You are on page 1of 142

LECTURE NOTES ON CIVIL PROCEDURE

Revised October 2009

WHAT IS CIVIL PROCEDURE

1. It is the procedure governing the filing, processing and adjudication of civil actions. It essentially is the lawyers
law that defines the rules of the game that lawyers and judges play.

2. It is considered as procedural law as it prescribes the method of enforcing rights and obtaining redress for their
invasion, as opposed to substantive law which creates, defines, and regulates rights and duties that give rise to a cause of
action.

2.1 The rules of procedure promulgated by authority of law bear the force and effect of law. 1

3. It is embraced in Rules 1 to 71 of the Rules of Court and after its revision, is now commonly known as the 1997
Rules of Civil Procedure. It is divided into the following topics: General Provisions (Rule 1), Ordinary Civil Actions (Rules
2-5), Procedure in Regional Trial Courts (Rules 6-39), Appeals (Rules 40-43), Procedure in the Court of Appeals and
Supreme Court (Rule 44- 56), Provisional Remedies (Rules 57-61), and Special Civil Actions (Rules 62-71).

4. Included within its scope are the 1991 Rules on Summary Procedure, Local Government Code provisions on the
Katarungang Pambarangay and related issuances of the Supreme Court.

PRELIMINARIES

1. Any discussion of procedural rules should always be preceded by a discussion of jurisdiction as its presence is
what gives rise to the application of the rules for the purpose of resolving the action that is brought before a court. Simply
defined it refers to the power and authority of a court or tribunal to hear, try and decide a case . It has also been defined as
the authority by which courts and judicial officers take cognizance of and decide cases.

1.1 Absent jurisdiction, the only thing a court can do as provided by the rules is to dismiss the action.

1.2 If a court acts without jurisdiction, all its acts are null and void. Further, any decision it may render is not a
decision in contemplation of law and cannot be executory. 2

1.3 The validity of a judgment or order of a court or quasi-judicial tribunal which has become final and executory may
be attacked when the records show that it lacked jurisdiction to render the judgment-a void judgment may be assailed or
impugned at any time either directly or collaterally by means of a petition filed in the same or separate case, or by
resisting such judgment in any action or proceeding wherein it is invoked. In fact, even the testimony in a case where the
proceedings had been nullified for lack of jurisdiction is inadmissible as evidence. 3

2. The absence of jurisdiction as a general rule may be questioned at any stage of the proceedings, even on appeal.

2.1 However, a party may be barred from raising it on the ground of laches or estoppel when he has actually invoked
the jurisdiction of the court by participating in the proceedings, then belatedly questions lack of jurisdiction after judgment
has gone against him. Participation in all stages before the trial court which included invoking its authority in asking for
affirmative relief, effectively bars the party by estoppel from challenging the courts jurisdiction. 4

2.2 The court actually does not have jurisdiction, but the law for reasons of equity, steps in to gag the negligent party
and prevents him from raising its voice about lack of jurisdiction. It does so not because the Court has acquired
jurisdiction but because of fault or negligence of a party now estops him from raising the question of lack of jurisdiction. 5

2.3 Note likewise the rules covering actions for annulment of judgment based on extrinsic fraud or lack of
jurisdiction. If based on the latter, it can only be initiated before it is barred by laches or estoppel. 6

1
Conlu v. Court of Appeals, 106 Phil 940
2
Abbain vs. Chua, 22 SCRA 748, Estoesta vs. Court of Appeals, 179 SCRA 203, Dava vs. People, 202 SCRA 62
3
Dynamic Signmaker Outdoor Advertising Services, Inc. vs. Potongan, 461 SCRA 328
4
Heirs of the late Panfilo V. Pajarillo v. Court of Appeals, 537 SCRA 96
5
Tijam v. Sibonghanoy, 23 SCRA 29, Soliven v. FastForms, Phil. Inc., 440 SCRA 389
6
Sections, 2 and 3, Rule 49, 1997 Rules of Civil Procedure
2.4 It is incumbent upon the petitioner to file a motion to dismiss at the earliest opportune time to raise the issue of the
courts lack of jurisdiction. Its failure to seasonably raise the question of jurisdiction leads to the inevitable conclusion that
it is now barred by laches.7

REQUISITES FOR A VALID EXERCISE OF JURISDICTION

1. It must have jurisdiction over the persons of the parties. It is acquired over the plaintiff upon his filing of a
complaint.

1.1 On the other hand, it is acquired over the defendant by his voluntary appearance before the court or the
employment of the coercive power of legal process.

2. It must also have jurisdiction over the subject matter in controversy. Jurisdiction over the subject matter of the
complaint is to be determined by the allegations in the complaint and the law in force at the time of the commencement of
the action. This is the power of a court to hear and determine cases of a general class to which the proceedings in
question belong.8

2.1 Determined by allegations in the complaint. Jurisdiction must be determined at the commencement of the action.
Since an action is commenced by the filing of a complaint, it is also the means by which the plaintiff invokes the
jurisdiction of the court. Hence, it is from it that a determination of the existence of jurisdiction is had.

2.2 The determination is to be confined solely to the four corners of the complaint. Specifically, what characterizes an
action is not the caption of the pleading, which is just a legal conclusion on the part of the pleader, but the allegations in
the body of the complaint.9

2.3 In case of conflict between the allegations and the reliefs, the allegations in the body shall prevail. The prayer is a
conclusion of the pleader as to the proper reliefs that he would be entitled to on the basis of the pleaded cause of action.
The Court is not bound as it may grant a relief, lesser or greater in amount, or totally different from that prayed for. 10

2.4 Even if the plaintiff alleges an amount that puts the case within the jurisdiction of the RTC, the courts jurisdiction
is not affected if it later finds that the plaintiff is entitled to an amount within the jurisdiction of an MTC. 11 Conversely, if a
court has no jurisdiction, the defect will not be cured by a finding during the trial that the amount actually due is within the
jurisdiction of the court.12

2.5 Neither can it be determined from the allegations in the answer of the defendant. If the rule were otherwise, no
action can prosper as all the defendant has to do is to allege that the jurisdiction is vested in another court.

2.6 The only recognized exception is the defense of agricultural tenancy. 13 The court in this case must conduct a
preliminary hearing on the defense to determine if there is indeed a tenancy relationship, as its existence shall mean that
the court has no jurisdiction as the same is vested exclusively with the DARAB. 14

2.7 Determined by the law in force at the time of the commencement of the action. Jurisdiction as used in the
Constitution and statutes means jurisdiction over the subject matter 15 unless qualified to mean another kind of jurisdiction.
This jurisdiction refers to the jurisdiction of a court over a general class of cases or the power to try and decide the class
of litigation to which the particular case belongs. 16 Jurisdiction is conferred by law, where there is none, no agreement of
the parties can provide one.17

7
United Overseas Bank v. Ros, 529 SCRA 334
8
Heirs of Valeriano S. Concha, Sr. v. Lumocso, 540 SCRA 1
9
De Jesus v. Bristol Laboratories, 55 SCRA 349, Solid Homes v. Court of Appeals, 271 SCRA 157
10
Bulao v. Court of Appeals, 218 SCRA 321
11
Ratilla v. Tapucar, 75 SCRA 64
12
Mercado v. Ubay, 187 SCRA 719
13
Section 3, Rule 70, 1997 Rules of Civil Procedure
14
Concepcion v. CFI of Bulacan, 119 SCRA 222
15
Reyes v. Diaz, 73 Phil 484
16
Caluag v. Pecson, 82 Phil 8
17
Department of Health v. NLRC, 251 SCRA 700
2.8 Example: If an action for payment of a sum of money is filed after the effectivity of RA 7961 on April 15, 1994,
expanding the jurisdiction of the MTC and implemented by Adm. Circular 9-94 18 interest, damages of whatever kind- as
long as incidental, attorneys fees, litigation expenses and costs (DIAL-C) are not to be considered in fixing the
jurisdictional amount, but must be specifically alleged and filing fees paid thereon. Hence, in an action for the payment of
a sum of money previous to the said date, a determination of jurisdiction would have to include the amounts claimed by
way of DIAL-C. Another is Section 5.2, RA 8799 19 that vests jurisdiction over intra-corporate disputes in the RTC that sits
as a commercial court.

2.9 When a court has already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to
the final determination of the cause is not affected by new legislation placing jurisdiction over such proceedings in another
tribunal unless the statute expressly provides, or is construed to the effect that it is intended to operate on actions pending
before its enactment.20

3. Jurisdiction over the res assumes importance only in those actions where the court cannot acquire jurisdiction
over the person of the defendant because he is not a resident and cannot be found here or served with summons.

3.1 These are quasi in rem actions. 21 The action is directed against a defendant personally, although its object is to
subject his interest in the property to the obligation or the lien. 22

PROBLEM AREAS AFFECTING JURISDICTION

1. Actions which are incapable of pecuniary estimation

1.1 Generally, it is one where the basic issue is something other than the right to recover money, where the money
claim is incidental to or is a consequence of the principal relief being sought.

1.2 It is a claim, the subject of which cannot be estimated in terms of money.

1.3 Examples: Action for specific performance although damages are being sought but if damages are part of an
alternative prayer, jurisdiction should be based on the amount. Other examples: Action for appointment of receivers,
expropriation, interpleader, support, and rescission.

1.4 In determining which court has jurisdiction, the applicable test is the Nature of the Action Test which involves a
determination as to whether or not the action is capable of pecuniary estimation. If not capable, jurisdiction is with the
RTC. If capable-jurisdiction is determined by the amount claimed/value of the real or personal property but this test must
yield to the Primary or Ultimate Objective Test where notwithstanding the fact that the action appears to be incapable of
pecuniary estimation, if the primary objective is to recover real property, jurisdiction will be determined by the assessed
value of the real property.

1.5 Examples: An action for specific performance with a prayer for the issuance of a deed of sale over a parcel of land
is a real action as the object is the recovery of the land itself 23 or an action to quiet title in which both parties are claiming
ownership of the subject parcels of land is also a real action. 24 Hence, they cannot be considered as being incapable of
pecuniary estimation.

2. DETERMINATION OF AMOUNTS OF THE CLAIM TO DETERMINE JURISDICTION AND PAYMENT OF


DOCKET FEES.

18
June 14, 1994
19
Securities Regulation Code of 2000
20
Palana v. People, 534 SCRA 296
21
Perkins v. Dizon, 69 Phil 186
22
Biaco v. PCRB, 515 SCRA 106
23
Gochan v. Gochan, 372 SCRA 256
24
Ferrer v. Lucas, CA G.R. No. SP 52294, July 9, 1999
2.1 Filing and docketing of the complaint are not separate but are complementary. It is not simply the filing of the
complaint or appropriate initiatory pleading, but the payment of the prescribed docket fee that vests a trial court with
jurisdiction over the subject matter or nature of the action. 25

2.2 The problem arises as filing is not synonymous with docketing as the complaint may be filed but not necessarily
docketed if the appropriate fees are not paid.

2.3 The purpose of docket fees is to take care of court expenses in the handling of cases in terms of costs of
supplies, use of equipment, salaries and benefits.26

2.4 Examples in determining appropriate docket fees: (a) Foreclosure of chattel to collect PHP 100,000.00 but
actual value of chattel is PHP 500,000.00, the docket fee is based on what is sought to be collected and jurisdiction is
determined by the amount claimed by the plaintiff (b) An action to collect a sum of money that is within jurisdiction of the
MTC but with accessory prayer for damages beyond MTC jurisdiction, the damages, interest, attorneys fees, litigationg
expenses are to be excluded in determining jurisdiction but docket fees are still to be collected 27 but if action is for
damages over 400K jurisdiction is with the RTC because it is the main cause of action or one of the causes of action.

2.5 If the docket fees are incorrect- the trial court should allow the plaintiff to pay within a reasonable period of time
before the expiration of the applicable prescriptive or reglamentary period otherwise the defendant must move to dismiss
the complaint on the ground of lack of jurisdiction, if he does not, he may be considered to be in estoppel. 28

2.6 The court had jurisdiction over the amended complaint as it had acquired jurisdiction over the case when the
original complaint was filed and the corresponding docket fee was paid thereon. While the payment of the prescribed
docket fee is a jurisdictional requirement, even its nonpayment at the time of filing does not automatically cause the
dismissal of the case, as long as the fee is paid within the applicable prescriptive or reglementary period. 29

2.7 When the docket fees for the main action are paid but those for related damages alleged but not specified are not
paid, the court is not prevented from proceeding with the complaint, the trial court may expunge the claims or allow on
motion, a reasonable time for amendment of the complaint or accept payment of the requisite legal fees. 30

2.8 In a complaint for recovery of possession of real property which did not allege the assessed value thereof, the trial
court commits a serious error in denying a motion to dismiss on the ground of lack of jurisdiction. All proceedings in said
court are null and void.31

2.9 If the claims are not specified and subsequently arise or there is an insufficiency in the payment of docket fees,
the required additional fee shall constitute a lien on the judgment and the clerk of court must enforce and collect the
difference in docket fees from the judgment that may be rendered by the court in the case, awarding a claim no specified
in the pleading or if specified is left to its determination. 32

DISTINCTIONS BETWEEN THE NATURE OF JURISDICTION EXERCISED BY THE COURTS

1. AS TO THE NATURE OF THE EXERCISE OF JURISDICTION OR KIND OF CASES THAT ARE TRIED it is
General, meaning it is exercised over all kinds of cases or Limited, meaning it exercised over and extends only to a
particular or specified cases

2. AS TO THE NATURE OF THE CAUSE OR THE ACTION it is Criminal when the object of the action is to impose
punishment for a crime or Civil, if otherwise.
25
Proton Pilipinas Corporation v. Banque Nationale de Paris, 460 SCRA 260.
26
Serrano v. Delica, 465 SCRA 82
27
A.M. 09-94, June 14, 1994
28
NSC v. Court of Appeals, G.R. 123215, February 2, 1999
29
Pagcor v. Lopez, 474 SCRA 76, Polido v. Court of Appeals, 527 SCRA 248
30
Tacay v RTC of Tagum, Davao del Sur, 180 SCRA 433
31
Quinagoran vs. CA, GR No. 155179, August 24, 2007
32
Pascual v. Court of Appeals, 300 SCRAPascual v. Court of Appeals, 300 SCRA 214
3. AS TO THE TIMING OF ITS EXERCISE- it is Original, meaning it is exercised by courts in the first instance or
Appellate, meaning it is exercised by a superior court to review and decide a cause or action previously decided by a
lower court.

4. AS TO THE EXTENT OF THE EXERCISE OF JURISIDICTION it is Exclusive, meaning it is confined to a


particular court or Concurrent, meaning two or more courts have jurisdiction at the same time and place.

4.1 In this instance, the court which has first validly acquired jurisdiction takes it to the exclusion of the others. This is
also known as the Exclusionary Principle. This is taken together with the Doctrine of Judicial Stability of Non-Interference
which holds that court of co-equal or coordinate jurisdiction shall have no authority to pass upon or scrutinize the exercise
by another court of its jurisdiction.

4.2 Note though the Doctrine of Hierarchy of Courts which requires litigants to initially seek proper relief from the
lower courts in those cases where the Supreme Court has concurrent jurisdiction with the Court of Appeals and the
Regional Trial Court to issue the extraordinary writs of certiorari, prohibition or mandamus. The Supreme Court is a court
of last resort and its jurisdiction to issue extra-ordinary writs should be exercised only when absolutely necessary, or
where serious and important reasons therefor exist. 33 Neither does concurrence of jurisdiction grant any party seeking
any of the extra-ordinary writs the absolute freedom to file the petition with the court of his choice. 34

5. AS TO SITUS it is Territorial, meaning it is exercised within the limits of the place where the court is located or
Extra-Territorial meaning it is exercised beyond the confines of the territory where the court is located.

WHAT HAPPENS WHEN JURISDICTION IS ACQUIRED

Jurisdiction once acquired continues until the case is terminated. It is not affected by subsequent legislation placing
jurisdiction in another tribunal.35 The exceptions are: when the law expressly provides for retroactivity, 36 when the change
in jurisdiction is curative in nature, or when there is a perfected appeal. This is also known as the Doctrine of Adherence
to Jurisdiction.

DOCTRINE OF PRIMARY JURISDICTION

1. That which vests in an administrative tribunal the jurisdiction to determine a controversy requiring the exercise of
sound administrative discretion stated otherwise if jurisdiction is vested upon an administrative body, no resort to
courts can be made until the administrative body shall have acted on the matter.

2. In exercising its primary jurisdiction, a court has the inherent jurisdiction to determine issues incidental to its
exercise. This is known as the Doctrine of Ancillary Jurisdiction.

LEVELS OF SUBJECT MATTER JURISDICTION

1. JURISDICTION OF THE SUPREME COURT

The jurisdiction of the Supreme Court in civil cases of which it cannot be deprived and which cannot be
diminished by Congress is to review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of
Court may provide, final judgments and orders of lower courts in: (a) all cases in which the constitutionality or validity of
any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question; (b) all cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed
in relation thereto; (c) all cases in which the jurisdiction of any lower court is in issue; and (d) all cases in which only an
error or question of law is involved.

The foregoing Constitutional definition is of appellate jurisdiction. Congress, however, is not prohibited from
increasing or adding to this Constitutionally-defined jurisdiction. And so Congress has given the Supreme Court original
33
Pearson v. IAC, 295 SCRA 27
34
Ouano vs. PGTT International Investment Corporation, 384 SCRA 587
35
Mercado v. Ubay, 187 SCRA 719
36
Latchme Motoomull v. Dela Paz, 187 SCRA 743
jurisdiction over cases affecting ambassadors, other public ministers, and consuls and petitions for the issuance of writs of
certiorari, prohibition and mandamus against the Court of Appeals. Congress has also vested the Supreme Court with
jurisdiction, concurrent with the RTCs, over petitions for the issuance of the writs of certiorari, prohibition, habeas corpus,
and in actions brought to prevent and restrain violations of law concerning monopolies and combinations in restraint of
trade.

The appellate jurisdiction in civil cases of the Supreme Court as defined in the Constitution had been revised and
expanded a little bit more by law to include all cases involving petitions for naturalization or denaturalization, all decisions
of the Auditor General, if the appellant is a private person or entity, and final judgments or orders of the Commission on
Elections.

2. JURISDICTION OF THE COURT OF APPEALS

The Court of Appeals has both original and appellate jurisdiction. Its original jurisdiction, which is exclusive, is over
actions for annulment of RTC judgments. Its original jurisdiction, which is concurrent with the Supreme Court and the
RTCs, is to issue writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs or
processes, whether or not in aid of its appellate jurisdiction.

The appellate jurisdiction of the Court of Appeals, which is exclusive, is over final judgments or resolutions of
RTCs and quasi-judicial agencies, such as the Securities and Exchange Commission, Sandiganbayan and the National
Labor Relations Commission.

3. JURISDICTION OF REGIONAL TRIAL COURTS

The RTCs are our second-level trial courts. As the Supreme Court and the Court of Appeals, RTCs have both
original and appellate jurisdiction in civil cases.

Their original jurisdiction is concurrent with the Supreme Court and the Court of Appeals in the issuance of writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunctions but, as issued by RTCs, these writs may
be enforced only within their respective regions, and over actions affecting ambassadors and other public ministers and
consuls. The original jurisdiction of RTCs, which is exclusive, is broad and covers the following cases: (1) all civil actions
in which the subject of the litigation is incapable of pecuniary estimation; (2) all civil actions which involve the title to, or
possession of, real property, or any interest therein, where the assessed value of the property involved exceeds Two
hundred thousand pesos (P200,000.00) or for civil actions in Metro Manila, where such value exceeds Four hundred
thousand pesos (P400,000.00) except actions for forcible entry into and unlawful detainer of lands or buildings, original
jurisdiction over which is conferred upon the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial
Courts; (3) all actions in admiralty and maritime jurisdiction where the demand or claim exceeds Two hundred thousand
pesos (P200,000.00) or in Metro Manila, where such demand or claim exceeds Four hundred thousand pesos
(P400,000.00); (4) all matters of probate, both testate and intestate, where the gross value of the estate exceeds Two
hundred thousand pesos (P200,000.00) or, in probate, both testate and intestate, where the gross value of the estate
exceeds Two hundred thousand pesos (P200,000.00) or, in probate matters in Metro Manila, where such gross value
exceeds Four hundred thousand pesos (P400,000.00); (5) all actions involving the contact of marriage and marital
relations; (6) all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction of
any court, tribunal, person or body exercising judicial or quasi-judicial functions; (7) all civil actions and special
proceedings falling within the exclusive jurisdiction of a Juvenile and Domestic Relations Court and of the Court of
Agrarian Relations as then provided by law; and (8) all other cases in which the demand, exclusive of interest, damages
of whatever kind, attorneys fees, litigation expenses, and costs or the value of the property in controversy exceeds Two
hundred thousand pesos (P200,000.00) or, in such other cases in Metro Manila, where the demand, exclusive of the
above-mentioned items exceeds For hundred thousand pesos (P400,000.00).

The appellate jurisdiction of the RTCs is over all cases decided by Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts in their respective territorial jurisdiction.

The term damages of whatever kind has been specially defined by the Supreme Court for purposes of
determining the jurisdictional amount in respect to the jurisdiction of the RTC. This term is understood to apply only to
cases when the damages are merely incidental to or a consequence of the main cause of action, and that therefore where
the claim for damages is the main cause of action or one of the causes of action, the amount of the claim shall be
considered in determining the jurisdiction of the court.

The Supreme Court has however designated certain branches of the RTCs to handle exclusively certain cases as
corporate and intellectual property cases.
4. JURISDICTION OF METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT
TRIAL COURTS

The MTCs are the first-level trial courts in this country. They have therefore no appellate jurisdiction and all their
jurisdiction is exclusive and encompasses the following cases: (1) all civil actions and probate proceedings, testate and
intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or
amount of the demand does not exceed two hundred thousand pesos (P200,000.00) or, in Metro Manila where such
personal property, estate, or amount of the demand does not exceed Four hundred thousand pesos (P400,000.00),
exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses, and costs, the amount of which must
be specifically alleged: Provided, That where there are several claims or causes of actions between the same or different
parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of
action irrespective of whether the causes of action arose out of the same or different transactions; (2) cases of forcible
entry and unlawful detainer: Provided, That when, in such cases, the defendant raises the question of ownership in his
pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of
ownership shall be resolved only to determine the issue of possession; and (3) all civil actions which involve title to, or
possession of, real property or any interest therein where the assessed value of the property or interest therein does not
exceed Two hundred thousand pesos (P200,000.00) or, in civil actions in Metro Manila, where such assessed value does
not exceed Four hundred thousand pesos (P400,000.00) exclusive of interest, damages of whatever kind, attorneys fees,
litigation expenses and costs.

The MTCs may however be assigned by the Supreme Court to hear and determine certain cadastral cases and
petitions for habeas corpus.

RULE I GENERAL PROVISIONS

1. The Rules shall be known and cited as the Rules of Court. 37

2. They apply in all courts, except as otherwise provided by the Supreme Court 38 in civil, criminal and special
proceedings.39

2.1 For purposes of the subject matter, only Rules 1 to 71 or the 1997 Rules of Civil Procedure shall be discussed
herein.

2.2 A Civil Action is one by which a party sues another for the enforcement or protection of a right or the prevention or
redress of a wrong. Examples: To enforce payment of a loan or to eject an intruder on ones property.

2.3 Civil Actions may be considered as:

(a) Ordinary or Special, while both are governed by the rules for ordinary civil actions, there are specific rules
prescribed for a special civil action.

(b) In Personam, which is an action brought against a person based on personal liability to the person bringing the
action. The purpose of the action is to impose through the judgment of a court, some responsibility or liability directly upon
the person of the defendant.40 In this kind of action, no one other than the defendant is held liable, not the whole world.

(c) In Rem, is an action that is directed against the thing itself rather than the person, It is directed against the thing,
property or status of a person and seeks judgments with respect thereto against the whole world. 41 An example would be
an action for registration of land as the judgment thereon is binding upon the whole world.

(d) Quasi in Rem, is an action that names a person as a defendant but its object is to subject the persons interest in
property to a corresponding lien or obligation. 42 It deals with the status, ownership or liability of a particular property but
37
Section 1, Rule 1, 1997 Rules of Civil Procedure
38
Supra, Section 2, Rule 1
39
Supra, Section 3, Rule 1
40
Domagas v. Jensen, 448 SCRA 663
41
Ching v Court of Appeals, 181 SCRA 9
42
Ramos v. Ramos, 399 SCRA 43
which are intended to operate on these questions only as between the particular parties to the proceedings and do not cut
off the rights and interests of all possible claimants. Examples are actions for partition, attachment or foreclosure of
mortgages.

2.4 Note the distinctions between actions in personam, on one hand, and actions in rem or quasi in rem on the other,
is essential as far as jurisdiction. In an action in personam, jurisdiction over the person of the defendant is necessary for
the court to validly try and decide the case. In a proceeding in rem or quasi in rem, jurisdiction over the person of the
defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res.
Jurisdiction over the res is acquired either (1) by the seizure of the property under legal process, whereby it is brought into
actual custody of the law; or (2) as a result of the institution of legal proceedings, in which the power of the court is
recognized and made effective.43

3. Civil Actions can also be distinguished as:

3.1 Real Actions are those which affect title to, or possession of real property or any interest therein. 44 All others are
personal actions.45

3.2 In a real action, it is founded upon the privity of real estate. That means that realty or any interest therein is the
subject matter of the action. What is essential is that as far as the real property is concerned, the issues are title to,
ownership, possession, partition, foreclosure of mortgage or condemnation. Hence, an action for damages suffered by
real property is a personal action as it does not involve any of the listed issues.

3.3 An action to annul a contract of loan and its accessory real estate mortgage is a personal action. In a personal
action, the plaintiff seeks recovery of personal property, the enforcement of a contract or recovery of damages. A real
action is an action affecting title to real property or for recovery of possession, or for partition or condemnation of, or
foreclosure of mortgage on real property. The rule on real actions only mentions an action for foreclosure of real estate
mortgage; it does not include an action for cancellation or annulment of a real estate mortgage. 46

3.4 The distinction between a real action and a personal action is important for the purpose of determining the venue
of the action.

3.5 An action in personam is not necessarily a personal action. Nor is a real action necessarily an action in rem. An
in personam or an in rem action is a classification of actions according to the object of the action. A personal and real
action is a classification according to foundation. It is in rem when directed against the whole world. For instance, an
action to recover, title or possession of real property is a real action, but it is an action in personam. It is not brought
against the whole world but against the person upon whom the claim is made. 47

4. Distinguishing civil actions from other kinds of actions:

4.1 Criminal Action is one by which the state prosecutes a person for an act or omission punishable by law.

4.2 A Special Proceeding is a remedy by which a party seeks to establish a status, right or a particular fact. In
addition, a civil action is adversarial, while a special proceeding may not be so as it may involve only 1 party. The object of
a civil action is the formal demand of a right by one against the other, while in a special proceeding, it is the declaration of
a status, right or a particular fact.

5. They do not apply to election cases, land registration, cadastral, naturalization and insolvency, and other cases
not herein provided, except by analogy or in suppletory character and whenever practicable and convenient. 48

6. The rules have retroactive application in the sense that they shall be held to apply to actions pending or
undetermined at the time of their effectuality.49

43
Biaco v. Philippine Countryside Rural Bank, GR No. 161417, February 8, 2007
44
Supra, Section 1, Rule 4
45
Supra, Section 2, Rule 4
46
Chua vs. Total Office Products and Services, Inc., 471 SCRA 500
47
Republic v Court of Appeals, 315 SCRA 600
48
Supra,,Section 4, Rule 1
49
Nypes v. Court of Appeals, 478 SCRA 115
6.1 The exceptions to retroactive application are: (a) the statute itself or by implication provides that pending actions
are excepted (b) it will impair vested rights (c) to the mind of the court, it will work injustice (d) it would involve intricate
problems of due process or impair the courts independence

WHEN AN ACTION IS COMMENCED

1. An action is commenced upon the filing of the original complaint in court. Filing refers to the act of presenting the
complaint to the clerk of court and the payment of the requisite docket and filing fees. Filing is deemed done only upon
payment regardless of the actual date of the filing. 50

1.1 An exception is when the plaintiff is authorized to litigate as a pauper litigant as he is exempt from the payment of
filing fees.

2. If an additional defendant is impleaded in a later pleading, it is commenced as far as the additional defendant on
the date of the filing of the later pleading, irrespective of whether the motion for its admission, if necessary is denied by
the court.51

3. Note that the commencement of the action interrupts the period of prescription as to the parties to the action. 52

HOW SHOULD THE RULES BE CONSTRUED

1. The rules shall be construed liberally in order to promote their objective of securing a just speedy and inexpensive
disposition of every action or proceeding.53

1.1 Liberal construction is the controlling principle to effect substantial justice. Litigation should as much as possible,
be decided on their merits, and not on technicalities.

1.2 Rules must not be applied to rigidly so as not to override substantial justice. 54 Rules of procedure must be used to
facilitate not to frustrate the ends of justice.55

1.3 It does not mean, however, that procedural rules are to be ignored or disdained at will to suit the convenience of a
party.56

2. Liberal construction of the rules should be made by the courts in cases: (a) a rigid application will result in
manifest failure or miscarriage of justice, especially if a party successfully shows that the alleged defect in the questioned
final and executory judgment is not apparent on its face or from the recitals contained therein (b) where the interest of
substantial justice will be served (c) where the resolution of the motion is addressed solely to the sound and judicious
discretion of the court (d) where justice to the adverse party is not commensurate with the degree of this thoughtlessness
in not complying with the procedure prescribed.57

3. A party litigant should be given the fullest opportunity to establish the merits of his complaint or his defense. He
ought not to lose life, liberty or honor or property on technicalities.

3.1 Rules of procedure should be viewed as mere tools designed to facilitate the attainment of justice. An example is
the matter of the attachment of copies to petitions58 or failure to indicate material dates in the petition. 59

4. Note that in doing so, substantial justice and equity considerations must not be sacrificed.

4.1 Periods for filing are as a matter of practice, strictly construed.


50
Magaspi v. Ramolete, 115 SCRA 193
51
Supra, Section 5, Rule 1
52
Cabrera v Tiano,8 SCRA 542
53
Supra,Section 6, Rule 1
54
De La Cruz v. Court of Appeals, GR No. 139442, December 6, 2006
55
Canton v City of Cebu, GR No. 152898, February 12, 2007
56
Vda De Toledo v Toleda, 417 SCRA 260
57
Seapower Shipping Enterprises, Inc. v CA, 360 SCRA 173, Tan v CA, 295 SCRA 755
58
Alberto v Court of Appeals, 334 SCRA 756
59
Fulgencio v NLRC, 411 SCRA 69
4.2 Neither can liberality of the rules be invoked if it will result in the wanton disregard of the rules or cause needless
delay in the administration of justice.60

5. Concommitant to a liberal application of the rules of procedure should be an effort on the part of the party invoking
liberality to adequately explain his failure to abide by the rules. 61

6. The rules and procedure laid down for the trial court and the adjudication of cases are matters of public policy.

6.1 They are matters of public order or interest which can in no wise be changed or regulated by agreements between
or stipulations by parties to an action for their singular convenience. 62

6.2 They are required to be followed except only for the most persuasive of reasons as when transcendental matters
of life, liberty or state security is involved. Litigation is not a game of technicalities. It is equally true, however, that every
case must be presented in accordance with the prescribed procedure to ensure an orderly and speedy administration of
justice.63

7. The Supreme Court has the power to suspend or set aside its rules in the higher interest of justice. 64 Specifically,
the reasons that will warrant the suspension are: (a) the existence of special or compelling reasons (b) the merits of the
case (c) a cause not entirely attributable to the fault or negligence of the party favored by the suspension (d) a lack of
showing that the review is frivolous or dilatory, and (e) the other party will not be prejudiced thereby. 65

RULE 2CAUSE OF ACTION

CAUSE OF ACTION DEFINED

1. The basis of an ordinary civil action is a cause of action. 66

2. A cause of action is the act or omission by which a party violates a right of another. 67

THE REQUISITES OF A CAUSE OF ACTION

1. The requisites for a cause of action are: (a) a right in favor of the plaintiff by whatever means and under whatever
law it arises or is created (b) an obligation on the part of the defendant to respect and not to violate such right (c) an act or
omission on the part of the defendant constituting a violation of the plaintiffs right. 68

DISTINGUISHING IT FROM AN ACTION AND A RIGHT OF ACTION

1. An action is the suit filed in court for the enforcement or protection of a right, or the prevention or redress of a
wrong, while a cause of action is the basis for the filing of the action.

2. The right of action is the right to commence and maintain an action, it is a remedial right that depends on
substantive law, while a cause of action is a formal statement of the operative facts that give rise to such remedial
right which is a matter of statement and is governed by procedural law. The right of action which is procedural in character
is the consequence of the violation of the right of the plaintiff. Hence, there is no right of action where there is no cause of
action.

2.1 The distinction is best used to explain the principle that the existence of a cause of action may only be
ascertained from the allegations of the complaint.69

60
El Reyno Homes v Ong, 397 SCRA 563
61
Sebastian v Hon. Morales, 397 SCRA 549, Duremdes v Duremdes, 415 SCRA 684
62
Republic v Hernandez, 253 SCRA 509
63
Mindanao Savings Loan Association v. De Flores, 469 SCRA 416
64
Fortica v Corona, GR No. 131457, April 24, 1998
65
Sarmiento v. Zaratan, GR No. 167471, February 5, 2007
66
Supra, Section 1, Rule 2
67
Supra, Section 2, Rule 2, PNOC v. Court of Appeals, GR No. 165433, February 6, 2007
68
Navao v CA, 251 SCRA 545
69
Equitable Bank v CA, 425 SCRA 544
HOW MANY SUITS CAN BE FILED FOR A CAUSE OF ACTION

Same Objective Test if a party has only one objective in filing two cases, there exists identity of causes of action and reliefs based on
the same objective standard.70

1. A party may not institute more than one suit for a single cause of action. 71

2. The practice of splitting a cause of action is discouraged because it breeds multiplicity of actions, clogs the dockets
of the courts and operates to cause unnecessary expense to the parties.

3. If a party institutes more than one suit, the filing of one or a judgment upon the merits in anyone is available as a
ground for the dismissal of the others.72 This is also known as Splitting a Cause of Action.

3.1 The remedy of the defendant is to file a motion to dismiss. If the action is pending when the second action is filed,
the dismissal is based on litis pendentia or if a final judgment has been rendered in the first action when the second is
filed, the dismissal is based on res judicata.

3.2 Note though that the rule does not confine itself to a dismissal of the second action. As to which action is to be
dismissed would depend on judicial discretion and attendant circumstances.

4. The rule on splitting a cause of action applies not only to complaints but also to counter-claims and cross-claims. 73

5. The singleness of a cause of action is determined as follows:

5.1 In an action Ex Delicto or one arising from the fault or negligence of a defendant, the singleness of a cause of
action lies in the singleness of the delict or wrong violating the right of a person. If however, one injury results from several
wrongful acts, only one cause of action arises. Example: A party who is injured could not maintain an action for damages
based on a breach of the contract of carriage against the owner of the vehicle in which he was riding and another action
for quasi-delict against the driver/owner of the offending vehicle. The recovery under one remedy necessarily should bar
recovery under another. This, in essence, is the rationale for the proscription in our law againt double recovery for the
same act or omission which, obviously stems from the fundamental rule against unjust enrichment. 74

5.2 In an action Ex Contractu or one arising out of or is founded on a contract, the rules are as follows:

(a) In a single or indivisible contract, only one cause of action arises from a single or several breaches. Example: In a
contract of sale of personal property by installments, the remedies of the unpaid seller is alternative, they are: (1) elect
fulfillment (2) cancel the sale, should the vendees failure to pay cover two or more installments, and (3) foreclose the
mortgage on the thing sold if one has been constituted should the vendee fail to pay two or more installments. 75

(b) If the contract provides for several obligations, each obligation not performed gives rise to a single cause of
action. But if upon filing of the complaint several obligations have already matured, all of them shall be integrated into a
single cause of action. Example: Contract for delivery of goods in part or over a period.

(c) If the contract is divisible in its performance, and the future performance is not yet due, but the obligor has already
manifested his refusal to comply, the contract is entire and the breach is total. Thus, there can only be one action. 76 This is
known as the Doctrine of Anticipatory Breach.

IF A PARTY HAS SEVERAL CAUSES OF ACTION

70
Clark Development Corporation v Mondragon Leisure Resorts, 517 SCRA 203
71
Supra, Section 3, Rule 2
72
Supra, Section 4, Rule 2
73
Mariscal v. Court of Appeals, 311 SCRA 51
74
Joseph v Bautista, 170 SCRA 540
75
Articles 1484,1486, NCC
76
Blossom & Co v Manila Gas Corporation, 55 Phil 226
1. He can join his causes of action77 as he may in one pleading assert, in the alternative or otherwise, as many
causes of action as he may have against the opposing party. It is the assertion of as many causes of action as a party
may have against another in one pleading alone.

2. It has also been defined as the process of uniting two or more demands or rights of action in one action. 78

3. Joinder is subject to the following conditions:

3.1 Party joining the causes of action shall comply with the rule on joinder of parties, which provides that : All persons
in whom or against whom any right to relief is respect to or arising out of the same transaction is alleged to exist, whether
jointly, severally or in the alternative, may except as otherwise provided in these rules, join as plaintiffs or be joined as
defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may
arise in the action.79 Note that the common question of law or fact is relevant only when there are multiple plaintiffs or
defendants.

3.2 Joinder does not allow the inclusion of special civil actions or actions governed by special rules . Example: An
action for a sum of money cannot be joined with an action for iIlegal detainer

3.3 Where causes of action are between same parties but pertain to different venues or jurisdictions, joinder may be
allowed in the RTC provided one of the causes of action falls within its jurisdiction and venue lies therein.

3.4 When the claims in all causes of action are principally for recovery of money, the aggregate amount shall be the
test of jurisdiction.

EFFECT OF MISJOINDER

1. Upon motion of a party or on the initiative of the court, a misjoined cause of action may be severed and
proceeded with separately.80

2. Misjoinder is not ground for a motion to dismiss.

RULE 3PARTIES TO CIVIL ACTIONS

WHO MAY BE PARTIES TO A CIVIL ACTION

1. Only natural or juridical persons or entitles authorized by law may be parties in a civil action. 81 They are called:
Plaintiff he is one who has interest in the subject of the action and obtaining the relied demanded. He may be the
claimant in the original complaint, the counter-claimant in the counter claim, or cross-claimant in a cross-claim or the third
party plaintiff and the Defendant he is one who has an interest in the controversy adverse to the plaintiff. He may be the
original defending party, the defendant in a counter-claim, or cross-defendant in a cross-claim.

1.1 For ready reference, a counter-claim is any claim which a defending party may have against an opposing
party.82A cross-claim is a claim by one party against a co-party arising out of the transaction or occurrence that is the
subject matter either of the original action or of a counter-claim therein. 83A third party claim is a claim that a defending
party may, with leave of court, file against a person not party to an action for contribution, indemnity, subrogation or any
other relief, in respect to his opponents claim.84

2. Juridical persons include:

2.1 The state or any of its political subdivisions, while considered as juridical entities, they can sue but as a general
rule, they cannot be sued without its consent. It is deemed to have given consent when: (a) it enters into a private contract
77
Supra, Section 5, Rule 2
78
1 C.J.S., Actions 61
79
Supra, Section 6, Rule 3
80
Supra, Section 6, Rule 2
81
Supra,,Section 1, Rule 3
82
Supra, Section 6, Rule 6
83
Supra, Section 8, Rule 6
84
Supra, Section 11, Rule 6
(b) it enters into a business operation unless it is an incident of its primary government function (c) it sues a private party,
unless the suit is to resist a claim (d) when there is a failure to abide with what the law or contract provides.
A suit is considered as against the state when: (a) it is against the Republic of the Philippines (b) it is against a
government agency or office without juridical personality (c) it is against the officers or agents of the government and
involves a financial liability.

2.2 Corporations, institutions and entities for public interest or purpose, created by law, like government agencies and
water districts.

2.3 Corporations, partnerships, and associations for private interest or purpose to which the law grants juridical
personality, separate and distinct from that of a shareholder, partner or member.

2.4 A partnership having capital of P 3,000.00 that fails to comply with registration requirements. 85

2.5 A dissolved corporation within a 3 year period after dissolution to settle its affairs. 86

2.6 A foreign corporation cannot be a plaintiff in suit when it is transacting business in the Philippines without a
license.

3. Entities authorized by law are (a) recognized labor organizations (b) estate of a deceased person 87 (c) Roman
Catholic Church88

4. Entities without legal personality referring to 2 or more persons not organized as an entity with juridical personality
enter into a transaction, they may be sued under the name by which they are generally or commonly known but in their
answer to the complaint, their names and addresses must be revealed. 89

4.1 It can also cover a corporation by estoppel90or partnership by estoppel91

5. A sole proprietorship may not be a party as it is neither a natural, juridical or entity allowed or authorized by law. If
one sues as such, the action may be dismissed on the ground of lack of capacity to sue. It does not possess a juridical
personality separate and distinct from the personality of the owner of the enterprise. 92It cannot sue or file or defend an
action in court.93

WHEN PARTIES IMPLEADED ARE NOT AUTHORIZED TO BE PARTIES

1. Where the plaintiff is not a natural or juridical person, or an entity authorized by law, a motion to dismiss may be
filed on the ground that the plaintiff has no legal capacity to sue. Do not confuse it with one who has capacity to sue but he
is not the real party in interest as the ground for dismissal then is failure to state a cause of action.94

2. Where it is the defendant who is not any of the above, the complaint may be dismissed on the ground that the
pleading asserting the claim states no cause of action or failure to state a cause of action , because there cannot be a
cause of action against one who cannot be a party to a civil action.

PARTIES IN INTEREST

1. A real party in interest is the party who stands to be benefited or injured by the judgment or party entitled to the
avails of the suit. Unless otherwise authorized by law of the rules, like in a class suit, all actions must be prosecuted or
defended in the name of the real party in interest. 95

85
Article 1772 in relation to Article 1768, NCC
86
Section 122, BP 68
87
Nazareno v. Court of Appeals, 343 SCRA 637
88
Versoza v. Fernandez, 49 Phil 627
89
Supra, Section 15, Rule 3
90
Section 21, BP 68
91
Article 1825, NCC
92
Mangila v Court of Appeals, 387 SCRA 162, Yao Ka Sin Trading v Court of Appeals, 209 SCRA 763
93
Juasing Hardware v Mendoza, 115 SCRA 783
94
Balagtas v. Court of Appeals, 317 SCRA 69
95
Supra, Section 2, Rule 3
1.1 A real party in interest-plaintiff is one who has a legal right, while a real party in interest-defendant is one who has
a correlative obligation, whose act or omission violates the legal rights of the former. 96 Hence, the determination of who is
a real party in interest goes back to the elements of a cause of action. Evidently, the owner of the right violated stands to
be the real party in interest as plaintiff and the person responsible for the violation is the real party in interest defendant. 97

1.2 To be a real party in interest, the interest must be real, which is a present substantial interest as distinguished
from a mere expectancy or a future, contingent, subordinate or consequential interest. It is an interest that is material and
direct, as distinguished from a mere incidental interest in the question. 98

1.3 Illustrations: (a) In a case where a lawful possessor is disturbed in his possession, it is the possessor, not
necessarily the owner, who can bring an action to recover the possession. 99 (b) The parties to a contract are the real
parties in interest in an action upon it based on the doctrine of relativity of contracts under Article 1311, NCC, unless it
conveys a benefit to a person not a party thereto (c) Actions under Articles 1313 and 1381, NCC when the contracts are
entered into in fraud of creditors. (d) Suits by corporations must be in its name, not that of the stockholders or members.

2. When a suit is not brought in the name of the real party in interest, it may be dismissed on the ground that the
complaint states no cause of action.100 Note that the dismissal is not due to lack of or no legal capacity to sue nor lack of
legal personality, as the latter is not ground for dismissal for under the 1997 Rules of Civil Procedure.

2.1 It states no cause of action because it is not being prosecuted in the name of the real party in interest.

2.2 Lack of Legal Capacity to Sue means that the plaintiff is not in exercise of his civil rights, does not have the
necessary qualification to appear or does not have the character or representation he claims. Example: Trustee or Minor,
as distinguished from Lack of Legal Personality means that the plaintiff is not the real party in interest. Dismissal is based
on the fact that the complaint states no cause of action

3. Legal standing means a personal and substantial interest in the case such that the party has sustained or will
sustain direct injury as a result of the act being challenged. The term interest is material interest, an interest in issue, and
to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest.
Moreover, the interest must be personal and not one based on a desire to vindicate the constitutional right of some third or
unrelated party.

3.1 However, the concept of standing because of its constitutional underpinnings is very different from questions
relating to whether or not a particular party is a real party-in-interest. Although both are directed towards ensuring that
only certain parties can maintain an action, the concept of standing requires an analysis of broader policy concerns. The
question as to who the real party-in-interest is involves only a question on whether a person would be benefited or injured
by the judgment or whether or not he is entitled to the avails of the suit. 101

3.2 Locus standi is defined as a right of appearance in a court of justice on a given question. In private suits, standing
is governed by the real-parties-in interest rule found in Section 2, Rule 3 of the Rules of Court which provides that every
action must be prosecuted or defended in the name of the real party-in-interest. 102 In other cases, locus standi is a partys
personal and substantial interest in a case such that he has sustained or will sustain a direct injury as a result of the
governmental act being challenged. It calls for more than generalized grievance. The term interest means a material
interest, an interest in issue affected by the decree, as distinguished from a mere interest in the question involved or a
mere incidental interest.103 Unless a persons constitutional rights are adversely affected by the statute or ordinance, he
has no legal standing.

4. Be that as it may, we have on several occasions relaxed the application of these rules on legal standing:

In not a few cases, the Court has liberalized the locus standi requirement when a petition raises an issue of
transcendental significance or paramount importance to the people. Recently, after holding that the IBP had no locus
standi to bring the suit, the Court in IBP v. Zamora nevertheless entertained the Petition therein. It noted that the IBP has

96
Gan Hock v. Court of Appeals, 197 SCRA 223
97
Lee v. Romillo, 161 SCRA 589
98
Samaniego v. Aguila, 334 SCRA 438
99
Philippine Trust Company v. Court of Appeals, 320 SCRA 719
100
Tankiko v Cesar, 302 SCRA 559
101
Kilosbayan, Inc. vs. Morato, 246 SCRA 540
102
Baltazar vs. Ombudsman, G.R. No. 136433, December 6, 2006
103
Velarde v Social Justice Society, 392 Phil 618, IBP v Zamora, 338 SCRA 81
advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight
as precedents.104

4.1 Objections to a taxpayers suit for lack of sufficient personality, standing or interest are procedural matters.
Considering the importance to the public of a suit assailing the constitutionality of a tax law, and in keeping with the
Courts duty, specially explicated in the 1987 Constitution, to determine whether or not the other branches of the
Government have kept themselves within the limits of the Constitution and the laws and that they have not abused the
discretion given to them, the Supreme Court may brush aside technicalities of procedure and take cognizance of the
suit.105

4.2 There being no doctrinal definition of transcendental importance, the following determinants formulated by former
Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the
case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in
raising the questions being raised.106

CLASSIFICATION OF REAL PARTIES IN INTEREST

1. Indispensable Party is a party without whom no final determination can be had of an action. 107 They are those
with such an interest in the controversy that a final decree would necessarily affect their rights, so that the courts cannot
proceed without their presence. Example: owners of property over which reconveyance is asserted are indispensable
parties without whom no relief is available and without whom the court can render no valid judgment. 108

1.1 Without the presence of indispensable parties to the suit, the judgment of the court cannot attain real finality. 109
Strangers to a case are not bound by the judgment rendered by the court. 110

1.2 The essential tests of an indispensable party: (a) May relief be afforded the plaintiff without the presence of the
other party? (b) May the case be decided on the merits without impairing the substantial rights of the other party? 111

2. Necessary Party is a party who is not indispensable but who ought to be joined as a party if complete relief is to
be accorded as to those already parties or for a complete determination or settlement of the claim subject of the action. 112
A necessary partys presence is necessary to adjudicate the whole controversy but whose interests are so far separable
that a final decree can be made in their absence without affecting them.

2.1 Example: If the plaintiff only sues a one of his joint debtors, the joint debtor who is not sued is merely a necessary
party. As a consequence, the plaintiff only recovers the share of the debt due from the joint debtor defendant.

2.2 A necessary party is to be impleaded as a party for complete determination of an action, while an indispensable
party is impleaded for a final determination of an action.

3. Pro-Forma Party or nominal party is one who is joined as a plaintiff or defendant not because such party has any
real interest in the subject matter or because relief is demanded, but merely because the technical rules of pleadings
require the presence of such party on the record. 113

PERSONS WHO CAN SUE IN BEHALF OF A REAL PARTY IN INTEREST

The following may sue in behalf of a real party in interest

104
Velarde v. Social Justice Society, supra at note 22, citations omitted.
105
Bugnay Construction and Development Corporation v. Hon. Laron, G.R. No. 79983, 10 August 1989, 176 SCRA 240, 251, citing
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, G.R. No. 81311, 30 June 1988, 163 SCRA 371, 378.
106
Francisco v. Nagmamalasakit na mga Manggagawang Pilipino, Inc., supra at note 30, citing Kilosbayan, Incorporated v. Guingona,
Jr., 232 SCRA 110 (1994)
107
Supra, Section 7, Rule 3
108
Valenzuela v Court of Appeals, 363 SCRA 779
109
Domingo v Scheer, 421 SCRA 468
110
Lucman v Malawi, GR No. 159794, December 19, 2006
111
PNB v. Militar, 467 SCRA 377
112
Supra, Section 8, Rule 3
113
Samaniego v. Aguila, 334 SCRA 438
1. Representatives- actions are allowed to be prosecuted / defended by a representative or by one acting in a
fiduciary capacity but the beneficiary shall be included in the title and shall be deemed to be the real party in interest .114
Examples of representatives are: (a) trustee of an express trust (b) a guardian, executor or administrator, or (c) a party
authorized by law or the Rules.

1.2 An agent acting in his own name and for the benefit of an unknown principal may sue or be sued without joining
the principal except when the contract involves things belonging to the principal. This refers to an agency with an
undisclosed principal.115

2. Husband and Wife- as a general rule shall sue or be sued jointly, except as provided by law. 116 Non joinder of
partys husband is not fatal. It is a mere formal defect. 117

2.1 They are required to sue and be sued jointly as they are joint administrators of the Absolute Community or the
Conjugal Partnership.118

2.2 The exceptions provided by law are when the property relations of husband and wife are governed by the rules
on separation of property119 or one is disposing of exclusive property.120

2.3 Note that the legal provision against the disposition of conjugal property by one spouse without the consent of the
other has been established for the benefit, not of third persons, but only for the spouse for whom the law desires to save
the conjugal partnership from damages that might be caused. No other party can avail of the remedy other than the
aggrieved spouse.121

3. Minors or Incompetents may sue or be sued with the assistance of father, mother, guardian or, if he has none, a
guardian ad litem.122

3.1 A guardian ad litem is a special guardian appointed by the court in which a particular litigation is pending to
represent or assist a minor or an incompetent person involved in or has interest in the property subject of litigation. His
status as such exists only in that particular litigation in which the appointment occurs.

3.2 Note that the appointment of a guardian ad litem may occur in the following: for minor heirs when substituting for a
deceased party123, incompetency or incapacity of a party 124, service of summons on a minor or incompetent 125, and when
the best interest of the child require it.126

JOINDER OF PARTIES

Joinder of Parties refers to the act of uniting several parties in a single suit either as plaintiffs or defendants.

1. The rule on joinder of parties states that: All persons in whom or against whom any right to relief in respect to or
arising out of the same transaction is alleged to exist, whether jointly, severally or in the alternative, may except as
otherwise provided in these rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law
or fact common to all such plaintiffs or to all such defendants may arise in the action. 127

2. Joinder of Parties, as a rule, is permissive when there is a question of law or fact common to all the plaintiffs or
defendants. This means that the right to relief or to resist the action arises out of the same transaction or event or series

114
Supra, Section 3, Rule 3
115
Article 1883, NCC
116
Supra, Section 4, Rule 3
117
Miranda v Besa, 435 SCRA 532
118
Articles 96 and 124, Family Code
119
Article 145, Family Code
120
Article 111, Family Code
121
Villaranda v Villaranda, 423 SCRA 571
122
Supra, Section 5, Rule 3
123
Supra, Section 16, Rule 3
124
Supra, Section 18, Rule 3
125
Supra, Section 10, Rule 14
126
Article 222, Family Code
127
Supra, Section 6, Rule 3
of transactions or events. Example: action by passengers of a common carrier for injuries sustained in an accident, there
is no community of interest, the extent of the interest is limited to the extent of damages being claimed by each.

