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Supreme Court
DEFINITION • The judicial power shall be vested in one SC
and in such lower courts as may be established
• Power of the court to hear an action or by law. [Art. 8, Sec. 1, Consti]
proceedings, and to render a judgment thereon
which will bind the parties to such action/ SC’S POWERS [Art. 8, Sec. 5, Consti]
proceeding. [Regalado] 1) Have original jurisdiction over:
• Judicial power includes the duty of the courts of a) Cases affecting ambassadors and other
justice: [Art 8, Sec. 1, Consti] public ministers and consuls;
1) To settle actual controversies involving b) Petitions for certiorari, prohibition,
rights which are legally demandable and mandamus, quo warranto, and habeas
enforceable; corpus.
2) To determine WON there has been a 2) Review/revise/reverse/modify/affirm on appeal
GADALEJ on the part of any government or certiorari, final judgments/orders of lower
branch/instrumentality. courts on:
a) Constitutionality/validity of any treaty,
international or executive agreement, law,
I. PRESCRIBED JURISDICTION presidential decree/proclamation/order/
instruction, ordinance or regulation;
b) Legality of any tax/impost/assessment/toll,
or any penalty imposed in relation thereto;
• Jurisdiction over a particular subject matter.
c) Any lower court’s jurisdiction;
• Conferred only by the Constitution or by law.
d) Criminal cases where the penalty imposed
• Determined by the allegations in the complaint.
is reclusion perpetua or higher;
• An error in jurisdiction can be raised at any
e) Only errors/questions of law are involved.
time and even for the first time on appeal.
• Exception: [Josefa v. Zhandong
[David v. Cordova (2005)]
• Cannot be waived; Judgment without
(1) The conclusion is grounded on
jurisdiction is void.
• Exception: Jurisdiction by estoppel.
(2) The inference is manifestly
[Soliven v. Fastforms (2004)]
• Rationale: To prohibit parties from
(3) There is GAD;
accepting judgments of court only if
(4) The judgment is based on a
favorable to them.
misapprehension of facts;
• Cannot be the subject of compromise [Art.
(5) The findings of fact are conflicting;
2035, CC]
(6) There is no citation of specific
• Once attached to a court, cannot be ousted by
evidence on which the factual
subsequent statute.
findings are based;
• Exception: The statute itself conferring
(7) The finding of absence of facts is
new jurisdiction expressly provides for
contradicted by the presence of
retroactive effect. [Southern Food v. Salas
evidence on record;
(8) The CA’s findings are contrary to
• The filing of the complaint or appropriate
those of the trial court;
initiatory pleading and the payment of the
(9) The CA manifestly overlooked
prescribed docket fee vest a trial court with
certain relevant and undisputed
jurisdiction over the subject matter or the
facts that, if properly considered,
nature of the action.
would justify a different conclusion;
• Exception: The court may allow payment
(10) The CA’s findings are beyond the
of the fee within a reasonable time, but in
issues of the case;
no case beyond the applicable prescriptive
(11) The CA’s findings are contrary to
period. [IBP v. Legasto (2006)]
the admissions of both parties.
3) Temporarily assign judges of lower courts to
other stations as public interest may require,
which shall not 6 six months without the
consent of the judge concerned.
4) Order a change of venue or place of trial to
avoid a miscarriage of justice.
5) Promulgate rules on:
a) Protection and enforcement of constitutional
b) Pleading/practice/procedure in all courts;
c) Admission to the practice of law;
d) 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
(3) Not diminish/increase/modify
substantive rights.

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6) Appoint all Judiciary officials/EEs in accordance 1) Incapable of pecuniary estimation;

with the Civil Service Law. • If the action is primarily for the recovery of
a sum of money, the claim is considered
CONSTITUTIONAL COMMISSSIONS capable of pecuniary estimation, and
• General rule: Decisions/orders/rulings of jurisdiction over the action will depend on
constitutional commissions (CSC, COMELEC the amount of the claim. [RCPI v. CA
and COA) may be brought to the SC on (2002)]
certiorari by the aggrieved party, within 30 • If the basic issue is something other than
days from receipt of copy. [Art. 9-A, Sec. 7, the right to recover a sum of money, if the
Consti] money claim is purely incidental to, or a
• Exception: If otherwise provided by the consequence of, the principal relief sought,
Constitution or by law. the action is one where the subject of the
• CSC judgments/decisions/orders are litigation may not be estimated in terms of
within the exclusive appellate money. [Soliven v. Fastforms (1992)]
jurisdiction of the CA through Rule 43. • If the thing sought to be deposited or
[RA 7902] consigned is a sum of money, the amount
• CTA judgments/decisions are now of the debt due is determinable and
appealable by petition for review on capable of pecuniary estimation. [Ascue v.
certiorari to the SC. [RA 9282] CA (1991)]
• Action for support is incapable of pecuniary
COURT OF APPEALS [Sec. 9, BP 129] estimation because the court is asked to
determine first WON the plaintiff is indeed
ORIGINAL JURISDICTION entitled to support. [Baito v. Sarmiento
• Mandamus, prohibition, certiorari, habeas (1960)]
corpus and quo warranto, and auxiliary • Action for specific performance is incapable
writs/processes, WON in aid of its appellate of pecuniary estimation. [Manufacturer’s
jurisdiction. Distributor’s v. Yu Siu Liong (1966)]
• The jurisdiction of the respective courts is
EXCLUSIVE ORIGINAL JURISDICTION determined by the value of the demand
• Annulment of RTC judgments. and not the value of the transaction out of
which the demand arose. The alternative
EXCLUSIVE APPELLATE JURISDICTION prayer for specific performance is also of
• Final judgments/decisions/resolutions/orders/ the same value, for the alternative prayers
awards of: would not have been made in the complaint
1) RTC; if one was more valuable than the other.
2) Quasi-judicial agencies/instrumentalities/ [Cruz v. Tan (1950)]
boards/commissions including: • Rescission is a counterpart of specific
a) SEC; performance therefore also incapable of
b) Social Security Commission; pecuniary estimation. [Lapitan v. Scandia
c) ECC; (1968)]
d) CSC. • Action for declaration of nullity of a deed of
• Exception: Those falling within the partition is incapable of pecuniary
SC’s appellate jurisdiction of the estimation. [Russel v. Vestil (1999)]
Supreme Court in accordance with: • An action for expropriation is incapable of
(1) The Constitution; pecuniary estimation. [Bardillon v. Masili
(2) Labor Code; (2003)]
(3) BP 129; 2) Title to, or possession of, real property (or any
(4) Sec. 17, Par. 3(1) and Par. 4(4) of interest therein) where the property’s assessed
the Judiciary Act of 1948. value exceeds P20K or P50K (for civil actions in
• Supposed appeals from the NLRC to the SC are Metro Manila);
interpreted and hereby declared to mean and • Exception: Forcible entry into and
refer to petitions for certiorari under Rule 65. unlawful detainer of lands/buildings.
All such petitions should henceforth be initially 3) Admiralty and maritime jurisdiction where the
filed in the CA in strict observance of the demand/claim exceeds P300K or P400K (in
doctrine on the hierarchy of courts as the Metro Manila);
appropriate forum for the relief desired. [St. • Maritime and admiralty cases involve trade
Martin’s Funeral Home v. NLRC (1998)] and transactions in the sea. Maritime
jurisdiction includes maritime tort. [Negre
POWERS v. Cabahug (1966)]
1) Try cases; 4) Probate (testate and intestate) where the gross
2) Conduct hearings; value of the estate exceeds P300K or P400K (in
• Trials/hearings must be continuous and Metro Manila);
must be completed within 3 months, unless 5) Marriage contract and marital relations;
extended by the Chief Justice. 6) GENERAL ORIGINAL JURISDICTION - All
3) Receive evidence; cases not within the exclusive jurisdiction of
4) Any and all acts necessary to resolve factual any court/tribunal/person/body exercising
issues raised, including the power to grant and judicial or quasi-judicial functions;
conduct new trials or further proceedings. 7) Within the exclusive original jurisdiction of a
Juvenile and Domestic Relations Court and of
the Court of Agrarian Relations;
8) All other cases where the demand (exclusive of
interest, damages of whatever kind, attorney's
fees, litigation expenses and costs) or the value
CASES [Sec. 19, BP 129]

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of the property in controversy exceeds P300K

• The exclusion of the term “damages of LAND REGISTRATION CASES [Sec. 34, BP 129]
whatever kind” in determining the 1) Lots where there is no controversy/opposition;
jurisdictional amount under Sec. 19(8) and 2) Contested lots the value of which does not
Sec. 33 (1) of BP 129, as amended by RA exceed P100K.
7691, applies to cases where the damages • The value is to be ascertained:
are merely incidental to or a consequence a) By the claimant’s affidavit;
of the main cause of action. However, if b) By agreement of the respective
the claim for damages is the main cause of claimants, if there are more than one;
action, or one of the causes of action, the c) From the corresponding tax declaration
amount of such claim shall be considered in of the real property.
determining the jurisdiction of the court. • MTC decisions in cadastral and land
[Admin Circ. 09-94] registration cases are appealable in the same
• Actions for damages based on quasi- manner as RTC decisions.
delicts are primarily and effectively actions
for the recovery of a sum of money for the KATARUNGANG PAMBARANGAY
damages suffered because of the
defendant’s alleged tortious acts. This • Purpose: To reduce the number of court
money claim is the principal relief sought, litigations and prevent the deterioration of the
and is not merely incidental thereto or a quality of justice which has been brought about
consequence thereof. [Iniego v. Purganan by the indiscriminate filing of cases in the
(2006)] courts. [Lumbuan v. Republic (2006)]
• General rule: Authority to bring together the
ORIGINAL JURISDICTION [Sec. 21, BP 129] parties actually residing in the same city or
1) Certiorari, prohibition, mandamus, quo municipality for amicable settlement of all
warranto, habeas corpus and injunction which disputes. [Sec. 480, RA 7160]
may be enforced in any part of their respective • Exception:
regions; 1) If one party is the government;
2) Actions affecting ambassadors and other public 2) If one party is a public officer/EE and
ministers and consuls. the dispute relates to the performance
of his official functions;
APPELLATE JURISDICTION [Sec. 22, BP 129] 3) Offenses punishable by imprisonment
• All cases decided by MeTCs/MTCs/MCTCs in exceeding 1 year or a fine exceeding
their respective territorial jurisdictions. P5K;
4) Offenses with no private offended
Metropolitan, Municipal and Municipal Circuit Trial Courts
5) Real properties located in different
EXCLUSIVE ORIGINAL JURISDICTION [Sec. 33, BP cities/municipalities;
129] • Exception to exception: Parties
1) Civil actions and probate proceedings (testate agree to submit their differences to
and intestate), including the grant of provisional amicable settlement by an
remedies, where the value of the personal appropriate lupon.
property, estate or amount of the demand does 6) Parties who actually reside in
not exceed P300K or P400K (in Metro Manila); barangays of different
• Interest, damages of whatever kind, cities/municipalities;
attorney's fees, litigation expenses and • Exception to exception: If such
costs shall be included in the determination barangay units adjoin each other
of the filing fees. and the parties agree to submit
• If there are several claims or causes of their differences to amicable
actions between the same/different parties settlement by an appropriate lupon.
in the same complaint, the amount of the 7) Such disputes which the President may
demand shall be the totality of the claims in determine in the interest of justice or
all the causes of action, WON the causes of upon the recommendation of the
action arose out of the same/different Secretary of Justice.
2) Forcible entry and unlawful detainer; VENUE [Sec. 409, RA 7160]
• If the defendant raises the question of
ownership in his pleadings and the question Disputes between persons Their barangay
of possession cannot be resolved without actually residing in the
same barangay
deciding the issue of ownership, the issue of
ownership shall be resolved only to Disputes between actual Barangay where the
residents of different respondent (or any of the
determine the issue of possession.
barangays within the same respondents) actually
• That the MeTC has jurisdiction even in city/municipality resides, at the
cases where the issue of possession is complainant's election
closely intertwined with the issue of
Disputes on real property Barangay where the real
ownership is now a settled doctrine in (or any interest therein) property (or the larger
ejectment proceedings. [Heirs of B. portion thereof) is situated
Hernandez v. Vergara (2006)] Disputes arising at the Barangay where the
3) All civil actions that involve title to, or workplace or at the workplace or institution is
possession of, real property (or any interest institution where the parties located
therein) where the assessed value of the are enrolled
property (or interest therein) does not exceed
P20K or P50K (in civil actions in Metro Manila).

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• Any individual who has a cause of action
against another individual may complain (orally
or in writing) to the barangay’s lupon
chairperson. I. PRELIMINARIES
• Within the next working day, the lupon
chairperson shall summon the respondents,
with notice to the complainants, for them and
their witnesses to appear before him for
mediation. If the mediation effort fails within 15
days from the 1st meeting, he shall set a date
for the constitution of the pangkat. DEFINITION
• While the dispute is under mediation, the
prescriptive periods for offenses and causes of • ACTION – An ordinary suit in a court of justice
action shall be interrupted upon filing the by which one party prosecutes another for the
complaint with the punong barangay. Such enforcement/protection of a right or the
interruption shall not exceed 60 days from the prevention/redress of a wrong.
filing of the complaint with the punong
• The prescriptive periods shall resume upon 1) CRIMINAL ACTION – One by which the State
receipt by the complainant of the complaint or prosecutes a person for an act/omission
the certificate of repudiation or of the punishable by law. [Rule 1, Sec. 3(b)]
certification to file action issued by the lupon or 2) CIVIL ACTION – One by which a party
pangkat secretary. prosecutes another for the
• The pangkat shall arrive at a enforcement/protection of a right or the
settlement/resolution of the dispute within 15 prevention/redress of a wrong. [Rule 1, Sec.
days from the day it convenes, extendible for 3(a)]
another period which shall not exceed 15 days, a) Ordinary;
except in clearly meritorious cases. b) Special.

EFFECT [Sec. 416, RA 7160] Action Special

• General rule: Same as a court’s final Proceeding
judgment, upon the expiration of 10 days from As to parties Involves 2 or Involves at least 1
more parties party or 2 or more
the date thereof.
parties in proper
• Exception: cases
1) If the settlement was repudiated: As to cause of Involves a right May involve a
• By any party, within 10 days from the action and a violation of right, but there
date of the settlement; such right by the need not be a
• By filing with the lupon chairperson a defendant which violation of this
statement to that effect, sworn to causes some right
before him; damage/prejudice
upon the plaintiff
• Where the consent is vitiated by
As to Requires the Requires no such
formalities application of formalities, as it
• Where there is sufficient basis for the legal remedies in may be granted
issuance of the certification for filing a accordance with upon application
complaint. the prescribed
2) If a petition to nullify the award was filed rules
before the proper city/municipal court. As to Ordinary rules of Special rules of
governing procedure procedure
EXECUTION [Sec. 417, RA 7160] rules
As to appeal Cannot be directly Can be
• By the lupon, within 6 months from the date of
from an and immediately immediately and
the settlement. interlocutory appealed to the directly appealed
After the lapse of the 6 months, by action in the order appellate court to the appellate
appropriate city/municipal court. until after final court
judgment on the


• As to nature:

Ordinary civil action Special civil action

Governed by ordinary Also governed by ordinary
rules rules but subject to
specifically prescribed rules
(Rules 62 to 71)

• As to object:

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• As to cause:
Action in rem Action in Action
personam quasi in rem
Real action Personal Mixed action
Directed against Directed against Directed against
the thing itself particular particular
Ownership or Personal Both real and
persons persons
possession of property is personal
Jurisdiction over Jurisdiction over Jurisdiction over
real property is sought to be properties are
the person of the person of the person of
involved recovered or involved
the defendant is the defendant is the defendant is
damages for
not required required not required as
breach of
long as
contract are
jurisdiction over
the res is
Founded on Founded on Founded on
privity of real privity of both
A proceeding to An action to A proceeding to
estate contract
determine the impose subject the
Filed in the Filed in the The rules on
state/ responsibility/ interest of a
court where the court where the venue of real
condition of a liability upon a named
property (or plaintiff or any actions govern
thing person directly defendant over
any portion of the
a particular
thereof) is defendants
property to an
situated resides, at the
plaintiff’s option
burdening it
Ex: Accion Ex: Action for a Ex: Accion
Judgment is Judgment is Judgment is
reivindicatoria sum of money publiciana with
binding on the binding only binding upon
a claim for
whole world upon parties particular
impleaded or persons
their successors
• As to place of filing: in interest
Ex: Accion Ex: Action for Ex: Action for
Local action Transitory action reivindicatoria; specific partition; action
One that could be One that could be annulment of performance; to foreclose real
instituted in one specific prosecuted in any one of marriage; action to estate
place several places naturalization recover money mortgage
proceedings or property
(real or
3) To avoid the costs and expenses
incident to numerous suits.
• CAUSE OF ACTION – The act/omission by 2, Sec. 4]
which a party violates a right of another. [Rule 1) Filing of the 1st complaint may be pleaded in
2, Sec. 2] abatement of the 2nd complaint, on the ground
of litis pendentia; or
ELEMENTS OF A CAUSE OF ACTION 2) A judgment upon the merits in any of the
1) Plaintiff’s legal right; complaints is available as a bar in the others,
2) Defendant’s correlative obligation to respect on ground of bar by former judgment or res
plaintiff’s right; judicata.
3) Defendant’s act/omission in violation of 3) A MTD under Rule 16 Sec. 1(e) or (f) may be
plaintiff’s right. filed in order that the complaint may be
• Every ordinary civil action must be based on a
cause of action [Rule 2, Sec. 1] • A single act/omission can be violative of
• A cause of action stems from the sources of various rights at the same time, as when the
obligations under Art. 1156, CC (law, contract, act constitutes juridically a violation of several
quasi-contract, acts and omissions punishable separate and distinct legal obligations.
by law and quasi-delict). However, where there is only one delict/wrong,
there is but a single cause of action regardless
SPLITTING OF CAUSE OF ACTION of the number of rights that may have been
violated belonging to one person.
• Definition: The act of dividing a single or The singleness of a cause of action lies
indivisible cause of action into several parts or in the singleness of the delict/wrong violating
claims and bringing several actions thereon. It the rights of a person. If only 1 injury resulted
is not allowed. from several wrongful acts, only 1 cause of
• A party may not institute more than one suit action arises. [Joseph v. Bautista (1989)]
for a single cause of action. [Rule 2, Sec. 3] • For a single cause of action or violation of a
• Purpose: [City of Bacolod v. SM Brewery] right, the plaintiff may be entitled to several
1) To prevent repeated litigation between reliefs. It is the filing of separate complaints for
the same parties in regard to the same these several reliefs that constitutes splitting up
subject or controversy; of the cause of action which is proscribed by
2) To protect the defendant from Rule 2, Sec. 3 and 4. [City of Bacolod v. SM
unnecessary vexation. Nemo debet Brewery (1969)]
vexare pro una et eadem causa (No
man shall be twice vexed for one and
the same cause);

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JOINDER OF CAUSES OF ACTION (2) A political party incorporated under Act

1459 [now BP 68 (Corporation Code)];
• If the plaintiff has several causes of action (3) A registered labor union [Sec. 243, PD
against the same defendant, he may join them 442 (Labor Code)], with respect to its
all in a single complaint, although he is not property.
obligated to do so. The joinder of causes of 2) He must have the legal capacity to sue;
action is not compulsory but purely permissive 3) He must be the real party in interest.
as the plaintiff can always file separate actions
for each cause of action. • The rule is that only natural or juridical persons
or entities authorized by law may be parties in
REQUISITES FOR JOINDER OF CAUSES OF ACTION a civil case. A sole proprietorship is not vested
[Rule 2, Sec. 5] with juridical personality and cannot sue or file
1) The party joining the causes of action must or defend an action. There is no law
comply with the rules on joinder of parties; authorizing sole proprietorship to file a suit. A
2) The joinder shall not include special civil actions sole proprietorship does not possess a judicial
or actions governed by special rules; personality separate and distinct from the
3) Where causes of action are between the same personality of the owner of the enterprise.
parties but pertain to different [Berman v. Cheng (2005)]
venues/jurisdictions, the joinder may be • An unlicensed foreign corporation is
allowed in the RTC provided one of the causes nonetheless permitted to bring suit in the
of action are within the RTC’s jurisdiction and Philippines if it is suing on an isolated
the venue lies therein; transaction. Thus, the ascertainment of
4) TOTALITY RULE - Where the claims in all the whether a foreign corporation is merely suing
causes of action are principally for recovery of on an isolated transaction or is actually doing
money, the aggregate amount claimed shall be business in the Philippines requires the
the test of jurisdiction. elicitation of at least a preponderant set of
• Note: The Totality Rule under Rule 2, Sec. facts. [Rimbunan v. Oriental (2005)]
5 seems to be inconsistent with the Totality • Note: A foreign corporation may be party
Rule under BP 129. Under the latter, where to an action in Philippine courts:
there are several claims or causes of actions 1) If licensed to engage in business in the
between the same/different parties, Philippines, it may sue or be sued in
embodied in the same complaint, the our courts;
amount of the demand shall be the totality 2) If not licensed, it cannot sue, but it
of the claims in all causes of actions, may be sued in our courts;
irrespective of whether the causes of action 3) If not engaged in business in the
arose out of the same/different Philippines, it may sue in courts on a
transactions. Remember that in statutory single isolated transaction, but it
construction, in case of conflict, substantive cannot be sued in our courts on such a
law prevails over procedural laws. transaction.
• The Roman Catholic Church has legal capacity
Splitting of cause of Joinder of causes of to sue. [Barlin v. Ramirez]
action action
There is a single cause of Contemplates several Lack of legal capacity to Lack of legal
action causes of action sue personality to sue
Prohibited Encouraged
It causes multiplicity of It minimizes multiplicity of The plaintiff’s general The plaintiff is not the
suits and double vexation suits and inconvenience to disability to sue, such as real party in interest
on the part of the the parties on account of minority,
defendant insanity, incompetence,
lack of juridical personality
MISJOINDER OF CAUSES OF ACTIONS [Rule 2, Sec. or any other general
6] disqualifications
• Misjoinder of causes of action is not a ground
for dismissal of an action. A misjoined cause of It can be a ground for a It can be used a ground
action may, on motion or motu propio, be MTD for a MTD based on the
fact that the complaint’s
severed and proceeded with separately.
face states no cause of
• There is no sanction against non-joinder of action.
separate causes of action since a plaintiff needs
only a single cause of action to maintain an

1) PLAINTIFF – One having interest in the matter

C. PARTIES of the action or in obtaining the relief
2) DEFENDANT – One claiming an interest in the
REQUIREMENTS FOR A PERSON controversy or the subject thereof adverse to
TO BE A PARTY TO A CIVIL ACTION the plaintiff. The term may also include:
1) He must be either: should be joined as plaintiff but whose
a) A natural person; consent cannot be obtained. He may be
b) A juridical person; or made a defendant and the reason therefore
c) An entity authorized by law. shall be stated in the complaint. [Rule 3,
(1) The estate of a deceased person; Sec. 10]

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b) The original plaintiff becoming a defendant • Objections to defects in parties should be made
to the original defendant’s counterclaim; at the earliest opportunity. The moment such
c) One necessary to a complete determination defect becomes apparent, a motion to strike the
or settlement of the questions involved. names of the parties must be made. Objections
to misjoinder cannot be raised for the first time
• If a necessary party is not joined, the pleading
1) REAL PARTY IN INTEREST - [Rule 3, Sec. 2] shall set forth his name (if known) and shall
a) The party who stands to be state reason why he is omitted. If court finds
benefited/injured by the judgment in the the reason for the omission unmeritorious, it
suit; may order the inclusion of the omitted
b) The party entitled to the avails of the suit. necessary party if jurisdiction over his person
• The party’s interest must be direct, may be obtained. Failure to comply with the
substantial and material. order for inclusion, without justifiable cause, is
• Husband and wife shall sue and be sued deemed a waiver of the claim against such
jointly, except as provided by law [Rule 3, party. [Rule 3, Sec. 9]
Sec. 4] • Note: In Oposa v. Factoran, the minors
• A minor or a person alleged to be (represented by their parents) were held as real
incompetent may sue or be sued, with the parties in interest under the principle of
assistance of his father, mother, guardian, intergenerational responsibility. This doctrine is
or if he has none, a guardian ad litem. [Rule inconsistent with Rule 3, Sec. 1 which provides
3, Sec. 5] that only natural or juridical persons may be
2) REPRESENTATIVE PARTY – [Rule 3, Sec. 3] parties in a civil action.
• Those acting in fiduciary capacity, such as a
trustee/guardian/executor/administrator or KINDS OF JOINDERS OF PARTIES
a party authorized by law or ROC.
• The beneficiary shall be included in the title 1) Compulsory joinder of indispensable parties;
of the case and shall be deemed to be the [Rule 3, Sec. 7]
real party in interest. 2) Permissive joinder of necessary parties; [Rule
• An agent acting in his own name and for the 3, Sec. 8]
benefit of an undisclosed principal may sue 3) Permissive joinder of parties simple (on a
or be sued without joining the principal. common question of law or fact); [Rule 3, Sec.
• Exception: If the contract involves 6]
things belonging to the principal. [Art. 4) Class suit. [Rule 3, Sec. 12]
1883, CC] 5) Alternative defendants; [Rule 3, Sec. 13]


• Parties can be joined, as plaintiffs or
Indispensable parties Necessary parties defendants, in one single complaint or may
[Rule 3, Sec. 7] [Rule 3, Sec. 8] themselves maintain or be sued in separate
Must be joined under Should be joined suits.
any and all conditions, whenever possible; the • Requisites:
his presence being a action can proceed even 1) Right to relief arises out of the same
sine qua non for the in their absence
transaction or series of transactions;
exercise of judicial
No valid judgment if The case may be Transactions connected with the same
indispensable party is determined in court but subject matter of the suit.
not joined. the judgment therein will 2) There is a question of law or fact common
not resolve the entire to all the plaintiffs or defendants;
controversy if a 3) Such joinder is not otherwise proscribed by
necessary party is not the rules on jurisdiction and venue.
They are those with They are those whose
CLASS SUIT [Rule 3, Sec. 12]
such an interest in the presence is necessary to
controversy that a final adjudicate the whole
• Requisites:
decree would necessarily controversy but whose 1) Subject matter of the controversy is one of
affect their rights so that interests are so far common/general interest to many persons;
the court cannot separable that a final 2) The persons are so numerous that it is
proceed without their decree can be made in impracticable to join them all as parties (i.e.
presence. their absence without impracticable to bring them all before the
affecting them. court);
3) Parties brinqinq the class suit are
• Rule 3, Sec. 2 requires that an action must be sufficiently numerous and representative of
brought in the name of, but not necessarily by, the class and can fully protect the interests
the real party in interest. In fact, the practice is of all concerned;
for an attorney-in-fact to bring an action. 4) The representative sues/defends for the
[Tuason v. Bolanos] benefit of all.
• Neither misjoinder nor non-joinder of parties is • Rule 12, Sec. 3 contemplates an exceptional
ground for dismissal of the action. [Rule 3, Sec. situation where there are numerous persons all
11] in the same plight and all together instituting a
• Non-joinder of an indispensable party is not a constituency whose presence in the litigation is
ground for outright dismissal. Reasonable absolutely indispensable to the administration
opportunity must be given for his inclusion by of justice. The strict application of the rule as to
amendment of the complaint. indispensable parties would require that each
one in the class be present. In the class suit,

100% UP LAW UP BAROPS 2008 Page 138 of 227


representation of class interest which will be business maintained under such name. [Rule 14,
affected by the judgment is indispensable, but Sec. 8]
it is not indispensable to make each member of
the class an actual party. SUBSTITUTION OF PARTIES
• If a class suit is improperly brought, the action
is subject to dismissal regardless of the cause 1) Death of a party, where the claim is not
of action. extinguished by the death of the party (e.g.
• A taxpayer's suit or a stockholder's derivative cases involving property and property rights);
suit is in the nature of a class suit, although [Rule 3, Sec. 16]
subject to the other requisites of the • In this case, the heirs will be substituted
corresponding governing law especially on the for the deceased or if no legal
issue of locus standi. [Regalado] representative is named, the court will
• In a class suit, any party in interest shall have order the opposing party to procure the
the right to intervene to protect his individual appointment of an executor or
interest. administrator for the estate.
• In case of minor heirs, the court may
Class suit Permissive joinder of appoint a guardian ad litem for them.
• The substitute defendant need not be
There is a single cause of There are multiple
action pertaining to causes of action
summoned. The order of substitution shall
numerous persons. separately belonging to be served upon the parties substituted for
several persons. the court to acquire jurisdiction over the
substitute party.
ALTERNATIVE DEFENDANTS [Rule 3, Sec. 13] • When a party to a pending action dies and
• Where the plaintiff is uncertain against whom of the claim is not extinguished, it is the
several persons he is entitled to relief, he may counsel’s duty to:
join any or all of them in the alternative, a) Inform court within 30 days after such
although a right to relief against one may be death of the fact thereof;
inconsistent with a right to relief against the b) Give the name and address of the legal
other. representatives.
• Failure to comply with this duty is a
UNKNOWN IDENTITY OR NAME OF ground for disciplinary action.
2) Death or separation of a party who is a public
DEFENDANT [Rule 3, Sec. 13] officer; [Rule 3, Sec. 17]
• Requisites:
• Rules and requisites: a) Public officer is a party to an action in
1) There is a defendant; his official capacity;
2) His identity or name is unknown; b) During the pendency of the action, he
3) A fictitious name may be used because of either dies/resigns or otherwise ceases
ignorance of defendant's true name and to hold office;
said ignorance is alleged in the complaint; c) It is satisfactorily shown to the court by
4) An identifying description may be used any party, within 30 days after the
(e.g. as unknown owner/heir/devisee); successor takes office, that there is a
5) Pleading is amended when the identity or substantial need to continue/maintain
true name is discovered; the action;
6) The unknown defendant is the defendant d) The successor adopts/continues (or
being sued, not a mere additional threatens to do so) his predecessor’s
defendant. action;
• Service of summons upon a defendant whose e) The party or officer affected was given
identity is unknown may be made by reasonable notice of the application
publication in a newspaper of general therefore and accorded an opportunity
circulation in accordance with Rule 14, Sec. 14. to be heard.
However, the action must be converted into an 3) Incompetency/incapacity; [Rule 3, Sec. 18]
action in rem or quasi in rem by attaching the • If a party becomes incompetent/
defendant's property in the Philippines. incapacitated during the pendency of the
action, the action survives and may be
ENTITY WITHOUT JURIDICAL continued by/against the incompetent/
PERSONALITY AS DEFENDANT [Rule 3, Sec. incapacitated assisted by his legal guardian
15] or guardian ad litem.
4) Transfer of interest during the pendency of the
• Requisites: action. [Rule 3, Sec. 18]
1) There are 2 or more persons not organized • General rule: The rule does not consider
as a juridical entity; the transferee an indispensable party.
2) They enter into a transaction; Hence, the action may proceed without the
3) A wrong is committed against a 3rd person need to implead him.
in the course of such transaction. • Exception: When the substitution by
• Persons associated in an entity without juridical or joinder of the transferee is ordered
personality may be sued under the name by by court.
which they are generally/commonly known, but • The case will be dismissed if the
they cannot sue under such name. plaintiff’s interest is transferred to
The service of summons may be effected upon all defendant unless there are several
the defendants by serving upon any of them, or plaintiffs, in which case the remaining
upon the person in charge of the office or place of plaintiffs can proceed with their own
cause of action.

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CLAIMS [Rule 3, Sec. 20]
1) Real actions – Where the real property (or any
• Requisites: portion thereof) is located. [Rule 4, Sec. 1]
1) The action must primarily be for recovery • If the property is located at the boundaries
of money/debt or interest thereon; of 2 places, file the case in either place (at
2) The claim arose from express/implied the plaintiff’s option).
contract; • If the case involves 2 properties located in
3) Defendant dies before the entry of final 2 different places:
judgment in the court in which the action • If the properties are the object of the
was pending. same transaction, file it in any of the 2
• The defendant’s death will not result in the places;
dismissal of the action. The deceased shall be • If they are the objects of 2 distinct
substituted by his legal representatives in the transactions, separate actions should
manner provided for in Rule 3, Sec. 16, and the be filed in each place unless properly
action will continue until the entry of final joined.
judgment. 2) Personal actions – At the plaintiff’s election:
• However, execution shall not issue in favor of [Rule 4, Sec. 2]
the winning plaintiff. It should be filed as a a) Where the plaintiff or any of the principal
claim against the decedent’s estate without plaintiffs resides;
need of proving the claim. b) Where the defendant or any of the principal
defendants resides;
c) In case of a non-resident-defendant, where
INDIGENT PARTY [Rule 3, Sec. 21]
he may be found.
3) Actions against non-residents –
• INDIGENT – One who has no money or
a) Non-resident found in the Philippines –
property sufficient and available for food,
(1) For personal actions – Where the
shelter and basic necessities. He need not be a
plaintiff resides;
pauper to entitle him to litigate in forma
(2) For real actions – Where the property
is located.
• While the authority to litigate as an indigent
b) Non-resident not found in the Philippines –
party may be granted upon an ex parte
An action may be filed only when the case
application and hearing, it may be contested by
the adverse party at any time before judgment
(1) Personal status of plaintiff - Where
is rendered.
plaintiff resides;
• If one is authorized to litigate as an indigent,
(2) Any property of said defendant located
the authority shall include an exemption from:
in the Phil. - Where the property (or
1) Payment of docket fees;
any portion thereof) is situated/found.
2) Payment of TSN.
• The amount of docket and other lawful fees is a
• Actions in personam/in rem refers to the
lien on any judgment rendered in favor of
binding effect of the judgment. Real/personal
indigent party, unless court otherwise provides.
action, on the other hand refers to venue.
• Where several/alternative reliefs are prayed for
NOTICE TO THE SOLICITOR GENERAL [Rule in the complaint, the nature of the action as
3, Sec. 21] real or personal is determined by the primary
object of the suit or by the nature of the
• The court may require appearance of the OSG principal claim. Thus, where the purpose is to
in actions involving validity of any treaty, law, nullify the title to real property, the venue of
ordinance, EO, PD, rules or regulations. the action is in the province where the property
lies, notwithstanding the alternative relief
sought, recovery of damages, which is
D. VENUE OF ACTIONS predicated upon a declaration of nullity of the
• The venue of an action for review of an
administrative decision regarding real property
DEFINITION is the court of the province where the officer
who rendered the decision holds office, and not
• VENUE – Place of trial or geographical location the province where his real property is situated.
in which an action/proceeding should be • The Court may not motu propio dismiss an
brought. action on the ground of improper venue.
[Dacoycoy v. IAC]
Venue Jurisdiction • Exception: In summary procedures.
Place where the action is Power of the court to hear
• The SC has the power to change the venue to
instituted and decide a case
May be waived Jurisdiction over the
prevent a miscarriage of justice. [Art. 8, Sec. 5,
subject matter and over Consti]
the nature
of the action is conferred WAIVER OF VENUE
by law and cannot-be
• Until and unless the defendant objects to the
Procedural Substantive
venue in a motion to dismiss prior to a
May be changed by the Cannot be the subject of
written agreement of the the agreement of the responsive pleading, the venue cannot truly be
parties parties said to have been improperly laid since for all

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intents and purposes, the venue though

technically wrong may yet be considered II. PLEADINGS
acceptable to the parties for whose convenience
the rules on venue had been devised. Although
venue is mandatory, it is waivable. [Diaz v.

MEANS OF WAIVING VENUE • They are the written statements of the

1) Affirmative relief sought in the court where the respective claims and defenses of the parties,
case is filed; submitted to the court for appropriate judgment
2) Voluntary submission to the court where the [Rule 6, Sec. 1]
case is filed; • A MTD is not a pleading. However, there are
3) Failure to object via MTD; motions that actually seek judgment like a
4) Laches. motion for judgment on pleadings (Rule 34)
and motion for summary judgment (Rule 35).
Pleading Motion
Purpose: To submit a Purpose: To apply for an
1) If a specific rule/law provides otherwise (e.g. claim/defense for order not included in the
action for damages arising from libel); appropriate judgment judgment
2) If the parties have validly agreed in writing, May be initiatory Cannot be initiatory as
before the filing of the action, on the exclusive they are always made in a
venue thereof. case already filed in court.
Always filed before May be filed even after
• In the absence of qualifying restrictive
judgment judgment
words (e.g. “only/solely/exclusively in such
Only 9 kinds of pleading Many kinds of motion are
court”), venue stipulation is merely are allowed by the ROC allowed
permissive; that is, the stipulated venue is
in addition to the venue provided for in the PLEADINGS ALLOWED [Rule 6, Sec. 2]
rules. [Polytrade Corp. v. Blanco] 1) Complaint;
2) Counterclaim;
3) Cross-claim;
4) 3rd-party Complaint,
5) Complaint-in-intervention;
6) Answer;
7) Reply;
8) Counter-counterclaim;
9) Counter-crossclaim.


1) CAPTION – Court’s name, action’s title (i.e.

parties’ names) and docket number.
2) 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
• 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.
3) 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.


