REVIEWER IN REMEDIAL LAW Table of Contents

CIVIL PROCEDURE

Part 1: JURISDICTION 5 E. Summons 30

CIVIL PROCEDURE
I. Definition 5 F. Motions 31
II. Prescribed Jurisdiction 5 VI. Terminating the Action Before 34
III. Specific Jurisdiction 5 Trial 35
A. Supreme Court 5 A. Motion to Dismiss
B. Constitutional Commissions 7 B. Dismissal of Actions 35
C. Court of Appeals 7 C. Dismissal of Counterclaims/ 39
D. Regional Trial Courts 7 Cross-Claims/3rd-Party 40
E. Metropolitan, Municipal and 8 Complaints 40
Municipal Circuit Trial Court D. Defaults
F. Katarungang Pambarangay 9 E. Remedies of a Party Declared 40
In Default 42
Part 2: ORDINARY CIVIL ACTION 11 F. Judgment on the Pleadings
I. Preliminaries 11 G. Summary Judgments 43
A. Actions, In General 11 H. Partial Summary Judgment 43
B. Cause of Action 12 VII. Modes of Discovery 43
C. Requirements for a Person to 13 A. Depositions Under Rule 23 44
be a Party to a Civil Action B. Depositions Before Action 44
D. Parties to a Civil Action 14 Under Rule 24 46
E. Venue of Actions 18 C. Depositions Pending Appeal
II. Pleadings 19 Under Rule 24 47
A. Definition 19 D. Rule 23 Applies on the
B. Pleadings Allowed 19 Manner or Conduct of the 47
C. Parts of a Pleading 19 Deposition
D. Disciplinary Action on 20 E. Request for Admission Under 48
Counsel Regarding Pleadings Rule 26
E. Verification 20 F. Production or Inspection of 49
F. How a Pleading is Verified 20 Documents or Things
G. Certification of Non-Forum 20 G. Physical and Mental 49
Shopping (CNFS) Examination of a Party Under
H. Test to Determine WON There 20 Rule 28.
is Forum Shopping H. Consequences of Refusal 50
I. Effect of Submission of False 20 Under Rule 29
CNFS or Non-Submission of VIII. Pre-Trial 50
CNFS A. Notice of Pre-Trial 50
J. Effect of Wilful and Deliberate 20 B. Appearance of Parties C. Pre- 50
Forum Shopping Trial Brief 51
K. Different Pleadings 20 D. Record of Pre-Trial 51
III. Manner of Making Allegations 25 E. Calendar of Cases 51
A. In General 25 IX. Trial 52
B. Facts that may be Averred 25 A. Notice of Trial 52
Generally B. Adjournments and 52
C. Facts That must be Averred 25 Postponement
Particularly C. Subpoena 52
D. Three Ways of Making a 25 D. Conduct of Trial 53
Specific Denial E. General Order of Trial 53
IV. Acquisition of Jurisdiction 25 F. Agreed Statement of Facts 54
A. Filing and Service 25 G. Statement of the Judge 54
B. Papers Required to be Filed 25 H. Suspension of Actions 54
and Served I. Reception of Evidence 54
C. Proof of Filing 26 J. Trial by commissioner 54
D. Mode of Service 26 K. Consolidation and Severance 54
V. Amendment and Supplemental 26 L. Demurrer to Evidence 55
Pleadings 27 X. Judgements, Final Orders and 56
A. Amendment Entry of Judgment 56
B. Supplemental Pleadings 27 A. Parts of a Judgment 56
C. Bill of Particulars 28 B. Distinction between 56
D. Intervention 29 Judgment and Opinion of the

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REVIEWER IN REMEDIAL LAW Table of Contents
Court 56 Property Claimed by Third
C. Requisites of a Valid 56 Person
Judgment 56 M. Recovery Upon the Counter- 76

CIVIL PROCEDURE
D. Interpretation of the 58 Bond Disposition of Deposit/
Judgment 58 Attached Property After
E. Kinds of Judgment Judment
F. Amendments to Judgment 58 N. Improper Irregular or 76
G. Entry of Judgments and Final 58 Excessive Attachment
Orders 60 II. Preliminary Injunction 77
XI. Execution of Judgments 60 A. Definition 78
A. Execution as a Matter of Right B. Purpose 78
B. Discretionay Execution 62 C. Grounds 78
C. Execution of Judgments for D. Requirements 78
Money 63 E. Rule 58 Provides for both a 79
D. Execution of Judgments for Main Action for Injunction
Specific Acts 63 and an Ancillary Writ of
E. Execution of Special Preliminary Injunction
Judgments 68 III. Temporary Restraining Order 79
F. General Rules Governing (TRO)
Execution 68 A. Status Quo Order vs. 79
G. Effects of Judgments Or Final 69 Injunction
Orders B. Objection to/Motion for 80
XII. Summary Procedure 70 Dissolution of Injunction/
A. Scope 70 Restraining Order
B. Determination of Applicability 70 C. Global Injunction of a Foreign 80
C. The Only Pleadings Allowed 70 Court
D. Courty Duty 70 IV. Receivership 80
E. Answer 71 A. Nature 80
F. Effect of Failure to Answer 71 B. Appointment of Receiver 80
G. Preliminary Conference 71 V. Replevin 82
H. Record of Preliminary 71 A. Nature 82
Conference B. Requirements 82
I. Submission OF Affidavits and 71 C. Order of Replevin 82
Position Papers D. Disposition of Property by 83
J. Rendition of Judgment 71 Sheriff
K. Referral to Lupon 72 E. Where Property Claimed by 83
L. Prohibited Pleadings and 72 Third Person
Motions VI. Support Pende Lite 83
M. Affidavits 72 A. Nature 83
N. Appeal 72 B. Requirements 83
O. Applicability of the Regular 72 C. Verified Comment 84
Rules D. Hearing 84
E. Order of Support 84
Part 3: PROVISIONAL REMEDIES 73 F. Remedies of a Party Who Was 84
I. Preliminary Attachment 73 Erroneously Compelled to
A. Definition 73 Give Support
B. Purposes 73
C. Grounds 73 Part 4: SPECIAL CIVIL ACTIONS 85
D. Stages in the Grant of 74 I. Interpleader 85
Preliminary Attachment 74 1. Definition 85
E. Issuance and Contents of 74 2. Purpose 85
Order of Attachment 3. When Proper 85
F. Contents of Affidavit of 74 4. Procedure 85
Applicant II. Declaratory Relief 86
G. Condition of Applicant’s Bond 74 1. Requisites 86
H. Manner of Attaching Property 74 2. Who May File 87
I. Effects of Attachment 75 3. Parties 87
J. Sale of Attached Property 76 4. Where Filed 87
K. Discharge of Attachment 76 5. When Court may Refuse to 87
L. Proceedings Where Attached 76 Declare Rights/Construe

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REVIEWER IN REMEDIAL LAW Table of Contents
Instruments Part 5: REMEDIES AND APPEALS 109
6. Similar Remedies Covered BY 87 I. KINDS 109
Rule 63 A. Before Finality 109

CIVIL PROCEDURE
III. Review of Judgments and Final 87 B. After Finality 109
Orders or Resolutions of the II. RECONSIDERATION AND NEW 110
COMELEC and COA 87 TRIAL
A. Scope 87 A. Rules 110
B. Procedure 87 B. Motion for Reconsideration 111
IV. Certiorari, Prohibition and 89 C. Motion for New Trial 112
Mandamus III. APPEAL 113
A. Procedure 91 IV. MODES OF APPEAL 114
V. Quo Warranto 92 A. MTC to RTC 114
A. How Comenced 92 B. MTC to RTC to CA 114
B. By Whom/Against Whom 92 C. MTC to RTC to CA to SC 114
C. Contents of Petition 92 D. MTC to SC 116
D. Venue 92 E. RTC to CA 116
E. When Filed 93 F. RTC to CA to SC 117
F. Judgment 93 G. RTC to SC 117
VI. Expropriation 93 H. CA to SC 117
A. Concept and Basis of 93 I. QJA to CA 117
Expropriation J. QJA to CA to SC 118
B. Two Stages in Expropriation 93 K. QJA to SC 118
Proceedings V. RULES 118
C. Procedure 94 A. General Rule 118
VII. Foreclosure of Real Estate 96 1. Procedure in the CA 118
Mortgage 2. Procedure in the SC 126
A. Complaint’s Contents 96 B. Questions of Fact vs. 127
B. Judgment 96 Questions of Law
C. Disposition of the Proceeds of 97 C. Notice of Appeal 128
the Sale D. Record on Appeal 128
D. Deficiency Judgment 97 E. Perfection of Appeal 129
E. Registration 97 F. Period to Appeal 129
VIII. Partition 98 VI. SPECIAL TOPIC: REMEDIES 130
A. Complaint 99 FROM A VOID JUDGMENT
B. Venue 99
C. When to File 99 APPENDICES 132
D. Order of Partition 99 APPENDIX 1: Service of Summons 132
E. Partition by Agreement 99 upon Different Entities
F. Partition by Commissioners 100 APPENDIX 2: Subpoena Duces 133
G. Judgment 100 Tecum and Order for the Production
IX. Forcible Entry and Unlawful 101 or Inspection
Detainer APPENDIX 3: Consequences of 134
A. Actions for the Recovery of 101 Refusal under Rule 29
Possession of Real Property APPENDIX 4: Procedure for 136
B. Forcible Entry 102 Expropriation
C. Unlawful Detainer 102
D. Pleadings 103
E. Procedure 103
F. Preliminary Injunction 105
G. Matters not Constituting 105
Prejudicial Question to
Ejectment
X. Contempt 106
A. Definition 106

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REVIEWER IN REMEDIAL LAW Part 1: Jurisdiction

Civil Procedure
FACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE

CIVIL PROCEDURE
Prof. Theodore O. Te REMEDIAL LAW LECTURES
FACULTY EDITOR
Bryan San Juan Edel Cruz
SUBJECT EDITOR HEAD
ACADEMICS COMMITTEE
CIVIL PROCEDURE --------
Samantha Poblacion Kae Guerrero
DIRECTOR FOR ACADEMICS Hermie Banayat-Nas
PRINTING AND DISTRIBUTION
EDITOR-IN-CHIEF Blanca Labay
LEAD WRITERS --------
Rania Joya Mike Rivera Leo Zulueta
DEPUTY DIRECTOR FOR ACADEMICS LOGO, COVER AND TEMPLATE DESIGN
Res Rosario
LAYOUT HEAD
WRITERS

Part 1:  Exception: Jurisdiction by estoppel.

Jurisdiction [Soliven v. Fastforms (2004)]
 Rationale: To prohibit parties from
I. DEFINITION accepting judgments of court only if
II. PRESCRIBED JURISDICTION favorable to them.
III. SPECIFIC JURISDICTION  Cannot be the subject of compromise
A. SUPREME COURT [Art. 2035, CC]
B. CONSTITUTIONAL COMMISSIONS  Once attached to a court, cannot be
C. COURT OF APPEALS [SEC. 9, BP 129] ousted by subsequent statute.
D. REGIONAL TRIAL COURTS  Exception: The statute itself conferring
E. METROPOLITAN, MUNICIPAL AN
new jurisdiction expressly provides for
MUNICIPAL CIRCUIT TRIAL COURT
F. KATARUNGANG PAMBARANGAY retroactive effect. [Southern Food v.
Salas (1992)]
 The filing of the complaint or
I. DEFINITION
appropriate initiatory pleading and the
payment of the prescribed docket fee
 Power of the court to hear an action or
vest a trial court with jurisdiction over
proceedings, and to render a judgment
the subject matter or the nature of the
thereon which will bind the parties to
action (Asked in the 2008 Bar Exam).
such action/proceeding. [Regalado]
 Exception: The court may allow
 Judicial power includes the duty of the
payment of the fee within a reasonable
courts of justice: [Art 8, Sec. 1, Consti]
time, but in no case beyond the
1) To settle actual controversies involving applicable prescriptive period. [IBP v.
rights which are legally demandable and Legasto (2006)]
enforceable;
2) To determine WON there has been a III.SPECIFIC JURISDICTION
grave abuse of discretion amounting to
lack or excess of jurisdiction on the part A. Supreme Court
of any government branch/
instrumentality.  The judicial power shall be vested in
one SC and in such lower courts as may
II. PRESCRIBED JURISDICTION be established by law. [Art. 8, Sec. 1,
Consti]
 Jurisdiction over a particular subject
matter.  SC’S POWERS [Art. 8, Sec. 5, Consti]
 Conferred only by the Constitution or by 1. HAVE ORIGINAL JURISDICTION
law. OVER:
 Determined by the allegations in the  Cases affecting ambassadors
complaint. and other public ministers and
 An error in jurisdiction can be raised at consuls;
any time and even for the first time on  Petitions for certiorari,
appeal. [David v. Cordova (2005)] prohibition, mandamus, quo
 Cannot be waived; Judgment warranto, and habeas corpus.
without jurisdiction is void.

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REVIEWER IN REMEDIAL LAW Part 1: Jurisdiction
2. REVIEW/REVISE/REVERSE/MODI  (The CA’s findings are
FY/AFFIRM ON APPEAL OR contrary to the admissions of
CERTIORARI, FINAL both parties.

JUDGMENTS/ORDERS OF LOWER
COURTS ON:
 Constitutionality/validity of any
treaty, international or executive
agreement, law, presidential
decree/proclamation/order/
instruction, ordinance
regulation;
 Legality of any tax /impost
/assessment /toll, or any
penalty imposed in relation
thereto;
 Any lower court’s jurisdiction;
3. CRIMINAL CASES WHERE THE
PENALTY IMPOSED IS RECLUSION
PERPETUA OR HIGHER;
4. ONLY ERRORS/QUESTIONS OF
LAW ARE INVOLVED.
 Exception: [Josefa v. Zhandong
(2003)]
 The conclusion is grounded
on
speculations/surmises/conje
ctures;
 (The inference is manifestly
mistaken/absurd/impossible
;
 (There is grave abuse of
discretion;
 The judgment is based on a
 misapprehension of facts;
 The findings of fact are
conflicting;
 (There is no citation of
specific
 evidence on which the
factual
 findings are based;
 The finding of absence of
facts is
 contradicted by the presence
of
 evidence on record;
 The CA’s findings are
contrary to
 those of the trial court;
 The CA manifestly
overlooked certain relevant
and undisputed facts that, if
properly considered, would
justify a different conclusion;
 The CA’s findings are beyond
the issues of the case;
CIVIL PROCEDURE
Distinctions between Questions of Law
and Fact (Asked in the 2004 Bar Exam)
 A question of law exists when the doubt
or controversy concerns the correct
or application of law or jurisprudence to a
certain set of facts;
 or when the issue does not call for an
examination of the probative value of
the evidence presented, the truth or
falsehood of facts being admitted.
 A question of fact exists when the doubt
or query invites calibration of the whole
evidence considering mainly the
credibility of the witnesses, the
existence and relevancy of specific
surrounding circumstances, as well as
their relation to each other and to the
whole, and the probability of the
situation (Mendoza vs. Salinas, 2007).
5. TEMPORARILY ASSIGN JUDGES OF
LOWER COURTS TO OTHER STATIONS
AS PUBLIC INTEREST MAY REQUIRE,
WHICH SHALL NOT LAST 6 SIX
MONTHS WITHOUT THE CONSENT OF
THE JUDGE CONCERNED.
6. ORDER A CHANGE OF VENUE OR
PLACE OF TRIAL TO AVOID A
MISCARRIAGE OF JUSTICE.
7. PROMULGATE RULES ON:
 Protection and enforcement of
constitutionalrights;
 Pleading/practice/procedure in all
courts;
 Admission to the practice of law;
 The integrated bar;
 e) Legal assistance to the under-
privileged.
 • Guidelines on the rules:
 (1) Simplified and inexpensive
procedure
 for the speedy disposition of cases;
 (2) Uniform for all courts of the
same
 grade;
 (3) Not diminish/increase/modify
 substantive rights.
8. APPOINT ALL JUDICIARY
OFFICIALS/EES IN ACCORDANCE
WITH THE CIVIL SERVICE LAW.

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REVIEWER IN REMEDIAL LAW
B. Constitutional Commissions
 General rule: Decisions/orders/rulings
of constitutional commissions (CSC,
COMELEC and COA) may be brought to
the SC on certiorari by the aggrieved
party, within 30 days from receipt of
copy. [Art. 9-A, Sec. 7, Consti]
 Exception: If otherwise provided by the
Constitution or by law.
 CSC judgments/decisions/orders are
within the exclusive appellate
jurisdiction of the CA through Rule
43.[RA 7902]
 CTA judgments/decisions are not
appealable by petition for review on
certiorari to the SC. [RA 9282]
C. Court of Appeals [SEC. 9, BP 129]
 ORIGINAL JURISDICTION
 Mandamus, prohibition, certiorari,
habeas corpus and quo warranto,
and auxiliary writs/processes,
 WON in aid of its appellate
jurisdiction.
 EXCLUSIVE ORIGINAL JURISDICTION
 Annulment of RTC judgments.
 EXCLUSIVE APPELLATE
JURISDICTION
 Final judgments /decisions
/resolutions /orders/ awards of:
a. RTC;
b. 2)Quasi-judicial agencies
/instrumentalities/boards/commiss
ions including:
a. SEC;
b. Social Security Commission;
c. ECC;
d. CSC.
 Exception: Those falling within the
SC’s appellate jurisdiction of the
Supreme Court in accordance with:
a. The Constitution;
b. Labor Code;
c. BP 129;
d. Sec. 17, Par. 3(1) and Par.
4(4) of
e. the Judiciary Act of 1948.
St. Martin’s Funeral Home v. NLRC (1998)
 Supposed appeals from the NLRC to the
SC are interpreted and hereby declared
to mean and refer to petitions for
certiorari under Rule 65.
 All such petitions should henceforth be
initially filed in the CA in strict
observance of the doctrine on the
hierarchy of courts as the appropriate
forum for the relief desired.
Part 1: Jurisdiction
 POWERS
1) Try cases;
2) Conduct hearings;
CIVIL PROCEDURE
 Trials/hearings must be
continuous and must be
completed within 3 months,
unless extended by the Chief
Justice.
1) Receive evidence;
2) Any and all acts necessary to resolve
factual issues raised, including the
power to grant and conduct new
trials or further proceedings.
D. Regional Trial Courts
1. EXCLUSIVE ORIGINAL JURISDICTION
IN CIVIL CASES [SEC. 19, BP 129,
ASKED IN THE 2002 BAR
EXAMINATIONS)
 Incapable of pecuniary estimation
(Asked in the 2000 Bar Exam);
 If the action is primarily for the
recovery of a sum of money, the
claim is considered capable of
pecuniary estimation, and
jurisdiction over the action will
depend on the amount of the claim.
[RCPI v. CA (2002)]
 If the basic issue is something other
than the right to recover a sum of
money, if the money claim is purely
incidental to, or a consequence of,
the principal relief sought, the
action is one where the subject of
the litigation may not be estimated
in terms of money. [Soliven v.
Fastforms (1992)]
1) If the thing sought to be deposited
or consigned is a sum of money, the
amount of the debt due is
determinable and capable of
pecuniary estimation. [Ascue v. CA
(1991)]
2) Action for support is incapable of
pecuniary estimation because the
court is asked to determine first
WON the plaintiff is indeed entitled
to support. [Baito v. Sarmiento
(1960)]
3) Action for specific performance is
incapable of pecuniary estimation.
[Manufacturer’s Distributor’s v. Yu
Siu Liong (1966)]
4) The jurisdiction of the respective
courts is determined by the value of
the demand and not the value of the
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REVIEWER IN REMEDIAL LAW
transaction out of which the
demand arose.
 The alternative prayer for
specific performance is also of
the same value, for the
alternative prayer would not
have been made in the
complaint if one was more
valuable than the other.[Cruz v.
Tan (1950)]
5) Rescission is a counterpart of
specific performance therefore also
incapable of pecuniary estimation.
[Lapitan v. Scandia (1968)]
6) Action for declaration of nullity of a
deed of partition is incapable of
pecuniary estimation. [Russel v.
Vestil (1999)]
7) An action for expropriation is
incapable of pecuniary estimation.
[Bardillon v. Masili (2003)]
 Title to, or possession of, real
property (or any interest therein) where
the property’s assessed value exceeds
P20K or P50K (for civil actions in Metro
Manila);
 Exception: Forcible entry into and
unlawful detainer of
lands/buildings.
 Admiralty and maritime jurisdiction
where the demand/claim exceeds
P300K or P400K (in Metro Manila);
 Maritime and admiralty cases
involve trade and transactions in the
sea. Maritime jurisdiction includes
maritime tort. [Negre v. Cabahug
(1966)]
 Probate (testate and intestate) where
the gross value of the estate exceeds
P300K or P400K (in Metro Manila);
 Marriage contract and marital
relations;
2. GENERAL ORIGINAL JURISDICTION –
 All cases not within the exclusive
jurisdiction of any court /tribunal
/person/ body exercising judicial or
quasi-judicial functions;
 Within the exclusive original jurisdiction
of a Juvenile and Domestic Relations
Court and of the Court of Agrarian
Relations;
 All other cases where the demand
(exclusive of interest, damages of
whatever kind, attorney's fees,
Part 1: Jurisdiction
litigation expenses and costs) or the
value of the property in controversy
exceeds P300K or P400K in Metro
CIVIL PROCEDURE
Manila.
 The exclusion of the term “damages
of whatever kind” in determining the
jurisdictional amount under Sec.
19(8) and Sec. 33 (1) of BP 129, as
amended by RA7691, applies to
cases where the damages are merely
incidental to or a consequence of the
main cause of action.
 However, if the claim for damages is
the main cause of action, or one of
the causes of action, the amount of
such claim shall be considered in
determining the jurisdiction of the
court.[Admin Circ. 09-94]
 Actions for damages based on quasi-
delicts are primarily and effectively
actions for the recovery of a sum of
money for the damages suffered
because of the defendant’s alleged
tortious acts.
 This money claim is the principal
relief sought, and is not merely
incidental thereto or a consequence
thereof. [Iniego v. Purganan(2006)]
3. ORIGINAL JURISDICTION [SEC. 21, BP
129]
 Certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction
which may be enforced in any part of
their respective regions;
 Actions affecting ambassadors and
other public ministers and consuls.
4. APPELLATE JURISDICTION [SEC. 22,
BP 129]
 All cases decided by
MeTCs/MTCs/MCTCs in their
respective territorial jurisdictions.
Metropolitan, Municipal and Municipal
Circuit Trial Courts
E. Metropolitan, Municipal and
Municipal Circuit Trial Courts
(asked in the 2002 Bar Exam)
1. EXCLUSIVE ORIGINAL JURISDICTION
[SEC. 33, BP 129]
 Civil actions and probate proceedings
(testate and intestate), including the
grant of provisional remedies, where the
value of the personal property, estate
or amount of the demand does not
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REVIEWER IN REMEDIAL LAW Part 1: Jurisdiction
exceed P300K or P400K (in Metro F. Katarungang Pambarangay
Manila);
 Interest, damages of whatever kind,  Purpose: To reduce the number of court

CIVIL PROCEDURE
attorney's fees, litigation expenses litigations and prevent the deterioration
and costs shall be included in the of the quality of justice which has been
determination of the filing fees. brought about by the indiscriminate
filing of cases in the courts. [Lumbuan v.
 If there are several claims or causes of Republic (2006)]
actions between the same/different
parties in the same complaint, the  General rule: Authority to bring
amount of the demand shall be the together the parties actually residing in
totality of the claims in all the causes of the same city or municipality for
action, WON the causes of action arose amicable settlement of all disputes.
out of the same/different transactions. [Sec. 480, RA 7160]
 Exceptions:
 Forcible entry and unlawful detainer;
 If one party is the government;
 If the defendant raises the question
 If one party is a public officer/EE
of ownership in his pleadings and
and
the question of possession cannot
 the dispute relates to the
be resolved without deciding the
performance
issue of ownership,
 of his official functions;
 the issue of ownership shall be
resolved only to determine the issue  Offenses punishable by
of possession. imprisonment exceeding 1 year or a
fine exceeding P5K;
 That the MeTC has jurisdiction even
in cases where the issue of  Offenses with no private offended
possession is closely intertwined party;
with the issue of ownership is now a  Real properties located in different
settled doctrine in ejectment  cities/municipalities;
proceedings. [Heirs of B. Hernandez o Exception to exception: Parties
v. Vergara (2006)] agree to submit their differences
to amicable settlement by an
 All civil actions that involve title to, appropriate lupon.
or possession of, real property (or any  Parties who actually reside in
interest therein) where the assessed barangays of different
value of the property (or interest cities/municipalities;
therein) does not exceed P20K or o Exception to exception: If such
P50K (in civil actions in Metro Manila). barangay units adjoin each
other and the parties agree to
2. DELEGATED JURISDICTION IN submit their differences to
CADASTRAL AND LAND amicable settlement by an
REGISTRATION CASES [SEC. 34, BP appropriate lupon.
129]  Such disputes which the President
may determine in the interest of
 Lots where there is no justice or upon the recommendation
controversy/opposition; of the Secretary of Justice.
 Contested lots the value of which does
 Venue [Sec. 409, RA 7160]
not exceed P100K.
 The value is to be ascertained: Nature of Dispute Venue
o By the claimant’s affidavit; Disputes between Their barangay
o By agreement of the respective persons actually
claimants, if there are more than residing in the same
one; barangay
o From the corresponding tax Disputes between Barangay where the
declaration of the real property. actual esidents of respondent (or any of
different barangays the respondents)
 MTC decisions in cadastral and land within the same actually resides, at
registration cases are appealable in city/municipality the complainant's
the same manner as RTC decisions. election

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REVIEWER IN REMEDIAL LAW Part 1: Jurisdiction
Disputes on real Barangay where the o By any party, within 10 days
property real from the date of the settlement;
(or any interest therein) property (or the larger o By filing with the lupon
portion thereof) is

CIVIL PROCEDURE
chairperson a statement to that
situated
effect, sworn to before him;
Disputes arising at the Barangay where the
workplace or at the workplace or
o Where the consent is vitiated by
institution where the institution is fraud/violence/intimidation;
parties located o Where there is sufficient basis
are enrolled for the issuance of the
certification for filing a
 Procedure For Amicable Settlement complaint.
[Sec. 410, Ra 7160]  If a petition to nullify the award was
filed before the proper
1) Any individual who has a cause of city/municipal court.
action against another individual may
complain (orally or in writing) to the  Execution [Sec. 417, RA 7160]
barangay’s lupon chairperson.  By the lupon, within 6 months from
2) Within the next working day, the lupon the date of the settlement.
chairperson shall summon the  After the lapse of the 6 months, by
respondents, with notice to the action in the appropriate
complainants, for them and their city/municipal court
witnesses to appear before him for
mediation. Note: In the 2006 Bar Exams, questions
3) If the mediation effort fails within 15 were asked on the following: (1) jurisdiction
days from the 1st meeting, he shall set of the Court of Tax Appeals En Banc in
a date for the constitution of the comparison with the Court of Tax Appeals
pangkat. Division, (2) the jurisdiction of the
4) While the dispute is under mediation, Ombudsman, and (3) cases handled by the
the prescriptive periods for offenses and Office of the Solicitor General. These areas
causes of action shall be interrupted are discussed in the proper subjects to
upon filing the complaint with the which they belong to namely Taxation and
punong barangay. Political Law.
5) Such interruption shall not exceed 60
days from the filing of the complaint
with the punong barangay.
6) The prescriptive periods shall resume
upon receipt by the complainant of the
complaint or the certificate of
repudiation or of the certification to file
action issued by the lupon or pangkat
secretary.
7) The pangkat shall arrive at a
settlement/resolution of the dispute
within 15 days from the day it
convenes, extendible for another period
which shall not exceed 15 days, except
in clearly meritorious cases.

 Note: In the 1999 Bar Examination, a

question was asked on the distinctions
between conciliation proceedings in the
Katarungang Pambarangay and the Pre-
trial Conference.

 Effect [Sec. 416, RA 7160]

 General rule: Same as a court’s final
judgment, upon the expiration of 10
days from the date thereof.
 Exception: If the settlement was
repudiated:

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action

Part 2:
Ordinary Civil Action
 Distinguished from cause of action

CIVIL PROCEDURE
I. PRELIMINARIES (Asked in the 1999 Bar Exam):
II. PLEADINGS  A cause of action is the fact or
III. MANNER OF MAKING ALLEGATIONS combination of facts which affords a
IV. ACQUISITION OF JURSIDICTION party a right to judicial interference
V. AMENDMENT AND SUPPLEMENTAL in his behalf.
PLEADINGS  An action means an ordinary suit in
VI. TERMINATING THE ACTION BEFORE a court of justice, by which one
TRIAL
party prosecutes another for the
VII. MODES OF DISCOVERY
VIII. PRE-TRIAL enforcement or protection of a right,
IX. TRIAL or the prosecution or redress of a
X. JUDGEMENTS, FINAL ORDERS AND wrong (Into vs. Valle, 2005).
ENTRY OF JUDGMENT
XI. EXECUTION OF JUDGMENTS 2. KINDS OF ACTIONS
XII. SUMMARY PROCEDURE
 CRIMINAL ACTION – One by which the
I. PRELIMINARIES State prosecutes a person for an
act/omission punishable by law. [Rule
A. ACTIONS, IN GENERAL 1, Sec. 3(b)]
B. CAUSE OF ACTION  CIVIL ACTION – One by which a party
C. REQUIREMENTS FOR A PERSON TO BE A prosecutes another for the
PARTY TO A CIVIL ACTION enforcement/protection of a right or the
D. PARTIES TO A CIVIL ACTION
prevention/redress of a wrong. [Rule 1,
E. VENUE OF ACTIONS
Sec. 3(a)]
A. Actions, In General  Ordinary – Governed by rules for
ordinary civil actions;
1. DEFINITION  Special – Subject to specific rules
but also governed by rules for
 ACTION – An ordinary suit in a court of ordinary civil actions. [Rule 1,
justice by which one party prosecutes Sec.3(a) par 2]
another for the enforcement/protection  SPECIAL PROCEEDINGS – One by
of a right or the prevention/redress of a which a party seeks to establish a
wrong (Santos vs. Vda. De Caparas, status, a right, or a particular fact.
1959).

Distinctions between Civil Actions and Special Proceedings

(Asked in the 1998 Bar Exam)
Action Special Proceeding
As to parties Involves 2 or more parties Involves at least 1 party or 2 or more
parties in proper cases
As to cause of action Involves a right and a violation of such May involve a right, but there need
right by the defendant which causes not be a violation of this right
some damage/prejudice upon the
plaintiff
As to formalities Requires the application of legal Requires no such formalities, as it
remedies in accordance with the may be granted upon application
prescribed rules

As to governing rules Ordinary rules of procedure Special rules of procedure

As to appeal from an Cannot be directly and immediately Can be immediately and directly
interlocutory appealed to the appellate court until appealed to the appellate court
order after final judgment on the merits

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
3. CLASSIFICATION OF ACTIONS  Every ordinary civil action must be
based on a cause of action [Rule 2, Sec.
 As to nature: 1]

CIVIL PROCEDURE
Ordinary Civil Action Special Civil Action  A cause of action stems from the
Governed by ordinary Also governed by sources of obligations under Art. 1156,
rules ordinary CC - Law, Contract, Quasi-contract,
rules but subject to Acts and omissions punishable by law
specifically prescribed and Quasi-delict. [Sagrada de Orden v.
rules Nacoco (1952)]
(Rules 62 to 71)
3. SPLITTING OF CAUSE OF ACTION
 As to object:  Definition: The act of dividing a single or
indivisible cause of action into several
Real action Personal Mixed action parts or claims and bringing several
action actions thereon. It is not allowed.
[Regalado] (Asked in the 1998 Bar Exam
Ownership or Personal Both real and
particularly its comparison with joinder
possession of property is personal
real property is sought to be properties are of causes of action)
involved recovered or involved  A party may not institute more than one
damages for suit for a single cause of action. [Rule 2,
breach of Sec. 3]
contract are  Purpose: [City of Bacolod v. SM Brewery
sought (1969)]
Action in rem Action in Action
Founded on Founded on Founded on personam quasi in rem
privity of real privity of both
estate contract Directed Directed Directed
Filed in the Filed in the The rules on against the against against
court where court where venue of real thing itself particular particular
the the actions govern persons persons
property (or plaintiff or Jurisdiction Jurisdiction Jurisdiction
any portion any over the over the over the
thereof) is of the person of person of the person of the
situated defendants the defendant defendant is defendant is
resides, at is not required required not required
the as long as
plaintiff’s jurisdiction
option over the res is
acquired
 As to place of filing: A proceeding An action to A proceeding
Local action Transitory action to determine impose to subject the
One that could be One that could be the state/ responsibility/ interest of a
instituted in one prosecuted in any one condition of a liability upon named
specific place of several places thing a person defendant
directly over a
particular
property to an
B. Cause of Action obligation/lien
burdening it
1. DEFINITION Judgment is Judgment is Judgment is
 CAUSE OF ACTION – The act/omission binding on the binding only binding upon
by which a party violates a right of whole world upon parties particular
another. [Rule 2, Sec. 2] impleaded or persons
their
successors
2. ELEMENTS OF A CAUSE OF ACTION
in interest
 Plaintiff’s legal right; Ex: Accion Ex: Action for Ex: Action for
 Defendant’s correlative obligation to reivindicatoria; specific partition;
respect plaintiff’s right; annulment of performance; action to
 Defendant’s act/omission in marriage; action to foreclose real
violation of plaintiff’s right [Mao naturalization recover money estate
Sugar Central v. Barrios (1947) proceedings or property mortgage
)(Asked in the 1997 Bar Exam). (real or
personal)

Page 12 of 370
REVIEWER IN REMEDIAL LAW
 To prevent repeated litigation
between the same parties in regard
to the same subject or controversy;
 To protect the defendant from
unnecessary vexation. Nemo debet
vexare pro una et eadem causa (No
man shall be twice vexed for one
and the same cause);
 To avoid the costs and expenses
incident to numerous suits.
4. EFFECTS OF SPLITTING A CAUSE OF
ACTION [RULE 2, SEC. 4] (ASKED IN
THE 1999 AND 2005 BAR EXAMS)
a. Filing of the 1st complaint may be
pleaded in abatement of the 2nd
complaint, on the ground of litis
pendentia; or
b. A judgment upon the merits in any
of the complaints is available as
ground for dismissal of the others
based on res judicata.
c. A MTD under Rule 16 Sec. 1(e) or (f)
may be filed in order that the
complaint may be dismissed.
 A single act/omission can be violative of
various rights at the same time, as
when the act constitutes juridically a
violation of several separate and distinct
legal obligations.
 However, where there is only one
delict/wrong, there is but a single cause
of action regardless of the number of
rights that may have been violated
belonging to one person.
 The singleness of a cause of action lies
in the singleness of the delict/wrong
violating the rights of a person. If only 1
injury resulted from several wrongful
acts, only 1 cause of action arises.
[Joseph v. Bautista (1989)]
 For a single cause of action or violation
of a right, the plaintiff may be entitled
to several reliefs. It is the filing of
separate complaints for these several
reliefs that constitutes splitting up of
the cause of action which is proscribed
by Rule 2, Sec. 3 and 4. [City of Bacolod
v. SM Brewery (1969)]
5. JOINDER OF CAUSES OF ACTION
(ASKED IN THE 1998 BAR EXAM)
 The joinder of causes of action in one
complaint promotes the policy on
avoiding multiplicity of suits.
 The rule however is purely permissive
as the plaintiff can always file separate
actions for each cause of action
(Baldovir vs. Sarte, 36 Phil. 550)
Part 2: Ordinary Civil Action
6. REQUISITES FOR JOINDER OF
CAUSES OF ACTION [RULE 2, SEC. 5]
a. The party joining the causes of
CIVIL PROCEDURE
action must comply with the rules
on joinder of parties;
b. The joinder shall not include special
civil actions or actions governed by
special rules;
c. Where causes of action are between
the same parties but pertain to
different venues/jurisdictions, the
joinder may be allowed in the RTC
provided one of the causes of action
are within the RTC’s jurisdiction
and the venue lies therein;
 TOTALITY RULE - Where the claims in
all the causes of action are principally
for recovery of money, the aggregate
amount claimed shall be the test of
jurisdiction.
7. MISJOINDER OF CAUSES OF ACTIONS
[RULE 2, SEC. 6]
 Misjoinder of causes of action is not a
ground for dismissal of an action.
 A misjoined cause of action may, on
motion or motu propio, be severed and
proceeded with separately.
 There is no sanction against non-
joinder of separate causes of action
since a plaintiff needs only a single
cause of action to maintain an action
(Regalado).
C. Requirements for A Person to Be a
Party to a Civil Action
1. HE MUST BE EITHER:
 A natural person;
 A juridical person; or
 An entity authorized by law.
 The estate of a deceased person
[Limjoco vs. Intestate Estate of
Fragante (1948)] ;
 (A political party incorporated under
Act 1459 [now BP 68 (Corporation
Code)];
 A registered labor union [Sec. 243,
PD 442 (Labor Code)], with respect
to its property;.
 The Roman Catholic Church has
legal capacity to sue. [Barlin v.
Ramirez (1906)].
2. HE MUST HAVE THE LEGAL CAPACITY
TO SUE;
Page 13 of 370
REVIEWER IN REMEDIAL LAW
3. HE MUST BE THE REAL PARTY IN
INTEREST.
[Berman v. Cheng (2005)]
 The rule is that only natural or juridical
persons or entities authorized by law
may be parties in a civil case.
 A sole proprietorship is not vested with
juridical personality and cannot sue or
file or defend an action.
 There is no law authorizing sole
proprietorship to file a suit.
 A sole proprietorship does not possess a
judicial personality separate and
distinct from the personality of the
owner of the enterprise.
[Rimbunan v. Oriental (2005)]
 An unlicensed foreign corporation is
nonetheless permitted to bring suit in
the Philippines if it is suing on an
isolated transaction.
 Thus, the ascertainment of whether a
foreign corporation is merely suing on
an isolated transaction or is actually
doing business in the Philippines
requires the elicitation of at least a
preponderant set of facts.
Note: A foreign corporation may be party to
an action in Philippine courts:
1) If licensed to engage in business in the
2) Philippines, it may sue or be sued in
3) our courts;
4) If not licensed, it cannot sue, but it
5) may be sued in our courts;
6) If not engaged in business in the
7) Philippines, it may sue in courts on a
single isolated transaction, but it
cannot be sued in our courts on such
transaction.
Lack of legal capacity to Lack of legal
sue personality to sue
The plaintiff’s general The plaintiff is not
disability to sue, such as the real party in
on account of minority, interest
insanity, incompetence,
lack of juridical
personality or any other
general
disqualifications
It can be a ground for a It can be used as
MTD [Rule 16 (1) (d)] ground for a MTD
based on the failure
of complaint
state a cause of
action. [Rule 16 (1)
(g)]
Part 2: Ordinary Civil Action
D. Parties to a Civil Action
 PLAINTIFF – One having interest in the
CIVIL PROCEDURE
matter of the action or in obtaining the
relief demanded.
 DEFENDANT – One claiming an interest
in the controversy or the subject thereof
adverse to the plaintiff. The term may
also include [Rule 3, Sec 1):
 UNWILING CO-PLAINTIFF – A party
who should be joined as plaintiff but
whose consent cannot be obtained.
He may be made a defendant and
the reason therefore shall be stated
in the complaint. [Rule 3, Sec. 10]
 The original plaintiff becoming a
defendant to the original defendant’s
counterclaim [Rule 3, Sec 1];
1. CLASSIFICATION OF PARTIES
 REAL PARTY IN INTEREST - [Rule 3,
Sec. 2]
a. The party who stands to be
benefited/injured by the judgment
in the suit;
b. The party entitled to the avails of
the suit.
 The party’s interest must be direct,
substantial and material [Sumalo v.
Litton (2006)].
 Husband and wife shall sue and be
sued jointly, except as provided by
law [Rule 3, Sec. 4]
 A minor or a person alleged to be
incompetent may sue or be sued,
with the assistance of his father,
mother, guardian, or if he has none,
a guardian ad litem. [Rule 3, Sec. 5]
 REPRESENTATIVE PARTY – [Rule 3,
Sec. 3]
 Those acting in fiduciary capacity,
such as a
trustee/guardian/executor/administ
rator or a party authorized by law or
ROC.
 The beneficiary shall be included in
the title of the case and shall be
deemed to be the real party in
interest.
 An agent acting in his own name and
to for the benefit of an undisclosed
principal may sue or be sued without
joining the principal.
 Exception: If the contract
involves things belonging to the
principal. [Art. 1883, CC]
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
2. KINDS OF PARTIES IN INTEREST is deemed a waiver of the claim
against such party. [Rule 3, Sec. 9]
Indispensable parties Necessary parties  Minors (represented by their parents)

CIVIL PROCEDURE
[Rule 3, Sec. 7] [Rule 3, Sec. 8] are real parties in interest under the
Must be joined under Should be joined principle of intergenerational
any and all whenever possible; responsibility. [Oposa v. Factoran ()]
conditions, his the action can
presence being a sine proceed even in their
qua non for the absence  Note: This doctrine is inconsistent with
exercise of judicial Rule 3, Sec. 1 which provides that only
power natural or juridical persons may be
No valid judgment if The case may be parties in a civil action.
indispensable party is determined in court
not joined. but the judgment 3. KINDS OF JOINDERS OF PARTIES
therein will not
resolve the entire  Compulsory joinder of indispensable
controversy if a
parties; [Rule 3, Sec. 7]
necessary party is
not joined  Permissive joinder of:
They are those with They are those  necessary parties; [Rule 3, Sec. 8]
such an interest in the whose presence is  on a common question of law or
controversy that a necessary to fact; [Rule 3, Sec. 6]
final decree would adjudicate the whole  Class suit. [Rule 3, Sec. 12]
necessarily affect their controversy but  Alternative defendants; [Rule 3, Sec. 13]
rights so that the whose interests are
court cannot proceed so far separable that
a. PERMISSIVE JOINDER [Rule 3, Sec. 6]
without their a final decree can be
presence. made in their
 Parties can be joined, as plaintiffs or
absence without defendants, in one single complaint or
affecting them. may themselves maintain or be sued in
separate suits.
 Rule 3, Sec. 2 requires that an action  Requisites:
must be brought in the name of, but not 1) Right to relief arises out of the same
necessarily by, the real party in interest. transaction or series of transactions;
In fact, the practice is for an attorney-  SERIES OF TRANSACTIONS –
in-fact to bring an action. [Tuason v. Transactions connected with the
Bolanos] same subject matter of the suit.
 Neither misjoinder nor non-joinder of 2) There is a question of law or fact
parties is ground for dismissal of the common to all the plaintiffs or
action. [Rule 3, Sec. 11] defendants;
 Non-joinder of an indispensable party is 3) Such joinder is not otherwise
not a ground for outright dismissal. proscribed by the rules on
Reasonable opportunity must be given jurisdiction and venue.
for his inclusion by amendment of the
complaint[Cortez v Avila (1957)]. b. CLASS SUIT [RULE 3, SEC. 12]
 Objections to defects in parties should  Requisites
be made at the earliest opportunity. 1) Subject matter of the controversy is
 The moment such defect becomes one of common/general interest to
apparent, a motion to strike the names many persons;
of the parties must be made. 2) The persons are so numerous that it
 Objections to misjoinder cannot be is impracticable to join them all as
raised for the first time on appeal. parties (i.e. impracticable to bring
 If a necessary party is not joined, the them all before the court);
pleading shall set forth his name (if 3) Parties bringing the class suit are
known) and shall state reason why he is sufficiently numerous and
omitted. representative of the class and can
 If court finds the reason for the fully protect the interests of all
omission unmeritorious, it may concerned;
order the inclusion of the omitted 4) The representative sues/defends for
necessary party if jurisdiction over the benefit of all.
his person may be obtained.  If a class suit is improperly brought, the
 Failure to comply with the order for action is subject to dismissal regardless
inclusion, without justifiable cause,

Page 15 of 370
REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
of the cause of action [Rule 16, Sec 1 4. UNKNOWN IDENTITY OR NAME OF
(d)]. DEFENDANT [RULE 3, SEC. 13]
 A taxpayer's suit or a stockholder's

CIVIL PROCEDURE
derivative suit is in the nature of a class  Rules and requisites:
suit, although subject to the other a. There is a defendant;
requisites of the corresponding b. His identity or name is unknown;
governing law especially on the issue of c. A fictitious name may be used
locus standi. [Regalado] because of ignorance of defendant's
 In a class suit, any party in interest true name and said ignorance is
shall have the right to intervene to alleged in the complaint;
protect his individual interest. d. An identifying description may be
used (e.g. as unknown
Class Suit Permissive Joinder of owner/heir/devisee);
Parties e. Pleading is amended when the
There is a single cause There are multiple identity or true name is discovered;
of action pertaining to causes of action
f. The unknown defendant is the
numerous persons. separately belonging to
several persons.
defendant being sued, not a mere
additional defendant.
CLASS SUIT AND DERIVATIVE SUIT,  Service of summons upon a defendant
COMPARED whose identity is unknown may be
(Asked in the 2005 Bar Examination) made by publication in a newspaper of
CLASS SUIT DERIVATIVE SUIT general circulation in accordance with
When the subject  An action brought Rule 14, Sec. 14.
matter of the by minority
controversy is one of shareholders in 5. ENTITY WITHOUT JURIDICAL
common or general the name of the
PERSONALITY AS DEFENDANT [RULE
interest to many corporation to
persons, and the redress wrongs
3, SEC. 15]
parties are so committed against
numerous that it is it, for which the  Requisites:
impracticable to bring directors refuse to a. There are 2 or more persons not
them all before the sue. organized as a juridical entity;
court, one or more  It is a remedy b. They enter into a transaction;
may sue or defend for designed by equity c. A wrong is committed against a 3rd
the benefit of all. (Rule and has been the person in the course of such
3.12) principal defense
transaction.
of the minority
shareholders  Persons associated in an entity without
against abuses by juridical personality may be sued under
the majority. the name by which they are
 In a derivative generally/commonly known, but they
action, the real cannot sue under such name.
party in interest is  The service of summons may be effected
the corporation upon all the defendants by serving upon
itself, not the any of them, or upon the person in
shareholders who
charge of the office or place of business
actually instituted
it (Lim vs. Lim Yu maintained under such name. [Rule 14,
2001) Sec. 8]

c. Alternative Defendants [Rule 3, Sec. 13] 6. SUBSTITUTION OF PARTIES

 Where the plaintiff is uncertain against
whom of several persons he is entitled
to relief,
 he may join any or all of them in the
alternative, although a right to relief
against one may be inconsistent with a
right to relief against the other.
 Death of a party, where the claim is not
extinguished by the death of the party
(e.g. cases involving property and
property rights); [Rule 3, Sec. 16] (Asked
in the 1998 and 1999 Bar Exams)
 In this case, the heirs will be
substituted for the deceased or if no
legal representative is named, the
court will order the opposing party to
procure the appointment of an
executor or administrator for the
estate.

