211 SCRA 824 (1992) for the totality rule to apply. In this case, the 2 causes of action did not
arise out of the same transaction or series of transactions and there was
Facts: Unlicensed foreign corporation sues for recovery of money. They
not common question of law or fact. There was improper joining of
were doing business in the Philippines.
parties, hence the totality rule does not apply. MTC has jurisdiction.
RALLA V. RALLA, 199 SCRA 495 (1991) Mansion filed certiorari and injunction with the CA questioning RTCs
setting aside of the order of attachment. CA annulled and set aside the
Facts: Validly disinherited son (Pedro) sues for annulment of sale of
portion of the order which set aside the Order of Attachment. Mansion
property from the decedent to another heir.
filed another appeal with the CA assailing RTCs ruling absolving
Held: The disinherited son has no legal standing to question the validity defendants from civil liability.
of the sale. He is not a real party in interest as he does not stand to be
While appeal was pending, Ty died. MtD the appeal was filed. CA denied
benefited or injured by the judgment or a party entitled to the avails of
MtD and granted the substitution of Tys children.
the suit. Interest means material interest.
CA dismissed the appeal filed by Mansion for lack of merit. CA held that
civil liab sought to be enforced by Mansion was not the personal liab of
MANSION BISCUIT V. CA, 250 SCRA 195 (1995)
Ty but a contractual liab of ETB Corp. The civil liab of ETB Corp to
FACTS Ty Teck Suan, as Pres of Edward Ty Brothers Corp (ETB Corp), Mansion was not litigated and resolved in the crim cases because ETB
ordered cartons of nutri-wafers from Mansion Biscuit Corp. B4 delivery Corp was not a party thereto. CA held that a separate civil action should
of goods on nov81, Ty issued to Ang Cho Hong, pres of Mansion, 4 be instituted by Mansion against ETB Corp.
postdated checks. 4 other PD checks were issued by Ty with Siy Gui as
co-signor in dec81. Mansion delivered the good. First 4 PD checks were HELD Death of the accused pending appeal of his conviction
deposited but were dishonored due to ISF. Ang informed Ty of the extinguishes his criminal liability as well as the civil liability based solely
dishonor and asked him to replace the checks with cash or good checks. thereon. However, the claim for civil liability survives, if the same may
Ang sent a formal demand letter. Thereafter, the second batch of checks also be predicated on a source of obligation other than delict. Where the
were deposited but was also dishonored. Mansion then filed a crim case civil liability survives, an action for recovery therefor may be pursued but
for violation of BP22 in Valenzuela RTC. Ty pleaded not guilty. Ang filed only by way of filing a separate civil action against the
a verified motion for the issuance of a writ of attachment. executor/administrator or the estate of the accused, depending on the
source of obligation. In cases where in the civil action is impliedly
After prosecution rested its case, Ty filed a MtD by way of demurrer to instituted with the criminal action, the statute of limitations on the civil
evidence, which Siy adopted as his own. RTC granted the MtD stating liability is deemed interrupted during the pendency of the criminal case.
that the stare decisis in these cases where the check is issued as part of
an agreement to guarantee or secure payment of an obligation, whether
pre-existing or not, the drawer is not criminally liable for either Estafa or NUAL V. CA, 221 SCRA 26 (1993)
Violation of BP22. Both accused are found not guilty. Order of Facts: Frank and Mary had children, one of whom was Mary Lyon Martin.
Attachment set aside. Prosecution then filed MfR and for clarification as They also owned a parcel of land. They died. Luisa Lyon Nual was in
to the civil aspect of the crim actions. MfR was denied. possession of the land. Emma Lyon de Leon in her behalf and as guardian
ad litem of the minor heirs of Frank and Mary (but not including Mary
Lyon Martin) sued Luisa Lyon, now deceased and herein represented by Escolin: Once a judgment has been rendered, even if it is not yet final,
her heirs, for partition and accounting. CFI ordered the partition but intervention may no longer be allowed. It is not necessary for the
dismissed the complaint for accounting. Affirmed by the CA, with a judgment of partition be final before the excluded heir may not be
finding that Mary Lyon Martin was a child of Frank and Mary, but the allowed to intervene. cf Rule 19, Sec. 2
order of partitioning did not include Mary Lyon Martin. Decision became
final and writ of execution was issued. Sec. 2. Time to intervene. - The motion to intervene may be filed
at any time before rendition of judgment by the trial court. xxx
Thereafter, Mary Lyon Martin filed a motion to quash the order of
execution with preliminary injunction. Eventually, the lower court
ordered the inclusion of Mary Lyon Martin in the partitioning as a co- ROBLES V. CA, 83 SCRA 180 (1978)
owner, invoking the fact that the earlier decision had a finding that Mary Facts: Heirs sign power of attorney authorizing an heir to sell land
Lyon Martin is one of the children of Frank and Mary. CA affirms. inherited. One heir did not sign. The land was sold and registered.
Excluded heir now sues the buyer and the RoD to cancel the buyers
Held: When a final judgment becomes executory, it thereby becomes
title. TC dismisses the case on ground that the vendors should have been
immutable and unalterable. The judgment may no longer be modified in
impleaded as an indispensable party
any respect, even if the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or law, and regardless of Held: The action is not really one for cancellation of title, but really one
whether the modification is attempted to be made by the Court questioning RoDs acceptance of the PoA as a Declaration of heirship.
rendering it or by the highest Court of land. The only recognized The vendors are not indispensable parties. The action for cancellation
exceptions are the correction of clerical errors or the making of so-called pertains only to plaintiffs rights as an excluded heir, and does not affect
nunc pro tunc entries which cause no prejudice to any party, and, of the rights and interests of the vendors. In reality, plaintiffs action is one
course, where the judgment is void. Any amendment. or alteration which of legal redemption where the vendors are clearly not indispensable
substantially affects a final and executory judgment is null and void for parties. Besides, the defendant RoD had the option of impleading the
lack of jurisdiction, including the entire proceedings held for that vendors as 3rd party defendants if he wanted to.
purpose.
In the case at bar, the decision of the trial court has become final and
IMSON V. CA, 239 SCRA 58 (1994)
executory. Thus, upon its finality, the trial judge lost his jurisdiction over
the case. Consequently, any modification that he would make, as in this Facts: Plaintiff sues for damages from a vehicular accident. Beneficial
case, the inclusion of Mary Lyon Martin would be in excess of his owner and the driver were declared in default. Compromise was reached
authority. The remedy of Mary Lyon Martin is to file an independent suit with the insurer and the claim against him was withdrawn. Registered
against the parties and all other heirs for her share in the subject owners now seek dismissal of the claims against them as well.
property, in order that all the parties in interest can prove their respective
claims.
Held: The case should proceed. The rule is dismissal of the case against refusal or failure to comply with the order is a ground for the dismissal of
an indispensable party results in dismissal of the case against the other his complaint and is res judicata to a 2nd complaint.
indispensable parties. The insurer is merely a necessary party. Dismissal
of the case against him will not result to dismissal of the claim against
the other defendants. CASENAS V. ROSALES, 19 SCRA 463 (1967)
Facts: Araas and Caseas filed a complaint for specific performance and
Escolin: The insurer is not an indispensable party to the case. The only
enforcement of their alleged right under a certain deed of sale, and
indispensable party here is the driver of the truck. All the others are mere
damages against the spouses Rosales. After answer has been filed and
necessary parties.
before trial, counsel for plaintiffs informed the trial court that plaintiff
Araas and defendant Rosales had both died. The lower court directed
MINA V. PACSON, 6 SCRA 775 (1963) the surviving plaintiff, Caseas, to amend the complaint to effect the
necessary substitution of parties thereon. Caseas failed to do this, so
Facts: Plaintiffs Mina are the illegitimate children of Joaquin Mina. the TC dismissed the case. The dismissal became final. Thereafter,
Joaquin executed a two deeds of absolute sale to Crispino Medina and Caseas filed another complaint against the widow Rosales and heirs of
Cresencia Mina (legitimate child). These deeds bear the conformity of the late Rosales "to quiet, and for reconveyance of, title to real property,
Joaquins wife Antonia. Joaquin died in 1958. Plainitffs Mina sued with damages." This suit referred itself to the very same property
Crispino and Cresencia for declaration of nullity of the deeds of sale and litigated in the previous dismissed case. and asserted exactly the same
that defendants be required to deliver to plaintiffs of said properties allegations as those made in the former complaint. Defendants filed
together with moral damages (1st case). The RTC directed plaintiffs to MTD on ground of res judicata. TC dismissed the case.
amend their complaint to include Antonia and other intestate heirs of
Joaquin. Plaintiffs failed to comply, so 1st case was dismissed. Thereafter Held: When certain of the parties died and due notice thereof was given
plainitffs Mina brought another action with the same pleading with an to the trial court, it devolved on the said court to order, not the
additional prayer for recognition as Joaquins illegitimate children (2 nd amendment of the complaint, but the appearance of the legal
case). Defendants filed a MTD on the ground of res judicata. The court representatives of the deceased. An order to amend the complaint,
thereby dismissed the 2nd case. Plaintiffs now contend that there is no res before the proper substitution of parties has been effected, is void and
judicata because the 1st dismissal was void. imposes upon the plaintiff no duty to comply therewith to the end that
an order dismissing the said complaint, for such non-compliance, would
Held: To order an amendment to a complaint within a certain period in similarly be void.
order to implead as party plaintiff or defendant one who is not a party to
the case lies within the discretion of the Court. Where it appears that the Escolin: where the defendant dies pending the case, the duty of the court
person to be impleaded is an indispensable party, the party to whom is to order the substitution of the defendant, not to order the
such order is directed has no other choice but to comply with it. His amendment of the complaint to implead the heirs of the defendant
de Leon: In Mina, the court ordered the amendment of the complaint to Escolin: It is the duty of the court to order substitution and such
implead an indispensable party. The order was proper, hence failure to substitution is mandatory otherwise the court does not acquire
comply was a valid ground for dismissal of the complaint. In Casenas, the jurisdiction.
court ordered the amendment of the complaint to implead the heirs of a
deceased party. The order was improper because the proper procedure de Leon: If the heirs ordered to substitute refuses to appear, they may
was to substitute. Hence failure to comply was not a valid ground for not be held in contempt. The remedy is for the creditor to procure the
dismissal of the complaint. appointment of an administrator for the estate and then substitute him
for the decedent.
Escolin: Heirs of the decedent are indispensable parties in an action to for
support by an illegitimate child of the decedent.
VDA. DE HABERER V. CA, 104 SCRA 534 (1981)
Facts: TC dismisses 11 complaints for recovery of parcel of land. Plaintiff
VDA DELA CRUZ V. CA, 88 SCRA 695 (1979)
dies pending appeal. Counsel notifies the court of appellants death, and
Facts: Defendant in an ejectment case died before judgment could be prayed for suspension of the period for filing an appellants brief pending
rendered. TC acknowledged in its decision that the defendant had died. appointment of an executor. CA denies extension and dismisses the
Decision became final and was executed. Heirs of the defendant now appeal.
filed a motion to substitute the deceased and to set aside as null void the
decisions, orders, writ of execution and sale at public auction made and Held: The RoC requires appearance of the deceased legal representatives
entered against the latter. TC allowed substitution, but denied setting instead of dismissing the case. Dismissal of an appeal on the ground of
aside of the decision and execution. CA reverses. failure to file appellants brief must be in accordance with the tenets of
justice and fair play. The extension should have been granted.
Held: In case of the death of a party and due notice is given to the trial
court, it is the duty of the court to order the legal representative of the
deceased to appear for him. In the case at bar, no legal representative VDA. DE SALAZAR V. CA, 250 SCRA 305 (1995)
was ever summoned appear in court. No legal representative appeared Formal substitution of heirs is not necessary when the heirs themselves
to be substituted. The plaintiffs did not procure the appointment of such voluntarily appeared, participated in the case and presented evidence in
legal representatives. As a result, the continuance of a proceeding during defense of deceased defendant.
the pendency of which a party thereto dies, without such having been
validly substituted in accordance with the rules, amounts to lack of
jurisdiction. ACAR V. ROSAL, 19 SCRA 625 (1967)
An applicant for leave to sue in forma pauperis, need not be a pauper; the
fact that he is able-bodied and may earn the necessary money is no
answer to his statement that he has not sufficient means to prosecute
the action or to secure the costs. It suffices that plaintiff is indigent, Fixed by law Can be fixed by agreement
though not a public charge. Indigents are persons who have no
property or source of income sufficient for their support aside from their Conferred by agreement of
Cannot be conferred by the party
own labor, though self-supporting when able to work and in parties
employment. It is in this sense of being indigent that "pauper" is taken Improper venue may not be a
when referring to suits in forma pauperis. In class suits, the nominal Lack of jurisdiction is a ground for
ground for dismissal if there
plaintiffs directly bear the cost of the suit. The proof of the indigence of dismissal by the court motu propio
is no motion from
the nominal parties is enough to support a petition to sue as pauper
litigants. It need not be proved that every beneficiary of the class suit is
indigent. The remedy in case of denial of a meritorious petition to sue as RULE 4
pauper litigants is mandamus. Appeal is unavailing because the plaintiffs
were not even accorded the status of litigants. Section 1. Venue of real actions. Actions affecting title to or
possession of real property, or interest therein, shall be commenced
and tried in the proper court which has jurisdiction over the area
VENUE OF ACTIONS wherein the real property involved, or a portion thereof, is situated.
DISTINCTIONS BETWEEN VENUE AND JURISDICTION Forcible entry and detainer actions shall be commenced and tried
in the municipal trial court of the municipality or city wherein the real
Jurisdiction authority to hear and decide a case, established by property involved, or a portion thereof, is situated. (1[a], 2[a]a)
substantive law, establishes relation between court and subject matter;
fixed by law and can not be conferred by the party Venue of real actions is where the real property is located.
Venue place of trial, established by procedural law, establishes relation Sec. 2. Venue of personal actions. All other actions may be
between parties; conferred by agreement of parties, can be fixed by commenced and tried where the plaintiff or any of the principal
agreement plaintiffs resides, or where the defendant or any of the principal
defendants resides, or in the case of a non-resident defendant where
JURISDICTION VENUE he may be found, at the election of the plaintiff. (2[b]a)
Authority to hear and decide a case Place of trial Sec. 3. Venue of actions against nonresidents. If any of the
Established by procedural defendants does not reside and is not found in the Philippines, and
Established by substantive law the action affects the personal status of the plaintiff, or any property
law
of said defendant located in the Philippines, the action may be
Establishes relation between the court Establishes relation between commenced and tried in the court of the place where the plaintiff
and subject matter parties
resides, or where the property or any portion thereof is situated or DACOYCOY V. CA, 195 SCRA 641 (1991)
found. (2[c]a)
FACTS Jesus Dacoycoy filed before RTC of Antipolo, Rizal a complaint
Venue of personal actions is (at the option of the plaintiff) against private respondent Rufino de Guzman praying for annulment of 2
deeds of sale involving a parcel of riceland located in Lingayen,
1. where plaintiff or any of the plaintiffs reside Pangasinan, the surrender of the produce, and damages. Before
summons could be served on de Guzman, RTC judge ordered counsel for
2. where defendant or any of the defendants reside petitioner to confer with respondent trial judge on the matter of venue.
After said conference, RTC dismissed the complaint due to improper
3. where the non-resident defendant
venue. RTC found that petitioners action is a real action as it sought not
a. is in the Philippines where he may be found only the annulment of the deeds of sale but also recovery of ownership of
the riceland which was outside of the RTCs territorial jurisdiction.
b. outside the Philippines and the action affects the personal Petitioner appealed to IAC which affirmed RTCs order of dismissal.
statuts of the plaintiff or any property of the defendant located in
the Philippines, either Petitioner faults the IAC in affirming RTC finding that the venue was
improperly laid when de Guzman has not even answered the complaint
1) where the plaintiff resides, or nor waived the venue.
2) where the property or any portion thereof is situated HELD Petition granted. The court can not motu proprio dismiss the case
or found on ground of improper venue. Objections to venue may be waived by the
parties. Improper venue does not necessarily divest the court of
Sec. 4. When Rule not applicable. This Rule shall not apply-
jurisdiction over the subject matter of the controversy.
(a) In those cases where a specific rule or law provides otherwise;
Even granting that the action of petitioner is a real action, respondent
or
trial court would still have jurisdiction over the case, it being a RTC
e.g. Labor cases are filed with the Labor arbiter (RA 1171) vested with the exclusive original jurisdiction over all civil actions which
involve the title to, or possession of, real property, or any interest
(b) Where the parties have validly agreed in writing before the therein.
filing of the action on the exclusive venue thereof. (3a, 5a)
de Leon: This does not apply in summary procedure cases where the
Escolin: the rules now allow raising the issue of improper venue as an court may motu propio dismiss the complaint even on the ground of
affirmative defense in the answer even if there was failure to raise it in a improper venue (SC Resolution 15 October 1991, Sec. 4).
motion to dismiss.
CASES FORTUNE MOTORS V. CA, 178 SCRA 564 (1989)

FACTS Metrobank extended various loans to Fortune which was secured province where the property or part thereof lies. Petition denied. CA
by a real estate mortgage on the Fortune building and lot in Makati. For decision affirmed.
failure of Fortune to pay the loans, Metrobank initiated extrajudicial
foreclosure proceedings. After notice were served, posted and
published, the mortgaged property was sold at a public auction to CLAVECILLA RADIO V. ANTILLON, 19 SCRA 379
Metrobank as the highest bidder. (1967)
FACTS New Cagayan Grocery Bacolod Branch sent a message (REURTEL
3days after the expiration of the 1yr redemption period, Fortune filed a
WASHED NOT AVAILABLE REFINED TWENTY FIFTY IF AGREEABLE
complaint for annulment of the extrajudicial foreclosure sale alleging
SHALL SHIP LATER REPLY) to New Cagayan Grocery CDO Branch thru
that the foreclosure was premature because its obligation to Metrobank
Clavecilla Radio Bacolod. Clavecilla Radio Cagayan received the
was not yet due, publication of the notice of sale was incomplete, there
message. However, in delivering the same to New Cagayan Grocery
was no public auction, and the price for which the property was sold was
CDO, the word NOT between the word WASHED and AVAILABLE
shockingly low.
was omitted, thus changing entirely the contents and purport of the
Before summons could be served, Metrobank filed a MtD the complaint message and causing the addressee to suffer damages.
on the ground that the venue of the action was improperly laid in Manila
New Cagayan filed a complaint against Clavecilla in the MTC. After
for the subject real property is situated in Makati, therefore the action to
service of summons, Clavecilla filed MtD the complaint on the grounds
annul the foreclosure sale should be filed in Makati RTC.
that it states no cause of action and the venue is improperly laid. New
MtD was opposed by Fortune alleging that its action is a personal Cagayan interposed opposition to which Clavecilla filed its rejoinder.
action and that the issue is the validity of the extrajudicial proceedings Thereafter, MTC judge Antillon denied MtD for lack of merit.
so that it may have a new 1yr redemption period.
Clavecilla filed a petition for prohibition and prelim injunction with the
Manila RTC issued an order reserving the resolution of Metrobanks MtD CFI praying that judge Antillon be enjoined from further proceeding with
until after the trial on the merits as the grounds relied upon by the the case on the ground of improper venue. Respondents filed MtD the
defendant were not clear and indubitable. Metrobank filed a MfR but petition but was opposed by Clavecilla. CFI held that Clavecilla may be
was denied by Manila RTC. Metrobank appealed to CA. CA granted and sued in Manila where it has its principal office or in CDO where it was
dismissed the annulment case without prejudice to its being filed in the served with summons thru the branch manager. In other word, CFI
proper venue. upheld the authority of MTC to take cognizance of the case.
HELD An action to annul a real estate mortgage foreclosure sale is no In appealing, Clavecilla contends that the suit against it should be filed in
different from an action to annul a private sale of real property. Both are Manila where it holds its principal office.
actions that affect title and seek recovery of the real property sold. It is
HELD The residence of the corporation is the place where its principal
therefore a real action which should be commenced and tried in the
office is established. Branch offices are not residences where it may be
sued. The phrase where he (defendant) may be found as to venue of Escolin: If it was Roxas who filed the case against Young in Pasay City
actions applies only to non-residents. It does not apply to defendants based on the address in the letterhead, Young would be estopped from
residing in the Philippines. objecting on the ground of improper venue.
YOUNG AUTO V. CA, 223 SCRA 670 (1993) HERNANDEZ V. DBP, 71 SCRA 290 (1976)
Facts: Young Auto (YASCO) sold its shares of stock in Consolidated Mktg Facts: Hernandez resides in Batangas. He was awarded a lot in Quezon
& Devt Corp (CMDC) to Roxas. Purchase price 8M, dp 4M check bal 4M City by DBP. Subsequently, DBP refused to accept Hernandezs payment
in pd checks 1M each. After execution of the agreement, Roxas took full and cancelled the award. Hernandez filed an action to annul the
control of the four markets of CMDC. However YASCO held on to stock cancellation of the award in Batangas. DBP filed MTD on ground of
certificates as security pending full payment. First 4M was honored but improper venue.
the four 1M checks were dishonored. Roxas sold one of the markets to a
3rd party. Out of the proceeds, YASCO rcvd 600k leaving a bal of 3.4M Held: Hernandez's action is not a real but a personal action. His action is
one to declare null and void the cancellation of the lot and house in his
YASCO filed a complaint against Roxas in Cebu RTC praying that Roxas favor which does not involve title and ownership over said properties but
be ordered to pay the bal or that full control of the 3 markets be turned seeks to compel respondent to recognize that the award is a valid and
over to YASCO. Roxas filed MtD, ground: improper venue. RTC subsisting one which it cannot arbitrarily and unilaterally cancel and to
dismissed MTD. accept payment. Such an action is a personal action which may be
properly brought by petitioner in his residence.
Roxas appealed to CA. CA ordered dismissal of the complaint on the
ground of improper venue. YASCO appealed to SC.
LIZARES V. CALAUAG, 4 SCRA 746 (1962)
The Articles of Incorporation of Young Auto Motors stated that its
principal office was in Cebu. In its transactions with Roxas, Young Auto FACTS: Flaviano Cacnio bought from Dr. Antonio Lizares on installment
stated in its letterhead that its principal office was in Manila. Young Auto a parcel of land located in Sinkang Subd Bacolod City. Cacnio made a dp
sued Roxas in Cebu based on such transactions. Roxas files MTD on the of Php1,206 bal Php10,858 to be paid in 10yearly installments.
ground of improper venue.
Cacnio received a letter from Lizares demanding payment of arrears in
Held: A corporation is a resident of the place where its principal office is installment payments, interests, and taxes. Cacnio sent a check to pay
located as stated in the articles of incorporation. Hence, Cebu was a valid the amount due but Lizares returned the check and refused the tender of
venue for Youngs action. payment. Cacnio instituted a civil case in the Rizal CFI praying that
Lizares be ordered to accept the payment being made by him.
Petitioner MtD the complaint due to improper venue for the action CAPATI V. OCAMPO, 113 SCRA 794 (1982)
affects the title or possession of real property located in Bacolod. CFI
Stipulation as to venue which uses the word may is permissive and
denied MtD holding that it was a personal action. Petitioner appealed to
does not limit the venue of the action only to the venue stipulated.
the CA. CA denied petition.
HELD: An action praying that defendant be ordered "to accept the

UNIMASTERS V. CA, 267 SCRA (1997)
payment being made" by plaintiff for the lot which the latter contracted
to buy on installment basis from the former, to pay plaintiff Stipulation as to venue which uses the word shall is permissive and
compensatory damages and attorney's fees and to enjoin defendant and does not limit the venue of the action only to the venue stipulated.
his agents from repossessing the lot in question, is one that affects title
to land, and "shall be commenced and tried in the province where the Escolin: They should have used the words solely, exclusively, or
property or any part thereof lies," because, although the immediate only. Shall is not enough to confer exclusive venue with a court.
remedy is to compel the defendant to accept the tender of payment
allegedly made, it is obvious that this relief is merely the first step to
DIAZ V. ADIONG, 219 SCRA 631 (1993)
establish plaintiff's title to real property.
Filing of answer waives MTD on ground of improper venue.
Escolin: In the Bar exams of 1978, Wigberto Taada was the Bar
examiner. There was a question using the facts of Lizares. The consensus Escolin: the rules now allow raising the issue of improper venue as an
was the case should be filed in the place where the property was located. affirmative defense in the answer even if there was failure to raise it in a
Taada cited the Hernandez case in ruling that the case should be filed in motion to dismiss (Rule 16, Sec. 6).
the residence of the plaintiff. Eventually, both where considered correct.
de Leon: So where should we side now? SWEETLINES V. TEVES, 83 SCRA 361 (1978)
Facts: Boat tickets stipulated that the venue of actions arising out of the
ESUERTE V. CA, 193 SCRA 541 (1991) tickets should be filed in Cebu City.
For purposes of venue of personal actions, the venue is to be determined Held: Although venue may be changed or transferred by agreement of
where the plaintiff or the defendant is actually located. It is actual the parties in writing, such an agreement will not be held valid where it
residence, not legal domicile, which is relevant. practically negates the action of the claimants. Considering the expense
and trouble a passenger residing outside of Cebu City would incur to
de Leon: The meaning of residence in determining venue of personal prosecute a claim in the Cebu City, he would most probably decide not to
actions is the same as residence in determinng venue of estate file the action at all. The condition will thus defeat, instead of enhance,
proceedings. the ends of justice. On the other hand, Sweetlines has branches or offices
in the respective ports of call of its vessels and can afford to litigate in any
of these places. Hence, the filing of the suit in residence of plaintiff, as COVERAGE
was done in the instant case, will not cause inconvience to, much less
I. Applicability
prejudice Sweetlines. The stipulation, if enforced, will be subversive of
the public good or interest, since it will frustrate in meritorious cases, Sec. 1. Scope. - This rule shall govern the summary procedure in
actions of passenger claimants outside of Cebu City, thus placing the Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the
Sweetlines company at a decided advantage over said persons, who may Municipal Trial Courts, and the Municipal Circuit Trial Courts in the
have perfectly legitimate claims against it. The said condition should, following cases falling within their jurisdiction:
therefore, be declared void and unenforceable, as contrary to public
policy A. Civil Cases:
Escolin: The SC characterized a contract of adhesion as void for being (1) All cases of forcible entry and unlawful detainer, irrespective
against public policy. of the amount of damages or unpaid rentals sought to be recovered.
Where attorney's fees are awarded, the same shall not exceed twenty
de Leon: Contrast the rationale in the cases of Sweetlines and Clavecilla thousand pesos (P20,000.00).
re: confusion and untold inconvenience on the part of defendants.
Now, the amount of damages is irrelevant.
UNIFORM PROCEDURE IN TRIAL COURTS (2) All other civil cases, except probate proceedings, where the
total amount of the plaintiff's claim does not exceed ten thousand
RULE 5 pesos (P10,000.00), exclusive of interest and costs.
Section 1. Uniform procedure. The procedure in the Municipal B. Criminal Cases:

Trial Courts shall be the same as in the Regional Trial Courts, except
(a) where a particular provision expressly or impliedly applies only to (1) Violations of traffic laws, rules and regulations;
either of said courts, or (b) in civil cases governed by the Rule on
(2) Violations of the rental law;
Summary Procedure. (n)
(3) Violations of municipal or city ordinances;
Sec. 2. Meaning of terms. The term "Municipal Trial Courts" as
used in these Rules shall include Metropolitan Trial Courts, Municipal (4) All other criminal cases where the penalty prescribed by law
Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit for the offense charged is imprisonment not exceeding six months, or
Trial Courts. (la) a fine not exceeding (P1,000.00), or both, irrespective of other
imposable penalties, accessory or otherwise, or of the civil liability
RULE ON SUMMARY PROCEDURE (SC RESOLUTION DATED
arising therefrom: Provided, however, that in offenses involving
OCTOBER 15, 1991)
damage to property through criminal negligence, this Rule shall
govern where the imposable fine does not exceed ten thousand pesos 1. civil case where the plaintiffs cause of action is pleaded in the same
(P10,000.00). complaint with another cause of action subject to the ordinary
procedure
This Rule shall not apply to a civil case where the plaintiffs cause
of action is pleaded in the same complaint with another cause of 2. criminal case where the offense charged is necessarily related to
action subject to the ordinary procedure; nor to a criminal case where another criminal case subject to the ordinary procedure.
the offense charged is necessarily related to another criminal case
subject to the ordinary procedure. Recall that criminal cases that should undergo reconciliation proceedings
under the Katarungang Pambaranggay are offenses punishable by not
Rules on summary procedure are applicable in the following cases before more than 1 year or a fine not over P5,000
the MTCs
de Leon: Therefore nearly all summary procedure criminal cases must go
1. Civil cases through the Katarungang Pambaraggay.
a. forcible entry and unlawful detainer, regardless of amount of Sec. 2. Determination of applicability. - Upon the filing of a civil or
damages (compensation for use of property) or unpaid rentals criminal action, the court shall issue an order declaring whether or not
the case shall be governed by this Rule. A patently erroneous
b. except probate proceedings, civil cases where the total amount determination to avoid the application of the Rule on Summary
of the plaintiff's claim does not exceed P10,000 exclusive of Procedure is a ground for disciplinary action.
interest and costs.
Upon filing of the initiatory pleading, the court shall declare whether the
2. Criminal cases case is governed by the rule on summary procedure.
a. traffic violations
b. rental law violations CIVIL CASES

II. Civil Cases
c. municipal or city ordinances violations
Procedure in summary civil cases
d. damage to property through criminal negligence, where the
imposable fine does not exceed P10,000 1. complaint is filed
e. penalty not exceeding 6-month imprisonment, or a P1,000 fine 2. court declares it falls under summary procedure
Exceptions: 3. may dismiss the case motu propio; if not, issue summons
4. defendant files his answer within 10 days (defenses and claims not 8. parties shall submit the affidavits of their witnesses and other
pleaded are waived, except lack of jurisdiction over subject matter) evidence on the factual issues defined in the order, together with
their position papers, within 10 days issuance of record of preliminary
5. answer to counterclaims or cross-claims within 10 days from service conference
of the answer
9. within 30 days after receipt of the last affidavits and position papers,
6. preliminary conference not later than 30 days after the last answer is or the expiration of the period for filing the same, the court either
filed; absence of
a. renders judgment
a. plaintiff cause for the dismissal of his complaint; defendant
entitled to judgment on his counterclaim as if plaintiff did not file b. requires clarification of certain material facts, within 10 days
an answer to the counterclaim; all cross-claims dismissed from receipt of said order; then render judgment within 15 days
from receipt of the last clarificatory affidavits, or the expiration
b. sole defendant - plaintiff shall be entitled to judgment as if of the period for filing the same
defendant did not file an answer
Sec. 3. Pleadings. -
c. 1 or some of many defendants sued under a common cause of
action who had pleaded a common defense no adverse effect A. Pleadings allowed. - The only pleadings allowed to be filed are
on the defense the complaints, compulsory counterclaims and cross-claims' pleaded
in the answer, and the answers thereto.
7. the court issues record of preliminary conference, within 5 days after
the termination of the preliminary conference, covering B. Verifications. - All pleadings shall be verified.
a. terms of any amicable settlement Allowable pleadings (must all be verified)
b. stipulations or admissions entered into by the parties 1. complaint
c. Whether, on the basis of the pleadings and the stipulations and 2. compulsory counterclaims
admissions made by the parties, judgment may be rendered
without the need of further proceedings, in which event the 3. cross-claims in the answer
judgment shall be rendered within 30 days from issuance of the
4. answer
order
Note that permissive counterclaims and 3rd party complaints are not
d. material facts which remain controverted
allowed.
e. matters intended to expedite the disposition of the case.
Sec. 4. Duty of Court. - After the court determines that the case Sec. 6. Effect of failure to answer. - Should the defendant fail to
falls under summary procedure, it may, from an examination of the answer the complaint within the period above provided, the court,
allegations therein and such evidence as may be attached thereto, motu proprio, or on motion of the plaintiff, shall render judgment as
dismiss the case outright on any of the grounds apparent therefrom may be warranted by the facts alleged in the complaint and limited to
for the dismissal of a civil action. If no ground for dismissal is found it what is prayed for therein: Provided, however, that the court may in
shall forthwith issue summons which shall state that the summary its discretion reduce the amount of damages and attorney's fees
procedure under this Rule shall apply. claimed for being excessive or otherwise unconscionable. This is
without prejudice to the applicability of Section 4, Rule 15 of the
The only grounds where the defendant may file a MTD (Sec. 19) Rules of Court, if there are two or more defendants.
1. lack of jurisdiction cf Rule 15, Sec. 4
2. failure to resort to Katarungang Pambaranggay when required Sec. 4. Hearing of motion. Except for motions which the court
may act upon without prejudicing the rights of the adverse party,
de Leon: Note that in summary procedure, the GR is the court may motu
every written motion shall be set for hearing by the applicant.
propio dismiss the case. In ordinary civil actions, the court can motu
propio dismiss the case only on specific grounds. Every written motion required to be heard and the notice of the
hearing thereof shall be served in such a manner as to ensure its
Escolin: Dacoycoy case does not apply in cases of summary procedure.
receipt by the other party at least three (3) days before the date
The court has the power to motu proprio dismiss the case on the ground
of hearing, unless the court for good cause sets the hearing on
that venue was improperly laid. If it does not, the ground of improper
shorter notice. (4a)
venue should be included as a special defense in the defendants answer,
otherwise it is deemed waived (Sec. 5). Failure of the defendant to answer the court shall render judgment as
may be warranted by the facts alleged in the complaint and limited to
Sec. 5. Answer. - Within ten (10) days from service of summons,
what is prayed for; the court may in its discretion reduce the amount of
the defendant shall file his answer to the complaint and serve a copy
damages and attorney's fees claimed for being excessive or otherwise
thereof on the plaintiff. Affirmative and negative defenses not
unconscionable.
pleaded therein shall be deemed waived, except for lack of
jurisdiction over the subject matter. Cross-claims and compulsory de Leon: Note that when the defendant fails to answer in summary
counterclaims not asserted in the answer shall be considered barred. procedure, the court may motu propio rule for the plaintiff. In ordinary
The answer to counterclaims or cross-claims shall be filed and served civil actions, the court can do so only upon motion by the plaintiff to
within ten (10) days from service of the answer in which they are declare the defendant in default and after plaintiff supports his claim
pleaded. with evidence.
Sec. 7. Preliminary conference; appearance of parties. - Not later a) Whether the parties have arrived at an amicable settlement,
than thirty (30) days after the last answer is filed, a preliminary and if so, the terms thereof;
conference shall be held. The rules on pre-trial in ordinary cases shall
be applicable to the preliminary conference unless inconsistent with b) The stipulations or admissions entered into by the parties;.
the provisions of this Rule.
c) Whether, on the basis of the pleadings and the stipulations
The failure of the plaintiff to appear in the preliminary conference and admissions made by the parties, judgment may be rendered
shall be a cause for the dismissal of his complaint. The defendant who without the need of further proceedings, in which event the judgment
appears in the absence of the plaintiff shall be entitled to judgment shall be rendered within thirty (30) days from issuance of the order;
on his counterclaim in accordance with Section 6 hereof. All cross-
d) A clear specification of material facts which remain
claims shall be dismissed.
controverted; and
If a sole defendant shall fail to appear, the plaintiff shall be
e) Such other matters intended to expedite the disposition of
entitled to judgment in accordance with Section 6 hereof. This Rule
the case.
shall not apply where one of two or more defendants sued under a
common cause of action who had pleaded a common defense shall Sec. 9. Submission of affidavits and position papers. - Within ten
appear at the preliminary conference. (10) days from receipt of the order mentioned in the next preceding
section, the parties shall submit the affidavits of their witnesses and
Effect of failure to appear at the preliminary conference by
other evidence on the factual issues defined in the order, together
1. the plaintiff cause for the dismissal of his complaint; defendant who with their position papers setting forth the law and the facts relied
appears entitled to judgment on his counterclaim as may be upon by them.
warranted by the facts alleged. All cross-claims shall be dismissed.
Sec. 10. Rendition of judgment. - Within thirty (30) days after
2. the sole defendant plaintiff entitled to judgment as may be receipt of the last affidavits and position papers, or the expiration of
warranted by the facts alleged in his complaint the period for filing the same, the court shall render judgment.
3. one of many defendants sued under a common cause of action who However should the court find it necessary to clarify certain
had pleaded a common defense case continues material facts, it may, during the said period, issue an order
specifying the matters to be clarified, and require the parties to
Sec. 8. Record of preliminary conference. - Within five (5) days submit affidavits or other evidence on the said matters within ten (10)
after the termination of the preliminary conference, the court shall days from receipt of said order. Judgment shall be rendered within
issue an order stating the matters taken up therein, including but not fifteen (15) days after the receipt of the last clarificatory affidavits, or
limited to: the expiration of the period for filing the same.
The court shall not resort to the clarificatory procedure to gain 8. If the accused is in custody for the crime charged, he shall be
time for the rendition of the judgment. immediately arraigned and if he enters a plea of guilty, he shall
forthwith be sentenced.
CRIMINAL CASES 9. Preliminary conference

III. Criminal Cases a. no admission by the accused shall be used against him unless
reduced to writing and signed by the accused and his counsel
Summary Procedure in Criminal cases
b. parties must manifest intention to present additional affidavits or
1. Initiated either by complaint or information (only by information, in
counter-affidavits as part of his direct evidence, and it should be
Metro Manila and Chartered cities, except when the offense cannot
allowed by the court; filed and served within 3 days after the
be prosecuted de oficio)
termination of the preliminary conference; accused may file and
2. As many copies of the information or complaint, with affidavits of serve his counter-affidavits within 3 days from such service.
complainant and his witnesses, as there are accused plus 2, within 5
10. Trial the affidavits submitted by the parties shall constitute the
days from filing; otherwise the case may be dismissed
direct testimonies, subject to cross-examination, redirect or re-cross
3. Court declares if the case is covered by the rule on summary examination; failure of affiant to testify will render his affidavit
procedure incompetent for the offeror, but admissible for the opposing party;
witnesses must submit affidavits before testifying, except on rebuttal
4. If commenced by complaint and patently without basis or merit, or surrebuttal
court may dismiss the case; otherwise, court requires accused to
submit his counter-affidavit and the affidavits of his witnesses and 11. Accused shall not be arrested, except for failure to appear when
any evidence in his behalf required; Accused may be released either on bail or recognizance
5. Filing and service on prosecution of defenses evidence within 10 12. the court renders judgment within 30 days after the termination of
days from receipt of the order trial.
6. prosecution may file reply affidavits within 10 days after receipt of Note that preliminary conference is required in both civil and criminal
the counter-affidavits of the defense. cases.
7. Court either dismisses the case, or set arraignment and trial In criminal cases, there is hearing and actual trial. In civil cases, only the
pleadings, affidavit, evidence, and position papers are considered. There
is no hearing or trial in summary civil cases.
Only those who have executed affidavits may testify on the stand, except reply affidavits within ten (10) days after receipt of the counter-
rebuttal and sur-rebuttal witnesses. affidavits of the defense.
Sec. 11. How commenced. - The filing of criminal cases falling Ground for motu propio dismissal of criminal case covered by summary
within the scope of this Rule shall be either by complaint or by procedure initiated by complaint - patently without basis or merit
information: Provided, however, that in Metropolitan Manila and in
Chartered Cities. such cases shall be commenced only by information, The court can not dismiss a criminal case outright if it is commenced by
except when the offense cannot be prosecuted de oficio. information.
The complaint or information shall be accompanied by the Sec. 13. Arraignment and trial. - Should the court, upon a
affidavits of the complainant and of his witnesses in such number of consideration of the complaint or information and the affidavits
copies as there are accused plus two (2) copies for the court's files. If submitted by both parties, find no cause or ground to hold the
this requirement is not complied with within five (5) days from date of accused for trial, it shall order the dismissal of the case; otherwise,
filing, the case may be dismissed. the court shall set the case for arraignment and trial.
In Metro Manila, offenses can not be commenced by complaint, except if If the accused is in custody for the crime charged, he shall be
it can not be prosecuted de oficio. (cf with the 2000 Criminal Procedure immediately arraigned and if he enters a plea of guilty, he shall
Rules). forthwith be sentenced.
Sec. 12. Duty of court. - Sec. 14. Preliminary conference. - Before conducting the trial, the
court shall call the parties to a preliminary conference during which a
(a) If commenced by compliant. - On the basis of the compliant stipulation of facts may be entered into, or the propriety of allowing
and the affidavits and other evidence accompanying the same, the the accused to enter a plea of guilty to a lesser offense may be
court may dismiss the case outright for being patently without basis considered, or such other matters may be taken up to clarify the
or merit and order the release of the accused if in custody. issues and to ensure a speedy disposition of the case. However, no
admission by the accused shall be used against him unless reduced to
(b) If commenced by information. - When the case is commenced writing and signed by the accused and his counsel. A refusal or failure
by information, or is not dismissed pursuant to the next preceding to stipulate shall not prejudice the accused.
paragraph, the court shall issue an order which, together with copies
of the affidavits and other evidence submitted by the prosecution, Sec. 15. Procedure of trial. - At the trial, the affidavits submitted
shall require the accused to submit his counter-affidavit and the by the parties shall constitute the direct testimonies of the witnesses
affidavits of his witnesses as well as any evidence in his behalf, who executed the same. Witnesses who testified may be subjected to
serving copies thereof on the complainant or prosecutor not later cross-examination, redirect or re-cross examination. Should the
than ten (10) days from receipt of said order. The prosecution may file affiant fail to testify, his affidavit shall not be considered as
competent evidence for the party presenting the affidavit, but the apply to criminal cases where the accused was arrested without a
adverse party may utilize the same for any admissible purpose. warrant.
Except on rebuttal or surrebuttal, no witness shall be allowed to Failure to comply with Katarungang Pambaranggay when required is
testify unless his affidavit was previously submitted to the court in ground for dismissal of the complaint, unless the accused was arrested
accordance with Section 12 hereof. without a warrant.
However, should a party desire to present additional affidavits or Sec. 19. Prohibited pleadings and motions. - The following
counter-affidavits as part of his direct evidence, he shall so manifest pleadings, motions or petitions shall not be allowed in the cases
during the preliminary conference, stating the purpose thereof. If covered by this Rule:
allowed by the court, the additional affidavits of the prosecution or
the counter-affidavits of the defense shall be submitted to the court (a) Motion to dismiss the complaint or to quash the complaint or
and served on the adverse party not later than three (3) days after the information except on the ground of lack of jurisdiction over the
termination of the preliminary conference. If the additional affidavits subject matter, or failure to comply with the preceding section
are presented by the prosecution, the accused may file his counter- (concillation proceedings);
affidavits and serve the same on the prosecution within three (3) days
(b) Motion for a bill of particulars;
from such service.
(c) Motion for new trial, or for reconsideration of a judgment, or
Sec. 16. Arrest of accused. - The court shall not order the arrest of
for opening of trial;
the accused except for failure to appear whenever required. Release
of the person arrested shall either be on bail or on recognizance by a (d) Petition for relief from judgment;
responsible citizen acceptable to the court.
(e) Motion for extension of time to file pleadings, affidavits or any
Sec. 17. Judgment. - Where a trial has been conducted, the court other paper;
shall promulgate the judgment not later than thirty (30) days after the
termination of trial. (f) Memoranda;
IV. Common Provisions (g) Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court;
Sec. 18. Referral to Lupon. - Cases requiring referral to the Lupon
for conciliation under the provisions of Presidential Decree No. 1508 (h) Motion to declare the defendant in default;
where there is no showing of compliance with such requirement, shall
(i) Dilatory motions for postponement;
be dismissed without prejudice and may be revived only after such
requirement shall have been complied with. This provision shall not (j) Reply;
(k) Third party complaints; affiants which are admissible in evidence, and shall show their
competence to testify to the matters stated therein.
(l) Interventions.
A violation of this requirement may subject the party or the
Prohibited pleadings and motions counsel who submits the same to disciplinary action, and shall be
cause to expunge the inadmissible affidavit or portion thereof from
1. Motion to dismiss the complaint or to quash the complaint or
the record.
information, except on the ground of lack of jurisdiction over the
subject matter, or failure to comply with the Katarungang Special requirement for affidavits under summary procedure: must state
Pambaranggay only admissible evidence and show their competence to testify on such
matters. Otherwise, the offering party or counsel may be subject to
2. Motion for a bill of particulars
disciplinary action and the inadmissible portion is expunged
3. MNT, or MfR, or motion for opening of trial
Sec. 21. Appeal. - The judgment or final order shall be appealable
4. Petition for relief from judgment to the appropriate regional trial court which shall decide the same in
accordance with Section 22 of Batas Pambansa Blg. 129. The decision
5. Motion for extension of time to file pleadings, affidavits or any other of the regional trial court in civil cases governed by this Rule,
paper including forcible entry and unlawful detainer, shall be immediately
executory, without prejudice to a further appeal that may be taken
6. Memoranda
therefrom. Section 10 of Rule 70 (of the 1964 Rules of Court) shall be
7. Petition for certiorari, mandamus, or prohibition against any deemed repealed.
interlocutory order issued by the court
Summary decisions are appealable to the RTC. RTC decision in ejectment
8. Motion to declare the defendant in default cases are immediately executory.
9. Dilatory motions for postponement Sec. 22. Applicability of the regular rules. - The regular procedure
prescribed in the Rules of Court shall apply to the special cases herein
10. Reply provided for in a suppletory capacity insofar as they are not
inconsistent herewith.
11. Third party complaints
Sec. 23. Effectivity. xxx
12. Interventions.
CASES
Sec. 20. Affidavits. - The affidavits required to be submitted under
this Rule shall state only facts of direct personal knowledge of the
COMBATE V. SAN JOSE, 135 SCRA (1985) PLEADINGS (RULE 611)
Facts: Combate was charged with theft of a rooster before the MTC. He
pleaded not guilty without aid of counsel. Without trial, judgment was
KINDS OF PLEADINGS
rendered based on the affidavits and counter-affidavits presented.
Held: Summary procedure is applicable for offenses punishable by not RULE 6

more than 6 months. Theft is punishable up to 2 years and 4 months. Section 1. Pleadings defined.
Summary procedure is inapplicable. Even if applicable, summary
procedure does not dispense with trial in criminal cases. All it allows is Pleadings are the written statements of the respective claims and
affidavits to be considered as direct testimony, but subject to cross- defenses of the parties submitted to the court for appropriate
examination. Otherwise, this would violate the right of the accused to judgment. (1a)
due process (de Leon: and his right to confront witnesses against him).
Sec. 2. Pleadings allowed.
de Leon: contrast this case with the prevailent practice of courts, even in
cases not covered by the rules on summary procedure, to substitute The claims of a party are asserted in a complaint, counterclaim,
direct examination with affidavits of the witnesses, subject to cross- cross-claim, third (fourth, etc.)-party complaint, or complaint-in-
examination. intervention.
BAYUBAY V. CA, 224 SCRA 557 (1993) The defenses of a party are alleged in the answer to the pleading
Facts: Bayubay files an ejectment case against Big Mak Burger. Pre-trial asserting a claim against him.
was terminated, but the court ordered only the submission of position
papers. 3 months later, the court ruled that Big Mak should be ejected.
An answer may be responded to by a reply. (n)
Held: The rules on summary procedure require that immediately after
the preliminary conference, an order should be issued distinctly setting
forth the issues of the case and other matters taken up during the
preliminary conference. This is important because only after receipt of Sec. 3. Complaint.
the order does the 10 day period to submit affidavits and other evidence
The complaint is the pleading alleging the plaintiff's cause or
begin to run. Failure of the MTC to issue such order means the 10 day
causes of action. The names and residences of the plaintiff and
period never began to run. It could not therefore have decided the case
defendant must be stated in the complaint. (3a)
then. Furthermore, this was not a pure question of law as the defendant
claimed reimbursement for expenses and damages.
Sec. 4. Answer. negative defense specific denial of the material fact or facts alleged in
the pleading of the claimant essential to his cause or causes of action.
An answer is a pleading in which a defending party sets forth his
defenses. (4a) affirmative defense an allegation of a new matter which, while
hypothetically admitting the material allegations in the pleading of the
claimant, would nevertheless prevent or bar recovery by him
Pleadings written statements of the respective claims and Affirmative defenses
defenses of the parties submitted to the court for appropriate
judgment 1. fraud
Complaint the pleading alleging the plaintiff's cause or causes of 2. statute of limitations
action
3. release
Answer a pleading in which a defending party sets forth his
defenses. 4. payment
5. illegality
Sec. 5. Defenses. Defenses may either be negative or 6. statute of frauds

affirmative.
7. estoppel
(a) A negative defense is the specific denial of the material fact or
8. former recovery
facts alleged in the pleading of the claimant essential to his cause or
causes of action. 9. discharge in bankruptcy
(b) An affirmative defense is an allegation of a new matter which, 10. other matter by way of confession and avoidance.
while hypothetically admitting the material allegations in the
pleading of the claimant, would nevertheless prevent or bar recovery
by him. The affirmative defenses include fraud, statute of limitations,
Sec. 6. Counterclaim.
release, payment, illegality, statute of frauds, estoppel, former
recovery, discharge in bankruptcy, and any other matter by way of A counterclaim is any claim which a defending party may have
confession and avoidance. (5a) against an opposing party. (6a)
Sec. 7. Compulsory counterclaim. A compulsory counterclaim is 3. must be within the jurisdiction of the court both as to the amount
one which, being cognizable by the regular courts of justice, arises out and the nature
of or is connected with the transaction or occurrence constituting the
subject matter of the opposing party's claim and does not require for In an original action before the RTC, a counterclaim may be considered
its adjudication the presence of third parties of whom the court compulsory regardless of the amount.
cannot acquire jurisdiction. Such a counterclaim must be within the
A permissive counterclaim must also be within the jurisdiction of the
jurisdiction of the court both as to the amount and the nature thereof,
court, and must not require the presence of 3rd parties over whom the
except that in an original action before the Regional Trial Court, the
court can not acquire jurisdiction. It must not be connected with the
counterclaim may be considered compulsory regardless of the
transaction or occurrence constituting the subject matter of the
amount. (n)
opposing partys claim, otherwise, it would be a compulsory
Sec. 8. Cross-claim. A cross-claim is any claim by one party counterclaim.
against a co-party arising out of the transaction or occurrence that is
Cross-claim any claim by one party against a co-party arising out of the
the subject matter either of the original action or of a counterclaim
transaction or occurrence that is the subject matter either of the original
therein. Such cross-claim may include a claim that the party against
action or of a counterclaim therein.
whom it is asserted is or may be liable to the cross-claimant for all or
part of a claim asserted in the action against the cross-claimant. (7)
Sec. 9. Counter-counterclaims and counter-cross-claims. A Sec. 10. Reply. A reply is a pleading, the office or function of
counterclaim may be asserted against an original counter-claimant. which is to deny, or allege facts in denial or avoidance of new matters
alleged by way of defense in the answer and thereby join or make
A cross-claim may also be filed against an original cross-claimant.
issue as to such new matters. If a party does not file such reply, all the
(n)
new matters alleged in the answer are deemed controverted.
Counterclaim any claim which a defending party may have against an
If the plaintiff wishes to interpose any claims arising out of the
opposing party
new matters so alleged, such claims shall be set forth in an amended
Requirements for a compulsory counterclaim or supplemental complaint. (11)
1. arises out of or is connected with the transaction or occurrence

constituting the subject matter of the opposing party's claim
Reply a pleading to deny, or allege facts in denial or avoidance of new
2. does not require for its adjudication the presence of third parties of matters alleged by way of defense in the answer and thereby join or
whom the court cannot acquire jurisdiction. make issue as to such new matters.
If a party does not file such reply, all the new matters alleged in the claim. In proper cases, he may also assert a counterclaim against the
answer are deemed controverted. original plaintiff in respect of the latter's claim against the third-party
plaintiff. (n)
If the plaintiff wishes to interpose any claims arising out of the new
matters so alleged, such claims shall be set forth in an amended or CASES
supplemental complaint. (e.g. in a case for recovery of land, defendant
alleges that he bought the land from plaintiffs predecessor-in-interest.
Plaintiff can file an amended complaint to annul the sale to defendant). CALO V. AJAX, 22 SCRA 996 (1968)
Counterclaims that are beyond the jurisdiction of the MTC are not
Sec. 11. Third, (fourth, etc.)-party complaint. A third (fourth, compulsory and are not waived by the failure to set up before the MTC.
etc.)-party complaint is a claim that a defending party may, with The rules allow such counterclaims to be set-up only for the defendant to
leave of court, file against a person not a party to the action, called prevent plaintiff from recovering from him. This means that should the
the third (fourth, etc.)-party defendant, for contribution, indemnity, court find both plaintiff's complaint and defendant's counterclaim (for an
subrogation or any other relief, in respect of his opponent's claim. amount exceeding said court's jurisdiction) meritorious, it will simply
(12a) dismiss the complaint on the ground that defendant has a bigger credit.
However, any counterclaim set-up in excess of the courts jurisdiction is
waived. Failure of the defendant to set-up such claim does not bar him
Third (fourth, etc.)-party complaint a claim that a defending party may, from filing a separate civil action on the same claim before the RTC.
with leave of court, file against a person not a party to the action for
contribution, indemnity, subrogation or any other relief, in respect of his de Leon: compare this with the Progressive Development Corp. v. CA, 301
opponent's claim. SCRA 637 (1999) which Escolin said was wrong.
Sec. 12. Bringing new parties. When the presence of parties

