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Remedial Law Review

Civil Procedure

Prof. Antonio R. Bautista

This is the Remedial Law Reviewer for the class of Prof. Antonio R. Bautista,
as updated by the Class of 2001. This reviewer is now CivPro 1997 Rules-compliant,
and takes into account the pertinent substantive laws that have been passed as of
this date, as well as Sirs latest comments in his lectures.

I.

INTRODUCTION

Remedial law is also known as adjective lawyer or procedural law. Prof. Bautista likes to call
remedial law as the lawyers law the rules of the lawyers game. Even if you are not in litigation, one
needs to know remedial law. For example, in contract drafting, it really helps to know remedial law as the
lawyer can anticipate how the contract would stand in court. In fact, the great disparity of lawyers lies
largely due to their knowledge or lack of knowledge of remedial law.
The goals of remedial law are:
1. uniformity
2. stability
3. predictability
Our law provides for the so-called Katarungang Pambarangay. In these proceedings, anyone
can appear except lawyers. Prof. Bautista thinks this can be challenged on the ground that it violates the
Equal Protection Clause.
Many of the provisional remedies found in the Philippine Rules of Court have been declared
unconstitutional in the U.S. In the Philippines, it is the Supreme Court which promulgated the Rules of
Court. In the U.S., it is Congress which does so. Therefore, it seems highly unlikely that our Supreme
Court will declare their own Rules of Court as unconstitutional.
In remedial law the following laws are important:
1. Rules of Civil Procedure
2. BP 129
3. Judiciary Act of 1948 many of these provisions have not been repealed
In San Miguel v. Sec. of Labor, the Supreme Court said that the Supreme Court cannot be
deprived of its certiorari jurisdiction.
In the case of St. Martin Funeral Homes and Fabian v. Desierto, the Supreme Court said
that the Supreme Courts jurisdiction cannot be increased.
The Constitution has given the Supreme Court rule-making power.
Brief Historical Outline of Remedial Law
General Order 58 The U.S. uprooted the Spanish procedure and replaced it with their
own rules since the Spanish system was so inefficient and abusive.
Ist few acts of Philippines Commission was Act 190. This act overhauled procedural
law. It codified the rules on civil and special procedure.

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Prof. Antonio R. Bautista

1935 Constitution vested rule making power in the Supreme Court; there was a
transitory provision which provided that until the Rules of Court have been
promulgated, the existing statutes (Gen Ord. 58, Act 190 and some other
statutes) shall first constitute the temporary Rules of Court.
1940 Ist Rules of Court (Rule-making power cannot modify substantive rights)
1964 next revision
1985 Rules on Criminal Procedure
1988 Changes on the Rules on Evidence
1997 Rules on Civil Procedure
2000 New Criminal Procedure
The Supreme Court from time to time, amends the rules on a case to case basis.
Furthermore, the Supreme Court issues circulars.

II.

JURISDICTION

It is hard to conceive how any system of law which institutionalizes a mode of settling disputes
cannot have a concept of jurisdiction. It is a fundamental concept. The concept of jurisdiction is not easy
to grasp. It is elastic and admits of many meanings. It is elusive. It is sometimes confused with
mootness, standing, ripeness, etc.
Furthermore, lack of cause of action is often times confused with lack of jurisdiction over the
subject matter. Generally, a judgment which is final is not vulnerable to attack. If a court rendered
judgment without subject matter jurisdiction, the judgment is void ab initio. Thus the voidness can be
raised collaterally. In fact, one of the grounds for annulment of judgment under Rule 47 is lack of
jurisdiction over the subject matter. In one case, the Supreme Court said that jurisdiction over the subject
matter is the power to hear and decide a case with binding and enforceable effect. Without this binding
and enforceable effect, the proceedings would be useless.
There is a distinction between the competence of the court to entertain an action and the power
to render a judgment on the merits.
One outstanding feature of subject matter jurisdiction which is stressed is that it is conferred by
the legislature. Thus, courts cannot be vested or ousted by jurisdiction over the subject matter by the
action of the parties. Sec. 2, Art. VIII of the 1987 Constitution provides that the Congress shall have the
power to create courts. Thus, it is only Congress which has the power to sole power to do so. Therefore,
Congress has plenary power to create courts and define jurisdiction. However, there are limitations.
Congress cannot diminish the jurisdiction of the Supreme Court. Neither can Congress undermine the
security of tenure of the judges.
Judicial power is vested in the courts. How much judicial power is vested in these courts is up to
congress. Which courts exercise which judicial power is also up to Congress.

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Prof. Antonio R. Bautista

Features of subject matter jurisdiction:


1. conferred by law
2. can be raised at anytime
3. to be determined by the allegations of the case
4. determined by the allegations in the pleadings, not the evidence
5. sometimes is territorial
Problem: A shipment of goods by sea from HongKong to Manila is covered by a bill of lading. The
consignee is unhappy with the shipment. He brings an action against the shipper and the carrier in
Manila. The stipulation in the contract provides that cases should be filed in HongKong. The defendants
filed a Motion to Dismiss on the ground that the Manila court has no jurisdiction. Rule on the Motion to
Dismiss.
Answer: Denied. Jurisdiction is vested by law, and the parties cannot stipulate otherwise.
Prof. Bautista however adds that there is a case in Private International Law which says that in a
multi-state transaction, contracting parties may stipulate the choice of forum.
Problem: A shipment of goods by sea from HongKong to Manila is covered by a bill of lading. The
consignee is unhappy with the shipment. He brings an action against the shipper and the carrier in
Manila. The stipulation in the contract provides for an arbitration clause. The defendants filed a Motion to
Dismiss on the ground of failure to comply with condition procedure arbitration. Rule on the Motion to
Dismiss.
Answer: Denied.
If the plaintiff files a case which is premature or fails to exhaust administrative remedies, then the
case can be dismissed for failure to state a cause of action. Since there is no cause of action, the case is
not yet ripe for adjudication.
When the plaintiff fails to resort to Katarungang Pambarangay according to Supreme Court
Administrative Circular 14-93, the case can be dismissed for failure to state a cause of action or failure to
comply with condition precedent. However, the Supreme Court also said that the proceedings in court
can also be suspended. Thus, according to Prof. Bautista, Bengzon v. Chan is probably still good law. If
there is no resort to arbitration before the case is brought to court, the court may suspend the case
applying Supreme Court Administrative Circular 14-93.
What does lack of capacity to sue contemplate?
The general rule is that the courts lack of jurisdiction over the subject matter can be questioned.
There is an exception estoppel by laches as held in the Tijam case. According to Prof. Bautista
however, the Tijam case has very peculiar facts. The effect was that the parties conferred jurisdiction by
themselves.
Under sec. 21 (1) of BP 129, RTCs can issue writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction. . Effectively, these RTCs cannot be enjoined if the
matter is outside their region. Now, how do we determine the region. Is the region the place
where the act takes place or where the person to be enjoined is located? See Dagupan Electric
v. Pano.

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Civil Procedure

Prof. Antonio R. Bautista

Problem: The complaint prays for damages worth P1,000,000. The complaint is lodged with
the RTC. But in truth and in fact, the plaintiff is only entitled to P100,000. Defendant files a
Motion to Dismiss for lack of jurisdiction over the subject matter. Rule.
Answer: Denied. Jurisdiction is determined by the allegations in the complaint and not the
evidence presented.
Jurisdiction of the courts is based on amounts.
Problem: Complaint prays for sum of money. Actual damages are worth P300,000.
Attorneys fees are worth P 50,000. Interest is worth P60,000. The total amount prayed for is P
410,000. Where do you file the case?
Answer: File with the RTC. R.A. 7961 which took effect on April 15, 1994 expanded the
jurisdiction of MTCs. In Administrative Circular 9-94, the Supreme Court in the implementation of
RA 7961 clarified that: The exclusion of the term damages of whatever kind in determining the
jurisdictional amount under sec. 19 (8) and sec. 33 (1) of BP 129 as amended by RA 7691,
applies to cases where the damages are merely incidental to or a consequence of the main
cause of action. However, in cases where the claim for damages is the main case of action, or
one of the causes of action, the amount of such claim shall be considered in determining the
jurisdiction of the court.
For an outline of the Jurisdiction (Original and Exclusive, Original and Concurrent, and
Appellate), of the Supreme Court, Court of Appeals, RTCs and MTCs please see pages 48-53 of
Regalado.
If one wants to challenge the constitutionality of a statute, can the plaintiff go directly to the Supreme
Court? No. Lower courts have the jurisdiction to rule on the constitutionality of statutes.
The Court of Appeals has exclusive and original jurisdiction over actions for annulment of
judgments of the RTCs
The Court of Appeals has the power to try and receive evidence in cases where a new trial is
sought on the ground that there is newly discovered evidence and in cases where the judgment
of the RTC is being annulled.
Adoption and matrimonial cases are to be filed with the RTCs.
Problem: Plaintiff files an action for ejectment and recovery of P1,000,000. Where do you
file?
Answer: No answer given.
Problem: Plaintiff files an action to collect P10,000,000. The defendants reside in Q.C. Do
you have to go through Katarungang Pambarangay?
Answer: Yes. Plaintiff must go through the process in the barangay of the defendant.
However there are exceptions to Katarungang Pambarangay:
1. where 1 of the parties is the government, its subdivision or instrumentality
thereto
2. where 1 party is a public officer or employee and the dispute relates to the
performance of his official functions
3. offenses punishable by imprisonment exceeding 1 year or a fine exceeding
P5T
4. offenses where there is no private offended party

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Civil Procedure

Prof. Antonio R. Bautista


5. such other cases or disputes which the President may in the interest of
justice determine upon the recommendation of the Sec of Justice
(Kindly check the law as this enumeration may be incomplete.)

Problem: Plaintiff files an action to foreclose a chattel mortgage which secured a loan of
P50,000. Which court do you file?
Answer: No answer given. (See the provisions of the Chattel Mortgage Law.)
Q : What cases, if any, fall within the exclusive, original jurisdiction of the SC?
A:
1. petition for certiorari, prohibition and mandamus against the CA
2. petition for certiorari, prohibition and mandamus against the ff:
a. Sandiganbayan
b. COMELEC
c. COA
d. DOLE and BLR
Q : What cases, if any, fall within the original jurisdiction of the SC concurrent with the RTC?
A:
1. petition for certiorari, prohibition, mandamus, quo warranto and habeas corpus against person
and entities other than courts and administrative agencies whose decisions are appealable to the SC or
the CA
2. action to prevent and restrain violation of laws concerning monopolies and combination in
restraint of trade (sec 17 Judiciary Act of 1948)
3. cases affecting ambassadors, other public ministers and consuls
Q : The legislature is prohibited by the constitution from diminishing the power of the SC as
defined in the constitution. Although BP 129 did not repeal directly any jurisdiction of the SC,
how did it affect the jurisdiction of the SC?
A : Now, the CA has jurisdiction to issue writs of prohibition and mandamus whether or not in aid of its
appellate jurisdiction whereas before BP 129, it could issue writs only in aid of its appellate jurisdiction. So
under BP 129, the power of the SC to issue those writs especially against lower courts in cases not in aid
of its appellate jurisdiction is diminished since this power is now shared by the SC with the CA.
COMMENT: This is not constitutional because the only prohibition in the constitution is that
legislature cannot diminish the jurisdiction of the SC as defined in the constitution. The jurisdiction of the
SC by other mode may be removed by law. But if the jurisdiction is granted by the constitution, it cannot
be removed. Thats why in 1 case, the San Miguel Corp vs Sec of Labor, at that time the Labor Code
provided that a decision of the NLRC is final and executory. It did not say that the SC cannot review them
but a contention was made that since it is final, the SC cannot review them. The SC said that it cannot be.
Jurisdiction is granted by the constitution. You cannot remove that from us. Jurisdiction of the SC as
defined in the constitution cannot be removed nor diminished but that is not so with jurisdiction of any
other court.
Q : What cases, if any, fall within the appellate jurisdiction of the SC?
A:
1. cases decided by the ff courts and administrative agencies:
b. CA
c. Sandiganbayan
d. COMELEC (Art. IX. A., Sec. 7)
e. COA (Art. IX. A, Sec. 7)
2. subject matter (fr RTC)

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Civil Procedure

Prof. Antonio R. Bautista

a. all criminal cases involving offenses punishable with death or life imprisonment or
reclusion perpetua
b. all cases in which the constitutionality or validity of any treaty, law, ordinance or
executive order or regulation is in question
c. all cases involving the legality of any tax, impost, assessment or toll, or any penalty
imposed in relation thereto
d. all cases in which the jurisdiction over the subject matter of lower courts is in issue
e. all other cases in which only errors or questions of law are involved
Q : Complaint filed in the RTC to recover on PN for P15T, attys fees of P5T, and interest accrued
as of the time of filing P1.5T . defendant moves to dismiss on the ground of RTCs lack of
jurisdiction. Motion granted. Plaintiff appeals to CA. Resolve the appeal.
A : The CA should dismiss the case outright. (Rule 50, Sec. 2) This is a significant change from the old
rules where the CA could certify a wrongly-filed case to the SC. Now, this no longer holds.
Q : There was a short shipment in a K for the shipment of goods from HK to Mla. The consignee
sued the carrier in Mla RTC. The carrier moved to dismiss on the ground of lack of jurisdiction of
the C since it is provided in the Bill of Lading that in case of dispute, it must be brought in the HK
RTC. Decide.
A : Motion will not prosper. The clause in the Bill of Lading requiring that the case be brought before the
HK courts deprives Philippine courts of jurisdiction over the dispute. The parties can stipulate as to the
venue but not with jurisdiction. Jurisdiction is conferred by law and cannot be stipulated by the parties.
Therefore, it cannot be removed by the parties. (But take note of the Zapata ruling in Intl Law which
contradicts this rule. That we accept the general principles of international law.)
Q : K of affreightment containing shipment from HK to Mla provides for an arbitration clause
where any claim arising out of the BOL shall be filed only in HK courts. Shipment shortlanded in
Mla. Consignee brings action claiming P25T in RTC Mla against vessel owner. Latter moves to
dismiss on the ground of lack of jurisdiction on the subject matter involving the stipulation in the
BOL. Resolve.
A : Motion denied for lack of merit. Sec 19 (3) of BP 129 as amended by sec 8 RA 7154 vests in the RTC
exclusive original jurisdiction where the demand or claim exceed P200T (MM). Admiralty cases which are
within the exclusive original jurisdiction of the RTC regardless of the amount involved refer to all maritime
K or controversies such as K of affreightment and charter parties. (Firemans Fund Ins Co vs Cia General
de Tabacos de Filipinas)
The stipulation in the BOL is void. (Zapata vs M/S Brenem) Where there is no error or
overreaching and there is no showing that the enforcement of the choice-of-law clause would be
unreasonable or unjust, the clause must be given effect.
Basic in the law on procedure is the doctrine that the jurisdiction of a court over the subject matter
of an action is conferred only by the constitution or the law and that the Rules of Court yield to substantive
law, xxx, jurisdiction cannot be fixed by the agreement of the parties; it cannot be acquired through, or
waived, enlarged or diminished by any act or omission of the parties; neither can it be conferred by
acquiescence of the court. (De Jesus vs Garcia, Calimlim vs Ramirez)
(Please check the answer to this one. There is jurisprudence conflicting though to the effect
that arbitration clauses, absent any fraud or unjustness must be given effect.)
NOTE : an action against a defendant involving admiralty and lease falling within the jurisdiction of the
RTC and an action for a sum of money against an alternative defendant falling within the jurisdiction of a
municipal court, if arising from the same transaction, can be joined in a complaint and filed with RTC
(Rizal Surety vs Mla Railroad)

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Prof. Antonio R. Bautista

Q : Suppose a K between 2 parties states that no action arising from the K may be filed in court
without first being submitted for arbitration. One party moves to dismiss the case filed by the
other on the ground that that case was not yet submitted for arbitration. Decide.
A : Motion denied. Arbitration clause is proper. This is not an instance of contracting away the courts
jurisdiction. Action is merely suspended.
COMMENT : If the Ks wording is such that there can be no action brought to court at all without
the case first being brought to arbitration, then that would be putting a restriction to file a case in court and
is improper.
The clause in the K provides that no suit can be brought to court without first resorting to
arbitration. In other words, making use of arbitration as a condition precedent to court action. Thereby a
motion to dismiss for failure to comply with condition precedent was argued on that ground. However, the
ruling of the SC here is that the action will not be dismissed, it will only be suspended. The parties
directed to resort to arbitration.
Q : Can a vessel be sued in our courts?
A : Yes, if with admiralty jurisdiction. See the Ship Mortgage Decree.
Q :What are libel suits in the context of civil procedure?
A : Formerly the initiatory pleadings in actions in admiralty which correspond to the complaint now.
Q : Action for unlawful detainer filed in the MTC adding also for the payment of arrears and
damages of more than P50T. The defendant moved to dismiss on the ground of lack of
jurisdiction. Resolve.
A: MTC has exclusive original jurisdiction over cases of forcible entry and unlawful detainer. Moreover,
damages in this case are merely incidental to the main case of unlawful detainer. (Also note that
separate causes of action of unlawful detainer and damages cannot be joined in the RTC because FEUD
is a special civil action.)
Q : Can you amend a complaint, a pleading to confer jurisdiction on the court when under the
original pleading there was none?
A:
No answer.
Q : Action to foreclose a chattel mortgage of betamax worth P8T. Which has jurisdiction?
A: Check the chattel mortgage law.
Q : If the action is to recover P15T balance from K to buy a car worth P500T, which amount is
determinative of the jurisdiction of the court?
A : Amount in the claim. The settled rule is that the jurisdiction of the court over the subject matter is
determined by the allegations of the complaint.
When is the subject matter incapable of pecuniary estimation?
Problem: Plaintiff files an action to rescind the contract, where do you file?
Answer: RTC since it is not capable of pecuniary estimation.
According to Prof. Bautista, unlawful detainer is effectively a rescission of a
contract. However, it must still be brought in the MTC.
Problem: Plaintiff files a case for specific performance of a contract to sell
involving P50,000. Where do you file?
Answer: RTC.

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Prof. Antonio R. Bautista

Problem: Plaintiff files a case for specific performance of a contract to sell


involving P50,000 with alternative prayer of P50,000 worth of damages. Where do you file?
Answer: Check jurisprudence. There are 2 scenarios:
(1) If the alternative prayer can be granted without granting the main prayer, the case is
capable of pecuniary estimation and should therefore be filed in the MTC (since the
amount of P 50,000.00 is within the jurisdictional limits of the MTC).
(2) However, if the alternative prayer cannot be granted without first determining the
main prayer, the case remains incapable of pecuniary estimation, and therefore the
case must be filed in the RTC.
A contract is renewable for 5 years. Plaintiff files an ejectment suit, alleging that the lease
has expired with the MTC. The defendant alleges as an affirmative defense that he is entitled to
renewal. The defendant files a Motion to Dismiss on the ground of lack of jurisdiction of the MTC
alleging that the RTC has jurisdiction since the subject matter is incapable of pecuniary
estimation. According to Prof. Bautista, the Supreme Court said that if it is an interpretation of
court, then the subject matter is not subject to pecuniary estimation.
Q : Action for rescission of K with prayer for damages amounting to P100T. What court has
jurisdiction?
A : RTC
Q : What if damages sought is only P10T?
A : RTC. Prayer for damages is incidental to action.
Q : What if action for rescission or P10T damages?
A : MTC. The alternative prayer moots lack of pecuniary estimation.
Q : What if action is for specific performance?
A : RTC because incapable of pecuniary estimation.
Q : What is meant by sec 19 (1) of BP 129 in which the subject of litigation is incapable of pecuniary
estimation? Should not the jurisdiction be determined by the allegations in the complaint and answer?
Can you determine the subject matter of the litigation from the complaint alone or also by consideration of
all pleadings?
A : Jurisdiction over the subject matter is conferred by law. It is determined by the amount pleaded in the
complaint under the totality ruling. Attys fees are included in the determination of the jurisdictional
amount. However, interest and cost of suit are excluded.
Q : An action for unlawful detainer on the ground of expiration of lease. The K of lease contained a
renewal clause which said that this lease is renewable for a fixed term or for another year upon
mutual agreement of the parties. There is a principle in law that provisions such as this mean
that it is renewable upon the option of the lessee. The defendant moved to dismiss on the ground
that the transaction is not capable of pecuniary estimation. How should the court rule?
A : When the subject matter of compromise is the expiration of the K, it is not capable of pecuniary action.
If you read BP 129, the jurisdiction of the RTC it is said that the subject matter of litigation cannot be
determined by complaint. Now where the subject matter is the rescission of mortgage, it is not capable of
pecuniary estimation. If your cause of action is specific performance or rescission together with damages,
there are 2 bases for determining jurisdiction.

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Q : Action filed with the RTC to fix a period for K of lease filed by the lessee against his lessor.
Defendant-lessor counterclaims for unlawful detainer on the ground that the term of the lease had
expired for which prior demand is not necessary when the ground for ejectment is expiration of a
lease term. Can the RTC entertain the counterclaim?
A : No. Rule 6, Sec. 7 provides that a compulsory counterclaim, to be cognizable, must be within the
jurisdiction of the court both as to the amount and the nature thereof. An unlawful detainer action is within
the exclusive original jurisdiction of the MTC. Therefore, the RTC must dismiss the counterclaim.
(Double-check this, however.)
Q : The political counselor of the Cuban Embassy is renting a house for his personal use and that
of his family. Monthly rent of P40T. in arrears for 3 months. Action for unlawful detainer to eject
them. In what court should the action be brought?
A : In MTC. BP 129 sec 33 (2) . The political counselor is not a public minister or consul hence Art 8 of
constitution is not applicable.
Q : Is there any decision of the MTC which can be appealed directly to the CA?
A : No. Rule 40, Sec. 1 provides that appeals from judgments and final orders of the MTC are taken to
the RTC exercising jurisdiction over the area to which said MTC pertains.
Q : What court has jurisdiction over guardianship cases?
A : RTC
Q : Action for unlawful detainer to eject tenant and recover rentals due of more than P120T. Even
before the tenant could be served summons, he voluntarily left the place. When he received the
summons he filed a motion to dismiss. Case was filed in the MTC. Decide.
A : Motion is denied. The jurisdiction of a court whether in criminal or civil cases, once attached cannot be
ousted by subsequent happenings or events, although of a character which would have prevented
jurisdiction from attaching in the first instance.
Is it really true that the parties cannot confer jurisdiction on a court?
- look at Tijam vs Sibonghanoy; after trial before the RTC then appeal to CA, at the CA level,
defendant questioned jurisdiction of RTC; CA used principle of latches applied to estop the
defendant from raising the issue of lack of jurisdiction

III.

VENUE

If theres a stipulation as to venue, it must be to the effect that it is the ONLY venue. Meaning,
it must be exclusive. Otherwise, the plaintiff can file in other venues.
In Eastern Insurance v. Cui, the Supreme Court said that a 3 RD party plaintiff and 3rd party
defendant are subordinate to the principal action. The 3 rd party plaintiff and 3rd party
defendant cannot control the venue of the main action.
Questions on venue should be raised at the earliest time possible because you have to resolve it
at once. So that where objection to venue is denied, elevate it to higher court at once on certiorari.

IV. PARTIES
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Q: What are the different modes by which a person becomes a party in a civil suit?
A:
1. When you sue
2. When you are sued
3. Impleaded later thru thirdparty (etc) complaint
1. Intervention
2. Defendant on a counterclaim (Rule 6 Section 14) - brought as new party
The following are parties:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
answers for

plaintiff
defendant
3rd party plaintiff
3rd party defendant
cross plaintiff
cross defendant
intervenor
plaintiff in counterclaim
defendant in counterclaim
sureties (Surety becomes a party when the bond is filed i.e. attachment bond
damages in case attachment is improper; supersedeas bond bond to stay execution
[ sec. 19, Rule 70]. If there is no judgment surety is discharged. One cannot file a
separate action to recover against the surety since that would be multiplicity of suits. See
also sec. 47 (b), Rule 39)

Due process demands that no judgment can bind one who is not a party. This is one legal
significance of being a party.
Another implication of parties is that parties are entitled to notice as to
orders, pleadings, etc. They can also take part in the proceedings.
In the Rules of Court, parties are limited to the following (sec 1, Rule 3):
a. natural persons
b. juridical persons
c. entities authorized by law
Note however that a vessel may be a party to a civil litigation under the Ship Mortgage Decree.
Q: Can Winlaw sue, assuming it is not incorporated?
A: NO, Winlaw cannot sue in Philippine courts since it does not have capacity to sue. It is not a juridical
person.
Q: Can it be sued?
A: Yes, under Rule 3, section 15. It comes under the term business association. The section is not
limited to business association and is extended to non-profit or charitable associations. Rule 3, sec. 15
Entity without juridical personality as defendant when 2 or more persons not organized as an entity with
juridical personality enter into a transaction, they may be sued under the name by which they are
generally or commonly known.
Q: May a foreign corporation doing business in the Philippines be sued? How about if it wants to sue?
How about counterclaim if it is sued; permissive or compulsory?
A: These are the rules for foreign corporation doing business in the Philippines:
1. With license can sue and be sued.

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2. Without license cannot sue but can be sued.


3. Isolated transaction Foreign corporation can sue, e.g. well-known mark.
Note that the phrase doing business in the Philippines is defined in RA 5455.
PROBLEM:
Mrs. Eva Fonda, 16, is a movie actress. She went shooting in the jungles of Mindoro.
She was accidentally shot by a hunter so she was hospitalized, thus taken out of the picture. She
brought an action against LVN and against the hunter. What is her capacity to sue? Can she sue
alone?
A: No. She has to be joined and assisted by her father, since she is a minor. A minor is no longer
emancipated by marriage. In the alternative, she must be joined by her mother, guardian, or guardian ad
litem.
Problem: Eva Fonda, married, 19, is a movie actress. While shooting on location in Mindoro,
she was shot in the leg by D, a hunter. She is unable to complete the movie. She is replaced by
Ara Mina. Eva sues for tort. Is there a problem with capacity to sue? Can she sue alone, without
her husband?
Answer: Yes, the suit involves her exercise of profession. It does not involve conjugal property of the
spouses.
If Eva Fonda sues both D, the hunter, and the movie company, there would be 1 plaintiff with 2
defendants and 2 causes of action (tort and breach of contract). It is necessary to inquire if there
is a proper joinder of parties under sec. 5 (a), Rule 2. One cannot have a joinder of causes of
action if the parties are misjoined. The parties are properly joined because there is the same
transaction AND involves common questions of law and fact. In this case, there is a common
question of fact. The fact that Eva Fonda was shot led to her being unable to finish the film.
Plus, the movie company may be guilty of contributory negligence since it should have made sure
that no harm would come to Eva.

Where a corporation can sue, a compulsory counterclaim not set up in the same proceeding will be
barred and that permissive counterclaim not set up is not barred.
REAL PARTY IN INTEREST
The rationale for requiring that there be real parties in interest is that if the courts are allowed to
adjudicate moot and hypothetical cases, then there may be an overlap of legislation. Sec. 1, Art. VIII of
the Constitution provides that the courts can only adjudicate actual controversies. If a party is not the real
party in interest, he is not entitled to initiate the judicial machinery. Otherwise, that would be a waste of
judicial resources.
If one is not a real party in interest, then the case can be dismissed on the ground that there is a
failure to state a cause of action. Standing is a part of the cause of action.
Q: What is the procedural remedy if defendant or plaintiff is not a real party in interest?
A: Rule 3, section 11. The parties may be dropped or added by order of the court in 2 ways:
a) by the courts own initiative
b) by motion of any party
This may be done at any stage of the action and on such terms as are just. Also any claim against a
misjoined party may be severed and proceeded with separately.

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Q: A building was burned. It was insured. The insurance company paid to the owner the amount of the
insurance under the following documentation: A loan agreement was executed by the owner to the
insurance company whereby it was received that the amount paid to the owner may have from the one
who caused the fire and obligating the owner to institute the action for such recovery. The owner brings
an action for such recovery against defendant alleging that defendant caused the fire. Defendant moved
to dismiss on the ground that the owner is not the real party in interest and that it was really the insurer.
Resolve the motion to dismiss.
A: Motion to dismiss denied.
Yes, the owner is the real party in interest. The test to determine whether a party is a real party in
interest is whether he stands to be benefited or injured by the judgment in the suit, or the party entitled to
the avails of the suit. More concretely here, suppose the defendant pays the plaintiff or suppose the
judgment is rendered against the defendant ordering the defendant to pay the plaintiff, is the defendant,
thereby insulated from having to make payment to anybody else? If so, that is on the same account, then
the plaintiff is the real party in interest. Conversely, is the defendant the real party in interest? Yes, if from
what he pays it wipes out the obligation then he is the real party in interest. As simple as that.
Q: X Co. has fire insurance on its building. It burned and after proper claim, X Co. is paid the insurance.
Under the documentation, Loan receipt for P 1 Million, i. e., received on loan to be repaid only in case
company is able to recover from the party responsible for the fire. D is responsible for the fire. X Co.
sues D, the alleged arsonist. D moves to dismiss on the ground of failure to state a cause of action as X
Co. is not the real party in interest and the real party in interest subrogated is the insurance company. X
Co. says it was not paid, only loaned the amount by the insurance co. D says in answer that the
documentation is a sham. Rule on the motion.
A: Ds motion to dismiss sustained. A party, to be qualified to bring an action, must be a real party in
interest and the action must be in the name of the real party in interes. The real party in interest ,must
have a present substantial interest or such interest of a party in the subject matter of the action as will
entitle him, under the substantive law, to recover if evidence is sufficient. Insurance company is the real
party in interest in relation to D.
REPRESENTATIVE PARTIES (Rule 3, section 3)
GENERAL RULE: Unless the action is authorized to be brought in the name of the representative, the
action must be brought in the name of the real party in interest, otherwise, it may be dismissed for failure
to state a cause of action.
Q: Action by one subdivision owner in a subdivision against the subdivision developer to recover
damages for non-compliance with some of the commitments in the contract to sell. The plaintiff instituted
the action in his behalf and on behalf of the other subdivision owners as a class suit. Is that a class suit?
A: No, see Rule 3 section 12. For there to be a class suit, the parties must have a common or general
interest in the subject matter of the litigation, not merely on the question involved. There must be many
persons so numerous that it is impracticable to join all as parties.
Rule 3, section 3: If allowed to be brought by the representative:
1. Beneficiary included in the title of the case
2. Beneficiary is the real party in interest.
Who is a representative? There must be true representation.
1. Trustee of an express trust
2. Guardian
3. Executor/administrator
4. Party authorized by law or by the Rules

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Agent of undisclosed principal acting in his own name:


1. may sue or be sued without joining the principal
2. EXC: when suit is about things belonging to the principal
Q: In a subdivision, the developer puts up a common TV antenna for all residents and assesses them a
sum monthly whether or not the residents use the antenna. P, for and in behalf of all residents, sue the
developer re the assessment. Can P properly represent in a class suit?
A: Distinguish between common interest in the subject matter and common interest in the legal issue.
Rule 3, section 12.
BAUTISTA: Re realty- interest of one is only as to his own house and lot. It is more appropriate to cite
Rule 3, section 6 which authorizes joinder of parties who have a common interest in the same question of
fact and law where the relief sought arises, out of the same transaction or series of transactions. Class
suit may prosper. (1 Moran 208)
Legal implication of a class suit Everyone will be bound by a judgment even if they disagree. You are
being presumptuous in assuming that all residents share that common interest with you. There should be
unanimity.
Q: City passes ordinance imposing additional tax for park beautification of 10 centavos per movie ticket.
Can X sue to annul the ordinance and recover all he has paid. Can he sue for and in behalf of all other
residents in a class suit? How about those who agree to the tax?
A: It seems like the class suit cannot be brought by X for he does not satisfy the requisite that the parties
bringing the representative suit be sufficiently numerous or representative of the class and also, Professor
Bautista is of the opinion that all residents to be affected should be unanimous in sharing that interest of
the plaintiff.
INDISPENSABLE PARTIES
Q: What should the defendant do if an indispensable party is not impleaded?
A: Rule 3, section 11. Note that the body of the provision says that neither misjoinder nor nonjoinder is a
ground for dismissal of action. So move for addition of the new party and if the plaintiff does not comply,
you move to dismiss complaint on the ground of Rule 17, section 3. Dismissal of Actions, failure to
prosecute. Failure to comply with the Rule for no justifiable cause requiring the impleading of
indispensable parties for an unreasonable length of time.
Q: How do we know if a party is indispensable or not?
A: Indispensable parties are those without whom no final determination can be had of an action.
Q: Is a junior mortgagee an indispensable party for a foreclosure of mortgage?
A: No because final determination of the action can be had without him.
BAUTISTA: A party is indispensable if you cannot render a judgment in the case without affecting his
interest.
A word more on class suit. An indiscriminate application for the class suit principle may be held
bound although he was not really notified of the litigation on the theory that he belongs to a class and that
he was properly represented in that class. That is a very violent ruling which must be seemingly resorted
to because it is basic that a person should not be bound by a judgment in a case to which he was not a
party. And in a class unit, by application of the class-suit principle, a person is risky to apply the principle
but it is allowed under the strict requirements of the rules.