1) Deliberately filing an unsigned pleading;
2) Deliberately signing a pleading in violation of
the Rules;

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3) Alleging scandalous/Indecent matter in the statement of the ultimate facts constituting the
pleading; plaintiff’s cause/s of action, not evidentiary
4) Failing to promptly report a change of his facts or legal conclusions.
address. • It shall contain in a methodical and logical form
a plain, concise and direct statement of
VERIFICATION [Rule 7, Sec. 4] ultimate facts on which the plaintiff relies for his
claim, omitting statement of mere evidentiary
• Pleadings need not be verified, unless otherwise facts. Its function is to inform the defendant
provided by the law/rules. clearly and definitely of claims made against
him so that he may be prepared to meet the
HOW A PLEADING IS VERIFIED issues at trial. It should inform the defendant of
• By an affidavit that: all material facts on which the plaintiff relies to
1) That the affiant read the pleading; support his demand. It should state the theory
2) That the allegations therein are true and of a cause of action which forms the bases of
correct of his personal knowledge or based plaintiff’s claim of liability. [Tantuico v. Republic
on authentic documents. (1991)]
• ULTIMATE FACTS – Essential facts
constituting the plaintiff’s cause of action. A fact
is essential if it cannot be stricken out without
SHOPPING (CNFS) [Rule 7, Sec. 5] leaving the statement of the cause of action
• Definition: The filing of multiple suits in • Not ultimate facts:
different courts, simultaneously or successively, 1) Evidentiary or immaterial facts;
involving the same parties, to ask the courts to 2) Legal conclusions, conclusions or
rule on the same/related causes and/or to grant inferences of facts from facts not
the same or substantially the same relief. stated, or incorrect inferences or
conclusions from facts stated;
TEST TO DETERMINE WON THERE IS FORUM • Conclusions of law alleged in the
SHOPPING complaint are not binding on the
• WON in the 2 or more cases pending, there is court.
identity of: 3) The details of probative matter or
1) Parties; particulars of evidence, statements of
2) Rights or causes of action; law, inferences and arguments.
3) Relief sought.
• CNFS is to be executed by the petitioner, not by THE COMPLAINT
the counsel. • WON upon the averment of facts, a valid
• CNFS is required only for complaints or judgment may be properly rendered.
initiatory pleadings (e.g. permissive
counterclaim, cross-claim etc.). 2. ANSWER [Rule 6, Sec. 4]
• CNFS is not required in a compulsory
counterclaim. A counterclaim is not an
• Definition: The pleading where the defendant
initiatory pleading. [UST Hospital v. Surla]
sets forth his affirmative/negative defenses. It
• Failure to comply is not curable by mere
may also be the response to a counterclaim or
amendment of the pleading but shall be cause
a cross-claim.
for the dismissal of the case, without prejudice
and upon motion and after hearing, unless
otherwise provided.
1) AFFIRMATIVE DEFENSES – Allegations of
new matters which, while hypothetically
admitting the material allegations in the
claimant’s pleading, would nevertheless
1) Indirect contempt;
prevent/bar recovery by him. It includes fraud,
2) Administrative and criminal actions.
prescription, release, payment and any other
matter by way of confession and avoidance.
2) NEGATIVE DEFENSES – Specific denials of the
material facts alleged in the pleading of the
1) Ground for summary dismissal of the case with
claimant essential to his cause of action.
• Kinds of denial:
2) Direct contempt and administrative sanctions.
a) SPECIFIC DENIAL – Specifies each
material allegation of fact the truth of
• Pleadings as well as remedial laws should be
which he does not admit, and sets forth
liberally construed in order that the litigant may
the substance of the matters upon
have ample opportunity to prove their
which he relies to support his denial.
respective claims, and possible denial of
substantial justice, due to technicalities, may be
Specifes so much of it as is true and
avoided. [Gerales v. CA (1993)]
material, and deny the remainder.
c) Specific denial for lack of
DIFFERENT PLEADINGS knowledge/information sufficient to
form as belief as to the truth of a
1. COMPLAINT [Rule 6, Sec. 3] material averment made in the
• Definition: The pleading alleging the plaintiff’s
cause/s of action. It should contain a concise

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d) SPECIFIC DENIAL UNDER OATH - (3) Excusable neglect;

Contests the authenticity or due (4) When justice requires.
execution of an actionable document. 2) After the answer: [Rule 11, Sec. 9]
• ACTIONABLE DOCUMENT - A • Counterclaims/cross-claims arising after the
document which is really the basis answer, with the court’s permission, may be
of the cause of action (or defense), presented as a counterclaim/cross-claim by
and not merely evidentiary thereof. supplemental pleading before judgment.
• Genuineness and due execution of
an actionable instrument shall be RULES ON COUNTERCLAIMS
deemed admitted unless the • A counterclaim before the MTC must be within
adverse party, under oath, the jurisdiction of said court both as to the
specifically denies them, and sets amount and nature.
forth what he claims to be the • In an original action before the RTC, the
facts. [Rule 8, Sec. 8] counterclaim may be considered compulsory
• Exception: the adverse party regardless of the amount. [Rule 6, Sec. 7]
does not appear to be a party to • If a counterclaim is filed in the MTC in excess of
the instrument. [Donato v. CA its jurisdictional amount, the excess is
(1993)] considered waived. [Agustin v. Bacalan]
• Genuineness is alleged by: • In Calo v. Ajax, the remedy where a
(1) copying a substantial portion of counterclaim is beyond the jurisdiction of
the document into the pleading; the MTC is to set off the claims and file a
(2) annexing/incorporating the separate action to collect the balance.
document into the pleading;
(3) both copying and annexing KINDS OF COUNTERCLAIMS
document into the pleading.
e) NEGATIVE PREGNANT – Denial Compulsory Permissive
pregnant with an admission counterclaim counterclaim
• It is a denial pregnant with the One which arises out of or It does not arise out of
admission of the substantial facts in is necessarily connected nor is it necessarily
with the transaction or connected with the
the pleading responded to which
occurrence -that is the subject matter of the
are not squarely denied. It is in subject matter of the opposing party's claim.
effect an admission of the averment opposing party's claim.
it is directed to. [Philamgen v. Does not require for its May require for its
Sweet Lines (1993)] adjudication the presence adjudication the
of third parties of whom presence of third parties
INSUFFICIENT DENIALS OR DENIALS AMOUNTING the court cannot acquire over whom the court
TO ADMISSIONS jurisdiction. cannot acquire
1) General denial;
Barred if not set up in the Not barred even if not
2) Negative pregnant. action. set up in the action.
Need not be answered; Must be answered,
WAIVER OF DEFENSES no default. otherwise, the defendant
• Defenses and objections not pleaded either in a can be declared in
MTD or in the answer, are deemed waived. default.
[Rule 9, Sec. 1]
• Exception: • A permissive counterclaim requires the
1) LOJ over the subject matter; payment of docket fees. [Sun Insurance v.
2) Litis pendentia; Asuncion]
3) Res judicata; • A plaintiff who fails or chooses not to answer a
4) Prescription compulsory counterclaim may not be declared
in default, principally because the issues raised
in the counterclaim are deemed automatically
3. COUNTERCLAIM [Rule 6, Sec. 6]
joined by the allegations in the complaint. [Gojo
v. Goyala]
• Definition: Any claim which a defending party
may have against an opposing party.
• A counterclaim is in the nature of a cross-
1) It must arise out of, or be necessarily
complaint. Although it may be alleged in the
connected with, the transaction/occurrence that
answer, it is not part of the answer. Upon its
is the subject matter of the opposing party's
filing, the same proceedings are had as in the
original complaint. For this reason, it must be
2) It does not require for its adjudication the
answered 10 days from service.
presence of 3rd parties of whom the court
cannot acquire jurisdiction;
3) It must be within the court’s jurisdiction.
1) Included in the answer: [Rule 11, Sec. 8]
• A compulsory counterclaim or a cross-claim
• General rule: A compulsory counterclaim not
that a defending party has at the time he
set up in the answer is deemed barred.
files his answer shall be contained therein.
• Exception: If it is a counterclaim which
• Exception: Pleadings may be amended
either matured or was acquired by a party
under Rule 11, Sec. 10:
after serving his answer. In this case, it
a) By leave of court;
may be pleaded by filing a supplemental
b) Before judgment;
answer or pleading before judgment. [Rule
c) On the grounds of:
11, Sec. 9]
(1) Oversight;
• The filing of a MTD and the setting up of a
(2) Inadvertence;
compulsory counterclaim are incompatible

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remedies. In the event that a defending party • The dismissal of the complaint carries with it
has a ground for dismissal and a compulsory the dismissal of a cross-claim which is purely
counterclaim at the same time, he must choose defensive, but not a cross-claim seeking an
only one remedy. If he decides to file a MTD, he affirmative relief.
will lose his counterclaim. But if he opts to set
up his counterclaim, he may still plead his Cross-claim Counterclaim 3rd Party
ground for dismissal as an affirmative defense complaint
in his answer. Against a co- Against an Against a person
• If any of the grounds to dismiss under Rule 17, party opposing party not a party to
the action
Sec. 3 arises, the proper recourse for a
Must arise out of May arise out of Must be in
defendant who desires to pursue his the transaction or be necessarily respect of the
compulsory counterclaim in the same that is the connected with opponent’s
proceeding is not a MTD. Instead, he should subject matter of the transaction (plaintiff’s) claim
only move to have the plaintiff declared non- the original or the subject
suited on the complaint so that the latter can action or of a matter of the
no longer present his evidence thereon, and counterclaim opposing party’s
simultaneously move that he be declared as in therein claim
default on the compulsory counterclaim, and
counterclaim), or
reserve the right to present evidence ex parte it may not
on his compulsory counterclaim. [BA Finance v. (permissive
Co (1993)] counterclaim)
• Under Section 3, Rule 17, dismissal of
action due to plaintiff’s fault shall be 5. COUNTER-COUNTERCLAIMS
without prejudice to the defendant’s right
to prosecute his counterclaim in the AND COUNTER-CROSS-CLAIMS
same/separate action. [Rule 6, Sec. 9]


IS COMPULSORY OR PERMISSIVE asserted against an original counterclaimant.
conducting separate trials of the respective against an original cross-claimant.
claims would entail substantial duplication of
effort and time and involves many of the same 6. REPLY [Rule 6, Sec. 10]
factual and legal issues. [Meliton v. CA]
• WON substantially the same evidence to sustain • Definition: The plaintiff’s response to the
the counterclaim will refute the cause of action defendant's answer, the function of which is to
alleged in the plaintiff's complaint. The cause deny or allege facts in denial or in avoidance of
of action and relief prayed for in the complaint new matters alleged by way of defense in the
and in the counterclaim must necessarily be answer and thereby join or make issue as to
different, but both arise out of the same legal such new matters.
relationship. [Leonen]
REMEDIES • General rule: Filing a reply is merely optional.
1) For failure to raise a compulsory counterclaim – New facts that were alleged in the answer are
None. A compulsory counterclaim not set up is deemed controverted should a party fail to
considered barred. [Rule 9, Sec. 2] reply thereto.
2) Oversight, inadvertence, excusable neglect, etc. • Exception: Reply is required:
- With leave of court, counterclaim may be set 1) Where the answer is based on an
up by amendment before judgment. [Rule 11, actionable document. [Rule 8, Sec. 8]
Sec. 10] 2) Where the answer alleges the defense
3) If the main action fails – Motion to declare of usury. [Rule 8, Sec. 11]
plaintiff non-suited in the main action and as in
default in the counterclaim. [BA Finance v. Co] 7. 3RD – PARTY COMPLAINT [Rule 6,
Sec. 11]
4. CROSS-CLAIM [Rule 6, Sec. 8]
• Definition: It is a claim that a defending party
REQUISITES FOR A CROSS-CLAIM may, with leave of court, file against a person
1) A claim by one party against a co-party; not a party to the action for contribution,
2) It must arise out of the subject matter of the indemnity, subroqation or any other relief, in
complaint or of the counterclaim; respect of his opponent's claim. There could
3) The cross-claimant is prejudiced by the claim also be a 4th/etc.-party complaint with the same
against him by the opposing party. purpose and function.

• A cross-claim is always compulsory. A cross- 3rd-party complaint Complaint in

claim not set up shall be barred. [Rule 9, Sec. intervention
2] Brings into the action a Same
• Exception: 3rd person who was not
1) When it is outside the court’s originally a party
jurisdiction; Initiative is with the Initiative is with a non-
person already a party to party who seeks to join the
2) If the court cannot acquire jurisdiction
the action action
over 3rd parties whose presence is
necessary for the adjudication of said 3rd-party complaint Counterclaim
cross-claim. In this case, the cross- Need not be within the Must be within the
claim is considered permissive. jurisdiction of the court jurisdiction of the court

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trying the main case trying the main case

Diminishes/defeats the Need not diminish/defeat THREE WAYS OF MAKING A SPECIFIC DENIAL
recovery sought by the the recovery sought by the 1) SPECIFIC ABSOLUTE DENIAL – By
opposing party opposing party specifically denying the averment and,
Cannot exceed the May exceed in amount or
whenever practicable, setting forth the
amount stated in the be different in kind from
original complaint that sought in the original
substance of the matters relied upon for such
complaint denial.
1) WON it arises out of the same transaction on allegation of lack of knowledge or information
which the plaintiff's claim is based, or although sufficient to form a belief as to the truth of the
arising out of another/different transaction, is averment in the opposing party's pleading.
connected with the plaintiff’s claim; • This does not apply where the fact as to
2) WON the 3rd-party defendant would be liable to which want of knowledge is asserted is, to
the plaintiff or to the defendant for all/part of the knowledge of the court, so plain and
the plaintiff’s claim against the original necessarily within the defendant's
defendant; knowledge that his averment of ignorance
3) WON the 3rd-party defendant may assert any must be palpably untrue.
defenses which the 3rd-party plaintiff has or
may have to the plaintiff’s claim. • General rule: Allegations not specifically
denied are deemed admitted [Rule 8, Sec. 11]
• Leave of court to file a 3rd-party complaint may • Exceptions:
be obtained by motion under Rule 15. 1) Allegations as to the amount of
• Summons on 3rd (4th/etc.) – party defendant unliquidated damages;
must be served for the court to obtain 2) Allegations immaterial to the cause of
jurisdiction over his person, since he is not an action;
original party. • Allegations of merely evidentiary or
• Where the trial court has jurisdiction over the immaterial facts may be expunged
main case, it also has jurisdiction over the 3rd- from the pleading or may be
party complaint, regardless of the amount stricken out on motion. [Rule 8,
involved as a 3rd-party complaint is merely Sec. 12]
auxiliary to and is a continuation of the main 3) Conclusion of law.
action. [Republic v. Central Surety]
• A 3rd-party complaint is not proper in an action
for declaratory relief.


IN GENERAL [Rule 8, Sec. 1]

• In a methodical and logical form.
• Plain, concise and direct statement of the
ultimate facts on which the party pleading relies
for his claim/defense.
• Omit evidentiary facts.
• If defense relied on based on law, cite the
provisions and their applicability.


1) Conditions precedent; but there must still be an
allegation that the specific condition precedent
has been complied with, otherwise it will be
dismissed for lack of cause of action;
2) Capacity to sue or be sued;
3) Capacity to sue or be sued in a representative
4) Legal existence of an organization ;
• A party desiring to raise an issue as to the
legal existence or capacity of any party to
sue or be sued in a representative capacity
shall do so by specific denial which shall
include supporting particulars within the
pleader's knowledge.
5) Malice/intent/knowledge or other condition of
the mind;
6) Judgments of domestic/foreign courts,
tribunals, boards or officers (without need to
show jurisdiction);
7) Official documents/acts.


• Circumstances showing fraud/mistake in all
averments of fraud/mistake.

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By On the date the Registry receipt,

registered pleading was and affidavit of the
mail deposited with the person who did the
III. ACQUISITION OF JURISDICTION post office mailing with:
xxx Xxx 1) Full statement
of the date/place of
depositing the mail
A. FILING AND SERVICE in the post office in
a sealed envelope
addressed to the
xxx Xxx 2) Postage fully
• FILING – The act of presenting the pleading or paid
other paper to the clerk of court. [Rule 13, Sec. xxx Xxx 3) Instructions to
2] the postmaster to
return the mail to
• SERVICE – The act of providing a party or his
the sender after 10
counsel with a copy of the pleading or paper days if undelivered
concerned. [Rule 13, Sec. 2]


SERVED [Rule 13, Sec. 4]
1) Pleading subsequent to the complaint; MODES OF SERVICE [Rule 13, Sec. 5]
2) Appearance;
3) Written Motion; 1) Personal service. [Rule 13, Sec. 6]
4) Notice; a) Delivering personally a copy to the party or
5) Order; his counsel.
6) Judgment; b) Leaving a copy in counsel's office with his
7) Demand; clerk or with a person having charge
8) Offer of Judgment; thereof.
9) Resolution; c) If no person is found in his office, or if his
10) Similar papers. office is unknown, or if he has no office –
Leaving the copy between 8am and 6 pm
1. FILING at the party's or counsel's residence (if
known) with a person of sufficient age and
discretion then residing therein.
MANNER OF FILING [Rule 13, Sec. 3]
2) Service by (registered) mail. [Rule 13, Sec. 7]
• By depositing the copy in the office, in a
1) Personally. sealed envelope, plainly addressed to the
• By personally presenting the original to the party or his counsel at his office or at his
clerk of court. residence (if known), with postage fully
• The pleading is deemed filed upon the pre-paid, and with instructions to the
receipt of the same by the clerk of court postmaster to return the mail to the sender
who shall endorse on it the date and hour after l0 days if undelivered.
of filing. • If no registry service is available in the
• If a party avails of a private carrier, the locality of either sender or addressee,
date of the court’s actual receipt of the service may be done by ordinary mail.
pleading (not the date of delivery to the 3) Substituted service. [Rule 13, Sec. 8]
private carrier) is deemed to be the date of • By delivering the copy to the clerk of court,
the filing of that pleading. [Benguet Electric with proof of failure of both personal
Cooperative v. NLRC] service and service by mail.
2) By registered mail. completeness of proof of service
• Filing by mail should be through the service
registry service (i.e. by depositing the Personal Upon actual Written admission of
pleading in the post office). service delivery the party served
• The pleading is deemed filed on the date it xxx xxx Official return of the
was deposited with the post office. server; or affidavit
• If registry service is not available in the of the party serving,
locality of either sender or addressee, with a full statement
service may be done by ordinary mail. of the
of service
PROOF OF FILING [Rule 13, Sec. 12]
Service by 10 days after Affidavit of the
• Filing is proved by its existence in the record of ordinary mailing, unless person mailing,
mail otherwise showing facts that
the case.
provided by the comply with Rule
• If it is not in the record: court 13, Sec. 7
Service by Whichever is Affidavit of the
Xxx when pleading is proof of filing
registered earlier: person mailing,
deemed filed
mail showing facts that
Personally Upon receipt of the Written/stamped comply with Rule
pleading by the acknowledgment 13, Sec. 7
clerk of court by the clerk of
court Xxx 1) Actual receipt Registry receipt
by the addressee issued by the post

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Xxx 2) 5 days after xxx HOW TO AMEND PLEADINGS [Rule 10, Sec.
received 1st
notice 1) Adding an allegation of a party;
SERVICE OF JUDGMENT, FINAL ORDERS 2) Adding the name of a party;
3) Striking out an allegation of a party;
OR RESOLUTIONS [Rule 13, Sec. 9] 4) Striking out the name of a party;
5) Correcting a mistake in the name of a party;
1) By personal service; and
2) By registered mail; 6) Correcting a mistake or inadequate allegation
3) By publication if party is summoned by or description in any other respect.
publication and has failed to appear in the
action. • Purpose: That the actual merits of the
controversy may speedily be determined,
PRIORITY IN MODES OF FILING AND without regard to technicalities, and in the
SERVICE [Rule 13, Sec. 11] most expeditious and inexpensive manner.
• As a general policy, liberality in allowing
• General rule: Personal filing and service. amendments is greatest in the early stages of a
Resort to other modes of filing and service law suit, decreases as it progresses and
must be accompanied by an explanation why changes at times to a strictness amounting to a
the service/filing was not done personally. prohibition. This is further restricted by the
• If there is no written explanation, the paper condition that the amendment should not
considered not filed. prejudice the adverse party or place him at a
• Exception: Papers emanating from the disadvantage. [Barfel Development v. CA
court (1993)]

FORM [Rule 10, Sec. 7]

NOTICE OF LIS PENDENS [Rule 13, Sec. 14] • A new copy of the entire pleading,
incorporating the amendments, which shall be
• LIS PENDENS - Notice of a pendency of the indicated by appropriate marks, shall be filed.
action between the parties involving title to or
right of possession over real property. EFFECT [Rule 10, Sec. 8]
• Requisites: [AFP Mutual Benefit Association v. • The amendment supersedes the amended
CA] pleading.
1) Action affects the title or the right of • Claims and defenses in superseded pleading
possession of the real property; which are not incorporated in the amended
2) Affirmative relief is claimed; pleading are deemed waived.
3) Notice shall contain the name of the parties • Admissions made in the superseded pleading
and the object of the action/defense and a may still be received in evidence against the
description of the property affected pleader.
4) Action in rem.
• The notice serves as a warning to all persons,
prospective purchasers or encumbrancers of
the property in litigation to keep their hands off 1) FORMAL AMENDMENTS – A defect in the
the property in litigation unless they are designation of the parties and other clearly
prepared to gamble on the result of the clerical errors may be summarily corrected by
proceedings. the court or by motion:
• The defendant may also record a notice of lis • At any stage of the action.
pendens when he claims an affirmative relief in • Provided that no prejudice is caused to the
his answer. adverse party.
• The notice of cannot be cancelled on an ex 2) SUBSTANTIAL AMENDMENTS
parte motion or upon the mere filing of a bond a) If as a matter of right – Made at any time
by the party on whose title the notice is before a responsive pleading is served. If it
annotated, as Sec. 14 provides that such is a reply, at any time within l0 days after it
cancellation may be authorized only upon order is served. [Rule 10, Sec. 2]
of court, after proper showing that: [Roxas v. b) If as a matter of discretion – Amendment
CA (1993)] requires leave of court if:
1) The notice is for the purpose of molesting (1) It is substantial; and
the adverse party; or (2) A responsive pleading has already been
2) It is not necessary to protect the rights of served. [Rule 10, Sec. 3]
the party who caused it to be recorded.
1) Motion filed in court;
B. AMENDMENT AND 2) Notice to the adverse party;
3) Opportunity to be heard afforded to the
SUPPLEMENTAL adverse party.
1) If the cause of action, defense or theory of the
case is changed.

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2) If amendment is intended to confer jurisdiction (i.e. Exists side by side

to the court. with the original pleading)
• If the court has no jurisdiction in the When an amended A supplemental pleading
subject matter of the case, the amendment pleading is filed, a new does not require the filing
copy of the entire of a new copy of the entire
of the complaint cannot be allowed so as to
pleading must be filed pleading
confer jurisdiction on the court over the
property. [PNB v. Florendo (1992)]
3) If amendment is for curing a premature or non-
existing cause of action. C. BILL OF PARTICULARS
4) If amendment is for purposes of delay.

• Admitting an amended complaint in • Definition: It is a detailed explanation

intervention is a matter addressed to the respecting any matter which is not averred with
court’s discretion, subject only to the sufficient definiteness/particularity in the
limitations that amendments should not complaint as to enable a party to properly
substantially change the cause of action or prepare his responsive pleading or to prepare
alter the theory of the case or made to delay for trial. [Rule 12, Sec. 1]
the action. Once exercised, it cannot be • It is filed by the plaintiff pursuant to a court
disturbed on appeal, except in case of abuse order issued upon granting a motion for BOP
thereof. [Metropolitan Bank v. Presiding Judge filed by the defendant before the latter files an
(1990)] answer. In said motion, the defendant prays for
a more definite statement of matters which are
AMENDMENT TO CONFORM TO EVIDENCE not averred with sufficient definiteness in the
[Rule 10, Sec. 5] complaint.
• An action cannot be dismissed on the ground
• If issues not raised by the pleadings are tried that the complaint is vague/indefinite. The
with the express/implied consent of the parties, remedy of the defendant is to move for a BOP
they shall be treated as if they had been raised or avail of the proper mode of discovery.
in the pleadings. Amendment of pleadings as [Galeon v. Galeon]
may be necessary to cause them to conform to • Purpose: To inform the adverse party more
the evidence and to raise these issues, may be specifically of the precise nature and character
made upon motion of any party, any time of the cause of action or defense alleged in the
(even after judgment). pleading, with the view of enabling him to
• But failure to amend does not affect the prepare properly his responsive pleading or to
result of the trial on these issues. prepare for trial.
• If evidence is objected to at the trial on the • The purpose of a BOP is to define/
ground that it is not within the issues made by clarify/particularize/limit/circumscribe the
the pleadings, the court may allow the issues in the case to expedite the trial and
pleadings to be amended and shall do so with assist the court. The only question to be
liberality if the presentation of the merits of the resolved in a motion for a BOP is WON the
action and the ends of substantial justice will allegations in the complaint averred with
be subserved thereby. sufficient definiteness/particularity to
enable the movant to properly prepare his
responsive pleading and to prepare for
trial. [Tantuico, Jr. v. Republic (1991)]
• A BOP becomes part of the pleading for which it
• Definition: One which sets forth transactions,
was intended. [Rule 12, Sec. 6]
occurrences or events which have happened
since the date of the pleading sought to be
WHEN APPLIED FOR [Rule 12, Sec. 1]
supplemented. [Rule 10, Sec. 6]
• Before responding to a pleading
• It is made upon motion of a party with • If the pleading is a reply, within 10 days from
reasonable notice and upon terms as are just. service thereof
• The cause of action stated in the supplemental
complaint must be the same as that stated in
the original complaint. Otherwise, the court
[Rule 12, Sec. 1]
should not admit the supplemental complaint.
1) The defects complained of;
[Asset Privatization Trust v. CA]
2) The paragraph wherein they are contained;
3) The details desired.
COURT ACTION [Rule 12, Sec. 2]
• A supplemental complaint/pleading supplies
1) Deny;
deficiencies in aid of an original pleading, not to
2) Grant the motion outright;
entirely substitute the latter. Unlike in an
3) Allow the parties the opportunity to be heard.
amended complaint, the original complaint
exists side by side with the supplemental COMPLIANCE WITH ORDER [Rule 12, Sec. 3]
complaint. [Shoemart v. CA (1990)] • If motion for BOP is granted wholly/partially:
• Within 10 days from notice of order, BOP or
Amendments Supplemental pleadings
a more definite statement should be
Reason for the Grounds for the
amendment is available supplemental pleading submitted (unless court fixes a different
at time of the 1st arose after the 1st period).
pleading pleading was filed • BP or definite statement filed either as a
Either as a matter of right Always a matter of separate pleading or as an amended
or a matter of discretion discretion pleading, a copy of which must be served
Supersedes the pleading Supplements the pleading on the adverse party.

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• It is the act/proceeding by which a 3rd person

EFFECT OF NON-COMPLIANCE [Rule 12, Sec. 4] becomes a party in a suit pending between
1) In case of non-compliance or insufficient with others.
the order for BOP, the court: • It is the admission, by leave of court, of a
a) May order the striking out of the pleading person not an original party to pending legal
(or portion thereof) to which the order is proceedings, by which such person becomes a
directed; party thereto for the protection of some right of
b) Make such order as it may deem just. interest alleged by him to be affected by such
2) If the plaintiff fails to obey, his complaint may proceedings.
be dismissed with prejudice unless otherwise • An intervenor is a party to the action as the
ordered by the court. [Rule 12, Sec. 4; Rule original parties are, and to make his right
17, Sec. 3] effectual he must necessarily have the same
3) If defendant fails to obey, his answer will be powers as the original parties. He is entitled to
stricken off and his counterclaim dismissed, have the issues raised between him and the
and he will be declared in default upon motion original parties tried and determined.
of the plaintiff. [Rule 9, Sec. 3; Rule 12, Sec. • Intervention is never an independent
4; Rule 17, Sec. 4] action, but is ancillary and supplemental to
the existing litigation. Its purpose is to
STAY OF PERIOD TO FILE RESPONSIVE PLEADING afford one not an original party, yet having
[Rule 12, Sec. 5] a certain right/interest in the pending case,
• A Motion for BOP interrupts the period to file an the opportunity to appear and be joined so
answer. he could assert or protect such
1) If the motion is granted: 15 days to file right/interest. [Cariño vs. Ofilada (1993)]
answer. • Intervention is never an independent action,
2) If the motion is denied: File answer within but is ancillary and supplemental to the
the period the movant is entitled to, which existing litigation. Its purpose is to afford one
should not be less than 5 days. not an original party, yet having a certain
right/interest in the pending case, the
Bill of Particulars Intervention opportunity to appear and be joined so he
(BOP) could assert or protect such right/interest.
Purpose is to enable a Purpose is to enable a [Cariño vs. Ofilada (1993)]
party bound to respond to person not yet a party to • Hence, the final dismissal of the principal
a pleading to get more an action, yet having a
action results into the dismissal of said
details about matters certain right or interest in
which are alleged such action, the ancillary action.
generally or which are opportunity to appear and
indefinite and vague, so be joined so he could WHO MAY INTERVENE [Rule 19, Sec. 1]
as to properly guide such assert or protect such 1) One who has a legal interest in the matter in
party in answering the right or interest litigation;
pleading and to avoid 2) One who has a legal interest in the success of
surprise in the trial of the
either of the parties;
Available to the defendant Available to any person
3) One who has an interest against both parties;
before he files his not yet a party to the 4) One who is so situated as to be adversely
responsive pleading action at any time after affected by a distribution/disposition of
the commencement of an property in the court’s custody.
action, even during the
proceeding, but not after HOW INTERVENTION IS DONE
the trial has been • By a motion to intervene, with the pleading-in-
intervention attached. Must also serve copy of
the pleading-in-intervention on the original
parties. [Rule 19, Sec. 2]
D. INTERVENTION • General rule: Allowance of intervention is
discretionary with the court.
• Exception: When the intervenor is an
• Definition: A legal remedy whereby a person indispensable party.
is permitted to become a party in a case, by • Factors considered in allowing intervention:
either: 1) WON intervention will unduly delay or
1) Joining the plaintiff; prejudice the adjudication of the rights of
2) Joining the defendant; the original parties.
3) Asserting his right against both plaintiff and 2) WON the intervenor's rights may be fully
defendant, considering that either: protected in a separate proceeding.
a) He has a legal interest in the subject • The interest must be actual and
matter of the action; material, direct and immediate; not
b) He is going to be adversely affected by simply contingent or expectant. It must
the disposition of the property in the be in the matter in litigation and of
custody of the court such direct and immediate character
• Intervention is a proceeding in a suit/action by that the intervenor will either gain or
which a 3rd person is permitted by the court to lose by the direct legal operation and
make himself a party, either joining plaintiff in effect of the judgment. [Cariño vs.
claiming what is sought by the complaint, or Ofilada (1993)]
uniting with defendant in resisting the claims of • Interest in the subject means a direct
plaintiff, or demanding something adversely to interest in the cause of action as
both of them. [Metropolitan Bank v. Presiding pleaded and which would put the
Judge (1990)] intervenor in a legal position to litigate
a fact alleged in the complaint, without

100% UP LAW UP BAROPS 2008 Page 149 of 227


the establishment of which plaintiff 2) Direction that the defendant answer within
could not recover. [Magsaysay- the time fixed;
Labrador v. CA] 3) Notice that unless the defendant so
• Intervention is allowed any time before TC answers, plaintiff will take judgment by
renders judgment. [Rule 19, Sec. 2] default and may be granted the relief
• After rendition of judgment, a motion to applied for.
intervene is barred, even if the judgment itself • A copy of the complaint and order for
recognizes the movant’s right. The movant’s appointment of guardian ad litem (if any) shall
remedy is to file a separate action. be attached to the original and each copy of
the summons.
intervenor asserts a claim against either or all
of the original parties. WHO SERVES THE SUMMONS [Rule 14, Sec. 3]
2) ANSWER-IN-INTERVENTION – If intervenor 1) The sheriff or his deputy;
unites with the defending party in resisting a 2) Other proper court officers;
claim against the latter. 3) For justifiable reasons, any suitable person
authorized by the court issuing the summons.
19, Sec. 4] RETURN OF SUMMONS [Rule 14, Sec. 4]
• It must be filed within 15 days from notice of • When the service has been completed, the
the order admitting the complaint-in- server shall, within 5 days therefrom, serve a
intervention, unless a different period is fixed copy of the return (personally or by registered
by the court. mail) to the plaintiff's counsel, and shall return
the summons to the clerk who issued it,
REMEDIES accompanied by proof of service.
1) For denial of intervention:
a) Appeal. ALIAS SUMMONS [Rule 14, Sec. 5]
b) Mandamus, if there is GAD. • Upon plaintiff’s demand, the clerk may issue an
2) For improper granting of intervention: Certiorari. alias summons if either:
1) If summons is returned without being
served on any/all of the defendants.
Intervention Interpleader • The server shall also serve a copy of
An ancillary action An original action the return on the plaintiff's counsel
Proper in any of the Presupposes that the within 5 days therefrom, stating the
four situations mentioned plaintiff has no interest in reasons for the failure of service.
in Rule 19 the subject matter of the 2) If summons was lost.
action or has an interest
therein, which in whole or
in part is not disputed by MODES OF SERVICE OF SUMMONS
the other parties to the • Any application to the court under Rule 14 for
action leave to effect service in any manner for which
There is already a Defendants are being leave of court is necessary shall be made by
defendant among the sued precisely to implead motion in writing, supported by affidavit of the
original parties to the them plaintiff or some person on his behalf, setting
pending suit forth the grounds for the application. [Rule 14,
Sec. 17]


DEFENDANT [Rule 14, Sec. 6]
• Definition: A coercive force issued by the 1) By handing a copy of summons to him;
court to acquire jurisdiction over the person of 2) By tendering it to him, if he refuses to receive
the defendant. it.
• Purpose:
1) To acquire jurisdiction over the person of
the defendant in a civil case;
2) To give notice to the defendant that an Sec. 7]
action has been commenced against him.
• Rationale: Enjoyment of the privileges of
residence within the state, and the attendant
ISSUANCE OF SUMMONS right to invoke the protection of its laws, are
inseparable from the various incidences of state
• Upon the filing of the complaint and the citizenship. One such incident of domicile is
payment of legal fees, the clerk of court shall amenability to suit within the state even during
issue the corresponding summons to the sojourns without the state, where the state has
defendants. [Rule 14, Sec. 1] provided and employed a reasonable method
for apprising such an absent party of the
SUMMON’S CONTENTS [Rule 14, Sec. 2] proceedings against him. [Northwest v. CA
• Summons must be directed to the defendant, (1995)]
signed by the clerk of the court under seal, and • For a valid substituted service of summons, the
contain: following must be established in the proof of
1) Name of the court and names of the service: [Sps. Ventura v. CA (1987)]
parties; 1) Impossibility of the personal service of
summons within a reasonable time;

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2) Efforts made to find the defendant entity was already

personally and the fact that such efforts severed before the
failed; [Laus v. CA (1993)] service
3) Service by leaving copy of summons either: Service upon minors Serve upon the
and incompetents minor/incompetent and on
a) With some person of suitable age and
[Rule 14, Sec. 10] his legal guardian.
discretion then residing in the
defendant’s residence; • If there is no guardian,
b) With some competent person in charge plaintiff may apply for
of the defendant’s office or regular the appointment of a
place of business. guardian ad litem.
• For a substituted service to be valid, summons • If minor, may serve on
served at the defendant's residence must be his parents.
Service upon prisoner Serve upon the officer
served at his residence at the time of such
[Rule 14, Sec. 9] having management of the
service and not at his former place of jail/prison
residence. "Dwelling house" or "residence" Service upon domestic Serve upon either the:
refer to the place where the person named in private juridical entity 1)President
the summons is living at the time when the [Rule 14, Sec. 11] 2)Managing partner
service is made, even though he may be 3)General manager
temporarily out of the country at the time. 4)Corporate secretary
[Sps. Ventura v. CA (1987)] 5)Treasurer
• Substituted service must be used only as 6)In-house counsel
prescribed and in the circumstances authorized Service upon foreign Serve upon the resident
by statute. Statutes prescribing modes other private juridical entity agent;
than personal service of summons must be [Rule 14, Sec. 12]
strictly complied with to give the court Otherwise, upon either:
• Government official
jurisdiction, and such compliance must appear
designated by law;
affirmatively in the return. [Laus v. CA (1993)] • Any officer or agent of
• Absence in the sheriff's return of a statement the corporation within
about the impossibility of personal service does the Philippines
not conclusively prove that the service is Service upon public If the defendant is the
invalid. Proof of prior attempts at personal corporations Republic of the Philippines
service may be submitted by the plaintiff [Rule 14, Sec. 13] – Serve upon the OSG
during the hearing of any incident assailing the
If the defendant is a
validity of the substituted service. While the
sheriff's return carries with it the disputable or like public corporations
presumption of regularity in the sense that the – Serve upon the executive
entries therein are deemed correct, it does not head or other officers as
necessarily follow that an act done in relation the law/court may direct
to the official duty for which the return is made Extraterritorial service • Requisites:
was not done simply because it is not disclosed [Rule 14, Sec. 15] 1) Defendant does not
therein. [Mapa v. CA (1992)] reside or is not found
in the Philippines;
2) Action either:
3. PUBLICATION [Rule 14, Sec. 14] a) Affects the plaintiff’s
personal status;
• Requisites: b) Relates to or the
1) The action is in rem or quasi in rem; subject matter of
2) Defendant's identity or whereabouts are which is property
unknown and cannot be ascertained by within the Philippines
in which defendant
diligent inquiry;
has a lien/interest;
3) There must be leave of court. c) Demands a relief
• Summons by publication in a personal action which consists
cannot confer upon the court jurisdiction over wholly/partially in
the person of the defendant, who does not excluding the
voluntarily submit himself to the authority of defendant from any
the court. The proper recourse for the plaintiff interest in any
is to locate properties of the defendant whose property within the
address is unknown and cause them to be
d) Has defendant’s
attached. [Consolidated Plywood vs. Breve property in the
(1988)] Philippines,
• Modes of service:
ENTITIES a) With leave of court,
serve outside the
Service on person If sued under the name by Philippines by personal
associated in an entity which they are commonly service; or
without juridical known – Serve upon b) With leave of court,
personality either: serve by publication in
[Rule 14, Sec. 8] 1) Any/all the defendants; a newspaper of general
2) Person in charge of the circulation, in which
office case copy of the
summons and order of
• The service does not the court must also be
bind individually any sent by registered mail
person whose to the defendant’s last
connection with the

100% UP LAW UP BAROPS 2008 Page 151 of 227


known address; Specify any papers which have been served

c) Any other manner the with the process and the name of the
court deems sufficient person who received the same;
• Be sworn to when made by a person other
• The court order granting
extraterritorial service
than a sheriff or his deputy.
shall specify a period of 2) If by publication: [Rule 14, Sec. 19]
at least 60 days within a) Affidavit of the printer, foreman, principal
which the defendant clerk, editor, business/advertising
must answer. manager, with a copy of the publication
Service upon a resident With leave of court, may attached.
temporarily out of the serve extraterritorially b) Affidavit showing the deposit of a copy of
Philippines the summons and order for publication in
[Rule 14, Sec. 16]
the post office, postage prepaid, directed to
Service upon a defendant With leave of court, by
whose identity or publication in a newspaper
the defendant by registered mail to his last
whereabouts are of general circulation known address.
unknown [Rule 14, Sec.

• Summons is validly served if it is left with some • Unless the defendant voluntarily submits to the
person of suitable age and discretion then jurisdiction of the court, non-service or
residing in the defendant's residence, even if irregular service of summons renders null and
defendant was abroad at that time. The fact void all subsequent proceedings and issuances
that the defendant did not actually receive the in the action from the order of default up to
summons did not invalidate the service of such and including the judgment by default and the
summons. [Montalban v. Maximo] order of execution.
• If the defendant has already been served with
WAIVER OF SERVICE OF SUMMONS [Rule summons on the original complaint, no further
14, Sec. 20] summons is required on the amended
complaint if it does not introduce new causes of
action. [Ong Peng v. Custodio]
• Defendant's voluntary appearance in the action
• But if the defendant was declared in default on
shall be equivalent to service of summons;
the original complaint and the plaintiff
• Exception: Special appearance to file a
subsequently filed an amended complaint, new
summons must be served on the defendant on
• Inclusion in the MTD of grounds other
the amended complaint, as the original
than LOJ over the defendant’s person,
complaint was deemed withdrawn upon such
is not deemed a voluntary appearance.
amendment. [Atkins v. Domingo]
• 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 F. MOTIONS
counsel for petitioner is precisely to
protest the jurisdiction of the court
over the person of the defendant. • Definition: An application for relief other than
[Delos Santos v. Montesa (1993)] by a pleading. [Rule 15, Sec. 1]

RETURN OF SERVICE [Rule 14, Sec. 4] Motion Pleading

Contains allegations of Contains allegations of
facts the ultimate facts
• When service has been completed, the server Prays for a relief Prays for a relief
shall serve a copy of the return within 5 days Grant of the relief does Grant of relief
(personally or by registered mail) to the not extinguish the action extinguishes the action
plaintiff's counsel, and shall return the (interlocutory relief) (final relief)
summons to the clerk who issued it, Generally in writing (with Always in writing
accompanied with the proof of service. some exceptions)
• General rule: Return of service of summons
immediately shifts burden of evidence from • General rule: A motion cannot pray for
plaintiff to defendant since there is a judgment.
presumption of regularity. • Exception:
• Without return of service: Burden is on 1) Motion for judgment on the pleadings.
plaintiff. 2) Motion for summary judgment.
• In the Mapa case, though, while there was 3) Motion for judgment on demurrer to
a return, return was patently irregular, thus evidence.
no presumption of regularity could be had.
• Exception: Doctrine of substantial KINDS OF MOTION
compliance – If defendant actually received 1) MOTION EX PARTE - Made without
summons and complaint despite all these notification to the other party because the
technicalities. question generally presented is not debatable.
2) LITIGATED MOTION - Made with notice to
the adverse party so that an opposition thereto
may be made.
3) MOTION OF COURSE - Motion for a kind of
1) If personal or substituted service: In writing by
relief/remedy to which the movant is entitled to
the server and shall: [Rule 14, Sec. 18]
as a matter of right, Allegations contained in
• Set forth the manner/place/date of service;

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such motion do not have to be c) If the party is in default because such a

investigated/verified. party is not entitled to notice.
4) SPECIAL MOTION - Discretion of the court is MOTION DAY [Rule 15, Sec. 7]
involved. An investigation of the facts alleged is • Except for urgent motions, motions are
required. scheduled for hearing:
1) On Friday afternoons;
MOTION’S FORM [Rule 15, Sec. 2] 2) Afternoon of the next working day, if Friday
• General rule: In writing. is a non-working day.
• Exception: Oral motions:
1) Made in open court; OMNIBUS MOTION RULE [Rule 15, Sec. 8]
2) In the course of a hearing/trial. • Definition: A motion attacking a
pleading/order/judgment/proceeding must
CONTENTS [Rule 15, Sec. 3] include all objections then available. All
1) Relief sought to be obtained objections not included in the motion are
2) Grounds upon which it is based deemed waived.
3) If it is required/necessary to prove facts alleged • Exception: When the court’s jurisdiction is
in a motion, it shall be accompanied by in issue:
supporting affidavits and other papers. 1) LOJ over subject-matter;
• Motions raising factual issues must be 2) Litis pendentia;
supported by affidavits. 3) Res judicata;
4) Prescription.
1) In writing; [Rule 15, Sec. 2] [Rule 15, Sec. 9]
2) Hearing on the motion set by the applicant; • Must be accompanied by the pleading/motion
• PRO FORMA MOTION – A motion failing sought to be admitted.
to indicate time and date of the hearing.
3) Notice of hearing shall addressed to all parties MOTIONS NOT ACTED UPON
not later than 10 days from the filing of the • Parties and counsel should not assume that
motion. [Rule 15, Sec. 5] courts are bound to grant the time they pray
• Notice must be addressed to the counsels. for. After all, a motion that is not acted upon in
A notice of hearing addressed to the clerk due time is deemed denied. [Orosa v. CA
of court, and not to the parties, is no notice (1996)]
at all. Accordingly, a motion that does not
contain a notice of hearing to the adverse
party is nothing but a mere scrap of paper,
as if it were not filed; hence, it did not
suspend the running of the period to
appeal. [Provident International Resources
v. CA (1996)]
4) Motion and notice of hearing must be served at
least 3 days before the date of hearing; [Rule
15, Sec. 4]
• Purpose: To prevent surprise upon the
adverse party and to enable the latter to
study and meet the arguments of the
• Exception:
a) Ex parte motions;
b) Urgent motions;
c) Motions agreed upon by the parties to
be heard on shorter notice, or jointly
submitted by the parties;
d) Motions for summary judgment which
must be served at least 10 days before
its hearing.
5) Proof of service. [Rule 15, Sec. 6]
• A written motion set for hearing will not be
acted upon by the court if there is no proof
of service thereof.
• What may be proof:
a) If by registered mail: Affidavit or
registry receipt or postmark on
envelope or return card, with an
b) If by personal service: Affidavit or
acknowledgment of receipt by the other
• 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.