Page 16 of 370
REVIEWER IN REMEDIAL LAW
 In case of minor heirs, the court
may appoint a guardian ad litem for
them.
 The substitute defendant need not
be summoned. The order of
substitution shall be served upon
the parties substituted for the court
to acquire jurisdiction over the
substitute party.
 When a party to a pending action
dies and the claim is not
extinguished, it is the counsel’s
duty to:
a) Inform court within 30 days
after such death of the fact
thereof;
b) Give the name and address of
the legal representatives.
 Failure to comply with this duty is a
ground for disciplinary action.
 Death or separation of a party who is a
public officer; [Rule 3, Sec. 17]
 Requisites:
a) Public officer is a party to an
action in his official capacity;
b) During the pendency of the
action, he either dies/resigns or
otherwise ceases to hold office;
c) It is satisfactorily shown to the
court by any party, within 30
days after the successor takes
office, that there is a substantial
need to continue/maintain the
action;
d) The successor adopts/continues
(or threatens to do so) his
predecessor’s action;
e) The party or officer affected was
given reasonable notice of the
application therefore and
accorded an opportunity to be
heard.
 Incompetency/incapacity; [Rule 3, Sec.
18]
 If a party becomes incompetent/
incapacitated during the pendency
of the action, the action survives
and may be continued by/against
the incompetent/ incapacitated
assisted by his legal guardian or
guardian ad litem.
 Transfer of interest during the pendency
of the action. [Rule 3, Sec. 18]
 General rule: The rule does not
consider the transferee an
indispensable party. Hence, the
action may proceed without the
need to implead him.
Part 2: Ordinary Civil Action
 Exception: When the substitution
by or joinder of the transferee is
ordered by court.
CIVIL PROCEDURE
o The case will be dismissed if the
plaintiff’s interest is transferred
to defendant
o unless there are several
plaintiffs, in which case the
remaining plaintiffs can
proceed with their own cause of
action.
7. ACTION ON CONTRACTUAL MONEY
CLAIMS [RULE 3, SEC. 20]
 Requisites:
1) The action must primarily be for
recovery of money/debt or interest
thereon;
2) The claim arose from
express/implied contract;
3) Defendant dies before the entry of
final judgment in the court in which
the action was pending.
 The defendant’s death will not result in
the dismissal of the action.
 The deceased shall be substituted by
his legal representatives in the manner
provided for in Rule 3, Sec. 16, and the
action will continue until the entry of
final judgment (Asked in the 2000 Bar
Exam)
 However, execution shall not issue in
favor of the winning plaintiff. It should
be filed as a claim against the
decedent’s estate without need of
proving the claim.
8. INDIGENT PARTY [RULE 3, SEC. 21]
 INDIGENT – One who has no money or
property sufficient and available for
food, shelter and basic necessities. He
need not be a pauper to entitle him to
litigate in forma pauperis.
 While the authority to litigate as an
indigent party may be granted upon an
ex parte application and hearing, it may
be contested by the adverse party at any
time before judgment is rendered.
 If one is authorized to litigate as an
indigent, the authority shall include an
exemption from:
1) Payment of docket fees;
2) Payment of TSN.
 The amount of docket and other lawful
fees is a lien on any judgment rendered
in favor of indigent party, unless court
otherwise provides.
Page 17 of 370
REVIEWER IN REMEDIAL LAW
9. NOTICE TO THE SOLICITOR GENERAL
[RULE 3, SEC. 21]
 The court may require appearance of
the OSG in actions involving validity of
any treaty, law, ordinance, EO, PD,
rules or regulations.
E. Venue of Actions
1. DEFINITION
 VENUE – Place of trial or geographical
location in which an action/proceeding
should be brought.
Distinctions between Venue and Jurisdiction
(Asked in the 2006 and 2008 Bar Exams)
Place where the action Power of the court to
is instituted hear and decide a case
May be waived Jurisdiction over the
subject matter and over
the nature
of the action is
conferred by law and
cannot-be waived
Procedural Substantive
May be changed by Cannot be the subject
the written agreement of the agreement of the
of the parties parties
2. PROPER VENUES
a. Real actions – Where the real property
(or any portion thereof) is located. [Rule
4, Sec. 1] (Asked in the 2006 Bar Exams,
compare with Personal Actions)
 If the property is located at the
boundaries of 2 places, file the case in
either place (at the plaintiff’s option).
 If the case involves 2 properties located
in 2 different places:
 If the properties are the object of the
same transaction, file it in any of the
2 places;
 If they are the objects of 2 distinct
transactions, separate actions
should be filed in each place unless
properly joined.
b. Personal actions – At the plaintiff’s
election: [Rule 4, Sec. 2] (Asked in the
1997 bar Exam)
 Where the plaintiff or any of the
principal plaintiffs resides;
 Where the defendant or any of the
principal defendants resides;
 In case of a non-resident-defendant,
where he may be found.
Part 2: Ordinary Civil Action
c. Actions against non-residents –
 Non-resident found in the
Philippines –
CIVIL PROCEDURE
(1) For personal actions – Where
the plaintiff resides;
(2) For real actions – Where the
property is located.
 Non-resident not found in the
Philippines – An action may be filed
only when the case involves:
(1) Personal status of plaintiff -
Where plaintiff resides;
(2) Any property of said defendant
located in the Phil. - Where the
property (or any portion thereof)
is situated/found.
 Actions in personam/in rem refers to
the binding effect of the judgment.
Real/personal action, on the other hand
refers to venue.
 Where several/alternative reliefs are
prayed for in the complaint, the nature
of the action as real or personal is
determined by the primary object of the
suit or by the nature of the principal
claim.
 Thus, where the purpose is to nullify
the title to real property, the venue of
the action is in the province where the
property lies, notwithstanding the
alternative relief sought, recovery of
damages, which is predicated upon a
declaration of nullity of the title.
 The venue of an action for review of an
administrative decision regarding real
property is the court of the province
where the officer who rendered the
decision holds office, and not the
province where his real property is
situated.[Salud v. Exec Secretary (1969)]
 The Court may not motu propio dismiss
an action on the ground of improper
venue. [Dacoycoy v. IAC (1991)]
 Exception: In summary
procedures.
 The SC has the power to change the
venue to prevent a miscarriage of
justice. [Art. 8, Sec. 5, Consti]
3. WAIVER OF VENUE
 Until and unless the defendant objects
to the venue in a motion to dismiss
prior to a responsive pleading, the
venue cannot truly be said to have been
improperly laid
 since for all intents and purposes, the
venue though technically wrong may yet
be considered acceptable to the parties
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
for whose convenience the rules on II. PLEADINGS
venue had been devised.
 Although venue is mandatory, it is A. DEFINITION

CIVIL PROCEDURE
waivable. [Diaz v. Adiong (1993)] B. PLEADINGS ALLOWED
C. PARTS OF A PLEADING
4. MEANS OF WAIVING VENUE D. DISCIPLINARY ACTION ON COUNSEL
1) Where parties validly agreed in writing REGARDING PLEADINGS
E. VERIFICATION
before the filing of the action on the
F. HOW A PLEADING IS VERIFIED
exclusive venue thereof [Rule 4, Sec 4 G. CERTIFICATION OF NON-FORUM
(b)]; and SHOPPING (CNFS)
2) Failure to raise improper venue as H. TEST TO DETERMINE WON THERE IS
affirmative defense or in motion to FORUM SHOPPING
dismiss I. EFFECT OF SUBMISSION OF FALSE CNFS
OR NON-SUBMISSION OF CNFS
 The court may declare agreements on J. EFFECT OF WILFUL AND DELIBERATE
venue as contrary to public policy if FORUM SHOPPING
K. DIFFERENT PLEADINGS
such stipulation unjustly denies a party
fair opportunity to file a suit in the
place designated by the Rules. A. Definition
[Regalado]
 In Sweet Lines, Inc v. Teves, 1978, the  They are the written statements of the
Court declared void and unenforceable respective claims and defenses of the
the agreement on exclusive venue parties, submitted to the court for
imprinted on passage tickets due to the appropriate judgment [Rule 6, Sec. 1]
state of the shipping industry which
could not provide enough Pleading Motion
accommodations for plaintiffs. Purpose: To submit a Purpose: To apply for
claim/defense for an order not included
[Regalado]
appropriate judgment in the judgment
 The agreement of parties must be
restrictive and not permissive [Regalado]
May be initiatory Cannot be initiatory
5. INAPPLICABILITY OF THE RULE ON as they are always
made in a case
VENUE [RULE 4, SEC. 4]
already filed in court.
 If a specific rule/law provides otherwise Always filed before May be filed even after
(e.g. action for damages arising from judgment judgment
libel);
 If the parties have validly agreed in B. Pleadings Allowed [Rule 6, Sec. 2]
writing, before the filing of the action, 1) Complaint;
on the exclusive venue thereof. 2) Counterclaim;
 In the absence of qualifying 3) Cross-claim;
restrictive words (e.g. 4) 3rd-party Complaint,
“only/solely/exclusively in such 5) Complaint-in-intervention;
court”), venue stipulation is merely 6) Answer;
permissive; 7) Reply;
 that is, the stipulated venue is in 8) Counter-counterclaim;
addition to the venue provided for in 9) Counter-crossclaim.
the rules. [Polytrade Corp. v. Blanco
(1969)]  PARTS OF A PLEADING [RULE 7]
 CAPTION – Court’s name, action’s title
(i.e. parties’ names) and docket number.
 BODY – Pleading’s designation,
allegations of party's claims/defenses,
relief prayed for and pleading’s date.
 Paragraphs must be numbered, and
each paragraph number must
contain a single set of
circumstances

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REVIEWER IN REMEDIAL LAW
 Headings: if more than one cause of
action, use "1st cause of action,"
2nd cause of action," etc.
 Specify relief sought, but it may add
a general prayer for such
further/other relief as may be
deemed just/equitable.
 Every pleading shall be dated.
 Pleading must be signed by the
party/counsel. State address (not PO
box) in either case.
 Counsel’s signature is a certification
that:
a) He has read the pleading;
b) To the best of his knowledge,
information and belief there is
good ground to support it;
c) It is not interposed for delay.
 An unsigned pleading produces no
legal effect.
 However, the court may allow such
deficiency to be remedied if it shall
appear that the same was due to
inadvertence and not intended for
delay.
 DISCIPLINARY ACTION ON COUNSEL
REGARDING PLEADINGS
 Deliberately filing an unsigned
pleading;
 Deliberately signing a pleading in
violation of the Rules;
 Alleging scandalous/Indecent
matter in the pleading;
 Failing to promptly report a change
of his address.
 VERIFICATION [RULE 7, SEC. 4]
 Pleadings need not be verified, unless
otherwise provided by the law/rules.
 HOW A PLEADING IS VERIFIED
 By an affidavit that:
 That the affiant read the pleading;
 That the allegations therein are true
and correct of his personal
knowledge or based on authentic
documents.
 CERTIFICATION OF NON-FORUM
SHOPPING (CNFS) [RULE 7, SEC. 5]
 Definition: The filing of multiple suits
in different courts, simultaneously or
successively, involving the same parties,
to ask the courts to rule on the
same/related causes and/or to grant
the same or substantially the same
relief. [T'Boli Agro-Industrial
Part 2: Ordinary Civil Action
Development, Inc. (TADI) v. Solidapsi
(2002)] (Asked in the 2006 Bar Exam).
CIVIL PROCEDURE
 TEST TO DETERMINE WON THERE IS
FORUM SHOPPING (ASKED IN THE
2002 BAR EXAM)
 WON in the 2 or more cases pending,
there is identity of:
1) Parties;
2) Rights or causes of action;
3) Relief sought.
 CNFS is to be executed by the
petitioner, not by the counsel.
 CNFS is required only for complaints or
initiatory pleadings (e.g. permissive
counterclaim, cross-claim etc.).
 CNFS is not required in a
compulsory counterclaim. A
counterclaim is not an initiatory
pleading. [UST Hospital v. Surla]
 Failure to comply is not curable by mere
amendment of the pleading but shall be
cause for the dismissal of the case,
without prejudice and upon motion and
after hearing, unless otherwise
provided.
4)
 EFFECT OF SUBMISSION OF FALSE
CNFS OR NON-SUBMISSION OF CNFS
 Indirect contempt;
 Administrative and criminal actions.
 EFFECT OF WILFUL AND
DELIBERATE FORUM SHOPPING
(Asked in the 2006 and 2007 Bar Exams)
 Ground for summary dismissal of the
case with prejudice;
 Direct contempt and administrative
sanctions.
 Pleadings as well as remedial laws
should be liberally construed
 in order that the litigant may have
ample opportunity to prove their
respective claims, and possible
denial of substantial justice, due to
technicalities, may be avoided.
[Gerales v. CA (1993)]
 DIFFERENT PLEADINGS
COMPLAINT [Rule 6, Sec. 3]
 Definition: The pleading alleging the
plaintiff’s cause/s of action. It should
contain a concise statement of the
ultimate facts constituting the plaintiff’s
cause/s of action, not evidentiary facts
or legal conclusions.
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REVIEWER IN REMEDIAL LAW
 It shall contain:
 in a methodical and logical form
 a plain, concise and direct
statement of ultimate facts on which
the plaintiff relies for his claim,
 omitting statement of mere
evidentiary facts.
 Its function is to inform the defendant
clearly and definitely of claims made
against him so that he may be prepared
to meet the issues at trial.
 It should inform the defendant of all
material facts on which the plaintiff
relies to support his demand.
 It should state the theory of a cause of
action which forms the bases of
plaintiff’s claim of liability. [Tantuico v.
Republic (1991)]
 ULTIMATE FACTS – Essential facts
constituting the plaintiff’s cause of
action. A fact is essential if it cannot be
stricken out without leaving the
statement of the cause of action
insufficient. [Remitere v. Montinola
(1966)]
 Not ultimate facts:
 Evidentiary or immaterial facts;
 Legal conclusions, conclusions or
inferences of facts from facts not
stated, or incorrect inferences or
conclusions from facts stated;
 Conclusions of law alleged in the
complaint are not binding on the
court.
 The details of probative matter or
particulars of evidence, statements
of law, inferences and arguments.
 TEST OF SUFFICIENCY OF THE FACTS
ALLEGED IN THE COMPLAINT
 WON upon the averment of facts, a
valid judgment may be properly
rendered [Pamintan v. Costales
(1914)].
ANSWER [RULE 6, SEC. 4]
 Definition: The pleading where the
defendant sets forth his
affirmative/negative defenses. It may
also be the response to a counterclaim
or a cross-claim.
1. TWO KINDS OF DEFENSES THAT MAY
BE SET FORTH IN THE ANSWER:
[RULE 6, SEC 5]
a. AFFIRMATIVE DEFENSES – PREGNANT WITH AN ADMISSION
Allegations of new matters which,
while hypothetically admitting the
material allegations in the
claimant’s pleading, would
Part 2: Ordinary Civil Action
nevertheless prevent/bar recovery
by him. It includes fraud,
prescription, release, payment and
CIVIL PROCEDURE
any other matter by way of
confession and avoidance.
b. NEGATIVE DEFENSES – Specific
denials of the material facts alleged
in the pleading of the claimant
essential to his cause of action.
2. KINDS OF DENIAL (ASKED IN THE
2004 BAR EXAM):
a. SPECIFIC DENIAL – Specifies each
material allegation of fact the truth
of which he does not admit, and sets
forth the substance of the matters
upon which he relies to support his
denial.[Rule 8, Sec10]
b. DENIAL WITH QUALIFICATION -
Specifies so much of it as is true
and material, and deny the
remainder.
c. SPECIFIC DENIAL FOR LACK OF
KNOWLEDGE/INFORMATION
sufficient to form as belief as to the
truth of a material averment made
in the complaint.
d. SPECIFIC DENIAL UNDER OATH -
Contests the authenticity or due
execution of an actionable
document. [Rule 8, Sec 8]
3. ACTIONABLE DOCUMENT –
 A document which is really the basis of
the cause of action (or defense), and not
merely evidentiary thereof. [Rule 8, Sec
7]
 Genuineness and due execution of an
actionable instrument shall be deemed
admitted unless the adverse party,
under oath, specifically denies them,
and sets forth what he claims to be the
facts. [Rule 8, Sec. 8]
 Exception: the adverse party does not
appear to be a party to the instrument.
[Donato v. CA (1993)]
 How an action or defense may be based
on a document:
a. By copying a substantial portion of
the document into the pleading;
b. By annexing /incorporating the
document into the pleading;
c. By both copying and annexing
document into the pleading.
4. NEGATIVE PREGNANT – DENIAL
 It is a denial pregnant with the
admission of the substantial facts in the
pleading responded to which are not
squarely denied.
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REVIEWER IN REMEDIAL LAW
 It is in effect an admission of the
averment it is directed to. [Philamgen v.
Sweet Lines (1993)]
5. INSUFFICIENT DENIALS OR DENIALS
AMOUNTING TO ADMISSIONS
 General denial;
 Negative pregnant.
6. WAIVER OF DEFENSES
 Defenses and objections not pleaded
either in a MTD or in the answer, are
deemed waived. [Rule 9, Sec. 1]
 Exception:
 LOJ over the subject matter;
 Litis pendentia;
 Res judicata;
 Prescription
COUNTERCLAIM [RULE 6, SEC. 6]
 Definition: Any claim which
defending party may have against an
opposing party.
 A counterclaim is in the nature of a
cross-complaint. Although it may be
alleged in the answer, it is not part
of the answer.
 Upon its filing, the same
proceedings are had as in the
original complaint.
 For this reason, it must be answered
10 days from service (Asked in the
2002 and 2008 Bar Exams).
 How to raise counterclaims
 Included in the answer: [Rule 11,
Sec. 8]
 A compulsory counterclaim or a
cross-claim that a defending party
has at the time he files his answer
shall be contained therein.
 Exception: Pleadings may
amended under Rule 11, Sec. 10:
a) By leave of court;
b) Before judgment;
c) On the grounds of:
(1) Oversight;
(2) Inadvertence;
(3) Excusable neglect;
(4) When justice requires.
 After the answer: [Rule 11, Sec. 9]
 Counterclaims/cross-claims arising
after the answer,
 with the court’s permission,
 may be presented as
counterclaim/cross-claim
supplemental pleading before
judgment.
Part 2: Ordinary Civil Action
1. RULES ON COUNTERCLAIMS
 In an original action before the RTC, the
counterclaim may be considered
CIVIL PROCEDURE
compulsory regardless of the amount.
[Rule 6, Sec. 7]
 In the case of Agustin v. Bacalan, if a
counterclaim is filed in the MTC in
excess of its jurisdictional amount, the
excess is considered waived.
 But in Calo v. Ajax, the remedy where a
counterclaim is beyond the jurisdiction
of the MTC is to set off the claims and
file a separate action to collect the
balance.
2. KINDS OF COUNTERCLAIMS
Compulsory Permissive
counterclaim counterclaim
One which arises out It does not arise out of
of or is necessarily nor is it necessarily
a connected with the connected with the
transaction or subject matter of the
occurrence -that is opposing party's
the subject matter of claim.
the opposing party's
claim.
Does not require for May require for its
its adjudication the adjudication the
presence of third presence of third
parties of whom the parties over whom the
court cannot acquire court cannot acquire
jurisdiction. jurisdiction.
Barred if not set up in Not barred even if not
the action. set up in the action.
Need not be answered; Must be answered,
no default. otherwise, the
defendant can be
declared in default.
 A permissive counterclaim requires the
payment of docket fees. [Sun Insurance
v. Asuncion]
 A plaintiff who fails or chooses not to
be answer a compulsory counterclaim may
not be declared in default, principally
because the issues raised in the
counterclaim are deemed automatically
joined by the allegations in the
complaint. [Gojo v. Goyala]
3. REQUISITES OF A COMPULSORY
COUNTERCLAIM [RULE 6, SEC 7]
(ASKED IN THE 1998 BAR EXAM)
a. It must arise out of, or be
necessarily connected with, the
transaction/occurrence that is the
a subject matter of the opposing
by party's claim;
b. It does not require for its
adjudication the presence of 3rd
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
parties of whom the court cannot  General Rule - A compulsory
acquire jurisdiction; counterclaim not set up is considered
c. It must be within the court’s barred. [Rule 9, Sec. 2]

CIVIL PROCEDURE
jurisdiction both as to the amount  Exception – If due to oversight,
and the nature. inadvertence, excusable neglect, etc. the
compulsory counterclaim, with leave of
 General rule: A compulsory court, may be set up by amendment
counterclaim not set up in the answer is before judgment. [Rule 11, Sec. 10]
deemed barred.
 Exception: If it is a counterclaim which CROSS-CLAIM [Rule 6, Sec. 8]
either matured or was acquired by a
party after serving his answer. In this 1. REQUISITES FOR A CROSS-CLAIM
case, it may be pleaded by filing a a. A claim by one party against a co-
supplemental answer or pleading before party;
judgment. [Rule 11, Sec. 9] b. It must arise out of the subject
 The filing of a MTD and the setting up of matter of the complaint or of the
a compulsory counterclaim are counterclaim;
incompatible remedies. c. The cross-claimant is prejudiced by
 In the event that a defending party has the claim against him by the
a ground for dismissal and a opposing party.
compulsory counterclaim at the same  A cross-claim is always compulsory. A
time, he must choose only one remedy. cross-claim not set up shall be barred.
 If he decides to file a MTD, he will lose [Rule 9, Sec. 2]
his counterclaim. But if he opts to set  Exception:
up his counterclaim, he may still plead a. When it is outside the court’s
his ground for dismissal as an jurisdiction;
affirmative defense in his answer. b. If the court cannot acquire
 If any of the grounds to dismiss under jurisdiction over 3rd parties whose
Rule 17, Sec. 3 arises, the proper presence is necessary for the
recourse for a defendant who desires to adjudication of said cross-claim. In
pursue his compulsory counterclaim in this case, the cross-claim is
the same proceeding is not a MTD. considered permissive.
 Instead, he should only move to have  The dismissal of the complaint carries
the plaintiff declared non-suited on the with it the dismissal of a cross-claim
complaint so that the latter can no which is purely defensive, but not a
longer present his evidence thereon, cross-claim seeking an affirmative
and simultaneously move that he be relief.[Torres v. CA (1973)
declared as in default on the
compulsory counterclaim, and reserve Comparative Table:
Cross Claim, Counterclaim and Third Party
the right to present evidence ex parte on
Complaint
his compulsory counterclaim. [BA (Asked in the 1997 and 1999 Bar Exams)cl
Finance v. Co (1993)] Cross-claim Counterclaim 3rd Party
 Under Section 3, Rule 17, dismissal of complaint
action due to plaintiff’s fault shall be Against a co- Against an Against a
without prejudice to the defendant’s party opposing party person not
right to prosecute his counterclaim in a party to
the same/separate action. the action
Must arise out May arise out of Must be in
4. TEST TO DETERMINE WHETHER A of the or be necessarily respect of
transaction connected with the
COUNTERCLAIM IS COMPULSORY OR
that is the the transaction opponent’s
PERMISSIVE subject matter or the subject (plaintiff’s)
 LOGICAL RELATIONSHIP TEST – of the original matter of the claim
 Where conducting separate trials of action or of a opposing party’s
the respective claims would entail counterclaim claim
substantial duplication of effort and therein (compulsory
time and involves many of the same counterclaim), or
factual and legal issues. [Meliton v. it may not
(permissive
CA]
counterclaim)
5. EFFECT OF FAILURE TO SET UP

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action

COUNTER-COUNTERCLAIMS AND 3rd-party complaint Counterclaim

COUNTER-CROSS-CLAIMS[Rule 6, Sec. 9] Need not be within the Must be within the
jurisdiction of the jurisdiction of the
court trying the main court trying the main

CIVIL PROCEDURE
1. COUNTER-COUNTERCLAIM –
 A claim asserted against an original case case
Diminishes/defeats the Need not
counter-claimant.
recovery sought by the diminish/defeat the
opposing party recovery sought by
2. COUNTER-CROSS-CLAIM – the opposing party
 A claim filed against an original cross- Cannot exceed the May exceed in
claimant. amount stated in the amount or be
original complaint different in kind from
REPLY [Rule 6, Sec. 10] that sought in the
original complaint
 Definition: The plaintiff’s response to
the defendant's answer,
2. TESTS TO DETERMINE WHETHER THE
 the function of which is to deny or
3RD-PARTY COMPLAINT IS IN
allege facts in denial or in avoidance
RESPECT OF PLAINTIFF'S CLAIM
of new matters alleged by way of
[CAPAYAS V. CFI (1946)]
defense in the answer and
 WON it arises out of the same
 thereby join or make issue as to
transaction on which the plaintiff's
such new matters.
claim is based, or although arising out
of another/different transaction, is
1. EFFECT OF FAILURE TO REPLY
connected with the plaintiff’s claim;
(ASKED IN THE 2000 BAR EXAM)
 WON the 3rd-party defendant would be
 General rule: Filing a reply is merely
liable to the plaintiff or to the defendant
optional. New facts that were alleged in
for all/part of the plaintiff’s claim
the answer are deemed controverted
against the original defendant;
should a party fail to reply thereto.
 WON the 3rd-party defendant may
 Exception: Reply is required:
assert any defenses which the 3rd-party
 Where the answer is based on an
plaintiff has or may have to the
actionable document. [Rule 8, Sec. 8]
plaintiff’s claim.
 Where the answer alleges the
defense of usury. [Rule 8, Sec. 11]  Leave of court to file a 3rd-party
complaint may be obtained by motion
3RD – PARTY COMPLAINT under Rule 15.
[Rule 6, Sec. 11]  Summons on 3rd (4th/etc.) – party
defendant must be served for the court
 Definition: It is a claim that a to obtain jurisdiction over his person,
defending party may, with leave of since he is not an original party.
court, file against a person not a party  Where the trial court has jurisdiction
to the action for contribution, over the main case, it also has
indemnity, subroqation or any other jurisdiction over the 3rd-party
relief, in respect of his opponent's claim. complaint, regardless of the amount
 There could also be a 4th/etc.-party involved as a 3rd-party complaint is
complaint with the same purpose and merely auxiliary to and is a
function. continuation of the main action.
[Republic v. Central Surety]
3rd-party complaint Complaint in  A 3rd-party complaint is not proper in
intervention an action for declaratory relief.
Brings into the action Same
a 3rd person who was
not originally a party
Initiative is with the Initiative is with a
person already a party non-party who seeks
to the action to join the action

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action

III.MANNER OF MAKING 3. DISAVOWAL OF KNOWLEDGE –

ALLEGATIONS  By an allegation of lack of knowledge or
information sufficient to form a belief as

CIVIL PROCEDURE
A. IN GENERAL to the truth of the averment in the
B. FACTS THAT MAY BE AVERRED opposing party's pleading.
GENERALLY  This does not apply where the fact as to
C. FACTS THAT MUST BE AVERRED which want of knowledge is asserted is,
PARTICULARLY to the knowledge of the court, so plain
D. THREE WAYS OF MAKING A SPECIFIC and necessarily within the defendant's
DENIAL
knowledge that his averment of
ignorance must be palpably untrue.
A. In General [Rule 8, Sec. 1]
 In a methodical and logical form.  General rule: Allegations not
 Plain, concise and direct statement of specifically denied are deemed admitted
the ultimate facts on which the party [Rule 8, Sec. 11]
pleading relies for his claim/defense.  Exceptions:
 Omit evidentiary facts.  Allegations as to the amount of
 If defense relied on based on law, cite unliquidated damages;
the provisions and their applicability.  Allegations immaterial to the cause
of action;
B. Facts That May Be Averred  Allegations of merely evidentiary or
Generally immaterial facts may be expunged
 Conditions precedent; but there must from the pleading or may be
still be an allegation that the specific stricken out on motion. [Rule 8, Sec.
condition precedent has been complied 12]
with, otherwise it will be dismissed for  Conclusion of law.
lack of cause of action;
 Capacity to sue or be sued;
 Capacity to sue or be sued in a
representative capacity; IV. ACQUISITION OF JURISDICTION
 Legal existence of an organization ;
 A party desiring to raise an issue as A. FILING AND SERVICE
to the legal existence or capacity of B. PAPERS REQUIRED TO BE FILED AND
SERVED
any party to sue or be sued in a
C. PROOF OF FILING
representative capacity shall do so D. MODE OF SERVICE
by specific denial which shall include
supporting particulars within the
A. Filing and Service
pleader's knowledge.
 Malice/intent/knowledge or other
1. DEFINITION
condition of the mind;
 FILING – The act of presenting the
 Judgments of domestic/foreign
pleading or other paper to the clerk of
courts, tribunals, boards or officers
court. [Rule 13, Sec. 2]
(without need to show jurisdiction);
 SERVICE – The act of providing a party
 Official documents/acts.
or his counsel with a copy of the
pleading or paper concerned. [Rule 13,
C. Facts That Must Be Averred Sec. 2]
Particularly
 Circumstances showing fraud/mistake B. Papers Required to Be Filed and
in all averments of fraud/mistake.
Served [Rule 13, Sec. 4]
a. Pleading subsequent to the
D. Three Ways of Making a Specific complaint;
Denial b. Appearance;
1. SPECIFIC ABSOLUTE DENIAL – c. Written Motion;
 By specifically denying the averment d. Notice;
and, whenever practicable, setting forth e. Order;
the substance of the matters relied f. Judgment;
upon for such denial. g. Demand;
h. Offer of Judgment;
2. PARTIAL SPECIFIC DENIAL – i. Resolution;
 Part admission and part denial; j. Similar papers.

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action

C. Filing E. Service
1. MANNER OF FILING [RULE 13, SEC. 3]
(Asked in the 2005 Bar particularly 1. MODES OF SERVICE [RULE 13, SEC. 5]

comparison with filing in criminal actions)
 Personally.
 By personally presenting the original
to the clerk of court.
 The pleading is deemed filed upon
the receipt of the same by the clerk
of court who shall endorse on it the
date and hour of filing.
 If a party avails of a private carrier,
the date of the court’s actual receipt
of the pleading (not the date of
delivery to the private carrier) is
deemed to be the date of the filing of
that pleading. [Benguet Electric
Cooperative v. NLRC]
 By registered mail.
 Filing by mail should be through the
registry service (i.e. by depositing
the pleading in the post office).
 The pleading is deemed filed on the
date it was deposited with the post
office.
 If registry service is not available in
the locality of either sender or
addressee, service may be done by
ordinary mail.
CIVIL PROCEDURE
 Personal service. [Rule 13, Sec. 6]
a) Delivering personally a copy to the
party or his counsel.
b) Leaving a copy in counsel's office
with his clerk or with a person
having charge thereof.
c) If no person is found in his office, or
if his office is unknown, or if he has
no office – Leaving the copy between
8am and 6 pm at the party's or
counsel's residence (if known) with a
person of sufficient age and
discretion then residing therein.
2. SERVICE BY (REGISTERED) MAIL.
[RULE 13, SEC. 7]
 By depositing the copy in the office, in a
sealed envelope, plainly addressed to
the party or his counsel at his office or
at his residence (if known), with postage
fully pre-paid, and with instructions to
the postmaster to return the mail to the
sender after l0 days if undelivered.
 If no registry service is available in the
locality of either sender or addressee,
service may be done by ordinary mail.

D. Proof of Filing [Rule 13, Sec. 12] 3. SUBSTITUTED SERVICE. [RULE 13,
 Filing is proved by its existence in the SEC. 8]
record of the case.  By delivering the copy to the clerk of
 If it is not in the record: court, with proof of failure of both
personal service and service by mail.
When Proof of filing
pleading Completeness Proof of service
is deemed of service
filed Personal Upon actual Written
Personally Upon Written/stamped service delivery admission of the
receipt of acknowledgment by party served
the the clerk of court Xxx xxx Official return of
pleading the server; or
by the affidavit of the
clerk of party serving,
court with a full
By On the Registry receipt, and statement of the
registered date the affidavit of the date/place/mann
mail pleading person who did the er of service
was mailing with: Service by 10 days after Affidavit of the
deposited 1) Full statement of ordinary mailing, person mailing,
with the the date/place of mail unless showing facts
post office depositing the mail otherwise that comply with
in the post office in provided by Rule 13, Sec. 7
a sealed envelope the court
addressed to the Service by Whichever is Affidavit of the
court registered earlier: person mailing,
2) Postage fully paid mail showing facts
3) Instructions to that comply with
the postmaster to Rule 13, Sec. 7
return the mail to Xxx 1) Actual Registry receipt
the sender after 10 receipt by the issued by the
days if undelivered addressee post office

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
Xxx 2) 5 days after Xxx  The notice is for the purpose of
addressee molesting the adverse party; or
received 1st
 It is not necessary to protect the
postmaster's

CIVIL PROCEDURE
notice
rights of the party who caused it to
be recorded.
4. SERVICE OF JUDGMENT, FINAL
ORDERS OR RESOLUTIONS [RULE 13,
SEC. 9] V. AMENDMENT AND
 By personal service; SUPPLEMENTAL PLEADINGS
 By registered mail;
 By publication if party is summoned by A. AMENDMENT
B. SUPPLEMENTAL PLEADINGS
publication and has failed to appear in
C. BILL OF PARTICULARS
the action. D. INTERVENTION
E. SUMMONS
5. PRIORITY IN MODES OF FILING AND F. MOTIONS
SERVICE [RULE 13, SEC. 11]
 General rule: Personal filing and A. Amendment
service. Resort to other modes of filing
and service must be accompanied by an 1. HOW TO AMEND PLEADINGS [RULE
explanation why the service/filing was 10, SEC. 1]
not done personally. a. Adding an allegation of a party;
 If there is no written explanation, b. Adding the name of a party;
the paper considered not filed. c. Striking out an allegation of a party;
 Exception: Papers emanating from the d. Striking out the name of a party;
court e. Correcting a mistake in the name of
6. NOTICE OF LIS PENDENS [RULE 13, a party; and
SEC. 14] f. Correcting a mistake or inadequate
 LIS PENDENS - Notice of a pendency of allegation or description in any
the action between the parties involving other respect.
title to or right of possession over real  Purpose: That the actual merits of the
property. controversy may speedily be
 Requisites: [AFP Mutual Benefit determined, without regard to
Association v. CA] technicalities, and in the most
1) Action affects the title or the right of expeditious and inexpensive manner.
possession of the real property;  As a general policy, liberality in allowing
2) Affirmative relief is claimed; amendments is greatest in the early
3) Notice shall contain the name of the stages of a law suit, decreases as it
parties and the object of the progresses and changes at times to a
action/defense and a description of strictness amounting to a prohibition.
the property affected thereby;  This is further restricted by the
4) Action in rem. condition that the amendment should
 The notice serves as a warning to all not prejudice the adverse party or place
persons, prospective purchasers or him at a disadvantage. [Barfel
encumbrancers of the property in Development v. CA (1993)]
litigation to keep their hands off the
property in litigation unless they are 2. FORM [RULE 10, SEC. 7]
prepared to gamble on the result of the  A new copy of the entire pleading,
proceedings. incorporating the amendments, which
 The defendant may also record a notice shall be indicated by appropriate
of lis pendens when he claims an marks, shall be filed.
affirmative relief in his answer.
 The notice of cannot be cancelled on an 3. EFFECT [RULE 10, SEC. 8]
ex parte motion or upon the mere filing  The amendment supersedes the
of a bond by the party on whose title the amended pleading.
notice is annotated, as Sec. 14 provides  Claims and defenses in superseded
that such cancellation may be pleading which are not incorporated in
authorized only upon order of court, the amended pleading are deemed
after proper showing that: [Roxas v. CA waived.
(1993)]

Page 27 of 370
REVIEWER IN REMEDIAL LAW
 Admissions made in the superseded
pleading may still be received in
evidence against the pleader.
4. KINDS OF AMENDMENTS
 FORMAL AMENDMENTS –
 A defect in the designation of the
parties and other clearly clerical
errors may be summarily corrected
by the court or by motion:
o At any stage of the action.
o Provided that no prejudice is
caused to the adverse party.
 SUBSTANTIAL AMENDMENTS (Asked
in the 2003 Bar Exam)
 If as a matter of right – Made at any
time before a responsive pleading is
served. If it is a reply, at any time
within l0 days after it is served.
[Rule 10, Sec. 2]
 If as a matter of discretion –
Amendment requires leave of court
if:
o It is substantial; and
o A responsive pleading has
already been served. [Rule 10,
Sec. 3]
5. REQUISITES FOR AMENDMENTS BY
LEAVE OF COURT
 Motion filed in court;
 Notice to the adverse party;
 Opportunity to be heard afforded to
the adverse party.
(NOTE: In the 2008 Bar Exam, a question
was asked on amendment of complaint to
implead additional parties)
6. WHEN AMENDMENT BY LEAVE OF
COURT MAY NOT BE ALLOWED
 If the cause of action, defense or theory
of the case is changed.
 If amendment is intended to confer
jurisdiction to the court.
 If the court has no jurisdiction in
the subject matter of the case, the
amendment of the complaint cannot
be allowed so as to confer
jurisdiction on the court over the
property. [PNB v. Florendo (1992)]
 If amendment is for curing a premature
or non-existing cause of action.
 If amendment is for purposes of delay.
 Admitting an amended complaint in
intervention is a matter addressed to
the court’s discretion, subject only to
the limitations that amendments should
not substantially change the cause of
Part 2: Ordinary Civil Action
action or alter the theory of the case or
made to delay the action.
 Once exercised, it cannot be disturbed
CIVIL PROCEDURE
on appeal, except in case of abuse
thereof. [Metropolitan Bank v. Presiding
Judge (1990)]
7. AMENDMENT TO CONFORM TO
EVIDENCE [RULE 10, SEC. 5] (ASKED
IN THE 2004 BAR EXAM)
 If issues not raised by the pleadings are
tried with the express/implied consent
of the parties, they shall be treated as if
they had been raised in the pleadings.
 Amendment of pleadings as may be
necessary to cause them to conform to
the evidence and to raise these issues,
may be made upon motion of any party,
any time (even after judgment).
 But failure to amend does not affect
the result of the trial on these
issues.
 If 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 to be
amended and shall do so with liberality
if the presentation of the merits of the
action and the ends of substantial
justice will be subserved thereby.
B. Supplemental Pleadings
(Asked in the 2000 Bar Exam)
 Definition: One which sets forth
transactions, occurrences or events
which have happened since the date of
the pleading sought to be
supplemented. [Rule 10, Sec. 6]
 It is made upon motion of a party with
reasonable notice and upon terms as
are just.
 The cause of action stated in the
supplemental complaint must be the
same as that stated in the original
complaint.
 Otherwise, the court should not admit
the supplemental complaint. [Asset
Privatization Trust v. CA]
1. AMENDMENTS VIS-À-VIS
SUPPLEMENTAL PLEADINGS
 A supplemental complaint/pleading
supplies deficiencies in aid of an
original pleading, not to entirely
substitute the latter.
 Unlike in an amended complaint, the
original complaint exists side by side
with the supplemental complaint.
[Shoemart v. CA (1990)]
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
Amendments Supplemental the movant to properly prepare his
pleadings responsive pleading and to prepare
Reason for the Grounds for the for trial. [Tantuico, Jr. v. Republic
amendment is supplemental

CIVIL PROCEDURE
(1991)]
available at time of pleading arose after
 A BOP becomes part of the pleading for
the 1st pleading the 1st pleading was
filed
which it was intended. [Rule 12, Sec. 6]
Either as a matter of Always a matter of
right or a matter of discretion 1. WHEN APPLIED FOR [RULE 12, SEC. 1]
discretion  Before responding to a pleading
Supersedes the Supplements the  If the pleading is a reply, within 10 days
pleading pleading (i.e. Exists from service thereof
side by side with the
original pleading) 2. WHAT A MOTION FOR BOP SHOULD
When an amended A supplemental POINT OUT [RULE 12, SEC. 1]
pleading is filed, a pleading does not  The defects complained of;
new copy of the entire require the filing of a
pleading must be filed new copy of the entire
 The paragraph wherein they are
pleading contained;
 The details desired.
C. Bill Of Particulars
3. COURT ACTION [RULE 12, SEC. 2]
(Asked in the 2003 Bar Exam)
 Deny;
 Grant the motion outright;
 Definition: It is a detailed explanation
 Allow the parties the opportunity to be
respecting any matter which is not
heard.
averred with sufficient
definiteness/particularity in the
4. COMPLIANCE WITH ORDER [RULE 12,
complaint as to enable a party to
SEC. 3]
properly prepare his responsive
 If motion for BOP is granted
pleading or to prepare for trial. [Rule 12,
wholly/partially:
Sec. 1]
 Within 10 days from notice of order,
 It is filed by the plaintiff pursuant to a
BOP or a more definite statement
court order issued upon granting a
should be submitted (unless court fixes
motion for BOP filed by the defendant
a different period).
before the latter files an answer.
 BP or definite statement filed either as a
 In said motion, the defendant prays for
separate pleading or as an amended
a more definite statement of matters
pleading, a copy of which must be
which are not averred with sufficient
served on the adverse party.
definiteness in the complaint.
 An action cannot be dismissed on the
5. EFFECT OF NON-COMPLIANCE [RULE
ground that the complaint is
12, SEC. 4]
vague/indefinite.
 In case of non-compliance or
 The remedy of the defendant is to move
insufficient with the order for BOP, the
for a BOP or avail of the proper mode of
court:
discovery. [Galeon v. Galeon]
a) May order the striking out of the
 Purpose: To inform the adverse party
pleading (or portion thereof) to
more specifically of the precise nature
which the order is directed;
and character of the cause of action or
b) Make such order as it may deem
defense alleged in the pleading, with the
just.
view of enabling him to prepare properly
 If the plaintiff fails to obey, his
his responsive pleading or to prepare for
complaint may be dismissed with
trial.
prejudice unless otherwise ordered by
 The purpose of a BOP is to define/
the court. [Rule 12, Sec. 4; Rule 17, Sec.
clarify/particularize/limit/circumsc
3]
ribe the issues in the case to
 If defendant fails to obey, his answer
expedite the trial and assist the
will be stricken off and his counterclaim
court.
dismissed, and he will be declared in
 The only question to be resolved in a
default upon motion of the plaintiff.
motion for a BOP is WON the
[Rule 9, Sec. 3; Rule 12, Sec. 4; Rule 17,
allegations in the complaint averred
Sec. 4]
with sufficient
definiteness/particularity to enable

Page 29 of 370
REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
6. STAY OF PERIOD TO FILE resisting the claims of plaintiff, or
RESPONSIVE PLEADING [RULE 12, demanding something adversely to both
SEC. 5] of them. [Metropolitan Bank v. Presiding

CIVIL PROCEDURE
 A Motion for BOP interrupts the period Judge (1990)]
to file an answer.  It is the act/proceeding by which a 3rd
1) If the motion is granted: 15 days to person becomes a party in a suit
file answer. pending between others.
2) If the motion is denied: File answer  It is the admission, by leave of court, of
within the period the movant is a person not an original party to
entitled to, which should not be less pending legal proceedings, by which
than 5 days. such person becomes a party thereto for
the protection of some right of interest
Bill of Particulars Intervention alleged by him to be affected by such
(BOP) proceedings.
Purpose is to enable a Purpose is to enable a  An intervenor is a party to the action as
party bound to person not yet a party the original parties are, and to make his
respond to a pleading to an action, yet
right effectual he must necessarily have
to get more details having a certain right
about matters which or interest in such
the same powers as the original parties.
are alleged generally action, the He is entitled to have the issues raised
or which are indefinite opportunity to appear between him and the original parties
and vague, and be joined tried and determined.
 Intervention is never an
so as to properly guide so he could assert or independent action, but is ancillary
such party in protect such right or and supplemental to the existing
answering the interest litigation.
pleading and to avoid
surprise in the trial of
 Its purpose is to afford one not an
the case original party, yet having a certain
Available to the Available to any right/interest in the pending case,
defendant before he person not yet a party the opportunity to appear and be
files his responsive to the action at any joined so he could assert or protect
pleading time after the such right/interest. [Cariño vs.
commencement of an Ofilada (1993)]
action, even during  Intervention is never an independent
the proceeding, but action, but is ancillary and
not after the trial has
supplemental to the existing litigation.
been concluded
Its purpose is to afford one not an
original party, yet having a certain
D. Intervention
right/interest in the pending case, the
opportunity to appear and be joined so
1. DEFINITION(ASKED IN THE 2003 BAR
he could assert or protect such
EXAM):
right/interest. [Cariño vs. Ofilada
 A legal remedy whereby a person is (1993)]
permitted to become a party in a case, by
 Hence, the final dismissal of the
either:
principal action results into the
1) Joining the plaintiff;
dismissal of said ancillary action.
2) Joining the defendant;
3) Asserting his right against both
2. WHO MAY INTERVENE [RULE 19, SEC.
plaintiff and defendant, considering
1]
that either:
 One who has a legal interest in the
a) He has a legal interest in the
matter in litigation;
subject matter of the action;
 One who has a legal interest in the
b) He is going to be adversely
success of either of the parties;
affected by the disposition of the
 One who has an interest against both
property in the custody of the
parties;
court
 One who is so situated as to be
 Intervention is a proceeding in a
adversely affected by a
suit/action by which a 3rd person is
distribution/disposition of property in
permitted by the court to make himself
the court’s custody.
a party, either joining plaintiff in
claiming what is sought by the
complaint, or uniting with defendant in

Page 30 of 370
REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
3. HOW INTERVENTION IS DONE 6. REMEDIES
 By a motion to intervene, with the  For denial of intervention:
pleading-in- intervention attached. a) Appeal.

CIVIL PROCEDURE
Must also serve copy of the pleading-in- b) Mandamus, if there is GAD.
intervention on the original parties.  For improper granting of intervention:
[Rule 19, Sec. 2] Certiorari.
 General rule: Allowance of intervention
is discretionary with the court. Intervention Interpleader
 Exception: When the intervenor is an An ancillary action An original action
indispensable party. Proper in any of the Presupposes that the
 Factors considered in allowing four situations plaintiff has no interest
intervention: mentioned in Rule 19 in the subject matter of
the action or has an
1) WON intervention will unduly delay
interest therein, which
or prejudice the adjudication of the in whole or in part is
rights of the original parties. not disputed by the
2) WON the intervenor's rights may be other parties to the
fully protected in a separate action
proceeding. There is already a Defendants are being
 The interest must be actual and defendant among the sued precisely to
material, direct and immediate; not original parties to the implead them
simply contingent or expectant. pending suit
 It must be in the matter in litigation
and of such direct and immediate E. Summons
character that the intervenor will
either gain or lose by the direct legal  Definition: A coercive force issued by
operation and effect of the the court to acquire jurisdiction over the
judgment. [Cariño vs. Ofilada (1993)] person of the defendant (asked in the
 Interest in the subject means a 1999 Bar Exam)
direct interest in the cause of action  Purpose:
as pleaded and which would put the  To acquire jurisdiction over the
intervenor in a legal position to person of the defendant in a civil
litigate a fact alleged in the case;
complaint, without the  To give notice to the defendant that
establishment of which plaintiff an action has been commenced
could not recover. [Magsaysay- against him.
Labrador v. CA]
 Intervention is allowed any time before 1. ISSUANCE OF SUMMONS
TC renders judgment. [Rule 19, Sec. 2]  Upon the filing of the complaint and the
 After rendition of judgment, a motion to payment of legal fees, the clerk of court
intervene is barred, even if the shall issue the corresponding summons
judgment itself recognizes the movant’s to the defendants. [Rule 14, Sec. 1]
right. The movant’s remedy is to file a
separate action. 2. SUMMON’S CONTENTS [RULE 14, SEC.
2]
4. PLEADINGS IN INTERVENTION [RULE  Summons must be directed to the
19, SEC. 3] defendant, signed by the clerk of the
1) COMPLAINT-IN-INTERVENTION – If court under seal, and contain:
intervenor asserts a claim against either 1) Name of the court and names of the
or all of the original parties. parties;
2) ANSWER-IN-INTERVENTION – If 2) Direction that the defendant answer
intervenor unites with the defending within the time fixed;
party in resisting a claim against the 3) Notice that unless the defendant so
latter. answers, plaintiff will take judgment
by default and may be granted the
5. ANSWER TO COMPLAINT-IN- relief applied for.
INTERVENTION [RULE 19, SEC. 4]  A copy of the complaint and order for
 It must be filed within 15 days from appointment of guardian ad litem (if
notice of the order admitting the any) shall be attached to the original
complaint-in-intervention, unless a and each copy of the summons.
different period is fixed by the court.

Page 31 of 370
REVIEWER IN REMEDIAL LAW
3. SERVICE OF SUMMONS
a. Who serves the summons [rule 14, sec.
3]
1) The sheriff or his deputy;
2) Other proper court officers;
3) For justifiable reasons, any suitable
person authorized by the court issuing
the summons.
b. Return of summons [rule 14, sec. 4]
 When the service has been completed,
the server shall, within 5 days
therefrom,
 serve a copy of the return (personally or
by registered mail) to the plaintiff's
counsel, and
 shall return the summons to the clerk
who issued it, accompanied by proof of
service.
c. Alias summons [rule 14, sec. 5]
 Upon plaintiff’s demand, the clerk may
issue an alias summons if either:
1) If summons is returned without
being served on any/all of the
defendants.
 The server shall also serve a copy of
the return on the plaintiff's counsel
within 5 days therefrom, stating the
reasons for the failure of service.
2) If summons was lost.
d. Modes of service of summons
 Any application to the court under Rule
14 for leave to effect service in any
manner for which leave of court is
necessary
 shall be made by motion in writing,
supported by affidavit of the plaintiff or
some person on his behalf, setting forth
the grounds for the application. [Rule
14, Sec. 17]
 Service in person on defendant [Rule
14, Sec. 6]
1) By handing a copy of summons to him;
2) By tendering it to him, if he refuses to
receive it.
 Substituted service [Rule 14, Sec. 7]
(asked in the 2004 Bar Exam)
 Rationale: Enjoyment of the
privileges of residence within the
state, and the attendant right to
invoke the protection of its laws, are
inseparable from the various
incidences of state citizenship.
Part 2: Ordinary Civil Action
 One such incident of domicile is
amenability to suit within the state
even during sojourns without the
CIVIL PROCEDURE
state, where the state has provided
and employed a reasonable method
for apprising such an absent party
of the proceedings against him.
[Northwest v. CA (1995)]
 For a valid substituted service of
summons, the following must be
established in the proof of service:
[Sps. Ventura v. CA (1987)]
1) Impossibility of the personal service
of summons within a reasonable
time;
2) Efforts made to find the defendant
personally and the fact that such
efforts failed; [Laus v. CA (1993)]
3) Service by leaving copy of summons
either:
a) With some person of suitable age
and discretion then residing in
the defendant’s residence;
b) With some competent person in
charge of the defendant’s office
or regular place of business.
 For a substituted service to be valid,
summons served at the defendant's
residence must be served at his
residence at the time of such service
and not at his former place of residence.
 "Dwelling house" or "residence" refer to
the place where the person named in
the summons is living at the time when
the service is made, even though he
may be temporarily out of the country
at the time. [Sps. Ventura v. CA (1987)]
 Substituted service must be used only
as prescribed and in the circumstances
authorized by statute.
 Statutes prescribing modes other than
personal service of summons must be
strictly complied with to give the court
jurisdiction, and such compliance must
appear affirmatively in the return. [Laus
v. CA (1993)]
 Absence in the sheriff's return of a
statement about the impossibility of
personal service does not conclusively
prove that the service is invalid.
 Proof of prior attempts at personal
service may be submitted by the
plaintiff during the hearing of any
incident assailing the validity of the
substituted service.
 While the sheriff's return carries with it
the disputable presumption of
regularity in the sense that the entries
therein are deemed correct, it does not
necessarily follow that an act done in
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REVIEWER IN REMEDIAL LAW
relation to the official duty for which the
return is made was not done simply
because it is not disclosed therein.
[Mapa v. CA (1992)]
e. Publication [Rule 14, Sec. 14]
 Requisites:
1) The action is in rem or quasi in rem;
2) Defendant's identity or whereabouts
are unknown and cannot be
ascertained by diligent inquiry;
3) There must be leave of court.
 Summons by publication in a personal
action cannot confer upon the court
jurisdiction over the person of the
defendant, who does not voluntarily
submit himself to the authority of the
court.
 The proper recourse for the plaintiff is
to locate properties of the defendant
whose address is unknown and cause
them to be attached. [Consolidated
Plywood vs. Breve (1988)]
f. Service of summons upon different
entities (SEE APPENDIX 1 FOR TABLE)
 Summons is validly served if it is left
with some person of suitable age and
discretion then residing in the
defendant's residence, even if defendant
was abroad at that time.
 The fact that the defendant did not
actually receive the summons did not
invalidate the service of such summons.
[Montalban v. Maximo]
g. Waiver of service of summons [rule 14,
sec. 20]
 Defendant's voluntary appearance in
the action shall be equivalent to service
of summons;
 Exception: Special appearance to file a
MTD.
 Inclusion in the MTD of grounds
other than LOJ over the defendant’s
person, is not deemed a voluntary
appearance.
 Any mode of appearance in court by
a defendant or his lawyer is
equivalent to service of summons,
absent any indication that the
appearance of counsel for petitioner
is precisely to protest the
jurisdiction of the court over the
person of the defendant. [Delos
Santos v. Montesa (1993)]
4. RETURN OF SERVICE [RULE 14, SEC.
4]
 When service has been completed, the
server shall serve a copy of the return
Part 2: Ordinary Civil Action
within 5 days (personally or by
registered mail) to the plaintiff's
counsel, and shall return the summons
CIVIL PROCEDURE
to the clerk who issued it, accompanied
with the proof of service.
 General rule: Return of service of
summons immediately shifts burden of
evidence from plaintiff to defendant
since there is a presumption of
regularity.
 Without return of service: Burden is
on plaintiff.
 In the Mapa case, though, while
there was a return, return was
patently irregular, thus no
presumption of regularity could be
had.
 Exception: Doctrine of substantial
compliance – If defendant actually
received summons and complaint
despite all these technicalities.
5. PROOF OF SERVICE
1) If personal or substituted service: In
writing by the server and shall: [Rule 14,
Sec. 18]
 Set forth the manner/place/date of
service;
 Specify any papers which have been
served with the process and the
name of the person who received the
same;
 Be sworn to when made by a person
other than a sheriff or his deputy.
2) If by publication: [Rule 14, Sec. 19]
 Affidavit of the printer, foreman,
principal clerk, editor,
business/advertising manager, with
a copy of the publication attached.
 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 to his
last known address.
6. EFFECT OF NON-SERVICE OF
SUMMONS (ASKED IN THE 2006 BAR
EXAM)
 Unless the defendant voluntarily
submits to the jurisdiction of the court,
 non-service or irregular service of
summons renders null and void all
subsequent proceedings and
issuances in the action from the
order of default up to and including
the judgment by default and the
order of execution.
Page 33 of 370
REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
 If the defendant has already been  Exception: Oral motions:
served with summons on the original  Made in open court;
complaint, no further summons is  In the course of a hearing/trial.

CIVIL PROCEDURE
required on the amended complaint if it
does not introduce new causes of 3. CONTENTS [RULE 15, SEC. 3]
action. [Ong Peng v. Custodio]  Relief sought to be obtained
 But if the defendant was declared in  Grounds upon which it is based
default on the original complaint and  If it is required/necessary to prove facts
the plaintiff subsequently filed an alleged in a motion, it shall be
amended complaint, new summons accompanied by supporting affidavits
must be served on the defendant on the and other papers.
amended complaint, as the original  Motions raising factual issues must
complaint was deemed withdrawn upon be supported by affidavits.
such amendment. [Atkins v. Domingo]
4. REQUISITES OF MOTIONS (NOT MADE
F. Motions IN OPEN COURT OR IN THE COURSE
OF HEARING/TRIAL):
 Definition: An application for relief  In writing; [Rule 15, Sec. 2]
other than by a pleading. [Rule 15, Sec.  Hearing on the motion set by the
1] applicant;
 PRO FORMA MOTION – A motion
Motion Pleading failing to indicate time and date of
Contains allegations of Contains allegations of the hearing.
facts the ultimate facts  Notice of hearing shall addressed to all
Prays for a relief Prays for a relief parties not later than 10 days from the
Grant of the relief does Grant of relief
filing of the motion. [Rule 15, Sec. 5]
not extinguish the extinguishes the action
action (interlocutory (final relief)  Notice must be addressed to the
relief) counsels.
Generally in writing Always in writing  A notice of hearing addressed to the
(with some exceptions) clerk of court, and not to the
parties, is no notice at all.
 General rule: A motion cannot pray for  Accordingly, a motion that does not
judgment. contain a notice of hearing to the
 Exception: adverse party is nothing but a mere
 Motion for judgment on the scrap of paper, as if it were not filed;
pleadings. hence, it did not suspend the
 Motion for summary judgment. running of the period to appeal.
 Motion for judgment on demurrer to [Provident International Resources v.
evidence. CA (1996)]
 Motion and notice of hearing must be
1. KINDS OF MOTION served at least 3 days before the date of
 MOTION EX PARTE - Made without hearing; [Rule 15, Sec. 4]
notification to the other party because  Purpose: To prevent surprise upon
the question generally presented is not the adverse party and to enable the
debatable. latter to study and meet the
 LITIGATED MOTION - Made with arguments of the motion.
notice to the adverse party so that an  Exception:
opposition thereto may be made. a) Ex parte motions;
 MOTION OF COURSE - Motion for a b) Urgent motions;
kind of relief/remedy to which the c) Motions agreed upon by the
movant is entitled to as a matter of parties to be heard on shorter
right, Allegations contained in such notice, or jointly submitted by
motion do not have to be the parties;
investigated/verified. d) Motions for summary judgment
 SPECIAL MOTION - Discretion of the which must be served at least 10
court is involved. An investigation of the days before its hearing.
facts alleged is required.  Proof of service. [Rule 15, Sec. 6]
 A written motion set for hearing will
2. MOTION’S FORM [RULE 15, SEC. 2] not be acted upon by the court if
 General rule: In writing. there is no proof of service thereof.