other than those to the original action is required for the granting of SINGAPORE AIRLINES V. CA, 243 SCRA (1995)
complete relief in the determination of a counterclaim or cross-claim, Facts: Rayos was an employee of Aramco. Aramco reimburses the
the court shall order them to be brought in as defendants, if amounts its employees pay for excess baggage. Rayos validly claimed
jurisdiction over them can be obtained. (l4) reimbursement. Aramco investigates Rayo for fraudulent claims. Rayo
asked Singapore Airlines to issue a certification. Singapore delays in
This refers to necessary parties.
issuing the certification. Rayos contract with Aramco was not renewed.
Sec. 13. Answer to third (fourth, etc.)- party complaint. A third Rayo sues Singapore. Singapore blames PAL and files a 3 rd party
(fourth, etc.)-party defendant may allege in his answer his defenses, complaint against PAL. PAL answers that the tampering was Singapores
counterclaims or cross-claims, including such defenses that the third fault. Judge rules for Rayo on the main case, and for Singapore in the 3rd
(fourth, etc.)- party plaintiff may have against the original plaintiff's party complaint. Judgment for Rayo became final. PAL appeals the 3 rd
party complaint claiming for the 1st time that Rayo was not entitled to (a) Paragraphs. The allegations in the body of a pleading shall
damages from Singapore because his contract with Aramco was not be divided into paragraphs so numbered as to be readily identified,
renewed because of his unsatisfactory performance. each of which shall contain a statement of a single set of
circumstances so far as that can be done with convenience. A
Held: Judgment for Rayo being final, PAL may not question it. A 3 rd-party paragraph may be referred to by its number in all succeeding
defendant is allowed to set up in his answer the defenses which the 3 rd- pleadings. (3a)
party plaintiff (original defendant) has or may have against the original
plaintiff's claim. However, he must do so in his 3rd party answer, and not (b) Headings. When two or more causes of action are joined, the
raise it for the 1st time on appeal. PAL should have raised in its 3rd party statement of the first shall be prefaced by the words "first cause of
answer everything that it may conceivably interpose by way of its action," of the second by "second cause of action," and so on for the
defense, including specific denials of allegations in the main complaint others.
which implicated it along with Singapore.
When one or more paragraphs in the answer are addressed to one
of several causes of action in the complaint, they shall be prefaced by
PARTS OF A PLEADING the words "answer to the first cause of action" or "answer to the
second cause of action" and so on; and when one or more paragraphs
RULE 7 of the answer are addressed to several causes of action, they shall be
prefaced by words to that effect. (4)
Section 1. Caption. The caption sets forth the name of the
court, the title of the action, and the docket number if assigned. (c) Relief. The pleading shall specify the relief sought, but it may
add a general prayer for such further or other relief as may be deemed
The title of the action indicates the names of the parties. They
just or equitable. (3a, R6)
shall all be named in the original complaint or petition; but in
subsequent pleadings, it shall be sufficient if the name of the first (d) Date. Every pleading shall be dated. (n)
party on each side be stated with an appropriate indication when
there are other parties. Escolin: Never mind this section.
Their respective participation in the case shall be indicated. (1a, Sec. 3. Signature and address. Every pleading must be signed by
2a) the party or counsel representing him, stating in either case his
address which should not be a post office box.
Sec. 2. The body. The body of the pleading sets forth its
designation, the allegations of the party's claims or defenses, the The signature of counsel constitutes a certificate by him that he
relief prayed for, and the date of the pleading. (n) has read the pleading; that to the best of his knowledge, information,
and belief there is good ground to support it; and that it is not
interposed for delay.
An unsigned pleading produces no legal effect. However, the A pleading is verified by an affidavit that the affiant has read the
court may, in its discretion, allow such deficiency to be remedied if it pleading and that the allegations therein are true and correct of his
shall appear that the same was due to mere inadvertence and not personal knowledge or based on authentic records.
intended for delay. Counsel who deliberately files an unsigned
pleading, or signs a pleading in violation of this Rule, or alleges A pleading required to be verified which contains a verification
scandalous or indecent matter therein, or fails to promptly report to based on "information and belief, or upon "knowledge, information
the court a change of his address, shall be subject to appropriate and belief," or lacks a proper verification, shall be treated as an
disciplinary action. (5a) unsigned pleading. (4a)
Escolin: A post office box address is not allowed because receipt of Memorize!
pleadings will be adversely affected.
Verification affidavit by an affiant that he has read the pleading and
Significance of counsels signature that the allegations therein are true and correct of his personal
knowledge or based on authentic records.
1. The signature of counsel constitutes a certificate by him that he has
read the pleading; that to the best of his knowledge, information, Note that belief as basis for verification has been deleted by a 1 May
and belief there is good ground to support it; and that it is not 2000 amendment.
interposed for delay.
based on "information and belief," or upon "knowledge, information and
2. An unsigned pleading produces no legal effect. However, the court belief" is not sufficient verification.
may, in its discretion, allow such deficiency to be remedied if it shall
Not all pleadings need to be verified.
appear that the same was due to mere inadvertence and not
intended for delay. Sec. 5. Certification against forum shopping. The plaintiff or
principal party shall certify under oath in the complaint or other
3. Counsel who deliberately files an unsigned pleading, or signs a
initiatory pleading asserting a claim for relief, or in a sworn
pleading in violation of this Rule, or alleges scandalous or indecent
certification annexed thereto and simultaneously filed therewith: (a)
matter therein, or fails to promptly report to the court a change of his
that he has not theretofore commenced any action or filed any claim
address, shall be subject to appropriate disciplinary action.
involving the same issues in any court, tribunal or quasi-judicial
Sec. 4. Verification. Except when otherwise specifically required agency and, to the best of his knowledge, no such other action or
by law or rule, pleadings need not be under oath, verified or claim is pending therein; (b) if there is such other pending action or
accompanied by affidavit. claim, a complete statement of the present status thereof; and (c) if
he should thereafter learn that the same or similar action or claim has
been filed or is pending, he shall report that fact within five (5) days
therefrom to the court wherein his aforesaid complaint or initiatory cf Rule 16, Sec. 5
pleading has been filed.
Sec. 5. Effect of dismissal. Subject to the right of appeal, an
Failure to comply with the foregoing requirements shall not be order granting a motion to dismiss based on paragraphs (f), (h)
curable by mere amendment of the complaint or other initiatory and (i) of section 1 hereof shall bar the refiling of the same action
pleading but shall be cause for the dismissal of the case without or claim. (n)
prejudice, unless otherwise provided, upon motion and after hearing.
The submission of a false certification or non-compliance with any of Section 1. Grounds. Within the time for but before filing the
the undertakings therein shall constitute indirect contempt of court, answer to the complaint or pleading asserting a claim, a motion
without prejudice to the corresponding administrative and criminal to dismiss may be made on any of the following grounds:
actions. If the acts of the party or his counsel clearly constitute willful
(f) That the cause of action is barred by a prior judgment or by
and deliberate forum shopping, the same shall be ground for
the statute of limitations;
summary dismissal with prejudice and shall constitute direct
contempt, as well as a cause for administrative sanctions. (n) (h) That the claim or demand set forth in the plaintiff's pleading
has been paid, waived, abandoned, or otherwise extinguished;
Certification against forum shopping (applies to initiatory pleadings; de
Leon: and also to petitions for review, and petition for review on (i) That the claim on which the action is founded is unenforceable
certiorari) under the provisions of the statute of frauds; xxx
1. that he has not theretofore commenced any action or filed any claim CASES
involving the same issues in any court, tribunal or quasi-judicial
agency and, to the best of his knowledge, no such other action or
claim is pending therein CHAVEZ V. SANDIGANBAYAN, 193 SCRA 282
(1991)
2. if there is such other pending action or claim, a complete statement
A claim for damages based on malice and evident bad faith of a litigants
of the present status thereof; and
counsel in filing a case is not a compulsory counterclaim in the case filed
3. if he should thereafter learn that the same or similar action or claim against him. It must be filed as a separate and distinct civil action for
has been filed or is pending, he shall report that fact within 5 days to damages against such counsel. When a lawyer acts in the name of a
the court wherein his aforesaid complaint or initiatory pleading has client, he should not be sued in a counterclaim in the very same case he
been filed has filed only as counsel and not as a party. A counterclaim is possible
only against a party to the action.
If dismissal of a case on the ground of lack of certificate against forum
shopping is silent, it is deemed to be without prejudice. If forum
shopping was willful and deliberate, dismissal shall be with prejudice. BULACAN V. TORCINO, 134 SCRA 252 (1985)
Facts: Complaint for forcible entry was signed by a non-lawyer friend of JUREIDINI V. CA, 83 SCRA 90 (1978)
the plaintiff. Judgment for plaintiff. Defendant appeals before the RTC
Lawyers' rights to fees from their clients cannot have a standing higher
and moves to dismiss the case on the ground that the complaint was not
than the rights of the clients or parties themselves and may not be
signed by the plaintiff or by an attorney.
invoked by the lawyers themselves as a ground for disapproving or
Held: The complaint is valid as non-lawyer friends may assist litigants otherwise holding in abeyance the approval of the compromise
before the MTC. However, in cases before the RTC, the litigant must be agreement, since said rights can be enforced in the proper court in an
aided by a member of the bar. appropriate proceeding. A petition for intervention cannot prevent the
approval of a compromise agreement entered into by and between the
parties litigants and the same will be denied where the claim of the
ESTOESTA V. CA, 191 SCRA 303 (1990) intervenor can be properly ventiliated before the proper court in a
separate proceeding.
Facts: Accused files motion to withdraw petition for review of an RTC
judgment modifying an MTC conviction for slight physical injuries, in Escolin: In criminal cases, the accused has a constitutional right to
order to apply for probation. Probation was denied. Accused now moves counsel. Hence if his defense was handled by a fake attorney which
to reconsider the withdrawal and to reinstate the petition for review resulted in to a conviction, the case should be remanded. The same is
because its withdrawal was filed without advice of counsel. true when it comes to civil cases (Telan v. CA, 1991)
Held: A party can always conduct litigation personally. If in the process
his cause suffers reverses, he only has himself to blame. STO. TOMAS UNIVERSITY V. SURLA, 294 SCRA
382 (1998) *
CORTEZ V. CA, 83 SCRA 31 (1978) A party need not execute a certification of non-forum shopping on a
compulsory counterclaim. Only a permissive counterclaim must contain
Until counsel of record formally withdraws, court processes may be
such certification.
validly served upon him, even if his services have in fact been terminated.
Service to him, is service to his client, even if he returns the document
served on him to the court. KAVINTA V. CASTILLO, JR., 249 SCRA 604 (1995)
Requirements for Substitution of Counsel during proceeding Mere submission of a certification of non-forum shopping after the filing
of a motion to dismiss on the ground of such failure does not operate as a
1. written consent of party substantial compliance and does not cure the defect. The case may still
be dismissed.
2. written consent of attorney to be substituted
3. approval of court
INTERNATIONAL CONTAINER TERMINAL V. CA, defense, as the case may be, omitting the statement of mere
249 SCRA 389 (1995) evidentiary facts. (1)
For forum shopping to exist, both actions must involve the same If a defense relied on is based on law, the pertinent provisions
transactions, same essential facts and circumstances. The actions must thereof and their applicability to him shall be clearly and concisely
also raise identical causes of action, subject matter, and issues. There is stated. (n)
forum shopping whenever, as a result of an adverse opinion in one
forum, a party seeks a favorable opinion (other than by appeal or Sec. 2. Alternative causes of action or defenses. A party may set
certiorari) in another. forth two or more statements of a claim or defense alternatively or
hypothetically, either in one cause of action or defense or in separate
causes of action or defenses. When two or more statements are made
ORTIZ V. CA, 299 SCRA (1998) * in the alternative and one of them if made independently would be
Facts: Petition for review from the judgment of the RTC was filed with sufficient, the pleading is not made insufficient by the insufficiency of
the CA. Certificate against forum-shopping was signed by counsel, not by one or more of the alternative statements. (2)
the party.
(Gatchalian v. Pabing).
Held: A petition for review, for certiorari, for mandamus, and even appeal
Sec. 3. Conditions precedent. In any pleading a general
requires a certificate against forum-shopping. It must be the party
averment of the performance or occurrence of all conditions
himself who must certify. If only counsel certifies, the case should be
precedent shall be sufficient. (3)
dismissed, unless there is a statement of a reasonable and sufficient
cause why the party could not sign the certification. Sec. 4. Capacity. Facts showing the capacity of a party to sue or
be sued or the authority of a party to sue or be sued in a
de Leon: A perusal of the rules on appeal reveal that ordinary appeals
representative capacity or the legal existence of an organized
does not require a certificate against forum shopping while petitions for
association of persons that is made a party, must be averred. A party
review, petition for review on certiorari, and special civil action for
desiring to raise an issue as to the legal existence of any party or the
certiorari does require a certificate against forum-shopping.
capacity of any party to sue or be sued in a representative capacity,
shall do so by specific denial, which shall include such supporting
particulars as are peculiarly within the pleader's knowledge. (4)
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Sec. 5. Fraud, mistake, condition of the mind. In all averments of
RULE 8
fraud or mistake, the circumstances constituting fraud or mistake
Section 1. In general. Every pleading shall contain in a must be stated with particularity. Malice, intent, knowledge or other
methodical and logical form, a plain, concise and direct statement of condition of the mind of a person may be averred generally. (5a)
the ultimate facts on which the party pleading relies for his claim or
Manner of making averments of Where an action or defense is based on a document, the substance of
such document be set forth in the pleading and a copy thereof attached
1. Fraud or mistake particular as an exhibit. The opposing party must specifically deny such document
under oath, otherwise, the genuineness and due execution of the
2. malice, intent, knowledge, or other condition of the mind general
instrument shall be deemed admitted.
If allegation of fraud or mistake is not particular, the remedy is to file a
The rule applies only to pleadings, not motions. Hence, an actionable
bill of particulars.
document in a MTD need not be denied under oath.
Sec. 6. Judgment. In pleading a judgment or decision of a
Note that even documents on which a defense is based must be denied
domestic or foreign court, judicial or quasi-judicial tribunal, or of a
under oath. This is an exception to the rule that all new matters in the
board or officer, it is sufficient to aver the judgment or decision
answer are deemed controverted by failure to file a reply. cf Rule 7, Sec.
without setting forth matter showing jurisdiction to render it. (6)
10
Judgment of other tribunals can be averred without alleging its
Sec. 10. Reply. xxx If a party does not file such reply, all the
jurisdiction.
new matters alleged in the answer are deemed controverted.
Sec. 7. Action or defense based on document. Whenever an
under oath is the same as verified, or affidavit. Recall that pleadings
action or defense is based upon a written instrument or document,
need not be verified unless required by law or the rules (Rule 7, Sec. 4)
the substance of such instrument or document shall be set forth in the
pleading, and the original or a copy thereof shall be attached to the Sec. 4. Verification. Except when otherwise specifically
pleading as an exhibit, which shall be deemed to be a part of the required by law or rule, pleadings need not be under oath,
pleading, or said copy may with like effect be set forth in the verified or accompanied by affidavit. (5a)
pleading. (7)
When denial under oath of an actionable document not required
Sec. 8. How to contest such documents. When an action or
defense is founded upon a written instrument, copied in or attached 1. the adverse party is not a party to the instrument
to the corresponding pleading as provided in the preceding section,
the genuineness and due execution of the instrument shall be 2. compliance with an order for an inspection of the original is refused
deemed admitted unless the adverse party, under oath, specifically
The order referred to here is the order issued by the court pursuant to
denies them, and sets forth what he claims to be the facts; but the
Rule 27, Sec. 1
requirement of an oath does not apply when the adverse party does
not appear to be a party to the instrument or when compliance with Section 1. Motion for production or inspection; order. Upon
an order for an inspection of the original instrument is refused. (8a) motion of any party showing good cause therefor, the court in
which an action is pending may (a) order any party to produce
and permit the inspection and copying or photographing, by or 5. denial of plaintiffs allegations
on behalf of the moving party, of any designated documents,
papers, books, accounts, xxx. 6. denial of usurious interest (under oath)
Sec. 9. Official document or act. In pleading an official Sec. 10. Specific denial. A defendant must specify each material
document or official act, it is sufficient to aver that the document was allegation of fact the truth of which he does not admit and, whenever
issued or the act done in compliance with law. (9) practicable, shall set forth the substance of the matters upon which
he relies to support his denial. Where a defendant desires to deny only
Allegations that may be general a part of an averment, he shall specify so much of it as is true and
material and shall deny only the remainder. Where a defendant is
1. ultimate fact, no evidentiary facts without knowledge or information sufficient to form a belief as to the
truth of a material averment made in the complaint, he shall so state,
2. pertinent provisions of law on which a defense relies on
and this shall have the effect of a denial. (10a)
3. conditions precedent
For an allegation that defendant is without knowledge or information
4. capacity or authority to sue and be sued, or legal existence must be sufficient to form a belief as to the truth of a material averment made in
averred the complaint to constitute denial, it must be shown that the defendant
indeed was in no position to know the truth of the averment in the
5. Malice, intent, knowledge or other condition of the mind complaint. But if it can be demonstrated that he in fact was in a position
to know, then the denial is ineffective and the averment is deemed
6. judgment of another court or tribunal, domestic or foreign
admitted.
7. official document or official act
Sec. 11. Allegations not specifically denied deemed admitted.
8. denial of unliquidated damages Material averment in the complaint, other than those as to the
amount of unliquidated damages, shall be deemed admitted when
Allegations that must be specific not specifically denied. Allegations of usury in a complaint to recover
usurious interest are deemed admitted if not denied under oath. (1a,
1. Questions as to legal existence or capacity to sue and be sued R9)
2. circumstances constituting fraud or mistake must be stated with Sec. 12. Striking out of pleading or matter contained therein.
particularity Upon motion made by a party before responding to a pleading or, if
3. substance of an document on which an action or defense is based no responsive pleading is permitted by these Rules, upon motion
made by a party within twenty (20) days after the service of the
4. contest of an actionable document (under oath) pleading upon him, or upon the court's own initiative at any time, the
court may order any pleading to be stricken out or that any sham or BOUGH AND BOUGH V. CANTIVEROS, 40 PHIL 209
false, redundant, immaterial, impertinent, or scandalous matter be (1919)
stricken out therefrom. (5, R9)
Failure of a party to deny under oath the genuineness of an actionable
Matters that may be stricken out from a pleading document does not bar him from proving fraud, mistake, or other
defenses that do not deny the genuineness and due execution of the
1. sham or false instrument.
2. redundant
HIBBERD V. ROHDE, 32 PHIL 476 (1915)
3. immaterial
Failure to deny under oath the genuineness and due execution of an
4. impertinent actionable document bars only evidence to controvert its due execution.
Execution can only refer to the actual making and delivery, but it cannot
5. scandalous
involve other matters without enlarging its meaning beyond reason. The
CASES party whose signature it bears admits that he signed it or that it was
signed by another for him with his authority; that at the time it was
The rule requiring denial under oath does not apply where the litigant signed it was in words and figures exactly as set out in the pleading of the
signed the instrument merely as a witness, not as a party (Donato v. CA, party relying upon it; that the document was delivered and that any
217 SCRA 196 [1993]). formal requisites required by law, such as a seal, an acknowledgment, or
revenue stamp, which it lacks, are waived by him (memorize!). It does not
bar evidence of other defenses like want or illegal consideration.
TORIBIO V. BIDIN, 134 SCRA 162 (1985)
The requirement of denial under oath applies also to defenses based on a Defenses that are barred by failure to deny under oath a document upon
document attached to an answer. The offeror need not be a party to the which an action or defense is based
instrument in order to require a denial under oath, as long as the adverse 1. signature is a forgery
party is a party to the instrument. Allegation in a previous sworn pleading
negating the possibility of execution of the instrument subsequently 2. the signature was by an unauthorized agent or partner
offered by the oppenent is sufficient denial under oath of such
instrument. 3. the corporation was not authorized under its charter to sign the
instrument
Escolin: Objection to evidence barred by the rule requiring denial under
oath must be upon calling the witness, even before the question is put 4. the party charged signed the instrument in some other capacity than
forth. that alleged in the pleading setting it out
5. the instrument was never delivered document as having been raised in the pleadings (i.e. as if there had been
a specific denial under oath).
JABALDE V. PNB, 7 SCRA 791 (1963)

CENTRAL SURETY V. CN HODGES, 38 SCRA 159
Presentation of evidence as to facts admitted by the failure to deny
(1971)
under oath, and failure to object when the opposing party offers
evidence to controvert what he has already deemed to have admitted, Failure of the plaintiff to object to evidence constitutes a waiver of
amounts to a waiver of the admission. admission from failure to deny under oath.
Escolin: Counsel for Jabalde should have objected on the ground that the
fact that the evidence sought to prove had already been admitted. CAPITOL MOTORS V. YABUT, 32 SCRA 1 (1970) *
de Leon: If counsel did object, I submit that the offerors mere The rule that deems as a denial an allegation of lack of knowledge
presentation of supporting evidence was enough waiver of the technical sufficient to form a belief as to the truth of an allegation of the adverse
admission. cf Rule 10, Sec. 5 party does not apply where the fact as to which the lack of knowledge is
asserted is plainly within the defendants knowledge and his averment of
Sec. 5. Amendment to conform to or authorize presentation of ignorance must be palpably untrue (e.g. whether or not he executed a
evidence. When issues not raised by the pleadings are tried PN). The allegation of lack of knowledge must be in good faith and in
with the express or implied consent of the parties, they shall be sincerity. Mere allegation of ignorance is insufficient to raise an issue.
treated in all respects as if they had been raised in the pleadings. Defendant must aver positively how it is that the is ignorant of the facts
Such amendment of the pleadings as may be necessary to cause so alleged.
them to conform to the evidence and to raise these issues may
be made upon motion of any party at any time, even after de Leon: This in effect ruled that in order to effectively deny an
judgment; but failure to amend does not affect the result of the actionable document, there must be a specific denial, and not just an
trial of these issues. If evidence is objected to at the trial on the allegation of lack of knowledge. Lack of knowledge as a denial is
ground that it is not within the issues made by the pleadings, the ineffective against actionable documents because the adverse party is
court may allow the pleadings to be amended and shall do so always a party to the instrument being offered. Being a party to the
with liberality if the presentation of the merits of the action and instrument, it is always plainly within his knowledge whether the
the ends of substantial justice will be subserved thereby. The instrument offered is authentic or duly executed. Hence, to deny an
court may grant a continuance to enable the amendment to be actionable document, the denial must always be specific, and not just a
made. (5a) mere allegation of lack of knowledge.
Presentation of evidence by the offeror of the actionable document

treats the issue of authenticity and due execution of the actionable EFFECT OF FAILURE TO PLEAD
RULE 9 such failure, declare the defending party in default. Thereupon, the
court shall proceed to render judgment granting the claimant such
Rule 16 enumerate the grounds for MTD. Such grounds may not be
relief as his pleading may warrant, unless the court in its discretion
raised in a MTD may be raised in the answer as an affirmative defense.
requires the claimant to submit evidence. Such reception of evidence
Section 1. Defenses and objections not pleaded. Defenses and may be delegated to the clerk of court. (1a, R18)
objections not pleaded either in a motion to dismiss or in the answer
(a) Effect of order of default. A party in default shall be entitled
are deemed waived. However, when it appears from the pleadings or
to notice of subsequent proceedings but not to take part in the trial.
the evidence on record that the court has no jurisdiction over the
(2a, R18)
subject matter, that there is another action pending between the
same parties for the same cause, or that the action is barred by a prior A party in default is still entitled to notice of subsequent proceedings.
judgment or by statute of limitations, the court shall dismiss the
claim. (2a) (b) Relief from order of default. A party declared in default may
at any time after notice thereof and before judgment file a motion
Defenses appearing on the complaint which are not waived by failure to under oath to set aside the order of default upon proper showing that
plead, on which the court may dismiss the claim his failure to answer was due to fraud, accident, mistake or excusable
negligence and that he has a meritorious defense. In such case, the
1. lack of jurisdiction over the subject matter
order of default may be set aside on such terms and conditions as the
2. another action pending between the same parties for the same cause judge may impose in the interest of justice. (3a, R18)
(lis pendentia)
(c) Effect of partial default. When a pleading asserting a claim
3. action is barred by a prior judgment (res adjudicata) states a common cause of action against several defending parties,
some of whom answer and the others fail to do so, the court shall try
4. Statute of limitations the case against all upon the answers thus filed and render judgment
upon the evidence presented. (4a, R18)
Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred.
A compulsory counterclaim, or a cross-claim, not set up shall be (d) Extent of relief to be awarded. A judgment rendered against
barred. (4a) a party in default shall not exceed the amount or be different in kind
from that prayed for nor award unliquidated damages. (5a, R18)
There are no exceptions to waiver of compulsory counterclaims, and
cross-claims. (e) Where no defaults allowed. If the defending party in an
action for annulment or declaration of nullity of marriage or for legal
Sec. 3. Default; declaration of. If the defending party fails to separation fails to answer, the court shall order the prosecuting
answer within the time allowed therefor, the court shall, upon motion attorney to investigate whether or not a collusion between the
of the claiming party with notice to the defending party, and proof of parties exists, and if there is no collusion, to intervene for the State in
order to see to it that the evidence submitted is not fabricated. (6a, prosecute his counterclaim in the same or in a separate action.
Rl8) This dismissal shall have the effect of an adjudication upon the
merits, unless otherwise declared by the court. (3a)
Procedure for declaring a defending party in default
Effects of default
1. failure to answer within the time allowed
1. defaulting party still entitled to notice of subsequent proceedings,
2. motion of the claiming party but not to take part in the trial
3. notice to the defending party 2. defaulting party may move to set aside the order of default, provided
4. court declares the defending party in default a. filed at any time after notice of default and before judgment
5. Court either b. motion must be under oath
a. requires the claimant to submit evidence (may be delegated to c. proper showing that
the clerk of court), or
1) his failure to answer was due to fraud, accident,
b. renders judgment granting the claimant such relief as his mistake or excusable negligence (FAME), and
pleading may warrant, which shall not
2) he has a meritorious defense
1) exceed the amount prayed for or
3. When some of several defending parties answer and the others fail to
2) be different in kind from that prayed for nor do so, the court shall try the case against all upon the answers thus
filed and render judgment upon the evidence presented.
3) award unliquidated damages
Escolin: after judgment on default is rendered, the remedy is Rule 37
The court has no authority to motu proprio declare a defendant in
(New Trial or Reconsideration), then appeal. But if the judgment has
default. If the plaintiff does not move to declare the defendant in default,
become final and executory, the remedy is Rule 38 (Relief from
the court may motu proprio dismiss with prejudice the action on the
Judgments, Orders, or Other Proceedings).
ground of failure to prosecute under Rule 17 Sec. 3
de Leon: If Rule 38 is no longer available, then use Rule 47 (Annulment of
Sec. 3. Dismissal due to fault of plaintiff. If, for no justifiable
Judgments or Final Orders and Resolutions)
cause, the plaintiff fails xxx to prosecute his action for an
unreasonable length of time, xxx the complaint may be Actions where no defaults allowed
dismissed upon motion of the defendant or upon the court's own
motion, without prejudice to the right of the defendant to 1. annulment
2. declaration of nullity prescription. Plaintiff appeal on the ground that prescription as a ground
to dismiss was waived by failure to file an answer.
3. legal separation
Held: The dismissal was proper.
CASES
GARCIA V. MATHIS, 100 SCRA 251 (1980)

FERRER V. ERICTA, 84 SCRA 705 (1978)
Facts: Colonel Mathis dismissed Garcia from his employment at the Clark
Facts: Dennis Pfleider, then 16 years old, drove a pick-up of his parents.
Air Force Base on the ground of bribery and collusion on 23 August 1956.
He met an accident which resulted in injuries to Annette Ferrer in 31
Garcia sues on 18 November 1977, or after a lapse of more than 21 years
December 1970. Ferrer parents sued in 6 January 1975. Actions for
Defendant enters a special appearance and files an MTD on the ground
damages arising from physical injuries because of a tort must be filed
that no jurisdiction was acquired over his person because he was sued as
within 4 years. Defendants answer did not raise the defense of
a representative of a foreign sovereign not consenting to be sued. TC
prescription. They did not appear at the pre-trial and was declared in
dismissed on the ground of prescription though this was not raised by the
default.
defendant.
Held: Defense of prescription, even if not raised in a motion to dismiss or
Held: The general rule is an action can not be held as prescribed if this
in the answer, is not waived unless such defense raises issues of fact not
was not raised in a motion to dismiss. An exception is when plaintiffs
appearing upon the preceding pleading. The general rule that the
own allegations in his complaint show that the action has prescribed. A
defense of prescription can only be considered if invoked in the answer
MTD on this ground is not necessary. Furthermore, because of the
does not obtain when the evidence shows that the cause of action upon
special appearance which the defendant had entered, he was
which plaintiffs complaint is based is already barred by the statute of
constrained to confine himself to showing that the trial court did not
limitations. Moreso if the plaintiffs own allegation in the complaint or
have jurisdiction over his person and had to exclude all other non-
the evidence it presented shows clearly that the action had prescribed.
jurisdictional grounds in his MTD, otherwise he would have been deemed
to have abandoned his special appearance and voluntarily submitted
(PACSON V. LORENZO) * himself to the jurisdiction of the court.
Facts: Plaintiff sues for reconveyance of land. Defendant filed MTD on de Leon: cf Rule 14, Sec. 20.
the ground of prescription. Court denies the MTD on the ground that
prescription was not indubitable. Defendant does not file an answer and Sec. 20. Voluntary appearance. The defendant's voluntary
was declared in default. Plaintiffs evidence shows that the action had appearance in the action shall be equivalent to service of
already prescribed. Plaintiffs action was dismissed on the ground of summons. The inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the defendant
shall not be deemed a voluntary appearance. (23a)
This is a reiteration of La Naval case. Assertion by the defendant of an dismiss the complaint on the ground that defendant has a bigger credit.
affirmative relief in the MTD or filing of an answer is a voluntary However, any counterclaim set-up in excess of the courts jurisdiction is
appearance before the court. waived. Failure of the defendant to set-up such claim does not bar him
from filing a separate civil action on the same claim before the RTC.
GABUYA V. LAYUG, 250 SCRA 218 (1995)

CAVILI V. FLORENDO, 154 SCRA 610 (1987)
Facts: Gabuya sold land to Layug. Layug defaulted on the final
installment. Gabuya sues Layug for annulment of contract with damages FACTS Private respondents Clarita, Ulpiano, Estrella, & Placida (all
in Lanao Del Norte CFI (now RTC). Gabuya obtains a final and executory surnamed Cavili) filed a civil case against herein petitioners Perfecta,
judgment in his favor. Thereafter, Layug files a complaint for Primitivo, and Quirino (all surnamed Cavili) with the NegOcc CFI for
reimbursement of the value of the improvements buildings and materials Partition, Accounting, and Damages. Petitioners failed to file their
introduced on the lands. MTD by Gabuya was denied. Answer within the requested period. Upon motion of the private
respondents, the petitioners were declared in default.
Held: The claim for reimbursement should have been raised as a
counterclaim in the previous case. Failure to do so precludes the re- Counsel for petitioner received a copy of the decision and filed a motion
litigation of the same facts in a separate complaint. The claim for such for new trial on the grounds of lack of jurisdiction over Primitivo and
improvements and indemnity is necessarily connected with the suit for Quirino who had not been legally served with summons. Motion for new
the restitution or recovery of land. trial was granted in an Order in 23April.
cf Rule 9 Sec. 2 Private respondents filed MfR of the order granting new trial and prayed
that a writ of execution be issued but only in so far as Perfecta is
Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. concerned.
A compulsory counterclaim, or a cross-claim, not set up shall
be barred. (4a) On 21July CFI set aside the order granting new trial and directed the
execution. Petitioners MfR which was denied. Thus petitioner brought
the case to the SC. SC granted petition, setting aside the 21July Order
CALO V. AJAX, 22 SCRA 996 (1968) and reviving the 23April Order.
Thereafter, the pre-trial and trial was scheduled before RTC. Petitioners
compulsory and are not waived by the failure to set up before the MTC.
presented Perfecta as their first witness. The respondents moved for her
The rules allow such counterclaims to be set-up only for the defendant to
disqualification as a witness on the ground that having been declared in
prevent plaintiff from recovering from him. This means that should the
default, Perfecta has lost her standing in court and she cannot be allowed
court find both plaintiff's complaint and defendant's counterclaim (for an
to participate in all proceedings therein, even as witness. Respondent
amount exceeding said court's jurisdiction) meritorious, it will simply
judge Florendo sustained the respondents contention and disqualified requires a showing of meritorious defense and FAME. A meritorious
Perfecta from testifying. Petitioners filed MfR which was denied. defense must concur with the satisfactory reason for the non-appearance
of the defaulted party.
HELD Parties in default are not disqualified from testifying in favor of
non-defaulting co-defendants.
AMENDED AND SUPPLEMENTAL PLEADINGS
PACETE V. CARRIAGA, 231 SCRA 321 (1994) RULE 10

FACTS Concepcion Alanis filed with Cotabato CFI a complaint for the Section 1. Amendments in general. Pleadings may be amended
declaration of nullity of the marriage between her husband Enrico. by adding or striking out an allegation or the name of any party, or by
correcting a mistake in the name of a party or a mistaken or
HELD There can be no defaults in actions for annulment of marriage or
inadequate allegation or description in any other respect, so that the
for legal separation. The court should instead order the prosecutor to
actual merits of the controversy may speedily be determined, without
investigate whether or not collusion between the parties exists, and to
regard to technicalities, and in the most expeditious and inexpensive
intervene for the State to see to it that the evidence submitted is not
manner. (1)
fabricated.
How pleadings may be amended
Escolin: Actions for nulliy or annulment of marriage, and legal separation
need not pass thru the Katarunggang Pambaranggay because the law 1. by adding or striking out
does not authorize settlement of such cases.
a. an allegation or
RAMNANI V. CA, 221 SCRA (1993) b. name of any party
The remedies available to a defendant who has been declared in default 2. by correcting
are: a) before judgment file a motion, under oath, to set aside the order
of default on the ground that his failure to answer was due to FAME, and a. a mistake in the name of a party
that he has a meritorious defense; b) after judgment, but before it has
b. a mistaken or inadequate allegation or description in any other
become final and executory file a motion for new trial; c) after
respect
judgment has become final and executory file a petition for relief
(60days to file petition for relief); d) He may also appeal (certiorari Sec. 7. Filing of amended pleadings. When any pleading is
60days to file) from the judgment rendered against him as contrary to amended, a new copy of the entire pleading, incorporating the
the evidence or to the law, even if no petition to set aside the order of amendments, which shall be indicated by appropriate marks, shall be
default has been presented by him. A motion to lift order of default filed. (7a)
Sec. 2. Amendments as a matter of right. A party may amend his Formal amendments may be summarily corrected at any stage (even
pleading once as a matter of right at any time before a responsive on appeal), motu propio or on motion, provided no prejudice is caused
pleading is served or, in the case of a reply, at any time within ten (10) thereby to the adverse party
days after it is served. (2a)
1. defect in the designation of the parties
Sec. 3. Amendments by leave of court. Except as provided in the
next preceding section, substantial amendments may be made only 2. other clearly clerical or typographical errors
upon leave of court. But such leave may be refused if it appears to the
court that the motion was made with intent to delay. Orders of the
CUYUGAN V. DIZON, 79 PHIL 80 (1947)
court upon the matters provided in this section shall be made upon
motion filed in court, and after notice to the adverse party, and an Facts: Cuyugan enters into a lease with Dizon. Dizon defaulted on his
opportunity to be heard. (3a) rentals, hence Cuyugan sued in Pampanga CFI. Cuyugan was married,
but her husband did not join her as plaintiff. SC rules in favor of Cuyugan.
When amendments a matter of right (only once)
Held: The fact that plaintiffs husband was not joined as plaintiff does not
1. before a responsive pleading is served, or merit dismissal nor remand of the case. The complaint may be amended
to cure the defect even after a final decision has been rendered.
2. in the case of a reply, within 10 days after it is served
Furthermore, there is no indication that plaintiffs husband is hostile to
Procedure for substantial amendments by leave of court his wifes demand, or claims any interest adverse to hers, or that
defendant has any evidence to present with reference to the husband.
1. motion filed in court Plaintiff has 10 days from notice to file an amended complaint making
her husband party plaintiff. After the amended complaint is filed, let
2. notice to the adverse party
judgment be entered.
3. opportunity to be heard
cf Rule 3 Sec. 4
4. leave may be refused if it appears to the court that the motion was
Sec. 4. Spouses as parties. Husband and wife shall sue or be
made with intent to delay
sued jointly, except as provided by law. (4a)
Sec. 4. Formal amendments. A defect in the designation of the
Sec. 5. Amendment to conform to or authorize presentation of
parties and other clearly clerical or typographical errors may be
evidence. When issues not raised by the pleadings are tried with the
summarily corrected by the court at any stage of the action, at its
express or implied consent of the parties, they shall be treated in all
initiative or on motion, provided no prejudice is caused thereby to the
respects as if they had been raised in the pleadings. Such amendment
adverse party. (4a)
of the pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any Sec. 8. Effect of amended pleadings. An amended pleading
party at any time, even after judgment; but failure to amend does not supersedes the pleading that it amends. However, admissions in
affect the result of the trial of these issues. If evidence is objected to superseded pleadings may be received in evidence against the
at the trial on the ground that it is not within the issues made by the pleader; and claims or defenses alleged therein not incorporated in
pleadings, the court may allow the pleadings to be amended and shall the amended pleading shall be deemed waived. (n)
do so with liberality if the presentation of the merits of the action and
the ends of substantial justice will be subserved thereby. The court For admissions in superseded pleadings to be received in evidence
may grant a continuance to enable the amendment to be made. (5a) against the pleader, the adverse party must offer the superseded
pleading as evidence.
When issues not raised by the pleadings are tried with the express or
implied consent of the parties Sec. 6. Supplemental pleadings. Upon motion of a party the
court may, upon reasonable notice and upon such terms as are just,
1. treated as if raised in the pleadings permit him to serve a supplemental pleading setting forth
transactions, occurrences or events which have happened since the
2. pleadings may be amended to conform to the evidence and to raise date of the pleading sought to be supplemented. The adverse party
these issues, upon motion at any time, even after judgment may plead thereto within ten (10) days from notice of the order
admitting the supplemental pleading. (6a)
3. failure to amend does not affect the result of the trial of these issues.
Procedure for supplemental pleadings (refers to transactions,
If evidence is objected to at the trial on the ground that it is not within
occurrences or events which have happened since the date of the
the issues made by the pleadings
pleading sought to be supplemented)
1. the court may allow the pleadings to be amended and shall do so
1. motion of a party
with liberality if it will subserve
2. reasonable notice to the other party
a. the presentation of the merits of the action and
3. upon such terms as are just, the court permits the party to serve a
b. the ends of substantial justice
supplemental pleading
2. The court may grant a continuance to enable the amendment to be
4. adverse party may plead thereto within 10 days from notice of the
made
order admitting the supplemental pleading
Sec. 6. Supplemental pleadings. xxx (moved to after Sec. 8)
Amended pleading Supplemental pleading
Sec. 7. Filing of amended pleadings. xxx (moved to after Sec. 1)
1. as to fact, events occurring before or at time of filing 1. event occurs after filing
of original pleading introduced. Gulang filed a similar motion introducing the same
defenses. Both motions were denied. MfR was also denied.
2. supersedes original 2. just additional to original pleading
CFI ruled that Gulang encroached on Nadayags land. Gulang appealed
3. may be filed as a matter of right in some instances 3. always with leave oftocourt
the IAC. IAC held that CFI correctly denied the motion to amend the
answer considering that it was filed after the case had been set for
CASES
hearing and that it substantially altered his defense by adding grounds of
prescription, estoppel, laches and fraud.
GULANG V. NADAYAG, 214 SCRA 355 (1992)
HELD Though substantial amendments may be made even after the case
FACTS Nadayag filed with Iligan CFI a complaint against Gulang. The has been set for hearing provided prior leave of court is obtained, such
Nadayags are co-owners of a parcel of land located in the port area. leave may be refused if the motion requesting for the same would delay
Gulang is also an owner of a parcel of land located in the port area. the action or the cause of action or defenses would be substantially
Before Gulang acquired the lot, she rented a portion of the same from altered by the proposed amendment (e.g. raises issues of want of cause
Lasmarias. Lasmarias purchased from Nadayags predecessor-in-interest of action, prescription, estoppel, laches and fraud)
a parcel of land adjacent to the lot of the Nadayags. Nadayags
complained against Gulangs occupancy in their lot, the rentals of which
Gulang paid to Lasmarias instead of Nadayag. Nadayags pray that WHEN TO FILE RESPONSIVE PLEADINGS
Gulang be ordered to vacate and restore possession and/or ownership to
them and that defendants be ordered to pay back rentals, moral and RULE 11
exemplary damages, and attys fees. Section 1. Answer to the complaint. The defendant shall file his
answer to the complaint within fifteen (15) days after service of
In their answer, defendants deny the claim of plaintiffs and by way of
summons, unless a different period is fixed by the court. (la)
affirmative and special defenses alleged that the defendants are the true,
legal and lawful owner and in actual possession and occupation of the Sec. 2. Answer of a defendant foreign private juridical entity.
land in question. Where the defendant is a foreign private juridical entity and service of
summons is made on the government official designated by law to
A survey by the Bureau of Lands was conducted and in conclusion stated
receive the same, the answer shall be filed within thirty (30) days after
that Gulang is occupying a portion of Nadayags land. But defendants
receipt of summons by such entity. (2a)
counsel made an open court manifestation that his clients will not abide
with the survey results. cf Rule 14, Sec. 12
Lasmarias filed a motion to admit his amended answer in which defenses Sec. 12. Service upon foreign private juridical entity. When the
of want of cause of action, prescription, estoppel, laches and fraud were defendant is a foreign private juridical entity which has
transacted business in the Philippines, service may be made on Sec. 5. Answer to third (fourth, etc.)- party complaint. The time
its resident agent designated in accordance with law for that to answer a third (fourth, etc.)- party complaint shall be governed by
purpose, or, if there be no such agent, on the government official the same rule as the answer to the complaint. (5a)
designated by law to that effect, or on any of its officers or
agents within the Philippines. (14a) Sec. 6. Reply. A reply may be filed within ten (10) days from
service of the pleading responded to. (6)
Escolin: If the corporation is not doing business in the Philippines, the
period to answer is 30 days from receipt of summons by such foreign Sec. 7. Answer to supplemental complaint. A supplemental
entity. If the corporation is doing business in the Philippines, the period complaint may be answered within ten (10) days from notice of the
to answer is 15 days from receipt of summons by its resident agent. order admitting the same, unless a different period is fixed by the
court. The answer to the complaint shall serve as the answer to the
Sec. 3. Answer to amended complaint. Where the plaintiff files supplemental complaint if no new or supplemental answer is filed. (n)
an amended complaint as a matter of right, the defendant shall
answer the same within fifteen (15) days after being served with a When response to the following pleadings must be filed
copy thereof.
1. main complaint, third or fourth party complaint within 15 days after
Where its filing is not a matter of right, the defendant shall service of summons, unless a different period is fixed by the court
answer the amended complaint within ten (10) days from notice of
2. if defendant is a foreign private juridical entity and service of
the order admitting the same. An answer earlier filed may serve as the
summons is made on the government official so designated by law
answer to the amended complaint if no new answer is filed.
within 30 days after receipt of summons by the foreign entity
This Rule shall apply to the answer to an amended counterclaim,
3. amended claims
amended cross-claim, amended third (fourth, etc.)-party complaint,
and amended complaint-in-intervention. (3a) a. 15 days from service of amended complaint, if amended as a
matter of right
Period to answer when the complaint is amended
b. 10 days from notice of admission of amended complaint, if
1. as a matter of right within 15 days
amended with leave of court (An answer earlier filed may serve
2. not as a matter of right within 10 days as the answer to the amended complaint if no new answer is
filed)
Sec. 4. Answer to counterclaim or cross-claim. A counterclaim or
cross-claim must be answered within ten (10) days from service. (4) 4. answer, counterclaim or cross-claim within 10 days from service
5. supplemental complaint within 10 days from notice of the

admitting court order, unless a different period is fixed by the court
(answer to the complaint shall serve as the answer to the Sec. 11. Extension of time to plead. Upon motion and on such
supplemental complaint if no new or supplemental answer is filed) terms as may be just, the court may extend the time to plead
provided in these Rules.
Escolin: The period to answer to the counterclaim or cross-claim is
shorter because the defendant is already familiar with the case, unlike in The court may also, upon like terms, allow an answer or other
an original complaint, the defendant is not yet familiar with the claim. pleading to be filed after the time fixed by these Rules. (7)
Sec. 8. Existing counterclaim or cross-claim. A compulsory CASES

counterclaim or a cross-claim that a defending party has at the time
he files his answer shall be contained therein. (8a, R6)
GOJO V. GOYALA, 35 SCRA 557 (1970)
Sec. 9. Counterclaim or cross-claim arising after answer. xxx FACTS Segundo Goyala together with his wife Antonina sold to Faustino
(moved to after Sec. 10) Gojo by a Deed of Pacto de Retro Sale a parcel of agri land, repurchase
Sec. 10. Omitted counterclaim or cross-claim. When a pleader to be made within one year. About 10yrs after execution of said
fails to set up a counterclaim or a cross-claim through oversight, document, Gojo filed with the Sorsogon CFI a petition for consolidation
inadvertence, or excusable neglect, or when justice requires, he may, of ownership of the land.
by leave of court, set up the counterclaim or cross-claim by Goyala filed an opposition to the petition alleging that it was a mere
amendment before judgment. (3a, R9) mortgage and not a Pacto de Retro sale as evidenced by a deed of
Grounds to admit an omitted counterclaim or cross-claim by mortgage executed by the Goyalas. Goyala also alleged that he and
amendment(before judgment) Antonina went to Gojos house and tendered to him the payment of the
debt, but Gojo refused to receive the same and to cancel the document
1. oversight of mortgage. Goyala also prayed that Gojo be ordered to pay Php1800
per annun (less the legl annual interest of the loan) as the reasonable
2. inadvertence monetary value of the products of the said land.
3. excusable neglect Goyalas counsel filed a manifestation informing the trial court the
Antonina was already dead. Hearing was had on that manifestation and
4. justice requires
the trial court ordered Gojos counsel to submit an amemded complaint
Sec. 9. Counterclaim or cross-claim arising after answer. A substituting Antonina with her successors-in-interest.
counterclaim or a cross-claim which either matured or was acquired
Goyala filed MtD the complaint on the ground of failure to submit
by a party after serving his pleading may, with the permission of the
amended complaint. TC dismissed complaint without prejudice.
court, be presented as a counterclaim or a cross-claim by
supplemental pleading before judgment. (9, R6)
Thereafter, Goyala filed a motion to declare Gojo in default for failure to Petitioners MfR but was denied. Petitioners filed a petitioner for relief
answer the counterclaim. TC declared Gojo in default. from judgment which was granted only to be denied by the CFI on MfR
by Bernardo.
Gojo appeals to CA. CA certified the appeal to SC upon finding that the
appeal involves purely questions of law. Petitioner filed their notice of appeal. Petitioners sought an extension of
time to file their appeal bond and their record on appeal but was denied
HELD A plaintiff who fails or chooses not to answer a compulsory for lack of merit.
counterclaim may not be declared in default, principally because the
issues raised in the counterclaim are deemed automatically joined by the The court ordered the issuance of the writ of execution but said writ was
allegations of the complaint. ordered stayed pending trial on the merits on petitioners complaint.
On motion of Bernardo, said order was set aside and the issuance of a
BALLECER V. BERNARDO, 18 SCRA 291 (1966) writ of execution was ordered. Petitioner MfR but was denied. Clerk of
Court issued an alias writ of execution and Sheriff of Manila caused to be
FACTS Petitioner spouses Jose Agawin and Felicisima Ballecer instituted
published a notice of sale at public auction of petitioners property.
a civil case against Jose Bernardo to recover damages allegedly caused
by him in consequence of the destruction and demolition of a portion of a ISSUE WON CFI erred in declaring petitioners in default.
wall of petitioners along the common boundary line of their lot and that
of Bernardo, as well as recovery of possession of a portion of petitioners HELD YES. Where the allegations in the counterclaim (not necessarily
lot which was allegedly encroached upon by the wall subsequently compulsory) have already been controverted by the original complaint,
erected by Bernardo. failure of the the defendant in the counterclaim to file an answer to the
counterclaim is not sufficient to declare him in default.
Bernardo filed his answer denying petitioners averments, and alleging
that the demolition made by him took place within the boundary of his
own property. By way of counterclaim, Bernardo claimed that CALO V. AJAX, 22 SCRA 996 (1968)
petitioners were the ones who encroached and that petitioners
complaint is premature, uncalled for, capricious and without any
compulsory and are not waived by the failure to set up before the MTC.
justifiable cause, for which Bernardo prayed that petitioners be
The rules allow such counterclaims to be set-up only for the defendant to
sentenced to vacate his portion of land and to pay damages.
prevent plaintiff from recovering from him. This means that should the
On the last day of the reglementary period to answer counterclaim, court find both plaintiff's complaint and defendant's counterclaim (for an
petitioners filed an ex-parte urgent motion for extension of time, but the amount exceeding said court's jurisdiction) meritorious, it will simply
motion was denied and stricken off the record. Petitioners were declared dismiss the complaint on the ground that defendant has a bigger credit.
in default as to counterclaim. Bernardo presented his evidence the However, any counterclaim set-up in excess of the courts jurisdiction is
Manila CFI ruled in favor of him.
waived. Failure of the defendant to set-up such claim does not bar him RULE 12
from filing a separate civil action on the same claim before the RTC.
Section 1. When applied for; purpose. Before responding to a
pleading, a party may move for a definite statement or for a bill of
AGUSTIN V. BACALAN, 135 SCRA 340 (1985) particulars of any matter which is not averred with sufficient
Facts: Administrator of estate-lessor files a case for ejectment before the definiteness or particularity to enable him properly to prepare his
City Courts against the lessee. Lessee files counterclaim in excess of the responsive pleading. If the pleading is a reply, the motion must be
City Courts jurisdiction. City Court decides for plaintiff. On appeal, CFI filed within ten (10) days from service thereof. Such motion shall point
rules for defendant and grants him damages. This became final. Plaintiff out the defects complained of, the paragraphs wherein they are
files separate action for nullifying the CFI decision on the ground that the contained, and the details desired. (1a)
damages awarded was beyond the jurisdiction of the City Court. Bill of particulars definite statement of any matter which is not averred
Held: A counterclaim not presented in the lower court can not be with sufficient definiteness or particularity to enable the adverse party
entertained on appeal. Defendant is deemed to have waived his properly to prepare his responsive pleading.
counterclaim in excess of the City Courts jurisdiction. It is as though it Sec. 2. Action by the court. Upon the filing of the motion, the
has never been brought before City Court. It may not be entertained on clerk of court must immediately bring it to the attention of the court
appeal. The amount of judgment, therefore, obtained by the defendant- which may either deny or grant it outright, or allow the parties the
appellee on appeal, cannot exceed the jurisdiction of the court in which opportunity to be heard. (n)
the action began. Since the trial court did not acquire jurisdiction over
the defendant's counterclaim in excess of the jurisdictional amount, the Sec. 3. Compliance with order. If the motion is granted, either in
appellate court, likewise, acquired no jurisdiction over the same by its whole or in part, the compliance therewith must be effected within
decisions or otherwise. When court transcends the limits prescribed for it ten (10) days from notice of the order, unless a different period is
by law and assumes to act where it has no jurisdiction, its adjudications fixed by the court. The bill of particulars or a more definite statement
will be utterly void and of no effect either as an estoppel or otherwise. ordered by the court may be filed either in a separate or in an
The excess award of the CFI is therefore null and void. Action to declare amended pleading, serving a copy thereof on the adverse party. (n)
nullity of award is proper. The award not in excess stands.
Sec. 4. Effect of non-compliance. If the order is not obeyed, or in
Escolin: A compulsory counterclaim beyond the jurisdiction of the court case of insufficient compliance therewith, the court may order the
can be filed as a separate action. If filed in the same action, the excess is striking out of the pleading or the portions thereof to which the order
deemed waived. was directed or make such other order as it deems just. (1[c]a)
Sec. 5. Stay of period to file responsive pleading. After service of

BILL OF PARTICULARS the bill of particulars or of a more definite pleading, or after notice of
denial of his motion, the moving party may file his responsive time of filing his motion, which shall not be less than 5 days in any
pleading within the period to which he was entitled at the time of event.
filing his motion, which shall not be less than five (5) days in any
event. (1[b]a) 7. If the order is not obeyed, or in case of insufficient compliance, the
court may order the striking out of the pleading or the portions
Sec. 6. Bill a part of pleading. A bill of particulars becomes part thereof to which the order was directed or make such other order as
of the pleading for which it is intended. (1[a]a) it deems just.
A Bill of Particulars is not a pleading because it prays for relief not 8. A bill of particulars becomes part of the pleading for which it is
included in the judgment. intended.
Procedure in bill of particulars

CASES
1. application by an adverse party before responding to a pleading, or
within 10 days from service of the reply
2. clerk of court brings it to the attention of the court SALITA V. MAGTOLIS, 233 SCRA 100 (1994)
Facts: Espinosa sues his wife Salita for declaration of nullity on ground of
3. (no hearing necessary) the court either
psychological incapacity. Salita moves for bill of particulars. Granted.
a. deny it outright Espinosa complies by specifying that
b. grant it outright . . . at the time of their marriage, respondent (Joselita Salita) was
psychologically incapacitated to comply with the essential
c. allow the parties the opportunity to be heard marital obligations of their marriage in that she was unable to
understand and accept the demands made by his profession
4. If the motion is granted, the compliance therewith must be effected that of a newly qualified Doctor of Medicine upon petitioner's
within 10 days from notice of the order, unless a different period is time and efforts so that she frequently complained of his lack of
fixed by the court. attention to her even to her mother, whose intervention caused
petitioner to lose his job.
5. The bill of particulars may be filed either in a separate or in an
amended pleading, serving a copy thereof on the adverse party Salita was not content, but TC upholds its sufficiency and directed
Joselita to file her responsive pleading.
6. After service of the bill of particulars or of a more definite pleading,
or after notice of denial of his motion, the moving party may file his Held: A complaint only needs to state the ultimate facts constituting the
responsive pleading within the period to which he was entitled at the plaintiff's cause or causes of action. Ultimate facts has been defined as
those facts which the expected evidence will support. The term does not period to file an answer remained suspended until the motion for a bill of
refer to the details of probative matter or particulars of evidence by particulars is denied or, it is granted, until the bill is served on the moving
which these material elements are to be established. It refers to the facts party. No action having been taken on the motion for bill of particulars
which the evidence on the trial will prove, and not the evidence which will until the present, the period to answer has not yet expired. The TC,
be required to prove the existence of those facts. A motion for bill of therefore, erred in declaring Mercado in default.
particulars will not be granted if the complaint, while not very definite,
nonetheless already states a sufficient cause of action. A motion for bill
of particulars may not call for matters which should form part of the SANTOS V. LIWAG, 101 SCRA 327 (1980)
proof of the complaint upon trial. Such information may be obtained by Facts: Santos files a complaint against Liwag seeking the annulment of
other means. The Bill of Particulars filed by private respondent is certain documents as having been executed by means of
sufficient to state a cause of action, and to require more details from misrepresentations, machination, false pretenses, threats, and other
private respondent would be to ask for information on evidentiary fraudulent means, as well as for damages. Liwag moved for a bill of
matters. On the basis of the aforequoted allegations, it is evident that particulars. BoP was granted. Santos fails to comply, hence his complaint
petitioner can already prepare her responsive pleading or for trial. was dismissed.
Held: We find no merit in the appeal. The complaint is without doubt

AGCANAS V. MERCADO, 7 SCRA 688 (1963) imperfectly drawn and suffers from vagueness and generalization to
Facts: Agcanas sues Mercado for recovery of parcels of land and enable the defendant property to prepare a responsive pleading and to
damages. Mercado moves for a bill of particulars. Pending the motion, he clarify issues and aid the court in an orderly and expeditious disposition
also moves to dismiss with a prayer that consideration of the motion for of the case. The present action is one for the annulment of documents
a bill of particulars be held in abeyance pending resolution of the MTD. which have been allegedly executed by reason of deceit, machination,
TC denied MTD and ordered Mercado to answer the complaint. Mercado false pretenses, misrepresentation, threats, and other fraudulent means.
did not, hence was declared in default. Mercados attempts to set aside Deceit, machination, false pretenses, misrepresentation, and threats,
the order of default were futile. however, are largely conclusions of law and mere allegations thereof
without a statement of the facts to which such terms have reference are
Held: Both a motion to dismiss and a motion for a bill of particulars not sufficient. The allegations must state the facts and circumstances
interrupt the time to file a responsive pleading. In the case of a motion to from which the fraud, deceit, machination, false pretenses,
dismiss, the period starts running again as soon as the movant receives a misrepresentation, and threats may be inferred as a conclusion. In his
copy of the order of denial. In the case of a motion for a bill of particulars, complaint, the appellant merely averred that all the documents sought
the suspended period shall continue to run upon service on the movant to be annulled were all executed through the use of deceits, machination,
of the bill of particulars, if the motion is granted, or of the notice of its false pretenses, misrepresentation, threats, and other fraudulent means
denial, but in any event he shall have not less than five days within which without the particular facts on which alleged fraud, deceit, machination,
to file his responsive pleading. When Mercados MTD was denied, the or misrepresentations are predicated. Hence, it was proper for the trial
court to grant the defendant's motion for a bill of particulars, and when counsel appears for several parties, he shall only be entitled to one
the plaintiff failed to comply with the order, the trial court correctly copy of any paper served upon him by the opposite side. (2a)
dismissed the complaint.
Filing the act of presenting the pleading or other paper to the clerk of
cf Rule 8, Sec. 5 court.
Sec. 5. Fraud, mistake, condition of the mind. In all averments of Service the act of providing a party with a copy of the pleading or paper
fraud or mistake, the circumstances constituting fraud or mistake concerned.
must be stated with particularity. Malice, intent, knowledge or
other condition of the mind of a person may be averred 1. If any party has appeared by counsel, service should be upon his
generally. (5a) counsel, unless service upon the party himself is ordered by the
court.
de Leon: Was this dismissal for failure to file a bill of particulars with or
without prejudice? I think it is with prejudice because it should be in the 2. Where one counsel appears for several parties, he shall only be
nature of a dismissal based on failure to prosecute. entitled to one copy of any paper served upon him by the opposite
side.
Sec. 4. Papers required to be filed and served. Every judgment,