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parties shall be allowed to present evidence,

except when the motion is based upon failure
IV. TERMINATING THE ACTION of the complaint to state a cause of action.
When the MTD is based on facts not appearing
BEFORE TRIAL of record, the court may hear the matter on


1) LOJ over the defendant’s person;

2) LOJ over the subject matter of the claim;
3) Improper venue;
4) Plaintiff’s lack of legal capacity to sue;
• MOTION TO DISMISS – A remedy of the 5) Litis pendentia;
defendant, or the responding party in general, 6) Res judicata;
which attacks the entire pleading and seeks its 7) Prescription;
dismissal based on: 8) Failure to state a cause of action;
1) Grounds which are patent on the face of 9) Extinguished claim;
the complaint; 10) Unenforceable claim under the Statute of
2) Defenses available to the defendant at the Frauds;
time of the filing of the complaint. 11) Non-compliance with a condition precedent for
• It hypothetically admits the facts stated in the filing claim.
• 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 PERSON
pleading. Hence, it must raise all objections
available at the time of the filing thereof. • The objection of LOJ over the person on
• General rule: A court may not motu propio account of lack of service or defective service
dismiss a case, unless a motion to that effect is of summons, must be raised:
filed by a party. • At the very first opportunity;
• Exception: • Before any voluntary appearance is made.
1) Cases where the court may dismiss a • If a defendant had not been properly
case motu propio; [Rule 9, Sec. 1] summoned, the period to file a MTD for
2) Failure to prosecute; [Rule 17, Sec. 3] LOJ over his person does not
3) Sec. 4, Revised Rule on Summary commence to run until he voluntarily
Procedure. submits to the jurisdiction of the court.
[Laus v. CA (1993)]
TYPES OF DISMISSAL OF ACTION: • Appearance of counsel is equivalent to
summons, unless such is made to
1) MTD before answer under Rule 16; protest the jurisdiction of the court
2) MTD under Rule 17: over the person of the defendant. If
a) Upon notice by plaintiff; grounds other than invalid service of
b) Upon motion by plaintiff; summons are raised, it cannot be
c) Due to fault of plaintiff. considered as a special appearance.
3) Demurrer to evidence after plaintiff has [De los Santos v. Montesa (1993)]
completed the presentation of his evidence
4) Dismissal of an appeal.
MTD under Rule 16 MTD under Rule 33
(Demurrer to • If the complaint shows on its face LOJ, the
evidence) court may dismiss the case outright instead of
Based on preliminary Based on insufficiency of hearing the motion.
objections evidence • A MTD on the ground of LOJover the subject
May be filed by any May be filed only by the matter may be raised either:
defending party against defendant against the 1) Before answer;
whom a claim is asserted complaint of the plaintiff
2) After answer is filed;
in the action
3) After hearing had commenced;
Should be filed within the May be filed only after
time for, but prior to, the the plaintiff has 4) At any stage of the proceeding, even for
filing of the defending completed the the first time on appeal and even if no such
party’s answer to the presentation of his defense is raised in the answer.
pleading asserting the evidence
claim against him 3. IMPROPER VENUE
If denied, defendant If denied, defendant may
answers; else, he may be present evidence.
declared in default. If granted, plaintiff • Unless and until the defendant objects to the
If granted, plaintiff may appeals and the order of venue in a MTD prior to a responsive pleading,
appeal or if a subsequent the dismissal is reversed; the venue cannot truly be said to have been
case is not barred, he the defendant loses his improperly laid since, for all practical intents
may re-file the case right to present evidence. and purposes, the venue though technically
wrong may yet be considered acceptable to the
• A MTD shall be proved/disproved according to parties for whose convenience the rules on
the rules of evidence. The hearing shall be venue had been devised. Improper venue may
conducted as an ordinary hearing and the

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be waived and such waiver may occur by 1) Former judgment rendered by a court
laches. [Diaz v. Adiong (1993)] having jurisdiction over the subject matter
• A stipulation between the parties as to venue and over the parties;
does not preclude the filing of suits in the 2) Judgment must be a final judgment;
residence of plaintiff/defendant under Rule 4, 3) Judgment must be on the merits;
Sec. 2(b). In the absence of • There can be res judicata without a
qualifying/restrictive words which would trial, such as in a judgment on the
indicate that a specific place alone is the venue, pleadings (Rule 34); a summary
an agreement as to venue is merely permissive judgment (Rule 35); or an order of
and there is no waiver of right to pursue dismissal under Rule 17, Sec. 3.
remedy in other courts. [HSBC v. Sherman 4) There must be identity of parties, of subject
(1989)] matter and of the causes of action.
• If the court erroneously denies the MTD, the • For res judicata to apply, absolute
remedy is prohibition. identity of parties is not required because
substantial identity is sufficient. Inclusion
4. PLAINTIFF’S LACK OF LEGAL of additional parties will not affect the
application of the principle of res
The test of identity of cause of
• The plaintiff lacks legal capacity to sue:
action lies not in the form of the action
1) When he does not possess the necessary
but on WON the same evidence would
qualification to appear at the trial (e.g.
support and establish the former and
when he plaintiff is not in the full exercise
the present causes of action. [DBP v.
of his civil rights);
Pundogar (1993)]
2) When he does not have the character which
• Rationale: The sum and substance of the
he claims, which is a matter of evidence
whole doctrine is that a matter once judicially
(e.g. when he is not really a duly appointed
decided is finally decided because of: [Nabus v.
administrator of an estate).
CA (1991)]
• Lack of legal capacity to sue refers to plaintiff’s
1) Public policy and necessity makes it the
disability; while lack of legal personality to sue
interest of the State that there should be
refers to the fact that the plaintiff is not a real
an end to litigation;
party in interest, in which case the ground for
2) The hardship on the individual that he
dismissal would be that the complaint states no
should be vexed twice for the same cause.
cause of action.
1) BAR BY PRIOR JUDGMENT – Judgment on
• Requisites: [Anderson Group v. CA (1997)] the merits in the 1st case constitutes an
1) Identity of parties; absolute bar to the subsequent action not only
2) identity of rights asserted and relief prayed as to every matter which was offered and
for; received to sustain or defeat the
3) Relief founded on the same facts and the claim/demand, but also to any other admissible
same basis; matter which might have been offered for that
4) Identity in the 2 proceedings should be purpose and to all matters that could have
such that any judgment which may be been adjudged in that case.
rendered in the other action will amount to 2) CONCLUSIVENESS OF JUDGMENT – Where
res judicata on the action under the 2nd action between the parties is upon a
consideration. different claim/demand, the judgment in the
• It is not required to allege that there be a prior 1st case operates as an estoppel only with
pending case. It is sufficient to allege and regard to those issues directly controverted,
prove the pendency of another case, even if upon the determination of which the judgment
same had been brought later. was rendered.
• It does not require that the later case be
dismissed in favor of the earlier case. To 7. STATUTE OF LIMITATIONS
determine which case should be abated, apply:
1) The More Appropriate Action Test;
• Prescription applies only when the complaint on
2) The Interest of Justice Test, taking into
its face shows that indeed the action has
already prescribed.
a) Nature of the controversy;
• If the fact of prescription is not indicated on the
b) Comparative accessibility of the court
face of the complaint and the same may be
to the parties;
brought out later, the court must defer decision
c) Other similar factors.
on the motion until such time as proof may be
In both tests, the parties’ good faith shall be
presented on such fact of prescription.
taken into consideration. The 1st case shall be
abated if it is merely an anticipatory action or
Prescription Laches
defense against an expected suit. The 2nd case Concerned with the fact Concerned with the effect
will not be abated if it is not brought to harass. of delay of delay
[Vitrionics Computers v. RTC (1993)] A matter of time A matter of equity
Statutory Not statutory
6. RES JUDICATA Applies in law Applies in equity
Based on fixed time Not based on fixed time
• Requisites:

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3) Order the amendment of pleadings.
• The court’s resolution on the MTD must clearly
and distinctly state the reasons therefor.
• Failure to state a cause of action (not lack of
• The court cannot defer the resolution of the
cause of action) is the ground for a MTD. The
MTD for the reason that the ground relied upon
former means there is insufficiency in the
is not indubitable.
allegations in the pleading. The latter means
that there is insufficiency in the factual basis of
the action.
• The failure to state a cause of action must be
evident on the face of the complaint itself. 1) Of dismissal: [Rule 16, Sec.5]
• Test: Assuming the allegations and statements • General rule: The action/claim may be re-
to be true, does the plaintiff have a valid cause filed.
of action? • Exception: The action cannot be re-
• A MTD based upon the ground of failure to filed (although subject to appeal) if it
state a cause of action imports a hypothetical was dismissed on any of the following
admission by the defendant of the facts alleged grounds:
in the complaint. If the court finds the a) Res judicata;
allegations of the complaint to be sufficient but b) Prescription;
doubts their veracity, it must deny the MTD c) Extinguishment of the
and require the defendant to answer and then claim/demand;
proceed to try the case on its merits. d) Unenforceability under the Statute
• A complaint containing a premature cause of of Frauds.
action may be dismissed for failure to state a 2) On periods for pleading: [Rule 16, Sec.4]
cause of action. a) If MTD is denied – Movant must file his
• If the suit is not brought against the real party- answer within the balance of the period
in-interest, a motion to dismiss may be filed on under Rule 11 to which he was entitled at
the ground that the complaint states no cause the time of serving his MTD (but not less
of action. [Tanpinco v. IAC (1992)] than 5 days).
b) 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
• That the claim/demand set forth in the
gives a longer period).
plaintiff's pleading has been paid, waived,
3) On other grounds and omnibus motion rule:
abandoned or otherwise extinguished.
• MTD based on the following grounds may
be filed even after filing an answer: [Rule
THE STATUTE OF FRAUDS 1) LOJ over subject-matter;
2) Litis pendentia;
11. NON-COMPLIANCE WITH A 3) Res judicata;
4) Prescription.
• Dismissal of the complaint under Rule 16, Sec.
• Non-compliance with PD 1508 (Katarungang 6 is without prejudice to the prosecution (in the
Pambarangay Law) may result in dismissal of same or in a separate action) of a counterclaim
the case on the ground of non-compliance with pleaded in the answer.
a condition precedent.


• If no MTD was filed, the grounds in Rule 16,
Sec. 1 may be pleaded as an affirmative
defense and the court may conduct a 1. DISMISSAL UPON
preliminary hearing thereon as if a MTD was PLAINTIFF’S NOTICE [Rule 17,
filed. Sec. 1]

Hearing and order • Dismissal here is effected not by motion but by

mere notice before the service of either:
1) The answer;
• DURING THE HEARING OF THE MOTION, 2) A motion for summary judgment.
PARTIES SHALL SUBMIT: [RULE 16, SEC. 2] • Upon plaintiff’s filing of notice, the court shall
1) Their arguments on questions of law; issue an order dismissing the case. (i.e. the
2) Their evidence on questions of fact. court has no discretion on WON to dismiss the
• Exception: Those not available at that case).
time. • The dismissal is without prejudice.
• If the case goes to trial, such evidence • Exception:
presented shall automatically be part of 1) If the notice of dismissal provides that
the evidence of the party who it is with prejudice.
presented them. • The dismissal is still with prejudice
• After the hearing, the court may either: [Rule even it the notice of dismissal does
16, Sec. 3] not so provide, where such notice is
1) Dismiss the action/claim; premised on the fact of payment by

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the defendant of the claim otherwise stated in the

involved. [Serrano v. Cabrera] court order or on
2) TWO-DISMISSAL RULE – If the plaintiff’s motion for
dismissal of his own
plaintiff has previously dismissed an
action based on or including the same
Dismissal is without Dismissal is without
claim, the notice operates as an prejudice to the prejudice to the
adjudication on the merits. defendant’s right to defendant’s right to
prosecute his prosecute his
2. DISMISSAL UPON counterclaim in a counterclaim in the same
separate action (unless or in a separate action
PLAINTIFF’S MOTION [Rule 17, within 15 days from
Sec. 2] notice of the motion he
manifests his intention to
• Here, dismissal of the complaint is subject to have his counterclaim
the court’s discretion and upon such terms and resolved in the same
conditions as may be just. action)
• Leave of court for the dismissal is necessary
because the motion is made after a responsive
pleading or a motion for summary judgment DISMISSAL OF COUNTERCLAIMS/CROSS-
has been served. CLAIMS/3RD-PARTY COMPLAINTS [Rule 17,
• If defendant pleaded a counterclaim prior to Sec. 4]
the service upon him of the plaintiff’s motion
for dismissal, the dismissal shall be without • Rule 17 applies to the dismissal of
prejudice to the defendant’s right to either: counterclaims, cross-claims or 3rd-party
1) Prosecute his counterclaim in a separate complaints.
action; • Where a counterclaim is made the subject of a
2) Have the counterclaim resolved in the same separate suit, it may be abated upon a plea of
action, by manifesting such preference auter action pendentia and/or dismissal on the
within 15 days from being notified of ground of res judicata. Res judicata, however,
plaintiff’s motion for dismissal. is not applicable since the court held that it did
• Dismissal here is without prejudice, unless not acquire jurisdiction due to non-payment of
otherwise provided in the order. docket fees. Dismissal on the ground of LOJ
• Court approval of the court is necessary in the does not constitute res judicata, there being no
dismissal/compromise of a class suit. consideration and adjudication of the case on
the merits. Neither is there litis pendentia.
[Meliton v. CA (1992)]
Sec. 3]
C. DEFAULTS [Rule 9, Sec. 3]
• If, without justifiable cause, plaintiff fails
1) To appear on the date of the presentation • Definition: Failure of the defendant to answer
of his evidence-in-chief on the complaint; within the proper period. It is not his failure to
• The plaintiff’s failure to appear at the appear nor his failure to present evidence.
trial after he has presented his
Order of default Judgment by default
evidence and rested his case does not
Issued by the court on Rendered by the court
warrant the dismissal of the case on plaintiff’s motion, for following a default order
the ground of failure to prosecute. It is failure of the defendant to or after it received ex
merely a waiver of his right to cross- file his responsive parte plaintiff’s
examine and to object to the pleading seasonably evidence
admissibility of evidence. [Jalover v. Interlocutory – Not Final – Appealable
Ytoriaga] appealable
2) To prosecute his action for an unreasonable
length of time (nolle prosequi); ELEMENTS OF A VALID DECLARATION OF DEFAULT
• The test for dismissal of a case due to 1) Court validly acquired jurisdiction over the
failure to prosecute is WON, under the defendant’s person, either by service of
circumstances, the plaintiff is summons or voluntary appearance;
chargeable with want of due diligence 2) Defendant fails to answer within the time
in failing to proceed with reasonable allowed therefor;
promptitude. [Calalang v. CA (1993)] 3) Motion to declare the defendant in default;
3) To comply with the ROC or any court order. 4) Notice to the defendant by serving upon him a
• Here, the case may be dismissed motu propio copy of such motion;
or upon the defendant’s motion. 5) Proof of such failure to answer.
• The dismissal has the effect of an adjudication
on the merits, unless the court declares CASES WHERE NO DEFAULTS ARE ALLOWED
otherwise. 1) Annulment of marriage; Declaration of nullity of
marriage; Legal Separation;
Rule 17, Sec. 2 Rule 17, Sec. 3 • Here, the court shall order the prosecuting
Dismissal is at the Dismissal is not procured attorney to investigate WON parties are
plaintiff’s instance by plaintiff, although colluding and, if there is no collusion, to
justified by causes intervene from the State to ensure that
imputable to him
evidence is not fabricated.
Dismissal is a matter of Dismissal is a matter of
procedure, without evidence, an adjudication
prejudice unless on the merits

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2) Special civil actions of certiorari, prohibition hearing, the award may exceed the amount or
and mandamus, where comment (instead of an be different in kind from that prayed for. [Datu
answer) is required to be filed. Samad Mangelen v. CA (1992)]


1) Party in default loses standing in court as a
party litigant. His failure to answer operates as
who fails to appear effect
a waiver of right to take part in the trial, of
being heard, and of presenting evidence in his Plaintiff Cause for dismissal of the
favor. action which will be with
• If the defendant was declared in default prejudice, unless
upon an original complaint, the filing of the otherwise ordered by the
amended complaint resulted in the
withdrawal of the original complaint. Defendant Cause to allow plaintiff to
Hence, the defendant was entitled to file present evidence ex
parte, and court to render
answer to the amended complaint as to
judgment on the basis
which he was not in default. thereof
2) The court shall proceed to render judgment
granting the claimant relief as his pleading may
Default As in default
warrant, unless the court in its discretion
(Rule 9, Sec. 3) (Rule 18, Sec. 5)
requires the claimant to submit evidence. Such Upon motion and notice to Not required
reception of evidence may be delegated to the defendant.
clerk of court. Requires proof of failure Not required
3) The party in default shall be entitled to notice to answer
of subsequent proceedings but not to take part Court to render judgment, Court to allow plaintiff to
in the trial. unless it requires present evidence ex
• A defendant declared in default cannot take submission of evidence parte, then the court
part in the trial, but he cannot be shall render judgment
Relief awarded must be Relief awarded may be of
disqualified from testifying as a witness in
the same in nature and different nature and
favor of non-defaulting defendants. [Cavili amount as prayed for in amount from the relief
v. Florendo] the complaint prayed for
• A party in default is entitled to notice of:
a) Motion to declare him in default; • A defendant who already filed an answer
b) Order declaring him in default; cannot be declared in default. Only when the
c) Subsequent proceedings; defendant fails to file an answer to the
d) Service of final orders and judgments. complaint may the court proceed to render
judgment. [Lesaca v. CA (1992)]
RELIEF FROM ORDER OF DEFAULT • The Revised Rules on Summary Procedure does
• Before judgment, a party declared in default not provide that an answer filed after the
may file a motion under oath to set aside the reglamentary period should be expunged from
order of default upon proper showing that: the records. As a matter of fact, there is no
1) His failure to answer was due to fraud, provision for an entry of default if a defendant
accident, mistake or excusable negligence; fails to file his answer. The defense of LOJ may
2) He has a meritorious defense. have even been raised by the defendant in a
• In such case, the order of default may be set MTD as an exception to the rule on prohibited
aside on terms and conditions as justice pleadings in the Revised Rule on Summary
requires. Procedure. Such a motion is allowed under Sec.
19(a) thereof. [Bayog v. Natino (1996)]
EFFECT OF PARTIAL DEFAULT • Where the failure to appear at the pre-trial
• If the pleading asserting a claim states a hearing was uncontrovertedly due to illness,
common cause of action against several the default order may be set aside on the
defending parties, and some of the defending ground of accident over which petitioner had no
parties answer while the others fail, the court control. Also, the order of arrest was illegal as
shall try the case against all defendants upon there is nothing in the ROC which authorizes
the answers filed and render judgment upon such a consequence of a default order.
the evidence presented. [Malanyaon v. Sunga (1992)]
• Exception: If the defense is personal to
the one who answered; in which case, it REMEDIES
will not benefit those who did not answer. • Pleadings, as well as remedial laws, should be
liberally construed in order that litigants may
EXTENT OF RELIEF TO BE AWARDED have ample opportunity to prove their
• The award shall not exceed the amount or be respective claims, and possible denial of
different in kind from that prayed for; nor substantial justice. [Gerales v. CA]
award unliquidated damages.
• Rationale: It is presumed that where the relief [Dulos v. CA (1990)]
demanded is greater or different in kind,
defendant would not have allowed himself to be
declared in default.
• In a judgment based on evidence presented ex
parte, judgment should not exceed the amount
or be different in kind from that prayed for. On
the other hand, in a judgment where an answer
was filed but defendant did not appear at the

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Motion to set aside At any time after the default, he has the right to appeal the default
order of default [Rule 9, discovery of default and judgment. But in the appeal, only the evidence
Sec. 3(b)] before judgment, of the petitioner may be considered,
defendant may file a respondent not having adduced any defense
motion under oath to set
evidence. [Boticano v. Chu (1987)]
aside order of default on
the ground that his failure
to file an answer or
appear on the date set for D. JUDGMENT ON THE
the pre-trial was due to
fraud, accident mistake of PLEADINGS [Rule 34]
law, and excusable
negligence and that he
has a meritorious defense
• Grounds: If the answer either:
MNT [Rule 37, Sec. If the judgment has 1) Fails to tender an issue;
1(a)] already been rendered 2) Admits the material allegations of the
when the defendant adverse party’s pleading.
discovered the default, • An answer fails to tender an issue due to
but before the same either:
became final and
1. General denial of the material allegations of
the complaint;
It should be filed within 2. Insufficient denial of the material
the period for perfecting allegations of the compliant.
an appeal. Timely filing • A judgment on the pleadings can be done only
thereof interrupts the 15- upon motion to the effect filed by the
day reglementary period appropriate party. It cannot be rendered by the
for an appeal. It is court motu propio.
required that defendant
• Exception: If at pre-trial the court finds
file first a motion to lift
order of default to regain that a judgment on the pleadings is proper,
his standing. [Tan v. CA it may render such judgment motu propio.
(1997)] [Rule 18, Sec. 2(g)]
Petition for relief from If the defendant • In the following cases, judgment on the
order [Rule 38, Sec. 1 discovered the default pleadings will not lie and material facts alleged
and 2] after the judgment has in the complaint must always be proved:
become final and 1) Declaration of nullity of marriage;
2) Annulment of marriage;
Appeal from the RTC The defendant may also 3) Legal separation.
[Rule 41, Sec. 1] appeal from the judgment • By moving for judgment on the pleadings, the
rendered against him as
plaintiff waives his claim for unliquidated
contrary to the evidence
or the law, even if he did
damages (because claims for such damages
not present a petition to must be alleged and proved).
set aside the order of • One who prays for the judgment on the
default pleadings without offering proof as to the truth
of his own allegations and without giving the
opposing party an opportunity to introduce
• An order of default is an interlocutory order
evidence, must be understood to admit all
which is not appealable. A judgment by default
material and relevant allegations of the
is a final disposition of the case and is
opposing party and to rest his motion for
appealable. [MERALCO v. La Campana Food
judgment upon those allegations taken
Products (1995)]
together with such of his own as are admitted
• A petition for certiorari under Rule 65, although
in the pleadings. [Falcasantos v. How Suy
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 E. SUMMARY JUDGMENTS
15 days from receipt of copy of order denying
MFR of default judgment. [Oriental Media v. CA
(1995)] • Definition: A judgment granted by the court
• A satisfactory showing by the movant of the for the prompt disposition of civil actions, if it
existence of fraud, accident, mistake or clearly appears that there exists no genuine
excusable neglect is an indispensable issue/controversy as to any material fact,
requirement for the setting aside of a judgment except as to the amount of damages.
of default or the order of default. A meritorious • Also called accelerated judgment.
defense is only one of the two conditions. The • GENUINE ISSUE – An issue of fact which calls
meritorious defense must concur with the for the presentation of evidence; as
satisfactory reason for the non-appearance of distinguished from an issue which is sham,
the defaulted party. If there is no such reason, fictitious, contrived and patently insubstantial
the appropriate remedy is an ordinary appeal so as not to constitute a genuine issue for trial.
under Rule 41, Sec. 2. [Ramnani v. CA (1993)] • When the facts as pleaded appear uncontested
• The jurisdiction was properly acquired by the or undisputed, then there is no real/genuine
TC over the defendant’s person; he was issue as to the facts.
therefore properly declared in default for not • The TC cannot motu propio issue a summary
having filed any answer. Despite his failure to judgment. A party must move for summary
file a motion to set aside the declaration of judgment.

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who may file motion when

for summary
Plaintiff May file the motion only
after the answer has been
Defendant May file the motion any

• 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 V. MODES OF DISCOVERY
following, no genuine issue as to any material
fact exists:
1) Affidavits made on personal knowledge; A. DEPOSITIONS UNDER
2) Depositions of the adverse or a 3rd party;
(Rule 23) RULE 23
3) Admissions of the adverse party; (Rule 26)
4) Answers to interrogatories. (Rule 25)
• Applies when for some reason there can be no • PRIMARY FUNCTION OF A DEPOSITION -
full summary judgment. Trial should deal only Deposition is chiefly a mode of discovery, the
with the facts not yet specified or established. primary function of which is to supplement the
The court shall direct further proceedings in the pleadings for the purpose of disclosing the real
action as are just. points of dispute between the parties and
• Effect of partial summary judgment: A partial affording an adequate factual basis during the
summary judgment is not a final judgment, but preparation for trial. The liberty of a party to
merely a pre-trial adjudication that said issues avail of such modes of discovery is unrestricted
in the case shall be deemed established for the if the matters inquired into are relevant and not
trial of the case. [Guevarra v. CA (1983)] privileged, and the inquiry is made in good
faith and within the bounds of the law.
Limitations would arise if the examination is
Summary Judgment on Judgment by conducted in bad faith; or in such a manner as
judgment the pleadings default
to annoy, embarrass or oppress the person
Based on the Based solely Based on the
pleadings, upon the complaint and
under examination; or when the inquiry
depositions, pleadings evidence, if court touches upon the irrelevant or encroaches upon
admissions and requires its the recognized domains of privilege. Under
affidavits presentation certain conditions and for certain limited
There is no The answer fails No issues as no purposes, it may be taken even after trial has
genuine issue to tender an answer is filed commenced and may be used without the
between the issue or there is by the defending deponent being actually called to the witness
parties an admission of party stand. [Jonathan Landoil v Mangudadatu
the material
Available to Generally Available to the • General Rule: A deposition is not generally
both plaintiff available only to plaintiff alone supposed to be a substitute for the actual
and defendant the plaintiff, testimony in open court of a party or witness.
unless the If the witness is available to testify, he should
defendant be presented in court to testify. If available to
presents a testify, a party’s or witness’ deposition is
counterclaim inadmissible in evidence for being hearsay.
[Dasmariñas Garments,Inc. v. Reyes (1993)]
10-day notice 3-day notice 3-day notice rule
required required applies
• Exception: The exceptions however to the
May be On the merits On the merits inadmissibility of such deposition are
interlocutory or provided for in Rule 23, Section 4, as
on the merits follows:
Usually Available in any Available in any
available in action, except action, except 1) Any deposition may be used by any
actions to annulment of annulment of party for the purpose of contradicting
recover a debt, marriage or marriage or legal or impeaching the testimony of
or for a legal separation separation cases
deponent as a witness;
liquidated sum cases
of money, or
for declaratory 2) The deposition of a party or of any
relief one who at the time of taking the
deposition was an officer, director, or
managing agent of a public or private
corporation, partnership, or association
which is a party may be used by an
adverse party for any purpose;

100% UP LAW UP BAROPS 2008 Page 160 of 227


3) The deposition of a witness, whether DEPOSITION court issuing foreign judicial

or not a party, may be used by any the authority
party for any purpose if the court finds: commission
WHEN Preferred over Generally
a) that the witness is dead; or ISSUED letters resorted to
rogatory since when there is
b) that the witness resides at a the process is difficulty or
distance more than one hundred simpler impossibility of
(100) kilometers from the place of (generally, no obtaining the
trial or hearing, or is out of the need to resort deposition by
Philippines, unless it appears that to diplomatic commission (J.
his absence was procured by the channels unlike Regalado)
party offering the deposition; or in letters
c) that the witness is unable to TONE OF Usually In the form of
attend to testify because of age, COMMUNICA authoritative in a request, it
sickness, infirmity, or TION the sense that being issued to
imprisonment; or it orders the a
commissioned representative
d) that the party offering the officer to take of another
deposition has been unable to the deposition sovereign
procure the attendance of the in accordance state.
witness by subpoena; or with the rules
laid down by
e) upon application and notice, that the issuing
such exceptional circumstances court
exist as to make it desirable, in the
interest of justice and with due • No deposition shall be taken before a person
regard to the importance of who is:
presenting the testimony of 1) a relative within the sixth degree of
witnesses orally in open court, to consanguinity or affinity, or
allow the deposition to be used;
and 2) employee or counsel of any of the parties, or
who is a relative within the same degree, or
4) If only part of a deposition is offered in employee of such counsel; or
evidence by a party, the adverse party may
require him to introduce all of it which is 3) who is financially interested in the action.
relevant to the part introduced, and any
party may introduce any other parts.


• General Rule: Depositions may be taken

before any judge, notary public, or the person
referred to in section 14 (which refers to any
person authorized to administer oaths
designated by the parties by stipulation).
• Exceptions: In our jurisdiction, depositions
in foreign countries may be taken:

1) on notice before a secretary of

embassy or legation, consul general,
consul, vice consul, or consular agent
of the Republic of the Philippines;

2) before such person or officer as may

be appointed by commission or under
letters rogatory; or

3) before any person authorized to

administer oaths as stipulated in
writing by the parties.

ADDRESSED Any authority A judicial
TO WHOM in a foreign authority in the
country foreign country
therein to take
RULES THAT Rules laid Rules laid
GOVERN THE down by the down by such

100% UP LAW UP BAROPS 2008 Page 161 of 227



Af ter jurisdiction has been obtained over any def endant or Af ter an answ er has been f iled, no leave of court is
over the property subject of the action, but bef ore the answ er required thus, the party seeking to take deposition may


SECTIONS 15 AND 25 OF RUL E 23, shall constitute suff icient authorization for the
issuance of subpoenas for the persons named in said notice by the clerk of the court of the
place in w hich the deposition is to be taken. The clerk shall not, however, issue a
subpoena duces tecum to any such person w ithout an order of the court. (RULE 21,

Upon court approval f or the taking of deposition, The court upon motion seasonally made by
the court upon motion seasonally made by any any party or the by the person to be
party or the by the person to be examined f or good examined f or good cause show n (under
cause show n (under Section 16), may issue orders Section 16), may issue orders f or the
f or the protection of parties and deponents f rom protection of parties and deponents f rom
annoyance, embarrassment or oppression. annoyance, embarrassment or oppression.

SCOPE OF EXAMINATION. Unless otherw ise ordered by the court as

provided by section 16 or 18 of this Rule, the deponent may be examined
regarding any m atter, not privileged, w hich is relevant to the subject of the
pending action.

w hom the deposition is to be taken shall put the w itness on A party desiring to take the deposition of any
oath and shall personally, or by some one acting under his person upon w ritten interrogatories shall serve
direction and in his presence, record the testimony of the them upon every other party w ith a notice stating
w itness. The testimony shall be taken stenographically unless the name and address of the person w ho is to
the parties agree otherw ise. All objections made at the time of answ er them and the name or descriptive title and
the examination to the qualifications of the off icer taking the address of the off icer bef ore w hom the deposition
deposition, or to the manner of talking it, or to the evidence is to be taken. Within ten (10) days thereafter, a
presented, or to the conduct of any party, and any other party so served may serve cross-interrogatories
objection to the proceedings, shall be noted by the off icer upon the party proposing to take the deposition.
upon the deposition. Evidence objected to shall be taken Within f ive (5) days thereaf ter, the latter may serve
subject to the objections. IN LIEU OF PARTICIPATING IN re-direct interrogatories upon a party w ho has
THE ORAL EXAMINATION, PARTIES SERV ED WITH served cross-interrogatories. Within three (3) days
NOTICE OF TAKING A DEPOSITION MAY TRANSMIT af ter being served w ith re-direct interrogatories, a
WRITTEN INTERROGATORIES TO THE OFFICERS, WHO party may serve recross-interrogatories upon the
SHALL PROPOUND THEM TO THE WITNESS AND party proposing to take the deposition.

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A copy of the notice and copies of all interrogatories

Examination and cross-examination of deponents served shall be delivered by the party taking the
may proceed as permitted at the trial under
deposition to the officer designated in the notice, who
sections 3 to 18 of Rule 132.
shall proceed promptly, in the manner provided by
sections 17 (i.e., questions are read to deponent
subject to objections), 19 and 20 of Rule 23.

MOTION TO LIMIT OR TERMINATE EXAMINATION: At any time during the taking of the deposition,
on motion or petition of any party or of the deponent, and upon a show ing that the examination is
EMBARRASS, OR OPPRESS THE DEPONENT OR PARTY, the court in w hich the action is pending
or the Regional Trial Court of the place where the deposition is being taken may order the officer
conducting the examination to cease forthw ith from taking the deposition, or may limit the scope and
manner of the taking of the deposition, as provided in section 16 of this Rule.

SUBMISSION TO WITNESS, CHANGES, SIGNING: When the testimony is fully transcribed, the
deposition shall be submitted to the w itness for examination and shall be read to or by him, unless such
examination and reading are waiv ed by the w itness and by the parties. Any changes in form or substance
whic h the w itness desires to make shall be entered upon the deposition by the officer w ith a statement of
the reasons giv en by the witness for making them. The deposition shall then be signed by the w itness,
unless the parties by stipulation w aive the signing or the w itness is ill or cannot be found or refuses to sign.
If the deposition is not signed by the w itness, the officer shall sign it and state on the record the fact of the
waiv er or of the illness or absence of the witness or the fact of the refusal to sign together w ith the reason
be given therefor, if any, and the deposition may then be used as fully as though signed, UNLESS ON A

CERTIFICATION, AND FILING BY OFFICER. The deposition offic er shall certify on

the deposition that the witness was duly sworn to by him and that the deposition is a
true record of the testimony given by the witness. He shall then securely seal the
deposition in an envelope indorsed with the title of the action and marked "Deposition
of (here insert the name of witness)" and shall promptly file it w ith the court in which the
action is pending or send it by regis tered mail to the clerk thereof for filing

NOTICE OF FILING. The officer taking the

deposition shall give prompt notice of its
filing to all the parties

FURNISHING COPIES. Upon payment of reasonable

charges therefor, the officer shall furnis h a copy of the
deposition to any party or to the deponent.

4. OTHER RULES • RULE 23 Section 5. Effect of substitution of

parties. Substitution of parties does not affect
the right to use depositions previously taken;

100% UP LAW UP BAROPS 2008 Page 163 of 227


and, when an action has been dismissed and

another action involving the same subject is • Purpose: To perpetuate the testimony of
afterward brought between the same parties or witnesses for probable use in the event of
their representatives or successors in interest, further proceedings in said court.
all depositions lawfully taken and duly filed in
the former action MAY BE USED IN THE LATTER • Procedure:
• According to Professor Avena, the title of this 1) FILE A VERIFIED PETITION IN THE COURT OF
section notwithstanding, this SECTION THE PLACE OF THE RESIDENCE OF ANY
TAKING A DEPOSITION. It in effect preserves be entitled in the name of the petitioner and
testimony of a person subject to the limitations shall show:
of its use under Section 4 of the rule.
• A party shall not be deemed to make a person a) that the petitioner expects to be a party to
his own witness for any purpose by taking his an action in a court of the Philippines but is
deposition (Section 7). presently unable to bring it or cause it to
• General Rule: Introduction in evidence of be brought;
deposition or any part thereof for any purpose
makes the deponent the witness of the party b) the subject matter of the expected action
introducing the deposition. and his interest therein;
• Exception: if the purpose if to contradict
or impeach the deponent. c) the facts which he desires to establish by
• ONLY INSTANCE WHEN ONE ALWAYS NEEDS the proposed testimony and his reasons for
LEAVE OF COURT BEFORE TAKING desiring to perpetuate it;
DEPOSITIONS: Where the deponent is in jail. d) the names or a description of the persons
• DEPOSITION, WHEN AVAILABLE IN CRIMINAL he expects will be adverse parties and their
CASES: A deposition, in keeping with its nature addresses so far as known; and
as a mode of discovery, should be taken
BEFORE AND NOT DURING TRIAL. In fact, e) the names and addresses of the persons to
rules on criminal practice - particularly on the be examined and the substance of the
defense of alibi, which is respondent’s main testimony which he expects to elicit from
defense in the criminal proceedings against him each, and shall ask for an order authorizing
in the court below - states that when a person the petitioner to take the depositions of the
intends to rely on such a defense, that person persons to be examined named in the
must move for the taking of the deposition of petition for the purpose of perpetuating
his witnesses within the time provided for filing their testimony.
a pre-trial motion. The use of discovery
procedure in criminal cases is directed to the 2) NOTICE AND SERVICE to each person named in
sound discretion of the trial judge. The the petition as an expected adverse party,
deposition taking can not be based nor can it together with a copy of the petition, stating
be denied on flimsy reasons. Discretion has to that the petitioner will apply to the court, at a
be exercised in a reasonable manner and in time and place named therein, for the order
consonance with the spirit of the law. [People described in the petition. At least twenty (20)
v. Hubert Webb (1999)] days before the date of the hearing, the court
shall cause notice thereof to be served on the
parties and prospective deponents in the
GROUNDS FOR QUESTIONING THE DEPOSITION manner provided for service of summons.
satisfied that the perpetuation of the testimony
-Lack of notice to -Deposition -Manner of
may prevent a failure or delay of justice, it
parties officer is preparing the
-Deposition disqualified deposition
shall make an order
officer is -Error in the
disqualified manner of taking 1) designating or describing the persons
-Lack of the deposition whose deposition may be taken and
relevance, -Error in the form specifying the subject matter of the
materiality and of the deposition examination and
competence of
the deposition to
2) whether the depositions shall be taken
the action
upon oral examination or written
Any deposition offered to prove the facts 4) Procedure for taking deposition by oral
therein at the trial of the case, in lieu of actual examination or written interrogatories will be
testimony of the deponent in court, may be governed by Rule 23 on depositions de bene
opposed and excluded for being hearsay save esse.
in specific instances under the Rules.
[Dasmariñas Garments v. Reyes (1993)]

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• J. Regalado and Prof. Avena both believe that one set of interrogatories to be answered by
the following procedure is applicable to civil and the same party (Section 4, Rule 23).
criminal cases. • SCOPE OF INTERROGATORIES: any matter, (1)
• Procedure: not privileged and which is (2) relevant to the
subject of the pending action, whether relating
1) DURING THE PENDENCY OF AN APPEAL, THE to the claim or defense of any other party,
COURT IN WHICH THE JUDGMENT was including the existence, description, nature,
rendered may allow the taking of depositions of custody, condition, and location of any books,
witnesses to perpetuate their testimony in the documents, or other tangible things and the
event of further proceedings in the said court. identity and location of persons having
In such case the party who desires to knowledge of relevant facts
perpetuate the testimony may make a motion • USE OF INTERROGATORIES: Same as Rule 23
in the said court for leave to take the Section 4 mutatis mutandis.
depositions, upon the same notice and service • CONSEQUENCE OF FAILURE TO SERVE
thereof as if the action was pending therein. WRITTEN INTERROGATORIES. A party not
The motion shall state (a) the names and served with written interrogatories may not be
addresses of the persons to be examined and compelled by the adverse party to give
the substance of the testimony which he testimony in open court, or to give a deposition
expects to elicit from each, and (b) the reason pending appeal unless thereafter allowed by
for perpetuating their testimony the court for good cause shown and to prevent
a failure of justice. (RULE 25, section 6)
court finds that the perpetuation of the SET OF INTERROGATORIES:
testimony is proper to avoid a failure or delay
of justice, it may make an order allowing the 1) The party serving the interrogatories may
deposition to be taken. apply to the court for an order to compel
an answer. If it also finds that the refusal
3) RULE 23 APPLIES ON THE MANNER OR to answer was without substantial
CONDUCT OF THE DEPOSITION. justification, it may require the refusing
party or deponent or the counsel advising
the refusal, or both of them, TO PAY THE
ATTORNEY'S FEES (Rule 29, section 1).
2) CONTEMPT for refusal to comply with an
• Procedure: order of the court to compel an answer
(According to Prof. Avena, the basis is Rule
1) Either: 71, Section 3b, not Rule 29.2 which refers
1) BY LEAVE OF COURT AFTER only to depositions)
PROPERTY WHICH IS THE SUBJECT OF 4) Party prohibited from introducing
any party desiring to elicit material and THEREOF (RULE 29, SECTION 3c)
relevant facts from any adverse parties shall 6) STAYING FURTHER PROCEEDINGS UNTIL
file and serve upon the latter written THE ORDER IS OBEYED, or DISMISSING
interrogatories to be answered by the party THE ACTION OR PROCEEDING OR ANY
served or, if the party served is a public or PART THEREOF(RULE 29, SECTION 3c), or
private corporation or a partnership or 7) RENDERING A JUDGMENT BY DEFAULT
association, by any officer thereof competent to AGAINST THE DISOBEDIENT PARTY; AND
testify in its behalf. (RULE 29, SECTION 3c)
8) In lieu of any of the foregoing orders or in
2) ANSWER. The interrogatories shall be addition thereto, an order directing the
ANSWERED FULLY IN WRITING and shall be arrest of any party or agent of a party for
SIGNED AND SWORN TO BY THE PERSON disobeying any of such orders (RULE 29,
MAKING THEM. The party upon whom the SECTION 3c)
interrogatories have been served shall file and
serve a copy of the answers on the party
submitting the interrogatories within fifteen E. REQUEST FOR ADMISSION
(15) days after service thereof unless the court
on motion and for good cause shown, extends UNDER RULE 26
or shortens the time.