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JOINDER OF PARTIES
Q: Can a maker and a payee join together as plaintiffs to collect the amount of a check in a suit against
the certifying bank? Are the plaintiffs properly joined? What is the remedy case of a misjoinder? Can
you move to dismiss?
A: No, misjoinder of parties is not a ground to dismiss an action. They can ask the court to drop the
names of the parties misjoined. The court may grant the request on such terms as are just.
BAUTISTA: Here is an illustration which is important not so much on the application of that rule but as an
illustration of the way problems in procedure are solved and intersect, interweave and interrelate. That is
why one situation can call for the application of myriad procedural rules. This is what makes Remedial
Law a little difficult. Actually, it is an exaggeration, everything is easy. You can use the following symbols
in your exam.
- defendant
- plaintiff
K - contract
c/a cause of action
LIN TAN HO VS. REMOLETE
Plaintiff sued 5 defendants on a common cause of action alleging that they are all jointly and severally
liable. A and B defaulted. C, D and E answered. After the answer, the plaintiff moved to drop C, D, and
E invoking Rule 3, section 11. He Supreme Court said that this is not just. The trial court erred in
granting the motion to drop C, D, and E. You have to correlate with the rules on default. If you drop C, D
and E that will amount to a substantial amendment of your complaint of which A and B although in default
are entitled to notice (Rule 9, section 3a). Second, in Rule 9, section 3c, the evidence presented against
non-defaulting defendants is also presented against the defaulting defendants. Why? Because when a
person defaults by not answering, it is presumed that he does so knowingly, wittingly, intelligently na
sinadya nya. That is why one of the rules on default is that the plaintiff cannot recover more than the
amount prayed for. When a party received the complaint and the summons, he will say, Ah, P50,000
lang pala and hinihingi. Chicken. Anyway, talagang utang ko naman yon, pabayaan ko, kesa magabogado pa ako. Thats why he is presumed to have willingly consented to be in default.
But when a common cause of action is pleaded against the defendants. Each one has a right to
expect that the others will make a common cause with him.
Plaintiff, arising out of a series of transactions, has a cause of action to recover on the promissory
note from A, another promissory note from B, another from C, etc. The promissory notes arise from the
series of transactions.
For example: A, B, and C as co-owners bought a resort from the plaintiff (1/3 pro-indiviso). They gave a
promissory note in equal amounts. Hindi sya nagbayad. Dinismiss sila ng plaintiff.
Q: Can they be joined together in one action?
A: Yes.
Q: Can he also join another action against C (may utang pa si C na ibang jewelry?). Can the cause of
action be joined?
A: No.
BAUTISTA: Note that under Rule 2, sec. 5, among the requirements is that there is joinder of parties
which is in Rule 3, section 6. In order for these to be a proper joinder of causes of action where there are
multiple parties, there must first be a proper joinder of parties. If there is a misjoinder of parties, the

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causes of action also multiplied will be misjoined because one of the requirements for joinder of causes of
action is proper joinder of parties.
Q: The first cause of action is a promissory note. The second is quasi-delict, damages arising from
physical injuries of a vehicular accident, can they be joined?
A: No, because in order for causes of action to be joined together, it is required that they arise out of the
same transaction or series of transactions. An action for damages arising from quasi-delict is not
regarded as a money claim.
Q: Now about illustration
Defendant #1 action on promissory note
Defendant #2 action in promissory note
Can they be impleaded together in one complaint?
A: No, unless they arise out of the same transaction and also there is a common issue of fact and law
common to defendant 1 and 2, otherwise you will be unnecessarily delaying and dragging one of the
defendants into a litigation which he has no concern.
SUBSTITUTION OF PARTIES
BAUTISTA: We use the term actions which survive and those which do not survive in respect to claim
against the defendant whether you will dismiss them to be prosecuted in the probate court of if it survive,
whether to substitute the defendant with his legal representative. But in Civil Law, you also use those
terms in connection with whether actions can survive the death of the owner of the action. That is another
case. But it is applicable to that case when the plaintiff dies. If his cause of action is one of those which
descend or is not extinguished by his death (there are some which are not extinguished by his death, like
action for support, action for acknowledgement of a natural child), it survives.
Do you suppose there is a difference if the action on a money claim and the defendant dies
pending trial, whether the action is in the RTC or inferior court? The argument is very strong for the
proposition that there is no difference because BP 129 says the procedure is the same. The claims which
survive, meaning when the defendant dies before final judgment in the RTC. Please look at Rule 86
Section 5 (Claims Against the Estate). The claims which must be filed in the probate court within the time
for filing such claims, otherwise they will be barred are found in Rule 86 Section 5, called the statute of
non-claim. These are same claims which do not survive. The claims that survive are enumerated in Rule
87 Section 1. These actions can be brought against the executors or administrators and therefore they
survive. Those actions in Rule 87 Section 1 are highly litigious and cannot be resolved summarily by the
probate court and a probate proceeding is summary.
If the plaintiff is the one who dies, you just substitute him. If the defendant is the one who dies, it
depends on what stage he died. If the judgment had already been levied, you can proceed with the levy
and sale. If it has not yet been levied, you file the judgment as a money claim in the probate court. In the
probate court, you share with the other general unsecured creditors. You will be paid probate if the estate
is sufficient. See Rule 3 Section 20.
Q: Civil action of libel for damages in RTC. Pending trial, the defendant dies. What happens to the
action? What if it is the plaintiff who dies?
A: If defendant dies, there can be substitution of party as the claim is not extinguished. (Rule 3, sec. 16)
As to plaintiff dying, same. Action still continues. See also Rule 3, sec. 20. Claims not surviving after
death are those for recovery of money, debt, interest. In libel cases, recovery is for damages. Therefore,
suit can survive.

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BAUTISTA: Action not surviving only means that you have to prosecute in another court (probate) and
the case in the regular court will have to be dismissed. It is not proper to say that the action is
extinguished.
Q: Plaintiff dies during the pendency of the libel suit. Action survives and the court orders plaintiffs
counsel to submit within 30 days for substitution by legal heirs. Counsel does not follow and the court
dismisses the action. Is this correct?
A: No. See the last paragraph of Section 16, Rule 3. Court may order opposing party to procure
appointment of executor who shall immediately appear for deceased. The counsel may be disciplined.
Q: Action in the RTC to collect a sum of money based on a promissory note amounting to P401,000.00.
After issues were joined and during the trial, the defendant died. You are the lawyer for the plaintiff, what
would you do?
A: I will file the case in the probate court because the action here is a money claim which does not
survive. It dies with the death of the defendant. So the plaintiff has to file it in the settlement of the estate
of the defendant.
Rule 86 Section 5. Claims which do not survive:
1. all claims for money arising from contract, express or implied
2. funeral expenses
3. expenses for last sickness
4. money judgment against decedent
5. money debt or interest
Q: What are the actions which survive?
A: Real actions, those involving real properties and personal properties.
Q: Action to recover damages on personal property. If it survives, what will you do?
A: There would be substitution.
Q: What if defendant dies after judgment in the RTC and while it is pending appeal in the CA, a money
claim for P50,000 on the promissory note. What do you do, you are the lawyer for the plaintiff.
A: I will move for the substitution of the parties and continue with the appeal.
Q: Suppose the action is pending trial in the RTC, action to collect on a P50,000 promissory note. The
plaintiff died. You are now the lawyer for the defendant. What do you do?
A: Nothing.
Q: Can the deceased plaintiff be substituted in all cases?
A: No. If the action is personal to the plaintiff, he cannot be substituted.
Rule 87 Section 1:
1. recover real/personal property/interest therein
2. enforce a lien
3. recover damages for an injury to person or property, real or personal
Q: Are proper and necessary parties the same?
A: Yes. Rule 3 Section 8.
Q: Can a co-owner of a row of apartments alone file an ejectment suit against a tenant?
A: Yes.

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ALTERNATIVE AND UNKNOWN DEFENDANTS


According to Prof. Bautista, under sec. 6, Rule 3, alternative plaintiffs are allowed, or in the
alternative, may except as otherwise provided in these Rules, join as plaintiffs. Alternative causes of
action are allowed under sec. 2, Rule 8.
A plaintiff can sue in the alternative is the plaintiff does not know who among the defendants is
liable. For example, if paternity is a mystery.
According to Prof. Bautista, sec. 2, Rule 8 allows for alternative defenses. For example, the
defendant borrowed a pot in good condition. When the pot was returned, it was cracked. The defendant
files his answer. In it, the defendant states that he didnt borrow it or if he did borrow it, it was already
cracked, or if he did borrow it, it was returned intact, or the crack was caused by force majeure. However,
according to Prof. Bautista, this is not allowed under sec. 3, Rule 7 which provides that the counsel
believes that there is good ground to support the pleading. This is not the case. Counsel must be sure.
Otherwise, the counsel is subject to appropriate disciplinary action.
NEW / ADDITIONAL PARTY
IMPLEADER (3rd PARTY COMPLAINT)
Q: What is a third-party complaint?
A: A third-party complaint is a claim that a defending party designated as the third party plaintiff has
against a person not yet a party to the action, called the third-party defendant, for contribution, indemnity,
subrogation or any other relief in respect of his opponents claim.
Q: What is the rationale for allowing 3rd party complaints and actions for interpleader?
A: To prevent multiple suits.
Q: Does the third-party defendant have to file his answer to the original complaint?
A: Rule 11 Section 5, it is provided that the third-party defendant shall file his answer to the third-party
complaint and allege his defenses and counterclaims and cross-claims against the plaintiff, third-party
plaintiff and other parties.
Q: P sues D to recover purchase price for goods sold to D. D sues X with third-party complaint because
of a promissory note. Is the third-party complaint proper?
A: Yes. Rule 6 Section 11. Third-party complaint is proper because it passes the test for the third-party
defendant would be liable to the plaintiff or defendant for all or part of the plaintiffs claim against the
original defendant although the third-party defendants liability arises out of another transaction (1 Moran
282).
Q: What is the rule on fourth-party obligation?
A: A third-party defendant may proceed against any person not a party to any action who is or may be
liable to him or to the third-party plaintiff for all or part of the claim made in the action against the thirdparty defendant.
Illustrations:
a.

Contribution A sues X for collection of P40, 000 based on a promissory note signed
jointly and severally with B. X may file a third-party complaint against B for contribution.

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c.
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Indemnity S, surety, is sued for recovery of the obligation of M. S may file a third-party
complaint against M for indemnity of whatever amount he may be adjudged to pay.
Subrogation The lessor sues the lessee for his failure to make repairs which under the
contract of lease he agreed to do. The lessee may file a third-party complaint against sublessee who failed to comply with the obligation.
And Other Relief X bought a parcel of land from M. Later, B files an action against X to
recover the property. X may file a third-party complaint against M for his warranty against
eviction.

Problem: Laarni Enriquez sues Loi Estrada for alienation of affections. Can a 3 rd party complainant file a
claim for a vehicular accident?
Answer: No, the 3rd party complaint must be in respect of the plaintiffs claim contribution, indemnity,
subrogation or other relief.
Problem: Can a 3rd party defendant raise as defenses in his answer, defenses which are available to the
defendant against the plaintiff?
Answer: Yes, under sec. 13, Rule 6.
The 3rd party complaint must be answered in 15 days except if the court fixes a different period.
Even if the requisites of a 3 rd party complaint have been complied with, still it is up to the
discretion of the court whether or not to allow the 3 rd party complaint since it may delay the main action.
Besides, the 3rd party complainant can always file it in a different action. Thats why its always necessary
to ask for leave of court when filing a 3rd party complaint.
The plaintiff does not have to amend the complaint in order to hold the 3 rd party defendant liable
against him. In the prayer for the 3 rd party complaint, the 3 rd party plaintiff prays that if he is adjudged
liable to the plaintiff, then it is the 3 rd party defendant who should be liable. A 3rd party complaint basically
offers a new defendant.
INTERVENTION
Problem: Action for sum of money for P1,000,000 is filed by X. Can you as fiance intervene in the suit?
Answer: No, the intervenor must have legal interest.
What if in the same problem, the intervenor is the live-in partner? What if the intervenor is an unsecured
creditor of either the plaintiffs or defendants?
What kind of interest is required for intervention?
INTERPLEADER
Is there a deadline for filing a interpleader? Is it the prescriptive period under the Civil Code.

IV.

SUMMONS
CONCEPT
o A writ or process issued and served upon the defendant in a civil action for the purpose
of securing his appearance therein.

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The service of summons enables the court to acquire jurisdiction over the person of
the defendant.
In the absence of service of summons, and unless the defendant waives such defect by
his voluntary appearance in court, any judgment rendered in regard to such defendant is
null and void.

The general rule is that summons is served by the sheriff or the court officer. However, as an
exception, the court for justifiable reason allow any suitable person authorized by the court to serve
summons (Sec. 3, Rule 14). An example of an instance when a suitable person is authorized by the court
to serve summons is when the court is overworked and understaffed or it the court doesnt know the
location.
Residence as opposed to domicile is physical. It is possible to have more than one residence.
I.

Form/Directive (R 14, S. 2)
Directed to the defendant
Signed by the Clerk of Court under seal
A.
B.
C.
D.

File and serve


Attach copy of complaint and/or order for appointment of a guardian ad litem, if any
Specification of period within which to answer
Specification of consequence if D fails to answer, i.e., judgment by default and grant of relief
prayed for
CONTENTS (R14.2)
Name of the court
Name of the parties to the action
A direction that the defendant answer within the time fixed by Rules
Notice that unless defendant so answers, plaintiff will take judgment by default
and may be granted the relief applied for.
5. Copy of complaint attached
1.
2.
3.
4.

Form 2- Summons.

To ___________________________, defendant
You are hereby summoned and required to file and serve your
answer to the complaint, copy of which is hereby served upon you,
within fifteen (15) days after service hereof exclusive of the day of
service. If you fail to do so, judgment by default will be taken against
you for the relief demanded in the complaint.
___________________,Clerk,
RTC of ____________

When an additional defendant is included in the action, summons should be served upon him.

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When a defendant is merely substituted for the deceased defendant, such as the substitution of
the administrator or the heirs of the deceased, service upon him of the ORDER making him party
is sufficient without service of summons.

II. Issuance and Service


A. Who issues? Clerk of Court (R 14, S. 1) upon filing of complaint and payment of the requisite
legal fees
Who serves?
1. sheriff
2. sheriffs deputy
3. other proper court officer
4. any suitable person authorized by the court issuing the summons
1. Personal
a. handing
b. tendering occurs when the person refuses (But what do you exactly mean by
tendering; is putting it under the door tendering?)
2. Substituted This is allowed only when the defendant cannot be served summons by
personal service; In the sheriffs return, there must be a statement that says that personal
service is not possible. It must state the efforts exerted by the sheriff.
a. Residence with some person of suitable age and discretion residing therein
b. Office with some competent person in charge thereof

One cannot leave summons with a receptionist since the person is not in
charge of the office.

Read the Laus case (219 SCRA 688). This is the law now. The Supreme
Court set a very strict standard. The standard is such because substituted
service is an extreme case.

3. Publication
4. By other means
What do you mean by other means? Under the Electronic Commerce Act, summons
may be served by fax or even e-mail. However, one cannot serve summons by a
pigeon or through smoke signals. According to Prof. Bautista, registered mail is also
one of the other means by which summons may be served if the court deems it
sufficient.
Extraterritorial service is proper only in 4 instances:
1. when the action affects the personal status of the plaintiff;
2. when the action relates to, or the subject of which is property within the Philippines, in
which the defendant has or claims a lien or interest, actual or contingent;
3. when the relief demanded in such action consists, wholly or in part, in excluding the
defendant from any interest in property located in the Philippines; and
4. when the defendant non-residents property has been attached in the Philippines
For a newspaper to be a newspaper of general circulation, the following elements must concur:

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1. it must be a newspaper, i.e. it published local news and general information, not
merely feature articles;
2. published at regular intervals (not just occasionally);
3. published for the general public and not just a specific group of persons
Thus, the Pinoy Times is probably not a newspaper since it does not contain any news articles. It
only has featured articles. (Although as of 1 February 2001, it appears that the Pinoy Times has
evolved into a newspaper by now publishing predominantly news and matters of general interest.) The
Supreme Court in one case said that the Daily Record was a newspaper of general circulation.
In some contracts, like international contracts, the parties may agree as to whom summons
should be served.
The return and the proof of service is not conclusive.
III. Where summons effective:
Rule 135 (1997)

Sec. 3 - Process of superior courts enforced throughout RP


Sec. 4 - Process of inferior courts enforceable within the province where the municipality or
city lies. May be served outside province with the approval of the RTC Judge of said
province & only in the ff cases:

i) when order for DELIVERY OF PERSONAL PROPERTY lying outside the


province is to be complied with;

ii) when an ATTACHMENT of REAL property lying outside the province is to be


made;

iii) when the action is against 2 or more defendants residing in different provinces;
and

iv) when the place where the case has been brought is that specified in a contract
in writing between the parties, or is the place of the execution of such contract
as appears therefrom.
BP 129, as amended (1980)

Sec. 38 (2) - Judgments and processes issued by the METC, MTC and MCTC , in cases
falling under their jurisdictions, may be served ANYWHERE in the Philippines without the
necessity of certification by the Judge of the RTC.
IV. Modes of Service of Summons
Note: Important if service is jurisdictional.
Handing it to defendant
Personal
Tendering it if D refuses to receive it

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Handing v. Tender note that in both of these modes of personal


service , location is not important, so service could be done
anywhere, no need for it to be made at the residence of the D
WHERE
residence
Substituted
**when D cant be
served within
reasonable time

office or place
of business

WITH WHOM
suitable age & discretion &
residing therein
competent person in
charge thereof

Justifiable reasons for substituted service:


(a) staff not available (understaffed)
(b) distance
(c) identification of person to be sued
e..g. Tatalon estate; squatters area/houses with no numbers
Publication

2.3.1. D whose identity or whereabouts unknown {R 14 (14)}


2.3.2. Extraterritorial

HOW DONE?
By leave of court
Either by:
a) personal service OR
b) publication in a newspaper of general circulation in such places and for
such time as the court may order, copy of summons and order of court
sent by registered mail to last known address.
Order granting such leave shall specify reasonable time within w/c def
must answer must not be less than 60 days
D does not resident and is not found in RP AND
action :
affects the PERSONAL STATUS of the plaintiff OR
relates to or the subject matter of which is PROPERTY W/IN RP in
which the D has or claims a lien or interest, actual or contingent, OR
in which the RELIEF demand consists, wholly or in part, in
EXCLUDING D from any interest therein OR
property of D has already been attached w/in RP
** in cases falling under extraterritorial service [R 14(15)],
service by publication must be COUPLED with sending of summons and order of
the court by REGISTERED MAIL to the last known address of the D
*Registered mail note the numbering
machine has a lock to prevent tampering

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2.3.1. Resident temporarily outside of RP (but resort to substituted service
first**)

Any other manner the court may deem sufficient


Q: Can summons be served by fax/e-mail?
A: SC has allowed it. R 14, S. 15: summons may be sent in any other manner
the court may deem sufficient.
Laus v. CA 219 SCRA 688
substituted service allowed only if there is JUSTIFIABLE CAUSE
Sheriff must exercise REASONABLE EFFORT to give the summons personally
Sheriff must substantiate his reasonable efforts (must be thorough)
Summons
Pleadings & Other Final
Orders
papers
Judgments
Mode of Service

1. Personal
* Handing
* tendering

1. substituted
* residence: with
resident
of
sufficient age
& discretion
* office/regular
place
of
business:
some
competent
person
in
charge
thereof

1. publication
2. any other means

Mode of Filing

n/a

1. personal
delivery
to
party/counsel
*
leaving
it
in
office with clerk
or person in
charge
*
leaving
it
in
residence
of
party or counsel
from 8 am to 6
pm
2. substituted
*
with clerk of
court
after
personal service
fails
3. mail
registered
(date
of
mailing is date
of filing)
ordinary
*

1. personal
2. registered mail

&

1. personal
2. mail
* registered
3. publication if D
summoned
by
publication fails to
appear in action

1. Personal
2. Mail

registered
ordinary

Specific Rules:

1. ENTITY WITHOUT JURIDICAL PERSONALITY - service effected upon all the defs by serving
upon:
any one of them; or
person in charge of the office or place of business maintained in such name. (R14.8)

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Prof. Antonio R. Bautista

NOTE: Service shall not bind any person whose connection with the entity has, upon due notice,
been severed before the action was brought.
1.

ASSOCIATIONS
a. DOMESTIC PRIVATE JURIDICAL PERSONS (R14.11)
*
President;
* Managing partner;
* General Manager;
* Corporate Secretary;
* Treasurer; or
* In-house counsel

Note: This list is EXCLUSIVE! Thus, one cannot leave summons with the Vice President or
Personnel Manager.
The case of Summit Trading answered whether or not summons may be left with the
secretary of the President.
b.

FOREIGN PRIVATE JURIDICAL ENTITY (R14.12)


(1) Resident Agent designated in accordance with law; or
(2) If no resident agent:
Govt official designated by law; or
Any of its officers or agents within the Phil.

3. PUBLIC CORPORATIONS (R14.13)


a. If defendant is the Republic
On Solicitor General
b. If defendant is a province, city, municipality or like public corps
On Executive Head ;or
Other officer/s as the law or the court may direct
3. MINORS (R14.10)
Upon minor personally; AND
Legal guardian, if he has one, or if none, upon guardian ad litem (appointment to be applied
for by plaintiff);
Mother or father optional
3. INSANE, INCOMPETENTS (R14.10)
Upon insane or incompetent personally; AND
Legal guardian, if he has one, or if none, upon guardian ad litem (appointment to be applied for
by plaintiff);

3. PRISONERS (R14.9)
Served upon prisoner by the officer having the management of such jail or institution; Said officer
deemed deputized as a special sheriff for said purpose
Officer = Jail warden
3. UNKNOWN DEFENDANT (R14.14) by publication

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Prof. Antonio R. Bautista

With leave of court, by publication in a newspaper of general circulation in such places


and for such time as the court may order

3. RESIDENTS TEMPORARILY OUT OF THE PHIL. (R14.16)


By leave of court, service may be effected out of the Phil:
a) by personal service; or
b) by publication in a newspaper of general circulation in such places and for such time as the court
may order,
Copy of summons and order of court sent by registered mail to last known address.
BUT REGALADO SAYS: USE SUBSTITUTED SERVICE MUNA before service by publication

3. NON-RESIDENT - Extra-territorial service (See Above R14.15))

WAIVER OF SERVICE (R14.20)


Defendants voluntary appearance equivalent to service of summons.
Inclusion in a motion to dismiss (R16) of other grounds aside from lack of jurisdiction over the
person of the defendant shall NOT be deemed a voluntary appearance. (R14.20)

PROOF OF SERVICE; ALIAS SUMMONS


R14, S4-5

FORM/CONTENT
In writing
Set forth the MANNER, PLACE AND DATE OF SERVICE
Specify any paper which have been served with the process
Name of the person who received it
Sworn to when made by a person other than a sheriff or his deputy

PROOF OF SERVICE BY PUBLICATION (R14.19)


1) Affidavit of:
o the printer, his foreman or principal clerk, or
o the editor, business or advertising manager
2) Attach copy of the publication; AND
3) Affidavit showing the deposit of a copy of the summons and order of publication in the post office,
postage pre-paid, directed to the defendant by registered mail to his last known address.
RETURN OF SERVICE (R14.4)
WHO MAKES THE RETURN: Server (Sheriff, deputy sheriff, or person deputized)
WHEN: Within 5 DAYS from completion of service
HOW:

Serve copy of return, personally or by registered mail, to the plaintiffs counsel,

Return summons to the Clerk who issued it, accompanied by proof of service.
GEN RULE: Return of service of summons immediately shifts burden of evidence (that summons was
served) from plaintiff to defendant since theres a presumption of regularity.
Without return of service - burden is on plaintiff
XCP: Return was patently irregular

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Prof. Antonio R. Bautista

XCP to XCP: DOCTRINE OF SUBSTANTIAL COMPLIANCE (i.e., if defendant actually received


summons and complaint)
ALIAS SUMMONS (R14.5)
Issued by Clerk of Court, upon demand of plaintiff, when:
a) summons returned without being served:
Server to make a return within 5 days stating reason for failure of service
Copy of return served also on plaintiffs counsel; OR
B) summons lost.
PROBLEMS ON SERVICE OF SUMMONS:
Q: A lawyer was a D in an action for collection. When sheriff went to his house to serve
summons, the only person he found was Ds daughter who was VISITING the latter. Can
summons be served on the daughter?
A: NO! Rule requires that the person to whom summons may be served must be RESIDING in the Ds
dwelling house/residence, not merely a visitor.
Q: Defendant is a RP resident. He lives in Forbes park and has an office in Salcedo Village. He
left for a five-month vacation in Europe. An action for collection was filed against him. How can
he be served with summons.
A: By extraterritorial service, Rule 14, S. 16..Residents temporarily out of the Phil.
Q: What to do if service of summons not valid?
A: Make a SPECIAL APPEARANCE for the LIMITED and EXCLUSIVE PURPOSE of questioning the
validity of service of summons, to quash it and move to dismiss on the ground of lack of jurisdiction over
the person of D. If you add other grounds (e.g. prescription /failure to state a c/a, etc.), you are deemed
to have waived the ground because that would be tantamount to an ADMISSION of the jurisdiction of the
court . This is because of the OMNIBUS MOTION RULE (R 9, S. 1. Defenses and objections not -pleaded
in a MTRD or in the answer are deemed waived.)
Q: Is return of the sheriff of the service of summons conclusive on the court?
A: NO! it is not conclusive because the recital of the sheriff in the return are FINDINGS OF FACT (e.g. in
the service to the private domestic corporation, the sheriff served it on one of the persons mentioned in
Rule). These are very serious factual issues which even have a heavy legal element. These are
reviewable by the court. They cannot take these out of judicial review. But there is a presumption of
regularity.
Q: Can summons be served by registered mail alone?
A: NO. Generally, in extra-territorial service, service may, by leave of court be effected out of RP by
personal service as under Sec. 6 OR by publication in a newspaper of general circulation in such places
and for such time as the court may order, in which case, a copy of the summons and order of the court
shall be sent by REGISTERED MAIL (so in addition to publication) to the last known address of the
defendant, OR in any other manner as the court may deem sufficient (R 14, S. 15) Note that there must
be publication first.

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HOWEVER, in Cariaga Jr. v. Malaya (143 SCRA 441), where extra-territorial service was done by
REGISTERED MAIL, the trial judge gave validity to the service of summons, hence, Cariaga filed a
petition for certiorari. SC said:
There is no question that the requirement of due process has been met as shown by
the fact that defendants ACTUALLY RECEIVED the summons and copies of the
complaint and as evidenced by the Registry Return Card x x x . Whatever defect there
may have been in the service of summons was aptly corrected by the court a quo in its
assailed order x x x which gave said defendants 90 days from receipt of order within
which to file their respective pleadings. Defendants have no reason to complain that they
were unaware of the action filed against them or claim that they were denied due
process.
Sir Bautistas interpretation: Extraterritorial service can be made by:
a) personal service
b) publication
c) Any other manner the court may deem sufficient (includes bus and easy call)
d) Registered mail
Incidentally, Bautista said SEC issued an order that service by bus is valid service.
Q: Suppose a motion to dismiss was filed on the ground of lack of jurisdiction over the person
because the summons was allegedly improperly served and because of improper venue. Is the
first ground waived by being conjoined with the second ground?
A: Yes but this puts the D in a quandary. Under the omnibus motion rule (R. 15, S. 8, i.e., motion
attacking a pleading or a proceeding shall include all objections then available for objections not so
included are deemed waived), D had to include all objections open to him but the Rule on the other hand
says that if he raises a ground other than improper service or summons or lack of jurisdiction over his
person, he is deemed to have submitted himself to the jurisdiction of the court.
Q: Can you serve summons issued by a court?
A: Siempre hindi unless I am authorized.
Q: How about the policeman in the municipality where the court sits?
A: Same answer. Siyempre, he is likewise not authorized.
Note: In Bello v. Ubo (117 SCRA 91), the court said the enumeration of who could serve summons is
EXCLUSIVE. Hence, aside from the sheriff, his deputy or other proper court officer, all others have to be
specially authorized or else service is invalid. In the Bello case, summons was not validly served
because the POLICE SERGEANT who was not a sheriff or a court officer was not authorized by the court
to deliver the summons. Similarly, in Olay v. Anna (90 SCRA 114) where the POSTMASTER of Bato,
Leyte was not qualified , service was deemed invalid.
Q: Can the sheriff be authorized to serve summons in Canada? In what cases can be serve
summons in Canada? Can we not serve summons to Mrs. Marcos?
A: No. Process of the courts effective only within the Philippines just as our judgment cannot be enforced
abroad (R. 135, Secs. 3 and 4 & BP 129)
Q: An English professor came to you for advice. Final judgement against her was made for a sum
of money. Actually, the case was against her husband. Evidently, her lawyer filed a petition in the
SC to annul the judgment. According to her, the sheriffs return read like this:

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Prof. Antonio R. Bautista

Summons was served on her maid, 15 years old, Grade 5 education, in her
cottage in Area 2.
She then said that the maid gave her the summons five (5) months later.Was there a valid
service of summons?
A: NO! The maid is NOT of sufficient age and discretion. She could not have appreciated the importance
of the document given her. Note however that this defect is curable by proof that the summons was
ACTUALLY DELIVERED to the defendant as when D files a motion to dismiss. (Bautista appealed to the
CA on the ground that the service was invalid since the husband is an immigrant (not residing in RP) and
service should be by extraterritorial service (by publication).
Q: In one case, a lawyer was sued. He was declared in default. He sought to set aside the order
of default, even called a psychiatrist to testify. Summons was served on his 21 yr ols son who,
according to him, was mentally retarded. He service was made in the 1 st floor of his house which
was a sari-sari store. Was service valid?
A: SC said YES & scolded the lawyer. SC said that son was of sufficient age and discretion because
although mentally retarded, he was tending the store. If he was smart enough to tend the store, he is
smart enough to understand the significance of summons.
Q: What about substituted service on a receptionist?
A: NO. Rule 14, S 7 says it must be with some competent person in charge of the office or regular place
of business.
Q: If the complaint is amended, is there a need for issuance of summons?
Answer: It depends.
NO if the D has already been served with summons on the original complaint, NO further
summons is required on the amended complaint if it DOES NOT INTRODUCE NEW CAUSES OF
ACTION (Ong Peng v. Custodio, 3/25, 1961);
Yes if the defendant was declared in DEFAULT on the original complaint and the plaintiff
subsequently filed an amended complaint. New summons must be served on the D on the amended
complaint as the original complaint was deemed withdrawn upon such amendment ( Atkins, Knoll and
Co. v Domingo 44 Phil 680).