3. It becomes compulsory when the parties to be joined are indispensable parties. 128

4. The exception to compulsory joinder of parties is when the subject of the action is proper for a class suit. The
subject matter of the controversy is proper for a class suit when it is one of common or general interest to many persons
so numerous that it is impractical to join all as parties. 129 All the parties who are interested in the action as plaintiffs or
defendants are all indispensable parties but not all need to be joined.

5. The three requisites of a class suit are:

5.1 The subject matter of the controversy is one of common or general interest to many persons. There must be an
indivisible right affecting many individuals whose particular interest is of indeterminable extent and is incapable of
separation. This requires that the benefit to one is a benefit to all. Example: A suit filed by minors represented by their
parents, in behalf of themselves and others equally concerned with the preservation of the countrys resources, their
generation as well as generations yet unborn to compel the DENR Secretary to cancel all timber license agreements and
to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements 130. The
interest must be common and not independent of each member of the class and should not conflict with each other. For
this reason, owners of subdivision lots in a subdivision cannot sue as a class because their interest is only in their
respective lots.131

5.2 The parties affected are so numerous that it is impracticable to join all as parties

5.3 The parties bringing or defending the class suit are found by the court to be sufficiently numerous and
representative as to fully protect the interest of all.

5.4 To comply with the 2nd and 3rd requisite, the Complaint most allege: (1) existence of a subject matter which is of
common or general interest to many persons, and (2) existence of a class and the number of persons belonging to that
class

6. Improper for a class suit is when a claimant is interested only in collecting his claims and has no concern in
protecting the interests of the others132 or each of the plaintiffs has a separate claim or injuries not shared in common by
the others. Hence, each must prove his own damages. 133

7. It can be brought by the plaintiffs as a class or may be filed against the defendants as a class

7.1 Any party in interest shall have the right to intervene to protect his individual interest.

7.2 The general rule, is that the party bringing the suit in his own name and that of others similarly situated has the
right to control the suit, but, it shall not be dismissed or compromised without the approval of the court. 134

EFFECTS OF FAILURE TO JOIN AN INDISPENSABLE PARTY OR A NECESSARY PARTY

1. If there is a failure to join an indispensable party, the court must order the plaintiff to amend his complaint for the
purpose of impleading the indispensable party.

1.1 If the plaintiff fails, refuses or the party cannot be sued because he is a non-resident defendant in a personal
action, the complaint must be dismissed.135

2. If there is a failure to join a necessary party, the pleader in the pleading in which a claim is asserted without
joining a necessary party shall (a) set forth the name of the necessary party, if known and (b) state the reason for
omission.

128
Supra, Section 7, Rule 3
129
Supra, Section 12, Rule 3
130
Oposa v Factoran, 224 SCRA 792
131
Tuason v. Register of Deeds, 157 SCRA 613
132
Cadalin v POEA Administrator, 238 SCRA 721
133
Newsweek Inc. v. IAC, 142 SCRA 171
134
Supra, Section 2, Rule 17
135
NDC v Court of Appeals, 211 SCRA 422
2.1 If the court finds the reason for the omission is not meritorious, it may order the inclusion of the omitted necessary
party if jurisdiction over his person is obtained.

2.2 If pleader fails to comply with order for inclusion without justifiable cause, it shall be deemed a waiver of the claim
against the party,but the non-inclusion does not prevent the court from proceeding with the action, and the judgment
therein shall be without prejudice to rights of such necessary party. 136

3. Misjoinder of parties is not a ground for dismissal. Parties may be dropped or added by order of the court on
motion of any party or on its own initiative at any stage of the action and on such terms that are just. Any claim against a
misjoined party may be severed and proceeded against separately. 137

3.1 A party is misjoined when he is made a party to the action although he should not be impleaded. A party is not
joined when he is supposed to be joined but is not impleaded.

3.2 While misjoinder or non-joinder is not a ground for dismissal, the failure to obey the order of the court to drop or
add a party is a ground for dismissal.138

IF A PARTY TO BE JOINED AS A PLAINTIFF DOES NOT CONSENT OR CANNOT BE OBTAINED

1. The non-consenting party may be made a defendant and the reason therefor shall be stated in the
complaint.139He will be known as the unwilling co-plaintiff.

WHO WILL PLAINTIFF SUE IF HE IS UNCERTAIN

1. If the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as
defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the
other.140

2. An example is in an action where the owner of goods is not sure whether they were lost in transit or while it was
on deposit in the warehouse of the arrastre operator. He may sue the shipper or the operator of the warehouse in the
alternative although the right against the shipper is based on admiralty while that against the operator is based on
contract. Another is an action for damages arising from loss of goods due to a collision.

IF THE IDENTITY/NAME OF THE DEFENDANT IS UNKNOWN

1. He may be sued as the unknown owner, heir, devisee or by such other designation as the case may require, when
the identity or name is discovered, the pleading must be amended accordingly. 141 An example is an action to recover real
property from several unknown heirs of a common ancestor.

EFFECT OF DEATH OF A PARTY

1. When a party dies and his claim is not extinguished, it shall be the duty of counsel of the deceased party to
inform the court within 30 days after such death of the : (a) fact of death (b) name and address of the legal representative
of the deceased party.142. If counsel fails to comply, he may be subject to disciplinary action.

1.1 Once notice is given, the court shall order the legal representative to appear and be substituted within 30 days
from notice.

1.2 Examples of actions that survive are those arising from delict, 143 tortuous conduct,144recovery of real or personal
property145 recovery of money arising from a contract, express or implied
136
Supra, Section 9, Rule 3
137
Supra, Section 11, Rule 3
138
Supra, Section 3, Rule 17
139
Supra, Section 10, Rule 3
140
Supra, Section 13, Rule 3
141
Supra, Section 14, Rule 3
142
Supra, Section 16, Rule 3
143
Aguas v Llamas, 5 SCRA 959
144
Melgar v. Buenviaje, 179 SCRA 196
145
Board of Liquidators v Kalaw, 20 SCRA 987
1.3 Examples of actions that do not survive are personal actions of support, annulment and legal separation. The
court in this instance will just dismiss. No substitution is required. The remedy is to file a claim before the probate court
under Rule 86.

2. The purpose of substitution is the protection of the right of every party to due process. 146The non compliance
renders the proceedings infirmed because the court acquires no jurisdiction over the person of the legal representative of
the deceased.147

2.1 If no substitution occurs despite knowledge or notice of the death of a party the proceedings undertaken shall be
considered null and void as it amounts to a lack of jurisdiction as the need for substitution is based on the right of a party
to due process.

2.2 Note though that in an ejectment case, the non substitution of the deceased by his legal representatives because
of the failure of counsel to inform the court does not deprive it of jurisdiction. The judgment may be enforced not only
against the defendants but also against the members of their family, their relatives, or privies who derived their right of
possession from the deceased defendant.148

3. Note that heirs may be allowed to be substituted for the deceased without requiring the appointment of an
executor or administrator and the court can appoint a guardian ad litem for minor heirs. When the defendant does not
have any heirs, the court shall require the opposing party to procure the appointment of an executor or administrator. This
can also occur when no legal representative is named or if one is named, he fails to appear within the specified period.
The expenses if any, can be recovered as costs.

3.1 Heirs may designate one or some of them as their representative before the trial court. 149

4. There is no requirement for summons as it is the order of substitution and its service that effects the substitution
of the deceased by his representative.

5. The effect of death is to terminate the attorney-client relationship. A deceased client has no personality and
cannot be represented by an attorney.150Neither does he become counsel for the heirs of the deceased unless his
services are engaged by the heirs.151

DEATH/SEPARATION OF A PUBLIC OFFICER

1. If sued in his public capacity and he dies, resigns or otherwise ceases to hold office. The action may be
maintained and continued by or against his successor, if within 30 days after successor assumes the office or such time
as granted by the court it is satisfactorily shown by a party that there is a substantial need for continuing and maintaining
it and that the successor adopts or continues or threatens to continue the action of his predecessor.152

2. Before substitution and there is no express assent, the public officer shall be given reasonable notice of the
application and be accorded an opportunity to be heard.

3. The requisites for a valid substitution of a public officer who has sued or been sued in his official capacity are: (a)
satisfactory proof by any party that there is a substantial need for continuing or maintaining the action (b) the successor
adopts or continues or threatens to adopt or continue the acts of his predecessor (c) the substitution is effected within 30
days after the successor assumes office or within the time granted by the court, and (d) notice of the application to the
other party.153

4. The failure to make the substitution is ground for the dismissal of the action.

EFFECT OF DEATH OF THE DEFENDANT ON A CONTRACTUAL MONEY CLAIM


146
Torres v Court of Appeals, 278 SCRA 79
147
Brioso v Mariano, 396 SCRA 549
148
Florendo v. Coloma, 129 SCRA 304
149
San Juan v. Cruz, G.R. No. 167321, July 31, 2006
150
Lavina v. Court of Appeals, 171 SCRA 691
151
Lawas v Court of Appeals, 146 SCRA 173
152
Supra, Section 17, Rule 3
153
Rodriguez vs. Jardin, G.R. No. 141834, July 30, 2007
1. If the action is for the recovery of money that arises from a contract, express or implied, and the defendant dies
before entry of a final judgment the rule is it will not be dismissed but shall be allowed to continue until entry of
judgment, a favorable judgment obtained shall be enforced in the manner provided by the rules for prosecuting claims
against the estate of a deceased person.154

2. Hence, in case of the death of the obligor the rules are: (a) If he dies before the action is filed, a money claim
must be filed in the testate or intestate proceedings (b) if he dies during the pendency of an action, the action continues
until entry of judgment, and the judgment claim is then filed with the testate or intestate proceedings. It must be noted that
a money claim judgment need not be proven because it is conclusive. Note further, that if property has been levied upon
before death, it can disposed of in the manner provided by the rules on execution of judgments because it has already
been segregated from the estate. If there is a deficiency, a money claim can be filed subsequently.

2. If the claim does not arise from a contract, like claims for recovery, enforcement of a lien or torts, the rules are: (a)
if he dies before the action is filed, it may be filed against the executor or administrator (b) if already filed , it continues to
final judgment and may be executed on as against the executor or administrator. 155

3. In a case for ejectment where the defendant died before the case could be decided and without being able to
testify on his counterclaim for damages. The trial court dismissed the ejectment suit and ordered the plaintiff to pay the
wife of the defendant moral damages and attorneys fees. The plaintiff contends on appeal that the counterclaim should
have been dismissed pursuant to Rule 3, Section 21 (old rule). Held: The argument is misplaced, defendant was the
plaintiff in his counterclaim, the rule is not applicable as it pertains to a defendant who dies before final judgment. In this
case, it is the plaintiff who died and all that is required is a timely motion for substitution. No recovery though can be
allowed as no evidence was adduced.156

4. If a claim involves a conjugal debt that was not brought and one of the spouses die before filing, the claim must be
brought in the testate or intestate proceedings of the deceased spouse. 157

5. If it is the plaintiff who dies, the rules are: (a) if action is purely personal to him, the action is abated (b) if action is
not purely personal, it continues but counsel must give notice of death.

EFFECT ON INCOMPETENCY/INCAPACITY ON AN ACTION

1. The court, upon motion with notice, may allow the action to be continued by or against the incompetent or
incapacitated person assisted by his guardian or guardian ad litem. 158

EFFECT OF A TRANSFER OF INTEREST PENDING LITIGATION

1. The action may be continued by or against the original party, unless the court upon motion directs the person to
whom interest is transferred to be substituted in the action or joined with the original party. 159

2. The rule refers to a transfer pendente lite. The transferee pendente lite shall stand exactly in the shoes of the
transferor. Consequently, any judgment will be binding upon him.

3. A transferee pendent elite does not have to be included or impleaded by name in order to be bound by the
judgment because the action or suit may be continued for or against the original party or the transferor and still binding on
the transferee.160

4. In a case on appeal where the transferee pendente lite did not appeal, he nevertheless was benefited by the
appeal of the transferor pendent lite.161

INDIGENT/PAUPER LITIGANT

154
Supra, Section 20, Rule 3
155
Supra, Section 7, Rule 39
156
UST v Court of Appeals, GR No. 124250, October 18, 2004
157
Alipio v Court of Appeals, GR No. 134100, September 29, 2000
158
Supra, Section 3 and 18, Rule 3
159
Supra, Section 19, Rule 3
160
State Invetsment House, Inc. v Court of Appeals, 318 SCRA 47
161
Jocson v Court of Appeals, GR 88297, March 22, 1990
1. An indigent or pauper litigant is one who litigates on a claim that he has no money, or property sufficient and
available for food, shelter and basic necessities for himself and his family. 162

2. An indigent or pauper litigant must file an ex-parte application for authority to litigate as an indigent that is too be
resolved by the court after hearing.

2.1 Attached to the motion is an affidavit attesting to the fact that he does not earn a gross income of PHP 4,000.00
in Metro-Manila, or PHP 3,000.00 elsewhere and has no real property with a fair market value of PHP 50,000.00.

2.2 Said affidavit must be supported by another affidavit of a disinterested person. Note that recently, an indigent
litigant has been defined as one (a) whose gross income and that of their immediate family does not exceed an amount
double the monthly minimum wage of an employee and (b) who does not own real property with a fair market value as
stated in the current tax declaration of more than PHP 300,000.00.

2.3 If there is any falsity in the affidavit or that of the disinterested person, it shall constitute sufficient ground to
dismiss the action or strike out the pleading, without prejudice to whatever criminal liability is incurred. 163

3. The effect of being allowed to litigate as an indigent or pauper litigant are: (a) exemption from the payment of
docket fees and other lawful fees (b) exemption from TSN fees which the Court may order to be furnished but, the
amounts due shall be a lien on a favorable judgment unless the Court orders otherwise.

4. The allowance to litigate as an indigent or pauper litigant can be contested at any time before judgment is
rendered by any adverse party. If found to be meritorious, the proper fees are assessed and are to be collected. If it is not
paid, execution shall issue on the payment thereof without prejudice to other sanctions.

5. On appeal, a motion to litigate as an indigent or pauper litigant is allowed.

WHEN SOLICITOR GENERAL IS REQUIRED TO APPEAR

1. In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rule or
regulation, the court, in its discretion, may require the appearance of the Solicitor General, who may be heard in person or
through a representative duly designated by him.164

RULE 4 VENUE OF ACTIONS

VENUE DEFINED AND DISTINGUISHED

1. Venue is the place where the action is to be commenced and tried. It has also been defined as the proper location
for the trial of a case.

2. Distinguishing it from jurisdiction: (a) venue is the place where action is commenced and tried, jurisdiction is the
authority of a court to hear and decide the action (b) venue may be waived, jurisdiction over the subject matter
cannot be waived, but that over the person can be waived (c) venue may be the subject of a written agreement,
jurisdiction cannot be subject of a written agreement 165 (d) a court cannot motu-propio dismiss on improper venue, while
if it has no jurisdiction, a court can motu-propio dismiss the action.

3. Venue establishes a relation between the plaintiff and defendant, while jurisdiction establishes a relation between
the court and subject matter.

4. Improper venue is not jurisdictional. To illustrate: If a case for illegal detainer is filed in the MTC-Manila but should
have been filed in the MTC-Baguio as the property is located in Baguio, the dismissal is due to improper venue as every
MTC has jurisdiction over illegal detainer cases. Territorial jurisdiction applies only in criminal cases where venue is also
jurisdictional.

RULES ON VENUE

162
Supra, Section 21
163
Section 19, Rule 141, Rules of Court
164
Supra, Section 22, Rule 3
165
NOcum v Tan, 470 SCRA 639
1. If it is a Real Action or one that affects title to or possession of real property, or an interest therein, it shall be
commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved or a
portion thereof is situated. Forcible Entry and Detainer actions are to be commenced and tried in the Municipal Trial Court
which has jurisdiction over the area wherein the real property involved, or any portion thereof, is situated. 166

1.1 Is the complaint for cancellation of a real estate mortgage with damages, a real or personal action? It is a real
action, the controlling factor in determining venue of such a case is the primary objective for which it is filed. An action for
cancellation of a real estate mortgage is necessarily an action affecting title to real properties since the primary objective
is to recover the properties that the bank had foreclosed on. 167

2. If it is a Personal Action or one that is brought for the recovery of personal property, for the enforcement of a
contract or recovery of damages for its breach of for the recovery of damages due to injury to person or property or such
all other actions shall be commenced or tried where the plaintiff or any of the principal plaintiffs reside or any of the
defendants reside, or if a non-resident defendant, where he may be found at the election of the plaintiff168

2.1 Reside means the place of abode, whether permanent or temporary, as distinguished from domicile or the fixed
permanent residence, where if one is absent he intends to return.

2.2 In personal actions, it is the residence of the proprietor, not the business address of the sole proprietorship that is
considered to determine venue as a sole proprietorship has no legal personality. 169

2.3 R engaged the services of L as geodetic surveyor to subdivide two parcels of land located in Batangas. As
payment for Ls services, R agreed to given him one lot. After the survey, R delivered to L possession of one lot as
payment for his services. However, R failed to deliver to L the tile of the lot. L, who resides in Quezon City, filed with the
RTC of Quezon City an action against R for specific performance to compel R to deliver to him the title to the lot. R moved
to dismiss on the ground of improper venue, contending that since his is a real action, the complaint must be filed in the
RTC of Batangas where the lot is situated. Is R correct? No, R is not correct. This action for specific performance is a
personal action. The venue therefore, was properly laid in Quezon City where the plaintiff resides. It is not a real action
because plaintiff L is not seeking the recovery of the lot as he is already in possession thereof. He is merely asking the
delivery of the title to him, which is a personal action. 170

3. If the defendant is a non-resident or one who does not reside and is not found in the Philippines and the action
affects the personal status of the plaintiff, or any property of said defendant located in the Philippines , the action may be
commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is
situated or found.171

3.1 Actions affecting the personal status of the plaintiff refers to personal actions of annulment of marriage, nullity of
marriage, legal separation, declaration of presumptive death

3.2 The provision refers to a Quasi in Rem action in which an individual is named as a defendant, and the purpose of
the action is to subject his interest therein to an obligation or lien burdening the property.

3.3 A non-resident alien who cannot be found can sue and be sued as by filing his complaint, he submits to the
jurisdiction of the Court, even if he has never been able to enter the Philippines. 172

THE RULES ON VENUE ARE NOT APPLICABLE

1. In cases where a specific rule or law provides otherwise as below illustrated:

166
Supra, Section 1, Rule 4
167
Go v UCPB, GR No. 156187, November 11, 2004
168
Supra, Section 2, Rule 4
169
Mangila v Court of Appeals, 387 SCRA 162
170
Dimo Realty & Development, Inc. et al. v.
Dimaculangan, G.R. NO. 130991, March 11, 2004
171
Supra, Section 3, Rule 4
172
Dilweg v Philipps, 12 SCRA 243
1.1 Quo Warranto proceedings may be instituted in the Supreme Court, Court of Appeals or the Regional Trial Court
exercising territorial jurisdiction over the area where the respondent/s reside. If the Solicitor General commences the
action, he may do so in the Supreme Court, Court of Appeals or the Regional Trial Court of Manila. 173

1.2 The criminal or civil action for damages due to libel can only be instituted either in Regional Trial Court of the
place where he holds office or in the place where the alleged libelous article was printed and first published; and if the
offended parties are private individuals, the venue shall be in the Regional Trial Court of the place where the libelous
article was printed and first published or where any of the offended parties actually resides at the time of the commission
of the offense.174

1.3 Intracorporate Controversies are to be filed in the Regional Trial Court where the principal office of the corporation
is located.175

2. Where the parties have validly agreed in writing before the filing of the action as to exclusive venue. 176

2.1 Any agreement as to venue must be in writing and for exclusivity, the intent must be clear, otherwise, it will be
interpreted to allow for an additional venue.

2.2 The freedom of the parties to stipulate on the venue is however subject to the usual rules on contract
interpretation. Where the provision appears to be one-sided as to amount to a contract of adhesion, the consent of the
parties thereto may well be vitiated and the venue stipulation will not be given effect. 177

2.3 The rule on venue is party oriented. It looks to the convenience of the parties. Thus the rule on venue as to real
actions presumes that the place where the subject real property is located is convenient to the parties. Hence, the rule as
to venue can yield to an agreement as to exclusive venue. Section 4, Rule 4 applies to both real and personal actions as
long as the requisites are met.

2.4 Venue as stipulated in the promissory note shall govern notwithstanding the absence of a stipulation as to venue
in an accompanying surety agreement as the latter can only be enforced in conjunction with the former. 178

HOW VENUE IS QUESTIONED

1. Venue may be questioned in (a) in a motion to dismiss 179, or (b) in an answer by way of an affirmative defense 180.
If it is not questioned, it is deemed waived.

RULE 5-UNIFORM PROCEDURE IN TRIAL COURTS

1. The procedure in Municipal Trial Court shall be the same as in the Regional Trial Court, except when (a) a
provision applies only, expressly or impliedly, to a particular court, or (b) In civil cases covered by the Rules on Summary
Procedure

2. An example of a provision that applies only to a Municipal Trial Court is that which refers to an appeal taken from
an order of the lower court dismissing the case without trial on the merits. 181

PROCEDURE IN REGIONAL TRIAL COURTS

173
Supra, Section 7, Rule 66
174
Article 360, Revised Penal Code
175
RA 8799, and A.M. 01-02-04-CS, March 13, 2001
176
Supra, Section 4, Rule 4
177
Sweet Lines v Teves, 83 SCRA 361
178
Philippine Bank of Communications v Lim, 455 SCRA 714
179
Supra, Section 1 (c) ,Rule 16
180
Supra, Section 6, Rule 16
181
Supra, Section 8, Rule 40
RULE 6- KINDS OF PLEADINGS

PLEADING DEFINED

1. It is a written statement of the respective claims and defenses of the parties submitted to the court for appropriate
judgment.182

1.1 Pleadings are necessary to secure the jurisdiction of the court so that the subject matter can be presented for its
consideration in the manner sanctioned by the rules of procedure.

1.2 They are intended to secure a method by which the issues may be properly laid before the court. 183

1.3 They are designed to present, define and narrow the issues, to limit proof to be submitted in the trial, to advise the
court and the adverse property of the issues and what are relied upon as causes of action or defenses.

2. The pleadings that are allowed are: (a) Claims of a party are asserted in the complaint, counterclaim, cross-claim,
3rd party complaint (4th..), or complaint in intervention (b) Defenses of a party are alleged in the answer to the pleading
asserting a claim against him (c) Reply to the answer184

2.1 Under the Rules on Summary Procedure, the only pleadings allowed are the complaint, compulsory counterclaim,
cross claim pleaded in the answer, and the answers thereto.

CONSTRUCTION OF PLEADINGS

1. All pleadings are to be liberally construed so as to do substantial justice. 185

2. While such is the rule, a party is strictly bound by the allegations, statements or admissions made in his pleadings
and cannot be permitted to take a contradictory position. 186

2.1 In case there are ambiguities in pleadings, the same must be construed most strongly against the pleader and
that no presumptions in his favor are to be indulged in. This rule proceeds from the theory that it is the pleader who
selects the language used and if his pleading is open to different constructions, such ambiguities are at his peril.

SPECIFIC KINDS OF PLEADINGS

1. Complaint- which is the pleading alleging the plaintiffs cause of action or causes of action.

1.1 The names/residences of the plaintiffs and defendants must be stated in the complaint 187

2. Answer- which is a pleading in which a defending party sets forth his defenses 188.

2.1 Its essential purpose is to secure joinder of the issues and not to lay down evidentiary matter. 189

2.2 The following are the kinds of defenses190 that may be interposed in an answer are:

(a) Negative Defense which is a specific denial of a material fact or facts alleged in the pleading of a claimant
essential to his cause/s of action. A specific denial is made by 191: (1) Specifically denying the material averment in the
pleading of the adverse party and setting forth the substance of the matter upon which he relies for such denial (2)Deny
only a part of the averment by specifying that so much of it is true and deny the remainder (3) Allegation of lack of

182
Supra, Section 1, Rule 6
183
Santiago v. De Los Santos, 61 SCRA 146
184
Supra, Section 2, Rule 6
185
Concrete Aggregates Corporation v. Court of Appeals, 266 SCRA 88
186
Santiago v. De Los Santos, 61 SCRA 146
187
Supra, Section 3, Rule 6
188
Supra, Section 4, Rule 6
189
Naga Development Corporation v Court of Appeals, 41 SCRA 105
190
Supra, Section 5, Rule 6
191
Supra, Section 10, Rule 8
knowledge or information sufficient to form a belief as to the truth of the material averment in the pleading of the adverse
party.

(b) Affirmative Defense which is an allegation of new matter, which although hypothetically admitting the material
allegations in the pleading would nevertheless bar or prevent recovery. They include fraud, statute of limitations, release,
payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, or any other matter by way of
confession and avoidance.

2.3 The purpose of requiring the defendant to make a specific denial is to make him disclose the matters alleged in
the complaint which he succinctly intends to disprove at the trial, together with the matter which he relied upon to support
the denial.192

2.4 Note that the rule that a defending party who sets up an affirmative defense hypothetically admits the allegations
does not apply if the defense set up is any of the grounds for extinguishment of the obligation. The effect is that the
defending party is deemed to have admitted the validity of the obligation, and if the motion to dismiss is denied, what is
left to be proven is the fact of payment or non-payment.

2.5 Any of the grounds for a motion to dismiss may be pleaded as an affirmative defense. He may then move for a
preliminary hearing as if a timely motion to dismiss has been filed. 193

3. Counterclaim- which is any claim which a defending party may have against an opposing party. 194

3.1 Counterclaims may be compulsory or permissive. They are distinguished as follows: (a) In a compulsory
counterclaim, it arises out of or is connected with the transaction or occurrence constituting the subject matter of the
opposing partys claim, while in a permissive counterclaim, it does not arise out of or is connected with the transaction or
occurrence constituting the subject matter of the opposing partys claim (b) a compulsory counterclaim is barred if not set
up in the answer, while a permissive counterclaim is not barred even if not set up (c) the plaintiff is not required to answer
a compulsory counterclaim and he cannot be in default, while a permissive counterclaim must be answered after payment
of docket fees, otherwise a party may be held in default (d) a compulsory counterclaim is not an initiatory pleading so as
to required a certification as to non-forum shopping, while a permissive counterclaim is an initiatory pleading.

3.2 The requisites of a compulsory counterclaim are:(a) It arises out of or is necessarily connected w/the transaction
or occurrence that in the subject matter of the partys claim (b)It does not require for adjudication the presence of 3 rd
parties over whom the court cannot acquire transaction (c) It must be cognizable by the regular courts of justice (d) It must
be within the jurisdiction of the court both as to amount and the nature thereof, except that in an original action before the
RTC, counterclaim is considered compulsory regardless of amount (e) It must already be existing at the time defending
party files his answer195

3.3 The requisites of a permissive counterclaim are: (a) It does not require for adjudication the presence of 3 rd
parties over whom the court cannot acquire jurisdiction (b) It must be cognizable by the regular courts of justice (c) It must
be within the jurisdiction of the court both as to amount and the nature thereof, except that in an original action before the
RTC, counterclaim is considered compulsory regardless of amount

3.4 To determine whether a counterclaim is compulsory or not, the Court has devised the following tests: (a) are the
issues of fact or law raised by the claim and counterclaim largely the same? (b) would res judicata bar a subsequent suit
on defendants claim absent a compulsory counterclaim? (c) will substantially the same evidence support or refute
plaintiffs claim as well as defendants counterclaim? and (d) is there any logical relation between the claim and
counterclaim. If the answers are all in the alternative, it is a compulsory counterclaim. 196 Item (d) is also known as the
compelling test of compulsoriness as conducting separate trials of the respective claims of the parties would entail a
substantial duplication of effort and time by the parties and the court. 197

192
Aquintey v. Tibong, GR No. 166704, December 20, 2006
193
Supra, Section 6, Rule 16
194
Supra, Section 6, Rule 6
195
Supra, Section 7, Rule 6, Section 8, Rule 11
196
Reyes De Leon v. Del Rosario, 435 SCRA 232
197
Quintanilla v. Court of Appeals, 279 SCRA 397
3.5 Illustrations of compulsoriness are: (a) expenses for cultivation even if inconsistent with the defense of ownership
in an action to recover real estate 198 (b) expenses for the preservation of property in action for annulment of title on the
ground of fraud199(c) damages for usurpation of the produce in action to quiet title 200 (d) cost of improvements in an action
for recovery of ownership or possession201

3.6 A compulsory counterclaim that is not yet in existence at the time of the filing of an answer may be presented or
set-up by a supplemental pleading before judgment. 202

3.7 A compulsory counterclaim may implead persons not parties to the original complaint as their presence is required
for granting complete relief in the determination of a counter-claim or cross claim, the court shall order them brought in as
defendants, if jurisdiction over them can be obtained. 203 Summons must thus be served upon them as they must answer
the counterclaim as they cannot rely on the rule that the defendant in the counterclaim is deemed to have adopted the
allegations of the complaint in his answer.204
4. A cross claim is a claim by one party against a co-party arising out of a transaction/occurrence that is the subject
matter either of the original action or the counter-claim. It may include a claim that a party against 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. 205

4.1 Note that counterclaims may be asserted against an original counter-claimant and that cross-claims may also be
filed against an original cross-claimant.206

5. A reply is a pleading, the office or function of which is to deny or allege facts in denial or avoidance of new matters
alleged by way of defense in the answer and thereby join or make an issue as to such matters.

5.1 If a reply is not filed, all new matters are deemed controverted. If plaintiff wishes to interpose any claims arising
out of the new matters so alleged, such claims shall be set forth in an amended/supplemental complaint.

5.2 If the defense is based on an actionable document, it must be replied to, otherwise it is admitted.

6. A 3rd Party Complaint is a claim that a defending party may, with leave of court, file against a person, not a party,
called 3 party defendant for contribution, indemnity, subrogation or any other relief in respect of his opponents claim.207
rd

6.1 Examples: (a) Contribution- A sues X for collection of money based on a promissory note signed jointly and
severally with Y. X may file a complaint against Y for contribution (b)Indemnity- S, as surety, is sued for recovery of the
obligation of M. S may file a complaint against M for whatever amount he may be adjudged to pay as surety
(c)Subrogation- X, as lessor, sues Y, as lessee for repairs. Y may file a complaint against his sub-lessee who filed to
comply with the obligation to repair (d) Other Relief- X bought land from Y. Later X is sued by A for recovery of the land. X
may file a complaint against Y for his warranty against eviction.

6.2 An answer to a 3rd party complaint may include (a) defenses, counterclaims or cross-claims, including such
defenses that the 3rd Party Plaintiff may have against the original plaintiffs claim, and (b) In proper cases, he may assert a
counter-claim against the original plaintiff in respect to his claim against the 3 rd party plaintiff.208 An example is: a
reinsurer (3rd party defendant) may set up in his answer the defense alleged by defendant insurer that loss is caused by
plaintiff insured. However the 3 rd party defendant cannot file a counterclaim against the original plaintiff as there is no
privity of contract between them.

WHEN NEW PARTIES CAN BE BROUGHT

198
Camara v. Aguilar, 94 Phil 527
199
Maclan v. Garcia, 97 Phil 119
200
Doliente v. Blanco, 87 Phil 67
201
Baclayan v. Court of Appeals, 182 SCRA 761
202
Supra, Section 9, Rule 11, Intramuros Administration v Contacto, 402 SCRA 581
203
Supra, Section 12, Rule 6
204
Lafarge Cement Philippines, Inc. v Luzon Continental Land Corporation, 443 SCRA 522
205
Supra, Section 8, Rule 6
206
Supra, Section 9, Rule 6
207
Supra, Section 11, Rule 6
208
Supra, Section 13, Rule 6
1. If the presence of others besides the parties is required for the granting of full relief in the determination of a
counter-claim or cross- claim the court shall order them to be brought in as defendants, if jurisdiction over them can be
obtained209.

RULE 7 PARTS OF A PLEADING

PARTS OF A PLEADING

1. The parts of a pleading are Caption, Body, Signature, Address, Verification and Certification against Forum
Shopping.

SPECIFICS OF THE PARTS OF A PLEADING

1. The Caption sets forth the (a) Name of the court (b) Title of the action, this includes an indication of the name of
the parties, who are required to be named in the original complaint/petition. In subsequent pleadings, the name of the first
party on each side is sufficient with an appropriate indication when there are other parties. (c) Docket Number , if one has
already been assigned.210

1.1 In an appeal, the rules211 requires all names to be indicated in the Notice of Appeal and Record on Appeal

1.2 In case of a variance between the caption and allegations, the latter will prevail. The court may grant a relief
warranted by the allegations and proof even if no such relief is prayed for. 212

2. The Body sets forth its designation, the allegations or a partys claims / defenses, the relief prayed for, and the
date of the pleading.

2.1 The allegations in the body shall be divided unto paragraphs so numbered to be readily identified. Each shall
contain Statement of a single set of circumstances so far as it can be done with convenience. A paragraph may be
referred to by its number in all succeeding pleadings.

2.2 Headings must be used when 2 or more causes of action are joined, the statement of the first shall be prefaced by
: First Cause of Action etc. When: 2 or more paragraphs are addressed to one or several causes of action in the
complaint, they shall be prefaced by: Answer to the First Cause of Action and so on. If it addresses several causes of
action, the paragraphs shall be prefaced accordingly.

2.3 Relief should be specified but it may add a general prayer for such further or other relief as may be deemed just
and equitable. The relief does not constitute a part of the statement of the cause of action. It does not serve to limit or
narrow the issues presented.213It is the material allegations, not the legal conclusions that determines the relief that a party
is entitled to.214A court may grant a relief not prayed for as long as warranted by the allegations and the presented proof.

2.4 Every pleading is required to be dated.

3. Signature and Address- every pleading must be signed by the party or counsel representing him, stating in either
case his address which should not be a post office box.

3.1 Note the word or because a party may litigate / defend Pro Se or for himself without aid or counsel. This applies
even if a party is already represented by counsel.

3.2 Only the signature of either party operates to validly convert a pleading from one that is unsigned to one that is
signed.215

209
Supra, Section 12, Rule 6
210
Supra, Section 1, Rule 7
211
Supra, Sections 5 and 6, Rule 41
212
Lorbes v. Court of Appeals, 351 SCRA 716
213
UBS v. Court of Appeals, 332 SCRA 534
214
Banco Filipino Savings and Mortgage Bank v. Court of Appeals, 332 SCRA 241
215
Republic v. Kenrick Development Corporation, 351 SCRA 716
3.3 Significance of Counsels Signature it is a Certificate by him that: (a) He has read the pleading (b)To the best of
his information, knowledge and belief there is good ground to support it (c) It is not interposed for delay

3.4 If the pleading is unsigned it produces no legal effect. However, the court in its discretion can allow the deficiency
to be remedied if it shall appear that it was due to inadvertence and not intended for delay. 216

3.5 An address is required for service of pleadings or judgments

3.6 Disciplinary action may be imposed on counsel in relation to the rule when (a) He deliberately files an unsigned
pleading (b) Signs a pleading in violation of the Rule (c) Alleges scandalous or indecent matter (d) Fails to
promptly report to the court a change in his address

4. A Verification is an affidavit that the affiant has read the pleading and that the allegations therein are true and
correct of his personal knowledge and/or is based on authentic records..

4.1 The verification requirement is intended to secure an assurance that the allegations in the pleading are true and
correct and not the product of the imagination or a matter of speculation and that it is being filed in good faith. 217

4.2 If a pleading that is required to be verified is not verified or contains a verification that does not comply with what
is required by the rules, it shall be treated as an unsigned pleading.

4.3 The court may order the correction of the pleading or act on an unverified pleading if the attending circumstances
are such that strict compliance would not fully serve substantial justice, which after all, is the basic aim of the rules of
procedure.218

4.4 A pleading need not be verified, except when otherwise specifically required by law or the rules 219.

4.5 A Verification is required under rules governing (a) cases covered by the Rules on Summary Procedure (b)
Petition for relief from judgment / order 220 (c) Petition for review 221 (d) Appeal by certiorari 222 (e)Petition for annulment of
judgment 223 (f) Injunction224 (g) Receivership225 (h) Support226 (i) 69) Certiorari, Prohibition or Mandamus 227 (j) Quo
Warranto228 (k) Expropriation229 (l) Forcible Entry / Detainer230 (m) Indirect Contempt 231(n) Petition for a writ of habeas
corpus, writ of amparo, writ of habeas data (o) Petition for cancellation or correction of entries in the Civil Registry (p)
Petition for the constitution of a family home (q) Petition for Declaration of Absolute Nullity of Marriage, Annulment of a
Voidable Marriage, Legal Separation (r) Petition for Guardianship (s) Applications for TRO or Injunction.

5. Certification against Forum Shopping is executed by the plaintiff or principal party who shall certify under oath in
the Complaint or Initiatory Pleading asserting a claim or relief or in sworn certification annexed thereto and simultaneously
filed therewith : (a) That he has not therefore commenced any action or filed any claim involving the same issues in
any court, tribunal or quasi judicial agency and to the best of his knowledge, no such other claim or action is pending
therein (b) If there is such other pending action or claim, a complete statement of the present status thereof (c) That if
he should thereafter learn that the same or similar action has been filed or is pending, he shall report that fact within 5
days therefrom to the court wherein his complaint / initiatory pleading has been filed. 232

216
Supra, Section 3, Rule 7
217
Sarmiento v. Zaratan, GR No. 167471, February 5, 2007
218
Robert Development Corporation v. Quitain, 315 SCRA 150
219
Supra, Section 4, Rule 7
220
Supra, Section 3, Rule 38
221
Supra, Section 1, Rule 42
222
Supra, Section 1, Rule 45
223
Supra, Section 4, Rule 47
224
Supra, Section 1, Rule 58
225
Supra, Section 1, Rule 59
226
Supra, Section 1, Rule 61
227
Supra, Sections 1,2,3, Rule 65
228
Supra, Section 1, Rule 66
229
Supra, Section 1, Rule 67
230
Supra, Section 3, Rule 70
231
Supra, Section 3, Rule 71
232
Supra, Section 5, Rule 7
5.1 The lack of a certification is not curable by amendment, but such shall be cause for dismissal of the complaint.
The dismissal shall be without prejudice unless otherwise provided, upon motion and after hearing.233

5.2 The non-complaince with any of the undertakings or the submission of a false certificate shall constitute indirect
contempt without prejudice to corresponding administrative and criminal actions. Provided, that if the acts of the party or
counsel clearly constitute will and deliberate forum shopping, it shall then be ground for summary dismissal with prejudice,
and shall constitute direct contempt as well as cause for administrative sanctions.

5.3 Forum Shopping exists when as a result of an adverse opinion in one forum, a party seeks a favorable opinion,
other than by appeal or certiorari, in another, or when he institutes two or more actions or proceedings grounded on the
same cause, on the gamble that one or the other court would make a favorable disposition. The most important factor in
determining the existence of forum shopping is the vexation caused the courts and parties-litigants by a party who asks
different courts to rule on the same or substantially the same reliefs. 234

5.4 It also occurs when a party attempts to have his action tried in a particular court or jurisdiction where he feels he
will receive the most favorable judgment.

5.5 It has been said to exist also where the elements of litis pendentia are present or where a final judgment in one
case will amount to res judicata in another. Hence, the following requisites concur: (a) identity of parties, or at least such
parties represent the same interests in both actions (b) identity of rights asserted and relief prayed for, the relief being
founded on the same facts, and (c) identity of the two preceding particulars is such that any judgment rendered in the
other action will, regardless, of which party is successful, amount to res judicata in the action under consideration. 235

5.6 The purpose of the certification against forum shopping is to prohibit and penalize the evils of forum shopping. 236
Forum Shopping is a deplorable practice because it results in unnecessarily clogging of the already heavily burdened
docket of the courts.237

5.7 The execution of the certification is required to be accomplished by the petitioner himself as it is the petitioner
himself who has actual knowledge of whether or not he has initiated similar actions or proceedings in different courts or
agencies.

5.8 If there are several plaintiffs, the general rule is that all of them must sign but it must be noted that there is
jurisprudence to the effect that: (a) the execution by one of the petitioners or plaintiffs in a case constitutes substantial
compliance where all the petitioners, being relatives and co-owners of the properties in dispute, share a common interest
in the subject matter of the case. 238 (b) the case is filed as a collective raising only one cause of action or defense 239 (c)
the signing by 1 spouse substantially complies as they have a common interest in the property 240 or is signed by husband
alone is substantial compliance as subject of case is recovery of conjugal property 241 (d) 2 of the parties did not sign as
they were abroad. It was considered reasonable cause to exempt them from compliance with the requirement that they
personally execute the certificate242

5.9 If the plaintiff or petitioner is a juridical person, it can only execute the certification through properly delegated
individuals.243 Note though that there are corporate officers who may sign the certification without need of a board
resolution, namely: (a) Chairperson of the Board (b) President (c) General Manager or Acting General Manager (d)
Personnel Officer, and (e) Employment Specialist in a labor case. 244 The submission in the motion for reconsideration of
the authority to sign the verification and certification constitutes substantial compliance with procedural requirements. 245

233
Castillo v Court of Appeals, 426 SCRA 369
234
Benguet Electric Cooperative, Inc. v Flores, 287 SCRA 449
235
TADI v Solilapsi, 394 SCRA 269
236
BA Savings Bank v Sia, 336 SCRA 484
237
Ruiz v Drilon, 209 SCRA 695
238
Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy v Guadalquiver, 429 SCRA 722
239
HCC Construction and Development Corporation v Emily Homes Subdivision Homeowners Association, 411 SCRA 504
240
Dar v Alonso Legasto, 339 SCRA 306
241
Docena v Lapesura, 355 SCRA 658
242
Hamilton v Levy, 344 SCRA 821
243
National Steel Corporation v. Court of Appeals, 388 SCRA 85
244
Cagayan Valley Drug Corporation vs. Commissioner of Internal Revenue, 545 SCRA 10
245
Asean Pacific Planners vs. City of Urdaneta, 566 SCRA 219
5.10 Counsel has been allowed to sign the certification in the following instances: (a) Where the counsel is the Solicitor
General has been deemed to be substantial compliance 246 (b) Certification by acting regional counsel of NPC was
accepted because it was his basic function to prepare pleadings and to represent NPC Mindanao as such he was in
the best position to know and certify if a similar action was pleading or had been filed 247 (c) Certification was signed by
counsel. The procedural lapse may be overlooked in the interest of substantial justice. 248 (d) Certification was executed by
an in house counsel is sufficient compliance with the Rules 249 (e) With respect to a corporation, the certification against forum
shopping may be signed for and its behalf by a specifically authorized lawyer who has personal knowledge of the facts required to be
disclosed in such document.250

5.11 The Supreme Court has gone to the extent of invoking the power to suspend the rules by disregarding the
absence of the certification in the interest of substantial justice. 251

5.12 As a general rule, the certification cannot be filed at a later date. However, in some instances the Supreme Court
has allowed the late filing when special or compelling reasons justify the same, such a the substantive merit of the case. 252

5.13 Problem: The rule in Section 1, Rule 17 is that the plaintiff may dismiss his complaint by filing a notice of dismissal
at any time before service of the answer or of a motion for summary judgment. As a general rule, such dismissal is without
prejudice. Suppose P filed a complaint against D, and before service of the answer or of motion for summary judgment, P
caused the dismissal of his complaint by filing a notice of dismissal. Months later, P filed the same complaint against D. In
the certification on non-forum shopping appended to the second complaint, P failed to mention about the prior filing and
dismissal of the first case. Is Ps failure to mention about the prior filing and dismissal of the first case fatal?

No. An omission in the certification on non-forum shopping about any event or case which would not constitute res
judicata or litis pendentia is not fatal. In the problem presented, the dismissal of the first case would not constitute res
judicat253a precisely because such dismissal is without prejudice to the refilling of the case. 254

5.14 Also, a case pending before the Ombudsman cannot be considered for purposes of determining forum shopping
as the power of the Ombudsman is only investigative in character and its resolution cannot constitute a valid and final
judgment because its duty is to file the appropriate case before the Sandiganbayan.

DISTINGUISH BETWEEN VERIFICATION / CERTIFICATION

1. The distinctions are: (a) A verification is a sworn statement that the allegations are true and correct based on
personal knowledge and/or authentic records, while a certification states that no action or claim involving the same issues
have been filed or is pending (b) A verification is required in complaints, initiatory pleadings and some responsive
pleadings, while a certification is required only in complaints and initiatory pleadings (c) A defect in a verification is curable
by amendment or an order to verify, while that in a certification cannot be cured by amendment (d) A defect in the
verification does not immediately give rise to a ground for dismissal, while a defect in a certification gives rise to a ground
for dismissal (e) a verification may be signed by counsel, while a certification must be signed by a party.

RULE 8 MANNER OF MAKING ALLEGATIONS IN PLEADINGS

HOW ALLEGATIONS ARE MADE IN A PLEADING

1. In general, a pleading must contain in a methodical and logical form a plain concise and direct statement of the
ultimate facts on which the party pleading relies for his claim or defense 255

246
Commissioner of Internal Revenue v SC Johnson, 309 SCRA 87
247
Robern Development Corporation v Quitain, 315 SCRA 150
248
Sy Chin v Court of Appeals, 345 SCRA 673
249
Mercury Drug Corporation v Libunao, 434 SCRA 404
250
Athena Computers, Inc. v Reyes, 532 SCRA 343 (September 5, 2007)
251
De Guia v. De Guia, 356 SCRA 287
252
Loyola v. Court of Appeals, 245 SCRA 477, Roadway Express v. Court of Appeals, 264 SCRA 696, Sy v. Landbank, 336 SCRA
419, Shipside Incorporated v. Court of Appeals,352 SCRA 334, Ateneo De Naga v. Manalo, 458 SCRA 325
253
Sevilleja v. Laggui, 362 SCRA 715
254
Roxas v. Court of Appeals,363 SCRA 207
255
Supra, Section 1, Rule 8
1.1 Ultimate facts are the essential facts constituting the plaintiffs cause of action. A fact is essential if it cannot be
stricken out without leaving the statement of the cause of action insufficient.

1.2 Examples of ultimate facts: (a) That an obligation has been constituted, that party must comply, that there is no
compliance (b) That party is the owner of property, that he has a right to its use/possession, that he has been
dispossessed

1.3 A pleading must only aver ultimate facts as no conclusions are supposed to be averred. Conclusions are for the
court to make.

2. Mere evidentiary facts or those that are necessary for the determination of the ultimate facts are to be omitted.
Evidentiary facts are the premises upon which conclusions of ultimate facts are based.

2.1 Examples of evidentiary facts are: (a) That the obligation as covered by a promissory note was executed before
specified persons or that defendant has several letters indicating intention to/or not to pay (b) How property was acquired

2.2 They are not supposed to be averred as evidentiary matters must be presented to the court during the trial of the
case, not in the pleadings.

3. Laws may be pleaded only if the pleading is an Answer.

PLEADING ALTERNATIVE CAUSES OF ACTION OR DEFENSES

1. A party may set forth two or more statements of a claim or a defense alternatively or hypothetically, either in one
cause of action or defense or in separate causes of actions or defenses. If two or more statements are made in the
alternative and if one of them if made independently would be sufficient, the pleading is not made insufficient by the
insufficiency of one or more of the alternative statements. 256

2. The provision recognizes the possibility that the liability of the defendant may possibly be based on two causes of
action or that the defendant may possibly have alternative defenses, even if they may conflict with each other.

2.1 Examples of alternative causes of actions: (a) allegations for breach of contract of carriage and tort, or (b)
allegations for breach of contract and fraud, while examples of alternative defenses are: (a) defense of failure to
repurchase by plaintiff and that property was inherited, or (b) debt has been paid or that it has prescribed, or (c) fraud
attended the execution of the contract, but even assuming that the contract is valid, the action has prescribed.

3. The object of the provision is to relieve a party from making a definite election in cases where his claim or defense
might fall within two different substantive classes. Hence, a party may state as many claims/defenses as he has
regardless of inconsistency.

3.1 It does not require that all the alternative causes of action/defenses be sufficient for the plaintiff/defendant to be
entitled to relief. It is enough that one of them if made independently would be sufficient to support a cause of action or
defend against it. Hence, the pleading is not made insufficient by the insufficiency of one or more of the alternative
statements.

3.2 Overruling of one does not bar other defenses. However, if not set up, determination of one shall bar the
determination of the other.

HOW TO PLEAD CONDITIONS PRECEDENT

1. A condition precedent as determined by common usage are matters which must be complied with before a cause
of action of action arises.

2. Hence, a general averment of the performance or occurrence of all conditions precedent is required. 257

256
Supra, Section 2, Rule 8
257
Supra, Section 3, Rule 8
3. Examples of conditions precedent are: (a) tender of payment is required before consignation 258 (b) exhaustion of
administrative remedies before resort to judicial action (c) that earnest efforts at a compromise have been exerted, the suit
being one between members of the same family (d) that prior resort to conciliation has been undertaken to no avail

4. The failure to comply is an independent ground for a motion to dismiss. 259

PLEADING CAPACITY TO SUE AND TO BE SUED

1. The following must be averred: (1) capacity to sue or be sued (2) authority of a party to sue or be sued in a
representative capacity (3) legal existence of an organized association of persons that is made a party. 260

1.1 Note the cross reference to Sections 1 and 3, Rule 3 referring to who may be parties and representative parties,
and to Section 1(d), Rule 16 referring to a motion to dismiss on the ground of lack of legal capacity to sue, meaning that a
party is not in possession of his civil rights, does not have the qualification to appear, or does not have the character or
representation claimed.

2. A party desiring to raise the issue of lack of legal capacity shall do so by specific denial, which shall include such
supporting particulars as peculiarly within the pleaders knowledge.

HOW TO AVER FRAUD, MISTAKE, CONDITION OF MIND

1. Fraud and mistake must be stated with particularity. It is not enough for the pleading to just allege fraud.

1.1 It must state the time, place and specific acts constituting the fraud.

2. Condition of mind, such as malice, intent, knowledge may be averred generally. 261
2.1 Based on human experience, it is difficult to state the particulars of a condition of the mind.

HOW TO AVER/ PLEAD A JUDGMENT/DECISION OF A DOMESTIC/FOREIGN COURT, JUDICIAL/QUASI-JUDICIAL


OFFICER TRIBUNAL BOARD

1. It is sufficient that a general allegation of the existence of the judgment is made, without setting forth matter
showing jurisdiction to render it.262

1.1 Jurisdiction in this case is presumed.

IF ACTION/DEFENSE IS BASED ON AN ACTIONABLE DOCUMENT

1. Where the action or defense is based on an actionable document or the written document upon which the plaintiff
or defendant relies for his claim or defense, it is pleaded by (a) setting forth the substance of such document in the
pleading and attaching the original/copy as an annex or (b) setting it forth verbatim in the pleading. 263

2. It is contested by specifically denying it under oath and setting forth what he claims to be the fact.

2.1 A mere denial is insufficient as the same must be under oath or verified.

2.1 The requirement does not apply if: (a) adverse party is not/does not appear to be a party to the actionable
document. Example: Heirs are sued on a document executed by a person they will inherit from (b) when compliance with
an order for an inspection of the original document is refused. 264 (c) when the document is not an actionable document but
is merely evidence of the claim or existence of the actionable document . Example: demand letters (d) when the party who
has the benefit of an implied admission waives the benefit. Example: he presents evidence as to genuineness and due
execution

258
Article 1256, NCC
259
Supra, Section 1(j), Rule 16
260
Supra, Section 4, Rule 8
261
Supra, Section 5, Rule 8
262
Supra, Section 6, Rule 8
263
Supra, Section 7, Rule 8
264
Supra, Section 8, Rule 8
3. The effect of not specifically denying an actionable document under oath lead to the admission of its genuineness
and due execution. It thus means that the party executed the document or was executed by someone authorized by him,
it was in the words/figures set forth in the pleading, and that the formal requirements of law have been observed. Thus,
there is no need to present it formally in evidence because it is an admitted fact.