FILING AND SERVICE OF resolution, order, pleading subsequent to the complaint, written
motion, notice, appearance, demand, offer of judgment or similar
papers shall be filed with the court, and served upon the parties
PLEADINGS, JUDGMENTS AND OTHER PAPERS affected. (2a)
RULE 13 Papers required to be filed and served
Section 1. Coverage. This Rule shall govern the filing of all 1. judgment
pleadings and other papers, as well as the service thereof, except
those for which a different mode of service is prescribed. (n) 2. resolution
Sec. 2. Filing and service, defined. Filing is the act of presenting 3. order
the pleading or other paper to the clerk of court.
4. pleading subsequent to the complaint
Service is the act of providing a party with a copy of the pleading
or paper concerned. If any party has appeared by counsel, service 5. written motion
upon him shall be made upon his counsel or one of them, unless
6. notice
service upon the party himself is ordered by the court. Where one
7. appearance 1. personally presenting the original copies to the clerk of court, who
shall endorse on the pleading the date and hour of filing
8. demand
2. sending the original copies by registered mail, the date of the mailing
9. offer of judgment as shown by the post office stamp on the envelope or the registry
receipt, shall be considered as the date of their filing
10. or similar papers
Note that filing may not be by ordinary mail or substituted service. These
Sec. 11. Priorities in modes of service and filing. Whenever
methods are available only on service of papers, not filing.
practicable, the service and filing of pleadings and other papers shall
be done personally. Except with respect to papers emanating from Sec. 12. Proof of filing. The filing of a pleading or paper shall be
the court, a resort to other modes must be accompanied by a written proved by its existence in the record of the case. If it is not in the
explanation why the service or filing was not done personally. A record, but is claimed to have been filed personally, the filing shall be
violation of this Rule may be cause to consider the paper as not filed. proved by the written or stamped acknowledgment of its filing by the
(n) clerk of court on a copy of the same; if filed by registered mail, by the
registry receipt and by the affidavit of the person who did the mailing,
Except court papers, resort to modes other than personal service must be
containing a full statement of the date and place of depositing the
accompanied by a written explanation why the service or filing was not
mail in the post office in a sealed envelope addressed to the court,
done personally, otherwise it is ground to consider the paper as not filed.
with postage fully prepaid, and with instructions to the postmaster to
Sec. 3. Manner of filing. The filing of pleadings, appearances, return the mail to the sender after ten (10) days if not delivered. (n)
motions, notices, orders, judgments and all other papers shall be
Proof of filing
made by presenting the original copies thereof, plainly indicated as
such, personally to the clerk of court or by sending them by registered 1. its existence in the record of the case
mail. In the first case, the clerk of court shall endorse on the pleading
the date and hour of filing. In the second case, the date of the mailing 2. If it is not in the record, but is claimed to have been filed
of motions, pleadings, or any other papers or payments or deposits,
as shown by the post office stamp on the envelope or the registry a. Personally written or stamped acknowledgment of its filing by
receipt, shall be considered as the date of their filing, payment, or the clerk of court on a copy
deposit in court. The envelope shall be attached to the record of the
b. registered mail by the
case. (la)
1) registry receipt and
2 ways of filing
2) affidavit of the person who did the mailing,
containing a full statement of
a) the date and place of depositing the mail in the post locality of either the sender or the addressee, service may be done by
office ordinary mail. (5a)
b) in a sealed envelope Sec. 8. Substituted service. If service of pleadings, motions,

notices, resolutions, orders and other papers cannot be made under
c) addressed to the court the two preceding sections, the office and place of residence of the
party or his counsel being unknown, service may be made by
d) with postage fully prepaid
delivering the copy to the clerk of court, with proof of failure of both
e) with instructions to the postmaster to return the mail to personal service and service by mail. The service is complete at the
the sender after 10 days if not delivered time of such delivery. (6a)
Sec. 4. Papers required to be filed and served. xxx (moved to Sec. 9. Service of judgments, final orders or resolutions.
after Sec. 2) Judgments, final orders or resolutions shall be served either
personally or by registered mail. When a party summoned by
Sec. 5. Modes of service. Service of pleadings, motions, notices, publication has failed to appear in the action, judgments, final orders
orders, judgments and other papers shall be made either personally or or resolutions against him shall be served upon him also by
by mail. (3a) publication at the expense of the prevailing party. (7a)
Sec. 6. Personal service. Service of the papers may be made by When a party summoned by publication has failed to appear in the
delivering personally a copy to the party or his counsel, or by leaving action, judgments, final orders or resolutions against him shall be served
it in his office with his clerk or with a person having charge thereof. If upon him also by publication at the expense of the prevailing party.
no person is found in his office, or his office is not known, or he has no
office, then by leaving the copy, between the hours of eight in the Sec. 10. Completeness of service. Personal service is complete
morning and six in the evening, at the party's or counsel's residence, if upon actual delivery. Service by ordinary mail is complete upon the
known, with a person of sufficient age and discretion then residing expiration of ten (10) days after mailing, unless the court otherwise
therein. (4a) provides. Service by registered mail is complete upon actual receipt
by the addressee, or after five (5) days from the date he received the
Sec. 7. Service by mail. Service by registered mail shall be made first notice of the postmaster, whichever date is earlier. (8a)
by depositing the copy in the office, in a sealed envelope, plainly
addressed to the party or his counsel at his office, if known, otherwise Sec. 11. Priorities in modes of service and filing. xxx (moved to
at his residence, if known, with postage fully pre-paid, and with before Sec. 3)
instructions to the postmaster to return the mail to the sender after
4 modes of service of papers
ten (10) days if undelivered. If no registry service is available in the
1. personal complete upon delivery
2. Registered mail complete upon actual receipt, or after 5 days Sec. 12. Proof of filing. xxx (moved to after Sec. 3)
receipt of first notice of the postmaster, whichever is earlier
Sec. 13. Proof of service. Proof of personal service shall consist
3. ordinary mail complete upon expiration of 10 days after mailing, of a written admission of the party served, or the official return of the
unless the court otherwise provides server, or the affidavit of the party serving, containing a full
statement of the date, place and manner of service. If the service is by
4. substituted service complete upon delivery to the clerk of court ordinary mail, proof thereof shall consist of an affidavit of the person
mailing of facts showing compliance with section 7 of this Rule. If
Priorities in personal service of papers
service is made by registered mail, proof shall be made by such
1. leaving it in his office with his clerk or with a person having charge affidavit and the registry receipt issued by the mailing office. The
thereof registry return card shall be filed immediately upon its receipt by the
sender, or in lieu thereof the unclaimed letter together with the
2. if not possible, then by leaving the copy, between 8 a.m. to 6 p.m. at certified or sworn copy of the notice given by the postmaster to the
his residence, with a person of sufficient age and discretion then addressee. (10a)
residing therein
cf Rule 13, Sec. 7
Priorities in service by mail of papers
Sec. 7. Service by mail. Service by registered mail shall be made
1. registered mail to office, if known by depositing the copy in the office, in a sealed envelope, plainly
addressed to the party or his counsel at his office, if known,
2. otherwise registered mail to residence, if known
otherwise at his residence, if known, with postage fully pre-paid,
3. If no registry service is available in the locality of either the sender or and with instructions to the postmaster to return the mail to the
the addressee, service may be done by ordinary mail. sender after ten (10) days if undelivered. If no registry service is
available in the locality of either the sender or the addressee,
Requisites for substituted service of papers service may be done by ordinary mail. (5a)
1. service can not be made personally or by mail Proof of service of papers
2. the office and residence of the party or his counsel being unknown 1. personal service shall consist of
3. deliver a copy to the clerk of court a. either
4. with proof of failure of both personal service and service by mail 1) written admission of the party served
(certified or sworn copy of the notice given by the postmaster to the
addressee) 2) official return of the server, or
3) the affidavit of the party serving Sec. 14. Notice of lis pendens. In an action affecting the title or
the right of possession of real property, the plaintiff and the
b. and, containing a full statement of the defendant, when affirmative relief is claimed in his answer, may
record in the office of the registry of deeds of the province in which
1) date
the property is situated a notice of the pendency of the action. Said
2) place and notice shall contain the names of the parties and the object of the
action or defense, and a description of the property in that province
3) manner of service. affected thereby. Only from the time of filing such notice for record
shall a purchaser, or encumbrancer of the property affected thereby,
2. registered mail proof shall be made by
be deemed to have constructive notice of the pendency of the action,
a. affidavit showing and only of its pendency against the parties designated by their real
names
1) deposit of the copy in the office
The notice of lis pendens hereinabove mentioned may be
2) in a sealed envelope cancelled only upon order of the court, after proper showing that the
notice is for the purpose of molesting the adverse party, or that it is
3) plainly addressed to the party or his counsel at his not necessary to protect the rights of the party who caused it to be
office, if known, otherwise at his residence, if known recorded. (24a, R14)
4) postage fully pre-paid Procedure in a notice of lis pendens (either by the plaintiff or the
5) with instructions to the postmaster to return the mail defendant, when affirmative relief is claimed in his answer)
to the sender after 10 days if undelivered 1. action affecting the title or the right of possession of real property
b. registry receipt issued by the mailing office 2. record in the office of the registry of deeds of the province in which
c. and, registry return card which should be filed immediately upon the property is situated a notice of the pendency of the action
its receipt by the sender (Escolin: not really required) 3. notice shall contain the
3. ordinary mail consist of an affidavit of the person mailing showing a. names of the parties
no registry service is available in the locality of either the sender or
the addressee b. object of the action or defense
4. Substituted service c. description of the property affected
4. Only from the time of filing such notice for record shall a purchaser, BENECO board adopted resolutions
or encumbrancer of the property affected thereby, be deemed to
have constructive notice of the pendency of the action, and only of HELD Transmission through a private carrier or letter-forwarder, instead
its pendency against the parties designated by their real names of the Philippine Post Office, is not a recognized mode of filing pleadings.
The date of delivery of pleadings to a private letter-forwarding agency is
5. notice of lis pendens may be cancelled only upon order of the court, not to be considered as the date of filing thereof in court. In such cases,
after proper showing that the date of actual receipt by the court, and not the date of delivery to the
private carrier, is deemed the date of filing of that pleading.
a. the notice is for the purpose of molesting the adverse party, or
b. it is not necessary to protect the rights of the party who caused it

ALIPOOS V. CA, 106 SCRA 159 (1981)
to be recorded
Where a party is represented by counsel on record, service of papers
CASES should be made to such counsel. Service to the party himself is
ineffective, until the party actually gives the paper served to his counsel
on which date the paper is deemed served.
BENGUET ELECTRIC V. NLRC, 209 SCRA 55 (1992)
FACTS Peter Cosalan was the GenMgr of Benguet Electric Coop
(BENECO). Cosalan received Audit Memo#1 issued by the COA. The MAGNO V. CA, 152 SCRA 555 (1987)
memo noted that cash advances received by officers and employees of When a party is represented by counsel, notice should be made upon the
BENECO had beed virtually written off in the books of BENECO. COA counsel of record at his given address to which notices of all kinds
directed BENECO to secure the approval of the Natl Electric Admin emanating from the court should be sent in the absence of a proper and
(NEA) before writing off said cash advances. adequate notice to the court of a change of address. The rule is that in
case of failure of the addressee to claim his registered mail, service of
COA issued another memo addressed to Cosalan inviting attention to the
notice becomes effective at the expiration of the 5-day period from the
fact that the audit of per diems and allowances received by officials and
date of first notice. If counsel moved to another address without
members of the Board of Directors of BENECO showed substantial
informing the court of his change of address the omission or neglect will
inconsistencies with the directives of the NEA. The memo once again
not affect the date the paper is deemed served. Subsequent service on
directed the taking of immediate action in conformity with existing NEA
the clients themselves is not even necessary.
regulations.
BENECO received COA Audit Report on the financial status and

operations of BENECO. The report noter the irregularities in the use of ADAMSON OZANAM EDUCATIONAL INSTITUTION
funds released by NEA to BENECO and recommended that appropriate V. ADAMSON UNIVERSITY FACULTY AND
remedial action be taken. EMPLOYEES ASSOCIATION, 179 SCRA 279 (1989)
Where the copy of the decision is served on a person (e.g. security guard) the plausibility of an explanation, a court shall likewise consider the
who is neither a clerk nor one in charge of the attorney's office, such importance of the subject matter of the case or the issues involved
service is invalid and is not considered as service on the party. therein, and the prima facie merit of the pleading sought to be
expunged. This applies to both service of pleadings and other papers on
the adverse party or his counsel and to the filing of pleadings and other
ARAMBURO V. CA, 101 SCRA 146 (1980) papers in court. Here, in view of the proximity between the offices of
The duty of proving service of the appellant's brief upon the appellee lies opposing counsel and the absence of any attendant explanation as to
with the appellant. Registry receipts alone does not prove service by why personal service of the answer was not effected, the motion to
registered mail. The registry receipts are evidence of the posting of the expunge was prima facie meritorious. However, the grant or denial of
mail matter with the post office of the sender not of the delivery of said motion nevertheless remained within the sound exercise of the trial
said mail matter by the post office of the addressee. Furthermore, the court's discretion. The 1997 Rules of Civil Procedure took effect only on 1
date of actual delivery to the addressee cannot be ascertained from such July 1997, while the questioned answer was filed only on 8 August 1997,
registry receipts. To prove serviceby registered mail, the registry receipts or on the 39th day following the effectivity of the 1997 Rules.
must be accompanied by the affidavit of the serving party, and the Defendants counsel may not have been fully aware of the pertinent
registry return card or the unclaimed letter together with the certified or requirements. His shortcomings may be condoned. However strictest
sworn copy of the notice given by the postmaster to the addressee. compliance with Section 11 of Rule 13 is mandated one month from
promulgation of this Decision.
SOLAR TEAM ENTERTAINMENT V. RICAFORTE,

293 SCRA 661 (1998) SUMMONS
Facts: Defendants filed their answer, a copy of which was served on RULE 14
plaintiffs counsel through registered mail. There was no written
explanation as to why service was not made personally. Plaintiff moves Section 1. Clerk to issue summons. Upon the filing of the
to expunge the answer and to declare the defendant in default. Offices of complaint and the payment of the requisite legal fees, the clerk of
counsels of both parties are only 200 meters apart. court shall forthwith issue the corresponding summons to the
defendants. (1a)
Held: Personal service and filing is the general rule, and resort to other
modes of service and filing, the exception. Whenever personal service or Sec. 2. Contents. The summons shall be directed to the
filing is practicable, in light of the circumstances of time, place and defendant, signed by the clerk of court under seal, and contain: (a)
person, personal service or filing is mandatory. Only when personal the name of the court and the names of the parties to the action; (b) a
service or filing is not practicable may resort to other modes be had, direction that the defendant answer within the time fixed by these
which must then be accompanied by a written explanation as to why Rules; (c) a notice that unless the defendant so answers, plaintiff will
personal service or filing was not practicable to begin with. In adjudging take judgment by default and may be granted the relief applied for.
A copy of the complaint and order for appointment of guardian ad Procedure in summons
litem, if any, shall be attached to the original and each copy of the
summons. (3a) 1. filing of the complaint and the payment of the requisite legal fees
Contents of a summons 2. the clerk of court issues the corresponding summons to the
defendants
1. names of the court and parties to the action
3. summons served by
2. a direction that the defendant answer within the time fixed by these
Rules a. the sheriff
3. a notice that unless the defendant so answers, plaintiff will take b. his deputy
judgment by default and may be granted the relief applied for.
c. other proper court officer, or
4. copy of the complaint and order for appointment of guardian ad
d. any suitable person authorized by the court issuing the
litem, if any
summons, for justifiable reasons
Sec. 3. By whom served. The summons may be served by the
4. If
sheriff, his deputy, or other proper court officer, or for justifiable
reasons by any suitable person authorized by the court issuing the a. service has been completed within 5 days from service, the
summons. (5a) server shall
Sec. 4. Return. When the service has been completed, the 1) serve a copy of the return, personally or by registered
server shall, within five (5) days therefrom, serve a copy of the return, mail, to the plaintiff's counsel and
personally or by registered mail, to the plaintiff's counsel, and shall
return the summons to the clerk who issued it, accompanied by proof 2) return the summons to the clerk who issued it,
of service. (6a) accompanied by proof of service
Sec. 5. Issuance of alias summons. If a summons is returned b. If a summons is returned without being served on any or all of the
without being served on any or all of the defendants, the server shall defendants
also serve a copy of the return on the plaintiff's counsel, stating the
1) server shall serve a copy of the return on the
reasons for the failure of service, within five (5) days therefrom. In
plaintiff's counsel, stating the reasons for the failure of
such a case, or if the summons has been lost, the clerk, on demand of
service within 5 days therefrom
the plaintiff, may issue an alias summons. (4a)
2) the clerk, on demand of the plaintiff, may issue an b. Absent from the Philippines
alias summons (also if summons has been lost)
1) Action in rem or quasi in rem only Extraterritorial
de Leon: Here is my humble attempt to condense the rules on summons service (Rule 14, Sec. 15)
on defendant who is a
2) Action in personam, and judgment can not be
1. resident secured by attachment (e.g. action for injunction)
a. Present in the Philippines a) wait for the defendant to come to the Philippines and to
serve summons then
1) Personal service (Rule 14, Sec. 6)
b) bait the defendant to voluntarily appear in court (Rule 14,
2) Substituted service (Rule 14, Sec. 7) Sec. 20)
3) Publication, but only if c) plaintiff can NOT resort to extraterritorial service of
summons [Kawasaki Port Services v. Amores, 199 SCRA
a) his identity or whereabouts is unknown (Rule 14, Sec. 14),
230 (1991), and Dial Corporation v. Soriano, 161 SCRA 737
AND
(1988)].
b) the action is in rem or quasi in rem [Citizen Surety v.
Sec. 6. Service in person on defendant. Whenever practicable,
Melencio-Herrera, 38 SCRA 369 (1971)]
the summons shall be served by handing a copy thereof to the
b. Absent from the Philippines defendant in person, or, if he refuses to receive and sign for it, by
tendering it to him. (7a)
1) Substituted service (Rule 14, Sec. 7)
Sec. 7. Substituted service. If, for justifiable causes, the
2) Extraterritorial service {Rule 14, Sec. 16 and 15; defendant cannot be served within a reasonable time as provided in
action need not be in rem or quasi in rem [Valmonte v. the preceding section, service may be effected (a) by leaving copies of
CA, 252 SCRA 92 (1996)]} the summons at the defendant's residence with some person of
suitable age and discretion then residing therein, or (b) by leaving the
2. non-resident
copies at defendant's office or regular place of business with some
a. Present in the Philippines competent person in charge thereof. (8a)
1) Personal service (Rule 14, Sec. 6) Priority in modes of service of summons
2) Substituted service (Rule 14, Sec. 7)
1. personal - by handing a copy to the defendant, or, if he refuses to service may be effected upon all the defendants by serving upon any
receive and sign for it, by tendering it to him one of them, or upon the person in charge of the office or place of
business maintained in such name. But such service shall not bind
2. substituted by leaving copies of the summons at the individually any person whose connection with the entity has, upon
due notice, been severed before the action was brought. (9a)
a. defendant's residence with some person of suitable age and
discretion then residing therein, or cf Rule 3, Sec. 15
b. defendant's office or regular place of business with some Sec. 15. Entity without juridical personality as defendant. When
competent person in charge thereof two or more persons not organized as an entity with juridical
personality enter into a transaction, they may be sued under the
Whenever practicable, the summons shall be served personally. If, for
name by which they are generally or commonly known.
justifiable causes, the defendant cannot be served within a reasonable
time, service may be effected by substituted service. In the answer of such defendant, the names and addresses of the
persons composing said entity must all be revealed. (15a)
Note that in substituted service of summons, priority is the residence of
the defendant himself, not counsel, before office, while in service of Chang Kai Shek v. CA, 172 SCRA 389 (1989)
other papers, priority is the office of counsel of record, before the
residence. Facts: Dismissed teacher sues unincorporated school. Plaintiff tries to
amend to implead school officials, but CFI dismissed the case. CA
Summons are served on the defendant himself because he has yet no reverses.
counsel of record, unlike service of other papers which are served
primarily on counsel. Held: The school can not invoke its non-compliance with the law to
escape being sued. It is now in estoppel.
Summons may not be served by registered or ordinary mail. Substituted
service in summons (leaving copies not with the defendant personally) is Sec. 9. Service upon prisoners. When the defendant is a prisoner
different in substituted service of other papers (leaving copies with the confined in a jail or institution, service shall be effected upon him by
clerk of court). the officer having the management of such jail or institution who is
deemed deputized as a special sheriff for said purpose. (12a)
de Leon: Distinguish filing of papers, from service of papers and service
of summons Sec. 10. Service upon minors and incompetents. When the
defendant is a minor, insane or otherwise\ an incompetent, service
Sec. 8. Service upon entity without juridical personality. When shall be made upon him personally and on his legal guardian if he has
persons associated in an entity without juridical personality are sued one, or if none, upon his guardian ad litem whose appointment shall
under the name by which they are generally or commonly known,
be applied for by the plaintiff. In the case of a minor, service may also Sec. 14. Service upon defendant whose identity or whereabouts are
be made on his father or mother. (10a, 11a) unknown. In any action where the defendant is designated as an
unknown owner, or the like, or whenever his whereabouts are
Service of summons on minor and incompetents should be both unknown and cannot be ascertained by diligent inquiry, service may,
personally AND on his legal guardian. by leave of court, be effected upon him by publication in a newspaper
of general circulation and in such places and for such time as the court
Sec. 11. Service upon domestic private juridical entity. When the
may order. (16a)
defendant is a corporation, partnership or association organized
under the laws of the Philippines with a juridical personality, service Escolin: Service by publication can only be possible if the action is in rem
may be made on the president, managing partner, general manager, or quasi in rem. If the action is in personam, summons by publication is
corporate secretary, treasurer, or in-house counsel. (13a) not valid.
Sec. 12. Service upon foreign private juridical entity. When the Requisites for service by publication
defendant is a foreign private juridical entity which has transacted
business in the Philippines, service may be made on its resident agent 1. the action is in rem or quasi in rem
designated in accordance with law for that purpose, or, if there be no
such agent, on the government official designated by law to that 2. defendants identity or whereabouts
effect, or on any of its officers or agents within the Philippines. (14a)
a. are unknown and
cf Rule 11 Sec. 2
b. cannot be ascertained by diligent inquiry
Sec. 2. Answer of a defendant foreign private juridical entity.
3. with leave of court
Where the defendant is a foreign private juridical entity and
service of summons is made on the government official Sec. 15. Extraterritorial service. When the defendant does not
designated by law to receive the same, the answer shall be filed reside and is not found in the Philippines, and the action affects the
within thirty (30) days after receipt of summons by such entity. personal status of the plaintiff or relates to, or the subject of which is,
(2a) property within the Philippines, in which the defendant has or claims
a lien or interest, actual or contingent, or in which the relief
Sec. 13. Service upon public corporations. When the defendant is
demanded consists, wholly or in part, in excluding the defendant
the Republic of the Philippines, service may be effected on the
from any interest therein, or the property of the defendant has been
Solicitor General; in case of a province, city or municipality, or like
attached within the Philippines, service may, by leave of court, be
public corporations, service may be effected on its executive head, or
effected out of the Philippines by personal service as under section 6;
on such other officer or officers as the law or the court may direct. (15)
or by publication in a newspaper of general circulation in such places
and for such time as the court may order, in which case a copy of the
summons and order of the court shall be sent by registered mail to the 3. leave of court
last known address of the defendant, or in any other manner the
court may deem sufficient. Any order granting such leave shall specify 4. the order shall specify a reasonable time, which shall not be less than
a reasonable time, which shall not be less than sixty (60) days after 60 days after notice, within which the defendant must answer
notice, within which the defendant must answer. (l7a)
Actions in rem or quasi in rem
Sec. 16. Residents temporarily out of the Philippines. When any
1. affects the personal status of the plaintiff or
action is commenced against a defendant who ordinarily resides
within the Philippines, but who is temporarily out of it, service may, 2. relates to, or the subject of which is, property within the Philippines
by leave of court, be also effected out of the Philippines, as under the
preceding section. (18a) a. in which the defendant has or claims a lien or interest, actual or
contingent, or
Requisites for extraterritorial service
b. in which the relief demanded consists, wholly or in part, in
1. Either excluding the defendant from any interest therein, or
a. defendant does not reside and is not found in the Philippines, or c. belonging to the defendant and has been attached
b. defendant ordinarily resides within the Philippines, but who is How extraterritorial service of summons effected with leave of court
temporarily out of it
1. by personal service out of the Philippines
2. action either
2. by publication with copy of the summons and order of the court shall
a. affects the personal status of the plaintiff or be sent by registered mail to the last known address of the
defendant, or
b. relates to, or the subject of which is, property within the
Philippines 3. in any other manner the court may deem sufficient (should be
resorted to when #2 is impossible)
1) in which the defendant has or claims a lien or
interest, or a. e.g. service by registered mail where registry return shows actual
receipt [Carriaga, Jr. v. Malaya, 143 SCRA 441 (1986)]
2) in which the relief demanded consists, wholly or in
part, in excluding the defendant from any interest b. must be made outside the Philippines [Valmonte v. CA, 252 SCRA
therein, or 92 (1996)]
3) belongs to the defendant and has been attached

CARRIAGA, JR. V. MALAYA, 143 SCRA 441 (1986) principles laid down in the provisions of Secs. 17, 7 and 22, Rule 14 of the
New Rules of Court to Wit:
FACTS Plaintiffs (private respondents herein) Ana Almonte Cariaga
Soon filed in her behalf and in behalf of her minor daughter Carolina, an "Section 17. Extraterritorial service. When the defendant does not
action for (1) Annulment of a Deed of Extra-Judicial Partition of Real reside and is not found in the Philippines and the action affects the
Property, (2) Cancellation of Transfer Certificate of Title (TCT), (3) personal status of the plaintiff or relates to, or the subject of which is,
Recovery of Real Property with damages, in the Laguna CFI. All property within the Philippines, in which the defendant has or claims
defendants in said action filed their answer with counterclaim with the a lien or interest, actual or contingent, or in which the relief
exception of defendants (petitioners herein) Jose C. Cariaga Jr. and demanded consists, wholly or in part, in excluding the defendant
Marieta Cariaga-Celis who were both residing abroad and were not from any interest therein, or the property of the defendant has been
served with summons. The lower court upon motion of plaintiffs granted attached within the Philippines, service may, by leave of court, be
them leave to effect extra-territorial service of summons upon said effected out of the Philippines by personal service as under Section 7;
defendants pursuant to Secs. 7, 17 and 18 of Rule 14 of the New Rules of or by publication in a newspaper of general circulation in such places
Court. Accordingly, summons with copies of the complaint were served and for such time as the court may order, in which case a copy of the
to the defendants by registered mail abroad (Guam and U.S.A.) by the summons and order of the court shall be sent by registered mail to
Clerk of Court at the instance of plaintiffs. the last known address of the defendant, or in any other manner the
court may deem sufficient. Any order granting such leave shall
Defendants, who are residents of the Philippines, filed a motion to set
specify a reasonable time, which shall not be less than sixty (60) days
aside the said summons and to declare the service of summons abroad
after notice, within which the defendant must answer."
by registered mail as null and void, it being allegedly irregular and
unauthorized under the provisions of Rule 14 of the Rules of Court to Sec. 7. Personal service of summons. The summons shall be served
which motion plaintiffs filed their opposition. CFI denied the motion and by handing a copy thereof to the defendant in person, or if he refuses
ruled that "Defendants Jose C. Cariaga, Jr., and Marietta C. Cariaga, to receive it, by tendering it to him."
having already received copies of plaintiffs' Complaint with the service of
summons on them, said defendants are given NINETY (90) days from Sec. 22. Proof of service by registered mail. Service by registered
receipt of this Order within which to file responsive pleadings. mail under this rule may be proved by a certificate of the sheriff or
affidavit of the person especially authorized by the court, showing
Defendants (petitioner herein), residing abroad, by special appearance that a copy of the summons and papers attached thereto, inclosed in
and thru counsel filed their motion to consider the service of summons an envelope and addressed to the defendant, with postage prepaid,
upon them by registered mail as null and void. CFI issued another order has been mailed, to which certificate or affidavit the registry receipt
denying the said motion. and return card shall be attached."
ISSUE Whether the service of summons by registered mail upon HELD Under Section 17, extraterritorial service of summons is proper: (1)
defendants in the case at bar is one which is contemplated within the when the action affects the personal status of the plaintiff; (2) when the
action relates to, or the subject of which is, property within the consideration, service of summons was made upon them (although
Philippines, in which the defendant has or claims a lien or interest, actual claimed erroneously by them as defective).
or contingent; (3) when the relief demanded in such an action consists,
wholly or in part, in excluding the defendant from any interest in HELD When extraterritorial service of summons is proper, service by
property located in the Philippines; and (4) when defendant registered mail is sufficient (in any other manner which the court may
nonresident's property has been attached within the Philippines (Sec. 17, deem sufficient). More so if the defendants actually received the
Rule 14, Rules of Court). summons and copies of the complaint and as evidenced by the Registry
Return Cards. Whatever defect there may have been in the service of
In any of such four cases, the service of summons may, with leave of summons may be corrected by the court by giving the defendants 90
court, be effected out of the Philippines in three ways: (1) by personal days from receipt of order within which to file their responsive pleadings.
service; (2) by publication in a newspaper of general circulation in such
places and for such time as the court may order, in which case a copy of Escolin: There is no provision that allows extraterritorial service by
the summons and order of the court should be sent by registered mail to registered mail only. In this case, it was allowed only because the registry
the last known address of the defendant; and (3) in any other manner card was returned which proved that the defendant abroad did in fact
which the court may deem sufficient. The third mode of extraterritorial receive the summons, otherwise the court would not have allowed it.
service of summons was substantially complied with in this case. (De
Midgely v. Ferandos, 64 SCRA 23, 33, 34).
MONTALBAN V. MAXIMO, 22 SCRA 1070 (1968)
There is no question that the requirement of due process has been met Summons is validly served if it is left wth "some person of suitable age
as shown by the fact that defendants actually received the summonses and discretion then residing" in the defendants residence, even if
and copies of the complaint and as evidenced by the Registry Return defendant was abroad at that time. Plaintiff is not obligated to ensure
Cards marked as Annex A-1 (page 56-Record) and Annex B-1. Whatever that the summons was actually delivered to the defendant. The fact that
defect there may have been in the service of summons was aptly the defendant did not actually receive the summons will not invalidate
corrected by the court a quo in its assailed order dated January 16, 1978, the service of such summons.
which gave said defendants ninety (90) days from receipt of order within
which to file their responsive pleadings. Defendants have no reason to Extraterritorial service is but one of the modes of effective service to
complain that they were unaware of the action filed against them or bring a defendant in court. The normal method of service of summons on
claim that they were denied due process. one temporarily absent is by substituted service. Extraterritorial service
(personal service outside the country and service by publication) are not
The case of Habana v. Vamenta et al., L-27091, June 30, 1970, or 33 SCRA ordinary means of summoning defendants. Where personal service is
569, cited by the petitioners in support of their claim has no bearing in impossible, substituted service becomes a necessity.
the case at bar since in said case service of summons was never made,
even if defendant knew of the case against him, while in the case under NOTE: Laus ruling now applies.
FACTS Plaintiffs commenced suit against Fr. Gerardo Maximo who, defendant alleged that he was then "financially hard up," and that the
according to the complaint, was residing at the parish church at Sheriff found no property that could be subject to execution.
Concepcion, Malabon, Rizal. Plaintiffs' cause of action for damages
sprang from a motor vehicle accident which occurred at Padre Faura St., An alias writ of execution was issued. Copy thereof was received by
Manila. Paul Hershell Montalban, son of plaintiffs, suffered injuries. defendant.
The complaint was filed, summons was served on defendant Fr. Maximo Deputy Sheriff attached and levied on a residential house located in
at the parish church of Concepcion, Malabon, Rizal, through Fr. Arsenio Caloocan City and purportedly belonging to defendant.
Bautista a priest in the same parish church.
Two years and two months after defendant admittedly learned of the
Fr. Bautista sent a letter to the Clerk of Court of the Manila CFI, informing lower court's decision from counsel for plaintiffs herein, said defendant,
him that defendant Fr. Maximo left for Europe and "will be back on the by counsel, filed a verified motion in the same case praying for the
first week of November." Actually, Fr. Maximo returned from abroad annulment of the entire proceedings. His ground is this: Summons was
about the second week of October, 1958. not duly served upon him "as provided under Sec. 7, Rule 7 of the Rules of
Court"; accordingly, the lower court "did not acquire jurisdiction over his
CFI declared defendant in default, on plaintiffs' motion. Upon plaintiffs' person", and "the trial and decision by default" are "null and void,"
evidence, the court rendered judgment sentencing defendant to pay
damages claimed by plaintiff. The court denied this motion.
Plaintiffs themselves wrote defendant Fr. Maximo, at the Malabon Defendant's move to reconsider was rejected by the court.
Catholic Church, informing the latter of the CFI's decision, requesting
Hence, this appeal from the orders duly certified to the SC by the CA.
prompt compliance therewith and suggesting that he communicate with
or personally see their lawyer, Jose W. Diokno, at the latter's address, 332 After the case was submitted for decision, defendant's lawyer informed
Regina Building, Escolta, Manila. the SC of the death of defendant on August 1, 1965.
Defendant, through his legal counsel, Dr. Nicanor T. Santos, answered Following extensive efforts to have the deceased defendant substituted
the foregoing letter expressing regret that he could not comply with by any of his heirs or the executor or administrator of his estate, which
plaintiffs' request, because he (defendant) was not aware of the said civil were to no avail, the SC appointed the Clerk of Court of the Maniala CFI,
case, and that, in the criminal action arising out of the same incident, said representative of the deceased defendant.
defendant was acquitted by the Municipal Court of Manila.
HELD 1. A question of transcendental importance which necessarily
Deputy Sheriff of Rizal notified defendant of the issuance of the writ of involves an inquiry into procedural due process is whether summons in a
execution and demanded payment of the amount set forth therein. The suit in personam against a resident of the Philippines temporarily absent
Sheriff's return to the writ shows that in response to such demand, therefrom may be validly effected by substituted service under Section 8,
Rule 14 (formerly Section 8, Rule 7) of the Rules of Court. A head on "SEC. 17. Extraterritorial service. When the defendant does not
collision of views becomes inevitable considering the diametrically reside and is not found in the Philippines and the action affects the
opposing positions taken by plaintiffs, on the one hand, and defendant, personal status of the plaintiff or relates to, or the subject of which is,
on the other. For, plaintiffs make the point that even with defendant property within the Philippines, in which the defendant has or claims a
temporarily abroad, substituted service is valid under Section 8 by lien or interest, actual or contingent, or in which the relief demanded
leaving a copy of the summons "at the defendant's dwelling house or consists, wholly or in part, in excluding the defendant from any interest
residence with some person of suitable age and discretion then residing therein, or the property of the defendant has been attached within the
therein." Philippines, service may, by leave of court, be effected out of the
Philippines by personal service as under section 7; or by publication in a
Plaintiffs argue that if the ordinary method prescribed by the rules, that newspaper of general circulation in such places and for such time as the
is, personal service under Section 7, Rule 14, is not feasible, then the court may order, in which case a copy of the summons and order of the
substituted service in Section 8 aforesaid comes into play. Section 8 says: court shall be sent by registered mail to the last known address of the
defendant, or in any other manner the court may deem sufficient. Any
"SEC. 8. Substituted service. If the defendant cannot be served
order granting such leave shall specify a reasonable time which shall not
within a reasonable time as provided in the preceding section, service
be less than sixty (60) days after notice, within which the defendant must
may be effected (a) by leaving copies of the summons at the defendant's
answer."
dwelling house or residence with some person of suitable age and
discretion then residing therein, or (b) by leaving the copies at Historically, in its common-law origin, the jurisdiction of courts to render
defendant's office or regular place of business with some competent judgments in personam was grounded on their de facto power over
person in charge thereof." defendant's person. Jurisdiction was based on the power to seize and
imprison defendant. If a defendant was absent from the territory, the
Upon the other hand, defendant advances the theory that in a situation
fact that he was a citizen would not enable the court's officers to seize
like the present, where defendant was temporarily abroad, the sole and
him and service could not represent this power. Hence, his presence
exclusive method of service of summons in a case in personam is that set
within the territorial jurisdiction was a prerequisite to the rendition of a
forth in Section 18, Rule 14 of the Rules (formerly Section 18, Rule 7),
judgment personally binding against him. Anglo-American law then
which reads:
emphasized the power concept of jurisdiction.
"SEC. 18. Residents temporarily out of the Philippines. When an
Continental law, however, was somewhat different. It had two
action is commenced against a defendant who ordinarily resides within
fundamental principles of Roman origin: (1) in suits in personam and
the Philippines, but who is temporarily out of it, service may, by leave of
those relating to movables, courts of the domicile of the defendant have
court, be effected out of the Philippines, as under the preceding section."
general jurisdiction actor rei forum sequitur; and (2) in actions
Section 17 referred to in Section 18 (Section 17, Rule 7 in the old Rules) in concerning immovables, the courts of the situs have exclusive
turn states: jurisdiction.
In the development of the law, the variance between Anglo- American that the service be such as may be reasonably expected to give the notice
law and continental law became "less and less clear-cut" because desired. Once the service provided by the rules reasonably accomplishes
"American law has had to yield to the increasing necessity of enlarging that end, the requirement of justice is answered, the traditional notions
more and more the catalogue of forums available to the plaintiff." of fair play are satisfied; due process is served.
Thus it is, that American cases forged the doctrine, now long recognized, In American jurisprudence, whether a defendant be in another state
that domiciliaries of a state, though temporarily out of its territorial under the federal system or is abroad in Europe, substituted service is still
jurisdiction, are always amenable to suits in personam therein. And this considered to be valid. The language in Milliken vs. Meyer, supra, is
precept is the foundation for the American rule that declares substituted expressive: "Its adequacy so far as due process is concerned is dependent
service binding on absent residents. The leading case of Milliken vs. on whether or not the form of substituted service provided for such cases
Meyer, furnishes the rationale: and employed is reasonably calculated to give him actual notice of the
proceedings and an opportunity to be heard. If it is, then traditional
" . . . the authority of a state over one of its citizens is not terminated by notions of fair play and substantial justice (McDonald vs. Mabee, supra)
the mere fact of his absence from the state. The state which accords him implicit in due process are satisfied."
privileges and affords protection to him and his property by virtue of his
domicile may also exact reciprocal duties. 'Enjoyment of the privileges of When the framers of our Rules adapted Section 8, it is to be implied that
residence within the state and the attendant right to invoke the they intended to give the provision the same meaning shaped out by the
protection of its laws, are inseparable' from the various incidences of jurisprudence of the jurisdiction from whence it was patterned. Section 8
state citizenship . . . The responsibilities of that citizenship arise out of is to be viewed in the same context it is understood in the American legal
the relationship to the state which domicile creates. That relationship is system. The word "defendant" in that provision is to be construed as
not dissolved by mere absence from the state. The attendant duties, like including any resident of this country. By comparative construction,
the rights and privileges incident to domicile, are not dependent on Section 8 is to be applied to all resident defendants without distinction
continuous presence in the state. One such incident of domicile is as to whether he is physically present in this country or not.
amenability to suit within the state even during sojourns without the
state, where the state has provided and employed e reasonable method Chief Justice Moran shares this view. Commenting on Section 18, Rule
for apprising such an absent party of the proceedings against him." 14, he states: "Since the defendant is residing in the Philippines,
jurisdiction over his person may be acquired by Philippine courts by
There should be no doubt, therefore, that in suits in personam, courts substituted service of summons under section 8. But extraterritorial
have jurisdiction over residents temporarily out of the country. service is allowed also by leave of court according to the above provision
[Section 18]." Justice Martin regards the word "residence" in Section 8 as
This brings us to the question of procedural due process. Substituted "the place where the person named in the summons is living at the time
service such as one contemplated in Section 8 upon a temporarily absent when the service is made, even though he may be temporarily out of the
resident, it has been held, is wholly adequate to meet the requirements state at the time."
of due process. The constitutional requirement of due process exacts
This construction is but fair. It is in accord with substantial justice. The time to time any incident of importance that may affect him or his
burden on a plaintiff is not to be enlarged with a restrictive construction business or his affairs. It is usual for such a man to leave at his home or
as desired by defendant here. Under the rules, a plaintiff, in the initial with his business associates information as to where he may be
stage of suit, is merely required to know the defendant's "dwelling house contacted in the event a question that affects him crops up. If he does
or residence" or his "office or regular place of business" and no more. not do what is expected of him, and a case comes up in court against
He is not asked to investigate where a resident defendant actually is, at him, he cannot in justice raise his voice and say that he is not subject to
the precise moment of filing suit. Once defendant's dwelling house or the processes of our courts. He cannot stop a suit from being filed
residence or office or regular place of business is known, he can expect against him upon a claim that he cannot be summoned at his dwelling
valid service of summons to be made on "some person of suitable age house or residence or his office or regular place of business.
and discretion then residing" in defendant's dwelling house or residence,
or on "some competent person in charge" of his office or regular place of Not that he cannot be reached within a reasonable time to enable him to
business. By the terms of the law, plaintiff is not even duty-bound to see contest a suit against him. There are now advanced facilities of
to it that the person upon whom service was actually made delivers the communication. Long distance telephone calls and cablegrams make it
summons to defendant or informs him about it. The law presumes that easy for one he left behind to communicate with him.
for him.
In the light of the foregoing, we find ourselves unwilling to concede that
It is immaterial then that defendant does not in fact receive actual notice. substituted service provided in Section 8 may be down- graded as an
This will not affect the validity of the service. Accordingly, the defendant ineffective means to bring temporarily absent residents within the reach
may be charged by a judgment in personam as a result of legal of our courts.
proceedings upon a method of service which is not personal, "which in
As we go back to the case at hand, there is the temporarily absent
fact may not become actual notice to him," and which may be
defendant who was a parish priest. Summons upon him was served upon
accomplished in his lawful absence from the country. For, the rules do
Fr. Bautista who lived in the same convent where defendant resided. Fr.
not require that papers be served on defendant personally or a showing
Bautista, we must assume, is a responsible person. Service upon him is
that the papers were delivered to defendant by the person with whom
effective.
they were left.
2. The view we take of this case sweeps away defendant's argument
Reasons for the views just expressed are not wanting. A man temporarily
that Section 18 is the sole provision that governs summons upon a
absent from this country leaves a definite place of residence, a dwelling
defendant temporarily absent in an action in personam, as here. Indeed,
where he lives, a local base, so to speak, to which any inquiry about him
defendant's posture strikes at the very language employed by this
may be directed and where he is bound to return. Where one temporarily
reglementary provision cited by him. The word "may" in the statement
absents himself, he leaves his affairs in the hands of one who may be
in Section 18 that "service may, by leave of court, be effected out of the
reasonably expected to act in his place and stead; to do all that is
Philippines," as under Section 17 will not support the deduction,
necessary to protect his interests; and to communicate with him from
without more, that Section 18 is the only provision controlling in this
case. On the contrary, the phraseology of the rule is a recognition of the June 8, 1959, or almost nine (9) months after the default order was
fact that substituted service out of the Philippines under Section 17 issued. Again, defendant did nothing. According to defendant, he
is but one of the modes of effective service to bring a defendant in court. learned of that judgment on December 20, 1959. The full impact of the
And upon the basic concepts under which our rules governing processes judgment totalling P34,000 must have by then left an indelible mark in
operate, the normal method of service of summons on one temporarily his mind. A judgment of a court of justice is no piddling matter. It should
absent is by substituted service set forth in Section 8. And this, because not be trifled with. Especially so when the amount is big, as it is here.
personal service outside the country and service by publication are not That same day December 20 his attorney took a hand on the
ordinary means of summoning defendants. matter, wrote back plaintiffs refusing payment of the claim. The first writ
of execution was served on defendant on January 14, 1960. That time he
In practical terms, we perceive that in suits in personam the more did not pay, because according to the Sheriff's return, defendant then
circuitous procedure delineated in Sections 17 and 18 is resorted to by a stated that he was "financially hard up."
plaintiff if defendant's dwelling house or residence or place of business in
this country is not known; or, if known, service upon him cannot be had Defendant did not bestir himself until February 20, 1962, i.e., not less
thereat upon the terms of Section 8. Here, since personal service is than two years and two months after he learned-by his own admission-of
impossible, resort to substituted service becomes a necessity. A the judgment. And, that was shortly after levy was made on his house in
comparison between the service in Section 8 and that in Sections 17 and Caloocan. It is in this factual environment that then CFI Judge Magno
18 is beside the point. They both provide for substituted service. Anyway, Gatmaitan, in his order of March 24, 1962, correctly observed that 'the
as Goodrich observed: "[I]f a substitute is to be made where an actual Court once again believes that this solution (denial of the motion to
personal service is impossible, 'the best is none too good.'" reconsider the appealed order) is just because of the apparent intentional
inaction of defendant since 20 December, 1959."
3. The judgment has long since become final. It enjoys the presumption
of regularity. It is, unless stricken down, entitled to respect. Non quieta Indeed, it was not right that defendant should have supinely sat on the
movere. Because "[p]ublic policy and sound practice demand that, at the decision, and deliberately disregarded the import thereof. Neither was it
risk of occasional errors, judgments of courts should become final at correct for him to have waited so long, slept on his rights, and only put
some definite date fixed by law." 25 plaintiffs to task when his own property was threatened because of the
levy and execution thereon.
The norm of conduct observed by defendant would not, we believe, tilt
the scales of justice in his favor. We go to the background facts. Logic The decision below may not thus be annulled. Plaintiffs may not be
and common sense tell us that Fr. Bautista who received the summons compelled to file a fresh suit. Because, prejudice to plaintiffs, which could
and who took interest in the case must have informed defendant one have been avoided by defendant, will become a reality. The additional
way or another of the suit, at the latest upon his return in October, 1958. expense, trouble and anxiety need not be essayed. The accident took
By then there was still time for him to move to set aside the default order place on December 16, 1957. The lower court's decision made mention of
of September 20, 1958. Defendant did not move. It is well to remember two eyewitnesses and two doctors of medicine who testified as to
also that judgment by default was not rendered against defendant until injuries. To bring back those witnesses to court becomes a serious
problem. Plaintiffs will have to search for them and if found, they may Proof of service of summons
not be able to present to the court a narrative as accurately as they had
done before. Time has an unfortunate tendency of obliterating 1. personal or substituted
occurrences from a witness' memory. Recollections are apt to be blurred.
a. in writing
Human memory can even be treacherous. Lapse of time may also carry
with it dissipation of other evidence. Surely, there is great validity to the b. by the server
statement that the march of time is truth in flight. 26 These, in broad
outlines, give life to the salutary policy on which laches is founded. c. set forth the manner, place, and date of service
WHEREFORE, the orders appealed from dated March 3, 1962 and March d. specify
24, 1962 are hereby affirmed.
1) any papers which have been served with the process
Sec. 17. Leave of court. Any application to the court under this and
Rule for leave to effect service in any manner for which leave of court
2) the name of the person who received the same
is necessary shall be made by motion in writing, supported by
affidavit of the plaintiff or some person on his behalf, setting forth the e. sworn to when made by a person other than a sheriff or his
grounds for the application. (19) deputy
Sec. 18. Proof of service. The proof of service of a summons 2. by publication
shall be made in writing by the server and shall set forth the manner,
place, and date of service; shall specify any papers which have been a. affidavit of
served with the process and the name of the person who received the
same; and shall be sworn to when made by a person other than a 1) the printer, his foreman or principal clerk, or
sheriff or his deputy. (20) 2) the editor, business or advertising manager
Sec. 19. Proof of service by publication. If the service has been b. to which affidavit a copy of the publication shall be attached
made by publication, service may be proved by the affidavit of the
printer, his foreman or principal clerk, or of the editor, business or c. an affidavit showing the deposit of a copy of the summons and
advertising manager, to which affidavit a copy of the publication shall order for publication in the post office, postage prepaid, directed
be attached, and by an affidavit showing the deposit of a copy of the to the defendant by registered mail to his last known address
summons and order for publication in the post office, postage
prepaid, directed to the defendant by registered mail to his last Sec. 20. Voluntary appearance. The defendant's voluntary
known address. (21) appearance in the action shall be equivalent to service of summons.
The inclusion in a motion to dismiss of other grounds aside from lack
of jurisdiction over the person of the defendant shall not be deemed a FACTS Plaintiff filed with Leyte CFI a complaint for recovery of real
voluntary appearance. (23a) property with damages against the defendants praying, among other
things, that he be declared the true and lawful owner of the parcel of land
This is a reiteration of La Naval case. which had been forcibly occupied by the defendants since 1962 under
claim of ownership, and that the defendants be ordered to pay him the
Assertion by the defendant of an affirmative relief is a voluntary
sums representing the value of the coconuts harvested from the land
appearance before the court.
since 1962; moral damages in an amount the court may find reasonable;
Filing of an answer is automatically a voluntary appearance. P260.00 for expenses of relocation survey; P300.00 attorney's fees and
the incidental expenses and costs of the proceeding.
de Leon: cf this with Corporation Law principles on foreign corporation
being sued. Summonses were issued on May 4, 1967, requiring the defendants to file
their answer to the complaint within 15 days from service thereof. A
CASES certain Patrolman Castulo Yobia of the Police Department of Jaro, Leyte,
served the summons on the defendants on May 15, 1967.
BELLO V. UBO, 117 SCRA 91 (1982) No answer was filed by the defendants. Plaintiff's counsel filed a motion
The enumeration of persons who may serve summons (sheriff or other to declare defendants in default. Acting upon said motion, the CFI
proper court officer of the province or, for special reasons, by a person declared the defendants in default and directed the plaintiff to present
especially authorized to serve the summons by the judge of the court ex-parte his evidence on the 24th day of the same month. Thereafter a
which issued the same) is exclusive. Where summons was served by a judgment by default was rendered by the CFI.
police officer, the court which issued the summons did not acquire
Upon receipt of the order of default, the defendants contracted the
jurisdiction over the person of the defendants. Mere tender of the
services of Atty. Generoso Casimpan who immediately inquired from
summons without giving the defendant a copy of the summons and the
Pat. Castulo Yobia about the service of the summons. Pat. Yobia then
of the complaint makes service highly irregular. Proof of service of a
showed him a copy of the complaint which he failed to deliver to the
summons shall be sworn to when made by a person other than the sheriff
defendants.
or his deputy. One copy of the summons should be served on each
defendant. Defendants' counsel filed a motion for relief from judgment charging
irregularity in the service of the summons and praying that the order of
Escolin: The court can deputize anyone, even civilians, to serve
default and the judgment by default be set aside and that defendants'
summons. Had the police officer been deputized, the fact of service of
answer, which was attached to said motion, be admitted. The
summons by him is by itself not enough to invalidate such service of
defendants alleged in said motion that the subject land was inherited by
summons.
them so that they have a good and valid right thereto. They further
alleged that they had been paying taxes on the land that the complaint
was filed merely to compel them to settle a criminal case for frustrated Sec. 5, Rule 14 of the Rules of Court, expressly provides that summons
homicide which they had filed against the plaintiff's son. may be served by the sheriff or other proper court officer of the province
or, for special reasons, by a person especially authorized to serve the
Leyte CFI issued an order denying the motion for relief from judgment on summons by the judge of the court which issued the same. Contrary to
the ground that the same was not accompanied by an affidavit of merit. appellee's contention, this enumeration is exclusive. Thus, in Sequito vs.
A copy of said order was received by the defendants on September 28, Letrondo, G.R. No. L-11588, July 20, 1959, 105 Phil. 1139, We considered
1967. as irregular the service of summons by a police sergeant who was not a
sheriff or a court officer and who was not authorized by the court to
Defendants' counsel filed a motion for reconsideration contending that
deliver the summons. And in the more recent case of Spouses Olar vs.
since the motion for relief from judgment was predicated on lack of
Cuna, G.R. No. L-47935, May 5, 1979, 90 SCRA 114, We ruled that the
jurisdiction over the person of the defendants, the same need not be
postmaster of Bato, Leyte, not being a sheriff or court officer, or a person
accompanied by an affidavit of merit, However, before the court could
authorized by the court to serve the summons cannot validly serve the
act on the motion for reconsideration, the defendants' counsel amended
summons. There, as in the case at bar where summons was served by
the same and attached thereto, their affidavit of merit.
one who is not included in the specification of Sec. 5, Rule 14 of the Rules
Leyte CFI issued an order denying defendants' motion for of Court, this Court had to rule that the court which issued the summons
reconsideration. A copy of said order was received by the defendants on did not acquire jurisdiction over the person of the defendants.
January 9, 1968.
Furthermore, the appellants point to other irregularities which attended
Defendants, thru counsel, filed a notice of appeal and a motion to appeal the service of summons by Pat. Yobia. Thus, it is alleged that said
as pauper and submitted to the court for approval their record on appeal. policeman merely tendered the summons to them and did not give them
The plaintiff, on the other hand, filed on January 31, 1968, a motion for a copy of the same and of the complaint. While it is true that Pat. Yobia
execution pending appeal. had denied such allegation in his counter-affidavit which We have
heretofore quoted, nevertheless, We find appellants' version to be more
Leyte CFI issued an omnibus order approving defendants' record on credible. For, the records of the case are replete with indications that the
appeal and directing that the appeal be given due course; granting serving policeman was grossly ignorant of the rules concerning
defendants' motion to appeal as pauper; and denying plaintiff's motion summons. Thus, the return of service shows that the summons was first
for execution pending appeal. served on the plaintiff (back of p. 3, records). Besides, such return of
service was not made under oath - in violation of Sec. 20, Rule 14 of the
ISSUE Was there a valid and effective service of summons?
Rules of Court - which requires that "the proof of service of a summons . .
HELD We hold that there was no valid service of summons on the . shall be sworn to when made by a person other than the sheriff or his
defendants and, consequently, the Leyte CFI did not acquire jurisdiction deputy." And even if We were to give credence to Pat. Yobia's counter-
over their person. affidavit, We would still find the service of the summons to be irregular
since it is expressly admitted therein that only one copy of the summons time longer than "prompt," and presupposes that a prior attempt at
and of the complaint was served on the two defendants. personal service, within a justifiable time frame as would be necessary to
bring the defendant within the jurisdiction of the court, had failed. The
Since a court acquires jurisdiction over the person of the defendant only substituted service should be availed only when the defendant cannot be
by means of a valid service of summons, trial and judgment without such served promptly in person. Impossibility of prompt service should be
valid service are, therefore, null and void. shown by stating the efforts made to find the defendant personally and
the failure of such efforts. The statement should be made in the proof of
WHEREFORE. the trial court's order of default and judgment by default
service. The sheriff's return in the case at bar readily reveals that it does
are set aside and said court is directed to accept defendants-appellants'
not (a) indicate the impossibility of service of summons within a
answer to the complaint and to conduct further proceedings on the case.
reasonable time, (b) specify the efforts exerted to locate the petitioners
Costs against plaintiff-appellee.
and (c) state that it was served on a person of sufficient age and
discretion residing therein. The fact of the matter is that Deputy Sheriff
LAUS V. CA, 219 SCRA 688 (1993) Cruz resorted to a substituted service on his first and only attempt
to effect a personal service. Upon being informed that the defendants
Facts: Torres filed against Laus a complaint for the collection of a sum of were not around at that time, he immediately resorted to a substituted
money. Deputy Sheriff proceeded to the defendants address to serve service through Josephine Areola, a person whose age he did not even
summons. He found no one in the house of defendants when he arrived know or attempt to discover. He did not even inquire about the
and then waited for 10 minutes. Thereupon, 2 women arrived and told whereabouts of the defendants, the time they were expected to return
him, upon his inquiry, that the defendants were not around. He then home, the hours of the day they could be contacted at their house or the
served the summons to the older woman, Josephine Areola, then 11 location of their offices, if any, in order that he could faithfully comply
years old. On the same date, Deputy Sheriff Cruz executed and filed a with the requirement of personal service. No earnest efforts were
return. Defendants did not file an answer, and hence was declared and exerted by Deputy Sheriff Cruz to effect the personal service of
judged in default. Defendants by way of a special appearance, filed a summons. There was undue, if not indecent, haste to serve the summons
motion to dismiss the case for lack of jurisdiction over their persons. at the first attempt without making sure that personal service was, by
They allege that the service of summons was ineffective because it was then and even thereafter, an impossibility.
not indicated in the return that the sheriff had first exerted efforts to
serve the same personally before resorting to substituted service. Furthermore, husband of defendant was impleaded as a co-defendant on
the theory that the liability is a conjugal partnership liability. He was sued
Held: Since the defendants did not voluntarily submit to the jurisdiction as an indispensable party. It was not even alleged that he had been
of the trial court, proper service of summons became imperative. The served with summons at all. Hence the TC never acquired jurisdiction
general rule is that summons must be personally served. If this mode of over his person and judgment against him was null and void.
service cannot be effected within a reasonable time, substituted service
may be resorted to. "Within a reasonable time" contemplates a period of
VALMONTE V. CA, 252 SCRA 92 (1996) not to render a judgment against him. As defendant Lourdes is a
nonresident who is not found in the Philippines, service of summons on
Facts: Dimalanta files a complaint for partition of real property and
her must be either (1) by personal service; (2) by publication and
accounting of rentals against spouses Valmonte. Lourdes Valmonte was
registered mail; or (3) in any other manner which the court may deem
residing in Wasington. Alfredo Valmonte was practicing law in Manila. In
sufficient. Since the service of summons upon Lourdes was not done by
a previous letter to Dimalanta, Lourdes stated that in regard to the
means of any of the first two modes. Neither does it qualify under the 3rd
partition of the property in question, all communications intended for
mode. This mode of service, like the first two, must be made outside the
Lourdes should be sent to her husband. The complaint now alleges that
Philippines, such as through the Philippine Embassy in the foreign
summons on Lourdes may be served on her husband Alfredo in his office
country where the defendant resides. Furthermore, service of summons
in Manila. Summons was served on Alfredo. Alfredo accepted the
on Alfredo was not made upon the order of the court and certainly was
summons, insofar as he was concerned, but refused to accept the
not a mode deemed sufficient by the court which in fact refused to
summons for his wife, Lourdes on the ground that he was not authorized
consider the service to be valid and on that basis declare Lourdes in
to accept the process on her behalf. Accordingly the process server left
default.
without leaving a copy of the summons and complaint for Lourdes.
Alfredo filed his answer with counterclaim. Lourdes did not file her In the second place, service in the attempted manner was not made upon
answer. RTC refused to declare Lourdes in default. CA reverses and prior leave of the trial court as required. Such leave must be applied for
declared her in default. by motion in writing, supported by affidavit of the plaintiff or some
person on his behalf and setting forth the grounds for the application.
Held: In an action in personam, personal service of summons or, if this is
Finally, because there was no order granting such leave, petitioner
not possible, substituted service, is essential. If the defendant is
Lourdes was not given ample time to file her Answer which, according to
temporarily abroad, but a Philippine resident, service of summons may,
the rules, shall be not less than 60 days after notice. It must be noted that
by leave of court, be made by publication. A resident defendant in an
the period to file an Answer in an action against a resident defendant (15
action in personam, who cannot be personally served with summons,
days from service) differs from the period given in an action filed against
may be summoned either by means of substituted service or by
a nonresident defendant who is not found in the Philippines (at least 60
publication. It should be noted that the defendant must be a resident of
days from notice).
the Philippines. On the other hand, if the action is in rem or quasi in rem,
jurisdiction over the person of the defendant is not essential for giving Lourdes did not appoint her husband as her attorney-in-fact. Although
the court jurisdiction so long as the court acquires jurisdiction over the she wrote plaintiff that "all communications" intended for her should be
res. If the defendant is a nonresident and he is not found in the country, addressed to her husband who is also her lawyer at the latter's address in
summons may be served exterritorialy. Manila, no power of attorney to receive summons for her can be inferred
therefrom. In fact the letter was written seven months before the filing of
Plaintiffs action in this case, which is for partition and accounting, is in
this case below, and it appears that it was written in connection with the
the nature of an action quasi in rem. Such an action is essentially for the
negotiations between her and plaintiff, concerning the partition of the
purpose of affecting the defendant's interest in a specific property and
property in question. As is usual in negotiations of this kind, the rem. He should have attached defendants property under Rule 57, Sec. 1
exchange of correspondence was carried on by counsel for the parties. (f)
But the authority given to defendant's husband in these negotiations
certainly cannot be construed as also including an authority to represent Section 1. Grounds upon which attachment may issue. xxx:
her in any litigation.
(f) In an action against a party who does not reside and is not
Escolin: Substituted service could not be made here because an essential found in the Philippines, or on whom summons may be served by
requisite of substituted service could not be complied with, cf Rule 14, publication.(1a)
Sec. 7
to convert the action into quasi in rem, and then serve summons by
Sec. 7. Substituted service. If, for justifiable causes, the publication.
defendant cannot be served within a reasonable time as provided
FACTS Petitioner Citizens' Surety filed its complaint in the Manila CFI,
in the preceding section, service may be effected (a) by leaving
alleging that at request of defendant Santiago Dacanay, the plaintiff
copies of the summons at the defendant's residence with some
Surety Company had issued its Surety Bonds Nos. 4942 and 4944, the
person of suitable age and discretion then residing therein, or (b)
first, in favor of Gregorio Fajardo to guarantee payment of a P5,000-
by leaving the copies at defendant's office or regular place of
promissory note executed by said Dacanay, and the second, in favor of
business with some competent person in charge thereof. (8a)
Manufacturers Bank & Trust Co., to guarantee payment of another
de Leon: I think the essential requisite that Justice Escolin was referring promissory note in like amount; that in consideration of said bonds,
to is that the defendant is a resident of the Philippines. Remember, if a Santiago and Josefina Dacanay executed Indemnity Agreements,
defendant is a non-resident, he may not be summoned through binding themselves jointly and severally to indemnify plaintiff for any
substituted service, only extraterritorial service. losses, costs and expenses which it might sustain in connection with the
issuance of the bonds aforesaid, with interest at 12% per annum; that as
additional security, the Dacanays mortgaged to plaintiff a parcel of land
CITIZEN SURETY V. MELENCIO-HERRERA, 38 in Baguio City, covered by Certificate of Title No. T-8116, the mortgage
SCRA 369 (1971) having been duly recorded; that the promissory notes were not paid .and
as a result, plaintiff Surety was compelled to pay P5,000.00 to Gregorio
Action for deficiency judgment is an action in personam, in which case,
Fajardo and P4,081.69 to the Manufacturers' Bank; that the Dacanays
summons may not be served by publication. The remedy is to attach
failed to reimburse the Surety for such payments, whereupon the Surety
property of the defendant, then serve summons by publication. When
caused the extrajudicial foreclosure of the mortgage to pay its claim of
summons could not be sereved, the remedy is not to dismiss the case but
P12,941.69 representing its payments, interest and stipulated liquidated
retain the case in the courts archives.
damages: that at the foreclosure sale, the land mortgaged was sold to
Escolin: Citizen Surety could not have availed of service by publication plaintiff, as highest bidder, for the sum of P2,000.00 leaving an
under Rule 14, Sec. 14 because this provision applies only to actions in
unsatisfied balance of P10,491.69, that plaintiff sought to recover from respondent Judge should be set aside and the case held pending in the
defendants Dacanay, plus 10% thereof as attorneys' fees, and the costs. court's archives, until petitioner as plaintiff succeeds in determining the
whereabouts of the defendants' person or properties and causes valid
At petitioner's request, respondent Judge caused summons to be made summons to be served personally or by publication as the case may be. In
by publication in the newspaper Philippines Herald. But despite the this manner, the tolling of the period of prescription for as long as the
publication and deposit of a prepaid copy of the complaint at the Manila debtor remains in hiding would properly be a matter of court records and
post office, defendants did not appear within the period of 60 days from he can not emerge after a sufficient lapse of time from the dismissal of
last publication, as required by the summons. the case to profit from his own misdeed and claim prescription of his just
debt.
Plaintiff then asked that defendants be declared in default; but instead,
the Judge, by order of May 16, 1970, asked it to show cause why the WHEREFORE, the order of dismissal of the case issued by the Court
action should not be dismissed, the suit being in personam and below is hereby set aside, and in the interest of justice, the proceedings
defendants not having appeared. Then, on May 29, 1970, respondent are ordered suspended, to be held pending until the plaintiff petitioner
Judge dismissed the case, despite plaintiff Surety's argument that the succeeds in ascertaining the whereabouts of the defendants and/or
summons by publication was sufficient and valid under section 16 of Rule locating properties of the same, to enable proper summons to be issued
14 of the Revised Rules of Court. conformably to this Opinion. No costs.
HELD We agree with respondent Judge that the action of plaintiff
petitioner, being in personam, the Court could not validly acquire
KAWASAKI PORT SERVICES V. AMORES, 199 SCRA
jurisdiction on a non-appearing defendant, absent a personal service of
230 (1991)
summons within the forum. We have explicitly so ruled in Pantaleon vs.
Asuncin, 105 Phil. 765, pointing out without such personal service, any Facts: C.F. Sharp Kabushiki Kaisha is corporation organized under the
judgment on a non-appearing defendant would be violative of due law of Japan. It appears to have incurred obligations to several creditors
process. amongst which are defendants, also foreign corporations organized and
existing under the laws of Japan. It defaulted on its creditors. Thereafter
The proper recourse for a creditor in the same situation as petitioner is to defendants have resorted to demanding payment from C.F. Sharp & Co.,
locate properties, real or personal, of the resident defendant debtor with Inc., a corporation organized and existing under the laws of the
unknown address and cause them to be attached under Rule 57, section Philippines. C.F. Sharp & Co., Inc. filed a complaint for injunction and/or
1(f), in which case, the attachment converts the action into a proceeding declaratory relief. Since the defendants are non-residents, without
in rem or quasi in rem and the summons by publication may then business addresses in the Philippines but in Japan, extraterritorial service
accordingly be deemed valid and effective. of summons was resorted to. Thereafter, defendants filed their special
appearances to question the courts jurisdiction over their persons.
But because debtors who abscond and conceal themselves are also quite
adept at concealing their properties, the dismissal of the case below by
Held: Where the complaint is purely an action for injunction, it is a Section 1. Pleadings defined. Pleadings are the written
personal action as well as an action in personam, not an action in rem or statements of the respective claims and defenses of the parties
quasi in rem. As a personal action, personal or substituted service of submitted to the court for appropriate judgment. (1a)
summons on the defendants, not extraterritorial service, is necessary to
confer jurisdiction on the court. In an action for injunction, extra- Sec. 2. Motions must be in writing. All motions shall be in writing
territorial service of summons and complaint upon the non-resident except those made in open court or in the course of a hearing or trial.
defendants cannot subject them to the processes of the RTCs. Extra- (2a)
territorial service of summons will not confer on the court jurisdiction.
Sec. 3. Contents. A motion shall state the relief sought to be
obtained and the grounds upon which it is based, and if required by
these Rules or necessary to prove facts alleged therein, shall be
DIAL CORPORATION V. SORIANO, 161 SCRA 737
accompanied by supporting affidavits and other papers. (3a)
(1988)
Where the action is purely an action for injunction (e.g. to restrain the Contents of a motion
defendants from enforcing against contracts and to recover damages), it
1. relief sought to be obtained
is clearly a personal action as well as an action in personam, not an action
in rem or quasi in rem. In actions in personam, personal or substituted 2. the grounds upon which it is based
service of summons on the defendants, not extraterritorial service, is
necessary to confer jurisdiction on the court. 3. supporting affidavits and other papers (if required by these Rules or
necessary to prove facts alleged therein)
Sec. 4. Hearing of motion. Except for motions which the court