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REVIEWER IN REMEDIAL LAW
 What may be proof:
a) If by registered mail: Affidavit or
registry receipt or postmark on
envelope or return card, with an
explanation.
b) If by personal service: Affidavit
or acknowledgment of receipt by
the other party.
 Exception:
a) If the motion is one which the
court can hear ex parte.
b) If the court is satisfied that the
rights of the adverse parties are
not affected by the motion.
c) If the party is in default because
such a party is not entitled to
notice.
5. MOTION DAY [RULE 15, SEC. 7]
 Except for urgent motions, motions are
scheduled for hearing:
1) On Friday afternoons;
2) Afternoon of the next working day, if
Friday is a non-working day.
6. OMNIBUS MOTION RULE [RULE 15,
SEC. 8]
 Definition: A motion attacking a
pleading/order/judgment/proceeding
must include all objections then
available. All objections not included in
the motion are deemed waived.
 Exception: When the court’s
jurisdiction is in issue:
1) LOJ over subject-matter;
2) Litis pendentia;
3) Res judicata;
4) Prescription.
7. MOTION FOR LEAVE TO FILE A
PLEADING/MOTION [RULE 15, SEC. 9]
 Must be accompanied by the
pleading/motion sought to be admitted.
8. MOTIONS NOT ACTED UPON
 Parties and counsel should not assume
that courts are bound to grant the time
they pray for.
 After all, a motion that is not acted
upon in due time is deemed denied.
[Orosa v. CA (1996)]
Part 2: Ordinary Civil Action
VI. TERMINATING THE ACTION
BEFORE TRIAL
CIVIL PROCEDURE
A. MOTION TO DISMISS
B. DISMISSAL OF ACTIONS
C. DISMISSAL OF COUNTERCLAIMS/ CROSS-
CLAIMS/3RD-PARTY COMPLAINTS
D. DEFAULTS
E. REMEDIES OF A PARTY DECLARED IN
DEFAULT
F. JUDGMENT ON THE PLEADINGS
G. SUMMARY JUDGMENTS
H. PARTIAL SUMMARY JUDGMENT
A. Motion To Dismiss (MTD)
1. DEFINITION
 MOTION TO DISMISS – A remedy of
the defendant, or the responding party
in general, which attacks the entire
pleading and seeks its dismissal based
on:
1) Grounds which are patent on the
face of the complaint;
2) Defenses available to the defendant
at the time of the filing of the
complaint.
 It hypothetically admits the facts stated
in the complaint.
 It is not a responsive pleading. It is not
a pleading at all. It is subject to the
omnibus motion rule since it is a
motion that attacks a pleading. Hence,
it must raise all objections available at
the time of the filing thereof.
 General rule: A court may not motu
propio dismiss a case, unless a motion
to that effect is filed by a party.
 Exception:
 Cases where the court may dismiss
a case motu propio; [Rule 9, Sec. 1]
 Failure to prosecute; [Rule 17, Sec.
3]
 Sec. 4, Revised Rule on Summary
Procedure.
2. TYPES OF DISMISSAL OF ACTION:
 MTD before answer under Rule 16;
 MTD under Rule 17:
a) Upon notice by plaintiff;
b) Upon motion by plaintiff;
c) Due to fault of plaintiff.
 Demurrer to evidence after plaintiff has
completed the presentation of his
evidence under Rule 33;
 Dismissal of an appeal.
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
MTD under Rule 16 MTD under Rule 33  Before any voluntary appearance is
(Demurrer to made.
evidence)  If a defendant had not been properly
Based on preliminary Based on insufficiency

CIVIL PROCEDURE
summoned, the period to file a MTD
objections of evidence
for LOJ over his person does not
May be filed by any May be filed only by
defending party against the defendant against
commence to run until he
whom a claim is the complaint of the voluntarily submits to the
asserted in the action plaintiff jurisdiction of the court. [Laus v. CA
Should be filed within May be filed only after (1993)]
the time for, but prior the plaintiff has  Appearance of counsel is equivalent
to, the filing of the completed the to summons, unless such is made to
defending party’s presentation of his protest the jurisdiction of the court
answer to the pleading evidence over the person of the defendant. If
asserting the claim
grounds other than invalid service of
against him
summons are raised, it cannot be
If denied, defendant If denied, defendant
answers; else, he may may present evidence. considered as a special appearance.
be declared in default. If granted, plaintiff [De los Santos v. Montesa (1993)]
If granted, plaintiff may appeals and the order
appeal or if a of the dismissal is b. LOJ over the subject matter of the claim
subsequent reversed; the  If the complaint shows on its face LOJ,
case is not barred, he defendant loses his the court may dismiss the case outright
may re-file the case right to present instead of hearing the motion.
evidence.  A MTD on the ground of LOJover the
subject matter may be raised either:
 A MTD shall be proved/disproved 1) Before answer;
according to the rules of evidence. 2) After answer is filed;
 The hearing shall be conducted as an 3) After hearing had commenced;
ordinary hearing and the parties shall 4) At any stage of the proceeding, even
be allowed to present evidence, except for the first time on appeal and even
when the motion is based upon failure if no such defense is raised in the
of the complaint to state a cause of answer.
action.
 When the MTD is based on facts not c. Improper venue
appearing of record, the court may hear  Unless and until the defendant objects
the matter on affidavits/depositions. to the venue in a MTD prior to a
responsive pleading, the venue cannot
3. GROUNDS [RULE 16, SEC. 1] (ASKED truly be said to have been improperly
IN THE 2008 BAR EXAM) laid since,
 for all practical intents and purposes,
a. LOJ over the defendant’s person; the venue though technically wrong
b. LOJ over the subject matter of the may yet be considered acceptable to the
claim; parties for whose convenience the rules
c. Improper venue; on venue had been devised. Improper
d. Plaintiff’s lack of legal capacity to venue may be waived and such waiver
sue; may occur by laches. [Diaz v. Adiong
e. Litis pendentia; (1993)]
f. Res judicata;  A stipulation between the parties as to
g. Prescription; venue does not preclude the filing of
h. Failure to state a cause of action; suits in the residence of
i. Extinguished claim; plaintiff/defendant under Rule 4, Sec.
j. Unenforceable claim under the 2(b). In the absence of
Statute of Frauds; qualifying/restrictive words which
k. Non-compliance with a condition would indicate that a specific place
precedent for filing claim. alone is the venue, an agreement as to
venue is merely permissive and there is
a. LOJ over the defendant’s person no waiver of right to pursue remedy in
 The objection of LOJ over the person on other courts. [HSBC v. Sherman (1989)]
account of lack of service or defective  If the court erroneously denies the
service of summons, must be raised: MTD, the remedy is prohibition.
 At the very first opportunity;

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REVIEWER IN REMEDIAL LAW
d. Plaintiff’s lack of legal capacity to sue
 The plaintiff lacks legal capacity to sue:
1) When he does not possess the
necessary qualification to appear at
the trial (e.g. when he plaintiff is not
in the full exercise of his civil
rights);
2) When he does not have the
character which he claims, which is
a matter of evidence (e.g. when he is
not really a duly appointed
administrator of an estate).
 Lack of legal capacity to sue refers to
plaintiff’s disability; while lack of legal
personality to sue refers to the fact that
the plaintiff is not a real party in
interest,
 in which case the ground for dismissal
would be that the complaint states no
cause of action.
e. Litis pendentia
 Requisites: [Anderson Group v. CA
(1997) Asked in the 2007 Bar Exam]
1) Identity of parties;
2) identity of rights asserted and relief
prayed for;
3) Relief founded on the same facts
and the same basis;
4) Identity in the 2 proceedings should
be such that any judgment which
may be rendered in the other action
will amount to res judicata on the
action under consideration.
 It is not required to allege that there be
a prior pending case. It is sufficient to
allege and prove the pendency of
another case, even if same had been
brought later.
 It does not require that the later case be
dismissed in favor of the earlier case. To
determine which case should be abated,
apply:
1) The More Appropriate Action Test;
2) The Interest of Justice Test, taking
into account:
a) Nature of the controversy;
b) Comparative accessibility of the
court to the parties;
c) Other similar factors.
 In both tests, the parties’ good faith
shall be taken into consideration.
 The 1st case shall be abated if it is
merely an anticipatory action or defense
against an expected suit.
 The 2nd case will not be abated if it is
not brought to harass. [Vitrionics
Computers v. RTC (1993)]
Part 2: Ordinary Civil Action
f. Res judicata
 Requisites (Asked in the 2000 Bar
Exam):
CIVIL PROCEDURE
1) Former judgment rendered by a
court having jurisdiction over the
subject matter and over the parties;
2) Judgment must be a final judgment;
3) Judgment must be on the merits;
 There can be res judicata without a
trial, such as in a judgment on the
pleadings (Rule 34); a summary
judgment (Rule 35); or an order of
dismissal under Rule 17, Sec. 3.
4) There must be identity of parties, of
subject matter and of the causes of
action.
 For res judicata to apply, absolute
identity of parties is not required
because substantial identity is
sufficient. Inclusion of additional
parties will not affect the application
of the principle of res judicata.
 The test of identity of cause of action
lies not in the form of the action but
on WON the same evidence would
support and establish the former
and the present causes of action.
[DBP v. Pundogar (1993)]
 Rationale: The sum and substance of
the whole doctrine is that a matter once
judicially decided is finally decided
because of: [Nabus v. CA (1991)]
 Public policy and necessity makes it
the interest of the State that there
should be an end to litigation;
 The hardship on the individual that
he should be vexed twice for the
same cause.
4. TWO CONCEPTS OF RES JUDICATA
[ABALOS V. CA 1993, ASKED IN THE
1997 BAR EXAM)]
 BAR BY PRIOR JUDGMENT –
Judgment on the merits in the 1st case
constitutes an absolute bar to the
subsequent action
 not only as to every matter which
was offered and received to sustain
or defeat the claim/demand,
 but also to any other admissible
matter which might have been
offered for that purpose and to all
matters that could have been
adjudged in that case. (Asked in the
2002 Bar Exam)
 CONCLUSIVENESS OF JUDGMENT –
 Where the 2nd action between the
parties is upon a different
claim/demand,
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
 the judgment in the 1st case i. Extinguished claim
operates as an estoppel only with  That the claim/demand set forth in the
regard to those issues directly plaintiff's pleading has been paid,

CIVIL PROCEDURE
controverted, upon the waived, abandoned or otherwise
determination of which the extinguished.
judgment was rendered.
j. Unenforceable claim under the statute of
g. Statute of limitations frauds
 Prescription applies only when the
complaint on its face shows that indeed k. Non-compliance with a condition
the action has already prescribed. precedent
 If the fact of prescription is not  Non-compliance with PD 1508
indicated on the face of the complaint (Katarungang Pambarangay Law) may
and the same may be brought out later, result in dismissal of the case on the
the court must defer decision on the ground of non-compliance with a
motion until such time as proof may be condition precedent.
presented on such fact of prescription.
5. PLEADING THE GROUNDS AS
Prescription Laches AFFIRMATIVE DEFENSES [RULE 16,
Concerned with the Concerned with the SEC. 6]
fact of delay effect of delay  If no MTD was filed, the grounds in Rule
A matter of time A matter of equity 16, Sec. 1 may be pleaded as an
Statutory Not statutory affirmative defense and the court may
Applies in law Applies in equity conduct a preliminary hearing thereon
Based on fixed time Not based on fixed as if a MTD was filed.
time
6. HEARING AND ORDER
h. Complaint states no cause of action
 During the hearing of the motion,
 Failure to state a cause of action (not
parties shall submit: [Rule 16, Sec. 2]
lack of cause of action) is the ground for
1) Their arguments on questions of
a MTD. The former means there is
law;
insufficiency in the allegations in the
2) Their evidence on questions of fact.
pleading. The latter means that there is
 Exception: Those not available
insufficiency in the factual basis of the
at that time.
action.
 If the case goes to trial, such
 The failure to state a cause of action
evidence presented shall
must be evident on the face of the
automatically be part of the
complaint itself.
evidence of the party who
 Test: Assuming the allegations and
presented them.
statements to be true, does the plaintiff
 After the hearing, the court may either:
have a valid cause of action?
[Rule 16, Sec. 3]
 A MTD based upon the ground of failure
1) Dismiss the action/claim;
to state a cause of action imports a
2) Deny the MTD;
hypothetical admission by the
3) Order the amendment of pleadings.
defendant of the facts alleged in the
 The court’s resolution on the MTD must
complaint.
clearly and distinctly state the reasons
 If the court finds the allegations of the
therefor.
complaint to be sufficient but doubts
 The court cannot defer the resolution of
their veracity, it must deny the MTD
the MTD for the reason that the ground
and require the defendant to answer
relied upon is not indubitable.
and then proceed to try the case on its
merits.
7. EFFECTS
 A complaint containing a premature
cause of action may be dismissed for a. Of dismissal: [Rule 16, Sec.5]
failure to state a cause of action.  General rule: The action/claim may be
 If the suit is not brought against the re-filed.
real party-in-interest, a motion to  Exception: The action cannot be re-
dismiss may be filed on the ground that filed (although subject to appeal) if it
the complaint states no cause of action. was dismissed on any of the following
[Tanpinco v. IAC (1992)] grounds:

Page 38 of 370
REVIEWER IN REMEDIAL LAW
 Res judicata;
 Prescription;
 Extinguishment of the
claim/demand;
 Unenforceability under the Statute
of Frauds.
b. On periods for pleading: [Rule 16, Sec.4]
 If MTD is denied – Movant must file his
answer within the balance of the period
under Rule 11 to which he was entitled
at the time of serving his MTD (but not
less than 5 days).
 If pleading is ordered to be amended –
Movant must file his answer within the
period under Rule 11, counted from
service of the amended pleading (unless
the court gives a longer period).
c. On other grounds and omnibus motion
rule:
 MTD based on the following grounds
may be filed even after filing an answer:
[Rule 9, Sec. 1]
 LOJ over subject-matter;
 Litis pendentia;
 Res judicata;
 Prescription.
 Dismissal of the complaint under Rule
16, Sec. 6 is without prejudice to the
prosecution (in the same or in a
separate action) of a counterclaim
pleaded in the answer.
B. Dismissal of Actions
1. DISMISSAL UPON PLAINTIFF’S NOTICE
[RULE 17, SEC. 1]
 Dismissal here is effected not by motion
but by mere notice before the service of
either:
1) The answer;
2) A motion for summary judgment.
 Upon plaintiff’s filing of notice, the court
shall issue an order dismissing the
case. (i.e. the court has no discretion on
WON to dismiss the case).
 The dismissal is without prejudice.
 Exception:
1) If the notice of dismissal
provides that it is with
prejudice.
 The dismissal is still with prejudice
even it the notice of dismissal does
not so provide, where such notice is
premised on the fact of payment by
the defendant of the claim involved.
[Serrano v. Cabrera]
2) TWO-DISMISSAL RULE –
Part 2: Ordinary Civil Action
 If the plaintiff has previously
dismissed an action based on or
including the same claim, the notice
CIVIL PROCEDURE
operates as an adjudication on the
merits.
2. DISMISSAL UPON PLAINTIFF’S
MOTION [RULE 17, SEC. 2]
 Here, dismissal of the complaint is
subject to the court’s discretion and
upon such terms and conditions as may
be just.
 Leave of court for the dismissal is
necessary because the motion is made
after a responsive pleading or a motion
for summary judgment has been served.
 If defendant pleaded a counterclaim
prior to the service upon him of the
plaintiff’s motion for dismissal, the
dismissal shall be without prejudice to
the defendant’s right to either:
1) Prosecute his counterclaim in a
separate action;
2) Have the counterclaim resolved in
the same action, by manifesting
such preference within 15 days from
being notified of plaintiff’s motion
for dismissal.
 Dismissal here is without prejudice,
unless otherwise provided in the order.
 Court approval of the court is necessary
in the dismissal/compromise of a class
suit.
3. DISMISSAL DUE TO PLAINTIFF’S
FAULT [RULE 17, SEC. 3]
 If, without justifiable cause, plaintiff
fails either:
1) To appear on the date of the
presentation of his evidence-in-chief
on the complaint;
 The plaintiff’s failure to appear
at the trial after he has
presented his evidence and
rested his case does not warrant
the dismissal of the case on the
ground of failure to prosecute.
 It is merely a waiver of his right
to cross-examine and to object
to the admissibility of evidence.
[Jalover v. Ytoriaga]
2) To prosecute his action for an
unreasonable length of time (nolle
prosequi);
 The test for dismissal of a case
due to failure to prosecute is
WON, under the circumstances,
the plaintiff is chargeable with
want of due diligence in failing to
proceed with reasonable
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
promptitude. [Calalang v. CA D. Defaults
(1993)] [Rule 9, Sec. 3]
3) To comply with the ROC or any

CIVIL PROCEDURE
court order.  Definition: Failure of the defendant to
 Here, the case may be dismissed motu answer within the proper period. It is
propio or upon the defendant’s motion. not his failure to appear nor his failure
 The dismissal has the effect of an to present evidence (Asked in the 2000
adjudication on the merits, unless the and 2001 Bar Exams)
court declares otherwise.
Order of default Judgment by default
Rule 17, Sec. 2 Rule 17, Sec. 3 Issued by the court on Rendered by the court
Dismissal is at the Dismissal is not plaintiff’s motion, for following a default
plaintiff’s instance procured by plaintiff, failure of the order
although justified by defendant to file his or after it received ex
causes imputable to responsive pleading parte plaintiff’s
him seasonably evidence
Dismissal is a matter Dismissal is a matter Interlocutory – Not Final – Appealable
of procedure, without of evidence, an appealable
prejudice unless adjudication on the
otherwise stated in the merits 1. ELEMENTS OF A VALID DECLARATION
court order or on OF DEFAULT
plaintiff’s motion for
a. Court validly acquired jurisdiction
dismissal of his own
complaint.
over the defendant’s person, either
Dismissal is without Dismissal is without by service of summons or voluntary
prejudice to the prejudice to the appearance;
defendant’s right to defendant’s right to b. Defendant fails to answer within the
prosecute his prosecute his time allowed therefor;
counterclaim in a counterclaim in the c. Motion to declare the defendant in
separate action (unless same or in a separate default;
within 15 days from action d. Notice to the defendant by serving
notice of the motion he upon him a copy of such motion;
manifests his intention
to have his
e. Proof of such failure to answer.
counterclaim resolved
in the same action) 2. CASES WHERE NO DEFAULTS ARE
ALLOWED
C. Dismissal of Counterclaims/ Cross-  Annulment of marriage; Declaration of
Claims/3rd-Party Complaints nullity of marriage; Legal Separation;
[Rule 17, Sec. 4]  Here, the court shall order the
prosecuting attorney to investigate
 Rule 17 applies to the dismissal of WON parties are colluding and, if
counterclaims, cross-claims or 3rd- there is no collusion, to intervene
party complaints. from the State to ensure that
 Where a counterclaim is made the evidence is not fabricated.
subject of a separate suit, it may be  Special civil actions of certiorari,
abated upon a plea of auter action prohibition and mandamus, where
pendentia and/or dismissal on the comment (instead of an answer) is
ground of res judicata. required to be filed.
 Res judicata, however, is not applicable
since the court held that it did not 3. EFFECT OF ORDER OF DEFAULT
acquire jurisdiction due to non-payment (ASKED IN THE 1999 BAR EXAM)
of docket fees.  Party in default loses standing in court
 Dismissal on the ground of LOJ does as a party litigant. His failure to answer
not constitute res judicata, there being operates as a waiver of right to take part
no consideration and adjudication of in the trial, of being heard, and of
the case on the merits. Neither is there presenting evidence in his favor.
litis pendentia. [Meliton v. CA (1992)]  If the defendant was declared in
default upon an original complaint,
the filing of the amended complaint
resulted in the withdrawal of the
original complaint.

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
 Hence, the defendant was entitled to  Rationale: It is presumed that where
file answer to the amended the relief demanded is greater or
complaint as to which he was not in different in kind, defendant would not

CIVIL PROCEDURE
default. have allowed himself to be declared in
 The court shall proceed to render default.
judgment granting the claimant relief as  In a judgment based on evidence
his pleading may warrant, unless the presented ex parte, judgment should
court in its discretion requires the not exceed the amount or be different in
claimant to submit evidence. Such kind from that prayed for.
reception of evidence may be delegated  On the other hand, in a judgment where
to the clerk of court. an answer was filed but defendant did
 The party in default shall be entitled to not appear at the hearing, the award
notice of subsequent proceedings but may exceed the amount or be different
not to take part in the trial. in kind from that prayed for. [Datu
 A defendant declared in default Samad Mangelen v. CA (1992)]
cannot take part in the trial, but he
cannot be disqualified from 7. FAILURE TO APPEAR AT PRE-TRIAL
testifying as a witness in favor of
non-defaulting defendants. [Cavili v. Who fails to appear Effect
Florendo] Plaintiff Cause for dismissal of
 A party in default is entitled to the action which will be
notice of: with prejudice, unless
a. Motion to declare him in default; otherwise ordered by
b. Order declaring him in default; the court
c. Subsequent proceedings; Defendant Cause to allow plaintiff
to present evidence ex
d. Service of final orders and
parte, and court to
judgments. render judgment on the
basis thereof
4. RELIEF FROM ORDER OF DEFAULT
 Before judgment, a party declared in Default As in default
default may file a motion under oath to (Rule 9, Sec. 3) (Rule 18, Sec. 5)
set aside the order of default upon Upon motion and notice Not required
proper showing that: to defendant.
1) His failure to answer was due to Requires proof of failure Not required
fraud, accident, mistake or to answer
excusable negligence; Court to render Court to allow plaintiff
2) He has a meritorious defense. judgment, unless it to present evidence ex
requires submission of parte, then the court
 In such case, the order of default may
evidence shall render judgment
be set aside on terms and conditions as Relief awarded must be Relief awarded may be
justice requires. the same in nature and of different nature and
amount as prayed for in amount from the relief
5. EFFECT OF PARTIAL DEFAULT the complaint prayed for
 If the pleading asserting a claim states a
common cause of action against several  A defendant who already filed an
defending parties, answer cannot be declared in default.
 and some of the defending parties Only when the defendant fails to file an
answer while the others fail, answer to the complaint may the court
 the court shall try the case against all proceed to render judgment. [Lesaca v.
defendants upon the answers filed and CA (1992)]
render judgment upon the evidence  The Revised Rules on Summary
presented. Procedure does not provide that an
 Exception: If the defense is personal to answer filed after the reglamentary
the one who answered; in which case, it period should be expunged from the
will not benefit those who did not records.
answer.  As a matter of fact, there is no provision
for an entry of default if a defendant
6. EXTENT OF RELIEF TO BE AWARDED fails to file his answer.
 The award shall not exceed the amount  The defense of LOJ may have even been
or be different in kind from that prayed raised by the defendant in a MTD as an
for; nor award unliquidated damages. exception to the rule on prohibited

Page 41 of 370
REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
pleadings in the Revised Rule on E. Remedies of a Party Declared in
Summary Procedure. Default
 Such a motion is allowed under Sec. (Asked in the 1998 and 2006 Bar

CIVIL PROCEDURE
19(a) thereof. [Bayog v. Natino (1996)] Exams)
 Where the failure to appear at the pre-
trial hearing was uncontrovertedly due  Pleadings, as well as remedial laws,
to illness, the default order may be set should be liberally construed in order
aside on the ground of accident over that litigants may have ample
which petitioner had no control. opportunity to prove their respective
 Also, the order of arrest was illegal as claims, and possible denial of
there is nothing in the ROC which substantial justice. [Gerales v. CA]
authorizes such a consequence of a
default order. [Malanyaon v. Sunga
(1992)]

 [Dulos v. CA (1990)]

1. MOTION TO SET ASIDE  At any time after the discovery of default and before
ORDER OF DEFAULT judgment, defendant may file a motion under oath to set
[RULE 9, SEC. 3(B)] aside order of default on the ground that his failure to file an
answer or appear on the date set for the pre-trial was due to
fraud, accident mistake of law, and excusable negligence
and that he has a meritorious defense
2. MNT [RULE 37, SEC. 1(A)]  If the judgment has already been rendered when the
defendant discovered the default, but before the same
became final and executor.
 It should be filed within the period for perfecting an appeal.
Timely filing thereof interrupts the 15-day reglementary
period for an appeal.
 It is required that defendant file first a motion to lift order of
default to regain his standing. [Tan v. CA (1997)]
3. PETITION FOR RELIEF  If the defendant discovered the default after the judgment
FROM ORDER [RULE 38, has become final and executory
SEC. 1 AND 2]
4. APPEAL FROM THE RTC  The defendant may also appeal from the judgment rendered
[RULE 41, SEC. 1] against him as contrary to the evidence or the law, even if he
did not present a petition to set aside the order of default

 An order of default is an interlocutory  A meritorious defense is only one of the

order which is not appealable. A
judgment by default is a final
disposition of the case and is
appealable. [MERALCO v. La Campana
Food Products (1995)]
 A petition for certiorari under Rule 65,
although not a substitute for an
available or lost appeal, may be invoked
while the orders of the lower court are
issued without or in excess of
jurisdiction.
 Judgment by default being appealable,
appeal should be perfected within 15
days from receipt of copy of order
denying MFR of default judgment.
[Oriental Media v. CA (1995)]
 A satisfactory showing by the movant of
the existence of fraud, accident, mistake
or excusable neglect is an indispensable
requirement for the setting aside of a
judgment of default or the order of
default.
two conditions. The meritorious defense
must concur with the satisfactory
reason for the non-appearance of the
defaulted party. If there is no such
reason, the appropriate remedy is an
ordinary appeal under Rule 41, Sec. 2.
[Ramnani v. CA (1993)]
 The jurisdiction was properly acquired
by the TC over the defendant’s person;
he was therefore properly declared in
default for not having filed any answer.
 Despite his failure to file a motion to set
aside the declaration of default, he has
the right to appeal the default
judgment.
 But in the appeal, only the evidence of
the petitioner may be considered,
respondent not having adduced any
defense evidence. [Boticano v. Chu
(1987)]

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REVIEWER IN REMEDIAL LAW
F. Judgment on the Pleadings
[Rule 34]
(Asked in the 1999 and 2005 Bar Exams)
 Grounds: If the answer either:
1) Fails to tender an issue;
2) Admits the material allegations of
the adverse party’s pleading.
 An answer fails to tender an issue due
to either:
1. General denial of the material
allegations of the complaint;
2. Insufficient denial of the material
allegations of the compliant.
 A judgment on the pleadings can be
done only upon motion to the effect filed
by the appropriate party. It cannot be
rendered by the court motu propio.
 Exception: If at pre-trial the court
finds that a judgment on the
pleadings is proper, it may render
such judgment motu propio. [Rule
18, Sec. 2(g)]
 In the following cases, judgment on the
pleadings will not lie and material facts
alleged in the complaint must always be
proved:
1) Declaration of nullity of marriage;
2) Annulment of marriage;
3) Legal separation.
 By moving for judgment on the
pleadings, the plaintiff waives his claim
for unliquidated damages (because
claims for such damages must be
alleged and proved).
 One who prays for the judgment on the
pleadings without offering proof as to
the truth of his own allegations and
without giving the opposing party an
opportunity to introduce evidence,
 must be understood to admit all
material and relevant allegations of the
opposing party and to rest his motion
for judgment upon those allegations
taken together with such of his own as
are admitted in the pleadings.
[Falcasantos v. How Suy Ching]
G. Summary Judgments
 Definition: A judgment granted by the
court for the prompt disposition of civil
actions, if it clearly appears that there
exists no genuine issue/controversy as
to any material fact, except as to the
amount of damages.
 Also called accelerated judgment.
 GENUINE ISSUE – An issue of fact
which calls for the presentation of
evidence; as distinguished from an
Part 2: Ordinary Civil Action
issue which is sham, fictitious,
contrived and patently insubstantial so
as not to constitute a genuine issue for
CIVIL PROCEDURE
trial.
 When the facts as pleaded appear
uncontested or undisputed, then there
is no real/genuine issue as to the facts.
 The TC cannot motu propio issue a
summary judgment. A party must move
for summary judgment.
Who may file motion When
for summary
judgment
Plaintiff May file the motion only
after the answer has
been served
Defendant May file the motion any
time
 Filing of a motion for summary
judgment does not interrupt the
running of the period for filing an
answer. Hence, the movant must also
file a Motion for Extension of Time to
File Answer.
 Bases of summary judgment: When,
upon the following, no genuine issue as
to any material fact exists:
1) Affidavits made on personal
knowledge;
2) Depositions of the adverse or a 3rd
party; (Rule 23)
3) Admissions of the adverse party;
(Rule 26)
4) Answers to interrogatories. (Rule 25)
H. Partial Summary Judgment
(Asked in the 2004 Bar Exam)
 Applies when for some reason there can
be no full summary judgment. Trial
should deal only with the facts not yet
specified or established. The court shall
direct further proceedings in the action
as are just.
 Effect of partial summary judgment: A
partial summary judgment is not a final
judgment, but merely a pre-trial
adjudication that said issues in the case
shall be deemed established for the trial
of the case. [Guevarra v. CA (1983)]
Page 43 of 370
REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
Summary Judgment on Judgment by VII. MODES OF DISCOVERY
judgment the pleadings default (Asked in the 2000 Bar Exam)
Based on the Based solely Based on the
pleadings, upon the complaint and

CIVIL PROCEDURE
A. DEPOSITIONS UNDER RULE 23
depositions, pleadings evidence, if B. DEPOSITIONS BEFORE ACTION UNDER
admissions court requires RULE 24
and affidavits its C. DEPOSITIONS PENDING APPEAL UNDER
presentation RULE 24
There is no The answer No issues as D. RULE 23 APPLIES ON THE MANNER OR
genuine issue fails to tender no answer is CONDUCT OF THE DEPOSITION
between the an issue or filed by the E. REQUEST FOR ADMISSION UNDER RULE
parties there is an defending 26
admission of party F. PRODUCTION OR INSPECTION OF
the material DOCUMENTS OR THINGS
allegations G. PHYSICAL AND MENTAL EXAMINATION OF
Available to Generally Available to A PARTY UNDER RULE 28
both plaintiff available only the plaintiff H. CONSEQUENCES OF REFUSAL UNDER
and to the alone RULE 29
defendant plaintiff,
unless the
defendant A. Depositions Under Rule 23
presents a
counterclaim 1. GENERAL RULES

10-day notice 3-day notice 3-day notice  PRIMARY FUNCTION OF A

required required rule applies DEPOSITION –
May be On the merits On the merits  Deposition is chiefly a mode of
interlocutory discovery, the primary function of which
or on the
is to supplement the pleadings for the
merits
purpose of disclosing the real points of
Usually Available in Available in
available in any action, any action, dispute between the parties and
actions to except except affording an adequate factual basis
recover a annulment of annulment of during the preparation for trial.
debt, or for a marriage or marriage or  The liberty of a party to avail of such
liquidated legal legal modes of discovery is unrestricted if the
sum of separation separation matters inquired into are relevant and
money, or for cases cases not privileged, and the inquiry is made
declaratory in good faith and within the bounds of
relief
the law.
 Limitations would arise if the
examination is conducted in bad faith;
or in such a manner as to annoy,
embarrass or oppress the person under
examination; or when the inquiry
touches upon the irrelevant or
encroaches upon the recognized
domains of privilege.
 Under certain conditions and for certain
limited purposes, it may be taken even
after trial has commenced and may be
used without the deponent being
actually called to the witness stand.
[Jonathan Landoil v Mangudadatu
(2006)

 General Rule:
 A deposition is not generally
supposed to be a substitute for the
actual testimony in open court of a
party or witness.

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
 If the witness is available to testify,  BEFORE WHOM TAKEN
he should be presented in court to  General Rule: Depositions may be
testify. taken before any judge, notary public,

CIVIL PROCEDURE
 If available to testify, a party’s or or the person referred to in section 14
witness’ deposition is inadmissible (which refers to any person authorized
in evidence for being hearsay. to administer oaths designated by the
[Dasmariñas Garments,Inc. v. Reyes parties by stipulation).
(1993)]  Exceptions: In our jurisdiction,
 Exception: depositions in foreign countries may be
 The exceptions however to the taken:
inadmissibility of such deposition  on notice before a secretary of
are provided for in Rule 23, Section embassy or legation, consul general,
4, as follows: consul, vice consul, or consular
agent of the Republic of the
1) Any deposition may be used by any Philippines;
party for the purpose of contradicting or  before such person or officer as may
impeaching the testimony of deponent be appointed by commission or
as a witness; under letters rogatory; or
2) The deposition of a party or of any one  before any person authorized to
who at the time of taking the deposition administer oaths as stipulated in
was an officer, director, or managing writing by the parties.
agent of a public or private corporation,
partnership, or association which is a COMMISSION LETTERS
party may be used by an adverse party ROGATORY
for any purpose;  Addressed Any authority A judicial
3) The deposition of a witness, whether or to whom in a foreign authority in
country the foreign
not a party, may be used by any party
authorized country
for any purpose if the court finds: therein to take
a) that the witness is dead; or down
b) that the witness resides at a depositions
distance more than one hundred  Rules that Rules laid Rules laid
(100) kilometers from the place of govern the down by the down by
trial or hearing, or is out of the deposition court issuing such foreign
Philippines, unless it appears that the judicial
his absence was procured by the commission authority
party offering the deposition; or  When Preferred over Generally
issued letters resorted to
c) that the witness is unable to attend
rogatory since when there
to testify because of age, sickness, the process is is difficulty
infirmity, or imprisonment; or simpler or
d) that the party offering the deposition (generally, no impossibility
has been unable to procure the need to resort of obtaining
attendance of the witness by to diplomatic the
subpoena; or channels deposition
e) upon application and notice, that unlike in by
such exceptional circumstances letters commission
rogatory) (J. Regalado)
exist as to make it desirable, in the
interest of justice and with due
regard to the importance of  No deposition shall be taken before a
presenting the testimony of person who is:
witnesses orally in open court, to  a relative within the sixth degree of
allow the deposition to be used; and consanguinity or affinity, or
4) If only part of a deposition is offered in  employee or counsel of any of the
evidence by a party, the adverse party parties, or who is a relative within
may require him to introduce all of it the same degree, or employee of
which is relevant to the part introduced, such counsel; or
and any party may introduce any other  who is financially interested in the
parts. action.

Page 45 of 370
REVIEWER IN REMEDIAL LAW
2. OTHER RULES
 RULE 23 Section 5. Effect of
substitution of parties.
 Substitution of parties does not
affect the right to use depositions
previously taken;
 and, when an action has been
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.
 A party shall not be deemed to make a
person his own witness for any purpose
by taking his deposition (Section 7).
 General Rule: Introduction in evidence
of deposition or any part thereof for any
purpose makes the deponent the
witness of the party introducing the
deposition.
 Exception: if the purpose if to
contradict or impeach the deponent.
 ONLY INSTANCE WHEN ONE ALWAYS
NEEDS LEAVE OF COURT BEFORE
TAKING DEPOSITIONS: Where the
deponent is in jail.
 DEPOSITION, WHEN AVAILABLE IN
CRIMINAL CASES: A deposition, in
keeping with its nature as a mode of
discovery, should be taken BEFORE
AND NOT DURING TRIAL.
 In fact, rules on criminal practice -
particularly on the defense of alibi,
which is respondent’s main defense
in the criminal proceedings against
him in the court below - states that
when a person intends to rely on
such a defense, that person must
move for the taking of the deposition
of his witnesses within the time
provided for filing a pre-trial motion.
 The use of discovery procedure in
criminal cases is directed to the
sound discretion of the trial judge.
 The deposition taking cannot be
based nor can it be denied on flimsy
reasons. Discretion has to be
exercised in a reasonable manner
and in consonance with the spirit of
the law. [People v. Hubert Webb
(1999)]
Part 2: Ordinary Civil Action
GROUNDS FOR QUESTIONING THE
DEPOSITION
BEFORE DURING AFTER
DEPOSITION DEPOSITION DEPOSITION
CIVIL PROCEDURE
-Lack of notice -Deposition -Manner of
to parties officer is preparing the
-Deposition disqualified deposition
officer is -Error in the
disqualified manner of
-Lack of taking the
relevance, deposition
materiality -Error in the
and form of the
competence of deposition
the deposition
to the action
 DASMARINAS GARMENTS VS. REYES
(1993): Any deposition offered to prove
the facts therein at the trial of the case,
in lieu of actual testimony of the
deponent in court, may be opposed and
excluded for being hearsay save in
specific instances under the Rules.
[Dasmariñas Garments v. Reyes (1993)]
B. Depositions Before Action Under
Rule 24
 Purpose: To perpetuate the testimony
of witnesses for probable use in the
event of further proceedings in said
court.
 Procedure:
1. FILE A VERIFIED PETITION IN THE
COURT OF THE PLACE OF THE
RESIDENCE OF ANY EXPECTED
ADVERSE PARTY. THE PETITION
SHALL BE ENTITLED IN THE NAME OF
THE PETITIONER AND SHALL SHOW:
a) that the petitioner expects to be a
party to an action in a court of 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 which he desires to
establish by the proposed testimony
and his reasons for desiring to
perpetuate it;
d) the names or a description of the
persons he expects will be adverse
parties and their addresses so far as
known; and
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
ask for an order authorizing the
Page 46 of 370
REVIEWER IN REMEDIAL LAW
petitioner to take the depositions of
the persons to be examined named
in the petition for the purpose of
perpetuating their testimony.
2. NOTICE AND SERVICE TO EACH
PERSON NAMED IN THE PETITION AS
AN EXPECTED ADVERSE PARTY,
TOGETHER WITH A COPY OF THE
PETITION, STATING THAT:
 the petitioner will apply to the court,
at a time and place named therein,
for the order described in the
petition.
 At least twenty (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.
3. ORDER AND EXAMINATION:
 If the court is satisfied that the
perpetuation of the testimony may
prevent a failure or delay of justice,
it shall make an order
4. DESIGNATING OR DESCRIBING THE
PERSONS WHOSE DEPOSITION MAY
BE TAKEN AND SPECIFYING THE
SUBJECT MATTER OF THE
EXAMINATION AND
5.
6. WHETHER THE DEPOSITIONS SHALL
BE TAKEN UPON ORAL EXAMINATION
OR WRITTEN INTERROGATORIES
 Procedure for taking deposition by oral
examination or written interrogatories
will be governed by Rule 23 on
depositions de bene esse.
C. Depositions Pending Appeal Under
Rule 24
 J. Regalado believes that the following
procedure is applicable to civil and
criminal cases.
 Procedure:
1. DURING THE PENDENCY OF AN
APPEAL, THE COURT IN WHICH THE
JUDGMENT WAS RENDERED
 may allow the taking of depositions
of witnesses to perpetuate their
testimony in the event of further
proceedings in the said court.
 In such case the party who desires
to perpetuate the testimony may
make a motion in the said court for
Part 2: Ordinary Civil Action
leave to take the depositions, upon
the same notice and service thereof
as if the action was pending therein.
CIVIL PROCEDURE
 The motion shall state:
 (a) the names and addresses of
the persons to be examined and
the substance of the testimony
which he expects to elicit from
each, and
 (b) the reason for perpetuating
their testimony
2. ORDER ALLOWING THE DEPOSITION:
 If the court finds that the
perpetuation of the testimony is
proper to avoid a failure or delay of
justice, it may make an order
allowing the deposition to be taken.
D. Rule 23 Applies on the Manner or
Conduct of the Deposition.
1. INTERROGATORIES TO PARTIES
UNDER RULE 25
 Procedure:
 By leave of court after jurisdiction has
been obtained over any defendant or
over property which is the subject of the
action, or
 Without such leave after an answer has
been served,
 any party desiring to elicit material
and relevant facts from any adverse
parties shall file and serve upon the
latter written interrogatories to be
answered by the party served or,
 if the party served is a public or
private corporation or a partnership
or association, by any officer thereof
competent to testify in its behalf.
2. ANSWER.
 The interrogatories shall be ANSWERED
FULLY IN WRITING and shall be
SIGNED AND SWORN TO BY THE
PERSON MAKING THEM.
 The party upon whom the
interrogatories have been served shall
file and serve a copy of the answers on
the party submitting the interrogatories
within fifteen (15) days after service
thereof unless the court on motion and
for good cause shown, extends or
shortens the time.
3. ANSWER DEFERRED
 When objections to any interrogatories
is presented to the court within ten (10)
days after service thereof, with notice as
in case of a motion.
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REVIEWER IN REMEDIAL LAW
4. NUMBER OF INTERROGATORIES.
 No party may, without leave of court,
serve more than one set of
interrogatories to be answered by the
same party (Section 4, Rule 23).
5. SCOPE OF INTERROGATORIES:
 Any matter,
 not privileged and which is
 relevant to the subject of the
pending action, whether relating to
the claim or defense of any other
party, including the existence,
description, nature, custody,
condition, and location of any
books, documents, or other tangible
things and the identity and location
of persons having knowledge of
relevant facts
6. USE OF INTERROGATORIES:
 Same as Rule 23 Section 4 mutatis
mutandis.
7. CONSEQUENCE OF FAILURE TO
SERVE WRITTEN INTERROGATORIES.
 A party not served with written
interrogatories may not be compelled by
the adverse party to give testimony in
open court, or
 to give a deposition pending appeal
unless thereafter allowed by the court
for good cause shown and to prevent a
failure of justice. (RULE 25, section 6)
8. CONSEQUENCES OF REFUSAL TO
ANSWER THE SET OF
INTERROGATORIES:
 The party serving the interrogatories
may apply to the court for an order to
compel an answer.
 If it also finds that the refusal to
answer was without substantial
justification, it may require the
refusing party or deponent or the
counsel advising the refusal, or both
of them, TO PAY THE PROPONENT
THE AMOUNT OF THE
REASONABLE EXPENSES
INCURRED IN OBTAINING THE
ORDER, INCLUDING ATTORNEY'S
FEES (Rule 29, section 1).
 CONTEMPT for refusal to comply
with an order of the court to compel
an answer
 Subject of discovery DEEMED
ADMITTED OR ESTABLISHED
(RULE 29 SECTION 3a).
Part 2: Ordinary Civil Action
 Party prohibited from introducing
CONTRADICTORY EVIDENCE
(RULE 29, SECTION 3b)
CIVIL PROCEDURE
 STRIKING OUT PLEADINGS OR
PARTS THEREOF (RULE 29,
SECTION 3c)
 STAYING FURTHER PROCEEDINGS
UNTIL THE ORDER IS OBEYED, or
DISMISSING THE ACTION OR
PROCEEDING OR ANY PART
THEREOF(RULE 29, SECTION 3c),
or
 RENDERING A JUDGMENT BY
DEFAULT AGAINST THE
DISOBEDIENT PARTY; AND (RULE
29, SECTION 3c)
 In lieu of any of the foregoing orders or
in addition thereto, an order directing
the arrest of any party or agent of a
party for disobeying any of such orders
(RULE 29, SECTION 3c)
E. Request For Admission Under
Rule 26
1. AT ANY TIME AFTER ISSUES HAVE
BEEN JOINED, A PARTY MAY FILE
AND SERVE UPON ANY OTHER PARTY
MAY FILE AND SERVE UPON ANY
OTHER PARTY A WRITTEN REQUEST
FOR THE ADMISSION BY THE LATTER
OF
 The genuineness of any material and
relevant document described in and
exhibited with the request or
 the truth of any material and relevant
matter of fact set forth in the request.
2. 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
fifteen (15) days after service thereof, or
within such further time as the court
may allow on motion,
 the party to whom the request is
directed files and serves upon the party
requesting the admission a SWORN
STATEMENT either
 denying specifically the matters of
which an admission is requested or
 setting forth in detail the reasons
why he cannot truthfully either
admit or deny those matters.
3. OBJECTIONS TO ANY REQUEST FOR
ADMISSION SHALL BE:
 Submitted to the court by the party
requested
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REVIEWER IN REMEDIAL LAW
 within the period for and prior to the
filing of his sworn statement as
contemplated in the preceding
paragraph and
 his compliance therewith shall be
deferred until such objections are
resolved, which resolution shall be
made as early as practicable.
4. EFFECT OF ADMISSION.
 Any admission made by a party
pursuant to such request is for the
purpose of the pending action only and
shall not constitute an admission by
him for any other purpose nor may the
same be used against him in any other
proceeding.
5. WITHDRAWAL. THE COURT MAY
ALLOW THE PARTY MAKING AN
ADMISSION UNDER THE RULE,
WHETHER EXPRESS OR IMPLIED, TO
WITHDRAW OR AMEND IT UPON SUCH
TERMS AS MAY BE JUST.
6. EFFECT OF FAILURE TO FILE AND
SERVE REQUEST FOR ADMISSION.
UNLESS OTHERWISE ALLOWED BY
THE COURT FOR:
 good cause shown and
 to prevent a failure of justice, a party
who fails to file and serve a request for
admission on the adverse party of
material and relevant facts at issue
which ARE, OR OUGHT TO BE, WITHIN
THE PERSONAL KNOWLEDGE OF THE
LATTER,
 shall not be permitted to present
evidence on such facts.
 The request for admission MUST BE
SERVED ON THE PARTY and NOT ON
THE COUNSEL.
 This is an exception to the general rule
that notices shall be served upon
counsel and not upon the party. [Duque
v. CA (2002)]
F. Production Or Inspection Of
Documents Or Things (See
Appendix 2)
 This mode of discovery does not mean
that the person who is required to
produce the document or the thing will
be deprived of its possession even
temporarily.
 It is enough that the requesting party be
given the opportunity to inspect or copy
or photograph the document or take a
Part 2: Ordinary Civil Action
look at the thing. (Regalado). (Asked in
the 2002 Bar Exam)
CIVIL PROCEDURE
G. Physical and Mental Examination
of a Party Under Rule 28
 Procedure:
1. MOTION FOR THE ISSUANCE OF AN
ORDER FOR EXAMINATION,
REQUISITES
 the lis mota of the case is the
physical or mental condition of a
party (NOT A WITNESS!!!)
 good cause
 notice to the party to be examined
 must specify physician
 scope of examination
2. COURT IN WHICH THE ACTION IS
PENDING MAY IN ITS DISCRETION
ISSUE THE ORDER FOR
EXAMINATION.
3. REPORT OF FINDINGS.
 If requested by the party examined, the
party causing the examination to be
made shall deliver to him a copy of a
detailed written report of the examining
physician setting out his findings and
conclusions.
 After such request and delivery, the
party causing the examination to be
made shall be entitled upon request to
receive from the party examined a like
report of any examination, previously or
thereafter made, of the same mental or
physical condition.
 If the party examined refuses to deliver
such report, the court on motion and
notice may make an order requiring
delivery on such terms as are just, and
if a physician fails or refuses to make
such a report the court may exclude his
testimony if offered at the trial.
4. WAIVER OF PRIVILEGE.
 By requesting and obtaining a report of
the examination so ordered or by taking
the deposition of the examiner,
 the party examined waives any privilege
he may have in that action or any other
involving the same controversy,
 regarding the testimony of every other
person who has examined or may
thereafter examine him in respect of the
same mental or physical examination.
5. PHYSICIAN-PATIENT PRIVILEGE,
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REVIEWER IN REMEDIAL LAW
 Inapplicable because the results of the
examination are intended to be made
public.
 Such examination is not necessary to
treat or cure the patient but to assess
the extent of injury or to evaluate his
physic al or mental condition.
H. Consequences of Refusal Under
Rule 29 (See Appendix 3)
VIII. PRE-TRIAL
A. NOTICE OF PRE-TRIAL
B. APPEARANCE OF PARTIES
C. PRE-TRIAL BRIEF
D. RECORD OF PRE-TRIAL
E. CALENDAR OF CASES
 Definition:
 A mandatory conference and
personal confrontation before the
judge between the parties litigant
and their representative counsels,
 called by the court after the joinder
of issues in a case or after the last
pleading has been filed and before
trial,
 for the purpose of settling the
litigation expeditiously or
simplifying the issues without
sacrificing the necessary demands of
justice (Asked in the 1999 Bar
Examination, Examiner asked to
compare this with proceedings in the
Katarungang Pambarangay).
 Purpose: To consider: [Rule 18, Sec. 2]
 Possibility of an amicable settlement
or of a submission to alternative
modes of dispute resolution;
 Simplification of the issues;
 Necessity/desirability of
amendments to the pleadings;
 Possibility of obtaining stipulations
or admissions of facts and of
documents to avoid unnecessary
proof;
 Limitation of the number of
witnesses;
 Advisability of a preliminary
reference of issues to
commissioner;
 Propriety of rendering judgment on
the pleadings, or summary
judgment, or of dismissing the
action should a valid ground
therefor be found to exist;
Part 2: Ordinary Civil Action
 Advisability/ecessity of suspending
the proceedings; and
 Other matters that may aid in the
CIVIL PROCEDURE
prompt disposition of the action.
 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 (PTC) all issues of law
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 pre-trial
conference bars the consideration of
other questions on appeal. [Caltex v. CA
(1992)]
 When conducted: After the last pleading
has been served and filed, it shall be the
plaintiff’s duty to move ex parte that the
case be set for pre-trial. [Rule 18, Sec. 1]
 A pre-trial cannot validly be held until
the last pleading has been filed, which
last pleading may be the plaintiff's
reply, except where the period to file the
last pleading has lapsed.
 Discretion to declare a party non-suited
in PTC must not be abused. Unless a
party is so negligent, irresponsible,
contumacious, or dilatory as to provide
substantial grounds for dismissal for
non-appearance, the court should
consider lesser sanctions which would
still amount to achieving the end
desired. [Calalang v. CA (1993)]
A. Notice of Pre-Trial [Rule 18, Sec. 3]
 Notice of pre-trial shall be served on
counsel, or on the party who has no
counsel.
 Counsel served with such notice has a
duty to notify the party he represents.
B. Appearance of Parties [Rule 18,
Sec. 4]
 It is the duty of the parties and their
counsel to appear at the pre-trial.
 A party’s non-appearance may be
excused only if either:
1) Valid cause is shown for it;
2) A representative appears in his
a behalf, fully authorized in writing:
a) To enter into an amicable
settlement;
b) To submit to alternative modes
of dispute resolution;
c) To enter into
stipulations/admissions of facts
and of documents.
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REVIEWER IN REMEDIAL LAW
 Note: See the section on default for the
effects of failure to appear in the pre-
trial.
 SC admonishes the courts against
precipitate orders of default as they
have the effect of denying the party the
chance to be heard.
 There are instances when parties may
properly be defaulted, but such is the
exception rather than the rule and
should be used only in clear cases of
obstinate refusal or inordinate neglect
to comply with court orders. [Citibank
v. Chua (1993)]
C. Pre-Trial Brief [Rule 18, Sec. 6]
 Parties shall file and serve their
respective pre-trial briefs, ensuring
receipt by adverse party at least 3 days
before the date of the pre-trial.
 Pre-trial brief’s contents (Asked in the
2001 Bar Exam):
1) Statement of their willingness to
enter into amicable settlement or
alternative modes of dispute
resolution, indicating the desired
terms thereof;
2) Summary of admitted facts and
proposed stipulation of facts;
3) Issues to be tried/resolved;
4) Documents/exhibits to be
presented, stating the purpose
thereof;
5) Manifestation of their having availed
or their intention to avail themselves
of discovery procedures or referral to
commissioners;
6) Number and names of the
witnesses, and the substance of
their respective testimonies.
 Failure to file the pre-trial brief shall
have the same effect as failure to appear
at the pre-trial.
D. Record of Pre-Trial [Rule 18, Sec. 7]
 The pre-trial proceedings shall be
recorded. Upon termination of such
proceedings, the court shall issue the
pre-trial order.
 Pre-trial order’s contents:
1) Matters taken up in the conference;
2) Action taken thereon;
3) Amendments allowed on the
pleadings;
4) Agreements/admissions made by
the parties as to any matters
considered;
Part 2: Ordinary Civil Action
5) Should the action proceed to trial,
the explicit definition and limit of
the issues to be tried.
CIVIL PROCEDURE
 Consequence: The contents of the order
shall control the subsequent course of
the action, unless modified before trial
to prevent manifest injustice.
 Upon manifestation of the parties of
their willingness to discuss a
compromise, the TC should order the
suspension of the proceedings to allow
them reasonable time to discuss and
conclude an amicable settlement.
 If despite all efforts exerted by the TC
and the parties the settlement
conference still fails, then the action
should have continued as if no
suspension had taken place. [Goldloop
Properties v. CA (1992)]
 Note: AM 03-1-09-SC
E. Calendar of Cases
 Under the direct supervision of the
judge, the clerk of court shall keep a
calendar of cases for pre-trial, for trial,
those whose trials were
adjourned/postponed, and those with
motions to set for hearing. [Rule 20, Sec.
1]
 Preference shall be given to habeas
corpus cases, election cases, special
civil actions, and those so required by
law. [Rule 20, Sec. 1]
 The assignment of cases to the different
branches of a court shall be done
exclusively by raffle. The assignment
shall be done in open session of which
adequate notice shall be given so as to
afford interested parties the opportunity
to be present. [Rule 20, Sec. 2]
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action