VI.

PLEADINGS

PLEADINGS written statements of the respective claims and defenses of the parties submitted to the
court for appropriate judgment (R6.1).
PLEADINGS ALLOWED (R6.2)
The CLAIMS of a party are asserted in a:
Complaint
Counterclaim (CC)
Cross-Claim (XC)
3rd (4th) Party Complaint
Complaint-In-Intervention

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The DEFENSES of a party are alleged in the:

Answer (answer to CC, answer to XC, answer to 3PC, etc.)

An answer may be responded to by a:


Reply

BP 129, S. 36
SUMMARY PROCEDURE IN SPECIAL CASES

TO TRY exclusively:

FE UD( irrespective of amount of damages)


* violations of traffic laws, rules & regulations
* violations of rental law (irrespective of paid rentals sought to be recovered) and
* other cases as SC determines

RULES to provide that AFFIDAVITS AND COUNTER-AFFIDAVITS may be admitted in lieu of


oral testimony and that PERIODS FOR FILING PLEADINGS shall be NON-EXTENDIBLE.

Revised Rules on Summary Procedure in MTC Cases, effective 15 November 1991:

In cases under SUMMARY PROCEDURE, the only pleadings allowed are:


1. Complaint
2. Compulsory Counterclaim
if not asserted in answer, barred
3. Cross-claim
4. Answer affirmative and negative defenses not pleaded are deemed WAIVED except
for:
- lack of jurisdiction over subject matter
***answer to counterclaim must be filed and served within 10 days from service of answer

All pleadings must be VERIFIED

Gerales v. CA
Pleadings as well as remedial law should be liberally construed in order that the litigant may
have ample opportunity to prove their respective claims & possible denial of substantial justice,
due to technicalities, may be avoided.
DEFN: A pleading in which a defending party sets forth his defenses. (R6.4)
SC Administrative Circular No. 04-94 (re forum-shopping) issued on 08 February 1994 and
effective 01 April 1994
D) Splitting & joinder of causes of action
3. THE ANSWER
Answer pleading in which the defending party sets forth his defenses (R 6, S 4)
TYPES OF DEFENSES

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1. Negative Defense the specific denial of the material fact/s alleged in the pleading of the
claimant essential to his cause/s of action. (R6.5(a))
Kinds of Denial:
a) SPECIFIC DENIAL - defendant specifies each material allegation of fact the truth of which he
does not admit and set forth the substance of the matters upon which he relies to support his
denial. (R8.10)
- if defendant desires to deny only a part of an averment, he shall specify so much of it as is
true and material and shall deny the remainder.(R8.10)
a) SPECIFIC DENIAL FOR LACK OF KNOWLEDGE OR INFORMATION SUFFICIENT TO
FORM A BELIEF AS TO THE TRUTH OF A MATERIAL AVER-MENT MADE IN THE
COMPLAINT (R8.10)
b) SPECIFIC DENIAL UNDER OATH to contest the authenticity or due execution of an
actionable document. (R 8.8)
- allegations of usury in a complaint to recovery usurious interest must be denied under
oath. (R 9.11)
EXCEPTIONS: No need to specifically deny under oath:
When adverse party not a party to the instrument
When compliance with an order for an inspection of the original document is refused.

a) NEGATIVE PREGNANT a denial pregnant with the admission of the substantial facts in the
pleading responded to which are not squarely denied; in effect an admission of the averment it
is directed to. (Philamgen v. Sweet Lines, 212 SCRA 194 (1993)

1. Affirmative Defense an allegation of a new matter which, while hypothetically admitting the
material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery
by him. (R6.5[b])
includes:
a.
a. Fraud
b. Statute of limitation
c. Release
d. Payment
e. Illegality
f. Statute of frauds
g. Estoppel
h. Former recovery
i. Discharge in bankruptcy
j. Other matters by way of
confession and avoidance.

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1. Implied Admissions defenses and objections not raised in a MTD or answer deemed
WAIVED (R9, S1)
EXCEPTIONS:
a. Lack of jurisdiction over the subject-matter
b. Litis pendentia
c. Res judicata
d. Prescription
D. COUNTERCLAIM, CROSS-CLAIM AND THIRD PARTY COMPLAINT
R6, S6-9,12; R9.2; R11 S8-10
COUNTERCLAIMS (CC)
DEFN: Any claim which a defending party may have against an opposing party. (R6.6)
How raised
GEN RULE: Included in the Answer (R 11, s. 8.. a compulsory cc or a cross-claim that a
defending party has at the time he files his answer shall be contained therein)
EXCEPTION: (when counterclaim or cross-claim may be filed after the answer R 11, S. 9 & 10) :
1. counterclaim or cross claim either matured or was acquired by a
party after serving his pleading (S. 9)
*
How? With permission of the court, by presenting such a
counterclaim or cross-claim by SUPPLEMENTAL pleading
OR
2. Pleader fails to set up a counterclaim or a cross-claim through :
oversight
inadvertence
excusable neglect
when justice requires
*
How? by leave of court BY AMENDMENT before judgment
(S 10)
Kinds of Counterclaims
1. Compulsory CC (R6.7) requisites: (all must be present)
a. arises out of or is connected with the transaction or occurrence constituting the subjectmatter of the opposing partys claim
b. does not require for its adjudication the presence of 3rd parties of whom the court cannot
acquire jurisdiction
c. court has jurisdiction to entertain the claim
1. Permissive CC does not arise out of nor is it necessarily connected with the subject of the
opposing partys claim; not barred even if not set up in the action.
IMPT: A permissive counterclaim requires the payment of docket fees (Sun Insurance v.
Asuncion).
COMPULSORY

PERMISSIVE

DEFINITION

One which arises out of or is


necessarily
connected
with
the
transaction or occurrence that is the
subject matter of the opposing partys
claim
recoupment (Lopez v. Gloria)

Does not arise out of nor is it


necessarily connected with the subject
matter of the opposing parties claim

THIRD-PARTIES

Does not require for its adjudication


the presence of 3rd parties of whom the
court cannot acquire jurisdiction

Requires the presence of 3rd parties


over whom the court cannot acquire
jurisdiction

MUST IT BE SET
UP
IN
THE
ACTION?
TEST

Yes. Otherwise, it is barred. (Rule 9,


Sec. 2)

No. It is not barred even if not set up in


the action.

ALSO CALLED

set-off (Lopez v. Gloria)

The
logical
relationship
between the claim alleged in the
complaint and that in the counterclaim,
i.e., where separate trials of each of
the respective claims would involve a
substantial duplication of effort or time
by the parties and the courts, as where
they involve many of the same factual
and/or legal issues (Meliton v. CA)

Remedies
1. For failure to raise a compulsory counterclaim NONE.
Compulsory counterclaim not set up considered barred. (R9.2)
1. Oversight, inadvertence, excusable neglect, etc. with leave of court, may set up
counterclaim by amendment before judgment. (R11.10)
2. In case main action fails Dismissal of action due to fault of plaintiff shall be without
prejudice to the right of defendant to prosecute his CC in the same or separate action. (R17
S3)
Francisco Motors Corp v. CA (GR No. 100812, June 25, 1999)
Nothing in the Rules of Court says that summons should first be served on the defendant
before an answer to the counterclaim must be made. Although a counterclaim is treated as an
entirely distinct and independent action, the defendant in the counterclaim, being a plaintiff in the
original complaint, has already submitted to the jurisdiction of the court.
CROSS-CLAIM (R6.8)
DEFN: Any claim by one party, AGAINST A CO-PARTY arising out of the transaction or
occurrence that is the subject matter either of the original action or of a counterclaim therein.
IMPT: A cross-claim is ALWAYS COMPULSORY. A cross-claim not set up shall be barred. (R9.2)
Requisites:
1. must be against a CO-PARTY
2. must always arise out of the same transaction that is the subject matter of the original
complaint or of a counterclaim
3. no other parties involved
4. within the jurisdiction of the court
THIRD (4TH) PARTY COMPLAINT

DEFN: A claim that a defending party may, with leave of court, file against a person not a party to
the action for contribution, indemnity, subrogation or any other relief, in respect of his opponents
claim.
REQUISITES:
1. 3RD party defendant (3PD) not a party to the action
2. action is for contribution, indemnity, subrogation or any other relief in respect of his
original plaintiffs claim
3. crucial character is that defendant is attempting to transfer to the 3PD the liability
asserted against him by the original plaintiff.

A 3rd party complaint that is not set up is not deemed barred it may be filed as a separate
action.

TESTS TO DETERMINE WHETHER 3RD PARTY COMPLAINT PROPER:


1. Whether it arises out of the SAME TRANSACTION on which the plaintiffs claim is
based; or WON the 3rd party claim, although arising out of another or different
contract or transaction is CONNECTED with the plaintiffs claim;
2. Whether the 3rd party defendant would be liable to the plaintiff or to the defendant for
all or part of the plaintiffs claim against the original defendant, although the 3 rd party
defendants liability arises out of another transaction; and
3. Whether the 3rd party defendant may assert any defenses which the 3 rd party plaintiff
has or may have to the plaintiffs claim
Balbastro v. CA
If the 3rd party is not secondarily liable to defendant for contribution, indemnity,
subrogation and any other relief in respect to the claim of the plaintiff against defendant, then the
3PC is improper.
Republic v. Central Surety
3rd party complaint is an ancillary suit which depends on the jurisdiction of the court over
the main action.
Allied Banking Corp v. CA
GEN RULE is that the court which has jurisdiction over the res of the main action has
jurisdiction over the 3PC. However, in situations were 3PC filed without undergoing condition
precedent, 3PC will be dismissed independent of the main action.
E.

THE REPLY
R6.10

DEFN: A pleading to deny, or allege facts in denial or avoidance of new matters alleged by
way of defense in the answer and thereby join or make issue as to such new matters. (R6.10)
GEN RULE: Plaintiff has option not to file a reply. In such case, all new matters alleged in the
answer are DEEMED CONTROVERTED. (R6.10)
EXCEPTIONS: A reply must be filed:
1. To challenge authenticity or due execution of an actionable document (R8.8)
2. Allegations of usury in a complaint to recover usurious interest (R9.11) Note that a
responsive pleading to a complaint is the ANSWER, not the reply so reply does not need
to file a reply in this case.

F.

FORMAL REQUIREMENTS OF PLEADING


RULE 7

PARTS OF A PLEADING
1. CAPTION name of court, title of action (the names of parties with their respective
participation in the case indicated), and docket number (R7.1)
2. BODY designation of pleading, allegations of partys claims/defenses, relief prayed for, and
date of the pleading. (R7.2)
3. SIGNATURE AND ADDRESS
RULE: Pleading must be signed by the PARTY OR COUNSEL. (R7.3)
SIGNATURE OF COUNSEL 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;
and
c. it is not interposed for delay.
IF PLEADING UNSIGNED produces no legal effect
BUT court may allow such deficiency to be remedied if due to mere inadvertence and
not intended for delay.
1. VERIFICATION
A pleading is verified by an AFFIDAVIT that the affiant has read the pleading and that
the allegations therein are true and correct of his knowledge and belief
GEN RULE: Pleadings need not be under oath, verified or accompanied by affidavit
XCP: When otherwise specifically required by law or rule

In what cases are a verification required?


a. Petition for relief from judgment or order (Rule 38, Sec. 3);
b. Petition for review from the RTC to the CA (Rule 42, Sec. 1);
c. Petition for review from the CTA and quasi-judicial agencies to the CA (Rule 43 Sec.
5);
d. Appeal by certiorari from the CA to the SC (Rule 45, Sec. 1);
e. Petition for annulment of judgments or final orders and resolutions (Rule 47, Sec. 4);
f. Complaint for injunction (Rule 58, Sec. 4);
g. Application for appointment of receiver (Rule 59, Sec. 1);
h. Application for support pendente lite (Rule 69, Sec. 1);
i. Petition for certiorari against the judgments, final orders or resolutions of
constitutional commissions (Rule 64, Sec. 2);
j. Petition for certiorari (Rule 65, Sec. 1);
k. Petition for prohibition (Rule 65, Sec. 2);
l. Petition for mandamus (Rule 65, Sec. 3);
m. Petition for quo warranto (Rule 66, Sec. 1);
n. Complaint for expropriation (Rule 67, Sec. 1);
o. Complaint for forcible entry or unlawful detainer (Rule 70, Sec. 4);
p. Petition for indirect contempt (Rule 71, Sec. 4);
q. Petition for appointment of a general guardian (Rule 93, Sec. 2);
r. Petition for leave to sell or encumber property of an estate by a guardian (R 95 S1)
s. Petition for the declaration of competency of a ward (Rule 97, Sec. 1);
t. Petition for habeas corpus (Rule 102, Sec. 3);
u. Petition for change of name (Rule 103, Sec. 2);
v. Petition for voluntary judicial dissolution of a corporation (Rule 104, Sec. 1); and
w. Petition for cancellation or correction of entries in the civil registry (R 108 S 1)

MUST BE UNDER OATH:


a. Denial of the genuineness and due execution of an actionable document (R 8, S 8);
b. Denial of allegations of usury (Rule 8, Sec. 11);
c. Motion to set aside a default order (Rule 9, Sec. 3 (b));
d. Answer to written interrogatories (Rule 25, Sec. 2);
e. Answer to request for admission (Rule 26, Sec. 2)
SUPPORTING AFFIDAVITS OR AFFIDAVITS OF MERITS REQUIRED IN:
a. Motion to postpone for absence of evidence (Rule 30, Sec. 3);
b. Motion to postpone for illness of a party or counsel (Rule 30, Sec. 4);
c. Motion for summary judgment or opposition thereto (Rule 35, Secs. 1, 2, 3, 5);
d. Motion for new trial on the ground of fraud, accident, mistake or excusable
negligence or opposition thereto (Rule 37, Sec. 2);
e. Petition for relief from judgment or order (Rule 38, Sec. 3);
f. Third-party claim (Rule 39, Sec. 16);
g. Proof required of a redemptioner (Rule 39, sec. 30);
h. Motion for preliminary attachment (Rule 57, Sec. 3);
i. Motion for dissolution of preliminary injunction (Rule 58, Sec. 6);
j. Application for writ of replevin (Rule 60, Sec. 2);
k. Claim against the estate of a decedent (Rule 86, Sec. 9); and
l. Motion for new trial on the ground of newly-discovered evidence in criminal cases
(Rule 121, Sec. 4)
1. CERTIFICATION AGAINST FORUM-SHOPPING (R7.5)
(See also SC Admin Circular No. 04-94, 8 Feb 1994)
Plaintiff or principal party shall certify under OATH in the complaint or other initiatory pleading,
or in a sworn certification annexed thereto and simultaneously filed therewith:
a. That he has not commenced any action or filed any claim involving the same issued in
any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such
other action or claim is pending therein;
b. If there is such other pending action/claim, a complete statement of its present status;
and
c. If he should thereafter learn that the same or similar action or claim has been filed or is
pending, he shall report that fact within 5 DAYS therefrom to the court wherein his
aforesaid complaint or initiatory pleading has been filed.
NOTE: Absence of certification a cause for DISMISSAL of the case without prejudice, unless
otherwise provided, upon motion and after hearing.

G.

Submission of false certification INDIRECT CONTEMPT


Non-compliance with any of the undertakings INDIRECT CONTEMPT
WILLFUL AND DELIBERATE FORUM SHOPPING a ground for SUMMARY
DISMISSAL WITH PREJUDICE; shall also constitute DIRECT CONTEMPT, as well as a
cause for administrative sanctions.
DETAIL IN PLEADING
R8 S1-9;R12

HOW ALLEGATIONS ARE MADE:


1. IN GENERAL
in a methodical & logical form

plain, concise & direct statement of the ULTIMATE FACTS on which the party
pleading relies for his claim or defense
if defense relied on based on law, cite provisions and their applicability. (R8.1)
TEST OF ULTIMATE FACTS: WON fact/s cant be stricken out without leaving the statement
of the cause of action insufficient (Tantuico v. Republic)
2. CAPACITY aver facts showing:
capacity to sue or be sued; or
authority to sue or be sued in a representative capacity; or
the legal existence of an organized association. (R8.4)
NOTE: If party wants to question the capacity to sue of the other party, he must do so by
SPECIFIC DENIAL with supporting particulars as are peculiarly within the pleaders
knowledge.
3. ALTERNATIVE CLAIMS AND DEFENSES
if one of them if made independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the alternative statements. (R8.2)
4. CONDITION PRECEDENT general averment sufficient (R8.3)
5. FRAUD AND MISTAKE the circumstances constituting fraud or mistake must be stated with
particularity. (R8.5)
6. CONDITIONS OF MIND malice, intent, knowledge or other condition of the mind may be
averred generally. (R8.6)
7. JUDGMENTS sufficient to aver the judgment or decision without setting forth matter
showing jurisdiction to render it. (R8.6)
8. OFFICIAL DOCUMENTS sufficient to aver that the document was issued or the act done in
compliance with law. (R8.9)
9. ACTION OR DEFENSE BASED ON A DOCUMENT (R8.7) allege by:
a. copying a substantial portion of the document into the pleading;
b. annexing or incorporating the document into the pleading; or
c. both copying and annexing the document into the pleading
ACTIONABLE DOCUMENT a document which is really the basis of the cause of action (or
defense), and not merely evidentiary thereof.
H. AMENDED AND SUPPLEMENTAL PLEADINGS R10
AMENDED PLEADING
Supersedes the pleading amended
Either as a matter of right or a matter of
discretion
Reason for the amendment available at time of
the 1st pleading
Must conform to certain formalities
AMENDMENTS
HOW:

SUPPLEMENTAL PLEADING
Supplements the pleading; it exists side by side with
the original pleading
Always a matter of discretion
Grounds for the supplemental pleading arose after
the 1st pleading was filed
Must conform to certain formalities

1. By adding or striking out an allegation or the name of any party; or


2. By correcting a mistake in the name of a party or a mistaken or inadequate allegation or
description in any other respect. (R10.1)
PURPOSE: To have the actual merits of the controversy speedily determined, without regard to
technicalities, and in the most expeditious and inexpensive manner. (R10.1)
Barfel Devt. Co. v. CA
Liberality in allowing amendments is greatest in the early stages of a lawsuit, decreases as it
progresses, and changes at times to a strictness amounting to a prohibition.
FORM: File a new copy of the entire pleading, incorporating the amendments, which shall be
indicated by appropriate marks. (R10.7)
EFFECT: The amended pleading SUPERSEDES the pleading that it amends.
Admissions in superseded pleadings may be received in evidence against the
pleader;
Claims/defenses in superseded pleading not incorporated in the amended pleading
shall be DEEMED WAIVED. (R10.8)
KINDS
1. FORMAL AMENDMENTS (R10.4)
Defect in the designation of the parties; or
Other clearly clerical or typographical errors
HOW AMENDED: By the court motu propio or by motion
WHEN: At ANY STAGE of the action
CONDITION: No prejudice is caused to the adverse party
1. SUBSTANTIAL AMENDMENTS
a. As a MATTER OF RIGHT allowed ONLY ONCE
before a responsive pleading is served; OR
In the case of a REPLY, at any time within 10 DAYS after it is served. (R10.2)
a. As a MATTER OF DISCRETION by leave of court
HOW MADE?
Upon motion
Notice to adverse party; and
Hearing
GROUND FOR DENIAL: If motion is made with intent to delay. (R10.3)

1. TO CONFORM TO EVIDENCE (IMPLIED AMENDMENT) (R10.5)

Issues not raised in the pleadings


Tried with the express or implied consent of the parties
Treated in all respects as if they had been raised in the pleadings
PURPOSE OF AMENDMENT:
To cause pleadings to conform to evidence or
To raise these issues
HOW DONE: By motion

WHEN: At ANY TIME, even after judgment


BY WHOM: By any party
EFFECT OF FAILURE TO AMEND: No effect on the result of the trial on these
issues.
IF EVIDENCE IS OBJECTED TO AT THE TRIAL ON THE GROUND THAT IT IS NOT
WITHIN THE ISSUES MADE BY THE PLEADINGS: Court may allow the pleadings to be
amended and shall do so with liberality IF presentation of the merits of the action and the
ends of substantial justice will be subserved.
Court may grant continuance to enable amendment to be made.
SUPPLEMENTAL PLEADING (R10.6)
REQUISITES:
Motion of a party
Reasonable notice
Upon such terms as are just
CONTENTS: Transactions, occurrences or events which have happened since the date of the
pleading sought to be supplemented.
Shoemart v. CA
A supplemental complaint or pleading supplies DEFICIENCIES in aid of an original
pleading, not to entirely substitute the latter. Unlike in an amended complaint, the original
complaint exists side by side with the supplemental complaint.
I.

PERIODS FOR PLEADING


R11; R22

ANSWER TO:

FILE WITHIN:

Complaint

15 days from service


of summons

Amended
complaint as a
matter of right

15 days from service


of copy

Amended
complaint
with
leave of court

10 days from notice of


order
admitting
amended complaint

Counterclaim

10 days from service

Crossclaim

10 days from service

rd

th

COMMENT
If def a foreign private juridical entity and service
of summons is made on the govt official
designated by law to receive them, file answer
within 30 DAYS after receipt of summons by
such entity.

If no new answer is filed, an answer earlier filed


may serve as the answer to the amended
complaint

3 (4 , etc.) party
complaint

15 days from service


of summons

Supplemental
complaint

10 days from notice of


order admitting the
same

The answer to the complaint shall serve as the


answer to the supplemental complaint if no new or
supplemental answer is filed.

Complaint-inintervention

15 days from notice of


order admitting the
same

Court may prescribe a different period

Period to file an answer may be extended upon motion and on such terms as the court may
find just. (R11.11)

Reply: file 10 DAYS from service of pleading responded to.


J.

FILING AND SERVICE OF PLEADINGS AND OTHER PAPERS R13

FILING the act of presenting the pleading or other paper to the clerk of court. (R13.2)
SERVICE the act of providing a party with a copy of the pleading or paper concerned. (R13.2)
COVERAGE (R13.1 and R13.4)
1. Judgment
2. Resolution
3. Order
4. Pleading subsequent to the complaint,
5. Written motion
6. Notice
7. Appearance
8. Demand
9. Offer of judgment or similar paper
FILING OF PLEADINGS AND PAPERS
PERSONAL

REGISTERED MAIL

WHEN RESORTED TO

Whenever practicable;
It is the preferred mode of filing

When personal filing is not


practicable

HOW DONE

Presenting
the
originals
personally to the clerk of court

Sending via registered mail

CONSIDERED DATE OF
FILING

Date and hour presented to


clerk of court

Date of mailing, as shown by


the post office stamp on the
envelope or the registry receipt

PROOF OF FILING, IF
NOT IN THE RECORD

Written
or
stamped
acknowledgment of filing by
clerk of court on a copy of the
pleading

Registry receipt, and by the


affidavit of the person who did
the mailing

SERVICE OF PLEADINGS & PAPERS


PERSONAL
HOW
DONE

Delivering
personally a copy
of the papers to
the party or his
counsel;
Leaving papers in

REGISTERED MAIL

ORDINARY MAIL

SUBSTITUTED
SERVICE

Depositing a copy in
the post office, in a
sealed
envelope,
plainly addressed to
the party or his
counsel at his office,
or at his residence

Posting via ordinary


mail

Delivering a copy to
the clerk of court, with
proof of failure of both
personal service and
service by mail

partys office with


his clerk or with a
person
having
charge thereof;
Leaving the copy
(between
8AM6PM) at partys or
counsels
residence, with a
person
of
sufficient age and
discretion residing
therein
WHEN
COMPLE
TED

Upon
delivery

actual

Upon actual receipt


by the addressee, or
after 5 DAYS from the
date
addressee
received the 1st notice
of the postmaster,
whichever date is
earlier

Upon expiration of
10
DAYS
after
mailing, unless the
court
provides
otherwise.

PROOF
OF
SERVICE

Written admission
of
the
party
served; or

Affidavit of the person


mailing
of
facts
showing compliance
with Sec. 7 of Rule
13;

Affidavit
of
the
person mailing of
facts
showing
compliance
with
Sec. 7 of Rule 13

Official return of
the server; or
Affidavit of the
party serving,
Containing a full
statement of the
date, place and
manner of service

At the time of delivery


to the clerk of court

Registry
receipt
issued by the mailing
office

Registry return
card shall be filed
immediately upon its
receipt by the sender,
or in lieu thereof, the
unclaimed
letter
together with the
certified or sworn
copy of the notice
given
by
the
postmaster to the
addressee

PERSONAL SERVICE always the preferred mode. (R13.11)


If other modes: must be accompanied by a WRITTEN EXPLANATION why the service or
filing was not done personally.
EXCEPTION: Papers emanating from the court
If no written explanation is filed: paper considered not filed.

NOTE: Party in default entitled to NOTICE of subsequent proceedings but not to take part in the
trial (R9.3[a])

Bautista
1. Function of Pleadings
1.1.
To define issues so both parties and the court know the issues; narrows down
and clarifies the issues. Issues are important in determining defenses (e.g. litis
pendentia, res judicata re identity of issues or WON issues necessarily
adjudicated in prior action)
**identify TRIABLE issues
1.1. To give notice - notice to other parties of claims /defenses; and to the court as to
the cause of action or defense

1.2.

To characterize action or proceeding ordinary civil action or special


proceedings If it is an ordinary civil action , it will fall under a particular set of rules
. The objective is to AVOID CHAOS.

2. Rules Governing a Complaint


DEFN: The pleading alleging the plaintiffs cause/s of action.
residences of the plaintiff/s and defendant/s.

States the names and

Every ordinary civil action must be based on a cause of action (R2.1)


CAUSE OF ACTION is the act/omission by which a party violates a right of
another (R2.2)
3 ELEMENTS OF A CAUSE OF ACTION
a. legal right of plaintiff,
b. correlative legal duty of defendant and
c. act/omission of defendant in violation of plaintiffs right with
consequential injury or damage to the plaintiff

2.1.

Must have all the PARTS

A. Caption
1. Name of the Court
2. Title of the Action
3. Names of the Parties (same for record on appeal)

ONLY OTHER PLEADING which require names of all the parties


Note that docket number is assigned by the court (so no docket
number pa at this stage)

B. Body
1. Designation - Complaint
2. Allegation
3. Actionable documents

written instrument upon which the claims/defenses are based.


Legal Significance of actionable document - if not
specifically denied under oath, document is deemed
to be:

genuine and
duly executed

4. Paragraphs --- numbered; 1 paragraph = 1 set of circumstances

C. Prayer for Relief

Legal significance of relief R 9, Sec. 3(d) : a judgment rendered


against a party in defauolt shall NOT EXCEED the amount or be
DIFFERENT in kind from that prayed for nor award unliquidated
damages.
in ALL OTHER judgments court may award reliefs greater or other
than those prayed for
Rule 10, S. 5 - amendment to conform to or authorize presentation
of evidence

C. Signature and Addresses- R. 7.3


1. What it means - jurisdiction
2. Effect of lack
E. Verification ( required if a provisional remedy is prayed for)
F. Certification Against Forum Shopping
2.2.

Essential Allegation

A. All constitutive/operative facts (of the cause of action)


1. Ultimate facts only (not evidentiary facts or conclusions of fact)

Rule 8, S. 1 Every pleading shall contain in a methodical and


logical form, a PLAIN, CONCISE and DIRECT statement of the
ULTIMATE FACTS on which the party pleading relies for his claim or
defense, as the case may be, omitting the statement of mere
evidentiary facts.
Rule 8, S. 11 Allegations NOT specifically denied deemed
admitted.

1. Material facts only


2. No allegation of law nor conclusions of law
B. Allegations of specific matters:
capacity/authority to sue (Rule 8, S. 4); to deny legal
existence of any party or the capacity of any party to sue or
be sued in a
representative capacity, one must
SPECIFICALLY DENY same;

Condition precedent (R. 8, S. 3)

Fraud, mistake, condition of mind (R 8, S. 5) : in all


averments of fraud or mistake, the circumstances
constituting fraud or mistake must be stated with
PARTICULARITY. Malice, intent, knowledge or other

condition of the mind of a person may be averred


GENERALLY.

Specific amount of damages


claim for monetary damages should be specified
(what is the legal basis?)
totality rule

C. Alternative/ Hypothethical/ Inconsistent C/a/ Defenses

Rule 8, S. 2: Alternative Causes of Action - A party may set forth 2


or more statements of claim or defenses alternatively or
hypothetically, either in one cause of action or defense or in
separate causes of action or defenses. When 2 or more statements
are made in the ALTERNATIVE, and one of them if made
independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the alternative
statements.

Service of Pleadings
1. Personal
Personal service is the preferred mode. If one cannot serve the pleadings by
personal service, counsel must explain why (i.e. no messenger, distance)
Personal service is complete upon actual delivery.
2. Mail
a. Registered
Service by registered mail is complete upon actual receipt by the
addressee or after 5 days from the date he received the first notice
of the postmaster.
b. Ordinary
Service by ordinary mail is complete upon the expiration of 10 days
after mailing unless the court provides otherwise.
3. Substituted Service
The lawyer of a party must give his office address. The address cannot be a post
office box. The law does not allow pleadings to be mailed to P.O. boxes because no one
would sign the receipt.
Filing of Pleadings
1. Personal
2. Registered Mail Only
The date of mailing is the date of filing.
Service of Judgments, Final Orders or Resolutions (Sec. 9, Rule 13)
1. Personal
2. Registered Mail
3. Publication -- When a party summoned by publication has failed to appear in the
action, judgments, final orders or resolutions against him shall be served upon him by
publication.

Pleadings are the written statements of the respective claims and defenses of parties.
The following are the functions of pleadings:
1. notice giving
a. giving notice to the claim
b. giving notice to the defense
2. issue defining for purposes of litis pendentia or res judicata.
3. categorize (i.e. special civil action, special proceeding)
In the Rules of Summary Procedure, the general rule is that a motion to dismiss is
not allowed. The exception is a motion to dismiss on the ground of lack of jurisdiction.
Pleadings must state the ultimate facts only and not the evidentiary facts. Ultimate
facts are also called operative facts which means those facts which constitute a cause of
action.
It is important to allege the ultimate facts for 2 reasons:
1.

If ultimate facts are not alleged then the complaint is insufficient. It is


vulnerable to a motion to dismiss for failure to state a cause of action.
2.
If the complaint alleges more than the ultimate facts, then it is vulnerable to a
motion to strike since the other allegations would be irrelevant.
Problem: The plaintiff alleges in his complaint that the defendant owes him
P1,000,000 which is due and demandable. Is this complaint sufficient?
Answer: No, the complaint is not sufficient. The complaint must still allege
when, how and other issues of fact.
The denial of the allegations in the complaint should create the issue of
fact. Under Rule 34, judgment on the pleadings is allowed if there are no triable
issues. If the defendant denies the allegations, then there are triable issues.
2 Kinds of Denials
1. General Denial
This is not allowed by the Rules of Court.
There is a general denial when the defendant denies
everything without denying it per paragraph
2. Specific Denial
a. by specifically denying the averment and
whenever possible, setting forth the substance of
the matters relied upon for such denial
b. by an allegation of lack of knowledge or
information sufficient to form a belief as to the truth
of the averment in the opposing partys pleading
A negative pregnant is a denial pregnant with an admission a bad
pleading (2ND sentence of Sec. 10, Rule 8).