3.1 A party though is not barred from interposing other defenses as long as it is not inconsistent with the implied
admission. Examples of inconsistent defenses are: forgery, lack of authority to execute the document, that it was signed in
another capacity, it was not delivered or the words/figures as pleaded are not the same as when the document was signed
. On the other hand, consistent defenses are: fraud, payment, want or illegality of consideration, usury, prescription,
release or waiver or estoppel.

HOW ARE OFFICIAL ACT/DOCUMENTS AVERRED

1. It is sufficient to aver that document was issued or the act is done in compliance with law. 265 Example: Issuance
of Certification to file action by Lupon Tagapayapa chair.

HOW ARE SPECIFIC DENIALS MADE

1. A specific denial is made266 by: (a) Specifically denying the material averment in the pleading of the adverse party
and setting forth the substance of the matter upon which he relies for such denial, this is known as an absolute denial
(b)Deny only a part of the averment by specifying that so much of it is true and deny the remainder, this is known as
partial denial (c)Allegation of lack of knowledge or information sufficient to form a belief as to the truth of the material
averment in the pleading of the adverse party, this is known as denial by disavowal of knowledge.

A negative pregnant denial is a denial pregnant with an admission of the substantial facts alleged in the pleading. 267

1.1 If the denial is a mere repetition of the allegations in the complaint it is considered a negative pregnant denial
which is conceded to actually be an admission. Example: A complaint alleges: Plaintiff extended a loan to Defendant in
the amount of P500,000.00 on July 27, 2006 in Baguio City. The defendant in his answer alleges: Defendant specifically
denies that Plaintiff extended a loan to Defendant in the amount of P500,000.00 on July 27, 2006. The answer is a mere
repetition of the allegations made in the complaint. The answer is vague as to what it really denies. Is it the existence of
a loan that is denied? Is it the amount? The date? The place?

1.2 When the complaint alleges that: the sum of PHP 10,000.00 is a reasonable sum to be allowed plaintiff as and
for attorneys fees. If the defendants denial is a mere repetition, then it is an admission that any sum less than PHP
10,000.00 is reasonable.

1.3 If allegations are not denied in the prescribed manner, a party is deemed to have made a general denial which is
tantamount to an admission.268

1.4 A denial by disavowal of knowledge will amount to an admission, if to the knowledge of the court, it is so plainly
and necessarily within the defendants knowledge that the averment of ignorance must be untrue.

1.5 Exceptions to the rule that matters are admitted by the failure to make a specific denial are: (a) the amount of
unliquidated damages269 (b) conclusions which are not required to be denied as only ultimate facts must be alleged, and
(c) non-material allegations as only those that are material have to be denied.

1.6 Note that when the allegations pertain to (a) allegations of usury in a complaint to recover usurious interest, or (b)
genuineness and due execution of an actionable document, the specific denial is required to be made under oath
otherwise they are admitted.

265
Supra, Section 9, Rule 8
266
Supra, Section 10, Rule 8
267
Caneland Sugar Corporation v. Alon, 533 SCRA 28, (September 12, 2007)
268
Supra, Section 11, Rule 8
269
Supra, Section 11, Rule 8
STRIKING OUT OF A PLEADING OR MATTER CONTAINED THEREIN

1. If the pleading or any matter therein is sham, false, redundant, immaterial, impetinent or scandalous, the court
can order the pleading or matter contained therein to be stricken therefrom (a) upon motion made by a party before
responding to a pleading (b) if no responsive pleading is allowed / permitted by the Rules, upon motion by a party within
20 days after service of the pleading, or (c) upon the Courts own initiative 270

RULE 9 EFFECTS OF FAILURE TO PLEAD

1. The general effect of the failure to plead is that the defenses / objections not so pleaded in an Answer or a Motion
to Dismiss are deemed waived.

1.1 However, if it appears from the pleadings or evidence on record that (a) the Court has no jurisdiction over the
subject matter (b) there is another action pending between the same parties for the same cause, or (c) the action is barred
by prior judgment or statute of limitations, the court shall dismiss the claim.271 These defenses are not barred if not set up

2. A compulsory counterclaim or a cross-claim not set up shall also be barred. 272 Note that this is in consonance with
the requirement of the Rules that a compulsory counterclaim or cross claim existing at the time of the filing of the answer
must be contained therein273 but if it arises after the filing of an answer, it may be set up in a supplemental pleading before
judgment274 or if failure is due to oversight, inadvertence, excusable neglect or when justice requires, it may be set up by
amendment with leave of court before judgment. 275

WHAT RESULTS IF DEFENDANT / DEFENDING PARTY FAILS TO ANSWER WITHIN THE TIME ALLOWED

1. If there is failure to plead within the time allowed, the defendant may be declared in default upon compliance with
the following: (a) the plaintiff must file a motion to declare the defendant in default (b) serve notice of his motion to
defendant, which must include a notice of hearing (c) at the hearing, show proof of failure on the part of the defendant to
file his answer within the reglementary period.276

1.1 A court cannot motu propio declare a defendant in default.

2. Default is a procedural concept that occurs when the defending party fails to file his answer within the
reglementary period.

2.1 It does not occur from the failure of the defendant to attend the pre-trial, where absence is a cause for the court to
order presentation of evidence ex-parte or at the trial, where absence will be construed as a waiver to assail the evidence
against him or is a waiver of the right to adduce evidence.

2.2 Note the exceptions to the concept that default is triggered by the failure of the defending party to file the required
answer, as a default judgment has been held to lie if (a) a party refuses to obey an order requiring him to comply with the
various modes of discovery277, or (b) if a party or managing agent of a party willfully fails to appear before the officer who
is to take his deposition.278

3. It is an error to declare a defendant in default where an answer has already been filed. 279

4. Note that the rule is different if covered by the Rules on Summary Procedure, where a motion to declare
defendant in default is prohibited.280
270
Supra, Section 12, Rule 8
271
Supra, Section 1, Rule 9
272
Supra, Section 2, Rule 9
273
Supra, Section 8, Rule 11
274
Supra, Section 9, Rule 11
275
Supra, Section 10, Rule 11
276
Supra, Section 3, Rule 9
277
Supra, Section 3 (c), Rule 29
278
Supra, Section 5, Rule 29
279
Cathay Pacific Airways v. Romillo, Jr., 141 SCRA 451
280
Section 19 (h), 1991 Rules of Summary Procedure
4.1 Instead, the court can motu proprio or upon a motion render judgment as may be warranted by the facts alleged in
the complaint and limited to what is prayed for.281

5. A declaration in default is not an admission of the truth or the validity of the plaintiffs claims. 282

ONCE DECLARED IN DEFAULT

1. The court has two options,it: (a) can proceed to render judgment granting the claimant such relief as his pleading
may warrant, unless, (b) the Court in its discretion requires the claimant to submit the evidence. Such reception may be
delegated to the Clerk of Court, who must be a member of the Bar.

2. The extent of the relief that may be awarded shall not exceed the amount or be different in kind from that prayed
for nor award unliquidated damages.283

2.1 Hence, even if there is proof to indicate a greater relief, the court will refrain from awarding it.

3. The defaulted defendant is nevertheless entitled to notice of subsequent proceedings but he cannot take part in
the trial.284

4. Effect of Partial Default, where a pleading asserting a claim states a common cause of action against several
defending parties, some of whom answer while others do not , the court shall try the cause against all upon the answers
thus filed and render judgment upon the evidence presented. 285

4.1 It is not within the authority of the court to divide a case by first hearing the case ex parte as against the defaulted
defendants and render a judgment against them, then proceed to hear the case as against the non-defaulted
defendants.286

WHAT ARE THE REMEDIES OF A DEFAULTED DEFENDANT

1. The available remedies of a defendant who is declared in default are as follows:

1.1 Motion to Set Aside Order of Default under oath, filed at any time after notice of declaration in default and before
judgment. Defendant must show by an Affidavit of Merit stating that failure to file an answer was due to FAME and that he
has a meritorious defense

1.2 Motion for New Trial on the ground of FAME if the trial court has rendered judgment but it has not yet become final

1.3 Appeal the judgment by default, not the order as it is interlocutory, and cannot be appealed, within 15 days from
notice of judgment.

Note that if in the meantime, a motion to set aside order of defendant has been denied, it can be assigned as an error in
the appeal. The non- filing of a motion to set aside or for a new trial does not bar an appeal.

On appeal, the judgment may be assailed on the ground that the judgment is excessive or is different in kind from that
prayed for or that the plaintiff failed to prove his material allegations or that the decision is contrary to law. However, he is
prohibited from seeking a reversal or modification on the basis of evidence submitted before the appellate court, as to
allow it would mean that he is retaining the right to adduce evidence, which he lost in the trial court. 287

1.4 Petition for Relief from Judgment based on FAME, provided no appeal has been taken within 60 days from notice
and 6 months from entry of judgment.288

1.5 Action to Annul Judgment based on extrinsic or collateral fraud , which is such that a party is induced or prevented
from presenting his case or having a full and fair trial, within 4 years from discovery of the fraud.
281
Section 6, II, 1991 Rules of Summary Procedure
282
Monarch Insurance v. Court of Appeals, 333 SCRA 7
283
Supra, Section 3 (d), Rule 9, Vlason v. Court of Appeals, 310 SCRA 26
284
Supra, Section 3 (a), Rule 9
285
Supra, Section 3 (c), Rule 9
286
Heirs of Mamerto Manguiat, et al. v. Court of Appeals, G.R. No. 150768, August 20, 2008
287
Rural Bank of Sta. Catalina, Inc. vs. Land Bank of the Philippines, G.R. No. 148019, July 28, 2004
288
Supra, Rule 38
1.6 Certiorari, if improperly declared in default or motion to set aside was denied and is tainted with grave abuse of
discretion, which is filed within 60 days from notice or judgment order resolution or 60 days from notice of the denial of a
motion for reconsideration.289

2. If despite a declaration in default, the court subsequently acts on motions for extension or a motion for a bill of
particulars, the effect is that the order of default is deemed lifted. The trial court is not considered to have acted with grave
abuse of discretion.290

CASES WHERE NO DEFAULT LIES

1. In the following cases, default does not lie: (a) annulment of marriage (b) declaration of nullity of marriage (c)
legal separation (d) expropriation, and (e) forcible entry, illegal detainer and the other actions covered by the Rules on
Summary Procedure.

1.1 Regarding items (a) to (c), the court shall order the prosecuting attorney to investigate whether or not collusion
exists, and if there is no collusion, to intervene for the state in order to see that the evidence so presented is not
fabricated.291

RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS

WHAT ARE AMENDMENTS

1. Amendments consist of: (a ) Adding or striking out an allegation or the name of any party (b) Corrections of
mistakes in the name of a party or mistaken or inadequate allegation or description in any other respect.

1.1 The purpose for allowing amendments is so that the actual merits of the controversy may speedily be determined
without regard to technicalities and in the most expeditious and inexpensive manner. 292

2. The kinds of amendments are:

2.1 Formal Amendments which are defects in the designation of the parties, other clerical or typographical errors that
may summarily be corrected provided no prejudice is caused the adverse party and are allowed at any stage, at the
Courts own initiative or on motion.293

2.2 All other amendments are considered Substantial Amendments

WHEN AMENDMENTS CAN BE MADE

1. Formal and Substantial amendments can be made once as a matter of right before a responsive pleading is
served, or in case of a Reply, at any time within 10 days after it is served.294

1.1 Prior to the filing of an answer, the plaintiff has the absolute right to amend the complaint whether a new cause of
action or change in theory is introduced.295

1.2 Note that the filing of a motion to dismiss does not bar an amendment as it is not a responsive pleading and does
not preclude the right to the plaintiff to amend his complaint. 296

1.3 In fact, even if the motion to dismiss has been granted, the plaintiff can still amend his complaint before the
dismissal becomes final as long as no answer has of yet been served and the order dismissing the complaint has not yet
become final. 297
289
Supra, Rule 65
290
Republic of the Philippines vs. Sandiganbayan, G.R. No. 148154, December 17, 2007
291
Supra, Section 3,(e), Rule 9
292
Supra, Section 1, Rule 10
293
Supra, Section 4, Rule 10
294
Supra, Section 2, Rule 10
295
Remington Industrial Sales Corporation v Court of Appeals, 382 SCRA 499
296
Remington Industrial Sales v. Court of Appeals, 382 SCRA 499
297
Bautista v. Maya-Maya Cottages, Inc., 476 SCRA 416
2. After the filing of a responsive pleading, Substantial amendments require leave of court, but leave may be refused
if it appears to the court that the motion was on made with intent to delay. Orders related to leave shall be made upon
motion filed in court, with notice to the adverse party and opportunity to be heard. 298

2.1 That the amendments should not substantially alter the cause of action or defense is no longer the rule as the
Rules now allow the pleading of alternative causes of action/defenses 299 and that all such causes or defenses must be
pleaded in accordance with the rule on waiver. 300

2.2 The Trial Court may refuse leave or amendments when: (a) A responsive pleading has been filed and the motion
for leave to amend is made with intent to delay (b) The purpose is to confer jurisdiction as the court must first acquire
jurisdiction before it can act.301 Note the instance when the amendment is made as a matter of right (c) The purpose is to
cure the defect of a non-existent cause of action. Example: An amendment of the complaint to correct its having been filed
prematurely or when the obligation was not yet due.

2.3 If no leave is obtained, the pleading has no standing and may be stricken from the records

2.4 Problem: Complaint is filed against several defendants. Some defendants answer, the others have not yet filed
their answers. Amendments will be allowed as a matter of right against those who have not filed answers, and with leave
of court, as against those who have filed their answers. 302

3. Substantial amendments can also be made when it is necessary to conform to the evidence. This occurs when
issues are tried with the express or implied consent of parties. If such, they are treated in all respects as if they have been
raised in the pleadings303, thus paving the way for an amendment of the pleadings to conform to the evidence. This is
made upon motion of any party, even after judgment though the failure to amend does not affect the result of the trial.
Example: Increased claim for the payment of damages or made to authorize presentation of evidence. This occurs when
evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow
the pleadings amended and shall do so with liberality to authorize presentation of evidence. 304

3.1 Thus , the failure of a complaint to state a cause of action may be cured by (a) Presentation of evidence to prove
that cause of action followed by an amendment to conform to evidence, or (b) Evidence is objected to and the trial court
sustains the objection, this is then followed by an amendment with leave of court to authorize presentation of evidence.
Same remedies may be resorted to when a party fails to raise a defense in his pleading.

THE EFFECTS OF AN AMENDED PLEADING

1. It supersedes the pleading that it amends

2. Admissions in the superseded pleading may be received in evidence against the pleader because it is not
expunged from the records and admissions in the superseded pleading are in the nature of judicial admissions made by a
party in the course of the proceedings which do not require proof and ordinarily cannot be contradicted except by showing
that it was made through palpable mistake or that no such admission was made. 305

3. Claims or defenses alleged in the superseded pleading but not incorporated in the amended pleading shall be
deemed waived.306

HOW IS AN AMENDED PLEADING FILED

1. A new copy of the entire pleading incorporating the amendments which shall be indicated by appropriate marks
shall be filed.307

298
Supra, Section 3, Rule 10
299
Supra, Section 2, Rule 8
300
Supra, Section 1, Rule 9
301
Tirona v Alejo, 367 SCRA 17, Gaspar v Dorado, 15 SCRA 331
302
Siasoco v Court of Appeals, 303 SCRA 186
303
Bernardo v Court of Appeals, 263 SCRA 660
304
Supra, Section 5, Rule 10
305
Supra, Section 4, Rule 129
306
Supra, Section 8, Rule 10
307
Supra, Section 7, Rule 10
1.1 Note that the date of filing of amended pleadings does not retroact to the date of the filing of the original pleading.
Hence, the statute of limitations runs until the filing of the amendment, but, an amendment that merely supplements and
amplifies facts originally alleged in the complaint relates back to the date of the commencement of the action and is not
barred by the statute of limitations that expired after service of the original complaint. Example: The statement of a cause
of action is imperfect and is corrected by an amended complaint, the plea of prescription relates to the time of filing but the
rule will not apply if a new defendant is impleaded in the amended complaint and prior to its filing prescription has set in.

WHAT IS A SUPPLEMENTAL PLEADING

1. A supplemental pleading setting forth transactions, occurrences or events which have happened since the date of
the pleading sought to be supplemented Example: Setting up counterclaims after an answer has been filed. 308

2. A supplemental pleading is always upon motion, and on such terms as are just and upon reasonable notice and
the adverse party is given 10 days from notice of order admitting the supplemental pleading to plead thereto.309

3. A supplemental pleading is meant to supply deficiencies in aid of an original pleading, not to entirely substitute the
latter.310 Thus, when the cause of action stated in the supplemental complaint is different from the cause of action
mentioned in the original complaint, the court should not admit the supplemental complaint. 311

DISTINCTIONS BETWEEN AN AMENDED PLEADING AND A SUPPLEMENTAL PLEADING

1. The distinctions are (a) An amended pleading is filed either as a matter of right or with leave, a supplemental
pleading is always with leave (b) An amended pleading alleges matters occurring before the filing of the original pleading,
while a supplemental pleading alleges matters occurring after the filing of the original pleading (c) An amended pleading
supersedes the original pleading, while a supplemental pleading allows the original pleading to stand.

RULE 11: WHEN RESPONSIVE PLEADINGS ARE TO BE FILED

RESPONSIVE PLEADING DEFINED

1. A responsive pleading is one which seeks affirmative relief and/or set up defenses. 312

2. However, a motion to dismiss is not considered a responsive pleading.

ANSWER TO THE COMPLAINT

1. Within 15 days after service of summons unless a different period is fixed by the Court. 313

1.1 The same period applies to third party complaints.314


2. If covered by the Rules on Summary Procedure, it is 10 days

3. If the complaint is amended: (a) as a matter of right, within 15 days from being served with a copy (b) if with leave
of court, within 10 days from notice of order admitting the same. If no new answer is filed, a previously filed answer may
serve as the answer. The same period holds for answers to amended counter-claims, cross claims, third party complaints
and complaints in intervention.315

4. If defendant is a foreign private juridical entity, within 15 days if service of summons is made on the resident agent
or within 30 days from receipt of summons by the entity at its home office if received by the government office designated
by law.316

5. If it is a complaint in- intervention, within 15 days from notice of the order admitting the complaint in intervention

308
Supra, Section 9, Rule 11 and Section 2, Rule 9
309
Supra, Section 6, Rule 10
310
Shoemart, Incorporated v Court of Appeals, 190 SCRA 189
311
APT v Court of Appeals, 324 SCRA 533
312
Marcos-Araneta vs. Court of Appeals, 563 SCRA 41
313
Supra, Section 1, Rule 11
314
Supra, Section 5, Rule 11
315
Supra, Section 3, Rule 11
316
Supra, Section 2, Rule 11, Section 128, Corporation Code
6. If it is a supplemental complaint, within 10 days from notice of the order admitting the supplemental complaint.
The answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is
filed.317

7. If it involves a complaint served on a non-resident defendant who is not in the Philippines through any of the
modes of extra-territorial service, including by publication, within a reasonable time which shall not be less than 60 days
after notice as the court may specify in its order granting leave to effect extra-territorial service of summons

8. If it involves corporate election contests or inspection of corporate books and records disputes, within 10 days
from service of summons and the complaint.318

ANSWER TO A CROSS CLAIM OR COUNTER CLAIM

1. The answer to a cross claim or a counter-claim shall be filed within 10 days from service. 319

2. Note that compulsory counterclaims need not be answered unless it raises issues not covered by the complaint .

2.1 It is required that a compulsory counterclaim or a cross claim existing at the filing of defendants answer must be
included therein but, if it matures / or is acquired after serving of answer, it may with the courts permission be presented
as such in a supplemental pleading. If already existing and not set up through oversight, inadvertence, or excusable
neglect, it may, by leave of court be set up as such by amendment before judgment. 320

REPLY

1. It must be filed within 10 days from service of the pleading responded to. 321

2. Note though that the filing of a reply is optional as if one is not filed, all new matters are deemed controverted. 322

3. The exceptions are pleaded actionable documents and allegations as to usury.

MAY THE TIME TO PLEAD BE EXTENDED

1. Upon motion and on terms as may be just, the Court it may extend or allow it to be filed after the time fixed by the
Rules.323 The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these
Rules.

2. In cases covered by the Rules on Summary Procedure, the period cannot be extended nor shortened.

3. In quo warranto cases, the period may be shortened. 324

4. A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda, or briefs, let the period lapse
without submitting the same or offering an explanation for failure to do so. 325

WHEN A COMPLAINT SHOULD BE FILED

1. A complaint is not a responsive pleading. It is to be filed upon accrual of the cause of action or any time thereafter
but before it is barred by prescription.

RULE 12 BILL OF PARTICULARS

BILL OF PARTICULARS DEFINED


317
Supra, Section 7, Rule 11
318
Section 5, Rule 6 and Section 4, Rules 7, A.M. 01-2-04, SC
319
Supra, Section 4, Rule 11
320
Supra, Sections 8,9, and 10, Rule 11
321
Supra, Section 6, Rule 11
322
Supra, Section 10, Rule 6
323
Supra, Section 11, Rule 11
324
Supra, Section 8, Rule 66
325
Rabanal v Tugade, 383 SCRA 484
1. It is a definitive statement of any matter which is not covered with sufficient definiteness or particularity to enable
him to properly prepare his responsive pleading.326

2. The purpose of which is to make more particular or definite the ultimate facts in a pleading and is not intended to
supply evidentiary matters.

3. It is to be resorted to when the complaint is deficient in details with respect to the factual basis of each and every
item claimed, but such deficiency is not such as to amount to a failure to state a cause of action as the remedy then is to
file a motion to dismiss.327

WHEN SHOULD IT BE FILED

1. Before filing or responding to a pleading or before filing an answer.

2. If pleading is a reply, within 10 days from service thereof

ACTION OF THE COURT

1. Upon filing of the motion that points out the defects complained of, the paragraphs wherein they are contained,
and the details desired.

1.1 It is a litigated motion, thus requires a notice of hearing.

2. The clerk of court must immediately bring it to the attention of the court, which may deny or grant the motion
outright or allow the parties an opportunity to be heard. 328

2.2 If granted, whether in whole or in part, the compliance therewith must be effected within 10 days from notice of
order, unless a different period is fixed by the Court.

3. In compliance, the bill of particulars may be filed either in a separate or in an amended pleading, serving a copy
on the adverse party.329

3.1 Once filed, it becomes part of the pleading for which it is intended. 330

EFFECT OF NON-COMPLIANCE WITH ORDER

1. In case of failure to obey or insufficient compliance, the Court may order the pleading or portions thereof to which
the order was directed to be stricken out or make such order as it deems just. 331 Hence, it may also dismiss for failure of
the plaintiff to obey order of the Court.332

2. The striking out of a complaint by the lower court upon motion of the defendant for failure of the plaintiff to comply
with an order requiring him to submit a bill of particulars as a ground for dismissal is equivalent to an adjudication on the
merits unless otherwise provided by the court.333

WHEN MUST A RESPONSE / ANSWER BE FILED

1. After service of a bill / definitive pleading or notice of denial of the motion for a bill of particulars, the moving party
has the remaining period that he was entitled to at the time of the filing of the motion, which shall not be less then 5 days
in any event.334

326
Supra, Section 1, Rule 12
327
Sabangan v Manila Railroad Company, 28 SCRA 772
328
Supra, Section 2, Rule 12
329
Supra, Section 3, Rule 12
330
Supra, Section 6, Rule 12
331
Supra, Section 4, Rule 6
332
Supra, Section 3, Rule 17
333
Vda. De Quillosa v Salazar, 14 SCRA 656
334
Supra, Section 5, Rule 12
RULE 13 FILING / SERVICE OF PLEADINGS JUDGMENTS / OTHER PAPERS

1. The Rule applies to all pleadings / papers as well as service thereof, except those for which a different mode of
service is prescribed.335

FILING / SERVICE DEFINED

1. Filing is the act of presenting the pleading or other paper to the clerk of court.

2. Service is the act of providing a party with a copy of the pleading / paper.

2.1 If a party is represented by counsel, service is made upon counsel or one of them unless service is ordered to be
made upon the party by the Court. If there is one counsel for several parties, he is entitled to only one copy served by the
opposite side. 336

2.2 Service may also be made on a party with counsel: (a) if counsel cannot be located or changed his given address
(b) when his deposition is to be taken, or is required to answer a written interrogatory or when a request for admission is
made, and (c) if party is ordered to show cause why he should be punished for contempt

MODES OF FILING

1. The modes of filing are (a) Presenting the original copies of pleadings, appearances, motions, notices,
orders, judgments and all other papers to the clerk of court, or (b) By registered mail. 337

1.1 The clerk of court shall if filing be personal, endorse on the pleading, the date and the hour of filing.

1.2 If it by mail, the date appearing on the post office stamp / registry receipt shall be date of the filing / deposit of
court. The envelope shall be attached to the record. It bears stressing that it is the date of mailing, not the date of receipt
of the mail matter, which shall be considered as the date of filing. 338 This has been the practice since mail is considered an
agent of the Government.339This is also known as the Mailbox Rule.

2. The papers that are to be filed or served upon affected parties are judgments, resolutions, order, pleadings
subsequent to the complaint, written motions, notices, appearances, remand, offer of judgment or similar papers. 340

WHAT ARE THE MODES OF SERVICE

1. The general rule is that pleadings, motions, notices, orders, judgments and other papers shall be served
personally or by mail.341

2. If personally served, it may done: (a) by delivering personally a copy to party or his counsel, or (b) leaving it in his
office with a clerk or person having charge thereof, or (3) if no person is found in the office or he has no office, by leaving
a copy between the hours of 8am to 6pm at partys / counsels residence, if known, with a person of sufficient age and
discretion residing therein.342

3. If by mail, by depositing a copy in the post office in a sealed envelope, plainly addressed to the party or counsel, if
known, at his address / office, otherwise, at his residence, if known, postage prepaid and with instructions to the
postmaster to return the mail to sender after 10 days if undelivered.

3.1 If no registry service is available in the locality of the addressee or sender, service may be by ordinary mail. 343

335
Supra, Section 1, Rule 13
336
Supra, Section 2, Rule 13
337
Supra, Section 3, Rule 13
338
Ansel v Aledo, 420 SCRA 645
339
Supra, Mintu v Court of Appeals, 53 SCRA 114
340
Supra, Section 4, Rule 13
341
Supra, Section 5, Rule 13
342
Supra, Section 6, Rule 13
343
Supra, Section 7, Rule 13
4. If mailed by private carrier, the date of actual receipt by the court of such pleading and not date of delivery to the
carrier is deemed the date of filing of that pleading. 344

5. It is required that judgments, final orders or resolutions shall be served personally or by registered mail.

5.1 If a party is summoned by publication, and he has failed to appear, judgments, final orders / resolutions shall also
be served upon him by publication at the expense of the prevailing party. 345

6. If service cannot be made personally or by mail, substituted service may be availed of as long as the office and
place of residence of the party or his counsel is also unknown, service may be made by delivering a copy to the clerk of
court, with proof of failure of both personal service and service by mail. The service is complete at the time of such
delivery.346

WHEN SERVICE IS COMPLETE

1. Service will be deemed complete: (a) Upon actual delivery if undertaken personally (b) Upon expiration of 10 days
after mailing, unless the Court orders otherwise if undertaken by ordinary mail (c) Upon actual receipt by addressee or
after 5 days from the date he received the 1 st notice of the postmaster, whichever date is earlier, if undertaken by
registered mail347 (d) At the time of delivery to the clerk of court, if undertaken by substituted service

WHAT IS THE RULE ON PRIORITY OF SERVICE

1. Whenever practicable, service and filing of pleadings and other papers shall be done personally except, with
papers emanating from the court. A resort to other modes must be accompanied by an explanation why service or filing
was not done personally. If not, it may be cause to consider the paper as not filed. 348

1.1 Where the address of the respondents counsel is 83 kilometers away from the address of petitioners counsel,
such distance makes personal service impracticable, and a written explanation why service was not done personally
might have been superfluous. Liberal construction has been allowed in cases where the injustice to the adverse party is
not commensurate with the degree of thoughtlessness in not complying with the procedure prescribed. 349

WHAT CONSTITUTES PROOF OF FILING

1. Proof of filing is shown by: (a) existence of the pleading or other paper in the records of the case (b) If not in the
record, but is claimed to be: (1) filed personally by the written / stamped acknowledgment of its filing by the Clerk of Court
on a copy, and (2) filed by registered mail by the registry receipt and the affidavit of the person who did the mailing
containing a full statement of: (a) Date and place of depositing in the post office in a sealed envelope addressed to the
Court, with postage prepaid, and (b) Instructions are given to the postmaster to return the mail to sender after 10 days, if
undelivered.350

WHAT CONSTITUTES PROOF OF SERVICE

1. Proof of service is shown by: (a) Written admission of the party served or official return of the server, or affidavit
of the party serving, containing a full statement of the date, place, manner of service if served personally (b) An affidavit of
the person mailing of facts showing compliance with Section 7 of the Rule if served by ordinary mail (c) An affidavit and
registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the
sender, or in lieu thereof, the unclaimed letter together of the sworn / certified copy of the notice given by the postmaster
to the addressee.351

2. If service is by registered mail, proof of service consists of the affidavit of the person mailing and the registry
receipt, both of which must be appended to the motion. Absent one or the other, or both, there is no proof of service. 352

344
Industrial Timber Corporation v NLRC, 233 SCRA 597, Beneco v NLRC, 209 SCRA 55
345
Supra, Section 9, Rule 13
346
Supra, Section 8, Rule 13
347
Supra, Section 10, Rule 13
348
Supra, Section 11, Rule 13
349
Maceda v. De Guzman vda de Macatangay, 481 SCRA 415
350
Supra, Section 12, Rule 13
351
Supra, Section 13, Rule 13
352
Cruz v Court of Appeals, 388 SCRA 72
3. Late filing of the affidavit of service may be considered as substantial compliance with the Rules. 353

4. Failure of a party to comply with the required proof of service may be excused where the motion is not a
contentious motion and therefore, no right of the adverse party would be affected by the admission thereof. 354

NOTICE OF LIS PENDENS

1. Is an announcement to the world that a particular property (real) is in litigation, serving as a warning that one who
acquires the property or an interest therein does at his own risk which is filed with the Office of the Register of Deeds of
the place where the property is located.

1. It shall contain (a) the names of the parties (b) object of the action or defense (c) description of the property. 355

2. It is only from the time of the filing of the notice for record shall a purchaser or encumbrancer of the property
affected thereby, be deemed to have constructive notice of the pendency of the action and only of its pendency against
parties designated by their real names

3. It is available only in an action affecting title or right of possession of real property. Specifically in actions (a) to
recover possession of real estate (b)to quiet title (c) to remove a cloud (d) for partition (e) other proceeding of any
kind in court directly affecting title to the land or the use or occupation thereof or buildings thereon. 356

4. There is no such action called annotation of lis pendens A notice is ordinarily recorded without the courts
intervention. The annotation of a notice is not proper if the action is in personam. For it to be proper, the action must be
one affecting real property.357

WHO MAY AVAIL OF IT

1. The plaintiff or the defendant when affirmative relief is claimed in the answer

WHEN MAY IT BE CANCELLED

1. Upon order of the court when: It is shown that it has for the purpose of molesting the adverse party or it is not
necessary to protect the rights of the party who caused it to be recorded. 358

RULE 14 SUMMONS

SUMMONS DEFINED

1. It is a writ issued sealed and signed by the clerk of court upon filing of a complaint and payment of requisite legal
fees359 issued to and directed to the defendant containing the following: (a) name of the court and of the parties (b) a
direction that the defendant answer within the time fixed by the Rules, and (c) notice that unless defendant answers,
plaintiff will take judgment by default and may be granted the relief prayed for.

1.1 To be attached thereto is a copy of the complaint and the order for the appointment of a guardian ad litem, if
any.360

2. It shall also contain a reminder to the defendant to observe restraint in filing a motion to dismiss and instead
allege the grounds thereof as defenses in the answer. 361

353
Ace Navigation, Inc v Court of Appeals, 338 SCRA 70
354
PEA v Caoibes, Jr., 312 SCRA 767
355
Supra, Section 14, Rule 13
356
Viewmaster Construction Corporation v Maulit, 326 SCRA 821, Alberto v Court of Appeals, 334 SCRA 756
357
AFP Mutual Benefit Assocation v Court of Appeals, 327 SCRA 203
358
Lim v Vera Cruz, 356 SCRA 386
359
Supra, Section 1, Rule 14
360
Supra, Section 2, Rule 14
361
A.M. No. 03-1-09-SC
WHO SERVES SUMMONS

1. The sheriff, his deputy, or other proper Court Officer, or for justifiable reasons by any suitable person authorized
by the court issuing the summons.362

2. An Officer having management of a jail or institution, if a defendant is a prisoner therein is deputized as a special
sheriff for service of summons.363

SIGNIFICANCE OF SUMMONS

1. The significance of summons is that it is the primary means by which a Court is able to acquire jurisdiction over
the person of the defendant and to give notice that an action has been commenced against him. It is the writ by which a
defendant is notified of the action brought against him. 364

2. Jurisdiction cannot be acquired over the person of the defendant even if he knows of the case against him unless
he is validly served with summons365 or the defendant voluntarily appears in the action.

3. Voluntary appearance shall be equivalent to service of summons. The inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. 366

3.1 The rule abandons previous rulings of the Supreme Court that a motion to dismiss on the ground of lack of
jurisdiction over the person be based solely on that ground, otherwise, it is a voluntary appearance. This is so because of
the omnibus motion rule367 that all objections then available be included otherwise they are waived, as the only
exceptions are (a) the Court has no jurisdiction over the subject matter; (b) there is another action pending between the
same parties for the same cause; (c) or, the action is barred by prior judgment or statute of limitations. 368 These defenses
are not barred if not set up.

WHAT ARE THE MODES OF SERVICE

1. Service in person on the defendant by handling a copy thereof to the defendant in person, or if he refuses to
receive and sign for it, by tendering it to him369

2. Substituted service by leaving a copy of the summons at defendants residence with some person of suitable age
and discretion, then residing therein or leaving it at defendants office or regular place of business with some competent
person in charge thereof.370

2.1 The rule presupposes that a relation of confidence exists between the parties with whom the copy is left and the
defendant, and, therefore, assumes that such person will deliver the process to the defendant or in some way give him
notice thereof.

2.2 But, it may only be resorted to, if for justifiable causes, the defendant cannot be served personally within a
reasonable time. The impossibility of service in person must be indicated in the return, otherwise, substituted service is
void. 371

2.3 Within a reasonable time has been interpreted to contemplate a period of time longer than that demarcated by the
word prompt and presupposes a prior attempt at personal service that failed. 372 In a later case373 it was defined as so
362
Supra, Section 3, Rule 14
363
Supra, Section 9, Rule 14
364
Cano-Gutierrez v. Gutierrez, 341 SCRA 670
365
UCPB v Ongpin, 368 SCRA 464
366
Supra, Section 20, Rules 14
367
Supra, Section 8, Rule 15
368
Supra, Section 1, Rule 9
369
Supra, Section 6, Rule 14
370
Supra, Section 7, Rule 14
371
Hamilton v Rey, GR 139283, November 15, 2000
372
Laus v Court of Appeals, 219 SCRA 688
373
Manotoc v Court of Appeals, GR No. 130974, August 16, 2006
much time as necessary under the circumstances for a reasonably prudent and diligent man to do, conveniently, what the
contract or duty requires to be done. One month from issuance of summons can be considered as reasonable. Several
attempts (at least 3) at personal service must be made, preferably on separate dates. In addition the sheriff must cite why
efforts were unsuccessful.

2.4 Service of summons on the defendant shall be by personal service first and only when the defendant cannot
promptly be served in person will substituted service be availed of. 374

3. Service by publication with leave of court, obtained by the filing of a motion in writing, supported by an affidavit of
the plaintiff or some person in his behalf, setting forth the ground that allows resort to it. 375

3.1 The grounds that allow service of summons by publication are: (a) Identity of the defendant is unknown or
whereabouts of the defendant is unknown and cannot be ascertained by diligent inquiry 376 (b) Defendant does not
reside and is not found in the Philippines but the suit can be maintained against him because it is in rem or quasi in rem377
(c) Defendant is a Philippine resident but is temporarily out of the country. 378 Note the cross reference with Section 15 and
the fact that substituted service may also be availed of.

4. Extra-Territorial Service is allowed in suits against a non-resident defendant not found in the Philippines can be
made by:

4.1 (a) Personal service (b) Publication in a newspaper of general circulation in such places and for such time as the
court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last
known address (c) Or any other manner the court may deem sufficient. 379 Resort to registered mail has been deemed
appropriate.380

4.2 Extra-Territorial Service can be availed of when: (a) Action affects the personal status of the plaintiff (b)
Action relates to, or the subject of which is property within the Philippines in which the defendant has or claims a lien or
interest, actual or contingent (c) When the relief demanded, in whole or in part consists of excluding the defendant from
any interest in property located in the Philippines (d) When the defendants property has been attached in the
Philippines.381

4.3 Resort to extra-territorial service requires leave of court.

UPON WHOM MAY SERVICE OF SUMMONS BE MADE

1. Service of summons is to be made upon the defendant.

1.1 If the defendant is: (a) Entity without juridical personality it is to be served upon any one of them or upon person
in charge of the office or place of business maintained in such name BUT such shall not bind individually any person
whose connection with the entity has, upon due notice, been severed before the action was brought 382 (b) A minor, insane
or otherwise incompetent it is to be served upon him personally and his guardian / or guardian ad litem. In addition, in
case of a minor, service may also be made on his father or mother 383 (c) Republic of the Philippines it is to be served on
the Solicitor General 384 (d) Province, City, Municipality or similar public corporation it is to be served on the executive
head, or on such other officers as the law or court may direct 385 (e) Domestic Private Juridical Entity is to be served on the
president, managing partner, general manager, corporate secretary, treasurer or in house counsel. 386 Note the
abandonment of doctrine of substantial compliance. 387 Basic is the rule that strict compliance with the mode of service is
necessary to confer jurisdiction of the court over a corporation. 388 (f) Foreign Private Juridical Entity is to be served upon
374
Samartino v Raon, 383 SCRA 664
375
Supra, Section 17, Rule 14
376
Supra, Section 14, Rule 14
377
Supra, Section 15, Rule 14
378
Supra, Section 16, Rule 14
379
Supra, Section 15, Rule 14, Valmonte v Court of Appeals, 252 SCRA 92
380
Cariaga v Malaya, 143 SCRA 441
381
Supra, Section 15, Rule 14
382
Supra, Section 8, Rule 14
383
Supra, Section 10, Rule 14
384
Supra, Section 13, Rule 14
385
Supra, Section 13, Rule 14
386
Supra, Section 11, Rule 14
387
Mason v Court of Appeals, 413 SCRA 303, E.B. Villarosa and Partner Co, Ltd v. Benito, 312 SCRA 65
388
Santiago Sr. vs. Bank of the Philippine Islands, 566 SCRA 435
its resident agent. If there be no resident agent, the Government official designated by law such as the SEC, Insurance
Commissioner, Superintendent of Banks. If none, any of its officers or agents in the Philippines. Note the required
sequence of service. In addition, if a lawyer enters an appearance without proof of having been engaged by the foreign
corporation, no voluntary appearance can be inferred. 389

AFTER SERVICE IS COMPLETE, WHAT MUST SERVER DO

1. Within 5 days after completion, a copy of the return must be served, personally or by registered mail, to plaintiffs
counsel, and he shall return the summons to the clerk of court who issued it together with proof of service. 390

2. Proof of service is the writing executed by the server setting forth (1) the manner, place and date of service; (2)
the paper/s which have been served with the process and name of the person who received the same. It is required to be
sworn to if made by a person other than the sheriff or his deputy. 391

2.1 If summons is by publication, proof of service consists of: (a) Affidavit of printer, foreman, principal clerk editor,
business manager or advertising manager, copy of the publication attached, and (b) Affidavit showing the deposit of a
copy of the summons and order for publication in the post office, postage prepaid directed to the defendant by registered
mail at / to his last known address.392

RULE 15 MOTIONS

DEFINED

1. A motion is an application for relief other than a pleading. 393

REQUISITES OF A VALID MOTION

1. Shall be in writing except when made in open court or in the course of the hearing or trial. 394 Example: a motion
for continuance made in presence of adverse party.

2. It must state the relief sought to be obtained and the grounds on which it is based, and if required by the rules or
necessary to prove facts alleged therein, it shall be supported by affidavits or other papers. 395

3. It shall be set for hearing by the applicant except when the motion can be acted upon by the court without
prejudicing the rights of the adverse party.396 Example: Motion for extension of time to plead

4. It must contain a notice of hearing addressed to all parties concerned, specifying the time, date of the hearing
which must not be later than 10 days after the filing thereof. 397

4.1 A motion without a notice of hearing is pro-forma or a mere scrap of paper. It presents no question which the court
should decide. The rationale behind the rule is plain: unless the movant sets the time and place of hearing, the court will
be unable to determine whether the adverse party agrees or objects to the motion, and if he objects, to hear him on his
objection. The objective is to avoid a capricious change of mind in order to provide due process to both parties and ensure
impartiality.398

4.2 The absence of the notice of hearing will not toll the running of the reglementary period for appeal. 399 It is
considered a pro-forma motion.400

389
Litton Mills v Court of Appeals, 256 SCRA 696
390
Supra, Section 4, Rule 14
391
Supra, Section 18, Rule 14
392
Supra, Section 19, Rule 14
393
Supra, Section 1, Rule 15,
394
Supra, Section 2, Rule 15
395
Supra, Section 3, Rule 15
396
Supra, Section 4, Rule 15
397
Supra, Section 5, Rule 15
398
Fajardo v Court of Appeals, 354 SCRA 736
399
Cledera v Sarmiento, 39 SCRA 553
400
Jehan Shipping Corporation v NFA, GR No. 159750, December 14, 2005
5. It must be served, together with the notice of hearing on the adverse party at least 3 days before the date of
hearing unless the court for good reason sets the hearing earlier. 401

5.1 The purpose of the three day notice rule is to avoid surprise upon the opposite party and to give him time to study
and meet the arguments of the motion.402

6. There must be proof of service of every written motion set for hearing otherwise it shall not be acted upon. 403

6.1 As a general rule, proof of service is mandatory.404

6.2 A judge can act ex-parte on a motion where the rights of the adverse party are not affected. 405

WHEN SHOULD MOTIONS BE SET

1. All motions must be scheduled for hearing on Friday afternoons or if it be a non-working holiday, in the afternoon
of the next working day unless the motion requires immediate action.406This day is Motion Day.

WHAT SHOULD A MOTION CONTAIN

1. A motion attacking a pleading referring to a motion to dismiss, or attacking an order, judgment, or proceedings
referring to a motion for reconsideration shall include all objections then available, and all objections not so included are
deemed waived except the defenses of Lack of Jurisdiction, Litis Pendentia, Res Judicata, Statute of Limitations. 407

1.1 This is the Omnibus Motion Rule.408

1.2 The purpose of the Rule is to obviate multiplicity of motions as well as discourage dilatory pleadings. 409 Litigants
should not be allowed to reiterate identical motions speculating on the possible change of opinion of the court or judges
thereof.410

1.3 It requires the movant to raise all available exceptions in a single opportunity to avoid multiple piecemeal
objections. But to apply the statutory norm, the objections must be available to the party at the time the motion was filed.411

2. If motion is one for leave to file a pleading or a motion, it shall be accompanied by the pleading or motion sought
to be admitted.412 Example: Motion for leave to admit amended complaint.

3. As to form, the Rules applicable to pleadings shall apply to written motions as far as it concerns captions,
designation, signature and other matters.413

RULE 16 MOTION TO DISMISS

WHEN AND HOW IT CAN BE FILED

1. By Motion, within the time for the filing of an answer but before the filing of an answer.

401
Supra, Section 4, Rule 15
402
Remonte v. Bonto, 16 SCRA 257
403
Supra, Section 6, Rule 15
404
Cruz v Court of Appeals, 388 SCRA 72
405
Sumadchat v Court of Appeals, 111 SCRA 488
406
Supra, Section 7, Rule 15
407
Supra, Section 1, Rule 9
408
Supra, Section 8, Rule 15
409
Dacanay v Alvendia, 30 SCRA 31
410
Miranda v Court of Appeals, 71 SCRA 295
411
PH Credit Corporation v Court of Appeals, 370 SCRA 155
412
Supra, Section 9, Rule 15
413
Supra, Section 10, Rule 15
1.1 The rule is not absolute as a motion to dismiss may still be filed after answer on the ground of (a) lack of
jurisdiction (b) litis pendentia (c) lack of a cause of action, and (d) discovery during trial of evidence that would constitute
ground for dismissal.414

2. As an affirmative defense in the answer, and in the discretion of the court, a preliminary hearing may be had as if
a motion to dismiss has been filed. If the action is dismissed, it shall be without prejudice to the prosecution in the same /
separate action of a counter-claim pleaded in the answer. 415

WHAT GROUNDS ARE AVAILABLE

1. A motion to dismiss may be made on any of the following grounds: 416

1. The court has no jurisdiction over the person of the defending party

2. The court has no jurisdiction over the subject matter of the claims

3. Venue is improperly laid

3.1 An objection to improper venue must be made before a responsive pleading is filed, otherwise it is deemed
waived.417

4. Plaintiff has no legal capacity to sue

4.1 This means that he is not in exercise of his civil rights, or does not have the necessary qualification to appear or
does not have the character / representation he claims as opposed to the lack of personality to sue which means that he
is not the real party in interest, and the basis for dismissal then is no cause of action or failure to state a cause of action.418

5. There is another action pending between the same parties for the same cause

5.1 This is known as litis pendentia

5.2 The requisites for its application are: (a) Identity of the parties, or at least such as representing the same interests
in both actions (b) Identity of rights asserted and reliefs prayed for, the relief being founded on the same facts. Identity in
both cases, is such that judgment in the pending case would, regardless of which party is successful amount to res
judicata in the other.419

5.3 As between the first and second or latter actions, apply the priority in time rule, but the rule must yield to the
more appropriate action rule. Example: An action for declaratory relief to interpret a lease contract was filed before an
ejectment case, where the Supreme Court held that the ejectment case is the more appropriate action. 420

5.4 There is a 3rd test: Interest of Justice Rule which is a determination of which court would be in a better position to
serve the interest of justice considering : (a) nature of the controversy; (b) comparative accessibility of the court to the
parties; (c) other similar factors.421

5.5 Three relevant conditions to determine which action should be dismissed on the ground of litis pendentia : (a) date
of filing, with preference generally given to the first action filed to be retained (b) whether the action sought to be
dismissed was filed merely to preempt the later action or to anticipate its filing and lay the basis for its dismissal, and (c)
whether the action is the appropriate vehicle for litigating the issues between the parties. 422

414
Panganiban v Pilipinas Shell Petroleum Corporation, 395 SCRA 624
415
Supra, Section 6, Rule 16
416
Supra, Section 1, Rule 16
417
Fernandez v ICB, 316 SCRA 326
418
Columbia Pictures, Inc. v Court of Appeals, 261 SCRA 144, Travelwide Assn of the Phil. v. Court of Appeals, 199 SCRA 205
419
Victronics Computer v RTC, 217 SCRA 517
420
Teodoro v Mirasol, 99 Phil 150
421
Roa-Magsaysay v Magsaysay, 98 SCRA 592
422
UCPB vs. Beluso, G.R. No. 159912, August 17, 2007
5.6 Where the litigant is engaged in forum shopping, the other party may ask for the summary dismissal of the two
cases. The well entrenched rule is that a party cannot, by varying the form of the action or adopting a different method of
presenting his case, escape the operation of the principle that one and the same cause of action shall not be twice
litigated.423

6. The cause of action is barred by a prior judgment or by the statute of limitations

6.1 This is known as Res Judicata, whose requisites are: (a) The existence of a former judgment that must be final (b)
Rendered by a court having jurisdiction over the subject matter and the parties (c) It must be a judgment or order on the
merits (d) There must be between 1st / 2nd action, identity of parties / subject matter / causes of action.

6.2 The doctrine is founded on 2 grounds: (a) Public policy and necessity which makes it in the interest of the
state that there should be an end to litigation (b) Litigant should be spared the hardship of being vexed twice for the same
cause

6.3 Note that there can be no res judicata in support cases as future support cannot be compromised. 424

6.4 A dismissal of a complaint on the ground that the plaintiff failed to prosecute his action because of failure to cause
service of summons by publication within a reasonable time does not constitute res judicata as the court cannot be said to
have acquired jurisdiction over the person of the defendant. 425

6.5 A previous final judgment denying a petition for declaration of nullity on the ground of psychological incapacity
shall bar a subsequent petition for annulment on the ground of lack of a marriage license as the cause of action is the
same, although the ground on which the action is predicated has been varied. A party cannot avoid the application of res
judicata by varying the form of the action or adopting a different method of presenting his case. 426

6.6 Statute of Limitations or prescription is a statute establishing a period of time from the accrual of a cause of action
within which a right of action must be exercised. If the action is not brought within the period, then it is barred.

7. The pleading asserting the claim states no cause of action.

7.1 The Test of the Sufficiency of a Cause of Action is: Whether accepting the veracity of the facts alleged in the
complaint, the Court can render a valid judgment upon the same in accordance with the prayer in complaint.

7.2 No presentation of evidence is required as there is a hypothetical admission of the facts alleged in the complaint.
The court can properly dismiss without a hearing by taking into consideration the discussion in the motion and the
opposition thereto.427

7.3 Distinguishing a failure to state a cause of action/no cause of action from lack of a cause of action 428: (a) The
former refers to insufficiency of allegations, while the latter refers to insufficiency of factual basis (b) The former is raised
only in a in a motion to dismiss before responding to a complaint, while the latter can be raised at any time (c) The former
allows dismissal to be had at the early stages of the action, while the latter allows dismissal after questions of fact have
been resolved after evidence is presented or stipulations / admissions are had.

8. Claim or demand set forth in plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished

9. Claim on which the action is founded is unenforceable under the provisions of the statute of frauds.

9.1 Statute of Frauds is statute/s that deals with the enforcement and requirements of agreements in particular
circumstances. It is descriptive of statutes which require certain classes of contracts to be in writing. 429

10. A condition precedent for filing the claim has not been complied with

423
PCIB vs. Court of Appeals, G.R. No. 114951, July 18, 2003
424
De Asis v Court of Appeals, 303 SCRA 176
425
Gardose vs. Tarroza, G.R. No. 130570, May 19, 1998
426
Maillon vs. Alcantara, G.R. No. 141528, October 31, 2006
427
Nadela v. City of Cebu, 411 SCRA 315
428
Supra, Rule 33
429
Litonjua v Fernandez, 427 SCRA 478
10.1 In certain cases, referral of a case to the Lupon is a condition precedent for filing a complaint in court. It is not
jurisdictional.430 It may be waived if not raised seasonably in a motion to dismiss. 431

RESOLUTION OF A MOTION TO DISMISS

1. It shall be heard432, at the hearing, the parties shall submit arguments on the questions of law and evidence on the
questions of law and fact involved except those not available at that time. Should the case eventually go to trial, the
evidence during the hearings shall automatically be part of the evidence of the party presenting the same.

2. After the hearing, Court shall either dismiss the action, deny the motion or order amendment of the pleading,
stating clearly and distinctly the reasons for the action taken. 433

2.1 It is now mandated that the Court cannot defer resolution of the motion based on the reason that the ground relied
upon does not appear to be indubitable or sure

3. If the motion is denied, the movant shall file an answer within the balance of the period prescribed by Rule 11,
which he was entitled to at the time of serving the motion, but not less than 5 days in any event, counted from notice of
denial.