MOTIONS
may act upon without prejudicing the rights of the adverse party,
every written motion shall be set for hearing by the applicant.
RULE 15 Every written motion required to be heard and the notice of the
hearing thereof shall be served in such a manner as to ensure its
Section 1. Motion defined. A motion is an application for relief
receipt by the other party at least three (3) days before the date of
other than by a pleading. (1a)
hearing, unless the court for good cause sets the hearing on shorter
motion an application for relief other than by a pleading notice. (4a)
A motion is not a pleading! Non-litigous motions need not be set for hearing.
cf Rule 6, Sec. 1 Sec. 5. Notice of hearing. The notice of hearing shall be

addressed to all parties concerned, and shall specify the time and date
of the hearing which must not be later than ten (10) days after the cf Rule 9 Sec. 1
filing of the motion. (5a)
Section 1. Defenses and objections not pleaded. Defenses and
Sec. 6. Proof of service necessary. No written motion set for objections not pleaded either in a motion to dismiss or in the
hearing shall be acted upon by the court without proof of service answer are deemed waived. However, when it appears from the
thereof. (6a) pleadings or the evidence on record that the court has no
jurisdiction over the subject matter, that there is another action
Requisites for a motion not in open court or in the course of a hearing or pending between the same parties for the same cause, or that
trial the action is barred by a prior judgment or by statute of
limitations, the court shall dismiss the claim. (2a)
1. in writing
Sec. 9. Motion for leave. A motion for leave to file a pleading or
2. hearing set by the applicant
motion shall be accompanied by the pleading or motion sought to be
3. notice of hearing which specifies the time and date of the hearing, admitted. (n)
not later than 10 days from filing of the motion (except for motions
Sec. 10. Form. The Rules applicable to pleadings shall apply to
which the court may act upon without prejudicing the rights of the
written motions so far as concerns caption, designation, signature,
adverse party)
and other matters of form. (9a)
4. served to ensure its receipt by the other party at least 3 days before
CASES
the date of hearing, unless the court for good cause sets the hearing
on shorter notice (except for motions which the court may act upon
without prejudicing the rights of the adverse party) CORPUS V. CORPUS, 148 SCRA 21 (1987)
5. proof of service Where a written motion does not state the time and place of the hearing
or is not served upon all the parties concerned at least 3 days in advance,
Sec. 7. Motion day. Except for motions requiring immediate the motion is nothing but a useless piece of paper. No motion shall be
action, all motions shall be scheduled for hearing on Friday acted upon by the court without proof of such notice of hearing.
afternoons, or if Friday is a non-working day, in the afternoon of the
next working day. (7a) FACTS Leona and Iladia Corpus, claiming to be the legal heirs of the late
spouses Domingo Corpus and Clara Sibayan, filed an action against the
Sec. 8. Omnibus motion. Subject to the provisions of section 1 of spouses Jacinta Corpus and Pedro Aduca, in the Pangasinan CFI for the
Rule 9, a motion attacking a pleading, order, judgment, or proceeding recovery of possession, with damages, of a parcel of land, situated in
shall include all objections then available, and all objections not so Barrio Pinmaludpud, Urdaneta, Pangasinan, and registered in the name
included shall be deemed waived. (8a) of "Heirs of Domingo Corpus".
After several postponements at the behest of both parties, the CFI set adverse parties by sending a copy of his motion for postponement to
the pre-trial conference on 28 August 1967. On 15 August 1967, however, counsel for the plaintiffs by registered mail on 15 August 1967; and that
counsel for the defendants filed a motion for the postponement of the his non-appearance at the pre-trial conference on 28 August 1967 was
pre-trial conference set for 28 August 1967 claiming that he had to justified as he had to attend on the same date another hearing in the
appear before the Nueva Ecija CFI on the same date in connection with Nueva Ecija CFI.
Civil Case No. SD-206 of said court. A copy of the Order issued in Civil
Case No. SD-206 of the Nueva Ecija CFI was appended to the motion. Counsel for the defendants further claimed that Domingo Corpus died on
15 April 1956, and not in 1948, as claimed by the plaintiffs, so that the
When the motion for postponement was heard on 28 August 1967, defendant Jacinta Corpus, although a spurious child of Domingo Corpus,
counsel for the plaintiffs interposed opposition thereto, claiming that he is entitled to a share in the estate of said Domingo Corpus. A copy of the
was not furnished with a copy of said motion for postponement. CFI death certificate of Domingo Corpus, attested to by the Local Civil
denied the motion for postponement and allowed the plaintiffs to Registrar of Muoz, Nueva Ecija where the said Domingo Corpus died,
present their evidence ex-parte before the clerk of court who was was attached to the motion.
commissioned to receive the same.
CFI denied the motion for new trial on the grounds that the Order issued
A copy of the trial court's Order dated 28 August 1967 denying on 28 August 1967, copy of which was received by counsel for the
defendants' motion for postponement and allowing the plaintiffs to defendants on 12 September 1967, had already become final when the
adduce evidence ex-parte was received by defendants on 12 September defendants filed their motion for new trial on 1 July 1968; and that the
1967. 7 Defendants took no step to have said Order reconsidered and set alleged misrepresentation by the plaintiffs of the true date of the death
aside. of Domingo Corpus is not a ground for new trial.
CFI ruled against the defendants and ordered them to vacate the Whereupon, the defendants interposed the present appeal. They claim
property. Counsel for the defendants received a copy of the decision on 7 that the lower court erred: (1) in denying their motion for postponement
June 1968, and on 1 July 1968, he filed a motion for new trial, praying and in allowing the plaintiffs to present their evidence ex-parte; and (2) in
that: (1) a new trial be held on the ground that the failure of the denying their motion for new trial.
defendants and their counsel to be present at the pre-trial conference set
for 28 August 1967 was due to mistake or excusable negligence; (2) the HELD We find no merit in the appeal. To begin with, we see nothing
decision dated 1 April 1968 be set aside and the defendants be allowed to abusive or irregular in the actions taken by the lower court in denying the
cross-examine the witnesses for the plaintiffs and to present evidence on defendants-appellants' motion for postponement of the pre-trial
their behalf; and (3) the defendants be awarded such other reliefs and conference set for 28 August 1967, and their motion for new trial. A close
remedies as are just and equitable under the premises. examination of the record shows that said motion for postponement
does not show that a copy thereof had been served upon the adverse
In support of his motion for new trial, counsel for the defendants party as there is no proof of service thereof. In fact, the movants did not
contended that he complied with the requirement regarding notice to indicate therein the manner by which a copy of the motion was served
upon counsel for the plaintiffs-appellees. Counsel for the defendants- Besides, it appears that it was defendants-appellants' counsel who had to
appellants merely stated therein: "Copy furnished Atty. Federico R. be in Cabanatuan City on the date of hearing so that the defendants-
Vinluan, San Nicolas, Pangasinan." In the motion for new trial, counsel appellants themselves could have appeared in Court on the date set for
for the defendants-appellants claimed that he sent to plaintiffs- the hearing since their presence at the pre-trial conference was also
appellees' counsel a copy of the motion for postponement by registered required. But, as it stands, both defendants-appellants and their counsel
mail. The motion for postponement, however, does not contain an failed to appear at the pre-trial conference. It is a well-settled rule that
affidavit of the person who mailed the motion, showing compliance with the grant or denial of a motion for postponement is discretionary on the
the provisions of Section 5, Rule 11 of the Rules of Court, and the registry court. The defendants-appellants, as well as their counsel, should not
receipt issued by the mailing office, as required by Section 10 of the same have presumed that the motion for the deferment of the pretrial
Rule. conference would be granted. They had no right to rely on the liberality
of the court or on the generosity of the adverse party.
Neither does the motion for postponement adverted to state the time
and place for the hearing of the same, as required by the Rules of Court. Defendants-appellants should also have taken upon themselves the duty
In the said motion for postponement, counsel of the defendants- to inquire as to what action the court took on their motion for the
appellants addressed the Clerk of the Court of First Instance of postponement of the pre-trial conference. In this, they failed.
Pangasinan, Urdaneta Branch, thus: "Upon receipt of the foregoing
motion please submit the same to the Honorable Court for its WHEREFORE, the judgment appealed from should be, as it is hereby,
consideration." AFFIRMED, without pronouncement as to costs.
And yet, the provisions of the Rules of Court requiring that a motion shall
state the time and place of the hearing of the same are quite clear. YAP V. CA, 115 SCRA 105 (1982)
Sections 4 and 5, rule 15 of the rules of Court expressly provide that a A motion for extension to file Record on Appeal, does not affect the
motion shall state the time and place of the hearing and shall be served substantive rights of the adverse party, and may be heard ex-parte,
upon all the parties concerned at least three (3) days in advance. And, without proof of notice of hearing to the adverse party.
according to Section 6 of the same Rules no motion shall be acted upon
by the court without proof of such notice, and it has been held that, in FACTS Private respondents, spouses Raymond and Lydia Tomassi, filed
such a case, the motion is nothing but a useless piece of paper. The a complaint for Damages against petitioner Manuel Yap, before the Cebu
reason is obvious: unless the movant sets the time and place of hearing, CFI. Petitioner-defendant filed his Answer with Special Defenses and
the court would have no way of determining whether the adverse party Counterclaim, after which, trial ensued.
agrees or objects to the motion, and if he objects, to hear him on his
objection, since the Rules do not fix any period within which he may file CFI rendered judgment against petitioner. Copy of the Decision was
his reply or opposition thereto. received by petitioner-defendant on February 10, 1978. He filed, on
March 2, 1978, a Notice of Appeal, and on March 7, 1978, a Cash Appeal
Bond and Motion for Extension of twenty days from March 13, 1978 (or ISSUE The only issue is whether the said Motion for extension should
until April 2, 1978) within which to file his Record on Appeal. mandatorily comply with the requirements of the Rules on Motions
before the same may be acted upon by the trial Court. Sections 4, 5 and 6
Said Motion was not acted upon by the Trial Court. On March 30, 1978, or of Rule 15 provide:
within the extended period prayed for, petitioner submitted his Record
on Appeal. On the same date, respondents filed a Motion for the "Section 4. Notice. - Notice of a motion shall be served by the applicant
Issuance of Writ of Execution alleging that the Decision had already to all parties concerned at least three days before the hearing thereof,
become final and executory as petitioner's Motion for extension of time together with a copy of the motion, and other papers accompanying it.
to file Record on Appeal failed to comply with the requirements of the The Court, however, for good cause may hear a motion on shorter notice,
Rules of Court on Motions, and therefore, did not toll the running of the specially on matters which the Court may dispose of on its own motion.
period to perfect an appeal.
"Section 5. Contents of Notice. - The notice shall be directed to the
CFI disapproved petitioner's Record on Appeal, stating: parties concerned, and shall state the time and place for the hearing of
the motion.
"The records show that on March 7, 1978, defendant filed a MOTION FOR
EXTENSION OF TIME TO FILE RECORD ON APPEAL, but since said "Section 6. Proof of service to be filed with motion. - No motion shall be
motion did not contain any notice of hearing, the COURT did not act on acted upon by the court, without proof of service of the notice hereof,
it. The reglementary period expired on March 13, 1978, without any except when the court is satisfied that the rights of the adverse party or
extension granted to defendant. It is rather, too presumptuous, on the parties are not affected."
part of the defendant to assume that the Court would grant the
extension just because he prayed for it. HELD As a general rule, notice of motion is required where a party has a
right to resist the relief sought by the motion and principles of natural
IN VIEW OF THE FOREGOING, the approval of defendant's RECORD ON justice demand that his right be not affected without an opportunity to
APPEAL is hereby denied for having been filed out of time." be heard. The three-day-notice required by law is intended not for the
benefit of the movant but to avoid surprises upon the adverse party and
Petitioner moved to reconsider the said Order, but reconsideration was to give the latter time to study and meet the arguments of the motion.
denied by the Trial Court. Petitioner then filed with the Court of Appeals
a Petition for "Certiorari and Mandamus" praying that the CFI be ordered The Motion in question does not affect the substantive rights of private
to approve his Record on Appeal and give due course thereto. respondents as it merely seeks to extend the period to file the Record on
Appeal, which extension may be granted by the Trial Court upon
CA dismissed the Petition ruling that the Trial Court did not commit application made prior to the expiration of the original period. Neither
grave abuse of discretion in disapproving the Record on Appeal as the was there any claim that said Motion, which was grounded on justifiable
same was filed beyond the prescribed period. MfR was denied for lack of reason, was interposed to delay the appeal. As early as Moya vs. Barton,
merit. 76 Phil. 831 [1946], this Court held that a Motion requesting an extension
within which to file Record on Appeal may be considered as one which FACTS Petitioner Igmedio Azajar filed a complaint against respondent
may be heard ex-parte. In Que Tiac vs. Republic, 43 SCRA 56 [1972], it Cham Samco and Sons, Inc. in the Camarines Sur CFI. Azajar purchased
was similarly held that a telegraphic Motion for extension of time to file a from defendant Cham Samco, thru the latter's agent, 100 Kegs of nails of
Record on Appeal is addressed to the discretion of the Court, which may various sizes, specified in one of Cham Samco's printed order forms, and
act thereon ex-parte. And in the more recent case of Commercial Union had given to the agent P18,000.00 in full payment thereof; but in breach
Assurance Company Limited vs. Lepanto Consolidated Mining Company, of contract, Cham Samco had offered to deliver only a part of the
86 SCRA 79, 98 [1978], this Court ruled that the Trial Court has the power quantity ordered.
and authority to act on an ex-parte Motion for extension of time to file
the Record on Appeal, which was filed within the original period Cham Samco filed a MtD on two grounds: (1) failure of the complaint to
prescribed by the Rules since the said Motion did not appear to be a state a cause of action ---- the complaint's language indicating not a
litigated or a contentious Motion and may be acted upon even without perfected sale but merely an "offer to buy by plaintiff that was partly
proof of service on adverse party. accepted by defendant," and failing to show that as explicitly required by
the order form, prices had been confirmed by Cham Samco's "Manila
Accordingly, we find for petitioner. Dismissal of appeals on purely Office," and (2) that venue was improperly laid ---- Cham Samco's
technical grounds is frowned upon as the policy of the Court is to invariable condition in transactions of this nature, as Azajar well knew
encourage the hearing of appeals on the merits. Litigants should be from many such transactions in the past, being that "any legal action
afforded every opportunity to establish the merits of their cases without thereon must be instituted in the City of Manila."
the constraints of technicalities.
MtD contained a notice addressed to the Clerk of Court reading as
WHEREFORE, the Petition is granted. The questioned Decision and follows:
Resolution of respondent Court of Appeals dated May 22, 1979 and July
26, 1979, respectively, are hereby annulled and set aside. The Court of The Clerk of Court
First Instance of Cebu, Branch XIII, is hereby directed to approve
petitioner's Record on Appeal and to elevate the same to the Court of
Appeals. Court of First Instance of Camarines Sur
Naga City
AZAJAR V. CA, 145 SCRA 333 (1986)
A MTD should be set for hearing with notice to the other party. A notice
in the MTD which was addressed to the clerk of court asking him to S i r:
submit the motion for the consideration of the court is fatally defective.
Please submit the foregoing motion to the Court for its consideration declaring it in default and then rendering judgment by default. CA
and resolution immediately upon receipt thereof. dismissed the petition was dismissed for lack of merit by the Court of
Appeals on November 20, 1974.
Makati, Rizal for Naga City, February 4, 1974
But on MfR, CA reversed itself. By Resolution dated March 25, 1975, 10 it
set aside the Trial Court's order of default of February 22, 1974, judgment
by default of March 13, 1974, and Order dated June 4, 1974 denying
(SGD) POLO S. PANTALEON
Cham Samco's motion for new trial, and directed the lower Court to
Copy furnished: allow Cham Samco to file its answer to the complaint and upon due
joinder of issues, to try and decide the case on the merits.
Atty. Augusto A. Pardalias

The Court held that:
Naga City
NF-927
" . . . (t)he notice in the motion which was addressed to the clerk of court
It is this notice that has given rise to the controversy at bar. asking him to submit the motion for the consideration of the court is a
substantial compliance with the provision of section 3 Rule 16 of the
Contending that such a notice was fatally defective and rendered the
Rules of Court. Verily under the said rule, the Court has the alternative of
MtD incapable of tolling the period to answer, Azajar filed a motion to
either hearing the case or deferring the hearing and determination
declare Cham Samco in default, which the CFI granted. CFI pronounced
thereof until the trial on the merits. Thus upon the filing of said motion
Cham Samco in default and allowed Azajar to present evidence ex-parte.
the court should have set the motion for hearing or outrightly deny the
CFI rendered judgment by default against defendant Cham Samco.
motion, or otherwise postpone the hearing until the trial on the ground
Cham Samco filed MfNT. It contended that its failure to observe the
that the grounds thereof do not appear to be indubitable. The prompt
rules governing notice of motions was due to excusable negligence,
filing and apparently valid grounds invoked in the motion are not the acts
"because the grounds alleged in the MtD were all in such nature and
and declarations of a defaulting party."
character that addressed themselves to a motu proprio resolution by the
court and thus rendered a hearing dispensable." It also alleged certain
defenses available to it which if duly alleged and proven, would absolve it
from all liability. This motion was denied. " . . . (E)ven assuming that the declaration of default of the petitioner was
in order we find that the trial court committed a grave abuse of discretion
Cham Samco went to the CA on certiorari asserting that the CFI acted when it denied the motion for new trial that was filed by the petitioner
with grave abuse of discretion amounting to lack of jurisdiction in
not only on the ground of excusable negligence we have above discussed motion. The uniform holding of this Court has been that a failure to
but also on the ground that it has a meritorious defense." and comply with the requirement is a fatal flaw. Such notice is required to
avoid surprises upon the opposite party and give the latter time to study
and meet the arguments of the motion, as well as to determine or make
determinable the time of submission of the motion for resolution.
" . . . (E)xcessive damages have been awarded to the private respondent.
In addition to ordering the petitioner to deliver to the private respondent
the nails ordered by the latter, the petitioner was also ordered to pay not
only P15,000 actual damages for profits that the private respondent Cham Samco quite frankly admits its error. It pleads however that under
could have earned but also consequential damages of P10,000 for the the circumstances the error be not regarded as irremediable or that it be
unrealized profits that the said earnings and capital of the plaintiff could deemed as constituting excusable negligence, warranting relief. It argues
have earned, plus interest in both instances, exemplary damages of that legal and logical considerations, which it took to be tenable, caused
P5,000 and P7,500 for attorney's fees and related expenses of litigation. it to theorize that a hearing on the motion was dispensable. It also
Thus for the capital of respondent of P18,100.00 in the purchase of the adverts to its possession of affirmative defenses in addition to those set
nails, the petitioner was ordered to pay damages of a total of P37,500.00, out in its motion to dismiss which, if ventilated and established at the
which including the interest awarded can amount to over P40,000, more trial, would absolve it from all liability under the complaint.
than double the value of the said investment of respondent. Under
Section 1, Rule 37 of the Rules of Court award of excessive damages
could be a ground for new trial."
Cham Samco's belief that it was not necessary that its motion to dismiss
be set for hearing was avowedly engendered by two factors, namely:
The Court concluded its opinion with the observation that "the ends of
justice would be better served in this case if we brush aside technicality
1) the fact that while the Rules of Court "specify the motions which can
and afford the petitioner its day in court."
be heard only with prior service upon adverse parties," 15 said Rules "do
not point out which written motions may be ex parte, preferring, it
appears, to leave to the court, in motions other than those specified, the
It was wrong, of course, for Cham Samco to have failed to set its motion discretion either to ex parte resolve . . . or to call the parties to a hearing .
to dismiss for hearing on a specified date and time. The law explicitly . . ; and
requires that notice of a motion shall be served by the appellant to all
parties concerned at least three (3) days before the hearing thereof,
together with a copy of the motion, and of any affidavits and other
2) the further fact that its motion to dismiss was based on two grounds
papers accompanying it; and that the notice shall be directed to the
on which a hearing was superfluous, the first, failure of the complaint to
parties concerned, stating the time and place for the hearing of the
state a cause of action, being determinable exclusively from the WHEREFORE, the Resolutions of the Court of Appeals appealed from,
allegations of the complaint and no evidence being allowable thereon; are affirmed. Costs against petitioner.
and the second, that venue is improperly laid, being resolvable
exclusively on the basis of documents annexed to the motion.
BPI V. FAR EAST MOLASSES, 198 SCRA 689 (1991)
FACTS petitioner bank filed with Rizal CFI a complaint for recovery of
These considerations, to be sure, did not erase movant's duty to give sum of money against respondent. CFI ruled in favor of BPI. Far East
notice to the adverse party of the date and time of the hearing on its received a copy of the Decision on 07jul (it had until 22jul within which to
motion, the purpose of said notice being, as already stressed, not only to appeal). Instead of filing a notice of appeal, Far East filed in the morning
give the latter time to oppose the motion if so minded, but also to of 22jul a MfR. The motion did not contain any notice of hearing.
determine the time of its submission for resolution. Without such notice,
HELD A MfR without notice of hearing is a mere scrap of paper. It
the occasion would not arise to determine with reasonable certitude
presents no question which merits the attention and consideration of the
whether and within what time the adverse party would respond to the
court. It is not even a motion for it does not comply with the rules and
motion, and when the motion might already be resolved by the Court.
hence, the clerk has no right to receive it. Without such notice, the
The duty to give that notice is imposed on the movant, not on the Court.
motion is pro forma. A pro forma motion for reconsideration does not
suspend the running of the period to appeal. Furthermore, the notice of
hearing shall be directed to the parties concerned, not to the clerk of
Withal, the reasons for Cham Samco's erroneous notion of the court.
dispensability of a hearing on its motion to dismiss are not utterly
without plausibility. This circumstance, taken together with the fact,
found by the Intermediate Appellate Court and not disputed by MOYA V. BARTON, 76 PHIL 831 (1946)
petitioner Azajar, that Cham Samco has meritorious defenses which if
If the extension of time asked for in the motion may be shorter than the
proven would defeat Azajar's claim against it, and the eminent
time required to have the motion set for hearing and acted by the court,
desirability more than once stressed by this Court that cases should be
the motion for extension may be considered as one which may be heard
determined on the merits after full opportunity to all parties for
ex-parte, without need of notice of hearing. Besides, the court has
ventilation of their causes and defenses, rather than on technicality or
discretion to extend the period for filing the record on appeal.
some procedural imperfections, all conduce to concurrence with the
Court of Appeals that "the ends of justice would be better served in this
case if we brush aside technicality and afford the petitioner its day in
DISMISSAL
court."
MOTION TO DISMISS A MTD may be filed against any pleading asserting a claim, not only to a
complaint, but also to a counterclaim, cross-claim, 3rd party complaint
RULE 16 etc..
Section 1. Grounds. Within the time for but before filing the Grounds for a MTD
answer to the complaint or pleading asserting a claim, a motion to
dismiss may be made on any of the following grounds: 1. no jurisdiction over the person of the defending party
(a) That the court has no jurisdiction over the person of the 2. no jurisdiction over the subject matter of the claim;
defending party;
3. venue is improperly laid
(b) That the court has no jurisdiction over the subject matter of
the claim; 4. plaintiff has no legal capacity to sue
(c) That venue is improperly laid; 5. another action pending between the same parties for the same cause
(d) That the plaintiff has no legal capacity to sue; 6. barred by a prior judgment
(e) That there is another action pending between the same parties 7. barred by the statute of limitations
for the same cause; 8. the pleading asserting the claim states no cause of action
(f) That the cause of action is barred by a prior judgment or by the 9. the claim or demand has been paid, waived, abandoned, or
statute of limitations; otherwise extinguished
(g) That the pleading asserting the claim states no cause of action; 10. claim is unenforceable under the statute of frauds
(h) That the claim or demand set forth in the plaintiff's pleading 11. non-compliance with a condition precedent for filing the claim
has been paid, waived, abandoned, or otherwise extinguished;
Sec. 2. Hearing of motion. At the hearing of the motion, the
(i) That the claim on which the action is founded is unenforceable parties shall submit their arguments on the questions of law and their
under the provisions of the statute of frauds; and evidence on the questions of fact involved except those not available
(j) That a condition precedent for filing the claim has not been at that time. Should the case go to trial, the evidence presented
complied with. (1a) during the hearing shall automatically be part of the evidence of the
party presenting the same. (n)
Evidence presented at the hearing of the MTD are automatically part of days from service of the amended pleading to answer, unless the court
the evidence of the offeror at the trial. provides a longer period.
Sec. 3. Resolution of motion. After the hearing, the court may de Leon: if a defendant files an answer with counterclaim, an MTD by the
dismiss the action or claim, deny the motion, or order the defendant to the counterclaim undoubtedly tolls the period to answer
amendment of the pleading. the counterclaim, but does it also toll the period to file a reply? I dont
think so. The responses to the answer and the counterclaim are separate.
The court shall not defer the resolution of the motion for the
reason that the ground relied upon is not indubitable. Sec. 5. Effect of dismissal. Subject to the right of appeal, an
order granting a motion to dismiss based on paragraphs (f), (h) and (i)
In every case, the resolution shall state clearly and distinctly the of section 1 hereof shall bar the refiling of the same action or claim.
reasons therefor. (3a) (n)
Options of the court after hearing but not to defer the resolution of the Grounds for dismissal that bar refilling
motion for the reason that the ground relied upon is not indubitable
1. cause of action is barred by a prior judgment
1. dismiss the action or claim
2. cause of action is barred by the statute of limitations
2. deny the MTD
3. claim or demand set forth in the plaintiff's pleading has been paid,
3. order amendment of the pleading waived, abandoned, or otherwise extinguished
Sec. 4. Time to plead. If the motion is denied, the movant shall 4. claim is unenforceable under the statute of frauds
file his answer within the balance of the period prescribed by Rule 11
to which he was entitled at the time of serving his motion, but not cf Rule 9 Sec. 1
less than five (5) days in any event, computed from his receipt of the
notice of the denial. If the pleading is ordered to be amended, he shall Section 1. Defenses and objections not pleaded. Defenses and
file his answer within the period prescribed by Rule 11 counted from objections not pleaded either in a motion to dismiss or in the
service of the amended pleading, unless the court provides a longer answer are deemed waived. However, when it appears from the
period. (4a) pleadings or the evidence on record that the court has no
jurisdiction over the subject matter, that there is another action
MTD tolls the period to file an answer. If denied, the movant as the pending between the same parties for the same cause, or that
remaining period from receipt of notice of denial to file his answer, but the action is barred by a prior judgment or by statute of
not less than 5 days in any case. If the pleading is amended, he has 15 limitations, the court shall dismiss the claim. (2a)
Grounds to dismiss that the court may invoke motu proprio

1. the action is barred by a prior judgment RAMOS V. PERALTA, 203 SCRA 412 (1991)
2. the action is barred by statute of limitations A case for quieting of title filed by the owner against the lessee is a bar to
a case filed by the lessee to compel the owner to accept rental payments.
3. no jurisdiction over the subject matter Both cases involve the issue of whether the lease should be respected.
For litis pendentia to be invoked as a ground for the dismissal of an
4. there is another action pending between the same parties for the action, the concurrence of the following requisites is necessary:
same cause
1. Identity of parties or at least such as represent the same interest in
Sec. 6. Pleading grounds as affirmative defenses. If no motion to both actions;
dismiss has been filed, any of the grounds for dismissal provided for in
this Rule may be pleaded as an affirmative defense in the answer and, 2. Identity of rights asserted and relief prayed for, the relief being
in the discretion of the court, a preliminary hearing may be had founded on the same facts; and
thereon as if a motion to dismiss had been filed. (5a)
3. The identity in the two cases should be such that the judgment that
The dismissal of the complaint under this section shall be without may be rendered in one would, regardless of which party is
prejudice to the prosecution in the same or separate action of a successful, amount to res judicata in the other.
counterclaim pleaded in the answer. (n)
Escolin: The issue of which case was filed 1st is not relevant in
Any of the grounds for dismissal may be pleaded as an affirmative determining which case to dismiss. The case with the broader scope is
defense in the answer. The court may conduct a preliminary hearing as if the one that must remain.
an MTD had been filed.
If a complaint is dismissed not based on an MTD, but on an affirmative LEE BUN TING V. ALIGAEN, 76 SCRA 416 (1977) L-
defense pleaded in the answer, a counterclaim pleaded in the answer 30523 APR22
may be prosecuted in the same or a separate action.
Contrary doctrine handed down in a subsequent case is not ground to
de Leon: I recall Justice Relova made a distinction between permissive reopen a final and executory case. The doctrine of res judicata applies
and compulsory counterclaims on this point. He said if the counterclaim where, between a pending action and one which has been finally and
is compulsory, the counterclaim is also dismissed with the complaint. If definitely settled, there is identity of parties, subject matter and cause of
the counterclaim is permissive, the counterclaim survives the dismissal. action.
In effect, he said that the 2nd par of Sec. 6 applies only to a permissive
Escolin: Law of the case is a specie of res adjudicata.
counterclaim.
CASES
PNB V. HIPOLITO, 13 SCRA 20 (1965)
Where the complaint does not show that the claim has prescribed (e.g. it upon the merits when filed by a plaintiff who has once dismissed in a
alleges offer of payment which works as a renewal of the obligation), competent court an action based on or including the same claim. (1a)
MTD on prescription should be denied. Denial of the offer of payment is
improper because in a MTD, the defendant hypothetically admits the Sec. 4. Dismissal of counterclaim, cross-claim, or third-party
truth of the allegations of fact contained in the complaint. Such denial complaint. The provisions of this Rule shall apply to the dismissal of
should be raised in the answer, not a MTD. any counterclaim, cross-claim, or third-party complaint. A voluntary
dismissal by the claimant by notice as in section 1 of this Rule, shall be
de Leon: Note that the rule now is that the court can not defer ruling on a made before a responsive pleading or a motion for summary
MTD, but must either grant, deny or order amendment of the complaint judgment is served or, if there is none, before the introduction of
(Rule 16, Sec. 3). evidence at the trial or hearing. (4a)
Procedure in dismissing upon notice by claimant

CONTINENTAL CEMENT CORPORATION V. CA,
1. When
184 SCRA 728 (1990)
A MTD may be filed within the period to file a responsive pleading. An a. In case of original claims any time before service of
extension of time to file an answer is also an extension of time to file an
1) responsive pleading or
MTD. A MTD tolls the period in which to file an answer.
2) motion for summary judgment
de Leon: Under the new rules of civil procedure, after a MTD is denied, a
defendant only has the remainder of the period in order to file an answer b. In case of non-original claims any time
(Rule 16, Sec. 4).
1) before service of
DISMISSAL OF ACTIONS a) responsive pleading, or
RULE 17 b) motion for summary judgment
Section 1. Dismissal upon notice by plaintiff. A complaint may 2) where ther is none, before introduction of evidence
be dismissed by the plaintiff by filing a notice of dismissal at any time at the trial or hearing
before service of the answer or of a motion for summary judgment.
2. claimant files a notice of dismissal
Upon such notice being filed, the court shall issue an order confirming
the dismissal. Unless otherwise stated in the notice, the dismissal is 3. the court shall issue an order confirming the dismissal
without prejudice, except that a notice operates as an adjudication
4. the dismissal is without prejudice, unless
a. otherwise stated in the notice 4. dismissal shall be without prejudice, unless otherwise specified in the
order
b. claimant has once dismissed in a competent court an action
based on or including the same claim 5. counterclaims pleaded before service of motion to dismiss survive,
either
Sec. 2. Dismissal upon motion of plaintiff. Except as provided in
the preceding section, a complaint shall not be dismissed at the a. resolved in the same action counterclaimant must manifest
plaintiff's instance save upon approval of the court and upon such such preference within 15 days from notice of the motion to
terms and conditions as the court deems proper. If a counterclaim has dismiss
been pleaded by a defendant prior to the service upon him of the
plaintiff's motion for dismissal, the dismissal shall be limited to the b. prosecuted in a separate action
complaint. The dismissal shall be without prejudice to the right of the
A class suit shall not be dismissed or compromised without the approval
defendant to prosecute his counterclaim in a separate action unless
of the court.
within fifteen (15) days from notice of the motion he manifests his
preference to have his counterclaim resolved in the same action. Sec. 3. Dismissal due to fault of plaintiff. If, for no justifiable
Unless otherwise specified in the order, a dismissal under this cause, the plaintiff fails to appear on the date of the presentation of
paragraph shall be without prejudice. A class suit shall not be his evidence in chief on the complaint, or to prosecute his action for
dismissed or compromised without the approval of the court. (2a) an unreasonable length of time, or to comply with these Rules or any
order of the court, the complaint may be dismissed upon motion of
cf Rule 16, Sec. 6
the defendant or upon the court's own motion, without prejudice to
Sec. 6. Pleading grounds as affirmative defenses. xxx the right of the defendant to prosecute his counterclaim in the same
or in a separate action. This dismissal shall have the effect of an
The dismissal of the complaint under this section shall be without adjudication upon the merits, unless otherwise declared by the court.
prejudice to the prosecution in the same or separate action of a (3a)
counterclaim pleaded in the answer. (n)
Grounds for Dismissal due to fault of the claimant If, for no justifiable
Procedure in dismissing upon motion by the claimant cause, the claimant fails to
1. after service of the answer or of a motion for summary judgment 1. appear on the date of the presentation of his evidence in chief on the
claim
2. claimant moves to dismiss
2. prosecute his action for an unreasonable length of time
3. approval of the court and upon such terms and conditions as the
court deems proper 3. comply with these Rules or any order of the court
Procedure for dismissal due to fault of claimant After the prosecution had rested its case, the case may not be dismissed
for failure to prosecute.
1. claimant commits the grounds for dismissal
2. court dismisses the complaint motu proprio, or upon the defendants

MINA V. PACSON, 8 SCRA 775 (1963)
motion
Dismissal of a complaint on the ground that plaintiff refused to obey a
3. dismissal is with prejudice, unless otherwise declared by the court. court order to implead an indispensable party is a dismissal due to fault
of the plaintiff (failure to comply with an order of the court). Such
Counterclaims survive in the same or in a separate action.
dismissal is valid and with prejudice. It is res judicata to a 2nd complaint.
Dismissal by
1. notice without prejudice CASENAS V. ROSALES, 19 SCRA 462 (1967)

For a valid dismissal due to failure to comply with a court order, the court
2. motion without prejudice
order must be itself valid. Court order requiring amendment of complaint
3. fault with prejudice to implead the heirs of a deceased defendant, instead of ordering
substitution by the decedents representative, is an invalid order.
Sec. 4. Dismissal of counterclaim, cross-claim, or third-party Dismissal on the ground of refusal to obey such an order is void.
complaint. xxx (moved to before Sec. 1)
In Mina, the court ordered the amendment of the complaint to implead
CASES an indispensable party. The order was proper, hence failure to comply
was a valid ground for dismissal of the complaint. The dismissal due to
fault of plaintiff being valid, it was res judicata to a 2nd complaint. In
GO V. CRUZ, 172 SCRA 247 (1989)
Casenas, the court ordered the amendment of the complaint to implead
A plaintiff has the right to cause dismissal of his action by mere notice the heirs of a deceased party. The order was improper because the
before an answer is served on him, even if an answer had already been proper procedure was to substitute. Hence failure to comply was not a
filed in court. valid ground for dismissal of the complaint. There was no valid dismissal
due to fault of plaintiff, and therefore no res judicata.
de Leon: Note that service of a motion for summary judgment also
precludes right to dismiss by notice.
REPUBLIC PLANTERS BANK V. MOLINA, 166 SCRA
39 (1988)
JALOVER V. YTORIAGA, 80 SCRA 100 (1977)
Res judicata requires not only jurisdiction over subject matter, but also (g) The propriety of rendering judgment on the pleadings, or
jurisdiction over the parties. Where the court in the first case never summary judgment, or of dismissing the action should a valid ground
acquired jurisdiction over a defendant, but the case was dismissed on therefor be found to exist;
ground of failure to prosecute, such is not a bar to a 2nd case.
(h) The advisability or necessity of suspending the proceedings;
and
PRE-TRIAL (i) Such other matters as may aid in the prompt disposition of the
action. (1a, R20)
RULE 18 In civil cases, pre-trial is now mandatory.
Section 1. When conducted. After the last pleading has been Things to consider in a pre-trial
served and filed, it shall be the duty of the plaintiff to promptly move
ex parte that the case be set for pre-trial. (5a, R20) 1. possibility of an amicable settlement or of a submission to alternative
modes of dispute resolution
It is now the plaintiff who moves ex parte that the case be set for pre-
trial. 2. simplification of the issues
Sec. 2. Nature and purpose. The pre-trial is mandatory. The 3. necessity or desirability of amendments to the pleadings
court shall consider: 4. possibility of obtaining stipulations or admissions of facts and of
(a) The possibility of an amicable settlement or of a submission to documents to avoid unnecessary proof
alternative modes of dispute resolution; 5. limitation of the number of witnesses
(b) The simplification of the issues; 6. advisability of a preliminary reference of issues to a commissioner
(c) The necessity or desirability of amendments to the pleadings; 7. propriety of rendering judgment on the pleadings, or summary
(d) The possibility of obtaining stipulations or admissions of facts judgment, or of dismissing the action should a valid ground therefor
and of documents to avoid unnecessary proof; be found to exist
(e) The limitation of the number of witnesses; 8. advisability or necessity of suspending the proceedings; and
(f) The advisability of a preliminary reference of issues to a 9. other matters as may aid in the prompt disposition of the action
commissioner;
Sec. 3. Notice of pre-trial. The notice of pre-trial shall be served Effect of failure to appear or failure to file pre-trial brief by the
on counsel, or on the party who has no counsel. The counsel served
with such notice is charged with the duty of notifying the party 1. plaintiff dismissal of his complaint with prejudice, unless otherwise
represented by him. (n) ordered by the court.
Sec. 4. Appearance of parties. It shall be the duty of the parties 2. defendant cause to allow the plaintiff to present his evidence ex
and their counsel to appear at the pre-trial. The non-appearance of a parte and the court to render judgment on the basis thereof
party may be excused only if a valid cause is shown therefor or if a
Note failure of the defendant to appear at the pre-trial authorizes the
representative shall appear in his behalf fully authorized in writing to
court to render judgment as warranted by the evidence presented. It is
enter into an amicable settlement, to submit to alternative modes of
not limited by what is alleged in the pleadings, like in case where a
dispute resolution, and to enter into stipulations or admissions of
defendant has been declared in default.
facts and of documents. (n)
Sec. 6. Pre-trial brief. The parties shall file with the court and
Note that both the parties and their counsel are required to appear at the
serve on the adverse party, in such manner as shall ensure their
pre-trial.
receipt thereof at least three (3) days before the date of the pre-trial,
Grounds for excused absence of a party at the pre-trial their respective pre-trial briefs which shall contain, among others:
1. valid cause is shown, or (a) A statement of their willingness to enter into amicable
settlement or alternative modes of dispute resolution, indicating the
2. a representative appears in his behalf fully authorized in writing to desired terms thereof;
a. enter into an amicable settlement (b) A summary of admitted facts and proposed stipulation of
facts;
b. submit to alternative modes of dispute resolution, and
(c) The issues to be tried or resolved;
c. enter into stipulations or admissions of facts and of documents
(d) The documents or exhibits to be presented, stating the
Sec. 5. Effect of failure to appear. The failure of the plaintiff to purpose thereof;
appear when so required pursuant to the next preceding section shall
be cause for dismissal of the action. The dismissal shall be with (e) A manifestation of their having availed or their intention to
prejudice, unless otherwise ordered by the court. A similar failure on avail themselves of discovery procedures or referral to
the part of the defendant shall be cause to allow the plaintiff to commissioners; and
present his evidence ex parte and the court to render judgment on the
basis thereof. (2a, R20) (f) The number and names of the witnesses, and the substance of
their respective testimonies.
Failure to file the pre-trial brief shall have the same effect as 2. notice of pre-trial shall be served on counsel, or on the party who has
failure to appear at the pre-trial. (n) no counsel
Some contents of the pre-trial brief 3. parties shall file with the court and serve on the adverse party in such
manner as shall ensure their receipt thereof at least 3 days before the
1. statement of their willingness to enter into amicable settlement or date of the pre-trial, their respective pre-trial briefs
alternative modes of dispute resolution, indicating the desired terms
thereof; 4. Failure to file the pre-trial brief shall have the same effect as failure
to appear at the pre-trial
2. summary of admitted facts and proposed stipulation of facts;
5. parties and their counsel must appear at the pre-trial, exceptions
3. issues to be tried or resolved;
a. a valid cause is shown
4. documents or exhibits to be presented, stating the purpose thereof;
b. a representative shall appear fully authorized in writing to
5. manifestation of their having availed or their intention to avail
themselves of discovery procedures or referral to commissioners; 1) enter into an amicable settlement
and
2) submit to alternative modes of dispute resolution
6. number and names of the witnesses, and the substance of their
respective testimonies. 3) enter into stipulations or admissions of facts and of
documents
Sec. 7. Record of pre-trial. The proceedings in the pre-trial shall
be recorded. Upon the termination thereof, the court shall issue an 6. Effect of failure to appear, or to file a pre-trial brief by the
order which shall recite in detail the matters taken up in the
a. plaintiff cause for dismissal of the action with prejudice, unless
conference, the action taken thereon, the amendments allowed to
otherwise ordered by the court
the pleadings, and the agreements or admissions made by the parties
as to any of the matters considered. Should the action proceed to b. defendant cause to allow the plaintiff to present his evidence ex
trial, the order shall explicitly define and limit the issues to be tried. parte and the court to render judgment on the basis thereof
The contents of the order shall control the subsequent course of the
action, unless modified before trial to prevent manifest injustice. (5a, 7. In any case, failure to appear or to file pre-trial brief results in
R20) judgment rendered based on evidence ex-parte
Procedure in civil pre-trial 8. The proceedings in the pre-trial shall be recorded.
1. plaintiff moves that the case be set for pre-trial