The following are the instances wherein a specific denial is insufficient


but must be under oath:
1. allegations of usury
2. the authenticity and due execution of actionable documents properly
pleaded where the opposing party was a party thereto.
Problem: Plaintiff files a case for collection of sum of money based on a
promissory note. The complaint alleges that the plaintiff remains unpaid.
The complaint alleges that the defendant tried to pay the note with other
notes which the defendant deceived plaintiff into accepting through
defendants misrepresentations.
In the defendants answer, the
defendant did not deny the allegations that he deceived the plaintiff in
accepting the other notes. Is the defendants failure to deny that
allegation an implied admission?
Answer: No, it is not an implied admission. Such allegation is not a
material averment. It was merely an allegation in anticipation of a
defense.
Problem: Plaintiff files a case for collection of sum of money based on a
promissory note. The complaint alleges that the plaintiff remains unpaid.
The complaint alleges that the defendant tried to pay the note with other
notes which the defendant deceived plaintiff into accepting through
defendants misrepresentations.
In the defendants answer, the
defendant did not deny the allegations that he deceived the plaintiff in
accepting the other notes. At the trial, the defendant alleges that there
was no valuable consideration for the promissory notes. Is the defendant
barred from alleging this?
Answer: No, Sec. 8, Rule 8 talks of genuiness and due execution. It
does not speak of the validity of the contract itself.
Joinder of Parties compulsory
Joinder of Causes of Action always permissive
The statement that the joinder of causes of action is permissive must be qualified
Sec. 47, Rule 39 (b) provides, The effect of a judgment or final order rendered
by a court is that in other cases, the judgment or final order is, with respect to the
matter directly adjudged or as to any other matter that could have been raised in
relation thereto, conclusive between the parties and their successors in interest
by title subsequent to the commencement of the action or special proceedings,
litigating for the same thing under the same title and in the same capacity.
Causes of Action are important:
1. In order to see if there is splitting of a cause of action.
Problem: A, driving a Ford Expedition, hits B who is driving a Kia Pride. B
is injured. Bs car is insured. The insurance company pays for the damage
to Bs car. B files a suit against A for physical injuries. The insurance
company files a suit against A for damages against the car. How many
causes of action are there? Is there a splitting of a cause of action?

Answer: According to Prof. Bautista, there is only 1 cause of action. The


test is to count how many rights were violated. The number of rights violated
would be the number of causes of action. In this case, there is only 1 cause
of action. The analogy is similar to a person having 1 leg and 1 arm injured.
Does this mean the person files a case for the leg and one for the arm.
There would be 2 causes of action here if B is injured and the car B was
driving was owned by someone else.
2. In order to see if there are 2 or more causes of action.
3. For amendments of the cause of action.
4. Motions to Dismiss
a. res judicata
b. ltis pendentia
c. failure to state a cause of action
It is important to note that compulsory counterclaims have no filing fees
(the problem however is that the clerk of court does not have the judicial power to
determine whether the counterclaim is compulsory or not).
Rule 141 provides for filing fees. Under the ruling in the Manchester
case, the Supreme Court said that the filing fee will be determined by the amount
prayed for with respect to all the damages.
A counterclaim is compulsory when:
a) it arises out of, or is necessarily connected with, the transaction or
occurrence which is the subject matter of the opposing partys claim;
b) it does not require for its adjudication the presence of 3 rd parties of
whom the court cannot acquire jurisdiction
Under Sec. 2, Rule 9, a compulsory counterclaim which is not set up
shall be barred.
Problem: The complaint is with the MTC. The counterclaim is for
P1,000,000. Does the MTC have jurisdiction over the counterclaim? The
complaint is with the RTC. The counterclaim is for P10,000. Does the RTC have
jurisdiction over the counterclaim?
Answer: The general rule is that the court must have jurisdiction over
the nature and the amount. The exception is with regard to compulsory
counterclaims. Regardless of the amount, the court would have jurisdiction over
the compulsory counterclaim.
Problem: The complaint is with the RTC. There is a counterclaim for unlawful
detainer? Does the RTC have jurisdiction over the counterclaim?
Answer: No, the RTC does not have jurisdiction over the counterclaim. Sec. 7,
Rule 6 provides that such a counterclaim must be within the jurisdiction of the
court both as to the amount and the nature thereof, except that in an original
action before the RTC, the counterclaim may be compulsory regardless of the
amount. The exception refers only to amount and not to the nature.

as to the amount and the nature thereof, except that in an original action before
the RTC, the counterclaim may be compulsory regardless of the amount. The
exception refers only to amount and not to the nature.
as to the amount and the nature thereof, except that in an original action before
the RTC, the counterclaim may be compulsory regardless of the amount. The
exception refers only to amount and not to the nature.
Problem: A wife files an action for separate maintenance. The husband
answers with a counterclaim for legal separation, adultery being the ground. The
husband impleads the paramour as a defendant in the counterclaim. In a
separate case, the paramour files an action against the husband for libel
because of the husbands malicious imputation. The husband files a motion to
dismiss on the ground that the paramours action is a compulsory counterclaim
which is barred.
Answer: No answer.
The test for determining whether the counterclaim is compulsory is the
logical relationship between the claim alleged in the complaint and that in the
counterclaim, i.e. where separate trials of each would involve a substantial
duplication of effort or time by the parties and the courts, as where they involve
many of the same factual and/or legal issues.
Cross claims are permissive when:
a) the cross claim is outside the jurisdiction of the court
b) the court cannot acquire jurisdiction over the parties
It is always important to remember that cross claims must always arise
out of the same transaction.
A party does not suffer any adverse consequences if he does not file a
reply since new matters are deemed controverted if no reply is filed. Although
the reply is optional, filing a reply according to Prof. Bautista may be useful if one
wants to bring in new matters. Remember, the general rule is that one cannot
alter the theory of the original complaint. In order to bring in new matters, file a
reply.
In amendments of pleadings, it is important to see if there is a substantial
alteration of the cause of action or if there is merely an amplification. Parties can
augment or amplify but they cannot depart from the original theory of the
pleading. Generally courts are stricter with amendments of the complaint. If the
courts do not allow the amendment, the plaintiff can always file another case.
The courts are more liberal in amendments of answers.
PROBLEMS AND CASES ON PLEADINGS:
Q: Is there a need for new summons if the complaint is amended?
A: It depends.
a) YES if new D is added
b) YES if complaint amended as a matter of right before answer is filed
c) NO if with leave of court after answer has been filed

Q: Is leave of court necessary for the plaintiff to amend the complaint?


A: Again, it depends. Leave of court is necessary if the D has already filed the answer. But the
plaintiff can amend the complaint as a matter of right (no leave of court needed) if D has not filed
and served his answer.
Q: A sued B for damages in the original complaint based on tort. B filed answer. Then, A
filed a motion to amend the complaint. Complaint was amended on the theory of FRAUD.
Additional allegations were added in the complaint, i.e, that the plaintiff was a passenger
in Ds bus, thereby anchoring legal theory on a breach of contract. Can this new theory
be allowed?
A: No (this is the answer before because it would amount to a substantial amendment of the
theory of the case as then provided) But I submit that under the new Rule (R. 10, S 3), this may
be allowed because the only ground for the court to refuse the amendment is when the motion to
amend appears to be made with INTENT TO DELAY )
Q: If you change the legal theory, does it mean that you change the cause of action? Is
the legal theory that which characterizes the operative or constitutive facts of the cause of
action. Suppose in a case, the parties are A, B, C, D and E. Does it mean that if you
remove E, there is a substantial amendment?
A: (No answer but I infer that the answer depends). But in the above case, the change in theory
also changes the cause of action from a tort to a breach of contract.
Q: In an action on a PN, D puts up the defense of PAYMENT but D later on moves to amend his
answer, saying that the PN was executed upon Ps fraudulent inducement, thereby changing his
previous defense of just payment/ Is that okay?
A: Greater liberality is shown by the courts in allowing amendments of answer than amendments
to complaint. WHY? Because if you allow amendments to the complaint, it will amount to
changing of facts on which the defense is based and to a substantial amendment which is
disallowed. NO PREJUDICE TO THE PLAINTIFF IN SHORT. The plaintiff can still file another
complaint. But if you disallow an amendment to an answer, wala na.
Q: A supplemental complaint changed the cause of action in the original complaint.
Substantially, can this be done?
A: NO! If it involves new matters, it will change the theory of the case. The supplemental
complaint must relate to the cause of action in the original complaint.
Q: So what is the difference between an amended and a supplemental complaint?
A: AMENDED: facts already occurred while the original complaint was filed.
SUPPLEMENTAL: facts arose AFTER the filing of the original complaint.
Q: In what cases may an amendment to conform to evidence warranted?
A: When the facts had already been tried with the express or implied consent of the party (R 10,
S. 5)
Q: What if the complaint only contains conclusions of law?
A: Ask The court for a BILL OF PARTICULAR (R 12 need for definite statement of any matter
not averred with sufficient definiteness or particularity to enable him to properly prepare his
responsive pleading)
Q: What is an example of conclusion of law ?
A: defendant drove negligently.
Q: How to make it statement of ultimate facts?
A: defendant drove without brakes.
Q: Action to recover a sum of money. The complaint said that:
1. plaintiff rendered certain services to D on Saturday.
2. On such date, BY FRAUD OR MISREPRESENTATION, D induced P to accept in
payment a PN annexed(?) to A, B. C or 3rd party.

In the answer, the allegation that the services were performed and an obligation as incurred
therefor. But in defense. D said that obligation was paid by the PN but he did NOT specifically
deny the allegation that the note was forced upon the plaintiff by fraud or misrepresentation. P
now moves for judgment on the pleadings on the ground that there was implied admission of that
allegation in the complaint which was not specifically denied. Rule on the motion.
A: Deny the motion for judgment on the pleadings. The allegation need NOT specifically be
denied under pain of an implied admission because it is NOT A MATERIAL ALLEGATION as to
the cause of action.
Q: What is meant by material?
A: It is material if it constitutes the cause of action. In CAB, 2 ND allegation is in the nature of an
anticipatory defense to Ds defense of payment by PN.
Q: What is a negative pregnant pregnant with?
A: It is pregnant with admission.
Q: What rule prohibits a negative pregnant? (bad pleading)
A: R. 8, s. 10 (2 nd sentence) Where a defendant desires to deny only a part of an averment, he
shall specify so much of it as is true and material and shall deny only the remainder.
Q: You filed an action for damages wherein you allege in the complaint that D negligently
drove his vehicle without regard to the conditions of the road, traffic, etc. D answered with
a negative pregnant. Can you move for judgment on the pleadings? When is judgment on
the pleadings proper?
A: Yes. A negative pregnant is a denial pregnant with admission of the substantial facts alleged in
a pleading. As stated in one case (Galofa v. Nee Bon Seng 22 SCRA 48): a denial in the form
of a negative pregnant is an AMBIGUOUS pleading, since it cannot be ascertained whether it is
the fact or only the qualification that is intended to be denied. Where a fact is alleged with some
qualifying or modifying language, and the denial is conjunctive, a negative pregnant exists and
only the qualification or modification is denied while the act itself is admitted. Judgment on the
pleading is proper when (R 34, s. 1):
1. an answer fails to tender an issue
2. an answer admits the material allegations of the adverse partys
pleading.
Q: What is the effect of a negative pregnant?
A: It is an admission of the substantial averments in a complaint.
Q: Complaint for a sum of money alleges that D borrowed money from P and has not paid
it on maturity and while D holds a supposed document purporting to be a receipt for
payment signed by P, this receipt was obtained by D by misrepresentation. Ds answer
does not deny the allegations of the complaint with respect to the objections over the
receipt of payment by misrepresentation. Is the allegation of the complaint to the effect
that there is misrepresentation deemed to have been impliedly admitted?
A: No. R 9 s. 1. Only the material facts are deemed admitted. Material averments in the
complaint, other than those as to amount of damages, shall be deemed admitted when not
specifically denied.
Q: What are the 2 kinds of specific denial?
A: 1) D to specify each material allegation of fact the truth of which he does not admit and
whenever practicable, shall set forth the substance of the matters upon which he relies to support
his denial.

2) where a D is without knowledge or information sufficient to form a belief as to the truth of a


material averment made in the complaint, he shall so state and this shall have the effect of a
denial.
Q: Action to recover damages arising from physical injuries incurred in a vehicular
accident estimated to be P50T. The answer contains nothing but general denials. Plaintiff
moves for judgment on the pleadings. Resolve.
A: Motion GRANTED because of R 9, S. 11 (Allegations not specifically denied deemed
admitted..)
Q: When must a D answer under oath?
1. when complaint pleads an actionable document because failure to deny under oath
means admitting the genuineness and due execution of that document.
2. When complaint alleges USURY (R. 9, S. 11) because allegations of usury in a complaint
to recover usurious interest are deemed admitted if not denied under oath.
Q; In what cases is a reply mandatory or where failure to reply would have adverse
consequences?
A: In cases where:
1. answer is based on actionable document (the genuineness and due execution of
which will be deemed admitted if the document is not specifically denied under oath
(R 8, s. 8)
Note: New Rules does not anymore say that when the answer raises NEW MATTERS,
there is a need for a reply, otherwise the new matters will be deemed admitted. Now, R 6, S. 11
says that x xx if the party does NOT file such reply, all the new matters alleged in the answer
are deemed controverted (disputed).
Note also that re USURY, R 9, S. 11 refers to the complaint, the responsive pleading to
which is an ANSWER (not a reply) so that it is only when allegations of usury in a complaint to
recover usurious interest are deemed admitted if not denied under oath (in the answer).
Q: Action on a PN which was made an integral part of the complaint. There is no specific
denial of the genuineness and authenticity of the attached PN. At the trial, D would like to
introduce evidence to show that he signed the note as an agent for an undisclosed
principal and not for his own behalf. Would that evidence be admissible?
A: YES. The evidence does not relate to the genuineness and due execution of the PN. Note that
failure to deny the PN (actionable document) only means admission of the genuineness and due
authenticity thereof , nothing more.
Q: Is the prayer in the complaint an essential part of the complaint? What is the legal
significance of the prayer?
A: Yes. R. 7, S. 2 (c) requires the prayer as part of the body. In Ras v. Sua, the court said: it is not
the caption of the pleading but the allegations therein that determine the nature of the action and
the court shall grant the relief warranted by the allegations and the proof even if no such relief is
prayed for.
Bautista: There is one instance wherein the court cannot award more than what
is asked for in the prayer or any relief different from what is asked for. Here, the prayer
serves as a limitation. And this is the case where the other party is IN DEFAULT (R. 18,
S. 5).
Q: What happens when an attorney of record does NOT SIGN a pleading?
A: That pleading may be STRICKEN OFF the record so it is without any legal effect (R 7, S. 3)

Q: When a party is represented by counsel, in what instances may the court direct that an
order be served on the party himself and not on the attorney of record?
A: When the court directs something to be done by the party himself.
Q: As a general rule, when should a pleading be verified?
A: When you assert facts which are not of record (R 133, S 7) re Evidence on Motion, The Court
may hear the matter on affidavits and depositions presented by respective parties.
Q: Is a complaint which alleges that defendant negligently drove his car causing injuries to
the plaintiff sufficient? Why?
A: Yes, such is of a kind of mixed conclusion of fact and law, which are succinct and have a
definite meaning to lawyers and is deemed a sufficient allegation.
Q: How about a complaint that alleges that D caused P injuries in an unlawful manner?
A: Insufficient. It does not enable the D to plead and prepare for trial. It does not state facts
showing what acts were done and how unlawfully they were executed.
Q; Complaint filed in RTC. MTD on the ground of subject matter jurisdiction. Suit was for
recovery of P17T principal, P3 T interest and P3T attorneys fees. While motion pending
resolution, P amended complaint and increased attorneys fees to P5T. Is the amendment
proper?
A: MTD not a responsive pleading (R 10, S 2) so amendment is allowed as a matter of right.
HOWEVER, where the amendment is allowed, the result would be that the court is conferred
jurisdiction over the subject matter where it had none in the first place and this cannot be allowed.
(Note that the jurisdictional amounts under BP 129 exclude attorneys fees and the amounts are
increased to P200T and P400 T in Metro Manila for RTC jurisdiction).
Case: Rosario v. Carandang A proposed amendment may be refused when it confers
jurisdiction on the court in which it is filed when the cause of action set forth is not originally within
the courts jurisdiction.
***Bautista thinks it is arguable that such amendment conferring jurisdiction on the court which
originally had none is allowed when the P is making the amendment as a matter of right.
Q: Can new causes of action be alleged in a supplemental complaint?
A: Yes, provided that:
1. they relate to the transactions, occurrence, events which arose since the
date of pleading sought to be supplemented and provided further that
2. they relate to the subject matter of the pleading sought to be
supplemented
Q: July 1- Summons served with copy of the complaint (so until 7/16 to answer)
July 10-MTD filed (4 days left to answer)
8/1 - Order of denial of MTD received
When is the last day for D to answer?
A: July 6 because under R 16, S4, the D must answer during the balance of the period to file an
answer but in no case shall this be less than 5 days.
Q: Same facts. What if on 7/14, a bill of particulars was filed and on 8/1, D received order of
denial of Motion for BOP. When is the last day to file his answer?
A: 8/16. R 12 S 5 says the moving party may file his responsive pleading within the period to
which he was entitled at the time of filing his motion, which shall not be less than 5 days in any
event. (compare this with R 16, S. 4 within the BALANCE of the periodbut not less than 5
days in any event..)

Q: How many days to answer 3rd party complaint?


A: 15 days (R 11 S 5)
Q: How many days to answer complaint in intervention?
A: 15 days (R 19, S 4)
Q; Re service of pleadings. When is service complete?
A: Personal service - upon actual delivery
Ordinary mail
upon expiration of 10 days after mailing unless provided otherwise
Registered mail - upon actual receipt by addressee or
after 5 days from date of first notice of the postmaster
Q: D filed motion for BOP. This was denied. Within the time for filing pleading, D files
motion to dismiss for improper venue. P opposes MTD on the ground that objection to
improper venue was not raised in the first instance and so deemed waived. Rule on MTD.
A: MTD denied. Bautista says that questions on venue must be raised at the earliest time
possible because you have to resolve it at once. So if an objection to venue is denied, elevate it
to the higher court at once on certiorari.
Q: A stays in AIT hotel for a few days. He is not from QC but from Surigao. He makes QC
the venue of his suit against B who is in Surigao. Is this proper? Can A be served with
summons in AIT hotel?
A: A cannot make QC the venue of his suit because it is not his residence (R 4). However, A can
be served with summons at AIT hotel because under R 14, if personal service is effected and not
substituted service, it is okay to serve A with summons wherever he may be not, not necessarily
his residence.
CAUSE OF ACTION : central concept of the Rules
1. rule v. splitting of cause of action
2. case law on substantial amendments to complaints ( those that alter the cause of
action)
3. litis pendentia

Rule 16, S. 1(e):MTD ground..there is another action pending b/w same


parties for same cause

4. res judicata

Rule 16, S. 1 (f)

5. rule on sufficiency

VII.

Rule 16, S. 1 (h)..claim/demand has been paid, waived, abandoned or


otherwise extinguished

MOTIONS

Motions are not pleadings. A motion is an application for relief other than by a pleading.
When a motion is based on facts not appearing of record, the court may hear the matter on
affidavits or depositions presented by the respective parties, but the court may direct that the
matter be heard wholly or partly on oral testimony or depositions. (Rule 133, Sec. 7)
Q: What motions dont have or need not have to bear notice of hearing?

A: Bautista: Motions made ex parte. Example: Motions of continuance and where matter is not
litigable, not controversial.
Q: Suppose a motion is filed on July 1. When is the earliest time that it can be set for hearing?
A: After 3 days, July 4.
Q: What is motion day under the rules?
A: Except those motions requiring immediate action all motions should be scheduled for hearing
on Friday afternoons or if Friday is a non-working day, in the afternoon of the next working day.

The receipt for the form of the notice of hearing advises the adverse party of the date,
place and time of hearing. It is mandatory; it is strictly enforced. Failure to comply with this
requirement as to form will result in a fatal defect. The motion will be tantamount to no motion at
all and to use the colorful language of the court, it can be deemed an outlaw that can be slain on
sight. The government is especially critical with respect to motion for new trial which as you
know includes motion for reconsideration. can you imagine a motion with a notice of hearing
worded like this:

Clerk of court
Regional Trial Court of Makati
Branch 5
Greetings,
Please submit the foregoing motion for reconsideration for approval of the court
on such date and time as may be convenient to it.

This is a defective notice of hearing of motion. The burden is on the party or the movant
to set the date, place and time of hearing. This cannot be made dependent on the clerk. If a
motion for new trial for instance has such defective notice of hearing it will amount to no motion at
all. Therefore, it will not interrupt the running of the period for the finality of the judgment which
will then become executory. Such is the importance of the form of the notice for hearing.

VIII. OBJECTIONS TO PLEADINGS


(also, WAYS OF CHALLENGING PLEADINGS)
Most objections to pleadings would concern the complaint.
There are various devices by which a civil action may be pre-terminated, without going to a fulldress trial:
(1) MOTION TO DISMISS
(a) Rule 16

A court may dismiss motu proprio a case on the following


grounds (Sec.1, Rule 9):
(i)
lack of jurisdiction over the subject matter
(ii)
litis pendentia

(iii)
(iv)

res judicata
prescription of the action

The general rule however is that a motion must be filed in


order to dismiss a case. (Sec. 1, Rule 16) Dismissal by motu proprio is the
exception.

Sec. 20, Rule 14 abandons the old rulings of the Supreme


Court to the effect that a motion to dismiss on the ground of lack of
jurisdiction over the person should be based exclusively on that ground. The
rule now is in accord with the Omnibus Motion rule in Sec. 8, Rule 15. Thus,
the defendant may now give other grounds other than the fact that the court
has not acquired jurisdiction over the person special appearance.

The following are the possible rulings a court can make in


a Motion to Dismiss:
(1) grant the motion
(2) deny the motion
(3) amend the pleading

Under Sec. 3, Rule 16, there is no more deferment. The court is no longer
allowed to defer the resolution of the motion until the trial if the ground alleged
does not appear to be indubitable.

It is has been held that a denial of a motion to dismiss is


not appealable, the order being interlocutory. But according to Prof. Bautista,
he thinks that parties should be able to appeal right away if the motion to
dismiss is denied. Why should the parties wait right that long.

Problem: Defendant files a motion to dismiss on the ground of lack of capacity to sue. The court
denies the motion. Can the defendant re-plead lack of capacity to sue as an affirmative defense?
Answer: No, the general rule is that if a Motion to Dismiss has been filed, the grounds alleged in
the motion to dismiss cannot be re-pleaded. The exceptions would be:
(1) lack of jurisdiction over the subject matter
(2) litis pendentia
(3) res judicata
(4) prescription of the action (the exceptions to the Omnibus Motion Rule)
Q: Ground for dismissal is failure to state cause of action going to the sufficiency of the
allegations of the Cause of Action (not the lack of cause of action). Is it correct to say, as
an absolute rule, that in considering a Motion to Dismiss on the ground of failure to state a
cause of action, the court is limited to the consideration of the allegations of the complaint
which are all deemed to be admitted?
A: Matters which are outside the complaint may be considered by the Court as in matters of
judicial notice, matters contained in the annexes attached to the complaint.
Marcopper vs. Garcia: Court can disregard allegations in the complaint which are legally
impossible facts, facts inadmissible in evidence, facts appearing by record/document included in
the pleading which are unfounded.
Q: H sued W for a sum of money. Wife files answer and shortly before pre-trial, motion to
dismiss was filed citing lack of earnest effort to resolve the matter. Rule on the motion.
A: Motion to dismiss granted. The lack of earnest effort to resolve the matter between husband
and wife is a condition precedent to the cause of action for the recovery of money such that the

failure of the husband to cite the earnest effort had been undertaken would amount to a failure to
state cause of action.
And since failure to state cause of action is an exception in rule 9 Sec. 2, the allegation after filing
of the answer is not too late.
Q: H sues W and her lover for recovery of money. Motion to dismiss by defendants on the
ground that earnest efforts to compromise were not exerted. Rule on the motion.
A: Motion denied. Where 3rd party is involved, you dont have to exert earnest effort to
compromise. (Magabaleta vs. Bono)
Problem:
First Action Annulment of a contract of mortgage
Second Action Foreclosure of a mortgage
Should the motion to dismiss be granted or denied?
Answer: It should be denied. Although there is identity of parties and there may be identity of
rights asserted yet the judgment which may be rendered in the first action does not necessarily
bar the second action.
Why?
Identity between the 2 actions must be such any judgment rendered on the other action
will amount to an adjudication of the action under consideration. It is not punctuated upon such
contingency. It is applicable between the same particularly when the judgement to be rendered in
the 1st action will be such that, regardless of the party is successful, it still results in res judicata
with the 2nd action.
Problem:
First Action Recovery of a parcel of land
Second Action to quiet title over the same parcel of land
Should the motion to dismiss be granted or denied?
Answer: The motion should be denied for the same reason given in Problem 1.
Problem:
First action A v. B to recover a parcel of land that B bought from the money of A
under cestui que trust. A lost in this case.
Second action A v. B recover the same parcel of land this time claiming he
inherited it.
B interposed res judicata. is there res judicata?
Answer:

No answer.

Problem: First action A v. B recover a parcel of land but before this action can be
instituted B already sold the land to C. A lost the case
Second Action B v. C recover the same parcel of land. C moved to dismiss
the action on the ground of res judicata.
Should the motion to dismiss be granted?
Answer:

No answer.

Food for thought:

What is the test for identity of causes of action even though the first action has a
different theory from the second action?

What makes for sameness of a cause of action?


Do we follow some kind of test like same evidence rule? test?
Is the sameness of the relief sought, the determining factor as to sameness of
the cause of action?
Is it necessary that all the constitutive facts be the same in order for the cause of
action to be the same for the purpose of res judicata?

INSUFFICIENT ALLEGATION
Failure to state a cause of action is the ground and not lack of cause of action. This
ground must be based on the allegation of the complaint which a motion based on this ground is
deemed to hypothetically admit and that therefore a motion to dismiss on the ground of failure to
state must be ruled upon on the basis exclusively of the allegation of the complaint.
That must be qualified now. There are many cases, World Wide Surety vs. Mc Crown (?)
among them, which ruled that annexes to the complaint are part of the complaint and if the
allegation in the complaint are contradicted or varied by the recitals in the annexed documents,
the documents prevail. So not only the allegations of the complaint but including its annexes.
DIRECTOR OF FORESTRY V. WENCESLAO VINZONS TAN
Facts: Forestry boundary dispute. Complaint to recover certain area of forest
concession. and the complaint embodied an application for preliminary injunction
on which there was a hearing. During the hearing, evidence was adduced
among them a map. After the injunction incident, the defendant filed a motion to
dismiss for failure to state a cause of action. The trial court denied it. The SC
reversed.
SC said that although the complaint alleged that the boundaries are here
but the map presented in evidence during the injunction showed a different
boundary, then the case shall be dismissed for failure to state a cause of action.
and now the rule more accurately states is
In ruling upon a motion to dismiss for failure to state a cause of action,
all evidence available, all admissions already on record as of the time of the
hearing of Motion to Dismiss may be validly considered together with the
allegations of the complaint.
Q: Is it required, when one invokes res judicata that he himself was bound in the prior
action?
A: NO
LITIS PENDENTIA
Q: What are the elements of a motion to dismiss based on litis pendentia?
A: (1) identity of parties or at least representing the same interest in both actions;
2 (2) identity of rights asserted and relief prayed for, relief being founded on same facts;
(3) judgment which may be rendered on the other motion will amount to res judicata in the
action under consideration.

Q: The first action was to annul an REM by mortgagor against mortgagee. While that was
pending, the mortgagee brings action against mortgagor for foreclosure to which the mortgagor
moves for dismissal on ground of litis pendentia. (See I Moran 485). Rule on the motion.
A: Motion for dismissal of mortgagor is not proper. Litis pendentia does not apply. Although there
is identity of parties, a resolution of one case will not constitute res judicata, whatever the
judgment in 1st action that REM is valid, if not yet dispose of action for foreclosure. (Tambunting
vs. de Leon)
Q: Petition in Bureau of Lands for issuance of free Patent over a parcel of land and another
action to recover said land during pendency of proceedings in the BOL. Does it constitute litis
pendentia?
A: Not litis pendentia because 1 st action is administrative while 2nd one is instituted in court.
(Regalado, p. 155)
Q: 1st action - A vs. B for recovery of land and while pending 2 nd action B vs. A to quiet title over
same land. A motion to dismiss was filed by A on ground of litis pendentia. Resolve.
A: Francisco vs. Vda. De Blas: Motion to dismiss sustained; theres identity of parties, of cause of
action and or relief and any judgment that may be rendered in the first case, regardless of which
party is successful, will necessarily amount to an adjudication of the 2 nd.
Q: Case in RTC by lessee against lessor to fix period after expiration of original lease and while
this was pending, lessor filed suit for ejectment on ground for expiry of lease. Litis pendentia?
A: Yes. (Teodoro vs. Mirasol and see I Moran 487). The ground for dismissal if there is a pending
action and not a pending prior action. The fact that the unlawful detainer suit was of later date is
no bar for dismissal of the present action for declaratory relief and also the question of whether
lessee has a right to occupy the land lased against the lessor is more proper in a suit for unlawful
detainer under Rule 70 (Lim Si vs. Lim); since theres already an action for illegal detainer, the
suit for declaratory relief should be dismissed.
What is the difference between Bar by prior judgment and Estoppel by judgment?
A:
The former is governed by Sec 49(b) of Rule 39 while the latter is governed by Sec 49 (c)
of Rule 39.
The distinction between bar by prior judgment and estoppel is as follows: In the former,
any issue that was raised or which could have been raised but was not raised is barred from
being raised in another action in the future. In the latter, only the issued actually raised and
necessarily adjudged by the Art are barred. Other issues not raised are not barred because the
causes of action of the cases are different.
Bar by prior judgment is a ground for a motion to dismiss but not estoppel by judgment
because in the latter, the cause of action is different.
Examples of Estoppel by Judgment
1.

First Action A v B for recovery of land


Second Action A v B for damages to a piece of land
In the first action, one of the issues which was necessarily ruled upon was
whether a certain deed of donation was valid and it was held to be valid. If that
same issue again as to validity of the Deed of donation was raised in the second
action between A and B. Although the cause of action be different, that issue is
already settled once and for all.
Res Judicata Proper or Bar by prior judgment, the entire case is barred.