3.1 If ordered amended, an answer is to be filed within period prescribed by Rule 11, counted from service of
amended pleading, unless the court provides a longer period. Note that it is 15 days as no answer has of yet been filed.
Hence the amendment is one that is a matter of right. 434

3.2 The effect of dismissal is that subject to the right to appeal, an order granting a motion to dismiss on the grounds
of (a) prior judgment or statute of limitations (b) claim / demand has been paid, waived abandoned or otherwise
extinguished, or (c) is unenforceable under the statute of frauds shall bar a re-filing of the same.435

RULE 17 - DISMISSAL OF ACTIONS

PLAINTIFF DISMISSAL OF HIS OWN COMPLAINT

1. A plaintiff may cause the dismissal of his complaint by:

1.1 Filing of a notice of dismissal at anytime before service of an answer or motion for summary judgment. Once filed,
the court shall issue an order confirming the dismissal, which is without prejudice, unless stated otherwise but, such
dismissal will operate as adjudication on the merits when filed by a plaintiff who has once dismissed in a competent court,
his action based on or including the same claim. 436 This is known as the 2 dismissal rule.

1.2 The action of the court is to confirm the dismissal. Hence, upon filing of the notice, the complaint is considered as
dismissed.437

2. Or, by filing a motion to dismiss if an answer or a motion for summary judgment has been served but such will not
result in dismissal without the approval of the court and upon terms and conditions as the court deems proper.

2.1 If a counterclaim has been pleaded before service of motion to dismiss the dismissal is limited to the complaint.
It shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within
15 days from notice of the motion he manifests a preference to have it resolved in the same action.

2.2 Unless specified, a dismissal is without prejudice.

430
Junson v martinez, 405 SCRA 390
431
Banares v Balising, 328 SCRA 36
432
Supra, Section 2, Rule 16
433
Supra, Section 3, Rule 16
434
Supra, Section 4, Rule 16
435
Supra, Section 5, Rule 16
436
Supra, Section 1, Rule 17
437
Bar, 1989
2.2 Note also that a class suit shall not be dismissed or compromised without the approval of the Court. 438

COURT DISMISSAL ON ITS MOTION OR THAT OF DEFENDANT

1. The court can motu propio or upon motion of the defendant dismiss a complaint when: (a)If, for no justifiable
reason, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint (b) If, for no
justifiable reason, plaintiff fails to prosecute his action for an unreasonable length of time (c) If, for no justifiable reason,
plaintiff fails to comply with Rules of Court or any order of the Court.

1.1 A dismissal shall have the effect of an adjudication on the merits, unless otherwise declared by the court.

1.2 Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in the same or a
separate action and shall have the effect of an adjudication on the merits unless otherwise declared by the court. 439

2. The remedies of a plaintiff are: (a) Appeal the dismissal as it is a final order, or (b) If without prejudice, refile the
action as an order dismissing without prejudice is not subject to appeal.

3. At the pre-trial, the court ordered the parties to submit a compromise agreement within a ten day period. The
parties were unable to submit the compromise agreement, thus leading to a dismissal. There is nothing in the rules that
imposes a sanction for failure to submit a compromise agreement. 440

APPLICABILITY OF THE RULE

1. The Rule also applies to dismissal by the defendant of his counterclaims cross-claims or 3rd party claims.

1.1 Voluntary dismissal by the claimant by notice as under Section 1 of the Rule shall be made before a responsive
pleading, motion for summary judgment is served, or if there be none, before introduction of evidence at the trial or
hearing.441

RULE 18 PRE-TRIAL

WHAT IS PRE-TRIAL

1. It is a procedural devise intended to clarify and limit the basic issues between the parties. Its main objective is to
simplify, abbreviate and expedite trial, or otherwise dispense with it. 442

2. It is a conference or hearing at which the court, with the cooperation of the parties, seeks to determine definitively
what precisely are the factual issues to be tried and how each party intends to establish his position on each disputed
factual issue.

WHEN CONDUCTED

1. After the last pleading has been served and filed. It shall be the duty of the plaintiff to move ex-parte that the case
be set for pre-trial.443

1.1 SC Adm. Circular 3-99 dated January 15, 1999 defined promptly as 5 days.

1.2 SC Administrative Matter No. 03-1-09, SC, Section A (1.2) Should the plaintiff fail to move ex-parte to set case for
pre-trial, the branch clerk of court should issue a notice of pre-trial.

1.3 The same circular also requires that the presiding judge direct the parties to mediation, if possible. If it fails, it will
schedule the pre-trial but it may also schedule a preliminary conference before the branch clerk of court to assist them in
(a) reaching a settlement (b) pre-marking of documents and exhibits (c) consider other matters that will aid in the prompt
disposition of the case.
438
Supra, Section 2, Rule 17
439
Supra, Section 3, Rule 17
440
Ruiz, Jr v CA, 212 SCRA 660
441
Supra, Section 4, Rule 17
442
Interlining v Philippine Trust Company, 378 SCRA 521
443
Supra, Section 1, Rule 18
1.4 The judge is also directed to consider assisting the parties in effecting a settlement given the evidence of the
parties.

2. The last pleading is the answer to the original complaint, cross claim, or, third party complaint and the reply.

NATURE AND PURPOSE

1. Pre-trial is by nature mandatory and the purpose for its conduct is to take up the following matters: 444

1.1 Possibility of amicable settlement / or submission to alternative modes of dispute resolution. The alternative
modes are: (a) arbitration (b) mediation (c) conciliation (d) early neutral evaluation (e) mini-trial, or (f) any combination of
the foregoing.445

1.2 Simplification of the issues

1.3 Necessity / desirability of amendment to the pleadings

1.4 Possibility of obtaining stipulations or admissions of fact and of documents to avoid unnecessary proof

1.5 Limitation of number of witnesses

1.6 Advisability of a preliminary reference of issues to a commissioner

1.7 Propriety of judgment on the pleadings, summary judgment, or dismissing the action if a valid ground therefor be
found to exist. Hence, a motion for judgment on the pleadings or summary judgment must be filed as in a pre-trial the
court merely determines its propriety.

1.8 Advisability of suspending the proceedings

1.9 Such other matters as may aid in the prompt disposition of the action

UPON WHOM NOTICE OF PRE-TRIAL IS TO BE SERVED

1. It shall be served on counsel, or party if not represented by counsel.

1.1 Counsel is charged with the duty to notify the party. 446

2. Notice is so important that it would be grave abuse of discretion for the court to allow plaintiff to present his
evidence ex parte for failure of the defendant to appear before the pre-trial who did not receive through counsel a notice of
pre-trial.

2.1 Accordingly, there is no legal basis to consider a party notified of the pre-trial and to consider that there is no
longer any need to send a notice because it was counsel who suggested the date of pre-trial. 447

WHOSE PRESENCE IS REQUIRED AT PRE-TRIAL

1. The parties and counsel are required to be present during the pre-trial. A party may be excused if: (a) A valid
cause is shown therefore (b)A representative shall appear duly authorized in writing to do the following: (1) enter into
amicable settlement; (2) submit to alternative modes of dispute resolution; (3) enter into stipulations / admissions of fact /
documents.448

EFFECT OF FAILURE TO APPEAR


444
Supra, Section 2, Rule 18
445
RA 9285, Alternative Dispute Resolution Act of 2004
446
Supra, Section 3, Rule 18
447
Agulto v Tecson, 476 SCRA 395
448
Supra, Section 4, Rule 18
1. If plaintiff fails to appear despite due notice, he may be declared non-suited and the complaint is dismissed. The
dismissal shall be with prejudice, unless otherwise ordered by the court.

1.1 His remedy is to appeal order of dismissal because it is a final resolution. If dismissed without prejudice, he can
refile the complaint

2. If defendant fails to appear despite due notice, plaintiff is allowed to present his evidence ex-parte and the court
may render judgment on the basis thereof. 449

3. What is penalized is the failure to appear of either the plaintiff or the defendant, and not their respective
counsel.450

4. As a rule, there can be no second pre-trial unless both parties consent. 451

WHAT MUST BE FILED BEFORE PRE-TRIAL

1. A pre-trial brief must be filed and served on the adverse party at least 3 days before the pre-trial containing: 452

1.1 Statement of willingness to enter into an amicable settlement, the desired terms or to submit to alternative modes
of dispute resolution

1.2 Summary of admitted facts / proposed stipulation of facts

1.3 Issues to be tried or resolved

1.4 Number of witnesses / names, abstract of testimonies, approximate number of hours that will be required for
presentation of their respective evidence

1.5 Copies of all documents intended to be presented which statement of the purposes of their offer

1.6 Manifestation of their having availed of or their intention to avail of discovery procedure, or need for referral of any
issues to commissioners

1.7 Applicable law / jurisprudence

1.8 Available trial dates of counsel for complete presentation of evidence which must be within a period 3 months
from the first day of trial.453

2. Note that the failure to file a brief shall have the same effect as failure to appear.

3. Neither can the court conduct a pre-trial without the parties filing their pre-trial briefs. 454

PRE-TRIAL ORDER

1. Proceedings shall be recorded. Upon termination, court shall issue an order which shall recite in detail: (a) matters
taken up (b) action taken thereon (c) amendments allowed to the pleadings (d) agreements / admissions made by the
parties as to any of the matters taken which shall be binding and conclusive upon the parties 455 (e) explicitly defining and
limiting the issues to be tried.

2. Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are properly
raised. Thus, to obviate the element of surprise, parties are expected to disclose at a pre-trial conference all issues of law

449
Supra, Section 5, Rule 18
450
Paredes v. Verano
451
Young v Court of Appeals, 204 SCRA 584
452
Supra, Section 6, Rule 18
453
Section 6, SC Adm. Circular 3-99, January 15, 1999
454
Vera vs. Rigor, et al. G.R. No. 147377, August 10, 2007
455
Heirs of Conahap v Regana, 458 SCRA 741
and fact which they intend to raise at the trial, except such as may involve privileged or impeaching matters. The
determination of issues at a pretrial conference bars the consideration of other questions on appeal. 456

2.1 The object of a pre-trial order is to control the subsequent course of the action as trial shall be limited to the issues
stated in the pre-trial order,457, unless modified to prevent manifest injustice. 458

2.2. Notwithstanding, courts are not required to resolve all issues raised in pleading unless necessary for the
resolution of the case.459

RULE 19 INTERVENTION

WHO MAY INTERVENE

1. A person who has a (a) legal interest in the matter in litigation (b) has legal
interest in the success of either of the parties (c) has an interest against both or (d) is so situated as to be adversely
affected by a distribution or other disposition of property in the custody of the court or an officer thereof. 460

1.1 Examples are (a)an action for payment of money, where personal property of the defendant is attached, a 3 rd
person claiming the attached property can intervene (b) action by alleged owners of the land sought to be foreclosed.

1.2 The interest which entitles a person to intervene in a suit must be in the matter in litigation and of such direct
and/or immediate character that intervenor will either gain or lose by direct legal operation and effect of judgment. 461

2. Intervention does not lie for a transferee pendente lite. 462

HOW AND WHEN CAN A PERSON INTERVENE

1. Filing of a motion for leave of court to intervene, attaching thereto a copy of the pleading in intervention, which is
then served on the original parties at any time before rendition of judgment by the trial court. 463

1.1 The court may refuse leave when (a) It will unduly delay or prejudice the adjudication of the rights of the original
parties. Example: Delay or laches in bringing intervention, or (b) Intervenors rights may be fully protected in a separate
proceeding. Example: Attachment of real property subject of a mortgage

2. The pleadings in intervention are (a) Complaint in Intervention, if he asserts a claim against either or all of the
original parties, or (b) Answer in Intervention, if he unites with the defending party in resisting the claim of the plaintiff. 464

3. If granted, a complaint in intervention is to be replied to within 15 days from notice of the order admitting the same
unless a different period is fixed by the court.

4. No intervention is allowed in a land registration case as the remedy is to file an opposition.

4.1 Neither is it allowed in cases covered by the Rules on Summary Procedure.

5. Intervention is merely collateral or accessory or ancillary to the principal action and not an independent
proceeding. Hence, with the final dismissal of the original action, the complaint in intervention can no longer be acted
upon.465

456
Son vs. Son, 251 SCRA 556; PPA vs. City of Iloilo, 406 SCRA 88
457
Supra, Section 5, Rule 30
458
Supra, Section 7, Rule 18
459
IBAA vs. IAC, 167 SCRA 450
460
Supra, Section 1, Rule 19
461
Roxas v Dinglasan, 28 SCRA 430
462
Supra, Section 19, Rule 3
463
Supra, Section 2, Rule 19
464
Supra, Section 3, Rule 19
465
Barangay Matictic v Elbinias, 148 SCRA 83
6. An order denying a motion for intervention is appealable. 466

RULE 20 CALENDAR OF CASES

MAINTENANCE OF THE COURT CALENDAR

1. The clerk of court, under the direct supervision of a judge, shall keep a calendar for (a) pre-trial (b) trial (c) trials
that were adjourned or postponed (d) those with motions set for hearing.

2. In fixing the calendar, preference is given to habeas corpus, election cases, special civil actions and those
required by law.467

ASSIGNMENT OF CASES

1. The assignment of cases shall always by raffle done in open session of which adequate notice shall be given to
afford interested parties the opportunity to be present. 468 The purpose is to obviate public suspicion regarding assignment
of cases to predetermined judges.469

RULE 21 SUBPOENA

WHAT IS A SUBPOENA

1. A process directed to a person requiring him to attend and testify at the hearing or trial of an action, or at any
investigation conducted by competent authority, or the taking of his deposition

KINDS OF SUBPOENA

1. The kinds of subpoena are: (a) Subpoena Ad Testificandum if it directs and requires a person to attend and testify,
or (b) Duces Tecum if it requires him to bring books/documents/or other things under his control. 470

BY WHOM ISSUED

1. A subpoena is issued by (a) The court before whom the witness is required to attend (b) The court where
deposition is to be taken (c) Officer or body authorized by law to do so in connection with investigations that it may
conduct (d) Any justice of the Supreme Court/Court of Appeals in any case or investigation pending within the
Philippines471

1.1 A request by a party for the issuance of a subpoena does not require notice to other parties to the action. 472

2. In taking depositions, the clerk of court shall not issue a subpoena duces tecum without a court order. 473

3. Absent any proceeding, suit or action, commenced or pending before a court, a subpoena may not issue. 474

WHEN IS A WITNESS NOT BOUND BY A SUBPOENA

1. Witness resides more than 100 kilometers from his residence to the place where he is to testify by the ordinary
course of travel.475 This is also called the viatory right of the witness or the right not to be compelled to testify in a civil

466
Foster-Gallego v Galang, 435 SCRA 275
467
Supra, Section 1, Rule 20
468
Supra, Section 2, Rule 20
469
Ang v Bello, 163 SCRA 358
470
Supra, Section 1, Rule 21
471
Supra, Section 2, Rule 21
472
Adorio v Bersamin, 273 SCRA 217
473
Supra, Section 5, Rule 21
474
Collado v Bravo, 356 SCRA 411
475
Supra, Section 10, Rule 21
case if he lives more than 100 kilometers from his residence to the place where he is to testify by ordinary course of
travel.

1.1 If the viatory right is invoked, a witness can still be compelled to testify by the taking of his deposition in a place
within 100 kilometers from where he resides, observing the following steps: (a) Party desiring to take deposition shall give
reasonable notice in writing to every other party in the action stating the time, place, name and address of the person
whose deposition is to be taken. There should be proof of service of the notice (b) Proof of service of notice to take
deposition shall be presented to the clerk of court of the place where deposition is to be taken (c) On the basis of such
proof of service, the clerk upon authority and under seal of the court, shall issue the subpoena but a subpoena duces
tecum cannot be issued without an order of the Court (d) Subpoena is to be served on witness whose deposition is to be
taken.476

2. Witness is a detention prisoner, if no permission of the court in which his case is pending is obtained or if the
witness is a prisoner sentenced to death, reclusion perpetua or life imprisonment and is confined in a penal institution, if
authority of the Supreme Court to bring out the prisoner has not been obtained. The court should examine and study the
application properly to determine if it is being made for a valid purpose. 477

FORM AND CONTENTS OF SUBPOENA

1. A subpoena must contain the following: (a) Name of the court (b) Title of action/investigation and is to be directed
to the person whose attendance is required. If duces tecum, in addition, it must contain a reasonable description of the
books, documents, things demanded which is must appear to the Court to be prima facie relevant.478

WHAT ARE THE GROUNDS TO QUASH A SUBPOENA

1. If duces tecum, it may be quashed on the following grounds: (a) It is unreasonable and oppressive (b)
Relevancy of the books, documents or things do not appear (c) Person in whose behalf subpoena is issued fails
to advance the reasonable costs of the production thereof (d) The witness fees and kilometrage allowed by the rules were
not tendered when subpoena was served. Under A.M. No. 04-2-04-SC, witness fees shall be PHP 200.00 a day inclusive
of all expenses

2. If ad testificandum, it may be quashed on the following grounds: (a) Witness is not bound by the subpoena (b)
Witness fees and kilometrage allowed by rules were not tendered when the subpoena was served. 479

HOW IS A SUBPOENA SERVED

1. In the same manner as personal or substituted service of summons, original is to be exhibited and delivered to
person on whom it is served tendering the fees for one day attendance at the kilometrage allowed by Rules except if
subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof. Tender must be
made so as to allow the witness a reasonable time for preparation or travel to the place of attendance. 480

1. If duces tecum, the cost of production of books, papers or things must also be tendered.

2. Under A.M. No. 04-2-04-SC, the fee for service of summons is PHP 100.00 per witness.

CAN A PERSON BE COMPELLED TO APPEAR AND TESTIFY WITHOUT A SUBPOENA

1. Yes, when he is present in court, in which event it is as if he were in attendance upon subpoena issued by the
Court.481

WHAT ARE THE CONSEQUENCES OF DISOBEDIENCE TO A SUBPOENA

1. The consequences of disobedience are: (a) He may be arrested and brought before the Court where his
attendance is required, the cost of warrant and seizure shall be paid by the witness if the Court finds disobedience to be

476
Supra, Section 5, Rule 21
477
Supra, Section 2, Rule 21
478
Supra, Section 3, Rule 21
479
Supra, Section 4, Rule 21
480
Supra, Section 6, Rule 21
481
Supra, Section 7, Rule 21
willful and without just excuse. 482 (b) Citation in contempt by the court from which the subpoena is issued. It not issued by
a Court, then in accordance with the applicable rule / law. 483

RULE 22 COMPUTATION OF TIME

HOW COMPUTED

1. The day of the act / event from which the designated period of time begins to run is excluded and date of
performance included.

2. If the last day falls on a Saturday, Sunday or legal holiday in the place where the Court sits, the time shall not run
until the next working day.484

2.1 Should a party desire to file any pleading, even a motion for extension of time to file a pleading, and the last day
falls on a Saturday, Sunday or a legal holiday, he may do so on the next working day. In case the motion for extension is
granted, the due date for the extended period shall be counted from the original due date, not from the next working day
on which the motion for extension was filed.485

EFFECT OF INTERUPTIONS

1. Allowable period after interruption shall start to run on the day after, notice of the cessation of the cause thereof.
The day of the act that caused cessation shall be excluded in the computation of the period.

2. Rule on computation of time dies not apply to prescription of offenses or causes of action. Hence, if the last day
falls on a Saturday, Sunday or legal holiday, it prescribes on the said date.

RULES 23 TO 29 MODES OF DISCOVERY

WHAT IS DISCOVERY

1. The methods used by the parties to a civil action to obtain information held by the other party that is relevant to
the action.

PURPOSES OF DISCOVERY

1. The purposes of resort to discovery are: (a) It is a device to narrow down / clarify the basic issues between the
parties (b) It is a device to ascertain the facts relevant to the issues.

1.1 Relevancy is determined by its logical tendency to prove or disprove a fact or to make the fact more or less
probable.

WHAT ARE THE MODES OF DISCOVERY

482
Supra, Section 8, Rule 21
483
Supra, Section 9, Rule 21
484
Supra, Section 1, Rule 22
485
Dela Cruz vs. Maersk Filipinas Crewing, Inc., 551 SCRA 284, AM No. 00-2-14-SC
1. The modes of discovery (a) Deposition pending action 486 (b) Deposition before action or pending appeal 487(c)
Interrogatories to parties488 (d) Request for admission by adverse party489 (e) Production or inspection of documents /
things490 (f) Physical / mental examination of persons491

WHAT IS A DEPOSITION

1. A deposition is the taking of the testimony of any person, whether he be a party or not, but at the instance of a
party to the action.

1.1 This testimony is taken out of court by oral examination or written interrogatory.

WHEN CAN DEPOSITIONS PENDING ACTIONS BE TAKEN

1. With leave of court, after jurisdiction has been acquired / obtained over any defendant or over property which is
the subject of the action as the issues are not yet joined and disputed facts are not yet clear or if a person is confined in a
prison with leave of court only, on such terms that the Court may prescribe.

2. Without leave of court, after an answer has been served.492

WHOSE DEPOSITION MAY BE TAKEN, HOW TAKEN, BY WHOM

1. Any person, whether a party or not, upon oral examination or written interrogatory upon the initiative of any party.

SCOPE OF A DEPOSITION

1. The deponent may be examined regarding any matter, not privileged , which is relevant to the subject of the
pending action whether it relates to a claim or a defense of any other party.

1.1 Including the existence, description, nature, custody, condition, location of any books, documents or other tangible
things and the identity and location of persons having knowledge of relevant facts. 493

2. The taking and scope of a deposition after notice is served for its taking by oral examination may be limited.

2.1 Upon motion seasonably filed, by a party or the person to be examined, and for good cause shown, the court in
which the action is pending may order: (a) Deposition not be taken (b)It be taken only at some designated place
other than that stated in the notice (c)It be taken only on written interrogatories (d) That certain matters shall not be
inquired into (e) That scope of the examination shall be held without anyone present except the parties to the action, and
their officers of counsel (f)That after depositions are sealed, they shall be opened only by order of the court (g)That secret
processes, developments or research need not be disclosed (h)That parties shall simultaneously file specified documents
or information enclosed in sealed envelopes to be opened as directed by the Court (i) That court may make any order
which justice requires to protect the party or witnesses from annoyance embarrassment or oppression. 494

3. During the taking of the deposition, it shall be taken subject to the additional limitations:

3.1 During the taking of the deposition, on motion or petition of any party or the deponent upon showing that the
examination is being conducted in bad faith or in such manner as to unreasonably annoy, embarrass or oppress the
deponent or a party, the court where the action is pending or the RTC of the place where deposition is being taken may
order the officer taking the examination to cease forthwith or limit the scope as provided in Section 16.

486
Supra, Rule 23
487
Supra, Rule 24
488
Supra, Rule 25
489
Supra, Rule 26
490
Supra, Rule 27
491
Supra, Rule 28
492
Supra, Section 1, Rule 23
493
Supra, Section 2, Rule 23
494
Supra, Section 16, Rule 23
3.2 If terminated, it shall be resumed thereafter only upon order of the Court in which the action is pending. Upon
demand of the objecting party/deponent, the taking shall be suspended for the time necessary to make a notice for an
order. In granting/refusing such order, the court may impose upon either party or upon the witness the requirement to pay
costs/expenses as the Court may deem reasonable.495

BEFORE WHOM MAY DEPOSITIONS BE TAKEN

1. Within the Philippines: a judge, notary public, or person authorized to administer oaths, at any time or place if so
stipulated in writing by the parties.496

2. In foreign countries: On notice before a secretary of the embassy or legation or the diplomatic minister and his
staff, consul general, consul, vice consul or consular agent of the Republic of the Philippines, or before such person or
officer as may be appointed by commission or letters rogatory. 497

2.1 A Commission is an instrument issued by a court of justice or other competent tribunal to authorize persons to
take a deposition or do any other act by authority of such court or tribunal. A Commission is addressed to officers
designated by name or descriptive title.

2.2 Letters Rogatory is an instrument sent in the name and by authority of a judge or court to another, requesting the
latter to cause to be examined, upon interrogatories filed in a case pending before the former, a witness who is within the
jurisdiction of the judge or court to whom such letters are addressed. Letters Rogatory are addressed to a judicial
authority in a foreign country and may be applied for and issued only after a commission has been returned unexecuted.

WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS

1. A Person who is a relative within the 6 th degree of consanguinity / affinity or employee or counsel of any of the
parties or relative within the same degree or employee of counsel or is financially interested in the action. 498

TAKING OF A DEPOSITION UPON AN ORAL EXAMINATION

1. The taking is initiated by the giving of reasonable notice in writing to every other party to the action , which must
state the time / place of the taking of the deposition and the name and address of the person to be examined, if known, If
not known, a general description sufficient to identify him or the particular class or group to which he belongs.

1.1 On motion of a party upon whom notice is served, the court , for cause, may enlarge or shorten the time. 499

2. Officer taking the deposition shall put the witness under oath and shall personally, or by someone acting under his
direction and his presence record the testimony of the witness stenographically unless the parties agree otherwise.

3. All objections as to the qualifications of the officer taking the deposition, the manner of taking the evidence
presented, conduct of the parties or any other objection shall be noted. Any evidence objected to shall be taken subject to
the objections.

4. Parties served with notice, in lieu of participating in the taking of the deposition, may submit written
interrogatories, which the officer taking the deposition shall propound to the witness and record the answers verbatim. 500

5. After the taking of the deposition, and testimony is transcribed, it is submitted to the witness for examination and
shall be read to or by him, unless such is waived by the witness and the parties. If there are changes, in form or
substance which the witness desires to make, it shall be entered upon the deposition by the officer with a statement as to
the reason given by the witness as why they are being made.

6. The deposition is then signed by the witness, unless the parties by stipulation waive the signing, or the witness is
ill or cannot be found or refuses to sign.

7. If not signed, the officer shall sign it and state on the record why it was not signed together with reasons. If there
is refusal to sign, the effect is that the deposition then may be used fully as though signed, unless on a motion to suppress
495
Supra, Section 18, Rule 23
496
Supra, Sections 10 and 14, Rule 23
497
Supra, Sections 11, 12, and 14, Rule 23
498
Supra, Section 13, Rule 23
499
Supra, Section 15, Rule 23
500
Supra, Section 17, Rule 23
under Sec 29 (f) , pertaining to errors or irregularities in preparation, the Court holds that the reason for refusal to sign
require rejection of the deposition in whole or in part. 501

8. Once signed, the officer shall certify on the deposition that the witness was duly sworn to by him and that the
deposition is a true record of the testimony of the witness. He shall then securely seal the deposition in an envelope
endorsed with the title of the action and marked deposition of _______ to be promptly filed with the court where the
action is pending or sent by registered mail to the clerk thereof for filing. 502

9. Notice of filing shall then promptly be given by the officer to all parties 503 and upon payment of reasonable
charges, he is to furnish copies of the deposition to any party or the deponent. 504

TAKING OF A DEPOSITION UPON WRITTEN INTERROGATORIES

1. Party desiring to take the deposition upon written interrogatories shall serve them upon every other party with
notice stating: (a) name and address of the person who will answer them (b) descriptive title and address of the person
who will take the deposition (c) Within 10 days, party served may serve cross-interrogatories on the party proposing to
take the deposition (d) Within 5 days thereafter, the latter may serve re-direct interrogatories upon the party serving
crossinterrogatories (5) within 3 days after being served of re-direct interrogatories, a party may serve re-cross
interrogatories upon party proposing to take deposition. 505

2. A copy of the notice and copies of all interrogatories shall be delivered by the party taking the deposition to officer
designated in the notice, who shall proceed promptly in the manner provided by Sections 17, 19 and 20 to take the
testimony of the witness in response to the interrogatories and to prepare, certify, and file / mail the deposition attaching
copies of the notice and interrogatories.506

3. Officer must promptly give notice of filing / and may furnish copies to parties and deponent upon payment of
reasonable charges.507

4. Note that Sections 15, 16 and 18 are applicable and that by motion, it can be asked that the deposition be upon
oral examination.

EFFECT OF NON-APPEARANCE

1. If party giving notice fails to appear and another attends in person or by counsel, the Court may order the party
giving notice to pay reasonable expenses incurred to attend, including reasonable attorneys fees. 508

2. If party giving notice does not serve subpoena and the witness does not appear, court can order party giving
notice to pay reasonable expenses for attendance plus attorneys fees to a party who appears in person or by counsel 509

TAKING OF DEPOSITIONS BEFORE ACTION OR PENDING APPEAL OR DEPOSTIONS IN PERPETUAM REI


MEMORIAM

1. A deposition before action is initiated by the filing of a verified petition by a person desiring to perpetuate his
testimony or that of any person in relation to any matter cognizable in any court in the Philippines in the Court in the place
of residence of the expected adverse party. 510

1.1 The contents of the petition which shall be entitled in the name of the petitioner and should show: (a) That
petitioner expects to be a party to an action in a Court in the Philippines but is presently unable to bring it or cause it to be
brought (b) The subject matter of the expected action and his interest therein (c) The facts that he desires to establish by
501
Supra, Section 19, Rule 23
502
Supra, Section 20, Rule 23
503
Supra, Section 21, Rule 23
504
Supra, Section 22, Rule 23
505
Supra, Section 25, Rule 23
506
Supra, Section 26, Rule 23
507
Supra, Section 27, Rule 23
508
Supra, Section 23, Rule 23
509
Supra, Section 24, Rule 23
510
Supra, Section 1, Rule 24
the proposed testimony and his reasons for desiring to perpetuate it (d) The names or description of the person he
expects will be adverse parties and their addresses so far as known (e) The names and addresses of the persons to be
examined and the substance of the testimony which he expects to elicit from each and shall then ask for an order
authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of
perpetuating their testimony.511

1.2 To Perpetuate means to preserve or make available testimony for later use at a trial by means of deposition.

2. After the petition is completed, the petitioner shall serve a notice upon each person named in the petition as an
expected adverse party, together with a copy of the petition stating that: he will apply to the Court at a time and place
stated therein, for the order described in the petition.

2.1 At least 20 days before the date of the hearing, the Court shall cause notice thereof to be served on the parties
and prospective deponents in the manner provided for service of summons. 512

3. If the Court is satisfied that the perpetuation of testimony may prevent a failure of justice or delay of justice, it shall
make an order designating or describing the persons whose depositions are to be taken, specifying the subject and
whether it will be upon oral execution or written interrogatories under Rule 23. 513

3.1 For purposes of applying Rule 23, references to the court in which the action is pending shall be deemed to refer
to the court in which petition for such deposition is filed. 514

4. A deposition taken under the Rule or although not so taken, it would be admissible in evidence, it may be used in
any action involving the same subject matter contained in petition subsequently brought in accordance with Sections 4
and 5 of Rule 23.515

5. A deposition pending appeal can be had If appeal is taken from a judgment of a Court including the CA in proper
cases or before the taking of an appeal if the time therefore has not yet expired.

5.1 The Court in which judgment was rendered may allow taking of depositions of witnesses to perpetuate their
testimony for use in the event of further proceedings in the said Court.

5.2 It is initiated by a party making a motion in said Court for leave to take depositions upon the said notice and
service thereof as if the action was pending therein, the motion should state: (a) name and addresses of persons to be
examined and substance of testimony to be elicited (b) reasons for perpetuating testimony.

5.3 If Court finds that it is proper to avoid failure or delay of justice, it may allow the depositions to be taken and used
in the same manner and under same conditions as prescribed for depositions in pending actions. 516

EFFECT OF TAKING AND USING DEPOSITIONS

1. A party shall not be deemed to make a person his own witness by taking his deposition.517

2. If introduced in evidence in whole/part for any purpose other than contradicting or impeaching the deponent, such
makes the deponent the witness of the party introducing the deposition.

2.1 But it does not apply to the use of an adverse party of a deposition as described in Par. (b) Section 4 of Rule
23.518

USE OF DEPOSITION

1. A deposition can be used at the trial, upon the hearing of a motion or an interlocutory proceeding.
511
Supra, Section 2, Rule 24
512
Supra, Section 3, Rule 24
513
Supra, Section 4, Rule 24
514
Supra, Section 5, Rule 24
515
Supra, Section 6, Rule 24
516
Supra, Section 7, Rule 24
517
Supra, Section 7, Rule 23
518
Supra, Section 8, Rule 23
1.1 Any part of all of a deposition, so far as admissible under the rules of evidence may be used against any party
who was present, or represented at the taking or had due notice thereof, in accordance with the following:

a. May be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness

b. Deposition of a party or anyone who at the time of the taking was an officer, director, or managing agent of a
public/private corporation partnership/association which is a party may be used by an adverse party for any purpose

c. Deposition of a witness, party or not, may be used by any party for any purpose if the court finds that: (1) witness
is dead (2)witness resides more than 100 kilometers from the place of trial/hearing or is out of the Philippines unless, it
appears that his absence is procured by the party offering the deposition (3) witness is unable to attend/testify because of
age, sickness, infirmity or imprisonment (4) party offering the deposition has been unable to procure the attendance of the
witness by subpoena (5) upon application and notice, exceptional circumstances exist as to make it desirable in the
interest of justice and with due regard to the importance of presenting the testimony of witness in open court, to allow the
deposition to be used.

d. If only a part of the deposition is offered in evidence by a party, the adverse party may require him to introduce all
of which is relevant to the part introduced, and any party may introduce the other parts. 519

WHEN DOES THE DEPOSITION BECOME EVIDENCE OR WHEN CAN IT BE USED AS EVIDENCE

1. If the deponent is a party, the opposing party can use it to prove his claim
or defense.

1.1 It may also be used to impeach or contradict the party deponent if he testifies.

2. If the deponent is only a witness, his deposition can only be used to impeach/contradict him if he testifies but if
Paragraph (c ) of Section 4 applies, it can be used for any purpose.

RESOLUTION OF OBJECTIONS WHEN DEPOSITIONS ARE PRESENTED

1. Subject to the provisions of Section 29, objections may be made at the trial or hearing to receive in evidence any
deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then
present and testifying.

2. Specific objections are resolved as follows:

2.1 As to notice, they are waived unless written objection is promptly served upon the party giving the notice

2.2 As to disqualification of the officer, it is waived unless made before the taking of the deposition or as soon
thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

2.3 As to competency relevancy of evidence, as to competency of the witness or competence, relevancy or materiality
of the evidence/testimony, they are not waived by the failure to make them before or during the taking of the deposition
unless the ground of the objection is one which might have been obviated or removed if presented at that time

2.4 As to oral examination and other particulars Errors and irregularities occurring at the oral examination in the
manner of taking, the form of the questions and answers, in the oath/affirmation, or the conduct of the parties and errors of
any kind which might be obviated, removed or cured it promptly, prosecuted, are waived, unless reasonable objection
thereto is made at the taking of the deposition.

2.5 As to the form of written interrogatories, the objections are waived unless served in writing upon party
propounding them within the time allowed for the serving of succeeding cross or other interrogatories and within 3 days
after service of the last interrogatory authorized.

2.6 As to manner of preparation, objections as to the manner in which the testimony is transcribed, or the deposition
is prepared, signed certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer are waived, unless a

519
Supra, Section 4, Rule 23
motion to suppress the deposition or part thereof is made with reasonable promptness after such defect is, or with due
diligence, might have been ascertained.520

HOW IS A DEPOSITION ACTUALLY USED AND ONCE A DEPOSITION HAS BEEN USED, WHAT CAN ADVERSE/
OTHER PARTIES DO

1. Generally, the deponent is called to testify. Hence he may be examined/cross-examined as permitted at the trial
under Sections 3 to 18, Rule 132.521

2. At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by
him or by any other party.522 This is called rebutting a deposition.

IS USE OF THE DEPOSITION LIMITED TO THE ACTION/PENDING ACTION WHEN IT WAS TAKEN

1. No, because substitution of parties does not affect the right to use depositions previously taken, when the action
is dismissed and another action involving the same subject is afterward brought between the same parties or their
representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in
the latter as if originally taken therefor.523

WRITTEN INTERROGATORIES

1. The purpose of a written interrogatory is to enable any party desiring to elicit material facts / relevant facts from
any adverse party by the filing and service upon the latter of a written interrogatory to be answered by the party served or
if party is public / private corporation or a partnership / association by any officer thereof competent to testify in its
behalf.524

2. An interrogatory is allowed under the same conditions as specified in Section 1, Rule 23 as to when it is to be
had.

HOW AND WHEN ANSWERED

1. Responses, which must be signed and sworn to, must be filed within 15 days from service, unless the Court on
motion and for good cause shown extends or shortens the time 525

2. Objections, if any, may be presented to the court within 10 days after service of notice as in the case of a motion,
answers shall then be deferred until objections are resolved, which shall be as early a time as is practicable. 526

HOW MANY INTERROGATORIES

1. No party may, without leave of court, serve more than one set of interrogatories to be answered by the same
party.527

SCOPE AND USE

1. It may relate to any matters that can be inquired into under Section 2, Rule 23 and the answers used for the same
purpose provided for by Section 4, Rule 23.528

EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES

1. Unless thereafter allowed by the court for good cause shown and to prevent failure of justice, a party not served
with written interrogatories may not be compelled by the adverse party to give testimony in open court or give a deposition
pending appeal.529
520
Supra, Section 29, Rule 23
521
Supra, Section 3, Rule 23
522
Supra, Section 9, Rule 23
523
Supra, Section 5, Rule 23
524
Supra, Section 1, Rule 25
525
Supra, Section 2, Rule 25
526
Supra, Section 3, Rule 25
527
Supra, Section 4, Rule 25
528
Supra, Section 5, Rule 25
529
Supra, Section 6, Rule 25
DISTINGUISHING DEPOSITION UPON WRITTEN INTERROGATORIES AND WRITTEN INTERROGATORIES

1. Any person, party or not can be required to or compelled to give a deposition upon written interrogatories, while
only the adverse party may be compelled to answer a written interrogatory.

2. A deposition upon written interrogatory is taken before an officer, while an adverse party without appearing before
an officer shall answer them in writing and under oath.

RULE 26 REQUESTS FOR ADMISSIONS

WHAT IS A REQUEST FOR ADMISSION

1. It is a written request for the (1) admission of the genuiness of any material and relevant document described in
and exhibited with the request or (2) the truth of any material or relevant matter of fact set forth in the request.
2. A party may file and serve a request for admission upon any other party at any time after the issues have been
joined.530

EFFECT OF FILING AND SERVICE UPON ANY OTHER PARTY

1. Each of the matters of which an admission is requested shall be deemed admitted unless, within a period
designated in the request, which shall not be less than 15 days after service thereof or such period which the Court will
allow on motion, the party served files and serves upon the requesting party a sworn statement, either denying specifically
the matters is setting forth in detail the reason why he cannot truthfully either admit / deny.

2. Objections, if any shall be submitted to the Court within the period for complying and prior to filing of the Sworn
Statement.

2.1 Compliance is then deferred until objections are resolved which should be done as early as practicable. 531

EFFECT OF ADMISSIONS

1. It is for the purpose of the pending action only and shall not constitute an admission by him for any purpose or
used against him in any other proceeding532

1.1 Although any admission, express or implied may be allowed by the court to be withdrawn or amended upon such
terms as may be just.533

EFFECT OF FAILURE TO SERVE

1. Unless otherwise allowed by the Court for good cause and to prevent failure of justice, a party who fails to serve a
request for admission of material / relevant facts at issue on the adverse party, which are or ought to be within the latters
personal knowledge, shall not be permitted to present evidence on such facts. 534

RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

HOW AVAILED OF

1. On motion of any party showing good cause, the court where the action is

pending may order, specifying the time, place and manner and prescribing such terms and conditions as are just, that:

1.1 Any party to produce and permit the inspection, copying, photographing, by or on behalf of a having party of any
designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged which
constitute or contain evidence material to any matter involved in the acition which are in his possession and control.
530
Supra, Section 1, Rule 26
531
Supra, Section 2, Rule 26
532
Supra, Section 3, Rule 26
533
Supra, Section 4, Rule 26
534
Supra, Section 5, Rule 26
1.2 Or, permit entry upon designated land or other property in his possession / control for the purpose of inspecting,
measuring, surveying or taking photographs of the property or any designated relevant object or operation thereon. 535

2. This mode of discovery is resorted to determine the contents or status of documents or things and/or the
preservation of the same.

3. The requisites that have to be complied with to compel the other party to produce or allow the inspection of
documents or things are: (a) the party must file a motion showing good cause (b) notice of the filing of the motion
must be served on all parties (c) the motion must designate the papers or things that are to be produced and
inspected (d) such papers or things are not privileged (e) that they constitute or contain evidence material to any
matter involved in the litigation, and (f) that they are in possession, control or custody of the other party. 536

RULE 28 PHYSICAL / MENTAL EXAMINATION OF PERSONS

WHEN AVAILED OF

1. In an action in which the mental or physical condition of a party is in controversy, a court in its discretion, can
order him to submit to physical / mental examination by a physician. 537

1.1 It can be ordered only upon motion for good cause shown, with notice to the party to be examined and to all other
parties, specifying the time, place, manner, condition and scope of the examination and person/s by whom it is to be
made.538

2. Once the examination is completed, the party examined may request that a detailed written report of the
examining physician setting forth his findings / conclusions.

2.1 If requested and delivered, the party causing examination to be made is entitled to request and receive from
examined party a like report of the same mental / physical examination / condition previously or thereafter made.

2.2 If request is refused, the court on motion may order delivery by the party examined on such terms as are just. If
the physician fails / refuses to make such report, his testimony may be excluded if his testimony is offered at trial. 539

2.3 Note that a waiver of privilege is caused by requesting and obtaining a report of the examination 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 the testimony of every other person who has examined or may thereafter
examine him in respect of the same mental / physical examination. 540 This refers primarily to the privilege between doctor
and patient.

RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY

EFFECTS OF THE REFUSAL TO COMPLY

1. If he refuses to answer upon being directed to do so or refuses to be sworn, it will constitute contempt of court. A
citation in contempt shall ensue after the following steps have been followed or observed:

1.1 If the party/deponent refuses to answer any question upon oral examination, the deposition may be completed on
other matters or adjourned as the proponent may prefer.

1.2 The proponent may then apply for an order to compel an answer in the proper court where the deposition is being
taken. This is also applicable to interrogatories.

535
Supra, Section 1, Rule 27
536
Solidbank Corporation vs. Gateway Electronics Corporation, 553 SCRA 256
537
Supra, Section 1, Rule 28
538
Supra, Section 2, Rule 28
539
Supra, Section 3, Rule 28
540
Supra, Section 4, Rule 28
1.3 If granted, the court can order that answer be made and if it finds that refusal is without substantial justification it
may impose upon deponent / counsel advising that no answer be given or both reasonable expenses and attorneys
fees in obtaining the order. If denied and the court finds application was filed without substantial justification proponent /
counsel advising application or both may in the same manner be sanctioned. 541

2. Other consequences that are applicable to Sec 1, Rule 29, Rule 27 and Rule 28, the Court may issue an:

2.1 order that the matters regarding which the questions are asked, character / description of thing or land / contents
of a paper or physical / mental condition of a party shall be taken to be established in accordance with the claim of the
party obtaining the order.

2.2 order refusing to allow the disobedient party to support / oppose designated claims / defenses or prohibiting him
from introducing in evidence the designated things / documents or items of testimony or from introducing evidence of
physical / mental condition.

2.3 order striking out pleadings or parts thereof or staying proceedings until the order is obeyed, dismissing the action
or proceeding or any part thereof, or rendering judgment by default against the disobedient party.

2.4 In lieu or in addition to orders, the disobedient party can be ordered arrested except in relation to a physical /
mental examination.542

OTHER SANCTIONS

1. Expenses on refusal to admit, if requested party serves a sworn denial and party serving request proves
genuineness / truth, he may apply for an order directing the requested party to pay expenses incurred in making proof
plus attorneys fees. Order is issued except if court finds good reasons for denial or admissions were of no substantial
importance. 543

2. Failure of a party to willfully appear before the officer taking the deposition, after being served with a proper
notice, or fails to serve answers to written interrogatories properly served, court may on motion and notice: (a)Strike out all
or any part of the pleading of that party (b) Dismiss the action / proceeding / part thereof (c) Enter judgment by default
against that party, (d) and ,in its discretion, order payment of reasonable expenses and attorneys fees 544 but no expenses
or fees are to be assessed against the Republic of the Philippines. 545

541
Supra, Sections 1 and 2, Rule 29
542
Supra, Section 3, Rule 29
543
Supra, Section 4, Rule 29
544
Supra, Section 5, Rule 29
545
Supra, Section 6, Rule 29
RULE 30 TRIAL
NOTICE OF TRIAL

1. Upon entry of a case in the trial calendar the clerk shall notify the parties of the date of the trial in such manner
as to ensure receipt of the notice at least 5 days before such date. 546

MAY TRIAL BE POSTPONED / ADJOURNED

1. Courts may adjourn a trial from day to day, and to any stated time as the expeditious and convenient transaction
of business may require but it shall have no power to adjourn for a longer period than one month for each adjournment,
nor more than three months in all, except when authorized in writing by the Court Administrator of the Supreme Court. 547

IF MOTION TO POSTPONE IS DUE TO ABSENCE OF EVIDENCE

1. Can only be granted upon affidavit showing the materiality / relevancy of the evidence and that due diligence has
been used to procure it, BUT, if the adverse party admits the facts to be given in evidence, or even if he objects or
reserves the right to object to their admissibility, the trial shall not be postponed. 548

IF DUE TO ILLNESS OF PARTY OR COUNSEL

1. May be granted, if it appears upon affidavit or sworn certification that the presence of party / counsel at the trial is
indispensable and that character of illness is such as to render non-appearance excusable. 549

WHAT IS THE ORDER OF TRIAL

1. Subject to Section 2, Rule 31 on separate trials and unless the court orders for special reasons, it shall be limited
to the issues stated in the pre-trial order and shall proceed as follows:

1.1 Plaintiff adduces evidence in support of his complaint

1.2 Defendant adduces evidence in support of his defense, counterclaim, crossclaim and 3 rd party complaint

1.3 Third party defendant, if any, shall adduce evidence of his defense, counterclaim, crossclaim and 4 th party
complaint.

1.4 Fourth party, and so forth, if any, shall adduce evidence of the material facts pleaded by them.

1.5 Parties against whom any counterclaim/ cross-claim has been pleaded shall adduce evidence in support of their
defense, in the order prescribed by the Court.

1.6 The parties may then respectively adduce rebutting evidence, unless the Court, for good reasons and in the
furtherance of justice, permits them to adduce evidence upon their original case.

1.7 Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the
parties to argue or submit memoranda or any further pleadings.

TRIAL OF ISSUES

1. The trial of issues shall be limited to the issues stated in the pre-trial order, unless the court directs otherwise for
special reasons.

2. If several defendants or 3rd party defendants and so forth, having separate defenses appear by different counsel,
the court shall determine the relative order of presentation of their evidence. 550

546
Supra, Section 1, Rule 30
547
Supra, Section 2, Rule 30
548
Supra, Section 3, Rule 30
549
Supra, Section 4, Rule 30
550
Supra, Section 5, Rule 30
MAY THERE BE AN AGREEMENT UPON THE FACTS AND SUBMISSION OF THE CASE FOR JUDGMENT WITHOUT
INTRODUCTION OF EVIDENCE

1. Yes, provided that the agreement be in writing.

2. If the parties agree only on some facts, trial shall be held as to the disputed facts 551

3. There cannot be a judgment based on stipulation of facts in legal separation, annulment of marriage and
declaration of nullity.

3.1 Note that in the same cases, neither is there judgment by default, judgment on the pleadings, summary
judgment, judgment upon confession, judgment upon compromise, judgment based on stipulation of facts.

WHAT ARE TO BE MADE OF RECORD

1. All proceedings, including any statement made by the judge with reference to the case, or to any of the parties,
witnesses or counsel shall be made of record in the stenographic notes. 552

WHO IS TO RECEIVE EVIDENCE

1. The judge is required to personally receive the evidence. But in default / ex-parte or when parties agree in writing
it may be delegated to the clerk of court who should be member of the bar though he has no power to resolve objections
to any question or admission of exhibits . Such shall be resolved by the court upon submission of his report and
transcripts within 10 days from termination of the hearing. 553

CAN ACTIONS BE SUSPENDED

1. Actions may be suspended as governed by the provisions of the Civil Code 554: (a) if willingness to discuss a
compromise is expressed by one or both parties (b) if it appears that one of the parties, before the commencement of an
action / proceeding, offered to discuss a possible compromise but the other party refused the offer. 555

RULE 31 CONSOLIDATION OR SEVERANCE


WHEN CAN CONSOLIDATION TAKE PLACE

1. When actions involving a common question of law or fact are pending before the court, it may order joint hearing
or trial of any or all the matters in issue in the actions, it may order all actions consolidated. Then it may make such orders
concerning proceedings therein as may tend to avoid unnecessary costs / delay 556

2. The rationale for consolidation is to have all cases, which are intimately related, acted upon by one branch of the
court to avoid the possibility of conflicting decisions being rendered. 557

MAY THERE BE CONSOLIDATION ALTHOUGH ACTIONS ARE PENDING IN DIFFERENT COURTS

1. Yes, involving the consolidation of civil action with criminal action, if filed before criminal action and trial has not
yet commenced.558

PURPOSE OF ALLOWING CONSOLIDATION

1. The purpose of allowing consolidation is to avoid multiplicity of suits, guard against oppression or abuse, prevent
delay, clearing of dockets, simplify the work of trial court, save unnecessary expenses / costs.

2. Note though that if actions involve a common question of law or fact because they arise from a single cause of
action between the same parties, the remedy is dismissal on litis pendentia, not consolidation.
551
Supra, Section 6, Rule 30
552
Supra, Section 7, Rule 30
553
Supra, Section 9, Rule 30
554
Supra, Section 8, Rule 30
555
Civil Code, Article 2030
556
Supra, Section 1, Rule 31
557
Philippine Airlines, Inc. vs. Zamora, 564 SCRA 50
558
Section 1, Rule 111 of the Rules on Criminal Procedure
3. An petition for the issuance of a writ of possession cannot be consolidated with an action to annul the foreclosure
notwithstanding the argument that the former case would become groundless as the latter case is contesting the
presumed ownership on which the petition for a writ of possession is based. Strictly speaking the petition for the issuance
of a writ of possession is not a judicial process, it is a non-litigious process that is summary in nature. In contract, the
action for annulment of foreclosure is an ordinary civil action and is adversarial in character. The right of the petitioner in
the writ of possession case will be prejudiced by the consolidation with the annulment of foreclosure case. 559

WHEN CAN SEPARATION TAKE PLACE AND WHAT DOES IT COVER

1. Covers any claim, cross-claim, counterclaim or third party claim or any separate issue or of any number of claims,
cross-claims, counter claims, third party complaints, or issues in furtherance of convenience or to avoid prejudice. 560

RULE 32 TRIAL BY COMMISSIONER


WHEN RESORTED TO

1. Trial by commissioners may be resorted to upon order of the court, which will then refer any or all issues when:

1.1 Parties agree in writing and the commissioner may either be agreed upon or appointed by the Court

1.2 When parties do not consent, on courts own motion or upon application of either party, if may be directed in the
following: (a) Trial of an issue of fact requires examination of a long account (b) The taking of an account is
necessary for the information of the court before judgment or for carrying judgment / or order into effect (c) A question of
fact, other than upon the pleadings arises upon motion or otherwise, in any stage of the case, or for carrying a judgment
or order into effect.561

2. The term commissioner may include a referee, an auditor or examiner 562

3. A commissioner is designated or authorized by an order of reference which will specify or limit his powers, direct
him to report only on or upon particular issues or do or perform particular acts, receive or report evidence only and fix date
for beginning / closing hearings and for the filing of the report.

3.1 He shall then have and exercise the power to: (a)Regulate the proceeding before him (b)Do all acts and take all
measures necessary or proper for the efficient performance of his duties upon the order (c)Issue subpoenas (d) Swear
witnesses (e)Unless otherwise provided, rule upon the admissibility of evidence 563

3.2 The trial shall then proceed before the commissioner/s in all respects as it would be held in court.

PROCEDURE

1. Commissioner takes oath and be sworn to a faithful and honest performance of his duties 564

2. Upon receipt of the Order of Reference, and unless otherwise stipulated he shall forthwith set a time and place for
the first meeting of the parties and counsel within 10 days after the date of the order of reference, and shall notify parties /
counsel565

3. If parties / counsel fail to appear, he may proceed ex-parte or in his discretion, adjourn the proceedings, giving
notice to the absent party or counsel of the adjournment 566

559
PNB vs. Gotesco, GR 183211, June 5, 2009
560
Supra, Section 2, Rule 31
561
Supra, Section 1, Rule 32
562
Supra, Section 2, Rule 32
563
Supra, Section 3, Rule 32
564
Supra, Section 4, Rule 32
565
Supra, Section 5, Rule 32
566
Supra, Section 6, Rule 32
4. He shall avoid delay as he is duty bound to proceed with all reasonable diligence. Either party on notice to other
parties and the commissioner may apply for a court order to expedite proceedings / report 567
568
5. If witness refuses to obey a subpoena or give evidence. It shall constitute contempt of the appointing court

6. Upon completion of trial / hearing / proceeding he shall file with the court has report in writing upon the matters
submitted to him by the order of reference. When powers are not specified or limited, he shall set forth his findings of fact
and conclusions of law in his report. He shall also attach all exhibits, affidavits, depositions, paper and transcripts of the
testimonial evidence given569

7. Notice is then given by the clerk to the parties of the filing of the report, they shall then be allowed 10 days within
which to signify objections to the findings in the report, is so desired.