interrogatories is presented to the court within JOINED, a party may file and serve upon any
ten (10) days after service thereof, with notice other party may file and serve upon any other
as in case of a motion. party a written request for the admission by
the latter of
may, without leave of court, serve more than RELEVANT DOCUMENT DESCRIBED IN AND

100% UP LAW UP BAROPS 2008 Page 165 of 227



ADMITTED unless, within a period designated in requiring a party to
the request, which shall not be less than fifteen person to bring produce and
(15) days after service thereof, or within such with him any permit the
further time as the court may allow on motion, books, inspection and
the party to whom the request is directed files documents, copying or
and serves upon the party requesting the documents, or photographing,
admission a SWORN STATEMENT either other things by or on behalf
a) denying specifically the matters of which an under his of the moving
admission is requested or control or party, of any
b) setting forth in detail the reasons why he possession. designated
cannot truthfully either admit or deny those documents,
matters. papers, books,
OF HIS SWORN STATEMENT as contemplated in CANNOT BE things, not
the preceding paragraph and his compliance ISSUED privileged,
therewith shall be deferred until such without a prior which
objections are resolved, which resolution shall subpoena ad constitute or
be made as early as practicable. testificandum contain
• EFFECT OF ADMISSION. Any admission made Note the term material to any
by a party pursuant to such request is for the ALSO in Rule matter
purpose of the pending action only and shall 21, section1. involved in the
not constitute an admission by him for any This for her is action and
other purpose nor may the same be used an inherent which are in
against him in any other proceeding. limitation of his possession,
• WITHDRAWAL. The court may allow the party subpoena. This custody or
making an admission under the Rule, whether she believes is control, or
express or implied, to withdraw or amend it the reason why
upon such terms as may be just. Rule 27 (b) order any
• EFFECT OF FAILURE TO FILE AND SERVE becomes party to permit
REQUEST FOR ADMISSION. Unless otherwise relevant. entry upon
allowed by the court for (1) good cause shown designated
and (2) to prevent a failure of justice, a party land or other
who fails to file and serve a request for property in his
admission on the adverse party of material and possession or
relevant facts at issue which ARE, OR OUGHT control for the
• The request for admission MUST BE SERVED surveying, or
ON THE PARTY and NOT ON THE COUNSEL. photographing
This is an exception to the general rule that the property or
notices shall be served upon counsel and not any designated
upon the party. [Duque v. CA (2002)] relevant object
or operation
INSPECTION OF TO WHOM To any person Only to a party

WHEN IT Only during Before and/or

MAY BE trial during trial
• 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 ISSUED BY Issued by a Issued by the
WHOM court before court where
the requesting party be given the opportunity
whom the the action is
to inspect or copy or photograph the document
witness is pending
or take a look at the thing.
required to
attend, or
court where
the deposition
is to be taken

100% UP LAW UP BAROPS 2008 Page 166 of 227



or clerk or party examined, the party causing the
body examination to be made shall deliver to him a
authorized by copy of a detailed written report of the
law or any examining physician setting out his findings
justice of the and conclusions. After such request and
Supreme Court delivery, the party causing the examination to
or CA in any be made shall be entitled upon request to
case or receive from the party examined a like report
investigation of any examination, previously or thereafter
pending within made, of the same mental or physical
the Philippines condition. If the party examined refuses to
WHEN Issued upon Issued upon deliver such report, the court on motion and
ISSUED request motion notice may make an order requiring delivery on
(Request to (application such terms as are just, and if a physician fails
the clerk, no with notice to or refuses to make such a report the court may
notice) the other exclude his testimony if offered at the trial.
IT IS obtaining a report of the examination so
NECESSARY ordered or by taking the deposition of the
TO SHOW examiner, the party examined waives any
GOOD privilege he may have in that action or any
CAUSE other involving the same controversy,
GROUNDS Unreasonable, No good cause regarding the testimony of every other person
FOR oppressive, shown who has examined or may thereafter examine
QUASHAL irrelevant, or him in respect of the same mental or physical
The person in
the subpoena because the results of the examination are
is issued fails intended to be made public. Such examination
to advance the is not necessary to treat or cure the patient but
reasonable to assess the extent of injury or to evaluate his
costs of the physic al or mental condition.
CONSE- Constitutes See Section 3, H. CONSEQUENCES OF
QUENCE OF contempt of Rule 29
DISOBE- the court from REFUSAL UNDER RULE 29
DIENCE which the
subpoena is



deponent refuses to answer PARTY OR DEPONENT
UNDER RULE 28 any question upon oral /WITNESS IN
RULE 23 (depositions
(1) the examination may be
• Procedure: de bene esse),
completed on other matters or

1) MOTION FOR THE ISSUANCE OF AN ORDER (2) adjourned as the RULE 24 (depositions in
FOR EXAMINATION, requisites proponent of the question may perpetuam rei
prefer. memoriam)
a) the lis mota of the case is the physical or
(3) The proponent may RULE 25.
mental condition of a party (NOT A
thereafter apply (i.e., by INTERROGATORIES TO
b) good cause ANSWER- Prof. Avena) to the
proper court of the place
c) notice to the party to be examined where the deposition is being
taken, for an order to compel
d) must specify physician an answer.

e) scope of examination
GRANTED, the court shall
require the refusing party or
deponent to answer the

100% UP LAW UP BAROPS 2008 Page 167 of 227



question or interrogatory and the claim of the party RULE 24 (depositions in

if it also finds that the refusal obtaining the order; perpetuam rei
to answer was without memoriam)
substantial justification, it (b) An order
may require the refusing (1) refusing to allow RULE 25
party or deponent or the the disobedient party (Interrogatories to
counsel advising the refusal, to support or oppose parties)
or both of them, to pay the designated claims or
proponent the amount of the defenses or
RULE 27 (Motion for
reasonable expenses
production or inspection
incurred in obtaining the (2) prohibiting him
of documents or things)
order, including attorney's from introducing in
fees. evidence designated
documents or things RULE 28 (Physical and
• IF THE APPLICATION IS or items of testimony, mental examination of
DENIED and the court finds or persons)
that it was filed without
substantial justification, the (3)from introducing (APPLIES TO all modes
court may require the evidence of physical of discovery except
proponent or the counsel or mental condition; RULE 26 ON REQUEST
advising the filing of the FOR ADMISSION BY AN
application, or both of them, (c) An order ADVERSE PARTY)
to pay to the refusing party (1) striking out
or deponent the amount of pleadings or parts
the reasonable expenses thereof, or
incurred in opposing the
application, including (2) staying further
attorney's fees. proceedings until the
order is obeyed, or

Section 2. Contempt of court. (3) dismissing the

If a party or other witness action or proceeding
or any part thereof,
(1) refuses to BE SWORN
OR (4) or rendering a
RULE 23 (depositions judgment by default
de bene esse), against the
BEING DIRECTED TO disobedient party;
DO SO RULE 24 (depositions in and
perpetuam rei
by the court of the place in memoriam) (d) IN LIEU OF ANY OF THE
which the deposition is being FOREGOING ORDERS OR IN
taken, the refusal may be Prof. Avena believes ADDITION THERETO, an order
considered a contempt of that that Section 2 DOES directing the arrest of any
court. NOT CONTEMPLATE party or agent of a party for
Rule 25 on disobeying any of such orders
interrogatories because except an order to submit to a
of the phrase “by the physical or mental
court of the place in examination.
which the deposition is
being taken.” How then Section 4. Expenses on refusal PARTY SERVED WITH A
will you cite a party or to admit. REQUEST
witness for contempt?
The answer is to apply If a party after being served RULE 26 ADMISSION
for an order to compel with a request under Rule 26 BY AN ADVERSE PARTY
an answer and once an to admit the genuineness of
order is issued, you can any document or the truth of
Prof. Avena: Pay
use Rule 71.3b as basis any matter of fact
attention to the
for holding a party or distinction between
other witness for (1) SERVES A SWORN
Rule 26.5 and this
Section. Rule 26.5
applies to party who
Section 3. Other consequences fails to file and serve
request for admission
FOR: OR MANAGING AGENT applies to the party
OF A PARTY IN 23, 24, being served with a
(a) An order that the matters 25 IN RELATION TO request. Both
regarding which the questions RULE 29.1 ON ORDER provisions have a
were asked, or the character TO COMPEL AN common objective, that
or description of the thing or ANSWER is, to help expedite
land, or the contents of the court proceedings.
paper, or the physical or
PARTY IN 27, 28 he may apply to the court for
mental condition of the party,
an order requiring the other
or any other designated facts
RULE 23 (depositions party to pay him the
shall be taken to be
de bene esse), reasonable expenses incurred
established for the purposes of
in making such proof, including
the action in accordance with
attorney's fees. Unless the

100% UP LAW UP BAROPS 2008 Page 168 of 227



court finds THAT THERE WERE



If a party or an officer or RULE 23 (depositions
managing agent of a party de bene esse),
• Definition: A mandatory conference and
(1) wilfully fails to appear personal confrontation before the judge
RULE 24 (depositions in
before the officer who is to between the parties litigant and their
perpetuam rei
take his deposition, after
memoriam) representative counsels, called by the court
being served with a proper
notice, or after the joinder of issues in a case or after the
RULE 25. last pleading has been filed and before trial, for
(2) fails to serve answers INTERROGATORIES TO the purpose of settling the litigation
to interrogatories PARTIES expeditiously or simplifying the issues without
submitted under Rule 25 sacrificing the necessary demands of justice.
after proper service of • Purpose: To consider: [Rule 18, Sec. 2]
such interrogatories, 1) Possibility of an amicable settlement or of a
submission to alternative modes of dispute
NOTICE, MAY resolution;
2) Simplification of the issues;
(1) strike out all or any 3) Necessity/desirability of amendments to
part of any pleading of the pleadings;
that party, or 4) Possibility of obtaining stipulations or
admissions of facts and of documents to
(2) dismiss the action or avoid unnecessary proof;
proceeding or any part
5) Limitation of the number of witnesses;
thereof, or
6) Advisability of a preliminary reference of
(3) enter a judgment by issues to a commissioner;
default against that party, 7) Propriety of rendering judgment on the
pleadings, or summary judgment, or of
(4) and in its discretion, dismissing the action should a valid ground
order him to pay therefor be found to exist;
reasonable expenses 8) Advisability/ecessity of suspending the
incurred by the other,
proceedings; and
including attorney's fees
SECTION 6. EXPENSES Applies to all provisions
9) Other matters that may aid in the prompt
AGAINST THE REPUBLIC OF in Rule 29 requiring a disposition of the action.
THE PHILIPPINES. Expenses noncompliant party or • Pre-trial is primarily intended to make certain
and attorney's fees are not to witness (who that all issues necessary to the disposition of a
be imposed upon the Republic represents the Republic case are properly raised. Thus, to obviate the
of the Philippines under this in an official capacity) element of surprise, parties are expected to
Rule to pay. 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

100% UP LAW UP BAROPS 2008 Page 169 of 227


amount to achieving the end desired. 5) Should the action proceed to trial, the
[Calalang v. CA (1993)] explicit definition and limit of the issues to
be tried.
NOTICE OF PRE-TRIAL [Rule 18, Sec. 3] • Consequence: The contents of the order shall
control the subsequent course of the action,
• Notice of pre-trial shall be served on counsel, unless modified before trial to prevent manifest
or on the party who has no counsel. injustice.
• Counsel served with such notice has a duty to • Upon manifestation of the parties of their
notify the party he represents. 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
• It is the duty of the parties and their counsel to
settlement conference still fails, then the action
appear at the pre-trial.
should have continued as if no suspension had
• A party’s non-appearance may be excused only
taken place. [Goldloop Properties v. CA (1992)]
if either:
1) Valid cause is shown for it;
• Note: AM 03-1-09-SC
2) A representative appears in his 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 • Under the direct supervision of the judge, the
facts and of documents. clerk of court shall keep a calendar of cases for
• Note: See the section on default for the effects pre-trial, for trial, those whose trials were
of failure to appear in the pre-trial. adjourned/postponed, and those with motions
• SC admonishes the courts against precipitate to set for hearing. [Rule 20, Sec. 1]
orders of default as they have the effect of • Preference shall be given to habeas corpus
denying the party the chance to be heard. cases, election cases, special civil actions, and
There are instances when parties may properly those so required by law. [Rule 20, Sec. 1]
be defaulted, but such is the exception rather • The assignment of cases to the different
than the rule and should be used only in clear branches of a court shall be done exclusively by
cases of obstinate refusal or inordinate neglect raffle. The assignment shall be done in open
to comply with court orders. [Citibank v. Chua session of which adequate notice shall be given
(1993)] so as to afford interested parties the
opportunity to be present. [Rule 20, Sec. 2]
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:
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
6) Number and names of the witnesses, and
the substance of their respective
• Failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-trial.

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;

100% UP LAW UP BAROPS 2008 Page 170 of 227



directed to a person, requiring him to attend
and to testify at the hearing/trial of an action
or at any investigation conducted by competent
authority, or for the taking of his deposition.
directed to a person, requiring him to bring
with him any books/documents/things under
his control.

BY WHOM ISSUED [Rule 21, Sec. 2]

1) The court before whom the witness is required
to attend;
2) The court of the place where the deposition is
to be taken;
VII. TRIAL 3) The officer/body authorized by law to do so in
connection with investigations conducted by
said officer/body;
NOTICE OF TRIAL [Rule 30, Sec. 1]
4) Any SC/CA Justice in any case or investigation
• Upon entry of a case in the trial calendar, the
pending within the Philippines.
clerk shall notify parties the date of its trial,
ensuring receipt of the notice at least 5 days
before the trial date.
21, Sec. 2]
• The judge/officer shall examine and study the
application carefully to determine WON it is
A. ADJOURNMENTS AND made for a valid purpose.
• However, no prisoner sentenced to death,
POSTPONEMENTS [Rule 30, reclusion perpetua or life imprisonment and
Sec. 2] who is confined in a penal institution shall be
brought outside for appearance/attendance in
any court unless authorized by the SC.
• General rule: The court may adjourn a trial
from day to day to any stated time, as the SUBPOENA’S FORM AND CONTENTS [Rule 21, Sec.
expeditious and convenient transaction of 3]
business may require. 1. Name of court;
• Exception: Court may not adjourn for 2. Title of action/investigation;
longer than 1 month for each adjournment, 3. Directed to a person whose attendance is
nor more than 3 months in all. required
• Exception to exception: When 4. If subpoena duces tecum, a reasonable
authorized in writing by the SC Court description of the books/documents/things
Administrator. demanded which must appear to the court
prima facie relevant.
Ground for Requisite for motion to
postponement of trial postpone
For absence of evidence Affidavit showing:
[Rule 30, Sec. 3] 1) The
• Upon motion promptly made, at/before the
materiality/relevancy of time specified in the subpoena.
such evidence; • Grounds for quashing:
2) That due diligence has 1) Subpoena duces tecum:
been used to procure the a) It is unreasonable and oppressive;
evidence b) The relevancy of the
books/documents/things does not
But if the adverse party
admits the facts to be
given in evidence, trial
c) The person in whose behalf the
shall not be postponed subpoena is issued fails to advance the
even if he objects or reasonable cost of production;
reserves the right to d) Witness fees and kilometrage were not
object to their tendered when subpoena was served.
admissibility. 2) Subpoena ad testificandum:
a) That the witness is not bound thereby;
For illness of Affidavit or sworn b) That witness fees and kilometrage were
party/counsel [Rule 30, certification:
not tendered when the subpoena was
Sec. 4] 1) That the presence of
such party/counsel at the served.
trial is indispensable;
2) That the character of SUBPOENA FOR DEPOSITIONS [Rule 21, Sec. 5]
his illness is such as to • Proof of service of a notice to take a deposition
render his non- is sufficient authorization for the issuance of
attendance excusable. 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.
B. SUBPOENA • However, subpoena duces tecum for
depositions cannot be issued without court
TYPES OF SUBPOENA [Rule 21, Sec. 1]

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SERVICE OF SUBPOENA [Rule 21, Sec. 6] 4) 4th-party (and so forth) shall adduce evidence
• Same manner as personal or substituted of the material facts pleaded by them;
service of summons. 5) Parties whom any counterclaim or cross-claim
• The original shall be exhibited and a copy has been pleaded, shall adduce evidence in
delivered to person on whom it is served, with support of their defense, in the order
tender of fees for one day’s attendance and prescribed by the court.
kilometrage. 6) Parties may then respectively adduce rebutting
• Exception: Tender not required if evidence only.
subpoena is issued by or on behalf of the • Exception: When the court permits them
Republic or an officer/agency thereof. to adduce evidence upon their original
• For subpoena duces tecum, also tender the case, for good reasons and in furtherance
reasonable cost of producing the of justice.
books/documents/things demanded. 7) Upon admission of evidence, the case shall be
• Service must be made so as to allow the deemed submitted for decision, unless the
witness reasonable time for preparation and court directs the parties to argue or to submit
travel to the place of attendance their respective memoranda or any further
7] • If several defendants or 3rd-party defendants
• A person present in court before a judicial having separate defenses appear by different
officer may be required to testify as if he were counsel, the court shall determine the relative
in attendance upon a subpoena issued by such order of presentation of their evidence.
REMEDY IN CASE OF WITNESS’ FAILURE TO • Parties may agree in writing upon the facts
ATTEND involved in the litigation, and submit the case
• Upon proof of service of subpoena and of for judgment without introduction of evidence.
witness’ failure to attend, the court/judge • If the parties agree to only some of the facts in
issuing the subpoena may issue a warrant to issue, trial shall be held as to the disputed facts
the sheriff to arrest the witness and bring him in such order as the court shall prescribe.
before the court/officer where his attendance is
required. [Rule 21, Sec. 8] STATEMENT OF THE JUDGE [Rule 30, Sec. 7]
• The cost of warrant and seizure shall be • During the hearing/trial of the case, any
paid by the witness if the court determines statement made by the judge shall be made of
that the failure to attend was willful and record in the STN if made with reference to the
without just excuse. case/parties/witnesses/counsels.
• Such failure shall be deemed a contempt of the
court which issued the subpoena. [Rule 21, SUSPENSION OF ACTIONS [Rule 30, Sec. 8]
Sec. 9] • Governed by the CC provisions.
• If subpoena was not issued by a court, the
disobedience shall be punished by RECEPTION OF EVIDENCE [Rule 30, Sec. 9]
applicable law or ROC. • General rule: The judge of the court where
• Exception: Arrest warrant and contempt not the case is pending shall personally receive the
applicable to: [Rule 21, Sec. 10] evidence to be adduced by the parties.
1) A witness who resides more than 100km • Exception: The court may delegate the
from his residence to the place where he is reception of evidence to its clerk of court
to testify. who is a member of the bar in:
2) A detention prisoner, if there is no a) Default hearings;
permission from the court in which his case b) Ex parte hearings;
is pending. c) Cases where parties agree in writing.
• However, the clerk of court has no power
to rule on objections to any
C. CONDUCT OF TRIAL [Rule 30, question/admission of exhibits.
• Objections shall be resolved by the court
Sec. 5]
upon submission of the clerk’s report and
TSN within 10 days from termination of the
• General rule: Trial shall be limited to the
issues stated in the pre-trial order.
• Exception:
1) Provisions on separate trials. D. TRIAL BY COMMISSIONER
2) When for special reasons the court
directs otherwise.
• COMMISSIONER – Includes a referee, an
GENERAL ORDER OF TRIAL auditor or an examiner. [Rule 32, Sec. 1]
1) Plaintiff shall adduce evidence in support of his
2) Defendant shall adduce evidence in support of 1 and 2]
his defense, counterclaim, cross-claim and 3rd- 1) Reference by consent of both parties.
party complaint; 2) Reference ordered on motion when:
3) 3rd-party defendant (if any) shall adduce a) Trial of an issue of fact requires the
evidence of his defense, counterclaim, cross- examination of a long account on either
claim and 4th-party complaint; side

100% UP LAW UP BAROPS 2008 Page 172 of 227


b) Taking of an account is necessary for the • It is invoked after the plaintiff has presented all
court’s information before judgment, or for the evidence available to him.
carrying judgment/order into effect.
c) A question of fact, other than upon the Grant of demurrer Denial of demurrer
pleadings, arises in any stage of a case or The case shall be The court should set the
for carrying a judgment/order into effect. dismissed date for the reception of
the defendant’s evidence-
ORDER OF REFERENCE [Rule 32, Sec. 2 to 12] in-chief [Northwest
• When a reference is made, the clerk shall Airlines v. CA]
furnish the commissioner with a copy of the Plaintiff's remedy would Xxx
order of reference. The order may specify/limit be to appeal.
the commissioner’s power, and may direct him
to report only upon particular issues, or to However, if the order
do/perform particular acts, or to receive and granting the demurrer is
reversed on appeal, the
report evidence only.
defendant loses his right
• The commissioner shall set a time/place for the to present evidence.
first meeting and shall notify parties/counsels. [Rule 33, Sec .1;
• Upon completion of the trial/hearing, the Republic v. Tuvera]
commissioner shall file a written report with the
court. The appellate court
• The clerk shall notify parties of the filing of the should render judgment
report. The parties 10 days to object to the on the basis of the
evidence submitted by
report’s findings.
the plaintiff. [Radiowealth
• After the 10 days, the report shall be set for Finance v. Del Rosario]X
hearing. The court may issue an order
adopting/modifying/rejecting the report or part
of it. Equivalent to judgment An interlocutory order and
• When parties stipulate that the Commissioner's (i.e. based on the merits not appealable. However,
of the evidence presented it may be the subject of a
findings of fact are final, only questions of law
so far) petition for certiorari for
shall thereafter be considered. GAD under Rule 65
[Katigbak v.
MTD Demurrer
When to File Before the service After the plaintiff
and filing of the rests his case
CONSOLIDATION OF TRIAL [Rule 31, Sec. 1] answer
• When actions involving common question of
Ground Those Only ground: The
law/fact are pending before the court, it may: enumerated in plaintiff has
1) Order a joint hearing/trial of any/all the Rule 16 shown no right to
matters in issue in the actions; relief (i.e.
2) Order all the actions consolidated; evidence is
3) Make such orders concerning the insufficient)
proceedings as to avoid unnecessary costs Effect If a MTD is
or delay. granted, the
• Where a case has been partially tried before complaint is
one judge, the consolidation of the same with
dismissed. But,
another related case pending before another depending on the
judge who had no opportunity to observe the ground, the
demeanor of the witness during trial makes the complaint may be
consolidation not mandatory. [PCGG v. re-filed
Sandiganbayan (1992)]
If the MTD is
SEVERANCE OF TRIAL [Rule 31, Sec. 2] denied, the
defendant shall
• The court may issue separate trials for
file his responsive
convenience or to avoid prejudice: pleading
1) Of any claim, cross-claim, counterclaim or
3rd-party complaint;
2) Of any separate issue; Demurrer in civil cases Demurrer in criminal
3) Of any number of claims, cross-claims, cases
counterclaims, 3rd-party complaints or


• Definition: A specie of MTD that may be

invoked based on insufficiency of evidence (i.e.
upon the facts and the law the plaintiff has
shown no right to relief). [Rule 33, Sec. 1]

100% UP LAW UP BAROPS 2008 Page 173 of 227


Defendant need not ask May be filed with or • Exception: Where the inevitable
for leave of court without leave of court. conclusion from the body of the decision is
so clear that there was a mistake in the
Leave of court is dispositive portion, the body of the decision
necessary so that the
will prevail. [Poland Industrial v. National
accused can present his
evidence in case the Dev’t Co.]
demurrer is denied
If the demurrer was 1) JUDGMENT UPON COMPROMISE – It is one
without leave, the conferred on the basis of a compromise
accused can no longer agreement entered into between the parties.
present his evidence; the • It is immediately executory in the absence
case is deemed submitted
of a motion to set aside on the ground of
for decision based on
prosecution’s evidence FAME.
[Rule 119, Sec.23] 2) JUDGMENT UPON CONFESSION – It is one
rendered by the court when a party expressly
If the demurrer is The order of dismissal is agrees to the other party’s claim or
granted, the order of not appealable because it acknowledges the validity of the claim against
dismissal is appealable will constitute double
Judgment upon Judgment by
compromise confession
VIII. JUDGMENTS, FINAL ORDERS The provisions and terms An affirmative and
are settled by the parties voluntary act of the
AND ENTRY OF JUDGMENT to the action. The defendant himself. The
judgment is entered in court exercises a certain
the record by consent of amount of supervision
the court. over the entry of
• JUDGMENT - The final ruling by a court of judgment.
competent jurisdiction regarding the rights and
obligations of the parties or other matters
submitted to it in an action/proceeding. • Kinds of judgment by confession:
1) OPINION OF THE COURT - It contains the defendant, instead of entering a plea,
findings of facts and conclusions of law; acknowledged and confessed that the
2) DISPOSITION OF THE CASE – The final and plaintiff’s cause of action was just and
actual disposition of the rights litigated (i.e. the rightful.
dispositive part); b) JUDGMENT BY CONFESSION
3) Signature of the judge. RELICTA VERIFICATIONE – After
pleading and before trial, the defendant
REQUISITES OF A VALID JUDGMENT [Rule 36, Sec. both: (a) confessed the plaintiff’s cause
1; Art. 8, Sec. 14, Consti] of action and (b) withdrew his plea or
1) Court/tribunal must be with authority to hear other allegations, whereupon judgment
and determine the matter before it; was entered against him without
2) Court must have jurisdiction over the parties proceeding to trial.
and the subject matter; • Remedy against judgment by consent,
3) Parties must have been given an opportunity to confession or compromise is to first file a
adduce evidence in their behalf; motion to set it aside; if denied, file the
4) Evidence must have been considered by the appropriate petition under Rule 65.
tribunal in deciding the case; [Acosta v. 3) JUDGMENT UPON THE MERITS – It is one
COMELEC] that is rendered after consideration of the
5) Judgment must be in writing, personally and evidence submitted by the parties during the
directly prepared by the judge; trial of the case.
• A verbal judgment is, under the law, 4) CLARIFICATORY JUDGMENT – It is rendered
ineffective. [Corpus v. Sandiganbayan] to clarify an ambiguous judgment or one
6) Judgment must state clearly the facts and the difficult to comply with.
law upon which the decision is based, signed by 5) JUDGMENT NON PRO TUNC - Literally, “now
the judge and filed with the clerk of court. for then”. It is a judgment intended to enter
• A decision need not be a complete recital of into the record the acts which had already been
the evidence presented. So long as the done, but which do not appear in the records.
factual and legal bases are distinctly and 6) JUDGMENT SIN PERJUICIO – It may refer to
clearly set forth, the judgment is valid. a dismissal of a case without prejudice to it
[Chan v. CA] being re-filed.
INTERPRETATION OF THE JUDGMENT effectivity of which depends upon the
• Where the judgment is difficult to execute occurrence or non-occurrence of an event.
because of ambiguity in its terms, the remedy 8) SEVERAL JUDGMENT – It is one rendered by
of the party is to file a motion for clarificatory a court against one or more defendants and not
judgment and not to assail the judgment as against all of them, leaving the action to
void. proceed against the others. [Rule 36, Sec. 4]
• Where there is a conflict between the body and • It is proper when the liability of each party
the dispositive portion (fallo) of the decision, is clearly separate and distinct from his co-
the dispositive portion controls. parties such that the claims against each of
them could have been the subject of

100% UP LAW UP BAROPS 2008 Page 174 of 227


separate suits, and the judgment for or and legal issues

against one of them will not necessarily
affect the other.
disposing of a claim among several others 36, Sec. 2]
presented in a case, after a determination of • If there is no appeal/MNT/MFR filed within the
the issues material to a particular claim and all prescribed periods, the clerk of court shall
counterclaims arising out of the transaction or enter the judgment or final order in the book of
occurrence that is the subject matter of said entries of judgments.
claim. [Rule 36, Sec. 5] • Date of finality of the judgment – Date of its
• It is proper when more than one claim for entry in the book.
relief is presented in an action for the The record shall contain the judgment’s dispositive
determination as to the issues material to part, shall be signed by the clerk of court, and
the claim has been made. certified that the judgment has become final and
• The judgment shall terminate the action executor.
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]
• 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.
• 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

• The power to amend judgments is inherent to
the court before judgment becomes final and
• General rule: The court cannot amend the
judgment once it has become final and
• Exception:
1) To make corrections of clerical errors,
not substantial amendments, as by an
amendment non pro tunc;
2) To clarify an ambiguity which is borne
out by and justifiable in the context of
the decision;
3) In judgments for support, which can
always be amended from time to time.

Amended/clarified Supplemental decision

An entirely new decision Does not take the place of
and supersedes the or extinguish the original
original judgment judgment

Court makes a thorough Serves to add to the

study of the original original judgment
judgment and renders the
amended and clarified
judgment only after
considering all the factual

100% UP LAW UP BAROPS 2008 Page 175 of 227


IX. POST-JUDGMENT REMEDIES • Remedy if motion is denied:

1) To appeal from the judgment or final order
itself. [Rule 37, Sec. 9].
2) The order denying the MNT/MFR may itself
Remedies against a judgment
be assailed by a petition for certiorari under
A. Before a judgment becomes final and executory: Rule 65.
1) MFR;
• A MNT or MFR is not a prerequisite to an
2) MNT;
3) Appeal.
appeal, a petition for review or a petition for
review on certiorari. And since the purpose is to
B. After the judgment becomes final and executory: expedite the final disposition of cases, a strict
1) Petition for relief from judgment; but prospective application of said ruling is in
2) Action to annul a judgment; order. [Habaluyas v. Japson (1986)]
3) Certiorari;
4) Collateral attack of a judgment that is void on

• MFR under Rule 37 is directed against a

judgment or final order. It is not the MFR of an
interlocutory order, which often precedes a
A. REMEDIES BEFORE A petition for certiorari under Rule 65.
JUDGMENT HAS BECOME • It does not apply to cases that fall under
Summary Procedure. [Sec. 19(c), Revised
FINAL AND EXECUTORY Rules on Summary Procedure]

GROUNDS [Rule 37, Sec. 1(2)]

PROVISIONS COMMON TO MNT/MFR 1) The evidence is insufficient to justify the
WHEN TO FILE 2) The damages awarded are excessive;
• Motion must be filed within the period for 3) The decision or final order is contrary to law.
appeal. [Rule 37, Sec. 1]
• The period for appeal is within 15 days FORM AND CONTENT
after notice to the appellant of the • MFR must be in writing, a written notice of
judgment or final order appealed from. which must be served on the adverse party.
[Rule 40, Sec. 2; Rule 41, Sec. 3; Rule 45, • It is not sufficient to mention the ground relied
Sec. 2] upon. It is necessary for the MFR to point out
• The 15-day period is deemed to commence specifically the findings/conclusions of the
upon receipt by the counsel of record, judgment or final order which are not
which is considered notice to the parties. supported by the evidence or which are
Service upon the parties themselves is contrary to law, making express reference to
prohibited and is not considered as official the testimonial/documentary evidence or to the
receipt of judgment. provisions of law alleged to be contrary to such
• No motion for extension of time shall be findings or conclusions. [Rule 39, Sec. 2]
allowed. [Rule 37, Sec. 2; Rule 41, Sec. 3] • Non-compliance with this requirement would
• Where a ROA is required, the appellant shall reduce the motion to a mere pro forma motion,
file a (1) NOA and a (2) ROA within 30 days which shall not toll the period for appeal.
from notice of the judgment or final order.
[Rule 41, Sec. 3] EFFECT
• A ROA is required only in:
1) Special proceedings; Grant of MFR Denial of MFR
2) Other cases of multiple or separate The court may amend the The judgment or final
appeals. [Rule 40, Sec. 3] judgment or final order order shall stand as is
accordingly. [Rule 37,
EFFECT OF FILING Sec. 3] The amended
• The filing of a timely motion interrupts the judgment is in the nature
period to appeal. [Rule 40, Sec. 2; Rule 41, of a new judgment, which
Sec. 3] supersedes the original
FRESH PERIOD RULE If the court finds that a XXX
• If the motion is denied, the movant has a motion affects less than
“fresh period” of 15 days from receipt or notice all of the matters in
controversy or less than
of the order denying the MNT/MFR within which
all of the parties to it, the
to file an appeal. This applies to Rules 40, 41, order may grant a
42, 43 and 45. [Neypes v. CA (2005)] reconsideration as to
• Note: Prior to Neypes v. CA, if a party filed such issues if severable
a MNT/MFR, he only had the remaining without interfering with
time of the 15-day appeal period to file his the judgment or final
appeal. order upon the rest [Rule
37, Sec. 7]
• The motion shall be resolved within 30 days • An order denying a MFR is not appealable.
from the time it is submitted for resolution. [Rule 37, Sec. 9]
[Rule 37, Sec. 4] • SINGLE MOTION RULE – A party shall not be
• No appeal may be taken from an order denying allowed to file a 2nd MFR of a judgment or
a MNT/MFR. [Rule 37, Sec. 9; Rule 41, Sec. final order. [Rule 37, Sec. 5]

100% UP LAW UP BAROPS 2008 Page 176 of 227


• The prohibition on a 2nd motion does not EFFECT

apply to a MFR of an interlocutory order.
Grant of MNT Denial of MNT
The original judgment The judgment or final
MOTION FOR NEW TRIAL (MNT) shall be vacated, and the order shall stand as is
action shall stand for trial
GROUNDS [Rule 37, Sec. 1] de novo. The recorded
• The aggrieved party may move the TC to set evidence upon the former
trial shall be used at the
aside the judgment or final order and grant a
new trial without retaking
new trial for one or more of the following them (if they are material
causes materially affecting the substantial and competent) [Rule 37,
rights of the said party: Sec. 6]
1) FAME (Extrinsic Fraud, Accident, Mistake or
If the court finds that a XXX
Excusable Negligence) which ordinary
motion affects the issues
prudence could not have guarded against of the case as to only a
and by reason of which the aggrieved party part or less than all of the
has probably been impaired in his rights. matters in controversy, or
• The motion shall be supported by only one or less than all
affidavits of merit. Non-compliance with of the parties to it, the
this requirement would reduce the order may grant a
motion to a mere pro forma motion. reconsideration as to such
issues if severable
[Rule 37, Sec. 2]
without interfering with
• The affidavits of merit must show the the judgment or final
facts (not mere conclusions or order upon the rest [Rule
opinions) constituting the valid cause of 37, Sec. 7]
action or defense which the movant
may prove in case a new trial is The effect of this order is
granted. Otherwise, if the complaint is a partial new trial.
after all groundless or the defense is
When there is an order
ineffective, a new trial would serve no
for partial new trial, the
purpose. court may either enter a
• EXTRINSIC FRAUD – Any fraudulent judgment or final order as
scheme executed by the prevailing to the rest, or stay the
party outside of the trial against the enforcement of such
losing party who, because of such judgment or final order
fraud, was prevented from presenting until after the new trial
his side of the case. [Rule 37, Sec. 8]
• INTRINSIC FRAUD – Acts of a party
during the trial which does not affect
the presentation of the case. WHEN A 2ND MNT IS PERMISSIBLE
• ACCIDENT - An event that occurs • A MNT shall include all grounds then available.
without one’s foresight or expectation. Those not so included are deemed waived.
• MISTAKE - Generally, mistakes of However, when a ground for new trial was not
facts or law where, in good faith, the existing/available when the 1st motion was
defendant was misled in a case. made, a 2nd MNT may be filed. [Rule 37, Sec.
• What constitutes excusable negligence 5]
depends upon the circumstances of
MNT Motion for reopening
each case.
of the trial
2) Newly discovered evidence, which he could Legal Expressly Not mentioned in the
not, with reasonable diligence, have Basis provided for in ROC but is nevertheless
discovered and produced at the trial, and the ROC a recognized procedural
which if presented would probably alter the recourse deriving
result. validity and acceptance
• The motion shall be supported by: from long established
a) Affidavits of the witnesses by whom usage
such evidence is expected to be
Note: It is referred to
given; and/or in the Rules of Criminal
b) Duly authenticated documents Procedure (Rule 119,
which are proposed to be Sec. 24)
introduced in evidence. When Only after May be presented after
• Non-compliance with this requirement Proper promulgation either or both the
would reduce the motion to a mere pro of judgment parties have formally
forma motion. [Rule 37, Sec. 2] offered and closed their
• Newly discovered evidence may and evidence, but before
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. [Tumang v. CA]

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Grounds Civil cases: Controlled by no other so long as the facts required to be set out
Rule 37; rule than the also appear in the verified petition.
Criminal cases: paramount interest of • When an affidavit of merit is not necessary:
Rule 121 justice, relying solely
a) When there is LOJ over the defendant;
upon the sound
discretion of the TC.
b) When there is LOJ over the subject
The exercise of such matter;
discretion may not be c) When judgment was taken by default;
reviewed on appeal d) When judgment was entered by
unless a clear abuse mistake or was obtained by fraud; or
thereof is shown e) Other similar cases.

1) Hearing to determine WON the judgment
B. REMEDIES AFTER A should be set aside;
JUDGMENT HAS BECOME 2) If #1 in the affirmative, hearing upon the
merits of the case.
RELIEF FROM JUDGMENTS, • The court in which the action is filed may grant
such preliminary injunction as may be
necessary for the preservation right of the
parties, upon the filing of the petitioner of a
• Definition: It is a legal remedy whereby a
bond in favor of the adverse party. [Rule 38,
party seeks to set aside a judgment rendered Sec. 5]
against him by a court whenever he is unjustly • A petition for relief is a remedy available after
deprived of a hearing or was prevented from the judgment or final order has become final
taking an appeal because of FAME. and executory. Hence, the judgment is
• A party who has filed a timely MNT/MFR can no susceptible to being the subject of a writ of
longer file a petition for relief from judgment
after his motion has been denied. These
remedies are mutually exclusive. It is only in Rule 37 Rule 38
appropriate cases where a party aggrieved by When Before judgment After judgment
the judgment has not been able to file a available becomes final and becomes final
MNT/MFR that a petition for relief can be filed. executory and executory
[Francisco v. Puno]
Period to file Within the time to Within 60 days
GROUNDS [Rule 38, Sec. 1 and 2] petition appeal from knowledge
1) When a judgment or final order is entered into, of judgment
AND within 6
or any other proceedings is taken against the
months from
petitioner in any court through FAME. entry of
2) When the petitioner has been prevented from judgment
taking an appeal by FAME.
Scope of Applies to Judgments, final
• Under both grounds, the petition shall be filed application judgments and final orders, and
in the same court which rendered the judgment orders only other
and in the very same case. proceedings:
- Land
PRAYER - Special
1) That the judgment/order/proceeding be set Proceedings;
aside; - Order of
2) That the appeal be given due course. Execution.