2.
Unlawful Detainer which by the very provisions of the rules, a judgment in an
action of unlawful detainer is conclusive only on the issue of possession so even if the judgment

may contain some statements about ownership or other matters, it is not conclusive even
between same parties on any other matter except on ownership.
What is the difference between bar by prior judgment and estoppel by (conclusiveness of)
judgment?
BAR BY PRIOR JUDGMENT (RES JUDICATA PROPER)
1. Sec 47 (b), Rule 39
2. Elements
jurisdiction of the court
final judgment
judgment on the merits
identity of parties and cause of action

3. Scope of Preclusion What is precluded is the entire action


all matters directly adjudged in the 1st case
any matter that could have been raised in relation thereto
Q: Whats the difference between Res Judicata and Law of the Case (Stare Decisis)?
A: Res Judicata bars the filing of the case. It involves 2 different actions. The law of the case
involves only 1 litigation.
LAW OF THE CASE
-refers to what has been decided in the same case
between same parties, whether right or wrong, which
cant be overruled anymore except by the Superior
Court and until then, such decision is or must be
upheld; 1 case involved only
Note:

V.

RES JUDICATA
- refers to different cases

Both law of the case and res judicata have the effect of preclusion

Q:
P v. A to recover a parcel of land but it turns out before the first action was
commenced, A sold the land to X already; 2 nd action now by P v. X. Decide. Is there res
judicata?
A:
1st case should have been dismissed for not being against the real party in interest. but,
yes, there is res judicata. (R 39 S 49b). X is a party in interest by title subsequent to the
commencement of the action, litigating for the same thing, under the same thing, under the same
title and in the same capacity.
Q: Meralco vs. CA. X sues Meralco for abatement of nuisance. Judgment was against Meralco
ordering it to reduce noise to a certain decibel. Later, X found that a stipulation in the contract of
sale of land by PHMC to Meralco stated that land can be used only for residential purposes. X
then brings 2nd suit against Meralco for breach of contract. Motion to dismiss by Meralco. What
can be the ground for dismissal of 2nd suit by Meralco. 2nd action is for recission of contract.
A: Res judicata. Meralcos contention that there is splitting of cause of action is not correct. No
splitting because cause of action for abatement of nuisance is different from a cause of action for
cancellation of contract. However, it does mean that a judicial proceding cant be barred by a
previous case involving another cause of action. The principle applicable would be estoppel by
judgment/collateral estoppel by judgment. The issue of whether the land is for residential purpose
only is necessarily adjudged already in the proceeding for abatement of nuisance.
Note: Kinds/Forms of Res Judicata
1. R39 S49 RJ proper

2. R9 S4 Counter/Cross claim not set up is barred


3. R2 S4 Splitting a single cause of action
4. R57 S20 Claim for damages on account of illegal attachment (if you dont file action
against the bond for wrongful attachment before judgment in the same case, ten any
form of bond is already barred)
5. R17 S3 Dismissal for failure to prosecute in a judgment on the merits unless
otherwise stated in the order.
Distinction between R39 S49
b-Bar by prior judgment

c-Conclusiveness of judgment

1. scope of preclusio is wider;


entire record is precluded

1. scope of preclusion is limited


to specific issues only; such issue
is barred from being relitigated
2. same
3. no identity of COA

2. identity of parties
3. identity of cause of action

Q: How does R39 S49 apply? What is it that can no longer be relitigated?
A: In conclusiveness of judgment, the judgment in the 1 st is binding only with respect to the
matters actually raised and adjudged therein (Viray vs. Maonas); matters so adjudged or which
were actually and necessarily included therein or necessary thereto.
Q: 1st action P v A & B to annul sale of land and recovery thereof on ground that sale of A to B
is in fraud of P. Judgment for A & B and sale found valid.
2nd action A v. B to annul sale because sale was only colorable on understanding that the sale is
in connivance against P and because B did not honor said agreement. B filed Motion to Dismiss.
Decide.
A: Carandang vs. Venturanza is case in point. Motion denied because res judicata does not apply
where the present protagonists were defendants in the 1 st case, except, where as co-defendants,
they submitted conflicting claims between themselves. There is no identity of parties in the sense
that they are placed in the same capacity and urging same right, so how can there be res
judicata? In the 1st case A & B werent in an adversarial position as they are in 2nd
Q: 1st case P vs. contractor for damages suffered due to negligence of contractor; judgment for
contractor. Later, P vs. the building owner for same cause of action. Is there res judicata?
A: No answer.
ESTOPPEL BY JUDGMENT (CONCLUSIVENESS OF JUDGMENT)
1. Sec 47 (c)
2. Elements
a.
b.
c.
d.

jurisdiction of the court


final judgment
judgment on the merit
identity of parties

2. Scope of preclusion Here only specific issues are prevented from being re-litigated
matters adjudged in a final judgment or final order which appears upon its face to
have been adjudged
matters actually and necessarily included therein or necessary thereto
Problem: 1st action A vs. B to foreclose real estate mortgage.

2nd action B vs. A to quiet title.


A files a motion to dismiss.
Answer: Bar by prior judgment
Problem: 1st action A vs. B to recover land
2nd action B vs. A to quiet title
A files a motion to dismiss.
Answer: Conclusiveness of judgment. The issue of the validity of the mortgage cannot be relitigated.
Problem: 1st action A vs. B to fix period in a contract of lease
2nd action B vs. A ejectment
Both A and B file motions to dismiss.
Answer: Litis pendentia. The 1st case should dismissed even if it were filed first.
Problem 1st action A vs. B to recover land
2nd action B applies with Bureau of lands
A files a motion to dismiss.
Answer: No litis pendentia. Different jurisdictions.
Problem: A sold to B. B sold to C. A sued B to recover what he sold to B. A lost. A sues C.
Can A sue C?
Answer: Yes because A should not have sued B in the first place since B was not the proper
party. There was no cause of action. There is no judgment on the merits.
MOTION FOR BILL OF PARTICULARS
Q: D filed Motion for Bill of Particulars. This was denied. Within the time for filing pleading, D files
motion to dismiss for improper; P opposes Motion to Dismiss on the ground that objection to
improper venue was not raised in the 1 st instance and so deemed waived. Rule on the Motion to
Dismiss.
A: Ds motion to dismiss must be denied (Sy vs. Tyson Ent.) Nowhere in the rules does it state
that the objection to improper venue must be raised at the 1 st instance/1st objection.
Q: A stays in AIT Hotel for a few days. He is not from QC. He is from Surigao. He makes QC the
venue of his suit against B who is in Surigao. Is this proper? Can A be served summons in AIT
Hotel?
A: A cant make QC the venue of his suit because it is not his residence as contemplated in Rule
4. However, A can be served summons at AIT Hotel accdg. To R14 if personal service is effected
and not substituted service for AIT Hotel wouldnt be the residence of A.
MOTION TO STRIIKE OUT
Q: What are the grounds for a motion to strike out a pleading or any part thereof?
A: (1) The pleading contains sham, false, redundant, immaterial, impertinent or scandalous
matter. (Rule 8, Sec. 12)
(2) The pleading alleges scandalous or indecent matter therein (Rule 7, Sec. 3)
(3) Non-compliance with court's order for bill of particulars (Rule 12, Sec. 4)
(4) Refusal to comply with court order to submit to modes of discovery (Rule 29, Sec. 3)
NOTE:
Q:

A complaint CAN be stricken out!!!


What is meant by sham. Give examples.

A;
The allegation which is good in form but false in fact; example: in my answer filed, I
allege that I am 16 feet tall.
Differentiate between motion for summary judgment and motion for judgment on the
pleadings.
JUDGMENT ON THE PLEADINGS
Q: What is the reason for the rule allowing judgment of the pleadings?
A: To expedite litigation.
Q: How will it expedite litigation? Why dont we allow it in all cases?
A: Judgment on the pleadings is allowed when there is no issue of fact.
If there is only an issue of law, judgment on the pleadings is still proper. Because you do not try
issues of law, you do not receive evidence on issues of law. At most you argue your positions on
issues of law. That is if it is a pure question of law and it does not have underlying factual issues.
Those are infrequent cases where the issues are purely law. So when there is no issue of fact,
then judgment on the pleading is proper. Recall when I told you about the problem when there is
an issue as to damages. Allegations as to the amount of damages need not be specifically
denied.
1.
2.
3.
4.

As to grounds When an answer fails to tender an issue or admits material allegations


Who may ask plaintiff
At what stage may be invoked after filing of the answer and before trial
Partial Judgment is allowed Secs. 4 & 5, Rule 36

Sec. 4, Rule 36 provides that in an action against several defendants, the court may, when a
several judgment is proper, render judgment against one or more of them, leaving the action
to proceed against the others.
Sec. 5, Rule 36 provides that when more than one claim for relief is presented in an action,
the court, at any stage, upon a determination of the issues material to a particular claim and
all counterclaims arising out of the transaction or occurrence which is the subject matter of
the claim, may render a separate judgment disposing of such claim. The judgment shall
terminate the action with respect to the claim so disposed of and the action shall proceed as
to the remaining claims. In case a separate judgment is rendered, the court by order may
stay its enforcement until the rendition of a subsequent judgment or judgments and may
prescribe such conditions as may be necessary to secure the benefit thereof to the party in
whose favor the judgment is rendered.
Under Sec 1 (g), Rule 41 the Rules provide that no appeal may be taken from a judgment or
final order for or against one or more several parties or in separate claims, counterclaims,
cross-claims and third party complaints, while the main case is pending unless the court
allows an appeal therefrom.
QUERY: Can you appeal from partial judgments found in Secs. 4 and 5 of Rule 36? Are the
partial judgments in these sections final? Can a motion for reconsideration be filed?
Final and appealable judgment can appeal; all issues disposed of
Interlocutory order not appealable but can attack the order via Rule 65, certiorari
If the court denies a motion to dismiss, the party can attack the denial via Rule 65,
certiorari. However, most lawyers merely cite the denial of the motion to dismiss as
an assignment of error. If you do this though, you would have to go through the
whole trial. It is not a speedy remedy.
Final and executory after appeal has lapsed; ripe for execution

Q:
May defendant move for judgment on Pleadings?
A:
Yes, under Rule 18, during pre-trial, this is allowed. There is another rule, though (the
former Rule 19, Sec. 1 under the pre-1997 Rules) which seems to indicate that only plaintiff may
do so.
MOTION FOR SUMMARY JUDGMENT
Q:
When is Summary Judgment availed of?
A:
When there is no genuine issue as to any material fact involved. (Aegenas v. Nagum,
Regalado p. 230)
Q:
A:

What is a genuine issue?


There is a genuine issue if a regular trial is needed to resolve it (ex. rape, negligence)
(1)
(2)
(3)
(4)

As to grounds When there is no genuine issue as to any material fact in the action
Who may ask plaintiff or defendant
At what stage may be invoked at any time before judgment
Partial Judgment is allowed Sec. 4, Rule 35
Rationale: spare the court and the other party of going through with the trial. There is no
need to spend time on factually baseless claims and defenses.
The failure to state a cause of action is different from a lack of cause of action. T he lack
of a cause of action means that there is an intrinsic lack of the cause of action. It
requires an evidentiary hearing. On the other hand, the failure to state a cause of action
can be seen by merely looking at the complaint.
Prayer: asking for relief which the movant is entitled to as a matter of law

Q: What is the rationale for the rule allowing summary judgment? Give an example of a
case which is proper for summary judgment.
A: A motion filed by plaintiff against defendant whereby plaintiff alleges damages. Defendant
answers that the amount of damages sought to be recovered by plaintiff should only be limited to
this particular amount, there should be summary judgment because there is no actual issue.
Q: When is an issue as to a material fact genuine?
A: An issue is genuine if it is properly triable, when it merits trial, meaning it requires for its
resolution a full dress hearing or a trial where you call witnesses, direct and cross exam. Where,
for instance, the plaintiff sues for collection on a PN and the defendant does not deny the
execution of the note but defends by saying that he has paid. Why not just present affidavits and
the receipt? What is there to try? Kailangan pa ba ng testigo dyan at mag cross-examine?
The classic example here in the Philippines, although disputable, is Estrada vs.
Consolacion. It involved a three vehicle accident. The plaintiffs were passengers in vehicle C
which was parked properly. It was hit by one vehicle B because it was hit by vehicle A. The
plaintiff filed a motion for summary judgment and they presented the traffic investigators report
with the sketch. This was not disputed in the counter-affidavits by the defendant. No, I believe its
the owner, operator of vehicle C, which moved for summary judgment to get his partial summary
judgment to get off the case ahead of A and B. As far as he is concerned, it can clearly be
established without need for a full dress trial that it was blameless. The vehicle C was parked
properly, not moving, binangga. If there is any triable issue of fact, it is between A and B. There
was a dissent by Justice Ramon Aquino who said that the affidavits are hearsay. There is a point
to that. Rule 35, Sec. 5 requires that the affidavit should be based on personal knowledge.

The classic case in the USA involved Cole Porter, a copyright infringement case. The
plaintiff claimed that the songs (Bagin and Bagin) composed by Cole Porter were copied from
him. The defendant denied it. He said that he didnt even know the plaintiffs composition existed.
Then the defendant Cole porter moved for summary judgment. Among the affidavits he presented
were affidavits of musical experts to show that the notes of his songs were radically different from
those of plaintiff. The trial court granted the summary judgment. It said that obviously there can be
no copying. There is no need to go to trial. The Supreme Court in the case of Eistein vs. Porter
reversed and pronounced itself strongly against indiscriminate summary judgment by saying that
this would result to trial by affidavits. And Justice Aquino saw that point in Estrada vs.
Consolascion, when he said that the affidavits were hearsay. Kailangan ang cross examination.
How can you know assure that sketch is but significantly the fact is that sketch was not disol by
any counter affidavits.
Now the theory of summary judgment is that court time like classroom time is very
precious, very limited. It should not be noted unnecessarily on issues which dont really need to
be tried.
The USSC said in the Cole Porter case, that if the complaint says that if the composition
material girl was copied from Rabels Bolero then summary judgment could easily issue because
it is obvious that they are not the same. They are very dissimilar. Anyway, the Court in that case
said that there are other factual issues which need trial, for instance, accuse (?) to copying. But in
the same Cole Porter, he said that dissimilarity is not like that as to warrant summary judgment. It
requires trial.
Estrada vs. Consolascion also stressed that after a motion for summary judgment which
is to be accompanied by affidavits and deposition. The other party has 10 days to submit counteraffidavits. There should be an order first granting the motion, o the summary judgment itself.
Q:
A:

Is partial Summary Judgment possible?


Yes. R34 S4.

Q:
Is such decision (partial summary judgment) immediately appealable?
A:
Yes. (Guevara vs Guevara) were just. Conrado Vasquez ruled that way. However,
Bautista says this is wrong because what is referred to is actually R35 S5 which is Judgment at
Various Stages.
Q:
Can defendant move for Summary Judgment even before filing answer?
A:
Yes. R34 S2 provides that the defendant can at any time, move for summary judgment
even before or without filing his answer but with respect to summary judgment moved by the
plaintiff, he cant do so if the answer has not been filed yet.
Q:

Compare and contrast the following:

Judgment on Pleadings

Summary Judgment

Regular Trial

-no issue of fact involved

-issue of fact involved


- trial by affidavits
(w/o full-blown trial)

- issued of fact and


law are tried

IX.

DISMISSALS AND DEFAULTS

(1) DISMISSALS
Important Points for Dismissals
1. When is there need for prior leave of court?

Dismissal is effected not by motion but by mere notice of dismissal


which is a matter of right before the defendant has answered or moved
for summary judgment. Otherwise, there is need for prior leave of
court.
Since it is dismissal by mere notice and not by motion, there is no need
to furnish a copy to the other party.
Problem: The plaintiff files today then withdraws tomorrow. What
does the plaintiff do if he wants to re-file?
Answer: The plaintiff can re-file, but he has to pay the docket fees
again.

2. What is the effect of dismissal on a pending counterclaim?


3. Preclusive effect

Dismissals under Secs. 1 and 2, Rule 17 are without prejudice


except:
a) where the notice of dismissal so provides
b) where the plaintiff has previously dismissed the same case in a
court of competent jurisdiction 2 dismissal rule
If the plaintiff withdraws the case for the 2 nd time, then it
is equivalent to an adjudication of the case. According
however to Prof. Bautista, for practical purposes, how
would the defendant know if the plaintiff has filed the
case for the 2nd time?
He probably wont know.
Therefore, for practical purposes, this is illusory. The
implication is that the plaintiff can re-file even after a 2 nd
time.
Another reason why the plaintiff might want to keep on
re-filing is to try to get another judge.
c) when stated to be with prejudice in the order of court

Dismissals under Sec. 3, Rule 17 amount to an adjudication of the


merits unless otherwise declared by the court.

Problem: Plaintiff files a complaint. After 6 months, there has been no


service of summons. The case is dismissed for failure to prosecute. 2
months later, the plaintiff re-files the same case. The defendant files for a
motion to dismiss under Sec.3, Rule 17. Rule on the Motion to Dismiss.
Answer: Not granted. The first court did not acquire jurisdiction over the
defendant. No summons had been issued yet. There is no res judicata
either.
If the complaint has been dismissed, the plaintiff in the counterclaim has
15 days to decide whether to pursue the action in the same case or in a
separate action. If the complaint is dismissed before an answer is filed,
there is no counterclaim to speak of. The presence of a compulsory
counterclaim presupposes that the defendant was able to file an answer.
Problem: A purchased a car through a finance company. The finance
company files a case against A to pay for the car. The car of A is
repossessed through replevin. The finance company then moves to
dismiss its complaint. What happens to the replevin?

Answer: According to Prof. Bautista, the plaintiff, finance company


cannot dismiss the case as a matter of right since it has been afforded an
affirmative relief. In fact, even if there was no need for prior leave of court,
the court must still issue an order confirming the dismissal. The purpose of
the confirmation is to see to it that rights are not prejudiced (i.e. right to
claim against the bond). The effect of dismissing the case would be as if
there would be a taking without any hearing.
Q. The rule is that plaintiff can move to dismiss (generally, w/ out prejudice) his action
before answer is filed by defendant without leave of court. What are the exceptions?
A: a. 2 dismissal rule R17 S1 prior dismissal in competent court of an action based on or
including the same action/ claim
b. class suit R3 S12
Q: Plaintiffs lawyer didnt appear at the trial, can the Court motu proprio dismiss the
action?
A: No. R17 S3 says it must be the plaintiff himself whos absent.
Q : If at pre-trial, plaintiff himself doesnt appear, can the court motu proprio dismiss the
case?
A : a. Yes (R17 S5 ), for failure to obey court order. See also R20 S2, the failure to appear at
pre-trial may result in the partys being non-suited/considered in default but court cant
declare party in default motu proprio ( R18 S1 ). But if the court is to give default order
instead of having action dismissed, court cant declare such without motion.
b. failure to prosecute is equal to non-suit.
Failure to prosecute motu proprio/defs motion judgment on merits
1. failure to appear
2. failure to prosecute for an unreasonable length of time
3. failure to comply with these rules or court order
Q: Other than Rule 17, are there no other grounds by which a Court can dismiss an
action? Is the enumeration of the grounds for dismissal in Rule 16 exclusive? Do you need
a Motion always or can the court dismiss action motu propio?
A: Court can dismiss an action motu propio for any of the 4 grounds enumerated in Rule 9, Sec.
1.
(2) DEFAULTS
Default occurs when the defendant fails to answer within the time allowed. The court
may also order a judgment by default against the disobedient party if such party refuses to
comply with the modes of discovery (Sec. 3 (c), Rule 29).
If the defendant fails to appear at pre-trial, this is cause for allowing the plaintiff to present
his evidence ex parte and the court can render a judgment on the basis thereof. If the plaintiff
does not appear at pre-trial, then it shall cause the dismissal of the complaint.
Q : What is the order/sequence of a partys being in default?
A : Ist Motion to declare party in default.
2nd Order of default -party not entitled to participate,
3rd Judgment by default
Grounds for Declaration of Default Failure to answer within the required time
How Declaration of Default is made Only upon motion of the party not in default

Q: Can a court motu propio declare a judgment in default?


A: No. See Rule 9 Sec. 3.
Effect of Declaration The court shall proceed to render judgment granting the claimant such
relief as his pleading may warrant, unless the court in its discretion requires the claimant
to submit evidence. In this case, the party in default cannot take part in the trial but is still
entitled to notice of subsequent proceedings. The defendant may take part in the trial or
the defendant regains his standing upon the granting (not just the mere filing, I think) of a
motion to set aside an order of default.

It lies within the discretion of the court whether or not the plaintiff shall
present evidence. According to Prof. Bautista, if the court decides that there
is no need for the plaintiff to present evidence, the basis of the courts
judgment would perhaps be an admission by silence.

Remedies of a Party Declared in Default


1.

Opposition -- when the other party files a motion to declare the opposing party in default

2.

Motion to set aside order of default -- when there is an order of default


This may resorted to anytime.
The movant must cite his grounds
accompanied by an affidavit of merits.
If the order of default is illegal then there is no need for an affidavit of merits.
If the motion to set aside the order of default is granted, the defendant has a
clean slate. He is not merely given a chance to cross-examine. Its as if
there was no default.
According to Prof. Bautista, he does not like filing a motion to declare the
party in default since the other party will merely file a motion to set aside the
order of default. Courts usually give defendants a chance.

3.

Motion for new trial or motion for reconsideration


The party in default cannot file a motion for reconsideration to set aside the
order of default. The party in default however, can file a motion for
reconsideration when there has been judgment by default.

4.

Appeal

After judgment has been rendered, appeal is available even if the party in
default did not file a motion for new trial, did not file a motion to set aside in
default.

5.

Petition for relief from judgment

6.

Certiorari, Rule 65
Since the order declaring the party in default is interlocutory, such order
cannot be appealed. The remedy is certiorari, Rule 65.

Q : Can the defaulting defendant appeal without filing a motion to set aside Judgment of
Default?
A : Yes, R41 S2, par-3.
Q : A Motion to Set Aside Order of Default is denied because no affidavit of merit is
attached. Decide.

A : If the declaration of default is illegal/improper, then the motion need not be accompanied by
an affidavit of merit.
If improvident declaration (given based on mistaken assumption / misleading information /
advice), then affidavit of merit must be attached.
Q : Can a party in default question the legality of the Order of Default even if he has not
filed a Motion to Set Aside Order of Default?
A : Yes. In the case of Matute v. CA, it was stated that judgment by default /order of Default may
be declared void in an appeal even if no Motion to Set Aside it is filed.
Q : Is certiorari available against an order of default?
A : No since the remedy of Motion to Set Aside Order of Default is still available.
Limitations on Judgment by Default
1. cannot occur for the following cases:
a) annulment of marriage
b) declaration of nullity of marriage
c) legal separation
2. A judgment rendered against a party in default cannot:
a) exceed the amount
b) or be different in kind from that prayed for
c) or award unliquidated damages

According to Prof. Bautista, this is logical since the law assumes that the
defendant is willing allowing himself to be declared in default. For example,
the defendant can perhaps afford the sum prayed for. Perhaps he sees no
need to spend for a lawyer.
The prayer serves as the upper limit of the amount and kind for judgments by
default.

Q : P v. A,B,C,D,E,F jointly and severally ; ABC declared in default; P amended complaint


to drop DEF & court granted it. Ex-parte presentation of evidence against ABC. Decide.
A : Wrong move by court. Reasons:
a. Rule 9, Sec 3(c) provides that the court must try case against all upon the answers filed
& render judgment upon the evidence presented.
b. Also, dropping DEF is a substantial amendment in the pleading that will expand the
liability of defaulting defendants (Lim Tan Ho v. Arboleda). Please check if this is still
applicable under the new rules.

X.

PROVISIONAL REMEDIES

Provisional remedies are also known as auxiliary remedies (in aid of). These provisional
remedies are not final. These are prejudgment remedies, thats why the US Supreme Court
struck down most of them since these essentially violate due process. The bonds do not fully
relieve the infirmity For example, even if a bond is filed, it doesnt fully compensate the person
since there is a prohibition to transfer the property until the litigation is terminated. the Generally,
provisional remedies come in before final judgment.

(1) NOTICE OF LIS PENDENS


Lis pendens is not really a provisional remedy. It is essence though is theoretically a
provisional remedy since it gives provisional relief to the movant. The notice of lis pendens
affects the alienability of the property. It serves as a warning to all would-be buyers. For practical
purposes therefore, no one would buy the property. Therefore, it operates like an attachment.
Q ; A notice on lis pendens would operate like what kind of provisional remedy?
A : Attachment, except that a notice of lis pendans only involves real property.
Q ; For how long is a notice of lis pendens good?
A : For as long as it is not cancelled by the court.
Q : What is the purpose of lis pendens?
A : A notice of lis pendans is a notice of pending action between the parties involving title or the
right possession over real property. It serves a warning to all persons, prospective purchases or
incumbrances of the property in litigation to keep their hands off the property in litigation, unless
they are prepared samble on the result of the proceedings.
Q. What are the grounds for cancelling?
A.
1. Purpose of molesting the other party
2. not necessary to protect the rights of the party
(2) PRELIMINARY ATTACHMENT
( May be granted Ex parte )
Quote from Sir: Ballroom dancing is harder than learning the Rules of Court kasi it doesnt make
sense. This is childs play if you understand.
Q: What is the purpose of attachment?
A: As a security for the satisfaction of any judgment that may be recovered in the uses
enumerated in Rule 57. The function of attachment is 2-fold:
1. it seizes the property of an alleged debtor in advance of final judgment and holds it
subject to appropriation in satisfaction of the judgment if finally obtained.
2. Prevents the loss of property by fraud or otherwise
It subjects the debtors property to payment of CRs claim in those instances where personal
service cannot be obtained upon the debtor.
Under the 1997 Rules of Court, attachment may now issue for quasi-delicts. Before it
was only limited to contracts, either express or implied. The rationale was that it was easier to
evaluate the merits of whether or not to issue the attachment. The probable claims are based on
the contract itself. Claims arising from quasi-delict cannot be resolved summarily. They are
litigious and involve issues of fact. A second significant change is that attachment can issue for
cases of both dolo incidente and dolo causante. Previously, it was allowed only for dolo
causante.
Although it may seem that preliminary attachment is very harsh, this is tempered by the
fact that it will not be allowed unless the grounds enumerated by law are present. These grounds
are limited. For example, insolvency is not a ground for attachment. Also, the property which is
the subject of litigation cannot be attached.

According to Prof. Bautista, unliquidated claims cannot be recovered under Sec. 1 (a),
Rule 57 since the amount of damages must be specified.
In Sec 1 (b), Rule 57, there is a need for preliminary attachment since it is highly likely
that there will be prejudice to the applicant. In Sec. 1 (d), Rule 57, the fraud there refers to both
fraud causante and incidente. Sec. 1 (f), Rule 57 refers to natural persons only and not to
juridical persons.
The issuance of the attachment order and the writs are done by the courts only. The
movant can file for preliminary attachment any time before entry of final judgment. Thus, the
order of attachment can be issued even before summons since it can be filed at the
commencement of the action (Sec. 1, Rule 57). However, the writ cannot issue unless preceded
or contemporaneously accompanied by service of summons (Sec. 5, Rule 57).
There are 2 kinds of attachment:
1. attachment proper
involves actual physical custody
refers to tangible property
2. garnishment a species of execution
involves a notice of sequestration
refers to incorporeal property
The Bank Secrecy Law does not apply in cases of garnishment. The
rationale according to the Supreme Court in one case is that garnishment
does not involve asking how much money there is in the bank (although
if the bank deposit is not enough, you will find out). It merely involves
knowing whether the debtor has a bank deposit in that bank or not.
The garnishee is a forced intervenor since he is forced to respond
because he holds the property.
Q : What is the difference between attachment and garnishment?
A : Attachment usually refers to property being levied upon or being taken into actual custody of
the sheriffs whereas garnishment is a notice of sequestration.
CLASSIFICATION OF ATTACHMENTS:
I.

According to availability and effects:


A. Preliminary:

resorted to at the commencement of the action


or at any time before entry of judgment;
Merely temporary;

B. Final:

available after the judgment in the main action


has become executory;
For the satisfaction of a judgment; also known
as levy upon execution.

II.

According to form and procedure of enforcement:


A. Regular:

Attachment of corporeal
possession of the party;

property

in

the

B. Garnishment:

Attachment of money, stocks, credits, and other


incorporeal property which belongs to the party
but is in the possession or under the control of a
third person.

PURPOSES OF PRELIMINARY ATTACHMENT:


(1) To seize the property of the debtor in advance of final judgment and to hold it for
purposes of satisfying the said judgment; or
(2) To enable the court to acquire jurisdiction over the action by the actual or
constructive seizure of the property in those instances where personal service of
summons on the creditor cannot be effected.
PROCEDURE IN PRELIMINARY ATTACHMENT
(1) Party files a motion for preliminary attachment in the court in which the action is
pending, or in the CA or SC. (Of course it goes without saying that the adverse party
must have notice of the motion.)
Who:

Any party, including:

a defendant on his counterclaim;


a co-party on his cross-claim;
3rd party plaintiff on his 3rd party claim

When: at the commencement of the action, or at any time before entry of


judgment
(2) Applicant (or some other person who personally knows the facts) must submit an
affidavit stating, among others that:
(a) His / her cause of action (which must be found to be existing and
sufficient);
(b) The ground for the application is covered by the instances provided
for in Rule 57, Sec. 1;
(c) There is no other sufficient security for the claim sought to be
enforced by the action;
(d) The amount due to the applicant, or the value of the property the
possession of which he is entitled to recover, is as much as the sum
for which the order is granted above all legal counterclaims.
(3) Applicant must then give a bond executed to the adverse party in the amount fixed by
the court in its order.
Conditions of the bond:

The applicant will pay all the costs which may be


adjudged to the adverse party and all damages
which he may sustain by reason of the
attachment, if the court shall finally adjudged
that he (applicant) was not entitled to the writ.

(4) The court will proceed to hear the motion.


(5) The court will then decide on whether or not to grant the writ, and issue its order
accordingly.

(6) If the court grants the writ, then the sheriff shall enforce the same without delay and
with all reasonable diligence.
Notes: The property attached should:
(1) be located in the Philippines;
(2) belong to the party against whom the writ is issued;
(3) not be exempt from execution;
(4) be sufficient to satisfy the applicants demand
(not excessive);
Enforcement of the writ must be preceded or contemporaneously accompanied
by the following:
(1)
(2)
(3)
(4)
(5)

Service of summons;
A copy of the complaint;
A copy of the application for attachment;
A copy of the applicants affidavit and bond; and
The order and writ of attachment.

The exceptions to contemporaneous service of summons are:


(1) where personal or substituted service of summons could not be
effected despite diligent efforts;
(2) the defendant is a resident of the Philippines temporarily absent
therefrom;
(3) The defendant is a non-resident of the Philippines;
(4) The action is one in rem or quasi in rem
(7) After enforcing the writ, the sheriff must, without delay, make a return of the writ to
the court which issued it. The return must be accompanied by the following:
(a) Full statement of proceedings under the writ;
(b) Complete inventory of the property attached;
(c) Counter-bond, if any, given by the party against whom attachment
was issued.
The sheriff shall also serve copies of the foregoing on the applicant.

AT THIS POINT, the party whose property was attached, or his


agent, may move for the discharge of the attachment wholly or in
part on the security given.