7.1 Objections to the report based on grounds available to the parties during the proceedings before the
commissioner, other than as to the findings / conclusions, shall not be considered unless made before the
commissioner.570

8. Upon expiration of the period, the report shall be set for hearing, after which the court shall issue an order
adopting, modifying, or rejecting the report in whole or in part or recommitting it with instructions or requiring the parties to
present further evidence to the commissioner 571

9. If the parties stipulate that the commissioners findings of facts shall be final, only questions of law shall be
thereafter considered. 572

9.1 Note that the findings of the commissioner are merely advisory and are not absolutely binding upon the court. 573

EXPENSES / COMPENSATION

1. They shall be reasonable as warranted by the circumstances and are to be taxed as costs against the defeated
party or apportioned as justice requires574

WHEN REFERENCE TO COMMISSIONERS IS REQUIRED BY THE RULES

1. Reference to commissioners is required in the following cases: (a)Expropriation under Rule 67 to determine just
compensation (b)Partition under Rule 69, when parties cannot agree as to the manner of partition.

RULE 33 DEMURRER TO THE EVIDENCE


WHO FILES AND WHEN FILED

1. The defendant is the party who may move for the dismissal of the action after presentation by the plaintiff of
evidence on the ground that upon the facts and the law, plaintiff has shown no right to relief. 575

EFFECTS OF FILING AND RESOLUTION

1. If granted, the action is dismissed, but if appealed and reversed, he loses his right to prevent evidence and
judgment is rendered in favor of the plaintiff576

1.1 An order dismissing a case for insufficiency of evidence is a judgment on the merits, it is imperative that it be a
reasoned decision and distinctly stating therein the facts and the law on which it is based. 577
567
Supra, Section 8, Rule 32
568
Supra, Section 7, Rule 32
569
Supra, Section 9, Rule 32
570
Supra, Section 10, Rule 32
571
Supra, Section 11, Rule 32
572
Supra, Section 12, Rule 32
573
Eternal Gardens Memorial Park Corporation v Court of Appeals, 282 SCRA 553
574
Supra, Section 13, Rule 32
575
Supra, Section 1, Rule 33
576
Quebral v Court of Appeals, 252 SCRA 353
577
Nicos Industrial Corporation v Court of Appeals, 206 SCRA 127
2. If denied, defendant may present his evidence as it does not constitute a waiver of right to do so.

2.1 The court should set a date for reception of the evidence of the defendant. It should not proceed to grant the
plaintiff relief.578

2.2 The order of denial is an interlocutory order and is therefore not appealable.

2.3 It may however be questioned by certiorari in case of grave abuse of discretion. 579

3. It is an error on the part of the appellate court to order a remand, if dismissal is elevated to it on appeal, it must
decide on the evidence adduced by the plaintiff.580

DISTINGUISHED FROM A MOTION TO DISMISS

1. A motion to dismiss is usually filed before service and filing of an answer, while a demurrer is made after the
plaintiff rests his case.

2. A motion to dismiss is based on several grounds, while a demurrer is based only on the failure of the plaintiff to
show a right to relief.

3. A denial of the motion to dismiss will require the subsequent filing of an answer, while the denial of a demurrer
requires the subsequent presentation of evidence.

DISTINGUISHED FROM CRIMINAL CASES

1. In both civil and criminal actions, the basis for both is the insufficiency of evidence.

2. In a civil action, dismissal by demurrer is by motion only, while in a criminal action, dismissal by demurrer is upon
the courts initiative or motion giving the prosecution an opportunity to be heard.

3. In a civil action, leave is not required prior to filing, while in a criminal action leave may / may not be obtained. If
obtained, there is no waiver of right to present evidence. If denied and if there is no leave, it is a waiver

4. In a civil action, if granted, plaintiffs remedy is appeal, while in a criminal action, if granted, there is no appeal as
such will constitute double jeopardy.

RULE 34 JUDGMENT ON THE PLEADINGS


JUDGMENT ON THE PLEADINGS
581
1. Can be had if the answer fails to tender an issue or otherwise admits the material allegations of the complaint

1.1 There is no motu propio rendition of judgment as it is always by motion.

2. An answer fails to tender an issue when it fails to comply with the requirements of specific denial or is deemed to
have admitted the allegations in the complaint.582

2.1 An answer admits the material allegations when it expressly confesses the truthfulness thereof or where it omits
to deal with them all.

3. Note that when an answer raises factual issues involving damages, it is not proper to render judgment on the
pleadings as presentation of evidence is required.

WHO MAY MOVE FOR JUDGMENT ON THE PLEADINGS

578
Northwest Airlines v. Court of Appeals, 284 SCRA 408
579
Katigbak v. Sandiganbayan, 405 SCRA 558
580
Radiowealth Finance Company v Del Rosario, 335 SCRA 288
581
Supra, Section 1, Rule 34
582
Supra, Sections 8,9 and 11, Rule 8
1. Only the plaintiff in original complaint, or of the counter-claim, or of the cross claim, or of the third party complaint
may so move for judgment on the pleadings.

2. When a party moves for a judgment on the pleadings, and the same is granted by the trial court, he hereby
waives presentation of evidence.583

WHEN NOT ALLOWED

1. Judgment on the pleadings is not allowed in cases of: (a) Declaration of nullity of marriage (b) Annulment of
marriage (c)Legal separation.
1.1 In these cases, the plaintiff is required to prove the material facts regardless of whether the answer tenders an
issue or not.

RULE 35 SUMMARY JUDGMENT


WHAT IS SUMMARY JUDGMENT

1. Is a devise for weeding out sham claims or defenses at an early stage of the litigation thereby avoiding the
expense / loss of time involved in a trial.

1.1 Its very object is to separate what is formal or pretended in denial or averment from what is genuine and
substantial so that only the latter may subject a suitor to the burden of trial.

1.2 This is also known as Accelerated Judgment584

WHO MAY MOVE FOR SUMMARY JUDGMENT AND WHEN

1. Either plaintiff or defendant may move for a summary judgment:

2. If plaintiff or a claimant in the original complaint / counterclaim / cross-claim, he may file the motion at any time
after the pleading in answer to his claim has been filed on the ground that although there is an apparent issue, the same
is sham or false.585 .

2.1 Example: Answer admits obligation but states that the amount is wrong or less than that claimed. If plaintiff has
proof that there is written acknowledgment that as of a date or period prior to that of the filing, the defendant was aware of
the true amount, there can be summary judgment.

3. If movant is the defending party, he may file the motion at any time before or after he files his answer on the
ground that plaintiffs claim against him is sham or false 586

3.1 An issue is sham or false if it is not genuine. Genuine means that the issue of fact is one that calls for the
presentation of evidence.587

4. In either case, the motion must be filed along with supporting affidavits, depositions or admissions.

5. The procedure for the filing and resolution of a motion for summary judgment is as follows:

5.1 Plaintiff/Defendant serves on the defendant/plaintiff a copy of the motion at least 10 days before the date of
hearing specified in the motion.

5.2 The defendant/plaintiff may serve opposing affidavits, depositions or admissions at least 3 days before the date of
the hearing.

5.3 Court hears the motion.

583
Alfarero v. Sevilla, 411 SCRA 387
584
Monterey Foods Corporation v Eserjose, 410 SCRA 627, Puyat v Zabarte, 352 SCRA 738
585
Supra, Section 1, Rule 35
586
Supra, Section 2, Rule 35
587
Excelsa Industries v Court of Appeals, 247 SCRA 560
6. If after hearing, it finds that the motion filed by plaintiff justified, thus there is no genuine issue as to any material
fact, it will render summary judgment for the plaintiff.

6.1 If not, it will deny, set the case for pre-trial, then trial.

6.2 If filed by the defendant and is justified, the complaint is dismissed, otherwise the case proceeds with the filing of
answer or pre-trial is set and conducted.

FORM OF AFFIDAVITS / SUPPORTING DOCUMENTS

1. They shall be made on personal knowledge, setting forth such facts as would be admissible in evidence and shall
show affirmatively that the affiant is competent to testify to the matters stated therein.

1.1 Certified copies of all papers / parts thereof shall be attached and served therewith. 588

2. If affidavits have been determined to the satisfaction of the court that they are presented in bad faith or solely for
the purpose of delay, the Court may forthwith order the offending party to pay reasonable expenses which may have been
incurred by the other party, including attorneys fees. It may also find / adjudge, after hearing, that attending party /
counsel are guilty of contempt.589

EFFECT OF THE RENDITION OF SUMMARY JUDGMENT

1. The aggrieved party may appeal the summary judgment as such is final judgment as defined by Section 1, Rule
41.

2. If denied, it is not appealable as order of denial of motion is interlocutory.


2.1 Certiorari may lie if the rendering of a summary judgment is clear, plain and patent but the court refuses or
declines to render it.

WHEN CAN THERE BE A PARTIAL SUMMARY JUDGMENT

1. There can be a partial summary judgment when the Court finds that a judgment cannot be rendered upon the
whole case or for all the reliefs because there are controverted facts which require trial.

1.1 A partial summary judgment is not appealable and shall be taken together with the judgment that a trial court will
render after trial. Thus, it cannot be executed.590

DISTINGUISHED FROM JUDGMENT ON THE PLEADINGS

1. Summary judgment is distinguished from a judgment on the pleadings as follows: (a) A Judgment on the
Pleadings is available when there is no genuine issue as answer fails to tender an issue or otherwise admits material
allegations, while Summary Judgment is available when there is an apparent issue but is a sham, fictitious or false (b) A
Judgment on the Pleadings is based exclusively on the pleadings (complaint / answer), while Summary Judgment is
based not only on pleadings but also on affidavits, depositions and admissions, showing that except as to damages there
is no genuine issue (c) A Judgment on the Pleadings can be filed only after an answer has been filed, while in Summary
Judgment, there may or may not be an answer (d) A Judgment on the Pleadings can only be had by the plaintiff, while in
Summary Judgment, either plaintiff or defendant may move for it (e) a motion for Judgment on the Pleadings is required
to be served on adverseparty at least 3 days prior to the hearing, while a motion for Summary Judgment requires service
at least 10 days prior to the hearing

2. Judgment on the Pleadings is a judgment on facts as pleaded, Summary Judgment is a judgment as summarily
proven by affidavits, depositions, admissions. If an answer tenders an issue, there can be no Judgment on the Pleadings
but there can be Summary Judgment, if issue/s is later shown to be false, sham or fictitious.

588
Supra, Section 5, Rule 35
589
Supra, Section 6, Rule 35
590
Supra, Section 4, Rule 35
RULE 36 JUDGMENTS, FINAL ORDERS, AND ENTRY THEREOF
WHAT IS A JUDGMENT

1. A judgment is a final ruling by a court of competent jurisdiction regarding the rights or other matters submitted to it
in an action or proceeding.591

2. It is the courts official and final consideration and determination of the rights and obligations of the parties. 592

REQUISITES OF A JUDGMENT/FINAL ORDER

1. The requisites of a judgment or final order are: (a) It must be in writing (b) It must be personally and directly
prepared by the judge (c) It must state clearly and distinctly the facts and the law on which it is based (d) It must
be signed by the judge (e) It must be filed with the clerk of court. 593

1.1 Note that a judge who has been reassigned can pen a decision as long he is still an incumbent judge. 594

1.2 A decision penned by the judge after his retirement cannot be validly promulgated and cannot acquire binding
effect. In the like manner, a decision penned during his incumbency cannot be promulgated after his retirement. When a
judge retires, all his authority to decide a case and write, sign and promulgate the decision has also retired with him. 595

1.3 It is not necessary that the judge who pens the decision is the one who heard and tried the case. 596

2. A decision that does not state clearly and distinctly the facts and law on which it is based leaves the parties in the
dark as to how it was reached and is especially prejudicial to the losing party who is unable to pinpoint errors for review
upon an appeal. A decision without anything to support it is a patent nullity.597A void judgment has no legal and binding
effect, force or efficacy for any purpose.598

2.1 There is no need though for a statement of all the facts and evidence presented. What is required is that the
factual and legal basis be distinctly and clearly set forth. 599

2.2 The rule is also applicable to the denials of a petition for review or of a motion for reconsideration 600 and the
resolution of a motion to dismiss.601

2.3. Resolutions of the Supreme Court denying petitions for review of the Court of Appeals are not decisions within the
purview of the Constitution602, neither are minute resolutions.603 When such is issued, it is understood that the challenged
decision or order, together with the findings of fact and legal conclusions are deemed sustained. 604

3. A Memorandum Decision is one which adopts by references findings of facts and conclusions of law contained in
the decision of an inferior tribunal. Note that this does not violate the rule as to statement of the facts and law. This kind of
a decision can only be rendered by an appellate court.

4. A Sin Perjuicio Judgment is one which is without a statement of facts and is to be supplemented later by the final
judgment. Such a judgment is void. It contains only the dispositive portion and reserves the making of findings in a
subsequent judgment. This shall have no effect.605
591
Macahilig v. Magalit, 344 SCRA 838
592
46 Am Jur 2d, Judgments
593
Supra, Section 1, Rule 36
594
ABC Davao Auto Supply v Court of Appeals, GR 113296, January 16, 1998
595
Nazareno v Court of Appeals, 378 SCRA 28
596
Serna v Court of Appeals, 308 SCRA 527, Citibank NA v Sabeniano, GR 156132, October 12, 2006
597
Miguel v JCT Group Inc, 453 SCRA 529
598
Guevarra v Sandiganbayan, 454 SCRA 372
599
Chan v Court of Appeals, 457 SCRA 502
600
Section 14, Article VIII, Constitution
601
Barrazona v RTC of Baguio, GR No. 154282, April 7, 2006
602
Novino v Court of Appeals, 8 SCRA 279
603
Commercial Union Assurance,Ltd. V Lepanto Consolidated Mining Company, 86 SCRA 79
604
Complaint of Rogelio Arrienda v Justices Puno, et al, 460 SCRA 1
605
Dizon v Lopez, AM-RTJ-96-1388, 278 SCRA 483
5. A conditional judgment is one the effectivity of which depends on the occurrence or non-occurrence of an event.
Such a judgment is void because of the absence of a disposition and cannot be executed. 606

5.1 Where the judgment is for a sum of money to be determined by another, it is an incomplete judgment which
cannot be executed.607

PARTS OF A JUDGMENT

1. A judgment has two parts: (a) body of the decision or the ratio decidendi, and (b) the dispositive portion or the
fallo. It is the latter that is subject to execution as it should settle and declare the rights and obligations of the party, finally,
definitively, and authoritatively.608

1.1 In case of conflict, the fallo prevails, but if the inevitable conclusion from the body is so clear that there is a
mistake in the dispositive portion, the body will prevail. 609

1.2 An ambiguity in the judgment is best addressed by a motion for a clarificatory judgment

WHEN IS JUDGMENT RENDERED

1. Ordinarily after trial, except in judgment on the pleadings, summary judgment, judgment by compromise,
judgment based on stipulation of facts, judgment upon confession, order of dismissal in instances when it considered as
an adjudication on the merits, judgment in cases covered by the Rules of Summary Procedure.

1.1 The periods for a court to render judgment is within 24 months from date of submission for decision for the
Supreme Court, within 12 months for lower collegiate courts, within 3 months for all other lower courts. 610

1.2 Extensions may be obtained from the Supreme Court on account of a heavy caseload or other reasonable
excuse. Without any extension, a delay in disposition is tantamount to gross inefficiency. 611

2. It is the filing of the judgment or final order with the clerk of court that constitutes rendition of judgment, not the
date of the writing of the decision or judgment, nor the signing thereof or even promulgation thereof. 612

DUTY OF THE CLERK OF COURT WHEN JUDGMENT BECOMES FINAL

1. If no appeal or motion for reconsideration or new trial is brought within the time provided, the judgment / final
order shall forthwith be entered by the clerk in the Book of Entries of Judgment.

1.1 The date of finality shall be deemed the date of entry and shall contain the dispositive portion and signed by the
clerk which a certificate that such judgment / final order has become final and executory. 613

1.2 Note that date of entry retroacts to date of finality. Hence, both occur simultaneously by operation of law.

2. Judgments that are final and executory can be corrected if they pertain to: (a) clerical errors (b) nunc pro tunc,
meaning then for now, entries or those intended to show what the judicial action was but was then omitted from the
records614 (c) whenever circumstances transpire after finality rendering its execution unjust 615 and (d) in cases of special
and exceptional nature as when facts and circumstances transpire which render execution impossible or unjust, when
necessary to harmonize the disposition with prevailing circumstances. 616

606
Pascua v Simeon, 161 SCRA 1, Cu Unjieng v Mabalacat Sugar Company, 70 Phil 384
607
DBP v. Tanada, 56 SCRA 470
608
LRTA v Court of Appeals, 444 SCRA 125
609
Poland Industrial Limited v. NDC, 467 SCRA 500
610
Article VIII, Section 15, Constitution
611
Arap v Mustafa, A.M. No. SCC-017, March 12, 2002
612
Castro v Malazo, 99 SCRA 164
613
Supra, Section 2, Rule 36
614
Briones v Vasquez, 450 SCRA 482
615
Siy v NLRC, GR No. 158971, January 25, 2006
616
Industrial Timber Corporation vs. Ababon, GR No. 164518, January 25, 2006
3. Correction or amendment is also allowed if the purpose is to clarify an ambiguity caused by an omission or
mistake, judgment / final order.

4. A compromise after finality of a judgment is allowed. The basis of the allowance is the principle of novation, which
is a mode of extinguishing an obligation.617

5. Petition for extraordinary relief- GR 167651, San Pablo vs. marina May 10, 2005

FOR WHOM JUDGMENTS MAY BE RENDERED

1. They may be given for or against one or more several plaintiffs or for or against one or more several defendants.

2. Courts, when justice demands can require parties on each side to file adversary proceedings as between
themselves to determine their ultimate rights / obligations. 618

3. In an action against several defendants, the courts if proper may render judgment against one or more, leaving
the action to proceed against the others.619 This is a several judgment. Example: Judgment against a surety for its
admitted liability.

4. Separate judgments may be rendered when more than one claim for relief is presented, the court at any stage
upon determination of the issues material to a particular claim and all counter claims arising therefrom may render a
separate judgment disposing of the claim and proceeding with the others but, it may stay execution or enforcement until
rendition of subsequent judgment/s and may prescribe such conditions to secure benefit thereof to the party in whose
favor the judgment is rendered.620 An example is when causes of action have been joined

5. Judgment against entity without juridical personality it shall set forth the individual names / proper names if known
of persons composing it.621

RULE 37 NEW TRIAL OR RECONSIDERATION


WHEN FILED

1. A motion for new trial or reconsideration may be filed within the period for taking an appeal. 622

GROUNDS FOR A MOTION FOR NEW TRIAL

1. Fraud, Accident, Mistake, Excusable Negligence which ordinary prudence could not have guarded against and by
reason of which the aggrieved party was probably impaired in his rights.

1.1 Fraud should be extrinsic or collateral, which refers to such acts that prevents a party from having a trial /
presenting his case in court. It refers to all kinds of deceptions, whether through insidious machination, manipulation or
concealment or misrepresentation that leads another party to error. 623 Examples are: false promise to compromise or
connivance of lawyer with adverse party. This does not include intrinsic fraud or acts of a party at trial that prevents fair
determination. Examples are: perjury, falsification.

1.2 Accident is a fortuitous event, circumstance, or happening; an event happening without any human agency or if
happening wholly or partly through huma n agency, is an event which under the circumstances is unusual or unexpected
by the person to whom it happens.624 Examples are sickness of a party, lack of notice, when the same is sent to another
address.

617
Magbanua v. Uy, 458 SCRA 185
618
Supra, Section 3, Rule 36
619
Supra, Section 4, Rule 36
620
Supra, Section 5, Rule 36
621
Supra, Section 6, Rule 36
622
Supra, Section 1, Rule 37
623
Maestrado v Court of Appeals, 327 SCRA 678
624
Jarco Marketing v Court of Appeals, 321 SCRA 375
1.3 Mistake refers to some unintentional act, omission, or error arising from ignorance, surprise, imposition, or
misplaced confidence. It pertains generally to mistake of fact, not of law. 625Examples are failure to answer / act because
he believed it unnecessary because of a compromise or other document.

1.4 Excusable Negligence626 is an excusable omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affiants, would do; or the reasonable doing of something
which a prudent or reasonable man would not do. The failure here is really that of the party or counsel, such as a non
submission on time because of distance traveled.

2. Newly Discovered Evidence, which the aggrieved party could not with reasonable diligence, have discovered or
produced at the trial and which would probably alter the result.

2.1 Hence, the requisites are: (a)Evidence is discovered after trial (b)Such could not have been discovered and
produced at the trial with reasonable diligence (c) Evidence is material, not cumulative, corroborative, or
impeaching, and is of such weight that, if admitted, could probably change the judgment. 627

GROUNDS FOR MOTION FOR RECONSIDERATION

1. The grounds for a motion for reconsideration are: (a) Award of excessive damages (b) Insufficiency of
evidence to justify the decision or final order (c) Decision / final order is contrary to law

HOW FILED / CONTENTS

1. It shall be made in writing stating the ground/s, written notice of which shall be served by the movant on the
adverse party.

2. If the Motion for New Trial is based on Fraud, Accident, Mistake or Excusable Negligence, it should be supported
by affidavits of merit, which may be rebutted by affidavits.

2.1 The requirement of an affidavit is essential because obviously a new trial would be a waste of the courts time if
the complaint turns out to be groundless or the defense ineffective. 628

3. If based on newly discovered evidence it should be supported by affidavits of the witnesses by whom such
evidence is expected to be given or by duly authenticated documents which are proposed to be introduced as evidence.

4. If it is a motion for reconsideration, it should point out specifically the finding / conclusions which are not
supported by the evidence / contrary to law, making express reference to testimonial / documentary evidence or
provisions alleged to be contrary to such findings or conclusions.

4.1 If not, the motion is considered a pro-forma motion. It does not toll the reglementary period of appeal. 629

4.2 Note also that such a motion without notice of hearing and proof of service has the same effect 630

IF A MOTION FOR NEW TRIAL IS FILED, WHAT ENSUES

1. Court may either deny or set aside the judgment or final order and grant a new trial 631

1.1 If denied, another motion may be filed, if it is based on a ground not existing nor available, when the first motion
has filed.632

1.2 Note that a motion for new trial is an omnibus motion, thus it should include all grounds then available as those
not included are deemed waived.

625
Agan v Heirs of Sps. Andres and Diosdada Nueva, 418 SCRA 421
626
Mckee v Intermediate Appellate Court, 211 SCRA 517
627
Marikina Valley Development Corporation v Court of Appeals, 294 SCRA 273
628
Yap v Tanada, 163 SCRA 464
629
Marina Properties Corporation v Court of Appeals, 294 SCRA 273, Cledera v Sarmiento, 39 SCRA 552
630
Firme v Reyes, 92 SCRA 713
631
Supra, Section 3, Rule 37
632
Supra, Section 5, Rule 37
2. IF granted, the effects are (a) original order / judgment is vacated (b) the action shall stand trial de novo (c)
recorded evidence, insofar as material or competent to establish the issues, shall be used at the new trial without need to
for it to retaken.633

IF MOTION FOR RECONSIDERATION IS FILED WHAT ENSUES

1. Court may deny or amend its judgment / final order if it finds that excessive damages are awarded, or that it is
contrary to the evidence or the law634

2. If denied, no second motion for reconsideration is allowed of the judgment or final order.

2.1 The filing of a second motion for reconsideration is a prohibited pleading. Thus it does not toll the running of the
reglementary period of appeal.635

3. Note though that if the subject is not a judgment / final order or is an interlocutory order which does not dispose of
a case completely but leaves something more to be done upon its merits, a 2 nd motion for reconsideration may be allowed.

OTHER MATTERS PERTAINING TO SUBJECT MOTIONS

1. The periods for resolving the motions are: (a) MTC / RTC within 30 days from the time it is submitted for
resolution636 (b) Court of Appeals within 60 days after if declares it submitted for resolution (c) Supreme Cour- no period is
prescribed

2. The denial of both motions is not appealable, it is the judgment or final order that is appealable. 637

3. A motion for reconsideration is a pre-condition to an appeal in cases of (a) habeas corpus in relation to custody of
minors (b) annulment of marriage (c) declaration of nullity of marriage, (d) legal separation.

RULE 38 RELIEF FROM JUDGMENT, ORDERS OR OTHER PROCEEDINGS


GROUNDS UPON WHICH IT IS TO BE BASED

1. Judgment / final order is entered, or proceeding is thereafter taken against him through fraud, accident, mistake or
excusable negligence.

1.1 These grounds likewise support the petition when there is a failure to take an appeal.

2. The object to the petition is that the judgment, order, or proceeding be set aside or that the appeal be given due
course.

2.1 The petition must be verified.638

3. The other ways by which a final and executory judgment may be set aside is by Petition for Certiorari under Rule
65 and by Annulment of Judgment under Rule 47.639

4. The petition is premised on equity. It should therefore be granted only in exceptional cases.

4.1 Petitioner must be able to prove fraud, accident, mistake or excusable negligence and the existence of a good
and substantial cause of action or defense, as the case may be. 640

633
Supra, Section 6, Rule 37
634
Supra, Section 3, Rule 37
635
Hongria v Hongria-Juarde, 425 SCRA 504
636
Supra, Section 4, Rule 37
637
Barnes v Reyes, 411 SCRA 538
638
Supra, Sections 1 and 2, Rule 38
639
Arcelona v Court of Appeals, 280 SCRA 20
640
Torno v Intermediate Appellate Court, 166 SCRA 742
5. It cannot be availed of if there is another remedy in law 641and is available only against a final and executory
judgment.642

6. Note though that if the case is covered by the Rules on Summary Procedure, a petition for relief is a prohibited
pleading.643

WHEN AND WHERE FILED

1. It is to be filed within 60 days after he learns of the judgment final order / proceeding but not more than 6 month
after such judgment / final order was entered or such proceeding taken. 644

1.1 A few days after expiration of the 60 day period is not entirely fatal as long as it is still filed within the 6 months
period.645

1.2 But if it is a judgment by compromise, the 6 months period runs from date of rendition, because a judgment upon
a compromise is immediately executory and considered to have been entered on the date it was approved by the trial
court.646

1.3 The 6 months period is reckoned from entry of judgment or final order, not from its rendition. 647 The phrase from
learning means from notice of judgment or final order 648

2. It is to be filed in the same case and in the same court where the judgment / final order was entered or where
proceeding is taken.

2.1 A petition for relief from judgment is not an available remedy in the Supreme Court nor in the Court of Appeals.
This is the rule notwithstanding the statement that a party in any court may file a petition. The phrase applies only to a
Municipal Trial Court or a Regional Trial Court.649

PROCEDURE
1. Filing of verified petition accompanied by affidavits showing the ground and the facts showing the petitioners
good and substantial cause of action or defense, as the case may be.

2. Order issued requiring adverse party to answer within 15 days from receipt 650
2.1 If warranted a writ of preliminary Injunction may be issued as may be necessary for the preservation of the rights
of the parties, upon the filing by the petitioner of a bond to indemnify the respondent for all damages and costs incurred if
the petitionis dismissed or the petitioner fails on the trial on the merits.

2.2 However, such injunction shall not operate to discharge or extinguish any lien which the adverse party may have
acquired upon property of the petitioner.651

3. Adverse party answers, but if he does not, he cannot be declared in default.

4. Court hears and may grant relief if the allegations are true or deny if not true.

4.1 If granted, the assailed final order / judgment / proceeding is set aside and proceedings taken as if a timely
motion for new trial has been granted. 652 There are in effect two hearings: the first is as to the merits of the petition, the
second is as the merits of the principal case.
641
Alquesa v Cavada, Jr. 3 SCRA 428
642
Valencia v Court of Appeals, 352 SCRA 72
643
Sta Lucia Realty and Development Corporation v Court of Appeals, 343 SCRA 214
644
Supra, Section 3, Rule 38
645
Mago v Court of Appeals, 303 SCRA 600
646
Manipor v Ricafort, 407 SCRA 298
647
Bayog v Natino, 258 SCRA 378
648
Prudence Realty and Development Corporation v Court of Appeals, 231 SCRA 379
649
Pucson Jr. vs. MRM Philippines, Inc. G.R. No. 182718, September 26, 2008
650
Supra, Section 4, Rule 38
651
Supra, Section 5, Rule 38
652
Supra, Section 6, Rule 38
4.2 If denied, the order is not appealable653 but may be subject of certiorari under Rule 65.

5. Court hears the case as if a timely motion for new trial or reconsideration has granted.

5.1 If the subject is denial of an appeal, the lower court shall be required to give due course to the appeal and elevate
the records as if a timely and proper appeal has been made. 654

6. Judgment is rendered and is appealable

DISTINGUISHED FROM A MOTION FOR NEW TRIAL


1. They are distinguished as follows: (a) a motion for new trial is filed before judgment becomes final, while a
petition for relies if filed after a judgment becomes final (b) a motion for new trial applies to judgments / final orders,
while a petition for relief includes proceedings (c) the grounds for a motion for new trial includes newly discovered
evidence, while a petition for relief is limited to FAME (d) a motion for new trial is filed within the period for perfecting an
appeal, while a petition for relief is filed within 60 days from knowledge but within 6 months from entry of judgment
(e) a motion for new trial if denied allows an appeal, while a petition for relief from judgment does not allow an appeal (f) a
motion for new trial is a legal remedy, while a petition for relief is a remedy in equity (g) a motion for new trial requires no
verification, while a petition for relief needs to be verified.

RULE 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS


EXECUTION DEFINED

1. It is the remedy afforded for the satisfaction of a judgment. 655It is the fruit and end of a suit.656

TWO KINDS OF EXECUTION

1. Compulsory Execution is one which issues as a matter of right, on motion, upon a judgment or order that disposes
of the action or proceeding upon expiration of the period to appeal, if no appeal is taken or is perfected.

1.1 It also issues when appeal is duly perfected and finally resolved.

1.2 It may be applied for in the court of origin, on motion of judgment obligee submitting certified true copies of the
judgment / final orders / orders sought to be enforced and entry thereof, with notice to the adverse party. There is no need
for return of records.

1.3. It may also be applied for in the appellate court, on motion in the same case, when the interest of justice so
requires, direct the court of origin to issue the writ of execution in the event of the refusal of the court of origin to issue the
writ. 657

1.4. A motion is required as there may be questions / disputes as to finality or amounts to be stated in the writ.

2. Discretionary Execution is one that is issued, on motion, of the prevailing party for good reasons. This is also
known as execution pending appeal or exceptional execution 658

2.1 It is filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or
the record on appeal, as the case may be, at the time of the filing of the motion. 659 The court, may in its discretion, order
execution of judgment / final order even before the expiration of the period to appeal.

2.2 If the trial court has lost jurisdiction, it is to be filed with the appellate court. A court loses jurisdiction when there is
perfected appeal and the period to appeal has expired. When a record on appeal is required, it loses jurisdiction over the
subject of the appeal upon perfection of the appeal and expiration of the period to appeal.

653
Supra, Section 1(b), Rule 41
654
Supra, Section 7, Rule 38
655
Cagayan De Oro Coliseum v Court of Appeals, 320 SCRA 731
656
Ayo v Violago Isnani, 380 SCRA 543
657
Supra, Section 1, Rule 39
658
Supra, Section 2, Rule 39
659
Philippine Nails & Wires Corpoation v Malayan Insurance Company, 397 SCRA 431
2.3 The requisites of execution pending appeal are: (a) A motion by the prevailing party with notice to the adverse
party (b)There must be good reason for execution pending appeal (c) The good reason must be stated in a special
order. They must constitute superior circumstances demanding urgency which will outweigh the injury or damage should
the losing party secure a reversal of the judgment on appeal. 660

2.4 Examples of good reasons are: proven insolvency of the debtor 661 deterioration of the goods662, prevailing partys
inability to enjoy the decision, or its becoming illusory. In a recent case, old age was found to be a good reason663

2.5 Stay of discretionary execution can be had upon approval by the proper court of a sufficient supersedeas bond
filed by the party against whom it is directed conditioned upon performance of the judgment or final order allowed to be
executed in case finally sustained in whole in part. The bond may then be proceeded against on motion with notice to the
surety664 but, the mere filing of a bond by a successful party allow execution pending appeal nor constitute good ground. 665

3. There are judgments not stayed by appeal such as judgments in injunction, to include a judgment dissolving it 666
receivership, accounting and support and such other judgments as are now or hereafter be declared to be immediately
executory, shall be enforceable upon their rendition, they shall not be stayed by an appeal taken therefrom, unless
otherwise ordered by the trial court.

3.1 If stayed, it shall be upon such terms as to bond or otherwise as may be considered proper for the security /
protection of the rights of the adverse party. On appeal though, the appellate court may make an order suspending,
modifying, restoring or granting the injunction, receivership, accounting or award of support. 667

3.2 Judgments in Forcible Entry / Illegal Detainer, if against the defendant are immediately executory. 668 The same is
true of a judgment by compromise.669

4. Separate, Several or Partial Judgments may executed under the same terms and conditions as execution of a
judgment / final order pending appeal.670

4.1 If execution is granted by the judgment/final order is reversed on appeal or totally / partially or annulled, on
appeal or otherwise, the trial court, on motion, may issue orders of reparation or restitution of damages as equity and
justice may warrant under the circumstances.671

4.2 The phrase or otherwise applies to reversal after a petition for relief has been granted under Rule 38 and upon a
favorable judgment in a petition for annulment of judgment under Rule 47

5. The Court of Appeals has no authority to issue immediate execution pending appeal of its own decision.
Discretionary execution applies only to a judgment or final order of the trial court. 672

WHAT ARE / OR MAY BE THE SUBJECT OF EXECUTION

1. Only judgments or final orders, or one which disposes of the whole subject matter or terminates a particular
proceeding or action, leaving nothing to be done but to enforce by execution that which has been determined.

1.1 Distinguishing a final judgment or order from one which has become final and executory. A final judgment is
one that finally disposes of a case, leaving nothing more to be done by the court in respect thereto. It is an adjudication on
the merits. Once rendered, the task of the court is ended, as far deciding the controversy or determining rights and
liabilities of litigants. Nothing more is to be done but to await the parties next move, and ultimately, to cause execution of
the judgment once it becomes final and executory. 673
660
Jaca v Davao Lumber Company, 113 SCRA 107
661
Lao v Mencias, 21 SCRA 1021
662
Intramuros Tennis Club, Inc. v Court of Appeals, 341 SCRA 90
663
FEBTC v Toh, Sr. 404 SCRA 590
664
Supra, Section 3, Rule 39
665
International School v. Court of Appeals, 309 SCRA 474
666
ITC v PTA, 341 SCRA 90
667
Supra, Section 4, Rule 39
668
Supra, Section 19, Rule 70
669
Litton v Court of Appeals, 263 SCRA 40, AFPMBAI v Court of Appeals, 311 SCRA 143
670
Supra, Section 2 (b), Rule 39
671
Supra, Section 5, Rule 39
672
Heirs of the late Justice JBL Reyes v Demetria, 374 SCRA 206
673
Denso Philippines, Incorporated v IAC, 148 SCRA 280
1.2 An exception for the need to await a final judgment or order is a judgment for support pendente lite. 674 The
principal case in this instance still continues.

1.3 As a rule, after a judgment becomes final and executory, execution becomes a ministerial duty of the court. 675

1.4 Execution may however be denied when: (a) judgment has been complied with voluntarily 676(b) When the
judgment has been novated (c) When a petition for relief has been filed and a writ of injunction is granted (d) When
execution is sought more than five years from entry of judgment (e) When execution is sought against exempt property (f)
when the judgment is conditional

HOW CAN A FINAL JUDGMENT / ORDER BE ENFORCED

1. A final and executory judgment may be enforced by (a) By motion within 5 years from date of entry of judgment
(b) By action after the lapse of 5 years from date of entry of judgment but before barred by statute of limitations,
which is 10 years. This is known as action to revive judgment. 677

2. The revived judgment may also be enforced by motion within 5 years from date of entry, and thereafter by action
before it is barred by the statute of limitations. The purpose of the action is not to re-examine the issues as the cause of
action is the judgment itself and not the merits of the original action. 678

The proper venue of an action for revival of judgment depends on the determination of whether the present action for revival is a real
or personal action.679

3. Reconciling the actions upon a judgment under Article 1144 of the Civil Code, which prescribes in 10 years, there
is no conflict as the Rules of Court refer to the manner of execution of the judgment.

3.1 Note that this is not applicable in land registration cases or other special proceedings but only in civil actions.

4. There are however instances when judgment / final order can still be enforced by motion even after lapse of 5
years when the delay is caused or occasioned by the actions of the judgment obligee or incurred for his benefit or
advantage.680

4.1 The liberal construction of the rule resulting in non inclusion of the period of delay occasioned by the acts of the
judgment obligee in the counting of the period was resorted to as strict adherence to the letter of the law would result in
absurdity and manifest injustice.681

ISSUANCE, FORM, CONTENTS OF A WRIT OF EXECUTION

1. A writ of execution shall (a) Issue in the name of the Republic of the Philippines from the Court that granted the
judgment (b) State the name of court, case number, title, and dispositive portion (c) Require the sheriff or other
proper officer to whom it is directed to enforce the writ according to its terms.

2. The terms or manner so provided is as follows: (a) execution be against property of judgment obligor, to satisfy
judgment with interest, out of his real or personal property (b) if against real or personal property, in the hands of
personal representatives, heirs, devisees, legatees, tenants trustees of the judgment obligor, to satisfy the judgment, with
interest, out of such property (c) if it be for sale of real / personal property, to sell it, describing it, and apply the proceeds
in conformity with the judgment, the material parts of which shall be recited in the writ (d)if it be for delivery of the
possession of real / personal property, to deliver the possession of the same, describing it, to the party entitled thereto and
to satisfy any costs, damages, rents, profits covered by the judgment out of the personal property of the person against
whom it was rendered, and if no sufficient personal property be present, out of real property (e) in all cases, the writ shall

674
Supra, Section 5, Rule 61
675
Fideldia v. Songcuan, 465 SCRA 218
676
Cunanan v Court of Appeals, 25 SCRA 263
677
Supra, Section 6, Rule 39
678
Laperal v Ocampo, 410 SCRA 339
679
Infante v Aran Builders, 531 SCRA 123 (August 24, 2007)
680
Camacho v Court of Appeals, 287 SCRA 611
681
Republic v Court of Appeals, 260 SCRA 344
specifically state the amount of interest, costs damages, rents, profits due as of the date of issuance of the writ aside from
the principal obligation under judgment682

IF EXECUTION IS FOR SUMS OF MONEY


1. Immediate payment on demand from judgment obligor payable in cash of certified bank check payable to the
obligee or any form acceptable to him plus lawful fees to be turned over to the clerk of court of the court that issued the
writ.

1.1 If judgment obligee is not present to receive the amounts, it shall be delivered by judgment obligor to the sheriff,
turning in all amounts on the same day to the clerk of court or if not practicable, to deposit in the nearest government
depository bank of Regional Trial Court in the locality, then arrangements are then made for remittance to clerk of court
issuing the writ for delivery to the judgment obligee. In no case shall the sheriff demand payment by check payable to him.

2. Satisfaction by Levy, if not paid in cash, the sheriff shall levy on the properties of judgment obligor of any kind /
nature which may be disposed of for value and not otherwise exempt from execution.

2.1 The obligor is given the option to immediately choose which property or part thereof may be levied upon to satisfy
judgment. If not, sheriff shall levy on personal properties first, if any, then on real properties if insufficient to answer for
judgment.

2.2 Sheriff can only sell sufficient portion of the personal / real property levied upon when there is more property then
is sufficient to satisfy judgment, on so much of it to satisfy judgment is to be sold. The conduct of the sale shall be the
same as that of execution for the sale of property.

2.3 The effect of a levy is that it shall create a lien in favor of the judgment obligee over the right, title and interest of
the judgment obligor in such property at the time of levy, subject to liens / encumbrances then existing. Hence, the effect
then on 3rd persons will be dependent on when their liens / encumbrances, if any, was annotated or interposed. 683

2.4 If a levy is made beyond the period of 5 years from entry of judgment. The same is not valid as lifetime or a writ of
execution is 5 years from date of entry of judgment. 684

3. Garnishment of debts and credits. The officer may levy on debts due the judgment obligor and other credits.
Examples: bank deposits, financial interests, royalties, commissions, and other personal property. These are not capable
of normal delivery and are in the possession and control of third parties.

3.1 Levy shall be made by serving notice on the person owing such debts or having in his possession or control such
credits to which the judgment obligor is entitled.

3.2 The garnishee, shall then make a written report to the court from service of notice stating whether or not the
judgment obligor has sufficient funds or credits to satisfy the judgment. The garnished amount shall then be delivered
directly to the judgment obligee within 10 working days from service of notice on him requiring delivery, less lawful fees to
be paid directly to the Court.

3.3 If there are 2 or more garnishees, the judgment obligor shall have the right to indicate the garnishee/s who shall
deliver, otherwise it shall be the choice of the judgment obligee. 685

4. Writ is to be returned to the Court issuing it immediately after judgment has been satisfied in part or in whole. If
not / cannot be satisfied in full within 30 days from receipt of the writ, the officer shall report to the court and state the
reason therefor. Such writ will continue to be in effect during the period within which judgment may be enforced by motion,
the officer shall then make a report to the Court every 30 days on the proceedings taken thereon until the judgment is
satisfied in full or its effectivity expires. The returns / reports shall set forth the proceedings taken, filed with the court and
copies promptly furnished parties.686

682
Supra, Section 8, Rule 39
683
Supra, Section 12, Rule 39
684
Supra, Section 14, Rule 39
685
Supra, Section 9, Rule 39
686
Supra, Section 14, Rule 39
EXECUTION FOR SPECIFIC ACTS687
1. If conveyance, delivery of deeds or other specific acts are required, a party is directed to comply if he fails to do
so within the period specified, court may direct the act to be done at the cost of the disobedient party, by some other
person appointed by the court and when so done it is as if done by the disobedient party. If it involves real / personal
property located in the Philippines, the court in lieu of directing a conveyance thereof may by an order divest title and vest
it in others, which shall have the force and effect of a conveyance executed in due form of law.

IF EXECUTION IS FOR THE SALE OF REAL/PERSONAL PROPERTY

1. The property is to be sold, describing it, and applying the proceeds in conformity with the judgment.

2. Notice must be given as follows: (a) Perishable property posting of written notice(of time, place, sale in 3 public
places preferably in conspicuous areas of the municipal/city hall, post office, public market, for such a time as may be
reasonable depending on circumstances (b) Personal property posting of written notice in 3 public places for not
less than 5 days (c) Real property posting of written notice in 3 public places for at least 20 days, describing the
property, where it is to be sold, and if assessed value is in excess of PHP 50,000.00, publishing the notice in a newspaper
of general circulation once a week for 2 consecutive weeks. In all cases written notice is also given to judgment obligor
at least 3 days before the sale except in (a) notice is given at any time in the same manner as personal service of
pleadings. 688

2.1 The contents of the notice are the place, date exact time not earlier than 9:00 am or later than 2:00 pm. The place
may be agreed upon. If not agreed upon: (a) Real/Personal property not capable of manual delivery shall be sold at the
Office of the Clerk of Court of Regional or Municipal Trial Court issuing the writ (b) If capable of manual delivery, where
personal property is located.

2.2 If there is a sale without notice, the officer is liable for punitive damages in the amount of PHP 5,000.00 in addition
to actual damages sustained by injured person. If the notice is defaced or removed before the sale / satisfaction of the
judgment, the person so defacing or removing shall be liable to pay PHP 5,000.00 plus actual damages. These are
recoverable upon motion.689

3. The manner of sale shall be by public auction. This applies also when property is levied upon.

3.1 Sale is made to the highest bidder, to start at the exact time stated in the notice.

3.2. If sufficient property has been sold, no more shall be sold and any excess property / proceeds shall be delivered
to the judgment obligor or his representative, unless otherwise directed by the court. Like when other debts due to be paid

3.3 If sale is of real property consisting of several known lots, they must be sold separately or if claimed by a 3rd
person, he may require it to be sold separately.

3.4 Personal property capable of manual delivery must be sold within view of those attending and in such parcels so
as to bring the highest price.

3.5 The judgment obligor, if present may direct the order in which the property is to be sold when such property
consists of several parcels / known lots which can be sold to advantage separately.

3.6 No officer or his deputies, can be a purchaser, nor be interested directly or indirectly in any purchase at such
sale.690

3.7 By written consent of both judgment obligor / obligee or their duly authorized representatives, the auction sale
may be adjourned to any date or time agreed by them. Without an agreement officer may adjourn from day to day if it
becomes necessary.691

3.8 When a purchaser refuses to pay , the officer may again sell the property to the highest bidder and shall not be
responsible for any loss occasioned thereby, like when it is resold for less. But, the court may order the refusing purchaser
to pay unto the Court such loss, and punish him with contempt if he disobeys. Payment shall inure to the benefit of party
687
Supra, Section 10, Rule 39
688
Supra, Section 15, Rule 39
689
Supra, Section 17, Rule 39
690
Supra, Section 19, Rule 39
691
Supra, Section 22, Rule 39
entitled to execution, unless he has been satisfied, in which case to the judgment obligor. In addition, officer may
thereafter reject all bids of such purchaser. 692

3.9 The judgment obligee can be a purchaser, and if no 3rd party claim has been filed, he need not pay the amount if it
does not exceed the amount of his judgment. If it does he shall only pay the excess. 693

3.10 If the judgment obligor pays the judgment before sale, the sale is prevented by the payment required by execution
and cost incurred therein694

3.11 A third party claimant is one who claims title to, or right of possession of the property levied upon by the sheriff.
Note that there may be a 3rd party claimant in execution, preliminary attachment and replevin.

3.12 A third party claimant can file a 3rd party claim or a terceria by executing an affidavit showing his title thereto, or
right of possession over the property being levied upon, stating therein the grounds of such title or right, serving a copy
thereof to the sheriff and judgment obligee. If filed, sheriff is not obliged to proceed unless the judgment obligee files an
indemnity bond in an amount not less than value of the property. No action on the bond may enforced by the third party
claimant unless filed within 120 days from date of the filing of the bond. If bond is filed, a 3 rd party claimant may vindicate
his claim within the period or he may institute a separate action to vindicate his claim but nothing also prevents the
judgment obligee from claiming damages in the same or separate action against a 3 rd party claimant who files a frivolous /
spurious claim. Note that if writ is issued in the name of the Republic of the Philippines, no bond is required. Officer is to
be represented by the Solicitor General, and if damages are assessed, it is to be paid out of the National Treasury. 695

4. After a sale, a conveyance is to be made as follows:

4.1 Real Property a certificate of sale is given stating the description of the property, price paid for each distinct lot /
parcel, whole price paid and a statement that the right of redemption shall or will expire one year from date of registration
of the certificate696 making mention of the existence of a 3rd party claim, if any. 697 Note: the requirement of mentioning a
3rd party claim, if any, applies also to conveyance over personal property.

4.2 The parties entitled to redeem are: (a) Judgment obligor, or his successor in interest, in whole or any part of the
property, or (b) A creditor having a lien by virtue of an attachment, judgment, mortgage on the property sold or on some
part thereof, subsequent to the lien under which the property is sold. Such redeeming creditor is called a redemptioner.698

4.3 The judgment obligor / redemptioner may redeem the property from the purchaser at any time within 1 year from
registration by paying the amount of purchase, plus 1% interest per month at the time of redemption, together with the
amounts of assessments / taxes paid at the purchase and interest on the same at the same rate, and, if the purchaser be
also a creditor having a prior lien to that of the redemptioner, other than the judgment, the amount of the lien plus interest.

4.4 Property so redeemed may be redeemed within 60 days after the last redemption upon payment of the sum paid,
w/ 2% interest thereon plus taxes / assessments paid, and amount of liens held by redemptioner prior to his own, and so
forth.

4.5 Written notice however of redemption must be given to the officer who made the sale and duplicate with the
Registry of Deeds and if any assessments / taxes / prior liens are paid, notice must also be given to above parties
otherwise, redemption can be effected without paying taxes / assessments / liens. Note: Proof required of redemption
under Section 30

4.6 Proof of Redemption-A redemptioner must produce to the officer, or person from whom he seeks to redeem, and
serve with notice to the officer, a copy of judgment or final order, certified by the clerk of court or the mortgage / other lien,
certified copy by the Register of Deeds / or memorandum thereof and affidavit showing amount due on the lien. 699

4.7 If the Judgment Obligor redeems, -He must make all the payments required to effect a redemption by a
redemptioner. Thereupon, no further redemption is allowed and he is restored to his estate. The person upon whom

692
Supra, Section 20, Rule 39
693
Supra, Section 21, Rule 39
694
Supra, Section 18, Rule 39
695
Supra, Section 16, Rule 39
696
Supra, Section 25, Rule 39
697
Supra, Section 26, Rule 39
698
Supra, Section 27, Rule 39
699
Supra, Section 30, Rule 39
redemption payment is made shall execute a Certificate of Redemption after payment. Certificate is then filed with the
Office of the Registry of Deeds.700

4.8 Pending redemption, use of the real property shall remain with the person in possession at the time of sale
or entitled to possession afterwards may continue to use it in the same manner as it was previously used, or to use in the
ordinary course of husbandry or to make necessary repairs to buildings thereon while he occupies the property, but the
court in proper cases, may restrain the commission of waste on the property by injunction on the application of the
purchaser / judgment obligee with or without notice. 701

4.9 Rents, earnings and income shall belong to the judgment obligor until the expiration of his period for redemption.
Neither shall the purchaser or judgment obligee be entitled to the same when such property is in the possession of a
tenant.702

4.10 If no redemption is made within one year from date of registration, the purchaser is entitled to possession and
conveyance or if so redeemed whenever 60 days has elapsed and no other redemption is made and the time for
redemption has expired, the last redemptioner is entitled to possession and conveyance but, in all cases the judgment
obligor is entitled to have the entire period of one year.

4.11 Officer shall execute the deed / or his successor in interest with the same effect. Once done, the purchaser /
redemptioner shall be substituted to and acquire all the rights title and interest and claim of the judgment obligor to the
property as of the time of the levy. Possession shall then be given unless property is held by a 3 rd party adverse to the
judgment obligor.703 Manner of effecting transfer of possession is by writ of possession. 704

4.12 If the sale is rendered ineffective as when the purchaser of real property or his successor in interest fails to
recover possession or is evicted therefrom as a consequence of: irregularities in the proceedings concerning the sale,
judgment has been reversed or set aside pursuant to a petition for relief,property is exempt from execution , or that 3 rd
person has vindicated his right to the property. He may on motion in the same action or in a separate action recover from
the judgment obligee the price paid with interest, or so much thereof as has not been delivered to the judgment obligor or
he may on motion have the judgment revived in his name, if a redemptioner for the whole price with interest, or so much
thereof as has been delivered to the judgment obligor. The judgment revived shall have the same force and effect as an
original judgment would have as of the date of revived and no more. 705

4.13 If it involves personal property that is capable of Manual Delivery, the officer must deliver the property and if
desired, execute and deliver a certificate of sale, which shall conveys all right with the judgment obligor had in such
property as of date of levy on execution or preliminary attachment. 706

4.14 If Incapable of Manual Delivery, the officer must execute and deliver a certificate of sale and such shall convey all
rights to purchaser as of the date of levy on execution or preliminary attachment. 707

EXECUTION IS FOR DELIVERY OR RESTITUTION OF REAL PROPERTY

1. The officer shall demand of the person against whom judgment is rendered and all persons claiming rights under
him to peaceably vacate the property within 3 working days and restore possession thereof to the judgment oblige
otherwise the officer shall oust all such persons thereon, with assistance from peace officers employing reasonable
means and place the judgment obligee in possession.
1.1 Any costs, damages, rents, profits shall be satisfied in the same manner as a judgment for money.