IX. TRIAL C. Subpoena

A. NOTICE OF TRIAL 1. TYPES OF SUBPOENA [RULE 21, SEC.

CIVIL PROCEDURE
B. ADJOURNMENTS AND POSTPONEMENT 1]
C. SUBPOENA  SUBPOENA AD TESTIFICANDUM -
D. CONDUCT OF TRIAL Process directed to a person, requiring
E. GENERAL ORDER OF TRIAL
him to attend and to testify at the
F. AGREED STATEMENT OF FACTS
G. STATEMENT OF THE JUDGE hearing/trial of an action or at any
H. SUSPENSION OF ACTIONS investigation conducted by competent
I. RECEPTION OF EVIDENCE authority, or for the taking of his
J. TRIAL BY COMMISSIONER deposition.
K. CONSOLIDATION AND SEVERANCE  SUBPOENA DUCES TECUM – Process
L. DEMURRER TO EVIDENCE directed to a person, requiring him to
bring with him any
A. Notice of Trial [Rule 30, Sec. 1] books/documents/things under his
 Upon entry of a case in the trial control. (Asked in the 1997 Bar Exam)
calendar, the clerk shall notify parties
the date of its trial, ensuring receipt of 2. BY WHOM ISSUED [RULE 21, SEC. 2]
the notice at least 5 days before the trial  The court before whom the witness is
date. required to attend;
 The court of the place where the
B. Adjournments and Postponements deposition is to be taken;
[Rule 30, Sec. 2]  The officer/body authorized by law to do
so in connection with investigations
 General rule: The court may adjourn a conducted by said officer/body;
trial from day to day to any stated time,  Any SC/CA Justice in any case or
as the expeditious and convenient investigation pending within the
transaction of business may require. Philippines.
 Exception: Court may not adjourn for
longer than 1 month for each 3. APPLICATION FOR SUBPOENA TO
adjournment, nor more than 3 months PRISONER [RULE 21, SEC. 2]
in all.  The judge/officer shall examine and
 Exception to exception: When study the application carefully to
authorized in writing by the SC Court determine WON it is made for a valid
Administrator. purpose.
 However, no prisoner sentenced to
Ground for Requisite for motion to
postponement of postpone death, reclusion perpetua or life
trial imprisonment and who is confined in a
For absence of Affidavit showing: penal institution shall be brought
evidence [Rule 30, 1) The materiality/relevancy outside for appearance/attendance in
Sec. 3] of such evidence; any court unless authorized by the SC.
2) That due diligence has
been used to procure the 4. SUBPOENA’S FORM AND CONTENTS
evidence [RULE 21, SEC. 3]
 Name of court;
But if the adverse party
admits the facts to be given
 Title of action/investigation;
in evidence, trial shall not  Directed to a person whose attendance
be postponed even if he is required
objects or reserves the right  If subpoena duces tecum, a reasonable
to object to their description of the
admissibility. books/documents/things demanded
which must appear to the court prima
For illness of Affidavit or sworn facie relevant.
party/counsel certification:
[Rule 30, Sec. 4] 1) That the presence of such 5. QUASHING A SUBPOENA [RULE 21,
party/counsel at the trial is SEC. 4]
indispensable;  Upon motion promptly made, at/before
2) That the character of his the time specified in the subpoena.
illness is such as to render
 Grounds for quashing:
his non-attendance
excusable. 1) Subpoena duces tecum:

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REVIEWER IN REMEDIAL LAW
a) It is unreasonable and
oppressive;
b) The relevancy of the
books/documents/things does
not appear;
c) The person in whose behalf the
subpoena is issued fails to
advance the reasonable cost of
production;
d) Witness fees and kilometrage
were not tendered when
subpoena was served.
2) Subpoena ad testificandum:
a) That the witness is not bound
thereby;
b) That witness fees and
kilometrage were not tendered
when the subpoena was served.
6. SUBPOENA FOR DEPOSITIONS [RULE
21, SEC. 5]
 Proof of service of a notice to take a
deposition is sufficient authorization for
the issuance of subpoena ad
testificandum for the persons named in
the notice.
 Issued by the clerk of court of the place
in which the deposition is to be taken.
 However, subpoena duces tecum for
depositions cannot be issued without
court order.
7. SERVICE OF SUBPOENA [RULE 21,
SEC. 6]
 Same manner as personal or
substituted service of summons.
 The original shall be exhibited and a
copy delivered to person on whom it is
served, with tender of fees for one day’s
attendance and kilometrage.
 Exception: Tender not required if
subpoena is issued by or on behalf of
the Republic or an officer/agency
thereof.
 For subpoena duces tecum, also tender
the reasonable cost of producing the
books/documents/things demanded.
 Service must be made so as to allow the
witness reasonable time for preparation
and travel to the place of attendance
8. PERSONAL APPEARANCE IN COURT
[RULE 21, SEC. 7]
 A person present in court before a
judicial officer may be required to testify
as if he were in attendance upon a
subpoena issued by such court/officer.
Part 2: Ordinary Civil Action
9. REMEDY IN CASE OF WITNESS’
FAILURE TO ATTEND
 Upon proof of service of subpoena and
CIVIL PROCEDURE
of witness’ failure to attend,
 the court/judge issuing the subpoena
may issue a warrant to the sheriff to
arrest the witness and bring him before
the court/officer where his attendance
is required. [Rule 21, Sec. 8]
 The cost of warrant and seizure
shall be paid by the witness if the
court determines that the failure to
attend was willful and without just
excuse.
 Such failure shall be deemed a
contempt of the court which issued the
subpoena. [Rule 21, Sec. 9]
 If subpoena was not issued by a
court, the disobedience shall be
punished by applicable law or ROC.
 Exception: Arrest warrant and
contempt not applicable to: [Rule 21,
Sec. 10]
1) A witness who resides more than
100km from his residence to the
place where he is to testify.
2) A detention prisoner, if there is no
permission from the court in which
his case is pending.
D. Conduct of Trial [Rule 30, Sec. 5]
 General rule: Trial shall be limited to
the issues stated in the pre-trial order.
 Exception:
1) Provisions on separate trials.
2) When for special reasons the court
directs otherwise.
E. General Order of Trial
 Plaintiff shall adduce evidence in
support of his claim;
 Defendant shall adduce evidence in
support of his defense, counterclaim,
cross-claim and 3rd-party complaint;
 3rd-party defendant (if any) shall
adduce evidence of his defense,
counterclaim, cross-claim and 4th-party
complaint;
 4th-party (and so forth) shall adduce
evidence of the material facts pleaded
by them;
 Parties whom any counterclaim or
cross-claim has been pleaded, shall
adduce evidence in support of their
defense, in the order prescribed by the
court.
 Parties may then respectively adduce
rebutting evidence only.
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REVIEWER IN REMEDIAL LAW
 Exception: When the court permits
them to adduce evidence upon their
original case, for good reasons and
in furtherance of justice.
 Upon admission of evidence, the case
shall be deemed submitted for decision,
unless the court directs the parties to
argue or to submit their respective
memoranda or any further pleadings.
 If several defendants or 3rd-party
defendants having separate defenses
appear by different counsel, the court
shall determine the relative order of
presentation of their evidence.
F. Agreed Statement of Facts [Rule
30, Sec. 6]
 Parties may agree in writing upon the
facts involved in the litigation, and
submit the case for judgment without
introduction of evidence.
 If the parties agree to only some of the
facts in issue, trial shall be held as to
the disputed facts in such order as the
court shall prescribe.
G. Statement of the Judge [Rule 30,
Sec. 7]
 During the hearing/trial of the case,
any statement made by the judge shall
be made of record in the STN if made
with reference to the
case/parties/witnesses/counsels.
H. Suspension of Actions [Rule 30,
Sec. 8]
 Governed by the CC provisions.
I. Reception of Evidence [Rule 30,
Sec. 9]
 General rule: The judge of the court
where the case is pending shall
personally receive the evidence to be
adduced by the parties.
 Exception: The court may delegate the
reception of evidence to its clerk of
court who is a member of the bar in:
a) Default hearings;
b) Ex parte hearings;
c) Cases where parties agree in
writing.
 However, the clerk of court has no
power to rule on objections to any
question/admission of exhibits.
 Objections shall be resolved by the
court upon submission of the clerk’s
report and TSN within 10 days from
termination of the hearing.
Part 2: Ordinary Civil Action
J. Trial By Commissioner
 COMMISSIONER – Includes a referee,
CIVIL PROCEDURE
an auditor or an examiner. [Rule 32,
Sec. 1]
1. KINDS OF TRIAL BY COMMISSIONER
[RULE 32, SEC. 1 AND 2]
 Reference by consent of both parties.
 Reference ordered on motion when:
a) Trial of an issue of fact requires the
examination of a long account on
either side
b) Taking of an account is necessary
for the court’s information before
judgment, or for carrying
judgment/order into effect.
c) A question of fact, other than upon
the pleadings, arises in any stage of
a case or for carrying a
judgment/order into effect.
2. ORDER OF REFERENCE [RULE 32,
SEC. 2 TO 12]
 When a reference is made, the clerk
shall furnish the commissioner with a
copy of the order of reference. The order
may specify/limit the commissioner’s
power, and may direct him to report
only upon particular issues, or to
do/perform particular acts, or to receive
and report evidence only.
 The commissioner shall set a
time/place for the first meeting and
shall notify parties/counsels.
 Upon completion of the trial/hearing,
the commissioner shall file a written
report with the court.
 The clerk shall notify parties of the filing
of the report. The parties 10 days to
object to the report’s findings.
 After the 10 days, the report shall be set
for hearing. The court may issue an
order adopting/modifying/rejecting the
report or part of it.
 When parties stipulate that the
Commissioner's findings of fact are
final, only questions of law shall
thereafter be considered.
K. Consolidation and Severance
1. CONSOLIDATION OF TRIAL [RULE 31,
SEC. 1]
 When actions involving common
question of law/fact are pending before
the court, it may:
1) Order a joint hearing/trial of any/all
the matters in issue in the actions;
2) Order all the actions consolidated;
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
3) Make such orders concerning the Equivalent to An interlocutory order
proceedings as to avoid unnecessary judgment (i.e. based and not appealable.
costs or delay. on the merits of the However, it may be the
evidence presented so subject of a petition for

CIVIL PROCEDURE
 Where a case has been partially tried
far) certiorari for GAD
before one judge, the consolidation of
under Rule 65
the same with another related case [Katigbak v.
pending before another judge who had Sandiganbayan]
no opportunity to observe the demeanor
of the witness during trial makes the MTD Demurrer
consolidation not mandatory. [PCGG v. When Before the service After the
Sandiganbayan (1992)] to File and filing of the plaintiff rests
answer his case
2. SEVERANCE OF TRIAL [RULE 31, SEC. Ground Those enumerated Only ground:
2] in Rule 16 The plaintiff has
 The court may issue separate trials for shown no right
convenience or to avoid prejudice: to relief (i.e.
1) Of any claim, cross-claim, evidence is
insufficient)
counterclaim or 3rd-party
Effect If a MTD is
complaint; granted, the
2) Of any separate issue; complaint is
3) Of any number of claims, cross- likewise dismissed.
claims, counterclaims, 3rd-party But, depending on
complaints or issues. the ground, the
complaint may be
L. Demurrer To Evidence re-filed

If the MTD is
 Definition: A specie of MTD that may denied, the
be invoked based on insufficiency of defendant shall file
evidence (i.e. upon the facts and the law his responsive
the plaintiff has shown no right to pleading
relief). [Rule 33, Sec. 1]
 It is invoked after the plaintiff has DIFFERENCES BETWEEN DEMURRER IN
presented all the evidence available to CIVIL AND CRIMINAL CASES
him. (Asked in the 2003 and 2007 Bar Exams)
Demurrer in civil Demurrer in criminal
Grant of demurrer Denial of demurrer cases cases
Defendant need not May be filed with or
The case shall be The court should set ask for leave of court without leave of court.
dismissed the date for the
reception of the Leave of court is
defendant’s evidence- necessary so that the
in-chief [Northwest accused can present
Airlines v. CA] his evidence in case
Plaintiff's remedy Xxx the demurrer is denied
would be to appeal.
If the demurrer was
However, if the order without leave, the
granting the demurrer accused can no longer
is reversed on appeal, present his evidence;
the defendant loses his the case is deemed
right to present submitted for decision
evidence. [Rule 33, Sec based on prosecution’s
.1; Republic v. Tuvera] evidence
[Rule 119, Sec.23]
The appellate court If the demurrer is The order of dismissal
should render granted, the order of is not appealable
judgment on the basis dismissal is appealable because it will
of the evidence constitute double
submitted by the jeopardy
plaintiff. [Radiowealth
Finance v. Del
Rosario]X

Page 55 of 370
REVIEWER IN REMEDIAL LAW
X. JUDGMENTS, FINAL ORDERS AND
ENTRY OF JUDGMENT
A. PARTS OF A JUDGMENT
B. DISTINCTION BETWEEN JUDGMENT AND
OPINION OF THE COURT
C. REQUISITES OF A VALID JUDGMENT
D. INTERPRETENTION OF THE JUDGMENT
E. KINDS OF JUDGMENT
F. AMENDMENTS TO JUDGMENT
G. ENTRY OF JUDGMENTS AND FINAL
ORDERS
 JUDGMENT - The final ruling by a
court of competent jurisdiction
regarding the rights and obligations of
the parties or other matters submitted
to it in an action/proceeding.
A. Parts of a Judgment
 OPINION OF THE COURT - It contains
the findings of facts and conclusions of
law;
 DISPOSITION OF THE CASE – The
final and actual disposition of the rights
litigated (i.e. the dispositive part);
 Signature of the judge.
B. Distinction Between Judgment
and Opinion of the Court
(Asked in the 2006 Bar Exam)
 A judgment (or FALLO) must be
distinguished from an opinion.
 The latter is the informal expression of
the views of the court and cannot
prevail against its final order or
decision.
 While the two may be combined in one
instrument, the opinion forms no part
of the judgment.
 So ... there is a distinction between the
findings and conclusions of a court and
its judgment.
 While they may constitute its decision
and amount to a rendition of a
judgment they are not the judgment
itself.
 They amount to nothing more than an
order for judgment, which, of course,
must be distinguished from the
judgment. (Freeman on Judgments, Vol.
I, 5th Edition, page 6, quoted in Casilan
vs. Salcedo, 1969)
Part 2: Ordinary Civil Action
C. Requisites of a Valid Judgment
[Rule 36, Sec. 1; Art. 8, Sec. 14, 1987
Constitution]
CIVIL PROCEDURE
a. Court/tribunal must be with authority to
hear and determine the matter before it;
b. Court must have jurisdiction over the
parties and the subject matter;
c. Parties must have been given an
opportunity to adduce evidence in their
behalf;
d. Evidence must have been considered by
the tribunal in deciding the case; [Acosta
v. COMELEC]
e. Judgment must be in writing, personally
and directly prepared by the judge;
f. A verbal judgment is, under the law,
ineffective. [Corpus v. Sandiganbayan]
g. Judgment must state clearly the facts and
the law upon which the decision is based,
signed by the judge and filed with the
clerk of court.
 A decision need not be a complete
recital of the evidence presented. So
long as the factual and legal bases are
distinctly and clearly set forth, the
judgment is valid. [Chan v. CA]
D. Interpretation of the Judgment
 Where the judgment is difficult to
execute because of ambiguity in its
terms, the remedy of the party is to file
a motion for clarificatory judgment and
not to assail the judgment as void.
 Where there is a conflict between the
body and the dispositive portion (fallo)
of the decision, the dispositive portion
controls.
 Exception: Where the inevitable
conclusion from the body of the decision
is so clear that there was a mistake in
the dispositive portion, the body of the
decision will prevail. [Poland Industrial
v. National Dev’t Co.]
E. Kinds of Judgment
1. JUDGMENT UPON COMPROMISE –
 It is one conferred on the basis of a
compromise agreement entered into
between the parties.
 It is immediately executory in the
absence of a motion to set aside on the
ground of FAME.
2. JUDGMENT UPON CONFESSION –
 It is one rendered by the court when a
party expressly agrees to the other
party’s claim or acknowledges the
validity of the claim against him.
Page 56 of 370
REVIEWER IN REMEDIAL LAW
Judgment upon Judgment by
compromise confession
The provisions and An affirmative
terms are settled by voluntary act of
the parties to the defendant himself.
action. The judgment court exercises
is entered in the record certain amount
by consent of the supervision over
court. entry of judgment.
 Kinds of judgment by confession:
a. JUDGMENT BY COGNOVIT
ACTIONEM – After service, the
defendant, instead of entering a plea,
acknowledged and confessed that the
plaintiff’s cause of action was just and
rightful.
b. JUDGMENT BY CONFESSION
RELICTA VERIFICATIONE – After
pleading and before trial, the
defendant both: (a) confessed the
plaintiff’s cause of action and (b)
withdrew his plea or other allegations,
whereupon judgment was entered
against him without proceeding to
trial.
 Remedy against judgment by consent,
confession or compromise is to first
file a motion to set it aside; if denied,
file the appropriate petition under
Rule 65.
3. JUDGMENT UPON THE MERITS –
 It is one that is rendered after
consideration of the evidence submitted
by the parties during the trial of the
case.
4. CLARIFICATORY JUDGMENT –
 It is rendered to clarify an ambiguous
judgment or one difficult to comply
with.
5. JUDGMENT NON PRO TUNC –
 Literally, “now for then”. It is a
judgment intended to enter into the
record the acts which had already been
done, but which do not appear in the
records.
6. JUDGMENT SIN PERJUICIO –
 It may refer to a dismissal of a case
without prejudice to it being re-filed.
7. CONDITIONAL JUDGMENT –
 It is one the effectivity of which depends
upon the occurrence or non-occurrence
of an event.
8. SEVERAL JUDGMENT –
 It is one rendered by a court against one
or more defendants and not against all
of them, leaving the action to proceed
against the others. [Rule 36, Sec. 4]
Part 2: Ordinary Civil Action
 It is proper when the liability of each
party is clearly separate and distinct
and from his co-parties
the
CIVIL PROCEDURE
 such that the claims against each of
The
a
them could have been the subject of
of separate suits, and the judgment for
the or against one of them will not
necessarily affect the other.
9. SEPARATE JUDGMENT –
 It is one rendered disposing of a claim
among several others presented in a
case, after a determination of the issues
material to a particular claim and all
counterclaims arising out of the
transaction or occurrence that is the
subject matter of said claim. [Rule 36,
Sec. 5]
 It is proper when more than one
claim for relief is presented in an
action for the determination as to
the issues material to the claim has
been made.
 The judgment shall terminate the
action with respect to the claims
disposed of, and shall proceed as to
the remaining claims.
 The court may stay its enforcement
until rendition of subsequent
judgments, and may prescribe
conditions to secure the judgment’s
benefits.
 Judgment may be given for/against one
or more of several plaintiffs/defendants.
The court may require the parties on
each side to file adversary pleadings as
between themselves. [Rule 36, Sec. 3]
 If judgment is rendered against 2 or
more persons sued as an entity without
juridical personality, the judgment shall
set out their individual names (if
known). [Rule 36, Sec. 6]
10. PROMULGATION –
 The process by which a decision is
published, officially announced, made
known to the public or delivered to the
clerk of court for filing, coupled with
notice to the parties or their counsel.
11. MEMORANDUM DECISION –
 A decision of the appellate court which
adopts the findings and conclusions of
the TC.
 A judgment is considered rendered
upon the filing of the signed decision.
 This includes an amended decision
because an amended decision is a
distinct and separate judgment and
must follow the established
procedural rule.
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action

F. Amendments To Judgments Court makes a Serves to add to the

(Asked in the 2008 Bar Exams) thorough study of the original judgment
 The power to amend judgments is original judgment and
renders the amended

CIVIL PROCEDURE
inherent to the court before judgment
and clarified judgment
becomes final and executory. only after considering
 General rule: The court cannot amend all the factual and legal
the judgment once it has become final issues
and executory.
 Exception:
1) To make corrections of clerical
G. Entry of Judgments and Final
errors, not substantial amendments,
as by an amendment non pro tunc; Orders
2) To clarify an ambiguity which is [Rule 36, Sec. 2]
borne out by and justifiable in the  If there is no appeal/MNT/MFR filed
context of the decision; within the prescribed periods, the clerk
3) In judgments for support, which can of court shall enter the judgment or
always be amended from time to final order in the book of entries of
time. judgments.
 Date of finality of the judgment – Date
Amended/clarified Supplemental decision of its entry in the book.
judgment  The record shall contain the judgment’s
An entirely new Does not take the place dispositive part, shall be signed by the
decision and of or extinguish the clerk of court, and certified that the
supersedes the original original judgment judgment has become final and
judgment executor.

XI. EXECUTION OF JUDGMENTS

A. EXECUTION AS A MATTER OF RIGHT

B. DISCRETIONAY EXECUTION
C. EXECUTION OF JUDGMENTS FOR MONEY
D. EXECUTION OF JUDGMENTS FOR SPECIFIC
ACTS
E. EXECUTION OF SPECIAL JUDGMENTS
F. GENERAL RULES GOVERNING EXECUTION
G. EFFECTS OF JUDGMENTS OR FINAL ORDERS

A. Execution as a Matter of Right

JUDGMENT OR FINAL ORDER (order

that disposes of the action or proceeding)

If no appeal has been perfected, or the If an appeal has been perfected and duly
period of appeal has expired resolv ed, there are twoways by whic h
execution can be carried out

Prevailing Party applies (by motion) for a

writ of execution, whic h is granted by the Prevailing party files a The appellate court
judge since it is a matter of right motion in the court of may, on motion in the
origin, submitting same case, when the
therewith certified true interest of justice so
copies of the judgment or requires, direct the
judgments or final order court of origin to issue
or orders sought to be the writ of execution.
enforced and of the entry
thereof, with notice to
the adverse party1.

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REVIEWER IN REMEDIAL LAW
 General rule: When the judgment or
order becomes executory, the court
cannot refuse to issue a writ of
execution
 Exceptions: The issuance of a writ of
execution which issues as a matter of
right can be countered in any of the
following cases (R-I-N-S-E-D):
 When a PETITION FOR RELIEF or
an action to enjoin judgment is filed
and a preliminary injunction is
prayed for and granted (Rule 38.5);
 When the judgment turns out to be
INCOMPLETE OR IS
 CONDITIONAL since as a matter of
law, such judgment CANNOT BE
FINAL;
 When the judgment has been
NOVATED BY THE PARTIES
1) When SUBSEQUENT FACTS
AND CIRCUMSTANCES
transpire as to render such
execution unjust or impossible
2) On EQUITABLE GROUNDS as
when there has been a change in
the situation of the parties
which makes execution
INEQUITABLE.
3) When the judgment becomes
DORMANT, the 5-year period
under Rule39.6 having expired
without the judgment having
been revived.
 General rule: An ex parte motion for
the issuance of the writ of execution
would suffice since the trial court may
take judicial notice of the record of the
case to determine the propriety of the
issuance thereof.
 Exception: However when the losing
party shows that subsequent facts had
taken place which would render the
execution unjust, a hearing on the
motion should be held. [Luzon Surety v.
Beson (1976)]
 General rule: An appeal seasonably
perfected shall stay the execution of the
judgment, unless discretionary
execution is granted by the court.
 Exceptions: However, judgments in the
following action, despite perfection of an
appeal, shall be executed, unless the
court orders otherwise:
 injunction
 receivership
 accounting
 support
Part 2: Ordinary Civil Action
 such other judgments as shall now
or may hereafter be declared to be
immediately executory
CIVIL PROCEDURE
 Judgments in these actions shall be
enforceable after their rendition and
shall not, be stayed by an appeal taken
therefrom, UNLESS OTHERWISE
ORDERED BY THE TRIAL COURT.
 On appeal therefrom, the appellate
court in its discretion may make an
order suspending, modifying, restoring
or granting the injunction, receivership,
accounting, or award of support.
 General rule:
 According to Rule 39, Section 6: A
final and executory judgment or
order may be executed on motion
within five (5) years from the date of
its entry.
 After the lapse of such time, and
before it is barred by the statute of
limitations, a judgment may be
enforced by action.
 The revived judgment may also be
enforced by motion within five (5)
years from the date of its entry and
thereafter by action before it is
barred by the statute of limitations.
 The maximum period within which a
final and executory judgment may be
executed is 20 years (Rule 39.6 in
relation to New Civil Code provision on
prescription of judgment).
 Exceptions:
 judgment for support WHICH DO
NOT BECOME DORMANT AND
WHICH CAN BE EXECUTED BY
MOTION [Canonizado v. Benitez]
except for support in arrears beyond
10 years from the date they become
due;
 contempt orders by reason of
unauthorized reentry on the land by
the ejected defendant [Azotes v.
Blanco];
 issuance of writs of possession in
FORECLOSURE CASES within the
statute of limitations;
 land registration proceedings (and
other special proceedings), hence
the right to ask for a WRIT OF
POSSESSION THEREIN NEVER
PRESCRIBES
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action

B. Discretionary Execution

CIVIL PROCEDURE
Situation 1: Trial Court still has Situation 2: Trial court has lost
jurisdiction over the case and is in jurisdiction
possession of either the original record
or the record on appeal, as the case
may be.

In Situat ion1, prevailing party f iles a MOTION WITH

NOTICE TO THE ADVERSE PARTY in the Trial
Court. In Situat ion2, prevailing party f iles the motion
f or execution pending appeal in the appellate court.

Discretionary execution may be

granted only f or GOOD REASONS to
be stated in a SPECIAL ORDER.

NOTE HOWEVER that Discretionary execution may be stayed upon approval by the proper
court of a SUFFICI ENT SUPERSEDEAS BOND FIL ED by the party against w hom it is
directed, conditioned upon the perf ormance of the judgment or order allow ed to be executed
in case it shall be f inally sustained in w hole or in part. The bond thus given m ay be
procee ded against on motion with notice to the s ure ty

IN CASE the judgment w hich w as executed pending appeal is reversed

totally or partially, or annulled, on appeal or otherw ise, the trial court may, on
motion, issue such orders of res titution or reparation of dam ages as
equity and justice m ay w arrant unde r the circumstances

 General rule: Under the Rule on  It is acquired either by the arrest of

Discretionary Execution, the court the accused or by his voluntary
rendering the judgment, if it still has appearance in court. [Heirs of
jurisdiction, may exercise discretion Justice J.B.L. Reyes v. CA (2000)]
and order execution pending appeal
(Asked in the 2002 Bar Exam).  General rule: The filing of a
 Exception: This rule, however, is supersedeas bond is sufficient to stay
inapplicable in the case of the Court of the enforcement of a discretionary
Appeals. execution.
 The Rule on Discretionary Execution  Exception: However, according to J.
contemplates a situation where a Regalado, THE FILING OF
judgment or final order rendered in SUPERSEDEAS BOND does not entitle
the exercise of its original the judgment debtor to the suspension
jurisdiction and the prevailing party of execution as a MATTER OF RIGHT.
in said decision seeks immediate  Where the needs of the prevailing
execution during the pendency of an party are URGENT, the Court can
appeal. order immediate execution despite
 The CA has no authority to issue such SUPERSEDEAS BOND.
IMMEDIATE EXECUTION PENDING
APPEAL OF ITS OWN DECISIONS C. Execution of Judgments for
THEREIN. Money
 Discretionary execution is allowed (asked in the 2007 Bar Exam)
pending appeal of judgment or final
order of the trial court upon good 1. IMMEDIATE PAYMENT ON DEMAND
reasons to be stated in a e special
 Procedure:
order.
 The sheriff or executing officer
 A JUDGMENT OF THE CA CANNOT
demands from the judgment
BE EXECUTED PENDING APPEAL.
obligor the immediate payment of

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REVIEWER IN REMEDIAL LAW
the full amount stated in the writ of
execution and all lawful fees.
 The judgment obligor shall pay in
cash, certified bank check payable
to the judgment obligee, or ANY
OTHER FORM OF PAYMENT
ACCEPTABLE TO THE LATTER (e.g.,
dacion en pago), the amount of the
judgment debt under proper receipt
directly to the judgment obligee or
his authorized representative if
present at the time of payment.
 The lawful fees shall be handed
under proper receipt to the
executing sheriff who shall turn over
the said amount within the same
day to the clerk of court of the court
that issued the writ.
 If the judgment obligee or his
authorized representative is not
present to receive payment, the
judgment obligor shall deliver the
aforesaid payment to the executing
sheriff. The latter shall turn over all
the amounts coming into his
possession within the same day to
the clerk of court of the court that
issued the writ, or if the same is not
practicable, deposit said amounts to
a fiduciary account in the nearest
government depository bank of the
Regional Trial Court of the locality.
 The clerk of said court shall
thereafter arrange for the remittance
of the deposit to the account of the
court that issued the writ whose
clerk of court shall then deliver said
payment to the judgment obligee in
satisfaction of the judgment.
 The excess, if any, shall be delivered
to the judgment obligor while the
lawful fees shall be retained by the
clerk of court for disposition as
provided by law. In no case shall the
executing sheriff demand that any
payment by check be made payable
to him.
2. SATISFACTION BY LEVY
 Nature:
 LEVY MEANS THE ACT OR ACTS by
which an officer sets apart or
appropriates a part or the whole of
the property of the judgment debtor
for purposes of the prospective
execution sale [Llenares v.
Vandevella (1966)].
 If susceptible of appropriation, the
officer REMOVES AND TAKES THE
Part 2: Ordinary Civil Action
PROPERTY FOR SAFEKEEPING;
otherwise the same is placed under
sheriff’s guards. Without valid levy
CIVIL PROCEDURE
having been made, ANY SALE OF
THE PROPERTY THEREAFTER is
void.
 Procedure:
 If the judgment obligor cannot pay
all or part of the obligation in cash,
certified bank check or other mode
of payment acceptable to the
judgment obligee, the officer shall
levy upon:
 the properties of the judgment
obligor of every kind and nature
whatsoever which may be disposed,
of for value and
 not otherwise exempt from
execution
 The sheriff gives the judgment
obligor the option as to which of the
property or part thereof may be
levied upon, sufficient to satisfy the
judgment
 If the judgment obligor does not
exercise the option, the officer shall
first levy on the personal properties,
if any, and then on the real
properties if the personal properties
are insufficient to answer for the
judgment.
 The sheriff shall sell only a sufficient
portion of the personal or real
property of the judgment obligor
which has been levied upon.
 When there is more property of the
judgment obligor than is sufficient
to satisfy the judgment and lawful
fees, he must sell only so much of
the personal or real property as is
sufficient to satisfy the judgment
and lawful fees.
3. GARNISHMENT OF DEBTS AND
CREDITS
 Scope: The officer may levy on debts
due the judgment obligor and other
credits, including bank deposits,
financial interests, royalties,
commissions and other personal
property not capable of manual delivery
in the possession or control of third
parties.
 The process of levying shall be
called garnishment if the property
involved is money, stocks, or other
incorporeal property in the HANDS
OF THIRD PERSONS. Garnishment
merely sets apart such funds but
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REVIEWER IN REMEDIAL LAW
does not constitute the creditor as
owner of the garnished property.
 In Chinabank v. Ortega, the Court
held that garnishment is not a
violation of RA 1405 on the secrecy
of bank deposits.
 Procedure:
 Levy shall be made by SERVING
NOTICE UPON THE PERSON
OWING SUCH DEBTS OR HAVING
IN HIS POSSESSION OR CONTROL
SUCH CREDITS TO WHICH THE
JUDGMENT OBLIGOR IS
ENTITLED. The garnishment shall
cover only such amount as will
satisfy the judgment and all lawful
fees.
 The garnishee shall make a
WRITTEN REPORT to the court
within five (5) days from service of
the notice of garnishment stating
whether or not the judgment obligor
has sufficient funds or credits to
satisfy the amount of the judgment.
 If not, the report shall state how
much funds or credits the garnishee
holds for the judgment obligor
 The garnished amount in cash, or
certified bank check issued in the
name of the judgment obligee, shall
BE DELIVERED DIRECTLY TO THE
JUDGMENT OBLIGEE within ten
(10) working days from service of
notice on said garnishee requiring
such delivery, except the lawful fees
which shall be paid directly to the
court.
 In the event there are two or more
garnishees holding deposits or
credits sufficient to satisfy the
judgment, the judgment obligor, if
available, shall have the right to
indicate the garnishee or garnishees
who shall be required to deliver the
amount due, otherwise, the choice
shall be made by the judgment
obligee.
 The executing sheriff shall observe
the same procedure under
IMMEDIATE PAYMENT ON
DEMAND with respect to delivery of
payment to the judgment obligee.
Part 2: Ordinary Civil Action
D. Execution of Judgments for
Specific Acts
CIVIL PROCEDURE
1. CONVEYANCE, DELIVERY OF DEEDS,
OR OTHER SPECIFC ACTS
 Under this situation, there is a
judgment which directs a party to
execute a conveyance of land or
personal property, or to deliver deeds or
other documents, or to perform, any
other specific act IN CONNECTION
THEREWITH.
 If the party so ordered fails to comply
within a specified period, there are two
possible remedies. Either:
 the court may DIRECT THE ACT TO
BE DONE AT THE COST OF THE
DISOBEDIENT PARTY by some
other person appointed by the court
and the act when so done shall have
like effect as if done by the party, or
 if real or personal property is
situated within the Philippines, the
court in lieu of directing a
conveyance thereof may by an order
divest the title of any party and vest
it in others, which shall have the
force and effect of a conveyance
executed in due form of law.
2. SALE OF REAL OR PERSONAL
PROPERTY
 If judgment is rendered ordering the
sale of real or personal property, an
order for execution shall be issued
describing such property as may be
ordered sold, selling it, and applying the
proceeds in conformity with the
judgment’s instructions.
3. DELIVERY OR RESTITUTION OF REAL
PROPERTY
 The officer shall demand of the person
against whom the judgment for the
delivery or restitution of real property is
rendered and all persons claiming rights
under him
 to peaceably vacate the property within
three (3) working days, and restore
possession thereof to the judgment
obligee,
 otherwise, the officer shall oust all
such persons therefrom with the
assistance, if necessary, of appropriate
peace officers, and employing such
means as may be reasonably necessary
to retake possession, and place the
judgment obligee in possession of such
property.
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REVIEWER IN REMEDIAL LAW
 ANY COSTS, DAMAGES, RENTS OR
PROFITS AWARDED BY THE
JUDGMENT SHALL BE SATISFIED IN
THE SAME MANNER AS A JUDGMENT
FOR MONEY.
4. REMOVAL OF IMPROVEMENTS ON
PROPERTY SUBJECT OF EXECUTION
 When the property subject of the
execution contains improvements
constructed or planted by the judgment
obligor or his agent,
 the officer shall not destroy, demolish or
remove said improvements except upon
special order of the court, issued upon
motion of the judgment obligee after the
hearing and after the former has failed
to remove the same within a reasonable
time fixed by the court.
5. DELIVERY OF PERSONAL PROPERTY
 In judgment for the delivery of personal
property, the officer shall take
possession of the same and forthwith
deliver it to the party entitled thereto
and satisfy any judgment for money as
therein provided.
E. Execution of Special Judgments
 When a judgment requires the
performance of ANY ACT OTHER THAN
THOSE MENTIONED IN THE TWO
PRECEDING SECTIONS (EXECUTION
OF JUDGMENT FOR MONEY AND
SPECIFIC ACTS),
 a certified copy of the judgment shall be
attached to the writ of execution and
shall be served by the officer upon the
party against whom the same is
rendered, or upon any other person
required thereby, or by law, to obey the
same, and such party or person may be
punished for contempt if he disobeys
such judgment.
 Special judgments are those which can
be complied with by the judgment
obligor because of his personal
qualifications or circumstances (e.g., a
judgment ordering a partner to render
an accounting, a judgment ordering a
party to comply with his recording
contract otherwise, pay damages).
 Note the difference with sections 9 and
10 (on execution of money judgments
and specific acts) where contempt is not
a remedy against disobedience by a
party.
Part 2: Ordinary Civil Action
F. General Rules Governing
Executions
CIVIL PROCEDURE
1. PROPERTY EXEMPT FROM
EXECUTION
 General rule: Except as otherwise
expressly provided by law, the following
property, and no other, shall be exempt
from execution: (FOTNUP-LBS-GMRE)
(a) The judgment obligor's 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 or family
use sufficient for four months;
(g) The professional 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;
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REVIEWER IN REMEDIAL LAW
(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. (e.g., property mortgaged to the
DBP [Section 26, CA 458]; savings of
national prisoners deposited with
the POSTAL SAVINGS BANK [Act
2489]; benefits from private
retirement systems of companies
and establishments with limitations
[RA 4917]; laborer’s wages except for
debts incurred for food, shelter,
clothing and medical attendance
[ART 1708, CIVIL CODE]; benefit
payments from SSS [Section 16, RA
1161 AS AMENDED])
 Exception: However, no article or
species of property mentioned in this
section shall be exempt from (1)
execution issued upon a judgment
recovered for its price or (2) upon a
judgment of foreclosure of a mortgage
thereon.
 The exemptions MUST BE CLAIMED,
otherwise they are deemed waived. It is
not the duty of the sheriff to set off the
exceptions on his own initiative.
[Herrera v. Mcmicking]
2. RETURN OF WRIT OF EXECUTION
 The writ of execution shall be
returnable to the court issuing it
immediately after the judgment has
been satisfied in part or in full.
 If the judgment cannot be satisfied in
full within thirty (30) days after his
receipt of the writ, the officer shall
report to the court and state the reason
therefor.
 Such writ shall continue in effect during
the period within which the judgment
may be enforced by motion.
 The officer shall make a report to the
court every thirty (30) days on the
proceedings taken thereon until the
judgment is satisfied in full, or its
effectivity expires.
 The returns or periodic reports shall set
forth the whole of the proceedings
taken, and shall be filed with the court
and copies thereof promptly furnished
the parties. [Section 12, Rule 39]
Part 2: Ordinary Civil Action
3. NOTICE REQUIREMENT
 Before the sale of property on execution,
notice thereof must be given as follows:
CIVIL PROCEDURE
a. In case of perishable property, by
posting written notice of the time
and place of the sale in three (3)
public places, preferably in
conspicuous areas of the (CPM)
municipal or city hall, post office
and public market in the
municipality or city where the sale is
to take place, for such time as may
be reasonable, considering the
character and condition of the
property;
b. In case of other personal property,
by posting a similar notice in the
three (3) public places above-
mentioned for not less than five (5)
days;
c. In case of real property, by posting
for twenty (20) days in the three (3)
public places abovementioned a
similar notice particularly describing
the property and stating where the
property is to be sold, and if the
assessed value of the property
exceeds fifty thousand (P50,000.00)
pesos, by publishing a copy of the
notice once a week for two (2)
consecutive weeks in one newspaper
selected by raffle, whether in
English, Filipino, or any major
regional language published, edited
and circulated or, in the absence
thereof, having general circulation
in the province or city;
d. In all cases, written notice of the
sale shall be given to the judgment
obligor, at least three (3) days before
the sale, except as provided in
paragraph (a) hereof where notice
shall be given the same manner as
personal service of pleadings and
other papers as provided by section
6 of Rule 13.
 The notice shall specify the place, date
and exact time of the sale which should
not be earlier than nine o'clock in the
morning and not later than two o'clock
in the afternoon (9am-2pm).
 The place of the sale MAY BE AGREED
UPON BY THE PARTIES.
 In the absence of such agreement, the
sale of the property or personal property
not capable of manual delivery
 shall be held in the office of the clerk of
court of the Regional Trial Court or the
Municipal Trial Court which issued the
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
writ of or which was designated by the  The proceedings set forth above shall
appellate court. not prevent such claimant or any third
 In the case of personal property capable person from vindicating his claim to the

CIVIL PROCEDURE
of manual delivery, the sale shall be property in a separate action,
held in the place where the property is  or prevent the judgment obligee from
located. [Section 15, Rule 39] claiming damages in the same or a
separate action against a third-party
PENALTIES claimant who filed a frivolous or plainly
(Selling without notice and defacing notice) spurious claim.
An officer selling A person willfully
without the notice removing or defacing  Apart from Rule 39, the only other
prescribed by section the notice posted provisions of the Rules of Court dealing
15 of this Rule with terceria or third party claims are
pay punitive damages if done before the sale, Rule 57.14 on preliminary attachment
in the amount of five or before the and Rule 60.7 on replevin.
thousand (P5,000.00) satisfaction of the
pesos to any person judgment if it be  In Sierra v. Rodriguez and Northern
injured thereby, IN satisfied before the Motors v. Coquia, the Court held that
ADDITION TO HIS sale, shall be liable to
the third party claimant CANNOT
ACTUAL DAMAGES, pay five thousand
BOTH TO BE (P5,000.00) pesos to APPEAL NOR AVAIL OF CERTIORARI
RECOVERED BY any person injured by AS A REMEDY in the event that his
MOTION IN THE SAME reason thereof, in claim was denied since HE IS A
ACTION addition to his actual NONPARTY to the original action.
damages, to be
recovered by motion 5. PREVENTING EXECUTION SALE
in the same action
 At any time before the sale of property
4. RULES REGARDING TERCERIA on execution, the judgment obligor may
(THIRD-PARTY CLAIMS) prevent the sale by paying the amount
(Asked in the 2000 & 2005 Bar Exams) required by the execution and the costs
that have been incurred therein.
 The third person whose property was levied [Section 18, Rule 39]
on must make an (A—G—S-)  This is akin to the equitable right of
 affidavit of his title thereto or right to the
redemption under Rule 68, which is
possession thereof,
available to the judgment obligor in
 stating the grounds of such right or title,
and judicial foreclosure of mortgage.
 serves the same upon the officer making  The difference lies in the fact that under
the levy and copy thereof, upon the Rule 68, a definite period is given.
judgment oblige;
 The officer shall not be bound to keep the 6. CONCLUDING THE EXECUTION SALE
property, as a general rule
 When the purchaser is the judgment
obligee, and no third-party claim has
 Sheriff is bound to keep the property when been filed, he need not pay the amount
the judgment obligee, on demand of the of the bid if it does not exceed the
officer, files a bond approved by the court to amount of his judgment. If it does, he
indemnify the third-party claimant in a sum shall pay only the excess. [Section 21,
not less than the value of the property levied Rule 39]
on.  By written consent of the judgment
obligor and obligee, or their duly
authorized representatives, the officer
 In case of disagreement as to such value of
the bond, the same shall be determined by
may adjourn the sale to any date and
the court issuing the writ of execution. time agreed upon by them. Without
 No claim for damages for the taking or such agreement, he may adjourn the
keeping of the property may be enforced sale from day to day if it becomes
against the bond unless the action therefor necessary to do so for lack of time to
is filed within one hundred twenty (120) complete the sale on the day fixed in the
days from the date of the filing of the bond. notice or the day to which it was
 The officer shall not be liable for damages for adjourned [Section 22, Rule 39]. Written
the taking or keeping of the property, to any
consent is essential, otherwise the
third-party claimant if such bond is filed

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REVIEWER IN REMEDIAL LAW
adjournment will be void [Abrozar v. IAC
(1988)]
 Upon a sale of real property , the officer
must give to the purchaser a certificate
of sale containing: (a) A particular
description of the real property sold; (b)
The price paid for each distinct lot or
parcel; (c) The whole price paid by him;
(d) A statement that the right of
redemption expires one (1) year from
the date of the registration of the
certificate of sale. Such certificate must
be registered in the registry of deeds of
the place where the property is situated.
[Section 25, Rule 39]
 How property sold on execution (See
Appendix1)
7. RULES GOVERNING REDEMPTION
 Real property sold as provided in the
last preceding section, or any part
thereof sold separately, may be
redeemed in the manner hereinafter
provided, by the following persons:
 The judgment obligor; or his
successor in interest in the whole or
any part of the property;
 A creditor having a lien by virtue of
an attachment, judgment or
mortgage on the property sold, or on
some part thereof, subsequent to
the lien under which the property
was sold. Such redeeming creditor is
termed a redemptioner. [Section 27,
Rule 39]
 Redemption can be made by either
person:
 JUDGMENT OBLIGOR, within one
year from the date of registration of
the certificate of sale
 REDEMPTIONER, within one year
from the date of registration of the
certificate of sale; or within 60 days
from the last redemption by another
redemptioner.
 BUT IN ALL CASES, the judgment
obligor shall have the entire period
of 1 YEAR from the date of
registration of the sale to redeem the
property.
 IF THE JUDGMENT OBLIGOR
REDEEMS, no further redemption is
allowed and he is restored to his
estate.
 THE PERIOD FOR REDEMPTION IS
NOT SUSPENDED by an action to
annul the foreclosure sale.
Part 2: Ordinary Civil Action
 A right of redemption cannot be levied
upon by a judgment creditor. The
creditor may not deprive the debtor of
CIVIL PROCEDURE
any further rights to the property
[Lichauco v. Olegario]
 Redemption price varies depending on
who the redemptioner is:
 If judgment obligor:
 Purchase price
o 1 % interest thereon up to the
time of redemption
o Any amount of assessments or
taxes which the purchaser may
have paid thereon after
purchase and interest on such
last named amount at the same
rate.
o If the purchaser be also a
creditor having prior lien to that
of the redemptioner, other than
the judgment under which such
purchase was made, the amount
of such other lien, with interest.
 If redemptioner
 Amount paid on the last redemption
o 2% interest thereon.
o Any amount of assessments or
taxes which the last
redemptioner may have paid
thereon after redemption by him
with interest on such last named
amount;
o Amount of any liens held by said
last redemptioner prior to his
own with interest
8. EFFECTS OF REDEMPTION
 [Section 29, Rule 39]
 If the judgment obligor redeems he
must make the same payments as
are required to effect a redemption
by a redemptioner, whereupon, no
further redemption shall be allowed
and he is restored to his estate.
 The person to whom the redemption
payment is made must execute and
deliver to him a certificate of
redemption acknowledged before a
notary public or other officer
authorized to take acknowledgments
of conveyances of real property.
 Such certificate must be filed and
recorded in the registry of deeds of
the place in which the property is
situated and the registrar of deeds
must note the record thereof on the
margin of the record of the
certificate of sale.
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REVIEWER IN REMEDIAL LAW
 The payments mentioned in this and
the last preceding sections may be
made to the purchaser or
redemptioner, or for him to the
officer who made the sale.
 [Section 30, Rule 39]
 A redemptioner must produce to the
officer, or person from whom he seeks
to redeem, and serve with his notice to
the officer
 a copy of the judgment or final order
under which he claims the right to
redeem, certified by the clerk of the
court wherein the judgment or final
order is entered, OR,
 if he redeems upon a mortgage or
other lien, a memorandum of the
record thereof, certified by the
registrar of deeds, OR
 an original or certified copy of any
assignment necessary to establish
his claim; AND
 an affidavit executed by him or his
agent, showing the amount then
actually due on the lien.
 [Section 31, Rule 39]
 Until the expiration of the time
allowed for redemption, the court
may, as in other proper cases,
restrain the commission of waste on
the property by injunction, on the
application of the purchaser or the
judgment obligee, with or without
notice;
 but it is not waste for a person in
possession of the property at the
time of the sale, or entitled to
possession afterwards, during the
period allowed for redemption, to
continue to use it in the same
manner in which it was previously
used, or to use it in the ordinary
course of husbandry; or to make the
necessary repairs to buildings
thereon while he occupies the
property.
 The purchaser or a redemptioner shall
not be entitled to receive the rents,
earnings and income of the property
sold on execution, or the value of the
use and occupation thereof when such
property is in the possession of a
tenant.
 All rents, earnings and income derived
from the property pending redemption
shall belong to the judgment obligor
until the expiration of his period of
Part 2: Ordinary Civil Action
redemption. In all, the judgment debtor
shall exercise the following rights:
 Remain in possession of the
CIVIL PROCEDURE
property
 He cannot be ejected;
 Use the property in the same
manner it was previously used;
 Make Necessary repairs to buildings
thereon while he occupies the
property
 Use it in the ordinary course of
husbandry
 vi. Collect rents, earnings and
income derived from the property
until the expiration of peiord of
redemption.
 [Section 33, Rule 39]
 If no redemption be made within one
(1) year from the date of the
registration of the certificate of sale,
 the purchaser is entitled to a
conveyance and possession of the
property; or, if so redeemed
whenever sixty (60) days have
elapsed and no other redemption
has been made, and notice thereof
given, and the time for redemption
has expired, the last redemptioner is
entitled to the conveyance and
possession;
 but in all cases the judgment obligor
shall have the entire period of one
(1) year from the date of the
registration of the sale to redeem the
property.
 The deed shall be executed by the
officer making the sale or by his
successor in office, and in the latter
case shall have the same validity as
though the officer making the sale
had continued in office and
executed it.
 Upon the expiration of the right of
redemption, the purchaser or
redemptioner shall be substituted to
and acquire all the rights, title,
interest and claim of the judgment
obligor to the property as of the time
of the levy.
 The possession of the property shall
be given to the purchaser or last
redemptioner by the same officer
unless a third party IS ACTUALLY
HOLDING THE PROPERTY adversely
to the judgment obligor.
Page 67 of 370
REVIEWER IN REMEDIAL LAW
 Recovery of purchase price and revival
of judgment:
 When property liable to an
execution against several persons is
sold thereon, and
 more than a due proportion of the
judgment is satisfied out of the
proceeds of the sale of the property
of one of them, or
 one of them pays, without a sale,
more than his proportion,
 he may compel a contribution from
the others;
 and when a 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 his
property or before sale,
 he may compel repayment from the
principal. [Section 35, Rule 39].
G. Remedies of Judgment Creditor in
Aid of Execution (Sections 36-43)
(Asked in the 2008 Bar Exam
particularly steps to be taken if writ of
execution is unsatisfied)
 If the execution is returned unsatisfied,
he may cause the examination of the
judgment debtor as to his property and
income [section 36] (asked in the 2002
bar exam)
 He may cause examination of the debtor
of the judgment debtor as to any debt
owed by him or to any property of the
judgment debtor in his possession
[section 37].
 If after examination, the court finds the
property of the judgment debtor either
in his own hands or that of any person,
 the court may order the property
applied to the satisfaction of the
judgment.
 A party or other person may be
compelled by an order or subpoena to
attend before the court or commissioner
to testify as provided in sect 36-37.
 if the court finds the earnings of the
judgment debtor are more than
sufficient for his family’s needs, it
may order payment in installments
[section 40]
 the court may appoint a receiver for
the property of the judgment debtor
not exempt from execution or forbid
a transfer or disposition or
Part 2: Ordinary Civil Action
interference with such property
[section 41]
 if the court finds the judgment
CIVIL PROCEDURE
debtor had an ascertainable interest
in real property either as mortgagor,
mortgagee or otherwise, and his
interest can be ascertained without
controversy, the court may order a
sale of such interest [section 42].
 if the person alleged to have the
property of the judgment debtor or
be indebted to him, claims an
adverse interest in the property or
denies the debt,
 The court may authorize the judgment
creditor to institute an action to recover
the property, forbid its transfer and may
punish disobedience for contempt
[section 43]
H. Entry of Satisfaction
1. [SECTION 44, RULE 39]
 Satisfaction of a judgment shall be
entered by the clerk of court in the
court docket, and in the execution book,
 upon the return of a writ of
execution showing the full
satisfaction of the judgment, or
 upon the filing of an admission to
the satisfaction of the judgment
executed and acknowledged in the
same manner as a conveyance of
real property by the judgment
obligee or by his counsel
 unless a revocation of his authority
is filed, or upon the endorsement of
such admission by the judgment
obligee or his counsel, on the face of
the record of the judgment.
2. [SECTION 45, RULE 39]
 Whenever a judgment is satisfied in
fact, or otherwise than upon an
execution on demand of the judgment
obligor,
 the judgment obligee or his counsel
must execute and acknowledge, or
indorse an admission of the satisfaction
as provided in the last preceding
section,
 and after notice and upon motion the
court may order either the judgment
obligee or his counsel to do so, or may
order the entry of satisfaction to be
made without such admission.
Page 68 of 370
REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action

I. Effects of Judgments or Final BAR BY FORMER CONCLUSIVENESS

Orders JUDGMENT (RES OF JUDGMENT
JUDICATA)
There is identity of Identity of parties

CIVIL PROCEDURE
1. RES JUDICATA IN JUDGMENTS IN parties, subject and subject matter.
REM matter and causes
of action
Judgments or final Conclusive as to
The first judgment The first judgment
order
constitutes an is conclusive only as
Against a specific Title of the thing
absolute bar to all to matters directly
thing
matters directly adjudged and
Probate of a will or The will or
adjudged and those actually litigated in
administration of the administration.
that might have the first action.
estate of a deceased However, the probate
been adjudged. Second action can
person of a will or granting of
be prosecuted.
letters of
administration shall  Res Judicata vs. “law of the case”.
only be prima facie
 Law of the case refers to legal
evidence of the death
of the testator or conclusions announced on a first
intestate; appeal, whether on the general law
IN RESPECT TO THE Condition, status or or the law as applied to the concrete
PERSONAL, political, relationship of the facts,
or legal condition or person,  not only prescribes the duty and
status of a particular limit the power of the trial court to
person or his strict obedience and conformity
relationship to thereto,
another
 but they become and remain the law
of the case in all other steps
2. RES JUDICATA IN JUDGMENTS IN
whether in the lower court or in the
PERSONAM
appellate court on a subsequent
 In other cases, the judgment or final appeal [Zarate vs. Director of Lands].
order is, with respect to the matter
 Law of the case designates the principle
directly adjudged or as to any other
that if an appellate court has passed on
matter that could have been missed in
a legal question and remanded the case
relation thereto,
to the court below for further
 conclusive between the parties and their
proceedings, the legal question thus
successors in interest,
determined by the appellate court will
 by title subsequent to the
not be differently determined on a
commencement of the action or special
subsequent appeal in the same case
proceeding, litigating for the same thing
where the facts remain the same.
and under the same title and in the
 It is a doctrine which provides that an
same capacity.
appellate court’s determination on a
legal issue is binding on both the trial
3. CONCLUSIVENESS OF JUDGMENT/
court on remand and an appellate court
PRECLUSION OF ISSUES (AUTER
on a subsequent appeal given the same
ACTION PENDANT)
case and substantially the same facts.
 In any other litigation between the same  The doctrine of "law of the case" is one
parties or their successors in interest, of policy only and will be disregarded
that only is deemed to have been when compelling circumstances call for
adjudged in a former judgment or final a redetermination of the determination
order which appears upon its face to of point of law on prior appeal, and this
have been so adjudged, or which was is particularly true where intervening or
actually and necessarily included contemporaneous change in law has
therein or necessary thereto. occurred by overruling former decisions
or establishment of new precedent by
controlling authority.