(7) The sheriff may then cause the judgment to be satisfied out of the property
attached as follows:
(Please fill in.)
MODES OF ATTACHING PROPERTY:
Real property, or standing crops thereon or any interest therein
By filing a copy of the order with the Register of Deeds, together with a description of the
property attached, and a notice that it is attached; and

Leaving a copy of such order, description, and notice with the occupant of the property, if
any, or with such other person or his agent if found within the province.
Personal property capable of manual delivery
By taking and safely keeping it in his custody, and issuing the corresponding receipt
therefor.
Stocks or shares of any corporation or company, or an interest therein
By leaving with the Pres. or managing agent thereof, a copy of the writ, and a notice
stating that the stock or interest is attached in pursuance of the writ
Debts and credits and other personal property not capable of manual delivery
By leaving with the debtor, or person having possession or control of the credits or other
personal property, or his agent a copy of the writ, and the proper notice
Interest in property belonging to the estate of a decedent
By serving the executor or administrator or other personal representative of the decedent
with a copy of the writ and notice;
Filing a copy of the writ and notice with the clerk of the court in which the estate is being
settled; and
Serving copies of the writ and notice upon the heir, legatee, or devisee concerned.
Property in custodia legis
By filing a copy of the writ with the proper court or quasi-judicial agency; and
Serving a notice of the attachment upon the custodian of the property.
ALL PROPERTIES EXEMPT FROM EXECUTION ARE THE PROPERTIES EXEMPT FROM
ATTACHMENT. Even property in custodia legis is allowed to be attached.
Problem: Can the attaching creditor attach an overdraft? An overdraft is an accommodation by
a bank a loan.
Answer: No, cannot attach an overdraft. That would be tantamount to compelling the person to
borrow money
If the sheriff for example attaches a car, the sheriff takes the car and stores it in a
warehouse. The plaintiff would have to pay for warehouse fees, etc. The sheriff cannot deliver
the car to the plaintiff as that would be a replevin.
Problem: Defendant has a Benz, an Accord, and a Camry. Can the plaintiff tell the sheriff which
to take?
Answer: Unlike execution, there is no order.
Differentiate between attachment and execution. There are significant differences.
MOTION TO SET ASIDE / DISCHARGE ATTACHMENT:
Who files:

party whose property has been ordered attached

When:

While the action is pending, before or after levy, or even


after the release of the attached property

Grounds:

(1) The debtor has posted a counter-bond or has made the requisite
cash deposit;
(2) The writ of attachment was improperly or irregularly issued;
E.g., no ground for attachment; affidavit filed is defective or
Insufficient
(3) The writ of attachment was improperly or irregularly enforced; or
(4) The bond is insufficient;
(5) The attachment is excessive (Note: the discharge shall be limited to
the excess);
(6) The property attached is exempt from execution and preliminary
attachment;
(7) The judgment is rendered against the attaching creditor;

3 Kinds of Bonds
(1) Applicants Bond (Attachment Bond)

The amount is based on the amount due or the value of the property.

Conditioned that the applicant will pay all the costs which may be adjudged to the
adverse party and all damages which he may sustain by reason of the attachment , if
the court finally adjudge that the applicant was not entitled thereto.

For the adverse party to collect actual damages, good faith is irrelevant. For the
adverse party to collect moral damages, the party must allege bad faith.

Recovery against the attachment bond must be filed (sec. 20, Rule 57)

a)
before trial
b) before appeal is perfected
c) before judgment becomes executory

The time is limited because the issue is whether or not the adverse party or creditor
is entitled to the attachment.

(2) Counterbond

The amount is based on the value of the property.

The value of the property is determined by affidavits. It is not conclusive. So, in case
of disagreement as to the value, it will be decided by the court.

The counterbond is liable if judgment is rendered in favor of the attaching creditor


and the judgment cannot be satisfied.

The general rule is that the plaintiff-creditor must file a claim against the counterbond
in the same action. There is an exception if the main action is dismissed for lack of
jurisdiction or improper venue.
Problem: Plaintiff attaches and levies property. The counterbond is filed. Trial
ensues. At the end, judgment is rendered in favor of the plaintiff. Plaintiff-creditor

recovers against the counterbond even if the judgment is final and executory.
Defendant-debtor argues that the plaintiff-creditor cannot recover against the
counterbond since the judgment is now final and executory, relying on Sec. 20, Rule
57. Rule.
Answer: The plaintiff-creditor can recover against the counterbond even if it is final
and executory. Sec. 20, Rule 57 refers to recovery against the attachment bond and
not against the counterbond.
Problem: After trial the judgment is rendered in favor of the plaintiff. The defendant
files a notice of appeal. Can the plaintiff recover on the counterbond pending appeal.
Answer: Yes, since the rules dont distinguish if appealing is pending or not for as
long as the judgment is unsatisfied.
(3) Sheriffs Bond (Indemnity Bond)

The sheriffs bond is filed by the plaintiff.

The amount is based on the value of the property.

The value of the property is determined by affidavits. It is not conclusive. So, in case
of disagreement as to the value, it will be decided by the court.

The bond answers for damages which 3 rd parties may suffer when the sheriff does
not re-deliver the property to them
Problem: RTC Q.C. rules in favor of the plaintiff. A writ of execution is issued.
The sheriff sees that the defendant has property in Pasig. The defendant gets an
injunction from RTC Pasig to prevent the sheriff from levying on the property. Is
this allowed?
Answer: Yes, this is allowed. This is not interference by RTC Pasig. RTC Pasig
is merely telling the sheriff not to levy on that property in Pasig,. It is not
interfering with the judgment of RTC Q.C. itself (Manila Herald Publishing v.
Ramos)

What are the remedies of a 3rd party claimant?


1. 3rd party claim
Under Sec. 14, the 3rd party claimant should file an affidavit with the
following essential recitals:
1. He has a right to possession
2. Grounds of such right
3. Adverse party has no claim to property
Q : Does he have to give supporting documents?
A : Rules do not say.
Q. Where is affidavit filed?
A. With the sheriff.

Q. What will the sheriff do with the affidavit?


A. Serve to the party attachment creditor, with notice that if
attachment creditor does not give bond, officer shall relinquish
possession of property.

If the 3rd party claim is denied by the court, the 3 rd party claimant
cannot attack the denial via Rule 65, certiorari. The remedy of the 3 rd
party claimant would be to intervene.

2. reinvindicatory action action to recover title


3. damages recover against the indemnity or sheriffs bond within 120 days
from the date of the filing of bond
4. cancel annotation see Property Registration Decree
If attachment is levied on real property, he may file petition in land
registration court for the deletion of the annotation under the property
Registration Decree on the ground that the annotation was made through
error or mistake or fraud.
5. intervention
Intervention is not available in execution.
These remedies are cumulative (not mutually exclusive). However,
the 3rd party claimant cannot recover twice.
Q: Why is there a time limit for damages?
A: Because the issue is WON the creditor was entitled to the attachment.
Q: When is he liable?
A: If judgment is for the defendant.
Q : Is good faith a defense to a claim for damages for wrongful attachment?
A : It depends on the type of damages:
Reco v. Means, et. Al, L-7550, 4/29/55: XXX an attachment is wrongful if secured by a party
who is not entitled thereto. The element of malice is unnecessary. If the plaintiff has no right
to attachment because the facts stated in his affidavit, or some of them are untrue, although
he may have acted in good faith, he is liable for damages just the same.
Gasayta v. Fallon, 32 Phil. 245 XXX the mere fact that the plaintiff dismisses his action
renders him liable for damages sustained on account of the attachment issued his instance.
(Note : General liability attaches as long as the court shall finally adjudge that the
attaching party was entitled thereto.
Bangue General v. Bull & Co., 34 Phil. 164: However, even if judgment was rendered against
the attaching creditor but he proves he acted in good faith in procuring such preliminary
attachment, the adverse party cannot recover on the attachment bond.
(General Rule)
Where there is no issue malice compensatory damages (actual loss) can be claimed.
If there is malice, moral damages can be additionally be claimed (Lazatin v. Tuano, L- 12736,
7/31/61

Q: When is the counterbond liable?


A: When the judgment is in favor or the creditor and it is returned unsatisfied. (Check this!)
Q : It is mandatory for the court to dissolve the attachment or to lift it upon the proffer of a
counter bond?
A : (Note : Bautista cut de Leons answer of no and jumped to another question ) Yes, if the
application for a counter bond is made by the party whose property has been attached on the
person appearing in his behalf. (Rule 57 sec. 12). In Tiacqui, et al v. Jugo, 69 Phil. 437, the
court said of sec. 12; Under this provision, only a defendant, or the party whose property has
been attached, and not a stranger, may apply for the discharge of an attachment.
Q ; P got an attachment. It is discharged upon Ds filing a counter bond. Judgment for P.
D timely appeals to CA but before appeal is perfected is granted immediate execution.
This execution levied but returned unsatisfied. P would like to levy on the counter
bond. D and the surety object. Rule.
A : In City of Manila v. IAC. The Supreme Court said that sec. 17 refers to judgment makes no
distinction whether it's final or pending appeal, so it will apply.
Q: When is a separate action allowed?
A: No answer.
Q : Can an overdraft account of the defendant be attached?
A : No. An overdraft account is not a credit in favor of the judgment debtor, because the latter,
supposing he will ever avail himself thereof will become a debtor instead of a creditor. To
attach such overdraft account would be tantamount to compelling a person, by judicial
process, to borrow funds with which to pay his judgment creditor. Nava v. San Jose, L-3905,
10/31/51.
Property legally attached is property in custodia legis and cannot be interfered with without
the permission of the proper court but this is confined to cases where the property belongs to
the defendant or one in which the defendant has proprietary interest. Traders Royal Bank IAC,
L-66326, 10/21/34
Q : What about property under probate administration?
A : Sec 7 Rule 57, yes. But take note another remedy (according to Prof. Bautistas lecture
notes, this is the proper remedy) is to file a claim against the estate.
Q : You take a bus going to Baguio. It falls off the ravine because of a tremor. You were
able to hang on to some branch of a protruding tree and you survive. In your suit
against the bus company for breach of contract, can you file a motion for preliminary
attachment?
A : YES, provided that the defendant is about to depart from the Philippines with intent to defraud
his creditors (Rule 57, Sec. 1a) Take note however that absent any allegation of a specified
amount of damages being claimed, it is possible that the motion will be denied. Note that the
said rule requires that the action be for recovery of a specified amount of money or damages.
Q : What is the rational for not allowing attachment where the claim is unliquidated?
A :The amount of the bond cannot be ascertained because the amount of the claim is
undetermined. (Verify this.)
Q : You were sued for libel by Penthouse Magazine. You sued for damages. Can you get
an attachment? Do you have a ground for that?
A : No. The grounds in Rule 57, Sec. 1 must be strictly construed (Balbastro). Note that the
provision applies only to natural persons.

Q : A sues B to recover land which according to A he was defrauded by B to sell. Can A


attach this land?
A : No. The plaintiff cannot attach property which he is claiming to be his or which is the subject
of the litigation. Food for thought: Differentiate between replevin and preliminary attachment.
Q : Apart from giving notice, do you have notify owner? Is it required? If real property?
A : No. Could be occupant. Sec 7 (a).
Q. But he can still hold on to the property even if he is not given a bond? (Note: When bond is
not needed)
A. Yes. 1. If attachment creditor is the Republic of the Philippines or,
2. If he wants to take the risk.
Q. Can the attachment debtor direct sheriff as to what properties to attach first? Can he
attach real property if there are available personal, or does he have to attach first
personal before proceeding to attach real? Is there an order prescribed by the rules
that he must attach first personal and exhaust it and only if it is insufficient, can he
then proceed to attach real?
A: NO, the attachment debtor cannot direct the sheriff as to what properties to attach first.
Neither is there any requirement in the rules to attach personal property first. This is in
contrast to execution where Rule 39, Sec. 8 (d) specifically states that real property will be
levied upon only if sufficient personal property cannot be found.
Food for thought:

Differentiate between preliminary attachment and execution.

Sir: In execution, execution debtor can direct which property will be executed.
(Student) Can sheriff execute on properties of local governments?
Sir : No. In administrative code just like salaries of government officials, state property is
exempt from execution.
Q: How about in the form of writ of attachment? What does form say (Form No. 16)?
A. real and personal.
Q. How about the form of writ of execution?
A. Sec. 8 Rule 39.
Note: In case of personal property capable of manual delivery, the writ of attachment is
implemented by taking physical custody of the property called LEVY and Carry. Although they
can make a constructive levy because hakutan can be very violent.
Q. Where will sheriff bring property kung hahakutin niya? Bakit hindi niya bigay sa plaintiff,
anyway may bond naman?
A. He cannot.
Q. In no way can he sell property which is attached?
A. He can.
(Note : Perishable on motion, court may order sale)
Q. What does the sheriff do with personal property he attached?
Sir : He has to take care of it so he will put it in bodega, a safe place and he has to have it
guarded. This entails expense. Unless they are gold bars, I dont think it is worth it. That is
the practical thing about attachment because of the warehousing expense which will be at the

expense of the creditor to begin although subject to reimbursement. Expense easily outsteps
value of property unless they are gold bars.
(3) PRELIMINARY INJUNCTION
( Note : Granted at any stage of the action prior to final judgment)
The rationale for preliminary injunction is to preserve the status quo. It is important to
preserve the status quo since otherwise, the judgment may be rendered academic. The status
quo is the last, actual, peaceable, uncontested status prior to the controversy which gave rise to
litigation (Rodolfo v. Alfonso). For example, a fence is put up in a certain place. Controversy over
that fence ensues. The status quo is the status before the fence is put up. Otherwise, the parties
would be racing against time and will try to change the situation before the suit is filed.
Why do we want to maintain the STATUS QUO ANTE LITEM or the STATUS QUO
ANTE of the parties? If we do not maintain the status quo and parties are free to change status
quo ante, the litigation might become moot or the judgment rendered therein may become
ineffectual. The parties will be free to take the law in their own hands. The Court must be given
the opportunity to decide the controversy between the parties at the point it arose, as it existed at
the interruption, without either party being able to alter the situation during the pendency of the
litigation and preempt the judgment of the court. This would result in grab law the parties taking
the law in their own hands.
Q.
What is meant by the comparative or relative convenience in the law of
injunction?
A.
Injunction can or cannot be granted by considering the situation of the parties. Will the
damage suffered by the plaintiff if injunction is not given be as much or less than the injury to be
suffered by the defendant if injunction is given? (Note: Balance of comparative inconvenience
test of irreparable damage)
Q. A group of stockholders is disputing the election of directors of a corp on the ground
that the meeting was not properly called in accordance with the by-laws. And this group
called its own meeting and elected its own set of directors, and thereafter brings an action
to contest the election of the first board and seeks injunction to prevent the first board
from sitting and acting as the board. Can injunction be properly issued? What is the
status quo to be preserved by a preliminary injunction in such a case?
A: The status quo ante is the situation before the election of the first board. Therefore, none of
the boards should sit.
Q: A and B own adjoining lots. A claims different boundary and builds fence in new
boundary. A files suit against B and enjoins B from interfering or breaking down the fence.
A says: When I sued, tapos na ang fence. That is the status quo.
A: That is not the status quo before the dispute. The status quo before the dispute is the original
boundary to be maintained. Kung hindi, mag-uunahan sila to change the status quo and then
magdedemanda na agad yong isa. That is not the status quo defined.

The court may order a bond to be posted upon its discretion. An injunction may not be
granted ex parte. However, a TRO can be granted if it is urgent. Within 72 hours, there is a
hearing. If the court finds that the TRO should be extended, the court may grant an additional
17 days.

Only the court issues a TRO. If its a multi-branch, the executive judge issues.

Ways of Dissolving an Injunction


1. no ground
2. bond insufficient
3. comparative or relative damage
The defendant will suffer more damage if the injunction is issued
Q.
Can a court issue preliminary injunction enjoining all persons from entering
certain premises?
A.
No. To enjoin party litigant. Injunction operates in personam. You cannot issue injunction
against the whole world.
Q: Some actions cannot be enjoined. What are these actions? Suppose Britney Spears
was contracted to sing at the Araneta, but it turned out that she had already entered into
an earlier contract with the Manila Hotel. Parties in Manila Hotel bring injunction to
prevent her from singing. Is the injunction proper?
A: Yes. You cannot compel her to sing, but you can prevent her from singing.
Q: What are the injunction-proof actions?
1. Acts already consummated.
2. Collection of taxes by Revenue Code provision
3. Mortgage foreclosure of government financial institutions with colatilla: if you have not
paid so much, e.g. 20 percent
4. Labor disputes, strikes, unfair labor practice. You cannot enjoin strikes.
5. Criminal prosecution.
Q.
A.

What is the lifetime of a temporary restraining order?


20 days.

Q.
TRO can be issued by the Supreme Court. Is that TRO good for 20 days only?
A.
No. Rule 58, Sec. 5 provides that a restraining order issued by the Supreme Court or
any member thereof (Maam Avena finds this anomalous since the Supreme Court decides either
en banc or in divisions; not individually) shall be effective until further orders.
Q.
How about the TRO issued by the CA?
A:
A TRO issued by the Court of Appeals or a member thereof (again, an anomalous
situation) is effective for 60 days from service on the party or person sought to be enjoined. (Rule
58, Sec. 5)
Q.
Injunction can be preventive or mandatory. Can an MTC issue a writ of
preliminary mandatory injunction in unlawful detainer case?
A.
Rule 70, Sec. 15 provides that the MTC can issue a writ of preliminary mandatory
injunction. Note however that Art. 539, paragraph 2 of the Civil Code provides only for cases for
forcible entry. Unlawful detainer is different from forcible entry. According to Prof. Bautistas
lecture notes, in unlawful detainer cases, an inferior court has no jurisdiction to issue a writ of
preliminary mandatory injunction. Check this please!
Q.
A.

On what grounds may writ of preliminary injunction be dissolved?


1. No sufficient cause for application.
2. In case bond is required, the bond is not sufficient.

(4) RECEIVERSHIP

The function of a receiver is to preserve the property. Sec. 6, Rule 59 enumerates the
powers of a receiver. The receiver has no power to operate the business. A party may not be
appointed as a receiver since the receiver must be impartial.
Under Sec 1 (b), Rule 59, property in custodia legis can be put under receivership.
Property is put under custodia legis when it is under attachment or it is under the administration of
the court. Prof. Bautista asks, Will this not cause a confusion as to which court has authority
over the property the court which attaches for example and the court which orders the
receivership.
Q.
Action to recover one million peso indebtedness. Defendant debtor is a logging
company and operates a lumber mill. Upon allegation and showing that the defendant is
in imminent danger of insolvency, can the plaintiff properly sue a receivership over the
lumber mill of the defendant?
A.
No. Receivership can only be issued for property which is the subject of the litigation.
Here, it is not the mill but the indebtedness which is the subject of the litigation.
Sir: Receivership is rather drastic, equivalent to sequestration of the PCGG. But there
are exceptions, i.e. instances where receivers may be appointed for property not subject of the
litigation. See Rule 39, Sec. 43.
Problem: A bank files an action to recover an unsecured loan from a borrower who operates a
lumber yard. The bank alleges that the lumber yard is on the verge of insolvency. The plaintiff
bank asks the court to issue a writ of receivership. Rule.
Answer: This is not proper. The property under receivership must be the subject matter of the
action. In this case, the subject matter of the action is not the lumber yard but the loan. However,
there are 2 exceptions to the general rule that only property which is the subject matter of the
litigation may be put under receivership:
1.
Sec. 1 (c), Rule 59
2.
Sec. 41, Rule 39 this operates like an injunction and attachment combined
Q.
Who may be appointed receiver?
A.
Parties to the litigation unless parties agree. Because the function of the receiver is the
representative or arm of the court so he has to be impartial.
Sir: A receiver is usually a last ditch remedy.
Q.
A.

Can property under custodia legis be put to receivership?


Yes, in the case of judicial mortgage foreclosure under Rule 59, Sec. 1 (c).

Q.
A.

What bond and who has to put up the bond?


1. Person petitioning for receivership
General Rule: No
Exception: if ex parte petition
2. Receiver to assure that he will do his job.

3 Bonds
1. Applicants Bond
2. Receivers Bond (Sec. 3)
3. Counterbond
Q: Action to recover P5,000.00 which was incurred to maintain operation in the premises
alleging insolvency of owner, will application for receivership prosper?

A: NO.

(5) REPLEVIN (To recover possession)


Replevin
In replevin, there must be an allegation that the property is not under custodia legis in
order to avoid interference.
Replevin is allowed at any time before the answer is filed. Also, replevin is allowed only if
there is recovery of possession of personal property.
In replevin, the sheriff takes the personal property and keeps it for 5 days. After the 5 th
day, the sheriff should deliver the property to the plaintiff unless the defendant objects to the
sufficiency of the bond or files a counterbond. The defendant cannot object at the sufficiency of
the bond or file a counterbond at the same time.
Replevin bond answers for the return of the property and the loss of the value of the
property since most personal property (except wine and jewelry) depreciate.
Problem: Can plaintiff use the thing?
Answer: No answer.
Q.
A.

At what stage of the litigation will a writ of replevin be issued?


At the commencement of the action and anytime before answer.

Q.

When sheriff has in his hands a writ of replevin, what does he do with it? Assume
you are the sheriff entrusted with a writ of replevin, how do you go about it? Assume
property is a Trendy motorcycle, what will you do?
The sheriff shall take possession of the motorcycle and retain it in his custody. Within 5 days
after the taking of the property, if the adverse party does not avail of any of the remedies available
to him, the sheriff must deliver the property to the applicant.
Q.
Sheriff takes the motorcycle and 5 days pass. Defendant did not ask for it nor
object to the bond. Sheriff gives it to the plaintiff. Assuming plaintiff knows how to
ride the motorcycle, can he ride it? Can he use it?
A.
Yes.
Q.
Di parang sa kanya na. Paano kung nabangga? Can he really use it? How much
is the bond double the value? What is the bond for?
A.
2 things: first, to return, and second, for damages.
(Note that in attachment, the sheriff keeps property under guard.)
Q.

How can defendant obtain redelivery of property pendente lite? If he objects, he


cannot unless the bond is found to be insufficient.
A.
Defendant gives bond double the value of the property.
Q.
A.

How about the applicant?


Gives bond double the value of the property.

(6) SUPPORT PENDENTE LITE

Support pendente lite is allowed only at a proper action (i.e.action for support, legal
separation, annulment).
Problem: Suppose support pendente lite is denied by the trial court. Can the plaintiff appeal for
support pendente lite in the appellate court.
Answer: Yes, see Ramos v. CA (June 30, 1972)
The general rule is that money judgments can only be enforced through execution; not
through contempt. However, support pendete lite, a money judgment, may be enforced by
contempt. This is one of the two instances wherein money judgment is enforcible by contempt.
The other instance is Rule 39, Sec. 40, last paragraph, which provides that a judgment obligor
required to pay in fixed monthly installments may be punished for indirect contempt if he fails to
pay any such installment when due without good excuse.
Q.
A.

An order for payment of a alimony pendente lite is immediately executory.


Suppose defendant was ordered to pay alimony pendente lite but refuses to pay
and therefore disobeys the order. Can he be held in contempt of court?
Yes, provided: 1. He has means to do so and 2. Yet he does not comply with the order

Q.
A.

When can an application for alimony pendente lite be filed?


At the commencement of the action and at anytime afterwards before judgment in the
trial court.

Q.
A.

How about pending appeal?


Alimony pendente lite can no longer be issued pending appeal because plaintiff has
already been given a more adequate remedy or no right to remedy at all.

Q.
A.

Although there is an alternative means to enforce the order. What is that?


Order execution.

XI.

DISCOVERY

The purpose of discovery is to obtain the fullest knowledge of the issues and fact.
Originally, discovery was intended as a device for expediting the case. By being able to obtain
more knowledge as to the issues and facts, this would ideally save on time. However, according
to Prof. Bautista, discovery does not always make the case shorter: contrary to expectations that
it will expedite the litigation, it has protracted it because this is an additional battleground/source
of skirmishes.
The goals of discovery are:
1.
2.
3.

to find out how strong the case is


to anticipate the opponents actions
to get evidence to support ones case

The following are not subject to discovery:


(1) privileged matters

Work Product Rule

Related to privileged matters is the work-product rule. The work product


rule was enunciated in the case of Hickman v. Taylor. In that case, there
was a barge which sank. Several crewmembers perished. The owner of
the barge hired a lawyer, Fortenbough. He interviewed the surviving crew
members. When the heirs of the crew members filed an action against
the barge owners, their lawyer asked Fortenbough to produce all his
notes and interviews. Fortenbough refused. The Supreme Court said
that the notes, memoranda, impressions of the lawyer, etc. in preparing
for a case are not discoverable. Such are not discoverable not because
of the attorney-client privilege but because of the so-called work product
rule. If such are discoverable, then the legal profession would collapse.
Lawyers would not be diligent since their very own efforts could be used
against them.

Examples of privileged matters:


i.
right to privacy the lawyer cannot get the entire sexual
history of the other party
ii.
trade secrets may be allowed if its an in camera (in the
chambers) disclosure

(2) impeaching evidence


This is a gray area as commentators are not in agreement.
The argument is that if the intention is shown in advance to
discover impeaching evidence --then its useless.
DEPOSITIONS
Depositions are taken to preserve testimony to avoid flip-flopping. Counsel should try
to take the deposition right away when the impressions are still fresh.
Sec 6, Rule 25 (Effect of Failure to Serve Written Interrogatories) and Sec. 5, Rule 26
(Effect of Failure to File and Serve Request for Admission) are new provisions. The purpose of
these 2 new provisions is to provide sanctions for failure of counsel to resort to these remedies
since the time of the court is valuable. Therefore lawyers resort to pro forma interrogatories so
that they may not be precluded from calling the adverse party as a witness.
Classification of Depositions
1. According to the Stage in Litigation (when taken)
a) before action or pending appeal or in perpetuam rei Rule 24
b) pending action or de bene esse Rule 23
2. According to Manner of Taking
a) oral
b) written
See Rule 134 for perpetuation of testimony.
Leave of court is necessary when no answer has been filed. One of the purposes of
Secs. 16 and 18 of Rule 23 is to confine and limit the scope of the examination. If there
is no answer yet, there are no issues. If there are no issues, then anything under the sun
can be asked. The scope must be limited.

Kinds of Written Interrogatories


1.
2.
3.
4.

Direct
Cross
Re-direct
Re-cross

Under Rules 23 and 24, the written interrogatories are the following: direct, cross, redirect, and re-cross. There can be more than 1 set.
Under Rule 25, there is only 1 set of written interrogatories. In addition, there are no redirect or re-cross interrogatories.
Any party make take depositions. The parties may take the deposition of any person. It
makes a difference if the deposition is that of partys or a non-party. The difference is as
to use. If the deposition is that of a non-party, the deposition may be used for
impeachment purposes. For example, it may be used to prove a prior inconsistent
statement. If the deposition is that of a party, the deposition may be used for any
purpose. Any purpose means to use as substantive evidence to prove the truth. For
example, the deposition of Atong Ang can show that his cook makes P2000. However,
under Sec. 4(c), Rule 23, the deposition of a non-party may be used for both
impeachment or evidentiary purposes if it falls under any of the 5 circumstances.
Depositions are exceptions to the hearsay rule. Depositions are really hearsay in the
cases enumerated in Sec. 4(c), Rule 23. But this is balanced by the oath taken and the
cross.
The taking of a deposition does not mean that the deponent is your witness. Since the
deponent is not your witness, the party is not bound to introduce the deposition as
evidence. If a party uses a deposition, the party makes the deponent a witness except in
cases of impeachment.
The person before whom the deposition is taken cannot rule on the objections. However,
these objections must be made right away.
Q: Suppose a deponent refuses to answer a question propounded upon oral examination?
A: The proponent may EITHER STOP the examination or COMPLETE IT ON OTHER MATTERS
and then take the necessary steps to secure an order from the court COMPELLING DEPONENT
TO ANSWER.
Q: Supposes deponent refuses to comply with the order?
A: The court may make such orders as are just, and among others, the ff:
1. an order that matters regarding which the questions were asked shall be taken to be
established;
2. an order refusing to allow the disobedient party to support/oppose designated claims/
defenses
3. an order striking out pleadings/parts thereof, or staying further proceedings until the order
is obeyed or dismissing the action or proceeding or any part thereof, or rendering a
judgment by default against the disobedient party
4. an order directing the arrest of the party.
Q. What are the kinds of depositions?
A.
1. As to form:
Oral and written.

2. As to when they may be taken:


De benne esse those taken for the purpose of a pending action (Rule 23)
In perpetuam rei memoriam- those taken to perpetuate evidence for purposes of an
anticipated action (Rule 24)
Q. Why is there a need to ask leave of court to take depositions before an answer is filed?
A. So that the court can give limiting orders to protect the deponent as in Sections 16 and 18 of
Rule 23.
Q. When is the only instance where you always need leave of court before taking
depositions?
A. When the deponent is in prison.
Q. Can you take the deposition of a person who resides within 100 km from the place of
trial?
A. Yes.
Q. What is the 100 km limit for?
A. It modifies the use of the deposition but not the right to take a deposition.
Q. Does the 100 km limit apply to criminal cases?
A. No. Accused has right to coercive process.
Q. Do you make the deponent your witness by taking his deposition?
A. No. (Sec 7 Rule 23).
Q. What is the significance of this? Why is it important to determine whether he is your
witness or not?
A. Because when the deponent is not your witness, the four kinds of impeaching evidence
(contradictory evidence, prior inconsistent statements, reputation evidence and prior
conviction) may be used against him. If the deponent is your witness, reputation evidence is
not allowed.
Q. Why do you want to take a deposition before action or pending appeal?
A. To perpetuate his testimony in case he might die. To pin him down and impeach him with prior
inconsistent statements. As substantive evidence, to prove the truth like reported testimony
which is an exception to the hearsay rule.
Q. Who can be a deposition officer within the Philippines?
A. Notary public, Judge, any person authorized to administer oaths.
Q. Who are disqualified?
A. Relatives within the 6th degree of consanguinity or affinity or employee or counsel of any of the
parties; or who is a relative within the same degree or employee of the counsel, or who is
financially interested in the action.
Q. Does the deposition officer have the power to rule on the admissibility of evidence?
A. No. He can only take note of the objections. (In contrast, a commissioner can rule upon the
admissibility of evidence unless otherwise provided in the order of reference. (Rule 32, Sec. 3))
Q. If the officer cannot rule on the admissibility of evidence, what is the point of raising
objections during the deposition-taking?
A. There are objections which will be deemed waived if not raised during the taking of the
deposition such as grounds which might have been avoided or removed if presented at that time.
Rule 24 Section 29.

Q. How many sets of interrogatories may be served a party under Rule 25?
A. One.
Q. What is the difference between Rule 26 and Rule 129 on admissions?
A. Rule 26: may not be used for other purposes but only for the pending action.
Rule 129: may be used in other proceedings.
INTERROGATORIES TO PARTIES
Q: Differentiate between Rule 23 and Rule 25.
RULE 23

RULE 25

As to whom addressed.

May be addressed to a party


or non-party.

Addressed only to the adverse


party.

Procedure

May be oral or written and


sent to an officer.

Served to the adverse party


himself.

Need for cross-interrogatories

Served within 10 days from


receipt of notice and written
interrogatories.

No cross-interrogatories.

Sanctions
answer.

to

Pay expenses of other party.


Contempt, after there has
been a refusal of the order to
answer.

Judgment by default or
dismissal of the action
or
proceeding or part thereof or
strike out all or any part of the
pleading.
Payment
of
expenses to the other party or
contempt.
There
are
sanctions common to both
devices. (Section 3 Rule 29)

are

Any party who was present


or represented at the taking of
the deposition or who had due
notice thereof or who had the
opportunity to serve crossinterrogatories.

Only on the party served.

No fixed time.

Within 15 days after service of


interrogatories,
unless
extended or reduced by the
court.

On
whom
binding.

for

refusal

answers

Time to answer.

Q: What is the effect of failure to serve written interrogatories?