EXECUTION IS FOR REMOVAL OF IMPROVEMENTS

1. The officer shall not destroy, demolish or remove except upon special order of the court, issued upon motion /
hearing and after the judgment obligee had failed to remove within a reasonable time fixed by the rules.

EXECUTION IS FOR DELIVERY OF PERSONAL PROPERTY

700
Supra, Section 29, Rule 39
701
Supra, Section 31, Rule 39
702
Supra, Section 32, Rule 39
703
Supra, Section 33, Rule 39
704
Cometa v IAC, 151 SCRA 563, AutoCorp Group v Court of Appeals, 437 SCRA 678
705
Supra, Section 34, Rule 39
706
Supra, Section 23, Rule 39
707
Supra, Section 24, Rule 39
1. The officer shall take possession and forthwith deliver it to party entitled thereto and satisfy any judgment for
money as herein provided. 708

EXECUTION OF SPECIAL JUDGMENTS

1. Performance of an act other than those enumerated in Section 9 and 10, a certified copy of the judgment shall be
attached to the writ of execution and served upon party against whom it is rendered, or upon any person required thereby,
or by law, to obey the same.

1.1 If such party / person disobeys, they may be punished for contempt. 709

2. Examples of special judgments are judgments in cases for Injunction or Quo warranto

WHAT ARE THE PROPERTIES EXEMPT FROM EXECUTION

1. Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from
execution:

(a) The judgment obligors family home as provided by law, or the homestead in which he resides, and land
necessarily used in connection therewith;

(b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood;

(c) Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may
select necessarily used by him in his ordinary occupation;

(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;

(e) Household furniture and utensils necessary for housekeeping, 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 hundred thousand pesos;

(f) Provisions for individual libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers,
surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value;

(h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a
fisherman and by the lawful use of which he earns his livelihood;

(i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four
months preceding the levy as are necessary for the support of his family;

(j) Lettered gravestones;

(k) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance;

(l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from
the Government;

(m) Properties specially exempted by law.

2. But no article or species of property mentioned in this section shall be exempt from execution issued upon a
judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. 710

3. Claims for exemption from execution of properties must be presented before its sale on execution by the sheriff. 711

WHAT HAPPENS TO EXECUTION UPON THE DEATH OF A PARTY

1. It may issue or be enforced:

708
Supra, Sections 9 and 10, Rule 39
709
Supra, Section 11, Rule 39
710
Supra, Section 13, Rule 39
711
Gomez v Gealone, 203 SCRA 474
1.1 In case of death of judgment obligee, upon application of his executor or administrator

1.2 In case of death of judgment obligor, against his executor, administrator, or successor in interest, IF it be for
recovery of real or personal property or enforcement of a lien.

1.3 Death of judgment obligor after execution is actually levied upon any of his property, the same may be sold for the
satisfaction of the judgment obligation and the officer must account to the executor or administrator for any surplus, if any.
712

AS BETWEEN SEVERAL PERSONS AGAINST WHOM EXECUTION IS DIRECTED

1. There is a right to contribution or reimbursement if: more than a due portion of the judgment is satisfied out of the
proceeds of the sale of the property of one of them, or, one pays, without sale, more than his proportion.

1.1 If judgment is upon an obligation of one of them, as security for another, and the surety pays the amount, or any
part thereof, either by sale of property or before a sale, he may compel repayment from the principal. 713

WHAT ARE THE OTHER REMEDIES OF THE JUDGMENT OBLIGEE IF EXECUTION IS NOT CARRIED OUT OR
JUDGMENT IS NOT SATISFIED

1. Examination of the judgment obligor concerning his property and income before the court or a commissioner
and proceedings may thereafter may be had for the application of his property or income towards satisfaction of judgment
but no obligor can be required to appear before a court or commissioner outside the province or city where he resides. 714

2. Examination of the obligor of the judgment obligor upon proof shown to the satisfaction of the court that a person,
corporation or other juridical entity has property of the judgment obligor or is indebted to him, the Court may by order
require the person, corporation or juridical entity to appear before the Court / commissioner and be examined concerning
the same.

2.1 The service of the order shall bind all credits due the judgment obligor and all money / property of the judgment
obligor in the possession / control of the person, corporation or juridical entity.

2.2 Notice of all proceedings may also be required by the court. 715

2.3 Obligor of judgment obligor may thereafter pay after writ of execution on property has been issued, the amount of
his debt or so much thereof as may be necessary to satisfy the judgment and the sheriffs receipt shall constitute sufficient
discharge for the amount so paid or directed to be credited by the judgment obligee on the execution 716

2.4 In relation to both remedies party or other person may be compelled to appear by subpoena and failure to obey
an order, subpoena or be sworn or answer as a witness or subscribe to a deposition is punishable by contempt. 717

3. Order for application of property and income to satisfaction of judgment. it may include his property or money
due the judgment obligor, not exempt from execution, in his hands or other person, corporation or juridical entity may be
applied to satisfaction of judgment subject to any prior rights over such property.

3.1 Also, if upon investigation of current income and expenses, the earnings of judgment obligor are more than
necessary for the support of his family, the court may order that judgment be paid by monthly installments, failing in which
he may be punished for indirect contempt.718

4. Appointment of a receiver for the property of the judgment obligor, it may also forbid a transfer or other
disposition of or interference with the property of the judgment obligor not exempt from execution. 719

4.1 Thereafter, there can be a sale by the receiver upon order of ascertainable interest (or the real estate itself) of a
judgment obligor in real estate in the place where proceedings are had as mortgagor / mortgagee or otherwise and if his
712
Supra, Section 7, Rule 39
713
Supra, Section 35, Rule 39
714
Supra, Section 36, Rule 39
715
Supra, Section 37, Rule 39
716
Supra, Section 39, Rule 39
717
Supra, Section 38, Rule 39
718
Supra, Section 40, Rule 39
719
Supra, Section 41, Rule 39
interest can be ascertained without controversy, the receiver may be ordered to sell and convey such interest or real
estate or the interest of the obligor therein. All proceedings to be approved by the Court before execution of the deed. 720

5. In relation to the foregoing, if it appears that a person or corporation, alleged to have property of the judgment
obligor denies or claims an interest in the property adverse to him, the court may: (a) order judgment obligee to institute
an action against such person or corporation for the recovery of such interest or debt (b) forbid a transfer / disposition of
such interest / debt within 120 days from notice of the order (c) punish disobedience of such order as for contempt. The
order may be modified or vacated at any time by the court that issued it, or by the court in which the action is brought,
upon terms as may be just.721

WHAT IS TO BE DONE AFTER JUDGMENT IS SATISFIED


1. Entry of satisfaction of judgment by the Clerk of Court in Court Docket and Execution Book upon a return of the
writ indicating satisfaction or admission of satisfaction by the judgment oblige or counsel. 722

2. It can also be entered upon demand of judgment obligor when judgment is satisfied in fact or upon notice /
motion, the court may order entry without admission 723

EFFECT OF JUDGMENTS OR FINAL ORDERS

1. The effect of a judgment / final order rendered by a court in the Philippines, having jurisdiction to pronounce the
same.

(a) In case of a judgment / final order against a specific thing, or in respect to probate of a will or administration of the
estate of a deceased person, or in respect to personal, political or legal condition / status of a particular person or his
relationship to another, the judgment or final order is conclusive upon the title to the thing, the will, administration status or
relationship of the person. However, probate or granting of letters of administration shall only be prima facie evidence of
the death of the testator.724

(b) Other cases, judgment / final order is with RESPECT TO THE MATTER DIRECTLY ADJUDGED OR AS TO ANY
MATTER THAT COULD HAVE BEEN RAISED IN RELATION THERETO is CONCLUSIVE BETWEEN THE PARTIES
AND THEIR SUCCESSORS IN INTEREST BY TITLE SUBSEQUENT TO THE COMMENCEMENT OF THE ACTION OR
SPECIAL PROCEEDING LITIGATING FOR THE SAME THING, UNDER THE SAME TITLE AND IN THE SAME
CAPACITY.725

(c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been
adjudged in a former judgment / final order which appears on its face to have been so adjudged or which was actually and
necessarily included therein or necessary thereto.726

1.1 Paragraphs (a) and (b) are illustrative of the concept of res judicata that is also known as bar by prior judgment.
This exists when between the first case where judgment is rendered, and the second case where such judgment is
invoked, there is identity of parties, subject matter, and cause of action. When all three are present, the judgment on the
merits rendered in the first constitutes an absolute bar to the subsequent action.

1.2 Paragraph (c) is illustrative of what is known as conclusiveness of judgment, when between the first case
wherein judgment was rendered and the second case wherein such judgment is invoked, there is only identity of parties,
but there is no identity of cause of action, the judgment is thus conclusive in the second case, only as to the matters
actually and directly controverted and determined, and not as to matters merely involved therein. 727

1.3 CONCLUSIVENESS OF JUDGMENT, also known as PRECLUSION OF ISSUES or COLLATERAL ESTOPPEL


OR IMMUTABILITY OF JUDGMENTS espouses that issues actually and directly resolved in a former suit cannot again be
raised in any future case between the same parties involving a different cause of action. 728Once a case is decided with

720
Supra, Section 42, Rule 39
721
Supra, Section 43, Rule 39
722
Supra, Section 44, Rule 39
723
Supra, Section 45, Rule 39
724
Supra, Section 47 (a), Rule 39
725
Supra, Section 47 (b), Rule 39
726
Supra, Section 47 (c), Rule 39
727
Oropeza Marketing Corporation v Allied Banking Corporation, 393 SCRA 278
728
Tan v Court of Appeals, 363 SCRA 444
finality, the controversy is settled and the matter is laid to rest. The prevailing party is entitled to enjoy the fruits of victory
while the other party is obliged to respect the courts verdict and comply with it. 729

1.4 The doctrine of The law of the case states that whatever has once been irrevocably established as the
controlling legal rule of decision between the same parties, whether correct on general principles or not, so long as the
facts on which the decision was predicated continue to be the facts of the case before the court. 730 This principle generally
finds application in cases where an appellate court passes on a question and remands the case to the lower court for
further proceedings. The question thus settled by the appellate court becomes the law of the case upon a subsequent
appeal. Consequently, the court reviewing the succeeding appeal will not re-litigate the case but instead apply the ruling in
the previous appeal.731

2. Effect of a foreign judgment/final order: (a) If upon a specific thing, the judgment / final order is conclusive upon
title to the thing (b) If against a person it is presumptive evidence of a right between the parties and their
successors in interest by subsequent title (c) In either case, judgment / final order may be repelled by evidence of
want of jurisdiction, want of notice, collusion, fraud, clear mistake of fact / law. 732

3. Effect of judgment against a surety: When a judgment is rendered against a party who stands as surety for
another, the latter (principal) is also bound from the time he has notice of the action or proceeding, and an opportunity at
the suretys request to join in the defense.733

729
Siy v NLRC, GR No. 158971, August 25, 2005
730
Boiser v NTC, 169 SCRA
731
RCPI v Court of Appeals, GR No. 139763, April 26, 2006
732
Supra, Section 48, Rule 39
733
Supra, Section 46, Rule 39
APPEALS

PRELIMINARIES

1. As a general rule, the remedy to obtain a reversal or a modification of judgment on the merits is appeal. This is
true even if the error ascribed to the court is lack of jurisdiction over the subject matter, or exercise of power in excess
thereof, or grave abuse of discretion in the findings of law or fact set out in the decision. 734

2. The right to appeal is not part of due process but is a mere statutory privilege that has to be exercised only in the
manner and in accordance with the provisions of law. 735

3. Where the judgment or final order is not appealable, the aggrieved party may file the appropriate civil action under
Rule 65. An example is a judgment in summary proceeding case under the Family Code.

4. On appeal, a party may not change his theory of the case. 736 Hence, defenses not pleaded in the answer may not
for the first time be raised on appeal.737

4.1 A basic appellate rule is that the court shall not consider no error unless stated in the assignment of errors. 738

4.2 The exceptions to the rule are: (a) it is an error that affects jurisdiction over the subject matter (b) it is an error that
affects the validity of the judgment appealed from (c) it is an error that affects proceedings (d) it is an error closely related
to or dependent on an assigned error and properly argued in the brief, or (e) it is a plain and clerical error.

4.3 The Supreme Court is clothed with ample authority to review matters, even if they are not assigned as errors on
appeal if it finds that their consideration is necessary in arriving at a just decision of the case. 739

5. Payment of docket fees is mandatory for the perfection of an appeal.

5.1 Without payment, the court does not acquire jurisdiction over the subject matter of the action and the decision
sought to be appealed becomes final and executory. 740

5.2 However, the rule is qualified: (a) the failure to pay appellate docket fees within the reglementary period only
allows discretionary dismissal, not automatic dismissal of the appeal, (b) such power should be used in the exercise of the
courts sound discretion in accordance with the tenets of fair play and with great deal of circumspection considering all
attendant circumstances.

RULE 40- APPEALS FROM THE MTC TO THE RTC

WHERE CAN AN MTC DECISION BE APPEALED

1. A judgment / final order of the Municipal Trial Court is appealable to the Regional Trial Court exercising jurisdiction
over the area to which the Municipal Trial Court pertains.

2. In the appeal, the case title remains, but party appealing is designated as appellant, while the adverse party is
designated as the party-appellee.741

WHEN CAN APPEAL BE TAKEN

1. 15 days after notice to the appellant. If record on appeal is required 30 days after notice but the period can be
interrupted by a motion for reconsideration or for new trial, although no motion to extend time for its filing is allowed. 742

734
Association of Integrated Security Force of Bislig-ALU v Court of Appeals, 467 SCRA 483
735
Cu-Unjieng v Court of Appeals, 479 SCRA 594
736
Supra, Section 15, Rule 44
737
Commissioner of Internal Revenue v Migrant Pagbilao Corporation, GR No. 159953, October 12, 2006
738
Supra, Section 8, Rule 51
739
Boston Bank of the Philippines v Manalo, GR No. 158149, February 9, 2006
740
Regalado v Go, GR No. 167988, February 6, 2007
741
Supra, Section 1, Rule 40
742
Supra, Section 2, Rule 40
2. Note the fresh period rule that is now applicable to an appeal under Rule 40, Rule 41, Rule 43 and Rule 45,
which allows a party intending to appeal another 15 days from receipt of an order denying a motion for reconsideration or
new trial to file an appeal 743

HOW IS APPEAL TAKEN

1. By notice of appeal indicating parties, judgment or final order appealed from statement of the material dates
showing timeliness of the appeal.

2. By record on appeal, in special proceedings or cases allowing for multiple appeals, like probate or partition. The
record on appeal shall contain the following:

a. Full name of the parties stated in the caption including the judgment / final order from which appeal is taken

b. In chronological order, copies of all pleadings, petitions, motions, and all interlocutory orders as are related to the
appealed judgment / final order for proper understanding of the issue.

c. Data to show that appeal was filed on time

d. If issue of fact is to be raised, it should include reference the documentary evidence by exhibit taken on the issue
specifying the documentary evidence by exhibit nos. or letters and testimonial evidence by the names of the witnesses.
If the whole of it is included, a statement to such effect is sufficient.
744
e. If more than 20 pages include a subject index

3. Note that the requirement for a Approval of record on appeal 745 the trial court may approve it, if no objection is
filed by the appellee or upon its motion / appellee direct its amendment by the inclusion of omitted matters which are
deemed essential to the determination of the issue of law or facts involved in the appeal.If amendment is ordered, which
the appellant must comply with within the period stated, any extension or if none, within 10 days, submitting the redrafted
record for the approval of the Court. Where both parties are appellants, they may file a joint record on appeal. 746

4. Regardless of the mode of appeal, the adverse party is to be furnished with a copy.

WHEN PERFECTED

1. Perfection is determined by Section 9, Rule 41:

1.1 If by notice of appeal, it is perfected upon the filing of the notice in due time. The court loses jurisdiction upon
perfection and expiration of the time of appeal of other parties.

1.2 If by record on appeal, it is perfected upon approval of record on appeal filed in due time. Court loses jurisdiction
upon approval and expiration of time to appeal of other parties.

2. In either case, prior to transmittal of the records, the court may issue orders: (a)protection and preservation of the
rights of the parties not involving any matter litigated by the appeal (b)approve compromises (c) permit appeals of indigent
litigants (d)order execution pending appeal (e) allow withdrawal of appeal. 747

2.1 This is power is known as residual jurisdiction . This is also known as retained jurisdiction which is an extension
of the original jurisdiction of the court for certain specific purposes after perfection of the appeal but before transmittal of
the records or record on appeal.

3. In both cases, docket fees and other fees are also to be paid to the clerk of court of the court that rendered
judgment. Proof payment of the same shall be transmitted to the appellant court together with the records / record on
appeal. 748
743
Neypes v Court of Appeals, GR 141524, September 14, 2005
744
Supra, Section 6, Rule 41
745
Supra, Section 7, Rule 41
746
Supra, Section 8, Rule 41
747
Supra, Section 4, Rule 40
748
Supra, Section 5, Rule 40
3.1 Late payment of docket fees may be admitted when a party shows a willingness to abide by the Rules by
immediately paying the docket fee six days after filing a notice of appeal and beyond the period for perfecting an
appeal.749

3.2 Where delay in the payment of docket fee was not due to a desire to delay or defeat the ends of justice, late
payment thereof which causes no prejudice to anyone should not result in the dismissal of the appeal. 750

4. The record or record on appeal is transmitted by the clerk of court within 15 days from perfection, together with
transcripts / exhibits, which he will certify as complete.

4.1 A copy of the transmittal shall be furnished the parties. 751

WHAT HAPPENS UPON TRANSMITTAL TO THE RTC

1. Within 15 days from notice, appellant shall submit a memorandum briefly discussing errors imputed to the lower
court, copy furnished the adverse party. Within 15 days from receipt of appellants memorandum, appellee may file his
own memorandum. Failure of appellant shall be ground for dismissal of the appeal. Upon filing / expiration, the case is
submitted for decision on the basis of the record in Municipal Trial Court and the memoranda submitted by the parties. 752

2. When an appeal is taken from an order of the lower Court dismissing the case without trial on the merits, the
Regional Trial Court may affirm or reverse it as the case may be:

2.1 In case it is affirmed and ground of dismissal is lack of jurisdiction over the subject matter of the case, the
Regional Trial Court, if it has jurisdiction, shall try the case on the merits as if the case was originally filed with it. In case of
reversal, it shall be remanded back for further proceedings.

2.2 If it was tried on the merits, without jurisdiction, the Regional Trial Court on appeal shall not dismiss the case if it
has original jurisdiction, but shall decide the case in accordance with Section 7, without prejudice to the admission of
amended pleadings and additional evidence in the interest of justice. 753

RULE 41 APPEALS FROM REGIONAL TRIAL COURTS

1. An appeal may be taken from a judgment /final order that completely disposes of a case, or a particular matter
therein when declared by the Rules to be appealable but no appeal can be taken from:

(a) Order denying a motion for new trial or reconsideration. An appeal of judgment/final order is remedy or certiorari
under Rule 65. Note that this has been omitted as of December 27, 2007 754

(b) Order denying a petition for relief from judgment or similar motion. Certiorari under Rule 65 is remedy

(c) Interlocutory order. Certiorari under Rule 65 or mandamus is remedy

(d) Order disallowing or dismissing an appeal. Mandamus or petition for relief from judgment is the remedy

(e) Order denying a motion to set aside judgment by consent confession, compromise on the ground of fraud,
mistake, duress or any ground vitiating consent. A petition for relief or a petition to annul judgment under Rule 47 or
Certiorari under Rule 65 is the remedy

(f) Order of execution. Certiorari under Rule 65 is the remedy

(g) Judgment / final order in separate claims, counterclaims, cross claims 3 rd party claims, while main case is
pending, unless the court allows an appeal therefrom. The object is facilitate the trial of all issues.

749
Mactan Cebu International Airport Authority v Mangubat, 312 SCRA 466
750
Lopez v Court of Appeals, 75 SCRA 401
751
Supra, Section 6, Rule 40
752
Supra, Section 7, Rule 40
753
Supra, Section 8, Rule 40
754
A.M. No. 07-7-12-SC
(h) Order dismissing an action without prejudice. The remedy is to refile or certiorari under Rule 65. 755

2. That declaration of presumptive death is not appealable by the state or the other party.

2.1 Remedy of the spouse declared presumptively dead is to file affidavit of reappearance. 756

WHAT ARE THE MODES OF APPEAL OF A JUDGMENT OR FINAL ORDER OF A REGIONAL TRIAL COURT 757

1. Ordinary appeal refers to an appeal by notice of appeal of the decision of the Regional Trial Court in cases
decided in the exercise of its original jurisdiction raising question of fact or mixed questions of law and fact

1.1 The period of ordinary appeal is 15 days from notice of judgment / final order appealed from. If requiring a record
on appeal, it is 30 days. Said periods are interrupted by a motion for new trial or reconsideration but no extension of time
for their filing is allowed. Note that in habeas corpus cases the period is 48 hours from notice of judgment or final order 758
Note also the application of the fresh period rule.

1.2 Appellate court docket fees / lawful fees shall be paid within the period for taking an appeal to the clerk of court of
the court that rendered judgment but failure to pay is a ground for dismissal of the complaint 759

1.3 If Appeal is by Notice of Appeal, it must indicate parties, judgment or final order appealed from, and include a
statement of the material dates showing timeliness of the appeal. 760 or if by Record on Appeal it must comply with the
requirements as previously discussed in an appeal from the Municipal Trial Court to the Regional Trial Court. 761

1.4 Perfection of Appeal is as discussed under Rule 40. 762 Subsequently, it is the duty of the clerk of court of the
lower court within 30 days after perfection of all appeals to: (a) verify correctness of the original record / record on appeal
and make a certification as to correctness (b) verify completeness of records transmitted to appellate court (c) If
incomplete, take necessary measures as may be required to complete the records, availing of the authority that he or the
court may exercise for this purpose. (d) transmit the records to the appellate court. (e) then furnish parties of his
transmittal. 763

1.5 If efforts to complete fail, it shall be indicated in the letter of transmittal which exhibits / transcripts are not
included, the reasons why they were not transmitted and the steps taken to make them available.

1.6 It is likewise required that the transcripts be transcribed 764 and that the transmittal to include proof of payment of
docket fees.

1.7 Prior to transmittal of record / record on appeal, the court may motu propio or on motion to dismiss the appeal for
having been take out of time or for non payment of docket and other lawful fees within the reglementary period .765 If
transmitted already, the Court of Appeals may dismiss.

1.8 Other procedural requirements and disposition of the appeal are governed by Rule 44:

1.9 The title of the case shall remain, party appealing shall be referred to as appellant / adverse party-appellee. 766
Counsel / guardians ad litem of parties shall likewise be considered as such in Court of Appeals, when others appear or
are appointed, notice shall be filed and furnished adverse parties. 767

755
Supra, Section 1, Rule 41
756
Article 41, Family Code
757
Supra, Section 2, Rule 41
758
Supra, Section 3, Rule 41
759
Supra, Section 13, Rule 41
760
Supra, Section 5, Rule 41
761
Supra, Sections 6,7,8, Rule 41
762
Supra, Section 9, Rule 41
763
Supra, Section 10, Rule 41
764
Supra, Section 11 and 12, Rule 41
765
Supra, Section 13, Rule 41
766
Supra, Section 1, Rule 44
767
Supra, Section 2, Rule 44
1.10 If the records are not transmitted to the Court of Appeals within 30 days after perfection of the appeal, either party
may file a motion with the Regional Trial Court, with notice to the other, for transmittal. 768

1.11 Upon receipt by the Court of Appeals, the clerk shall docket the case and notify the parties. If appeal is by record
on appeal, within 10 days from receipt of notice, appellant must file with the clerk of court 7 clearly legible copies of
approved record on appeal and proof of service thereof to adverse party of 2 copies. Any unauthorized, alteration,
omission or addition shall be ground for dismissal of the appeal. 769

1.12 The Clerk of the Court of Appeals should also ascertain the completeness of the records. If incomplete, he shall
inform the court and recommend measures to complete the record within the shortest possible time but if it cannot be
completed due to insuperable or extremely difficult circumstances. The court, on its own or upon motion, may declare the
record sufficient to decide issues and explain reason for such declaration. 770

1.13 Once done, Briefs are to be filed: (a) The Appellants Brief must be filed within 45 days from notice that all
evidence, documentary / testimonial are attached to the record, 7 copies of the brief are to be filed attaching proof of
service of 2 copies to adverse party. 771 Where there are several parties, each counsel representing one or more but not
all may be served with 1 copy. If several counsel represent one party, service may be made on any one of them. 772 The
contents of the appellants brief are: (a) subject index (b)assignment of errors (c) statement of the case (d)statement of
facts (e)statement of issues (f) arguments (g) relief (f) if not by record on appeal, an appendix, copy of judgment / final
order appealed. 773

1.14 The Appellees Brief is to be filed within 45 days from receipt of Appellants Brief. It is required that 7 copies be
filed with proof of service of 2 copies on appellant. The contents of the appellees brief are: (a) subject index (b) statement
of facts, either a statement of acceptance or counter-statement of facts (c) Arguments 774

1.15 A Reply Brief may be filed by appellant within 20 days from receipt of the Appellees Brief. 775 No extension of time
to file breifs is allowed except for good and sufficient cause, and only if filed before expiration of the time sought to be
extended776 In lieu of briefs, memoranda may be required is required in certiorari, prohibition, madamus, quo warranto,
hebeas corpus within a non-extendible period of 30 days from notice that all evidence is attached to the record. Failure of
appellant to file his memoranda is ground to dismiss the appeal. 777

1.16 Questions of law or fact may be raised in the appeal, whether or not a motion for new trial has been filed and must
within the issues framed by the parties. 778 As a rule, a party who deliberately adopts a certain theory upon which the case
is tried and decided by the lower court will not be permitted to change his theory on appeal. Points of law, theories, issues,
and arguments not brought to the attention of the lower court need not be , and ordinarily not be, considered by a
reviewing court, as these cannot be raised for the first time at such late stage. Basic considerations of due process
underlie this rule.779

1.17 In Criminal Cases, note the possibility of the filing of two notices of appeal when the penalty imposed by the
Regional Trial Court is life imprisonment or reclusion perpetua, appeal is by notice to the Court of Appeals, and by notice
again to the Supreme Court. If the penalty is death, it is automatically reviewed by the Supreme Court, but such shall be
made by the Court of Appeals, which shall render judgment, then certify it to the Supreme Court, who will then enter the
same.780

2. Petition for Review is an appeal to the Court of Appeals of judgment / final order of the Regional Trial Court in the
exercise of its appellate jurisdiction under Rule 42

768
Supra, Section 3, Rule 44
769
Supra, Section 4, Rule 44
770
Supra, Sections 4 and 5, Rule 44
771
Supra, Section 7, Rule 44
772
Supra, Section 11, Rule 44
773
Supra, Section 13, Rule 44
774
Supra, Section 14, Rule 44
775
Supra, Section 9, Rule 44
776
Supra, Section 12, Rule 44
777
Supra, Section 10, Rule 44
778
Supra, Section 15, Rule 44
779
BPI v Leobrera, 416 SCRA 15
780
People v. Mateo, 433 SCRA 640, AM No. 00-5-03-SC, October 15, 2004
2.1 It is initiated by the filing of a Verified Petition for Review with the Court of Appeals, paying at the same time to the
Clerk of Court of Appeals the corresponding docket fees and lawful fees, depositing 500 for costs, furnishing the Regional
Trial Court and adverse party with a copy of the Petition.

2.2 It is to be filed within 15 days from notice of decision sought to be reviewed or denial of motion for new trial or
motion for reconsideration. Upon payment of docket fees and deposit for costs and before the expiration of the period , the
Court of Appeals may grant an extension of 15 days. No further extension can be given unless for the most compelling
reason, but in no case to exceed 15 days. 781

2.3 FORM, CONTENTS, NUMBER OF COPIES. 7 copies are to be filed, indicating the original copy intended for the
Court of Appeals containing (a)full names of parties, without impleading the lower court / judges (b)specific material dates
indicating that it is filed on time (c) statement of matters, issues, specification of errors of fact / law and reasons /
arguments relied upon (d)accompanied by clearly legible duplicate copies or true copies of judgment of the lower courts,
certified correct by Regional Trial Court clerk of court, pleadings and other material portions supporting the allegations of
the petition (e) certification against forum shopping / verification. NOTE: Failure to pay fees or comply with the
requirements shall be sufficient ground for dismissal.782

2.4 The appeal is deemed PERFECTED upon timely filing of the petition and payment of docket fees. The RTC loses
jurisdiction upon perfection of the appeal and lapse of time to appeal by the other parties. The Regional Trial Court
continues to have RESIDUAL JURISDICTION until the same has been given DUE COURSE. 783

2.5 Note that except in cases covered by the Rule on Summary Procedure, appeal shall stay the judgment / final
order unless Court of Appeals or the Rules provide otherwise

2.6 ONCE FILED, the Court of Appeals may: (a) Require the respondent to file a comment, not a motion to dismiss,
within 10 days from notice (b)Dismiss the petition if found to be patently without merit, prosecuted manifestly for delay, or
questions raised therein are too unsubstantial to require consideration. 784

2.7 The COMMENT should be filed in 7 copies, accompanied by certified true copies of such MATERIAL PORTIONS
OF THE RECORD AND OTHER SUPPORTING DOCUMENTS, stating: (a)Statement of whether or not he accepts the
statement of matters (b) Point out the insufficiencies / inaccuracies (c) State reasons why it should not be given due
course. Copy of which must be served on adverse party. 785

2.8 A petition is given DUE COURSE when upon the filing of the comment or expiration of the period to file, the Court
of Appeals finds PRIMA FACIE that the lower court has committed an error of fact / law that will warrant a reversal /
dismissal. CONSEQUENTLY, the Court of Appeals, if it deems necessary, will order the elevation by the clerk of the
Regional Trial Court of the entire record within 15 days from notice. 786

2.9 IT IS SUBMITTED FOR DECISION after the filing of last pleading or memorandum. Prior to that though, the Court
of Appeals may set it for oral argument / or require memoranda to be submitted within a period of 15 days from notice. 787

3. Appeal by Certiorari or Petition for Review on Certiorari which should involve a pure question of law direct to the
Supreme Court under Rule 45

3.1 A Question of Law is one that requires interpretation or application of a law, while a Question of Fact is one that
pertains to a resolution of a factual dispute.

3.2 There is a question of law in a given case when the doubt or difference arises as to what the law is pertaining to a
state of acts, and there is a question of fact when the doubt arises as to the truth or falsity of alleged facts. 788

3.3 This is initiated by the filing of a Verified Petition for Review on Certiorari raising only questions of law. This mode
of appeal is available to question judgment / resolutions of the Court of Appeals, the Sandiganbayan, a Regional Trial
Court, and other Courts whenever authorized by law.789
781
Supra, Section 1, Rule 42
782
Supra, Sections 2 and 3, Rule 41
783
Supra, Section 8, Rule 42
784
Supra, Section 4, Rule 42
785
Supra, Section 5, Rule 42
786
Supra, Section 6, Rule 41
787
Supra, Section 9, Rule 42
788
Manila Bay Club Corporation v Court of Appeals, 245 SCRA 715
789
Supra, Section 1, Rule 45
3.4 The TIME FOR FILING is 15 days from notice of the judgment, final / order, or resolution or of denial of
petitioners motion for new trial / reconsideration. On motion and with full payment of docket fees and deposit of costs, the
Supreme Court on justifiable reason may grant an extension of 30 days within which to file the petition.

Docket fees and proof of service of the petition on the lower court and adverse party must accompany the filing of the
petition.790

3.5 18 copies of the petition are required to be filed, indicating the original copy for the court. It should contain: (a) full
names of parties (petitioner / respondent) without impleading court / judge (b) indicate material dates (c)concise
statements of the matters involved and the reason / arguments relied upon for the allowance of the petition (d) clearly
legible copies of judgment / final order / reconsideration or certified true copy and other material portion supporting the
record (e) Certificate against forum shopping and verification 791

3.6 UPON FILING, the Supreme Court can:

(a) DISMISS (1) for failure to comply with the requirements regarding payment, proof of service, contents and
documents (2) on its own initiative because it is without merit, prosecuted for delay, or issues are too unsubstantial to
require consideration, OR

(b) ALLOW REVIEW, which is not a matter of right but is discretionary, when there are special / important reasons
therefor: EXAMPLES- (1) when the court a quo has decided a matter of substance not therefore determined by the
Supreme Court or decided in a way not in accord with the law or applicable decisions of the Supreme Court (2) when
court a quo has so far departed from the accepted and usual course judicial proceedings, or so far sanctioned such
departure by a lower court, as to call for an exercise of the power of supervision. 792

3.7. If given DUE COURSE, the Supreme Court can: (a) Require elevation of the records / or specified portions
thereof within 15 days from notice 793 (b) Require filing of pleadings, briefs, memoranda or documents as it may deem
necessary within periods / conditions it may consider appropriate and impose sanctions for non-filing / non-compliance or
unauthorized filing. This ALSO applies to a determination as to whether it should be dismissed or denied. 794 The RULE
APPLIES TO BOTH CIVIL / CRIMINAL ACTIONS, except in cases where penalty is death, reclusion perpetua / life
imprisonment.795

3.8 The exceptions to the general rule that only questions of law may be raised in a petition for review are:(a) when
the conclusion is a finding grounded entirely on speculation, surmises, or conjectures; (b) when the inference made is
manifestly mistaken, absurd, or impossible; (c) where there is a grave abuse of discretion; (d) when the judgment is based
on a misapprehension of facts; (e) when the findings of fact are conflicting; (f) when the Court of Appeals, in making its
findings, went beyond the issue of the case and the same is contrary to the admissions of both appellant and appellee; (g)
when the findings of the Court of Appeals are contrary to those of the trial courts; (h) when the findings of facts are
conclusions without citation of specific evidence on which they are based; (i) when the facts set forth in the petition as well
as in the petitioners main and reply briefs are not disputed by the respondents; (j) when the finding of fact of the Court of
Appeals is premised on the supposed absence of evidence but is contradicted by the evidence on record; and (k) when
the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly
considered, would justify a different conclusion.796

4. By Petition for Review under Rule 43 in a case decided by the Regional Trial Court sitting as a commercial
court.797

4.1 Applies primarily to appeals from the Court of Tax Appeals and other quasi-judicial agencies to the Court of
Appeals, but is not applicable to judgments / final orders under the Labor Code. 798

790
Supra, Sections 2 and 3, Rule 45
791
Supra, Section 4, Rule 45
792
Supra, Sections 5 and 6, Rule 45
793
Supra, Section 8, Rule 45
794
Supra, Section 7, Rule 45
795
Supra, Section 9, Rule 45
796
Martinez v Court of Appeals, 358 SCRA 38
797
A.M. No. 04-9-07-SC, September 14, 2004
798
Supra, Sections 1 and 2, Rule 43
4.2 The appeal can include questions of fact, law or mixed questions of law and fact. 799

4.3 The appeal shall be taken within fifteen (15) days from notice if the award, judgment, and final order of resolution,
or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of the petitioners
motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only
one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of the payment of the full
amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional
period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for
the most compelling reason and in no case to exceed fifteen (15) days. 800

4.4 All other procedural matters and requirements are similar to a Petition for Review under Rule 42 EXCEPT that an
appeal under this Rule shall not stay the award, judgment, final order or resolution unless the Court of Appeals deems
otherwise.801

4.6 In summary judicial proceedings under the Family Code, there is no reglementary period within which to perfect
an appeal, precisely because judgments rendered thereunder, by express provision of Section 247 of the Family Code,
are immediately final and executory. 802 Appeal by notice of appeal is erroneous. The Court of Appeals should have
dismissed as it had no jurisdiction to review on appeal. Per Justice Panganiban, Certiorari under Rule 65 is the remedy of
the State.

PROCEDURE BEFORE THE COURT OF APPEALS

RULE 46 ORIGINAL CASES FILED WITH THE COURT OF APPEALS

1. Parties are to be designated as petitioner / respondent 803 and is to apply to cases of Certiorari, Prohibition,
Mandamus, Quo Warranto and to petitions for annulment of judgment under Rule 47 804

CONTENTS OF PETITION FILING EFFECTS OF NON COMPLIANCE

1. Petitions filed before the Court of Appeals must contain the following: (a) identification of the parties, a concise
statement of matters involved, the factual background of the case, and the grounds relied upon for the relief prayed for
(b)statement of material dates, and in a Rule 65 Petition, material dates are dates of notice of judgment or final order,
when a motion for new trial or reconsideration was filed, if any, and when notice of denial was received (c) clearly legible
duplicate originals or certified true copy of the attachments (d)certification against forum shopping (5)docket fees / deposit
for cost.805

1.1 Failure to comply is sufficient ground for dismissal of the petitions.

2. A certified true copy is one the certification of which is made by the proper clerk of court or his duly authorized
representative.806

HOW DOES THE COURT ACQUIRE JURISIDICTION

1. Jurisdiction over the person or the respondent is acquired by service of order or resolution indicating initial action
on the petition or voluntary submission to jurisdiction.807

ACTION TO BE TAKEN BY THE COURT OF APPEALS

1. The court may dismiss the petition outright with specific reasons OR require the filing of a comment within 10
days from notice.
799
Supra, Section 3, Rule 43
800
Supra, Section 4, Rule 43
801
Supra, Section 12, Rule 43
802
Republic v Bernardez-Lorino, 449 SCRA 57
803
Supra, Section 1, Rule 46
804
Supra, Section 2, Rule 46
805
Supra, Section 3, Rule 46
806
Paras v Baldado, 354 SCRA 141
807
Supra, Section 4, Rule 46
1.1 Only pleadings required to be filed may be filed. Other pleadings will require leave of court. 808

2. If factual issues are to be resolved, the Court of Appeals can conduct hearings or delegate reception of evidence
on such issues to any of its members or to an appropriate court / agency / office. 809

3. If comment is not filed, it may be decided on the basis of the record without prejudice to any disciplinary action
against disobedient party.810

4. The court, if the petition is not dismissed outright:

4.1 Can call the parties / counsel to a preliminary conference, the object of which is to : (a) consider compromise
agreements, except when case is not allowed to be compromised (b) define, simplify and clarify issues (c)formulate
stipulation of facts and admissions of documentary exhibits, limit the number of witnesses in cases falling within its original
jurisdiction or those within its appellate jurisdiction where a motion for new trial is granted on newly discovered evidence
(d) other matters that may aid in prompt disposition of the case. 811

4.2 Record of proceedings is made and a Resolution embodying actions shall be issued812 which shall be binding
upon parties and control subsequent proceedings unless within 5 days from notice, it can be shown by valid cause why it
should not be followed or there is need for modifications to prevent manifest injustice 813

4.3 At its own instance or by motion, to hear the parties in oral argument on the merits of the case or on any material
incident and is limited to such matters as the court may specify in its order or resolution. 814

4.4 In the conduct of oral arguments, unless authorized, only 1 counsel may argue for a party. Duration, sequence
and all related matters shall be as directed by the Court. 815

4.5 Motions are not set for hearing, and unless directed by the court, no hearing or oral arguments shall be allowed in
support thereof. The adverse party may file objections within 5 days from notice. Upon expiration of the period, it is
submitted for resolution.816

RULE 47-ANNULMENT OF JUDGMENT

1. Annulment of judgment covers judgments of the Regional Trial Court for which the ordinary remedies of new trial,
appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner 817

1.1 An important condition for the availment is that the petitioner failed to move for new trial, or appeal from, or file a
petition for relief against, or take other appropriate remedies through no fault attributable to him.

1.2 If he failed to avail of the other remedies through his own fault, he would then benefit from his inaction or
negligence.818

1.3 He must allege non availment of other remedies through no fault of the petitioner, otherwise the petition will be
dismissed.819

1.4 Note that the correctness of the judgment is not in issue in a petition for annulment of judgment. 820

808
Supra, Section 5, Rule 46
809
Supra, Section 6, Rule 46
810
Supra, Section 7, Rule 46
811
Supra, Section 1, Rule 48
812
Supra, Section 2, Rule 48
813
Supra, Section 3, Rule 48
814
Supra, Section 1, Rule 49
815
Supra, Section 2, Rule 49
816
Supra, Section 3, Rule 49
817
Supra, Section 1, Rule 47
818
Manipor v Ricafort, 407 SCRA 298
819
Ancheta v Ancheta, 424 SCRA 725
820
Republic v Heirs of Sancho Magdato, 340 SCRA 115
2. It is a remedy that may be availed of by those who are not even parties to the judgment or to annul even
judgments that have been fully executed.821

3. It is available only on grounds of: (a) Extrinsic Fraud but only when it was not availed of or could have been
availed of in a motion for new trial or petition for relief or (b) Lack of Jurisdiction

3.1 There is extrinsic fraud when the unsuccessful party had been prevented from exhibiting fully his case, by fraud or
deception practice upon him by his opponent, as keeping him away from the court, or where the defendant never had
knowledge of the suit, being kept in ignorance by the acts of the plaintiff. 822

4. The period for its filing if based on extrinsic fraud is within 4 years from its discovery, or if based on lack of
jurisdiction before it is barred by laches or estoppel.823

FILING / CONTENTS OF THE PETITION

1. Filing is by verified petition alleging therein with particularity, the facts and the law relied upon for annulment as
well as supporting petitioners good and substantial cause of action / defense, as the case may be. Containing (a) certified
true copy of judgment / final order / resolution shall be attached to the original copy intended for the court (b) affidavits of
witnesses (c) certification against forum shopping824

WHAT THE COURT OF APPEALS WILL DO UPON FILING

1. If no substantial merit, it will be dismissed outright with specific reasons for such dismissal.

2. If prima facie merit be found, it shall be given due course and summons shall be served on the respondent. If so,
procedure in ordinary civil cases shall be followed but reception may be referred to a member of the Court or a Regional
Trial Court judge.825

EFFECT OF JUDGMENT IN A PETITION FOR ANNULMENT

1. It shall set aside the questioned judgment / final order / resolution and render the same null and void, without
prejudice to the re-filing of the original action in the proper court .

1.1 However, where it is set aside by reason of extrinsic fraud, the court on motion, may order the trial court to try the
case again as if a timely motion for new trial has been granted therein. 826

1.2 The prescriptive period for the re-filing of the original action shall be deemed suspended from the filing of such
original action until finality of the judgment of annulment. However, the prescriptive period is or shall not be suspended
where extrinsic fraud is attributable to the plaintiff is original action. 827

SCOPE OF RELIEF

1. It may include award of damages, attorneys fees and other relief. If already executed, restitution or other relief as
justice / equity may warrant.828

2. It also applies to a petition for annul the judgment of an MTC but is to be filed with the RTC and treated as an
ordinary civil action.829

2.1 All sections except Section 5 pertaining to dismissal or determination of prima facie merit shall apply.

RULE 50 - GROUNDS FOR DISMISSAL BY THE COURT OF APPEALS


821
Malolos v Dy, 325 SCRA 827
822
Leonardo v ST Best, 422 SCRA 347
823
Supra, Section 3, Rule 47
824
Supra, Section 4, Rule 47
825
Supra, Sections 5 and 6, Rule 47
826
Supra, Section 7, Rule 47
827
Supra, Section 8, Rule 47
828
Supra, Section 9, Rule 47
829
Supra, Section 10, Rule 47
1. In all cases that come before it, and besides on a finding that the case is without merit, prosecuted for delay or
issue is too unsubstantial to merit consideration, on motion of the court or the appellee, it may dismiss the petition on the
basis of:

1.1 Failure of record on appeal to show on its face that appeal was taken within period fixed by the Rules.

1.2 Failure to file notice of appeal or record on appeal within period within the period prescribed by the Rules.

1.3 Failure to pay docket fees as provided under Section 5, Rule 40 and Section 4, Rule 41.

1.4 Unauthorized alterations, omissions, additions on record on appeal as provided under Section 4, Rule 44

1.5 Failure of appellant to serve and file required number briefs or memoranda within provided time by these Rules

1.6 Absence of specific assignment of errors or page references to the record as required by Section 13,
paragraphs(a),(c),(d), and (f) of Rule 44

1.7 Failure of appellant to take necessary steps for the correction or completion of the records within time limited by
the Court

1.8 Failure to appear at preliminary conference under Rule 48, or comply with orders, circulars or directives of the
Court without justifiable cause

1.9 The fact that order / judgment appealed from is not appealable. 830

DISMISSAL OF IMPROPER APPEAL

1. An appeal under Rule 41 from the Regional Trial Court to the Court of Appeals raising only questions of law shall
be dismissed as issues purely of law are not reviewable by the Court of Appeals

2. An appeal by notice of appeal instead of petition for review from a Regional Trial Court exercising appellate
jurisdiction shall be dismissed

3. An appeal erroneously taken to Court of Appeals shall not be transferred but shall be dismissed outright. 831

WITHDRAWAL OF AN APPEAL

1. An appeal may be withdrawn as of right at any time before the filing of the appellees brief.

1.1 Thereafter, only upon discretion of the Court.832

RULE 51 - JUDGMENT

WHEN SUBMITTED FOR JUDGMENT

1. In Ordinary Appeals:

1.1 Where no hearing on merits is held, upon filing of the last pleading, brief, memoranda or expiration of period to
file.

1.2 Where a hearing is held, upon termination of hearing or upon filing of the last pleading, memoranda as may be
required or permitted, or expiration of period to file

2. In Original Actions or Petitions for Review

2.1 Where no comment is filed, upon expiration of the period to file comment

830
Supra, Section 1, Rule 50
831
Supra, Section 2, Rule 50
832
Supra, Section 3, Rule 50
2.2 Where no hearing, same as 1.1

2.3 Where hearing is held, same as 1.2833

HOW JUDGMENT IS RENDERED

1. Judgment is rendered by members of the court who participated in the deliberations on the merits before
assignment to a member for writing of the decision.834

2. Participation of all 3 justices shall be necessary at deliberation and unanimous vote shall be required for
pronouncement. If not, the clerk shall enter the vote of dissenting justices in the record. Thereafter, Chairman of the
division refers it to the Presiding Justice, who will designate 2 justices by raffle to sit temporarily and to form a special
division of five (5) justices. The participation of all is required for deliberation. Concurrence of majority is required for
pronouncement.835

2.1 Note that in rendering judgment, harmless errors or those which do not affect the substantial rights of the
parties836 or errors that are not assigned will not be considered unless they affect jurisdiction, validity of judgment, and of
proceedings.837

2.2 Harmless Error Doctrine means that any error or defect which does not affect substantial rights will be
disregarded by the reviewing court or tribunal. It is followed to deal with evidence improperly admitted during trial wherein
its damaging quality and impact to the substantial rights of the litigant are examined. If deemed slight and insignificant, the
error is disregarded.838 It is not a ground for granting of a new trial or for setting aside, modifying, or disturbing a judgment
or final order unless the refusal appears to the Court inconsistent with substantial justice.

3. Judgments of the Court of Appeals in the exercise of appellate jurisdiction may affirm, reverse, or modify the
judgment or final order appealed from. It may also order or direct a new trial to be held or that further proceedings be
taken.839 The decision must state clearly and distinctly the findings of fact and conclusions of law on which it is based,
which may be contained in the resolution itself or adopted from those set forth in the judgment, final order appealed
from.840

PROCEDURE AFTER JUDGMENT

1. After signing by the justices, it shall be delivered to the clerk of court, who shall indicate thereon the date of
promulgation and cause true copies thereof to be served upon the parties or counsel. 841

2. If no appeal, or motion for new trial or reconsideration is filed within the period, the judgment or final resolution
shall be entered in the book of Entries of Judgment. Judgment or final resolution shall be deemed executory as of the date
of entry. The record shall contain the dispositive portion, signed by the clerk with a statement that it is final and
executory.842

3. Execution shall as a rule issue upon a motion in the proper court upon its entry. In appealed cases, where the
motion is filed with the Court of Appeals at the time that it is in possession of the original records or record on appeal, the
resolution granting the motion shall be transmitted to the lower court from which the case originated, together with certified
copy of the judgment to be executed, with a directive to said court to issue the proper writ for its enforcement. In original
actions, the writ shall be accompanied by a certified true copy of the entry of judgment and addressed to appropriate
officer for enforcement.843

RULE 52- MOTIONS FOR RECONSIDERATION BEFORE THE CA


833
Supra, Section 1, Rule 51
834
Supra, Section 2, Rule 51
835
Supra, Section 3, Rule 51
836
Supra, Section 6, Rule 51
837
Supra, Section 8, Rule 51
838
People v Teehankee, 269 SCRA 54.
839
Supra, Section 4, Rule 51
840
Supra, Section 5, Rule 51
841
Supra, Section 9, Rule 51
842
Supra, Section 10, Rule 51
843
Supra, Section 11, Rule 51
1. Judgments of the Court of Appeals can be the subject of reconsideration within fifteen (15) days from notice
thereof, with proof of service to the adverse party. 844

2. No second motion for reconsideration will be entertained. 845

3. It is to be resolved within sixty (60) days from submission for resolution 846 and while pending, shall stay the
execution unless for good reason, court directs otherwise. 847

RULE 53- MOTION FOR NEW TRIAL

1. It can be filed at any time after appeal from the lower court has been perfected and before the Court of Appeals
loses jurisdiction, on the ground of newly discovered evidence which could not have been discovered prior to the trial in
the court below by the exercise of due diligence and which is of such a character as would probably change the result.
The motion must be accompanied by affidavits showing the facts constituting the grounds and the newly discovered
evidence.848

2. The Court of Appeals shall then consider the evidence and that adduced at the trial, to determine if it will grant or
refuse a new trial, or make such order, with notice to both parties, as to the taking of further testimony, either orally in
court, by depositions, or render such other judgment as ought to be rendered upon terms it may deem just. 849 If granted,
the procedure shall be the same as that granted by a Regional Trial Court. 850

2.1 Motion should be resolved within 90 days from the date it is declared to be submitted. 851

OTHER MATTERS

RULE 54 INTERNAL BUSINESS

1. Allotment of cases shall be among the different divisions for hearing and decision.

2. The Court of Appeals En Banc shall make proper orders or rules to govern allotment, the constitution of such
divisions, the regular rotation of justices, filling of vacancies, and other matters. Such will continue in force and repealed or
altered by it or the Supreme Court.852

3. A majority of the court shall constitute a quorum for sessions en banc and a majority of the members present shall
be necessary to pass a resolution. Three members of a division shall constitute a quorum for sessions of a division and
the affirmative vote of three members shall be necessary for pronouncement of judgment/resolution, which shall be
reached in consultation among them before the writing of the opinion by any member of the division. 853

RULE 55 PUBLICATION OF JUDGMENT/FINAL ORDER/RESOLUTIONS

1. Judgments and Final Resolutions shall be published in the Official Gazette and in the Reports officially authorized
by the Court, in the language originally written, together with a syllabi. If not so published, a memoranda shall be made
and published in the like manner. 854
855
1.1 The publication is to be prepared by the Reporter.

844
Supra, Section 1, Rule 52
845
Supra, Section 2, Rule 52
846
Supra, Section 3, Rule 52
847
Supra, Section 4, Rule 52
848
Supra, Section 1, Rule 53
849
Supra, Section 2, Rule 53
850
Supra, Section 4, Rule 53
851
Supra, Section 3, Rule 53
852
Supra, Section 1, Rule 54
853
Supra, Section 2, Rule 54
854
Supra, Section 1, Rule 55
855
Supra, Section 2, Rule 55
1.2 Those of the Supreme Court are called Philippine Reports, while those of the Court of Appeals are called Court of
Appeals Reports. 856

RULE 56 PROCEDURE IN THE SUPREME COURT

ORIGINAL CASES

1. The cases cognizable by the Supreme Court are Certiorari, Mandamus, Prohibition, Quo Warranto, Habeas
Corpus, Disciplinary Actions against members of the Judiciary and Attorneys, Cases affecting Ambassadors, Public
Ministers or Consuls.857

2. In resolving the cases, applicable rules in the Court of Appeals are also applicable in the Supreme Court. 858

APPEALED CASES

1. The only mode of appeal to the Supreme Court is by Petition for Review on Certiorari, except in criminal cases
where the penalty is death, reclusion perpetua, and life imprisonment 859

1.1 Except in appeal of criminal cases where penalty is death, reclusion perpetua, life imprisonment, appeal by
Notice of Appeal, will be dismissed860

2. If by certiorari from the Regional Trial Court to the Supreme Court, raising issues of fact may be referred to the
Court of Appeals for decision or appropriate action. Determination of the Supreme Court as to whether or not there are
issues of fact is final.