WHEN TO FILE [Rule 38, Sec. 3] Grounds 1) FAME; FAME

1) 60 days from knowledge of 2) Newly discovered
judgment/order/proceedings to be set aside; evidence
Nature Legal remedy Equitable
2) 6 months from the entry of such
Verification Motion need not be Petition must be
verified verified
• Both periods must concur. They are also non-
extendible and never interrupted. • Rule 38 is of equitable character and is allowed
only in exceptional cases, when there is no
FORM AND CONTENT OF PETITION other available/adequate remedy. A petition for
1) Must be verified; relief is not regarded with favor and judgment
2) Must be accompanied by an affidavit showing will not be disturbed where the party
the FAME relied upon; complaining has or by exercising proper
3) The affidavit of merit accompanying the diligence would have had, an adequate remedy
petition must also show the facts constituting at law. Relief will not be granted to a party
the petitioner’s good and substantial cause of when loss of remedy at law was due to his own
action or defense. negligence or mistaken mode of procedure;
• An affidavit of merit serves as the otherwise, the petition for relief will be
jurisdictional basis for the court to entertain tantamount to reviving the right of appeal
a petition for relief. However, it is not a which had already been lost. [Meralco v. CA
fatal defect to warrant denial of the petition (1990)]

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mode of appeal applicability • Required only in:

Ordinary appeal Rule 40 Appeal to RTC of MTC 1) Special proceedings;
judgment/final order 2) Multiple or separate appeals where the
Rule 41 Appeal to CA of RTC law/ROC so requires.
judgment/final order
rendered in exercise of
RTC's original FRESH PERIOD RULE [Neypes v. CA (2005)]
Petition for review Rule 42 Appeal to CA of RTC • Definition: Period of appeal is interrupted by a
judgment/final order timely MNT/MFR. Motion for extension of time
rendered in exercise of to file MNT or MFR is not allowed. [Rule 40,
RTC's appellate Sec. 2]
• Applicability:
Rule 43 Appeal to CA of QJA
1) Rule 40 on appeals from MTC to RTC.
orders/awards/ 2) Rule 42 on petitions for review from RTC to
resolutions rendered in CA.
exercise of quasi- 3) Rule 43 on appeals from QJA to CA.
judicial functions 4) Rule 45 on appeals by certiorari to SC.
Appeal by Rule 45 Appeal to SC where • Rationale: To standardize the appeal periods
certiorari (petition only questions of law provided in the ROC and to afford litigants fair
for review on are raised/involved opportunity to appeal their cases, the court
deems it practical to allow a fresh period of 15
days within which to file the notice of appeal
(NOA) in the RTC, counted from receipt of the
PERFECTION OF APPEAL order dismissing a MNT/MFR.
• Perfection of an appeal in the manner and
within the period laid down by law is
mandatory and jurisdictional. [Balgami v. CA
(2004)] 41]
• Rationale: Appeal is merely a statutory
privilege, and may be exercised only in the APPLICABILITY [Rule 41, Sec. 1]
manner and in accordance with the • Appeal of judgment or final order that
provisions of the law. It is not a natural completely disposes of either:
right nor a part of due process. 1) The case;
• Effect of failure to perfect appeal: 2) A particular matter in the case, when
• Defeats a party’s right to appeal. declared by ROC to be appealable.
• Precludes appellate court from acquiring • Not appealable under Rule 41:
jurisdiction. 1) Order denying MNT/MFR;
• Failure to pay the appellate court docket fee 2) Order denying PFR or any similar motion
within the reglementary period confers only a seeking relief from judgment;
discretionary (not mandatory) power to dismiss 3) Interlocutory order;
the proposed appeal. Such discretion should 4) Order disallowing/dismissing appeal;
consider all attendant circumstances and must 5) Order denying motion to set aside
be exercised with a view to substantial justice. judgment buy consent/confession/
[Camposagrado v. Camposagrado (2005)] compromise on ground of fraud/mistake/
duress or any other vitiation of consent;
• Appellate court has no jurisdiction to review 7) While the case is pending, judgment or
a judgment which is immediately final and final order:
executory by express provision of law. a) For/against one or more of several
[Republic v. Bermudez-Lorino (2005)] parties;
• Rationale: Appeal is merely a privilege b) In separate claims, counterclaims,
conferred by law upon the litigants. cross-claims, 3rd-party complaints.
• A party cannot change the theory on appeal. • Exception: If court allows appeal.
Only issues pleaded in the lower court and 8) Order dismissing an action without
properly raised may be resolved by the prejudice.
appellate court. [Medina v. CA (1992)] • In the 8 cases not appealable under Rule 41,
• However, issues which are inferred from the aggrieved party may file a special civil
or necessarily connected with the issue action under Rule 65.
properly raised and pleaded may be
resolved by the appellate court. [Espina INTERLOCUTORY ORDER
v. CA (1992)] • Definition: If it does not dispose of the case
but leaves something else to be done by the TC
on the merits of the case. [Investments, Inc. v.
CA (1987)]
• For purposes of appeal, an order is final if it
disposes of the entire case.
• An order for partial summary judgment is an
interlocutory order which cannot be appealed
from. The TC had not yet rendered a complete

100% UP LAW UP BAROPS 2008 Page 179 of 227


final judgment. [GSIS v. Philippine Village Hotel 12) Department of Agrarian Reform (DAR under
(2004)] RA 6657)
13) Government Service Insurance System
• Civil cases which admit of multiple appeals: 14) Employees Compensation Commission
1) Judgment in an action for recovery or for (ECC);
partition of property is separately 15) Agricultural Inventions Board (AIB);
appealable from the proceedings on that 16) Insurance Commission;
part of the judgment wherein accounting 17) Philippine Atomic Energy Commission
for receipts from the property is ordered as (PAEC);
a primary or incidental relief. When such 18) Board of Investments (BOI);
accounting is submitted and either 19) Construction Industry Arbitration
approved or rejected by the TC, another Commission;
appeal lies therefrom. 20) voluntary arbitrators authorized by law.
2) Special civil actions:
a) Expropriation; (Rule 67) • Rule 43 shall not apply to judgments or final
b) Judicial partition; (Rule 69) orders issued under the Labor Code. [Rule 43,
c) Judicial foreclosure of mortgage; (Rule Sec. 2]
68) • NLRC judgments and final orders or
• Special proceedings also admit of multiple resolutions are now reviewable, in the first
appeals. instance, by the CA on certiorari under Rule
• The order of dismissal due to failure to 65, but those of the ECC should be brought
prosecute is appealable by NOA under Rule 41. to the CA through a petition for review
[Ko v. PNB (2006)] But an order of dismissal under this Rule. Also, appeals from the
without prejudice is not appealable under Rule Office of the Ombudsman in administrative
41. [Philexport v. PI (2004)] disciplinary cases are now covered by this
rule. [Fabian v. Desierto (1998)]
• RA 9282: Decisions of the CTA are now
B. PETITION FOR REVIEW appealable to the SC by petition for review on
certiorari under Rule 45.
• Resolution of DOJ Secretary is not appealable
under Rule 43. Recourse should be to the
PETITION FOR REVIEW FROM RTC TO CA President, instead of the CA, under the
[Rule 42] established principle of exhaustion of
administrative remedies. [Orosa v. Roa (2006)]
• Appeal of RTC decision rendered in exercise of REMEDIES – If an appeal/remedy obtains
appellate jurisdiction. [Rule 42, Sec. 1] or is available within the administrative
machinery, this should be resorted to
CNFS before resort can be made to the courts.
• Petitioner in a petition for review in CA/SC • Under Rule 43, Sec. 4 the petition should be
must submit a CNFS with the petition. filed within 15 days from: [Villorente v. Laiya
However, this rule is relaxed where there is (2005)]
need to conduct a review. In those instances, 1) Notice of the final order;
petitioner may comply with the requirement 2) The date of its last publication, if
after he has filed the petitions. [Rule 42, Sec. publication is required by law for its
1] effectivity;
3) The denial of the petitioner’s MFR duly filed
FROM QJA TO CA according to the governing law of the court
[Rule 43] or agency a quo.
• Under Rule 43, there is no need to implead the
APPLICABILITY lower court or agency which rendered the
• Appeals from judgments or final orders of the assailed decision. [Basmayor v. Atencio
CTA and from awards, judgments, final orders (2005)]
or resolutions of or authorized by any quasi- • Submission of the duplicate original or certified
judicial agency (QJA) in the exercise of its true copy of judgment/order/resolution/ruling
quasi-judicial functions: [Rule 43, Sec. 1] subject of a petition for certiorari is essential to
1) Civil Service Commission (CSC); determine WON the court/body/tribunal which
2) Central Board of Assessment Appeals rendered the same indeed committed
(CBAA); GAD. Either a legible duplicate original or
3) Securities and Exchange Commission certified true copy thereof shall be
(SEC); submitted. If what is submitted is a copy, then
4) Office of the President (OP); it is required that the same is certified by the
5) Land Registration Authority (LRA); proper officer of the
6) Social Security Commission (SSC); court/tribunal/agency/office involved. This is
7) Civil Aeronautics Board (CAB); to assure that such copy is a faithful
8) Bureau of Patents, Trademarks and reproduction of the
Technology Transfer (BPTTT); judgment/order/resolution/ruling subject of the
9) National Electrification Administration petition. [Coca-cola v. Cabalo (2006)]
10) Energy Regulatory Board (ERB);
11) National Telecommunications Commission

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C. APPEAL BY CERTIORARI • In 18 copies, with the original copy

intended for the court being indicated as
TO SC such by the petitioner. [Rule 45, Sec. 4]
• Petition shall raise only questions of law which
must be distinctly set forth. [Rule 45, Sec. 1]
• Where only questions of law are • Contents of petition: [Rule 45, Sec. 4]
raised/involved. [Rule 41, Sec. 2(c)] 1) Full name of the appealing party
• Appeal by certiorari from a judgment or final (petitioner) and the adverse party
order or resolution of CA/Sandiganbayan/RTC (respondent).
or other courts whenever authorized by law. • Without impleading the lower court or
[Rule 45, Sec. 1] judges as petitioners/respondents.
• No appeal may be taken from: 2) Material dates:
a) When notice of the judgment or final
order or resolution subject thereof was
1. An order denying a petition for relief or any received;
similar motion seeking relief from judgment; b) When a MNT/MFR (if any) was filed and
when notice of the denial thereof was
2. An interlocutory order; received.
3. An order disallowing or dismissing an 3) Concise statement of the matters involved,
appeal; and the reasons/arguments relied on for
the allowance of the petition;
4. An order denying a motion to set aside a 4) A clearly legible duplicate original, or a
judgment by consent, confession or certified true copy of the judgment or final
compromise on the ground of fraud, mistake or order or resolution certified by the clerk of
court of the court a quo and the requisite
duress, or any other ground vitiating consent;
number of plain copies thereof, and such
5. An order of execution; material portions of the record as would
6. A judgment or final order for or against one support the petition;
5) CNFS.
or more of several parties or in separate
• File within 15 days from notice of the judgment
claims, counterclaims, cross-claims and third- or final order or resolution appealed from, or of
party complaints, while the main case is the denial of the petitioner's MNT/MFR filed in
due time after notice of the judgment. [Rule
pending, unless the court allows an appeal
45, Sec. 2]
therefrom; and • On motion duly filed and served, with full
7. An order dismissing an action without payment of the docket and other lawful fees
prejudice. and the deposit for costs before the expiration
of the reglementary period, the SC may for
justifiable reasons grant an extension of 30
• In any of the foregoing circumstances, the days only within which to file the petition.
aggrieved party may file an appropriate special
civil action as provided in Rule 65. PAYMENT OF DOCKET AND OTHER LAWFUL FEES
• Unless he has theretofore done so, the
petitioner shall pay the docket and other lawful
• A party desiring to appeal by certiorari from a fees to the SC clerk of court and deposit P500
judgment, final order or resolution of the Court for costs at the time of the filing of the
petition. [Rule 45, Sec. 3]
of Appeals, the Sandiganbayan, the Court of
Tax Appeals, the Regional Trial Court or other PROOF OF SERVICE OF PETITION
courts, whenever authorized by law, may file • Proof of service of a copy on the lower court
and on the adverse party shall be submitted
with the Supreme Court a verified petition for
together with the petition. [Rule 45, Sec. 3]
review on certiorari. The petition may include
an application for a writ of preliminary DISMISSAL/DENIAL OF PETITION [Rule 45, Sec. 5]
• Failure of the petitioner to comply with any of
injunction or other provisional remedies and
the requirements regarding the payment of the
shall raise only questions of law, which must be docket and other lawful fees, deposit for costs,
distinctly set forth. The petitioner may seek the proof of service of the petition, and the
contents of and the documents which should
same provisional remedies by verified motion
accompany the petition, shall be sufficient
filed in the same action or proceeding at any ground for the dismissal thereof.
time during its pendency. • SC may on its own initiative deny the petition
on the ground that:
1) The appeal is without merit;
APPLICABILITY [Rule 45, Sec. 9] 2) The appeal is prosecuted manifestly for
• Applicable to both civil and criminal cases. delay;
• Exception: Criminal cases where the 3) The questions raised therein are too
penalty imposed is death, reclusion unsubstantial to require consideration.
perpetua or life imprisonment.
FILING OF PETITION • A review is not a matter of right, but of sound
• File with the SC a verified petition for review on judicial discretion, and will be granted only
certiorari. [Rule 45, Sec. 1] when there are special and important reasons

100% UP LAW UP BAROPS 2008 Page 181 of 227


• The following, while neither controlling nor fully considered, would justify a different
measuring the court's discretion, indicate the conclusion. [Abellana v. Dosdos
character of reasons which will be considered: (1965)]
a) When the court a quo has decided a 8) CA’s findings of fact are contrary to
question of substance, not theretofore those of the TC, or are mere
determined by the SC, or has decided it in conclusions without citation of specific
a way probably not in accord with law or evidence, or where the facts set forth
with the applicable decisions of the SC; or by the petitioner are not disputed by
b) When the court a quo has so far departed the respondent, or where the findings
from the accepted and usual course of of fact of the CA are premised on
judicial proceedings, or so far sanctioned absence of evidence but are
such departure by a lower court, as to call contradicted by the evidence of record.
for an exercise of the power of supervision. [Manlapaz v. CA (1987)]

MAY REQUIRE PLEADINGS AND DOCUMENTS [Rule • Rule 65 cannot cure the failure to appeal thru
45, Sec. 7] Rule 45. [Perez-Rosario v. CA (2006)]
• For purposes of determining WON the petition
should be dismissed or denied pursuant to Rule
45, Sec. 5, or where the petition is given due D. PROCEDURE IN CA
course under Sec. 8 hereof, the SC may
require/allow the filing of
pleadings/briefs/memoranda/documents as it
may deem necessary, and impose the ORDINARY APPEALED CASES [Rule 44]
sanctions in case of non-filing or unauthorized
filing of such pleadings and documents or non- APPLICABILITY [Rule 44, Sec. 1]
compliance with the conditions therefor. • Cases appealed under R41.


CASE TITLE [Rule 44, Sec. 1]
45, Sec. 8]
• Same as that in the court of origin; but
• If the petition is given due course, the SC may
appealing party shall be further referred to as
require the elevation of the complete record of
appellant and adverse party as appellee.
the case or specified parts thereof within 15
days from notice.
QUESTION OF LAW [Agote v. Lorenzo (2005)] • The counsel and guardians ad litem of the
• A question of law does not involve an parties in the court of origin shall be
examination of the probative value of the respectively considered as their counsel and
evidence presented by any of the litigants. guardians ad litem in the CA.
• There is a question of law in a given case when • When others appear or are appointed, notice
the doubt or difference arises as to what the thereof shall be served immediately on the
law is on a certain state of facts; there is a adverse party and filed with the court.
question of fact when the doubt or difference
arises as to the truth or the falsehood of the ORDER OF TRANSMITTAL OF RECORD [Rule 44,
facts alleged. Sec. 3]
• General rule: CA’s findings of fact are final • If the original record or the record on appeal is
and conclusive and cannot be reviewed on not transmitted to CA within 30 days after the
appeal to the SC, [Amigo v. Teves] provided perfection of the appeal, either party may file a
they are borne out by the record or are based motion with the TC, with notice to the other,
on substantial evidence. [Alsua-Betts v. CA for the transmittal of such record or ROA.
• Exception: CA’s findings of fact may be CASE DOCKETING [Rule 44, Sec. 4]
reviewed by the SC on appeal by certiorari • Upon receiving the original record or ROA and
when: the accompanying documents and exhibits
1) Conclusion is a finding grounded transmitted by the lower court, as well as the
entirely on speculations/surmises/ proof of payment of the docket and other lawful
conjectures. [Joaquin v. Navarro] fees, the clerk of the CA shall docket the case
2) Inference made is manifestly and notify the parties thereof.
mistaken/absurd/impossible. [Luna v. • Within 10 days from receipt of said notice, the
Linatok] appellant, in appeals by ROA, shall file with the
3) There is GAD in the appreciation of clerk of court 7 clearly legible copies of the
facts. [Buyco v. People] approved ROA, together with the proof of
4) Judgment is based on a service of 2 copies thereof upon the appellee.
misapprehension of facts. [De la Cruz • Any unauthorized alteration/omission/addition
v. Sosing] in the approved ROA shall be a ground for
5) CA’s findings of fact are conflicting. dismissal of the appeal.
[Casica v. Villaseca]
6) CA, in making its findings, went beyond RECORD COMPLETION [Rule 44, Sec. 5]
the issues of the case and the same is • Where the record of the docketed case is
contrary to the admissions of both incomplete, the clerk of the CA shall so inform
appellant and appellee. [Nakpil and said court and recommend to it measures
Sons v. CA (1986)] necessary to complete the record. It shall be
7) CA manifestly overlooked certain the duty of said court to take appropriate
relevant facts not disputed by the action towards the completion of the record
parties and which, if properly within the shortest possible time.

100% UP LAW UP BAROPS 2008 Page 182 of 227


• Where the completion of the record could not • Within 45 days from receipt of appellant's brief,
be accomplished within a sufficient period the appellee shall file with the court 7 copies of
allotted for said purpose due to insuperable or his legibly typewritten/mimeographed/printed
extremely difficult causes, the court may brief, with proof of service of 2 copies thereof
declare that the record and its accompanying upon the appellant.
transcripts and exhibits so far available are • Contents of appellee’s brief: [Rule 44, Sec. 14]
sufficient to decide the issues raised in the a) Subject index.
appeal, and shall issue an order explaining the b) STATEMENT OF FACTS – Statement that
reasons for such declaration. [Rule 44, Sec. 6] appellee accepts the statement of facts in
the appellant’s brief; or COUNTER-
APPELLANT’S BRIEF [Rule 44, Sec. 7] STATEMENT OF FACTS – Points out the
• It shall be the duty of the appellant to file with insufficiencies/inaccuracies appellee
the court, within 45 days from receipt of the believes to exist in the appellant’s
notice of the clerk that all the evidence are statement of facts, with references to the
attached to the record, 7 copies of his legibly supporting pages of the record. Matters in
typewritten/mimeographed/printed brief, with the appellant’s statement of facts should
proof of service of 2 copies thereof upon the not be repeated.
appellee. c) ARGUMENT – Appellee’s arguments on
• Contents of appellant’s brief: [Rule 44, Sec. each assignment of error, with page
13] references to the record. The authorities
a) SUBJECT INDEX – Digest of the relied upon shall be cited by the page of
arguments and page references, and a the report at which the case begins and the
tables of: (1) cases alphabetically page of the report on which the citation is
arranged; and (2) books and statutes cited, found.
with references to the pages where they
are cited. REPLY BRIEF [Rule 44, Sec. 9]
b) ASSIGNMENT OF ERRORS – Errors urged • Within 20 days from receipt of appellee's brief,
separately, distinctly and concisely; stated the appellant may file a reply brief answering
without repetition and numbered points in appellee's brief not already covered in
consecutively. his main brief.
• WON appellant has filed a MNT in the
court below, he may include in his MEMORANDA IN SPECIAL CASES [Rule 44, Sec. 10]
assignment of errors any question of • In certiorari, prohibition, mandamus, quo
law/fact that has been raised in the warranto and habeas corpus cases, the parties
court below and which is within the shall be file (in lieu of briefs) their respective
issues framed by the parties. [Rule 44, memoranda within a non-extendible period of
Sec. 15] 30 days from receipt of the notice issued by the
c) STATEMENT OF THE CASE – Clear and clerk that all the evidence is already attached
concise statement of the nature of the to the record.
action, a summary of the proceedings, the • The failure of the appellant to file his
appealed court rulings and orders, the memorandum within the period therefor may
nature of the judgment and any other be a ground for dismissal of the appeal.
matters necessary to an understanding of
the nature of the controversy, with page SEVERAL/PLURALITY OF
references to the record. APPELLANTS/APPELLEES/COUNSELS [Rule 44, Sec.
d) STATEMENT OF FACTS – Clear and 11]
concise narrative statement of the facts • Where there are several appellants/appellees,
admitted by both parties and of those in each counsel representing one or more but not
controversy, together with the substance of all of them shall be served with only one copy
the related proof, in sufficient detail to of the briefs.
make it clearly intelligible and with page • When several counsel represent one appellant
references to the record. or appellee, copies of the brief may be served
e) ISSUES – Clear and concise statement of upon any of them.
issues of fact/law submitted to the court for
f) ARGUMENT – Appellant’s arguments on Sec. 12]
each assignment of error, with page • Extension of time for the filing of briefs will not
references to the record. The authorities be allowed, except for good and sufficient
relied upon shall be cited by the page of cause, and only if the motion for extension is
the report at which the case begins and the filed before the expiration of the time sought to
page of the report on which the citation is be extended.
g) RELIEF – Specification of the BRIEF [De Liano v. CA (2001)]
order/judgment which the appellant seeks. • Purpose: To present to the court in concise
In cases not brought up by record on form the points and questions in controversy,
appeal, the appellant’s brief shall contain and by fair argument on the facts and law of
(as an appendix) a copy of the judgment or the case to assist the court in arriving at a just
final order appealed from. and proper conclusion.
h) Attachment: Certified true copy of the • The brief should be so prepared as to minimize
decision or final order appealed from. [Rule the labor of the court in the examination of the
124, Sec. 7] record upon which the appeal is heard and
APPELLEE’S BRIEF [Rule 44, Sec. 8]

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• Failure to comply with required contents of P500 for costs at the time of the filing of the
appellant’s brief is cause for dismissal of the petition.
• The failure of the petitioner to comply with any
ORIGINAL CASES [Rule 46] of the foregoing requirements shall be sufficient
ground for the dismissal of the petition. [Rule
APPLICABILITY [Rule 46, Sec. 2] 46, Sec. 3]
• Original actions for certiorari, prohibition,
mandamus and quo warranto.
• Except as otherwise provided, the actions for JURISDICTION OVER RESPONDENT’S PERSON
annulment of judgment shall be governed by [Rule 46, Sec. 4]
Rule 47, for certiorari, prohibition and 1) By the service on him of its order/resolution
mandamus by Rule 65, and for quo warranto indicating its initial action on the petition;
by Rule 66. 2) By his voluntary submission to such
• Rule 46 primarily governs original actions for jurisdiction.
certiorari filed in, CA but Rule 65 generally
serves to supplement the same. Rules 46 and COURT ACTION [Rule 46, Sec. 5]
65 co-exist with each other and should be • The court may either:
construed so as to give effect to every 1) Dismiss the petition outright with specific
provision of both rules. Under Rule 46, mere reasons for such dismissal;
duplicate originals of the assailed orders are 2) Require the respondent to file a comment
allowed. [Republic v. Carmel (2002)] on the same within 10 days from notice.
• Only pleadings required by the court shall be
CASE TITLE [Rule 46, Sec. 1] allowed. All other pleadings and papers may be
• In all cases originally filed in the CA, the party filed only with leave of court.
instituting the action shall be called the
petitioner and the opposing party the DETERMINATION OF FACTUAL ISSUES [Rule 46,
respondent. Sec. 6]
• Whenever necessary to resolve factual issues,
CONTENTS OF PETITION [Rule 46, Sec. 3] the court may either:
1) Full names and actual addresses of all the 1) Conduct hearings thereon;
petitioners and respondents; 2) Delegate the reception of the evidence on
2) Concise statement of the matters involved; such issues to any of its members or to an
3) Factual background of the case; appropriate court/agency/office.
4) Grounds relied upon for the relief prayed for.
FAILURE TO COMMENT [Rule 46, Sec. 7]
FILING OF PETITION [Rule 46, Sec. 3] • When no comment is filed by any of the
• It shall be filed in 7 clearly legible copies respondents, the case may be decided on the
together with proof of service thereof on the basis of the record, without prejudice to any
respondent with the original copy intended for disciplinary action which the court may take
the court indicated as such by the petitioner, against the disobedient party.
and shall be accompanied by a clearly legible
duplicate original or certified true copy of the PRELIMINARY CONFERENCE
judgment/order/resolution/ruling subject • Matters to be taken up: At any time during the
thereof, such material portions of the record as pendency of a case, the court may call the
are referred to therein, and other documents parties and their counsel to a preliminary
relevant/pertinent thereto. The certification conference: [Rule 48, Sec. 1]
shall be accomplished by the proper clerk of 1) To consider the possibility of an amicable
court or by the proper officer of the settlement, except when the case is not
court/tribunal/agency/office involved. The other allowed by law to be compromised;
requisite number of copies of the petition shall 2) To define/simplify/clarify the issues for
be accompanied by clearly legible plain copies determination;
of all documents attached to the original. 3) To formulate stipulations of facts and
• The petitioner shall also submit together with admissions of documentary exhibits, limit
the petition a sworn certification that he has the number of witnesses to be presented in
not theretofore commenced any other action cases falling within the original jurisdiction
involving the same issues in the SC/CA or of the court, or those within its appellate
different divisions thereof or any other jurisdiction where a MNT is granted on the
tribunal/agency. If there is such other ground of newly discovered evidence;
action/proceeding, he must state the status of 4) To take up such other matters which may
the same; and if he should thereafter learn that aid the court in the prompt disposition of
a similar action/proceeding has been filed or is the case.
pending before the SC/CA or different divisions
thereof or any other tribunal/agency, he
undertakes to promptly inform the aforesaid
courts and other tribunal/agency thereof within
5 days therefrom.


Sec. 3]

• The petitioner shall pay the docket and other

lawful fees to the clerk of court and deposit

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• The proceedings at the preliminary conference the tenets of justice and fair play, having in
shall be recorded. Upon the conclusion thereof, mind the circumstances obtaining in each case,
a resolution shall be issued embodying all: (1) the presumption is that it has been so
the actions taken therein, (2) the stipulations exercised. [PNB v. Philippine Milling (1969)]
and admissions made, and (3) the issues • Failure to file appellant’s brief within the
defined. [Rule 48, Sec. 2] reglementary period need not necessarily cause
• The resolution in the preliminary conference dismissal of appeal where the same was due to
shall control the subsequent proceedings in the force majeure. [Padasas v. CA (1974)]
case. [Rule 48, Sec. 3]
• Exception: DISMISSAL OF IMPROPER APPEAL [Rule 50, Sec. 2]
1) Modifications may be made to prevent • An appeal under Rule 41 taken from the RTC to
manifest injustice; the CA raising only questions of law shall be
2) Within 5 days from notice thereof, any dismissed; issues purely of law not being
party may satisfactorily show valid reviewable by said court. Similarly, an appeal
cause why the resolution should not be by NOA instead of by petition for review from
followed. the appellate judgment of a RTC shall be
ORAL ARGUMENT • An appeal erroneously taken to the CA shall not
• The court may hear the parties in oral be transferred to the appropriate court but
argument on the merits of a case or on any shall be dismissed outright.
material incident in connection therewith. The • It is true that Circular No. 2-90 now prohibits
oral argument shall be limited to such matters the transfer of appeals erroneously taken to the
as the court may specify in its order/resolution. SC/CA to whichever of these tribunals has
[Rule 49, Sec. 1] appropriate appellate jurisdiction. But where SC
• Unless authorized by the court, only one believes that there are factual issues which
counsel may argue for a party. The duration must be resolved, it may, in the exercise of its
allowed for each party, the sequence of the sound discretion and considering the attendant
argumentation, and all other related matters circumstances, either itself take cognizance of
shall be as directed by the court. [Rule 49, Sec. and decide such issues or refer them to CA for
2] determination. [Atlas Consolidated v. CA
• Motions shall not be set for hearing. Unless the (1991)]
court otherwise directs, no hearing or oral • Nonpayment of the appellate court docket and
argument shall be allowed in support of other lawful fees within the reglementary
motions. The adverse party may file objections period as provided under Rule 41, Sec. 4 is a
to the motion within 5 days from service. Upon ground for the dismissal of an appeal under
the expiration of the 5 days, the motion shall Rule 50, Sec. 1(c). SC has invariably sustained
be deemed submitted for resolution. [Rule 49, the CA’s dismissal on technical grounds under
Sec. 3] the aforequoted provision unless considerations
of equity and substantial justice present cogent
DISMISSAL OF APPEAL reasons to hold otherwise. True, the rules may
• Grounds: [Rule 50, Sec. 1] be relaxed but only for persuasive and weighty
1) Failure of the record on appeal to show on reasons, to relieve a litigant of an injustice
its face that the appeal was taken within commensurate with his failure to comply with
the period fixed by ROC; the prescribed procedure. [Cu-unjieng v. CA
2) Failure to file the NOA/ROA within the (2006)]
period prescribed by ROC;
3) Failure of the appellant to pay the docket
and other lawful fees under Rule 41, Sec.
• An appeal may be withdrawn as of right at any
time before the filing of the appellee's brief.
4) Unauthorized alterations/omissions/
Thereafter, the withdrawal may be allowed in
additions in the approved ROA under Rule
the discretion of the court.
44, Sec. 4;
5) Failure of the appellant to serve and file the
required number of copies of his brief or
• General rule: In ordinary appeals, execution
memorandum within the time provided by
is stayed.
the ROC;
• Exception:
6) Absence of specific assignment of errors in
1) Decision in forcible entry and unlawful
the appellant's brief, or of page references
to the record as required in Rule 44, Sec.
• Exception to exception: If
13, paragraphs (a), (c), (d) and (f);
appellant stays immediate
7) Failure of the appellant to take the
execution by filing a NOA,
necessary steps for the
supersedeas bond and depositing
correction/completion of the record within
in court a monthly rental or
the time limited by the court in its order;
compensation for the occupation as
8) Failure of the appellant to appear at the
fixed by the court which rendered
preliminary conference under Rule 48 or to
the decision. [Rule 70, Sec. 19]
comply with court
2) Decision of the MeTC/MTC/MCTC or the
orders/circulars/directives without
RTC where execution pending appeal
justifiable cause;
has been granted by the court of origin
9) The fact that the order/judgment appealed
or in a proper case by the appellate
from is not appealable.
court upon good reasons to be stated
• CA has discretion to dismiss or not to dismiss
in the order. [Rule 39, Sec. 2]
appeal. Although said discretion must be a
sound one, to be exercised in accordance with

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3) Decision of the RTC rendered in the from those set forth in the
exercise of its appellate jurisdiction on decision/order/resolution appealed from. [Sec.
cases tried and decided by the court of 40, BP 129; Rule 51, Sec. 5]
origin under Summary Procedure. • HARMLESS ERROR RULE — No error in the
[Sec. 21, Revised Rules on Summary admission/exclusion of evidence and no
Procedure] error/defect in any ruling/order or in anything
4) Decision of QJA under the Rule 43, done/omitted by the TC or by any of the parties
Sec. 12, unless otherwise provided by is ground for granting a new trial or for setting
the CA; aside, modifying or otherwise disturbing a
5) Decision in cases of injunction, judgment/order, unless refusal to take such
receivership, support and accounting. action appears to the court inconsistent with
[Rule 39, Sec. 4] substantial justice. The court at every stage of
the proceeding must disregard any error/defect
WHEN CASE IS SUBMITTED FOR JUDGMENT [Rule which does not affect the substantial rights of
51, Sec. 1] the parties. [Rule 51, Sec. 6]
A. In ordinary appeals. • In all actions/proceedings, an appealed
1) Where no hearing on the merits of the main judgment may be affirmed as to some of the
case is held, upon the filing of the last appellants and reversed as to others, and the
pleading/brief/memorandum required by case shall thereafter be proceeded with as if
the ROC or by the court itself, or the separate actions had been begun and
expiration of the period for its filing. prosecuted. Execution of the judgment of
2) Where such a hearing is held, upon its affirmance may be had accordingly, and costs
termination or upon the filing of the last may be adjudged in such cases, as the court
pleading/memorandum required/permitted shall deem proper. [Rule 51, Sec. 7]
to be filed by the court, or the expiration of • No error which does not affect the jurisdiction
the period for its filing. over the subject matter or the validity of the
B. In original actions and petitions for review.— judgment appealed from or the proceedings
1) Where no comment is filed, upon the therein will be considered unless stated in the
expiration of the period to comment. assignment of errors, or closely related to or
2) Where no hearing is held, upon the filing of dependent on an assigned error and properly
the last pleading required/permitted to be argued in the brief. [Rule 51, Sec. 8]
filed by the court, or the expiration of the • Exception: The court may pass upon plain
period for its filing. errors and clerical errors.
3) Where a hearing on the merits of the main • After the judgment or final resolution and and
case is held, upon its termination or upon dissenting/separate opinions are signed by the
the filing of the last pleading/memorandum Justices taking part, they shall be delivered for
required/permitted to be filed by the court, filing to the clerk. The clerk shall indicate
or the expiration of the period for its filing. thereon the date of promulgation and cause
true copies thereof to be served upon the
JUDGMENT parties or their counsel. [Rule 51, Sec. 9]
• It is rendered by the members of the court who
participated in the deliberation on the merits of ENTRY OF JUDGMENT AND FINAL RESOLUTIONS
the case before its assignment to a member for [Rule 51, Sec. 10]
the writing of the decision. [Rule 51, Sec. 2] • If no appeal/MNT/MFR is filed within the
• The participation of all 3 Justices of a division reglementary period, the judgment or final
shall be necessary at the deliberation. The resolution shall be entered by the clerk in the
unanimous vote of the 3 Justices shall be book of entries of judgments.
required for the pronouncement of a judgment • The date when the judgment or final resolution
or final resolution. If the 3 Justices do not becomes executory shall be deemed as the
reach a unanimous vote, the clerk shall enter date of its entry.
the votes of the dissenting Justices in the • The record shall contain the dispositive part of
record. Thereafter, the Chairman of the the judgment or final resolution and shall be
division shall refer the case (together with the signed by the clerk, with a certificate that such
minutes of the deliberation) to the Presiding judgment or final resolution has become final
Justice who shall designate 2 Justices chosen and executory.
by raffle from among all the other members of
the court to sit temporarily with them, forming EXECUTION OF JUDGMENT [Rule 51, Sec. 11]
a special division of 5 Justices. The • Motion for execution of the judgment or final
participation of all the 5 members of the special order or resolution may only be filed in the
division shall be necessary for the deliberation proper court after its entry.
and the concurrence of a majority of such • Exception: If the judgment or final order
division shall be required for the or resolution (or a portion thereof) is
pronouncement of a judgment or final ordered to be immediately executory,
resolution. [Rule 51, Sec. 3] • In original actions in the CA, its writ of
• The CA, in the exercise of its appellate execution shall be accompanied by a certified
jurisdiction, may affirm/reverse/modify the true copy of the entry of judgment or final
judgment or final order appealed from, and resolution and addressed to any appropriate
may direct a new trial or further proceedings to officer for its enforcement.
be had. [Rule 51, Sec. 4] • In appealed cases, where the motion for
• Every decision or final resolution of the CA in execution pending appeal is filed in the CA at a
appealed cases shall clearly and distinctly state time that it is in possession of the original
the findings of fact and the conclusions of law record or ROA, the resolution granting such
on which it is based, which may be contained in motion shall be transmitted to the lower court
the decision or final resolution itself, or adopted from which the case originated, together with a

100% UP LAW UP BAROPS 2008 Page 186 of 227


certified true copy of the judgment or final 1) Certiorari;

order to be executed, with a directive for such 2) Prohibition;
court of origin to issue the proper writ for its 3) Mandamus;
enforcement. 4) Quo warranto;
5) Habeas corpus;
MFR 6) Disciplinary proceedings against members
• A party may file a MFR of a judgment or final of the judiciary and attorneys;
resolution within 15 days from notice thereof, 7) Cases affecting ambassadors, other public
with proof of service on the adverse party. ministers and consuls.
[Rule 52, Sec. 1]
• No 2nd MFR of a judgment or final resolution APPLICABLE RULES [Rule 56, Sec. 2]
by the same party shall be entertained. [Rule 1) The procedure in original cases for certiorari,
52, Sec. 2] prohibition, mandamus, quo warranto and
• A MFR in the CA shall be resolved within 90 habeas corpus shall be in accordance with the
days from the date when the court declares it applicable provisions of the Constitution, laws,
submitted for resolution. [Rule 52, Sec. 3] and Rules 46, 48, 49, 51, 52 and this Rule.
• Pendency of a MFR filed on time and by the • All references in said Rules to the CA shall
proper party shall stay the execution of the be understood to also apply to the SC;
judgment or final resolution sought to be • The portions of said Rules dealing strictly
reconsidered, unless the court directs otherwise with and specifically intended for appealed
for good reasons. [Rule 52, Sec. 4] cases in the CA shall not be applicable;
NEW TRIAL • 18 clearly legible copies of the petition shall
• Any time after the appeal from the lower court be filed, together with proof of service on
has been perfected and before the CA loses all adverse parties.
jurisdiction over the case, a party may file a 2) The proceedings for disciplinary action against
MNT on the ground of newly discovered members of the judiciary shall be governed by
evidence which could not have been discovered the laws and Rules prescribed therefor, and
prior to the trial in the court below by the those against attorneys by Rule 139-B, as
exercise of due diligence and which is of such a amended.
character as would probably change the result.
The MNT shall be accompanied by affidavits APPEALED CASES [Rule 56.B]
showing the facts constituting the grounds
therefor and the newly discovered evidence. MODE OF APPEAL [Rule 56, Sec. 3]
[Rule 53, Sec. 1] • Only by a petition for review on certiorari.
• The CA shall consider the new evidence • Exception: Criminal cases where the
together with that adduced at the trial below, penalty imposed is death, reclusion
and may: [Rule 53, Sec. 2] perpetua or life imprisonment.
1) Grant/refuse a new trial;
2) Make such order as to the taking of further PROCEDURE [Rule 56, Sec. 4]
testimony, either orally in court or by • Governed by and disposed of in accordance
depositions; with the applicable provisions of the
3) Render such other judgment as ought to be Constitution, laws, Rules 45, 48, Sec. 1, 2 and
rendered upon such terms as it may deem 5 to 11 of Rule 51, 52 and this Rule.
• The CA shall resolve a MNT within 90 days from GROUNDS FOR DISMISSAL OF APPEAL [Rule 56,
the date when the court declares it submitted Sec. 5]
for resolution. [Rule 53, Sec. 3] 1) Failure to take the appeal within the
• Unless the court otherwise directs, the reglementary period;
procedure in the new trial shall be the same as 2) Lack of merit in the petition;
that granted by a RTC. [Rule 53, Sec. 4] 3) Failure to pay the docket and other lawful fees
or to make a deposit for costs;
PUBLICATION OF JUDGMENTS AND FINAL 4) Failure to comply with the requirements
RESOLUTIONS regarding proof of service and contents of and
• Judgments and final resolutions of the CA shall the documents which should accompany the
be published in the OG and in the Reports petition;
officially authorized by the court in the 5) Failure to comply with any SC
language in which they have been originally circular/directive/order without justifiable
written, together with the syllabi therefor cause;
prepared by the reporter in consultation with 6) Error in the choice/mode of appeal;
the writers thereof. Memoranda of all other 7) The fact that the case is not appealable to SC.
judgments and final resolutions not so
published shall be made by the reporter and IMPROPER APPEAL [Rule 56, Sec. 6]
published in the OG and the authorized reports. • An appeal taken to the SC by NOA shall be
[Rule 55, Sec. 1] dismissed.
• Exception: Rule 122, Sec. 3 regarding
appeals in criminal cases where the penalty
E. PROCEDURE IN SC imposed is death, reclusion perpetua or life
• 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 WON
issues of fact are involved shall be final.
• Only petitions for: [Rule 56, Sec. 1]

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EQUALLY DIVIDED SC [Rule 56, Sec. 7]

• 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/order
appealed from shall stand affirmed;
3) On all incidental matters, the
petition/motion shall be denied.
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 two ways 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.