A: The party not served may not be compelled by the adverse party to give testimony in open
court or to give a deposition pending appeal. (Rule 25, Sec. 6)
Q: Suppose a party to whom R 25 Interrogatories (to Parties) are served, refuses to answer
the set of interrogatories?
A: Consequences of refusal are:

1.
2.
3.
4.
5.
6.
7.
8.
9.

order to answer
contempt
subject of discovery deemed admitted/established
party prohibited from introducing contradictory evidence
suspension of proceeding
declared non-suited or in default
striking of pleading
arrest
cost

PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS


Q: What is the difference between subpoena duces tecum and an order for production or
inspection of document?

Nature

SUBPOENA DUCES TECUM

ORDER FOR
PRODUCTION/INSPECTION

Process requiring a person to bring


with him any books, documents or
other
things
under
his
control/possession.

Order to produce or permit the


inspection
&
copying
or
photographing, by or on behalf of the
moving party, of any designated
documents, papers, books etc. OR
order a party to permit entry upon
designated land or other property in
his possession or control for the
purpose of inspecting, measuring,
surveying, or photographing the
property or any designated relevant
object or operation thereon.

To
whom
directed
When it may
be asked

To any person

Only to a party

Only during trial

Before and/or during trial

Issued by a court before whom the


witness is required to attend, or court
where the deposition is to be taken,
or clerk or body authorized by law, or
any Justice of SC or CA in any case
or investigation pending within the
Phil.

Issued by the court where the action


is pending

When issued

Issued upon request

Issued upon a motion

Must
good
cause
be
shown?

NO.

YES.

Grounds
quashal

Unreasonable
and
oppressive,
irrelevant, or the person in whose
behalf the subpoena is issued fails to
advance the reasonable cost of the

No good cause shown

Issued
whom

by

for

production thereof.
Q: Who issues subpoena?
A: It shall be issued by the COURT or JUDGE before whom the witness is required to attend or
by the JUDGE IF THE RTC of the province or ANY JUDGE OF MUNICIPALITY/city where the
deposition is to be taken or the investigation is to be conducted, or by any JUSTICE OF SC OR
CA in any case pending within the RP. If a prisoner not confined in a municipal jail, is required to
attend before an inferior court, the subpoena may be issued by the RTC judge of the province
where the inferior court is sitting, or by SC or CA Justice.
Q: As to form and manner of issuance, is there something special on subpoena duces
tecum?
A: For a SDT to be enforced, it must comply with the ff requirements:
1. it shall DESIGNATE OR DESCRIBE REASONABLY the papers or articles demanded; and
2. such papers/articles must prima facie appear relevant to the issue.
Q: Thee is a special rule for issuance of a SDT for deposition. What is it?
A: Under S. 5 of R 23, when a party wishes to take the deposition of a witness upon oral
exam/written interrogatory, the first step to take is to serve the NOTICE provided in S. 15 & 25 of
R 24.
To secure the attendance before the officer designated to take the deposition, a subpoena should
be issued. This subpoena may be issued by the clerk of court of the RTC for the province, or by
the judge of the municipality/city where the deposition is to be taken after receiving proof of
service of notice. The clerk, however, may NOT issue the SDT without an express order of the
court, because the issuance of the order involves the exercise of judicial discretion as to the
requirements regarding DESCRIPTION and RELEVANCY of the document/objects required to be
produced.
PHYSICAL AND MENTAL EXAMINATIONS OF PERSONS
Q. Can you ask for a psychiatric examination of a witness?
A. No. only a party.
Q. If a party refuses to be subjected to discovery, can you put him in jail?
A. Yes, except for refusal to submit to a physical or mental examination.
Q: If the physician is going to report the findings, does that not violate the rule on
privileged communication?
A: NO because the privilege covers only a situation where the information was acquired by a
physician in attending to a patient in a professional capacity, which info was necessary to enable
him to act in that capacity and which would blacken the character of the patient. The physician
cannot testify only in a CIVIL case.
Q: How about the person who is examined, does he get a copy of the report? Is he entitled
to a copy?
A: Yes. If requested by the person examined, the party causing the examination to be made shall
deliver to him a copy of the detailed written report of the examining physician setting our his
findings and conclusions.
Q: What are the consequences of his asking for a copy?
A: He waives any privilege he may have regarding the report of examination made at ANY
OTHER TIME of the same mental or physical condition and consequently, he may be compelled
to produce such report. (Rule 28, Sec. 4)

Q: Effects where a party refuses to submit to a physical/mental exam?


1. contempt
2. subject of discovery deemed admitted/established
3. party prohibited from introducing contradictory evidence
4. suspension of proceedings
5. declared non-suited or in default
6. striking of pleadings
7. cost

XII.

PRE-TRIAL

Q: What is the purpose of pre-trial?


A: 1. To arrive at amicable settlement
1. to simplify issues
2. limit the number of witnesses
3. amend pleadings
4. obtain admissions
5. advisability of referring the matter to commissioners and possibility of compromise
Q: Does it cover only factual issues?
A: No. Factual as well as legal issues.
Sir; pre-trial is not mandatory if the issue is purely legal.

When conducted: after the last pleading has been served and filed
Exception: where the period to file the last pleading has lapsed.

Sarmiento vs. Juan: PT may be properly scheduled even if plaintiff had not yet filed his
answer to the defendants compulsory counterclaim since no answer is required to be filed
thereto.

It is the duty of the plaintiff to move ex parte that the case be set for PT.

The notice of PT is served on counsel or on the party who has no counsel

Sec. 4: Appearance of Parties


- There is a necessity for the personal appearance of the parties at the PT Conference.
The purpose is to compel the parties to appear personally before the court to reach, if
possible, a compromise.
- Special authority for an attorney to compromise is required under Sec. 23 Rule 138. If
the party is a corporation, such authority must be made with an appropriate resolution of
its BOD.
- Where nobody appeared at the PT except the counsel for the plaintiff but said counsel
had no special authority to represent the plaintiff, the plaintiff may properly be declared
non-suited. The plaintiff may be so declared non-suited and the case dismissed without
motion by the defendant.

Sec. 5: Effect of failure to appear


- Plaintiff: cause for dismissal of action WITH prejudice unless otherwise ordered by the
Court
- Defendant: shall be cause to allow plaintiff to present his evidence ex parte and the court
to render judgment on the basis thereof.
- Trial court has discretion to declare a party non-suited and, unless otherwise provided,
such dismissal has the effect of an adjudication on the merits.

REMEDY:
1. Defendant:
2. Plaintiff:

file MR (without need for affidavits of merit) on the grounds of FAME


If denied, file certiorari (R.65) as such order of default is interlocutory
Appeal from Order of dismissal, as it is a final order.

When a PT has already been held, the fact that an amended complaint was later filed does
not necessitate another PT

Sec. 6: Filing of PT Brief is mandatory. The failure to file will have the same effect as failure
to appear at PT.

Q: Can a lawyer ask for postponement on the ground that he is suffering from LBM?
A: Yes, if every 5 mins, he has to go to the bathroom.
Q: Does he have to submit a medical certificate?
A: NO.
Q: Is it possible to serve the notice to the party thru counsel?
A: Yes, but only if the party has counsel. Rule 18, Sec. 3 provides that notice of pre-trial shall be
served on counsel or on the party who has no counsel. The counsel served with such notice is
charged with the duty of notifying the party represented by him.
Q: Is pre-trial mandatory?
A: Yes for both civil cases (Rule 18, Sec. 2) and criminal cases (under Speedy Trial Act).
Q: Can you still resort to discovery after pre-trial?
A: YES. (Rule 19, Sec. 6 (e))

XIII. TRIAL
SUSPENSION OF ACTION
Q: What are the grounds for postponing a trial upon motion of a party?
A: The only grounds are:
1. ABSENCE OF EVIDENCE, the materiality of which and the diligence used to obtain it,
being shown by affidavit; and
2. ILLNESS OF PARTY OR COUNSEL if it appears on affidavit that the presence of such
party /counsel in the trial is indispensable and that the character of his illness is such as to
make his non-attendance excusable.
Q: What about impending death?
A: On a case to case basis.
Q: Must it be in the form of a medical certificate?
A: Yes AND accompanied by an affidavit.
Q: can reverse trial be done in civil case ?
A: YES.
Q: Can The court require the plaintiff to present his witnesses first, on direct testimony
before anyone of them is cross-examined? For instance, the court says, how may
witnesses are going to be presented? Lima po. Judge says, Okay, bring all of them here

and lets listen to their direct testimony and after the direct testimony of all of them, I will
allow the defendant to cross examine them one by one. Is that proper?
A: YES because it is still within the rule that the P present his evidence first in the form of
testimony
Q: Can a judge in a civil case direct that P or a party present all the direct testimony of all
his witnesses in the form of affidavit subject to cross examination?
A: YES in the case of SUMMARY PROCEEDINGS. (By affidavits & counter-affidavits)
NO in non-summary proceedings.
Q: Can a deaf-mute testify?
A: YES Rule 132 (5) you can ask LEADING QUESTIONS if he is a deaf mute.
Q: In a vehicular accident case, can the parties stipulate that the road where the accident
occurred is FIVE METERS WIDE at least for purposes of litigation?
A: Theoretically, yes. BUT this might collide with the prescription found in the Consti v. rendering
advisory opinion because if this can be done, you can practically take a hypothetical case and
submit it for resolution by the court.
TRIAL BY COMMISSIONER
Q: If the right to trial with the assistance of assessors is demanded, is it a matter of right?
A: Yes under R 32 (1), the judge SHALL x x x meaning judge has no discretion.
Sir: this is practically a dead provision but it is the kind of provisions which they resurrect in the
bar exams.
Q: How many commissioners may be appointed?
A: 2.
Q: What are the functions of the commissioners?
A: Rule 32(8). They shall sit with the judge during the hearing of an action & advise him in the
determination of the questions of facts involved.
Q: Can commissioners also write opinions?
A: Yes BUT it is the judge who finally determines the ruling. The value of the opinion is merely to
advise the judge on questions of fact.
Q: When are commissioners appointed by the trial court?
A: By motion of BOTH PARTIES OR by the COURT MOTU PROPRIO (R 33, s. 2)
Q: Can any matters/issues be referred to Commissioners?
A: YES. See Rule 32, Sec. 9.
DEMURRER TO EVIDENCE
Q: What is the ground for demurrer to evidence?
A: Upon the facts and the law, the P has shown no right to relief (R 35,S1)
Q: If the demurrer is denied, the D can still present his evidence. What are the courses of
action available to defendant after the P has concluded the presentation of his evidence?
A: His options are:
1. commence with the presentation of his evidence
2. submit case for decision on the basis of Ps evidence alone and WAIVE the presentation
of his evidence.

3. File demurrer to evidence.


Q: What is the risk in D filing a demurrer?
A: If the motion is granted and there is an appeal of the judgment and it is reversed, the movant D
loses right to present his evidence.

XIV. JUDGMENTS
Q: What is a judgment?
A: It is in WRITING, personally and directly prepared by the judge, stating clearly and distinctly
the facts and the law on which it is based, SIGNED by him and filed with the clerk of court.
Note that the requirements as to the contents/recitals of a judgment on a criminal case is a little
different.
Q. Basic requirements of a valid judgment?
A. 1) in writing; 2) personally and directly prepared by judge; 3) state findings of fact and law; 4)
signed by judge
Q. Does this apply to judgments of inferior courts?
A. Yes, for uniformity of procedure and due to constitutional requirements. No decision shall be
rendered by any court without expressing clearly and distinctly the facts and the law on which it is
based. (Art. VIII, sec. 14, Consti)
Q. Suppose there is a conflict between the dispositive portion and the body of the decision, what
will prevail?
A. Dispositive portion.
Q: What is a judgment by COMPROMISE?
A: this is a judgment which is IMMEDIATELY EXECUTORY and final whereby the parties agree
on the issued litigated upon. It is NOT APPEALABLE because parties have consented .
Q: What is an example of a NUNC PRO TUNC JUDGMENT? (Judgment rendered by court
NOW FOR THEN)
A: One rendered by a court, ordering the recording of an act FORMERLY DONE but which does
not appear on the record. The recording of such judgment it previously rendered retroacts to the
fate when it is was previously rendered.
Q: What is a COGNOVIT NOTE?
A: It is a provision in a promissory note usually appointing the holder in case of default of the
maker to pay the note on maturity. The holder is appointed as attorney in fact to go to court and
confess judgment for the maker, These provisions authorize getting judgment on the note, to
confess judgment on the maker.
Q: Are these cognovit notes valid?
A: NO. It is prohibited because the maker is DENIED HIS DAY IN COURT therefore due process
is not observed. It violates rules on appeals, on compulsory counterclaim, and Art. 1308 of CC.
Q: Who is entitled to recover costs ?
A: Prevailing party.
Q: Suppose there is no promulgation as to costs, who will pay the costs?
A: Each will bear his own cost. TREBLE COSTS if action is frivolous (S 3)

Q. What is a sin perjuicio judgment?


A. A judgment without stating any of the facts in support of the courts conclusion and reserving
the making of such statements of facts in a subsequent decision. (Director of Lands v. Sanz, 45
Phil 119)
Q. Is it possible for the RTC to issue a minute resolution?
A. No. (Art. VIII, sec. 14, Consti)
Q. What about an RTC judgment on an appeal from an MTC case?
A. Yes. Every decision on final resolution of a court in appealed cases shall clearly and distinctly
state the findings of fact and the conclusions of law on which it is based, which may be contained
in the decision or final resolution itself, or adopted by reference from those set forth in the
decision, order or resolution appealed from (BP 129, sec. 40).
Q. What do you understand by a cognovit judgment? Is this a judgment by confession?
A. Yes. A cognovit judgment is defined as a confession of judgment whereby a portion of the
complaint is confessed by defendant, who denies the rest thereof. (PNB vs. Manila Oil Refining,
43 Phil. 460). This is not a valid judgment because it violates due process requirements, rules on
appeals and compulsory counterclaims.

COGNOVIT NOTE
o Provision in a promissory note usually appointing the holder, in case of default of the
maker to pay the note on maturity, as attorney in fact to go to court and confess
judgment for the maker.
o Prohibited because the maker is denied a day in court
o Due process is not observed because it violates the following:
1. Rule on appeals
2. Rule on compulsory counterclaim (if the maker has a CCC, it will be barred)
3. Art. 1308 of the New Civil Code

NUNC PRO TUNC JUDGMENT


o Rendered by a court, ordering the recording of an act it had formerly done but which
does not appear on the record
o The recording of such judgment it previously rendered retroacts to the date when it
was mutually rendered.
o Judgment rendered by the court now for then
o There originally was two classes of nunc pro tunc judgments, but no only the second
kind is allowed:
1. When a judgment has already been issued but through the judges fault or
through no fault of the parties, it was not made of record.
Ex. Judgment issued but before it could be reduced into final form, the
plaintiff died, then they could issue a judgment antedated before the
plaintiff died. (not allowed anymore)
2. Judgment had really been issued but due to error/mistake was not made of
record.

Q. Are judgments nunc pro tunc valid in our jurisdiction?


A. Lichauco v. Tan Pho (51 Phil. 862) held that it is not valid. The attempt to enter an order nunc
pro tunc there approving the loan was not allowed.

However, it may be valid if there is basis therefor. It may be deduced from the notes that if the
case has already come to its end but the facts have not been made of record, then a judgment
nunc pro tunc may be valid.
Q. How about a judgment directing defendant to pay plaintiff the equivalent in Philippine currency
of US$12,000 at the rate of exchange prevailing at the time of payment. Is that a valid judgment?
A. Yes. The Rule of Obligations and Contracts says that payments of money must be in
Philippine currency even if pegged in foreign currency.
SIR: That refers to obligations incurred in the Philippines. But there is an issue here. Is not the
judgment thereby rendered indefinite or conditional?
A. 2 Moran, p. 194.
Q. Who taxes costs? Judge or clerk?
A. Rule 142, sec. 8.
Notes: lower court municipal judges; SC clerk or corresponding court; no pronouncement
each bears own costs
Q. When does judgment become final?
A. When time for appeal has lapsed and no appeal was filed.
Q. What judgments are immediately final and executory?
A. 1) judgment by compromise; 2) judgment for accounting; 3) judgment for partition; 4) judgment
for support; 5) judgment in unlawful detainer
JUDGMENTS BY COMPROMISE
Immediately executory and final, whereby the parties agree on the issues litigated upon.

JUDGMENTS FOR COSTS


o Prevailing party is entitled to recover costs
o If there is no promulgations as to costs, each bears his own costs
o Treble costs are imposed if the action is frivolous (Sec. 3)

Q. What are actions to consolidate ownership?


A. E.g. pacto de retro sales
Q. What is the difference between an advisory opinion and a declaratory judgment?
A. Advisory opinion facts are hypothetical and there is no actual controversy.
Declaratory judgment there are ripening seeds of controversy

DECLARATORY JUDGMENTS
Declaratory Judgment
Proceeding determinative of the
rights of the parties to the case
Quieting effect
Ripening seed of controversy
Discretionary
o Not available to test the validity of
cases.

Advisory Opinion
Rendered at request of the executive
or legislative dept

a tax ordinance, Philippine citizenship, and moot

Q. How does declaratory relief action differ from an ordinary action?


A. Ordinary action there is an actual controversy and the judgment therein has coercive effect.

Declaratory relief no actual controversy but only ripening seeds of controversy and the
judgment has no coercive effect.
Q: How do you distinguish an ADVISORY OPINION from a declaratory judgment?
ADVISORY OPINION
*
Rendered by the executive
legislative department

or

in advisory opinion, everything is


vague and hypothetical

To guide action

DECLARATORY JUDGMENT
Proceeding determinative of the rights of the
parties to the case
Coercive relief may be in separate action
Proper and often resorted an can be the subject
of considerable state laws. Here, there is
already a ripening seed of controversy not just
an actual controversy.
Effect is quieting, pacify

Q. What are some of the grounds on which the court may decline to declare the parties rights on
contract, will or statue, or construe the instrument?
A. 1) Where a decision would not terminate the uncertainty or controversy which gave rise to the
action.
2) In any case where the declaration or construction is not necessary and proper at the time
under all circumstances. (Rule 64, sec. 5)
Q. There are some well-settled rules regarding the availability or non-availability of declaratory
relief. For instance, it is well-settled that declaratory relief is not available to test the validity of a
tax. Why? What is the reason for that?
A. Because the collection of taxes, even though the statute granting the right of the government
to collect taxes is invalid, cannot be enjoined.
Q. Or to declare Philippine citizenship? (to test citizenship)
A. Because of reasons of public policy. Whether a person is a citizen or not is already defined by
law.
Q. The validity of an ordinance imposing certain fees on certain merchants dealing with certain
goods was tested or challenged a declaratory relief action by an association of merchants who
were affected by the surcharge. The court in that action declared the ordinance invalid and
additionally, decreed that the fees and charges collected be refunded. Was it proper for the court
to make an order for refund in an action for declaratory relief?
A. As a general rule, an action for declaratory relief shall not be followed by any coercive decrees
of the court. However, in that case, the SC held that it was proper for the court to order the
municipal council to refund taxes in order to avoid multiplicity of suits. They need not convert the
action into an ordinary action since the SC already declared the ordinance null and void. (Matalin
Coconut Co. v. Mun. Council of Malabang)

XV.

REVIEW AND CORRECTION OF TRIAL COURT ERRORS

MOTION FOR NEW TRIAL


Q: There are various modes of obtaining a review of a judgement or order of the court. The
basis of the distinction is whether the order or judgement is already final. Another way of
distinguishing modes of review is whether it is with the same court or with another court.

Before the judgment becomes final, the modes of review are generally limited to the
issuing court itself. What are the modes by which one may obtain review of a judgment by the
issuing court before it becomes final?
A: Motion for Reconsideration (MR) or Motion for New Trial (MNT)
Q: Is there a difference between an MR and a MNT?
A: Yes. In an MR, the grounds are limited to the same case where the court made errors in
deciding the case.
In an MNT the grounds are specified in Rule 37, Sec. 1
Q: Is an MNT always a MR?
A: No.
Q: Is an MR a MNT?
A: Yes.
Q: What are the grounds for MNT?
A: 1. FAME- fraud, accident, mistake, excusable negligence;
2. Newly discovered evidence
3. Award of excessive damages, insufficiency of evidence to justify the decision, or that the
decision is against the law
SIR: In common parlance, Rule 37, Sec. 1 (c) is popularly called Motion for Reconsideration
Q: Is there a time within which MNT may be filed?
A: Yes. Within the period for perfecting an appeal - 15 days or 30 days as the case may be, from
notice.
Q: How many MNT may you file? Do we distinguish as to the court? As to the ground?
Because you can file the MNT in different levels of courts. Does it make any difference in what
court?
A: As to grounds - the Interim Rules provide that no second MR shall be allowed. The third
ground for MNT refers to the grounds for MR.
But as to the first two grounds, it is possible that a second MNT shall be allowed.
Q: What is your authority for that?
A: Rule 37, Sec. 4 - when the ground was not existing nor available at the time of the filing of the
first motion.
Q: How about in the Court of Appeals? Can you file a second MNT?
A: Yes. If the first motion resulted in the reversal of the original judgment. The party who lost
can file a second MNT.
Q: The time for filing an MNT is the time for appeal. Can the time for filing an MNT be extended?
A: Habaluyas v. Japson (142 SCRA 208), no, except when the case is pending in the Supreme
Court.

Q: Cannot the period for appealing be extended? How about the time for filing a notice of
appeal? Can it be extended?
A: Lacsamana v. IAC., No, in ordinary appeals.
Q: What are the other kinds of appeals?
A: Appeals in special proceedings or multiple appeals. Court allows extension.
Q: The Lacsamana case does not cover the filing of notice of appeal from the inferior court to the
RTC, does it?
A: It is covered. It cannot be extended if from the inferior court to the RTC.
Q: RTC to CA?
A: No extension.
Q: Are you telling us that the period for filing a notice of appeal from the RTC to the CA cannot be
extended, regardless of whether it is an appeal from the decision of the RTC in an original case,
or a decision of RTC in an appellate case?
A: There is a distinction:
1. RTC to CA - no extension
2. MTC to RTC to CA - the 15 days can be given an extension of another 15 days.
Q: Or if it goes to the SC?
A: Yes.
Q: Where is the rule which says that if you file your MR on the last day for appeal, you have the
whole next day after you receive the denial within which to perfect an appeal?
A: Rule 41, Sec. 3, 2nd paragraph.
Q: One student said that you can file a second MNT, meaning when the ground is 1 (a) or 1 (b) of
Sec. 1, Rule 37. You agree? You can file 2nd MNT?
A: Yes.
Q: Within what time can you file 2nd MNT?
A: Rule 37, Sec. 4 - "filed within the time herein provided excluding the time during which the 1 st
motion has been pending."
Q: Just subtract. It is just like the time for appealing. You subtract the time during which the
MNT was pending.
Assume that the first MNT is filed on the 15 th day from notice of the judgement. And then,
according to the Rule 41, sec. 3, you have the whole of the following day that you received the
order to appeal. Can you use that extra day to file a 2 nd MT?
SIR: According to Rule 37, Sec. 4 you have the remaining time within which to appeal, within
which to file a MNT minus the time that the 1 st was pending. You have still one more day
according to Rule 41, Sec. 3, so if you have one more day appeal, you have that other day within
which to file a 2nd MT.

But there is a query whether it can be used for the filing of a 2 nd MNT. The SC only said
that it cannot be used for a Motion for Execution ending appeal. It did not say it can only be used
for appeal. So, I don't know if it can be used for a 2 nd MNT.
Although a student was arguing that the clear wording ways that you have that extra day
within which t appeal. Pwede bang magamit iyon for some other purpose? The SC seems to
insinuate that no - you cannot file a motion for Execution Pending Appeal anymore on that extra
day.
But Rule 37, Sec. 4 also says that the only day you have to appeal, you can file MNT.
Q: You know what a pro-forma MR is? You know that if the 2 nd MR does not meet the
requirements - what is the danger?
A: You lose your right to appeal. Decision becomes final and executory.
SIR: It is a pro forma MR if:
1. It fails specifically to point out the findings and conclusions of the judgment as
required by Rule 37, Sec. 2 par. 2;
2. It does not contain a notice of hearing in accordance with the Rules;
3. It raises grounds which were already considered by the court in its decision. If it
does not raise any argument. If it repeats the same arguments which were raised,
say, in your memorandum before decision.
Usually, before judgment, the parties, especially in very complicated cases are requested
to file memoranda. If the arguments in the MR are the same arguments which were
raised in the memoranda and were already considered by the court, such a MR has been
ruled as pro forma. If you repeat the same arguments that you made in your
memorandum in your MR, then that MR is pro forma. It is very dangerous. If you do that,
you do not interrupt/ toll the period for appeal. Which means, that you might be shocked
to find out that the decision had become final.
It is not bad practice unless you really have something new to say, especially
after you have filed a memorandum, to just go ahead and appeal.
Q: What is the effect of the grant of a MNT?
A: It depends on what ground the new trial is granted - if it is granted under Sec 1 (a),
(b), and (c).
If it is granted under (a) or (b) - trial de novo.
Q: Suppose the ground is (b)?
A: Trial de novo and particular newly discovered evidence should be received.
Q: If (a)?
A: Evidence of record will stay and if necessary, the introduction of new evidence will
take place.
Q: When is a motion for new trial pro forma?
A: when it fails to point out SPECIFICALLY the FINDINGS or CONCLUSION of the judgment
which are contrary to law, making express reference to the testimonial or documentary evidence
or to the provision of law alleged to be contrary to such findings or conclusions.
Q: How many motions for NT may be filed in the trial court?
A: No answer.

Note: There are 3 broad grounds for a MB\NT under Rule 37 , S. 1 (a to c). If the MNT is placed
under , it is commonly known in legal parlance as a MFR. So MFR is always a MNT. If you will
notice , there are requirements for motion whether the ground is A, B or C and also effects when
motion is granted under a, b, or c/ this is one way of arguing that MFR is only under c.
Q: A complaint under RTC is dismissed on Ds motion on the ground that the court has no
jurisdiction over the subject matter. The P moves in due time for MFR and the motion was
denied. Then he went up on certiorari questioning the denial. The D said that the MFR is
defective because it did not contain an affidavit of merit. Is D correct?
A: NO. the affidavit of merit is not necessary. This is based under letter and affidavit of merit
only is needed for letter a (?)
Q: How about in b, is AM required?
AL YES, it involves allegation on the part of the P and defense on the part of D which is
necessary in the case.
Q: Judgment is rendered in favor of P and v. D on 1 July and served on 1 July on D. On 14
July, D filed a MFR. On 1 Sept., the court denied the MFR of D. When is the first day to
appeal.
A: 5 DAYS after 1 Sept (no case less 5 days) so on 6 Sept.
Q: Suppose there is an order granting new trial, then new trial was held and on 1 Sept.,
there is an amended decision, when is the last day to appeal?
A: (five days pa rin di ba?)
Q: When is entry of judgment material?
A: In Petitions for Relief from Judgment (R 38) and in Execution for the motion.
Q: Is a MFR a condition precedent to filing of an appeal?
A: No.
Q: Suppose after trial is concluded, court requires party to submit memorandum and
judgment was rendered in favor of P and v. D. Then D filed MFR reiterating what he had
written in the memorandum. Is that pro-forma?
A: Not necessarily.
RULE 41
APPEAL FROM THE RTC
WHEN TAKEN:
If notice on appeal:
If record on appeal:

Within 15 days from notice of the J / FO appealed from


Within 30 days from notice of the J / FO appealed from

CONTENTS OF NOTICE ON APPEAL:


(1)
(2)
(3)
(4)

Parties to the appeal;


Judgment or final order or part thereof appealed from;
Court to which the appeal is being taken;
The material dates showing the timeliness of the appeal

CONTENTS OF RECORD ON APPEAL:


(1) Full names of all the parties to the proceedings;

(2) Judgment or final order from which the appeal is taken;


(3) In chronological order, copies of such pleadings, petitions, motions, and all
interlocutory orders as are related to the appealed judgment or final order for the
proper understanding of the issues involved;
(4) Data that will show that the appeal was perfected on time;
GROUNDS FOR DISMISSAL OF APPEAL:
(1) Appeal taken out of time
(2) Non-payment of docket fees (See 2000 midterms)
WHEN APPEAL DEEMED PERFECTED:
If notice of appeal:

As to appellant, upon filing of the notice of appeal in due time

If record on appeal:

As to appellant, with respect to the subject matter of the appeal,


upon approval of the record on appeal filed in due time

WHEN LOWER COURT LOSES JURISDICTION:


If notice of appeal:

Upon perfection of the appeals filed in due time and the


expiration of the time to appeal of the other parties

If record on appeal:

With respect to the subject matter, upon approval of the records


on appeal filed in due time and the expiration of the time to
appeal of the other parties

RULE 42
PETITION FOR REVIEW FROM THE RTC TO THE CA
WHEN TAKEN:

Petition should be filed and served within 15 days from notice


of the decision sought to be reviewed, or
Within 15 days from the denial of the motion for new trial or
reconsideration filed in due time after judgment.

HOW APPEAL TAKEN:


(1)
(2)
(3)
(4)

File a verified petition for review with the CA.


Pay to the clerk of court the corresponding docket and other lawful fees.
Deposit the amount of P 500.00 for costs.
Furnish the RTC and the adverse party with a copy of the petition.

CONTENTS OF PETITION:
(1) Full names of the parties to the case, without impleading the lower courts or judges
thereof either as petitioners or respondents;
(2) Specific material dates showing that it was filed on time;
(3) Concise statement of the matters involved, the issues raised, the specification of
errors of fact or law, or both, allegedly committed by the RTC, and the reasons relied
upon for the allowance of the appeal;

(4) Clearly legible duplicate originals or true copies of the J / FO of both lower courts,
certified correct by the clerk of court of the RTC;
(5) The requisite number of plain copies thereof and of the pleadings and other material
portions of the record as would support the allegations of the petition.
(6) Certification under oath against forum-shopping
GROUNDS FOR DISMISSAL OF THE PETITION:
(1)
(2)
(3)
(4)

Non-payment of docket and other lawful fees;


Non-deposit for costs;
Non-compliance with proof of service of the petition;
Failure to comply with the requisite contents and documents that should accompany
the petition;
(5) Petition is patently without merit;
(6) Petition is prosecuted manifestly for delay;
(7) The questions raised in the petition are too unsubstantial to require consideration.
WHEN APPEAL DEEMED PERFECTED:
As to petitioner, upon the timely filing of a petition for review and the payment of the
corresponding docket and other lawful fees.
WHEN RTC LOSES JURISDICTION:
Upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the
other parties.
If notice of appeal:

Upon perfection of the appeals filed in due time and the expiration
of the time to appeal of the other parts

If record on appeal:

With respect to the subject matter, upon approval of the records


on appeal filed in due time and the expiration of the time to appeal of the
other parties

EFFECT OF APPEAL: Shall stay the judgment or final order


EXCEPTIONS:

(1) If the case is a civil case decided under the Rule on


Summary Procedure;
(2) If otherwise provided by the CA, the law, or the Rules
of Court.

RULE 43
APPEALS FROM THE CTA and QUASI-JUDICIAL AGENCIES TO THE CA
WHEN TAKEN:

Within 15 days from notice of the award, judgment, final order or


resolution; or
Within 15 days from the date of its last publication, if publication is
required by law for its effectivity; or
Within 15 days from the denial of petitioners motion for new trial or
reconsideration duly filed in accordance with the governing law of the
court or agency a quo.