3. All appealed cases shall be governed by and disposed of in accordance with the applicable provisions of the
Constitution, Rule 45 (Petition for Review on Certiorari) Rule 48 (Preliminary Conference), Sections 1 (When submitted) 2
(Who renders judgment) and 5 to 11 ( Form to Execution) Rule 51, Rule 52 (Motion for Reconsideration) and Rule 56. 861

GROUNDS FOR DISMISSAL OF AN APPEAL

1. An appeal may, motu propio or upon motion of respondent, be dismissed on (a) failure to take appeal within the
reglementary period (b) lack of merit (c) failure to pay docket and lawful fees (d) failure to comply with requirements of
proof of service and documents (e) failure to comply with any circular, directive or order of the Supreme Court without
justifiable cause (f) error in the choice or mode of appeal (g) that it is not appealable to the Supreme Court 862

IF SUPREME COURT OPINION IS EQUALLY DIVIDED OR NECESSARY MAJORITY CANNOT BE OBTAINED

1. It will be deliberated further. If after deliberation, no decision is reached, the original action commenced in the
court shall be dismissed. If appealed, it shall stand affirmed. If on incidental matters, it shall be denied. 863

PROVISIONAL REMEDIES

PRELIMINARIES

1. Provisional Remedies are temporary, auxiliary and ancillary remedies available to a litigant for the protection and
preservation of his rights pending the main action.

1.1 They are issued in the form of writs or processes and they presuppose the existence of a principal action,
although the remedies of Injunction, Receivership and Replevin have been allowed to exist as principal actions in proper
cases.

856
Supra, Section 3, Rule 55
857
Supra, Section 1, Rule 56
858
Supra, Section 2, Rule 56
859
Supra, Section 3, Rule 56
860
Supra, Section 6, Rule 56
861
Supra, Section 4, Rule 56
862
Supra, Section 5, Rule 56
863
Supra, Section 7, Rule 56
1.2 These remedies are to be granted by the court where the principal action is pending. Hence, an MTC has the
power to grant a provisional remedy. The exception being support pendente lite in an action for support as this is
incapable of pecuniary estimation and is thus only within the jurisdiction of an RTC.

2. The purpose for resort to provisional remedies are: (a) preserve and protect rights or interests while the main
action is pending (b) secure the judgment (c) preserve the status quo (d) preserve the subject matter of the action.

3. The enumeration of provisional remedies is not exclusive as there is jurisprudence to allow the court to exercise
its equity jurisdiction when the law is silent, obscure or insufficient. Examples are the grant of visitation rights or temporary
custody of a child864or deposit of amount paid in an action for rescission to prevent its dissipation. 865

RULE 57 PRELIMINARY ATTACHMENT

Rule 57 does not provide any lifetime for a writ of preliminary attachment unlike a writ of execution (See: Roque vs. CA, 93 SCRA
540). What the law provides are enforcing the writ without delay and making sheriffs return thereon without delay.
Preliminary attachment shall be discharged in any of the following instances:
1. property attached is exempt from execution, hence, it is also exempt from preliminary attachment (Sections 2 and 5, Rule 57);
2. applicant has made cash deposit or filed counter bond in court (Section 12, Rule 57);
3. attachment was improperly or irregularly issued or enforced (Section 13, Rule 57);
4. attachment bond is insufficient (Section 13, Rule 57);
5. attachment affidavit is defective (Section 13, Rule 57);
6. attachment is excessive, but discharge is limited to the excess (Section 13, Rule 57); and
7. judgment in the main case is rendered against the attaching party (Section 19, Rule 57)
When the preliminary attachment is issued upon a ground which is at the same time the applicants cause of action: ie., an action against a party
who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought, the only way it can be dissolved is
by a counter-bond. (FCY Const., Group Inc. vs. CA, 324 SCRA 270)
The merits of the complaint are not triable in a motion to discharge an attachment. (CBTC vs. CA, 197 SCRA 663)

WHAT IS PRELIMINARY ATTACHMENT

1. It is a provisional remedy issued upon order of the court where the action is pending to levy upon the properties of
the defendant therein, the same to be held thereafter by the sheriff as security for the satisfaction of whatever judgment
might be rendered in favor of the attaching creditor.

2. It can also extend to property of the defendant in the hands of 3 rd persons or money owed by 3 rd persons to the
defendant. This is also known as garnishment.

3. If judgment has become final and executory, there is a final attachment which is also known as Levy on Execution

4. It can be availed of at any time before entry of judgment.

DISTINCTIONS BETWEEN PRELIMINARY ATTACHMENT AND GARNISHMENT

1. In Preliminary Attachment there are two parties, the plaintiff or proper party and the defendant, while in
Garnishment, there is an additional party in the person of the garnishee. In the former, property is actually seized and a
lien is created thereon, while in the latter, there is no actual seizure.

GROUNDS FOR ATTACHMENT

1. Action for recovery of money or damages other than moral / exemplary, on a cause of action that arise from law,
contract, quasi contract, delict, or quasi-delict against a party who is about to depart from the Philippines with intent to
defraud creditors.

864
Tan v Adre, 450 SCRA 145
865
Reyes v Lim, 408 SCRA 560
1.1 It is required that the movant be able to show that the defendant is about to depart from the Philippines with
intent to defraud creditors.866

1.2 It cannot issued when the amount of money or damages is not specified. 867

2. Action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer,
an officer of a corporation, or an attorney, factor, broker, agent or clerk in the course of his employment as such, or by any
person in a fiduciary capacity, or for willful violation of such duty.

2.1 Examples are when an officer of a corporation who has control of its funds will utilize the same for his personal
use or when a person appropriates the entire property knowing that a portion thereof does not belong to him.

3. Action to recover possession of property unjustly or fraudulently taken, detained or converted when the property,
or any part thereof, has been concealed, removed or disposed of to prevent its being found or taken by the applicant or
authorized person.

3.1 The property referred to may be either real or personal property.

3.2 Distinguishing it from replevin: the object is to attach real or personal property belonging to the defendant to
secure satisfaction of his judgment for recovery, while in replevin, the object of the movant is the recovery of his own
property.

4. Action against a party guilty of fraud in contracting the debt or incurring the obligation upon which the action is
brought or in the performance thereof.

4.1 The fraud should be committed either upon contracting the debt or incurring the obligation sued upon or in the
performance thereof. A debt is fraudulently contracted if at the time of contracting it, the debtor has a preconceived plan or
intention not to pay.868

5. Action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud
creditors.

5.1 Mere removal or disposition, by itself, is not ground for the issuance of a writ of preliminary attachment,
notwithstanding the insolvency of the defendant or the absence of security for the satisfaction of any judgment is alleged
against the defendant.869

5.2 Where fraudulent disposal is put in issue, the parties should be given the opportunity to prove their claims, or at
the very least, the defendant should be given the chance to show that he has not been disposing of his property in fraud
of creditors.870

6. Action against a party who does not reside and is not found in the Philippines or on whom summons may be
served by publication.871

HOW APPLIED FOR

1. Generally, by motion or is incorporated in the complaint, accompanied by an affidavit, containing the following: (a)
It is executed by the applicant / or some person who is aware or personally knows the facts (b) A sufficient cause of
action exists (c) That a ground/s as stated in Section 1 exists (d) There is no other sufficient security for the claim sought
to be enforced by the action (e) The amount due the applicant or value of the property that he is entitled to recover, is as
much as the sum for which the Order is granted, above all legal counterclaims 872

1.1 An ordinary creditor appointed as administratrix of the estate of the deceased cannot file a petition for preliminary
attachment as that would constitute him as a preferred creditor. 873

866
K.O. Glass Construction Co. Inc. v. Valenzuela, 116 SCRA 563
867
Peregrina v Panis, 133 SCRA 71
868
FCY Construction Group Incorporated v Court of Appeals, 324 SCRA 270
869
Peoples Bank and Trust Company v Syvels Incorporated, 164 SCRA 247
870
Adlawan v. Torres, 233 SCRA 645
871
Supra, Section 1, Rule 57
872
Supra, Section 3, Rule 57
873
Gruenberg v Court of Appeals, 138 SCRA 471
2. A bond must then be executed to the adverse party in the amount fixed by the court, conditioned that the latter will
pay all costs which may be adjudged and all damages sustained by reason of the attachment, if the court shall finally
adjudge that the applicant was not entitled thereto. 874

WHEN ISSUED / BY WHOM

1. Either ex parte or on motion with notice and hearing, by the court in which
action is pending, by the Court of Appeals or the Supreme Court and must require the Sheriff to attach so much of the
property in the Philippines of the party against whom it is issued not exempt from execution as may be sufficient to satisfy
the claim unless the other party makes a deposit or gives a bond in an amount equal to that fixed in the order, exclusive
of costs.

1.1 Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions. 875

2. It is issued ex-parte when the ground is justified further by the fact that the defendant might abscond or dispose of
his property before the writ is issued. It can take place even before he is summoned but note that it cannot be enforced
unless it is preceded or contemporaneously accompanied by service of summons, together with complaint, application for
attachment, affidavit, bond, order and the writ itself.

2.1 This is the Prior or Contemporaneous Rule.

2.2 Note that an Alias Summons belatedly filed cannot be deemed to have cured the fatal defect in the enforcement of
the writ of preliminary attachment.876

2.3 The prior or contemporaneous rule does not apply when: (a) Summons could not be served personally or by
substituted service despite diligent efforts (b) Defendant is a resident but temporarily out of the PhiIippines (c)
Defendant is a non-resident of the Philippines (d) It is an action in rem or quasi in rem

BY WHOM / HOW ENFORCED

1. By the sheriff, without delay and with all reasonable diligence

1.1 Note that Rule 57 does not provide any lifetime for a writ of preliminary attachment unlike a writ of execution. 877
What the law provides for are the enforcement of the writ without delay and making sheriffs return thereon without delay.

2. He may attach only such property not exempt from execution, as may be sufficient to satisfy the demand unless
the defendant makes a deposit or gives a counter bond in an amount equal to the bond fixed by the court or to the value
of the property attached. 878

2.1 Note that the attachment shall proceed nevertheless until there have been proceedings undertaken to discharge
the attachment. If found to be insufficient / or is not filed, a new order of attachment may be applied for. 879

3. Attachment should be in accordance with the following:

(a) If real property, it requires the filing with the Office of the Register of Deeds of a copy of the order together with
notice that property or interest therein is attached.

(b) If personal property capable of manual delivery taking it and safely keeping it in custody after issuance of proper
receipt.

(c) If stocks / shares / interest in companies, by leaving with the president or managing agent a copy of the writ and
notice.

(d) If debts, credits, bank deposits and other like personal properties not capable of manual delivery leaving with
such persons owing debt, holding credits or in possession a copy of the writ and notice.
874
Supra, Section 4, Rule 57
875
Supra, Section 2, Rule 57
876
Mangila v Court of Appeals, 387 SCRA 162
877
Roque v Court of Appeals, 93 SCRA 540
878
Supra, Section 5, Rule 57
879
Supra, Section 12, Rule 57
(e) If interest is in the estate of a decedent, by virtue of his being an heir, legatee, or devisee, by serving the writ /
notice on executor or administrator.

(f) If in custodia legis copy of writ is filed if the proper court or quasi-judicial agency and notice served on the
custodian of the property. 880

3.1 Effect of attachment of debts, credits and similar personal property persons who have them are liable to the
applicant for the amount of such credits until the attachment is discharged, judgment is satisfied or debts are paid 881

3.2 Effect if on property belonging the estate of the decedent, it will not impair the powers of the executor /
administrator or representative BUT they shall report the attachment to the court when any petition for distribution is filed
and in the order made upon such petition the property may be awarded to the heir / legatee / devisee , but the
property attached shall be delivered to the sheriff, subject to the claim of the heir, legatee, devisee or person claiming
under him.882

3.3 There can also be an examination of the listed persons to determine if there are properties in their possession that
may be attached.883

4. Sheriff shall also make a return without delay, containing a full statement of his proceedings under the writ and a
complete inventory of property attached, together with a copy of a counter-bond if one has been filed, furnishing copies
thereof on the applicant.884

5. Property is to be held and disposed of in the following manner:

5.1 If judgment is recovered by the attaching party

(a) Paying to obligee proceeds of all sales of perishable property or others sold pursuant to order of the court as shall
be necessary to satisfy the judgment.

(b) If there is a balance, selling so much of the real or personal property as may be necessary to satisfy the balance,
if enough for that purpose, remains in the hands of the sheriff or clerk of court. Note that there can be an EARLY SALE if it
is made to appear to the court in which the action is pending that the property attached is perishable, or that the interest of
all the parties to the action will be subserved by the sale of the properties at public auction, the proceeds to be deposited
with the court to abide the judgment.885

(c) Collecting from all persons having in their possession credits belonging to the obligor or debts due him

(d) If there be a balance, he proceeds to collect as upon ordinary execution. If there be a surplus, it must be returned.

(e) If judgment becomes executory, the surety/ies shall become charged on the counter-bond and bound to pay the
judgment obligee upon demand, the amount due on the judgment, which amount can be recovered after notice and
summary hearing in the same action.886

(f) If money was deposited in lieu of a bond, it is applied under direction of the Court and if judgment is against
attaching party, the whole sum deposited is refunded. 887

A Report or Return of all proceedings must be filed with the court and copies furnished all parties. 888

5.2 If judgment is for adverse party

880
Supra, Section 7, Rule 57
881
Supra, Section 8, Rule 57
882
Supra, Section 9, Rule 57
883
Supra, Section 10, Rule 57
884
Supra, Section 6, Rule 57
885
Supra, Section 11, Rule 57
886
Supra, Section 17, Rule 57
887
Supra, Section 18, Rule 57
888
Supra, Section 15, Rule 57
(a) All proceeds of sales or money collected by the sheriff and property attached shall be delivered to the party whose
properties were attached and the order of attachment discharged.

(b) Claim for damages before trial, perfection of appeal, or judgment becomes executory, with due notice to the
attaching party and surety setting forth the facts showing his right to damages in instances where there is improper,
irregular or excessive attachment, are to be awarded after hearing and is to be included in the judgment in the main case.

(c) If the judgment favorable to him is rendered by the appellate court, he must claim the damages during the
pendency of the appeal by filing the application in the appellate court, before the judgment becomes executory. The
appellate court may allow the application to be heard and decided by the trial court.

(d) Nothing, likewise, prevents the party against whom attachment is issued from recovering in the same action the
damages awarded to him from any property of the attaching party not exempt from execution should the bond or deposit
be insufficient.889

WHAT ARE THE REMEDIES OF A PARTY WHOSE PROPERTIES ARE ATTACHED

1. Discharge the attachment by making a cash deposit or counter bond. 890 Note that bond may be subject to
recovery by attaching party;

1.1 A motion to discharge / dissolve is not allowed if the preliminary attachment is issued on a ground which is at the
same time the applicants cause of action as that is tantamount to a trial on the merits. Example: action for money,
property embezzled, party guilty of fraud in incurring the obligation

2. Discharge or set aside the attachment on the ground that it was improperly issued or irregularly enforced, or bond
is insufficient or what has been attached is excessive, the discharge is only for the excess. 891
892
3. Claim for damages on account of improper, irregular, or excessive attachment.

WHAT HAPPENS IF PROPERTY IS CLAIMED BY A 3RD PERSON

1. Claim is to be initiated by affidavit.

1.1 Upon filing, the sheriff not under obligation to keep the property, unless attaching party files a bond.

1.2 No claim for damages for the taking or keeping of the property may be filed / enforced against the bond unless the
action is filed within 120 days from date of the filing of the bond. 893

RULE 58 PRELIMINARY INJUNCTION

1. A Preliminary Injunction is an order granted at any stage of an action or proceeding prior to judgment or final
order, requiring a party or a court, agency, person to refrain from a particular act or acts. It may also require the
performance of an act, if such it is called a preliminary mandatory injunction. 894

2. Note that Injunction may also exist as a cause of action. This is best illustrated by the appropriate remedies for
obligations to do or not to do. Obligations to do, the remedy is specific performance. Obligation not to do, remedy is
injunction.

2.1 An example is that provided for by Article 26 of the Civil Code that allows an injunction against one prying into the
privacy of another residence, meddling with or disturbing the private life or family relations of another or the enforcement
of an easement of light and view.

PRIMARY PURPOSE OF INJUNCTION

889
Supra, Section 20, Rule 57
890
Supra, Section 12, Rule 57
891
Supra, Section 13, Rule 57
892
Supra, Section 20, Rule 57
893
Supra, Section 14, Rule 57
894
Supra, Section 1, Rule 58
1. Is to preserve the status quo or the last actual, peaceable, uncontested status which precedes the pending
controversy.

WHO MAY GRANT

1. Court where the action is pending. If pending in the Court of Appeals or the Supreme Court, it may be issued by
the Court or any member thereof.895

GROUNDS FOR ISSUANCE

1. The applicant is entitled to the relief demanded, and the whole or part of the relief consists in restraining the
commission / continuance of the act/s complained of, or in requiring the performance of an act/s, for a limited period or
perpetually.

2. The commission / continuance / non performance of the act/s during litigation will probably work injustice to the
applicant, or

3. That a party, court, agency or a person is doing, threatening, or is attempting to do or is procuring or suffering to
be done, some act/s in violation of the rights of the applicant respecting the subject of the action and tending to render
judgment ineffectual.896

REQUISITES FOR ISSUANCE OF AN INJUNCTION

1. The requisites are: (a) Existence of a right to be protected, and (b) Acts against which the injunction is to be
directed are violative of the right

2. These must clearly appear in the allegations in the complaint, otherwise, it may be ground for its outright denial for
insufficiency, which is apparent in the application itself or if already granted, may be dissolved. 897

MAY IT BE ISSUED EX-PARTE

1. As a general rule, the issuance requires (a) a hearing (b) reception of evidence with opportunity to cross (c)
finding that prohibited acts are threatened to be committed or that irreparable injury would be inflicted upon the applicant.

2. If great/irreparable injury would result before then the Court by way of an exception on non ex-parte issuance (a)
can issue a Temporary Restraining Order for 20 days after a summary hearing or If it is of extreme urgency, it may issue
ex-parte a 72 hour Temporary Restraining Order, within which period a summary hearing to determine whether or not the
same is to be extended for the full 20 day period must be held.

2.1 Note that within the 20 day effectivity period of the Temporary Restraining Order, the court must order the party or
person to show cause why the injunction should not be granted, determine also whether or not the preliminary injunction
should be granted, and accordingly issue the order. 898

2.2 The lifetime of a Temporary Restraining Order is 20 days if issued by a trial court, 60 days if issued by the Court
of Appeals, and until further orders if issued by the Supreme Court. Note that when the trial court omits to state a period,
the 20 day period is deemed incorporated in the order. 899

2.3 A second Temporary Restraining Order issued by the Court of Appeals after the expiration of the first period is a
patent nullity.900

895
Supra, Section 2, Rule 58
896
Supra, Section 3, Rule 58
897
Supra, Section 6, Rule 58
898
Supra, Section 5, Rule 58
899
Bacolod City Water District v Labayen, 446 SCRA 110
900
Padilla v Asuncion, AM No. 06-44-CA-J, March 20, 2007
3. A status quo order is not a temporary restraining order. It is more in the nature of a cease and desist order, has no
specified duration and does not specifically direct the performance of an act. It lasts until revoked, may be the subject of
an agreement, and does not require the posting of a bond.

HOW OBTAINED

1. A preliminary injunction or temporary restraining order is obtained upon (a) filing of a verified application showing
facts entitling the applicant to the relief demanded, (b) unless exempted, filing of a bond in an amount fixed by the court,
to the effect that applicant will pay all damages that may be sustained if the court should finally decide that applicant was
not entitled thereto (c) if included in a complaint / initiatory pleading it shall be raffled only after notice to and in the
presence of the adverse party.

2. In any event, notice shall be preceeded by or contemporaneously accompanied by service of summons, together
with affidavit and bond but such will not be applicable if defendant / adverse party cannot be served personally /
substituted service, is temporarily absent or is a non-resident.

3. The matter shall thereafter be acted upon only after all parties are heard in a summary hearing, conducted within
24 hours after sheriffs return of service.901

WHEN INJUNCTION WILL NOT ISSUE

901
Supra, Section 4, Rule 58
1. Under BP Blg. 227 amending the Labor Code, a court cannot grant injunctive relief in cases growing out of a labor
dispute as the said power is vested in the NLRC. An exception is when the injunction is sought by a third person whose
property is levied upon to satisfy the liability of another. 902

2. Under RA 8735 and PD 1818, injunction does not lie against the execution or implementation of government
infrastructure programs, essential government projects, including arrastre 903

3. Under Section 55, RA 6657 of the Comprehensive Agrarian Reform Law, injunction cannot issue against the
Presidential Agrarian Reform Council or any of the implementing agencies.

4. As against the Asset Privatization Trust as taken over by the Privatization and Management Office of the
Department of Finance.904

5. As against a court of co-equal rank or decrees of a court with concurrent or coordinate jurisdiction. 905

6. As against quasi-judicial bodies of co-equal rank as an RTC such as the Social Security System or the SEC

7. By the RTC as against the Intellectual Property Office, Commission on Elections or Workmens Compensation
Commission

8. As against the collection of a national internal revenue tax, fee or charge imposed by the NIRC 906 or the
Commissioner of Customs over seizure or forfeiture proceedings907

9. As against consummated acts or a judgment already executed 908

10. To transfer possession or control over property when legal title is still in dispute or when it has not yet been clearly
established or there is a lack of clear and unmistakable right on the part of the applicant. 909

11. To establish new relations between the parties910

12. When it disposes of the main case without trial as the grant of injunctive relief assumes the proposition that
petitioner must prove.911

13. To restrain a criminal prosecution912 except: (a) to afford adequate protection to the constitutional rights of the
accused; (b) when necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; (c)
when double jeopardy is clearly apparent; (d) where the charges are manifestly false and motivated by the lust for
vengeance; or (e) where there is clearly no prima facie case against the accused and a motion to quash on that ground
has been denied.913

14. In applications for restraining order and injunction against the foreclosure of a real estate mortgage on the ground
that it has been paid or not delinquent, unless it be verified and supported by evidence of payment.

14.1 If on the allegation that interest is unconscionable, the debtor must pay the mortgagee at least 12% per annum on
the principal obligation as stated in the application for foreclosure, which shall be updated monthly while the case is
pending.

14.2 The bond shall be equal to the amount of the outstanding debt, and the time for its effectivity shall apply as well to
a status quo order.

902
Penalosa v Villanueva, 177 SCRA 78
903
Philippine Ports Authority v Pier 8 Arrastre and Stevedoring, 475 SCRA 426
904
Section 31-A, Proclamation 50-A, EO No. 323, 2000
905
Ching v Court of Appeals, 398 SCRA 88
906
Filipino Metals Corporation v Secretary, Trade and Industry, 463 SCRA 616
907
Zuno v Cabredo, 402 SCRA 75
908
PNB v Adi, 173 SCRA 550
909
Cortez Estrada v Samut, 451 SCRA 275
910
Almeida v Court of Appeals, 448 SCRA 68
911
Levi Strauss v Clinton Apparelle, 470 SCRA 236
912
Andres v Cuevas, 460 SCRA 38
913
Roberts vs. CA, 254 SCRA 307; Brocka vs. Enrile, 192 SCRA 183
GROUNDS FOR OBJECTION / DISSOLUTION

1. The application may be denied or if granted, dissolved, upon showing of insufficiency, or while entitled to an
injunction, the issuance or continuance thereof will cause irreparable damage to the person enjoined while the applicant
can be compensated for the damages and a bond is filed or if it appears that extent is too great, it may be modified. 914

2. It may also be dissolved on objection to the sufficiency of the bond, or upon finding of insufficiency, the failure of
surety to justify or filing of a sufficient bond. If it the objection is to the bond of the party enjoined, the injunction shall be
granted or restored. 915

JUDGMENTS OR ORDERS IN INJUNCTION

1. An order discharging an injunction is immediately effective.

2. A Final Injunction is granted if it appears that the applicant is entitled to have the act/s permanently enjoined or
confirming the preliminary mandatory injunction.916
917
3. Judgments eventually rendered may include damages against a party and sureties.

4. No injunction can issue against the acts of a co-equal court, except in a 3 rd party claim where claimant vindicates
his right by a separate action.

RESOLUTION OF THE MAIN CASE OR PETITION

1. The trial court, the Court of Appeals, the Sandiganbayan, or the Court of Tax Appeals that issued the writ of
preliminary injunction against a lower court, board, officer or quasi-judicial agency shall decide the main case or petition
within a period of six (6) months from the issuance of the writ. 918
RULE 59 RECEIVERSHIP

WHEN IS A RECEIVER APPOINTED

1. When it appears from a verified application, and as such other proof as the court may require, that the party
applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or
proceeding as such property / fund is in danger of being lost, removed or materially injured unless a receiver be appointed
to administer and preserve it.

2. When it appears in an action by the mortgagee for the foreclosure of mortgagee that the property is in danger of
being wasted, dissipated or materially injured and that its value is probably insufficient to discharge the mortgage debt or
that the parties have so stipulated in the mortgage contract.

3. When after judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to
the judgment, or to aid in execution when the execution is returned unsatisfied or the judgment obligor refuses to apply
his property in satisfaction of the judgment or otherwise carry the judgment into effect.

4. Whenever in other cases, it appears that the appointment of a receiver is the most convenient and feasible means
of preserving, administering or disposing of property in litigation.

WHO APPOINTS A RECEIVER

1. The court where action is pending or the Court of Appeals, the Supreme Court or a member thereof.

1.1 During appeal, the appellate court may allow the application for the appointment to be filed in the court of origin,
which can also decide on the same to be subject to the control of said court. 919

914
Supra, Section 6, Rule 58
915
Supra, Section 7, Rule 58
916
Supra, Section 9, Rule 58
917
Supra, Section 8, Rule 58
918
A.M. 07-7-12-SC
919
Supra, Section 1, Rule 59
2. A receiver of real or personal property, which is the subject of the action, may be appointed by the court when it
appears from the pleadings or such other proof as the judge may require, that the party applying for such appointment
has:
(a) an actual interest in it, and (b) that such property is in danger of being lost, removed, or materially injured; or
whenever it appears to be the most convenient and feasible means of preserving or administering the property in
litigation.920

3. A receiver is a person appointed by the court or by a quasi-judicial administrative agency, in behalf of all the
parties for the purpose of preserving and conserving the property and preventing its possible destruction or dissipation, if
it were left in the possession of any of the parties. It is the duty of the receiver to administer the assets of the receivership
estate; and in the management and disposition of the property committed to his possession, he acts in a fiduciary capacity
and with impartiality toward all interested persons.921

4. A receiver is not an agent or representative of any party to the action.

4.1 He is an officer of the court exercising his functions in the interest of neither plaintiff nor defendant, but for the
common benefit of al the parties in interest.

4.2 He performs his duties subject to the control of the Court, and every question involved in the receivership may
be determined by the court taking cognizance of the receivership proceedings.

4.3 Thus, unauthorized contracts of a receiver do not bind the court in charge of receivership. They are the receivers
own contracts and not recognized by the court as contracts of the receivership. 922

WHAT ARE THE POWERS OF THE RECIEVER

1. Subject to the control of the court, a receiver can: (a) Bring and defend actions in his own name (b)Take and
keep possession of the properties in controversy (c)To receive rent (d)Collect debts, including power to compound and
compromise them, to pay debts (e)Make transfers (f) To divide money or other property (g) Other acts as may be
authorized by the court

2. Funds though may only be invested by order of the court upon written consent of all parties. No action may be
filed by or against the receiver without leave of court to prevent harassment. 923

3. Should there be refusal / neglect to deliver property to a receiver it is punishable by contempt and shall be liable
for the money or value of the property, plus damages sustained as a consequence of the refusal / neglect. 924

HOW APPLIED FOR

1. By verified application.

1.1 More than 1 receiver may be applied for and appointed by the court.

1.2 Note that receivership may be a principal action or an ancillary remedy.

2. If application is granted the receiver shall await the filing by the applicant of a bond executed to the party against
whom the application is presented in an amount fixed by the Court to the effect that the applicant will pay such party all
damages that he may sustain by reason of the appointment in case the same has been procured without sufficient cause
and the court in its discretion may require an additional bond to be filed as further security for damages. 925

3. The application may be denied or receiver discharged when the adverse party files a bond executed to the
applicant to the effect that such party will pay to the applicant all damages he may suffer by reason of acts, omissions or
other matters specified as grounds in the application.

3.1 It may also be discharged if it is shown that appointment was obtained without sufficient cause. 926
920
Commodities Storage & Ice Plant Corp. versus Court of Appeals, 274 SCRA 439
921
Arranza versus B.F. Homes, Inc., 333 SCRA 799
922
Pacific Mechandising Corp., versus Consolacion Insurance & Surety Co., Inc., 73 SCRA 564
923
Supra, Section 6, Rule 59
924
Supra, Section 7, Rule 59
925
Supra, Section 2, Rule 59
926
Supra, Section 3, Rule 59
4. Before entering upon his duties, the receiver shall be sworn to perform them faithfully and shall file a bond
executed to such person and in amount fixed by the court, to the effect that he will faithfully discharge his duties and obey
orders from the Court.927

5. Copies of bonds of the applicant and receiver or the adverse party shall be served on each interested party who
may except to its sufficiency or the surety. If found to be insufficient or is not justified and a bond sufficient in amount and
surety is not filed, the application shall be denied and the receiver discharged. If adverse partys bond is the one excepted
to or found insufficient, the receiver shall be appointed or reappointed as the case may be. 928

WHEN TERMINATED

1. When the court, motu propio or upon motion, shall determine that the necessity for a receiver no longer exists, it
shall alter due notice, settle all accounts, direct delivery of the funds / property in his possession to the person adjudged to
be entitled to receive them and order the discharge of the receiver from further duty.

2. He is to be allowed compensation as circumstances will warrant to be taxed against defeated party or apportioned
as justice may require.929

3. Any judgment may include the amount, if any, to be awarded any party upon any bond. 930

RULE 60 REPLEVIN

The lessor in a lease with option to purchase, in choosing through replevin, to deprive the lessee of possession of the leased
equipment, waived its right to recover unpaid rentals on the said leased items. The remedy provided by Article 1484 are alternative,
not cumulative.931

WHAT IS REPLEVIN

1. It is a form of a principal remedy and provisional remedy / relief.

1.1 It is also a mixed action partly in rem as far as the claim for recovery of personal property and in persona as far as
the claim of damages, the object of which is recovery of possession of personal property applied for at the
commencement of the action or at any time before answer by the party praying for recovery of personal property. 932

HOW APPLIED FOR

1. Filing of Affidavit containing the following: (a) that applicant is the owner of the property claimed, particularly
describing it, or is entitled to possession of the same (b)that property is a wrongfully detained by the adverse party,
alleging the cause of detention according to the best of his knowledge, information or belief (c) that property has not been
distrained or taken for a tax assessment or payment of fine or seized under execution, preliminary attachment or in
custodia legis, or if so seized, it is exempt from seizure / custody (d) actual market value not the probable value as
declared by the applicant. Should there be a dispute, it is to be resolved by the Court.

2. Filing of bond in double the value of the property for return of the property to the adverse party and payment of
such sum as he may recover from the applicant

3. Upon filing of the affidavit and bond, the writ of replevin shall issue requiring the sheriff to forthwith take the
property in custody.933

3.1 In taking custody if concealed, he may demand delivery, if not delivered, he may cause the building / enclosure
to be broken.
927
Supra, Section 4, Rule 59
928
Supra, Section 5, Rule 59
929
Supra, Section 8, Rule 59
930
Supra, Section 9, Rule 59
931
PCI Leasing and Finance Inc v Giraffe X Creative Imaging, Inc, 527 SCRA 405,(July 12, 2007)
932
Supra, Section 1, Rule 60
933
Supra, Sections 2 and 3, Rule 60
3.2 Once in possession, it must be kept in a secure place and shall be responsible for its delivery to the party entitled
thereto upon receipt of his fees and expenses.934

REMEDIES FOR RETURN OF PROPERTY

1. Objection to the sufficiency of the bond / surety but he cannot immediately require delivery or at any time before
delivery to the applicant, by filing a bond known as a redelivery bond executed to the applicant in double the value of the
property as stated in the applicants affidavit.

MANNER OF DISPOSITION BY SHERIFF

1. If within 5 days after taking of the property, the adverse party does not object to sufficiency of the bond / sureties
or he objects and the court affirms its approval of the bond or approves a new bond or if he requires return but his bond
is objected to (adverse party) and he does not forthwith file an approved bond the sheriff shall deliver the property to the
applicant, if for any reason it is not delivered, it must be returned to the adverse party. 935

2. If claimed by a 3rd Party by affidavit, the sheriff is not bound to keep and deliver the property unless applicant /
agent on demand of the sheriff files a bond approved by the Court to indemnify the 3 rd party claimant in a sum not less
than the value of the property under replevin.

2.1 In case of disagreement as to value, the court shall determine the same.

2.2 Note that no action on the bond may be enforced unless filed within 120 days from filing.

2.3 The sheriff shall not be liable for damages for the taking and keeping of the property to any such 3 rd party if the
bond is filed. Nothing also prevents the 3 rd party claimant or the applicant from vindicating their rights or claims in the
same action or in a separate action.

2.4 If writ is issued in the name of RP, no bond is required and the sheriff is to be represented by the Solicitor General
and damages so adjudged are paid out of the National Treasury. 936

3. The sheriff must make return within 10 days after taking of the property. 937

4. The judgment shall include a determination who has a better right of possession to and value of the property and
render judgment in the alternative for delivery thereof to the party entitled or its value in case delivery cannot be made,
and also for damages as either party may prove, with costs.

4.1 Any amount awarded a party upon any bond shall be claimed, ascertained and granted as provided by Section 20
of Rule 57.938

5. A writ of replevin may be served anywhere in the Philippines.

RULE 61 SUPPORT PENDENTE LITE

WHEN FILED AND HOW

1. At the commencement of the proper action or proceeding or at any time prior to a judgment or final order a
verified application may be filed by a party stating the grounds for the claim and the financial conditions of both parties,
accompanied by affidavits, depositions, or other authentic documents in support thereof. 939

2. It is also available in criminal cases when: (a) child is born to offended party allegedly because of the crime (b)
civil liability arising from the criminal action includes support for the offspring (c) civil aspect has not been waived,
reserved or instituted prior to filing of criminal action.
934
Supra, Section 4, Rule 60
935
Supra, Section 6, Rule 60
936
Supra, Section 7, Rule 61
937
Supra, Section 8, Rule 61
938
Supra, Sections 9 and 10, Rule 61
939
Supra, Section 1, Rule 61
2.1 This application may be filed successively by the offended party, her parents, grandparents, guardian or the State
in the corresponding criminal case during its pendency. 940

PROCEDURE

1. Upon filing of verified application it shall be served on the adverse party, who shall have 5 days to comment
unless a different period is fixed by the court.

1.1 The comment shall also be verified and accompanied by affidavits, depositions, authentic documents. 941

2. Hearing shall then be conducted no more than 3 days after comment is filed or the period expires. 942

3. Court shall determine provisionally the pertinent facts and render such orders as justice and equity may require,
having due regard to the probable outcome of the case and such other circumstances.

3.1 If granted, it shall fix the amount of money to be provisionally paid or such other forms or support as should be
provided taking into account the necessities of the applicant and resources or means of the adverse party and the
terms or mode for providing support.

3.2 If denied, the principal case shall be tried and decided as early as possible. 943

HOW ENFORCED

1. If adverse party fails to comply, the court shall, motu propio or on motion, issue an order of execution without
prejudice to his liability for contempt.

2. If support be paid by a 3 rd person, after due notice and hearing in the same case, he may obtain a writ of
execution to enforce his right of reimbursement against the person ordered to provide support. 944

RESTITUTION

1. If upon judgment / final order The court finds that the person who has been providing support is not liable
therefor it shall order the recipient to return the amounts paid plus interest from dates of actual payment without
prejudice to the right of the recipient to obtain reimbursement in a separate action from the person legally obliged to give
support.

1.1 Should the recipient fail to reimburse, the person who provided the same, may, in a separate action, seek
reimbursement thereof from the person obliged to give support. 945

SPECIAL CIVIL ACTIONS

RULE 62 - INTERPLEADER

WHEN PROPER

1. Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no
interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may
bring an action against the conflicting claimants to interplead and litigate their several claims among themselves. 946

2. Examples of when interpleader is proper: (a) where a warehouseman is in custody of goods being claimed by two
or more persons who do not have the same interest, or (b) two or more lessors are trying to collect from a lessee.

940
Supra, Section 6, Rule 61
941
Supra, Section 2, Rule 61
942
Supra, Section 3, Rule 61
943
Supra, Section 4, Rule 61
944
Supra, Section 5, Rule 61
945
Supra, Section 7, Rule 61
946
Supra, Section 1, Rule 62
PROCEDURE:

1. Upon filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one
another.

1.1 If the interest of justice requires, it may order the subject matter be paid or delivered to the court. 947

2. Summons shall then issued to claimants, together with a copy of the complaint and order. 948

3. Within the time for the filing of an answer, motions to dismiss may be filed, if denied the claimant must file an
answer within the period remaining but in no case less than 5 days.

3.1 If not, he may be declared in default and thereafter the court may render judgment barring him from any claim in
respect of the subject matter.

3.2 They may also file counter-claims, cross-claims, 3rd party claims, and other responsive pleadings.949

4. After the pleadings of the conflicting claimants have been filed, pre-trial conducted, the court shall proceed to
determination and adjudication of their respective claims. The docket and other lawful fees paid by a party who filed the
complaint, as well as costs / expenses of litigation shall constitute a lien or charge upon the subject matter, unless the
court orders otherwise.950

RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES

WHAT IS DECLARATORY RELIEF

1. It is a special civil action brought before the Regional Trial Court only by a person interested in a deed, will,
contract or other written instrument, or whose rights are affected by a statute, executive order, regulation or ordinance or
any other government regulation, before breach thereof, asking the court to determine any question of construction or
validity arising therefrom, and for a declaration of his rights or duties thereunder. 951

1.1 The list of what may properly be addressed by a petition for declaratory relief is exclusive. Hence, an action for
declaratory relief to determine the import of a judgment or to resolve doubts as to citizenship is not proper.

1.2 Note that even if the subject is enumerated, the court will refuse to act if the contract is clear and there is no doubt
as to its meaning as there is no need for construction or a declaration of rights.

2. The similar remedies are the actions for reformation of instruments, to quiet title or remove clouds therefrom, or to
consolidate ownership under Article 1607 of the Civil Code . They may be brought as civil actions for declaratory relief.

3. Note that it can be brought only before a breach / violation of the statute or instrument.

3.1 If already brought and a breach / violation is committed before final termination, it is converted into an ordinary
civil action.

3.2 The parties may then file such pleading as may be necessary or proper. 952

WHO ARE THE ALLOWED PARTIES

1. All persons who have or claim an interest which would be affected by the declaration shall be made parties and
no declaration shall as except as otherwise provided in these Rules prejudice the rights of persons not parties to the
action.

947
Supra, Section 2, Rule 62
948
Supra, Section 3, Rule 62
949
Supra, Sections 4 and 5, Rule 62
950
Supra, Sections 6 and 7, Rule 62
951
Supra, Section 1, Rule 63
952
Supra, Section 6, Rule 63
2. If involving validity of a statute, executive order, regulation, or any other government regulation. The solicitor
general shall be notified and is entitled to be heard upon such question. 953

3. If local government ordinance, the corresponding attorney / prosecutor of the Local Government Unit shall be
similarly notified and heard. If alleged to be unconstitutional, the Solicitor General shall be notified and heard. 954

ACTION BY THE COURT

1. Except in actions falling under the 2nd paragraph of Section 1, the court,
motu propio, or on motion, may refuse to exercise the power to declare rights and to construe instruments in any case
where a decision would not terminate the controversy or uncertainty that gave rise to the action, or in any case, where the
declaration or construction is not necessary or proper under the circumstances.955

RULE 64 REVIEW OR JUDGMENTS / FINAL ORDER OF THE COMELEC AND COA

1. A judgment / final order of COMELEC / COA is to be brought by the aggrieved party to the Supreme Court under
Rule 65 but the period for filing is 30 days from notice of the judgment or final order sought to be reviewed.

1.1 This rule was promulgated by the Supreme Court to implement Section 7 of Article IX-A of the 1987 Constitution
which provides that any decision, order or ruling of a constitutional commission may be brought to it on certiorari within 30
days from receipt of a copy thereof, having interpreted the same to refer to a certiorari petition under Rule 65. However, if
it has for its subject an interlocutory order, it has been submitted that the periods provided for under Rule 65 will prevail
over that provided by Rule 64.

1.2 The filing of a motion for new trial / recon if allowed under the procedural rules of the COMELEC / COA will toll the
period. If denied, the aggrieved party only has the remaining period which is no case shall be less than 5 days in any
event, reckoned from notice of denial.956

1.3 Note that only judgments/final orders of the COMELEC en banc can be brought to the SC. What is exercised is
the power of review.

2. The bringing of a petition, shall not stay the execution of the judgment, final order or resolution unless directed
otherwise by the Supreme Court.957

RULE 65- CERTIORARI / PROHIBITION AND MANDAMUS

The exercise of judicial function is to determine what the law is, and what the legal rights of paties are, with respect to a matter is controversy; and
whenever an officer is clothed with that authority, and undertakes to determine those questions, he acts judicially. (The Mun.Council of Lemery,
Batangas vs. The Prov. Board of Batangas, 56 PHIL. 260)
A quasi-judicial act or function is a judicial act or function performed by one who is not a judge.
Without jurisdiction refers to lack of jurisdiction of the court, board, or officer from the beginning.

Mandamus will lie:


a. in case any tribunal unlawfully neglects the performance of an act which the law specifically enjoys as a duty;
b. in case any corporation, board or person unlawfully neglects the performance of an act which the law enjoins as a duty resulting from an
office, trust, or station;
c. in case any tribunal, corporation, board or person unlawfully excludes another from the use and enjoyment of a right or office to which
such other is legally entitled; and
d. there is no other plain, speedy and adequate remedy in the ordinary course of law.
The legal right of the plaintiff (petitioner) to the thing demanded must be well defined, clear and certain. The corresponding duty of the defendant
(respondent) to perform the required act must also be clear and specific. (Enriquez, Jr. vs. Bidin, 47 SCRA 183).
Mandamus lies only to compel performance of a ministerial duty but not to compel performance of a discretionary duty. (Calderon vs. Sol. General,
215 SCRA 876)

953
Supra, Section 3, Rule 63
954
Supra, Section 4, Rule 63
955
Supra, Section 5, Rule 63
956
Supra, Sections 1,2, and 3, Rule 64
957
Supra, Section 8, Rule 64
The initial determination of what pleadings, documents or orders are relevant and pertinent to the petition rests on the petitioner. 958

WHAT IS CERTIORARI

1. Special Civil Action against a tribunal board or officer exercising judicial or quasi-judicial function which is alleged
in a verified petition filed by an aggrieved party to have acted without jurisdiction or in excess of its jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction.

1.1 There is no appeal, or any plain speedy and adequate remedy in the ordinary course of law.

1.2 Praying for the judgment annulling / modifying the proceedings of such, tribunal board officer, tribunal and
granting such incidental reliefs as law and justice may require. 959

2. Certiorari may prosper notwithstanding the presence of an appeal when: (a) public welfare and the advancement
of public policy dictate it (b) when the broader interest of justice requires it (c) when the writs issued are null, (d) the
questioned order amounts to an oppressive exercise of judicial authority. 960

DISTINGUISHED FROM PETITION FOR REVIEW ON CERTIORARI

1. Certiorari as distinguished from a Petition for Review on Certiorari:

(a) In the former, the issue is whether the lower court acted without, in excess of or with grave abuse of
discretion, while in the latter the issue is based on questions of law

(b) In the former, it is addresses an interlocutory order prior to appeal of a judgment when there is no appeal or any
other speedy or adequate remedy, while the latter involves a review of judgment/final order/ resolution on the merits

(c) The former is filed within 15 days from notice of judgment / order, while the latter is filed not later than 60 days
from notice of the resolution sought to be assailed or denial of a motion for reconsideration

(d) The former shall stay the judgment /final order or award, while the latter does not stay the order or resolution
unless a temporary restraining order or preliminary injunction is issued

(e) In the former, the petitioner/respondent are the original parties in the case and the lower court is not impleaded,
while in the latter, the aggrieved party is the petitioner against the against the lower court, agency and the prevailing party

(f) The former does not require the filing of a motion for reconsideration prior to filing, while the latter requires a
motion for reconsideration prior to filing

(g) In the former, the court is exercising appellate jurisdiction, while in latter, it is exercising original jurisdiction

(h) The former can only be filed in the Supreme court, while the latter may be filed with Supreme Court, Court of
Appeals, or the Regional Trial Court

EXCEPTIONS TO REQUIREMENT AS TO MOTION FOR RECONSIDERATION PRIOR TO FILING A PETITION FOR


CERTIORARI UNDER RULE 65

1. The exceptions are: (a)order is a patent nullity court a quo has no jurisdiction (b) questions have been raised in
certiorari have been duly raised and passed upon by lower court (c)urgent necessity for resolution (d)where a motion for
reconsideration will be useless (e)petitioner is deprived of due process, there is extreme urgency for relief (f) in criminal
case, relief from order of arrest is urgent, and grant of relief by trial court is not probable (g) proceedings in lower court
are a nullity for lack of due process (h) issue is purely of law or where public interest is involved.

958
Condes v Court of Appeals, 528 SCRA 339 (July 27, 2007)
959
Supra, Section 1, Rule 65
960
Mallari vs. Banco Filipino Savings & Mortgage Bank, 563 SCRA 664, Leyte IV Electric Cooperative, Inc. vs. Leyteco IV
Employees Union, ALU, 537 SCRA 154
WHAT IS PROHIBITION

1. Special civil action against a tribunal, corporation, board, or person exercising judicial, quasi-judicial or ministerial
function which is alleged by an aggrieved party to be acting or about to act without jurisdiction, in excess of its jurisdiction
or with grave abuse of discretion amounting to lack or excess of jurisdiction

1.1 There is no appeal, or any plain, speedy and adequate remedy in the ordinary course of the law

1.2 Praying that judgment be rendered commanding the respondent to desist from further proceeding in the action or
proceeding therein or otherwise granting such incidental reliefs as law and justice may require. 961

DISTINGUISHED FROM CERTIORARI

1. In certiorari the object is to correct the respondents acts by annulling proceedings, while in prohibition it is to
prevent the commission of an act or stopping proceedings.

2. In the former, the assailed acts have already been done, while in the latter the assailed acts are about to be done
or are being done.

3. In the former, the respondent performs judicial or quasi- judicial, while in the latter, the respondent performs
judicial, quasi-judicial functions or ministerial functions.

WHAT CONSTITUTES JUDICIAL AND QUASI-JUDICIAL POWER

1. The exercise of judicial function is to determine what the law is, and what the legal rights of parties are, with
respect to a matter is controversy; and whenever an office is clothed with that authority, and undertakes to determine
those questions, he acts judicially.962

2. A quasi-judicial act or function is a judicial act or function performed by one who is not a judge.

WHAT CONSTITUTES GRAVE ABUSE OF DISCRETION

1. Capricious and whimsical exercise of judgment as may be equivalent to lack or excess of jurisdiction.

WHAT IS MANDAMUS

1. It is a special civil action against a tribunal, corporation, board, or officer alleged in a verified petition filed by an
aggrieved party to have unlawfully neglected the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station, or unlawfully excluded another from the use and enjoyment of a right or office to
which such other is entitled.

1.1 There is no plain, speedy or adequate remedy in the ordinary course of the law

1.2 Praying that judgment be rendered commanding the respondent, immediately or at some other time specified by
the Court to do the act required to be done to protect the rights of the petitioner, pay damages sustained by reason of the
wrongful acts.

2 ASPECTS OF MANDAMUS

1. The aspects of Mandamus are: (a) respondent unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust or station or (b) respondent unlawfully excludes another from
the use and enjoyment of a right or office to which such other is entitled.

2. The legal right of the plaintiff (petitioner) to the thing demanded must be well defined, clear and certain. The
corresponding duty of the defendant (respondent) to perform the required act must also be clear and specific. 963

3. Mandamus lies only to compel performance of a ministerial duty but not to compel performance of a discretionary
duty.964
961
Supra, Section 2, Rule 65
962
Municipal Council of Lemery, Batangas v Provincial Board of Batangas, 56 PHIL 260
963
Enriquez, Jr v Bidin, 47 SCRA 183
964
Calderon v Sol, 215 SCRA 876
3.1 In granting mandamus, respondent is commanded to perform the particular act or required to be done and to pay
the damages sustained by the petitioner by reason of the wrongful acts of the respondent.

4. An act is ministerial when officer or tribunal performs in a given state of facts, in a prescribed manner in
obedience to the mandate of a legal authority without regard to the exercise of his own judgment. If given the authority to
decide how and when, it is discretionary.

5. Mandamus does not lie to correct / enforce contractual obligations.

HOW DISTINGUISHED FROM CERTIORARI/PROHIBITION

1. In Mandamus, the respondent is exercising ministerial power and he has unlawfully neglected to perform it or
excluded a party from occupying or enjoying the privilege of an office to which he is lawfully entitled and the object is to
compel action.

2. In Certiorari, the respondent is exercising judicial or quasi-judicial powers without jurisdiction or with grave abuse
of discretion amounting to an excess or lack of jurisdiction and the object is to correct.

3. In prohibition , the respondent is exercising judicial, quasi-judicial or ministerial powers and he is acting or about
to act without jurisdiction or with grave abuse of discretion amounting to an excess or lack of jurisdiction, and the object is
to prevent

WHEN MAY IT BE FILED

1. Not later than 60 days from notice of the assailed judgment, order or resolution.

1.1 But if a timely motion for reconsideration is filed, whether required or not, the 60 days period shall be counted
from notice of the denial of the motion.965
1.2 An extension may be granted for compelling reasons but in no case to exceed 15 days.

WHERE ELSE CAN BE FILED OTHER THAN THE COURT OF APPEALS

1. The petition may be filed in the Supreme Court, the Regional Trial Court if relates to an act / omission of a lower
court, corporation, board, officer or person within its territorial jurisdiction, or the Sandiganbayan, if in aid of its appellate
jurisdiction

IT IS FILED WITH THE COURT OF APPEALS

1. Whether or not in aid of its appellate jurisdiction, when it involves acts / omissions of quasi-judicial body, unless
otherwise provided.

PARTIES TO BE IMPLEADED

1. In addition to the public respondents, the petition shall also join the person/s interested in sustaining the
proceedings and it shall be the duty of the private respondent to appear and defend both in his behalf and that of the
public respondents.

1.1 If costs are awarded, it shall be against private respondent only.

2. Unless otherwise directed by the court, the public respondents shall not appear or file an answer or comment. If
elevated to a higher court the public respondents shall be nominal parties, and unless directed shall not appear or
participate in the proceedings therein.966

ORDER TO COMMENT

1. If petition is sufficient in form or substance, a comment will be required, not a motion to dismiss. 967
965
Supra, Section 4, Rule 65, as Amended by A.M. 00-2-03-SC
966
Supra, Section 5, Rule 65
967
Supra, Section 6, Rule 65
1.1 Orders expediting proceedings / temporary restraining order / injunctions for the preservation of the rights of the
parties may be issued but the filing of the petition shall not interrupt the course of the principal case unless a Temporary
Restraining Order or Injunction is granted enjoining the public respondent from further proceeding. 968

ACTIONS THAT MAY BE TAKEN SUSBEQUENTLY

1. Court may hear or require filing of memoranda. If it finds the allegations to be true, it shall render judgment for the
relief prayed for or to which petitioner is entitled.

2. It may also dismiss if patently without merit, prosecuted manifestly for delay or issues are too unsubstantial to
require consideration.969

SERVICE / ENFORCEMENT OF JUDGMENT

1. Certified copy of judgment shall be served in such manger as the court may direct and disobedience thereto shall
be punished as contempt.