9. Upon the termination of the pre-trial, the court shall issue an order him.
which shall recite in detail
Can have proffer of evidence Proffer of evidence only aft
a. the matters taken up in the conference
b. the action taken thereon CASES

c. the amendments allowed to the pleadings
d. the agreements or admissions made by the parties CHAN V. ABAYA, 90 SCRA 61 (1979)
The court is directed to hold the pre-trial of the case after the last
e. Should the action proceed to trial, the order shall explicitly define
pleading has been filed. The answer ordinarily is the last pleading. But
and limit the issues to be tried.
when the defendant's answer contains a counterclaim plaintiff's answer
10. The contents of the order shall control the subsequent course of the to it is the last pleading. When no answer to the counterclaim had been
action, unless modified before trial to prevent manifest injustice. filed because of the unresolved motion for a bill of particulars, the calling
of a pre-trial conference is premature, since there has yet to be filed the
Distinction between pre-trial in civil and pre-trial in criminal cases last pleading. Pre-trial is mandatory and notices of pre-trial must be
served separately upon the party and his counsel.
DISTINCTION BETWEEN PRE-TRIALS IN CIVIL AND CRIMINAL CASES

FILOIL V. DY PAC, 160 SCRA 133 (1988)
cf Rule 118, Criminal Pre-trial, 2000 Rules on Criminal Procedure
Courts cannot compel the parties to stipulate at pre-trial, under pain of
Civil Pre-trial Criminal Pre-trial dismissal of the case. The process of securing admissions whether of
facts or evidence is essentially voluntary, since stipulations of facts, like
Mandatory Mandatory contracts, bind the parties thereto who are not allowed to controvert
statements made therein. Where the parties are unable to arrive at a
Presence of defendant and counsel mandatory Accused need not be present, but his counsel must be
stipulation of agreed facts and do not reach an amicable settlement of
present, otherwise he may be sanctioned
their controversy, the court must close the pre-trial proceedings and go
Amicable settlement is discussed Amicable settlementforward
is notwith the trial of
discussed, the case.
unless the
criminal case is covered by summary procedure
SARMIENTO
Agreement included in pre-trial order need not be in Agreements or admissions must be written V. JUAN, 120 SCRA 403 (1983)
and signed
writing by the accused and counsel to be admissible against
The requirement that the last pleading must have been filed before a RULE 19
pre-trial may be scheduled should more appropriately be construed to
mean not only if the last pleading had been actually filed, but also if the Section 1. Who may intervene. A person who has a legal interest
period for filing the same had expired. The last permissible pleading that in the matter in litigation, or in the success of either of the parties, or
a party may file would be the reply to the answer to the last pleading of an interest against both, or is so situated as to be adversely affected
claim that had been filed in the case, which may either be the complaint, by a distribution or other disposition of property in the custody of the
a cross-claim, a counter-claim or a third party complaint, etc. court or of an officer thereof may, with leave of court, be allowed to
intervene in the action. The court shall consider whether or not the
Where neither of the parties appeared at the trial, the better recourse is intervention will unduly delay or prejudice the adjudication of the
to dismiss the claim for failure to prosecute, rather than to allow plaintiff rights of the original parties, and whether or not the intervenor's
to present his case ex parte because while the court may dismiss the rights may be fully protected in a separate proceeding. (2[a], [b]a,
claim for failure to prosecute motu proprio, it can not receive evidence ex R12)
parte without motion on the part of the plaintiff. A plaintiff who makes
no valid appearance at pre-trial may not ask that the defendant be Who may intervene a person who
punished for the same shortcoming it was equally guilty of.
1. has a legal interest
a. in the matter in litigation

CITIBANK V. CHUA, 220 SCRA 75 (1993)
Since the by-laws are a source of authority for corporate officers and b. in the success of either of the parties, or
agents of the corporation, a resolution of the Board of Directors
c. against both parties
appointing an attorney in fact to represent and bind it during the pre-trial
conference of the case at bar is not necessary when its by-laws allow its 2. or is so situated as to be adversely affected by a distribution or other
officers to execute a power of attorney to a designated bank officer, disposition of property in the custody of the court or of an officer
clothing him with authority to direct and manage corporate affairs. If the thereof
general power of attorney granted specifically allows him to delegate his
powers in whole or in part, there can be no doubt that the special power Sec. 2. Time to intervene. The motion to intervene may be filed
of attorney he executed constitutes a valid delegation of his express at any time before rendition of judgment by the trial court. A copy of
power to represent the corporation in the pre-trial conference in the the pleading-in-intervention shall be attached to the motion and
lower court. served on the original parties. (n)
Requisites for intervention

INTERVENTION 1. filed by a proper person
2. filed at any time before rendition of judgment Dismissal of the principal action results in dismissal of any corresponding
intervention proceedings. In the case at bar, the compromise agreement
3. copy of the pleading-in-intervention attached to the motion and submitted by the plaintiff and the defendants and the decision approving
served on the original parties the same recognized the validity of the Reclamation Contract and the
fact that the tract of land involved was the result of the reclamation done
4. with leave of court
by SADECO. In their answer-in-intervention, petitioner alleges that there
5. does not unduly delay or prejudice the adjudication of the rights of was no reclamation undertaken by SADECO, that the land in question
the original parties was the result of accretion from the sea and that the Reclamation
Contract is null and void. Clearly then, the compromise agreement and
6. intervenor's rights could not be fully protected in a separate the decision had in effect resolved the aforementioned issues raised by
proceeding the intervenors. The continuation of the reception of the intervenors'
evidence would serve no purpose at all. Should intervenors fail to prove
Sec. 3. Pleadings-in-intervention. The intervenor shall file a
that the Reclamation Contract is null and void and that no actual
complaint-in-intervention if he asserts a claim against either or all of
reclamation w
the original parties, or an answer-in-intervention if he unites with the
defending party in resisting a claim against the latter. (2[c]a, R12)
Sec. 4. Answer to complaint-in-intervention. The answer to the

complaint-in-intervention shall be filed within fifteen (15) days from
notice of the order admitting the same, unless a different period is as made, the correctness and propriety of the decision based on the
fixed by the court. (2[d]a, R12) compromise agreement would be strengthened. Upon the other hand,
should they succeed in proving that the contract is null and void, and that
the area in question came into being through the natural action of the
CASES sea, still the decision of the lower court could no longer be set aside,
inasmuch as it has already become final and executed.
NUAL V. CA, 221 SCRA 26 (1993)

METROBANK V. PRESIDING JUDGE, 189 SCRA 820
After judgment has been rendered, motion for intervention is barred,
(1990)
even if the judgment itself recognizes the rights of the movant. The
remedy of the movant is to file a seaparate action. Facts: Metrobank is the mortgagee of several airconditioning units.
Uniwide bought the building of the mortgagor where the airconditioning
units are located. Metrobank seeks to foreclose on the mortgage, so it
ORDONEZ V. GUSTILO, 192 SCRA 469 (1990) sues Uniwide for replevin. Raycon moved to intervene by complaint
against Metrobank. On motion, the principal case was dismiss the case corpus cases, election cases, special civil actions, and those so
on ground of compromise. TC reconsiders its dismissal on MfR by required by law. (1a, R22)
intervenor Raycor.
Contents of calendar of cases to be kept by the clerk of court
Held: There is here no final dismissal of the main case. The
aforementioned order of the lower court has the effect not only of 1. cases for pre-trial
allowing the intervention suit to proceed but also of vacating its previous
2. cases for trial
order of dismissal. The reinstatement of the case in order to try and
determine the claims and rights of the intervenor is proper. The joint 3. cases whose trials were adjourned or postponed
motion of therein plaintiff and the original defendants to dismiss the
case, without notice to and consent of the intervenor, has the effect of 4. cases with motions to set for hearing
putting to rest only the respective claims of the said original parties inter
Preferred cases
se, but the same cannot in any way affect the claim of private respondent
which was allowed by the court to intervene without opposition from the 1. habeas corpus cases
original parties.
2. election cases
Escolin: In Ordoez, the character of the intervention was truly ancilliary.
The compromise agreement between the original parties in effect 3. special civil actions, and
resolved the issue raised by the intervenor. Hence, there was no need for
the intervenors to present evidence since the issue raised by them had 4. those required by law
already been answered in the principal action. However, in Metrobank, Sec. 2. Assignment of cases. The assignment of cases to the
the character of the intervention was that it was entirely independent of different branches of a court shall be done exclusively by raffle. The
the principal action. The settlement by the original parties would not assignment shall be done in open session of which adequate notice
settle the rights fo the intervenor, and in fact such rights may even be shall be given so as to afford interested parties the opportunity to be
prejudiced by the settlement. present. (7a, R22)
Procedure in assignment of cases

CALENDAR OF CASES (RULE 20)
1. exclusively by raffle
Section 1. Calendar of cases. The clerk of court, under the direct
2. in open session
supervision of the judge, shall keep a calendar of cases for pre-trial,
for trial, those whose trials were adjourned or postponed, and those 3. adequate notice as to afford interested parties the opportunity to be
with motions to set for hearing. Preference shall be given to habeas present
SUBPOENA d) any Justice of the Supreme Court or of the Court of Appeals in
any case or investigation pending within the Philippines.
RULE 21 When application for a subpoena to a prisoner is made, the judge

or officer shall examine and study carefully such application to
Section 1. Subpoena and subpoena duces tecum. Subpoena is a determine whether the same is made for a valid purpose.
process directed to a person requiring him to attend and to testify at
the hearing or the trial of an action, or at any investigation conducted No prisoner sentenced to death, reclusion perpetua or life
by competent authority, or for the taking of his deposition. It may imprisonment and who is confined in any penal institution shall be
also require him to bring with him any books, documents, or other brought outside the said penal institution for appearance or
things under his control, in which case it is called a subpoena duces attendance in any court unless authorized by the Supreme Court. (2a,
tecum. (1a, R23) R23)
Subpoena a process Who may issue subpoena
1. directed to a person 1. the court before whom the witness is required to attend
2. requiring him to attend and to testify 2. the court of the place where the deposition is to be taken
a. at the hearing or the trial of an action, or 3. the investigating officer or body authorized by law
b. at any investigation conducted by competent authority, or 4. any SC or CA Justice in any case or investigation pending within the
Philippines
c. for the taking of his deposition
Only the SC may authorize a prisoner sentenced to death, reclusion
3. if it also requires him to bring with him any books, documents, or perpetua or life imprisonment, and who is confined in any penal
other things under his control, it is called a subpoena duces tecum institution, to be brought outside the said penal institution for
appearance or attendance in any court.
Sec. 2. By whom issued. The subpoena may be issued by
Sec. 3. Form and contents. A subpoena shall state the name of
a) the court before whom the witness is required to attend; the court and the title of the action or investigation, shall be directed
to the person whose attendance is required, and in the case of a
b) the court of the place where the deposition is to be taken;
subpoena duces tecum, it shall also contain a reasonable description
c) the officer or body authorized by law to do so in connection of the books, documents or things demanded which must appear to
with investigations conducted by said officer or body; or the court prima facie relevant. (3a, R23)
Form and contents 4. witness fees and kilometrage allowed by these Rules were not
tendered when the subpoena was served
1. name of the court
cf Rule 141 for kilometrage fees
2. title of the action or investigation
Grounds for quashing a subpoena ad testificandum
3. directed to the person whose attendance is required
1. the witness is not bound thereby
4. a reasonable description of any objects so demanded
2. witness fees and kilometrage allowed by these Rules were not
Sec. 4. Quashing a subpoena. The court may quash a subpoena tendered when the subpoena was served
duces tecum upon motion promptly made and, in any event, at or
before the time specified therein if it is unreasonable and oppressive, Sec. 5. Subpoena for depositions. Proof of service of a notice to
or the relevancy of the books, documents or things does not appear, take a deposition, as provided in sections 15 and 25 of Rule 23, shall
or if the person in whose behalf the subpoena is issued fails to constitute sufficient authorization for the issuance of subpoenas for
advance the reasonable cost of the production thereof. the persons named in said notice by the clerk of the court of the place
in which the deposition is to be taken. The clerk shall not, however,
The court may quash a subpoena ad testificandum on the ground issue a subpoena duces tecum to any such person without an order of
that the witness is not bound thereby. In either case, the subpoena the court. (5a, R23)
may be quashed on the ground that the witness fees and kilometrage
allowed by these Rules were not tendered when the subpoena was cf Rule 23, Secs. 15 and 25
served. (4a, R23)
Sec. 15. Deposition upon oral examination; notice; time and place.
Motion to quash a subpoena duces tecum must be filed at or before the A party desiring to take the deposition of any person upon oral
time specified therein. examination shall give reasonable notice in writing to every other
party to the action. The notice shall state the time and place for
Grounds for quashing a subpoena duces tecum taking the deposition and the name and address of each person
to be examined, if known, and if the name is not known, a
1. unreasonable and oppressive, or
general description sufficient to identify him or the particular
2. relevancy of the object does not appear, or class or group to which he belongs. On motion of any party upon
whom the notice is served, the court may for cause shown
3. the person in whose behalf the subpoena is issued fails to advance enlarge or shorten the time. (15, R24)
the reasonable cost of the production of the object
Sec. 25. Deposition upon written interrogatories; service of notice
and of interrogatories. A party desiring to take the deposition
of any person upon written interrogatories shall serve them upon Sec. 6. Service. Service of a subpoena shall be made in the same
every other party with a notice stating the name and address of manner as personal or substituted service of summons. The original
the person who is to answer them and the name or descriptive shall be exhibited and a copy thereof delivered to the person on
title and address of the officer before whom the deposition is to whom it is served, tendering to him the fees for one days attendance
be taken. Within ten (10) days thereafter, a party so served may and the kilometrage allowed by these Rules, except that, when a
serve cross-interrogatories upon the party proposing to take the subpoena is issued by or on behalf of the Republic of the Philippines
deposition. Within five (5) days thereafter, the latter may serve or an officer or agency thereof, the tender need not be made. The
re-direct interrogatories upon a party who has served cross- service must be made so as to allow the witness a reasonable time for
interrogatories. Within three (3) days after being served with re- preparation and travel to the place of attendance. If the subpoena is
direct interrogatories, a party may serve recross-interrogatories duces tecum, the reasonable cost of producing the books, documents
upon the party proposing to take the deposition. (25, R24) or things demanded shall also be tendered. (6a, R23)
The clerk of court can issue a subpoena ad testificandum to a witness to Note that subpoenas are served like summons, not simply like other
take his deposition. However, such clerk of court can not issue a papers.
subpoena duces tecum unless there is an order of the court.
Service of a subpoena
Requisites for a clerk of court, of the place in which a deposition is to be
taken, to issue a subpoena ad testificandum 1. in the same manner as personal or substituted service of summons.
1. reasonable notice in writing to every other party to the action 2. original shall be exhibited and a copy thereof delivered to the person
on whom it is served
2. notice shall state
3. there must be tender of fees for one days attendance and the
a. the time and place for taking the deposition kilometrage, unless the subpoena is issued by or on behalf of the
Republic of the Philippines or an officer or agency thereof
b. the name and address of each person to be examined, if known,
and if the name is not known, a general description sufficient to 4. must allow the witness a reasonable time for preparation and travel
identify him or the particular class or group to which he belongs to the place of attendance
c. (in case of written interrogatories) name or descriptive title and 5. If the subpoena is duces tecum, the reasonable cost of producing the
address of the officer before whom the deposition is to be taken objects demanded shall also be tendered.
3. proof of service of the notice de Leon: Is service of a subpoena duces tecum issued by or on behalf of
the government also exempt from tendering the reasonable cost of
producing the object?
Sec. 7. Personal appearance in court. A person present in court Sec. 10. Exceptions. The provisions of sections 8 and 9 of this
before a judicial officer may be required to testify as if he were in Rule shall not apply to a witness who resides more than one hundred
attendance upon a subpoena issued by such court or officer. (10, R23) (100) kilometers from his residence to the place where he is to testify
by the ordinary course of travel, or to a detention prisoner if no
A person present in court may be compelled to testify even without permission of the court in which his case is pending was obtained. (9a,
being served a subpoena. R23)
Sec. 8. Compelling attendance. In case of failure of a witness to When witness may disobey subpoena
attend, the court or judge issuing the subpoena, upon proof of the
service thereof and of the failure of the witness, may issue a warrant 1. he resides more than 100 kilometers from the place where he is to
to the sheriff of the province, or his deputy, to arrest the witness and testify by the ordinary course of travel,
bring him before the court or officer where his attendance is required,
and the cost of such warrant and seizure of such witness shall be paid 2. a detention prisoner if no permission of the court in which his case is
by the witness if the court issuing it shall determine that his failure to pending was obtained
answer the subpoena was willful and without just excuse. (11, R23)
Requisites for an arrest warrant against a witness CASES
1. proof of the service of the subpoena

PEOPLE V. MONTEJO, 21 SCRA 722 (1967)
2. failure of a witness to attend
FACTS
3. issued by the court or judge issuing the subpoena
Felix Wee Sit was charged with double homicide and SPI thru
Sec. 9. Contempt. Failure by any person without adequate reckless imprudence in the Zambo CFI.
cause to obey a subpoena served upon him shall be deemed a
contempt of the court from which the subpoena is issued. If the Patrolman Ernesto Uaje was stated as a material and important
subpoena was not issued by a court, the disobedience thereto shall be witness to the accident. At the time of the trial, Patrolman Uaje
punished in accordance with the applicable law or Rule. (12a, R23) had already returned to Montalban Rizal.
Penalty for failure without adequate cause to obey a subpoena served Upon formal request of the City Fiscal, respondent judge
upon and issued by Montejo issued a subpoena to Uaje addressed at Montalban
Rizal.
1. a court - contempt
2. not a court - punished in accordance with the applicable law or Rule

Subpoena was served on Uaje, the return showing that he had enforced. The right to a bonus is wholly independent of the profits of the
received it. Uaje did not appear in the trials continuation. company; hence subpoena duces tecum to produce objects that show
such profitability is improper.
City Fiscal moved for an order of arrest or to cite for contempt
Uaje for willful failure to appear. In determining whether the production of the documents described in a
subpoena duces tecum should be enforced by the court, it is prope to
Respondent judge denied said motion. MfR was also denied. consider, first, whether the subpoena calls for the production of specific
documents, or rather for specific proof, and second, whether that proof is
Petition was given due course with prelim injunction issued.
prima facie sufficiently relevant to justify enforcing its production.
HELD
The rule excusing a witness from obeying a subpoena if the COMPUTATION OF TIME (RULE 22)
distance exceeds 50 (now 100) kilometers from his place of
residence to the place of trial, applies solely to civil cases and Section 1. How to compute time. In computing any period of
not to criminal cases. time prescribed or allowed by these Rules, or by order of the court, or
by any applicable statute, the day of the act or event from which the
The refusal of a judge to grant the prosecution's motion to arrest designated period of time begins to run is to be excluded and the date
a material witness in a criminal case, or in the alternative, to cite of performance included. If the last day of the period, as thus
him for contempt, amounts to grave abuse of discretion. computed, falls on a Saturday, a Sunday, or a legal holiday in the
place where the court sits, the time shall not run until the next
working day. (n)
LIEBENOW V. PHIL. VEGETABLE, 39 PHIL 60 (1918)
In computing any period of time, the day from which the period begins to
Facts: Liebenow was an employee of Phil. Vegetable Oil Company. He
run is to be excluded and the date of performance included.
sues Phil. Vegetable claiming to be entitled to bonuses due to the
increased profitability of the company. He caused the issuance of a If the last day of the period falls on a Saturday, a Sunday, or a legal
subpoena duces tecum for the defendant to produce various voluminous holiday in the place where the court sits, the time shall not run until the
records in order to show the increased profitability of the company. next working day.
Defendant moved to vacate the subpoena duces tecum.
Sec. 2. Effect of interruption. Should an act be done which
Held: Subpoena duces tecum may be issued to procure objects which are effectively interrupts the running of the period, the allowable period
relevant to the case. A general inquisitorial examination of all the books, after such interruption shall start to run on the day after notice of the
papers, and documents of an adversary, conducted with a view to cessation of the cause thereof.
ascertain whether something of value may not show up, will not be
The day of the act that caused the interruption shall be excluded Section 1. Depositions pending action, when may be taken. By
in the computation of the period. (n) leave of court after jurisdiction has been obtained over any defendant
or over property which is the subject of the action, or without such
Should the period be interrupted, the day of interruption shall be leave after an answer has been served, the testimony of any person,
excluded. The period shall run again on the day after notice of the whether a party or not, may be taken, at the instance of any party, by
cessation of the cause. deposition upon oral examination or written interrogatories. The
attendance of witnesses may be compelled by the use of a subpoena
as provided in Rule 21. Depositions shall be taken only in accordance
MODES OF DISCOVERY (RULE 23-29) with these Rules. The deposition of a person confined in prison may
be taken only by leave of court on such terms as the court prescribes.
Kinds of depositions (1a, R24)
1. Depositions Pending Actions When depositions of anyone pending action may be taken
2. Depositions Before Action or Pending Appeal 1. after jurisdiction has been obtained over any defendant or over
3. Interrogatories to Parties property which is the subject of the action, but before answer has
been served by leave of court
4. Admission by Adverse Party
2. after an answer has been served leave of court not required
5. Production or Inspection of Documents of Things
The attendance of witnesses may be compelled by the use of a
6. Physical and Mental Examination of Persons subpoena.
Famador: Bill of Particulars is a mode of discovery. The deposition of a person confined in prison may be taken only by leave
of court on such terms as the court prescribes.
DEPOSITIONS PENDING ACTIONS Sec. 2. Scope of examination. Unless otherwise ordered by the
court as provided by section 16 or 18 of this Rule, the deponent may
Affidavits, by itself, are not admissible against the other party because be examined regarding any matter, not privileged, which is relevant
the other party had no opportunity to cross-examine. Depositions, by to the subject of the pending action, whether relating to the claim or
itself, are admissible against the other party because the other party had defense of any other party, including the existence, description,
an opportunity to cross-examine. nature, custody, condition, and location of any books, documents, or
other tangible things and the identity and location of persons having
RULE 23 knowledge of relevant facts. (2, R24)
Sec. 16. Orders for the protection of parties and deponents. After the witness the requirement to pay such costs or expenses as the
notice is served for taking a deposition by oral examination, upon court may deem reasonable. (18a, R24)
motion seasonably made by any party or by the person to be
examined and for good cause shown, the court in which the action is The deponent may be examined regarding any matter
pending may make an order that the deposition shall not be taken, or
1. not privileged, and
that it may be taken only at some designated place other than that
stated in the notice, or that it may be taken only on written 2. is relevant to the subject of the pending action
interrogatories, or that certain matters shall not be inquired into, or
that the scope of the examination shall be held with no one present After notice is served for taking a deposition by oral examination, upon
except the parties to the action and their officers or counsel, or that motion seasonably made by any party or by the person to be examined
after being sealed the deposition shall be opened only by order of the and for good cause shown, the court in which the action is pending may
court, or that secret processes, developments, or research need not make an order that
be disclosed, or that the parties shall simultaneously file specified
1. deposition shall not be taken
documents or information enclosed in sealed envelopes to be opened
as directed by the court; or the court may make any other order which 2. it may be taken only at some designated place other than that stated
justice requires to protect the party or witness from annoyance, in the notice
embarrassment, or oppression. (16a, R24)
3. it may be taken only on written interrogatories
Sec. 18. Motion to terminate or limit examination. At any time
during the taking of the deposition, on motion or petition of any party 4. certain matters shall not be inquired into
or of the deponent and upon a showing that the examination is being
conducted in bad faith or in such manner as unreasonably to annoy, 5. the scope of the examination shall be held with no one present
embarrass, or oppress the deponent or party, the court in which the except the parties to the action and their officers or counsel
action is pending or the Regional Trial Court of the place where the 6. after being sealed the deposition shall be opened only by order of the
deposition is being taken may order the officer conducting the court
examination to cease forthwith from taking the deposition, or may
limit the scope and manner of the taking of the deposition, as 7. secret processes, developments, or research need not be disclosed
provided in section 16 of this Rule. If the order made terminates the
examination, it shall be resumed thereafter only upon the order of the 8. the parties shall simultaneously file specified documents or
court in which the action is pending. Upon demand of the objecting information enclosed in sealed envelopes to be opened as directed
party or deponent, the taking of the deposition shall be suspended for by the court
the time necessary to make a notice for an order. In granting or
9. any other order which justice requires to protect the party or witness
refusing such order, the court may impose upon either party or upon
from annoyance, embarrassment, or oppression.
Requisites for a court order to terminate or limit the scope and manner of (1) To be protected from irrelevant, improper, or insulting
taking of the deposition questions, and from harsh or insulting demeanor;
1. motion or petition of any party or of the deponent (2) Not to be detained longer than the interests of justice
require;
2. At any time during the taking of the deposition
(3) Not to be examined except only as to matters pertinent to
3. showing that the examination is being conducted in bad faith or to the issue;
unreasonably to annoy, embarrass, or oppress the deponent or party
(4) Not to give an answer which will tend to subject him to a
4. issued by the court in which the action is pending or the RTC of the penalty for an offense unless otherwise provided by law; or
place where the deposition is being taken
(5) Not to give an answer which will tend to degrade his
If the order made terminates the examination, it shall be resumed reputation, unless it be to the very fact at issue or to a fact from
thereafter only upon the order of the court in which the action is which the fact in issue would be presumed. But a witness must
pending. answer to the fact of his previous final conviction for an offense.
(3 a, l9 a)
Upon demand of the objecting party or deponent, the taking of the
deposition shall be suspended for the time necessary to make a notice Sec. 18. Right to inspect writing shown to witness. - Whenever a
for an order. writing is shown to a witness, it may be inspected by the adverse
party. (9 a)
In granting or refusing such order, the court may impose upon either
party or upon the witness the requirement to pay such costs or expenses Sec. 4. Use of depositions. At the trial or upon the hearing of a
as the court may deem reasonable. 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
Sec. 3. Examination and cross-examination. Examination and
any party who was present or represented at the taking of the
cross-examination of deponents may proceed as permitted at the trial
deposition or who had due notice thereof, in accordance with any one
under sections 3 to 18 of Rule 132. (3a, R24)
of the following provisions:
cf Rule 132, Sec. 3 and 18
(a) Any deposition may be used by any party for the purpose of
Sec. 3. Rights and obligations of a witness. - A witness must contradicting or impeaching the testimony of deponent as a witness;
answer questions, although his answer may tend to establish a
(b) The deposition of a party or of any one who at the time of
claim against him. However, it is the right of a witness:
taking the deposition was an officer, director, or managing agent of a
public or private corporation, partnership, or association which is a a. a motion or
party may be used by an adverse party for any purpose;
b. an interlocutory proceeding
(c) The deposition of a witness, whether or not a party, may be
used by any party for any purpose if the court finds: (1) that the Any deposition may be used by any party for the purpose of
witness is dead; or (2) that the witness resides at a distance more than contradicting or impeaching the testimony of deponent as a witness.
one hundred (100) kilometers from the place of trial or hearing, or is
Instances when the deposition of any witness may be used by the
out of the Philippines, unless it appears that his absence was procured
adverse party for any purpose
by the party offering the deposition; or (3) that the witness is unable
to attend or testify because of age, sickness, infirmity, or 1. the deponent is a party
imprisonment; or (4) that the party offering the deposition has been
unable to procure the attendance of the witness by subpoena; or (5) 2. the deponent, at the time of taking the deposition, was an officer,
upon application and notice, that such exceptional circumstances director, or managing agent of a public or private corporation,
exist as to make it desirable, in the interest of justice and with due partnership, or association which is a party
regard to the importance of presenting the testimony of witnesses
Instances when the deposition of any witness may be used by any party
orally in open court, to allow the deposition to be used; and
for any purpose
(d) If only part of a deposition is offered in evidence by a party, the
1. the witness is dead; or
adverse party may require him to introduce all of it which is relevant
to the part introduced, and any party may introduce any other parts. 2. the witness resides at a distance more than 100 kilometers from the
(4a, R24) place of trial or hearing
Memorize Sec. 4! 3. the witness is out of the Philippines, unless it appears that his
absence was procured by the offeror
The deposition may be used against any party who
4. the witness is unable to attend or testify because of age, sickness,
1. was present or represented at the taking of the deposition, or
infirmity, or imprisonment
2. who had due notice
5. offeror has been unable to procure the attendance of the witness by
When deposition may be used subpoena; or
1. At the trial or 6. upon application and notice, that such exceptional circumstances
exist as to make it desirable, in the interest of justice and with due
2. upon the hearing of
regard to the importance of presenting the testimony of witnesses (a) As to notice. All errors and irregularities in the notice for
orally in open court, to allow the deposition to be used; and taking a deposition are waived unless written objection is promptly
served upon the party giving the notice.
If only part of a deposition is offered in evidence by a party
(b) As to disqualification of officer. Objection to taking a
1. the adverse party may require him to introduce all of it which is deposition because of disqualification of the officer before whom it is
relevant to the part introduced, and to be taken is waived unless made before the taking of the deposition
begins or as soon thereafter as the disqualification becomes known or
2. any party may introduce any other parts.
could be discovered with reasonable diligence.
Sec. 5. Effect of substitution of parties. Substitution of parties
(c) As to competency or relevancy of evidence. Objections to the
does not affect the right to use depositions previously taken; and,
competency of a witness or the competency, relevancy, or materiality
when an action has been dismissed and another action involving the
of testimony are not waived by failure to make them before or during
same subject is afterward brought between the same parties or their
the taking of the deposition, unless the ground of the objection is one
representatives or successors in interest, all depositions lawfully
which might have been obviated or removed if presented at that
taken and duly filed in the former action may be used in the latter as if
time.
originally taken therefor. (5, R24)
(d) As to oral examination and other particulars. Errors and
Substitution of parties does not affect the right to use depositions
irregularities occurring at the oral examination in the manner of
previously taken.
taking the deposition, in the form of the questions or answers, in the
When an action has been dismissed and another action involving the oath or affirmation, or in the conduct of the parties and errors of any
same subject is afterward brought between the same parties or their kind which might be obviated, removed, or cured if promptly
representatives or successors in interest, all depositions lawfully taken prosecuted, are waived unless reasonable objection thereto is made
and duly filed in the former action may be used in the latter as if at the taking of the deposition.
originally taken therefor.
(e) As to form of written interrogatories. Objections to the form
Sec. 6. Objections to admissibility. Subject to the provisions of of written interrogatories submitted under sections 25 and 26 of this
section 29 of this Rule, objection may be made at the trial or hearing Rule are waived unless served in writing upon the party propounding
to receiving in evidence any deposition or part thereof for any reason them within the time allowed for serving succeeding cross or other
which would require the exclusion of the evidence if the witness were interrogatories and within three (3) days after service of the last
then present and testifying. (6, R24) interrogatories authorized.
Sec. 29. Effects of errors and irregularities in depositions. (f) As to manner of preparation. Errors and irregularities in the
manner in which the testimony is transcribed or the deposition is
prepared, signed, certified, sealed, indorsed, transmitted, filed, or 6. manner of transcribing or preparation by the officer with
otherwise dealt with by the officer under sections 17, 19, 20 and 26 of reasonable promptness after such defect is, or with due diligence
this Rule are waived unless a motion to suppress the deposition or might have been, ascertained.
some part thereof is made with reasonable promptness after such
defect is, or with due diligence might have been, ascertained. (29a, Sec. 7. Effect of taking depositions. A party shall not be deemed
R24) to make a person his own witness for any purpose by taking his
deposition. (7, R24)
GR: Objections to depositions raised at the time they are offered in
evidence as if the witness were actually testifying. Sec. 8. Effect of using depositions. The introduction in evidence
of the deposition or any part thereof for any purpose other than that
Exceptions: Objections as to of contradicting or impeaching the deponent makes the deponent the
witness of the party introducing the deposition, but this shall not
1. notice promptly served upon the party giving the notice. apply to the use by an adverse party of a deposition as described in
paragraph (b) of section 4 of this Rule. (8, R24)
2. disqualification of officer made
cf Rule 23, Sec. 4
a. before the taking of the deposition begins or
Sec. 4. Use of depositions. xxx
b. as soon thereafter as the disqualification becomes known or
could be discovered with reasonable diligence. (b) The deposition of a party or of any one who at the time of
taking the deposition was an officer, director, or managing agent
3. competency or relevancy of evidence which might have been
of a public or private corporation, partnership, or association
obviated or removed if presented at upon deposition at the time of
which is a party may be used by an adverse party for any
deposition
purpose;
4. conduct of the oral examination which might be obviated, removed,
GR: A party shall not be deemed to make a person his own witness for
or cured if promptly raised at the taking of the deposition.
any purpose by taking his deposition.
5. form of written interrogatories. served in writing upon the party
Exception: The introduction in evidence of the deposition or any part
propounding them within
thereof makes the deponent the witness of the party introducing the
a. the time allowed for serving succeeding cross or other deposition.
interrogatories and
Exception to the exception: Introduction of deposition in evidence does
b. within 3 days after service of the last interrogatories authorized. not make the deponent a witness of the offeror where
1. the purpose was to contradict or impeach the deponent 2. notary public, or
2. the deposition is that of an adverse party or an officer, director, or 3. any person authorized to administer oaths, if the parties so stipulate
managing agent of entities which is an adverse party in writing
Sec. 9. Rebutting deposition. At the trial or hearing, any party Escolin: Never designate a RTC judge to be a deposition officer.
may rebut any relevant evidence contained in a deposition whether
introduced by him or by any other party. (9, R24) Persons before whom depositions may be taken in foreign countries
Any party may rebut any relevant evidence contained in a deposition 1. on notice before Philippine Republics
introduced by anybody, including himself.
a. a secretary of embassy or legation
Sec. 10. Persons before whom depositions may be taken within the
b. consul general
Philippines. Within the Philippines, depositions may be taken
before any judge, notary public, or the person referred to in section 14 c. consul
hereof. (10a, R24)
d. vice-consul, or
Sec. 11. Persons before whom depositions may be taken in foreign
countries. In a foreign state or country, depositions may be taken e. consular agent
(a) on notice before a secretary of embassy or legation, consul
2. person or officer as may be appointed by commission or under letters
general, consul, vice-consul, or consular agent of the Republic of the
rogatory
Philippines; (b) before such person or officer as may be appointed by
commission or under letters rogatory; or (c) the person referred to in 3. any person authorized to administer oaths, if the parties so stipulate
section 14 hereof. (11a, R24) in writing
Sec. 14. Stipulations regarding taking of depositions. If the Sec. 12. Commission or letters rogatory. A commission or letters
parties so stipulate in writing, depositions may be taken before any rogatory shall be issued only when necessary or convenient, on
person authorized to administer oaths, at any time or place, in application and notice, and on such terms and with such direction as
accordance with these Rules, and when so taken may be used like are just and appropriate. Officers may be designated in notices or
other depositions. (14a, R24) commissions either by name or descriptive title and letters rogatory
may be addressed to the appropriate judicial authority in the foreign
Persons before whom depositions may be taken within the Philippines
country. (12a, R24)
1. any judge
When commission or letters rogatory may be issued
1. only when necessary or convenient examination shall give reasonable notice in writing to every other
party to the action. The notice shall state the time and place for
2. on application and notice taking the deposition and the name and address of each person to be
examined, if known, and if the name is not known, a general
3. on such terms and with such direction as are just and appropriate
description sufficient to identify him or the particular class or group to
Officers may be designated in notices or commissions either by name or which he belongs. On motion of any party upon whom the notice is
descriptive title and letters rogatory may be addressed to the served, the court may for cause shown enlarge or shorten the time.
appropriate judicial authority in the foreign country. (15, R24)
Sec. 13. Disqualification by interest. No deposition shall be Procedure in deposition upon oral examination
taken before a person who is a relative within the sixth degree of
1. reasonable notice in writing given to every other party to the action
consanguinity or affinity, or employee or counsel of any of the
parties; or who is a relative within the same degree, or employee of 2. notice shall state
such counsel; or who is financially interested in the action. (13a, R24)
a. time and place for taking the deposition
Disqualifications in taking depositions
b. if known, name and address of each person to be examined
1. relation as to a party
c. if the name is not known, a general description sufficient to
a. relative within the sixth degree of consanguinity or affinity identify him or the particular class or group to which he belongs
b. employee or counsel 3. On motion of any party, the court may enlarge or shorten the time
2. relation as to counsel of any of the parties Sec. 16. Orders for the protection of parties and deponents. xxx
(moved to after Sec. 2)
a. relative within the same degree
Sec. 17. Record of examination; oath; objections. The officer
b. employee
before whom the deposition is to be taken shall put the witness on
3. financial interest in the action oath and shall personally, or by some one acting under his direction
and in his presence, record the testimony of the witness. The
Sec. 14. Stipulations regarding taking of depositions. xxx (moved testimony shall be taken stenographically unless the parties agree
after Secs. 10 and 11) otherwise. All objections made at the time of the examination to the
qualifications of the officer taking the deposition, or to the manner of
Sec. 15. Deposition upon oral examination; notice; time and place.
taking it, or to the evidence presented, or to the conduct of any party,
A party desiring to take the deposition of any person upon oral
and any other objection to the proceedings, shall be noted by the Sec. 18. Motion to terminate or limit examination. xxx (moved to
officer upon the deposition. Evidence objected to shall be taken after Sec. 2)
subject to the objections. In lieu of participating in the oral
examination, parties served with notice of taking a deposition may Sec. 19. Submission to witness; changes; signing. When the
transmit written interrogatories to the officers, who shall propound testimony is fully transcribed, the deposition shall be submitted to
them to the witness and record the answers verbatim. (17, R24) the witness for examination and shall be read to or by him, unless
such examination and reading are waived by the witness and by the
The officer before whom the deposition is to be taken shall put the parties. Any changes in form or substance which the witness desires
witness on oath and shall personally, or by some one acting under his to make shall be entered upon the deposition by the officer with a
direction and in his presence, record the testimony of the witness. statement of the reasons given by the witness for making them. The
deposition shall then be signed by the witness, unless the parties by
The testimony shall be taken stenographically unless the parties agree stipulation waive the signing or the witness is ill or cannot be found or
otherwise. refuses to sign. If the deposition is not signed by the witness, the
officer shall sign it and state on the record the fact of the waiver or of
Following objections, made at the time of the examination, shall be
the illness or absence of the witness or the fact of the refusal to sign
noted by the officer upon the deposition
together with the reason given therefor, if any, and the deposition
1. the qualifications of the officer taking the deposition may then be used as fully as though signed, unless on a motion to
suppress under section 29 (f) of this Rule, the court holds that the
2. the manner of taking it reasons given for the refusal to sign require rejection of the deposition
in whole or in part. (19a, R24)
3. the evidence presented
cf Sec. 29 (f)
4. the conduct of any party, and
Sec. 29. Effects of errors and irregularities in depositions.
5. any other objection to the proceedings.
(f) As to manner of preparation. Errors and irregularities in the
Evidence objected to shall be taken subject to the objections.
manner in which the testimony is transcribed or the deposition is
de Leon: Note that the deposition officer does not rule on the objections. prepared, signed, certified, sealed, indorsed, transmitted, filed,
He merely notes them. or otherwise dealt with by the officer under sections 17, 19, 20
and 26 of this Rule are waived unless a motion to suppress the
In lieu of participating in the oral examination, parties served with notice deposition or some part thereof is made with reasonable
of taking a deposition may transmit written interrogatories to the promptness after such defect is, or with due diligence might have
officers, who shall propound them to the witness and record the answers been, ascertained. (29a, R24)
verbatim.
Sec. 20. Certification and filing by officer. The officer shall 5. If the deposition is not signed by the witness
certify on the deposition that the witness was duly sworn to by him
and that the deposition is a true record of the testimony given by the a. the officer shall sign it and
witness. He shall then securely seal the deposition in an envelope
b. state on the record the fact of
indorsed with the title of the action and marked "Deposition of (here
insert the name of witness)" and shall promptly file it with the court in 1) the waiver, illness, or absence of the witness or
which the action is pending or send it by registered mail to the clerk
thereof for filing. (20, R24) 2) the refusal to sign together with the reason given
therefor, if any
Sec. 21. Notice of filing. The officer taking the deposition shall
give prompt notice of its filing to all the parties. (21, R24) c. the deposition may then be used as fully as though signed, unless
on a motion to suppress is filed and the court holds that the
Post examination procedure reasons given for the refusal to sign require rejection of the
deposition in whole or in part.
1. testimony is fully transcribed
6. The officer shall then
2. deposition shall be submitted to the witness for examination and
shall be read to or by him, unless such examination and reading are a. certify on the deposition that
waived by the witness and by the parties
1) the witness was duly sworn to by him and
3. Any changes in form or substance which the witness desires to make
shall be entered upon the deposition by the officer with a statement 2) the deposition is a true record of the testimony given
of the reasons given by the witness for making them. by the witness
4. The deposition shall then be signed by the witness, unless b. securely seal the deposition in an envelope indorsed with the title
of the action and marked "Deposition of (here insert the name of
a. the parties by stipulation waive the signing or witness)"
b. the witness is c. promptly
1) ill or 1) file it with the court in which the action is pending or
2) cannot be found or 2) send it by registered mail to the clerk thereof for

filing.
3) refuses to sign.
d. give prompt notice of its filing to all the parties
Sec. 22. Furnishing copies. Upon payment of reasonable charges Sec. 25. Deposition upon written interrogatories; service of notice
therefor, the officer shall furnish a copy of the deposition to any party and of interrogatories. A party desiring to take the deposition of
or to the deponent. (22, R24) any person upon written interrogatories shall serve them upon every
other party with a notice stating the name and address of the person
Upon payment of reasonable charges, the officer shall furnish a copy of who is to answer them and the name or descriptive title and address
the deposition to any party or to the deponent. of the officer before whom the deposition is to be taken. Within ten
(10) days thereafter, a party so served may serve cross-interrogatories
Sec. 23. Failure to attend of party giving notice. If the party
upon the party proposing to take the deposition. Within five (5) days
giving the notice of the taking of a deposition fails to attend and
thereafter, the latter may serve re-direct interrogatories upon a party
proceed therewith and another attends in person or by counsel
who has served cross-interrogatories. Within three (3) days after
pursuant to the notice, the court may order the party giving the
being served with re-direct interrogatories, a party may serve recross-
notice to pay such other party the amount of the reasonable expenses
interrogatories upon the party proposing to take the deposition. (25,
incurred by him and his counsel in so attending, including reasonable
R24)
attorneys fees. (23a, R24)
Sec. 26. Officers to take responses and prepare record. A copy of
Sec. 24. Failure of party giving notice to serve subpoena. If the
the notice and copies of all interrogatories served shall be delivered
party giving the notice of the taking of a deposition of a witness fails
by the party taking the deposition to the officer designated in the
to serve a subpoena upon him and the witness because of such failure
notice, who shall proceed promptly, in the manner provided by
does not attend, and if another party attends in person or by counsel
sections 17, 19 and 20 of this Rule, to take the testimony of the
because he expects the deposition of that witness to be taken, the
witness in response to the interrogatories and to prepare, certify, and
court may order the party giving the notice to pay to such other party
file or mail the deposition, attaching thereto the copy of the notice
the amount of the reasonable expenses incurred by him and his
and the interrogatories received by him. (26, R24)
counsel in so attending, including reasonable attorneys fees. (24a,
R24) Sec. 27. Notice of filing and furnishing copies. When a deposition
upon interrogatories is filed, the officer taking it shall promptly give
When court may order the party giving the notice to pay the other
notice thereof to all the parties, and may furnish copies to them or to
attending party reasonable expenses incurred by him and his counsel in
the deponent upon payment of reasonable charges therefor. (27, R24)
so attending, including reasonable attorneys fees
Procedure in taking deposition upon written interrogatories
1. Failure to attend of party giving notice
1. service of the written interrogatories and notice every other party
2. Failure of a witness to attend because of failure of the party giving
notice to serve a subpoena upon him 2. notice shall state
a. the name and address of the person who is to answer them and
b. the name or descriptive title and address of the officer before notice or that it shall not be taken except upon oral examination.
whom the deposition is to be taken (28a, R24)
3. Within 10 days thereafter, a party so served may serve cross- Requisites for an court order for the protection of parties and deponents
interrogatories
1. After the service of the interrogatories and prior to the taking of the
4. Within 5 days thereafter, re-direct interrogatories may be served testimony
5. Within 3 days thereafter, recross-interrogatories may be served 2. motion made by a party or a deponent
6. A copy of the notice and copies of all interrogatories served shall be 3. for good cause shown
delivered by the party taking the deposition to the officer designated
in the notice 4. the order either that
7. the officer shall proceed to a. order specified in sections 15, 16 and 18 of this Rule
a. take the testimony of the witness in response to the b. the deposition shall not be taken before the officer designated in
interrogatories and the notice
b. prepare, certify, and file or mail the deposition, attaching thereto c. the deposition shall not be taken except upon oral examination
the copy of the notice and the interrogatories received by him.
Sec. 29. Effects of errors and irregularities in depositions. xxx
c. Notify all parties of the filing of the deposition upon (moved to after Sec. 6)
interrogatories
CASES
The officer may furnish copies of the deposition upon interrogatories to
the parties or to the deponent upon payment of reasonable charges. CAMUS DE LOPEZ V. MACEREN, 95 PHIL 753
Sec. 28. Orders for the protection of parties and deponents. After (1954)
the service of the interrogatories and prior to the taking of the FACTS Salvador Lopez, Sr. died. Second wife Lourdes Camus de Lopez
testimony of the deponent, the court in which the action is pending, and children filed a civil case in Davao CFI for delivery of some property
on motion promptly made by a party or a deponent, and for good of the deceased against first wife Maria and children. After defendants
cause shown, may make any order specified in sections 15, 16 and 18 answer was filed, petitioner filed a notice for the taking of her
of this Rule which is appropriate and just or an order that the deposition and that of Pilar Cristobal at rm202 of the Vasquez Bldg.
deposition shall not be taken before the officer designated in the Acting upon an urgent motion of the defendants, respondent judge
Maceren issued an order prohibiting the taking of said desposition.
Petitioner instituted the present case for the purpose of annulling said grave abuse of discretion was committed by respondent judge in issuing
order and of having no restraint to the taking of the deposition. the order.
Petitioner maintains that respondent judge committed a grave abuse of Said order is annulled and set aside.
discretion in forbidding the taking of said deposition, she being entitled
thereto as a matter of right, without leave of court, after the filing of the Famador: Lopez vs Maceren is one of the exceptions to the testimony of
answer of the defendants. witnesses in open court. Another exception is when the witness is a
minor.
Respondent invokes Sec16 Rule 29 which explicitly vests in the court the
power to order that the deposition shall not be taken and, this grant
connotes the authority to exercise discretion in connection therewith. VERAN V. CA, 157 SCRA 438 (1988)
FACTS
HELD If the order of the court forbidding the taking of a deposition does
not claim to seek to avert discovery which is intended not as an aid to Plaintiffs brought an action to recover possession of a parcel of land in
litigation, but merely to annoy, embarrass or oppress either the Atimonan Quezon against defendant Primitiva Villareal.
deponent or the adverse party, or both, and tends, in effect, to deprive a
party of not only the right to take depositions, but also the opportunity Plaintiff alleged that they only allowed Villareal, being a cousin, to erect
to prove his claim (e.g. party can not afford to transport witnesses to her house on a portion of the land in dispute which they inherited from
testify at the trial) the said order should be set aside. Aleja Glodoveza who in turn inherited it from her mother.
The objection to the effect that if the depositions were taken the court Villareal however refused to vacate the lot when demanded to do so
could not observe the behaviour of the deponents is untenable. repeatedly, claiming co-ownership also by inheritance from their
Otherwise, no deposition could ever be taken, said objection or handicap common ancestor, the mother of Aleja.
being common to all deposition.
Because of the pendency of a protest filed by Villareal to the Director of
It is not claimed that the order complained of sought to avert any of the Lands, the trial was suspended indefinitely on petition of both parties.
evils which Sec16 Rule 29 was meant to prevent or arrest. Moreover,
petitioner was permitted to institute and maintain the case as a pauper. However, plaintiffs new counsel moved for the setting of the case for
As such, she can ill afford to meet the expenses to make, with her trial.
witnesses, the trip or trips from Manila (where Lourdez and Salvador
Motion was granted but for failure of the defendants to appear on the
settled) to Davao, and to stay there for the duration of the hearing.
date set for hearing, plaintiffs were allowed to present their evidence ex-
Hence, the order in question tended, in effect, to deprive her, not only of
parte, after which the trial court decided in favor of the plaintiff.
her right to take the deposition, but also the opportunity to prove her
claim, and consequently, of due process. It is consequently clear that a
Upon MfR, the decision was set aside in order to allow defendant to although petitioners filed an opposition, this was not acted upon by the
present her evidence. trial court before the taking of the deposition.
Defendant offered as part of her evidence the deposition of Apolonia If despite due notice, the counsel for petitioners failed to appear on the
Glodoveza, but it was not admitted by the trial court on the ground that date set for the taking of the deposition, petitioners cannot claim denial
no proof was submitted to show that the witness was so old and infirm as of their right, to cross-examine the deponent.
not to be able to come to court to testify, as contended by plaintiff in
their opposition to the deposition-taking.
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL (RULE 24)
Trial court again ruled in favor of the plaintiffs.
General procedure for depositions before action
CA reversed the trial court ruling, dismissed the complaint, and granted
the counterclaim. 1. petition filed by a party who expects to be a party in an action in the
court of th residence of the expected adverse party
CA held that the rejection by the TC of Apolonias deposition was
erroneous. 2. notice of the petition served on expected adverse party
3. court serves notice of hearing, at least 20 days before, to
HELD a. parties and
Considering that the deposition was taken long after the answer had b. prospective deponents
been filed and served, there was therefore no need to seek the approval
of the TC for the taking of the deposition, notice of such taking being 4. court order
sufficient.
a. designating or describing the persons whose deposition may be
Leave of court for the taking of depositions should be distinguished taken and
from the approval of the court for the use of the depositions taken.
b. specifying the subject matter of the examination and
Although approval of court for the taking of the deposition is not
c. specifying whether the depositions shall be taken upon oral
required because the answer has already been filed and served, the court
examination or written interrogatories.
has discretion to admit or disallow such deposition when offered in
evidence. 5. deposition taken would be admissible in evidence, it may be used in
any action involving the same subject matter subsequently brought
In the instant case, it is not disputed that notice of the deposition-taking
was received by petitioners well before the intended date and that
Section 1. Depositions before action; petition. A person who 4. the facts which he desires to establish by the proposed testimony
desires to perpetuate his own testimony or that of another person and his reasons for desiring to perpetuate it
regarding any matter that may be cognizable in any court of the
Philippines, may file a verified petition in the court of the place of the 5. the names or a description of the persons he expects will be adverse
residence of any expected adverse party. (1a, R134) parties and their addresses so far as known; and
Venue of petition for depositions before action court of the residence of 6. the names and addresses of the persons to be examined and the
any expected adverse party substance of the testimony which he expects to elicit from each
Sec. 2. Contents of petition. The petition shall be entitled in the 7. ask for an order authorizing the petitioner to take the depositions of
name of the petitioner and shall show: (a) that the petitioner expects the persons named to perpetuate their testimony.
to be a party to an action in a court of the Philippines but is presently
Sec. 3. Notice and service. The petitioner shall serve a notice
unable to bring it or cause it to be brought; (b) the subject matter of
upon each person named in the petition as an expected adverse party,
the expected action and his interest therein; (c) the facts which he
together with a copy of the petition, stating that the petitioner will
desires to establish by the proposed testimony and his reasons for
apply to the court, at a time and place named therein, for the order
desiring to perpetuate it; (d) the names or a description of the persons
described in the petition. At least twenty (20) days before the date of
he expects will be adverse parties and their addresses so far as known;
the hearing, the court shall cause notice thereof to be served on the
and (e) the names and addresses of the persons to be examined and
parties and prospective deponents in the manner provided for service
the substance of the testimony which he expects to elicit from each,
of summons. (3a, R134)
and shall ask for an order authorizing the petitioner to take the
depositions of the persons to be examined named in the petition for Sec. 4. Order and examination. If the court is satisfied that the
the purpose of perpetuating their testimony. (2, R134) perpetuation of the testimony may prevent a failure or delay of
justice, it shall make an order designating or describing the persons
Contents of petition for deposition before action
whose deposition may be taken and specifying the subject matter of
1. entitled in the name of petitioner the examination and whether the depositions shall be taken upon oral
examination or written interrogatories. The depositions may then be
2. that the petitioner expects to be a party to an action in a court of the taken in accordance with Rule 23 before the hearing. (4a, R134)
Philippines but is presently unable to
Sec. 5. Reference to court. For the purpose of applying Rule 23
a. bring it or to depositions for perpetuating testimony, each reference therein to
the court in which the action is pending shall be deemed to refer to
b. cause it to be brought the court in which the petition for such deposition was filed. (5a,
R134).
3. the subject matter of the expected action and his interest therein
Sec. 6. Use of deposition. If a deposition to perpetuate b. before the taking of an appeal if the appeal period has not
testimony is taken under this Rule, or if, although not so taken, it expired
would be admissible in evidence, it may be used in any action
involving the same subject matter subsequently brought in 2. party moves for leave to take deposition pending appeal
accordance with the provisions of sections 4 and 5 of Rule 23. (6a,
3. The motion shall state
R134)
a. names and addresses of the persons to be examined and the
Sec. 7. Depositions pending appeal. If an appeal has been taken
substance of the testimony which he expects to elicit from each;
from a judgment of a court, including the Court of Appeals in proper
and
cases, or before the taking of an appeal if the time therefor has not
expired, the court in which the judgment was rendered may allow the b. the reason for perpetuating their testimony.
taking of depositions of witnesses to perpetuate their testimony for
use in the event of further proceedings in the said court. In such case 4. service of notice of hearing on the motion
the party who desires to perpetuate the testimony may make a
5. court finds that the perpetuation of the testimony is proper to avoid
motion in the said court for leave to take the depositions, upon the
a failure or delay of justice
same notice and service thereof as if the action was pending therein.
The motion shall state (a) the names and addresses of the persons to 6. court order allowing the depositions to be taken and used as in
be examined and the substance of the testimony which he expects to depositions pending actions
elicit from each; and (b) the reason for perpetuating their testimony.
If the court finds that the perpetuation of the testimony is proper to
avoid a failure or delay of justice, it may make an order allowing the INTERROGATORIES TO PARTIES (RULE 25)
depositions to be taken, and thereupon the depositions may be taken
and used in the same manner and under the same conditions as are Section 1. Interrogatories to parties; service thereof. Under the
prescribed in these Rules for depositions taken in pending actions. same conditions specified in section 1 of Rule 23, any party desiring to
(7a, R134) elicit material and relevant facts from any adverse parties shall file
and serve upon the latter written interrogatories to be answered by
General procedure for depositions pending appeal the party served or, if the party served is a public or private
corporation or a partnership or association, by any officer thereof
1. Either
competent to testify in its behalf. (1a)
a. appeal has been taken from a judgment of a court (including CA),
cf Rule 23 Sec. 1
or
Section 1. Depositions pending action, when may be taken. By
leave of court after jurisdiction has been obtained over any
defendant or over property which is the subject of the action, or Sec. 3. Objections to interrogatories. Objections to any
without such leave after an answer has been served, xxx. interrogatories may be presented to the court within ten (10) days
after service thereof, with notice as in case of a motion; and answers
Requisites in interrogatories to parties shall be deferred until the objections are resolved, which shall be at as
early a time as is practicable. (3a)
1. Leave of court
Procedure in objections to any interrogatories
a. after jurisdiction has been obtained over any defendant or over
property which is the subject of the action by leave of court 1. presented to the court within ten 10 days after service of the
interrogatories
b. after an answer has been served leave of court not required
2. with notice of hearing
2. file and serve written interrogatories upon
3. answers shall be deferred until the objections are resolved
a. the adverse party, or
Sec. 4. Number of interrogatories. No party may, without leave
b. if the party served is an entity, on an officer competent to testify
of court, serve more than one set of interrogatories to be answered by
in its behalf
the same party. (4)
Sec. 2. Answer to interrogatories. The interrogatories shall be
Service on a party of interrogatories beyond the 1st set must be with
answered fully in writing and shall be signed and sworn to by the
leave of court.
person making them. The party upon whom the interrogatories have
been served shall file and serve a copy of the answers on the party Sec. 5. Scope and use of interrogatories. Interrogatories may
submitting the interrogatories within fifteen (15) days after service relate to any matters that can be inquired into under section 2 of Rule
thereof, unless the court, on motion and for good cause shown, 23, and the answers may be used for the same purposes provided in
extends or shortens the time. (2a) section 4 of the same Rule. (5a)
Requisites for Answer to interrogatories cf Rule 23, Sec. 2
1. answered fully in writing Sec. 2. Scope of examination. xxx the deponent may be
examined regarding any matter, not privileged, which is relevant
2. signed and sworn to by the person making them
to the subject of the pending action, whether relating to the
3. file and serve a copy of the answers on the party submitting the claim or defense of any other party, including the existence,
interrogatories within 15 days after service thereof, unless the court, description, nature, custody, condition, and location of any
on motion and for good cause shown, extends or shortens the time.
books, documents, or other tangible things and the identity and presenting the testimony of witnesses orally in open court, to
location of persons having knowledge of relevant facts. (2, R24) allow the deposition to be used; and
cf Rule 23, Sec. 4 (d) If only part of a deposition is offered in evidence by a party,
the adverse party may require him to introduce all of it which is
Sec. 4. Use of depositions. At the trial or upon the hearing of a relevant to the part introduced, and any party may introduce any
motion or an interlocutory proceeding, any part or all of a other parts. (4a, R24)
deposition, so far as admissible under the rules of evidence, may
be used against any party who was present or represented at the Interrogatories may relate to any matters, not privileged, which is
taking of the deposition or who had due notice thereof, in relevant to the subject of the pending action, whether relating to the
accordance with any one of the following provisions: claim or defense of any other party.
(a) Any deposition may be used by any party for the purpose of The answers may be used for the same purposes as that of depositions
contradicting or impeaching the testimony of deponent as a pending actions.
witness;
Sec. 6. Effect of failure to serve written interrogatories. Unless
(b) The deposition of a party or of any one who at the time of thereafter allowed by the court for good cause shown and to prevent
taking the deposition was an officer, director, or managing agent a failure of justice, a party not served with written interrogatories
of a public or private corporation, partnership, or association may not be compelled by the adverse party to give testimony in open
which is a party may be used by an adverse party for any court, or to give a deposition pending appeal. (n)
purpose;
GR: A party not served with written interrogatories may not be
(c) The deposition of a witness, whether or not a party, may be compelled by the adverse party to give testimony in open court, or to
used by any party for any purpose if the court finds: (1) that the give a deposition pending appeal.
witness is dead; or (2) that the witness resides at a distance more
than one hundred (100) kilometers from the place of trial or Exception: Allowed by the court for good cause shown and to prevent a
hearing, or is out of the Philippines, unless it appears that his failure of justice.
absence was procured by the party offering the deposition; or (3)
that the witness is unable to attend or testify because of age,
REPUBLIC V. SANDIGANBAYAN, G.R. 90478 (1991)
sickness, infirmity, or imprisonment; or (4) that the party offering
the deposition has been unable to procure the attendance of the The field of inquiry that may be covered by depositions or interrogatories
witness by subpoena; or (5) upon application and notice, that is as broad as when the interrogated party is called as a witness to testify
such exceptional circumstances exist as to make it desirable, in orally at trial. The inquiry extends to all facts which are relevant, whether
the interest of justice and with due regard to the importance of they be ultimate or evidentiary, excepting only those matters which are
privileged. The objective is as much to give every party the fullest Requisites for request for admission
possible information of all the relevant facts before the trial as to obtain
evidence for use upon said trial. Either party may compel the other to 1. after issues have been joined
disgorge whatever facts he has in his possession.
2. filed and served upon any other party (not his counsel)
Leave of court is not necessary to avail of said modes of discovery
3. written request for the admission of either
(depositions before action, pending action, pending appeal,
interrogatories to parties, requests for admissions) after an answer to the a. the genuineness of any material and relevant document
complaint has been served. It is only when an answer has not yet been described in and exhibited with the request or
filed (but after jurisdiction has been obtained over the defendant or
property subject of the action) that prior leave of court is needed to avail b. the truth of any material and relevant matter of fact set forth in
of these modes of discovery, the reason being that at that time the issues the request.
are not yet joined and the disputed facts are not clear. On the other
4. Copies of the documents shall be delivered with the request, unless
hand, leave of court is required as regards discovery by (a) production or
copies have already been furnished.
inspection of documents or things, or (b) physical and mental
examination of persons, which may be granted upon due application and Sec. 2. Implied admission. Each of the matters of which an
a showing of due cause. admission is requested shall be deemed admitted unless, within a
period designated in the request, which shall not be less than fifteen
The fact that a motion for bill of particulars on the same matter has been
(15) days after service thereof, or within such further time as the court
denied is not ground to deny a resort to modes of discovery. A bill of
may allow on motion, the party to whom the request is directed files
particulars may elicit only ultimate facts, not evidentiary facts, but
and serves upon the party requesting the admission a sworn
modes of discovery can elicit evidentiary facts. That interrogatories deal
statement either denying specifically the matters of which an
with factual matters is not ground to deny it.
admission is requested or setting forth in detail the reasons why he
cannot truthfully either admit or deny those matters.
ADMISSION BY ADVERSE PARTY (RULE 26) Objections to any request for admission shall be submitted to the
court by the party requested within the period for and prior to the
Section 1. Request for admission. At any time after issues have
filing of his sworn statement as contemplated in the preceding
been joined, a party may file and serve upon any other party a written
paragraph and his compliance therewith shall be deferred until such
request for the admission by the latter of the genuineness of any
objections are resolved, which resolution shall be made as early as
material and relevant document described in and exhibited with the
practicable. (2a)
request or of the truth of any material and relevant matter of fact set
forth in the request. Copies of the documents shall be delivered with Requisites for avoiding implied admission
the request unless copies have already been furnished. (1a)
1. within a period de Leon: This is an exception to extra-judicial admissions under Rule 130,
Sec. 26
a. designated in the request, which shall not be less than 15 days
after service thereof, or Sec. 26. Admissions of a party. - The act, declaration or omission
of a party as to a relevant fact may be given in evidence against
b. such further time as the court may allow on motion him. (22)
2. files and serves upon the requesting party a sworn statement Sec. 4. Withdrawal. The court may allow the party making an
admission under this Rule, whether express or implied, to withdraw
3. either
or amend it upon such terms as may be just. (4)
a. denying specifically the matters of which an admission is
The court may allow the party making an admission, whether express or
requested or
implied, to withdraw or amend it upon such terms as may be just.
b. setting forth in detail the reasons why he cannot truthfully either
Sec. 5. Effect of failure to file and serve request for admission.
admit or deny those matters.
Unless otherwise allowed by the court for good cause shown and to
Objections to any request for admission shall be submitted to the court prevent a failure of justice, a party who fails to file and serve a request
within the period for and prior to the filing of his sworn statement. His for admission on the adverse party of material and relevant facts at
compliance therewith shall be deferred until such objections are issue which are, or ought to be, within the personal knowledge of the
resolved. latter, shall not be permitted to present evidence on such facts. (n)
Note that in interrogatories to parties, the period to answer is 15 days, GR: A party who fails to file and serve a request for admission of material
but the period to object is only 10. In request for admissions, the period and relevant facts at issue which are, or ought to be, within the personal
to answer and object is the same (15 days). knowledge of the latter, shall not be permitted to present evidence on
such facts.
Sec. 3. Effect of admission. Any admission made by a party
pursuant to such request is for the purpose of the pending action only Exception: Allowed by the court for good cause shown and to prevent a
and shall not constitute an admission by him for any other purpose failure of justice.
nor may the same be used against him in any other proceeding. (3)
Any admission pursuant to such request is for the purpose of the pending BRIBONERIA V. CA, G.R. 101682, (1992)
action only and shall not constitute an admission by him for any other
Request for admission must be served directly upon the party, not his
purpose nor may the same be used against him in any other proceeding.
counsel. Failure to file answer a requestion for admission is not deemed
an admission where request for admission was served on counsel.
Furthermore, a party should not be compelled to admit matters of fact d. which constitute or contain evidence material to any matter
already admitted by his pleading and concerning which there is no issue, involved in the action
nor should he be required to make a second denial of those already
denied in his answer to the complaint. e. which are in his possession, custody or control
2. order any party