HOW APPEAL TAKEN:


(1) File a verified petition for review with the CA in 7 legible copies, with proof of service
of a copy thereof on the adverse party and on the court or agency a quo.
(2) Pay to the clerk of court the corresponding docket and other lawful fees.
(3) Deposit the amount of P 500.00 for costs.
Note: Exemption from payment of docketing and other lawful fees and the deposit for costs may
be granted by the CA upon a verified motion setting forth valid grounds therefor.
CONTENTS OF PETITION:
(1) Full names of the parties to the case, without impleading the courts or agencies
either as petitioners or respondents;
(2) Concise statement of the facts and issues and the grounds relied upon for the
review;
(3) Clearly legible duplicate original or certified true copy of the award, J / FO or
resolution appealed from, together with certified true copies of such material portions
of the record referred to therein and other supporting papers; and
(4) Sworn certification against forum-shopping;
(5) Specific material dates showing that the petition was filed within the period fixed in
the Rules.
GROUNDS FOR DISMISSAL OF THE PETITION:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)

Non-payment of docket and other lawful fees;


Non-deposit for costs;
Non-compliance with proof of service of the petition;
Failure to comply with the requisite contents and documents that should accompany
the petition;
Petition is patently without merit;
Petition is prosecuted manifestly for delay;
The questions raised in the petition are too unsubstantial to require consideration;
Absence of prima facie showing that the court or agency concerned has committed
errors of fact or law that would warrant reversal or modification of the award, J / FO
or resolution sought to be reviewed.

EFFECT OF APPEAL: Does not stay the award, judgment, final order or resolution
EXCEPTION:

If the CA directs otherwise upon such terms as it may deem


just (Sec. 12)

XVI. ENFORCEMENT OF JUDGMENTS


3 Types of Judgment
1. Money Judgment

Procedure
a) Motion for execution
b) Order of execution

c) Writ of execution
d) Levy Levy is effected by taking physical possession or by garnishment

Under Sec. 9 (b), Rule 39, the judgment debtor is given the option to choose which
property the officer shall levy. If the judgment debtor does not exercise the option,
the officer shall first levy on personal property if any and then on real properties if the
personal properties are insufficient.

Execution Sale
a) Notice
Written notice in 3 public places preferably in conspicuous areas of the
municipal or city hall, post office and public market.
Duration of notice will depend on the type of property.
Notice by publication is also necessary in case the sale involves real
property if such real property exceeds P50,000. The notice must be
once a week for 2 consecutive weeks in a newspaper selected by
raffle, whether in English, Filipino or any major regional language.
The notice requirement is for the benefit of the judgment debtor. The
notice informs potential bidders of the sale. This facilitates debt
rehabilitation.
If these notice requirements are not complied with, the sale is voidable
at the instance of the judgment debtor unless the judgment debtor was
in connivance with the sheriff.
Sec. 17, Rule 39 provides the penalty for selling without notice,
removing or defacing notice.
b) Auction

The auction sale can be postponed under Sec. 22, Rule 39. However,
there must be a notice as to postponement.
The highest bidder shall get the object being sold. The highest bidder
must always pay cash. Even if the judgment creditor is the highest
bidder, he must pay cash when theres a 3rd party claim,

c) certificate/deed of sale
d) redemption(s) There might be more than 1 redemption.
Only real property may be redeemed.
The following persons may redeem (Sec. 27, Rule 39)
1. judgment obligor
2. redemptioner a creditor having a lien by virtue of an
attachment, judgment or mortgage on the property sold, or on
some part thereof, subsequent to the lien under which the
property was sold.
If the redemption is made by the judgment debtor then there can be no
more possible redemptions.
The period for redemption cannot be extended.
During the period of redemption, possession remains with the
judgment debtor. If there is a lease, the rents would go to the
judgment debtor.
2. Judgment for Specific Acts
a) Conveyance, delivery of deeds, or other specific acts; vesting title
b) Sale of real or personal property

c) Delivery or restitution of real property


d) Removal of improvements on property subject of execution
e) Delivery of personal property
3. Special Judgments

An example of a special judgment is a judgment ordering a judgment debtor to sing in


a concert.
If the judgment debtor does not wish to comply with the special judgment, then he
may be cited for contempt.

Under Sec. 13 (k), Rule 39, life insurance proceedings are exempt. There is no limit as to
the amount. Under Sec. 13 (d), Rule 39, necessary clothing is limited for ordinary
personal use.
3rd parties have the same remedies as in provisional remedies except intervention. The
3rd party is not a party to the case. Since he is not a party, he can always file damages in
a separate action.
6. 3rd party claim
If the 3rd party claim is denied by the court, the 3 rd party claimant
cannot attack the denial via Rule 65, certiorari. The remedy of
the 3rd party claimant would be to intervene.
7. reinvindicatory action action to recover title
8. damages recover against the indemnity or sheriffs bond within 120 days
from the date of the filing of bond
9. cancel annotation see Property Registration Decree
These remedies are cumulative (not mutually exclusive). However,
the 3rd party claimant cannot recover twice.
4 Proceedings in Aid of Execution
(1) examination of judgment debtor
(2) examination of the debtors of the debtor
(3) installment
(4) receivers
FLOW OF EXECUTION
1.
2.
3.
4.
5.

Judgment, then it becomes final, then you


Move for execution
Order of execution
Writ of execution
Levy. The procedure in execution sale is more in ordinary judgment or judgment for
payment of a sum of money.
6. Sale. In sale, you have procedure: notice, publication, auction, certification, delivery,
registration, redemption.
Q: What are the grounds to stay execution of final judgment?
A:

1. relief
2. injunction
3. equitable grounds
Q: Within what time may you move for execution of judgment?
A: 5 years.
Q: Suppose there is an injunction v. the enforcement of a judgment during that five-yr
period, do you deduct the time during which the injunction was enforced from the running
of the 5-yrd period? Suppose the compromise provides for the default to pay an
installment, will the 5-yrd period run?
A: No answer.
Q: Suppose the execution writ was issued within 5 yrs , can it be levied after five years?
A: Not by motion but by independent action.
Q; Can you levy the writ after 5 yrs?
A: After 5 yrs from date of entry of judgment or from date it becomes final and executory, and
before it is barred by the statute of limitations, a judgment may be enforced by action.
Q: What is the chronology of execution procedure?
A:
1. Motion for Execution
2. Order of Execution not appealable
3. Writ of Execution issued by clerk of court in name f the court in which J/Order is entered;
you give the writ to the sheriff; date when you gave writ to sheriff has legal significance (this
is when you start counting the 60 DAYS which is the lifetime of the writ)
4. Levy in execution
4.1. Third party claim
4.2. Demolition order
5. Sale
5.1. notice
5.2. auction
5.3. redemption
6. Return of Writ
Q: A revived judgment, can it also be revived?
A: YES, YOU HAVE ANOTHER 10 YRS TO REVIVE IT.
Q: What is the special judgment?
A: Judgment requiring the performance of ANY ACT OTHER THAN THE PAYMENT OF MONEY
or the sale or delivery of real property
Q: Classify Judgment
A: Judgment for payment of money (R 39, S. 15)
Judgment for delivery/sale
Q: What is an ordinary judgment for the recovery of money? How is it imposed when the J debtor
does not pay?
A: Levy on his personal property first before real.
Q: J for the delivery of real and personal property under S. 13.

In case of perishable properties, it is personal. Real property is not perishable.


Q. Example of perishable property?
A. Bananas.
Q. Notice requirement for bananas?
A. Rule 39, sec. 18 (a)
Q. Personal property not perishable?
A. Posting of the notice of sale in 3 public places where the sale is to be conducted.
Q. Notice requirement for real property?
A. Rule 39, sec. 13 (O) notice of sale and publication requirement
- 3 public places, notices of sale.
- In the place where the property is to be sold and in the place where the sale is to be
conducted, and the place where the property is situated hence in 6 public places.
- Publication requirement is necessary if the value of the property exceeds P400.00
published in the newspaper of general circulation in the places where the property is
situated.
Q. How many newspapers and for how long?
A. Rule 39, sec. 18.
Q. Can you publish a notice of sale of a property here in Makati in the El Ponente?
A. No, because it is not a newspaper of general circulation in the province where the property is
located?
Q. What is the significance or purpose of the notice? What will happen to the sale if any of the
requirement is not fulfilled.
e.g.
it is only published for 19 days or 2 weeks or if the newspaper is not of general circulation
of rif there is a newspaper of general circulation in Spanish and it is not published in the
newspaper or it is reported only in 2 newspapers or if it is posted only in 2 public places, what is
the effects if any of these requirements is not fulfilled?
A. It depends, if the creditor induce the sheriff to proceed with the sale notwithstanding noncompliance with the requirement, the sheriff can be sued for actual damages.
Purpose of the requirement as to notice, publication?
A. Due process.
Q. For whose interest is the publication and notice requirement?
A. For the interest of the judgment debtor.
Q. How does this requirement tend to subserve the interest of the judgment debtor?
A. To enhance the debt repaying capacity of the property, to minimize its repayment value. The
more who knows the greater is the chance that more bidders will bid and the better price you
are likely to get.
Q. Anybody disqualified from purchasing in the execution sale?
A. Sheriff, presiding judge, deputy sheriff, lawyers who participated in the case.
Q. Why is the lawyer of the debtor disqualified?
A. There might be a clash in their interest.

Q. A right of redemption is allowed if the property sold is real property. What is the purpose of
the law in allowing successive redemption?
A. To maximize the debt repaying capacity of the property because usually execution sales are
forced sale and therefore sacrifice sales.
Q. Who may redeem?
A. Judgement debtor and its successors in interest and redemptioner (sec. 29, Rule 39)
Q. Who is a redemptioner?
A. Creditors of the debtor subsequent to the judgment.
Q. Period of redemption.
A. Sec. 30, Rule 39.
Q. What is the difference between a redemption of a judgment debtor and a redemption of a
redemptioner?
A. In case of a judgment debtor the period is within 12 months from the date of the sale. In the
case of a redemptioner, the period is within 60 days from the last redemption.
As the amount payable upon redemption : by judgment debtor pay the purchase price,
taxes paid by the judgment creditor and interest of 1% per month; by redemptioner price
which constitutes the value of the lien of the subsequent redemptioner and interest of 2% per
month plus taxes paid.
Another important distinction between a redemption of redemptioner and redemption by a
judgment debtor is that if it is the judgment debtor who redeems, no further redemption is
allowed.
Q. Plaintiff v. Defendant. Judgement is for P100,000. Execution was levied upon the property of
the defendant and is sold for P50,000. It is sold to X thereafter and after the levy and before
the sale, the property was mortgaged to Y for P25,000. If the defendant should like to redeem
the property from X, how much does he pay?
A. P50,000 plus taxes plus interest.
Q. Y is also qualified to redeem. Can he redeem ahead of the defendant?
A. Yes.
Q. How much does Y have to pay to redeem?
A. P50,000 plus taxes plus interest.
Q. If there is another mortgage (D) after him for P10,000 can D also redeem? Can he redeem
pay of X?
A. Yes, he has to pay P50,000 to X plus interests.
Q. He does not have to pay the P25,000?
A. No.
Q. If Y can redeem ahead of the defendant, what will happen to the defendant, can he still
redeem the property after Y has redeem it?
R. Yes. (questionable, sir did not give the right answer)
Q. How much time does he have to redeem it?
A. 12 months.
Q. How much does the defendant have to pay Y for him to redeem the property?

A. Cost of lien which is P50,000. If the defendant will redeem the property directly from Y then
he only has to pay P50,000.
Q. Can a redemptioner redeem ahead of the judgment debtor?
A. Sec. 31, Rule 39 provides that a judgment debtor in effecting redemption must make the
same payment as a redemptioner does. Then that presupposes it might be that the
redemptioner goes ahead.
Q. What are the payments to be made by the redemptioner?
A. Sec. 30, Rule 39. Amount paid by the purchase is 1% interest together with the amount of
any assessments or taxes which the purchaser may have paid plus interest.
Therefore is judgment debtor redeems from a redemptioner, he must pay what the
redemptioner paid plus interest. That means a redemptioner can go ahead.
e.g. Judgment debt P100
Property of the debtor levied upon and sold for execution for P30. It was sold to X. If the
judgment debtor wants to redeem the property, how much would he pay to s? P30 + interest.
If after the judgment was levied on the property which was sold for P30, the debtor
mortgagee; the property for P20 to (also)?, but X who is a mortgagee of the property, the
mortgage came after the levy of execution but X bought it at the foreclosure. How much
should the judgment debtor pay X to recover the property? P30 + interest.
If you want the property badly and it is worth more than what it might draw at an
execution sale (an execution sale is a sacrifice sale). You will never get the fair market value
here, so it is better to lend the debtor money on the security of the property which was
already levied upon and then you buy the property because for the debtor to redeem it from
you he has to pay both for what you pay for it plus P20.
Q. Who is entitled to the rents pending redemption?
A. It depends who is in possession of the property. If the property is in the possession of a third
person or a tenant, the rents will go to the judgment creditor and rents received will be
credited from the redemption money. If the property is in the possession of the judgment
debtor he is not required to pay rents. This is not unfair because the purchaser is supposed to
get a 1% a month interest to make up for the difference between the fair market value and the
value at which he paid. It is considered that he got a bonus because he bought it cheap.
Ex:
A. Dasmarinas property rented out to a foreigner for P40,000 a month.
B. Judgment against its owner and it was levied upon and sold on execution to X for P3M.
C. Pending redemption at the time of the sale it was being leased to a foreigner for P40,000
a month.
D. To whom will the rent go?
to X, P40,000 x 12 months = P480,000
E. How much will the redemptioner money be?
P3M P480,000 P2520 interest.
Q. What is the difference between redemption by judgment debtor and redemtion by
redemptioner?
A. If redemption made by the judgment debtor, no further redemption is allowed under sec. 31
Rule 39.
Q

Is it possible for the redemption period to go ahead beyond one year?

A. Yes, when during the period of redemption a suit is brought to destroy the right to redeem and
judgment is rendered in favor of the existence of the right of redemption.
Another reason is stated under Sec. 34.
The execution sale is conducted by auction sale between the hours of 9am to 5 pm.
Q. What are the actions against a reneging bidder?
A. 1) He is liable for the amount of the loss difference between the amount which have been
realized and the amount which was actually realized.
2) Contempt
Redemption is to maximize the debt repaying capacity. That is why successive redemption is
allowed. If judgment debtor redeems it he does not have to pay the balance of P100, only P50
because the lien of the judgment creditor is also derived from the judgment which is the subject of
execution.
What execution is returned unsatisfied, what is the remedy of the judgment creditor?
A.
B.
C.
D.

_____________ of judgment debtor.


_____________ of _____ of judgment debtor.
Debtor may pay execution against creditor.
Order For Application of Property and income to satisfaction of judgment in fixed monthly
installment.
E. Appointment of a receiver
F. Sale of ascertainable interest of judgment debtor in interest
Junior encumbrances usually redeems the property because it is in this way that his lien can be
paid. He can also redeem ahead of someone more senior to him.
How is satisfaction of judgment entered?
By who?
Sec. 46, Rule 39.
Illustration: A v. B. If the judgement is adverse to B, the right of redemption of B cannot be levied
upon by A. Suppose there is another case C v. B (another plntf) and a judgment against B was
rendered then C can levy on Bs right to redeem the property subject of the first case (A v. B).
THIRD PARTY CLAIMS:
Procedure is the same as in attachment. The remedies of a third
party claimant are same with the exemption of the third party complaint, in an execution for
bidding unlike a third party claimant in an attachment proceeding intervene.
Q. What are the remedies of a person who claims a right or interest or title on property levied
upon on attachment?
A.
1.
He can file a third party claim. (What the third party claim will recite, with whom
will he file it, we have already taken that up)
2. He can file an action for damages against the indemnity bond filed by the judgment
creditor.
3. He can intervene in the action under Rule 12.
4. He can file a petition if the levy is on real property for the removal of the annotation of
levy on the ground that it is done through error or mistake under the Property Registration
Decree.

5. He can bring a separate reinvindicatory action against the sheriff, and the levying creditor
in which he can also ask for a writ of _______(?).
In all these remedies are available to a third party claimant in an execution for except
that he cannot intervene because trial has already ended and intervention can only be done
before and or during trial.
Q. What are the notices for execution sale?
A. sec. 18, Rule 39
Kinds of notice in this kind of sale:
a. posting
b. publication

XVII. SPECIAL CIVIL ACTIONS


What is a special civil action? How is it distinguished from an ordinary civil action?
Special civil actions are the actions provided for by the Revised Rules of Court from Rules 62 to
71, all basically ordinary civil proceedings. They include interpleader, declaratory relief, certiorari,
prohibition, quo warranto, eminent domain, foreclosure of mortgage, partition, forcible entry and
unlawful detainer and contempt.
What makes them special are the distinct peculiarities inherent in their very nature not found in
ordinary civil actions. For example, in an action for foreclosure of mortgage, two judgments are
possible; this is not true in ordinary judgments of the court.
In an ordinary civil action, for a plaintiff to go to court, two basic factors must be present: he must
have a right, and this right is violated by the defendant, thereby causing prejudice or damage.
However, in a special action, it is not necessary for these 2 factors to be present. For example, in
an action for declaratory relief, before breach of the contract, any of the parties may institute an
action in court for a determination of any question of construction or validity arising under the
instrument or for a determination and declaration of his rights and duties thereunder.
FORCIBLE ENTRY AND UNLAWFUL DETAINER
By the very provisions of the rules, a judgment in an action for unlawful detainer is
conclusive only on the issue of possession such that even if the judgment may contain some
statements about ownership or other matters, it is not conclusive even between the same parties
on any matter other than possession.
Forcible entry and unlawful detainer are given special treatment because they affect
public order. Instant relief is needed since the situation is volatile. If this were an ordinary action,
then the action would be for rescission of contract.
The procedure here is summary. There are prohibiting pleadings. Postponements are
not allowed. The judgment is immediately executory.
If the period to file a case of unlawful detainer lapses, then accion publiciana will lie.
Under Sec. 2, Rule 70, in unlawful detainer cases, there is a need for a prior demand.
The demand must be to vacate and to pay the rent. The demand SHOULD NOT be to vacate or

pay the rent. Otherwise, this will not qualify as an unlawful detainer since the lessee is given an
option.
Tacita reconducta means impliedly renewed. This occurs if the lessor allows the lessee
to stay.
Problem: Plaintiff lessor files an unlawful detainer case against the lessee. Plaintiff loses. He
appeals. He wins the appeal. Is this immediately executory?
Answer: Yes, under Sec. 21.
Problem: Does the immediate execution refer to vacate or to pay the rentals?
Answer: Prof. Bautista didnt answer.
Problem: What if the tenant does not vacate, can he be held in contempt?
Answer: No, the order is not directed to the tenant. It is directed to the sheriff. The sheriff can
bodily throw out the tenant. If improvements must be removed, then the sheriff needs a special
order.
Q: Can the MTC grant a writ of preliminary mandatory injunction in an unlawful detainer
case?
A: YES. See Rule 70, Sec. 15.
Q: May a person not in possession of the premises bring an action for unlawful detainer
of these premises?
A: Yes, as where the action is brought by a vendee or other person against whom the possession
is unlawfully withheld after the expiration or termination of the right to hold possession.
(Pangilinan v. Aguilar, 43 SCRA 136)
Q: In an ejectment case, the MTC ordered the defendant to vacate the leased premises
and to pay a monthly rental plus attorney's fees. On appeal, defendant deposited the
current rentals with the RTC. But the RTC granted plaintiff's motion for execution on the
ground of defendant's failure to file a supersedeas bond. Is the order of execution
correct?
A: No. Rule 70, Sec. 19 requires a supersedeas bond only if there are rentals in arrears. The
attorney's fees need not be covered by a supersedeas bond. (De Lauriano v. Adil, 72 SCRA 148)
Q: T was leasing his apartment from L at P 5,000.00 a month under a written contract for
one year. One month before the expiration of the lease, L served a demand upon T to
vacate the premises upon its expiry because he was going to demolish the building. T
refused to vacate. In consequence, L's building plans were delayed. So L brought an
action for unlawful detainer against T and obtained judgment therein directing T to pay
him the P 5,000.00 stipulated rental and P 500.00 a day for every day of delay as damages
until he finally vacates the premises, plus P 10,000.00 attorney's fees. Is the decision
objectionable in any way?
A: Yes. The award of P 500.00 a day for damages cannot properly be made in an unlawful
detainer action where the only damages recoverable are those which are caused by the loss of
the use and occupation of the property and not such damages as may be recovered only by the
plaintiff if he were the owner and he cannot be declared as such in an unlawful detainer action.
The award of attorney's fees is proper, though. (Reyes v. CA)
A and B inherited from their father C, a parcel of land in 1985. IN 1992, D forcibly entered
into and took possession of the property. May A by himself and without including B as his
co-plaintiff, bring an action for ejectment against D?
Yes. Anyone of the co-owners may bring an action for ejectment. (NCC 487)

Can an MTC award moral and exemplary damages in an unlawful detainer suit?
No. The only damages that can be recovered in an unlawful detainer suit are the fair rental value
or the reasonable compensation for the use and occupation of the real property. Other damages
must be claimed in an ordinary action. (Felisilda v. Villanueva, 139 SCRA 431)
Unlawful detainer action by P against D was decided in P's favor by MTC. On P's motion,
MTC granted execution pending appeal for D's failure to post a supersedeas bond. D
challenged the validity of the immediate execution for having been issued without any
previous notice to him. Rule.
The order of immediate execution is OK. (?) MTC is not duty-bound to notify D of immediate
enforcement of the appealed decision. It is the prevailing party moving for execution pending
appeal who is obliged to serve a copy of such motion on the adverse party's counsel. (De los
Santos v. Montesa, 221 SCRA 15)
P filed a complaint for unlawful detainer against D in the MTC. In his complaint, P prayed
for judgment ordering D to vacate the leased premises and to surrender them to P,
declaring the residential building constructed on the lot by D as forfeited in P's favor, and
adjudging D liable to pay accrued rentals and P 5,000 attorney's fees to P. After D filed his
answer, the MTC rendered a judgment on the pleadings granting all the reliefs prayed for
in P's complaint. Is this judgment assailable on any jurisdictional grounds?
DECLARATORY RELIEF
What is the purpose of a declaratory relief device?
It does not require the party to wait to violate the law before it can acquire vested rights. So, it is
an opportunity for the party without having to violate but they have already acquired vested rights.
(Eh?)
Distinguish an advisory opinion from a declaratory judgment.
An advisory opinion is rendered at the request of the executive or legislative department.
A declaratory judgment is a proceeding determinative of the rights of the parties to the case.
When a party has doubts about a certain act, can the party file an action for declaratory
relief in the SC? Does the SC have jurisdiction over such a case? Can it render a
declaratory relief judgment?
Is the granting of declaratory relief discretionary?
Yes.
What will give forth to the court's discretion whether to grant or deny declaratory relief?
In what instances is declaratory relief not appropriate?
(1) Citizenship
(2) Invalidity of a tax ordinance where the tax is due and demandable

CONTEMPT
The RTC rendered judgment ordering D to vacate a certain house and deliver it to P. This
judgment became final but D refused to vacate the house despite service upon him by the
sheriff of the writ of execution. For refusing to comply with the writ of execution, P moved
to have D cited and adjudged in contempt. Should the motion be granted?
The motion for contempt should be denied. The writ of execution, being for the delivery of real
property (Rule 39, Sec. 8 (d)), is addressed to the sheriff and not to D. So, D cannot be punished
for contempt for his alleged disobedience of an order not addressed to him. (Lipata v. Tutaan,
124 SCRA 877)
P sued D in the RTC to recover a parcel of land. Judgment was rendered in P's favor
directing D to reconvey the land to P. A writ of execution and a writ of possession were
subsequently issued. In an effort to enforce the writ of possession, the sheriff sought to
physically remove X and Y, the alleged occupants, from the subject land. For refusing to
vacate the land, P moved to have X and Y cited for contempt. Should the motion be
granted?
No. X and Y were not parties to the case in which the judgment was issued and so this judgment
cannot bind them. Moreover, the writ of possession was addressed to the sheriff, not to X and Y.
It was a process intended to enforce a judgment for the delivery of the possession of real property
as contemplated by Rule 38, Sec. 8 -- not a special judgment under Sec. 9 of Rule 39,
disobedience to which may be punished by contempt. For P to recover the properties from X and
Y, P has to file another action. (Gatchalian v. Arlegui, 75 SCRA 234)
Judgment for a sum of money was rendered by the RTC against D and in favor of P.
Execution of this judgment was levied on a parcel of land owned and occupied by D. The
land was sold on execution sale to P. After the expiration of the redemption period, D
refused to vacate the land despite the issuance of a writ of execution and possession. P
then moves to have D cited for contempt. Is D liable for contempt?
No. What would constitute contempt is the pre-entry of D after possession has been delivered to
P by the sheriff in enforcement of the writ of execution. The writ of execution is addressed solely
and exclusively to the sheriff who is called upon to oust D and place P in possession. D's mere
refusal or unwillingness to vacate the property is not contempt. (Flores v. Ruiz, 90 SCRA 428)
CERTIORARI, PROHIBITION AND MANDAMUS
We take them up as modes of review of trial court actions although these prerogative writs are
available as modes of review not only of judicial actions but even of actions of quasi-judicial
government bodies.
The requisites are generally the same, whether the mode of review is directed at a trial court or at
an administrative body, and we study them as modes of review of trial court actions which are the
modes they are commonly used as in a defense. They usually are asked for in tandem -certiorary and prohibition, or C, P & M. Their elements are similar.
As to the history of these prerogative writs, these remedies emanated from the Court of
Chancery. These remedies were instituted by a king to temper the harshness of the judgments of
the law courts and to avoid the clash between the courts of law and the courts of equity. These
equitable remedies were granted only when the remedies of law were not adequate.

Certiorari as a mode of review of trial court action is available only when there is no appeal or
other remedy. So when we are thinking of the modes of attacking a judgment, we always put at
the bottom Rule 65, certiorari. When all else is lost, there's always Rule 65. In a Rule 65
certiorari, it is limited to a review of the records. Facts are not tried, so evidence is not received.
That is why you can not file a petition for Rule 65 certiorari to review an order of default and you
cannot avail of the motion to set aside an order of default, or a petition for relief. (?) Even if the
other remedies are no longer available, it does not mean that these extraordinary writs are
available. You must show that you did not lose those other remedies by neglect.
Mandamus is available to compel the performance of a mandatory duty mandated by law.
Where the act to be performed is discretionary, its performance cannot be compelled by a
mandamus although the exercise of discretion may be compelled by mandamus but not the
exercise of discretion in a particular way.
Mandamus is also used as a mode of testing entitlement to an office. In this case, we have to be
careful in distinguishing it from quo warranto. IN mandamus, the occupant of the office is an
absolute usurper and the petitioner claims no title to it for himself.
Prohibition can be used not only to stop actions not yet performed but also to undo acts already
done on the principle that equity affords a complete relief.
CERTIORARI
Certiorari Rule 45 differentiated from Rule 65

In appeal by certiorari, the petition is based on questions of law which the


appellant desires the appellate court to resolve. In certiorari as an original action, the
petition raises the issue as to whether the lower court acted without or in excess of
jurisdiction or with grave abuse of discretion.

Certiorari, as a mode of appeal, involves the review of judgment, award or final


order on the merits. The original action for certiorari may be directed against an
interlocutory order of the court prior to appeal from the judgment or where there is no
appeal or any other plain, speedy or adequate remedy.

Appeal by certiorari must be made within the reglementary period for appeal. An
original action for certiorari may be filed not later than 60 days from notice of the
judgment, order or resolution sought to be assailed.

Appeal by certiorari stays the judgment, award or order appealed from. An


original action for certiorari unless a writ of preliminary injunction or a temporary
restraining order shall have been issued, does not stay the challenged proceeding.

In appeal by certiorari, the petitioner and respondent are the original parties to
the action. In certiorari as an original action, the parties are the aggrieved party against
the lower court or quasi-judicial agency and the prevailing parties, who thereby
respectively become the petitioner and respondents.

In appeal by certiorari, the appellate court is in the exercise of its appellate


jurisdiction and power of review, while in certiorari as an original action, the higher court
exercises original jurisdiction under its power of control and supervision over the
proceedings of lower courts.


In certiorari for purposes of appeal, the prior filing of a motion for reconsideration
is not required while certiorari as an original action, a motion for reconsideration is a
condition precedent.
The following are the exceptional instances when a motion for reconsideration
need not be filed before a Rule 65 petition for certiorari:
e) where the order is a patent nullity
f) where the questions raised in the certiorari proceeding have been duly raised
and passed upon by the lower court, or are the same as those raised and passed
upon in the lower court
g) where there is an urgent necessity for the resolution of the question and any
further delay would prejudice the interests of the Government
h) where under the circumstances, a motion for reconsideration would be useless
i) where the petitioner was deprived of due process and there is extreme urgency
for relief
j) where the proceedings in the lower court are a nullity for lack of due process
k) where the proceeding was ex parte or in which the petitioner had no opportunity
to object
l) where the issue raised is one purely of law or where public interest is involved
Defendant was ordered by the MTC to produce certain documents. Claiming that the
documents are privileged, defendant refused to comply with the order. So, after due
notice and hearing, the RTC ordered defendant to be jailed until he complies with the order
to produce. Alleging MTC's grave abuse of discretion and want of jurisdiction, defendant
filed with the RTC a petition for certiorari seeking to set aside the RTC contempt order
directing him to be jailed. Is the certiorari petition proper?
No. Defendant has available to him the remedy of appeal and this is an adequate remedy
because the execution of the judgment is suspended pending the appeal. (Rule 71, Sec. 4 in
relation to Sec. 2)
PARTITION
May a court approve an extrajudicial partition among the co-heirs of a deceased who died
intestate and without debts, without the court first requiring the partitioning heirs to put up
any bond at all?
Yes. There is no need for a bond if only realty is partitioned and no personalty is distributed.
(Rule 74, Sec. 1 and 3)
QUO WARRANTO
Quo Warranto may be distinguished from election contests as follows:
The basis for quo warranto is that the occupant is disqualified from holding the office by reason of
ineligibility or disloyalty. An election contest challenges the right of a person to hold office on the
ground of irregularities in the conduct of elections for the said office. If the quo warranto
proceedings succeeds, the respondent will be ousted but the petitioner will not assume the office.
In election contests, the successful protestant will assume the office if he had obtained a plurality
of the valid votes.
EXPROPRIATION

An appeal may be taken from the order authorizing expropriation and, thereafter, another appeal
lies against the judgment on the just compensation. The significance of this fact is that, just as in
special proceedings, the reglementary period to appeal shall be 30 days and a record on appeal
shall be required for each of the permissible appeals. In the condemnation proceedings the
issues are whether or not there is a right to condemn and whether or not the property is
condemnable. In determining just compensation, the commissioners take into account unearned
or accrued benefit (Sec. 6, Rule67)
FORECLOSURE OF REAL ESTATE MORTGAGE
1. Execution Sale

There is right of redemption for real property.


There is no need for judicial confirmation of the sale.
The excess of the proceeds goes to the judgment debtor.

2. Real Estate Mortgage Foreclosure


(a) Judicial

There is no right to redeem. But there is what is called equity of redemption.

There is a need for confirmation of the sale. There is a need for confirmations
since the sale may be unconscionable or the buyer may have been prohibited
from purchasing the real property (i.e. auction officer, etc.)

The excess of the proceeds goes to the junior encumbrancers.

(b) Extrajudicial

There is a right of redemption within 1 year from registration of sale.

See Sec. 47 of the General Banking Law of 2000.

The excess of the proceeds goes to the junior encumbrancers.

Junior encumbrancers are necessary and not indispensable parties.

Note the difference in redemption in cases of REM foreclosure and execution sales.