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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
4. EFFECT OF FOREIGN JUDGMENTS XII. SUMMARY PROCEDURE
(Asked in the 2005 Bar Exam)
A. SCOPE
 In case of a judgment or final order

CIVIL PROCEDURE
B. DETERMINATION OF APPLICABILITY
upon a specific thing , the judgment or C. THE ONLY PLEADINGS ALLOWED
final order, is conclusive upon the title D. COURTY DUTY
to the thing (Rule 39, Sect. 48). E. ANSWER
F. EFFECT OF FAILURE TO ANSWER
 In case of a judgment or final order G. PRELIMINARY CONFERENCE
against a person, the judgment or final H. RECORD OF PRELIMINARY CONFERENCE
order is presumptive evidence of a right I. SUBMISSION OF AFFIDAVITS AND
as between the parties and their POSITION PAPERS
successors in interest by a subsequent J. RENDITION OF JUDGMENT
K. REFERRAL TO LUPON
title (Rule 39 Sect. 48).
L. PROHIBITED PLEADINGS AND MOTIONS
 In either case, the judgment or final M. AFFIDAVITS
N. APPEAL
order may be repelled by evidence of a
O. APPLICABILITY OF THE REGULAR RULES
want of jurisdiction, want of notice to
the party, collusion, fraud, or clear  1991 REVISED RULES ON SUMMARY
mistake of law or fact (Rule 39 Sect. 48). PROCEDURE
 Such limitation on the review of foreign A. Scope [SEC. 1]
judgment is adopted in all legal systems  This governs the summary procedure in
to avoid repetitive litigation on claims the MeTCs/MTCs/MCTCs in the
and issues, prevent harassment of the following cases falling within their
parties and avoid undue imposition on jurisdiction:
the courts. 1) All cases of forcible entry and
 This policy of preclusion rests on unlawful detainer, irrespective of the
principles of comity, utility and amount of damages or unpaid
convenience of nations. rentals sought to be recovered.
 As a generally accepted principle of Where attorney's fees are awarded,
international law, it is part of the law of the same shall not exceed P20K.
the Philippines by virtue of the 2) All other civil cases, except probate
Incorporation Clause (Section 2, Article proceedings, where the total amount
II) of the 1987 Constitution [Regalado]. of the plaintiff's claim does not
exceed P10K, exclusive of interest
and costs.

B. Determination of Applicability
[SEC. 2]
 Upon the filing of a civil action, the
court shall issue an order declaring
WON the case shall be governed by this
Rule.
 A patently erroneous determination to
avoid the application of the Rule is a
ground for disciplinary action.

C. The Only Pleadings Allowed

[SEC. 3]
1) Complaints;
2) Compulsory counterclaims and cross-
claims pleaded in the answer;
3) Answers thereto.
 All pleadings shall be verified.

D. Court Duty [SEC. 4]

 After the court determines that the case
falls under summary procedure, from
an examination of the allegations

Page 70 of 370
REVIEWER IN REMEDIAL LAW
therein and such evidence as may be
attached thereto, it may 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.
E. Answer [SEC. 5]
 Within 10 days from service of
summons, the defendant shall file his
answer to the complaint and serve a
copy thereof on the plaintiff.
 Affirmative and negative defenses not
pleaded therein shall be deemed waived,
 except for LOJ 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.
F. Effect of Failure to Answer [SEC. 6]
 The court shall render judgment as may
be warranted by the facts alleged in the
complaint and limited to what is prayed
for therein.
 However, the court may reduce the
amount of damages and attorney's fees
claimed for being excessive or otherwise
unconscionable.
 This is without prejudice to the
applicability of Rule 15, Sec. 4, ROC if
there are 2 or more defendants.
G. Preliminary Conference [SEC. 7]
 Not later than 30 days after the last
answer is filed, a preliminary conference
shall be held.
 The rules on pre-trial in ordinary cases
shall be applicable to the preliminary
conference unless inconsistent with the
provisions of this Rule.
 The failure of the plaintiff to appear in
the preliminary conference shall be 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 Sec. 6.
 All cross-claims shall be dismissed.
 If a sole defendant shall fail to appear,
the plaintiff shall be entitled to
judgment in accordance with Sec. 6.
 Exception: This Rule shall not apply
where one of 2 or more defendants sued
under a common cause of action who
Part 2: Ordinary Civil Action
had pleaded a common defense shall
appear at the preliminary conference.
CIVIL PROCEDURE
H. Record of Preliminary Conference
[SEC. 8]
 Within 5 days after the termination of
the preliminary conference, the court
shall issue an order stating the matters
taken up therein, including but not
limited to:
1) WON the parties have arrived at an
amicable settlement and the terms
thereof;
2) Stipulations or admissions entered
into by the parties;
3) WON based on the pleadings and
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
30 days from issuance of the order;
4) A clear specification of material facts
which remain controverted;
5) Other matters intended to expedite
the disposition of the case.
I. Submission of Affidavits and
Position Papers [SEC. 9]
 Within 10 days from receipt of the
order, 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.
J. Rendition of Judgment [SEC. 10]
 Within 30 days after receipt of the last
affidavits and position papers, or the
expiration of the period for filing the
same, the court shall render judgment.
 However should the court find it
necessary to clarify certain material
facts, during the said period it may
issue an order specifying the matters to
be clarified, and require the parties to
submit affidavits or other evidence on
the said matters within 10 days from
receipt of said order.
 Judgment shall be rendered within 15
days after the receipt of the last
clarificatory affidavits, or the expiration
of the period for filing the same.
 The court shall not resort to the
clarificatory procedure to gain time for
the rendition of the judgment.
K. Referral to Lupon [SEC. 18]
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REVIEWER IN REMEDIAL LAW Part 2: Ordinary Civil Action
 Cases requiring referral to the Lupon for  Rule 70, Sec. 10 shall be deemed
conciliation under PD 1508 where there repealed.
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.
 Exception: Criminal cases where the
accused was arrested without a
warrant.
CIVIL PROCEDURE
O. Applicability of the Regular Rules
[SEC. 22]
 The regular procedure prescribed in the
ROC shall apply suppletorily.

L. Prohibited Pleadings and Motions

[SEC. 19]
 MTD the complaint or to quash the
complaint/information except on the
ground of LOJ over the subject matter,
or failure to comply with the preceding
section;
1. Motion for a BOP;
2. MNT/MFR of a judgment, or motion
for opening of trial;
3. Petition for relief from judgment;
4. Motion for extension of time to file
pleadings/affidavits;
5. Memoranda;
6. Petition for
certiorari/mandamus/prohibition
against any interlocutory order;
7. Motion to declare the defendant in
default;
8. Dilatory motions for postponement;
9. Reply;
10. 3rd party complaints;
11. Interventions.

M. Affidavits [SEC. 20]

 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.

N. Appeal [SEC. 21]

 The judgment or final order shall be
appealable to the RTC which shall
decide the same in accordance with Sec.
22, BP 129.
 The RTC decision 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.

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REVIEWER IN REMEDIAL LAW
Part 3:
Provisional Remedies
(In the 1999 Bar Exam alone, three
questions were asked in this area)
I. PRELIMINARY ATTACHMENT
II. PRELIMINARY INJUNCTION
III. TEMPORARY RESTRAINING ORDER
(TRO)
IV. RECEIVERSHIP
V. REPLEVIN
VI. SUPPORT PENDE LITE
DEFINITION
 Writs and processes available during
the pendency of the action which may
be resorted to by a litigant for the
preservation or protection of their rights
and interests therein pending rendition,
and for purposes of the ultimate effects,
of a final judgment in the case; also
known as ancillary or auxiliary
remedies.
 They are applied to a pending litigation,
for the purpose of securing the
judgment or preserving the status quo,
and in some cases after judgment, for
the purpose of preserving or disposing
of the subject matter. [Calo vs. Roldan,
1946]
 All inferior courts can grant appropriate
provisional remedies provided that the
main action is within their jurisdiction.
[B.P. 129]
 Orders granting or denying provisional
remedies are merely interlocutory and
cannot be the subject of an appeal.
They may however be challenged before
a superior court through a petition for
certiorari under Rule 65.
I. PRELIMINARY ATTACHMENT
(Asked in the 2002 Bar Exam)
A. DEFINITION
B. PURPOSES
C. GROUNDS
D. STAGES IN THE GRANT OF PRELIMINARY
ATTACHMENT
E. ISSUANCE AND CONTENTS OF ORDER OF
ATTACHMENT
F. CONTENTS OF AFFIDAVIT OF APPLICANT
G. CONDITION OF APPLICANT’S BOND
H. MANNER OF ATTACHING PROPERTY
I. EFFECTS OF ATTACHMENT
J. SALE OF ATTACHED PROPERTY
K. DISHCARGE OF ATTACHMENT
L. PROCEEDINGS WHERE ATTACHED
PROPERTY CLAIMED BY THIRD PERSON
Part 3: Provisional Remedies
M. RECOVERY UPON THE COUNTER-BOND
DSIPOSITION OF DEPOSIT/ ATTACHED
PROPERTY AFTER JUDMENT
N. IMPROPER IRREGULAR OR EXCESSIVE
CIVIL PROCEDURE
ATTACHMENT
A. Definition
 A provisional remedy issued upon order
of the court where an action is pending
to be levied upon the property or
properties of the defendant therein, the
same to be held thereafter by the sheriff
as security for the satisfaction of
whatever judgment might be secured in
said action by the attaching creditor
against the defendant. [Cuartero vs. CA,
1992]
B. Purposes
1. To seize the property of the debtor in
advance of final judgment and to hold it
for purposes of satisfying the said
judgment.
2. To enable the court to acquire
jurisdiction over the action by the
actual or constructive seizure of the
property in those instances where
personal service of summons on the
creditor cannot be effected. [Quasha vs.
Juan, 1982]
C. Grounds [Rule 57.1]
(Asked in 2001 and 2005)
1. Action for recovery of a specified
amount of money or damages EXCEPT
moral and exemplary, on a cause of
action against a party who is about to
depart from the Philippines with intent
to defraud his creditors;
2. Action for money or property embezzled
or fraudulently misapplied or converted
to his own use by a public officer, or an
officer of a corporation, or an attorney,
factor, broker, agent, or clerk, in the
course of his employment as such, or by
any other person in a fiduciary capacity,
or for a willful violation of duty;
3. Action to recover the possession of
property unjustly or fraudulently taken,
detained or converted, when the
property, or any part thereof, has been
concealed, removed, or disposed of to
prevent its being found or taken by the
applicant or an authorized person;
4. Action against a party who has been
guilty of a fraud in contracting the debt
or incurring the obligation upon which
Page 73 of 370
REVIEWER IN REMEDIAL LAW
the action is brought, or in the
performance thereof;
5. Action against a party who has removed
or disposed of his property, or is about
to do so, with intent to defraud his
creditors; or
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.
D. Stages in the Grant of Preliminary
Attachment
1. The court issues the order granting the
application
2. The writ of attachment issues pursuant
to the order granting the writ
3. The writ is implemented
 For the first two stages, jurisdiction over
the person of the defendant is NOT
necessary.
 However, once the implementation of
the writ commences, the court must
have acquired jurisdiction over the
defendant. [Cuartero, supra]
E. Issuance and Contents of Order of
Attachment [Rule 57.2]
 may be issued ex parte upon motion
with notice and hearing by the court in
which the action is pending, or by the
Court of Appeals or the Supreme Court.
 must require the sheriff of the court 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
applicant's demand
 EXCEPT if such party makes deposit
or gives bond in an amount equal to
that fixed in the order.
F. Contents of Affidavit of Applicant
[Rule 57.3]
1. a sufficient cause of action exists
2. the case is one of those mentioned in
sec. 1 (grounds)
3. there is no other sufficient security for
the claim sought to be enforced by the
action
4. the amount due to the applicant or the
value of the property the possession of
which he is entitled to recover, is as
much as the sum for which the order is
granted above all legal counterclaims.
Part 3: Provisional Remedies
 The affidavit and the bond must be filed
with the court before the order issues.
CIVIL PROCEDURE
G. Condition of Applicant's Bond
[Rule 57.4]
 Applicant must give a bond executed to
the adverse party in the amount fixed
by the court in its order granting the
issuance of the writ conditioned that
the applicant will pay:
1. all the costs which may be adjudged
to the adverse party and
2. all damages which the adverse party
may sustain by reason of the
attachment if the court shall finally
adjudge that the applicant was not
entitled thereto.
H. Manner of Attaching Property
[Rule 57.5]
 The sheriff enforcing the writ shall
attach only so much of the property in
the Philippines of the adverse party not
exempt from execution as may be
sufficient to satisfy the applicant’s
demand.
 The levy on attachment shall be
preceded or contemporaneously
accompanied by service on the
defendant within the Philippines of:
1. summons
2. copy of complaint
3. application for attachment
4. affidavit and bond of applicant
5. order and writ of attachment.
 EXCEPT if:
1. Summons could not be served
personally or by substituted service
despite diligent efforts, or
2. Defendant is a resident of the
Philippines temporarily absent
therefrom, or
3. Defendant is a non-resident, or
4. The action is in rem or quasi in rem.
 Manner of attachment of real and
personal property [Rule 57.7]:
1. Real property, or growing crops
thereon, or any interest therein
 by filing with the registry of deeds a
copy of the order, together with a
description of the property attached,
and a notice that it is attached, or
that such real property and any
interest therein held by or standing
in the name of such other person
are attached,
 and by leaving a copy of such order,
description, and notice with the
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REVIEWER IN REMEDIAL LAW
occupant of the property, if any, or
with such other person or his agent
if found within the province.
 Where the property has been
brought under the operation of
either the Land Registration Act or
the Property Registration Decree,
the notice shall contain a reference
to the number of the certificate of
title, the volume and page in the
registration book where the
certificate is registered, and the
registered owner or owners thereof.
2. Personal property capable of
manual delivery - by taking and
safely keeping it in the sheriff’s
custody, after issuing the
corresponding receipt therefor;
3. Stocks or shares, or an interest in
stocks or shares, of any
corporation or company - by
leaving with the president or
managing agent thereof, a copy of
the writ, and a notice stating that
the stock or interest of the party
against whom the attachment is
issued is attached in pursuance of
such writ;
4. Debts and credits, including bank
deposits, financial interest,
royalties, commissions, and other
personal property not capable of
manual delivery –
 by leaving with the person owing
such debts, or having in his
possession or under his control,
such credits or other personal
property, or with his agent, a copy of
the writ,
 and notice that the debts owing by
him to the party against whom
attachment is issued, and the
credits and other personal property
in his possession, or under his
control, belonging to said party, are
attached in pursuance of such writ;
5. Interest of the party whom
attachment is issued in property
belonging to the estate of the
decedent –
 by serving the executor or
administrator or other personal
representative of the decedent with
a copy of the writ and notice that
said interest is attached.
 A copy of said writ of attachment
and of said notice shall also be filed
in the office of the clerk of the court
in which said estate is being settled
Part 3: Provisional Remedies
and served upon the heir, legatee or
devisee concerned.
 If the property sought to be attached is
CIVIL PROCEDURE
in custodia legis, a copy of the writ of
attachment shall be filed with the
proper court or quasi-judicial agency,
and notice of the attachment served
upon the custodian of such property.
 After enforcing the writ, the sheriff must
make a return thereon to the court from
which the writ issued, with a full
statement of his proceedings under the
writ and a complete inventory of the
property attached, together with any
counter-bond given by the party against
whom attachment is issued, and serve
copies thereof on the applicant. [Rule
57.6]
I. Effects of Attachment
1. ATTACHMENT OF DEBTS, CREDITS
AND ALL OTHER SIMILAR PERSONAL
PROPERTY [RULE 57.8] –
 All persons having in their possession
or under their control any credits or
other similar personal property
belonging to the adverse party, or owing
any debts to him, at the time of service
upon them of the copy of the writ of
attachment and
 notice shall be liable to the applicant for
the amount of such credits, debts or
other similar personal property, until
the attachment is discharged, or any
judgment recovered by him is satisfied,
unless such property is delivered or
transferred, or such debts are paid, to
the clerk, sheriff, or other proper officer
of the court issuing the attachment.
 Garnishment - a species of attachment
for reaching the property or credits
pertaining or payable to a judgment
debtor (asked in the 1999 Bar Exams in
comparison with Attachment)
 Service of summons upon the garnishee
is not necessary. All that is necessary is
the service upon him of the writ of
garnishment, as a consequence of
which he becomes a virtual party or a
forced intervenor in the case. [Perla
Compania v. Ramolete, 1991]
2. ATTACHMENT OF INTEREST IN
PROPERTY BELONGING TO THE
ESTATE OF A DECEDENT [RULE 57.9]
–
 The attachment of the interest of an
heir, legatee, or devisee in the property
belonging to the estate of a decedent
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REVIEWER IN REMEDIAL LAW
shall not impair the power of the
executor, administrator, or other
personal representative of the decedent
over such property for the purpose of
administration.
 Such personal representative, however,
shall report the attachment to the court
when any petition for distribution is
filed, and in the order made upon such
petition, distribution may be awarded to
such heir, legatee, or devisee, but the
property attached shall be ordered
delivered to the sheriff making the levy,
subject to the claim of such heir,
legatee, or devisee, or any person
claiming under him.
J. Sale of Attached Property
 Whenever it shall be made to appear to
the court in which the action is
pending, upon hearing with notice to
both parties, that
 (1) the party attached is perishable,
or that
 (2) the interests of all the parties to
the action will be will be subserved
by the sale thereof, the court may
order such property to be sold at
public auction in such manner as it
may direct, and the proceeds of
such sale to be deposited in court to
abide the judgment in the action.
[Rule 57.11]
K. Discharge of Attachment
 After a writ of attachment has been
enforced, the party whose property has
been attached, or the person appearing
on his behalf, may move for the
discharge of the attachment wholly or in
part on the security given.
 Grounds for discharge:
1. Debtor has posted a counter-bond or
has made the requisite cash deposit
[Rule 57.12];
2. Attachment was improperly or
irregularly issued [Rule 57.13] as
where there is no ground for
attachment, or affidavit and/or
bond filed therefore are defective or
insufficient;
3. Attachment is excessive but the
discharge shall be limited to the
excess [Rule 57.13];
4. Property attached is exempt from
execution [Rules 57.2 and 57.5];
5. Judgment is rendered against the
attaching creditor [Rule 57.19].
Part 3: Provisional Remedies
L. Proceedings Where Attached
Property Claimed By Third Person
[Rule 57.14]
CIVIL PROCEDURE
 The same procedure as Rule 39.16
(execution).
M. Recovery Upon the Counter-Bond;
Disposition of Deposit/ Attached
Property After Judgment
 When the judgment has become
executory, the surety or sureties on any
counter-bond given to secure the
payment of the judgment shall become
charged on such counter-bond and
bound to pay the judgment obligee
upon demand the amount due under
the judgment, which amount may be
recovered from such surety or sureties
after notice and summary hearing in
the same action. [Rule 57.17]
 Where the party against whom
attachment had been issued has
deposited money instead of giving
counter-bond, it shall be applied under
the direction of the court to the
satisfaction of any judgment rendered
in favor of the attaching party, and after
satisfying the judgment the balance
shall be refunded to the depositor or his
assignee.
 If the judgment is in favor of the party
against whom attachment was issued,
the whole sum deposited must be
refunded to him or his assignee. [Rule
57.18]
 If judgment be rendered against the
attaching party, all the proceeds of sales
and money collected or received by the
sheriff, under the order of attachment,
and all property attached remaining in
any such officer's hands, shall be
delivered to the party against whom
attachment was issued, and the order of
attachment discharged. [Rule 57.19]
N. Improper, Irregular or Excessive
Attachment
(Asked in the 2008 bar exam)
 An application for damages must be
filed before the trial, or before appeal is
perfected, or before the judgment
becomes executory.
 Such damages may be awarded only
after hearing and shall be included in
the judgment on the main case. [Rule
57.20]
 Procedure for claiming damages is
EXCLUSIVE. Such claims for damages
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REVIEWER IN REMEDIAL LAW Part 3: Provisional Remedies
cannot be the subject of an independent 5. Against consummated acts. (PNB vs
action. Adi; Rivera v. Florendo, 1986;
 EXCEPTIONS: Ramos, Sr. v. CA, 1989; Zabal vs CA)

CIVIL PROCEDURE
1. Where the principal case was  EXCEPTION: If the act is of
dismissed for lack of jurisdiction by continuing nature and in
the trial court without giving derogation of plaintiff’s right at
opportunity to the party whose the outset.
property was attached to apply for 6. Against disposing of the case on the
and prove his claim; and merits (Ortigas and Company
2. Where the damages by reason of the Limited Partnership vs CA, 1988)
attachment was sustained by a third 7. To stop the execution of judgment
person who was not a party to the where the judgment was already
action wherein such writ was executed. (Meneses vs Dinglasan)
issued. [Santos v. CA, 95 Phil 360] 8. But where the lower court enforced
its judgment before a party against
whom the execution was enforced
II. PRELIMINARY INJUNCTION could elevate her appeal in an
injunction suit, which was
A. DEFINITION instituted to prevent said execution,
B. PURPOSE an independent petition for
C. GROUNDS injunction in the Court of Appeals is
D. REQUIREMENTS justified. (Manila Surety and Fidelity
E. RULE 58 PROVIDES FOR BOTH A MAIN vs Teodoro, 1967)
ACTION FOR INJUNCTION AND AN
9. The CFI has no power to issue a writ
ANCILLARY WRIT OF PRELIMINARY
INJUNCTION of injunction against the Register of
Deeds if its effect is to render
nugatory a writ of execution issued
A. Definition
by the National Labor Relations
Commission. (Ambrosio vs Salvador,
 An order granted by the court where the
1978)
action/proceeding is pending at any
10. Transfer of possession of property to
stage of an action/proceeding prior to
party with disputed legal title via
the judgment requiring a party or a
preliminary injunction
court, agency or a person to refrain
from a particular act or acts
 EXCEPTIONS:
(“preliminary preventive injunction”).
a) Forcible entry and unlawful detainer
[Rule 58.1 and 58.2](asked in the 2001,
cases in which the court may issue
2002, 2005 Bar Exams)
preliminary mandatory injunction
[Rule 70.15]
 When preventive injunction does not lie:
b) Property covered by Torrens Title
1. To restrain collection of taxes (Valley
when there is a clear finding of
Trading vs CA), except where there
ownership and possession of the
are special circumstances that bear
land. (GSIS vs Florendo)
the existence of irreparable injury.
(Churchill & Tait vs Rafferty, 1915)
 “Preliminary mandatory injunction” -
2. To restrain the sale of conjugal
requires the performance of a particular
properties where the claim can be
act or acts. [Rule 58.1]
annotated on the title as a lien, such
as the husband’s obligation to give
 Requisites of mandatory injunction:
support. (Saavedra vs Estrada,
1. Invasion of the right is material and
1931)
substantial
3. To restrain a mayor proclaimed as
2. Right of the complainant is clear
duly elected from assuming his
and unmistakable
office. (Cereno vs Dictado, 1988)
3. Urgent and paramount necessity for
4. To restrain registered owners of the
the writ to prevent serious damages
property from selling, disposing and
[Bautista v. Barcelona, 100 Phil
encumbering their property just
1078]
because the respondents had
4. The effect would not be to create a
executed Deeds of Assignment in
new relation between the parties
favor of petitioner. (Tayag vs.
[Alvaro v. Zapata, 1982]
Lacson, 2004)

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REVIEWER IN REMEDIAL LAW Part 3: Provisional Remedies
 Mandatory injunction does not lie in the D. Requirements
following instances: (Asked in the 2006 Bar Exam)
1. to compel cohabitation [Arroyo v.

CIVIL PROCEDURE
Vasquez,1921] 1) The application for injunction must be
2. cancellation of attachment [Levy verified, and must show facts entitling
Hermanos v. Lacson, 1940] the applicant to the relief demanded;
3. release imported goods pending 2) Unless exempted by the court, the
hearing before the Commissioner of applicant must file with the court where
Customs. [Commissioner of Customs the action/proceeding is pending a
v. Cloribel, 1967] bond executed to the party or person
4. to take property out of the enjoined, in an amount to be fixed by
possession or control of one party the court. [Rule 58.4]
and place it into that of another (asked in the 2006 Bar exam)
whose title has not clearly been 3) Hearing and prior notice to the
established [Pio v. Marcos, 1974] party/person sought to be enjoined.
 EXCEPTIONS:
INJUNCTION PROHIBITION a) Great or irreparable injury would
Generally directed Directed against a result to the applicant before the
against a party in the court/tribunal/person matter can be heard on notice.
action exercising judicial i) The court may issue a TRO
powers
effective for 20 days from service
Does not involve the may be on the ground
court’s jurisdiction that the court against on the party sought to be
whom the writ is enjoined.
sought acted ii) Injury is “irreparable” if it is of
without/in excess of such constant and frequent
jurisdiction recurrence that no fair or
May be the main Always a main action reasonable redress can be had
action itself, or just a therefore in court of law or
provisional remedy in where there is no standard by
the main action
which their amount can be
measured with reasonable
B. Purpose accuracy.
b) Matter is of extreme urgency and
 To prevent future injury and maintain the applicant will suffer grave
the status quo (i.e. the last actual, injustice and irreparable injury
peaceable, uncontested status which i) Judge may issue ex parte a TRO
preceded the pending controversy.) effective for 72 hours from
[Kencht vs CA, 1993] issuance.
ii) Within 72 hours, judge shall
C. Grounds conduct a summary hearing to
(Asked in the 2006 Bar Exam) determine whether the TRO shall
be extended until the application
1. Applicant is entitled to the relief for preliminary injunction can be
demanded, and the relief consists in heard.
restraining the commission or iii) Maximum period of effectivity of
continuance of the acts or acts TRO=20 days.
complained of, or in requiring  If the application for preliminary
performance of an act or acts; injunction is denied or not resolved
2. Commission, continuance or non- within the said period, the TRO is
performance of the acts complained of deemed automatically vacated.
during the litigation would probably  The effectivity of a TRO is not
work injustice to the applicant; or extendible and no court shall have
3. A party, court, agency or a person is authority to extend or renew the
doing, threatening, or is attempting to same on the same ground for which
do, or is procuring or suffering to be it was issued.
done, some act or acts probably in  However, if issued by the Court of
violation of the rights of the applicant Appeals or a member thereof, the
respecting the subject of the action or TRO shall be effective for 60 days
proceeding, and tending to render the from service on the party or person
judgment ineffectual. [Rule 58.3] sought to be enjoined.

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REVIEWER IN REMEDIAL LAW
 A TRO issued by the Supreme Court
or a member thereof shall be
effective until further orders. [Rule
58.5]
E. Rule 58 Provides for both a Main
Action for Injunction and an
Ancillary Writ of Preliminary
Injunction (Asked In The 2006 Bar
Exam)
 By their very definitions, the action for
injunction is distinct from the ancillary
remedy of preliminary injunction which
cannot exist except only as part or an
incident of an independent action or
proceeding.
 As a matter of course, in an action for
injunction, the auxiliary remedy of
preliminary injunction, whether
prohibitory or mandatory, may issue.
 Under the present state of the law, the
main action of injunction seeks a
judgment embodying a final injunction
which is distinct from, and should not
be confused with the provisional remedy
of preliminary injunction, the sole
object of which is to preserve the status
quo until the merits can be heard
(Urbanes vs. CA, 2001).
 A writ of preliminary injunction is
generally based solely on initial and
incomplete evidence.
 The evidence submitted during the
hearing on an application for a writ of
preliminary injunction is not conclusive
or complete for only a “sampling” is
needed to give the trial court an idea of
the justification for the preliminary
injunction pending the decision of the
case on the merits.
 There are vital facts that have yet to be
presented during the trial which may
not be obtained or presented during the
hearing on the application for the
injunctive writ. The trial court needs to
conduct substantial proceedings in
order to put the main controversy to
rest.
 It does not necessarily proceed that
when a writ of preliminary injunction is
issued, a final injunction will follow
(Urbanes vs. CA, ibid)
Part 3: Provisional Remedies
III.TEMPORARY RESTRAINING
ORDER (TRO)
CIVIL PROCEDURE
A. STATUS QUO ORDER VS. INJUNCTION
B. OBJECTION TO/MOTION FOR
DISSOLUTION OF INJUNCTION/
RESTRAINING ORDER
C. GLOBAL INJUNCTION OF A FOREIGN
COURT
 TRO vs. Injunction. A TRO is intended as
a restraint upon the defendant until the
propriety of granting an injunction
pendente lite can be determined, and it
goes no further than to preserve the
status quo until such determination.
[Anglo-Fil Trading v. Lazaro, 1983]
 Same requirements for application as
preliminary injunction.
 An application for a TRO shall be acted
upon only after all parties are heard in
a summary hearing, which shall be
conducted within 24 hours after the
sheriff's return of service and/or the
records are received by the branch
selected by raffle. [Rule 58.4]
A. Status Quo Order vs. Injunction
(Asked in the 2006 bar exams)
 There have been instances when the
Supreme Court has issued a status quo
order which, as the very term connotes,
is merely intended to maintain the
last, actual, peaceable and
uncontested state of things which
preceded the controversy.
 This was resorted to when the projected
proceedings in the case made the
conservation of the status quo desirable
or essential, but the affected party
neither sought such relief nor did the
allegations in his pleading sufficiently
make out a case for a temporary
restraining order.
 The status quo order was thus issued
motu propio on equitable considerations.
 Also, unlike a temporary restraining
order or a preliminary injunction, a
status quo order is more in the nature of
a cease and desist order, since it does
not direct the doing or undoing of acts
as in the case of prohibitory or
mandatory injunctive relief.
 The further distinction is provided by
the present amendment in the sense
that, unlike the amended rule on
restraining orders, a status quo order
does not require the posting of a bond.
(AF Development Corp vs. Judge Cajigal,
CA decision citing Justice Regalado)”
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REVIEWER IN REMEDIAL LAW
B. Objection to/Motion for
Dissolution of Injunction/
Restraining Order
 Grounds:
1. Insufficiency of application
2. other grounds (e.g. applicant’s bond
is insufficient/defective), upon
affidavits of the party or person
enjoined
3. if it appears after hearing that
although the applicant is entitled to
the injunction or restraining order,
the issuance or continuance thereof
would cause irreparable damage to
the party/person enjoined, while the
applicant can be fully compensated
for such damages as he may suffer,
provided the former files a bond
 If it appears that the extent of the
preliminary injunction or restraining
order granted is too great, it may be
modified. [Rule 58.6]
C. Global Injunction of a Foreign
Court (Asked in the 2007 Bar Exam)
 A global injunction issued by a foreign
court to prevent dissipation of funds
against the defendant who has assets in
the Philippines may be enforced in our
jurisdiction, subject to our procedural
laws (Suggested Answers to the 2007
Bar Exam, UP Law Center)
 As a general rule, no sovereign is bound
to give effect within its dominion to a
judgment or order of a tribunal of
another country.
 However, under the rules of comity,
utility and convenience, nations have
established a usage among civilized
states by which final judgments of
foreign courts of competent jurisdiction
are reciprocally respected and rendered
efficacious under certain conditions
that may vary in different countries. (St.
Aviation Services vs. Grand International
Airways, 2006)
Note: In Pangalangan and Coquia’s book on
Conflict of Laws (2000),citing Cheshire, state
that an interlocutory or provisional judgment
of a foreign court, creates no obligation on
the forum court to enforce it (p. 545).
Part 3: Provisional Remedies
IV. RECEIVERSHIP
(Asked in the 2001 Bar Exam)
CIVIL PROCEDURE
A. NATURE
B. APPOINTMENT OF RECEIVER
A. Nature
 A receiver is a person appointed by the
court in behalf of all the parties to the
action for the purpose of preserving and
conserving the property in litigation and
prevent its possible destruction or
dissipation, if it were left in the
possession of any of the parties.
 The appointment of a receiver is not a
matter of absolute right. It depends
upon the sound discretion of the court
and is based on facts and
circumstances of each particular case.
 The guiding principle is the prevention
of imminent danger to the property. If
an action by its nature, does not require
such protection or preservation, said
remedy cannot be applied for and
granted. (Commodities Storage v. CA,
1997)
 Receivership is aimed at the
preservation of, and at making more
secure, existing rights; it cannot be
used as an instrument for the
destruction of those rights. (Arranza v.
B.F. Homes, 2000)
B. Appointment of Receiver
1. REQUIREMENTS:
a. verified application [Rule 59.1]
b. bond [Rule 59.2 and 59.5]
2. WHO APPOINTS:
a. court where the action is pending
b. CA
c. SC
d. During the pendency of an appeal,
the appellate court may allow an
application for the appointment of a
receiver to be filed in and decided by
the court of origin. [Rule 59.1]
3. WHEN RECEIVER CAN BE APPOINTED:
 When it appears from the verified
application and other proof that the
applicant has an interest in the
property or fund which is the subject of
the action or proceeding, and that such
property or fund is in danger of being
lost, removed, or materially injured
unless a receiver be appointed to
administer and preserve it;
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REVIEWER IN REMEDIAL LAW
 When it appears in an action by the
mortgagee for the foreclosure of a
mortgage that the property is in danger
of being wasted or dissipated or
materially injured, and that its value is
probably insufficient to discharge the
mortgage debt, or that the parties have
so stipulated in the contract of
mortgage;
 After judgment, to preserve the property
during the pendency of an appeal, or to
dispose of it according to the judgment,
or to aid execution when the execution
has been returned unsatisfied or the
judgment obligor refuses to apply his
property in satisfaction of the judgment,
or otherwise to carry the judgment into
effect;
 Whenever in other cases it appears that
the appointment of a receiver is the
most convenient and feasible means of
preserving, administering, or disposing
of the property in litigation. [Rule 59.1]
4. SPECIFIC SITUATIONS WHEN A b. Take and keep possession of the
RECEIVER MAY BE APPOINTED
a. If a spouse without just cause
abandons the other or fails to
comply with his/her obligations to
the family, the aggrieved spouse
may petition the court for
receivership. [Family Code, Article
101]
b. The court may appoint a receiver of
the property of the judgment obligor;
and it may also forbid a transfer or
other disposition of, or any
interference with, the property of the
judgment obligor not exempt from
execution. [Rule 39.41]
c. After the perfection of an appeal, the
trial court retains jurisdiction to
appoint a receiver of the property
under litigation since this matter
does not touch upon the subject of
the appeal. [Rule 41.9; Acuña v.
Caluag, 1957]
d. After final judgment, a receiver may
be appointed as an aid to the
execution of judgment. (Philippine
Trust Company v. Santamaria, 1929)
e. Appointment of a receiver over the
property in custodia legis may be
allowed when it is justified by
special circumstances, as when it is
reasonably necessary to secure and
protect the rights of the real owner.
(Dolar v. Sundiam, 1971)
Part 3: Provisional Remedies
 The general rule is that neither party to
the litigation should be appointed as a
receiver without the consent of the
CIVIL PROCEDURE
other because a receiver is supposed to
be an impartial and disinterested
person. (Alcantara v. Abbas, 1963)
 A clerk of court should not be appointed
as a receiver as he is already burdened
with his official duties. (Abrigo v.
Kayanan, 1983).
5. DENIAL OF APPLICATION OR
DISCHARGE OF RECEIVER
a. If the appointment sought or
granted is without sufficient cause
b. Adverse party files a sufficient bond
to answer for damages [Rule 59.3]
c. Bond posted by the applicant for
grant of receivership is insufficient
d. Bond of receiver is insufficient
6. GENERAL POWERS OF RECEIVER
a. Bring and defend in such capacity
actions in his own name with leave
of court
property in controversy
c. Receive rents
d. Collect debts due to himself as
receiver or to the fund, property,
estate, person, or corporation of
which he is the receiver
e. Compound for and compromise the
same
f. Make transfers
g. Pay outstanding debts
h. Divide the money and other property
that shall remain among the
persons legally entitled to receive
the same’
i. Generally, to do such acts
respecting the property as the court
may authorize
j. Invest funds in his hands, ONLY by
order of the court upon the written
consent of all the parties. [Rule 59.6]
7. LIABILITY FOR REFUSAL OR NEGLECT
TO DELIVER PROPERTY TO RECEIVER
a. Contempt
b. Be liable to the receiver for the
money or the value of the property
and other things so refused or
neglected to be surrendered together
with all damages that may have
been sustained by the party or
parties entitled thereto as a
consequence of such refusal or
neglect. [Rule 59.7]
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REVIEWER IN REMEDIAL LAW Part 3: Provisional Remedies
8. TERMINATION OF RECEIVERSHIP Fernandez, 1991)
 motu proprio or on motion of either and
party b. where there is
reason to believe

CIVIL PROCEDURE
 when court determines that the
that the seizure
necessity for a receiver no longer exists
will not anymore
 requires notice to all interested parties be followed by the
and hearing [Rule 59.8] filing of the
criminal action in
V. REPLEVIN court or there are
(Asked in the 1999 Bar Exam) conflicting claims.
(Chua v. CA, 1993)
A. NATURE
B. REQUIREMENTS B. Requirements
C. ORDER OF REPLEVIN
D. DISPOSITION OF PROPERTY BY SHERIFF a. Application
E. WHERE PROPERTY CLAIMED BY THIRD
 Who may apply: party praying for the
PERSON
recovery of possession of personal
property. [Rule 60.1]
A. Nature  When:
 (1) at the commencement of the
1. AVAILABLE WHERE THE PRINCIPAL
action or
ACTION IS TO RECOVER POSSESSION
 (2) before the answer [unlike
OF PERSONAL PROPERTY.
attachment, injunction and support
pendent elite (anytime before final
REPLEVIN PRELIMINARY
ATTACHMENT judgment) and receivership (anytime
Available only where Available even if the even after final judgment)].
the principal relief recovery of personal  The applicant must show by his own
sought in the action is property is only an affidavit or that of some other person
recovery of personal incidental relief who personally knows the facts:
property, the other sought in the action.  That the applicant is the owner of
reliefs (e.g. damages) the property claimed, particularly
being merely describing it, or is entitled to the
incidental thereto.
possession thereof;
Can be sought only May be resorted to
where the defendant even if the personalty  That the property is wrongfully
is in actual or is in the custody of a detained by the adverse party,
constructive third person. alleging the cause of detention
possession of the thereof according to the best of his
personalty involved. knowledge, information, and belief;
Extends only to Extends to all kinds of  That the property has not been
personal property property, whether distrained or taken for a tax
capable of manual real, personal or
assessment or a fine pursuant to
delivery. incorporeal.
law, or seized under a writ of
Available to recover To recover the
personal property possession of personal execution or preliminary
even if the same is not property unjustly attachment, or otherwise placed
concealed, removed or detained (presupposed under custodia legis, or if so seized,
disposed of. that the same is being that it is exempt from such seizure
concealed, removed or or custody; and
disposed of to prevent  The actual market value of the
its being found or property. [Rule 60.2]
taken by the
applicant.
b. Bond
Cannot be availed of if Can still be resorted
the property is in to even if the property  The applicant must also give a bond,
custodia legis (e.g. is in custodia legis. executed to the adverse party in double
under attachment, the value of the property as stated in
seized under a search the affidavit. [Rule 60.2]
warrant).
EXCEPT: C. Order of Replevin
a. when the seizure
is illegal;
(Bagalihog v.  Upon the filing of affidavit and approval
of the bond, the court shall issue an

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REVIEWER IN REMEDIAL LAW
order and the corresponding writ of
replevin describing the personal
property alleged to be wrongfully
detained and requiring the sheriff
forthwith to take such property into his
custody. [Rule 60.3]
 A writ of replevin may be served
anywhere in the Philippines.
D. Disposition of Property by Sheriff
 The sheriff shall retain the property for
5 days. The adverse party may object to
the sufficiency of the bond or surety or
he may file a redelivery bond.
 After 5 days and the adverse party failed
to object or his redelivery bond is
insufficient, the sheriff shall deliver the
property to the applicant. [Rule 60.6]
 The defendant is entitled to the return
of the property under a writ of replevin
if:
a. He seasonably posts a redelivery
bond [Rule 60.5]
b. Plaintiff’s bond is found to be
insufficient or defective and is not
replaced with proper bond
c. Property is not delivered to the
plaintiff for any reason [Rule 60.6]
E. Where Property Claimed by Third
Person
 The same procedure as Rules 39.16
(execution) and 57.14 (preliminary
attachment).
Part 3: Provisional Remedies
VI. SUPPORT PENDENTE LITE
A. NATURE
CIVIL PROCEDURE
B. REQUIREMENTS
C. VERIFIED COMMENT
D. HEARING
E. ORDER OF SUPPORT
F. REMEDIES OF A PARTY WHO WAS
ERRONEOUSLY COMPELLED TO GIVE
SUPPORT
A. Nature
(Asked in 1999 and 2001 bar exams)
1. SUPPORT PENDENTE LITE CAN BE
GRANTED BY THE COURT IN TWO (2)
INSTANCES:
 Civil action for support; and
 criminal action where civil liability
includes support for the offspring as a
consequence of the crime.
 Where the right to support is put in
issue by the pleadings or the fact from
which the right to support arises is in
controversy or has not been established,
the court cannot grant support
pendente lite (Francisco v. Zandueta,
1929)
 Judgment for support does not become
final.
 The right to support is of such nature
that its allowance is essentially
provisional; for during the entire period
that a needy party is entitled to
support, his or her alimony may be
modified or altered, in accordance with
his increased or decreased needs, and
with the means of the giver. It cannot be
regarded as subject to final
determination. (Lam v. Chua, 2004)
B. Requirements
1. VERIFIED APPLICATION [RULE 61.1]
 Who may apply: any party
 When: (1) at the commencement of the
proper action or proceeding, or (2) at
any time prior to the judgment or final
order
 Contents:
 Grounds for the claim
 Financial conditions of both parties
 Affidavits, depositions or other
authentic documents in support
thereof.
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REVIEWER IN REMEDIAL LAW Part 3: Provisional Remedies

C. Verified Comment [RULE 61.2]

 A copy of the application and all
supporting documents shall be served

CIVIL PROCEDURE
upon the adverse party, who shall have
5 days to comment thereon, unless a
different period is fixed by the court
upon his motion.

D. Hearing [RULE 61.3]

 Within 3 days after the comment is filed
or after the expiration of the period for
its filing.