PRODUCTION OR INSPECTION OF DOCUMENTS OF THINGS (RULE 27) a. to permit entry
Section 1. Motion for production or inspection; order. Upon b. upon designated land or other property
motion of any party showing good cause therefor, the court in which
an action is pending may (a) order any party to produce and permit c. in his possession or control
the inspection and copying or photographing, by or on behalf of the
d. for the purpose of inspecting, measuring, surveying, or
moving party, of any designated documents, papers, books,
photographing
accounts, letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence material to any e. the property or any designated relevant object or operation
matter involved in the action and which are in his possession, custody thereon.
or control; or (b) order any party to permit entry upon designated land
or other property in his possession or control for the purpose of The order shall specify the time, place and manner of making the
inspecting, measuring, surveying, or photographing the property or inspection and taking copies and photographs, and may prescribe such
any designated relevant object or operation thereon. The order shall terms and conditions as are just.
specify the time, place and manner of making the inspection and
taking copies and photographs, and may prescribe such terms and Subpoena duces tecum Court order for production
conditions as are just. (1a)
Item is brought to court Item is not brought to c
Upon motion of any party showing good cause therefor, the court in permit inspection or entry b
which an action is pending may
Can not cover land Could cover lands
1. order any party
Must be presented as evidence in court Need not be presented in e
a. to produce and permit the inspection and copying or
cf Rule 8, Sec. 8
photographing
Sec. 8. How to contest such documents. When an action or
b. of any designated documents or tangible things
defense is founded upon a written instrument, copied in or
c. not privileged attached to the corresponding pleading as provided in the
preceding section, the genuineness and due execution of the 5. the court in which the action is pending orders him to submit to a
instrument shall be deemed admitted unless the adverse party, physical or mental examination
under oath, specifically denies them, and sets forth what he
claims to be the facts; but the requirement of an oath does not Sec. 3. Report of findings. If requested by the party examined,
apply when the adverse party does not appear to be a party to the party causing the examination to be made shall deliver to him a
the instrument or when compliance with an order for an copy of a detailed written report of the examining physician setting
inspection of the original instrument is refused. (8a) out his findings and conclusions. After such request and delivery, the
party causing the examination to be made shall be entitled upon
request to receive from the party examined a like report of any
PHYSICAL AND MENTAL EXAMINATION OF PERSONS (RULE 28) examination, previously or thereafter made, of the same mental or
physical condition. If the party examined refuses to deliver such
Section 1. When examination may be ordered. In an action in report, the court on motion and notice may make an order requiring
which the mental or physical condition of a party is in controversy, delivery on such terms as are just, and if a physician fails or refuses to
the court in which the action is pending may in its discretion order him make such a report the court may exclude his testimony if offered at
to submit to a physical or mental examination by a physician. (1) the trial. (3a)
Sec. 2. Order for examination. The order for examination may If requested by the party examined, the party causing the examination to
be made only on motion for good cause shown and upon notice to the be made shall deliver to him a copy of a detailed written report of the
party to be examined and to all other parties, and shall specify the examining physician setting out his findings and conclusions.
time, place, manner, conditions and scope of the examination and the
person or persons by whom it is to be made. (2) After such request and delivery, the party causing the examination to be
made shall be entitled upon request to receive from the party examined a
Requisites for a mental or physical examination like report of any examination, previously or thereafter made, of the
same mental or physical condition.
1. the mental or physical condition of a party is in controversy in the
action If the party examined refuses to deliver such report, the court on motion
and notice may make an order requiring delivery on such terms as are
2. on motion for good cause shown just.
3. upon notice to all parties If a physician fails or refuses to make such a report, the court may
exclude his testimony if offered at the trial.
4. notice shall specify the time, place, manner, conditions and scope of
the examination and the person or persons by whom it is to be made Sec. 4. Waiver of privilege. By requesting and obtaining a report
of the examination so ordered or by taking the deposition of the
examiner, the party examined waives any privilege he may have in
that action or any other involving the same controversy, regarding If the application is denied and the court finds that it was filed
the testimony of every other person who has examined or may without substantial justification, the court may require the proponent
thereafter examine him in respect of the same mental or physical or the counsel advising the filing of the application, or both of them,
examination. (4) to pay to the refusing party or deponent the amount of the
reasonable expenses incurred in opposing the application, including
The party examined waives any privilege he may have in that action or attorneys fees. (1a)
any other involving the same controversy, regarding the testimony of
every other person who has examined or may thereafter examine him Sec. 2. Contempt of court. If a party or other witness refuses to
be sworn or refuses to answer any question after being directed to do
1. By requesting and obtaining a report of the examination so ordered so by the court of the place in which the deposition is being taken, the
or refusal may be considered a contempt of that court. (2a)
2. by taking the deposition of the examiner If a party or other deponent refuses to answer any question upon oral
examination, or interrogatory
REFUSAL TO COMPLY WITH MODES OF DISCOVERY 1. as the proponent of the question may prefer, the examination may
be
RULE 29
a. completed on other matters or
Section 1. Refusal to answer. If a party or other deponent
refuses to answer any question upon oral examination, the b. adjourned.
examination may be completed on other matters or adjourned as the
proponent of the question may prefer. The proponent may thereafter 2. The proponent may thereafter apply to the proper court of the place
apply to the proper court of the place where the deposition is being where the deposition is being taken, for an order to compel an
taken, for an order to compel an answer. The same procedure may be answer.
availed of when a party or a witness refuses to answer any
interrogatory submitted under Rules 23 or 25. 3. If the application is
a. Granted the court shall require the refusing party or deponent

If the application is granted, the court shall require the refusing
to answer the question or interrogatory; if the refusal to answer
party or deponent to answer the question or interrogatory and if it
was without substantial justification, it may require the refusing
also finds that the refusal to answer was without substantial
justification, it may require the refusing party or deponent or the party or deponent or the counsel advising the refusal, or both of
counsel advising the refusal, or both of them, to pay the proponent them, to pay the proponent the amount of the reasonable
the amount of the reasonable expenses incurred in obtaining the expenses incurred in obtaining the order, including attorneys
order, including attorneys fees. fees.
b. denied and the court finds that it was filed without substantial (c) An order striking out pleadings or parts thereof, or staying
justification the court may require the proponent or the counsel further proceedings until the order is obeyed, or dismissing the action
advising the filing of the application, or both of them, to pay to or proceeding or any part thereof, or rendering a judgment by default
the refusing party or deponent the amount of the reasonable against the disobedient party; and)
expenses incurred in opposing the application, including
attorneys fees. (d) In lieu of any of the foregoing orders or in addition thereto, an
order directing the arrest of any party or agent of a party for
4. If a party or other witness refuses to be sworn or refuses to answer disobeying any of such orders except an order to submit to a physical
any question after being directed to do so by the court of the place in or mental examination. (3a)
which the deposition is being taken, the refusal may be considered a
contempt of that court. If any party or an officer or managing agent of a party refuses to obey an
order made requiring him to answer designated questions, or an order to
Sec. 3. Other consequences. If any party or an officer or produce any document or other thing for inspection, copying, or
managing agent of a party refuses to obey an order made under photographing or to permit it to be done, or to permit entry upon land or
section 1 of this Rule requiring him to answer designated questions, other property, or an order requiring him to submit to a physical or
or an order under Rule 27 to produce any document or other thing for mental examination, the court may make such orders in regard to the
inspection, copying, or photographing or to permit it to be done, or to refusal as are just, and among others the following
permit entry upon land or other property, or an order made under
Rule 28 requiring him to submit to a physical or mental examination, 1. An order that the matters involved in the order shall be taken to be
the court may make such orders in regard to the refusal as are just, established for the purposes of the action in accordance with the
and among others the following: claim of the party obtaining the order
(a) An order that the matters regarding which the questions were 2. An order refusing to allow the disobedient party to support or oppose
asked, or the character or description of the thing or land, or the designated claims or defenses or prohibiting him from introducing in
contents of the paper, or the physical or mental condition of the evidence designated documents or things or items of testimony, or
party, or any other designated facts shall be taken to be established from introducing evidence of physical or mental condition
for the purposes of the action in accordance with the claim of the
3. An order striking out pleadings or parts thereof, or staying further
party obtaining the order;
proceedings until the order is obeyed, or dismissing the action or
(b) An order refusing to allow the disobedient party to support or proceeding or any part thereof, or rendering a judgment by default
oppose designated claims or defenses or prohibiting him from against the disobedient party
introducing in evidence designated documents or things or items of
4. an order directing the arrest of any party or agent of a party for
testimony, or from introducing evidence of physical or mental
disobeying any of such orders, except an order to submit to a
condition;
physical or mental examination.
de Leon: Note that the court may not compel a party to submit to under Rule 25 after proper service of such interrogatories, the court
physical or mental examination. on motion and notice, may strike out all or any part of any pleading of
that party, or dismiss the action or proceeding or any part thereof, or
Sec. 4. Expenses on refusal to admit. If a party after being enter a judgment by default against that party, and in its discretion,
served with a request under Rule 26 to admit the genuineness of any order him to pay reasonable expenses incurred by the other, including
document or the truth of any matter of fact, serves a sworn denial attorneys fees. (5)
thereof and if the party requesting the admissions thereafter proves
the genuineness of such document or the truth of any such matter of If a party or an officer or managing agent of a party willfully
fact, he may apply to the court for an order requiring the other party
to pay him the reasonable expenses incurred in making such proof, 1. either
including attorneys fees. Unless the court finds that there were good
a. fails to appear before the officer who is to take his deposition,
reasons for the denial or that admissions sought were of no
after being served with a proper notice, or
substantial importance, such order shall be issued. (4a)
b. fails to serve answers to interrogatories submitted after proper
When party may be required to pay the other the reasonable expenses
service of such interrogatories
incurred in making proof, including attorneys fees
2. the court on motion and notice may
1. party is served with a request to admit the genuineness of any
document or the truth of any matter of fact a. may strike out all or any part of any pleading of that party, or
2. party serves a sworn denial thereof b. dismiss the action or proceeding or any part thereof, or
3. the party requesting the admissions thereafter proves the c. enter a judgment by default against that party,
genuineness of such document or the truth of any such matter of fact
d. order him to pay reasonable expenses incurred by the other,
4. the court finds including attorneys fees.
a. no good reasons for the denial or Sec. 6. Expenses against the Republic of the Philippines.
Expenses and attorneys fees are not to be imposed upon the
b. the admissions sought were of substantial importance
Republic of the Philippines under this Rule. (6)
Sec. 5. Failure of party to attend or serve answers. If a party or
Expenses and attorneys fees are not to be imposed upon the Republic of
an officer or managing agent of a party wilfully fails to appear before
the Philippines.
the officer who is to take his deposition, after being served with a
proper notice, or fails to serve answers to interrogatories submitted CASE
KOH V. IAC, 144 SCRA (1986) Adjournment v. Postponement
Recourse to discovery procedures is not, and may not be made Sec. 3. Requisites of motion to postpone trial for absence of
mandatory. If the parties do not choose to resort to such procedures, the evidence. - A motion to postpone a trial on the ground of absence of
pre-trial conference should be set. evidence can be granted only upon affidavit showing the materiality
or relevancy of such evidence, and that due diligence has been used to
procure it. But if the adverse party admits the facts to be given in
TRIAL (RULE 30-32) evidence, even if he objects or reserves the right to object to their
admissibility, the trial shall not be postponed. (4a, R22)
TRIAL Requisites for granting a motion to postpone trial for absence of

evidence
RULE 30
1. affidavit showing
Section 1. Notice of trial. Upon entry of a case in the trial
calendar, the clerk shall notify the parties of the date of its trial in a. the materiality or relevancy of such evidence, and
such manner as shall ensure his receipt of that notice at least five (5)
days before such date. (2a, R22) b. due diligence has been used to procure it.
Sec. 2. Adjournments and postponements. A court may adjourn 2. adverse party does not admit to the facts to be given in evidence
a trial from day to day, and to any stated time, as the expeditious and If the adverse party admits the facts to be given in evidence, even if he
convenient transaction of business may require, but shall have no objects or reserves the right to object to their admissibility, the trial shall
power to adjourn a trial for a longer period than one month for each proceed.
adjournment, nor more than three months in all, except when
authorized in writing by the Court Administrator, Supreme Court. (3a, Sec. 4. Requisites of motion to postpone trial for illness of party or
R22) counsel. A motion to postpone a trial on the ground of illness of a
party or counsel may be granted if it appears upon affidavit or sworn
A court may adjourn a trial from day to day, and to any stated time, but certification that the presence of such party or counsel at the trial is
not more than indispensable and that the character of his illness is such as to render
1. 1 month for each adjournment, and his non-attendance excusable. (5a, R22)
2. 3 months in all, except when authorized in writing by the Court Requisites of motion to postpone trial for illness of party or counsel
Administrator, Supreme Court. affidavit or sworn certification that
1. the presence of such party or counsel at the trial is indispensable and

2. the character of his illness is such as to render his non-attendance cf Rule 31, Sec. 2
excusable.
Sec. 2. Separate trials. The court, in furtherance of
Sec. 5. Order of trial. Subject to the provisions of section 2 of convenience or to avoid prejudice, may order a separate trial of
Rule 31, and unless the court for special reasons otherwise directs, the any claim, cross-claim, counterclaim, or third-party complaint, or
trial shall be limited to the issues stated in the pre-trial order and shall of any separate issue or of any number of claims, cross-claims,
proceed as follows: counterclaims, third-party complaints or issues. (2a)
(a) The plaintiff shall adduce evidence in support of his complaint; GR: Order of trial the trial shall be limited to the issues stated in the
pre-trial order and shall proceed as follows
(b) The defendant shall then adduce evidence in support of his
defense, counterclaim, cross-claim and third-party complaint; 1. plaintiff shall adduce evidence in support of his complaint
(c) The third-party defendant, if any, shall adduce evidence of his 2. defendant shall then adduce evidence in support of his defense,
defense, counterclaim, cross-claim and fourth-party complaint; counterclaim, cross-claim and third-party complaint
(d) The fourth-party, and so forth, if any, shall adduce evidence of 3. third-party defendant, if any, shall adduce evidence of his defense,
the material facts pleaded by them; counterclaim, cross-claim and fourth-party complaint;
(e) The parties against whom any counterclaim or cross-claim has 4. fourth-party, and so forth, if any, shall adduce evidence of the
been pleaded, shall adduce evidence in support of their defense, in material facts pleaded by them;
the order to be prescribed by the court;
5. parties against whom any counterclaim or cross-claim has been
(f) The parties may then respectively adduce rebutting evidence pleaded, shall adduce evidence in support of their defense, in the
only, unless the court, for good reasons and in the furtherance of order to be prescribed by the court;
justice, permits them to adduce evidence upon their original case; and
6. The parties may then respectively adduce rebutting evidence only,
(g) Upon admission of the evidence, the case shall be deemed unless the court, for good reasons and in the furtherance of justice,
submitted for decision, unless the court directs the parties to argue or permits them to adduce evidence upon their original case; and
to submit their respective memoranda or any further pleadings.
7. Upon admission of the evidence, the case shall be deemed submitted
If several defendants or third-party defendants, and so forth, for decision, unless the court directs the parties to argue or to submit
having separate defenses appear by different counsel, the court shall their respective memoranda or any further pleadings.
determine the relative order of presentation of their evidence. (1a,
R30) Exceptions to the order of trial
1. when separate trial of any claim or issue is ordered GR: The judge shall personally receive the evidence to be adduced by the
parties.
2. court otherwise directs for special reasons
Exceptions: the court may delegate the reception of evidence to its clerk
3. as determined by the court in case of several defendants or third- of court who is a member of the bar
party defendants, and so forth, having separate defenses who appear
by different counsel 1. in default
Sec. 6. Agreed statement of facts. The parties to any action may 2. ex parte hearings
agree, in writing, upon the facts involved in the litigation, and submit
the case for judgment on the facts agreed upon, without the 3. where the parties agree in writing
introduction of evidence.
The clerk of court shall have no power to rule on objections. The
If the parties agree only on some of the facts in issue, the trial objections shall be resolved by the court upon submission of his report
shall be held as to the disputed facts in such order as the court shall and the transcripts within 10 days from termination of the hearing.
prescribe. (2a, R30)
CASES
Sec. 7. Statement of judge. During the hearing or trial of a case
any statement made by the judge with reference to the case, or to YU V. MAPAYO, 44 SCRA 163 (1972)
any of the parties, witnesses or counsel, shall be made of record in the
stenographic notes. (3a, R30) Where the answer admitted the defendant's obligation as stated in the
complaint, albeit special defenses were pleaded, plaintiff need not
Sec. 8. Suspension of actions. The suspension of actions shall be present evidence in support of his claim. The burden is on the defense to
governed by the provisions of the Civil Code. (n) prove its special defenses. Where evidence for the plaitiff eventually was
to be presented ex parte, the court can not compel the plaintiff to
Sec. 9. Judge to receive evidence; delegation to clerk of court. present evidence. Failure of the defendant to prove his special defenses
The judge of the court where the case is pending shall personally should result in a ruling for the plaintiff.
receive the evidence to be adduced by the parties. However, in
default or ex parte hearings, and in any case where the parties agree Escolin: Even in criminal cases, the order of trial may also be reversed,
in writing, the court may delegate the reception of evidence to its e.g. when the accuseds defense is self-defense.
clerk of court who is a member of the bar. The clerk of court shall have
no power to rule on objections to any question or to the admission of
exhibits, which objections shall be resolved by the court upon WASSMER V. VELEZ, 12 SCRA 648 (1964)
submission of his report and the transcripts within ten (10) days from Where defendant had been declared in default, his consent to the
termination of the hearing. (n) designation of reception of evidence to the clerk of court is not required.
Escolin: The Lim Tanhu case prohibiting the delegation of the power to 3. any number of claims, cross-claims, counterclaims, third-party
receive evidence on clerks of court has been repealed by Sec. 9, Rule 30, complaints or issues
of the 1997 Rules of Civil Procedure.
In these cases the court may hold a separate for each cause of action, the
render judgment after hearing each cause of action. An appeal may not
CONSOLIDATION OR SEVERANCE (RULE 31) be filed until all causes of action has been heard.
Section 1. Consolidation. When actions involving a common cf Rule 2, Sec. 5

question of law or fact are pending before the court, it may order a
Sec. 5. Joinder of causes of action. A party may in one pleading
joint hearing or trial of any or all the matters in issue in the actions; it
assert, in the alternative or otherwise, as many causes of action
may order all the actions consolidated; and it may make such orders
as he may have against an opposing party, subject to the
concerning proceedings therein as may tend to avoid unnecessary
following conditions:
costs or delay. (1)
(a) The party joining the causes of action shall comply with the
Options of the court when actions involving a common question of law
rules on joinder of parties;
OR fact are pending before the court
(b) The joinder shall not include special civil actions or actions
1. it may order a joint hearing or trial of any or all the matters in issue
governed by special rules;
2. it may order all the actions consolidated
(c) Where the causes of action are between the same parties but
3. it may make such orders concerning proceedings therein as may tend pertain to different venues or jurisdictions, the joinder may be
to avoid unnecessary costs or delay allowed in the Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and the venue lies
Sec. 2. Separate trials. The court, in furtherance of convenience therein; and
or to avoid prejudice, may order a separate trial of any claim, cross-
claim, counterclaim, or third-party complaint, or of any separate issue (d) Where the claims in all the causes of action are principally for
or of any number of claims, cross-claims, counterclaims, third-party recovery of money, the aggregate amount claimed shall be the
complaints or issues. (2a) test of jurisdiction. (5a)
The court, in furtherance of convenience or to avoid prejudice, may order

a separate trial of SUPERLINES V. VICTOR, G.R. L-64250 (1983)
Considerations of judicial economy and administration, as well as the
1. any claim, cross-claim, counterclaim, or third-party complaint, or
convenience of the parties, dictate that it is the Cavite court, rather than
2. any separate issue or the Quezon court, which serves as the more suitable forum for the
determination of the rights and obligations of the parties concerned. To 7. refusal of a witness to obey a subpoena issued by the commissioner
require plaintiffs who are all residents of Kawit, Cavite, to litigate their or to give evidence before him, shall be deemed a contempt of the
claims in the Quezon Court would unnecessarily expose them to court which appointed the commissioner
considerable expenses. On the other hand, no like prejudice would befall
the defendants transportation companies if they were required to plead 8. commissioner should proceed with all reasonable diligence; either
their causes in Cavite, for such change of venue would not expose them party, on notice to the parties and commissioner, may apply to the
to expenses which are not already liable to incur in connection with the court for an order requiring the commissioner to expedite the
Quezon case. proceedings and to make his report
9. commissioner files with the court his report in writing

TRIAL BY COMMISSIONER a. upon the matters submitted to him by the order of reference
Procedure in Trial by Commissioner b. attach thereto all exhibits, affidavits, depositions, papers and the
transcript, if any, of the testimonial evidence presented before
1. court orders reference to a commissioner
him
2. clerk furnishes the commissioner with a copy of the order of
c. When his powers are not specified or limited, he shall set forth
reference
his findings of fact and conclusions of law in his report
3. commissioner takes an oath, swearing to a faithful and honest
10. Upon the filing of the report, the parties shall be notified by the clerk,
performance of his duties
and they shall be allowed 10 days within which to signify grounds of
4. commissioner sets and notifies the parties or their counsel a time and objections.
place for their first meeting to be held within 10 days after the date of
11. The report shall be set for hearing.
the order of reference
12. When the parties stipulate that a commissioners findings of fact
5. The trial or hearing before him shall proceed in all respects as it
shall be final, only questions of law shall thereafter be considered.
would if held before the court.
13. The court orders
6. Failure of parties to appear commissioner may
a. Adopting
a. proceed ex parte or
b. modifying, or
b. adjourn the proceedings to a future day, giving notice to the
absent party or his counsel of the adjournment c. rejecting the report in whole or in part, or
d. recommitting it with instructions, or (b) When the taking of an account is necessary for the information
of the court before judgment, or for carrying a judgment or order into
e. requiring the parties to present further evidence before the effect;
commissioner or the court.
(c) When a question of fact, other than upon the pleadings, arises
RULE 32 upon motion or otherwise, in any stage of a case, or for carrying a
Section 1. Reference by consent. By written consent of both judgment or order into effect. (2a, R33)
parties, the court may order any or all of the issues in a case to be
When reference may be ordered
referred to a commissioner to be agreed upon by the parties or to be
appointed by the court. As used in these Rules, the word 1. the trial of an issue of fact requires the examination of a long account
"commissioner" includes a referee, an auditor and an examiner. (1a, on either side the commissioner may be directed to hear and report
R33) upon the whole issue or any specific question involved therein
Procedure in Reference by consent 2. the taking of an account is necessary for the information of the court
before judgment, or for carrying a judgment or order into effect
1. written consent of both parties
3. a question of fact, other than upon the pleadings, arises upon motion
2. court order any or all of the issues in a case to be referred
or otherwise, in any stage of a case, or for carrying a judgment or
3. to a commissioner, referee, auditor or examiner order into effect
a. to be agreed upon by the parties or Sec. 3. Order of reference; powers of the commissioner. When a
reference is made, the clerk shall forthwith furnish the commissioner
b. to be appointed by the court with a copy of the order of reference. The order may specify or limit
the powers of the commissioner, and may direct him to report only
Sec. 2. Reference ordered on motion. When the parties do not upon particular issues, or to do or perform particular acts, or to
consent, the court may, upon the application of either or of its own receive and report evidence only, and may fix the date for beginning
motion, direct a reference to a commissioner in the following cases: and closing the hearings and for the filing of his report. Subject to the
(a) When the trial of an issue of fact requires the examination of a specifications and limitations stated in the order, the commissioner
long account on either side, in which case the commissioner may be has and shall exercise the power to regulate the proceedings in every
directed to hear and report upon the whole issue or any specific hearing before him and to do all acts and take all measures necessary
question involved therein; or proper for the efficient performance of his duties under the order.
He may issue subpoenas and subpoenas duces tecum, swear
witnesses, and unless otherwise provided in the order of reference, he
may rule upon the admissibility of evidence. The trial or hearing
before him shall proceed in all respects as it would if held before the 5. rule upon the admissibility of evidence, unless otherwise provided in
court. (3a, R33) the order of reference
When a reference is made, the clerk shall forthwith furnish the Note that unlike the deposition officers, and clerks of court who has been
commissioner with a copy of the order of reference. The trial or hearing delegated power to receive evidence, who have no power to rule on
before him shall proceed in all respects as it would if held before the admissibility of evidence, commissioners can rule on the admissibility of
court. evidence, but subject to contrary provision in the order of reference.
The order may Sec. 4. Oath of commissioner. Before entering upon his duties
the commissioner shall be sworn to a faithful and honest performance
1. specify or limit the powers of the commissioner thereof. (14, R33)
2. direct him to Sec. 5. Proceedings before commissioner. Upon receipt of the
order of reference and unless otherwise provided therein, the
a. report only upon particular issues
commissioner shall forthwith set a time and place for the first
b. do or perform particular acts meeting of the parties or their counsel to be held within ten (10) days
after the date of the order of reference and shall notify the parties or
c. receive and report evidence only their counsel. (5a, R33)
3. fix the date for Sec. 6. Failure of parties to appear before commissioner. If a
party fails to appear at the time and place appointed, the
a. beginning and closing the hearings and
commissioner may proceed ex parte or, in his discretion, adjourn the
b. for the filing of his report. proceedings to a future day, giving notice to the absent party or his
counsel of the adjournment. (6a, R33)
4. specify and limit the powers of the commissioner
Sec. 7. Refusal of witness. The refusal of a witness to obey a
Powers of the commissioner subpoena issued by the commissioner or to give evidence before him,
shall be deemed a contempt of the court which appointed the
1. to regulate the proceedings in every hearing before him commissioner. (7a, R33)
2. to do all acts and take all measures necessary or proper for the Sec. 8. Commissioner shall avoid delays. It is the duty of the
efficient performance of his duties under the order. commissioner to proceed with all reasonable diligence. Either party,
3. may issue subpoenas and subpoenas duces tecum, on notice to the parties and commissioner, may apply to the court for
an order requiring the commissioner to expedite the proceedings and
4. swear witnesses to make his report. (8a, R33)
Sec. 9. Report of commissioner. Upon the completion of the trial Sec. 13. Compensation of commissioner. The court shall allow
or hearing or proceeding before the commissioner, he shall file with the commissioner such reasonable compensation as the
the court his report in writing upon the matters submitted to him by circumstances of the case warrant, to be taxed as costs against the
the order of reference. When his powers are not specified or limited, defeated party, or apportioned, as justice requires. (13, R33)
he shall set forth his findings of fact and conclusions of law in his
report. He shall attach thereto all exhibits, affidavits, depositions, CASE
papers and the transcript, if any, of the testimonial evidence
presented before him. (9a, R33) WASSMER V. VELEZ, 12 SCRA 648 (1964)
Sec. 10. Notice to parties of the filing of report. Upon the filing Where defendant had been declared in default, his consent to the
of the report, the parties shall be notified by the clerk, and they shall designation of reception of evidence to a commissioner is not required.
be allowed ten (10) days within which to signify grounds of objections
to the findings of the report, if they so desire. Objections to the report
based upon grounds which were available to the parties during the JUDGMENT (RULE 33-36)
proceedings before the commissioner, other than objections to the
findings and conclusions therein set forth, shall not be considered by
the court unless they were made before the commissioner. (10, R33) DEMURRER TO EVIDENCE
Objections to the report based upon grounds which were available to the RULE 33
parties during the proceedings before the commissioner, other than
objections to the findings and conclusions therein set forth, shall not be Section 1. Demurrer to evidence.
considered by the court unless they were made before the commissioner.
After the plaintiff has completed the presentation of his evidence, the
Sec. 11. Hearing upon report. Upon the expiration of the period defendant may move for dismissal on the ground that upon the facts
of ten (10) days referred to in the preceding section, the report shall and the law the plaintiff has shown no right to relief.
be set for hearing, after which the court shall issue an order adopting,
If his motion is denied, he shall have the right to present evidence. If
modifying, or rejecting the report in whole or in part, or recommitting
the motion is granted but on appeal the order of dismissal is reversed
it with instructions, or requiring the parties to present further
he shall be deemed to have waived the right to present evidence. (1a,
evidence before the commissioner or the court. (11a, R33)
R35)
Sec. 12. Stipulations as to findings. When the parties stipulate
Ground for demurrer to evidence in civil cases upon the facts and the
that a commissioners findings of fact shall be final, only questions of
law the plaintiff has shown no right to relief
law shall thereafter be considered. (12a, R33)
Dismissal on demurrer to evidence in civil cases is always on motion.
In civil cases, if MTD on demurrer to evidence is The order denying the motion for leave of court to file demurrer
to evidence or the demurrer itself shall not be reviewable by
1. denied movant has right to present evidence appeal or by certiorari before judgment. (n)
2. granted, but reversed on appeal movant deemed to have waived Ground for MTD on demurrer to evidence in criminal cases insufficiency
his right to present evidence of evidence
cf Rule 119, Sec. 23, 2000 Rules on Criminal Procedure Dismissal on demurrer to evidence in criminal cases may be
Sec. 23. Demurrer to evidence. After the prosecution rests its 1. motu proprio, with hearing
case, the court may dismiss the action on the ground of
insufficiency of evidence (1) on its own initiative after giving the 2. upon motion
prosecution the opportunity to be heard or (2) upon demurrer to
evidence filed by the accused with or without leave of court. In criminal cases, if MTD on demurrer to evidence is denied
If the court denies the demurrer to evidence filed with leave of 1. when filed with leave of court accused may adduce evidence in his
court, the accused may adduce evidence in his defense. When defense
the demurrer to evidence is filed without leave of court, the
2. when filed without leave of court accused waives the right to
accused waives the right to present evidence and submits the
present evidence and submits the case for judgment on the basis of
case for judgment on the basis of the evidence for the
the evidence for the prosecution
prosecution. (15a)
de Leon: What if in criminal cases, the demurrer is filed with leave of
The motion for leave of court to file demurrer to evidence shall
court, granted but reversed on appeal?
specifically state its grounds and shall be filed within a non-
extendible period of five (5) days after the prosecution rests its DISTINGUISH DEMURRER TO EVIDENCE IN CIVIL AND CRIMINAL
case. The prosecution may oppose the motion within a non- CASES (RULE 119, SEC. 18)
extendible period of five (5) days from its receipt.
Demurrer to Demurrer to
If leave of court is granted, the accused shall file the demurrer to Evidence in Civil
Evidence in Criminal
evidence within a non-extendible period of ten (10) days from Cases Cases
notice. The prosecution may oppose the demurrer to evidence
within a similar period from its receipt. Ground is: Facts and ground is:
law show no right to Insufficient
relief evidence
On motion On motion or motu Where the defendant fails to specifically deny the material averment in
proprio the complaint other than those as to the amount of unliquidated
damages, such shall be deemed admitted and will be a ground for
If denied he has If denied and MTD judgment on the pleadings. cf Rule 8, Sec. 11
right to present was filed without
evidence, no prior leave of court Sec. 11. Allegations not specifically denied deemed admitted.
leave of court waiver of right to Material averment in the complaint, other than those as to the
required; If granted present evidence; amount of unliquidated damages, shall be deemed admitted
but reversed on If denied and MTD when not specifically denied. xxx
appeal it is a waiver was filed with
of the right to leave of court the SUMMARY JUDGMENTS (RULE 35)
present evidence accused may Section 1. Summary judgment for claimant. A party seeking to
adduce evidence in recover upon a claim, counterclaim, or cross-claim or to obtain a
his defense declaratory relief may, at any time after the pleading in answer
thereto has been served, move with supporting affidavits, depositions
or admissions for a summary judgment in his favor upon all or any
part thereof. (1a, R34)
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENTS Requisites for a Summary judgment for claimant
JUDGMENT ON THE PLEADINGS (RULE 34) 1. A party seeking to recover upon a claim, counterclaim, or cross-claim
Section 1. Judgment on the pleadings. Where an answer fails to or to obtain a declaratory relief
tender an issue, or otherwise admits the material allegations of the 2. at any time after the pleading in answer thereto has been served
adverse partys pleading, the court may, on motion of that party,
direct judgment on such pleading. However, in actions for declaration 3. move with supporting affidavits, depositions or admissions for a
of nullity or annulment of marriage or for legal separation, the summary judgment in his favor
material facts alleged in the complaint shall always be proved. (1a,
R19) Sec. 2. Summary judgment for defending party. A party against
whom a claim, counterclaim, or cross-claim is asserted or a
Grounds for judgment on the pleadings declaratory relief is sought may, at any time, move with supporting
affidavits, depositions or admissions for a summary judgment in his
1. answer fails to tender an issue, or favor as to all or any part thereof. (2a, R34)
2. admits the material allegations of the adverse partys pleading Requisites for a Summary judgment for defending party
1. A party against whom a claim, counterclaim, or cross-claim is controverted. It shall thereupon make an order specifying the facts
asserted or a declaratory relief is sought that appear without substantial controversy, including the extent to
which the amount of damages or other relief is not in controversy,
2. at any time and directing such further proceedings in the action as are just. The
facts so specified shall be deemed established, and the trial shall be
3. move with supporting affidavits, depositions or admissions for a
conducted on the controverted facts accordingly. (4a, R34)
summary judgment in his favor
Procedure in summary judgments
If summary judgment is sought by the
1. motion served at least 10 days before the time specified for the
1. claimant, he must move after the pleading in answer to his claim has
hearing
been served
2. any opposing affidavits, depositions, or admissions must be served
2. defending party, he may move any time
by the adverse party at least 3 days before the hearing
Sec. 3. Motion and proceedings thereon. The motion shall be
3. hearing
served at least ten (10) days before the time specified for the hearing.
The adverse party may serve opposing affidavits, depositions, or 4. judgment sought shall be rendered forthwith if the pleadings,
admissions at least three (3) days before the hearing. After the supporting affidavits, depositions, and admissions on file, show that
hearing, the judgment sought shall be rendered forthwith if the
pleadings, supporting affidavits, depositions, and admissions on file, a. except as to the amount of damages, there is no genuine issue as
show that, except as to the amount of damages, there is no genuine to any material fact and
issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. (3a, R34) b. the moving party is entitled to a judgment as a matter of law.
Grounds for summary judgment - there is no genuine issue as to any 5. if judgment is not rendered upon the whole case or for all the reliefs
material fact and that the moving party is entitled to a judgment as a sought and a trial is necessary, the court ascertains what material
matter of law facts
Sec. 4. Case not fully adjudicated on motion. If on motion under a. exist without substantial controversy, and
this Rule, judgment is not rendered upon the whole case or for all the
b. are actually and in good faith controverted
reliefs sought and a trial is necessary, the court at the hearing of the
motion, by examining the pleadings and the evidence before it and by 6. Court makes an order specifying the facts that appear without
interrogating counsel shall ascertain what material facts exist without substantial controversy, including the extent to which the amount of
substantial controversy and what are actually and in good faith
damages or other relief is not in controversy, and directing such Should it appear to the court that any of the affidavits presented are
further proceedings in the action as are just. presented in bad faith, or solely for the purpose of delay, the court shall
7. The facts specified as without substantial controversy shall be 1. order the offending party or counsel to pay to the other party the
deemed established, and the trial shall be conducted only on the amount of the reasonable expenses which the filing of the affidavits
controverted facts. caused him to incur, including attorneys fees.
Sec. 5. Form of affidavits and supporting papers. Supporting and 2. after hearing, further adjudge the offending party or counsel guilty of
opposing affidavits shall be made on personal knowledge, shall set contempt.
forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters DISTINGUISH BETWEEN JUDGMENT ON THE PLEADINGS AND
stated therein. Certified true copies of all papers or parts thereof SUMMARY JUDGMENT
referred to in the affidavit shall be attached thereto or served Judgment on the Pleadings Summary Judgment
therewith. (5a, R34)
Available only a claimant Available to both claimant
Requisites for supporting and opposing affidavits
There is no tender of issue There is no genuine issue
1. personal knowledge
Judgment based on pleadings only Judgment based on plead
2. state facts as would be admissible in evidence admissions
3. show affirmatively that the affiant is competent to testify to the
Motion for judgment on the pleadings must be served Motion for summary judgm
matters stated therein
at least 3 days prior to the scheduled hearing 10 days prior to the schedu
4. Certified true copies of all papers or parts thereof referred to in the
CASES
affidavit shall be attached thereto or served therewith.
Sec. 6. Affidavits in bad faith. Should it appear to its

PNB V. PHIL LEATHER, 105 PHIL 400 (1959)
satisfaction at any time that any of the affidavits presented pursuant
to this Rule are presented in bad faith, or solely for the purpose of In their answer, the defendants admit the plaintiff's averments excepts as
delay, the court shall forthwith order the offending party or counsel to the correctness of the amounts due, the correctness of which they
to pay to the other party the amount of the reasonable expenses were still checking, and for that reason lacking sufficient knowledge or
which the filing of the affidavits caused him to incur, including information to form a belief as to the truth and veracity of the amounts
attorneys fees. It may, after hearing, further adjudge the offending due, they deny the amounts claimed by the plaintiff to be due them.
party or counsel guilty of contempt. (6a, R34) Hence, plaintiff is entitled to summary judgment.
APELARIO V. CHAVEZ, 3 SCRA 226 (1961) de Leon: Note that in judgment on the pleadings, there is no tender of an
issue. In summary judgment, there is a tender of an issue, but it is not
Where defendant admitted the existence of the obligation but alleged
genuine. If the pleadings alone (complaint, answer, reply) are enough to
inability to pay, judgment on the pleadings is proper.
decide the case, then the remedy is judgment on the pleadings. If there
must be resort to documents outside the pleadings, or if it is the
LATI V. VALMORES, 94 PHIL 709 (1954) * L-6877 defendant who files the motion, then the remedy is summary judgment.
30MAR1954 Judgment on the pleadings would have been proper in Galicia had it been
available to defendants. Since it was the defendant who moved, his
A general denial in the answer is ground for judgment on the pleadings. remedy is summary judgment.
GALICIA V. POLO, 179 SCRA 371 (1989) JUDGMENTS, FINAL ORDERS, AND ENTRY THEREOF
Facts: Palajos won an ejectment case against Galicia who was also
ordered to pay rentals. The case became final and executory. Galicia RULE 36
failed to pay the rentals, so his parcel of land was executed and sold to Section 1. Rendition of judgments and final orders. A judgment
Palajos. The redemption period has expired. Galicia now sues for or final order determining the merits of the case shall be in writing
recovery of the land sold on public auction. Galicia alleged that pursuant personally and directly prepared by the judge, stating clearly and
to the earlier forcible entry case, a decision was rendered in Palajos' favor distinctly the facts and the law on which it is based, signed by him,
and said decision was executed and which resulted in Palajos taking and filed with the clerk of the court. (1a)
possession of the land in question. Palajos motion for summary
judgment was granted, and Galicias complaint was dismissed on the cf Secs. 14, Art. VIII, Constitution
ground of res judicata.
Section 14. No decision shall be rendered by any court without
Held: The issue of ownership of the disputed land subject of the present expressing therein clearly and distinctly the facts and the law on
petition has long been foreclosed in the forcible entry case which which it is based.
culminated in the public auction sale of the parcel of land now sought to
be recovered. Having failed to redeem the property sold at the public No petition for review or motion for reconsideration of a decision
auction sale within the reglementary period Galicia cannot now claim of the court shall be refused due course or denied without stating
that they still own said property. Galicia's complaint is but a belated and the legal basis therefor.
disguised attempt to revive a judgment debtors' right of redemption Form of judgment or final order determining the merits of the case
which has long expired. There being no issue as to any material fact
raised in the pleadings, summary judgment may be rendered. 1. in writing
2. personally and directly prepared by the judge When the case is appealed, it is the clerk of court of the appellate court
that makes the entry of judgment.
3. stating clearly and distinctly the facts and the law on which it is based
cf Sec. 15 (1), Art. VIII, Constitution
4. signed by him
Section 15. (1) All cases or matters filed after the effectivity of
5. filed with the clerk of the court this Constitution must be decided or resolved within twenty-four
months from date of submission for the Supreme Court, and,
Only when the judgment is filed with the clerk of court that a judgment is
unless reduced by the Supreme Court, twelve months for all
rendered.
lower collegiate courts, and three months for all other lower
Sec. 2. Entry of judgments and final orders. If no appeal or courts.
motion for new trial or reconsideration is filed within the time
(2) A case or matter shall be deemed submitted for decision or
provided in these Rules, the judgment or final order shall forthwith be
resolution upon the filing of the last pending, brief, or
entered by the clerk in the book of entries of judgments. The date of
memorandum required by the Rules of Court or by the court
finality of the judgment or final order shall be deemed to be the date
itself.
of its entry. The record shall contain the dispositive part of the
judgment or final order and shall be signed by the clerk, with a (3) Upon the expiration of the corresponding period, a
certificate that such judgment or final order has become final and certification to this effect signed by the Chief Justice or the
executory. (2a, 10, R51) presiding judge shall forthwith be issued and a copy thereof
attached to the record of the case or matter, and served upon the
If no appeal or motion for new trial or reconsideration is filed within the
parties. The certification shall state why a decision or resolution
required time
has not been rendered or issued within said period.
1. the judgment or final order shall forthwith be entered by the clerk in
(4) Despite the expiration of the applicable mandatory period,
the book of entries of judgments
the court, without prejudice to such responsibility as may have
2. The date of finality of the judgment or final order shall be deemed to been incurred in consequence thereof, shall decide or resolve the
be the date of its entry case or matter submitted thereto for determination, without
further delay.
3. The record
Periods to decide
a. shall contain the dispositive part of the judgment or final order
1. All lower courts: 3 months from the filing of the last pleading
b. shall be signed by the clerk, with a certificate that such judgment
or final order has become final and executory. 2. Collegiate courts: 12 months
3. Supreme Court: 2 years disposing of such claim. The judgment shall terminate the action with
respect to the claim so disposed of and the action shall proceed as to
Sec. 3. Judgment for or against one or more of several parties. the remaining claims. In case a separate judgment is rendered, the
Judgment may be given for or against one or more of several court by order may stay its enforcement until the rendition of a
plaintiffs, and for or against one or more of several defendants. When subsequent judgment or judgments and may prescribe such
justice so demands, the court may require the parties on each side to conditions as may be necessary to secure the benefit thereof to the
file adversary pleadings as between themselves and determine their party in whose favor the judgment is rendered. (5a)
ultimate rights and obligations. (3)
When more than one claim for relief is presented in an action
Judgment may be given for or against one or more of several parties.
1. the court
The court may require the parties on each side to file adversary pleadings
as between themselves and determine their ultimate rights and a. at any stage
obligations.
b. upon a determination of the issues material to a particular claim
cf Rule 62, Sec. 1 and all counterclaims arising out of the transaction or occurrence
which is the subject matter of the claim
Sec. 1. When interpleader proper. Whenever conflicting claims
upon the same subject matter are or may be made against a c. may render a separate judgment disposing of such claim
person who claims no interest whatever in the subject matter, or
an interest which in whole or in part is not disputed by the 2. judgment shall terminate the action with respect to the claim so
claimants, he may bring an action against the conflicting disposed of and the action shall proceed as to the remaining claims
claimants to compel them to interplead and litigate their several
3. In case a separate judgment is rendered, the court by order may stay
claims among themselves. (1a, R63)
its enforcement until the rendition of a subsequent judgment/s and
Sec. 4. Several judgments. In an action against several may prescribe such conditions as may be necessary to secure the
defendants, the court may, when a several judgment is proper, render benefit thereof to the party in whose favor the judgment is rendered
judgment against one or more of them, leaving the action to proceed
Sec. 6. Judgment against entity without juridical personality.
against the others. (4)
When judgment is rendered against two or more persons sued as an
Sec. 5. Separate judgments. When more than one claim for entity without juridical personality, the judgment shall set out their
relief is presented in an action, the court, at any stage, upon a individual or proper names, if known. (6a)
determination of the issues material to a particular claim and all
CASES
counterclaims arising out of the transaction or occurrence which is the
subject matter of the claim, may render a separate judgment
RIVERA V. PEOPLE, GR 93219 (1990) final and executory. Rivera alleges that his constitutional right against
double jeopardy was violated.
FACTS Marcelino Rivera, Jr. was arrested and detained for he alledgedly
was about to transport marijuana to Manila. A case for violation of Sec4, HELD Where an order of dismissal was made orally, the order is not valid.
Art2 of RA6425 was filed against him with the Baguio RTC. On Judgments must be writing in the official language, personally and
arraignment, Rivera pleaded not guilty. directly prepared by the judge and signed by him. Petition is denied and
remanded to the court of origin for further proceedings.
The first witness for the prosecution Cpl. Afalla partially testified on
direct examination and reserved the right to identify the marijuana
specimen. Thus hearing was re-set to May3 & June6, 1989 but due to the
SUAREZ V. CA, 193 SCRA 183 (1991)
absence of any prosecution witness despite notice and the non-
availability of the marijuana specimen, the May and June hearings were FACTS Private respondent Rosemarie Manese filed with the Pasig RTC a
postponed to June8, 1989. On June8, for the same reasons, the hearing petition for writ of habeas corpus against Renato Suarez, his mother Paz,
was re-set to Feb27, 1990. and his sisted Milagros. Before she could finish presentation of her
evidence, Manese filed a MtD without prejudice to her right to file
On Feb27, Forensic Chemist Capt Sarmiento who will present the another action for custody of minor under Rule 99 RoC, contending that
marijuana specimen, despite notice failed to appear. Rivera MfD which the issue as to who between the parties has the rightful and legal custody
was denied and hearing was re-set to Mar28. of the minor child could be fully adjudicated in another action and not in
the present action for writ of habeas corpus. RTC granted the MtD with
On Mar28, when the case was called, Capt Sarmiento, despite notice,
prejudice.
was not around. When the case was called for the second time, Capt
Sarmiento was still not around. Atty Gorospe, in behalf of petitioner, Manese filed another action for custody of minor and support before the
orally MfD invoking the right to speedy trial as the petitioner stands RTC against Suarez. Suarez MtD the action on the ground of bar of prior
confined and that the Govt failed to prosecute or adduce evidence due to judgment (res judicata). MtD was denied. Suarez MfR of the denial
the non-appearance of a vital prosecution witness. whcih was also denied.
Respondent judge verbally granted the motion and ordered the Manese filed a motion for visitorial rights and thereafter, motion for
immediate release of the accused. In less than an hour after the verbal custody of the minor during xmas season. RTC denied Suarezs MfR and
order of dismissal, Capt Sarmiento arrived direct from Quezon City. granted Maneses two motions.
Upon satisfactory explanation, respondent judge set aside his previous
verbal order of dismissal and re-scheduled the case for continuation of RTC issued another order setting aside its order which granted Suarezs
trial. Hence this petition. motion for visitorial rights and setting pre-trial of the case.
Rivera alleges that the verbal order of dismissal made in open court
amounted to the acquittal of petitioner and which order is immediately
Suarez filed with CA a petition for certiorari and prohibition with HELD After an adjudication of guilt, the judge should impose the proper
application for restraining order/prelim injunction, seeking to set aside penalty and civil liability provided for by the law on the accused. As long
the RTC orders. CA dismissed the special civil action. as the death penalty remains in the statute books, and as long as our
criminal law provides for its imposition in certain cases, it is the duty of
ISSUE WON the order of dismissal with prejudice in the action for the judicial officers to respect and apply the law regardless of their private
writ of HC is res judicata to the present action for custody of minor and opinions. Petition granted and case is remanded to the RTC for the
support. imposition of the death penalty subject to automatic review by the SC.
HELD The most important requirement for application of res judicata is
that the former judgment must be a valid one. Where the order of
MASCUANA V. PROVINCIAL BOARD OF NEGROS
dismissal issued by the court without expressing therein clearly and
OCCIDENTAL, 79 SCRA 399 (1977)
distinctly the facts and the law on which it is based, the order is null and
void. This order is not bar to the filing of a second action. Petition FACTS Resolution59 of the municipal council of Talisay NegOcc declared
denied. a piece of land as municipal property closed to vehicular traffic. Among
those adjacent lots are owned by Angel Mascuana (lot#80) and his
children Angeles (lot#81-A), Angel, Jr. (lot#81-B), and Manuel (lot#81-
PEOPLE V. VENERACION, 249 SCRA 244 (1995) C). Angel alleged that the piece of land in question is the terminus or
extension of Burgos St. It is occupied by Councilor Leon Treyes, Ulpiana
FACTS Abundio Lagunday and Henry Lagarto were charged with the
Inson, Gonzalo Ordaniel and Florentino Gargallano who had constructed
crime of Rape with Homicide of Angel Alquiza in the Manila RTC.
houses thereon.
Subsequently, Ernesto Cordero, Rolando Manlangit, Richard Baltazar,
Catalino Yaon were accused of the same crime. The two cases were Mascuana contends that they own said parcel of land. The Municipal
consolidated. All accused were arraigned except Lagunday who was Board contends that it is municipal property. This was affirmed by the
already dead. Provincial Board when it passed Resolution1035 approving muni councils
Resolution59.
After trial and presentation of evidence of both parties, the RTC rendered
decision finding Lagato and Cordero guilty beyond reasonable doubt of Mascuana filed in the NegOcc CFI against the Prov Board, Muni Council
the crime of Rape with Homicide and sentenced both with reclusion and the 4 occupants a petition praying that Res59 and Res1035 be
perpetua with all the accessories provided for by law. Manila City Fiscal declared void. The 4 private respondents filed MtD. CFI issued a short or
disagrees with the sentence imposed and filed a MfR praying for the minute order finding the MtD to be well founded and dismissing the
death penalty against Lagarto and Cordero. Respondent judge refused petition. It denied the petitioners MtD in the same manner.
to act on the merits of the MfR thus denying it for lack of jurisdiction
since the accused have complied with the legal requirements for the HELD The constitutional requirement of making findings of fact and law
perfection of an appeal. applies only to decisions, it does not apply to an order of dismissal.
However, the trial court should reason out its order of dismissal and employee's primary civil liability but also his employer's subsidiary
should not merely incorporate therein, by reference, the MTD to liability for such criminal negligence. The decision convicting the
facilitate an appeal therefrom. CFIs minute order of dismissal is reversed employee is binding and conclusive upon the employer, not only with
and set aside. regard to the employers civil liability but also with regard to its amount
because the liability of an employer cannot be separated but follows that
of his employee. In the action to enforce the employer's subsidiary
PAJARITO V. SEERIS, 87 SCRA 275 (1978) liability, the court has no other function than to render decision based
Facts: Felipe Aizon is the registered owner of a passenger bus driven by upon the indemnity awarded in the criminal case and has no power to
Joselito Aizon. The bus was involved in an accident resulted in the death amend or modify it even if in its opinion an error has been committed in
of 2 passengers. Joselito was charged with double homicide through the decision.
reckless imprudence. The information alleged that Felipe was Joselitos
Considering that Felipe Aizon does not deny that he was the registered
employer. Joselito pleaded guilty. The writ of execution of civil liability
operator of the bus but only claims now that he sold the bus to the father
against Joselito returned unsatisfied because of Joselitos insolvency.
of the accused, it would serve no important purpose to require petitioner
Plaintiffs move for subsidiary writ of execution against Felipe. Felipe
to file a separate and independent action against the employer for the
opposed the motion on the ground that he is not the employer of
enforcement of the latter's subsidiary civil liability. Under the
Joselito, the vehicle in question having been sold already to Isaac Aizon,
circumstances, it would not only prolong the litigation but would require
father of Joselito, but that the deed of transfer has not been executed
the heirs of the deceased victim to incur unnecessary expenses. At any
because the full price has not yet been paid. The court denied motion for
rate, the proceeding for the enforcement of the subsidiary civil liability
Subsidiary Writ of Execution on the ground that Felipe was not a party in
may be considered as part of the proceeding for the execution of the
the criminal case.
judgment. A case in which an execution has been issued is regarded as
Held: An employer may be subsidiary liable for the employee's civil still pending so that all proceedings on the execution are proceedings in
liability in a criminal action when: (1) the employer is engaged in any kind the suit. There is no question that the court which rendered the
of industry; (2) the employee committed the offense in the discharge of judgment has a general supervisory control over its process of execution,
his duties; and (3) he is insolvent and has not satisfied his civil liability. and this power carries with it the right to determine every question of
The subsidiary civil liability of the employer, however, arises only after fact and law which may be involved in the execution. The validity of the
conviction of the employee in the criminal case. A judgment of claim of Felipe that he is no longer the owner and operator of the ill-fated
conviction sentencing a defendant employee to pay an indemnity, in the bus as he sold it already to Isaac, father of the accused Joselito, is a
absence of any collusion between the defendant and the offended party, matter that could be litigated and resolved in the same criminal case.
is conclusive upon the employer in an action for the enforcement of the Felipe may adduce all the evidence necessary for that purpose. The
latter's subsidiary liability. The employer becomes ipso facto subsidiarily enforcement of the employer's subsidiary civil liability may be
liable upon his employee's conviction and upon proof of the latter's conveniently litigated within the same proceeding because the execution
insolvency, in the same way that acquittal wipes out not only the of the judgment is a logical and integral part of the case itself.
IMSON V. CA, 239 SCRA 58 (1994) NEW TRIAL OR RECONSIDERATION
Facts: Plaintiff sues for damages from a vehicular accident. Beneficial
Procedure for MNT or MFR
owner and the driver were declared in default. Compromise was reached
with the insurer and the claim against him was withdrawn. Registered 1. motion shall be made in writing stating the ground or grounds
owners now seek dismissal of the claims against them as well.
2. a written notice of which shall be served by the movant on the
Held: The case should proceed. The rule is dismissal of the case against adverse party.
an indispensable party results in dismissal of the case against the other
indispensable parties. The insurer is merely a necessary party. Dismissal 3. A motion for new trial shall be proved in the manner provided for
of the case against him will not result to dismissal of the claim against proof of motions
the other defendants.
a. A motion on the ground of FAME shall be supported by affidavits
Escolin: The insurer is not an indispensable party to the case. The only of merits which may be rebutted by affidavits.
indispensable party here is the driver of the truck. All the others are mere
necessary parties. b. A motion on the ground of newly discovered evidence shall be
supported by
1) affidavits of the witnesses by whom such evidence is