• 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):


action to enjoin judgment is filed and a
preliminary injunction is prayed for and
granted (Rule 38.5);
2) When the judgment turns out to be

100% UP LAW UP BAROPS 2008 Page 188 of 227


since as a matter of law, such 5) such other judgments as shall now or

judgment CANNOT BE FINAL; may hereafter be declared to be
3) When the judgment has been NOVATED immediately executory
4) When SUBSEQUENT FACTS AND Judgments in these actions shall be
CIRCUMSTANCES transpire as to render enforceable after their rendition and shall
such execution unjust or impossible not, be stayed by an appeal taken
there has been a change in the BY THE TRIAL COURT. On appeal
situation of the parties which makes therefrom, the appellate court in its
execution INEQUITABLE. discretion may make an order suspending,
6) When the judgment becomes modifying, restoring or granting the
DORMANT, the 5-year period under injunction, receivership, accounting, or
Rule39.6 having expired without the award of support.
judgment having been revived.
• General rule: According to Rule 39, Section 6:
• General rule: An ex parte motion for the A final and executory judgment or order may
issuance of the writ of execution would suffice be executed on motion within five (5) years
since the trial court may take judicial notice of from the date of its entry. After the lapse of
the record of the case to determine the such time, and before it is barred by the
propriety of the issuance thereof. statute of limitations, a judgment may be
• Exception: However when the losing party enforced by action. The revived judgment may
shows that subsequent facts had taken 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. According to Prof. Avena’s textual
analysis of this provision, the maximum period
within which a final and executory judgment
may be executed is 20 years.
• Exceptions:

1) judgment for support WHICH DO NOT

EXECUTED BY MOTION [Canonizado v. Benitez]
except for support in arrears beyond 10 years
from the date they become due;

place which would render the execution unjust, 2) contempt orders by reason of unauthorized
a hearing on the motion should be held. [Luzon reentry on the land by the ejected defendant
Surety v. Beson (1976)] [Azotes v. Blanco];

• General rule: An appeal seasonably perfected 3) issuance of writs of possession in

shall stay the execution of the judgment, FORECLOSURE CASES within the statute of

unless discretionary execution is granted by the 4) land registration proceedings (and other
court. special proceedings), hence the right to ask for
• Exceptions: However, judgments in the a WRIT OF POSSESSION THEREIN NEVER
following action, despite perfection of an PRESCRIBES
appeal, shall be executed, unless the court
orders otherwise:
1) injunction
2) receivership EXECUTION
3) accounting
4) support

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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

Court. In Situation2, prevailing party files the motion
for 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 SUFFICIENT 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 finally 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 Discretionary

Execution, the court rendering the judgment, if
it still has jurisdiction, may exercise discretion
and order execution pending appeal.
• Exception: This rule, however, is inapplicable
in the case of the Court of Appeals. The Rule on
Discretionary Execution contemplates a
situation where a judgment or final order
rendered in the exercise of its original
jurisdiction and the prevailing party in said
decision seeks immediate execution during the
pendency of an appeal. The CA has no
authority to issue IMMEDIATE EXECUTION
THEREIN. Discretionary execution is allowed
pending appeal of judgment or final order of
the trial court upon good reasons to be stated
in a special order. A JUDGMENT OF THE CA
acquired either by the arrest of the accused or
by his voluntary appearance in court. [Heirs of
Justice J.B.L. Reyes v. CA (2000)]

• General rule: The filing of a supersedeas bond

is sufficient to stay the enforcement of a
discretionary execution.
• Exception: However, according to J.
BOND does not entitle the judgment debtor
to the suspension of execution as a
MATTER OF RIGHT. Where the needs of the
prevailing party are URGENT, the Court can
order immediate execution despite such

100% UP LAW UP BAROPS 2008 Page 190 of 227


levy upon (1) the properties of the

judgment obligor of every kind and nature
C. EXECUTION OF whatsoever which may be disposed, of for
value and (2) not otherwise exempt from
2) The sheriff gives the judgment obligor the
option as to which of the property or part
1. IMMEDIATE PAYMENT ON thereof may be levied upon, sufficient to
satisfy the judgment
3) If the judgment obligor does not exercise
the option, the officer shall first levy on the
• Procedure: personal properties, if any, and then on the
real properties if the personal properties
1) The sheriff or executing officer demands are insufficient to answer for the judgment.
from the judgment obligor the immediate 4) The sheriff shall sell only a sufficient
payment of the full amount stated in the portion of the personal or real property of
writ of execution and all lawful fees. the judgment obligor which has been levied
2) The judgment obligor shall pay in cash, upon.
certified bank check payable to the 5) When there is more property of the
judgment obligee, or ANY OTHER FORM OF judgment obligor than is sufficient to
PAYMENT ACCEPTABLE TO THE LATTER satisfy the judgment and lawful fees, he
(e.g., dacion en pago), the amount of the must sell only so much of the personal or
judgment debt under proper receipt directly real property as is sufficient to satisfy the
to the judgment obligee or his authorized judgment and lawful fees.
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 AND CREDITS
within the same day to the clerk of court of
the court that issued the writ. • Scope: The officer may levy on debts due the
3) If the judgment obligee or his authorized judgment obligor and other credits, including
representative is not present to receive bank deposits, financial interests, royalties,
payment, the judgment obligor shall deliver commissions and other personal property not
the aforesaid payment to the executing capable of manual delivery in the possession or
sheriff. The latter shall turn over all the control of third parties. The process of levying
amounts coming into his possession within shall be called garnishment if the property
the same day to the clerk of court of the involved is money, stocks, or other incorporeal
court that issued the writ, or if the same is property in the HANDS OF THIRD PERSONS.
not practicable, deposit said amounts to a Garnishment merely sets apart such funds but
fiduciary account in the nearest does not constitute the creditor as owner of the
government depository bank of the garnished property. In Chinabank v. Ortega,
Regional Trial Court of the locality. the Court held that garnishment is not a
4) The clerk of said court shall thereafter violation of RA 1405 on the secrecy of bank
arrange for the remittance of the deposit to deposits.
the account of the court that issued the • Procedure:
writ whose clerk of court shall then deliver
said payment to the judgment obligee in 1) Levy shall be made by SERVING NOTICE
satisfaction of the judgment. The excess, if UPON THE PERSON OWING SUCH DEBTS
any, shall be delivered to the judgment OR HAVING IN HIS POSSESSION OR
obligor while the lawful fees shall be CONTROL SUCH CREDITS TO WHICH THE
retained by the clerk of court for disposition JUDGMENT OBLIGOR IS ENTITLED. The
as provided by law. In no case shall the garnishment shall cover only such amount
executing sheriff demand that any payment as will satisfy the judgment and all lawful
by check be made payable to him. fees.
2) The garnishee shall make a WRITTEN
2. SATISFACTION BY LEVY REPORT to the court within five (5) days
from service of the notice of garnishment
• Nature: LEVY MEANS THE ACT OR ACTS by stating whether or not the judgment obligor
which an officer sets apart or appropriates a has sufficient funds or credits to satisfy the
part or the whole of the property of the amount of the judgment. If not, the report
judgment debtor for purposes of the shall state how much funds or credits the
prospective execution sale [Llenares v. garnishee holds for the judgment obligor
Vandevella (1966)]. If susceptible of 3) The garnished amount in cash, or certified
appropriation, the officer REMOVES AND TAKES bank check issued in the name of the
THE PROPERTY FOR SAFEKEEPING; otherwise judgment obligee, shall BE DELIVERED
the same is placed under sheriff’s guards. DIRECTLY TO THE JUDGMENT OBLIGEE
Without valid levy having been made, ANY within ten (10) working days from service
SALE OF THE PROPERTY THEREAFTER is void. of notice on said garnishee requiring such
• Procedure: delivery, except the lawful fees which shall
be paid directly to the court.
1) If the judgment obligor cannot pay all or 4) In the event there are two or more
part of the obligation in cash, certified bank garnishees holding deposits or credits
check or other mode of payment acceptable sufficient to satisfy the judgment, the
to the judgment obligee, the officer shall judgment obligor, if available, shall have

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the right to indicate the garnishee or refuses to yield possession of a property as

garnishees who shall be required to deliver ordered by a writ of execution, contempt IS
the amount due, otherwise, the choice shall NOT THE REMEDY. The sheriff must oust said
be made by the judgment obligee. party from the property; but if demolition is
5) The executing sheriff shall observe the involved, there must be a hearing on motion
same procedure under IMMEDIATE and due notice for the issuance of special
PAYMENT ON DEMAND with respect to order.
delivery of payment to the judgment
SPECIFIC ACTS • When the property subject of the execution
contains improvements constructed or planted
1. CONVEYANCE, DELIVERY OF by the judgment obligor or his agent, the
DEEDS, OR OTHER SPECIFC ACTS officer shall not destroy, demolish or remove
said improvements except upon special order
• Under this situation, there is a judgment which of the court, issued upon motion of the
directs a party to execute a conveyance of land judgment obligee after the hearing and after
or personal property, or to deliver deeds or the former has failed to remove the same
other documents, or to perform, any other within a reasonable time fixed by the court.
the party so ordered fails to comply within a
specified period, there are two possible 5. DELIVERY OF PERSONAL PROPERTY
remedies. Either:
• In judgment for the delivery of personal
1) the court may DIRECT THE ACT TO BE property, the officer shall take possession of
DONE AT THE COST OF THE DISOBEDIENT the same and forthwith deliver it to the party
PARTY by some other person appointed by entitled thereto and satisfy any judgment for
the court and the act when so done shall money as therein provided.
have like effect as if done by the party, or
2) if real or personal property is situated E. EXECUTION OF SPECIAL JUDGMENTS
within the Philippines, the court in lieu of
directing a conveyance thereof may by an • When a judgment requires the performance of
order divest the title of any party and vest ANY ACT OTHER THAN THOSE MENTIONED IN
it in others, which shall have the force and THE TWO PRECEDING SECTIONS (EXECUTION
effect of a conveyance executed in due OF JUDGMENT FOR MONEY AND SPECIFIC
form of law. ACTS), a certified copy of the judgment shall
be attached to the writ of execution and shall
2. SALE OF REAL OR PERSONAL be served by the officer upon the party against
PROPERTY whom the same is rendered, or upon any other
person required thereby, or by law, to obey the
• If judgment is rendered ordering the sale of same, and such party or person may be
real or personal property, an order for punished for contempt if he disobeys such
execution shall be issued describing such judgment.
property as may be ordered sold, selling it, and • Special judgments are those which can be
applying the proceeds in conformity with the complied with by the judgment obligor because
judgment’s instructions. of his personal qualifications or circumstances
(e.g., a judgment ordering a partner to render
3. DELIVERY OR RESTITUTION OF an accounting, a judgment ordering a party to
REAL PROPERTY comply with his recording contract otherwise,
pay damages). Note the difference with
• The officer shall demand of the person against sections 9 and 10 (on execution of money
whom the judgment for the delivery or judgments and specific acts) where contempt is
restitution of real property is rendered and all not a remedy against disobedience by a party.
persons claiming rights under him to peaceably
vacate the property within three (3) working F. GENERAL RULES GOVERNING
days, and restore possession thereof to the EXECUTIONS
judgment obligee, otherwise, the officer shall
oust all such persons therefrom with the 1. PROPERTY EXEMPT FROM
assistance, if necessary, of appropriate peace EXECUTION
officers, and employing such means as may be
reasonably necessary to retake possession, and • General rule: Except as otherwise expressly
place the judgment obligee in possession of provided by law, the following property, and no
such property. ANY COSTS, DAMAGES, RENTS other, shall be exempt from execution:
AS A JUDGMENT FOR MONEY. (a) The judgment obligor's family home as
• According to Prof. Avena, The writ of execution provided by law, or the homestead in which he
directing the sheriff to cause the defendant to resides, and land necessarily used in connection
vacate is in the nature of HABERE FACIAS therewith;
POSSESSIONEM and authorizes the sheriff
WITHOUT NEED OF SECURING A BREAK OPEN (b) Ordinary tools and implements personally used
ORDER to break open the premises where by him in his trade, employment, or livelihood;
there is no occupant therein. When a party

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(c) Three horses, or three cows, or three carabaos, effect during the period within which the
or other beasts of burden, such as the judgment judgment may be enforced by motion. The
obligor may select necessarily used by him in his officer shall make a report to the court every
ordinary occupation; thirty (30) days on the proceedings taken
thereon until the judgment is satisfied in full, or
(d) His necessary clothing and articles for ordinary its effectivity expires. The returns or periodic
personal use, excluding jewelry; reports shall set forth the whole of the
proceedings taken, and shall be filed with the
(e) Household furniture and utensils necessary for court and copies thereof promptly furnished the
housekeeping, and used for that purpose by the parties. [Section 12, Rule 39]
judgment obligor and his family, such as the
judgment obligor may select, of a value not 3. NOTICE REQUIREMENT
exceeding one hundred thousand pesos;
• Before the sale of property on execution, notice
(f) Provisions for individual or family use sufficient thereof must be given as follows:
for four months;
(a) In case of perishable property, by posting
(g) The professional libraries and equipment of written notice of the time and place of the sale
judges, lawyers, physicians, pharmacists, dentists, in three (3) public places, preferably in
engineers, surveyors, clergymen, teachers, and conspicuous areas of the (CPM) municipal or
other professionals, not exceeding three hundred city hall, post office and public market in the
thousand pesos in value; municipality or city where the sale is to take
place, for such time as may be reasonable,
(h) One fishing boat and accessories not exceeding considering the character and condition of the
the total value of one hundred thousand pesos property;
owned by a fisherman and by the lawful use of
which he earns his livelihood; (b) In case of other personal property, by
posting a similar notice in the three (3) public
(i) So much of the salaries, wages, or earnings of places above-mentioned for not less than five
the judgment obligor for his personal services (5) days;
within the four months preceding the levy as are
necessary for the support of his family; (c) In case of real property, by posting for
twenty (20) days in the three (3) public places
(j) Lettered gravestones; abovementioned a similar notice particularly
describing the property and stating where the
(k) Monies, benefits, privileges, or annuities property is to be sold, and if the assessed value
accruing or in any manner growing out of any life of the property exceeds fifty thousand
insurance; (P50,000.00) pesos, by publishing a copy of
the notice once a week for two (2) consecutive
(l) The right to receive legal support, or money or weeks in one newspaper selected by raffle,
property obtained as such support, or any pension whether in English, Filipino, or any major
or gratuity from the Government; regional language published, edited and
circulated or, in the absence thereof, having
(m) Properties specially exempted by law. (e.g., general circulation in the province or city;
property mortgaged to the DBP [Section 26, CA
458]; savings of national prisoners deposited with (d) In all cases, written notice of the sale shall
the POSTAL SAVINGS BANK [Act 2489]; benefits be given to the judgment obligor, at least three
from private retirement systems of companies and (3) days before the sale, except as provided in
establishments with limitations [RA 4917]; paragraph (a) hereof where notice shall be
laborer’s wages except for debts incurred for food, given the same manner as personal service of
shelter, clothing and medical attendance [ART pleadings and other papers as provided by
1708, CIVIL CODE]; benefit payments from SSS section 6 of Rule 13.
[Section 16, RA 1161 AS AMENDED])
• The notice shall specify the place, date and
• Exception: However, no article or species of exact time of the sale which should not be
property mentioned in this section shall be earlier than nine o'clock in the morning and not
exempt from (1) execution issued upon a later than two o'clock in the afternoon (9am-
judgment recovered for its price or (2) upon a 2pm). The place of the sale MAY BE AGREED
judgment of foreclosure of a mortgage thereon. UPON BY THE PARTIES. In the absence of such
agreement, the sale of the property or personal
• The exemptions MUST BE CLAIMED, otherwise property not capable of manual delivery shall
they are deemed waived. It is not the duty of be held in the office of the clerk of court of the
the sheriff to set off the exceptions on his own Regional Trial Court or the Municipal Trial Court
initiative. [Herrera v. Mcmicking] which issued the writ of or which was
designated by the appellate court. In the case
2. RETURN OF WRIT OF EXECUTION of personal property capable of manual
delivery, the sale shall be held in the place
• The writ of execution shall be returnable to the where the property is located. [Section 15,
court issuing it immediately after the judgment Rule 39]
has been satisfied in part or in full. If the
judgment cannot be satisfied in full within PENALTIES
thirty (30) days after his receipt of the writ, the (Selling without notice and defacing notice)
officer shall report to the court and state the
An officer selling without A person willfully
reason therefor. Such writ shall continue in

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the notice prescribed by removing or defacing CERTIORARI AS A REMEDY in the event that his
section 15 of this Rule the notice posted claim was denied since HE IS A NONPARTY to
the original action.
pay punitive damages in if done before the sale,
the amount of five or before the 5. PREVENTING EXECUTION SALE
thousand (P5,000.00) satisfaction of the
pesos to any person judgment if it be • At any time before the sale of property on
injured thereby, IN satisfied before the sale, execution, the judgment obligor may prevent
ADDITION TO HIS shall be liable to pay the sale by paying the amount required by the
ACTUAL DAMAGES, five thousand execution and the costs that have been
BOTH TO BE (P5,000.00) pesos to incurred therein. [Section 18, Rule 39] This is
RECOVERED BY MOTION any person injured by akin to the equitable right of redemption under
IN THE SAME ACTION reason thereof, in Rule 68, which is available to the judgment
addition to his actual obligor in judicial foreclosure of mortgage. The
damages, to be difference lies in the fact that under Rule 68, a
recovered by motion in definite period is given.
the same action
• When the purchaser is the judgment obligee,
and no third-party claim has been filed, he
need not pay the amount of the bid if it does
The third person whose property was levied on
not exceed the amount of his judgment. If it
must make an (A—G—S-)
does, he shall pay only the excess. [Section 21,
Rule 39]
(1) affidavit of his title thereto or right to the
• By written consent of the judgment obligor and
possession thereof,
obligee, or their duly authorized
(2) stating the grounds of such right or title, and
representatives, the officer may adjourn the
(3) serves the same upon the officer making the
sale to any date and time agreed upon by
levy and copy thereof, upon the judgment oblige;
them. Without such agreement, he may
adjourn the sale from day to day if it becomes
The officer shall not be bound to keep the property,
necessary to do so for lack of time to complete
as a general rule
the sale on the day fixed in the notice or the
day to which it was adjourned [Section 22, Rule
39]. Written consent is essential, otherwise the
adjournment will be void [Abrozar v. IAC
Sheriff is bound to keep the property when the (1988)]
JUDGMENT OBLIGEE, ON DEMAND OF THE • Upon a sale of real property , the officer must
OFFICER, FILES A BOND APPROVED BY THE COURT give to the purchaser a certificate of sale
TO INDEMNITY THE THIRD-PARTY CLAIMANT IN A containing: (a) A particular description of the
SUM NOT LESS THAN THE VALUE OF THE real property sold; (b) The price paid for each
PROPERTY LEVIED ON. 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
In case of disagreement as to such value of the of the registration of the certificate of sale.
bond, the same shall be determined by the court Such certificate must be registered in the
issuing the writ of execution. No claim for damages registry of deeds of the place where the
for the taking or keeping of the property may be property is situated. [Section 25, Rule 39]
enforced against the bond unless the action
therefor is filed within one hundred twenty (120) RULES GOVERNING REDEMPTION
days from the date of the filing of the bond.
The officer shall not be liable for damages for the 1) Real property sold as provided in the last
taking or keeping of the property, to any third- preceding section, or any part thereof sold
party claimant if such bond is filed separately, may be redeemed in the manner
hereinafter provided, by the following persons:
• The proceedings set forth above SHALL NOT
PREVENT SUCH CLAIMANT OR ANY THIRD a) The judgment obligor; or his successor in
PERSON FROM VINDICATING HIS CLAIM TO interest in the whole or any part of the
CLAIMING DAMAGES IN THE SAME OR A b) A creditor having a lien by virtue of an
SEPARATE ACTION AGAINST A THIRD-PARTY attachment, judgment or mortgage on the
CLAIMANT WHO FILED A FRIVOLOUS OR property sold, or on some part thereof,
PLAINLY SPURIOUS CLAIM. subsequent to the lien under which the
property was sold. Such redeeming creditor
• Apart from Rule 39, the only other provisions of is termed a redemptioner. [Section 27,
the Rules of Court dealing with terceria or third Rule 39]
party claims are Rule 57.14 on preliminary
attachment and Rule 60.7 on replevin. 2) Redemption can be made by either person:

• In Sierra v. Rodriguez and Northern Motors v. a) JUDGMENT OBLIGOR, Within one year from
Coquia, the Court held that the third party the date of REGISTRATION OF THE

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the registrar of deeds must note the record

b) REDEMPTIONER, Within one year FROM thereof on the margin of the record of the
THE DATE OF REGISTRATION OF THE certificate of sale. The payments mentioned
CERTIFICATE OF SALE; or within 60 days in this and the last preceding sections may
from the LAST REDEMPTION BY ANOTHER be made to the purchaser or redemptioner,
REDEMPTIONER. or for him to the officer who made the sale.
[Section 29, Rule 39]
BUT IN ALL CASES, the judgment obligor shall
have the entire period of 1 YEAR from the date b) A redemptioner must produce to the
of registration of the sale to redeem the officer, or person from whom he seeks to
property. redeem, and serve with his notice to the
further redemption is allowed and he is i. a copy of the judgment or final order
restored to his estate. under which he claims the right to
redeem, certified by the clerk of the
THE PERIOD FOR REDEMPTION IS NOT court wherein the judgment or final
FORECLOSURE SALE. ii. if he redeems upon a mortgage or
other lien, a memorandum of the
3) A right of redemption cannot be levied upon by record thereof, certified by the registrar
a judgment creditor. The creditor may not of deeds, OR
deprive the debtor of any further rights to the iii. an original or certified copy of any
property [Lichauco v. Olegario] assignment necessary to establish his
claim; AND
4) Redemption price varies depending on who the iv. an affidavit executed by him or his
redemptioner is: agent, showing the amount then
actually due on the lien. [Section 30,
a) If judgment obligor: Rule 39]

i. Purchase price c) Until the expiration of the time allowed for

ii. 1 % interest thereon up to the time of redemption, the court may, as in other
redemption proper cases, restrain the commission of
iii. Any amount of assessments or taxes waste on the property by injunction, on the
which the purchaser may have paid application of the purchaser or the
thereon after purchase and interest on judgment obligee, with or without notice;
such last named amount at the same but it is not waste for a person in
rate. possession of the property at the time of
iv. If the purchaser be also a creditor the sale, or entitled to possession
having prior lien to that of the afterwards, during the period allowed for
redemptioner, other than the judgment redemption, to continue to use it in the
under which such purchase was made, same manner in which it was previously
the amount of such other lien, with used, or to use it in the ordinary course of
interest. husbandry; or to make the necessary
repairs to buildings thereon while he
b) If redemptioner occupies the property. [Section 31, Rule
i. Amount paid on the last redemption
ii. 2% interest thereon. d) The purchaser or a redemptioner shall not
iii. Any amount of assessments or taxes be entitled to receive the rents, earnings
which the last redemptioner may have and income of the property sold on
paid thereon after redemption by him execution, or the value of the use and
with interest on such last named occupation thereof when such property is in
amount; the possession of a tenant. All rents,
iv. Amount of any liens held by said last earnings and income derived from the
redemptioner prior to his own with property pending redemption shall belong
interest to the judgment obligor until the expiration
of his period of redemption. In all, the
5) Effects of redemption judgment debtor shall exercise the
following rights:
a) If the judgment obligor redeems he must
make the same payments as are required i. Remain in possession of the property
to effect a redemption by a redemptioner, ii. He cannot be ejected;
whereupon, no further redemption shall be iii. Use the property in the same manner it
allowed and he is restored to his estate. was previously used;
The person to whom the redemption iv. Make Necessary repairs to buildings
payment is made must execute and deliver thereon while he occupies the property
to him a certificate of redemption v. Use it in the ordinary course of
acknowledged before a notary public or husbandry
other officer authorized to take vi. Collect rents, earnings and income
acknowledgments of conveyances of real derived from the property until the
property. Such certificate must be filed and expiration of peiord of redemption.
recorded in the registry of deeds of the
place in which the property is situated and

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e) If no redemption be made within one (1) THE JUDGMENT IS SATISFIED OUT OF THE
year from the date of the registration of the PROCEEDS OF THE SALE OF THE PROPERTY
certificate of sale, the purchaser is entitled OF ONE OF THEM, or one of them pays,
to a conveyance and possession of the without a sale, more than his proportion,
property; or, if so redeemed whenever he may compel a contribution from the
sixty (60) days have elapsed and no other others; and when a judgment is upon an
redemption has been made, and notice obligation of one of them, as security for
thereof given, and the time for redemption another, and the surety pays the amount,
has expired, the last redemptioner is or any part thereof, either by sale of his
entitled to the conveyance and possession ; property or before sale, he may compel
but in all cases the judgment obligor shall repayment from the principal. [Section 35,
have the entire period of one (1) year from Rule 39].
the date of the registration of the sale to
redeem the property. The deed shall be 8. REMEDIES OF JUDGMENT
executed by the officer making the sale or CREDITOR IN AID OF EXECUTION
by his successor in office, and in the latter (Sections 36-43)
case shall have the same validity as though
the officer making the sale had continued in 1. If the execution is returned unsatisfied, he may
office and executed it. Upon the expiration cause the EXAMINATION OF THE JUDGMENT
of the right of redemption, the purchaser or DEBTOR AS TO HIS PROPERTY AND INCOME
redemptioner shall be substituted to and [Section 36]
acquire all the rights, title, interest and
claim of the judgment obligor to the 2. He may cause examination of the DEBTOR OF
property as of the time of the levy. The THE JUDGMENT DEBTOR as to any debt owed by
possession of the property shall be given to him or to any property of the judgment debtor in
the purchaser or last redemptioner by the his possession [Section 37].
same officer unless a third party IS
ACTUALLY HOLDING THE PROPERTY 3. If after examination, the court finds the property
adversely to the judgment obligor. [Section of the judgment debtor either in his own hands or
33, Rule 39] that of any person, the court may order the
property applied to the satisfaction of the
f) Recovery of purchase price and revival of judgment. A party or other person may be
TO TESTIFY as provided in Sect 36-37.

4. If the court finds the earnings of the judgment

debtor are more than sufficient for his family’s
[Section 40]
1. The purchaser or 1. Bring an action 5. The court may appoint a receiver for the
his successors in against the property of the judgment debtor not exempt from
interest fails to judgment execution or FORBID a transfer or disposition or
recover possession creditor. interference with such property [Section 41]
of the property, or
proceedings the judgment [Section 42].
concerning debtor
the sale 7. If the person alleged to have the property of the
judgment debtor or be indebted to him, claims an
b.judgment has
3. Bring an action adverse interest in the property or denies the
been reversed
or set aside
c. the property property. TO RECOVER THE PROPERTY, FORBID ITS
exempt from CONTEMPT [Section 43]
d.A third person
has vindicated 1. Satisfaction of a judgment shall be entered by
his claim to the clerk of court in the court docket, and in the
the property 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
g) When property liable to an execution acknowledged in the same manner as a
against several persons is sold thereon, conveyance of real property by the judgment
and MORE THAN A DUE PROPORTION OF obligee or by his counsel unless a revocation of his

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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. [Section
There is identity of Identity of parties and
44, Rule 39]
parties, subject subject matter.
matter and causes of
2. Whenever a judgment is satisfied in fact, or
otherwise than upon an execution on demand of
the judgment obligor, the judgment obligee or his
The first judgment The first judgment is
counsel must execute and acknowledge, or indorse
constitutes an conclusive only as to
an admission of the satisfaction as provided in the
absolute bar to all matters directly
last preceding section, and after notice and upon
matters directly adjudged and actually
motion the court may order either the judgment
adjudged and those litigated in the first
obligee or his counsel to do so, or MAY ORDER THE
that might have action. Second action
been adjudged. can be prosecuted.
SUCH ADMISSION. [Section 45, Rule 39]

G. EFFECTS OF JUDGMENTS OR FINAL • Res Judicata vs. “law of the case”. Law of
ORDERS the case refers to legal conclusions announced
on a first appeal, whether on the general law or
1. RES JUDICATA IN JUDGMENTS IN the law as applied to the concrete facts, not
REM only prescribe the duty and limit the power of
the trial court to strict obedience and
conformity thereto, but they become and
remain the law of the case in all other steps
whether in the lower court or in the appellate
court on a subsequent appeal [Zarate vs.
Against a specific thing Title of the thing
Director of Lands].
• Law of the case designates the principle that if
Probate of a will or the will or
an appellate court has passed on a legal
administration of the administration.
question and remanded the cause to the court
estate of a deceased
However, the probate of below for further proceedings, the legal
a will or granting of question thus determined by the appellate
court will not be differently determined on a
letters of administration
subsequent appeal in the same case where the
shall only be prima facie
evidence of the death of facts remain the same. It is a doctrine which
the testator or intestate; provides that an appellate court’s
determination on a legal issue is binding on
in respect to the condition, status or both the trial court on remand and an appellate
personal, political, or relationship of the court on a subsequent appeal given the same
legal condition or person, case and substantially the same facts. The
status of a particular doctrine of "law of the case" is one of policy
person or his only and will be disregarded when compelling
relationship to another circumstances call for a redetermination of the
determination of point of law on prior appeal,
and this is particularly true where intervening
2. RES JUDICATA IN JUDGMENTS IN or contemporaneous change in law has
PERSONAM occurred by overruling former decisions or
establishment of new precedent by controlling
• In other cases, the judgment or final order is, authority.
with respect to the matter directly adjudged or
as to any other matter that could have been 4. EFFECT OF FOREIGN JUDGMENTS
missed in relation thereto, conclusive between
the parties and their successors in interest, by • In case of a judgment or final order upon a
title subsequent to the commencement of the specific thing , the judgment or final order, is
action or special proceeding, litigating for the conclusive upon the title to the thing.
same thing and under the same title and in the
same capacity. • In case of a judgment or final order against a
person, the judgment or final order is
3. CONCLUSIVENESS OF JUDGMENT/ presumptive evidence of a right as between the
PRECLUSION OF ISSUES (AUTER parties and their successors in interest by a
ACTION PENDANT) subsequent title.

• In any other litigation between the same • IN EITHER CASE, THE JUDGMENT OR FINAL
parties or their successors in interest, that only ORDER MAY BE REPELLED BY EVIDENCE OF A
is deemed to have been adjudged in a former WANT OF JURISDICTION, WANT OF NOTICE TO
judgment or final order which appears upon its THE PARTY, COLLUSION, FRAUD, OR CLEAR
face to have been so adjudged, or which was MISTAKE OF LAW OR FACT.
actually and necessarily included therein or
necessary thereto. • Such limitation on the review of foreign
judgment is adopted in all legal systems to
BAR BY FORMER CONCLUSIVENESS avoid repetitive litigation on claims and issues,
JUDGMENT (RES OF JUDGMENT prevent harassment of the parties and avoid
JUDICATA) undue imposition on the courts. This policy of
preclusion rests on principles of comity, utility

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and convenience of nations. As a generally COURT DUTY [Sec. 4]

accepted principle of international law, it is part • After the court determines that the case falls
of the law of the Philippines by virtue of the under summary procedure, from an
Incorporation Clause (Section 2, Article II) of examination of the allegations therein and such
the 1987 Constitution [Regalado]. 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
• If no ground for dismissal is found it shall
forthwith issue summons which shall state that
the summary procedure under this Rule shall

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.


• 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
• Not later than 30 days after the last answer is
filed, a preliminary conference shall be held.
1991 REVISED RULES ON SUMMARY • The rules on pre-trial in ordinary cases shall
PROCEDURE be applicable to the preliminary conference
unless inconsistent with the provisions of this
SCOPE [Sec. 1] Rule.
• This governs the summary procedure in the • The failure of the plaintiff to appear in the
MeTCs/MTCs/MCTCs in the following cases preliminary conference shall be a cause for the
falling within their jurisdiction: dismissal of his complaint.
1) All cases of forcible entry and unlawful • The defendant who appears in the absence of
detainer, irrespective of the amount of the plaintiff shall be entitled to judgment on his
damages or unpaid rentals sought to be counterclaim in accordance with Sec. 6. All
recovered. Where attorney's fees are cross-claims shall be dismissed.
awarded, the same shall not exceed P20K. • If a sole defendant shall fail to appear, the
2) All other civil cases, except probate plaintiff shall be entitled to judgment in
proceedings, where the total amount of the accordance with Sec. 6.
plaintiff's claim does not exceed P10K, • Exception: This Rule shall not apply
exclusive of interest and costs. where one of 2 or more defendants sued
under a common cause of action who had
DETERMINATION OF APPLICABILITY [Sec. 2] pleaded a common defense shall appear at
• Upon the filing of a civil action, the court shall the preliminary conference.
issue an order declaring WON the case shall be
governed by this Rule. RECORD OF PRELIMINARY CONFERENCE [Sec. 8]
• A patently erroneous determination to avoid • Within 5 days after the termination of the
the application of the Rule is a ground for preliminary conference, the court shall issue an
disciplinary action. order stating the matters taken up therein,
including but not limited to:
THE ONLY PLEADINGS ALLOWED [Sec. 3] 1) WON the parties have arrived at an
1) Complaints; amicable settlement and the terms thereof;
2) Compulsory counterclaims and cross-claims 2) Stipulations or admissions entered into by
pleaded in the answer; the parties;
3) Answers thereto. 3) WON based on the pleadings and
stipulations and admissions made by the
• All pleadings shall be verified. parties, judgment may be rendered without
the need of further proceedings, in which

100% UP LAW UP BAROPS 2008 Page 198 of 227


event the judgment shall be rendered disciplinary action, and shall be cause to
within 30 days from issuance of the order; expunge the inadmissible affidavit or portion
4) A clear specification of material facts which thereof from the record.
remain controverted;
5) Other matters intended to expedite the APPEAL [Sec. 21]
disposition of the case. • The judgment or final order shall be appealable
to the RTC which shall decide the same in
PAPERS [Sec. 9] • The RTC decision in civil cases governed by this
• Within 10 days from receipt of the order, the Rule, including forcible entry and unlawful
parties shall submit the affidavits of their detainer, shall be immediately executory,
witnesses and other evidence on the factual without prejudice to a further appeal that may
issues defined in the order, together with their be taken therefrom.
position papers setting forth the law and the • Rule 70, Sec. 10 shall be deemed repealed.
facts relied upon by them.
RENDITION OF JUDGMENT [Sec. 10] • The regular procedure prescribed in the ROC
• Within 30 days after receipt of the last shall apply suppletorily.
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


• Cases requiring referral to the Lupon for PART 3: PROVISIONAL REMEDIES
conciliation under PD 1508 where there is no
showing of compliance with such requirement,
shall be dismissed without prejudice and may DEFINITION
be revived only after such requirement shall
have been complied with. • Writs and processes available during the
• Exception: Criminal cases where the pendency of the action which may be resorted
accused was arrested without a warrant. to by a litigant for the preservation or
protection of their rights and interests therein
PROHIBITED PLEADINGS AND MOTIONS [Sec. 19] pending rendition, and for purposes of the
1) MTD the complaint or to quash the ultimate effects, of a final judgment in the
complaint/information except on the ground of case; also known as ancillary or auxiliary
LOJ over the subject matter, or failure to remedies.
comply with the preceding section; • They are applied to a pending litigation, for the
2) Motion for a BOP; purpose of securing the judgment or preserving
3) MNT/MFR of a judgment, or motion for opening the status quo, and in some cases after
of trial; judgment, for the purpose of preserving or
4) Petition for relief from judgment; disposing of the subject matter. [Calo vs.
5) Motion for extension of time to file Roldan, 1946]
pleadings/affidavits; • All inferior courts can grant appropriate
6) Memoranda; provisional remedies provided that the main
7) Petition for certiorari/mandamus/prohibition action is within their jurisdiction. [B.P. 129]
against any interlocutory order; • Orders granting or denying provisional
8) Motion to declare the defendant in default; remedies are merely interlocutory and cannot
9) Dilatory motions for postponement; be the subject of an appeal. They may however
10) Reply; be challenged before a superior court through a
11) 3rd party complaints; petition for certiorari under Rule 65.
12) Interventions.


• 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 • A provisional remedy issued upon order of the
therein. court where an action is pending to be levied
• A violation of this requirement may subject the upon the property or properties of the
party or the counsel who submits the same to defendant therein, the same to be held

100% UP LAW UP BAROPS 2008 Page 199 of 227


thereafter by the sheriff as security for the • must require the sheriff of the court to attach
satisfaction of whatever judgment might be so much of the property in the Philippines of
secured in said action by the attaching creditor the party against whom it is issued, not exempt
against the defendant. [Cuartero vs. CA, 1992] from execution, as may be sufficient to satisfy
the applicant's demand
PURPOSES o EXCEPT if such party makes deposit or
gives bond in an amount equal to that fixed
1. To seize the property of the debtor in advance in the order.
of final judgment and to hold it for purposes of
satisfying the said judgment. CONTENTS OF AFFIDAVIT OF APPLICANT
2. To enable the court to acquire jurisdiction over [Rule 57.3]
the action by the actual or constructive seizure
of the property in those instances where 1. a sufficient cause of action exists
personal service of summons on the creditor 2. the case is one of those mentioned in sec. 1
cannot be effected. [Quasha vs. Juan, 1982] (grounds)
3. there is no other sufficient security for the
GROUNDS [Rule 57.1] claim sought to be enforced by the action
4. the amount due to the applicant or the value of
1. Action for recovery of a specified amount of the property the possession of which he is
money or damages EXCEPT moral and entitled to recover, is as much as the sum for
exemplary, on a cause of action against a party which the order is granted above all legal
who is about to depart from the Philippines counterclaims.
with intent to defraud his creditors; • The affidavit and the bond must be filed with
2. Action for money or property embezzled or the court before the order issues.
fraudulently misapplied or converted to his own
use by a public officer, or an officer of a CONDITION OF APPLICANT'S BOND [Rule
corporation, or an attorney, factor, broker, 57.4]
agent, or clerk, in the course of his
employment as such, or by any other person in • Applicant must give a bond executed to the
a fiduciary capacity, or for a willful violation of adverse party in the amount fixed by the court
duty; in its order granting the issuance of the writ
3. Action to recover the possession of property conditioned that the applicant will pay:
unjustly or fraudulently taken, detained or 1. all the costs which may be adjudged to the
converted, when the property, or any part adverse party and
thereof, has been concealed, removed, or 2. all damages which the adverse party may
disposed of to prevent its being found or taken sustain by reason of the attachment if the
by the applicant or an authorized person; court shall finally adjudge that the
4. Action against a party who has been guilty of a applicant was not entitled thereto.
fraud in contracting the debt or incurring the
obligation upon which the action is brought, or MANNER OF ATTACHING PROPERTY [Rule
in the performance thereof; 57.5]
5. Action against a party who has removed or
disposed of his property, or is about to do so, • The sheriff enforcing the writ shall attach only
with intent to defraud his creditors; or so much of the property in the Philippines of
the adverse party not exempt from execution
6. Action against a party who does not reside and as may be sufficient to satisfy the applicant’s
is not found in the Philippines, or on whom demand.
summons may be served by publication. • The levy on attachment shall be preceded or
contemporaneously accompanied by service on
STAGES IN THE GRANT OF PRELIMINARY the defendant within the Philippines of:
ATTACHMENT 1. summons
2. copy of complaint
1. The court issues the order granting the 3. application for attachment
application 4. affidavit and bond of applicant
2. The writ of attachment issues pursuant to the 5. order and writ of attachment.
order granting the writ o EXCEPT if:
3. The writ is implemented 1. Summons could not be served personally or
by substituted service despite diligent
• For the first two stages, jurisdiction over the efforts, or
person of the defendant is NOT necessary. 2. Defendant is a resident of the Philippines
However, once the implementation of the writ temporarily absent therefrom, or
commences, the court must have acquired 3. Defendant is a non-resident, or
jurisdiction over the defendant. [Cuartero, 4. The action is in rem or quasi in rem.
supra] • Manner of attachment of real and personal
property [Rule 57.7]:
1. Real property, or growing crops
thereon, or any interest therein - by
ATTACHMENT [Rule 57.2] filing with the registry of deeds a copy of
the order, together with a description of the
• may be issued ex parte upon motion with property attached, and a notice that it is
notice and hearing by the court in which the attached, or that such real property and
action is pending, or by the Court of Appeals or any interest therein held by or standing in
the Supreme Court. the name of such other person are

100% UP LAW UP BAROPS 2008 Page 200 of 227


attached, and by leaving a copy of such attachment and notice shall be liable to the
order, description, and notice with the applicant for the amount of such credits, debts
occupant of the property, if any, or with or other similar personal property, until the
such other person or his agent if found attachment is discharged, or any judgment
within the province. Where the property recovered by him is satisfied, unless such
has been brought under the operation of property is delivered or transferred, or such
either the Land Registration Act or the debts are paid, to the clerk, sheriff, or other
Property Registration Decree, the notice proper officer of the court issuing the
shall contain a reference to the number of attachment.
the certificate of title, the volume and page • Garnishment - a species of attachment for
in the registration book where the reaching the property or credits pertaining
certificate is registered, and the registered or payable to a judgment debtor;
owner or owners thereof. • Service of summons upon the garnishee is
2. Personal property capable of manual not necessary. All that is necessary is the
delivery - by taking and safely keeping it service upon him of the writ of
in the sheriff’s custody, after issuing the garnishment, as a consequence of which he
corresponding receipt therefor; becomes a virtual party or a forced
3. Stocks or shares, or an interest in intervenor in the case. [Perla Compania v.
stocks or shares, of any corporation or Ramolete, 1991]
company - by leaving with the president 2. attachment of interest in property
or managing agent thereof, a copy of the belonging to the estate of a decedent [Rule
writ, and a notice stating that the stock or 57.9] - The attachment of the interest of an
interest of the party against whom the heir, legatee, or devisee in the property
attachment is issued is attached in belonging to the estate of a decedent shall not
pursuance of such writ; impair the power of the executor,
4. Debts and credits, including bank administrator, or other personal representative
deposits, financial interest, royalties, of the decedent over such property for the
commissions, and other personal purpose of administration. Such personal
property not capable of manual representative, however, shall report the
delivery - by leaving with the person attachment to the court when any petition for
owing such debts, or having in his distribution is filed, and in the order made upon
possession or under his control, such such petition, distribution may be awarded to
credits or other personal property, or with such heir, legatee, or devisee, but the property
his agent, a copy of the writ, and notice attached shall be ordered delivered to the
that the debts owing by him to the party sheriff making the levy, subject to the claim of
against whom attachment is issued, and such heir, legatee, or devisee, or any person
the credits and other personal property in claiming under him.
his possession, or under his control,
belonging to said party, are attached in SALE OF ATTACHED PROPERTY
pursuance of such writ;
5. Interest of the party whom attachment
• Whenever it shall be made to appear to the
is issued in property belonging to the
court in which the action is pending, upon
estate of the decedent - by serving the
hearing with notice to both parties, that (1) the
executor or administrator or other personal
party attached is perishable, or that (2) the
representative of the decedent with a copy
interests of all the parties to the action will be
of the writ and notice that said interest is
will be subserved by the sale thereof, the court
attached. A copy of said writ of attachment
may order such property to be sold at public
and of said notice shall also be filed in the
auction in such manner as it may direct, and
office of the clerk of the court in which said
the proceeds of such sale to be deposited in
estate is being settled and served upon the
court to abide the judgment in the action. [Rule
heir, legatee or devisee concerned.
• If the property sought to be attached is in
custodia legis, a copy of the writ of attachment
shall be filed with the proper court or quasi- DISCHARGE OF ATTACHMENT
judicial agency, and notice of the attachment
served upon the custodian of such property. • After a writ of attachment has been enforced,
• After enforcing the writ, the sheriff must make the party whose property has been attached, or
a return thereon to the court from which the the person appearing on his behalf, may move
writ issued, with a full statement of his for the discharge of the attachment wholly or in
proceedings under the writ and a complete part on the security given.
inventory of the property attached, together • Grounds for discharge:
with any counter-bond given by the party 1. Debtor has posted a counter-bond or has
against whom attachment is issued, and serve made the requisite cash deposit [Rule
copies thereof on the applicant. [Rule 57.6] 57.12];
2. Attachment was improperly or irregularly
issued [Rule 57.13] as where there is no
EFFECTS OF ATTACHMENT ground for attachment, or affidavit and/or
bond filed therefore are defective or
1. attachment of debts, credits and all other insufficient;
similar personal property [Rule 57.8] - All 3. Attachment is excessive but the discharge
persons having in their possession or under shall be limited to the excess [Rule 57.13];
their control any credits or other similar 4. Property attached is exempt from execution
personal property belonging to the adverse [Rules 57.2 and 57.5];
party, or owing any debts to him, at the time of
service upon them of the copy of the writ of

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5. Judgment is rendered against the attaching

creditor [Rule 57.19].