E. Order of Support
 If the application is granted, the court
shall fix the amount of money to be
provisionally paid or such other forms
of support as should be provided, taking
into account the necessities of the
applicant and the resources or means of
the adverse party, and the terms of
payment or mode for providing the
support.
 If the application is denied, the
principal case shall be tried and decided
as early as possible. [Rule 61.4]
 If the adverse party fails to comply with
an order granting support pendente lite,
the court shall, motu proprio or upon
motion, issue an order of execution
against him, without prejudice to his
liability for contempt.
 When the person ordered to give
support pendente lite refuses or fails to
do so, any third person who furnished
that support to the applicant may, after
due notice and hearing in the same
case, obtain a writ of execution to
enforce his right of reimbursement
against the person ordered to provide
such support. [Rule 61.5]

F. Remedies of a Party Who Was

Erroneously Compelled to Give
Support
 Apply for an order for such
reimbursement by the recipient on
motion in the trial court in the same
case, unless such restitution is already
included in the judgment, or
 Failing therein, file a separate action for
reimbursement against the person
legally obliged to give support. [Rule
61.7]

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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions

Part 4: 2. ejectment suits [Rule 70]

Special Civil Actions 3. contempt [Rule 71]

CIVIL PROCEDURE
I. INTERPLEADER
II. DECLARATORY RELIEF I. INTERPLEADER
III. REVIEW OF JUDGMENTS AND FINAL
ORDERS OR RESOLUTIONS OF THE A. DEFINITION
COMELEC AND COA B. PURPOSE
IV. CERTIORARI, PROHIBITION AND C. WHEN PROPER
MANDAMUS D. PROCEDURE
V. QUO WARRANTO
VI. EXPROPRIATION A. Definition
VII. FORECLOSURE OF REAL ESTATE
MORTGAGE
VIII. PARTITION
 A remedy whereby a person who has
IX. FORCIBLE ENTRY AND UNLAWFUL property in his possession or has an
DETAINER obligation to render wholly or partially,
X. CONTEMPT  without claiming any right in both,
 comes to court and asks that the
 Rules on ordinary civil actions shall defendants who have made conflicting
apply to special civil actions insofar as claims upon the same property or who
they are not inconsistent with or may consider themselves entitled to demand
supplement the rules governing the compliance with the obligation
latter. [Rule 1.3]  be required to litigate among themselves
in order to determine who is entitled to
 How commenced: the property or payment or the
1. COMPLAINT obligation [Beltran v. PHHC, 1969]
a. interpleader
b. expropriation B. Purpose
c. foreclosure of real estate
mortgage  To compel conflicting claimants to
d. partition interplead and litigate their several
e. forcible entry and unlawful claims among themselves. [Rule 62.1]
detainer  To protect a person against double
2. PETITION vexation in respect of one liability
a. declaratory relief [Beltran, supra]
b. review of adjudications of
Constitutional commissions C. When Proper
c. certiorari
d. prohibition  Whenever conflicting claims upon the
e. mandamus same subject matter are or may be
f. quo warranto made against a person who claims no
g. contempt interest in the subject matter or an
interest which is not disputed by the
 Venue is governed by the general rules claimants. [Rule 62.1]
on venue, except as otherwise indicated  Cannot be availed of to resolve the issue
in the particular rules for special civil of breach of undertakings made by
actions. defendants, which should be resolved in
an ordinary action for specific
 Writs of injunction, mandamus, performance or other relief [Beltran,
certiorari, prohibition, quo warranto supra].
and habeas corpus issued by RTCs are
enforceable within their respective
judicial regions. [B.P. 129]
D. Procedure

 3 special civil actions within the
jurisdiction of inferior courts:
1. interpleader, provided the amount
involved is within its jurisdiction
[Makati Development Corp. v.
Tanjuatco, 1969]
 Complaint filed by the person against
whom conflicting claims are or may be
made. [ibid]
 The docket and other lawful fees
paid by the complainant, and costs
and litigation expenses shall
constitute a lien or charge upon the

Page 85 of 370
REVIEWER IN REMEDIAL LAW
subject matter of the action, unless
otherwise ordered by the court.
[R62.7]
 Court order requiring the conflicting
claimants to interplead with one
another. If the interests of justice so
require, the court may direct that the
subject matter be paid or delivered to
the court. [Rule 62.2]
 Summons, copy of complaint and order
served upon the conflicting claimants.
[Rule 62.3]
 Each claimant shall file his answer
within 15 days from service of the
summons, serving a copy thereof upon
each of the other conflicting claimants,
who may file their reply thereto.
a) If claimant fails to plead within the
time herein fixed, the court may, on
motion, declare him in default and
render judgment barring him from
any claim in respect to the subject
matter.
b) Within the time for filing an answer,
each claimant may file a motion to
dismiss.
 Grounds:
a. impropriety of the interpleader
action, or
b. other appropriate grounds
specified in Rule 16.
 The period to file the answer shall
be tolled.
 If the motion is denied, an answer
may be filed within the remaining
period, in no case less than 5 days
(reckoned from notice of denial)
[Rule 62.4].
 The parties may file counterclaims,
cross-claims, third-party complaints
and responsive pleadings thereto. [Rule
62.5]
 Pre-trial
 Court shall determine conflicting
claimants’ respective rights and
adjudicate their several claims. [Rule
62.6]
Part 4: Special Civil Actions
II. DECLARATORY RELIEF
A. REQUISITES
CIVIL PROCEDURE
B. WHO MAY FILE
C. PARTIES
D. WHERE FILED
E. WHEN COURT MAY REFUSE TO
DECLARE RIGHTS/CONSTRUE
INSTRUMENTS
F. SIMILAR REMEDIES COVERED BY RULE
63
A. Requisites
a. subject matter of the controversy must
be a deed, will, contract or other written
instrument, statute, executive order or
regulation, or ordinance [Rule 63.1];
b. the terms of said documents and the
validity thereof are doubtful and require
judicial construction [Santos v. Aquino,
94 Phil 65]
c. no breach of the documents in
question. [Reparations Commission v.
Northern Lines, 1970] Otherwise, an
ordinary civil action is the remedy.
 Concept of a cause of action in
ordinary civil actions does not apply.
 If before the final termination of the
case, a breach or violation of an
instrument or a statute, etc. should
take place, the action may be
converted into an ordinary action.
[Rule 63.6]
d. actual justiciable controversy [Edades v.
Edades, 99 Phil 675]
e. adverse interests between the parties
 A declaratory relief is not available
for a declaration of citizenship (Villa-
Abrille vs. Republic, 1956) or
 the validity of a registration
certificate (Obiles vs. Republic, 1953)
as they are unilateral in nature and
without conflicting adverse
interests.
f. issue must be ripe for judicial
determination [Tolentino v. Board of
Accountancy, 90 Phil 83]
g. adequate relief is not available through
other means or other forms of action or
proceedings. [Ollada v. Central Bank,
1962]
 A court decision cannot be the
subject of a declaratory relief since
there exists other remedies, i.e.,
appeal or a motion for clarificatory
judgment (Tanda vs. Aldaya, 1956)
Page 86 of 370
REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions

B. Who May File E. When Court May Refuse to

Declare Rights/Construe
a. a person interested under a deed, will, Instruments

contract or other written instrument
b. a person whose rights are affected by a
statute, executive order or regulation,
ordinance or any other governmental
regulation [Rule 63.1]
C. Parties
CIVIL PROCEDURE
1. where a decision would not terminate
the uncertainty or controversy which
gave rise to the action, or
2. where the declaration or construction is
not necessary and proper under the
circumstances. [Rule 63.5]

 all persons who have or claim any F. Similar Remedies Covered by Rule
interest which would be affected by the 63
declaration [Rule 63.2]
 If action involves the validity of a 1. Action to quiet title (Arts. 476-481 Civil
statute/executive Code)
order/regulation/other governmental 2. Action for reformation of instrument
regulation, the Solicitor General shall be (Arts. 1359-1369 Civil Code)
notified. [Rule 63.3] 3. Action to consolidate ownership (Art.
 If action involves the validity of a local 1607 Civil Code) [Rule 63.1 par. 2]
government ordinance, the
prosecutor/attorney of the LGU involved
shall be notified. [Rule 63.4] III.REVIEW OF JUDGMENTS AND
FINAL ORDERS OR RESOLUTIONS
Subject Matter Notice Given To
Validity of a statute, EO Sol Gen OF THE COMELEC AND COA
or regulation, or any
governmental regulation A. SCOPE
Validity of a local Prosecutor or B. PROCEDURE
government ordinance attorney of the LGU
Constitutionality of a Sol Gen A. Scope
local government
ordinance  Applicable only to judgments and final
orders of the COMELEC and COA [Rule
 Non-joinder of interested persons is not 64.1]
a jurisdictional defect; but persons not  Judgments/orders of the Civil Service
joined shall not be prejudiced in their Commission are now reviewable by the
interests unless otherwise provided by Court of Appeals under Rule 43,
the Rules (R63.2; Baguio Citizens Action eliminating recourse to the Supreme
vs. CityCouncil of Baguio, 1983) Court (SC). [RA 7902; SC Revised
 third-party complaint not available in a Administrative Circular No. 1-95]
declaratory relief (Commission of  An aggrieved party may bring the
Customs vs. Cloribel, 1977); but a questioned judgment, etc. directly to the
compulsory counterclaim may be set up SC on certiorari under Rule 65. [Rule
(Visayan Packing vs. Reparations 64.2]
Commission, 1987) o such petition for certiorari shall not
stay the execution of the judgment,
D. Where Filed etc. sought to be reviewed unless
otherwise directed by the Supreme
 in the proper RTC [Rule 63.1] Court [Rule 64.8]
 not within the original jurisdiction of
the Supreme Court, even if pure B. Procedure
questions of law are involved.
[Remotigue vs. Osmeña, 1967] a. File petition for review.
 When [Rule 64.3]:
 Within 30 days from notice of
judgment/final order/resolution
sought to be reviewed
 Filing of motion for
reconsideration/new trial with

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REVIEWER IN REMEDIAL LAW
Constitutional commission
interrupts the 30-day period. If
motion is denied, aggrieved party
may file petition within remaining
period, which shall not be less than
5 days from notice of denial.
 Form [Rule 64.5]:
 verified and accompanied by
(annexes):
1) a clearly legible duplicate
original or certified true copy of
the subject judgment, etc.
2) certified true copies of such
material portions of the record
referred to in the petition
3) other documents relevant and
pertinent to the petition
4) proof of service of a copy of the
petition on the Commission and
the adverse party
5) proof of the timely payment of
the docket and other lawful fees
 18 legible copies (containing plain
copies of all documents attached to
the original copy of the petition)
 Contents [Rule 64.5]:
1) name of aggrieved party (petitioner)
2) respondents: Commission
concerned and person(s) interested
in sustaining the judgment a quo
3) facts
4) issues involved
5) grounds and brief arguments relied
upon for review
6) prayer for judgment annulling or
modifying the question judgment,
etc.
7) material dates showing that it was
filed on time
8) certification against non-forum
shopping
 Findings of fact of the Commission
supported by substantial evidence shall
be final and non-reviewable.
 Failure to comply with foregoing
requirements shall be sufficient ground
for dismissal.
Part 4: Special Civil Actions
b. Order to Comment [Rule 64.6]
 If the SC finds the petition sufficient in
CIVIL PROCEDURE
form and substance, it shall order the
respondents to file their comments on
the petition within 10 days from notice
thereof.
 Grounds for dismissal:
1) Petition not sufficient in form and
substance
2) Petition was filed manifestly for
delay
3) the questions raised are too
unsubstantial to warrant further
proceedings.
c. Comments of Respondents [Rule 64.7]
 Requirements:
 original copy with
1) certified true copies of such
material portions of the record
as are referred to in the
comment
2) certified true copies of other
supporting papers
 18 legible copies with plain copies of
all documents attached to the
original.
 a copy of the comment shall be served
on the petitioner.
d. Decision [Rule 64.9]
 Case is deemed submitted for decision
upon:
1) filing of the comments on the
petition, and such other pleadings
or papers as may be required or
allowed.
2) expiration of the period to file the
pleadings.
 EXCEPTIONS: SC sets case for oral
argument or requires parties to
submit memoranda,
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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions

IV. CERTIORARI, PROHIBITION AND MANDAMUS

Certiorari Prohibition Mandamus

(Asked in the 2000 and 2006 Bar
Exams)
 When any tribunal, board or
officer exercising judicial or
quasi-judicial functions has
acted:
 without or in excess of its
jurisdiction; or
 with grave abuse of
discretion amounting to
lack or excess of its or
his jurisdiction1
 AND there is no appeal, or
any plain, speedy, and
adequate remedy2 in the
ordinary course of law
(R65.1)
To correct an act performed by
the respondent
Discretionary acts
Aggrieved person
Those exercising judicial
quasi-judicial functions
CIVIL PROCEDURE
(Asked in the 2006 Bar Exam)
GROUNDS
 When the proceedings of any  When any tribunal,
tribunal, corporation, board, corporation, board, officer or
officer or person, whether person
exercising judicial, quasi-  unlawfully neglects the
judicial, or ministerial performance of an act
functions, are which the law specifically
 without or in excess of enjoins as a duty
its or his jurisdiction; or resulting from an office,
 with grave abuse of trust or station; or
discretion amounting to  unlawfully excludes
lack or excess of its or another from the use and
his jurisdiction enjoyment of a right or
office to which such other
 AND there is no appeal or is entitled
any other plain, speedy, and
adequate remedy in the  AND there is no other plain,
ordinary course of law speedy and adequate remedy
(R65.2) in the ordinary course of law
(R65.3)
PURPOSE
To prevent the commission or To compel the performance of the
carrying out of an act act desired
ACT SOUGHT TO BE CONTROLLED
Discretionary and ministerial Ministerial acts
acts
PETITIONER
Aggrieved person Aggrieved person
RESPONDENT3
or Those exercising judicial and/or Those exercising judicial and/or
non-judicial functions non-judicial functions

Without jurisdiction
Excess of jurisdiction
Grave abuse of discretion
If respondent do not have the legal power to determine the case
If respondent has the legal power to determine the case but oversteps such
power
If respondent has the legal power to determine the case but acts in a
capricious, whimsical, arbitrary or despotic manner in the exercise of his
judgment

2 A remedy is plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the
judgment and the acts of the lower court or agency. (Silvestre vs. Torres, 1946)

3 When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation,
board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or
respondents, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of
such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent
or respondents affected by the proceedings. xxx
If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal
parties. However, unless otherwise specifically directed by the court, they shall not appear or participate in the
proceedings therein. [Rule 65.5]

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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions
FORM OF PETITION
 verified  verified  verified
 alleging the facts with  alleging the facts with  alleging the facts with
certainty certainty certainty

CIVIL PROCEDURE
 PRAYER: that judgment be  PRAYER: that judgment be  PRAYER: that judgment be
rendered annulling / rendered commanding the rendered commanding the
modifying the proceedings of respondent to desist from respondent, immediately or
such tribunal, etc., and further proceedings in the some other time to be
granting such incidental action or matter specified specified by the court, to do
reliefs as law and justice therein, or otherwise the act required to be done to
may require. granting such incidental protect the rights of the
 accompanied by a certified reliefs as law and justice petitioner, and to pay the
true copy of the subject may require. damages sustained by the
judgment, etc., copies of all  accompanied by a certified petitioner by reason of the
relevant pleadings and true copy of the subject wrongful acts of the
documents, and a judgment, etc., copies of all respondent.
certification of non-forum relevant pleadings and  contains a certificate of non-
shopping. documents, and a forum shopping.
certification of non-forum
shopping.

 The original action of certiorari not a
substitute for appeal (Lobite vs.
Sundiam 1983).
Exceptions:
a. the appeal is not a speedy and
adequate remedy (Salvadores vs.
Pajarillo 1947)
b. the orders were issued either in
excess of or without jurisdiction
(Aguilar vs. Tan 1970)
c. special considerations, i.e., public
welfare or public policy (Jose vs.
Zulueta 1961)
d. the order is a patent nullity (Marcelo
vs. De Guzman 1982)
e. the decision in the certiorari case
will avoid future litigations (St. Peter
Memorial Park vs. Campos 1975)
NOTE: In the 2005 and 2008 Bar Exams,
bar examinees were asked to compare
Petition for review on Certiorari and
Certiorari.
 A motion for reconsideration must first be
availed of before certiorari – to enable
the lower court to correct its mistakes
without the intervention of the lower
courts (BA Finance vs. Pineda 1982)
 Exceptions:
a. the order is a patent nullity (Vigan
Elec. Light vs. Public Service
Commission 1964)
b. the questions raised in the certiorari
have been duly raised and passed
upon by the lower court (Fortich-
Celdran vs. Celdran 1967) or are the
same as those raised and passed
upon in the lower court (Pajo vs. Ago
1960)
c. there is an urgent necessity for the
resolution of the question and delay
would prejudice the interests of the
government (Vivo vs.Cloribel 1966)
d. the MR would be useless (People vs.
Palacio 1960)
e. the petitioner was deprived of due
process and there is extreme
urgency for relief (Luzon Surety vs.
Marbella 1960)
f. the proceeding was ex parte in
which the petitioner had no
opportunity to object (Republic vs.
Maglanoc 1963)
g. the issue raised is purely a question
of law or where the public interest is
involved (PALEA vs. PAL 1982)
 Questions of fact cannot be raised in an
original action for certiorari. Only
established or admitted facts may be
considered. [Suarez v. NLRC, 1998]
 Findings of fact of CA are not binding
upon SC in an original action for
certiorari (Medran vs. CA, 1949)
 Prohibition is a preventive remedy.
 However, to prevent the respondent
from performing the act sought to be
prevented during the pendency of the
proceedings for the writ, the petitioner
should obtain a restraining order
and/or writ of preliminary injuction.
[Regalado]
 Prohibition is the remedy where a
motion to dismiss is improperly denied.
[Enriquez v. Macadaeg, 84 Phil 674]
 A writ of mandamus will not issue to
control the exercise of official discretion
or judgment, or to alter or review the
action taken in the proper exercise of
the discretion of judgment, for the writ

Page 90 of 370
REVIEWER IN REMEDIAL LAW
cannot be used as a writ of error or
other mode of direct review.
 However, in extreme situations
generally in criminal cases, mandamus
lies to compel the performance of the
fiscal of discretionary functions where
his actuations are tantamount to a
wilful refusal to perform a required
duty. [Regalado]
 General Rule: In the performance of an
official duty or act involving discretion,
such official can only be directed by
mandamus to act but not to act in one
way or the other.
 EXCEPTION: gross abuse of discretion,
manifest injustice, palpable excess of
authority [Kant Wong v. PCGG, 1987]
 Mandamus can be availed of only by the
party who has direct legal interest in
the right sought to be enforced.
HOWEVER, if the question is one of
public right, it is sufficient to show that
the petitioner is a citizen. [Tanada v.
Tuvera, 1985]
A. Procedure
1. FILE PETITION FOR CERTIORARI /
PROHIBITION / MANDAMUS.
 When filed:
 Not later than 60 days from notice of
judgment/order/resolution
 If a motion for reconsideration/new
trial is filed, the 60-day period shall
be counted from notice of denial of
motion.
 Extension may be granted for
compelling reasons, not exceeding
15 days. [Rule 65.4]
 Where filed:
1) Supreme Court
2) Court of Appeals
 If it involves the acts of a quasi-
judicial agency, the petition shall
be filed only in the CA, unless
otherwise provided by law or the
Rules.
3) Regional Trial Court, if it relates to
acts / omissions of a lower court /
corporation / board / officer /
person.
4) Sandiganbayan, if it is in aid of its
appellate jurisdiction. [Rule 65.4]
2. ORDER TO COMMENT
 If the petition is sufficient in form and
substance to justify such process, the
court shall issue an order requiring the
respondent(s) to comment on the
Part 4: Special Civil Actions
petition within 10 days from receipt of a
copy thereof.
 Such order shall be served on the
CIVIL PROCEDURE
respondents in such manner as the
court may direct, together with a copy of
the petition and any annexes thereto.
[Rule 65.6]
3. HEARING OR MEMORANDA
 After the comment or other pleadings
required by the court are filed, or the
time for the filing thereof has expired,
the court may hear the case or require
the parties to submit memoranda. [Rule
65.8]
4. JUDGMENT
 If after such hearing or submission of
memoranda or the expiration of the
period for the filing thereof, the court
finds that the allegations of the petition
are true, it shall render judgment for
the relief prayed for or to which the
petitioner is entitled.
 The court, however, may dismiss the
petition if it finds the same to be (1)
patently without merit, (2) prosecuted
manifestly for delay, or that (3) the
questions raised therein are too
unsubstantial to require consideration.
[Rule 65.8]
5. SERVICE AND ENFORCEMENT OF
ORDER OR JUDGMENT
 A certified copy of the judgment
rendered shall be served upon the
court, quasi-judicial agency, tribunal,
corporation, board, officer or person
concerned in such manner as the court
may direct, and disobedience thereto
shall be punished as contempt.
 An execution may issue for any
damages or costs awarded in
accordance with section 1 of Rule 39.
[Rule 65.9]
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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions

V. QUO WARRANTO B. By Whom/Against Whom

 By Government, brought in the name
A. HOW COMENCED of the Republic of the Philippines,

CIVIL PROCEDURE
B. BY WHOM/AGAINST WHOM against:
C. CONTENTS OF PETITION a. A person who usurps, intrudes into,
D. VENUE or unlawfully holds or exercises a
E. WHEN FILED
public office, position or franchise
F. JUDGMENT
b. A public officer who does not or
suffers an act which, by the
 Quo warranto is the remedy to try
provision of law, constitutes a
disputes with respect to the title to a
ground for the forfeiture of his office
public office.
c. An association which acts as a
corporation within the Phils without
QUO WARRANTO ELECTION CONTEST
being legally incorporated or without
Basis: the occupant is Challenges the right of
disqualified from a person to hold office
lawfully authority so to act [Rule
holding the office by on the ground of 66.1]
reason of ineligibility irregularities in the  When Solicitor General or public
or disloyalty conduct of the elections prosecutor MUST commence action:
If proceeding Successful protestant o when directed by the President
succeeds, respondent will assume the office if of the Phils.
will be ousted but he obtained a plurality o when upon complaint or
petitioner will not of the valid votes otherwise, he has good reason to
assume the office
believe that any case specified in
Sec. 1 can be established by
QUO WARRANTO ACTIONS
proof. [Rule 66.1]
ELECTIVE OFFICE APPOINTIVE OFFICE
o at the request and upon the
Issue: eligibility of the Issue: validity of the
respondent appointment relation if another person (ex
Occupant declared Court will oust the relatione), but leave of court
ineligible/disloyal will person illegally must first be obtained. [Rule
be unseated but appointed and will 66.3]
petitioner will not be order the seating of the  When Solicitor General or public
declared the rightful person who was legally prosecutor MAY commence action:
occupant of the office appointed and entitled o with permission of the court
to the office. o at the request and upon the
relation of another person
DIFFERENCE BETWEEN MANDAMUS AND
o officer bringing such action may
QUO WARRANTO
(ASKED IN THE 2001 BAR EXAM) first require an indemnity for the
While quo warranto and mandamus are often expenses and costs of the action
concurrent remedies, however, there exists a in an amount approved by and
clear distinction between the two. (Lota vs. CA, deposited in court. [Rule 66.3]
1961)  By a person claiming to be entitled to
The authorities are Mandamus only lies to a public office or position, brought in
agreed that quo enforce clear legal his own name, against another who
warranto is the remedy duties, not to try usurped or unlawfully held or exercised
to try the right to an disputed titles (to an
such public office or position [Rule 66.5]
office or franchise and office), 38 C.J. 546; 2
to oust the holder from Moran, Comments on
its enjoyment. Where the Rules of Court, C. Contents of Petition
there is usurpation or 1957 ed., 200; and  Action against a person for usurping a
intrusion into an that where the public office, position or franchise
office, quo warranto is respondent, without (1) name of the person who claims to be
the proper remedy, claiming any right to entitled thereto
Lino Luna vs. an Office, excludes the (2) averment of his right to the same
Rodriguez, 36 Phil. petitioner therefrom,
and that the respondent is
491, he remedy is
mandamus, not quo
unlawfully in possession thereof.
warranto. Manalo vs.  All persons who claim to be entitled to
Sevilla, 24 Phil. 609) the public office/position/franchise may
be made parties. [Rule 66.6]
A. How Commenced
 By a verified petition [Rule 66.1] D. Venue
 Supreme Court

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REVIEWER IN REMEDIAL LAW
 Court of Appeals
 RTC exercising jurisdiction over the
territorial area where the respondent or
any of the respondents resides
 Where Sol Gen commences action– RTC
in Manila, CA or SC [Rule 66.7]
E. When Filed
 action against a public officer or
employee for his ouster from office –
within one year after the cause of such
ouster, or the right of the petitioner to
hold office or position, arose
 action for damages sustained by reason
of usurpation – within one year after
the entry of the judgment establishing
the petitioner’s right to the office in
question [Rule 66.11]
 The one-year period is not interrupted
by the prosecution of any administrative
remedy as, in quo warranto
proceedings, no one is compelled to
resort to administrative remedies since
public interest requires that the right to
public office should be determined as
speedily as possible. [Fernandez v. Dela
Paz, 1988]
F. Judgment
 When the respondent is found guilty of
usurping, intruding into, or unlawfully
holding or exercising a public office,
position or franchise, judgment shall be
rendered that such respondent be
ousted and altogether excluded
therefrom, and that the petitioner or
relator recover his costs. [Rule 66.9]
 If judgment be rendered in favor of the
person averred in the complaint to be
entitled to the public office he may, after
taking the oath of office and executing
any official bond required by law, take
upon himself the execution of the office,
and may immediately thereafter
demand of the respondent all the books
and papers in the respondent's custody
or control appertaining to the office to
which the judgment relates.
 The person adjudged entitled to the
office may also bring action against the
respondent to recover the damages
sustained by such person by reason of
the usurpation. [Rule 66.10]
Part 4: Special Civil Actions
VI. EXPROPRIATION
A. CONCEPT AND BASIS OF EXPROPRIATION
CIVIL PROCEDURE
B. TWO STAGES IN EXPROPRIATION
PROCEEDINGS
C. PROCEDURE
A. Concept and Basis of
Expropriation
 Eminent domain is defined as the power
of the nation or a sovereign state to
take, or to authorize the taking of,
private property for a public use without
the owner’s consent, conditioned upon
payment of just compensation.
 The exercise of the power of eminent
domain is constrained by two
constitutional provisions:
 (1) that private property shall not be
taken for public use without just
compensation under Article III (Bill
of Rights), Section 9; and
 (2) that no person shall be deprived
of his/her life, liberty, or property
without due process of law under
Art. III, Sec. 1. (Barangay Sindalan
etc. et al. v. CA et al., 2007)
 Rule 67 primarily governs the exercise
of the right of eminent by the State
acting through the national
government. (Regalado) Expropriation
by local government units is governed
by the Local Government Code of 1991
(R.A. 7160)
B. Two Stages in Expropriation
Proceedings:
a. Determination of the authority of the
plaintiff to exercise the power of
eminent domain and the propriety of its
exercise in the context of the facts.
 This stage is terminated by either an
order of dismissal of the action or
order of the condemnation declaring
that expropriation is proper and
legal. These orders are final and
therefore appealable. (Municipality of
Biñan v. Garcia, 1989)
b. Determination of just compensation.
 This is done with the assistance of
not more than three (3)
commissioners.
 The order fixing just compensation
is also final and appealable. (Ibid).
Just compensation is to be
determined as of the date of the
taking of the propriety or the filing
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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions
of the complaint, whichever comes bank payable on demand to the
first. authorized government depositary.
 There is taking when the owner is  If personal property is involved, its

CIVIL PROCEDURE
actually deprived or dispossessed of his value shall be provisionally ascertained
property; when there is a practical and the amount to be deposited shall be
destruction or a material impairment of promptly fixed by the court.
the value of his property or when he is  After deposit, the court shall order the
deprived of the ordinary use thereof. sheriff or other proper officer to place
(Ansaldo v. Tantuico, 1990) the plaintiff in possession of the
 An expropriation suit is incapable of property and promptly submit a report
pecuniary estimation. Accordingly, it thereof to the court with service of
falls within the jurisdiction of RTCs, copies to the parties. [Rule 67.2]
regardless of the value of the subject  If the ownership of the property taken is
property. (Bardillon v. Bgy. Masili, 2003) uncertain, or there are conflicting
claims to any part thereof, the court
C. Procedure may order any sum(s) awarded as
(See APPENDIX 4.) compensation for the property to be
paid to the court for the benefit of the
1. COMPLAINT FOR EXPROPRIATION person adjudged in the same proceeding
 The complaint for expropriation must be to be entitled thereto.
VERIFIED.  But the judgment shall require the
 CONTENTS: payment of the sum(s) awarded to either
1) The right and purpose of the defendant or the court before the
expropriation plaintiff can enter upon the property, or
2) Description of the real or personal retain it for the public use or purpose if
property sought to be expropriated; entry has already been made. [Rule
3) The complaint shall join as 67.9]
defendants all persons owning or
claiming to own, or occupying any 3. ANSWER
part thereof or any interest therein, IF THE PLAINTIFF IF THE PLAINTIFF
showing as far as practicable the HAS NO OBJECTION HAS OBJECTION OR
separate interest of each defendant. OR DEFENSE TO THE DEFENSE TO THE
4) The following must be clearly stated EXPROPRIATION OR EXPROPRIATION OR
TAKING OF THE TAKING OF THE
in the complaint , if applicable:
PROPERTY PROPERTY
a. If the title to any property sought Defendant may file and Defendant shall serve
to be expropriated appears to be serve notice of his ANSWER within the
in the Republic of the appearance and a time stated in the
Philippines, although occupied manifestation that he summons.
by private individuals; has no objection or
b. If the title is otherwise obscure defense, specifically
or doubtful so that the plaintiff designating or
cannot with accuracy or identifying the property
in which he claims to
certainty specify who are the real
be interested within the
owners. [Rule 67.1] time stated in the
summons. Thereafter,
2. ENTRY OF PLAINTIFF UPON PROPERTY
the defendant shall be
 The plaintiff shall have the right to take entitled to notice of all
or enter upon the possession of the real proceedings affecting
property involved upon: the same.
1. filing of complaint for expropriation
2. service of notice to the defendant  GENERAL RULE: All defenses or
3. Deposit with the authorized objections not alleged in the answer are
government depositary an amount deemed waived.
equivalent to the assessed value of  EXCEPTION: The court, in the interest
the property for purposes of taxation of justice, may allow the answer to be
to be held by such bank subject to amended not later than 10 days from
the orders of the court. filing.
4. Deposits shall be in money (legal  At the trial of the issue of
tender) or, if the court authorizes it, compensation, whether or not the
certificate of deposit of a government defendant has previously appeared or
answered, he may present evidence as

Page 94 of 370
REVIEWER IN REMEDIAL LAW
to the amount of the compensation to
be paid for his property, and he may
share in the distribution of the award.
 The answer to the complaint for
expropriation shall:
1) Specifically designate or identify the
property in which he claims to have
an interest;
2) State the nature and extent of the
interest claimed; and
3) Adduce all of defendant’s objections
or defenses to the taking of his
property
 No counterclaim, cross-claim or third-
party complaint shall be alleged or
allowed in the answer or any
subsequent pleading. [Rule 67.3]
4. ORDER OF EXPROPRIATION
 It declares that the plaintiff has a lawful
right to take the property sought to be
expropriated for the public use or
purpose described in the complaint,
upon payment of just compensation to
be determined as of the date of the
taking of the property or the filing of the
complaint whichever is earlier.
 It is issued by the court in which the
complaint for expropriation is filed
when:
 objections or defenses of the
defendant have been overruled, or
 the defendant raised no such
defense or objection, or
 no party appears to defend. [Rule
67.4]
5. COMPENSATION
 Just compensation is defined as the
full and fair equivalent of the property
taken from its owner by the
expropriator.
 The measure is not the taker’s gain, but
the owner’s loss. To compensate is to
render something which is equal in
value to that taken or received.
 The word “just” is used to intensify the
meaning of the word “compensation”; to
convey the idea that the equivalent to
be rendered for the property taken shall
be real, substantial, full, ample.
 In eminent domain or expropriation
proceedings, the general rule is that the
just compensation which the owner of
condemned property is entitled to is the
market value.
 Market value is “that sum of money
which a person desirous but not
compelled to buy, and an owner willing
but not compelled to sell, would agree
Part 4: Special Civil Actions
on as a price to be given and received
therefor.” (BPI v. CA, 2004)
 Upon the rendition of the order of
CIVIL PROCEDURE
expropriation, the court shall appoint
not more than 3 competent and
disinterested persons as commissioners
to ascertain and report to the court the
just compensation for the property
sought to be taken. [Rule 67.5]
 Powers and duties of commissioners:
 Parties can present evidence before
the commissioners and the latter
have the power to administer oaths
or hearings before them;
 They can, after due notice to the
parties to attend, view and examine
the property sought to be
expropriated and its surroundings
and may measure the same;
EXCEPTION: when the parties
agrees otherwise, the commissioners
cannot view and examine the
property
 The commissioners shall assess the
consequential damages to the
property taken and deduct from
such consequential damages the
consequential benefits derived by
the owner from the public use or
purpose of the property taken, the
operation of its franchise by the
corporation or person taking the
property.
 In no case shall the consequential
benefits assessed exceed the
consequential damages assessed, or
the owner be deprived of the actual
value of his property so taken. [Rule
67.6]
 The commissioners shall make full and
accurate report to the court of all their
proceedings.
 The report shall be filed within 60
days from the date the
commissioners were notified of their
appointment.
 Upon filing of the report, the clerk of
court shall serve copies thereof on
all interested parties, with notice
that they are allowed ten (10) days
within which to file objections to the
findings of the report, if the parties
desire. [Rule 67.7]
 After the 10-day period for objecting to
the commissioners’ report, the court,
after hearing, may:
 ACCEPT the report and render
JUDGMENT in accordance
therewith;
Page 95 of 370
REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions
 RECOMMIT the report to the VII. FORECLOSURE OF REAL
commissioners for further report of ESTATE MORTGAGE
facts; (Asked in the 2003 Bar Exam)

CIVIL PROCEDURE
 SET ASIDE the report and APPOINT
new commissioners; A. COMPLAINT’S CONTENTS
 ACCEPT the report IN PART and B. JUDGMENT
REJECT it IN PART; C. DISPOSITION OF THE PROCEEDS OF THE
 Make such order or render SALE
D. DEFICIENCY JUDGMENT
judgment s shall secure to the
E. REGISTRATION
plaintiff the property essential to the
exercise of his right of expropriation
 The cause of action in a foreclosure suit
and to the defendant just
is generally the non-payment of the
compensation for the property so
mortgage loan, but it may be on other
taken. [Rule 67.8]
grounds which under the contract
warrant the foreclosure, such as the
6. JUDGMENT
violation of the other conditions therein.
 The judgment entered in expropriation
 Foreclosure may be made:
proceedings shall state definitely, by an
1. judicially – governed by Rule 68
adequate description, the particular
2. extrajudicially – proper only when so
property or interest therein
provided in contracts in accordance
expropriated, and the nature of the
with Act. No. 3135; governed by
public use or purpose for which it is
A.M. No. 99-10-05-0.
expropriated.
 A foreclosure action must be brought in
 When real estate is expropriated, a
the RTC of the province where the land
certified copy of such judgment shall be
or any part thereof is situated.
recorded in the registry of deeds of the
 If a mortgage contract covers several
place in which the property is situated,
distinct parcels of land situated in
and its effect shall be to vest in the
different provinces, the action may be
plaintiff the title to the real estate so
brought in the RTC of any of the
described for such public use or
provinces and the judgment will be
purpose. [Rule 67.13]
enforceable against any of the parcels of
 Upon payment by the plaintiff to the
land involved. [Monte de Piedad v.
defendant of the compensation fixed by
Rodrigo, 56 Phil 301]
the judgment, with legal interest
thereon from the taking of the
possession of the property, or after
A. Complaint’s Contents
tender to him of the amount so fixed
a. Date and due execution of the
and payment of the costs,
mortgage;
 the plaintiff shall have the right to enter
upon the property expropriated and to b. Date of assignment of mortgage, if any;
c. The names and residences of the
appropriate it for the public use or
purpose defined in the judgment, or to mortgagor and mortgagee;
d. Description of the mortgaged property;
retain it should he have taken
e. Statement of the date of the note or
immediate possession thereof under
Sec. 2. [Rule 67.10] other documentary evidence of the
obligation secured by the mortgage;
 The right of the plaintiff to enter upon
f. Amount claimed to be unpaid;
the property of the defendant and
appropriate the same for public use or g. The names and residences of all
purpose shall not be delayed by an persons having or claiming an interest
appeal from the judgment. in the property subordinate in right to
that of the holder of the mortgage, all of
 But if the appellate court determines
whom shall be made defendants in the
that plaintiff has no right of
action. [Rule 68.1]
expropriation, judgment shall be
rendered ordering the RTC to forthwith
enforce the restoration to the defendant B. Judgment
of the possession of the property, and to
determine the damages which the  If upon the trial, the court shall find the
defendant sustained and may recover facts set forth in the complaint to be
by reason of the possession taken by true, it shall ascertain the amount due
the plaintiff. [Rule 67.11] to the plaintiff upon the mortgage debt

Page 96 of 370
REVIEWER IN REMEDIAL LAW
or obligation, including interest and
other charges as approved by the court,
and costs, and shall render judgment
for the sum so found due and order that
the same be paid to the court or to the
judgment obligee within a period of
not less than 90 days nor more than
120 days from the entry of judgment
(“equity of redemption”).
 In default of such payment the property
shall be sold at public auction to satisfy
the judgment. [Rule 68.2]
 When the defendant, after being
directed to do so, fails to pay the
amount of the judgment within the
period specified therein, the court, upon
motion, shall order the property to be
sold in the manner and under the
provisions of Rule 39 and other
regulations governing sales of real
estate under execution.
 Such sale shall not affect the rights of
persons holding prior encumbrances
upon the property or a part thereof, and
when confirmed by an order of the
court, also upon motion,
 it 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.
 Upon the finality of the order of
confirmation or upon the expiration of
the period of redemption when allowed
by law, the purchaser at the auction
sale or last redemptioner, if any, shall
be entitled to the possession of the
property, unless a third party is actually
holding the same adversely to the
judgment obligor.
 The said purchaser or last redemptioner
may secure a writ of possession, upon
motion, from the court which ordered
the foreclosure. [Rule 68.3]
C. Disposition of the Proceeds of the
Sale
 Claims to be satisfied by the proceeds of
the public sale of mortgaged property
(in order):
 Costs incurred in the sale of
property
 Claim of the person foreclosing the
property
 Claims of junior encumbrancers in
the order of their priority
 If proceeds of the sale exceeds the cost
of the sale as well as the claims of the
person foreclosing the property and
Part 4: Special Civil Actions
junior encumbrancers, if any  the
residual amount shall be given to the
mortgagor or his agent, or to the person
CIVIL PROCEDURE
entitled to it. [Rule 68.4]
 If the proceeds of the sale is less than
the amount of the claims to be satisfied
 the person foreclosing the property
may move for a DEFICIENCY
JUDGMENT from the court
confirming the foreclosure sale, to
recover the amount of the deficiency
in his claim.
D. Deficiency Judgment
 Definition. A judgment against a debtor
for the unpaid balance of the debt if a
foreclosure sale or a sale of repossessed
personal property fails to yield the full
amount of the debt due; also termed a
deficiency decree. (Black’s Law
Dictionary)
 Sec. 6 provides for a deficiency
judgment which shall be rendered, on
motion, when the foreclosure sale did
not produce proceeds sufficient to
satisfy the judgment.
 In extrajudicial foreclosure, the
mortgagee can also recover by action
any deficiency in the mortgage
account which was not realized in
the foreclosure sale. [PNB v. CA,
1999]
 A motion for deficiency judgment may
be made only after the sale and after it
becomes known that a deficiency exists.
(Governor of the Philippine Islands v.
Torralba Vda. de Santos, 1935)
 No deficiency judgment may be
rendered against the owner who is not a
mortgagor and has not assumed
personal liability for the debt. The
remedy is an ordinary action against
the debtor. (Philippine Trust Co. v.
Echaus Tan Siua, 1929)
 If the debtor dies, the deficiency may be
filed as a claim against his estate. (Rule
86.7)
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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions

E. Registration [Rule 68.7] the mortgagee is the Philippine National

Bank or a bank or banking institution.
 A CERTIFIED COPY of the final order (Huerta Alba Resort, Inc. v. CA, 2000)

confirming the sale shall be registered
in the Registry of Deeds.
 Equity of Redemption is the right of the
IF NO RIGHT OF IF A RIGHT OF
REDEMPTION REDEMPTION
EXISTS EXISTS
The Certificate of Title The Certificate of
in the name of the Title in the name of
mortgagor shall be the mortgagor shall
cancelled, and a new NOT be cancelled,
one issued in the name but the Certificate of
of the purchaser. Sale and the order
confirming the sale
shall be registered
and a brief VIII.
memorandum thereof
shall be made by the A.
Registrar of Deeds B.
upon the certificate of C.
title D.
E.
IF THE PROPERTY IS IF THE PROPERTY F.
REDEEMED IS NOT REDEEMED G.
The Deed of The FINAL Deed of
Redemption shall be Sale executed by the  Partition of property may be:
registered with the sheriff in favor of the
Registry of Deeds and purchaser at the
a brief memorandum foreclosure sale
thereof shall be made shall be registered
by the Registrar of with the Registry of  Even if the parties resorted to judicial
Deeds on said Deeds.
certificate of title.
The Certificate of
Title in the name of  Rule 69 applicable to partitions of
the mortgagor shall
be cancelled and a
new one shall be
issued in the name
of the purchaser.  Stages in an Action for Partition:
 Right of redemption is the right granted
to the debtor-mortgagor, his successor-
in-interest or any judicial creditor of
said debtor-mortgagor or any person
having a lien in the property
subsequent to its mortgage or deed of
trust, under which the property is sold,
to redeem the property within one (1)
year from the registration of the sheriff’s
certificate of foreclosure sale. (De Castro
v. Intermediate Appellate Court, 1988)
 The right of redemption in relation to a
mortgage is understood in the sense of
a prerogative to re-acquire mortgaged
property after registration of the
foreclosure sale.
 It exists only in the case of the
extrajudicial foreclosure of the
mortgage.
 No such right is recognized in a
judicial foreclosure, except only where
CIVIL PROCEDURE
However, the mortgagor has the “equity
of redemption.”
defendant mortgagor to extinguish the
mortgage and retain ownership of the
property by paying the amount fixed in
the decision of the court within 90 to
120 days after entry of judgment or
even after the foreclosure sale but prior
to its confirmation. (Limpin v.
Intermediate Appellate Court, 1988)
PARTITION
COMPLAINT
VENUE
WHEN TO FILE
ORDER OF PARTITION
PARTITION BY AGREEMENT
PARTITION BY COMMISSIONERS
JUDGMENT
 Extrajudicial – by agreement
 Judicial – compulsory; governed by
Rule 69
partition, they may still make an
amicable partition of the property.
[Secs. 2 and 12]
estates composed of personal property,
or of both real and personal property.
[Sec. 13]
1. Determination of the propriety of
partition.
 This involves a determination of
whether the subject property is
owned in common and whether all
the co-owners are made parties in
the case.
 The order may also require an
accounting of rents and profits
recovered by the defendant. This
order of partition is appealable.
(Miranda v. Court of Appeals, 1976)
 If not appealed, then the parties
may partition the common property
in the way they want. If they cannot
agree, then the case goes into the
second stage. However, the order of
accounting may in the meantime be
executed. (De Mesa v. CA, 1994)
2. The actual partitioning of the
subject property.

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REVIEWER IN REMEDIAL LAW
 This is also a complete proceeding
and the order or decision is
appealable.
 When there was a prior partition,
the fact that the share of each co-
heir has not been technically
described and the title over the
whole lot remains uncancelled does
not negate such partition.
 There can be no partition again
because there is no more common
property. (Noceda v. CA, 1999)
 b. Adequate description of the real
 Oral partition of land when the same is
fully consummated is valid and binding
upon the parties thereto. (Crucillo v.
IAC, 1999)
 All persons considered as co-owners
and interested in the property to be
partitioned are indispensable parties to
the action and must be impleaded.
(Sepulveda v. Pelaez, 2005)
 Parties to a partition proceeding, who
elected to take under partition, and who
took possession of the portion allotted
to them, are estopped to question title
to portion allotted to another party.
 A person cannot claim both under and
against the same instrument. In other
words, they accepted the lands awarded
them by its provisions, and they cannot
accept the decree in part, and repudiate
it in part.
 They must accept all or none. Parties
who had received the property assigned
to them are precluded from
subsequently attacking its validity of
any part of it. (Maglucot-aw et al. v.
Maglucot et al., 2000)
 Partition may be inferred from
circumstances sufficiently strong to
support the presumption. Thus, after a
long possession in severalty, a deed of
partition may be presumed.
 It has been held that recitals in deeds,
possession and occupation of land,
improvements made thereon for a long
series of years, and acquiescence for 60
years, furnish sufficient evidence that
there was an actual partition of land
either by deed or by proceedings in the
probate court, which had been lost and
were not recorded.
 And where a tract of land held in
common has been subdivided into lots,
and one of the lots has long been known
and called by the name of one of the
tenants in common, and there is no
evidence of any subsequent claim of a
tenancy in common, it may fairly be
Part 4: Special Civil Actions
inferred that there has been a partition
and that such lot was set off to him
whose name it bears. (Maglucot-aw et al.
CIVIL PROCEDURE
v. Maglucot et al., supra)
A. Complaint
 Filed by person having the right to
compel the partition of real estate.
 Contents:
a. Nature and extent of the
complainant’s title
estate of which the partition is
demanded
c. All other persons interested in the
property must be impleaded. [Rule
69.1]
B. Venue
 Actions for partition should be filed in
the RTC of the province where the
property or part thereof is situated.
 If several dintinct parcels of land are
situated in different provinces, venue
may be laid in the RTC of any of said
provinces. [Pancho v. Villanueva, 99 Phil
611]
C. When to File
 The right of action to demand partition
does not prescribe [De Castro v. Echarri,
20 Phil 23], EXCEPT where one of the
interested parties openly and adversely
occupies the property without
recognizing the co-ownership [Cordova
v. Cordova, 102 Phil 1182] in which
case, acquisitive prescription may set
in.
 If a co-owner repudiates the co-
ownership and makes known such
repudiation to the other co-owners,
then partition is no longer a proper
remedy of the aggrieved co-owner. He
should file an accion reivindicatoria,
which is prescriptible. (Roque v. IAC,
1988)
D. Order of Partition
 After trial, if the court finds that the
plaintiff has the right to the property
subject of partition, it shall issue an
order demanding the partition of the
real estate among all the parties in
interest.
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REVIEWER IN REMEDIAL LAW
E. Partition by Agreement
After the issuance of the order of partition, the
parties will then be asked if they agree to make
partition of the property among themselves.
If they agree, proper instruments of conveyance
will be executed to effect the partition.
After the execution of instruments of
conveyance, the court shall confirm the partition
through a final order.
The final order of partition and the instruments
of conveyance shall be registered with the
Registry of Deeds where the property is situated.
[Rule 69.2]
 A party shall recover from another his
just share of rents and profits received
by such other party from the real estate
in question, and the judgment shall
include an allowance for such rents and
profits. [Rule 69.8]
 A final order decreeing partition and
accounting may be appealed by any
party aggrieved thereby. [Rule 69.2]
F. Partition by Commissioners
 If the parties are unable to agree upon
the partition, the court shall appoint
not more than 3 competent and
disinterested persons as commissioners
to make the partition, commanding
them to set off to the plaintiff and to
each party in interest such part and
proportion of the property as the court
shall direct. [Rule 69.3]
 Duties of Commissioners [Rule 69.4]:
1. view and examine the real estate,
after due notice to the parties to
attend at such view and
examination
2. hear the parties as to their
preference in the portion of the
property to be set apart to them and
the comparative value thereof
3. 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.
 If the commissioners should determine
that the real estate cannot be divided
without prejudice to the interests of the
parties, the court may order that the
property be assigned to one of the
parties willing to take the same
PROVIDED he pays to the other parties
Part 4: Special Civil Actions
such amounts as the commissioners
deem equitable
 EXCEPTION: if one of the parties asks
CIVIL PROCEDURE
that the property be sold instead of
being so assigned, then the court shall
ORDER the commissioners to sell the
real estate at pubic sale under such
conditions and within such time as the
court may determine. [Rule 69.5]
 The commissioners shall make a full
and accurate report to the court of all
their proceedings as to the partition, or
the assignment of real estate to one of
the parties or the sale of the same.
 Upon filing the report, the clerk of court
shall serve copies thereof on all
interested parties with notice that they
are allowed 10 days within which to file
objections to the findings of the report,
if they so desire.
 No proceeding had before or conducted
by the commissioners shall pass the
title to the property or bind the parties
until the court accepts the
commissioners’ report and rendered
judgment thereon. [Rule 69.6]
 Upon the expiration of the 10-day
period, or even before the expiration of
such period but after the interested
parties filed their objections to the
report/statement of agreement, the
court, upon hearing, may:
1. ACCEPT the commissioners’ report
and render JUDGMENT based upon
it.
2. RECOMMIT the report to the
commissioners for further report of
facts if there is cause to do the same
3. SET ASIDE the report and APPOINT
new commissioners
4. ACCEPT the report IN PART and
REJECT it IN PART
5. Make such order and render such
judgment as shall effectuate a fair
and just partition of the real estate
or of its value, if the property is
assigned or sold between the several
owners thereof. [Rule 69.7]
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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions

G. Judgment IX. FORCIBLE ENTRY AND

UNLAWFUL DETAINER
CONTENTS OF EFFECTS OF (Asked in the 2000 Bar Exam in

CIVIL PROCEDURE
JUDGMENT JUDGMENT Relation to a Pending Action for
IF ACTUAL Judgment shall Judgment shall Specific Performance)
PARTITION state definitely, vest in each
IS by metes and party to the
A. ACTIONS FOR THE RECOVERY OF
PROPERLY bounds and action in
POSSESSION OF REAL PROPERTY
MADE adequate severalty the
B. FORCIBLE ENTRY
description, the portion of the
C. UNLAWFUL DETAINER
particular real estate
D. PLEADINGS
portion of the assigned to
E. PROCEDURE
real estate him.
F. PRELIMINARY INJUNCTION
assigned to
G. MATTERS NOT CONSTITUTING
each party.
PREJUDICIAL QUESTION TO EJECTMENT
IF THE Judgment shall Judgment shall
WHOLE state the fact of vest in the
PROPERTY such payment party making A. Actions for the Recovery of
IS ASSIGNED and of the the payment Possession of Real Property
TO ONE OF assignment of the whole of the
THE the real estate real estate free 1. Accion Interdictal –
PARTIES to the party from any  the summary action for forcible
AFTER making the interest on the
PAYMENT payment. part of the
entry (detentacion)
other parties.  where the defendant’s possession of
IF Judgment shall Judgment shall property is illegal ab initio, or
PROPERTY state the name vest the real  the summary action for unlawful
IS SOLD AND of the estate in the detainer (desahucio) where the
SALE IS purchaser or purchaser(s), defendant’s possession was
CONFIRMED purchasers and making the originally lawful
BY THE a definite payment(s) free
 but ceased to be so by the expiration
COURT description of from the
the parcels of claims of any
of his right to possess,
real estate sold parties to the  both of which must be brought
to each action. within one year from the date of
purchaser actual entry to the land, in case of
forcible entry, and from the date of
 A certified copy of the judgment shall in last demand, in case of unlawful
either case be recorded in the registry of detainer,
deeds of the place in which the real  in the proper municipal trial court
estate is situated. [Rule 69.11] or metropolitan trial court.
 Nature:
a. special civil action involving realty;
b. subject to the Rules on Summary
Procedure; [Rule 70.3]
c. under the original exclusive
jurisdiction of first level courts;
d. nature of the action is determined
by the allegation of the complaint
and the character of the relief
sought; (Abrin v. Campos, 1991)
e. one co-owner may institute the
action.

2. Accion Publiciana –
 is a plenary action for recovery of
the right to possess and which
should be brought in the proper
regional trial court when the
dispossession has lasted for more
than one year.