PEOPLE V. OCAYA, 83 SCRA 218 (1978)
expected to be given, or
Jurisdiction of a criminal court is based on the allegations in the
information. The court does not lose jurisdiction by the mere fact that 2) duly authenticated documents which are proposed
the evidence indicated the commission of a lesser crime outside its to be introduced in evidence.
jurisdiction. If from the evidence submitted a lesser offense was
c. Should include all the grounds then available and those not so
established, the court equally had jurisdiction to impose the sentence for
included shall be deemed waived.
such lesser offense, even if the court would not have jurisdiction had such
lesser offense been alleged in the information. 4. A motion for reconsideration shall
de Leon: Note that if the information alleged a more serious crime, but a. point out specifically the findings or conclusions of the judgment
the crime proven was a less serious and prescribed crime, the court can or final order which are not supported by the evidence or which
not convict the accused even for the lesser offense. are contrary to law
b. making express reference to the testimonial or documentary

POST JUDGMENT (RULE 37-39) evidence or to the provisions of law alleged to be contrary to
such findings or conclusions.
5. A pro forma motion for new trial or reconsideration shall not toll the (b) Newly discovered evidence, which he could not, with
reglementary period of appeal. reasonable diligence, have discovered and produced at the trial, and
which if presented would probably alter the result.
6. A motion for new trial or reconsideration shall be resolved within 30
days from the time it is submitted for resolution. Within the same period, the aggrieved party may also move for
reconsideration upon the grounds that the damages awarded are
7. The trial court may excessive, that the evidence is insufficient to justify the decision or
final order, or that the decision or final order is contrary to law. (1a)
a. set aside the judgment or final order and grant a new trial, upon
such terms as may be just, or may deny the motion Grounds for new trial Within the period for taking an appeal when the
following causes materially affects the substantial rights of the aggrieved
b. accordingly amend the judgment or final order if it finds that
party
excessive damages have been awarded or that the judgment or
final order is contrary to the evidence or law 1. FAME which ordinary prudence could not have guarded against and
by reason of which such aggrieved party has probably been impaired
8. A second motion for
in his rights; or
a. reconsideration not allowed
2. Newly discovered evidence, which he could not, with reasonable
b. new trial based on a ground not existing nor available when the diligence, have discovered and produced at the trial, and which if
first motion was made may be filed within the time herein presented would probably alter the result.
provided excluding the time during which the first motion had
Grounds for reconsideration Within the same period
been pending.
1. the damages awarded are excessive
RULE 37
Section 1. Grounds of and period for filing motion for new trial or 2. the evidence is insufficient to justify the decision or final order, or
reconsideration. Within the period for taking an appeal, the
3. the decision or final order is contrary to law
aggrieved party may move the trial court to set aside the judgment or
final order and grant a new trial for one or more of the following Sec. 2. Contents of motion for new trial or reconsideration and
causes materially affecting the substantial rights of said party: notice thereof. The motion shall be made in writing stating the
ground or grounds therefor, a written notice of which shall be served
(a) Fraud, accident, mistake or excusable negligence which
by the movant on the adverse party.
ordinary prudence could not have guarded against and by reason of
which such aggrieved party has probably been impaired in his rights; A motion for new trial shall be proved in the manner provided for
or proof of motions. A motion for the cause mentioned in paragraph (a)
of the preceding section shall be supported by affidavits of merits The court may accept affidavits and depositions, but this does not
which may be rebutted by affidavits. A motion for the cause preclude the court from holding a hearing.
mentioned in paragraph (b) shall be supported by affidavits of the
witnesses by whom such evidence is expected to be given, or by duly Escolin: The latest jurisprudence ruled that a MfR can cite the same
authenticated documents which are proposed to be introduced in grounds and allegations of a memorandum.
evidence.
Pro forma Motion did not comply with the requisites in Sec. 2; e.g. MNT
A motion for reconsideration shall point out specifically the is not accompanied with affidavit of merit; MNT did not attach the
findings or conclusions of the judgment or final order which are not affidavits of the additional witnesses; the motion is not served on the
supported by the evidence or which are contrary to law, making other party; any violation of the rules on MNT or MFR
express reference to the testimonial or documentary evidence or to
de Leon: Note that in ordinary appeals, after denial of a MNT or MfR a
the provisions of law alleged to be contrary to such findings or
party has only the remaining period to appeal. In petitions for review,
conclusions.
petitions for review on certiorari, and special civil actions for certiorari,
A pro forma motion for new trial or reconsideration shall not toll after denial of MNT or MfR, a party has a fresh period to seek other
the reglementary period of appeal. (2a) remedies.
cf Rule 15, Sec. 3 Sec. 3. Action upon motion for new trial or reconsideration. - The
trial court may set aside the judgment or final order and grant a new
Sec. 3. Contents. A motion shall state the relief sought to be trial, upon such terms as may be just, or may deny the motion. If the
obtained and the grounds upon which it is based, and if required court finds that excessive damages have been awarded or that the
by these Rules or necessary to prove facts alleged therein, shall judgment or final order is contrary to the evidence or law, it may
be accompanied by supporting affidavits and other papers. (3a) amend such judgment or final order accordingly. (3a)
cf Rule 133, Sec. 7 Sec. 4. Resolution of motion. A motion for new trial or
reconsideration shall be resolved within thirty (30) days from the time
Sec. 7. Evidence on motion. - When a motion is based on facts not it is submitted for resolution. (n)
appearing of record the court may hear the matter on affidavits
or depositions presented by the respective parties, but the court Sec. 5. Second motion for new trial. A motion for new trial shall
may direct that the matter be heard wholly or partly on oral include all grounds then available and those not so included shall be
testimony or depositions. (7) deemed waived. A second motion for new trial, based on a ground not
existing nor available when the first motion was made, may be filed
Note that a MNT should always be accompanied with affidavits or within the time herein provided excluding the time during which the
supporting evidence. A MfR is not always required to be so accompanied. first motion had been pending.
No party shall be allowed a second motion for reconsideration of a Sec. 8. Effect of order for partial new trial. When less than all of
judgment or final order. (4a; 4, IRG) the issues are ordered retried, the court may either enter a judgment
or final order as to the rest, or stay the enforcement of such judgment
A 2nd MNT may be allowed on a different ground not previously available. or final order until after the new trial. (7a)
A 2nd MfR is absolutely prohibited.
When less than all of the issues are ordered retried, the court may either
Sec. 6. Effect of granting of motion for new trial. If a new trial is
granted in accordance with the provisions of this Rule, the original 1. enter a judgment or final order as to the rest, or
judgment or final order shall be vacated, and the action shall stand for
trial de novo; but the recorded evidence taken upon the former trial, 2. stay the enforcement of such judgment or final order until after the
in so far as the same is material and competent to establish the new trial
issues, shall be used at the new trial without retaking the same. (5a)
Sec. 9. Remedy against order denying a motion for new trial or
If a new trial is granted reconsideration. An order denying a motion for new trial or
reconsideration is not appealable, the remedy being an appeal from
1. the original judgment or final order shall be vacated, and the judgment or final order. (n)
2. the action shall stand for trial de novo An order denying a motion for new trial or reconsideration is not
appealable, the remedy being an appeal from the judgment or final
3. but the recorded evidence taken upon the former trial shall be used order.
at the new trial without retaking
But the resolution may be taken on review by the appellate court by a
Sec.7. Partial new trial or reconsideration. If the grounds for a special civil action of certiorari, mandamus, or prohibition.
motion under this Rule appear to the court to affect the issues as to
only a part, or less than all of the matter in controversy, or only one, CASES
or less than all, of the parties to it, the court may order a new trial or
grant reconsideration as to such issues if severable without interfering
with the judgment or final order upon the rest. (6a) RAMNANI V. CA, 221 SCRA (1993)
FACTS Spouses Juliette and Cenen Dizon filed a complaint in the Makati
If the grounds for a MNT or MFR affect the issues as to only a part of the RTC against spouses Josephine Anne and Bhagwan Ramnani for the
matter in controversy, the court may order a new trial or grant collection of a sum of money representing the alleged unremitted value
reconsideration as to such issues if severable without interfering with the of jewelry. Josephine submitted an answer with counterclaim.
judgment or final order upon the rest.
The case was set for pre-trial but the Ramnanis did not appear. They Where a MfR failed to state in detail the reasons in support of the
were declared in default. They filed a motion to lift the order of default grounds alleged therein, such MfR does not interrupt the period for
but this was denied. appeal. It is now required to point out specifically the findings or
conclusions of the judgment which are not supported by the evidence or
Evidence of the Dizons were received ex-parte which are contrary to law, making express reference to the testimonial or
documentary evidence or to the provisions of law alleged to be contrary
HELD The remedies available to a defendant who has been declared in
to such findings or conclusions. When the motion fails to make the
default are: a) before judgment file a motion, under oath, to set aside
specification thus required, it will be treated as a motion pro-forma
the order of default on the ground that his failure to answer was due to
intended merely to delay the proceedings, and as such, it shall be
FAME, and that he has a meritorious defense; b) after judgment, but
stricken out.
before it has become final and executory file a MNT; c) after judgment
has become final and executory file a petition for relief; d) He may also
appeal from the judgment rendered against him as contrary to the
DAVID V. FERNANDEZ, 176 SCRA 608 (1989)
evidence or to the law, even if no petition to set aside the order of default
has been presented by him. A motion to lift order of default requires a A granted MNT nullifies the judgment, including all the consequential
showing of meritorious defense and FAME. A meritorious defense must effects thereof, to wit: the Writ of Execution, the corresponding levy on
concur with the satisfactory reason for the non-appearance of the properties and the public auction sale.
defaulted party.
ESTRADA V. STO. DOMINGO, 28 SCRA 890 (1969)

HABALUYAS V. JAPZON, 138 SCRA 46 (1985) * 30570 29JUL69
The 15 day period for appealing or for filing a motion for reconsideration FACTS Erap Estrada and Braulio Sto Domingo are candidates for mayor
cannot be extended. in San Juan. After the elections, Sto Domingo won by a plurality of just
44 votes. Sto Domingo was proclaimed as elected mayor by the
municipal board of canvassers. Estrada lodged an election protest and
BELAMIDE V. CA, 90 SCRA 175 (1979) Sto Domingo counter-protested in the Rizal CFI. CFI annuls and sets
aside the proclamation of Sto Domingo and proclaims and declares Erap
Discovery after judgment that a document presented during the trial was
as duly elected mayor.
falsified is not newly discovered evidence that would justify a new trial.
The next day, Sto Domingos counsel was served a copy of the decision.
At the last day of the 5-day period to appeal, Sto Domingo filed a MfR
VALDEZ V. JUGO, 74 PHIL 49 (NOV 28, 1942) *
the decision. Copy of the motion was sent to Eraps counsel with notice
GR#48859
of hearing of the motion. On the date of hearing, Sto Domingo and
counsel were present. Erap and counsel were absent, both of whom until
then had not rcvd a copy of the motion. For lack of proof that Erap had If the defendant has been declared in default or parties failed to appear
rcvd notice of the MfR, the hearing was reset. On that afternoon, Erap, at the pre-trial (except #1 in case of plaintiff who fails to appear at the
got wind of what took place in the CFI, he filed an omnibus motion pre-trial)
alleging that Sto Domingos MfR was not legally sanctioned.
1. If there is as yet no judgment that has been rendered, his remedy
HELD A MfR is pro forma if it was but a repetition of the contents of the is to move to lift the order of default which should be accompanied
memorandum filed by the movant, or if it merely makes reference to the by
contents of the memorandum filed by both parties which had already
been considered by the Court before rendering its decision. A pro forma a. affidavit of FAME
MfR does not suspend the period to appeal.
b. under oath
c. affidavit of good and meritorious defense

SIMSIM V. BELMONTE, 34 SCRA 536 (1970)
2. If there is already a judgment, but it has not yet been entered, he
Where a court approves record on appeal while a MfR is pending, it has
should move for new trial (Rule 37), which should be accompanied by
the power to order amendment of the record to conform to the
resolution of the MfR. The better solution was for the court to defer a. affidavit of FAME
approval of the record on appeal until the other partys MfR had been
finally resolved. b. under oath
de Leon: Note that the rules provide that an appeal is perfected upon c. affidavit of good and meritorious defense
filing of a notice of appeal in due time, but the court does not lose
jurisdiction until the perfection of the appeal and the lapse of the period 3. If MNT is denied, the remedy is ordinary appeal.
to appeal for the other parties. In Simsim, though appeal was perfected
4. If appeal is denied, he should petition for relief from denial of appeal
by one party, an MfR by the other party was still pending. The period to
(Rule 38)
appeal by that party has not yet lapse, and therefore the court did not
lose jurisdiction yet. 5. If there is already a judgment and it has been entered, within 60 days
from discovery but not more than 6 months after entry of judgment
petition for relief from judgment (Rule 38), which should be
RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS accompanied by
In petitioner for relief, the judgment has already been entered. In MNT a. affidavit of FAME
and MfR, the judgment has not yet been entered.
b. under oath
c. affidavit of good and meritorious defense may be just. Thereafter the case shall stand as if such judgment, final
order or other proceeding had never been rendered, issued or taken.
6. de Leon: If there had been more than 6 months from entry of
judgment, but within 4 years from discovery of extrinsic fraud 5. The court shall then proceed to hear and determine the case as if a
petition before the CA for annulment of judgments (Rule 47) timely motion for a new trial or reconsideration had been granted by
it.
a. Under oath
6. Where the denial of an appeal is set aside, the lower court shall be
b. Affidavit of extrinsic fraud required
c. Affidavit of good and substantial defense a. to give due course to the appeal and
d. Certificate against forum-shopping b. to elevate the record of the appealed case, as if a timely and
proper appeal had been made
de Leon: What is the remedy before judgment of a plaintiff who fails to
appear at the pre-trial? I think he should MfR the decision to allow Section 1. Petition for relief from judgment, order, or other
defendants evidence to be presented ex-parte, or he could petition for proceedings. When a judgment or final order is entered, or any
relief from the order allowing defendants evidence to be presented ex- other proceeding is thereafter taken against a party in any court
parte. through fraud, accident, mistake, or excusable negligence, he may
file a petition in such court and in the same case praying that the
RULE 38
judgment, order or proceeding be set aside. (2a)
Procedure in Petition for relief from judgment or denial of appeal
Sec. 2. Petition for relief from denial of appeal. When a
1. Verified petition filed within 60 days after discovery, but not more judgment or final order is rendered by any court in a case, and a party
than 6 months from entry of judgment or proceedings taken; with thereto, by fraud, accident, mistake, or excusable negligence, has
affidavits of FAME and good and substantial cause of action or been prevented from taking an appeal, he may file a petition in such
defense court and in the same case praying that the appeal be given due
course. (1a)
2. court orders adverse parties to answer within 15 days from the
receipt of the order Grounds for Petition for relief from judgment, order, or other
proceedings
3. After the filing of the answer or the expiration of the period therefor,
the court shall hear the petition 1. a judgment or final order is entered through FAME, or
4. if after such hearing the court finds that the allegations are true, the
court shall set aside the judgment complained of upon such terms as
2. any other proceeding is thereafter taken against a party in any court b. and the facts constituting the petitioner's good and substantial
through FAME cause of action or defense
Conditions for Petition for relief from denial of appeal Sec. 5. Preliminary injunction pending proceedings. The court in
which the petition is filed, may grant such preliminary injunction as
1. a judgment or final order is rendered by any court in a case, and may be necessary for the preservation of the rights of the parties,
upon the filing by the petitioner of a bond in favor of the adverse
2. a party has been prevented from taking an appeal, by FAME
party, conditioned that if the petition is dismissed or the petitioner
Sec. 3. Time for filing petition; contents and verification. A fails on the trial of the case upon its merits, he will pay the adverse
petition provided for in either of the preceding sections of this Rule party all damages and costs that may be awarded to him by reason of
must be verified, filed within sixty (60) days after the petitioner learns issuance of such injunction or the other proceedings following the
of the judgment, final order, or other proceeding to be set aside, and petition; but such injunction shall not operate to discharge or
not more than six (6) months after such judgment or final order was extinguish any lien which the adverse party may have acquired upon
entered, or such proceeding was taken; and must be accompanied the property of the petitioner. (5a)
with affidavits showing the fraud, accident, mistake, or excusable
cf Rule 58, Sec. 3 (c)
negligence relied upon, and the facts constituting the petitioner's
good and substantial cause of action or defense, as the case may be. Sec. 3. Grounds for issuance of preliminary injunction. - A
(3) preliminary injunction may be granted when it is established:
Requisites filing Petition for relief from judgment or denial of appeal (c) That a party, court, agency or a person is doing, threatening
or is attempting to do, or is procuring or suffering to be done,
1. verified
some act or acts probably in violation of the rights of the
2. filed applicant respecting the subject of the action or proceeding, and
tending to render the judgment ineffectual. (3a)
a. within 60 days after the petitioner learns of the judgment, final
order, or other proceeding to be set aside, and Court may grant preliminary injunction
b. not more than 6 months after entry of such judgment 1. as may be necessary for the preservation of the rights of the parties
3. must be accompanied with affidavits showing 2. upon the filing by the petitioner of a bond
a. the FAME relied upon, a. in favor of the adverse party
b. conditioned that he will pay the adverse party all damages and the appelaed case as if a timely and proper appeal had been made.
costs that may be awarded to him by reason of issuance of such (7a)
injunction, if
CASES
1) the petition is dismissed or
2) the petitioner fails on the trial of the case upon its FRANCISCO V. PUNO, 108 SCRA 427 (1981)
merits Filing a MNT precludes subsequent petition for relief. The remedy of a
3. such injunction shall not operate to discharge or extinguish any lien party is to appeal the denial of the MNT. Besides, the petition for relief
which the adverse party may have acquired upon the property of the was filed more than 60 days from knowledge of the adverse judgment.
petitioner.
Sec. 4. Order to file an answer. If the petition is sufficient in GORDULAN V. GORDULAN, 3 SCRA 205 (1961)
form and substance to justify relief, the court in which it is filed, shall Not only a sworn statement of the facts constituting petitioner's good
issue an order requiring the adverse parties to answer the same within and substantial defense is required in a petition for relief, but also a
fifteen (15) days from the receipt thereof. The order shall be served in showing that the failure to file an answer was by reason of FAME.
such manner as the court may direct, together with copies of the
petition and the accompanying affidavits. (4a)
ARCILLA V. ARCILLA, 138 SCRA 560 (1985)
Sec. 6. Proceedings after answer is filed. After the filing of the
answer or the expiration of the period therefor, the court shall hear Where petition for relief was filed more than 5 months after receipt of
the petition and if after such hearing, it finds that the allegations the decision, the petition should be denied.
thereof are not true, the petition shall be dismissed; but if it finds said
allegations to be true, it shall set aside the judgment or final order or
other proceedings complained of upon such terms as may be just. ANURAN V. AQUINO, 38 PHIL 29 (1918)
Thereafter the case shall stand as if such judgment, final order or If the period for filing a petition for relief from judgment has lapsed, the
other proceeding had never been rendered, issued or taken. The court remedy is to file an action before the CA to annul the judgment.
shall then proceed to hear and determine the case as if a timely
motion for a new trial or reconsideration had been granted by it. (6a) de Leon: Note that filing of MNT bars a petition for relief, and even
petition for annulment of judgment.
Sec. 7. Procedure where the denial of an appeal is set aside.
Where the denial of an appeal is set aside, the lower court shall be
required to give due course to the appeal and to elevate the record of DEMETRIOU V. CA, 238 SCRA 158 (1994)
Extrinsic fraud is that circumstance that would prevent a party from upon a judgment or order that disposes of the action or
presenting his case fully and fairly. proceeding
upon the expiration of the period to appeal therefrom if
Escolin: Remedy in case of intrinsic fraud is appeal. If the appeal period no appeal has been duly perfected. (1a)
has already lapsed, then there is no other remedy.
If the appeal has been duly perfected and finally resolved,
de Leon: In Demetriou, the petitioners were deemed to have been parties the execution may forthwith be applied for in the
because of publication. But in Anuran, which was a probate proceeding, court of origin,
there should have been publication as well which would have bound the on motion of the judgment obligee,
petitioners as well.
submitting therewith certified true copies of the
judgment or judgments or final order or orders
sought to be enforced and of the entry thereof,
with notice to the adverse party.
The appellate court

may, on motion in the same case, when the interest of
justice so requires, direct the court of origin to issue
the writ of execution. (n)
Requisites for Execution to issue as a matter of right
1. judgment or order that disposes of the action or proceeding

EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
2. either
RULE 39
a. expiration of the period to appeal, if no appeal has been
duly perfected or
SECTION 1. EXECUTION UPON JUDGMENTS OR FINAL
ORDERS. b. the appeal finally resolved
Execution shall issue 3. execution applied for in the court of origin
as a matter of right,
on motion, 4. motion of the judgment obligee, which states the amounts of
the reliefs sought
5. submitting certified true copies of at the time of the filing of such motion,
a. the judgment or judgments or final order or orders sought said court may, in its discretion, order execution of a
to be enforced and judgment or final order even before the expiration of the
period to appeal.
b. of the entry
After the trial court has lost jurisdiction, the motion for
execution pending appeal may be filed in the appellate court.
6. notice to the adverse party
Discretionary execution may only issue upon good reasons to
de Leon: be stated in a special order after due hearing.
Note that though it is the court a quo that executes a final
judgment, it is the clerk of the appellate court that enters it. Hence,
the movant must attach a copy of the entry of judgment before the (b) Execution of several, separate or partial judgments.
court a quo in order to enforce the judgment. A several separate or partial judgment
The appellate court may, on motion in the same case, when the may be executed
interest of justice so requires, direct the court of origin to issue the
writ of execution. under the same terms and conditions as execution of a
judgment or final order pending appeal. (2a)
Requisites for Discretionary Execution (partial judgment, or a

SEC. 2. DISCRETIONARY EXECUTION. judgment pending appeal)
(a) Execution of a judgment or final order pending appeal. 1. notice to the adverse party
On motion of the prevailing party 2. motion of the prevailing party, which state the amounts of
the reliefs sought
with notice to the adverse party
3. with the
filed in the trial court while it has jurisdiction over the
case and is in possession of either the original record a. appellate court after the trial court has lost
or the record on appeal, as the case may be, jurisdiction
b. trial court while the trial court In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection of the
1) has jurisdiction over the case and appeals filed in due time and the expiration of the time
to appeal of the other parties.
2) is in possession of the original record or the
record on appeal xxx
4. due hearing. In either case, prior to the transmittal of the original
record or the record on appeal,
5. good reasons to be stated in a special order
the court may issue orders for the protection
Good reason depends on the discretion of the court.
and preservation of the rights of the parties
Offer to file a bond is not a good reason to order discretionary which do not involve any matter litigated by the
execution, because otherwise such execution would be appeal, xxx, order execution pending appeal in
routinary. accordance with section 2 of Rule 39, and allow
withdrawal of the appeal. (9a)
de Leon: Note that posting of a bond is not a requisite for
execution pending appeal. The court loses jurisdiction only when the record on appeal is
transmitted. cf Sec. 10, Rule 41
SEC. 10. DUTY OF CLERK OF COURT OF THE LOWER

COURT UPON PERFECTION OF APPEAL.
Within thirty (30) days after perfection of all the

appeals
in accordance with the preceding section,

cf RULE 41, SEC. 9
it shall be the duty of the clerk of court of the lower
SEC. 9. PERFECTION OF APPEAL; EFFECT THEREOF. court:

xxx
A partys appeal by notice of appeal is deemed
perfected as to him UPON THE FILING OF THE NOTICE (d) To TRANSMIT THE RECORDS TO THE APPELLATE
OF APPEAL IN DUE TIME. COURT.
xxx If the efforts to complete the records fail,
he shall indicate in his letter of transmittal which he shall certify as complete, to the proper
Regional Trial Court.
the exhibits or transcripts not included in the
records being transmitted to the appellate A copy of his letter of transmittal of the records to the
court, appellate court shall be furnished the parties. (n)
the reasons for their non-transmittal, and Bottomline: The court a quo can order execution pending
appeal while the records on appeal is yet to be transmitted.
the steps taken or that could be taken to have
them available.
The clerk of court shall furnish the parties with copies SEC. 3. STAY OF DISCRETIONARY EXECUTION.
of his letter of transmittal of the records to the
appellate court. (10a) Discretionary execution issued under the preceding section
may be stayed
If the clerk of court fails to transmit the record on appeal even
after the lapse of 30 days, upon approval by the proper court of a sufficient
supersedeas bond filed by the party against whom
the court may still order execution pending appeal. it is directed,
But if the court of origin is an MTC, conditioned upon the performance of the judgment
or order allowed to be executed in case it shall be
the period in which to transmit the record on appeal finally sustained in whole or in part.
is just 15 days. cf Rule 40 Sec. 6
The bond thus given may be proceeded against on motion
SEC. 6. DUTY OF THE CLERK OF COURT. with notice to the surety. (3a)
Within fifteen (15) days from the perfection of the Requisites for Stay of discretionary execution
appeal,
1. approval by the proper court
the clerk of court or the branch clerk of court of the
lower court shall 2. sufficient supersedeas bond filed by the losing party
transmit the original record or the record on 3. conditioned upon the performance of the original
appeal, together with the transcripts and judgment in case it shall be finally sustained in whole or in
exhibits, part
The bond given to stay discretionary exection may be 3. accounting
proceeded against on motion with notice to the surety.
4. support
SEC. 4. JUDGMENTS NOT STAYED BY APPEAL.
5. other judgments declared to be immediately executory,
Judgments in actions for e.g. ejectment cases
injunction, When judgments not stayed by appeal are stayed
receivership, 1. ordered by the trial court.
accounting and 2. appellate court orders the suspending, modifying,

restoring or granting of the injunction, receivership,
support, and accounting, or award of support.
such other judgments as are now or may hereafter de Leon: can judgments not stayed by appeal be stayed by
be declared to be immediately executory, bond?
shall be ENFORCEABLE AFTER THEIR RENDITION and
shall not be stayed by an appeal taken therefrom,
unless otherwise ordered by the trial court.
On appeal therefrom, the appellate court in its discretion may SEC. 5. EFFECT OF REVERSAL OF EXECUTED JUDGMENT.
make an order suspending, modifying, restoring or granting
the injunction, receivership, accounting, or award of support. Where the executed judgment is reversed totally or partially,
or
The stay of execution shall be upon such terms as to bond or
otherwise as may be considered proper for the security or annulled, on appeal or otherwise,
protection of the rights of the adverse party. (4a)
the trial court may, on motion, issue such orders of
Judgments not stayed by appeal RESTITUTION OR REPARATION OF DAMAGES as equity and
justice may warrant under the circumstances. (5a)
1. injunction
Where the executed judgment is modified, on motion, the trial
2. receivership court may issue orders of
1. restitution or (b) In case of the death of the judgment obligor,
2. reparation of damages against his executor or administrator or successor in

interest,
if the judgment be for the recovery of real or personal

SEC. 6. EXECUTION BY MOTION OR BY INDEPENDENT property, or the enforcement of the lien thereon;
ACTION.
(c) In case of the death of the judgment obligor, after
A final and executory judgment or order may be executed on execution is actually levied upon any of his property,
motion within five (5) years from the date of its entry.
the same may be sold for the satisfaction of the judgment
After the lapse of such time, and before it is barred by the obligation, and the officer making the sale shall account to the
statute of limitations, a judgment may be enforced by action. corrsponding executor or administrator for any surplus in his
hands. (7a)
The revived judgment may also be enforced by motion within
five (5) years from the date of its entry and thereafter by How execution may issue or be enforced in case of the death
action before it is barred by the statute of limitations. (6a) of the judgment
A final and executory judgment, or a revived judgment may be 1. obligee upon the application of his executor or
executed administrator, or successor in interest;
1. on motion - within 5 years from entry 2. obligor
2. by action after 5 years from entry, and before it a. if the judgment be for the recovery of real or personal
prescribes property, or the enforcement of the lien thereon
against his executor or administrator or successor in
interest
SEC. 7. EXECUTION IN CASE OF DEATH OF PARTY.
b. If the judgment be for a sum of money
In case of the death of party, execution may issue or be
1) Before levy on execution case continues
enforced in the following manner:
(Rule 3, Sec. 20) and judgment presented as
(a) In case of the death of the judgment obligee, claim in the estate proceedings
upon the application of his executor or administrator, or 2) after execution is actually levied the
successor in interest; property may be sold for the satisfaction of the
judgment obligation, and the officer making the (c) If it be for the sale of real or personal property, to sell
sale shall account to the corresponding such property, describing it, and apply the proceeds in
executor or administrator for any surplus conformity with the judgment, the material parts of which
shall be recited in the writ of execution;
(d) If it be for the delivery of the possession of real or

personal property, to deliver the possession of the same,
describing it, to the party entitled thereto, and to satisfy any
SEC. 8. ISSUANCE, FORM AND CONTENTS OF A WRIT OF
costs, damages, rents, or profits covered by the judgment out
EXECUTION.
of the personal property of the person against whom it was
The writ of execution shall: rendered, and if sufficient personal property cannot be found,
then out of the real property; and
(1) issue in the name of the Republic of the Philippines from
the court which granted the motion; (e) In all cases, the writ of execution shall specifically state
the amount of the interest, costs, damages, rents, or profits
(2) state due as of the date of the issuance of the writ, aside from the
principal obligation under the judgment. For this purpose, the
the name of the court, motion for execution shall specify the amounts of the
foregoing reliefs sought by the movant. (8a)
the case number and title,
de Leon: Note that a WRIT OF EXECUTION IS ALWAYS
the dispositive part of the subject judgment or order; DIRECTED TO A SHERIFF. Hence, mere refusal of a party to
and comply with a writ of execution does not constitute contempt.
(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 after provided: SEC. 9. EXECUTION OF JUDGMENTS FOR MONEY, HOW
ENFORCED.
(a) If the execution be against the property of the judgment
obligor, to satisfy the judgment, with interest, out of the real (a) Immediate payment on demand. The officer shall
or personal property of such judgment obligor; enforce an execution of a judgment for money by demanding
from the judgment obligor the immediate payment of the full
(b) If it be against real or personal property in the hands of amount stated in the writ of execution and all lawful fees.
personal representatives, heirs, devisees, legatees, tenants,
or trustees of the judgment obligor, to satisfy the judgment, The judgment obligor shall pay in
with interest, out of such properties;
cash,
certified bank check payable to the judgment obligee In no case shall the executing sheriff demand that any
or his authorized representative if present at the payment by check be made payable to him.
time of payment.
(B) SATISFACTION BY LEVY.
The lawful fees shall be handed under proper receipt to the
executing sheriff who shall turn over the said amount within If the judgment obligor cannot pay all or part of the obligation
the same day to the clerk of court of the court that issued the in cash, certified bank check or other mode of payment
writ. acceptable to the judgment obligee,
If the judgment obligee or his authorized representative is not the officer shall levy upon the properties of the judgment
present to receive payment, obligor of every kind and nature whatsoever which may be
disposed of for value and not otherwise exempt from
the judgment obligor shall deliver the aforesaid execution giving the latter the option to immediately choose
payment to the executing sheriff. which property or part thereof may be levied upon, sufficient
to satisfy the judgment.
The latter shall turn over all the amounts coming into
his possesssion within the same day If the judgment obligor does not exercise the option, the
officer shall first levy on the personal properties, if any, and
o to the clerk of court of the court that issued the then on the real properties if the personal properties are
writ, or insufficient to answer for the judgment.
o if the same is not practicable, deposit said The sheriff shall sell only a sufficient portion of the personal or
amount to a fiduciary account in the nearest real property of the judgment obligor which has been levied
government depository bank of the Regional upon.
Trial Court of the locality.
When there is more property of the judgment obligor than is
The clerk of court shall thereafter arrange for sufficient to satisfy the judgment and lawful fees, he must sell
the remittance of the deposit to the account of only so much of the personal or real property as is sufficient
the court that issued the writ whose clerk of to satisfy the judgment and lawful fees.
court shall then deliver said payment to the
judgment obligee in satisfactionn of the Real property, stocks, shares, debts, credits, and other
judgment. personal property, or any interest in either real or persoanl
property, may be levied upon in like manner and with like
The excess, if any, shall be delivered to the judgment obligor effect as under a writ of attachment.
while the lawful fees shall be retained by the clerk of court for
disposition as provided by law. (C) GARNISHMENT OF DEBTS AND CREDITS.
The officer may levy on debts due the judgment obligor and the garnishee or garnishees who shall be required to deliver
other credits, including bank deposits, financial interests, the amount due;
royalties, commissions and other personal property not
capable of manual delivery in the posssession or control of otherwise, the choice shall be made by the judgment obligee.
third parties.
The executing sheriff shall observe the same procedure under
Levy shall be made BY SERVING NOTICE upon the person paragraph (a) with respect to delivery of payment to the
owing such debts or having in his possession or control such judgment obligee. (8a, 15a)
credits to which the judgment obligor is entitled.
The garnishment shall cover only such amount as will satisfy