[Rule 57.14]

• The same procedure as Rule 39.16 (execution).



• 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 II. PRELIMINARY INJUNCTION
order of attachment, and all property attached
remaining in any such officer's hands, shall be DEFINITION
delivered to the party against whom
attachment was issued, and the order of • An order granted by the court where the
attachment discharged. [Rule 57.19] action/proceeding is pending at any stage of an
action/proceeding prior to the judgment
IMPROPER, IRREGULAR OR EXCESSIVE requiring a party or a court, agency or a person
ATTACHMENT to refrain from a particular act or acts
(“preliminary preventive injunction”). [Rule
• An application for damages must be filed before 58.1 and 58.2]
the trial, or before appeal is perfected, or • When preventive injunction does not lie:
before the judgment becomes executory. 1. To restrain collection of taxes (Valley
• Such damages may be awarded only after Trading vs CA), except where there are
hearing and shall be included in the judgment special circumstances that bear the
on the main case. [Rule 57.20] existence of irreparable injury. (Churchill &
• Procedure for claiming damages is EXCLUSIVE. Tait vs Rafferty, 1915)
Such claims for damages cannot be the subject 2. To restrain the sale of conjugal properties
of an independent action. where the claim can be annotated on the
o EXCEPTIONS: title as a lien, such as the husband’s
1. Where the principal case was dismissed obligation to give support. (Saavedra vs
for lack of jurisdiction by the trial court Estrada, 1931)
without giving opportunity to the party 3. To restrain a mayor proclaimed as duly
whose property was attached to apply elected from assuming his office. (Cereno
for and prove his claim; and vs Dictado, 1988)
2. Where the damages by reason of the 4. To restrain registered owners of the
attachment was sustained by a third property from selling, disposing and
person who was not a party to the encumbering their property just because
action wherein such writ was issued. the respondents had executed Deeds of
[Santos v. CA, 95 Phil 360] Assignment in favor of petitioner. (Tayag
vs. Lacson, 2004)
5. Against consummated acts. (PNB vs Adi;
Rivera v. Florendo, 1986; Ramos, Sr. v.
CA, 1989; Zabal vs CA)

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EXCEPTION: If the act is of continuing remedy in the main action

nature and in derogation of plaintiff’s right
at the outset. PURPOSE
6. Against disposing of the case on the merits
(Ortigas and Company Limited Partnership • To prevent future injury and maintain the
vs CA, 1988) status quo (i.e. the last actual, peaceable,
7. To stop the execution of judgment where uncontested status which preceded the pending
the judgment was already executed. controversy.) [Kencht vs CA, 1993]
(Meneses vs Dinglasan)
8. But where the lower court enforced its
judgment before a party against whom the
execution was enforced could elevate her
1. Applicant is entitled to the relief demanded,
appeal in an injunction suit, which was
and the relief consists in restraining the
instituted to prevent said execution, an
commission or continuance of the acts or acts
independent petition for injunction in the
complained of, or in requiring performance of
Court of Appeals is justified. (Manila Surety
an act or acts;
and Fidelity vs Teodoro, 1967)
2. Commission, continuance or non-performance
9. The CFI has no power to issue a writ of
of the acts complained of during the litigation
injunction against the Register of Deeds if
would probably work injustice to the applicant;
its effect is to render nugatory a writ of
execution issued by the National Labor
3. A party, court, agency or a person is doing,
Relations Commission. (Ambrosio vs
threatening, or is attempting to do, or is
Salvador, 1978)
procuring or suffering to be done, some act or
10. Transfer of possession of property to party
acts probably in violation of the rights of the
with disputed legal title via preliminary
applicant respecting the subject of the action or
proceeding, and tending to render the
judgment ineffectual. [Rule 58.3]
a) Forcible entry and unlawful detainer
cases in which the court may issue
preliminary mandatory injunction [Rule REQUIREMENTS
b) Property covered by Torrens Title when 1) The application for injunction must be verified,
there is a clear finding of ownership and must show facts entitling the applicant to
and possession of the land. (GSIS vs the relief demanded;
Florendo) 2) Unless exempted by the court, the applicant
• “Preliminary mandatory injunction” - requires must file with the court where the
the performance of a particular act or acts. action/proceeding is pending a bond executed
[Rule 58.1] to the party or person enjoined, in an amount
• Requisites of mandatory injunction: to be fixed by the court. [Rule 58.4]
1. Invasion of the right is material and 3) Hearing and prior notice to the party/person
substantial sought to be enjoined.
2. Right of the complainant is clear and EXCEPTIONS:
unmistakable a) Great or irreparable injury would result to
3. Urgent and paramount necessity for the the applicant before the matter can be
writ to prevent serious damages [Bautista heard on notice.
v. Barcelona, 100 Phil 1078] i) The court may issue a TRO effective for
4. The effect would not be to create a new 20 days from service on the party
relation between the parties [Alvaro v. sought to be enjoined.
Zapata, 1982] ii) Injury is “irreparable” if it is of such
• Mandatory injunction does not lie in the constant and frequent recurrence that
following instances: no fair or reasonable redress can be
1. to compel cohabitation [Arroyo v. had therefore in court of law or where
Vasquez,1921] there is no standard by which their
2. cancellation of attachment [Levy Hermanos amount can be measured with
v. Lacson, 1940] reasonable accuracy.
3. release imported goods pending hearing b) Matter is of extreme urgency and the
before the Commissioner of Customs. applicant will suffer grave injustice and
[Commissioner of Customs v. Cloribel, irreparable injury
1967] i) Judge may issue ex parte a TRO
4. to take property out of the possession or effective for 72 hours from issuance.
control of one party and place it into that of ii) Within 72 hours, judge shall conduct a
another whose title has not clearly been summary hearing to determine whether
established [Pio v. Marcos, 1974] the TRO shall be extended until the
application for preliminary injunction
Generally directed against Directed against a iii) Maximum period of effectivity of
a party in the action court/tribunal/person TRO=20 days.
exercising judicial powers o If the application for preliminary injunction
Does not involve the may be on the ground is denied or not resolved within the said
court’s jurisdiction that the court against period, the TRO is deemed automatically
whom the writ is sought
acted without/in excess
of jurisdiction o The effectivity of a TRO is not extendible
May be the main action Always a main action and no court shall have authority to extend
itself, or just a provisional

100% UP LAW UP BAROPS 2008 Page 203 of 227


or renew the same on the same ground for • The guiding principle is the prevention of
which it was issued. imminent danger to the property. If an action
o However, if issued by the Court of Appeals by its nature, does not require such protection
or a member thereof, the TRO shall be or preservation, said remedy cannot be applied
effective for 60 days from service on the for and granted. (Commodities Storage v. CA,
party or person sought to be enjoined. 1997)
o A TRO issued by the Supreme Court or a • Receivership is aimed at the preservation of,
member thereof shall be effective until and at making more secure, existing rights; it
further orders. cannot be used as an instrument for the
o The trial court, the Court of Appeals, the destruction of those rights. (Arranza v. B.F.
Sandiganbyan or the Court of Tax Appeals Homes, 2000)
that issued a writ of preliminary injunction
against a lower court, board, officer, or APPOINTMENT OF RECEIVER
quasi-judicial agency shall decide the main
case or petition within six (6) months from • Requirements:
the issuance of the writ. [Rule 58.5] 1. verified application [Rule 59.1]
2. bond [Rule 59.2 and 59.5]
1. court where the action is pending
• TRO vs. Injunction. A TRO is intended as a 2. CA
restraint upon the defendant until the propriety 3. SC
of granting an injunction pendente lite can be 4. During the pendency of an appeal, the
determined, and it goes no further than to appellate court may allow an application for
preserve the status quo until such the appointment of a receiver to be filed in
determination. [Anglo-Fil Trading v. Lazaro, and decided by the court of origin. [Rule
1983] 59.1]
• Same requirements for application as • When receiver can be appointed:
preliminary injunction. 1. When it appears from the verified
• An application for a TRO shall be acted upon application and other proof that the
only after all parties are heard in a summary applicant has an interest in the property or
hearing, which shall be conducted within 24 fund which is the subject of the action or
hours after the sheriff's return of service and/or proceeding, and that such property or fund
the records are received by the branch selected is in danger of being lost, removed, or
by raffle. [Rule 58.4] materially injured unless a receiver be
appointed to administer and preserve it;
OBJECTION TO/MOTION FOR 2. When it appears in an action by the
mortgagee for the foreclosure of a
mortgage that the property is in danger of
INJUNCTION/RESTRAINING ORDER being wasted or dissipated or materially
injured, and that its value is probably
• Grounds: insufficient to discharge the mortgage debt,
1. Insufficiency of application or that the parties have so stipulated in the
2. other grounds (e.g. applicant’s bond is contract of mortgage;
insufficient/defective), upon affidavits of 3. After judgment, to preserve the property
the party or person enjoined during the pendency of an appeal, or to
3. if it appears after hearing that although the dispose of it according to the judgment, or
applicant is entitled to the injunction or to aid execution when the execution has
restraining order, the issuance or been returned unsatisfied or the judgment
continuance thereof would cause obligor refuses to apply his property in
irreparable damage to the party/person satisfaction of the judgment, or otherwise
enjoined, while the applicant can be fully to carry the judgment into effect;
compensated for such damages as he may 4. Whenever in other cases it appears that the
suffer, provided the former files a bond appointment of a receiver is the most
• If it appears that the extent of the preliminary convenient and feasible means of
injunction or restraining order granted is too preserving, administering, or disposing of
great, it may be modified. [Rule 58.6] the property in litigation. [Rule 59.1]
• Specific situations when a receiver may be
III. RECEIVERSHIP 1. If a spouse without just cause abandons
the other or fails to comply with his/her
obligations to the family, the aggrieved
NATURE spouse may petition the court for
receivership. [Family Code, Article 101]
• A receiver is a person appointed by the court in 2. The court may appoint a receiver of the
behalf of all the parties to the action for the property of the judgment obligor; and it
purpose of preserving and conserving the may also forbid a transfer or other
property in litigation and prevent its possible disposition of, or any interference with, the
destruction or dissipation, if it were left in the property of the judgment obligor not
possession of any of the parties. exempt from execution. [Rule 39.41]
• The appointment of a receiver is not a matter 3. After the perfection of an appeal, the trial
of absolute right. It depends upon the sound court retains jurisdiction to appoint a
discretion of the court and is based on facts receiver of the property under litigation
and circumstances of each particular case. since this matter does not touch upon the

100% UP LAW UP BAROPS 2008 Page 204 of 227


subject of the appeal. [Rule 41.9; Acuña v. • when court determines that the necessity for a
Caluag, 1957] receiver no longer exists
4. After final judgment, a receiver may be • requires notice to all interested parties and
appointed as an aid to the execution of hearing [Rule 59.8]
judgment. (Philippine Trust Company v.
Santamaria, 1929)
5. 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)
• The general rule is that neither party to the
litigation should be appointed as a receiver
without the consent of the other because a
receiver is supposed to be an impartial and
disinterested person. (Alcantara v. Abbas,
• A clerk of court should not be appointed as a
receiver as he is already burdened with his
official duties. (Abrigo v. Kayanan, 1983).



1. If the appointment sought or granted is without

sufficient cause
2. Adverse party files a sufficient bond to answer
for damages [Rule 59.3]
3. Bond posted by the applicant for grant of
receivership is insufficient
4. Bond of receiver is insufficient


1. Bring and defend in such capacity actions in his

own name with leave of court
2. Take and keep possession of the property in
controversy NATURE
3. Receive rents
4. Collect debts due to himself as receiver or to • Available where the principal action is to
the fund, property, estate, person, or recover possession of personal property.
corporation of which he is the receiver
5. Compound for and compromise the same REPLEVIN PRELIMINARY
6. Make transfers ATTACHMENT
7. Pay outstanding debts Available only where the Available even if the
8. Divide the money and other property that shall principal relief sought in recovery of personal
the action is recovery of property is only an
remain among the persons legally entitled to
personal property, the incidental relief sought in
receive the same’ other reliefs (e.g. the action.
9. Generally, to do such acts respecting the damages) being merely
property as the court may authorize incidental thereto.
10. Invest funds in his hands, ONLY by order of the Can be sought only where May be resorted to even
court upon the written consent of all the the defendant is in actual if the personalty is in the
parties. [Rule 59.6] or constructive possession custody of a third person.
of the personalty
LIABILITY FOR REFUSAL OR NEGLECT TO Extends only to personal Extends to all kinds of
DELIVER PROPERTY TO RECEIVER property capable of property, whether real,
manual delivery. personal or incorporeal.
1. Contempt Available to recover To recover the possession
personal property even if of personal property
2. Be liable to the receiver for the money or the
the same is not unjustly detained
value of the property and other things so concealed, removed or (presupposed that the
refused or neglected to be surrendered disposed of. same is being concealed,
together with all damages that may have been removed or disposed of
sustained by the party or parties entitled to prevent its being found
thereto as a consequence of such refusal or or taken by the applicant.
neglect. [Rule 59.7] Cannot be availed of if the Can still be resorted to
property is in custodia even if the property is in
legis (e.g. under custodia legis.
TERMINATION OF RECEIVERSHIP attachment, seized under
a search warrant).
• motu proprio or on motion of either party EXCEPT:
a. when the seizure is
illegal; (Bagalihog v.

100% UP LAW UP BAROPS 2008 Page 205 of 227


Fernandez, 1991) and 3. Property is not delivered to the plaintiff for

b. where there is any reason [Rule 60.6]
reason to believe that
the seizure will not
by the filing of the PERSON
criminal action in
court or there are
• The same procedure as Rules 39.16 (execution)
conflicting claims.
(Chua v. CA, 1993)
and 57.14 (preliminary attachment).


1. application
• Who may apply: party praying for the recovery
of possession of personal property. [Rule 60.1]
• When: (1) at the commencement of the action
or (2) before the answer [unlike attachment,
injunction and support pendent elite (anytime
before final judgment) and receivership
(anytime even after final judgment)].
• The applicant must show by his own affidavit or
that of some other person who personally
knows the facts:
(a) That the applicant is the owner of the
property claimed, particularly describing it, or
is entitled to the possession thereof;
(b) That the property is wrongfully detained by
the adverse party, alleging the cause of
detention thereof according to the best of his
knowledge, information, and belief;
(c) That the property has not been distrained
or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of
execution or preliminary attachment, or
otherwise placed under custodia legis, or if so
seized, that it is exempt from such seizure or
custody; and
(d) The actual market value of the property. V. SUPPORT PENDENTE LITE
[Rule 60.2]
2. bond NATURE
• The applicant must also give a bond, executed
to the adverse party in double the value of the • Support pendente lite can be granted by the
property as stated in the affidavit. [Rule 60.2] court in two (2) instances:
1. civil action for support; and
ORDER OF REPLEVIN 2. criminal action where civil liability includes
support for the offspring as a consequence of
• Upon the filing of affidavit and approval of the the crime.
bond, the court shall issue an order and the • Where the right to support is put in issue by
corresponding writ of replevin describing the the pleadings or the fact from which the right
personal property alleged to be wrongfully to support arises is in controversy or has not
detained and requiring the sheriff forthwith to been established, the court cannot grant
take such property into his custody. [Rule support pendente lite (Francisco v. Zandueta,
60.3] 1929)
• A writ of replevin may be served anywhere in • Judgment for support does not become
the Philippines. 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
DISPOSITION OF PROPERTY BY SHERIFF entitled to support, his or her alimony may be
modified or altered, in accordance with his
• The sheriff shall retain the property for 5 days. increased or decreased needs, and with the
The adverse party may object to the sufficiency means of the giver. It cannot be regarded as
of the bond or surety or he may file a subject to final determination. (Lam v. Chua,
redelivery bond. 2004)
• 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 1. verified application [Rule 61.1]
property under a writ of replevin if: • Who may apply: any party
1. He seasonably posts a redelivery bond • When: (1) at the commencement of the
[Rule 60.5] proper action or proceeding, or (2) at any
2. Plaintiff’s bond is found to be insufficient or time prior to the judgment or final order
defective and is not replaced with proper • Contents:
bond o Grounds for the claim

100% UP LAW UP BAROPS 2008 Page 206 of 227


o Financial conditions of both parties

o Affidavits, depositions or other
authentic documents in support
2. verified comment [Rule 61.2]
• A copy of the application and all supporting
documents shall be served upon the adverse
party, who shall have 5 days to comment
thereon, unless a different period is fixed by
the court upon his motion.
3. hearing [Rule 61.3]
• Within 3 days after the comment is filed or
after the expiration of the period for its filing.


• 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 PART 4: SPECIAL CIVIL ACTIONS

REMEDIES OF A PARTY WHO WAS • Rules on ordinary civil actions shall apply to
ERRONEOUSLY COMPELLED TO GIVE special civil actions insofar as they are not
inconsistent with or may supplement the rules
governing the latter. [Rule 1.3]
• How commenced:
1. Apply for an order for such reimbursement by 1. complaint
the recipient on motion in the trial court in the a. interpleader
same case, unless such restitution is already b. expropriation
included in the judgment, or c. foreclosure of real estate mortgage
2. Failing therein, file a separate action for d. partition
reimbursement against the person legally e. forcible entry and unlawful detainer
obliged to give support. [Rule 61.7] 2. petition
a. declaratory relief
b. review of adjudications of
Constitutional commissions
c. certiorari
d. prohibition
e. mandamus
f. quo warranto
g. contempt
• Venue is governed by the general rules on
venue, except as otherwise indicated in the
particular rules for special civil actions.
• Writs of injunction, mandamus, certiorari,
prohibition, quo warranto and habeas corpus
issued by RTCs are enforceable within their
respective judicial regions. [B.P. 129]
• 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]
2. ejectment suits [Rule 70]

100% UP LAW UP BAROPS 2008 Page 207 of 227


3. contempt [Rule 71]



A remedy whereby a person who has property in

his possession or has an obligation to render wholly
or partially, without claiming any right in both,
comes to court and asks that the defendants who
have made conflicting claims upon the same
property or who consider themselves entitled to
demand compliance with the obligation be required
to litigate among themselves in order to determine
who is entitled to the property or payment or the
obligation [Beltran v. PHHC, 1969]

PURPOSE 1. Complaint filed by the person against whom

conflicting claims are or may be made. [ibid]
• To compel conflicting claimants to interplead o The docket and other lawful fees paid by
and litigate their several claims among the complainant, and costs and litigation
themselves. [Rule 62.1] expenses shall constitute a lien or charge
• To protect a person against double vexation in upon the subject matter of the action,
respect of one liability [Beltran, supra] unless otherwise ordered by the court.
WHEN PROPER 2. Court order requiring the conflicting claimants
to interplead with one another. If the interests
of justice so require, the court may direct that
• Whenever conflicting claims upon the same
the subject matter be paid or delivered to the
subject matter are or may be made against a
court. [Rule 62.2]
person who claims no interest in the subject
3. Summons, copy of complaint and order served
matter or an interest which is not disputed by
upon the conflicting claimants. [Rule 62.3]
the claimants. [Rule 62.1]
4. Each claimant shall file his answer within 15
• Cannot be availed of to resolve the issue of
breach of undertakings made by defendants, days from service of the summons, serving a
copy thereof upon each of the other conflicting
which should be resolved in an ordinary action
claimants, who may file their reply thereto.
for specific performance or other relief [Beltran,
a) If claimant fails to plead within the time
herein fixed, the court may, on motion,
declare him in default and render judgment
PROCEDURE barring him from any claim in respect to
the subject matter.
b) Within the time for filing an answer, each
Complaint claimant may file a motion to dismiss.
o Grounds:
a. impropriety of the interpleader
Is it filed within a Dismissed –
reasonable time after
action, or
N barred by laches (Wack
the dispute arose? Wack Golf vs. Lee Won b. other appropriate grounds specified
1976) in Rule 16.
o The period to file the answer shall be
Y tolled.
o If the motion is denied, an answer may
be filed within the remaining period, in
Are the docket fees, no case less than 5 days (reckoned
etc. paid by from notice of denial) [Rule 62.4].
complainant ?
5. The parties may file counterclaims, cross-
claims, third-party complaints and responsive
Y pleadings thereto. [Rule 62.5]
6. Pre-trial
7. Court shall determine conflicting claimants’
Order to interplead respective rights and adjudicate their several
claims. [Rule 62.6]

Service of summons

Motion to Dismiss

MTD granted? Y

100% UP LAW N UP BAROPS 2008 Page 208 of 227

7. adequate relief is not available through other

means or other forms of action or proceedings.
[Ollada v. Central Bank, 1962]
o 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,


1. a person interested under a deed, will, contract

or other written instrument
2. a person whose rights are affected by a
statute, executive order or regulation,
ordinance or any other governmental regulation
[Rule 63.1]

• all persons who have or claim any interest
which would be affected by the declaration
[Rule 63.2]
• If action involves the validity of a
statute/executive order/regulation/other
governmental regulation, the Solicitor General
shall be notified. [Rule 63.3]
• If action involves the validity of a local
government ordinance, the prosecutor/attorney
of the LGU involved shall be notified. [Rule

Subject Matter Notice Given To

Validity of a statute, EO or Sol Gen
regulation, or any
governmental regulation
Validity of a local Prosecutor or attorney
government ordinance of the LGU
Constitutionality of a local Sol Gen
II. DECLARATORY RELIEF government ordinance

• Non-joinder of interested persons is not a

REQUISITES jurisdictional defect; but persons not joined
shall not be prejudiced in their interests unless
1. subject matter of the controversy must be a otherwise provided by the Rules (R63.2;
deed, will, contract or other written instrument, Baguio Citizens Action vs. CityCouncil of
statute, executive order or regulation, or Baguio, 1983)
ordinance [Rule 63.1]; • third-party complaint not available in a
2. the terms of said documents and the validity declaratory relief (Commission of Customs vs.
thereof are doubtful and require judicial Cloribel, 1977); but a compulsory counterclaim
construction [Santos v. Aquino, 94 Phil 65] may be set up (Visayan Packing vs.
3. no breach of the documents in question. Reparations Commission, 1987)
[Reparations Commission v. Northern Lines,
1970] Otherwise, an ordinary civil action is the WHERE FILED
o Concept of a cause of action in ordinary civil • in the proper RTC [Rule 63.1]
actions does not apply. • not within the original jurisdiction of the
o If before the final termination of the case, a Supreme Court, even if pure questions of law
breach or violation of an instrument or a are involved. [Remotigue vs. Osmeña, 1967]
statute, etc. should take place, the action
may be converted into an ordinary action.
[Rule 63.6]
4. actual justiciable controversy [Edades v. RIGHTS/CONSTRUE INSTRUMENTS
Edades, 99 Phil 675]
5. adverse interests between the parties 1. where a decision would not terminate the
o A declaratory relief is not available for a uncertainty or controversy which gave rise to
declaration of citizenship (Villa-Abrille vs. the action, or
Republic, 1956) or the validity of a 2. where the declaration or construction is not
registration certificate (Obiles vs. Republic, necessary and proper under the circumstances.
1953) as they are unilateral in nature and [Rule 63.5]
without conflicting adverse interests.
6. issue must be ripe for judicial determination SIMILAR REMEDIES COVERED BY RULE 63
[Tolentino v. Board of Accountancy, 90 Phil 83]
1. Action to quiet title (Arts. 476-481 Civil Code)

100% UP LAW UP BAROPS 2008 Page 209 of 227


2. Action for reformation of instrument (Arts.

1359-1369 Civil Code)
3. Action to consolidate ownership (Art. 1607 Civil
Code) [Rule 63.1 par. 2]


Action for Declaratory
Relief Parties - all persons RESOLUTIONS OF THE
By whom filed – (1) any who have or claim
person interested under a any interest which COMELEC AND COA
deed, will, contract or other would be affected by
WRITTEN instrument, or the declaration;
(2) any persn whose rights Rights of persons SCOPE
are affected by a statute, NOT parties shall
executive order or NOT be prejudiced.
regulation, ordinance or
• Applicable only to judgments and final orders of
(SEC. 2)
any other governmental the COMELEC and COA [Rule 64.1]
regulation Solicitor General – • Judgments/orders of the Civil Service
shall be notified and Commission are now reviewable by the Court of
When – BEFORE breach be heard whenever:
or violation thereof Filing of Appeals under Rule 43, eliminating recourse to
(1) an action
Petition involves the the Supreme Court (SC). [RA 7902; SC Revised
Where – RTC validity of a Administrative Circular No. 1-95]
statute, • An aggrieved party may bring the questioned
Why – (1) to determine any executive
question of construction or order or
judgment, etc. directly to the SC on certiorari
validity arising, and (2) for regulation, or under Rule 65. [Rule 64.2]
a declaration of rights or any other o such petition for certiorari shall not stay the
duties, thereunder governmental execution of the judgment, etc. sought to
Action for (SEC. 3) be reviewed unless otherwise directed by
Reformation/Quiet (2) an action the Supreme Court [Rule 64.8]
Title/Consolidate alleges a
Ownership LGU
ordinance to PROCEDURE
(SEC. 1) be
unconstitution 1. File petition for review.
al (SEC. 4)
• When [Rule 64.3]:
Exercise Prosecutor or LGU o Within 30 days from notice of
of Court’s attorney – shall be judgment/final order/resolution sought to
power notified and heard in
be reviewed
any action involving
the validity of local o Filing of motion for reconsideration/new
ordinance. (SEC. 4) trial with Constitutional commission
interrupts the 30-day period. If motion is
denied, aggrieved party may file petition
Court, motu proprio
within remaining period, which shall not be
or upon motion, may less than 5 days from notice of denial.
When – a
refuse to exercise the breach or • Form [Rule 64.5]:
power to declare a. verified and accompanied by (annexes):
NO YES violation
rights and to should take
construe instruments 1. a clearly legible duplicate original or
– grounds BEFORE
certified true copy of the subject
(1) where it would the judgment, etc.
not terminate
termination 2. certified true copies of such material
the uncertainty of the case
or controversy portions of the record referred to in the
(SEC. 6)
which gave petition
rise to the 3. other documents relevant and pertinent
(2) where it is not
to the petition
necessary and 4. proof of service of a copy of the petition
proper under on the Commission and the adverse
the Conversion party
circumstances into
EXCEPTION: action 5. proof of the timely payment of the
for reformation/quiet action
docket and other lawful fees
title/consolidate b. 18 legible copies (containing plain copies of
all documents attached to the original copy
(SEC. 5)
of the petition)
• Contents [Rule 64.5]:
a. name of aggrieved party (petitioner)
Termination b. respondents: Commission concerned and
of Case
person(s) interested in sustaining the
judgment a quo
c. facts
RULE 63 –
d. issues involved
e. grounds and brief arguments relied upon
RELIEF AND for review
SIMILAR f. prayer for judgment annulling or modifying
REMEDIES the question judgment, etc.
g. material dates showing that it was filed on

100% UP LAW UP BAROPS 2008 Page 210 of 227


h. certification against non-forum shopping

• Findings of fact of the Commission supported
by substantial evidence shall be final and non-
• Failure to comply with foregoing requirements IV. CERTIORARI, PROHIBITION
shall be sufficient ground for dismissal.
2. Order to Comment [Rule 64.6] AND MANDAMUS
• If the SC finds the petition sufficient in form
and substance, it shall order the respondents to
file their comments on the petition within 10 Certiorari Prohibition Mandamus
days from notice thereof. GROUNDS
• Grounds for dismissal: When any When the When any
a. Petition not sufficient in form and tribunal, board proceedings of tribunal,
substance or officer any tribunal, corporation,
exercising corporation, board, officer or
b. Petition was filed manifestly for delay
judicial or board, officer or person
c. the questions raised are too unsubstantial quasi-judicial person,
to warrant further proceedings. functions has whether a. unlawfully
3. Comments of Respondents [Rule 64.7] acted: exercising neglects the
• Requirements: judicial, quasi- performance of
a. original copy with judicial, or an act which the
1) certified true copies of such material ministerial law specifically
portions of the record as are referred to functions, are enjoins as a
duty resulting
in the comment
a. without or in a. without or in from an office,
2) certified true copies of other supporting excess of its excess of its or trust or station;
papers jurisdiction; or his jurisdiction; or
b. 18 legible copies with plain copies of all or
documents attached to the original. b. unlawfully
• a copy of the comment shall be served on the b. with grave b. with grave excludes
petitioner. abuse of abuse of another from
4. Decision [Rule 64.9] discretion discretion the use and
amounting to amounting to enjoyment of a
• Case is deemed submitted for decision upon:
lack or excess lack or excess right or office to
a. filing of the comments on the petition, and of its or his of its or his which such
such other pleadings or papers as may be 1 jurisdiction other is entitled
required or allowed.
b. expiration of the period to file the AND there is no
pleadings. other plain,
o EXCEPTIONS: SC sets case for oral AND there is no speedy and
AND there is no
argument or requires parties to submit appeal or any adequate
appeal, or any
other plain, remedy in the
memoranda, plain, speedy,
speedy, and ordinary course
and adequate
2 adequate of law
remedy in the remedy in the (R65.3)
ordinary course ordinary course
of law of law
(R65.1) (R65.2)

To correct an To prevent the To compel the
act performed commission or performance of
by the carrying out of the act desired
respondent an act
Discretionary Discretionary Ministerial acts
acts and ministerial
Aggrieved Aggrieved Aggrieved

Without If respondent do not have the legal

jurisdiction power to determine the case
Excess of If respondent has the legal power to
jurisdiction determine the case but oversteps
such power
Grave abuse of If respondent has the legal power to
discretion 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)

100% UP LAW UP BAROPS 2008 Page 211 of 227


person person person c. special considerations, i.e., public welfare

3 or public policy (Jose vs. Zulueta 1961)
Those Those exercising Those exercising d. the order is a patent nullity (Marcelo vs. De
exercising judicial and/or judicial and/or Guzman 1982)
judicial or non-judicial non-judicial e. the decision in the certiorari case will avoid
quasi-judicial functions functions future litigations (St. Peter Memorial Park
functions vs. Campos 1975)
FORM OF PETITION • A motion for reconsideration must first be
-verified -verified -verified availed of before certiorari – to enable the
lower court to correct its mistakes without the
-alleging the -alleging the -alleging the
facts with facts with facts with intervention of the lower courts (BA Finance vs.
certainty certainty certainty Pineda 1982)
-PRAYER: that -PRAYER: that -PRAYER: that a. the order is a patent nullity (Vigan Elec.
judgment be judgment be judgment be Light vs. Public Service Commission 1964)
rendered rendered rendered b. the questions raised in the certiorari have
annulling / commanding the commanding the been duly raised and passed upon by the
modifying the respondent to respondent,
lower court (Fortich-Celdran vs. Celdran
proceedings of desist from immediately or
such tribunal, further some other time 1967) or are the same as those raised and
etc., and proceedings in to be specified passed upon in the lower court (Pajo vs.
granting such the action or by the court, to Ago 1960)
incidental matter specified do the act c. there is an urgent necessity for the
reliefs as law therein, or required to be resolution of the question and delay would
and justice otherwise done to protect prejudice the interests of the government
may require. granting such the rights of the (Vivo vs.Cloribel 1966)
incidental reliefs petitioner, and
d. the MR would be useless (People vs. Palacio
as law and to pay the
justice may damages 1960)
require. sustained by the e. the petitioner was deprived of due process
petitioner by and there is extreme urgency for relief
reason of the (Luzon Surety vs. Marbella 1960)
wrongful acts of f. the proceeding was ex parte in which the
the respondent. petitioner had no opportunity to object
(Republic vs. Maglanoc 1963)
-contains a
g. the issue raised is purely a question of law
certificate of
-accompanied non-forum or where the public interest is involved
by a certified shopping. (PALEA vs. PAL 1982)
-accompanied true copy of the • Questions of fact cannot be raised in an original
by a certified subject action for certiorari. Only established or
true copy of judgment, etc., admitted facts may be considered. [Suarez v.
the subject copies of all NLRC, 1998]
judgment, etc., relevant • Findings of fact of CA are not binding upon SC
copies of all pleadings and
in an original action for certiorari (Medran vs.
relevant documents, and
pleadings and a certification of CA, 1949)
documents, non-forum • Prohibition is a preventive remedy. However, to
and a shopping. prevent the respondent from performing the
certification of act sought to be prevented during the
non-forum pendency of the proceedings for the writ, the
shopping. petitioner should obtain a restraining order
and/or writ of preliminary injuction. [Regalado]
• The original action of certiorari not a substitute • Prohibition is the remedy where a motion to
for appeal (Lobite vs. Sundiam 1983). dismiss is improperly denied. [Enriquez v.
Exceptions: Macadaeg, 84 Phil 674]
a. the appeal is not a speedy and adequate • A writ of mandamus will not issue to control the
remedy (Salvadores vs. Pajarillo 1947) exercise of official discretion or judgment, or to
b. the orders were issued either in excess of alter or review the action taken in the proper
or without jurisdiction (Aguilar vs. Tan exercise of the discretion of judgment, for the
1970) writ 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
3 the fiscal of discretionary functions where his
When the petition filed relates to the acts or omissions
of a judge, court, quasi-judicial agency, tribunal, actuations are tantamount to a wilful refusal to
corporation, board, officer or person, the petitioner shall perform a required duty. [Regalado]
join, as private respondent or respondents with such • General Rule: In the performance of an official
public respondent or respondents, the person or persons duty or act involving discretion, such official
interested in sustaining the proceedings in the court; and can only be directed by mandamus to act but
it shall be the duty of such private respondents to appear
not to act in one way or the other.
and defend, both in his or their own behalf and in behalf
of the public respondent or respondents affected by the EXCEPTION: gross abuse of discretion,
proceedings. xxx manifest injustice, palpable excess of authority
If the case is elevated to a higher court by either party, [Kant Wong v. PCGG, 1987]
the public respondents shall be included therein as • Mandamus can be availed of only by the party
nominal parties. However, unless otherwise specifically who has direct legal interest in the right sought
directed by the court, they shall not appear or participate to be enforced. HOWEVER, if the question is
in the proceedings therein. [Rule 65.5] one of public right, it is sufficient to show that

100% UP LAW UP BAROPS 2008 Page 212 of 227


the petitioner is a citizen. [Tanada v. Tuvera, 139 and 139-B of the Rules of Court. The Court
1985] may impose motu proprio, based on res ipsa
loquitur, other disciplinary sanctions or
measures on erring lawyers for patently
PROCEDURE dilatory and unmeritorious petitions for
certiorari. [Rule 65.8]
1. File petition for certiorari / prohibition / 5. Service and enforcement of order or
mandamus. judgment.
• When filed: • A certified copy of the judgment rendered shall
o Not later than 60 days from notice of be served upon the court, quasi-judicial
judgment/order/resolution agency, tribunal, corporation, board, officer or
o If a motion for reconsideration/new trial is person concerned in such manner as the court
filed, the 60-day period shall be counted may direct, and disobedience thereto shall be
from notice of denial of motion. punished as contempt.
o Extension may be granted for compelling • An execution may issue for any damages or
reasons, not exceeding 15 days. [Rule costs awarded in accordance with section 1 of
65.4] Rule 39. [Rule 65.9]
• Where filed:
1) Court of Appeals
o 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.
2) Regional Trial Court, it it relates to acts /
omissions of a lower court / corporation /
board / officer / person.
3) Court of Appeals or Sandiganbayan,
whether or not it is in aid of its appellate
4) COMELEC, for election cases [Rule 65.4]

• Mandatory period:
The public respondent shall proceed with
the principal case within ten (10) days from
the filing of a petition for certiorari with a
higher court or tribunal, absent a
temporary restraining order or a
preliminary injunction, or upon its
expiration. Failure of the public respondent
to proceed with the principal case may be a
ground for an administrative charge.