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REVIEWER IN REMEDIAL LAW
3. Accion Reivindicatoria –
 or accion de reivindicacion, seeks the
recovery of ownership and includes
the jus utendi and the jus fruendi,
which must be brought in the
proper regional trial court.
 It is thus an action whereby plaintiff
alleges ownership over a parcel of
land and seeks recovery of its full
possession. [Javier v. Veridiano,
1994]
B. Forcible Entry
 Resorted to when a person is deprived
of possession of any land or building by
(1) force, (2) intimidation, (3) strategy,
(4) threat, or (5) stealth. (fists)
 Must be brought at any time within 1
year after such unlawful deprivation in
the proper municipal trial court against
the person unlawfully depriving him of
possession or against any person or
persons claiming under them.
 Action must be for the restitution of
possession of property together with
damages and costs. [Rule 70.1]
 The owners of a property have no
authority to use force and violence to
eject alleged usurpers who were in prior
physical possession of it.
 They must file the appropriate action in
court and should not take the law into
their own hands. (Laurora v. Sterling
Technopark, 2003)
C. Unlawful Detainer
 resorted to when a lessor, vendor,
vendee, or other person against whom
the possession of any land or building is
unlawfully withheld, after the expiration
or termination of the right to hold
possession by virtue of an express or
implied contract.
 may also be brought by the legal
representative or assigns of any such
lessor, vendor, vendee, or other
persons.
 must be brought at any time within 1
year after the unlawful withholding of
possession in the proper Municipal Trial
Court against the person unlawfully
withholding possession or persons
claiming under them.
 action must be for the restitution of
possession of property together with
damages and costs. [Rule 70.1]
 commenced by lessor only after:
Part 4: Special Civil Actions
 (1) demand to pay or comply with
the conditions of the lease and to
vacate is made upon the lessee, or
CIVIL PROCEDURE
 (2) by serving written notice of such
demand upon the person found on
the premises, or
 (3) by posting such notice on the
premises if no person be found
thereon, and the lessee fails to
comply therewith after 15 days in
the case of land or 5 days in the
case of buildings. [Rule 70.2]
 EXCEPTIONS (prior demand not
required):
a. Where purpose of the action is to
terminate the lease by reason of the
expiry of its term, and is not for
failure to pay rentals or comply with
the terms of the lease contract. [De
Santos v. Vivas, 96 Phil 538]
b. When the purpose of the suit is not
for ejectment but for the
enforcement of the terms of the
contract. [Guanson v. Ban, 77 Phil 7]
c. When the defendant is not a tenant
but a mere intruder. [id]
 Demand upon a tenant may be oral.
(Jakihaca v. Aquino, 1990)
 A person who occupies the land of
another at the latter's tolerance or
permission, without any contract
between them is necessarily bound by
an implied promise that he will vacate
upon demand, failing which, an action
for unlawful detainer may be instituted
against him. (Dakudao v. Consolacion,
1983)
 This rule as to tolerance does not hold
true in a case where there was forcible
entry at the start, but the lawful
possessor did not attempt to oust the
intruder for over 1 year, and only
thereafter filed forcible entry suit
following demand to vacate. (Muñoz v.
CA, 1992)
 Tolerance must be presented right from
the start of possession sought to be
recovered to categorize a cause of action
as one of unlawful detainer. (Refugia v.
CA, 1996)
 When failure to pay rent or comply with
the condition of lease is the ground for
ejectment, plaintiff should give 2
demands (which may be embodied in 1
demand letter):
1. demand to pay rental or comply
with conditions of the lease, and if
this is not complied with,
2. demand to vacate (Zobel v. Abreu,
1956)
Page 102 of 370
REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions
 Notice and demand to vacate is required d. Answer
on a lease on a month-to-month period  Prohibited pleadings and motions [Rule
to render effective the termination of the 70.13]:

CIVIL PROCEDURE
lease upon the expiration of the month,  Motion to dismiss
and prevent an implied renewal of the  EXCEPTIONS:
lease. (Rivera v. Florendo; Yap v. Cruz, a. Motion to dismiss based on lack
1992) of jurisdiction over the subject-
 An alternative demand to either renew matter
the expired lease contract at a higher b. Motion to dismiss for failure to
rental rate or vacate is not a definite comply with section 12 (referral
demand to vacate and therefore, to conciliation)
insufficient basis for the filing of an  Motion for a Bill of Particulars
action for unlawful detainer. (Penas, Jr.  Motion for New Trial
v. CA, 1994)  Motion for reconsideration of a
 Refusal to collect or accept rentals is judgment
not a defense. There must be  Motion for reopening of trial
consignation. (Uy v. CA, 1989)  Petition for relief from judgment
 Motion for extension to file
UNLAWFUL
FORCIBLE ENTRY pleadings, affidavits or other papers
DETAINER
Possession becomes Possession was lawful  Memoranda
unlawful right from the at first but later  Petition for Certiorari, Mandamus or
very start (i.e. from the becomes illegal, as Prohibition against any interlocutory
time of entry) as he when the lease order issued by the court
acquires possession by contract has expired  Motion to declare defendant in
FISTS. and the lessee refuses default
to vacate the premises
 Dilatory motion for postponement
despite demand.
The deprivation of The unlawful  Reply
physical possession of withholding of  Third-party complaints
land and building is possession is made  Interventions
effected through force, after the expiration or
intimidation, strategy, termination of the E. Procedure
threat or stealth right to hold
(FISTS). possession under any
1. Filing of complaint.
contract, express or
implied.
The issue centers on The issue centers on 2. After the court has examined the
who was in prior whether the allegations in the complaint and
possession de facto. defendant’s right to supporting evidence attached to the
possess has expired or same, the court may:
not. a. DISMISS the case outright based on
Previous demand upon Previous demand to the grounds for dismissal for
defendant to vacate not vacate required ordinary civil actions apparent in
required. (jurisdictional). the complaint, or
The plaintiff must The plaintiff need not
b. ISSUE SUMMONS, if the no ground
allege and prove that be in prior physical
he was in prior possession.
for dismissal is found. [Rule 70.5]
physical possession of  Cases requiring referral to
the premises until conciliation, where there is no
deprived thereof. showing of compliance with such
1-year period counted 1-year period counted requirement, shall be dismissed
from date of actual from date of last without prejudice, and may be
entry on the land. demand or last letter revived only after that requirement
of demand. have been complied with. [Rule
70.12]
D. Pleadings
3. The defendant shall file his ANSWER
 Must be verified. [Rule 70.4] and serve a copy of it to the plaintiff
 Allowed pleadings [Rule 70.4]: within 10 days from service of
a. Complaint summons. [Rule 70.6]
b. Compulsory Counterclaim pleaded  Failure of the defendant to answer
in the answer within the period provided above
c. Cross-claim pleaded in the answer

Page 103 of 370

REVIEWER IN REMEDIAL LAW
shall give power to the court, motu
propio or on motion, to render
judgment as may be warranted by
the facts alleged in the complaint
and limited to what is prayed for
therein. [Rule 70.7]
 Affirmative and negative defenses
not pleaded in the answer are
deemed waived.
o EXCEPTION: lack of jurisdiction
over the subject matter.
 Cross-claims and compulsory
counterclaims not pleaded in the
answer shall be barred.
o Answers to the counterclaims or
cross-claims shall be served and
filed within 10 days from service
of the answer in which they are
pleaded.
 When the defendant raises the
defense 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. [Rule 70.16]
 Where there is a defense of tenancy,
there must be a preliminary hearing
on the question of tenancy relations.
(Bayog v. Natino, 1996) If there is a
prima facie showing of tenancy, the
court should dismiss the case for
lack of jurisdiction (jurisdiction
belongs to the DARAB). (Baranda v.
Padios, 1987)
4. Not later than 30 days after the last
answer is filed, a PRELIMINARY
CONFERENCE shall be held.
 Rule 18 applicable.
 Effects of failure to appear:
WHEN THE WHEN THE
PLAINTIFF DOES NOT DEFENDANT DOES
APPEAR NOT APPEAR
It shall be a cause for
the dismissal of his
complaint.
All cross-claims shall
be dismissed.
The defendant who The plaintiff shall be
appears in the absence entitled to judgment.
of the plaintiff shall be (This is true when there
entitled to the is only one defendant
judgment on his or when all of the
counterclaim. defendants did
appear.)
Part 4: Special Civil Actions
 GENERAL RULE: No postponement
of the preliminary conference shall
be granted.
CIVIL PROCEDURE
 EXCEPTION: Highly meritorious
grounds and without prejudice to
such sanctions as the court in the
exercise of sound discretion may
impose on the movant. [Rule 70.8]
5. The court shall issue an ORDER
stating matters taken up during the
preliminary conference within 5 days
after the termination of the same.
 Contents of the Order:
a. Whether the parties have arrived
at an amicable settlement, and if
so, 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 b
rendered within 30 days from
issuance of the order;
d. A clear specification of material
facts which remain controverted;
e. Such other matters intended to
expedite the disposition of the
case. [Rule 70.9]
6. The parties shall submit 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 within 10 days from
receipt of the order. [Rule 70.10]
 Affidavits required to be submitted
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.
 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 records.
[Rule 70.14]
not 7. Judgment
 GENERAL RULE: The court shall
render judgment within 30 days
from the date of its receipt of the
affidavits and position papers OR
Page 104 of 370
REVIEWER IN REMEDIAL LAW
the expiration of the period for filing
the same. [Rule 70.11]
 EXCEPTION: Should the court find
it necessary to clarify certain
material facts, it may during the 30-
day 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 10 days from
receipt of said order. Judgment shall
be rendered within 15 days after
receipt of the last affidavit or the
expiration of the period for filing the
same. [Ibid.]
 The court shall not resort to the
foregoing procedure just to gain time
for the rendition of the judgment.
[Id.]
 If the trial court finds that the
allegations of the complaint are
TRUE, it shall render judgment in
favor of the plaintiff for the:
a. restitution of the premises,
b. the just sum due as arrears of
rent or reasonable compensation
for the use and occupation of the
premises.
c. attorney’s fees and costs. [Rule
70.17]
 If the court finds that the allegations
of the plaintiffs are NOT TRUE, it
shall render judgment for the
defendant to recover his costs. [Ibid.]
 The judgment rendered in an action
for forcible entry shall be
conclusive with respect to the
possession only, and it shall not in
any way affect the title or ownership
of the land or building. Hence, such
judgment shall not bar an action
between the same parties with
respect to the title of the land or
building.
 The judgment or final order shall be
appealable to the appropriate RTC.
[Rule 70.18]
8. Execution of judgment
 GENERAL RULE: If judgment is
rendered against a defendant,
execution shall issue immediately.
[Rule 70.19 and 70.21]
 EXCEPTION: Appeal has been duly
perfected by the defendant and bond
has been posted.
 Although immediately executory, the
judge should not order immediate
execution in his decision. (Lu v.
Siapno, 2000) There must be notice
Part 4: Special Civil Actions
of the judgment (Dy v. CA, 1991)
and a motion with notice to the
adverse party. (Kaw v. Anunciacion,
CIVIL PROCEDURE
1995)
 Procedure for staying the execution
of judgment:
a. defendant perfects his appeal in
due time;
b. defendant files a sufficient
supersedeas bond approved by
the Municipal Trial Court; and
c. during the pendency of the
appeal, he deposits with the
appellate court the amount of
rent due from time to time under
the contract, if any, on or before
the 10th day of each succeeding
month. [Rule 70.19]
 BUT upon motion of the plaintiff
within 10 days from the perfection
of the appeal to the RTC, the court
may still issue a preliminary
mandatory injunction to restore the
plaintiff in possession if the court is
satisfied that the defendant’s appeal
is frivolous or dilatory, or that the
appeal of the plaintiff is prima facie
meritorious. [Rule 70.20]
F. Preliminary Injunction
 The court may grant preliminary
injunction in accordance with Rule 58
to prevent the defendant from
committing further acts of
dispossession against the plaintiff.
 A possessor deprived of his possession
may moved for a preliminary
mandatory injunction within 5 days to
restore him in hi possession of the
property. The court then shall decide
the motion within 30 days from the
filing thereof. [Rule 70.15]
G. Matters Not Constituting
Prejudicial Question to
Ejectment
(Arcal vs. Court of Appeals, 1998)
 Injunction suits instituted in the RTC by
defendants in ejectment actions in the
municipal trial courts or other courts of
the first level (Nacorda v. Yatco, 17
SCRA 920 [1996] do not abate the latter,
and neither do proceedings on
consignation of rentals (Lim Si v. Lim, 98
Phil. 868 [1956]
 An ‘accion publiciana’ does not suspend
an ejectment suit against the plaintiff in
Page 105 of 370
REVIEWER IN REMEDIAL LAW
the former (Ramirez v. Bleza, 106 SCRA
187 [1981].
 A ‘writ of possession case’ where
ownership is concededly the principal
issue before the Regional Trial Court
does not preclude nor bar the execution
of the judgment in an unlawful detainer
suit where the only issue involved is
the material possession or possession
de facto of the premises (heirs of F.
Guballa, Sr. v, C.A., 168 SCRA 139
[1988].
 An action for quieting of title to the
property is not a bar to an ejectment
suit involving the same property
(Quimpo v. de la Victoria, 46 SCRA 139
[1972].
 Suit for specific performance with
damages do not affect ejectment actions
(e.g., to compel renewal of lease
contract) (Desamito v. Cuyegkeng, 18
SCRA 1184 [1966]; (Asked in the 2000
Bar Exam)
 An action for reformation of instrument
(e.g. from deed of absolute sale to one of
sale with pacto de retro ) does not
suspend an ejectment suit between the
same parties (Judith v. Abragan, 66
SCRA 600 [1975].
 An action for reconveyance of property
or ‘accion reivindicatoria’ also has no
effect on ejectment suits regarding the
same property (Del Rosario v. Jimenez,
8 SCRA 549 [1963
 Neither do suits for annulment of sale,
or title, or document affecting property
operate to abate ejectment actions
respecting the same property (Salinas v.
Navarro [annulment of deed of sale with
assumption of mortgage and/or to
declare the same an equitable mortgage],
126 SCRA 167 [1983]; Ang ping v. RTC
[annulment of sale of title], 154 SCRA
153 [1987]; Caparros v. C.A. [annulment
of title], 170 SCRA 758 (1989]; Dante v.
Sison [annulment of sale with damages]
174 SCRA 517; Galgala v. Benguet
Consolidated, Inc. [annulment of
document], 177 SCRA 288 [1989]).
X. CONTEMPT
A. Definition
 Contempt of court is a defiance of the
authority, justice or dignity of the court,
such conduct as tends to bring the
authority and administration of the law
into disrespect of, to interfere with, or
Part 4: Special Civil Actions
prejudice parties litigant or their
witnesses during litigation.
 It is defined as a disobedience to the
CIVIL PROCEDURE
court by setting up an opposition to its
authority, justice and dignity.
 It signifies not only a willful disregard or
disobedience to the court’s order but
such conduct as tends to bring the
authority of the court and the
administration of law into disrepute or
in some manner to impede the due
administration of justice. (Heirs of
Trinidad de Leon Vda. de Ramos v. Court
of Appeals, 2004)
 Direct Contempt (Contempt In Facie
Curiae) – a misbehavior committed in
the presence of or so near a court or
judge so as to obstruct or interrupt the
proceedings before the same, including:
 disrespect toward the court
 offensive personalities toward others
 refusal to be sworn or to answer as
a witness or to subscribe an
affidavit/deposition when lawfully
required to do so.
 can be punished summarily without
hearing.
 It is conduct directed against or
assailing the authority and dignity
of the court or a judge, or in the
doing of a forbidden act. [Encinas v.
National Bookstore, 2005; Rule 71.1]
 Indirect Contempt (Constructive
Contempt)
 a misbehavior perpetrated outside of
the sitting of the court [Patricio v.
Suplico, 1991];
 Acts of indirect contempt:
a. Misbehavior of an officer of the 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 to 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;
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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions
d. Any improper conduct tending, f. Failure to obey a subpoena duly
directly or indirectly, to impede, served;
obstruct or degrade the administration g. The rescue or attempted rescue, of a
of justice; person or property in the custody of an

CIVIL PROCEDURE
e. Assuming to be an attorney or an officer by virtue of an order or process
officer of the court, and acting as such of a court held by him. [Rule 71.3]
without authority;
DIRECT CONTEMPT INDIRECT CONTEMPT
How  Can be committed only in the presence of  Can be committed anywhere as long as the
Committed or so near a court or judge. acts mentioned in Sec. 3 are done.
Nature of  The person guilty of misbehavior is  The person guilty of misbehavior may be
Proceedings summarily adjudged by the court against punished only after charge in writing has
which the contempt was committed at the been filed, and an opportunity given to the
very moment of the perpetration. accused to be heard by himself or counsel
[Rule 71.1] [Rule 71.3]
Punishment  If the contempt is directed against an RTC,  If the contempt is directed against an RTC,
a court of equivalent or higher rank: a court of equivalent or higher rank:
 FINE = not exceeding P2,000; or  FINE = not exceeding P30,000; or
 IMPRISONMENT = not exceeding 10 days;  IMPRISONMENT = not exceeding 6 months;
or both or both
 If the contempt is directed against a lower  If contempt is directed against a lower
court: court:
 FINE = not exceeding P200; or  FINE = not exceeding P5,000; or
 IMPRISONMENT = not exceeding 1 day; or  IMPRISONMENT = not exceeding 1 month;
both or both
[Rule 71.1] [Rule 71.7]
How  Summarily adjudged by the court against  By the court motu propio thru an ORDER or
proceedings which the contempt is directed and any FORMAL CHARGE
commenced punished there and then.  In all other cases, by a VERIFIED
[Rule 71.1] PETITION.
 (If the contempt charges arose out of or are
related to a principal action pending in the
court, the petition for contempt shall allege
that fact, but said petition shall be
docketed, heard and decided separately,
unless the court in its discretion orders the
consolidation of the contempt charge and
the principal action for joint hearing and
decision.)
[Rule 71.4]
 Remedy  No appeal, but subject to certiorari or  May be appealed to the proper court as in
prohibition. criminal cases, but execution shall not be
[Rule 71.2] suspended until BOND is filed.
[Rule 71.11]

Procedure for Indirect Contempt

[Secs. 4-6]
WHO COURT MOTU PROPIO PARTY
INITIATES
How it is  By ORDER or any WRITTEN  By a VERIFIED PETITION with supporting particulars
initiated CHARGE requiring respondent and certified true copy of documents or papers involved
to show cause why he should and full compliance with the requirements for filing
not be held in contempt. initiatory pleadings in ordinary civil actions.

Where it is  When the contempt is directed against an RTC or equivalent or higher rank:
initiated  Same court

 When the contempt is directed against a lower court:

(1) RTC of the place where the lower court is sitting; or
(2) in same lower court subject to appeal to higher court

Hearing and  If hearing is not immediately conducted, respondent may be released upon filing of BOND in the
Bail amount fixed by the court.
Appeal  Appeal may be taken in proper courts as in criminal cases.
Execution of  Execution of judgment shall not be suspended even by appeal UNLESS bond is filed conditioned
Judgment upon the performance by the respondent of that judgment should it be decided against him on
appeal.

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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions
 TWO ASPECTS OF CONTEMPT OF authorized to punish a contempt
COURT: against another. [Igot v. Meralco, 200)]
a. Civil Contempt is the failure to do

CIVIL PROCEDURE
something ordered to be done by a  Quasi-judicial agencies that have the
court or a judge for the benefit of power to cite persons for indirect
the opposing party therein. [People contempt pursuant to Rule 71 can only
v. Godoy, 1995]; do so by initiating them in the proper
b. remedial or compensatory in RTC. It is not within their jurisdiction
nature; instituted for the benefit of and competence to decide the indirect
private party. contempt cases. These matters are still
c. Criminal Contempt is conduct within the province of the RTCs.
directed against the authority and [LandBank v. Listana, 2003]
dignity of a court or of a judge, as in
unlawfully assailing or discrediting
the authority and dignity of a court
or a judge or in doing a forbidden
act [People v. Godoy, 1995];
punitive in nature, thus, the
proceedings are to be conducted in
accordance with the principles and
rules applicable to criminal cases
[SEC v. Recto, 1999].
 The violation of a TRO issued by the
SEC or any quasi-judicial tribunal is
criminal contempt so that acquittal of
the respondents is unappealable. [SEC
v. Recto, 1999]

 A writ of execution issued by a court

after 5 years from entry of final
judgment is void, and disobedience
thereto does not constitute indirect
contempt. [Crucillo v. IAC, 1999]

 The power to declare a person in

contempt of court serves to protect and
preserve the dignity of the court, the
solemnity of the proceedings therein
and the administration of justice.
 But this must be wielded sparingly. For
this power should be exercised on the
preservative and not on the vindictive
principle.
 Only occasionally should the court
invoke its inherent power in order to
retain that respect without which the
administration of justice must falter or
fail. [Panado v. CA, 1998]

 Only the court which rendered the order

commanding the doing of a certain act
is vested with the right to determine
whether or not the order has been
complied with, or whether a sufficient
reason has been given for non-
compliance, and, therefore, whether a
contempt has been committed.
 The power to determine the existence of
contempt of court rests exclusively with
the court contemned. No court is

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REVIEWER IN REMEDIAL LAW
Part 5:
Remedies and Appeals
I. KINDS
A. Before Finality
B. After Finality
II. RECONSIDERATION AND NEW TRIAL
A. Rules
B. Motion for Reconsideration
C. Motion for New Trial
III. APPEAL
IV. MODES OF APPEAL
A. MTC to RTC
B. MTC to RTC to CA
C. MTC to RTC to CA to SC
D. MTC to SC
E. RTC to CA
F. RTC to CA to SC
G. RTC to SC
H. CA to SC
I. QJA to CA
J. QJA to CA to SC
K. QJA to SC
V. RULES
A. General Rule
1. Procedure in the CA
2. Procedure in the SC
B. Questions of Fact vs. Questions of
Law
C. Notice of Appeal
D. Record on Appeal
E. Perfection of Appeal
F. Period to Appeal
VI. SPECIAL TOPIC: REMEDIES FROM A
VOID JUDGMENT
I. KINDS
A. Before Finality
The following are the remedies
finality of judgment:
1. Motion for Reconsideration
2. Motion for New Trial
3. Appeal
B. After Finality
Petition for Relief from Judgment
Q: Define relief from judgment.
A: It is a legal remedy whereby a party
seeks to set aside a judgment rendered
against him by a court whenever he is
unjustly deprived of a hearing or was
prevented from taking an appeal because of
fraud, accident, mistake or excusable
negligence.
Francisco vs. Puno: A party who has filed a
timely motion for new trial or motion for
reconsideration can no longer file a petition
for relief from judgment after his motion
has been denied. These remedies are
Part 4: Special Civil Actions
mutually exclusive. It is only in appropriate
cases where a party aggrieved by the
judgment has not been able to file a motion
CIVIL PROCEDURE
for new trial or motion for reconsideration
that a petition for relief can be filed.
Grounds:
Rule 38, Sec.1. Petition for relief from judgment,
order, or other proceedings.—When a judgment
or final order is entered, or any other proceeding
is thereafter taken against a party in any court
through fraud, accident, mistake, or excusable
negligence, he may file a petition in such court
and in the same case praying that the judgment,
order or proceeding be set aside.
Rule 38, Sec.2. Petition for relief from denial of
appeal.—When a judgment of final order is
rendered by any court in a case, and a party
thereto, by fraud, accident, mistake, or
excusable negligence, has been prevented from
taking an appeal, he may file a petition in such
court and in the same case praying that the
appeal be given due course.
Under both grounds, the petition shall be
filed in the same court which rendered
the judgment and in the very same case.
Prayer in petition for relief from judgment:
1. That the judgment/order/proceeding be
set aside;
2. That the appeal be given due course.
When to file:
Rule 38, Sec.3. Time for filing petition; contents
and verification.—A petition provided for in
either of the preceding sections of this Rules
must be verified, filed within 60 days after the
before petitioner learns of the judgment, final order, or
other proceeding to b set aside, and not more
than 6 months after such judgment or final
order was entered, or such proceeding was
taken; and must be accompanied with affidavits
showing the fraud, accident, mistake, or
excusable negligence relied upon, and the facts
constituting the petitioner’s good and
substantial cause of action or defense, as the
case may be.
 Within 60 days from knowledge of
judgment or order or proceedings to be
set aside.
 Not more than 6 months from the entry
of such judgment or order or
proceeding.
 Both periods must concur. They are
also non-extendible and never
interrupted.
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REVIEWER IN REMEDIAL LAW
Form and content of petition:
1. Must be verified;
2. Must be accompanied by an affidavit
showing the fraud, accident, mistake or
excusable negligence relied upon;
3. The affidavit of merit accompanying the
petition must also show the facts
constituting the petitioner’s good and
substantial cause of action or defense.
 An affidavit of merit serves as the
jurisdictional basis for the court to
entertain a petition for relief. However,
it is not a fatal defect to warrant
denial of the petition so long as the
facts required to be set out also appear
in the verified petition.
 When an affidavit of merit is not
necessary:
1. When there is lack of jurisdiction
over the defendant;
2. When there is lack of jurisdiction
over the subject matter;
3. When judgment was taken by
default;
4. When judgment was entered by
mistake or was obtained by fraud;
or
5. Other similar cases.
Two hearings in a petition for relief from
judgment:
1. Hearing to determine whether or not the
judgment should be set aside;
2. If #1 is in the affirmative, hearing upon
the merits of the case.
Other remedies after finality of judgment:
1. Action to Annul a Judgment
2. Certiorari
3. Collateral Attack of a Judgment that is
Void on its Face
II. RECONSIDERATION AND NEW
TRIAL
A. Rules
Provisions common to motion for new trial
and motion for reconsideration.:
When to file:
Rule 37, Sec.1. Grounds of and period for filing
motion for new trial or reconsideration.—Within
the period for taking an appeal, the aggrieved
party may move the trial court to set aside the
judgment or final order and grant a new trial for
one or more of the following causes materially
affecting the substantial rights of said party:
Part 4: Special Civil Actions
(a) Fraud, accident, mistake or excusable
negligence which ordinary prudence could
not have guarded against and by reason of
CIVIL PROCEDURE
which such aggrieved party has probably
been impaired in his rights; or
(b) Newly discovered evidence, which could
not, with reasonable diligence, have
discovered and produced at the trial, and
which if presented would probably alter the
result.
Within the same period, the aggrieved party may
also move for reconsideration upon the grounds
that the damages awarded are excessive, that
the evidence is insufficient to justify the decision
or final order, or that the decision or final order
is contrary law.
 Motion must be filed within the period
for appeal.
 The period for appeal is within 15 days
after notice to the appellant of the
judgment or final order appealed from.
 The 15-day period is deemed to
commence upon receipt by the counsel
of record, which is considered notice to
the parties. Service upon the parties
themselves is prohibited and is not
considered as official receipt of
judgment.
 No motion for extension of time shall be
allowed.
 Where a ROA is required, the appellant
shall file:
1. a notice of appeal, and
2. record on appeal within 30 days
from notice of the judgment or final
order.
 A record on appeal is required only in:
1. Special proceedings;
2. Other cases of multiple or separate
appeals.
Effect of filing:
The filing of a timely motion interrupts the
period to appeal.
Fresh period rule:
Neypes vs. CA (2005): If the motion is
denied, the movant has a “fresh period” of
15 days from receipt or notice of the order
denying the motion for new trial or motion
for reconsideration within which to file an
appeal. This applies to Rules 40, 41, 42, 43
and 45.
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REVIEWER IN REMEDIAL LAW
Resolution of the motion:
Rule 37, Sec.4. Resolution of motion.—A motion
for new trial or reconsideration shall be resolved
within 30 days fromteh time it is submitted for
resolution.
Rule 37, Sec.9. Remedy against order denying a
motion for new trial or reconsideration.—An order
denying a motion for new trial or reconsideration
is now appealable. (As modified by AM 07-7-12)
 The motion shall be resolved within 30
days from the time it is submitted for
resolution.
 No appeal may be taken from an order
denying a motion for reconsideration or
new trial.
 Remedy if motion is denied:
1. To appeal from the judgment or final
order itself.
2. The order denying the motion for
new trial or reconsideration may
itself be assailed by a petition for
certiorari under Rule 65.
 Habaluyas vs. Japson (1986): A motion
for new trial or reconsideration is not a
prerequisite to an appeal, a petition for
review or a petition for review on
certiorari. And since the purpose is to
expedite the final disposition of cases, a
strict but prospective application of said
ruling is in order.
Rule 37, Sec.2. Contents of motion for new trial
or reconsideration.—The motion shall be made in
writing stating the ground or grounds therefor, a
written notice of which shall be served by the
movant on the adverse party.
A motion for new trial shall be proved in the
manner provided for proof of motions. A motion
for the cause mentioned in paragraph (a) of the
preceding section shall be supported by
affidavits of merits which may be rebutted by
affidavits. A motion for the cause mentioned in
paragraph (b) shall 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
in evidence.
A motion for reconsideration shall point out
specifically the findings or conclusions of te
judgment or final order which are not supported
by the evidence or which are contrary to law,
making express reference to the testimonial or
documentary evidence or to the provisions of law
alleged to be contrary to such findings or
conclusions.
Part 4: Special Civil Actions
A pro forma motion for new trial or
reconsideration shall not toll the reglementary
period of appeal.
CIVIL PROCEDURE
B. Motion for Reconsideration
 A motion for reconsideration under Rule
37 is directed against a judgment or
final order.
 It is not the motion for reconsideration
of interlocutory order, which often
precedes a petition for certiorari under
Rule 65.
 It does not apply to cases that fall under
Summary Procedure.
Grounds for a motion for reconsideration:
1. The evidence is insufficient to justify the
decision;
2. The damages awarded are excessive;
3. The decision or final order is contrary to
law.
Form and content of a motion for
reconsideration:
 Motion for reconsideration must be in
writing, a written notice of which
must be served on the adverse party.
 It is not sufficient to mention the
ground relied upon. It is necessary for
the motion for reconsideration to point
out specifically the findings or
conclusions of the judgment or final
order which are not supported by the
evidence or which are contrary to
law, making express reference to the
testimonial or documentary evidence or
to the provisions of law alleged to be
contrary to such findings or
conclusions.
 Non-compliance with this requirement
would reduce the motion to a mere pro
forma motion, which shall not toll the
period for appeal.
Effects:
Rule 37, Sec.3. Action upon motion for new trial
or reconsideration.—The trial court may set aside
the judgment or final order and grant a new
trial, upon such terms as may be just, or may
deny the motion. If the court finds that excessive
damages have been awarded or that the
judgment or final order is contrary to the
evidence or law, it may amend such judgment or
final order accordingly.
 Grant of motion for reconsideration: the
court may amend the judgment or final
order accordingly.
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REVIEWER IN REMEDIAL LAW
 The amended judgment is in the nature
of a new judgment, which supersedes
the original judgment.
 Denial of motion for reconsideration:
the judgment or final order shall stand
as is.
Rule 37, Sec.7. Partial new trial or
reconsideration.—If the grounds for a motion
under this Rule appear to the court to affect the
issues as to only a part, or less than all of the
matter in controversy, or only one, or less than
all, of the parties to it, the court may order a
new trail or grant reconsideration as to such
issues if severable without interfering with the
judgment or final order upon the rest.
If the court finds that a motion affects less
than all of the matters in controversy or
less than all of the parties to it, the order
may grant a motion for reconsideration as
to such issues if severable without
interfering with the judgment or final order
upon the rest.
XXX
Single motion rule:
Rule 37, Sec.5. Second motion for new trial.—A
motion for new trial shall include all grounds
then available and those not so included shall be
deemed waived. A second motion for new trial
based on a ground not existing or available
when the first motion was made, may be filed
within the time herein provided excluding the
time during which the first motion had been
pending.
No party shall be allowed a second motion for
reconsideration of a judgment or final order.
 A party shall not be allowed to file a
second motion for reconsideration of a
judgment or final order.
 The prohibition on a second motion
does not apply to a motion for
reconsideration of an interlocutory
order.
C. Motion for New Trial
The aggrieved party may move the trial
court to set aside the judgment or final
order and grant a new trial for one or more
of the following causes materially affecting
the substantial rights of the said party:
1. FAME (Extrinsic Fraud, Accident,
Mistake or Excusable Negligence) which
ordinary prudence could not have
guarded against and by reason of which
the aggrieved party has probably been
impaired in his rights.
Part 4: Special Civil Actions
i. The motion shall be supported by
affidavits of merit. Non-compliance
with this requirement would reduce
CIVIL PROCEDURE
the motion to a mere pro forma
motion.
ii. The affidavits of merit must show
the facts (not mere conclusions or
opinions) constituting the valid
cause of action or defense which the
movant may prove in case a new
trial is granted. Otherwise, if the
complaint is after all groundless or
the defense is ineffective, a new trial
would serve no purpose.
2. Newly discovered evidence, which he
could not, with reasonable diligence,
have discovered and produced at the
trial, and which if presented would
probably alter the result.
i. The motion shall be supported by:
affidavits of the witnesses by whom
such evidence is expected to be
given; and/or duly authenticated
documents which are proposed to be
introduced in evidence.
ii. Non-compliance with this
requirement would reduce the
motion to a mere pro forma motion.
Tumang vs. CA: Newly discovered evidence
may and does commonly refer to evidence
already in existence prior to or during trial
but which could not have been secured and
presented during the trial despite
reasonable diligence on the part of the
litigant.
Extrinsic fraud: any fraudulent scheme
executed by the prevailing party outside of
the trial against the losing party who,
because of such fraud, was prevented from
presenting his side of the case.
Intrinsic fraud: acts of a party during the
trial which does not affect the presentation
of the case.
Accident: an event that occurs without
one’s foresight or expectation.
Mistake: generally, mistakes of facts or law
where, in good faith, the defendant was
misled in a case.
Effects:
a. Grant of motion for new trial: the
original judgment shall be vacated, and
the action shall stand for trial de novo.
The recorded evidence upon the former
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REVIEWER IN REMEDIAL LAW
trial shall be used at the new trial
without retaking them (if they are
material and competent).
b. Denial of motion for new trial: the
judgment or final order shall stand as is
if the court finds that a motion affects
the issues of the case as to only a part
or less than all of the matters in
controversy, or only one or less than all
of the parties to it, the order may grant
a reconsideration as to such issues if
severable without interfering with the
judgment or final order upon the rest.
Rule 37, Sec.8. Effect of order for partial new
trial.—When less than all of the issues are
ordered retried, the court may either enter a
judgment or final order as to the rest, or stay the
enforcement of such judgment or final order
until after the new trial.
 The effect of this order is a partial new
trial.
 When there is an order for partial new
trial, the court may either enter a
judgment or final order as to the rest, or
stay the enforcement of such judgment
or final order until after the new trial.
X
When a second motion for new trial is
permissible: a motion for new trial shall
include all grounds then available. Those
not so included are deemed waived.
However, when a ground for new trial was
not existing or available when the first
motion was made, a second motion for new
trial may be filed.
III.APPEAL
RULE 41 (as amended by A.M. 07-07-12,
2007)
SECTION 1. Subject of appeal. An appeal may
be taken from a judgment or final order that
completely disposes of the case, or of a
particular matter therein when declared by these
Rules to be appealable.
No appeal may be taken from:
a. An order denying a petition for relief or any
similar motion seeking relief from judgment;
b. An interlocutory order;
c. An order disallowing or dismissing an
appeal;
d. An order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud, mistake
or duress, or any other ground vitiating
consent;
e. An order of execution;
f. A judgment or final order for or against one
or more of several parties or in separate
claims, counterclaims, cross-claims and
Part 4: Special Civil Actions
third-party complaints, while the main case
is pending, unless the court allows an
appeal therefrom; and
g. An order dismissing an action without
CIVIL PROCEDURE
prejudice.
In any of the foregoing circumstances, the
aggrieved party may file an appropriate special
civil action as provided in Rule 65.
SIGNIFICANCE OF THE AMENDMENT:
An order denying motion for new trial or
reconsideration is NOW APPEALABLE!
Perfection of appeal:
Balgami vs. CA (2004): Perfection of an
appeal in the manner and within the period
laid down by law is mandatory and
jurisdictional.
Rationale:
Appeal is merely a statutory privilege,
and may be exercised only in the
manner and in accordance with the
provisions of the law. It is neither a
natural right nor a part of due process.
Cognizable judgments/issues
 Appellate court has no jurisdiction to
review a judgment which is immediately
final and executory by express provision
of law. [Republic v. Bermudez-Lorino
(2005)]
 Rationale: Appeal is merely a privilege
conferred by law upon the litigants.
 A party cannot change the theory on
appeal. Only issues pleaded in the lower
court and properly raised may be
resolved by the appellate court. [Medina
v. CA (1992)]
 However, issues which are inferred from
or necessarily connected with the issue
properly raised and pleaded may be
resolved by the appellate court. [Espina
v. CA (1992)]
Effect of failure to perfect appeal:
1. Defeats a party’s right to appeal.
2. Precludes appellate court from
acquiring jurisdiction.
Camposagrado vs. Camposagrado (2005):
Failure to pay the appellate court docket fee
within the reglementary period confers only
a discretionary (not mandatory) power to
dismiss the proposed appeal. Such
discretion should consider all attendant
circumstances and must be exercised with
a view to substantial justice.
Republic v. Bermudez-Lorino (2005):
Appellate court has no jurisdiction to review
Page 113 of 370
REVIEWER IN REMEDIAL LAW
a judgment which is immediately final and
executory by express provision of law.
Rationale: Appeal is merely a privilege
conferred by law upon the litigants.
Medina vs. CA (1992): A party cannot
change the theory on appeal. Only issues
pleaded in the lower court and properly
raised may be resolved by the appellate
court.
Espina vs. CA (1992): However, issues
which are inferred from or necessarily
connected with the issue properly raised
and pleaded may be resolved by the
appellate court.
IV. MODES OF APPEAL
A. MTC to RTC
Rule 40, Sec.1. Where to appeal.—An appeal
from a judgment or final order of a MTC may be
taken to the RTC exercising jurisdiction over the
area to which the former pertains. The title of
the case shall remain as it was in the court of
origin, but the party appealing the case shall be
further referred to as the appellant and the
adverse party the appellee.
 Appeal from a judgment or final order of
a MTC may be taken to the RTC
exercising jurisdiction over the area
which the former pertains through
notice of appeal or in special
proceedings and in other cases of
multiple or separate appeals by record
on appeal.
 The other provisions governing appeal
from RTC to CA so long as they are not
inconsistent are applicable to appeal
from MTC to RTC.
B. MTC to RTC to CA
Rule 42. Sec.1. How appeal taken; time for
filing.—A party desiring to appeal from a
decision of the RTC rendered in the exercise of
its appellate jurisdiction may file a verified
petition for review with the CA, paying at the
same time to the clerk of said court the
corresponding docket and other lawful fees,
depositing the amount of P500.00 for costs and
furnishing the RTC and the adverse party with a
copy of the petition. The petition shall be filed
and served within 15 days from notice of the
decision sought to be reviewed or of the denial of
petitioner’s motion for new trial or
reconsideration filed in due time after judgment.
Upon proper motion and the payment of the full
amount of the docket and other lawful fees and
Part 4: Special Civil Actions
the deposit for costs before the expiration of the
reglementary period, the CA may grant an
additional period of 15 days only within which to
file the petition for review. No further extension
CIVIL PROCEDURE
shall be granted except for the most compelling
reason and in no case to exceed 15 days.
(Asked in the 1999 and 2002 Bar Exam)
PETITION FOR REVIEW FROM RTC TO
CA [Rule 42]
APPLICABILITY - Appeal of RTC decision
rendered in exercise of appellate
jurisdiction [Rule 42, Sec. 1]
CERTIFICATE OF NON-FORUM
SHOPPING (CNFS)- Petitioner in a petition
for review in CA/SC must submit a CNFS
with the petition. However, this rule is
relaxed where there is need to conduct a
review. In those instances, petitioner may
comply with the requirement after he has
filed the petitions. [Rule 42, Sec.1]
C. MTC to RTC to CA to SC
Rule 41. Sec.2(c). Appeal by certiorari.—In all
cases where only questions of law are raised or
involved, the appeal shall be to the SC by
petition for review on certiorari in accordance
with rule 45.
Rule 45, Sec.1. Filing of petition with Supreme
Court.—A party desiring to appeal by certiorari
from a judgment or final order or resolution of
the CA, the Sandiganbayan, the RTC or other
courts whenever authorized by law, may file with
the SC a verified petition for review on certiorari.
The petition shall raise only questions of law
which must be distinctly set forth.
(Asked in the 2002 Bar Exams)
 Where only questions of law are
raised/involved.
 Appeal by certiorari from a judgment or
final order or resolution of CA or
Sandiganbayan or RTC or other courts
whenever authorized by law.
 No appeal may be taken from:
1. An order denying a petition for relief
or any similar motion seeking relief
from judgment;
2. An interlocutory order;
3. An order disallowing or dismissing
an appeal;
4. An order denying a motion to set
aside a judgment by consent,
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REVIEWER IN REMEDIAL LAW
confession or compromise on the
ground of fraud, mistake or duress,
or any other ground vitiating
consent;
5. An order of execution;
6. A judgment or final order for or
against one or more of several
parties or in separate claims,
counterclaims, cross-claims and
third party complaints, while the
main case is pending, unless the
court allows an appeal therefrom;
and
7. An order dismissing an action
without prejudice.
 In any of the foregoing circumstances,
the aggrieved party may file an
appropriate special civil action as
provided in Rule 65.
 A party desiring to appeal by certiorari
from a judgment, final order or
resolution of the Court of Appeals, the
Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or
other courts, whenever authorized by
law, may file with the Supreme Court a
verified petition for review on certiorari.
The petition may include an application
for a writ of preliminary injunction or
other provisional remedies and shall
raise only questions of law, which must
be distinctly set forth. The petitioner
may seek the same provisional remedies
by verified motion filed in the same
action or proceeding at any time during
its pendency.
Applicability of Rule 45:
Rule 45, Sec.9. Rule applicable to both civil and
criminal cases.—The mode of appeal prescribed
in this Rule shall be applicable to both civil and
criminal cases, except in criminal cases where
the penalty imposed is death, reclusion perpetua
or life imprisonment.
Filing of petition:
 File with the SC a verified petition for
review on certiorari.
 In 18 copies, with the original copy
intended for the court being indicated
as such by the petitioner.
 Petition shall raise only questions of law
which must be distinctly set forth.
Contents of petition:
1. Full name of the appealing party
(petitioner) and the adverse party
(respondent).
Part 4: Special Civil Actions
2. Without impleading the lower court or
judges as petitioners/respondents.
3. Material dates:
CIVIL PROCEDURE
i. When notice of the judgment or final
order or resolution subject thereof
was received;
ii. When a motion for new trial or
reconsideration (if any) was filed and
when notice of the denial thereof
was received.
4. Concise statement of the matters
involved, and the reasons/arguments
relied on for the allowance of the
petition;
5. A clearly legible duplicate original, or a
certified true copy of the judgment or
final order or resolution certified by the
clerk of court of the court a quo and the
requisite number of plain copies thereof,
and such material portions of the record
as would support the petition;
6. Certificate of non-forum shoping.
 File petition within 15 days from notice
of the judgment or final order or
resolution appealed from, or of the
denial of the petitioner's motion for new
trial or reconsideration filed in due time
after notice of the judgment.
 On motion duly filed and served, with
full payment of the docket and other
lawful fees and the deposit for costs
before the expiration of the
reglementary period, the SC may for
justifiable reasons grant an extension of
30 days only within which to file the
petition.
Rule 45, Sec.3. Docket and other lawful fees;
proof of service of petition.—Unless he has
theretofore done so, the petitioner shall pay the
corresponding docket and other lawful fees to
the clerk of court of the Supreme Court and
deposit the amount of P500.00 for costs at the
time of the filing of the petition. Proof of service
of a copy thereof on the lower court concerned
and on the adverse party shall be submitted
together with the petition.
Payment of docket and other lawful fees:
Unless he has theretofore done so, the
petitioner shall pay the docket and other
lawful fees to the SC clerk of court and
deposit P500 for costs at the time of the
filing of the petition.
Proof of service of petition:
Proof of service of a copy on the lower court
and on the adverse party shall be
submitted together with the petition.
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REVIEWER IN REMEDIAL LAW
Dismissal or denial of petition:
Rule 45, Sec.5. Dismissal or denial of petition.—
The failure of the petitioner to comply with any
of the foregoing requirements regarding the
payment of the docket and other lawful fees,
deposit for costs, proof of service of the petition,
and the contents of and the documents which
should accompany the petition shall be
sufficient ground for the dismissal thereof.
The SC may on its own initiative deny the
petition on the ground that the appeal is without
merits, or is prosecuted manifestly for delay, or
that the questions raised therein are too
unsubstantial to require consideration.
 Failure of the petitioner to comply with
any of the requirements regarding the
payment of the docket and other lawful
fees, deposit for costs, proof of service of
the petition, and the contents of and the
documents which should accompany
the petition, shall be sufficient ground
for the dismissal thereof.
 SC may on its own initiative deny the
petition on the ground that:
1. The appeal is without merit;
2. The appeal is prosecuted manifestly
for delay;
3. The questions raised therein are too
unsubstantial to require
consideration.
Review is discretionary:
 A review is not a matter of right, but of
sound judicial discretion, and will be
granted only when there are special and
important reasons therefore.
 The following, while neither controlling
nor fully measuring the court's
discretion, indicate the character of
reasons which will be considered:
1. When the court a quo has decided a
question of substance, not
theretofore determined by the SC, or
has decided it in a way probably not
in accord with law or with the
applicable decisions of the SC; or
2. When the court a quo has so far
departed from the accepted and
usual course of judicial proceedings,
or so far sanctioned such departure
by a lower court, as to call for an
exercise of the power of supervision.
May require pleadings and documents:
Rule 45, Sec.7. Pleadings and documents that
may be required; sanctions.—For purposes of
determining whether the petition should be
dismissed or denied pursuant to sec.5 of this
Rule, or where the petition is given due course
Part 4: Special Civil Actions
under sec.8 hereof, the SC may require or allow
the filing of such pleadings, briefs, memoranda
or documents as it may deem necessary within
such periods and under such conditions as it
CIVIL PROCEDURE
may consider appropriate, and impose the
corresponding sanctions in case of non-filing or
unauthorized filing of such pleadings and
documents or non-compliance with the
conditions therefor.
For purposes of determining whether or not
the petition should be dismissed or denied
pursuant to Rule 45, Sec.5, or where the
petition is given due course under Sec. 8
hereof, the SC may require/allow the filing
of pleadings or briefs or memoranda or
documents as it may deem necessary, and
impose the sanctions in case of non-filing
or unauthorized filing of such pleadings
and documents or noncompliance with the
conditions therefore.
Due course and elevation of records:
Rule 45, Sec.8. Due course; elevation of
records.—If the petition is given due course, the
SC may require the elevation of the complete
record of the case or specified parts thereof
within 15 days from notice.
D. MTC to SC
 The remedy is a petition for certiorari
under Rule 65.
 This is not an appeal.
E. RTC to CA
Under Rule 41, an appeal of judgment or
final order under that completely disposes
of either:
1. The case;
2. A particular matter in the case, when
declared by ROC to be appealable.
Not appealable under Rule 41:
1. Order denying motion for new trial or
reconsideration;
2. Order denying petition for review or any
similar motion seeking relief from
judgment;
3. Interlocutory order;
4. Order disallowing/dismissing appeal;
5. Order denying motion to set aside
judgment by consent or confession or
compromise on ground of fraud or
mistake or duress or any other vitiation
of consent;
6. Order of execution;
7. While the case is pending, judgment or
final order:
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REVIEWER IN REMEDIAL LAW
i. For/against one or more of several
parties;
ii. In separate claims, counterclaims,
cross-claims, third-party
complaints.
Exception: If court allows appeal.
8. Order dismissing an action without
prejudice.
In the 8 cases not appealable under Rule
41, the aggrieved party may file a special
civil action under Rule 65.
Interlocutory order:
 Definition: Investments, Inc. vs. CA
(1987): If it does not dispose of the case
but leaves something else to be done by
the trial court on the merits of the case.
 For purposes of appeal, an order is final
if it disposes of the entire case.
 GSIS vs. Phil. Village Hotel (2004): An
order for partial summary judgment is
an interlocutory order which cannot be
appealed from. The trial court had not
yet rendered a complete final judgment.
Multiple appeals:
 Civil cases which admit of multiple
appeals:
1. Judgment in an action for recovery
or for partition of property is
separately appealable from the
proceedings on that part of the
judgment wherein accounting for
receipts from the property is ordered
as a primary or incidental relief.
When such accounting is submitted
and either approved or rejected by
the trial court, another appeal lies
therefrom.
2. Special civil actions:
i. Expropriation; (Rule 67)
ii. Judicial partition; (Rule 69)
iii. Judicial foreclosure of mortgage;
(Rule 68)
 Special proceedings also admit of
multiple appeals.
 Ko vs. PNB (2006): The order of
dismissal due to failure to prosecute is
appealable by notice of appeal under
Rule 41.
 Philexport vs. PI (2004): But an order of
dismissal without prejudice is not
appealable under Rule 41.
 Lanaria v. Planta (2007): Submission of
a document together with the motion for
reconsideration constitutes substantial
compliance with compliance with
Section 2, Rule 42 or the requirement
that relevant or pertinent documents be
Part 4: Special Civil Actions
submitted along with the petition, and
calls for the relaxation of procedural
rules
CIVIL PROCEDURE
F. RTC to CA to SC
 The remedy is a petition for review on
certiorari under Rule 45.
G. RTC to SC
 The remedy is a petition for certiorari
under Rule 65.
 This is not an appeal.
H. CA to SC
 The remedy is a petition for review on
certiorari under Rule 65.
I. QJA to CA
Applicability:
Appeals from judgments or final orders of
the CTA and from awards, judgments, final
orders or resolutions of or authorized by
any quasi-judicial agency (QJA) in the
exercise of its quasi-judicial functions:
(arranged alphabetically)
1. Agricultural Inventions Board (AIB);
2. Board of Investments (BOI);
3. Bureau of Patents, Trademarks and
Technology Transfer (BPTTT);
4. Central Board of Assessment Appeals
(CBAA);
5. Civil Aeronautics Board (CAB);
6. Civil Service Commission (CSC);
7. Construction Industry Arbitration
Commission;
8. Department of Agrarian Reform (DAR
under RA 6657)
9. Employees Compensation Commission
(ECC);
10. Energy Regulatory Board (ERB);
11. Government Service Insurance System
(GSIS);
12. Insurance Commission;
13. Land Registration Authority (LRA);
14. National Electrification Administration
(NEA);
15. National Telecommunications
Commission (NTC);
16. Office of the President (OP);
17. Philippine Atomic Energy Commission
(PAEC);
18. Securities and Exchange Commission
(SEC);
19. Social Security Commission (SSC);
20. Voluntary arbitrators authorized by law.
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REVIEWER IN REMEDIAL LAW
Rule 43, Sec.2. Cases not covered.—This Rule
shall not apply to judgments or final orders
issued under the Labor Code of the Philippines.
 Fabian vs. Desierto (1998): NLRC
judgments and final orders or
resolutions are now reviewable, in the
first instance, by the Court of Appeals
on certiorari under Rule 65, but those
of the Employees Compensation
Commission should be brought to the
Court of Appeals through a petition for
review under this Rule. Also, appeals
from the Office of the Ombudsman in
administrative disciplinary cases are
now covered by this Rule.
 RA 9282: Decisions of the CTA are now
appealable to the SC by petition for
review on certiorari under Rule 45.
 Orosa vs. Roa (2006): Resolution of DOJ
Secretary is not appealable under Rule
43. Recourse should be to the
President, instead of the CA, under the
established principle of exhaustion of
administrative remedies.
 Exhaustion of administrative
remedies: If an appeal/remedy obtains
or is available within the administrative
machinery, this should be resorted to
before resort can be made to the courts.
 Villorente vs. Laiya (2005): Under Rule
43, Sec. 4 the petition should be filed
within 15 days from:
1. Notice of the final order;
2. The date of its last publication, if
publication is required by law for its
effectivity;
3. The denial of the petitioner’s MFR
duly filed according to the governing
law of the court or agency a quo.
 Basmayor v. Atencio (2005): Under Rule
43, there is no need to implead the
lower court or agency which rendered
the assailed decision.
 Coca-cola v. Cabalo (2006): Submission
of the duplicate original or certified true
copy of judgment, order, resolution or
ruling subject of a petition for certiorari
is essential to determine whether or not
the court, body or tribunal which
rendered the same indeed committed
grave abuse of discretion. Either a
legible duplicate original or certified
true copy thereof shall be submitted. If
Part 4: Special Civil Actions
what is submitted is a copy, then it is
required that the same is certified by
the proper officer of the court, tribunal,
CIVIL PROCEDURE
agency or office involved. This is to
assure that such copy is a faithful
reproduction of the judgment, order,
resolution or ruling subject of the
petition.
 The remedy of an aggrieved party from a
resolution issued by the CSC is to file a
petition for review thereof
under Rule43 of the Rules of Court
within fifteen days from notice of the
resolution. [DECS v. Cuanan (2008)]
 Recourse to a petition
for certiorari under Rule 65 renders the
petition dismissible for being the wrong
remedy. Nonetheless, there are
exceptions to this rule, to wit: (a) when
public welfare and the advancement of
public policy dictates; (b) when the
broader interest of justice so
requires; (c) when the writs issued are
null and void; or (d) when the
questioned order amounts to an
oppressive exercise of judicial authority.
[DECS v. Cuanan (2008)]
J. QJA to CA to SC
 Remedy is a petition for review on
certiorari under Rule 45.
K. QJA to SC
 Remedy is a petition for certiorari under
Rule 65, which is not an appeal.
V. RULES
A. General Rule
1. Procedure in the Court of Appeals
Ordinary appealed cases:
Rule 44, Sec.1. Title of cases.—In all cases
appealed to the Court of Appeals under Rule 41,
the title of the case shall remain as it was in the
court of origin, but the party appealing shall be
further referred to as the appellant and the
adverse party as the appellee.
Counsels and guardians:
Rule 44, Sec.2. Counsel and guardians.—The
counsel and guardians ad litem of the parties in
the court of origin shall be respectively
considered as their counsel and guardians ad
litem in the Court of Appeals. When others
appear or are appointed, notice thereof shall be
served immediately on the adverse party and
filed with the court.
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REVIEWER IN REMEDIAL LAW
 The counsel and guardians ad litem of
the parties in the court of origin shall be
respectively considered as their counsel
and guardians ad litem in the CA.
 When others appear or are appointed,
notice thereof shall be served
immediately on the adverse party and
filed with the court.
Order of transmittal of record:
Rule 44, Sec.3. Order of transmittal of record.—If
the original record or the record on appeal is not
transmitted to the Court of Appeals within 30
days after the perfection of appeal, either party
may file a motion with the trial court, with notice
to the other, for the transmittal of such record or
record on appeal.
Case docketing:
Rule 44, Sec.4. Docketing of case.—Upon
receiving the original record or the record on
appeal and the accompanying documents and
exhibits transmitted by the lower court, as well
as the proof of payment of the docket and other
lawful fees, the clerk of court of the Court of
Appeals shall docket the case and notify the
parties thereof..
Within 10 days from receipt of said notice, the
appellant, in appeals by record on appeal, shall
file with the clerk of court 7 clearly legible copies
of the approved record on appeal, together wit ht
the proof of service of 2 copies thereof upon the
appellee.
Any unauthorized alteration, omission or
addition in the approved record in appeal shall
be a ground for dismissal of the appeal.
 Upon receiving the original record or
record on appeal, the accompanying
documents and exhibits transmitted by
the lower court, as well as the proof of
payment of the docket and other lawful
fees, the clerk of the Court of Appeals
shall docket the case and notify the
parties thereof.
 Within 10 days from receipt of said
notice, the appellant, in appeals by
record on appeal, shall file with the
clerk of court 7 clearly legible copies of
the approved record on appeal, together
with the proof of service of 2 copies
thereof upon the appellee.
 Any unauthorized alteration, omission
or addition in the approved record on
appeal shall be a ground for dismissal
of the appeal.
Part 4: Special Civil Actions
Record completion:
Rule 44, Sec.5. Completion of record.—Where the
record of the docketed case is incomplete, the
CIVIL PROCEDURE
clerk of court of the Court of Appeals shall so
inform the court and recommend to it measures
necessary to complete the record. It shall be the
duty of said court to take appropriate action
towards the completion of the record within the
shortest possible time.
Rule 44, Sec.6. Dispensing with complete
record.—Where the completion of the record
could not be accomplished within a sufficient
period allotted for said purpose due to
insuperable or extremely difficult cases, the
court, on its own motion or on motion of an of
the parties, may declare that the record and its
accompanying transcripts and exhibits so far
available are sufficient to decide the issues
raised in the appeal, and shall issue an order
explaining the reasons for such declaration.
 Where the record of the docketed case is
incomplete, the clerk of the Court of
Appeals shall so inform said court and
recommend to it measures necessary to
complete the record. It shall be the duty
of said court to take appropriate action
towards the completion of the record
within the shortest possible time.
 Where the completion of the record
could not be accomplished within a
sufficient period allotted for said
purpose due to insuperable or extremely
difficult causes, the court may declare
that the record and its accompanying
transcripts and exhibits so far available
are sufficient to decide the issues raised
in the appeal, and shall issue an order
explaining the reasons for such
declaration.
Appellant’s brief:
Rule 44, Sec.7. Appellant’s brief.—It shall be the
duty of the appellant to file with the court,
within 45 days from receipt of the notice of the
clerk that all the evidence, oral and
documentary, are attached to the record, 7
copies of his legibly written, mimeographed or
printed brief, with proof of service of 2 copies
thereof upon the appellee.
Important numbers to remember:
 File brief within 45 days from receipt
of notice,
 File seven copies of the brief,
 Serve two copies to appellee and file
proof of service.
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REVIEWER IN REMEDIAL LAW
Contents of appellant’s brief:
Rule 44, Sec.13. Contents of appellant’s brief.—
The appellant’s brief shall contain, in the order
herein indicated, the following:
(a) A subject index of the matter in the brief
with a digest of the arguments and page
references, and a table of cases
alphabetically arranged, textbooks and
statutes cited with references to the pages
where they are cited;
(b) An assignment of errors intended to be
urged, which errors shall be separately,
distinctly and concisely stated without
repetition and numbered consecutively;
(c) Under the heading “Statement of the Case,”
a clear and concise statement of the nature
of the action, a summary of the proceedings,
the appealed rulings and orders of the court,
the nature of the judgment and any other
matters necessary to an understanding of
the nature of the controversy, with page
references to the record;
(d) Under the heading “Statement of Facts,” a
clear and concise statement in a narrative
form of facts admitted by both parties and of
those in controversy, together with the
substance of proof relating thereto in
sufficient detail to make it clearly intelligible,
with page references to the record;
(e) A clear and concise statement of the issues
of fact or law to be submitted to the court for
its judgment;
(f) Under the heading “Argument,” the
appellant’s arguments on each assignment
of error with page references to the record.
The authorities relied upon shall be cited by
the page of the report at which the case
begins and the page of the report on which
the citation is found.
(g) Under the heading “Relief,” a specification of
the order of judgment which the appellant
seeks; and
(h) In cases not brought up by record on
appeal, the appellant’s brief shall contain, as
an appendix, a copy of the judgment or final
order appealed from.
Rule 44, Sec.15. Questions that may be raised on
appeal.—Whether or not the appellant has filed
a motion for new trial in the court below, he may
include in his assignment of errors any question
of law or fact that has been raised in the court
below and which is within the issues framed by
the parties.
Rule 124, Sec.7. Contents of brief.—The briefs n
criminal cases shall have the same contents as
provided in sections 13 and 14 of Rule 44. A
certified true copy of the decision or final order
appealed from shall be appended to the brief of
the appellant.
Part 4: Special Civil Actions
1. Subject index: Digest of the arguments
and page references, and a tables of:
i. cases alphabetically arranged and
CIVIL PROCEDURE
ii. books and statutes cited,
with references to the pages where they
are cited.
2. Assignment of errors: Errors urged
separately, distinctly and concisely;
stated without repetition and numbered
consecutively.
Whether or not the appellant has filed a
motion for new trial in the court below,
he may include in his assignment of
errors any question of law or fact that
has been raised in the court below and
which is within the issues framed by
the parties.
3. Statement of the case: Clear and
concise statement of the nature of the
action, a summary of the proceedings,
the appealed court rulings and orders,
the nature of the judgment and any
other matters necessary to an
understanding of the nature of the
controversy, with page references to the
record.
4. Statement of facts: Clear and concise
narrative statement of the facts
admitted by both parties and of those in
controversy, together with the
substance of the related proof, in
sufficient detail to make it clearly
intelligible and with page references to
the record.
5. Issues: Clear and concise statement of
issues of fact or law submitted to the
court for its judgment.
6. Argument: Appellant’s arguments on
each assignment of error, with page
references to the record. The authorities
relied upon shall be cited by the page of
the report at which the case begins and
the page of the report on which the
citation is found.
7. Relief: Specification of the order or
judgment which the appellant seeks. In
cases not brought up by record on
appeal, the appellant’s brief shall
contain (as an appendix) a copy of the
judgment or final order appealed from.
8. Attachment: Certified true copy of the
decision or final order appealed from.
Appellee’s brief:
Rule 44, Sec.8. Appellee’s brief.—Within 45 days
from receipt of the appellant’s brief, the appellee
shall file with the court 7 copies of his legibly
type-written, mimeographed or printed brief,
with proof of service of 2 copies thereof upon the
appellant.
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REVIEWER IN REMEDIAL LAW
Contents of appellee’s brief:
Rule 44, Sec.14. Contents of appellee’s brief.—
The appellee’s brief shall, in the order herein
indicated, the following:
(a) A subject index of the matter in the brief
with a digest of the arguments and page
references, and a table of cases
alphabetically arranged, textbooks and
statutes cited with references to the pages
where they are cited;
(b) Under the heading “Statement of Facts,” the
appellee shall state that the accepts the
statement of facts in the appellant’s brief, or
under the heading “Counter-Statement of
Facts,” he shall point out such
insufficiencies or inaccuracies as he believes
exist in the appellant’s statement of facts
with references to the pages of the record in
support thereof, but without repetition of
matters in the appellant’s statement of facts;
and
(c) Under the heading “Argument,” the appellee
shall set forth his arguments in the case on
each assignment of error with page
references to the record. The authorities
relied on shall be cited by the page of the
report at which the case begins and the page
of the report on which the citation is found.
1. Subject index
2. Statement of facts: Statement that
appellee accepts the statement of facts
in the appellant’s brief; or
3. Counter-statement of facts: Points out
the insufficiencies or inaccuracies
appellee believes to exist in the
appellant’s statement of facts, with
references to the supporting pages of
the record. Matters in the appellant’s
statement of facts should not be
repeated.
4. Argument: Appellee’s arguments on
each assignment of error, with page
references to the record. The authorities
relied upon shall be cited by the page of
the report at which the case begins and
the page of the report on which the
citation is found.
Reply brief:
Rule 44, Sec.9. Appellant’s reply brief.—Within
20 days from receipt of the appellant’s brief, the
appellee shall file with the court 7 copies of his
legibly typewritten, mimeographed or printed
brief, with proof of service of 2 copies thereof
upon the appellant.
Memoranda in special cases:
Rule 44, Sec.10. Time for memoranda in special
cases.—In certiorari, prohibiton, mandamus, quo
warranto and habeas corpus cases, the parties
Part 4: Special Civil Actions
shall file, in lieu of briefs, their respective
memoranda within a non-extendible period of 30
days from receipt of the notice issued by the
clerk that all the evidence, oral or documentary,
CIVIL PROCEDURE
is already attached to the record.
The failure of the appellant to file his
memorandum within the period therefore may
be a ground for dismissal of the appeal..
 In certiorari, prohibition,
mandamus, quo warranto and
habeas corpus cases, the parties
shall be file (in lieu of briefs) their
respective memoranda within a non-
extendible period of 30 days from
receipt of the notice issued by the clerk
that all the evidence is already attached
to the record.
 The failure of the appellant to file his
memorandum within the period therefor
may be a ground for dismissal of the
appeal.
Several or plurality of appellant’s, appellees
and/or counsel:
Rule 44, Sec.11. Several appellants or appellees
or several counsel for each party.—Where there
are several appellants or appellees, each counsel
representing one or more but not all of them
shall be served with only one copy of the briefs.
When several counsel represent one appellant or
appellee, copies of the brief may be served upon
any of them.
 Where there are several appellants or
appellees, each counsel representing
one or more but not all of them shall be
served with only one copy of the briefs.
 When several counsel represent one
appellant or appellee, copies of the brief
may be served upon any of them.
Extension of time for filing briefs:
Rule 44, Sec.12. Extension of time for filing
briefs.—Extension of time for the filing of briefs
will not be allowed, except for good and
sufficient cause, and only if the motion for
extension is filed before the expiration of the
time sought to be extended.
 Extension will not be allowed, except
for good and sufficient cause.
 Motion for extension should be filed
before the expiration of the time
sought to be extended.
The brief:
In the case of De Liano vs. CA (2001), the
Supreme Court discussed the following:
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REVIEWER IN REMEDIAL LAW
 Purpose of the brief is to present to the
court in concise form the points and
questions in controversy, and by fair
argument on the facts and law of the
case to assist the court in arriving at a
just and proper conclusion.
 The brief should be so prepared as to
minimize the labor of the court in the
examination of the record upon which
the appeal is heard and determined.
 Failure to comply with required
contents of appellant’s brief is cause for
dismissal of the petition.
Dismissal of appeal:
Rule 50, Sec.1. Grounds for dismissal of
appeal.—An appeal may be dismissed Court of
Appeals, on its own motion or on that of
appellee, on the following grounds:
(a) Failure of the record on appeal to show on
its face that the appeal was taken within the
period fixed by these Rules;
(b) Failure to file the notice of appeal of the
record on appeal within the period
prescribed by these Rules;
(c) Failure of the appellant to pay the docket
and other lawful fees as provide in section 5
of Rule 40 and Section4 of Rule 41;
(d) Unauthorized alterations, omission or
additions in the approved record on appeal
as provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and file the
required number of copies of his brief or
memorandum within the time provided by
these Rules;
(f) Absence of specific assignment of errors in
the appellant’s brief, or of page references to
the record as required in section 13,
paragraphs (a), (c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the
necessary steps for the correction or
completion of the record within the time
limited by the court in its order;
(h) Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives
of the court without justifiable cause; and
(i) The fact that the order or judgment appealed
from is not appealable.
Grounds:
1. Failure of the record on appeal to show
on its face that the appeal was
taken within the period fixed by the
Rules of Court.;
Part 4: Special Civil Actions
2. Failure to file the notice of appeal or
record on appeal within the period
prescribed by Rules of Court;
CIVIL PROCEDURE
3. Failure of the appellant to pay the
docket and other lawful fees;
4. Unauthorized alterations, omissions or
additions in the approved record on
appeal;
5. Failure of the appellant to serve and file
the required number of copies of his
brief or memorandum within the time
provided by the Rules of Court;
6. Absence of specific assignment of errors
in the appellant's brief, or of page
references to the record as required;
7. Failure of the appellant to take the
necessary steps for the correction or
completion of the record within the time
limited by the court in its order;
8. Failure of the appellant to appear at the
preliminary conference under Rule 48
or to comply with court orders, circulars
or directives without justifiable cause;
9. The fact that the order/judgment
appealed from is not appealable.
PNB vs. Philippine Milling (1969): CA has
discretion to dismiss or not to dismiss
appeal. Although said discretion must be a
sound one, to be exercised in accordance
with the tenets of justice and fair play,
having in mind the circumstances obtaining
in each case, the presumption is that it has
been so exercised.
Padasdas vs. CA (1974): Failure to file
appellant’s brief within the reglementary
period need not necessarily cause dismissal
of appeal where the same was due to force
majeure.
Dismissal of improper appeal:
Rule 50, Sec. 2. Dismissal of improper appeal to
the Court of Appeals.—An appeal under Rule 41
taken from the Regional Trial Court to the Court
of Appeals raising only questions of law shall be
dismissed, issues purely of law not being
reviewable by said court. Similarly, an appeal by
notice of appeal instead of by petition for review
from the appellate judgment of a Regional Trial
Court shall be dismissed.
An appeal erroneously taken to the Court of
Appeals shall not be transferred to the
appropriate court but shall be dismissed
outright.
 An appeal under Rule 41 taken from the
RTC to the CA raising only questions of
law shall be dismissed; issues purely of
law not being reviewable by said court.
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REVIEWER IN REMEDIAL LAW
 Similarly, an appeal by notice of appeal
instead of by petition for review from the
appellate judgment of a RTC shall be
dismissed.
 An appeal erroneously taken to the CA
shall not be transferred to the
appropriate court but shall be
dismissed outright.
 Atlas Consolidated vs. CA (1991): It is
true that Circular No.2-90 now
prohibits the transfer of appeals
erroneously taken to the SC or CA to
whichever of these tribunals has
appropriate appellate jurisdiction. But
where SC believes that there are factual
issues which must be resolved, it may,
in the exercise of its sound discretion
and considering the attendant
circumstances, either itself take
cognizance of and decide such issues or
refer them to CA for determination.
 Cu-unjieng vs. CA (2006): Nonpayment
of the appellate court docket and other
lawful fees within the reglementary
period as provided under Rule 41, Sec.4
is a ground for the dismissal of an
appeal under Rule 50, Sec.1(c). The
Supreme Court has invariably
sustained the Court of Appeal’s
dismissal on technical grounds under
the aforequoted provision unless
considerations of equity and substantial
justice present cogent reasons to hold
otherwise. True, the rules may be
relaxed but only for persuasive and
weighty reasons, to relieve a litigant of
an injustice commensurate with his
failure to comply with the prescribed
procedure.
Withdrawal of appeal:
Rule 50, Sec.3. Withdrawal of appeal.—An
appeal may be withdrawn as of right at any time
before the filing of the appellee’s brief.
Thereafter, the withdrawal may be allowed in the
discretion of the court.
 An appeal may be withdrawn as of right
at any time before the filing of the
appellee's brief. Thereafter, the
withdrawal may be allowed in the
discretion of the court.
Stay of execution:
Rule 70, Sec.19. Immediate execution of
judgment; how to stay same.—If judgment is
rendered against the defendant, execution shall
issue immediately upon motion, unless an
appeal has been perfected and the defendant to
stay execution files a sufficient supersedeas
bond, approved by the Municipal Trial Court and
Part 4: Special Civil Actions
executed in favor of the plaintiff to pay the rents,
damages and accosts accruing down to the time
of the judgment appealed from, and unless,
during the pendency of the appeal, he deposits
CIVIL PROCEDURE
with the appellate court the amount of rent due
from time to time under the contract, if any, as
determined by the judgment of the Municipal
Trial Court. In the absence of a contact, he shall
deposit with the Regional Trial Court the
reasonable value of the use and occupation of
the premises for the preceding month or period
at the rate determined by the judgment of the
lower court on or before the tenth day of each
succeeding month or period. The supersedeas
bond shall be transmitted by the Municipal Trial
Court, with the other papers, to the clerk of the
Regional Trial Court to which the action is
appealed.
All amounts so paid to the appellate court shall
be deposited with said court or authorized
government depositary band, and shall be held
there until the final disposition of the appeal,
unless the court, by agreement of the interested
parties, or in the absence of reasonable grounds
of opposition to a motion to withdraw, or for
justifiable reasons, shall decree otherwise.
Should the defendant fail to make the payments
above prescribed from time to time during the
pendency of the appeal, the appellate court,
upon motion of the plaintiff, and upon proof of
such failure, shall order the execution of the
judgment appealed from with respect to the
restoration of possession, but such execution
shall not be a bar to the appeal taking its course
until the final disposition thereof on the merits.
After the case is decided by the Regional Trial
Court, any money paid to the court by the
defendant for purposes of the stay of execution
shall be disposed of in accordance with the
provisions of the judgment of the Regional Trial
Court. In any case wherein it appears that the
defendant has been deprived of the lawful
possession of land or building pending the
appeal by virtue of the execution of the judgment
of the Municipal Trial Court, damages for such
deprivation of possession and restoration of
possession may be allowed the defendant in the
judgment of the Regional Trial Court disposing
of the appeal.
Rule 39, Sec.2. Discretionary execution.—
(a) Execution of a judgment or a final order
pending appeal.—On motion of the
prevailing party with notice to the adverse
party filed in the trial court while it has
jurisdiction over the case and is in
possession of either the original record or
the record on appeal, as the case may be, at
the time of the filing of such motion, said
court may, in its discretion, order execution
of a judgment or final order even before the
expiration of the period to appeal.
After the trial court has lost jurisdiction, the
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REVIEWER IN REMEDIAL LAW
motion for execution pending appeal may be
filed in the appellate court.
Discretionary execution may only issue
upon good reasons to be stated in a special
order after due hearing.
(b) Execution of several, separate or partial
judgments.—A several, separate or partial
judgment may be executed under the same
terms and conditions as execution of a
judgment or final order pending appeal.
Sec.21, Revised Rules on Summary Procedure.
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. Section 10 of Rule
70 shall be deemed repealed.
Rule 43, Sec.12. Effect of appeal.—The appeal
shall not stay the award, judgment, final order
or resolution sought to be reviewed unless the
Court of Appeals shall direct otherwise upon
such terms as it may deem just.
Rule 39, Sec.4. Judgments not stayed by
appeal.—Judgments in actions for injunction,
receivership, accounting and support, and such
other judgments as are not or may hereafter be
declared to be immediately executory shall be
enforceable after their rendition and shall not be
stayed by an appeal taken therefrom, unless
otherwise ordered by the trial court. On appeal
therefrom, the appellate court in its discretion
may make an order suspending, modifying,
restoring or granting the injunction,
receivership, accounting, or award of support.
 General rule: In ordinary appeals,
execution is stayed.
 Exceptions:
1. Decision in forcible entry and
unlawful detainer.
Exception to exception: If appellant
stays immediate execution by filing
a notice of appeal, supersedeas
bond and depositing in court a
monthly rental or compensation for
the occupation as fixed by the court
which rendered the decision.
2. Decision of the MeTC, MTC or MCTC
or the RTC where execution pending
appeal has been granted by the
court of origin or in a proper case by
the appellate court upon good
reasons to be stated in the order.
3. Decision of the RTC rendered in the
exercise of its appellate jurisdiction
Part 4: Special Civil Actions
on cases tried and decided by the
court of origin under Summary
Procedure.
CIVIL PROCEDURE
4. Decision of a quasi-judicial agency
under the Rule 43, Sec.12, unless
otherwise provided by the Court of
Appeals;
5. Decision in cases of injunction,
receivership, support and
accounting.
When case is submitted for judgment:
Rule 51, Sec. 1. When case deemed submitted for
judgment.—A case shall be deemed submitted
for judgment:
A. In ordinary appeals.—
1) Where no hearing on the merits of the main
case is held, upon the filing of the last
pleading, brief, or memorandum required by
the Rules or by the court itself, or the
expiration of the period for its filing.
2) When such hearing is held, upon its
termination or upon the filing of the last
pleading or memorandum as may be
required or permitted to be filed by the
court, or the expiration of the period for its
filing.
B. In original actions and petitions for review.—
1) Where not comment is filed, upon the
expiration of the period to comment.
2) Where no hearing is held, upon the filing of
the last pleading required or permitted to be
filed by the court, or the expiration of the
period for its filing.
3) Where a hearing on the merits of the amin
case is held, upon its termination or upon
the filing of the last pleading or
memorandum as may be required or
permitted to be filed by the court, or the
expiration of the period for its filing.
1. Where no hearing on the merits of the
main case is held, upon the filing of the
last pleading, brief or memorandum
required by the Rules of Court or by the
court itself, or the expiration of the
period for its filing.
2. Where such a hearing is held, upon its
termination or upon the filing of the last
pleading or memorandum required or
permitted to be filed by the court, or the
expiration of the period for its filing.
Judgment:
Rule 51, Sec.2. By whom rendered.—The
judgment shall be rendered by the members of
the court who participated in the deliberation on
the merits of the case before its assignment to a
member for the writing of the decision.
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Rule 51, Sec.3. Quorum and voting in the court.—
The participation of all three Justices of a
division shall be necessary at the deliberation
and the unanimous vote of the three Justices
shall be required for the pronouncement of a
judgment or final resolution. If the three
Justices do not reach a unanimous vote, the
clerk shall enter the votes of the dissenting
Justices in the record. Thereafter, the Chairman
of the division shall refer the case, together with
the minutes of the deliberation, to the Presiding
Justice who shall designate two Justices chosen
by raffle from among the other members of the
court to sit temporarily with them, forming a
special division of five Justices. The participation
of all the five members of the special division
shall be necessary for the deliberation required
in section 2 of this Rules and the concurrence of
a majority of such division shall be required for
the pronouncement of a judgment or final
resolution.
Rule 51, Sec. 4. Disposition of a case.—The
Court of Appeals, in the exercise of its appellate
jurisdiction, may affirm, reverse, or modify the
judgment or final order appealed from, and may
direct a new trial or further proceedings to be
had.
Sec.40, BP 129. Form of decision in appealed
cases.—Every decision or final resolution of a
court in appealed cases shall clearly and
distinctly state the findings of fact and the
conclusion of law on which it is based, which
may be contained in the decision or final
resolution itself, or adopted by reference from
those set forth in the decision, order, or
resolution appealed from.
Rule 51, Sec. 5. Form of decision.—Every
decision or final resolution of the court in
appealed cases shall clearly and distinctly state
the finding of fact and the conclusions of law on
which it is based, which may be contained in the
decision or final resolution itself, or adopted
from those set forth in the decision, order, or
resolution appealed from.
Rule 51, Sec.6. Harmless error.—No error in
either the admission or the exclusion of evidence
and no error or defect in any ruling or order or
in anything done or omitted by the trial court or
by any of the parties is ground for granting a
new trial or for setting aside, modifying, or
otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court
inconsistent with substantial justice. The court
at every stage of the proceedings must disregard
any error or defect which does not affect the
substantial rights of the parties.
Rule 51, Sec.7. Judgment where there are
several parties.—In all actions or proceedings,
an appealed judgment may be affirmed as to
some of the appellants, and revered as to others,
Part 4: Special Civil Actions
and the case shall thereafter be proceeded with,
so far as necessary, as of separate actions had
been begun and prosecuted; and execution of
the judgment of affirmance may be had
CIVIL PROCEDURE
accordingly, and costs may be adjudged in such
cases, as the court shall deem proper.
Rule 51, Sec. 8. Questions that may be
decided.—No error which does not affect the
jurisdiction over the subject matter or the
validity of the judgment appealed from or the
proceedings therein will be considered unless
stated in the assignment of errors, or closely
related to or dependent on an assigned error
Rule 51, Sec. 9. Promulgation and notice of
judgment.—After the or final resolution and
dissenting or separate opinions, if any, are
signed by the Justices taking part, they shall be
delivered for filing to the clerk who shall indicate
thereon the date of promulgation and cause true
copes thereof to be served upon the parties or
their counsel.
 It is rendered by the members of the
court who participated in the
deliberation on the merits of the case
before its assignment to a member for
the writing of the decision.
 The participation of all 3 Justices of a
division shall be necessary at the
deliberation.
 The unanimous vote of the 3 Justices
shall be required for the pronouncement
of a judgment or final resolution.
 If the 3 Justices do not reach a
unanimous vote, the clerk shall enter
the votes of the dissenting Justices in
the record.
 The Chairman of the division shall refer
the case (together with the minutes of
the deliberation) to the Presiding Justice
who shall designate 2 Justices chosen
by raffle from among all the other
members of the court to sit temporarily
with them, forming a special division of
5 Justices.
 The participation of all the 5 members
of the special division shall be
necessary for the deliberation and the
concurrence of a majority of such
division shall be required for the
pronouncement of a judgment or final
resolution.
 The CA, in the exercise of its appellate
jurisdiction, may affirm, reverse or
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REVIEWER IN REMEDIAL LAW
modify the judgment or final order
appealed from, and may direct a new
trial or further proceedings to be had.
 Every decision or final resolution of the
CA in appealed cases shall clearly and
distinctly state the findings of fact and
the conclusions of law on which it is
based, which may be contained in the
decision or final resolution itself, or
adopted from those set forth in the
decision, order or resolution appealed
from.
 Harmless error rule: No error in the
admission or exclusion of evidence and
no error or defect in any ruling or order
or in anything done or omitted by the
trial court or of any of the parties is
ground for granting a new trial or for
setting aside, modifying or otherwise
disturbing a judgment or order, unless
refusal to take such action appears
to the court inconsistent with
substantial justice. The court at
every stage of the proceeding must
disregard any error or defect which
does not affect the substantial
rights of the parties.
 In all actions or proceedings, an
appealed judgment may be affirmed as
to some of the appellants and reversed
as to others, and the case shall
thereafter be proceeded with as if
separate actions had been begun and
prosecuted.
 No error which does not affect the
jurisdiction over the subject matter
or the validity of the judgment
appealed from or the proceedings
therein will be considered unless
stated in the assignment of errors,
or closely related to or dependent on
an assigned error and properly
argued in the brief.
 Exception: The court may pass upon
plain errors and clerical errors.
 After the judgment or final resolution
and dissenting or separate opinions are
signed by the Justices taking part, they
shall be delivered for filing to the clerk.
The clerk shall indicate thereon the date
of promulgation and cause true copies
thereof to be served upon the parties or
their counsel.
Part 4: Special Civil Actions
2. Procedure in the Supreme Court
(Appealed Cases)
CIVIL PROCEDURE
Mode of appeal:
Rule 56, Sec. 3. Mode of appeal.—An appeal to
the Supreme Court may be taken only by a
petition for review on certiorari, except in
criminal cases where the penalty imposed is
death, reclusion perpetua or life imprisonment.
 Only by a petition for review on
certiorari.
 Exception: Criminal cases where the
penalty imposed is death, reclusion
perpetua or life imprisonment.
Procedure:
Rule 56, Sec. 4. Procedure.—The appeal shall be
governed by and disposed of in accordance with
the applicable provisions of the Constitution,
laws, Rules 45, 48, sections 1, 2 and 5 to 11 of
Rules 51, 52 and this Rule.
 Governed by and disposed of in
accordance with the applicable
provisions of the Constitution, laws,
Rules 45, 48, Sec. 1, 2 and 5 to 11 of
Rule 51, 52 and this Rule.
Grounds for dismissal of appeal:
Rule 56, Sec. 5. Grounds for dismissal of
appeal.—The appeal may be dismissed motu
proprio or on motion of the respondent on the
following grounds:
(a) Failure to take the appeal within the
reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and
other lawful fees or to make a deposit for
costs;
(d) Failure to comply with the requirements
regarding proof of service and contents of
and the documents which should
accompany the petition;
(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; and
(g) The fact that the case is not appealable to
the Supreme Court.
1. Failure to take the appeal within the
reglementary period;
2. Lack of merit in the petition;
3. Failure to pay the docket and other
lawful fees or to make a deposit for
costs;
4. Failure to comply with the requirements
regarding proof of service and contents
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REVIEWER IN REMEDIAL LAW
of and the documents which should
accompany the petition;
5. Failure to comply with any SC
circular/directive/order without
justifiable cause;
6. Error in the choice/mode of appeal;
7. The fact that the case is not appealable
to SC.
Improper appeal:
Rule 56, Sec. 6. Disposition of improper appeal.—
Except as provided in section 3, Rule 122
regarding appeals in criminal cases where the
penalty imposed is death, reclusion perpetua or
life imprisonment, an appeal taken to the
Supreme Court by notice of appeal shall be
dismissed.
An appeal by certiorari taken to the Supreme
Court from the Regional Trial Court submitting
issues of fact may be referred to the Court of
Appeals for decision or appropriate action. The
determination of the Supreme Court on whether
or not issues of facts are involved shall be final.
Rule 122, Sec.3. How appeal taken.—
(a) The appeal to the Regional Trial Court, or to
the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its
original jurisdiction, shall be by notice of
appeal filed with the court which rendered
the judgment or final order appealed from
and by serving a copy thereof upon the
adverse party.
(b) The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be
by petition for review under Rule 42.
(c) The appeal in cases where the penalty
imposed by the Regional Trial Court is
reclusion perpetua or life imprisonment, or
where a lesser penalty is imposed but for
offenses committed on the same occasion or
which arose out of the same occurrence that
gave rise to the more serious offense for
which the penalty of death, reclusion
perpetua, or life imprisonment is imposed,
shall be by notice of appeal to the Court of
Appeals in accordance with paragraph (a) of
this Rule.
(d) No notice of appeal is necessary in cases
where the Regional Trial Court imposed the
death penalty. The Court of Apppeals shall
automatically review the judgment as
provided in Section 10 of this Rule.
(e) Except as provided in the last paragraph of
section 13, Rule 124, all other appeals to the
Supreme Court shall be by petition for
review on certiorari under Rule 45.
 An appeal taken to the Supreme Court
by notice of appeal shall be dismissed.
Part 4: Special Civil Actions
 Exception: Appeals in criminal cases
where the penalty imposed is death,
reclusion perpetua or life imprisonment.
CIVIL PROCEDURE
 An appeal by certiorari taken to the SC
from the RTC submitting issues of fact
may be referred to the CA for decision
or appropriate action. The
determination of the SC on whether or
not issues of fact are involved shall be
final.
CIVIL PROCEDURE REMEDIAL LAW
Equally divided:
Rule 56, Sec. 7. Procedure if opinion is equally
divided.—Where the court en banc is equally
divided in opinion, or the necessary majority
cannot be had, the case shall again be
deliberated on, and if after such deliberation no
decision is reached, the original action
commenced in the court shall be dismissed; in
appealed cases, the judgment or order appealed
from shall stand affirmed; and on all incidental
matters, the petition or motion shall be denied.
 Where the court en banc is equally
divided in opinion, or the necessary
majority cannot be had, the case shall
again be deliberated on.
 If after such deliberation no decision is
reached:
1. The original action commenced in
the court shall be dismissed.
2. In appealed cases, the judgment or
order appealed from shall stand
affirmed.
B. Questions of Fact vs. Questions of
Law
In the case of Agote vs. Lorenzo (2005), the
Supreme Court laid down the following
principles:
 A question of law does not involve an
examination of the probative value of
the evidence presented by any of the
litigants.
 There is a question of law in a given
case when the doubt or difference arises
as to what the law is on a certain state
of facts; there is a question of fact when
the doubt or difference arises as to the
truth or the falsehood of the facts
alleged.
Alsua-Betts vs. CA (1979):
General rule: CA’s findings of fact are final
and conclusive and cannot be reviewed on
appeal to the SC, provided they are borne
out by the record or are based on
substantial evidence.
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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions
Exception: CA’s findings of fact may be 3. Reglementary Not later than sixty
reviewed by the SC on appeal by certiorari Period (60) days from notice
when: of the judgment, order
Must be filed within the or resolution sought