1.1 Execution may issue for any damages / cost in accordance with Section 1, Rule 39. 970

RULE 66 -QUO WARRANTO

Quo warranto literally means by what authority. It is a special civil action to determine the right to the use or exercise of public office or franchise
and to oust the holder from its enjoyment, if his claim is not well founded, or if he has forfeited his right to enjoy the privilege. The action may be
commenced for the Government by the Solicitor General or by a public prosecutor; or by a person claiming to be entitled to a public office or public
position usurped or unlawfully held or exercised by another may bring an action in his own name. Where a private person files the action, he must
prove that he is entitled to the controverted position, otherwise the respondent has a right to the undisturbed possession of his office. (See: Castro
vs. Del Rosario, 19 SCRA 196; Tecson vs. Comelc, 424 SCRA 277)

DEFINED

1. Quo Warranto is a special civil action brought by verified petition in the name of the Republic of the Philippines
against: (a) person who usurps, intrudes into or unlawfully holds or exercises a public office, positions or franchise (b)
public officer who performs an act that constitutes a ground for forfeiture of his office (c) an association that acts as a
corporation within the Philippines without legally being incorporated or without lawful authority to act. 971

2. It literally means by what authority.972

WHO CAN BRING A QUO WARRANTO PROCEEDING

1. An individual can bring a quo warranto action in his name when he is claiming to be entitled to a public office or
position usurped or exercised by another may bring an action. 973

968
Supra, Section 7, Rule 65
969
Supra, Section 8, Rule 65
970
Supra, Section 9, Rule 65
971
Supra, Section 1, Rule 66
972
Tecson v Comelec, 424 SCRA 277
973
Supra, Section 5, Rule 66
2. A quo warranto action must be commenced by the Solicitor General or Public Prosecutor when directed by the
President or upon complaint or otherwise he has good reason to believe that a cause can be established by proof. 974 If by
complaint, a request for indemnity for expenses and costs may be required to be deposited. 975

WHERE ACTION IS BROUGHT

1. Besides the Court of Appeals, the action can be brought before the Supreme Court, a Regional Trial Court
exercising jurisdiction over the area where the respondent/s reside but, if the Solicitor General commences the action, he
may bring it before a Regional Trial Court in Manila, the Court of Appeals or the Supreme Court. 976

WHEN FILED

1. Within 1 year from accrual of the cause of action arising from ouster or right to hold position

PARTIES AND CONTENTS OF PETITION

1. When the action is against the person for usurping a public office, position or franchise, the petition shall set forth
the name of the person who claims to be entitled thereto, if any with an averment of his right to the same and that the
respondent is unlawfully in possession thereof.

1.1 All persons who claim to be entitled may be made parties, and their respective rights may be determined in the
same action.977

2. A reduction of time for pleadings and other proceedings may be directed by the Court to secure the most
expeditious determination of the matters involved therein consistent with the rights of the parties. It can also take
precedence over other civil matters pending before the Court. 978

CONTENTS OF JUDGMENT

1. A judgment where the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a
public office, position or franchise shall state that he be ousted and altogether excluded therefrom, and that the rights of
the petitioner or relator, meaning the real party in interest, be determined as justice requires. 979
1.1 It can also include a judgment for costs980

1.2 The rights of a person entitled to public office include the right to demand of the respondent all books and papers
in his custody or control appertaining to the office, otherwise he may be punished for contempt. 981

2. Damages if recoverable must be in another action filed within 1 year from entry of judgment. 982

DISTINGUISH BETWEEN QUO WARRANTO AND ELECTION PROTEST

1. In Quo Warranto the issue is the disqualification / ineligibility of the proclaimed candidate, in a Protest the issue is
an irregularity in the election.

2. If in the former, if the respondent is ineligible, the petitioner does not occupy the position, while in the latter, the
protestant can occupy the position if he obtains a plurality of the votes.

DISTINGUISH BETWEEN QUO WARRANTO AS TO NATURE OF POSITION

974
Supra, Section 2, Rule 66
975
Supra, Section 3, Rule 66
976
Supra, Section 7, Rule 66
977
Supra, Section 6, Rule 66
978
Supra, Section 8, Rule 66
979
Supra, Section 9, Rule 66
980
Supra, Section 12, Rule 66
981
Supra, Section 10, Rule 66
982
Supra, Sections 10 and 11, Rule 66
1. In quo warranto involving an elective post the issue is the eligibility of candidate elected, while in that involving an
appointive post the issue is the legality of appointment.

2. In the former, if the respondent is found ineligible, the 2 nd highest vote getter, even if eligible cannot be declared
elected, while in the latter, the resolution shall determine who has been legally appointed and declare who is entitled to
occupy the office.

RULE 67 EXPROPRIATION

WHAT IS EXPROPRIATION

1. The taking of private property for public purpose upon the payment of just compensation. It is also known as
exercise of the power of eminent domain.

2. Public purpose which will justify expropriation of property generally means such activity which will serve as
convenience, safety, welfare, advantage, or benefit to the entire community, and not to a particular individual, class or
group of persons.

2.1 Public use is one which confers some benefit or advantage to the public. It is not confined to actual use by the
public. It includes the right of use by the public, whether it is exercised by one or some or many members of the public.

2.2 Public use contemplates indirect public benefit or advantage. 983 It must be considered in its general concept of
meeting a public need or a public exigency. 984 At present, whatever may be beneficially employed for the general welfare
satisfies the requirement of public use.985

3. The commencement of the action is necessary only when the owner refuses to agree to sell his property or if he
agrees to sell, he is not amenable to the price.

HOW EXERCISED

1. Filing of a verified complaint which shall state with certainty the right and the purpose of expropriation, describing
the real / personal property sought to be expropriated, joining as defendants all persons claiming / owning or occupying
any part thereof or interest therein.

1.1 Note that the subject can be either real / personal property. 986

2. If a local government unit intends to exercise the power of expropriation Section 19 of RA 7610 987, it must comply
with the following requisites: (a) An ordinance, not a resolution988 must be enacted authorizing local chief executive to
exercise the power of eminent domain (b) the purpose is for public use, purpose or welfare or for the benefit of the poor
and landless (c)there is payment of just compensation, and (d) a valid and definite offer has previously been made to the
owner but was not accepted.

WHERE FILED

1. Regional Trial Court, regardless of value as it is an action which is incapable of pecuniary estimation. 989

UPON FILING AND SERVICE OF SUMMONS

1. The defendant may file: (a) A Manifestation that he has no objection or defense to the action, or (b) An
Answer stating all objections and defenses to the taking of the property.

1.1 No counterclaim, cross claim or 3rd party complaint shall be allowed in the answer or any subsequent pleading. 990
983
Estate of Salud Jimenez v PEZA, 349 SCRA 240
984
Manosca v Court of Appeals, 252 SCRA 412
985
Reyes v NHA, 395 SCRA 494
986
Supra, Section 1, Rule 67
987
Local Government Code
988
Beluso v Muncipality of Panay, Capiz, GR No. 153974, August 7, 2006
989
Barangay San Roque v Heirs of Pastor, 334 SCRA 127
990
Supra, Section 3, Rule 67
1.2 The non filing of an answer does not result in the defendant being declared in default nor does it bar him from
presenting evidence as to the amount of compensation due and to share in the distribution of the award.

2. The plaintiff may upon making a deposit in or with an authorized government depository of an amount equal to the
assessed value of the property for purposes of taxation may take possession of the real property.

2.1 If it involves personal property, its value as provisionally ascertained. 991

2.2 Note that under Section 19 of the Local Government Code, the LGU can take possession upon deposit with the
court of fifteen (15%) percent of the Fair Market Value based on the current tax declaration.

2.3 Under RA 8974,992 the government is required to make immediate payment to the property owner upon filing of
the complaint equivalent to the market value as stated in the current tax declaration or the zonal value whichever is
higher, plus the value of the improvements using the replacement cost method. 993

3. The case now proceeds to a determination of the authority of the plaintiff to expropriate.

3.1 Thereafter, the court may dismiss the petition or issue an order of expropriation or order of condemnation.

3.2 The order of expropriation is appealable but shall not prevent the determination of just compensation.

3.3 Since the order of expropriation has been entered, the plaintiff cannot dismiss or discontinue the case except on
terms that the court deems just and equitable.994

4. The right of plaintiff to enter into the property and appropriate shall not be delayed by an appeal. However, if
appellate court determines that no right of expropriation exists, it shall order the RTC to enforce restoration and determine
the damages that the defendant sustained.995

5. Just compensation is then determined by no more than 3 court appointed commissioners. If the Court accepts
their report, it will render judgment based thereon. Such judgment is also appealable. 996 The receipt by the defendant of
the compensation does not strip him of the right to appeal as the rules provide that the plaintiff may execute its judgment
as soon as it is obtained.997

5.1 Just compensation is defined as the full and fair equivalent of the property sought to be expropriated considering
the cost of acquisition, current value of like properties, actual or potential uses and in case of lands, their size, shape and
location.998

5.2 As a rule, the just compensation to be determined is that which obtains at the time of the taking of the property or
the filing of the action, whichever comes first. 999The rationale is that the owner must be compensated only for what he
actually loses, regardless of appreciation or depreciation subsequent to taking possession or filing of the action.

5.3 If upon determination of just compensation, the ownership is uncertain or claims are conflicting, the court may
order sum / sums paid to be given to the Court for the benefit of the person adjudged in the same proceeding to be
entitled thereto but payment will be required to be given to the defendant or the court before plaintiff can enter into or
retain the property.1000

5.4 The plaintiff shall have the right to enter into the property and expropriate for public use or retain it if already
entered. If defendant or counsel absent themselves from the court or decline to receive the amount, it shall be deposited
in the court and shall have the effect of actual payment.1001

991
Supra, Section 2, Rule 67
992
An Act to Facilitate the Acquisition of a Right of Way Site for National Governement Infrastructure Projects and Other Purposes
993
Republic v Gingoyon, GR No. 166429, December 19, 2005
994
Supra, Section 4, Rule 67
995
Supra, Section 11, Rule 67
996
Supra, Sections 5,6,7, and 8, Rule 67
997
City of Manila v Batlle, 25 Phil 566
998
NPC v De La Cruz, GR No. 156093, February 2, 2007
999
Republic v Sarabia, 468 SCRA 142
1000
Supra, Section 9, Rule 67
1001
Supra, Section 10, Rule 67
5.5 Title will pass only upon full payment of the just compensation. 1002

5.6 Non payment does not entitle the landowner to recover possession. However, if the government fails to pay just
compensation within 5 years from finality of judgment, the owners shall have the right to recover the property. 1003

5.7 When private land is expropriated for a particular public use and that public use is abandoned, the land
expropriated: (a) shall not revert if the acquisition is in fee simple unconditional, or (b) is re-acquired if expropriated with a
condition that if the public use is abandoned or ended, title reverts to former owner. 1004

6. The judgment shall state definitely, by an adequate description, the particular property or interest therein
expropriated and the nature of the public use or purpose for which it is expropriated, a certified copy of which judgment
shall be recorded in the registry of deeds and its effect shall to be shall to be vest in the plaintiff title to the real estate for
public use or purpose.1005

WHO PAYS FOR COSTS

1. All costs, except that incurred by rival claimants, shall be paid by the plaintiff unless an appeal is taken therefrom
by the owner of the property and the judgment is affirmed. Costs shall include the fees of the commissioners. 1006

RULE 68 FORECLOSURE OF REAL ESTATE

NATURE OF THE ACTION

1. It is an action affecting interest in real property and is hence, a real action. Thus venue is where the real property
or a portion thereof is located.

1.1 If it involves several parcels of land in different provinces covered by a single mortgage contract, it can be filed in
any place where one of the parcels is located and the judgment so rendered may be executed in the other provinces. 1007

2. It is also an action that is incapable of pecuniary estimation. 1008

WHAT SHOULD BE STATED IN THE COMPLAINT/PETITION

1. The complaint in foreclosure of a mortgage or other encumbrance shall set forth: (a) Date and due execution of
the mortgage (b) Its assignments, if any (c) Names/residences of mortgagor/mortgagee (d) Description of the
mortgaged property (e) Statement of the date of the note or other documentary evidence of the obligation secured by the
mortgage (f) Amount claimed to be unpaid (g) Name/residences of persons having or claiming an interest in the property
subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants. 1009

WHAT COURT CAN DO

1. The action proceeds like an ordinary civil action.

2. After trial, if the court shall find the facts to be true, it shall ascertain the amount due the plaintiff and render
judgment for the sum with an order for it to be paid by the adverse party to the court or judgment oblige within a period of
not less than ninety (90) days nor more than one hundred twenty (120) days from entry of judgment, and that in case of
default, the property will be sold at public auction. This period is known as the Mortgagors Equity of Redemption. 1010

2.1 Distinguishing Equity of Redemption from Right of Redemption: (a) Equity of Redemption is the equitable right of
the mortgagor to redeem, while Right of Redemption is the statutory right of the mortgagor to redeem. (b) The former is
available before auction sale, while the latter is available after auction sale (c) The former is available only judicial
1002
Federated Realty Corporation v Court of Appeals, 477 SCRA 707
1003
Yujuico v Atienza, Jr., 472 SCRA 463
1004
Fery v Municipality of Cabanatuan, 42 Phil 28
1005
Supra, Section 13, Rule 67
1006
Supra, Section 12, Rule 67
1007
El Hogar Filipino v Seva, 57 Phil 573
1008
Russel v Vestil, 304 SCRA 738
1009
Supra, Section 1, Rule 68
1010
Supra, Section 2, Rule 68
foreclosure, while the latter is available only in extra-judicial foreclosure, but by exception is allowed in judicial foreclosure
when the mortgagee is the PNB or a bank or a banking institution (d) The period for the exercise of the former is within 90
days but no more than 120 days from entry of foreclosure judgment, while in the latter it is one year from redemption is
within one year from date of registration of the sheriffs certificate of sale, except when the mortgagor is a juridical person,
in which case, the right to redeem must be exercised until, but not after, the registration of the certificate of sale with the
applicable register of deeds which in no case shall be more than three months after foreclosure, whichever is earlier. 1011

3. If not paid, upon motion, the court shall order the property sold in the manner prescribed under Rule 39, such sale
shall not affect the rights of persons holding prior liens/encumbrances on the property or parts thereof.

3.1 Upon motion, sale shall be confirmed, and such shall operate to divest the rights in the property of all the parties
to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law.

3.2 Note that when judicial foreclosure is resorted to there is no right of redemption except when the law allows a
redemption. Example: Section 47 of the Philippine General Banking Law which allows a one year period for redemption.

3.3 Upon finality of the order of confirmation or upon expiration of the period of redemption when allowed by law, the
purchaser at auction is entitled to possession unless a third party is holding it adversely to the judgment obligor, in which
case, the purchaser at the auction sale may secure a writ of possession from the Court ordering the sale. 1012

3.4 What is to be registered is the order of confirmation. If there is no right of redemption, the title of the mortgagor is
cancelled and a new one issued in the name of the purchaser.

3.5 If with right of redemption, the annotation is to await final deed of sale executed by Sheriff. 1013

4. Proceeds of the sale shall, after deducting the costs, be paid to the persons foreclosing the mortgage. If there be
a balance or residue, it shall be paid to the junior encumbrancers, in the order of priority ascertained by the Court, if none
or there still be a balance or residue after payment, to the mortgagor. 1014

5. If debt is not all due, as soon as a sufficient portion of the property has been sold to pay the total amount, the sale
shall terminate. Afterwards, no more shall be sold, but if property cannot be sold in portions, the entire property is to be
sold with rebate of interest if proper when the full debt is paid. 1015

6. There can be a deficiency judgment if there is a balance. Upon motion, the court shall render judgment against
the defendant for the balance which may then be the subject of execution.

6.1 If the balance is due at the time of rendition of judgment or at such time as the remaining balance becomes due
under the terms of the original contract, which time shall be stated in the judgment. 1016

7. Note that the provisions of Section 31 as to use of premises by obligor, Section 32 as to rents still due the obligor,
and Section 34 as to recovery of price if sale is not effective under Rule 39 are applicable insofar as they are not
inconsistent.1017

RULE 69 PARTITION

A partition agreement which was executed pursuant to a will that was not probated can not be given effect. 1018

OBJECT OF PARTITION

1011
Section 47, Philippine General Banking Law
1012
Supra, Section 3, Rule 68
1013
Supra, Section 7, Rule 68
1014
Supra, Section 4, Rule 68
1015
Supra, Section 5, Rule 68
1016
Supra, Section 6, Rule 68
1017
Supra, Section 8, Rule 68
1018
Rodriguez v Rodriguez, 532 SCRA 642 (September 11, 2007)
1. Separate, divide and assign a thing that is held in common among those to whom it may belong. The remedy may
be availed of regardless of whether it involves real or personal property, or both

WHO CAN FILE AND HOW

1. Any person, having the right to compel partition of real estate may file, setting forth therein the nature and extent
of his title, adequate description of the property, joining as defendants all other persons interested in the property. 1019

2. Partition and Accounting under this rule is in the nature of a quasi in rem action 1020.

PROCEDURE

1. If after trial, it finds for the plaintiff, it will order partition. This is known as the order of partition

1.1 A final order decreeing partition and accounting may be appealed by the party aggrieved thereby. 1021

2. Thereupon, if the parties agree, the parties may undertake the partition among themselves by proper instruments.
The court shall thereupon confirm the partition so agreed by the parties. Such partition and order of confirmation shall
then be recorded in the registry of deed of the place where the property is situated.

2.1 If they fail to agree, the Court shall appoint not more than 3 commissioners, commanding them to set-off to the
plaintiff and each party in interest such part and proportion of the property as the court will direct. 1022

2.2 Before discharging their duties, the commissioners shall take an oath that they will faithfully discharge their duties,
and in so doing they shall view and examine the real property , shall hear the preferences of the parties, determine the
comparative value of the property, and shall set apart the same to the parties in lots or parcels as will be most
advantageous and equitable, having due regard to the improvements, situation and quality of the different parts
thereof.1023

2.3 If the property cannot be divided without prejudice to the interest of the parties, the court may order it assigned to
one of the parties willing to take the same, provided he pays to the other parties such amount as determined by the
commissioners to be equitable, unless one of the interested parties asks that the property be sold instead. 1024

2.4 A report should thereupon be made by the commissioners and filed with the court, which shall then give the
parties 10 days within which to file heir objections to the findings. No proceeding shall pass title to the property or bind the
parties until the court shall have accepted the report and rendered judgment thereon. Note though that the court has the
option to accept or re-commit the matter to the commissioners. 1025

2.5 If actual partition of the property is made, judgment shall state definitely the metes and bounds and adequate
description of the property, the particular portion allocated to each party and its effect is to vest to each party in the action
in severalty the portion of real estate assigned to him. If the whole property is assigned to one after payment to the others,
judgment has the effect of vesting in the party making payment the whole of the real estate free from any interest of the
other parties. If the property is sold and proceeds divided, judgment has the effect of vesting the property or portion sold in
the purchaser free from any interest of the parties to the action. 1026Judgment may include recovery from the other of just
share of rents and profits received by the other from the real estate in question 1027 and costs equitably apportioned among
the parties.1028

2.6 This judgment is called the judgment of partition and may be the subject of an appeal.

RULE 70- FORCIBLE ENTRY, ILLEGAL/UNLAWFUL DETAINER


1019
Supra, Section 1, Rule 69
1020
Valmonte v Court of Appeals, 52 SCRA 92
1021
Supra, Section 2, Rule 69
1022
Supra, Section 3, Rule 69
1023
Supra, Section 4, Rule 69
1024
Supra, Section 5, Rule 69
1025
Supra, Sections 6 and 7, Rule 69
1026
Supra, Section 11, Rule 69
1027
Supra, Section 8, Rule 69
1028
Supra, Section 10, Rule 69
WHAT IS FORCIBLE ENTRY AND UNLAWFUL DETAINER

1. Forcible Entry is an action brought when a person is deprived of possession of land/building by force, intimidation,
stealth or threat.

2. Unlawful Detainer is an action brought by a lessor, vendor, vendee or other person against whom possession of
land/building is unlawfully withheld after expiration or termination of the right to hold possession, by virtue of a contract,
express or implied.

2.1 Such action must be brought within one year after withholding such possession. It is also known as an accion
interdictal which seeks to recover possession de facto or physical, actual or material possession.

3. Note that it is the character or nature of the defendants possession which will determine which of the two actions
is appropriate.

4. In addition to restitution of possession, damages and costs may also be recovered. 1029

UNLAWFUL DETAINER OR FORCIBLE ENTRY OR ACCION INTERDICTAL DISTINGUISHED

1. From Accion Publiciana- which is a plenary action to recover right of possession that is brought after one year
from accrual of the cause of action in a Regional Trial Court

2. From Accion Reivindicatoria- which is an action to recover ownership, including possession.

WHAT IS REQUIRED FOR THE ACTION TO BE FILED

1. In Illegal Detainer ,unless otherwise stipulated, the lessor can proceed against lessee only after demand to pay or
comply with the conditions of the lease and to vacate is made upon the lessee

1.1 Or by serving written notice of such demand upon the person found within the premises

1.2 Or by posting such notice on the premises if no person is found thereon and the lessee fails to comply within 15
days in the case of land or 5 days in case of building. 1030

1.3 If the lease is on a month to month basis, demand to vacate is necessary to terminate the lease upon expiration of
the month so as to prevent tacita reconduccion. 1031 It is also necessary when one occupies upon tolerance or permission
without a contract as the occupant is bound by an implied promise to vacate upon a demand. 1032

1.4 If action is due to the termination of the lease due to the expiration of its term, demand is not a
prerequisite.1033Neither is it required when there is a stipulation dispensing with the need for demand.

2. No demand is required in Forcible Entry cases.

WHEN, WHERE FILED AND NATURE OF PROCEEDINGS

1. Cases of Forcible Entry/Unlawful Detainer are to be filed within one year from date of actual entry or date of last
demand before the Municipal Trial Court and shall be covered by the Rules on Summary Procedure, irrespective of the
amount of damages or unpaid rentals, unless they are covered by agricultural tenancy laws or otherwise provided by
law.1034

PROCEDURE TO BE FOLLOWED

1029
Supra, Section 1, Rule 70
1030
Supra, Section 2, Rule 70
1031
Yap v Cruz, 208 SCRA 692
1032
Sps. Llobrera v Fernandez, GR No. 142882, May 2, 2006
1033
Lanuza v Munoz, 429 SCRA 562
1034
Supra, Section 3, Rule 70
1. The only allowable pleadings are the complaint, compulsory counterclaim and cross-claim pleaded in the answers
and answers thereto. All pleadings are to be verified. 1035

2. Upon filing of the complaint, the court may, from an examination of the allegations in the complaint and such
evidence attached thereto, dismiss the complaint on any of the grounds for a motion to dismiss which are apparent
therein.

2.1 If not dismissed, it shall proceed to issue summons.1036

3. If summons is issued, the defendant shall file his answer within 10 days from receipt, serving a copy thereof to the
plaintiff. It is an error on the part of the judge to give the defendants 15 days to file an answer. 1037

3.1 Affirmative or negative defenses not pleaded are deemed waived, except lack of jurisdiction over the subject
matter.

3.2 Crossclaims or counterclaims not asserted are barred. If the answer contains crossclaims or counterclaims,
answers thereto are to be filed within 10 days from service of the answer in which they are pleaded. 1038

4. Failure to answer the complaint within the period above provided, the court, motu proprio, or on motion of the
plaintiff, shall render judgment as may be prayed for therein: Provided, however, That the court may in its discretion
reduce the amount of damages and attorneys fees claimed for being excessive or otherwise unconscionable. This is
without prejudice to the applicability of Section 3, Rule 9 of the Rules of Court, if there are two or more defendants. 1039

5. A preliminary conference is then scheduled not later than 30 days after the last answer is filed. The provision of
Rule 18 on pre-trial shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule.

5.1 The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his
complaint.

5.2 The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in
accordance with Section 6 hereof. All cross-claims shall be dismissed.

5.3 If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Section 6
hereof. This Rule shall not apply where one of two or more defendants sued under a common cause of action who had
pleaded a common defense shall appear at the preliminary conference.

5.4 No postponement shall be granted except for highly meritorious grounds and without prejudice to sanctions which
the court may deem to impose.1040

6. Within 5 days after the termination of the preliminary conference, an order shall be issued by the court stating the
following matters: (a) Whether the parties have arrived at an amicable settlement, and if so, the terms thereof (b)The
stipulations or admissions entered into by the parties (c) Whether, on the basis of the pleadings and the stipulations
and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event
the judgment shall be rendered within thirty (30) days from issuance of the order (d) A clear specification of material facts
which remain controverted; and (e) Such other matters intended to expedite the disposition of the case. 1041

7. Within 10 days from receipt of the order, the parties shall submit the affidavits of their witnesses, evidences and
position papers setting forth the law and the facts relied upon. 1042

7.1 The affidavits submitted shall only state the facts of direct personal knowledge of the affiant which are
admissible in evidence and must indicate their competence to testify. A violation may subject the party or counsel to
disciplinary action and will be cause to expunge the inadmissible affidavit or portion thereof from the record. 1043
1035
Supra, Section 4, Rule 70, Article II, Section 3 (a) and (b), Rules on Summary Procedure
1036
Supra, Section 5, Rule 70, Article II, Section 4, Rules on Summary Procedure
1037
Santos vs. Tanciongco, 567 SCRA 134
1038
Supra, Section 6, Rule 70, Article II, Section 5, Rules on Summary Procedure
1039
Supra, Section 7, Rule 70, Article II, Section 6, Rules on Summary Procedure
1040
Supra, Section 8, Rule 70, Article II, Section 7, Rules on Summary Procedure
1041
Supra, Section 9, Rule 70, Article II, Section 8, Rules on Summary Procedure
1042
Supra, Section 10, Rule 70, Article II, Section 9, Rules on Summary Procedure
1043
Supra, Section 14, Rule 70, Article II, Section 20, Rules on Summary Procedure
8. The following petitions, motions, or pleadings are prohibited and shall not be allowed to be filed:

(a) Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to
comply with the preceding section pertaining to referral to the Lupon for conciliation. The case may then be dismissed
without prejudice and may be revived upon showing of compliance.1044 The filing of a motion to dismiss after an answer is
filed does not violate the rules. What is proscribed is a motion to dismiss that stops the running of the period for the filing
of an answer and cause undue delay.1045

(b) Motion for a bill of particulars;

(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; A motion for reconsideration
can be filed when the case is already pending before the appellate court. 1046 And a motion for reconsideration of rulings or
pertaining to other incidents, not of the judgment is allowed 1047

(d) Petition for Relief from Judgment

(e) Motion for extension of time to file pleadings, affidavits or any other paper;

(f) Memoranda;

(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;

(h) Motion to declare the defendant in default;

(i) Dilatory motions for postponement;

(j) Reply;

(k) Third-party complaints; and

(l) Interventions.1048

9. A preliminary mandatory injunction may be granted by the court upon motion presented within 5 days from the
filing of the complaint to restore him in possession, which should be decided by the court within 30 days from filing
thereof1049 and upon motion of the plaintiff, within 10 days from perfection of an appeal to the Regional Trial Court to
restore him in possession if the court is satisfied that the appeal of the defendant is frivolous or dilatory or that the
plaintiffs appeal is prima facie meritorious.1050

10. The court shall then render judgment within 30 days after receipt of the last affidavits and position papers, or the
expiration of the period for filing the same.

10.1 However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an
order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said
matters within ten (10) days from receipt of said order.

10.2 Judgment shall be rendered within fifteen (15) days after the receipt of the last clarificatory affidavits, or the
expiration of the period for filing the same.

10.3 The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment. 1051

11. Should the defense of ownership be raised, the court shall only consider the same if the issue of possession
cannot be resolved without deciding the issue of ownership. It shall thus be resolved only to determine possession and
1044
Supra, Section 12, Rule 70, Article IV, Section 18, Rules on Summary Procedure
1045
Heirs of Olivas v Flor, 161 SCRA 393
1046
Jakihaca v Aquino, 181 SCRA 67
1047
Lucas v Fabros, 324 SCRA 1
1048
Supra, Section 13, Rule 70, Article IV, Section 19, Rules on Summary Procedure
1049
Supra, Section 15, Rule 70, Article II, Section 10, Rule on Summary Procedure
1050
Supra, Section 20, Rule 70
1051
Supra, Section 11, Rule 70, Article
any judgment shall be conclusive only on possession and shall not be a bar to another action between the parties
respecting the title to the land or building1052

12. The judgment to be rendered by the court in favor of the plaintiff shall include restitution of the premises, the sum
justly due as arrears of rent or as reasonable compensation for the use of the premises, attorneys fees and costs. If the
allegations are not true, it shall render judgment for the defendant for recovery of cost. If a counterclaim is established, the
court shall render judgment for the sum found in arrears from either party and award costs as justice requires. 1053

12.1 While the general rule in ejectment cases that the recoverable damages are fair rental value or reasonable
compensation for the use or occupation of real property, liquidated damages may be recovered if so stipulated. 1054

12.2 The judgment is appealable to the appropriate Regional Trial Court, which shall decide the case on the basis of
the entire record of the proceedings in the court of origin and such memoranda or brief as may be submitted or
required1055

12.3 If judgment is rendered against the defendant, the execution shall issue immediately upon motion, unless an
appeal has been perfected and the defendant to stay execution files a sufficient supersedeas bond if there are rentals in
arrears1056, approved by the court and executed in favor of the defendant to pay rents, damages and costs accruing down
to the time of the judgment appealed from, and unless, during the pendency of the appeal, he deposits with the appellate
court the amount of the rent due from time to time under the contract or the reasonable value for use and occupation
adjudged by the court on or before the 10th day of each succeeding month or period.1057

12.4 In conformity with Section 19, Rule 70 of the 1997 Rules of Civil Procedure, it has been consistently ruled that if
no supersedeas bond is filed, the trial court, upon motion, may correctly order execution of judgment. 1058 Note that there is
no necessity for a motion for the court to fix the supersedeas bond as the amount of the same can be ascertained from
the judgment. Also, if the records of the case have already been transmitted to the appellate court, the supersedeas bond
may be filed with the appellate court.1059

12.5 The filing of a notice of appeal and payment of the necessary docket does not stay the execution of the decision.

12.6 The judgment of the appellate court shall however be subject to immediate execution without prejudice to a further
appeal1060

PERSONS BOUND BY A JUDGMENT IN EJECTMENT CASES

1. In an ejectment case, the judgment is binding on: (a) a sublessee as his right is subsidiary to that of the lessee 1061
(b) a guest or successor in interest, including members of the family of the lessee, his servants and employees 1062(c)
trespassers, squatters or agents of the defendant, and (d) transferees pendente lite.

RULE 71 CONTEMPT

WHAT IS CONTEMPT

1. Willful disobedience or open disrespect of the orders, authority, or dignity of a court or judge acting in judicial
capacity by disruptive language or conduct or by failure to obey the orders of the court

KINDS OF CONTEMPT

1052
Supra, Sections 16 and 18, Rule 70
1053
Supra, Section 17, Rule 70
1054
Azcuna, Jr. v Court of Appeals,255 SCRA 215
1055
Supra, Section 18, Rule 70
1056
Supra, Section 8, Rule 70 and De Laureano v. Adil, 72 SCRA 146
1057
Supra, Section 19, Rule 70
1058
Silverio v Court of Appeals, 407 SCRA 240
1059
Chua v Court of Appeals, 286 SCRA 437
1060
Supra, Section 21, Rule 70
1061
Dela Cruz v Roxas, 75 Phil 457
1062
Ariem v Delos Angeles, 49 SCRA 343
1. Direct Contempt consists of misbehaviour in the presence of or so near a court as to obstruct or interfere with
the proceedings before the same, it includes, disrespect, offensive personalities against others, refusal to be sworn or
answer as a witness, or to subscribe to an affidavit/deposition when lawfully required to do so.

1.1 This kind of contempt may be summarily adjudged and be punished by a fine not exceeding PHP 2,000.00 or
imprisonment of not exceeding 10 days or both if it be by a Regional Trial Court or a fine not exceeding PHP 200.00 or
imprisonment not exceeding 1 day or both if it be by a Municipal Trial Court.

1.2 The remedy therefrom is certiorari/ prohibition, in which case the judgment is suspended pending the petition
provided the petitioner files a bond fixed by the court which rendered the judgment and conditioned that he will abide by
and perform the judgment should the petition be decided against him. 1063

1.3 It is direct contempt if a pleading contains derogatory, offensive or malicious statements against a particular judge
when submitted in the same court where the judge is presiding. If submitted elsewhere, it is indirect contempt. 1064

2. Indirect Contempt consists of (a) Misbehavior of an officer of a court in the performance of his official duties or in
his official transactions; (b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court,
including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process
of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property for
the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person
adjudged to be entitled thereto; (c) Any abuse of or any unlawful interference with the processes or proceedings of a
court not constituting direct contempt under Section 1 of this Rule; (d) Any improper conduct tending, directly or indirectly
to impede, obstruct, or degrade the administration of justice; (e) Assuming to be an attorney or an officer of a court, and
acting as such without authority; (f) Failure to obey a subpoena duly served; (g) The rescue, or attempted rescue, of a
person or property in the custody of an officer by virtue of an order or process of a court held by him. But nothing in this
section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from
holding him in custody pending such proceedings.1065

2.1 This kind of contempt may be initiated motu propio by the court against which the contempt was committed by an
order or any formal charge requiring the respondent to show cause why he should not be punished for contempt. In other
cases, it shall be commenced by verified petition with supporting particulars and certified true copies of documents or
papers involved therein, and upon full compliance with the requirements for the filing of initiatory pleadings in the court
concerned.

2.2 If the charges are related to the principal action pending before the court, the petition shall so allege such fact but
it shall be docketed, heard and decided separately, unless the court in its discretion orders consolidation of the charge
and principal action for joint hearing and decision.1066

2.3 The charge shall be filed in the Regional Trial Court if the contempt is committed against it or a court of equal or
higher rank or against an officer appointed by it.

2.4 If against a lower court, it may be filed in the Regional Trial Court in the place where the lower court sits or in such
lower court, subject to appeal to the Regional Trial Court. 1067

2.5 This kind of contempt is punishable by a fine not exceeding P 30,000.00 or imprisonment not exceeding 6 months
or both, if committed against a Regional Trial Court. If against a Municipal Trial Court, by a fine not exceeding P 5,000.00
or imprisonment not exceeding 1 month. If it consists in a violation of a writ of injunction, TRO or status quo order, he may
also be ordered to make complete restitution. A writ of execution may be issued to enforce a fine. 1068 If it consists in
refusal or omission to do an act within his power to perform, he may be imprisoned by order of the court until it is
performed.1069

2.6 A judgment for indirect contempt is appealable to the Regional Trial Court, but execution shall not be suspended
without the filing of a bond.1070

1063
Supra, Sections 1 and 2, Rule 71
1064
Ang v Castro, 136 SCRA 453
1065
Supra, Section 3, Rule 71
1066
Supra, Section 4, Rule 71
1067
Supra, Section 5, Rule 71
1068
Supra, Section 7, Rule 71
1069
Supra, Section 8, Rule 71
1070
Supra, Section 11, Rule 71
2.7 An order dismissing a contempt charge or exoneration from such, is not appealable. 1071

OTHERS

1. If no hearings are held forthwith and the respondent has been taken into custody, he may be released upon
payment of a bond, but if he fails to appear on the hearing of the charge, he may be ordered arrested and the bond
forfeited.1072

2. If already imprisoned, the court may discharge the respondent if public interest will not be prejudiced by the
release.1073

APPLICABILITY OF THE RULE

The rules apply to persons, entities, bodies or agencies exercising quasi-judicial powers or shall have suppletory effect to
their rules. The RTC of the place where the contempt is committed shall have jurisdiction. 1074

DEFINING CRIMINAL AND CIVIL CONTEMPT

It is criminal contempt when the purpose is to vindicate the authority of the court and protect its outraged dignity. It is civil
contempt when there is failure to do something ordered by the court to be done for the benefit of another party. 1075

SALIENT PORTIONS OF KATARUNGANG PAMBARANGAY LAW

SCOPE OF APPLICATION

1. All disputes will require conciliation.

2. The exceptions are the following: (a) where one party is the government or any subdivision or instrumentality
thereof (b) where one party is a public officer or employee, and the dispute relates to the performance of his official
functions (c) offenses punishable by imprisonment exceeding 1 year or a fine exceeding PHP 5000.00 (d) offenses where
there is no private offended party (e) where the dispute is brought by or against a corporation, partnership or juridical
entity (f) where the dispute involves real properties located in different cities or municipalities unless the parties agree to
submit their differences to amicable settlement by an appropriate lupon (g) where dispute involves parties who actually
reside in barangays of different cities or municipalities, except when the barangays actually adjoin each other and the
parties agree to submit their differences to amicable settlement by an appropriate lupon (h) such other classes of disputes
which the President may determine in the interest of justice or upon recommendation by the Secretary of Justice (Section
408, PD 1508). (i) disputes arising from the implementation of the CARP (j) Employer-Employee disputes (k) action to
annul a judgment upon a compromise.

3. Note however that while no petition, complaint, action or proceeding within the authority of the lupon shall be filed
directly with the court or any government office for adjudication UNLESS there has been a confrontation before the lupon
chairman or pangkat, and that no conciliation or settlement has been reached as certified by the lupon secretary or
pangkat secretary, or unless the settlement has been repudiated within 10 days from its date by a statement sworn before
the punong barangay to the effect that his consent is vitiated by fraud violence or intimidation ( Section 418, PD 1508), the
following cases may be filed directly: (1) accused in under detention (2) person has otherwise been deprived of personal
liberty calling for habeas corpus proceedings (3) when action is coupled with a provisional remedy (4) where action may
otherwise be barred by prescription (Section 412, PD 1508)

VENUE

1. The proper venue for conciliation is as follows: (a) if between persons actually residing in the same barangay-
before the lupon of the said barangay (b) if between actual residents of different barangays within the same city of
municipality- before the lupon where the respondent resides, if there be several respondents- before the lupon where
anyone of them resides at the election of the complainant (c) if involving real property or any interest therein- the
1071
In Re, Mison, Jr, 33 SCRA 30
1072
Supra, Sections 6 and 9, Rule 71
1073
Supra, Section 10, Rule 71
1074
Supra, Section 12, Rule 71
1075
Yasay v Recto, 313 SCRA 739
barangay lupon where the property or larger portion is located (d) if arising in the workplace where the contending parties
are employed or at the institution where such parties are enrolled for study- before the lupon of the barangay where the
workplace or institution is located.

2. Any objection to venue shall be raised before the Punong Barangay, otherwise they are waived. Legal questions
may be submitted to the Secretary of Justice or his duly designated representative whose ruling thereon shall be binding.

PROCEDURE FOR CONCILIATION OR SETTLEMENT

1. The procedure for settlement is as follows:

(a) Initiation of complaint, orally or in writing, to the lupon chairman of the barangay

(b) Mediation by lupon chairman on the next working day from receipt of the complaint, failing in which within 15 days
from the first meeting, he shall forthwith set a date for the constitution of the pangkat

(c) The pangkat shall convene not later than 3 days from constitution to hear the parties and explore the possibility of
an amicable settlement within 15 days from the day it convenes, which period is extendible for another 15 days, except in
clearly meritorious cases.

2. Note however, that while prescription does not run upon filing of the complaint and shall resume only upon receipt
of the complaint or certificate of repudiation, or certification to file action, the interruption shall not exceed 60 days from
filing of the complaint with the punong barangay. (Section 410, PD 1508)

3. The form of the amicable settlement shall be in writing, in a language/dialect known to the parties, signed by them
and attested by the lupon/pangkat chairman (Section 411, PD 1508).

3.1 This shall have the force and effect of a final judgment of a court upon expiration of 10 days from date thereof
unless repudiation has been made or a petition to nullify the award has been filed before the proper court.

3.2 This does not apply to cases already pending but subsequently referred to the lupon for amicable settlement
under the last paragraph of Section 408,as the same is submitted back to the court to serve as basis for rendition of
judgment. (Section 416, PD 1508).

3.3 The award or settlement may be enforced by execution by the lupon within 6 months from the date of the
settlement. After the lapse of the said period, by action in the appropriate city of municipal court. (Section 417, PD 1508)

4. Note however that if a settlement is not complied with, the injured party may bring an action against the offending
party to recover the original amount of his claim, thereby rescinding the compromise under Article 2041 of the Civil Code
which was held to qualify Article 2037 of the Civil Code as to the effect of a compromise being considered as constituting
res judicata.1076

REVISED RULE ON
SUMMARY PROCEDURE

RESOLUTION OF THE COURT EN BANC DATED OCTOBER 15, 1991 PROVIDING FOR THE REVISED RULE ON
SUMMARY PROCEDURE FOR METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL
TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS.

1076
Chavez v Court of Appeals, GR 159411, March 18, 2005
Pursuant to Section 36 of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129) and to achieve an expeditious and
inexpensive determination of the cases referred to herein, the Court Resolved to promulgate the following Revised Rule
on Summary Procedure:

APPLICABILITY

SECTION 1. Scope: - This rule shall govern the summary procedure in the Metropolitan Trial Courts in Cities, the
Municipal Trial Courts, and the Municipal Circuit Trial Courts in the following cases falling within their jurisdiction:

A. Civil Cases:

(1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought
to be recovered. Where attorneys fees are awarded, the same shall not exceed twenty thousand pesos (P20,000).

(2) All other cases, except probate proceedings, where the total amount of plaintiffs claim does not exceed one
hundred thousand pesos (P100,000) or, two hundred thousand pesos (P200,000) in Metropolitan Manila, exclusive of
interest and costs. (As amended by A.M. No. 02-11-09-SC, dated Nov. 12, 2002; this amended took effect on November
25, 2002)

B. Criminal Cases:

(1) Violations of traffic laws, rules and regulations;


(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) Violations of Batas Pambansa Blg 221077
(5) All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment not
exceeding six months, or a fine not exceeding one thousand pesos (P1,000), or both, irrespective of other imposable
penalties, accessory or otherwise, or of the civil liability arising therefrom: Provided, however, That in offenses involving
damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed ten
thousand pesos (P10,000).

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 action subject to the ordinary procedure; nor to a criminal case where the offense charged is necessarily
related to another criminal case subject to ordinary procedure.

SEC. 2. Determination of applicability. Upon the filing of a civil or criminal action, the court shall issue an order
declaring whether or not the case shall be governed by this Rule.

A patently erroneous determination to avoid the application of the Rule of Summary Procedure is a ground for
disciplinary action.

II

CIVIL CASES

SEC. 3. Pleadings.

A. Pleadings, allowed. The only pleadings allowed to be filed are the complaints, compulsory
counterclaims and cross-claims pleaded in the answer, and the answers thereto.

B. Verification. All pleadings shall be verified.

SEC. A. Duty of court. After the court determines that the case falls under summary procedure, it may, from an
examination of the allegations therein and such evidence as may be attached thereto, dismiss the case outright on any of
the grounds apparent therefrom for the dismissal of a civil action.

If no ground for dismissal is found, it shall forthwith issue summons which shall state that the summary procedure
under this Rule shall apply.

1077
A.M. 00-11-01-SC, April 15, 2003
NOTE: That any of the grounds for dismissal under Rule 16 apply although no motion to dismiss can be filed except on
the grounds of lack of jurisdiction and non-compliance with the requirement on conciliation.

NOTE: That the prohibition as to the filing of a motion to dismiss exists prior to the filing of an answer but a dismissal
grounded on any of the causes stated in Rule 16 can only be effected prior to the issuance of the court of summons and
not after an answer has been filed (Heirs of Ricardo Olivas vs. Flor, 161 SCRA 393)

SEC. 5. Answer. Within ten (10) days from service of summons, the defendant shall file his answer to the
complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be
deemed waived, except for lack of jurisdiction over the subject matter. Cross-claims and compulsory counterclaims not
asserted in the answer shall be considered barred. The answer to counterclaims or cross-claims shall be filed and served
within ten (10) days from service of the answer in which they are pleaded.

SEC. 6. Effect of failure to answer. Should the defendant fail to answer the complaint within the period above
provided, the court, motu proprio, or on motion of the plaintiff, shall render judgment as may be prayed for therein:
Provided, however, That the court may in its discretion reduce the amount of damages and attorneys fees claimed for
being excessive or otherwise unconscionable. This is without prejudice to the applicability of Section 4, Rule 18 of the
Rules of Court, if there are two or more defendants.

NOTE: Rendition by the court of judgment on account of failure to file an answer or to appear during the preliminary
conference may not require a motion (Sordan vs. De Guzman, A.M. No. MTJ-00-1296, October 5, 2000)

SEC. 7. Preliminary conference; appearance of parties. Not later than thirty (30) days after the last answer is
filed, a preliminary conference shall be held. The rules on pre-trial in ordinary cases shall be applicable to the preliminary
conference unless inconsistent with the provisions of this Rule.

The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his
complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in
accordance with Section 6 hereof. All cross-claims shall be dismissed.

If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with Section 6
hereof. This Rule shall not apply where one of two or more defendants sued under a common cause of action who had
pleaded a common defense shall appear at the preliminary conference.

SEC. 8. Record of preliminary conference. Within five (5) days after the termination of the preliminary
conference, the court shall issue an order stating the matters taken up therein, including but not limited to:

(a) Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;

(b) The stipulations or admissions entered into by the parties;

(c) Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment
may be rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30)
days from issuance of the order;

(d) A clear specification of material facts which remain controverted; and

(e) Such other matters intended to expedite the disposition of the case.

SEC. 9. Submission of affidavits and position papers. Within ten (10) days from receipt of the order mentioned
in the next preceding section, the parties shall submit the affidavits of their witnesses and other evidence on the factual
issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them.

SEC. 10. Rendition of judgment. Within thirty (30) days after receipt of the last affidavits and position papers, or
the expiration of the period for filing the same, the court shall render judgment.

However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an
order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said
matters within ten (10) days from receipt of said order. Judgment shall be rendered within fifteen (15) days after the
receipt of the last clarificatory affidavits, or the expiration of the period for filing the same.
The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment.

NOTE: That hearings are not necessary unless for the purpose of clarifying certain material facts.

III

CRIMINAL CASES

Sec. 11. How commenced. The filing of criminal cases falling within the scope of this Rule shall be either by
complaint or by information; Provided, however, That in Metropolitan Manila and in Chartered Cities, such cases shall be
commenced only by information, except when the offense cannot be prosecuted de officio.

The complaint or information shall be accompanied by the affidavits of the complainant and of his witnesses in
such number of copies as there are accused plus two (2) copies of the courts files. If this requirement is not complied
with within five (5) days from date of filing, the case may be dismissed.

Sec. 12 Duty of court.

(a) If commenced by complaint. On the basis of the complaint and the affidavits and other evidence accompanying
the same, the court may dismiss the case outright for being patently without basis or merit and order the release of the
accused if in custody.
(b) If commenced by information. When the case is commenced by information, or is not dismissed pursuant to the
next preceding paragraph, the court shall issue an order which, together with copies of the affidavits and other evidence
submitted by the prosecution, shall require the accused to submit his counter-affidavit and the affidavits of his witnesses
as well as any evidence in his behalf, serving copies thereof on the complainant or prosecutor not later than ten (10) days
from receipt of said order. The prosecution may file reply affidavits within ten (10) days after receipt of the counter-
affidavits of the defense.

Sec. 13 Arraignment and trial. Should the court, upon a consideration of the complaint or information and the
affidavits submitted by both parties, find no cause or ground to hold the accused for trial, it shall order the dismissal of the
case; otherwise, the court shall set the case for arraignment and trial.

If the accused is in custody for the crime charged, he shall be immediately arraigned and if he enters a plea of
guilty, he shall forthwith be sentenced.

Sec. 14 Preliminary conference. Before conducting the trial, the court shall call the parties to a preliminary
conference during which a stipulation of facts may be entered into, or the propriety of allowing the accused to enter a plea
of guilty to a lesser offense may be considered, or such other matters may be taken up to clarify the issues and to ensure
a speedy disposition of the case. However, no admission by the accused shall be used against him unless reduced to
writing and signed by the accused and his counsel. A refusal or failure to stipulate shall not prejudice the accused.

Sec. 15 Procedure of trial. At the trial, the affidavits submitted by the parties shall constitute the direct
testimonies of the witnesses who executed the same. Witnesses who testified may be subjected to cross-examination,
redirect or re-cross-examination. Should the affiant fail to testify, his affidavit shall not be considered as competent
evidence for the party presenting the affidavit, but the adverse party may utilize the same for any admissible purpose.

Except on rebuttal or surrebuttal, no witness shall be allowed to testify unless his affidavit was previously
submitted to the court in accordance with Section 12 hereof.

However, should a party desire to present additional affidavits or counter-affidavits as part of his direct evidence,
he shall so manifest during the preliminary conference, stating the purpose thereof. If allowed by the court, the additional
affidavits of the prosecution or the counter-affidavits of the defense shall be submitted to the court and served on the
adverse party not later than three (3) days after the termination of the preliminary conference. If the additional affidavits
are presented by the prosecution, the accused may file his counter-affidavits and serve the same on the prosecution
within three (3) days from such service.

Sec. 16. Arrest of accused. The court shall not order the arrest of the accused except for failure to appear
whenever required. Release of the person arrested shall either be on bail or on recognizance by a responsible citizen
acceptable to the court.
Sec. 17 Judgment. Where a trial has been conducted, the court shall promulgate the judgment not later than
thirty (30) days after the termination of trial.

COMMON PROVISIONS

SEC. 18 Referral to Lupon. Cases requiring referral to the Lupon for conciliation under the provisions of
Presidential Decree No. 1508 where there is no showing of compliance with such requirement, shall be dismissed without
prejudice, and may be revived only after such requirement shall have been complied with. This provision shall not apply to
criminal cases where the accused was arrested without a warrant.

SEC. 19. Prohibited pleadings and motions. The following pleadings, motions, or petitions shall not be allowed
in the cases covered by this Rule:

(a) Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of
jurisdiction over the subject matter, or failure to comply with the preceding section;

(b) Motion for a bill of particulars;

(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;

(d) Petition for Relief from Judgment


(e) Motion for extension of time to file pleadings, affidavits or any other paper;

(f) Memoranda;

(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;

(h) Motion to declare the defendant in default;

(i) Dilatory motions for postponement;

NOTE: If motion is well grounded, it may be allowed.

(j) Reply;

(k) Third-party complaints; and

(l) Interventions.

SEC. 20. Affidavits. The affidavits required to be submitted under this Rule shall state only facts of direct
personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the
matters stated therein.

A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action,
and shall be cause to expunge the inadmissible affidavit or portion thereof from the record.

SEC. 21. Appeal. The judgment or final order shall be appealable to the appropriate regional trial court which
shall decide the same in accordance with Section 22 of Batas Pambansa Blg. 129. The decision of the regional trial court
in civil cases governed by this Rule, including forcible entry and unlawful detainer, shall be immediately executory, without
prejudice to a further appeal that may be taken therefrom.

NOTE: That immediate execution requires proof that the losing party has been served with notice of judgment (Dy vs. CA,
191 SCRA 585) and that notice of the motion for execution to the adverse party is required ( Limpo vs. CA, 333 SCRA
575)

SEC. 22. Applicability of the regular rules. The regular procedure prescribed in the Rules of Court shall apply to
the special cases herein provided for in a suppletory capacity insofar as they are not inconsistent herewith.

SEC. 23. Effectivity. This revised Rule on Summary Procedure shall be effective on November 15, 1991.
In fact, it has been declared that the motion for extension of time within which a party may plead is not a litigated motion
where notice to the adverse party is necessary to afford the latter an opportunity to resist the application, but an ex parte
motion made to the court in behalf of one or the other of the parties to the action, in the absence and usually without the
knowledge of the other party or parties. (Commercial Union Assurance Company Limited, et. al. vs. Lepanto Consolidated
Mining Company, et. al., L-43342. October 30, 1978, 86 SCRA 79, 95-96; Amante vs. Sunga, et. al., L-40491, May 28,
1975, 64 SCRA 192, 195)

Therefore, as long as it is filed within the period sought to be extended, a request for extension of time may be filed ex
parte and granted without the usual formalities applicable to motions in general. (Moya vs. Barton, 76 Phil. 831)

You might also like