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 petition within 10 days from
receipt of a copy thereof.
• Such order shall be served on the 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 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. In such
event, the court may award in favor of the
respondent treble costs solidarily against the
petitioner and counsel, in addition to subjecting
counsel to administrative sanctions under Rules

100% UP LAW UP BAROPS 2008 Page 213 of 227



• Quo warranto is the remedy to try disputes • Action against a person for usurping a public
with respect to the title to a public office. office, position or franchise
(1) name of the person who claims to be
Basis: the occupant is Challenges the right of a (2) averment of his right to the same and that
disqualified from holding person to hold office on the respondent is unlawfully in possession
the office by reason of the ground of thereof.
ineligibility or disloyalty irregularities in the • All persons who claim to be entitled to the
conduct of the elections public office/position/franchise may be made
If proceeding succeeds, Successful protestant will parties. [Rule 66.6]
respondent will be assume the office if he
ousted but petitioner will obtained a plurality of the
not assume the office valid votes VENUE


Issue: eligibility of the Issue: validity of the 3. RTC exercising jurisdiction over the territorial
respondent appointment area where the respondent or any of the
Occupant declared Court will oust the person respondents resides
ineligible/disloyal will be illegally appointed and will
4. Where Sol Gen commences action– RTC in
unseated but petitioner order the seating of the
will not be declared the person who was legally Manila, CA or SC [Rule 66.7]
rightful occupant of the appointed and entitled to
office the office. WHEN FILED

HOW COMMENCED • action against a public officer or employee for

his ouster from office – within one year after
• By a verified petition [Rule 66.1] the cause of such ouster, or the right of the
petitioner to hold office or position, arose
BY WHOM/AGAINST WHOM • action for damages sustained by reason of
usurpation – within one year after the entry
of the judgment establishing the petitioner’s
a. By Government, brought in the name of the
right to the office in question [Rule 66.11]
Republic of the Philippines, against:
• The one-year period is not interrupted by the
a. A person who usurps, intrudes into, or
prosecution of any administrative remedy as, in
unlawfully holds or exercises a public
quo warranto proceedings, no one is compelled
office, position or franchise
to resort to administrative remedies since
b. A public officer who does not or suffers an
public interest requires that the right to public
act which, by the provision of law,
office should be determined as speedily as
constitutes a ground for the forfeiture of
possible. [Fernandez v. Dela Paz, 1988]
his office
c. An association which acts as a corporation
within the Phils without being legally JUDGMENT
incorporated or without lawfully authority
so to act [Rule 66.1] • When the respondent is found guilty of
• When Solicitor General or public prosecutor usurping, intruding into, or unlawfully holding
MUST commence action: or exercising a public office, position or
1. when directed by the President of the franchise, judgment shall be rendered that
Phils. such respondent be ousted and altogether
2. when upon complaint or otherwise, he excluded therefrom, and that the petitioner or
has good reason to believe that any relator recover his costs. [Rule 66.9]
case specified in Sec. 1 can be • If judgment be rendered in favor of the person
established by proof. [Rule 66.1] averred in the complaint to be entitled to the
3. at the request and upon the relation if public office he may, after taking the oath of
another person (ex relatione), but office and executing any official bond required
leave of court must first be obtained. by law, take upon himself the execution of the
[Rule 66.3] office, and may immediately thereafter demand
• When Solicitor General or public prosecutor of the respondent all the books and papers in
MAY commence action: the respondent's custody or control
o with permission of the court appertaining to the office to which the
o at the request and upon the relation of judgment relates. The person adjudged entitled
another person to the office may also bring action against the
o officer bringing such action may first respondent to recover the damages sustained
require an indemnity for the expenses by such person by reason of the usurpation.
and costs of the action in an amount [Rule 66.10]
approved by and deposited in court.
[Rule 66.3]
2. By a person claiming to be entitled to a
public office or position, brought in his own
name, against another who usurped or
unlawfully held or exercised such public
office or position [Rule 66.5]

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VI. EXPROPRIATION therein, showing as far as practicable the

separate interest of each defendant.
4. The following must be clearly stated in the
CONCEPT AND BASIS OF EXPROPRIATION complaint , if applicable:
a. If the title to any property sought
• Eminent domain is defined as the power of the to be expropriated appears to be in
nation or a sovereign state to take, or to the Republic of the Philippines,
authorize the taking of, private property for a although occupied by private
public use without the owner’s consent, individuals;
conditioned upon payment of just b. If the title is otherwise obscure or
compensation. doubtful so that the plaintiff cannot
• The exercise of the power of eminent domain is with accuracy or certainty specify
constrained by two constitutional provisions: who are the real owners. [Rule
(1) that private property shall not be taken for 67.1]
public use without just compensation under
Article III (Bill of Rights), Section 9; and (2) ENTRY OF PLAINTIFF UPON PROPERTY
that no person shall be deprived of his/her life,
liberty, or property without due process of law • The plaintiff shall have the right to take or
under Art. III, Sec. 1. (Barangay Sindalan etc. enter upon the possession of the real property
et al. v. CA et al., 2007) involved upon:
• Rule 67 primarily governs the exercise of the 1. filing of complaint for expropriation
right of eminent by the State acting through 2. service of notice to the defendant
the national government. (Regalado) 3. Deposit with the authorized government
Expropriation by local government units is depositary an amount equivalent to the
governed by the Local Government Code of assessed value of the property for purposes
1991 (R.A. 7160) of taxation to be held by such bank subject
• Two stages in expropriation proceedings: to the orders of the court. Deposits shall be
1. Determination of the authority of the in money (legal tender) or, if the court
plaintiff to exercise the power of authorizes it, certificate of deposit of a
eminent domain and the propriety of government bank payable on demand to
its exercise in the context of the facts. the authorized government depositary.
This stage is terminated by either an order o If personal property is involved, its
of dismissal of the action or order of the value shall be provisionally ascertained
condemnation declaring that expropriation and the amount to be deposited shall
is proper and legal. These orders are final be promptly fixed by the court.
and therefore appealable. (Municipality of o After deposit, the court shall order the
Biñan v. Garcia, 1989) sheriff or other proper officer to place
2. Determination of just compensation. the plaintiff in possession of the
This is done with the assistance of not property and promptly submit a report
more than three (3) commissioners. The thereof to the court with service of
order fixing just compensation is also final copies to the parties. [Rule 67.2]
and appealable. (Ibid). Just compensation • If the ownership of the property taken is
is to be determined as of the date of the uncertain, or there are conflicting claims to any
taking of the propriety or the filing of the part thereof, the court may order any sum(s)
complaint, whichever comes first. awarded as compensation for the property to
 There is taking when the owner is actually be paid to the court for the benefit of the
deprived or dispossessed of his property; when person adjudged in the same proceeding to be
there is a practical destruction or a material entitled thereto. But the judgment shall require
impairment of the value of his property or the payment of the sum(s) awarded to either
when he is deprived of the ordinary use the defendant or the court before the plaintiff
thereof. (Ansaldo v. Tantuico, 1990) can enter upon the property, or retain it for the
 An expropriation suit is incapable of pecuniary public use or purpose if entry has already been
estimation. Accordingly, it falls within the made. [Rule 67.9]
jurisdiction of RTCs, regardless of the value of
the subject property. (Bardillon v. Bgy. Masili, ANSWER
COMPLAINT FOR EXPROPRIATION Defendant may file and Defendant shall serve his
serve notice of ANSWER within the time
• The complaint for expropriation must be appearance and a stated in the summons.
VERIFIED. manifestation that he has
• CONTENTS: no objection or defense,
specifically designating or
1. The right and purpose of expropriation
identifying the property in
2. Description of the real or personal property which he claims to be
sought to be expropriated; interested within the time
3. The complaint shall join as defendants all stated in the summons.
Thereafter, the defendant
persons owning or claiming to own, or shall be entitled to notice
occupying any part thereof or any interest of all proceedings

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affecting the same. 1. Parties can present evidence before the

commissioners and the latter have the
• GENERAL RULE: All defenses or objections not power to administer oaths or hearings
alleged in the answer are deemed waived. before them;
o EXCEPTION: The court, in the interest of 2. They can, after due notice to the parties to
justice, may allow the answer to be attend, view and examine the property
amended not later than 10 days from filing. sought to be expropriated and its
• At the trial of the issue of compensation, surroundings and may measure the same;
whether or not the defendant has EXCEPTION: when the parties agrees
previously appeared or answered, he may otherwise, the commissioners cannot view
present evidence as to the amount of the and examine the property
compensation to be paid for his property, and 3. The commissioners shall assess the
he may share in the distribution of the award. consequential damages to the property
• The answer to the complaint for expropriation taken and deduct from such consequential
shall: damages the consequential benefits derived
1. Specifically designate or identify the by the owner from the public use or
property in which he claims to have an purpose of the property taken, the
interest; operation of its franchise by the corporation
2. State the nature and extent of the interest or person taking the property. In no case
claimed; and shall the consequential benefits assessed
3. Adduce all of defendant’s objections or exceed the consequential damages
defenses to the taking of his property assessed, or the owner be deprived of the
• No counterclaim, cross-claim or third-party actual value of his property so taken. [Rule
complaint shall be alleged or allowed in the 67.6]
answer or any subsequent pleading. [Rule 4. The commissioners shall make full and
67.3] accurate report to the court of all their
ORDER OF EXPROPRIATION  The report shall be filed within 60 days from
the date the commissioners were notified of
• It declares that the plaintiff has a lawful right their appointment.
to take the property sought to be expropriated  Upon filing of the report, the clerk of court shall
for the public use or purpose described in the serve copies thereof on all interested parties,
complaint, upon payment of just compensation with notice that they are allowed ten (10) days
to be determined as of the date of the taking of within which to file objections to the findings of
the property or the filing of the complaint the report, if the parties desire. [Rule 67.7]
whichever is earlier.  After the 10-day period for objecting to the
• It is issued by the court in which the complaint commissioners’ report, the court, after hearing,
for expropriation is filed when: may:
o objections or defenses of the defendant 1. ACCEPT the report and render JUDGMENT
have been overruled, or in accordance therewith;
o the defendant raised no such defense or 2. RECOMMIT the report to the commissioners
objection, or for further report of facts;
o no party appears to defend. [Rule 67.4] 3. SET ASIDE the report and APPOINT new
4. ACCEPT the report IN PART and REJECT it
5. Make such order or render judgment s shall
 Just compensation is defined as the full and
secure to the plaintiff the property essential
fair equivalent of the property taken from its
to the exercise of his right of expropriation
owner by the expropriator. The measure is not
and to the defendant just compensation for
the taker’s gain, but the owner’s loss. To
the property so taken. [Rule 67.8]
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 JUDGMENT
the word “compensation”; to convey the idea
that the equivalent to be rendered for the • The judgment entered in expropriation
property taken shall be real, substantial, full, proceedings shall state definitely, by an
ample. In eminent domain or expropriation adequate description, the particular property or
proceedings, the general rule is that the just interest therein expropriated, and the nature of
compensation which the owner of condemned the public use or purpose for which it is
property is entitled to is the market value. expropriated. When real estate is expropriated,
Market value is “that sum of money which a a certified copy of such judgment shall be
person desirous but not compelled to buy, and recorded in the registry of deeds of the place in
an owner willing but not compelled to sell, which the property is situated, and its effect
would agree on as a price to be given and shall be to vest in the plaintiff the title to the
received therefor.” (BPI v. CA, 2004) real estate so described for such public use or
 Upon the rendition of the order of purpose. [Rule 67.13]
expropriation, the court shall appoint not more • Upon payment by the plaintiff to the defendant
than 3 competent and disinterested persons as of the compensation fixed by the judgment,
commissioners to ascertain and report to the with legal interest thereon from the taking of
court the just compensation for the property the possession of the property, or after tender
sought to be taken. [Rule 67.5] to him of the amount so fixed and payment of
 Powers and duties of commissioners: the costs, the plaintiff shall have the right to
enter upon the property expropriated and to
appropriate it for the public use or purpose

100% UP LAW UP BAROPS 2008 Page 216 of 227


defined in the judgment, or to retain it should

he have taken immediate possession thereof FLOWCHART 1
under Sec. 2. [Rule 67.10]
• The right of the plaintiff to enter upon the File VERIFIED Complaint for
property of the defendant and appropriate the
same for public use or purpose shall not be
delayed by an appeal from the judgment. But if
the appellate court determines that plaintiff has ENTRY by the plaintiff to the property
no right of expropriation, judgment shall be sought to be expropriated
rendered ordering the RTC to forthwith enforce
the restoration to the defendant of the
possession of the property, and to determine
the damages which the defendant sustained
and may recover by reason of the possession
taken by the plaintiff. [Rule 67.11]
• (See flowchart next page)
Defendant may
DEFENSES file and serve a
Defendant’s action AND NO notice of
OBJECTIONS appearance and
that effect,
designating or
identifying the
YES property in whic
he claims to be
interested withi
Defendant shall serve
the time stated
his ANSWER within
the summons
the time stated in the
Objections and summons.

may be issued by the court

(see flowchart 2)



it if
100% UP LAW UP BAROPS 2008 Page 217 of 227


The court shall issue ORDE

D (3) competent and disinteres
persons as COMMISSIONE

Orders of appointment shal

Objections shall served on parties
be filed within 10
days from service
of order of
appointment and
shall be resolved
within 30 days
after all
commissioners Objections to
have received appointment of
copies of




• The cause of action in a foreclosure suit is

generally the non-payment of the mortgage
loan, but it may be on other grounds which
under the contract warrant the foreclosure,
such as the violation of the other conditions
• Foreclosure may be made:
1. judicially – governed by Rule 68
2. extrajudicially – proper only when so
provided in contracts in accordance with
Act. No. 3135; governed by A.M. No. 99-
• A foreclosure action must be brought in the
RTC of the province where the land or any part
thereof is situated. If a mortgage contract
covers several distinct parcels of land situated
in different provinces, the action may be
brought in the RTC of any of the provinces and
the judgment will be enforceable against any of
the parcels of land involved. [Monte de Piedad
v. Rodrigo, 56 Phil 301]


1. Date and due execution of the mortgage;

2. Date of assignment of mortgage, if any;

100% UP LAW UP BAROPS 2008 Page 218 of 227


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
NO 68.3]



• Claims to be satisfied by the proceeds of the

public sale of mortgaged property (in order):
1. Costs incurred in the sale of property
2. Claim of the person foreclosing the
3. 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 junior
encumbrancers, if any  the residual amount
shall be given to the mortgagor or his agent, or
to the person entitled to it. [Rule 68.4]
• If the proceeds of the sale is less than the
3. The names and residences of the mortgagor
amount of the claims to be satisfied  the
and mortgagee;
person foreclosing the property may move for a
4. Description of the mortgaged property;
5. Statement of the date of the note or other
confirming the foreclosure sale, to recover the
documentary evidence of the obligation secured
amount of the deficiency in his claim.
by the mortgage;
6. Amount claimed to be unpaid;
7. The names and residences of all persons having DEFICIENCY JUDGMENT
or claiming an interest in the property
subordinate in right to that of the holder of the • Definition. A judgment against a debtor for the
mortgage, all of whom shall be made unpaid balance of the debt if a foreclosure sale
defendants in the action. [Rule 68.1] or a sale of repossessed personal property fails
to yield the full amount of the debt due; also
JUDGMENT termed a deficiency decree. (Black’s Law
• Sec. 6 provides for a deficiency judgment which
• If upon the trial, the court shall find the facts
shall be rendered, on motion, when the
set forth in the complaint to be true, it shall
foreclosure sale did not produce proceeds
ascertain the amount due to the plaintiff upon
sufficient to satisfy the judgment.
the mortgage debt or obligation, including
o In extrajudicial foreclosure, the mortgagee
interest and other charges as approved by the
can also recover by action any deficiency in
court, and costs, and shall render judgment for
the mortgage account which was not
the sum so found due and order that the same
realized in the foreclosure sale. [PNB v. CA,
be paid to the court or to the judgment obligee
within a period of not less than 90 days
• A motion for deficiency judgment may be made
nor more than 120 days from the entry of
only after the sale and after it becomes known
judgment (“equity of redemption”).
that a deficiency exists. (Governor of the
• In default of such payment the property shall
Philippine Islands v. Torralba Vda. de Santos,
be sold at public auction to satisfy the
judgment. [Rule 68.2]
• No deficiency judgment may be rendered
• When the defendant, after being directed to do
against the owner who is not a mortgagor and
so, fails to pay the amount of the judgment
has not assumed personal liability for the debt.
within the period specified therein, the court,

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The remedy is an ordinary action against the VIII. PARTITION

debtor. (Philippine Trust Co. v. Echaus Tan
Siua, 1929)
• Partition of property may be:
• If the debtor dies, the deficiency may be filed
1. Extrajudicial – by agreement
as a claim against his estate. (Rule 86.7)
2. Judicial – compulsory; governed by Rule 69
• Even if the parties resorted to judicial partition,
REGISTRATION [Rule 68.7] they may still make an amicable partition of the
property. [Secs. 2 and 12]
• A CERTIFIED COPY of the final order confirming • Rule 69 applicable to partitions of estates
the sale shall be registered in the Registry of composed of personal property, or of both real
Deeds. and personal property. [Sec. 13]
• Stages in an Action for Partition:
IF NO RIGHT OF IF A RIGHT OF 1. Determination of the propriety of
partition. This involves a determination of
The Certificate of Title in The Certificate of Title in
whether the subject property is owned in
the name of the the name of the
mortgagor shall be mortgagor shall NOT be common and whether all the co-owners are
cancelled, and a new cancelled, but the made parties in the case. The order may
one issued in the name Certificate of Sale and the also require an accounting of rents and
of the purchaser. order confirming the sale profits recovered by the defendant. This
shall be registered and a order of partition is appealable. (Miranda v.
brief memorandum Court of Appeals, 1976) If not appealed,
thereof shall be made by then the parties may partition the common
the Registrar of Deeds
property in the way they want. If they
upon the certificate of
title cannot agree, then the case goes into the
second stage. However, the order of
IF THE PROPERTY IS IF THE PROPERTY IS accounting may in the meantime be
REDEEMED NOT REDEEMED executed. (De Mesa v. CA, 1994)
The Deed of Redemption The FINAL Deed of Sale 2. The actual partitioning of the subject
shall be registered with executed by the sheriff in property. This is also a complete
the Registry of Deeds favor of the purchaser at proceeding and the order or decision is
and a brief memorandum the foreclosure sale shall appealable.
thereof shall be made by be registered with the • When there was a prior partition, the fact that
the Registrar of Deeds Registry of Deeds.
the share of each co-heir has not been
on said certificate of The Certificate of Title in
title. the name of the technically described and the title over the
mortgagor shall be whole lot remains uncancelled does not negate
cancelled and a new one such partition. There can be no partition again
shall be issued in the because there is no more common property.
name of the purchaser. (Noceda v. CA, 1999)
• Oral partition of land when the same is fully
• Right of redemption is the right granted to the consummated is valid and binding upon the
debtor-mortgagor, his successor-in-interest or parties thereto. (Crucillo v. IAC, 1999)
any judicial creditor of said debtor-mortgagor • All persons considered as co-owners and
or any person having a lien in the property interested in the property to be partitioned are
subsequent to its mortgage or deed of trust, indispensable parties to the action and must be
under which the property is sold, to redeem the impleaded. (Sepulveda v. Pelaez, 2005)
property within one (1) year from the • Parties to a partition proceeding, who elected
registration of the sheriff’s certificate of to take under partition, and who took
foreclosure sale. (De Castro v. Intermediate possession of the portion allotted to them, are
Appellate Court, 1988) estopped to question title to portion allotted to
• The right of redemption in relation to a another party. A person cannot claim both
mortgage is understood in the sense of a under and against the same instrument. In
prerogative to re-acquire mortgaged property other words, they accepted the lands awarded
after registration of the foreclosure sale. It them by its provisions, and they cannot accept
exists only in the case of the extrajudicial the decree in part, and repudiate it in part.
foreclosure of the mortgage. No such right is They must accept all or none. Parties who had
recognized in a judicial foreclosure, except received the property assigned to them are
only where the mortgagee is the Philippine precluded from subsequently attacking its
National Bank or a bank or banking institution. validity of any part of it. (Maglucot-aw et al. v.
(Huerta Alba Resort, Inc. v. CA, 2000) Maglucot et al., 2000)
However, the mortgagor has the “equity of • Partition may be inferred from circumstances
redemption.” sufficiently strong to support the presumption.
• Equity of Redemption is the right of the Thus, after a long possession in severalty, a
defendant mortgagor to extinguish the deed of partition may be presumed. It has been
mortgage and retain ownership of the property held that recitals in deeds, possession and
by paying the amount fixed in the decision of occupation of land, improvements made
the court within 90 to 120 days after entry of thereon for a long series of years, and
judgment or even after the foreclosure sale but acquiescence for 60 years, furnish sufficient
prior to its confirmation. (Limpin v. evidence that there was an actual partition of
Intermediate Appellate Court, 1988) 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

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the name of one of the tenants in common, and • A party shall recover from another his just
there is no evidence of any subsequent claim of share of rents and profits received by such
a tenancy in common, it may fairly be inferred other party from the real estate in question,
that there has been a partition and that such and the judgment shall include an allowance for
lot was set off to him whose name it bears. such rents and profits. [Rule 69.8]
(Maglucot-aw et al. v. Maglucot et al., supra) • A final order decreeing partition and accounting
may be appealed by any party aggrieved
COMPLAINT thereby. [Rule 69.2]

• Filed by person having the right to compel the PARTITION BY COMMISSIONERS

partition of real estate.
• Contents: • If the parties are unable to agree upon the
1. Nature and extent of the complainant’s title
partition, the court shall appoint not more than
2. Adequate description of the real estate of which
the partition is demanded 3 competent and disinterested persons as
3. All other persons interested in the property must commissioners to make the partition,
be impleaded. [Rule 69.1] commanding them to set off to the plaintiff and
to each party in interest such part and
VENUE proportion of the property as the court shall
direct. [Rule 69.3]
• Actions for partition should be filed in the RTC of the • Duties of Commissioners [Rule 69.4]:
province where the property or part thereof is 1. view and examine the real estate, after due
situated. If several dintinct parcels of land are notice to the parties to attend at such view
situated in different provinces, venue may be laid in and examination
the RTC of any of said provinces. [Pancho v. 2. hear the parties as to their preference in
Villanueva, 99 Phil 611] the portion of the property to be set apart
to them and the comparative value thereof
WHEN TO FILE 3. set apart the same to the parties in lots or
parcels as will be most advantageous and
• The right of action to demand partition does not equitable, having due regard to the
prescribe [De Castro v. Echarri, 20 Phil 23], EXCEPT improvements, situation and quality of the
where one of the interested parties openly and different parts thereof.
adversely occupies the property without recognizing
• If the commissioners should determine that the
the co-ownership [Cordova v. Cordova, 102 Phil
1182] in which case, acquisitive prescription may set
real estate cannot be divided without prejudice
in. to the interests of the parties, the court may
• If a co-owner repudiates the co-ownership and order that the property be assigned to one of
makes known such repudiation to the other co- the parties willing to take the same PROVIDED
owners, then partition is no longer a proper remedy he pays to the other parties such amounts as
of the aggrieved co-owner. He should file an accion the commissioners deem equitable
reivindicatoria, which is prescriptible. (Roque v. IAC, O EXCEPTION: if one of the parties asks that
the property be sold instead of being so
assigned, then the court shall ORDER the
ORDER OF PARTITION commissioners to sell the real estate at
pubic sale under such conditions and
• After trial, if the court finds that the plaintiff has the within such time as the court may
right to the property subject of partition, it shall issue determine. [Rule 69.5]
an order demanding the partition of the real estate
• The commissioners shall make a full and
among all the parties in interest.
accurate report to the court of all their
proceedings as to the partition, or the
PARTITION BY AGREEMENT assignment of real estate to one of the parties
or the sale of the same.
• Upon filing the report, the clerk of court shall
After the issuance of the order of partition,
the parties will then be asked if they agree serve copies thereof on all interested parties
to make partition of the property among with notice that they are allowed 10 days
themselves. within which to file objections to the findings of
the report, if they so desire.
• No proceeding had before or conducted by the
If they agree, proper instruments of commissioners shall pass the title to the
conveyance will be executed to effect the property or bind the parties until the court
partition. accepts the commissioners’ report and
rendered judgment thereon. [Rule 69.6]
• Upon the expiration of the 10-day period, or
After the execution of instruments of even before the expiration of such period but
conveyance, the court shall confirm the after the interested parties filed their objections
partition through a final order. to the report/statement of agreement, the
court, upon hearing, may:
1. ACCEPT the commissioners’ report and
The final order of partition and the render JUDGMENT based upon it.
instruments of conveyance shall be 2. RECOMMIT the report to the
registered with the Registry of Deeds where commissioners for further report of
the property is situated. [Rule 69.2] 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

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5. Make such order and render such IX. FORCIBLE ENTRY AND
judgment as shall effectuate a fair and
just partition of the real estate or of its UNLAWFUL DETAINER
value, if the property is assigned or
sold between the several owners
thereof. [Rule 69.7] ACTIONS FOR THE RECOVERY OF
1. Accion Interdictal –the summary action for
forcible entry (detentacion) where the
defendant’s possession of property is illegal ab
IF ACTUAL Judgment shall Judgment shall
initio, or the summary action for unlawful
PARTITION state definitely, vest in each
IS PROPERLY by metes and party to the detainer (desahucio) where the defendant’s
MADE bounds and action in possession was originally lawful but ceased to
adequate severalty the be so by the expiration of his right to possess,
description, the portion of the both of which must be brought within one
particular portion real estate year from the date of actual entry to the land,
of the real estate assigned to him. in case of forcible entry, and from the date of
assigned to each last demand, in case of unlawful detainer, in
the proper municipal trial court or
IF THE Judgment shall Judgment shall
WHOLE state the fact of vest in the party metropolitan trial court.
PROPERTY IS such payment making the - Nature:
ASSIGNED and of the payment the a. special civil action involving realty;
TO ONE OF assignment of whole of the real b. subject to the Rules on Summary
THE PARTIES the real estate to estate free from Procedure; [Rule 70.3]
AFTER the party making any interest on c. under the original exclusive jurisdiction of
PAYMENT the payment. the part of the first level courts;
other parties.
d. nature of the action is determined by the
IF PROPERTY Judgment shall Judgment shall
IS SOLD AND state the name vest the real
allegation of the complaint and the
SALE IS of the purchaser estate in the character of the relief sought; (Abrin v.
CONFIRMED or purchasers purchaser(s), Campos, 1991)
BY THE and a definite making the e. one co-owner may institute the action.
COURT description of payment(s) free 2. Accion Publiciana - is a plenary action for
the parcels of from the claims recovery of the right to possess and which
real estate sold of any parties to should be brought in the proper regional trial
to each the action.
court when the dispossession has lasted for
more than one year.
3. Accion Reivindicatoria - or accion de
reivindicacion, seeks the recovery of ownership
• A certified copy of the judgment shall in either and includes the jus utendi and the jus fruendi,
case be recorded in the registry of deeds of the which must be brought in the proper regional
place in which the real estate is situated. [Rule trial court. It is thus an action whereby
69.11] plaintiff alleges ownership over a parcel of land
and seeks recovery of its full possession.
[Javier v. Veridiano, 1994]


• 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
• 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)


• resorted to when a lessor, vendor, vendee, or

other person against whom the possession of
any land or building is unlawfully withheld,

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after the expiration or termination of the right action for unlawful detainer. (Penas, Jr. v. CA,
to hold possession by virtue of an express or 1994)
implied contract. • Refusal to collect or accept rentals is not a
• may also be brought by the legal defense. There must be consignation. (Uy v.
representative or assigns of any such lessor, CA, 1989)
vendor, vendee, or other persons.
• must be brought at any time within 1 year after FORCIBLE ENTRY UNLAWFUL DETAINER
the unlawful withholding of possession in the Possession becomes Possession was lawful at
proper Municipal Trial Court against the person unlawful right from the first but later becomes
unlawfully withholding possession or persons very start (i.e. from the illegal, as when the lease
time of entry) as he contract has expired and
claiming under them.
acquires possession by the lessee refuses to
• action must be for the restitution of possession FISTS. vacate the premises
of property together with damages and costs. despite demand.
[Rule 70.1] The deprivation of The unlawful withholding
• commenced by lessor only after (1) demand to physical possession of of possession is made
pay or comply with the conditions of the lease land and building is after the expiration or
and to vacate is made upon the lessee, or (2) effected through force, termination of the right to
by serving written notice of such demand upon intimidation, strategy, hold possession under any
threat or stealth contract, express or
the person found on the premises, or (3) by
(FISTS). implied.
posting such notice on the premises if no
The issue centers on The issue centers on
person be found thereon, and the lessee fails to who was in prior whether the defendant’s
comply therewith after 15 days in the case of possession de facto. right to possess has
land or 5 days in the case of buildings. [Rule expired or not.
70.2] Previous demand upon Previous demand to
o EXCEPTIONS (prior demand not required): defendant to vacate not vacate required
a. Where purpose of the action is to required. (jurisdictional).
terminate the lease by reason of the The plaintiff must allege The plaintiff need not be
and prove that he was in prior physical
expiry of its term, and is not for failure
in prior physical possession.
to pay rentals or comply with the terms
possession of the
of the lease contract. [De Santos v. premises until deprived
Vivas, 96 Phil 538] thereof.
b. When the purpose of the suit is not for 1-year period counted 1-year period counted
ejectment but for the enforcement of from date of actual from date of last demand
the terms of the contract. [Guanson v. entry on the land. or last letter of demand.
Ban, 77 Phil 7]
c. When the defendant is not a tenant but
a mere intruder. [id] PLEADINGS
• Demand upon a tenant may be oral. (Jakihaca
v. Aquino, 1990) • Must be verified. [Rule 70.4]
• A person who occupies the land of another at • Allowed pleadings [Rule 70.4]:
the latter's tolerance or permission, without 1. Complaint
any contract between them is necessarily 2. Compulsory Counterclaim pleaded in the
bound by an implied promise that he will answer
vacate upon demand, failing which, an action 3. Cross-claim pleaded in the answer
for unlawful detainer may be instituted against 4. Answer
him. (Dakudao v. Consolacion, 1983) • Prohibited pleadings and motions [Rule 70.13]:
• This rule as to tolerance does not hold true in a 1. Motion to dismiss
case where there was forcible entry at the EXCEPTIONS:
start, but the lawful possessor did not attempt a. Motion to dismiss based on lack of
to oust the intruder for over 1 year, and only jurisdiction over the subject-matter
thereafter filed forcible entry suit following b. Motion to dismiss for failure to comply
demand to vacate. (Muñoz v. CA, 1992) with section 12 (referral to conciliation)
• Tolerance must be presented right from the 2. Motion for a Bill of Particulars
start of possession sought to be recovered to 3. Motion for New Trial
categorize a cause of action as one of unlawful 4. Motion for reconsideration of a judgment
detainer. (Refugia v. CA, 1996) 5. Motion for reopening of trial
• When failure to pay rent or comply with the 6. Petition for relief from judgment
condition of lease is the ground for ejectment, 7. Motion for extension to file pleadings,
plaintiff should give 2 demands (which may be affidavits or other papers
embodied in 1 demand letter): 8. Memoranda
1. demand to pay rental or comply with 9. Petition for Certiorari, Mandamus or
conditions of the lease, and if this is not Prohibition against any interlocutory order
complied with, issued by the court
2. demand to vacate (Zobel v. Abreu, 1956) 10. Motion to declare defendant in default
• Notice and demand to vacate is required on a 11. Dilatory motion for postponement
lease on a month-to-month period to render 12. Reply
effective the termination of the lease upon the 13. Third-party complaints
expiration of the month, and prevent an 14. Interventions
implied renewal of the lease. (Rivera v.
Florendo; Yap v. Cruz, 1992) PROCEDURE
• An alternative demand to either renew the
expired lease contract at a higher rental rate or
1. Filing of complaint.
vacate is not a definite demand to vacate and
therefore, insufficient basis for the filing of an

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2. After the court has examined the allegations in within 5 days after the termination of the
the complaint and supporting evidence attached to same.
the same, the court may: • Contents of the Order:
a. DISMISS the case outright based on the a. Whether the parties have arrived at an
grounds for dismissal for ordinary civil amicable settlement, and if so, terms
actions apparent in the complaint, or thereof;
b. ISSUE SUMMONS, if the no ground for b. The stipulations or admissions entered into
dismissal is found. [Rule 70.5] by the parties;
• Cases requiring referral to conciliation, where c. Whether, on the basis of the pleadings and
there is no showing of compliance with such the stipulations and admissions made by
requirement, shall be dismissed without the parties, judgment may be rendered
prejudice, and may be revived only after that without the need of further proceedings, in
requirement have been complied with. [Rule which event the judgment shall b rendered
70.12] within 30 days from issuance of the order;
3. The defendant shall file his ANSWER and serve d. A clear specification of material facts which
a copy of it to the plaintiff within 10 days from remain controverted;
service of summons. [Rule 70.6] e. Such other matters intended to expedite
• Failure of the defendant to answer within the the disposition of the case. [Rule 70.9]
period provided above shall give power to the 6. The parties shall submit affidavits of their
court, motu propio or on motion, to render witnesses and other evidence on the factual issues
judgment as may be warranted by the facts defined in the order, together with their position
alleged in the complaint and limited to what is papers setting forth the law and the facts relied
prayed for therein. [Rule 70.7] upon by them within 10 days from receipt of
• Affirmative and negative defenses not pleaded the order. [Rule 70.10]
in the answer are deemed waived. • Affidavits required to be submitted shall state
o EXCEPTION: lack of jurisdiction over the only facts of direct personal knowledge of
subject matter. the affiants which are admissible in evidence,
• Cross-claims and compulsory counterclaims not and shall show their competence to testify to
pleaded in the answer shall be barred. the matters stated therein.
o Answers to the counterclaims or cross- • Violation of this requirement may subject the
claims shall be served and filed within 10 party or the counsel who submits the same to
days from service of the answer in which disciplinary action and shall be cause to
they are pleaded. expunge the inadmissible affidavit or portion
• When the defendant raises the defense of thereof from the records. [Rule 70.14]
ownership in his pleadings, and the question of 7. Judgment
possession cannot be resolved without deciding • GENERAL RULE: The court shall render
the issue of ownership, the issue of ownership judgment within 30 days from the date of its
shall be resolved ONLY to determine the issue receipt of the affidavits and position papers OR
of possession. [Rule 70.16] the expiration of the period for filing the same.
• Where there is a defense of tenancy, there [Rule 70.11]
must be a preliminary hearing on the question o EXCEPTION: Should the court find it
of tenancy relations. (Bayog v. Natino, 1996) If necessary to clarify certain material facts, it
there is a prima facie showing of tenancy, the may during the 30-day period issue an
court should dismiss the case for lack of ORDER specifying the matters to be
jurisdiction (jurisdiction belongs to the DARAB). clarified and require the parties to submit
(Baranda v. Padios, 1987) affidavits or other evidence on the said
4. Not later than 30 days after the last answer is matters within 10 days from receipt of said
filed, a PRELIMINARY CONFERENCE shall be held. order. Judgment shall be rendered within
• Rule 18 applicable. 15 days after receipt of the last affidavit or
• Effects of failure to appear: the expiration of the period for filing the
same. [Ibid.]
WHEN THE o The court shall not resort to the foregoing
DEFENDANT DOES procedure just to gain time for the
NOT APPEAR rendition of the judgment. [Id.]
It shall be a cause for • If the trial court finds that the allegations of the
the dismissal of his
complaint are TRUE, it shall render judgment in
All cross-claims shall be favor of the plaintiff for the:
dismissed. a. restitution of the premises,
The defendant who The plaintiff shall be b. the just sum due as arrears of rent or
appears in the absence entitled to judgment. reasonable compensation for the use and
of the plaintiff shall be (This is true when there occupation of the premises.
entitled to the judgment is only one defendant or c. attorney’s fees and costs. [Rule 70.17]
on his counterclaim. when all of the • If the court finds that the allegations of the
defendants did not
plaintiffs are NOT TRUE, it shall render
judgment for the defendant to recover his
costs. [Ibid.]
• GENERAL RULE: No postponement of the
• The judgment rendered in an action for forcible
preliminary conference shall be granted.
entry shall be conclusive with respect to the
o EXCEPTION: Highly meritorious grounds
possession only, and it shall not in any way
and without prejudice to such sanctions as
affect the title or ownership of the land or
the court in the exercise of sound discretion
building. Hence, such judgment shall not bar an
may impose on the movant. [Rule 70.8]
action between the same parties with respect
5. The court shall issue an ORDER stating matters
to the title of the land or building.
taken up during the preliminary conference

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• The judgment or final order shall be appealable X. CONTEMPT

to the appropriate RTC. [Rule 70.18]
8. Execution of judgment
• GENERAL RULE: If judgment is rendered DEFINITION
against a defendant, execution shall issue
immediately. [Rule 70.19 and 70.21] • Contempt of court is a defiance of the
o EXCEPTION: Appeal has been duly authority, justice or dignity of the court, such
perfected by the defendant and bond has conduct as tends to bring the authority and
been posted. administration of the law into disrespect of, to
• Although immediately executory, the judge interfere with, or prejudice parties litigant or
should not order immediate execution in his their witnesses during litigation. It is defined as
decision. (Lu v. Siapno, 2000) There must be a disobedience to the court by setting up an
notice of the judgment (Dy v. CA, 1991) and a opposition to its authority, justice and dignity.
motion with notice to the adverse party. (Kaw It signifies not only a willful disregard or
v. Anunciacion, 1995) disobedience to the court’s order but such
• Procedure for staying the execution of conduct as tends to bring the authority of the
judgment: court and the administration of law into
a. defendant perfects his appeal in due time; disrepute or in some manner to impede the due
b. defendant files a sufficient supersedeas administration of justice. (Heirs of Trinidad de
bond approved by the Municipal Trial Leon Vda. de Ramos v. Court of Appeals, 2004)
Court; and • Direct Contempt (Contempt In Facie Curiae) –
c. during the pendency of the appeal, he a misbehavior committed in the presence of or
deposits with the appellate court the so near a court or judge so as to obstruct or
amount of rent due from time to time interrupt the proceedings before the same,
under the contract, if any, on or before the including:
10th day of each succeeding month. [Rule o disrespect toward the court
70.19] o offensive personalities toward others
o BUT upon motion of the plaintiff within 10 o refusal to be sworn or to answer as a
days from the perfection of the appeal to witness or to subscribe an
the RTC, the court may still issue a affidavit/deposition when lawfully
preliminary mandatory injunction to restore required to do so.
the plaintiff in possession if the court is - can be punished summarily without
satisfied that the defendant’s appeal is hearing.
frivolous or dilatory, or that the appeal of - It is conduct directed against or assailing
the plaintiff is prima facie meritorious. the authority and dignity of the court or a
[Rule 70.20] judge, or in the doing of a forbidden act.
[Encinas v. National Bookstore, 2005; Rule
• Indirect Contempt (Constructive Contempt)
– a misbehavior perpetrated outside of the
• The court may grant preliminary injunction in
sitting of the court [Patricio v. Suplico,
accordance with Rule 58 to prevent the
defendant from committing further acts of
– Acts of indirect contempt:
dispossession against the plaintiff.
a. Misbehavior of an officer of the court in the
• A possessor deprived of his possession may
performance of his official duties or in his
moved for a preliminary mandatory
official transactions;
injunction within 5 days to restore him in hi
b. Disobedience of or resistance to a lawful
possession of the property. The court then shall
writ, process, order, or judgment of a
decide the motion within 30 days from the
court, including the act of a person who,
filing thereof. [Rule 70.15]
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;
d. Any improper conduct tending, directly or
indirectly, to impede, obstruct or degrade
the administration of justice;
e. Assuming to be an attorney or an officer of
the court, and acting as such without
f. Failure to obey a subpoena duly served;
g. The rescue or attempted rescue, of a
person or property in the custody of an
officer by virtue of an order or process of a
court held by him. [Rule 71.3]

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CONTEMPT b.) In all other
How Can be committed Can be committed cases, by a
Committed only in the presence anywhere as long as VERIFIED PETITION.
of or so near a court the acts mentioned (If the contempt
or judge. in Sec. 3 are done. charges arose out of
or are related to a
Nature of The person guilty of The person guilty of principal action
Proceedings misbehavior is misbehavior may be pending in the court,
summarily adjudged punished only after the petition for
by the court against charge in writing has contempt shall allege
which the contempt been filed, and an that fact, but said
was committed at opportunity given to petition shall be
the very moment of the accused to be docketed, heard and
the perpetration. heard by himself or decided separately,
[Rule 71.1] counsel unless the court in
[Rule 71.3] its discretion orders
the consolidation of
Punishment If the contempt is If the contempt is the contempt charge
directed against an directed against an and the principal
RTC, a court of RTC, a court of action for joint
equivalent or higher equivalent or higher hearing and
rank: rank: decision.)
[Rule 71.4]

Remedy No appeal, but May be appealed to

subject to certiorari the proper court as
or prohibition. in criminal cases, but
FINE = not FINE = not
[Rule 71.2] execution shall not
exceeding P2,000; or exceeding P30,000;
be suspended until
BOND is filed.
[Rule 71.11]
not exceeding 10 not exceeding 6
days; or both months; or both
Procedure for Indirect Contempt
[Secs. 4-6]
Who initiates court motu propio party
If the contempt is If contempt is
How it is By ORDER or any By a VERIFIED
directed against a directed against a
lower court: lower court:
requiring supporting
respondent to particulars and
FINE = not FINE = not show cause why certified true copy
exceeding P200; or exceeding P5,000; or he should not be of documents or
held in contempt. papers involved
and full compliance
with the
not exceeding 1 day; not exceeding 1 filing initiatory
or both month; or both pleadings in
[Rule 71.1] [Rule 71.7] ordinary civil
How Summarily adjudged a.) By the court
proceedings by the court against motu propio thru an
Where it is When the contempt is directed against
commenced which the contempt ORDER or any
initiated an RTC or equivalent or higher rank:
is directed and FORMAL CHARGE
Same court
punished there and
then. When the contempt is directed against a
[Rule 71.1] 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,

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

• Two Aspects of Contempt of Court:

1. Civil Contempt is the failure to do
something ordered to be done by a court or

100% UP LAW UP BAROPS 2008 Page 226 of 227


a judge for the benefit of the opposing

party therein. [People v. Godoy, 1995];
remedial or compensatory in nature;
instituted for the benefit of private party.
2. Criminal Contempt is conduct directed
against the authority and 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 authorized to punish a contempt
against another. [Igot v. Meralco, 200)]
• Quasi-judicial agencies that have the power to
cite persons for indirect contempt pursuant to
Rule 71 can only do so by initiating them in the
proper RTC. It is not within their jurisdiction
and competence to decide the indirect
contempt cases. These matters are still within
the province of the RTCs. [LandBank v. Listana,

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