CIVIL PROCEDURE
1. Joaquin vs. Navarro: Conclusion is a
reglementary period for to be assailed.
finding grounded entirely on
appeal.
speculations, surmises or conjectures. 4. Effect on the No effect (i.e.,
2. Luna vs. Linatok: Inference made is Proceedings Below proceedings below
manifestly mistaken, absurd or continue) unless a
impossible. Judgment, award or writ of preliminary
3. Buyco vs. Pp: There is grave abuse of order appealed from is injunction or a
discretion in the appreciation of facts. stayed by the Appeal temporary restraining
4. De la Cruz vs. Sosing: Judgment is order has been issued
based on a misapprehension of facts. 5. Parties Involved The parties are the
5. Casica vs. Villaseca: The Court of aggrieved party
Original Parties to the against the lower
Appeal’s findings of fact are conflicting.
action remain the same court/Quasi-judicial
6. Nakpil & Sons vs. CA (1986): The Court during appeal (albeit agency and the
of Appeals, in making its findings, went with the corresponding prevailing parties,
beyond the issues of the case and the appellation of appellant who thereby
same is contrary to the admissions of and appellee), the lower respectively become
both appellant and appellee. court or quasi-judicial the petitioner and the
7. Abellana vs. Dosdos (1965): The Court agency is not to be respondents.
of Appeals manifestly overlooked certain impleaded.
relevant facts not disputed by the 6. Requirement of A motion for
Motion for reconsideration is a
parties and which, if properly
Reconsideration CONDITION
considered, would justify a different PRECEDENT subject
conclusion. For purposes of appeal, only to certain
8. Manlapaz vs. CA (1987): The Court of MR is not required exceptions.
Appeal’s findings of fact are contrary to 7. Exercise of Higher Court
those of the trial court, or are mere Jurisdiction exercises original
conclusions without citation of specific jurisdiction under its
evidence, or where the facts set forth by The Appellate Court power of control and
the petitioner are not disputed by the exercises its appellate supervision over the
respondent, or where the findings of jurisdiction and power proceedings of lower
of review courts.
fact of the Court of Appeals are
premised on absence of evidence but
are contradicted by the evidence of C. Notice of Appeal
record. The notice of appeal shall indicate the
9. Joaquin v. Navarro: Conclusion is a parties to the appeal, the judgment or final
finding grounded entirely on order or part thereof appealed from, the
speculations/surmises/conjectures. state the material dates showing the
Perez-Rosario vs. CA (2005): Rule 65 timeliness of the appeal.
cannot cure the failure to appeal thru
Rule 45. D. Record on Appeal
Distinctions Between Rule 45 and Required only in:
Rule 65 Based on J. Regalado’s Commentary 1. Special proceedings;
(Asked in the 1999 and 2008 Bar Exams ) 2. Multiple or separate appeals where the
Rule 45 Appeal by Rule 65 Original law or the Rules of Court so requires.
Certiorari Action for Certiorari
1. Issues Raised Grave Abuse of Rule 40, Sec.2. When to appeal.—The appeal is
Discretion Amounting taken by filing a notice of appeal with the court
Questions of Law to Lack or Excess of that rendered the judgment or final order
Jurisdiction appealed from. Where a record on appeal is
2. Against What Directed Against an required, the appellant shall file a notice of
Court Action Directed Interlocutory Order of appeal and a record on appeal within 30 days
the court prior to after notice of the judgment or final order.
Review of the judgment, appeal from the
The period of appeal shall be interrupted by a
award or final order on judgment, or where
timely motion for new trial or reconsideration.
the merits there is no appeal or
No motion for extension of time to file a motion
any other plain
for new trial or reconsideration shall be allowed.
speedy and adequate
remedy

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REVIEWER IN REMEDIAL LAW Part 4: Special Civil Actions
Neypes vs. CA (2005) on the fresh period F. Period to Appeal
rule:
 Definition: Period of appeal is From MTC to RTC and from RTC (original) to
CA:

CIVIL PROCEDURE
interrupted by a timely motion for new
trial or reconsideration. Motion for 1. By notice of appeal: 15 days from notice
extension of time to file motion for new of the judgment or final order
trial or reconsideration is not allowed. 2. By record of appeal: 30 days from notice
 Applicability: of the judgment or final order
1. Rule 40 on appeals from MTC to 3. From MTC to RTC (appellate) to CA: 15
RTC. days from notice of the judgment or
2. Rule 42 on petitions for review from final order but the Court of Appeals may
RTC to CA. grant a 15 day extension. No further
3. Rule 43 on appeals from QJA to CA. extension shall be granted except for
4. Rule 45 on appeals by certiorari to the most compelling reasons and in no
SC. case longer then 15 days.
 Rationale: To standardize the appeal From RTC (original) to CA to SC and from
periods provided in the Rules of Court MTC to RTC (appellate) to CA to SC and from
and to afford litigants fair opportunity CA to SC and from QJA to CA to SC:
to appeal their cases, the court deems it 15 days from notice of judgment or final
practical to allow a fresh period of 15 order or from denial of petitioner’s motion
days within which to file the notice of for reconsideration or new trial. The SC
appeal in the Regional Trial Court, may grant a 30 day extension for justifiable
counted from receipt of the order reasons.
dismissing a motion for new trial or
reconsideration. From QJA to CA:
15 days from notice of the award,
judgment, final order or resolution or from
E. Perfection of Appeal
date of last publication if required by law.
 Appeal from MTC to RTC: the rules on The CA may grant a 15 day extension. No
perfection of appeal from RTC to CA further extension shall be granted except
applies. for the most compelling reasons and in no
 From the Regional Trial Court to CA: case longer then 15 days.
 By notice of appeal: perfected as to
party who filed notice upon filing of
the same in due time
o The court loses jurisdiction over
the case upon perfection of
appeal AND expiration of time to
appeal of the other parties.
 By record on appeal: perfected as to
the party who filed appeal and with
respect to the subject matter thereof
upon approval of the record filed in
due time
o The court loses jurisdiction upon
approval of the records on
appeal AND expiration of the
time to appeal of the other
parties
 From MTC to RTC (appellate
jurisdiction) to CA: upon timely filing of
a petition for review and the payment of
the corresponding docket and other
lawful fees.
 The RTC loses jurisdiction upon
perfection of appeals filed in due
time AND the expiration of time to
appeal of other parties.

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REVIEWER IN REMEDIAL LAW Part 5: Remedies and Appeals

Matrix of Periods
Period to Appeal Extensions Effect of MR or MNT
By notice of appeal - 15 days

CIVIL PROCEDURE
MTC to Interrupts the period
from notice of the judgment or No extensions allowed
RTC to appeal
final order
By record of appeal – 30 days
from notice of the judgment or
final order
By notice of appeal - 15 days
Interrupts the period
RTC to CA from notice of the judgment or No extensions allowed
to appeal
final order
By record of appeal – 30 days
from notice of the judgment or
final order
The CA may grant a 15 day
15 days from notice of the
extension. No further
judgment or final order OR from Fresh period to
MTC to extension shall be granted
denial of MR or MNT appeal from denial
RTC to CA except for the most compelling
MR or MNT
reasons and in no case longer
then 15 days.
The CA may grant a 15 day
15 days from notice of the
extension. No further
award, judgment, final order or Fresh period to
extension shall be granted
QJA to CA resolution or from date of last appeal from denial
except for the most compelling
publication if required by law OR MR or MNT
reasons and in no case longer
from denial of MR or MNT
then 15 days.
RTC to SC
15 days from notice of judgment The SC may grant a 30 day Fresh period to
RTC to CA
or final order OR from denial of extension for justifiable appeal from denial
to SC
petitioner’s MR or MNT. reasons. MR or MNT
CA to SC

This “fresh period rule” shall also apply to
Rule 40 governing appeals from the
Municipal Trial Courts to the Regional Trial
Courts; Rule 42 on petitions for review from
the Regional Trial Courts to the Court of
Appeals; Rule 43 on appeals from quasi-
judicial agencies to the Court of Appeals
and Rule 45 governing appeals
by certiorari to the Supreme Court. The new
rule aims to regiment or make the appeal
period uniform, to be counted from receipt
of the order denying the motion for new
trial, motion for reconsideration (whether
full or partial) or any final order or
resolution. [Neypes vs. CA, (2005)]
A party litigant may now file his notice of
appeal either within fifteen days from
receipt of the original decision or within
fifteen days from the receipt of the order
denying the motion for
reconsideration. Being procedural in
nature, Neypes is deemed to be applicable
to actions pending and undetermined at the
time of its effectivity and is thus retroactive
in that sense and to that extent. [First Aqua
Sugar v. BPI (2007)]
VI. SPECIAL TOPIC: REMEDIES
FROM A VOID JUDGMENT
(Asked in the 2004 BAR EXAMS)
1. What is a void judgment?
A void judgment is no judgment at all. It
cannot be the source of any right nor of any
obligation. All acts performed pursuant to it
and all claims emanating from it have no
legal effect. Hence, it can never become
final and any writ of execution based on it
is void: "x x x it may be said to be a lawless
thing which can be treated as an outlaw
and slain at sight, or ignored wherever and
whenever it exhibits its head.
A void judgment never acquires finality.
A void judgment is not entitled to the
respect accorded to a valid judgment, but
may be entirely disregarded or declared
inoperative by any tribunal in which effect
is sought to be given to it. It is attended by
none of the consequences of a valid
adjudication. It has no legal or binding
effect or efficacy for any purpose or at any
place. It cannot affect, impair or create
rights. It is not entitled to enforcement and
is, ordinarily, no protection to those who
seek to enforce. All proceedings founded on
the void judgment are themselves regarded

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REVIEWER IN REMEDIAL LAW
as invalid. In other words, a void judgment
is regarded as a nullity, and the situation is
the same as it would be if there were no
judgment. It, accordingly, leaves the parties
litigants in the same position they were in
before the trial.
A judgment may be void for lack of due
process of law. (Spouses Benatiro vs. Heirs
of Cuyos, G.R. No. 161220, July 30, 2008)
2. How do you attack a void judgment?
It may be assailed anytime, collaterally or
in a direct action or by resisting such
judgment or final order in any action or
proceeding whenever it is invoked,
unless barred by laches. (Spouses Benatiro
vs. Heirs of Cuyos, G.R. No. 161220, July
30, 2008)
3. What are your remedies?
If the reglementary period for appeal has
not yet lapsed, some remedies are New
Trial and Reconsideration. Appeal,
Petition for Relief, and Other
Appropriate Remedies such as
Certiorari may also be used. If the
appropriate remedies are no longer
available without the fault of the petitioner,
the equitable and extraordinary remedy
of Petition for Annulment of Judgment
may be resorted to. When all else fails,
there is a jurisprudence to the effect that a
patently void judgment may be dealt with
by a Main Action for Injunction.
Part 5: Remedies and Appeals
Some Jurisprudential Basis
Remedial Law Jurisprudence such as
CIVIL PROCEDURE
Spouses Benatiro vs. Heirs of Cuyos, (G.R.
No. 161220, July 30, 2008) and Agustin vs.
Bacalan, (1985) on the matter of void
judgment particularly refer to Rule 47 as a
remedy against a void judgment. This
remedy however should be availed of only
when the appropriate remedies are no
longer available without fault on the part of
the petitioner.
Although Section 2 of Rule 47 of the Rules
of Court provides that annulment of a final
judgment or order of an RTC may be based
"only on the grounds of extrinsic fraud and
lack of jurisdiction," jurisprudence
recognizes denial of due process as
additional ground therefore (Spouses
Benatiro Case).
In Montinola vs. Judge Gonzales (1989), the
Supreme Court held: Petitioners' contention
that the decision of April 28, 1971, in Civil
Case No. 6793, may not be annulled after it
had become final is not well-taken, FOR A
VOID JUDGMENT IS LIKE AN OUTLAW
WHICH MAY BE SLAIN AT SIGHT
WHEREVER OR WHENEVER IT EXHIBITS
ITS HEAD. ". . . the proper remedy in such
case, after the time for appeal or review
has passed, is for the aggrieved party to
bring an action to enjoin the judgment ...
In every situation of this character an
appropriate remedy is at hand ... We
accordingly held that, assuming the
judgment to have been void as alleged by
the proponent of this motion, the proper
remedy was by an original proceeding and
not by motion in the cause" (Banco Espanol
vs. Palanca, 37 Phil. 921; p. 5). "A final
judgment may be annulled on the ground of
lack of jurisdiction, fraud, or that it is
contrary to law" (Panlilio vs. Garcia, 119
SCRA 307)
Page 131 of 370
REVIEWER IN REMEDIAL LAW Appendices

APPENDIX 1: Service of Summons upon Different Entities

1. Service on person associated If sued under the name by which they are commonly known – Serve
upon either:

CIVIL PROCEDURE
in an
entity without juridical personality 1) Any/all the defendants;
[Rule 14, Sec. 8] 2) Person in charge of the office
The service does not bind individually any person whose connection
with the entity was already severed before the service
2. Service upon minors and Serve upon the minor/incompetent and on his legal guardian.
incompetents [Rule 14, Sec.  If there is no guardian, plaintiff may apply for the appointment of a
10] guardian ad litem.
 If minor, may serve on his parents.
3. Service upon prisoner [Rule Serve upon the officer having management of the jail/prison
14, Sec. 9]
4. Service upon domestic Serve upon either the:
private juridical entity [Rule 1) President
14, Sec. 11] 2) Managing partner
3) General manager
4) Corporate secretary
5) Treasurer
6) In-house counsel
5. Service upon foreign private Serve upon the resident agent;
juridical entity Otherwise, upon either:
[Rule 14, Sec. 12] 1) Government official designated by law;
2) Any officer or agent of the corporation within the Philippines
6. Service upon public If the defendant is the Republic of the Philippines – Serve upon the
corporations OSG
[Rule 14, Sec. 13] If the defendant is a province/city/municipality or like public
corporations – Serve upon the executive head or other officers as
the law/court may direct
7. Extraterritorial service Requisites: (Asked in the 1997 and 2008 Bar Exam)
[Rule 14, Sec. 15] 1) Defendant does not reside or is not found in the Philippines;
2) Action either:
a) Affects the plaintiff’s personal status;
b) Relates to or the subject matter of which is property within
the Philippines in which defendant has a lien/interest;
c) Demands a relief which consists wholly/partially in
excluding the defendant from any interest in any property
within the Philippines;
d) Has defendant’s property in the Philippines, attached.
Modes of service:
1) With leave of court, serve outside the Philippines by personal
service; or
2) With leave of court, serve by publication in a newspaper of
general circulation, in which case copy of the summons and
order of the court must also be sent by registered mail to the
defendant’s last known address;
3) Any other manner the court deems sufficient
The court order granting extraterritorial service shall specify a period
of at least 60 days within which the defendant must answer.
8. Service upon a resident With leave of court, may serve extraterritorially
temporarily out of the
Philippines
[Rule 14, Sec. 16]
9. Service upon a defendant With leave of court, by publication in a newspaper of general
whose identity or circulation
whereabouts are unknown
[Rule 14, Sec. 14]

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REVIEWER IN REMEDIAL LAW Appendices

APPENDIX 2: Subpoena Duces Tecum and Order for the Production or Inspection

SUBPOENA DUCES TECUM ORDER FOR THE PRODUCTION OR

NATURE Process requiring a person to bring
with him any books, documents,
documents, or other things under
his control or possession.
CIVIL PROCEDURE
INSPECTION
order any party to produce and permit
the inspection and copying or
photographing, by or on behalf of
the moving 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 action and which are in his
possession, custody or control, or

order any party to permit entry upon

designated land or other property
in his possession or control for
the purpose of inspecting,
measuring, surveying, or
photographing the property or
any designated relevant object or
operation thereon.
TO WHOM DIRECTED To any person Only to a party
WHEN IT MAY BE Only during trial Before and/or during trial
ASKED
Issued by a court before whom the Issued by the court where the action
ISSUED BY WHOM witness is required to attend, or is pending
court where the deposition is to be
taken or clerk or body authorized
by law or any justice of the
Supreme Court or CA in any case
or investigation pending within the
Philippines
WHEN ISSUED Issued upon request Issued upon motion
(Request to the clerk, no notice) (application with notice to the other
party)
WHETHER IT IS NO YES
NECESSARY TO
SHOW GOOD CAUSE
GROUNDS FOR Unreasonable, oppressive, irrelevant, No good cause shown
QUASHAL or

The person in whose behalf the

subpoena is issued fails to advance
the reasonable costs of the
production thereof
CONSEQUENCE OF Constitutes contempt of the court from See Section 3, Rule 29
DISOBEDIENCE which the subpoena is issued.

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REVIEWER IN REMEDIAL LAW Appendices

APPENDIX 3: Consequences of Refusal under Rule 29

PROVISION HIGHLIGHTS APPLICABILITY

CIVIL PROCEDURE
Section 1. REFUSAL TO ANSWER. If a party or other deponent PARTY OR DEPONENT /WITNESS IN
refuses to answer any question upon oral examination, RULE 23 (depositions de bene
a. the examination may be completed on other matters or esse),
b. adjourned as the proponent of the question may prefer. RULE 24 (depositions in
c. The proponent may thereafter apply (i.e., by MOTION FOR perpetuam rei memoriam)
THE ISSUANCE OF AN ORDER TO COMPEL AN ANSWER) RULE 25. INTERROGATORIES
to the proper court of the place where the deposition is TO PARTIES
being taken, for an order to compel an answer.

IF THE APPLICATION IS GRANTED, the court shall require the

refusing party or deponent to answer the question or
interrogatory and if it also finds that the refusal to answer
was without substantial justification,
it may require the refusing party or deponent or the counsel
advising the refusal, or both of them, to pay the proponent
the amount of the reasonable expenses incurred in obtaining
the order, including attorney's fees.

IF THE APPLICATION IS DENIED and the court finds that it was

filed without substantial justification, the court may require
the proponent or the counsel advising the filing of the
application, or both of them, to pay to the refusing party or
deponent the amount of the reasonable expenses incurred in
opposing the application, including attorney's fees.
Section 2. Contempt of court. If a party or other witness PARTY OR WITNESS IN
RULE 23 (depositions de bene esse),
refuses to BE SWORN OR RULE 24 (depositions in perpetuam
refuses to answer any question after being directed to do rei memoriam)
so

by the court of the place in which the deposition is being taken,

the refusal may be considered a contempt of that court.
Section 3. Other consequences PARTY OR AN OFFICER OR
MANAGING AGENT OF A PARTY IN
AGGRIEVED PARTY MAY APPLY FOR: 23, 24, 25 IN RELATION TO RULE
An order that the matters regarding which the 29.1 ON ORDER TO COMPEL AN
questions were asked, or the character or ANSWER
description of the thing or land, or the contents of PARTY IN 27, 28
the paper, or the physical or mental condition of RULE 23 (depositions de bene esse),
the party, RULE 24 (depositions in perpetuam
or any other designated facts shall be taken to be rei memoriam)
established for the purposes of the action in RULE 25 (Interrogatories to parties)
accordance with the claim of the party obtaining RULE 27 (Motion for production or
the order; inspection of documents or
An order things)
a. refusing to allow the disobedient party to support or RULE 28 (Physical and mental
oppose designated claims or defenses or examination of persons)
b. prohibiting him from introducing in evidence (APPLIES TO all modes of discovery
designated documents or things or items of except RULE 26 ON REQUEST
testimony, or FOR ADMISSION BY AN ADVERSE
c. from introducing evidence of physical or mental PARTY)
condition;
An order
a. striking out pleadings or parts thereof, or
b. staying further proceedings until the order is obeyed,
or
c. dismissing the action or proceeding or any part
thereof,
d. or rendering a judgment by default against the
disobedient party; and

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REVIEWER IN REMEDIAL LAW Appendices
PROVISION HIGHLIGHTS APPLICABILITY
IN LIEU OF ANY OF THE FOREGOING ORDERS OR IN
ADDITION THERETO,
an order directing the arrest of any party or agent of a

CIVIL PROCEDURE
party for disobeying any of such orders except an
order to submit to a physical or mental examination.
Section 4. Expenses on refusal to admit. PARTY SERVED WITH A REQUEST
RULE 26 ADMISSION BY AN
If a party after being served with a request under Rule 26 to ADVERSE PARTY
admit the genuineness of any document or the truth of any
matter of fact

Serves a sworn denial thereof and

If the party requesting the admissions thereafter proves
the genuineness of such document or the truth of
any such matter of fact,

he may apply to the court for an order requiring the other party
to pay him the reasonable expenses incurred in making such
proof, including attorney's fees.
Unless the court finds THAT THERE WERE GOOD REASONS
FOR THE DENIAL OR THAT ADMISSIONS SOUGHT WERE
OF NO SUBSTANTIAL IMPORTANCE, SUCH ORDER SHALL
BE ISSUED.
SECTION 5. FAILURE OF PARTY TO ATTEND OR SERVE PARTY OR AN OFFICER OR
ANSWERS. MANAGING AGENT OF A PARTY
RULE 23 (depositions de bene esse),
If a party or an officer or managing agent of a party RULE 24 (depositions in perpetuam
a. wilfully fails to appear before the officer who is to take rei memoriam)
his deposition, after being served with a proper notice, or RULE 25. INTERROGATORIES TO
b. fails to serve answers to interrogatories submitted under PARTIES
Rule 25 after proper service of such interrogatories,

The court on motion and notice, may

a. strike out all or any part of any pleading of that party, or

b. dismiss the action or proceeding or any part thereof, or
c. enter a judgment by default against that party,
d. and in its discretion, order him to pay reasonable
expenses incurred by the other, including attorney's fees
SECTION 6. EXPENSES AGAINST THE REPUBLIC OF THE Applies to all provisions in Rule 29
PHILIPPINES. requiring a noncompliant party or
witness (who represents the
Expenses and attorney's fees are not to be imposed upon the Republic in an official capacity) to
Republic of the Philippines under this Rule pay.

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REVIEWER IN REMEDIAL LAW Appendices

APPENDIX 4: Procedure for Expropriation

CIVIL PROCEDURE
All sales of property under execution must be made at public auction, to
the highest bidder, to start at the exact time fixed in the notice. The
judgment obligor, if present at the sale, may direct the order in whic h
property, real or personal shall be sold, when such property consists of
several known lots or parcels which can be sold to advantage
.separately.

When the sale is of real When the sale is of

property, consis ting of several personal property capable of
know n lots, they must be sold manual delivery, it must be
separately ; or,when a portion sold w ithin view of those
of such real property is claimed attending the same and in
by a third person, he may such parcels as are likely to
require it to be sold separately bring the highest price

After suffic ient property has been sold to satisfy the execution, no
more shall be sold and any excess property or proceeds of the sale
shall be promptly delivered to the judgment obligor or his authoriz ed
representative, unless otherw is e directed by the judgment or order of
the court.

Section 20. Refusal of purchaser to pay. If a purchaser refuses to pay the amount bid by
him for property struck off to him at a sale under execution , the officer may again sell the
property to the highest bidder and shall not be responsible for any loss occasioned
thereby; but the court may (1) order the refusing purchaser to pay into the court the
amount of such loss1, w ith costs, and may punish him for contempt if he disobeys the
order. The amount of such payment shall be for the benefit of the person entitled to the
proceeds of the execution, unless the execution has been fully satisfied, in which event
such proceeds shall be for the benefit of the judgment obligor. (2) The officer may

Section 24. CONVEYANCE TO PURCHASER OF Section 23. CONVEYANCE TO PURCHASER

PERSONAL PROPERTY NOT CAPABLE OF
MANUAL DELIVERY. When the purchaser of any
personal property, not capable of manual delivery,
pays the purchase pric e, the officer making the sale
must execute and deliver to the purchaser a
certif icate of sale. Such certif icate conveys to the
purchaser all the rights whic h the judgment obligor
had in such property as of the date of the levy on
execution or preliminary attachment
OF PERSONAL PROPERTY CAPABLE OF
MANUAL DELIVERY. When the purchaser of
any personal property, capable of manual
delivery, pays the purchase price, the offic er
making the sale must deliver the property to the
purchaser and, if desired, execute and deliver to
him a certificate of sale. The sale conveys to the
purchaser all the rights whic h the judgment
obligor had in such property as of the date of the
levy on execution or preliminary attachment .

- end of Civil Procedure -

Page 136 of 370