How money judgments are enforced (ILG)
the judgment and all lawful fees.
1. Immediate payment on demand
The garnishee shall make a written report to the court within
five (5) days from service of the notice of garnishment 2. Satisfaction by levy
stating whether or not the judgment obligor has 3. Garnishment of debts and credits
sufficient funds or credits to satisfy the amount of
the judgment. Immediate payment on demand
If not, the report shall state how much funds or 1. officer demands from the judgment obligor the immediate
credits the garnishee holds for the judgment payment of the full amount stated in the writ of execution
obligor. and all lawful fees.
The garnished amount in cash, or certified bank check issued 2. judgment obligor shall pay in
in the name of the judgment obligee,
a. cash
shall be delivered directly to the judgment obligee
WITHIN TEN (10) WORKING DAYS FROM SERVICE OF b. certified bank check payable to the judgment obligee
NOTICE on said garnishing requiring such delivery, or his authorized representative if present at the time
of payment.
EXCEPT THE LAWFUL FEES WHICH SHALL BE PAID
DIRECTLY TO THE COURT. c. In no case shall the executing sheriff demand that any
In the event there are two or more garnishees holding payment by check be made payable to him.
deposits or credits sufficient to satisfy the judgment, the 3. The lawful fees shall be handed under proper receipt to
judgment obligor, if available, shall have the right to indicate the executing sheriff
4. If the judgment obligee or his authorized representative is 3. The judgment obligor has the option to immediately
not present, the judgment obligor shall deliver the choose which property or part thereof may be levied upon,
aforesaid payment to the executing sheriff. sufficient to satisfy the judgment.
5. executing sheriff shall 4. If the judgment obligor does not exercise the option, the
officer shall first levy on the
a. turn over all the amounts coming into his possesssion
within the same day to the clerk the court that issued a. personal properties
the writ, or if the same is not practicable
b. if the personal properties are insufficient, then real
b. deposit said amount to a fiduciary account in the properties
nearest government depository bank of the RTC of the
locality. 5. The sheriff shall sell only a sufficient portion of the
personal or real property of the judgment obligor which
1) The clerk of court shall thereafter arrange has been levied upon.
for the remittance of the deposit to the account
of the court that issued the writ 6. When there is more than sufficient property to satisfy the
judgment and lawful fees, he must sell only so much of the
2) clerk of such court shall then deliver said personal or real property as is sufficient to satisfy the
payment to the judgment obligee in satisfaction judgment and lawful fees.
of the judgment.
7. Real property, stocks, shares, debts, credits, and other
6. Any excess shall be delivered to the judgment obligor personal property, or any interest in either real or
personal property, may be levied upon in like manner and
7. The lawful fees shall be retained by the clerk of court with like effect as under a writ of attachment, cf Rule 57,
Sec. 7
Satisfaction by levy
Sec. 7. Attachment of real and personal property; recording
1. If the judgment obligor cannot pay all or part of the
thereof. Real and personal property shall be attached by the
obligation in cash, certified bank check or other mode of
payment acceptable to the judgment obligee sheriff executing the writ in the following manner:
2. the officer shall levy upon any properties of the judgment (a) Real property, or growing crops thereon, or any interest
obligor therein, standing upon the record of the registry of deed of the
province in the name of the party against whom attachment is
a. which may be disposed of for value and issued, or not appearing at all upon such records, or belonging to
the party against whom attachment is issued and held by any
b. not otherwise exempt from execution
other person, or standing on the records of the registry of deeds (d) Debts and credits, including bank deposits, financial interest,
in the name of any other person, by filing with the registry of royalties, commissions, and other personal property not capable
deeds a copy of the order, together with a description of the of manual delivery, by leaving with the person owing such debts,
property attached, and a notice that it is attached, or that such or having in his possession or under his control, such credits or
real property and any interest therein held by or standing in the other personal property, or with his agent, a copy of the writ, and
name of such other person are attached, and by leaving a copy of notice that the debts owing by him to the party against whom
such order, description, and notice with the occupant of the attachment is issued, and the credits and other personal property
property, if any, or with such other person or his agent if found in his possession, or under his control, belonging to said party,
within the province. Where the property has been brought under are attached in pursuance of such writ;
the operation of either the Land Registration Act or the Property
Registration Decree, the notice shall contain a reference to the (e) The interest of the party whom attachment is issued in
number of the certificate of title, the volume and page in the property belonging to the estate of the decedent, whether as
registration book where the certificate is registered, and the heir, legatee, or devisee, by serving the executor or administrator
registered owner or owners thereof. or other personal representative of the decedent with a copy of
the writ and notice that said interest is attached. A copy of said
The registrar of deed must index attachments filed under this writ of attachment and of said notice shall also be filed in the
section in the names of the applicant, the adverse party, or the office of the clerk of the court in which said estate is being settled
person by whom the property is held or in whose name it stands and served upon the heir, legatee or devisee concerned.
in the records. If the attachment is not claimed on the entire area
of the land covered by the certificate of title, a description If the property sought to be attached is in custodia legis, a copy
sufficiently accurate for the identification of the land or interest of the writ of attachment shall be filed with the proper court or
to be affected shall be included in the registration of such quasi-judicial agency, and notice of the attachment served upon
attachment; the custodian of such property.(7a)
(b) Personal property capable of manual delivery, by taking and Satisfaction by levy on real property
safely keeping it in his custody, after issuing the corresponding
1. filing with the registry of deeds a copy of the order, together with a
receipt therefor;
description of the property attached, and a notice that it is attached,
(c) Stocks or shares, or an interest in stocks or shares, of any or that such real property and any interest therein held by or
corporation or company, by leaving with the president or standing in the name of such other person are attached, and
managing agent thereof, a copy of the writ, and a notice stating
2. by leaving a copy of such order, description, and notice with the
that the stock or interest of the party against whom the
occupant of the property, if any, or with such other person or his
attachment is issued is attached in pursuance of such writ;
agent if found within the province.
3. Where the property has been brought under the operation of either other personal representative of the decedent with a copy of the writ and
the Land Registration Act or the Property Registration Decree, the notice that said interest is attached. A copy of said writ of attachment
notice shall contain a reference to the number of the certificate of and of said notice shall also be filed in the office of the clerk of the court
title, the volume and page in the registration book where the in which said estate is being settled and served upon the heir, legatee or
certificate is registered, and the registered owner or owners thereof. devisee concerned.
4. The registrar of deed must index attachments filed under this section If the property sought to be attached is in custodia legis, a copy of the
in the names of the applicant, the adverse party, or the person by writ of attachment shall be filed with the proper court or quasi-judicial
whom the property is held or in whose name it stands in the records. agency, and notice of the attachment served upon the custodian of such
property.
5. If the attachment is not claimed on the entire area of the land
covered by the certificate of title, a description sufficiently accurate Garnishment of debts and credits
for the identification of the land or interest to be affected shall be
included in the registration of such attachment; 1. The officer may levy on debts due the judgment obligor and other
credits, including
Satisfaction by levy on personal property capable of manual delivery by
taking and safely keeping it in his custody, after issuing the a. bank deposits
corresponding receipt therefor
b. financial interests
Satisfaction by levy on stocks or shares by leaving with the president or
c. royalties
managing agent thereof, a copy of the writ, and a notice stating that the
stock or interest of the party against whom the attachment is issued is d. commissions and
attached in pursuance of such writ
e. other personal property
Satisfaction by levy on debts and credits and other personal property not
capable of manual delivery by leaving with the person owing such 1) not capable of manual delivery
debts, or having in his possession or under his control, such credits or
2) in the posssession or control of third parties.
other personal property, or with his agent, a copy of the writ, and notice
that the debts owing by him to the party against whom attachment is 2. Levy shall be made by serving notice upon the person owing such
issued, and the credits and other personal property in his possession, or debts or having in his possession or control such credits to which the
under his control, belonging to said party, are attached in pursuance of judgment obligor is entitled.
such writ;
3. The garnishment shall cover only such amount as will satisfy the
Satisfaction by levy on interest of the party in property belonging to the judgment and all lawful fees.
estate of the decedent by serving the executor or administrator or
4. The garnishee shall make a written report to the court within 5 days b. deposit said amount to a fiduciary account in the nearest
from service of the notice of garnishment stating government depository bank of the RTC of the locality.
a. whether or not the judgment obligor has sufficient funds or 1) The clerk of court shall thereafter arrange for the
credits to satisfy the amount of the judgment. remittance of the deposit to the account of the court that
issued the writ
b. If not, the report shall state how much funds or credits the
garnishee holds for the judgment obligor. 2) clerk of such court shall then deliver said payment to
the judgment obligee in satisfaction of the judgment.
5. The garnished amount in cash, or certified bank check issued in the
name of the judgment obligee, shall be 9. Any excess shall be delivered to the judgment obligor
a. delivered directly to the judgment obligee within ten 10 working 10. The lawful fees shall be retained by the clerk of court
days from service of notice on said garnishing requiring such
delivery Sec. 10. Execution of judgments for specific act.
b. lawful fees shall be paid directly to the court. (a) Conveyance, delivery of deeds, or other specific acts; vesting
title. If a judgment directs a party who execute a conveyance of land
6. In the event there are two or more garnishees holding deposits or or personal property, or to deliver deeds or other documents, or to
credits sufficient to satisfy the judgment perform any other specific act in connection therewith, and the party
fails to comply within the time specified, the court may direct the act
a. the judgment obligor, if available, shall have the right to indicate to be done at the cost of the disobedient party by some other person
the garnishee or garnishees who shall be required to deliver the appointed by the court and the act when so done shall have like effect
amount due as if done by the party. If real or personla property is situated within
the Philippines, the court in lieu of directing a conveyance thereof
b. otherwise, the choice shall be made by the judgment obligee.
may be an order divest the title of any party and vest it in others,
7. If the judgment obligee or his authorized representative is not which shall have the force and effect of a conveyance executed in due
present, the garnishee shall deliver the payment to the executing form of law. (10a)
sheriff.
(b) Sale of real or personal property. If the judgment be for the
8. executing sheriff shall sale of real or personal property, to sell such property, describing it,
and apply the proceeds in conformity with the judgment. (8[c]a)
a. turn over all the amounts coming into his possesssion within the
same day to the clerk the court that issued the writ, or if the (c) Delivery or restitution of real property. The officer shall
same is not practicable demand of the person against whom the judgment for the delivery or
restitution of real property is rendered and all person claiming rights 3. Delivery or restitution of real property
under him to peaceably vacate the property within three (3) working
days, and restore possession thereof to the judgment obligee; 4. Removal of improvements on property subject of execution
otherwise, the officer shall oust and such persons therefrom with the
5. Delivery of personal property
assistance, if necessary of appropriate peace officers, and employing
such means as may be reasonably necessary to retake possession, and Conveyance, delivery of deeds, or other specific connected acts
place the judgment obligee in possession of such property. Any costs,
damages, rents or profits awarded by the judgment shall be satisfied 1. If a party fails to comply within the given period, the court may direct
in the same manner as a judgment for money. (13a) the act to be done at the cost of the disobedient party by some other
person appointed by the court
(d) Removal of improvements on property subject of execution.
When the property subject of the execution contains improvements 2. The act when so done shall have like effect as if done by the party.
constructed or planted by the judgment obligor or his agent, the
3. If real or personal property is situated within the Philippines, the
officer shall not destroy, demolish or remove said improvements
court
except upon special order of the court issued upon motion of the
judgment obligee after due hearing and after the former has failed to a. in lieu of directing a conveyance thereof
remove the same within a reasonable time fixed by the court. (14a)
b. may by an order divest the title of any party and
Note that the officer can not destroy or remove improvements on the
property on the strength of the writ of execution alone. The judgment c. vest it in others, which shall have the force and effect of a
obligee must move for a special order to demolish, which can only be conveyance executed in due form of law.
issued after hearing and unexercised opportunity for the judgment
obligor to remove his improvements. Sale of real or personal property
(e) Delivery of personal property. In judgments for the delivery 1. sell such property
of personal property, the officer shall take possession of the same and 2. describing it, and
forthwith deliver it to the party entitled thereto and satisfy any
judgment for money as therein provided. (8a) 3. apply the proceeds in conformity with the judgment
Specific acts which may be executed Delivery or restitution of real property
1. Conveyance, delivery of deeds, or other specific connected acts 1. The officer shall demand of the judgment obligor and all person
claiming rights under him
2. Sale of real or personal property
a. to peaceably vacate the property within 3 working days, and
b. restore possession thereof to the judgment obligee Sec. 11. Execution of special judgments. When a judgment
requires the performance of any act other than those mentioned in
c. otherwise, the officer shall the two preceding sections, a certified copy of the judgment shall be
attached to the writ of execution and shall be served by the officer
1) oust and such persons therefrom
upon the party against whom the same is rendered, or upon any other
a) with the assistance, if necessary of appropriate peace person required thereby, or by law, to obey the same, and such party
officers, and or person may be punished for contempt if he disobeys such
judgment. (9a)
b) employing such means as may be reasonably necessary
to retake possession, and Special judgments are acts which can be performed by the judgment
obligor alone (e.g. painting by a famous painter).
2) place the judgment obligee in possession of such
property. Execution of special judgments
2. Any costs, damages, rents or profits awarded by the judgment shall 1. a certified copy of the judgment shall be attached to the writ of
be satisfied in the same manner as a judgment for money. execution and
Removal of improvements on property subject of execution the officer 2. shall be served by the officer upon
shall not destroy, demolish or remove said improvements, except
a. the judgment obligor, or
1. upon special order of the court
b. any other person required thereby, or by law, to obey the same
2. issued upon motion of the judgment obligee
3. such party or person may be punished for contempt if he disobeys
3. after due hearing and such judgment.
4. after the judgment obligor has failed to remove within a reasonable de Leon: Note that disobedience by a party to a writ of execution, by
time fixed by the court. itself, is not contempt because the writ of execution is not directed to a
party. However, in case of special judgments, the judgment is attached
Delivery of personal property to the writ of execution. The judgment is addressed to the party,
disobedience to which would now constitute contempt.
1. the officer shall take possession of the personal property and
Sec. 12. Effect of levy on execution as to third persons. The levy
2. deliver it to the party entitled thereto and
on execution shall create a lien in favor of the judgment obligee over
3. satisfy any judgment for money the right, title and interest of the judgment obligor in such property
at the time of the levy, subject to liens and encumbrances then (h) One fishing boat and accessories not exceeding the total value
existing. (16a) of one hundred thousand pesos owned by a fisherman and by the
lawful use of which he earns his livelihood;
Sec. 13. Property exempt from execution. Except as otherwise
expressly provided by law, the following property, and no other, shall (i) So much of the salaries, wages, or earnings of the judgment
be exempt from execution; obligor of his personal services within the four months preceding the
levy as are necessary for the support of his family;
(a) The judgment obligor's family home as provided by law, or the
homestead in which he resides, and land necessarily used in (j) Lettered gravestones;
connection therewith;
(k) Monies benefits, privileges, or annuities accruing or in any
(b) Ordinary tools and implements personally used by him in hs manner growing out of any life insurance;
trade, employment, or livelihood;
(l) The right to receive legal support, or money or property
(c) Three horses, or three cows, or three carabaos, or other beasts obtained as such support, or any pension or gratuity from the
of burden such as the judgment obligor may select necessarily used Government;
by him in his ordinary occupation;
(m) Properties specially exempt by law.
(d) His necessary clothing and articles for ordinary personal use,
excluding jewelry; But no article or species of property mentioned in his section shall
be exempt from execution issued upon a judgment recovered for its
(e) Household furniture and utensils necessary for housekeeping, price or upon a judgment of foreclosure of a mortgage thereon. (12a)
and used for that purpose by the judgment obligor and his family,
such as the judgment obligor may select, of a value not exceeding one Property exempt from execution
hundred thousand pesos;
1. family home, or the homestead in which he resides, and land
(f) Provisions for individual or family use sufficient for four necessarily used
months;
2. ordinary tools and implements personally used in his trade,
(g) The professional libraries and equipment of judges, lawyers, employment, or livelihood;
physicians, pharmacists, dentists, engineers, surveyors, clergymen,
3. 3 beasts of burden as the judgment obligor may select, necessarily
teachers, and other professionals, not exceeding three hundred
used in his ordinary occupation
thousand pesos in value;
4. necessary clothing and articles for ordinary personal use, excluding
jewelry;
5. Household furniture and utensils necessary for housekeeping, and be enforced by motion. The officer shall make a report to the court
used for that purpose, such as the judgment obligor may select, of a every thirty (30) days on the proceedings taken thereon until the
value not exceeding P100k judgment is satisfied in full, or its effectivity expires. The returns or
periodic reports shall set forth the whole of the proceedings taken,
6. Provisions for individual or family use sufficient for 4 months and shall be filed with the court and copies thereof promptly
furnished the parties. (11a)
7. professional libraries and equipment, not exceeding P300k in value
cf Rule 39, Sec. 6
8. One fishing boat and accessories not exceeding the total value of
P100,000 owned by a fisherman and by the lawful use of which he Sec. 6. Execution by motion or by independent action. A final
earns his livelihood; and executory judgment or order may be executed on motion
within five (5) years from the date of its entry. xxx
9. salaries, wages, or earnings for his personal services within the 4
months preceding the levy as are necessary for the support of his Return of writ of execution
family
1. If the judgment has been satisfied in part or in full - the writ of
10. Lettered gravestones execution shall be returnable to the court
11. Monies benefits, privileges, or annuities accruing or in any manner 2. If the judgment cannot be satisfied in full within 30 days after his
growing out of any life insurance receipt of the writ
12. The right to receive legal support, or money or property obtained as a. the officer shall report to the court and state the reason therefor.
such support, or any pension or gratuity from the Government
b. Such writ shall continue in effect for 5 years from entry (Rule 39,
13. Properties specially exempt by law. Sec. 6)
No property shall be exempt from execution issued upon a judgment c. The officer shall make a report to the court every 30 days on the
recovered for its price or upon a judgment of foreclosure of a mortgage proceedings taken thereon until the judgment is satisfied in full,
thereon. or its effectivity expires.
Sec. 14. Return of writ of execution. The writ of execution shall The returns or periodic reports shall
be returnable to the court issuing it immediately after the judgment
has been satisfied in part or in full. If the judgment cannot be satisfied 1. set forth the whole of the proceedings taken, and
in full within thirty (30) days after his receipt of the writ, the officer
shall report to the court and state the reason therefor. Such writ shall 2. shall be filed with the court and copies thereof promptly furnished
continue in effect during the period within which the judgment may the parties.
Sec. 15. Notice of sale of property on execution. Before the sale sale of real property or personal property not capable of manual
of property on execution, notice thereof must be given as follows: delivery shall be held in the office of the clerk of court of the Regional
Trial Court or the Municipal Trial Court which issued the writ or which
(a) In case of perishable property, by posting written notice of the was designated by the appellate court. In the case of personal
time and place of the sale in three (3) public places, preferably in property capable of manual delivery, the sale shall be held in the place
conspicuous areas of the municipal or city hall, post office and public where the property is located. (18a)
market in the municipality or city where the sale is to take place, for
such time as may be reasonable, considering the character and Notice of sale of property on execution
condition of the property;
1. specify the
(b) In case of other personal property, by posting a similar notice
in the three (3) public places above-mentioned for not less than five a. place
(5) days;
b. date and
(c) In case of real property, by posting for twenty (20) days in the
c. exact time of the sale, which should not be earlier than 9 am and
three (3) public places above-mentioned a similar notice particularly
not later than 2 pm.
describing the property and stating where the property is to be sold,
and if the assessed value of the property exceeds fifty thousand 2. personally served to the judgment obligor, at least 3 days before the
(P50,000.00) pesos, by publishing a copy of the notice once a week for sale, except in case of perishable property where notice shall be
two (2) consecutive weeks in one newspaper selected by raffle, given at any time before the sale
whether in English, Filipino, or any major regional language
published, edited and circulated or, in the absence thereof, having cf Rule 13, Sec. 6
general circulation in the province or city;
Sec. 6. Personal service. Service of the papers may be made by
(d) In all cases, written notice of the sale shall be given to the delivering personally a copy to the party or his counsel, or by
judgment obligor, at least three (3) days before the sale, except as leaving it in his office with his clerk or with a person having
provided in paragraph (a) hereof where notice shall be given at any charge thereof. If no person is found in his office, or his office is
time before the sale, in the same manner as personal service of not known, or he has no office, then by leaving the copy,
pleadings and other papers as provided by section 6 of Rule 13. between the hours of eight in the morning and six in the evening,
at the party's or counsel's residence, if known, with a person of
The notice shall specify the place, date and exact time of the sale sufficient age and discretion then residing therein.
which should not be earlier than nine oclock in the morning and not
later than two oclock in the afternoon. The place of the sale may be 3. posted in a public place
agreed upon by the parties. In the absence of such agreement, the
4. for the following periods
a. perishable property reasonable time considering the character Without such notice or with a defective notice, the sale on execution is
and condition of the property void.
b. other personal property not less than 5 days Sec. 16. Proceedings where property claimed by third person. If
the property levied on is claimed by any person other than the
c. real property for 20 days judgment obligor or his agent, and such person makes an affidavit of
his title thereto or right to the possession thereof, stating the
5. for real property the notice must
grounds of such right or title, and serves the same upon the officer
a. particularly describe the property making the levy and a copy thereof upon the judgment obligee, the
officer shall not be bound to keep the property, unless such judgment
b. state where the property is to be sold obligee, on demand of the officer, files a bond approved by the court
to indemnify the third-party claimant in a sum not less than the value
c. if the assessed value exceeds P50,000 publish a copy of the
of the property levied on. In case of disagreement as to such value,
notice once a week for 2 consecutive weeks in one newspaper
the same shall be determined by the court issuing the writ of
1) selected by raffle execution. No claim for damages for the taking or keeping of the
property may be enforced against the bond unless the action therefor
2) whether in English, Filipino, or any major regional is filed within one hundred twenty (120) days from the date of the
language filing of the bond.
3) published, edited and circulated or, in the absence The officer shall not be liable for damages for the taking or
thereof, having general circulation in the province or city keeping of the property, to any third-party claimant if such bond is
filed. Nothing herein contained shall prevent such claimant or any
Place of the sale third person from vindicating his claim to the property in a separate
1. agreed upon by the parties. action, or prevent the judgment obligee from claiming damages in the
same or a separate action against a third-party claimant who filed a
2. In the absence of such agreement the sale of frivolous or plainly spurious claim.
a. real property or personal property not capable of manual delivery When the writ of execution is issued in favor of the Republic of the
in the office of the clerk of the court which issued the writ or Philippines, or any officer duly representing it, the filing of such bond
which was designated by the appellate court. shall not be required, and in case the sheriff or levying officer is sued
for damages as a result of the levy, he shall be represented by the
b. personal property capable of manual delivery in the place Solicitor General and if held liable therefor, the actual damages
where the property is located adjudged by the court shall be paid by the National Treasurer out of
such funds as may be appropriated for the purpose. (17a)
Requisites for a claim by a 3rd person a. such claimant or any 3rd person from vindicating his claim to the
property in a separate action, or
1. the property is levied
b. the judgment obligee from claiming damages in the same or a
2. the claimant is a person other than the judgment obligor or his agent separate action against a 3rd party claimant who filed a frivolous
or plainly spurious claim.
3. makes an affidavit of
5. When the writ of execution is issued in favor of the Republic of the
a. his title thereto or right to the possession thereof
Philippines, or any officer duly representing it
b. stating the grounds of such right or title
a. the filing of such bond shall not be required, and
4. serves the same upon
b. in case the sheriff or levying officer is sued for damages as a
a. the officer making the levy result of the levy
b. the judgment obligee 1) he shall be represented by the Solicitor General and
Proceedings where property claimed by third person 2) if held liable, the actual damages adjudged by the
court shall be paid by the National Treasurer out of such
1. the officer shall not be bound to keep the property, unless funds as may be appropriated for the purpose.
a. judgment obligee, on demand of the officer, files a bond Note that 3rd party claims over property levied on execution may be
approved by the court to indemnify the 3rd party claimant in a asserted only in a separate action. However, 3rd party claims over
sum not less than the value of the property levied on. property attached may be asserted in the same or a separate action. In
both cases, the judgment obligee may claim damages from a frivolous 3 rd
b. In case of disagreement as to such value, the same shall be
party claimant in the same or in a separate action.
determined by the court issuing the writ of execution.
Sec. 17. Penalty for selling without notice, or removing or defacing
2. The officer shall not be liable for damages for the taking or keeping
notice. An officer selling without the notice prescribed by section 15
of the property, to any 3d party claimant if such bond is filed.
of this Rule shall be liable to pay punitive damages in the amount of
3. No claim for damages for the taking or keeping of the property may five thousand (P5,000.00) pesos to any person injured thereby, in
be enforced against the bond unless the action therefor is filed within addition to his actual damages, both to be recovered by motion in the
120 days from the date of the filing of the bond. same action; and a person willfully removing or defacing the notice
posted, if done before the sale, or before the satisfaction of the
4. Nothing herein contained shall prevent judgment if it be satisfied before the sale, shall be liable to pay five
thousand (P5,000.000) pesos to any person injured by reason thereof, obligor or his authorized representative, unless otherwise directed by
in addition to his actual damages, to be recovered by motion in the the judgment or order of the court. When the sale is of real property,
same action. (19a) consisting of several known lots, they must be sold separately; or,
when a portion of such real property is claimed by a third person, he
A person may be liable for actual damages and punitive damages of may require it to be sold separately. When the sale is of personal
P5,000 to any person injured due to the following acts property capable of manual delivery, it must be sold within view of
those attending the same and in such parcels as are likely to bring the
1. An officer selling without the notice
highest price. The judgment obligor, if present at the sale, may direct
2. any person willfully removing or defacing the notice posted the order in which property, real or personal, shall be sold, when such
property consists of several known lots or parcels which can be sold to
a. if done before the sale, or advantage separately. Neither the officer conducting the execution
sale, nor his deputies, can become a purchaser, nor be interested
b. before the satisfaction of the judgment if it be satisfied before
directly or indirectly in any purchase at such sale. (21a)
the sale
How property sold on execution
Such damages may be recovered by motion in the same action
1. at public auction
Sec. 18. No sale if judgment and costs paid. At any time before
the sale of property on execution, the judgment obligor may prevent 2. to the highest bidder
the sale by paying the amount required by the execution and the
costs that have been incurred therein. (20a) 3. to start at the exact time fixed in the notice
At any time before the sale of property on execution, the judgment 4. After sufficient property has been sold to satisfy the execution, no
obligor may prevent the sale by paying more shall be sold and any excess property or proceeds of the sale
shall be promptly delivered to the judgment obligor or his authorized
1. the amount required by the execution representative, unless otherwise directed by the judgment or order
of the court.
2. costs incurred therein
5. When the sale is of real property
Sec. 19. How property sold on execution; who may direct manner
and order of sale. All sales of property under execution must be a. consisting of several known lots must be sold separately; or
made at public auction, to the highest bidder, to start at the exact
time fixed in the notice. After sufficient property has been sold to b. a portion of which is claimed by a 3rd person he may require it to
satisfy the execution, no more shall be sold and any excess property be sold separately
or proceeds of the sale shall be promptly delivered to the judgment
6. When the sale is of personal property capable of manual delivery, it b. shall not be responsible for any loss occasioned thereby
must be sold
2. the court may
a. within view of those attending the same and
a. order the refusing purchaser to pay into the court the amount of
b. in such parcels as are likely to bring the highest price. such loss, with costs, and
7. The judgment obligor, if present at the sale, may direct the order in b. punish him for contempt if he disobeys the order.
which property shall be sold, when such property consists of several
known lots or parcels which can be sold to advantage separately. c. The amount of such payment shall be for the benefit of the
person entitled to the proceeds of the execution, unless the
8. Neither the officer conducting the execution sale, nor his deputies, execution has been fully satisfied, in which event such proceeds
can become a purchaser, nor be interested directly or indirectly in shall be for the benefit of the judgment obligor.
any purchase at such sale.
d. The officer may thereafter reject any subsequent bid of such
Sec. 20. Refusal of purchaser to pay. If a purchaser refuses to purchaser who refuses to pay.
pay the amount bid by him for property struck off to him at a sale
under execution, the officer may again sell the property to the Sec. 21. Judgment obligee as purchaser. When the purchaser is
highest bidder and shall not be responsible for any loss occasioned the judgment obligee, and no third-party claim has been filed, he
thereby; but the court may order the refusing purchaser to pay into need not pay the amount of the bid if it does not exceed the amount
the court the amount of such loss, with costs, and may punish him for of his judgment. If it does, he shall pay only the excess. (23a)
contempt if he disobeys the order. The amount of such payment shall
Sec. 22. Adjournment of sale. By written consent of the
be for the benefit of the person entitled to the proceeds of the
judgment obligor and obligee, or their duly authorized
execution, unless the execution has been fully satisfied, in which
representatives, the officer may adjourn the sale to any date and time
event such proceeds shall be for the benefit of the judgment obligor.
agreed upon by them. Without such agreement, he may adjourn the
The officer may thereafter reject any subsequent bid of such
sale from day to day if it becomes necessary to do so for lack of time
purchaser who refuses to pay. (22a)
to complete the sale on the day fixed in the notice or the day to which
If a purchaser refuses to pay the amount bid by him for property struck it was adjourned. (24a)
off to him at a sale under execution
When officer may adjourn the sale
1. the officer
1. By written consent of the judgment obligor and obligee, or their duly
a. may again sell the property to the highest bidder and authorized representatives to any date and time agreed upon by
them
2. Without such agreement from day to day if it becomes necessary to When the purchaser of any personal property, not capable of manual
do so for lack of time to complete the sale on the day fixed in the delivery, pays the purchase price
notice or the day to which it was adjourned.
1. the officer making the sale must execute and deliver to the purchaser
Sec. 23. Conveyance to purchaser of personal property capable of a certificate of sale
manual delivery. When the purchaser of any personal property,
capable of manual delivery, pays the purchase price, the officer 2. Such certificate conveys to the purchaser all the rights which the
making the sale must deliver the property to the purchaser and, if judgment obligor had in such property as of the date of the levy on
desired, execute and deliver to him a certificate of sale. The sale execution or preliminary attachment.
conveys to the purchaser all the rights which the judgment obligor
Sec. 25. Conveyance of real property; certificate thereof given to
had in such property as of the date of the levy on execution or
purchaser and filed with registry of deeds. Upon a sale of real
preliminary attachment. (25a)
property, the officer must give to the purchaser a certificate of sale
When the purchaser of any personal property, capable of manual containing:
delivery, pays the purchase price
(a) A particular description of the real property sold;
1. the officer making the sale must deliver the property to the
(b) The price paid for each distinct lot or parcel;
purchaser and
(c) The whole price paid by him;
2. if desired, the officer may execute and deliver to him a certificate of
sale. (d) A statement that the right of redemption expires one (1) year
from the date of the registration of the certificate of sale.
3. The sale conveys to the purchaser all the rights which the judgment
obligor had in such property as of the date of the levy on execution or Such certificate must be registered in the registry of deeds of the
preliminary attachment. place where the property is situated. (27a)
Sec. 24. Conveyance to purchaser of personal property not capable Upon a sale of real property, the officer must give to the purchaser a
of manual delivery. When the purchaser of any personal property, certificate of sale containing:
not capable of manual delivery, pays the purchase price, the officer
making the sale must execute and deliver to the purchaser a 1. A particular description of the real property sold
certificate of sale. Such certificate conveys to the purchaser all the
2. The price paid for each distinct lot or parcel
rights which the judgment obligor had in such property as of the date
of the levy on execution or preliminary attachment. (26a) 3. The whole price paid by him
4. A statement that the right of redemption expires 1 year from the A mortgagee can be a redemptioner even if his mortgage has not yet
date of the registration of the certificate of sale. matured, but his mortgage contract must have been executed after the
entry of judgment.
Such certificate must be registered in the registry of deeds of the place
where the property is situated. de Leon: Note that in judicial foreclosure sale, generally there is no right
of redemption, only equity of redemption. In sale of estate property to
Sec. 26. Certificate of sale where property claimed by third person. pay off debts of the estate, there is no redemption at all. Only in
When a property sold by virtue of a writ of execution has been extrajudicial foreclosure sale and sale on execution is there the right of
claimed by a third person, the certificate of sale to be issued by the redemption.
sheriff pursuant to sections 23, 24 and 25 of this Rule shall make
express mention of the existence of such third-party claim. (28a) Sec. 28. Time and manner of, and amounts payable on, successive
redemptions; notice to be given and filed. The judgment obligor, or
Sec. 27. Who may redeem real property so sold. Real property redemptioner, may redeem the property from the purchaser, at any
sold as provided in the last preceding section, or any part thereof sold time within one (1) year from the date of the registration of the
separately, may be redeemed in the manner hereinafter provided, by certificate of sale, by paying the purchaser the amount of his
the following persons: purchase, with one per centum per month interest thereon in
addition, up to the time of redemption, together with the amount of
(a) The judgment obligor, or his successor in interest in the whole
any assessments or taxes which the purchaser may have paid thereon
or any part of the property;
after purchase, and interest on such last named amount at the same
(b) A creditor having a lien by virtue of an attachment, judgment rate; and if the purchaser be also a creditor having a prior lien to that
or mortgage on the property sold, or on some part thereof, of the redemptioner, other than the judgment under which such
subsequent to the lien under which the property was sold. Such purchase was made, the amount of such other lien, with interest.
redeeming creditor is termed a redemptioner. (29a)
Property so redeemed may again be redeemed within sixty (60)
Real property sold, or any part thereof sold separately, may be redeemed days after the last redemption upon payment of the sum paid on the
by the following persons: last redemption, with two per centum thereon in addition, and the
amount of any assessments or taxes which the last redemptioner may
1. judgment obligor, or his successor in interest in the whole or any part have paid thereon after redemption by him, with interest on such
of the property; last-named amount, and in addition, the amount of any liens held by
said last redemptioner prior to his own, with interest. The property
2. Redemptioner a creditor having a lien by virtue of an attachment,
may be again, and as often as a redemptioner is so disposed,
judgment or mortgage on the property sold, or on some part thereof,
redeemed from any previous redemptioner within sixty (60) days after
subsequent to the lien under which the property was sold
the last redemption, on paying the sum paid on the last previous
redemption, with two per centum thereon in addition, and the
amounts of any assessments or taxes which the last previous a. the sum paid on the last redemption, with additional 2%
redemptioner paid after the redemption thereon, with interest
thereon, and the amount of any liens held by the last redemptioner b. the amount of any assessments or taxes which the last
prior to his own, with interest. redemptioner may have paid thereon after redemption by him,
with interest
Written notice of any redemption must be given to the officer who
made the sale and a duplicate filed with the registry of deeds of the c. the amount of any liens held by said last redemptioner prior to
place, and if any assessments or taxes are paid by the redemptioner his own, with interest.
or if he has or acquires any lien other than that upon which the
4. The property may be again, and as often as a redemptioner is so
redemption was made, notice thereof must in like manner be given to
disposed, similarly redeemed from any previous redemptioner within
the officer and filed with the registry of deeds; if such notice be not
60 days after the last redemption
filed, the property may be redeemed without paying such
assessments, taxes, or liens. (30a) 5. Written notice of any redemption must be given to the officer who
made the sale and a duplicate filed with the registry of deeds of the
The judgment obligor, or redemptioner, may redeem the property from
place
the purchaser
6. if any assessments or taxes are paid by the redemptioner or if he has
1. at any time within 1 year from the date of the registration of the
or acquires any lien other than that upon which the redemption was
certificate of sale
made, notice thereof must in like manner be given to the officer and
2. by paying the purchaser filed with the registry of deeds
a. the amount of his purchase 7. if such notice be not filed, the property may be redeemed without
paying such assessments, taxes, or liens.
b. amount of any assessments or taxes which the purchaser may
have paid after purchase Sec. 29. Effect of redemption by judgment obligor, and a certificate
to be delivered and recorded thereupon; to whom payments on
c. if the purchaser be also a creditor having a prior lien to that of the redemption made. If the judgment obligor redeems, he must make
redemptioner, other than the judgment under which such the same payments as are required to effect a redemption by a
purchase was made, the amount of such other lien redemptioner, whereupon, no further redemption shall be allowed
and he is restored to his estate. The person to whom the redemption
d. with 1% per month interest up to the time of redemption payment is made must execute and deliver to him a certificate of
redemption acknowledged before a notary public or other officer
3. Property redeemed may again be redeemed within 60 days after the
authorized to take acknowledgments of conveyances of real property.
last redemption by a redemptioner, upon payment of
Such certificate must be filed and recorded in the registry of deeds of
the place in which the property is situated, and the registrar of deeds thereof, certified by the registrar of deeds; or an original or certified
must note the record thereof on the margin of the record of the copy of any assignment necessary to establish his claim; and an
certificate of sale. The payments mentioned in this and the last affidavit executed by him or his agent, showing the amount then
preceding sections may be made to the purchaser or redemptioner, or actually due on the lien. (32a)
for him to the officer who made the sale. (31a)
A redemptioner must produce to the officer, or person from whom he
If the judgment obligor redeems seeks to redeem, and serve with his notice to the officer
1. he must make the same payments as are required to effect a 1. either

redemption by a redemptioner
a. a copy of the judgment or final order under which he claims the
2. no further redemption shall be allowed and he is restored to his right to redeem, certified by the clerk of the court wherein the
estate judgment or final order is entered; or
3. The person to whom the redemption payment is made must execute b. if he redeems upon a mortgage or other lien, a memorandum of
and deliver to him a certificate of redemption the record thereof, certified by the registrar of deeds; or
a. acknowledged before a notary public or other officer authorized c. an original or certified copy of any assignment necessary to
to take acknowledgments of conveyances of real property establish his claim
b. filed and recorded in the registry of deeds of the place in which 2. and an affidavit executed by him or his agent, showing the amount
the property is situated then actually due on the lien.
4. the registrar of deeds must note the record thereof on the margin of Sec. 31. Manner of using premises pending redemption; waste
the record of the certificate of sale. restrained. Until the expiration of the time allowed for redemption,
the court may, as in other proper cases, restrain the commission of
5. The payments may be made to the purchaser or redemptioner, or for waste on the property by injunction, on the application of the
him to the officer who made the sale. purchaser or the judgment obligee, with or without notice; but it is
not waste for a person in possession of the property at the time of the
Sec. 30. Proof required of redemptioner. A redemptioner must
sale, or entitled to possession afterwards, during the period allowed
produce to the officer, or person from whom he seeks to redeem, and
for redemption, to continue to use it in the same manner in which it
serve with his notice to the officer a copy of the judgment or final
was previously used; or to use it in the ordinary course of husbandry;
order under which he claims the right to redeem, certified by the clerk
or to make the necessary repairs to buildings thereon while he
of the court wherein the judgment or final order is entered; or, if he
occupies the property. (33a)
redeems upon a mortgage or other lien, a memorandum of the record
Until the expiration of the time allowed for redemption, the court may All rents, earnings and income derived from the property pending
restrain the commission of waste on the property redemption shall belong to the judgment obligor until the expiration of
his period of redemption.
1. by injunction
Sec. 33. Deed and possession to be given at expiration of
2. on the application of the purchaser or the judgment obligee redemption period; by whom executed or given. If no redemption be
made within one (1) year from the date of the registration of the
3. with or without notice
certificate of sale, the purchaser is entitled to a conveyance and
4. it is not waste for a person in possession of the property at the time possession of the property; or, if so redeemed whenever sixty (60)
of the sale, or entitled to possession afterwards, during the period days have elapsed and no other redemption has been made, and
allowed for redemption, to notice thereof given, and the time for redemption has expired, the
last redemptioner is entitled to the conveyance and possession; but in
a. continue to use it in the same manner in which it was previously all cases the judgment obligor shall have the entire period of one (1)
used; or year from the date of the registration of the sale to redeem the
property. The deed shall be executed by the officer making the sale or
b. use it in the ordinary course of husbandry; or
by his successor in office, and in the latter case shall have the same
c. make the necessary repairs to buildings thereon while he validity as though the officer making the sale had continued in office
occupies the property and executed it.
Sec. 32. Rents, earnings and income of property pending Upon the expiration of the right of redemption, the purchaser or
redemption. The purchaser or a redemptioner shall not be entitled redemptioner shall be substituted to and acquire all the rights, title,
to receive the rents, earnings and income of the property sold on interest and claim of the judgment obligor to the property as of the
execution, or the value of the use and occupation thereof when such time of the levy. The possession of the property shall be given to the
property is in the possession of a tenant. All rents, earnings and purchaser or last redemptioner by the same officer unless a third
income derived from the property pending redemption shall belong to party is actually holding the property adversely to the judgment
the judgment obligor until the expiration of his period of redemption. obligor. (35a)
(34a)
In all cases the judgment obligor shall have the entire period of 1 year
The purchaser or a redemptioner shall not be entitled to receive from the date of the registration of the sale to redeem the property.
1. the rents, earnings and income of the property sold on execution, or The purchaser is entitled to a conveyance and possession of the property
if no redemption be made within 1 year from the date of the registration
2. the value of the use and occupation thereof when such property is in of the certificate of sale.
the possession of a tenant.
The last redemptioner is entitled to the conveyance and possession of motion, have the original judgment revived in his name for the whole
the property price with interest, or so much thereof as has been delivered to the
judgment obligor. The judgment so revived shall have the same force
1. whenever 60 days have elapsed and effect as an original judgment would have as of the date of the
revival and no more. (36a)
2. no other redemption has been made, and
Requisites for purchaser on execution of real property to recovery price
3. notice thereof given, and
or revive judgment
4. the time for redemption has expired
1. the purchaser of real property sold on execution, or his successor in
If the purchaser or last redemptioner is entitled to the conveyance and interest, either
possession of the property
a. fails to recover the possession thereof, or
1. The deed shall be executed by the officer making the sale or by his
b. is evicted because of
successor in office
1) irregularities in the proceedings concerning the sale,
2. Upon the expiration of the right of redemption, he shall be
or
substituted to and acquire all the rights, title, interest and claim of
the judgment obligor to the property as of the time of the levy. 2) the judgment has been reversed or set aside, or
3. The possession of the property shall be given to the purchaser or last 3) the property sold was exempt from execution, or
redemptioner by the same officer unless a 3rd party is actually holding
the property adversely to the judgment obligor. 4) a third person has vindicated his claim to the
property
Sec. 34. Recovery of price if sale not effective; revival of judgment.
If the purchaser of real property sold on execution, or his successor 2. Either
in interest, fails to recover the possession thereof, or is evicted
therefrom, in consequence of irregularities in the proceedings a. on motion in the same action or in a separate action recover from
concerning the sale, or because the judgment has been reversed or the judgment obligee
set aside, or because the property sold was exempt from execution,
1) the price paid, with interest, or
or because a third person has vindicated his claim to the property, he
may on motion in the same action or in a separate action recover from 2) so much thereof as has not been delivered to the
the judgment obligee the price paid, with interest, or so much thereof judgment obligor; or
as has not been delivered to the judgment obligor; or he may, on
b. on motion have the original judgment revived in his name
1) for the whole price with interest, or Sec. 36. Examination of judgment obligor when judgment
unsatisfied. When the return of a writ of execution issued against
2) so much thereof as has been delivered to the property of a judgment obligor, or any one of several obligors in the
judgment obligor. same judgment, shows that the judgment remains unsatisfied, in
whole or in part, the judgment obligee, at any time after such return
The judgment so revived shall have the same force and effect as an
is made, shall be entitled to an order from the court which rendered
original judgment would have as of the date of the revival and no more.
the said judgment, requiring such judgment obligor to appear and be
Sec. 35. Right to contribution or reimbursement. When property examined concerning his property and income before such court or
liable to an execution against several persons is sold thereon, and before a commissioner appointed by it, at a specified time and place;
more than a due proportion of the judgment is satisfied out of the and proceedings may thereupon be had for the application of the
proceeds of the sale of the property of one of them, or one of them property and income of the judgment obligor towards the satisfaction
pays, without a sale, more than his proportion, he may compel a of the judgment. But no judgment obligor shall be so required to
contribution from the others; and when a judgment is upon an appear before a court or commissioner outside the province or city in
obligation of one of them, as security for another, and the surety pays which such obligor resides or is found. (38a)
the amount, or any part thereof, either by sale of his property or
Requisites for other property and income of the judgment obligor may be
before sale, he may compel repayment from the principal. (37a)
applied to a judgment against a property of the judgment obligor
When a judgment obligor can compel contribution from other judgment
1. When the return of a writ of execution issued against property shows
obligors
that the judgment remains unsatisfied, in whole or in part,
1. more than a due proportion of the judgment is satisfied out of the
2. an order from the court requiring such judgment obligor to appear
proceeds of the sale on execution of the property of one of the
and be examined concerning his property and income
judgment obligors, or
a. before such court or before a commissioner appointed by it
2. a judgment obligor pays, without a sale, more than his proportion
b. at a specified time and place
Requisites for a judgment obligor to claim reimbursement from other
judgment obligors But no judgment obligor shall be so required to appear before a court or
commissioner outside the province or city in which such obligor resides
1. a judgment is upon an obligation of one of them, as security for
or is found.
another
Sec. 37. Examination of obligor of judgment obligor. When the
2. the surety pays the amount, or any part thereof
return of a writ of execution against the property of a judgment
obligor shows that the judgment remains unsatisfied, in whole or in
part, and upon proof to the satisfaction of the court which issued the a. all credits due the judgment obligor and
writ, that a person, corporation, or other juridical entity has property
of such judgment obligor or is indebted to him, the court may, by an b. all money and property of the judgment obligor in the possession
order, require such person, corporation, or other juridical entity, or or in the control of such person, corporation, or juridical entity
any officer or member thereof, to appear before the court or a from the time of service
commissioner appointed by it, at a time and place within the province
5. the court may also require notice of such proceedings to be given to
or city where such debtor resides or is found, and be examined
any party to the action in such manner as it may deem proper.
concerning the same. The service of the order shall bind all credits due
the judgment obligor and all money and property of the judgment In case the person denies the judgment obligors ownership of the
obligor in the possession or in the control of such person, corporation, property in his possession, cf Rule 39, Sec. 43
or juridical entity from the time of service; and the court may also
require notice of such proceedings to be given to any party to the Sec. 43. Proceedings when indebtedness denied or another person
action in such manner as it may deem proper. (39a) claims the property. If it appears that a person or corporation,
alleged to have property of the judgment obligor or to be
Procedure for Examination of obligor of judgment obligor indebted to him, claims an interest in the property adverse to
him or denies the debt, the court may authorize, by an order
1. When the return of a writ of execution against the property shows
made to that effect, the judgment obligee to institute an action
that the judgment remains unsatisfied, in whole or in part, and
against such person or corporation for the recovery of such
2. upon proof to the satisfaction of the court which issued the writ, that interest or debt, forbid a transfer or other disposition of such
a person, corporation, or other juridical entity has property of such interest or debt within one hundred twenty (120) days from
judgment obligor or is indebted to him, notice of the order, and may punish disobedience of such order
as for contempt. Such order may be modified or vacated at any
3. the court may, by an order, require such person, corporation, or time by the court which issued it, or by the court in which the
other juridical entity, or any officer or member thereof, action is brought, upon such terms as may be just.
a. to appear before the court or a commissioner appointed by it, Sec. 38. Enforcement of attendance and conduct of examination.
A party or other person may be compelled, by an order or subpoena,
b. at a time and place within the province or city where such debtor to attend before the court or commissioner to testify as provided in
resides or is found, and the two preceding sections, and upon failure to obey such order or
subpoena or to be sworn, or to answer as a witness or to subscribe his
c. be examined concerning the same.
deposition, may be punished for contempt as in other cases.
4. The service of the order shall bind Examinations shall not be unduly prolonged, but the proceedings
may be adjourned from time to time, until they are completed. If the
examination is before a commissioner, he must take it in writing and necessary to satisfy the judgment, in the manner prescribed in section
certify it to the court. All examinations and answers before a court or 9 of this Rule, and the sheriffs receipt shall be a sufficient discharge
commissioner must be under oath, and when a corporation or other for the amount so paid or directed to be credited by the judgment
juridical entity answers, it must be on the oath of an authorized obligee on the execution. (41a)
officer or agent thereof. (40a)
Requisites for sheriffs receipt to be a sufficient discharge of the
Enforcement of attendance and conduct of examination judgment obligors obligor for the amount so paid or directed to be
credited by the judgment obligee on the execution
1. Any person may be compelled, by an order or subpoena, to attend
before the court or commissioner to testify 1. After a writ of execution against property has been issued
2. he may be punished for contempt upon failure to 2. a person indebted to the judgment obligor
a. obey such order or subpoena or 3. pays to the sheriff holding the writ of execution the amount of his
debt or so much thereof as may be necessary to satisfy the judgment
b. be sworn, or
Sec. 40. Order for application of property and income to
c. answer as a witness or satisfaction of judgment. The court may order any property of the
judgment obligor, or money due him, not exempt from execution, in
d. subscribe his deposition
the hands of either himself or another person, or of a corporation or
3. Examinations shall not be unduly prolonged, but the proceedings other juridical entity, to be applied to the satisfaction of the
may be adjourned from time to time, until they are completed. judgment, subject to any prior rights over such property.
4. If the examination is before a commissioner, he must take it in If, upon investigation of his current income and expenses, it
writing and certify it to the court. appears that the earnings of the judgment obligor for his personal
services are more than necessary for the support of his family, the
5. All examinations and answers before a court or commissioner must court may order that he pay the judgment in fixed monthly
be under oath, and when a corporation or other juridical entity installments, and upon his failure to pay any such installment when
answers, it must be on the oath of an authorized officer or agent due without good excuse, may punish him for indirect contempt.
thereof. (42a)
Sec. 39. Obligor may pay execution against obligee. After a writ Requisites for property applied to satisfaction of judgment via court
of execution against property has been issued, a person indebted to order
the judgment obligor may pay to the sheriff holding the writ of
execution the amount of his debt or so much thereof as may be 1. properties not exempt from execution, either
a. property of the judgment obligor 2. also forbid
b. or money due him a. a transfer or
2. in the hands of either b. other disposition, or
a. himself or c. any interference
b. another person, or Sec. 42. Sale of ascertainable interest of judgment obligor in real
estate. If it appears that the judgment obligor has an interest in real
c. a corporation or estate in the place in which proceedings are had, as mortgagor or
mortgagee or otherwise, and his interest therein can be ascertained
d. other juridical entity,
without controversy, the receiver may be ordered to sell and convey
3. subject to any prior rights over such property. such real estate or the interest of the obligor therein; and such sale
shall be conducted in all respects in the same manner as is provided
Requisites for the court to order the judgment obligor to pay the for the sale of real estate upon execution, and the proceedings
judgment in fixed monthly installments thereon shall be approved by the court before the execution of the
deed. (44a)
1. upon investigation of his current income and expenses
Requisites for a receiver to be ordered to sell and convey interest of the
2. the earnings of the judgment obligor for his personal services are
judgment obligor in real estate
more than necessary for the support of his family
1. the judgment obligor has an interest in real estate in the place in
Upon his failure to pay any such installment when due without good
which proceedings are had, and
excuse, he may be punished for indirect contempt.
2. his interest therein can be ascertained without controversy,
Sec. 41. Appointment of receiver. The court may appoint a
receiver of the property of the judgment obligor; and it may also 3. such sale shall be conducted in all respects in the same manner as is
forbid a transfer or other disposition of, or any interference with, the provided for the sale of real estate upon execution
property of the judgment obligor not exempt from execution. (43a)
4. proceedings thereon shall be approved by the court before the
As to the properties of the judgment obligor not exempt from execution, execution of the deed.
the court may
Sec. 43. Proceedings when indebtedness denied or another person
1. appoint a receiver, and claims the property. If it appears that a person or corporation,
alleged to have property of the judgment obligor or to be indebted to
him, claims an interest in the property adverse to him or denies the admission by the judgment obligee or his counsel on the face of the
debt, the court may authorize, by an order made to that effect, the record of the judgment. (46a)
judgment obligee to institute an action against such person or
corporation for the recovery of such interest or debt, forbid a transfer When clerk of court may enter in the court docket and in the execution
or other disposition of such interest or debt within one hundred book the satisfaction of a judgment
twenty (120) days from notice of the order, and may punish
1. upon the return of a writ of execution showing the full satisfaction of
disobedience of such order as for contempt. Such order may be
the judgment, or
modified or vacated at any time by the court which issued it, or by the
court in which the action is brought, upon such terms as may be just. 2. upon the filing of an admission to the satisfaction of the judgment
(45a) executed and acknowledged in the same manner as a conveyance of
real property by
If it appears that a person or corporation, alleged to have property of, or
is indebted to the judgment obligor, claims an interest in the property a. the judgment obligee or
adverse to the judgment obligor or denies the debt, the court may
b. by his counsel, unless a revocation of his authority is filed, or
1. authorize the judgment obligee to institute an action against such
person or corporation for the recovery of such interest or debt 3. upon the endorsement of such admission by the judgment obligee or
his counsel on the face of the record of the judgment.
2. forbid a transfer or other disposition of such interest or debt within
120 days from notice of the order, and Sec. 45. Entry of satisfaction with or without admission.
Whenever a judgment is satisfied in fact, or otherwise than upon an
3. punish disobedience of such order as contempt. execution, on demand of the judgment obligor, the judgment obligee
or his counsel must execute and acknowledge, or indorse, an
Such order may be modified or vacated at any time by the court which
admission of the satisfaction as provided in the last preceding section,
issued it, or by the court in which the action is brought, upon such terms
and after notice and upon motion the court may order either the
as may be just.
judgment obligee or his counsel to do so, or may order the entry of
Sec. 44. Entry of satisfaction of judgment by clerk of court. satisfaction to be made without such admission. (47a)
Satisfaction of a judgment shall be entered by the clerk of court in the
Whenever a judgment is satisfied in fact, or otherwise than upon an
court docket, and in the execution book, upon the return of a writ of
execution,
execution showing the full satisfaction of the judgment, or upon the
filing of an admission to the satisfaction of the judgment executed 1. on demand of the judgment obligor,
and acknowledged in the same manner as a conveyance of real
property by the judgment obligee or by his counsel unless a 2. the judgment obligee or his counsel must execute and acknowledge,
revocation of his authority is filed, or upon the endorsement of such or indorse, an admission of the satisfaction
3. If not, after notice and upon motion the court may order of a deceased person, or in respect to the personal, political, or legal
condition or status of a particular person or his relationship to
a. either the judgment obligee or his counsel to do so, or another, the judgment or final order is conclusive upon the title to the
thing, the will or administration, or the condition, status or
b. the entry of satisfaction to be made without such admission.
relationship of the person; however, the probate of a will or granting
Sec. 46. When principal bound by judgment against surety. of letters of administration shall only be prima facie evidence of the
When a judgment is rendered against a party who stands as surety for death of the testator or intestate;
another, the latter is also bound from the time that he has notice of
(b) In other cases, the judgment or final order is, with respect to
the action or proceeding, and an opportunity at the suretys request
the matter directly adjudged or as to any other matter that could
to join in the defense. (48a)
have been raised in relation thereto, conclusive between the parties
Requisites for principal to be bound by judgment against surety and their successors in interest by title subsequent to the
commencement of the action or special proceeding, litigating for the
1. a judgment is rendered against a party who stands as surety for same thing and under the same title and in the same capacity; and
another
(c) In any other litigation between the same parties or their
2. principal has successors in interest, that only is deemed to have been adjudged in a
former judgment or final order which appears upon its face to have
a. notice of the action or proceeding
been so adjudged, or which was actually and necessarily included
b. an opportunity at the suretys request to join in the defense therein or necessary thereto. (49a)
cf Rule 9, Sec. 2 Memorize requisites of res judicata!
Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. Effect of judgment or final order
A compulsory counterclaim, or a cross-claim, not set up shall
1. against a specific thing conclusive upon the title to the thing
be barred. (4a)
2. in respect to the probate of a will, or the administration of the estate
Sec. 47. Effect of judgments or final orders. The effect of a
of a deceased person conclusive upon the will or administration,
judgment or final order rendered by a court of the Philippines, having
but only prima facie evidence of the death of the testator or intestate
jurisdiction to pronounce the judgment or final order, may be as
follows: 3. in respect to the personal, political, or legal condition or status of a
particular person or his relationship to another - conclusive upon the
(a) In case of a judgment or final order against a specific thing, or
condition, status or relationship of the person
in respect to the probate of a will, or the administration of the estate
4. Res judicata: conclusive between the parties and their successors in 2. against a person presumptive evidence of a right as between the
interest by title subsequent to the commencement of the action or parties and their successors in interest by a subsequent title.
special proceeding, litigating for the same thing and under the same
title and in the same capacity, with respect to 3. In either case may be repelled by evidence of
a. the matter directly adjudged or a. want of jurisdiction
b. any other matter that could have been raised in relation thereto b. want of notice to the party
5. In any other litigation between the same parties or their successors in c. collusion
interest that only is deemed to have been adjudged in a former
d. fraud, or
judgment or final order
e. clear mistake of law or fact
a. which appears upon its face to have been so adjudged, or
CASES
b. which was actually and necessarily included therein or necessary
thereto
ENGINEERING CONSTRUCTION V. NPC, 163 SCRA
Sec. 48. Effect of foreign judgments or final orders. The effect of 9 (1988)
a judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order is as follows: FACTS ECI filed a complaint for damages against NPC in the Manila CFI
alleging that it suffered damages to its facilities and equipment due to
(a) In case of a judgment or final order upon a specific thing, the inundation of its campsite as a direct result of the improper and careless
judgment or final order is conclusive upon the title to the thing; and opening by NPC of the spillway gates of Angat Dam at the height of
typhoon Welming.
(b) In case of a judgment or final order against a person, the
judgment or final order is presumptive evidence of a right as between CFI found NPC guilty of gross negligence and ruled NPC to pay the
the parties and their successors in interest by a subsequent title. damages. NPC filed a notice of appeal from the decision. Before NPC
could perfect its appeal, ECI moved for and was granted execution
In either case, the judgment or final order may be repelled by pending appeal upon posting a covering bond to fully answer for
evidence of a want of jurisdiction, want of notice to the party, whatever damages NPC might incur by reason of the premature
collusion, fraud, or clear mistake of law or fact. (50a) execution of the decision. Sheriff was assigned to enforce the writ of
Effect of foreign judgments or final orders execution, garnished in favor of ECI all amount due and payable to NPC
which were then in possession of MERALCO and sufficient to cover the
1. upon a specific thing conclusive upon the title to the thing; and judgment sum.
NPC filed a petition for certiorari with the CA after attempts to lift the plus lapse of appeal period of other parties), and power to issue orders
order of execution proved futile and the offer of a supersedeas bond was including execution pending appeal (before transmittal of records). The
rejected. CA set aside the orders of the CFI. court in Ong confused perfection of appeal with loss of jurisdiction.
HELD Damages other than actual may not be executed pending appeal.
Posting of a bond by itself is not ground to allow execution pending DIRECTOR OF LANDS V. REYES, 68 SCRA 177
appeal. (1975) OK
Execution pending appeal is not applicable in a land registration
ONG V. CA, 203 SCRA 38 (1991) OK proceeding. A decree shall be issued only after the decision adjudicating
the title becomes final and executory. Failure to serve notice of appeal to
Posting of a bond is not good reason for ordering execution pending a party is not fatal where such party was subsequently furnished with
appeal. To consider the mere posting of a bond a 'good reason' would copies of the record on appeal which included the notice of appeal.
make execution pending appeal routinary, the rule rather than the Furthermore, though a party did not receive a notice of appeal, the
exception. That appeal is frivolous and dilatory is not good reason either judgment does not become executory, where notice of appeal was
because it is not proper for the trial court to find that an appeal is served on other co-parties and the judgment is not severable as to the
frivolous. The power to deem an appeal as frivolous pertains to the parties.
appellate court. Good reason must constitute superior circumstances
demanding urgency which will outweigh the injury or damages should
the losing party secure a reversal of the judgment. ARANDA V. CA, 186 SCRA 456 (1990) OK
In cases where appeal is taken, the perfection of the appeal shall be upon When a judgment is executed pending appeal and subsequently
the expiration of the last day to appeal by any party. What determines overturned in the appellate court, the party who moved for immediate
perfection of the appeal is the expiration of the reglementary period for execution should be required to make specific restitution of such
appeal for all parties. The mere filing of appellant's notice of appeal does property of the prevailing party as he may have acquired at the execution
not divest the trial court of its jurisdiction. The court may still take sale. The appellate court need not specify in the judgment of reversal
cognizance of the other party's MfR, MNT, or a motion for execution that there should be restitution of the properties. Such restoration is
pending appeal, provided such motions are filed within 15 days from said expressly provided in the Rules in such situations and should apply in the
party's notice of the decision. absence of any contrary disposition in the final judgment of the appellate
court. If specific restitution becomes impracticable, the losing party in
de Leon: Dont be confused with Ongs reference to expiration of a period the execution becomes liable for the full value of the property at the time
to appeal as determinant of perfection of an appeal. Rule 42, Sec. 9 of its seizure, with interest.
clearly provides for distinctions as to when appeal is perfected (filing of
timely notice of appeal), court loses jurisdiction (perfection of an appeal
CANONIZADO V. BENITEZ, 127 SCRA 610 (1984) Hotel, it is undeniable that Gaa is occupying a position equivalent to that
of a managerial or supervisory position. Gaa is not a laborer, and neither
FACTS
is the money she receives from El Grande Hotel wages that are exempt
HELD A judgment for support is a continuing obligation which does not from execution.
become dormant by the mere lapse of the 5 year period from entry. A
de Leon: Note that Rule 39, Sec. 13 (i) exempts So much of the salaries,
judgment for support can always be executed by mere motion.
wages, or earnings of the judgment obligor of his personal services
within the four months preceding the levy as are necessary for the
GAA V. CA, 140 SCRA 304 (1985) OK support of his family. Hence, even salaries like Gaas are exempt for 4
months preceding the levy as far as necessary for the support of
Facts: Gaa was employed by El Grande Hotel. Her salary was garnished judgment obligors family. Beyond these 4 months or beyond those
pursuant to a final judgment. She argues that her salary is exempt from covering support of his family, salaries are no longer exempt. Wages, on
execution under Art. 1708 of the Civil Code which provides The laborer's the other hand, are always exempt, regardless of time and support
wage shall not be subject to execution or attachment, xxx . The motion required.
was denied.
Held: Article 1708 used the word "wages" and not "salary" in relation to
PENTAGON SECURITY V. JIMENEZ, 192 SCRA 492
"laborer" when it declared what are to be exempted from attachment
(1990) OK
and execution. The term "wages" applies to the compensation for
manual labor, skilled or unskilled, paid at stated times, and measured by Facts: Pentagon Security is a single proprietorship engaged in security
the day, week, month, or season. "Salary" denotes a higher degree of services. It was ordered by the NLRC to pay money representing wages
employment, or a superior grade of services, and implies a position of and COLA differentials due its employees. A notice of garnishment was
office. Wages" indicates considerable pay for a lower and less issued. Deputy Sheriff issued a Notice of Levy and Sale on Execution of
responsible character of employment, while "Salary" is suggestive of a the licensed firearms of Pentagon. Pentagon filed an urgent petition to
larger and more important service. quash Notice of Levy and Sale on Execution, claiming exemption from
execution under the group tools and implements necessarily used by
Labor only applies to one engaged in some form of manual or physical him in his trade or employment. This was denied.
labor. Gaa is definitely not within that class. It is beyond dispute that Gaa
is not an ordinary or rank and file laborer but "a responsibly place Held: The term "tools and implements" refers to instruments of
employee," of El Grande Hotel, "responsible for planning, directing, husbandry or manual labor needed by an artisan craftsman or laborer to
controlling, and coordinating the activities of all housekeeping obtain his living. Pentagon is a business enterprise. It does not use the
personnel" so as to ensure the cleanliness, maintenance and orderliness firearms personally, but they are used by its employees. Not being a
of all guest rooms, function rooms, public areas, and the surroundings of natural person, Pentagon cannot claim that the firearms are necessary
the hotel. Considering the importance of Gaas function in El Grande
for its livelihood. The exemption contemplated by the provision involved of the judgment debtor. He is not authorized to levy upon the property of
is personal, available only to a natural person. the 3rd-party claimant.
CASANOVA V. LACSAMANA, 90 SCRA 68 (1979) FILINVEST V. IAC, 207 SCRA 59 (1992)

Facts: Defendant was sought to be ejected even without hearing and Res judicata has two aspects. The first is the effect of a judgment as a bar
opportunity remove his improvements. to the prosecution of a second action upon the same claim, demand or
cause of action. The second aspect is that it precludes relitigation of a
Held: An order of demolition issued without hearing and without particular fact or issues in another action between the same parties on a
granting the judgment obligor a reasonable time within which to remove different claim or cause of action. (MEMORIZE!) Thus, a party by varying
the improvements he constructed on the property subject of execution is the form of action or method of case presentation cannot escape the
null and void. The officer called upon to enforce a final judgment effect of the principle of res judicata nor can a party avoid an estoppel of
involving delivery or restitution of property may do so by placing the a former judgment by bringing forward in a second action new or
judgment obligee in possession of such property but the official shall not additional grounds in support of his case or defense or new arguments to
destroy, demolish or remove the improvements made by the judgment sustain it, the facts remaining the same at least where such additional
obligor on the property except by special order of the court which may matter could have been pleaded and adjudicated in the prior action.
only issue upon petition of the judgment obligee, after due hearing, and
upon the failure of the judgment obligor to remove the improvements
within a reasonable time fixed by the court. Judgment obligors ANTICAMARA V. ONG, 82 SCRA 337 (1978)
improvements could not be removed pending judgment obligees
In order that there may be res judicata it is required (a) that the former
recourse to the court for a special order.
judgment must be final; (b) that is must have been rendered by a court of
competent jurisdiction; (c) that it must be a judgment on the merits, and
ARABAY V. SALVADOR, 82 SCRA 138 (1978) (d) that between that first and second actions, there should be identity of
parties, subject-matter and cause of action.
A 3rd party claiming the properties levied on execution can assert his
claim in a separate action. Where the court in such separate action The joining of new parties to a second action does not remove the case
enjoins the auction sale of properties levied on execution, such does not from the operation of the doctrines of res judicata if the party against
constitute interference with the processes of another court. When the whom judgment is offered in evidence was a party in the first action and
sheriff acting beyond the bounds of his authority, seizes a strangers had a community of interest with the new parties. The principle of res
property, the writ of injunction, which is issued to stop the auction sale of judicata does not require absolute identity, but only substantial identity
that property, is not an interference with the writ of execution issued by of parties, subject-matter and issues.
another court because the writ of execution was improperly
implemented by the sheriff. Under the writ, he could attach the property
PAL V. CA, 181 SCRA 557 (1990)
An alias writ of execution may be issued even without a prior return on
the original writ by the implementing officer (e.g. implementing sheriff
has absconded). So long as judgment is not satisfied, a judgment obligee
is entitiled to other writs of execution. Payment must be made to the
judgment obligee, or his authorized representative, in order to satisfy the
judgment. Ordinarily, the sheriff is an authorized representative of the
judgment obligee. However, if payment to the sheriff was by check, and
worse, in his own name, such payment is not considered in satisfaction of
the judgment.
de Leon: Under Rule 39, Sec. 9 (a) checks are acceptable only if the
judgment obligee or his authorized representative is present. In PAL,
payment by check was in the absence of the judgment obligee, and
hence not valid. In fact, the same provision provides In no case shall the
executing sheriff demand that any payment by check be made payable
to him.

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A civil action may either be ordinary or special.

Both are governed

(b) A criminal action is one by which the State prosecutes a person

ORDINARY CIVIL ACTIONS Memorize!

Special proceeding a remedy by which a party seeks to establish a

Special civil actions are called so because special rules govern.

6. other cases not herein provided for

Sec. 5. Commencement of action. A civil action is commenced by CASES

Sec. 2. Cause of action, defined. A cause of action is the act or

Elements of cause of action:

Sec. 4. Spouses as parties. Husband and wife shall sue or be

Unlicensed foreign corporations not engaged in business may sue in the

CASES FORTUNE MOTORS V. CA, 178 SCRA 564 (1989)

HELD: An action praying that defendant be ordered "to accept the

Section 1. Uniform procedure. The procedure in the Municipal B. Criminal Cases:

b. rental law violations CIVIL CASES

a. terms of any amicable settlement Allowable pleadings (must all be verified)

b. stipulations or admissions entered into by the parties 1. complaint

CRIMINAL CASES 9. Preliminary conference

Held: Summary procedure is applicable for offenses punishable by not RULE 6

Sec. 5. Defenses. Defenses may either be negative or 6. statute of frauds

1. arises out of or is connected with the transaction or occurrence

Sec. 12. Bringing new parties. When the presence of parties

JABALDE V. PNB, 7 SCRA 791 (1963)

Presentation of evidence by the offeror of the actionable document

GARCIA V. MATHIS, 100 SCRA 251 (1980)

GABUYA V. LAYUG, 250 SCRA 218 (1995)

PACETE V. CARRIAGA, 231 SCRA 321 (1994) RULE 10

RAMNANI V. CA, 221 SCRA (1993) b. name of any party

5. supplemental complaint within 10 days from notice of the

Sec. 8. Existing counterclaim or cross-claim. A compulsory CASES

Sec. 5. Stay of period to file responsive pleading. After service of

Procedure in bill of particulars

Held: We find no merit in the appeal. The complaint is without doubt

Sec. 4. Papers required to be filed and served. Every judgment,

b) in a sealed envelope Sec. 8. Substituted service. If service of pleadings, motions,

1. service can not be made personally or by mail Proof of service of papers

3. deliver a copy to the clerk of court a. either

4. Substituted service c. description of the property affected

b. it is not necessary to protect the rights of the party who caused it

BENECO received COA Audit Report on the financial status and

SOLAR TEAM ENTERTAINMENT V. RICAFORTE,

1) Personal service (Rule 14, Sec. 6) Priority in modes of service of summons

2) Substituted service (Rule 14, Sec. 7)

3) belongs to the defendant and has been attached

Sec. 4. Hearing of motion. Except for motions which the court

cf Rule 6, Sec. 1 Sec. 5. Notice of hearing. The notice of hearing shall be

Atty. Augusto A. Pardalias

Grounds to dismiss that the court may invoke motu proprio

Procedure in dismissing upon notice by claimant

DISMISSAL OF ACTIONS a) responsive pleading, or

RULE 17 b) motion for summary judgment

2. court dismisses the complaint motu proprio, or upon the defendants

1. notice without prejudice CASENAS V. ROSALES, 19 SCRA 462 (1967)

RULE 18 In civil cases, pre-trial is now mandatory.

Procedure in civil pre-trial 8. The proceedings in the pre-trial shall be recorded.

1. plaintiff moves that the case be set for pre-trial

b. the action taken thereon CASES

DISTINCTION BETWEEN PRE-TRIALS IN CIVIL AND CRIMINAL CASES

a. in the matter in litigation

Requisites for intervention

Sec. 4. Answer to complaint-in-intervention. The answer to the

NUAL V. CA, 221 SCRA 26 (1993)